4 ot F at Srna ~al a LAW BOOKSE LLER, ‘No. 137 Nassau Street, . Beekman, under Nassau Bank, 4 NEW-YORK. Te Sees Gornell Gaw School Library Cornell Uni ity Lib ee A3 1860 0 “ni i ii ag te THE LAW OF REAL PROPERTY OF THE STATE OF NEW-YORK, CONTAINING THE TEXT OF THE FIVE TITLES OF CHAPTER ONE, PART SECOND, FOURTH EDITION OF THE REVISED STATUTES ; THE NOTES OF THE REVISERS IN THEIR REPORT TO THE LEGISLATURE IN 1827; AND A FULL COLLECTION OF THE CASES DOWN TO THE PRESENT TIME. ARRANGED UNDER THE VARIOUS SECTIONS. BY T. M. LALOR, —-_ COUNSELLOR AT LAW. Si quid novisti rectius istis, Candidus imperti; si non, his utere mecum.—Hor. NEW-YORK: GEO. 8. DIOSSY, LAW BOOKSELLER AND PUBLISHER, 137 Nassav Srreer. 1860, 842267 Entered according to the act of Congress, in the year one thousand eight hundred and fifty-five, by JOHN J. DIOSSY & CO., in the Clerk’s Office of the District Court of the United States for the Southern District of New-York. a PREFACE. Tue rapidly increasing value of Real Property, and the absence of any work treating peculiarly of it as modified by our Revised Statutes, suggested to me the necessity of some such book as that which is now presented to the profession. All are aware that our Code of Laws underwent a most entire revision in the year 1830; and in no branch “of the law were more important alterations then effected, than in the ‘law of Real Estate. Those changes were made, with but few exceptions, in accordance with the suggestions of the Revisers—J oun Durr, Ben- samin F. Burier and Joun C. Spencer—who in their Report to the Legislature in 1827 stated fully and clearly, in the shape of a Note to -each section which they proposed for enactment, the then existing defects of the law, and the manner in which, in their opinion, the pro- “posed section would remedy such defects. These Notes are constantly ‘referred to by the judges when seeking the intention of the Legislature ;. ‘and in the case of Chappel v. Chappel (which will shortly appear in the second volume of the present series of the Court of Appeals’ reports), Chief Justice Garpiner, in speaking of the similar Notes written by the Codifiers when reporting the Code of Procedure, says: “We know that the purpose of those who framed the Code was such as has been suggested, for they so affirm in their report; and the presumption is that the Legislature concurred in their views, when they adopted the. section as it came from their hands.’”’ All of the sections of the Revised ‘Statutes contained in this volume, and which were enacted in the year 1830, were, with some few and unimportant exceptions, adopted by the Legislature as they came from the Revisers’ hands. And it has rarely ‘happened that courts, seeking to ascertain (what they should never lose sight of ) the intention of the framers of the law, have been furnished with such an easy means of arriving at that intention as is to be found ‘by consulting the Revisers’!Notes. But unfortunately these Notes, iv PREFACE. which form such an admirable running commentary on cach section, have been long out of print. It is believed that their republication, in the shape in which they now appear, will form not the least important part of this book. The general plan which I have followed has been, to give, 1. The text of the Revised Statutes: 2. The Revisers’ Note to each section, where the section was reported and commented on by them: and 3. A collection of the cases decided in our own State, and connected with the subject of the section under which they appear; giving first those on the law as it existed previously to the revision, and next those on the law as it is at present. ‘The reader is thus presented, at one view, with “ the old law, the mischief, the remedy, and the reasons of the remedy?— those time-honored aids in the construction of statutes. In some cases, as where the Revisers made no Note, or such a Note as rendered a col- lection of the old cases unnecessary, or where the section has been enacted since 1830, I have had to depart from this plan; but, as a gen- eral thing, I have followed it where practicable. The text is taken from the Fourth Edition of the Revised Statutes. With the Revisers’ Notes, I have taken the liberty of altering the tense: of the verbs, and of writing “the above section was enacted” instead of “we have proposed the above section,” and the like, so as to make. them more intelligible to the reader of the present day; and of occa- sionally omitting such parts of them as appeared unlikely to be service- able to the practicing lawyer—but this has been done as sparingly as possible. In collecting the decisions the following reports have been: consulted: Caine’s Cases, 2 volumes; Caine’s Reports, 3 volumes ; Johnson’s, Cases, 3 volumes ; Johnson’s Reports, 20 volumes ; Johnson’s Chancery Reports, 7 volumes; Hopkins’ Chancery Reports, 1 volume ; Cowen’s Reports, 9 volumes; Paige’s “Reports, 11 volumes; Hall’s Reports, 2 volumes ; Wendell’s Reports, 26 volumes; Edwards’ Chan- cery Reports, 4 volumes; Hoffman’s Chancery Reports, 1 volume; Clarke’s Chancery Reports, 1 volume; Hill’s Reports, 7 volumes ; Sand- ford’s Chancery Reports (cited as Sandf. Ch.), 4 volumes; Barbour’s Chancery Reports (cited as Barb. Ch.), 3 volumes; Denio’s Reports, 5 volumes ; Barbour’s Supreme Court Reports (cited as Barb.), 17 vol- PREFACE. v umes; Sandford’s Superior Court Reports (cited as Sandf.), 5 volumes; Comstock’s Reports, 4 volumes; Selden’s Reports, 4 volumes; and the first volume of Kernan’s Reports—in all, one hundred and forty volumes of reports. This volume embraces the First Chapter of the Second Part of the Revised Statutes, and shall be followed (should it be found serviceable to the profession) by another, which shall contain all of the subsequent provisions of the Revised Statutes treating of Real Estate. The Notes to the second, third and sixth chapters (Of Descents, Of Proof and Recording of Conveyances, and Of Wills) are already in an advanced state of preparation for the press. With these few prefatory remarks I now submit the following pages to the profession, trusting that the faults which no doubt accompany a first attempt will be leniently viewed, and hoping that the labor, saved to the lawyer in the hurry of business by consulting the authorities here collected, will bear some proportion “to the labor which I have ‘bestowed in the compilation of these authorities. Utica, June 8, 1855. T. M. LALOR. INDEX TO CASES CITED OR INTRODUCED. A Abeel v Radcliff, 301. Acker v Witherell, 298. Ackert v Pultz, 243, 279. Adams v Beekman, 258. Adsit v Adsit, 274. Allen v Culver, 298, 299. Allen v DeWitt, 231. Allen v Jaquish, 285. Anderson v Jackson, 57, 59. Anderson v Lemon, 116. Anderson v Prindle, 52. Andrew v The N. Y. Bible, &c., Society, 148. Anstice v Brown, 33. Armstrong v Wheeler, 300. Arnold y Gilbert, 80, 183, 186, 219. Arnold vy Patrick, 239, 243. Astor v Hoyt, 298. Astor v L’Amoureux, 159, 301. Astor v Miller, 298, 300. Asylum v Phoenix Bank, 136. Atkinson v Hutchinson, 90. Attorney General v Stewart, 141. Ayres v Methodist Church, 128, 141, 148. B Bailey v Delaplaine, 285. Bain v Clark, 52. Baker v Chase, 263. Baker v Wheeler, 115. Bancroft v Wardwell, 301. Bank of Ogdensburgh vy Arnold, 20, 260. Banks v Pheland, 77. Banks v Walker, 23. Baptist Association v Hart, 141. Barber v Harris, 117. Barlow v Barlow, 58, 60. Barnum v Hempstead, 168. Beach v Gray, 303. Beardslee v Beardslee, 265. Bear v Snyder, 258. Beecher v Crouse, 20, 21. Beekman v Frost, 244, 257. Beekman v Hudson, 258. Bell v Mayor of N. Y., 259, 260, 269. ; Bellinger v Shafer, 157, 192. Berrien v McLane and al., 194. Bigelow v Finch, 61. Boehm v Engle, 141. Bodine v Edwards, 160, 162. Bogardus v Trinity Church, 117, 141. Bogart v Hertell, 222. Bottsford v Burr, 159. Boyd v McLean, 159. Boynton v Hoyt, 76, 112. Bowers v Smith, 187, 278. Bradley v Amidon, 158, 186. |Bradhurst v Bradhurst, 219. Bradish v Gibbs, 225. Bradstreet v Clark, 158, 307. Braker v Devereaux, 118. Brant v Gelston, 67, 99. Brewster v Power, 153, 162. Brinckerhoff v Lawrence, 240. Brinckerhoff y Wemple, 117. Brewster v Striker, 158. vill Brown v Dean, 286. Brown v Sprague, 41, 43. Brownson and wife v Gifford and al, 175. Bryan v Knickerbocker, 181. Buchan v Sumner, 115, 116. Bulkley v DePeyster, 76. Bull v Willard, 292. Bullock v Stones, 112. Bunn v Winthrop, 240. Bunner vy Storm, 227. Bwiingham v Belding, 307. Burnet v Denniston, 56, 57. Burnet v Scribner, 286. Burrill v Sheil, 67, 83, 194, 195, 196. Butcher v Butcher, 221. Butler v Butler, 90. Butler v Phelps, 117. Butler v Van Wyck, 39. Butler and al. v Butler and al., 76. C Cairnes v Chabert, 49. Calvin’s Case, 22. Cameron v Irwin, 255, 256. Cammeyer v The G. L. Churches,35.| Campbell v Law, 173. Campbell v Johnston and al., 180, 184. Canal Commissioners v the People, 141. Carpenter v Schermerhorn, 67. Carter v Hammett, 298. Cary v Abbott, 147. Case of Christ’s College, Cam- bridge, 141.. Champion v Brown, 288. Champlin v Haight, 191. Chandler v Edson, 25, 26. Childs v Clark, 297, 298, 300. Church v Bull, 276. Church v Church, 265. Church v Gillman, 239. Clapp v Bromagham, 117. Clare’s (Sir EH.) Case, 210. Clark v Gifford, 243. Clark v Cummings, 48, 311. INDEX TO CASES, Clute v Bool, 181. Coates v Cheever, 259, 261. Coggshall v Pelton, 147. Cogswell v Cogswell, 49. Cole v Irwine, 254. Coles v Coles, 115, 259. Collins v Torrey, 259. Colvin v Baker, 62: Combs v Jackson, 19. Conklin v Egerton, 228. Connolly v Smith, 36, 39. Constantine vy VanWinkle, 118. Converse v Kellogg, 76. Cook v The C. T. Co., 51. Cooper v Whitney, 169, 266, 271. Cornell v Lamb, 18. Coster v Lorillard, 70 to 75, 84, 173. Cotter v Layer, 236. Cox v McBurney, 163. Craig v Craig, 111, 184. Christopher v Austin, 304. Crocheron v Jaques, 215, 222. Cropsey v Ogden, 272. Croswell v Crane, 203. Cruger v Cruger, 174, 188, 225, 253. Cruger v Haliday, 193. Cumberland v Codrington, 308. Cumming and al. v Williamson, and al., 189. Cunningham v Freeborn, 169, 250. Cunningham v Knight,263,268,311. Currin v Finn, 39. Cushney v Henry, 100, 158. D Dana v Dana, 25, 26. Darling v Rogers, 84, 85. Dartmouth College vWoodward,136. Davis v Darrow, 39, 267. Davison v De Freest, 65, 67. De Barante v Gott, 79, 88. De Graw v Clason, 182. De Kay v Irving, 140. Denn v Gaskin, 113. Denton v Nanny, 259, 260, 261, 268, 270, 279. De Peyster v Clarkson, 21. Clayton v Blakey, 52. Cleves v Willoughby, 303. | De Peyster v Clendining, 85, 155, 175, 196, 312. INDEX TO CASES. De Peyster v Hasbrouck, 261. De Peyster v Michael, 46, 47. Doe v Knight, 240. Doe v Perryn, 91. Doe v Provoost, 67. Doe d. Rigge v Bell, 52. Doe v Thompson, 48. Dole v Irish, 28. Dominick v Michael, 228. Dominick v Sayre, 218, 219, 220, 222. Dorland v Dorland, 222. Dougrey v Topping, 266. Duke of Cumberland v Graves, 193, 311. Dunham v Osborn, 258, 262. Dupre v Thompson, 85. Dutch Church, &c. v Mott, 127, 141. i Edwards v Varick, 106. Ellice v Winn, 34. Ellsworth v Cuyler, 288. Elsey v Metcalf, 242. Elwood v Klock, 259. Embree v Ellis, 281. Emmons v Cairns, 91, 107. Esmond v Van Benschoten, 244. Evertson v Kirtland, 248. Evertson v Sawyer, 302. Evertson v Tappen, 261. Ex’rs of Burr v Smith, 141, 142, 149. Ex’rs of Moffat v Strong, 57. Exparte Kirby—Ravensworth Hos- pital, 144. Fr Featherstonhaugh v Bradshaw, 302. Fellows v Emperor, 155. Fellows v Lee, 27. Ferris v Gibson, 91. Field v Field’s Ex’rs, 76. Fisher v Wigg, 115. Fletcher v Button, 291. Fonda v Van Horne, 19. Foote v Calvin, 159. Forgey v Sutliff, 39. Forsyth v Clark, 159. ix Forth v Chapman, 90. Fosdick v Cornell, 57, 58. Fosgate v Herk. Man. & Hyd. Oo., 289. Fox v Phelps, 96. Franklin v Osgood, 226. Frazer v Western, 156, 157, 208, 225. , Freeman v Kelly, 159. Frost v Bevins, 116. Frost v Peacock, 260. Fuller v Yates, 275, 276. Fullerton v Jackson, 21. G Gardner v Dering, 48. Gazly v Price, 291. Germond v Jones, 180, 209, 266. Gibson v Lord Montfort, 112. Gilbert v N. A. F. Ins. Co., 242. Gilchrist v Rea, 228. Gilchrist v Stevenson, 195, 196. Gillett v Stanley, 32. Gillis v Brown, 62, 266, 267. Glover v Wilson, 303. Godwin v Kilsha, 236. Going v Emery, 141, 149. Goodell v Jackson, 26, 44. Goodell v Pierce, 244. Goodhue v Berrien, 85, 238. Goodlittle v Pegden, 90. Goodrich v Walker, 239. Gott v Cook, 65, 67, 79, 88, 93, 111, 119, 178, 174. Green v Putnam, 258, 264. Griffin v Barney, 168. Griffin v Spencer, 288. Griffith v Beecher, 291. Grant v Schoonhoven, 78, 188. Grout v Townsend, 48, 50, 58, 66, 252. Grosvenor v Allen, 288. Guthrie v Gardner, 160. H Hagaman ads. Jackson, 61, 70. Hall v Ballentine, 294. Hall vy Southmayd, 301. Hannan v Osborn, 67, 118. Harbeck v Sylvester, 299. x Hardin v Warner, 204. Harrington v Higgins, 290. Hastings v Ellis, 28. Havens v Havens, and al. 276. Hawley v Bradford, 260. Hawley v Clowes, 116. Hawley v James, 65, 76, 79,84, 87, 112, 134, 169, 172, 173, 175, 183, 189, 232, 262, 277, 278. Hawley v Ross, 65, 193. Haxtun v Corse, 86,111, 115, 174. Hazen v Thurber, 281. Hicks v Cochran, 117. Hill v Hill, 91. Hinman v Booth, 243. Hitchcock vy Harrington, 260, 251. Holmes v Holmes, 262, 290. Holmes v Seely, 20. Hone v Fisher, 245. Hone v Van Schaick, 102. Hone’s Ex’rs vy Van Schaick, 76,79, 85, 276. Hosford v Merwin, 161, 165. House v House, 269, 309. Howard v Ellis, 298. Howard v Howard, 254. Hoxie v Hoxie, 67, 155. Hyatt v Wood, 53, 54. 1 Inglis vy The Sailors Snug Harbor, 141, 149. Irving v De Kay, 76, 85,170, 183, 215. Isenhart v Brown, 276. Ives v Ives, 52. J Jackson v Adams, 11, 12. Jackson v Aldrich, 53. Jackson v Anderson, 57, 53. Jackson v Aspell, 264. Jackson v Austin, 310. Jackson v Beach, 11, 34. Jackson v Billinger, 57. Jackson v Blagshan, 57. Jackson v Bradt, 52. Jackson v Brink, 117. Jackson v Brinkerhoff, 253. Jackson v Brown, 31. INDEX TO CASES. 2QUd. Jackson v Brownson, 50, Jackson v Brush, 286. Jackson v Bull, 289. Jackson v Burr, 112. Jackson v Churchill, 275. Jackson v Clarke, 289. Jackson v Combs, 19. Jackson v Cristman, 57. Jackson v Davenport, 234. Jackson v De Lancey, 234, 252, 286. Jackson v Demont, 253. Jackson v Edwards, 207, 208, 209, 229, 267. Jackson v Elmendorf, 57. Jackson v Htz, 12. Jackson v Feller, 159. Jackson v Goodell, 26, 2s. Jackson v Graham, 287. Jackson v Green, 41. Jackson v Gumaer, 256. Jackson v Harper, 286. Jackson’ v Harrison, 50, 51. Jackson v Hill, 131. Jackson v Hotchkiss, 289. Jackson v Hudson, 27, 28. Jackson v Kipp, 50. Jackson v Lunn, 34. Jackson v Luquere, 48. Jackson v Mancius, 50, 252. Jackson v Matsdorff, 159, 254. Jackson v McLeod, 52, 292. Jackson v Merrill, 67. Jackson v Miller, 51, 159, 286. Jackson v Mills, 159. Jackson v Moore, 159. Jackson v Myers, 289. Jackson v O’Domaghy, 118, 279, 281. Jackson v Parker, 287. Jackson v Parkhurst, 292. Jackson v Perkins, 242. Jackson v Phipps, 239. Jackson v Robbins, 209. Jackson v Rogers, 52. Jackson v Rowland, 244. Jackson v Salmon, 52. Jackson v Schauber, 113. Jackson v Sears, 20, 252, 2x8. Jackson v Seelye, 159. INDEX TO CASES. Jackson v Sellick, 47. Jackson v Sharp, 26, 27. Jackson v Silvernail, 50. Jackson v Smith, 289. Jackson v Staats, 57. Jackson v Sterling, 159. Jackson v Thompson, 57. Jackson v Tibbits, 117. Jackson v Todd, 253. Jackson v Van Cortlandt, 53. Jackson v Vanderheyden, 263, 264. Jackson v Van Zandt, 54, 55. Jackson vy Vincent, 50. Jackson v Walker, 289. Jackson v Waltermire, 267, 307. Jackson v Wheeler, 254. Jackson v Whitbeck, 117. Jackson v White, 33. Jackson v Winne, 112. Jackson v Wood, 25, 26. Jackson v Wright, 33, 44. James v James, 187, 278. James v Vanderheyden, 242, 243. Jansen v Cairnes, 77. Jaques v Methodist Ep. Church, 239. Jarvis v Babcock, 157, 174. Jencks v Alexander, 160, 163. Jennings v Jennings, 79, 81, 90. Johnson v Corbett, 280, 310. Johnson v Fleet, 189. Johnson v Wygant, 290. Jones v Clark, 252, 286. Jones v Patterson, 303. Judson v Gibbons, 158. Kane v Gott, 85, 137, 139, 189. Keirsted v Avery, 243. Kellogg v Kellogg, 288. Kelly v Harrison, 33, 39. Keneda v Gardner, 255." Kennedy v Mills, 277. Kennedy v Wood, 35. Kidd v Dennison, 291. King v Donnelly, 195, 196. King v King & Ennis, 308, 309. King v Newman, 143. King v Rundle, 130. Kingman v Sparrow, 256. Kinney v Watts, 246. Kittle v Vail Dyck, 270. xi Knight v Weatherwax, 101, 155. Kniskern vy Lutheran Churches, 126, 148. La Grange v L?Amoureux, 157. L’Amoureux v Van Rensselaer, 182, 188, 190, 223. Lang v Ropke, 79, 81, 83, 90, 140, 172, 183. Lanoy v Duke of Athol, 309. Larrabee v Van Alstyne, 274. Lasher v Lasher, 276. Lawrence v Bayard, 67, 106. Lawrence v Brown, 258. Lawrence v French, 304. Lawrence v Lawrence, 103. Lawrence v Miller, 264. Lawrence v Taylor, 290, 291. Lawton v Sager, 242. Lee v Glover, 27, 32. Leggett v Dubois, 11, 33. Leggett v Perkins, 173. Lion v Burtiss, 57. Little v Martin, 302. Livingston v Potts, 285. Livingston v Proseus, 254, 255. Livingston v Reynolds, 48, 50. Livingston v Tanner, 54, 293. Livingstons v Livingston, 96. Lorillard v Coster, 70 to 75, 84, 107, 173, 189. Lott v Wyckoff, 55, 58. Lounsberry v Purdy, 166. Lynch v Clark, 22. M Macomb v Miller, 67, 91. Malcolm v Rogers, 117. Malin v Malin, 159. Marsellis v Thallimer, 102. Martin v Black, 298. Martin v Lang, 90. Mason v Jones, 82, 174, 175. Mason v Mason’s Ex’rs, 79, 111, 175, 220. Mason v White, 307. Matter of Craig, 197. Matter of Cregier, 258, 259. 102, 109, 173, Matter of De Kay, 191. Matter of Galloway, 298. Xi Matter of Howe, 133, 134. Matter of Jones, 194. Matter of Leefe, 34, 35. Matter of Saunders, 67, 100. Matter of Stevenson, 194. Matter of Stewart, 225. Matter of Van Schoonhoven, 196, 197. Matter of Van Wyck, 118, 195, 228. Matter of Windle, 34. Matter of Wm. and Anthony Sts., , 262. Matthews v Sawell, 285. Maundrell v Maundrell, 210. Maurice v Graham, 93. Meakings v Cromwell, 222, 228. Merritt v Farmers’ Ins., &c. Co., 167. Mick v Mick, 39. McCartee v Teller, 272. McCarthy v Orphan Asylum, 133, 142, 148. McFarland v Watson, 303. McGirr vy Aaron, 140. McKay v Mumford, 118, 295, 302. McKeon v Whitney, 303. McLachlan v McLachlan, 96. McLean v McDonald,158. McSorley v McSorley’s Ex’rs, 81. McSorley v Wilson, 81. McWhorter v Agnew, 100. Miller v Delameter, 49. Minuse v Cox, 232. Moehring v Mitchell, 225. Moffat v Smith, 253, 298, 303. Moggridge v Thackwell, 141, 147. Mollan v Griffith, 309. Mooers v White, 11. Moore v City of N. Y., 284. Moore y Jackson, 118. Moore v Lyons, 67. Morgan v Masterton, 76, 89. Morice v Bishop of Durham, 146. Morris v Slater, 290. Morton v Morton, 110. Mowatt v Carow, 68. Mumford vy Brown, 117, 118, 294. Mumford v McKay, 115, 118. Murray v Wooden, 31, 32. INDEX TO CASES. N Newkirk v Newkirk, 96. Nichols v Williams, 52. Nicoll vy Walworth, 156, 157, 192, Nodine v Greenfield, 67. Norman v Wells, 299. Norton v Stone, 160. 0 Oarser v Hoag, 23. Ogden v Lee, 27. Ogden v Smith, 226. Ommaney v Butcher, 147. Orphan As. v M’Cartee, 127, 141. Osgood v Dewey, 301. P Padgett v Lawrence, 159. Parker v Parmelee, 291. Parks v Jackson, 288. Parks v Parks, 88, 155, 159, 191, 307. Partridge v Havens, 163. Paterson v Ellis, 91. Patterson v Brewster, 115. Peacock v Monk, 210. Peck v Young, 22, 23. Pendleton v Fay, 232. Perrin v Blake, 97. Philips v Covert, 53. Pitcher v Carter, 157, 158. Pomeroy v Drury, 248. Pond v Bergh, 66, 106. Poor v Horton, 254, 258. Porter v Bleiler, 302. : Post v Kearney, 297, 298. Potter v Chapin, 127. Priest v Cummings, 39, 263. Prouty v Prouty, 53. Provost v Calder, 298. Putnam v Ritchie, 12. Putnam v Wise, 115. R Rathbun v Dyckman, 274. Rathbun v Rathbun, 242. Redpath v Rich, 37. Reed v Underhill, 185. INDEX TO CASES. Reeve v Attorney General, 174. Reid v Fitch, 154, 163. Reynolds v Reynolds, 271. Rider v Mason, 182. Robertson v Bullions, 196. Roach v Cosine, 53. Rogers v De Forest, 168. Rogers v Henderson, 117. Rogers v Ludlow, 174, 182, 223. Rogers v Murray, 59. Rogers v Ross, 112. Roosevelt v Thurman, 56, 57. Root v Stuyvesant, 88, 140, 212, 213, 235. Rose v Rose, 242. Roseboom v Mosher, 228. Roseboom v Van Vechten, 253, Rosevelt v Carow, 240. Rowan v Lyttle, 52, 53, 284, 293. Ruggles v Lawson, 243. Runyan v Stewart, 262, 269, 270. Russell v Allen, 160, 162. Russell v Austin, 259, 261. Ss Safford v Safford, 258. Salmon v Stuyvesant, 88,212, 233. Sandford v Jackson, 156, 276. Sanford v McLean, 268. Sarles v Sarles, 48. Saul v Wilson, 143. Sayre v Townsend, 159. Sayre v Wisner, 180. Schenck v Ellingwood, 236. Schoonmaker v Sheely, 100. Schutt v Large, 242. Schuyler v Leggett, 50. * Schiefflin v Carpenter, 284, 285. Scott v Howard, 264, 279. Scott v Thorpe,, 84. Serugham v Wood, 239, 240. Selden v Vermilya, 183, 184, 193, 206, 215. Sharp v Pratt, 228. Sharpstein v Tillou, 229. Shepard v Lessinghain, 90. Sherman v Ballou, 20. Sherman v Garfield, 263. Sherman v Sherman, 91, 93. xiii Shotwell’s Hx’rs v Mott, 126, 148, 152. Siglar v Van Riper, 117. Silleck v Mason, 182. Simers v Saltus, 252, 286. Sinclair v Jackson, 228. Sir E. Clare’s Case, 210. Slade v Holford, 139. Sloane v Cadogan, 233. Slocum v Clarke, 299. Smith v Jackson, 265. Smith v Kearney, 219. Smith v Kniskern, 274. Smith v Niver, 284, 285. Smith v Smith, 290. Smith v Stewart, 302. Souverbye v Arden, 239, 240. Springstein v Schermerhorn, 285. Stage v Beekman, 175. t. Andrew’s Church v Tompkins, 257. Steele v Fisher, 277. Steere v Steere, 159. Stephens v Stephens, 112. Sterricker v Dickinson, 184, 192. Stewart v Doughty, 52. Stilwell y Hubbard, 239, 240. Stow v Tifft, 269. St. Regis Indians v Drum, 26. Strong v Waterman, 27, 28. Strong v Wilkin, 208, 225. Stuart v McMartin, 182. Sutliff v Forgey, 33, 39. Swaine v Perine, 49, 261,263,274. Swartout v Burr, 291. T Tabele v Tabele, 260. Talbot v Chamberlin, 288. Tallman vy Wood, 100. Tanner v Livingston, 67. Tator v Tator, 91. Taylor v Gould, 79. Taylor v Morris, 227, 228. Temple v Hawley, 87. The Com’rs of the U, S. Dep. Fund v Chase, 238. The F. L. & T. Co. v Carroll, 169, 217. XiV The F. L. & T. Co. v The People, 12, 13. The, Lady Superior, &c. v McNama- ra, 239, 241. Thellusson v Woodford, 151. The People v Brown, 11.’ The People v Conklin, 10, 11, 12, 34. The People v Cutting, 10. The People v Denison, 10, 12. The People v Fulton Ins. Co., 12. The People v Gillis, 48. The People v Livingston, 10,11,12. The People v Rickert, 51. The People v Westervelt, Thompson v Carmichael’s 169, 180. Thorn v Coles, 77, 175. Tillotson vy Boyd, 301. Titus v Neilson, 260, 261. Tomb v Sherwood, 253. Tompkins v Fonda, 265. Tone v Brace, 246, 247. Tooley v Dibble, 244. Torrey v Shaw, 67. Totten v Stuyvesant, 265. Town v Newdham, 117. Tucker v St. Clement’s Church, 128, 129. Tucker v Tucker, 76, 85. Trustees S’th Bapt. Church v Yates, 157. gl. Ex’rs 78, U Uniacke v Giles, 240. Vv Vail v Vail, 65, 77, 85, 109, 158, 188, 189, Valentine v Northrop, 117. Valk v Crandall and others, 262. Vanderheyden v Crandall, 56, 67. Vanderwerker v Vanderwerker, 307. Vanderzlee v Aclone, 221. Van Dyck v Van Beuren, 117. Van Dysne v Thayre, 259, 261. Van Epps v Van Epps, 187. Van Gelder v Post, 259. Van Horne v Fonda, 117. Van Rensselaer v Bradlay, 299. Van Rensselaer v Jones, 297. INDEX TO CASES. Van Rensselaer’s Heirs v Gallup, 299, 300. Van Rensselaer’s Heirs vy Penniman, 285. Van Vechten v Pearson, 67. Van Vechten v Van Veghten, 79, 85, 180, 214. Verplank v Sterry, 239 Verplank v Wright, 298. Vidal v Girard’s Ex’rs, 126, 127, 141, 142, 149. Voelckner v Hudson, 280. ~ Voorhies v Presb. Ch. of Amst., 129. Vredenbergh v Morris, 61. Vrooman v Shepard, 255. Ww Wadsworth v Buff. Hyd. Ass., 28. Wait v Day, 153, 162, 163. Wait v Wait, 271, 272. Walker v Schuyler,.262. Walton v Cronly, 298. Ward y Kilts, 280. Waring v Waring, 209, Warner v Van Alstyne, 262. Watson v Bonner, 188. Watson v Le Row, 163. Webb v Bindon, 254. Welch v Allen, 156, 232. Welch v Silliman, 96, 156, 232. Wendell v Crandall, 56, 67. Wendell v The People, 10. West v West, 23. Westlake v De Graw, 203. Wheaton v Andress, 307. White v-Carpenter, 159. Whiteside v Jackson, 52, 290. Whitmarsh v Cutting, 52. Wilcox v Randall, 268. Wilde v Cantillon, 54. Wilkes v Lion, 55, 57. Wilkinson v Parish, 265. Willard y Tillman, 299. Williams v Cox, 262, 263. Williams vy Dakin, 96. Williams v Healy, 290. Williams v Pritchard, 135. Williams v Shearman, 303. Williams y Williams, $9, 130. INDEX TO CASES. xV Williamson v Field, 66, 68, 280. |Wood v Keyes, 101, 266. Wilson v Hodges, 30. Wood v Wilcox, 303. Wimple v Fonda, 67. (Wood v Wood, 159, 189, 275. Windsor v Inhab. of Farnham, 143./Wright v Douglas, 241. Wiscott’s Case, 115. ‘Wright v Moore, 290. Wiswall v Hall, 263. ‘Wright and al. v. Trust. of M. E. Wolfe v Van Nostrand, 67. | Church, 11. Wood v Burnham, 100. | Wood v Cove, 67. Y Wood v Hyatt, 53, 54. \Yates v Yates, 76, 129, 148. ERRATA. Page 70, line 26, for “‘jurors”’ read “ errors.” Page 77, line 33, after “‘ bequeathed’? insert “to his wife.”’ Page 116, lines 12 and 23, transpose quotations ‘‘ Buchan v. Sum- ner” and ‘“ Tb.” Page 125, line 3, for “‘ are’’ read “‘ were.” Page 180, line 19, for “‘ leave”? read “‘ lease.” Page 221, line 6, for ‘‘are still” read “ were.” REVISED STATUTES OF THE STATE OF NEW YORK. Part Second. AN ACT Concerning the acquisition, the enjoyment and the trans- mission of property, real and personal; the domestic relations, and other mattérs connected with private rights. WHEREAS it is expedient that the several statutes of this State, relating to the acquisition, the enjoyment and the transmission of property, real and personal; the domestic relations, and certain matters connected with private rights; should be consolidated and arranged in appropriate chapters, titles and articles; that the language thereof should be simplified; and that omissions and other defects should: be supplied and amended: Therefore, The People of the state of New York, represented in Senate and Assembly, do declare and enact as follows: CHAPTER I. Of Real Property, and of the nature, qualities and alienation of Estates therein. TirLeE 1. Of the tenure of real property, and the persons capable of holding and conveying estates therein. . Of the nature and qualities of estates in real roperty; and the alien- ation thereof. Of estates in dower. . Of estates for years, and at will, and the rights and duties of landlords and tenants. ; Miscellaneous provisions of a general nature. TITLE 1. Of the tenure of Real Property, and the Persons capable of holding and conveying Estates therein. Arr. 1, Of the tenure of real property. 2. Of the persons capable of holding and conveying lands. Oo pe a 10 REAL PROPERTY LAWS. ARTICLE FIRST. Of the tenure of Real Property. . People of this state deemed original owners of lands therein. . Escheated land to be held subject to trusts, &c.; how executed. . Lands declared allodial ; feudal tenures abolished. Abolition of tenures not to affect certain rights, or powers of courts. . Guardianship of infants owning lands, to whom it belongs. . Provisions respecting guardians in socage. to apply to them. . Superseded hy appointment of testamentary or other guardian. Tha Se OO Ne § 1. People original owners of land in this State. Hs- cheat.—The people of this state, in their right of sover- eignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and all lands, the title to which shall fail, from a defect of heirs, shall revert or escheat to the people. This Section is new in terms. but was implied in I R. L., 380, § 2. Rev. N. a A similar enactment is contained in 1 Jones & Varick,44. See also Constitution of 1846, Art. 1, § 11. This.section must be considered declaratory of the existing, rather than enacting any new, law. In the words of Chancellor. Walworth, “The people of this state, upon the declaration of independence, succeeded to all the rights of the crown, and they are the owners of all the lands within the limits of this state, ex-. cept such as have been granted to others, or where their title has been lost, through adverse possession.” Wendell v. The People, 8 Wend. 188. “There are with us two cases in which lands escheat. First, where the tenant in fee dies seized, leaving no heir capable of inheriting the property, and making no valid disposition of it by will; and second, where lands are purchased by an alien, who cannot hold as against the state. In both of these cases, the pro- perty immediately reverts to and vests in the people, as the original and ultimate proprietors of all the lands within the state.” Per Bronson J., in The People v. Conklin, 2 Hill. 74. Accordingly, in ejectment by the people, proof that the premis- es claimed were vacant and unoccupied within the period neces- sary to be shown to establish title by adverse possession against them, is prima facie sufficient to authorize a recovery ; Wendell v. The People, supra; The People v. Denison, 117 Wend. 312; The People v. Livingston, 8 Barb. 253. But on a traverse of an inquest of office found in behalf of the people in a case of escheat, the traverser is considered as a defend- ant, and if he shows that the people have no title, though he prove nothing but a bare possession in himself, he will be entitled to judgment ; The People v. Cutting, 3 Johne. 1. TENURE OF REAL PROPERTY. 11 With respect to lands that, prior to Oct.. 1775, had been legal- ly granted to individuals by the crown, or to which the title had been legally acquired by individuals in any other way, neither the revolution. nor the change of form of government, nor the declar- ation of the sovereignty of the people, worked any change or for- feiture in the ownership of such property: The People v. Livings- ton, supra. Where an alien purchases real estate in (rand of the law of es- cheat, and takes a conveyance in the name of a third person, either upon an express or declared, or a secret trast to permit the alien to receive the rents and prolits thercof, the interest in such trust belongs to the state, and may be enforced in its favor and for its benefit ; Leggett v. Dubois, 5 Paige, 114. And a remainder in fee dependent on a life estate will escheat. to the people, during the existence of the life estate : The People v. Conklin. 2 Hill, 67. Tf there le an outstanding life estate, the people will not be entitled to the possession until that estate has terminated ; but this can not affect their title lo the fee. Per Bronson, J., ib., T4. So, when the heir at law was incapable. by reason of alienisin, of taking rents which had accrued prior to a certain date, they escheated and were directed to be paid in such manner’hs the at- torney general should direct. Wright & others v. Trustees of Meth. Epis. Church, Hofim. 203 ; sce also Movers v. White. 6 Johns. Ch. 360. But until office found, the people had no right to take possession, and ‘a grant of the lands by the state before office found, whether by legislative act or otherwise, conveys no title : Jackson v. .2dams. 7 Wend. 367. Where an alien, after having acquired lands by purchase, is at'ter- wards naturalized before office found, his title becomes thereby confirmed, so that he may hold even asagaiust the state, otherwise where his claim is by descent. The People v. Conklin. supra, and Jack- son Vv. Beach, 1 Johns. Cas. 399. The people can not enter upon an alien without this judicial proceeding. His entry and possession and holding are lawful, and can be terminated only by regular proceed- ings. But when an alien who holds land dies,at common law it in- stantly, and of necessity, without any inquest of office, escheats and vests in the state, because the frechold can not. be kept in abeyance, and he is incompetent to transmit by hereditary descent. The law, quae nihil frustra, never casts the freehold wpon an alien heir, who can not keep it. Per Sutherland, J., in Jackson v. Adams, 7 Wend. 368, and see cases there cited. But these cases must now be taken subject to the 36th section of the next article, which sec. In The People v. Brown, 1 Cai. 416, it was held that an inform- ation to forfeit lands granted in fec for amintrusion will not lie before office found. The people can acquire possession of lands for breach of condition, by matter of record only ; Jd. 12 REAL PROPERTY LAWS. The finding of office, as it was termed, was the mode of ascer- taining the title of the crown to forfeited or escheated property ; put the title of the people of this state can now be established by the more simple process of bringing an action of ejectment ; see 1 R. &. 282. Itis presumed, that the rules of law relating to the find- ing of office, and referred to in Jackson v. vidas, and The People y. Conklin, apply to the recovery of a judgment in ejectment under the revised statutes. As to the amount of evidence requisite to establish “a defect of heirs.” sce Jackson v. Etz, 5 Cow. 314, and The People v. The Ful- ton Insurance Company, 25 Wend. 205. To bur the title of the people by adverse possession, a 40 years’ possession is necessary * Code of Procedure, § 'T5: except where a patent has been determined to be void, in which case a 20 years’ possession after such determination bars the right of the people ; 1t.,§ 77. Such possession must be an actual, continued possession. The People v. Livingston, 8 Barb. 253. § 2. Escheated lands subject to trusts, dc. How trusts, dbe., ececited—All escheated lands, when held by the state, or ifs grantees, shall be subject to the same trusts, incumbrances, charges, rents, and services, to which they would have been subject, had they descended; and the supreme court shall have power to direct the at- torney general to convey such lands to the parties equit- ably entitled thereto, according to their respective rights, or to such new trustee as may be appointed by such court. By the common law, lands held in trust, if they escheated to the king, were held by him free from the trust; 3 Cruise, 464. The same doctrine would probably be applied to the people of. this state, but for the above section ; see Rev. WV. By the laws of 1831, Ch. 116, it was enacted, that where lands escheated, and the person last seized was a citizen, or capable of taking and holding real estate. the commissioners of the land- office should fulfil any contract made by the person so seized, or by any person from whom his title is derived, in respect to the sale of such lands, so far as to convey the title of the state, in pursuance of such contract, but without covenants of warranty, and should allow payments made on such contracts. See 1 R.S. 283, §10. In the construction of a somewhat similar statute it has been held,.that a person who purchases land at a Sheriff’s sale, and re- ceives the Sheriff's certificate, and dies while the time of redemp- tion is running, dies “seized” of the premises. Enghlisbe v. Hel- muth, 3 Comst. 294. : In The Farmers’ Loan and Trust Company v. The People of the TENURE OF REAL PROPERTY. 13 State of New York, 1 Sandt. Ch. 139, an alien purchased land in fee, and at the sane time mortgaged it to the vendors for the pur- chase money ; the land subsequently escheated to the people ; Held, that the title of the people was subject to the lien of the mortgage. The \. V. Chancellor, however, decided this case on the principle, that where the purchaser of land executes a mortgage for the purchase money at the time of receiving his con- veyance, he has only an instantancous seizing of the cstate, quoad the mortgage, and did not think it necessary to examine the ques- tion with reference to the above section. In The People v. Conklin, 2 Will, 67, lauds were devised to aliens with a power to executors to sell, the devisces being inca- pable of holding, on account of their alienism, the lands escheated ; and it was held, that a recovery by the people in ejectment defeated the whole estate and interest of the alien devisees, and that the power, whigh was only given for the purpose of facilitating parti- tion among them, tell also. $5. AM lands allodial. Feudal tenures abolished.— All lands within this state are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates; and all feudal tenures, of every description, with all their incidents, are abolished. § 4. Certain rights, de. vot to be affected —The aboli- tion of tenures shall not take away or discharge any rents or services certain, which at any time heretofore have ‘been, or hereafter may be, created or reserved ; nor shall it be construed to effect or change the powers or jurisdic- tion of any court of justice of this state. The above two sections have been adopted as a substitute for the 2nd, 3rd, 4th, 5th, and 6th sections of the act “concerning ten- ures,” passed February 20. 1787, which are in the following words: IL. dnd be it further enacted by the authority aforesaid, That all wardships, liveries, primer seisins, and ousterlemains, values and for- fettures of marriage, by reason of any tenure by knight’s service, and all mean rates, and all other gifts, grants and charges inci- -dent, or arising for, or by reason of wardships, liveries, primer seis- in, or ousterlemains, shall be. and are hereby declared to be taken away and discharged, from the thirtieth day of August, in the year of our Lord one thousand six hundred and sixty four: And that all fines for alienations, seizures and pardons for afenations, ten- ure hy homage, and all charges incident or arising for or hy reason 14 REAL PROPERTY LAWS. of wardship, livery, primer seisin, ousterlemain, or tenure by knight’s service, escuage, and also relief, and aid pur file marrier, and pur fair fitz chivalier, and all other charges incident thereto, shall be, and hereby are likewise declured to be taken away und dis- charged, from the xaid thirtieth day of August, in the year of our Lord one thousand six hundred and sixty four; and that all ten- ures by knight’s service, and by knight's service m_capite, and the fruits and consequences thereof happened, and which shall or may hereafter happen or arise 4hereupon ov thereby, shall be, and hereby are declared to be taken away and discharged, and forever abolished; any law, statute, custom or usage to the contrary thercof in any wise notwithstanding. IIL. dnd be it further enacted by the authority aforesaid, That all tenures of any honors, manors, lands, tenements, or hereditaments, or of any estate of inheritance at the common law, held cither of the king or of any other person of persons, bodies politic or cor- porate, at any time before the fourth day of July, in the year of our Lord one thousand seven hundred and seventy six, are hereby declared to be turned into free and common socage, to all intents and purposes, and shall be construed, adjudged and deemed to be free and common socage from the time of the creation thereof, and forever thereafter, and that the same honors, lands, manors, tene- ments and hereditaments shall forever hereafter stand and be dis- charged of all tenures by homage, escuage, voyages royal, and charges for the same, wardships incident to tenure by kenight’s serv- ice, and values and forfeitures of marriage, and all other charges incident to tenure by knight's service, and of and from relief, aid pur file marrier, and aid pur fair fitz chivalier ; any’ law, statute, usage or custom to the contrary in any wise notwithstanding. IV. And be it further enacted by the authority aforesaid, That all conveyances and devises of any manors, lands, tenements or hereditaments, at any time, heretofore made, shall be expounded to be of such effect, as if the same manors, lands, tenements and hereditaments had been then held, and continued to be holden in Sree and common socage, only; any law, statute, custom or usage to the contrary hereof in any wise notwithstanding. ; V. Provided always, and be it further enacted by the authority aforesaid, That this act, or any thing herein contained, shall not take away, nor be construed to take away or discharge, any rents certain, or other services incident or belonging to tenure in common socage, duc or to grow due to the people of this state, or any mean lord, or other private person, or the fealty or distresses incident thereunto. VI. And be it further enacted by the authority aforesaid, That the tenure upon all gifts, grants and conveyances heretofore made, or hereafter to be made, of any manors, lands, hereditaments, or tene- ments of any estate of inheritance, by any letters patent under the great seal of this state, or in any other manner, by the people of TENURE OF REAL PROPERTY. 15 this state, or by the commissioners of forfeitures, shall be and re- main allodial and not feudal, and shall forever hereafter be taken and adjudged to be and continue in free and pure allodium only ; and shall be forever discharged of all eardship, value and forfeiture of marriage, livery, primer seisin, ousterlemuins, relief, aid pur file “marrier, aid pur fair fitz chivalier, rents, tenders, fealty y, and all other services whatsoever; any law. statute, reservation, custom or usage to the contr ary hereof in any wise notwi thstanding.” These sections, except the last, which was a new provision, were taken from the English act, «for taking away the courts of wards and liveries, and tenures in capite. and by knight’s service. &c.” (12 Charles Il, chap. 24.) The day named in our act (August 30, 1664,) is not the date of the original act, which was passed at a parliament that began on the 25th of April, 1660, and which declared that the military tenures should be deemed to be abolished from the 24th of February, 1645. The day named in our act was the same on which the ‘fort and town of New Amsterdam were surrendered by the Dutch Governor Stuyvesant to Col. Nicolls and the English forces, pur- suant to the capitulation of the 27th of August, 1664. The legislature of 1787 were engaged in the delicate and diffi- cult task of selecting such English statutes as were proper to be re-enacted in this state, preparatory to the general repeal of the remainder. It is probable that the provisions above quoted, so far as they relate to the ancient military tenures, were re-enacted merely from abundant caution; for it is difficult to perceive any necessity for the formal abolition of tenures and incidents of ten- ures, which never existed in this colony. A stranger to our history would be inclined to suppose, from a perusal of the act of 1787, that the military tenures existed in this colony, prior to the 30th of August, 1664; but it is quite certain that such was not the fact. While the colony was under the Dutch Government, these tenures, and indeed all feudal tenures, were unknown. In the charter granted by the statcs general, in 1621, to the West India Company, the latter were empowered “to enter into contracts and alliances with the princes and natives of the land,” and were required “to advance the settlement and encourage the population of the territories they should acquire.” (1 Hazard’s Collections, 121.) In 1629, the Company established a serics of privileges and exemptions, in favor of persons who should become settlers in the colony. They provided that any person who should plant a colony of fifty souls, should be deemed a patroon ; should be en- titled to select lands to a limited extent; and should have an ab- solute property therein, “to be holden of the Company as an ‘eternal inheritance, without its ever dev olving again to the Com- pany.” They also granted to the patroons the liberty of disposing of their inheritances by testament. 16 REAL PROPERTY LAWS. Under these gencral provisions the Dutch inhabitants appear to have held their lands entirely free from any feudal incident. By the second article of the capitulation of 1664, it was stipula- ted, that the people should still continue free denizens, and should enjoy “their lands, houses and goods, wheresoever they are in this country, and dispose of them as they please.” Section 11 is as fol- lows: “The Dutch here shall enjoy their own customs concerning their inheritances.” The treaty of Breda, by which the British title to the colony was confirmed, contains no special provision bearing upon this subject. The first grant from Charles II. to the Duke of York, bears date the 12th of March, 1664. After describing the premises in- tended to be granted, the letters patent run as follows: “To- gether with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishing, hawking, hunting and fowling, and all other royalties, profits, commodities and hereditaments, to the said several islands, lands and premises, belonging and appertaining, with their and every of their appurte- nances, and all our estate, right, title, interest, benefit and advantage, claim and demand, of, in, or to, the said lands or premises, or any part or parcel thereof: to have and to hold all and singular the said lands and premises, with their and every of their appurtenances here- by given and granted, or hereinbefore mentioned, to be given and granted, unto our said dearest brother James, Duke of York, his heirs and assigns forever, to be holden of us, our heirs and successors, as of ‘our manor of Kast Greenwich, in our county of Kent, in free and com- mon socage, and not in capite by knight’s service, yielding and render- ing, and the said James, Duke of York, for himself, his heirs and as- signs, doth warrant and promise to yield and render unto us, our heirs and successors, of and for the same, yearly and every year, forty beaver skins, when they shall be demanded, or within ninety days after such demand made.” The confirmatory letters patent, granted to the Duke of York in 1674, have the same clause in the same words. Pursuant to these grants, the tenure of lands in the colony of New York, was always considered as of common socage, and no trace can be found of any military tenure. In the act “declaring what are the rights and privileges of their Majesties’ subjects, re- siding within their province of New York,” passed in 1691, (which may be found in Bradford’s edition of the colonial laws, p. 1,) it was expressly declared, that “all the lands within the province shall be esteemed lands of frechold and inheritance in free and common socage, according to the tenor of Hast Greenwich, in their Majesties’ realm of England.” This act was repealed by the crown in 1697, in consequence of objections of a political nature, to some of the matters contained in it; but the accuracy of the provision above cited does not ap- TENURE OF REAL PROPERTY. 17 pear to have been controverted. This shows what was then un- derstood to have been the law of the colony on this point. The grants made by the-colonial government, and the acts of the as- sembly passed anterior to the revolution, proceed on the same principle. It is also expressly stated by the historian Smith, that “all lands are held of the crown by socage tenure, as those of Hast ‘Greenwich, at home, in the county of Kent.” (Smith’s History, Albany od. of 1814, p. 372.) The foregoing observations and references render it quite cer- tain, that the military tenures and their incidents were never in existence in this colony: and that their abolition in 1787 was quite unnecessary. In regard to the more burthensome incidents of socage ténure, which are formally abolished by the act of 1787, the case stands on somewhat different ground. Prior to the act of Charles IT, socage tenures were subject to the following incidents: 1. Homage and Fealty. 2. Rent and services certain. 3. id for knighting the son, and marrying the eldest daughter. 4. Relief. 5. Primer Seisin. 6. Wardship till 14 to the nearest relative to whom the inheritance of the infant can not descend. 7. Marriages. 8. Fines for alienation. And 9. Hscheat. By the act of 16 Charles IJ, socage tenures were freed from aids, primer seisins, marriages and fines for alienation. Reliefs were retained by the English Acts, but are enumerated in our act of L787, (see ss. 2 & 3,) and are thus declared, with the other env- merated incidents, to have been taken away and discharged, from the 30th of August, 1660. If this part of the act is correct in point of fact, it would seem that the socage tenure, as known in this colony, was not only modified agreeably to the act of 16 Charles I, but that it was even more liberal in its exemption from reliefs. With the single exception of reliefs, there can be no doubt that, under the grant to the Duke of York, the socage tenure in this colony must have stood on the same ground as in England after the act of 16 Charles IL; for the first grant to the Duke of York was four years after the passage of that act, and the socage tenure of the “manor of Hast Greenwich” had already received all the modifications of that act. The sections above. quoted from the act of 1787 have, therefore, been omitted from the text of the revised statutes, both as unne- cessary in their original form, and as calculated to produce erro- neous impressions in regard to important historical facts. It was however deemed useful to declare the tenure by which lands should hereafter be held in this state, both for the purposes of general information, and to remove a singular diversity, which had pre- viously existed in that part of our law. By the sixth section of the act of 1787, the tenure of all lands granted by the people of this State, is to be allodial, and not feudal. By previous sections. the 18. REAL PROPERTY LAWS. feudal tenure of common socage had been declared to be the ten- » ure of all other lands. It is well known that, at the time of the - revision, the greater part of our lands was held allodially, under titles derived from the people. The nature of these different modes of ti- tle is widely different ; and if the distinction had been retained, it might have given rise to inconvenient and perplexing consequences. In the case of Cornell vy. Lamb, 2 Cowen, 652, it was decided, that the common law right of distress incident to lands held in common socage, was saved by the fifth section of the act of 1787 ; and that in all cases where the landlord is entitled to the revers- ion, and to a rent, he is authorized to distrain for sueh rent with- out any authority for that purpose in the lease or contract. Justice Woodworth suggests, that, independently of the 5th section, the right to distrain (this was before the abolition of the right of distress,) would remain upon every demise for rent certain, where the reversionary interest was in the landlord; and that this right would not be impaired by the abolition of fealty, and all- other services upon lands granted by the State. Chief Justice Savage excepts from this remark, lands held allodially by grant from the state; and it is apprehended, with great reason. It was also ex- tremely doubtful whether those lands were subject to guardian- ship in socage, or to escheat. Indeed there would have been no ground ‘for supposing them liable to either of these incidents of tenure, were if not for the general terms used in some other statutes. It having been deemed important that all lands in this State should be held upon an uniform tenure; and still more so, that all Jands should be subject to the rent and services which have here- tofore obtained among our citizens, and the rights annexed there- to by the common law ; the legislature has adopted the suggestion of the Revisers; in § 3, has made all lands allodial; and, in § 4, has expressly subjected them to those incidents of the socage tenure. See Rev. WV. The difference of tenure established by the act of 1787, between lands granted before and those granted since the revolution, is also to be found in 1 R. L. 70-1, ss. 3 and 6. A uniformity of tenure was first established at the revision of our statutes in 1830. Previously to that, tenants in common could hold their. several -shares in the property by different tenures. And where one-third of the property was held by a tenant in common in allodium, and the other two-thirds were held by others by a socage tenure, a subsequent purchaser, who united the titles of all the tenants in common in himself, was considered to hold the different undivided portions of the property by separate and distinct tenures ; Putnam v. Ritchie, 6 Paige, 390. : Provisions, similar to the above two sections, are also to be found in the Constitution of 1846, Art. I, ss. 12 and 13. TENURE OF REAL PROPERTY. 19 °§ 5. Who to be quardiuns of infants owning lands.— Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage, shall belong. lL. To the father of the infant: 2. If there be no father, to the mother : do. If there be no father or mother, to the nearest and eldest relative of full age, not being under any legal inca- pacity ; and as between relatives of the same degree of consanguinity, males shall be preferred. Guardianship in socage was of necessity abolished by the abol- ition of tenures, so that it seemed indispensable to declare to whom the guardianship, when no testamentary or other guardian was appointed, should belong. It was not thought advisible to adopt the rule of the common law, that the guardianship shall ‘belong to the next of kin, to whom the inheritance could not by possibility descend, not only as the expediency of this rule, in. the present state of society, is extremely doubtful, but under the provisions of the revised statute of descents, it would rarely happen that such a relative could be found, or if found, the very remoteness of the propinquity would be a sufficient reason for ex- cluding him from the guardianship. Rev. There are two kinds of guardianship ; one by the common law, and the other by statute; and there were three kinds of guardians at common law, viz.: guardian by nature, guardian by nurture, and guardian in socage ; 2 Kent’s Comt., 219, e¢ seg. Guardians by nature and by nurture had control only of the minor’s person ; guardian by socage had custody of the Jands as well as of the person ; Id. Guardianship in socage exists only where the lands are held in free and common socage. Consequently, but for the above sec- tion, no guardianship in socage could exist in this state, as to lands granted by the people since the Declaration of Indepen- dence, the tenure of such lands being allodial, and not feudal. See ant. p. 17, and Combs v. Jackson, 2 Wend. 153. But for the above enactment, a father could not be guard- ian in socage to his child, as none, but one to whom the in- _heritance could not possibly descend, was allowed to be guardian in socage, and by the laws of this state real estate can be inher- ited by a father from his son ; Jackson v. Combs, T Cow. 36, and 2 Wend. 153; Fonda v. Van Horne, 15 Wend. 631. Guardianship in socage determines when the infant arrives at the age of 14, but if he do-not choose another guardian, the former guardianship will continue; Byrne v. Van Hoesen, 5 Johns. 66 ; and see Combs v. Jackson, supra. 20 REAL PROPERTY LAWS. A guardian in socage can maintain an action of trespass for in- jury done to the minor’s lands, and of cjectment ; sce Byrne v- Van Hoesen, sup., and Holmes v. Seely, 17 Wend. 79. A guardian can do no act to the injury of his ward ; Jackson v. Sears, 10 Johns. 435; Putnam v. Ritchie, 6 Paige, 390. Conse- quently an attornment by the husband of a guardian in socage has been held void as against her children. Jackson v. Sears. Where the mother of infant children entered on their lands after the death of their father. and married again. she was presumed to be in lawful possession ax guardian in socage, and the stepfather jure ucoris ; see Beecher v. Crouse, 19 Wend. 306, and cases there cited. The infant may, in such a case, elect to consider the par- ties entering as wrongdoers, and bring trespass against them, or charge them as guardians ; Sherman y. Ballou, 8 Cow. 304. See a case: where the mother was held entitled under this statute to re- ecive the rents and profits of infants, Bank of Ogdensburgh v. .trnold, 5 Paige, 38. § 6. Subject to certain laws.—To every such guardian, all statutory provisions that are or shall be in force, relat- ive to guardians in socage, shall be deemed to apply. 'The existence of a guardian in socage is recognized in sec. 20, Tit. 3, Ch. 8, Part 2, and it was considered convenient to retain the name as a distinctive appellation. Rev. NV. The third title of chapter 8, part 2, referred to in the Revisers’ Note, (2 R. 8. 150-2,) is entitled generally, “of guardians and wards,” but is principally taken up with testamentary guardians, and guardians appointed by the surrogate. The only sections of the title, in which guardians in socage are mentioned distinctly and by name, are ss. 2 and 20. Possibly section 12, which gives guardians the power of citing their ward or successor to attend the settlement of their accounts, may, from the generality of its terms, be held to apply to guardians in socage, and we rather in- cline to the opinion that it would. Section 2 gives a testamentary guardian preference over all guardians, including guardians in socage. Section 20 enacts, that every guardian in socage, and every general guardian, testamentary or appointed, shall safely keep the things that he may have in his custody belonging to his ward, and the inheritances of his ward ; and shall not make or suffer any waste, sale or destruction of such things, or of such inheritance, but shall keep up and sustain-the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other money belonging to his ward, as shall be in his hands ; and shall deliver the same to his ward when he comes to his full age, im. as good order and condition, at least, as such guardian receiv- ed the same, inevitable decay and injury only excepted : and he PERSONS WHO MAY HOLD LANDS. 21 shall answer to his ward for the issues aud profits of real estate, received by him, by a lawful account. ‘The two following sections (one of which inflicts a penalty of treble damages on guardians for waste, sale or destruction of the ward’s inheritance, and the other of which allows guardians the same compensation as is provided by law for executors,) may, from their general terms, and from the fact of their coming after section 20, be, perhaps, also considered statutory provisions relative to guardians in socage. It is the duty of guardians to keep the money belonging to their wards properly invested, and if they neglect to make investments they are chargeable with the interest of the memployed funds, commencing six months after the reccipt of the money: De Pey- ster v. Clarkson, 2 Wend. 77. See, further, observations on last section. 87. When superseded —The right and authority of every such guardian shall be superseded, in all cases where a testamentary or other guardian shall have been appointed under the provisions of the third title of the eighth chapter of this act. On the appointment of a general guardian the rights and powers of a guardian in socage cease, but until he appears and asserts his right the prior guardianship necessarily continues ; per Nelson, J., in Beecher v. Crouse, 19 Wend. 306, citing Byrne vy. Van Hoesen, 5 Johns. 66. A grandfather has no right to appoint a guardian; Fudlerton y. Jackson, 5 Johns. Ch. 278. ; ARTICLE SECOND. Of the Persons capable of holding and conveying lands. Sec. 8. Citizens of United States capable of holding, &c. lands in this State. 9. Titles a] peels at certain time, of lands, not to be affected by alien- ism, &e. : 10. Who capable of aliening lands. 11. Purchases from Indians since certain time, void, &c. 12. Indians caunot dispose of or contract for, &c. land, except, &e. 13. Native Indians may bold and convey lands; certain may contract, &c. 14, The Oneida Indians may hold their lands in severalty. 15. Conveyances, by Oneida Indians, how acknowledged. 16. Attorney for Oneida Indians abolished. 17, Oneida Indians may convey their lands. 18. Indians holding in common, may partition their lands, and hold in sev- eralty in fee simple. 19. Partition, how made. 20. Conveyances how made and acknowledged. 21, Lands partitioned not to be alienable for 20 years. 22. Weirs of certain Indian patentees, may convey in certain manner. 23. Occupants of lands so conveyed to be paid for improvements. 24, Resident aliens may make certain deposition. 25. Right thereafter to hold lands and make certain dispositions of them. £6. Not to hold lands acquired previous to making such deposition. 22 REAL PROPERTY LAWS. 27. Ifalien die within six years, his heirs may inherit lands. 28, Aliens may take mortgages on sales of certain lands, &c. 29. Liabilities and incapacities of aliens holding lands. ; 30. Naturalized persons may hold lands purchased by, or devised or descend- ed to them. 31. Vested rights not to be affected by the last section. 32, “Real Estate” defined. . 33. Resident aliens, who have acquired Jands. may, on making the deposi- tion, &c., hold them. 24. Their wives shall be entitled to dower, whether alicn or citizen. 35. Alien wives of citizens entitled to dower. 36. Heirs of deceased alien residents may take and hold real estate. if citiz- ens; if aliens, on filing deposition, &c. 37. Devisecs of resident aliens may take, &e. 38. Resident aliens may grant or devise lands, &c. 39. Alien resident women may take by devise and execute powers, Le. 40. Alien resident women may take beneficial intercst in lands under a marriage settlement, will or devise. 41, Certain former grants, devises, &e., confirmed. 42. Aliens holding lands subject to duties, kc. 43. Provisions of § 28, applicable to §§ 33 to 34, inclusive. 44. Rights of bona fide purchasers, &c., preserved. § 8. Who capable to hold lands—Kvery citizen of the United States is capable of holding lands within this state, and of taking the same by descent, devise or pur- chase. ; Citizens are either natives or naturalized aliens. Natives are all persons born within the jurisdiction and alle- giance of the United States; 2 Kent’s Com. 37. And _ this, whether born of alien parents or not; Lynch v. Clark, 1 Sandf. Ch. 583. In that case, J. L. was born in the city of New York in 1819, of alien parents during their temporary sojourn in that city, and returned with them the same year to their native coun- try ; she was adjudged to be a citizen of the United States. “Upon principle, therefore, 1 can entertain no doubt, but that by the law of the United States, every person born within the domin- ions and allegiance of the United States, whatever were the situa- tion of his parents, is a natural born citizen ;” Ib., per Sandford, A.V. C., p. 663. es The children of publie ministers, born while their parents are abroad, are citizens; for public ministers owe not cven a local al- legiance to any foreign power ; Calvin’s case, 7 Co. 18, a. So, also (according to what seems to us to be the sounder opin- jion,) were the children, born abroad, of private citizens; though this point was not at one time as free from doubt as its import- ance demanded ; 2 Kent’s Com. 58. In Peck v. Young, 26 Wend. 628, (on appeal from 21 Wend. 389,) Chancellor Walworth ex- pressed an opinion that the child, born in a foreign country, of a citizen, was an alien. But in Lynch v. Clarke, 1 Sandf. Ch. 659, the Assistant Vice-Chancellor Sandford is of a contrary opinion, and the whole train of reasoning adopted by him in his decision PERSONS WHO MAY HOLD LANDS. 23 in that case, goes to establish that the same rule prevailed here as in England on this subject, and that the children, born abroad, of private citizens. were themselves citizens. To remove all doubts it was declared by an act, approved February 10, 1855, that “The persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United oo shall be deemed and considered, and are hereby declared, to be citizens of the United States ; provided, however, that the rights of citizen- ship shall not descend to persons whose fathers never resided in the United States. Sec. 2, And be it further enacted, That any woman who might lawfully be naturalized under existing laws, married, or who shall be married, to-a citizen of the United States, shall be deemed and taken to be a citizen.’ Naturalized citizens, upon their natyralization, succeed to all the rights of native citizens under the above section. Production of the record of naturalization is sufficient, without proving a compliance with the preliminary requisites to naturalization ; the judgment of the court, admitting the alien to become a citizen, is conclusive evidence on that point: Ritchie v. Putnam, 13 Wend. 524. When it is clearly inferable from the record of naturalization that the alien had not declared his intention to become a citizen, ~as required by the act of Congress of 1802, but that the court had mistaken the registry of the alien’s arrival in the United States, for such declaration of intention, it seems that the naturalization is invalid; Banks v. Walker, 3 Barb. Ch. 438. But if such record is valid on its face, it is conclusive as to the regularity of the proceedings and the naturalization of the alien; and such record can not be contradicted by extrinsic proof. that no declaration had, in fact, been made; Id. Under the naturalization act of Gourress: of 1802, the infant children (though born out of the United | States.) of aliens, if dwell- ing within the United States at the time of the naturalization of their parents, become citizens by such naturalization; West v. West, 8 Paige, 433. _And the provision of that act on this subject is prospective, so as to include the children of aliens naturalized after the passage of the act, as well as the children of those who were naturalized before ; Ib. In Peck v. Young, 21 Wend. 389, and 26 ib., 613, the court of errors, by a vote of “I4 to 7, seems to have gone’a great length in extending the right of citizenship to the children of nat- uralized citizens. In that case, a native of Scotland became a citizen of the United States in 1776, and always continued as such; his daughter had -been born before his leaving Scotland ; remained there after his departure; was an infant after the peace of 1783; married abroad, while still an infant; was under cover- 24 REAL PROPERTY LAWS. ture till 1825; and finally came to this country, for the first time, in 1830. Held, that the daughter was a citizen. O., a native of the colony of New York, resided and owned land in this state after the declaration of independence. In 1782 he joined the British forces. In July, 1783, he, with his family, except J., his eldest son, left for Nova Scotia; O. died on the passage, but his family proceeded to, and settled in Nova Scotia, and ever afterwards resided in the British provinces. J. remained in this state, in the occupation of the land until about 1838, when he died leaving several children. Held, that all of O.’s children, except J., were aliens, incapable of taking by de- scent, and that, as against them, the land belonged to the children of J.: Orser vy. Hoag, 3 Hill, 79; and see cases there cited. $9. Certain titles nat to be affected by alienism.—No title or claim of any citizen of this state, who was in the actual possession of lands on the twenty first day of April, one thousand eight hundred and twenty five, or at any time before, shall be defeated or prejudiced on acount of the alienism of any person through or from whom his title or claim to such land may have been derived. The 8th section of the act to naturalize and to prevent the avoidance of titles in certain cases, 3 vol. of Greenleaf’s ed. of laws, p. 280, confirms all subsisting titles derived from aliens, and vest- ed in any persons who were at that time inhabitants of the state, and subsequent laws containing similar provisions have from time to time been passed. It was considered well to enact a general and prospective provision of the same character. Rev. NV. § 10. Who capable of aliening lands.—Kivery person capable of holding lands, (except idiots, persons of un- ‘sound mind, and infants,) seized of or entitled to, any es- tate or interest in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restric- tions and regulations provided by law. Conformable to the first part of sec. 1 of the act concerning’ tenures (1 R. L. 70.) The residue of the original section, saving the rights of chief lord, has been omitted as unnecessary. It was taken from the first and second chapters of the statute guia emp- tores, 18 Edw. I. To elude the restraint imposed by the feudal law upon the alienation of the fief, the practice of subinfeudation, was often resorted to, which, by dividing the fief into many parts, served to render the inferior tenant independent of the chief lord, and indirectly to effect a transfer of the fief itself. This practice TENURE OF REAL PROPERTY. 25 was restrained by Magna Charta, chap. 32, which provides “that no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him, which belongeth to the fee.” But as that provision was not sufficiently general, the statute of quia emptores extended it still farther. There seems to have been no necessity for the re-enactment of this statute in this state; the state of things which gave rise to it having never existed in the colony of New York; and the rights of lessors and their grantees, against lessecs and the assignecs of lessees, being perfectly secured by the act “to enable grantees of reversions to take advantage of the conditions to be performed by lessees.” 1 R. L. 368. Rev. NV. § 11. Certain purchases from Indians void.—No pur- chase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, with the Indians in this state, is valid, unless made under the authority and with the consent of the legislature of this state. § 12. Sales, &c., by Indians, prohibited—No Indian re- siding within this state, can make any contract for or con- cerning the sale of any lands within this state, or in any manner give, sell, devise or otherwise dispose of any such lands, or any interest therein, without the authority and consent of the legislature of this state, except as herein- after provided. Section 11 is the same as Art. 7,§ 12, of the constitution of 1822, and as Art. 1, § 16, of the amended constitution of 1846. Tn Jackson v. Wood,’ Johns. 290, it appeared that a bounty patent for a lot of land had been granted in 1791 to an Oneida Indian, “to hold unto him and his heirs and assigns for ever,” and that his heirs afterwards sold and conveyed the land; and it was held, that the conveyance was void, Indians in this state being un- able to alienate their lands without the consent of the legislature, or the approbation of the surveyor general. In Chandlers v. Edson, 9 Johns. 362, it was decided, that a person cannot lawfully enter on the lands of Indians, and cut and carry away timber even with their consent; that such an entry was a tresspass, notwithstanding a written license to enter, from the peace-makers of the tribe. In Dana v. Dana, 14 Johns. 181, the principle, on which Jackson v. Wood, and Chandler v. Edson were decided, was recognized and approved of. 26 REAL PROPERTY LAWS. In Jackson v. Sharp, 14 Johns. 472, the supreme court decided that the 37th Article of the constitution, making void purchases of lands from Indians, did not relate to the sale of lands by any individual Indian, but only prohibited sales by Indians, as a tribe, or in their national character. The court, in that case, further drew a distinction between the act of 18 March, 1788, and the act of 4 April, 1801, holding that the latter act was more extensive in its operation than the former, and considering that the decision in Jackson v. Wood was founded on the act of 1801; and it was accordingly held, that a conveyance by an Indian on the 22nd December, 1791, of lands, which had been patented to him for military service in the revolutionary war, was valid, being prior to the act of 1801. And this case was quoted with approbation in Jackson v. Brown, 15 Johns. 264. In the St. Regis Indians v. Drum, 19 Johns. 127, it was held, that the St. Regis Indians, although authorized by an act of the legislature, at their annual meetings “to make such rules, orders and regulations, respecting the improvement of their lands, as they shall judge necessary,” could not maintain an action for use and occupation against a white man, who had occupied their land under a parol agreement, as a tenant from year to year, at an an- nual rent, pursuant to the rules made by them, at their annual meeting, as to the improvement of their lands. The decision in this case is founded entirely on the construction of the 37th Article of the constitution, and of the act of 10th April, 1813, the judge, who delivered it, making no allusion to cither Jackson v. Wood, or Jackson v. Sharp. In Jackson v. Goodell, 20 Johns. 188, the same question arose as in Jackson v. Sharp, and the same distinction was taken as in that case, between the acts of 1788 and 1801. The court, however, in this case, went still farther, and held that Indians are not aliens, but citizens owing allegiance to the government and enti- tled to its protection, and that they may acquire property by pur- chase or descent, and aliene or transmit the same, as natural born citizens, subject to such regulations as the legislature may pre- scribe for their protection from imposition or fraud. This deci- sion was appealed from, and over-ruled by the court for the cov- rection of errors; Goodell v. Jackson, 20 Johns. 693. The Chan- cellor, to whose Judgment the reader is referred for a detailed and learned review of the whole question, approves of the decisions in the cases of Jackson v. Wood, Chandler v. Edson, and Dana v. Dana, and disapproves of the decision in Jackson v. Sharp, hold- ing that the distinction taken between it and Jackson v. Wood was unsound ; that the two decisions were entirely inconsistent with each other ; and that that in Jackson v. Sharp over-ruled Jackson v. Wood, introduced a new rule of construction, and procceded evi- dently upon a mistake. The conclusions come to in Goodell vy. TENURE OF REAL PROPERTY. 27 Jackson, by the court for the correction of errors (with but one dis- senting voice), were: that a patent for land to an Indian, and his heirs and assigns forever, is to him and ‘his Indian heirs, whether their civil character be that of aliens or citizens ; that the Indians within this state are not citizens, but distinct tribes or nations living under the protection of the government; that no white person can lawfully purchase any right or title to land from any indian or Indians, without the authority and consent of the legis- lature ; and that a deed, executed in 1797 by the son and heir of an Indian patentee of land to a citizen, in the usual form, without amy such consent, is illegal and void. Whatever opinion may be entertained as to the legal correct- ness or incorrectuess of the distinction taken in Jackson v. Sharp, it is quite clear that no purchases, or contracts for the purchase of land could, previously to the enactment of the following sec- tions, 13 to 17, and subsequently to 14th October, 1775, have been safely made with any Indians in this state, either collectively or individually, unless made in accordance with the provisions of the above sections 11 and 12. And it made no difference whether an individual Indian resided with his tribe or not; Lee v. Glover, 8 Cow. 189. In the marginal note to the case of Jackson vy. Hudson, 3 Johns. 375, it is stated to have been there decided, that the possession of a tract of land by the native Indians does not affect the validity of a patent from the state, granting the same land to white persons without the consent of the Indians. It seems to us that this is stating the decision in that case somewhat too strongly ; for Kent, Ch. J., in his judgment on this part of the case, says, “the defend- ant did not object’ (on the trial) “to the legality of the patent.” * * * “The policy or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we have nothing todo. * * * What would be the effect of an Indian possession or title, in opposition to the grant under the patent, if they were to be brought into collision, is not a question before us. * * * The most decent presumption is, that the Canajohary Castle lands had been previously purchased by the government.” In Fellows v. Lee, 5 Den. 628, the court of errors, affirming the decision of the supreme court in the same case reported in 6 Hill, 546, under the name of Ogden v. Lee, held that the title of the native Indians to their lands is an absolute ownership, and the right of pre-emption of lands in the western part of this state, ceded to Massachusetts by the convention of 1786, was simply a right to purchase the lands from the Indians when they choose to gell them. And in Strong v. Waterman, 11 Paige, 607, the right of the Indians in this state to the use and occupancy of their res- 28 REAL PROPERTY LAWS. ervations, which they have not voluntarily ceded to the state, nor granted to individuals by its permission, was considered to be un- ‘questionable. It was further held in that case, that the ultimate fee of such reservations is vested in the state, or in its grantees, subject to such right of use and occupancy by the Indians, until they shall voluntarily relinquish the same. And in Wadsworth v. Buffalo Hydraulic Association, 15 Barb. 83, it was held, that the state possesses the power to appropriate to public use the lands of the Indians, within its territory, upon making compensation there- for ; notwithstanding the grant of the right of pre-emption in such lands to the state of Massachusetts. And in Jackson v. Hudson, 3 Johns. 375, an outstanding title in certain Indians of the Mo- hawk tribe was held to be extinguished, as the title had never been claimed or asserted, and the tribe or nation had become ex- tinct. In the last paragraph of the decision in Strong v. Waterman, Indians are said not to be independent nations, but citizens merely, owing allegiance to the state government, and Jackson v. -Goodell, 20 Johns. 188, is cited as an authority ; but the learned Chancellor seems to have been unaware that Jackson v. Goodell was reversed ina subsequent part of the same volume of Johnson’s Rep. See 20 Johns. p. 693, and ante, p. 26. See, as to the personal property of Indians, Dole v. Irish, 2 Barb. 639, and Hastings v. Ellis, 3 Barb. 492. Section 12, supra, has been since modified ; see ss. 13-17. §$ 13. Rights of native Indians—Any native Indian may, after the passage of this act, purchase, take, hold and convey Jands and real estate in this state, in the same manner as a citizen; and whenever he shall have become a freeholder, to the value of one hundred dollars, he shall be liable on contracts, and subject to taxation and to the civil jurisdic- tion of the courts of law and equity of this state, in the same manner and to the same extent as a citizen thereof. [1843, ch. 87, § 4.] § 14. Oneida Indians may hold in severalty—The Onei- da Indians owning lands in the counties of Oneida and Madison, are hereby authorized to hold their lands in severalty, in conformity to the surveys, partitions and ‘schedules annexed to and accompanying the treaties made with the said Indians, by the people of this state, in, the year one thousand eight hundred and forty-two, and now on file in the office of the secretary of state; and the lots so partitioned and designated by said survey to the said . TENURE OF REAL PROPERTY. 29 Indians, shall be deemed to be in lieu of all claims and interest of said Indians, in.and to all other lands and pro- perty in the Oneida Reservation, except the mission lot on lot one, and the church lot on lot two, of the Oneida purchase, of May 23d, 1842, which are to be held by the said Indians as tenants incommon. [1845, ch. 185,§ 1.] § 15. Conveyances to be made declared valid.—All con- veyances of real estate hereafter executed by any Oneida Indian or Indians, may be acknowledged before any justice of the peace, or other officer authorized to take acknow- ledgments of deeds. [1847, ch. 486, § 1.] § 16. Office of attorney abolished, and superintendent to perform the duties—The office of attorney for the Oneida Indians is hereby abolished, and the superintendent of said Indians in addition to his present duties is hereby authorized and required to perform the duties heretofore required of such attorney, and shall be entitled to receive an annual salary of twenty-five dollars, and no more, for all services he may perform for said Indians. [Same ch. § 2.] § 17. Indians may sell—Twenty-five dollars a year for two years are hereby appropriated to pay said salary out of any moneys in the state treasury not otherwise appro- priated; but said office of superintendent shall not con- tinue beyond two years from the passage of this act; and thereafter said Indians shall have power to sell and con- vey their real estate the same as if they were natural born eitizens of this state. [Same ch. § 3.] § 18. Nations or tribes of Indians in this state, how to hold land-—All nations, tribes or bands of Indians who own or occupy Indian reservations within this state, and hold lands therein as the common property of such nations, tribes or bands, may by the acts of their respective Indian governments, divide such common lands into tracts or lots, and distribute and partition the same, or parts thereof, quantity and quality relatively considered, to and amongst the individuals or families of such nations, tribes and bands respectively, so that the same may be held inseveral- ty, and in fee simple, according to the laws of this state ; 30 REAL PROPERTY LAWS. a but no lands occupied and improved by any Indian accord- ing to the laws, usages or customs of the nation, shall be set off to any person other than the occupant, or his or her family. [1849, ch. 420, § 7.] § 19. Deeds of partition, how made and by whom.—tIn case such distribution or partition be made, the deeds to. be made to effect the same shall be made by such officers, agents or commissioners as said government shall appoint, and the commissioners of the land office shall approve, but before any such deeds be executed, the proceedings and acts authorizing such execution and appointing the parties so to do, shall be authenticated and proved before and to the satisfaction of the county judge of the county in which the lands to be conveyed shall lie, and recorded in the clerk’s office of the county. [Same ch. § 8.] § 20. Deeds to be acknowledged and examined by «a gudge.—Every deed which shall be executed under and in pursuance of such authority shall be acknowledged before such county judge by the parties who shall execute it, and said judge shall examine such deeds, and see that they be in due form, and in pursuance of the authority under which they be executed; and endorse on each deed his certificate of such examination and acknowledgment, and such certificate shall authorize the county clerk to- record such deeds in the records of deeds for his county. [Same ch. § 9.] § 21. Restriction—No lands thus distributed and par- titioned,; shall be alienable by the grantee thereof or the heirs of such grantee for twenty years after the day of the recording of the said deed thereof; but they may be par- titioned amongst the heirs of any grantee who shall die. They shall not be subject to any lien or incumbrance by way of mortbage, judgment or otherwise. [Same ch. § 10.] § 22. [Sec. 13.] Heirs of certain Indians may convey, &c.—The heirs of every Indian to whom land has been granted for military services rendered during the war of the revolution, shall be and are capable of taking and holding any such lands by descent, in the same manner as PERSONS WHO MAY HOLD LANDS. 31 if such heirs were citizens of this state, at the death of their ancestors; and every conveyance executed by such patentee, or his heirs, after the seventh day of March, one thousand eight hundred and nine, to any citizen of this state, for any such land, shall be valid, if executed with the approbation of the surveyor general of this state, to be expressed by an endorsement made on such conveyance and signed by him. A similar provision is to be found in 2 R. L. 175, sec. 55. Previously to the acts of the legislature of this state, passed in 1809 and 1810 in respect to the conveyance of lands by Indians, an Indian owning lands within this state, though by title derived from the government, had no legal capacity to convey, and a con- veyance by him, unless ratified in the form prescribed by law, is inoperative and void; Murray v. Wooden, 1T Wend. 531. And though a conveyance of lands by an Indian be, subsequent- ly to its date, duly approved of by the surveyor general, it is still inoperative, if previously to such approval, the Indian has con- veyed to a third person, and the deed to such third person has been duly approved of previously to the endorsement of the certifi- cate of approbation upon the deed first executed ; 1b. ; see also Jackson v. Brown, 15 Johnson, 264. The certificate of approba- tion, endorsed upon the first deed, does not operate to render the deed valid by relation from the time of its date; Jé.; and see Jackson v. Hill, 5 Wend. 532. In an action of ejectment by the grantee of the second deed against the grantee of the first, the fact that the certificate of ap- probation, endorsed upon the second deed, was erroneously or improvidently granted, will not avail to defeat a recovery ; /Mur- ray v. Wooden. Nor will a recovery be. prevented by showing that the grantee in the second deed or his agent, at the time of obtaining the second deed, knew of the existence of the first deed ; Jb. This is on the ground that the instrument purporting to be . the first deed was, in judgment of law, no deed at all. _ The endorsement of the surveyor general’s approbation need not state his reasons for giving it: “I approve of the within deed,” is sufficient ; Jackson v. Brown, 15 Johns. 264. His approbation to a deed by an Indian patentee or his heirs, that is void and inoperative, does not preclude him from after- wards giving his consent to a valid and operative decd from the same grantor of the same land ; Id. The approbation need not be given at the time of the exccution of the deed, but such deed Pe operative only from the time that such approbation is, in fact, Biven ; Jackson v. Hill, 5 Wend. 552. 32 REAL PROPERTY LAWS. A deed from an Indian, executed and ratified in conformity with the laws of this state, is a valid conveyance, notwithstanding the law of Congress, that no grant of lands from any Indian shall be valid unless made by treaty or convention entered into pursu- ant to the constitution of the United States; Murray v. Wooden. The above section, or the corresponding one in 2 R. L., is not intended to affect the disability of either infancy or coverture ; and hence a deed by an Indian heir, though duly approved of, is open to the same objection, on the ground of the infancy or cover- ture of the grantor, as deeds executed by others; Gillett v. Stan- ley, 1 Hill, 121. It is immaterial whether the Indian reside with his tribe or not ; Lee v. Glover, 8 Cow. 189. And the case is not altered by the Indian’s deriving his title by patent from the people; 1d. § 23. [Sec. 14.] Jmprovements to be paid for—lIf any land so ‘conveyed shall have been occupied or improved, at the time of such conveyance, the occupant, his heirs or assigns, shall be entitled to be paid for the improvements made by them, or either of them, in the manner provided in the second section of the act, entitled “An act concerning lands in the military tract,’ passed April 8, 1813. See the act of the 8th April, 1813, in 1 R. L. 3083, et seq. § 24. [Sec. 15.] When aliens may hold.—Any alien who has come, or may hereafter come into the United States, may make a deposition cr affirmation in writing before any officer authorized to take the proof of deeds to be recorded, that he is a resident of, and intends always to reside in the United States, and to become a citizen thereof, as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the United States require to enable him to obtain naturalization, which shall be certified by such officer, and be filed and recorded by the secretary of state in a book to be kept by him for that purpose. And such certificate, or a certified copy thereof, shall be evidence of the facts therein contained. [As amended 1834, ch. 272.] § 25. [Sec. 16.] May dispose of them, but not to lease—Any alien who shall make and file such de- position, shall thereupon be authorized and enabled to PERSONS WHO MAY HOLD LANDS. 33 take and hold lands and real estate, of any kind what- soever, to him, his heirs and assigns forever, and may, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do if he were a native citizen of this state, or of the United States, except that no such alien shall have power to lease or demise any real estate, which he may take or hold by virtue of this provision, until he becomes naturalized. Enactments similar to those contained in the above sections are to be found in the session laws of 1825, p. 427, ss. 1 and 2, with this exception, that the benefit of the law of 1825 was confined to alicns coming “into this state ;” since 1834, the power of taking and holding real estate in this state, under the above sections has been extended to any alien coming “into the United States ;” see session laws of 1834, chap. 272. An alien is a person born out of the jurisdiction and allegiance of the United States; 2 Kent’s Com. 50. The alien born wife of a naturalized citizen continues an alien, notwithstanding the nat- uralization of her husband; Sutff v. Forgey, 1 Cow. 89, and Kelly v. Harrison, 2 Johns. Cas. 29; but see post, pp. 39 and 40. A subject of Great Britain, who emigrated to this country after the declaration of independence, is an alien; Jackson v. Wright, 4 Johns. 75. W. E., a major in the British service, came to this state in 1774, and was arrested in 1776, by direction of a com- mittee of safety, as a person disaffected to the revolution, and remained in Albany as a prisoner on parole until the following winter, waiting for a passport to join his regiment. Subsequently, he left this country and joined the British forces; Held, that he had never become a citizen of this state, but had been at all times an alien ; Jackson v. White, 20 Johns. 313. When an alien, for the purpose of evading the law, purchases land in the name of a third person without any written declara- tion of trust, a resulting trust will not arise in favor of such alien ; Leggett v. Dubois, 5 Paige, 114. The law never casts a legal or an equitable estate upon a person who has no right to hold it; although such estate may, by an express contract or conveyance, be vested in an alien, until office found, (or, now, recovery in ejectment, see ante. p. 12,) for the benefit of the state ; 1b., per Wal- worth, C., p. 118. Buta conveyance of land to a citizen, upon trust to sell and pay the proceeds to an alien creditor, is a valid trust, and does not subject the interest of the alien in such pro- ceeds to forfeiture ; as the principle of public policy, which pro- hibits an alien from holding lands, either in his own name or the name of a trustee, without the consent of the state, does not apply to such a case; Anstice v. Brown, 6 Paige, 448. Where land is 34 REAL PROPERTY LAWS. taken in payment of a debt due to an alien, and is conveyed to a trustee upon a valid trust to sell the same and convert it into per- sonal estate for the benefit of the cestui que trust, upon the prin- ciples of equitable conversion, a court of equity will consider the land as personal estate belonging to the alien, and transmissible to his personal represeutatives as such; and if necessary, will compel the trustee, who holds the legal estate, to sell the land and convert it into money ; Io. An alien may take by purchase (and this includes title by de- vise ; The People v. Conklin, 2 Hill, 67), and maintain an action for the land, which can not be defeated by the defendant on the ground of his alicnage; Jackson v. Beach, 1 Johns. Cas. 399 ; Jackson v. Lunn, 3 id., 109. An alien may take real property and hold it, without making the deposition mentioned in sec. 24 (15), against every body but the state ; Matter of Leefe, 4 Kdw. 395. But an alien can not suggest his own alienism in bar of specific performance ; Scott v. Thorpe, 1 Edw. 512. An alien bought lands with his own funds, and had the convey- ance taken in his wife’s name, she being a citizen. He subse- quently became naturalized, and his wife having died leaving infant children, they were, upon his petition, declared to be trus- tees for and decreed to convey to him; In the matter of Windle, 2 Edw. 585. Where an alien was enabled by special act to hold real estate, subject to a restriction that he should not demise any part thereof, and by a subsequent act, it was enacted that all lands, purchased by such alien previously to the passage of the latter act, should vest in him in the same manner as if he had been duly naturalized at the time the title to such lands was acquired ; it was held, that the inhibition to lease, contained in the first, was removed by the second act; and that an action lay for rent reserved in a lease by the alien of lands, the title to which was acquired by him pre- viously to the passage of the latter act ; Ellice v. Winn, 12 Wend. 342. See post, ss. 33 and -36 of this Article, extending the power of holding real estate to such aliens as shall make and file the depo- sition or affirmation alluded to above in sec. 24 (15), after they have acquired such real estate’; sec. 33 to aliens who have ac- quired by purchase or devise, and sec. 36 to aliens who have inherited. See also sec. 41 of this Article, confirming all grants and devises theretofore made by aliens to citizens, or resident aliens capable of taking and holding real estate, or thereafter to be made by resident aliens capable of taking and holding. to resi- dent aliens capable of taking and holding, real estate ; and re- moving, retrospectively and prospectively, the disability to demise contained in the latter clause of above sec. 25 (16). ENURE OF REAL PROPERTY. 35 § 26. [Sec. 17.] Not to hold lands previously acquired. —Such alien shall not be capable of taking or holding any lands or real estate, which may have descended, or been devised or conveyed to him previously to his having be- come such resident, and made such deposition or affirmation as aforesaid. An analogous enactment is to be found in the laws of 1825, p. 42'T, proviso to sec. 1. It would seem that the provision, requiring aliens to take in- cipient measures before holding lands, does not abolish the com- mon law right of an alicn to take by purchase ; In the matter of Leefe, 4 Edw. 395. And the government alone can take advan- tage of an alicn’s disability to hold lands ; 1b., and see ante, p. 34. Where a naturalized citizen died in 1833, seized of real estate, the title to which he acquired in 1824, and an action of ejectment was brought by a brother and two sisters of the deceased, who were aliens at the time of his death, and who had not complied with the requirements of the act of 1825 relative to aliens ; it was held, that the plaintiffs, by reason of. their alienage, were in- capable of inheriting the estate of their deceased brother, although they had been residents of this state since 1805 ; ; Kennedy v. Wood, 20 Wend. 230. “The difficulty is, in short, not that James Ken- nedy” (the deceased) “ was incapable of taking and transmitting by descent, but that the plaintiffs were incapable of inheriting at the time of his death, by reason of having omitted to comply att the conditions imposed by the act of 1825.” Ib., per Cowen, J As the law now stands, the alien heirs could, in a case similar to Kennedy v. Wood, entitle themselves to hold the real estate of their ancestor by complying with the provisions of sec. 36, which see infra, p. 40. Aliens may be corporators and trustees in a religious corpora- tion; Cammeyer, v. United German Lutheran Churches, &c., 2 Sandf. Ch. 249. The above section is modified by sec. 33 of this Article, which enables alien residents of this state to hold lands which they have acquired by devise or purchase, on filing the deposition or affirma- tion therein mentioned after they have so acquired realestate ; but that section does not extend the same relief to aliens on whom lands descend. Their case is provided for. by sec. 36 of this Ar- ticle, which see. § 27. [Sec. 18.] Heirs to inherit in certain cases—W hen such alien shall die within six years after making and filing such deposition, intestate, leaving heirs inhabitants of the United States, such heirs shall take by descent, ad 36 REAL PROPERTY LAWS. and hold any real estate of which such alien died seized, in the same manner as they would have inherited if such alien had been, at the time of his death, a citizen of this state. A similar provision is to be found in the Session Laws of 1826, p. 348, sec. 2. This section does not say whether the heirs (if aliens) shall be capable of holding real estate without making and filing the de- position mentioned in sec. 24 (15), or not. Although the section says such heirs shall take “and hold,” &c., still it seems to us, that, considering the entire policy of the alien laws of this state, the heirs (if aliens) would do well to strengthen their title by complying with the provisions of sec. 24 (15). See ante, sec. 26 (17), and post, sec. 86, and cases there cited ; see also judgment in Connolly v. Smith, 21 Wend. 59. Sec. 36 expressly requires male alien heirs to make and file a deposition, and, being in pari materia with the above section, would no doubt be taken into con- sideration in construing the above. § 28. [Sec. 19.] Onsale of lands, aliens may take mort- gages, and may repurchase lands sold in certain cases.— If any alien shall sell and dispose of any real estate, which he is entitled by law to hold and dispose of, he, his heirs and assigns, may take mortgages in his or their own name, as a collateral security for the purchase money due thereon, or any part thereof; and such mortgagee, his heirs, assigns or legal representatives, or any of them, may re-purchase any of the said premises, on any sale thereof made by virtue of any power contained im such mortgage, or by virtue of any judgment or decree of any court of law or equity, rendered in order to enforce the payment of any part of such money, and may hold the same premises, in the like manner, and with the same au- thority, as the same were originally held by such mort- gagors. The second section of act of 1802 allows mortgages to be taken ; but it is defective in omitting the right of a mortgagee to pur- chase, which is supplied by the latter part of the above section. Rev. NV. . A power to repurchase by alien mortgagees, similar to the above, is to be found in an act, passed March 5, 1819, sec. 2. § 29. [Sec. 20.] Liabilities and incapacities of certain aliens—Kvery alien who shall hold any real estate TENURE OF REAL PROPERTY. 37 by virtue of any of the foregoing provisions, shall be subject to duties, assessments, taxes and burthens, as if he were a citizen of this state; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury. The session laws of 1825, p. 427, sec. 4, contain a provision similar to the above, with this exception, that that section enabled aliens to serve on a jury de medietate lingue ; this scems to de- prive them of that privilege, as it makes them incapable of serv- ing “on eny jury.” § 30. Title confirmed wm certain cases—Any naturalized ertizen of the United States, who may have purchased and taken a conveyance for any lands or real estate within this State, or to whom any such lands or real estate may have been devised, or to whom they would have descended if he had been a citizen at the time of the death of the person last seized, before he was qualified to hold them by exist- ing laws, may continue to hold the same in like manner as if he had been a citizen at the time of such purchase, devise or descent cast; and all conveyances, by deed or mort- gage, heretofore made by such naturalized citizen, are hereby confirmed. [1843. ch. 87 § 1.] § 31. Saving clause.—This act shall not affect the rights of the state in any case in which proceedings for escheat have been instituted; nor the rights of any person or per- sons, whose interest may have become vested in any such lands or real estate. [Same ch. § 3.] § 32. Real Estate—The words “real estate,” as used in this act, comprehend equitable as well as legal estate. It seems that sec. 30 applies only to persons who were in the actual possession of the lands, at the time of the passage of the act; Redpath v. Rich, 3 Sandf. 79. See 1 R. S. 750, sec. 10, for the definition of the term “real estate” as used in this Chapter generally; the definition given above in sec. 32 refers merely to the act of 1843, from which that section is taken. § 33. Aliens who acquired land before filing depositions. —Any alien resident of this state, who has heretofore 38 _ REAL PROPERTY LAWS. purchased and taken, or may hereafter take a con- veyance of any lands or real estate within this state, or to whom any lands or real estate has been or may hereafter be devised, before making and filing in the office of secretary of state, the deposition or affirmation in writ- ing, specified in the fifteenth section of the first title in the first chapter of the second part of the Revised Stat- utes, may, on making and filing such deposition or affirm- ation, hold the real estate granted, conveyed or devised to such alien, in the same manner and with the like effect as if such alien at the time of such grant, conveyance, or de- vise, were acitizen of the United States. [1845. ch. 115, $1] By the deposition or affirmation, stated in the above section to be “specified in the fifteenth section of the first title in the first chapter of the second part of the revised ‘statutes,” is meant that specified in sec. 24 (15) of the fourth edition of the R. &., from which we have taken the text; in the 2d ed. it was specifi- ed in sec. 15; and in the 3d ed. in sec. 16 (15). See ante, sec. 26 (17), and notes thereto. § 34. Rights of the wives of aliens—The wife of any alien resident of this state, who has heretofore taken by conveyance, grant or devise, any real estate, and become seized thereof, and who has died before the passing of this act, and the wife of any alien resident of this state, who may hereafter take by conveyance, grant or devise, any real estate within this state, shall be entitled to dower therein, whether she be an alien or citizen of the United States; but no such dower shall be claimed in lands granted or con- veyed by the husband before this act shall take effect. [Same ch. § 2.] § 35. Right of dower of alien women—Any woman, being an alien, who has heretofore married, or who may hereafter marry a citizen of the United States, shall be entitled to dower in the real estate of her husband, within this state, as if she were a citizen of the United States. [Same ch. § 3.] At common law an alien could not be endowed; Co. Lit. 31 6. Where a man died seized of lands acquired before, and of some acquired subsequently to, the revolution, and left an alien wife, she TENURE OF REAL PROPERTY.. 39 was held entitled to dower, only out of those lands owned by her ee before the 4th of July, 1776 ; Kelly v. Harrison, 2 Johns. as. 29. In Sutliff v. Forgey,1 Cow. 89, the widow of a naturalized alien was held entitled to dower, she being considered a purchas- er within the equity of the act of April 26, 1802, extended by the act of April 8th, 1808 (2 R. 8. 541-543). And this decision was affirmed in the court of errors; Forgey v. Suthff, 5 Cow. 718. In Priest v. Cummings, 20 Wend. 338, overruling the same case in 16 Wend. 617, it was decided, that a citizen’s widow, who was an alien when the act of 1802 was passed, is not entitled to dower under the provisions of that act, where the lands, in which dower was claimed, were acquired by the husband, and the marriage took place, previously to the passage of that act. Great pains are taken by the members of the court, who were of the majority in Priest v. Cummings, to distinguish that case from Forgey v. Sutff; but Senator Wager, the only dissenting member of the court, whose opinion is reported, and which opinion is mainly founded on the principle of stare decisis, says, “The only difference between this case and that of Forgey v. Sutliff is, that here Mrs. Cummings was an alien wife of a natural born citizen, and in Forgey v. Sutliff the claimant was an alien wife of a naturalized citizen, during the seizin of their husbands”; which, under our alien laws, amounts to no difference at all. It seems difficult to view Priest v. Cummings in any other light, but that of an over- ruling of Forgey v. Suthff ; and such is the view taken by Bronson, J.; see his opinion in Butler v. Van Wyck, 1 Hill, p. 463. The act of 1802 was confined to alien women, inhabitants of the state, and was extended in 1804, 1805 and 1808 to all who should become inhabitants at the close of the session of the legis- lature of the year 1808. And accordingly, a citizen’s alicn widow, not an inhabitant of the state in 1808, was held not entitled to dower; Mick v. Mick, 10 Wend. 379, and see Connolly v. Smith. 21 Wend. 59. In Davis v. Darrow, 12 Wend. 65, it was decided, that the widow of an alien is entitled to recover dower in lands, against a party whose title is derived from her husband, although the husband, at the time he took a conveyance of the lands, was not entitled to take and hold real estate, and such conveyance was not subsequent- ly affirmed by statute. But this decision is founded on the rule of law, which estopped the defendant from denying the seizin of the husband. In Currin v. Finn, 3 Den. 229, it was decided, that the alien widow of a citizen was not entitled to dower under the act of April 21, 1825 (Sess. L. of 1825, p. 427), which required all aliens to file a deposition, similar to that mentioned in sec. 24 (15), ante, p- 82, she not having filed such deposition. 40 REAL PROPERTY LAWS. It will be seen that sec. 35, supra, extends to women heretofore married to, as well as to those who may hereafter marry a citi- zen. The words of the section, “as if she were a citizen of the United States,” would seem broad enough to enable an alien widow of a citizen to hold lands assigned to her for dower, with- out filing any deposition. ‘This is contrary to the general policy of the New York alien laws, which are jealous of allowing an alien to hold real estate without his declaring an intention to be- come naturalized. A question might be raised as to whether this policy extends to female, as well as male, aliens ; for'in the next (36th) section, we find a provision compelling male heirs to file a deposition before they can hold lands by descent, while the sec- tion is silent as to female heirs ; thereby, at least implying, that they may hold by descent, without filing a deposition: and in sec. 39, post, every alien woman, being a resident of the state, is made capable of taking and holding lands by devise, and of exe- cuting any power in relation thereto, “the same as if she were a citizen of the United States,” and by sec. 40, post, alien women can take any estate in lands under marriage settlement, &c. And in neither of these sections is there any provision requiring alien women to file a deposition, as a necessary preliminary to their holding real estate. The second section of an act of Congress, passed February 10, 1855, would seem to remove all doubts on this point: it is there enacted, that any woman who might law- fully be naturalized under existing laws, married or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen. It will be noticed that this section includes alien women who were, at the passage of the act, married to citizens. § 36. Heirs of deceased aliens capable of taking and holding real estate——If any alien resident of this state who has purchased and taken, or hereafter shall purchase and take a conveyance of real estate within this state, has died, or shall hereafter die, leaving persons, who, according to the statutes of this state, would answer the description of heirs of such deceased alien, such persons so answering the description of heirs to such deceased alien, whether they are citizens or aliens, are hereby declared and made capable of taking and holding, and may take and hold as heirs of such deceased alien, as if they were citizens of the United States, the lands and real estate owned and held by such alien at his death, in the like: manner and with the effect as if such alien at his death were a citizen of the TENURE OF REAL PROPERTY. 4]. United States; but if any of the persons answering the description of heirs to such alien, are males of full age, they shall not hold the real estate hereby made descend- ible to them as against the state, unless they are citizens of the United States, or, in case they are aliens, unless they make and file in the office of the secretary of state the deposition or affirmation mentioned in the first section of this act. [1845, ch. 115, § 4.] This section is taken from the laws of 1845, chap. 115, sec. 4. And in Brown v. Sprague, 5 Den. 545, a quit claim deed, executed in 1820 by the alien heirs of a deceased alien, of lands which they were incapable of holding by reason of their alienism, such heirs not being alive at the passage of the act of 1845, was held void, as that “act does not operate to confirm a title pre- viously acquired by an alien heir. Had the heirs been alive at the passage of the act, the effect might have been otherwise ; I0., p. 550, per Beardsley, Ch. J. It is a well established principle of the common law that an alien can neither inherit, nor transmit lands by descent. 2 Kent’s ‘Com. 53, et seq. This has been recognized in numerous cases in our reports ; sec, amongst others, Chief Justice Savage's decision in Jackson v. Green, 7 Wend. 333. The above section removes both of those disabilities, requiring alien heirs, if males and of full age, to “make and file in the office of the secretary of state the deposition or affirmation mentioned in the first section of this act.” The words “ the first section of this act” must be under- stood as applying to chap. 115 of the session laws of 1845, from which the above section is taken, and the first section of which enables aliens, who acquired land before filing depositions, to hold such lands on filing the deposition mentioned in sec. 24 (15) of this Article. § 37. LHffect of conveyance by alierts who die.—Any resi- dent alien of this state who has purchased and taken con- veyance, or who shall purchase and take a conveyance of real estate within this state, and has died or shall die after having devised or conveyed the same, the devisee or grantee of such real estate may take and hold, and is hereby declared capable of holding the real estate so granted or devised, whether such grantee or devisee bea citizen or. alien, according to the nature and effect of such grant or devise; but no devisee or grantee of full age who is an -alien, shall hold such real estate as against the state, un- Cc 42 REAL PROPERTY LAWS. less he make and file in the office of secretary of. state the deposition or affirmation mentioned in the first section of this act. [1845, ch. 115, § 5.] § 38. Aléens who file depositions may grant and devise real estate.—Any resident alien who has purchased and taken by deed or devise any real estate within this state, or who may hereafter purchase and take by deed or devise any real estate within this state, and who has made and filed, or shall make and file in the office of the secretary of state, the deposition in the first section of this act mentioned, may grant and devise such real estate to any citizen of the United States, or to any alien resident of this state, in the same way and to the like effect, and to and for the same purposes as if such alien were a citizen of the United States; but no resident male alien of full age shall hold any lands so granted or devised to him as against the state, unless he make and file in the office of the secretary of state the deposition or affirmation in the first section of this act mentioned. [Same ch. § 6.] § 39. Alren women may hold land by the will of their hus- bands.—Every woman being an alien and resident of this state, is hereby declared to be, and is hereby made capable of taking and holding real estate under the will of her husband, or of any person capable of devising any real estate, and she is hereby declared to be and is hereby made capable of executing any and every power in respect to the real estate devised to her, and which may lawfully be created, the same as if she were a citizen of the United States. [Same ch. § 7.] § 40. Marriage Settlements—Every woman being an alien and resident of this state, is hereby declared to be and is made capable of taking any and every beneficial interest or estate in any lands or real estate within this state, which has been or may be created in her favor, or for her benefit in any marriage settlement, or in any will or devise made by her husband, or of any person capable of devising real estate, subject to all the provisions of law, regulating the creation of uses and trusts. [Same ch. § 8.] TENURE OF REAL PROPERTY. 43 § 41. Former devises, grants, &e., by aliens confirmed.— Every grant, devise, demise, lease or mortgage of any lands within this state, heretofore made and executed in due form of law by an alien to any citizen of this state, or to any resident alien capable of taking and holding any real estate, or any beneficial interest therein within this state, or which may hereafter be made and executed by any resident alien capable of taking and holding real estate within this state, to any citizen of this state, or to any resident alien capable of taking and holding real estate, or any beneficial interest therein; and all rents reserved or hereafter reserved on any such lease or demise, and all lawful covenants and conditions in any such lease or de- mise, are hereby confirmed, and shall be deemed and taken to be as valid and effectual, as if made by or between cit- izens of this state. [1845, ch. 115, §9.] The above six sections are taken from the laws of 1845, ch. 115, ss. 5, 6, 7, 8 and 9. It has been decided, that sec. 9 of that ‘act, corresponding to sec. 41 supra, does not operate to confirm a title previously con- veyed by an alien heir of one holding real estate ; accordingly, a quit claim deed, executed by alien heirs in 1820, was held to con- vey no title to lands, the title to which is vested for the first time, if at all, in 1845, under the act of that date ; Brown v. Sprague, 5 Den. 545. § 42. Duties of Aliens who hold real estate—Every alien who shall hold any real estate by virtue of any of the foregoing provisions, shall be subject to duties, assess- ments, taxes and burthens, as if he were a citizen of the United States; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury. [Same ch. § 12] § 43. Certain provisions applicable—The provisions of section nineteen [28], of title one, chapter first, part second. of the Revised Statutes, are hereby made applicable to this act, and all the provisions of title twelve, chapter nine, part first of the Revised Statutes, inconsistent with the provisions of this act, are hereby repealed. [Same ch. §13.] 44 REAL PROPERTY LAWS. § 44. Saving clause—Nothing herein contained shall prejudice the rights bona fide acquired by purchase or de- scent, without notice before this act shall take effect. [1845, ch. 115, § 14.] The above sections are taken from sessions laws of 1845, chap. 115, ss. 12,13 and 14. Sec. 42 is precisely the same as sec. 29 (20), which see ante, p. 36-7. Several laws (which have not been revised), relating to the rights of aliens, generally, to purchase and hold lands, and confirming titles acquired by them, are reprinted in 3 R.8. 8rd ed. 266-71. Various acts have also been passed au- thorizing certain aliens by name to take and hold real estate. These acts are so numerous that they can be found only in the session laws of each year. ; It is understood to be a gencral rule that when an alien is al- lowed specially by statute, to take and hold lands to him and his heirs, he has of course a capacity to transmit, by inheritance, to his alien offspring, and they have cqually a capacity to take; Goodell v. Jackson, 20 Wend., per Kent, C., p. 707. But any such act, inter- fering with a treaty of the United States, is void; Jackson v. Wright, 4 Johns. 75. TITLE II. Of the nature and qualities of estates in Real Property, and the alienation thereof. Art. 1.—Of the creation and division of estates. Art. 2.—Of uses and trusts. Art, 3.—Of powers. Art. 4.—Of alienation by decd. ARTICLE FIRST. Of the Creation and Division of Estates. Sec. 1. Enumeration of estates in land. 4 $* 2. Estates of inheritance, a fee simple ; when a fee simple absolute. $ <4, —4., _ etry and to be fees a le; remainders thereon, when valid. =~} ~ § 5. What to be estates o: freehold, tas real, and chattel interests. 6/) 6. Estates for life of third person, when freehold, when chattels real. 4 2 5 7. Division of estates into those in possession and those in expectancy. ¢ 2 8. Definition of the estates respectively. Gey , i 9, Enumeration of estates in expectancy. & ¥, 10. Definition of a future estate. i pum 11. When a future estate is a remaindér. 64%; 12. Definition of a reversion. 64, 13. When future estates are vested, when contingent. 64, 14, Certain future estates void; when power of nace. A suspended. é S wo 15. How long power of alienation may be suspended. 16. In certain case a contingent remainder in fi ay bé created. g by 17. Limitation of successive estates for life. . 18. Remainders upon estates for life of third person. Fe. CREATION AND DIVISION OF ESTATES. 45 19. When remainder to take effect. if estate be for life of more than two persons. Zz 20. Contingent remginder on a term for years, Ye , 21. Estates for life, as remainders, on a term forfyears. Ga, 22. Meaning of “hcirs’? and “issue” in certain remainders. 2. 23. Limitations herein prescribed, (o apply to chattel interests in lands. 92. 24, Remainders, future and contingent estates, how created. 2. 25. Two or more future estates, in the alternative, may be crefted. 9 3+ 26. Future estates not to be void on ground of improbability, Ke. 9k, 27, Remainder upon a contingency ; its effect. 7 28. Heirs of a tenant for life, when to take as pte dsers. Fb . 29. Construction of certain remainders. é Of 30-31. In what cases posthumouschildren to take, or defeat, future estates. / 4 4 32. Expectant estates not to be defeated by owners of precedent estate, ke. /o9 - 33. But such estates may be defeated by means provided by the grantor. 40 34. Remainder not to be defeated by termination of precedent estate. 70 35. Expectant estates descendible, devisable and alienable. 7 obs 36. Limitations on the disposition of future profits of lands. oe a 37. Accumulations of profits of land, how and for whom may be directed. 7 vk s 38. Other directions for accumulation, when void in part, when wholly void./ 39. When profits, &c., may be applied to education, &c., of infants. / 2° 40. To whom rents and profits of lands, in certain cases to belong. fy y 41. What deemed the time of credtion of expectant estates. // § m 42. Expectant estates not herein enumerated. abolished. #2 43. Nature, &c., of estates in severalty, joint tenancy and in common. ¢/Y, 44, What to be deemed estates in common, what in joint tenancy. é '%, § 1. Enumeration of estates in land.—EKstates in lands are divided into estates of inheritance, estates for life, es- tates for years, and estates at will and by sufferance. An estate in lands, tenements and hereditaments signifies such an interest as the tenant bath therein ; so that, if a man grants all his estate in Dale to A, and his heirs, every thing that he can possibly grant will pass thereby. 2 Black. Com. 103. The word, estate, is frequently used to distinguish freeholds from chattel interests ; thus, a man is said to be seized of an estate of freehold, and possessed of a term of yearz. In the above section, it is used in its more comprehensive sense. Sec, further, Van Rensselaer v. Poucher, 5 Den, 35. Estates were divided by Blackstone into estates of freehold, and estates less than freehold ; the former comprising freeholds of inheritance, which were either absolute, or limited fees, and freeholds not of inheritance or for life only ; the latter comprising estates for years, estates at will, and estates at sufferance. Kent divides estates into estates in fee, for life, for years, at will, and at sufferance. This division is similar to that contained in the above section, the words “ of inheritance” being substituted for “in fee”; but this difference is, scarcely, one even in name, the next section declaring that all inheritances shall be termed “ fees simple,” or “ fees.” Estates of inheritance —Mr. Preston, in his treatise on convey- ancing, divides estates of inheritance into estates in fee simple, de- terminable fees, qualified fees, conditional fees, and estates tail. \ 46 REAL PROPERTY LAWS. With us, now, estates of inheritance are divided into fees simple or absolute fees, and defeasible or conditional fees ; sec next sec- tion. It may seem somewhat inconsistent to retain the term “fee simple,” which we have derived from feudal times, after we had abolished the feudal tenures and all their incidents. But when it is considered how impossible it is to blot out names which have been in use for centuries, and what great danger always attends legislation which substitutes new and undefined terms for those to: which age has assigned a well settled interpretation, it will be seen that the revisers did well in recommending the legislature to. retain the word, fee simple, although they thus perhaps sacrificed something of the symmetry of their system. Kent (and his de- finition seems still applicable) defined a fee simple to be, an estate- of perpetuity which 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 aliene for a limited time, or not to a particular person, it ceases to be a fee simple, and becomes a fee subject toa condition. In the case of DePeyster v. Michael, 2 Seld. 467, the question of pre-emptive rights of purchase and of the reservation of quar- ter sales by. a lessor in fee came fully before the court of appeals. It appeared there, that in a lease of lands in fee, executed in 1785, the. lessor, in addition to an annual rent, reserved to himself, his heirs and assigns, the right to purchase the premises in case the lessee, his. heirs, &c., should choose to sell, on paying three-quarters of the price demanded, the lessee covenanting to make the first offer to the lessor, his heirs, &c., upon those terms, and in case the offer should be declined, then the lessor reserved to himself, his heirs, &c., one fourth part of all the moneys which should arise from the: selling, renting or disposing of the lands by the lessee, his heirs or assigns, when and as often as the same should be sold, rented or disposed of ; with the condition that in case of a sale.or other transfer, without the payment of such one-fourth to the lessor, his heirs or assigns, the sale or transfer should be void, and the prem-. ises should revert to the lessor, his heirs or assigns, who might then re-enter upon the premises and repossess and enjoy the same as of his former estate. It was held that the reservation of quarter sales, and the condition and right of re-entery, upon default of payment of such quarter sales, were void. By the common law, restraints upon the alienation of lands could only be imposed by persons having a reversion or at least a possibility of reversion therein. And it seems, that under the colonial government the English statute of quia emptores was not regarded as in force, and citizens could therefore convey lands in fee, to be holden directly of them and their heirs, &c.; and such /, grantors, being entitled to the reversion or escheat on failure of the issue of the grantee, could lawfully annex conditions to the power of alienation. But the acts of. October 22, 1779, (1 Jones v. . Varick, 44,) transfering the seigniory of all lands, escheats, &c., from the king to the people of this state, and the act of February 20, 1787, concerning tenures, (1 R. L. 70,) put an end to all feu- dal tenures’ between one citizen and another, and substituted in their place a tenure between each landholder and the people in their sovereign capacity, and thus removed the entire foundation on which the right of the grantor to restrain alienation had for- merly rested ; 10. Those statutes ure retroactive, and yince their passage all re- straints upon alicnation contained in conveyances in fee, whether executed priov or subsequent to the date of those acts, are void ; Ib. A reservation, in a conveyance in fee, of a pre-emptive right of purchase by the grantor, his heirs, &c., in every case of sale by the grantee, his heirs or assigns, and the reservation by the grantor of the right to a portion of the sale money on each sale by the grantee, &ec., are consequently void as repugnant to the estate granted, and as illegal restraints upon the power of aliena- tion. And these principles apply as well to deases in fee, reserving rent, as to absolute conveyances; Ib. A right of re-entry for non-payment of rent, or non-performance of any other condition, is not a reversion or possibility of rever- sion. It is not an estate in the land, but a right of action, and if enforced, the person entering would be in by a forfeiture of condition, and not by reverter. Where lands are leased in fee, therefore, whatever conditions the lease may contain, the lessor has no reversion or possibility of reversion, and can not impose restraints upon the power of alienation by the lessee ; Id. Estates for life—Hstates for life are, where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one, in any of which cases he is styled tenant for life ; only when he holds the estate by the life of another, he is usually called tenant pur autre vie. Lit. sec. 36. The foregoing are cases where estates for life are created by act of partics. Blackstone mentions three cases, where estates for life are created by act of law. 1. Tenancy in tail af- ter possibility of issue extinct; a species of tenure which does not exist here since the abolition of tenancies in tail. 2. Tenan- cy by the eurtesy of England; the nature of which tenancy does not seem to have been altered by any provisions of the revised statutes ; but to establish which tenancy in wild and uncultivated lands in this state, the ownership of the wife, without any actual seizin, is sufficient, where there is no adverse possession; Jackson v. Selick, 8 Johns. 262 ; and see more at large, 4 Kent’s Com. 27- CREATION AND DIVISON OF ESTATES. AT 48 REAL PROPERTY LAWS. 35. And 8. tenancy in dower, the statutory provisions relative to which will be found post, title third. Where the owner of a mill agreed to pay a mill-wright for re- pairing the mill when it should be finished, and further to secure the mill to the mill-wright until the profits of the mill should be sufficient to discharge his claim ; it was held, that this was a mere agreement for a lease, but, if it could be considered a, lease, it was a lease for life determinable when the claim of the mill-wright should be paid ; The People v Gillis, 24 Wend. 201. . Tenant for life can not be affected by any act of the remainder- man, as in locating the land, without proof of the privity or con- sent of tenant for life ; Doe v. Thompson, 5 Cow. 371. Tenant for life can not by his own act prejudice the remainder-man ; as, in the partition of lands; Jackson v. Luquere, id. 229. And the possession of tenant for life is not adverse to the remainder-man, and the latter may make a valid conveyance notwithstanding such possession ; Grout v. Townsend, 2 Hill, 554. Every tenant for life is entitled, of common law, to take rea- sonable estovers, that is, wood from. off the land, for fuel, fences, agricultural erections, and other necessary improvements ; 4 Kent’s Com. 73. A tenant, who has a right to reasonable estovers for fire-wood, must first use the dead and dry trees on the premises, and the cutting of green trees for such use, without necessity, is waste ; Clarke v. Cummings, 5 Barb. 339. If cutting timber, otherwise than for reasonable estovers, work a forfeiture under the lease, the tenant can not justify such cutting by the fact that he had procured fire-wood and fencing timber from other lands owned by him, and had cut no more upon the demised premises than the lease authorized him to cut, where he had used such for purposes other than those authorized ; Id. A tenant for life has a right to take from the premises rcasona- ble fire-wood for the use not only of the house which such tenant occupies, but also sufficient to. supply the house of the tenant’s servant, who cultivates the land, provided it can be done without injuring the inheritance ; Gardner v. Dering, 1 Paige, 573. Butin Sarles v. Sarles, 3 Sandf. Ch. 601, it was held, that a tenant for life of a farm of one hundred and sixty-five acres is not entitled to fire- bote for the dwelling of a farmer or laborer, in addition to fire- bote for the principal dwelling house or mansion ; and that a custom to that effect was unreasonable and void. And a tenant for life, though entitled to reasonable estovers, has no right to dig up and use soil or wood on the demised premises, with a view to the manufacture of bricks for sale; and if he do so, the landlord is entitled to an injunction restraining him from committing fur- ther mischief of the like character; Livingston v. Reynolds, 26 Wend. 115, and 2 Hill, 157. The rule a8 to estovers is the same here as in England ; 1b., per Cowen, J.,2 Hill, 159. Asis also the rule as to emblements; see 4 Kent’s Com. 73. CREATION ANO DIVISION OF ESTATES. 49 A tenant for life of real or personal estate is bound to account for the principal only ; the income or interest belongs absolutely to such tenant and may be appropriated or invested at pleasure ; Miller v. Delameter, 12 Wend. 433. But if the estate be charged with an incumbrance, the tenant for life is bound to keep down the interest out of the rents and profits; but he is not chargeable with the incumbrance itself, and he is not bound to extinguish it. The rule applies to a tenant in dower, and by the curtesy, as well as to any other tenant for life, with this qualification, that a widow, being a tenant for life of only one-third of the lands, is bound to keep down, during her life, only one-third of the interest of a mortgage debt thereon; Swaine v. Perine, 5 Johns. Ch. 482. If the tenant for life pays off an incumbrance on the estate, he is, prima facie, entitled to that charge for his own benefit, with the qualification of having no interest during his life. And if the incumbrancer neglects for years to collect his interest from the tenant for life, he may, notwithstanding, collect the arrears from the remainder-man ; though the assets of the tenant for life would equitably be answerable to the remainder-man for his indemnity, and they remain answerable for arrears of interest accrued in his life-time. The true principle on the subject is, that the tenant for life is to keep down the annual interest, even though it should exhaust the rents and profits ; and the whole estate is to bear the charge of the principal, in just proportions ; 4 Kent’s Com. 74-5. The tenant for life is bound to pay ordinary taxes from the rents and income. An assessment which goes to benefit the in- heritance would seem to be a proper subject of apportionment ; Cairns v. Chabert,.3 Edw. 312. Where a house and lot were de- vised, subject to a mortgage, to three persons equally, for life, with remainder over in fee; held, that the tenants for life must keep down the interest equally out of the rents. And the executors having paid off the mortgage during the continuance of the life estates, it was held, that the tenants for life must bear the interest which accrued upon it from the testator’s death to the time of payment, and continue to be charged with interest as if the mort- gage remained ; Cogswell v. Cogswell, 2 Kdw. 231. As a general principle, a tenant for life, or years, without some special agreement to the contrary, is responsible to the reversioner for all injuries amounting to waste, done to the premises during his term, by whomsoever the injuries may have been committed, with the exception of the acts of God, and public enemies, and the acts of the reversioner himself; sec 4 Kent’s Com. 77. If- therefore the tenant should, by neglect or wantonness, occasion any permanent waste to the substance of the estate, whether the waste be voluntary or permissive, as by pulling down housés ; suffering them to go to decay from the want of ordinary care ; cut- ting the timber unnecessarily ; opening mines; or changing one 50 REAL PROPERTY LAWS. species of land into another ; he becomes liable, in a suit by the person entitled to the immediate estate of inheritance, to answer in damages, as well as to have future waste stayed; Jd. 76. And this notwithstanding any intervening estate for life or years ; 2 R. &. 750, see. 8. A lessee for life may fell part of the wood and timber on wild and uncultivated land, so as to fit the land for cultivation, with- out being liable for waste ; but he can not cut down all the wood and timber so as permanently to injure the inheritance ; Jacison v. Brownson, 7 Johns. 227. Ifa tenant for life cut wood on the premises to burn bricks, and use the soil for making them, it is waste at common law ; Livingston v. Reynolds, 26 Wend. 114, and 2 Hill, 157. A lessee for life, who has covenanted not to assign without the consent of his landlord, and who assigns with such consent, re- mains still liable for a breach by the assignee of the covenants contained in the lease ; Jackson v. Brownson, 7 Johns. 227. Where a lessce for life covenants not to sell, dispose of, or assign his estate in the premises without permission of the lessor, and the lease contained a clause of forfeiture, it was held, that a lease for twenty years of part of the premises did not work a forfeiture ; nothing short of an assignment of his whole estate would produce a forfeiture ; Jackson v. Stlvernail, 15 Johns. 278, and see Jackson v. Harrison, 17 Johns. 66. Nor would a sale of the whole pre- mises under execution against the lessee work a forfeiture, there being no evidence of fraud on the part of the lessee ; Jackson v. Stlvernail, and Jackson v. Kipp, 3 Wend. 230. ‘Tenant for life did not forfeit his estate by leasing.in fee; Grout v. Townsend, 2 Hill, 554; Jackson, v. Mancius,2 Wend..357. And, now, no form of conveyance can work a forfeiture of his estate ; 1 R. 8. 739, sec. 145. One claiming lands as heir of his mother can not recover in ejectment against an occupant who entered under the father, while there is an outstanding estate for life in the latter, as tenant by eurtesy ; Grout v. Townsend. — Estates for years—Tenant for years ‘is, where a man letteth lands or tenements to another for term of certain years, after the number of years that is accorded between the lessor and the les- see. And when the lessee entereth by force of the lease, then is he tenant for term of years. Litt. sec. 68. _ A tenant for years forfeits his term by a refusal in pais to pay rent, by-denying the title of his landlord, and by accepting title from a hostile source ; Jackson v. Vincent, 4 Wend. 633. Although a parol lease for seven years be void by the statute of frauds, yet it enures as a tenancy from year to year, if the tenant. enter and hold under it; and it will regulate the terms of the tenancy, in other respects ; as the rent, the time of the year when the tenant must quit, d&c.; Schuyler v. Leggett. 2 Cow. CREATION AND DIVISION OF ESTATES. 51 660. Though a lease by parol be for a longer term than three years, and so void for the term, within the statute of frauds ; yet the tenant entering has an interest from year to year, regulated in every respect by the parol demise, except as to the term; The People v. Rickert, 8 Cow. 226. By the statute of frauds as amended in this state, a parol demise for longer than one year is void ; 2. R. 8. 134, see. 6. Where a lease for seven years contained a condition that the lessee should not assign “ the premises thereby leased or any part there- of to any person,” &e., with a clause of re-entry and forfeiture, no forfeiture was incurred by underletting for two years, or a period short of the whole term ; the words of the condition meaning an assignment of the premises or a part thereof, for the whole term ; Jackson v. Harrison, 7 Johns. 66. And where one of the condi- tions was that the lessee should pay all the taxes, &c., the lessor had no right to re-enter for a breach of the condition, without showing a demand of the payment of tax within the period required by law ; Jo. Nor can the lessor re-enter for a forfeiture for non-pay- ment of rent, without showing a strict compliance with all the formalities required by the common law, his claim being regarded as stricti juris; Ib. Where at the bottom of a lease containing a clause of re-entry for non-performance of the covenants, the lessee agreed not to make alterations in the buildings without consent of lessor, this was held a covenant, not a condition for breach of which the lease was forfeited ; Id. Where A.’s tenant from year to year takes a lease from B., the act is void, and can not work an adverse possession against A ; Jackson v. Miller, 6 Cow. 751. Where one leases to another for years, the former can not impair the rights of the latter, by con- veying the demised premises in fee without excepting them; The People v. Rickert, 8 Cow. 226. But this must be taken subject to the provisions of the revised statutes regulating the recording of deeds. Where a lessee for years covenanted that the buildings, which he should ercct, should at the expiration of the term revert to the lessor “without damages of any kind except the natural wear there- of,” and a building so erected was destroyed by means of the negligent acts of a third party ; held, that it was waste for which the tenant was responsible to the lessor, and that the lessee or his assignee in an action against the party guilty of the negligence, was therefore entitled to recover the whole value of such build- ing ; Cook v. The Champlain Transportation Company, 1 Den. 91. A tenant for years is not entitled to emblements provided the lease be for a certain period, and does not depend upon a contin- gency ; but where the lease for years depends upon an uncertain event, as if a tenant for life, or a husband seized in right of his wife, should lease the estate for five years, and die before the ex- 52 REAL PROPERTY LAWS. pivation of the term, by reason whereol the lease is determined, the lessee is entitled to emblements ; Litt. sec. 68 ; sce also Stew- art v. Doughty, 9 Johns. 108 ; Whitmarsh v. Cutting, 10 Johns. 360 ; Bain v. Clark, id. 424; 4 Kents Com. 199, e¢ seq. Estates at will and by sufferance—Tenant at will is where lands or tenements are left by one man to another to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. - In this case the lessee is called tenant at will, because he hath no certain nor sure estate; for the lessor may put him out at what time it pleaseth him. Litt. sec. 68. A parol gift of land, accompanied with possession, creates only a tenancy at will, and the tenant has no power to lease the land; Jackson v. Rogers, 1 Johns. Cas. 33, and 2 Cai. Cas. 314. One seized of land sold and conveyed upon a fi. fa. against him, and holding over after sale for an uncertain term, by consent of the purchaser, is a tenant at will; WVichols v. Williams, 8 Cow. 18. Where a person in possession of land, contracts for the purchase of it, such an act is the recognition of the vendor’s title and pre- cludes the purchaser from denying it, and, in case of forfeiture he becomes a tenant at will; Whiteside v. Jackson, 1 Wend. 418. A person occupying land, where no terms are prescribed, and with- out a reservation or payment of rent, is a tenant at will; Jackson v. Bradt, 2 Cai. 169. An agreement’ to sell land does not import a license to enter; but, at most, gives an implied permission to occupy as tenant at will ; Ives v. Ives, 13 Johns. 235. If one enter under an agreement for a lease, the rent to be paid monthly, and refuse to accept a lease, he becomes a tenant-at will, or by suffer- ance, and is liable to be ejected immediately ; but if the landlord accept the monthly rent, he becomes tenant from month to month, and is entitled to a month’s notice ; Anderson v. Prindle, 19 Wend. 391, and 23 id. 616. Where A. agrees to hire a lot of land of B. for a year, for $100 rent, and enters and holds over the year, he is a tenant by sufferance ; Jackson v. McLeod, 12 Johns. 182. In Jackson v. Salmon, 4 Wend. 3277, the reporter’s head note, that “a tenant for one year hold- ing over is a tenant from year to year, and entitled to notice to quit before an ejectment can be brought against him,” would seem to state the decision too broadly, and as if establishing the pro- position generally, that a tenant for one year holding over is a tenant from year to year. The only question in the case was, whether the defendant was entitled to notice to quit; see the judg- ment in Jackson v. Salmon, and remarks on that judgment in Rowan v. Lyttle, 11 Wend. 620, by the same judge who decided Jackson v. Salmon. However, it is hard to reconcile Jackson v. Salmon with Jackson v. McLeod, supra. Fiver since the cases of Doe d. Rigge v. Bell, 5 T.R.471, and Clayton v. Blakey, 8 T. R. 3, periodical payment of rent has CREATION AND DIVISION OF ESTATES. 53 been judicially construed to clevate tenancies at will into ten- ancies from year to year for the purpose of compelling a jandlord to give notice to quit before recovery by ejectment. The judges required a reasonable notice, and a six months’ notice was held to be reasonable. This doctrine had been con- stantly recognized by our courts, till the legislature reduced the time, for which the notice to quit was required to run, froin six months to one month; see 1 R. S. 745, see. 7. But this one month’s notice must still terminate with the end of the year ; see Prouty v. Prowty,5 How. Pr. R. 81. . But in Swaine v. Perine, 5 Johns. Ch. 482, it was decided that a deed given by a husband, just before marriage, to his daughter, without any consideration, and kept secret till after the marriage, was fraudulent as against the wife’s dower. Hach of these cases seems ‘to have been decided on its own peculiar merits. Although the deed of an infant is voidable only, and not void, yet where an infant feme covert joined her husband in a convey- ance of lands of which he was seized in his own right; Held, that her conveyance was void, she having then no estate in the lands ; and that, having survived her husband, she was entitled to dower notwithstanding her conveyance, though she had arrived at full age and had done nothing to disaffirm such conveyance ; Sherman v. Garfield, 1 Den. 329. See, also, Cunningham v. Knight, 1 Barb. 399. A feme covert is not barred of her right of dower by joining ‘with her husband in the conveyance of lands, and duly acknowl- cdging such conveyance, if, at the time of such acknowledgment, she bea minor ; Priest v. Cummings, 16 Wend. 617, and 20 id., 338 ; Sanford v. McLean, 3 Paige, 117. An infant wife, being informed that it would not prejudice her rights, joined her husband in a deed of his real estate to trustees, for the payment of his debts. Such a deed can not be set up in equity asa bar to her dower in such real estate; Sanford v. McLean. | Where the vendor of a lot of land fraudulently conveyed a part only of the premises contracted for, and his wife joined him in the deed without being privy to the fraud, the court compelled him to execute a conveyance of the whole, but refused to compel the wife to join in such conveyance ; Wiswall v. Hall, 3 Paige, 318. A widow is entitled to dower in rents of land leased by her hus- band, notwithstanding she executed a release to the lessee of her dower right. Such release only has the effect of a confirmation of the tenant’s estate, and is not an abandonment of her dower as be- tween herself and her husband’s heirs ; Williams v. Cox, 3 Edw. 178. A widow until the assignment of her dower has no estate in the land out of which such dower arises. A right of dower, be- fore assignment, is aright resting in action only. The widow may release it, but she can not convey or assign it; Jackson v. 264 REAL PROPERTY LAWS. Vanderheyden, 17 Johns. 167; Jackson v. Aspell, 20 ad., 411; Ritchie v. Putnam, 13 Wend. 524; Green v. Putnam, 1 Barb. 500 ; Scott v. Howard, 3 id., 319. Where a municipal corporation is authorized by an act of the legislature to take lands for the public use, making compensation in the manner prescribed by the act to the respective owners and persons entitled to or interested in the same, upon which being done, the corporation was to become seized in fee simple abso- lute of the lands so taken ; and in proceeding under the act, com- pensation for a portion of the lands, whereof L. M. was seized in fee, was awarded and paid to him without any notice being taken of the inchoate right of dower of his wife, K. M., therein, or award made to her therefor ; it was held, that her interest, for the pur- pose of compensation under the act, was not to be considered as distinct from that of her husband, so as to require a separate estimation, and that he was for that purpose to be deemed the entire owner of the estate; and hence she was not entitled to dower therein after the death of her husband ; Moore v. The City of New York, 4 Sandf. 456. “The question which is here pre- sented is, whether a wife has such an interest in the premises owned by her husband, while her right of dower is inchoate, as _ can not be divested by this act of the legislature and the proceed- ings under it. Reference has been made on the part of the respondents, to the case of Lawrence v. Miller, (1 Sand. 8. C. Rep. 516), which came originally before this court, and in which the court of appeals subsequently reversed our decision. The reversal did not affect the principles which governed us in that case, so far as they are applicable 1o the present. We then held that'the wife’s right of dower was merely inchoate during the life of the husband, and that she had no vested or certain interest in his lands. The right being merely an incident to the marriage relation, it seems to us that while this right is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its opera- tion is in effect to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abol- ish it. The power of the state to take private property for public uses results from its right of eminent domain, and that power is not restricted except by the constitutional provision, that just com- pensation shall he made to the owner. In this case, the husband was deemed to be the owner of the entire estate in the land, and’ the inchoate right of the wife was not considered by the commis- sioners, and we think justly so, as an interest distinct from that of her husband, as the subject of estimate as to its value, separate from his. Indeed, the value of her interest, such as it was, would seem to be scarcely capable of being estimated as a separate in- terest. We see no reason to doubt, that the commissioners were OF DOWER. 265 right in considering the entire estate in these lands as vested in the husband, and that he having been paid the full value of them. the corporation, by force of the act, became seized of the lands in fee simple absolute, discharged of any claim of dower of the wife therein.” Jb. 461. per Oakley, ©. J., delivering the judgment. of the court. If a widow be in possession, the want of a mere formal assign- ment of dower was not considered material in equity, and her interest might have been reached by a creditors’ bill; Tompkins v. Fonda, 4 Paige, 448. Where the grantor of an estate on condition enters for condi- tion broken, the dower of the wife of the grantce falls with the estate of her husband. Thus where, by the terms of a lease for the life of a grantor, the estate demised was conditional, liable to be defeated, and subject to a re-entry, by the non-payment of rent, the condition having been broken, and the lessor having re-enter- ed for that cause ; Held, that the lessor became re-invested with his entire original estate, free from any incumbrace of dower in behalf of the widow of the lessee: Beardslee v. Beardslec, 5 Barb. 324. The purchaser of premises sold under a decree for partition took the same subject to the right of dower of the wife of one of the tenants in common, unless the wife was made a party to the suit; but where an actual partition had been made, the wife’s dower attached npon the portion of the premises alloted to her husband ; Wilkinson v. Parish, 3 Paige, 653. A voluntary partition by deed, made by the husbands without their wives, being equal and followed by possession in severalty, will restrict the dower rights, in equity, 10 the several parcels : Totten v. Stuyvesant, 3 Edw. 500. Though land is bought and held by partners as personally and in equity goes to the survivor, the widow of » deceased partner is entitled to dower ; and where a conveyance was to two part- ners as tenants in common. though their interest in the purehase . money was unequal, it was held, that the widow of one of the partners waa entitled to dower in a moiety ; Smith v. Jackson, 2 Edw. 28. One purchasing the shares of some of the tenants in common, pending a partition suit, becomes seized of such shares; and if he dic. and the decree in the suit direct the land to be sold, his widow will be entitled to dower in the procceds arising from his shares: Church v. Church, 3 Sandf. Ch. 434. A purchaser under a decree of the court, whose purchase has been comfrmed and who has paid a part of the purchase money, becomes equitably seized pro tanto, and his wife acquires in equity an inchoate right of dower in the land, subject to the payment of the residue of the purchase money : [4. k 266 REAL PROPERTY LAWS. Where an administratrix sold real estate of the decedent under -a surrogate’s order, in which estate she was entitled to dower, and in the terms of the sale it was stated that a clear and satisfactory title would be given, and the purchaser accordingly paid the full value of the premises, under a belief that he was obtaining a per. fect title; Held, that the silence of the administratrix as to her -claim of dower. was such a fraud on the purchaser as to preclude her from afterwards setting it up against him or ‘his assigns ; Dou- grey Vv. Topping. 4 Paige, 94. Where the husband in his life-time sold several lots of land in which his wife had a contingent right of dower, and conveyed such lots with warrauty, and afterwards died seized of large real and personal estate, which he devised in‘trust for his daughter ; and the trustce after the death of the testator offered to assign to the widow her dower out of the estate of which the husband died seized, as well for that estate as for the lands conveyed by the husband with warranty, which offer was refused by the widow who commenced ejectment suits against the several purchasers for the purpose of recovering licr dower in each lot separately ; Held, that the widow was in equity bound to accept an assignment of the whole dower out of the estate of which her husband died ‘seized, and which was ultimately liable to sustain the whole charge -of her dower right in the lands conveyed with warranty ; Wood v. Keyes, 6 Paige, 478. The widow of a trustee is not dowable of the trust estate ; ‘Cooper v. Whitney, 3 Hill, 95. Where A. bequeathed to B. all his real und personal property, in trust to sell and dispose of the same, and out of the proceeds to pay debts and legacies, the residue to belong to B.; but the will contained no provision entitling the latter to the actual pos- ‘session of the land, or authorizing him to receive the rents and profits. Held, that under the revised statutes B. took no estate whatever in the land and, consequently, that his widow was not -entitled to dower ; Germond v Jones, 2 Hill, 569. The right of B. under the will in question was a mere power in trust, and on A.’s death the land descended to the heirs, subject to the exccution ‘of the power; 1 R. S. 729, sec. 68 (56), ante, p. 180. There can be no dower in the right and privilege of taking and useing for hydraulic purposes a portion of the surplus waters of the Erie canal, under a grant from the canal commissioners ; Kingman y. Sparrow, 12 Barb. 201. Nor will a permission by the commis- -sioners to erect buildings on the Niagara river, and upon the dam at Black Rock, create an estate in the lessees of the privilege to use water, of which the widow of one of them can endowed ; Ib. “This case was reversed in 1 Comst. 242, but on a point different ‘from that of the right to dower. Dower can not be had of estates pur autre vie ; Gillis v. Brinen, < nenser OF DOWER. 267 5 Cow. 388. By 1 R. L. 365, sec. 4, such estates were made de- viseable, and, if not devised, went to the executor or administra- tor as part of the personal estate. By 1 R.S. 722, sec. 6, ante p. 62, estates for the life of a third person are declared to be free- holds only during the life of the grantee or devisee, and to be chattles real after his death. They are not, therefore, “estates of inheritance,” out. of which « widow can be endowed. The same evidence of seizin which would entitle the heir to re- cover in ejectment, will sustain an action for dower ; Jackson v. Waltermire, 5 Cow. 299. Actual possession of the husband, or his receipt of rent, is prima facie evidence of seizin, in an action for dower. And where it appeared by parol, that the husband bought a farm, paying something towards it, taking possession, and selling to another, who succeeded him in the possession ; Held, that this was prima ‘facie évidence of the husband’s seizin, and suf- ficient to entitle his Bl to recover dawer though no deeds were shown ; Jackson v. Waltermire. Wincor a party as a tenant for Life, or by the curtesy, or in dower, is entitled to the annual interest or Income paid into court _ and invested in permanent securities, such party shall be charged. with the expeusc of investing such sum and of receiving or paying over the interest or income thereof; but if such party is willing, and consents to accept a gross sum in leu of such annual interest or income for life, the same shall be estimated according to the value of an annuity of six per cent. on the pricipal sum during the probable life of such person, according to the Portsmouth or Northampton tables. Rule 76 (80) adopted by the supreme court under the Code of Procedure. As to the mode of computing the present value of a wife’s inchoate or contingent. right of dower ; see Jackson v. Edwards, 7 Paige, 408. $2. Widows of aliens—The widow of any alien, who, at the time of his death, shall be entitled by law to hold any real estate, if she be an inhabitant of this state, at the time of such death, shall be entitled to dower, of such estate, in the same manner as if such alien had been # ' native citizen. New but conformable to the decision of the.supreme court in L Cow. p..89, which was confirmed by the court for the correction of errors, in 5 Cow. 713. Rev. WV. In Davis v. Darrow, 12 Wend. 65, it was held, that the widow of au alien was entitled to dower in lands against a party whose title is derived from her husband, although the husband, at -the time he took a conveyance of the lands, was not entitled to take and hold real estate, nor was the conveyance subsequently affirm- | ~ 268 REAL PROPERTY LAWS. ed by any statute. This decision rested on the principle, that the party, claiming from the husband, was estopped from denying the busband’s seizin. See, ante p. 38, et seq. § 3. Dower in case of exchange of lands.—If a husband, seized of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but shall make her election, to be endowed of the lands given, or of those taken, in exchange; and if such elec- tion be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange, with- in one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange. First clause declaratory of the existing law ; 1 Inst. 31, b. 1- Cruise, Title 6, ch. 3, sec. 14; latter clause new. Rev. . The word “ exchange,” as used in the above scction, is to re- ceive the same interpretation which is applied to it, when used at common law in reference to that species of conveyance—that is— a mutual grant of equal interests, equal not in value, but in quan- tity ; as fee simple for fee simple, a lease for twenty years for a lease for twenty years, and the like; Wilcor v. Rendall, 7 Barb. 633. Accordingly, a transfer of a mere equitable interest in seventy- five acres of land, derived under a lease in perpetuity, for eleven acres of land and $700 in other property, will not constitute a legal exchange ; 1. § 4. Lands mortguyed before marriage.—Whete a per- son seized of an estate of inheritance in lands, shall have executed «1 mortgage of such estate, before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged, as against every person except the mortgager and those claiming under him. By the law as it existed previously io the enactment of the revised statutcs,-a widow was entitled to her dower in lands mortgaged before marriage (1 J. Rep. 319), except as against the mortgagee ; Rev. V. The above section is not applicable to the case of a mortgage given for the purchase money ; per Barculo, J., in Cunningham v. Knight, 1 Barb. 399. ‘ : See, further. Denfon v. Nanny, 8 Barb. 618, and ante, pp. 259-60. OF DOWER. 269 § 5. Jn lands mortgaged for purchase money.— Where a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to se- cure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled | to her dower as against: all other persons. Conformable to Stow v. Tifft, 15 Jobns. R. 458, in which the court were divided ; and 5 Cow. 316. Rev. WV. Where a deed is given, and « mortgage upon the premises is executed at the same time to secure the whole or a part of the unpaid purchase moncy, it is considered as one transaction only, so far as is necessary to protect the rights of the mortgagee. Its effect therefore in relation to previous judgments against the grantee, or mortgagor, is the same as if such previous Judgments had been recovered subsequently to the giving of the mortgage. And its effect upon the wife’s right of dower in the mortgaged premises; is the same as if the mortgage had been given by. the husband before the marriage. Per Weheorth, C., in Bell v. The. Mayor of New York, 10 Paige, 67. Nevertheless, where after marriage the husband buys land and gives a mortgage for the purchase money, in which the wife does not join, if the mortgagee enter for condition broken, or by fore- closure against the heirs, the widow is not barred of her dower, but may redeem ; Bell v. The May yor of New York, 10 Paige, 49. If the mortgage be given for the purchase money by the hus- band alone; the wife is bound to contribute to redeem her dower ; and, if the debt be not called for, must keep down one-third of | the interest ; and it is the same in the case of a mortgage exe- cuted by the husband before marriage, or in which she joined after marriage ; House v. House, 10 Paige, 158. But where the husband mortgages property, not for the pur- chase money, after his wife has acquired an inchoate right of dower therein, and she does not join in such mortgage, the heirs- at-law or devisees of her deceased husband must pay off the whole of the incumbrance themselves ; 1b. A mortgage given by husband und wife to secure the purchase money of “the mortgaged premises can not, after having been sat- isfied and discharged “of record, be set up by the assignee of the husband as a bar to his widow’s right of dower : Runyan v. Stew- art, 12 Barb. 537. P. E. R., the plaintiff’s husband, during coverturé, conveyed lands to B., ‘subject to a mortgage thereon executed by ~P. E.R. and his wife to G., the former owner, to secure the purchase 270 REAL PROPERTY LAWS. money, $1,600. At the time of the conveyance P. EH. R. had paid $400 on the mortgage. B. subsequently paid $1,200, the balance of the mortgage debt, and the mortgage was satisfied and discharged of record. The defendant was in possession of the premises as a purchaser from a person deriving title from B. Held, that the plaintiff was entitled to dower in the premises ; Tb., Johnson, J., dissenting. Where a mortgage for the purchase money is executed by the purchaser to a third person, with the assent of the seller, the widow of the purchaser will take the dower subject to the mort- gage. Thus, H.,on the eve of buying a farm from C., agreed with his mother, M., for the loan to him of the price which he was to pay to C.,and to give her a mortgage on the farm for security. C. conveyed the farm to H., who on the same day re- -~ ceived the amount of the purchase money from his mother, paid it to C., and executed to M. his bond and mortgage on the farm therefor. It was held, that the mortgage was given for the pur- chase money of the land, and that the widow of H. was dowable oe equity of redemption only ; Kitéle v. Van Dyck, 1 Sandf. . 16. § 6. dn such case, extent of claim to surplus proceeds of sale.— Where, in such case, the mortgagee, or those claim- ing under him, shall, after the death of the husband of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any surplus shall remain, after payment of the moneys due on such mortgage and the costs and charges of the sale, such widow shall nevertheless be entitled to the interest or in- come of one-third part of such surplus, for her life, as her dower. This was the rule in chancery, when a sale was made under a decree, but not when a sale was made under a power of sale, though it is apparent that the equity is the same. Rev. V. Where a wife joins with her husband in executing a mortgage upon his land, with the usual power of sale in such mortgage, and the surplus is, in the event of a sale, expressly reserved to be paid to the mortgagors, the wife has a right to have the residuum of the subject mortgaged, not required to satisfy the mortgage debt —whether it exists in lands unsold or in the proceeds of land sold under the decree of foreclosure—so appropriated as to secure to her her dower, in case she survive her husband; Denton v- Nanny, 8 Barb.'618. : ' And where there are surplus moneys in court arising [rom the 4 ; OF DOWER. 271 sale of .the mortgaged premises, she is entitled, as against judg- ment creditors, to have one-third of the amount, invested for her benefit, and kept invested during the joint lives of herself and her husband, and during her own life in case of her surviving her hus- band, as and. for her dower in such surplus moneys; Id. A purchaser under a decree of foreclosure and sale in equity, in the life-time of the husband, where the wife is not made a party, takes the estate subject to her equity of redemption. And in order to bar her right to redeem, she is a necessary party to the foreclosure suit; 1. ‘ Widow of mortgagees.—A. widow shall not be en- dowed of lands conveyed to her husband by way of mort- gage, unless he acquire an absolute estate therein. during the marriage. Conformable to the principles of the cases in 4 J. Rep. 41: 14 id., 534; 15 id., 319. Rev. WV § 8. When dower forfeited.—In case of divorce, dissolv- ing the marriage contract, for the misconduct of the wife, she shall not be endowed. 1 R. L. 58, see. 7, and 2 R. L. 196, see. 8. Rev. MV. Since the revision of the laws in 1830, «. widow is entitled to dower in lands whereof her husband was