i!iii!ii!iiliiliii m liiliiili! ■iiiiii iHlil LAW 1 119 FULTON ST. I Nt« YORK. z> ) CORNELL UNIVERSITY LIBRARY 3 1924 064 749 322 DATE DUE '^t^ 1^^^ *-^l ^ r^^^^ OAYLORD ruiNTKOINU.S.A. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924064749322 HISTORY OP THE Law of Real Property IN NEW YORK AN ESSAY INTRODUCTORY TO THE STUDY OF THE N. Y. REVISED STATUTES (WITH APPENDICES) BY ROBERT LUDLOW FOWLER COUNSELLOR AT LAW NEW YORK BAKER, VOORHIS AND COMPANY 1895 12 P/5^f. <: 3 COPYHIQHT, 1895, BAKER, VOORHIS AND COMPANY. PEEFAOE. The casual reader of this volume may regard it as an undue emphasis of certain trite historical facts of no great significance in the practical application of the law of our own day. A perusal of the recent case of De Lancey «. Piepgras, 138 N. Y. 26, , will tend to dispel this impres- sion, for that case shows how complete the nexus really is between the old law and the new. It is quite true, that the old law was perhaps unnecessary to the actual solution of De Lancey «. Piepgras, but it nevertheless received consid- eration there, and for the first time a point of Province law involved was determined in New York. An attempt to trace the legal institutions of the Eng- land of the seventeenth century to their cis-Atlantic abode is followed by a more practical theme — the Revised Stat- utes—one of the most useful applications of the old com- mon law to the institutions of America ever yet made. These celebrated statutes serve as the basis of the pres- ent law of real property, and their exposition by the great courts of this State contributes a body of law of in- finite value to the particular jurisprudence of America. In many instances cases will be found to be cited because they are deemed illustrative of the historical phase of the subject under consideration ; but in the majority of in- stances only because they are decisive of the text. A multiplication of authorities has not been aimed at, as it always has seemed to the writer that there can be but one decision by a court of last resort, under the great fundamental doctrine of our jurisprudence, stare decisis et non quieta movere. New Yokk, March 27th, 1895. TABLE OF 0O]S"TEl!fTS. PAQS Preface v Table of Conpents vii-x Table of Cases xi-xxiii Table of Statutes xxv-xxxvi Introductobt BEMARSa 1-2 CHAPTER I. EUROPEAK LAWS IK ITEW YORK. Claims to Territory — The Law of Real Property in New Netherland — Dutch West India Company — Dutch Patroons — The English Preten- sions — Capitulation of New Netherland — King Charles' Grant — Duke of York's Patents — Proprietary Government — The " Duke's Laws" — Socage Tenure— Treaty of Westminster— Duke of York's Second Pat- ent—First Assemblies— Wills— King James II.— Succession to the Crown— The " Resolution" of 1691— England's Title to New York- Introduction of the Laws of England — Remedies and Procedure 3-34 CHAPTER II. THE SOCAGE TEKURE IN NEW TORE. English Feudalism — Subversion of Feudalism — Duke of York 's Patents • — Early Manors in New York — Manors under the Crown — Severance of Manor Lands — Empty Nature of New York Seigniories — Legality of the Seigniories — Non-Manorial Lands — Quit-Rents — 12 Car. II., c. 24 — Tenure in capite — Incidents of Socage Tenure — New York Grants — Fee-Farm — De Lancey v. Piepgras— The King's Quit-Rents— Collection viii TABLE OF CONTENTS. of Quit-Rents— Cessavit per biennium—De Lancey «. Piepgras— Quarter Sales— Vacating Crown Grants— Koyal Mines— Tide Waters 2£f-49 CHAPTEK III. LOCAL INCIDBITTS. New York Chancery — Coke's Commentaries— Blackstone's Commentaries — English Statutes— Common Law— Customs of New York — Record of Deeds— Power of the Assembly—" Resolution" of 1691— Legal Effect of Certain Dutch Words — Province Laws— Revisions— Aliens— Natu- ralization— Survivals of Dutch Laws— Dutch Titles— Instances of Sur- vivals—Limitations on Survivals— Influence of Dutch Laws— English Common Law— Independence , 50-71 CHAPTER lY. THE EFFECTS OF INDEPENDENCE. Law of Descents — EfEect of Dismemberment — Forfeited Estates Acts — Resident Landholders — Republican Revision — English Statutes Revised — Fundamental Law of the State — The "Act Concerning Tenures" — Alodial Lands— Lords of the Manor— Constitution of 1777— Manors under State Law— Revision — Record of Deeds — Statute of Enrolments — Conveyancing — Authority of English Decisions — Subversion of Feu- dal Notions , 72-90 CHAPTER V. THE KEVISBD STATUTES. Arrangement by Chapters — Conditions before Revision — Mr. Humphreys' Plan of Reform — Abolition of Entails — Limitations before the Revision — The Revisers' " Notes"— All Lands Alodial — Definition of Alodial Lands— Escheats Preserved — Eminent Domain — Disability of Aliens Preserved — Colonial Statutes Repealed — Common Law of the State- Supremacy of the Judiciary — Sources of the Common Law — Law of Real Property 91-107 CHAPTER VI. LEGAL ESTATES UNDER THE REVISED STATUTES. Definition of Estate — All Lands Alodial — Quantity of ^states — Future Estates— Reforms— New Rule against Perpetuities— Valid Accumula- TABLE OF CONTENTS. IX PASE tions — Leasehold Estates — Statute of Frauds — Perpetual Rents — Leases of Agricultural Lands — Reservations and Conditions — Mortgages — Dower — Jointures — Annulment of Marriage — Remedy for Withhold- ing Dowei^Curtesy—" Married Woman's" Acts— New Rules of Con- struction , 108-138 CHAPTER VII. USES AND TRUSTS UNDER THE REVISED STATUTES. History of Equitable Jurisdiction — Provincial Court of Chancery — State Court of Chancery — Its Jurisdiction Interpreted — Trusts — Classifica- tion of Trusts — Definition of a Trust — Revised Statutes — Charitable Uses — Cy pres Doctrine — Superstitious Use — Reforms in the Law of Trusts — ^The " Express Trusts" — Trust Purposes — Trust " to Receive and Pay Over"— Cutting v. Cutting— Effect of the Fifty-fifth Section — Estate of the Trustee— Devolution of Trust Estates— Perpetuities by Means of Trusts — Reforms Contemplated by Revision 129-150 CHAPTER VIII. POWERS UNDER THE REVISED STATUTES. Powers at Common Law — Statutory Definition of a Power — Statutory Classification — Absolute Power of Disposition — Beneficial Power — Powers in Trust — Devolution of Powers in Trust — Illusory Appoint- ments Regulated — ^Power of Revocation — Power, How Created — Exe- cution of Powers — Statutory Directions — Defective Execution — Perpetuities — Powers Irrevocable — Extinction and Suspension of Powers 151-167 CHAPTER IX. CONVETANOING UNDER THE REVISED STATUTES. Deed of Grant — Old Forms Retained — Requisites of a " Grant" — No Form Prescribed — What Passes by Grant — Deed Poll — Covenants — Interpre- tation—The Recording Acts 168-177 APPENDIX NO. I. PATENT TO THE DUKE OF YORK. Patent from King Charles II. to his Brother, the Duke of York, after- ward James II., with Note on the Second Patent from the same to the same 179-184 X TABLE OF CONTENTS. PASS APPENDIX NO. II. ALIENS. Of the Persons Capable of Holding and Conveying Lands — Citizens of the United States, who are — Expatriation — ^Disabilities of Aliens — Trusts for Aliens— Treaties 186-197 APPENDIX NO. III. INDIANS. Their Status, Ancient and Modern — Indian Codes 199-200 TABLE OF OASES. PAOI Abendroth v. N. Y. El. E. R. Co., 122 N. T. 1 ; 33 St. R. 475 67 Adair «. Lott, 3 Hill, 182 126 All Yup, Be, 5 Sawyer, 155 188 Airharti). Massieu, 98 U. S. 491 76 Albany Fire Ins. Co. ■». Bay, 4 N. Y. 1 17, 56, 162 Allen V. De Witt, 3 N. Y. 276 153, 157 American Home Miss. Society v. Wadhams, 10 Barb. 597 161 Ames v. Blunt, 2 Paige, 94 132, 134 Amoryv. Lord, 9 K. Y. 403 95 Anderson v. Jackson, 16 Johns. 382 95, 115 Andersons. Mather, 44 N. Y. 249 147, 148 Anstice v. Brown, 6 Paige, 448 196 Atlantic Dock Co. «. Leavitt, 54 N. Y. 35 174 Att'y Gen'l of Ontario v. Mercer, 8 L. R. Appeal Cases, 767. .32, 33, 38, 99, 116 Att'y Gen'l «. Mayor of Coventry, 2 Vern. 713 46 Austin®. Oakes, 48 Hun, 492 165 B. Banker's Case, The, Skinner, 601 19 Banks v. Walker, 3 Barb. Ch. 438 190 Barbers. Cary, 11 N. Y. 397 128, 153, 154, 163 Bartow v. Draper, 5 Duer, 130 8, 66, 68 Bascom v. Albertson, 34 K Y. 584 138 Beechem. Wetherby, 95 U. S. 517 6 Beekmans. Bonsor, 23 N. Y. 298 138, 191, 196 Belmont v. O'Brien, 13 N. Y. 394.. .142, 146, 148, 149, 151, 153, 154, 157, 158 Benedict v. Seymour, 11 How. Pr. 176 126 Bennett ». Culver, 97 N. Y. 250 173 Bertles«. Noonan, 92 N. Y. 152 174 Billings®. Baker, 28 Barb. 343 136 Blackmans. Riley, 138 N. Y. 318 58 Blankard v. Galdy, Salk. 411 65 BlewittD. Boorum, 142 N. Y. 357 169 Blight®. Rochester, 7 Wheaton, 535 76, 77 Boehm ®. Engle, 1 Dallas, 15 54 XU TABLE OF CASES. PASE Bogardus «. Trinity Church, 4 Sandf. Ch. 633 ; 4 Pai. 178 ; 15 Wend. Ill 13, 19, 33, 34, 35,47,48, 67, 107 Boroughe's Case, 4 Rep. 72 36 Boyd V. Thayer, 143 U. S. 135 187, 188 BradtD. Church, HON. T. 537 119, 130 BramhallB. Hall, 3 Eden. 320 164 BranaghB. Smith, 46 Fed. R. 517 195 Brick's Estate, 15 Abb. Pr. 13 69 Bridger?). Pierson, 45 N. Y. 601 173 Bridges V. Bridges, 3 Ves. 120 136 Brookhaveno. Strong, 60 N. T. 56 21, 35, 59 Brown v. Brown, 31 How. Pr. 481 ._ 125 Brown v. Sprague, 5 Denio, 545 76 Brudenell v. Elwes, 1 East. 452 114 Bruner v. Meigs, 64 N. Y. 506 159 Bucklin ». Bucklin, 1 Abb. Ct. Appeal Decis. 242 169 Buel«. Southwick, 70 N. Y. 581 115 Bull o. FoUett, 5 Cow. 170 175 Burgess v. Wheate, 1 Eden. 177 ; 1 "W. Bl. 123 38, 101, 134, 150 Burke v. Valentine, 5 Abb. Pr. N. S. 164 ; 52 Barb. 413 ; affi'd 6 Alb. L. J. 167 137 BurrillB. Boardman, 43 N. Y. 354 138 BurtisB. Burtis, 1 Hopkins Ch. 563 17, 21, 124 Burton v. Burton, 1 Keyes, 359 188 Butcher*. Butcher, 9 Ves. 382 159 ButtzB. North. Pac. R. R., 119 U. S. 55 3 Byrnes v. StUwell, 103 N. Y. 453 156 c. Cadell e. Palmer, Tudor's Leading Cases on Real Property and Conv., note, p. 359 ; 1 Clark & Finnelly, 372 113 Calvin's Case, 7 Reports, 12 19 Camille, Be, 6 Sawyer, 541 188 Campbell v. Hall, 30 State Trials, 239 ; Cowp. 304 53, 66 Campbell v. Morgan, 32 N. Y. Supp. 1001 172 Canal Appraisers «. People, 17 Wend. 571 15, 16, 32, 24, 65, 67, 70, 71 Canal Commissioners ». People, 5 Wend. 423 15, 16, 23, 24, 65, 70 Case of the County Palatine of Wexfoid, Davies' Report (Irish), 159 11, 12, 38 Case of the Mines, Plowden, 336 48 Catlin v. Jackson, 8 Johns. 530 43, 56 Chandlers. Edson, 9 Johns. 368 3 Chapman's Case, 1 Dall. 53 75^ 76 Charles Green's Son v. Salas, 31 Fed. R. 106 187, 188, 189 Chauncey II. Arnold, 24 N. Y. 330 .' 169 Cherokee Nation v. Georgia, 5 Peters, 1 199 Chester ». Dickinson, 54 N. Y. 1 141 Chetwode Bart v. Crew, Willes, 614 91 TABLE OF CASES. XIH Cholmley's Case, 3 Rep. 50 114 Chudleigh's Case, 1 Rep. ISO 96 Church V. Brown, 15 Vea. 258 175 Clarke. Clark, 34 Barb. 581 126 Coleman «. Beach, 97 N. Y. 545 154, 158, 163 Coleman v. Manhattan Beach Im. Co., 94 N. Y. 329 173 Comitis V. Parkerson, 56 Fed. R. 556 , 187, 189 donkey v. Hart, 14 N. Y. 33 130 Conolly V. Smith, 21 Wend. 59 190 Constantine «. Van Winkle, 10 N. Y. 423 ; 6 Hill, 177 17, 31, 56, 59 Cooke «. Piatt, 98 N. Y. 35 143, 157, 159 Cook «. Barr, 44 N. Y. 156 160 Corfleld®. Coryell, 4 Wash. Cir. Ct. R. 371 16 Cornell v. Lamb, 3 Cow. 653 38, 80, 83, 85, 89 Corning v. McCuUough, 1 K. Y. 47 77 Corwin v. Corwin, 6 N. Y. 343 173 Coster V. Lorillard, 14 Wend. 365 113, 140, 144, 148, 153 Cottman ®. Grace, 113 N. Y. 299 139 Countryman v. Deck, 13 Abb. N. C. 110 175 Coventry v. Coventry, Gilb. 160 164 Craig V. Leslie, 3 Wheat. 563 189, 196 Craig V. Hone, 3 Edw. Ch. 554 144, 149 Crain v. Wright, 114 N. Y. 307 138 Crarye. Goodman, 33 N. Y. 170 176 Crills. City of Rome, 47 How. Pr. 398 35 Crooke «. County of Kings, 97 N.Y. 421. .146, 147, 148, 149, 150, 153, 154, 157 Cruikshank ». Home for the Friendless, 113 N. Y. 337 103, 114 Cumberland v. Codrington, 3 Johns. Ch. 229 89 Cunningham v. Freeborn, 11 Wend. 240 143, 171, 172 Cutting V. Cutting, 86 N. Y. 523 71, 145, 152, 154, 156 D. Danziger v. Boyd, 130 N. Y. 638 176 DawsB. Pindar, 1 Preem. 175; 3Mod. 45; 3 Keb. 36 38 Dawson ®. Godfrey, 4 Cranch, 331 77 Delaeherois v. Delacherois, 11 Ho. L. Cas. 63 39, 30, 31, 33 De Lancey ■». Piepgras, 138 N. Y. 36 13, 29, 30, 33, 35, 36, 39, 44, 45, 61 Delaney v. McCormack, 88 N. Y. 174 146, 148, 153, 154, 157, 158 Dempsey D. Tylee, 3 Duer, 73 160, 166 Denton ■!). Jackson, 3 Johns. Ch. 330 6, 14, 66 De Peyster ■». Michael, 6 N. Y. 467 39, 33, 34, 36, 73, 83 De Ruyter n. Trustees of St. Peter's Church, 3 Barb. Ch. 119 67, 106 Diefendorf u. Diefendorf, 133 N. Y. 100 169 Dillayeu. Greenough, 45 N. Y. 438 141, 148 Dodge, Matter of, 105 K. Y. 585 Ill Doei). THorley, 10 East. 437 163 Donovan I!. De Mark, 78 N. Y. 344 148 Dorland u. Dorland, 3 Barb. 63 161 XIV TABLE OF CASES. Downing v. Marshall, 23 N. Y. 366 186, 138, 141, 142, 143, 146, 154, 191 Duchy de Lancaster, Plowden, 212 19 Duke of Cumberland v. Graves, 7 N. T. 305 193, 197 Dunham v. Dey, 15 Johns. 555 87 Dunham u. ■Williams, 37 N. Y. 351 6, 8, 22, 34, 65, 66, 67 Dunscomb v. Dunscomb, 1 Johns. Ch. 508 : 136 Dusenburry v. Dawson, 9 Hun, 511 195 Dutton V, Howell, Shower's Parliamentary Cases, 24 33, 52, 69 E. East Hartford 1). E. H. Bridge Co., 10 How. 511 74 Elk V. Wilkins, 112 U. S. 94 188, 199, 200 Ettenheimer v. Hefiernan, 66 Barb. 874 195 Everitt v. Everitt, 48 N. Y. 318 140, 149, 158 Eysaman v. Eysaman, 34 Hun, 430 137, 141, 143, 160, 170 F. Fairchild v. Pairchild, 64 N. Y. 471 141 Farmers' Loan & Trust Co. v. Carroll, 5 Barb. 613 146, 154, 159 Fenton v. Reed, 4 Johns. 53 88 Fletcher v. Peck, 6 Cranch. 87 6 Flower v. Hartopp, 6 Beav. 476 45 Poose V. "Whitmore, 82 N. Y. 405 148, 149 Poote V. Bryant, 47 N. Y. 544 135, 141 Forrest v. Forrest, 35 N. Y. 501 .124 Posdlck V. Cornell, 1 Johns. 440 95 Fosdick V. Town of Hempstead, 135 N. Y. 581 139 Fowler v. Depau, 26 Barb. 224 114 Freeborn v. Wagner, 2 Abb. Ct. Appeal Decis. 175 1S8, 137, 155 Freeman v. Fairlie, 1 Moo. Ind. App. 824 23 French v. Carhart, 1 N. Y. 96 173 Gardner, Matter of, 140 N. Y. 122 163 Garfield v. Hatmaker, 15 N. Y. 475 140 Geofroy u Riggs, 133 U. S. 258 ,,_ 197 Gilbert v. Gilbert, 2 Abb. Appeal Dec. 256 140 Gilmanu. McArdle, 99 N. Y. 451 ].] 140 Gilman v. Redington, 24 N. Y. 9 136, 140, 142, 144, 146, 150 Gilmore v. Ham, 142 N. Y. 1 ' '147 Glover v. Lane, 3 T. R. 445 ][[[[ 29 Golden v. Prince, 3 Wash. C. Ct. 314 .'.'.'. 197 Goodell V. Jackson, 30 Johns. 693 85 199 300 Goodrich V. Russell, 43 N. Y. 177 63, 98, 191^ I94' 195 Greasonj). Keteltas, 17 N. Y. 491 '....' 143 TABLE OF CASES. XV FABE Greenland t). Waddell, 116 N. Y. 234 158 Greenwood v. Marvin, 111 N. Y. 423 141 Griffin v. Shepard, 134 N. Y. 70 lOS Griffith V. Prltchard, 5 B, & Ad. 765 191 Guillotte V. New Orleans, 12 La. 432 69 H. Habergham v. Vincent, 3 Ves. 304 163 Hall V. Campbell, Cowper, 213 70 Hall U.Hall, 81 N. Y. 130 191, 194 Hallie v. Wylie, 8 Johns. 44 175 Halsey u. Beer, 53 Hun, 866 187 Harris u. Clark, 7 N. Y. 343 115, 145 Harrison v. Harrison, 36 N. Y. 548 140, 147 Harvey v. Brisbin, 50 Hun, 876 159 Hasbrouck v. Bunce, 63 N. Y. 475 89 Hatfield u. Sneden, 54 N. Y. 380 137 Hattonu. Waddy, 3 Jones, Ir., 548 35, 39 Hauenstein u. Lynham, 100 U. S. 488 187, 197 Hawley v. James, 5 Paige, 318 ; 16 Wend. 61 Ill, 148 Hawley v. Ross, 7 Paige, 103 148 Hay V. Earl of Coventry, 3 T. R. 83 114 Heermans v. Robertson, 64 N. Y. 333 142, 143, 146, 148 Hempstead v. Hempstead, 3 Wend. 109 ; 1 Hopk. Ch. 288 66 Henderson!). Henderson, 118 N. Y. 1 143, 148, 149 Heney v. The Brooklyn Benevolent Society, 39 N. Y. 333 194 Hervey v. Hervey, 1 Atk. 561 164 Hetzelu. Barber, 69 N. Y. 1 154, 157, 159 Hill V. Ressegein, 17 Barb. 163 176 Hineu. N. Y. El. R. R. Co.,7N. Y. Supp. 464 8,34, 65 Hitchcock V. Harrington, 6 Johns. 290 121 Holden v. Joy, 17 Wall. 311 3, 6 Holland v. Alcock, 108 N. Y. 313 136, 137, 138, 139, 140 Holmes u. Mead, 52 N. Y. 883 138 Hood V. Inman, 4 Johns. Ch. 437 89 House u. Jackson, SON. Y. 161 125 Howard u. Moot, 64 N. Y. 363 3, 193 Hubbard «. Gilbert, 25 Hun, 596 161 Humbert v. Trinity Church, 24 Wend. 587 15, 16, 17, 21, 32, 24, 67 Hume u. Randall, 141 N. Y. 499 155 Hunt V. Johnson, 19 N. Y. 379 57 Hunt V. Johnson, 44 N. Y. 37 174 Hurst «. Hurst, 2 Wash. Cir. Ct. 69 87 Huttonu. Benkard, 92 N. Y. 295 152, 165 I. Inglis V. Trustees Sailors' S. H., 3 Peters, 99 76 XVI TABLE OF CASES. J. PAGB Jackson i). Beach, 1 Johns. Cas. 399 77, 194 Jackson v. Burgott, 10 Johns. 457 87 Jackson v. Blanshan, 8 Johns. 292 95 Jackson v. Chamberlain, 8 "Wend 87 Jackson ». Collins, 11 Johns. 1 43 Jackson «. Demont, 9 Johns. 55 45 Jackson v. Dubois, 4 Johns. 216 57, 87, 121 Jackson v. Davenport, 30 Johns. 587 85, 165 Jackson v. De Lancey, 11 Johns. 365 ; 18 Johns. 536, 537 89, 173 Jackson v. Dunsbagh, 1 Johns. Cas. 91 88 Jackson v. Btz, 5 Cow. 314 85 Jackson v. FitzSimmons, 10 Wend. 9 79, 190 Jackson v. Gilchrist, 15 Johns. 89 17, 21, 24, 55, 56, 65, 89 Jackson v. Green, 7 "Wend. 883 63, 77, 190, 192, 194 Jackson u. Hudson, 3 Johns. 375 6 Jackson v. Hammond, 3 Caine's Cases, 337 18, 24 Jackson v. Hart, 12 Johns. 77 110 Jackson v. HoUoway, 7 Johns. 81 56, 57 Jackson v. Hopkins, 18 Johns. 487 121 Jackson v. Hogeboom, 11 Johns. 163 43, 118 Jackson «. Ingraham, 4 Johns. 163 28, 110 Jackson v. Jackson, 7 Johns. 314 190 Jackson v. Johnson, 5 Cow. 74 126 Jackson v. Lunn, 8 Johns. Cas. 109 73, 76, 85, 189, 190, 191 Jackson v. Laughhead, 3 Johns. 75 121 Jackson v. Mancius, 3 Wend. 357 136 Jackson v. Murray, 7 Johns. 5 13 Jackson «. Meyers, 3 Johns. 388 57, 88 Jackson ■». Rogers, 1 Johnson's Cases, 33 8 Jackson v. Root, 18 Johns. 60 85 Jackson •». Schutz, 18 Johns. 174 33, 86, 88, 77, 81, 82 Jackson «. Sebring, 16 Johns. 515 88 Jackson «. Sellick, 8 Johns. 262 89, 136 Jackson v. Staats, 11 Johns. 887 95 Jackson v. "Van Zandt, 13 Johns. 169 73, 103 Jackson v. White, 30 Johns. 313 74, 75, 76 Jackson v. Willard, 4 Johns. 41 88, 121 Jackson {ex dem. Gilbert) i>. Wood, 7 Johns. 290 8, 199, 200 Jackaon (ex dem. Gouch) b. Wood, 12 Johns. 73 50, 88 Jennings v. Oonboy, 73 N. Y. 280 152, 153, 154, 161 Johnsons. Fleet, 14 Wend. 176 148 Johnson ». M'Intosh, 8 Wheat. 543 3, 23 199 Johnston d. Spicer, 107 N. "X". 185 .'...' 101 Journeymen Cordwainers' Case, Yates' Select Cases, 111 24, 47, 79 Judson V. Wass, 11 Johns. 525 ' 39 TABLE OF OASES. Xvii K. PAGE Kane v. Astor's Ex'rs, 9 N. Y. 113 151 Kelly «. Harrison, 2 Johns. Cas. 29 73_ 74 75 Kelly V. Owen, 7 Wall. 496 187, 188 King V. Bundle, 15 Barb., 139 137 Kinney «. Watts, 14 Wend. 38 I75 Kinnier v. Rogers, 42 N. Y. 531 154, 155, 157^ 158 Kip«. Hirsch, 103 N. Y. 565 .'....147 Kirtzii. Peck, 113 N. Y. 223 172 Kissam v. Dierkes, 49 N. Y. 602 163, 164 Kulls. KuU, 37 Hun, 476 .' 197 li. Lammer«. Stoddard, 103 N. Y. 672 147 Langdon^. Mayor, etc.. City of N. Y., 93 N. Y. 129 46 Lansing v. Goelet, 9 Cow. 346 88, 89 Lauderdale Peerage, Matter of the, 17 Abb. N. C. 439 ; L. R. 10 Appeal Cases, 692 21 Lawrence v. Brown, 5 N. Y. 394 124 Lawrence v. Miller, 2 N. Y. 345 124 Leavitt v. Pell, 35 N. Y. 474 162 Leonard v. Clough, 133 N. Y. 292 170 Lee «. Glover, 8 Cow. 189 200 Leggett V. Dubois, 5 Paige, 114 190, 196 Leggett «. Hunter, 19 N. Y. 445 ; 159 Leggett V. Mutual S. Ins. Co., 53 N. Y. 394 ... 175 Leggett V. Perkins, 2 N. Y. 297 142, 144, 145, 148 Lessees of Levy v. M'Cartee, 6 Peters, 102 ..55, 190, 192 Levy V. Levy, 33 N. Y. 97, 6 Pet. 102 23, 34, 65, 66, 77, 138^ 139 Livingston, In re, 34 N. Y. 555 I47 Loddington v. Kime, 1 Salk. 334 ; 1 Ld. Raym. 203 114 Loeschigk v. Hatfield, 51 N. Y. 660 173 Long Island R. R. Co. ». Conklin, 39 N. Y. 572 168, 170, 173 Look Tin Sing, In re, 31 Fed. R. 905 186, 188 Lossee ®. Ellis, 13 Hun, 635 88 Lott«. WykofE, 1 Barb. 575; 2 N. Y. 355 79, 103, 116 Louisiana St. Bank i>. Orleans Navigation Co., 3 La. 394 69 Lowndes «. Huntington, 153 U. S. 1 12, 30 Ludlam«. Ludlam. 26 N. Y. 356 77, 187, 188, 189 Ludlow 1). Van Ness, 8 Bosw. 178 194, 196. 199 Lubrs V. Eimer, 80 N. Y. 171 79, 187, 190, 195, 196 Lynch D. Clarke, 1 Sandf. Ch. 583 64, 186, 187, 188, 192 M. Magown v. Sinclair, 5 Daly, 63 • 69 Mahler v. Transportation Co., 35 N. Y. 353 13, 16 Xviii TABLE OF CASES. PAGE Manicea Manice, 43 N. T. 303 ., 114, 147, 158 Manier« Phelps, 15 Abb. N. C. 183....; 159 Manning v. Manning, 1 Johns. Ch, 527 89, 133 Martin u. Rector, 118 N. T. 476 130 Martin ». Waddell, 16 Peters, 367 .. 3, 9, 10, 11, 12, 16, 24, 28, 35, 199 Marvin®. Smith, 46 N. Y. 571 166 Marx V. McGlynn, 88 K Y. 357 191, 196 Mayor, etc., v. Hart, 95 N. Y. 443 67, 70 Mayor, etc., New York t>. Mabie, 13 N. Y. 151 98, 175 Mayor, etc., v. Stuyvesant, 17 N. Y. 34 153, 158 McCarthy v. Marsh, 5 N. Y. 263 188, 198 McCartney v. Bostwick, 33 N. Y. 53 133, 134, 140 McGregor ». Comstock, 3 N. Y. 408 190 McLean 0. Swanton, 13 N. Y. 535 ; 180, 198 Meakings «. Cromwell, 5 N. Y. 136 159, 196 Medcef Eden's Case, 30 Johns. 483 73, 79, 82 Merry ». Hallett, 2 Cow. 497 98 Meyers®. Gemmel, 10 Barb. 541 105, 106 M'llvaine v. Coxe's Lessee, 3 Cranch, 280 ; 4 Cranch, 309 76, 77 Mick®. Mick, 10 Wend. 879 63,190, 191 Miner®. Brown, 188 N. Y. 808 174 Minors. Happersett, 21 "Wall. 162 186 Mitchell t). U. S., 9 Peters, 711 6, 11, 28 Mitchell, Matter of, 61 Hun, 872 127 Mitchell ®. Bartlett, 51 N. Y. 447 169 Moncrief v. Ross, 50 N. Y. 431 157, 158 Mooerst). White, 6 Johns. Ch. 360 63 Moore®. Hegeman, 72 N. Y. 376 144, 148 Moore ®. Littel, 41 N. Y. 66 ....176 Moore «. Mayor, etc., 8 N. Y. 110 124 Morgan ®. King, 30 Barb. 9 ; 35 N. Y. 458 23, 71, 106 Morris' Lessee ®. Vanderen, 1 Ball. 64 54, 117 Morris v. Ward, 36 N. Y. 587 172 Morse ®. Morse, 85 N. Y. 53 ,../. 148 Mortimer ®. N. Y. El. R. R. Co., 6 N. Y. Supp. 898, 57 N. Y. Superior, ■ 509 8,34; 65 Mott®. Ackerman, 93 N. Y. 589 ..113, 158,165 Mott u. Palmer, 1 N. Y. 564 .97 Munrou. Merchant, 38 K Y. 9 .' 76, 77, ^91 Mutual Life Ins. Co. ®. Shipman, 119 N. Y. 334 135, 165, 167 Nellis®. Nellis, 99 N. Y. 505 115, 116 Newton «. Bronson, 18 N. Y 587 161 NicoUu. Walworth, 4Denio, 385 147 Nolan®. Command, 11 N. Y. Civ. Pro. R. 295 190 North Hempstead ®. Hempstead, 3 Wend. 109 14 TABLE OF CASES. XIX PAGE Noyes v. Blakeman, 6 N. Y. 567 145, 148 N. Y. Life Ins. & T. Co. v. Livingston, 133 N. Y. 135 165 o. O'Conner*. GifiEord, 117 N. Y. 275 139 Onderdonk ®. Mott, 34 Barb. 106 133 Orr V. Hodgson, 4 Wheat. 453 190 Orser v. Hoag, 3 Hill, 79 76, 77, 190 OverbaghB. Patrie, 8 Barb. 28 12, 23, 47, 65, 66 Owens V. Missionary Society of the Methodist Church, 14 N. Y. 380. .138, 139 Oxleyu. Lane, 35 N. Y. 340 147 P. Pattersons. "Winn, 5 Peters, 233 55 Paynes. Becker, 87 N. Y. 153 125 Pea Patch Island Case, 1 Wall. Jr., D. 8. Circ. Ct. Rep., Appendix No. II. 9, 11, 16, 66, 70 Pecks. Young, 26 Wend. 613 76, 77 Penn v. Lord Baltimore, 1 Ves. Sr. 444 10, 11, 13, 29, 35, 66 People es reJ. Short u. Bacon, 99 N. Y. 275 143 People V. Bostwick, 33 N. Y. 445 169 People V. Brown, 1 Caine, 416 39 People V. Canal Appraisers, 33 N. Y. 461 65 People V. Clarke, 10 Barb. 130 ; 11 Barb. 337 ; 9 N. Y. 349 14, 38, 47, 48, 66, 68, 74, 78, 80, 81 People V. Conklin, 2 Hill, 67 77, 191, 194 Peoples. Dibble, 16 N. Y. 203 199 People s. Fulton Fire Ins. Co., 25 Wend. 205 98 People ex rel. McDonald s. Keeler, Sheriff, 32 Hun, 563 22 People ex rel. Norton v. Gillis, 34 Wend. 201 171 People V. Livingston, 8 Barb. 353 16, 19, 30, 30, 33, 35, 47, 66, 67, 68 People s. Morris, 13 Wend. 335 74 Peoples. Newell, 38 Hun, 78 188 People V. Schermerhorn, 19 Barb. 540 35 Peoples. Snyder, 41 N. Y. 397 192 People s. The Rector, etc., Trinity Church, 22 N. Y. 44 19, 32, 26, 28, 43, 47, 48, 101, 109, 110 People s. Van Rensselaer, 9 N. Y. 391. .12, 35, 27, 29, 30, 31, 33, 34, 43, 47, 84 Perry s. Perry, 3 Paige, 501 134 Phelps «. Phelps, 143 N. Y. 197 135 Philips fl. Davies, 93 N. Y. 199 163 Phillips s. Eyre. L. R. 6 Q. B. 1 70 Ponds. Bergh, 10 Paige, 140 Ill, 173 Posts. West Shore R. R. Co., 133 N. Y. 580 174 Pray s. Hegeman, 93 N. Y. 508 115 Prentices. Janssen, 79 N. Y. 478 159 XX TABLE OF CASES. PAOE Price V. Price, 124 N. Y. 589 124, 125 Priest t). Cummings, 16 Wend. 617 123 Purdy «. Hayt, 92 N. Y. 446 115 R. Radley v. Kuhn, 97 N. Y. 26 149 Ransom®. Nichols, 22 N. Y. 110 127 Rawson v. Lampman, 5 N. Y. 456 141 Read*. Erie Ry. Co., 97 N. Y. 341 175 Read v. Williams, 125 N. Y. 560 151, 155, 157 158, 159 Redpatlm. Rich, 3 Sandf. 79 190, 193 Reid«. Shergold, 10 Ves. 370 163 Rennera. Muller, 44 Supr. Ot. 535 190 Rensselaer Glass Factory v. Reid, 5 Cow. 587 71 Respublica v. Mesca, 1 Dallas, 73 54 Rex V. Vaughan, 4 Burr. 2494 ; 3 P. Wms. 75 54, 65 Ring«. McConn, ION. Y. 268 147 Ring®. Steele, 3 Keyes, 450 172 Roberts. Coming, 89 N. Y. 325 150 Robins V. Ackerly, 91 N. Y. 98 30 Rogers v. Eagle Fire Co., 9 Wend. 611 168 Root V. Stuyvesant, 18 Wend. 257 142, 152, 165, 166, 167 Rose V. Rose, 4 Abb. Appeal Dec. 108 138 Roseau t>. Bleau, 131 N. Y. 177 169 Runyan v. Mersereau, Jr., 11 Johns. 534 121 Russell t). Russell, 36 N. Y. 581 154, 158 8. Sage®. Cartright, 9 N. Y. 49 176 Salmons. Stuyvesant, 16 Wend. 321 142, 166 Saunders®. Hanes, 44 N. Y. 358 116 Schettler ®. Smith, 41 N. Y. 828 95, 147- Schott ®. Burton, 13 Barb. 173 88, 172 Seldenu. Vermilya, 3 N. Y. 525 146, 147, 153, 154, 160 Seneca Nation ®. Christie, 136 N. Y. 122 3 Sergeson v. Sealey, 2 Atk. 412 164 Shanks®. Dupont, 8 Pet. 242 77 Shelley's Case, 1 Rep. 93 96, 128 Shively ®. Bowlby, 152 U. S. 1. 13, 68 Shot-well V. Mott, 2 Sandf. Ch. 46 '.".'... 137 Siemont). Schurck, 29 N. Y. 598 141 Simaru. Canaday, 53 N. Y. 298 123 Simpson®. Gutteridge, 1 Maddock, 609 46 Sinclair v. Jackson, 8 Cow. 543 162 Sir John Moline's Case, 10 Rep. 65 46 Slaughter House Cases, 16 Wall. 36 186 TABLE OF OASES. XXi PAOK Slee V. Manhattan Co., 1 Paige, 48 88, 90 Sleight V. Reed, 18 Barb. 159 137 Smith V. Bowen, 35 N. Y. 83 154, 153 Smiths). City of Rochester, 92 N. Y. 463 65, 66, 67^ 101 Smith «. Floyd, 140 N. Y. 387 158 Smiths. Rentz, 131 N. Y. 169 69 Spalding B. Hallenbeok, 35 N. Y. 204 173 Sparrow v. Kingman, 1 N. Y. 242 128, 168, 170, 173, 174, 176 Springstein v. Schermerhorn, 12 Johns. 357 .,. 31, 32, 33, 39 Stamm«. Bostwick, 122 N. Y. 48 189, 195 Stewart, Matter of, 131 N. Y. 274 ' 165 Story i). Elevated R. R.. 3 Abb. N. C. 478 8,65, 66,67 Strough a. Wilder, 119 N. Y. 530 171 Swaine v. Ferine, 5 Johns. Ch. 482 135 Sweeney v. Warren, 127 N. Y. 426 154, 158 Swinburne v. Swinburne, 28 N. Y. 568 141 T. Taggart v. Murray, 53 N. Y. 233 128 Tallman«. Coffin, 4 N. Y. 134 45 Taylor D. Biddall, 2 Mod. 289 96 Ten Eyck ®. Whitbeck, 135 N. Y. 40 ; 29 Abb. N. C. 314 172 Thelluson ®. Woodford, 4 Ves. 227 ; 11 Vea. 112 112, 115 Thompson ». Simpson, 128 N. Y. 270 176 Thurber i>. Townsend, 22 N. Y. 517 127 Tilden v. Green, 130 N. Y. 29 157, 158 Tolles V. Wood, 99 N. Y. 616 145 Tomlinson v. Dighton, 1 Peere Williams, 149 163 Tone®. Brace, 11 Pai. 566 175 Towlet). Remsen, 70 N. Y. 303 176 Towler v. Towler, 142 N. Y. 371 153, 156, 157, 158, 159, 160, 161 Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1 3, 10, 23 Townesend v. Walley, Moore, 341 163 Traphagen®. Burt, 67 N. Y. 30 141 Trustees of Brookhaven v. Strong, 60 N. Y. 56 12, 17 Tucker ®. St. Clement's Church, 3 Sandf. 242 137 Tuckers. Tucker, 5 N. Y. 408 149, 157 U. Underwoods. SutclifEe, 77 K. Y. 58 140 United States®. Arredondo, 6 Peters, 727 30, 35 United States B. Elm, 23 Int. Rev. Rec. 419 200 United States «. Gordon, 5 Blatch. 18 187 United States s. HoUiday, 3 Wall. 407 199, 200 XXll TABLE OF CASES. T. , FA6E Van Cortlandt «. T6z*r, 17 Wend. 338 86 Vanderheyden v. Crandall, 2 Denio, 9 115 Vanderkarr v. Vanderkarr, 11 Johns. 133 175 Van Giessen «. Bridgford, 18 Hun, 73 ; 88 N. T. 348 6, 65, 66, 67 Van Rensselaer «. BaU, 19 N. Y. 100 31,46 Van Rensselaer ». Dennison, 8 Barb. 33 ; 35 N. T. 393 119, 130 Van Rensselaer ®. Hayes, 37 Barb. 104 ; 19 N. Y. 68 39, 30, 33, 34, 35, 36, 46, 54, 77, 83, 118 Van Rensselaer ». Poucher, 5 Denio, 35 115 Van Rensselaer «. Read, 26 N. Y. 558 31, 119, 130 Van Rensselaer ». Sllngerland, 26 N. Y. 580 31 Van Rensselaer «. Smith, 27 Barb. 104 12, 25, 27, 29, 33, 34, 82, 98 Van Rensselaer ». Snyder, 13 N. Y. 299 31, 130 Van Schuy ver «. Mulford, 59 N. Y. 436 147 Van Winkle «. Constantine, ION. Y. 433 21, 56, 57, 58, 59 Vernon®. Vernon, 53 N. Y. 351 148 Verschoyle v. Perkins, 13 Irish Eq. 72 39, 31, 33, 34, 35, 43 Voorhes v. Presbyterian Church, 19 Barb. 103 137 WadhamsB. Amer. Home Miss. Society, 12 N. Y. 415 153, 162 WadsworthB. Wadsworth, 13 N. Y. 376 187, 191 Wain Wright ®. Low, 57 Hun, 386 ; 133 N. Y. 813 157, 187, 195, 196 WaitB. Wait, 4 N. Y. 95 134 Walter ». Drew, Comyn, 372 96 Ware v. Wisner, 50 Fed. R. 810 187 Waring, Matter of, 99 N. Y. 114 148 Waterman v. Webster, 108 N. Y. 157 166 Waters v. Stuart, 1 Caine's Cases, 47 56, 88, 121 Watson ». Donnelly, 38 Barb. 6.53 193 WesterveltB. Gregg, 13 N. Y. 202 137 Wetmore «. Story, 33 Barb. 433 65 Wetmore ». Truslow. 51 N. Y. 338 144 Wheaton n. Peters, 8 Peters, 591 70, 71 Wheeler «. Reynolds, 66 N. Y. 337 141 Whitbeck ®. Cook, 15 Johns. 545 56 Whites). Howard, 46 N. Y. 144 139 Williams «). Thorn, 70 N. Y. 370; 81 N. Y. 381 145 Williams v. Williams, 8 N. Y. 535 106, 107, 137, 173 Wood«. Chapin, 13 N. Y. 509 17l[ 172 Worcester v. State of Georgia, 6 Peters, 515 3 Wright ». Douglas, 7 N. Y. 564 141, 147_ i4g Wright r>. Methodist Epis. Church, 1 Hoffman Ch. 201 154 Wright «. Miller, 8 N. Y. 16 133, 135 Wright®. Saddler, 30 N. Y. 330 189, 19l[ 194 TABLE OF CASES. XXIU FAGB Wright «. Talmage, 15 N. Y. 307 154, 163 Wright V. Wakef ord, 17 Yes. 459 171 Y. Yates «. People, 6 Johns. 337 133 Yates «. Yates, 9 Barb. 334 137 Z. Zorntleln V. Bram, 100 N. Y. 13 174 TABLE OF STATUTES, I NEW NETHBKLAND. PASE Statutes of Dutch West India Company 1 Charter of Freedoms 7, 63, 80 Charter of Freedoms (amended) 7 "Laws and Ordinances of " 6, 7, 8, 27, 57, 61, 63, 86 II. ENGLAND.* 9 Hen. III. cap. 7 (Magna Charta) 123 9 Hen. III. cap. 27 (Magna Charta) 40 9 Hen. HI. cap. 28 (Magna Charta) 43 53 Hen. III. (Marlbridge) 42, 44 6Edw. I. c. 3 126 6 Edw. I. c. 4 (Stat, of Gloucester) 43, 44 13 Edw. I. (Stat. Westm. 2d, De Bonis) 26, 40, 48, 44, 122, 124 18 Edw. I. c. 1. {Quia Emptoves) 26, 29, 30, 34, 85, 36, 38, 39, 40, 41, 44, 72, 78, 81, 82, 84, 118 31 Hen. VIII. c. 15 45, 116 23 Hen. VIII. c. 10 139 27 Hen. VIII. c. 10 (Uses) 26, 86, 78, 93, 96, 133, 139, 150 27 Hen. VIII. c. 16 (Enrolments) 87 82 Hen. VIII. c. 1. (Wills) 18, 37, 60 33 Hen. VIII. c. 28 , 126 38 Hen. VIII. c. 39 42 34 & 35 Hen. VIII. c. 5 (Wills) 37, 60 35 Hen. VIU. c. 14 37 lEdw. VI. c. 14 139 18 Elizabeth, c. 5 78 27 Elizabeth, c. 4 78 21Jac. I. c. 2 47 31 Jac. I. c. 16 18, 60 12 Car. II. c. 24. ..2, 12, 25, 27, 28, 31, 32, 86, 37, 38, 52, 78, 81, 84, 91, 99, 123 • All repealed, lAd, pp. 77, 139, infra. XXvi TABLE OF STATTTTBS. FAQB 32 Car. II. c. 6 43, 46 22 & 23 Car. II. c. 34 46, 78 29 Car. II. c. 3 (Frauds) 16, 17, 50. 73, 78, 116, 117, 136 Declaration of Rights 30 I W. &M. c. 20 49 5&6W. &M. c. 6 49 7 & 8 "W. III. c. 23 58 8&9W. III. c. 31 60 llW.in.c.3 43 11&13W. III. c. 6 63, 190, 193 3 & 3 Anne, c. 4 87 4 Anne, c. 16 175 4 Anne, c. 18 60 7 Anne, c. 30 87 4 Geo. II. c. 38 118 5Geo. II. c. 7 56 II Geo. II. c. 19 118 35 Geo. II. c. 6 73 9Geo. III. c. 16 47 89 & 40 Geo. III. c. 98 115, 145 8& 9 Victoria, c. 106 170 III. PEOVINCE OF iSTEW YOEK.* Laws of 1664 and 1665 (" Duke's Laws") 6, 13, 16, 18, 32, 50, 56, 57, 58, 59, 61, 69, 87, 117, 133, 134 Laws of 1666 13 " Dongan's Laws" of 1688, 1684, 1685 17, 31, 51, 58, 59, 61, 87 " Charter of Libertys," passed Oct. 30th, 1683 17, 87, 133, 134 " An Act to Settle Courts of Justice," passed Nov. 1, 1683 108, 130, 131 "An Act for Naturalizing all those of foreigne nations, etc.," passed Nov. 1st, 1683 15, 64 "An Act of Settlement," passed Nov. 3d, 1683 17, 48 " An Act to prevent frauds in conveyancing of Lands, etc.," passed Nov. 3, 1683 17, 19, 57, 61 ' ' An Act declaring of what Age Lands may be passed and guardians chosen," passed Oct. 22, 1684 18 " A Bill to prevent Deceipt and florgerye," passed Oct. 33, 1684.. 19, 57, 61, 87 "An Act for Quieting of Men's Estates, etc.," passed Oct. 34th, 1684, 18,48 " A Bill Concerning former Mortgages," passed Oct. 39th, 1684 19 Bradford's N. Y. Laws (Edit, of 1694) 5, 61 Bradford's N. Y. Laws, p. 2 108, 131 Bradford's N. Y. Laws, p. 6 30, 42, 131 Bradford's N. Y. Laws, p. 15 122 * All repealed in 1828-9 (Laws, c. 21, sec. 4), vld. pp. 79, 103, ir^a. TABLE OF STATUTES. XXVii LIVINGSTON & SMITH'S REVISION OF PROVINCE LAWS. (References are to pages.) FAOE IL. &S. 2 (chap. 2.) 30 IL. &S. 46 61 1 L. & S. 75 (chap. 124) 60 1 L. &S. 84 18, 60, 64 IL. &S. 113 60, 64 1 L. & S. 443 62 2L. &S. 19 (chap. 124) 57, 60, 87 2L. &S. 63 61 2L. &S. 237 61 3L. &. S. 256 61 VAN SCHAACK'S LAWS OF THE PROVINCE OF N. Y. (In one volume.*) 31 48 45 42 82 64 88 15, 65, 69 97 15,64, 65,69 324 87 403 43 515 61 561 60, 64 611 56,57 676 63 765 56, 57 Ordinance of the Crown in 1726, in re " acknowledgments" 57 IV. CONSTITUTIONS OF THE STATE OF NEW YOEK. (1777.) Sec. in 131 Sec. XXIV 131 Sec. XXV 131 Sec. XXVI 131 Sec. XXXV 17, 72, 77, 79, 89, 104, 105, 132, 189 Sec. XXXVI 74,81,83. 109,117 Sec. XXXVII 65,80 Sec. XXXVIII 140 (1822-3.) Art. VII 65, 79, 80,102, 104, 132, 189,200 * Sometimes in two, but always with succeesive pagination. The Province laws of 1774 and 1775 are not in Van Schaack ; but should always be consulted. XXVlll TABLE OF STATUTES. (1846.) PAGB Art. 1 65, 79, 80, 100,101, 104, 105, 116, 119, 189, 200 Art. VI 108 (1894-5). Art. I 65, 79, 80, 100, 101, 104, 116, 119, 140, 189, 300 Art. VI 132 V. LAWS OF THE STATE OF NEW YOEK. Jones & Varick's Revision (cited J. & V.) 54, 58, 77. 78, 86 IJ. &V. 39 109 IJ. & V. 44 36, 73, 79, 109, 110 IJ. &V. 98 136 IJ. &V. 101 126 1 J. &V. 159 75 1 J. &V. 245 73,79,95, 128, 126 1 J. &V. 247 79 1 J. &V. 250 86 1 J. &V. 281 17 1 J. &V. 835 , 49 1 J. & v., Appendix 87 2J. &V. 4 78, 123 2 J. &V. 5 125 2J. &V. 7 78 2 J. &V. 55 190 2 J. & V. 57 85 2 J. & V. 67 (" Act concerning Tenures") 76, 78, 79, 80, 81, 82, 83, 93, 94, 119, 120, 123, 125, 190 2J. &V. 68 78,93, 168, 170 2 J. & V. 71 78 2J. &V. 84 56,78 2 J. &V. 88 78, 171 2 J. &V.91 117, 136 2 J. & V. 92 57 2 J. & V. 93 78 2 J. &V. 98 78 2J. &V. 108 43 2 J. & V. 133 124 2 J. & V. 233 118 2J. &V. 242 190 3J. &. V. 343 85,190 2 J. &V. 260 47_ 84 2 J. & V. 266 57' 87 2 J. & V. 281 175 2 J. &V. 282 77 138 2 J. &V. 402 ' 49 TABLE OF STATUTES. XXIX PAQE 2 J. & V. 403 49 3J. &V.445 49 2 J. &V. 462,463 47 GREEJTLEAP'S COMPILATION OF THE LAWS. 2 Greenleaf , 279 193 8 Greenleaf, 403 87 KENT & RADCLIFP'S REVISION. (Cited K. & R.) IK. &R. 44 133, 126 IK. &R. 51 123 IK. &R. 64 119,120 IK. &R. 79 117 IK. &R.93 134 IK. &R. 134 118 IK. &R. 481 121 IK. &R. 525 126 1K.&R. 562 47 WEBSTER'S EDITION N. T. LAWS. 1 W. 607 '. 36 VAN NESS & WOODWORTH'S REVISED LAWS OF 1813. 1 R. L. 52 123, 134 IR. L. 56 133 IR. L. 62 125 IR. L. 73 141, 168, 169,170 IR. L. 75 117 1 R. L. 78 117, 170, 171 1R.L. 86 124 IR. L. 124 49 IR. L. 181 126, 176 1R.L. 366 163 IR. L. 372 121 IR. L. 379 85, 190 1R.L.434 118 IR. L. 495 190 IR. L. 525 175 2R. L. 60 123 2R. L. 70 119, 130 2R. L. 175 86 2R. L. 199 124 2R. L. 541 192, 193 2R. L. 543 192, 193 2R. L. 543 192 2R. L. 544 193 2R. L. 555 85 XXX TABLE OF STATUTES. SESSION LAWS. FASB C. 25, Lawsof 1779 'i'2, 75 C. 2, Laws of 1783 73, 79, 95 C. 23, Laws of 1786] 36 C. 35, Laws of 1786 77 C. 46, Laws of 1788 77. 138, 192 C. 90, Laws of 1788 5* C. 43, Laws of 1789 192 C. 33, Laws of 1798 36 C. 42, Laws of 1798 192 C. 73, Laws of 1798 85 C. 190, Lawsof 1801 85 C. 49, Laws of 1802 192 C. 109, Lawsof 1804 192 C. 35, Lawsof 1805 193 C. 49, Laws of 1805 85 C. 167, Laws of 1806 128 • C. 123, Laws of 1807 192 C. 175, Laws of 1808 192 C. 150, Laws of 1811 85 C. 119, Lawsof 1813 36 C. 25, Laws of 1819 .•.' 192 C. 222, Laws of 1819 36 C. 336, Lawsof 1824 93 C. 307, Lawsof 1825 194 C. 324, Laws of 1825 92 C. 297, Lawsof 1826 192, 195 C. 242, Lawsof 1827 92, 195 C. 331, Lawsof 1838 93 C. 20, Laws of 1828-1829 103 C. 21, Laws of 1828-1829 79, 103, 104 C. 171, Laws of 1830 192, 193 C. 330, Laws of 1830 143, 143 C. 272, Laws of 1834 194 C. 87, Lawsof 1843 192, 200 C. 115, Lawsof 1845 191, 193, 194, 195, 196 C. 271. Laws of 1846 130 C. 337, Laws of 1846 , 119 C. 280, Lawsof 1847 132 C. 200, Lawsof 1848 136, 127, 174 C. 375, Lawsof 1849 126, 127,162, 174 C. 576, Lawsof 1^53 127, 162 C. 576, Laws of 1857 193, 194 C. 90, Laws of 1860 137, 162, 174 C. 333, Laws of 1860 160 C. 172, Laws of 1863 127, 162, 174 C. 782, Lawsof 1867 163 C. 513, Lawsof 1868 193 C. 120, Lawsof 1872 187, 191, 196 TABLE OF STATUTES. XXXI PAGE C. 141, Laws of 1872 |^^ C. 358, Laws of 1872 ^°° C. 809, Laws of 1873 ■-•••■■ "^ C. 261, Laws of 1874 ' ^ 95 C. 38, Laws of 1875 ^'*^- tH C. 336, Laws of 1875 t^i 0.111, Laws of 1877 ■- fl C. 249, Laws of 1879 ^^^' ^^'t C. 245, Laws of 1880 •••• Y^ C. 300, Laws of 1880 i-*^- ^°-;; C. 472, Laws of 1880 127,162,174 C. 120, Laws of 1881 ^^ C. 275, Laws of 1882 146, 149 C. 26, Laws of 1884 146, 149 C. 381, Laws of 1884 1^''' C. 537, Laws of 1887 127,162, 174 C. 42, Laws of 1889 187,192, 196 C. 475, Laws of 1890 ^"^^ C. 125, Laws of 1891 63 C. 594, Laws of 1892 127 C. 616, Laws of 1892 137 C. 677, Laws of 1892 (Vol. II) 171 C. 679, Laws of 1892 200 C. 207, Laws of 1893 191,193, 195 C. 229, Laws of 1893 200 C. 692, Laws of 1893 200 C. 701, Laws of 1893 140 VI. KEVISED STATUTES.* Generally 2,53,58, 97 1 E. S. 281 49 1 R. S. 284 101 1 R. S. 717 97 1 R. S. 718, sec. 1 98,99, 101, 110 1 R. S. 718, sec. 2 101 1 R. S. 718, sec. 3 98,99, 100, 110, 116 1 R. S. 718, sec. 4 98, 99, 100, 120 1 R. 8. 718, sec. 5 102 1 R. 8. 719 102, 186 1 R. S. 719, sec. 8 186 1 R. 8. 719, sec. 9 193 1 R. 8. 720, sec. 15 191, 194 1 R. 8. 720, sec. 16 194 1 R. 8. 720, sec. 17 189, 194 1 R. 8. 720, sec. 18 195 * See "Revised StatuteB," General Index. XXXll TABLE OF STATTTTES. FAGE 1 R. S. 721 127, 145 1 R. S. 731, sec. 19 193 IR. S. 723 110 IR. S. 733, sec. 1 109, 131 1 R. S. 732, sec. 2 103, 110, 111 1 R. S. 722, sec. 3 116 IR. S. 733, sec. 4 116 IR. S. 732, sec. 5 103, 111 1 R. S. 733, sec. 7 112 IR. S. 723 110 IR. S. 723, sec. 8 112 1 R. S. 733, sec. 9 113 1 R. S. 723, sec. 10 113 IR. S. 723, sec. 11 Ill IR. S. 723, sec. 13 112, 113 IR. S. 723, sec. 14 114, 149 1 R. S. 733, sec. 15 114, 149 IR. S. 72.3, sec. 16 114, 149 IR. S. 723, sec. 17 115, 149 1 R. S. 724, sec. 20 113 IR. S. 724, sec. 24 113 IR. S. 735, sec. 38 128 IR. S. 726, sec. 37 114 1 R. S. 736, sec. 38 115 IR. S, 736, sec. 40 144 1 R. S. 727 134, 137 IR. S. 727, sec. 45 121, 137, 140, 141 1 R. S. 727, sec. 46 143 1 R. S. 727, sec. 47 134, 141, 147, 169, 170 1 R. S. 727, sec. 48 134 1 R. S. 738 142, 144 IR. S. 728, sec. 49 141, 169, 170 IR. S. 728, sec. 50 Ul IR. S. 738, sec. 51 140, 141 IR. S. 728, sec. 58 140, 141 IR. S. 738, sec. 54 135 1 R. S. 728, sec. 55 143,153 IR. S. 729 145 IR. S. 729, sec. 56 157 1 R. S. 729, sec. 57 144, 145 IR. S. 729, sec. 58 143, 146, 157 IR. 8.729, sec. 59 157 1 R. S. 729, sec. 60 133, 141, 147 1 R. S. 730, sec. 63 145, 148, 149 1 R. S. 730, sec. 65 146, 149 IR. S. 730, sec. 66 149 IR. 8. 730. sec. 67 147, 159 1 R. S. 730, sec. 68 148 IR. 8. 731 153 1 R. 8.733, sec. 73 153 TABLE OF STATUTES. XXXlll FASK 1 R. S. 732, sec. 74 ^53 161 1 R. S. 732, sec. 75 J°" 1 R. S. 732, sec. 76 ]f 1 R. S. 732, sec. 77 J^* 1 R. S. 732, sec. 78 -• J^* 1 R. S. 732, sec. 79 1^*- ^^^ 1 R. S. 732, sec. 80 ^^^ IR. S. 732, sec. 81 • ^^^ IR. S. 732, sec. 82 1^5 1 R. S. 733, sec. 83 ^^^ IR. S. 733, sec. 84 ^55 1 R. S. 733, sec. 85 1^5 1 R. S. 733, sec. 86 151. 156, 160 1 R. S. 733, sec. 87 163 1 R. S. 733, sec. 92 155 1 R. S. 734, sec. 93 156 IR. S. 734, sec. 94 154,157 IR. S. 734, sec. 95 154, 157 1 R. S. 734, sec. 96 157 1 R. S. 734, sec. 97 157, 158 ] R. S. 734, sec, 98 159 IR. S. 734, sec. 99 159 IR. S. 734, sec. 100 158, 159 1 R. S. 734, sec. 102 148, 158, 159 IR. S. 785, sec. 103 159 IR. S. 735, sec. 104 156 IR. S. 735, sec. 105 156, 159 IR. S. 735, sec. 106 160 IR. S. 735, sec. 107 166 1 R. S. 735, sec. 108 166 1 R. S. 735, sec. 109 : 161, 162 IR. S. 735, sec. 110 161, 162 1 R. S. 735, sec. 112 162 IR. S. 785, sec. 113 163 1 R. S. 786, sec. 114 166 1 R. S. 736, sec. 115 163 1 R. S. 736, sec. 116 163 1 R. S. 736, sec. 117 162 IR. S. 736, sec. 118 164 IR. S. 736, sec. 119 164 1 R. S. 736, sec. 120 164 IR. S. 736, sec. 121 164 IR. S. 736, sec. 123 163 1 R. S. 737, sec. 133 165 IR. S. 737, sec. 124 165 1 R. S. 787, sec. 125 164 1 R. S. 737, sec. 126 165 1 R. 8. 737, sec. 128 149, 158, 165 IR. S. 737, sec. 139 149, 158, 166 IR. 8. 737, sec. 130 162 XXXVl TABLE OF STATUTES. PASX Sec. 1996 187 Sec. 1997 187 Sec. 1998 , 187 Sec. 1999 189 Sec. 2169 187, 188 Sec. 2172 187, 188, 196 Sec. 3174 187 Sec. 2165 187 HISTORY OF THE LAW OF REAL PROPERTY IN" THE STATE OF NEW YORK. INTRODUCTORY REMARKS. The law of real property in New York prior to the War of Independence was in the main the contemporary English law relative to the socage tenure — the only tenure known in the province after the year 1664. Prior to that year the States-General of Holland had exercised certain rights of sovereignty over the settled portion of New York, then called New Netherland. While the Dutch were in posses- sion of the province, such lands as were subjected to private dominion were in their incidents governed by the law of New Netherland. This system of law was in the main the law of Holland, the Roomsch Hollandsche BecM, but modified by the statutes of the West India Company — a corporation possessing in subordination to the States- General of Holland certain delegated powers of government. By virtue of the several treaties and arrangements under which the States-General abandoned the province of New Netherland to the English Crown, the Dutch owners of those lands in the province, already patented and held prior to 1664, acquired certain peculiar rights against the Eng- lish sovereign. These rights, expressly reserved in articles of capitulation, were, however, insufficient to eflEect much change in the ultimate uniformity of the law of real prop- erty in the province of New York, although they did to a limited extent concern the devolution of title to particular pieces of property originally held under Dutch patents by former Dutch subjects, the antenati. In course of time the rights thus expressly reserved were extinguished, either by the death of the former Dutch proprietors, or by their voluntary submission to the new government. The precise mode in which these changes were accomplished is not ob- scure. By the beginning of the eighteenth century the law of real property in New York had become uniform, and aU iJ INTEODirCTOEY EEMAEKS. the land in tlie province was either held of the Crown by the common socage tenure, as finally reformed by the statute 12 Car. 2 c. 24, or else was in the hands of the Crown itself and subject to the English law regulating Ci'own lands. As the province of New York gradually acquired a definitive constitution and an organized government, the purely Eng- lish law relating to the socage tenure was to some extent modified by local statutes or usages, of greater or lesser signifi- cance. But the changes made in the province of New York in the socage tenure known to the English law, were not ex- tensive. So we may assume it as undoubtedly true, that at the outbreak of the War of Independence the law of real property in New York did not materially differ from the contemporary English law regulating the free and com- mon socage tenure ; yet the laws of the two countries did difiEer in some respects. Neither independence nor the constitutions of the repub- lican and the federal governments made at first great changes in our law regulating land. Not until 1829 was the law of real property reformed by the Revised Statutes of the State of New York. These celebrated statutes, as interpreted by judicial decision, are the basis of a new law of real property, and now afEord a learning quite distract from the former law. The changes thus instituted are not fully apparent without a comprehension of the law relating to the former socage tenure, for the terminology of the Revised Statutes involves the antecedent law. The new learning has had many competent expositors, and yet it is hoped that this essay may prove not altogether useless to the profession. THE LAI OF REAL PROPERTY IN THE STATE OF NEW YORK. CHAPTER I. EUEOPEAM- LAW IN NEW YORK. When the great Powers of Europe, after the Columbian voyages, partitioned the New World among them, they acted on principles which their generation had gleaned from the classical jurists of Rome. The acts of prior discovery and occupation, which alone were held to confer on the Powers a title to the territory of the New World, were only refinements of the Roman law relative to the taking {occupatio) of ownerless or derelict property {res nullius).^ In the practical application of these theories, this territory was regarded as vacuum domidlium, and the right of the aboriginal nomads to the possession of the soil was either ignored or else treated as jus in re aliena, a mere passive right which the Indians might cede by license of the great Power claiming the dominion over the terri- tory, but not otherwise.' Even this right, reluctantly con- ceded to the Indians, was jealously guarded when the cession was made to a subject. ° An Indian was pre- sumed to be inops consilii.* The ancient status of the American aborigines affects them in modern law.' ' Maine's Ancient Law, Chap. viii. ' Johnson •». M'Intosh, 8 Wheat. 543 ; Worcester v. State of Georgia, 6 Peters, 515 ; Martin v. Waddell, 16 Peters, 367 ; Holden v. Joy, 17 Wall. 211 ; Buttz v. North. Pacif. R. R., 119 U. S. 55 ; Town of Southampton v. Mecox Bay Oyster Co., 116 N. T. 1, 7 ; Seneca Nation v. Christie, 126 N. T. 122, 136 ; Howard v. Moot, 64 N. Tf. 362, 271. » Jackson «. Wood, 7 Johns. 290. * Jackson v. Wood, 7 Johns. 290 ; Chandler «. Edson, 9 Johns. 362. ' As the modern status of the Indians is beyond the scope of this essay, the authorities supporting the statement of the text will he found in Appendix No. III. this volume. 4 CLAIMS TO TEEEITOEY. At a very early day, the States-General of Holland and the English Crown both claimed title to the territory now embraced in the State of New York. Disputes about the legal efifect of discovery and settlements made at the embouchures of rivers penetrating far inland frequently occur in the division of new countries. In the year 1614 the States-General, by an octroi, or charter, to an Amsterdam company of merchants, granted the exclusive privilege to frequent for four voyages within three years after January 1st, 1615, the newly discovered lands " situ- ated in America between New France and Virginia, whereof the sea-coasts lie between the fortieth and forty -fifth de- grees of latitude." ' This vague country was in this charter first called New Netherland, and its boundaries included the territory now New York. The octroi was followed in 1621 by another charter to the Dutch West India Com- pany, which until the year 1664 exercised the local sover- eignty over this large country. This corporation aggregate was in its powers, obligations, and attributes partly public, partly private. It had extensive though subordinate pow^ers of government, and yet it was formed for the purpose of trading and profit to its shareholders." The West India Company under its charter colonized the country, planting Dutch subjects at the mouths of the great rivers and establishing there badges of its dominion. Until 1630 the border English made no encroachment on the terri- tory claimed by the Dutch, although as early as 1621 the English ambassador at The Hague was directed to repre- sent to the States-General that the Dutch settlements were in conflict with the right of the King of England, who, jure primcB occupationis, had good title to the country. ° In 1632-33 the conflicting claims of the English and Dutch were sharply formulated in the diplomatic intercourse about the ship "Eendracht." * But from 1621 until 1664 the West India Company was permitted to go on with its project of colonization and government. The conduct of the English • Documents relating to the Colonial History of New "Sork, I., 11. " Asher's Introduction : Amsterdam, 1854-67. » Doc. rel. Col. Hist. N. Y., III., 6, 7, 8. • ma., I., 50, 58. THE LAW OF REAL PEOPEETT IN NEW NETHEELAND. 5 authorities during this period, though not uniformly acquies- cent, certainly failed to indicate the rupture which ulti- mately ensued, for New Netherland was permitted to attain the dominion over a white population of ten thousand per- sons who were governe'd by the West India Company as the feudatory of the States-General.' While the Dutch possessed the country, the nature of the government and the laws of New Netherland were, as in the case of most primitive colonies, determined by the insti- tutions of the parent land. It has been well said that a colony is not a State ; its government and institutions may be to some extent autonomous, but they are essentially db extra, not ah intra. The powers of the West India Com- pany depended on its charter from the States- General, Rrhich reserved to itself a certain superintending and ap- pellate jurisdiction over the colonists of New Netherland, inhibiting its feudatory — the West India Company — from enacting laws contrary to the spirit of the jurisprudence of the fatherland. The nature of the dominion of the West India Company must be sought in the Dutch seigniorial system, for it was treated by the Dutch statesmen and jurists as a seigniorial feud, or a fief of nobility, of which the West India Company was the patroon, being invested with the arms of a count and a somewhat extended seignio- rial jurisdiction. The lands of New Netherland were primarily vested in the company, having been acquired by it under its charter, either by grant from the Indians or as derelicts." Portions of these lands were again granted by the com- pany to colonists, sometimes in the name of the States- General, the Prince of Orange, and the managers of the West India Company, and at others in that of the local director of the West India Company, but on condition that the grantee acknowledge the company as patroon.' Where ' A more full discussion of this event, accompanied by many citations of authority, is contained in the Historical Introduction to the Eeprint of Brad- ford's (1694) JSr. Y. Laws, by the Grolier Club in 1894, the bicentennial of that publication. " Historical Int'd. to the Grolier Reprint of Bradford's 1694 Laws, XXX. 8 Doc. rel. Col. Hist. N. Y., XIII., XIV., passim; Hoffman's Treatise upon t) DUTCH WEST INDIA COMPANY. the land was in the actual possession of the Indians, the colonists were required to procure a ground brief or license from the company before the same could be purchased of the Indians, or else a confirmation of an Indian grant taken without license ;' but a failure to procure such an original grant from the Indians, did not per se in- validate a patent issued under the authority of the Euro- pean power, which claimed the soil as its own," whether such claim was in right of discovery and occupation or by cession from the original European discoverer. The Dutch colonists then held the lands of the West India Company as patroon. The incidents of such tenure were primarily regulated by ordinances of the company, and in the absence of such regulations they were substantially determined by the law of Holland, which was by various edicts and com- missions made the common law of New Netherland.' Use- ful outlines of this system of jurisprudence may be found in the English translations made for the use of English bar- risters practising before the Privy Council or in the Dutch dependencies of England.* About the year 1628 the Dutch West India Company, with the assent of the States-Greneral, determined to encour- age private colonies in liTew Netherland, the patroons of which were to be vested with seigniorial government within their colonies. In furtherance of this scheme, the Charter Estate, etc., of the City of New Tork, II., 44 ; de Lancey's N. Y. Manors, 50, 51. ' Doc. rel. Col. Hist. N. Y., I., 37, 56, 84 ; Duke of York's Book of Laws (Penna. edit.), 418 ; Doc. rel. Col. Hist. N. Y., II., 557 ; Laws and Ordinances of New Netherland, 9. Vid. Lecture LI., 3, Kent's Com., for a full exposition of this subject. » Jackson v. Hudson, 8 Johns. 875, 384 ; Fletcher «. Peck, 6 Cranch, 87 ; Mltchel «. U. S., 9 Peters, 711, 748 ; Holden s. Joy, 17 Wall. 211 ; Beecher «. Wetherby, 95 U. S. 517. » Doc. rel. Col. Hist. N. Y., I., 161, 178, 351 ; XIV. id. 334, 351, 437, 438, 551 ; Laws and Ordinances of New Netherland, 400, 478 ; Int'd. to Grolier Bradford, XX. ; Dunham ». Williams, 37 N. Y. 251, 358 ; Denton ®. Jackson, 3 Johns. Ch. 320, 324 ; Van Giessen b. Bridgford, 18 Hun, 78 ; s. c. 83 N.Y. 348. * Qrotius' Introduction to Dutch Jurisprudence, Capetown, 1878 ; Insti- tutes of the Laws of Holland, by Johannes Van der Linden, LL.D., London, 1823 ; Commentaries on the Roman-Dutch Law, by Simon Van Leeuwen, LL.D., London, 1820 ; also another edition in two volumes by Eotz§, London, 1881. DUTCH PATEOONS. 7 of Freedoms and Exemptions was promulgated,' whereby any member of the company (amended in 1640' to any in- habitant of New Netherland) who might undertake to plant " a colonic" of fifty persons should possess certain seigni- orial privileges prescribed in the charter and well known to the Dutch law relating to feuds. Under the charter seven patroonships, or Dutch seigniories, were founded before the West India Company determined that the separate ju- risdictions thus created were a mistaken policy. Only two of these patroonships, that of van Rensselaer, in the valley of the upper Hudson, and that of van der Donck, at Yonkers, survived the English conquest in 1664. The estate and privileges thus offered to the patroons were not of the ancient feudal type, but resembled those in Holland then known as good feuds, or feuds which had been so modernized as to prevent harsh incidents, escheats, and re- versions to the patroon. The " colonies" of the patroons were made common sub-fiefs without any title of nobility attached to them. They all lay within the greater fief of Ifew Netherland, although the patroons did not at first de- sire to recognize the West India Company as the source of their jurisdiction and their mesne lord, notwithstanding that the Charter of Freedoms and Exemptions of 1629' (amended in 1640*) expressly declared that the sub-fiefs of the patroons were to be holden of the company. The substance of the rights of the patroons of these Dutch seigniories is to be found in the charters last mentioned. It was taken from the contemporary law of Holland relating to common mesne or sub-fiefs, held without any noble titles or dignities at- tached to them and without any incidents of nobility." By the charters the patroons were given the right to dispose of their fiefs by vsdll — venia testandV The creation of the patroonships did not interfere with the grants to private persons of the lands acquired by the ' Laws and Ord. of New Neth., 1. * Doc. rel. Col. Hist. N. Y., I., 119. ' Section vl. * Doc. rel. Col. Hist. N. Y., I., 120. ' See Jus Feudi, Van Leeuwen's Boman Dutch Law, I., chaps, xiv., xv., xvi., and xvii., citing Grotius, II., 41, 43, 43. « Doc. rel. Col. Hist. N. Y., I., 119. S THE ENGLISH PRETENSIONS. West India Company. By tlie terms of the charter' the private Dutch colonists might pre-empt as much land as they could improve. The number of the grants of every kind made by the Dutch Government is said to be about six hundred and thirty-eight." By the beginning of the year 1664 New Netherland possessed a population of some seven to ten' thousand colonists under an organized government of the kind denoted. The inhabitants lived in villages or on outlying farms, then called bouweries' or kraals.' The waterways furnished the inhabitants with cheap and nat- ural means of communication, but there were highways already in existence," and in the villages and the capital of New Netherland streets' or public ways {via publicoB) were already established and the law concerning these remains of practical interest in a few cases.' The estates held by the colonists were treated as permanent feuds of inherit- ance, and were subject to the incidents of feudal property under the Roman-Dutch law ; yet they held their prop- erty as if it were alodial," this being one of the reforms then familiar in the law of Holland." By the year 1662 the settlements of New Netherland began to prosper, and again attracted the attention of the English, who hastened to revive their dormant pretensions to the territory called New Netherland, and for forty years occupied and governed by the Dutch. Although England and Holland were then at peace, and the Dutch in actual possession of the territory, on March 12/22, 1664, King Charles II. granted to his brother, the Duke of York and ' Laws and Ord. of New Neth., 8 ; Doc. rel. Col. Hist. N. Y., I., 119. « De Lancey's N.Y. Manors, 66 ; O'Oallaghan's Hist, of NewNeth., II., Ap- pendix M. ' Critical and Narrative History of America, III., 385 ; Brodhead's History of N. Y.,I., 734. 4 3 R. L. of N. Y., Appendix No. I. ' So called in Jackson ex dem. «. Rogers, 1 Johnson's Cases, 33, 46. 1 Dunham v. Williams, 37 N. Y. 251. ' Hoffman's Estate, etc., Corp. N. Y., I., 303, 305, 830. ' Bartow i>. Draper, 5 Duer, 130, 143 ; Story «. Elevated R. R., 3 Abb. N. C. 478, 489 ; cf. Mortimer «. N. Y. El. R. R. Co., 6 N. Y. Supplement, 898 ; 57 N. Y. Super. Ct. R., 509 ; Hine e. N. Y. El. R. R. Co., 7 N. Y. Supp. 464. » Doc. rel. Col. Hist. N. Y., I., 120. "> Van Leeuwen's Roman-Dutch Law, I., 258. CAPITULATIOlf OF NEW NETHEELAND. 9 Albany, all the territory so occupied or claimed by the Dutch. ' The legal nature of this grant is of importance in any consideration of our subject, and at a subsequent stage will be noticed." Armed with this patent and the vice- regal authority it contained, the Duke of York, as Lord High Admiral of England, quickly dispatched a naval force to subdue New Netherland. On August 27th, (old style), 1664, the city of New Amsterdam, the capital of New Netherland, capitulated to the English under formal and regular articles of capitulation.' In September following Fort Orange (Albany) surrendered, and a little later the Delaware country capitulated under separate articles.* Not until February 23d, 1665, did King Charles II. formally de- clare war against the States-Greneral. During the entire war New Netherland remained in possession of the Eng- lish, who called it New York, and by an uti possidetis clause of the treaty of peace signed at Breda, July 21/31, 1667, the province was formally ceded to the English Crown' in exchange for Surinam." The question whether the English secured a title to New York through this treaty, following their conquest of 1664, or through the right of discovery and prior occupation, has been very perplexing to common law lawyers, and has been variously decided, although it seems now not to be a prac- tical question. It is certainly one which the governments interested decided for themselves upon principles which it is too late to reopen for discussion, even if such discussion were within the province of judicatories.' The title of King Charles II. to the easterly end of Long Island in no event ' By reason of the difficulty of finding this patent in print, it is given in fullin an Appendix, No. I., to this volume; Doc. rel. Col. Hist. N.Y., II., 295 ; Martin ®. Waddell, 16 Peters, 367 ; the Pea Patch Island Case, 1 Wall. Jr. U. S. Cir. Ct. Rep., Appendix No. II. '^ Infra, p. 11. s R. L. of N. Y., anno 1813, II., Appendix I. ' Doc. rel. Col. Hist. N. Y., III., 69, 71. ' Per the text of the treaty, see Dumont, Corps Diplomatique, VII., 44. ' « This treaty was discussed by Mr. Jean De Witt in 1699. See his discourse in Chalmers' Colonial Opinions, p. 744, Amer. edit. ' Infra, p. 65, and see the authorities cited in the Grolier Bradford's N. Y. Laws of 1694, Int'd., chap. I., pp. iii., iv. 10 depends on eitlier conquest or cession, for it was never claimed by the Dutch.' The historical documents relating to the pretensions of the English to New Netherland conclusively show that Charles II. determined, entirely irrespective of the validity of his claims to the territory by right of discovery, to sub- due New Netherland ; but in order to neutralize such a fla- grant breach of the law of nations, the English admiral, who accomplished the expulsion of the Dutch authorities, was for a time after his return committed to the Tower to await the consequences of his act ; and, had the issue of the sub- sequent Dutch War been otherwise than it was, according to the opinion of the time the admiral would have been made a vicarious sacrifice to placate Dutch indignation." The excuse for this repetition of historical facts is the large place that this occurrence has usurped in judicial deci- sions bearing on our subject. King Charles II. never had actual possession of New Neth- erland, when prior to his reduction of the territory he grant- ed it to the Duke of York. The latter, being a subject, held the territory of the Crown, on the terms and tenure of his patent, which was as of the King's Manor of East Green- wich and " our County of Kent in free and common socage and not in capite, nor by knight service Yielding and ren- dering. " ' In this way New York first received the common, or non-feudal, socage tenure as it stood in England in the year 1664. The right of the Crown to grant Crown lands to the Duke of York, if we assume that the Dutch were intruders thereon, was then clear by the settled principles of English law.* In the early history of American coloniza- tion the king was regarded as possessed of the English ter- ritories in America, as of his own demesne ;° a doctrine which subsequently gave way to the principle that he was seised thereof in jure corona' It was a settled rule of the law of ■ Town of Southampton n. Mecox Bay Oyster Co., 116 N. Y. 1, 7. » See Pepys' Diary. Vol. IV., 237, 306. » Doc. rel. Col. Hist. N. T., II., 296 ; Penn «. Lord Baltimore, 1 Ves. Sr. 444 ; Appendix No. I., infra. '■ Martin ». Waddell, 16 Peters, 367. " Pownall, Administration of the Colonies, 48. « MA., 139. 11 England that by his prerogative the king was the universal occupant, and entitled to all derelict lands' in his dominion, and had the right to grant them at his pleasure or by his authorized officers.' The fact that the grant to the Duke of York was made before the Crown's possession of the terri- tory in question, and while it was occupied by the Dutch, ultimately raised doubt' about his title, and led to another grant to him in the year 1674.* The Duke of York's grants or patents conformed to the theories of the law advisers of the Crown, and were closely associated with well-established precedents. They were more than mere grants of territory, ° as they conferred on the grantee certain delegated regalities and powers of government over the inhabitants. They were not the inven- tions of their draftsmen. Precedents were found in the frame of government of the old counties palatine of England and Ireland,' which enjoyed a quasi-independent but subordinate government, and also in the form of govern- ment enjoyed by the English remnant of the Duchy of Nor- mandy, the islands of Jersey and Guernsey,' which were outside the realm and bey(md seas, and therefore presumed to offer closer analogies for the frame of colonial governments. A proprietary government was only a feudal seigniory of a certain type.' The first royal patent to the Duke of York was therefore of a twofold character : it was a grant, or con- veyance of lands from the Crown," and a franchise of a polit- ical nature." As a grant it is the source of all the English titles in New York, originating prior to the accession of James II., when the ungranted lands became Crown lands and subject to a new set of legal principles. This distinction ' Bacon's Abr. Tit. " Prerogative," B. ' Mitchel V. U. S., 9 Peters, 748. ' The Pea Patch Case, 1 Wall. Jr., Appendix, cxxvii. * Infra, p. 16. « Martin v. Waddell, 16 Peters, 367. « Case of the County Palatine of Wexford, Da vies' Report (Irish), 159 ; Madox's Baronia Anglica, 150, " Comes Palitinus. " ' Pownall's Colonies, 60. " Penn ». Lord Baltimore, 1 Ves. Sr., 444 ; Case of the County Palatine of Wexford, Davies' Report (Ir.), 159. » Cf. 2 Bla. Comm., 346. " 1 Bla. Comm., 109 ; Chitty's Prerogatives of the Crown, 81. 12 PEOPEIBTAET GOVEENMENT. is not always noticed in the deductions of ancient titles in N'ew York. The patent to the Duke of York was in terms operative to pass rivers and navigable streams within the territory. The right of the Crown to grant the rivers, havens, and shores of the sea, together with the subaqueous territory, was regarded, notwithstanding Magna Charta, as clear, ' but the proprietor took them subject to the jus publicum, or, as the kiag himself held them, according to the jurisprudence of England." Titles thereto deduced from the proprietor remained subject to the common law rights of the public." Before the king had made these several grants to the Duke of York the feudal system of England had been greatly modified by statutory reforms. Formerly the Duke of York would have been tenant in capite of the king and he would have held the province by tenure in chivalry ut de corona,^ the king possessing the wardship of the lands ; but in 1660, by the Statute 12 Car. II. c. 24, " it had been enacted that all tenures thereafter created by the king should be in free and common socage and not by knight service or in capite.' The proprietary governments created by the Crown were only modified fiefs of the Crown, in which the proprietors had certain y^ra regalia, such as were formerly attached to the old counties palatine.' It is, however, unnecessary to pursue the nature of the duke' s government further than it relates to the tenure by which the Duke of York held the province. The feudal system never prevailed in New York, having been abolished in England' before ]S"ew York was subjected to the English dominion. ' Hale's "De Jure Maris," 14, 17, 18 ; Trustees of Brookhaven v. Strong, 60 N. Y. 56, 64 ; Mahler «. Transportation Co., 85 N. Y. 352, 356. ' Martin v. Waddell, 16 Peters, 369 ; see this subject generally treated in Shively v. Bowlby, 152 U. S. 1 ; Lowndes ». Huntington, 153 U. S. 1. ' De Lancey «. Piepgras, 188 N. Y. 36, 37. * Case of the County Palatine of Wexford, Davies (Ir.), 159, 181. ' Overbagh v. Patrie, 8 Barb. 28, 40 ; 6 N. Y. 510. ' This expression, not " in capite," is criticised : Co. on Litt. Notes to 108a. ' 1 Bla. Com., 107 ; Chitty's Prerog. of the Crown, 31 ; De Lancey ». Piepgras, 138 N. Y. at p. 37 ; Penn v. Lord Baltimore, 1 Ves. Sr. 444 ; Case of the County Palatine of Wexford, Davies (Ir.), 159 ; Madox's Baronia Angl'ca, 150. 8 13 Car. II., c. 34 ; People v. Van Rensselaer, 9 N. Y. at p. 838 ; Van Rensselaer e. Smith, 27 Barb, at p. 149 j et infra. 13 When the English took possession of the province they found that those lands already reduced to private possession were largely in the hands of the Dutch, although certain Englishmen had under the Charter of Freedoms and Exemp- tions taken up lands," which they held of the West India Company as patroon." Efforts to conform the former tenures to the duke's patent were immediately made by the duke's governor, who was invested with the law-making authority. In 1664 the first English code, called the "Duke's Laws,"' required all former owners to bring in their grants and take out new patents " from the present governoure in the behalf of his Royall Highness, the Duke of Yorke." This law was often repeated/ The reason assigned for the change was that " several townes and persons within this government, as well English as Dutch, do hould their Lands and houses upon the Conditions of being subjects to the States of the United Belgicke Provinces, which is con- trary to the Allegiance due to his Majestie."' The precise mode in which the change in the tenure of lands was accom- plished may be ascertained by an examination of the governor's confirmation of a Dutch transport. Examples of such instruments in one form or another are readily accessible to the inquirer after them.' The statutes,' relative to the confirmation of the Dutch patents, and the deed of formal confirmation from the duke' s governor, followed by an actual attornment occasioned by the payment of quit-rents to the new lord proprietor,' had the effect of converting, in fact as in law, all the Dutch ' Laws and Ord. New Neth., 27 ; O'Callaghan's New Netherland, II., Ap-, pendix M. 5 Amendment of 1666 to Duke's Laws of 1664. 3 Title " Lands." * Amendments of 1665 and 1666 to Duke's Laws. ' Amendment of 1666 to Duke's Laws ; Record of N. Y. Court of Assizes, March 35tli, 1667, p. 443. * Hoffman's Treatise upon the Estate, etc., of the City of New York, II., 44, 46 ; Bogardus ■». Trinity Church, 4 Sandf . Ch. 699 ; Jackson ex dem. v. Mur- ray, 7 Johns. 6. ' Cited supra as Duke's Laws. ' Reports of Surveyor-General of N. Y. in 1733 and of the Governor of N. Y. in 1749 ; Doc. Hist, of N. Y., I., 375, 749. 14 SOCAGE TENUEE. tenures in JTew York into the tenure in free and common socage prescribed by the duke's patent from Charles II. Thereafter, in contemplation of law, there could be no further Dutch tenures.' The conquest operated in itself to change the lord paramount of all the former fiefs in New Netherland. Independently of this, as the Duke's Laws required the Dutch patents to be confirmed under penalties for their non-confirmation, the presumption of law is, that all the Dutch owners complied with the requirements of the Stat- ute : " Omnia prmsumunter rite esse acta donee prohetur in Gontraria." This is especially true now after so great a lapse of time. The consideration of these facts would be of little importance, were it not that the courts of justice of New York have in this century treated certain easements connected with the ancient Dutch holdings as if in law they were quite different from like easements connected with those lands which were patented only after the year 1664. But this distinction will be noticed at a subsequent place." The introduction of the socage tenure in the manner pointed out would, with aU the contemporary incidents of that tenure, have been unqualified after the year 1664, had it not been for the articles of capitulation signed by the Dutch and the English on August 27th of that year.' The articles of capitulation were entirely within the province of military commanders, and did not require the sanction of their respective sovereigns." By these articles the Dutch were guaranteed " their own customs concerning their in- heritances.'" A subsequent naturalization of the Dutch antenati, however, followed. Naturalization would have ' But see People v. Clarke, 10 Barb. 120, 141. The Dutch grants to towns were confirmed after the conquest. Denton v. Jackson, 2 Johns. Ch. 320 ; North Hempstead v. Hempstead, 2 "Wend. 109. These grants were confirmed according to the Duke's Laws. » Infra, p. 65. * Appendix No. I., 2 R. L. of N. Y., anno 1813 ; Doc. rel. Col. Hist. N. Y II., 250. ■» Wheaton's Elements of International Law, 478 ; Chitty's Prerog. of Crown, 29. ' Art. XI. TREATY OP WBSTMIlSrSTEE. 15 destroyed the status of the Dutch antenati under the arti- cles of capitulation, had it not been for a written declara- tion of the duke's governor to the contrary.' This declara- tion was probably in law a mere sponsion. On July 30th, 1673, the Dutch conquered New York, and during an interval of fifteen months again occupied the prov- ince, restoring their own laws as far as possible ; but under the sixth article of the Treaty of Westminster, signed Feb- ruary 9/19, 1674, the province was finally surrendered to the English." On November 9th, 1674, the duke's governor issued a proclamation confirming " all former grants, privileges, and all estates legally possessed by any under the Duke of York before the late government."' This was in accord with the law of postliminy, the intervening conquest oper- ating as a mere suspension of rights. By reason of this proclamation the Dutch antenati were assumed to have preserved their rights under the articles of capitulation of 1664.' A subsequent and general act naturalizing all resi- dents of foreign birth, passed in 1683,' probably avoided the necessity of resorting to the guarantees of the articles of capitulation. At all events, when the distinction between the conquered and the conquerors ceased, the articles fell into desuetude, except in so far as they related to the division of inheritances among the Dutch and to the prop- erty and the government of the Reformed Dutch Church. To this extent, and ex gratia, the Dutch enjoyed a priv- ileged status for some time after the year 1674.' By the Treaty of "Westminster, in 1674, the right of the English Crown to the province again rested on a distinct surrender and cession by the Dutch. In order to quiet the title of the Duke of York, Charles II. now again granted to ' Doc. rel. Col. Hist. N. Y., III., 74 ; Sons of Liberty in N. Y., pp. 14, 16. ' Diimont, Corps Diplomatique, VII., 353 ; the seventh clause confirms the Treaty of Breda. ' Doc. rel. Col. Hist. N. Y., III., 337. * JMd., v., 495. » MS. roll State Library, Albany, N. Y. « Van Schaack's Laws N. Y., I., 83, 97 ; Collections of N. Y. Hist. Society for 1868, p. 183 ; but see Humbert v. Trinity Church, 34 "Wend. 587, 634 ; Canal Commissioners v. People, 5 Wend. 433, 446. Vid. Int'd. to the Grolier Bradford's N. Y. Laws of 1694, xlix., xcix., for further discussion of these articles ; and infra, p. 64. 16 DUKE OF TOEk's SECOND PATENT. Mm a new patent' in almost the same phraseology as that of 1664. This second grant cured all the original defects in the first patent, which had been made when the province was held by the Dutch adversely and as a fief of the States- General of Holland. The lord proprietor now caused the "Book of Lawes," known as the "Duke's Laws," to be promulgated throughout the province, and in both the Eng- lish and the Dutch portions. The sections of this code relat- ing to real property, with few exceptions, only affirmed rules of law otherwise in force as relating to the English socage tenure. As the Duke of York held the province by the socage tenure, all the incidents of that tenure became the fundamental law of real property in New York," without the necessity of any supplementary legislation, in the New York " Book of Lawes." The " Book of Lawes" of 1664 declared that no sale or alienation of lands should be holden good in law, " except the same be done by Deed in vrriting, under hand and Seal, and delivered and possession given upon part, in the name of the whole." . . . "Unless the deed be Acknowledged and Recorded, according to law.'" 'No conveyance was good where the grantor remained in possession, except against the grantor and his heirs, unless the deed was recorded.* This provision, at first confined to Long Island, then the more populous part of New York, doubtless became general after 1674, when the Duke's Laws were again put in force. Thus prior to the Statute of Frauds (29 Car. II., c. 3) estates in socage lands could not be conveyed in New York by livery of seisin without deed under seal acknowledged and recorded under the Duke's Laws.' The Duke's Laws prescribed the forms of deeds creating an estate of inher- ' Learning and Spicer's N. J. Grants, 41 ; Martin «. Waddell, 16 Peters, 367 ; Chalmers' Col. Opin., 76, 77 ; Pea Patch Island Case, 1 Wall. Jr., U. 8. Cir. Ct. R„ Appendix, p. cxix. ; People i>. Livingston, 8 Barb. 291 ; Corfleld «. Coryell, 4 Wash. Cir. Ct. R. 371 ; Mahler v. Transportation Co., 35 N. Y. 853, 356. » Canal Commissioners «. The People, etc., 5 Wend. 423, 446 ; 17 Wend. 571, 587 ; Humbert v. Trinity Church, 24 Wend. 587, 623. ' Duke's Laws of 1664 ; Title, " Conveyances, Deeds, and Writings." *IMd. « Infra, p. 19. FIEST ASSEMBLIES. 17 itance, or an estate tail ; but the nature of such legislation wUl be hereafter considered.' A resolution of the assembly of 1691 declaring all prior laws under the Duke of York void," if it was effective in law, left the province without any law requiring conveyances of estates of freehold to be in writing. The Statute of Frauds, ' as it was passed in England only in 1677,- had strictly no force here.* It was never- theless incorporated in the New York Revision of 1787 by Messrs. Jones and Varick, who were confined to such statutes of England as were in force in the province of New York.' Under the lord proprietor the freeholders of the province chose the first legislative assembly, which sat in the years 1683, 1684, and 1685.° Several important statutes affecting real property were passed by these assemblies. That one known as the " Charter of Libertys of 1683" evidently contem- plated a change regarding inheritances, and attempted to make the devolution of titles to land altogether dependent on the customs and practice of England, notwithstanding the ar- ticles of capitulation to the contrary. ' Under this act estates of femes covert could be conveyed only by deed, acknowl- edged in some court of record, " she being secretly exam- ined if she doth it freely.'" But this statute was of brief operation, being disallowed by the Duke of York." Under " an act of settlement" passed November 2d, 1683, those who had lost their deeds, but were in actual possession for four years of lands, without any adverse claim thereto, were declared the owners of such lands after fifteen months. " An act to prevent frauds in conveyanceing of lands," passed November 3d, 1683, declared that after December 1 Infra, p. 58. ' Infra, p. 21. ' Supra, p. 16. * The Statute of Frauds first made writings essential to the transfer of free- hold estates. » Sec. 35, Const, of 1777 ; 1 J. & V., 381. « Trustees of Brookhaven v. Strong, 60 N.. T. 56, 68 ; Burtls «. Burtis, 1 Hopkins Ch., p. 563. ' Supra, p. 15. " Constantine v. Van Winkle, 10 N. Y. 433 ; 6 Hill, 177 ; Jackson ex dem. Woodruff v. Gilchrist, 15 Johns. 89, 113 ; Humbert v. Trinity Church, 24 Wend. 587, 625 ; Albany Fire Ins. Co. v. Bay, 4 N. Y. 1, 23. » Albany Fire Ins. Co. v. Bay, 4 N. Y. 1, 24 ; Doc. rel. Col. Hist. N. Y., III., 357, 370. 18 WILLS. 25th, 1683, no conveyance of lands, where the consideration exceeded jfifty pounds, should be of any force or validity in law, unless such conveyance be acknowledged, entered, and recorded in the county where such lands "doe lye, within six months after the day of their respective dates." An act of October 22d, 1684, declaring " of what age Lands may be passed away and Guardians chosen," also provided that aU persons of the age of twenty-one years might devise their lands. The Duke's Laws of 1664 had distinctly recog- nized the power of making wills as one then existing in fact," and such recognition accorded with the law in force ; for by Statute 32, Henry VIII., c. 1, socage lands were in England devisable, and this statute was in force in New York as part of the law of the socage tenure, introduced by the Duke of York's patent. The socage tenure then introduced in New York the antecedent English law rela- tive to that tenure, including the power of devising lands.'' The articles of capitulation reserved the right to will lands of the antenati according to the former Dutch law ;" but, as already stated, this right ultimately lapsed, and the law relative to the English socage tenure thenceforth prevailed in New York. In 1684 was passed " An act for quieting of men's estates," etc., which directed that no resident of fuU age and sui juris should thereafter make any entry on real estate, but within " seven yeares" after the right accrued, and in default of such entry within that time, such person was excluded from such entry.* These were brief periods for prescriptions or limitations, but at that time the great desire was to quiet the titles disturbed by the several recent wars. Possession in new countries is allowed to play an important part in the acquisition and even in the devolution of title to real property. * The only other acts of this period ■ Title " Administration ;'' Jackson ex dem. Smith «. Hammond, 3 Caine's Cases, 337. ' Jackson ex dem. Smith «. Hammond, 2 Caine's Cases, 337 ; Co. on Litt., Ill, B., Note 4. ' Supra, p. 14 * Compare Act of Oct. 30th, 1710, 1 L. & S. 84, chap, ccxvi., and the Eng- lish act, 31 Jac. I., c. 16. » Chancellor Livingston in Street's " Council of Revision," p. 225. KING JAMES II. 19 necessary for us to consider are entitled ''A Bill concerning former Mortgages," and " A Bill to prevent Deceipt and florgerye," passed in October, 1684. The former act vali- dates certain mortgages and recites th.e custom of the an- cient inhabitants of this province, commonly called Dutch, to use and exercise the methods of their own nation in making mortgages of lands, which is not according to the usage and method of England and the " now established lawes of this province." The "Act to prevent frauds in conveyanceing of Lands" declared "that no grants, deeds, mortgages, or other conveyances whatsoever of any lands or tenements within this province shall be of any force, power, or validity in Lawe, unless entered and recorded in the Register of the County" where situated. Before re- corded they were to be acknowledged before a justice of the peace or proved by sufficient witnesses, and certificate thereof endorsed on such instrument. The " BUI to prevent Deceipt and fforgerye" amplified the " Act to prevent frauds in con- veyanceing of Lands." On February 6th, 1685, the Duke of York ascended the throne as King James II. The legal eif ect of the accession of the lord proprietor was to merge his private estate in his Crown. In other words, he continued to be possessed thereof only injure coronce."^ The province was no longer vested in him, in his own right, but in some manner it was annexed to the Crown, and vvent with it, as the franchises, liberties, and jurisdiction thereof, when they came to be in the hands of him that had the crown and jurisdiction royal, were extinguished by the common law." Thenceforth the province was a Crown province ; the king was the lord paramount,' and aU titles to lands were derived from him.* As the possessor of aU vacant lands not granted to any in- dividual, the Crown itself was subject to certain rules of law touching the alienation of Crown lands, which must be ' Comyn's Dig. Tit., " Prerogative ;" Bogardus v. Trinity Church, 4 Sandf . Ch. 633, 726. * Duchy de Lancaster, Plowden, 313 ; Calvin's Case, 7 Reports, 13 ; the Banker's Case, Skinner, 601, 603 ; Doc. Hist. N. Y., I., 880, 753 ; Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 726. ' Co. on Litt., 65a. * People i>. Livingston, 8 Barb. 376 ; People v. Trinity Church, 33 N. Y. 46. 20 SUCCESSION TO THE CKOWN. secundum jus corona ;' but the Crown miglit delegate gen- erally to the governors of the province by a commission under the great seal the right to convey Crown lands. In practice this was the mode of alienation generally employed in New York before the War of Independence." In October, 1688, William of Orange landed in England, and in December James II. fled the realm. The Convention Parliament resolved by the Declaration of Eights that William and Mary, Prince and Princess of Orange, should be declared King and Queen of England during their joint lives, but with the administrative power in the king. By this act the succession to the Crown was settled on the pos- terity of Mary, and then on that of Anne. Thus New York, with the other plantations, passed to the new sover- eign for Crown provinces as concomitantia of the Crown pursued the line of devolution prescribed for the Crown.' The legal effect of the English Eevolution was analogous to the demise of the Crown ; its prerogatives remained as before, but the right of the new sovereigns to exercise them was deduced from the convention of 1688.* In 1691 the Crown finally gave to the inhabitants of New York a share in their own government," and the right to elect representatives to a legislative assembly. The legis- lative power was thenceforth definitively vested "in the Grovernor, with the consent of the Council and the Assem- bly, or the major part of them." But there was an exten- sive limitation imposed on this right of legislation, for all laws were to be " as near as might be agreeable to the laws and statutes of the Kingdom of England." In practice the Parliament of England exercised the right of extending the operation of its own acts to New York and other plan- tations." But the Assembly of New York after 1691 was the main source of legislation, and to it we look for those modifications of the law of real property which were made prior to New York's independence of the Crown. • cutty's Prerogatives of the Crown, 305. ' The People ■». Livingston, 8 Barb. 253, 276 ; and see p. 35, infra. ' Chitty's Prerogatives, 305. * Hallam's Const. Hist., III., 95 ; Macaulay's England, II., 497, 507 ; III., 26. » Doc. rel. Col. Hist. N. Y., III., 633. ' See Int'd to Grolier Bradford's N. Y. Laws of 1694, p. xcvi. THE "eesolution" OF 1691. 21 It has been shown in what way the socage tenure was introduced in New York, and with it came all the antece- dent English law relating to such tenure, excepting the law relating to remedies and procedure, which was estab- lished here generally by conferring on the courts of New York the jurisdictions and the powers of the ancient courts of England. The extent of the early statute law of New York is much affected by the resolution of the lower house of the first as- sembly, held in the reign of King William and Mary.' This resolution purports to declare all the laws consented to by the General Assembly under the Duke of York void. The declaration, together with the custom of including no laws earlier than 1691 in the various revisions of the provincial laws, has occasioned some doubt about the extent of the early statutes of the province. What could then be the legal effect of this resolution of a single chamber ? If it is to be regarded as effectual in law, then the acts of the New York Assembly begin only with the year 1691. If, on the other hand, the resolution is to be disregarded as ultra vires of the Lower House, the systematic legislation prior to the year 1691 is to be taken as part of the law of the province. The effect of this resolution is much debated, but the tendency of the modern courts is to treat it, at least, as evidential of a re- peal." There is much to be said on both sides, although in the provincial period, the resolution was no doubt inofficious if judged by the law of England.' Many of the laws of 1683, 1684, and 1685 were probably repealed, either express- ly or by implication, by subsequent legislation.* ' Journal N. Y. Assembly, April 34th, 1691, p. 8. " Jackson ex dem. ■». Gilchrist, 15 Johns. 89 ; Constantine ®. Van Winkle, 6 Hill, 177, 181 ; Van Winkle «. Constantine, 10 N. Y. 423, 436. But see Brookhaven v. Strong, 60 N. Y. 68 ; Burtis v. Burtis, 1 Hopkins Ch. at p. 563, and Humbert v. Trinity Church, 34 Wend. 587, 625. " See the authorities cited and this question debated in the Historical Intro, to Grolier Reprint of Bradford's 1694 N. Y. Laws, p. Ixxviii. et aeq.; et infra, Chap. n. * But not aU these laws were repealed by implication— e.^r., the early mar- riage laws of New York prior to 1691 were made the basis of Sir James Mait- land's contest in the Matter of the Lauderdale Peerage, 17 Abbott's N. C. 439 ; L. R. 10 Appeal Cases, 693. But the House of Lords was not com- 22 By the terms of the royal commissions to the Crown gov- ernors, the acts of the Assembly, when enacted and approved by the governors, were valid until disallowed by the Crown.' They ceased to be operative when disallowed, being then void by the very authority under which the Assembly ex- isted.' The Legislature of an English province had no prescriptive jurisdiction like that of Parliament, but owed its energies to the Crown's franchise alone." Although subsequent to 1674, it was not essential to a determination of the rights of socage tenants, and the right of the Dutch inhabitants stood on quite a different legal footing,' the courts have often had urged on them a discus- sion of a profound abstract and political question : Was England's title to New York derived through the right of discovery and occupation, or by means of conquest and cession 1 ' The solution of this great question is sometimes deemed pertinent to the original application of the English common law in New York ; for the English commentators on the text of the law distinguish, in this respect, conquered countries from countries acquired by discovery and occu- pation. They affirm that the common law of England is set in force by legislation only in conquered countries, and intimate that it is in force without any legislation, enact- ment, or ordinance, in the other class of countries." Unfor- tunately their figurative language has crept into adjudicated cases, although the accuracy of their distinction is wholly denied by later jurists. The early English cases certainly pelled to adjudicate the legal effect of the resolution, as the decision rested on other points. > People V. Trinity Church, 23 N. T. 44, 50 ; Bogardus v. Trinity Church, 4 Sandf . Ch. 633, 788. For the course which such acts underwent in Eng- land, see Introduction to Grolier Bradford's N. T. Laws, pp. xcix.-cii. « E.g., Doc. rel. Col. Hist. N. Y., III., 624. ' People ex rel. McDonald ®. Keeler Sheriff, 32 Hun, 563 ; Chitty's Prerog. of the Crown, 86. * Supra, p. 15. ' See note to 17 Abbott's New Cases, p. 491 ; Canal C( mm'rs i>. People, 5 "Wend. 428, 445 ; Canal Appraisers®. People, 17 Wend. 571, 617 ; Bogardus v. Trinity Church, 4 Pai. 178 ; Humbert v. Trinity Church, 24 Wend. 634, 636 ; Overbagh v. Patrie, 8 Barb. 41 ; Levy v. Levy, 83 N. Y. 97, 107 ; Dunham v. Williams, 37 N. Y. 351. « 1 Bla. Com. 108 ; Morgan v. King, 80 Barb. 9. INTEODUOTION OF THE LAWS OF ENGLAND. 23 did not pretend that the English common law was at once in iorce in countries discovered and settled by English sub- jects, but the law of nature was said to prevail there until the Crown erected a formal government," when it prescribed the common law of England as the test of the validity of colonial law. Thus the common law has always been estab- lished in the English colonial possessions where it prevails, only in some direct legislative mode," such as the limita- tions contained in the patents and commissions from the English Crown under the great seal of England. Blackstone's theory of such introduction was worked out on the assumption that it corresponded with the presence or the absence of a lex loci of English original.' His own ap- preciation of the application of his theory is shown by his statement, that the American plantations were acquired by England through conquest from the Indians ;' a statement solemnly negatived, without adverting to the fallacy, by the Supreme Court of the United States.' A comprehensive examination of the executive documents and institutions of the English colonies, however, demonstrates that the English common law was imposed on all the English- speaking colonies by express limitations of the delegated authority to govern the subjects of the Crown. These limitations contained a definitive provision to the effect that such common law must be the exemplar, in so far as it was suited to the new conditions of society ; ' thus conferring on the colonial judiciary the power of rejecting the portions of the common law having no relation to the new social condi- tions. Even this reservation Blackstone imports into his theory, but without any mention that it was due to the pre- rogative action of the Crown itself.' ' Button V. Howell, Shower's Parliamentary Cases, 24, 31 ; Daws v. Pindar, 1 Freem. 175 ; 2 Mod. 45 ; 3 Keb. 26. ' Stokes' Constitution of British Colonies, 81, foot-note. ' Freeman «. Fairlie, 1 Moo. Ind. App. 324. * 1 Bla. Com. 108. 5 Johnson «. Mcintosh, 8 Wheat. 543, 583 ; Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1, 7. ' All the patents, commissions, and instructions issued by the Crown con- tained this limitation. See Appendix No. I., infra. ' The confusion on this subject is very well shown by the arguments of 24 EEMBDIES AND PROCEDtTEE. It has been already stated that the socage tenure was intro- duced by force of the Duke of York' s patent of 1664, and that such tenure necessarily included the rules of law relative to the socage tenure.' The law concerning remedies and pro- cedure came in gradually with the establishment of courts of judicature possessing jurisdictions known to the tribunals of England. The great ultimate rule that, the common law of England, in so far as it was suited to the conditions of the new country, was to be the exemplar of all colonial law, was a limi- tation contained in the Duke of York's own patent.' This limitation, often repeated in the subordinate commissions to the colonial officials, necessarily set in force in New York the law of England, in so far as it was suited to the new con- ditions ; ' and therefore the decision of the question — " Whether New York became a Crown possession by means of discovery and occupation, or through conquest and ces- sion?" — seems of minor importance,* notwithstanding its grave consideration in several cases of the first magnitude." counsel in Journeymen Cordwainers' Case, Tates' Select Cases, 111, and In the Canal Cases, 5 Wend. 423 ; 17 iUd. 571. ' Swpra, p. 13. Martina. Waddell, 16 Peters, 367 ; Jackson ex dem. Smith v. Hammond, 3 Caines Cases, 337. ' Appendix No. I., infra. ' Canal Comm'rs v. People, 17 Wend. 571, 587 ; Journeymen Cordwainers' Case, Tates' Select Cases, 111. < Canal Comm'rs v. People, 5 Wend. 438, 446 ; 17 Wend. 571, 584, 587 ; cf. Martin v. Waddell, 16 Peters, 367. ' Jackson ex dem. Woodruff ®. Gilchrist, 15 Johns. 89 ; Bogardus v. Trinity Church, 4 Pai. Ch. 178 ; Humbert ». Trinity Church, 24 Wend. 587 ; Dun- ham V. Williams, 37 N. Y. 251 ; Levy v. Levy, 33 N. T. 97, 107 ; and see note to 17 Abbott's New Cases, 478 ; cf . Mortimer o. N. Y. El. E. R. Co. 6 N. Y. Supplement, 898 ; 57 N. Y. Superior, 509 ; Hine «. N. Y. El. R. R. Co., 7 N. Y. Supp. 464. CHAPTER II. THE SOCAGE TENUBE IN NEW YORK. The law of real property in tlie province of New York is not to be understood without reference to the contemporary law of England. In the year 1664, when the patent to the Duke of York expressly introduced here the ancient socage or non-military tenure of England/ the Statute 12 Car., II., c. 24, had but recently abolished feudal tenures in England.' The feudal system survived this statute only in theory and because it had been the basis of the law relating to land. Feudalism has been well defined as a social organization, based on the ownership of land and the personal relations created by the ownership of land ; a state of things in which public relations were dependent on private relations, and where political rights depended on landed rights ; the land itself being concentrated in the hands of a few. The essence of English feudalism is found in the fact that all land not in the hands of the Crown itself was held of the Crown by persons in subordination to the Crown. William the Conqueror did not introduce the feudal system into England,' but he certainly brought in that side of it which strengthened the Crown, and he caused all freeholders to take an oath of allegiance directly to himself. Thus the English feudal system had little tendency to create an order of independent vassals who rivalled the king in power and in privilege. The distinguishing feature of English feudal- ism may, therefore, be said to be this : that all the land out- ' Appendix No. I. this volume. ' People r>. Van Rensselaer, 9 N. Y. at p. 338 ; Van Rensselaer v. Smith, 27 Baib. at p. 149 ; et infra, p. 27. ' It is unnecessary to cite authorities, for the recent scientific investigators are all now in harmony on this proposition. See Essays on Anglo-Saxon Law : " The Anglo-Saxon Land Law, " pp. 116-19. Cf. Mr. Butler's note, Co. on Litt., 191a. 26 ENGLISH FEUDALISM. side of the king's demesne was held mediately or immedi- ately of the Crown, on tenures of a military or feudal char- acter. The king thus became the sole alodial owner, the universal successor of the earlier individual proprietorship ; the tenant had only an estate in the land. Under William the Conqueror, the theory that all land was held by a grant from the Crown became a fact ;' under his immediate suc- cessors the military tenures assumed a systematic shape. Thereafter the English law of feuds developed on lines of its own, and was little influenced by the doctrines of the foreign feudists. " An unlimited freedom of alienating socage lands was soon attained by socage tenants.' The intricate practice of alienating lands through subinfeudation was destroyed by the Statute " Quia Em/ptores''' (18 Edward I., c. 1). When land was again sought to be rendered inalien- able by means of the common law doctrine of conditional fees, and later on by the Statute Be Bonis Gonditionalibus, which founded the species of inalienable estates called "estates tail,"* the doctrines of discontinuance and war- ranty frustrated the tendency. In the course of time a judicial fine was made a bar to the claims of issue in tail, and a common recovery to the claims of both the issue and those in remainder and reversion.' These were peculiari- ties of the law of England, and had no relation to the con- tinental system of feuds. The Statute of Uses (27 Hen. YIII., c. 10) changed the entire mode of conveying real property in England, and materially modified the antecedent law of feudal tenures, which was predicated of one great conception : that there 'Wright's Tenures, 58, 137; Madox's "Baronia Anglica," 25; People ii. The Rector, etc., Trinity Church, 32 N. T. 44, 46. ' Neither Littleton nor Coke mentions, or even alludes to, the doctrines of the feudists ; although the learned men who have illustrated their works find many analogies and sources of English land law in the doctrines relating to fiefs. See Tomlin's Preface to his " Ly ttleton. " Cf . Pinlayson'a note, 1 Reeves' Hist. Eng. Law, 259. 5 Digby's Hist. Real Prop., 199 ; hut compare Bigelow's Int'd. to " Placita Anglo-Normanica," p. xliv. * The word " tail" is derived from the French verb meaning, to cut. Cf. Malory's "Morte d'Arthur," IL, 81, " La-cote-male-taile." ' Mr. Butler's Preface to Coke on Littleton, paadm ; 32 Hen. VIIL c. 28 and c. 36. 8UBVEESI0N OF FEUDALISM. 27 should always be a tenant or a succession of tenants capable of rendering to the lord of the fee those services which were due from the legal occupant or tenant of the land. Before the Statute of Uses freehold estates in land could not be granted to vest on a future day or on a future event, for such a grant might defeat the concept denoted. The Stat- ute of Wills (32 Hen. VIII., c. 1, and 34 and 35 Hen. VIII., c. 5), while carefully preserving the rights of feudal supe- riors, rendered socage lands iinally devisable.' Thus step by step the tenants of the land were being converted into the actual owners of the soil, and the theory of a feudal tenancy was disappearing. The subversion of the feudal law was very gradual. In the reign of James I. a project was brought forward for the purpose of relieving tenants of lands in England from the familiar burdens then incident to tenure. After the abey- ance of the Crown, the Long Parliament, in the year 1645, consummated this reform, which subsequent to the restora- tion of the monarchy was confirmed by the Statute 12 Car. II., c. 24 (a.d. 1660), turning the military or feudal tenures into tenures in free a,nd common socage," the best of the ancient English tenures.' This statute discharged the soc- age tenure also from all its feudal incidents, excepting those known as fealty, rent, relief, and escheats." Thereafter, where no rent was payable, except a trifling quit-rent, and no value attached to the service, there was little motive for the retention of the ceremony of fealty. The socage tenant was for all practical purposes the owner of the soil, and fealty to the Crown soon lapsed into a mere natural allegi- ance of the subject." When New York passed to the Duke of York to be held by the free and common socage tenure, strict feudalism then had virtually disappeared in England from this tenure.' ' Supra, p. 18. ° See Mr. Hargrave's Notes Co. on Litt., 85J and ibid., note 3, 108a. ^ The treatises are replete with descriptions of this tenure and its incidents. Co. on Litt., 85J, et seg. * Infra, p. 33. 5 Infra, p. 36. * Van Rensselaer v. Smith, 27 Barb, at p. 149 ; People «. "Van Rensselaer, 9 N. T. at p. 338. 28 But the Statute 12 Car. II., c. 24/ had not declared feudal- ism abolished ; it had simply deprived the system of life, leaving its skeleton for juridical purposes. There was yet in legal contemplation no such thing as an absolute owner- ship of land. Every landholder in New York deriving an estate from the Duke of York was only a tenant ; the free- holder was then literally the tenant of an estate worthy of a freeman, which could not be an estate for less than life. A fee simple, descendible to a man's heirs, meant still the feodum simplex of Littleton,' but it did not mean the " feud" of the Conquest. The latter was a vanishing con- ception. Whether or not we disregard the Dutch claims to JSew Netherland, and their subsequent cessions of it to the Eng- lish Crown, it is universally true that in America the King of England, under his common law prerogative as the univer- sal occupant of derelict lands,' became the source of title to vacant lands in all the thirteen colonies and the lord para- mount here, as in England. * But the nature of the royal title and of the grant to the Duke of York and the subsequent devolution of the latter' s private rights under it have been already considered.' The legal estate of the immediate grantee of King Charles II. may, however, be briefly reviewed, premising that its nature is very much simplified by the fact that no other tenure is to be considered besides the common law tenure in free and common socage, as it stood in England prior to the year 1664. While the grant from King Charles II. to the Duke of York is largely patterned on the ancient pala- tine jurisdictions," the Statute 12 Car. II., c. 24, which acted ' Vid. note 3, Co. on Litt. 93J, for principal changes made by this statute, which was very inartiflcially drawn ; Challis, 21 ; Co. on Litt. 108a, notes ; Madox's " Baronia Anglica," 238, 239. ' Co. on Litt. la. ' Supra, p. 19 ; Mitchel ». U. 8., 9 Peters, 748 ; Martin v. Waddell, 16 Peters at p. 436 ; People v. The Rector, etc., of Trinity Church, 22 N. Y. 44, 46. * Challis' Law of Real Prop. 4 ; Jackson ex dem. ». Ingraham, 4 Johns. 163, 183 ; People «. Clarke, 10 Barh. 120, p. 141. ' Supra, pp. 10, 19. « 1 Bla. Com. 109 ; Stubbs' Const. Hist, of Eng,, I., 270 ; Madox's " Baronia Anglica," 150 ; supra, p. 11. EAKLY MANORS IN NEW YOEK. 29 on the king himself, gave him choice of this tenure only.' His grantees in America could consequently create such estates in land as socage tenants in England could do after the statute in question ; unless the king licensed them to do otherwise ; for it is said that the king himself was not for some purposes within the Statute of Quia Emptor es."" But this exception will be referred to when the manors of New York are considered.' During the existence of the pro- prietary goyernment, or before the accession of James II., the Duke of York, being a subject, was within the Statute of ^ia Bmptores.'' His grantees, therefore, held of the Crown. ' This was the result of the Statute of Quia Emptor es, which after great fluctuation of opinion has now, in an adjudication of unusual weight and learning, been decided to have been operative in New York after the year 1664.° Consequently, as it has been said, the Duke of York him- self could not have granted land in this province to be held in fee farm.' This naturally brings us to the consideration of the manors created under the proprietary government of the Duke of York. There was certainly one, that of Fordham, erected under the lord proprietor in the year 1671. The erection of a manor with its court baron ordinarily imports a tenure by suit and services of the lord of the manor ;° hence the erection of a manor is prima fade prohibited by the Statute of Quia Emptores. It was a grave question, therefore, whether the Duke of York's own patent author- ized him to grant the right to have a manor in New York, " Challis, 23 ; Co. on Litt., 93J, note 3. ' People ®. Van Rensselaer, 9 N. Y. at p. 334 ; De Lancey v. Piepgras, 138 N. Y. at p. 39 ; sed vid. Verschoyle v. Perkins, 13 Irish Bq. 73, 78. ^ Infra. * Sir Edward Northey in Doc. rel. Col. Hist. N. Y., V., 370 ; Penn v. Lord Baltimore, 1 Ves. Sr. 444. » Chalmers' Col. Opin., 143, 143, 149 ; Van Rensselaer v. Hayes, 19 N. Y. 68. « Van Rensselaer v. Hayes, 19 N. Y. 68, overruling De Peyster v. Michael, 6 N. Y. 467, and Van Rensselaer v. Smith, 27 Barb. 104 on this point. ' Doc. rel. Col. Hist. N. Y., V., 370 ; Chalmers' Col. Opin., 144, 149. *Comyn's Digest "Copyhold," Q. 1 ; 2 Rol. 120; Delacherois «. Dela- cherois, 11 Ho. L. Cas. at p. 79 ; Glover «. Lane, 8 T. R. 445 ; Verschoyle «. Perkins, 13 Irish Eq. 73, 73. 30 MANORS tJNDEE THE CEOWN. at least, without express license from the Crown. An ex- amination of the Fordham manor grant — passed under the lord proprietor— wlU, however, disclose that it mentions an existing Dutch "dorp," or village. As elsewhere shown, the theory of feuds was extensively applied to the towns of Few Netherland.' The existing Dutch " dorp" may, therefore, have been made in this instance the foundation of a grant, and only conformed to the socage tenure of the duke's patent. The " colonie" of the Van Rensselaers was certainly a sub-fief created by the former Dutch Grovern- ment, and protected by the articles of surrender without the necessity of any grant by way of confirmation. How- ever, these manor grants were confirmed in 1691 by an act of the Assembly.' The later manor grants being made out of Crown lands, after the Duke of York's accession to the throne (February 6th, 1685), stand on quite a different legal footing. The private estate of the proprietor had then merged in his Crown.' The right of the Crown to create manors in Crown lands, not in tenure prior to 18 Edward I., has at last been definitively intimated, if not held in New York.' The pre- rogative of creating manors was frequently exercised by the Crown governors subsequent to 1685," and the manors thus granted were recognized as lawfully existing by the As- sembly of the province. They were thus validated to some extent ;° but these modern manors, erected after 1664, were freehold manors, not feudal manors, and the seigniories ' Int'd. to Grolier Bradford's N. T. Laws of 1694, p. xxx. and note 4, p. cvii. ' Bradford's N. Y. Laws (edition of 1694), p. 6 ; People «. Van Rensselaer, 9 N. T. 391, 346; People ®. Livingston, 8 Barb. 391; Robins v. Ackerly, 91 N. T. 98, 104 ; Lowndes «. Huntington, 153 U. S. 1, 36. " Supra, p. 19. * People D. Van Rensselaer, ON. T. 391, 330; Van Rensselaer v. Hayes, 19 N. Y. 68 ; De Lancey a. Piepgras, 138 N. Y. 36, 39. ' People V. Livingston, 8 Barb. 358 ; United States ». Arredondo, 6 Peters, 727 ; Doc. rel. Col.' Hist. N., Y., V., 650. « Delaclierois v. Delacherois, 11 H. L. C. 63 ; Bradford's N. Y. Laws (edit, of 1694), p. 6. It is a question whetlier Rensselaerswyck and the Manor of Livingston were not by virtue of several acts of the Provincial Assembly made political corporations for some purposes ; and see De Lanoey «. Piepgras, 138 N. Y. at p. 37. SEVERANCE OF MANOR LANDS. 31 were fully within the Statute 12 Car. II., c. 24 ; though the lord of the manor might, as any other freeholder, make a grant in fee simple reserving rent forever, which was valid as a rent charge." The freeholder under the lord of the manor could not create a further tenure of himself, unless the lord of the manor and the king both consented." After a grant in fee simple of the demesne lands of a manor (at least without reserving suit and service), the lord of the manor could not claim that they were part of the manor, for they were clearly severed, although the rents and dues remained.' In this way the grantee of the lands was often enfranchised or rendered free of the suit and custom of the manor. Of the origin, constitution, and history of English manors nothing need be said ; the literature of the subject is too well known.* A further consideration of the manors of "New York is not amiss, if we have regard to the fact that less than a century ago the best part of the agricultural land of New York was embraced within the manor grants," and that the decisions of the courts of New York bearing on the con- tractual rights of the tenants of the manor proprietors fill many pages of our law reports. The erection of these manors, in so far as it had any political design, was, no doubt, intended to form a ready-made government of first instance in then inaccessible districts, remote from the ' Van Rensselaer v. Snyder, 13 N. Y. 399 ; Van Rensselaer v. Ball, 19 N. T. 100 ; Van Rensselaer v. Read, 36 N. T. 558 ; Van Rensselaer v. Slingerlaud, 36 N. Y. 680. Cf. note by Mr. Hargrave, Co. Litt. 144a/ and see Verschoyle V. Perkins, 13 Irish Eq. at p. 78. ' People V. Van Rensselaer, 9 N. Y. at pp. 336, 338 ; cf ., though, Delacherois V. Delacherois, 11 Ho. L. Cases at p. 84. ' Delacherois v. Delacherois, 11 Ho. L. Cas. 63. Springstein v. Schermer- hom, 13 Johns. 357, shows the disappearance of tenure in a New York manor. * See the leading historical authorities discussed in Andrews' "The Old English Manor," Johns Hopkins University Press, 1893. The English law books, especially the Abridgments, Madoz's " Baronia Anglica," etc., are full of the later law of English manors. The Irish manors created by the English kings are very illustrative of the manors subsequently created in the English transatlantic colonies. For a description of the New York manors, except Rensselaerswyck, see Mr. de Lancey's " Origin and Hist, of Manors in the Province of New York." » See Sauthier's chorographical map of 1779, Doc. Hist. N. Y., I. 32 EMPTY NATUEE OF NEW TOEK SEIGNIOEIES. central authority.' These manors, erected after the Statute 12 Car. II., c. 24, abolishing the feudal system, were neces- sarily of a very different type from the manors known to English law, for no manors had been erected in England presumably after the time of King Edward 1." Here there was no such thing as copyhold tenure ; no room for pre- scription within the manors. The manors of New York can only be explained as " seisin of a defined district with the power of subinfeudation therein, and the existence of freeholders holding of the manor, and the right to a court baron, in which the feudatories were judges." ' The New York manors must have differed in their incidents even from those earlier Irish manors erected by King Charles I. , and by his predecessor. King James I., before the reform of tenures.* The grants of the manors in New York con- ferred on the grantee a seigniory only in name, but one devisable and descendible. They were, therefore, fran- chises or incorporeal hereditaments of a very empty nature. The Statute 12 Car. II., c. 24, had taken away necessarily all the feudal relations between the lord of the manor and the tenant, excepting fealty,' relief," and escheats.' These were the only feudal survivals which could have been inci- dent to these modern manorial tenures. Eent of lands within such manors must have depended wholly on con- tract or reservation.' It could not have depended there on tenure or on prescription, for the manors had no tenants at first. In other words, rent sounded in contract and not in render. Therefore, in the manors of New York, especially where estates in fee simple were granted by the proprietor, the seigniories were treated as quite subordinate to rights ' See this subject more fully discussed in Hist. Int'd. to Grolier Bradford's N. Y. Laws of 1694, xxxiv., xcv. • 2 Bla. Com. 92. ' Delacherois v. Oelacherois, 11 Ho. L. Cas. at p. 83. * Verschoyle v. Perkins, 13 Irish Eq. 72. « Co. on Litt., 935, note 3 ; 2 Bla. Com. 86, 176 ; Jackson v. Schutz, 18 Johns, at p. 180 ; Tomlin's Lyttleton, 124. ' Co. on Litt., note 2, 93a ; 2 Bla. Com. 87 ; Tomlin's Lyttleton, 106 ; De Peyster v. Michael, 6 N. Y. 467, 502. ' Cf. Duke's Laws of 1664, title " Lands ;" De Peyster v. Michael, 6 N. Y, 467, 502 ; Atty. Gen'l of Ontario ». Mercer, 8 L. R., Appeal Cases, 767. 5 Mg., Springstein v. Schermerhorn, 12 Johns. 357. LEGALITY OF THE SEIGNIOEIES. 33 acquired by contract. Thus there must have been soon visible, either from inartificial modes of conveyancing nsnally employed in the manors, or else from a desire to enfranchise the lands, a constant decadence of those seigni- orial rights ordinarily conferred by the grants of manors. That this theory is correct seems apparent from a total ab- sence of cases in New York treating of the seigniorial rights, such as enforcement of judgments in the court baron, relief, and escheats of the lords of the manor.' Indeed, all the New York manor cases seem to depend wholly on rights which contract, not tenure engendered •' just as if, in the minds of the legal draftsmen, the seigniories in New York were to be regarded as " reputed manors," and not " legal manors." In no reported case has any one of the New York seigniories ever been expressly adjudicated to be legal ; the cases have gone off on other points." At the present day the seigniories themselves have be- come mere legal traditions, and their original legality, or " constitutionality" to use a more modern expression, will probably never be adjudicated, for the lands have been ren- dered non-manorial and the seigniories have lapsed, al- though originally a large number of manor grants were made by the Crown governors.' In no instance did the sov- ereign himself grant the right to have a manor in New York. The courts have, however, intimated that a grant of a right to have a manor in connection with certain terri- tory did not import any grant of sovereignty in New York, or necessarily include by implication land under water not distinctly expressed in the grant or included in other grants to private persons. ' It has been said that the seigniories in New York were never adjudicated legal. While it would appear at first glance that the legal status of a manor in New York had ' Cf. Att'y Genl of Ontario «. Mercer, 8 L. R., Appeal Cases, 767. ' E.g., Springstein «. Schermerhorn, 12 Johns. 357. ' People V. Van Rensselaer, 9 N. Y. 391 ; Van Rensselaer v. Hayes, 19 N. Y. 68 ; People v. Livingston, 8 Barb. 253 ; De Lancey «. Piepgras, 138 N. Y. 26 ; Van Rensselaer ii. Smith, 27 Barb. 104. * See a list of them, 9 N. Y. p. 306 ; de Lancey's " Origin and Hist, of N. Y. Manors," passim. s De Lancey v. Piepgras, 138 N. Y. at pp. 36, 87, and 38. 34 NON-MANOEIAL LANDS. been conclusively adjudged, yet the cases on examination are not perhaps final. The case of the People v. Van Rens- selaer' was an action of ejectment, involving the validity of the Crown grant, which incidentally confirmed the seigni- orial rights of the ancient manor proprietor. The grant of the land was held valid and sufficient to vest a title, even if the grant of a right to have a manor was illegal or ultra vires of the Crown. Judge Denio, however, ex- pressed an opinion of very great weight in favor of the ab- solute validity of the seigniory, and he affirmed the power of the Crown after the Statute of Quia Mnptores to license his immediate tenant to create a tenure of the latter, pro- vided the land was not in tenure prior to 18 Edward I. This opinion he subsequently reiterated in the case of Van Rensselaer v. Hayes ;' but again the validity or constitu- tionality of the seigniory of Rensselaer was not necessarily involved in the judgment, as the case was simply one to enforce a covenant running with the land in the nature of a rent charge. The opinions of Judge Denio have, how- ever, been deemed quite conclusive of all the points dis- cussed by him, and they are certainly of the highest order. They even anticipate an intimation' that the dispensing power of the king could not be exercised after the BiU of Rights (and that, therefore, the Statute of Quia Em/ptores became generally operative when the dispensing power be- came illegal), by a careful distinction between the legal and the illegal prerogative of dispensing with statutes.* But the opinions speak for themselves and require no lauda- tion. The vaster body of the lands of the province lay without the manors, but much of this non-manorial land was then vacant, wild, and forested. Under the Duke of York the grants and confirmations show that the tenure of this land was intended to be of the lord proprietor ; but as there was no non obstante clause in the duke's patent from King ' 9 N. Y. 291, to the contrary of De Peyster ■(>. Michael, 6 N. Y. 467, and Van Rensselaer ®. Smith, 27 Barb. 104. » 19 N. Y. 68. ' In Verschoyle v. Perkins, 13 Irish Eq. at p. 78. ■* People e. Van Rensselaer, 9 N. Y. at p. 385. QUIT-RENTS. 35 Charles II.,' the Statute of Quia Umptores was necessarily in force here as part of the socage tenure limited by the patent, and the grantees therefore held of the Crown direct." As the lord proprietor soon succeeded to the Crown, and the quit-rents were annexed to it, while the un- granted lands passed to and with the Crown, this distinc- tion became unimportant.' After 1685, when the prov- ince devolved on the Crown, the grants of lands were (with two exceptions under the great seal of England) made by the Crown governors under the great seal of the'province,' and such grants are now adjudged to be plenary evidence of the royal grant itself, as well as of the governors' author- ity.' The grants usually reserved certain quit-rents or rents in lieu of all other rents," but their reddenda show that t^ere was little uniformity in the amount of the quit- rents until Queen Anne's time. At first the reddendum, was "paying the usual rents of new plantations," after- ward "paying such duties as shall be constituted and or- dained." But Queen Anne directed the quit-rents to be made not less than 25. ^d. per one hundred acres. ' Thence- forth the amount did not vary until the War of Indepen- dence, when the quit-rents passed to the State government and were ultimately commuted.' ' See Verschoyle ». Perkins, 13 Irish Eq. 73, for example of a non obstante clause. « Sir Edward Northey in Doc. rel. Col. Hist. N. Y., V., 370 ; Chalmers' Colo. Opinions, 143, 144, 149 ; Van Rensselaer t. Hayes, 19 N. Y. 68. " Supra, p. 19. * People V. Livingston, 8 Barb, at p. 279 ; Bogardus v. Trinity Church, 4 Sandf. Ch. 734, Doc. rel. Col. Hist. N. Y., V., 650. 5 Grill v. City of Rome, 47 How. Pr. 398 ; People v. Schermerhom, 19 Barb. 540 ; United States v. Arredondo, 6 Peters, 691, 729 ; Martin v. Waddell, 16 Peters, 427 ; People v. Livingston, 8 Barb. 353, 380 ; De Lancey «. Piep- gras, 188 N. Y. 26, 43 ; Brookhaven v. Strong, 60 N. Y. 56. 6 De Lancey v. Piepgras, 138 N. Y. 39 ; 3 Bla. Com. 43 ; Hatton v. Waddy, 3 Jones, Ir., 548, 549. The use of this term " quit- rents" shows that the palatine origin of the province always recurred to English lawyers. " Quit- rents' ' were especially rents in manors. A proprietary government was a feudal seigniory. Penn «. Lord Baltimore, 1 Ves. Sr. 444. 'Report of Surveyor-General of the Province, Doc. Hist. N. Y., I., 377; Doc. rel. Col. Hist. N. Y., V., 653 ; ibid., V., 368, 650. * They undoubtedly passed by virtue of the Revolution itself and the sub- version of the royal authority. A " resolve" of the Provincial Convention of 36 12 CAE. II., c. 2i. The grants by letters patent were in form exceedingly simple, being little more than the primitive deed of grant of early English institutions.' There was thus visible in law a return to a period when the king himself made grants of territory to his followers, although in New York the grants were to emigrants and on the presumption, although not always on the condition, that the land should be tilled by them." The return to a state of things so primitive in English law made the application of the Statute of Quia Mmptores' to the manor proprietors in New York a very difficult task.' The Statute 12 Car. II., c. 24, explains a socage tenure of the king himself.* This great statute turned lay tenures into free and common socage, and precluded the king from creating any other tenure. This being so, when the king made patents of lands tenendum in free and com- mon socage and not in capite, the seigniorial rights of the king were not essentially different from those of other manor or palatine proprietors, where the land was held by the reformed socage tenure." The royal prerogatives, it must be remembered, were quite distinct from the seigni- orial rights of the Crown over tenants of modern socage 1777, however, vested the quit-renta in the State govermnent (Joum. Prov. Conv., I., 554). In 1779 the State Legislature passed an act to the same effect (sec. 14, 1 J. & V. 44 ; De Peyster v. Michael, 6 N. Y. 503). Ultimately the quit-rents were commuted by the State and the tenant of socage lands paid a lump sum. 1 J. & V. 350 ; 2 R. L. 175 ; c. 33 Laws of 1786 ; 1 Webster's Laws, 607, sec. 6 ; c. 33 Laws of 1798 ; c. 333 Laws of 1819 ; De Lancey ». Piepgras, 138 N. T. 40, 41. The Statute of Limitations began to run against quit-rents January 1st, 1830 ; c. 119 Laws of 1813 ; Kent's "City Charter," p. 173, note AAA. ' There is a curious Indian deed to the Duke of York in 1670 for Staten Island. It is evidently based on the assumption that the Statute of Uses, 37 Hen. VIII., c. 10, applied to the transaction, Doc. rel. Col. Hist. N. Y., xiii., 455. The king's grants were always matter of public record. 2 Doc. rel. Col. Hist. N. Y., V., 650. ' Jackson ». Schutz, 18 Johns. 174, 180, 185 ; De Peyster ». Michael, 6 N. Y. 467 ; Van Rensselaer «. Hayes, 19 N. Y. 68. * See supra, note, p. 13 ; et infra, pp. 37, 38. » Chalmers' " Colonial Opinions," 143. The king had some advantages ; for example, the Crown need make no demand for rent. Boroughe's Case, 4 Rep. 73. There were other like distinctions founded on the king's dignity, but not extending his seigniorial rights beyond the rights of other seigniors in the English law. 3 Bla. Com. 260 ; and see Bacon's Abr. Tit. Prerogative, E. 3. TENURE "m CAPITB." 37 lands. Yet the king might distrain for a rent-seek, wMcli in the case of a common person was not distrainable at com- mon law, and out of all other lands of the lessee." The reason that the tenendum of the king's patent to the Duke of York was declared to be "in free and common socage, and not in capite, nor by knight service, yielding and rendering," was, as we have seen, due to the great statute, 12 Car. II., c. 24: it is taken from the mandatory language of this statute. The patent furnishes, therefore, an instance of a tenure of the king, created by the king, and yet not in chief or in capite. Madox thought that the expression " not in capita'' was improperly used in the statute ;' but, as hereinafter explained, this was not a nov- elty, although Challis calls the statute loosely drawn. While before this statute of Charles II. there were socage* tenures in capite," they were not common. The feudal inci- dents of a tenure In capite were most marked, and the de- sign of the statute in limiting future tenures to one not in capite no doubt was to emphasize the abolition of the feudal incidents of a tenancy in capite' and all feudal inci- dents excepting those saved in the statute. In this way future lay tenures were reduced to the level of a tenure by free and common socage sine medio, or when not in capite. As subsequent to the Statute 12 Charles II., c. 24, no other tenure besides that in free and common socage could be created by the king, the tenendum clause of a deed often ceased to express the kind of tenure, as it was clearly surplusage. Prior to this statute a tenant of the king must have been a tenant in capite,^ and his tenure some species ' Bacon's Abr. Tit. Prerogative, E. 3. ^ Ttiis was regarded by the old lawyers as most insensible, for how could there be any other tenure of the king than one in capite. See Madox's " Baronia Anglica," Lib. III. ("Tenure in Capite"), for full discussion of tenure in capite and the efEect of the Statute 13 Car. II., c. 24. 3 Hist, of Exchequer, 432, note, and "Baronia Anglica," 336, 237. < Cf. Challis, 21 ; Hargrave's note 116, Co. onLitt., 108a ; Statute 85 Hen. VIII., cap. 14, sect. 3. ' In the Royal Manors ; vid. infra. « The Stat. 35, Hen. VIII., cap. 14, sect. 3, distinctly permitted the king to create a tenure in socage and not in capite; but see Madox's criticism of this tenure, " Baronia Anglica, " 336, 237. ■> Challis, 4 ; Wright's Tenures, 137. 38 INCIDENTS OF SOCAGE TENUEE. of chivalry or ut de corona ; but even before the statute in question there were examples of socage tenure in capite, or of the king.' Bracton says : " There are in the manor of our lord the king, knights and freeholders by military ser- vice and in free sockage. " " While the Duke of York was proprietor of Ifew York, being a subject, his grantees held of the king by force of the Statute of Quia Emptor es. ' But there was then in the minds of some persons an idea, that after the manner em- ployed in the counties palatine, on which the proprietary governments were modelled,* the tenure might, nan obstante the statute, be of the duke himself. After the proprietor became king this idea was forgotten or ceased to be of con- sequence, as the Duke of York's estate merged in his Crown. The tenure was then clearly of the king. The Statute 12 Car. II., c. 24,' had at that time left only the following feudal incidents connected with lay tenures : fealty, relief, rents certain, and escheats.' Fealty and re- liefs were not in New York exacted in practice.' Fealty' had now a tendency to be confused with allegiance, although they were distinct duties and legal conceptions.' Reliefs on socage tenure were one year's rent or render. They were not due on fee farm grants." Escheats stood upon much their present footing." ' Washburn errs on this point, I., 27— e.g., Elizabeth granted lands " terien- dum de nobis in libera socagio et non in capite," which Madox says was a con- tradiction in terms. Digby's Hist. Real. Prop., 361, note 4 ; Case of the County Palatine of Wexford, Davies (Ir.), 159 ; notes 3 and 5 Co. on Litt., 108a ; cf. Jackson v. Schutz, 18 Johns. 186. ^ Lib. iv., cap. xxviii., f. 209, and see Lord Coke, 2 Inst. 65, and Madox's " Baronia Anglica," " Tenure in Socagio," p. 239. »Doc. rel. Col. Hist. N. Y., V., 370. * Supra, p. 11. <■ This statute marks the end of the feudal system, and " tenures" thereafter were of little importance, except as illustrative of legal rights and remedies. Even Madox seems to think tenures exploded by 12 Car. II., c. 24. « Supra, p. 32. ' Cornell v. Lamb, 2 Cow. 652, 655. 8 2Bla. Com., 53. ' Jackson v. Schutz, 18 Johns, p. 180 ; Co. Litt. 685 ; Hale's Pleas of the Crown, I., 62, 70, and brief of counsel in Cornell v. Lamb, 2 Cow. 652, 654. '» " Olde Tenures," 1 13. Cf. Co. on Litt., 856, note 1. " Att'y Gen'l of Ontario v. Mercer, 8 App. Cases, 767 ; Burgess v. Wheate, 1 Eden, 177, 190, 227. NEW-YOBK GRANTS. 39 The patents or grants of New York lands made by the Crown, although they were of a fee simple, always reserved the rents called quit-rents.' Quit-rents were a perpet- ual charge vested in the Crown and issuing out of an estate in fee." They are said to have been so called because the tenant went quit of all other rents ;' but this etymology may be disputed.' In New York the Crown patents con- tained no provision for a distress, re-entry, or forfeiture upon a failure to discharge the quit-rents.' But in a recent case it has been said that the mere reservation of the quit-rents by the Crown created an estate on condition, and that the rents were "rent service" when due to the Crown, and that their non-payment worked a forfeiture of the estate granted." Counsel in this case went so far as to claim that non-payment entitled the Crown to resume im- mediate possession' without any legal proceedings what- ever,' but the opinion of the court negatives this claim. De Lancey ■«. Piepgras distinguishes between a fee farm grant from the Crown and one between private persons after the Statute of Quia Emptor es.' It validates the one and in- validates the other. The importance of this decision to the subject under consideration justifies a discussion of the points involved in it. ' ^pra, p. 35. ' Hatton B. Waddy, 2 Jones (Ir.), 541, 548, 549 ; and see Judson b. Wass, 11 Johns. 535, for a fee sold subject to quit-rent. ' De Lancey «. Piepgras, 138 N. Y. 26, 39. * Wood's Inst, of the Law of England, 179. ' In the case of an ordinary person such a reservation would have been rent- seek; but because of the tenure of the king fealty was due to him, and the quit-rents were rent service. « De Lancey v. Piepgras, 138 N. Y. 26, 39. ' The counsel's cases cited refer to terms for years. There is a great differ- ence between conditions annexed to estates of freehold and conditions annexed to estates for years. In the latter case upon the happening of the condition the estate ipso facto ceases. In the former there is no cesser of the estate with- out entry or claim for that purpose. ' See People v. Brown, 1 Caine, 416, and English cases cited to the con- trary. ' It will be observed that if the seigniories of New York were constitu- tional, the manor proprietor could create a tenure of himself and was chief lord of the fee. Yet in Springstein v. Schermerhorn, 12 Johns. 357, it was held that such chief lord of the fee had no reversion on a fee farm grant. This would seem opposed to the conclusion in De Lancey v. Piepgras. 40 FEE FAEM. The term " fee farm" originally imported a feud granted to a man and his heirs generally, to be held by the socage ten- ure, yielding therefor to the feoffor and his heirs, success- ors, or legal representatives "white rent" or provisions annually or at stated periods." Bracton mentions feodi flrma," and such feuds are referred to in Magna Charta.' They were not, however, originally classified as estates on condition, or even with conditional fees at common law.* The latter were only limitations in tail before the Statute De Donis. Indeed, most of these classifications of estates are of a date later than the Statute of Quia Mnptores, and it is doubtful whether any of them originally included fees farm which are sui generis." Littleton, for example, says' " that before the Statute De Donis all inheritances were fee simple, for all the gifts which be specified in that stat- ute were fee simple conditional at the common law. " ' Lit- tleton's subsequent classification of " estates on condition" has no relation to fiefs or to pure feuds. He wrote some four hundred years after the Conquest, and belongs to the school of jurists that flourished intermediately or between the days of the English feudists and those of the modern school. When fiefs became in law "fees" or "estates," they were subjected anew to a fuller and more scientific classification by Lord Coke, whose influence lasts till our own day.' In course of time a "fee farm" thus came to be classed with estates on condition, and it designated any fee simple ' Such a grant or feofEment was always holden in socage, for wherever rent was payable, the estate was not strictly feudal, but rather " censual" or "reditual." Such an estate was a fee simple. See Madox's " Baronia An- glica, ' ' 260, and note to Tomlin's ' ' Lyttleton's Tenures, " p. 273 ; also 2 Inst. 43. ' Lib. 1, cap. vi., f. 86. " Magna Charta, Hen. III., cap. xxvii. «2Bla. Com., 110. ' See note " K," p. 372, Tomlin's "Lyttleton's Tenures." ' Litt. Tenures, sec. 13. ' Glanville maKes no reference to feuds on condition or conditional fees, although Lord Coke gives him as an authority, citing Lib. 10, o. 8 ; a refer- ence criticised by Mr. Beam in his edition of Glanville (note, p. 355 of that work), and see note 13 to 2 Bla. Com. 109, "Wendell's edit. * It seems almost an anachronism to import a later term of science into a definition of an earlier institution, and to call a fee farm an " estate on con- dition." DE LANOBY V. PIEPGEA8. 41 reserving a perpetual rent to a chief lord, and in this sense " fee farm" is used by Lord Coke.' According to Littleton, no person except the chief lord of the fee, or him who had the reversion, could, after the Statute of Quia EmptoreSy make a fee farm.' Mr. Hargrave thought rent service or fealty the essential of a " fee farm," and not the quantum of the rent, and that after the Statute of Quia Mmptores no one but the king could make such grant, except by deed empowering the grantor to distrain. This, he said, was good as a rent charge." The right of the king to make a fee farm grant in New York seems clear by all the authori- ties. The real question discussed in De Lancey v. Piepgras is, what was formerly the remedy for non-payment of the quit-rent reserved to the Crown ? The practice in the prov- ince of New York indicates that there was a diflBiculty. De Lancey t>. Piepgras, however, determines* that a fee farm was an estate on condition in the seventeenth century, and this classification finds some support in Littleton's Tenures," if the section does not relate wholly to estates for years where there was a reversion in the lord. It has, nevertheless, been held that the lord had no reversion in a "fee farm.'" There appears to be no adjudged case in the province of New York determining that the Crown grants in fee simple reserving a quit-rent to the Crown were to be construed as creating an estate upon condition.' In limine we notice that Sir Edward Northey regarded the language of the res- ervation contained in these New York grants as very loose,' and as they contained no express condition and no clause for a distress or a re-entry, they were certainly not strin- ' Co. on Litt., 1435 ; but see Mr. Hargrave's note 5, 144a. ' Litt, sections 213-17. ' Note 5, Co. on Litt., 144a ; and see Year Book 11 and 12 Edw. III., f. 501 (a.d. 1338). A fee farm is then a fee simple reserving rent to a chief lord of the fee. A rent charge reserves a perpetual rent to any grantor of a fee simple, and provides for distress for non-payment. * Cf. 2 Bla. Com., 154-55 ; Co. on Litt., 201a. » Sec. 331. ' Infra, p. 43, cases cited. ' Cf. "Lyttleton's Tenures," sec. 325, et seq. « Doc. rel. Col. Hist. N. Y., V., 363. 42 THE king's qtjit-eents. gent. The difficulty in collecting the king's quit-rents was, therefore, very great. Sometimes biUs in Chancery were filed by the attorney-general of the province for a dis- covery and the collection of arrearages,' as there seemed to be no adequate remedy at law." In 1734 the aid of a court of exchequer' was invoked, but this practice soon fell into disuse,* and at a later day acts were passed by the Assembly of the province to aid the collection of the quit-rents.' The total amount of the quit-rents in New York prior to inde- pendence was very small, and in no case was any attempt to enforce a forfeiture for their non-payment declared legal by the Privy Council, then the supreme appellate tribunal for the province of New York. The practice in connection with the quit-rents due to the Crown indicates that the king's remedy in this province was deemed uncertain or inadequate, except by a real action,' the writ of cessavit,'' or by the distresses open to any other lord to whom fealty was due. The king, how- ever, could distrain even for a rent-seek,' and outside of the fee as well as in it.° The reader will remember at this point, that by the common law lands could not be sold for debts ; they could only be extended." An elegit was first given by the Statute of Westminster 2 (13 Edw. I., c. 18)." So ordi- narily before a forfeiture could be enforced the plaintiff ' People V. Rector, etc., Trinity Church, 23 N. Y. at p. 50 ; Doc. rel. Col. Hist. N. y., v., 370, 561, 848. " Doc. rel. Col. Hist. N. Y., V. 11, 357, 499, 981. 'Cf. sec. 7, 33 Car. II., c. 6, and Doc. rel. Col. Hist. N. Y., VI., 4; 3 Bla. Com., 44 et seq. The Supreme Court Justices of N. Y. had an ex- chequer jurisdiction by their commissions, and the Act of 1691, and the ordi- nances continuing the court. See note 2, Grolier Bradford's N. Y. Laws of 1694. Cf. 33 Hen. VIII., c. 39 ; 11 "W. III., c. 2, sec. 154. * Doc. rel. Col. Hist. N. Y., VII., 900. s 1 Van Schaack, 45, 403; c. 53, Laws of 1775. ' Litt. Tenures, sec. 236 ; 2 Bla. Com. 257-60. ' The statute of Gloucester was re-enacted by Jones u. Varicli, showing that they thought this statute in force in New York in 1777 ; 3 J. & V. 108. Cf. Sir Edw'd Northey, Doc. rel. Col. Hist. N. Y., V., 370. 8 Bro. Prerog., 3 Leon, 144, 145. ' 2 Co. Inst., 130 ; Stat, of Marlbridge, cap. xv. ■0 The action at law for debt of rent lay only for rents reserved on terms for years, and did not extend to freehold rents. (Gilbert on Rents, 93.) " Catlin V. Jackson, 8 Johns. 530, 547. COLLECTION OF QUIT-KENTS. 43 must show that there was no sufficient distress ;' and where there was no clause of re-entry reserved for failure to pay rent ejectment could not be maintained.' The remedies of the Crown in the colonies differed little from those of other chief lords of a fee. Such, in the eighteenth century, were some of the apparent embarrassments of a fee farm rent where there was no clause of re-entry or forfeiture ex- pressed therein. The decision in De Lancey v. Piepgras necessarily in- volves the examination of the law of England before the Statute of Quia Emptor es," a period of time prior to the year books which begin in the reign of Edward II.* Yet the only reported adjudication,' precisely in point, seems either to have passed unnoticed or else to have been disre- garded in the discussion in De Lancey «. Piepgras. In the course of the adjudication referred to, the Irish Court held that a fee farm grant by a chief lord of the fee, unaffected by the Statute of Quia Emptores, did not create the rela- tion of lord and tenant, and that the lord had no reversion." This conclusion seems quite opposed to that of De Lancey «. Piepgras ; but the examination of the law of so remote a period in English history is full of difficulties. A fee farm is of great antiquity in English law,' yet Glanville throws little or no light on the law of a fee farm.' Bracton, who wrote probably just before the Statute of Marlbridge (1267), is referred to by Lord Coke for the purpose of showing that before the writ of cessavit per Mennium was given by the Statute of Marlbridge, quit-rents could be collected only by the lord's taking the tenement into his own hands as a sim- ple distress, until he had been satisfied for the rent.' It will ' Jackson ex dem. Van Rensselaer «. Collins, 11 Johns. 1. 2 Jackson ex dem. Van Rensselaer v. Hogeboom, 11 Johns. 163. ' The king stood in little difEerent position from that of any other chief lord of a fee, after this statute, in so far as his seigniorial rights were concerned. * A period wrapt in much obscurity. ' Verschoyle v. Perkins, 13 Ir. Eq. 80, 82. ' And see also People ii. Van Rensselaer, 9 N. T. p. 76 ; Bacon's Abr, Tit. " Prerog.," E. 3 ; and Challis, 64, 65. ' See Magna Charta, regno Hen. III., c. -ss-Yin., feodi firma. 8 Glanville 's is the first treatise on the English law. ' 3 Inst., 295 ; Bract. Lib. iv., f. 2056, and f. 263 ; and see Madox's " Baronia Anglica," 97, " Seizure of land for default of doing service." 4:4 CESSAVIT PEE BIENNIUM. be observed, therefore, that when Bracton wrote, a period at least two hundred years after the Conquest, the right of a lord to resume possession of a fief had already given way to a regular judicial procedure. To use modern language, the fee had already ceased to be purely conditional, ' and the lords could not seize the fee or fief for rent, unless there was a want of chattels.' The Statute of Marlbridge (52 Hen. III., c. 22 ; circ. 1267) took away the lords' power to dis- train the fee." In consequence whereof it is said that the distresses of all inferior lords became purely personal,* and then they were aided by the Statute of Gloucester (6 Edw. I., cap. 4) and Westminster 2d (13 Edw. I., cap. 21), which gave them the writ of cessavit per Mennium." The facts last mentioned seem to preclude the idea that just before the Statute of Quia Emptores a fee farm was, because of the perpetual rent reserved, " a qualified or con- ditional fee." ' Before the Statute De Bonis any feoffment or gift to A and the heirs of his body was " a conditional fee," as contradistinguished from a "fee simple," which was to heirs generally. A fee farm being fee simple could not have been a conditional fee at common law.' Nor was there then any material difference between the king's seigni- ories and those of any other of the domini capitales.' The former were within the Statute of Marlbridge, and the king could not after that statute distrain the fee for non-payment of rent.' He, no doubt, had the benefit of a cessavit in cases where there were no distresses, at least after the Statute of Grloucester," and perhaps before that statute. Two hundred years after the Conquest simple fiefs were not ' Cf. note 84 Co. on Litt, 201a, and Gilbert on Rents, 93. > Cf. Wriglit's Tenures, 194-98. « It bound the king, 2 Inst. 142 ; Gilbert on Rents, 93, 94. * Wright's Tenures, 199. ' Note 251, Co. on Litt., 142a ; see 11 and 12 Bd-w. III. (Year Book), f. 501. ' De Lancey «. Piepgras, p. 39. ' Year Book, 11 and 12 Edw. HI., f. 501. * See Magna Charta, cap. xxxi., Year Book, 24 Edw. III., 55, pi. 40. Ct. Intro, to Bigelow's " Placita Anglo-Normanica," xxxiii. » 2 Inst, 142. " A cessavit seems to have been brought in the reign of King Joh», 2 Inst., 295 ; but see note 231, Co. on Litt., 142a ; Gilbert on Rents, 93. DE LANCET V. PIEPGEAS. 45 easily forfeited by the feudal lords, the great charters had already dealt with this very thing/ and had subjected for- feitures to the regulations of positive law. A failure to pay rent was, however, remediable in several modes. The Court in De Lancey v. Piepgras states that for such non-payment " the king might by inquisition have the estate of the tenant declared at an end/ resume possession, and his original seisin' would be restored unaffected by the previous demise." ' No authorities are cited for this propo- sition, which is much to be regretted ; for, as already inti- mated, there are cases in the modern English books which do not seem to authorize this conclusion. We have to ob- serve that in all events the term " demise," to describe a fee farm, is unfortunate, as the king's patents in question were in no sense leases or demises, but royal grants of a fee simple.' The early law of England knew of no estate or proprietary interest less than freehold. A term of years was an anomalous estate, which never acquired any definite place in the feudal system, and pushed itself into the rank of legal estates only by virtue of the statute (21 Hen. VIII., c. 15).' Even after this statute a fee farm grant was not a demise. Let us recur to the cases not noticed in De Lancey v. Piep- gras, but reported in the English books. Where a clause of re-entry' was expressly reserved in a fee farm grant, the case was quite clear, and if the re-entry was obtained in judicial proceedings, it was said to make void the grant ab initio,' but ' Reeves' Hist. Eng. Law, I., 359, note 1. " This power to liave the fief declared at an end refers to the earliest feudal law (Gilbert on Rents, 92) ; not to the eighteenth century. ' 138 N. Y. 89. The word " seisin" must be here used as meaning " pos- session," and not in its feudal significance, as the completion of the investi- ture of the tenant, admitting him into possession of the feud. See, e.g., Jackson v. Demont, 9 .Johns. 55, 58. * It is said that the words " yielding and paying" in a demise do not create a condition. Tallman v. Coffin, 4 N. Y. 134, 138. 'See "Precedents in Conveyancing" (3d edit.) Title "Leases" as to apt words to constitute a demise, et infra, c. VI., "Leaseholds." « Challis, 6, 46, 47. ' Cf. Littleton, sections 325, 830 ; Sheppard's "Touchstone," 123. " Flower «. Hartopp, 6 Beav. 476. 46 QUAKTEE SALES. it was distinctly said also in conformity to other decisions, ' that the assignment of the rent was not a grant of the rever- sion. By several acts of Parliament," not extended to New York, purchasers in England of fee farm rents from the Crown were given the same remedies (with an exception in the exchequer) enjoyed by the Crown. In Attorney-General ». Mayor of Coventry,' it was conceded apparently by counsel that the king could distrain for quit-rents only while the lands were in the hands of the defaulting tenant, but not after he had aliened. Nor could the king then recover by elegit. It was said that the king's right was therefore pre- carious. Certainly the proceedings in the province of New York corroborate this statement, and make it doubtful whether the king could always (as stated in De Lancey v. Piepgras) by inquisition have the estate of the tenant de- clared at an end.* After a lapse of time and non-claim the quit-rents were presumed to be paid.' It is a rule of law that the king's grants are to be con- strued for the king, but this doctrine is subject to limita- tions. They must be open to two intents before that intent which makes most for the king is taken ;' and when the grant was for a valuable consideration they must be con- strued most favorably for the patentee.' While a grant in fee reserving a perpetual rent has been held valid in New York as a rent charge,' a reservation to the grantor and his heirs of a "quarter sale" or "sixth sale," or other specific sum upon a sale or demise of the property, whenever such sale or demise happened, has been declared a void reservation and repugnant to a grant in fee simple, and the estate stood divested of such condi- 1, p. 43. " 22 Car. II., c. 6 ; 22 and 23 Car. II., c. 24. 8 2 Vern. 718. * Note 231, Co. on Litt., 142(i, and note 84, 201a. ' Simpson v. Gutteridge, 1 Haddock, 609, 614, 615 ; Kent's City Charter, note AAA, p. 172 ; c. 53, Laws of 1775. ' See the authorities cited and this whole subject discussed in Forsythe's "Cases and Opinions," pp. 175, 176. ' Sir John Moline's Case, 10 Rep. 65 ; Langdon v. Mayor, etc.. City of N. Y., 93 N. Y. 129, 147. « Van Rensselaer ii. Hayes, 27 Barb. 104 ; affirmed 19 N. Y. 68 ; Van Rens- selaer ». Ball, 19 N. Y. 100. VACATING CKOWN GEANTS. 47 tion.' This principle until 1846 rested on the common law of the province of New York, which was by the Constitu- tion of 1777 made the fundamental law of the State.' In several instances the people of the State, as successors to the subverted sovereignty and prerogatives of the Crown,' have instituted actions designed to vacate letters patent, granted by the king, claiming that such actions were not barred by lapse of time, according to the maxim nullum tempus occurrit regi.*' A proceeding by "action" is now a substitute in New York for scire facias, which was the king's remedy ; but these attempts of the State have either been held to be barred, or have not been encouraged by the courts. They have uniformly resulted adversely to the people, or in favor of those claiming under the Crown grants, the English statutes of limitation or their revisions, being held a bar to the actions and always a part of the law of New York." The English statutes, referred to in the New York cases, 21 James I., c. 2, and 9 Geo. III., c. 16, limited the king's time to proceed against his patents, and these limitations were extended to his successor, the peo- ple of the State. The substance of the English statutes was incorporated in the several revisions by Messrs. Jones & Varick' and Kent & Radcliff,' the words " the people of ' Overbagh «. Patrie, 8 Barb. 38 ; Const. 1846, Art. I., Sec. 15. ' For a full discussion of the general subject, " Common Law of New York," adopted by the Constitution of 1777, as the fundamental law of the State, see "Journeymen Cordwainer's Case," Yates' Select Cases, 111, and as to English statutes forming part of the common law of New York, Bogardus ». Trinity Church, 4 Pal. Ch. 178, 198. The term " common law" is used in many senses by different writers : 1. As denoting the jurispru- dence of England in contradistinction to the Roman or civil law. 3. As indi- cating the law of custom or usage, jxLt moribus constitutum. 3. As defining the more ancient laws of England. 4. As equivalent to the non-statute, or " jTidge-made," law,^^ prudentibus constitutum. The Hon. Charles P. Daly has just published a new thesis illustrating this subject, entitled " The Com- mon Law," New York, 1894. ' People B. The Rector, etc., Trinity Church, 33 N. Y. 44, 46. ^ 3 Bla. Com., 807. 5 People ®. Van Rensselaer, 9 N. Y. 391 ; People «. Clarke, 9 N. Y. 849 ; B.C. below 10 Barb. 130 ; 11 Barb. 837 ; People v. Livingston, 8 Barb. 353 ; Bogardus i>. Trinity Church, 4 Pai. 178, 198. « 3 J. & v., 360. 'IK. &R,, 563. 48 EOTAL MINES. the state" being substituted for the words " the king, his heirs or successors." ' At the present day these revisions remain the historical basis of the law limiting actions by the people in their sovereign capacity." Under the Crown government the New York Assembly had no authority to encroach on the king's prerogative, and could prescribe no limitation to his power to annul his patents, except with his consent.' It was otherwise with regard to statutes con- cerning the suits between private persons, and therefore statutory limitations of such rights were not unknown from the earliest times.' The acts vacating the extravagant grants of some of the Crown governors were passed by direc- tion of the Lord Justices of England representing the Crown.' Even these acts, though ultimately approved by the Privy Council in England, were by many deemed un- constitutional and contrary to the common law.' In 1699 the Assembly passed an act restraining leases by the governor of the king's farm for a longer term than his own official residence. ' This act was repealed by the Assem- bly on !N"ovember 27th, 1702,° and was not in force in the province from that time to June 26th, 1708, when the Queen disapproved the repealing act and confirmed the act of 1699.' The royal patents for lands never included by implication the royal rights to mines. By the common law the king had here, as elsewhere in his dominions, mines of gold and silver as part of his prerogative of coining," and under this ' People «. Clarke, 10 Barb. 120, 144 ; 9 N. Y. 349, 360. = Bogardus v. Trinity Church, 4 Pai. 178 ; 15 Wend. Ill ; 4 Sand. Ch. 633 ; People V. Rector, etc., Trinity Church, 23 N. Y. 44, 57 ; Code of Civ. Pro., section 362. ' Doc. rel. Col. Hist. N. Y., V., 117. * An " act of settlement," passed November 2d, 1683 ; " an act for quiet- ing of men's estates," etc., passed October 24th, 1684. ' Act of May 13th, 1699, 1 Van Schaack, 81 ; Bogardus «. Trinity Church, 4 Sandf. Ch. at p. 729. Doc. rel. Hist. N. Y., IV., 537, 785 ; Doc. Hist! N. Y., I., 377, 880. « Doc. rel. Col. Hist. N. Y., V., 23. ' 1 Van Schaack, 31. 'iM., 51. 9 Bogardus i>. Trinity Church, 4 Sandf. Ch. at p. 737. '" Chitty's Prerog. oi the Crown, 145 ; Case of the Mines, Plowden, 336, 339 ; 2 Bla. Com., 43, note. TIDE-WATEE8. 49 description were included mines of lead, tin, and copper, containing either of tlie precious metals. The royal rights were somewhat modified by statute,' which extended to New York." These prerogatives passed, at the subver- sion of the monarchy, to the people of Few York, who have never parted with them, although regulating them by proper conventions.' The rights and relations of the Crown to the tide-waters and tidal creeks, embraced in the Duke of York's patents, are sufficiently distinct from the subject of tenure as to re- quire a separate treatment in a more methodical and ex- tended manner than is permitted here. The reader is, therefore, referred to the existing treatises on this subject, and particularly to their ample citations of authority.* ' 1 W. & M., 1 c. 30 ; 5 and 6 W. & M., c. 6. 2 IJ. & v., 335 ; 3 J. & v., 403, 403, 445, 463, 463 ; 1 R. L., 134 ; 1 R. S. 281. 'IR. 8.,381. * Gould's Treatise on the Law of Waters, Chicago, 1883 ; Pirsson's Dutch Grants, Harlem Patents and Tidal Creeks, New York, 1889 ; mpra, p. 13. CHAPTER III. LOCAL INCIDENTS. An outline of the condition of the socage tenure of Eng- land in the year 1664, when it became the tenure of all the lands of 'New York, has been attempted in the preceding chapter. We have perceived that the English law had then almost attained to the stage where the socage tenants were regarded as the real owners of the soil, but that the principles of the English law of feuds still controlled to a considerable extent the nature of legal estates, as well as the devolution of title to landed property. Many reforms and innovations remained to be accomplished before the law of socage lands was modernized and free from the shackles of tenure. In the year 1664 the Statute of Frauds, 29 Car. II., c. 3,' which put an end to the common law mode of conveying freeholds without writings, by feoff- ment with livery of seisin alone, had not yet been passed in England, and was not so passed until many years after New York had for some purposes a like statute of its own." The highly technical remedies for obtaining possession of lands wrongfully withheld were still in use except in the case of leaseholds. The jurisdiction of the English chancel- lors over uses and trusts, enabling such skilful modifica- tions of the property right, and even the plenary equity jurisdiction in cases of mortgage, were very far from being worked out to completeness. Lord Nottingham, called the "father of English equity," had not yet ascended the "throne of equity." Consequently that system of jurisprudence which we now know in its entirety as the ' ' A.D. 1677 ; Jackson ex dem. v. Wood, 13 Johns. 73. • Supra, p. 16 ; Duke's Laws of 1664, title " Conveyances, Deeds and Writ- ings." Livery of seisin still remained in use, however, in New York. NEW TOEK OHANCEET. 51 " English law," or very often as " the old common law,'" was very far from having attained to the stage of develop- ment that it reached a century later, or in the year 1775, at the date of the battle of Concord and Lexington, which now serves to indicate the abolition of the legal authority of the old empire over this State and country. Independence of the Crown accounts for few of the legal changes wrought here in the law relative to the socage tenure. Prom the year 1683 New York possessed a legisla- ture of its own, which in 1691 became permanent." There- after the acts of the New York assemblies, if not disap- proved by the Crown, had the same energy that an act of Parliament enjoyed in England. But prior to the estab- lishment of Independence the Assembly of New York made few changes in the law relating to the socage tenure.' After 1683 New York possessed a regular court of chancery of its own.* Had it not been for this tribunal the province would have been unable to avail itself (at least without the intervention of the Legislature) of those great remedies and equitable doctrines which grew up in England between the chanceUorships of Lord Nottingham and of Lord Eldon, for with the latter the edictal power of promulgating new doc- trines and remedies is regarded as closed by exhaustion, the entire circuit of English equity jurisdiction having been then fully delineated. The establishment of a court of equity in New York, vesting, as it did, the judicial powers of the lord chancellor in the chief officer of the local court, perpetuated here that dual nature of real property entertained by English juris- prudence.' The very existence of this court in New York, ' This term " common law" is either generic or specific. It may refer to the jurisprudence of England, or to that law of England founded on custom, when not traceable to any statute. In very early writers it refers to jus morilrm eonstifutum, or to case law ; supra, p. 47, note. ' The grant of a legislature to New York is outlined in the Historical Intro- duction to the Qrolier Bradford's N. Y. Laws of 1694. ' Infra, p. 58. ' See General Introduction to Hoffman's N. Y. Chancery Practice, for rise of the Court of Chancery in New York ; also notes 2 and 24 to the Grolier Bradford's N. Y. Laws of 1694, pp. cv., cxxiii. 5 Infra, c. VII. 52 coke's comment aeies. even without an assertion of its jurisdiction, must have had a tendency to abate many inflexible rules of the common law, especially those relative to forfeitures and to mortgages of real estate. It has been often stated that the introduction of the soc- age tenure into New York brought in the antecedent law of England relating to that tenure. ' The great expositor of this law at that time still was Sir Edward Coke, whose Commen- taries on Littleton had been published only some thirty -six years before the Duke of York's first grant for New York. Coke's Commentaries were so complete in themselves that they almost dispensed vvdth the necessity of consulting the year books and their abridgments.' They possessed but one disadvantage for a lawyer practising in the prov- ince of New York : they were unfortunately published a few years prior to the reforms instituted by the acts remov- ing the feudal burdens from the socage tenure.' But as these reforms were discussed in Coke's time, their spirit is not wanting in his commentaries, which therefore long continued to serve as a bridge between the old law and the modernized socage tenure. In the year 1664 the adjudications on the text of the laws of England were in small compass, consisting of some ten folio volumes of cases in Chancery, and, exclusive of the eleven volumes of the year books, of some seventy volumes of common law reports. These, with the statutes at large, contained not only the law relating to land, but the entire corpus juris of England. The redundant exposition of the law had hardly begun. Lord Mansfield,* who did more to modernize the ancient law than any other judge, was not 1 Supra, pp. 10, 21, 37 ; this was also stated in substance by counsel in Dutton V. Howell, in temp. Car. II., Shower's Par. Cas. 24 ; but in reference to another patent for lands to be held by the socage tenure. ' The learned Mr. Watkins, in his " Principles of Conveyancing," p. 4, points out the want of method in Colte. Yet the latter has proven an inexhaus- tible source of the law of English-spealiing peoples. This Mr. Watkins admits. » 12 Car. II., c. 24, a.d. 1660 ; mpra, pp. 36-38. ^ As this judge when Mr. Murray had been at one time the agent in Eng- land of the province of New York, his opinioa that the province had been acquired by England through conquest has always carried great weight (Campbell ». Hall, Cowper, 204). 53 made Chief Justice of England until New York had been almost a century under British, dominion. He had pre- viously served as the agent for the province of New York. Until the publication of Blackstone's Commentaries,' Coke continued the great commentator on the socage tenure. It was Blackstone who, jper saltum, made the mediaeval law modern in form and content. His Commentaries, by their lucidity and fine literary qualities, afforded a new and more modern basis for English institutions." While it is quite true that Blackstone was much indebted to Hale's " Analysis" for the arrangement of the Commentaries, and that it is now the fashion to criticise his classification of the laws of England, yet Blackstone's is by far the greatest name in the literature of English law.' But had it not been for a very useful fiction of the common law — that it is presumed always to have been at that stage of devel- opment which it last attains — New York could not, with- out legislation, have derived the benefit of the improve- ment or modernization which thus took place in England between 1674 and 1775.* Although in theory none of the laws or juridical doctrines of England developed subsequent to the year 1674 was part of the law of the province of New York, yet, in point of fact, at the outbreak of the War of Independence almost every incident of the English law relative to socage tenure then accorded with the law of New York. The differences be- tween the two systems were only exceptions to general prin- ciples. This marked identity continued even after in- dependence of the Crown was achieved. Years subse- quent to this event Sir Edward Sugden deplored that the latest English subtleties of the law of real property should embarrass estates in the lands of this country. Not- 1 A.D. 1756-69. ' Blackstone's editors have pointed out the necessary limitations on his doc- trines. His text remains a miracle of condensation and learning. ' Blackstone's classification is well defended in the Introduction to Bandar's (American) edition of the " Institutes of Justinian," Chicago, 1876. His clas- sification was substantially adopted in the great revision of the N. Y. Stat- utes in 1829. Infra, c. V. * The English cases prior to this year, of authority in America, are enumer- ated in Tomlin's "Repertorium Juridicum," published about this period. 64 ENGLISH STATUTES. withstanding this identity, the early differences are not to be disregarded. While we may assume, therefore, in the absence of any express adjudication to the contrary, ' that in 1775 the law df. the province of New York relative to the socage tenure was much the same as the law of England concerning lands in England held by the same tenure, yet differences existed between them. These differences were due either to the statute law, or, in at least one instance, to local custom. Until the year 1789," when the English statutes were re- modelled and re-enacted in the New York revision by Jones and Varick, it was a very perplexing question, What por- tions of the English statutes were in force in New York ? Smith, the historian of the province and a lawyer of promi- nence at its Bar, alluded to the uncertainty in the year 1757.' Yet his father, the Chief Justice of New York, had in the year 1700 officially stated the general opinion, that the English statutes operative here were only those declara- tory of the common law.* Here, again, a distinction is often made, for the purpose of determining this question, between plantations acquired by England through discovery or through conquest ;' but Chitty intimates" very plainly that there is little force in this distinction, as no part of the law of England is operative exproprio mgore beyond the limits of England, but only by force of some legislative enactment or prerogative action, which must determine the question. Thereafter the acts of the English Parliament are of course not operative unless the province be therein included.' ' See Van Rensselaer v. Hayes, 19 N. Y., at top of p. 76. = C. 90, sec. 38, Laws of 1788 ; infra, pp. 77, 78. ' History of N. Y., first London edit., ararao 1757, p. 243 ; Amer. edit, of 1839, II., 47, note. ' Doc. rel. Col. Hist. N. Y., IV., 828. 8 Clark's "Colonial Law," p. 15; Stephens' Bla. Com., I., 105; Surge's Int'd to Commentaries on Colonial and Foreign Law, xxxv. ; supra, pp. 9, 22. « Supra, pp. 9, 22; Chitty's " Prerogatives of the Crown," pp. 32, 33, and notes. ' Clark's Col. Law, 16 ; Burge, Int'd., xxxi. ; Douglass' Summary, I., 213 ; Chalmers' Col. Opin., 211, 212 ; Pownall's Colonies, 102 ; Forsythe's Opin., c. I. ; 4 Mod. 222 ; Rex ». Vaughan, 4 Burr, 2494, 2500 ; Boehm ■». Engle, 1 Dallas, 15 ; Morris' Lessee v. Vanderen, 1 Dallas, 64, 67 ; Respublica ■». Mesca, 1 Dallas, 73, 75. COMMON LAW. 55 This opinion accords with the more modem view already- indicated.' Yet this whole subject is one which has always been involved in considerable obscurity, the courts of each of the plantations having in practice determined the ques- tion largely for themselves.' The obscurity noticed was much promoted by the dif- ferent uses of the term "common law," it being some- times intended thereby to exclude the statute law," and at others to include all the law of England, both statute and common. But the uncertainty indicated was never exhibited in the higher tribunals of England, for there the general rule was well settled." Such uncertainty was manifested rather in the attempt to apply in courts of first instance in the British colonies statutes of England which were not originally intended to have an extra-terri- torial application, and were not suitable to the newer conditions of society. The general rule was that Eng- lish statutes passed anterior to the settlement or con- quest of an acquired dominion were, when declaratory of the common law, in force there as a part of the English common law.' Later statutes of England became opera- tive through some legislative enactment only. These were the general rules in New York." Whenever an act of Parliament specially named or in- cluded ~New York and the other plantations, they were bound by it, according to the constitution then prevailing in ' Supra, p. 32 ; Forsythe's Opinions, c. I. and note ; and see Quincy's ' ' Colo- nial Reports of Massachusetts," 520 and note. ' Smith's History N. Y., I., 243 ; cf. Tucker's Blackstone's Commentaries, I., 393 ; Dane's Abridgment, VI., art. 7, sec. 3, p. 606 ; Jackson ex dem. v. Gilchrist, 15 Johns, at p. 110 ; Lessees of Levy «. M'Cartee, 6 Peters, 102-110 ; Sharswood's Law Lectures, 194 ; Story on the Constitution, L, sec. 187 ; For- sythe's Opinions, c. I. and note ; Quincy's Mass. Report, 520 and note ; Yates' Select Cases, 111. ' Lessees of Levy ». M'Cartee, 6 Peters, 102, 110 ; Patterson v. Winn, 5 Peters, at p. 341 ; et supra, c. II., p. 47, note. * Forsythe's Opinions, c. I., and note; 3 PeereWm.'s, 75, state the rule of the Privy Council in England, which was the high Court of Appeal for the English colonies, including New York. See also Appendix to Burton's " Com- pendium of the Law of Real Prop.," for a general discussion of this subject. ' Patterson v. Winn, 5 Peters, at p. 341. « Doc. rel. Col. Hist. N. Y., IV., 838 ; infra, c. V. 56 CUSTOMS OF NEW TOEK. the BritislL Empire.' Thus by an act of 5 Geo. II., c. VII., the whole of debtors' real estate in the plantations was made assets for the payment of certain debts. The remedy given by this statute was ultimately extended in New York far beyond its original import." The differences in the laws of England and of the prov- ince of New York, due to the force of the customs of New York, could not, at so early a period, have been many. But there is one notable instance— the custom in the prov- ince of New York of conveying estates of femes covert by deed.' In England femes covert could then convey their interests in real estate only by the common law modes of levying a fine or suffering a common recovery.' Ordi- narily these acts of record required a separate acknowledg- ment of the wife and the consent of the husband. '' It would seem that in the province of New York prior to 1771 the interests in real property of a feme covert might by custom be conveyed by a deed not even acknowledged if it were made by her in conjunction with her husband." The validity of such a mode of assurance is said to depend alto- gether on custom.' In the year 1771 this custom was for- mally recognized by an act of the Legislature, and prior con- veyances made in conformity with it were declared valid." The practice, very general in the province, of recording deeds," acknowledged before some public officer who was ' Supra, p. 30. ' Chancellor Jones ; N..Y. Hist. So. Col. for 1831, p. 347. Before this time a creditor could obtain possession of one half of his debtor's real estate by writ of elegit. Waters «. Stuart, 1 Gaine's Cases, 47, 70 ; Catlin v. Jackson, 8 Johns. 530, 547. » Albany Fire Ins. Co. s. Bay, 4 N. Y. at p. 31. ^ See note to 3 Bla. Com. 351 ; Constantine «. Van Winkle, 6 Hill, 177 ; Jack- son ex dem. v. HoUoway, 7 Johns. 81, 86 ; Whitbeck «. Cook, 15 Johns. 545. ' Sheppard's "Touchstone," 7 ; Albany Fire Ins. Co. ®. Bay, 4 Is. Y. at pp. 13 and 31. « Van Winkle «. Constantine, 10 N. Y. 432. ' Jackson «. Gilchrist, 15 Johns. 114 ; Constantine «. Van Winkle, 6 Hill, 177 ; Van Winkle «. Constantine, 10 N. Y. 433 ; it probably extended to leasehold conveyances. See Jackson ex dem. «. HoUoway, 7 Johns. 81, 86. * Van Schaack's N. Y. Laws, 611, 765. By this act her formal acknowledg- ment apart from her husband was obligatory for the future. See also 3 J. & V. 84. ' If we disregard the Duke's Laws and the acts of 1683-84, there was no BEOOED OF DEEDS. 57 without any apparent authority to take such acknowledg- ments, has also been ascribed to the force of custom.' This practice or usage was, however, probably due to an ordi- nance of the Crown governor, passed in 1723," and before that time to the earlier statutes of New York. The laws of New Netherland had contained some provisions for the ac- knowledging and the recording of deeds,' and after the capitulation of 1664 the Duke's Laws contained a like provi- sion.* The act of November 3d, 1683,' required the acknowl- edgment to be made before a justice of the peace. This act was followed by one in 1684,° and that of 1684 by the ordi- nance of 1723, above mentioned. This ordinance and an act passed in 1753, referring to acknowledgments of mort- gages,' were for many years all the law that existed. On February 16th, 1771, acknowledgments of deeds were, how- ever, regulated for the future ;" they were to be made be- fore one of the members of the council, or the judges of the Supreme and the Common Pleas courts, or a master in Chan- cery. After the War of Independence these laws were fully revised by Jones and Varick." The acts on this sub- ject passed subsequently to this revision and prior to the year 1829 were authoritatively collected as an appendix to the Revised Statutes of 1829, and may be there found." law of the province after the Resolution of 1691 (infra, p. 58) requiring deeds to be recorded. They were recorded probably in view of the uncertainty as to whether the Statute of Enrolments extended here. Jackson ex dem. v. Meyers, 3 Johns. 388, 394. I Van Winkle v. Constantine, 10 N. Y. at p. 429. ° Bradford's N. T. Laws, edition of 1726, at the end. It would seem to be the opinion that the demise of the Governor did not determine an ordinance. Chalmers' Col. Opinions, 254, 302, 326. ' Laws and Ordinances of New Netherland, 459. * Title " Records" and " Conveyances, Deeds and Writings," »upra, p. 13. ' " An Act to prevent frauds in the conveyancing of lands," supra, p. 19. ' " An Act to prevent deceipt and flforgerye," supra, p. 19. ' 2 L. & S. 19. " Van Schaack, 611, as amended by the Act of March 8th, 1778, Van Schaack, 765 ; Hunt v. Johnson, 19 N. Y. 279, 291. » 2 J. & V. 92, 266. It is said in Jackson ex dem. v. Dubois, 4 Johns. 216, that prior to this act there was no necessity of registering mortgages ; but see infra, p. 87 ; Jackson ex dem. v. HoUoway, 7 Johns. 81, 86 ; Hunt «. Johnson, 19 N. Y. 279, 291. '" Vol. III., p. 25, et seq. The best treatises extant on this entire subject are 58 POWBE OF THE ASSEMBLY. The differences made by acts of the Assembly of the province of New York in the law of New York concerning lands held by the socage tenure were necessarily very few, and related to form rather than to substance.' The powers of the Provincial Legislature were in this respect restricted. All their acts were by a fundamental limitation bound to conform as near as might be to the laws and statutes of the kingdom of England." By this organic restriction it was intended to prevent any legislation of a kind so radical as to violate the rationale or animating principles of the juris- prudence of the parent land.' It certainly prevented any great innovation by the Provincial Assembly, and hence their subsequent modifications of the English law relating to the socage tenure were not great. The acts of the Dongan assemblies of 1683-84-85 ' were far more original, while the Duke of York's laws of 1664-65 contained some provisions entirely novel in English law. By a very singular resolution of the lower house of As- sembly, adopted April 24th, 1691, " aU the laws consent- ed to by the General Assembly under James, Duke of York, . . . not being observed and not ratified and ap- proved, . . . were declared null and void." ' The legal effect of this declaratory resolution of a single chamber of a bicameral Legislature has been greatly debated, and the in the form of a pamphlet, by John "Wallis, Esq., attorney, attached to the brief of the Honorable David Dudley Field, of counsel in Van Winkle v. Con- stantine (10 N. Y.), N. Y. State Library, Albany, and a brief of the Hon. George Hoadly in Blackman v. Riley, 138 N. Y. 318 {vid. Court of Appeals Records containing briefs in full). ' This fact is seen in the few statutes of New York referred to in the ap- pendices to Jones & Varick's Revision, and in the R. S. of 1838-39. The major part of the acts of the Provincial Assembly after 1691 were local or private acts, and not reformatory of the common law. The revisers after Independence failed to include the Provincial Statutes in their revisions. ' Doc. rel. Col. Hist. N. Y., III., 633 ; supra, pp. 30, 38. ' The commissions from the Crown to the royal governors of the province were the authority for the assemblies ; after the year 1691 these commissions contain the limitation noticed. By act of the English Parliament, 7 and 8 W. III., c. 33, acts in conflict with an act of the British Parliament were made void. * Bu.pra, c. I., pp. 17-30. ^ Journal of the N. Y. Assembly, April 34th, 1691, p. 8 ; et supra, p. 31. EESOLTTTION OF 1691. 59 authorities differ upon it.' It is difficult to concede to tlie resolution on principle any legal force whatever," but in practice the legislatures subsequent to 1691 may have disre- garded the prior legislation. The revisers of the New York Colonial Statutes were uniformly directed by the Legisla- ture to begin their revisions with the " Happy Revolution, " or with the laws of 1691, thus excluding by implication from the region of statute law the acts passed under the Stuarts or prior to 1691. But such a direction could have no bind- ing effect either on the Crown or on the fundamental con- stitution of the province. It could at best be only evidence of non-user, which by the common law is inconsequential." The courts of New York in the present century have, how- ever, given effect to the resolution of 1691, or have certainly intimated that such resolution was correctly expressive of the facts that the " Duke's Laws" of 1664-65 and the acts of the Dongan assemblies of 1683, 1684 and 1685 were repealed * by the year 1691. The legal effect of the resolution would therefore seem to be no longer open to further discussion, at least in New York." This resolution of 1691 was merely declaratory ; it may possibly have been intended to convey an idea that the legis- lation then attempted to be proscribed was either contrary to the laws of England, and therefore void, or else of so informal and inofficious a character as to be unworthy of any future consideration. It was brutum fulmen by the constitution of the province, and it is to be given effect now ' These authorities are generally presented In the Historical Introduction to the Grolier reprint of Bradford's N. Y. Laws of 1694 ; Van Winkle «. Con- stantine, 10 N. Y. 433 ; 6 Hill, 181 ; Brookhaven Trustees v. Strong, 60 N. Y. 56, 68. ' Lieut.-Gov. Golden intimated in 1733 that the laws affected by this resolu- tion were those made by the governor and council alone without the concur- rence of the Assembly. 1 Doc. Hist. N. Y. 378. 2 See Int'd. to Grolier Bradford's N. Y. Laws of 1694, p. Ixxxii. * Van Winkle «. Constantine, 10 N. Y. 433, 436 ; Constantine v. Van Winkle, 6 Hill, 177. = It is quite different in England ; there, in a case involving a succes- sion to hereditary honors or estates, the decision of the courts of the State of New York on the effect of this resolution is, of course, not binding as authority. 60 /LEGAL EFFECT OF CEETAIN DUTCH WOEDS. rather on the principle '■'communis error facit jus''' than because it was legislative in effect.' For the reasons already stated, the differences made in the law of New York concerning the socage tennre by the action of the assemblies of the province of New York were after the year 1691 inconsiderable. The effect of the laws passed prior to that year has been also debated." In the year 1710 the possession of any lands from October 30th, 1700, to September 1 st, 1713, without any adverse claim or entry, was declared to confer a good title on the possessor.' By the same act the records of deeds were made evidence in themselves, while the Dutch words onroerende and vaste stoat, commonly used in certain legal instruments by those of Dutch descent,* were declared to pass a fee simple. A later act declared that those dying seised of real estate in New York prior to November 1st, 1683, should be deemed to have been naturalized citizens for all legal acts and pur- poses.' This law was intended to avoid certain claims of escheats and lack of heritable blood, and was passed in the interest of the heirs of the former Dutch proprietors. In 1708, after the subject had been reformed in England,' the easier partition of socage lands held in joint tenancy or in common was attempted in New York.' In 1753 mort- gages of real estate were again required to be acknowl- edged ; ° the acknowledgment might be made before one of the council for the province, a justice of the Supreme Court, or a judge of the Common Pleas. Priority of record then conferred priority of lien in any court of record within the ' The arguments on this point are given in the Hist. lut'd. to Grolier Brad- ford's N. T. Laws of 1694, c. II. 2 Bu,pra, pp. 16-20. 3 C. 216, 1 L. & 8., p. 84 ; cf. English act, 21 Jac. 1, c. 16 ; swpra, p. 17. * The articles of capitulation of 1664 preserved the Dutch law concerning inheritances for the use of the antenati, supra, p. 14. Many posinati, how- ever, made wills in Dutch and according to Dutch law until a late period in the last century. <■ C. 293, 1 L. & S., 112 ; Van Schaack, 561 ; supra, pp. 14, 15. • 8 and 9 W. III., c. 31, and 3 and 4 Anne, c. 18. ' C. 183, 1 L. & S., 75. See Appendix to R. 8., III., for subsequent legis- lation on this subject. ' C. 124, 2 L. & 8., 19. PEOVmOE LAWS. 61 province.' As it was evidently the opinion" that the vi^rit of cessamt per hiennium, vrhich was by force of the Statute of Westminster 2d, did not lie in this province, the quit- rents due to the Crown were sought to be enforced by aid of special acts of Assembly." The revision of the provincial lawyers, Livingston and Smith, includes the acts of the New York Assembly passed between the years 1691 and 1763. The only other revision of the laws of the province is that of Peter Van Schaack, a counsellor-at-law, made about the year 1774." It includes the laws embodied in the earlier revision, and also those enacted after 1763 and prior to 1774. Yery few of these later laws are of much interest to our subject, and not one of them made any essential change in the antecedent nature or law of the socage tenure ; but it may be well to notice the condition of the acts of Assembly. The printed evidences of the laws of the province of New York or of those of our laws passed prior to the War of In- dependence are very few, William Bradford compiled and published the first edition at New York in the year 1694 ; it is now among the rarest and most costly of Americana. A fine fac-simile of this edition, with notes, etc., has lately been issued (1894) under the auspices of the Grolier Club, of New York, and is often referred to in this essay. The Duke's Laws of 1664 and 1665 have been published by the New York Historical Society' and by the State of Penn- sylvania.' The Dongan Laws of 1683, 1684 and 1685 have- ■ The Duke's Laws of 1664, title " Conveyances, Deeds and Writings," liaii required mortgages to be in writing and acknowledged before some Justice of the peace or superior officer of the government. An act passed Nov. 3, 1683, entitled " An Act to prevent frauds in conveyancing of lands" and a " Bill to prevent deceipt and fEorgerye," passed Oct. 33, 1684, contained like provi- sions. And see supra, pp. 13-19. « Doc. rel. Col. Hist. N. Y., V., 870. Messrs. Jones & Varick thought other- wise, and included the statute in their revision (Vol. II., p. 108). » 1 L. & S., 46 ; 3 iUd. 68, 387, 356 ; Van Schaack, 515 ; De Lancey i). Piepgras, 138 N. Y. 36. See this subject discussed at p. 43, supra. * The Laws and Ordinances of New Netherland were collected by Dr. O. Oal- laghan from the Holland documents and other sources, and a translation was published in 1868, Albany, Weed, Parsons & Co. This work gives referencea to the original sources of the laws. = In the year 1809. « In the year 1879. 62 KEVISIONS. never been published. They are, however, in the State Library at Albany, of vt^hich the regents of the university are the trustees. Copies of them, certified under the hand and seal of the Board of Regents, may be read in evidence in the courts of New York with the same force and effect as the originals.' In 1710 Bradford issued another title-page edition, which has a quasi-official authority, for it was published in obedi- ence to an order of the Assembly ;' it includes acts between 1691 and 1709, but not all. In 1713 Bradford struck off an- other title-page edition, including acts passed between 1709 and 1713. This was followed by an edition published in 1726. In 1719 the Privy Council in England would appear to have encouraged an edition of the laws to be printed. At all events, John Baskett, the Crown printer, printed an edition of the laws of New York, passed between 1691 and 1718 (London, MDCCXIX.). This edition has no official authority, but is useful as indicating in the margin the laws approved by the Crown. Bradford's editions of the laws of New York do not pretend to include any laws passed anterior to the year 1691. After 1694 the laws were printed session by session. In 1741 the Legislature, noting the incorrectness of all the printed copies of the laws of New York,' resolved to ap- point a reviser of the laws, but nothing came of it. On No- vember 24th, 1750, a bill to revise the laws of New York was, however, passed, and led to the revision by William Livingston and William Smith.* The law authorizing such revision, recites that the laws of New York had thitherto been very incorrectly printed and bound up.' In 1753 the lords justices of England recommended a codification of the laws of New York. This the Assembly declined on account of the expense lately incurred in the revision by Messrs. Livingston and Smith." The last revision of the laws of the " C. 130, Laws of 1881. » Journ. N. Y. Assembly, Nov. 13, 1709. ' Journal N. T. Assembly, p. 833. ^ New York, Vol. I., MDOCLII. ; Vol. II., MDCCLXII. ' 1 L. & S., p. 443. « Journ. N. Y. Assembly, May 30th, 1753, and June 1st, 1753. ALIENS. 63 province was undertaken by Peter Van Schaack, counsellor- at-law, pursuant to an act of 1772.' This revision contains, in addition to the laws included by Messrs. Livingston and Smith, acts passed between 1763 and March 8th, 1778 (13 Geo. III.). The remaining acts of the Assembly passed in 1774 and 1775 were printed by the public printer, Hugh Gaine. Such are the accessible printed evidences of the acts of the Assembly of the province of New York. But they do not purport to be the exclusive evidence of the laws of New York prior to its independence of the Crown. There are, besides the acts from 1664 to 1691, fourteen hundred subse- quent acts of the Assembly which remain wholly unprinted. It is understood that a Statutory Revision Committee is now engaged in the work of preparing all the colonial laws for pubUcation." At common law,' aliens could not take lands by descent, or hold lands acquired by purchase as against the King after office found, and such was the general rule in the prov- ince of New York." The Dutch government had been extremely liberal in its policy toward the English who dwelt within the limits of New Netherland, permitting them to acquire lands and even to devise them." It has been already stated that after the conquest the English required those who held their lands under the West India Company to take out confirmations by the Duke's governor.' The New Netherland antenati who chose to remain within the province of New York became, after the treaties of Breda and Westminster, subjects of the kings of England by_ a " C. 1543, Van Schaack's Laws of New York, 676. ' C. 125 Laws of 1891. The mode of proving an act of the Assembly of the Province of New Tork is discussed in c. III., Hist. Int'd to Grolier Brad- ford's N. T. Laws of 1694. 3 Mick V. Mick, 10 Wend. 379 ; 3 Bla. Com. 374, 293 ; Goodrich v. Russel, 42 N. Y. 177 ; Mooers v. White, 6 Johns. Ch. 360. * Doc. rel. Col. mst. N. Y., V., 496, 497 ; but the English Stat. 11 and 12 W. III., c. 6, was not part of such law ; Jackson v. Green, 7 Wend, 333. « Supra, p. 13. " Charter of Freedoms and Exemptions," Laws and Ord. New Neth., 467. Successions db inteatato, or to the estate of an Englishman dying without will, were according to Dutch law, iWd. ra, c. I., pp. 13-15. 64 NATUEALIZATION. process of collective naturalization deriving its effect from the cessions alone.' But this principle was to some extent arrested by the terms of the capitulation of 1664.° The effect actually given to the capitulation articles of 1664 is perhaps unnecessary to our subject, being largely his- torical at the present time. Many of the principal inhab- itants of New Netherland indubitably became subjects of England by naturalization or else by taking the oath of alle- giance after the cession.' To put the matter at rest, in 1683 " an act for naturalizing all those of foreign nations at pres- ent inhabiting within this province and professing Chris- tianity, and for encouragement of others to come and settle, etc.," * was passed. In 1710 followed another act ° " for the better assurance of lands in the colony," conferring a perfect right by a prescription of ten years prior and three years subsequent to the act. In 1715 the Assembly enacted that aU inhabitants of foreign birth dying seised of lands or tenements in the province should be esteemed to have been naturalized." A final act was passed in the year 1770, cur- ing aU. former defects in the titles of those citizens who were in possession of estates under patent or purchase granted to an alien inhabitant.' A great number of persons were natu- ralized by special acts of the legislature of the province.' The War of Independence and the establishment of a new State by a successful revolution gave rise to many questions about status and citizenship difficult of solution. These questions and the consideration of the present law concern- ing aliens are reserved for separate mention, in order not to interrupt the narrative at this point.' Before leaving the present subject, the main differences ' See opinions of Pothier, Felix, and Heftner ; Wheat. Elements of Intern. Law, Appendix, 631. ' 2 R. Ii. of 1813, Appendix No. I. ; supra, p. 14 et seg. ' See authorities, etc., Grolier Bradford's N. Y. Laws of 1694, Historical Introduction, pp. xlviii-1., Ivii., lix. ; supra, p. 14 et seq. * See act in ms.. State Library, Albany, passed Nov. 1, 1683. » Doc. rel. Col. Hist. N. T., V., 495 ; Van Schaaok, 82 ; 1 L. & S. 84. « Van Schaack, 97 ; 1 L. & S. 112 ; Lynch ®. Clarke, 1 Sandf. Ch. 583, 648. ' Van Schaack, 561. 8 Lynch «. Clarke, 1 Sandf. Ch. 583, 648. » Appendix No. II. ; et infra, c. IV. SUEVIVALS OF DUTCH LAWS. 65 between the laws of England and of the province of New York relating to land, there would seem to be one question which from its needless complexity requires further mention— the extent of the survival of the law of New Netherland after the English occupation in 1664, when the province first be- came New York. In the discussion which has arisen around this question the difficulty in the application of rigid doc- trines of an old jurisprudence to new and sparsely settled communities becomes apparent. It was a firm doctrine of the common law that the laws of a conquered or a ceded State prevailed until they were repealed by the conqueror or successor in the government,' and this principle has been fre- quently invoked in New York " as being a part of the com- mon law adopted by the State constitution.' To avoid the effect of this apparently incontrovertible proposition, other litigants have fallen back to the original justification of King Charles II. and his political agents for a flagrant act of spoliation committed in the year 1664, and assert that the States-general never had a title to New Netherland valid by the law of nations, the soil being always English territory de jure. They therefore hold that the Dutch Government and, as a consequence, its jurisprudence never had any rightful place in the territory now known as New York.* The literature of this discussion is voluminous, and its presumptions do not always precisely accord with ' Supra, p. 55 ; Canal Comm'rs v. People, 5 Wend. 445, 461 ; Canal Ap- praisers B. People, 17 Wend. 571, 616 ; 1 Bla. Comm. 107 ; Rex v. Vaughan, 4 Burr, 3494, 3500 ; 3 P. Wms. 75 ; Blankard «. Galdy, Salk. 411. " Mr. O'Conor's argument in Wetmore v. Story, 33 Barb. 433, 439 ; Mr. Att'y-GenTs argument in Jackson ex dem. ■». Gilchrist, 15 Johns. 89, 94 ; Story «. El. R. R. Co., 3 Abb. N. C. 478, 489 ; Canal Comm'rs v. People, 5 Wend. 433 ; Canal Appraisers e. People, 17 Wend. 571, 583 ; Hoffman's Treatise on the Corp. of N. Y. 363, 365, and 391, cited in Dunham «. Williams, 87 N. Y. 353 ; Van Schaack, N. Y. Laws, 83, 97 ; Chalmers' Polit. Annals, 574 ; Chalmers' Revolt of Colonies, I., 117. 3 Const, of 1777, sec. 37 ; Const. 1833-33, Art. VII. ; Const. 1846, Art. I. Const. 1894-95, Art. I. * Mortimer ®. N. Y. El. R. R., 6 N. Y. Supp. 898 ; 57 N. Y. Supr. Ct. R. 344 Hine«. N. Y. El. R. R., 7 N. Y. Supp. 464; cf. Van Giesen ». Bridgford, 83 K. Y. 348 ; Levy v. Levy, 33 N. Y. 97, 107 ; Dunham i>. Williams, 87 N. Y. 351 ; People ». Canal Appraisers, 83 N. Y. 461, 499 ; Overbagh v. Patrie, 8 Barb. 38, 41 ; Smith v. City of Rochester, 93 N. Y. 463, 483. 66 DUTCH TITLES. the historical evidences accumulated by more patient in- vestigators. Those who have recourse to the documents find that the English political authorities conceded that the title to the province was by conquest. By various ordinances and legislative enactments after their occupation of New York, the English formally substituted their own laws and juris- prudence for those of their predecessor in the sovereignty.' Therefore the discussion in courts of first instance in suits between private persons — concerning the better right and title to this territory of two sovereign governments in the seventeenth century — would seem to be somewhat beyond the matter in hand, even if such an issue is ever within the range of ordinary judicial inquiry. There are, however, exceptions to the universality of the statement that the English substituted their own laws so as to efface all vestiges of the law of New Netherland. Cer- tain pieces of property, when deducing title from Dutch charters, ground briefs and transports, preserved necessarily some characteristics of the Dutch tenure.' This resulted either from the terms of the articles of capitulation of 1664 (confirmed in 1674 after the final cession under the treaty of Westminster), by which certain rights were guaranteed to the Dutch inhabitants, ' or else from the terms of the English confirmation of the Dutch ground briefs or transports.' It ' Lord Mansfield (at one time New York agent at the British Court) in Camp- bell V. Hall, 20 State Trials, 239 ; s. c. Cow p. 204 ; Penn b. Lord Baltimore, 1 Ves. Sr. 444, 451 ; Sir John Randolph in Smith's Hist'y N. Y. (London edi- tion of 1757), p. 248 ; see also note on p. xxxi. 1 Wall, Jr.'s, U. S. Cir. Ct. R.; Bartow v. Draper, 5 Duer, 130, 142; Story ». N. Y. El. R. R. Co., 3 Abb. N. C. 489 ; Van Giesen d. Bridgford, 18 Hun, 73 ; 83 N. Y. 348 ; Dunham t. Williams, 37 N. Y. 251 ; Levy «. Levy, 33 N. Y. 97, 107 ; cf. note 17 Abb. N. C. 489, giving the various authorities. Other authorities are cited in the Historical Introduction to the Grolier Bradford's N. Y. Laws of 1694. ' Denton e. Jackson, 2 Johns. Ch. 324 ; Hempstead ti. Hempstead, 2 Wend. 109 ; 1 Hopk. Ch. 288, 293 ; People «. Clarke, 10 Barb. 120, 141 ; Dunham «. Williams, 37 N. Y. 251 ; rev'g 36 Barb. 136 ; Overbagh «. Patrie, 8 Barb. 28, 41 ; Van Giesen v. Bridgford, 18 Hun, 73, 80 ; affi'd, 83 N. Y. 348, People «. Livingston, 8 Barb. 253, 276 ; Story ®. N. Y. El. R. R. Co., 3 Abb. N. C. 478. ' 2 R. L. of N. Y., anno 1813, Appendix I. ; Dunham v. Williams, 37 N. Y. 251, 253 ; Smith v. City of Rochester, 92 N. Y. 463, 483 ; Pea Patch Case, 1 Wall, Jr., Appendix, p. xxviii. 'Record of Court of Assizes, 25 March, 1667, in State Library, Alba- INSTANCES OF StTEVIVALS. 67 is obvious, therefore, that a title to particular pieces of real property in New York, when lawfully deduced from a Dutch source, must, notwithstanding that the English law in its entirety was very soon substituted for the Dutch law, long continue to preserve some of the characteristics of Dutch tenure ; and that as between different adjacent owners, de- ducing titles under Dutch ground briefs or transports, Dutch wills,' or by successions ah intestato from Dutch sub- jects, the law of New Netherland must occasionally be in- voked in order to determine reciprocal rights : unless the English confirmation of particular ground briefs and the changes in the tenure at the time of the British occupation have substituted absolutely the English law relating to the socage tenure. The adjudged cases show that an unquali- fied substitution could not be made so as to avoid all ref- erence to the Dutch law. The few survivals of the character indicated would seem to class themselves about the following subjects : (t) Rights of such adjacent owners as between themselves or against each other ;' (2) their several rights as against the Dutch civil authorities ;' and (3) their several rights against the politi- cal successors to the Dutch government — i.e., the English, and later on the Republican, governments.' Nearly all the adjudged cases on this subject would appear to adapt them- selves to this classification, and not to be in conflict with the statement of other authorities which conclusively hold for present purposes that the English law came in with their occupation of the country in 1664.' This latter judi- ny. People v. Livingston, 8 Barb. 353, 276 ; see confirmation in Bogardus ». Trinity Church, 4 Sandf . Ch, 699. ' Van Giesen «. Bridgford, 18 Hun, 73 ; 83 N. Y. 348. ' These might be defined wholly by the law of New Netherland — e.g. , where both owners held under original Dutch transports. Smith e. City of Roches- ter, 92 N. Y. 463, 482. ' Dunham ». Williams, 37 N. Y. 251 ; Story v. N. Y. El. R. R. Co., 3 Abb. N. C. 478, 489. There Is an excellent discussion of the civil law relating to vid vidnales and mce publias in the brief of Mr. Van Nest in Abendroth v. N. Y. El. R. R. Co., Ct. of Appeals Cases in the year 1890. * HofEman's "Treatise upon the Estate," etc., of the City of New York (2d edition), I., 303 et seq. ' Canal Appraisers v. People, 17 "Wend. 583 ; De Ruyter ■». St. Peter's Church, 3 Barb. Ch. 119, 122 ; Humbert v. Trinity Church, 24 "Wend. 587, 623 ; Mayor, etc. v. Hart, 95 N. Y. 443, 450. 68 LIMITATIONS ON SURVIVALS. cial inference, though made long afterward, and without access to early political documents, is quite in accord with the results of legislation. It lacks precision only in not fully indicating that this result was due to the legislation of the English authorities and not to some effect of the Eng- lish claim to title by original discovery and occupation.' That the English did claim ITew Netherland by right of discovery is not doubtful," but nevertheless they took title to it by cession, and then they introduced their own law formally and by edicts of no uncertain sound. Of what consequence, then, in this aspect is a further Judicial in- quiry as to the origin of the English title to New I^ether- land, especially when we remember that the text of the great English commentator ' relative to the mode in which English law was introduced into colonies of England is purely figurative, and intended only to summarize the result of many causes. The limited survival after 1664 of that part of the law of !New Netherland just indicated cannot have any proper ap- plication to that vast body of land which, though lying within the limits of New Netherland, was never subjected by the Dutch to the actual dominion of private ownership, nor held under Dutch ground briefs or transports.* The ulti- mate title to all such lands rests solely on the Duke of York's patent, crown patents, or state patents.' Nor does it seem quite clear that the law of New Netherland should be held to apply to the title to streets laid out after the year 1664 through lands held originally under Dutch tenure and titles ; although such was the undoubted opinion of the late Judge Hoffman," who gave much attention to this subject. ' See supra, p. 23. The argument on this point is more fully given in the Introduction to Grolier Bradford's N. Y. Laws of 1694, if the reader care to consider this subject any further. ' Shively v. Bowlby, 153 U. S. 1, 14. 8 1 Bla. Com. 107 ; cf. Mr. Gould's note 3, p. 68 of his " Treatise on the Law of Waters" (3d edit.). * People V. Livingston, 8 Barb. 253, 276 ; People v. Clarke, 10 Barb. 120, 141 ; affl'd 11 Barb. 837 ; 9 N. T. 349. ' Appendix No. I. , this volume ; People v. Livingston, ibid. sup. * Hoffman's " Treatise upon the Estate of Corp. of City of N. Y." (2d edit.), I. 312 ; Bartow ». Draper, 5 Duer, 130, 143. INFLUENCE OF DUTCH LAWS. 69 In the first place, these Dutch tenures were pursuant to the English laws of 1664-65 ' converted into socage tenures be- fore the streets were established or dedicated. The pre- sumption of law soon was and now is that such English laws were complied with." The lands thus became socage lands, and the title to streets opened afterward through socage lands must naturally have been determined by the principles of the English law. Nor could the Lord Pro- prietor assert that he succeeded to the rights of the Dutch sovereign in regard to the soil of such new streets ; for as proprietary the Duke's powers were wholly defined by the patent from the King.' Indeed, a limited and successor government can rarely succeed to the political or feudal rights of its predecessor in the political power. It is pre- vented from so doing by the limitations on its own sover- eignty or power.* There may be other instances where the jurisprudence of New Nether] and has had an influence on the subsequent procedure of the courts of New York.' Their considera- tion is not pertinent to our subject, as these exceptions to the ordinary course of procedure are probably referable rather to the usages or customs of the province than to any formal continuation of the laws of New Netherland. With the few exceptions specially noticed,' the law of New Netherland could have had little force in the province of New York after the close of the seventeenth century, for the English sovereign authorities had then substantially completed the formal substitution of their own laws, by various ordinances and commissions.' If this is true of the ' Supra, pp. 13, 14. ' Bapra, p. 14 ' Appendix No. I., this volume. " Louisiana State Bank v. Orleans Nav. Co., 3 La. 394 ; Guillotte v. New- Orleans, 13 La. 433 ; cf . tlie arguments in Dutton v. Howell, Shower's Par. Cas. 34. 5 Smith «. Kentz, 131 N. Y. 169, 175 ; Magown ®. Sinclair, 5 Daly, 63, 67 ; re Brick's Estate, 15 Abb. Pr. 13. * The statutes of the province show one or two other exceptions— Van S., I., 83, 97— relating to interpretation of Dutch wills, etc. ; Law of 39 Oct., 1684, relating to Dutch mortgages ; but these affect rights guaranteed by the articles of surrender in 1664. ' This subject is treated of at length in the Historical Introduction to the Grolier Edit, of Bradford's N. Y. Laws of 1694. 70 ENGLISH COMMON LAW. provincial period, it is of course d fortiori true since the birth of the State. Thus it is apparently unnecessary to resort to the origin of the English title to New Netherland in order to get rid of the doctrine, that the laws of the con- quered remained in force until abrogated by the conqueror.' That the English title to New Netherland was derivative was always conceded by the law officers of the Crown sub- sequent to the cession of the province after the treaty of Westminster." To attempt to reverse this admission and the facts and the verdict of history seems futile ; and as the mode of the introduction of English law is capable of ascer- tainment, it is also unnecessary. In this connection it should be observed that there can- not be a rigid application of the statements of the great Eng- lish commentators concerning the introduction of the com- mon law into the American possessions.' Their statement that the laws of the conquered remain in force until abro- gated by the conqueror, is subject to many limitations not always laid down. For instance, it has no application when the conquered have abandoned their ancient home to the subjects of the conqueror.* It would seem to have equally little application to New York after the death or the natu- ralization of the Dutch antenatU But it is unnecessary to pursue further limitations of this doctrine. The burden of proof is on him who asserts that the com- mon law of the English was not in force in the province of New York," and this rule in itself is for present purposes conclusive in most of its aspects. But by this it is not meant that aU the common law of England was so put in force here, but only in so far as it was suited to the new political conditions ; for particular institutes of our law a, c. I., p. 24. ' Sir John Werden in re Penn's grant ; cited in Pea Patch Island Cas?, 1 Wallace, Jr., U. 8. Clr. Ct. R. Appendix, p. xxxi., note. ' Note to 17 Abb. New Cas., p. 491, on the " Sources of American Colonial Law." * Hall V. Campbell, Cowper, 212 ; Phillips v. Eyre, L. R. 6 Q. B. 1, 18 ; Chalmers' " Colonial Opinions," 215. ' Supra, pp. 14, 15. « Canal Appraisers v. People, 17 Wend. 571, 617 ; Canal Comm'rs v. People, 5 Wend. 423, 446 ; cf. Wheaton v. Peters, 8 Peters, 591, 658, 659 ; Mayor, etc. «. Hart, 95 N. Y. 443, 450. INDEPENDENCE. 71 often differed from those of tlie older civilization.^ Some of these differences liave been mentioned. The changes occasioned in the law relative to the socage tenure by the War of Independence and the establishment of a republican form of government will be next considered. ' Rensselaer Glass Factory v. Reid, 5 Cow. 587, 633 ; Morgan «. King, 30 Barb. 14 (reversed above on another point, 35 N. Y. 458) ; Wheaton v. Peters, 8 Peters, 591, 658, 659 ; Canal Appraisers v. People, 17 Wend. 571, 618, 623 ; Cutting V. Cutting, 86 N. Y. 583, 539. CHAPTER IV. The outbreak of actual hostilities on April 19th, 1775, caused the government of New York to be carried on for a time by Revolutionary committees, congresses, and conven- tions.' In the southerly part of the province the military forces of the Crown administered a quasi-civil government until the definitive treaty of peace with England in 1783.' The " Resolves" of the purely Revolutionary governments were in the main of a temporary character, and but one of them relates to the socage tenure. It declared that " the quit-rents, formerly due to the king, are now due to the convention, or to such future government as may be here- after established in the State." ' The first republican Con- stitution of New York made these Resolves, when not re- pugnant to such Constitution, a part of the permanent and fundamental law of the new State.' When the Legislature had been organized, a statute was passed formally vesting the quit-rents in the people of the State, in whom the sov- ereignty and seigniory of aU lands, tenements, and heredita- ments were declared to be united." This Revolution at first created no great change in the private law of New York. After all successful revolutions public law is first remodelled and the private law appears to be unchanged ; but nevertheless the change in the public law has sown seed which will sooner or later bear the fruit ' Butler'8 " Outlines of Const. Hist, of N. Y.," 48. ' In territory within the British lines probates of wills, intestate succession to estates, etc., were governed by the old law until this treaty took efiect. ' Journ. Prov. Conv., I., 554. * Sec. 35, Const, of 1777. « Third session, c. 25, Laws of 1779, sec. 14 ; IJ. & V. 44, sec. 14. This act is commented on in De Peyster ». Michael, 6 N. Y. 467, 503 ; but this case is not approved so far as its statement about the Statute of Quia Ehnptores is concerned, 19 N. Y. 68, 75. LAW OF DESCENTS. 73 of change.' With the cessation of hostilities, the Legisla- ture turned its attention to the condition of the laws. In the year 1782 was passed the first of a series of acts affect- ing real property." This act converted estates tail into estates in fee simple absolute ;' it abolished primogeniture as a rule of descents, and made real estates partible inher- itances, in which all the issue of equal degree shared alike, and in default of issue the estates went in equal shares per stirpes to the next of blood of the last owner. Until the passage of this act the canon of descents had been wholly regulated in New York by the English law.' The English law of wills was, as we have seen, intro- duced in the year 1664 as one of the incidents or concomi- tants of the socage tenure," although the Dutch antenati long preserved under the English regime their own customs concerning their inheritances.' In England, by the Statute of Frauds, 29 Car. II., c. 3, wills of lands were regulated. They were to be in writing, signed by the devisor or by his direction, and attested in his presence by three or four credible witnesses. This act seems to have been deemed to extend to the province,' and therefore the act 25 Geo. II., c. 6 (further regulating wills in those English plantations where the Statute of Frauds or some local equivalent ex- tended), must also have been in force here' prior to Inde- pendence. The private rights of those who adhered to the Revolu- tionary governments were very little, if at all, affected by the separation from the Crown. Their rights, titles, and estates in lands remained as before the war.° The State ' Ortolan's Int'd. to " The History of Roman Law." » Session 6, c. 2, Laws of 1782 ; revised in 1786, 1 J. & V. 245. The act of 1782 was defective. See Jackson ex dem. v. Van Zandt, 12 Johns. 169. ' It did not provide for all cases. Of. 1 J. & V. 245, and Medcef Eden's Case, 20 Johns. 483. * Story on the Const., 77, and note, p. 78. ' Supra, p. 18. " Supra, pp. 14, 18. ' Supra, p. 17. Infra, p. 78. " For an account of the Probate Jurisdiction in the Province, see Introduc- tion to Redfield's " Law and Practice of Surrogates' Courts." ' Kelly v. Harrison, 2 Johns. Cas. 29 ; Jackson v. Lunn, 3 Johns. Caa. 109, 74 EFFECT OF DISMEMBEEMENT. Constitution of 1777 expressly declares that nothing therein shall be construed to affect any grants of lands within this State made by the authority of the said king (Geo. III.) or his predecessors.' At a later day the sheltering protection of the Federal Constitution precluded even the State itself from passing any law impairing the obligation of contracts.' The old royal patents to individuals, when involving prop- erty, came within the purview of this federal limitation of the political authority of the State," which Chancellor Kent, indeed, deemed to extend even to political rights emanating from charters granted by the Crown;* but this extreme view ultimately proved quite erroneous." As the War of Independence was a civil war, out of which grew new sovereignties, many questions naturally arose concerning the status and the property rights of those who adhered to their former allegiance. ° The dismemberment of the British Empire was a new event in the history of the English-speaking peoples, and their common law conse- quently offered only remote analogies' to the solution of such questions. Chancellor Kent, who lived so near to the struggle as to be almost an actor in it, has contributed to this branch of jurisprudence a chapter of high value,' which leaves nothing more to be said ; but it is proper to point out that the adjudications cited by him were often the de- cisions of the courts of the victorious power. Now it has been well said that " war legislates," but such legislation is necessarily less enduring than that which is associated with an epoch of peace. The War of Independence is, except that they might not be able to transmit them by descent to their Eng- lish kindred. Infra, p. 76. ' Sec. 36 ; People v. Clarke, 9 N. Y. 349, 360 ; s.c. (below), 10 Barb. 120, 140. » Sec. 10, Art 1. » The doctrine of the Dartmouth College Case of course applies a fortiori to royal patents to individuals. < Kent's " Charter of the City of N. Y.," note xlvi., p. 171. Bast Hartford v. E. H. Bridge Co., 10 How. 511, 538 ; People v. Morris. 13 Wend. 825. « Jackson «. White, 20 Johns. 313, 322 ; Appendix No. II., infra. ' Ch. Justice Lansing ofEers a remote one in the case of Normandy. Kelly v. Harrison, 2 Johns. Cas. 29. ' 2 Kent's Com., Lecture xxv. FOEFEITED ESTATES ACTS. 75 however, now so remote as to make the questions indicated of less importance than formerly in the devolution of titles to real estate in Kew York ; especially in view of the treaties which ultimately regulated many such questions. The peculiar dignity and justice of the American Kevolu- tion undoubtedly conferred on civU wars in general a cer- tain juristic status. The courts of this country gave to most of the subjects of the King of England residing in the colonies a reason- able time, dependent on the circumstances of each particu- lar case, in which to elect whether to abide by their old allegiance, and depart out of the jurisdiction, or to remain with the new political society.' Many estates of disaffected persons were, however, confiscated and sales made by com- missioners of forfeitures, who were appointed under the acts of attainder and forfeiture." In such cases particular titles are derived directly from the acts of the Legislature. The rights and estates of the purchaser are also deduced from such acts.' The act relative to the sales of the estates of the Earl of Dunmore, Oliver de Lancey, Esq., Mr. Justice Ludlow, Mr. Justice Jones, Peter Du Bois, Esq., and many other gentlemen of the province who had adhered to the king, and were specifically named in the act, was vested in the people of the State.* The powers of the commissioners of forfeitures to make sales arose by force of the statutes, ° and new estates were limited by assurances executed by virtue of such statutory powers. Like aU delegations, the powers needed to be strictly pursued. ' The estates thus derived un- der these acts were not yet alodial, but were by provisions of the act of forfeiture held by the socage tenure of the people of the State in their political capacity, as successors ' Chapman's Case, 1 Dall. 53, 58 ; Jackson v. "White, 20 Johns. 313, 322. « 0. 25, Laws of Third Session (1779) ; and of May 12th, 1784 ; 1 J. & V. 159. ' See " Sales of Property made by Isaac Stoutenburgh and Philip Van Cortlandt, Commissioners of Forfeitures," etc., compiled by John S. Ames, N.Y., May, 1885. * C. 25, Laws of Third Session (1779). = Ibid., 1 J. & V. 159. « Infra, c. VIII, on Powers. T6 EESIDEHT LANDHOLDEES. to the subverted sovereignty and seigniory of the king. The acts expressly vested all rents, escheats, duties, and services by which estates were held, or which were annexed to them, in the new political corporation, and when such , estates were sold or parceled out again by the State, they were presumed to be held in the same manner as estates, not confiscated. But in 1787 the forfeited estates theretofore granted out by the State were made alodial by the " Act concerning Tenures." ' The rights of resident landholders were not greatly changed by independence of the Crown. The following are among the principles established by the courts of this coun- try : 1. That as the division of an empire does not^er se work a forfeiture of vested rights, the existing titles of British subjects acquired prior to the Revolution remained unimpaired after Independence." 2. That independently of treaty such titles could not be transmitted by descent to those remaining in subjection to the kings of England, such persons being regarded as aliens, whether born here or abroad. ' 3. That persons of full age, born or living in the province of New York, and remaining here after the out- break of hostilities, animo manendi, were citizens of the new State.' Their remaining under the protection of the State was conclusive in law of an election to become its citizens, and if they indulged in treasonable practices, they were exposed to its penalties.' 4. A coroUary of all this would appear to be, that if such persons so remaining were not attainted of treason (their status as citizens being fixed by law), they had capacity to transmit title by descent, however disaffected they might be to the State govem- ' Infra, p. 80 ; 3 J. & V. 67. ' Kelly «. Harrison, 2 Johns. Cas. 39 ; Jackson -o. Lu in, 3 Johns. Cas. 109 ; Airhart is. Massieu, 98 U. S. 491. 5 Orser «. Hoag, 3 Hill, 79 ; Brown «. Sprague, 5 Denio, 545 ; Munro ■». Merchant, 38 N. Y. 9 ; Blight v. Rochester, 7 Wheaton, 585 ; Inglis v. Trus- tees Sailors' 8. H., 3 Peters, 99. * M'llvaine v. Coxe's Lessee, 3 Cranch, 380 ; 4 Cranch, 209 ; Peck «. Young, 36 Wend. 613 ; Kelly «. Harrison, 3 Johns. Cas. 30 ; Jackson v. White, 30 Johns. 313, 334 ; Munro «. Merchant, 38 N. Y. 9. ' See authorities last cited and Chapman's Case, 1 Dallas, 53 ; 1 J. & V. 39, £.35. EBPtTBLIOAN EEVISION. 77 ments.' 5. On the other hand, the capacity to inherit de- pends upon the allegiance at the moment of the descent cast." 6. In case descent was thus cast on an infant, born and living out of the State, such infant might for some pur- poses, it seems, when sui juris, determine his citizenship by an election ; but until the time of such election he re- tains the capacity of a citizen.' 7. A naturalization before office found bars the escheat of the State, at least where the alien has acquired by way of purchase.* It was only after the definitive and permanent treaty of peace that a new era of legislation began in New York. Samuel Jones and Richard Yarick were then appointed to collect and reduce into form for re-enactment all the acts of the Legislature of the province of New York, and such of the statutes of England and Great Britain as were sup- posed to extend to New York on April 19th, 1775.' In other words, they were directed to make a version explana- tory of the thirty-fifth section of the Constitution of 1777, which had adopted such laws as the future laws of the new State. In this way the uncertainty about the statutes of England was authoritatively settled, ° for after the acts of Parliament had been revised and made consistent with the new republican institutions, the Legislature by an act de- clared that none of the statutes of England or Great Britain should be considered as laws of this State.' The English statutes as thus revised and re-enacted were not deemed to be new laws in New York, but old laws re-enacted in a more suitable form, and continued in force here, pursuant to the thirty-fifth section of the Constitution of 1777.' • M'llvaine ». Coxe's Lessee, 4 Cranch, 209. « Orser v. Hoag, 3 Hill, 79 ; People «. Conklin, 8 Hill, 67 ; Peck x. Young, 26 Wend. 613, 625 ; Dawson «. Godfrey, 4 Cranch, 321 ; Blight ». Rochester, 7 "Wheat. 535 ; Shanks ®. Dupont, 3 Pet. 242. » Ludlam «. Ludlam, 36 N. Y. 356 ; cf. Munro v. Merchant, 28 N. Y. 9 ; Shanks ». Dupont, 3 Pet. 242. * Jackson «. Beach, 1 Johns. Cas. 399 ; People «. Conklin, 2 Hill, 67 ; Jack- son ex dem. ■». Green, 7 "Wend. 333, 335. ' Laws of Ninth Session, c. 35 (1786). ' Supra, p. 54. ' C. 46, Laws of 1788 ; 2 J. & V. 282 ; Levy ®. Levy, 6 Pet. 103, 110. 8 Van Rensselaer «. Hayes, 19 N. Y. at p. 74 ; Corning v. MoCuUough, 1 N. Y. at p. 64 ; Jackson ». Schutz, 18 Johns, at p. 186 ; see reviser's note to 78 ENGLISH STATUTES EEVISED. The revision of the laws by Jones and Varick' occupies an important place in the history of the statute law of New York ; it determined what English statutes had extended to the province of New York, and were therefore adopted by the first Constitution of the State. The " Act concern- ing Dower"" and "An Act for Preventing Waste'" con- solidated all the English statutes on these subjects prior to the end of the reign of King Edward VI. ; " An Act con- cerning Tenures" ' embraced the substance of the Statute Quia Emptores Terrarum, and of 12 Car. II. , c. 24, reform- ing the socage tenure and abolishing feudalism. " An Act concerning Uses" " re-enacted the substance of the " Statute of Uses" (27 Hen. VIII., c. 10), and contained a clause of the Statute of Frauds (29 Car. II., c. 3) relative to execu- tions against cestuis que use. " An Act for the Preven- tion of Frauds" ° contains the substance of 13th and 27th Elizabeth against fraudulent conveyances and of 29 Car. II., c. 3, concerning the memoranda in writing requisite to the enforcement of certain conveyances and trusts of lands.' " An Act to Reduce the Laws concerning Wills into one Statute" ° embodies the substance of the English Statute on Wills (32 Hen. VIII., c. 1 and c. 5, and 29 Car. II., c. 3) ; " An Act concerning Fines and Recoveries of Lands and Tenements" ° and " An Act for Preventing and Avoiding Alienations by Tenants for Life and Recoveries by Collu- sion" " consolidated a great number of English statutes. A statute of distributions " embodied the earlier provincial law of 1697, which had been in its turn founded on the Statute of Charles II. (22 and 23 Car. II., c. 24), and the latter on the one hundred and eighteenth novel of Justinian. Part II., c. 1, Tit. 1, Art. 1, R. S.; People v. Clarke, 9 N. Y. 349, 362; 4 Kent's Com. 494. ' " Laws of the State of New York, comprising the Constitution and the Acts of the Legislature since the Revolution, from the First to the Twelfth Session Inclusive." New York : Printed by Hugh Gaine, etc., MDCCLXXXIX. = 2 J. & "V. 4. = Ibid., 7. *■ Ibid., 67. « IHd., 68. « Ibid., 88. ' The Statute of Frauds (29 Car. II.) being enacted after New York had a legislature of its own, was not in force In New York stricti juris ; but we had here earlier laws requiring deeds to be in writing {supra, p. 16). After 1691 the English statute was probably regarded as extending here, for other- wise why was it re-enacted in Jones and Varick's Revision ? 8 2 J. & V. 93. ' Md., 84. '» IWd., 98. " Ibid., 71. FUNDAMENTAL LAW OF THE STATE. 79 But this revision did more than consolidate and adopt the English statutes. The rule of the common law in re- gard to estates in Joint tenancy was so changed as to pro- vide that in no case (except that of trustees or executors) should such estate in joint tenancy arise, unless the instru- ment creating it expressly declare that the same shall pass not in tenancy in common, but in joint tenancy.' The act of 1782 abolishing entails' was revised in a very thorough manner,' much extolled by jurists,* while the new law of descents (c. 2, Laws of 1782) was perpetuated,' but not so as to enable aliens to take by descent.' The State Constitution having adopted as the future law of the State such parts of the common law of England, the statute law of England and G-reat Britain, and the acts of the Legislature of the colony (province) as together did form the law of the said province on April 19th, 1775,' it may readily be perceived from what has been said, that at the time of Jones and Varick's revision the law of New York relating to the socage tenure did not differ materially from the like branch of the law of England. This revision did not destroy such similarity ; it was a redaction rather than a revision of the English statutes already in force. The statutes of the province of New York were left untouched in the main, until their final repeal in 1828-29.' The effect which the Revolution and Independence had on the socage tenure was embodied in the Statute of 1779 ;* the seigniory of all lands was declared to be in the people of the State in whom the political sovereignty then resided. This was, after all, only the substitution of a corporation aggregate as chief lord of the fee, instead of a corporation sole. " The ' IJ. & V. 347. ' Supra, p. 73. ' IJ. & V. 345. ■* Medcef Eden's Case, 16 Johns, at p. 403. » Supra, p. 73 ; IJ. & V. 345 ; Lott e. Wykoff, 2 N. Y. 355. « Jackson v. FitzSimmons, 10 "Wend. 9 ; Luhrs «. Eimer, 80 N. Y. 171, 179. ' Sec. 35, Const, of 1777 ; Preface to 1 Johns. N. Y. Reports ; Journeymen Cordwainers' Case ; Yates' Select Cas. Ill ; Const, of 1823, Art. 7 ; Const, of 1846, Art. 1 ; Const. 1894^95, Art. I. 8 C. 21, Laws of 1838-29. ' 1 J. & V. 44, sec. 14. " It is said that none can hold except of a man's person ; but Mr. Har- 80 THE "act oonceening tenuees." incidents of socage tenure remained the same as before. The "Act concerning Tenures'" instituted no sensible re- form in the incidents of lands already in tenure." Nor could it do so with safety, for the thirty -sixth section of the Constitution of 1777 by implication' confirmed all the old Crown grants, and the remedies connected with them depended then on tenure. The " Act concerning Tenures" did, however, provide that the " tenure of all grants of any manors, lands, tenements, or hereditaments by any letters patent under the great seal of the State should be " allo- dial" and " not feudal." ' This expression has been much criticised,' because " allodial" and " tenure" ordinarily de- note contrasted conceptions,' and where there is an " alo- dium" there is no " tenure." ' The intention of the " Act concerning Tenures" is clear ; it was, that the grantee of unpatented lands should hold the same in absolute property, divested of the feudal notion that there was a higher dominion over the land.' This use of the word alodial" adopted by Jones and Varick was not new. In the charter of " Freedoms and Exemp- tions" for the Dutch West India Company, under which the patroonships were founded in New Netherland, the lands within the fiefs of the patroons were " to remain alodial." " But this term was then sometimes employed to denote inheritable lands, and at other times to indicate lands opposed to beneficiary or feudal lands. " In the act of 1787, " grave's note 117, Co. on Litt. 108a, is not applicable to tenures in a republic, ■where they survive only by force of a statute, -which can declare an entirely new principle even in regard to feudal tenures. Besides there may be tenures of a corporation sole — e.g., a bishop. ' 3 J. & V. 67. » Cornell ». Lamb, 3 Cowen, 652. » People V. Clarke, 10 Barb. 120, 140 ; affi'd, 11 Barb. 337 ; 9 N. Y. 349 ; Art. 7, Const, of 1822 ; Art. 1, Const, of 1846 ; Art. 1, Const, of 1894-95. * 3 J. & V. 67. « 3 R. S. 564, reviser's note ; 3 Wendell's Bla. Com. 60. « Hallam's " Middle Ages," I., 97. ' Compare the reform instituted by the Dutch in feudal tenures, whereby they held the lands within a flef, as if alodial ; p. 8, supra. * Cf. Freeman's " Norman Conquest," I., 58. » Oftentimes " allodial," e. g. Const. 1846. "> Doc. rel. Col. Hist. N. Y., I., 130 ; mpra, p. 8. " Hallam's " Middle Ages," I., 150. " 3 J. & V. 67. ALODIAL LANDS. 81 the word " allodial" was employed as the antithesis of "tenure;" it meant "free of tenure.'" Chancellor Kent doubted whether the creation of alodial property in land was a useful reform, as " socage lands" were then free from all feudal burdens. But the reform nevertheless led the way to the modern changes effected by the Revised Statutes, when all the lands in the State were made alo- dial," and when the old learning concerning real property was swept away in whole or in part. After the passage of the " Act concerning Tenures" ' there were, until the Revised Statutes abrogated the dis- tinction, two classes of lands in New York — the ancient socage lands derived from the grants by the Duke of York or from the English Crown and its predecessor in the sover- eignty,' and the alodial lands patented under the great seal of the State of New York. The latter were free of quit- rents, fealty, relief, and escheats. It has been said that this distinction was preserved for the purpose of enabling the State to enforce the payment of the quit-rents, due formerly to the Crown, ' and vested by several acts in the newly sovereign State. °» But this is too narrow a statement, in view of the great number of old patents, manors, and lands, " farm" and " burgage," held by the ancient socage tenure. These patents were expressly saved by the first Constitution of the State.' The " Act concerning Tenures" (which re-enacted provisions of both the Statute Quia Emptor es and 12 Car. II., c. 24, abolishing knight service and feudal burdens) contained a clause taken from the latter act, to the effect, " That this Act, or any Thing herein con- tained, 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, due or to grow ' Preeman's " Norman Conquest," I., 58. 5 Infra, c. V. and c. VI. » 3 J. & V 67. ■* Lands granted by the Dutch government were changed so as to be held by the socage tenure ; supra, pp. 14, 66 ; but compare People v. Clarke, 10 Barb. at p. 141. ^ Jackson v. Schutz, 18 Johns. 180. « Bapra, pp. 73, 76. ' Const, of 1777, section 36. 82 LOEDS OF THE MANOES. due to the People of this State, or any mean Lord, or other private Person or the Fealty or Distresses incident there- unto." ' The purport and intention of this saving clause were to express the constitutional rights of the lords of the manors, and the rights of the State as successor to the Crown, and consequently chief lord of the fee. Without some such reservation of fealty, which followed the rever- sion," distresses for rent might have been taken away in some cases.' In reviewing the " Act concerning Tenures," Chief Justice Spencer, in Jackson «. Schutz,* said, " Here are neither lords nor knights." The learned judge seems to have for- gotten, that whether the manors of New York were legal manors or manors only by reputation, there were then by courtesy in New York a number of titular and legalized "lords of the manors," holding under Crown grants con- firmed by the Constitution of 1777. ' The saving clause of the "Act concerning Tenures" was therefore neither ab- surd nor needless to protect certain possible rights,' such as distresses, of this class of landed proprietors. The enact- ment of provisions contained in the Statute of Quia Emp- tor es Terr arum, in our " Act concerning Tenures," was not because the English statute was not in force in the prov- ince, as is sometimes said,' but because it was so in force.' > 2 J. & V. 68, section 5. » Co. on Litt. 143o, 93a. ' Cornell «. Lamb, 3 Cowen, p. 656. It Is hardly necessary to remind the reader that " fealty" was closely associated with the old common law reme- dies. This may be perceived from the fact that by the feudal law the " oath of fealty" might be taken to the seneschal or bailifE of the court, whereas " homage" could only be done to the seigneur himself. (Guizot's " History of Civilization," III., 155, 156, 158, 159.) Homage was taken away by the Statute 12 Car. II., c. 24, for when fiefs were hereditary in law homage was a useless ceremony, while fealty was left by the statute. (Supra, pp. 33, 38.) * 18 Johns. 174, 178. ' The Revolutionary lawyers of New York knew quite as much of real prop- erty law as their students and successors (see Chan. Kent in Medcef Eden's Case, 16 Johns. 882, 411). ' The seigniorial rights do not, however, seem to have been asserted in Van Rensselaer v. Hayes, 19 N. Y. 68 ; et supra, pp. 32, 34. ' Van Rensselaer v. Smith, 27 Barb, at p. 148 ; De Peyster «. Michael, 6 N. Y. 467. ' Van Rensselaer v. Hayes, 19 N. Y. at p. 74. CONSTITUTION OF 1777. 83 The counsel who drew the " Act concerning Tenures" had a clearer conception of the task before them than Chief Justice Spencer seemed, wholly to appreciate when he wrote the opinion in Jackson v. Schutz. Again, this act is in harmony with the preceding legislation of both the Revolu- tionary and the State governments, which expressly placed the abstraction or political corporation called the State in the place of the Crown m all its prior relations to the common law tenure of New York. In this manner the law concerning remedies and procedure were kept in ac- tual accord with the changed poKtical condition, while old forms so potent in judicial administration were pre- served.' The Constitution of 1777 was drawn by lawyers very familiar with the needs of the province, and the grants and property rights of the manor proprietors were consequently not disregarded by the terms of that instrument." The protection thus accorded was much deprecated at the time by those most hostile to the institutions of England ;° but this hostility did not prevaO. : the ancient manors were re- peatedly recognized by the Legislature of the State* as exist- ing and continuing institutions, and their various acts adapting the former laws and statutes to the new govern- ment expressly saved the rents and services due to the manor proprietors. The "Act concerning Tenures" pro- vides, " That all conveyances and Devices of any Manors ... at any time heretofore made shall be expounded to be of such effect, as if the same manors . . . had been then held . . . in free and common socage only," and that the act shall not take away any rents certain or other services incident to that tenure and belonging to any " mean Lord." ' This act was an auxiliary iu the protection of the rents and services due to the titular lords of the manors, and was embodied in the revision because the English ' The change of the socage lands to alodial lands by the R. S. is discussed further in c. VI., infra. » Const, of 1777, section 36. ' Article in N. Y. Daily Advertiser, March 4th, 1789, " Beware of Lawyers." ^ C. 43 of Eleventh Session, 1788 ; 3 J. & V. 260 ; 2 K. & R. 4, 81. » 2 J. & V. 67. 84 MANOES UNDER STATE LAW. Statute 12 Car II., c. 24, and the Statute of Quia Emptor es extended to the province. ' Whatever the motive animating the " Act concerning Ten- ures' ' may have been, it in effect recognizes the manors of the province, though not necessarily as "legal manors." It does not mention any seigniorial rights of the manor proprietors. It, therefore, leaves the seigniories themselves much as they stood before Independence, when they were never adjudicated legal." It would have been hardly com- petent for the Legislature of a republican State to validate those seigniorial rights, which were at best of doubtful validity under the Crown itself. It was consequently as " reputed manors" only, or as mere territorial designations,' that the ancient manors of the province endured under a government inconsistent with personal privileges and seign- iories. The State Legislature subsequently in several in- stances treated the "reputed manors" simply as political corporations, and as such for a time the freeholders of the manors became numerically prominent politically. When the courts of the State finally declared the patents valid as land grants, irrespective of the seigniories,* the political importance of the manors had relatively decayed. The abolition of primogeniture and the availability of fresher agricultural lands soon tended to reduce the manor lands to the level of other farms in the State. The successors of the lords of the manors forgot their seigniorial rights, if they ever existed, and preferred to place their rights of property on the secure basis of contract, and not on the doubtful basis of tenure. The Revised Statutes by its nominal and final destruction of tenures only despatched a dying institu- tion. The State Legislature had meanwhile made the rights and the remedies on fee farm grants within the manors tolerably secure independently of the validity of the seign- iories. There was no longer a motive to affirm the right to have a manor, and the seigniories effectually lapsed. The revisers, Jones and Varick, next addressed themselves to the task of making the rules of law relating to alodial lands uniform with those well-known and venerable principles ' Bupra, P- 35. « aupra, c. II., p. 33 ; 2 J. •& V. 260. ' 3 R. S. 6. < People ®. Van Rensselaer, 9 N. Y. 291. BEVISION. 85 of law tlien affecting socage lands. In the course of this task it must have been very apparent to the revisers that the reforms effected, in the reign of King Charles II. in the socage tenure' had made socage lands, as Chancellor Kent believed, practically alodial, or absolute property in the highest sense of the term." An act of the year 1787 provided that alodial lands should be a forfeit to the State, on a conviction for treason of the owner,' or by his convic- tion of a felony.' A later act provided for escheats of un- devised lands in the event of the death of the last owner without right heirs." In this manner and by judicial de- cision' the incidents of alodial lands were assimilated to those of socage lands, in so far as estates, devolution of title, and the seigniory of the State were concerned ; but forfeitures by reason of the alienage of the owner of lands derived immediately from the State were not expressly pro- vided for. The common law, but somewhat modified by several statutes,' regulated the forfeiture of socage lands for alienage until the year 1829,' and although on principle this part of the common law had little application to lands granted under the great seal of the State in pure and free alodium, it was applied to them, and consequently made grants to an alien inoperative." The courts soon applied the Statute of Uses and the common law rules of estates in socage lands to alodial lands.'" Prior to the Constitution of 1822 the statute law of the State was again subjected to two authorized revisions. The first of these was made by Mr. Justice Kent and Mr. Justice Radcliff," the second by Messrs. Van Ness and Wood worth." The latter is now known as the Revised Laws of 1813, or I Supra, pp. 33, 36, 38. '' Supra, pp. 80, 81. ' 2 J. «& V. 57. * 2 J. & V. 243. 5 1 E. L. 379. ' In Jackson v. Davenport, 20 Johns. 537, we may see an interest in the new alodial lands decided hy the books on tenures — e.g., Co. on Litt. In Cornell «. Lamb, 2 Cow. 652, distresses were said to extend to alodial lands. ' C. 72, Laws of 1798 ; c. 49, Laws of 1805. ' Jackson v. Lunn, 3 Johns. Cas. 109. ' Bro. Abr. tit. " Patentes," 62 ; Finch L. Ill ; 3 Bla. Com. 347 ; but see Goodell «. Jackson, 20 Johns. 693, 707 ; Jackson v. Etz, 5 Cow. 314. I" Jackson v. Root, 18 Johns. 60 ; Jackson v. Davenport, 30 Johns. 537. " Pursuant to c. 190, Laws of 1801. " Pursuant to c. 150, Laws of 1811 ; R. L. of 1813, II., 555. 86 EECOED OF DEEDS. the New Eevised Laws, and is cited " K. L." This revision virtually superseded the several prior revisions by Jones and Varick and by Kent and Radcliflf. If we compare the English statutes relating to the socage tenure as contained in these three revisions, we shall find little change in the early text of Jones and Yarick' s edition. There were no other authorized revisions until the " Revised Statutes." ' From the year 1794 the law reports of New York are con- tinuous. The regular chancery reports begin only with the year 1814.' The early reports enable us to ascertain in many instances how far and in what respect the land law of New York, as it stood before the Revised Statutes, differed from the contemporary law of England. Unlike Massachu- setts, Maryland, and Virginia, ' we have no reports of cases decided prior to the War of Independence, although some of the judges of this province were learned men, as is attested by their pupils, the great Revolutionary lawyers, at once statesmen, jurists, and soldiers. The adjudications of this period are fortunately not inaccessible in all cases to those who have sufficient interest in the origin of our legal institu- tions to follow this subject under difficulties to its fountain- head. Such opinions are often valuable expositions and applications of the law of the land. This account of the changes effected in the law relating to land by the authority of the new State government ought to take note of one very powerful auxiliary. It is intended to refer to the laws regulating the record of deeds and other instruments concerning lands and estates in lands. The registration or record of deeds in public offices pur- suant to recording acts is often esteemed a peculiarity of the law of this country. Such an inference requires to be modified. It is true that this practice is of early date in America, especially in New England, Virginia, and New York. Even the law of New Netherland was not silent on this point.* When the English came into the possession of ' Infra, c. V. ' Chancery appeals are of an earlier date in the " Cases in Error." « 29 Amer. L. Rev. 148, 149. * Laws and Ord. of New Neth. 114, 459 ; Van Cortlandt t>. Tozer, 17 Wend, at p. 340 et aeq. STATUTE OF ENROLMENTS. 87 the province in the year 1664, very stringent provisions/ taken out of the laws of the other colonies, were embodied in the "Duke's Laws," as the first New York book of English laws was called." In the years 1683 and 1684 like laws were enacted by the first regular assemblies. ' Whether these laws will account for the practice of recording deeds after the year 1691, in view of the Assembly's resolution of that year, is one of the unsettled questions.* In the year 1753 mortgages of lands were required to be registered in the clerk' s office of the county where the land lay. When so registered, a mortgage took precedence of unregistered transfers ;' but until the Revised Statutes there was no uni- form or general act in New York requiring deeds to be re- corded.' Before 1829 the acts were local and confined to particular counties, ' called ' ' recording counties. ' ' As early as 1704 Yorkshire, in England, had been made a recording county by an act of like purport,' and four years later the great county of Middlesex followed.' The decisions of the English courts on these acts were naturally very influential in the construction of the recording statutes of this coun- try," and our law on this head cannot be said, therefore, to be original, although it is now amplified beyond that of most other countries. As the Statute of Enrolments (27 Hen. VIII., c. 16) did not extend to New York, bargains and sales of freeholds ' Duke's Laws, title " Conveyances, Beeds, and Writings." » Supra, p. 13. ' " An act to p'vent frauds in conveyanceing of lands ;" "A Bill to pre- vent Deceipt and fEorgerye." Supra, pp. 17-19. * Supra, pp. 21, 58. 5 Van Schaack, 324 ; 2 L. & S. 19 ; IJ. & V., Appendix VI. This act was followed by c. 45, 2 J. & V. 266, passed February 26th, 1788. Jackson ex dem. V. Dubois, 4 Johns. 216, 221, is not quite accurate therefore in its statement of fact. « Jackson v. Chamberlain, 8 Wend, at p. 625. ' See appendix to first edition of 3 B. S., pp. 25-42. The first was in 1798, 3 Greenleaf, 408. ' 2 and 3 Anne, c. 4 ; see note to Sheppard's " Touchstone," 116, for Eng- lish acts. » 7 Anne, c. 20. '» Hurst i>. Hurst, 2 Wash. Cir. Ct. 69, 74 ; Jackson «. Burgott, 10 Johns. 457 ; Dunham «. Dey, 15 Johns. 555. 88 CONVEYANCING. were valid without enrolment ;' and, contrary to the law of England, a pecuniary consideration was thought sufficient here to support a covenant to stand seised." But as there was always some doubt as to the necessity of an enrolment under the statutes of the province or otherwise, convey- ances usually took the form of lease and release in ]S'ew York, untU after the revision of the English statutes by Jones and Varick in 1788 had set this matter quite at rest.' There were, however, in New York early examples of com- mon law feoffments with livery of seisin.* After the year 1788 deeds of bargain and sale took the place of lease and release as the favorite mode of conveying real property.' Subsequent to the establishment of the State government the courts of New York finally adopted the rule' (thought then to have prevailed in the province), that mortgagees of lands had not ordinarily the legal title thereto, but only a right in re, as security,' enforceable in equity by a sale of the mortgaged premises.' Before Independence the provincial practice of foreclosing mortgages was by a sale under a power of sale or else a strict foreclosure, as in England.' Other differences, some of them radical, began to be manifest and to occasion wide departures from the law of England. In Fenton «. Reed," for example, it was held, in the year 1809, that a contract of marriage per verba de prcesenti is as valid as if made in facie ecclesice. Dower and the common-law rights of the spouses were, of course, affected by this un- fortunate decision. ' Supra, pp. 56, 57, note. ' Jackson ex dem. ■». Dunsbagh, 1 Johns. Cas. 91 ; but see Jackson v. Sebring, 16 Johns. 515 ; cf. Lossee v. Ellis, 13 Hun, 635, 638 ; Sohott v. Burton, 13 Barb. 173, 183. ' Jackson ex dem. v. Myers, 3 Johns. 388. ■■ Infra, c. IX. ' Jackson ex dem. v. Wood, 12 Johns. 73. ' "Waters v. Stewart, 1 Caine's Cas. in Error, 47. ' Jackson ex dem. «. Willard, 4 Johns. 41. 8 Lansing v. Goelet, 9 Cow. 846, 370 ; infra, c. VI. ' See note to Lansing v. Goelet ; cf. Slee v. Manhattan Co., 1 Pai. at p. 68. '» 4 Johns. 52. It has been thought by some lawyers that this case was the result of a misconception of the law of England. It neither examined nor stated the law in the province of New York ; for all marriages were cere- monial under the royal government. Nor did it state the law of England with accuracy. It is nevertheless now a part of our jurisprudence. ATJTHOEITT OF ENGLISH DECISIONS. 89 The decisions of the courts of England made prior to the Revolution formed an important part of the common law adopted by the Constitution of 1777, and in the absence of any conclusive local authority to the contrary, are held to have constituted the law of the province of New York ;' but there were, as we have seen," many departures from the precise doctrines of the English cases. For example, ten- ants in common might here, contrary to the English prac- tice, make a joint demise, and thus maintain in effect a joint action of ejectment." So actual possession, pedis possessio, of wild lands was not necessary to the completion of a ten- ancy by the curtesy.' In Cornell v. Lamb,' it was inti- mated that fealty was no longer necessary to support the right of distraint — a doctrine then probably limited to the owners and tenants of the alodial lands, or those lands then granted and held by a patent issued under the great seal of the State.' What was true of the common law courts was also true of the courts of equity, where the chancellors, especially Kent, adhered very closely to the English precedents,' deprecating the meagreness of the available adjudications in the Court of Chancery of the province of New York,' notwithstanding the antiquity of the domestic tribunal." The latter was founded in the year 1683,'° or before the more influential chancellors of England had ascended the " throne of equity." " Chancellors Livingston and Lansing, how- ever, attached much importance to the practice of the Court of Chancery of the province." ' Jackson ex dem. v. De Lancey, 13 Johns. 537, 556 ; infra, p. 105. ' Supra, c. III. 3 Hasbrouck v. Bunce, 62 N. Y. 475, 480. * Jackson v. Sellick, 8 Johns. 262 ; Jackson ». Gilchrist, 15 Johns. 87, 118. « 2 Cow. 653. * Supra, p. 80. ' Manning «. Manning, 1 Johns. Ch. 527. 8 Cumberland ». Codrington, 3 Johns. Ch. 329, 262. ' Adverted to in Hood v. Inman, 4 Johns. Ch. 437. " Intro, to Hoffman's K. Y. Chancery Practice. " Supra, p. 51. " See, for example, note to Lansing «. Goelet, 9 Cowen, 346. Mr. Johnson's remark, that very little business was done before 1778 in the New York Court of Chancery, often conveys a very misleading notion of the importance of the 90 StTBVEESION OF FEUDAL NOTIONS. From the instances mentioned, we perceive that even prior to the Revised Statutes there was a visible tendency to subvert those rules of law which took their rise in the days of feudalism, or which were independent of the law of contract. The Revised Statutes soon accomplished even greater changes. early existence of an equity jurisdiction in legal administration in New York. Pref . to Johns. Ch. Pr., I. ; cf . Slee v. Manhattan Co. , 1 Pai. 48, 68. and note 26, Grolier Bradford's N. Y. Laws of 1694, p. cxxxli, on right of the crown to erect courts of equity by ordinance. CHAPTER V. THE KEVISBD STATUTES. It is not proposed to consider more than the purely ex- ternal phases of the Revised Statutes' relating to real prop- erty. It was undoubtedly the opinion of many competent persons that the Revised Statutes of New York marked an epoch in the law of English-speaking peoples, in so far as this work related to lands held by the socage tenure •' and after the Statute 12 Car. II., c. 24,' we know that that ten- ure had in fact superseded all other lay frank tenures.* Tenure by frankalmoign," or religious services, never ex- isted here. It was not that this revision was so novel in character, but that it was so comprehensive, dealing, as it did, with the most complicated problems of the common law. At the same time it conserved much that was good in the ancient jurisprudence, whUe literally brushing aside nearly all that was purely scholastic subtlety, very good in its day for unfettering inheritances, but in the year 1827, in New York, archaic. Although the Revised Statutes remain the basis of the law of real property in New York, particular provisions have since been subjected to amendments and alterations, which it is beyond the scope of this essay systematically to pursue. The later annotated editions of the Revised Statutes either contain or indicate such amendments with sufficient accuracy, and they are in the main very fa- ' The references to the pagination of the Revised Statutes are here made to the original edition only, in conformity with the almost uniform custom of the higher courts of the State. ' They were substantially adopted in Michigan, Minnesota, and "Wisconsin, while particular provisions have been enacted in many other States. ' Passed in the year 1660, and taking efEect as from 1645. * Since that statute no lay frank tenure could be created, even by the Crown, without the assent of Parliament. Chetwode Bart. «. Crew, Willes, 614 « Co. on Litt. 935. 92 AEEANGEMENT BY CHAPTEBS. miliar to the profession of the law. To consider them here in detail would, as it is thought, swell the compass of this outline beyond reasonable proportions, and obscure other phases of the subject. After the second Constitution, when revision was contem- plated, the revisers evinced great confidence in the effect of an arrangement by chapters. This they thought would reduce the statutes then in force to half their extent ; it would render them so concise, simple, and perspicuous as to be intelligible not only to professional men, but to persons of every capacity ; it would relieve the statutes from obscuri- ties, lead to easy references by proper indexes, and greatly facilitate the acquisition of the law as a science. Lastly, it would supersede the necessity of all future revisions, and prepare the way for a scientific codification of the law.' This explicit announcement demonstrates that the Revised Statutes are more than their name implies — a revision of statutes only. The third decade of the present century was favorable to a reform of the law relating to land. The subject was then under discussion in England. A barrister, Mr. Humphreys, had lately published a scheme for reforming the socage tenure," which soon received the approbation of the com- mission appointed by King George 17.,' to report the state of the law of England relating to real property.* Mr. Humphreys' outline received the careful consideration of the revisers appointed by the State of New York in the years 1825-27.' The New York revisers remodelled the en- tire statute law of New York ; but they did not stop there, as in numerous instances they reduced the rules of the common law to written texts, inserting them in their appro- priate place.' Their achievement, interpreted by the courts, ' Mr. Butler and Mr. Duer to the Legislature. ' " Observations on the State, etc., of the English Laws of Real Property," London, 1827. > 9 Geo. IV. * This committee made four reports. The first was ordered printed May 20th, 1829. <■ C. 336, L. of 1824 ; c. 324, L. of 1825 ; c. 243, L. of 1827 ; c. 331, L. of 1828. « Preface to the R. S. CONDITIONS BEFOEE EEVISION. 93 furnishes the present learning on the subject of real prop- erty in the State of New York. Prior to the Revised Statutes the actual condition of the law of real property in New York was favorable to the work of revision. The involved system of conveyancing, and the complex modifications of real property rights, em- ployed in England after the reign of Charles II., and, in- deed, after the Statute of Uses (27 Hen. VIII.), were then little known in New York. Limitations in trust were in- frequent, conveyances of lands being usually made directly to the persons intended to have the fruits of the estate. Very few instances involving powers deriving their force from the Statute of Uses' are reported in the early New York books. The powers there met with are generally mere com- mon-law authorities connected with wills, where the estate passed by force of the will. Nor was anything known here in practice of the species of interests in land, called " at- tendant terms" or "terms to protect the inheritance,"' which after the reign of Queen Elizabeth flourished in England, as if seemingly to compensate the lawyer class for those equitable uses destroyed by the Statute of Uses. Therefore it is apparent that only the simpler phases of the English law of real property had been adopted by our con- veyancers, by the year 1830, and that much of the learning of the great property lawyers of England had not then been applied to the creation or to the devolution of estates in New York. But as the first Constitution of the State had made the English law the ultimate rule for all cases not otherwise determined, the chance of acquiring the various scholastic subtleties, grafted on the common law of Eng- land, would increase with the growth of fortunes in New York. Now these subtleties were much deprecated even in England, where the personal and class interests of the Bar specially favored the security and the perpetuation of landed estates, still the real basis of the political system of England. It was only after the New York State Constitution of ' Always in force in New York under the English, and re-enacted in the revision by Jones & Varick, 3 J. & V. 68 ; supra, p. 78. " 4 Kent Com. 90. 94: ME. humpheet's plan of kefoem. 1822-23 that the spirit of democracy was sufficiently strong to break with legal traditions, and triumph over the forces of the old common law, at least in so far as the old socage tenure was concerned ; and the more valuable estates in New York were still of this tenure, although by a curious inversion the lord paramount had then become the people of the State in their political capacity, or more literally, the abstraction called the State served as lord paramount. The New York revisers found two plans open to them : First, that suggested by Mr. Humphreys, a reform of the socage tenure (the law of which had extended by analogy to the alodial lands) ; or, second, to make all lands alodial, abolish every vestige of feudal tenures, and apply to the future acquisition and transmission of the alodial lands cer- tain rules selected from the best of the old ones bearing on the socage tenure. The revisers chose the latter course, although the abolition of the socage tenure never quite met with the approval of Chancellor Kent." In some instances they entirely reformed the antecedent law, and on the whole the changes have been approved and have led to a system much simpler than the one superseded by the Re- vised Statutes. The entire statute law relating to real prop- erty is now displayed in a few chapters, but the use of an ancient and technical terminology makes some knowledge of the old system indispensable for conveyancers. Prior to the Revised Statutes the New York law relative to land was to be found either scattered through the case law of England (modified by the vague canon or hypothesis that such law should be suited to new political and social conditions, and supplemented by the reports of our ovni territorial courts), or else in the great English statutes in- corporated generally in Jones and Varick's revision of 1787-89." The latter had been modified somewhat by later legislation. All this mass of law related to the socage ten- ure. If we add to this that lands granted by the State were already alodial,' but that the laws governing them were in course of constant assimilation to socage lands by methods of attraction and analogy, it is quite easy to per- ceive why any revision of the law by statutory methods ' 4 Com. 3. » Supra, p. 77. ^ 2 J. & V. 67, 68, sec. 5. ABOLITION or ENTAILS. 95 ■was considered desirable after the second State Constitu- tion. As already stated, the condition of the law of real prop- erty was not, before the Revised Statutes, a satisfactory one. The statutes abolishing entails' had accomplished little, for entails might be freely broken and lands rendered alienable by the tenant of the freehold sufiEering a fine or common recovery, thus barring the entail, reversion, or re- mainder, and turning the entailed estate into one in fee simple. Such was a common practice in New York, and one of the first law books published in this State was en- titled " The Theory and Practice of Fines." ' The abolition of entails accomplished little, because land might be ren- dered inalienable for a longer period by a springing use or an executory devise than by an entail. Many of the older common lawyers did not, however, favor the statutes abol- ishing entails, and we find this prejudice reflected in those decisions where the courts made what was regarded at the time as a distinct departure from the common law, hold- ing that certain words, before creating an estate taU, did not now create an estate tail which the statute converted into a fee simple absolute, but created a valid executory devise.' These decisions were not wholly satisfactory ; it was said that if after every reform there was to be a departure from what was formerly regarded as settled law, estates would be rendered less easily alienable than before the statute abolishing entails. In cases involving perpetuities the law always regards possibilities, not probabilities.* " Execu- tory devises" as a mode of limiting future estates possessed through judicial favor some advantages over shifting uses introduced in deeds, but as the former were confined to wills, they were of circumscribed utility. Subsequent to the statutes abolishing entails,' as before those statutes, there were several technical modes by which socage lands in New York might before the Revised Stat- ' Bapra, pp. 73, 79. » A.D. 1794. ' Fosdick D. Cornell, 1 Johns. 440 ; Jackson ®. Blanshan, 3 Johns. 293 ; Jackson v. Staats, 11 Johns. 337 ; Anderson v. Jackson, 16 Johns. 382. * Amory «. Lord, 9 N. Y. 408, 415 ; Schettler s. Smith, 41 N. T. 328. ' Supra, pp. 73, 79. yO LIMITATIONS BEFOEB THE EEVISION. iites be rendered inalienable within the limits then estab- lished against perpetuities. The tenant in fee simple might carve the estate into particles, and by vesting the ultimate title only on certain contingencies after the termination of a short precedent estate, might render it inalienable for a considerable space of time. This class of limitations we know as contingent remainders. By the device of trustees to support contingent remainders, such remainders were put beyond peril, as they then could not be barred or de- feated by a fine or recovery. Future estates by way of contingent remainders might be created by any mode of conveying title to lands. However, no limitation which might be regarded as a remainder could be construed as a springing or shifting use. Uses, called secondary, spring- ing, shifting, or generically future uses, were limitations by which estates could be made to take efiEect in futuro, and they owed their operation to judicial construction of the Statute of Uses (27 Hen. VIII., c. 10). Thus there were prior to the Revised Statutes three classes of limitations creating legal estates to take effect in futuro, and naturally suspending the power of alienation to some extent — remainders, springing and secondary uses, and executory devises. Each had its associated rules of construction, and these rules were not always consistent with each other or in accord with any great political prin- ciple. They were the arbitrary outcome of historic strug- gles over perpetuities. Thus the same limitation might be valid if contained in one instrument and invalid if con- tained in another." The validity often depended on the character of the writing. No contingent remainder in a freehold could be limited on a term of years,' nor could a fee be limited on a fee except by a will or by a shifting or springing use ;° no remainder could be limited after a lease at will.' An estate " to 'A,' remainder to his heirs," gave a fee to "A," and the heirs took nothing.' It was the aim of the revisers of the statutes to abolish all such technical rules and distinctions having no relation to the essential ' Taylor v. Biddall, 2 Mod. 289 ; 2 Bla. Com. 173. » Chudleigh's case, 1 Bep. 130. ^ Walter «. Drew, Comyn, 373. < 8 Rep. 75. « Shelley's Case, 1 Rep. 104. THE EEVISBES' " NOTES." 97 nature of property and resting solely upon feudal reasons. The time was extremely opportune, for, as already stated, the niceties of the law of conveyancing, as practised in England by the great property lawyers, had hardly secured a foothold in New York. Had it been otherwise, the re- visers' task would have met with much more opposition from people of property. The scheme of this revision has been fully indicated by the revisers themselves in their " Notes" and in their Ke- ports to the Legislature, which are often treated as a com- plementary key to the revision itself. In this instance the notes or construction of the revisers ought to receive great weight, for it is demonstrable that the confidence of the Legislature in the revisers was so great as to induce that body to adopt this part of the revisers' work substantially without change. It is true that it was said by Lord Camp- bell, in substance, that the author of an act is little quali- fied to construe it, as he considers more what he privately intended than the meaning he expressed.' But it is to be observed, in this connection, that a contrary opinion has been held in the case of Sir Edward Sugden's comments on his " Act in Relation to Trustees," ■' and our revisers' com- ments seem entitled to a respect quite equal to that accorded to even those of Sir Edward Sugden. It is impossible within the limits prescribed for this essay to discuss the content, or more than the form, of the Re- vised Statutes relating to real property. ' Blackstone's well- known classification, not always acquiesced in by his critics, was very powerful with the revisers, though not conclu- sive. For example, Blackstone chose the term " real prop- erty" as the general title of the second book of the Com- mentaries on the Laws of England, and as embracing "estates for years" as well as "lands," tenements, and hereditaments, which were terms of science in the common law.' The revisers did practically the same.' They, how- ' Lord Campbell's " Life of Lord Nottingham," Vol. IV., Chancellor Series, p. 238. ' Lewin on Trusts, 473 (1st edition). » Chapters 1, 2, and 3 of Part II. of the Revised Statutes. ^ Co. on Litt. la to 6a / Mott «. Palmer, 1 N. Y. 564, 569. M R. S. 717 ; caption of Part XL 98 ALL LANDS ALODIAL. ever, defined "real estate" and "lands" as co-extensive with lands, tenements, and hereditaments,' meaning at com- mon lavF. This gave the term " real estate" in parts of the Revised Statutes a more extended significance than it had at common lavir, for it here embraced " terms of years." ' Thus the Revised Statutes have to some extent deviated from the stricter common law terminology, but wherever this is done the revisers have with precision indicated the deviation. It is most important to notice the extent of such deviation, for otherwise it is impossible to ascertain the change introduced in the law of real property by the Revised Statutes. This is obviously true of that part of the statute which abolishes feudal tenures, for the alodial lands continue curiously like the former socage lands in many of their legal incidents. While the Revised Statutes made all lands alodial' (sub- ject to an escheat for want of heirs of the last owner'), the people of the State in their political capacity were declared to possess the original and ultimate property to all lands within the State.' In these sections we may readily detect the influence of the Statute of 1787,° first making lands alodial, but which, after all, only stated the effect of the War of Independence in subverting the ancient sovereignty and transferring it to the people in their political capacity — i.e., the State. The revisers again expressed this fact. The Revised Statutes, like the Statute of 1787, saved all rents or services theretofore or thereafter reserved.' This saving clause referred to the former or socage services only. ' In this way the lands of New York, although declared alodial, preserved many features of the socage tenure, a 1 1 R. S. 750, sec. 10 ; cf. 1 R. S. 754, sec. 27. » Merry v. Hallett, 2 Cow. 497 ; Co. on Litt., 19, 20 ; cf. Mayor, etc., New- York V. Mabie, 13 N. Y. 151, 158. ' 1 R. S. 718, sec. 3. This is now embodied in the Constitution of 1894-95, Art. 1. * Goodrich v. Russel, 42 N. Y. 177 ; People v. Fulton Fire Ins. Co. , 25 "Wend. 205, 219. ' 1 R. 8. 718, sec. 1. « 2 J. & v. 68 ; 1 R. L. 880 ; Van Rensselaer v. Smith, 27 Barb. 104, 149 ; supra, pp. 80, 84. ' 1 R. S. 718, sec. 4. « Van Rensselaer c. Smith, 27 Barb. 104, 149. DEFINITION OF ALODIAL LANDS. 99 fact wMcli the revisers emphasize, for in the first article of the first chapter,' they not only preserve the rights and povs^ers of guardian in socage, but they entitle the article "Of the Tenure of Real Property." Now the veords "tenure" and "alodial" are ordinarily antithetical, denot- ing contrasted conceptions." Tenure denotes the specific feudal relation subsisting betvpeen the lord and the tenant.' There v?as ordinarily no tenure where lands were alodial. But this is not always true. The term alodium had been used in England to designate an inheritable feud.' The revisers with great precision explain in the statute itself that by " alodial lands" are meant those which sub- ject only to escheats, vest the entire and absolute property in the owners.' The statute thus invested the land owners with the most extensive proprietary rights known to the jurisprudence and polity of civilized. States. The revisers' conception of alodial property concurs with a subsequent one by a great historical scholar, Professor Freeman, in his work on the Korman Conquest : " It is an estate great or small which the owner does not hold either of the king or of any other lord, but in regard to which he knows no superior but Grod and the law." ' While somewhat rhe- torical for the purposes of concrete law, such definition is both precise and technical. The revisers declared " aU feudal tenures with all their incidents abolished,"' thus repeating the word "all" within a few syllables, as if to render it more emphatic. But rents and services certain are expressly saved as future inci- dents of landed proprietorship, and their coritinuance as- sured by the next clause of the statute.' Now this saving clause was as old as the Statute 12 Car. II., c. 24, which had effected substantially the same things in the year 1660 ;" so that Chancellor Kent's objection — that to declare 'IRS. 718. » Supra, pp. 80, 81. ' Att'y Gen'l Ontario v. Mercer, 8 App. Caaes at p. 73. * Freeman's " Norman Conquest," IV., p. 38, notes ; o. 1, p. 8, mpra, as to New Netherland flefs. » 1 R. S. 718, sec. 3. ' Freeman's " Norman Conquest," I. S8, 63, 64. 'IRS. 718, sec. 3. * Ibid., sec. 4. » Supra, p. 27. 100 ESCHEATS PEESEEVED. socage lands of the nineteenth century alodial was a change without substance' —seems to be not devoid of foundation. The revisers, however, had a reason for the change other than the fact that part of the lands in the State were already alod'ial. They desired to destroy all feudal conceptions of real property, and to invest private owners with all the presumptions in favor of their proprietary interest. This was a most important step in the construction of the Re- vised Statutes, for it destroyed analogies of the common law and made the statute to some extent the key of its own interpretation. Again, alodial lands should be in theory more secure from an exercise of even the right of eminent domain than lands held of the people of the State on the socage tenure, for a tenure ordinarily imports a personal relation in subordination to some superior right. When the political superior became the people the lands were practically alodial, and a land owner here in reality held of himself as long as the socage tenure lasted, or until the Revised Statutes swept away this historical fiction by de- claring all lands alodial," and by abolishing all the incidents of feudal tenures. At a subsequent day the framers of the Constitution of 1846 insisted (notwithstanding the ob- jection of many lawyers that it was unnecessary) upon having a like provision inserted in that instrument again abolishing feudal tenures, but again saving pre-existing rents and services.' Now, strictly feudal or military ten- ures had never existed in New York, such tenures having been prohibited in England prior to the English occupation of 1664.* The Constitution of 1846' therefore simply repeats a provision of the Revised Statutes declaring all lands alo- dial, and this provision appears again in the present Con- stitution." It would have been quite sufficient for the Con- stitutions to have declared aU lands alodial. The revisers preserved another incident of socage tenure. The prerogative of escheats propter defectum sanguinis, which after Independence had belonged to the people, as ' 4 Kent's Com. %. » 1 R. S. 718, sec. 3. ' Const, of 1846, Art. 1, sec. 13 ; Const. 1894-95, Art. 1, sec. 11. * Siu.'pm, pp. 12, 27, 36, 38. » Art. 1, section 13. « Const, of 1894-95. Art. 1, sections 11 and 12. EMINENT DOMAIN. JOl successor to the Crown, is by the Revised Statutes prop^^J J^ declared to be in the people of the State.' By the common: law the king took escheated lands free of all trusts.' The Eevised Statutes changed this rule, making them subject to all incumbrances, charges, rents, and services to which they would have been subject had they descended ; thus the State became a trustee, and its Court of Chancery was empowered to direct the attorney-general to convey them to the persons equitably entitled." The Revised Statutes pre- served to the State forfeitures of lands alienated to aliens, but such forfeitures are referred to by the generic term "escheats," and are noticed again.* 'Escheats premier de- lictum tenentis were preserved in a single case, treason," but are now for life only.' In 1846 the remodellers of the Constitution inserted in that instrument the provision sav- ing escheats to the people of the State in all cases where an alodial proprietor died without heirs,' and this same pro- vision appears in the present Constitution.' The right of eminent domain was unaffected by the Re- vised Statutes. This right is often traced to the declaration of the Revised Statutes that the people possess the original and ultimate property in all the lands of the State,' and it is said that they may therefore resume the ownership and possession of all such property ;'° but such right, no doubt, exists as an attribute of sovereignty and independently of the Revised Statutes and of their constitutional para- phrase in 1846" and 1894." The intimation in Smith v. City of Rochester, that such right is in any way an attri- bute of tenure, is probably a partial statement, and true only in the sense that it is true that all private property is theoretically held by permission of organized governments. " ' 1 R. S. 718, sec. 1. « Burgess v. Wheate, 1 W. Bl. 133 ; 1 Eden, 177. • 1 R. S. 718, sec. 2 ; Johnston «. Spicer, 107 N. Y. 185. * Appendix No. II. » 1 R. S. 384. « Penal Code, sec. 710 ; Code Crim. Pro., sec. 819. ' Const, of 1846, Art. 1, section 11. 8 Const, of 1894-95, Art. 1, section 10. 9 1 R. S. 718, sec. 1. '» Smith V. City of Rochester, 93 N. Y. 463, 477. " Art. 1, sec. 11. " Art. 1, sec. 10. " People v. Trinity Church, 33 N.Y. 44. 102 DISABILITY OF ALIENS PEESEKTED. The major limitations on the doctrine of eminent domain are still found in the common law relating to the socage tenure. Notwithstanding the abolition of the socage tenure, the revisers did not see fit to create a new body of curators, or guardians, of lands falling to infant proprietors. They retained the well-known rights, powers, and duties of a guardian in socage ;' but they changed the former rule, that the guardianship shall belong in no case to the next of kin to whom the inheritance could by any possibility descend. Lord Chancellor Macclesfield had long before disapproved of the old rule. It was founded on a very different con- dition of society, and thus it was unfitted for a kindlier and better age. This retention of the rights, powers, and duties of guardians in socage of alodial lands is curious in some aspects, but the revisers made no change for the love of change. They even sacrificed consistency to utility, and thus their work has been retained intact in all subsequent revisions or proposed codifications. The revisers retained, perhaps for reasons of State, the old disabilities of aliens to hold lands," although the legal reasons for the disabilities were to be found rather in the old common law' than in the polity of a sparsely settled State. This deference to old institutions was not because the revisers had any doubt of the extent of the power of the Legislature to alter the common law, for it was ex- pressly given.* 'Not had they any hesitancy in going to the root of evils. In fact, their proposals to the legislature announced more radical changes in the common law than any codification or revision has ever before or since pro- posed ; but theirs were very wise changes. Notwithstanding the extensive changes made in the former law of land by the Revised Statutes, the terminology there employed is for the most part that known to the common law. The language of the statutes, even where it deviates from that of ancient statutes, is precisely such as we might expect to be used by persons trained in the sci- ence of the common law ; consequently the key to the con- " 1 R. S. 718, section 5. « 1 R. S. 719. ' Appendix No. II. this volume. « Const, of 1822-23, Art. 7, sec. 13. COLONIAL STATUTES EEPEALED. 103 struction of the Revised Statutes can be found only in the common law, unless the statutes expressly direct that the construction shall be independent of it. Occasionally, as stated before, a technical term is used in a new sense or in one more restricted or extended than formerly, but the re- visers in such cases usually mark the deviation by a defini- tion of the term. Thus the scheme of the statute is care- fully worked out by the revisers, and creates no difficulty in practice to those familiar with the " new learning ;" but in reading the statute the statutory definitions must be first absolutely acquired, or the key to the construction may be wholly lost.' At times the deviation from the old meaning of a common-law term is very slight, yet important to ob- serve.'' Thus "chattels real" and "chattel interests" are contradistinguished.' Prior to the Revised Statutes an estate for years was indifferently either a " chattel real" or a " chattel interest.' ' So a " fee simple" and a " fee simple absolute" formerly denoted the same thing.' The revisers apparently have made it otherwise.' The portion of the Revised Statutes which relates to lands, and is to some extent discussed in these pages, was passed December 10th, 1828, and took effect on January 1st, 1830." By the law of December 10th, 1828, known as the " General Repealing Act," it was provided that " no statute passed by the government of the late colony of New York" should be " considered as a law of this State." ' This was the first formal repeal of the acts of the Provincial Assem- bly.' Its legal effect has not been fully discussed. The repealing clause contained a singular inaccuracy in respect of the title of the former government." So the word " stat- ute" in this clause but imperfectly describes both acts of ' Griffin V. Shepard, 124 N. Y. 70. « e. g. Cruikshank ®. Home for the Friendless, 113 N. Y. 337, 353, 854. » 1 R. S. 733, section 5. « Jackson v. Van Zandt, 13 Johns. 169, 177 ; Lott v. "WykofE, 1 Barb. 575 ; affirmed, 3 Comst. 355. » 1 R. S. 733, section 3. « C. 20, Laws of 1828-29, p. 19. ' C. 21, Laws of 1828-29, section 4. ' Pew of these acts made any essential changes in the socage tenure. The reason has been considered ; supra, p. 58. 9 It was entitled in all official documents " The Province of New York." 104 COMMON LAW OF THE STATE. Assembly and ordinances of the Crown and its representa- tives, which were equally sources of law in the provincial epoch. If the present law of real estate is not to be found in the Revised Statutes or in the amendatory and supplementary acts since passed, it depends by constitutional limitation on the common law of the State.' A comparison of the vari- ous constitutional provisions determining the fundamental law of the State, including the common law, discloses slight variations of phrase to meet the successive changes in the condition or form of the law. The Constitution of 1777 adopts expressly (but with a proviso") such parts of the common and the statute law of England, and of the statute law of the "colony of New York," as together did form the law of the said colony on April 19th, 1775. The Con- stitution of 1822-23 omits any reference to the statute laws of England, such laws having been meanwhile repealed and their equivalents re-enacted in the year 1788.° It is also more general in its proviso, or in that clause which abro- gates such parts of the former common law as are repug- nant to the republican constitution. The constitution of 1846 omits all reference to the acts of the Legislature of the former province or " colony of New York," such acts having been repealed in the year 1828.' The present Constitution is in the same language as that of 1846. It, however, omits the part of the section which contemplated codification of the entire body of the fundamental law. This fourfold establishment of the former common law of the province of New York as the fundamental law of the State of course involves that part of the common law of England which had been recognized as suitable to the province of New York." By a singular necessity of any jurisprudence derived from a parent State, the courts of the present day are stUl determining what parts of such English common law were suited to the social and the ' Const, of 1894-95, Art. 1, sec. 16 ; Const, of 1846, Art. 1, section 17 ; Const, of 1832-23, Art. 7, section 13 ; Const, of 1777, section 35. ' The proviso in substance excepts tliose parts of the common law which re- lated to the State Church of England or to the King in his political capacity. ' Supra, p. 77. * Supra, p. 103. ' Supra, p. 23. SUPEEMACT OF THE JUDICIAEY. 105 political conditions of the province of New York, and are therefore made part of the law of to-day. ' The ingenious inquirer must often find some food for reflection in those con- stitutional provisions which thus translate the common law of England with fundamental reservations into our law of to-day. The uncertainties on this head were intended to be put an end to by the provisions of the Constitution of 1846 relative to a general codification." It is diflicult to fix the responsibility for the failure to obey a constitutional mandate in force for nearly fifty years. ^he uncertainty of the term " common law of England," as used in New York, has been before referred to ;' there was, however, less uncertainty before Independence was achieved. It ordinarily meant the non-statute law of Eng- land,* and as such non-statute law, contradistinguished from the statute law of England, it was, with parts of the statute law of England, made the fundamental and common law of the State by the Constitution of 1777." The old em- barrassment of the reservation, that such common law must be suited to transatlantic conditions,' was thus injected into the present century. This reservation left much to the colonial judiciary that ordinarily belongs to legislators. American society was thus fitted for the extraordinary functions ultimately committed to the judiciary in this country in respect of determining the constitutionality of statute law. They had previously passed on the relevancy of the laws of England to the colonies, and on the validity of the laws of colonial legislatures as judged by the ration- ale of the Constitution of England. It was no great stretch to intrust them with the power of judging a statute of the republican era to be constitutional or unconstitutional when compared with the standard of a written compact from which all governmental authority is now presumed to flow.' The present common law of the State is of course deter- mined primarily (1) in our own reports, which are thought ' Meyers ®. Gemmel, 10 Barb. 541. » Const, of 1846, Art. 1, section 17. 5 Siwpra, p. 47, note 3. * Supra,, p. 55. ' Const, of 1777, sec. 35. * Supra, p. 23. ' The only exception to this presumption is in Connecticut, where the con- stitution is treated as a limitation and not as a grant of power. 106 SOUEOES OF THE COMMON LAW. now to have embraced most points covered by the non- statute law. If the point is not there adjudicated, then the common law may be found (2) in some usage or in de- cisions of the courts of the province of New York. This source of law ordinarily receives little attention, although it may in some cases be controlling.' (3) If the common law is not found in either of these sources, it will then have to be found in the evidences of the non-statute law of Eng- land' existing prior to the battle of Concord and Lexing- ton, April 19th, 1775, the great day when the whole legis- lative machinery of England, direct and indirect, ceased to be controlling here. It is only necessary to advert further to the last source of our common law and to remind ourselves that when thus found it must be again subjected to the great ultimate test : Is it (or was it, for the question or test in point of time is not of to-day) fitted for transatlantic conditions and not repugnant to the Constitution of the State? This test, always reluctantly undertaken by the Judges, leads often- times to amusing indirection. A Judge, instead of pro- nouncing clearly the formula, " I find this law unfitted for adoption," professes to have ascertained that the colonists did not carry or bring the law with them,' as if any colonist ever carried or brought a law. Judicial metaphors are too inexact for scientific purposes, although Judicial fictions are well known to have ameliorated harsh laws of ruder political societies.' The Supreme Court of this State has commented on this qualified adoption of the common law of England already indicated in a way weU worthy of attention ; pro- nouncing it an adoption of essential principles, rather than of particular rules or institutes of the law of England." ' The reason it receives little attention is due to its inaccessible form, or to the presumption that it precisely accords with the law of England. This presumption may easily go too far. » Williams «. 'Williams, 8 N. Y. 525, 541. ' E.g., Meyers®. Gemmel, 10 Barb. 541 ; De Buyter v. Trustees of St. Peter's Church, 3 Barb. Ch. 119. * Maine's "Ancient Law," c. II. ' Morgan v. King, 30 Barb. 14 ; reversed, 35 N. Y. 454, independently of the definition in the text. LAW OF EEAL PEOPEETT. 107 But such, definition is, perhaps, too abstract for the practical purposes of the present law of real property in New York. The working rule, then, is to be found in the simple state- ment, that the law of real property, when not expressly laid down by the Revised Statutes and not found in the cases adjudged in New York,' is still to be found in the original sources of the common law." ' This includes tlie federal courts, for they are in one sense territorial courts. " Williams v. Williams, 8 N. Y. 525, 541 ; Bogardus v. Trinity Church, 4 Pai. 178, 198. CHAPTER VI. LEGAL ESTATES UNDEK THE KEVISED STATUTES. When the revisers prepared the article relating to the " Creation and Division of Estates," the English judicial system, with its separate courts of law and equity, was in full force in New York, and so had been since the year 1683.' The legal owner of lands was that one whom the courts of law and the State recognized as such. Equitable owners and estates were taken cognizance of only in the courts of equity. The legal owner was the permanent representative of the estate, holding the title thereto. He was recognized as the responsible owner of the land in all its relations to the State and its subordinates, although some one else might in equity be entitled to the benefits, income, and profits of the estate. In treating of the nature, quality, and quantity of estates in real property, the revisers, in the natural order of things, observed the distinction denoted, and first dealt with the more universal ownership, or that recognized by the courts of law.' ' Supra, p. 51 ; infra, c. VII. The judicial establishment of New York prior to the year 1846 owed its legal jurisdictions primarily to two acts : " An act to settle courts of justice," passed Nov. 1, 1683, and " An act for estab- lishing courts of judicature," etc., passed in 1691 (Appendix 2, R. L. of 1813 ; Bradford's N. Y. Laws of 1694, pp. 2 and 64). The latter expired in 1699, and the common law courts stood then on ordinances of the Crown governor until " Independence" was achieved. (Notes 2 and 24, Qrolier Bradford's N. Y. Laws of 1694. Daly's " Judicial Organization of the State," Pref. to 1 E. D. Smith's Reports.) For legal jurisdictions subsequent to " Independence," see N. Y. Civil List for 1867 ; Graham's " Treatise on the Organization and Juris- diction of Courts in New York ;" Street's " Council of Revision of the State of New York." ' Legal and equitable jurisdictions combined were first vested in the Supreme Court pursuant to Art. VI., Const, of 1846. Equitable interests, as contra- distinguished from legal interests, were then too firmly fastened in the law of property to be greatly affected by the fusion of legal and equitable jurisdic- tions. DEFINITION OF "ESTATE." 109 The term "estate," as used by the revisers, is defined only by the common law ; at least it is not defined in the Kevised Statutes. Indeed, the entire Article relating to the " Creation and Division of Estates" ' would be incom- prehensible without a resort to the definitions and the terminology of the common law then in force in this State. By the common law an estate in lands was simply that qualified dominion which was permitted to exist over lands ;" it existed by force of the common law, by statute, or by custom. In England estates of private persons are deriva- tive, being derived de novo out of an existing estate. No new estate can be made except by act of Parliament. In the province of New York estates were also derivative, being deduced either from the original estate of the Duke of York,' or after the merger of his private estate in the Crown,* from new grants or patents from the Crown, to be held by the common socage tenure.' The right of the Crown to create these estates without an act of Parliament has been fully considered." During the War of Indepen- dence, a few of the estates thus derived from the Crown were to a limited extent formally confiscated ;' the residue, if created before October 14th, 1775, were permitted to con- tinue, and by force of the first constitution of the State were recognized as existing estates, paramount to every intent.' The confiscated lands were sold as forfeited estates by Com- missioners of Forfeitures." The ungranted Crown lands vested in the people of the State in their political capacity on the subversion of the monarchy :'° the State granted these under the great seal, and by statute estates so ema- nating were alodial." Thus there were prior to the Revised ' Art. I., Tit. II., Ch. I., Part I., R. S. ' Blackstone defines "Estate" In lands "as such interest as the tenant hath therein." 2 Bla. Com. 103. He does not apply the term "estate" to personal property. 2 Bla. Com. 389. ' See Appendix No. I., infra. * Supra, p. 19. ' Supra, pp. 10, 16. ' Supra, pp. 10, 11. ' An act passed Oct. 23, 1779 ; 1 J. & V. 39. " Section xxxvi.. Const, of 1777 ; of. 5th Amendment, U. S. Constitution. « IJ. & V. 89, 44 ; supra, p. 75. '» IJ. & V. 44 ; People v. Trinity Church, 22 N. Y. 44, 46. " Supra, p. 80. 110 ALL JjA^DS Statutes the old estates derived from the Crown and the new estates derived from the State of New York. The Kevised Statutes finally declared all lands alodial,' but in so doing it subjected them not only to escheats," which grew out of the common law, but also to a declaration of governmental relations to lands much more rigid and absolute' than the legal theory that preceded it, pursuant to which the people of the State in their political capacity had continued to be the lord paramount of the socage lands by reason of their successorship to the rights of the Crown.* After the commutation of the quit-rents' there was, how- ever, no legal need of a continuance of socage tenure. Why this merely political seigniory of the State, limited as it was by the rules and principles of the jurisprudence adopted by the State, should have been made so absolute in terms as it is" by these revisers, is difficult to perceive. " Estates" in lands were recognized by the revisers as ex- isting institutions, and they proceeded simply to remodel the laws relating to estates to be thereafter derived out of these. The revisers did not attempt to define " estates" or " lands'" anew. These were terms of science, and nothing was to be gained by revising such fundamental conceptions of property. So they adhered to the established terms, denoting the quantity and quality of the interest the legal owner might have in immovable property' — e.g., " estates of inheritance,'" "for life," "for years," "at will," "by sufferance,'"" and the like. Yet they made some changes In the common law terminology. Thus the force of the ' 1 R. S. 718, sec. 3, ' 1 R. S. 718, sec. 3 ; supj-a, pp. 81, 84. ' 1 R. S. 718, sec. 1. * IJ. & V. 44 ; People v. Trinity Church, 22 N. Y. 44 ; Jackson o. Hart, 12 Johns. 77 ; Jackson v. Ingraham, 4 Johns. 163. ' Supra, p. 85. ' " The people of this State in their right of sovereignty, are deemed to pos- sess the original and ultimate property in and to all lands within the juris- diction of the State.'- 1 R. S. 718, sec. 1. ' Co. on Litt. 4a, 6a. " The qiiantum, of estates of freehold remains the same now as in the days of Littleton. ' 1 R. S. 722, sec. 3 ; a fee simple, the largest estate known to the l&v, . '« 1 R. S. 723, 723. QUANTITY OF ".ESTATES." Ill term "remainder" was so extended as to include future uses ;' it wlioUy lost its common law significance, and ac- quired quite a new meaning.' This kind of statutory in- version, while confusing at first, is most skilfully worked out by the revisers. Estates in the lands of New York existing prior to the Eevised Statutes were then, as already remarked, derived from Crown grants and confirmations, or else from grants made under the great seal of the State or pursuant to the for- feited estates acts. The former were all held by a modified socage tenure of the political successor to the Crown. The lands derived from the State were alodial, but the quantity and quality of estates in them were by the common law. When the revisers made all lands alodial, they preserved the notion of " estates" by a series of well-drawn sections, which will be now further considered, for these sections are the bridge which serves to connect the old law with the ex- isting law of real property. An estate of inheritance was to continue to be called a fee simple, notwithstanding tenures were abolished." Es- tates of inheritance and for life in alodial lands were to continue to be called "estates of freehold;" estates for years, to be " chattels real ;" while estates at will or by sufferance were to be " chattel interests. " ' Thus a positive and known (or quantitative) value was given to future estates, properties, or interests in alodial lands. The lands themselves were alodial," but the property or estates in them, as well as their quantity and quality, were of the common law, unless that law, or some particular institute of it, was clearly inconsistent with existing institutions or abrogated by some other part of the Revised Statutes. It is unnecessary, therefore, to follow farther the nature of these various estates in question, or their quantity and ' 1 R. S. 723, sec. 11. ' Hawley v. James, 5 Pai. 318, 466 ; Pond v. Bergh, 10 Pai. 140, 147, 156 ; Matter of Dodge, 105 N. Y. 585. » 1 R. S. 732, sec. 2. * Ibid., sec. 5. ' To be " seised" of an alodial estate now means to own it. Matter of Dodge, 105 N. T. 585, 591. ' 112 FUTURE ESTATES. quality. They are too familiar to justify any mere repeti- tion. The revisers' difficulty consisted in dealing with the laws regulating the creation of "future estates," or "estates" not in possession. Their adoption of the common law notion of a "fee" necessarily involved their accepting the right of the possessor of the fee to parcel out his estate beyond his life, and for periods of longer or shorter dura- tion, consistently with cognate rules of law. The admis- sion of this right by the revisers involved a revision of the common law regulating perpetuities, for the laws against perpetuities were independent of the statute law. WhUe in theory a " fee" then comprised all powers and dominion future and present over land, yet in point of fact it had by the common law come to mean simply inheritable property. The ability of any tenant in fee simple to suspend by some contingent limitation, or by some conveyance in trust, his successor's power of alienating land had been greatly abridged during the historic struggle over perpetuities. The great question with the revisers was, whether the com- mon law rules regulating this right of suspending the pow- er of alienation' were on the best possible foundation. The inheritable quality of landed property they did not attempt to disturb,' while the general power of disposing of it by last will was admitted.' The common law right of any owner of a fee to suspend the power of alienation was, how- ever, regulated by a new rule, now of great importance.' Conforming to the general notions of the great English commentators, the revisers divided " estates in lands" with reference to present or future dominion over them into "estates in possession" and "estates in expectancy."' These last embraced all estates where the ultimate or other owner's actual dominion over them was postponed. Such interests were called " future estates" ° and " reversions." ^ Future estates included all estates to take effect in futuro except reversions. " Reversions" kept its exact common ' Cf. discussion in Thelluson t. Woodford, 4 Ves. 237 ; 11 Ves. 113. ' 1 R. 8. 750. » a R S. 56. • Infra, p. 114. « 2 Bla. Com. 163, chap, xi.; 1 R. S. 732, 733, sections 7, 8, and 9. • 1 R. S. 733, sections 9, 10. ' 1 R. S. 733, sec. 13. KBFOKMS. 113 law meaning.' " Future estates," therefore, comprised all quondam " secondary," " springing" and " shifting uses," "executory devises," and "remainders." The rules re- lating to the taking effect of these "future estates" were, however, based on new conceptions. Their validity no longer depended on the common law rules relating to the devolution of title to lands in England. Those rules had grown either out of the law of feuds, or else out of judicial attempts to prevent perpetuities. The central idea of the revisers was to apply approxi- mately the laws relating to personal property, to real or immovable property, and then to shorten the common law period during which the power of alienating lands might be suspended. They therefore abrogated certain common law rules and disabilities concerning the creation of estates, because such rules had grown out of the law originally re- lating to feuds. They tolerated the creation of any " future estate" which did not contravene their new rule against perpetuities, but subject to the limitations prescribed by the Revised Statutes. A fee might now be mounted on a fee,' as freely by deed as by a will ; a freehold estate might be created to commence at a future day ; an estate for life might be created to commence at a future day, and it might be created in a term of years and a remainder limited there- on ; a remainder of a freehold or chattel real, either con- tingent or vested, might be created expectant on the deter- mination of a term of years,' provided such remainder vest in interest within two lives in being.' At common law real estate might be rendered inalienable for a life or lives in being at the death of the testator, and for an absolute term of twenty-one years thereafter, with a possibly slight extension for the period of gestation. ' The revisers limited the lives by allowing two only instead of an indefinite number. The Revised Statutes are most ex- > Co. on Litt. 143J ; 1 Preston's Estates, 133 ; 1 R. S. 723, sec. 13. « 1 R. S. 734, sec. 2.4 ; Mott ». Ackerman, 93 N.Y. 539, 549. 3 1 R. S. 724, sec. 34. " lUa., sec. 20. 5 Cadell e. Palmer, Tudor's Leading Cases on Real Property and Conv., note, p. 859 ; s.c. 1 Clark & Finnelly, 873 ; 1 Jarman's PoweU on Devises, 888, note 1 ; Coster v. Lorillard, 14 Wend. 365, 295. 114 NEW EULE AGAIN&r PERPETUITIES. plicit on this point : " The absolute power of alienation, shall not be suspended by any limitation or condition what- ever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate. . . ." ' Lives alone thus became the standard of any valid limitation suspending the power of alienation." The revisers intended also to abolish the absolute term and to allow in its stead an actual minority." They, however, permitted a remainder in fee, to take effect upon the de- termination of two lives in being at the time of the creation of the estate, to be limited to a person not in being at the testator's death, and a further contingent remainder in favor of a person not in being, to take effect in the event that the person to whom the remainder was first limited die under the age of twenty-one years.* At common law several fees might be limited in the alter- native by way of remainder upon the same particular estate upon such contingencies that not more than one of them could by possibility happen.' Again, at common law a limitation by deed to an unborn person and then by way of purchase to the issue of such unborn person was void as to the issue." If contained in a will it might be construed as a limitation in tail.' So the limitation of a remainder to a corporation not in esse or to the right heirs as purchasers of a person not in esse was void.' By the Revised Statutes successive life estates could be limited only to persons in being at the creation thereof ; > 1 R. S. 733, sec. 15 ; infra, p. 149. ' Crulkshank v. Home for the Friendless, 113 N. Y., at p. 351. The lead- ing cases bearing on the statutory standard are cited in the New York works on Real Property, and in Chaplin's " Suspension of the Power of Alienation," New York, 1891. ' 1 R. S. 723, sections 14, 15, and 16 ; Fowler v. Depau, 26 Barb. 224, 234. < 1 R. S. 733, sections 15, 16 ; 1 R. S. 726, sec. 37 ; Manice s. Manice, 43 N. Y. 303, 374. ' Loddington v. Kime, 1 Salk. 234, 1 Ld. Raym. 203, and see Fearne Cont. Rem. 373. « Peame Cont. Rem. 502 ; Brudenell v. Elwes, 1 East. 452, 453 ; Hay ». Earl of Coventry, 3 T. R. 83, 86. ' Mr. Butler's note on Feame Conting. Rem. 204. 8 Cholmley's Case, 2 Rep. 50, 51 ; 2 Bla. Com. 170. ; VALID ACCUMULATIONS. 115 and where a remainder is limited on more than two suc- cessive estates for life, all the life estates subsequent to those of the two persons first entitled thereto are void, and upon the death of those persons the remainder vests as if no other life estate had been attempted to be created.' But this section accelerating remainders referred only to vested and not to contingent remainders ; when, therefore, the remainder is limited to take efEect upon a contingency which has not happened at the termination of the life estate of the longest liver of the two lawful life tenants, such remainder is void." In harmony with the new rule against perpetuities, the revisers permit the rents and profits of real estate to accu- mulate thereafter for the benefit of minors only. They limit the period during which such accumulations may take place, so that they shall commence withia the time fixed by the statute for the vesting of future estates, and terminate at the expiration of the beneficiaries' minority. ° Thus' long accumulations, such as those attempted by Mr. Thelluson in England,* could not be repeated here. With a design to remedy defects in the older statutes of the State, as well as to strip the common law of non-essen- tials, the revisers remedied the hardships of the early acts turning estates tail into estates in fee simple,' by which certain remainders were cut off. Now when a remainder in fee is limited upon an estate which would have been adjudged a " fee tail at common law," such remainder is valid as a contingent limitation upon a fee, and vests in possession on the death of the first taker without issue living at the time of such death.' It will be observed that ' 1 R. S. 723, sec. 17. » Purdy V. Hayt, 92 N. Y. 446. 3 1 R. S. 726, sections 37, 38 ; Harris «. Clark, 7 N. Y. 242 ; Pray v. Hege- man, 92 N. Y. 508. * Thelluson v. Woodford, 4 Ves. 227 ; 11 Ves. 112. Long accumulations were in England restrained thereafter by Statutes 39 and 40 Geo. III. , c. 98. * Supra, pp. 73, 79. * 1 R. S. 782, sections 3, 4 ; cf . Mr. Harison's argument in Anderson v. Jack- son, 16 Johns. 382, 392 ; Buel «. Southwick, 70 N. Y. 581 ; Nellis i). Nellis, 99 N. Y. 505 ; Van Rensselaer v. Poucher, 5 Denio, 35 ; Vanderheyden v. Crandall, 2 Denio, 9. 116 LEASEHOLD ESTATES. while there is a provision in the Revised Statutes against the creation of an estate tail, the creation of a fee tail re- mains effective for some purposes, or as a medium of trans- mitting a use or title to the estate." The statute operates on the legal effect of the successful creation of such an es- tate. Unless the fee tail is created, it obviously cannot be converted into a fee simple." Fees tail are, therefore, only- abolished as estates in alodial lands by their conversion into estates in "fee simple," and if no remainder is lim- ited thereon into estates in " fee simple absolute." The Eevised Statutes do not declare tenures abolished, but "feudal tenures'''' only.' As long as lands are let to lease a tenure or holding of some kind, ex necessitate rei, ex- ists, although the lands themselves are alodial.* The term "tenure," as often repeated, strictly denotes, as a term of science, a specific feudal relation subsisting between the lord and the tenant." This relation it is which the stat- ute,' making lands alodial, intended to sever ; but this feudal relation never was created by terms of years, which as estates grew up subsequent to the feudal settlements, and pushed themselves into recognition as legal estates only by force of the statute.' Leasehold estates are the estates designated by the revisers " estates for years," " estates at will, " and " by sufferance ; " they always existed in New York, being firmly established as estates in the law of England prior to the English occu- pation in 1664. They are among the estates in lands spe- cially enumerated and recognized as continuing by the Re- vised Statutes.' The old leasehold estates in socage lands received much fine illustration in the early law reports of the State of New York. Leasehold estates might, prior to the Statute of Frauds,' ' Nellis V. Nellis, 99 N. T. 505, 511 ; 1 R. S. 732, sec. 3. " Lott B. Wykofl, 2 N. Y. 355. 8 1 R. S. 718, sec. 3. * Saunders ®. Hanes, 44 N. Y. 358, 361. ' Att'y-Gen'l of Ontario v. Mercer, 8 L. R. App. Cas. 767, 773. « Supra, p. 80, now in Const, of 1846, Art. I., sec. 13 ; Const, of 1894-95, Art. I., sec. 11. ' 21 Hen. VIII., c. 15. « Supra, p. 110. 9 29 Car. II., c. 3. STATUTE OF FEATJDS. 117 have been made by parol without writing, but after that statute an estate for years created by parol, by livery and seisin only, if for a period longer than three years, had the force of an estate at will only. This statute addressed to England had strictly no operation in New York, not mentioning the province, being in derogation of the com- mon law and passed subsequent to the establishment of the then existing laws of England in this province.' But, as before stated, this fact makes it by no means conclusive that this statute was not acted on in the province," the colonial judiciary frequently assuming the right in civil actions to extend some of the acts of Parliament, although they were passed subsequent to the first establishment of the laws of England in the province.' When Messrs. Jones and Varick came to remodel those acts of Parliament which were acted on in the province of New York and adopted by the Constitution of 1777,' they certainly included the Statute of Frauds, 29 Car. 11." It has been already stated that prior to the English Statute of Frauds the province of New York had a like statute of its own, ' the fate of which is prob- lematical after 1691.' The Revised Statutes provided that " no estate or interest in lands, other than leases for a term not exceeding one year," should thereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, sur- rendering, or declaring the same. ° It is_ therefore obvious that were it not for the express abolition of livery of seisin,* an estate for one year would still be created in lands as at common law. The Revised Statutes embodied many provisions concern- 1 Clark's Colonial Law, 16 ; 1 Bla. Com. 108, 109 ; Pownall's Colonies, 103 ; Morris v. Vanderen, 1 Dallas, 64, 67. ' Supra, pp. 16, 78. ' Sharswood's Law Lectures, 194. * Supra, pp. 77, 78. = 3 J. & V. 91, sec. ix.; 1 K. & R. 79 ; 1 R. L. 75, 78. s Duke's Laws of 1664, Tit. " Conveyances ;" supra, pp. 16, 78. ' Supra, pp. 21, 58. « 3 R. S. 134, sec. 6. « 1 R. S. 738, sec. 136. 118 PERPETUAL EENTS. ing estates for years and at will, as well as rules relating to the rights and duties of landlords and tenants, ' which may- still be regarded as the basis of existing law. Several of these provisions were taken from earlier statutes both Eng- lish" and American.' In early days in New York ' ' rent' ' was not always the sign of estates " for years," " at wiU," or " by sufferance. " The reservation of a perpetual rent on an estate in fee was very common both prior' and subsequent to independence of the Crown. It marks a singular departure from the law of England that such conveyances in fee were here frequently termed "leases," "durable leases," or "leases in fee," by both the courts and the Legislature." That such a designation is a misnomer in the law as then established there can be no question.' In England It is undoubted that after the Statute of Quia Mnptores no subject could reserve a rent as incident to tenure only.' But where such a con- veyance contained a power to distrain or a right to re-enter for the non-payment of the rent, it might be good as a rent charge." It is, however, apprehended that the Statute of Quia Mnptores was thought by the lawyers of the prov- ince of New York to have no application within the manors of New York, and that these so-called "leases" between private persons were originally in New York fee-farm grants' of lands lying wholly within the manors of New York ; and that such grants were deemed valid even without a rent charge, because of the tenure and reversion of the manor." Without the manors such grants in fee could formerly have been valid between private persons only as a rent charge." ' 1 E. S. 744-748. ' 4 Geo. II., c. 28 ; 11 Geo. II., c. 19. ' 3 J. & V. 233 ; 1 K. & R. 134 ; 1 R. L. 434. ♦ Jackson ex dem. Van Rensselaer v. Hogeboom, 11 Johns. 163. ' Willard's "Real Estate and Conveyancing," 207 ; Jackson ex dem. ■». Hoge- boom, 11 Johns. 163. « Supra, p. 45. ' Challis, 3. * Co. on Litt. 144a, note 235 of Mr. Hargrave ; Van Rensselaer ■». Hayes, 19 N. Y. 68 ; supra, pp. 41, 45. 9 Supra, pp. 39, 40. " Supra, p. 29, note 8. " Van Rensselaer v. Hayes, 19 N. Y. 68 ; et supra, note 8. LEASES OP AGEIOULTUEAL LANDS. 119 Prior to the Eevised Statutes a tenant in fee simple might make leases of any duration, or reserve. a rent on a grant in fee/ and this is believed to be still the law of alodial lands, except in so tat as it is abrogated by a provision of the Con- stitution of 1846, adopted in viev/ of the old agrarian diffi- culties growing out of the custom of perpetual rents in the manors and leas6s of farming lands for long terms of years. The section in c[uestion provides that thereafter " No lease or grant of agricultural land, for a longer period than twelve years, in which ^hall be reserved any rent or service of any kind, shall be valid." " The same provision is contained in the existing constitution.' It does not affect leases of non- agricultural lands, and leases of such lands for long terms of years are common. But they are much affected in prac- tice by the taxing act of 1846/ which directs the assessors of each town to ascertain the amount of rents reserved in leases in fee, or for lives, or for a term of years exceeding twenty-one, and to assess the same against the persons entitled to such rents. Thus lands leased for a period longer than twenty-one years are twice taxed in law.' Leases of non- agricultural lands for twenty-one years, with right of renewals, are very frequent in practice. In some cases a covenant is inserted fixing a net rent, free of all taxes forever, and in such cases the lease or demise may well be beyond twenty-one years. Longer leases are not infrequent. But since the " Act Concerning Tenures,' " any conveyance of lands in fee, even though reserving rent, operates as a deed of assignment, and not as a lease, and leaves neither any reversion nor possibility of reverter in the grantor.' So, since the " Act Concerning Tenures" and the Revised Statutes the courts have been compelled to give careful attention to the distinction between conditions implied by ' Van Rensselaer v. Dennison, 35 N. Y. 393, 400. ' Const, of 1846, Art. I., sec. 14. ' Const, of 1894-95, Art. I., sec. 13. * C. 327, Laws of 1846, as amended by c. 809, Laws of 1873. " Van Bensselaer v. Dennison, 8 Barb. 33. 8 3 J. & V. 67 ; 1 K. & R. 64 ; 3 R. L. 70 ; supra, p. 80. ' Van Rensselaer «. Read, 36 N. T. 558 ; Van Rensselaer v. Dennison, 35 N. Y. 393 ; Bradt v. Church, 110 N. Y. 537. 120 EESEEVATIONS AND CONDITIONS. the law of tenures and those created, by the act of the par- ties and expressed in the conveyance. Any such condition expressed in the conveyance, if it do not contravene the Eevised Statutes against perpetuities, or some settled prin- ciple of the law of the land or public policy, is now valid, and a right of entry so reserved is also valid.' Such cove- nants entered into by the grantee of the lands, in behalf of himself, his heirs, and assigns are covenants real, which run with the land and are binding upon the heirs and assigns of the covenantor successively. Rents thus reserved are de- visable, assignable, and descendible •' they preserve many of the qualities of rents issuing out of lands formerly held by the free and common socage tenure. It will be recalled that the Revised Statutes, though abol- ishing tenures, carefully preserved any rents or services certain, created, or reserved in existing leases, or which thereafter might be created.' This accorded with the pol- icy of all the pre-existing acts on the subject of alodial lands,* as well as with the constitutional ratification of the old Crown grants, ' and the federal limitations against the impairment of contracts by any act of the State.' At the present day remedies for the recovery of lands and the collection of rent due on demises are wholly inde- pendent of the common law. Distresses for rent were taken away in the year 1846,' and the entire machinery for the collection of rent and the recovery of possession of lands in the State became largely statutory.' Its further considera- tion belongs to a treatise on practice or to a general work on the law of real property. The revisers do not expressly enumerate estates of mort- gagees among those legal estates which they recognize as ' Van Rensselaer v. Dennison, 35 N. Y. 393, 400. s Van Rensselaer v. Read, 36 N. Y. 558, 564, 565. » 1 R. S. 718, sec. 4 ; mpra, p. 98. < 2 J. & V. 67 ; 1 K. & R. 64 ; 2 R. L. 70. ' Sec. xxxvi., Const, of 1777. « XJ. S. Const., Art. t, sec. 10. ' Chap. 371, Laws of 1846. « 3 R. S. 348, sec. 34 ; Van Rensselaer v. Snyder, 13 N. Y. 299 ; Conkey o. Hart, 14 N. Y. 33 ; Bradt v. Church, 110 N. Y. 537 ; Martin v. Rector, 118 N. Y. 476. MORTGAGES. 121 continuing in lands after the Eevised Statutes.' Such estates are therefore excluded. The revisers treat the in- terest of the mortgagee as a simple security," in conformity with an early American departure from the Anglican doc- trine. In the State of New York the mortgagor was soon recognized even by courts of law as the legal owner of the fee.' In England the mortgagee took the legal title or a fee upon condition, while the mortgagor reserved usually only a permissive user of the estate until default, when his inter- est became a mere equity or right of redemption, recognized and enforceable in equity only.* Yet formerly even in New York the mortgagor in possession was treated as a tenant at wiU of the mortgagee, who must have given a six months' notice to the mortgagor before bringing an action of ejectment to recover possession of the premises.' The Revised Statutes remedied the inconsistency and took away the mortgagee's right to bring an ejectment for the recovery of the possession of the mortgaged premises.' The revisers also made general a very early law of New York requiring deeds with a clause of defeasance to be registered as mort- gages.' Thereafter the remedies of a mortgagee were clearly referable to the debt, or to the power of sale usually in- serted in mortgages. He had no estate in the lands, and with or without the insertion of this power in his mortgage, his rights were best enforceable by a proper decree of fore- closure and sale by a court possessing equitable jurisdic- tion," although other remedies are still available, and the action of foreclosure and sale is not indispensable, for the ' 1 R. S. 722, sec. 1. '^ 1 R. S. 756, sec. 3 ; cf. this treatment with the section of the Article on Uses and Trusts, which declares every interest in lands a legal right. 1 R. S. 727, sec. 45. ' Waters v. Stewart, 1 Caine's Cas. 47 ; Jackson v. Willard, 4 Johns. 41 ; Hitchcock V. Harrington, 6 Johns. 390 ; Runyan v. Mersereau, Jr., 11 Johns. 534 ; supra, p. 88. * See the_history of English mortgages, ' ' Coote on Mortgages, ' ' Book I. and Book III. " ' Jackson ex dem. «. Laughhead, 2 Johns. 75 ; Jackson ex dem. v. Dubois, 4 Johns. 216 ; Jackson ex dem. ii. Hopkins, 18 Johns. 487. « 2 R. S. 312, sec. 57. ' 1 K. & R. 481, sec. 3 ; 1 R. L. 872, sec. 3 ; 1 R. S. 756, sec. 3. ' Wiltsie on Mortgage Foreclosures, 9. 122 DOWEE. sale may be pursuant to the power alone, without the court's aid ; but in practice a sale under the power of sale is rarely- attempted. Of common law life estates the Revised Statutes specifi- cally retained " estates in dower." ' For over two hun- dred and ten years the widow's estate in " dower" has ex- isted in New York. This peculiar common law provision for the wife was incident to the tenure by free and common socage," and existed here after the year 1664.' In the event of such tenant's death, his wife had for her natural life the third part of all the lands and tenements whereof he was seised during coverture.* The Duke's Laws of 1664-65 de- clared dower forfeited for causeless absence of the wife.' The " charter of Libertys," passed by the first Legislature of New York in the year 1683, contained the following provision, which was as old as Magna Charta :° " Thatt a widdow, after the death of her Husband shall have her dower, and shall and may tarry ia the chiefe house of her husband forty days after the death of her husband, within which forty days her dower shall bee assigned her, and for her dower shall bee assigned unto her the third part of all the lands of her husband during coverture, except she were endowed of lesse before marriage." ' This " charter" was rejected after the Duke of York ascended the throne, but without materially affecting the law of dower in Kew York, as it was in this respect a declaratory statute only." The permanent Legislature of 1691 passed a similar charter,' but it shared a like fate, being rejected by the Crown." The later charter or act contains no special reference to dower, ' 1 R. S. 740 ; 1 R. S. 754, sec. 20. ^ Bisset's " Estates for Life," Chap. IV. ' Supra, p. 34. * In point of fact, a ceremonial marriage was necessary In the province of New York to determine coverture. » Supra, p. 13 ; Title " Dowryes ;" cf. 2 Bla. Com. 136 ; Stat. "West. 2 ; 13 Edw. I., c. 34. ' Magna Charta, ed. 1215, c. vii. ^ 3 R, L., Appendix No. II. » Doc. rel. Col. Hist. N. Y., III., 348, 351, 357, 370. » 1 Bradford's N. Y. Laws of 1694, p. 15. ■» Baskett's Laws of Prov. of N. Y. ; Doc. rel. Col. Hist. N. Y., IV., 263. JOINTUEBS. 123 and is content witli a statement, " That all the lands within this Province shall be esteemed Lands of Freehold and Inheritance in free and common soccage, according to the Tenor of East Greenwich, in their Majesties Realm of Eng- land." This act also was declaratory, the tenure was already precisely as stated,' and although the act was dis- allowed," the law of dower was wholly unaffected. Dower when assigned continued to exist as an estate in lands by the common law of the province, being a part of the re- formed common law tenure by free and common socage. There was no local departure from the laws of England concerning this estate made during the provincial epoch.' When Jones and Varick revised the English statutes deemed to extend to the province,* they included among them many relating to dower, including 27 Hen. VIII., c. 10, concerning jointures which barred dower.° The " Act concerning Dower" defined dower as a third part of aU the lands of the husband during coverture. Dower in lands then held by the socage tenure was often a vested though inchoate right," but the definition of the act extended dower in futuro, and also to those lands then made alodial.' In the year 1806 the Legislature, deeming the laws relative to the admeasurement of dower inadequate, provided more effective proceedings. ° With the exception of this act and some acts relating to the dower of alien women,' the com- mon law of dower was unaffected by material legislation until the Revised Statutes re-incorporated the prior legis- lation'" made by the Legislature of the State of New York ; but with some amendments, including one shortening the period during which the widow might demand her dower ' Infra, Appendix No. I. The merger of the Duke's -estate in the Crown left the socage tenure standing by the Act 12, Car. II., c. 34 ; mpra, pp. 19, 28. « Doc. rel. Col. Hist. N. Y., IV., 363. s IJ. & V. 245, sec. iv.; 1 K. & B. 44 ; 1 R. L. 52. * 3upra, pp. 77, 78. ' 3 J. & V. 4 ; 1 K. & R. 51 ; 1 R. L. 56. « Cf. Simar i>. Canaday, 53 N. Y. 398, 303. ' 3 J. & V. 67, sec. vi. 8 C. clxvli.. Laws of 1806 ; 2 R. L. 60. » Priest V. Cummings, 16 Wend. 617. i" 1 R. S. 740. 124 ANNULMENT OF MAEEIAGE. to twenty years after the death of her husband. The definition of " dower" in alodial lands contained in the Eevised Statutes' precisely accords with Littleton's defini- tion of dower in socage lands," and is more accurate than the old law, said by the revisers of 1813 to have been taken from the act of 1683, the celebrated " Charter of Libertys.'" But none of the acts is wholly independent of the common law, which alone defines the term " endowed" used in the statute, as well as the ancient custom of endowing women upon marriage. Thus a single word employed in a modern statute may be sufficient to stamp an act as auxiliary to the common law rather than as independent of it. Until dower was admeasured or assigned the widow's right was not an estate, but a mere right to dower.* After dower was assigned she had a freehold estate in possession, as of the husband's seisin. ° In the province of New York divorces a mnculo were allowed,' and it may be that the early provision of the Duke's Laws, before noticed,' was adopted with some indistinct reference to what was then a very unusual jurisdiction in a province of England. Jones and Varick' s revision does not in terms embody the Statute of Westminster 2, c. 34, and take away dower on a divorce a vinculo for the fault of the wife ;' but the revision of 1813 does embody West. 2d, c. 34,' and so the law now is." Where the wife obtains the divorce for the fault of the hus- band, her dower is unaffected." But where a marriage is annulled or declared void db initio^ dower falls, for the simulated or putative marriage ' 1 R. S. 740, sec. 1. = Sec. 36. ' 1 R. L. 86 ; mpra, p. 17. '' Lawrence e. Miller, 2 N. Y. 345 ; Moore «. Mayor, etc., 8 N. Y. 110, 113. « Lawrence v. Brown, 5 N. Y. 894, 400. « A.D. 1670, Record of Court of Assizes, pp. 316, 318, 319, 519 ; Burtis v. Burtis, Hopk. 557, 568 ; Perry ». Perry, 2 Pai. 501 ; cf. Forrest v. Forrest, 35 N. Y. 501, 506. ' Biipra, p. 133. 8 2 J. & V. 133 ; 1 K. & R. 93. 9 2 R. L. 199, sec. viii. '» 2 R. S. 146, sec. 48, now sec. 1759, sec. 1760, Code of Civ. Pro. ; 1 R. S. 741, sec. 8. " Wait «. Wait, 4 N. Y. 95, sec. 1769, Code Civ. Pro.; 1 R. S. 741, sec. 8. BEMEDT FOE WITHHOLDING DOWEE. 125 is declared not to be a marriage ; thus in law a marriage never existed.' UM nullum matrimonium ibi nulla dos. The old remedy for recovering dower in the Supreme Court by writ of dower' was early modified in the State of New York, so as to permit the widow's application to the surrogate or to the county courts/ There was also an ac- knowledged jurisdiction in chancery/ The Revised Stat- utes abolished the writ of dower," and substituted eject- ment,' continuing, however, the proceedings in the surro- gate's and county courts/ Under the Code of Procedure a proceeding for the admeasurement of dower became an action/ Since the year 1880, the present Code' of Civil Procedure regulates the action for dower/" The substan- tive law of dower is still found in the unrepealed portions of the Revised Statutes, which portions are in turn for the most part only declaratory of the common law/' The widow' s dower is now alienable, and the assignee thereof may by statute sue in his own name/" The adjudged cases in New York have, in consequence of the constitutional adoption of the common law, applied all the incidents of estates in dower in socage lands to the statutory estate in alodial lands, except where the common law is expressly modified by statute. " The husband' s estate by the curtesy was in New York an incident of the socage tenure, "and the estate itself seems to have been extended to the lands made alodial in 1787," I Price B. Price, 124 N. T. 589 ; of. sec. 1754, Code Civ. Pro. 5 3 J. & V. 5. 3 1 R. L. 62, sec. xii. * Swaine ». Ferine, 5 Johns. Ch. 482 ; Phelps «. Phelps, 143 N. Y. 197. 5 2 R. S. 343, sec. 24. e 2 R. S. 803, sec. 2. ' 2 R. S. 488. « Brown ». Brown, 31 How. Pr. 481, 499 ; sec. 30, Code of Pro. ; sec. 307, ibid. 9 C. 245, Laws of 1880. '» Sections 1596-1625. " House «. Jackson, 50 N. T. 161, 164 ; Price ii. Price, 124 N. Y. 589, 596. •2 Payne «. Becker, 87 N. Y. 153, 158 ; Mut'l L. Ins. Co. v. Shipman, 119 N. Y. 824, 330. " House V. Jackson, 50 N. Y. 161, 164 ; Price «. Price, 124 K Y. 589, 596. » »u.pra, pp. 10, 24, 37. ^^ Supra, p. 84; 3 J. &V. 67. 126 CUETEST. the quantity of such estate being part of the common law adopted by the constitution' and independent of tenure. Curtesy was a legal estate for life," dependent on marriage, seisin, issue born alive and death of the wife.' Pedis pos- sessio, or actual entry was not requisite to the completion of this tenancy in New York.* The act to abolish entails in 1787 " recognized estates by the curtesy as existing and continuing, and the Revised Statutes also save them and continue them by implication.' The English statutes, 6 Edw. 1., c. 3, and 32 Hen. YIII., c. 28, relative to forfeitures and the legal effect of aliena- tions by a tenant by the curtesy were re-enacted by Jones and Yarick in 1787,' and so passed into the Revised Laws of 1813.° The Revised Statutes finally declared that a con- veyance made by a tenant for life or years of a greater estate than he possessed should not work a forfeiture of his estate, but operate to pass only such tenant's interest,' and thus the law stands. Estates by the curtesy, having survived the Revised Stat- utes, were first questioned after the enactment of the acts relative to the property of married women, '° it being then thought that the general effect of these acts was to destroy estates by the curtesy." The general results of the various acts relative to the domestic relations have not been in the first instance to destroy vested rights, but to remove most of the common law disabilities of the wife, and to limit for the future the species of " patria poiestas,'^ which the com- mon law master of the household enjoyed by that law. ' Const, of 1777, sec. xxxv.; "Willard ou Real Estate, 58. ' Adair v. Lett, 3 Hill, 183. ' Bisset on " Estates for Life," Chap. III.; Jackson v. Johnson, 5 Cow. 74 ; Dunscomb v. Dunscomb, 1 Johns. Ch. 508. * Jackson v. Selleck, 8 Johns. 363. U J. & V. 345, sec. iv.; 1 K. & R. 44 ; 1 R. L. 53. « 1 R. S. 754, sec. 30. ' 1 J & V. 98, 101 ; 1 K. & R. 535. « 1 R. L. 181 ; Jackson ». Mancius, 2 Wend. 357. 9 1 R. S. 789, sec. 145. '» C. 300, Laws of 1848, am'd c. 375, Laws of 1849. " Benedict v. Seymour, 11 How. Pr. 176 ; Billings v. Baker, 38 Barb. 343 ; of. Clark v. Clark, 24 Barb. 581. ACTS. 127 In that system, as in every other archaic system, the rights and powers of the family as a whole were to some extent concentrated (though in a lesser degree than by the Roman law) in the husband and father.' His potestas or power extended particularly to the property of the wife, whether acquired before or after marriage. The efforts of modern equity to modify the strict rules of the common law touching women's property or successions were finally seized hold of by the Legislature in this century, and greatly extended in the series of separate property acts and other cognate acts so familiar to the profession." The Married Woman's Acts of 1848 and 1849 have been generally resolved not to affect the husband's rights already vested and fixed when such acts were passed.' Nor do they now deprive a husband of an estate by the curtesy where the marriage happens after the acts," in the event that the wife shall not have exercised in her lifetime her statutory power of disposition vdthout his consent." And although the exercise of such a power, arising under said acts, over property acquired by her subsequent to the said acts, may affect a husband's curtesy initiate, the acts them- selves are said not therefore " to impair the obligations of a contract" arising by the marriage.' Divorce a vinculo for the fault of the husband destroys curtesy.' The imperfect survey of legal estates in alodial lands attempted in this chapter must now conclude with a gen- eral reference to those sections of the article" which relate to the construction of particular limitations. Most well- drawn statutes of a reformatory character are constructed ' B.g., " Potestas mri." ^ C. 200, Laws of 1848 ; c. 576, Laws of 1853 ; c. 375, Laws of 1849 ; c. 90, Laws of 1860, repealed by c. 172, Laws of 1862 ; c. 249, Laws of 1879, as am'd by c. 300, Laws of 1880 ; c. 472, Laws of 1880 ; c. 881, Laws of 1884 ; c. 537, Laws of 1887 ; c. 594, Laws of 1892, and see c. 616, Laws of 1892, as to release of dower by divorced women. 8 Sleight «. Eeed, 18 Barb. 159 ; Westervelt v. Gregg, 12 N. Y. 202. * Burke ■». Valentine, 5 Abb. Pr. N. S. 164 ; s.c. 52 Barb. 412 ; affl'd 6 Alb. Law Joum. 167 ; cf. Ransom v. Nichols, 22 N. Y. 110. ' Hatfield v. Sneden, 54 N. Y. 280, 287. « Thurber v. Townsend, 22 N. Y. 517 ; Matter of Mitchell, 61 Hun, 372. ' 2 R. S. 146, sections 46, 47 ; Code of Civ. Pro., sec. 1759. 8 1 R. S. 721, Art. I. of Tit. II. of Chap. I. of Part II. 128 NEW ETJLES OF CONSTEUCTIOH. upon a definite scheme, in which rules of construction play a leading part. This is notably true of the Revised Stat- utes relating to legal estates in alodial lands. That great rule of common law construction known as "the rule in Shelley's case'" is precisely reversed, and hence a remainder limited to the heirs of a person to whom a life estate is given now entitles the heirs to take as purchasers." So the term "heirs" or other words of inheritance are made unnecessary to the creation or conveyance of an estate in fee. Every grant or devise thereafter executed was to pass all the estate or interest of the grantor or testa- tor unless the intent to pass a less estate appeared expressly or by implication in the terms of such grant.' It was quite otherwise by the common law.* Other rules of construction in harmony with the central section against perpetuities are contained in this article of the Revised Statutes. Their consideration belongs to a graver work on the general law of real property, and not to a mere account of the form of that law. ' 1 Rep. 93. « 1 E. S. 725, sec. 28 ; Barber «. Cary, 11 N. Y. 397, 401. » Infra, p. 173 ; 1 R. S. 748, sec. 1 ; Grain «. Wright, 114 N. T. 307, 310 ; Taggart r>. Murray, 53 N. T. 233 ; Sparrow ®. Kingman, 1 N. Y. 242, 357 ; Freeborn v. Wagner, 2 Abb. Ct. Appeal Decis. 175, 179. * 3 Bla. Com. 107. CHAPTER VII. trSES AND TRUSTS UNDER THE REVISED STATUTES. The article of the Revised Statutes relating to uses and trusts in lands instituted many important changes in the law antecedently regulating uses and trusts in New York. What that law was is so dependent on the history of equity jurisdiction in New York as to justify its consideration in this chapter, for the English law of trusts in lands was introduced here only by the erection of courts possess- ing the powers and jurisdiction of the Lord High Chan- cellor. The Statute of Uses, which plays so important a part in the jurisdiction of the English chancellors, was always regarded as in force in New York after the year 1664,' both because that statute was part of the law of Eng- land when the English imposed their jurisprudence on the province," and because it was an essential part of the great common law tenure by which New York was at first held of the Crown." After New York became a Crown province the socage tenure was still the only one open to the Crown,* The law governing the extent of equitable powers and jurisdiction in England (sometimes called the English ^m* honorarium, from the resemblance it bore to the prsetorian jurisdiction of Rome") is famUiar learning. It will, there- fore, suffice for present purposes to refer to such jurisdic- tion as one which ultimately became both in England and in New York complementary and supplementary of the p. 36, note 1 ; pp. 77 and 78. « Swpra, pp. 23, 55 ; Chalmers' Col. Opins., pp. 238, 293, 511. ' Sapra, pp. 10, 16, 31, 34. ■■ Supra, pp. 19, 28, 39. ^ The edicts of the prsetor modified the jus cimle just as the English chan- cellors modified the common law. Morey's Outlines of Boman Law, 100 ; ct. Scrutton's " Roman Law and the Law of England," Ch. XL; Hunter's Rom. Law, "jus honorarium" passim. 130 HISTOET OF EQUITABLE JUEISDICTION. jurisdictions exercised by the common-law courts." Un- fortunately tliere is no complete account of early equity jurisdiction in the province of New York, although there are fragmentary histories of greater or lesser degrees of accuracy and excellence." It is unnecessary for us, even if it were possible, to make an extended excursus on this sub- ject, as it will suffice for present purposes to disclose the simple machinery whereby English equity jurisdiction, in- cluding that over trusts, was imposed on the province of New York, and became part of its jurisprudence. Prior to the year 1683 English judicial administration in New York was largely of an executive character, and very rough and temporary in its nature.' A court of chancery with " power to hear and determine all matters in equity" was mentioned in an act of the first representative assembly in the year 1683, and the governor and council declared to constitute the court.* But quite independently of this act the governor of the province, as the custodian of the great seal, was deemed by the Privy Council in England to be ex officio chancellor of New York," and this view, after some objections from those favoring an autonomous government of the province, finally became part of the constitution of the province." Nevertheless in the year 1691, after the final grant of a representative government,' the Legislature passed "An Act for Establishing Courts of Judicature, etc.," which also declared that " ther» shall be a Court of Chan- cery within this Province, . . . and that the governor and ' Wilson's " History of Modem English Law," 3. ' Hoffman's Chancery Practice, I. , pp. 5-19 ; Graham's ' ' Treatise on Organi- zation and Jurisdiction of N. Y. Courts," p. 341 ; " N. Y. Civil List for 1867," Title, " Court of Chancery ;" Street's " Council of Revision of the State of New York," p. 12. ' HofEman states that the first bill in equity he was able to find was filed in the year 1677 (Ch. Pr., I., p. 19, note 3) ; cf. Street's " Council of Revision," p. 12. * An Act to settle Courts of Justice, passed Nov. 1, 1683 ; Appendix No. IV. , 2 R. L. of 1813. » Doc. rel. Col. Hist, of New York, V., 946, 947. This view is entirely inconsistent with the erection of a court of chancery by any act of As- sembly. » Chitty'B Prerog. of the Crown, 36. ' Hist. Int'd. to Grolier Bradford's N. Y. Laws of 1694, p. Ixii. PEOVINCIAL COUKT OF OHANCEET. 131 council be the said High Court of Chancery." ' This act was a temporary act, expiring in two years, and after several extensions it lapsed by limitation in the year 1699. Thence- forth the entire judicial establishment of the province, in- cluding the Court of Chancery, rested solely on the pre- rogative." The late Judge Hoffman, with an evident and perhaps laudable desire to place the court of which he was a master on some better historical foundation than the quondam hated prerogative of the Crown, argues' that the act of 1683* revived on the expiration of the act of 1691. ° Judge Hoffman's reasons are political rather than legal ; he attributes too much power to the original act of assembly. The Court of Chancery was always independent of that act, for the Crown, in the very commission granting a permanent representative assembly, reserved to itself the power to erect courts of law and equity.' In reasoning upon the preroga- tive we must not argue from later ideals of a representative government, but only from the contemporary law and Con- stitution. By that Constitution the governor of this prov- ince was alone chancellor by virtue of his custody of the great seal ;' and his ordinances for holding the courts were therefore in every respect valid." The jurisdiction of the chancellor then in New York, like that of his prototype in England, emanated originally from the Crown. Courts of equity were held in the province at stated times, pursuant to various ordinances of the governor in council, untU the establishment of the State government." The first Constitution of the State seemed to assume that the old judicial establishment of the province continued to be a part of the new order of things, for it mentions the chancellor and the Supreme Court justices among the future officers of the new State," although it fails to provide in ' N. Y. Laws of 1694, p. 2. » Notes 2, 24, and 36, Hist. Int'd. to Grolier Bradford's N. Y. Laws of 1694. »Ch. Pr., L, p. 14e«sej. * Supra. ' Supra. « Doc. rel. Col. Hist. N. Y., III., 623. ' CMtty's Prerog. of tlie Crown, 36. 8 Chalmers' Col. Opins. 195, 484. » Street's " Council of Revision," p. 14 ; Hoffman's Ch. Pr., I., p. 11. '» Const, of 1777, sections iii., xxiv., xxv., xxvi. 132 STATE COURT OF CHAXCBET. terms for the continuance of their several courts. The men- tion in the Constitution of a " chancellor," as one of the future officers of the State, was probably in itself sufficient to import' that in the absence of any regulation to the con- trary such officer was to be possessed of the well-known powers and jurisdiction of his predecessor ; and this con- struction was ultimately put upon the powers and the func- tions of the chancellor of the State." While under the first and the second Constitutions of the State the powers and jurisdiction of the great common-law court might safely be referred to the section adopting the former common law,' the jurisdiction and the powers of the chancellors could not be so surely defined. Consequently their nature and extent were deemed much more uncertain,* and they were not satisfactorily settled until the Revised Statutes finally made the powers and jurisdiction of the Court of Chancery in New York co-extensive with the pow- ers and jurisdiction of the Court of Chancery in England." When the Constitution of 1846 fused legal and equitable juris- diction in a Supreme Court possessing general jurisdiction in law and equity, the nature and extent of the equitable pow- ers and jurisdiction of the new court were again referred to the powers and jurisdiction of the Court of Chancery in England as it stood on July 4th, 1776." In this way the historic jurisdiction of the English chancellors over trusts in lands has been carried down to our own times, with the effect of preserving to some extent (notwithstanding the attempt to destroy them) those interests in lands still denominated equitable.' The Revised Statutes nevertheless annihilated " equitable estates" of the beneficiaries, although ' E.g., the appointment of a burgomaster by tbe law of Holland Invests the appointee in a Dutch colony with the well-known jurisdiction of a burgo- master in Holland. ' Graham's " Jurisdiction," etc., 341 ; Ames «. Blunt, 3 Pai. 94 ; 2 E. S. 173. ' Const, of 1777, sec. xxxv.; Const, of 1822-23, Art. VII., sec. 13. * Yates V. People, 6 Johns, at p. 349, Brief of Mr. T. A. Emmett ; Hoff- man's Ch. Pr., Int'd, I., pp. x., xi. « 3 R. S. 173, sec. 36. « Const, of 1846, Art. VI.; c. 280, Laws of 1847 ; Onderdonk v. Mott, 34 Barb. 106 ; Code of Civ. Pro., sec. 317 ; Const, of 1894-95, Art. VI. ' McCartney «. Bostwick, 32 N. Y. 53. ITS JURISDICTION INTEEPEETED. 133 it left a kindred class of "equitable interests" still cogni- zable only in the courts possessing equity jurisdiction. ' But prior to the Revised Statutes the jurisdiction of the English chancellors over trusts was in legal theory in full force in the State of New York, and there was nothing to prevent the appearance of those anomalous equitable estates which in England corresponded with legal estates, and even with legal entails.' Equitable entails, like legal entails, could be barred by a common recovery.' The obligation of the chancellors of the State of New York to adhere to the practice and jurisdiction of the Lord Chan- cellor was not, prior to the Revised Statutes, on the best foundation ; for the constitutional adoption of the common law in force in the province was not always regarded as expressly adopting the proceedings and decisions of the High Court of Chancery.' But Chancellor Kent, at the threshold of his chancellorship (by a decision equivalent to a perpetual edict), interpreted the constitutional pro- vision in question in a more extended manner than any yet considered here,' saying, " It may be laid down as a certain truth that the English system of equity jurisprudence forms an important and very essential branch of that ' common law ' which was recognized in the Constitu- tion of this State. . . . Our business, then, as questions arise is to discover what rule, if any, has been established by the courts in this State, and if none, then what was the existtag rule in the English system of equity at the com- mencement of our Revolution ?" ° The succeeding chancel- lors adopted this view of their jurisdictions, and in this way the ancient and established jurisdiction of the English chan- cellors over uses and trusts in land (together with the two- fold aspect of property known to English jurisprudence) was firmly imbedded in the jurisprudence of the State when the revisers came to their task in the year 1827. 'IRS. 739, sec. 60. ^ Spence's Eq. Jurisdic, Ch. X., vol. II. 3 Mr. O'Conor in Wright «. Miller, 8 N. Y. 16, 17. * Hoffman, Int'd. to Ch. Pr., I., pp. x. xi. = Supra, pp. 47, note, 51, 55, 70, 71. * Manning «. Manning, 1 Johns. Ch. 527, 531. 134 TEUSTS. At the period last referred to, the English, law of trusts had ia practice made very little demands upon conveyancers in New York. The social and family exigencies were not yet such in this State as to make its application often ex- tensive or necessary. ' Yet in the manner already indicated the entire English law of trusts in lands was with few ex- ceptions then to be regarded as a part of the law of New York ; but owing to the prior infrequency of limitations in trust, and the smaU place which equity then filled in the jurisprudence of New York, the revisers were much more free to deal with uses and trusts in lands than with legal estates. They therefore had little hesitation in abolishing all pre-existing uses and trusts and substituting a statutory system in their place." The substituted scheme involved the retention of the antinomy of the English judicial sys- tem,' with its separate jurisdictions in law and equity,' and also an important part of the Statute of Uses, whereby legal estates were vested in possession in most cases in the persons beneficially entitled.' The maintenance of these separate jurisdictions assured the continuance of trusts in lands,' although equity jurisdiction was, perhaps, more modified by the article on uses and trusts than by the chapters dealing directly with the jurisdiction of the Court of Chancery. Trusts " were not on a true foundation, according to Lord Mansfield, until Lord Nottingham, the father of English equity, held the great seal." ' Now, as stated before in these pages,' Lord Nottingham was made Lord Chancellor only in the year 1673, when New York had been for nearly a decade a province of England. Lord Eldon, who is re- garded as having crowned the edifice of English equity ' After the R. S. the revisers were frequently engaged in litigations over trusts in lands created by persons desiring to tie up their estates for their posterity. " Tempera mutantwr, et nos mutamur in illis." » 1 R. S. 727, Art. II., " Of Uses and Trusts." » 3 R. S. 167, 196. * The revisers were prevented from infringing on these jurisdictions by their constitutional recognition. Ames v. Blunt, 2 Pai. 94. » 1 R. S. 727, sections 47, 49. « McCartney v. Bostwick, 32 N. Y. 53, 57. ' Burgess v. Wheate, 1 Eden, 177, 223. " Supra, pp. 60, 51. OLASSIFIOATIOIT OF TETJSTS. 135 jurisdiction, was a contemporary of Chancellor Kent, and continued to sit in the Court of Chancery of England when Chancellor Kent had ceased to be the chancellor of New York. But, as stated above, at the time the revisers approached the work of revision, uses and trusts in the lands of New York were assumed to be, and, in fact, were little different from uses and trusts of lands in Eng- land. Anterior to the Revised Statutes, trusts were variously classified. When classified according to the duty imposed upon the trustee they were of two sorts — " naked" or " passive," and " active" or " special." The first the re- visers thought it needless to retain ; they were in reality what most permanent uses were before the Statute of Uses, and were therefore open to like objections. In reference to the manner of their creation, trusts were classified as " trusts by act of the parties" and " trusts by operation of law" — a classification not quite perfect, for "implied trusts" really belonged in both divisions. " Special trusts by act of the parties" were such as the revisers termed " express trusts," being of an active nature and expressed in writing pursuant to the requirements of the Statutes of Frauds or Wills. Trusts by operation of law were variously classified as "presumptive," "resulting," and "constructive." Con- structive trusts arose ex maleficio. " Resulting trusts" were those which chancery enforced when circumstances forbade the conclusion that a limitation absolute on its face was intended to convey the absolute usufruct with the legal estate. Being quite arbitrary, these classifications were often ignored in practice, and contrary terms were used as equivalents.' Uses and trusts were further divided, according to their direct object, into "public" or "private," "charitable or eleemosynary," "pious," and "superstitious." Prior to the Revised Statutes, the only positive restriction against the creation of private trusts in lands was that the object and purpose should not be contrary to public morals ' ^. jr., 1 K. S. 728, sec. 54 ; Poote «. Bryant, 47 N. Y. 544, 547. 136 DEFINITION OF A and policy.' The Statute of Frauds (29 Car. II., c. 3), which, found its counterpart in legislation originating here,' and was afterward acted on as if in force de Jure' re- quired all trusts in lands to be evidenced by writing. Pub- lic policy dictated that no fundamental legal rule should be violated by means of a trust ; a perpetuity could not therefore be created by means of a trust.* The analo- gies between legal and equitable estates were then very striking. Trust estates were deemed susceptible of the same limitations as legal estates, and were subject to the same canons of descent. The husband had curtesy in the wife' s trust estate, although dower by some anomaly was excluded. Equitable estates taU were conveyed by means of a common recovery.' Precisely what effect the statutes abolishing legal entails' had by analogy on equitable estates tail was never decided in New York, but it was evidently the assumption of the leading property lawyer of his day in New York, that they were converted into equitable fee simples.' In a note to Kent's Commentaries, Comstock, J., has fur- nished a very precise definition of a valid trust :' " (1) A sufficient expression of an intention to create a trust ; (2) a beneficiary who is ascertained or capable of being ascer- tained ; that the appointment or non-appointment of a trustee of the legal estate is not material ; that if the trust or beneficial purpose be well declared, and if the beneficiary is a definite person or corporation capable of taking, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir, or next of kin, as the case may be, and that outside of the domain of chari- table uses no definiteness of purpose will sustain a trust if there be no ascertained beneficiary who has a right to en- force it." But the insertion of the words " in trust" in a ' Downing v. Marshall, 33 N. Y. 366, 377 ; s. p. as to trusts in personalty ; Gilman «. Reddington, 24 N. Y. 9, 13. » Supra, pp. 16, 50, 78, note 7. ' 3 J. & V. 91. • Infra, p. 149. « Brydges v. Brydges, 3 Ves. 130, 136 ; cited 18 Ves. at p. 418. ' Supra, pp. 73, 79. Mr. O'Conor in Wriglit ®. Miller, 8 N. Y. 16 and 17. 8 Cited in Holland v. Alcock, 108 N. Y., at p. 330. EEVISED STATUTES. 137 devise of lands is now by no means conclusive of an in- tention to create a trust. ' The principal changes instituted in the law^ of uses and trusts in lands by the Revised Statutes must be very briefly summarized. The article on " Uses and Trusts," " proceed- ing from the general to the particular, abolished all " uses and trusts" in lands, except as authorized and modified by that article, and, like the Statute of Uses, declared that every estate and interest in lands should be deemed a legal right cognizable in the courts of lav?, except when the statute otherwise provided.' While uses and trusts were thus expressly abolished and feudal tenures also declared non-existent,' the residue of the scheme of the Revised Statutes seems to preserve most uses,' so that it has been said that a covenant to stand seised, although operative only under the Statute of Uses, still remains operative to convey title as before the Revised Statutes." The scope of the repealing clause' just mentioned has been a fruitful theme for litigations. "Public trusts" or " charitable uses" ' were not enumerated in the saving clause of the statute. Still many eminent persons held that they were not within the purview of the Revised Stat- utes, just as their predecessors had maintained that sec- ondary uses were not within the purview of the Statute of Uses." Others equally eminent held the contrary opinion." Until the year 1853 this particular question was very much in doubt. Williams «. Williams" then reiterated the doc- trine of the Girard College case, that the English law of charitable uses did not depend upon the statute, 43 Eliz., ' Freeborn v. Wagner, 3 Abb. Ct. App. Decis. 175, 179. 2 Art. 11., Tit. II., Ch. I., Part II., R. S. ; 1 R. S. 727. 8 In Chapter I., Part II., R. S. * Supra, p. 99. ' Infra, p. 141. ' Eysaman v. Eysaman, 34 Hun, 430. ' 1 R. S. 727, sec. 45. * What were charitable uses may be ascertained from Boyle's " Law of Charities," London, 1837. ' Shotwell V. Mott, 3 Sandf. Ch. 46 ; Tucker ®. St. Clement's Church, 3 Sandf. 343 ; 8 N. Y. 558 ; 1 American Law Register, 538. '» Yates V. Yates, 9 Barb. 324 ; King v. Rundle, 15 Barb. 139 ; Voorhes v. Presbyterian Church, 19 Barb. 103. " 8 N. Y. 535 ; cf. Holland «. Alcock, 108 N. Y. 813, 335. 138 CHAEITABLE USES. c. 4, and therefore did not fall with, the repeal of the Eng- lish Statutes in 1788,' but continued down to the Revised Statutes to be part of the common law of New York. Williams' case certainly did decide that the Revised Stat- utes had not abrogated the common law relating to those particular charitable uses and trusts in personal estate which could be sustained without recourse to the cy pres' doctrine. This doctrine grew out of the prerogative and not out of the judicial power of the Lord Chancellor, and therefore had no place in the common law of New York.' The advocates of charitable uses contended that Williams v. Williams supported the validity of charitable uses and trusts iu lands. This was hardly tenable, and the process of distinguishing Williams «. Williams soon began. In Owens V. Missionary Society of the Methodist Church,* Downing v. Marshall,' and Beekman ». Bonsor," the doc- trine of Williams' case failed of application. In Levy v. Levy' it was vigorously assailed. In the case of Rose v. Rose' the Court of Appeals had shortly before held that charitable uses formed no exception to the law against per- petuities. In 1866 Williams v. Williams seemed to be finally overturned by the decision in Bascom ■». Albertson,' but subsequently in the report of Burrill «. Boardman'" the learned reporter was encouraged by some vagueness to inti- mate that the question was still an open one. In Holmes % Mead" the court, finally in 1873, disapproved of the re- porter's note to BurrUl «. Boardman, and the announce- ment was made that the controversy was definitely closed." A new system of public trusts or charitable uses grew up in New York subsequent to 1784, and was completed by the repeal of the English Statutes in 1788. It is therefore evident that the revisers intended that the common law of ' C. 46, Laws of 1788. sec. 37 ; 2 J. & V. 282. ' The cypres doctrine is derived originally exclasiyely from the Roman or civil law. « Beekman v. Bonsor, 23 N. Y. 298. * 14 N. T. 380. » 23 N. Y. 366. « 23 N. Y. 298. ' 38 N. Y. 97. « 4 Abb. Appeal Decis. 108. « 34 N. Y. 584. '» 43 N. Y. 254. » 52 N. Y. 832, 338. " Holland V. Alcock, 108 N. Y. 312, 336. OT PEES DOOTEINE. 139 public trusts and charitable uses should not survive the Revised Statutes.' A complement of charitable uses was the cypres doctrine of the English Court of Chancery," which has been held to have no place in New York,' at least after the repeal of the English Statutes in 1788." It may not be amiss to observe at this point that the retention of the cy pres doctrine in some form, in harmony with a revised code of charities, saving all charitable uses, would have lately preserved for the public several splendid bequests and devises of great mag- nitude. Something already has been accomplished in a needed direction by a recent act "to regulate gifts for charitable purposes," ° which provides that no gift, grant, bequest, or devise to religious, educational, charitable, or benevolent uses, in other respects vaUd, shall be deemed invalid by reason of the indefiniteness or uncertainty of the beneficiary, and that the legal title to the lands or prop- erty given shall vest in the trustee named, or failing a trustee, in the Supreme Court. The second section of this act gives the court control over gifts and grants for such uses as are named in the act." Superstitious uses, or those which have for their object the propagation or the rites of a religion not tolerated by law, were probably invalid in the province of New York (if the Church of England was established here), and to the same extent as in England.' But no reported case seems 1 Levy ®. Levy, 33 N. T. 97 ; White v. Howard, 46 N. Y. 144, 168 ; Hol- land ». Alcock, 108 ST. Y. 313, 334 ; Cottman «. Grace, 112 N. Y. 299, 306 ; O'Conner v. GifiEord, 117 N. Y. 275 ; Fosdick «. Town of Hempstead, 125 N. Y. 581, 591. ° This doctrine was made very complete and systematic by the Lord Chan- cellors of England. ' ' Charities ought to be favored in law. ' ' Boyle's Law of Charities, Chap. III., Book II. > Holland ». Alcock, 108 N. Y. 312, 380. * Owens V. Missionary Society of the M. E. Church, 14 N. Y. 380. = Chap. 701, Laws of 1893, sec. 1. * Ibid., sec. 2. 'The invalidity of "Superstitious Uses" in the Province of New York depends partly on the question, whether the Church of England was estab- lished here by law, and next on our adoption of the English statutes of 28 Hen. VIIL, c. 10, and 1 Edward VI., c. 14, against superstitious uses. (See my note 81, Grolier Bradford's N. Y. Laws of 1694, p. cxxix.) 140 " SUPEESTITIOUS USE." to have arisen here prior to the repeal of all the English statutes on the completion of Jones and Varick's revision/ when the new system of charities came into being." When the Constitution of 1777 came into operation religious toler- ation was secured,' and when the statutes relative to the English Church were repealed, there ceased to be any legal standard by which to determine a ' ' superstitious use' ' in the sense in which that obnoxious term is employed in the com- mon law, and outside of the common law ^' superstitious use" ceases to be a term of science. Grilman v. McArdle' certainly does not decide that a trust to expend money for masses is void as a " superstitious use," while in Holland v. Alcock' a like bequest is argued on as a " charitable" or " pious use," ° and only avoided because this trust other- wise in terms conflicts with the law of the State regulating the definite quality of all trusts. Had the law of 1893' then been in force, another question would have been presented in Holland v. Alcock.' The clause abolishing " uses" and " trusts," ' except as provided for in the Revised Statutes, does not seem to avert the employment of the term " shifting use" to desig- nate certain "future interests" tolerated within certain limits by the Revised Statutes. '° Notwithstanding the very general repealing clause of the Revised Statutes, in relation to uses and trusts and the abolition of resulting trusts in favor of persons paying the consideration," advisedly,'" other resulting trusts in lands p. 79. » Holland v. Alcock, 108 N. T. S12. ^N. T. Const, of 1777, sec. xxxviii.; Const, of 1894-95, Art. I., sec. 3; Const. U. S. Amendment, Art. I. * 99 N. Y. 451. <■ 108 N. Y. 312. « At p 839 ' C. 701, Laws of 1893. s As to statutory application of cy pre8 doctrine, see opinion of Mr. Chief Justice Savage in Coster «. Lorillard, 14 Wend., at pp. 308, 309. 9 1 R. S. 727, sec. 45. " Head-note to Oilman «. Keddington, 24 N. Y. 9 ; Harrison «. Harrison 36 N. Y. 543. " Garfield ®. Hatmaker, 15 N. Y. 475 ; Everitt «. Everitt, 48 N. Y. 218 ; 1 R. S. 728, sec. 51. Creditors' rights were, however, saved by the next section. McCartney v. Bostwick, 33 N. Y. 53 ; Underwood ii. SutclifEe 77 K Y. 58. " If the person contributing the consideration is not privy to it, aliter 1 R. S. 728, sec. 53 ; Gilbert v. Gilbert, 2 Abb. Appeal Decis. 256. EEF0EM8 IN THE LAW OF TETJSTS. 141 survive the statute— e.p'., in favor of partners,' children/ and other relations' of person paying the consideration, and although trusts relating to real estate* cannot be created by parol, such resulting trusts may be proven by oral evi- dence.' So trusts arising ex maleflcio, or through the frauds of persons occupying coniidential relations, survive." It was the intention of the revisers to destroy all naked or passive trusts ; they were, in reality, what most uses were before the Statute of Uses, and therefore needless to retain.' It has been well said that the intent of this re- vision was simply to restore the Statute of Uses to what it was intended to be." Yet such was not the only reform contemplated. The scheme was far greater than that, and involved nothing less than the complete modernization of the former law relating to land, the extinction of tenures, and the obliteration of all rules which were purely feudal and had no relation to the essential notions of all prop- erty. To efiEectuate the intention of the Statute of Uses, the re- visers provided that every person who, by virtue of any grant, assignment, or devise then was or thereafter became entitled lo the actual possession of lands, and the receipt of the rents and profits thereof in law or in equity, was to be deemed to have a legal estate therein of the same quality and duration and subject to the same conditions as his ben- eficial interest.' This section effectually vests all such uses > 1 R. S. 738, sections 50, 51 ; Chester «. Dickinson, 54 N. Y. 1 ; Fairchild v. Fairchild, 64 N. Y. 471 ; Traphagen «. Burt, 67 N. Y. 30 ; Greenwood v. Marvin, 111 N. Y. 433. ' Siemon ■». Schurck, 39 K Y. 598. ' Foote ®. Bryant, 47 K Y. 544. . * Infra, p. 160 ; 3 R. S. 134, sec. 6 ; 3 R. S. 137, sec. 3 ; Wheeler v. Rey- nolds, 66 N. Y. 337 ; DiUaye «. Greenough, 45 N. Y. 438, 445. » Chester v. Dickinson, 54 N. Y. 1 ; Traphagen v. Burt, 67 N. Y. 30, 33 ; Swinburne v. Swinburne, 38 N. Y. 568 ; Foote v. Bryant, 47 N. Y. 544, 547. « 1 R. S. 728, sections 50, 53 ; "Wheeler «. Reynolds, 66 N. Y. 337. ' 1 R. S. 737, 738, sections 45, 47, 49 ; Rawson v. Lampman, 5 N. Y. 456 ; Downing «. Marshall, 33 N. Y. 366, 378, 379. 8 Bysaman «. Eysaman, 34 Hun, 430, 433 ; cf . Wright ii. Douglass, 7 N. Y. 564. « 1 R. S. 737, sec. 47 ; cf. 1 R. L., p. 73, sections 1, 3, and 3. 142 in possession.' Those nses executed under the former Statute of Uses were also confirmed." In four cases only were trustees permitted to take the legal title to lands. The former active or special trusts which have thus received the sanction of the Kevised Statutes' and survive as express trusts are indifferently- termed "the four express trusts," "statutory trusts," or " trusts by virtue of the fifty-fifth section." * Other active or special trusts survive as " powers in trust." ' It has been intimated that the revisers committed a grave error in attempting to enumerate " all the proper occasions for creating a trust estate."" But the revisers, above all things, desired to limit the number of cases where the legal title and the usufruct or the beneficial use should be in two different classes of persons, and also to vest the legal title in the persons having the beneficial use of the estate in the greatest possible number of cases.' The fifty-fifth section was devised for this end, and it would be difficult to affirm with truth that it has failed of its object, or that it is inartificially adapted to its purpose. The only express trusts in lands permitted by the fifty- fifth section were :' " 1. To sell lands for the benefit of creditors. 2. To sell, mortgage or lease lands, for the bene- fit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands, and apply them to the education and support, or either, ° of any person during the life of such person, or for any shorter term subject to the rules prescribed in the first article of ' Salmon v. Stuyvesant, 16 Wend. 331, 324 ; Eysaman v. Eysaman, 24 H\in, 430 ; Root «. Stuyvesant, 18 "Wend. 357. » 1 R. S. 737, sec. 46. » R. S. 738, sec. 55. * Leggett V. Perkins, 3 N. Y. 297, 307 ; Downing «. Marshall, 38 N.T. 366, 379. ' 1 R. S. 729, sec. 58; Belmont v. O'Brien, 13 N. T. 394, 404 ; Downing «. Marshall, 23 N. Y. 366 ; Gilman v. Reddington, 34 N. Y. 9, 15. « Downing v. Marshall, 38 N. Y. at p. 380. ' Heermans «. Robertson, 64 N* Y. 333 ; Cooke v. Piatt, 98 N. Y. 35 39. 8 1 R. S. 728. ' So up to 1880, when the third trust purpose was enlarged. C. 330, Laws of 1830 ; vid. infra. TEUST PITEP08ES. 143 Title II.' 4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first article of Title II. ° An attempt to create an express trust for any other pur- pose vests no estate in the trustee, but the trust may never- theless be valid as a power in trust.' The first of these trust purposes was deemed essential to the fullest protection of creditors, for had the legal title been permitted to remain in the debtor, alienation might be embarrassed and complications might arise concerning judgments and priorities under the recording acts.* The second trust purpose to sell, mortgage, or lease lands, for the benefit of legatees or for the purpose of satisfying any charge thereon (when standing alone), created some diffi- culty. A trust to lease seemed to imply a trust to receive the rents for the term, thus contravening the Revised Stat- utes' own standard of perpetuity, " two lives in being ;" for formerly a rent could not be reserved to a stranger. " But the court held that a lease was only one mode of alienation, and that its execution did not necessarily consume any ap- preciable space of time. When a trust is created under the other subdivisions of the fifty-fifth section, so that the trustee takes the legal estate, a power to make leases in possession is often annexed to this estate or implied, and is still valid in equity stA modo, and without reference to the authority conferred by the second subdivision of this section. " The third of the authorized express trust purposes created much discussion, not aUayed by the speedy amendment in 1830,' so as to cause it to read : "To receive the rents and profits of lands, and apply them to the use of any person' ' Art. I., Tit. n., Ch. I., Part U., R. S. " IMd. ' 1 R. S. 729, sec. 58 ; Downing v. Marshall, 23 N. Y. 366, 377, 879 ; Heennans v. Robertson, 64 N. Y. 333 ; Henderson v. Henderson, 113 N. Y. 1,10. * Heennans 9. Robertson, 64 N. Y. 333 ; People ex rel. Short v. Bacon, 99 K. Y. 375 ; Cunningham ». Preebom, 11 Wend. 340, 249. 5 Hawley v. James, 16 Wend. 61, 153. « Greason v. Keteltas, 17 N. Y. 491. ' C. 330, Laws of 1830. ' No longer " to the education and support, or either, of any person." 144: TETJST "to EECEIVE AND PAY OVEE." during the life of such person, or for any shorter term, sub- ject to the rules prescribed in the first article of this title." ' The rules thus referred to are those relating to legal estates, vesting, and perpetuities." The singular " person" involves the plural.' As originally drawn, the revisers, no doubt, intended that* the beneficiary should be a person incapax, and that the trustees should be the responsible arbiters of the beneficiaries' necessities,' and so they provided that if the surplus income was not otherwise disposed of, it should belong to the persons presumptively entitled to the next eventual estate ;° and also that such surplus, beyond the sum necessary for the education and support of the bene- ficiary, should, in the event that there was no valid direc- tion for accumulation, be liable in equity to the claims of creditors.' The amendment of 1830 somewhat disturbed the unity of the revision, which originally contemplated trusts only in the case of persons incapable by reason of some disability of looking after themselves ;" as it was designed to abolish aU formal and passive trusts, such as one to receive the rents, profits, and income of land, and pay the same over to a beneficiary. Some members of the profession still contended that a simple trust " to receive and pay over" could not be re- garded as an active trust, and that the words, " to apply to the use of," meant the same thing as " to apply to the edu- cation and support of," thus involving a discretionary ap- plication or an active trust. But the courts finally held otherwise," with the result that the trust purpose " to apply to the use of," now tolerates a trust to receive and pay over the rents and profits of lands." This construc- ' 1 R. S. 728. " Coster v. Lorillard, 14 Wend. 265, 318. » 2 R. S. 778, sec. 11, Appendix. * Craig u. Hone, 2 Edw. Ch. 554. » Coster B. Lorillard, 14 "Wend. 265, 321, 323 ; Leggett ®. Perkins, 2 N. Y. 297, 310. » 1 R. S. 726, sec. 40 ; Gilman d. Reddington, 24 N. Y. 9. ' 1 R. S. 729, sec. 57. * Coster V. Lorillard, 14 Wend. 265, 321 ; Craig «. Hone, 2 Edw. Ch. 554. = Leggett n. Perkins, 2 N. Y. 297, 308. i" Moore v. Hegemen, 72 N. Y. 376, 384. A beneficiary of such a trust should not be made a trustee, as complications may arise unnecessarily. Wet- more V. Truslow, 51 N. Y. 338. CUTTING V. OUTTmO. 145 tion of the extent of the third trust purpose, supplemented by a clause of the statute prohibiting anticipation, which is more rigorous than any the common law knew," toler- ates a species of naked or passive permanent trusts not originally contemplated by the revisers." Trustees of the trusts last mentioned are not permitted to be the final arbiters of the beneficiaries' necessities, for the statute declares that the surplus income, beyond that which is necessary for the education and support of the benefi- ciary, shall be liable in equity to the claims of creditors.' This surplus may be reached by a creditor's bill after the return of an execution unsatisfied.* Where a trust estate is created under the third subdivision of the fifty-fifth section, the fact that the beneficiary for life has also a general power of appointment by last wiU, and has exercised that power, does not make the property part of his assets in equity, or subject to the claims of his creditors as against his appointee." The fourth express trust purpose :° "To receive the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the first article of this title' ' ' of the Revised Statutes, restricts accumula- tions to a period somewhat shorter than that prescribed by the reforming statute (39 and 40 Geo. III., c. 98) enacted in England after the cases arising on Mr. Thelluson's will.' Accumulations of trust estates are now permitted only for the benefit of minors, and must terminate with their mi- nority. ' Where a trust, permitted by the Revised Statutes, is ex- pressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees in contravention of ' 1 R. S. 730, sec. 63. See the historical resume of this restraint in Mr. Sandford's brief in Noyes ». Blakeman, 6 N. Y. at pp. 574, 575. ' Leggett V. Perkins, 3 N. Y. 297, 310. 2 1 R. S. 729, sec. 57. " Williams v. Thorn, 70 N. Y. 270, 273 ; and again 81 N. Y. 881 ; ToUes v. Wood, 99 N. Y. 616 ; Code Civ. Pro., sec. 2463. 5 Cutting v. Cutting, 86 N. Y. 523. « 1 R. S. 729. ' The article relating to legal estates. 1 R. S. 731. « Supra, p. 115. ' Harris v. Clark, 7 N. Y. 242. 146 EFFECT OF THE FIFTY-FIFTH SECTION. the trust is made absolutely void.' But it seems that a power of sale terminating with the trust, though given to the trustee or to the cestuis que trustent, does not neces- sarily render the trust void." The enumeration in the Revised Statutes of the instances in which trust estates may be created, or, in other words, of the instances where the legal title may be cast or devolve upon a trustee, responsible to courts of equity, has not materially abridged the jus disponendi of owners, or deprived them of the power of impressing upon their real estates other limitations having the general characteristics of a trust besides those enumerated in the fifty-fifth section ; but such other trusts, by the statute, survive as powers in trusts un- less they contravene the general policy of the law or the provisions against perpetuities.' The intention of the Eevised Statutes to limit the in- stances of the active trusts to the fewest possible cases being very clear, it naturally follows that the intent to cre- ate an express trust will never be presumed in the absence of an express declaration, when the whole purpose of the settler may be accomplished without peril as a power in trust.' For some time after the Revised Statutes it was a ques- tion whether or not in those cases, where trusts expressly authorized were combined with trusts unauthorized in any manner, the vice of the illegal trust purpose did not de- stroy the valid trusts also? The question was especially pertinent in view of the section which provided that " where an express trust shall be created for any purpose not enumerated, . . . no estate shall vest in the trustees. " ' ' 1 K. S. 730, sec. 65, amended by c. 275, Laws of 1882, as amended by c. 26, Laws of 1884, permitting trustees to mortgage trust property in certain cases with the consent of the Supreme Court. " Crooke «. County of Kings, 97 N. Y. 421 ; cf. Belmont s. O'Brien, 12 N. Y. 394 ; Heermans v. Kobertson, 64 N. Y. 332, 353. ' Farmers' Loan & Trust Co. o. Carroll, 5 Barb. 613, 652 ; Selden ®. Ver- milya, 3 N. Y. 525, 536 ; Downing «. Marshall, 23 N. Y. 366, 377 ; Belmont «. O'Brien, 12 N. Y. 394, 403 ; Gilman v. Eeddington, 24 N. Y. 9, 15 ; Delaney e. McConnack, 88 N. Y. 174, 181 ; infra, p. 157. * Heermans v. Robertson, 64 N. Y. 322. • 1 R. 8. 729, sec. 58. ESTATE OP THE TBT7STEE. 147 But the courts adhered to the old rule, and where a trust settlement under the Eevised Statutes is such that the valid and the invalid trust purposes may be separated without subverting the entire scheme of the settler, the courts will take cognizance of the valid trusts.' The estate which the trustee of any of the four express or statutory trusts now takes, although apparently enlarged by the section which declares that the trustee shall be vested with the whole estate in law and in equity, subject only to the execution of the trust," is in reality little en- larged. Now, as before the revision, the trustee's legal estate is commensurate with the trust duties imposed on him, and when these are performed or at an end, the trus- tee's estate ceases,' and by force of the statute* devolves upon the persons beneficially entitled." No doubt, in a proper case a court of equity may compel, now as before the Revised Statutes, the conveyance of an outstanding legal title, although such conveyance may appear to be unnecessary in all cases." The principle of " once a trus- tee always a trustee" has, in the case of trustees of personal estates, suffered some modification by the ap- plication of statutes of limitation ;' but this we need not consider in this connection. On the other hand, the revisers have provided that the persons for whose benefit a trust estate may now be created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.' Thus, v/ao ictu, ' Oxley B. Lane, 35 N. T. 340 ; Harrison, v. Harrison, 86 N. T. 543 ; Schet- tlers. Smith, 41 N. Y. 328 ; Manice v. Manice, 43 N. Y. 303 ; Van Schuyver T>. Mulford, 59 N. Y. 426. U R. S. 729, sec. 60. ' NicoU V. Walworth, 4 Denlo, 385 ; Selden «. Vermllya, 3 N. Y. 525 ; Manice «. Manice, 43 N. Y. 303, 363 ; Crooke v. Comity of Kings, 97 N. Y. 421, 446 ; Kip v. Hlrsch, 103 N. Y. 565, 570. MRS. 727, sec. 47 ; 1 R. S. 730, sec. 67. ^ Selden «. Vermllya, 3 N. Y. 525 ; Wright v. Douglass, 7 N. Y. 564, 570 ; Ring «. McConn, 10 N. Y. 268, 271 ; In re Livingston, 34 N. Y. 555 ; Kip V. Hlrsch, 103 N. Y. 565, 570. « Anderson i>. Mather, 44 N. Y. 249 ; sed cf. In re Livingston, 34 N. Y. 555, 567. ' Lammer v. Stoddard, 103 N. Y. 672 ; Gllmore v. Ham, 142 N. Y. 1, 10. « 1 R. S. 739, sec. 60 ; cf. 97 N. Y., p. 447. 148 DEVOLUTION OF TKUST ESTATES. former equitable estates, with all their analogies to legal estates, were destroyed.' The beneficiaries of a trust for the receipt of the rents and profits of lands are precluded by the statute from assigning or disposing of their interest," and if the settler authorize them to assign the same this has been said of itself to invalidate such trust.' The revisers wisely changed the former rule, that on the death of a trustee of lands, such lands passed to the trus- tee's heirs or devisees, clothed with the trust. The title thereto, if the trust is unexecuted, now vests in the Court of Chancery* (Supreme Court), and it is so in the event of the death of the grantee of a power in trust.' The new rule has of course relation only to express trusts or to powers in trust, and not to implied or constructive trusts.' The Kevised Statutes have not required that an express trust in lands shall be created in any particular language, or that the exact words of the statute shall be employed. It is sufficient if |]the intention to create such trusts may be inferred from the whole will, or from a deed or conveyance in writing subscribed by the settler ;' but an intent to create an express trust will not be presumed where the purpose may be accomplished under a power conferred in a deed.' Where the trusts are created by a conveyance recorded (as is necessary if the conveyance is to be valid against subse- quent creditors of the trustees or hoTia fide purchasers for ' Noyes a. Blakeman, 6 N. Y. 567, 579 ; Ciooke d. County of Kings, 97 N. Y. 421, 447. « 1 R. S. 730, sec. 63. ' Coster v. Lorillard, 14 Wend. 265 ; cf . Crooks v. County of Kings, 97 N. Y. 421 ; Belmont v. O'Brien, 12 N. Y. 394 ; Heermans ®. Robertson, 64 N. Y. 332, 353, as to alienation by trustees. * 1 R. 8. 730, sec. 68 ; Hawley ». Ross, 7 Pai. 103 ; Anderson i>. Matner, 44 N. Y. 249 ; Matter of Waring, 99 N. Y. 114. « 1 R. 8. 734, sec. 102 ; Delaney v. McCormack, 88 N. Y. 174, 182. « Johnson v. Fleet, 14 Wend. 176. ' 2 R. 8. 134, sections 6, 7 ; Leggett «. Perkins, 3 N. Y. 297 ; Wright n. Douglass, 7 N. Y. 564 ; Dillaye o. Greenough, 45 N. Y. 438, 445 ; Vernon v. Vernon, 53 N. Y. 351 ; Heermans ®. Robertson, 64 N. Y. 332 ; Moore o. Hegeman, 72 N. Y. 376, 384 ; Donovan ®. De Mark, 78 N. Y. 244 ; Morse o. Morse, 85 N. Y. 53 ; cf . Foose t>. Whitmore, 83 N. Y. 405. ' Heermans v. Robertson, 64 N. Y. 332 ; Henderson «. Henderson, 118 N. Y. 1, 11. PEEPETUITIES . BY MEANS OF TEUSTS. 149 value and without notice'), it makes therefore no difference whether the authorized trusts are raised in language at once inartificial and vague, if they may be deduced or inferred ; persons dealing with the trust estates must take notice of the legal effect of language, for the doctrine of notice is carried to its full extent by the Revised Statutes, and every sale or conveyance or other act of a trustee of an ex- press trust in lands in contravention of the trust is made void.' But it is to be observed that the courts do not favor trusts by implication.' Now, as formerly, no express trust* (or power in trust') may transcend the rule against perpetuities. A perpetuity exists only when the absolute power of alienation is sus- pended. The Revised Statutes define the suspension of the power of alienation as arising, " when there are no per- sons in being by whom an absolute fee in possession can be conveyed," ° and limit the period during which it is per- mitted to suspend such power to not more than two lives in being at the creation of the estate,' except in a single case already mentioned. ° These two lives need not be con- nected with the estate." A trust to receive the rents and profits of lands and apply them to the use of a person gen- erally, or a trust to accumulate rents and profits generally for the benefit of one or more minors, renders the estate inalienable ;'° but the mere creation of a trust in real estate does not, ipso facto, suspend the power of alienation ; it is only suspended where a sale by the trustee during the trust 1 1 R. S. 730, sec. 64 ; 3 R. 8. 137, sec. 3. ' 1 R. S. 730, sec. 65 ; amended by c. 275, Laws of 1883, c. 36, Laws of 1884. But ionS, fide purchasers are, however, relieved from seeing to the application of proceeds of trust property. 1 R. S. 780, sec. 66. ^Foose V. Whitmore, 83 N. T. 405; Henderson v. Henderson, 118 N. Y. 1,11. * Craig 9. Hone, 2 Edw. Ch. 554, 566 ; Tucker v. Tucker, 5 N. T. 408, 417. = Everitt ®. Everitt, 39 N. Y. 39, 78 ; Belmont v. O'Brien, 12 N. Y. 894, 403 ; 1 R. S. 737, sections 138, 139. « 1 R. S. 733, sec. 14 ; mpra, pp. 113, 114. ' 1 R. 8. 738, sec. 15. 8 Supra, p. 114 ; 1 R. S. 733, sec. 16. 9 Crooke ». County of Kings, 97 N. Y. 431, 486. '» Radley v. Kuhn, 97 N. Y. 36, 31. 150 EEFOEMS CONTEMPLATED BT EEVISIOST. term would be in contravention of the trust.' A trust for the benefit of persons not in being when the trust estate is created does not, however, per se, contravene the rule against perpetuities," although successive life estates in lands must be limited to persons in being at the creation thereof.' The subject of perpetuities belongs to an inde- pendent treatise, and will not be pursued farther. In concluding our brief reading on the Eevised Statutes relating to Uses and Trusts,* it may be repeated that the arti- cle was designed to effect the following reforms : The aboli- tion of formal or passive trusts, and to that extent the fulfil- ment of the intention of the framers of the Statute of Uses ; the restriction of the cases where trustees took the legal title to a few definite and well-known trust purposes ; the abolition of secret and resulting trusts in favor of persons knowingly paying the consideration ; and, lastly, to cause the title to land to devolve in the greatest possible number of instances on heirs at law and according to the ordinary rule of descents. The article on powers was the comple- ment of this design, and its purport will be next briefly noticed. ' Robert s. Coming, 89 N. Y. 225. '' Gilman ». Reddington, 24 N. Y. 9, 14 ; Crooke v. County of Kings, 97 N. Y. 421, 439. s 1 R. 8. 728, sec. 17. * Lord Mansfield makes a very luminous distinction between uses and trusts after the Statute of Uses (37 Hen. VIII., c. 10), and one which is still relevant to-day. Burgess v. Wheate, 1 Eden, at p. 216. CHAPTER VIII. POWERS tJNDEE THE REVISED STATUTES. A POWER of disposition is one of the main attributes of property in land. Ownership of personal property included, according to the Roman lawyers, jus disponendi, utendi, fruendi et abiitendi. While the ownership of real prop- erty involves a less complete dominion than that just in- dicated, it does include ^w* disponendi. Jus disponendi is said to imply ^o^es^ffl* disponendi and potestas dandi, and out of this distinction arise what we know as " powers" in the law of real property. The common law long since classified or subjected to scientific arrangement the lawful exercise of that delegated and qualified dominion over estates in lands, which we thus know as " powers." The " powers" referred to in the Re- vised Statutes relating to lands, like those of the common law, are derived out of the estate of the grantor or donor of the power, and are, as formerly, susceptible of one great and general classification : (1) Powers of appointment ' and (2) powers of revocation." The former embrace every species which raise new uses ; the latter aU those which supersede or displace pre-existing uses. It will thus be perceived that in one aspect, but only in the more general one, the powers of the Revised Statutes resemble the powers of the former law.' Yet the differences between them are quite as marked as their resemblances. The reviser's clas- sification, however, takes no note of such a general division as that just mentioned here. Powers prior to the Revised Statutes were either common law authorities, declarations or directions operating only in the conscience of the persons in whom the legal interest ' Read v. ■Williams, 125 N. Y. 560, 569. See execution of a power of ap- pointment, Eane v. Astor's Ex'rs, 9 N. T. at p. 121. » 1 R. S. 733, sec. 86 ; Belmont s. O'Brien, 12 N. T. 394, 404. » Read v. Williams, 125 N. T. at p. 569. 152 POWEES AT COMMON LAW. was vested, or declarations or directions deriving their effect from the Statute of Uses. A power given by a wUl or by an act of Parliament to sell an estate is cited as an instance of a common law authority ; so is a power of attorney.' A power to dispose of an estate where the legal interest was vested in another was of the second kind. Powers deriving their effect from the Statute of Uses were those known to com- mon lawyers as appendant or appurtenant, collateral or in gross, or simply collateral. The learning on powers deriv- ing their effect from the Statute of Uses called for the exer- cise of the very highest order of professional ability, as it was most involved : in New York at the time of the great revision of the laws of the State, such powers were almost entirely unknown in practice.' The revisers, there- fore, dealt very freely with the entire subject in the article on Powers.' The English cases are consequently, as a rule, now unsafe guides to this branch of the law of real prop- erty in New York, and the practitioner will find his great- est safety in a reliance upon the doctrines of our own courts applicable to the Revised Statutes concerning powers. The very terminology of this branch of real property learn- ing came in with this revision. Powers deriving their effect from the Statute of Uses were eradicated and abolished by the Revised Statutes,' and thenceforth the only powers connected with real estate have been those enumerated in the article on Powers, which alone governs not only their creation but their construction and execution.' This article was intended by the revisers to be the Alpha and Omega of the entire future law of powers related to estates in lands. Powers of attorney to convey lands in the name and for the benefit of the owner were excepted from the operation of this article of the Re- ' Sugden on Powers, I., 1 ; Wadhams v. Amer. Home Miss. Society, 13 N. Y. 415, 433. ' Statement of revisers' note to article on Powers. ' Art. III., 1 R. S, 731. The revisers' note on this article Is very explan- atory of the design and extent of the reforms contemplated. * 1 R. S. 733, sec. 73 ; Coster v. Lorillard, 14 Wend. 265, 814 ; Hutton v. Benkard, 93 N. Y. 395, 304. ' Root V. Stuyvesaut, 18 Weiid. at p. 271 ; Jennings v. Conboy, 73 K. Y. 230, 333 ; Cutting v. Cutting, 86 N. Y. 533, 530, 537 ; Delaney v. McCormack, 88 N. Y. 174, 180. 153 vised Statutes.' Such, instruments, being mere creations of common agencies, seemed to be subject to the ordinary law and to require no particular legislation to conform them to proper rules. The revisers defined a power as "an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserv- ing such power, might himself lawfully perform." " For- merly text writers did not concur in their definition of a power.' This statutory definition is sufficiently precise, but would seem to define also an express trust of lands,* and, indeed, it has been said " that an express trust includes a power and more," ° meaning, of course, by this expression a revised "power." A "power in trust" is, as its name designates, now often a trust, but one where the legal title is not by direction of the statute to be in the grantee of the power." This class of powers has acquired a new significance under the Revised Statutes. But while a power, as defined by the Revised Statutes, is like a trust of lands, in that it is an authority to do some act in relation to lands, the reviser's novel classification of powers into general or special, and beneficial or in trust,' makes it evident that beneficial powers sometimes offer a close analogy to the former powers appendant, in gross, or simply collateral, deriving their effect from the Statute of Uses.' As regards certain branches of the new law of powers, the old law occasionally offers some examples for professional consideration.* At least it is true that with- 1 1 R. S. 738, sec. 134. ' 1 B. S. 733, sec. 74. Like all other confidences, It cannot ordinarily be delegated. Sugden on Powers, I., 314. Mayor etc. v. Stuyvesant, 17 N. Y. 34, 43 ; cf. Crooke v. County of Kings, 97 N. Y. 421. ' Wharton's Conveyancing, 419 ; Crabb's Law of Real Property, 1959. « 1 R. S. 738, sec. 55. 5 Selden v. Vermllya, 8 N. Y. 535, 536. ' Supra, 143 ; infra, 157. ' 1 R. S. 732, sec. 76. ' " A power was never imperative," Wilmot's Opinions, 38 ; 3 Sugden on Powers, 158 ; Towler v. Towler, 143 N. T . 371, 376. 9 Allen V. De Witt, 8 N. Y. 276, 378 ; Barber v. Cary, 11 N. Y. 397, 403 ; Belmont v. O'Brien, 13 K. Y. 394, 404 ; Mayor, etc.. New York v. Stuyvesant, 17 N. Y. 34, 43 ; Jennings v. Conboy, 78 N. Y. 330, 333. 154 STATUTOET CLASSITIOATION. out the influences of the old law, the new law would have taken an entirely different form ; thus, much as we may desire to do so, we cannot break abruptly away from the former law on this abstruse subject : but the nicest discrim- ination is still called for in regard to its application. A power is, by the Revised Statutes, general where it authorizes the grantee of the power to alienate a fee sim- ple to any alienee whatever ;' special in all other cases." Beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution.' In trust either when the disposition which it authorizes ex- cludes from its enjoyment the grantee of the power * or in- cludes other persons.' A power in trust may again be either general 'or special.' Thus, powers must always be either beneiicial or trust powers ° — that is to say, they must belong on one side or the other of this most general divi- sion. In one point of view the new powers, as thus classi- fied by the Revised Statutes, are the same as the former powers, deriving their authority from the Statute of Uses ; they are cut out, as it were, of a fee — for a fee embraces all powers.' A power in trust is said to be only an authority to limit a use ;'° and this is no doubt correct, but the statu- tory definition seems the better for present purposes, as it coincides with the language of the entire statute. The article on Powers is very far from defining all the ' 1 R. S. 732, sec. 77 ; Crooke v. County of Kings, 97 N. Y. 431 ; Wright v. Tallmadge, 15 N. T. 307 ; Coleman v. Beach, 97 N. Y. 545, 558. " 1 R. S. 733, sec. 78 ; Delaney v. McCormack, 88 N. Y. 174, 181. » 1 R. S. 782, sec. 79 ; Barber v. Cary, 11 N. Y. 397, 402 ; Wright v. Tall- madge, 15 N. Y. 307 ; Sweeney v. Warren, 137 N. Y. 426, 434 ; Cutting v. Cutting, 86 N. Y. 532. * 1 R. S. 734, sections 94 and 95 ; Selden v. Vermilya, 3 N. Y. 525, 536 ; Belmont v. O'Brien, 12 N. Y. 394, 403 ; Downing v. Marshall, 23 N. Y.' 366. ' Smith V. Bowen, 35 N. Y. 83, 89. « 1 R. S. 734, sec. 94 ; Wright v. Methodist Epis. Church, 1 Hoffman, Ch. 201 ; Delaney w. McCormack, 88.N. Y. 174 ; Russell v. Russell, 86 N. Y. 581 ; Eannier v. Rogers, 42 N. Y. 531. ' 1 R. S. 734, sec. 95 ; Smith v. Bowen, 35 N. Y. 83, 89 ; Cutting v. Cut- ting, 86 N. Y. 533, 536. 8 Jennings u. Conboy, 73 N. Y. 230 ; Cutting «. Cutting, 86 N. Y. 523, 532. 9 Hetzel ». Barber, 69 N. Y. 1, 7. '» Farmers' Loan and Trust Co. v. Carroll, 5 Barb. 613, 652, 653. ABSOLUTE POWER OF DISPOSITION. 155 purposes for which a power may be created,' nor could it denote them without prescribing all the uses and purposes to which property may lawfully be dedicated or trans- mitted. Having defined powers generally, the Revised Statutes next proceed to recognize by a series of sections, that an absolute power of disposition over lands ought in most cases to be treated as the highest form of property, and carry a fee to the grantee of such a plenary beneficial power." When such a power over lands is granted it may be vested in two classes of persons — i.e., those having a par- ticular estate limited to them for life or years in such lands, and those not having such an estate. In either case thus provided for, the statute directs that the grant of the power shall carry a fee to its grantee in respect of creditors and purchasers ; but as against all others, such transmutation is subject to any future estates limited after the estate or interest of the grantee. ° These sections received the nicest consideration in the leading case of Cutting «. Cutting, where it was held that the key to the construction of the article on Powers was to be found in that article alone, and that the common law was no longer even applicable in the judicial construction of such article. It was also held in this case that the grant of a power to the beneficiary of a trust estate to appoint generally by last will did not confer on him the "absolute power of disposition" vdthin the meaning of the section in question, so as to subject the es- tate after his death to a judgment against him, as it would undoubtedly have done by the law before the Revised Stat- utes. We have also in this case a liberal and valuable construction of the statute relative to beneficial powers and of the ninety -second section of the article on Powers, which provides that, no beneficial power, general or special, other than such as are already enumerated, shall be valid.' ' Read v. ■Williams, 135 N. Y. 560, 569. » Freeborn v. Wagner^ 3 Abb. Ct. App. Decis. 175, 183 ; Hume «. Randall, 141 N. Y. 499. This is so even as to executors, Kinnier v. Rogers, 43 N. Y. 531, 534. s 1 R. 8. 733, sections 81, 83, 83, 84, 85. M R. 8. 733. sec. 93. 156 BBNEriCIAL POWEE. The final opinion in Cutting «. Cutting is likely, from its importance, to prove a rule of property in this State. WhUe a plenary power of disposition often carries a fee, it is a rule of construction that an estate in fee, created by a will, is not cut down or limited by a subsequent clause {e.g., a grant of a particular power of disposition, which would not in itself carry a fee to the donee) unless it is as clear and decisive as the language of the devise itself.' A beneficial power, or one where no person other than the grantee has, by the terms of its creation, any interest in its execution," is what a power, as contradistinguished from a power in the nature of a trust, was before the Revised Statutes. Its execution is never imperative ' except in the following case, and then by force of the statute and a judg- ment of the court : Every special and beneficial power is liable, in equity, to the claims of creditors, in the same man- ner as other interests that cannot be reached by an execu- tion at law, and the execution of the power may be de- creed for the benefit of creditors entitled.' Before this section a general power of disposition could not be reached by creditors except in cases where it was voluntarily exe- cuted ; then the property appointed formed part of the debtor's assets, so as to subject it to the demands of cred- itors in preference to appointees.' Such a power now passes to the assignees of insolvents.' The reservation by a grantor of an absolute power of revo- • cation makes him the legal owner of the estate as to cred- itors ;' but the reservation of such a power, as is usual in an ante-nuptial settlement, in the contingency of the failure of the contemplated marriage, is not that " absolute power of revocation" contemplated by Section 86, so as to prefer creditors of the settler or grantor to the prospective spouses. ' Byrnes v. Stllwell, 103 N. Y. 453. « 1 R. S. 782, sec. 79. ' Sugden on Powers, I., 158 ; Wilmot's " Opinions," 23. * 1 R. S. 734, sec. 93, and see the revisers' note to the article on Powers. ° Sugden on Powers, II., 27, and brief of counsel for plaintiff in Cutting v. Cutting, 86 N. T. at p. 523. = 1 R. S. 735, sec. 104. ' 1 R. S. 733, sec. 86 ; cf. sec. 105 ; Towler v. Towler, 142 N. Y. 371. POWERS IN TRUST. 157 Some of tlie statutory " powers in trust" were former active trusts ; ' others were powers in the nature of trusts." By the provisions of the article of the Kevised Statutes on Uses and Trusts, the grantee of a power in trust does not, ipso facto, take the legal title to the lands, which vest ac- cording to legal rules, but subject to the execution of the trust as a power.' As the execution of such trust powers, as of trusts, remains imperative unless its execution is made to depend on the will of the grantee,* and as, by the statute itself, trust powers are governed by many cognate rules re- lating to trusts in lands, ° their main distinction from trusts may be said to be the devolution of the legal title, which is wholly unaffected by the power in trust/ In some cases, however, a trustee of express trusts, having the legal title, may be also a grantee of powers in trust.' The Revised Statutes left the old law affecting the cases where executors with a power of sale took the legal estate not materially changed by the Revised Statutes.' The " fifty -fifth section" of the Article on Trusts authorizes an express trust («.e., a trust where the fee passes) "to sell, mortgage, or lease lands for the benefit of legatees or for the purpose of satisfying any charge thereon." ° So, since the Revised Statutes, a devise, with power of sale or mort- gage to executors, may or may not carry the fee or legal title to them. '° If not, then the power of sale is usually a ' 1 R. S. 734, sections 94, 95 ; mpra, p. 143. » Sugden on Powers, II., 158, 171. » 1 R. S. 729, sections 56, 58, 59 ; Wainwriglit «. Low, 57 Hun, 386 ; Het- zel v. Barber, 69 N. Y. 1, 7 ; of. Belmont ». O'Brien, 13 N. Y. 394, 404. ■"IKS. 734, sections 96, 97 ; Allen ». DeWitt, 3 N. Y. 376, 380 ; Moncrief ■». Ross, 50 N. Y. 431, 436 ; Delaney ». McCormack, 88 N. Y. 174 ; Coleman «. Beach, 97 N. Y. 545 ; of. Towler d. Towler, 143 N. Y. 371. « 1 R. 8. 734, sec. 96 ; Tilden v. Green, 130 N. Y. 29 ; Read b. Williams, 135 N. Y. 560. » Moncrief ®. Ross, 50 N. Y. 431, 435 ; Hetzel «. Barber, 69 N. Y. 1, 7. ' Belmont e. O'Brien, 12 N. Y. 394, 404 ; cf. Crooke v. County of Kings, 97 N. Y. 431, 446. « 1 R. S. 739, sec. 56 ; Moncrief ». Ross, 50 N. Y. 431, 435 ; Sugden on Powers, I., 128. ' Supra, p. 143. "> 1 R. S. 729, sec. 56 ; Cooke v. Piatt, 98 N. Y. 35 ; Kinnier t). Rogers. 42 N. Y. 531, 534 ; Tucker «. Tucker. 5 N. Y. 408. 158 DEVOLUTION OF POWERS IN TBtTST. power in trust,' and as such may (if its exercise is impera- tive and not personal) pass upon the death of a sole execu- tor to an administrator with the will annexed/ Wot only are trust powers as imperative as are active trusts/ but their creation is also subject to all the allied regulations and principles of equity.* Ko perpetuity can be created by means of a power." For the same reason no indefinite or illegal purpose, or act contrary to good morals or policy, can be authorized by a trust power.' In short, the ends of a trust power must be such as equity sanctions, and not inofiicious, or it will be nugatory.' When a revised power in trust is not imperative, but de- pends wholly on the will of the grantee, its resemblance to trusts ceases.' Its execution cannot be enforced in equity ;° but the statute declares that a trust power is not the less imperative because the grantee has the right to select any and exclude others of the persons designated as the objects of the trust." The resemblance between trusts and most trust powers was sufiicient to cause the revisers to provide for the devolution of a power in trust in the event of the death of the grantee," vesting it in the Court of Chancery (now the ' Kinnier v. Eogers, 43 N. T. 531, 534 ; Manice ». Manlce, 43 N. Y. 308, 364 ; Moncrief i>. Ross, 50 N. Y. 431, 435 ; Smith v. Bowen, 35 N. Y. 83, 89. » Mott V. Ackerman, 93 N. Y. 539 ; Greenland v. Waddell, 116 N. Y. 234, 240 ; cf . supra, p. 155, note 2. ' 1 R. S. 784, sec. 96, Smith v. Floyd, 140 N. Y. 337. * Smith V. Bowen, 35 N. Y. 88 ; Delaney «. McCormack, 88 N. Y. 174, 181 ; RusseU V. Russell, 36 N. Y. 581 ; Tilden ». Green, 130 2Sr. Y. 39. « Everitt V. Everitt, 39 N. Y. 39, 78 ; Belmont v. O'Brien, 13 N. Y. 394, 403 ; and see 1 R. S. 737, sections 128 and 129. « Tilden e. Green, 130 N. Y. 29, 54 ; Sweeney s. Warren, 137 N. Y. 436 ; Read «. "Williams, 135 N. Y. 560. 'Belmont ». O'Brien, 13 N. Y. at p. 403 ; Read ». Williams, 135 N. Y. 560, 569. 8 Towler e. Towler, 143 N. Y. 371, 376 ; Belmont ». O'Brien, 12 N. Y. 394, 403 ; Sugden on Powers, II., 158, 171. 9 Mayor, etc., of N. Y, v. Stuyvesant, 17 N. Y. 4, 43 ; Coleman v. Beach, 97 N. Y. 545, 558, 559. " 1 R. S. 734, sec. 97. " 1 R. S. 734, sections 100, 102 ; Greenland e. Waddell, 116 N. Y. 334, 343 ; Delaney «. McCormack, 88 N. Y. 174, 183. ILLUSORY APPOINTMENTS KEGULATED. 159 Supreme Court).' If the power be created by a will, and the testator omits to designate by whom the power is to be exercised, its execution devolves on the same court." These were wide departures from the former law on this subject. The resemblance of trust powers to trusts is further exem- plified in the law which subjects them to the same termina- tion, for when the purpose for which the trust power was given ceases, the power itself ceases," and such was always the law. A trust power expires by limitation, as do trusts.' Powers in trust" to dispose of, or to distribute to, or among, or between several persons, without further direc- tion as to share or amount, were regulated by statute so as to prevent " illusory appointments" and to settle a doubt- ful point of equity jurisdiction," by making equality of division under such powers imperative,' unless an absolute discretion upon this subject was given to the grantee of such powers.' Equity can decree the execution in whole or in part of a trust power for the benefit of creditors or of assignees of any person entitled as one of the objects of the trust, to com- pel its execution, when the interest of the objects of such trust is assignable.' But the court must have some positive trust to act on, and be invoked by a person having a definite interest in the execution of the power in trust, and not by a stranger." The revisers provided that a grantor in any conveyance might reserve to himself any power, beneficial or in trust, which he might lawfully grant to another." A grantor thus reserving is then termed by statute the " grantee of the pow- " Leggett v. Hunter, 19 N. Y. 445, 459 ; Cooke v. Piatt, 98 N. Y. 35, 39. ' 1 R. 8. 734, sec. 101 ; MeaWngs ®. Cromwell, 5 N. Y. 136, 139. » 1 R. 8. 734, sec. 103 ; 1 R. 8. 730, sec. 67 ; Manier v. Phelps, 15 Abb. K. C. 123, 137 ; Prentice «. Janssen, 79 N. Y. 478, 486 ; Harvey D.Brisbin, 50 Hun, 376 ; Hetzel v. Barber, 69 N. Y. 1. * Bruner «. Meigs, 64 N. Y. 606. " A power in trust has been called " a mere authority to limit a use ;'' Farm- ers' Loan and Trust Co. t. Carroll, 5 Barb. 613, 652-3. « 1 R. 8. 734, sec. 98. ' Butcher v. Butcher, 9 Ves. 882. « 1 R. 8. 734, sec. 99 ; cf. Read d. Williams, 125 N. Y. 560, 569. 1 R. 8. 785, sec. 103. " Read «. Williams, 125 N. Y. 560, 569. 1 R. 8. 735, sec. 105 ; Towler v. Towler, 142 N. Y. 371. 160 POWER OF EEVOCATION. er,'" so as to subject Ms reservation to tlie rules regulating other grants of powers. A power thus reserved is governed by all the appropriate provisions of the article on Powers." When a grantor reserves to himself for his own benefit an ab- solute power of revocation, he is, as to creditors and pur- chasers, the legal owner of the estate.' An absolute power of revocation is, one where, in the first instance, no other person besides the grantee has a standing to prevent its ex- ercise.' The distinction between a reservation of a power and a reservation of an estate is not always clear nnder the statute." A power may be granted by a suitable clause contained in a conveyance of some estate in the lands, to which the power relates, or by a devise contained in a last will or testament.' 'No person is capable in law of granting a power, who is not at the same time capable of aliening some interest in the lands to which the power relates.' These two sec- tions of the law relating to Powers are very explicit. The capacity of the donor or grantor admits of no refine- ments. He must have an interest or a legal estate in the lands affected. " These provisions were supplemented by others equally ex- plicit : " No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent, thereunto authorized by writing." ' This section expressly does not apply to a grant of a power by will," nor, it is said, prevent a deed to declare uses." ' 1 R. S. 738, sec. 135. ' 1 R. S. 785, sec. 105. ' IR. 8. 733, sec. 86. * Supra, p. 156. » Towler v. Towler, 143 N. Y. 371. « 1 R. S. 735, sec. 106 ; 1 R. S. 755, c. III. ; 2 R. S. 56. ' 1 R. S. 733, sec. 75 ; Dempsey v. Tylee, 3 Duer, 73 ; cf. Appendix No. II., infra. » Selden v. Vermilya, 3 N. Y. 525. » 2 R. 8. 134, sec. 6. '" 2 R. S. 135, sec. 7 ; amended in 1860, c. 322 ; of. Cook v. Barr, 44 N. Y 156, 160. " Eysaman v. Eysaman, 24 Hun, at p. 434. POWER, HOW OEEATBD. 161 " A power created by deed must be more formal than one created by wiU." ' But no set of words is requisite to create or reserve a power. This was so at common law," and it is d fortiori true since the Revised Statutes.' Yet as a power is an authority to create an estate in lands, or a charge thereon,* it is best that it should not be inartificially ex- pressed. The law of real property is always such that art in conveyancing is an economy in the end. Every well-drawn instrument fortifies the title. Powers demand unusual care, as to some extent they partake of the nature of other delegations or agencies, and are construed in like manner ' — at least where the equities of third persons do not supervene. The Revised Statutes do not, however, specify the pur- poses for which powers may be created ;' they would be too multiform, and such a narrow regulation of the exercise of the property right would be inexpedient. But certain limitations are self-evident in the case of all powers ; the purposes, as in aU agencies and trusts, must be lawful, not contra bonos mores, or opposed to public policy ; for example, a perpetuity cannot be created by means of a power.' " A power may be vested in any person capable in law of holding lands. It could not be executed by a person not capable of aliening lands" " (excepting, as the law then stood, by a married woman'). Formerly a power could with few exceptions be executed only by a person sui Juris ; therefore, as a rule a feme covert could not execute a power so as to aflfect her own interest, for by marrying she put herself under the power of her husband." The revisers pro- vided that a married woman, after her majority, might exe- cute a power without the concurrence of her husband, ' Jennings v. Conboy, 73 N. T. at p. 234. « Moor, 68. « Borland v. Dorland, 2 Barb. 63, 80 ; Hubbard v. Gilbert, 25 Hun, 596 ; Towler e. Towler, 143 N. Y. 371, 374. ■i 1 R. S. 732, sec. 74. ' Sugden on Powers, I., 213 ; Newton v. Bronson, 13 N. Y. 587. « Siqn-a, p. 153. ' Supra, p. 149. « 1 R. S. 735, sec. 109. 9 1 R. S. 735, sec. 110 ; supra, p. 137 ; Amer. Home Miss. Society v. Wad- hams, 10 Barb. 597, 604. " Crabb's Law of Real Property, p. 688 et seq. 162 EXECUTIOIT OF roWEJlS. unless by the terms of the grant this was prohibited." The revisers thus intended to remove the disability of coverture,' and to permit /eme coverts to act as sole, unless the grantor restrained her from so doing. The effect of the acts relat- ing to married women, their status and property, belongs to a period so subsequent to that under consideration as to preclude discussion.' But as a general principle it may be said that the " Married Women's Property" acts do not affect the law of trusts or powers as laid down in the Revised Statutes. They may render such powers and trusts less fre- quent in practice, just as marriage settlements are less fre- quent now that married women's property is free from the legal control and the debts of their husbands ; but a trust for a married woman and the powers connected with the estate are still controlled by the Revised Statutes, and left substantially as before the "Married Women's" acts.' The Revised Statutes, however, required that if a married woman execute a power by grant it should not be valid as an execution unless she should acknowledge it on a private examination in the manner then prescribed for her execu- tion of deeds of conveyance.' A private examination is now rendered unnecessary by later legislation ' than that we are considering. The mode of executing a revised power is now regu- lated by the Revised Statutes : " Where a power is vested in several persons, all must unite in its execution ; but if previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors.'" At common law the same rule applied,' and ' I R. S. 732, 733, sections 80, 87 ; 1 R. S. 735, sections 109, 110 ; 1 R. S. 737, sec. 130. « "Wright v. Tallmadge, 15 N. T. 307 ; cf. "Wadhams v. Amer. Home Miss. Society, 12 N. Y. 415, 423 ; Leavitt n. Pell, 25 N. Y. 474. » C. 375, Laws of 1849 ; c. 576, Laws of 1853 ; c. 90, Laws of 1860 ; c. 173, Laws of 1862 ; c. 472, Laws of 1880 ; c. 537, Laws of 1887 ; mpra, p. 127, note 2. * Wlllard's " Real Estate," p. 256. » 1 R. 8. 736, sec. 117 ; 1 R. 8. 768, sections 9 and 10 ; cf . Albany Pire Ins. Co. v. Bay, 4 N. Y. 9, 36. » C. 249, Laws of 1879 ; amended c. 300, Laws of 1880. ' 1 R. S. 735, sec. 112 ; see old law as to executors, 1 R. L. 366. » Sinclair ». Jackson, 8 Cow. 543, 553. STATtTTOET DIJBEOTIONS. 163 where a power was given to three executors, or any of them, a sale by two held good." When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed, or certified in writing thereon. Other formalities are prescribed to meet this case.' " No power can be executed except by some in- strument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner." ° As at common law a power to be executed by deed might be effected by any conveyance good at common law, such as a feoffment,' lease and release," so now, when it is directed to be effected by deed, it can be effected only by an instrument good as a convey- ance under Chapter III., Part II., Revised Statutes.' When the power is directed to be effected by a will, the latter in- strument must be executed in conformity with that part of the Revised Statutes which relates to Wills.' When a power is confined to a disposition by grant it cannot be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power," and such was the law before the Revised Statutes.' When, however, a general power of disposition is given, it may be executed either by will or grant." Under the Revised Statutes directions by the grantor of a power concerning its execution are in some cases now to be modified or supplemented by statutory intendment: (1) Where the instrument, as directed, is inadequate by rules of law to pass an estate, then the grantee or donee of the power ' Townesend v. Walley, Moore, 341. '^ 1 R. S. 736, sec. 123 ; Barber v. Gary, 11 N. Y. 897 ; Kissam v. Dierkes, 49 N. Y. 603 ; of. Phillips v. Davies, 93 N. Y. 199. ' 1 R. S. 735, sec. 113 ; Barber v. Gary, 11 N. Y. 397. ■■ Doe V. Thorley, 10 East. 437. ' Tomlinson v. Dighton, 1 Peere Williams, 149. « Barber v. Gary. 11 N. Y. 397. ' 1 R. S. 736, sec. 115 ; 2 R. S. 56, sections 1 to 5, as amended by c. 783, Laws of 1867 ; 2 R. S. 60, sections 21, 23 ; 2 R. S. 63, sections 40 to 42 ; cf. Habergham v. Vincent, 3 Ves. 204. « 1 R. S. 736, sec. 116 ; Coleman v. Beach, 97 N. Y. 545, 556. 9 Reid V. Shergold, 10 Ves. 370 ; Doe v. Thorley, 10 East. 438. " Matter of Gardner, 140 N. Y. 123. 164 DEFECTIVE EXECUTION. may supplement the donor's direction by authority of the statute ;' (2) where superfluous formalities are prescribed by the donor or grantor, all beyond those sufficient in law to pass the estate are to be disregarded ;' and " where the con- ditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded on the execution of the power. " ' In all other cases the intentions of the grantor of a power as to the mode, time, and conditions of its execution must be observed, subject to the power of a Court of Equity to sup- ply a defective execution in certain cases provided for.* Formerly a defective execution would be relieved against in favor of a wife, children,' purchasers,' and creditors, and possibly in favor of a husband,' but not of a natural son.' The revisers expressly afford relief in the case of purchasers,' and where the execution of a power in trust shall be defec- tive in whole or in part in favor of the persons designated as the object of the trust." Whether the equitable jurisdic- tion of the court is confined at all by these sections of the statute may be regarded as doubtful. That it was some- what extended in the case of a trust power is quite clear. The statute declares that instruments in execution of a power are affected by fraud in the same manner as convey- ances by owners or trustees," which is equivalent to a clause saving existing jurisdictions. Rules declaratory and remedial affecting the execution of a power were also contained in the Revised Statutes. No disposition by virtue of a power is now void in law on the ground that it is more extensive than was authorized by the power ; but every estate or interest so created, so far as embraced by the terms of the power, is validated by the ' 1 R. S. 736, sec. 118. ^ IMd., sec. 119. « 1 R. S. 736, sec. 120 ; Kissam «. Dierkes, 49 N. T. 602. * 1 R. S. 736, sec. 121 ; see 1 R. S. 737, sections 131, 132. ' Hervey v. Hervey, 1 Atk. 661. « Coventry v. Coventry, Gilb. 160. ' Sergeson v. Sealey, 2 Atk. 412. " Bramhall v. Hall, 2 Eden. 220. » 1 R. S. 737, sec. 132. '« Ibid., sec. 131. " Ibid., sec. 125. PERPETUITIES. 165 Eevised Statutes." This was the common law rule, and it is now in the statutes." Every instrument executed by the grantee of a power, con- veying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, is to be deemed a valid execution of the power, although such power be not recited or referred to therein. This section does not change the rule that where one has an interest and a power and makes a deed the law will attribute it to the interest and not to the authority.* So lands embraced in a power to devise, pass by a will pur- porting to convey all the real property of the testator, un- less the intent that the will shall operate otherwise appear expressly or by necessary implication. ' !N'o distinction is made, in this respect, between a power of appointment and other powers.' A perpetuity by indirection would be an anomaly in any well-governed State. Perpetuities by means of a power, or for any longer period than that prescribed in the article on legal estates, are expressly prevented by the Revised Statutes.' The execution of powers always related back to the instrument creating the power ; yet before the Revised Statutes the appointee under the power did not take by relation from the time of the execution of the power. ° But the revisers provided that " the period during which the absolute right of alienation may be suspended by any instrument in execution of a power shall be com- puted, not from the date of such instrument, but from the time of the creation of the power," ' and they have supple- mented this section by the following provision : " No estate ' 1 B. S. 737, sec. 123. « Koot V. Stuyvesant, 18 Wend. 357, 274 ; Austin v. Oakes, 48 Hun, 493, 496. « 1 R. S. 737, sec. 124. " Mutual Life Ins. Co. ■». Shipman, 119 N. Y. 824. 5 1 R. S. 737, sec. 136. « Button V. Benkard, 93 N. Y. 395 ; Mott v. Ackerman, 92 N. Y. 539 ; N. Y. Life Ins. and T. Co. v. Livingston, 133 N. Y. 125. ' Supra, pp. 114, 161. * Jackson v. Davenport, 20 Johns. 537 ; see also Matter of Stewart, 131 N. Y. 274, 281. ' 1 R. S. 737, sec. 128. 166 POWERS IKEEVOCABLE. or interest can be given or limited to any person, by an in- strument in execution of a power which such person would not have been capable of taking under the instrument by which the power was granted." ' Powers of sale contained iu mortgages or other security vest in and may be executed by any person becoming en- titled to the security." The efifect of the reservation of an absolute power of revo- cation has been already noticed. ' By statute, " Every power, beneficial or in trust, is irrevocable unless an authority to revoke it is granted or reserved in the instrument creating the powers." * As every power is made a lien or charge on real estate as agaiast creditors and bona fide purchasers only from the time the instrument containing the power is duly recorded, ' the necessity of making a presumption of the irrevocability of the power absolute under all circumstances ' is apparent. But as against all other persons besides creditors and bona fide purchasers, a power is a lien from the time the instru- ment in which it is contained takes efEect.' Thus powers are conformed to the rules relative to other instruments creating estates in lands both inter partes and in so far as the recording acts are concerned." The leading features of the statutory law of powers, which, as we have seen, superseded in New York an ideal system or one in posse rather than one actually in esse,' have now been adverted to at greater length than originally intended. But the sections of the article on Powers are so correlated as to make any separate mention of particular sections very untrustworthy. There are, however, many points in the former law of powers not touched on in the ' 1 R. S. 737, sec. 129 ; Salmon ». Stuyvesant, 16 Wend. 331 ; Root v. Stuy- vesant, 18 Wend. 257 ; Dempaey b. Tylee, 3 Duer, 73, 97. i* 1 R. S. 737, sec. 183 ; Waterman v. Webster, 108 N. Y. 157, 164. ' Supra, p. 160. * 1 R. S. 735, sec. 108 ; Marvin «. Smith, 46 N. Y. 571, 577. » IMd., sec. 107. « lUd., sec. 108. ' Ihid., sec. 107. « See also 1 R. S. 736, sec. 114 ; 1 R. S. 755, Ch. III. » Supra, p. 152. EXTINCTION AND SUSPENSION OF POWERS. 167 Revised Statutes, e.g., in what manner the powers permitted by the revisers to exist may be extinguished, released, or suspended ; besides many other questions relative to the execution of such powers." Naturally these will be decided by the analogies and the principles of the former law." ' Mutual Life Ins. Co. «. Shipman, 119 N. Y. 324. ' Root ». Stuyvesant, 18 Wend, at p. 274 ; mpra, p. 153. CHAPTER IX. OBSERVATIONS ON CONVEYANCING UNDER THE REVISED STATUTES. The Revised Statutes, in the article on "Alienation by Deed,'" instituted important changes in the pre-exist- ing law. Fines and common recoveries," and the mode of conveying lands by feoffment with livery of seisin, were abolished.' Chancellor Kent thinks that this mode of con- veyance was never used in practice in this country, though lawful. He states that our conveyances have been either under the Statute of Uses or short deeds of conveyance, in the nature of the ancient feoffments, and made effectual on being duly recorded without the ceremony of livery.' But it is to be observed that many ancient deeds in New York, in tenor very like the primitive charter accompanying a feoffment, bear an endorsement of livery of seisin in the presence of witnesses.' The Duke's Laws in 1664 required a deed to be written.' Prior to the year 1788 and Jones and Varick' s revision of those English statutes adopted and usually acted on in New York,' the common mode of conveyance in the State was by " lease and release." After the repeal of the English statutes, not incorporated in that revision, a deed of bargain and sale, also operating under the Statute of Uses,' was commonly employed.' The Revised Statutes designate both these ' Art. IV., Tit. II., Ch. I., Part II.; 1 R. S. 738. » 2 R. S. 343, sec. 24. » 1 R. S. 738, sec. 136 ; cf. Rogers v. Eagle Fire Co., 9 Wend. 611, 636. • 4 Kent's Com., 489 ; cf. Sparrow v. Kingman, 1 N. Y. at p. 250. • There are several at Albany In the pubjlc offices. • Supra, p. 16. ' Supra, pp. 78, 79. « 2 J. & V. 68 ; 1 R. L. 72 ; Rogers i>. Eagle Pire Co., 9 Wend. 611 ; 4 Kent's Com. 494-5,; The Long Island R. R. Co. v. Conklln, 29 N. T. 572, 584. 9 4 Kent's Com., 495. DEED OP GEANT. 169 forms of conveyance "grants,"' and then systematically apply to them ' tlie leading rules relating to tlie ceremonial part of alienations by deed.' By express limitation all the rules of law then existing in respect to the delivery of deeds were made to apply to all grants in fee of a freehold ; the grants, like deeds, taking effect only from delivery/ At common law the term " deed" did not, ex vi termini, import a deed of real estate.* It applied to any charter or writing purporting to be a conveyance of any kind of prop- erty. The revisers no doubt intended, by their application to grants of lands of the legal principles relating to deeds, to pro- duce a further uniformity between conveyances inter vivos of real estates and conveyances of personal property. They desired not only to abolish a single type of common law conveyance, but to restrict as much as was possible the shift- ing of titles by artificial transmutation of uses under the statutes relating to the vesting of uses in possession.' Much emphasis was therefore given to the sections relative to the delivery of deeds, which is now consequently a greater feature than formerly in the devolution, inter vivos, of titles to lands.' At common law a deed did not take effect from delivery, but from the livery of seisin.' Nothing expressed the revisers' conceptions of a proper instrument for the future conveyance of lands so well as the term " grant," which Chancellor Kent nevertheless criticised on account of its long technical association with a deed con- fined to incorporeal hereditaments, incapable of livery." ' 1 R. S. 739, sec. 143 ; Bucklino. Bucklin, 1 Abb. Ct. Appeal Decis. 243, 347. '' At common law a grant applied either to a royal charter or to a convey- ance of an incorporeal hereditament, but to them only. ' Art. IV., Tit. II., Ch. I., Part II., R. S. M R. S. 738, sec. 138. <■ Blewitt v. Boorum, 142 N. Y. 357, 360. « 1 R. S. 737, sec. 47 ; 1 R. S. 738, sec. 49 ; 1 R. L., p. 72, sections 1, 2 and 3. ■■ 1 R. S. 738, sec. 138 ; People «. Bostwick, 32 N. Y. 445 ; Chauncey «. Arnold, 24 N. Y. 330, 335 ; Mitchell v. Bartlett, 51 N. Y. 447 ; but delivery may be made to another for the use of the grantee, Diefendorf b. Diefendorf , 132 N. Y. 100 ; Roseau v. Bleau, 131 N. Y. 177 ; but not conditionally to a grantee, Blewitt v. Boorum, 142 N. Y. 357, 363. 8 Challis, 83. 9 3 Bla. Com. 317 ; 4 Kent's Com., 490. 170 OLD POEMS RETAINED. But as the revisers saw fit expressly to abolisli the primi- tive conveyance by feoffment and livery of seisin, their adoption of the term "grant," which applied to convey- ances of property incapable of livery, seemed particularly appropriate.' Having gotten rid of the principles of the common law relative to the mode of conveyance by feoffment and livery of seisin, and having abolished all uses, except those saved in the article on Uses and Trusts, the revisers proceeded to legalize conveyances operating by means of the primitive deed or charter," which was to be self-acting, independently of the Statute of Uses and livery of seisin. Thus the revis- ers came back to the general principles of " contract" and to their " essential nature of property," ' eliminating purely feudal notions of the transfer of lands. But as the deeds then in common use, "lease and release," "bargain and sale," were not essentially opposed to the revisers' concep- tions of grants, their employment was tolerated by the statute,* but intended to be made effectual for the future on the basis of other written contracts ° rather than by those doctrines which had relation to livery of seisin or to the vesting of uses in possession under the Statute of Uses.' It was this express mention of those old conveyances then in common use which has since possibly exaggerated the importance in conveyancing of the sections in the article on Uses and Trusts' now substituted for the former Statute of Uses.' The other statutory requirements of an effectual or complete grant in fee involved, as before, a writing' or charter, sealed " and its execution and delivery attested, in ' Sparrow v. Eingman, 1 N. T. at p. 251. In England by 8 and 9 Victoria, c. 106, sec. 2, all corporeal tenements and hereditaments now lie in grant. « 1 R. S. 738, sections 137, 138. » Reviser's note to sec. 7 of Art. I. of Tit. II. of Ch. I., Part II., R. S. M R. S. 789, sec. 143. ' 1 R. S. 738, sec. 138. ' Cf . the opinion in Eysaman v. Eysaman, 24 Hun, 480 ; and The Long Island R. R. Co. v. Conklin, 29 N. Y. 572, 584. ' Sections 4T, 49, Art. II., Tit. II., Ch. I., Part II., R. S. ; 1 R. S. 727, 728. » 1 R. L. 73 ; 2 J. & V. 68. 9 1 R. L. of 1813, p. 78 ; 1 R. S. 738, sec. 137 ; 2 R. S. 184, sections 6 and 7 ; Leonard v. Clough, 133 N. T. 392, 297. '» 1 R. 8. 788, sec. 187. EEQUISITE8 OF A "gEANT." 171 the presence of at least one witness, ' or else duly a«knowl- edged before a public officer.' The revisers thus practi- cally left the former law relating to parties and the rit- ual part of a conveyance of lands in force, and such a construction is commonly accorded to this article ' of the Revised Statutes by both courts* and text writers of authority." The subscription of a grant in fee was, how- ever, made indispensable by the Revised Statutes, although at common law even signing was unnecessary, a sealing being quite sufficient. ° The Statute of Frauds, 29 Car. II., c. 3, had first made signing essential to effectuate estates in fee, ' and this act of signing our revisers now turned into a ^bscription. Attestations or acknowledgments were not made necessary to the validity of a deed inter partes, but only to effectuate it as to subsequent purchasers and lienors under the recording acts.' Since the year 1892 actual seal- ing is no longer necessary ; the word " seal" or the letters " L. S." being made its equivalent when placed opposite the signature." This statute does not, however, obviate the continued necessity of a seal or its equivalent to pass an es- tate of freehold." It simply defines a seal. Now, a seal being made only prima facie evidence of consideration," the necessity of its preservation on instruments of this char- acter seems an unnecessary deference to tradition. It was evidently intended as a compromise with esoteric factors and uncertain doctrines never very well founded in the com- mon law." That a consideration should be expressed in a deed was not, at common law, essential to its validity, and the Re- vised Statutes have not altered this principle." But a " bar- ■ 1 R. S. 738, sec. 137. » 1 R. S. 755, 756 ; 1 R. S. 738, sec. 137. 3 Art. IV., Tit II., Ch. I., Part II. * Cunningham v. Freeborn, 11 Wend. 240, 248. ' 4 Kent's Com., c. Ixvii. ; Willard on Real Estate, etc., p. 373, et seq. « Vy^right V. Wakeford, 17 Ves. 459. ' 3 J. & V. 88 ; 1 R. L. 78, sec. ix. 8 "Wood V. Chapin, 13 N. T. 509 ; Strough v. Wilder, 119 N. Y. 530, 535. » C. 677, sec. 13, Laws of 1893, Vol. 2. '" Cf. People ex rel Norton v. Gillis, 24 Wend. 201. " Infra, p. 172. '^ See Holmes' " The Common Law," pp. 253-371, 384-287. " Cunningham v. Freeborn, 11 Wend. 340, 348. 172 NO FOKM PEESCKIBED. gain and sale" without consideration, as also a feofiEment without livery of seisin, were always void at the com- mon law ;' they were simply inchoate or imperfect acts. When the Eevised Statutes turned a " bargain and sale" and a "lease and release" into "grants," they subjected these instruments to the ordinary rules concerning deeds and estoppels, and a like construction seems to have since been accorded to them." While grants may in law require a consideration to support them in certain aspects, yet it need not now be expressed.' By a special pro- vision the seal has become only '■'■prima facie evidence of consideration which may be rebutted in the same man- ner and to the same extent as if such instrument were not sealed."' Thus, a deed of gift under seal is none the less a deed of gift because a nominal consideration is expressed therein.' No form of words is now necessary to pass an estate in fee ; ' any writing, where the intent so to do is obvious, will, if it be executed with the formalities indicated above, suffice for a grant,' although in common practice among convey- ancers very artificial forms, covenants, powers, and reserva- tions are still preserved by reason of their settled construc- tion. There is certainly good reason for such retention in the case of powers, covenants, and reservations, and in com- plicated settlements and conveyances unnecessary legal con- troversies are thereby sometimes avoided. In no such case do the courts reflect on the retention of old forms, while they often animadvert on the more inartificial instruments before ' Schott ■0. Burton, 13 Barb. 173 ; Corwin v. Corwin, 6 N. Y. 343 ; Wood o. Chapin, 13 N. Y. 509, 517. " Cunningham v. Freeborn, 11 Wend. 248 ; Sparrow v. Kingman, 1 N. Y. 242, 250. 3 Morris u. Ward, 36 N. Y. 587, 598 ; Loeschigk u. Hatfield, 51 N. Y. 660 ; Ring V. Steele, 3 Keyes, 450 ; Spalding v. Hallenbeck, 35 N. Y. 204, 206 ; Ten Eyck u. WMtbeck, 135 N. Y. 40 ; s. c. 29 Abb. N. C. 314, and note, p. 325 ; cf. Wood «. Chapin, 13 N. Y. 509, 517. < 2 R. S. 406, sec. 77. ' Morris «. Ward, 36 N. Y. 587. « 1 R. 8. 748, sections 1 and 2 ; Long Island R. R. Co. v. Conklin, 29 N. Y. 572 ; Kirtz ■o. Peck, 113 N. Y. 222, 229 ; Campbell u. Morgan, 22 N. Y. Supp. 1001. ' This was formerly the rule in case of wills ; Jackson v. Delancey, 11 Johns. 365 ; afE'd, 13 id. 536 ; Pond v. Bergh, 10 Pai. 140, 152. "WHAT PASSES BT GKANT. 173 them for construction. By a recent act, having reference to the expense of recording in certain public offices long forms of deeds, shortened forms (mere algebraic equivalents of cer- tain old covenants) are permitted to be substituted for the purposes of record, with the same force and effect as the long form.' The real covenant in such cases is obviously in the statute itself by inclusion, and no longer in the deed. Slight penalties are prescribed for recording the long form of deeds in Kings and New York counties." But nothing passes by a grant except what is described in it, whatever the intention of the parties may have been,' al- though the revisers have carefully provided that in the con- struction of such instruments (both grants and wills*) it shall be the duty of courts of justice to carry into effect the intent of the parties so far as the same can be collected from the whole instrument and is consistent with the rules of law.' This last was always the rule concerning contracts," and it seemed very proper to the revisers to place it in the statute, now that most grants of lands are intended to be much on the same footing as other contracts of sale and no longer mere investitures by which, in legal theory, a new tenant was substituted in some feudal or semi-feudal subordi- nation to a lord paramount. That the rule itself made any change in the judicial construction of deeds of conveyance can hardly be pretended ;' it certainly did emphasize the ideas indicated. That the term heirs, or other words, of inheritance are no longer necessary to pass a fee in a deed, has been already mentioned.' The same section provides that every grant or devise thereafter to be executed shall pass all the estate or interest of the grantor, unless the intent to pass a less es- tate or interest shall appear, by express terms, or be neces- sarily implied in the terms of such grant." Formerly the ' C. 475, Laws of 1890. ' lUd. 8 Coleman v. Manhattan Beach Im. Co., 94 K. Y. 229, 232. * "Williams v. Williams, 8 N. Y. 524, 539. ■i 1 E. S. 748, sec. 2 ; Bennett v. Culver, 97 N. Y. 250, 256. « French v. Cahart, 1 N. Y. 96, 102. ' Sheppard's " Touchstone," 86 ; Elphinstone's "Rules for the Interpreta- tion of Deeds," 86 ; Bridger v. Pierson, 45 N. Y. 601, 604. « Supra, p. 128 ; 1 R. S. 748, sec. 1. " 1 R. S. 748, sec. 1. 174 DEED POLL. fee did not pass by deed without the addition of the word " heirs ;" ' it heing prcBsv/mpUo jv^is et de jure that a life estate was intended. Now, this presumption, derived from the feudal law, is quite taken away by the statute, and the presumption is the other way. Other rules of construction will be noticed at a subsequent place." By a late Act a husband may now convey directly to his wife without the intervention of a third person, and a wife to her husband," the unity of their persons, in contemplation of the law of property, being largely abrogated." But by a conveyance to a husband and wife, without any words spe- cially prescribing the kind or quality of estate each shall take, the grantees are still seised as tenants of the entirety per tout and not per my.'' In common practice, deeds or " grants" are now acts of the grantor alone in so far as the execution by sealing and subscription are concerned, the grantor alone signing and sealing." The covenants inserted in this species of deed or "grant," commonly termed a " dieed poll," are just as binding on a grantee accepting delivery thereof and his assigns as if such grantee also had signed and sealed the same ; and an action of covenant may be maintained thereon against the grantee.' A conveyance in trust stands on the same principle, but it is more frequently inter partes, or executed by both grantor and grantee. Where there are numerous grantees of lands deeded on trusts, it is usual to underwrite an acceptance of the deed or trusts, as delivery of the deed to one only is not conclusive evidence of an ac- ceptance by others named as grantees. The term " in- denture" has ceased to have any technical meaning. The covenants usually inserted in deeds are independent ' 2 Bla. Com. 107. ' Infra, p. 176. » C. 537, Laws of 1887 ; cf. Hunt v. Johnson, 44 N. T. 27. * By the Married Women's Estates Acts, supra, p. 127 ; c. 200, Laws of 1848 ; c. 375, Laws of 1849 ; c. 90, Laws of 1860 ; c. 172, Laws of 1862 ; c. 472, Laws of 1880. '■ Miner v. Brown, 133 N. Y. 308 ; Zorntlein v. Bram, 100 N. Y. 12 ; Ber- tles V. Noonan, 92 N. Y. 152. ' They are not " unilateral," but " bilateral," for both parties are bound. Cf. Sparrow v. Kingman, 1 N. Y. at p. 251. ' The Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 ; Post v. West Shore R. R. Co., 123 N. Y. 580. COVENANTS. 175 of the Kevised Statutes. As Lord Eldon observed, they may be for almost anything.' No particular words are nec- essary to make a covenant ; " but as the more common cove- nants have been the subject of many celebrated litigations and contentions, draftsmen usually retain in the long form of deeds the language of the covenants employed before the Revised Statutes. The old forms are just as applicable to alodial lands as to lands formerly in tenure, for, as al- ready 8hov?n, the quantity and quality of legal estates in alodial lands are still substantially of the common law. The Revised Statutes declare that " no covenant shall be im- plied in any conveyance of real estate, whether such convey- ance contains special covenants or not." ' It was, however, the rule before this revision that an express covenant con- tained in a deed of conveyance excluded a presumption of implied covenants.* The Revised Statutes extended such rule to any conveyance.' At first there was some doubt whether this provision of the statute extended to estates for years," and it was finally resolved that it did not.' Lineal and collateral warranties ' with all their incidents were abolished,' heirs and devisees being answerable for covenants of predecessors only to the extent of the lands devised or descended to them," and in case the personal as- sets of such predecessors proved inadequate. Collateral war- ranties had been long before abolished, " but lineal warran- ties or the obligation imposed by the common law on an heir by the warranty of his ancestor to give (out of the real as- » Church V. Brown, 15 Ves. 358, 264. » HaUie v. Wylie, 3 Johns. 44, 48 ; Bull v. FoUett, 5 Cow. 170 ; Countryman v. Deck, 13 Abb. N. C. 110. In drawing a covenant intended to run with the land it is better to say : " This covenant shall run with the land granted." 18 Abb. N. C, note 114, 116. » 1 R. 8. 738, sec. 140 ; Bead v. Erie By. Co., 97 N. Y. 341, 348. ■■ Vanderkarr v. Vanderkarr, 11 Johns. 133. ' Leggett V. Mutual L. Ins. Co. 53 N. Y. 394. « Tone V. Brace, 11 Pai. 566, 569 ; Kinney v. Watts, 14 Wend. 38. ' Mayor of N. Y. v. Mabie, 13 N. Y. 151, 158. ' As to distinction between these warranties see note 330, Co. on Litt., 370J. 9 1 R. S. 739, sec. 141 ; of. 1 R. L. 535, sec. xxvi. ; 4 Anne, c. 16. '0 3 R. S. 109, sec. 53. " 1 R. L. 525, sec. xxvi. ; 2 J. «& V. 281 ; 4 Anne, c. 16. 176 INTEEPEETATION. sets descended to the heir) to the warrantee on his eviction lands of equal value to those lost, were regulated by the revisers.' The Revised Statutes ' contained also several rules of im- portance as regards the legal effect of a grant : 1. A grantor could not by any conveyance pass an estate greater than such grantor possessed at the date of delivery of the deed, except that every grant was made conclusive against the grantor and his heirs.' Every grant was also conclusive against subsequent purchasers from sijch grantor, or his heirs claiming as such, except, however, subsequent purchasers in good faith and for value who acquired a su- perior title by a conveyance first recorded. * At common law a tortious feoffment with livery of seisin passed a fee,' and after descent cast entry was tolled, and the remedies of the disseisee became very complicated,' as presumptions then favored mere possessory titles to a greater extent than at present. The abolition of warranties and the destruction by the Revised Statutes of all the legal presumption favor- ing a title derived from a wrongful possessor brought con- veyances of lands to a foundation more in harmony with the recording acts.' 2. A conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey does not now, as formerly it did, work a forfeiture of his estate, but is operative to pass all his interest therein.' 3. Every grant of lands is made absolutely void if at the time of its delivery such lands are in the actual possession of a person claiming under a title adverse to the grantor.' ' 2 E. S. 109, 452, 453 ; Hill v. Ressegein, 17 Barb. 162. « Art. IV. of Tit. 2, c. I., Part II., R. S. '1 R. 8. 739, sec. 148 ; Thompson v. Simpson, 128 N. Y. 270 ; Sage v. Cart- right, 9 N. Y. 49 ; Sparrow v. Kingman, 1 N. Y. 242, 251. • 1 R. S. 739, sec. 144. ' Sparrow o. Kingman, 1 N. Y. 242, 250 ; Thompson v. Simpson, 128 N. Y. 270, 285. • 3 Bla. Com., ch. 10. ' Thompson v. Simpson, 128 N. Y. 270, 285. e 1 R. S. 739, sec. 145 ; Sparrow v. Kingman, 1 N. Y. 242, 257 ; of. 1 R. L. 181, sections 1, 2, 7 ; Moor? v. Littel, 41 N. Y. 66, 78. 9 1 R. S. 739, sec. 147 ; cf. 1 R. L. 173, sec. viii. ; Crary v. Goodman, 22 THE EECOEDING ACTS. 177 An exception is, however, made in the case of a mortgage by a person out of possession but having a just title to the lands so held adversely." The present system of conveyancing finds its complement largely in the acts relating to the proof and the recording of conveyances of real estate.' While conveyances are per- fect as between the parties without being recorded,' unre- corded conveyances are avoided by the statutes as against subsequent purchasers in good faith and for a valuable con- sideration.* To entitle any conveyance to be recorded it must be acknowledged by the parties executing the same, or proved by a subscribing witness and in the manner provided by law.° These technical rules are amplified by the text of many competent authorities. Their consideration is beyond the scope of this essay. N. Y. 170 ; Towle v. Remsen, 70 N. T. 303, 313 ; Danziger v. Boyd, 130 N. T. 638. ■ 1 R. S. 739, sec. 148. ' 1 R. 8. 755. » Supra, p. 171. M R. S. 756, sec. 1. " Ibid., sec. 4. APPENDIX NO. I. ATENT TO THE DUKE OF YOEK, 1664. /if ijatUs t|jt .Setontr iSg tije fltate of God King of Eng- Uh land Scotland flrance and Ireland defender of the flaith etc To All to wliome these presents shall come Greeting Know tee that wee for divers good Causes and Consideracons ns thereunto moveing Have of our especiall grace certaine knowledge and meere mocon given and Graunted And by these presents for us our heires and Suc- cessors Doe give and Graunt unto our dearest Brother James Duke of Yorke his heires and Assignes All that part of the Mayne land of New England beginning att a certaine Place called or knowne by the name of S* Croix next adioyneing to New Scotland in America and from thence extending along the Sea Coast unto a certaine Place called Petuaquine or Pemaquid and (soe) upp the River thereof to the furthest head of the same as itt tendeth Northwards and extending from thence to the River of Kinebequi and soe upwards by the shortest course to the River Cannada Northward And alsoe all that Island or Islands comonly called by the severall name or names of Matowacks or Long Island scituate lyeing and being tow- ards the west of Cope Codd and the Narro Higansetts abut- ting upon the Mayne land betweene the twoe Rivers there called or knowne by the severall names of Conectecutte and Hudsons River Together alsoe with the said River called Hudsons River and all the land from the west side of Connectecutte River to the East side of De la Ware Bay And alsoe all those severall Islands called or knowne by the names of Martin Vinyards and Nantukes otherwise Nantukett Together with all the lands Islands Soyles Rivers Harbours Mynes Mineralls Quarries Woods Marishes 180 APPENDIX NO. I. Waters Lakes ffisMngs hawking hunting and ffowleing and all other Eoyalties proffitts Comodities and hereditaments to the said severall Islands lands and premisses belonging and appertaineing with their and every of their appurtenncs And all our Estate right title interest benefitt advantage Clayme and demaund of in or (to) the said lands and prem- isses or any part or parcell thereof And the Kevercon and Revercons Remaynder and Remaynders together with the yearely and other the Rents Revenues and proffitts of all and singuler the said premisses and of every part and par- cel thereof To hate and to hold All and singuler the said lands Islands hereditaments and premisses with their and every of their appurtenncs hereby given and Graunted (or herein before menconed to bee given and granted) unto our said dearest Brother , James Duke of Yorke his heires and Assignes for ever To the only proper use and behoofe of the said James Duke of Yorke his heires and Assignes for ever To bee holden of us our heires and Successors as of our Manor of East Greenwich in our County of Kent in ffree and Comon Soccage and not in Capite or by Knights Service teilding and Rendering And the said James Duke of Yorke Doth for himselfe his heirs and Assignes covenant and promise to yeild and Render unto us our heires and Successors of and for the same yearely and every yeare ffortie Beaver Skynns when they shall bee demanded or vnthin Nynety days after And we doe eurthee of our especiaU grace certaine knowledge and meere mocon for us our heires and Successors give and Graunt unto our said dearest Brother James Duke of Yorke his heires Deputyes Agents Comissioners and Assignes by these presents full and absolute power and authority to Correct punish Pardon Governe and Rule all such the Subjects of us our heires and Successors as shall from tyme to tyme Adventure themselves into any the parts or Places aforesaid or that shall or doe att any tyme hereafter Inhabite within the same according to such Lawes Orders Ordinances direccons and Instruments as by our said dearest Brother or his Assignes shall bee established And in defect thereof in Cases of necessitie according to the good discreccons of his Deputyes Comissioners Officers or Assignes respectively DUKE OF TOEk's PATENT. 181 as well in aU Causes and matters Capitall and Criminall as Civill both Marine and others Soe allwates as the said Statutes Ordinances and Proceedings bee not contrary to but as neare as conveniently may bee agreeable to the Lawes Statutes and Governement of this our Realme of England And SAVEiwa and reserveing to us our heirs and Successors the receiveing heareing and determineing of the Appeals and Appeales of all or any Person or Persons of in or belonging to the Territories or Islands aforesaid in or touching any Judgment or Sentence to bee there made or given And exjethee that it shall and may bee lawfuU to and for our said dearest Brother his heires and Assignes by these presents from tyme to tyme to ]!l^ominate make Constitute Ordeyne and Confirme by such iN'ame or Names Stile or Stiles as to him or them shall seeme good and like- wise to revoke discharge Change and alter as well all and singuler Governors Officers and Ministers which hereafter shall bee by him or them thought fitt and needfuU to bee made or used within the aforesaid Parts and Islands and alsoe to make Ordayne and Establish all manner of Orders Lawes direccons Instruccons formes and Ceremonies of Government and Magistracy fitt and necessary for and con- cemeing the Government of the Territories and Islands aforesaid soe allwayes as the same bee not contrary to the Lawes and Statutes of this our Realme of England butt as neare as may bee agreeable thereunto And the same att all tymes hereafter to putt in Execucon or abrogate revoke or change not only within the Precincts of the said Territories or Islands butt alsoe upon the Seas in goeing and comeing to and from the same as hee or they in their good discreccons shall thinke to bee fittest for the good of the Adventurers and Inhabitants there And we doe euethbe of our espe- ciall grace certaine knowledge and meere mocon Graunt Ordeyne and Declare That such Governors Officers and Ministers as from tyme to tyme shall bee authorized and appointed in manner and forme aforesaid shall and may have full power and authority to use and exercise Marshall lawe in cases of Rebellion Insurreccon and Mutiny in as large and ample manner as our Leiftennants in our Coun- tyes within Our Realme of England have or ought to have 182 APPENDIX NO. I. by force of their Comission of Leiutennancy or any lawe or Statute of this our Eealme And "wee dob further by these presents for us our heires and Successors Graunt unto our said dearest Brother James Duke of Yorke his heires and Assignes that itt shall and may bee lawful to and for the said James Duke of Yorke his heires and Assignes in his or their discreccons from tyme to tyme to Admitt such and soe many Person and Persons to Trade and Trafflque unto and within the Territoryes and Islands aforesaid and into every or any part and parcell thereof And to have possesse and enioye any lands or hereditaments in the parts and Places aforesaid as they shaU thinke fitt according to the Lawes Orders Constitucona and Ordinances by our said Brother his heires Deputyes Comissioners and Assignes from tyme to tyme to bee made and established by virtue of and according to the true intent and meaneing of these presents and under such Condicons reservacons and Agree- ments as our said Brother his heires or Assignes shall sett downe Order direct and appoint and not otherwise as aforesaid And web doe further of our especiall grace certaine knowledge and meere mocon for us our heirs and Successors give and Graunt to our said deare Brother his heires and Assignes by these presents that itt shall and may bee lawfuU to and for him them or any of them att all and every tyme and tymes hereafter out of any Our Realmes or Dominions whatsoever to take lead Carry and Transport in and into (their) Voyages and for and towards the Plan- tacon of our said Territoryes and Islands all such and soe many of our loveing Subjects or any other Strangers being not prohibited or under restraint that will become our love- ing Subjects and live under our Allegiance as shall vdllingly Accompany them in the said Voyages Together with all such Cloathing Implements JBfurniture and other things usually transported and not Prohibited as shall bee neces- sary for the Inhabitants of the said Islands and Territoryes and for their use and defence thereof and maunaging and Carrying on the Trade with the People there and in passing and retumeing to and fro TEiLDiNa and paying to us our heires and Successors the Customes and Duties there- fore due and payable according to the lawes and Customes DUKE or toek's patent. 183 of this our Realme And wee doe alsoe for ns our heires and Successors, Graunt to our said dearest Brother James Duke of Yorke his heires and Assignes and to all and every such Governor or Governors or other Officers or Ministers as by our said Brother his heires or Assignes shall bee appointed to have povrer and Authority of Govemement and Comaund in or over the inhabitants of the said Territories or Islands that they and every of them shall and lawfully may from tyme to tyme and att all tymes hereafter for ever for their severall defence and safety encounter expulse re- pell and resist by force of Armes as well by Sea as by land and all wayes and meanes whatsoever all such Person and Persons as without the speciall Lycence of our said deare Brother his heires or Assignes shall attempt to inhabite within the severall Precincts and Lymitts of our said Terri- tories and Islands And alsoe all and every such Person and Persons whatsoever as shaU enterprize or attempt att any tyme hereafter the distruccon Invasion detriment or annoyance to the Parts Places or Islands aforesaid or any part thereof And lastly otjr Will and pleasure is and wee doe hereby declare and Graunt that these our Letters Pattents or the Inrollment thereof shall bee good and eflEec- tuall in the Law to all intents and purposes whatsoever Notwithstanding the not reciteing or menconing of the premisses or any part thereof or the Meets or Bounds thereof or of any former or other Letters Patents or Graunts heretofore made or Graunted of the premisses or of any part thereof by us or of any of our Progenitors unto any other Person or Persons whatsoever Bodyes Politique or Corporate or any Act Lawe or other Restraint incertainty or ymperf eccon whatsoever to the contrary in any wise not- withstanding Although Expeesse mencon of the true yearely value or certainty of the premisses or of any of them or of any other Guifts or Graunts by us or by any of our Progenitors or Predecessors heretofore made to the said James Duke of Yorke in these presents is not made or any Statute Act Ordinance Provision Proclamacon or Re- striccon heretofore had made Enacted Ordeyned or provided or any other matter Cause or thing whatsoever to the con- trary thereof in any wise notwithstanding In "Wittnes 184 APPENDIX NO. I. whereof Wee have caused these our Letters to bee made Patents Wittnes our Selfe att Westminster the Twelveth day of March in the Sixteenth yeare of our Raigne By the King Howard* * This Patent is framed and hangs in the State Library at Albany. It is recorded in Liber I., Patents, p. 139, Secretary of State's office, Albany, N. Y. It is very neatly printed in the admirable series of State documents contained in the official publications (Doc. rel. to Col. Hist, of N. Y., II., 295), and in the " Report of the Regents of the University on the Boundaries of the State of New York," I., 10. The second Patent, or that of 1674 (sitpra, p. 16), given by King Charles II. to the Duke of York after the Treaty of Westminster, is printed in Leaming and Spicer's New-Jersey Grants, p. 41, and extracts are contained in the "^Report of the Regents on the Boundaries" {ibid., supra), p. 31. OBSEEVATION8 ON THE APPENDICES. 185 A brief discussion concerning those who may lawfully hold lands in the State of New York, and of the imperfect status of the Indians, seemed best relegated to the end of this volume. It will be observed that by law all citizens of the United States, no matter where resident, are entitled to take and hold lands in the different States of the Union,' a fact of tremendous significance in the future of landed prop- erty in this country. The disabilities of an alien to hold lands did not originate in the feudal law, but grew up at a later period, when the ideas of national existence and the theories relative to the State had already triumphed over purely feudal conceptions of sovereignty." In Calvin's Case 'it was extremely well argued that a Scot, bom in Scotland after the Crown of England had descended to James I., was disabled to bring any real action within the realm of England, the "ligeance" of each kingdom being separate and distinct. But the courts, after a very profound consideration, held otherwise. Thus it was always the law of the different American plantations of England, whether they were colonies or provinces of the Crown, that the subjects of a common king were not aliens inter se, and, consequently, a citizen of the colony of Mas- sachusetts Bay, or of Rhode Island and the Providence plantations, or of Virginia, might take and hold lands here as freely as if he were born within this province. The continuation of this ante iellum privilege, at once so extensive and so advantageous, was naturally insisted on at the time of the first formal confederation of the colonies. When independence was achieved, and it became essential to remodel the general government more in conformity with the natural partition of the ancient and subverted powers, both imperial and local, we find the same influential priv- ilege anchored, as it were, to the very body of the final con- stitution of government. Thus this great and extensive privilege, peculiar to permanent and vast empires, is fortu- nately now an inseparable incident of the status of a citizen of the United States.* ' P. 186, infra. « Bupra, p. 103. ' 7 Kep. 1. < Appendix No. II., infra. APPENDIX WO. 11. OF THE PERSONS CAPABLE OP HOLDUfG AND CONVEriNG LANDS.' Citizens of the United States. The Revised Statutes declare that " Every citizen of tlie United States is capable of holding lands in 'New York, and of taking the same by descent, devise, or purchase. " " This was merely declaratory of a right embodied in the Federal Constitution.' Prior to Independence a natural- ized or a native-bom citizen of any colony could take and hold lands in other of the Crown dominions, for he was a subject of the common King, and his status related to the empire and not to any particular territory within the empire. The Articles of Confederation perpetuated this right or capacity.* Thence it passed into the National or Federal Constitution and became fundamental or organic." The federal law for the purposes, at least, of the real prop- erty lawyer must now determine who are citizens of the United States." Citizens of the United States may for such purposes be classed as (1) those who were citizens of any State at the time of the adoption of the Federal Constitu- tion ; ' (2) all persons bom in the United States and not s abject to any foreign power, excluding Indians not taxed ; ' ■ 1 B. S. 719, Art. II., Tit. 1, c. 1, Part II. « 1 R. S. 719, sec. 8. ' Art. IV., sec. 2. « Art. IV. ' Const, of U. S., Art. IV., sec. 2 ; 2 Story on Const., sec. 1806 ; Lynch v. Clarke, 1 Sandf. Ch. 583-645. ' Ludlam v. Ludlam, 26 N. Y. 356, 360 ; Comitis v. Parkerson, 56 Fed. R. 556. ■• Ut supra, p. 76 ; Lynch v. Clarke, 1 Sandf. Ch. 588, 645 ; Minor v. Hap- persett, 21 "Wall. 162, 167. ' U. S. R. S., sec. 1993 ; Fourteenth Amendment to Constitution of U. S. ; Slaughter Souse Cases, 16 Wall. 36, 72 ; U. S. R. S., sec. 2172 ; in re Look Tin Sing, 21 Fed. R. 905. CITIZENS OF THE UNITED STATES. 187 (3) all those free wMtes and Africans wliom the sovereignty of the United States has clothed with citizenship by natu- ralization and subject to the jurisdiction thereof.' Since the year 1790 the Federal Government has, under the Fed- eral Constitution, the exclusive power of naturalization. Consequently the States cannot now make an alien " a citi- zen of the United States," the delegated power to that end be- ing exclusive when it has once been exercised by Congress." By act of Congress of February 10th, 1885/ an alien woman, possessing the capacity for citizenship, intermarrying with a citizen of the United States, either here or abroad, be- comes a citizen, no matter where she may reside ; * but the converse — ^that a citizen woman by marriage with an alien becomes an alien — is not to be inferred from this statute. ' The status of an alien or of a citizen being once fixed is pre- sumed (except in the case of deserters) to continue untU the contrary be shown." But foreign birth is not conclu- sive of alienage, for although children of citizen parents (or of a citizen father in some cases) are born out of the limits and the jurisdiction of the United States, they are to be considered as citizens of the United States.' Nor is birth within the United States conclusive of the status of a citizen, for the legitimate children of diplomatic or con- sular alien personages, although born here, are not there- ' Fourteenth Am'd't Cons't of U. S. ; Boyd v. Thayer, 143 U. S. 135 ; U. S. R. S., sec. 2169. ' Const, of U. S., Art. I., sec. 8 ; Golden v. Prince, 3 Wash. C. Ct. 314 ; Lynch v. Clarke, 1 Sandf. Ch. 583, 645 ; U. S. R. S., sections 3165, 2174 ; of. 39 Arner. Law Rev. 52 on " Continuous Residence" of alien. 3 U. S. R, S., sec. 1994 ; Ware v. Wisner, 50 Fed. R. 310 ; Ludlam v. Lud- 1am, 36 N. Y. 356 ; Luhrs v. Eimer, 80 N. Y. 171 ; Wainwright v. Low, 133 N. Y. 813 ; Halsey v. Beer, 53 Hun, 366. ■> Halsey v. Beer, 53 Hun, 366 ; Kelly v. Owen, 7 Wall. 496. ' Comitis V. Parkerson, 56 Fed. R. 556 ; cf. Wadsworth v. Wadsworth, 12 N. Y. 876. « Ha,uenstein v. Lynham, 100 U. S. 483 ; Charles Green's Son v. Salas, 31 Fed. R. 106 ; but see Boyd v. Thayer, 143 U. S. 185 as to what proof will rebut presumption. See as to deserters U. S. R. S., sections 1996, 1997 and 1998 (and see N. Y. Laws of 1873, c. 130), for exceptions to the rule. ' U. S. R. S., sections 1993, 2172 ; U. S. v. Gordon, 5 Blatch. 18 ; "Ware v. Wisner, 50 Fed. R. 310 ; Lynch v. Clarke, 1 Sandf. Ch. 583 ; Opinions Att'y Gen'l U. 8., X., 329 ; cf. Laws of N. Y. 1889, c. 42, as to capacity of chil- dren of a native woman to take real estate, 188 APPENDIX NO. II. fore citizens, for they are in legal contemplation born exter- ritorially or within the allegiance or diplomatic jurisdiction of the sovereign represented by the parent.' So the chil- dren of alien tourists or of commercial agents, animo rever- tendi domum, are to some extent exceptions to the univer- sality of the rule indicated — that American birth confers the status of a citizen of the United States." There are now but two sources of citizenship in the United States, birth and naturalization ;° and the latter is limited in application to free white persons or to those of African nativity or de- scent. The general naturalization laws have no applica- tion to Mongolians or to those of half white and half Indian blood.' In the absence of any law of the United States governing the particular case, the common law is in New York to determine, irrespective of English statutes, whether or not one is an alien or a citizen of the United States.' But as naturalization is a judicial act of record, it can only be proven by the record,' and not by parol.' The naturalization of an alien already married, however, ope- rates to naturalize his alien wife ' and minor children.' Expatriation. The common law led to harsh doctrines concerning per- petual allegiance," which were deemed somewhat incon- sistent vdth the liberal naturalization accorded to aliens by ' Lynch v. Clarke, 1 Sandf. Ch. 583, 658 ; in re Look Tin Sing, 31 Fed. R. 905. » Cf. Opln. Att'y Gen'l U. 8., X., 328.: » Elk V. Wilkins, 113 U. 8. 94, 101. < U. 8. R. S., sec. 2169 ; re Ah Tup, 5 Sawyer, 155 ; re Camille. 6 Sawyer, 541. Indians are now naturalized by special laws. Elk «. Wilkins, 113 U. S. 94, 103. ' Ludlam v. Ludlam, 26 N. Y. 356 ; and see also Lynch «. Clarke on this point, 1 Sandf. Ch. 583. ' Charles Green's Sons v. Salas, 31 Fed. R. 106. ' See, however, Boyd v. Thayer, 143 U. 8. 135 ; McCarthy ®. Marsh, 5 N. Y. 268, 284. 6 Burton B. Burton, 1 Keyes, 359 ; Kelly «. Owen, 7 "Wall. 496. 'People V. Newell, 38 Hun, 78 ; U. S. R. S., sec. 2173. "> Kent'sCom. II., 49 ; Story Const., sec. 1104, n. 1 ; Opin. Att'y Gen'l U. S., viii., 157 ; Wharton Conf. of Laws, chap. I. ; Ludlam «. Ludlam, 36 N. Y. 356, 373. DISABILITIES OF ALIENS. 189 this country. In the year 1868 Congress set the matter at rest by an explicit declaration in favor of the natural and inherent right of all people to expatriate themselves.* This declaration ought logically to extend to citizens of the United States.^ As the federal authority alone can make a citizen of the United States by process of naturalization, its con- clusions as to what constitutes " expatriation" of its own citizen will be paramount to any determination of a State tribunal.' Disabilities of Aliens. All persons [excluding Indians not taxed *] who are not citizens of the United States are aliens, and in New York are subject to certain disabilities in respect of lands. Such disabilities originate in the common law, and are due to the authority given the common law by the Constitutions of the State." But as the Legislature has the reserve power to alter such common law, it has in many particulars now modified the ancient disabilities of aliens. At common law there were but two modes of acquiring title to real prop- erty, by "purchase" and by "descent,"' which last is by operation of law. ' ' Descent' ' refers alone to a succession db intestato f purchase is in law a generic term, and includes every mode (except descent) by which a title to lands is trans- mitted from one person to another. An acquisition by an alien through purchase was never void at the common law," but only a cause of forfeiture to the Crovni. Had the transfer been void it might often have defeated such for- feitures. Forfeitures on this ground were not of feudal ori- gin, but grew out of a more extended polity designed to encourage national strength and well-being." After Inde- ' U. S. R. S., sec. 1999 ; Charles Green's Sons «. Salas, 31 Fed. R. 106. ' See, however, Comitis ®. Parkerson, 56 Fed. R. 556 ; Opin. Att'y Gen'l N. Y. for 1868, p. 880. 3 Comitis «. Parkerson, 56 Fed. R. 556. ■■ U. S. R. S., sec. 1992. « Const. 1777, sec. xxxv. ; Const. 1823, Art. Vlt., sec. 13 ; Const. 1846, Art. I., sec. 17 ; Const. 1894-5, Art. I., sec. 16 ; Ludlam v. Ludlam, 26 N. T. 856 ; of. 1 R. S. 720, sec. 17, and Wright ®. Saddler, 20 N. Y. 330. « Stamm v. Bostwick, 133 N. Y. 48, 51. ' Jackson v. Lunn, 3 Johns. Cas. 109, 131. 8 2 Bla. Com., 393 ; Craig v. Leslie, 3 Wheat. 563, 588. « 2 Bla. Com., 249, 353 ; mpra, p. 103. 190 APPENDIX WO. II. pendence the State having succeeded to all the seigniorial and prerogatival rights of the Crown maintained its pre- rogative of escheats or forfeitures in socage lands, both by authority of the statute and by the common law." In re- spect of those lands granted under the great seal of the State, and made alodial by the statute of 1787," the statute law provided for escheats on the owner's conviction of treason,' or by reason of felony,' or on the death of the last owner without right heirs.' Socage lands, and by analogy alo- dial lands, could not pass to an alien by operation of law, for the common law took no notice of an alien.' For the same reason an alien could not take by curtesy or dower, for they were estates created by act of the law.' As an alien had no inheritable blood no one could deduce title by descent through such alien ; ' but this rule did not impede descents between citizen sons of an alien father,' or between the sons' surviving descendants " as such. But a nephew could not inherit from his uncle if his father was an alien." The legal title of an alien acquired by purchase (which includes devise) was recognized by the common law, and he could maintain an action to protect it." The estate was ' Jackson v. Lunn, 3 Johns. Cas. 109 ; et ut supra, pp. 76, 100 ; and see 3 J. & v. 343, sec. vi. ; cf . 1 R. L. 495. ' 3 J. & V. 67, sec. vi. 3 3 J. & V. 55, 57. ^ 3 J. & V. 343. 5 1 R. L. 379. « 11 & 13 W. III. , c. 6 ; supra, p. 85 ; Orr v. Hodgson, 4 Wheat. 453 ; Lessee of Levy V. M'Cartee, 6 Pet. 102 ; Jackson®. Green, 7 "Wend. 333 ; Jackson v. Jack- son, 7 Johns. 314 ; Orser v. Hoag, 3 Hill, 79 ; McLean v. Swanton, 13 N. Y. 535 ; Luhrs «. Eimer, 80 N. Y. 171. ' Jackson e. Lunn, 3 Johns. Cas. 109 ; Jackson v. Fitzslmmons, 10 "Wend. 9, 16 ; Mick v. Mick, 10 Wend. 379 ; ConoUy ». Smith, 31 Wend. 59. * Levy B. M'Cartee, 6 Pet. 103 ; Jackson ■». Green, 7 Wend. 833 ; Jackson v- Fitzsimmons, 10 Wend. 9 ; note to Leggett v. Dubois, 5 Pai. 114, 117. 9 2 Bl. Com. 350 ; Jackson v. Green, 7 Wend. 333 ; McGregor ®. Comstock, 8 N. Y. 408 ; Luhrs v. Eimer, 80 N. Y. 171 ; McLean v. Swanton, 13 N. Y. 535, 543 ; Renner v. MuUer, 44 Sup'r Ct., xi. J. & S. 535. '» McGregor ». Comstock, 3 N. Y. 408 ; Banks v. Walker, 3 Barb. Ch. 438 ; McLean v. Swanton, 13 N. Y. 535, 542. " Lessee of Levy v. M'Cartee, 6 Peters, 102 ; cf. Jackson ®. Green, 7 Wend. 333 ; Redpath v. Rich, 3 Sandf. 79 ; Jackson «. Fitzsimmons, 10 Wend. 9. " And so a resident alien may now do ; Nolan v. Command, 11 N. Y. Civ. Pro. R. 395. DISABILITIES OF ALIENS. 191 vested in him, to every purpose, until office found,' and could be conveyed by him subject to being divested on the recording of the inquisition." The Revised Statutes changed this last rule of the common law and made all devises to an alien living at the time of the death of testator void ; ' directing that the interest so devised should descend to the testator's heirs, and if there be no such competent to take, that it should then pass under his will to the residuary devisees, if any there were.* This provision was an augmentation rather than a diminu- tion of the common law disabilities of an alien.' It was soon, however, changed by statute,' so as to enable a resi- dent alien to devise lands, and a resident alien devisee to take and hold lands on filing a deposition of an inten- tion to become a citizen, as provided in the Revised Stat- utes.' By a recent act, any alien, no matter where resident, may now take by devise (hold, enjoy, convey, and trans- mit by devise) real estate from a citizen of the United States.' An alien woman, resident of this State, was already capable of taking by devise from her husband or other person capable of devising any real estate ; and she might execute any power in respect to such real estate.' So the foreign-born children and descendants of a native-bom woman may have, convey, and devise real estate in this State, ' Jackson v. Lunn, 3 Johns. Cas. 109 ; People v. Conklin, 3 Hill, 67 ; Munro «. Merchant, 38 N. Y. 9 ; Goodrich v. Russell, 43 N. Y. 177 ; Wright i>. Saddler, 20 N. Y. 330, 328 ; Wadswori;h v. Wadsworth, 13 N. Y. 376. « Griffith V. Pritchard, 5 B. & Ad. 765, 780. 3 Wadsworth v. Wadsworth, 13 N. Y. 876 ; Mick v. Mick, 10 Wend. 379. ■• 2 R. 8. 57, sec. 4 ; Mick «. Mick, 10 Wend. 879 ; Downing v. Marshall, 28 N. Y. 366, 875 ; Beekman v. Bonsor, 23 N. Y. 398, 316. » Wadsworth v. Wadsworth, 13 N. Y. 376 ; Marx v. McGlynn, 88 N. Y. 357, 376. « C. 115, Laws of 1845 ; amended c. 261, Laws of 1874 ; c. 38, Laws of 1875 ; c. 115, Laws of 1845, confirmed devises theretofore made by an alien to a citi- zen or to capable resident alien. ' 1 R. S. 730, sec. 15 ; Hall v. Hall, 81 N. Y. 130 ; cf . Marx «. McGlynn, 88 N. Y. at p. 376 ; the power to take depends now on this statute ; the power to hold as against the State on a compliance with the statute ; Hall v. Hall, id. swp. " C. 307, Laws of 1893. ' Laws of 1845, c. 115 ; cf . Laws of 1872, c. 130, as to woman bom here, but marrying alien and residing abroad ; and U. S. R. S., sec. 1994. 192 APPENDIX NO. II. ii derived from their mother or a citizen ancestor, notwith- standing her possible expatriation by an intermarriage with an alien and residence abroad.' Statutory Removal of such Disabilities. We have already noticed the statute law touching devises to aliens. Prior to the Revised Statutes, which superseded all general laws, the legislation affecting the common law disabilities of aliens was of a twofold character : 1. Quiet- ing the titles of those who then held lands deduced from English subjects or other aliens.' 2. Enabling actual set- tlers or alien friends to take and hold lands, and in certain cases to transmit title thereto." By such legislation aliens were empowered to take indefinitely by devise or by de- scent from such aliens as were then lawfully seised, but not otherwise. Having thus acquired title, they might con- tinue to hold the lands so transmitted until such lands finally came into the hands of a citizen.' These acts were, however, limited in application, and are only cursorily noticed. The Revised Statutes first provided that no person capable of inheriting should be precluded from such in- heritance by reason of the alienism of any ancestor." The revisers intended thus to change what they call a harsh rule of existing law." The common law had in England been changed in this respect by the Act 11 & 12 W. III., c. 6, which was no part of the law of New York,' at least after the general repealing act of 1788." This new provision ' C. 43, Laws of 1889 ; infra, p. 196. = Law of Feb. 38, 1789, c. 42 ; 3 Greenleaf , 279 ; c. 397, Laws of 1836 ; Law of April 4, 1807, c. 133. 3 C. 73, Laws of 1798, construed in c. 35, Laws of 1819 ; Law of 36 March, 1803, c. 49 ; c. 109, Laws of 1804 ; c. 35, Laws of 1805 ; c. 133, Laws of 1807 ; c. 175, Laws of 1808 ; the five last-mentioned acts are in 2 R. L. 541-544 ; c. 807, Laws of 1835 ; c. 171, Laws of 1830 ; c. 87, Laws of 1843. * Duke of Cumberland ®. Graves, 7 N. Y. 305 ; People ». Snyder, 41 N. Y. 397 ; Howard «. Moot, 64 N. Y. 363 ; Watson «. Donnelly, 38 Barb. 653. « 1 R. 8. 754, sec. 33 ; Lynch v. Clarke, 1 Sandf. Ch. 588, 687. • Revisers' notes to c. IL, Part II., R. S. ' Jackson ». Green, 7 Wend. 333 ; Levy «. M'Cartee, 6 Pet. 102, 109. ' Supra, p. 77. STATUTORY EEMOVAL OF SUCH DISABILITIES. 193 of the Revised Statutes was held prospective in operation,' and the word " ancestor" has been construed as embracing not only those who were lineal, but those also who were col- lateral." The section refers to estates derived ex parte ma- terna, as well as to those derived through the father, or ex parte paterna. While this section permitted citizens there- after to inherit, notwithstanding that they might deduce their title through an alien ancestor,' yet it did not change the course of descents in New York, so as to enable one not an heir-at-law to succeed as such in the room of one living but debarred by alienage only. Thus, where a decedent left surviving a sister who was an alien, and her daughter, who was a citizen, it was held that the niece could not inherit.* But this rule is now changed." The Revised Statutes also protected the titles of citizens in possession on or before April 2ist, 182,'),' consolidating several acts of the Legisla- ture to the effect that such titles should not be questioned or impeached by reason of the alienism of any person through whom such titles were deduced.' Several acts of like import have since been passed ° referring the protection to later dates. Aliens seised of real estate which by spe- cial laws they are permitted to hold and dispose of are empowered by the Revised Statutes to take back mort- gages thereon and enforce the same, and if necessary to repurchase and hold the lands mortgaged.' This provision w^as not new to the statute book." There is now no other special authority in New York enabling aliens to take and enforce a conveyance of lands by way of mortgage ; ex- cepting in the case of those aliens who have filed a de- position or declaration in writing of intention to become a citizen of the United States. " But if other aliens should take ' Redpath v. Rich, 3 Sandf . 79. ' McCarthy v. Marsh, 5 K. Y. 263. 3 Md. * McLean v. Swanton, 13 N. Y. 535. 5 C. 307, Laws of 1893. « 1 R. S. 719, sec. 9. ' 3 R. L. 543, 543. 8 C. 171, Laws of 1830 ; c. 115, Laws of 1845 ; c. 576, Laws of 1857 ; c. 513, Laws of 1868 ; c. 141, Laws of 1873 ; c. 358, Laws of 1872 i c. 361, Laws of 1874, sec. 3 ; c. 336, Laws of 1875 ; c. Ill, Laws of 1877. » 1 R. S. 721, sec. 19. '» Cf. 2 R. L., 541. " Infra, p. 195. 194 APPENDIX NO. 11. a mortgage, as it now is only a security, the common law- is irrelevant." The Revised Statutes, consolidating an act of 1825,' em- powered any alien inhabitant of New York (who should declare his intention to become a citizen of the United States as prescribed by the statute) to take and hold lands by pur- chase, and within six years thereafter to sell, assign, mort- gage, devise, or dispose of the same excepting by demise.^ In 1834 this provision was extended so as to embrace aliens coming into the United States to reside.* This license to alien inhabitants of the United States was not retroactive, so as to enable them to hold lands acquired before the filing of the declaration' or deposition as against the State.' In 1845 a demise theretofore made by an alien to a citizen of the United States or to an alien capable of taking and holding real estate was made valid.' In the same year" the law touching declarations by aliens intending citizenship was so amended as to make the filiag of such declarations operate retrospectively, or on property granted, devised, or con- veyed to such aliens prior to the filing of such declarations by them.' At common law a completed naturalization operated to bar an escheat at any time before office found in the case of property acquired by purchase." The act of 1845 extended this same effect to the very inception of the judicial process of naturalization." At common law no descent was cast on an alien, nor had an alien inheritable blood." The Revised Statutes consoli- • Ludlow V. "Van Ness, 8 Bosw. 178. ' C. 307, Laws of 1825, p. 427 ; Wright a. Saddler, 20 N. Y. 320. ' 1 E. 8. 720, sections 15 and 16 ; amended c. 272, Laws of 1834 ; cf . sec. 9, c. 115. Laws of 1845. * 0. 272, Laws of 1884. ' 1 R. S. 720, sec. 17 ; Heney ». The Brooklyn Benevolent Society, 39 N. Y. 333. ' Goodrich «. Russell, 42 N. Y. 177. ' C. 115, sec. 9, Laws of 1845. 8 C. 115, Laws of 1845 ; amended c. 576, Laws of 1857. 9 Goodrich 1). Russell, 42 N. Y. 177 ; Hall v. Hall, 81 N. Y. 130. '» Jackson v. Beach, 1 Johns. Cas. 399 ; People «. Conklin, 2 Hill, 67 ; Jack- son V. Green, 7 Wend. 333, 335. " C. 115, Laws of 1845, the denizen paying the accrued costs of the State. " Goodrich v. Russell, 43 N. Y. 177, 181. LAW OF 1845. 195 dating prior acts of the Legislature ' regulated descent from aliens who should file declarations or depositions of an in- tention to become citizens, in case the declarants died within six years after the making and filing of such deposition in- testate, leaving heirs inhabitants of the United States. Such heirs were empowered to take as if such aliens had died in the full possession of citizenship.' In the year 1845 the Legislature made important amendments and alterations of the law respecting aliens,' inter alia enabling aliens to in- herit those lands acquired by purchase by resident aliens dying seised of such property.* This act failed to remove the incapacity of aliens to take by descent from either natu- ralized citizens or native citizens.' This omission was sup- plied by a statute ° enabling alien kindred to take by de- scent from both naturalized and native-born citizens. But under the act of 1845 and its amendments, if such alien heirs were males of full age they were required to take steps to be naturalized before they could hold the lands as against the State.' None of these acts enabled aliens to take those lands acquired by an alien by descent. Nor did they enable aliens to take as the representatives of non- resident aliens.' A recent act, however, enables alien kin- dred of a citizen to take by descent, even though such aliens may deduce their title through a non-resident alien ancestor.' This last statute appears to have removed the disability which proved fatal to the plaintiff in Branagh «. Smith. The children and descendants of a woman born in the United States, or a citizen thereof, are given inheritable ' C. 297, Laws of 1826, p. 348 ; c. 5, Laws of 1827, passed Nov. 26. » 1 B. S. 720, sec. 18. 3 C. 115, Laws of 1845. * Ettenheimer «. Heflernan, 66 Barb. 374 ; Goodricli «. Bussell, 42 N. Y. 177 ; Stamm v. Bostwick, 122 N. T. 48 ; "Wainwright ». Low, 132 N. Y. 317. 5 Luhrs «. Eimer, 80 N. Y. 171. « C. 261, Laws of 1874 ; Wainwright v. Low, 182 N. Y. 318. ' C. 115, Laws of 1845 ; as amended c. 261, Laws of 1874, and c. 38, Laws of 1875 ; Goodrich v. Russell, 42 N. Y. 177 ; Dusenburry v. Dawson, 9 Hun, 511. « Branagh v. Smith, 46 Fed. R. 517. ' C. 207, Laws of 1893. 196 APPENDIX NO. II. blood, and take by descent from her, even though such woman marry an alien and reside abroad.' An act of 1889 extends this capacity and enables the foreign-born children and descendants of a native woman to take, hold, convey, and devise real estate derived from an ancestor who was a citizen with the same effect as if they were citizens of the United States, notwithstanding such native-born woman married an alien and resided abroad." Alien wives of citizens of the United States, or of alien residents seised of real estate, were after 184.^ entitled to dower in the lands of their husbands, and so the law now is." But an alien husband of a citizen woman will not have his tenancy by the curtesy, for there is no modification of the common law in that respect. An alien woman resident in this State may take lands by way of marriage settlement or by devise of her husband or other person capable of devising real estate.' While the State frequently surrenders its rights in the property of aliens, such a surrender cannot operate to de- feat vested rights.' Trusts for Miens. If lands be devised to citizens on active trusts for aliens only, the trusts are not necessarily invalid, as the trustees have capacity to take and hold the legal title.' So convey- ances in trust for aliens may be enforced in equity at the suit of the alien beneficiary.' But where an alien for the purpose of evading the law purchases lands and takes a conveyance in the name of a third person without any declaration of trust, it has been held that a resulting trust will not arise in favor of such purchaser. ' Where an alien ' C. 120, Laws of 1872 ; cf. U. S. R. S., sec. 2172 ; et supra, p. 192. ' C. 42, Laws of 1889. ' c_ 115^ l^ws of 1845. * C. 115, Laws of 1845, sec. 8. ^ Luhrs V. Eimer, 80 N. Y. 171, 180 ; Wainwright v. Low, 132 N. Y. 313. « Marx v. McGlynn, 88 N. Y. 357, 376 ; Meakings v. Cromwell, 5 N. Y. 136 ; cf. Beekman v. Bonsor, 23 N. Y. 298, 316. ' Anstlce v. Brown, 6 Pal. 448 ; Craig v. Leslie, 3 Wheat. 563 ; Marx v. McQlynn, id supra. ' Legett V. Dubois, 5 Pai. 114 ; cf. Ludlow v. Van Ness, 8 Bosw. 178. This would be so in the case of a citizen under the Revised Statutes ; supra, p. 140. TREATIES. 197 has capacity to hold lands, he may hold them in trust as well as for his own use.' Treaties. The disabilities of aliens are often relieved by treaty. As the power to make a treaty is lodged in the Federal Gov- ernment, that government takes by implication an author- ity to suspend the action of such State laws as conflict with the treaty." The treaty is ineflEectual unless it become the supreme law of the land.' When a treaty regulates the status of aliens, it is equivalent to a personal law, exempt- ing such aliens from the operation of the ordinary law gov- erning the case of other aliens. Such treaties usually sub- ject the favored aliens to the common rules regulating the person or property of citizens. The constitutional power of the United States to enter into a treaty which in effect changes or abrogates the law of a State in respect of certain real property is fully affirmed.' It is often necessary to consult the treaties in a matter relating to the succession to property of aliens dying intestate. The discussion of the treaties themselves is beyond the scope of this essay. ' Duke of Cumberland «. Graves, 7 N. Y. 305 ; 9 Barb. 595. ^ For a general discussion of this subject, consult Prof. Bemheim's " His- tory of the Law of Aliens," pp. 148, et seq. 3 Kull V. Kull, 37 Hun, 476, 478, and cases cited. * Hauenstein v. Lynham, 100 U. S. 483 ; Geofroy «. Riggs, 133 U. S. 3i58 ; Opin. U. S. Att'y Gen'l, VIII., 411 ; Wheaton's Intemat. Law, 189 ; Halleck's Internat. Law, 157 ; Kent's Com., IV., 420 ; Wharton's Amer. Law, sec. 361. APPENDIX NO. ni. Indians. The modem law relating to the American Indians is almost a deduction from the early principles acted on by Europeans in the sixteenth and seventeenth centuries.' In most particulars the capacity of the Indians in respect of real property remains a very limited one. They still occupy a peculiar status. They do not belong to an independent nation,' yet they are not aliens. ' Although born within the jurisdiction of the United States and subject to no for- eign power, they are not citizens of the State,* or of the United States within the meaning of the fourteenth amend- ment, unless they separate from their tribal relations and pay a tax to the support of government — State, municipal, or federal.' This imperfect status is the result of certain doctrines laid down at the first occupation of this country by Europeans,* who never accorded to the natives the rights which jura telli give even to conquered nations. There was said to be no " conquest" in the European sense of this term.' Their tribal governments were given a sort of cor- porate recognition," but such a recognition as wholly sub- ordinated them to the operations and regulations of the ' Supra, p. 3. " Cherokee Nation v. Georgia, 5 Pet. 1. ' Ibid.; Jackson ex dem. v. Wood, 7 Johns. 290, 295 ; Goodell v. Jackson, 20 Johns. 693. * People V. Dibble, 16 N. Y. 203, 212. ' U. S. R. S., sec. 1992 ; Elk v. WUkins, 112 U. S. 94 ; V. S. v. HoUiday, 3 "Wall. 407. ' 3 Kent's Com. 384, 385 ; mpra, p. 3. ' Martin «. Waddell, 16 Pet. 367, 409 ; Johnson «. Mcintosh, 8 Wheat. 643. ' Cherokee Nation v. Georgia, 5 Pet. 1. 200 APPENDIX NO. III. supreme government, within whose paramount and, in some aspects, exclusive sovereignty they were permitted to exist. The result of these assertions of power has been the growth of an arbitrary historic code of Indian affairs and laws. The rights and capacity of the Indians, collectively and individually, are therefore matters of State regulation. They are found in the codes of the States or the nation. ' If not found there, they are, for the purposes of the law- yer, non-existent. Since the foundation of the State Government the Con- stitution has declared any purchase or contract of or with the Indians for the sale of lands in this State invalid, unless the same be made under the authority and with the con- sent of the Legislature." A violation of this inhibition is also penal.' The Constitution was at first understood to refer to the tribal lands only,* but this conception was sub- sequently dispelled, and the inhibition extended to all lands belonging to Indians." In 1843 the Legislature author- ized any native Indian to take, hold, and convey lands in the same manner as a citizen." Now where such Indian has been naturalized, this act would be unnecessary, and where in conflict with the Constitution, invalid.' Most laws relating to Indians have now been consolidated and the residue to a considerable extent repealed.' When an Indian, either by naturalization ° or by an abandonment of his tribal subjection coupled with the payment of a tax to the support of Government," has become a citizen of the United States, the Indian codes cease to be relevant. ' U. S. ®. Holliday, 3 Wall. 407 ; Elk v. Wilkins, 113 U. S. 94, 108. ' Const. 1894-5, Art. I. ; Const. 1846, Art. I. ; Const, of 1822, Art. VII. ; ' C. 692, Laws of 1893, sec. 384ffl. * Jackson ex dem. «. Wood, 7 Johns. 390. » Goodell B. Jackson, 30 Johns. 693 ; Lee ». Glover, 8 Cow. 189. « C. 87, Laws of 1843 ; commented on in Elk v. Wilkins, 113 U. S. 94, 107. ' Cf. Elk V. Wilkins, 113 U. S., p. 107. 8 C. v.. New General Laws of N. Y. ; c. 679, Laws of 1893, as amended by c. 229 and c. 692, Laws of 1893. » See the acts referred to in Elk v. Wilkins, 112 U. S., pp. 103, 104. '» Fourteenth Amendment, Const, of U. S. ; sec. 1992 U. S. R. S., and U. S. ■». Elm, 33 Int. Rev, Rec, 419, GENEEAL I]!^^DEX. (Befera to pages.) ACCUMULATIONS OF INCOME, direction for, when valid under K. S., 115. when to begin and end now, 115. Mr. ThellusBon's attempt at, in England under the old law, 115. restricted afterward in England by statute, 115. restricted in K. Y. by E. S., 115, 144, 145. restricted to period of minority only, 145. ACKNOWLEDGMENT OF DEEDS AND MOKTGAGES, laws, in reference to, in the province of New York, 16, 19, 56, 57. of mortgages in the province, 16, 19, 60, 61, note. secret examination at femes covert required on, 17. regulated in 1771, 57, 87. laws prior to the E. S., 57, 87. see also recital in c. 51, Laws of 1775. provisions of the E. S. concerning, now in force, 177. ALIENATION, restraint on, when void, 46. ALIENS, could not take lands by descent in the province, 63. could not hold lands as against the Crown, 63. how naturalized in the province of New York, 14, 63, 64. effect of articles of capitulation on the Dutch, 64. effect of independence and Eevolutionary War on, 75. disabilities of, due to the common law, 103, 110, 188, 189. disabilities of, retained by Eevised Statutes, 103, 110, 188. how disabilities of, removed, 189. who are, 187. origin of forfeitures because of alienage, 103, 110 189. had formerly no dower, 190. now have dower, when, 196. 202 GENEEAL INDEX. ALIENS — continued. had no curtesy, 190, 196. descent not traced through, 190. devise to, void by E. S., 191. devise to, now valid when, 191. history of statutory removal of disabilities of, 191, 193, 193, 194, 195. mortgages to, 193, 194. purchase by, valid to what extent, 190. trust in lands for, 196. conveyances in trust to, 196, rights of alien children of citizen mother, 191, 195, 196. surrender by the State in property of, cannot defeat vested rights, 196. relieved by treaties oftentimes, 197. ANTICIPATION, RESTEAINT ON, under the E. S., 145. account of, before the E. S., 145. ALODIAL LANDS, in sub-fiefs of New Netherland, 8. the king sole owner of, in England, 26. Forfeited Estates Acts in New York first make, 76. lands granted under great seal of the State in 1787 made, 80. meaning of, 80, 81, 99. subjected to incidents of socage lands, 81, 84, 108, 109, 111. all lands in New York declared, by Eevised Statutes, 98, 110. effect of declaring lands, 98. resemble socage lands after the statute 13 Car. II., c. 34, 99. proprietorship of, more absolute than that of socage lands, 100. independence of the Crown made lands virtually alodial, 100. estates in, are by the common law, 108, 109, 110, 111, 134, 135. AETICLES OF CAPITULATION. See CAPiiTULATioif. ASSEMBLIES, early acts of, in the province of New York, 15, 17, 18, 19. limitation on powers of provincial, 30, 58. acts of, valid until disallowed by the Crown, 33. account of Provincial, 51. right of people to, made permanent, 30. " resolution of, in 1691," its effect on earlier acts of, 31,58,59. 0ENEKAL INDEX. 203 ASSEMBHES— continued. aots of, compiled by William Bradford and others, 61. action of, did not affect the socage tenure in New York, 60. acts of, in conflict with act of Parliament void, 58, note. See Colonial Statutes. BARGAIN AND SALE, valid without enrolment in New York, 88. common form of conveyance in New York, 88, 168. conveyance by, saved by the E. S., 169, 170. BLAOKSTONE, commentaries of, 53. effect of his writings on the law'of New York, 53. his classification of laws, 53. BEEDA. See Tkeatx. CAPITULATION, of New Netherland to the English in 1664:-9. terms of, 14. legal effect of, 15, 17, 60, note, 64. CUSSA VIT PER BIENNIUM, writ of, in New York, 44, 45. CHAEITABLE USES, when all former uses abolished by E. S., charitao.e not enume- rated in the saving clause, 137. maintained at first that such were not abolished by B. S., 137. contrary opinion on the abolition of, upheld, 137. history of contention, after the E. S., 137, 138. new system of, since 1784, 138. the cy pres doctrine, a complement of, 139. a late statutory recognition of the cy pres doctrine, 139. prior statutory application of cy pres to, 140, note, ought to be favored by law, 139, note. CHATTELS, EEAL, contradistinguished from "chattel interests" by E. S., 103. estates for years are. 111. CHANCBEY, COUET OE. See Coukts. " CHAETBE OP LIBEETYS." See Table of Statutes. 204 GENEKAL INDEX. CITIZENS OF THE UNITED STATES, Appendix No. II., 186. may hold lands in New York, 186. who are such, 186, 187. status of, once fixed, presumed to continue, 187. exception in the case of deserters, 187. birth, when presumptive of citizenship, 187. expatriation of, 188. two modes of attaining status of ; what they are, 188. COKE'S COMMENTAKIES, effect of, on the law of New York, 40, 52. do not mention the foreign feudists, 26, note. COLONIAL STATUTES OP NEW YOEK, the " Duke's Laws," when printed, 61. many published by William Bradford, 61, 62. many published by John Baskett, 62. " Dongan Laws" not published, 61. revised by Livingston and Smith, 62. revised by Peter Van Schaack, 63. many, never published, 63. affect the socage tenure very little, 103, note, not contained in the revisions by the State, 79. repealed in 1828, 103. COMMON LAW, of England, how introduced in New York, 22, 24. juridical theories relating to its introduction, 22, 23, 64, 65, 66, 69, 70. meaning of, at times, 51, 104, 105. condition of, in England when introduced here, 52. condition of, in province of New York, 53. uncertainty of the term, 55, 104, 105. sometimes includes statutes, at others not, 105. of England, 47, note, 55. what portion of, in force in New York, 70, 104, burden of proof on him who now asserts that the, is not in force, 70. made the fundamental law of the State, 70, 79, 104, 105. portions of the, codified in the Eevised Statutes, 92, 102. decisions of English courts part of, 89, 133. how far the, applicable to real estate, 104. GENERAL INDEX. 205 COMMON LA.W— continued. uncertainty of, at present, 104, 105, 106. how determined primarily, 105. qualified adoption of, by State constitutions, 106. working rule in New York about, 107. terminology of, still employed, 102, 109. a term in a statute may involve the, 134. includes the decisions of the English courts of equity, 133. CONDITIONS, when annexed to freehold and to estates for years, differ, 39. when invalid on grant in fee, 46. covenants containing, not implied since K. S., 175. when valid if contained in the instrument of grant, 119, 120. said not to be raised by words " yielding and paying" in a de- mise, 45, note. CONDITIONAL PEE. common law, doctrine of, referred to, 26. a fee farm made by the Crown declared to be an estate on condi- tion in De Lancey v. Piepgras, 39, 41. before statute De Bonis, 40. comments on, 39, 41, 44. See Eee Eakm. OONSIDEEATION, not essential that it be expressed in deed at common law, 171. ■ nor essential to be expressed under E. S., 172. seal only prima facie evidence of, now, 173. CONSTKUCTION., See Etjles of Construction and Legal Estates. CONTINGENT EEMAINDEES. See Ebmaindbes. CONVEYANCING, in N. Y. manors inartificial, 33. before the Eevised Statutes, 93, 168. rules relative to, since the Eevised Statutes, 172, 173, 174, 176. COPYHOLD TENUEES, could not exist in the manors of New York, 33. COUETS OP NEW YOEK. Supreme Court, when founded, 108, note. its equitable jurisdiction conferred in 1846, 108, note. exchequer, jurisdiction of, 43, note. 206 GBNEEAL INDEX. COUETS OF NEW YOUK— continued. Court of Chancery, early establishment of, in New York, 51. some account of, in New York, 89, 139-135. Privy Council of England, Court of Appeals for the province of Kew York, 55, note. COVENANTS, in deeds, 174. no particular words necessary to, 175. may be for almost anything, 175. just as applicable to alodial lands as to lands in tenure, 175. running with the land, 130. retention of settled forms of, best, 173. effect of, in " deed poll," 174. none to be implied, 175. this rule applied to grants of terms of years, 175. lineal aad collateral warranties abolished, 175. CEOWN OP ENGLAND, claims New Netherland, 4, 8, 33. at first claims lands as of its own demesne, 10. right of, to grant lands, 10. lands afterward held by the, injure cor once, 10. prerogatives of, 34, 36, 48. grants to Duke of York by, 8, 16. See G-KAN'TS ; Yoek, Duke of ; KiifG of England CUETESY, incident to socage tenure, 135. the four essentials to, 136. actual possession unnecessary to, in N. Y., 89, 136. forfeiture of, 136. survived the Eevised Statutes, 136. not taken away by Married Women's Acts, 136, 137 how affected by divorce, 137. aliens have not, 190. CY PRE8 DOCTEINE, derived from the civil law, 138, note. a complement of charitable or public uses, 139. made systematic in England, 139, note. recent statutory application of, 139. former statutes concerning, 140, note. GENERAL INDEX. 207 CUSTOMS, of New York in regard to conveyances by feme covert, 56. of recording deeds with extra-judicial acknowledgment, 56. DEED, necessary to conveyance in New York by " Duke's Laws," 16. must be sealed, 16. form of, prescribed by " Duke's Laws," 16, 17. feme covert could make, 17. does not express tenure after 13 Car. II., 37. history of, in New York, 16, 19, 168. an ancient institution, 36. effect of Dutch words in, 60. what it meant at common law, 169. called " grant" in E. S., 169. delivery of, made greater feature than formerly, 169. essentials of, under R. 8., 170, 171. to be in writing under the R. S., 170. of freehold must be sealed, 170, 171. rules of construction made applicable to, by R. S., 173, 176. of bargain and sale, valid without enrolment in New York, 87, 168. latter form took the place of lease and release, 88, 168. DEMISE, a "fee farm" not a, 45. grant in fee not a, 41, 45, 118. effect of conveying greater estate in a, than tenant has since E. S., 176. effect of the words " yielding and paying in" a, 45, note. DESCENTS, primogeniture abolished and law of, changed in New York, 73, 79. refers to what acts of devolution, 189. not cast on alien at common law, 194. regulated by E. S. in case of aliens, 195, 196. of the Dutch antenati, 60, notes 63, note 5. DISTRAINT OR DISTRESSES." SeeBxsr. DOWER, incident to socage tenure, 133. definition of dower, 134. what constituted marriage in New York, 88 and note. ' Cf . Act of Assembly, passed March 9th, 1774. 208 GENERAL INDEX, D OWER— continued. estate in, very ancient in New York, 132. declared forfeited by ' ' Duke's Laws" and 13 Edw. I., cap. 34, 123. history of, in New York, 122, 123, 134. how affected by Jones & Varick's revision, 133. dower extended to lands made alodial, 123, 125. jointures bar, 133. how affected by Eevised Statutes, 133, 190, 196. annulment of marriage takes away, 134, 135. remedy for withholding, 135. how affected by divorce, 134. aliens had not, 190. DUTCH, THE, of New Netherland, 4-24. occupation of America, 4. population in New Netherland, 5. law writers, 6, note, patroons in New Netherland, 7 estates of, in New Netherland, 8. number of grants to, 8. under English rule, 13. naturalization of, by the English, 14, 64. capitulation of. See Capitulation. legal effect of certain Dutch words in wills and other legal in- struments, 60. retained their own laws of inheritance, 14. survival of laws of, 65. titles of, in New York, 66, 67. limitations on survivals of laws of, 68, 69, note. See New NETHBRLAiro ; Pateoonts. DUTCH WEST INDIA COMPANY, charter of, 4. colonization by, 4. vested with lands of Netherland, 5. patroon in New Netherland, 6. nature of its estate, 5. sub-infeudation by, 6. grants by, 8. EMINENT DOMAIN, alodial lands in theory more free from right of, 100. unaffected by Eevised Statutes, 101. GENEEAL INDEX. 209 ENGLAND, Crown of, claims New Netherland, 4. disputes Dutcli title to New Netherland, 4. pretension of, to New Netherland reyived, 8. title of, to New York, 22. laws of, in New York, 22. theory of introduction of the laws of, 22. revolution in 1688 and its effect on New York, 20. common law of. 8ee Comjion' Law ; Okown of England ; King of England, and Statutes op England. ENTAIL, meaning of " tail" exemplified by a reference, 26, note, easily broken, 95. abolished in New York, 115. See Estates Tail. entieeties, tenancy by, conveyance to husband and wife creates when, 174. EQUITABLE ESTATES, deemed capable of same limitations as legal estates, 133, 136. annihilated by the E. S., 132, 133. EQUITABLE JUEISDICTION, in England, 129. no complete account of, in N. Y., 130. history of, in New York, 130, 131, 132, 133, 134. ESCHEATS, under the crown, 38. pass to the State, 72. propter defecium sanguinis preserved when tenures abolished, 100, 101, 110. of alodial lands, 190. king took escheated lands free of trusts, 101. vested in the people by constitutional limitation, 101. ESTATES, cannot be created de novo in England except by statute, 109. meaning of, formerly, 109. meaning of, at present, 110. quantity and quality of, 110, 111. how derived, 111. same since E. S. as in days of Littleton, 110, note. 210 GENBEAL INDEX 1E,STATES— continued. How divided by the Eevised Statutes in reference to posses- sion, 112. former limitations of, 113. limitations of, under the Revised Statutes, 113, 114, 116. freehold retained, 111. in reference to their duration, 110, 111. See Legal Estates ; Feb Simple. ESTATES FOR LIFE, retained in alodial lands, 110. no presumption that life estate is intended in " grant" when, 173, 174. ESTATES FOE YEARS, the Revised Statutes retains common law classification of, 110, 118. estates at will are now chattel interests. 111. See Leases. ESTATES IN JOINT TENANCY, not to arise unless declared by conveyance, 79. ESTATES TAIL, " tail" derived from French verb " to cut," 26, note. converted into estates in fee simple, 73, 79. abolition of, accomplished little, 95. abolished, 115. provisions of R. S. relative to, 115, 116. creation of, still effective for some purposes, 116. ESTATE OF TRUSTEE. yS^ee Trustee ; Uses akd Trusts EXECUTORS, take a fee when, 157. powers of sale by, regulated by R. S. , 162. EXPATRIATION, right of, not recognized by the common law, 188. right of, announced by Congress, 188. EXPRESS TRUSTS. See Uses and Trusts. FEALTY, incident to socage tenure, 32, 38. alodial lands free of, 81. when no longer necessary to support distraint, 89. associated with common law remedies, 82, note. GENERAL INDEX. 211 FEE, feodum simplex of Littleton's day, 38. formerly denoted an inheritable feud, 40. then meant estate of inheritance. 111. later common law notion of, adopted in the Revised Statutes, 113. what it now means, 112. carried by grant of an absolute power of disposition, 155. not cut down, when, 156. mortgagee takes, in England, not in New York, 131. passes to executors when, 157. See Fee Simple. FEES CONDITIO]!^ AL. See Conditional Feb. FEE FARM, import of, 40. reliefs not due on, 38. antiquity of, 43. nature of a, 39. classed with estates on condition, 39, 40. but really a fee simple, 41, 44. loose nature of king's grants of a, in New York, 40. grant of, held not to create relation of lord and tenant, 43. aliter when of the king, 39 and notes, held an " estate on condition" in New York, 41, 43, 44. not a demise, 45. discussed in De Lancey v. Piepgras, 39, 41, 43, 45. " reliefs" not due on, 38. reserved quit rents, 39. remedies for rents due on, regulated, 84. FEE SIMPLE, in Duke of York's time, 38. a fee farm a, 41, note. under the Revised Statutes, 103, 111. same thing as " fee simple absolute," 103. difference between fee simple and fee simple absolute indicated, in R. S., 116. an estate of inheritance, notwithstanding tenures abolished, 111. See Fee ; Feb Faem. FEB TAIL. See Estate Tail. FEMES COVERT, estates of, conveyed by deed under act of 1683, 17. when act of 1683 disallowed, her deed by custom, 56- 212 GENERAL INDEX. FEMES COVERT-continued. account of disability of, 136. removal of disabilities of, 137. may now convey direct to the husband, 174. FEOFFMENT AND LIVEEY OP SEISIN, conveyance by means of, practically defeated by "Duke's Laws" of 1664, 16. how affected by Statute of Frauds, 60. conveyance by, declared abolished by K. S., 170. FEUDAL SYSTEM, of the Dutch, 5. a moderate system, 7. of the English, 25. never prevailed in New York, 13, 35, 37, 100. essence of English, 35. development of, 36. English, uninfluenced by foreign feudists, 36. subversion of, 27. had disappeared in England before Duke of York's patent, 27, 38, note, not declared abolished by statute, 12 Car. II., c. 34, 38. survival of, affected by Act Concerning Tenures, 80. declared abolished in New York, 99. rules growing out of, not favored, 90. declared abolished in Constitution of 1846, 100. , Vid. sub nom. Tenures ; Manoes ; Seigniories. FINES AND COMMON RECOVEEIES, barred claims of issue, 26. barred those in remainder and reversion, 36. femes covert conveyed by, at common law, 56. abolished by E. S., 168. FOEFEITED ESTATES ACTS, passed by the State Legislature, 75, 100. FOEFEITUEES, how regulated in New York, 85. for treason, 85. preserved by E. S., 101. not now created by conveyance by tenant for life of greater estate than he has, 136, 176. GENERAL INDEX. 213 FREEHOLD, " estates" retained after tenures abolished, 111. widows' estate in dower a, 134. estate by curtesy, a, 126. " FUTURE ESTATES," under the Revised Statutes those not in possession are, 113. embraced all former " executory devises," " uses," and " re- mainders," 113. See Estates ; Legal Estates. GRANT, in New York by the Crown, secundum jus coronce, 11, 19. effect of, if made by the Crown governors, 30. by the king, how construed, 46. vacated, how, 47, 48. by Crown protected by Constitution of 1777, 74, 80, 81, 83. by Crown protected by federal constitution, 74, 80. what it is under R. S., 169. what it is at common law, 169, note. requisites of a valid, under R. S., 170, 171. what passes by, 173. /See Patents ; Oonvetanoiitg ; Deed, GUARDIANS, in socage, power of, retained when socage tenure abolished, 103. HEIRS. See Rules oe OoiirsTEucTioN. INDEPENDENCE OP THE CROWN, effects of, 73. created no change in private law, 73, 73, 74. INDIAIfS, right of, to soil, 8. presumed to be inops consilii, 8. modern status at, 199, 300. grants from, 6. later laws relating to, 199, 300. INTRODUCTORY REMARKS, 1. JOINT TENANTS. See Estates in Joint Tenancy. JONES AND VARICK'S REVISION. See Laws. KENT AND RADOLIFF'S REVISION. See Laws. 214 GENEEAL INDEX. KING OF ENGLAND, at first claims lands iu America as of his own demesne, 10. possessed injure coroncs, 10. universal occupant, 11, 28. grants New York, 8, 16. sole alodial owner, 26. source of all titles in New York, 28. grantees of, 29. bound by Stat. 13 Car. II., c. 24, 28, 29, 43, note. need not demand rent, 36, note. construction of his grants, 46. grants by, confirmed by the State constitution, 74, 80, 81. how vacated, 47. See Quit Ebnts ; Crown of England ; Gkants. LAND, defined by the common law, 110. LAWS, EEVISIONS OF THE NEW YORK, history of, prior to Independence, 61. incorrectness of Colonial, 62. after Independence, 77. Jones and Varick's, 78, 79, 84. Kent and EadclifE's, 85. Van Ness and Woodworth's, 85. New Revised Laws, 85. 8ee Revised Statutes. LEASE AND RELEASE. usual conveyance in New York before 1788, 88, 168. as mode of conveyance, saved by R. S., 169, 170. LEASES AND LEASEHOLD ESTATES, classified in R. S., 110. tenure subsists in, 116. what they now are, 116. how created prior to Stat, of Frauds in England, 116, 117. how created in New York, 117. only a lease for one year now valid if not in writing, 117. leases of agricultural lands not to be longer than twelve years, 119. rule in regard to urban lands, otherwise, 119. custom in leases of urban lands, 119. express conditions in leases, how far valid, 119, 120. trust " to lease," etc., 142, 143. GENERAL INDEX. 215 LEGAL ESTATES, in province of New York, 16. could be alienated by deed in writing only, 16, 17. this provision antedated the Statute of Frauds (29 Car. II., c. 3), 16, 1?, 19, 50, 78, note. Statute of Frauds, 39 Car. II., c, 3, controlled legal estates in N. Y. iintil Jones and Varick's Eevision, 78, note, by whom created in England, 109. who owner of, 108. by whom created in New York, 109. except for one year must now be in writing under E. S., 117. definition of, 109. Blackstone's definition of, 109. how derived, 109, 110, 111. what they are under the Kevised Statutes, 108. recognized as existing and continuing in alodial lands, 110, 111. quantity and quality of, 108, 110. R. S. divided them into " estates in possession" and " estates in expectancy," 112. " future estates" under R. S., 112. what " future estates" now embrace, 113. validity of " future estates," 113. how long inalienable under E. S., 113, 114. former rules, touching limitations of, 27, 113, 114. limitations of, under E. S., 113. can be now limited only to persons iu being, 114, 150= word " heirs" now unnecessary to pass a fee, 128. new rules of construction concerning, 128. LEGISLATURE. 8ee Assemblies. LIMITATION, a contingent, suspends power of alienation, 112. what, valid at common law, 113, 114. what, valid under the R. S., 113, 114, 115. rules of the R. S. touching effect of certain limitations, 127, 128. LIVERY OF SEISIN, lands could not be conveyed alone by, in New York after " Duke's Laws," 16, 17, 19, 50, 78, note. effect of Statute of Frauds on, 50. conveyance by feoffment with, abolished in New York by Re- vised Statutes, 170. 216 GENBEAL INDEX. LONG ISLAND, easterly end of, not claimed by Dutch, 9. MANOES. See Patkoo2s-s ; Seigniories. created under the Duke of York, 39. the later New York, granted under the Crown government, 30. in New York, were " freehold manors," 31. severance of lands of, 31. of England, 31, note, of Ireland, 31, note. legality of Duke of York's grants to have, in New York, 29, 30. tenure by suit and service in, 29. origin of Pordham, 30. origin of Eensselaerswyck, 30. object of grants to have, 31. in New York made political corporations, 30, 84, note, in New York differ from feudal, 33. franchise of, devisable and descendible, 32. rents in, 32. never adjudicated legal here, 33, 84. inartificial conveyancing within precincts of, 33. tenure in, 39, note, rights of loyal proprietors of, saved at "Independence," 73, 74, 80, 83. "reputed," 84. MAEKIED WOMEN. See Femes Covert. MINES, a prerogative of the Crown, 48. passed to the State of New York, 49. MOETGAGES, former custom among the Dutch, 19. owners of, have no legal estate in New York, 88, 121. otherwise in England, 121. former rule in New York, 121. to be recorded, 16, 19. deeds with defeasance to be recorded as mortgages,' 121. account of the remedy afforded on, 88, 121. to aliens, 193, 194. See Acknowledgment, etc. ; Eecordikg Deeds, etc. ' Of. Act of March 19th, 1774. geneeaL index. 217 NATUEALIZATION, of the Dutch of New Netherland, 14, 15, 63, 64. confers citizenship in the United States, 118. power of, now vested in the Federal Government alone, 189. bars escheats, when, 194. JSTEW NETHEELAND, first named, 4. «xtent of, 4. dispute about title to, 4. population of, 5, 8. laws of, 5. real property in, 5. lands of, vested in Dutch West India Co., 5. grants in, number of, 8. controversy over title to, 4, 9. laws of, collected, 61, note, survival of the laws of, 65. present influence of laws of, 69. laws of, abrogated by 1700, 69. See Dutch ob N'bw Nbtheeland. IfEW YOEK, first called " New Netherland," 4-8. name of, given by the English, 9. history of English title to, 4-24. PATENTS, to Duke of York, first in 1664, 9, 10, 179. to Duke of York, second in 1674, 14, 15, 184. construction of, 11, 12, 38. estate and rights of Duke of York under, merged in his Crown, 19. introduced the socage tenure, 10, 21, 24. note on these patents, 184. See Grant ; Yoek, Duke of. PATEOONS IN NEW NETHEELAND, nature of their seigniories, 6, 7. See Manges ; Seignioeies. PAETITION, of lands first regulated, 60. 218 GENERAL INDEX. PERPETUITIES, possibilities, not probabilities, constitute, 95. struggle over, 113. common law rule about, 113, 114. the rule about, under the Revised Statutes, 113, 114. a trust " to lease" does not now always create a perpetuity, 143. when created, determined by the R. 8., 149. a trust does not always create, 113, 149. a trust for persons not in being does not necessarily create, 150. cannot be created by the medium of a trust, 149. or by the medium of a power in trust, 149, 158. or by the medium of a power not in trust, 165. rule of the R. S. relative to time the appointee takes under a power, 165. POSSESSION, of New York, dispute about, between England and Holland, 4. in new countries, plays important part in devolution of title to lands, 18. POWERS, statutory, of commissioners of forfeitures, 75. of sale in mortgage, 131. what they were before the Revised Statutes, 151, 167. arise out of distinction between potestas disponendi and potestas dandi, 151. classification of, formerly, 151. law of, formerly involved what, 153. deriving effect from the Statute of Uses abolished by R. S., 153. new scheme of, deriving their effect from the R. S., 153. of attorney, not affected by R. S., 153. defined by R. S., 153. new classification of, by the R. S., 153. are still cut out of a fee which embraces all powers, 154. grant of an absolute power of disposition carries a fee in respect of creditors and purchasers, 155. but as to all others, subject to the future estates limited, 155. how, may be granted, 160, 165. who capable of granting, 160. creation or grant of, must be in writing, 160. no form of words necessary to, 161. how surrendered, 160, 167. GENERAL INDEX. 219 TOWERS— continued. if created by deed must be more formal than if created by will, 161. may be Tested in whom, 161. Married Women's Acts do not affect the art. of E. S. on Powers, 163. mode of executing, 162, 163. rules of the E. S. concerning execution of, 163, 164, 165. how fraud affects, 164. concerning grantee of, 165. a lien on real estate only when recorded, 166. except as against persons affected with notice, 166. general, defined, 154. special, defined, 154. beneficial, defined, 154. execution of, not imperatiTe except as to creditors, 156. pass to assignees of insolvents, 156. in trust, 154. See Power in Trust, infra. construction of article of E. S. on, 152, 155. Cutting V. Cutting, 156. purposes for which, may be created since E. S., 155, 161. Of Revocation, reservation of, makes grantor legal owner as to creditors, 156, 160. Of Sale, do not always carry fee to executors, 157. in mortgages, 166. POWEE IN" TEUST, what trusts survive the E. S. as, 142, 146, 153, 157. how, now devolves on the death of grantee, 148, 158. if testator omit to designate grantee, 159. differs from " express trust," how, 153, 157. may be " general" or " special," 154. definition of, 154. grant of, does not carry a fee, 157. power of sale when, 157, 158. is imperative, 158. creation of, is subject to all the principles of equity, 158. no perpetuity can be created by, 158. no indefinite or illegal purpose created by, 158. 220 GENERAL INDEX. POWEE IN TEUST— continued. illusory appointments prevented under, 159. equity can decree execution when, 159. may be reserved by grantor, 159. grantor then termed " grantee" for statutory purposes, 160. effect of recording instrument containing, 166. See Powers. PEIMOGENITUEB, law of, abolished in New York, 73. PEOPEIETAEY GOVBENMBNT, only a feudal seigniory, 11, 12, 35, note 6. merged in the Crown, 19. PUECHASB, what it means in the law of land, 189. QUA.ETEE SALES, reservation of, invalid in New York, 46. QUIT EENTS, payment of, to Duke of York, 13. nature of, 35, 40. amount of, 35. commuted, 35. show palatine origin of province, 35, note. difficulty in collecting the king's, in New York, 42, 43. reservation of, does not necessarily import a demise, 41. king's remedy for collection of,' 42, 44, 45. early remedy for collection of, 43. collection of, by statute,'' 43. purchasers of, from Crown, 46. remedy of purchasers of, 46. passed to the State of New York, 35, note 8, 72, 81. alodial lands free of, 81. after their abolition no further need of tenures, 110. EECOEDING DEEDS AND OTHEE CONVEYANCES, " Duke's Laws" relating to, 16. subsequent acts on, 18, 19, 87, 171, 177. laws of the province on, 56, 57.' • The reader will also compare c. 53, Laws of 1775. » Ibid. ' Let the reader compare also recitals in c. 51, Laws of 1775. GENEEAL INDEX. 221 RECOKDING DEEDS AND OTHER CONVEYANCES— cow- tinued. early effect of priority in, 60. history of Recording Acta in New York, 86. mortgages to be recorded, 16, 18, 19, 87. influence of English decisions on the Acts relative to, 86, 87. deeds must be recorded, when, 171, 177. instrument creating, granting, or assigning power must be re- corded when, 160, 166. conveyance or declaration of trust in lands to be recorded, when, 148. a complement of modern conveyancing, 177. RELIEPSi- survived the Stat. 12 Car. II., c. 34, 32, 38. what they were, 32, 38. not due on fee farm, 38. not due on alodial lands, 81. REMAINDERS, contingent, before the R. S., 96. could not be barred, when, 96. if contingent, rendered land inalienable, 96. could not formerly be limited on a term of years, 96. or after lease at will, 96. under " Rule in Shelley's Case," 96. term " remainder" extended by R. S., 111. now included in " future estates," 113. when limited after a " fee tail" validated by R. S., 115. RENT, connected with socage tenure, 38. not due on feudal or military tenures, 40, note. reserved by Crown, said to make an " estate on condition," 39. seek, what, 39, note. service, what, 39, note. charge, what, 41, note. reservation of, not always a sign of estates for years, 118. after Stat, of Quia Emptores, no subjects could reserve a rent in England as incident to tenure only, 41, 118. exception by license of Crown, 34. reservation of perpetual, still valid in urban alodial lands, 119. 222 GENERAL INDEX. KENT —continued. perpetual, reserved on grant of agricultural lands, invalid since 1846, 119. pre-existing and future, always saved when tenures were de- clared reformed or abolished, 27, 81, 82, 83, 98, 100, 120. distresses for, abolished in the year 1846, 120. distresses for, saved by " Act Concerning Tenures," 81, 82, 89. remedies for, 120. recovery of,' 120. recovery of, on fee farm grants regulated, 84. devisable, descendible, and assignable, 120. issuing out of alodial lands preserves qualities of rent issuing out of socage lands, 120. See Quit Eents ; Feb Fakm. EEPEESENTATIVB GOVEENMENT, introduced in New York, 17, 20. See Assemblies. EEVEESIONS, none on fee farm grants, 43. what they now axe, 112. EEVISED STATUTES OF NEW YOEK, external phases of, considered, 91. basis of the present law of real property, 91. adopted in Michigan and elsewhere, 91. arranged by chapters, 92. account of their origin, 91, 92. conditions of the law before the, 93, 94. Mr, Humphrey's plan of revising socage tenure, 92, 93. " notes" on, by revisers, 97. construction of, 100, 102, 103. scheme of, 113, 141, 150. EBVOLUTION IN AMEEICA, effect of, on private rights, 72, 76. did not affect Crown grants, 74. juristic status of, 75. EEVOLUTION OF 1688 IN ENGLAND, effect of, on titles in New York, 20. 'For remedies prior to "Independence," cf. Act of Assembly, passed March 9th, 1774. GENERAL INDEX. 223 RULES OF CONSTRUCTION, rule in " Shelley's Case" reversed, 96-138, 173. word " heirs" now unuecessary to pass a fee, 138, 173. grant or devise to pass all estate unless intent to pass less ap- pear, 138. nothing passes by " grant" except what is described, 173. rules of the R. S. applicable to grants, 176. SEAL, essential to grant of freehold, 170, 171. what it now is, 171. now only prima facie evidence of consideration, 173. SEIGNIORIES, of West India Company, 5. of Dutch patroons, 6, 7. proprietary government a feudal seigniory, 11, note 6, 35. tenure of proprietary's, afEected by Stat. 13 Oar. II. , 39, 30. of Rensselaerswyck, 30. the king's, vested in the State of New York, 73, 76, 79, 80, 190. of New York manor proprietors never adjudicated legal, 33, 84. if valid, then tenure of the lord of the manor, 39, note. " Independence" vested, of all lands in people of the State, 73. effect of Independence on, 79, 80, 84. See Manges. SEISIN, feudal meaning of, 45, note. later meaning, 45, note. what it now means in New York, 111, note. SERVICES, reservation of, since Stat. 13 Car. 11., c. 34, means socage ser- vices, 98. SHELLEY'S CASE, RULE IN, stated, 96. reversed by Revised Statutes, 138. SOCAGE TENURE. See Tenure in Free and Common Socage. STATES GENERAL OF HOLLAND, claim " New York," 4. octroi, or charter to Dutch West India Company, 4. 224 GENEEAL INDEX. STATUTES OF ENGLAND, how extended to New York, 20. part of " common law," 47, note. what extended to New York, 54. those declaratory of the common law extended here, 54. uncertainty about extension of, 54, 55. when New York named in the act bound by it, 55. uncertainty about extension of, put an end to, 77. extending to New York, roTised after Independence, 77. what ones so revised, 78. residue of, repealed after their redaction in Jones and Varick's Eevision, 77. See Table oe Statutes. SUPEESTITIOUS USES, in the province of New York, 139, note. under the Federal Constitution and that of the State, now no such thing as, 140. litigations over, 140. SUPEEMB COUET OF NEW YOEK. See Courts. TENANTS BY THE OUETESY. See Curtesy. pedis possessio, or actual possession, unnecessary to, 89. TENANTS IN COMMON, might maintain joint ejectment, when, 89. TENUEE, definition of, 79, note, 80, 99. not abolished by R. S., 116. feudal tenures only abolished, 99. right of eminent domain not incidental to, 101. still subsists in a term of years, 116. TENUEE IN FEEE AND COMMON SOCAGE, introduced in New York by force of the Duke of York's patents, 10, 16, 21, 34, 25, 38, 52. binding on the Crown, 19, 28, 29, 91, note, 129. Dutch tenures converted into, 13, ]4. after Duke of York's accession still binding on the Crown, 19, 28, 29, 91, 123, note, development of, in England, 26. the best of the ancient tenures, 37. military or feudal tenures converted into, in England, 27. GENERAL INDEX. 225 TENURE IN PEEE AND COMMON SOGAQ^E,— continued. tenant by, practically owned the soil, 37, 50. of the king an anomaly, 36. due to the Statute 13 Car. IT., c. 24, 13, 37, 91. earlier instances of this tenure, 38. incidents of, after the Statute 13 Car. II., c. 24, 14, 21, 32, 38. not necessarily expressed in deeds after Stat, 13 Car. II., c. 34, 37. incidents of, in New York same as in England, 63, 54, 79, 80, 123, 125. law of, very little afEected by Independence of the Crown, 51, 73, 79. " Act Concerning Tenures" saves " socage rents and services," 79, 81. review of the " Act Concerning Tenures," 82. services thus reserved also saved by K. S., 98. very influential on the law of alodial lands, 98. a fiction of law after Independence of the Crown, 100. law of, little afEected by colonial statutes, 60, 103, note, guardians in socage retained when feudal tenures abolished by E. 8., 103. retained after Independence, 109, 110, 111. TENURE IJSr GAPITE, Duke of York would have held New York by, except for Stat. 13 Car. II., c. 34, 12, 37. TENURES IN NEW NETHERLAND, of Dutch West India Company, 6. converted into socage tenures, 13, 14. presumption that all the, were changed to socage tenures, 14, 81, note. TENURE BY FRANKALMOIGN, never existed in New York, 91. TERMS OE YEARS, anomalous estates at first, 45. See Leases AifD Leasehold Estates. TIDE WATERS, relations of the Crown to, 12, 49. 226 GENERAL INDEX. TITLE TO KEAL PEOPEETY IN NEW YOEK, of West India Company, 4. of Dutch colonists, 5, 6, 8. of England, 10, 15, 22, 68. present effect of deductions of, from the Dutch authorities, 8, 65, 66, 67. legal effect of Dutch words in conveyances and instruments of, 60. originate either from the Duke of York or the Crown directly, 11, 68. effect of Duke of York's accession on, 19, 30, 35. effect of the flight of James II. and English Eevolution on, 20. King of England, source of all, 28, 68. non-manorial lands, 34. effect of American Independence on, 72, 73, 74, 76, 109. See Grant. TITLE OP EUEOPEANS TO NEW YOEK, theory of, founded on Eoman law, 3. discovery and occupation must concur to give title to Euro- pean sovereign, 3. TEEATY, of Breda, 9, 63. of Westminster, 16, 63, 184. often regulates rights to real property after War of Indepen- dence, 75. regulates right of aliens oftentimes, 197. TEUSTS, king took escheated lands free of all trusts, 101. this rule changed hy E. S., 101. See Uses astd Trusts. TEUSTEES, take legal title under E. S., when, 142. their estate not enlarged hy E. S., 147. devolution of legal title on death of, 148. appointment of, not material to the creation of a trust, 186. every conveyance of, in contravention of trust void, when, 145. mortgages by, 146, note. See Uses akd Trusts. USES, jurisdiction of lord high chancellor over, 50. all abolished except those saved by E. 8., 129, 170. GENERAL INDEX. 227 JJS^S— continued. distinction between uses and trusts referred to, 150, note 4. owed their modern operation to Statute of Uses, 96. former uses confirmed by K. S., 141. deed to declare, not prevented by E. S., 160. See Uses and Trusts. USES AND TRUSTS, jurisdiction of the lord high chancellor over, 50, 129. jurisdiction of the chancellor in New York over, 129-133. all former, declared abolished by the Eevised Statutes, 137. trusts not on a good foundation until Lord Nottingham's time, 134. trusts, how classified before the Revised Statutes, 135. restrictions on trusts before the Revised Statutes, 135. trusts in lands, to be in writing, 136, 148, 149, 160. trusts, definition of, valid, 136. trusts, changes effected in the law of, by the Revised Statutes, 137, 142, 150. public uses. See Chakitable Uses. superstitious use. See Superstitious Uses. resulting trusts abolished by R. S. in certain cases, 140. resulting trusts survive the R. S., when, 140, 141. trusts arising ex maleficio survive the R. S., 141. passive trusts intended to be abolished by R. S., 141, 146, 150. certain uses vested in possession by the R. S., 141. former uses confirmed, 141. the trusts which survived the R. S. are called " Express Trusts," 143. intent to create, not presumed, when, 146, 149. other trusts survive as " powers in trust," 142. See Power ts Trust. express trust purposes discussed, 143, 143, 144. trust " to receive and pay over," history of, 144. when trusts renders estate inalienable, 149. a trust for persons not in being, 150. no particular language required to create an express trust in lands, 148. in a devise, the words *' in trust" are not now conclusive of an intention to create a trust, 137. no perpetuity can be created by means of a trust, 149. when creation of a trust renders estate inalienable, 149. 228 GENKEAL INDEX. USES AND TBJJSTS— continued. the enumeration of express trusts in E. S. has not abridged owner's /ms disponendi, 146. effect under E. S. of joining valid and invalid trust purposes in the same settlement, 146, 147. beneficiary of express trust, takes no estate under E. S., 147. his interest now purely equitable, 147, 148. beneficiary may not now assign interest in trust, when, 148. effect of settler's authorizing beneficiary to assign same, 148. creditors may reach surplus income of beneficiary, when, 145. execution of a power of appointment does not now make trust estate assets quoad beneficiary's creditors, 145. trustee's sale or disposition of trust estate, when void by E. S., 145, 149. trustee may lease, when, 143. trustee may mortgage, how, when, 143, 146, note, if trustee dies, the trust estate now vests in court, when, 148. estate of trustee, 147. estate of trustee, when inalienable, 145, 146, 149. trustees should underwrite acceptance on conveyance to them, 174. VACATING CEOWN GEANTS, 47. VAN NESS AND WOODWOETH'S EEVISION. See Laws, VENIA TE STANDI, patroons have in New Netherland, 7. WAEEANTIES, lineal and collateral, abolished in New York, 175. WEST INDIA COMPANY. See Dutch "West In-dia Company. "WESTMINSTEE. See Teeatt. WILLS, Dutch law of, 7, 18, 60, note, 67. patroons could make, 7. English law of, introduced in 1664, 18, 73. regulated by Statute of Frauds, 73. further regulated by 25 Geo. II., c. 6, 73. YOEK, DUKE OF, first grant to, from Charles II., 8, 179. nature of grant to, 9, 10, 11. GENEKAL INDEX. 229 YORK, DUKE OF— continued. rivers, streams, havens, etc., passed under grants to, 13, 49. second grant to, 11, 15. effect of second grant to, 16. Statute of Quia Emptores applied to grantees of, 34, 35, 88. ascended the throne as James II., 19. legal effect of accession of, on New York, 19. grants of, to have manors in New York, 39, 30. laws of, known as " Duke's Laws," 13, 16. Laws of, put in force generally, 16. ^liiii m