S:S- » is'^\N;y^'\viwy - T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW BROWN CUNNINGHAM Inc. 204 So. Spring St. MU. 8614 i CASES ON THE LAW OF REAL PROPERTY SELECTED BY Prof. JASPER C. GATES Detroit College of Law, Detroit, Mich. St. Paul, Minn. WEST PUBLISHING CO. 1898 Copyright, 1898, BY WEST PUBLISHING COMPANY. T h TABLE OF CONTENTS. I. -WHAT IS REAL PROPERTY. Minerals. Page Goodard v. Winchell 3 Trees and Crops. Kingsley v. Holbrook 6 Carney v. Mosher 9 Riparian Proprietors. Trustees of Schools v. Schroll 10 Illinois Cent. R. Co. v. State of Illinois lo Howe V. Andrews 2(5 Mastenbrook v. Alger 28 Smith V. Youmans 30 TJndergronnd 'Waters. Ocean Grove Camp Meeting Ass'n v. Com- missioners of Asbury Park 34 Willis V. City of Perry 36 Border Trees. Lyman v. Hale 41 Robinson v. Clapp 43 Things Growing on Land. Brackett v, Goddard 52 Emblements. Graves v. Weld 53 Bradley v. Bailey 55 Fixtures. Walker v. Sherman 57 Lassell v. Reed 65 Harris v. Scovel 67 Smith V. Blake 68 Michigan Mut. Life Ins. Co. v. Cronk 69 Equitable Conversion. Craig V. Leslie 70 Bolton V. Myers 75 II. ESTATES IN REAL PROPERTY. (a) AS TO QUANTITY. Fee Simple and Fee Tail. Adams v. Ross 76 Brown v. Addison Gilbert Hospital 79 Estates per Autre Vie. Mosher v. Yost Page . 91 Barr v. Merger. Boykin v. Ancrum Conventional Life Estates. 80 83 iMerritt v. Scott Watkins v. Green 85 Wooster v. Cooper 87 Incumbrances. Foster v. Hilliard 88 GATES.R.P. (iii) Legal Life Estates. Curtesy. Galloway 93 Dower. Thompson v. Morrow 96 Stoughton V. Leigh 98 Stanwood v. Dunning 1(W Woods V. Wallace Vyi PuUing V. Pulling's Estate 104 Hodges V. Phinuey 106 Moore v. Harris 107 Free v. Beatley 109 McKelvey v. McKelvey 110 Homestead. Black v. Singley. Ill Hoffman v. Buschman IV.i Myers v. Weaver 114 Hitchcock V. Misner 115 Jointure. Caruthers v. Caruthers 116 Taylor v. Taylor 118 Taft V. Taft 120 Thompson v. Tucker-Osbom 122 Wciate. Keeler v. Eastman 12 Cook V. Hammond (Fed. Cas. No. 3,159, 4 Mason, 467) 187 Craig V. Leslie (3 Wheat. 563-576) . tO Crowley v. C. N. Nelson Lumber Co. ([Minn.] 69 N. W. 321) 260 Dean v. Goddard (56 N. W. 1060, 55 Minn. 290) 284 Defreese v. Lake ([Mich.] 67 N. W. 505) . . 310 Dyer v. Clark (5 Mete. [Mass.] 562) 231 Earnhart v. Earnhart (26 N. E. 895, 127 Ind. 397) 214 Eipper v. Benner ([Mich.] 71 N. W. 511) . . 165 Foster v. Hilliard (Fed. Cas. No. 4,972, 1 Story, 77) 88 Free v. Beatley (54 N. W. 910, 95 Mich. 426) 109 Fuller, Ex parte (Fed. Cas. No. 5,147, 2 Story, 327) 301 Gaskell v. Viquesney (23 N. E. 791, 122 Ind. 244) 159 George v. Kent (7 Allen. !(>) 158 Goldsmith v. Goldsmith (39 N. E. 1067, 145 N. Y. 313) 174 Goodard v. Winchell (52 N. W. 1124, 86 Iowa, 71) 3 Graves v. Weld (5 Barn. .S: Adol. 10.->) 53 Gray v. Crockett (10 Pac. 452, 35 Kan. 66) ST.". GATES,R.P. Page Hamilton v. Hall's Estate ([Mich.] 69 N. W. 484) 167 Harilage v. Stroope (24 S. W. 490, 58 Ark. 303) 211 Harris v. Scovel (48 N. W. 173, 85 Mich. 32) 67 Helm V. Boyd (16 N. E. 85, 1^ 111. 370) ... 150 Henderson t. Hunter (59 Pa. St. 335) 149 Hitchcock V, Misner ([Mich.] 69 N. W. 226) 115 Hodges V. Phinney ([Mich.] 64 N. W_. 477] 106 Hoffman v. Buschman (55 N. W. 458, 95 Mich. 538) 113 Hopkins v. Hopkins (Cas. t. Talb. 44) 221 Horner v. Den (25 N. 3. Law, 106) 130 Hovey v. Nellis (57 N. W. 255, 98 Mich. 374) 198 Howe V. Andrews (26 Atl. 394, 62 Conn. 398) 26 Hunt V. Hall (37 Me. 363) 197 Huntington v. Parkhurst (49 N. W. 597, 87 Mich. 38) 140 Illinois Cent. R. Co. v. State of Illinois (13 Sup. Ct. 110, 146 U. S. 387) 13 Ives V. Allyn (13 Vt. 629) 300 Jackson v. Gary (16 .Tohns. 302) 16.3 .Tones v. Wagner (66 Pa. St. 429) 241 Keeler v. Eastman (11 Vt. 293) 12<^. Kingsley v. Holbrook (45 N. H. 313) 6 Kohl v. United States (91 U. S. 367) 245 Ladd V. Brown (53 N. W. 1048, 94 Mich. 136) 143 Lassell v. Reed (6 Greenl. 222) 65 Lauer, Appeal of (23 Atl. 996, 148 Pa. St. 23<)) ._. . 191 L'Etourneau v. Henquenet (50 N. W. 1077, SO Mich. 428) 200 Licht V. Nellis (57 N. W. 2.55, 98 Mich. .374) 198 Loomis V. Wilbur (Fed. Cas. No. 8,498, 5 Mason, 13) 127 Lovingston v. St. Clair County (64 111. oG) . . 289 Lyman v. Hale (11 Conn. 177) 41 McKelvey v. McKelvey ([Mich.] 70 N. W. 582) 110 Mastenbrook v. Alger ([Mich.] 68 N. W. 213) ; 28 Merritt v. Scott (81 N. C. 385) 83 Michigan Mut. Lite Ins. Co. v. Cronk (52 N. W. 10:35. 93 Mich. 49) 69 Miller v. Meers (40 N. E. 577, 155 111. 284) 255 Moore v. Crawford (9 Sup. Ct. 447, 130 U. S. 122) 177 Moore v. Harris (4 S. W. 430. 91 Mo. 616) 107 Moore v. Robbius (96 U. S. 5:;<)) 249 Mosher v. Yost (33 Barb. 2771 91 Mvers v. Weaver (59 N. W. 810, 101 Mich. 477) 114 Neligh V. Michenor (11 N. J. Eq. 539) 153 Newman v. Rutter (,8 Watts, 51) 137 Ocean Grove Camp-Moeting Ass'n v. Com- missioners of Asburv Park (3 Atl. 168, 40 N. J. Eq. 447) 34 Pendill v. Marquette Coun.y Agricultural Soc. (55 N. W. 384, 95 Mich. 491) 266 Perkins V. Nichols (11 Allen, 542) 173 (V) vi CASES REPORTED. Page Post T. Pearsall (22 Wend. 425) 234 Price V. Hallett ([Mo. Sup.] 38 S. W. 451) 295 Pulling V. PuUing's Estate (56 N. W. 765, 97 Mich. 375) 104 Rice V. Rice ([Mich.] 65 N. W. 103) 184 Robinson v. Clapp (32 Atl. 939, 65 Conn. 365) 43 Russell V. Fabyan (34 N. H. 218) 133 Russell's Appeal (15 Pa. St. 319) 156 Sacheverel v. Frogate (1 Vent. 161) 243 Salem Nat. Bauk v. White (42 N. E. 312, 159 111. 136) 308 Sherin v. Brackett (30 N. W. 551, 36 Minn. 152) 283 Silva V. Hopkinson (41 N. E. 1013, 158 111. 386) 215 Slegel V. Herbine (23 Atl. 996, 148 Pa. St. 236) 191 Smith V. Blake (55 N. W. 978, 96 Mich. 542) 68 Smith V. Youmans ([Wis.] 70 N. W. 1115) 30 Spring V. Randall ([Mich.] 64 N. W. 1063) 185 Stanwood v. Dunning (14 Me. 290) 100 State of Illinois v. Illinois Cent. R. Co. (13 Sup. Ct. 110, 146 U. S. 387) 13 Stoughton V. Leigh (1 Taunt. 402) 98 Sumner v. Seaton (19 Atl. 884, 47 N. J. Eq. 108) 277 Taft V. Taft (40 N. E. 860, 163 Mass. 467) 120 Tatum V. City of St. Louis (28 S. W. 1002, 125 Mo. 647) 292 Taylor v. Taylor (33 N. E. 532, 144 111. 436) 118 Page Thompson v. Morrow (5 Serg. & R. 2S9). . 96 Thompson v. Tucker-Osborn ([Mich.] 69 N. W. 730) 122 Thoruburg v. Wiggins (34 N. E. 999, 135 Ind. 178) 228 Thurston v. Hancock (12 Mass. 220) 238 Trask v. Graham (50 N. W. 917, 47 Minn. 571) 136 Trustees of Schools v. Schroll (12 N. E. 243, 120 111. 509) 10 AValker v. Sherman (20 Wend. 636) 57 Warner v. Bennett (31 Conn. 468) 147 Watkins v. Ureen (60 N. W. 44, 101 Mich. 493) 85 Webster v. Peet (56 N. W. 558, 97 Mich. 326) 128 Welbon v. Welbon ([Mich.] 67 N. W. 338) 270 Whitaker v. Erie Shooting Club (60 N. W. 983, 102 Mich. 454) 287 White V. Rice ([Mich.] 70 N. W. 1024) 171 Whitesides v. Cooper (20 S. E. 295, 115 N. C. 570) 208 Willis V. City of Perry (60 N. W. 727, 92 Iowa, 297) 36 Wineman v. Phillips (53 N. W. 168, 93 Mich. 223) 144 Witham v. Brooner (63 111. 344) 162 Withy V. Mumford (5 Cow. 137) 268 Woods V. Wallace (10 Fost. 384) 102 Wooster v. Cooper (33 Atl. 1050, 53 N. J. Eq. 682) 87 Wyman v. Brown (50 Me. 139) 223 ILLUSTRATIVE CASES ON THE LAW OF REAL PROPERTY. GATES,K.P. (1)* WHAT IS REAL PROPERTY. GOODARD V. WINCIIELL. (52 N. W. 1124, 86 Iowa, 71.) Supreme Court of Iowa. Oct. 4, 1892. Appeal from district court, Winnebago county; John C. Sherwin, Judge. Action in replevin. The subject of the con- troversy is an aerolite. In the district court the cause was tried without the aid of a jury, and the court gave judgment for the plaintiff, from which the defendant appealed. C. B. Elliot, C. H. Kelley, and W. S. Pat- tee, for appellant. Peters & Fisher and W. E. Bradford, for appellee. GRANGER, J. The district court found the following facts, with some others, not im- portant on this trial: "That the plaintiff, John Goodard, is, and has been since about 1857, the owner in fee simple of the north half of section No. three, in township No. ninety-eight, range No. twenty-five, in Winne- bago county, Iowa, and was such owner at the time of the fall of the meteorite herein- after referred to. (2) That said land was prairie land, and that the grass privilege for the year 1S90 was leased to one James Elick- son. (3) That on the 2d day of May, 1890, an aerolite passed over northern and north- western Iowa, and the aerolite, or fragment of the same, in question in this action, weigh- ing, when replevied, and when produced in court on the trial of this cause, about 66 pounds, fell onto plaintiff's land, described above, and buried itself in the ground to a depth of three feet, and became imbedded therein at a point about 20 rods from the sec- tion hne on the north. (4) That the day after the aerolite in question fell it was dug out of the gi-ound with a spade by one Peter Hoag- land, in the presence of the tenant, Elicksou; tliat said Hoaglaud took it to his house, and claimed to own same, for the reason that he had found same and dug it up. (5) That on May 5, 1890, Hoagland sold the aerolite in suit to the defendant, H. V. Winchell, for $105, and the same was at once taken posses- sion of by said defendant, and that the pos- session was held by him until same was taken under the writ of replevin herein; that de- fendant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south of Hoagland's land. * * * (10) I find the value of said aerolite to be one hiradred and one dollars ($101) as verbally stipulated in open court by the parties to this action; that the same weighs about 66 pounds, is of a black, smoky color on the outside, showing the effects of bent, and of a lighter and darkish gray color on the inside; that it is an aerolite, and fell from the heavens on the 2d of May, 1890; that a member of Hoag- land's family saw the aerolite fall, and di- rected him to it." As conclusions of law, the district court found that the aerolite became a part of the soil on which it fell; that the plaintiff was the owner thereof; and that the act of Hoagland in removing it was wrongful. It is insisted by appellant that the conclusions of law are erroneous; that the enlightened demands of the time in which we live call for, if not a modification, a Uberal construction, of the ancient rule, "that whatever is affixed to the soil belongs to the soil," or, the more modern statement of the rule, that "a perma- nent annexation to the soil, of a thing in itself personal, makes it a part of the really." In behalf of appellant is invoked a rule alike ancient and of undoubted merit, "that of title by occupancy;" and we are cited to the language of Blackstone, as follows: "Occu- pancy is the taking possession of those things which before belonged to nobody;" and "whatever movables are found upon the sur- face of the earth, or in the sea, and are un- claimed by any owner, are supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or find- er." In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules, and note, if at all, wherein the facts of this case should distin- guish it. The rule sought to be avoided has alone reference to what becomes a part of the soil, and hence belongs to the owner thereof, because attached or added thereto. It has no reference whatever to an independent ac- quisition of title; that is, to an acquisition of property existing independent of other prop- erty. The rule invoked has reference only to property of this independent character, for it speaks of movables "found upon the surface of the earth or in the sea." The term "mov- ables" must not be construed to mean that which can be moved, for, if so, it would in- clude much known to be realty; but it means such things as are not naturally parts of earth or sea, but are on the one or in the other. Animals exist on the earth and in the sea. but they are not. ui a proper sense, parts of either. If we look to the natural formation of the earth and sea, it is not difficult to understand what is meant by "movables," within the spirit of the rule cited. To take from the earth what nature has placed there in its formation, whether at the creation or through the natural processes of the acquisi- tion and depletion of its particular parts, as I we witness it in our daily observations, wheth- er it be the soil proper or some natural de- posit, as of mineral or vegetable matter, is to take a part of the earth, and not mova- bles. If, from what we have said, we have in mind the facts giving rise to the rules cited, we may well look to the facts of this case to properly distinguish it. The subject of the dispute is an aerolite, of about 06 pounds' weight, that "fell from the heavens" on the land of the plaintiff, and was found three feet below the surface. It came to its posi- tion in the earth through natural causes. It was one of nature's deposits, with nothing WHAT IS REAL PROPERTY. in its material composition to make it foreign oi iihnaturnl to the soil. It was not a mov- able thing "on the earth." It was in the earth, and in a very significant sense im- movable; that is, it was only movable as parts of earth are made movable by the hand of man. Except for the peculiar manner in which it came, its relation to the soil would be beyond dispute. It was in its substance, as we understand, a stone. It was not of a character to be thought of as "unclaimed by any owner," and, because unclaimed, "suppos- ed to be abandoned by the last proprietor," as should be the case under the rule invoked by appellant. In fact, it has none of the characteristics of the property contemplated by such a rule. We may properly note some of the particu- lar claims of appellant. His argument deals with the rules of the common law for acquir- ing real property, as by. esciiear. occupancy, prescription, forfeiture, and ahenatiou, which it is claimed were all the methods known, barring inheritance. We need not question the correctness of the statement, assuming that it has reference to original acquisition, as distinct from acquisitions to soil already owned, by accretion or natural causes. The general rules of the law, by which the owners of riparian titles are made to lose or gain by the doctrine of accretions, are quite familiar. These rules are not, however, of exclusive application to such owners. Through the ac- tion of the elements, wind and water, the soil of one man is taken and deposited in the field of another; and thus all over the country, we may say, changes are constantly going on. By these natural causes the owners of the soil are giving and taking as the wisdom of the controlling forces shall determine. By these operations one may be affected with a substantial gain, and another by a similar loss. These gains are of accretion, and the deposit becomes the property of the owner of the soil on which it is made. A scientist of note has said that from six to seven hundred of these stones fall to our earth annually. If they are, as indicated in argument, departures from other planets, and if among the planets of the solar system there is this intercliange. bearing evidence of their material composition, upon what prin- ciple of reason or authority can we say that a deposit thus made shall not be of that class of property that it would be if originally of this planet and in the same situation? If these exchahges have been going on through the countless ages of our planetary system, who shall attempt to determine what part of the rocks and formations of especial value to the scientist, resting in and upon the earth, are of meteoric acquisition, and a part of that class of property designated in argument as "unowned things," to be the property of the fortunate finder instead of the owner of the soil, if the rule contended for is to obtain? It is not easy to understand why stones or balls of metallic iron, deposited as this was, should be governed by a different rule than obtains from the deposit of boulders, stones, and drift upon our prairies by glacier action; and who would contend that these deposits from floating bodies of ice belong, not to the owner of the soil, but to the finder? Their origin or source may be less mysterious, but they, too, are "telltale messengers" from far- off lands, and have value for historic and sci- entific investigation. It is said that the aerolite is without adap- tation to the soil, and only valuable for sci- entific purposes. Nothing in the facts of the case will warrant us in saying that it was not as well adapted for use by the owner of the soil as any stone, or, as appellant is pleased to denominate it, "ball of metallic iron" That it may be of gi-eater value for scientific or other puiposes may be admitted, but that fact has little weight in determining who should be its owner. We cannot say that the owner of the soil is not as interested in, and would not as readily contribute to, the great cause of scientific advancement, as the finder, by chance or otherwise, of these silent mes- sengers. This aerolite is of the value of $101, and this fact, if no other, would remove it from uses where other and much less valua- ble materials would answer an equally good purpose, and place it in the sphere of its greater usefulness. The rule is cited, with eases for its support, that the finder of lost articles, even where they are found on the property, in the build- ing, or with the personal effects of third per- sons, is the owner thereof against all the world except the true owner. The eon-ect- ness of the rule may be conceded, but its ap- plication to the case at bar is very doubtful. The subject of this controversy was never lost or abandoned. Whence it came is not known, but, under the natural law of its government, it became a part of this earth, and, we think, should be treated as such. It is said by appellant that tliis case is unique; that no exact precedent can be found; and that the conclusion must be based largely upon new considerations. No similar ques- tion has, to our knowledge, been determined in a court of last resort. In the American and English Encyclopedia of Law (volume 15, p. 388) is the following language: "An aero- lite is the property of the owner of the fee upon which it falls. Hence a pedestrian on the highway, who is first to discover such a stone, is not the oAvner of it; the highway being a mere easement for travel." It cites the case of Maas v. Amana Soc, 16 Alb. Law J. 76, and 13 Ir. Law T. 381. each of which periodicals contains an editorial notice of such a case having been decided in Illinois, but no reported case is to be found. Ander- son's Law Dictionary states the same rule of law, with the same references, under the subject of "Accretions." In 20 Alb. Law J. 299, is a letter to the editor from a corres- pondent, calling attention to a case determin- ed in France, where an aerolite found by a MINERALS. peasant was held not to be the property of the "proprietor of the field," but that of the find- er. These references are entitled, of course, to slight, if any, consideration; the informa- tion as to them being too meager to indicate the trend of legal thought. Our conclusions » re announced with some doubts as to their correctness, but they arise not so much from the application of known rules of law to proper facts as from the absence of defined rules for these particular cases. The interest manifested ha.s induced us to give the case careful thought. Our conclusions seem to us nearest analogous to the generally accepted rules of law bearing on kindred questions, and to subserve the ends of substantial justice. The question we have discussed is contrulliug in the case, and we need not consider others. The judgment of the district court is af- firmed. 6 WHAT IS REAX, PROPERTY. KINGSLEY V. HOLBROOK.i (45 N. H. 313.) Supreme Court of New Hampshire. Cheshire. July, 1864. Wheeler & Faulkner, for plaintiff. Mr. Lane, for defendant. SARGENT, J. In Massachusetts and Maine and some other states, the courts have held, as stated in 1 Greenl. Ev. § 271, and note, that a sale of trees growing upon land is not a sale of I'cal estate, unless it is contemplated that they shall remain so as to receive profit and growth from the growing surface of the land; unless the vendee was to have some beneficial use of the land in connection with the trees. Where such is the case, then a sale of standing trees is a sale of an interest in land, otherwise not. The authorities cited in the plaintiff's brief are in favor of the same view, This doctrine had its origin, as it would seem, from 1 Ld. Raym. 182, where Treby, C. J., re- ported to the other judges that the question had arisen before him at nisi prius, whether a sale of timber, growing upon land, ought to be in writing by the statute of frauds, or might be by parol; and that he had ruled that it might be by parol, because it is but a bare chattel; and it is said that to this opinion Powell, J., agreed. Since then the decisions have been very con- flicting both in England and in this country. Many decisions in regard to growing crops are quoted as bearing upon the question as to whether growing trees are to be considered per- sonal property, or an interest in land. These decisions are no less conflicting, however, and aid us very little in establishing any general rule based upon principle. But we find this distinction noted in Dunne v. Ferguson, cited in Stephens, N. P., 1971, from 1 Hayes, 542. The case was trover for turnips. In October, 1830, the defendant sold to the plaintiff a crop of tumi]ps which he had then recently sown, for a sum less than ten pounds. During the winter following and while the tur- nips were still in the ground, the defendant sev- ered and carried away considerable quantities of them which he converted to his own use. No note in writing was made of the bargain. It was contended for the defendant, that trover did not lie for things annexed to the freehold, and that the contract was of no validity for want of a note or memorandum in writing, pur- suant to the statute of frauds. In deciding the case Joy, Chief Baron (Barons Smith, Pennefeather, and Foster concurring), says: "The general question for our decision is, whether there has been a contract for an in- terest concerning lands vdthin the second sec- tion of the statute of frauds; or whether it merely concerned goods and chattels; and that question resolves itself into another, whether or not a growing crop is goods and chattels. In one case it has been held that a contract for 1 Irrelevant parts omitted. potatoes did not require a note in writing be- cause the potatoes were ripe; and in another case the distinction turned upon the hand that was to dig them, so that if dug by A. B. they were potatoes, and if by C. D., they were an interest in lands. Such a course always in- volves the judge in perplexity and the case in obscurity. Another criterion must therefore be had recourse to; and, fortunately, the later cases have rested the matter on a more ration- aJ and solid foundation. At common law grow- ing crops were uniformly held to be goods, and they were subject to all the leading conse- quences of being goods, as seizure in execu- tion, &c. The statute of frauds takes things as it finds them, and provides for land and goods according as they were so esteemed be- fore its enactment. In this way the question may be satisfactorily decided. If before the statute a growing crop has been held to be an interest in lands, it would come within the second section of the act, but if it were only goods and chattels, then it came within the thirteenth section. * * * And, as we think that growing crops have all the consequences of chattels, and are, like them, subject to be taken in execution, we must rule the points saved for the plaintiff." Growing annual crops for many purposes are, and always have been, considered chattels. They go to the executor upon the death of the owner of the land, and not to the heir, and they may be levied on and sold upon execution like other personal chattels. And this being the case when the statute of frauds was enact- ed, they continued to be so treated and may properly be so now. But the word "land" is a comprehensive term, including standing trees, buildings, fences, stones, and waters, as well as the earth we stand on, and all pass under the general description of land in a deed. Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support, and, upon the death of the ancestor, thej' pass to the heir, as a part of the inheritance, and not to the executor, as emblements, or as ohat- tels. Neither can they be levied upon and sold on execution, as chattels, while standing. Thi| being the case when the statute of frauds was passed, it has since then been properly held, we think, that a sale of growing trees, with a right at any future time, whether fixed or indefinite, to enter upon the land and re- move them, does convey an interest in the land. It has been so held in this state (Put- ney V. Day, 6 N. H. 430; Olmstead v. Niles, 7 N. H. 522), and more recently in other states (Green v. Armstrong, 1 Denio, 550; Warren V. Leland, 2 Barb. 614; Pierpont v. Barnard, o Barb. 364; Dubois v. Kelley, 10 Barb. 496; Buck V. Pick well, 27 Vt. 157; Yeakle v. Jacob, 33 Pa. St. 376); also in England (Scorell v. Boxall, 1 Younge & J. 396; Teal v. Auty, 2 Brod. & B. 99). I think, therefore, that, upon the weight of authority and upon reason, the doctrine early TREES AND CROPS. established in this state, that a sale of growing timber is ordinarily a sale of an interest in land, is sound and ought to be sustained. Our statute, providing for the sale of timber or wood growing or standing on any land, sepa- rate from the land, by an administrator under a license from the judge of probate, also de- clares that such timber or wood shall be deem- fd to be real estate. Kev. St. c. 1G4, § 6. Let us examine the deed in this case and see if it is sullicient to convey an interest in land. Under the law of 1791, in relation to convey- ances, it was held, that, although a sale of tim- ber to be removed in a certain time conveyed an interest in land, so that the conveyance must be in writing, yet it need not be by deed. Put- ney T. Day, 6 N. H. 430; French v. French, 3 N. H. 234; Pritchard v. Brown, 4 N. H. 3U7; Olmstead v. Niles, 7 N. H. 522. In the last case cited, Parker, J., says: "Whether the statute of 1829, which repealed the act of 1791, has made any alteration in this respect, is a question which does not arise in this case." But that question soon after arose, and it was held, that, by the law of 1829, no conveyance of any interest whatever in real estate could be made, except by deed duly signed, sealed, and witnessed by two witnesses; that, without all these requisites, the deed, or writing, con- veyed absolutely nothing to any person; and that it conveyed nothing as against anybody but the grantor and his heirs, unless it were also acknowledged and recorded. Stone v. Ash- ley, 13 N. H. 38; Underwood v. Campbell, 14 N. H. 393. In the last case cited it is held, that, under the statute of 1791, a seal is es- sential in order that an instrument may oper- ate as a conveyance under the statute of uses (27 Hen. VIII. c. 10), which has been adopted in this state; and that a seal is also necessary that the writing may operate as a conveyance by way of bargain and sale under the same statute of 1791. The deed in this case is sufficient under the statute of frauds to convey an interest in land, for all that statute requires is that the convey- ance be in writing. This deed is also sufficient under the statute of 1791, as interpreted in Underwood v. Campbell, supra, because it is sealed. But it would be void under the stat- ute of 1829, according to the interpretation of Stone V. Ashley, supra, because not witnessed by two witnesses, for this deed is not witnessed at all. Does the law of the Revised Statutes change the law of 1829 in this respect V The law of 1829 enacted that no deed of bargain and sale, &c., should be valid unless executed in manner aforesaid, which was by being signed, sealed, and witnessed by two witnesses. Laws N. H. 1830, p. 533. The Revised Statutes (chapter 130, § 3) provide that every deed or other con- veyance of real estate shall be signed and sealed by the party granting the same, attested by two or more witnesses, acknowledged, «&c., and re- corded, &c., and section 4 provides that no deed of bargain and sale, mortgage or other convey- ance of any real estate, or any lease, «S:c., shall be valid to hold the same against any person but the grantor and his heirs, unless such deed or lease be attested, acknowledged and record- ed as aforesaid. It will be seen that the only change contemplated in the Revised Statutes was, that a deed not attested by two wit- nesses might be good as against the grantor and his heirs, whereas by the statute of 1829, it was expressly provided that it must be thus attested in order to be good against anybody. As the law now is, the conveyance will not be good, unless signed and sealed, to convey -any- thing to anybody, but it may be good as against the grantor and his heirs without being wit- nessed, acknowledged, or recorded. Hastings V. Cutler, 24 N. H. 481. This deed from the Holbrooks to Conant was therefore sufficient, under the Revised Statutes, being signed and sealed, as against the grantor and his heirs, so that the standing timber which constituted an interest in land passed by this deed to Co- nant. The next question is, was the written agree- ment or defeasance which was made at the same time with the deed properly admitted? Our statute (Rev, St. c. 131, § 2) provides that "no conveyance in writing of any lands shall be defeated, nor any estate encumbered by any agreement, unless it is inserted in the condi- tion of the conveyance- and made part thereof, stating the sum of money to be secured, or other thing to be performed." The question might perhaps arise, whether this does not re- fer to mortgages only. But we think it is not thus limited. In the original law as passed in 1829 (Laws N. H. 1830, p. 488). it was provided that no title, or estate, &c., in any lands, &c., should be "defeated or encumbered by any agreement whatever, unless such agree- ment, or writing of defeasance, shall be insert- ed in the condition of said conveyance, and be- come part thereof, stating the sum, &c., to be secured, or the other tiling or things to be per- formed." There was evidently no intention to change this statute in the revision, and its terms are clearly broad enough in the original act, and must have been intended to cover a case like this. The written agreement, or defeasance, should not have been admitted, and, of course, the other evidence in regard to the extension of the time of getting off the timber was immaterial. The result is that the deed conveyed the tim- ber absolutely, and this accompanying paper was a contract upon which Conant might have been liable to the Holbrooks, if he did not perform its conditions, and that agreement might be modified by parol. If there had been no modification of that contract, then Conant was to forfeit all the timber he did not get off in three years, and if he did not abide by that contract he would be liable in damages for a breach of it. But if it was modified and the time extended, then he might not be liable. But the deed conveyed the timber to Conant absolutely. 8 WHAT IS REAL PROPERTY. If the parties here intended to make a condi- tional deed, the condition should have appeared in the deed, and then the title or interest would have been held subject to that condition, as in any other case of a conditional deed. This writing was also improperly admitted upon another ground. Since we hold that the property conveyed was an interest in land, which can only be conveyed by an instrument under seal, this writing, in order to have op- erated as a defeasance, must have been also under seal, which is not the fact; so that, inder pendent of our statutes, the writing was not admissible in evidence. Lund v. Lund, 1 N. H. 41; French v. Sturdivant, 8 Greenl. 246; Bickford v. Daniels, 2 N. H, 71; Runlet v. Otis, Id. 167; Wendell v. Bank, 9 N. H. 404, 419. *♦*♦•• Judgment on the verdict. TREES AXD CROPS. 9 CARNEY v.. MOSHER et al. (56 N. W. 935, 97 Mich. 551.) Snnreme Court of Michigan. Nov. 24, 1893. Error lo circuit court, Hillsdale county; Vic- tor H. Lane, .Judge. Action of trover by Darwin H. Carney against Orrin B. Mosher, Thomas J. Lowry, Lucieu Walworth, and Henry S. Walworth, for the conversion of certain wheat. There was a judgment entered on the verdict of a jury directed by the court in favor of de- fendants, and plaintiff brings error. Af- firmed. Geo. A. Knickerbocker .'ind Wm. C. Chad- wick, for appellant. C. A. Shepard and St. John & Lyon, for appellees. MONTGOMERY, J. The plaintiff brought trover for wheat grown upon laud owned by defendant Orrin B. Moslier, The wheat was sown by Alvin L. Mosher while occu- pying the land as the tenant of Orrin B. The wheat was harvested by defendant Mosher, and sold to defendant Heniy S. Walworth, who, it is claimed, had notice of plaintiff's rights. Prior to the spring of 1890, Alvin L. Mosher had occupied the land under a written lease, and in the spring of that year renewed his lease for one year by oral agree- ment. There had been a previous lease, and, as the testimony of plaintiff shows, on the occasion of the present letting, Alvin re- fused to pay the rent previously reserved, imless he should have the privilege of put- ting the land all into wheat, and it was agi-eed that he might do so. He prot^oed- ed to sow the land to wheat, and in January, 1891, sold the growing crop to plaintiff. In the spring, Alvin sm-rendered possession to OiTin B., who proceeded to reap the crop, after notice of plaintiff's purchase. The cir- cuit judge directed a verdict for defendants on the ground that the lease was oral, and that the implied provision that the lessee should have the right to reap the crop of wheat was void, under the statute of frauds. The defendants contend that this holding shotild be sustained; and, further, as it ap- pears that the rent was not paid during the year, nor since, that the lessee had no right to the crop, and that a purchaser would have no greater right than he; and, further, that if it be conceded that the purchaser of the r our holdings. See Huyser v. Chase, 13 Mich. 98. The tenancy could be terminated by ei- ther party on three months' notice to quit. The tenant did not wait for this, but left the premises in January or Februjiry, 1891. He paid no rent The owner thereupon took possession, as he had a right to do. and as he could, but for the lessee's peaceable sur- render, have done by a no' ice to quit. If it be suggested that treating the lease as void, under the statute of frauds, the ten- ant should, because of his previous relations, be treated as a tenant from year to year, he stands in no better situation, for the year would be tonninatixl, under such holding, March 31, 1891, giving the owner the right to possession tliereafter. and the right to reap the crop. The judgment will be affirm- ed, with costs. The other iustices concurred. 10 WHAT IS REAL PROPERTY. TRUSTEES OF SCHOOLS et al. v. SCHROLL et al. (12 N. E. 243, 120 111. 509.) Supreme Court of Illinois. May 12, 1887. Appeal from circuit court, Morgan county. Ejectment by trustees of schools of township 16, range 13, to recover that part of section 16, township 16, range 13 W., of third prin- cipal meridian, in Morgan county, Illinois, lying east of lots 1, 2, and 3, and west of lots 4 to 13, in said section. The lands in controversy are, in fact, part of the bed of a sheet of water known as "Meridosia Lake." Judgment for defendants. Plaintiffs appeal. Gallon & Thompson, for appellants, trustees of schools. Morrison & Whitlock, for appel- lees, SHOPE, J. Fractional section 16 was, by the United States, "granted to the state, for the use of the inhabitants of such township, for the use of schools." Enabling Act of Con- gress, April 18, 1818 (3 Stat. 428); Organic Laws 111. (1 Gross' St. 19). And this ena- bling act was formally accepted by an ordi- nance of the constitutional convention of Au- gust 26, 1818. Laws 111. 1819. Append. 21- Organic Laws 111. (1 Gross' St. 20). The ena- bling act and ordinance constituted, as this court held in Bradley v. Case, 3 Scam. 585, a solemn compact between the United States and this state, whereby the state of Illinois became the purchaser of the school section for a valuable consideration, with full power to sell or lease the same for the use of schools, as the state might provide, and think most bene- ficial to the inhabitants of the respective town- ships. Sections 16, vn the several townships in the state, having been granted and accepted as above stated, were not public lands within the act of congress of March 30, 1822 (3 Stat. 659), authorizing the state "to survey and mark, through the public lands of the United States, the route of the canal connecting the Illinois river with the southern bend of Lake Michigan," (Trustees v. Haven, 5 Gilm. 548); and for the like reason we must hold that they were not "swamp and overflowed lands, made unfit thereby for cultivation," remaining "un- sold at the passage of" the act of congress of September 28. 1850 (9 Stat. 519) ; being an act "to enable the state of Arkansas and other states to reclaim the swamp lands within their limits." After the grant in 1818, they ceased to be public lands of the United States, nor could they after that time be regarded as un- sold lands, and so they were unaffected by the swamp-land act. When, therefore, the defendants in this case offered in evidence the deed of the county clerk of Morgan county, purporting to have been made by order of the county board of that county, on the authority of the laws of this state relating to swamp and overflowed lands, and to convey parts of this school section, the ofEer should have been denied, and it was error in the circuit court not to have sustained the plaintiff's objection. And this is so, independ- ent of all questions as to whether the uncer- tain and defective description of the premises said to be part of this particular section ren- dered the deed inoperative to that extent, or whether the premises attempted to be con- veyed formed any part of the lauds sued for or bounded thereon. When, therefore, the oflB- cial character of appellants was admitted, and the enabling act and ordinance of acceptance had been offered in evidence, appellants' right of recovery was complete, unless it could be shown that the state had parted with the title to the lands described in the declaration, or that the township authorities had parted with or lost their right of possession in the same. It is contended by appellees that Meridosia Lake is a stream of water some five miles in length, and emptying into the Illinois river; and that appellants, by the proper oflBcers, hav- ing platted and sold the land to the margin of and bordering on the stream, the grantees took to the middle of the stream; that the title of such grantees is an outstanding title; and ap- pellees, being shown to be in possession under such grantees, rightfully prevailed in the cir- cuit court, and ought to prevail here. The books and authorities are all agreed that streams and bodies of water within the ebb and flow of the tide are, at common law, navi- gable; and the riparian proprietor's title does not, speaking generally, extend beyond the shore. And it is equally well settled that grants of land, bounded on streams or rivers above tide-water, carry the exclusive right and title of the grantee to the center of the stream, usque ad filum aquse, subject to the easement of navigation in streams navigable in fact, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the stream. 3 Kent, Comm. 427; 2 Hil. Real Prop. 92; Ang. Water Courses, § 5; Jones V. Soulard, 24 How. 41; Indiana v. Milk, 11 Fed. 389; Canal Appraisers v. People, 17 Wend. 590; Child v. Starr, 4 Hill, 369; Sea- man V. Smith, 24 111. 521; Rockwell v. Bald- win, .53 111. 19; Braxon v. Bressler, 64 111. 488; Ice Co. v. Shortall, 101 111. 46. But an entirely different rule applies when land is conveyed bounded along or upon a natural lake or pond. In such case the grant extends only to the water's edge. Ang. Water Courses, §§ 41, 42; 3 Kent, Comm. 429, note a; citing Bradley v. Rice, 13 Me. 201, and Waterman v. Johnson, 13 Pick. 261. See War- ren V. Chambers, 25 Ark. 120; Indiana v. Milk, (Cir. Ct. U. S. D. Ind., Gresham, J.,) 11 Fed. 389; citing Wheeler v. Spinola, 54 N, Y. 377; Mansur v. Blake, 62 Me. 38; State V. Gilnianton, 9 N. H. 461; Paine v. Woods, 108 Mass. 160; Fletcher v. Phelps, 28 Vt. 257; Austin v. Railroad Co., 45 Vt. 215; Boor- man V. Sunnuchs, 42 Wis. 233; Delaplaine v. Railway Co., Id. 214; Seaman v. Smith, 24 111. 521. See, also. Nelson v. Butterfield, 21 Me. 229; West Roxbury v. Stoddard, 7 Al- RIPARIAX PPtOPRIETOPvS. 11 len. 158; Canal Com'rs v. People, 5 Wend. 423, 446; Jakeway v. Barrett, 38 Vt. 31G; Primm v. Walker, 38 Mo. 99; Wood v. Kelley, 30 Me. 47. The line of defense adopted by appellees, as before stated, presupposes the existence of cer- tain facts, viz.: (1) That appellants, being owners of section 16, granted the lands abut- ting upon the water spoken of as Meridosia Lake, within such section, bounding such grants along or upon the margin of such water; (2) that Meridosia Lake is not, at the common law, navigable; (3) that Meridosia Lake, and with- in the bounds of section 16, is a stream or riv- er, as contradistinguished from a lake; and (4) that the terms of the grant do not clearly denote an intention to stop at the edge or margin of the stream. if the record iu this case shows the exist- ence and concurrence of all these facts, this judgment, upon the authority of the cases cit- ed, may be affirmed; but, if it shall appear that the case made by the record does not show the existence of the supposed facts, re- versal must follow. It is not pretended that Meridosia Lake is a stream or body of water navigable at common law, — that is to say, it is not within the ebb and flow of the tide; and hence the rules of law applicable in such case cannot be invoked. The contention is that Meridosia Lake is a stream of water about five miles long, emptying into the Illinois river, with its southern extremity and outlet within the bounds of section 16. A careful examina- tion of the records shows that this lake is a natural body of water, five or six miles long, and in some places a mile in width; that it is fed by springs; that its southern extremity extends into section 16; that it has no con- nection with any stream of water, except by a slough at the south end, and near the south line of section 16; that the body of the lake, in its natural state, is without current; but that during a portion of the year a current of water passes from the lake, through the slough referred to, into the Illinois river, which flow, however, is stopped in the summer. The rec- ord does not show the average width of the lake, the average depth of the water in the lake in its natural state, nor whether or not it is in fact navigable; nor are we able to learn therefrom the length and width of the slough, nor the depth of the water flowing through the same, or the rapidity of the flow from the lake into the river at the natural stage of water in the lake. All we can know of this outlet we must gather from the plat made by the town- ship trustees in 1846, taken in connection with the fact testified to by witnesses, that, for a portion of the year, some water from a laud- locked natural body of currentless water, five or six miles long, and in places a mile in width, flows therethrough; and from this alone we are asked to find and hold that such a body of water, so situated, is a stream, and not a lake. . This, as we understand the law, we cannot do. The word "stream" has a well-defined mean- ing, wholly inconsistent with a body of water at rest. It implies motion; as, to issue in a stream; to flow in a current. Webst. Diet. Indeed, the controlling distinction between a stream and a pond or lake is that in the one case the water has a natural motion, — a cur- rent, — while in the other the water is, in its natural state, substantially at rest. And this is so, independent of the size of the one or the other. The flowing rivulet of but a few inches in width is a stream as certainly as the Mis- sissippi. And when lands are granted by the proprietor of both land and stream, bounding such grant upon the stream, the grantee ac- quires right and title to the thread or middle of. the stream. This right is grounded upon the presumption that the grantor, by making the stream the boundary, intended his grantee to take to the middle of the stream; and this presumption will prevail until a contrary in- tent is made to appear. Rockwell v. Baldwin, 53 III. 19. The right spoken of does not rest upon the principle that, when a grant is bound- ed on a stream, the bed of the stream to the thread or middle passes as incident or appur- tenant to the bordering land; for the bed of the stream is land, though covered with water, and land cannot pass as appurtenant to land. As is said in Child v. Starr, 4 Hill, 369: "A conveyance of one acre of land can never be made, by any legal construction, to carry an- other acre by way of incident or appurtenance to the first." The riparian proprietor, claim- ing to the thread or middle of the stream, must show the bordering water to be a stream, and that his grant, in terms or legal effect, is bounded upon or along such stream; that the stream is made the boundary; and, while it is obvious that a currentless body of water cannot be a stream, the fact of some current in a body of water is not of itself, in every instance, sufficient to determine its character as a stream, as distinguished from a pond or lake. The presence of some current is not enough alone to work an essential change in so essentially different things as a stream and a lake; for a current from a higher to a lower level does not necessarily make that a stream or river which would otherwise be a lake, and the swelling out of a stream into broad water- sheets does not necessarily make that a lake which would otherwise be a river. Ang. Wa- ter Courses, § 4. We are therefore constrain- ed to hold that the position, size, and charac- ter of this body of water, as shown by this record, fixes its character as a lake, and not a stream, notwithstanding some part of its water during a portion of the year may flow through the slough into the Illinois river. Another fact, the existence of which is pre- supposed, is that the proper officers, acting un- der the laws of the state, granted the land bordering on so much of the stream called "Meridosia Lake" as was within section 16, bounding such grants on the stream. The only grants shown in this record to have been made, and upon which this contention could be based, are the patents issued to Edward Watson and Edward Lusk. Watson took un- 12 WHAT IS REAL PROPERTY. der his patent that part of section 16 desig- nated on the plat of the section made by the trustees as lots 12 and 13, containing 22 4-100 acres by survey, and Lusk took under his pat- ent lots 3 to 11, inclusive, by the same plat, containing by the plat 88% acres. By refer- ence, the plat of the section made by the trus- tees in 1846 became a part of the conveyance, as much so as if it had been copied into the patent deed. Piper v. Connelly, 108 111. 646; Railroad Co. v. Koelle, 104 111. 455. And the rule of law is that, when lands are pur- chased and conveyed in accordance with a plat, the purchaser will be restricted to the boundaries as shown by the plat. McCormick V. Huse, 78 111. 363; citing McClintock v. Rog- ers, 11 111. 279. The patent deeds contain no intimation that the lots conveyed border on a lake or stream; and when we look at the plat, as we must, all we can determine is the shape and area of the several lots. No data is given from which we can determine the width or depth of any lot, nor can we know from the plat that either the east line of lot 3, or the west line of lots 4 to 13, inclusive, as shown on the plat, are in fact the western and east- ern boundary of Meridosia Lake. It may be so in fact, but this record fails to show it to be so; while, as to lots 1 and 2, the record does not show that they were at any time sold or conveyed, or the title vested in the state in any way divested. We therefore hold that it does not appear from the record that the state, for the inhabitants of the township, granted all the lands bordering on Meridosia Lake, and within this fractional section 16, nor that the grants, to the extent they were made, were bounded on the lake. It is thus seen that the essential facts, the existence of which is pre- supposed as a basis for the defense interposed, are not shown to exist; and hence the defense based on the right, as riparian owners on streams, to take ad filum aquae, cannot be in- voked, and has no application to this case. For the reasons stated, all the evidence offered by the appellees on the trial, relating to the title, ownership, and possession of the lots shown by the trustees' plat, should have been refused as immaterial, and its reception, over the objection of appellants, was error. One other question remains to be considered, viz., appellees' claim that they are in possession "of a portion of water known as 'Meridosia Lake,' claiming title to it by possession for more than 20 years, as fishermen." Appel- lants sue for a body of land. Some part of the premises described in the declaration must form the bed of that part of Meridosia Lake within section 16, but what part is lake bed and what shore we cannot determine from this record. Appellees' claim of title by pos- session is not of land, but of water. But if this should be thought hypercritical, and it be assumed that appellees' claim is of 20 years' adverse possession of the bed of the lake with- in the section, still it must be observed that such possession of land as here claimed is a conclusion of law arising from existing facts. The evidence preserved in the record goes no further than the declaration of witnesses that appellees, and those under whom they claim, had, and had had, exclusive possession for that length of time. But how, and to what extent, — whether the lake, or any part of it, was inclosed by fences, dams, walls, or weirs, — and how this adverse dominion was manifest- ed, there is not one word to show. The claim, under this proof, is without force or merit. The judgment of the circuit court is reversed, and the cause remanded. RIPARIAN PROPRIETORS. 13 ILLINOIS CENT. R. CO. v. STATE OF IL- LINOIS ot al. CITY OF CHICAGO v. ILLI- NOIS CENT. R. CO. et al. STATE OF ILLINOIS V. ILLINOIS CENT. R. CO. et al. (13 Sup. Ct. 110, 146 U. S. 387.) Supreme Court of the United States. Dec. 5, 1892. Appeals from the circuit court of the Unit- ed Stales for the northern district of Illinois. Miuiilied and allirnied. B. F. Ayeis and John X. Jewett, for Illi- nois Cent. 11. Co. Joliu S. Miller and S. S. Gregory, for the City of Chicago. George Hunt, for the .State of Illinois. Mr. Justice FIELD delivered the opinion of the court. This suit was commenced on the 1st of March, 1883, in a circuit court of Illinois, by an information or bill in equity filed b\' the attorney general of tiie state, in the name of its people, against the Illinois Central Rail- road Company, a corpoiation created under its laws, and against the city of Chicago. The United States were also named as a party defendant, but they never aj)peared in the suit, and it was impossible to bring them in as a party without their consent. The alleged grievances arose solely from the acts and claims of the railroad company, but the city of Chicago was made a defendant because of its interest in the subject of the litigation. The railroad company filed its answer in the state court at the first term after the com- mencement of the suit, and upon its petition the case was removed to the circuit court of the United States for the northern district of Illinois. In May following the city appeared to the suit and filed its answer, admitting all the allegations of fact in the bill. A sub- sequent motion by the complainant to remand tlie case to the state court was denied. 16 Fed. Rep. 881. The pleadings were after- wards altered in various particulars. An amended inforniiition or bill was filed by the attorney general, and the city filed a cross bill for affirmative relief against the state and the co:npany. The latter appeared to the cross bill, and answered it, as did the attor- ney general for the slate. Each party has prosecuted a separate appeal. The object of the suit is to obtain a judicial determination of the title of certain lands on the east or lake front of the city of Chicago, situated between the Chicago river and Six- teenth street, wliich have been reclaimed from the waters of the lake, and are occupied by the tracks, depots, warehouses, piers, and other structures used by the railroad company in its business, and also of the title claimed by the company to the submerged lands, con- stituting the bed of the lake, lying east of its tracks, within the corporate limits of the city, for the distance of a mile, and between the south line of the south pier near Chicago river, extended eastwardly, and a line ex- tended in the same direction from the south line of lot 21 near the company's roundhouse and machine shops. The determination of the till" of the company will involve a con- sideration of its right to construct, for its own business, as well as for public conven- ience, wharves, piers, and docks in the har- bor. We agree with the court below that, to a clear understaiuiing of the numerous ques- tions presented in this case, it was necessary to trace the history of the title to the several parcels of land claimed by the company; and the court, in its elaljorate opinion, {oh street and its southern boundary, from further damage or injury from the ac- tion of tiie waters of Lake Michigan; and that that part of the structure south of Lake Park should be commenced and prose -uted with reasonable dispatch after acceptance of the ordinance. It was also enacted that the company should "not in any manner, nor for any purpose whatever, occupy, use, or in- trude ujion the open ground known as ' Lake Park,' belonging to the city of Chicago, lyiuj; between Michigan avenue and the western or inner line before mentioned, except so far as the common council may consent, for tlie convenience of said company, while con- ' structing or repairing the works in front of said ground;" and it was declared that the company should "erect no buildings between the north line of Randolph street and the south side of the said Lake Park, nor occupy nor use the works jiroposed to be constructed between th^se points, except for the passage of or for making up or distributing their trains, nor ])lace upon any part of their works between said points any obstruction to the view of file lake from the shore, nor suffer ♦ heir locomotives, cars, or other articles to re- main upon their tracks, but only erect such works as are proper for the construction of their necessary tracks, and protection of the same." KIPARIAX rROrRIETOKS. 17 The company was allowed 90 days to ac- cept this ordinance, and it was provided tiiat upon such acceptance a contract embodying its provisions should be executed and deliv- ered between tlie city and the company, and that the rights and privileges conferred upon tlie company sliould depend upon the per- formance on its part of the requirements made. The ordinance was accepted and the required agreement drawn and executed on the 28th of March, 1853. Under the authority of this ordinance the railroad company located its tracks within the corporate limits of the city. Those run- ning northward from Twelfth street were laid upon piling in the waters of the lake. The shore line of the lake was at that time at Park Row, about 400 feet from the west line of Michigan avenue, and at Randolph street, about 112J feet. Since then the space between the shore line and the tracks of the railroad company has been filled with earth under the direction of the city, and is now solid ground. After the tracks were constructed tiie com- pany erected a breakwater east of its roadway upon a line parallel with the west line of Michigan avenue, and afterwards filled up the space between the breakwater and its tracks with earth and stone. We do not deem it material, for the deter- mination of any questions presented in this case, to describe in detail the extensive works of the railroad company under the permission given to locate its road within the city by the ordinance. It is sulficient to say that, when this suit was commenced, it had reclaimed from the waters of the lake a tract 200 feet in widtii. for the whole distance allowed for its entry within the city, and constructed thereon the tracks needled for its railway, with all the guards against danger in its ap- proach and crossings as specified in the ordi- nance, and erected the designated breakwater beyond its tracks on the east, and the neces- sary works for the protection of the shore on the west. Its works in no respect interfered with any useful freedom in the use of the waters of the lake for commerce, — foreign, interstate, or domestic. They were con- structed under the authority of the law by the requirement of the city, as a condition of its consent tliat the company might locate its road within its limits, and cannot be re- garded as such an encroachment upon the domain of the state as to require the inter- position of the court for their removal or for any restraint in their use. The railroad company never acquired by the reclamation from the waters of the lake of the land upon which its tracks are laid, or by the construction of the road and works connected therewith, an absolute fee in the tract reclaimed, with a consequent rigiit to dispose of the same to other parties, or lo use it for any other purpose than the one desig- nated, — the construction and opei-ation of a railroad thereon, with one or more tracks and works in connection with the road or in GATES,R.P.— 2 aid thereof. The act incorporating the com- pany only :rranted to it a right of way over the public lands for its use and control, for the purpose contemplated, wiiich was to en- able it to survey, locate, and construct and operate a railroad. All lands, waters, ma- terials, and privileges belonging to the state were granted solely for that purpose. It did not contemplate, much less authorize, any diversion of the property to any other pur- pose. The use of it was restricted to tho purpose expressed. While the grant to it in- cluded waters of streams in the line of the right of way belonging to the state, it was accompanied with a declaration that it should not be so construed as to authorize the cor- poration to interrupt the navigation of the streams. If the waters of the lake riiay be deemed to be included in the designation of streams, then their use would be held equally restricted. The prohibition upon the com- pany to make a location of its road within any city, without the consent of its common council, necessarily empowered that body to prescribe the conditions of the entry, so far at least as to designate the place where it should be n)ade, the character of the tracks to be laid, and the protection and guards that should be constructed to insure their safety. Nor did the railroad company acquire, by the mere construction of its road and other works, any lights as a riparian owner to re- claim still further lands from the waters of tlie lake for its use, or the construction of piers, docks, and wharves in the furtlierance of its business. The extent to which it could reclaim the land under the waters was lim- ited by the conditions of the ordinance, which was simply for the construction of a railroad on a track not to exceed a specified width, and of works connected therewith. We shall hereafter consider what rights the company acquired as a riparian owner from its acquisition of title to lands on the shore of the lake, but at present we are speak- ing only of what rights it acquired from the reciamalion of the tract upon which the rail- road and the works in connection with it are built. The construction of a pier or the ex- tension of any land into navigable waters for a railroad or other purposes, by one not the owner of lands on the shore, does not give the builder of such pier or extension, whether an individual or corporation, any riparian rights. Those rights are incident to riparian ouneiship. They exist with such owner- ship, and pass with the transfer of the land; and the land must not only be contiguous to the water, but in contact with it. Proxim- ity, without contact, is insulhcient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage. See Gould, Waters, § 148, and authorities there cited. The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, 10 Wall. 497, 504, to access to the navigable 18 WHAT IS REAL PROPERTY. j)art of the water on the front of which lies his land, and lor that purpose to make a landing, wharf, or pier for his own use or for the use of the public, subject to such gen- eral rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited the court held that this riparian right was property, and valuable, and, though it must be enjoyed in due subjection to the rights of the public, it could not 1)6 arbitrarily or capriciously im- paired. It had been held in the previous case of Button v. Strong, 1 Black, 23, 33, that, whenever the water of the shore was too shoal to be navigable, there was the same necessity for wharves, piers, and landing places as in the bays and arms of the sea; that, where that necessity existed, it was dif- ficult to see any reason for denying to the adjacent owner the right to supply it; but that the right must be understood as termi- nating at the point of navigability, where the necessity for such erections ordinarily ceased. In tiiis case it appears that fractional sec- tion 10, which was included within the city limits bordering on tlie lake front, was, many years before this suit was brought, divided, under the autliority of the United States, into blocks and lots, and the lots sold. The pro- ceedings taken and the laws passed on the subject for the sale of the lots are stated with great particularity in tlie opinion of tlie court below, but for our purpose it is sufficient to mention that the lots laid out in fractional section 10 belonging to the United States were sold, anil, either directly or from pur- cliusers, the title to some of them fronting on the lake nortli of Randolph street became vested in the railroad coai!. any, and thecora- jiany, finding the lake in front of those lots siiadovv, lilled it in, and upon the reclaimed land constructed slips, wharves, and piers, the last three piers in 1872-73, 1880, and 1881, wliicli it claims to own and to have the right to use in its business. According to the law of riparian owner- sliip which we have stated, this claim is well founded, so f.ir as the piers do not extend be- yond the point of navigability in tlie waters of the lake. We are not fully satisfied that such is the case, from the evidence wliicli the company has produced, and the fact is not conceded. Nor does the court below find tliatsuch navitr.ible point had been establish- ed by any public authority or judicial deci- sion, or liiat it iiad any founiation, other than the judgment of the railroad company. The same position may be taken as to the claim of the company to the p'.er and docks erected in front of Michigan avenue between the lines of Twelfth and Sixteenth streets ex- tended. The company had previously ac- quired the title to certain lots fronting on the lake at that point, and, upon its claim of riparian rights from that ownership, liad erected the structures in question. Its own- ership of them likewise depends upon the question whether tliey are extended beyond or are limited to the navigable point of the waters of the lake, of which no satisfactory evidence was offered. Upon the land reclaimed by the railroad company as riparian proprietor in front of lots into which section 10 was divided, which it had purchased, its passenger depot was erected north of Randolph street; and to facilitate its approach the common council, by ordinance adopted September 10, 1855, authorized it to curve its tracks westwardly of tlie line fixed by the ordinance of 1852, so as to cross that line at a point not more tlian 200 feet south of Randolph street, in accord- ance with a specified plan. This permission was given upon the condition that the com- pany should lay out upon its own land, west of and alongside its passenger house, a street 50 feet wide, extending from Water street to Randolpli street, and fill the same up its en- tire length, within two years from the pas- sage of the ordinance. The company's tracks were curved as permitted, the street referred to was opened, the required filling was done, and tlie street lias ever since been used by the public. It being necessary that the rail road company should have additional means of approaching and using its station grounds between Randolph street and the Chicago river, the city, by anotherordinance, adopted September 15, 1856, granted it permission to enter and use, in perpetuity, for its line of railro.id and other works necessary to protect the sa.ne from the lake, the space between its then breakwater and a line drawn from a point tliei-eon 700 feet south of the north line of Randolph street extended, and running thence on a straight line to the southeast corner of its present breakwater, thence to the river, and the space thus indicated tiie railroad company occupied and continued to hold pursuant to this ordinance; and we do not perceive any valid objection to its con- tinued holding of the same for the purposes declared, — that is, as additional me.ins of ap- proaching and using its station grounds. We proceed to consider the claim of the railroad company to the ownership of sub- merged lands in the harbor, and tlie right to construct such wharves, piers, docks, and otlier works therein as it may deem proper for its interest and business. The claim is founded upon the third section of the act of the legislature of the state passed on the 16tii of April, 1S69, the material part of which is as follows: "Sec. 3. The right of the Illinois Central Railroad Company under the grant from the state in its charter, which said grant consti- tutes a part of tiie consideration for which the said company pays to the state at least seven per cent, of its gross earnings, and un- der and by virtue of its appropriation, occu- pancy, use, and control, and the riparian ownership incident to such grant, appropri- ation, occupancy, use, and control, in and to the lands submerged or otherwise lying east of the said line running parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections ten and fifteen. RIPARIAN PROPRIETORS. 19 township and range as aforesaid, is hereby conliimed; and all the right and title of the «tate of Illinois in and to the submerged l.mds constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of tlie Illinois Central Railroad Company, for a distance of one mile, ;ind between the south line of the south pier extended eastwardly and a line exlrnded eastward fiom the south line of lot twenty-one, south of and near to th;" roundhouse ami machine shops of said cominvny, in the south division of the said city of Chicago, are hereby granted in fee to the said Illinois Central Railroad Company, its successors and assigns: provided, how- ever, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same, and that all gross receipts from use, profits, leases, or otherwise, of said lands, or the improve- ments thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semiannually, the per centum provided for in its charter, in ac- cordance with the requirements of said char- ter: and provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation, nor shall this act be construed to exempt the Illinois Central Railroad Com- pany, its lessees or assigns, from any act of the general assembly which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor." The act of which this section is a part was accepted by a resolution of the board of directors of the company at its office in the city of New York, July 6, 1870, but the ac- ceptance was not communicated to the state until the I8th of November, 1870. A copy of tin; resolution was on that day forwarded to the secret.iry of state, and tiled and re- corded by him in the fecords of his office. On the 15th of April, 1873, the legislature of Illinois repealed the act. The questions presented relate to the validity of the section cited, of the act, and the effect of the repeal upon its operation. The section in question has two objects in view: One was to confirm certain alleged rights of the railroad company under the grant from the state in its charter and under and "by virtue of its appropriation, occu- pancy, use, and control, and the riparian ownership incident" thereto, in and to the lands submerged or otherwise lying east of a line parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15. The other object was to grant to the railroad company submerged lands in the harbor. The confirmation made, whatever the operation claimed for it in other respects, cannot be invokid so as to extend the ri- parian right which the company possessed from its ownership of lands in sections 10 and 15 on the shore of the lake. Wiiether the jders or docks constructed by it after the passage of the act of 18G9 extend beyond the point of navigability in the waters of tlie lake must be the subject of judicial inquiry upon the execution of this decree in the court below. If it be ascertained upon such in- quiry and determined that such piers and docks do not extend beyond the point of practicable navigability, the claim of the rail- road company to their title and possession will be confirmed; but if they or either of them arc found, on such inquiry, to extend beyond the point of sucii navigability, then the state will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown, or for such other disposition of the extension as, upon the application of the state and the facts established, may be authorized by law. As to the grant of the submerged lands, the act declares that all the right and title of the state in and to the submerged lands, con- stituting the bed of Lake Michigan, and ly- ing east of the tracks and breakwater of the company for the distance of one mile, and between the south line of the south pier ex- tended eastwardly and a line extended east- wardly from the south line of iut 21, south of and near to the roundhouse and ma- chine shops of the company, "are granted in fee to the railroad company, its succes- sors and assigns." The grant is accompa- nied with a proviso that the fee of the lands shall be held by the company in per})etuity, and that it shall not have the power to grant, sell, or conve\' the fee thereof. It also de- clares that nothing therein shall authorize obstructions to the harbor, or impair the pub- lic right of navigation, or be construed to exempt the company from any act regulat- ing the rates of wharfage and dockage to be charged in the harbor. This clause is treated by the counsel of the Company as an absolute conveyance to it of title to the submerged lands, giving it as full and complete power to use and dispose of the same, except in the technical transfer of the fee, in any manner it may choose, as if they were uplands, in no respect covered or affected by navigable waters, and not as a license to use the lands subject to revo- cation by the state. Treating it as such a conveyance, its validity must be determined by the consideration whether the legislature was competent to make a grant of tlie kind. The act, if valid and operative to the ex- tent claimed, placed under the control of the railroad company nearly the whole of the submerged lands of tlie harbor, subject only to the limitations that it should not authorize obstructions to the harbor, or impair the public right of navigation, or exclude the legislature from regulating the rates of wharfage or dockage to be charged. With these limitations, the act put it in the power of the company to delay indefinitely the im- provement of the harbor, or to construct as 20 WHAT IS REAL PROPERTY. luany docks, piers, and wharves and other works as it might choose, and at such posi- tions in tlie harbor as might suit its purposes, and permit any kind of business to be con- ducted thereon, and to lease them out on its own terms for indefinite periods. Tiie inhi- bition against the technical transfer of the fee of any portion of the submerged lands was of little consequence when it could make a lease for any period, and renew it at its pleasure; and the inhibitions against author- izing obstructions to the harbor and impair- ing tlie public right of navigation placed no impediments upon the action of the railroad company which did not previously exist. A corporation created for one purpose, the con- struction and operation of a railroad between designated points, is by the act converted into a corporation to manage and practically control the harbor of Chicago, not simply for its own purpose as a railroad corporation, but for its own profit -generally. The circumstances attending the passjige of the act through the legislature were on the hearing the subject of much criticism. As originally introduced, the puipose of the act was to enable tiie city of Chicago to enlarge its harbor, and to grant to it the title and interest of the state to certain lands ad- jacent to the shore of Lake Michigan, on the eastern front of the city, and place the har- bor under its control: giving it all the nec- essary powers for its wise management. But during the passage of the act its pur- port was changed. Instead of providing for the cession of the submerged lands to the city, it provided for a cession of them to the" railroad company. It was urged that the title of the act was not changed to corre- spond with its changed purpose, and an ob- jection was taken to its validity on that ac- count. But the majority of the court were of opinion that the evidence was insufiicient to show that the requirement of the cimsti- tution of the state, in its passage, was iiot comulied with. The question, therefore, to be considered, is whether tiie legislature was competent to tiius deprive the state of its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters; ^, or, in other words, whether the railroad cor- ' poration can hold the lands and control the waters by the grant, against any future ex- ercise of power over them by the state. That tiie state holds the title to the lands under tlie navigable waters of Lake Michi- gan, within its limits, in the same manner ^ that the state holds title to soils under tide water, by the common law, we have already shown; and that title necessarily carries with it control over the waters above them, when- ever the lands are subjected to use. But it is a title different in character from that which the state liolds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over tliem may be improved in many in- stances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of tlie subiiierged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in tlie ad- judged cases as a valid exercise of legislative power consistently with the trust to the pub- lic upon which such lands are held by the state. But that is a very dilferent doctrine from the one which would sanction the abdi- cation of the general control of the state over lands under the navigable waters of an en- tire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and con- trol of pi-operty in wliich the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can brf disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the pub- lic interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in opinions of the courts, expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particu- lar cases. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like naviga- ble waters and soils under them, so as to leave them entirely under the use and con- trol (if private parties, except in tlie instance of parcels mentioned for the improvement of RIPAllIAN PROPRIETORS. 21 the navigation and use of the waters, or when parcels can be disposed of wiLliout im- pairment of the public interest in what re- mains, than it can abdicate its police powers In the administration of {government and the preservation of the peace. In the adminis- tration of government the use of such powers may for a limited period be delegated to a municipality or other body, but tliere always ren)ains with the state the right to revoke tliose powers and exercise them in a more direct manner, and one more conformable to its wi.slies. So with trusts connected with public property, or property of a special char- acter, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state. The harbor of Chicago is of immense value to the people of the state of Illinois, in the facilities it affords to its vast and constantly increasing commerce; and the idea that its legislature can deprive the state of control over its bed and waters, and place the same in the hands of a private corporation, created for a different purpose, — one limited to transportation of passengers and freight be- tween distant points and the city, — is a prop- osition tliat cannot be defended. The area of the submerged lands proposed to be ceded by the act in question to tlie rail- road company embraces something more than 1,000 acres, being, as stated by counsel, more tlian three times the area of tiie outer har- bor, and not only including all of that har- bor,, but embracing adjoining submerged lands, which will, in all probability, be here- after included in the harbor. It is as large as that embraced by all the merchandise docks along the 'Jl.iimesat London; is much larger than tliat included in the famous docks and basins at Liverpool; is twice that of the ])ort of Marseilles, and nearly, if not quite, equal to the pier area along the water front of the city of New York. And the ar- rivals and clearings of vessels at tiie port ex- ceed in number those of New York, and are equal to those of New York and Boston com- bined. Chicago has nearly 25 per cent, of tiie lake carrying trade, as compared with the arrivals and clearings of all the leading ports of our great inland seas. In the year ending June 30, 1886, the joint arrivals and clearances of vessels at that port amounted to 22,096, with a tonnage of over 7,000.000; and in 1890 the tonnage of the vessels reached nearly 9,000,000. As stated by counsel, since the passage of the lake front act, in 1869, the population of the city has increased nearly 1,000,000 souls, and the increase of commtrce has l•:» WHAT IS KEAL PROPERTY. ble waters, and, after observing that the power exercised by the state over the lands and waters is notliing more than wliat is called the "jus reglum," the right of regulating, improving, and securing them for the benefit of every individual citizen, adds: "The sov- ereign jjower itself, therefore, cannot, consist- ently with the principles of the law of nature and the constitution of a well-ordered soci- ety, make a direct and absolute grant of the waters of tiie state, divesting all the citizens of tiieir common right. It would be a griev- ance which never could be long borne by a free people." iSTecessarily must the control of the waters of a state over all lands under them pass when the lands are conveyed in fee to private parties, and are by them sub- jected to use. In the case of Stockton v. Railroad Co., 32 Fed. Rep. 9, which involved a consideration by Mr. Justice JJradley, late of this court, of the nature of the ownership by the state of lands under the navigable waters of the United States, he said: "It is insisted that the property of the state in lands under its navigable waters is pri- vate property, and comes strictly within the constitutional provision. It is significantly asked, can the United States take the state house at Trenton, and the surrounding grounds belonging to the state, and appro- priate them to the purposes of a railroad depot, or to any other use of the general gov- ernment, without compensation ? We do not apprehend that the decision of the present case involves or requiies a serious answer to this question. The cases are clearly not par- allel. The character of the title or owner- ship by wliicli the state holds the state house is quite different from that by wiiich it holds the land under the navigable waters in and around its territory. The information right- ly states that prior to the Revolution the shore and lands under water of the naviga- ble streams and waters of the province of New Jersey belonged to tlie king of Great Britain, as part of the jura regalia of the crown, and devolved to the state by right of conquest. The iufnrmuUon does not state, however, what is equally true, that after the conquest the said lands were held by the stale, as they were by the king, in trust for the public uses of navigation and fishery, and the erection Ihereon oi wharves, piers, light- houses, beacons, and other facilities of navi- gation and commerce. Being subject to this trust, they were public! juris; in other words, they were held for the use of the people at large. It is true that to utilize the fisheries, especially those of shell fish, it was necessary to parcel them out to particular operators, and employ the rent or consideration for the benefit of the whole people; but this did not alter the character of the title. The land re- mained subject to all other public uses as before, especially to those of navigation and commerce, which are always paramount to those of public fisheries. It is also true that portions of the submerged shoals and fiats, which really interfered with navigation, and could better subserve the purposes of com- merce by being filled up and reclaimed, were disposed of to individuals for that purpose. But neither did these dispositions of useless parts affect the character of the title to the remainder." Many other cases might be cited where it has been decideii that the bed or soil of nav- igable waters is held by the people of the state in their character as sovereign in trust for public uses for which they are adantcd. Martin v. Waddell, 16 Pet. 367, 41U;' Pol- lard's Lessee v. Ilairan, 3 How. 212, 220; McCready v. Virginia, 94 U. S. 391, 394. In People v. Ferry Co., 68 N. Y. 71, 76, the court of appeals of New York saic' • "The title to lands under tide waters, with- in the realm of England, were by the com- mon law deemed to be vested in the king as a public trust, to subserve and protect the public right to use them as common high- ways for commerce, trade, and intercourse. The king, by virtue of his proprietary inter- est, could grant the soil so that it should be- come private property, but his grant was subject to the paramount right of public use of navigable waters, which he could neither destroy nor abridge. In every such grant there was an implied reservation of the pub- lic right, and so far as it assumed to inter- fere with it, or to confer a right to impede or obstruct navigation, or to make an exclu- sive appropriation of the use of navigable waters, the grant was void. In his treatise De Jure Maris (page 22) Lord Hale says: •The jus privatum that is acquired by the subject, either by patent or prescription, must not prejudice the jus publicum, where- with public rivers and the arms of the sea are affected to public use.' And Mr. Justice Best, in Blundell v. Catterall, 5 Barn. & Aid. 268, in speaking of the subject, says: 'The soil can only be transferred subject to the public trust, and general usage shows that the public right has been excepted out of the grant of the soil.' * * * "The principle of the common law to which we have adverted is founded upon the most obvious principles of public policy. The sea and navigable rivers are natural highways, and any obstruction to the common right, or exclusive appropriation of their use, is inju- rious to commerce, and, if permitted at the will of the sovereign, would be very likely to end in materially crippling, if not destroy- ing, it. The laws of most nations have sed- ulously guarded the public use of navigable waters within their limits against infringe- ment, subjecting it only to such regulation by the state, in the interest of the public, as is deemed consistent with the preservation of the public right." While the opinion of the New York court contains some expressions which may require explanation when detached from the particu- lar facts of that case, the general observations we cite are just and pertinent. The soil under navigable waters being held RIPARIAN TROPRIETORS. 23 by the people of the state in trust for the common use and as a portion of tlieir inherent sovereignty, any act of iegisliilion concern- ing their use affects the puiilic welfare. It is therefore appropriately witliin the exercise of tlie police power of tiie state. In Kewton v. Commissioners, 100 U. S. 548. it appeared that by an act passed by the legislature of Oliio in 181G it was provided that upon thefullillment of certain conditions by the proprietors or citizens of the town of Cantield tiie county seat should be perma- nently established in that town. Tliose comiitions having been complied with, tlie county seat was established therein accord- ingly. In 1874 the legislature passed an act for the removal of the county seat to an- other town. Certain citizens of Canlleld thereupon filed tlieir bill setting fortii the act of 1846, and claiming that the proceed- ings constituted an executed contract, and prayed for an injunction against the contem- plated removal. But the court refused the injunction, holding that there could be no contract and no irrepealable law upon gov- ernmental subjects, observing that legisla- tive acts concerning public interests are nec- essarily pubHc laws; that every succeeding leg slature possesses the same jurisdiction and power ms its predecessor; that the latter have the same power ol' repeal and modifica- tion wliicli the former had of enactment,— neither more nor less; that all occupy in this respect a footing of perfect equality; that this is necessarily so, in the nature of things; that it is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and pri'sent exigencies attending the subject may require; and tliat a different result would be fraught with evil. As counsel observe, if this is true doctrine as to the location of a county seat, it is ap- parent that it must apply with greater force to the control of the soils and beds of navi- gable waters in the great public harbors held by the people in trust for their common use and of common right, as an incident to their sovereignty. The legislature could not give away nor sell the discretion of its successors in respect to matters, the government of which, fiom the very nature of things, must vary witii varying circumstances. Tiie leg- islation which may be needed one day for the harbor may be different from tlie legis- lation that may be required at another day. Every legislature must, at the time of its ex- istence, exercise the power of the state in the execution of the trust devolved upon it. We hold, therefore, that any attempted cession of the ownership and control of the state in and over the submerged lands in Lake Michigan, by the act of April 16, 1869, was inoperative to affect, modify, or in any respect to control the sovereignty and do- minion of the state over tlie lands, or its ownership thereof, and that any such at- tempted operation of the act was annulled by the repealing act of April 15, 1873, which to that extent was valid and elFoctive. There can be no irrepealable contract in a conveyance of property by a grantor in dis- regard of a public trust, under which he was bound to hold and manage it. The legislation of tlie state in the lake front act, purporting to grant the fee of the submerged lands mentioned to the railroad company, was considered by tlie court be- low, in view of tlie preceding measures taken for the improvement of tiie harbor, and because further improvement in tiie same direction was contemplated, as a mere license to the company to prosecute such fur- ther improvement as an agency of tiie state, and that to this end the state has placed certain of its resources at the command of tiie com- pany, with such an enlargement of its pow- ers and privileges as enaliled it to accomplish the objects in view; and the court below, after observing tliat the act mi^ht be as- sumed as investing the railroad company with the power, not given- in its original charter, of erecting and maintaining wharves docks, and piers in the interest of commerce, and beyond tlie necessities or legitimate pur- poses of its own business as a railroa I cor- poration, added that it was unable to per- ceive why it was not com[etent for the state, by subsequent legislation, to repeal the act and withdraw the additional powers of the company, tliereby restricting it to the business for which it was incorporated, and to resume control of the resources and jirop- erty which it had placed at the command of the company for tlie improvement of the harbor. The court, treating the act as a li- cense to the company, also observed that it was deemed best, wlien that act was passeii, for the public interest, that the improvement of the harbor should be effected by the in- strumentality of a railroad corporation in- terested to some extent in the accomplish- ment of that result, and said: "But if tiie state subsequently determined, upon consideration of public policy, that tiiis great work should not be intrusted to any railroad corporation, and tliat a corporation should not be the owner of even a qualified fee in the soil under the navigable waters of the harbor, no provision of the national or state constitution forbade the general assem- bly of Illinois from giving effet t by legisla- tion to this change of policy. It cannot be claimed that the repeal of tlie act of 1869 took from the company a single right conferred upon it by its original charter. Tliat act only granted additional powers and privileges, for which the railroad company paid nothing, al- though, in consideration of the grant of such add.tional powers and privileges, it agreed to pay a certain per centum of the gross pro- ceeds, receipts, and incomes which it might derive either from the lands granted by the act, or from any improvements erected there- on. But it was not absolutely bound, by anything contained in the act, to make use of the submerged lands for the purposes con- templated by the legislature, — certainly not 24 WHAT IS REAL PROPERTY. witliin any given time, — and could not have been called upon to pay such per centum un- til after the lands w^ere used and improved, and income derived therefrom. The repeal of the act relieved the corporation from any obligation to pay the per centum referred to, because it had the effect to take from it the property from which alone the contemplated income could be derived. So tiiat the effect of the act of 1873 was only to remit the rail- road company to the exercise of the powers, privileges, and francliises granted in its orig- inal charter, and withdraw from it the addi- tional powers given by tlie act of 1869 for the accomplishment of certain public objects." If the act in question be treated as a mere license to tlie company to mTike the improve- ment in the harbor contemplated as an agency of the state, then we think the right to can- cel the agency and revoke its power is unques- tionable. It remains to consider the claim of the city of Cliicago to portions of the east water front, and how such claim, and the rights attached to it, are interfered with by the railroad com- pany. Tlie claim of the city is to the ownership in fee of the streets, alleys, ways, commons, and other public grounds on tlie east front of the city bordering on the lake, as exhibited on the maps showing the subdivision of frac- tional sections 10 and 15, prepared under the supervision and direction of United .states of- ficers in the one case, and by the canal com- missioners in the other, and duly recorded, and the riparian rights attached to such own- ership. By a statute of Illinois the making, acknowledging, and recording of the plats operated to vest the title to the streets, alleys, ways, and commons, and other public grounds designated on such plats, in the city, in trust for the public uses to which they were appli- cable. Trustees v. Havens, 11 111. 556; Chi- cago V. liumsey, 87 111. 354. Such property, besides other parcels, in- cluded the whole of that portion of fractional section 15 which constitutes Michigan ave- nue, and that part of the fractional section lying east of the west line of Michigan ave- nue, and that portion of fractional section 10 designated on one of the plats as "Public Ground," which was always to remain open and free from any buildings. The estate, real and personal, held by the trustees of the town of Chicago, was vested in the city of Chicago by the act of March 4, 1837. It followed that when the lake front act of 1869 was passed the fee was in the city, subject to the public uses designated, of all the portions of sections 10 and 15 partic- ularly described in the decree below. And we agree with the court below that the fee of the made or reclaimed ground between Randolph street and Park row, embracing the ground upon which rest the tracks and the breakwater of the railroad company south of Eandolph street, was in the city. The fact that the land which the city had a right to fill in and appropriate by virtue of its owner- ship of the grounds in front of the lake had been filled in by the railroad company in the construction of the tracks for its railroad and for the breakwater on the shore west of it did not deprive the city of its riparian rights. The exercise of those rights was onlysubject to the condition of the agreement with the city under which the tracks and breakwater were constructed by the railroad comjtany, and that was for a perpetual right of way over the ground for its tracks of railway, and, nec- essarily, the continuance of the breakwater as a protection of its works and the shore from the violence of the lake. With tliis reserva- tion of the right of the railroad company to its use of the tracts on ground reclaimed by it and the continuance of the breakwater, the city possesses the same right of riparian own- ership, and is at full liberty to exercise it, which it ever did. We also agree with the court below that the city of Chicago, as riparian owner of the grounds on its east or lake front of the city, between the north line of Kandolph street and the north line of block 23, each of the lines being produced to Lake Michigan, and in virtue of authority conferred by its charter, has the power to construct and keep in re- pair on the lake front, east of said premises, within the lines mentioned, public landing places, wharves, docks, and levees, subject, however, in the execution of that power, to the authority of the state to prescribe the lines beyond which piers, docks, wharves, and other structures, other than those erected by the general government, may not be ex- tended into the navigable waters of the harbor, and to such supervision and control as the United States may rightfully exercise. It follows from the views expressed, and it is so declared and adjudged, that the state of Illinois is the owner in fee of the Si-b:ner;je I lands constituting the bed of Lake Michigan, which the third section of the act of April 16, 1S69, purported to grant to the Illinois Central Railroad Company, and tliat the act of April 15, 1873, repealing the same, is valid and effective for the purpose of restoring to the state the same control, dominion, and ownership of said lands that it had prior to the passage of the act of April 16, 1869. But the decree below, as it respects the pier commenced in 1872, and the piers com- pleted in 1880 and 1881, marked 1, 2, and 3, near Chicago river, and the pier and docks between and in front of Twelfth and Six- teenth streets, is modified so as to direct the court below to order such investigation to be made as may enable it to determine whether those piers erected by the company, by virtue of its riparian proprietorship of lots formerly constituting part of section 10, extend into the lake beyond the point of practical navi- gability, having reference to the manner in which commerce in vessels is conducted on the lake, and if it be determined upon such investigation that said piers, or any of them, do not extend beyond such point, then that the title and possession of the railroad com- RIPARIAN RROPRIETORS. 25 pany to such piers shall be affirmed by the court; but if it be ascertained and determined that aucii piers, or any of tliem, do extend beyond such navigable point, then the said court shall direct the said pier or piers, to the excess ascertained, to b-' abated and re- moved, or that other proceedings relating thereto be taken on the application of the state as may be authorized by law, and also to order that similar proceedings be taken to ascertain and determine whether or not the pier and dock constructed by the railroad company in front of the shore between Twelfth and Sixteenth streets extend beyond the point of navigability, and to affirm the title and possession of the company if they do not extend beyond such point, and, if they do extend beyond such point, to order the abatement and removal of the excess, or that othei- proceedings relating thereto be taken on application of the state as may be author- ized by law. Except as modified in the par- ticulars mentioned, the decree in each of the three cases on appeal must be affirmed, with costs against the railroad company, and it is so ordered. 26 WHAT IS REAL PKOPERTY. HOWE V. ANDREWS. (26 Atl. 394, 62 Conn, 398.) Supreme Court of Errors of Connecticut. Dec. 6, 1892. Appeal from siiperior court, Tolland coun- ty; Fenn, Judge. Action by Emily M. Howe against Wil- liam R. Andrews to recover damages for tak- ing ice from plaintiff's millpond. From a judgment for plaintiff, defendant appeals. Affirmed. E. B. Sumner and H. Clark, for appellant G. A. Conant and J. T. Lyncb, for appellee. THAYER, J. The plaintiff owns a grist- mill and sawmill situated upon lier own land, and to supply water for operating the mills maintains a dam upon lands owned by the defendant and others, and thereby sets back the water of a small stream, creating a shallow pond, which covers about S^j acres of their land. The defendant took and car- ried away for mercantile purposes ice formed upon the pond, and to facilitate such taking and removal drove teams over the earthwork of the dam, and set wooden posts therein. Upon the trial to the jury the defendant's ti- tle to any of the land flowed was disputed by the plaintiff, and the plaintiff's right to use the ponded .water for the purposes of the sawmill was denied by the defendant; but for the purposes of the present consideration it may be assumed that the plaintiff had the right to maintain her dam and use the Avater of the pond for both of her mills, and that the defendant had the title to the land flow- ed. Each partj' upon the trial claimed the absolute ownership of the ice formed upon the pond; the plaintiff as incident to her right of pondage, the defendant as incident to his right to the soil. The chief questions raised by the appeal relate to the correct- ness of the judge's charge as given, and of his refusal to charge as requested, touching the defendant's right to the ice. Every own- er of land through which a stream of water runs has ordinarily a right to the use of the water of the stream as it is wont to run. This right may, however, be parted with. A lower proprietor may by purchase, adverse user, or by proceedings under the flowage act, acquire the right to dam the stream, and set back the water upon the land of the pro- prietor above, and to use the water thus ponded in various ways and for various pur- poses. Unless the upper proprietor has part- ed with or lost his right to so use the water of the stream, he may doubtless use it for domestic purposes, and for watering his stock and irrigating his land, although it has been thus ponded. He may make any use of it not inconsistent with the original or acquired rights of the owner below,— any use which works no actual and perceptible injury to his rights. When one has acquired the right to flow the lands of another for mill purposes only, the latter has not the right. as matter of law, to take and use for mer- cantile puiTposes the ice formed upon the pond over his land. This was expressly decided in Manufacturing Co. v. Smith, 34 Conn. 462. When such removal will cause a material in- jury to the pond owner in his use of the wa- ter for his mill, it may not be removed. Whether it will so injure him depends upon the facts and circumstances of each particu- lar ease, and the question must be determined by the trior. The defendant in his first and third re- quests asked the court in effect to charge without qualification that the ice upon the pond belonged to the defendant as owner of the soil, and in the fifth request to charge that, as owner of the soil, the defendant had the absolute right to remove the ice from the pond. The court correctly refused to charge as thus requested. The court instructed the jury that the plaintiff, as owner of the pond- age right, was not the absolute owner of the ice formed upon the pond, but that she had the right to have the ice remain upon the pond so long as and whenever such continu- ance would be useiul to her in the legiti- mate exercise of her right to use the water as motive power for her mills; and that, subject to this right, and only subject to it. the defendant, as owner of the soil, might make such use of the ice as did not interfere with or injure the plaintiff in her rights. This was a correct statement of the law, and a compliance with the defendant's second, fourth, sixth, and ninth requests to charge, so far as they were applicable to the case. The judge, however, at the close of his charge, read the defendant's requests, the ninth and fourth, with comments as follows: " 'Every proprietor of land through which a natural water course runs has an equal right to the use of it for every useful purpose to which it can be applied, as it is wont to run, without diminution or alteration; and a di- minution of the water by a riparian proprie- tor is not a violation of an adjoining or down- stream proprietor's rights, unless such di- minution is an actual injury to such adjoin- ing or down-stream proprietor.' Now, gen- tlemen, this request, while generally speak- ing, correct, should, as applied to this case, be taken with certain limitations, which I have already explained to you. Subject to those limitations which I have already given to you, I charge the same to be the law of the ease; and also, subject to a like limita- tion, I charge you, as further requested by the defendant, 'that the defendant has a right to use the water of the pond for wa- tering his cattle, irrigating his lands, for do- mestic pui-poses, and for any reasonable profit or advantage, which does not, in a per- ceptible or substantial degree, impair the op- eration of the plaintiff's mill.' " The defend- ant insists that by attaching the limitation referred to the court in fact refused to charge as requested,— "that the defendant, as owner of the soil, might use the ice upon the pond IlIPAKIAX PK01'i:iET0KS. 27 for any reasouable profit or advantage which did not in a perceptible and substantial de- gree impair the operation of the plaintiff's uiili." While, generally speaking, the ninth reQuest is a correct siatemtnt of the law, if given without limitation it would leave the jury to understand that in the present case the taking of the ice was not a violation of the plaintiff's rights if she still had the use of the stream as it was wont to flow. The court had already instructed the jury that, if the plaintiff had the right to pond the wa- ter for mill purposes, she had the right to have the ice remain upon the pond so long as and whenever its continuance would be use- ful to her in the operation of her mills, and that the defendant, in his use of the water, was subject to this right of the plaintiff. The court was correct in keep'ng tins limita- tion of the defendant's right in view, and in a,pplying the law of the request to the facts of the case in hand. And the same may be said regarding the like limitation of the fourth request. Several reasons of appeal are based upon that portion of the charge wherein the jury were told that the defendant might become liable for implied damages '"by the doing un- der a claim of right, and without the license and consent of the plaintiff of acts done per- sistently in defiance and disregard of her rights, regardless of whether they in fact injured her or not, and calculated to cause such injury, and calculated also, if continued, to ripen into rights by adverse user," and the reading in connection therewith of a portion of the opinion in Parker v. Griswold, 17 Conn, iiul. The jury were told that the damages in such a case would be merely nominal or trivial. A verdict was returned for substan- tial damages, and it thus appears that the jury must have found an actual specific in- jury to the plaintiff, and the defendant has not been injured by this portion of the charge. It is therefore unnecessai-y to con- sider the questions raised by these reasons of appeal. The language complained of in the second reason of appeal must be taken in connec- tion with the words which immediately fol- low it. When so taken, it is a correct state- ment of facts, and was unexceptionable. The court was also correct in constiniing the deeds which were in evidence, and leaving it to the jury to determine whether the deeds re- ferred to the land in question. Several other errors are alleged to have occurred in the charge, but as they were not much insisted on in the argument, and mani- festly worked no injury to the defendant, it is unnecessary to consider the questions. There is no error in the judgment appealed from. ANDREWS, C. J., and CARPENTER and TORRANCE, JJ., concurred. SEYMOUR, J., concurred in the result, but died before the opinion was wi'itten. 23 WHAT IS REAL PROPERTY. MASTENBROOK v. ALGER. (68 N. W. 213.) Supreme Court of Michigan. July 28, 1896. Appeal from circuit court, Kent county, in chancery; Allen C. Adsit, Judge. Bill by Jacob Mastenbrook against Frank C. Alger to enjoin a diversion of water from a stream for the purposes of irrigation. From a decree as prayed by plaintiff, de- fendant appeals, ilodifled. Charles L. Wilson and Myron H. Walker, for appellant. John M. Mathewson, for ap- pellee. MOORE, J. Complainant filed a bill, as the lower proprietor of land, alleging that the defendant, who was an upper proprie- tor, had constructed a dam across a water way which runs through complainant's land, the effect of which was to divert the water from its natural channel onto defendant's land, where it is wholly absorbed, and that none of the water is allowed to come to the land of the complainant. The bill contain- ed no allegation of damages, but it did aver that complainant has no other running wa- ter on his farm for his stock; that the stream of water runs near his house and barns, and is of great benefit to him for his natural purposes; that he has the equitable right to have the water flow across and up- on his land; that he has suffered damages, and has been deprived of the equitable right to the use of the water by defendant; and that he is remediless at law. The defendant ad- mits that he constructed a dam on his land, but denies that the dam prevents the flow of any water to the lower proprietor, but claims that one-half of it was allowed to flow to the lower proprietor. He claims that' his dam was in substantially the same place as was a dam erected in 1852 or 18.7)3, and which had been maintained long enough to give him a prescriptive right to maintain it; that one-half of the stream was diverted by the erection of the dam in 1852 or 1853; aud that he now has the right to divert one- half of the waters of said stream, and use them for irrigation or any other purpose. There was a large amount of testimony taken in the case, and Judge Adsit made a decree in which he found that the complain- ant was entitled to have the stream of water flow across his land for domestic purposes and stock, except as said stream may be lessened by the use by defendant of water for domestic purposes and stock. He fur- ther found that the volume of water fur- nished by said stream is barely sufiicient to sustain the stock of complainant, defendant, and other riparian proprietors along the stream, with water for their natural wants, and for domestic use, and that there is not a sufticient volume of water, so that the de- fendant can use any part thereof in the irri- gation of his land. He found that the de- fendant had obstructed the flow of water in said stream, aud used it for the purpose of irrigation, and tliat the appropriation of wa- ter by the defendant was contrary to the rights of complainant. He made a decree perpetually enjoining the defendant from appropriating any of the water to the pur- poses of irrigation, and from using the wa- ter for any other than ordinary purposes, in supplying the natural wants of the de- fendant, including the use of the water for domestic purposes in connection with his home, and the use of his farm. He also made in the decree a direction that the de- fendant forthwith remove any and all dams and obstructions made or maintained by him upon his land, or from interfering with, obstructing, or perverting the flow of said stream upon said lands of complainant, ex- cept as above stated. From that decree the defendant appeals. It is claimed by defendant that, inasmuch as there is no allegation in complainant's bill that he is damaged to the amount of $100, the bill did not confer jurisdiction on the court, and should have been dismissed. We do not think this contention can be sus- tained. Rowland v. Doty, Har. (Mich.) 3; White v. Forbes, Walk. (Mich.) 112, Something more than 500 pages of testi- mony was taken in the case. It would not be profitable to make an analysis of it here. A careful examination of the testimony shows that the decree of the learned judge was warranted by the facts shown, except in one particular. The record discloses that in 1852 or 1853 a dam was put across this stream, on the premises of defendant, for the purpose of diverting a portion of the stream to the house and barns occupied by the then proprietor, for the purpose of sup- plying the natural wants of the proprietor, including the use of the water for domestic purposes and for stock, in connection with his home and farm. This dam was main- tained, either at that place or at anoth^, suf- ficiently long, so that a prescriptive right is acquired to maintain it for the purpose of furnishing a supply of water for domestic purposes. The use of the water by defend- ant for purposes of irrigation is entirely un- warranted. It is not until very recently that an attempt has been made to use the water for that purpose. In view of the fact that this dam was maintained bo long for the purposes of conveying water to the house and bams of defendant, which is a great convenience to him, and the effect of removing the dam would do away with that valuable right, and compel the defendant to carry water a long distance, we think the decree ought to be modified in that partic- ular. The defendant should be allowed to have the use of so much of the water in said stream as shall be necessary for ordi- nary pui-poses in supplying his natural wants, including the use of the water for RIPARIAN PROPRIETORS. 2y domestic purposes and for stock, in connec- tion with liis liome and farm, and for no other purpose; and he ought to be allowed to maintain such a dam or obstruction in said stream as would enable him to convej the water to his house and barns in sufficient quantities for said purposes, and for no other purpose. The decree is modified to this extent, and affirmed in all other particulars; complainant to have costs in lower court. Neither party to have costs here. GRANT, J., did not sit The other jus- tices concuiTed. 30 WHAT IS REAL PROPERTY. SMITH et al. v. YOUMANS et al. (70 N. W. 1115.) Supreme Court of Wisconsin. April 30, 1897. Appeal from circuit court, Walwortti coun- ty; Frank M. Fish, Judge. Suit by Sliea Smith and others against Hem-y M. Youmans and others for an injunc- tion. From a judgment for plaintiffs, de- fendants appeal. Affirmed. This is an action to restrain the defendants from in any way or manner drawing down or lowering the water in Lake Beulah, so called, and is brought by a large number of riparian proprietors on and along the waters of said lake against the owners and lessee of a certain dam at or near the outlet, where- by the waters of the lake were raised to a sufficient level to create a water power for milling purposes. Upon a trial of the issues joined there was a tindiug of facts, in sub- stance: That Lake Beulah, as it now exists, j originally consisted of two meandered lakes, which were separated by a strip of marsh about SO rods wide, through which ran a small stream. The outlet of the more north- erly of the lakes was by a small stream call- ed Beulah river, which runs northerly, and then easterly until it empties into Mukwana- go creek, and said creek runs into Fox river. In 1838 a dam was built across the outlet of said lake at about the point where it left the lake, and the waters of the lake were raised a few feet, creating power for a saw- mill erected at the dam. After 1845, and be- fore 1852, the original outlet was closed by an embankment, and has ever since so re- mained, and an artificial outlet to said lakes was created, at which point another dam was created, raising the waters in said lake to the height of 6 feet above their natural level, and 18 inches higher than by the for- mer dam, creating a body of water known as "Mill Lake," and a new and artificial out- let for the said lakes, so that their waters, after passing over such dam, flowed by a new channel into said Beulah river, and in consequence of such dam the waters of the said two lakes were so raised as to flood to a considerable depth the marsh land for- merly separating them, and making of them one body of water upwards of three miles in length, and varying in width from a quar- ter of a mile to one mile and a quarter, and with an area of about »(X) acres. Ail these changes were made by Ball & Mower, the remote grantors of H. A. Youmans, under and through whom the defendants claim their rights and interests; and Ball & Mower built upon a site near said dam a grist mill, which was used and operated by the power thus provided until it was destroyed by fire in 1876. That the owners of the said dam and mill site at all times thereafter until shortly before the commencement of this ac- tion maintained the level of the water in said lakes at the point to which It was rais- ed by said dam, save only as it was raised by freshets or unusual rains, or was low- ered, as hereinafter stated, by draft of wa- ter through the said dam for use at said mill. By the construction and maintenance of said dam, and such consequent raising of the level of waters in said lakes, portions of the lands owned by certain of the plaintiffs and the grantors of certain others of them were flowed and submerged by such dam owners continuously, adversely, and uninter- ruptedly and notoriously, exclusively of any other right, under claim of right for more than 40 years, and at all times during that period the said level to which the waters were so raised by said dam was substantial- ly and constantly maintained; so that said Youmans and his said grantors and his heirs and devisees acquired a right by prescrip- tion to so flow said lands, both as against the owners of lands bordering on said lakes and as against riparian owners below said lands. One effect of the construction of said artificial outlet, and the diversion thereto of the natural flow of the waters of said lakes, and the construction and maintenance of said dam and embankment, was to deepen the waters of the lakes, and set said waters up and back against the hard and higher banks, and to make said lakes navigable for row boats, small sail boats and steam launches, and to make the banks eligible and desirable sites for summer'cottages and sum- mer resorts, and to make said lakes a desira- ble place for fishing, boating, and recreation, and to make the margin of the lake touch the grassy banks, and submerge the boggy and marshy shores, as they before existed, and to render the banks readily accessible by small row and pleasure boats. About the year 1888, and from time to time thereafter, sundry of the plaintiffs, relying upon said conditions, and the level of the lake as then existing, and as having so uniformly existed for more than 40 years, built summer homes for themselves and families, or summer re-. sorts for recreation, and purchased divers lots and parcels of land fronting and bound- ed on said lakes for that pui-pose, and made divers and sundry valuable improvements on said lots to that end, as did many other per- sons. That certain other plaintiffs named owned lots and lands bounded by said lakes, and had owned the same from an early day. That said lands, for agricultural purposes, were worth not more than $50 per acre, but for the purposes aforesaid, with the level of said lakes as thus maintained, were worth from $1,000 to $2,000 per acre. The dam be- longing to the defendants Youmans, Haight, and West consists of an embankment of earth, with two openings, one for a flume, and the other for a waste weir, and are planked on the bottom and sides, and after the destruction of the mill, and until a short time before the action was brought, were kept closed by bulkheads, backed up with RIPARIAN PROPRIETORS. 31 gravel; and after the destruction of the mill in 1^6 the power created by the dam had not been used. Tlie defendant .Tohn Howitt is, and for many years has been, the owner of a grist mill at Mulvwanago, upon a stream into which said Beulah river empties, aljout five miles below said dam, which is, and for 40 years past has been, driven by water power created by a dam across the said stream; and said Howitt, September IG, 1891, took from H. A. Youmans, then the owner of the dam and mill site at the foot of said lakes, a lease of the water power and water rights there created, and which still remained in force, and by it he was to expend a certain sum annually on the dam, flumes, and weirs of said water power, and was to do certain other work thereon. If the bulkheads were to be removed, and the water allowed to run freely through said dam, the level of the water in the Beulah Lake would be drawn down to a point over three feet below the lowest point to which the water was drawn in the operation of the mill formerly there maintained; and, if the dam should be removed, the said watei-s would fall to a point four feet further. The lowest point to which the waters were drawn, or could be drawn consistent with the operation of said mill, was a point 33 inches above the floor of the flume, where said bulkhead crosses the same in the west- ern opening in said dam; and the watere of the lake were continuously maintained at that point, until the defendants took out the bulkheads, a short time before this action was commenced, and drew down the waters of the lake to the level of the floor of said flume, to the great injury of the plaintiffs. That lowering the waters of said lake will siibstantially impair the value and availabil- ity of the parcels and lots of land owned by the plaintiffs and bounded on the lake; the waters will recede from its banks, and in almost all places strips of slimy, boggy, and marshy shore will be uncovered, preventing access by boats to the plaintiffs' piers, and will substantially impair, and well-nigh de- stroy, the beauty of the lake, and its adap- tation and availability for summer resi- dences and summer resoi-ts, and make the vicinity unhealthful, and render the plain- tiffs' improvements practically valueless for the purposes for which they Avere construct- ed. Shortly before the action was com- menced, said bulkheads were replaced to the height of two feet or more, and so that the waters of the lake rose and ovei-flowed the bulkheads. The plaintiffs asked judgment that the defendants, their agents, etc., be perpetually i*estrained from in any way rais- ing, taking out, or removing from the said dam any of the bulkheads or waste or flash boards in or on the same, and from in any way throwing down, lowering, or opening the dam, and fi'om in any way interfering with or drawing down tlie water in Lake Beulah. The defendants insisted upon their right to use and withdraw the waters of said lake according to their needs and discre- tion. .Judgment was given perpetually re- straining the defendants, their agents, etc., from doing any of the acts mentioned so as to peruiit or allow the flow of water from the lake at a level below the point named, 33 inches above the floor in the flume, etc., and for costs; from which the defendants appealed. Ryan & Merton and T. W. Haight, for ap- pellants. D. S. Tullar and Quarles, Spence & Quarles, for respondents. PINNEY, J. (after stating the facts). It clearly appears that H. A. Youmans, the lessor of the defendant Howitt, and ancestor through whom the other defendants derived their rights to the mill power and water rights and privi- leges in question, acquired a right by prescrip- tion, or an easement, to maintain the waters of Lake Beulah at the level to which they were flnally raised, and at which they had been maintained for a j^eriod of over 40 years, and consequently to set the waters of the lake back against and over and upon the lands of the riparian proprietors, the plaintiffs and others, oti the lake, for the purpose of creat- ing and maintaining the necessary power for propelling a grist mill. His mill site, dam, and appurtenances constituted the dominant estate, and the right which he acquired was an easement in the one estate, and a servitu le upon the estates of other riparian owners. Washb. Easem. 5. It seems to be a fair infer- ence that such riparian owners, in view of the advantages that might or would accrue to them by raising the level of the waters of the lake by the dam in question, were induced to consent or acquiesce therein, and in the aser of the dam and waters of the lake by You- mans and his predecessor in interest until their acts had ripened into an easement by prescrip- tion. The relative relations and interests of the parties which have thus originated, grown up, and become fixed by prescription, would seem to impose upon the parties reciprocal rights and duties, at least to the extent that, so long as such relative rights exist and are asserted, each party is bound in equity to ab- stain from doing anything to the prejudice of the other's rights, founded upon the relations thus created between them, and that tliey are equitably bound to deal fairly, reasonably, and justly with each other in respect thereto. It has long been settled that the artificial state or condition of flowing water, founded upon prescription, becomes a substitute for tlie nat- ural condition previously existing, and from which a right arises on the part of those in- terested to have the new condition maintained. The water course, though artificial, may have originated under such circumstances as to give rise to all the rights that riparian proprietors have in a natural and permanent stream, or have been so long used as to become a nat- ural water course prescriptively; and "when a / 32 WHAT IS REAL PROPERTY. riparian owner has diverted the water into an artificial channel, and continued such change for more than twenty years, he cannot restore it to its natural channel, to the injury of other proprietors along such channel, who have erected works or cultivated their lands with reference to the changed condition of the stream, or to the injury of those upon the arti- ficial water course who have acquired by long user the right to enjoy the water there flow- ing." Gould, Waters, § 225, and cases there cited. It is upon this ground that when the natural outlet of Lake Beulah was closed, and so remained for over 20 years, the artificial outlet at that time opened, and since main- tained during that period, became the natural outlet, with all its legal incidents and conse- quences. In Belknap v. Trimble, 3 Paige, 577, 605, it was held "that the rule must be re- ciprocal; that the proprietor of land at the head of a stream, who changes the natural flow of water, and has continued such change for 20 years, cannot afterwards be permit- ted to restore the flow of water to its natural state, when it will have the effect to destroy the mills of other proprietors, which have been erected in reference to such change in the nat- ural flow of the stream." Washb. Fnsp:'^' *313-315. In Mathewson v. Hoffman, 77 Mich. 421, 434. 43 N. W..879, the rule thus stated in Belknap v. Trimble, supra, was ap- proved. Lampman v. Milks, 21 N. Y. 505; Roberts v. Roberts, 55 N, Y. 275. It is also supported by Delaney v. Boston, 2 Har. (Del.) 489-i91; Middleton v. Gregorie, 2 Rich. Law, 631-637. In Washb. Easem. *313-315, the leariaed author lays it down that: "Where one who owns a water course, in which another is interested, or by the use of which anotlier is affected, does, or suffers acts to be done, affect- ing the rights of other proprietors, whereby a state of things is created which he cannot change without materially injuring another, who has been led to act by what he himself had done or permitted, the courts often apply the doctrine of estoppel; and equity, and sometimes law, will interpose to prevent his causing such change to be made." In Woodbury v. Short, 17 Vt. 387, it was held that, where a diversion of the stream affects other proprietors favora- bly, and the party on whose land the diver- sion is made acquiesces in the stream running in the new channel for so long a time that new rights may be presumed to have accrued, or have accrued, in faith of the new state of the stream, the party is bound by said acquies- cence, and cannot return the stream to the former channel. Ford v. Wliitlock, 27 Vt. 265; Norton y. Volentine, 14 Vt. 246. These cases relate, it is true, to diversions of water in running streams, but we are unable to per- ceive any reason why the same principle is not eqvially applicable to changes made in the level of a lake or pond, where, by means of a dam, the natural level has been raised for hy- draulic purposes. The maintenance of the higher level of waters in the lake for the pe- riod of prescription secured to the owners of the mill site an easement in their favor to keep up the water to the necessary level to furnish water power for their mill. So, on the other hand, the riparian owners above have enjoyed, without question or interruption, for the same period of time, the advantages result- ing from the flooding and submersion of their lands, by wliich the depth of water in the lake was greatly increased, and low, boggy, swampy, and unsightly lands were flooded, so that the waters extended to the high banks, whereby their access to and from the lake was improved, and the adjacent lands, with the re- sulting amenities and advantages, have been rendered extremely desirable for the particu- lar use for which they have been improved at great cost and expense, namely, for summer resorts, relying upon the continued level of the water in the lake without change, without which they would be deprived of the greater portion of their present value. Ma.v it not be justly said that the respective tenements or es- tates, by the acts of their respective owners, have become each dominant, and each servient to the other in respect to the respective ease- ments and advantages thus acquired by them, and enjoyed during the usual prescriptive pe- riod? In the case of Cedar I^ake Hotel Co. v Cedar Creek Hydraulic Co., 79 Wis. 297, 48 N. W. 371, this court held that one who owns land on the shores of an inland lake, which is valuable for use as a pleasure resort, on ac- count of its proximity thereto, and the easy access to its waters for boating and fishing, can maintain an action to restrain other ri- parian proprietors from so drawing off the wa- ters of the lake as to lower its level, and leave a wide margin of bog, covered with decaying vegetation, along its shores, making it repul- sive in appearance and unhealthy in effect, and thus injurious to the plaintiff's property; and this was so held in view of the relative rights and duties of the riparian proprietors, and not because of the restrictive grant of power to the corporation, one of the defend- ants. It is true that this was held in relation to an attempted change in the natural level of Cedar Lake, but the conclusion seems irre- sistible that the increased level of the lake, in view of the facts found, by parity of reason- ing from the adjudged cases referred to in re- lation to streams, must be esteemed as having the legal incidents of the natural level; cer- tainly so long as the defendants retain and in- sist upon their easement to keep and main- tain the dam at a height to keep up such new level in the lake. They have not and do not propose to abandon or surrender this easement. They are certainly bound to exercise their rights in a fair and reasonable manner, and as they had been accustomed to do, and not ca- priciously or wantonly, so as to prejudice the existing rights and interests of the plaintiffs as riparian owners. The judgment of the cir- cuit court is in accordance, we think, with sound principles, and the doctrines recognized and enforced in such and similar eases in courts of equity. We have no doubt but that the de- RIPARIAN PROPPTETORS. 33 fendants may abandon their water rights and easement, so as to escape all liability at law for consequent damages, if they are not bound by law or agreement to maintain the higher level of the waters of the lake. It was held in Mason v. Railway Co., L. R. 6 Q. B. 578, that the owners of the servient estate could acquire, by the mere existence of the easement, no right, as against the owner of the dominant tenement, to the continuance of its use and ex- ercise, as in the case of an easement for diver- sion of water; that he had the right to aban- don the exercise and use of his easement, as it was not compulsory. But here, as stated, there has been no abandonment or surrender, and the case must be determined upon the equitable grounds arising out of the special facts found by the trial court. 2. As to the defendant Hewitt, it Is neces- sary only to observe that he staxids, in respect to his lease, in the same plight and condition GATES,R.P.— 3 of his lessor, and with no other or greater rights. He has no right, under the lease, to use the dam, bulkhead, etc., as a reservoir to ac- cumulate water in a manner not permissible to his lessor, or to accumulate and hold water for his mill on the stream below, in order to discharge it irregularly, and in great volumes, as may suit his convenience, thus drawing down wholly, or in great part, the waters of the lake to the level of the flume. As a ri- parian owner on Mukwanago creek below, he has no such right, but is entitled only to the accustomed flow of the water as it had been wont to run, without material alteration or diminution, and to his mill on the stream be- low (Kimberly & Clark Co. v. Hewitt, 79 Wis. 334, 48 N. W. 373), all of which he obtaias by the flow of the water over the dam or waste gates. For these reasons we think that the judgment of the circuit court is correct. The judgment of the circuit court is affirmed. 34 WHAT IS REAL PROPERTY. OCEAN GROVE CAMP MEETING ASS'N V. COMMISSIONERS OF ASBURY PARK. (3 Atl. 168, 40 N. J. Eq, 447.) Court of Chancery of New Jersey. Oct. Term, 1885. On order to show cause why injunction should not issue. R. Ten Broeck Stout, for complainants. D. Harvey, Jr., and J. F. Hawkins, for defendants. BIRD, V. C. More than 15 years ago the complainants purchased a large tract of land fronting upon the ocean, chiefly for the pur- poses of a summer resort to exercise the right of worship. The enterprise has so grown that in winter it has a population of about 5,000, and in summer of 10,000 or 15,000. The au- thorities soon discovered that, to preserve the good health of the residents and visitors, it was absolutely necessary to improve their water- supply and sewerage system. To do this they bored for water,. and at the depth of over 400 feet struck water which gave them a flow of 50 gallons per minute at an elevation above the surface of 28 feet. This they carried into the city by means of pipes, and supplied there- with about 70 hotels and cottages. They also applied it to the improvement of their sewer- age system. The volume of water thus pro- duced continued to flow undiminished in quanti- ty and with unabated force imtil the action of the defendants now complained of, and to re- strain which the bill in this cause was filed. The Commissioners of Asbury Park, a corpor- ate body, purchased a large tract of land im- mediately north of and adjacent to the tract owned by Ocean Grove. Under their manage- ment, this, too, has become a famous seaside resort. Its population is equal to, if not great- er at all times than, that of Ocean Grove. The authorities saw a like necessity for an increas- ed supply of wholesome water. They entered into a contract with others, a portion of these defendants, to procure for them water by bor- ing in the earth. These, their agents, sank several shafts to the depth of over 400 feet without satisfactory success. One shaft yield- ed about 4 gallons to the minute, and another, which yielded the most, only 9. All of the wells were upon the land and premises of the Asbury Park Association. It became evident, and is manifest to the most casual observer, that these wells would not supply the volume of water needed. It was also manifest that the experiment to procure water by digging upon their own land had been quite reasonably ex- tended, although not so complete as to satisfy the mind that they cannot obtain water on their own premises as well as elsewhere, since it is in evidence that there are two wells on their premises, sunk by individuals, which produce 16 gallons each per minute, being as much in quantity as they procure from the well which is complained of. Failing in their efforts upon their own premises, they go elsewhere, on the land owned by individuals, and, procuring a right from individual owners, sink a shaft upon the public highway, near to the land of the complainants, and within 500 feet of the com- plainants' well. This bore extended to the depth of 416 feet, within 8 feet of the depth of complainants' well. At this depth they se- cured a flow of water at the rate of 30 gallons per minute, and the supply from the complain- ants' well was almost immediately decreased from 50 gallons to 30 per minute. The diminu- tion in water was immediately felt by many of those who depended for a supply from this source in Ocean Grove. The Asbury Park au- thorities propose to sink other wells still nearer the well of complainants. This bill asks that they may be prohibited from so doing, and that they may be commanded to close the well al- ready opened, which, it is alleged, is supplied from the same source that the complainants' well is supplied from. The complainants are first in point of time. They are upon their own land and premises. They procure water from their own soil to be used in connection with their said premises, in the improvement and beneficial enjoyment of their occupation. In this they have exercised an indefeasible and unqualified right. It mat- ters not whether the water which they obtain is from a pond or under-ground basin, or only the result of percolation, or from a flowing stream. The defendants went from their own land upon the land of strangers, and obtained permission to bore for water, and there sink their shaft, procuring water from the same source that the complainants procured their water, and diverted it and carried it to their premises, three-eighths of a mile, for use. Can they be restrained from doing this? A very careful consideration of a great many authori- ties leads me to the conclusion that they can- not at the instance of the complainants. Ang. Water-Courses, §§ 109-114, inclusive; Gould, Waters, § 280; Ballard v. Tomlinson, 26 Ch. Div, 194; Chasemore v. Richards, 7 H. L, Cas. 349, 5 Hurl. & N. 982; Acton v. Blundell, 12 Mees. & W. 324; Chase v. Silverstone, 62 Me. 175; Roath v, DriscoU, 20 Conn, 533; Village of Delhi V, Youmans, 45 N, Y, 362; Goodale v. Tuttle, 29 N. Y. 459; Wheatley v. Baugh, 25 Pa. St. 528; Frazier v. Brown, 12 Ohio St. 294. The courts all proceed upon the ground that waters thus used and diverted are waters which percolate through the earth, and are not dis- tinguished by any certain and well-defined stream, and consequently are the absolute prop- erty of the owner of the fee, as completely as are the ground, stones, minerals, or other mat- ter to any depth whatever beneath the surface. The one is just as much the subject of use, sale, or diversion as the other. Ttie owner of a mine encounters innumerable drops of water escap- ing from every crevice and fissure. These, when collected, interfere with his progress, and he may remove them, although the spring or well of the land-owner below be diminished or destroyed. So the owner or owners of a bog, UNDERGKOUND WATERS. 85 marsh, or meadow may sink wells therein, and carry off the waters collected in them, to the use or enjoyment of a distant village or town, although the waters of a large stream upon the surface be thereby so diminished as to injure a mill-owner who had enjoyed the use of the waters of the stream for many years. Upon these principles, there can be no doubt but that €very lot-owner in Ocean Grove or Asbury Park •could sink a well on his lot to any depth, and, in case one should deprive his neighbor of a por- tion or all of his supposed treasure, no action would lie. A moment's reflection will enable every one to perceive that such conditions or contingencies are necessarily incident to the ownership of the soil. In the case before me there is no proof that the waters in question are taken from a stream, and I have no right to presume that they are. The presumption is the other way. It seems to be my very plain duty to discharge the order to show cause, with costs. 36 WHAT IS REAL PROPERTY. WILLIS V. CITY OF PERRY. (60 N. W. 727, 92 Iowa, 297.) Supreme Court of Iowa. Oct. 22. 1894. Appeal from district court, Dallas county; J. H. Henderson, Judge. Action for damages caused by diverting water from a flowing well. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. Shortley & Harpel, for appellant. White & Clark, for appellee. KINNE, J. The undisputed facts in this case are that in ISSS plaintiff sunk a well on ner lot in the city of Perry, Iowa, and se- cured a flow of water therefrom, which rose to a height of several feet above the surface of the ground. She erected a bath house, and piped the water from the well into said house and the bath tubs therein, and built up a large and profitable business. In 1890 one Blank sunk a well on his ground, near to plaintiff's well; and, very soon after, one Burrington sunk a well on his land near plaintiff's well. Both the Blank and Bur- rington wells were situated on ground consid- erably lower than was plaintiff's. Prior to the sinking of these last two wells, plaintiff had put a "goose neck" on her well, about 3 feet or 31/2 feet high, and the water was dis- charged therefrom with great force and con- stautly. After the Blank and Burrington wells were sunk and had commenced to flow, the stream from plaintiff's well was lighter, and it would only raise three feet high. Plaintiff then lowered the goose neck so that it was about two feet high. In 1891 defend- ant city, for the purpose of supplying water to its citizens, sunk three wells on its grounds about a block from plaintiff's well. They were all four inches in diameter, and a flow of water was secured from each of them. In the fall of 1891 the city erected works and pumping machinery, and attached the same to said wells, and pumped from them such quantities of water as were needed for the city supply. After the city wells began flow- ing, and when they were left open, the water in plaintift''s well ceased to flow, and the wa- ter seems to have stood therein at about the level of the ground. When caps were put on the city wells, plaintiff's well would flow. The city wells were on lower ground than plaintiff's well. After the city attached its pumping machinery to its wells, and when it was pumping, there would be no flow at all from plaintiff's well, and this condition of affairs continued to exist for some length of time after the city ceased pumping. Some- times, after the city had been pumping, it would be two or three hours, and at other times five or six hours, before the flow of wa- ter from plaintiff's well would begin. At times, when the city was not pumping, the caps would be removed from its wells, which would release the water, and permit it to flow and waste, and during these periods there was no flow from plaintiff's well. The Blank and Burrington wells appear to have been flowing most of the time, whether in use or not. Plaintiff's well was permitted to flow^ when it would, and the water wasted into the creek. Prior to the sinking of the city wells, plaintiff had used the water from her well for domestic purposes, and for giv- ing baths in her bath house, and had sold some of the Avater. She had also used it in washing for her bath house. At flrst the wa- ter was carried in buckets to the bath house, but after-wards it was forced by steam and mechanical appliances from the well into tanks in the bath house. These appliances are thus described by a witness: "The flrst siphon was used to raise the water to the tanks for heating. The siphon was attached to the pipe about two feet above the surface of the ground, and then there was a horizon- tal pipe about ten feet long running from it to the well, and which was lowered about a foot or a foot and a half after the city wells were ■ put in. Steam was conducted from the boiler through a pipe into the siphon, and then the water was forced out into the tank and dis- tributed." There is a conflict in the testi- mony as to what efforts plaintiff made to se- cure water from her well after the city wells were sunk and being operated; but we think it fairly appears that she put in a larger boil- er, and made certain other changes in the machineiT, and she claims that she could not draw the water when the city was pump- ing, and that by reason of the sinking of the wells by the city, and its permitting them to flow, and by pumping water from them, she was deprived of water, for all purposes, for over half of the time. The defendant claims that plaintiff, with her machinery and appli- ances, if properly operated-, could at all times have supplied herself from her well with an abundance of water for all purposes. Plain- tiff claims special damages in the sum of $116.55, expended in order to save herself from damages by reason of defendant's acts. Defendant denies that it diverted the water from plaintiff's well, and avers that in all respects it, in sinking its wells and in using them, exercised prudent care and caution to the end that the water should not be wasted, and that it used only so much of said water as was necessary to supply the demands and needs of said city; denies that its use of the water interfered with plaintiff's use of her bath house, or, if it did so, it was only for one or two hours each day, and while the defendant was pumping water from its wells, into its stand pipe; that there is at all times in the subterranean stream ample and suf- ficient water to supply all the wants of plaintiff. A jury trial was had, and a ver- dict rendered for plaintiff for $475, and judg- ment was entered thereon, from which de- fendant appeals. 2. While, in the issues as made, the ques- tion as to these wells being all supplied from the same subterranean stream is in contro- UXDEKGROUXD WATERS. 37 versy, still the cause was tried upon the theory that all of these flowing wells were in fact supplied from one and the same sub- terranean stream, and, indeed, so far as ap- pears from the record, it would seem that the indications all tend to sustain that theory. In deciding the questions presented, we nmst determine by what rule of law the rights of the parties to this unseen stream of water are to be measured. Subterranean water courses are of two classes: First, those whose channels are known or defined; and. second, those whose cliannols ai'e miknown and undeJlued,— and the principles of law gov- erning the former are not applicable to the latter. Kin. Irr. § 48. If, in fact, or by reasonable inference, it is known that a sub- teiTanean .sti'eam of water flows in a well- defined channel, capable of being distinctly traced, it is said to be governed by the rules of law applicable to streams flowing upon the surface of the earth. Such is the general rule, to which, however, we think there are some exceptions, which will hereafter be con- sidered. Bm-roughs v. Saterlee, 67 Iowa, 400, 25 N. W. SOS; Kin. Irr. § 48; Black's Pom, Water Rights, § 67; Gould, Waters, § 2S1; Washb. Easem. p. 516; Ang. Water Com'ses, § 112; Dickinson v. Canal Co., 7 Exch. 282; Chasemore v. Richards, 2 Hm-1. & N. 186; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 470, Fed. Cas. No. 2,989; Smith V. Adams, 6 Paige, 435; Mason v. Cotton, 4 Fed. 792; Trustees, etc., v. You- mans, 50 Barb. 320; W^heatley v. Baugh, 25 Pa. St. 531; Dudden v. Guardians, etc., 1 Hurl. & N. 627; Frazier v. Browu, 12 Ohio St. 300; Hanson v. JlcCue, 42 CaL 303; Sti-ait V. Brown, 16 Nev. 321; Whetstone v. Bowser, 29 Pa. St. 59; Saddler v. Lee, 66 Ga. 45; Acton V. Blundell, 12 Mees. & W. 324; Halde- man v. Bruckhai't, 45 Pa. St. 514; Hale v. McLea, 53 Cal. 578. The general rule gov- emiug surface streams is that "prima facie every proprietor on each bank of a river is entitled to the land covered with the water to the middle of the thread of the stream, or, as is commonly expressed, 'usque ad filum aquae.' la vU'tue of this ownership, he has a right to the use of the water flow- ing over it, in its natm-al current, without diminution or abstraction; but, strictly speak- ing, he has no property in the water itself, but a simple use of it as it passes along." Tyler v. Wilkinson, 4 Mason, 400, Fed. Cas. No. 14,312; Kin. Irr. ■§ 59, and cases cited. In other words, every riparian owner has a right to use the water in the stream as it passes along, and an equal right with those above and below him to the natiu-al flow of the water in its accustomed channel, with- out unreasonable detention, or substantial diminution, either in quality or quantity, and none of such owners have the right to use the water to the prejudice of the others, unless such a right has been acquired by license, gi'ant, or prescription. Kin. Irr. § 60; Gould, Waters, §§ 213, 214; Ang. Water Com-ses, § 93; Heath v. Williams, 25 Me. 209; 43 Am. Dec. 275, and notes; Garwood v. Railroad Co., 83 N. Y. 405; Ware v. Allen. 140 Mass. 513, 5 N. E. 629, and notes; Railroad Co. v. Miller, 112 Pa. St. 34, 3 Atl. 780, and note; Gould, Waters, § 204; 3 Kent, Comm. 439; Blanchard v. Baker, 8 Greenl. 260; Bealey v. Shaw, 6 East, 208, 214; Pope v. Kinman, 54 Cal. 3; Plumleigh v. Dawson, 1 Gilman, 544; Wheatley v. Chrisman, 24 Pa. St. 302; Weiss V. Steel Co., 13 Or. 496, 11 Pac. 255. Now, each riparian owner has a right to use the water of a surface sti-eam for or- dinary or natural uses, and, under certain circumstances, for artificial uses, such as for irrigation and the like; and the better law seems to be that he may use the water for his natm'al and ordinary wants, regardless of the effect upon other proprietors on the stream; that is, as we understand the rule, one riparian proprietor may, for his uatm'al wants, if necessary, use all of the water in a surface sti'eam, to the exclusion of every other such proprietor, certainly so as against the other proprietor using the water for artifi- cial purposes. Pom. Rip. Rights, §125; Spence V. McDonough, 77 Iowa, 462, 42 N. W. 371; Kin. Irr.'§§ 65, 06; Gould, Waters, § 205; Ang. Water Com-ses, § 93; Stanford v. Felt, 71 Cal. 24i/, 16 Pac. 900. In case, however, such a proprietor puts the water to an exti-aordi- nary or artificial use, he must do so in such a manner as not to interfere with its lawful use by others above or below him upon the same stream. Kin. Irr. § 65; Ang. AVater Courses, § 93. As to extraordinary or arti- ficial uses, the rights of all proprietors on the stream are equal (Gould, Waters, § 206, and cases cited; Dumont v. Kellogg, 29 Mich. 422); and the artificial use is held to be al- ways subordinate to the natm-al use. If there is not water enough to more than sup- ply the natural wants of the several ripai'iau owners, none can use the water from the stream for artificial purposes. Ordinary or natm-al uses have been held to include the use for domestic pm-poses, including house- hold purposes, such as cleansing, washing, and supplying an ordinary number of horses or stock with water, and it is said that nat- ural uses are limited to the purposes above stated. Kin. Irr. § 66, and cases cited; Black, Pom. Rip. Rights, § 138, and citations; Gould, Waters, § 205; Ang. Water Courses, § 93; Garwood v. Raihoad Co., 83 N. Y. 405; Stan- ford V. Felt, 71 Cal. 250, 16 Pac. 900. Now. what is a reasonable use of the water of a surface stream for artificial purposes? Clear- ly, such a use as permits the return of the water used to the stream in its natm*al chan- nel, without corruption or sensible diminution in quantity. By this is not meant that all the water must be returned to the stream, be- cause in the use some will necessarily be lost or wasted. "VATiat is or constitutes such rea- sonable use must be determined in view of the size and capacity of the stream, the wants of all other proprietors, the fall of the water, 38 WHAT IS KEAL PROPERTY. the character of tlie soil, the number of pro- prietors to be supplied, and all other circum- stances. 'In no case, however, is reasonable use to be determined in view of the neces- sities or business of any one proprietor, but the rights of each in the stream for artificial uses are to be determined in view of all of the circumstances as affecting all of the pro- prietors. Kin. Irr. § 76, and cases cited; Jones V. Adams, 19 Nev. 78, 6 Pac. 442; Para Rubber-Shoe Co. v. City of Boston, 139 Mass. 155, 29 N. E. 544. As one who uses water from a well supplied from a subterranean stream cannot retiu:n to such stream the water he may use, or any part of it, it follows that the rules of law governing the use of water from sm-face sti-eams cannot in all re- spects be said to control in a case like that at bar. As to a surface stream, the riparian owner may use the entire stream for ex- traordinary purposes, provided he season- ably, and without sensibly diminishing its volume or impairing its quality, retmnis it to its accustomed channel. But in this case he could have no such right, else he might for ai'tificial pui-poses exhaust the entire stream, to the detriment of other well owners situat- ed thereon, and who would be entitled to the use of the water for domestic pm'poses, as against any artificial use. It seems to be conceded that the use of the water by the city was an unusual and extraordinary use; that it was not what is spoken of in the books as a natural use, for, if it was, then the city would, under the authorities cited, be entitled to use all of the water if it need- ed it. Was not plaintiff's use of the water an extraordinary and artificial use, in so far as she used the same for the purpose of op- erating her bath house and steam washer for washing bathing towels? We think it was. If such a use can be treated as a natural use, as for domestic purposes only, then she might thus exhaust the entire stream, to the damage of all others having the right to use it even for natural uses. Just what is or is not an artificial use cannot be defined so as to cover all cases that may arise, but it is not easy to discern the dif- ference in principle between the use of water for manufacturing purposes, which is usual- ly held to be an artificial use, and its use for operating a bath house. Neither use is for domestic piu-poses, as ordinarily under- stood. Applying the law to the facts of this case, we think it is clear that, for any dam- age done by defendant to plaintiff in de- priving her of the free and accustomed use of the water in her well for the usual domestic purposes, the city would be liable, because, in any event, its use of the water was for ex- traordinary and artificial purposes. Whetlier defendant would be liable for using its wells in the supplying of water to the inhabitants of the city, thereby at times interfering with plaintiff's supply of water for the purpose of operating her bath house, depends upon the reasonableness of defendant's use of its wells. As to this, we have already seen that the reasonableness of the use is not to be meas- m'ed by the wants or necessities of the de- fendant, but it is to be determined in view of all the facts and circumstances, and in view of the number and wants of other well owners on the stream. It does not appear that there are any wells tapping this sub- terranean stream other than those heretofore mentioned; nor does it appear with any de- gree of certainty as to what were the wants or needs of the owners of the Blank and Bm-rington wells. It appears that defendant pumped from its wells from 200 to 1,000 gal- lons of water each day, and that when the pumping was going on, and for several hours afterwards, no water flowed from plaintiff's well. As near as can be ascertained from the evidence, plaintiff required about as much water for her bath house as the city was using. The city's plant was new. It had as yet but few consumers of water. Each party, for ai'tificial pmi^oses, had an equal right to use the water, and each was bound to so exercise that right as to cause the other the least inconvenience and damage. From the nature of the case, neither of the parties being able to return the water to the stream from whence it came, the reasonableness of the use is to be determined in view of that as well as other facts. Both having an equal right to the water for artificial uses, neither could so exercise that right as to wholly de- prive the other of its use at any time. We think the evidence shows that the city not only deprived the plaintiff of the use of her weU for domestic pm'poses for much of the time, but it also deprived her entirely of its use for a portion of the time for her bath house. 3. Plaintiff and her husband, as witnesses on the stand, were permitted, against defend- ant's objection, to testify as to the profits made from the bath business. Other wit- nesses, also, against defendant's objections, testified to the use and extent of the patron- age of the bath house. It is said that evi- dence of profits is too remote, is speculative, and not the proper measure of damages. Doubtless, in such a case, the rental value of the bath house for the time plaintiff was deprived of its use by defendant's acts would be the measure of her damages. But how is rental value to be shown in such a case if not from the character and extent of the use of the building? In Sutherland on Dam- ages (volume 1, § 70) it is said: "The law, however, does not require impossibilities, and cannot therefore demand a higher de- gree of certainty than the nature of the case admits. If a regular and established busi- ness is wrongfully interrupted, the damages thereto can be shown by proving the usual profits for a reasonable time anterior to the wrong complained of." In Wolcott v. Mount. 36 N. J. Law, 262, it is said that the earlier cases, "both in English and American courts, concur in excluding, as well in actions in i UNDERGROUND WATERS. 39 tort as in actions on contracts, from the dam- ] ages recoverable, profits which mifjht have been realized if the injury had not been done or the contract had been performed. This abridgment of the power of courts to award compensation adequate to the injury suf- fered has boon removed in actions of tort. The wrongdoer must answer in damages for those results, injurious to other parties, which are presumed to have been within his contemplation when the wrong was done." This rule is well supported by the authori- ties. Gibson v. Fischer, G8 Iowa, 31, 25 N. W. 914; Sedg. Dam. p. SO, note 1; Hamer v. Knowles, 30 L. J. Exch. 102; Bridge v. Fisk, 23 N. H. 171; Chandler v. Allison, 10 Mich. 460; Wood, Nuis. 892; Dubois v. Glaub, 52 Pa. St. 238; Fultz v. Wycoff, 25 Ind. 321; Park V. Railroad Co., 43 Iowa, G3G; Simmons V. Brown, 5 R. I. 299; White v. IMosely, 8 Pick. 35G; Gladfelter v. Walker, 40 Md. 3; Goebel v. Hough, 2G Minn. 252, 2 N. W. 847; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 k E. 686; Holden v. Lake Co., 53 N. H. 552. In the case of City of Terre Haute v. Hudnut, supra, this question was elaborately discussed, and the authorities collected. It is there said, in speaking of past profits: "What exists in the present or has existed in the past cannot be considered a matter of speculation." It was said by Seevers, J., in Gibson v. Fischer, supra: "Besides this, the rental value must depend on and be measured by the extent of the profits. If there w-as absolute certainty in human evi- dence, the one should amoimt to precisely the same as the other. When the profits are ascertained, the value of the use or rental value is certainly known." We conclude, then, that the evidence as to past profits was properly admitted, not as fixing the measure of damages, but to assist the jury in estimating the damages. In determining damages in a case like that at bar, what evi- dence would be adduced which would better enable the jury to determine plaintiff's dam- ages than to show what the business had earned? Rental value is of necessity de- pendent upon what can be made out of a business or property for the uses for which it is devoted or adapted. These net earnings covering a period of several months before the injury, while by no means conclusive as to the rental value, furnish a fairly safe basis from which to estimate the damages. If, as is contended, the erection of defend- ant's waterworks resulted in the building and opening of other bath houses, or in the putting in of bath tubs in private residences, whereby plaintiff's patronage would have been lessened, such facts could have been shown. For the same reasons, it was proper to show the extent and character of the pat- ronage of plaintiff's bath house. 4. It is urged that past profits should not have been shown, because it appeared that, by a moderate expenditure of money, plain- tiff could have saved herself from loss, and that it was her duty so to do. Mill Co. v. Greer, 49 Iowa. 497; Douglass v. Stephens, 18 Mo. 3G2; Railway Co. v. Finnigan, 21 111. G46; Loker v. Damon, 17 Pick. 284; Thomp- son v. Shattuck, 2 Mete. (Mass.) 615. In this case much testimony was offered touch- ing the ability of plaintiff, by the aid of mechanical appliances, to raise the water from the well when it was lowered by de- fendant's acts. We think there is a fair conflict in the evidence as to whether, by a reasonable effort and expenditure of mon- ey, plaintiff could have avoided the dam- age resulting from defendant's unwarranted diversion of the water. The question was properl}' submitted to the jury, and they have said, in effect, that she could not have done so. The finding is not without support in the evidence, and we cannot disturb it. 5. Error is assigned on the action of the court in refusing to permit defendant to show that it offered to furnish her free of charge all the water she could use in run- ning her business. This offer was made to plaintiff's husband. The husband operated the business in his name, and appears to have had entire control of it, as well as of plaintiff's interest, relating to her well. While it may be conceded that it was plain- tiff's duty to use reasonable efforts as to time and expenditure of money to lessen or limit her injury, we do not think she was called upon to take water from defendant's pipes. Her right was to take water from her own well, and, even if it was incum- bent upon her to take water from the city free to limit her injury, her damages could not be affected by her failing to do so, in the absence of any showing as to whether or not the cost to her of taking the water from the city would be reasonable. There is noth- ing in the I'ecord which shows, or tends to show, what expense she would have been put to, if she took the water from the city, in connecting with the mains and in pro- viding the necessary appliances for such a change; so that, in any event, defendant has not made such a showing as would require plaintiff's acceptance of the city's offer. The evidence was properly excluded. 6. Complaint is made that the court, in its instructions, ignored the rule as to contribu- tory negligence, and improperly refused an instruction asked, to the effect that if, during the time for which plaintiff complained, she allowed her own well to flow and waste wa- ter, and such waste of water contributed to the injury complained of, she could not re- cover. In support of the claim that this instruction should have been given, we are referred to the case of Ferguson v. Manu- facturing Co., 77 Iowa, 576, 42 N. W. 448, and other cases. That was a case where the contributory negligence was pleaded by de- fendant. There is no such issue in the case at bar, and, for that reason alone, the in- struction was properly refused. Further- more, on principle, the cases are clearly dis- 40 WHAT IS REAL PROPERTY. tinguishable. No iojury would have result- ed to plaintiff if defendant's wells had been so arranged as to have discharged their water at the same level as plaintiff's, and if the city- had not pumped from its wells. The waste of water from the wells discharging at the same level would not have affected the flow from any of them, or, if it did, the effect would have been the same as to all of them. Again, the evidence does not shov/ that plaintiff's injury would have been in any way lessened by stopping the flow of her well when it did flow and was not in use. In any view, there was no error in giving and refusing the instructions complained of. 7. The court submitted to the jury the question as to whether the flow of water from the Blank and Burrington wells af- fected the flow from plaintiff's well. It is said that the evidence, without conflict, shows that the flow of these wells did affect plaintiff's well; that it was not a question of dispute. That is true, but the evidence did also tend to show that the flow of these other wells did not materially affect the plaintiff's use of her well. We think the in- struction complained of is quite as favorable to the defendant as it had a right to ask. 8. In the sixth paragraph of the charge, the jury were told that the defendant, under certain circumstances, which were stated, would be liable for the cost of appliances purchased by plaintiff in her attempt to pro- cure water from her well after the flow there- from had been impaired by the defendant's acts. Defendant contends it would only be liable for the value of the use of such ap- pliances while plaintiff retained possession of the property. It does not appear that these appliances added to the value of the property. In fact, the evidence shows that with their use plaintiff could not obtain water. Nor do we think it is shown what the value of said appliances was, if anything, after plaintiff's use of them. The latter part of the insti-uction reads thus: "If , however, the water could not have been obtained from said well by the use of such appliances, at reasonable and moderate cost, then the plain- tiff would be entitled to recover as damages the value of the diminished use of said prop- erty during the time that she was entitled to the use, which would be from the date that the water was diverted from her well as al- leged, to the date of the sale and surrender of the property, which was on March 15, 1892, also the reasonable cost, expenses of such appliances as were used and placed therein to diminish the damages to the use; and the defendant would only be liable for so much thereof as its acts had caused the damage to the plaintiff." It is said that the instruction should have read "diminution of the use," instead of "diminished use." Tech- nically, it may be true that the words "diminished use" should be held to refer to the value of the use remaining after the diminution had taken place. In view of the wording of the entire instruction and of the other instructions given, we think the error, if any, was without prejudice. The jury could not from all of the instructions have failed to understand what was the correct measure of damages. 9. Complaint is made of the giving and re- fusal to give other instructions. W^e dis- cover no error in the matters complained of. Finally, it is urged that the verdict is ex- cessive, and conti"ai"y to the law and the evi- dence. From what has already been said, it will be seen that we think the jury was justified in finding against the defendant. The verdict was not excessive, and was war- ranted by. the testimony. The case is so un- usual in its facts, and so important in prin- ciple, that we have given it a most thor- ough investigation and consideration. Af- firmed. BOllBER TKEES. 41 LYMAN V. HALE. (11 Ck)nn. 177.) Supreme Court of Errors of Connecticut. 1836. Hungerford & Cone, for plaintiff in error. Jolinson & Ctiapman, for defendant in error. BISSELL, J. This writ of error is reserved for our advice; and tlie principal question rais- ed and discussed, is, vi'hether, upon the facta disclosed on the record, the plaiutiff and de- fendant are joint owners, or tenants in com- mon, of the tree in controversy. It is admitted that the tree stands upon the plaintiff's land, and about four feet from the line dividing his land from that of the defend- ant. It is further admitted that a part of the branches overhang, and that a portion of the roots extend into, the defendant's land. If, then, he be a joint owner of the tree with the plaintiff, he is so in consequence of one or the other of these facts, or of both of them united. It has not been insisted on, in the argument, that the mere fact, that some of the branches overhang the defendant's land, creates such a joint ownership. Indeed, such a claim could not have been made, with any well-grounded hope of success. It is opposed to all the au- thorities, and esi>ecially to that on which the defendant chiefly relies. "Thus," it is said, "if a house overhang the land of a man, he may enter and throw down the part hanging •over, but no more; for he can abate only that part which constitutes the nuisance." 2 Rolle, 144, 1, 30; Eex v. Pappineau, 2 Strange, 688; Cooper V. Marshall, 1 Burrows, 267; Welsh v. Nash, 8 East, 394; Dyson v. Collick, 5 Barn. & Aid. 600 (7 Serg. & L. 205); Com. Dig. tit. "Action on the Case for a Nuisance," D, 4. And in Waterman v. Soper, 1 Ld. Raym. 737, the case principally relied on by the defend- ant's counsel, it is laid down: "That if A. plants a tree upon the extremest limits of his land, and the tree growing extend its root into the land of B. next adjoining, A. and B. are tenants in common of the tree. But if all the root grows in the land of A., though the boughs overshadow the land of B., yet the branches follow the root, and the property of the whole is in A." The claim of joint ownership, then, rests on the fact that the tree extends its roots into the defendant's land, and derives a part of its nourishment from his soil. On this ground, the charge proceeded, in the court below; and on this, the case has been argued in this court. We are to inquire, then, whether this ground be tenable. The only cases relied upon, in sup- port of the principle, are, the cases already cit- ed from Ld. Raymond, and an anonymous case from Rolle's Reports. 2 Rolle, 255. The prin- ciple is, indeed, laid down in several of our elementary treatises. 1 Swift, Dig. 104; 3 Star- kie, Ev. 1457, note; Bull. N. P. 84. But the only authority cited is the case from Ld. Ray- mond. And it may well deserve consideration, whether that case is strictly applicable to the ea.se at bar; and whether it carries the prin- ciple so far as is necessary to sustain the pres- ent defence. That case supposes the tree to be planted on the "extremest hmit" — that is, ou the utmost point or verge — of A.'s land. Is it not then fairly inferable, from the statement of the case, that the tree, when grown, stood in the dividing line? And in the case cited from Rolle, the tree stood in the hedge, divid- ing the land of the plaintiff from that of the defendant. Is it the doctrine of these cases, that whenever a tree, growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the land of another, they therefore become ten- ants in common of the tree? We think not; and if it were, we cannot assent to it. Because, in the firet place, there would be insurmounta- ble difficulties in reducing the principles to prac- tice; and, in the next place, we think the weight of authorities is clearly the other way. How, it may be asked, is the principle to be reduced to practice? And here, it should be remembered, that nothing depends on the ques- tion whether the branches do or do not over- hang the lands of the adjoining proprietor. All is made to depend solely on the inquiry, wheth- er any portion of the roots extend into his land. It is this fact alone, which creates the tenancy in common. And how is the fact to be ascer- tained ? Again, if such tenancy in common exist, it is diffused over the whole tree. Each owns a cer- tain proiX)rtion of the whole. In what proiwr- tion do the respective parties hold? And how are these proportions to be determined? How is it to be ascertained what part of its nourish- ment the tree derives from the soil of the ad- joining proprietor? If one joint owner appro- priate all the products, on what principle is the account to be settled between the parties? Again, suppose the line between adjoining proprietors to run through a forest, or grove. Is a new rule of property to be introduced, in regard to those trees growing so near the line as to extend some portions of their roots across it? How is a man to know whether he is the exclusive owner of trees, growing, indeed, on his own land, but near the line; and whether he can safely cut them, without subjecting himself to an action? And again, on the principle claimed, a man may be the exclusive owner of a tree, one year, and the next, a tenant in common with another; and the proportion in which he owns may be varying from year to year, as the tree pro- gresses in its growth. It is not seen how these consequences are to be obviated, if the principle contended for be once admitted. We think they are such as to furnish the most conclusive objections against the adoption of the principle. We are not pre- pared to adopt it, unless compelled to do so by the controlling force of authority. The cases re- lied upon for its support have been examined. We do not think them decisive. We will very briefly review those, which, in our opinion, es- tablish a contrary doctrine. In the case of Masters v. Pollie, 2 Rolle, 141, 42 WHAT IS REAL PROPERTY. it was adjudged, that where a tree grows in A.'s close, though the roots grow in B.'s, yet the body of the tree being in A.' a soil, the tree belongs to him. The authority of this case is recognized and approved by Littledale, J., in the case of Holder v. Coates, 1 Moody & M. 112 (22 Serg. & L. 264). He says: "I remem- ber, when I read those cases, I was of opinion that the doctrine in the case of Masters v. Pol- lie was preferable to that in Waterman v. So- per; and I still think so." The same doctrine is also laid down in Millen V. Fandrye, Poph. 161, 163; Norris v. Baker, 3 Bulst. 178; see, also, 20 Vin. Abr. 417; 1 Chit. Gen. Prac. 652. We think, therefore, both on the ground of principle and authority, that the plaintiff and defendant are not joint owners of the tree; and that the charge to the jury, in the court below, was, on this point, erroneous. It is, however, contended, that although the charge on this point was wrong, there ought not to be a reversal, as upon another ground the defendant was clearly entitled to judgment in his favor. It is urged, that land comprehends everything in a direct hne above it; and therefore, where a tree is planted so near the line of another's close that the branches overhang the land, the adjoining proprietor may remove them. And in support of this position, a number of authori- ties are cited. The general doctrine is readily admitted; but it has no applicability to the case under consideration. The bill of exceptions finds, that the defendant gathered the pears growing on the branches which overhung his- land, and converted them to his own use, claim- ing a title thereto. And the charge to the jury proceeds on the ground that he has a right so to do. Now, if these branches were a nuisance to the defendant's land, he had clearly a right to treat them as such, and as such to remove them. But he as clearly had no right to con- vert either the branches or the fruit to his own use. Beardslee v. French, 7 Conn. 125; Welsh. V. Nash, 8 East, 394; Dyson v. Collick, 5 Barn. & Aid. 600 (7 Serg. & L. 205); 2 Phil. Ev. 138. On the whole, we are of opinion that there is manifest error in the judgment of the court below, and that it be reversed. The other judges ultimately concurred in this opinion; WILLIAMS, C. J., having at first dissented, on the ground of a decision of the superior court in Hartford county (Fortune v. Newson), and the general understanding and practice in Connecticut among adjoining pro-^ prietors. Judgment reversed. BORDER TREES. 43 ROBINSON y. CLAPP. (32 Atl. 939, 65 Conn. 305.) Supreme Court of Errors of Connecticut. Jan. 8, 1895. Appeal from court of common pleas, New Haven county; Cable, Judge. Suit by John A. Robinson against John W. Clapp to enjoin defendant from erecting a certain house. There was judgment for plaintiff, and defendant appeals. Reversed. Hemy G. Newton and J. Birney Tuttle, for appellant. Earlliss P. Arvine, for appellee. FENN, J. Upon the complaint of the plaintiff, claiming an injunction to restrain the defendant from doing certain acts on the defendant's own land, adjacent to land of the plaintiff, the court of common pleas for New Haven county found the following facts: On September 21, 1883, one William Waite was, and for a long time had been, the own- er in fee of certain premises on the northerly side of Bradley street in the city of New Ha- ven, 61 feet front on said street, and 98 feet deep. A dwelling house stood on the wester- ly part of said lot. On said day said Wil- liam Waite, through a third person, conveyed to his wife, Elizabeth, the westerly part of said lot, 40 feet front, on which said dwelling liouse stood. On August 23, 188S, the said 40-foot lot was, by warranty deed, conveyed to the plaintiff by an agent of Mr. and Mrs. Waite, to whom it had been previously con- veyed for that purpose. On October 6, 1888, William Waite quitclaimed his right, title, and interest in the remaining 21 feet of the original lot to the defendant. On the bound- ary line between the premises of the plain- tiff and the defendant there stands a maple tree of about 40 years' growth, about 16 inches in diameter, and with a branch exten- sion of from 40 to 50 feet. This tree is a valuable one to the plaintiff as a shade tree and ornament, and shades a part of the plain- tiff's premises. The boundary line runs sub- stantially through the middle of the trunk of said tree. At the time that said William Waite erected said dwelling house,— which was more than 20 years previous to the plaintiff's purchase,— he dug and connected with said dwelling house, by "pipes, a well, and used said well of water as appurtenant to said house during the period of his own- ership, up to and within a short time previ- ous to said purchase. For some five years previous to the plaintiff's purchase, and up to the time when said Waite ceased to use said well, such use was by means of a curb and bucliet. The plaintiff has never used said Avell, which has been covered up ever since he has owned the premises. The de- fendant does not intend to destroy the well. At the time of the plaintiff's purchase, the well was connected with the house by means of pipes, and there was a concrete walk lead- ing from the house to the well, across said boundary line, and continuing into that part of the premises owned by the defemlant, along the extent of the flagstone that crowns the well. This stone, which is about SVa feet in length, extends some 3% feet upon the defendant's land. The well is 21/2 feet in di- ameter, and adjoins the line, but is practi- cally all of it upon the land of the defend- ant. On the trial the plaintiff and said Wil- liam Waite both testilied that a few days previous to the plaintiff's purchase, and while negotiations wei-e pending, said Waite told the plaintiff that said well went with the house, and would be sold to him; and this statement was a substantial inducement CO the plaintiff in making said purchase. To the admission of this evidence the defendant objected, but the c-ourt overruled the objec- tion, and admitted the evidence, the defend- ant duly excepting, and the court found the facts to be as testified. The plaintiff's prin- cipal sitting room and the room over it, the dressing room, are on the east side of the house, and derive their light solely from a bay window, having its windows on the east- erly, northeasterly, and southeasterly sides thereof. Said rooms are so inclosed on all sides by other parts of tlie structure that no other means of light than from the east side is possible, without a substantial reconstruc- tion of that part of the building. The east face of said bay window is between five and six feet beyond the line of the side wall of the house from which such window projects, and is five feet from said boundary line. The stairway and hall of the dwelling house is lighted by a stained glass window in the easterly side of the house, and has also a glass in the south door. The defendant threatens and intends to build, and has made a contract for the building of, a dwelling house to extend down along the boundary line for a distance of 58 feet from a point about 6 feet from said Bradley street, the wall of which is to be about 20 feet high, and threatens to remove so much of the tree as is on his side of said boundary line. The construction of a dwelling house on the line, as the defendant intends to construct it, would cover the well, and that portion of the premises on his side of the line on which said tree stands; and the removal of that portion of the tree which the defendant threatens to remove would destroy the life of the whole tree. Such construction would also deprive the nlaintiff of the supply nf light which has come across said 21 feet now owned by the defendant, and would make it necessary for the plaintiff to light his sitting room and dressing room with gas, or some other light, in the daytime, In order to obtain sufl3cient light for the reasonable use of the rooms. At the time of piu-chase by the plaintiff, and at the time of the pur- chase by the defendant, there was no fence or other visible sign of demarcation marking said boundary line. And said original tract iA WHAT IS REAL PROPERTY. of land owned by William Waite was, at the time of the erection of said dwelling house thereon, and ever afterwards until the exe- cution of the deeds above mentioned, an un- divided tract of land. The defendant, previ- ous to his purchase, had lived within 100 feet of the premises, and was fully acquainted with the same. Upon these facts the court, overruling the claims of the defendant, ren- dered judgment for the plaintiff, enjoining and restraining the defendant "from such in- terference with the tree mentioned in the complaint as will desti'oy or injure the same, and such interference with the well men- tioned in the complaint as will deprive the plaintiff of the use of the same; also from erecting any building upon the premises de- scribed as the property of the defendant, so near as to exclude the light from the plain- tiff's dwelling house." The defendant's ap- peal assigns 11 reasons, some of which are not important. Taken- as a whole, however, they present, in svibstance, four alleged grounds of error which we deem it neces- sary to consider. First, in restraining the de- fendant from interference with the tree; sec- ond, with the well, including the admission of evidence; third, from excluding the light; fourth, that the judgment rendered is uncer- tain. We will examine each of these, and in the order above indicat*>d. First, in reference to the tree. Upon the subject of the rights of the parties in a tree situated as this is it is said in 1 Washb. Real Prop. § 7a: "The law as to growing trees may be regarded so far peculiar as to call for a more extended statement of its rules as laid down by different courts. * * * in the first place, trees which stand wholly within the boundary line of one's land belong to him, although tlieir roots and branches may extend into the adjacent owner's land. * * * But the adjacent owner may lop off the branches or roots of such trees up to the line of his land. If the tree stand so nearly upon the dividing line between the lands that portions of its body extend into each, the same is the prop- erly in common of the landowners. And neither of them is at liberty to cut the tree w-ithout the consent of the other, nor to cut away the part which extends into his land. If he thereby injures the common property in the tree." This is the doctrine of our own court in Lyman v. Hale, 11 Conn. 177, cited by Washburn. See, also, 26 Am. & Eng. Enc. Law, p. 558. We may therefore limit our investigation to the inquiry as to the logical application of the principles of that case to the present one. In that case the tree stood upon the plaintiff's land, but its branches ex- tended some distance across the line, and some of its roots ran into the defendant's ground. The action was trespass quare clausum fregit for entering upon the plaintiff's land and pick- ing up pears, the fruit of the tree. The de- fendant claimed to be either tenant in com- mon or joint owner with the plaintiff, or ex- clusive owner of the pears gathered, which fell on his own land from overhanging branches. The claim of joint ownership urged rested on the fact that the roots extended into the defendant's ground, and that the tree de- rived a part of its nourishment from his soil. In reviewing and disapproving the authori- ties cited in support of such claim, this court said: "Is it the doctrine of these cases that whenever a tree growing upon the land of one man, whatever may be its distance from the line, extends any portion of its roots into the lands of another, they therefore become tenants in common of the tree? We think not; and, if it were, we cannot assent to it. Because, in the first place, there would be insurmountable difficulties in reducing the principle to practice; and, in the next place, we think the weight of authorities is clearly the other way. How, it may be asked, is the principle to be reduced to practice? And here it should be remembered that nothing depends upon the question whether the branches do or do not overhang the lands of the adjoining proprietor. All is made to depend solely upon the inquiry whether any poiUon of the roots extend into his land. It is this fact alone w'hicb creates the tenancy in common. And how is the fact to be ascertained? Again, if such tenancy in common exist, it is diffused over the whole tree. Each owns a certain proportion of the whole. In what proportions do the respective parties hold? And how are these proportions to be determined? How is it to be ascertained what part of its nourish- ment the tree derives from the soil of the adjoining proprietor? If one joint owner ap- propriate all the products, on what principle is the account to be settled between the par- ties? Again, suppose the line between ad- joining proprietor's to run through a forest or grove. Is a new rule of property to be intro- duced in regard to those trees growing so near the line as to extend some portions of their roots across it? How is a man to know whether he is the exclusive owner of trees^ growing, indeed, on his own land, but near the line; and whether he can safely cut them, without subjecting himself to an action? And again, on the principle claimed, a man may be the exclusive owner of a tree one year, and the next a tenant in common with an- other; and the proportion in which he owns may be vai-ying from year to year, as the tree progresses in its growth. It is not seen how these consequences are to be obviated, if the principle contended for be once admitted. We think they are such as to furnish the most conclusive objections against the adoption of the principle." We have quoted so much at length, because it must be obvious that by far the greater part of this most cogent rea- soning applies with equal force against the docti'ine of a tenancy in common of a tree standing upon the dividing line between two properties, and extending its body, no matter in what pi'oportion, into each. It is true, the opinion appears to concede that in such a case the tenancy would exist, and such is the BORDER TREES. 45 larailiar statement of the treatises and opin- icnas. The expression is probably well enough and sufficicntlj' accurate for practical purposes, but it is not entirely correct, as appears to ua to be clearly shown in an article in the Albany Law Journal (volume 10, p. 22G), which points out that where a tree stands partly on the lands of each of two adjoining proprietors, the possession of each must be always confined to that portion of the tree which is on his side of the boundary line, in view of the greater dignitj" and permanence of real-estate tenure, as compared with the temporary and chang- ing nature of gi'owing timber. In addition to what we have said, it must be apparent that the very nature of things dif- ferentiates such a so-called common interest from an ordinary tenancy in common, either of real or of personal property. In the case of a tree like the one in question, yielding no fruit, of trifling value for wood, if cut, of no value while standing, except for ornament or shade, what relief by any remedy, legal or equitable, provided for ordinary tenants in common, can a part owner of such tree, to whom its continued existence is of no ad- vantage but an injury, obtain? Can he call ifpon the other part owner to account for the benefit which he has derived from such orna- ment or shade? Could he, in this state, pro- cure a partition of the growing tree as real estate, under Gen. St. § 1304? And if he did, would not the lines of his own and the ad- jacent land divide the tree as they did before, leaving the rights of the parties identical in eifect With what they were before? Could he obtain a sale of the tree under section 1307, either as real estate or personal property, that would caiTy the right to have.it destroyed or removed? If it be conceded, as it must be, that he could do none of these, it will be evi- dent, we think, that the tenancy in common In a tree is of a peculiar nature, if there be such a tenancy at all. It would really seem to come to this: that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal, in the first instance, to, or per- haps i-ather identical with, the part whicb is upon his land; and, in the next place, embra- cing the right to demand that the owner of the other portion shall so use his part as not unrea- sonably to injure or destroy the whole. There may, it is true, be a difficulty in applying such a principle as this, and such difficulty appears to exist in the present case. It might per- haps fairly be urged that to prevent the de- fendant from removing that portion of the trunk of the tree upon his own land— thereby depriving him of the opportunity to build upon it as desired— would be likely to produce a greater irreparable injury to the defendant than such removal and the consequent de- stiiiction of the life of the tree would cause the plaintiff, and that, therefore, the equitable remedy of injunction (which is not adapted finally to adjust the rights of the parties) should have been refused, and the contestants left to settle such rights in methods pertain- ing to the legal, and not the chancery, juris- diction. We are inclined to think such ele- ments of discretion enter into this matter that we ought not to disturb the conclusion of the trial court upon it. But we think the law is already well settled in this state, as well as elsewhere, and, as before stated, that where the branches of a tree extend over an adjacent owner's land, he may lop them off up to the line, even though that were practically to the trunk of the tree. In this case a portion of the trunk is on the defendant's land, and the branch extension of 40 to 50 feet, as found, presumably reaches across it. That he should have less right to lop these "branches because he owns a portion of the tree than if he owned none of it, appeare to us to be unreasonable. The injunction should not extend further than to restrain the defendant from cutting any portion of the ti'unk and any further cutting of the branches or of the roots than he might lawfully have done had the ti-unk stood wholly upon the plaintiff's land, but reaching to the defendant's line. If in fact the ti-unk divides itself, as the tree extends upwards, into two or more parts, of similar size, with more of a peipendicular than horizontal extension, each of those parts should be regarded as a portion of the trunk. In respect to the well, there was, we think, error in the action of the court, both in ref- erence to the admission of evidence and in granting the injunction, whether the latter action be or be not regarded as influenced by such evidence. Concerning the testi- mony, the plaintiff seeks to justify its re- ception as being a declaration of the actual vendor at the time of the sale, and cites Norton v. Pettibone, 7 Conn. 323; Doming V. Can-ington, 12 Conn. 5; Smith v. Martin, 17 Conn. 400; Ramsbottom v. Phelps, 18 Conn. 285. None of these cases, however, support his contention. For, waiving the point that the title to the premises now owned by the plaintiff was not at the time of such conversation in the declarant, Vi^i\- liam Waite, it is evident that the state- ment to the plaintiff "that the well went with the house, and would be sold to him," was not in its nature a declaration adveree to the declarant's title. It was not an as- sertion as to his title at all. There was no question then, nor is there now, that the declarant then had title to the land now be- longing to the defendant on which the well is situated. It was therefoie simply a state- ment of what interest or easement in laud not to be conveyed "belonged to" and "would be sold" with the land to be conveyed. Whether, by the legal effect of the deed to the plaintiff, the well, or any right in it, was conveyed to him as an appurtenance or otherwise, is an inquiiy to which the evi- dence under consideration is not relevant. If not so conveyed, whether the plaintiff has, or ever had before waiting so long, a cause of action for the reformation of the 46 WHAT IS REAL PROPERTY. instrument, so as to include the well as a part of the grant, is another and distinct question. In this case, however, to which William Waite is not a party, in which no claim for reformation is made, but only the title of the plaintiff as derived from the deed as it stands is counted upon, such inquiry cannot be entered into. Nor would any con- ceivable answer to it affect the decision of the point as to the admission, in this case, of the evidence now under consideration. There is no claim that the defendant had any notice of this conversation, and its use to impair the title of a bona fide purchaser, for full consideration, without notice, actual or constructive, of an adjoining piece of land, is clearly improper. The fact that the defend- ant derived his title from a quitclaim deed is entirely immaterial. "In this state a quit- claim deed is a primary conveyance, vesting in the releasee all the interest, even in fee, which the releasor has so conveyed. As a conveyance, it is of as much force as a war- ranty deed, differing from it chiefly in the superadded covenants, which may operate by way of estoppel upon a future-acquired interest, or may secure the covenantee against a bad or defective title." Sherwood V. Barlow, 19 Conn. 476. It might even be said that there is more reason why a re- leasee in a quitclaim deed should be protect- ed from the operation of secret, unrecorded incumbrances on the property, where he pur- chased in good faith, and for full considera- tion, than such a purchaser whose title comes to him accompanied with covenants for his protection. But, further, in refer- ence to the injunction, there was error. The plaintiff claims the record shows that the well, at the time of his purchase, was appurtenant to the dwelling house, and nec- essary thereto. We do not so understand the finding. At the time the dwelling was erected the well was dug, and connected with it by pipes. It was used as appur- tenant to the house, either by pipes or by curb and bucket, up to and within a short time previous to the plaintiff's purchase. It was not so used at the time of the purchase. For the last five years of its actual use the curb and bucket had been employed. At the time of the purchase that also had been abandoned, and the well was covered by a flagstone. The pipes at that time connected the well with the house. Whether they do so still is not found. The plainciff has never used the welL The defendant aoes not in- tend to destroy it, but the construction of his dwelling house would cover it. Why should he not so cover it, if he desired? It had already been covered when he bought, and it so x-emains. It is not found that the well has ever been, or ever is likely to be, necessary, or even useful, to the plaintiff. If it ever has been, why has he never used it? If he objects to its being covered, why did he receive his deed while it was in that condition? Why has he suffered it to re- main so ever since? But he wishes, or he may, perhai)s, wish hereafter, to revive the use of the pipe. It is entirely upon his own land, and reaches a well which the defend- ant has no intention to destroy. How, so far as the record discloses, will the pro- posed act of the defendant affect him in such use? We come now to the question most ex- tensively considered on both sides in the ar- gument,— that in relation to light. The great practical importance of the subject present- ed will be our justification for a somewhat extended examination. By the common law, in England, the right to light and air over the land of another could be claimed in cer- tain cases by prescription, and in certain others by implication, or what was called "implied grant." If the common law, as to the prescription, ever existed in Connecticut, it dofes so no longer. Gen. St. § 2970. But the plaintiff claims that the law as to im- plied grants of light and air does exist, and should be recognized in this state. That doctrine the plaintiff states as follows: "When a person, having erected a building upon a part of his land, and having placed therein windows opening upon the other part of his land, sells the building, with the land on which it stands, the right to the con- tinual use and enjoyment of light and air through these windows passes to the gi'antee by implication." This asserted rule is a par- ticular instance of the application of the doctrine of the creation of easements of various kinds,— the principal of which are perhaps ways and rights of passage by im- plication,— which doctrine is said to rest up- on the application of the maxims: "A gran- tor cannot be allowed to derogate from his own grant," and "A grantor is presumed to convey, so far as it is in his possession, whatever is necessary for the reasonable enjoyment of the thing conveyed." Again, it is said to be based upon the supposed in- tention of the parties, as deduced from the surrounding circumstances; the essential ele- ment of which is the situation, relation, and condition of the granted and retained por- tions of the land. If we assume this doc- trine, generally speaking, to be correct, the inquiry arises as to its proper limitations; and to what would be such in any given case, provided the question of its application arose between the grantee and his grantor, who still retained the other portion of the land, there must be added an additional con- sideration, provided, as in the present in- stance, such original grantor does not so re- tain, but has afterwards parted with, such remaining portion to another person, who is a bona fide purchaser for value. The policy upon which our registration laws as to con- veyances of real estate is based, would seem to make it essential that, in order to claim such easement against such purchaser, it must be of a character so evidently neces- sary to the reasonable enjoyment of the BORDER TREES. 47 granted premises, so continuous in its na- ture, so plain, visible, and open, so mani- fest from the situation and relation of the two tracts, as to fairly and clearly indicate to a prospective purchaser of the reserved portion the intention of the parties to the previous sale that it should remain, and to make such purchaser chargeable with knowl- edge that the law, based on justice, that equity, founded on good conscience, would forbid him, in case of his prnx-hase, so to occupy the lot as to interfere with such ease- ment. The general doctrine of easements by Im- plied grants, and the ground upon which it is based, is well stated by this court in Col- lins V. Prentice, 15 Conn. 39, 43, in refer- ence to private ways. In speaking of such ways, the court, by Waite, J., said: "It is ^,ell settled as a part of the common law of England that if a man having a close, to which he has no access except over his other lands, sell that close, the grantee shall have a way to it, as incident to the grant. * * * And although doubts have formerly been ex- pressed upon the subject, it seems now to be as well settled that, if the grantor had reserv- ed that close to himself, and sold his other lands, a right of way would have been re- served. * * * The way, in the one case, in contemplation of law, is granted by the deed, and, in the other case, reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties; for the law will not presume that it was the intention of the parties that one should convey land to the other in such manner that the grantee could derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himself of the enjoyment of the re- mainder. The law, under such circumstan- ces, will give effect to the grant according to the presumed intent of the parties. A way of this kind is limited by the necessity which creates it." These principles in refer- ence to private ways — especially the limita- tion of such easements to cases of actuxil ex- isting necessity— are further stated in Pierce V. Seileck, 18 Conn. 321; Seeley v. Bishop, 19 Conn. 128; Woodworth v. Raymond, 51 Conn. 70. In Massachusetts, in reference to such ways, it was said in Buss v. Dyer, 125 Mass. 291: "It is a well-established and fa- miliar rule that deeds are to be construed as meaning what the language employed in them imports, and that extrinsic evidence may not be introduced to contradict or af- fect them. And it would seem that nothing could be clearer in its meaning than a deed of a lot of land, described by metes and bounds, with covenants of warranty against incumbrances. The great exception to the application of this rule to the constiiiction of deeds is in the case of ways of necessity, where, by a fiction of law. there is an im- plied reservation or grant to meet a special emergency on grounds of public policy, as it has been said, in order that no land should be left inaccessible for purposes of cultiva- tion. This fiction has been extended to cases of easements of a different character, where the fact has been established that the ease- ment was necessaiy to the enjoyment of the estate in favor of which it was claimed. In this commonwealth, grants by implication are limited to cases of strict necessity." Coming now directly to the subject of the application of this doctrine or "fiction" to light and air, it was said by Gould, J., in Ingraham v. Hutchinson, 2 Conn. 598, in speaking of wliat are called "ancient lights": "Besides, to what extent does this privilege or protection go, where it actually exists? Does the adjoining proprietor lose all right to erect a building upon his own land, when- ever it would in the least degree diminish the light of a privileged window? Is he pre- cluded from building at a distance of three rods, or one rod, or even at a less distance, from his neighbor's windows? I am not aware that the rule was ever claimed to ex- tend so far. It goes no further, as I under- stand it, than to protect windows, which have been long used, from being obstructed, or, as it is often expressed in the books, 'stopped up.' " But the plaintiff claims that a much broader extension of the rule, in case of an implied grant, was distinctly recog- nized in this state in Bushnell v. Proprietors, 31 Conn. 150, a case upon which the plaintiff much relied. In that case it appeared that the plaintiff had formerly conveyed to the defendant, an ore-bed company, the right, in washing their ore upon a small stream that ran through his land, to discharge dirt upon his "meadow lot," lying below upon the stream. A great quantity of dirt accumulat- ed on the meadow lot, filling the bed of the stream, and raising the lot above the adjoin- ing land, so that the dirt washed upon the lot, spread, and was cari'ied upon the plaintiff's pasture lot adjoining. The plaintiff had own- ed this lot at the time the deed was given. In holding that the defendant was not liable for any damage to the pasture lot resulting naturally from the discharge of dirt upon the meadow lot, this court (Dutton, J.) said: "A grantor is presimaed to intend to convey, so far as it is in his possession, whatever is nec- essary to the reasonable enjoyment of the thing conveyed. It is well-settled law that if the owner of a lot conveys it to another per- son while there is upon it a dwelling house with windoA\'S opening upon another lot of the grantor, neither he nor his heirs nor as- signs can erect a building upon the second lot so near as to exclude the light from the dwell- ing house." Now, it is evident, as the opinion itself states (page 157), that the question for discussion in Bushnell v. Proprietors was, what rights were in fact conveyed by the deed? This was a question solely of interpre- tation, in which the principles of the doctrine of implied grants, which do not, and have 48 WHAT IS REAL PROPERTY. never been claimed to, rest upon interpreta- tion of lansuage used, were in no sense in- volved. The entire discussion of the doctrine, as well as the illustration cited, was, there- fore, wholly obiter. Nevertheless, both the principle and the illustration, although vouch- ing as authoi-ity two cases, both of which have been distinctly overruled in almost ev- eiy American jurisdiction where the question has since arisen, may, we think, fairly be adopted as a correct statement of the law, provided proper care is exercised in constni- ing the terms used, bearing in mind that the presumption against the gi'antor that it was not his intention "to convey land in such man- ner that the grantee could derive no benefit from the conveyance" must be fairly weigh- ed and applied with due regard to the counter presumption that it could not have been his intention "to so convey a portion as to de- prive himself of the enjoyment of the remain- der." From this consideration— manifestly just where the effort is to extend by pm-e im- plication the language used, and to thus sup- ply what might so easily have been procured to be expressed, if it were intended— it will follow that the word "necessity" and the term "reasonable enjoyment" can have no fixed arbitrary and unyielding meaning, but must find their explanation in view of the situation of the parties, of the nature, char- acter, and adaptability of the property, and in the light of surrounding circumstances. They should also receive a strict construction, for the reason that such implied easement is an impairment of "the exclusive dominion of every man over his own soil and freehold, now held sacred by our constitution and laws." Pierce v. Selleck, 18 Conn. 830. It may be true, as stated in Bushnell v. Pro- prietors, and the true ground of that decision, that "the constniction of a deed, if it is doubt- ful, must be taken most strongly against the grantor." But in the ease before us there is no question concerning the construction of language used, no claim that this is doubtful, but the imputation of language never used; and surely caution and moderation should be exercised in that. It fiu'ther must follow, we think, as a corol- lai-y from what has already been said, that the doctrine of easements by implied grant— a doubtful exercise of power by the courts in all cases— should, when applied to casements of light, be most cautiously used; and, briefly stated, that in the above quotation the words "exclude the light" should not be regarded as equivalent to "exclude any light"; in other words, that "exclude" is not to be held synon- ymous with "impair." To borrow the emphat- ic language of Dillon, C. J., in :\Iorrison v. Marquardt, 24 Iowa, 64: "Surely, such an easement, uncertain in its extent and dura- tion, without any written or record evidence of its existence, fettering estates and laying an embargo upon the hand of improvement which carries the trowel and the plane, and, as applied to a subsequent purchaser, against the spirit of our recording acts, and not de- manded by any consideration of public policy, —surely, such an easement should not be held to exist by mere implication, when such impli- cation originates in no reasonable necessity." A careful examination of the cases in the United States upon the subject, both those cit- ed in the very able and exhaustive brief in be- half of the plaintiff and others, justifies the statement that in what we have said we have been in harmony with the views held in the principal American jurisdictions. Wherever the doctrine of easements by implied grants of light and air has been recognized at all, it has been carefully restricted; and no well-consid- ered case in this country, at least in recent years, can be found that has gone to the ex- tent, in the application of such doctrine to the facts, to which it would be necessary to go in the present case in order to justify the judg- ment of the court below. In Keats v. Hugo, 115 Mass. 204, which is a well-considered, and may be regarded as a leading, case, three actions were tried togeth- er. In the principal one the defendants con- veyed to the plaintiff, by warranty deed in the usual form, a certain lot of land with a dwelling house thereon, situated on the line between the parties, created by said convey- ence; the lot so conveyed being a part of a larger lot then, and the remainder of which was at the date of the action, owned by the defendants. The dwelling house had win- dows and a door in that part of the house ad- joining the line. After said conveyance, the defendants placed a structure and woodshed on their own land, against said house, within about eight inches of the same. The question was "whether a person who sells a house overlooking land retained by him thereby de- prives himself of the right to build on that land so as to obstruct the passage of light and air to the windows." The court (Gray, C. J.), in the opinion, said: "The question being of great practical importance to owners of real estate, and having heretofore been the subject of some variety and conflict of judicial opin- ion, we have thought this a suitable occasion to review the cases in this commonwealth, and to refer to the principal ones in other states." The court then proceeds to do this in an exhaustive manner, and concludes by saying: "By nature, light and air do not flow in definite channels, but are universally dif- fused. The supposed necessity of their pas- sage in a particular line or direction to any lot of land is created not by the relative situation of that lot to the surrounding lands, but by the manner in which that lot has been built upon. The actual enjoyment of the air and light by the owner of the house is upon his own land only. He makes no tangible or vis- ible use of the adjoining lands, nor, indeed, any use of them which can be made the sub- ject of an action by their owner, or which in any way interferes with the latter's enjoy- ment of the light and air upon his own lands, or with any use of those lands in their exist- BORDER TREES. 49 ing condition. In short, the owner of adjoin- ing lands has submitted to nothing which actu- ally encroached upon his rights, and cannot, therefore, be presumed to have assented to any such encroachment. Tlie use and enjoy- ment of the adjoining lands are certainly no more subordinate to those of the house where both are owned by one man than where the owners are different. The reasons upon which it has been held that no grant of a right to air and light can be implied from any length of continuous enjoyment are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To im- ply the grant of such a right in either case without express words would greatly embar- rass the improvement of estates, and, by rea- son of the very indefinite character of the right asserted, promote litigation. The sim- plest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and the use of lands, is that no right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed. In accordance with these views, the English doctrine of im- plied grants of rights of light and air has been wholly rejected in several well-consid- ered cases. Palmer v. Wetmore, 2 Sandf. 316; Myers v. Gemmel, 10 Barb. 537; Haver- stick V. Sipe, 83 Pa. St. 368; Mullen v. Striek- er, 19 Ohio St. 133; Morrison v. Marquardt, 24 Iowa, 35. And with the single exception of Janes v. Jenkins, 34 Md. 1, all the opinions of American judges with which the learning and research of counsel have supplied us, in favor of the acquirement of such a right by mere implication from the conveyance of a house, have been either, as in Lampman v. Milks, 21 N. Y. 505, 512, obiter dicta, or, as in Robeson v. Pittenger. 2 N. J. Eq. 57, in those states in which a like right is held to ex- ist by prescription, and therefore of no weight as authority in this commonwealth. Consid- ering, therefore, that by the preponderance of reason and of authority no grant of any right of light or air over adjoining lands is to be implied from the conveyance of a house, we have only to apply this rule to the facts of the cases pending before us." Judgment was or- dered for the defendants. The case of Keats v. Hugo lu-.i been quoted with approval, and recognized as authority in other states. Doyle v. Lord, 64 N. Y. 432, was a case where the facts were that the plaintiffs leased the first floor of a building in the city of New York for a store. In the rear was a yard attached to and exclusively appropriated for the use of the building, to which all the occupants had access through a hall running from the front to the rear of the building, and, as the building was occupied when the plaintiff leased, no tenant could dis- pense with it. The rear of the store received light necessary for the transaction of business therein from windows opening into the yard. GATES, R.P.—i In holding that the lessor could, upon the facts found, be restrained from building in. the j-ard so as to obstruct the light, the court (Earl, J.) said: "This conclusion is reached without any departure from what may be called the American doctrine as to light and air, as distinguished from the English com- mon-law doctrine, and the law as laid down in the following authorities is fully recog- nized: Parker v. Foote, 19 Wend. 315; Palm- er V. Wetmore. 2 Sandf. 316; Myers v. Gemmel, 10 Barb. 537; Mullen v, Strieker^ 19 Ohio St. 135; * * ♦ Haverstick v. Sipe,. 33 Pa. St. 368; Keats v. Hugo, 115 Mass. 204, * * * Under these authorities, if the lessor had sold the store and lot upon which it stood, twenty-five feet by fifty-one, the grantee would have taken no right to light and air from the balance of the lot. In that case the grantor could have built upon the balance of the lot, and thus have darkened the windows in the store without violating any rights of the grantee. In this case, if the yard had not been part of the lot upon which the building was standing, and if it had not been appropri- ated to use with the building so as to pass as appurtenant thereto so far as to give ease- ments therein to the tenants of the building, the plaintiffs could not have complained of the acts of the defendants alleged in the comr- plaint." X In Turner v. Thompson, 58 Ga. 268, an ex^ ecutrix sold a half lot of land, with a tenement thereon, opening upon the other half lot; and bought the other half herself at the same sale. It was held that she "will be estopped from obstructing the passage of light and air through such windows, if those windows were necessary to the admission of sufficient light and air for the reasonable enjoyment of the tenement which she sold; aliter, if sufficient light and air can be derived from other win- dows opened, or which could conveniently be* opened, elsewhere in the tenement, to make- file rooms reasonably useful and enjoyable.'' The court (Jackson, J.) cites with approval Keats V. Hugo, supra; adding: "The prin- ciple applied by the supreme court of West. Virginia in a recent case there seems to us- sound and sensible, and we shall adopt it irt this case. * * * That principle is that 'art implied grant of an easement of light will be- sustained only in cases of real necessity, and will be denied or rejected in cases when it appears that the owner claiming the easement can, at a reasonable cost, have or substitute other lights to his building.' " The court addsr "We apply this principle the more readily be- cause it appears to be the conclusion of Wash- burn (Easem. p. 618), drawn from a consid- eration of all the English and American au- thorities, and because, as before stated, it strikes us as reasonable and right. * * •= So Tyler approved the same principle (Tyler„ Bound. 550), and Judge Story is authority t& the same jwint (U. S. v. Appleton, 1 Sumn, 492-502, Fed. Gas. No. 14,463)." In this case- the injunction granted was dissolved, because 50 WHAT IS REAL PROPriRTY. the "decree, as it stands, might be held to en- join her from building, if these lights were at all impaired; and we think such action ought not to be had except in case of neces- sity as before explained." In Renuyson's Appeal, 94 Pa. St. 147, 152, both Keats v. Hugo and Turner v. Thompson are cited and approved, the opinion saying of the latter: "It is worthy of remark, how- ever, that this case limits the general applica- tion of Keats v. Hugo as between dominant and servient tenement in one important re- spect. I think the limitation is wise and right. It is that an implied easement of light and air will be sustained in case of real necessity." The opinion then proceeds to lay down the fol- lowing rules: "(1) No implication of a gi'ant of the right to light and air arises upon a sale of one of two adjacent lots having a house upon it, with windows overlooking the land of the grantor. (2) The grantor, by such sale, is not estopped from .improving his retained lot by building upon it, though his erection darkens the windows of his vendee, and ex- cludes the access of light and air from such windows. (3) That the limitation of these two propositions depends upon the fact as to whether such windows are a real necessity for the enjoyment of the grantee's property. If they be, then the implication of the grant of an easement of light and air wUl be sus- tained; if they be not, or can be substituted at a reasonable cost, with a view to the purposes of the dominant tenement, then such implica- tion will be denied and rejected. (4) The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such light. (5) The doctrine of ancient lights is not recognized." A somewhat earlier case than those just cited is that of Morrison v. Marquardt, 24 Iowa, 35, to which reference has already been made, and in which a very elaborate opinion was written by Dillon, C. J., and strong ground is taken against the implication of an easement of light and air, except in eases of strictest necessity. See, also, Sutphen v. Ther- kelson, 38 N.J. Eq. 318; White v. Bradley, m Me. 254; Brande v. Grace, 154 Mass. 210, 212, 31 N. E. 633,— where, in case of a plain- tiff lessee, held entitled to a remedy, the court said: "We do not regard this view of the rights of the parties as at aU inconsistent with the decision in Keats v. Hugo, 115 Mass. 204, and other cases, which hold or intimate that the necessity must be pretty plain in order to waiTant the implication of a grant." See, also. Case v. Minot, 158 Mass. 577. 33 N. E. 700,— a case similar to Doyle v. Lord, supi-a, to which it refers. Applying these principles to the case before us, what result is fairly reached? Here was a lot located on Bradley street, about six blocks from the center of the city of New Haven, with a frontage of 61 feet, and a depth of 98 feet. A dwelling house stood upon the westerly part of said lot The plain- tiff purchased said westerly part, 40 feet front- age, M'ith saiddwellinghousethereon. Thatleft the grantor a lot 21 feet front, which shortly afterwards was sold to the defenaunt. If we are to go into the business of raising pre- sumptions, — as we must, to support implied grants,— it is fair to suppose the plaintiff did not pay the price and value of the Gl-foot lot, for his 40-foot lot. But it would have been just for him to have done so, provided he in- tended to avail himself of the only beneficial use of it, — keeping it open and unoccupied, in order to have no obsti-uction to the light of his sitting and dressing room derived from his bay window. It is also fair to presume that his grantor would not have sold a por- tion for a less price than the whole, provided the remainder was thereby to become prac- tically useless to him; and, if he had charged the price of the whole for a portion, would not the plaintiff have insisted upon taking the whole instead of a portion only? But the grantor would not have sold a portion only, unless the part retained was beneticial to him. But in what could any substantial ben- efit from such a lot consist unless it could be built upon? And if building was contem- plated, there could be little question, appar- ently, in view of the naiTOwness of the lot, that such building would require to extend substantially to both sides of the ground. The fact that the plaintiff purchased laud extending 5 feet beyond the east 'face of his bay windows, and from 10 to 11 beyond that of his house, is significant. Such additional width of 5 feet would evidently have been useful to a 21-foot lot. But the plaintiff pur- chased it, thereby giving himself in fact, whatever his purpose may have been, a strip of that width, upon which no structure could be constructed without his act, to either ex- clude or impair his light. When the defend- ant, who lived near, and was fully acquaint- ed with the property, bought, what was the evident situation? He found a nan-ow, va- cant lot, adapted to the puri^oses of building; presumably to no other use. The plaintiff's house, itself upon a lot so naiTow that it ex- tended nearer to the opposite side of the lot than to the side in question, on which there were five feet clear beyond the uttermost ex- tension in a bay window, which projected five or six feet from the side of the house. Could any one purchasing property under such circumstances have supposed that it was the intention of the parties, in making and accepting the grant of the portion of the original premises which had been con- veyed to the plaintiff, that there should go with such premises, by implication— by im- plied grant— a right in the remaining portion of such premises, paramount to and prevent- ative of their beneficial use and enjoyment? We think not. Should the defendant, then, have been enjoined from the acts proposed? His intention was to build a dwelling house to extend down along the boundary line, for a distance of 58 feet from a point about 6 BORDER TREES. 51 feet from Bradley street, the vrall of which was to be about 20 feet high. It is found by the court that "the erection of said dwelling house would deprive the plaintiff of the sup- ply of light which has come across said 21 feet, now owned by the defendant, and would make it necessary for the defoudixnt to light his sitting room and dressing room with gas or some other light in the daytime, in order to obtain sufficient light for the rea- sonable use of the rooms." This is a finding of fact which we are not at liberty to re- view. But we have the right, and it is our clear duty, to interpret the language, so far as the same, by reason of indefiuiteness, re- quires interpretation, by the aid of those facts which pertain to that common and gen- eral fund of knowledge and information which belongs to the domain of things of which all courts ai-e bound to take judicial notice. By this assistance it becomes evi- dent that the depreciation of light which would ensue from the intended act of the de- fendant is far from total. The plaintiff would not only be left with so much light as would come from the unobstructed space between the buildings, including the addi- tional space covered by the northeastern and southeastern sides of his bay window, to which he could add by putting in windows elsewhere, or differently constructed; he would also have the light from overhead, be- yond the top of a wall 20 feet high; and as to his dressing room on the second story of his house, which does not extend so far east- ward into sevei'al feet as the sitting room bay window pi'ojection, the angle in which the light would be admitted would seem to be such as to make the obstitiction compara- tively small. It seems to us, therefore, that the proposed act of the defendant would be, in view of all the circumstances, an inter- ruption of light to the plaintiff to the extent •of that which is convenient only, not to that ■which is necessary for the reasonable enjoy- ment of his dwelling. Indeed, that enjoy- ment is not reasonable which deprives the defendant of any use of his property, in order merely that the plaintiff may, by reason of such deprivation, have a more comfortable, convenient, and better use of his own. In view of the facts found, as we interpret the finding, we conclude that an injunction could not have been granted had not the trial court adopted what we hold to be the wrong standard, substituting convenience for ne- cessity as the test by which to determine the existence of the right claimed. In this respect also the court erred. The court also erred in granting an injunc- tion in so indefinite terms. It is impossible to lay down any precise rule of universal ap- plication upon the subject. But the person enjoined is entitled to know with reasonal)le certainty what acts he may and may not do without making himself liable as in contempt of an order. In reference to light, it was the claim of the defendant throughout— a claim which we are not at liberty to say was not made in good faith— that the erection in- tended to be made by him would not be of such a character or "so near as to exclude the light from the plaintiff's dwelling house." This claim the court overruled. But there is nothing in the injunction to indicate whether any erection, or, if so, how near, or of what a character, would be permissible. Without endeavoring to state what degree of certain- ty would have been reasonably practicable under the circumstances, which is unneces- sary in view of what we have held upon the other questions in the case, it is sufficient to say that it seems to us the language em- ployed falls short of the degree of definite- ness which could without inconvenience be attained, and should be required. There is error, and a new trial is granted. The other judges concurred. 52 WHAT IS REAL PROPERTY. BRACKETT v. GODDARD. (54 Me. 309.) Supreme Judicial Court of Maine. 1867. D. D. Stewart, for plaintiff. A. W. Paine, for defendant. APPLETON, 0. J. This is an action brought to recover the price of certain logs sold by the defendant to the plaintiff. The claim is based upon ian alleged failure of the defend- ant's title. The defendant, while owning a lot of land in Hermon, cut down a quantity of hemlock trees thereon. After peeling the bark therefrom and hauling it off the land, he conveyed the lot to one Works, by deed of warranty, without any reservation whatever. At the date of this deed, the hemlock trees in controversy were ly- ing on the lot where they had been cut, with the tops remaining thereon. The defendant, after "his deed of the land to Works, conveyed the hemlocks cut by him to the plaintiff. Works, the grantee of the de- fendant, claimed the same by virtue of his deed. The question presented is whether the title to the logs is in the plaintiff or in Works. Manure made upon a farm is personal prop- erty and may be seized and sold on execution. Staples V. Emery, 7 Greenl. 301. So, wheat or corn is a growing chattel and may be sold on execution. Whipple v. Tool, 2 Johns. 419. Yet it is held that growing crops and manure, lying upon the land, pass to the vendee of the land, if not excepted in the deed (2 Kent, Comm. 346), or by statute, as in this state by Rev. St. c. 81, § 6, cl. 6. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, with- out any intent of diverting them from their use, as such, are a part of the freehold, an^ pass by a conveyance of the farm to a pur- chaser. Goodrich v. Jones, 2 Hill, 142. Hop poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop and piled in the yard, with the inten- tion of being replaced in the season of hop rais- ing, are part of the real estate. Bishop v. Bishop, 11 N. Y. 123. Timber trees, if blown down, or severed by a stranger, pass by a deed of the land. "We think that it cannot admit of a doubt," re- marks Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, "that trees felled and left upon the land, fruit upon trees, or fallen and left under the trees where it grew, and stones lying upon the earth, go with the land, if there be no reservation." The hemlock trees were lying upon the ground. The tops and branches were remain- ing upon them. They were not excepted from the defendant's deed, and, being in an un- manufactured state, they must, from analogy to the instances already cited, pass with the land. Such, too, is the statute of 1867 (chap- ter 88), defining the ownership of down timber. It would have been otherwise, had they been cut into logs or hewed into timber. Cook v. Whitney, 16 111. 481. The defendant, at the plaintiff's request, trav- elled from another state, as a witness, to tes- tify for him in his suit against Works. He claims to have his fees allowed in set-off in this suit. His account in set-off was regularly filed. He is entitled to compensation therefor, which, as claimed, will be travel from his then place of residence, and attendance, in accordance with the fees established by statute. Offset allowed. Defendant defaulted, to be heard in damages. CUTTING, KENT, WALTON, DICKER- SON, and BARROWS, JJ., concurred. TAP- LEY, J., dissented. EMBLEMENTS. 53 GRAVES V. WELD. (5 Barn. & Adol. 105.) Court of King's Bench. 1833. Mr. Follett, for plaintiff. Mr. Gambler, for defendant. DENMAN, C. J. In this case the plaintiff is undoubtedly entitled to emblements. The question is, whether that which is here called the second crop of clover falls under that de- scription? We think it does not. In the very able argument before us, both sides agreed as to the principle upon which the law which gives emblements was originally established. That principle was, that the ten- ant should be encouraged to cultivate, by be- ing sure of receiving tlie fruits of his labor; but both sides were also agreed that the rule did not extend to give the tenant all the fruits of his labor, or the right might be extended in tha.t case to things of a more permanent na- ture, as trees, or to more crops than one; for the cultivator very often looks for a compen- sation for his capital and labor in the produce of successive years. It was, therefore, ad- mitted by each, that the tenant could be en- titled to that species of product only which grows by the industry and manurance of man, and to one crop only of that product. But the plaintiff insisted that the tenant was entitled to the crop of any vegetable of that nature, whether produced annually or not, which was growing at the time of the cesser of the ten- ant's interest. The defendant contended that he was entitled to a crop of that species only which ordinarily repays the labor by which it is produced, within the year in which that la- bor is bestowed, though the crop may, in es- traordina.ry seasons, be delayed beyond that period. And the latter proposition we consider to be the law. It is not, however, absolutely necessary to decide this question; for, assuming that the plaintiff's rule is the correct one, the crop which is claimed was not the crop growing at the end of the term. The last cestui que vie died in July. The barley and the clover were then growing together on the same land, and a crop of both, together, was taken by the plaintiff in the autumn of that year; though the crop of clover of itself was of little value. Thus the plaintiff has had one crop. And if it were necessary, either generally, or in the particular case, that the crop taken should re- munerate the tenant, we must observe, that though the crop of clover alone did not repay the expense of sowing and preparation, the case does not find that both crops together did not repay the expenses incurred in raising both. The decision, therefore, might proceed on this short ground; but as the more gen- eral and important question has been most fully and elaborately argued, we think it right to say we are satisfied that the general rule laid down by the defendant's counsel is the right one. The principal authorities upon which the law of emblements depends are Littleton (section 08), and Coke's commentary on that passage. The former is as follows: "If the lessee sow- eth the land, and the lessor, after it is sowne, and before the corne is ripe, put him out, yet the lessee shall have the corne, and shall hiive free entry, egresse and regresse to cut and Car- rie away the corne, because he knew not at what time the lessor would enter upon him." Lord Coke (Co. Litt. 5oa), says: "The reason of this is, for that the estate of the lessee is uncertaine, and, therefore, lest the ground should be unmanured, which should be hurt- ful to the commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine liis will before it be ripe. And so it is if he set rootes or sow hempe, or flax, or any other annuall profit, if after the same be planted, the lessor oust the lessee; or if the lessee dieth, yet he or his executors shall have that yeare's crop. But if he plant young fruit trees, or young oaks, ashes, elmes, &c., or sow the ground with acornes, &c., there the lessor may put him out notwithstanding, because they will yield no present annuall prof- it." These authorities are strongly in favour of the rule contended for by the defendant's counsel. They confine the right to things yield- ing present annual profit, and to that year's crop which is growing when the interest deter- mines. The case of hops, which grow from ancient roots, and which yet may be emble- ments, though at first sight an exception, real- ly falls within the rule. In Latham v. At- wood, Cro. Oar. 515, they were held to be "like emblements," because they were "such things as grow by the manurance and industry of the owner, by the making of hills and set- ting poles." That labour and expense, with- out which they would not grow at all, seems to have been deemed equivalent to the sowing and planting of other vegetables. Mr. Cruise, in his Digest (volume 1 [3d Ed.] 110), says that this determination was probably on ac- count of the great expense of cultivating the ancient roots. It may be observed, that the case decides that hops, so far as relates to their annual product only, are emblements; it by no means proves, that the person who plant- ed the young hops would have been entitled to the first crop whenever produced. On the other hand, no authority was cited to show that things which take more than a year to arrive at maturity, are capable of be- ing emblements, except the case of Kingsbury V. Collins, 4 Bing. 202, in which teazles were held by the court of common pleas to be so. But this point was not argued, and the court does not appear to have been made acquainted with the nature of that crop or its mode of cultivation, or it may be, that in the year when the plant is fit to gather, so much labour and expense is incurred, as to put it on the same footing as hops. We do not therefore con- sider this case as an authority upon the point in question. The note of Serjeant Hill in 9 Vin. Abr. 368, in Lincoln's Inn Library, which Mr. Gam- 64 WHAT IS EEAL PROPERTY. bier quoted, is precisely in point in the present case, and proves that, in the opinion of that eminent lawyer, the crop of clover in question does not belong to the plaintiffs. It is stron- ger, because there the estate of the tenant is supposed to determine after harvest, whereas liere it determined before. The weight of authority, therefore, is in fa- vour of the rule insisted upon by the defend- ant. There are besides some inconveniences, doubts, and disputes, which were pointed out in the argument, which would arise if the oth- er rule were to prevail. Is the tenant to have the feeding in autumn, besides the crop in the following year? If so, he gets something more than one crop. Is he to have the pos- session of the land for the purpose? Or is the reversioner to have the feeding; and, in that case, is the reversioner to be liable to an action if he omits to feed off the clover, and thereby spoils the succeeding crop? These in- conveniences do nol; arise if the defendant's rule is adopted. It also prevents the rever- sioner from being kept out of the full enjoy- ment of his land for a longer time than a year at the most; whereas, upon the other suppo- sition, that period may be extended to two or more years, according to the nature of the crop. We are therefore of opinion th.at the rule regulating emblements is that which the de- fendant has contended for, and that for this reason also he is entitled to our judgmemt. Judgment for the defendant. EMBLEMENTS. 55 BRADLEY v. BAILEY et al. (15 Atl. 746, 56 Conru 374.) Supreme Oourt of Errors of Connecticut. Jan. 13, 1888. Appeal from court of common pleas, New Haven county; Deming, Judge. Trespass by James H. Bradley against George R. and Abraham L. Bailey for entering upon land occupied by plaintiff, and destroying a crop of rye growing thereon. Plaintiff recov- ered judgment in the court of common pleas, and defendants appealed. L. Harrison and E. Zacher, for appellants. E. P. Arvine and G. A. Tyler, for appellee. BEARDSLEY, J. This is a complaint in trespass, in which the defendants appeal from an adverse judgment in the court of common pleas. The material allegations of the com- plaint are that one John R. Bradley was ten- ant for life of a certain tract of land, of which the defendant George R. Bailey was tenant for life in remainder; that John B. Bailey, in the month of April, 1885, leased the tract to the plaintiff for the term of three years; that the plaintiff sowed a portion of the tract with winter rye on the 18th of September, 1885; and that John B. Bailey died on the 20th of September, 1885, and that George R. Bailey, and the other defendant, by his direction, in the month of June following, plowed in and destroyed the crop of rye then maturing. The truth of these allegations of the complaint was admitted upon the trial, except that the de- fendant claimed that the rye was sown on the 19th instead of the 18th day of September, 1885; which, however, is immaterial. The only question which we are called upon to consider arose under the issue formed by the plain- tiff's traverse of the second answer to the com- plaint, the material part of which is as fol- lows: The defendants say that if the plain- tiff did anything upon said premises on Septem- ber 18th or 19th, 1885, he did the same with full knowledge that said John B. Bailey was then dying; that if he did anything it was nothing more than to harrow the soil in a hasty and superficial manner immediately after he had dug his crop of potatoes from the same, and to scatter a few seeds upon the same, with- out having first plowed and manured the same, as is customary and proper with the farmers in this state, and at an untimely season of the year, and without laying the same down to grass, as is customary and proper, — all of said acts of the plaintiff being for the purpose of defrauding said George R. Bailey in his use of and right to said land after the death of said John B. Bailey." Upon the trial of this case to the jury the plaintiff, in reply to inquiries made by the defendants upon cross-examina- tion, described the manner in which he pre- pared the ground for the crop. The defend- ant afterwards asked his own witness this question: "What is the customary way of sow- ing rye, and preparing the ground for it?" The court excluded this question, upon the objec- tion of the plaintiff that there was no estab- lished custom, and that it was immaterial. The defendants claimed the testimony to show that the land was not prepared in the customary way as a part of the alleged defense. This ruling of the court is assigned for error. In support of the allegation in the answer that the plaintiff knew that Bradley, the tenant for life, was dying when he sowed the crop, the defendants called Dr. Webb, the physician who attended him during the month of September, 1885, and who, after describing his symptoms, testified that for the last week or more of his life he was gradually failing every day, grow- ing weaker and nearer to his end every day, and that this was apparent to every one who had common sense. It was admitted that at the time of his death, and for several months before, he resided with the plaintiff. The de- fendants then offered several witnesses to tes- tify, — one, that Bradley appeared to be dying on the IGth and 17th of September, when the plaintiff was present; another, that the plain- tiff's attention was called by him to Bradley's condition on the 18th of September, 1885; an- other, tliat the plaintiff had said on the 18th and 19th of September that Bradley could not live through the night; and another, that the plaintiff had said, a few days before Bradley's death, that he was very low. All of this evi- dence, except the testimony of Dr. Webb, was objected to by the plaintiff, and excluded. The plaintiff, against the objection of the defend- ants, was permitted to testify, in contradiction of Dr. Webb, that the doctor had told him, as late as the last week of Bailey's life, that "he might live for quite a long time; that he might get out of it, and live for a year or two, and perhaps longer, and might not live so long as that." The court charged the jury on this point as follows: "The question, then, is, did the plaintiff know for a certainty that his less- or, the tenant for life of the estate, would die before he could mature that crop".'' If we find that there was any uncertainty in regard to the duration of the life of Mr. Bailey, you must find for the plaintiff. If you find that the time of his death was so certain that he (Bradley) had no doubt in regard to it, then your verdict should be for the defendants." The several rulings of the court, and the charge to the jury referred to, are assigned for error. We do not think that either of them afford the defendants any ground of exception. On the contrary, we think that the charge was too favorable to the claim of the defendants. It was adapted to the issue between the par- ties, and would perhaps have been unobjection- able if that issue had been a material one; but the isssue was an immaterial one, and the plaintiff would have been entitled to judgment upon the conceded facts if it had been foimd in favor of the defendants. If it were possible for the plaintiff to have had absolute knowledge beforehand of the time of Mr. Bailey's death, and he had known that it would occur before 56 WHAT IS REAL PROPERTY. the maturity of the crop which he was plant- ing, his right to it would not be thereby de- feated. In Co. Litt. 55b, note 1, the law is thus stated: "So, therefore, if tenant for life soweth the ground and dieth, his executors shall have the corn, for that his estate was un- certain, and determined by the act of God; and the same law is of the lessee for years of the tenant for life." Blackstone says, (2 Comm. 122:) "Therefore if a tenant for his own life sows the land, and dies before harvest, his ex- ecutors shall have the emblements or profits of the crop; for the estate was determined by the act of God, and it is a maxim of the law that actus Dei nemini facit injuriam." We are re- ferred to no case in which the exception claimed by the defendants has been made to this rule during the centuries of its existence. To hold that this right may be defeated after the ten- ant's death, by evidence of his condition of health, or by his declarations or those of his lessee imputing a belief,, however well founded, or knowledge, if such knowledge be possible, that his life would not continue until harvest time, would in many cases subvert an important object of the rule,— the encouragement of hus- bandry,— and open a fruitful source of unseem- ly litigation. A tenant in failing health, espe- cially if he had expressed a belief that his end was near, would naturally hesitate to put in crops which might be successfully claimed by his successor in title, or in respect to which his estate might become involved in litigation. The question asked by the defendants of a wit- ness as to the customary mode of sowing rye, and preparing the ground for it, was properly excluded. We have shown that the plaintiff had a right to sow the rye for his own use, and it was a matter of no consequence to the remainder-man how he did it. Nor did his right to the crop depend upon his cultivating the land according to the rules of good husbandry. If it was done in an unhusband like manner, and in such a way that the crop would be an in- considerable one, it would be wholly his own loss. The fact of his hurried and imperfect mode of sowing the land may have been of pertinence to the question whether he was in reality sowing rye, or only pretending to do so. But it was not offered for this purpose, but to show that he was acting in the belief that the tenant for life would die in a few days. But, as we have already shown, this belief was of no importance. His right did not depend upon the condition of the tenant for life. And he would have no interest in putting any labor on the land as a matter of mere pretence, as he would only lose his labor by so doing. There is no error in the judgment appealed from. The other judges concurred. FIXTURES. 57 WALKER V. SHERMAN. (20 Wend. 636.) Supreme Court of New York. Oct., 1839. L. Walker and B. D. Noxon, for plaintiff. C P. Kirkland, for defendant. COWEN, J. Judging from the aflSdavits be- fore us, the machinery which the commission- ers excluded as being personal property, was such only as was movable, and in noway physic- ally attached to the factory or land, though it had been used for several years, as belong- ing to the factory, and was as material to its performance in certain departments of its work, as the machinery which was actually affixed. Did the commissioners err in disregarding the movable machines? That is the only question. If they were right, the equality and justice of the partition are apparent upon the proofs; if wrong, the report should be set aside, and the commissioners be required to review their de- cision. The question is one between tenants in com- mon, the owners of the fee; and is, we think, to be decided on the same principle as if it had arisen between grantor and grantee, or as if partition had been effected by the parties through mutual deeds of bargain and sale. As between such parties, the doctrine of fixtures making a part of the freehold, and passing with it, is more extensively applied than between any others. As between tenant for life or years and reversioner or remainder man, all erections by the former for the purposes of trade or manu- factures, though fixed to the freehold, are con- sidered as his personal property, and as such, may be removed by him during his term, or be made available to his creditors on a fieri facias. On his death, they go to his executors or ad- ministrators; yet by a conveyance, they pass to the vendee. Fructus industriales, it is well known, always go, on the owner's death, to the executor or administrator, not to the heir; whereas, they are carried by a devise or other conveyance of the land, to the devisee or ven- dee. Spencer's Case, Winch, 51; Austin v. Sawyer, 9 Cow. 39; Wilkins v. Vashbinder, 7 Watts, 378, and the cases there cited overrul- ing Smith V. Johnston, 1 Pen. & W. 471, con- tra. The general rule is, that anything of a personal nature, not fixed to the freehold, can- not be considered as an incident to the land, even as between vendor and vendee. The Eng- lish cases on this subject are, most of them, well collected and arranged in Amos & F. Fixt. p. 1, c. 1; Id. (Am. Ed. 1830) p. ISO, c. 5. For some still later, see Gib. Fixt. p. 15, c. 2. The American cases are mostly collected in 2 Kent, Comm. (3d Ed.) 345, note c. 1 have said that as a general rule, they cannot be considered an incident unless they are affixed. This is not universally so. A temporary disannexing and removal, as of a millstone to be picked, or an anvil to be repaired, will not take away its char- acter as a part of the freehold. Locks and keys are also considered as constructively annexed; and in this country it must be so with many other things which are essential to the use of the premises. Our ordinary farm fences of rails, and even stone walls, are affixed to the promises in no other sense than by the power of gravitation. It is the same with many other erections of the lighter kind about a farm. I shall hereafter have occasion to notice these and a few other like instances of constructive fix- tures. I admit that some of the cases are quite too strict against the purchaser; but as far as I have looked into them, and I have examined a good many, both English and American, they are almost uniformly hostile to the idea of mere loose movable machinery, even where it is the main agent or principal thing in prosecuting the business to which a freehold property is adapted, being considered as a part of that free- hold for any purpose. To make it a fixture, it must not only be essential to the business of the erection, but it must be attached to it in some way; at least, it must be mechanically fitted, so as, in ordinary understanding, to make a part of the building itself. The question has been occasionally examined in this court as between grantor and grantee, and in some other relations. The most material cases are Heermance v. Vernoy, 6 Johns. 5; Cresson v. Stout, 17 Johns. 116, 121; Miller v. Plumb, 6 Cow. 665; Austin v. Sawyer, 9 Cow. 39; and Raymond v. White, 7 Cow. 319. None of them treat a personal thing as a fixture short of physical annexation; and some are peculiar- ly strong against the purchaser. The first re- lated to a sale of land, on which was a bark- mill, and a stone for grinding bark, to be used in a tannery. The court said, it seems to be the better opinion that the mill was personal property: for the millstone, with the building covering it, was accessory to the tanning busi- ness, a matter of a personal nature. Taken up- on that I'eason, a saw-mill or grist-mill would hardly have passed by such a conveyance; yet it has been settled ever since the Year Book 14 Hen. VIII. p. 25, that the stones of a grist- mill are a part of the freehold, though removed for the purpose of being picked; and they shall pass by a sale of the land. Amos & F. Fixt. p. 183. In Cresson v. Stout, Mr. Justice Piatt expressed his opinion, that frames in a factory for spinning flax and tow, though fastened by upright pieces extending to the upper floor, and cleats nailed to the floor round the feet, neither of the machines being nailed to the building, would not be considered as a part of the free- hold. He thought, therefore, that they might be levied on as personal propei'ty, under a fi. fa. against the owner. But the question was not finally decided. Had the judgment debtor been a mere tenant for life or years, the ma- chinery erected bj' him would doubtless have been subject to execution against him. But he appears to have owned the fee, subject to a mortgage. In the case of Swift v. Thompson, 9 Conn. 63, the dictum of Piatt, J., was followed with respect to cotton machinery, the posts of which were fastened to the floor by wooden screws set 58 WHAT IS REAL PROPERTY. into the floor. By unscrewing, the machinery could be reniored without injury to the build- ing. Dagget, J., said: "We resort, then, to the criterion established by the common law: could this property be removed witliout injury to the freehold ? The case finds this fact. This, then, should satisfy us." The views of the learned judge are sustained by the strong case of Gale V.Ward, 14 Mass. 352. There, the own- er of the freehold had carding machines in his woollen factory, "not nailed to the floor, nor in any manner attached or annexed to the build- ing, unless it was by the leather band which passed over the wheel or pulley, as it is called, to give motion to the machines. This band might be slipped off the pulley by hand, and it was taken off, and the machines removed from time to time, when they were repaired. Each machine was so heavy as to require four men to move it on the floor, and was too large to be taken out at the door. But it was so con- structed as to be easily unscrewed and taken in pieces; and the machines wei'e so taken in pieces, when removed by the deputy sheriff." He had levied upon them as being the personal property of the freeholder, entirely distinct from the realty. Parker, C. J., said: "They must be considered as personal proiierty, because al- though in some sense attached to the freehold, yet they could easily be disconnected, and were capable of being used in any other building erected for similar purposes. It is true, that the relaxation of the ancient doctrine respect- ing fixtures has been in favor of tenants against landlords; but the principle is correct in every point of view." But see Bank v. Emerson, 15 Mass. 159, and W^hiting v. Brastow, 4 Pick. 310. Gale v. Ward is questioned by Richard- son, C. J., in Kettredge v. Woods, 3 N. H. 506. Some of the doctrine in McLintock v. Graham, 3 McCord, 553, was equally strong with that in Gale v. Ward. A still was fixed in a rock furnace, which furnace was built inside and against the wall of a house that had been erected for the express purpose of a still. The whole stood on a tract of land sold under a fi. fa. against the owner, and the court said the still did not pass. But there was evidence of tlie still being excepted at the sheriff's sale, and sold to another; so that the question did not rest entirely on annexation. Besides, as to this point, the case was aft8«jvards shaken by Fair- is V. Walker, 1 Bailey, 540, which I shall pres- ently notice more at large. Hutchinson, C. J., in Wetherbee v. Foster, 5 Vt. 142, denied that potash kettles set in brick arches, with chim- neys, are real estate. But he cited no authori- ty. The case of Duck v. Braddylb, 1 McClel. 217, 13 Price, 455, treats cotton machinery, placed and fastened for the purposes of stabili- ty, by a tenant for years in a manufactory, as subject to be distrained by his landlord for rent, and to be taken in execution against him. This, doubtless, was so under the peculiar circum- stances of that case. Mr. Gibbons remarks, upon this case (Gib. Fixt. 20) that such ma- chinery would seem not to be a fixture, if fasten- ed by bolts or screws, and capable of being re- moved and replaced without injury, either to- the machinery or the building. But the ques- tion, whether it should be deemed a fixture as between the owner of the freehold and his dev- isee or grantee, could not arise; and, accord- ing to the report in Price, the court expressly refused to pass on the question of fixture; ac- cording to McClelland, they silently omitted to notice the point. The third case which I noticed as decided in this court was Miller v. Plumb. This regard- ed an ashery; and the court recognized and acted on the general distinction, that things in. any way fixed to the freehold, e. g., potash ket- tles set in an arch of mason work with a chim- ney, though the arches were placed on a plat- form and not fastened to the building, would. pass by a sale of the premises; but it was held, that small kettles, not fixed in any way, though necessary for use in the ashery, would not pass. The distinction between the relation of vendor and vendee, tenant and landlord, was distinctly considered and recognized. See, also, Reynolds V. Shuler, 5 Cow. 323. The same distinction was held by Savage, C. J., in Rayriiond v. •White. The question there was in respect to- a heater used in a tannery, but in no way at- tached to the building. It was placed in a leach or vat, which latter was detached from the building, except that a small piece of board was tacked with nails to the vat and to the side of the building. But there was no necessity for fastening the vat, and the fastening was of no use except to keep the side standing while the vat was put together. The question was really one between landlord and tenant. But Savage,. C. J., said the heater could not be considered as- part of the realty, even if the person who placed, it had owned the tannery. 7 Cow. 321. In Kirwan v. Latour, 1 Har. & J. 289, the sheriff had sold, under a fi. fa. against the owner, a house and lot with the appurtenances. This house was built for a distillery; and the imple- ments necessary to carry on the business were on the premises at the time of the sale. In trover by the owner for these, the court held that the pumps, cisterns, iron grating, door^ distillery, and horse mills, passed by the sher- iff's deed, but not the joists, vats, buckets,, pickets, and faucets. The case went on the distinction between things affixed to the free- hold and the mere loose utensils necessary for carrying on the business. The former were held to pass, though Chase, J., conceded that a tenant erecting them might have taken them away. It being as he said the same as a question between ordinary vendor and ven- dee, "everything passed which was annexed to the freehold." Id. 291. The same thing was said as to the fixtures in an iron foundry. Hare V. Horton, 5 Barn. & Adol. 715. Park, J., said: "Prima facie, a mere conveyance of the foundry would have passed them." Taunton, J., said, if the deed had only mentioned the foundry, the fixtures would have passed. "There are many cases which show this." Pat- terson, J., said: "I should be sorry to bring into question the decision of this court, that a. FIXTURES. 59 conveyance of premises will pass all that is at- tached to them." And Bank v. Emerson, 15 Mass. 159, narrows the general reasons of Gale Y. Ward. It holds that a kettle fixed in brick- work in a fulling-mill, passed to the mortgagee of land, on which the fulling-mill stood, though the appurtenances were not mentioned. The court recognized the usual distinction in favor of tenants. So they did in Whiting v. Bras- tow, 4 Pick. 310. In Fairis v. Walker, 1 Bailey, 540, the plaintiff sold and conveyed his plantation to the defendant. On this, cotton was grown; and a cotton gin was in a gin-house on the premises attached to the gears. The plaintiff brought trover for the gin; but the court were of opinion that it was a fixture, and passed with the freehold. They said that, as between heir and executor, or vendor and ven- dee, "all things which are necessary to the full and free enjoyment of the freehold, and are in any way attached to it, are held to be fix- tures, and pass with it." In the Case of Olym- pic Theatre, 2 Browne, 279, 285, the court said: "The permanent stage is so Qxea xo tne free- hold that it ought to be considered as a part of it. But the movable scenery and flying stages are not necessary accessaries to the enjoyment of the inheritance. They were only necessary for the purposes of theatrical exhibitions, which in this respect must be considered as a species of trade. We are, therefore, of opinion, that they do not belong to the inheritance, and con- sequently, are not subject to the liens, particu- larly when conflicting with the claims of execu- tion creditors." The court recognized the dis- tinction in favor of tenants; but they appear to consider the rule as also very strict against the heir when the question arises between him and the executor, which has been said to be the same in respect to fixtures as between ven- dor and vendee. Spencer, C. J., in Holmes v. Tremper, 20 Johns. 30. Miller v. Plumb, 6 Cow. 665. In the Case of Olympic Theatre, the court say (2 Browne, 285): "The general rule appears to be, that where the instrument or utensil is an accessary to anything of a per- sonal nature, as to the carrying on a trade, it is to be considered a chattel; but where it is a necessary accessary to the enjoyment of the inheritance, it is to be considered as a part of the inheritance; a rule as broad as that stated in Heermance v. Vernoy, and which has since been utterly repudiated by the Pennsylvania cases. In Gray v. Holdship, 17 Serg. & R. 413, a copper kettle or boiler in a brew-house was held to be a part of the freehold, though very slightly attached; and the court mention the wheels, stone's, and bolting-cloths of a mill as parallel and familiar instances. Id. 415. So the engine by which a steam saw-mill is pro- pelled, thus performing the usual office of a wa- ter-wheel. The court mentioned the gears of a mill as part of the freehold. Morgan v. Ar- thurs, 3 Watts, 140, and see Lemar v. Miles, 4 Watts, 330, S. P. admitted. So a steam en- gine, with all its fixtures, used to drive a bark- mill in a tannery, being erected by the owner of the freehold, was held to pass by a sale of the latter. Ives v. Ogelsby, 7 Watts, 106. In Massachusetts, two stoves fixed to the brick- work of a chimney were held to pass. Goddard V. Chase, 7 Mass. 432. In Gib. Fixt. 17, the learned author remarks that: "In Horn v. Baker, 9 East, 215, it was not doubted but the distillers' vats, supported upon brick-work and timber, but not let into the ground, and vats standing on horses or frames of wood, were goods and chattels; and that stills set in brick- work, and let into the ground, were fixtures." He adds that a copper merely resting on a brick-work socket, and a water-butt standing on the ground or a wooden stool, are not fix- tures. Otherwise if the copper were fastened in brick-work. A deed conveying a saw-mill was held to pass a mill-chain, dogs and bars, they being in their appropriate places at the time. Farrar v. Stackpole, 6 Greenl. 154. The great diflioulty arose as to the chain. This was attached by a hook to a piece of a draft-chain, which was fastened to the shaft by a spike. The chain was prepared for being hooked and unhooked at pleasure. The premises in question were here conveyed as a saw-mill eo nomine. The chain was commonly used in drawing logs into the mill. The court, therefore, thought that it might pass as being essential to the mill, and therefore included in the terms of the convey- ance. But, they added, "we are also of opin- ion, that it ought to be regarded as appertain- ing to and constituting a part of the realty." See, in connection with this, the remarks of Hart, Vice Ch., near the close of his opinion in Lushington v. Sewell, 1 Sim. 435, as to what will pass by the devise of West India land by the name of a plantation. Certain things are fixtures or not, in their own nature, independent of the fact of annexation. Accordingly, some things which are entirely de- tached from the freehold are, notwithstanding, holden constructively to belong to and pass with it. Such cases arise where the fixture is de- tached for some temporary purpose. We before noticed the removal of a millstone to be picked as one instance. Amos & F. Fixt. 183. So, where the stones and irons of a grist-mill were accidentally detached by a flood carrying away the main body of the mill, they were still hold- en to continue a part of the realty, and there- fore not to be seizable on fi. ta. at the suit of a creditor, as personal property. Goddard v. Bolster, 6 Greenl. 427. On the other hand, ar- ticles of furniture movable in their nature are not fixtures, though attached by screws, nails, brackets, &c. Such are hangings, pier-glasses, chimney-glasses, book-cases, carpets, blinds, curtains, &c. Gib. Fixt. 20, 21. Whatever its use or object, however, unless the thing were physically annexed to the freehold in some way, it has in general been held not to pass even as between vendor and vendee. This was held of a stove standing on the floor during winter, the funnel running into the chimney, but being loose and not plastered in. The stove was up at the time of the conveyance. Williams v. Bailey, 3 Dane, Abr. 152. So of a padlock, and 60 WHAT IS REAL PROPERTY. loose boards used for putting up corn in the bins of a corn-house, said in Whiting v. Brastow, 4 Pick. 311. So of a heater, placed loose in the vat of a tannery. Savage, Ch. J., in Raymond V. White, before cited. The case of the stove has been questioned, as I shall notice hereafter. The cases of constructive annexation, where the article is seldom or never corporally attach- ed to the realty, are few, and may be set down as exceptions to the general rule. They are said to be the charters or deeds of an estate and the chest containing them, deer in a park, fish in a pond, and doves in a dove house. 2 Com. Dig. "Biens," B; 6 Greenl. 157; 3 Dane, Abr. 156; 3 N. H. 505. The deer, fish, and doves are set down by Amos & F. Fixt. 168, as heir- looms; and so of various other animals. Heir- looms are a class of property distinct from fix- tures. But "the doors, windows, locks, keys, and rings of a house will pass as fixtures, by a con-?eyance of the freehold, although they may be distinct things; because they are construct- ively annexed to the house." Amos & F: Fixt. 183, and the books there cited. Many other obvious cases may be supposed. One is, our or- dinary Virginia fence on country farms. No vendor would consider that as mere personal property. And in Kittredge v. Woods, 3 N. H. 503, it was held that manure lying about a barnyard passed by a conveyance of the land as an incident. These in&tances seem fully to justify the courts when they speak of the great difficulty in fixing on any certain criterion which shall govern all cases. They lead to a strain of rea- soning by Mr. Dana, in the 3d volume of his Abridgment (page 156) as well by Weston, J., in Farrar v. Stackpole, by which, if followed out in practice, the machinery now in question might well be considered as a part of the realty, and therefore the subject of partition. Mr. Dana says, that in all the instances put by him, the articles "are very properly a part of the real estate and inheritance, and pass with it, because not the mere fixing or fastening to it is alone to be regarded; but the use, nature, and intention." Mr. Dana questions the de- cision in Williams v. Bailey, before cited, de- nying that the stove passed. 3 Dana, Abr. 157. See, also, Amos & F. Fixt. 154, 155. And Wes- ton, J., says (6 Greenl. 157): "Modern times have been fruitful of inventions and improve- ments, for the more secure and comfortable use of buildings, as well as of many other things which administer to the enjoyment of life. Venetian blinds, which admit the ajr and ex- clude the sun, whenever it is desirable so to do, are of modern use; so are lightning-rods, which have now become common in this country and in Europe. These might be removed from build- ings without damage; yet, as suited and adapt- ed to the buildings upon which they are placed, and as incident thereto, they are, doubtless, part of the inheritance, and would pass by deed as appertaining to the realty. But the genius and enterprise of the last half century has been in nothing more remarkable than in the em- ployment of some of the great agents of nature, by means of machinery, to an infinite variety of purposes, for the saving of human labor. Hence, there has arisen in our country a multi- tude of establishments for working in cotton, wool, wood, iron, and marble; some under the denomination of mills, and others of factories, propelled generally by water power, but some- times by steam. These establishments have, in many instances, perhaps in most, acquired a general name, which is understood to em- brace all their essential parts; not only the building which shelters, encloses, and secures the machinery, but the machinery itself. Much of it might be easily detached, without injury to the remaining parts, or the building, but it would be a very narrow construction, which should exclude it from passing by the general name by which the establishment is known, whether of mill or factory. The general prin- ciples of law must be applied to new kinds of property, as they spring into existence, in the progress of society, according to their nature and incidents, and the common sense of the com- mimity. The law will take notice of the mutations of language, and of the meaning of new terms, applied to new subjects, as they arise. In other words, it will understand words used by parties in their contracts, wheth- er executed or executory, whether in relation to real or personal estate, according to their ordinary meaning and acceptation." He then supposed the steam saw-mill at Bath to be con- veyed by its name of a steam saw-mill, and adds: "If you exclude such parts of the ma- chinery as may be detached without injury to the other parts, or to the building, you leave it mutilated and incomplete, and insufficient to perform its intended operations. The parties, in using the general term, would intend to em- brace whatever was essential to it, according to its nature and design; and the law would, doubtless, so construe the conveyance as to effectuate the lawful intention of the parties." In aid of these views, undoubtedly, comes the reasoning of Lord Mansfield on the question between the heir and executor respecting the salt-pans. Lawton v. Salmon, 1 H. Bl. 259, note, 3 Atk. 16, note 1. "The present case is very strong. The salt spring is a valuable in- heritance; but no profit arises from it unless there is a salt-work, which consists of a build- ing, &c., for the purpose of containing the pans, &c., which are fixed to the ground. The in- heritance cannot be enjoyed without them. They are accessaries necessary to the use and enjoyment of the principal. The owner erect- ed them for the benefit of the inheritance. He could never mean to give them to the executor," «&c. This case shows how the fire engines in Lawton v. Lawton, 3 Atk. 12, erected by the tenant for life, and there claimed by and allow- ed to his executor against the remainder-man, would have been decided, had the question been between the executor and heir, or vendor and vendee. The case of the cider-mill fixed in the ground, which was awarded to the executor as against the heir, turned upon a custom. 3 Atk. 14, note 2; 1 H. Bl. 260. Mr. Wilbraham, FIXTURES. 61 vrho argued for the executor and against the remainder-man, (in 3 Atk. 14), and who suc- ceeded, still gave his opinion, when the salt- pan case came before Lord Mansfield, that it would have been different in respect to the heir; and Lord Mansfield expressly adopted his opin- ion. These salt-pans were very slightly fixed with mortar to the floor, and might be remov- ed without injuring the buildings. A steelyard hung in a machine house was considered a fix- ture. Rex V. Inhabitants of St. Nicholas, Glou- cester, Cald. 262. It was fixed for weighing coal and other things brought to market. Lord Mansfield said it must be annexed to the free- hold in the nature of the thing. "What is the house? It is the machine house. They are one entire thing, and are together rated by the common known name which comprehends both: and the principal purpose of the house is for M-eighing. The steelyard is the most valuable part of the house. The house, therefore, ap- plied to this use, may be said to be built for the steelyard, and not the steelyard for the house." One question was whether the whole machine was rateable as real estate, the steel- yard inclusive, for the support of the poor. Messrs. Amos & Ferard, speaking of this case, say, "The machine which had been rated was clearly affixed to the freehold, and the court seem to rely upon that circumstance in deliver- ing their judgment." Amos & F. Fixt. 209. They then advert to another case in Cald. 266. It is Rex V. Hogg. There the sessions rated a building by the name of "the engine house." The sessions stated, at first, that "the engine is not fixed to the premises, but capable of be- ing moved at pleasure." The whole building and machine were assessed at £36, though the building, independent of the machine, was worth only two guineas. The court directed the case to be re-stated. They required the sessions to state whether the engine was worked "with water or horses; whether the house was a dwell- ing-house, or built for the purpose of receiv- ing the engine, and whether it was used for any other purpose; and in what manner the engine was put up in the engine house, and what its size and bulk." The counsel afterwards con- sented to a set of facts; among them, they agreed "that the engine was worked generally with water, biXt frequently by hand; that the building was not a dwelling-house, nor was it erected for the purpose of receiving the engine, but formerly was used for the purpose of turning bobbins, and as a weaver's shop; but is now used for the purpose of carrying on the cotton manu- factory, there being in the same buildingtwo oth- er engines, one of which was used for the pur- pose of carding and the other for tumming cot- ton, which tumming is another process of the same manufactory. All the engines are placed on the floor, and noways annexed or fastened to the same, but may be moved at pleasure, and carried out and worked in any other place, eith- er by means of water or manual labor, and are not adapted to any particular building. The frame in which the engine stands is twelve feet in length, three feet eleven inches in breadth. and two feet nine inches In height; the semi- diameter of the largest cylinder, with a small roller at the top, rising twenty inches above the frame, the engine sinking in the same seventeen inches." Still the difficulty as to annexation remained; for one question was, whether the machine was rateable except as a part of the real property. CaJdecott, in support of the as- sessment, complained that the return was eva- sive in merely saying that the engine was not annexed or fastened to the floor; whereas it might be fastened to the building in some other way. The opposing counsel said it was placed on the floor like a chair. Ashurst, J., said the case was still imperfect; for it is not stated negatively, that this engine, while it is in a state of working, is not in some way or other fixed to the house. It is only stated that it is not fixed to the floor; but it may be fixed to the walls of the building without being fixed to the floor. We can assume no facts on either side; but one should suppose that it must be fastened in some way, otherwise, as it is worked by wa- ter, the weight of the water must displace it; and if so, it is exactly the case of Rex v. In- habitants of St. Nicholas, in Gloucester. Dul- ler, J., said, speaking of the right to the engine as between executor and heir, or tenant and landlord, "If the engine were clearly distinct, it would, in all cases, go to the executor. But here, all being under lease for a term, all would go to the executor. Grose, J., said: "This is an engine house fitted up with an engine, but whether that is fixed or not is uncertain. The engine is evidently a part of the house; for Walmesleyis stated to be lessee of the premises, which comprehend the whole, both house and engine. I therefore consider this as an entire thing." Messrs. Amos & Ferard, in comment- ing upon this case, admit that it is generally considered as deciding that a poor rate may be assessed on mere personal property rented with a building. But, they say, the better opinion seems to be that it cannot; and they seem to rely on what Ashurst, J., said, as showing that the engine was probably considered real estate. The two last cited cases seem to allow that the sUghtest permanent annexation of machin- ery is sufficient to make it a part of the realty; and sustain the reasoning of Weston, J., in Far*- rar v. Stackpole, so far as it maintains that the chain was a fixture, because it was hooked for use as a part of the permanent machinery. He said: "The chain is the last in the parts of the machinery, to which the impelling power is com- municated, to effect the object in view. Its actual location in the succession of parts can make no difference." See, also, the remarks of Amos & F, Fixt. p. 4, note (a) on the case of Davis V. Jones, 2 Barn. & Aid. 165. A later case is somewhat material. Colegrave v. Dias Santos, 2 Barn. & C. 76, was decided in Tr. term, 1823, by the king's bench. 3 Dowl. & R. 255. It arose between the vendor and ven- dee of a mansion house with the lands, called "Downsell Hall," in Essex. A conveyance was executed, and the defendant entered into pos- session. To the house belonged certain arti- 62 WHAT IS REAL PROPERTY. cles which were all taken possession of with it by the vendee, and none of them had been ex- cepted either in the particulars of the sale, which was by auction, or the deed of convey- ance. They consisted chiefly of "bells and bell- pulls, stoves, grates, blinds, shelves, coppers, a water-butt, and other articles of the same kind" (3 Dowl. & R. 255); or, according to 2 Barn. & C: "Stoves, grates, kitchen-ranges, closets, shelves, brewing-coppers, cooling-cop- pers, mash-tubs, locks, bolts, blinds," &c. The plaintiff, the vendor, demanded them all of the defendant, the vendee, by the name of fixtures; and, on the latter refusing to deliver them, brought trover; which it was held would not lie for any of them. It was conceded that some of the articles might be movables. In 2 Barn. & C, Abbott, O. J., said, "three or four trifling articles." What they were is not stated by ei- ther report; but the recovery was denied for the whole, inasmuch as there was a general demand and refusal of the whole as fixtures. Maryatt and Piatt mentioned stoves, bell-pulls, shelves, and water-butts, as movables, none of which were permanently attached to the house, or could be considered as part of it. Bayley, J., asked: "Is that so clear? To whom would such articles pass, the heir or executor?" The counsel submitted they would pass to the exec- utor. Best, J., asked: "Is not Wynne v. Ingleby, 1 Dowl. & R. 247, a case of ranges, ovens, and set-pots, taken by a fi. fa. against the owner of the freehold (see s. c. nom. Winn V. Ingilby, 5 Barn. & Aid. 625), an express de- cision to the contrary? Has the vendor a right to dismantle a house in order to remove such articles?" For this colloquy, see 3 Dowl. & R. 256. I cannot learn from the books that there has been much litigation concerning fix- tures as between vendors and vendees of houses since the decision of Colgrave v. Dias Santos. The rule of that case has lately been held to prevail as between mortgagor and mortgagee. LongstafE v. Meogoe, 2 Adol. & E. 167. Yet the English cases are extremely diflQcult to rec- oncile, especially those which have arisen be- tween heir and executor. See Amos & F. Fixt. p. 151, c. 4, § 2. There is also considerable conflict in the American cases, as may be seen by those which I have cited. The inconsistency appears to have arisen occasionally from not attending to the distinction maintained by the older cases, between the two relations of vendor and ven- dee, and tenant and landlord; though some- times it has also arisen from a difference as to the mode of annexation. In Powell v. Manu- facturing Co., 3 Mason, 459, Fed. Cas. No. 11,- 357, both the New York and Massachusetts cases were cited, to prove that the wheel and gearing of a cotton factory were not to be con- sidered a part of the freehold, in such sense that the widow could have dower of them. Story, J., was driven to say that the carding machine in Gale v. Ward, though attached to the wheel by a leather band, was not strictly a fixture; and that the fastening in Crcsson v. Stout, would not make the machinery so. Yet certainly the wheel, and most, if not all, the gearing mentioned and described in 3 Mason, and Fed. Cas. No. 11,357, might have been as easily removed as many other things attached to the freehold, which have been treated as mova- bles. The case of the cotton gin, (in 1 Bailey, 540) the English steelyard and engine cases cited from Caldecott, and Colgrave v. Dias Santos, with several other English cases, show that a very slight affixing for permanent use is sufficient. The mere hooking of a chain in Farrar v. Stackpole, was sufficient under the circumstances. Why is the key of a door- lock deemed a fixture? Because it makes a part of the permanent machinery used to se- cure the door. Yet it is kept entirely sepa- rate, except when employed in locking and un- locking the door. The mode of annexation must evidently depend on the manner in which the parts of machinery are used. The saws in the saw-mill may be in two sets, one at work, while the other is undergoing repairs, or filing and sharpening; and either may be easily removed without violence to the frame where they be- long; are either to be considered the less fix- tures for these reasons? Gibbons says, if a copper fastened in brick-work have a movable cover, the latter is a fixture; because the cop- per is the principal thing and the latter a mere appendage. Gib. Fixt. 17. The case of Davis V. Jones, 2 Barn. & Aid. 165, has accordingly been thought unexplainable by the principles professedly adopted in the case itself. Certain jibs making part of an entire machine, which was clearly a fixture, were treated as mere per- sonal property. See Amos & F. Fixt. p. 4, note (a). The ancient distinction, however, between ac- tual annexation and total disconnection, is the most certain and practical; and should there- fore be maintained, except where plain author- ity or usage has created exceptions. The rea- soning of Mr. Dane, and of the learned judge in Farrar v. Stackpole, before cited, while it can- not be too extensively applied to modern ma- chinery in subordination to that distinction, does not appear to be sustained by authority, when it seeks to raise a general doctrine of construct- ive fixtures, from the moral adaptation of what is in fact a mere movable, to the carrying on a farm or factory, &c., however essential the movable may be for such purpose. The argu- ment in that shape proves too much. Such adaptation and necessity might be extended even to the use of domestic animals on a farm, and certainly to many implements in a manu- factory which could never be recognized as fix- tures, without utterly confounding the rule by which the rights of the heir or the purchaser have been long governed. The judicial appli- cation of the rule is already sufficiently nice and difficult. As between heir and executor, it was partially altered by 2 Rev. St. (2d Ed.) p. 24, § 6, subd. 4. By this, "things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its sup- port," pass to the executor. And see 3 Rev. St. FIXTURES. 63 «(2d Ed.) pp. 638, 639. This provision certainly indicates anything but a legislative intent to enlarge the rights of freehold. Taken literally it would strip the heir of the wheels, gearing, and all the other machinery fixed in the ordinary way to a mill or manufactory inherited by him. It is certainly contrary to the ancient common law (see 11 Vin. 107, "Executor, Z," pi. 6; Amo3 -& F. Fixt. 133, and cases there cited on to page 138), and seems to derive very questionable countenance from more modem authority. Squire V. Mayer, a short note of which is given in 2 Freem. 246, goes the farthest towards our stat- ute rule; but how very doubtful this and some ■other modern causes of the like tendency are, may be seen by Amos & F. Fixt. p. 151, c. 4, § 2, and cases there cited. See, also, Gib. Fixt. 11, 12. As between devisee and executor, the sug- gestion of Vice-Chancellor Hart, in Lushington V. Sewell, 1 Sim. 435, 480, seems to go beyond any adjudged case in favor of the freehold. He inchned to think that the devise of a West India estate would pas>^ the incidental stock of slaves, cattle, and implements; because such things are essential to render the estate pro- ductive; and, denuded of them, it would be rather a burden than a benefit. It is, I think, obvious, not only from our stat- ute, but from both the English and American cases, that there is a stronger tendency to con- sider fixtures for the purposes of trade as mere personal property, than we find either in regard to those of an agricultural or domestic charac- ter. See Gib. Fixt. 10, 11; Amos & F. Fixt. (Ed. 1830) 138. By several English eases cit- ed in these treatises, the executor was in re- spect to trade fixtures preferred in his claim against the heir, though the doctrine is far from being settled. By several American cases, we have seen that such fixtures were denied to have passed even as between the vendor and vendee of the freehold; though such a rule de- rives no countenance, or certainly very little, from any English authority; and seems to be against the weight of American adjudication. On the whole, I collect from the cases cited, and others, that, as a general rule, in order to come within the operation of a deed conveying the freehold, whether by metes and bounds of a plantation, farm, or lot, &c., or in terms de- noting a mill or factory, &c., nothing of a na- ture personal in itself will pass, unless it be brought within the denomination of a fixture by being in some way permanently, at least habitually, attached to the land or some build- ing upon it. It need not be constantly fasten- ed. It need not be so fixed that detaching will disturb the earth or rend any part of the build- ing. I am not prepared to deny that a machine movable in itself would become a fixture from being connected in its operations by bands, or in any other way, with the permanent machin- ery, though it might be detached, and restored to its ordinary place, as easily as the chain in Farrar v. Stackpole. I think it would be a fixture notwithstanding. But I am unable to discover, from the papers before us, that any of the machines in question before the commis- sioners were even slightly connected with the freehold. For aught I can learn, they were all worked by horses or by hand, having no more respect to any particular part of the build- ing, or its water-wheel, than the ordinary mov- able tools of such an establishment. These would have their common place, and be essen- tial to its business. So a threshing machine and the other implements of the farmer. But it \/ would be a solecism to call them fixtures, where they are not steadily or commonly attached, even by. bands or hooks, to any part of the i-ealty. The word fixtures is derived from the things signitied by it being fastened, or fixed. "It is a maxim of great antiquity, that what- ever is fixed to the realty is thereby made a part of the realty, to which it adheres, and par- takes of all its incidents and proi>erties." Toml. Law Diet. "Fixtures." Hence fixtures are de- fined to be "chattels or articles of a personal nature which have been affixed to the land." Id. "It is an ancient principle of law," says Weston, J., in Farrar v. Stackpole, "that cer- tain things, which, in their nature, are personal property, when attached to the realty, become part of it as fixtures." And see Amos & F. Fixt. p. 1, c. 1. It is not to be denied that there are strong dicta, and perhaps we may add the principle of several adjudicated exceptions, upon which we might, with great plausibility, declare the ma- chines in question, so essential to the purposes of the manufactory, although entirely dissoci- ated with the freehold, a fit subject for enter- ing into the list of constructive fixtures. The general importance of the rule, however, which goes upon corporal annexation, is so great, that more evil will result from frittering it away by exceptions, than can arise from the hardship of adhering to it in particular cases. Nor can we possibly say, as in the case of the steelyard or engine in the cotton manufactory, cited from Caldecott, that the machines in ques- tion must, in the nature of the thing, be annex- ed to the freehold. It appears, by the papers before us, that they have been used with the factory for several years, and have passed with it in conveyances. But the affidavits do not state that they are affixed in any way. They are treated by both parties, for aught I can see, as entirely detached, though the defendant ventmres to express an opinion that some of them constitute a part of the factory itself. He gives no particulars, however, from which we can say they may make a part, any more than if they were so many chairs to sit on. It is true, that this factory seems to have been pretty much dismantled. The principal part of its machinery has been treated as mere movables. Both the defendant and Mr. Smith, one of the commissioners, concur in stating that nothing about the factory was treated as a fixture, except the water-wheel, fulling-mill, dye-kettle, press, and tenter-bars; and Mr. Smith says the factory was impelled by a valu- able water-power. The susoicion would, in- deed, be quite strong, from such facts standing alone, that, at least, some of the important and 64 WHAT IS REAL PROPERTY. valuable machinery excepted, might be brought within the legal notion of fixtures; and yet the defendant himself has not ventured to state, as I can find, that any part of the particular machinery excepted from the report, was in the least dependent for its operation on the water- wheel or other permanent parts of the factory; while Mr. Goodrich, one of the commissioners, says, in his affidavit, that the excepted machin- ery was not affixed to the building or land. There the case is left; not one of the deponent* pointing out any connection whatever. No au- thority cited on the argument, nor any that 1 have seen, goes so far as to say that mere loose and movable machines totally disconnected with, and making no part of the permanent machinery of a factory, can be considered a fix- ture even as between vendor and vendee. We think the motion must be denied with costs, and the report of the commissioners is confirmed. FIXTURES. 65 LASSELL T. REED. (6 Greenl. 222.) Supreme Judicial Court of Maine. 1829. Mr. Crosby, for plaintiff. Mr. Johnson, for defendant. MELLEN, C. J. Upon examination of the lease referred to in the statement of facts, we do not perceive any covenants on the part of Reed which have any direct bearing on the questions submitted for our decision. Nothing is said as to the management of the farm in a husbandlike-manner, or surrendering it at the end of the year in as good order and condition as it was at the commencement of the lease. The lease is also silent on the subject of ma- nure. The same kind of silence or inattention has been the occasion of the numerous deci- sions which are to be found in the books of re- ports between lessors and lessees, mortgagors and mortgagees, and grantors and grantees, or those claiming under them, in relation to the legal character and ownership of certain arti- cles or species of property, connected with or appertaining to the main subject of the convey- ance or contract. A few words, inserted in such instruments, expressive of the meaning of the parties respecting the subject, would have prevented all controversy and doubt. In the absence of all such language, indicating their intention as to the particulars above alluded to, courts of law have been obliged to settle the rights of contending claimants, in some cases according to common understanding and usage; thus window blinds, keys, &c., are considered as part of the real estate (though not strictly speaking fixtures), or rather as so connected with the realty as always to pass with it. In other cases, as between landlord and tenant, the question has been settled upon the princi- ples of general policy and utility; as in the case of "erections for the purpose of carrying on trade, or the more profitable management of a farm by the tenant. It does not appear by the f.icts before us, that there is any general usage, in virtue of which the manure made on the farm by the cattle of the lessee during the term of his lease is considered as belonging to him exclusively, or to the lessor, or to both of them; and we have not been able to find any case directly applicable to the present. There being no usage, nor such decision, nor expressed intention of the parties to guide us, the case is one which must be decided on the principles of policy and the public good; for we do not deem the case cited from Espinasse as applicable. The opinion there given was founded an cer- tain expressions in the lease, by means of which the lessee was considered as a trespasser in re- moving the manure from the farm at the end of the lease. What then does policy and the public good dictate and require in the present case? Be- fore answering the question we would observe that we do not consider the case in any way changed by the fact that a part of the fodder GATES,R.P.-5 was carried on to the farm by the defendant, and a part of the cattle on the farm were those leased; for the purposes of the lease, such fod- der and such cattle must be considered as be- longing to the tenant during the term; and he must be considered as the purchaser of the fod- der growing- on the land, by the contract of lease, as much as if he should purchase it else- where on account of the want of a sufficiency produced by the farm; because a farm not yielding a sufficiency would command the less rent on that account. Numerous cases show that a tenant, at the termination of his lease, may remove erections made at his own ex- pense for the purpose of carrying on his trade; because it is for the public good that such spe- cies of enterprise and industry should be en- couraged; and where the parties are silent on the subject in the lease, the law decides what principle best advances the public interest and accords with good policy, and by that principle settles the question of property. It is our duty to regard and protect the interests of agricul- ture as well as trade. It is obviously true, as a general observation, that manure is essential on a farm; and that such manure is the prod- uct of the stock kept on such farm and relied upon as annually to be appropriated to enrich the farm and render it productive. If at the end of the year, or of the term where the lease is for more than a year, the tenant may law- fully remove the manure which has been ac- cumulated, the consequence will be the impov- ^ erishment of the farm for the ensuing year; or such a consequence must be prevented at an unexpected expense, occasioned by the conduct of the lessee; or else the farm, destitute of manure, must necessarily be leased at a re- duced rent or unprofitably occupied by the own- er. Either alternative is an unreasonable one; and all the above-mentioned consequences may be avoided by denying to the lessee what is contended for in this action. His claim has no foundation in justice or reason, and such a claim the laws of the land cannot sanction. It is true that the defendant did not remove and carry away any manure, except what was lying in heaps, probably adjoining the barn in the usual places; but still if he had a right to re- move those heaps, why had he not a right to travel over the farm and collect and remove as much as he could find scattered upon the ground during the summer and autumn by the cattle in their pastures? In both instances the manure was the product of his cattle; yet who ever claimed to exercise such a right, or pre- tended to have such a claim? The argument proves too much, and leads to impossibilities in practice, as well as to something in theory which bears a strong resemblance to an ab- surdity. We do not mean to be understood by this opinion, as extending the principles on which it is founded to the case of tenants of livery sta- bles in towns, and perhaps some other estate, having no connection with the pursuits of agri- culture; other principles may be applicable in such circumstances; but as to their application 66 WHAT IS REAL PROPERTY. or their extent we mean to give no opinion on this occasion. The case most nearly resembling the present is that of Kittredge v. Woods, 3 N. H. 503, in which it was decided that when land is sold and conveyed, manure lying about a bam upon the land, will pass to the grantee, as an inci- dent to the land, unless there be a reservation of it in the deed. The chief justice observed that the question would generally arise between lessor and lessee, and very plainly intimates an opinion that a lessee, after the expiration of his lease, would have no right to the manure left on the land. On the whole, we are all of opinion that the defence is not sustained, and that the defendant must be called. According to the agreement of the parties, judgment must be entered for $15.00 and costs. FIXTURES. 0/ HARRIS V. SCOVEL. (48 N. W. 173, 85 Mich. 32.) Supreme Court of Michigan. Feb. 27, 1891. Error to circuit court, Wayne county; George S. Hosmer, Judge. Eraser & Gates, for appellant. Cutcheon, Stellwagen & Fleming, for appellee. MORSE, J. This is an action in trover for the conversion of 2,000 fence-rails, commen- ced in justice court, and subsequently appeal- ed to the circuit court of Wayne county. Plaintiff recovered judgment in both courts. The plaintiff, in the partition of real estate, February 6, 1886, became the owner of a piece of land 17 feet wide and 1,601 feet in length. There was then a fence on the land which, before the partition, made a lane. She sold the land to defendant October 3, 18»8. The deed of conveyance was a war- ranty deed in the ordinary form. Having no use for a lane on the premises, about a year before she sold to the defendant the plain- tiff took do^\'n the fence, and piled up the rails on the premises, intending, as she testi- fies, to remove them to a farm that she own- ed in Dearborn. She had drawn 84 posts upon this land, and made some preparation to build a board fence as a division fence be- tween her land and that of others, as, at the time the partition was made, it left the prem- ises allotted to her open and unfenced. She testified, against objection, that at the time she made the agreement with defendant to sell him the land she reserved the rails. There was no reservation in the deed. The rails, prior to being piled up by plaintiff, had been in this lane fence nearly 50 years. Plaintiff had no use for the lane after the partition. Defendant testified that plaintiff, when making the agreement to sell, wanted to reserve the rails, but he would not con- sent to it, and bought the place as it was. The circuit judge submitted the question to the jury, instructing them that the rails piled upon the premises, and not being in any ex- isting fence at the time of the sale, were per- sonal property, and that, unless they found that the plaintiff sold the rails to the defend- ant,— agreed that they should go with the land,— she was entitled to recover. The court was right, and the judgment must be affirm- ed. Rails piled up, under the circumstances that these were, are personal property. TTiere can be no claim that fence-rails are of neces- sity part of the realty unless they are in a fence, and even in such case they may re- main as personalty, if such be the agreement between the parties interested at the time the fence is built. Curtis v. Leasia (Mich.) 44 N. W. 500. The contention is made, that plaintiff is estopped from claiming these rails because, following the description by metes and bounds of the premises in her wan-anty deed to defendant, the deed continues as fol- lows: "Being the same premises which were assigned by said commissioners in partition to Mary E. Harris, * * * together with all and singular the hereditaments and ap- purtenances thereunto belonging," etc. It is argued that she thereby conveyed these rails, because they were a part of the realty when she received it in partition. We do not con- sider this statement in the deed to be, or to have been intended to be, a covenant that the premises were to be conveyed to defendant in exactly the same condition as to fences, timber, and growing crops as they were when she received them. Such a construction would be absurd. If the rails must pass un- der the warranty because of this clause, then she must also account, under such warranty, to the defendant for all the timber standing or crops growing upon the premises, when she received them by partition, which she may have removed since that time and be- fore the sale to defendant. The deed can- not in reason be so construed. Affirmed, with costs. The other justices concurred. 68 WHAT IS REAL PROPERTY. SMITH V. BLAKE. (55 N. W. 978, 96 Mich. 542.) Supreme Court of Michigan. July 26. 1893. Appeal from circiiit court, Cheboygan county, in chancery; C. J. Pailthorp, Judge. Action by Sarah I. Smith against Henry A. Blake to enjoin the removal of certain machinery from a foundry of which plain- tiff is the mortgagee and purchaser at fore- closure sale. From a decree for plaintiff, defendant appeals. Affirmed. George E. Frost, (Oscar Adams, of coun- sel,) for appellant. Henry W. MacArthnr, (George W. Bell, of counsel,) for appellee. HOOKER, C. J. Complainant is the owner of a mortgage upon certain premises in the city of Cheboygan, used as a foundry, ma- chine shop, and blacksmith shop. This mort- gage was made December 14, 1882, for $2,000, with interest at 8 per cent., and was foreclosed by advertisement, the premises being bid in for $2,402.61 by the complain- ant, who (the bill states) wiU become en- titled to a sheriff's deed upon July 3, 1892, at which time her investment will amount to $2,594.82. The bill is filed to restrain the defendant from removing certain machinery upon the premises, viz.: One iron planer; one upright power drill; one shaper; three iron lathes; one wood lathe; one upright engine; one horizontal boiler; one band saw and frame; one rip saw and frame; one fovmdry cupola furnace and blower; the belting, shafting, puUeys, and boxes neces- sary for the running and management of the above machinery. It is contended that the biU must be dis- missed under the demurrer clause in the answer, for the following reasons, viz.: (1) The bill does not allege that the articles named are fijstures; (2) that it fails to show any claim of the property in controversy by the defendant, or threat of removal; (3) that no injimction can properly issue upon information and belief. Had a demurrer been filed, these objections would have been fatal. But the law does not favor the rais- ing of technical questions after hearing upon the merits, and will not permit the dismissal of a bill upon a demurrer clause in the answer unless the btU is fatally defective, and past remedv by amendment. Barton v. Gray, 48 Mich. 164, 12 N. W. Rep. 30; Bauman V. Bean, 57 Mich. 1, 23 N. W. Rep. 451; Lamb v. Jeffrey, 41 Mich. 720, 3 N. W. Rep. 204. The bill impliedly states that these articles are part of the realty. When we read this sixth clause in the light of the whole bill, no other inference can be drawn. The failure to allege threats could have been the subject of amendment in the court below, and probably would have been had any one considered it necessary. Threats were not even proved, but, as defendant's answer claimed this property to be person- alty, not covered by the mortgage, and this question was all that was litigated, we may consider the intention to remove admitted. This brings us to the merits of the case. The proof shows that all of these articles were placed in a building erected many, years ago for a foundiy and machine shop by the owner of both, and, while some of the machines were not fastened to the soil or building, they were heavy, and it was unnecessary. AH were adapted to the busi- ness for which the building was erected. Furthermore, the preponderance of the proof shows that the parties understood that this property was to be covered by the mortgage. We think the decision of the circuit court in holding that the mortgage covered these articles was in accord with the Michigan authorities. A point is made that an injunction can- not properly be granted when the bill fails to allege the requisite facts upon the oath of the complainant That is true where the injunction sought is preliminary, but we sec no reason why relief by injunction cannot be based upon proof presented upon the hearing. In this case, while the injunction should not have been allowed, it was per- mitted to stand tmtil the heailng, and, "suffi- cient equity appearing," it should be per- petuated. Clark V. Young, 2 B. Mon. 57. The record may be remanded, with direc- tions that complainant be allowed to amend her bill, whereupon the decree may stand affirmed. Complainant will recover costs of both courts. The other justices concurred. FIXTURES. 69 MICHIGAN MUT. LIFE INS. CO. v. CRONK. (52 N. W. 1035, 93 Mich. 49.) Supreme Court of Michigan. July 28, 1892. Error to circuit court, St Clair county; Ar- thur L. Canfield, Judge. Replevin by the Michigan Mutual Life In- surance Company against Edward Cronk. Judgment for plaintiff, and defendant brings error. Affirmed Frank Whipple, for appellant Phillips & Jenks, for appellee. MONTGOMERY, J. The defendant, on the 18th day of June, 1887, contracted in writ- ing to purchase of one William L. Jenks the N. W. 1/4 of the S. W. 1/4 of section 19, town- ship 7 N., range 16 E. The contract was in the usual printed form, and contained a cov- enant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or buildings, except for firewood or other- wise, for home use, while clearing off the lands in the ordinary manner. Immediately after 'entering upon the lands he erected a small dwelling house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom the contract had in the mean time been assign- ed by Jenks, terminated the contract, and re- (luired the defendant to surrender possession. The house was a one-story frame house, 20 by 26, and suitable for the purposes of a dwell- ing house to be used upon the land in ques- tion. After tne removal of the house from the premises, it was placed upon a 40 across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaiutiff, and the defendant appeals. Two questions only are presented in ap- pellant's brief. It is first claimed that re- plevin will not lie, because the house had become a fixture upon the land to which it was moved, and was therefore real estate; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party. We think that when this house was ei-ected upon tlie land held imder contract it became a part of the realty, and as such the property of the owner of the land, subject only to the rights of the purchaser therein. Kingsley v. Mc- Farland (Me.) 19 Atl. 442; Milton v. Colby, 5 Mete. (Mass.) 78; Iron Co. v. Black, 70 Me. 473; Tyler, Fixt. 78. It being severed from the land, it became personal property, and replevin would lie imless it became affixed to the realty by the tortious act of the de- fendant in removing it and placing it upon other lands. But we think no such legal ef- fect can be given to the defendant's wrong. The house was moved upon land of a third party. There was no privity of title between the ownership of the house and the owner- ship of the land to which it was removed. The cases cited by defendant of Morrison v. Berry, 42 Mich. 389, 4 N. W. 731, and Wagar v. Briscoe, 38 Mich. 587, do not apply. The house remaining personal property in the wrongful possession of defendant, it follows that no homestead right, which consists in an interest in lands, attached. The judgment is affirmed, with costs. The other justices concurred- 70 WHAT IS KEAL PROPERTY. \ CRAIG T. LESLIE. (3 Wheat. 563-576.) Supreme Court of the United States. 1818. Robert Craig's will contained the follow- ing clause: "I give and bequeath to my brother, Thomas Craig, of Baith parish, Ayr- shire, Scotland, all the proceeds of my es- tate, both real and personal, which I have herein directed to be sold, to be remitted to him, according as the payments are made." Thomas Craig being an alien, the question was, could he take the proceeds of this land, which had been devised to one Leslie, in ti-ust, the proceeds from the sale of which were to be paid to him? Mr. Justice WASHINCTON delivered the opinion of the court. The incapacity of an alien to take, and to hold beneficially, a le- gal or equitable estate in real property, is not disputed by the counsel for the plain- tiff; and it is admitted by the counsel for the state of Virginia, that this incapacity does not extend to personal estate. The on- ly inquiry, then, which this court has to make is, whether the above clause in the will of Robert Craig is to be construed, un- der all the circumstances of this case, as a bequest to Thomas Craig of personal prop- erty, or as a devise of the land itself. Were this a new question, it would seem extremely difficult to raise a doubt respect- ing it. The common sense of mankind would determine, that a devise of money, the pro- ceeds of land directed to be sold, is a devise of money, notwithstanding it is to arise out of land; and that a devise of land, which a testator by his will directs to be purchased, will pass an interest in the land itself, with- out regard to the character of the fund out of which the purchase is to be made. 1 The settled doctrine of the courts of equi- ty corresponds with this obvious construc- tion of wills, as well as of other instruments, whereby land is directed to be turned into money, or money into land, for the benefit of those for whose use the conversion is in- tended to be made. In the case of Fletcher V. Ashburner, 1 Brown, Ch. 497, the master of the rolls says, that "nothing is better es- tablished than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turn- ed into money, are to be considered as that species of property into which they are di- rected to be converted, and this, in what- ever manner the direction is given." He adds, "the owner of the fund, or the con- tracting parties, may make land money or money land. The cases establish this rule universally." This declaration is w-ell wai-- ranted by the cases to which the master of 1 Equity considers land, directed to be sold i and converted into money, as money; and mon- ey directed to be employed in the purchase of land, as land. the rolls refers, as well as by many others. See Doughty v. Bull, 2 P. Wms. 320; Yates V. Compton, Id. 30S; Trelawney v. Booth, 2 Atk. 3U7. The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, considers things di- rected or agreed to be done, as having been actually performed, where nothing has in- tervened which ought to prevent a perform- "^auce. This qualification of the more con- cise and general rule, that equity considers that to be done which is agreed to be done, will comprehend the cases which come un- der this head of equity. 2 Thus, where the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a court of equity will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take the money or the land, if he elect to do so before the con- version has actually been made; and .this election he may make, as well by acts or declarations, clearly indicating a determina- tion to that effect, as by application to a court of equity. It is this election, and not the mere right to make it, which changes the character of the estate so as to make it real or personal, at the will of the party en- titled to the beneficial interest. If this election be not made in time to stamp the property with a character dif- ferent from that which the will or other in- strument gives it, the latter accompanies it, with all its legal consequences, into the hands of those entitled to it in that char- acter. 3So that in case of the death of the cestui que trust, without having determined his election, the property will pass to his heirs or personal representatives, in the same manner as it would have done had the trust been executed, and the conversion actually made in his lifetime. In the case of Kirkman v. Milles, 13 Ves. 338, which was a devise of real estate to trustees upon trust to sell, and the moneys arising as w'ell as the rents and profits till the sale, to be equally divided between the testator's three daughters, A. B. and C The estate was, upon the death of A. B. and C, considered and treated as personal property, notwithstanding the cestui que trusts, after the death of the testator, had entered upon. 2 Where the whole beneficial interest in the land in one case, or in the money in the other, belongs to the person for whose use it is given, a court of equity will permit the cestui que trust to take the money or land at his election, if he elect before the conversion is made. 3 But if the cestui que trust die, without hay- ing determined his election, the property will pass to his heirs or personal representatives, in the same manner as it would have done if the conversion had been made, and the trust exe- cuted in his lifetime. EQUITABLE CONVERSION. 71 and occupied the land for about two years prior to tlieir deaths; but no steps bad been taken by them, or by the trustees, to sell, nor had any requisition to that effect been made by the former to the latter. The mas- ter of the rolls was of opinion, that the oc- cupation of the land for two years was too short to presume an election. He adds: "The opinion of Lord Rosslyn, that proper- ty was to be taken as it happened to be at the death of the party from whom the rep- resentative claims, bad been much doubted by Ix)rd Eldon, who held that without some act, it must be considered as being in the state in which it ought to be; and that Lord Rosslyn's rule was new, and not according to the prior cases." The same doctrine is laid down and main- tained in the case of Edwards v. Countess of WarAvick, 2 P. Wms. 171, which was a covenant on marriage to invest £10,000, part of the lady's fortune, in the purchase of land in fee, to be settled on the husband for life, remainder to bis first and every other son in tail male, remainder to the husband in fee. The only son of this marriage having died without issue, and intestate, and the investment of the money not having been made during his life, the chancellor decided that the money passed to the heir at law; that it was in the election of the son to have made this money, or to have disposed of it as such, and that, therefore, even his parol disposition of it would have been re- garded; but that something to determine the election must be done. 4 This doctrine, so well established by the cases which have been referred to, and by many others which it is unnecessary to men- tion, seems to be conclusive upon the ques- tion which this court is called upon to de- cide, and would render any farther investi- gation of it useless, were it not for the case of Roper V. Radcliffe, which was cited, and mainly relied upon, by the counsel for the state of Virginia. The short statement of that case is as fel- lows: John Roper conveyed all bis lands to trustees and their heirs, in trust, to sell the same, and out of the proceeds, and of the rents and profits till sale, to pay certain debts, and the overplus or the money to be paid as he, the said John Roper, by his will or otherwise, should appoint, and for want of such appointment, for the benefit of the said John Roper, and his heirs. By his will reciting the said deed, and the power re- served to him in the surplus of the said real estate, be bequeathed several pecuniary leg- acies, and then gave the residue of bis real and personal estate to William Con- stable and Thomas Radcliffe, and two others, and to their heirs. By a codicil to this will, be bequeathed other pecuniary legacies; and the remainder, whether in lands or personal 4 The case of Roper v. Radcliffe, 9 Mod. 1G7, examined. estate, he gave to the said W. C. and T. R. Upon a bill filed by W. C. and T. R. against the heir at law of John Roper, and the oth- er trustees, praying to have the trust exe- cuted, and the residue of the money arising from the sale of the lands to be paid over to them; the heir at law opposed the execu- tion of the trust, and claimed the land as a resulting trust, upon the ground of the in- capacity of Constable and Radcliffe to take, they being papists. The decree of the court of chancery, which was in favour of the papists, was, upon appeal to the bouse of lords, reversed, and the title of the heir at law sustained; six judges against five, be- ing in bis favour. Without stating at large the opinion upon which the reversal took place, this court will proceed, 1st. To examine the general prin- ciples laid down in that opinion; and then, 2d. The case itself, so far as it has been pressed upon us as an authority to rule the question before the court. In performing the first part of this under- taking, it will not be necessary to question any one of the premises laid down in that opinion. They are, 1. That land devised to trustees, to sell for payment of debts and legacies, is to be deemed as money. This is the general doctrine established by all the cases referred to in the preceding part of this opinion, s 2. That the heir at law has a resulting ti-ust in such land, so far as it is of value, after the debts and legacies are paid, and that he may come into equity and restrain the trustee from selling more than is necessary to pay the debt and legacies; or he may offer to pay them himself, and pray to have a conveyance of the part of the land not sold in the first case, and the whole in the latter, which property will, in either case, be land, and not money. This right to call for a conveyance is very correctly styled a privilege, and it is one which a court of equity will never refuse, unless there are strong reasons for refusing it. The whole of this doctrine proceeds upon a prin- ciple which is incontrovertible, that where the testator merely directs the real estate to be converted into money, for the purposes directed in bis will, so much of the estate, or the money arising from it, as is not ef- fectually disposed of by the will, (whether it arise from some omission or defect in the will itself, or from any subsequent accident, which prevents the devise from taking ef- fect,) results to the heir at law, as the old 6 Land, devised to trustees, to sell for pay- ment of debts and legacies, is to be deemed as money. The heir at law has a resulting trust in such lands, after the debts and lojracies are paid, and may come into equity and restrain the trustee from selling more than sufficient to pay them, or may offer to pay them himself, and pray a conveyance of the part of the land not sold in the first case, and the wholo in the latter, which property in either case will be land, and not money. WHAT IS REAL PROPERTY. use not disposed of. Such was the case of Cruse V. Barley, 3 P. Wms. 20, where the testator having two sons, A. and B., and three daughters, devised his lands to be sold to pay his debts, &c., and as to the moneys arising by the sale, after debts paid, gave £200 to A. the eldest son, at the age of 21, and the residue to his four younger children. A. died before the age of 21, in consequence of which the bequest to him failed to take effect. Tlie court decided that the £200 should be considered as land to descend to the heir at law of the testator, because it was in effect the same as if so much land as was of the value of £200 was not directed to be sold, but was suffered to descend. The case of Ackroyd v. Smithson, 1 Brown, Ch. 503, is one of the same kind, and estab- lishes the same principle. So, likewise, a money provision under a marriage contract, to arise out of land, Avhich did not take ef- fect, on account of the death of the party for whose benefit it was intended, before the time prescribed, resulted as money to the grantor, so as to pass under a residuary clause in his will. Hewitt v. Wright, 1 Brown, Ch. Cas. 8G. 6 But even in cases of resulting trusts, for the benefit of the heir at law, it is set- tled that if the intent of the testator ap- pears to have been to stamp upon the pro- ceeds of the land described to be sold, the quality of personalty, not only to subserve the particular purposes of the will, but to all intents, the claim of the heir at law to a resulting trust is defeated, and the estate is considered to be personal. This was de- cided in the case of Yates v. Compton, 2 P. Wms. 308, in which the chancellor says, that the intention of the will was to give away all from the heir, and to turn the land into personal estate, and that that was to be taken as it was at the testator's death, and ought not to be altered by any subsequent accident, and decreed the heir to join in the sale of the land, and the money arising there- from to be paid over as personal estate to the representatives of the annuitant, and to those of the residuary legatee. In the case of Fletcher v. Ashburner, before referred to, the suit was brought by the heir at law of the testator, against the personal representa- tives and the trustees claiming the estate upon the ground of a resulting trust. But the court decreed the property, as money, to the personal representatives of him to whom the beneficial interest in the money was be- queathed, and the master of the rolls ob- serves, that the case of Emblyn v. Freeman, and Cruse v. Barley, are those where real estate being directed to be sold, some part of the disposition has failed, and the thing devised has not accrued to the representa- tive, or devisee, by which something has re- sulted to the heir at law. It is evident, therefore, from a view of the above cases, that the title of the heir to a resulting trust can never arise, except when something is left undisposed of, either by some defect in the will, or by some subse- quent lapse, which prevents the devise from taking effect; and not even then, if it ap- pears that the intention of the testator was to change the nature of the estate from land to money, absolutely and entirely, and not merely to sei-ve the purposes of the will. But the ground upon which the title of the heir rests is, that whatever is not disposed remains to him, and partakes of the old use, as if it had not been directed to be sold. The third proposition laid down in the case of Roper v. Radcliffe, 9 Mod. 1G7, is, that equity will extend the same privilege to the residuai"y legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the trustees from selling more than is necessary to pay the debts and lega- cies. 7 This has, in effect, been admitted in the preceding part of this opinion; because, if the cestui que trust of the whole benefi- cial interest in the money to arise from the sale of the land, may claim this privilege, it follows, necessarily, that the residuaiy legatee may, because he is, in effect, the beneficial owner of the whole, charged with the debts and legacies, from which he will be permitted to discharge it, by paying the debts and legacies, or may claim so much of the real estate as may not be necessary for that purpose. 8 But the court cannot accede to the con- clusion, which, in Roper v. Radcliffe, is de- duced from the establishment of the above principles. That conclusion is, that in re- spect to the residuary legatee, such a devise shall be deemed as land in equity, though in respect to the creditors and specific legatees it is deemed as money. It is admitted, with this qualification, that if the residuary lega- tee thinks proper to avail himself of the privilege of taking it as land, by making an election in his life time, the property will then assume the character of land. But if he does not make this election, the property retains the character of personalty to every intent and purpose. The eases before cited I 6 But if the intent of the testator appears to have boen to stamp upon the proceeds of the land directed to be sold, the quality of person- altv, not only for the particular purposes of the will, but to all intents, the claim of the heir at law to a resulting trust is defeated, and the es- tate is considered to be personal. 7 Equity will extend the same privilege to the residuary legatee which is allowed to the heir, to pay the debts and legacies, and call for a conveyance of the real estate, or to restrain the trustees from selling more than is necessary to pay the debts and legacies. 8 The conclusion — which, in Roper v. Rad- cliffe, is deduced from the above principles, that in respect to the residuary legatee such a devise shall be considered as land in equity, though in respect to the creditors and specific legatees, it is deemed as money— denied. EQUITABLE CONVERSION. 73 «eem to the court to be conclusive upon this point; and none were referred to, or liave come under tlie view of the court, which sanction the conclusion made in the unquali- fied terms used in the case of Roper v. Rad- cJiife. As to the idea that the character of the es- tate is affected bj- this right of election, whether the right be claimed or not, it ap- pears to be as repugnant to reason, as we think it has been shown to be, to principle and authorities. Before any thing can be made of the proposition, it should be shown that this right of privilege of election is so indissolubly united Avith the devise, as to constitute a part of it, and that it may be exercised in all cases, and under all circum- stances. This was, indeed, contended for with great ingenuity and abilities by the counsel for the state of Virginia, but it was not proved to the satisfaction of the court. It certainly is not true, that equity will €«tend this privilege in all cases to the cestui que trust. It will be refused if he be an in- fant. In the case of Seeley v. Jago, 1 P. Wms. 389, where money was devised to be laid out in land in fee, to be settled on A. B. and C, and their heirs, equally to be di- vided: On the death A., his infant heir, together with B. and C, filed their bill, <'laiming to have the money, which was de- creed accordingly as to B. and C; but the share of the infant was ordered to be put out for his benefit, and the reason assigned was, that he was incapable of mailing an election, and that such election, if permitted, would, in case of his death, be prejudicial to his heir. In the case of Foone v. Blount, Cowp. 4*37, Lord Mansfield, who is compelled to aclinowledge the authority of Roper v. Rad- cliffe in parallel cases, combats the reasoning of Cliief .Justice Parker upon this doctrine of election, with irresistible force. He sug- gests, as the true answer to it, that though in a variety of cases this right exists, yet it was inapplicable to the case of a person who was disabled by law from taking land, and that therefore a court of equity would, in such a case, decree that he should take the property as money. This case of Walker v. Denue, 2 Ves. Jr 170, seems to apply with great force to this part of our subject. The testator directed money to be laid out in lands, tenements, and hereditaments, or on long terms, with limita- tions applicable to real estate. The money not having been laid out, the crown, on fail- ure of heirs, claimed the money as land. It was decided that the crown had no equity against the next of kin to have the money laid out in real estate in order to claim it by escheat. It was added that the devisees, on becoming absolutely entitled, have the op- tion given by the will; and a deed of ap- pointment by one of the cestui que trusts, though a feme covert, was held a sufficient in- •dication of her intention that it should con- ; tinue personal against her heir claiming it as j ineffectually disposed of for want of her ex- amination. This case is peculiarly strong, from the circumstance, that the election is embodied in the devise itself; but this was not enough, because the crown had no equity to force an election to be made for the pur- pose of producing an escheat. E(iuity would surely proceed contrary to its regular course, and the principles which universally govern it, to allow the right of election where it is desired, and can be law- fully made, and yet refuse to decree the money upon the application of the alien, upon no other reason, but because, by law, he is incapable to hold the land: In short, to consider him in the same situation as if he had made an election, which would have been refused had he asked for a conveyance. The more just and correct rule would seem to be, that where the cestui que trust is in- capable to take or to hold the land beneficial- 1}', the right of election does not exist, and consequently, that the property is to be con- sidered as being of that species into which it is directed to be converted. Having made these observations upon the principles laid down in the case of Roper v. Radcliffe, and upon the arguments urged at the bar in support of them, very few words will suffice to show that, as an authority, it is inapplicable to this case. 9 The incapacities of a papist under the English statute of 11 & 12 Wm. III., c. 4, and of an alien at common law, are extremely dissimilar. The former is incapable to take by purchase, any lands, or profits out of lands; and all estates, terms, and any other interests or profits whatsoever out of lands, to be made, suffered, or done, to, or for the use of such person, or upon any trust for him, or to, or for the benefit, or relief of any sucli person, are declared by the statute to be utterly void. Thus, it appears that he cannot even take. His incapacity is not confined to land, but to any profit, interest, benefit, or relief, in or out of it. He is not only disabled from tak- ing or having the benefit of any such inter- est, but the will or deed itself, which at- tempts to pass it, is void. In Roper v. Rad- cliffe, it was strongly insisted, tliat the money given to the papist, which was to be the pro- ceeds of the land, was a profit or interest out of the land. If this be so, (and it is not material in this case to affirm or deny that position,) then the will of John Roper in relation to the be'quest to the two papists, was void under the statute; and if so, the right of the heir at law of the testator, to the residue, as a resulting ti'ust, was incon- testable. The cases above cited have fully established that principle. In that case, too, the rents and profits, till the sale, would have belonged to the papists, if they were capable 9 Tho ease of Roper v. Radcliffe distinguished from the present case. 74 WHAT IS REAL PROPERTY. of taking, which brought the case still more strongly Avithin the statute; and this was much relied on, not only in reasoning upon the words, but the policy of the statute. 10 Now, what is the situation of an alien? He cannot only take an interest in laud, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until office found, and he is not accountable for the rents and profits previously received, n In this case the will being valid, and the alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have the land by escheat as if the alien had, or could upon the principles of a court of equity, have elected to take the land instead of the money. The points of difference be- tween the two cases are so striking that it would be a waste of time to notice them in detail. It may be further observed, that the case of Roper v. Radcliffe has never, in England, been applied to the case of aliens; that its authority has been submitted to with re- luctance, and is strictly confined in its ap- plication to cases precisely parallel to it. Lord Mansfield in the case of Foone v. Blotint, speaks of it with marked disappro- bation; and we know, that had Lord Trevor 10 An alien may take, by purchase, a freehold, or other interest in land, and may hold it against all the world except the king; and even against him until office found: and is not ac- countable for the rents and profits previously received. 11 Vide 3 Wheat. 12. Jackson ex dem. State of New York v. Clarke, note c. been present, and declared the opinion he had before entertained, the judges would have been equally divided. The case of the Attorney General and Lord Weymouth, Amb. 20, was also pressed upon the court, as strongly supporting that of Roper V. Radcliffe, and as bearing upon the present case. The first of these propositions might be admitted; although it is certain that the mortmain act, upon which that case was decided, is even stronger in its expression than the statute against papists, and the chancellor so considers it; for he says, whether the sni-plus be considered as money or land, it is just the same thing, the statute making void all charges and encumbrances on land, for the benefit of a charity. But if this case were, in all respects, the same as Roper v. Radcliffe, the observations which have been made upon the latter would all apply to it. It may be remarked, however, that in this case, the chancellor avoids expressing any opinion upon the ques- tion, whether the money to arise from the sale of the land, was to be taken as personal- ty or land; and, although he mentions the case of Roper v. Radcliffe, he adds, that he doe.s not depend upon it, as it is immaterial wliether the surplus was to be considered as land or money under the mortmain act. Upon the whole we are unanimously of opinion, that the legacy given to Thomas Craig. In the will of Robert Craig, is to be considered as a bequest of personal estate, which he is capable of taking for his owa benefit. Cextificate accordingly. EQUITABLE CONYERSIOX. BOLTON et al. v. MYERS et al. (40 N. E. 737, 146 N. Y. 257.) Court of Appeals of New York. May 21, 1895. Appeal from supreme court, general term, Second department. Accounting by Henry B. Bolton and Thom- as Bolton, as executors of the will of Ann Bolton, deceased. From a judgment of the general term (31 N. Y. Supp. 588) reversing a judgment of the surrogate denying the exec- utors the right to reimburse themselves, out of the proceeds of a sale of the land, for debts of the testator paid by them out of their own funds, Sarah L. Myers and others appeal. Atiirmed. James R. Marvin, for appellants. Alex. Thain, for respondents. O'BRIEN, J. In this proceeding it was held by the learned surrogate that the execu- tors were not entitled to reimburse them- selves out of the proceeds of the sale of real estate in their hands for the amount paid by them in discharge of the testator's debts over and above the sum realized for that purpose from the personal estate. The testator died September 27, 1882, and letters were grant- ed to the executors in November following. In November, 1892, the executors accounted, and by the decree then entered it was ad- judged that the estate was indebted to the executors on account of debts of the testator paid by them in default of personal assets in the sum of about $4,000. Subsequently there came to the hands of the executors a large sum received from the sale of certain real es- tate of the testator, and this accounting was in regard to that fund, and the executors claim that they should be allowed to retain sufficient of it to pay the debt due to them from the estate. The provisions of the will are as follows: After paying debts, then a bequest of certain household furniture to her daughter. Then a devise to her son of the house in which he lived. The executors were then directed to invest $1,500, the interest up- on which was to be paid to a church, and to expend a reasonable sum in erecting a monu- ment and putting the family cemetery in or- der. Then follows the power of sale in the following terms: "And I also give power and autlujrity to my executors to sell any and all of my real estate, either at public or private sale, whenever, in their judgment, they may deem for the best interest of my estate, and to give good and sufficient deed or deeds of conveyance for the same." The residue of the estate was then bequeathed to her chil- dren. In the courts below, the right of the executors to enforce their claim in this pro- ceeding is made to depend upon the scope and character of this power. It has been assum- ed in both courts that, unless this can be re- garded as a power to the executors to sell real estate for the payment of debts, then the proceeds of the sale must still be regard- ed as real estate, and distributed to the dev- isees or persons who take the real estate un- der the will. The learned general term, re- versing the surrogate, was of the opinion that it should be treated as a power of sale for the purpose of paying debts, upon the doctrine of the Gantert Case, 13G N. Y. 109, 32 N. E. 551. If it was necessary to establish that proposition, there would be great difficulty in sustaining the jud;nuent. But we think it is not material to determine the scope and the character of the power. It was certainly a general power, and conferred authority up- on the executors to convey the land and re- ceive the proceeds. That power has been ac- tually executed. They have conveyed the land, have received the purchase price, and the same is in their hands. There is no oth- er way in which creditors can now reach the land except by proceedings for an account- ing. The realty has in fact been converted into personalty, and is in the hands of the executors for all purposes of administration. Before distributing this fund to the residuary devisees, they may pay the balance of the tes- tator's debts, and, what is the same thing, reimburse themselves for the debts they have paid in excess of the personal estate that came to their hands. Erwin v. Loper, 43 N. Y. 521; Hood v. Hood, 85 N. Y. 5G1; Glacius v. Fogel, 88 N. Y. 434; In re Powers. 124 N. Y. 361, 26 N. E. 940; In re Gantert, 136 N. Y. 109, 32 N. E. 551; Cahill v. Russell, 140 N. Y. 402, 35 N. E. 664. In this view we think the judgment of the general term was right, and should be affirmed, with costs. All con- cur. Judgment affirmed. 76 ESTATES IN REAL PROPERTY. ADAMS V. ROSS.i (30 N. J. Law, 505.) Court of Errors and Appeals of New Jersey. June Term, 1860. Error to supreme court. A. O. Zabriskie, for plaintiff in error. J. P. Bradley, for defendant in error. WHELPLEY, J. This writ of error brings up for review the judgment of the supreme court, giving a construction to a deed, dated the 9th of September, 1854, between Anna V. Traphagen, of the first part, and Catharine Ann V. B. Adams, wife of Alonzo Whitney Adams, of the second part, by which the grantor, in consideration of natural love and affection and of one dollar, conveyed to the grantee the prem- ises in the deed described. The operative words are "grant, bargain, sell, alien, remise, release, convey, and confirm unto the said party of the second part, for and during her natural life, and at her death to her children which may be be- gotten of her present husband; to have and to hold the above described premises unto the said party of the second part for and during her nat- ural life, and at her death to her children which may be begotten of her present husband, Alon- zo W. Adams." The deed contains covenants of seizin, for qui- et enjoyment, against encumbrances, for fur- ther assurance and of warranty. These covenants are made by the grantor for herself and her heirs with the party of the sec- ond part, her heirs and assigns. Mrs. Adams, at the date of conveyance to her, was a minor. On the 12th October, 1855, she, with her husband, executed a mortgage to secure the payment of $6000, in one year from date, upon the premises conveyed to her. She was then nineteen. The mortgage was to Ross, the applicant in the supreme court. The Erie Railway Company, under the pro- visions of an act of the legislature, took a part of the land in question, and hold it in fee simple. The value of the land taken has been ascertained at ^3061; that is now in the su- preme court, to be awarded to the parties enti- tled to it, and who they are must depend upon the true construction of the deed. What, then, are the rights of Mrs. Adams, her husband and children, one having been born of the marriage since the conveyance; and what, if any, are the rights of Ross, the mort- gagee, to the money in court. The supreme court held, that the estate grant- ed by the deed was an estate in fee tail special m Catharine Adams and the heirs of her body by her present husband; that her husband was entitled to curtesy; that the mortgage to Ross on the interest of Mrs. Adams was void as to her, but was a lien upon the estate of her hus- band, in case he survived her. This decision was reached by interpreting the word "children," in the deed, as equivalent to 1 Order of the court omitted. "heirs," calling in the covenants in aid of that interpretation, as throwing light upon what the court called the intention of the grantor. The supreme court was right in holding the first estate conveyed to Mrs. Adams, not a fee simple; the express limitation of the estate to her during life, and after her death to her children, forbade any other conclusion. The covenant, warranting the land to her and her heirs gen- eral, cannot enlarge the estate, nor pass by es- toppel a greater estate than that expressly con- veyed. A party cannot be estopped by a deed, or the covenants contained in it, from setting up that a fee simple did not pass, when the deed expressly shows on its face exactly what estate did pass, and that it was less than a fee. Rawle, Gov. 420; Blanchard v. Brook, 12 Pick. 67; 2 Co. Litt. 385b. Lord Coke expressly says: But a warranty of itself cannot enlarge an estate; as if the lessor by deed release to his lessee for life, and warrant the land to the lessee and his heirs; yet doth not this enlarge his estate. Justice Vredenburgh, in his opinion, admits this to be law. He says, although the cove- nants cannot be used to enlarge the estate, yet they may be used to show in what sense the words in the conveying part of the deed were used. What is that but enlarging what would otherwise be their meaning? If without ex- planation they are insufficient to pass the es- tate, does not the explanation enlarge their op- eration ? The learned judge, in his elaborate opinion, says: From these covenants, it is demonstrat- ed that, by the terms "children by her present husband," the grantor intended the heirs of her body by her present husband. It follows, from this argument, that although the conveying part of the deed may not contain sufficient to convey the estate as a fee simple, for example, yet that if the covenants show an intent to pass a fee simple, it will pass. The argument is, that the words of convey- ance and covenant must be construed together. If the covenants look to the larger estate, that will pass upon the intent indicated. Children are said to be equivalent to heirs, because she warranted to her heirs; and the heirs are said to be not heirs general, because she called them children. The inconsistency between the conveyance and covenant shows mistake in the one or the oth- er. The safest rule of construction is that pro- pounded by the supreme court; that the quan- tity of the estate conveyed must depend upon the operative words of conveyance, and not up- on the covenants defending the quantity of es- tate conveyed. Starting with that premise, it seems difficult, nay impossible, to reach the conclusion, that the covenants are to be looked to in the inter- pretation of the conveyance, as such. The covenants only attach to the estate grant- ed, or purporting to be granted. If a life es- tate only be expressly conveyed, the covenantor warrants nothing more. The conveyance is the principal, the covenant the incident. If they FEE SIMPLE AND FEE TAIL. 77 do not expressly enlarge the estate passed by the operative words of the deed, I cannot per- ceive upon what sound principle of construction they can have that effect indirectly by throw- ing light on the intention of the grantor. In the construction of a deed of conveyance the question is, not what estate did the grantor in- tend to pass, but what did he pass by apt and proper words. If he has failed to use the prop- er words, no expression of intent, no amount of recital, showing the intention, will supply the omission, although it may preserve the rights of the party under the covenant for further assur- ance or in equity upon a bill to reform the deed. The object of the covenajits o^ a deed is to defend the estate passed, not to enlarge or / narrow it. To adopt, as a settled rule of in- terpretation, that deeds are to be construed like wills, according to the presumed intent of the parties making them, to be deduced from an examination of the whole instrument, would be dangerous, and, in my judgment, in the last degree inexpedient. It is far better to adhere to the rigid rules established and firm- ly settled for centuries, than to open so wide a door for litigation, and render uncertain the titles to lands. The experience of courts in the construction of wills, the difEculty in get- ting at the real intent of the party, where im- perfectly expressed, or where he had none; the doubt which always exists in such cases, whether the court has spelt out what the party meant, all combine to show the importance of adhering to the rule, that the grantor of a deed must express his intent by the use of the nec- essary words of conveyances, as they have been settled long ago by judicial decision and the writings of the sages of the law. Upon this point, it is not safe to yield an inch; if that is done, the rule is effectually broken down. Where shall we stop if we start here? Littleton says: Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever. For if a man would purchase lands or tenements in fee simple, it behooveth him to have these words in his pur- chase: "to have and hold to him and his heirs." For these words, "his heirs," make the estate of inheritance. For if a man purchase lands by these words, "to have and to hold to him forever." or by these words, "to have and to hold to him and his assigns forever," in these two cases he hath but an estate for life, for that there lack these words, "his heirs," which words only make an estate of inheritance in all feoffments and grants. "These words, 'his heirs,' doe not only extend to his immediate heirs, but to his heirs remote and most remote, born and to be born, sub quibus voeabulis 'hreredibus suis' omnes haere- des, propinqui comprehenduntur, et remoti, nati et naseituri, and hajredum appellatione veniunt, haeredes haeredum in infinitum. And the reason wherefore the law is so precise to prescribe certine words to create an estate of inheritance, is for avoiding of uncertainty, the mother of contention and confusion." Co Lift, la, Sb; 1 Shep. Touch. 101; Com. Dig. tit. "Estate," A, 2; Prest. Est. 1, 2, 4, 5; 4 Cruise, Dig. tit. 32, c. 21, cl. 1. There are but two or three exceptions to this rule. The cases of sole and aggregate corpo- rations, and where words of reference are used "as fully as he enfeoffed me." A gift in frank marriage, &c., which are to be found stated in the authorities already cited. These exceptions create no confusion; they axe as clearly defined and limited as the rule itself. The word "heirs" is as necessary in the crea- tion of an estate tail as a fee simple. 1 Co. Litt. 20a; 4 Cruise, Dig. tit 32, c. 22, § 11; 4 Kent. Comm. 6; 2 Bl. Comm. 114. This author sets this doctrine in clear light. He says: As the word "heirs" is necessary to create a fee, so, in further limitation of the strictness of feodal donation, the word "body," or some other word of procreation, is neces- sary to make it a fee taU. If, therefore, the words of inheritance or words of procreation be omitted, albeit the other words are inserted in the grant, this will not make an estate tail, as if the grant be to a man, and his issue of her body, to a man and his seed, to a man and his children or offspring, all these are only estates for life, there wanting the words of inheritance. The rule in Shelley's Case, that when the ancestor, by am children to the same estate. The deed operated as a covenant to stand seized. The proper and technical words of such conveyance are, "stand seized to the use of," &c., but any other words will have the same effect, if it appear to have been the in- tention of the parties to use them for that pur- pose. The words "bargain and sell, give, grant, and confirm," have been allowed so to operate. 4 Cruise, Dig. tit. 32, c. 10, §§ 1, 2. By such a covenant, an estate may be limited to a person not in esse, if within the considera- tions of blood or marriage. Fearne, Rem. 288; 1 Rep. 154, 2; 1 Prest. Est 172, 176; Doe v. Martin. 4 Term R, 30. This deed, on the face of it, expresses the considerations of natural love and affection, as well as the money consideration of one dollar. It follows, from these considerations, that Adams is not entitled to curtesy in the lands on surviving his wife. The mortgage to Ross created no valid charge on the estate against Mrs. Adams, she being a minor when it was executed. Mrs. Adams' interest in the land was subject to the provisions of the act for the better se- curing the property of married women, passed March 25th, 1852; the deed to her was after this act passed. This was clearly a gift or grant, within the mea.ning of the act. The legislature did not intend to limit the benefits of the act to prop- erty conveyed by a deed operating as a gift or grant; all the ordinary modes of acquiring property by deed were intended by the use of the terms gift, grant. The reasoning of Jus- tice Vredenburgh upon this point is conclusive. Upon the determination of the respective life estates, the land reverts to Miss Traphagen. The judgment of the supreme court must be reversed. The money in couTt must be in- vested for the benefit of Mrs. Adams for life, and after her death for the benefit of the sur- viving children of the marriage in equal shares, during their respective lives, and at thedr deaths, respectively, their several shares must be paid to Miss Traphagen, or if she be then dead, to her heirs or devisees. COMBS, GREEN, RISLEY, VAN DYKE, WOOD, OORNELISON, HAINES, and SWAIN, JJ., concurred. FEE SIMPLE AND FEE TAIL. 79 BROWN V. ADDISON GILBERT HOSPITAL. (29 N. E. 625, 155 :Mass. 323.) Supreme Judicial Ck)urt of Massachusetts. Essex. Jan. 7, 1892. Appeal from superior court, Essex county. Bill by Eben T. Brown against the Addison Gilbert Hospital, for specific performance of an agreement for the sale of certain real es- tate. Plaintiff derived his title to the lands in question from the fifth clause of the will of Jonathan Brown, which is as follows: "I give and devise to my grandson Eben Brown, the son of my son Jonathan, the farm as hereinbefore described, subject to the life-es- tate therein given to my son Jonathan, and subject, also, to the limitation that, if said Eben die without issue, then his devise is to go to other son or sons of my son Jonathan, if any there should be, and, if not, to the heirs of my son Jonathan, forever." Defend- ant avers that the plaintiff cannot convey a good and clear title to said land, as his estate in said land is a fee determinable in the event of his dying leaving no issue living at his de- cease, with an executory devise over to oth- ers. Complainant obtained a decree, and de- fendant appeals. Affirmed! C. A. Russell, for plaintiff. J. J. Flaherty, for defendant. BARKER, J. The testator devised to his son Jonathan the improvement, rents, and use of a certain farm, for and during the term of his natural life; and, by a subsequent clause of his will, gave and devised to Eben, "the son of my son Jonathan, the farm as herein- before described, subject to the life-estate therein given to my son Jonathan, and sub- ject, also, to the limitation that, if said Eben die without issue, then his devise is to go to other son or sons of my son Jonathan, if any there should be, and, if not, to the heirs of my son Jonathan, forever." The will was admitted to probate on February 16, 1817. The testator's son Jonathan is now dead, and never had any son but Eben. Eben is childless and unmarried, and is now in posses- sion of the farm, claiming title under the will. By the devise, without express words of in- heritance, of the farm, subject to the life-es- tate of his father, Eben would take a fee, un- less it clearly appeared by the will that the testator intended to give him a less estate. Rev. St. c. 62, § 4; Briggs v. Shaw, 9 Allen, 516; Goodwin v. McDonald, 153 Mass. 481, 27 N. E. 5. The defendant contends that Eben's estate is a fee determinable upon his own death without issue surviving him, and that upon such death the heirs of the testa- tor's sou Jonathan will take by way of ex- ecutory devise. Eben claims that he is in of an estate tail, his fee being cut down by the implication in favor of his issue as objects of the testator's boimty, and that the devise over, if he die without issue, is a remainder in ex- pectancy after his estate tail. Another pos- sible construction might be that Eben's re- mainder was intended to be an absolute fee, subject to be divested in favor of the other son or sons of the heirs of Jonathan, if Eben died without issue before the death of Jona- than, but with which nothing could interfere if Eben survived Jonathan. Unless the con- struction which gives to Eben only a deter- minable fee, and to the other son or sons or the heirs of Jonathan an executory devise, is a correct one, Eben can convey a good title to the property. Against that construction, in our opinion, the following considerations must prevail: There is no reason to suppose that the testator desired to create an execu- tory devise for the benefit of any specific per- sons known to him, and whom he desired to make objects of his bounty. There were nev- er any other son or sons of Jonathan. The testator must have supix)sed that such might be born, and, they being younger than Eben, it would not be absurd to suppose that they might possibly survive both Eben and his children. The devise over to such son or sons is therefore not conclusive that the tes- tator intended a definite failure of issue at Eben's own death. The alternative devise to the heirs of the testator's son Jonathan pro- vided for some one to take upon an indefinite failure of Eben's issue, however remote the failure might be, if there should then be living any of the testator's own blood. The testa- tor's language did not refer to any existing person when he spoke of "any other sou or sons of Jonathan." Taking the whole will to- gether, his intention was to keep the farm in the family of his son Jonathan, giving the benefit of it to Eben, Jonathan's then only and so eldest\Son, and to Eben's issue so long as there should be such issue; but if such is- sue should fail, then to the other son or sons of Jonathan, if such should ix)ssibly have come into being and be then living; and, If there were no such other sons then living, to Jonathan's hell's, whoever they might be. The testator used language which so long has received a technical construction that it was said by this court, in the year 18C)9. to have become a rule of property; and, unless the contrary clearly appears, he should be held to have used it in its technical sense. Ide v. Ide, 5 Mass. 501; Parker v. Parker, 5 Mete. (Mass.) 134; Hay ward v. Howe, 12 Gray. 51; Allen V. Trustees, 102 Mass. 2G2, 264. When he devised the farm over, "if Eben die with- out issue," he meant the devise over to take effect upon an indefinite failure of Eben's is- sue; and he intended by the whole provision to give to Eben an estate tail, and to the pos- sible other son or sons of Jonathan, who in fact never were born, or to Jonathan's heirs, a remainder in expectancy after the estate tail, and not an executory devise. Nightin- gale V. Burrell, 15 Pick. 110; Hall v. Priest, 6 Gray, 18, 20. The result is that, the construc- tion of the will which gives to Eben a deter- minable fee, and to the heirs of Jonathan a future interest by way of executory devise, being untenable. Eben can convey a good title. Decree affirmed. 80 ESTATES IN REAL PROPERTY. BOYKIN et al. v. ANCRUM et al. (6 S. E. 305, 28 S. C. 486.) Supreme Couit of South Carolina. April 17, 1888. Appeal from common pleas circuit court of Kershaw county; Norton, Judge. Action by Elizabeth B. Boykin and others against W. A. Ancrum and others to recover possession of lands to which plaintiffs claimed title under the will of William Ancrum, de- ceased. The case was referred to a master, whose decisions were partially affirmed and partially reversed by the circuit court on ap- peal. From this decree both parties appeal. W. M. Shannon, for plaintiffs. J. T. Hay, for defendants. McGOWAN, J. In the year 1831 William Ancrum died, leaving a will, by the fifth clause of which he devised as follows: "And as to my real estate I give and bequeath and devise unto my dearly-beloved wife, Julia, my dwell- ing-house situate in the town of Camden, with the appurtenant lands and hereditaments there- unto belonging, * * * for and during the term of her natural life. From and after the decease of my said dearly-beloved wife, I give and bequeath and devise my said dwelling- house * * * to my eldest son, Fowler Bris- bane Ancrum, for and during the term of his natural life; and from and after his decease to his lawful issue, absolutely and in fee-sim- ple. If my eldest son. Fowler Brisbane An- crum, should die, leaving no lawful issue at the time of his decease, then and in such case I give, bequeath, and devise my dwelling * * * to my second son, William Alexander Ancrum, for and during the term of his natural life; and from and after his decease to his lawful issue, absolutely and in fee-simple. But if my said second son, William Alexander Ancrum, should die, leaving no lawful issue at the time of his decease, then and in such case I give, bequeath, and devise my said dwelling, etc., to my third son, Thomas James Ancrum for and during the term of his natural life; and from and after his decease to his lawful issue, forever and in fee-simple," etc. The eldest son. Fowler Brisbane Ancrum, died early, without lawful issue at the time of his death. The second son, William Alexander Ancrum, purchased the life-estate of his moth- er, Julia, (afterwards Mrs. Glass,) in 1837, (the deed, however, was not proved;) and thus being, as he doubtless supposed, the owner of the fee, on March 25, 1857, he conveyed the premises described, with the usual warranty, to one Joseph W. Doby, who, in 1863, con- veyed them to James R. Read; and he (1873) to Martha C. Jennings; and she (1876) to E. D. Durham; and he (1876) to Thomas J. An- crum; and he (1881) conveyed the same to William A. Ancrum, trustee, with the excep- tion of one-half acre, which was conveyed (1884) to Fannie C. Johnson; and William A. Ancrum, trustee, (1885) conveyed one acre of said premises to H. TJ. Parker. Fannie C Johnson, being advised that she had good legal title, made improvements on the premises con- veyed to her, which enhanced their value $1,- 450; and William A. Ancrum, trustee, sup- posing that his title was good, made improve- ments on the premises conveyed to him, which enhanced their value $2,000. William Alex- ander Ancrum died in the month of July, 1862, leaving at the time of his death as his lawful issue his son, Thomas A. Ancrum, and four daughters, viz., Mary, who intermarried with C. J. Shannon; Elizabeth B., who intermarried with Samuel Boykin; Ellen, who intermarried with Francis D. Lee; and Margaret, who in- termarried with Samuel F. Boykin. Elizabeth was born April 25, 1843, and Margaret was born on May 6, 1848, and died April 28,' 1884, leaving as her heirs at law her husband, Sam- uel F. Boykin, and four minor children, viz., Douglass A., Samuel F., Mattie R., and Wil- liam A. Boykin. In 1872, while James R. Read held the premises, Thomas J. Ancrum, Mary A. Shannon, and Ellen D. Lee, three of the children of William Alexander Ancrum, by their deed under seaJ, released and relin- quished all right or claim in said premises sold by their father. Julia Glass, the widow of the testator, died in 1885; and Elizabeth B. Boykin and the husband and children of her deceased sister Margaret Boykin, (being the two children of William A. Ancrum, who did not release their interest in the premises,) in- stituted this action, some time in the latter part of the year 1885, (the exact date does not ap- pear,) against the several parties in possession, to recover their respective shares of the afore- said premises, as purchasers under the will of William Ancrum, and to partition the same among themselves. The defendants claim that, the first son, Fowler Brisbane Ancrum, being out of the question, the devise gave a vested fee conditional to William A. Ancrum, and, having aliened the premises after issue born, his alienees are seized "in fee; and, failing in this construction, that they had acquired title by the statute of limitations and presumption of a grant from lapse of time, etc. The issues of fact and of law were referred to the master, J. D. Dunlap, Esq., who made a very full and clear statement of the facts, as herein sum- marized, and held that William A. Ancrum took under his father's will only a life-estate in remaindei after the life-estate of his mother Julia, and that his children and grandchildren (whose parent was dead) took by purchase as remainder-men, and not as heirs by limitation; and that Elizabeth B. Boykin and the heirs of her deceased sister Margaret Boykin are entitled to recover their shares of the premises in question, — the said Elizabeth B. one-fifth part thereof, and the other plaintiffs (heirs of Margaret) another one-fifth part. — and all prop- er rents, and allowing credits for improvements accordingly, etc. This report was heard upon exceptions by his honor. Judge Norton, who confirmed the report as to the construction of the will of William Ancrum; but he held that, 1 MERGER. 81 upon the purchase of his mother's (Julia's) life- estate by William Alexander Aucrum, that es- tate was merged in his own life-estate; and as that ended with his death, in July, 18G2, a right of action then accrued to the remainder-men, who were under no disability to sue; and that the lapse of 20 years from that time until the action was brought raised the presumption of a grant from Mrs. Elizabeth B. Boykin, and, as to her, he dismissed the complaint; but he decreed that Samuel F. Boykin, the husband of Margaret, who had died, was entitled to one-fifteenth, and each of her four minor chil- dren to one-thirteenth, of the premises claimed. From this decree both the plaintiffs and defend- ants appeal to this court; the defendants upon the single ground thac "his honor erred in ad- judging that, under the will of William An- crum, the children of William A. Ancrum took, as purchasers, an estate in fee-simple in re- mainder in the premises described, and that William A. Ancrum took only a life-estate therein." The plaintiffs' exceptions: "(1) Be- cause his honor erred in holding that, when W. A. Ancrum purchased the life-estate of Mrs. Julia Glass in the premises described in the complaint, her life-estate merged in the life-estate of the said W. A. Ancrum. (2) Be- cause his honor erred in holding that the pre- sumption of a grant was set in motion against the plaintiffs at the time of the death of W. A. Ancrum. (3) Because his honor erred in holding that the occupancy of the premises since the death of W. A. Ancrum has created a complete presumption that Mrs. Elizabeth B. Boykin had conveyed her interest in the premises to the alienee of W. A. Ancrum. (4) Because his honor erred in not holding that the presumption arising from an adverse holding ceased to operate from the time of J. R. Read's purchasing the interests of certain co-tenants of the plaintiffs on the day of , 1872, and from that time became permissive and amicable. (5) Because his honor erred in holding that the defendants are entitled to interest on the amount allowed them for im- provements from the day of filing of said de- cree, when the evidence shows that they are in possession of said premises, and receiving the benefits of the same." As to the construction of "the devise: "To my second son, William Alexander Ancrum, for and during the term of his natural life; and from and after his decease to his lawful issue, absolutely and in fee-simple; but if my said second son. William Alexander An- crum, should die, leaving no lawful issue at the time of his decease, then and in such case oier," etc. Without going again into the au- thorities upon the subject, we think this case is concluded by that of Mclntyre v. Mclntyre, 16 S. C. 294, where the authorities are cited and the conclusion satisfactorily stated by Mr. Justice Mclver as follows: "We think the authorities in this state conclusively show that where the word 'issue' is so qualified by addi- tional words as to evince an intention that it is not to be taken as descriptive of an indefinite GATES,R.P.-G line of descent, but is used to indicate a new stock of inheritance, the rule in Shelley's Case does not apply." In that case, as in this, the antecedent estate was expressly "for life," and, after the decease of the tenant for life, to the "issue." The superadded words there were, "and their heirs forever," while here they are, "absolutely and in fee-simple,"— an equivalent phrase certainly quite as strong as the other. Besides, here there is still another limitation over to the third son, Thomas James Ancrum: "But if my said second son, William A. Ancrum, should die, leaving no lawful issue at the time of his decease," etc. We agree with the master and circuit judge that William Alexander Ancrum took only a life-estate in the premises described, and that there was a limitation over to his issue as purchasers. Then as to the plaintiffs' exceptions. The first charges that it was error in the judge to hold "that, when W. A. Ancrum purchased the life-estate of Mrs. Julia Glass in the premises described, her life-estate merged in the life- estate of W. A, Ancrum." It was certainly just when Chancellor Kent adopted the lan- guage of a great master in the doctrine of merger, "that the learning under this head is involved in much intricacy and confusion." "Merger is described as the annihilation of one estate in another. It takes place usually when a greater estate and a less coincide and meet in one and the same person without any inter- mediate estate, whereby the less is immediately merged — that is, sunk or drowned— in the great- er." Garland v. Pamplin, 32 Grat. 305; 2 Bl. Comm. 177; 4 Kent, Comm. 100. Taking this definition, do the conditions exist here for a merger? Mrs. Glass had an estate for hfe. and (passing over the eldest son, who had died early) the next vested estate was that of Wil- liam Alexander Ancrum, which was also for life, without any estate intervening. These respective estates were to be enjoyed succes- sively and not concurrently; that of the moth- er, Julia, coming first in the order of succes- sion. But in 1837 W. A. Ancrum purchased the life-estate of Julia, and held both, claimin.i,' the premises as his own absolutely, until he sold and conveyed them to Doby, in 1857. Did not this make the case referred to in the books "of the incompatibility of a person filling at the same time the characters of tenant and remain- der in one and the same estate?" It is said, however, that both estates were for life, and therefore equal in degree, and merger only takes place when a larger and sm.aller estate meet in the same person. The general rule is that equal estates will not drown in each otlier, but there are well-established exceptions. AVere these estates eqiual in the sense of the rule? Lfooking at them from the point of view of W. A. Ancrum, one was an estate for the life of Mrs. Julia Glass, preceding his estate, and the other succeeding was for his own life. There seems to be something in the order in which the estates stand to each other in the matter of time. Chancellor Kent states the rule thus: "The merger is produced either 82 ESTATES IN REAL PROPERTY. from the meeting of an estate of higher degree with an estate of inferior degree, or from the meeting of the particular estate and the imme- diate reversion in the same person. An estate for years may merge in an estate in fee or for life; and an estate pour autre vie may merge in an estate for one's own life; and an estate for years may merge in another estate or term for years, in remainder or reversion. * * * To effect the operation of merger, the more remote estate must be the next vested estate in remainder or reversion, without any inter- vening estate, either vested or contingent; and the estate in reversion or remainder must be at least as large as the preceding estate." It seems that, even when the estates are theo- retically equal, the first in the order of succes- sion may merge in the next vested remainder, being in this respect somewhat like a surren- der, which is the relinquishment of a particular estate in favor of the tenant of the next vest- ed estate in remainder or reversion. In the notes to the case of James v. Morey, 2 Cow. 246, 3 Shar. & B. Lead. Cas. 231, (lately pub- lished, 1887,) the rule is thus stated: "The estate in reversion or remainder must be as large as, or larger than, the estate to be mer- ged. 3 Prest. Conv. 51. The expression 'as large or larger' must be, of course, taken in the technical sense. Thus an estate for life is larger than an estate for years, although death may destroy the former estate long be- fore the efflux of time has brought the latter to a conclusion. Thus if a lease be made for years, with a remainder to the lessee for life, the estate for years will merge; but if there be an estate for life, with remainder to the life-tenant for years, there will be no merger. Co. Litt. 54b. In Sheehan v. Hamilton, 4 Abb. Dec. 211, it is said that estates of equal degree do not merge; but, whether this be strictly so or not, the effect of a merger will be produced by the unity of possession. An estate at will will merge in an estate for years. 3 Prest. Oonv. 176. Estates for years may merge in each other or in estates for life; es- tates for life will merge. Co. Litt. 33Sb; Cary v. Warner, 63 Me. 571; Allen v. Ander- son, 44 Ind. 395." We cannot say that the circuit judge committed error in holding that, when W. A. Ancrum purchased the life-estate of Mrs. Glass in the premises, that estate merged in his estate. Exceptions 2, 3, and 4 make the point, sub- stantially, that the judge erred in holding that at the death of William A. Ancrum (1SR2) the rights of the issue in remainder attached, and from that time the possession of the parties was adverse, so as to put iu motion the pre- sumption or a grant from Mrs. Elizabeth B. Boykin, who reached her majority in 1864, two years after the death of her father, W. A. An- crum, and more than 20 years before the com- mencement of the action. The life-estate of Mrs. Glass was the first in the order of suc- cession, and doubtless was expected to be the first to fall in; the fact, however, was other- wise, for she survived W. A. Ancrum for more than 20 years. It is true that, but for his pur- chase of her estate, W. A. Ancrum would nev- er have reached the possession of his estate; ajid it is asked whether, under these circumstan- ces, his right must be limited to his own life- estate, which, though vested, he never enjoyed in possession, so as to make his death and not hers, the time at which an action accrued to the remainder-men. At first view it is not obvious how an estate which turned out to be the longest could be drowned in one of shorter duration; but, according to the authorities, it seems that such was the necessary consequence of the merger. See Mangnm v. Piester, 16 S. C. 330; 4 Kent, Comm. 99; 2 Pom. Eq. Jur. § 787, and notes, where it is said that "an es- tate for years will merge in a reversionary term of years, even though the latter is of less du- ration," citing among other authorities Welsh V. Phillips, 54 Ala. 309. And Chancellor Kent says: "The estate in which the merger takes place is not enlarged by the accession of the preceding estate; and the greater or only sub- sisting estate continues after the merger pre- cisely of the same quantity and extent of own- ership as it was before the accession of the estate which is merged, and the lesser estate is extinguished," etc. We cannot doubt that the premises were held adversely to all the world. During his life William A. Ancrum held them as his own absolutely. Shortly be- fore his death (in 1857) he conveyed them to Joseph W. Doby, with the usual warranty of title. We do not see how the relinquishment of some of the remainder-men could affect the character of the possession as to those who did not relinquish. We do not, however, think that the defendants should have interest on the value of their improvements while they have the possession and use of the same. The judgment of this court is that the judg- ment of the circuit court, with the slight modi- fication as to interest on the value of the im- provements, be affirmed. SIMPSON, C, J., and McIVER, J., concuT. 1 CONVEJ^TIOXAL LIFE ESTATES. 83 MERRITT V. SCOTT et ux. (81 N. C. 385.) Supreme Court of North Carolina. June Term, 1879. H. R. Bryan, A. G. Hubbard, W. E, Clarke, and F. M. Simmons, for plaintiff. Green & Stevenson, for defendant. SMITH, C. J. The tract of land described in the complaint was in 1842 conveyed by James Merritt, the owner, to his son John Merritt, in trust for another son, Francis Merritt, for life, remainder to his wife, Deborah, for life or widowhood, and with a further limitation over at her death or marriage to the children of Francis then living. John Merritt, the trustee, died intestate, leaving children, who, with the said Deborah, are the plaintiffs in this action. The life tenant Francis, who is also dead, in his lifetime conveyed his estate to one John Cox, and after his death his administrator, un- der proceedings in the probate court and with license therefor, sold and conveyed the land to the defendant Edward Scott. The object of the suit is to recover the land for the use of said Deborah, and damages for its detention since the death of Francis Merritt. No issue as to title is made, and in the in- quiry before the jury as to the damages, the defendant offered to show in support of the de- fence set up in his answer, that valuable im- provements had been made on the lands both by himself and the preceding occupant, in the erection of useful buildings, and by ditching, fencing, and manuring, whereby the value of the land had been greatly enhanced. The evi- dence on objection from plaintiff was excluded, and the exception to this ruling of the court is the only point presented in the appeal. Under instructions, the jury assessed the damages from August 18th, 1873, whidi we suppose to be the date of the determination of the first life estate, at the rate of one hundred dollars per annum. Whether these improve- ments or any of them were made during the years for which the defendant is charged for rent, does not appear. We think it clear that improvements of any kind put upon land by a life tenant during his occupancy, constitute no charge upon the land when it passes to the remainderman. He is en- titled to the property in its improved state, without deduction for its increased value by reason of good management, or the erection of buildings by the life tenant, for the obvious reason that the latter is improving his own property and for his own present benefit. This proposition is too plain to need the citation of authority. For subsequent rents and uses he is entitled to have the amount reduced by those improve- ments. Suppose, while holding over, the de- fendant had by such improvements as in the answer are alleged to have been made, rendered the land more valuable, as it comes to the re- mainderman, would it not be reasonable he should pay a smaller rent than if nothing of the kind had been done? So if no repairs were made and the buildings had gone to decay, and by mismanagement and bad cultivation, the farm had been abused and its value impaired, a full and larger rent might justly be required of the tenant. The evidence of such improvements as were made by the defendant, after his estate ex- pired, and he became chargeable with rent, ought to have been admitted and considered by the jury in measuring the value of the rent, and in mitigation of damages. The evidence was competent for this purpose only, and not, in case the improvements were worth more than the rents, to constitute a counterclaim for the excess. The rule is thus stated by Mr. Tyler: "The defendant should be allowed for the value of his improvements made in good faith, to the extent of the rents and profits claimed, and this is the view of the subject which is supported by the authorities." Tyler, Ej. 849. Referring to the action for mesne profits which might be brought after a recovery in ejectment, Ruffin, C. J., uses this language: "The jury can then make fair allowance out of the rents, and to their extent, for permanent improvements honestly made by the defendant, and actually enjoyed by the plaintiff, taking into consideration all the circumstances." Dowd V. Faucett, 4 Dev. 92. Thus far the jury should have been allowed to hear and consider the evidence, in assessing the sum which the defendant should pay for the use of the premises, for it is quite apparent the improvements were made in good faith and will enure to the plaintiff's benefit. As a counterclaim and to charge the land therewith when the estate in remainder is vest- ed in Deborah, the evidence is totally inad- missible under the act of February 8, 1872. Battles Revisal, c. 17, § 262a et seq. The act is not applicable to a case like this, but to in- dependent and adversary claims of title, and was intended to introduce a just and reason- able rule in regard to them. The owner of land who recovers it has no just claim to anything but the land itself and a fair compensation for being kept out of posses- sion; and if it has been enhanced in value by improvements made imder the belief that he was the owner, the increased value he ought not to take without some compensation to the other. This obvious equity is established by the act. But to enjoy its benefits, a party aft- er judgment must file his petition and ask to be allowed for his permanent improvements, "over and above the value of the use and oc- cupation of such land." If the court is satisfied of the probable truth of the allegation, and the case is one to which the statute applies, and this must be prelimi- narily determined, it may suspend execution, and cause a jury to be impaneled "to assess the damages of the plaintiff and the allowance to the defendant" for his permanent improve- ments, "over and above the value of the use and occupation of the land." 84 ESTATES IN REAL PROPERTY. This course has not been pursued, and the evidence is offered in the trial without any previous application to the judge, or his assent being obtained. But waiving the informality, we are not prepared to say the judge was in error in disallowing the evidence for the pur- pose of establishing a counterclaim for the ex- cess. The defendant is entitled to have his claim for improvements made since the expira- tion of his own estate, considered by the jury in estimating the value of the rents, under ap- propriate instructions from the court in rela- tion thereto. For this error in wholly rejecting the evidence, there must be a venire de novo, and it is so ordered. Error. Venire de novo. COXVENTIOXAL LIFE ESTATES. 85 WATKINS V. GREEN. (60 N. W. 44, 101 Mich. 493.) Supreme Court of Michigan. Sept. 25, 1804. Error to circuit court, Wayne county; George S. Hosmer, Judge. Action by Gilbert Watkins against Nelson Green for breach of covenant of warranty. Judgment for defendant, and plaintifC ap- peals. Reversed. The defendant executed to plaintiff a war- ranty deed of certain lands. This action is brought to recover for alleged breaches of the covenant of warranty. The title to the property was originally in one Toussaint L'Esperance, who died intestate in 1842, leav- ing a widow and six children. He bequeath- ed one-third of the laud in fee to his widow, and a life estate in the remainder. Upon the termination of the life estate the two- thirds were bequeathed in equal shares to his six children. Pri6r to 1853 the land had been imoccupied, except that the timber had been removed. In October, 1850, the entire land was sold for the taxes of 1848, and was again sold in October, 1851, for tlie taxes of 1849. October 21, 1851, the auditor general issued his deed to Edward Meyers upon the first sale, and on November 16, 1852, a sec- ond deed upon the sale of 1851. The first sale was to one Williams, who assigned to Meyers. The second sale was direct to Mey- ers. Two of the children died, leaving no issue. One is dead, leaving one child, and three are still living. The widow died May 2, 1SS7. July 19, 1851, Meyers obtained by quitclaim deed the interest of Edward, one of the six children, who was the owner of an undivided one-ninth. May 23, 1854, the widow and two of the children quitclaimed their interests to one Nathan H. White, who, I on July 1st of the same year, conveyed tlie land by quitclaim deed to one Daniel Ball. Ball deeded to one Boltwood in 1857. June 4, 1858, the interests of two of the other chil- di*en passed by guardian's deed to one Dow, who in turn conveyed these interests to Bolt- wood. October 3, 1853, the entire land was | sold for the taxes of 1851 and 1852. Two deeds were issued upon these sales to one Stevens, who on July 2, 1S55, conveyed the interest acquired by these deeds to ,JBall. Ball conveyed to White, and the tax titles passed to Boltwood under the deed from White already referred to. INIay 17, 1887, Boltwood conveyed to James B. Judson. In 1886 Judson purchased the interest of the two remaining heirs of Toussaint L'Espex*- ance. There is no competent evidence that Meyers ever went into possession of the laud, or was inti'usted with its care and super- vision, either by L'Esperance or his widow. The only testimony upon this subject Is given by one of the children of L'Esperance, who testified to his understanding from con- versations he had with his mother. Such testimony was hearsay and incompetent. July 4, 1853, Meyers conveyed the entire land to one John Hanley by warranty deed. The land was then in the state of nature, except that the timber had been removed, and was covered with water and willows. Hanley immediately went into possession with his family, drained and fenced it, and the follow- ing year built a house, barn, and other build- ings upon it, and continued in such posses- sion until he conveyed by warranty deed to defendant. Green, October 13, 1879; mean- while paying tlie taxes and cultivating and improving the land. Green executed a war- ranty deed to plaintiff, Watkins, January 2, 1881. Green occupied the land, through ten- ants, until the conveyance to plaintiff. Mr. Judson commenced an action of ejectment against the pla^.ntiff, who notified defendant of Judson's claim, and demanded Ihat he defend the suit. This defendant refused, claiming that he had a good title by adverse possession. Plaintiff then purchased the in- terests held by Judson, and brought tliis suit. The court below directed a verdict for the defendant, holding: "(1) That John Hanley went into possession of the property in dis- pute under a claim of title, i. e. the Meyers tax deeds and his deed from Meyers, and that under this claim he held an open, notori- ous, hostile, distinct, and adverse possession for over twenty years. (2) That, of the 'pat- ent title,' defendant obtained one-ninth by his deed from Meyers. (3) That the statute of limitations had run in favor of Hanley and his successors, against the widow, as to the three-ninths willed to the widow abso- lutely. (4) That there was a merger of the life estate and the three-ninths of the estate obtained from Enos, Philip, and Chai'les, and passing to Boltwood on June 12, 18 W, and that the statute of limitations had run against the three-ninths, in favor of Hanley and his successors. (5) That the Sears Stev- ens tax titles were paramount titles, and, when purchased by Ball, extinguished the two-ninths of the patent title still held by Elizabeth Crouch and Josephine Page, and the right of entry accrued at once to Bolt- wood, and that the statute of limitations had run against the entire patent title, in favor of Hanley and his successors. (6) That the tax titles piu*chased by Meyers were para- mount to the title of the children and that of the widow, and that Hanley's possession under the paramount title extinguished the title of the widow and children to the prop- ei'ty in question." George W. Radford (Edward A. Barnes, of counsel), for appellant. Jay Fuller, for appellee. GRANT, J. (after stating the facts). Mey- ers, at the time of the pm'cha.se of his one- ninth interest from Edward L'Esperance. was not in possession, nor did he taJie possession eitlier under that deed or his tax deeds. He occupied no relation of trust or confidence towards the widow and the heirs. He was iherelore uutler no obligatiun to pay tlieir taxes, or to buy up outsuinding interests or 86 ESTATES IN REAL PROPERTY. titles for their benefit. Hanley went into possession under his warranty deed from Meyers, claiming the entire title, and imder a deed which purported to convey the entire and absolute fee. It cannot be said that he accepted this deed charged with any duty to protect the life estate, or the undivided in- terests of any of the tenants in common. Hanley's possession at once became open, no- torious, hostile, and exclusive to all claiming any interesj; in the land. That possession continued in Hanley and Ms grantees for nearly 40 years, and more than 20 years after the minor children became of age. It is es- tablished in this state that one who purchases an undivided interest in lands, and enters as a stranger to the rights of his cotenant, is not estopped fi'om setting up against them an ad- verse title that originated before his purchase. Blackwood v. Van Vleit, 30 Mich. 118; Cam- pau V. Dubois, 39 Mich. 274; Sands v. Davis, 40 Mich. 14. Such entry operated as an oiister of all those having an interest in the land and the right of entry. The widow was then entitled to the possession of one-third by virtue of her one-third ovniership, and to the possession and enjoyment of the other two-thirds by vir- tue of her life estate. Clearly, therefore, her acts, and those of her grantee of these two interests, were lost by adverse possession, and the title vested in the defendant. When Ball purchased the interest of the widow and one of the children, and the tax titles for the taxes of 1851 and 1S.")2, which were then outstanding, aU these titles be- came merged in him. He was then entitled to possession, as against Hanley. The right of entry became complete, and the statute of limitations began to run. By the deed from BaU to White, dated m 1856, and from White to Boltwood, In 1857, Boltwood succeeded to the same rights and interests, and was en- titled to possession. Boltwood, by his pur- chase of the interests of Enos and PJiihp in 1858, became possessed of the entire title, in- cluding the life estate, except the one-ninth purchased by Meyers and the two-ninths out- standing in Josephine and Elizabeth. He took no steps to enforce his rights, and the defendant, by the adverse possession of him- self and his grantors, obtained title to all the interests owned by Boltwood. Boltwood, be- ing the owner of the life estate, was obli- gated to pay the taxes, and protect the inter- ests of the remainder-men. If he chose to permit Hanley and his grantees to remain in adverse and undistiu-bed possession tiU such possession ripened into a vahd title, neither he nor his grantees can now separate his inter- ests, under the plea that, as to some of the interests, he had not the right of entry, Josephine and EUzabeth, or their grantees, acquired no right of entiy until the death'of then* mother, in May, 1887, when the life es- tate terminated. How. St. § 8700. As to these interests, therefore, there has been no adverse holding, so as to convey title. Cook V. Knowles, 38 Mich. 31G; Marble v. Price, 54 Mich. 466, 20 N. W. 531. If, therefore, the tax deeds to Meyers are void, there was a breach of the defendant's covenants of warranty, for which the plain- tiff Is entitled to damages. Of course, if the tax deeds obtained by Meyers are valid, they cut off the entire title of the widow and heirs. Where the owner of the life estate neglects to pay the taxes assessed upon the land, and they are sold under valid taxes and valid proceedings, title passes to the grantee, and the only remedy of the remainder-men is against the life owner. Judgment must be reversed, and a new trial ordered. The other justices concurred. CON\'EXTIONAL LIFE ESTATES. 87 WOOSTER V. COOPER et al. (33 Atl. 1050, 53 N. J. Eq. 682.) Court of Errors and Appeals of New Jersey. March 9, 1890. Appeal from court of chancery. Suit by Charles I. Wooster against William T. Cooper and others. Decree for defendants, and plaintiff appeals. Aftirmed. John W. Wescott and John J. Crandall, for appellant. William Moore and James Buch- anan, for respondents. GUMMEKE, J. Benjamin D. Cooper died in the month of March, IH'J'.i, having made his last will on December 31, 1881, by which, among other things, he provided as follows: "I order and direct that all my estate, real, personal, and mixed, shall during the life of my beloved wife, Tacy Cooper, should she survive me, pass into her hands, and be sub- ject to her sole management and control, to keep and use or sell and dispose of the same as she shall see fit; and my executors here- inafter named shall not, during said time, be responsible therefor. From and after the death of my wife, should she survive me, otherwise from and after my death, all my estate, real, personal, and mixed, which shall then remain, 1 order and direct my executors hereinafter named, or the survivor of them, to dispose of, as soon as conveniently may be thereafter, as follows." The will then directs a conversion of the estate into cash, and the distribution thereof among the respondents in this case. Testator's wife, Tacy, survived him, and, under the terms of his will, took possession and control of his entire estate, real and personal, and continued to possess and enjoy the same until her death, which oc- curred February 24, 1894. Testator's wife made no disposition of any portion of her husband's estate during her lifetime, but she left a will in and by which, after di- recting the payment of her debts and fu- neral expenses, she gave, bequeathed, and de- vised all her property, both real and per- sonal, wherever situate and whatever the same might be, to her nephew Charles I. Wooster, the appellant in this case, to him and his heirs, forever. Under this last-men- tioned will, tiie appellant claims to be en- titled to the whole of the estate of Benjamin D. Cooper which was in the possession of his wife, Tacy, at her death; his insistment being that she was the absolute owner there- of by the terms of her husband's will, be- cause there was coupled with the devise to her an absolute and unqualified power to dispose of the estate. The vice chan- cellor, by the decree appealed from, over- ruled this claim, and held that, by the will of her husband, Tacy Cooper took only a life in- terest in his estate, and that at her death so much of it as had not been disposed of by her in her lifetime went to her husband's lega- tees. I agree with the learned vice chancellor in this construction of the will of Benjamin D. Cooper. It gives to his wife, by express words, a life estate in his property, and then annexes to it a power to dispose of the same without qualification or limitation. The rule that a devise of an estate generally, with a power to dispose of the same absolutely and without limitation, imports such dominion over the property that an estate in fee is created, and that a devise over is consequent- ly void, has one exception, which is this: that where the testator gives an estate for life only, by certain and express words, and annexes to it a power of disposal, the dev- isee for life will not take an estate in fee. This exception was recognized and enforced by this court in the case of Downey v. Bor- den, 36 N. J. Law, 460, and again in the case of Pratt v. Douglas, 38 N. J. Eq. 533; and in the latter case it was declared to ap- ply to bequests of personal estate as well as to devises of realty. These cases have defi- nitely settled the law on this subject in New Jersey, and the propriety of the rule laid down in them is no longer open to discussion. The decree of the court of chancery should be affirmed. 88 ESTATES IN REAL PROPERTY. FOSTER V. HILDIARD et al. (Fed. Gas. No. 4,972, 1 Story, 77.) Circuit Court, D. Massachusetts. May Term, 1840. Mr. Dehon, for plaintiff. S, Greenleaf, for defendants. STORY, Circuit Justice. The case may oe shorKy stated, upon wliich the arguments have been addressed to the court. A devise Avas made of cei-tain wild and uncultivated land in Maine to A., as tenant for life, re- mainder to his nephews, who were minors, in fee. Aftar the death of the testator, the tenant for life, with the assent of the guard- ian of the minors, sold the land, and received a part of the pm'chase money, and then died, and the residue of the pm-chase money has since been received by the executors of the tenant for life. The minors have since come of age; they do not seek to distm-b the sale; but they claim the whole purchase money from the executors. The present action is brought by one of the remainder men, to re- cover his share. There is no proof of any agreement between the tenant for life and the guardian, as to the distiMbution or division of the pm'chase money between the tenant for life and the remainder men. On behalf of the remainder men, it is contended: (1) That the purchase money is to be treated as a mere substitute for the land on the sale; that the tenant for life was entitled to the income thereof dm'ing his life; and that the whole principal now belongs to them. (2) That if they are not so entitled, the appor- tionment of the pm'chase money is to be made between them and the executors, not accord- ing to the value of the life estate of the ten- ant for life, according to the common annuity and life tables, but according to the actual fact;^. he having died shortly after the sale. On the other hand, the executors contend: (1) That the tenant for life was entitled, and tliey, as his executors, are entitled, to hold so much of the pm-chase money as the value of his life estate, at the time of the sale, bore to the whole interest in fee. (2) That the apportionment between them is to be made according to the value calculated by the com- mon annuity and life tables, at the time of the sale, without any reference to the actual dm-ation of his life. It is admitted, that there is no case exactly in point; and, perhaps, considering the frequency of sales by a ten- ant for life and a remainder man, it is a mat- ter of some sm'prise, that no such case should be found. The circmnstance, however, may be reasonably accounted for, either upon the gi'ound, that the sale usually takes place upon distinct and independent bargains; or, where there is a joint bargain, the shai-es of the re- spective parties are usually ascertained and apportioned by some private agreement Here, no such agreement can be ti'aced; and the sale seems to have proceeded upon a mu- tual confidence, that the proceeds would vilti- mately be divided justly and equitably be- tween the parties, according to their respec- tive rights. What are those rights? It seems to me, that when a sale of real estate is jointly made by two or more persons, hav- ing independent interests, the natm-al, nay, the necessary conclusion, in the absence of all other countervailing circumstances, is, that they are to share the purchase money accord- ing to their respective interests. If three tenants in common should jointly sell an es- tate, they would certainly be entitled to share the pm'chase money according to their respec- tive undivided interests. If one held a moi- ety, and the others one quarter part each, they would share in the like proportions. So, if three parceners should sell an estate, they would all share equally in the purchase money. What difference can it make, wheth- er they have undivided interests in the fee, or separate interests, carved in succession out of the fee? Whether they are tenants in com- mon of the fee, or tenants for life, and re- mainder men in fee? In contemplation of law, in each case, the sale is a sale of distinct and independent interests; and if the parties do not fix the amoimt of their respective shares in the pm-chase money by some posi- tive agreement, the natural conclusion is, no* that any one of tliem surrenders his right to the other, but that they silently agree to ap- portion the same among themselves accord- ing to their respective rights. Now, if in the present _case, the tenant for life had sepa- rately sold his life estate to the purchasL>r, there is no pretence to say, that he would not have been solely entitled to the principal of the purchase money. What difference can it make, except as to the means of ascertaining the value of his life estate, that he proceeds to make sale, or joins in a sale of the remain- der in fee? It does not sti'ike me, that there is any. Suppose A. and B., the several ovs'ners of two adjoining acres of land, should unite and sell them both in one deed, to a purchaser for a gi'oss consideration; would not the pm'- chase money be divisible between them ac- cording to the relative value of the two acres? I tliink it clearly would. But it is said, that, upon the sale, the pur- chase money was substituted for the land, and it is therefore to be ti'eated exactly, as if the land had remained in the parties; and hence, that the tenant for life had an interest for life in the purchase money, that is in its income, and, subject thereto, that the whole pm-chase money belonged to the remainder men, the present claimants. Now, this is assuming the very point in controversy; it is stating the difficulty, and not solving it. When a sale is made, the ordinary result is, that the vendor is entitled to the pm-chase money itself, and not merely to the income thereof. If a different appropriation takes place, it is a matter of private agreement, and not an inference of law. If (as I have already suggested) a tenant for life of land sells his life estate, he has a title to the whole purchase money, and not merely to the in- come thereof. He sells his own estate, and INCUMBRANCES. 8y lie is entitled to its full value at the time of the sale. Tlieu, how stands the law in cases, bearing a close analogy. Suppose the case of a tenant for life, remainder in fee, of lands under mortgage, in what manner do the par- ties contribute to tlie discliarge of the in- cumbrance? Exactly, as we all know, ac- cording to the relative value of their re- spective interests in the land, calculated ac- cording to the value of the estate of the tenant for life, by the common tallies. I need not cite authorities to this point; they are familiar to the profession. See 1 Story, Eq. Jur. § 4S7, where many of tlie authorities are collected; 1 Pow. Mortg. (by Coventry & Rand) 312, note M; Id. 314, in note Q.; 3 Pow. Mortg. (by the same) 920, 1>23, note H; Id. 1043, note O. The rule is founded upon the obvious equity, that every one of the parties in interest shall contribute in propor- tion to the benefit, which ho derives from the discharge of the incumbrance. The same principle applies to the case of a sale. Each party is to participate in the pm'chase money, in proportion to the beneficial interest he has in the land. The same principle applies, where a mortgagee devises the mortgaged estate to one for life, remainder over in fee; the tenant for life and the remainder man share the mortgage money, if paid by the mortgagor during their lives, according to the value of their respective interests at the time of the payment. See 1 Story, Eq. Jm*. § 485, and note; 3 Pow. Mortg. (by Coventry & Rand) 1043, note O. This was indirectly admitted in Brent v. Best, 1 Vern. 69; and directly held in Thynn v. Duvall, 2 Vern. 117. That is certainly a case nearly approaching the present, where it might have been said, that the devisee for life of the mortgagee ought to be entitled only to the interest for life, and to no part of the principal. A doctrine some- what different was asserted in the case of Lord Penrhyn v. Hughes, 5 Ves. 99, 107, where the master of the rolls said, that where there is a tenant for life and remainder men, en- titled to an estate under incumbrances, the tenant for life and the incumbrancers have a right to have the estate sold to discharge the incumbrances, and the sm-plus of money, after discharging the incumbrances, is to be divided between the parties, in the propor- tion, that their interests bear to the estate; that is, as the master of the rolls afterwards explained, by putting the whole out at in- terest, and allowing the tenant the interest for his life. See White v. White, 9 Ves. 554, 4 Ves. 33; 3 Pow. Mortg. 1043, note O. It is not, perhaps, very easy to see the reason of this particular docti'ine. It may be, that the tenant for life shall not, by his own act, com- pel the remainder men to submit to a sale, by which his interest in the remainder may be materially affected without his consent. But that case is unlike the present, whore there is a voluntary joinder in the sale, or a con- firmation of it. A court of equity may well decline to interfere in adversum to change ■real estate, by a sale, into personal estate, without imposing conditions, by which the proceeds shall retain throughout the charac- ter of the original fund, when it might not act in the same manner, where there had been a voluntary sale by the parties. The distinc- tion is often acted on in courts of equitj'. See Story, Eq. Jm-. § 1357. In the case of Houghton V. Hapgood, 13 Pick. 154, as far as I am able to gather from the report, (which, on this point, may be thought somewhat in- determinate,) a tenant by the curtesy of his wife's estate, which was sold by an executor improperly, but the sale was afterwards con- firmed both by himself and by her heirs, was held entitled to share in the proceeds accord- ing to the value of his life estate, as tenant by the ciu-tesy, calculated by the common tables of life annuities. If I take a right view of that ca.se, it is in exact coincidence with the opinion, which I hold in the present case. It appears to me, that the sale in the pres- ent case, having been confirmed and adopted by all the parties in interest, must be treated in the same way and manner, and have the same effect, as if it had been originally made by the consent of all the parties in interest, and all of them were then competent to make the sale; and that the rights of all the par- ties were fixed at that time. And this leads me to say a few words on the second point, made at the bar, as to the rule of apportion- ment. I think it must be according to the value of the life of the tenant for life at the time of the sale, calculated according to the common tables. If I am right in the opinion ah'eady stated, that the rights of the parties were absolutely fixed at the very time of the sale, then it follows, as a necessai'y conse- quence, that they are entitled to share in the proceeds according to the relative values of their respective interests in the estate at the time of the sale. The case of Clyat v. Batte- son, 1 Vern. 404, is not opposed to this doc- trine. In that case lands in mortgage were devised to A. for life, remainder to B. in fee. B. bought up the mortgage, taking an as- signment thereof in the name of tinistees. A. died; and then B., the remainder man, brought a suit against the defendant, who was the representative of A., to redeem the mortgage, and insisted, that the representa- tive ought to pay one third of the mortgage money, paid by B., by reason, that A. en- joyed the profits during his life. The court held, that if B. had brought the bill in A.'s lifetime, he would have been entitled to the proportion of the money according to the value of the respective estates of the tenant for life and the remainder man (that is, ac- cording to the old rule, now exploded, to one third); but that A. being dead, and having enjoyed the estate but one year only, the rep- resentative was bound only to allow for the time A. enjoyed the estate. This decision turned, therefore, upon the very point of the value of the estates of the tenant for life and the remainder man at the time, when the parties were charged with the payment of 90 ESTATES IN REAL PROPERTY. the money. But when the tenant for life sells his life estate, he sells it for what it is then worth, and of course his share of the purchase money does not depend upon the futm-e event of his life or death, but upon its present value. It sti-ikes me, therefore, that the true rule in the present case is to appor- tion the purchase money between the tenant /for life and the remainder men, according to (the relative values of their respective estates \n the land f^t the time of the sale, unaffect- ed-by the^Ht>sequent events. It is said, that the duration of the life of the tenant for life, calculated according to the common tables, was over twenty years, whereas he died in a little less than four years after the sale. Bo it so. The event has turned out unfavorably for the remainder men,— as contingent events sometimes do. But the tenant for life might have lived thirty years, and then the appor- tionment would have been favorable to them. The fact, therefore, djoes not shake the pro- priety of the rule of apportionment; but it only shows, that it has the common elements of uncertainty belonging to all calculations of contingencies. A tenant for life of a mort- gaged estate may die within a year after he has been compelled to pay one third part of the mortgage money upon a decree for re- demption, his Ufe having been calculated as worth that proportion of the money. He may, on the other hand, live far beyond the period of average life. Yet this inequality has never been supposed to justify any de- parture from the general rule of conU'ibution. In the view, which I take of the case, the other points made at the bar are not material to be discussed. I think, that the remainder men are entitled to their proportion of the purchase money, according to the relative value of the life estate, and the remainder at the time of the sale; that the executors are liable for this amount to the remainder men, and that, upon so much of the money as either the tenant for life or the executors have received interest, they are entitled to receive their proportionate share of the inter- est ESTATES PER AUTItK VIE. ^1 MOSHER et al. v. YOST et al. (33 Barb. 277.) Supreme Court of New York, General Term. Jan. 1, 18G1. Action for the recovery of certain real es- tate and for damages for withholding the same. The answer was a general denial. Plaintiff gave in evidence a lease and divers assignments vesting the title in one James Mantany, who died in 18.57, in possession of the premises. Deceased left a will, which was never admitted to probate, but was de- clared invalid by the surrogate. Letters of administration were issued. A son, after the death of his father, claimed to be the owner of his farm by gift from the fatlier, and sold his interest therein to defendant's assignee, at the same time transferring the lease to them. Plaintiffs claimed under the assign- ment of a lease from the administratrix of the decedent. The defendants took posses- sion. Judgment was rendered for the plain- tiffs for possession of the property and for mesne profits. The defendants appeal. Before ROSEKRANS, POTTER, and BOCKES, Justices. W. Higbie and H. Link, for appellants. Hardin & Burrows, for respondents. ROSEKRANS, J. We need not discuss the question whether the instrument signed by Lois Mantany, in form, passed to the plaintiff the title to the land and lease under which the farm was held, the possession of which is the subject of this action. Conced- ing that it did, the deed of Mrs. Mantany was clearly void upon the ground that the premises in question were, at the date of that deed, in the actual possession of the de- fendants claiming title under an assignment of the lease from William Mantany. The estate of the original lessees was a freehold estate, it being for their lives. 1 Rev. St. ^ p. 722, § 5. These lessees were still in life. By the assignment or conveyance of that lease the assignee or grantee became the owner of the lands, and held an estate dur- ing the life of another. This was the nature of the estate which James, Mantany held at the time of his death. The statute declares that it was a freehold estate during his life, but that after his death it became a chattel real. 1 Rev. St. p. 723, § 6. This estate passed as assets to the administrator of his estate. 2 Rev. St. p. 83, § G. At common law, if a man had an estate granted to him (without naming his heirs) for the life of an- other, and died dm-ing the life of him by whose life it was holden, any one who could first enter on the land might lawfully retain it, so long as the cestui que vie lived, by right of occupancy. The land did not revert to the grantor, for he had parted with all his interest so long as the one by whose life it was holden lived; it did not escheat to the lord of the fee. for all escheats must be of the absolute entire fee and not of any par- ticular estate carved out of It; and it did not belong to tlie grantee, for he was dead. It did not descend to the heirs of the gran- tee, for there were no words of inheritance in the gi-ant; nor could it vest in his exec- utors, for no executor could succeed to a freehold. And if an estate for the life of an- other was granted to a man and his heirs, and the grantee died, his heir might enter and hold possession, and was called a spe- cial occupant as having a special exclusive right, by the terms of the gi-ant, to enter upon and hold the land. The heir was not regarded as taking by descent, and if sued upon the bond of his ancestor he could plead riens per descent, as those estates were not liable to the debt of tlie ancestor. To rem- edy these evils the statute of 29 Car. II. en- acted that sucli estate pour autre vie should be devisable, and in case no devise thereof should be made, the same should be charge- able in the hands of the lieir if it came to him by reason of a special occupancy as as- sets, by descent, as in case of lands in fee simple, and in case there was no special oc- cupant thereof, it should go to the executors and administrators of the party who had the estate by virtue of the grant, and be assets in their hands for the payment of debts. 2 Bl. Comm. 258, etc., and notes; Williams. Ex'rs, 1-69; 4 Kent, Comm. 26. This stat- ute was enacted in this state, leaving out the provision of the act of 29 Car. II. as to the special occupant. 1 Rev. Laws, p. 365, § 4. It directed that the estate, if not devised, should go to the executors and administra- tors of the party who had the estate, to be applied and disti'ibuted as part of the per- sonal estate. The only object of these stat- utes was to prevent the land being taken l\v a special occupant who coiild not be made liable for the value of the land as heir, in payment of the debts of his ancestor, and to provide for the application of the estate to the payment of the debts of the one who held the estate, or the distribution of it amongst his next of kin. They did not de- stroy the estate, nor were they designed to have that effect. It is a maxim in law that an estate which once existed must continue to reside somewhere. It cannot be anni- hilated. Livingston v. Proseus, 2 HiU, 529. The latter part of the provision of the re- vised statute, (1 Rev. St. p. 722, § 6,) "that an estate dm'ing the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real," could only have been adopted to characterize the estate for the piu'pose of passing it to the executor or administrator of the testator or intestate. Clearly it must have been intended that the whole estate should pass to such executors or administrators, and after it came to the executors or administrators it would still be an estate for the life of another, and so a freehold estate. In Doe ex dem. Blake 92 ESTATES IN REAL PROPERTY. V. Luxton, 6 Term R. 291, Lord Kenyon says: "An estate per autre vie partakes somewhat of the nature of personal estate, though it is not a chattel interest. It still remains a freehold interest for many pur- poses, such as giving a qualification to vote for members of parliament, and kill game, and some others. A will to dispose of it must always be attested by these witnesses, under the statute of frauds." And in 3 Russ. 230, it was held that such an estate was a perfect freehold, even in the hands of the executors of the former owner of the es- tate. Chancellor Kent says, in 4 Kent, Comm. 27, such an estate "is a freehold in- terest sub modo, or for certain purposes, though in other respects it partakes of the nature of personal estate." In the hands of the grantee of the executor or administrator it was the same freehold estate. This was held in the case of Roseboom v. Van Vech- ten, 5 Denio, 424-426. . A freehold estate can only be conveyed by deed. 1 Rev. St. p. 738, § 137; Watk. Con v. 31. The referee finds, and concedes in his opinion, that at the date of the conveyance by Mrs. Mantany to the plaintiff, the defendants were in ac- tual possession of the lands, claiming title under the assignment of the lease from Wil- liam Mantany. The claim of the defendants, therefore, was of a freehold estate. To con- stitute an adverse possession it is not neces- sary that the title under which the party claims should be a good one, but simply that he should enter under color and claim of title exclusive of any other right. Rose- boom v. Van Vechten, 5 Denio, 426; Liv- ingston V. Pi-ru Iron Co., 9 Wend. 517. The possession must be adverse to the one who is entitled to the possession. Clarke v. Hughes, 13 Barb. 147; Vrooman v. Shep- herd, 14 Barb. 450, and authority cited. If a lessee for life or years be ousted of the land by a stranger, and after ouster and be- fore his entry he surrenders to his lessor, it is not a good surrender, for he has but a right, at the time of the surrender. Perk. § 600. In the case cited last above, (14 Barb. 453,) Hand, J., says: "When the lessee for life is disseised, the rule in relation to sur- renders prevails, and his conveyance is clear- ly void as a surrender." The same rule pre- vails as to a grant to any other person than the lessor. The learned referee seemed to think that the administrators of James Man- tany could not have maintained ejectment against the grantee^ of William Mantany. In this he is clearly mistaken. They had an estate in the land, and were entitled to the possession; and this is all that is neces- sary to maintain ejectment. An executor may maintain ejectment when the testator had a lease for years, or from year to year, upon an ouster after his death. Williams. Ex'rs, 748; Slade's Case, 4 Coke, 95; Mo- reron's Case, 1 Vent. 30; Doe v. Porter, 3 Term R. 13; Rose. Act. 545; Doe v. Brad- bury, 16 E. C. L. 115. The action should have been brought in the name of the ad- ministrators of James Mantany. Livingston V. Proseus, 2 Hill. 529. For these reasons the judgment should be reversed, and a new trial granted, with costs to abide the event. POTTER, J., concm-red. BOCKES, J., dis- sented. CURTESY. 93 BARR V. GALLOWAY. (Fed. Cas. No. 1,037, 1 McLean, 476.) Circuit Court, D. Ohio. July Term, 1839. At law. Scott & Leonard, for plaintiff. Stansbury & Bond, for defendant. OPINION OF THE COURT. The plain- tiff [David Barr's lessee] gave in evidence a patent from the United States to Charles Bradford for the land in controversy, dated the 14th May, 179(5. The patentee died with- out issue, leaving Henry G. Bradford, Charles H. Bradford, Elizabeth J. Bradford, and Fielding M. Bi-adford his heirs at law. Hen- ry and Charles died intestate and without issue. Elizabeth intermarried ■nith John Fin- ley. They had two children, Henry Heath Finley and Elizabeth J. Finlej\ The latter intermarried with David Barr, the lessor of the plaintiff, and is now deceased. The plaintiff also gave in evidence a deed to him for the land from Heniy Heath Finley, and here he rested his case. The defendant [.Tames Galloway, Jr.,] gave a deed for the land in evidence from Fielding M. Bradford and John Finley, the husband of Elizabeth J. Bradford, and father of Hen- ry Heath Finley, and of the wife of the lessor of the plaintiff; which was executed the 29th November, ISl.j. The wife of the gi-antor John Finley, died before the execu- tion of this deed. Possession was taken by the defendant a short time after the date of this deed, and there is no proof of a prior possession. In the argument of the case it was insisted, that no Interest passed under the deed from John Finley to the defendant; as it was made subsequent to the death of his wife, and there is no evidence of actual seisin, which is necessary to be shown by the hus- band to enable him to claim the land con- veyed, as tenant by the curtesy. And it is also insisted by the plaintiff, if seisin in fact, by the husband, during the life of his wife, were not necessary, yet it is incumbent to show that at the time of the conveyance there was no adverse possession. Before deeds or feoffments were used for the conveyance of land, livery of seisin was the only evidence of title. And this livery was required to be made by entering upon the laud, and there in the presence of the vicinage to deliver the possession. The no- toriety of the act afforded the only evidence of title, for the whole rested in the mem- ory of the witnesses, called to observe the ceremony. And after the invention of deeds and other written evidence of title, the an- cient principles of the common law were only departed from so far as to consider the instrument, not as the title itself, but as the evidence of title. And that it authorized an euti-j' on the land, without which the grantee covdd not convey the land, nor bring an action against a trespasser. Nor would it dc^ scend to his heirs on his decease. Without an entry, except in cases which shall be hereafter noticed, he could not bring an ac- tion on the title of the land. 1 Co. Litt. p. 29, c. 4, § 35. "Tenant, by the curtesy of England, is, where a man taketh a wife seised in fee simple, or in fee tail general, or seised as heir in tail special and hath issue by the same wife, male or female born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land dm-ing his life by the laws of England." "And first of what seisin a man shall be tenant by the curtesy. There is in law a twofold seisin, viz: a seisin in deed, and a seisin in law. And here Littleton intendeth a seisin in deed, if it may be attained tmto, as if a man dieth seised of lands in fee simple or fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue and dieth before any entiy, the husband shall not be tenant by the curtesy; and yet in this case she had a seisin in law; but if she or her husband had during her life entered he should have been tenant by the curtesy." "But if a man seised of an advowson or rent in fee hath issue a daughter who is mari'ied and hath issue and dieth seised, the wife, before the rent became due, or the church became void, dieth, she had but a seisin in law, and yet she shall be tenant by the curtesy, because she could by no means obtain to any other seisin. But a man shall not be tenant by the curtesy of a base right, title, use, or of a reversion or remainder expectant upon an estate of free- hold, unless the particular estate be deter- mined or ended dm-ing the coverture." 1 Coke, 123. By the common law lands or ten- ements cannot pass but by solemn livery, or matter of record, or by sufficient writing, if the thing lies in grant. The wife at common law was endowable where there had been no actual po.ssession, and the reason is, that during coverture she could not take possession of the lands of her husband. 2 Co. Litt. p. 3.jS, § G81. "For tenant in freehold in land is he who, if he be deprived of the freehold, may have an ass'ize, but tenant in freehold in law before his entry, in deed shall not have an assize. And if a man be seised of certain land, and hath issue, a son who taketh wife and the father dieth seised, and after the son dies before any entry made by him into the land, the wife of the son shall be endowed in the land, and yet he had no freehold in deed, but he had a fee and freehold in law." Under the common law, actual seisin was necessar3% to enable the husband to claim as tenant by the curtesy. But this rule was not inflexible. It yielded to circumstances, as in the case of an advow!?on or rent, or where an entry is prevented by force. 2 Co. Litt. §§ 417, 418. In like manner if a man have a title of enti-y into lands, but dare not enter for fear of bodily harm, and he ap- proach as near the land as he dare, and claim 94 ESTATES IN JREAL PROPERTY. the land as his own, he hath presently, by such claim, a possession and seisin in the lands, as well as if he had entered in deed. 2 Co. Litt. § 419. And, under some circum- stances, living within view of the land, will give the feoffee a seisin in deed, as fully as if he had made an entry. 1 Co. Litt. p. 29, c. 4, § 35. If an estate of freehold in seign- ories, rents, commons, or such like, be sus- pended, a man shall not be tenant by the curtesy, but if the suspension be but for years, he shall be tenant by the curtesy. As if a tenant make a lease for life of the tenancy to the seignories who taketh a husband and hath issue, the wife dieth, he shall not be tenant by the curtesy, but if the lease had been but for years he shall be tenant by the curtesy. And in 3 Atk. 436, the court say, lands on which there were leases for years existing and a rent in- curred, descended on a wife as tenant in tail general, who survived three months after the rent day occiu-red, though she made no entry, nor received any rent during her life, yet this was such a possession in the wife as made the husband tenant by the curtesy. In Barwick's Case, 5 Coke, 94, it was held that letters patent under the gi'cat seal, do amount to a livery in law, and must give actual seisin. As where a livery is made of one parcel of land in the name of others in the same vicinity. No livery of seisin is necessai"y to perfect a title by letters patent. The grantee in such a case takes by matter of record and the law deems the grant of record of equal notoriety with an actual tradition of the land in the view of the vicinage. The con- trary is the fact as to feoffments. The deed is inoperative without livery of seisin. Green V. Liter, 8 Cranch, [12 U. S.] 229. A perception of the profits, or, in more technical language, a taking of the esplees is evidence of seisin, but if seisin be estab- lished, this is presumed. Under the statute of uses the bargainee without entry or livery of seisin, has a complete seisin in deed. Harg. Co. Litt. 261, note. In most of the states of the Union statutes have been adopt- ed, if not in the same language, to the same effect, as the statute of uses. The delivery of the deed is substituted for the ancient form of livery of seisin. And this is held to be a seisin in deed, where there is no adverse possession at the time. The question in the present case is, whether wild and unappropriated lands, patented by the government, can descend, to a female out of possession so as to invest her husband, after her decease, with a tenancy by the cur- tesy, where there was no entry diu-ing cover- ture, either by the wife or husband. The reason on which livery of seisin was insti- tuted, fails in this case. And it is a sound maxim that where the reason of the rule fails the rule itself can have no application. Why should a formal entry be made on land sit- uated in a wilderness, remote from human habitation? Such an entry could not be no- torious, as there is no vicinage to witness the act, or preserve the fact. If the law requires nothing in vain, it cannot require an entry under such circumstances. If an entry is dispensed with, where there is a lease for years, an advowson or rent, or where force is used to prevent, as above stated, is not the reason as strong, to excuse an entry on land in an uninhabited country? The law can never require an individual to do that which is either impracticable or unreasonable. And what could be more unreasonable or absiu-d than to require an entry on wild lands, to vest a complete title in the grantee? In the case of Green v. Liter, [8 Cranch, (12 U. S.) 229,] above cited, the com-t held emphatically, that an entry was unnecessary. And the same doctrine is laid down in 4 Day, 294. And in the case of Jackson v. Sellick, 8 Johns. 208, the court say, where a feme covert is the owner of wild and uncultivated laud, she is considered in law, as in fact, pos- sessed so as to enable her husband to become a tenant by the curtesy. An actual entry or pedis positio by the wife or husband, din-ing the coverture is not requisite to the comple- tion of a tenancy by the curtesy. This is be- lieved to be the correct rule as generally rec- ognized in this country. Adhering to what they conceive to be the common law on the subject, the court of appeals of Kentucky hold that to sustain a writ of right, it is nec- essary for the demandant to show a pedis positio. And on this point that court holds a different doctrine from the supreme court of the United States. Applying this rule to all cases and under all circumstances, as tlie com-t of appeals are understood to do, they are unquestionably wrong. For it has been shown that there are exceptions to the rule. But it must be admitted that the rule is of general application, only subject, like most other general rules, to certain exceptions. And it is believed that wild and uncultivated lands in this country form as strong a case, for an exception to the rule, as any above stated. But admitting the rule here laid down as correct, the counsel for the plaintiffs insist that it is incumbent on the person claiming under a deed, to show, if not a pedis positio, at least that the land conveyed was wild and uncultivated, and that there was no adverse possession, when the deed was exe- cuted. That these being essential to the validity of the deed, the party who claims under it, must prove them. An adverse possession cannot be presumed against a deed. If it exist, it must be shown by the party who impeaches the deed and en- deavors to avoid it. In the case of Holt's Heirs v. Hemphill's Heirs, 3 Ham. [3 Ohio,] 238, the court say we have always held that a complete title may be executed, without an actual entry and where the grantee may never have been within hundreds of miles of the property granted. The delivery of the deed has been considered as giving posses- CURTESY. 95 sion in contemplation of law, anci the grantor is presumed to have entered, unless that pre- sumption is rebutted by facts wholly incon- sistent with it, as where the promises at the time of the grant, are in the actual seisin of a third person claiming title adverse to the grantor. In the case of Green v. Watkins, 7 Wheat [20 U. S.] 27, the supreme court ob- serve, where the demaudant shows no seisin by a pedis positio, but relies wholly on a con- structive actual seisin, in virtue of a patent of the land as vacant land, it is competent for the tenant to disprove that constructive seisin, by showing that the state had pre- viously granted the same land to other per- sons with whom the tenant claims no privity. And again in the same case, the court say in a writ of right, the tenant cannot give in evi- dence the title of a third person, with which he has no privity, unless it be for the pur- pose of disproving the demandant's seisin. In the case of Bush v. Bradley, 4 Day, 2'J8, the court held that proof of an adverse pos- session does not prevent the estate by the cm-tesy from attaching. But it is unneces- sary to consider this point, as It does not arise from the facts in the case. We think that the four requisites to con- stitute a tenancy by the curtesy, which are marriage, seisin, birth of a child, and death of the wife, have been sufficiently shown by the defendant to sustain the deed from Fin- ley to him. Indeed none of the requi-sites, except that of seisin, are disputed. And we are clearly of the opinion that there was seisin in deed in this case, which gave Finley a right to claim as tenant by the cm-te.sy; and consequently that his deed to the defend- ant conveys a life estate in the premises in controversy. 96 ESTATES IN REAL PROPERTY. THOMPSON T. MORROW. (5 Serg. & R. 289.) Supreme Court of Pennsylvania. Sept. Term, 1819. TILGHMAN, C. J. The record in this case presents two bills of exception, taken on the trial of this cause in the court of common pleas of Allegheny county. It is an action of dower, brought by Elizabeth Thompson, wid- ow of Moses Thompson, deceased. 1. A deed from the said Moses Thompson and Elizabeth his wife (the plaintiff), conveying in fee simple the land in which dower is now demanded, to Robert Henderson, under whom the defendant claims, having been given in evi- dence by the defendant, the court were of opinion, that by virtue of this deed, the plain- tiff was barred of her dower, although it did not appear, that she was privately examined by the justice of the peace who took her ac- knowledgment. This point having been de- cided in the case of Kirk v. Dean, 2 Bin. 341, and that decision recognised by this court in several subsequent eases, it is unnecessary, at present, to say anything more, than that we consider the law as settled. There was error, therefore, in the decision of the court of com- mon pleas. 2. After the conveyance by Moses Thompson to Robert Henderson, the land in which dower is claimed (being a lot of ground in the dty of Pittsburgh) was increased in value by the erec- tion of buildings; and the value was, besides, greatly increased by the growth of the city, and other causes distinct from any buildings or impi-ovements made by the purchaser. The court of common pleas were of opinion, that in assigning dower to the plaintiff, no regard was to be had to the gradual increase of value from causes unconnected with improvements made by the purchaser, but that the plaintiff was to have one-third, according to the value at the time of the alienation by Moses Thomp- son. It is a point of great impoi-tance to wid- ows, and to all those who purchase from mar- ried men without legal conveyances from their wives; we have, therefore, had it twice argued, in order that we might avail ourselves of the industry and talents of the learned counsel on both sides. Dower is a claim founded on law, and favor- ed by courts both of law and equity. It is a right flowing from marriage; and marriage is so highly regarded as to be a valuable consid- eration for the settlement of property on the wife. By marriage, the husband acquires an absolute right in his wife's personal estate, a right to the possession and profits of her real estate during the coverture, and also a right to her real estate during his life, in case he sur- vives her, provided he has issue by her, and the estate be of such a nature, that the issue may, by possibility, inherit it. In return for all this, the law gives to the wife, in case she surviTcs hpr husband, one-third, for her life, of all the real estate whereof her husband was seised at any time during the coverture, wheth- er she have issue by him or not, provided the estate be of such a nature, that any issue which might have been born, might, by possi- bility, have inherited it. The right of dower is inchoate, on tlie marriage, but not consum- mate till the death of the husband. No act ot the husband can lessen or defeat it. But, dur- ing the marriage, his right is absolute; he may improve the estate or suffer it to lie waste; erect buildings or pull them down at his pleas- ure. All that the wife can claim, where the husband dies seised, is one-third of the land in the condition in which it is found at the time when her title is thus complete, viz. at the death of her husband. But if, after her title is thus complete, and before assignment of dower, the heir erects buOdings or makes other improvements, the widow shall be en- dowed of one-third part of the estate, accord- ing to its value at the time dower is assigned to her; because it was the folly of the heir to- make improvements on land which he knew to be subject to dower. Co. Litt. 32a, § 36. The law is different, however, when the hus- band aliens the land during coverture, for there the wife shall derive no advantage from any improvement made by the alienee. There is no injustice in this, for, if the husband had never aliened, he might not have made these improvements. And it would affect tlie pros- perity of the country, by discouraging improve- ments in building and agriculture, if the wife were to be endowed of one-third of the value, including these improvements. This 1 take to have been the main reason for excluding the wife from any part of the value arising from improvements; although we find in the old books another reason assigned, that is to say, that as the tenant in dower, who vouches the heir on a warranty of his ancestors, must re- cover of the heir, according to the value of the land, at the time of the alienation, it would be unreasonable that the widow should recover of the tenant according to any other value. So far as concerns improvements made by the alienee, it is agreed that the tenants shall be protected from this hardship; but as to any value which may chance to arise from the gradually increasing prosperity of the coun- try, and not from the labor or money of the alienee, it would be hard indeed upon the wid- ow, if she were precluded from taking her share of it. She runs the risk of any deterio- ration of the estate, which may arise either from public misfortune or the negligence or even the voluntary act of the alienee; for al- though he destroy the buildings erected by the husband, the widow has no remedy, nor can she recover any more than one-third of the land as she finds it at the death of her hus- band. Perk. Conv. § 829. There are not many authorities on this sub- ject to be found in the English books, and such as we have are bottomed on decisions said to be reported in the Year Books. Mr. Hargrave, in his note on Co. Litt. 32a, § 36, cites 1 Hen. VII.; 17 Edw. III.; 17 Hen. III. "Dower," 392; 31 Edw. I. "Vouch." 2SS. "If the feoffee 1 DOWER. 97 improTe by buildings, yet dower shall be as it was iu the seisin of the husband, for the heir is not bound to warrant except according to the Talue as it was at the time of the feoff- ment; and so the wife would recover more against the feoffee, than he would recover in value, which is not reasonable." It is to be remarked that the decision in the cases here cited was upon improvements by buildings erected by the feoffee; the decision, therefore, was clearly right, although a better reason might, perhaps, be given, than that which is said to be assigned for it, iu the Year Books. In Jenk. Cent. pp. M, 35, ease 68, in which tlie Year Book 47 Edw. III. 22, is cited, we have the law laid down as follows: "On voucher, if Hi>ecial matter be showed by the vouchee, viz. that the land, at the time of the feoffment, was worth only £100, and now, at the time of the voucher, is worth £200, by the industry of the feoffee, the tenant shall recover only the vaJue, as it was at the time of saJe, for if the act of the feoffee has meliorated the laud, this shall not prejudice the feoffor in his war- ranty." Here is satisfactory reasoning indeed. The warrantee shall not, by any acts of his own, increase the responsibility of the war- rantor, for that would, in effect, be to alter the contract of warranty. But even granting that the tenant, who vouches the heir, can recover from him only according to the value at the time of the alienation, this being the true con- sti-uction of the warranty, the wife of the feoft'ee, who is no party to the warranty, ought not to be injured by it. So far as her rights are concerned, she ought not to be af- fected, but by those reasons of policy and jus- tice, which apply to her case; reasons which extend only to improvements made by the feoffee. As the Year Books are principally relied on, by those who contend that the widow is to re- cover according to the precise value at the time of the alienation, I endeavored to trace the subject through those books, but met with great difficulty, from the imperfection of the printed editions. I believe, I have seen aJl which have ever been printed but it appears by a report of a committee of the British house of commons appointed for ^the purpose of in- quiring into the state of the public records, in the year 180O, that although there are Year Books from the reign of Edward I. (inclusive) to the 1st of Henry VIII., yet, in the printed editions there are the following chasms: The whole reign of Edward I. (except some short notes in the exchequer); of the reign of Ed- ward III., ann. 11 to 16, ann. 19, 20, and 31 to 37; whole reign of Richard II.; of Henry v., ann. 3, 4, and 6; of Henry VII., ann. 37, 18, 19. And it appears from the same re- port, that in some instances the manuscripts contain different reports of the same cases. It is to be remarked in general of such reports as we have in these books, that they are often 60 short as to be obscure and unsatisfactory. GATES, R. P.— 7 With respect to dower, however, I have found no adjudged case in the Year Books confining the widow to the value at the time of tlie alienation by her husband where the question did not arise on improvements made after the alienation. In our own state it does not appear that the point now in question has been decide0\VER. 107 MOORE V. HARRIS et al. (4 S. W. 439, 91 Mo. 616.) Supreme Court of Missouri. May 16, 1887. Error to circuit court, Scott county Wilson Arnold and D. H. Mclntyre, for plain- tiff in error. L. Brown, for defendants in er- ror. SHERWOOD, J. Ejectment for lot 63 in the town of Benton. Both parties claim un- der Elizabeth Crow, as the common source of title. To show title in himself, the plain- tiff, after showing title in Albion Crow, the husband of Elizabeth Crow, by a commis- sioner's deed, dated October 28, 1845, next ofCered in evidence a deed from the collector of Scott county, Thomas S. Rhoades, to Elizabeth Crow, dated October 28, 1867, pro- fessing to convey to the grantee therein the lot in controversy, as the property of Albion Crow, and as sold because of delinquent taxes. Plaintiff next offered in evidence a deed for the lot in question, from Elizabeth Crow to himself, dated March 25, 1868, which deed, so far as necessary to copy it here, is as follows: "Know all men by these pres- ents, that I, Elizabeth Crow, of the county of Scott and state of Missouri, have this day, for and in consideration of the sum of seven hundred dollars, to me in hand paid by Joseph H. Moore, of the same county and state, granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said Joseph H. Moore the followihg described real estate, situate in the county of Scott and state of Missouri; that is to say, the south-east quarter of the north- east quarter of sec. 14, and the undivided half interest in the west half of the south- west quarter of sec. 12, in township 28 north, range 13 east, it being 40 and undi- vided half of 80 acres. Also, all the right, title, and interest which I have of, in, and to lots 91 and 121, in the town of Commerce, in said county of Scott; and also lot sixty- three, in the town of Benton, in said coun- ty of Scott." The next link in the chain of plaintiff's title was a deed to Elizabeth Crow, acknowl- edged October 29, 1870, executed by plaintiff as administrator of Albion Crow, and con- veying the lot in question. The claim of the defendant Harris is based on a warranty deed for the lot aforesaid, executed November 30, 1877, by Elizabeth Crow to Mary J. Harris, wife of said defend- ant Harris. 1. The deed of the collector of Scott coun- ty for the lot in dispute, executed to Eliza- beth Crow in 1867, was worthless, and con- veyed no title, and was void on its face, in consequence of its failing affirmatively to show that all the prerequisites which the law had prescribed, as to the fact of notice having been given of the delinquency of the land for taxes, had been complied with prior to judgment rendered by the county court; and in consequence of its failing affirma- tively to show that advertisement had been made of the intended sale of the laud for taxes in the precise method required by the statute. The statements made by the col- lector in his deed, that these things— these jurisdictional facts— had been done "accord- ing to law," or "in manner and form as di- rected by law," go for nothing in the esti- mation of the courts. The facts done must, in such cases, be set forth, in order that the courts may determine whether the respect- ive officers and courts have acted "accord- ing to law." Lagroue v. Rains, 48 Mo. 530; Spurlock V. Allen, 49 Mo. 178; Large v. Fish- er, Id. 307. The bill of exceptions shows that this deed was admitted in evidence, despite the ol)jec- tions of the defendants. The judgment for plaintiff, however, recites that it was final- ly excluded from the consideration of the jury, by order of the court. This recital, if true, should have been preserved by the bill of exceptions, the office of which is to pre- serve all matters of mere exception. I judge, however, from the first instruction asked by, and refused, the defendants, that the court did not regard the collector's deed as void on its face. It was thus void, as already seen from the authorities cited, and no title passed to Elizabeth Crow by reason thereof. 2. I now come to consider the effect of the deed to plaintiff" of date March 25, 1868, whose recitals have already been in sub- stance set forth; for on this deed plaintiff's j paper title exclusively depends. I think it quite too plain for argument that the statu- tory covenants of "grant, bargain, and sell" do not extend to nor include the lot in ques- j tion. If this be true, then the deed just mentioned, so far as concerns lot 63. is in effect a bar^ quitclaim deed, and no after- acquired title of Elizabeth Crow could in- ure to the benefit of plaintiff. Besides, it already appears that at the time the deed of March 25, 1868, was made, the only title Elizabeth Crow had in the premises was that of a dowress, whose dower remains unassigned. The authorities agree that in such case, that the legal title of a dowress does not pass by her deed. The only right or interest thereby passing Is one which may be enforced and effectuated in equity. 1 Washb. Real Prop. (4th Ed.) 303; 2 Scrib. Dower, 40, 43. Of course these remarks are not intended to apply to the case of a dowress who releases her dower right to the terre-tenant, or one in possession of the lands, or to whom she stands in privity of estate. Washb. supra; Scrib. Dower, 40. The only right of interest, therefore, which plaintiff acquired by reason of his deed, as aforesaid, was one vesting in action only, so far as the views of a court of law are concerned. What a court of equity would do in the premises does not matter, as in 108 ESTATES IN REAL PROPERTY. this action the plaintiff must recover on the legal title, and not on uneffectuated equities. 3. Nor did the plaintiff gain any title to the premises by reason of the operation of the statute of limitations, since his possession was not adverse and continuous for the re- . Wilson V. Albert, quisite statutory period. 89 Mo. 537, 1 S. W. 209. As this cause was not tried in conformity to the views here announced, the judgment is reversed, and the cause remanded. All concur. DOWER. 109 FREE et al. v. BEATLEY. (54 N. W. 910. 95 Mich. 426.) Supreme Court of Michigan. April 21, 1893. Appeal from circuit court, Van Burcii county, in chanceiy; George M. Buck, Judge. Suit by John W. Free' and :Mulford D. Buskirk against IMartha B. Beatley to remove cloud on title. A decree was entered in favor of complainants, and defendant appeals. Af firmed. Osborn & Mills, for appellant. Crane cV Breck, for appellees. GRANT, J. The land in which defendant now claims tlie right of dower was sold un- der the decree of this court in Killefer v. Mc- Lain, 7S Mich. 249, 44 N. W. Rep. 405, and was bid in by the complainant Free. The sale was confirmed, and the commissioner's deed exe- cuted to Free, who subsequently deeded a half interest therein to his co-complainant. Complainants went into pos.session, and, subse- quently learning that defendant claimed an interest in the land, filed their bill to remove the cloud from their title. The facts neces- sary to a determination of the question are these: Defendant's former husband, Mr. Nash, was the owner in fee of the land here in controversy, upon which was a water- power saw and stave mill. One Bi'iggs was also the owner in fee of adjoining lands, upon which were a water power and grist mill. These properties were of about equal value. January 2, 1882, Briggs and Nash entered into a copartnership agreement, by which they luiited these two properties, and agreed to carry on the entire business as copartners. After specifying the character of the business to be carried on, the written agreement stated as follows: "For that purpose we do agree and hereby actually put into the said busi- ness the grist and flouring mills now owned by said Briggs, * * * known as the 'Cen- tral Mills,' and the realty, machinery, and at- tachments thereto, and the property known as 'Nash's Stave and Heading Factoiy and SawmiU,' and the machinery in the same con- nected therewith, and also two hundred and forty acres of land owned by said Nash; * * * each of said parties to quitclaim to I he other one equal imdivided half of the lands and property above described belonging to each, so that the title to said property shall be vested in said parties jointly." Pur- suant to this agreement, deeds were executed and exchanged upon the same day, in the ex- ecution of which their wives respectively joined. Defendant understood the entire transaction, and the purpose for wliich these deeds were executed. The partnership was dissolved by the death of Nash. Briggs stiU continued to carry on the business imtil his death. Subsequently his executors filed a bill in chancery for an accounting, for a sale of the partnership assets, and for a division of the surplus, if any remained. Killefer v. Mc- Lain, 70 Mich. 508, 38 N. W. Rep. 455. The court there held that the whole of the real estate was put into the firm, and constituted firm assets. Defendant was made a party defendant to that siiit. She made no defense, and as to her the ])ill was taken as confessed. She was appointed guardian ad litem for her infant child in that suit, and was a witness. 1. By the agreement of copartnership, and the deeds executed pursuant thereto, the en- tire land of Briggs and Nash became partner- ship property. The wife of each thereby be- came entitled to dower in the entire land after the payment of the partnership debts. The entire land was used and treated as part- nership property. The defendant so under- stood it, for she testified on the hearing in the other suit that she understood that she and her child were entitled to half of the mill property. 2. She was made a party to the former suit. If she claimed any interest in the land it was then her duty to assert it, and have that interest determined. The sole object in making her a party was to ascertain her rights therein, if she claimed any. The court expressly determined and decreed that the land was a part of the firm assets. Free, the pui'chaser, therefore had the right to assume that she neither claimed nor had any interest in the property except that arising from partnership relations. Even had she then been possessed of any right of dower independent of the partnership, she must be held estopped from now asserting it, because she did not assert it when she had the oppoi'- tunity to do so. She was a proper party to the suit, because she had a contingent right of dower in the property. Free was an in- nocent purchaser, and he and his grantees will be protected. He purchased in reliance upon a decree rendered in a suit wherein all persons interested in the property were par- ties, and which was brought for the express purpose of adjudicating and determining all their rights. Decree affirmed, with costs. The other justices concurred. 110 ESTATES IN REAli PROPERTY. McKELVEY v. McKELVEY. (70 N. W. 582.) Supreme Court of Michigan. April 6, 1897. Appeal from circuit court, Barry county, In chancery; George M. Buck, Judge. Bill by Johnson McKelvey, by George O. Dean, his general guardian, against Kate McKelvey, for an injunction. From a de- cree for plaintifE, defendant appeals. Af- firmed. Walter S. Powers, for appellant Philip T. Colgrove, for appellee. HOOKER, J. The defendant, a young woman, married Johnson McKelvey some years a.go. At that time he was possessed of considerable property, and was quite old, and at his request she deeded to him her dower interest in 40 acres of land. Subse- quently she filed a bill for divorce and ali- mony, and prayed that he might be required to deed to her the premises mentioned. Ar- rangements were made whereby she agreed to accept a deed of said parcel and $35 in cash in lieu of all interest in his estate. It took the form of a stipulation, and, although dower was not specifically mentioned, it pro- vided that such payment and conveyance should be in full for all expenses and ali- mony against him. The complainant's tes- timony shows that she understood that it was in full settlement of all claims upon him. That also appears from the testimony of other witnesses. She afterwards brought ejectment to recover dower in the lands of McKelvey, and this bill is filed to restrain such suit The circuit Judge granted the prayer of the bill, and an examination o-f the testimony satisfies us of the propriety of his decree. The case is within the rule of Owen V. Yale, 75 Mich. 256, 42 N. W. 817, and Adams v. Story, 135 lU. 448, 26 N. B. 582. The decree is aUirmed, with costs of both courts. The other justices concurred. HOMESTEAD. Ill BLACK et al. v. SINGLEY. (51 N. W. 704, 91 Mich. 50.) Supreme Court of Michigan. March 18, 1892. Error to circuit court, St. Joseph county; Noah P. Loveridge, Judge. Ejectment by Sarah E. Blacli and others against John Siugley. Defendant had judg- ment, and plaintiffs bring error. Reversed, and judgment entered for plaintiffs. Howell, Carr & Barnard, for appellants. R. R. Pealer and G. P. Doan, for appellee. McGRATH, J. This is ejectment by the lieirs of Eliza Dickinson, claiming under a deed from Abner :\roore, executed in 1852. Eliza Dickinson gave back a life lease. Moore died in 1809, leaving defendant in pos- session, and this suit was commenced in 1870. Moore's wife died some time between 1855 and 1857. Moore came to Michigan some time in 1834, leaving his wife and four children in Pennsylvania. Two of the chil- dren came to Michigan and lived for a time with Moore, but the wife never came, and never resided in Michigan; nor is there any evidence that any correspondence ever pass- ed between husband and wife; nor does it appear that Moore ever returned to Pennsyl- vania, even to attend his wife's funeral. One witness who knew the family in Penn- sylvania, and had removed to Michigan, and lived in the neighborhood, says that in 1S42 or 1843 Moore said to him that "when he got ready and means he expected to fetch his family out." Other witnesses say that in 1844 and 1845, and again in 1858, 1859, and 1860, Moore said that he had left Penn- sylvania with the intention of never living with her; that he could not live with her there, and would not here. There is no evidence that his wife ever expected or intended to live in Michigan. Eliza Dick- inson lived with Moore as his housekeeper from 1847 to 1867. The consideration nam- ed in the deed is $800. The trial court in- structed the jury as follows: "It is conced- ed, gentlemen, by the evidence, that this wife never lived in the state of Michigan, but that she lived in the state of Pennsylvania. Now, the question which I submit to you is wheth- er this forty acres of land in question was, at the time it was conveyed or attempted to be conveyed to Eliza Dickinson, the home- stead of Abner Moore, and whether he in- tended it as his home. If you find that it was his homestead, and that he intended that forty acres of land for his home, then I in- struct you that your verdict must be for the defendant. * * * The plaintiffs claim that this was not the homestead of Abner Moore; that he did not intend it for a home; that he was not living with his wife, and did not in- tend to live with her, but that he had aban- doned her when he came from Pennsylvania here; and that he did not regard it as a home- stead. On the other hand, the defendants contend that he came to the state in 1834, and some years afterwards he went on this piece of laud, then in a wild state, and im- proved and put buildings upon it, and intend- ed to make it his home. The evidence which was admitted— and there was some of it giv- en on both sides as to whether he intended to bring his wife here— may be taken into consideration by you upon this question as to whether he intended to make this forty acres his home. The defendants, as I have stated to you, allege that this was his home- stead; that he intended to make it his home- stead; and any attempted alienation of it without the signature of his wife to the deed of alienation would render that deed to Mrs. Dickinson void. I instruct you that the bur- den of proof would be upon the defendants to show that this was a homestead, and in- tended by Abner Moore to be his home, be- cause that is the defense they set up as against this ownership by Abner Moore and the conveyance to Eliza Dickinson. * * * If you find that he was a married man at the time he alienated it, or attempted to alienate it, to Eliza Dickinson, and intended it for a homestead, then I instruct you that the deed to Eliza Dickinson would be void, because his wife, notwithstanding she was not domi- ciled in this state, but in the state of Penn- sylvania, did not join him in the deed. If you so find that this was his homestead, and he intended it to be at this time, then, as I instructed you before, your verdict shall be for the defendant. If you find it was not a homestead, that it was not intended by him to be a homestead, at the time he made the deed to Eliza Dickinson, then I instruct you that you would convey a good title, and that these plaintiffs would be entitled to recover." Under these instructions the jury found for defendant, and plaintiffs appeal. The instructions were clearly erroneous. Tlie case is ruled by Stanton v. Hitchcock, 64 Mich. 316, 31 N. W. 305. Eliza Dickin- son was a bona fide purchaser for value. In view of the conveyance to her, it cannot be claimed that Moore intended to assert or pre- serve his wife's homestead rights in these premises. As is said in the case cited: "Un- der our legal regulations, no imaginary or im- puted intention can supplant the actual in- tent. It would be little short of absurdity to hold that Hitchcock could at the same time contemplate the occupancy of the house as the home of his second wife and also of the first." "The object of the constitution is not ambiguous. It is to protect that dwel- ling which has been the actual home of the family from such disturbance as will make them lose its enjoyment. It is confined, by its language, to the property actually occu- pied as a homestead by a resident of Mich- igan; and, if the owner has a family, it is the actual home of that family which is pro- tected from seizure by creditors. There is nothing in the statute which contemplates that a wife who has never lived on the prem- 112 ESTATES IN KEAL PKOPERTY. ises, or claimed to live there, may, after her husband's death, claim such an interest by relation as will avoid his dealings with prop- erty which he never meant should be the home of the absentee, however much he may have wronged her. The statute which, after a husband's death, secures rights to a widow, is confined expressly to resident widows." "The first wife never contemplated it as her and her husband's joint home. * * * u must be remembered, not only that the character of any property as a homestead depends on intention, but that it may be entirely de- stroyed by a removal of residence. There is nothing in the law to prevent such removal at any time, and after it the property stands, like any other property, liable to sale or any other disposal by the owner at his pleasure. Under our laws, the sale by a husband whose Avife is non-resident carries the property free from any right of dower. Actual non-resi- dence in such case, in spite of the marital re- lations, cuts off any control over the sale of a complete title. * * * The law would be grossly 'tyrannical if it ties the husband's hands in the one case at least, and it cannot be possible that such consequences could have been designed by the constitution. It was designed to protect those who had sub- jected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to non- residents which could not, under any circum- stances, be of any use to them personally." The husband and wife, living separate and apart under circumstances such as these, might each claim a homestead, the one in Pennsylvania and the other in Michigan, but neither could claim both. Plaintiffs were en- titled to judgment. The judgment is there- fore reversed, and judgment entered here for plaintiffs, with costs of both courts, and the record remanded. The other justices con- curred. HOMESTEAD. 11? HOFFMAN V. BUSCHMAN et al. (55 N. W. 458, 95 Mich. 538.) Supreme Court of Micliigau. May 31, 1893. Error to circuit court, St. Clair county; William T. IMitchell, Judge. Ejectment by .John M. Hoffman against Bernard Buscliman, Careten Buschman, and Henry Alirons. There was a judgment in plaintiff's favor, and defendants bring error. Affirmed. James L. Coe, for appellants. Charles K. Dodge, for appellee. HOOKER, C. J. Plaintiff brought eject- ment to obtain possession of the undivided half of certain lands, described as follows, viz.: "The southeast quarter of the north- west quarter, and tlie southwest quarter of the northeast quarter, of section thirty -four, town seven north, range sixteen east." The case was tried without a jiUT. and a writ- ten finding of fact and law was filed. The brief of counsel for the appellants relies upon two points to reverse the judgment, viz.: First. The wife of Bernard Busehman was not made a pai'ty. Second. The sale imder the execution, upon which plaintiff claims title, was void. Exceptions upon each of the findings of fact and law were filed. The findings of fact cannot be disturbed, for the reason that the record does not show that all of the testimony taken upon the trial was included. nie court found that tbe premises were O'mied in common by Bernard Buscliman and Carsten Busehman; "that, at the time of the commencement of the action, defendant Ahrens was in possession of the whole of said premises, under and as the tenant of said Bernard and Cai-sten Busehman; • * * that, for some time previous, and up to the year 1884, said Bernard, with his wife and family, lived upon said lands, but in that year he removed therefrom to the city of Port Huron, where he, with his wife and family, have since Uved, and where he votes and claims his residence; but that he left some of his household effects on the lands claimed, and has, with said Carsten, occu- pied as a tenant." Under this finding it is claimed tliat the defendant Bernard and his GATES,R.P.-8 wife should be found to have homestead riglits in the west 40 acres. That these par- ties lived somewhere upon the premises, and had homestead rights in some part tliereof, up to April, 1884, is clear; biit, at the time of tliis levy and s;de, they had lived in Port Huron for upward of five years. When eject- ment was brought, Bernard asserted home- stead riglits in himself and wife. The bur- den of proving this right is upon the de- fendant. Amphlet v. Habbard, 29 Mich. 298. The retention of homestead rights, though the party live elsewhere tempoiu- rily, is possible. It is largely a matter of continuing intent, and is a fact to be proved like any other fact. There is nothing in tlie finding that shows the existence of such intent, but, on the contrary, all facts found are inconsistent with such design, and, in tlie absence of any other facts, justify the find- ing of law that the homestead was aban- done(J. Plaintiff derived title thx'oiigh an execution sale upon a transcript judgment. The pro- ceedings are conceded to have been regular, with two exceptions. The description in the levy wasi as follows, viz.: "The undi- vided one-half of the following descril)ed land, to wit: The southeast quarter of the northwest quarter, and the southwest quar- ter of the northeast quarter." In the subse- quent proceedings the description was as follows, viz.: "The undivided one-half of the southeast quarter of the northwest quar- ter, and the southwest quarter of the north- east quarter;" these proceedings showing that the interest of Bernard Busehman was involved. We think there is no room for question over these descriptions, which are identical, and could not mislead any one. A further point is made over the sale, the land having been sold as one parcel, which counsel for defendants claim was in violation of How. St §§ 6116, 6117. If two contig- uous 40-acre parcels, separated by a quarter line, and occupied as one farm, can be con- sidered withhi the prohibition of the st^it- ute, such sale was an irregularity, and can- not be questioned in an action of ejectment. Cavenaugh v. Jakeway, Walk. (Mich.) 344, and cases cited; Blair v. Compton, 33 Mich. 423; Campau v. Godfiy, 18 Mich. 45. The judgment must be affirmed. The other jus- tices concurred. 114 ESTATES IN REAL PROPERTY, MYERS V. WEAVER et al. (59 N. W. 810, 101 Mich. 477.) Supreme Court of Michigan. July 10, 1894. Appeal from circuit court, Kalamazoo county, in chancery; George M. Buck, Judge. Bill by Nellie J. Myers against Charles V. Weaver aud another to remove a cloud from title. Judgment for defendants, and plaintiff appeals. Reversed. Volney H. Lockwood, for appellant. Adel- bert D. Harris (Alfred S. Frost, of counsel), for appellees. McGRATH, C. J. Complainant's husband, in July, 1892, sold a house and lot which had been occupied as a homestead, and bought an adjoining lot, the title to which was placed in complainant A suit was com- menced against complainant and her hus- band in November, 1892, resulting in a judg- ment by default in December, 1892, upon a promissory note, given in July, 1891, for a debt of the husband's. A levy was made upon complainant's lot. This bill is filed to remove the cloud, and alleges that the lot levied upon was bought for use as a homestead. The lot was not built upon at the time of the levy, and the sole question is whether it was bought and held for that purpose. It appears that complainant's husband, John Myers, had in 18SS conveyed to defendant Weaver a certain other lot, and some time afterwards Weaver claimed that Myers had, at the time of the convey- ance, misrepresented the amount of a mort- gage subject to which the conveyance was made. Myers insisted that there was no misrepresentation, but that the amoimt of the mortgage was correctly given, and that he had agreed at the time of the convey- ance to reduce it by payment. In July, 1891, Myers and complainant joined in a note to Weaver for the difference, and as- signed to him as collateral a certain mort- gage, which was held by complainant and her husband against a farm which they had owned, and sold in November, 1888. The mortgage so assigned was subject to other mortgages, and, at the time of the as- signment, a prior mortgage was in process of foreclosure. The farm was subsequent- ly sold in that proceeding, and brought less than the amount of the prior mortgage. The written opinion of the trial court ap- pears in defendants' brief, from which it is clear that the circumstances connected with the sale of the lot to Weaver, and the subsequent assignment of the mortgaged secm-ity, were relied upon as affecting the credit given to the testimony of the com- plainant and her hiisband. We do not find in the record any reason for discrediting complainant's testimony. It is conceded that the lot sold to Tittle was the homestead. The title to the lot sold to Weaver was in John Myers. Complain- ant is not connected with any misrepre- Bentations made respecting the mortgage, and it does not appear that she knew any- thing about the amount thereof. She re- ceived no part of the proceeds of that sale, uor is she connected with any representa- tions made concerning the mortgage that was assigned as collateral to the note sued upon. It appears that the house and lot sold to Tittle were incumbered for $900; that the pm-pose of the sale was to obtain relief from that incumbrance, and get a cheaper home; that the intention was to build and occupy a house upon the lot in question; that, before the suit upon the note was brought, the location of the house had been staked out, stone had been drawn upon the lot for use in construction of the cellar, a party had been engaged to excavate, and negotiations had been had with a build- er relative to the construction of the hotLse, and there is evidence that the contract had been actually prepared. Respecting these matters, complainant's testimony is corrobo- rated by witnesses other than the husband. A real-estate agent testified that he wa^ told by Myers at one time that they de- sired to sell the lot, but the same witness testifies that Myers told him at the same time "that he was at work at the paper mill; that it was going to be a ways for him to go over there, and he made up his mind he would sell it, and buy over there, or build, or sometliing of that kind." The attorney who had the note in his hands for collection says that, a short time before the suit was brought, he saw complainant, and had a conversation with her respecting the payment of the note, in which he asked her how she came to buy the lot, and she replied that she bought it for speculation; that he then asked her what she was going to do with it, and she replied that, if she got a chance, she would sell it; "and I even went so far as to ask her if she was going to build upon it, and she said she was not." Complainaat denies that she made these statements. The clear weight of testimony is, however, in favor of complainant. The testimony of several witnesses, other than the parties in interest, as to things actually done upon the lot some time before the commencement of suit, tends strongly to corroborate the complainant's contention that the lot was held for use as a homestead. The decree below is therefore reversed, and a decree entered here for complainant The other justices concurred. HOMESTEAD. 115 HITCHCOCK V. MISINER et al. (G9 N. W. 22G.) Supreme Court of Michigan. Dec. IS, 1896. Appeal from circuit court, Muskegon coun- ty, in chancery; Fred J. Russell, .Judge. Bill by Joseph A. Hitchcock against Porter P. Misner and others to set aside an attach- ment levy. There was decree for complain- ant, and defendants appeal. Affirmed. Brown & Lovelace, for appellants. Nelson De Long, for appellee. MOORE, J. This is a proceeding to set aside an attachment levy made by defendants upon one-half of a city lot in Muskegon. The I'ecord shows that the attachment was made October 5, 1895, by creditors of a firm of which complainant was a member. This half lot, which was known as "No. 12 Muskegon Avenue," was bought by complainant, who was then a married man, in IS'JO. It was oc- cupied by himself and family for about 3% years. About a year and a half before the levy, complainant and his family moved to No. 53 Muskegon avenue, into a house then occupied by his father and his family, and continued to reside there until after the levy upon the property at No. 12 Muskegon avenue was made. At the time complainant moved to No. 53 Muskegon avenue, his father deeded the property located there to him. There was a mortgage upon the property of about $800, and some back taxes. It is the claim of com- plainant that he never intended to abandon his homestead at No. 12, but that he and his fam- ily always regarded it as his homesteiid; that he moved to No. 53 to enable him to care for Ins father, who was veiy old,— the house at No. 12 not being large enough to accommo- date both families. It is also his claim that, when No. S3 was deeded to him, his father was not able to pay the mortgage and taxes, and was afraid he would lose the prop?rty. He also claims that the arrangement between his father and himself at the time of the mak- ing of the deed was that the complainant should pay the mortgage and taxes, and tliat, when he could sell the property without sac- rificing it, he was to do so, and, after reim- bursing himself, was to pay the surplus to his father; that he expected to make the sale, and to carry out his agreement. It was the claim of the defendants that, when com- plainant moved to No. 53 Muskegon avenue, he intended to abandon his home at No. 12 Muskegon avenue, and that his return to No. 12 was because he was afraid that his cred- itors would levy upon it, and was for the piu'pose of defrauding his creditors, and that by giving mortgages to his mother-in-law up- on both pieces of property for an amount largely in excess of his debt to her, which mortgages were signed by complainant's wife, he has shown his purpose to defraud his creditors, and that these acts of the complain- ant and his wife characterize them as persons whose testimony ought not to be believed. The case was tried in open court, and the circuit judge granted a decree according t) the prayer of the bill. The complainant, his wife, and his father all gave testimony tend- ing to establish the tiiith of complainant's claim. The defendants controverted this tes- i timony. In Hoffman v. Buschman, 95 Mich. 539, 55 N. W. 458, Justice Hooker held that "the re- tention of homestead rights, though the party live elsewhere temporarily, is possible. It is largely a matter of continuing intent, and is a fact to be proved like any other fact." In Kaeding v. Joachimsthal, 98 Mich. 78, 56 N. W. 1101, it was held, in a case where the par- ties had been absent from the homestead six years, that, where there was a continuing in- tent to return to their home after the object of their temporary absence should have be n attained, such intent, if it existed, protected the homestead. These ca.ses are collated in the decision just quoted. See, also, the case of Myers v. Weaver, 101 Mich. 477. 59 N. W. 810. The circuit judge had the witnesses be- fore him. While there were some things done by the complainant, in his effort to keep his creditors from reaching his property, that are open to criticism, we are not inclined to say that the conclusion of the circuit judge that the property was exempt from levy is eiTo- neous. The decree is affirmed, with costs. The other justices concurred. 116 ESTATES IN REAL PROPERTY. CARUTHERS et al. v. CARUTHERS. (4 Brown, C. C. 500.) Court of Chancery. 1794. Mr. Graham and Mr. Stratford, for plain- tiffs. Mr. Lloyd and Mr. Agar, for defend- ant. ARDEN, M. R. This ia a case of great im- portance. The prayer of the bill is, that the defendant, the widow, may be declared not to be entitled to any right of dower, or free bench, or thirds of the personal estate of the intestate, her husband, but to be debarred of the same by the provision made her by the settlements, on the marriage; and the case is this: Previous to the marriage of the intestate with the defendant, who was an infant of the age of seventeen, a certain estate which was in the possession of his mother was settled on the mother for life, remainder to the husband for life, remainder, if she should survive the moth- er and husband, to the intended wife fotr life, as part of the jointure and provision intended to be made and secured for her, and in lieu, bar, recompense, and full satisfaction of all de- mands, or thirds at common law, or by custom or otherwise, of all and every the messuages, &c., as the husband might during the coverture be seised of. "No notice is taken in this settle- ment what was to be the other part of the jointure or provision to be made for her; but also before the marriage, Thomas Palling, who was the uncle of the husband, made a surren- der of copyhold, which was recited to be for making some further provision for the mar- riage, which was to the use of himself for life, remainder to the husband for life, remainder to the wife for life, if she should so long con- tinue a widow. It does not state it to be in bar of dower, but it is impossible not to see, that it was that further provision which was referred to in the former deed; and the ques- tion is, whether she is not bound to take these provisions in bar of dower. The husband afterwards acquired a larger copyhold estate, in which, by the custom of the manor, she takes the whole for life. It is contended, that by the case of Drury v. Drury, or Drury v. The Earl of Bucks (by which name it is reported in 5 Brown, Pari. Cas.), this principle has been determined, that an infant is bound at law by a jointure, and in equity will be bound by any covenant for securing a jointure, or by any collateral satis- faction, whether the same be of freehold or not: that the law has given guardians author- ity to bind infants by such a settlement. To the propositions thus largely laid down, I acknowledge I must make some objection. 2 Macph. Inf. (London Ed.) 523, 524. It is said, that great judges have laid it down, that by such a settlement, made during the in- fancy of a female infant, her own estate would be l)omid, and for this Oanjiel v. Buckle, 2 P. Wms. 242, and Harvey v. Ashley, 3 Atk. 607, have been cited. But in those cases this was not the point decided, although something like the principle- is laid down, and it appears to have been the opinion of those judges, that such was the power of guardians, and that, having the power of marrying their wards, they must have that of making the collateral contracts. But I hardly think it probable that Lord Hardwicke laid it down so broadly. It is impos- sible to apply the principle more strongly as to a female than to a male infant, and as to male infants no such doctrine has been laid down. There has been no such decision, nor was that proposition insisted on in Drury v. Drury. In Durnford v. Lane, 1 Brown, C. C. 106, the principle came in question; that was a new case; the husband there was an adult, the wife was an infant. It was an attempt to bind the estate of the wife. Lord Thurlow had great doubts upon the subject. He held the husband bound by his own covenant, leav- ing the question open, how far it bound the wife. But there is a case in which the question came directly before the court. It is Clough V. Clough, in Mr. Wooddeson's Systematic View (volume 3, p. 453, note). It was to carry into effect a settlement made before marriage of the widow, Patty Clough, while she was an infant. The decree declared that her estate was not bound by the marriage articles, and the bill was dismissed; that is an express de- cision by Lord Thurlow, that the contracts of male and female infants do not bind their es- tates, and though that is not a case of dower, it has weight in this case, and though it has not the sanction of the house of lords, it is the opinion of a great judge. The only question then is, whether the case of dower be an exception to the general rule. It is said, the case of Drury v. Drury is deci- sive, and that no judge ought to set up his pri- vate opinion against it. The fair question is, .what is decided by that case? It may be said that no judge should contra- dict that case, but that it will only apply where exactly the same case occurs. But I shall always hold myself bound, when I find a case so determined, not only by the case itself, but by all the principles which necessarily apply to it. I hold it a duty of a judge, where he finds a case determined by the house of lords, to hold himself bound by all the principles which were necessary to its deter- mination. What was the question there? Lord North- ington, when the case was before him, was of opinion that a jointure at law, though accom- panied with every requisite of a jointure, would not bind an infant. And, 2dly, that a cove- nant to pay the wife an annuity of £600 a year, not out of particular lands, would not bind her: from this decree the cause went to the house of lords. The first question on the point of law was put to the judges; the next question was, whether an equitable jointure would bind the infant. It was held tliat a jointure at law would bind, and that a cove- JOINTURE. 117 ■nant would be held equivalent in this court, though no particular lands were specified; be- cause, it was said, it amounted to the same thing; for if there were no lauds, it would be the same thing as if it was out of particular lands, and they were executed, then the wife would be entitled to her dower. So that she would have the jointure or the dower. In that case the settlement extended to settle her real estate, but there was no question or decision upon that. The house ordered a part of the personal estate to be set apart, to pay the an- nuity, but the widow would have had a right to have had the provision made in land, and the house of lords would have ordered lands to be set out, if she had pressed it. All the determination therefore in that case, is, that where the provision is made as efljoctu- al as if it was set out, it will be sulBcient, though it is not so. There was no question arose on that case, on the subject of election. By the common law, upon the marriage, the wife acquires a right to dower in the freehold, and a customary share in the copyhold estates of the husband, or a provision from the hus- band under the statute. It is said, that guardians have a power to bind the right of the infant, but I think Drury V. Drury did not mean to decide that. If the provision had not been certain, or if she was only to take upon a remote contingency. Before I perform an agreement, I must see that it is reasonable. Then, what is a jointure? Lord Coke de- fines it: "It is a competent livelihood of free- hold, for the wife, to take effect immediately after the death of the husband, for the life of the wife." Vernon's Case, 4 Coke, 2. I wish to know, what fair conclusion can be drawn from Drury v. Drury that there is any equity by which a woman would be obliged to take an uncertain interest in bar of dower. Here, non constat that one of the estates will ever be hers in possession; the other has fallen in, if she chooses to take it. Suppose she had had a jointure which turned out to be bad, I mean, which would not have afforded her the same advantage which she would have had from her dower, would that have bound her? In Drury v. Drury she had as certain a pro- vision as in her dower; therefore, I think Drury v. Drury decides, that where the pro- vision is equally certain with the dower, it is good. Would she have been bound by this in her husband's lifetime, whilst both the tenants for life were alive? If it is good at all, it must be so from the making of the settlement; but she could not be bound then. Any equitable provision which a woman takes, must be as certain a provision as her dower, not an uncertain provision which she may never enjoy. I do not say that if she had been adult, she might not have bound herself. She might have taken a provision out of the personal estate, or she might even have taken a chance, in satisfac- tion for her dower, acting with her eyes open; but an infant is not bound by a precarious in- terest. Lord Thurlow, in Durnford v. Lane, supra, a.nd in Williams v. Williams (1 Brown, C. 0. 152), held, that a settlement to bind an infant must be reasonable. This is not such an agree- ment as a court of equity can call upon her to confirm. The guardian is incautious where he attempts to bind the infant by a precarious provision. Declare her not bound by the settlements, and to be at liberty to make her election, to take the provisions made for her, or to take her dower and free bench, waiving the provi- sions; it being signified, that she consented to take the dower and free bench. The eldest son, as he suffers by her taking her dower and free bench, must have amends made to him by the copyhold estate settled by Palling. Referred it to the master, to take an account of the value of the freehold and copyhold es- tates, and reserved further directions till after the account taken. 118 ESTATES IN REAL PROFERTY. TAYLOR et al. v. TAYLOR. (33 N. E. 532, 144 111. 436.) Supreme Court of Illinois. Jan. 19, 1893. Appeal from circuit court, Peoria county; T. M. Shaw, Judge. Bill by Armenia J. Taylor against Charles E. Taylor and others for assignment of dower. Complainant obtained a decree. Defendants appeal. Affirmed. Armenia J. Taylor, widow of Burtis S. Tay- lor, late of Peoria county, deceased, filed her bill in the circuit coiu't of that county for the assignment of dower in lands whereof he died seised. The heirs at law of Burtis S. Taylor were made defendants, and they answered, de- nying that the complainant was ever entitled to dower in the lands whereof Burtis S. Tay- lor died seised, because, before her marriage with him, they entered into an agreement as follows: "This agreement, made and entered into this IStli day of October, 1883. between Burtis S. Taylor, of Prihceville, Peoria county, state of Illinois, party of the first part, and Armenia Pardee, of the city of New York, state of New York, party of the second part, witnesseth that, whereas, a man-iage is about to be had and solemnizeil between the said par- ties, and the said parties are desirous of mak- ing a settlement of their property, both real and personal, prior to said event, it is agreed between the parties that said party of the first part is to provide for the said party of the second part all the necessaries of life, includ- ing medical care and nursing during sickness, in all cases to support and care for her in such manner as his means will permit, during his life, and should she, the party of the second part, survive the party of the first part, then and in that case the estate of the said party of the first part shall pay the party of the sec- ond part the sum of two thousand (.$2,000) dol- lars in full payment and discharge of any and all claims she may have to dower in the real estate of the said party of the first part, or specific allowance as his widow, or interest or share she may have in his personal property, and is to be received by her in full discharge of any and all such claims, dues, or demands whatever. It is furtlier agreed between the parties that said party of the first part shall hold any and all of his real estate during the time of their married life, free and clear of any incumbrance or dower or homestead of the party of the second part, and. should it be- come necessary in the transaction of business for the party of the first part to sell or dis- pose of any of the real estate now owned by him, or which he may hereafter purchase, the party of the second part hereby agrees to sign all deeds relinquishing all right of dower and homestead she may have in and to any and all such real estate, meaning and intending by this agreement that each shall have and hold any real estate that they may have or own at the time said marriage is solemnized, or wliich ei- ther may subsequently purchase or obtain dur- ing said marriage, free and clear from the claims or control of each other, and to be owned and controlled in the same manner as though no mai'riage relations existed between the said parties. It is further agreed between the parties that, should said party of the sec- ond part wish to dispose of any real estate which she may own at the time of said mar- riage, or which she may subsequently obtain by purchase, devise, or otherwise, the party of the first part hereby agrees to sign any and all deeds of conveyance, thereby relinquishing any and all rights he may have to dower or home- stead in and to said real estate. It is further agreed between the parties hereto that, should any children be born of said marriage, and sur- vive the party of the first part, that said issue shall inherit all the estate of the party of the first part, equally with any issue the party of the first part may have from former mar- riage or marriages, the same as if no contract existed between the parents. It is further agreed between the parties that, should the party of the second part survive the party of the first part, the payment to her of the sum of two thousand ($2,000) dollars shall be made within two (2) j^ears from the decease of the party of the first part, and shall be made a pre- ferred claim against his said estate, and shall be paid out of the proceeds of his estate next to the fimeral expenses, and is hereby made a lien upon said estate until paid. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. Burtis S. Taylor. [Seal.] Armenia Jeane Pardee. [Seal.]" On final hearing, the court decreed that this agreement was free from fraud or vmdue influence, so far as shown by the evidence, except in so far as fraud or undue influence may be inferred from the fact that the said contract did not make a fair and reasonable provision for his wife upon his death, taking into account the circumstances of the parties and the condition of the estate of the said husband, but the same was inade- quate, inequitable, and unreasonable, and not such a contract as a covu't of equity will hold to be an equitable bar for the widow's dower, but the same does not bar her dower and home- stead. The decree further appointed commis- sioners to assign dower, directing them to as- sign dower to complainant in all the lands whereof Biu'tis S. Taylor died seised, giving her, without prejudice to the homestead rights of the minor child of the said Burtis S. Taylor, the homestead or dwelling house, if she so de- sired. The commissioners assigned dower, and reported their action to the court, which report was approved by the court. Damages were thereafter assessed to complainant for the de- tention of her dower amounting to ?880.20. The defendants bring the case to this court by appeal. McCuUoch & McCulloch, for appellants. W. T. Wliiting and L. D. Puterbaugh, for appellee. SCHOLFIELD, J. (after stating the facts). Excluding, as we must, on the objection of ap- pellants, the testimony given by appellee upon the nearing, there is no evidence in the record of the circumstances attending the making of JOINTURE. 119 this agreement. No one witnessed its execu- tion, and no one was informed that such an in- strument had been executed until long after its execution. Some expressions of Taylor and admissions of complainant that such an instru- ment had been executed are proved; but Tay- lor's expressions were as to the effect of the instrument, making no explanation of the cir- cumstances attending upon its execution; and the admissions of complainant are accompanied by the explanation that if she had known, at the time the instrument was executed, what she knew at the time of making the admis- sion, she would not have signed it. The par- ties were married four days after the date of this agreement.— October 22. 1SS3,— and Taylor died on the 30th of June, 1889. At the time of Taylor's death, he was seised of real estate estimated to be of the value of $28,000, of most of TNliich he was seised at the time the agreement was executed. His personal estate, at the time of his death, was estimated to be of the value of $13,000. How much of this he owned at the time the agreement was executed does not appear. The parties were cousins. Both had been previously married; he twice, and she once. She had one daughter, then mai-ried, and hving apart from her. He had three sons and three daughters, two or three of whom were minors, but not of a very tender age. The complainant was born and raised in the city of New York, and resided there until she came to Peoria county, shortly previous to her marriage. She had no property, either real or personal, and maintained herself by dress- making. Taylor had been a resident of Peoria county for many years, but we think there is competent evidence in the record clearly prov- ing that at the time this agreement was exe- cuted he knew that complainant had no prop- erty. There is not a particle of evidence in the record tending to slaow that it was antici- pated by the parties, when this agreement was executed, that the complainant would, or could in any understood way, acquire a separate propertj- subsequent to her marriage. In view of these facets that must be taken into consid- eration in connection with the making of the agreement, the agreement is one-sided, and un- fair to the complainant. It is a virtual relin- quishment on her part of dower in his real es- tate, and of her claim for a personal allowance in his personal property, and of what she would take in his personal estate under the statute of descents, for $2,000, to be paid to her within two years after his decease. Having no sepa- rate property, and the acquisition of none in contemplation, the surrender of his rights as to such property is meaningless. Nor do we agree with counsel that the provision that children to be born of the contemplated marriage shall in- herit equally with his other children amounts to a contract in behalf of such children. The language is: "Should any children be born of said marriage, and survive the party of the first part, said issue shall inherit all the es- tate of the party of the first part equally with any issue the party of the first part may have from former marriage or marriages, the same as if no contract existed between the parents," plainly intending not to restrict the power of disposition by sale or devise, but to leave the inheritance of his property, as respects his chil- dren by her, unaffected by the agreement; and so they were as well ofC without as with this stipulation. The sum to be paid is not above one half, if, indeed, it is that, of what com- plainant would have received as widow from the personal estate alone in the absence of any agreement; and it is to be received at a date no earner than she would have received it in the absence of an agreement. It is unneces- sary to say that complainant is not competent to enter into such an agreement. It may be conceded that she had the legal capacity to make such a contract, and that marriage was a sufficient consideration to support it; but, in the absence of clear and satisfaetoi-y proof, it is not to be presumed that she would, with full knowledge of all the circumstances, have en- tered into such a contract. Parties to an ante- nuptial contract occupy a confidential relation towards each other. Kline's Estate, G4 Pa. St. 124; Pierce v. Pierce, 71 N. Y. 154; Rockaf el- low V. Newcomb, 57 111. 186. While they may lawfully contract with each other where there is full knowledge of all that matei'ially affects the contract, yet, where the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises the presumption of designed concealment, and throws the burden upon those claiming in his right to prove that there was full knowledge on her part of all that materially affected the contract. Cases cited supra; Bierer's Appeal. 92 Pa. St. 267; Tierman v. Binns, Id. 248: Spurlock V. Brown (Tenn. Sup.) 18 S. W. 868 (not yet officially reported). The burden here Avas, therefore, upon appellants to prove by satisfactory evidence that appellee had knowl- edge of the character and extent of her intend- ed husband's propertj-, and of the provisions and effect of this instrument, or, at all events, that the circiunstances were such that she rea- sonably ought to have had such knowledge at the time this instrument was executed. In our opinion, they failed to make such proof. It is further contended that there is error in the de- cree in awarding the homestead to complainant as part of her dower, without recognizing the existing rights of William G. Taylor therein. In our opinion, this is a misapprehension of the effect of the decree. It expressly directs that the commissioners shall give her, "without prej- udice to the homestead rights of the minor child of the said Burtis S. Taylor," who is William G. Taylor, "the homestead or dwelling house of her husband," etc. The clause di- recting her to be let into possession is subor- dinate to this. She is to be let into possession of the premises "so assigned to her as dower;" that is, in those where William G. Taylor, the minor, has a homestead right, without preju- dice to that right, as well as absolutely unto those where there are no conflicting rights. The decree is affirmed. CRAIG, J., dissents. 120 ESTATES IN EEAL PROPERTY. TAPT V. TAFT et al. (two cases). (40 N. E. 860, 163 Mass. 467.) Supreme Judicial Court of Massachusetts. Worcester. May 22, 189.5. Case reserved from supreme judicial court, Worcester county; Lathrop, Judge. Actions by Emeline N. Taft against Lulce Herbert Taft and others, and by Luke Herbert Taft and others, executors, against Emeline N. Taft. The first of these cases was a writ of entry to recover one undivided sixth of a tract of land by virtue of an antenuptial agree- ment entered into between the plaintiff Em- eline N. Taft, and her husband, Jloses Taft, under which the plaintiff agreed to accept as her dower interest in the estate of her hus- band only one-sixth of his real estate. The second suit was a bill in equity for instruc- tions under the will to settle the rights of the plaintiff in the first suit under the will as it related to the contract. Emeline N. Taft claimed both under the antenuptial agree- ment and under the will. Case reserved. Hopkins & Bacon, for Emeline Taft. Hosea N. Knowlton, for residuary legatees. ALLEN, J. The principal question present- ed by these cases is VN^hether the provisions in the testator's will in favor of his wife were intended to be a substitute for her rights under the antenuptial agreement, so that by accepting the provisions of the will she is pre- cluded from claiming also under the agreement. By the antenuptial agreement, which was dated December 12, 1857, she was to continue to have and to hold all of her own estate, real and personal, after the marriage, and also such other estate as she might subsequently acquire in her own right; and, in case he should survive her, all of the above was to descend to her child or children. In case she should survive him, she was to be endowed in one-half part only of his real estate; that is, her dower was to be one-sixth part only instead of one-third part of his real estate; and she was to receive one-sixth part only instead of one-third part as her distributive share in his personal estate. She was also to release her rights of dower and homestead in case he should wish to convey real estate during cov- ertm-e; and, in case his heirs or other persons interested in his real estate after his death should wish to do so, she was to release her rights of dower and homestead on receiving a just equivalent therefor. This antenuptial agreement was not to apply to any house in which they might live at the time of his de- cease. There is nothing to show what amount of property she owned then or at any time thereafter. He died April 2, 1893. His prop- erty had largely increased dui'ing their life as husband and wife, and after his death it was appraised as follows: Personal property, $309,250; homestead, $9,000; other real es- tate, $6,800; being in all. $325,0.50. His debts were from $3,000 to $5,000. The residuary legatees contend that she has no such present interest in the real estate, other than the homestead, as to enable her to maintain a real action, because the contract does not amount to a jointure. The contract, however, does not purport to bar her right of dower wholly, but cuts it down one-half. She sur- rendered one-half her right of dower in all real estate he might die seised of, except the homestead. The agreement does not create an estate in her. The law creates the estate, which, by the agreement she gave up to the extent of one-half. They further contend that under the agreement she takes no in- terest in the personal estate, because the words used are that she shall receive one- sixth part only, instead of one-third part, as her "distributive share" of his personal es- tate; that the words "distributive share," in their legal meaning, relate only to an intes- tate estate, or to an estate made intestate as to a widow by her waiving the will; that this is not an intestate estate in either sense, and therefore that the contract gives her no right to any portion of his personal estate. Such we understand to be the contention in behalf of the residuary legatees. But this is too strict and technical a construction of the words used. The meaning is that she shall receive one-sixth part of his personal estate. In view of the contract, then, taken by itself alone, she would now be entitled to dower in the homestead, to a life interest in one-sixth part of the rest of his real estate, and to one- sixth part of his personal estate. Her share of the personal estate would amount to $51,- 541.67. If there were no antenuptial agree- ment, and no will, she, by law, would be en- titled to dower in all of the real estate, and to one-third part of the personal estate, which one-third would amount to $103,083.33. Mr. Taft's will is dated February 23, 1886. The value of his property at that date is not given. The will makes no mention of the antemiptial agreement, but gives to "my beloved wife" the use of the homestead for life; the furni- ture, etc., of the value of $1,000; the sum of $5,000; and an annuity of $1,200 during her life. To raise this annuity would require the holding of $30,000, reckoning the income at 4 per cent., which counsel on' both sides assume to be a reasonable rate. It is apparent that, if the provisions for her in the will are held to supersede the antenuptial agreement, she will get materially less than by the agreement, estimating the property at its appraised value after the testator's death. There is no inti- mation in the will that its provisions were in- tended to supersede the agreement. He could not cut down her rights under the agreement without her consent. We find nothing in the circumstances to show an intention of ask- ing her consent to any reduction' or change of her rights under the agreement. It seems probable, rather, that with the increase of his property he wished to do more for her comfort and enjoyment during life. To this end he gave her outright $5,000 in money, and furni- ture of the value of $1,000; the use for life of the homestead, instead of her dower therein; JOINTURE. 121 and what practically amounts to the income of $30,000 during her life. His own descend- ants will ultimately get the whole of this property, except the $.",000 in money and the furniture; and even with tlie addition of these provisions in her favor to her rights under the agreement she will get less from his es- tate than she would have got if there had been no agreement and no will. The result is that she has the right to take what is given to her by her husband's will in addition to what she is entitled to receive under the antenuptial agreement. She is entitled to judgment in the real action, and in the petition of the ex- ecutors instructions will be giver.' in accord- ance with tbis opinion. Ordered accordingly. 122 ESTATES IN REAL PROPERTY. THOMPSON et al. v. TUCKER-OSBORN. (69 N. W. 730.) Supreme Court of Michigan. Jan, 5, 1897. Appeal from circuit court, Lenawee county, in chancery; Victor H. Lane, Judge. Bill by Gamaliel I. Thompson, executor of the estate of John M. Osborn. deceased, and others, against Sarah A. Tucker-Osborn, for specihc performance of an antenuptial con- tract between defendant and deceased. From a decree dismissing the bill, complainants ap- peal. Reversed. Fellows & Chandler and Watts, Bean & Smith, for appellants. F. A. Lyon and L. R. Pierscu, for appellee. LONG, C. J. On October 3, 1891, John M. Osborn married the defendant. Mr. Osborn was at this time upwards of the age of 70 years. He had been married twice before; had retired from the banking business some years before; was suffering from a lingering disease. He had, some time before this, sub- mitted to an operation, by which a part of one of his feet had been removed. It was well known by his friends and those associated with him that it was a disease which must prove fatal in the near future, and was known as "senile gangrene." The defendant had been in Mr. Osborn's employ as a serv'ant woman and housekeeper for something like six years before the marriage. Slie had nev- er been married, and, prior to the time she commenced working for Mr. Osborn, had supported herself by going out to sei-vice. On the 16th day of September, before the mar- riage, Mr. Osborn, evidently in contemplation of the marriage, drew in duplicate an ante- nuptial conti'act, as follows: "This antenup- tial contract or agi'eement, made this 16th day of September, A. D. 1891, between John M, Osborn, party of the first part, and Sarah A. Tucker, party "of the second part, both of the township of Pittsford, county of Hillsdale, and state of Michigan, witnesseth: That the party of the first part, for the reason of a mar- riage to be consummated between and by the first and second parties hereinbefore named, does hereby agree and promise that said sec- ond party shall be supported from the estate of which I may die possessed for the term of her natural life, said support to be by pro- viding a home and such an amount monthly or quarterly or yearly as may be necessary to enable her to live in comfort, and equal to such as she has heretofore enjoyed, and, in case of sickness, such added amount as may be necessary for care, medical attendance, and other necessary expenditures. The party of the second part, in consideration of the above- named provisions for support, hereby accepts the same as marriage settlement, and hereby waives all rights in a will now made by first party, and all rights of dower of real estate, and all rights In the personal estate of which said first party may die possessed. It is hereby further agreed between said parties that the delivery of this contract, duly signed, shall be a bar from any claim from either party as to services, money, or support, or any other claim whatever existing at the time this contract shall be executed. It is further agreed that funeral expenses and rights of burial are con- sidered as an inherent part of this contract. It is further agreed that this contract holds good only so long as second party shall re- main the widow of said first party. The above contract is in duplicate, one retained by each party. In witness of the above, the par- ties thereto hereby subscribe their names and affix their seals, this 13th day of September, A. D. 1891. John M. Osborn. [L. S.] Sarah A. Tucker. [L. S.] Witnesses: S. Van Etta. H. S. Van Etta." On the 30th day of Sep- tember, three days before the marriage, this contract was signed in duplicate by the par- ties, in the presence of two witnesses. One of these contracts was placed in an envelope marked "John M. Osborn, Personal Matter," in Mr. Osborn's handwriting. The other was placed in an envelope marked "Sarah A. Tuck- er." Both envelopes were sealed, and placed in an envelope whch was marked "John M. Osborn's Will," and were left in a trunk with Mr. Thompson, who was formerly pai'tner of Mr. Osborn, at Mr. Thompson's bank. Be- fore Mr. Osborn's death, he executed a will, clause 2 of which, it is claimed, was made for the purpose of carrying out the terms and provisions of said antenuptial contract, and is as follows: "Second. I give, devise, and be- queath to my good wife, Sarah A. Osborn, the occupancy, use, income, and profits of all the residue of my said homestead farm which is left after deducting such thereof as I have given and devised to my nephew, said Gama- liel O. Baker, in the first clause of this, my will, for and during the term of her natural life, with the right to have, during her occu- pancy thereof, her necessary firewood from that part of my homestead farm devised in the fii-st clause of this, my will, to Gamaliel O. Baker, as an estate for life, but not ta commit any waste thereof. Also, I give, de- vise, and bequeath to my said wife, Sarah A. Osborn, to be hers absolutely, all my house- hold roods and my mare, named Nelly, and my sorrel colored horae, named Dan, and my two phaetons, and the two single harnesses, blanket, and whip used with them; also the jack used to oil the phaeton with. Also, I place in trust in the hands of my executor the sum of five thousand dollars, to be used according to the good judgment and discre- tion of my executor, so much thereof as may from time to time be necessary, in with my other devises and bequests to her, for her comfortable support in health and sickness during her natural lifetime, and for her fu- neral expenses; but, if my said wife shall again marry, then from and after the date of her marriage said support, and also her rights of occupancy, use, and enjoyment of the land and premises hereinbefore devised to her, shall cease and be ended, and the same shall then revert; and it is my intention and my will that the provisions that I have made for JOINTURE. 123 my said wife in this, my last will and testa- ment, shall be received and aeceptetl by her in full satisfaction and bar of dower in all my real estate." Mr. Osborn died on the 9th day of December, 1803, and his will was admitted in regular form to probate. Previ- ous to the making of this antenuptial con- tract, and on October 22, 1889, Mr. Osborn gave the defendant a paper which, together with the indorsement thereon, is as follows: "$500. One year from date, for value receiv- ed, I promise to pay Sarah A. Tucker five hundred dollars, the same to be paid to the above only, not transferable by assignment or descent of property. John M. Osborn. Hudson, Mich., October 22nd, 1889." In- dorsed thereon: "I hereby extend the within note on the terms as stated therein, payable at any time, at the option of J. M. Osborn or by his estate when settled. [Signed] Sarah A. Tucker." The indoreement was made be- fore the antenuptial contract, and before the marriage. These are the facts as claimed by com- plainants, and as found by the court to be true upon the hearing of said cause in open court. After the probate of the will and the appointment of commissioners on said estate, the defendant, repudiating the con- tract, and denying the validity thereof, and refusing to accept the provisions made for her in said will, presented said note to the commissioners, as a claim against the es- tate of the deceased, and had the same al- lowed, from which allowance John M. Baker, one of the complainants, appealed to the circuit court for the county of Hillsdale, where said appeal is still pending. Defend- ant also brought suit in the circuit court for the county of Hillsdale, in ejectment, to re- cover what she claimed to be her dower estate in the land owned by the deceased in Hills- dale county, and also brought suit in the cir- cuit court for the county of Lenawee, in ejectment, to recover what she claimed to be her dower estate in the land owned by the deceased in that county at the time of his death. The executor named in said will and the other complainants (legatees named in said will) filed this bill, asking for a specific performance of said antenuptial contract, and to restrain the defendant from further prosecuting her claim before the commis- sioners and the ejectment suits. The testi- mony was taken in open court, and on March 14, 1896, the court entered a decree dismiss- ing the bill, but finding the following facts: "First. That John M. Osborn died at the time alleged in said bill of complaint, the owner of the real estate described and set forth in said bill of complaint. Second. That on the 30th day of September, 1891, the said John M. Osborn and said Sarah A. Tucker (now Sarah A. Tucker-Osborn, the defend- ant in this suit) made and executed and de- livered the antenuptial contract set forth and described in said bill of complaint. Third. That said antenuptial contract was made by the said parties with a full under- i standing of its objects, effects, and pur- poses. Fourth. That the said Sarah A, Tucker was then possessed of such informa- tion by which she knew the extent and value of the property of said John M. Os- born. Fifth. That the said John M. Osborn and said Sarah A. Tucker afterwards inter- married. Sixth. That the said John M. Os- born, in his lifetime, made and executed the will set forth and described in said bill of complaint. Seventh. That the provisions therein named for the said Sarah A. Tucker- Osborn were made by the said John M. Os- born for the purpose of carrying out said antenuptial contract. Eighth. That said pro- visions in said will do not fully carry out the terms of said antenuptial contract. Ninth. That said antenuptial contract is not sufficiently specific in its terms for th^ court to decree a specific performance thereof. Tenth. That said antenuptial contract can- not operate to bar dower." From this de- cree, complainants appeal. 1. Defendant contends that the court was in error in the findings of fact, and that, in any event, the bill was properly dismissed. We cannot agree with this contention. We are satisfied from the evidence that the ante- nuptial contract was made between the par- ties, and delivered, as claimed by the com- plainants, and that it was made with a full understanding between them of its object and purposes, and that the defendant well knew the extent and value of the property of John M. Osborn; neither have we any doubt but that John M. Osborn intended to fully carry out the provisions of the contract by clause 2 of his will above set out. It would be of no interest to the parties or the profession to set out the testimony in full upon which we reach these conclusions. They are the conclusions of the court be- low, who heard the testimony, and we can- not well see how any other result could be reached, under the evidence in the case. 2. It is further contended that in any event the court was correct in finding that the antenuptial contract could not be en- forced, for the reasons (a) that the court had no jurisdiction; (b) that the contract is void on its face; (c) that it could not bar dower; (d) that it is not sufficiently specific to be en- forced; (e) that the will does not carry out the terms of the contract. A marriage be- tween parties who have previously made a contract with each other, to be performed pres- ently or during the marriage, releases or ex- tinguishes such contract. Such contracts, however, when made in contemplation of marriage, and respecting the property of each of the parties, though released or ex- tinguished at law, are held good in equity, and will be enforced by a court of chancery against the heirs of the party in default. Miller v. Goodwin, 8 Gray, 542. As stated by Mr. Schouler in his work on Domestic Relations (section 173): "In this country the validity of marriage settlements is generally recognized; and it is well understood that 124 ESTATES IN REAL PROPERTY. almost any bona nae ana reasonable agree- ment made before marriage, securing the wife either in the enjoyment of her own personal property, or a portion of that of her husband, either in coverture or after death, will be enforced in a court of chan- cery." In Stilley v. Folger, 14 Ohio, 610, the court said: "All supposed actual fraud may be laid out of view. Why should not this agreement be enforced? Antenuptial contracts have long been regarded as within the policy of the law, both in Westminster and the United States. They are in favor of marriage, and tend to promote domestic happiness, by removing one of the frequent causes of family dispute,— contention about property, and especially allowances to the wife. Indeed, we think it may be considered as well settled at this day that almost any bona fide and reasonable agreement made before marriage to secure the wife the enjoy- ment either of her own separate property or a portion of that of her. husband, whether dur- ing the coverture or after death, will be car- ried into execution in a court of chancery." In Paine v. Hollister, 139 Mass. 144, 29 N. E. 541, a bill was filed by the executor to enjoin the widow prosecuting a petition in the probate court for an allowance out ol the husband's estate, setting up the fact that the defendant had entered into an ante- nuptial contract whereby she had agreed to accept a certain provision in lieu of dower, or any allowance or distributive share in the estate of her husband. There the court said: "There is no doubt that the contract is law- ful in its general features; that it was not extinguished by the marriage of the par- ties; and that a resort to equity is proper to enforce it." The same principle is recog- nized in equity in Tarbell v. Tarbell, 10 Al- len, 278; Jenldns v. Holt, 109 Mass. 261; Blacliinton v. Blaclvinton, 110 Mass. 461; Sul- lings V. Richmond, 5 Allen, 187; Collins v. Collins (Iowa) 33 N. W. 442; McNutt v. Mc- Nutt (Ind. Sup.) 19 N. E. 115. In a note to the last case cited, it is said: "Executory agreements made between a man and wom- an, who afterwards marry, and which then be- comes void at the common law, in the applica- tion of the conscientious principles of equity, will be specifically enforced against either husband or wife at the suit of the other." Tliis doctrine has been fully recognized in this court in Phillips v. Phillips, 83 Mich. 259, 47 N. W. 110. It is therefore well settled that a court of chancery has jurisdiction to determine the questions here presented, and that the par- ties are in the proper forum. But it is claim- ed that such a contract would not bar dower in the lands of the husband. It is contended tliat the contract ipso facto operated as a bar to her dower, lilve a jointure or pecuniary pro- vision settled upon her in accordance with the terms of sections 5746-5749, 2 How. Ann. St.; but that it was an executory agreement between tlie parties, and, wlien performed by Mr. Osborn or those representing him, the court will compel the defendant to specifical- ly perform her part of the contract, and re- lease her dower right; and that the making of the will was performance on the part of Mr. Osborn. If the contract is so specific that its performance may be decreed, and the will operates to carry out the agreement on the part of Mr. Osborn, we have no doubt of the correctness of this contention. Dakin v. Da- kin, 97 Mich. 284, 56 N. W. 562. That the defendant entered into the contract we have no doubt, fully understanding its terms and the financial condition of Mr. Osborn. She had been an inmate of his house for several years. There seems to have been made am- ple provision for her support and maintenance by the contract, and such as was satisfactory to her. But it is said that it is not sufficient- ly specific, and for that reason it cannot be enforced. The contract provides for her sup- port from the estate by providing a home and such amount monthly or quarter-yearly as may enable her to live in comfort, and equal to such as she had heretofore enjoyed, and, in case of sickness, such added amount as may be necessary for care, medical attend- ance, and other necessary expenditures, and at her death funeral expenses and rites of burial. These amounts are easily ascertain- able. Her former mode of life was to be taken into consideration in fixing what the home should be, as well as the allowance to be made. She was a woman without means at the time this contract was made, and in the employ of the deceased as housekeeper. Before that time she was there in the capaci- ty of a house servant. In Collins v. Collins (Iowa) 33 N. W. 442, the contract provided that "E. A. Collins [the husband] does by these presents agree to, and does hereby, set- tle upon Maria, out of his estate, a sufficient amount to keep and maintain her during her life, or as long as she remains his widow; that such amount so to be furnished shall be sufficient to maintain Maria in such circum- stances and in such manner as the estate of said Collins, Sr., will justify, and as would be reasonable to be furnished by a party or an estate in like financial circumstances." The court decreed specific performance, and fixed the amount that would be reasonable under all the circumstances. In Jacobus' Ex'r v. Jacobus, 20 N. J. Eq. 49, it was held that it was within the power of a court of equity to determine what a good and sufficient support was, and to direct its payment. In Preston Nat. Bank of Detroit v. Greorge T. Smith Middlings Purifier Co., 84 Mich. 384, 47 N. W. 502, a contract less specific than the pres- ent one was enforced by this court. Did the will fully carry out the terms of the contract? By the will, the defendant was given what was left of the home farm, after taking ofC the part left by the will to a nephew, with the right to firewood from the part devised to the nephew. She was also given absolutely the household furniture, two horses, two phaetons, etc. He then pl.Tced the sum of $5,000 in trust in the hands of his JOINTURE. 125 executor for her use, and to be paid from time to time, as her necessities demanded. It is true thiat the payments, by the terms of the will, were not in exact accord with the terms specified In the contract,— that is, monthly or quarterly,— but from time to time; and there is nothing in the case showing that it will not be paid in accordance with the contract- It cannot be said that the will does not carry out the terms of the contract, and meet the requirements of it The court be- low was in error in holding that the contract was not specific enough to be enforced, and that the will did not carry out its terms. The decree below must be reversed, and a decree entered here, granting the prayer of the bill. No costs of this court will be allowed to either party. The other justices concurred. 126 ESTATES IN REAL PROPERTY. KEELER T. EASTMAN. (11 Vt. 293.) Supreme Court of Vermont. Rutland. Jan., 1839. The orator's bill stated, in substance, that Seba Eastman, in October, 1828, executed a lease of a certain farm, described in the bill, to the defendant and his wife, during their nat- ural lives, and afterwards, in February, 1832, conveyed his reversionary interest in the farm to the orator. The bill then alleged that the defendant had committed waste on the prem- ises, and especially upon a sugar orchard, by cutting down and carrying away and selling the wood and timber growing thereon, and concluded with a prayer for an injunction to stay further waste, and that the defendant might be decreed to account to the orator for such as had been committed. The substance and amount of the testimony will appear from the opinion of the court, delivered by BENNETT, Chancellor. The great subject of complaint seems to be the destruction of the sugar orchard, which it is alleged has been cut down and destroyed since the orator became possessed of the reversionary interest, in Feb- ruary, 1832. It is unnecessary to go into the particulars of the evidence, which is quite vo- luminous, and is evidently somewhat contra- dictory; but suffice it to say that it seems to be pretty well established from the current of the testimony, that the principal part of the chop- ping in the sugar orchard was prior to the win- ter of 1832, and this too by Seba Eastman and Charles Eastman, while Seba had the rever- sionary interest. The whole evidence taken together satisfies the court that the farm, on the whole, has been managed by the tenant for life, in a prudent and husbandlike manner; and that there have been no acts of wantonness on the part of the defendant, or disregard to the ultimate value of the reversionary interest. Indeed, the value of the property seems to *have been enhanced by the better- *294 ments and good husbandry of the defend- ant. We are not aware of any decisions in the courts of this state, laying down any precise rules establishing what acts shall constitute waste; and, indeed, it is diflicult there should beany. The general principle is that the law considers every thing to be waste which does a permanent injury to the inheritance. Coke Litt. 53, 54. Jacob's Law Die. 6 Vol. 393, Tit. Waste. 7 Com. Dig. Tit Waste. by the principles of the ancient common law. many acts were held to constitute waste — such as the conversion of wood, meadow or past- ure, into arable land, and of woodland into meadow or pasture land — to which we might not, at the present day, be disposed to give that effect. These principles must have been intro- duced when agriculture was little understood, and they are not founded in reason, and many of them are inconsistent with the most impor- tant improvements in the cultivation of the soil. In England that species of wood, which is designated as timber, shall not be cut, be- cause the destruction of it is considered an in- jury done to the inheritance; and, therefore, waste. From the different state of many parts of our country a different rule should obtain in our courts; and timber may and must, in some cases, to a certain extent, be cut down, but not SD as to cause damage to the inheritance. To what extent a tenant forlife can be justified in cutting wood, before he shall be guilty of waste, must depend upon a sound discretion applied to the particular case. It is not in this state waste, to cut down wood or timber, so as to fit the land for cultivation, provided this would not damage the inheritance, and would be ac- cording to the rules of good husbandry, taking into view the location and situation of the whole farm. So, to remove the dead and de- caying trees, whether for the purpose of clear- ing the land, or giving the green timber a bet- ter opportunity to come to maturity, is not waste. We are satisfied that, when the wood or timber is cut with this intent, and is accord- ing to ajudicious course of husbandry, the ten- ant is not guilty of waste, though the wood or timber so cut may have been sold, or consumed off of the farm. This farm, it is to be remem- bered, is comparatively in a state of nature, and the town in which it is situated com- *295 paratively *new; and what might consti- tute waste, as applied to one farm in one place, might not, when applied to another, in a different place. Though the evidence is somewhat contra- dictory, we are not satisfied that the defendant has gone beyond his rights. The orator's bill is therefore dismissed. But inasmuch as the defendant has made declarations claiming the right to cut off all the wood and timber from the farm if he chose to do it, and threatened the doing of it, the bill was not brought with- out some apparent cause, and the defendant in this particular is not without fault; it is there- fore, dismissed without costs. R. R. Thrall and E. N. Briggs, for orator E. L. Ormsbee, for defendant. WASTE. 127 LOOMIS V. WILBUR. (Fed. Cas. No. 8,498, 5 Mason, 13.) Circuit Court, D. Rhode Island. Nov. Term, 1827. This was an action of waste under the statute of Rhode Island (see Dig. 1S22, p. 199), for the recovery of the freehold wasted. Plea, the general issue. Daniel Wilbur, de- ceased, by his will, made on the 20th De- cember, 1S02, and proved on 1st of June, 1807, devised all his lands undisposed of, includ- ing the premises, to his son Daniel Wilbur, the defendant, for his life, remainder to his wife for her life, if she survived him, re- mainder to Daniel AVilbur, his grandson, and son of his son Daniel, in fee; but if his said grandson died before 21 years of age, &c. then to his son Daniel in fee. The grand- son attained the age of 21 years and is still living. The grandson sold his interest in the estate to one James Aldrich, through whom, and by intermediate conveyances, and a levy on execution, the premises came to the plain- tiff [Luther Loom is] on the 23d of December, 1825. The only waste proved was, the cut- ting of a few timber trees sparsely on the land, not exceeding ten or fifteen in number. It was proved, that the defendant was very poor and unable to repair the fences and buildings from other means; that the prin- cipal part of the trees were cut down for re- pair's of the buildings. They were sold by an agent, and boards, already sawed, &c. were purchased with the proceeds and ap- plied to the repairs. This was the most economical way of attaining the object, and most for the benefit of the estate, and was done on consultation with the agent, be- fore the trees were cut down. It was also proved, that a .timber tree or two were cut down and sold; but whether the proceeds were applied to repairs did not appear. But it did appear, that the defendant owned a contiguous wood lot, and sometimes used the timber from that lot for fire bote auellant. A. B. Haynes (Montgomery & Lee, of counsel), for appellee. CHAMPLIN, C. J. This action was com- menced before a justice of the peace to recov- er for the use and occupation of certain prem- ises before then claimed to have been leased by the plaintiff to the defendant. The plain- tiff had judgment before the justice, and the case was appealed to" the circuit court, and there, after hearing the testimony, the court directed a verdict for the plaintiff. We quote, with a few amendments, the statement of facts taken from the supplemental brief of counsel for defendant, namely: The plaintiff was the owner of a store building, in which was contained a stock of goods which had been attached, and was sold by the sheriff at public auction, and purchased by the de- fendant. When the goods were offered for sale, the plaintiff informed the auctioneer, and he so announced, that any purchaser of the stock of goods might obtain a lease of the store. Immediately after the purchase by the defendant, the plaintiff and he talked togeth- er with reference to leasing the store, and it was then agreed between them that the plain- tiff would execute to defendant a written lease of the premises for a term of one year, with the privilege of three or five shears in ad- dition, for a yearly rental of $500, payable monthly in installments of $41.66. The de- fendant agreed to accept and enter into such a lease on those conditions, and on account of the lateness of the hour the plaintiff said he would have the lease drawn after he retm'ned home, and they could execute it at some fu- ture time. Without any other agreement or understanding, defendant occupied the store two months, and paid the monthly rental of $41.66. The defendant, through his father, during this period of time, requested the plain- tiff to execute the lease, who replied that he would do so, but that, the defendant not being present to execute the lease with him, he would have it drawn so that when they came together it could be signed. The term com- menced on the 6th day of May, 1890, and the rent was paid to July 6, 1890. On the 3d day of July the defendant removed from the prem- ises. On the Sunday before he had an inter- view with the plaintiff, in which he told him that he was going to vacate, to which the plaintiff replied that he had rented the store for a year. The defendant, after he had remov- ed from the premises, locked the door, and left \ the key in a bank with which plaintiff was conneeied, with directions to deliver it to plain- tiff. Plaintiff refused to accept the key or the possession of the premises, and, after the next month's rent became due and payable, brought his action to recover for the use and occupation of the premises. The first question to be decided is, what was the nature and extent of defendant's holding under the facts above stated? The question so ably argued by defendant's attor- ney in his original and supplemental briefs, and orally before the court, namely, that the testimony shows that no actual lease was en- tered into, but that there was an agreement for a lease for a term of one year, with the privilege of three or five years, at an annual rental of $500, payable monthly at the raie of $41.66, does not reach and dispose of the merits of the controversy. The terms of the lease were agreed upon, and it was agreed they should be reduced to writing. This doubtless was an agreement for a lease to be executed according to the terms agreed upon, but the testimony shows further that the de- fendant went immediately into possession un- der the agreement that he should have a writ- ten lease for one year, with the privilege of three or five years, ag above stated, and oc- cupied the premises and paid the stipulated rent for two months. Under such facts, the relation of landlord and tenant was created. ^The defendant became a tenant at will. It is laid down by Taylor, in his work on Land- lord and Tenant, that "where a party enters into the possession of premises under an agreement to accept a lease for twenty months, and subsequently refuses to accept the lease, he becomes by such refusal a strict tenant at will, for he may be ejected immedi- ately; but, if the landlord accepts rent from him monthly or according to the terms of the original agreement, a general tenancy at will is created, commencing from the time of en- tity ;" and "while a man who enters imder a void lease is strictly a tenant at will, if he pays rent, he becomes a general tenant at will or from year to year, according to circumstan- ces." Tayl. Landl. & Ten. § 60. In this case the agreement for a periodical rent, and the agreed term of a year, at all events, makes the holding of defendant a tenancy from year to year. See Id. § 56, and cases cited in note 2. Counsel for the defendant claims that an entry under an agi'eement for a lease is a mere license, and can be terminated by either party before the written lease is executed, and cites Tayl. Landl. & Ten. § 37. The author does make use of the expression that "such an agreement, however, will operate as a li- cense to enter upon the premises agreed to be demised;" but it was not the intention, as I think, of the author, to convey the idea that a person so agreeing for a lease might enter and occupy the premises, and pay rent in ac- cordance with the agreement, without becom- ing a tenant. The distinction is this: if he enters awaiting the execution of the agree- ment, his entry is one under a license, but if, LANDLOllD AXD TENANT. 141 after being in possession of the premises, he pays rent for the use of them in accordance with the agreement, which was to be reduced to writing, his relation is that of a tenant at will; and the distinction is plainly pointed out at the close of the section cited, where the au- thor says: "Any person, however, who may be in possession of land in pursuance of an agreement to let, may, by the payment of rent or other circumstances, become a tenant from year to year." Indeed, it would seem not to require any citation of authorities to prove that when a party, umler an agreement for a lease, enters in possession and pays rent for the use of the premises, the relation between the parties cannot be other than that of land- lord and tenant; it certainly is not that of li- censor and licensee. The tenant has acquired rights of which he cannot be divested without the proper notice, and so has the landlord. The same result follows where a lease is made by parol for a longer term than one year, and the party enters into possession under it, and pays rent, which it is agreed shall be reduced to writing, as it does where a lease is made for a longer term than one year by parol, and is void under the statute of frauds, and the tenant enters and occupies, paying rent, and is ruled by the same principles which apply to the latter class. In such cases it has been uni- formly held that an implied tenancy from year to year will arise in eases where occupa- tion is had under a parol demise for more than a year, void because exceeding the period al- lowed by the statute of frauds. Tayl. Landl. & Ten. § 56. Some cases hold that such a lease, although void for the period beyond a year, is good for one year, because it Avill be presumed that the parties intended to effect the lease for the term for which one could le- gally be made; but I thinli the better rea.son- ing is that a contract which is void by the terms of the statute of frauds is not good for any purpose further than to indicate what the intentions of the parties were with reference to the terms of the letting. The rights of the parties must be judged by the relation they have assumed with each other independently of the void contract. Courts, however, have referred to the contract as throwing light up- on the intentions of the parties, and it has been generally held that, where a tenant en- ters and occupies under a parol lease for more than a 5^ear, the agreement may be looked to as showing the terms under which the tenan- cy subsists in all respects, except as to the duration of the term. Doe v. Bell, 5 Term R. 471; 1 Cruise, Dig. 281-284; People v. Rickert, 8 Cow. 226; Schuyler v. Leggett, 2 Cow. 660; Greton v. Smith, 33 N. Y. 24.-5; Clayton v. Blakey, 8 Term R. 3; Laughran v. Smith, 75 N. Y. 205. In the case last cited, which was an action to recover rent, Andrews, J., said: "But although a parol lease for more than a year is void, yet it has long been set- tled that, when a tenant enters and occupies, the agreement regulates the terms on which the tenancy subsists in all respects except as to the duration of the term. It is a reasona- ble infereiK-e in such a case, from the circum- stances, that the parties intended a tenancy on the terms of the original agi-eement, and the law Implies a new contract between the parties corresijonding therewith, so far as it is not in conflict with the statute." In Koplitz V. Gustavus, 48 Wis. 48, 3 N. W. 754, the ten- ant had gone into the occupation of the prem- ises under a lease which was void under the statute of frauds. It was contended by coun- sel for the lessees that, as the lease was not in writing and was for a longer i)eriod than a year, it was void; that the rent reserved was not annual, but monthly, and payable at the end of each month, on the plaintiff's demand; and that under these circumstances the ten- ancy created by holding over was one from month to month, and determinable by 30 days' notice. The court, in deciding the case, after stating the position of counsel, said: "But to this it may be answered that there are well- considered cases which decide, under the Eng- lish statute and statutes which contain similar provisions, that while a parol lease for more than the prescribed period creates, in the first instance, only an estate at will, yet such estate, when once created, may, like any other estate at will, be converted into a tenancy from year to year, by payment of rent or oth- er circumstances which indicate an intention to create such yearly tenancy." In Morrill v. Mackman. 24 Mich. 279, the distinction be- tween a license and a tenancy is clearly point- ed out, and it was expressly held that a parol lease for more than a year, reserving an an- nual rent, under which the lessee has been put into possession, although invalid under the statute of frauds, was good as a lease from year to year, until tenninated by notice. The principle in this case was cited with approval and applied in Coan v. Mole, 39 Mich. 454. Schneider v. Lord, 62 Mich. 141, 28 N. W. 773, was a case where there was an unwritten lease for two years from the beginning of the year 1884. The rent was paid monthly for more than a year, and the lessee claimed the right to terminate the lease on a month's no- tice. The case below was decided on the ground that the tenancy was at will from month to month, and ended by a month's no- tice to quit. It was, however, held that it was a tenancy from year to year, and not a monthly tenancy at will, and the fact that the rent was payable monthly did not any the less malelled by virtue of the lease to pay for a longer period than he actually occupied." The facts of that case are stated in the opin- ion. The plaintiff alleged a lease for seven years. On the trial he proved a memorandum made by himself in which he stated that he was to give Mr. Nelson a lease of the building 271 Broadway for seven years, the first three years at $1,400 a year, and four years at $1.- 500 a year. It was said that the memorandum did not embody the contract between the par- ties, and was not intended to. It simply em- braced the main features of the lease, and plainly indicated that a formal lease was sub- sequently to be executed embodying the agree- ment which the parties had made. The plam- tiff was permitted to show a parol agreement for a lease of seven years, and the terms up- on which the parties had agreed. The court ruled upon the trial below in his charge to the jury that such a lease, although invalid for a term of seven years, was valid for a term of one year. Under these rulings there was no exception, and Mr. Justice Earl, in de- livering the opinion of the court of appeals, said: "While such a contract is void, yet if the tenant enters into and occupies he may be compelled to pay for the use and occupation of the premises, [citing authorities;] but it is difficult to perceive how such a contract, de- clared to be void by the statute, can be held to be valid for a single hour, or upon what principle a tenant entering under a void lease could be compelled by virtue of the lease to pay for a longer period than he actually oc- cupied." This probably is the language from which the syllabus was composed, but a fur- ther reading of the opinion will disclose that what the court meant by actual occuiDatiou was an occupation under the tenancy, and until it had been legally terminated; for in the next clause the court proceeds as fol- lows: "In August the defendant moved away from the premises, and sent the keys of the house to the plaintiff in a letter, and they were not returned. He claimed upon the trial that the retention of the keys was an accept- ance of the surrender of the premises. The plaintiff was not bound to seek the defendant, and tender the return of the keys. The court held that the mere retention of the keys, which were sent to him without his request or assent, did not amount to a surrender and acceptance, and in this there was no error." So that it plainly appears that a tenant at will, until the tenancy is legally terminated by notice, is bound to pay for the use and occupation, and that the mere vacating of the premises during the term, or while the tenan- cy exists, does not exonerate him from the payment for the use and occupation of the premises until the relation of landlord and tenant is legally terminated. The judgment must be affirmed. The other justices con- curred. LANDLORD AND TENANT. 143 LADD V. BKOWN. (53 N. W. lOiS, M Mich. 136.) Supreme Court of Michigan, Dec. 22, 1892. Error to circuit court, Jackson county; Erastus Pecli, Judge. Replevin by Heury A. Ladd against David Brown. Judgment for defendant. I'laintiff brings error. Reversed. Thomas A. Wilson, for appellant. Blair & Wilson, for appellee. MONTGOMERY, J. The defendant leased a farm in Norvell township, Jackson county, of one George Ladd, under an agreement to pay 5 per cent, of the valuation as annual rental. After some years of occupancy by defendant, George Ladd died, in May, 1887, leaving as his heirs at law the plaintiff and one Alice M. Ladd, a minor child of another son. The defendant was appointed admin- istrator of the estate of George Ladd, and continued to occupy the premises in 1887 and 1888. In rendering his account as adminis- trator, he accounted for the rental of the farm, and charged himself $280. This sum was fixed by the probate judge after a hear- ing. In 1890 he sowed 12 'acres of wheat and 16 acres of rye. He left the place be- fore April 1, 1891, and plaintiff took posses- sion. Defendant afterwards went on the premises, and reaped the crop. Plaintiff brings i-eplevin. The plaintiff's testimony tended to show that when the defendant took possession it was agreed on his part with George Ladd that the defendant would at the end of his term leave on the ground the same quantity of wheat as was then growing,— about 25 §cres. Defendant testified that in the fall of 1888, before he put in the wheat in question, "I told him I would not think of putting in any wheat unless I had the right to come back and harvest it after I left the place,— if I could have that privilege to come back and hai"vest it. I told him if we were going to have any trouble I would not think of put- ting in the wheat. He said he did not think there would be any trouble, and that he owned one half of the place, and would prob- ably own the rest before the wheat was har- vested, and there would be no trouble. This was in front of plaintiff's house. He asked me if I had plowed any, and I told him no, I didn't know as I should, and that brought up the question about sowing the wheat. That talk was, I think, along in the fore part of August. I plowed after that. He knew I was plowing and sowing the ground." The circuit judge charged that, "If the defendant, Brown, in substance said to Mr. Ladd, the plaintiff, 'I will not put in the crops unless I can harvest and take them off,' and Mr. Ladd, in reply, said, in substance. "There will be no trouble about that; I own one half, and expect to purchase the other half;' and if you further find that when Mr. Ladd made that statement he expected Mr. Brown to rely upon it and act upon it in putting in the crops; and if you also find that Mr. Brown did so rely upon it and act upon it, and would not have put in the crops excei>t for such statement by Mr. Ladd.— now, in that condition of facts, Mr. Ladd cannot in- sist upon having the crops, and yom- verdict should be for the defendant. If, on the oth- er hand, the evidence does not establish such a condition of facts, Mr. Ladd, the plaintiff, is entitled to your verdict." We think there was error in ignoring the testimony offered by the plaintiff tending to show that the defendant was legally bound to do what he claims to have done under the plaintiff's assurances. To so apply the doc- trine of estoppel as to render an agreement, otherwise void for want of consideratiuu, valid and binding, is to accomplish by indi- rection what cannot be done directly. The doctrine of estoppel is applied to prevent in- justice, not to relieve parties from the obli- gations of their contracts; and the conduct of the party claimed to have been estopped must have been such as to have misled the party setting up the estoppel into a course to his prejudice, or inducing him to do what he otherwise would not have done. Burdick v. Michael, 32 Mich. 246. In this case, if the defendant was induced to do no more than he had, before the alleged promises of plain- tiff, undertaken upon sufficient consideration to do, it cannot be said that he was misled to his prejudice, and induced to do what he othei'wise would not have done, imless it was to his prejudice to fulfill his contract, which is of course not true. 3 Am. & Eug. Enc. Law, p. 8.34, and cases cited in note 4. It is claimed by the appellant that, as the growung wheat was an interest in real estate, an estoppel could not be created by parol. We do not consider that the case presents this question. It was competent for the plaintiff to assent to an occupancy of land for a period of less than one year by parol. and this is the effect of the agreement, as testified to by defendant; and. if such agi-ee- ment had been made upon sufficient consid- eration, we do not doubt that it could be en- forced. In this case, if the testimony offered by the phiintiff tending to show that there was an agreement on the part of defendant to leave crops upon the ground corresponding to those which were growing at the time he took possession is true, there was no con- sideration for the engagement alleged to have been made by the plaintiff, and the jury should have been so instructed. Judgment mil be reversed, with costs, and a new trial ordered. The other justices con- curred. 144 ESTATES IX REAL PROPEKTY. WIXEMAX V. PHILLIPS et al. (53 N. W. 168, 93 Mich. 223.) Supreme Coort of Michigan. Oct. 4, 1892. Appeal from circuit court, Jackson coun- ty, in chancery; Erastus Peclf, Judge. Bill in equity by Henry Wineman against Mary Ann Phillips and Richard G. Phillips. From a decree for defendants, complainant appeals. Reversed. Griflin, Warner & Hunt, for appellant. A. E. Hewett (Eugene Pringle, of counsel), for appellees. McGRATH, J. On the 4th day of January, 188G, defendants leased from complainant the Madison House, at Detroit, for five years and three months, at an annual rental of $2,400 for the first three years, and $2,- 700 for the rest of the term, payable in monthly installments in advance. Defend- ants at the same time. purchased from com- plainant the hotel furniture for $1,050, pay- ing $300 down, and agreeing to pay .'^lOO per month after July 1, 1888, until the whole was paid. The lease provided that defend- ants would pay all water taxes and assess- ments; keep the plate glass as well as the hotel effects and furniture insured for com- plainant's use and benefit; and, to secure the performance of the conditions and agreements of the lease on their part, de- fendants should execute a chattel mortgage upon the effects and furniture purchased, and a real-estate mortgage upon certain real estate owned by defendant Mary Ann Phillips, in Jackson. The lease provided that it should not be assigned without com- plainant's consent. The agreement provid- ed that, when the furniture should be fully paid for, the real-estate mortgage should be discharged. The lease was executed and acknowledged by complainant and the de- fendants on the day of its date, and de- fendants went immediately into possession under it. The mortgages provided for in the lease were afterwards, on January 18, 1886, executed and delivered. The condi- tion of the real-estate mortgage was the payment of the balance due upon the furni- ture, and that of the chattel mortgage was the performance of the condition of the lease. Defendants occupied the premises until November 15, 1887, at which time they were in arrears for I'ent, and had made no further payments upon the furniture. On that date defendants, by a written instru- ment, assigned to Murray Dalziel the lease aforesaid, and defendants' interest in the hotel furniture, subject to all the terms and conditions of the said lease, and subject to all liens and incumbrances existing thereon. Murray agreed to pay to defendants $1,(X)0, of which $500 was to be paid down, and $500 in two years. Murray assumed and agreed to pay "all such I'ent upon said premises as may be now in arrears, and all liabilities against the said 'Madison House,*" so called, created and existing on hotel ac- count, and accruing within the period of one year last past; and the said second party hereto does hereby further assume and agree to carry out and perform all the condi- tions of said lease entered into on said 4th day of January, 1886, between said second and third parties, hereto, and to pay the rent as therein provided, subject, however, to such modifications as may be made in respect thereto by said second and third parties, and all liabilities existing on ac- count of the sale of the furniture as in said lease provided, in accordance with the terms and conditions of said lease, and in all respects relieve the said Richard G. Phillips and Mary Ann Phillips from their obligations in respect thereto." The said as- signment was executed by defendants, Dal- ziel, and complainant, and contained the following clause: "And the said Henry Wineman, party of the third part hereto, does hereby consent to the assignment and transfer of said lease by said Phillips and wife to him, (said Dalziel,) as above provid- ed." On the same date complainant en- tered into a written agreement with Dal- ziel, reducing the rent to $150 per month. Dalziel occupied till July 1, 1888. at which time he left the city and went fo Jackson. It is not claimed that he, at that time, sur- rendered the house to complainant, and that complainant leased to one Walsh; but the answer sets up that Dalziel, at that time, made some kind of a transfer of the said hotel property, including the said furniture and fixtures, to one Walsh, who took pos- session and occupied the same for one month and more. On or about the 1st of August, 1888, Dalziel came back to Detroit, and again took charge of the house, at a reduced rent of $30 per week. Dalziel re- mained until the last of December, 1888, and then surrendered possession to com- plainant, who foreclosed the chattel mort- gage, and at the foreclosure sale bid in the hotel effects and furniture for $1,000, cred- ited that amount upon arrearages for rent, and filed his bill to foreclose the mortgage upon the Jackson property for the amount unpaid upon the furniture. The defendants insist (1) that, by agree- ment between the parties, they were to be released from liability, and Dalziel was to be substituted at the time of the assign- ment to Dalziel; and (2) that when Dal- ziel, August 1, 1888, took possession, it was expressly agreed that the then existing in- debtedness should be canceled, and the de- fendants released from liability, and that at that time Dalziel made a new contract for the purchase of the furniture, at and for the price of $1,000. The answer does not set up any agreement to release defendants, entered into at the time of the transfer to Dalziel, but sets up that, on July 1st. Dalziel made a transfer of the hotel property to LAXDLOIID AND TENANT. 145 Walsh; that A^'alsh took possession and paid tlie July rent; that afterwards complainant and Dalziel arranged that the old lease should be canceled; the hotel property should be surrendered to and become the property of complainant; that, in considera- tion thereof, complainant should cancel the old indebtedness; that complainant should oust Walsh, and complainant sliould make a new lease to Dalziel; that said arrange- ment was carried out; that Dalziel continu- ed in possession under said lease, as tenant of both hotel and furniture, until Decem- ber following, when he surrendered the property to complainant, who has since sold it, and leased the premises as his own; that in making said settlement and arrangement of August 1, 1889, defendant Mary Ann Phillips "assumed, in the absence of her husband, to act and agree for them both, and that what she did in the making of said settlement was assented to by her said hus- band, only with and upon the express un- derstanding that the said settlement includ- ed the cancellation of the said indebtedness of $1,350 and the interest, as well as of the demands growing out of the said lease, and not otherwise." The first claim is entirely inconsistent with this answer. Dalziel was the son-in- law of defendants, and, although not his answer, it was made after full consulta- tion with him. Mrs. Phillips testified that she was present when the arrangement of August 1, 1889, was entered into between Wineman and Dalziel, and with reference to it she says: "We were talking about the Walshes, and Mr. Wineman said that the Walshes would never suit his house; he didn't like their character. And I told him, 'No, I didn't think they would suit myself;' and he told Mr. Dalziel he would very much like him to take the house back again. Dal- ziel said he would, provided that I would turn over all the furniture, and provided he would release Phillips of all the indebt- edness and incumbrance; then, if he Avould do that, he would give Wineman $1,000, and $25 a week rent. Mr. Wineman said he would not take the $25 a week rent, but he would $30, and Mr, Dalziel said that he did not believe he could give him $30, but it appears they consented to it afterwards." Dalziel says: "Mrs. Phillips said she want- ed that part distinctly understood, that she, the Phillipses, were released of all obligations; that was the point that was thoroughly un- derstood." If on November 15, 1887, de- fendants were to be released, why any fur- ther agreement on August 1, 188S? Com- plainant denies any agreement to release defendants at any lime, and all of the testi- mony of defendants and Dalziel, respect- ing any agreement to release, relates to con- versations prior to the execution of the trip- artite agreement, dated November 15, 1887. Two papers were executed at that time,— the tripartite agreement or assignment to GATES,R.P.— 10 , Dalziel, and the agreement between com- plainant and Dalziel, respecting the reduc- tion of the rent. Neither of these papers— and one of them contained the agreement that, as between defendants and Dalziel, the latter should pay these arrearages- refers to any release of the defendants. It must be held that whatever agreements were made by these parties were merged, and are set forth in this tripartite agree- ment. Respecting the alleged new agreement of August 1st the $1,000 wliich Dalziel and Mrs. Phillips claim was to be paid to Wine- man is not mentioned in the answer. It is claimed that, by this agreement, the orig- inal agreement or lease, the chattel mort- gage, the real-estate mortgage, the tripartite agreement, and the subsequent agreement with Dalziel were all canceled and wiped out, and the defendants were to be released from a valid claim agamst them for $2,000; yet there is not a single stroke of a pen to indicate such an agreement or such a pur- pose. Dalziel, according to his stoi-y, was to pay $1,000 to Wineman. He docs not pretend to say when it was to be paid. If no time was fixed, it was to be a cash pay- ment; yet it was not paid, and Dalziel oc- cupied the hotel for five months thereafter, and he does not pretend to say that the matter of its payment or of its nonpayment was ever once alluded to. Can it be urged that Wineman released a secured claim of over $2,000, sold, turned over, and delivered to Dalziel this entire furniture for Dalziel's unsecured promise to pay $1,000, without note or memorandum, and that for five months the question of the payment was never alluded to? Wineman does not ap- pear to have done business in that way. The record shows that he was methodical, and, when he made an agreement, he usual- ly put that agreement into writing. It is claimed, however, that after August 1, 1888, some weekly receipts were given by Wineman, which read, "In full for rent to date," and one of the receipts was produced. Wineman was a man then 70 years old- This receipt was drawn by Dalziel. Wine- man's explanation is entirely satisfactory. Dalziel had, on a few occasions, handed over the counter the week's rent, with a receipt already prepared, and this occurred three or four times. Wineman did not read the first two or three of these receipts, but, on glan- cing over the last before signing, he noticed the language, "In full for rent to date." He immediately remonstrated, and asked to see the other receipts, which Dalziel laid out on the counter or table. AYineman picked out three that had been drawn by Dalziel, insisting that Dalziel knew that was not right, and offering other I'eceipts for them. Dalziel took one of the three, saying that he wanted to retain one of them for a copy. Wineman took the other two without objec- I tion or remonstrance from Dalziel. When 146 ESTATES IN REAL PROPERTY. asked if he did not say tbat be wanted to keep one for a copy, Dalziel says: "I don't know tbat I used tbose exact words. I know I told him tbat I intended to keep tbat one." Thus we find Wineman at this early day (September, 188S) insisting that there were arrearages, whereas, if Dalziel's claim is correct, there were no arrearages; yet he does not remonstrate with complainant. It was not claimed tbat the receipts which Wineman bad prepared were so written, or tbat be bad read and understood those which Dalziel bad prepared. Wineman's conduct is everywhere consistent with his theory. Dalziel abandoned the premises December 31, 1888, and on January 4, 1889, notices were posted of the foreclosure sale of the furniture under the chattel mortgage. It is bid in by complainant, and sold again for the same amount. The bill herein sets forth tbat, prior to the giving of the mortgage to complainant, Mary Am Phillips " bad given a mortgage upon this Jackson property to another party ; that in September, 1888, intending to cut off complainant's rights, she procured the said mortgage to be foreclosed, and the property sold under the statute; tbat on the day of the sale she gave to her son, George L. Phillips, the amount due on said mortgage, and instructed him to bid in the property in his own name, but in her interest, which be did; tbat afterwards, in April, 1889, said George L. Phillips conveyed said property to bis wife, Mary Phillips, for a nominal consideration; that said Mary Phillips was not a bona fide purchaser of said property. The bill makes George L. Phillips and Mary Phillips parties defendant, and prays tbat the said property may be decreed to be that of Mary Ann Phillips, and subjected to sale as such. The answer admits the allegations of the bill, in tbat regard, except that it is alleged "tbqit the sole and only reason why she expected to better her title to her lands by means of a foreclosure sale bad refer- ence to claims under tax titles which she supposed were made against her, and not in any way for the purpose or with a v'ew to the defeating oi the rights of the said complainant under his mortgage; and she further says tbat she took such action as is mentioned in the said bill without legal advice, and with no other purpose than to have the said lands conveyed to herself by the said George L. Phillips, after the time for the redemption thereof should have ex- pired." This explanation is an unsatisfac- tory one. This proceeding is inconsistent with the theory tbat on August 1st, preced- ing, this property had been released from complainant's claim against it. The proofs, therefore, fail to show a release or discharge of the mortgage in question. It is insisted, however, that the mortgage is invalid, for the reason that the original agreement contemplated a partnership, which could not lawfully exist; that the property purchased for partnership uses be- longed to the husband. The agreement en- tered into between complainant and defend- ants was not a partnership agreement. It was for a lease of certain premises, and the puix-base of certain personal property. The consideration that passed was certain personal propert3^ and a lease of certain real property. On the execution of the papers, and delivery of possession, defendants be- came joint owners of the personal property, and joint owners of the leasehold. The lease and purchase did not necessarily in- volve a partnership between defendants. A [ consideration then present and existing j passed to her as virtuallj- as though a deed I of the premises, instead of a lesser estate, I had been executed and delivered. This ] mortgage was given to secure the unpaid purchase money for property, the title to which vested in herself and husband joint- ly. A married woman may become a joint debtor with her husband, and upon a. proper consideration. Post v. Shafer, 63 Mich. 85, 29 N. W. 519. Dalziel is not a necessary or an indispensable party defendant. An in- quiry as to the equity existing between Dal- ziel and defendants was not important. The assignment of the lease to Dalziel did not operate to discbarge defendants; no new leasing was made; no understanding tbat defendants should be released; no acts done from which an intention to release could be inferred. Stewart v. Sprague, 71 Mich. 50- 57, 38 N. W. 673; Bailey v. Wells, 8 Wis. 141. The decree of the court below is re- versed, and a decree entered here for com- plainant in accordance with the prayer of the bill, with costs of both courts. MORSE, C. J., did not sit. The other jus- tices concurred. ESTATES ON CONDITION. 147 WARNER v. BENNETT et al. (31 Conn. 4GS.) Supreme Court of Errors of Connecticut. April, 1863. E, W. Seymour, for plaintiff in error. Mr. Graves (with whom was Hollister), for defend- ant in error. SANFORD, J. In our opinion the convey- ance from Tomlinson to Bennett and others was of a fee simple estate upon condition ex- pressed in the deed. The instrument is a com- mon deed of bargain and sale to the grantees, their heirs, and assigns forever, for certain uses specified in the deed, which contains the following clause: "The conditions of the with- in deed are such that whenever the within named premises shall be converted to any oth- er use than those named within, and the with- in grantees shall knowingly persist in the use thereof for any purpose whatever except such as are described in said within deed, the said grantees forfeit the right herein conveyed to the within described premises, upon the gran- tor paying to the said Hatch and Bennett and other stockholders the appraised value of such buildings as may be thereon standing." Blackstone says, estates upon condition "are such whose existence depends upon the hap- pening or not happening of some uncertain event whereby the estate may be originally cre- ated or enlarged, or finally defeated." 2 Bl. Comm. 151. Littleton says, "It is called an estate upon condition because that the estate of the feoffee is defeasible if the condition be not performed." Co. Litt. § 325. "A condi- tion is created by inserting the very word 'con- dition' or 'on condition' in the agreement." 1 Bouv. Inst. 285. Conditions are precedent or subsequent. "Precedent are such as must hap- pen or be performed before the estate can vest or be enlarged. Subsequent are such by the failure or non-performance of which an estate already vested may be defeated." 2 Bl. Comm. 154. In the case of a condition "the estate or thing is given absolutely without limitation, but the title is subject to be divested by the happening or not happening of an uncertain event. Where, on the contrary, the thing or estate is granted or given until an event shall have arrived, and not generally with a liability to be defeated by the happening of the event, the estate is said to be given or granted sub- ject to a limitation." 2 Bouv. Inst. 275; 2 Bl. Comm. 155. In the case before us the estate vested in the grantees upon the delivery of the deed, to have and to hold to them, their heirs and assigns, not until they should convert the property to other uses than those specified in the deed, nor so long as they should continue to use it for the purposes specified, but forever; with a pro- viso or condition expressed in the deed, that if they should convert the property to other uses they should forfeit their estate. The words employed are most appropriate and apt to make -an express condition in deed. They are "the conditions of the within deed are such," etc. And in Portington's Case, 10 Coke, 41a, it is said that "express words of condition shall not be taken for a limitation." It has indeed been held that they may be so taken where the es- tate is limited over to a third person upon the breach or non-performance of the condition (Fry's Case, 1 Inst. 202) but there is no such limitation over in the case before us. So when it is said that "whenever the within named premises shall be converted to any other use.' etc., "the grantees forfeit the right herein con- veyed," it is clearly indicated that the estate thus forfeited by the misappropriation is to be cut off before the time originally contemplated for its termination by the parties. But it is said that by the terms of the in- strument the forfeiture depends not merely up- on the misappropriation of the property by the grantees, but also upon the grantor's payment of the appraised value of the building. Sup- pose it is so, how can that affect the question whether this is a condition indeed or a limita- tion? No matter how many events the for- feiture depends upon, nor how many individu- als must act in producing them, when all those events concur and co-exist the forfeiture is ef- fected as completely as if it depended upon the occurrence of a single event, and the action or omission of a single individuah But the pay- ment for the building was not an event upon which the forfeiture depended. It was merely a duty imposed upon the grantor by the con- tract in addition to that which the law im- posed, to enable him to take advantage of the breach of condition and enforce the forfeiture. His legal obligation to enter for breach of the condition was in no wise affected by it. The estate conveyed by the deed was not an ease- ment, or any other right or interest in the property less than a /ee simple. The fact that the instrument was signed by both of the par- ties to it is of no importance. Tliey were nei- • ther more nor less bound by the stipulations and conditions contained therein by reason of such signature. Tne instrument contains no contract on the part of the grantor to pay for the building. The provision upon that subject operates as a qualification of the grantor's right to enforce the forfeiture and regain his prop- erty, but operates in no other way. But for that provision the estate granted could have been put an end to, and revested in the gran- tor, by an entry only; under that provision an entry could be made available only by pay- ment for the building also. We think it clear that the estate of the gran- tees was an estate on condition in deed, and that it was an estate upon condition subse- quent; and hence, notwithstanding a breach of the condition by reason of which the estate might have been defeated, it must continue to exist in the grantees, with all its original qual- ities and incidents, until the grantor or his heirs by an entry (or its equivalent, a continual claim), have manifested in the way required by law, their determination to take advantage of the breach of condition, to avail themselves 148 ESTATES IN REAL PROPERTY. of their legal rights, and to reclaim the estate thus forfeited. The law upon this point is thus laid down by Professor Washburn, in the first volume of his treatise on Real Property (page 450), with ac- curacy and precision. "A condition, however, defeats the estate to which it is annexed only at the election of him who has a right to en- force it. Notwithstanding its breach, the es- tate, if a freehold, can only be defeated by an entry made, and until that is done it loses none of its original qualities or incidents." See, also. Id. 452; 2 Bl. Comm. 155; 2 Cruise, Dig. 42. But there is in this bill no allegation that an entry for condition broken was ever made. No right to maintain this suit is disclosed, no title to the property is set up, nothing is claimed but a right of entry for condition broken. And for this reason, if for no other, the bill is in- suflBcient, and the decree must be pronounced erroneous. The allegation in relation to an abandonment of the property is immaterial. It is not averred that the grantt^es had abandoned the property, but only that they had abandoned it "so far as the uses named in said deed are concerned;" that is, that they had ceased to use the prop- erty for the purposes for which the grant was made, not that they had ceased to use it al- together. What effect an absolute and entire abandonment of the property by the grantees would have had upon the legal or equitable i-ights of this petitioner, we are not now called upon to decide. Secondly. A right of entry for condition bro- ken is not assignable at common law, and we have no statute which makes it so. 2 Cruise, Dig. 4; 4 Cruise, Dig. 113; 1 Spence, Eq. Jur. 153; 1 Swift, Dig. 93. The grantor or his heirs only can enter for breach of such condi- tion. 1 Washb. Real Prop. 451; 2 Cruise, Dig. 44, The petitioner therefore could have obtained no right or title to make an entry for breach of the condition, and without such en- try the estate of the grantees could not be ter- minated, and no suit at law or in equity could be maintained against the occupant of the prop- erty. Thirdly. If there was a breach of the con- dition and a forfeiture of the grantees' estate in consequence, and if a right of entry could be and was in fact assigned to the petitioner, still the petitioner could not obtain the relief for which he seeks in a court of equity, be- cause that court never lends its aid to enforce a forfeiture. 4 Kent, Comm. 130; 2 Story, Eq, Jur. § 1319; Livingston v. Tompkins, 4 Johns. Ch. 415. Lastly. If the right, title or interest, what- ever it was, of the grantor or his heirs was as- signable, and was assigned to and vested in the petitioner, as he claims, he had no occasion to come into a court of equity for relief. We do not see why he might not have entered for breach of the conditions, requested the re- spondent to unite with him in procuring an ap- praisal of the building, if he refused, procured such appraisal without the respondent's co- operation, tendered the amount of the apprais- al, and brought his action of ejectment. The petitioner's legal right, if he had it, to put at an end to the grantees' estate and obtain pos- session of the property, we think could have been defeated by the respondent's refusal to co-operate in the appraisal or accept the ten- der. See 1 Swift, Dig. 295; Powell, Cont. 417; Whitney v. Brooklyn, 2 Conn. 406, We know of no power in a court of equity to com- pel the respondent to join the petitioner in pro- curing an appraisal, nor to make one, in such a case as this; and we see no occasion for the exercise of such a power if it exists. We think the petitioner has an ad*^quate remedy for the enforcement and protection of all his rights at law. There is manifest error in this record. In this opinion the other judges concurred, except DUTTON, J., who, having tried the case in the court below, did not sit. ESTATES ON LIMITATION. 149 HENDERSON et al. v. HUNTER et al.i (59 Pa. St. 335.) Supreme Court of Pennsylvania. Jan. 4, 1809. J. Barton, for plaintiffs in error. White & Slagle, for defendants in error. AGNEW, J. This was an action of trespass by church trustees under a deed of trust made by Thomas Pillow in 183G, for taking down and removing the materials of a church building in 1807. The case turns on the limitation in the deed. The legal estate of the trustees clearly has no duration beyond the use it was intended to pro- tect. The word "successors" is used to per- petuate the estate, but as the trustees are an unincorporated body having no legal succes- sion, there is nothing in the terms of the grant to carry the trust beyond its appropriate use. This brings us to the limitation of the use itself. It is for the erection of "a house or place of worship for the use of the members of the Meth- odist Episcopal Church of the United States of America (so long as they use it for that pur- pose, and no longer, and then to return back to the original owner), according to the rules and discipline which, from time to time, may be agreed upon and adopted by the ministers and preachers of the said church at their general conference in the United States of America." This is the main purpose of the trust, the other portions of the deed relating to the use being ancillary only to this principal object. The in- terjected words, "so long as tliey use it for that purpose and no longer, and then to return back to the original owner," are terms of un- doubted limitation, and not of condition. They accompany the creation of the estate, qualify it, and prescribe the bounds beyond which it shall not endure. The equitable estate is in the members of the church so long as they use the house as a place of worship in the manner prescribed, and no longer. This is the boundary set to their inter- est, and when this limit is transcended the es- tate expires by its own limitation, and returns to its author. The words thus used have not the slightest cast of a mere condition. No es- tate for any fixed or determinate period had ilrrelevant parts omitted. been granted before these expressions were reached, and they were followed by no proviso or other indication of a condition to be an- nexed. "A special limitation," says Mr. Smith, in his work on Executory Interests (page 12), "is a qualification serving to mark out the bounds of an estate, so as to determine it ipso facto in a given event without action, entry or claim, be- fore it would, or might, otherwise expire by force of, or according to, the general limita- tion." A special limitation may be created by the words "until," "so long," "whilst" and "dur- ing," as when land is granted to one so long as he is parson of Dale, or while he continues un- married, or until out of the rents he shall have made £500. 2 Bl. Comm. 155; Smith, Ex. Int. 12, 2 Coke, 12P-121; Fearne, Rem. 12, 13, note, p. 10. "In such case," says Blackstone, "the estate determines as soon as the contin- gency happens (when he ceases to be parson, marries a wife or has received the £500), and the subsequent estate which depends on such determination becomes immediately vested, without any act to be done by him who is next in expectancy." The effect of the limitation in this case was that the estate of the trustees terminated the moment the house ceased to be used as a place of worship according to the rules and discipline of the church, by the members to whose use in that manner it had been granted; and the re- version ipso facto returned to Thomas Pillow, the grantor. The abandonment of the house as a place of worship, therefore, became a chief question in the cause, because the title of the trustees to the property, and consequently their right to maintain this action, hinged upon this event. Then, as the use of the members of this church was to be according to the rules and discipline from time to time adopted by the general conference, it became a question whether the alleged abandonment of the house as a place of worship was by church authority, and according to the rules and discipline then existing; for a mere temporary suspension of services there, or a discontinuance of the use without authority, would not ipso facto deter- mine the use. Hence an inquiry both into the fact of abandonment and the authority of the church became essential. Judgment affirmed. 150 ESTATES IN REAL PROPERTY. HELM V. BOYD. (16 N. E. 85, 124 111. 370.) Supreme Court of Illinois. March 27, 18S8. Appeal from circuit court, Wabash county; C. C. Boggs, Judge. This is a bill in chancery filed in the circuit court of Wabash county by the appellee, Helen G. Boyd, against the appellant, James M. Helm, who is her brother. Appellee, whose maiden name was Helen G. Helm, inherited from her mother, who died in July or August, 1874, one-seventh of a tract of 742.41 acres in Wabash county, and one-seventh of a part of block 18, in the town of Grayville, in White county. By a quitclaim deed dated and ac- knowledged January 10, 1882, and recorded on June 9, 18S4, in White county, and on January 21, 1885, in Wabash county, appellee and her husband, James S. Boyd, conveyed the said one-seventh interest in said property to John J. Helm, appellee's father, for an expressed con- sideration of $1,000.- By a quitclaim deed dated and acknowledged January 17, 1885, and recorded January 21, 1885, John J. Helm and his wife, Annie V. Helm, (the latter being ap- pellee's step-mother,) conveyed said interest for an expressed consideration of $1,000 to the ap- pellant, .Jolin J. Helm's son, reserving to John J. Helm the use and benefit of said premises during his life. Appellee alleges in her bill that her one-seventh of said property was worth $3,- 000 on January 10, 1882; that on that day her father loaned her $1,000, without interest, and that she and her husband made the quitclaim to him to secure such loan; that the deed was not intended by her and her father to be an absolute one, but that it was expressly agreetl between them that he should hold the deed and the land as security for the loan, and should r^convey the land to her upon repayment of the $1,000; that when her father deeded her interest to defendant, her brother, the latter had due notice and full knowledge of her rights, and of the terms on which her father held the property; that it was expressly agreed between her father and the defendant that she should have the right to redeem upon paying defendant $1,000, with legal interest; that defendant, since the death of John J. Helm, their father, in March, 1S8G, has collected $300 of rents; that on December 2, 1886, she tendered to defendant $1,000, with legal interest, and offered to pay him what was due to him, but he refused to accept the money or reconvey the premises. The bill prays for an account, and that, upon the payment to defendant of the amount due him, he may be required to reconvey. and de- liver possession of the premises to the complain- ant. The answer admits the original owner- ship by complainant, and the execution of the quitclaim deeds, but denies that the deed to John J. Helm was made to secure a loan, and claims that it was made to carry out a sale of the property, and that John J. Helm paid com- plainant $1,000 as purchase money. The an- swer also denies that when the defendant took the deed from his father he had any notice of complainant's alleged interest in the premises,, and claims that he bought the property in good faith, and paid $1,000 for it, and that $1,000 was its full value; and furthermore denies that defendant agreed to allow complainant to re- deem, or that he collected $300 of rents. The answer claims the benefit of the statute of frauds. Replication was filed to the answer, and the cause was heard upon bill, answer, replication, and proofs taken and filed. The circuit court found the allegations of the bill to be true, and decreed that appellee should pay to appellant, within 60 days, $992.40, with 6 per cent, interest from May 26, 1887, till paid, and that thereupon appellant should convey all his right, title, and interest in the premises to ap- pellee, and upon his failure to make such con- veyance within 20 days after such payment, it was ordered that the master make the deed, etc. Bell & Green and Thomas G. Parker, for ap- pellant. J. R. Williams, for appellee. MAGRUDER, J. (after stating the facts). The first question is whether the deed from ap- pellee and her husband to her father, John J. Helm, was an absolute conveyance or a mere mortgage security. The statute says: "Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage." Starr & C. Ann. St. p. 1636, c. 95, entitled "Mortgages," § 12. A deed absolute on its face may be shown by parol to be a mort- gage. The law will, however, presume, in the absence of proof to the contrary, that such a deed is what it puri>orts to be, — an a.bsolute con- veyance. The party who claims an absolute deed to be a mortgage must sustain his claim by proof sufficient to overcome this presumption of the law. Before a deed absolute in form will be held to be a mortgage, the evidence must be clear, satisfactory, and convincing. It must be made to appear clearly that such a conveyance was intended to be a mortgage at the time of its execution. The question is one of intention, to be ascertained from all the circumstances. Sharp V. Smitherman, 85 111. 153; Bartling v. Brasuhn, 102 111. 441; Bentley v. O'Bryan, 111 111. 53; Workman v. Greening, 115 111. 477, 4 N. E. 385. An examination of the testimony is necessary in order to see what the real intention of the parties was. It is not clear from the evidence whether appellee's mother died before or after July 1, 1874. But it is admitted by counsel on both sides that John J. Helm had a life-interest as tenant by the curtesy in the one-seventh part of the premises in question, which appellee in- herited from her deceased mother. When she deeded her one-seventh interest to her father, on January 10, 1SS2, she was only 20 years old, and had been man-ied only about six months. Appellee swears that her father proposed to her to advance $l,00Oto her husband, James S. Boyd, to start him in business; that her father said he did not want the land, and that the payment WHAT IS A MORTGAGE. 151 of the $1,000 was merely an advancement made to help her and her husband, and that it would all come back to her; that he told her the land had been left to her by her mother, and should all come back to her and her children; that she never askefl her father for money when he pro- posed to advance money on the land; that she never offered to sell the land to him, and he nev- er offered to buy it; that when she signed the deed he said to her: "You and Jim are young yet, and I merely do this to have a little juris- diction over it. As for the deed being recorded, there shall never be a scratch of the pen against your property. As far as the $1,000 is concerned I will make that risht with the other children;" that in July, 1SS5, when she learned that her father had recorded the deed from her, and had made a deed of the land to her brother, the ap- pellant, she asked him about it, and he replied: "I transferred to Jimmy Helm under the same conditions that I got it from you, and he is to let you have it back. I did it to keep Annie Lthe second wife] and her children from getting a foothold; * * * your brother will do what is right;" that when she made the deed to her father, she did not know how much land she owned or was conveying, or anything about its value; that an hour after she made the deed, her father paid $500, and the balance in small amounts from time to time; that there was no agreement between her and her father about paying him the $1,000," etc. James S. Boyd swears that in November and December, 1S81, and again about January 1, 1882, John J. Helm proposed to advance money to him to go into business by buying an interest in a printing-office, and said he would take a quitclaim deed on Helm's portion of the prop- erty, and let them have $1,000, part of which he would pay next morning; that "he requested me to explain the matter to my wife; he said for me to have no fears, for the amount would all come back to us children, and he would make it satisfactory with the other children;"' that John J. Helm "said he took the deed to have a little jurisdiction over us and the amount he advanced us, as we were both young, and that the deed should never be recorded;" that he talked with his wife, and told her to do what she thought best, and she said she was satisfied her father would "stick to what he says;" that the next morning he told Mr. Helm his wife "was willing to get or borrow the money;" that neither he nor his wife knew the amount or value the deed called for; that he never offered to sell his wife's land to her fa- ther, nor asked him to furnish money to go into business with; that when the deed was made Mr. Helm said: "I merely advanced this much money on the place; * * * eventually this will all come back to her; I will see that it is made up to the other heirs;" that his wife's father never stated that he expected the $1,000 to be paid back to him, and never asked for it. Annie V. Helm, widow of John J. Helm, and Btep-mother of appellee, swears that her hus- band told her, before Mrs. Boyd made the deed to him, tliat he wanted to get the deed to keep them from disposing of the land to Mr. Gray Clbe brother of Helm's first wife;) that after her husband received the deed, he said he in- tended to give it back to appellee, and merely wanted to get it in such a way that she could not dispose of it; that he never li.ad the deed recorded on that account; that appellant wrote to his father, advising the latter to get a deed from Helen to prevent the land going inta Gray's hands, and that such letter was sent to Mrs. Malcom Eastwood, (appellant's sister,) to prevent it from falling into the wrong hands; that on the evening before she and her husband conveyed the premises to appellant, her husband said to her: "He [appellant] wants me to make that property over to him, and I don't want to do it;" that she (witness) did not want to sign the deeil to James, and reminded her husband of his promise to give the land back to Helen, and he said that "Jimmie would make it all right with her." Jane Kelton swears: "A short time before John J. Helm made the deed to James M. Helm for said lands I heard said John J. say Jimmie would hold the property for Ella the same as he had, and Mrs. Helm objected to doing it." George W. Cline, the attorney who drew the deed made by appellee to her father, swears that before the deed was executed John J. Helm told him that he wanted the deed so that he could control the proi>erty, and keep Boyd from disposing of it "if he got to drinking;" and that he was afraid Gray might get hold of it; that Helm also told him that the property would go to Ella at his death, and that "he did not want it to get mixed up with his other property." The testimony of Catharine A. Wintermute confirms the evidence of appellee and Annie V. Helm in several particulars. There is considerable amount of testimony in the record as to the value of the land. After a careful examination of it, we are satisfied that appellee's one-seventh interest in the prop- erty, notwithstanding the fact that it was an undivided interest, and subject to her father's life-estate, was worth very much more tlian $1,000 when she made the deed to her father, and when the latter made his deed to appollajit. Appellant testified as follows: "About the first of 1885 said John J. Helm told me he had bought Mrs. Boyd's share of her mother's es- tate; that he had advised her not to sell it, and told her that at his death the property would be worth more than she could then real- ize on it on account of his life-estate; that she insisted on his buying it, and said if he did not she would sell to some one else; that he bought the property to keep it from falling into other hands, and paid her $1,000 for it, and that he had to borrow money to pay for it. He pro- posed that I buy it from him at the same price to prevent Mrs. Helm No. 2 and her children getting a foothold in my estate." Mary W. Helm, a sister of appellant and ap- pellee, testified on behalf of appellant as fol- lows: "I heard a conversation between father and complainant, in which he advised her not to sell her interest in said lauds. He told her 152 ESTATES IN REAL PROPERTY. it would be worth more at his death than she could get for it then. She wanted $1,200, ajid he told her he could not give more than $1,000; that he did not think anyone would give more than that when they could not get possession until he died. She said she would rather have the money then, to buy a homestead. They were on the front porch, and I was in the hall. I think this was in July, 1881. I also heard pa tell Mr. Boyd that he thought Ella was very foolish to sell her land." ■Tohn J. Helm, Jr., and J. R. Eastwood testi- fied as to declarations of John J. Helm, to the effect that he purchased tJie property; but, as these declarations were made in his own favor, and in the absence of appellee, they were clear- ly incompetent. The circuit judge found that the deed from appellee to her father was a mere security, and we are unable to say that the evidence does not sustain his finding. The relation in which John J. Helm stood to his daughter naturally gave him great influence over her. The price which he is claimed by appellant to have paid her for her property was greatly below its real value. Her statement that he promised not to record the deed is confirmed by the fact that such deed, although executed on January 10, 1882, was not, as matter of fa.ct, recorded in White county until June 9, 1884, nor in Wabash coun- ty until Jamuary 21, 1885. It is true that she did not agree to pay back the $1,000 at a definite time. Her father would appear to have held out to her the idea that she would get enough from his estate to pay back the $1,000, or that there would be enough coming to her from his estate to cancel the indebtedness of $1,000. StUl, the impression made by the evidence is that, if he did not actually practice a fraud up- on her, he induced her to deed to him her prop- erty under the belief that in some way it was to come back to her, and that she was not to be troubled about repaying the amount ad- vanced to her. We said in Workman v. Green- ing, supra: "If it shall appear, no matter what the form of the transaction, that the convey- ance is in fact but an indemnity or security, it will be held a mortgage; and the character of liability against which indemnity is intended, or the Idnd or dignity of indebtedness intended to be secured, is important." The next question is whether appellant had notice of appellee's rights when he received the deed from his father of his sister's one-seventh interest. There is testimony that he had actual notice of such rights. Mrs. Helm, who is a dis- interested witness, swears that when she and her husband were having a conversation about her signing the deed to appellant, and while she was reminding him of his promise to give the laud back to appellee, and was refusing to sign the deed he wanted her to sign, the appel- lant was in the adjoining room or hall, and call- ed out to his father "Make her sign it,"— show- ing that he heard the conversation. The decree directs that there shall be return- ed to appellant the $1,000 which he paid to his father, with interest thereon, subject only to the deduction of rents received by him from the property. We think the decisiom of the court below does justice between the parties. The decree of the circuit court is afiirmed. WHAT CAX BE MORTGAGED. 153 NELIGH V. MICHENOR et al. (11 N. J. Eq. 539.) Court of Chancery of New Jersey. Feb. Term, 1858. A. Browuiug and T. P. Carpenter, for com- plainant. .). F. Randolph and P. D. Vroom, for defendants. WILLIAMSON, Ch, In the year 1852 the complainant entered into several agreements in writing, with different individuals and with the Atlantic Land Company Association, for the purchase of several tracts of land in the county of Atlantic. By the terms of the agreement, the several tracts were to be conveyed to him when the consideration money was paid. Under the agreements, he entered into possession. He then termed a partnership in business with John G. Miohenor, one of the defendants. By the terms of the partnership they were both to be equally interested in the several tracts of land embraced in the agreements. Michenor then entered into possession with the complainant. They made valuable improvements; and, on one of the tracts, erected a hotel, at a cost of upwards of fifty thousand dollars. On the 17th October, 1851, they made a settlement between them, and dissolved partnership. It was found, upon the settlement, that the complainant had made advances, most of which had been expended in the erection of the hotel and other improve- ments, to an amount exceeding thirteen thou- sand dollars. It was agreed, in the terms of the dissolution, that the complainant should convey to Michenor all his interest in the sev- eral tracts of land mentioned in the agreements; that Michenor should pay whatever remained due of the consideration money; that he should pay all the outstanding debts of the partnership, and should execute a mortgage upon the said land to secure the complainantthat judgment of $13,242.62, in five equal annual payments. The deed was executed, and delivered by the complain- ant to Michenor, and the latter executed and de- livered the mortgage, as agreed upon. Michenor never procured any title to the land to be made to him; but with his consent, in the year 1854, conveyances were made to Charles Harlan, an- other of the defendants, who undertook to pay what remained due of the consideration money and some mechanic liens which were upon the hotel. It does not appear that there was any agreement in writing between the complainant and Harlan, and there is no evidence as to the particulars of the agreement upon which he re- ceived the conveyances. The bill charges that although the deeds to Harlan are absolute on their face, it was un- derstood that he should take the title merely to secure future advances; it alleges that the arrangement between Michenor and Harlan was fraudulent, and was made for the purpose of defeating the complainant's mortgage, and that Harlan had notice of the mortgage before he took the conveyances. The main object of the bill is to establish the mortgage as a lien upon the several tracts of land particularly de- scribed in it, and conveyed to Harlan, and the priority of the mortgage. Harlan and Michenor have put in their an- swers to the bill separately. They both deny that Harlan took the conveyances to secure fu- ture advances, but allege that the title is ab- solute in him, and without any implied reser- vation in favor of Michenor. Michenor denies that he gave any potice to Harlan of the com- plainant's mortgage, and the latter denies that, at the time of the conveyances to him, or at the time he paid the consideration money, he had any knowledge whatever of the mortgage. And he denies the validity of the mortgage as a lien upon the property, even admitting he had notice. Was this mortgage a valid mortgage? and did Harlan have notice of it? If these questions are answered in the affirmative, the complainant is entitled to relief, leaving only one other question to be decided — whether the mortgage is entitled to priority over the advances made by Harlan. The validity of this mortgage is denied, upon the ground that Michenor, the mortgagor, had not any such title to, or interest in, the land as was capable of being mortgaged. The com- plainant was the purchaser under agreements with the vendor under hand and seal, that they would convey to him the land, at a future day, upon his paying the consideration money ex- pressed in the agreements. Has the purchaser, under such an agreement, an interest in the land which is the subject of mortgage? For if the complainant had an interest capable of be- ing mortgaged, Michenor had also, for all the interest which the complainant had, he assigned and conveyed to Michenor. In 2 Story, Eq. Jur. § 1021, it is said: "As to kinds of property which may be mortgaged, it may be stated that, in equity, whatever prop- erty, personal or real, is capable of an absolute sale, may be the subject of a mortgage. This is in conformitj' to the doctrine of the civil law — Quod emptionem, venditionem que recipit, etiam pignorationem recipere potest. Therefore rights in remainder and reversion, possibilities coupled with an interest, rents, franchises, and choses in action, are capable of being mortgages." Everything which is the subject of a contract, or which may be assigned, is capable of being mortgaged. The right or interest which the complainant had in the lands was created by contract; and it was the valuable right of hav- ing a legal conveyance of the land, upon his complying with the terms of the contract. He had acquired an interest in the land, which could not be aflfected, or conveyed away by the vendor, without a fraud upon the vendor's rights. And a purchaser, who should have re- ceived a conveyance with knowledge of the ex- isting agreement, would have been held, in equi- ty, as the vendor himself was in fact, a mere trustee for the complainant. Equity considers the vendor as a trustee for the vendee of the real estate, and the vendee as a trustee for the vendor of the purchase money. The vendee is 154 ESTATES IN REAL PROPERTY. so far treated as the owner of the land that it is devisable and descendible as his real estate, and the money is treated as the personal estate of the vendor, and goes to his personal repre- sentatives at his death. 2 Story, Eq. Jur. § 112. There cannot be a doubt that such an interest as the complainant had under his con- tracts for purchase, and which he assigned to Michenor, is capable of being mortgaged. It is the subject of an equitable lien or trust, which a court of equity will enforce and protect. In- terests in property are protected by courts of equity which are not recognized at law as valid or effectual as subject matters of legal convey- ances or assignments. 1 Pow. Mortg. 17, in enumerating the things which are capable of being mortgagetl, says: "Everything which may be considered as pi-operty, whether, in the tech- nical language of the law, denominated real or personal property, may be the subject of a mortgage. Advowsous, rectories and tithes may be the subject of a mortgage. Reversions and remainders, being capable of grant from man to man, are mortgagable. Possibilities, also, being assignable, are mortgagable, a mortgage of them being only a conditional assignment." A tenant at will has not such an estate or prop- erty in lands as can be mortgaged, but any es- tate in fee simple, fee tail, for life or years, in any lauds, or in any rent or profit out of the same, may be mortgaged. 1 Pow. Mortg. 18. The case of Parkist v. Alexander, 1 Johns. Ch. 31)4, was, in its leading features, very simi- lar to the present case, and its decision neces- sarily involved the question we are now con- sidering. Tucker made a parol agreement with Alexander, who acted as agent for Ellis, the owner of the property, for a lease to Tucker, in fee, for a lot of laud, subject to the annual rent of three pounds. Parkist, the complainant in the suit, purchased Tucker's right, and took possession of the premises, and made valuable improvements. He then sold the premises to McKnight, and gave him a quit-claim deed; and, to secure the payment of the purchase money, took his bond and mortgage, which was duly recorded. Alexander procured the lease from Ellis, the owner of the premises, and then Mc- Knight conveyed to Alexander for §700. The answer denied that Alexander had any notice of the mortgage. The chancellor sustained the mortgage, and decided that the registry of it was notice to a subsequent bona fide purchaser. It will be observed, that when McKnight mort- gaged the premises, he had no other interest in them than the assignment of Parkist's right, under a verbal agreement for a lease between Tucker and the agent of Ellis, the owner, and the right to which lease Parkist had purchased of Tucker. The interest which the mortgagee had in the laud was an interest similar to that which Michenor had when he mortgaged to the complainant. McKnight had a right for a lease in fee, subject to the payment of an annual I'ent. If an interest like that was capable of being mortgaged, then surely Michenor, who had a right to a conveyance in fee, had such an in- terest as would support a mortgage. The mere fact of all the consideration money not having: been paid, cannot affect the question, whether his interest was such as could be mortgaged. I think that Michenor had an interest capable of being mortgaged, and that it created a valid lien upon the laud subject to the rights of the ven- dor under the agreement. Did Harlan have notice of the mortgage? The mortgage was duly recorded. It is insist- ed that the registry was notice. It does ap- pear to me, notwithstanding the decision of Parkist v. Alexander, that the registi-y of such a mortgage ought not to be considered as no- tice. If it is notice, it is notice to all the world. Now if Leeds, one of the persons with whom the complainant made an agreement to pur- chase, had sold the premises to a bona fide pur- chaser without actual notice of this mortgage, would such purchaser have been aifected by the registry of such equitable mortgage? The agreement was not recorded. There was no authority to record it. A bona fide purchaser would not be affected by such agreement. If not, could he be affected by the registry of a mortgage executed by the vendee of such agree- ment? The object of the registry is to give notice to subsequent purchasers. But the reg- istry of a mortgage like this is no protection. The title upon the record was in Leeds, and finding the title in him, a person who went ta the record to search for encumbrances upon the premises would have no intimation that it was necessary to search in the name of Mich- enor. There was nothing upon the record to show^ that he had any interest in the land, or to give him any clue whatever to this mort- gage; and if he was required to search for such a mortgage, then he would be obliged to search them through every name to be found in the registry books. But I do not deem it necessary to decide this point. I think it is proved, beyond all dispute, that Harlan had actual notice of this mortgage.^ In his petition to open the decree pro confesso, which was obtained against him in this cause, and which is under oath, he says that on or about the 2oth of May, 1855, he took a deed from Charles Leeds and wife for the land em- braced in their agreement with the complain- ant; that, on the 19th day of May, 1855, Hack- ett and wife executed a deed to him for the land embraced in their agreement with the com- plainant, w'hich was delivered on or about the 25th of May, 1855, and that the Camden and Atlantic Land Company executed a deed to hiui on the 27th of April, 1855, for the land men- tioned in their agreement with the complainant, but which was not delivered until the first of the month of June, 1855. In his answer, he stales that before he had any knowledge or no- tice whatever of the complainant's mortgage, he had not only made the agreement with Mich- enor, and paid the money for the property, but that he had obtained the title deeds for the property before such knowledge. He further states that some person, some time in the spring of 1855, brought to him a mortgage purporting to be given by Michenor WHAT CAN BE MORTGAGED. 155 to the complainant, and said to cover the prop- erty, or some part thereof, purchased by him, but whether it did so cover it or not, he can- not positively say, but that prior to that time his agreement with Michenor had been made and consummated, the money paid, and the deeds all been executed, and that the deeds from Hackett and wife and Leeds and wife had been actually delivered, and that he thinks and believes that the deed from the Camden and Atlantic Land Company had also been de- livered. In his petition he states that the first information or knowledge he ever had that there was any such mortgage or agreement be- tween the complainant and Micheuor was some time after the deeds had been executed and de- livered, and the purchase money, in full, paid, and that such information was given to him by Judge Carpenter, the counsel of Michenor, which was some time after the deed from the land company had been made, and was on the day, and at the time, the purchase money was paid, and the deed of the company delivered. It is possible, with some difficulty, to recon- cile the discrepancies between the petition and the answer with a disposition to tell the truth; but the evidence so completely disproves the statements of both, as to render such an at- tempt altogether unnecessary and unavaihng. James H. Castle says that in May, 1855, be- tween the 10th and 15th, the complainant placed the mortgage in his hands to sell for him, and requested him to make application to Har- lan; that on or about the 20th of May, he laid the mortgage before Harlan; that he spent some time with him about the matter; that Har- lan examined the papers carefully, and took a memorandum of the property, and the dates of the mortgage, &c.; that he examined the map, and when they separated said he would see wit- ness again upon the subject; that on the next day he called and asked to look at the papers, which were shown him, when he remarked that the mortgage was not worth the paper on which it was written. Witness says, in consequence of Harlan's remark, he went to the comj^lain- ant, and told him he had better take legal counsel, and recommended Judge Carpenter. Judge Carpenter testifies, refreshing his mem- ory from an entry in his docket, that the com- plainant retained him on the 25th of May, and then placed the mortgage in his hands. There was no one of the deeds delivered, and no money paid before the 25th of May. Harlan so states in his answer and his petition. So that it is proved that before he received a deed, or paid any money, he had full notice of the mortgage. Isaac Loyd testifies that he was the secretary and treasurer of the Camden and Atlantic Land Company; that the deed from that com- pany to Harlan was delivered by the witness to Harlan on the 8th of June, 1855, and at that time he received from him the purchase money. The witness further testifies that Judge Car- penter requested him to give notice to Harlan of the mortgage before its delivery; that he gave him the notice, and that Harlan made no reply, but smiled as though he knew all about it, and as if it was of no consequence. • The evidence establishes the fact that Har- lan had actual notice of the complainant's mort- gage before his purchase. It appears that, at the time of Harlan's pur- chase, there was due and payable to the gran- tors, for purchase money upon their several agreements the sum of five thousand two hun- dred and eighty-one dollars, and that this amount was paid by Harlan. He also made other advances to satisfy encumbrances upon the property. Under ordinary circumstances, these payments would have been decreed exist- ing liens upon the property in the hands of Har- lan, having priority over the complainant's mortgage. Although Michenor, in his agree- ment with the complainant, was bound to pay the purchase money, it appears he was unable to do so. It was necessary the money should be paid, or the title of the vendee under the agreement would have been forfeited. The pay- ment of this money, therefore, was necessary in order to complete the title which supports the mortgage. If a third person, under such cir- cumstances, had advanced the money in order to prevent a forfeiture of the vendee's rights under the agreement, I think it would have been equitable that he should be reimbursed. But Harlan claims no such equity. He does not pretend that he paid the money for the pur- pose of protecting the mortgage. On the con- trary, he is detected in an attempt to deprive the complainant of his security. His object was to defeat the mortgage; and having been thwarted in this unlawful purpose, he has no claim whatever to the interference of this court for his protection. He must stand upon his le- gal rights. There was , an objection made, that at the time of filing the bill there was no default of payment of anything due upon the mortgage. If such were the fact, the complainant had a right, under the circumstances, to file his bill to protect his lien. That being established, he has now a right to have it enforced for what- ever may be due upon it at the time of the de- cree. There must be a reference to a master to take an account of what is due upon the mortgage and upon the other encumbrances, which ap- pear, by the pleadings, to be undisputed. In taking the account, Michenor will have an op- portunity of showing what credit he is entitled to upon the mortgage, and for that purpose the master can use the depositions already taken, and may take such other testimony as the par- ties may see proper to offer. 156 ESTATES IN REAL PROPERTY. RUSSELL'S APPEAL. (15 Pa. St. 319.) Supreme Court of Pennsylvania. 1850. Appeal from court of common pleas, Wayne county. Crane & Dimmick, for appellant Russell. Mr. Mallery, for appellee. Mr. Miner, for Mc- Gowan. Mr. Waller, for Graves and others. COULTER, J. Roberts, the defendant, as whose estate the land was sold, purchased it by articles of agreement, dated 11th April, 1846, for $S00, of which he paid $463, went into pos- session, and remained in possession until the sale and distribution of the money below. Rob- erts became embarrassed with debts, and on the 5th July, 1848, he executed to Stone & Graves and Graves & Moore an assignment of the con- tract with Dunn under which he held the land, and all his right and title thereby acquired, as collateral security for the amount due them. This assignment was never recorded, and Roberts still remained in possession. On the 19th August, 1848, after the unrecorded as- signment, Russell obtained his judgment, and on the 9th September following, McGowan ob- tained his judgment. These two judgments claim the money produced by the sale, accord- ing to their priority. But on the 1st Decem-* ber, 1848, Roberts, by parol, surrendered the land to Graves, one of the assignees; and on the same day, Dunn and wife conveyed to C. C. Graves, consideration mentioned in deed, $900. On the 4th December, 1848, Graves and wife conveyed to H. D. Roberts, the defendant, who gave a judgment note to Graves for $800, which was immediately entered up. To this last judgment the court below award- ed the whole money made by the sale on Rus- sell's judgment. It was contended by Russell and McGowan that they were entitled to the whole fund, because the note given by Russell falsely and fraudulently recited that it was for the purchase-money. But it is well enough to deliver the case at once from this argument, be- cause these judgments could only bind the equi- ty, if they bound anything, which was in Rob- erts at the time they were obtained, that is, after the assignment to Graves & Moore. The stream cannot rise above the fountain. And the balance of purchase-money then due was a previous, valid, subsisting lien. The shuflaing between Dunn, Roberts, and Graves cannot give to Russell and McGowan more than they were entitled to, nor deprive Dunn or his repre- sentative of that to which he had a lawful claim. The real question then is, whether the judg- ments of Russell and McGowan bound the eq- uity which Roberts had in the land at the time of the assignment to Graves & Moore? And that will depend upon the effect of that assign- ment. It was not an absolute sale or transfer of the equity, because it is expressed on its face to be a collateral security for the payment of a debt. It was, therefore, at most, nothing more than a mortgage. Even although a con- veyance be absolute in its terms, if it is intend- ed by the parties to be a mere security for the payment of a debt, it is a mortgage. Keene v. Gilmore, 6 Watts, 409; Clark v, Henry, 2 Cow. 324; Henry v. Davis, 7 Johns. Ch. 40. Roberts still continued the debtor of Graves & Moore. The debt was not extinguished; it was, there- fore, a mortgage. Nor has the writing the dis- tinctive marks of a conditional sale, for the same reason, to vdt, that the original debt was by the face of the papers till subsisting. But it was never recorded, and, therefore, must be postponed to a subsequent judgment. Jaques v. Weeks, 7 Watts, 261; 17 Serg. & R. 70; St. March 28, 1820; Dunl. Laws Pa. (2d Ed.) p. 354. It is contended, however, that the con- tract for the conveyance of the land to Roberts was but a chose in action, and that the assign- ment passed the title, without the necessity of recording; that it is not within the recording acts; and Craft v. Webster, 4 Rawle, 241, and Mott V. Clark, 9 Pa. St. 399, were cited. But these cases do not carry the defendant in error through. An article of agreement for the sale of land, accompanied by delivery of possession and payment of part of the purchase-money, is much more than a chose in action; it is an abid- ing interest in the land itself. It may be bound by judgment; is the subject of judicial sale, not as a chattel, but as an interest in the land. In the early history of Pennsylvania, improve- ment rights were considered as chattels. But that time has long passed, and pre-emption or inchoate interests are bound by judgments and sold, because every interest arising out of real estate, equitable as well as legal, is considered as an interest in the land. Thousands of acres are held in this commonwealth by location and survey only. It would sound strangely to a lawyer of the interior to say that these inter- ests were not real estate, and the transfer or incumbrance of them not subject to the record- ing laws. Such a doctrine would upset estates and change the accepted principles of the com- monwealth. They have from ancient time been dealt with by the people as interest in real es- tate, like other equitable interests in land; and, being the subject of contract and sale as such, there is the same reason for their being subject to the recording acts as the legal title. The ex- perienced and learned counsel states that he has been unable to find any reported case in which such equities were adjudged to be the subject of the recording acts. But it may never before have been drawn in question. I know very well, and I think every practitioner is acquaint- ed with the fact, that mortgages are often given upon equitable estates, and that equitable estates are often the subject of bargain and sale; and I may say, that I don't recollect to have seen it contended in any case that the re- cording acts applied only to strictly legal titles, or that judgments were liens or attached only upon legal estates. The subsequent judgments, therefore, became liens at the time of their en- try upon the equitable interest of Roberts, the assignment to Graves & Moore being merely a EQUITABLE MORTGAGE. 157 mortgage or security for a debt, and therefore, not being recorded, must give way to the sub- sequent judgments. The decree is therefore reversed, and it is modified, so as to award to the legal title, or those representing it, so much of the money or fund in court as was due for balance of pur- chase-money by Roberts at the time Russell ob- tained his judgment; and the residue is award- ed to Russell's judgment, unless the residue will more than satisfy it; and, in such case, what remains is awarded to McGowan's judgment. The record is remitted to the court below for the purpose of carrying out this modified decree. 158 ESTATES IN REAL PROPERTY. GEORGE V. KENT et al. (7 Allen. 16.) Supreme Judicial Court of Massachusetts. Worcester, Oct. Term, 1863. Bill in equity to redeem land from a mort- gage. It appeared at the hearing that on the 7th of May, 1850, Nathaniel Chessman, being the owner of a parcel of land on the south side of Water street in Milford, containing about three acres, mortgaged it to Maxcy Cook; that after- wards, on the 1st of July, 1853, he conveyed a small lot on the easterly part thereof to Hugh Galliher by a deed of warranty which was duly recorded; that afterwards, on the 5th of June, 1854, he conveyed a small lot on the westerly part thereof to Patrick Murphy, by a deed of warranty which was not recorded; and that afterwards, on the 2d of November, 1854, he conveyed another small lot lying between the lots conveyed to Galliher and Murphy, to the plaintiff, by a deed of mortgage which was duly recorded, containing the following description of the mortgaged premises: "Beginning at the northeasterly corner of the premises, on Wa- ter street, on land of Hugh Galliher; thence S. 2° W. by land of said Galliher eight rods; thence S. 871^4° W. five and one-half rods to land of Patrick Murphy, bounding southerly on land of N. Chessman; thence N. 2° E. eight rods to said street, bounding westerly on land of said Murphy; thence easterly by said street five and one-half rods to the place of begin- ning." The mortgage to Maxcy Cook was as- signed to the defendants in February, 1861; and in May, 1861, they commenced an action against the plaintiff to foreclose it, describing in their writ the lot conveyed to the plaintiff, and no more, and obtained a conditional judgment in February, 1862, for the sum of $1,679.15. In April, 1861, the lot conveyed to Murphy be- came vested in the defendant Kent by mesne conveyances. The plaintiff contended that the Murphy lot should be held to contribute, in proportion to its value, towards the redemption of the Cook mortgage; and the case was reserved by Chap- man, J., for the determination of the whole court. P. C. Bacon (P. E. Aldrich, with him), for plaintiff. G. F. Hoar, for defendants. CHAPMAN, J. It is not denied that the plaintiff has a right to redeem on payment of the amount for which conditional judgment was rendered; but he claims the right on payment of a less sum. He insists that as his deed was a deed of warranty, and was made and record- ed, while the deed to Murphy was unrecorded, he has a right to hold the Murphy lot liable to contribute to the payment of the Cook mortgage. This position would be correct if there were no other facts to affect it. But the defendants re- ply that he had notice of the deed to Murphy. The fact relied on to prove such notice is, that Murphy's lot adjoins him on the west, and in his deed he is bounded westerly on land of Pat- rick Murphy. The court are of opinion that this was sufficient notice of Murphy's title. Be- fore the enactment of Rev. St. c. 59, § 28, ac- tual notice of an unrecorded deed was not nec- essary; and circumstantial evidence of title was held to be sufficient. But the Revised Statutes made a change in this respect, and required that there should be actual notice. Curtis v. Mun- dy, 3 Mete. (Mass.) 405; Pomroy v. Stevens, 11 Mete. (Mass.) 244; Mara v. Pierce, 9 Gray, 306; Parker v. Osgood, 3 Allen, 487. The case of Curtis v. Muudy is, to some extent, over- ruled by the later cases; yet none of them hold it to be necessary that the notice shall be by actual exhibition of the deed. Intelligible in- formation of a fact, either verbally or in writ- ing, and coming from a source which a party ought to give heed to, is generally considered as notice of it, except in cases where particular forms are necessary. In this case no particu- lar form is necessary. The description of the land in the plaintiff's deed was equivalent to an affirmation of his grantor that the land lying wes-t of it was owned by Patrick Murphy, by virtue of some proper instrument of convey- ance. He knew from this information that Murphy's title was prior to his own. Having such a title, and the plaintiff having notice of it, MurphJ' and his grantees are not liable to con- tribute towards the redemption of the Cook mortgage. Chase v. Woodbury, 6 Cush. 143; Bradley v. George, 2 Allen, 392. The plaintiff is entitled to redeem on pay- ment of the amount of the conditional judg- ment against him, with interest, deducting rents and profits received. ACCOUXTIXG. 159 GASKELL V. VIQUESNEY et al. (23 N. E. 791, 122 Ind. 244.) Supreme Court of Indiana. Feb. 21, 1890. Appeal from circuit court, Hendricks conuty, A. C. Aykks, Judse. /.. A. Liarnett, lor appellant. Ot^o. C. Harvey and L. M. Cawpbell, for appel- lees. COFFEY. J. On the 3()th day of August, 1876, Jules A. Vique.sney and wife executed to George W. Robinson a mortgage on real estate in Danville, Hendricks county, Ind., to secure the payment of a promissory note for the sum of .f 1,446.76, which mort- gage s\-as duly recorded. Prior to said date the said Jules A. Viquesney had exe- cuted two other mortgages upon the same real estate, one to Enion Singer, and an- other to Tracy and Bingham, the last- named being the senior mortgage on said real estate. The mortgage executed to Singer was foreclosed in the Hendricks circuit court, and the property therein de- scribed bid in by John M. Shirley and Will- iam N. Crabb for the sum of $973.93; and on the 28th day of May, 1878, they received a sheriff's deed therefor. George W. Robin- son was not made a party to the suit to foreclose this mortgage. The appellant subsequently became, and now is, the owner of the note and mortgage executed to the said Robinson, and now prosecutes this suit for the purpose of being allowed to redeem from thesale on theSinger mort- gage, and to charge the said Sliirley and Crabb with the rents and profits of said real estate duinng the time they have held and been in possession of the same. Crabb has conveyed his interest in the property to Shirley." The appellee Shirley answered : (1) That he was the owner in feeof theland described in the complaint, having pur- chased the same of Thomas J. Cofer, as- signee in bankruptcy of the said Jules A. Viquesney, on the 20th day of June, 1877, and having received a deed therefor from said Cofer as such assignee, the said Vi- quesney having previously been adjudged a bankrupt by the United States district court for the state of Indiana; that he al- so held title to said real estate under a sheriff's deed therefor executed by the sheriff of Hendricks county on the 28th day of May, 1878, which deed was execut- ed to him on a sale of said premises by the sheriff of said county in the foreclosure proceeding set out in the complaint on the Singer mortgage, and that the mortgage executed to the said George W. Robinson, which the appellant is now seeking to foreclose, was executed without any con- sideration, and for the purpose of cheat- ing, hindering, and delaying the creditors of the said Viquesney. The second para- graph avers that the mortgage in suit was given as an indemnity, and that said K(ji)Uison had neverbeen damaged orcom- pelled to pay the debt against which the mortgage was given to secure him. (3) In the third answer to so much of the complaint as demands and requires him to account for the rents and profits of the real estate described in the complaint, he averred that he was the owner in fee of the real estate described in the complaint by virtue of a judicial sale made of the same by order of the district court of the United 'States for the district of the state of Indiana, on the 2Uth day of June. 1877, by one Thomas Cofer, who was the as- signee in bankruptcy of the said Jules A. Viquesney, the said Viquesney having prior thereto been duly adjudged a bankrupt by said court upon proper petition; that the said Cofer executed to him a deed for said real estate, which was duly confirmed by said district court: that he is also tlie owner of said real estate, and holds title thereto by virtue of a sheriff's deed exe- cuted to him by the sheriff of Hendricks county, Ind., on the 2Sth day of May, 1878, pursuant to a sale of said real estate in the foreclosure proceedings on the Singer mortgage setup in the complaint. Tiiis' answer also sets up tiie mortgage execut- ed by Viquesney to Tracy and Bingham; alleges the foreclosure of the same in the district court of the United States for the district of Indiana; and the payment of the sum of $1,26.5.74 by the appellee, in sat- isfaction thereof, to protect his title. The appellee Shirley also filed a cross-com- plaint, in which he sets up the amount paid at the sheriff's sale on the Singer mortgage, and the amount paid to dis- charge the Tracy and Bingham mortgage and decree, and asked to be allowed there- for in the event a decree was entered per- mitting the appellant to redeem. The court overruled the demurrer to this an- swer, and the appellant excepted. Upon issues formed, the cause was tried by the court, who entered a finding and decree that the appellant was entitled to redeem the property covered by the Robinson mortgage upon payment to the appellee Shirley of the sum of $3,992. The appellant filed a motion for a new trial, w^hich was overruled, and she except- ed. The errors assigned ave— First, that the court erred in overruling the appel- lant's deniurrrer to the first and second paragraphs of the answer of the appellee Shirley; second, that the court erred in overriding the appellant's demurrer to the third i)aragraph of the answer of Shirley; third, that the court erred in overruling the appellant's motion for a new trial. As the appellant does not discuss the first assignment of error, the same may be regarded as waived. The first objection urged against the third paragraph of the answer is that it attempts to answer the whole complaint, and that it can, at most, amount to an answer to so much of the complaint as seeks to require the appellee Shirley to ac- count for rents and profits. Counsel is in error in assuming that the answer at- tempts to answer the whole complaint. It is addressed to so much of the com- plaint only, as we understand the plea, as seeks to charge th^ appellee with the rents and protits of the mortgaged premises dur- iu"- the time he occupied them. The ques- tion is therefore presented as to whether the answer contains facts sufficient to bar the appellant's claim for rents and profits of the mortgaged premises. It is believed to be the universal rule, in all cases where the mortgagee takes and re- tains possession of the mortgaged prem- ises under his mortgage, that he must ac- 160 ESTATES IN HEAL PROPERTY. count for the rents and profits received b.yhim from the premises while he holds the same under his mortgage. 2 Jones.Mortg. (4th Ed.) § 1114; Troost v. Davis, 31 Ind. 34; Hannon v.Hilliard,83Ind.362; Arnold V. Cord, 16 Ind. 178; Taylor v. Conner, 7 Ind. IIG. Such rule, in the absence of some stat- ute upon the subject, rests upon the rea- sonable doctrine that, while the mortgagee is the holder of the legal title to the mort- gaged premises, he holds such title, never- theless, subject to the equitable right of the mortgagor to pay the debt, and thus destroy or put at an end his legal title, and that the mortgagee is entitled to no more than his debt, which the mortgage was intended to secure. Hence it is that, when the mortgagor desires to redeem from a mortgagee who has been in the possession of the mortgaged premises un- der his mortgage, he has the right, in a court of equity, to call upon the mortga- gee to account for the amount received by Avay of rents and profits, for the purpose of determining how much, if anything, is re- quired in order to discharge the mortgage debt. This doctrine extends to cases where there has been an attempt to sell the premises under the mortgage, where such sale is defective, and does not divest the title of the mortgagor. Hannon v. Hilliard, supra. This right to compel an accounting for rents and profits extends, also, to a junior incumbrancer. He may compel a senior mortgagee, who has been in possession under his mortgage, to ac- count to the same extent and in the same manner as the mortgagor might compel an accounting. His right to compel such an accounting does not rest upon any ob- ligation of the senior mortgagee to him, for there is no contract between them, but it rests upon the fact that the senior mort- gagee is under obligation to the mortga- gor to account; and that by reason of his junior lien he has the right, in equity, to stand in the place of the mortgagor, and compel the application of the rents and profits to the satisfaction of the senior mortgage. The junior mortgagee has no riglit. therefore, to compel an accounting when the mortgagor has no such right; for it is through the mortgagor, and the equity existing between him and the se- nior mortgagee that he is enabled to com- pel an application of the rents and profits to the satisfaction of the senior mortgage. For these reasons it is well settled that, in order to charge a luortgagee with rents and profits, it must be shown that he has occupied the mortgaged premises under his mortgage. If the title of the mortgagor has been divested, and the mortgagee has been in possession under a title derived from the mortgagor, he is not chai'geable with the rents and profits of the mort- gaged premises. 2 Jones, Mortg. (4th Ed.) S§ 1114-1120; Daniel v. Coker, 70 Ala. 2G0; Hart V. Chase, 46 Conn. 207; Van Duyne v. Shann, 41 N. J. Eq. 312, 7 Atl. Kep. 429; Catterlin v. Armstrong, 79 Ind. 514, 101 Ind. 258; Johnson v. Hosford, 110 Ind. 579, 10 N. E. Rep. 407, and 12 N. E. Rep. 522; Renard v. Brown, 7 Neb. 449. In the case of Catterlin v. Armsti^ong, 79 Ind., supra, it was said by this court that "a purchaser at afoi-eclosuresale, defective because a junior mortgagee was not made a party, upon a subsequent redemption by the latter, must account for the rents and profits, if such sale operates merely as an assignment of the first mortgage. Rut if the sale operates not only as an assign- ment of a prior mortgage, but as a fore- closure of the equity of redemption, subject to the junior mortgage, the purchaser, standing in the place of the mortgagor or owner of the premises, is not liable to ac- count for the rents or profits. " It follows from what we have said, and from the au- thorities above cited, that the third para- graph of the answer of the appellee Shirley was suffiicient to bar the appellant's com- plaint, in so far as it sought to compel the former to account for the rents and profits of the mortgaged premises. It discloses the fact that the title of the mortgagor, Viquesney, had been divested, and vested in the appellee Shirley. As Shirley held in the capacity of owner of the premises, and not as mortgagee, he was not liable to ac- count for rents and profits. The case of Murdock v. Ford, 17 Ind. 52, is in seeming conflict with the later case of Catterlin v. Armstrong, supra. In so far as it seems to hold that a pui-chaser at a foreclosure sale which divests the title of the mortga- gor is liable for rents and profits to a ju- nior moi'tgagee, the same is disapproved. The court did not err in i-efusiug to permit the appellant to pi'ove the value of the rents and profits of the mortgaged prem- ises, as it was admitted on the tinal that the title of the mortgagor had been ex- tinguislied before the appellee Shirley took possession. The assignment in bankrupt- cy divested his title, and vested it in the assignee, who by his deed vested it in Shir- ley. Nor do we think the court erred in admitting in evidence the deed executed by the assignee in bankruptcy to Shirley. It tended to support the allegations in the appellee's answer, and to prove that Shir- ley was in possession as owner, and not as mortgagee. It is earnestly insisted, however, thatthe cii'cviit court erred in fixing the amount to be paid by the appellant in order to re- deem. It is insisted tliat, in ascertaining the amount to be paid, the court not only allowed the amount due on the Singer mortgage and the Tracy and Bingham mortgage, but that it allowed also the costs made in tiie foreclosure of both said mortgages. It seems to be too well set- tled to admit of controversy that, where a junior mortgagee desires to redeem from a sale on a senior mortgage, he may do so, where he was not made a party to the foi'eclosure suit, without paying the costs of such suit. Where he is not made a party, the ftireclosure is, as to him, a mere nullity. He is only required to pay tlie mortgaye debt, with interest. Mc- Kernan v.'Neff, 43 Ind. 503; Hasselman v. McKernan, 50 Ind. 441; Hosford v. John- son, 74 Ind. 479; Sliirk v. Andrews, 92 Ind. 510; Curtis v. Gooding, 99 Ind. 46; Daugh- ertv V. Deardorf, 107 Ind. 527, 8 N. E. Rep. 296; Nesbit v. Hanway, 87 Ind. 400. There is no allegation in the complaint in this case as to the amount due on the Singer mortgage, nor is there any allega- tion as to the amount due on the mortgage executed to Tracy and Bingham. It is accou:n^tixg. 161 somewhat difficult to ascertain from the ev- idence in the record the exact amount due on these senior liens. As the appellant desired to redeem by the payment of a sum less than the face of these claims, it was her duty to exhibit to the court try- inj? the cause the exact state of the ac- counts. However, it is sufficient to say in this case that it does not a]tpear on the face of the record before us that the costs GATES.R.P.— 11 of foreclosing these senior liens is included in the amount which the court adjudged against the appellant as the amount nec- essary to be paid for the redemption of the mortgaged premises. As these senior liens drew interest at the rate ol 10 per cent, per annum, it was proper to count interest at that rate to the date of the trial. We find no error in the record. Judgment affirmed. 162 ESTATES IN REAL PROPERTY. WITHAM V. BROONER. v63 lU. 344.) Supreme Court of Illinois. Jan. Term, 1872. Appeal from circuit court. Mason county; Charles Turner, Judge. Dearborn & Campbell, for appellant. Lacey & Wallace, for appellee. THORNTON, J. The refusal to admit in evidence the deed to Hallowbush is the only er- ror assigned. The deed was executed to Hallowbush "in trust for White and Smith." The trustee had no trusts to execute— no duties to perform. He was a mere naked trustee. One of the cestuis que trust had executed a deed to the same land to the plaintiff below, under which he claimed title. In whom was the legal estate, by operation of the deed to Hallowbush — the trustee or the cestuis que trust? Our statute is a substantial re-enactment of the twenty-seventh statute of Henry VIII., usually termed the "Statute of Uses." Leav- ing out some of the verbiage, it enacts that when any person shall be seized of any lands, to the use, coutidence or trust of any other person, by any bargain, sale, agreement or oth- erwise, in such case all persons that have such use or trust in fee simple shall be seized, deem- ed and adjudged in lawful seizin, estate and possession of and in the same land, to all in- tents, in law, as they shall have in the use or trust of and in the same. Rev. St. 1845, p. 103, §3. The clear and positive language of the stat- ute, aided by the first section of the same act, unmistakably determines the question. The person having the use shall be adjudged to be in lawful seizin, estate and possession. No lan- guage could more aptly stamp the character of the title. Livery of seizin is abolished by the first sec- tion of the conveyance act, and the title is there- by absolutely vested in the donee, grantee, bar- gainee, etc., independently of the statute of uses. Hence, under this statute, a deed in the form of a bargain and sale must be regarded as having the force and effect of a feoffment; and under the statute of uses, a feoffment to A., for the use of or in trust for B., would pass the legal title to B. In a deed purely of bargain and sale, independently of the first sectiou of the conveyance act, the rule would be different, and the title would vest in the bargainee. Without the first section, the legal title would be in the trustee, in this case; but as the trust was a passive one, the deed operated as a feoffment would at common law, and vested the legal title in the cestuis que trust, by virtue of the statute of uses. Thus the statute executes itself. It conveys the possession to the use, and transfers the use to the possession; and by force of the statute the cestuis que trust had the lawful seizin, estate and possession. The three things necessary to bring this es- tate within the operation of the statute did con- cur. There was a person seized to a use; a cestui que use; and a use in esse. The use was then executed, and the statute operated. There was nothing in the deed to prevent the execution of the use. There was nothing to be done by the trustee to make it necessary that he should have the legal estate. There was to be no payment of rents and profits to another, or debts, or taxes. The statute operated in- stantly and vested the legal estate in the cestuis que trustent. All the authorities sustain this view. Blaokstone says that previous to the enact- ment of twenty-seventh Henry VIII. abundance of statutes had been provided which tended to consider the cestui que use as the real owner, and that this idea was carried into full effect by the twenty-seventh Henry VIII., called, in conveyances and pleadings, the "Statute for Transferring Uses into Possession"; that the statute annihilated the intervening estate of the feoffee, and changed the interest of the cestui que use into a legal instead of an equita- ble ownership; and that the legal estate never vests in the feoffee for a moment, but is instan- taneously transferred to the cestui que use, as soon as the use is declared. Bl. Comm. bk. 2, pp. 332, 333. Cruise, in his Digest of the Law of Real Prop- erty (1 Greenl. Ed., top page 313, § 34), says when the three circumstances concur, necessary to the execution of a use, "the possession and legal estate of the lands out of which the use was created are immediately taken from the feoffee to uses, and transferred, by the mere force of the statute, to the cestui que use. And the seizin and possession thus transferred is not a seizin and possession in law only, but are actual seizin and possession in fact — not a mere title to enter upon the land, but an actual estate." See, also, Smith, Real & Pers. Prop. 155; 1 Land Uses, 119; 2 Washb. Real Prop. (1st Ed.) 120; 4 Kent, Comm. 288 et seq.; Webster v. Cooper, 14 How. 488; Barker v. Keat, 2 Mod. 250. We are of opinion that the legal estate was in the cestui que trust, and that the rejected deed was admissible. The cases referred to in this court are not in conflict with our conclusion. The judgment is reversed and the cause re- manded. Judgment reversed. USE UPON A USE. 163 JACKSON ex dem. WHITE v. GARY. (16 Johns. 302.) Supreme Court of New York. May, 1819. *rhis was an action of ejectment brought to recover an undivided eighth part of about six thousand acres of land in the county of Otsego. The cause was tried before Mr. J. Piatt, at the Otsego circuit, in June, 1818. The premises in question were part of a pat- ent granted to George Groghan, and ninoty- nine others, for lOO.OUO acres of land. The oth- er proprietors released to Croghan, who, by deed dated March 2, 1770, conveyed the prem- ises to Augustine Prevost; and Augustine Pre- vost and wife, by deed dated June 29, 1771, conveyed the same to Cornelius P. Low, who died about the year 1791, leaving the defend- ant his only child and heir at law. The plaintiff founded his claim upon a deed dated the 20th of October, 1700, from Helena Kip, widow, and sole devisee of Henry Kip, de- ceased, and Henry H. Kip, to Richard Cary the elder, and the defendant Ann, his wife. This deed was expressed to be given for the consideration Of £425, and granted to the par- ties of the second part, (being in their posses- sion by virtue of a bargain and sale bearing date the day before, and by force of the statute, etc.,) a tract of 6,060 acres formerly conveyed by G. Croghan to A. Prevost, and lately con- veyed by the sheriff of Montgomery to Henry Kip, deceased, and Henry H. Kip, to have and to hold the same unto the said parties of the second part, their heirs and assigns, to the only proper use and behoof of the said parties of the .second part, their heirs and assigns: "In trust, nevertheless, to and for the only proper use of the heirs of him, the said Richard Cary, party hereto, on the body of her the said Ann, the wife of the said Richard Cary, for ever, wheth- ev the same are already begotten or to be be- gotten; provided always, and this trust is up- on this condition, nevertheless, that it shall and may be lawful to and for the said Richard Cary and Ann Cary to grant, bargain, sell, alien, re- lease, and convey unto Edward Hurtin, of Ston- ington, in Connecticut, his heirs and assigns, a farm containing 300 acres of land, &c., and also to let out in leases, renewable from time to time, or to grant, bargain, sell, alien, release, ^ind convey in fee simple, by mortgage, or oth- erwise, to any person or persons, a quantity of the above released premises, not exceeding 3,000 acres of land, including the aforesaid and de- scribed farm of 300 acres of land, and out of such sale or sales to pay and retain to their own use the sum of £425 lawful money afore- said, the consideration money above mentioned, paid by them out of their own proper money, and the interest thereof, together with all costs and charges, as may arise or happen, by reason or means of such sale or sales; and the over- plus money to have and to hold in trust, to and for the use of their heirs, as before limited and expressed." Richard Cary, the grantee, came on the prem- ises as early as the year 1790 or 1791, and with- in one or two years afterwards, removed his family there, and continued to occupy the prem- ises until his death, which happened ten or twelve years before the trial, and the defendant has ever since remained in possession. Cary the elder, the grantee in the last mentioned deed, left Richard Cary, the younger, and seven other children; and Richard Cary, the younger, by deed dated the 11th of April, 1809, con- veyed to the plaintiff's lessor and one Seelye, ali his right and interest, being one eighth part of the premises in question. In May, 1810, Seelye released all his interest to the lessor of the plaintiff. A witness testified, that both before and after the deed from R. Cary, the younger, he had many conversations with the defendant in rela- tion to the interest, and the interest of her chil- dren in the premises, and in relation to the ti- tle; that in all these conversations the defend- ant never pretended that she had any other in- terest or title than what was given by the deed from Helena and Henry H. Kip; and that, by the legal construction of that deed, she sup- posed that she had a life estate in the premises and nothing more. The witness stated, that the reason of his inquiring into the title to the premises was, that he had been engaged in ne- gotiating a purchase of some of the rights of the children of R. Cary the elder, in the prop- erty; that his conversations with the defendant were had in reference to the contemplated pur- chase, and that in all these conversations the defendant admitted the right of the children to sell, when of age, subject to the life estate, which she claimed under the deed from the Kips. • A verdict was found for the plaintiff, subject to the opinion of the court, on a case which was submitted to the court without argument. SPENCER, C. J. The first objection to the deed from the Kips is, that it is a deed of bar- gain and sale, and that upon such a deed a use cannot be limited to any other person than the bargainee. This court adopted and recog- nized that principle, in Jackson v. Myers, 3 Johns. 396. Sanders, in his Treatise on Uses and Trusts, gives this question a very full dis- cussion. He says (page 315): "That the na- ture of the estate since the statute is the same as it was before; that the bargainee is still but a cestui que use, and though he has a legal, in- stead of a fiduciary estate, since the statute, yet, that legal estate is made such by force of the statute of uses, and not according to the rules of the common law. Upon this principle, it has been held, and is now established, that no use can be limited to arise out of the estate of the bargainee to a third person, for that would be to limit a use to arise upon a use. Therefore, if A. bargains and sells in fee to C, to the use of A., (the bargainor.) or to any other person, for life, or in fee, this limitation to the use is void. But though this declaration of the use is void as a use, yet it has been a question, whether it would not be supported as a trust, in chancery." And he apprehends it would be sup- 164 ESTATES IN EEAL PROPERTY. ported in that court. Shepherd, in his Touch - etone (505-507), holds the same doctrine. He observes, that if one seised of land in fee, bar- gain and sell it, or make a lease of it, to an- other in trust, or for the benefit of a third per- son, this is but a chancery trust, in this third person, as was clearly held in 8 Car. B. R.; and he proceeds to show that a fine, feoffment, or recovery, may be had of land, to the use and intent, that either the parties thereto, or others, fihall have it for any time or estate. Cruise (ti- tle 12, c. 2, §§ 11, 12, 24) confirms the positions of Shepherd and Sanders; and, indeed, there is no case to the contrary. This doctrine re- ceives full and complete confirmation from the observations of Lord Hardwicke in Hopkins v. Hopkins, 1 Atk. 591. The legal estate, therefore, was in Gary and wife, under the deed from the Kips; and it is the settled doctrine of this court, that we look only to the legal estate in an action of eject- ment, disregarding the equitable interest. 8 Johns. 488, and the cases there cited. Mrs. Cary having survived her husband, and the estate granted to them being neither in joint-tenancy nor tenancy in common, and so not affected by the statute, she, as survivor, takes the whole legal estate. This point was decided at the last term, in Jackson v. Stevens, 16 Johns. 110. Independently of these considerations, the case shows that the defendant deduced a legal title to himself, as the heir of Cornelius P. Low,, who, it was proved, acquired a complete title to the premises under the original patentee;, and, most certainly, she was not concluded "by the deed from the Kips, from asserting her ti- tle. Without stopping, therefore, to inquire whether, under any circumstances, the lessor of the plaintiff could avail himself of that deed, as ■ an estoppel, which I am clearly of opinion he could not, the defendant never could be estopi^ed by it, as she was a feme covert when it waa given. The evidence of declarations made by the de- fendant avail nothing, for although parol dec- larations of tenancy have been received, with certain qualifications, parol proof has never yet been admitted to destroy or take away a title. To allow parol evidence to have that effect, would be introducing a new and most danger- ous species of evidence. The statute to pre- vent frauds and perjuries, which has been con- sidered the Magna Charta of real property, avoids all estates created by parol, and all dec- larations of trust, excepting resulting trusts, re- garding any lands, tenements, or hereditaments. Yet, in defiance of this statute, we are asked to- devest the defendant of what appears to be a complete title to the premises, by her parol dec- larations. This cannot be listened to. Judgment for the defendant. EXPRESS TRUST. 165 EIPPER et al. v. BEXXER. (71 N. W. 511.) Supreme Court of Michigan. May 25, 1897. Error to circuit court, Calhoun county; Clem- ent Smith, Judge. Claim by Maiy Eipper and Julius Nagel against the estate of Chris Fred Vogel, which was allowed by the proliate judge, acting as commissioner, and INIaiy E. Benner, adminis- I tratrix of said estate, apijealed to the circuit ! court. There was a judgment disallowing the [ claim, and claimants bring error. Reversed. Herbert E. Winsor, for appellants. John E. Foley, for appellee. HOOKER, J. In a proceeding before the probate judge of Calhoun county, acting as commissioner, the claim of the claimants was allowed. Upon appeal the circuit judge re- versed the case, and disallowed the claim. His finding states the facts, and is given in full: "(1) Claimants are nepliew and niece of Mary Vogel, who was the wife of Chris Fred Vogel, deceased. Julius was bom in May, 18G6, and his sister, Mary, is about two years younger. They are the children of a deceased brother of Mary Vogel, and were left orphans in the state of Mississippi, but at what time is not disclosed by the proof, but at a time prior to their coming into the family of Chris Fred Vogel. Maiy Vogel learned of the death of her sister, and that these children were orphans, and took steps to find them, and bring them North, into her family, and did find them, and they lived in the family of her- self and husband about six (G) years before her death. "(2) Claimants have no property, and Mr. and Mrs. Vogel were at some expense in find- ing them and removing them to their home. "(3) They were cared for and looked after by the Vogels as members of the family from the time they came into the family, worked out part of the time, and attended school, but not to any great extent. "(4) At the time of the marriage of Mr. and Mrs. Vogel he was a widower with one child, who is now living, and in whose interest this claim is contested. Mrs. Vogel was a widow without children, and died childless. "(5) At the time of the marriage, Mrs. Vo- gel had several hundred dollars of property in her own right, consisting of moneys out at interest, and houses and lots, in Coldwater, Michigan, where she lived. Mr. Vogel had some property, and they accumulated some by their labor, and in the management of what they had. They used their property for the joint interest of both in the cai-e of the family, but investments were made in the name of Mr. Vogel. "(6) Mrs. Vogel died April 21, 1887, and Gottleib Kast was appointed her administra- tor, and proceeded to settle up her estate. It was appraised at the sum of one thousand eight hundred and eighteen ($1,818) dollars, and consisted principally of real estate owned by her at the time of her marriage. The es- tate was duly closed in probate court, and dis- tributed to her legal heirs, under an order of distribution made by Hon. Geo. IngersoU, Judge of Probate. "(7) The heirs at law of Mary Vogel were these claimants, children of a deceased broth- er, Michael Xagel, a brother, a brother in Ger- many, a brother in Ohio, and eight or nine children, who were the children of a deceased sister in Germany. "(8) A day or two after her death her brotli- er, Michael Nagel, talked with Mr. Vogel about the property of his wife and the rela- tions pertaining to the same as between Mr. and Mrs. Vogel. It is claimed that this talk was in the interest of claimants. Claimants knew nothing of the talk, and had no part in it. Michael was not their legally appointed guardian, nor was he in any way authorized by them, or by any one, to make any arrange- ment regarding their interest in the estate of Mrs. Vogel, but acted entirely of his own mo- tives. "(9) In pursuance of this talk, and before Michael went home, the parties went to the probate court, and Judge IngersoU, the pro- bate judge of Calhoun county, prepared a pa- per, which Mr. Vogel signed, and which was in words and figures as follows: " 'Exhibit A. Memoranda of unsettled mat- ters between Chris Fred Vogel and the estate of Mary M. Vogel, his wife, as follows: Said Chris Fred Vogel has heretofore received from said Mary M. Vogel the following sums of money, to wit: One sum of three hundred dollars . . . ($ 300.00) One sum of three hundred and fifty dollars ( 350.00) One sum of three hundred and seven- ty-five ( 375.00) And one sum of fourteen hundred dol- lars ( 1,400.00) Amounting in all to tn-enty-four hun- dred and twenty-five dollars ($2,425.00) —And out of which he paid at the request of said Mary M. Vogel one hundred dollars for the benefit of Gottleib Grimmer, and wliich leaves a balance of twenty-three hundred and twenty-five doUars ($2,325.00), and which amount I agree, in pursuance of my under- standing with my said wife, to bequeath by my will to Julius Nagel and Maggie Nagel, minors, now members of the family of Chris Fred Vogel. Dated, MarshaU, April 2Tth, 1887. Chris Fred Vogel. In presence of George IngersoU.' "This paper was left with Judge IngersoU, and remained with him till after the death of Ml'. Vogel. "(10) January 31, 1889, Chris Fred Vogel, on petition of Julius Nagel, and while Mr. Kast was acting as administrator of Mrs. Vo- gel's estate, was cited into probate court to tes- tify as to the property he had belonging to his deceased wife's estate. This examination was 166 ESTATES IN REAL PEOPEETY. in writing before the judge of probate, and was conducted by Hon. John C. Patterson, who represented Mr. Nagel. In this exam- inatiou he denied owing his wife anything. He admitted he had considerable money, and in fact the amounts set forth in the memo- randum, out claimed it had been paid out in various ways at her request. He also denied to Mr. Kast, while he was the administrator of Mrs. Vogel's estate, any liability to her es- tate or to claimants. "(11) In December, 1894, Mr. Vogel made a will, in which Julius and Mary, these claim- ants, were remembered substantially as was set forth they should be in the memorandum made by Judge Ingersoll. The contents of this will rest somewhat in memory and hear- say, and, while not in the exact terms of the memorandum, were as favorable to them as the terms of it would have been. "(12) This will was destroyed some time after its execution, and was not in existence at the death of Mr. Vogel." "(13) Mr. Vogel died July 13, 1895, without a will, leaving as his only heir his daughter, Elizabeth. Administration was granted to his daughter. His property was appraised at six thousand five hundred and ninety-seven dol- lars ($6,597.00), "(14) Claimants file a claim against his estate which was the memorandum set forth in the ninth finding of fact herein, and to which was attached the following: 'Marshall, Mich., Nov. 13, 1895. Estate of Chris Fred Vogel, Dr., to Julius Nagel and Mary Nagel Eipper, To the above claim, $2,425.00. In- terest to date if allowed.' "Law. "Claimants have no legal claim against the estate of Chris Fred Vogel, and cannot re- cover. It should be certified back to the pro- bate court for Calhoun county that this claim is disallowed, with costs to be taxed. "Dated August 15th, 1896, "Clement Smith, Circuit Judge.** The only question that seems to be raised by the brief of appellants goes to the merits, — can the order be sustained upon the finding of fact? The finding conclusively shows that Chris Fred Vogel unqualifiedly admitted in a most solemn manner that he had money be- longing to his wife to the amount of $2,425, and that he had an understanding with his wife, before her death, that he was to be- queath it to the claimants, who were her nephew and niece. Not only does it api>ear that he admitted that he made this promise, but that he made the writing in which the ad- mission appears as a means of avoiding an accounting for this property belonging to his wife at a time when her brother, one of her heirs, required it, as a condition that the heirs should not compel such accounting; and it was shown that he made a* will substantially in accordance with his admitted promise, Avhich was destroyed some time after its execution, and before his death. The circuit judge was of the opinion that the admission of an "un- derstanding" with his wife was not the ad- mission of a promise, and that, if it can be said to amount to a promise, it was not based upon a consideration, because neither Mr. nor Mrs. Vogel was under any obligation to the claim- ants which would amount to a valid consid- eration. It is clear that the judge found that Vogel admitted that he had the sum claimed of his wife's property, and that he had prom- ised her to leave it to these children at his death. We are of the opinion that the facts found show that Vogel held this money in trust for these children by arrangement with his wife, and after his death it was the duty of the administrator to pay it over to them, upon allowance by the probate court. People V, Wayne Circuit Court, 11 Mich. 404; Wheel- er V. Arnold, 30 Mich. 304; Nester v. Ross' Estate, 98 Mich. 200, 57 N. W. 122; Frank V. Morley's Estate (Mich.) 64 N. W. 577. This trust, though it be said that it rested in parol, was admitted in writing, which was suflicient to satisfy the statute of frauds. Pat- ton V. Chamberlain, 44 Mich. 5, 5 N. W. 1037. But it would seem that the statute of frauds has no application, inasmuch as the trust fund was pei'sonalty, Bostwick v. MahafCy, 48 Mich. 342, 12 N. W. 192; Calder v. Moran, 49 Mich. 14, 12 N. W. 892; Chadwick v, Chad- wick, 59 Mich. 87, 26 N, W. 288; Bowker v. Johnson, 17 Mich. 42; Penny v, Croul, 76 Mich. 471, 43 N. W, 649. The order of the circuit judge is reversed, and that of the pro- bate court afl3rmed, with costs of both courts to the claimants against the estate. It will be so certified to the circuit and probate coui'ts. The other justices concurred. EXPRESS TRUST. 167 HAMILTON V. HALL'S ESTATE. (69 N. W. 484.) Supreme Court of Michigan. Dec. 24, 1896. Error to circuit court, Waj-ne county; George S. Hosmer, Judge. Claim by Sarah M. Hamilton against the estate of Salina J. Hall, deceased. Judgment for defendant, and claimant brings error. Affirmed. Bowen, Douglas & Whiting, for appellant. Conely & Taylor, for appellee. LONG, C. J. The claimant presented to the commissioners on claims in the Wayne circuit court a claim against the estate of the deceased for the sum of $1,000 and in- terest thereon at the rate of 7 per cent, per annum from May 13, 18!X>, less certain cred- its. This claim was disallowed by the com- missioners, and an appeal was taken to the circuit court for Wayne county, where the court directed verdict in favor of the estate. It appears that Reuben H. Hall died tes- tate In the city of Detroit, May 13, 1890, leav- ing all his property to his wife, Salina J. Hall, against whose estate the claim in con- troversy is presented. He had no children. Before his death he told his wife to give to bis sister, the claimant here, the sum of $1,- 000. It is contended by the claimant that, after the death of Reuben H. Hall, his wid- ow said she would follow her husband's wish- es, and give the claimant $1,000 out of the estate; that thereafter Salina J. Hall treat- ed the $1,000 as belonging to the claimant; and that thereby a trust was created in favor of claimant, which can now be enforced against said estate. In order to determine that question. It is necessary that some of the testimony given upon the trial be set forth. Mr. Houston testified that Salina J. Hall, in her lifetime, said to him that her husband told her, before his death, to give his sister, Mrs. Hamilton, $1,000 out of his estate. Witness stated: That he had loan- ed money for Mrs. Hall, and collected inter- est on it when due. That deceased had con- siderable property, acquiring the greater por- tion of it from her husband. That at cer- tain times she told him to pay claimant mon- ey as interest on $1,000. That -she said she would pay interest on the money while she kept it, and that, at different times, she di- rected him to pay claimant money for her. That in August, 1890, he paid claimant, for deceased. $50; in November, 1891, $25; Sep- tember, 1891, $50; June, 1892, $25; August, 1892, $20; May, 1893, $50; July 21, 1893, $25; July, 1894, $10; July, 1894, $40; and December, 1894, $25. That he made these payments out of interest on moneys that he had collected upon loans made for the de- ceased, and the payments were made with tbe knowledge of the deceased and by her instructions. The witness was asked to state whether Mrs. Hall ever said anything in re- gard to why she did not give the whole $1,- 000 to claimant immediately, and stated: "She said she wanted Mrs. Hamilton to have this money for her own benefit. She thought her husljand owed on his farm, and, if she gave her the $1,000, he would turn the mon- ey in in payment of his farm." Counsel then put in evidence a letter addressed to Mrs. Hamilton from Mrs. Hall, under date of De- cember 16, 1894, as follows: "Dear Sister: Please explain so I can send my dues first January, whatever they are. I send you check for $25, and I hope it will reach you in good season and all right. Would have sent it before, but was so busy for several days before auntie went away I didn't do anything only what I had to. Wish j'ou would send me a statement of what you have had, so I can see if it tallies with mine." Mary Brin- ing was called as a witness, and stated that deceased told her she was to pay Mrs. Ham- ilton $1,000; that she didn't have the mon- ey then, but would pay her just as soon as she could make arrangements and get it. Witness said: "I think she was paying inter- est, and that she said she would pay her that money just as soon as she could get around to it." Mabel Loomis also testified as fol- lows: "She said Mr. Hall told her to give Mrs. Hamilton $1,000, and that she would give it to her as soon as she could, and would give her the interest on it until she did give it to her. She said that was Mr. Hall's wish." John W. O'Keefe testified: "Well, she said there was no particular time that she was obliged to give it to her, only she was going to give it to her just as she saw fit,— saw that she could; that Mrs. Hamilton wanted her to give it to her all at once, but she would not do that, but she wanted to give it to her in small payments along, so that Mrs. Hamilton would use it for her own personal use. * * * She said she was going to pay her interest on it." Mary K. West testified about a talk she had with Mrs. Hall, in which she stated: "He wanted her to give Mrs. Hamilton a certain sum of money. She did not say to me how much. She says: 'I am going to give Sade $1,000, but I am not going to give it to her right away, because Mr. Hall didn't want me to cramp myself; but I shall pay her interest until I get around to pay it to her.' " The witness further testified to certain goods that were bought by Mrs. Hall and sent to Mrs. Hamilton, and said that Mrs. Hall said to her: "This is to be applied on interest." The witness, speaking of another occasion, ' when she had a conversation with the de- ceased, said that Mrs. Hall told her that she had $1,000 coming to her, and she believed, I when she got it, she would give Sade $500 of it for her next birthday. The witness, con- tinuing, says: "And she says: 'What do you think about it?" I says: 'Well, if you have got to pay, I would get it off my hands, and be done with it. You are paying interest on 168 ESTATES IN KEAL PROPERTY. It now. Why not have It through with?' She saj's: 'I believe I will, and, when he pays me the first of May, I will give her $500 of it.' But she died before then. That was the January before she died." This is sub- stantially all of the testimony relating to the subject of the fund. The only question relating to this branch of the case is whether the claim can be sus- tained as a declaration of trust. It is claimed by defendant that there was no consideration for the alleged declaration of trust; that, if made, it was purely voluntary; and that, un- der the facts shown, if a trust exists, it is merely executory. It is contended upon the part of the claimant that the evidence in the case is clear and explicit that Salina J. Hall, in her lifetime, declared herself voluntarily, by parol, to be trustee for the sum of $1,000 received by her from her husband for the use and benefit of Sarah M. Hamilton, and that she ti-eated this sum as belonging to the claim- ant, and paid her interest upon it as claim- ant's money, and that by so doing she passed the title to it to Sarah M. Hamilton, retaining in herself only the legal title and the right to conti'ol the fund as tiustee during her lifetime for the use and benefit of claimant; that is, that the trust was an executed one, and is not purely executory. The distinction between ex- ecuted and executory trusts is plainly pointed out in Gaylord v. City of Lafayette, 115 Ind. 42.3, 17 N. E. S99, where it is said: "A trust may be said to be executed when it has been perfectly and explicitly declared in a writing, duly signed, in which the terms and conditions upon which the legal title to the trust estate has been conveyed or is held, and the final in- tention of the creator of the trust in respect thereto, appear with such certainty that noth- ing remains to be done except that the trus- tee, without any further act or appointment from the settlor, carry into effect the inten- tion of the donor as declared. In such a case, even though there was no valuable considera- tion upon which the trust was originally de- clared, a court of chancery will enforce it in favor of one whose relation to the donor was such as to show a good or meritorious consid- eration. Where, however, property has been conveyed upon a trust the precise nature of which is imperfectly declared, or where the donor reserves the right to define or appoint the trust estate more particularly, although it may be apparent that the creator of the trust has in a general way manifested his purpose ultimately, at a time and in a manner there- after to be determined, either by himself or by the trustee, to bestow the property upon a person named, the trust is incomplete and ex- ecutory, and not within the jurisdiction of a court of chancery; the rule being that courts of equity will not aid a volunteer to carry in- to effect an imperfect gift or an executory trust.'' It is not contended by counsel for the estate that in this case a written declaration of the trust was necessary, the fund being personal property. Such a trust may be creat- ed by parol. Crissman v. Crissman, 2.3 Mich. 216; Bostwick v. MahafCy, 48 Mich. 342, 12 N. W. 192. But it is contended that, in order to establish a parol trust, the evidence must be very clear and satisfactory, and find some support in the surrounding circumstances and in the subsequent conduct of the parties. This rule is sustained by the case above cited, as well as in Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517; Bailey v. Irwin, 72 Ala. 505; Perry, Trusts, §§ 77, 86. To create a trust, Avhere the donor retains the property, the acts or words relied upon must be unequivocal. Young V. Young, 80 N. Y. 422; 27 Am. & Eng. Enc. Law, p. 56, and cases there cited. And this rule applies with peculiar force where it is claimed that the donor constituted himself trustee. Williams v. Yager, 91 Ky. 282, 15 S. W. 660. In Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, which was cited witb approval by this court in O'NeU v. Green- wood, 64 N. W. 511, it was held that, "td constitute a trust, there must be either an ex plicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created." The mere declarations of an intention or purpose to create a trust which is not carried out are of no value, and a mere agreement or statement of an intent to make a gift in the future is not suflacient. It must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trast itself. The rule in re- lation to the creation of trusts is well stated in Ray v. Simmons, 11 R. I. 266, as follows: "A person need use no particular form of words to create a trust or to make himself a trustee. It is enough if, having the property, he conveys it to another in ti'ust, or (the property being personal) if he unequivocally declares, either orally or in writing, that he holds it in prsRsenti in trust or as a trustee for another." Many cases are cited in support of this proposition. The general rule is laid down in Perry, Trusts, § 86, as follows: "When a person ^i juris, orally or in writ- ing, explicitly or Impliedly declares that he holds personal property in prscseuti for anoth- er, he thereby constitutes himself an express trustee." From an examination of the testimony in this case, it is evident that no trust was ever created, and the most that can be said of it is that it was the intent of Mrs. Hall at some future time to give to Mrs. Hamilton the sum of $1,000. But counsel contends that the pay- ment of interest, and the promise to pay in- terest in the future, evidences the setting apart of the fund as the money of Mrs. Ham- ilton. We think not. Mr. O'Keefe testified, upon that point, that Mrs. Hall said that there was no particular time she was obliged to give it to Mrs. Hamilton, only she was going to give it to her as she saw fit,— saw that she could; that Mrs. Hamilton wanted her to giv^ it to her all at once, but she would not do EXPRESS TKUST. 169 that; she wanted to give it to her in small ^amounts along, so that Mrs. Hamilton would use it for her own personal use. It appears, therefore, very plain that there was no fund set apart, and the payments made, whether of principal or interest, were only to help Mrs. Hamilton as her needs demanded. It is evident tliat there was an intent on the part of Mrs. Hall to make a gift at some indefinite time in the future, but she set apart no fund for that purpose. It is very different from the case of O'Neil v. Greenwood (Mich.) 64 N. W. 511. There Mr. Willey intended to set apart, and did set apart, the notes and cer- tificates as the property of Lavolette O'Neil and Calista Warner, though he retained pos- session of them and appropriated the income. At his death he left the fund intact as evi- dence of the execution of the trust. The tes- timony here falls far short of establishing an executed trust, one which can be enforced. Under this evidence we think it could hardly be contended that Mrs. Hamilton could have enforced the agreement against Mrs, Hall during her lifetime, and the court was not in error in holding that no trust was ever creat- ed, and very properly directed verdict and judgment iu favor of defendant. That judg- ment must be affirmed. The other justices concuiTed. 170 ESTATES IN REAL PROPERTY. CHAPMAN y. CHAPMAN et al. (65 N. W. 2] 5.) Supreme Court of Michigan. Dec. 10, 1895. Appeal from circuit court, Wayne county, in chancery; George S. Hosmer, Judge. Bill by Albert J. Chapman against Grace A. Chapman, impleaded with another, to have a life estate declared in certain land. A de- murrer to the bill was sustained, and com- plainant appeals. Affirmed. John Galloway and James H. Pound, for ap- pellant. Ed. E. Kane, for appellee Grace A. Chapman. LONG, J. The bill in this case was filed to have a life estate declared in complainant to lot 6, block 14, Crane & Wesson's section of Forsyth's farm, in the city of Detroit. The bill, in substance, sets out that, in Au- gust, 1879, complainant boiTowed from one Samuel F. Hopkins the sum of $1,000 for the purpose of purchasing a ' home for himself and family; that the same was borrowed up- on the imderstanding with Hopkins that it was to be used for such purpose; that com- plainant's wife, at that time, was informed of the purpose for which it was borrowed; and that the home so purchased was to be used and occupied by complainant and wife, as such, so long as each should live. The title was taken in complainant's wife. They had' two children at the time of the purchase. A mortgage was executed to Hopkins to secure the payment of the moneys. The parties en- tered into possession, and continued to reside there together until the spring of 1891, when complainant's wife and daughters left the home, and went to reside elsewhere, the com- plainant continuing to occupy the premises and making improvements thereon. In No- vember following, complainant's wife died, leaving a last will and testament devising the property to her two daughters. The bill was demurred to in the court below and the de- murrer sustained. The claim here is that the property was held in trust by complainant's wife for him and his family. It does not appear, by the bill, that any writing ever existed between the complainant and Hopkins in reference to these lands, or between complainant and his wife. The mon- eys were borrowed from Hopkins to make the purchase, and the title taken directly to the R-ife. and all the claim which the bill sets up to establish the life estate in complainant is; shown to rest in the declarations of complain- ant to Hopkins, and the claimed understand- ing between complainant and his wife, that the premises should be kept as a home for complainant and his wife during each of their- lives. Section 6179, How. Ann. St., provides: "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 here- after be created, granted, assigned, suiTen- dered or declared unless by act or operation of law or by deed or conveyance in writing subscribed by the party creating, gi-anting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized in writing." We think there is nothing set up in the bill which would bring the case out of this statute. A resulting trust cannot be created, except by act or operation of law, or by one of the other methods pointed out by this section of the statute. All that can be said is that, under the allegations in the bill, the complainant's wife knew how the lands were purchased, and agreed with her husband that it should be a home for the fam- ily and for themselves so long as they lived. The title vested absolutely in the wife, and under the statute she could devise or convey it at will, without interference of her hus- band. In Shaffer v. Huntington, 53 Mich. ^15, 19 N. W. 11, Mr. Justice Champlin, speaking of this statute, said: "Since the passage of the foregoing enactments (section 0179, How. Ann. St) in 1846, no express tiiist has ever been allowed to be ingrafted by parol conveyance, but has universaUy been held to be void." One of the daughters con- sented to release to her father, but the other refused to do so. The circumstances stated in the bill show that the situation of the com- plainant is peculiarly unfortunate. He has spent many years in this homestead, expend- ing large sums of money in beautifying and improving it, and his two daughters, defend- ants in this case, now claim to hold the legal title and right to immediate possession; but, whatever the hardship may be, it is not for the courts to set aside the statute, or be guided by any other rule than that which the statute so plainly lays down. The decree of the court below, sustaining the demurrer, must be affirmed. The other justices con- curred. EXPRESS TItUST. 171 WHITE et al. v. RICE et al. (70 N. W. 1024.) Supreme Court of Micliig^n. April 27, 1897. Appeal from circuit court, Cass county, in chancery; Orville W. Coolidge, Judge. Bill by Nathaniel White, Henry Ferrel, and E. D. Bronner, as tinistees and agents of the Methodist Episcopal Church, again.st Samuel Rice, the Pleasant Valley Congregation of the Brethren Church, and others, for an injunc- tion. From an order oven-uling a demuirer to the bill, the defendants appeal. Altirmeil. Howell & Carr and L. A. Tabor, for appel- lants. Harsen D. Smith, for appellees. LONG, C. J. This bill is filed for the pur- pose of obtaining an injunction restraining the defendants from interfering in any way with the Methodist Episcopal Church Society and the complainants in using a certain church edifice in which tO hold religious serv- ices, and to prevent the defendants from in- terfering with the complainants in opening and entering said church for religious sei-v- ices. Upon the fiJing of the bill an injunction was issued and sorved upon the defendants in accordance with the prayer of the bill. The defendant the Pleasant Valley Congregation of the Brethren. Church filed a general demur- rer to th,e bill, setting out that the bill did not state a cause v/hich entitled the complain- ants to any relief whatever. The other de- fer dan is answered the bill. The cause came on to be heard on the demurrer. The court overruled the demurrer, without costs, and gave the defendants 30 days to answer. The appeal to this court is from the order over- ruling the demurrer. It appears ty the bill that the Pleasant Valley Congregation of the Brethren Church is a corporation organized and existing un- der chapter 170, How. Ann. St.; that in 1890 it owned a church building, which burned during that year; that subsequently negotia- tions were entered into between the mem- bers of that corporation and the members of the Methodist Episcopal Church Society, called the "Bethel Class, Vandalia Circuit," and other persons in the neighborhood, to raise a common fund with which to rebuild such church edifice, and which it was agreed should be used, not only by the Pleasant Val- ley Congregation, but by other denominations in common with them,— that is, the Baptist, Disciple, Methoy the terms of Moore's said conveyance to Moiuoe from claiming or asserting that, as to the one-sixth interest in said land conveyed by the said Nat. D. Moore to the said John Monroe, the said Helen Moore has any title or interest therein as against said com|.la n- ants; and they further charge that as to said one-sixth interest the title is in them by vir- tue of the premist-s; that at the time of said conveyance by Nat. D. Moore to John Mon- roe said Moore was unmarried, and that said Helen Moore gave nothing for either or any of said conveyances nor for said interest in said land; and that she took the same with full notice and knowledge of complainants' rights, obtained as aforesaid, by deed from said Nat. D. Moore to said John Monroe." The original bill charged also that a convey- ance was made by McDonald and McKay to Moore, and fraudulently suppressed before the conveyance to said Helen. We think the allegations of the bill, as amended, are sufficient to support the decree. McDonald and McKay held in trust for Moore; that is, upon the trust created by their obligation to convey to him on request. They not only did not deny the trust, but conveyed on Moore's request to his nominee, and fraud is charged against Moore and his wife in pro- curing the conveyance to the latter. The prayer of the billVas "that the said Helen Moore be compelled by the proper decree of this court to execute and deliver a good and sutticient warranty deed or deeds of tlie un- divided one-sixth part of said premises to these complainants, in the proportions to which they are respectively entitled, as sole heirs of said Monroe;" and as tliere is enough in the bill as amended to warrant relief. CONSTRUCTIVE TRUST. 183 and as the defendants could not have been taken by surprise, we do not think tlie decree sliouid be reversed on tlie ground that tlie allegata and the probata do not sufficiently agree to justify it. It is true, there is no offer to pay tlie balance of the purchase money, but the case shows that a tender would have been but an empty show, and as the court had it in its power to require pay- ment of the $240 note, thus completing per- formance by Monroe, and as it did this by its dfcree, the allegatinn would have been merel}' formal and became immaterial. The decree of the circuit court is affirmed. 184 ESTATES IN REAL PROPERTY. RICE V. RICE. (65 N. W. 103.) Supreme Court of Michigan. Dec. 3, 1895. Appeal from circuit court, Ionia county, in chancery; Franlj D. M. Davis, Judge. Bill by Julia A. Rice, administratrix of the estate of Wallace Rice, against Alonzo Rice. There was a decree for plaintiff, and defend- ant appeals. Affirmed. Clute & Clute, for appellant R. A. Haw- ley, for appellee. MONTGOMERY, J. The bill in this case was filed by the complainant to have the de- fendant declared trustee of the estate of Wallace Rice, deceased, and to require the assignment to the complainant, as adminis- tratrix, of a certain real estate mortgage, de- livered and assigned to defendant by Wal- lace Rice in his lifetime. It appears that, in the spring of 1892, Wallace Rice was a resident of Ionia county, and was worth about $3,-500. He was afflicted with a pul- monary disease and desired to go to Colo- rado in hopes of benefiting his health. His property at this time consisted of the mort- gage in question, which amounted to $2,000, and some unsecured notes and other per- sonal property. It appears that, before go- ing to Colorado, Wallace executed to the de- fendant an assignment of the mortgage, ab- solute in form, and the sole question in this case, as the same appears to us, is whether, by tliis conveyance, it is intended to vest a beneficial interest in the defendant, or whether the transfer was made for greater convenience in dealing with the security, in the interests of Wallace and his estate; and we are all agreed that the record does not leave this question in doubt, if we confine ourselves to the undisputed testimony and to facts testified to by the defendant. It is proper to say that we are convinced that the defendant has at no time contemplated a diversion of the property to his own use, but has had in contemplation the preservation of the proceeds of the mortgage for the two minor children of the deceased, but we are unable to find any trust in favor of the chil- dren. Either the effect of the assignment was to vest in the defendant an indefeasible right, or a trust resulted in favor of Wallace in his lifetime, and a right remained in him which vested in his estate on his decease. It appears by the testimony that Wallace first prepared a power of attorney to collect the mortgage, and gave it to the defendant. Defendant then said to him, "If you die or something happens to you, I could not col- lect it." Wallace then took the mortgage back, leaving the power of attorney, and aft- erwards brought the assignment, saying to the defendant, "You can use it now." It also appears, from the testimony of the defend- ant, given on his examination had in the probate court, that no consideration passed to Wallace upon this transfer, and on said examination he (the defendant) further tes- tified: "I don't think it was a gift to me. I suppose it was placed in my hands for the benefit of the children. Nothing was said about it. I intended to use the mortgage for the benefit of the children." On the trial of the present case the defendant gave the fol- lowing testimony: "Q. In case he (Wallace) had lived, and you had collected this money, you would have sent it to him, wouldn't you? A. If he had lived and got well, I presume I should. Q. Don't you know you would? A. Why, yes." This testimony and statement of defendant show that there was no consideration passing to Wallace; that de- fendant did not understand that the transfer was a gift, but did understand that the bene- ficial interest was still in Wallace. If this be so, that interest, in the absence of an ex- press trust in favor of the children, passed, on Wallace's death, to his estate. There is no evidence of any declaration of trust in favor of the children. The circuit judge granted the relief prayed, and the decree is affirmed, with costs. HOOKER, J., did not sit. The other jus- tices concurred. CREDITORS OF CESTUI QUE TRUST. 18- SrRIXG V. RANDALL et al. (G4 N. W. 10G3.) Supreme Court of Michigan. Nov. 19, 1895. Appeal from circuit court, Kent county, in ■chancery; Allen C. Adsit, Judge. Petition of Houry Spring to the circuit court. From an order overruling demurrer to the petition, Lewis E. Randall and Marie Van Zant Randall appeal. Atttrnied. Frank L. Carpenter, for appellants. Smi- ley, Smith & Stevens, for appellee. LONG, J. This is an appeal from an order ■overruling a demurrer to a petition filed in the Kent circuit court in chancery. It is shown by the petition that in 1880 the will ■of Rosalie M. Smith, deceased, was admitted tx) probate. By its terms the greater part of the large estate passed to Nelson W. North- rup, as trustee, who was to invest, manage, and control the same, and out of the pro- ceeds and income to_ pay the testatrix's niece, Marie Van Zant, an annuity of $500 during her life, and also all the income of the estate after complying with certain mi- nor directions in the will. The income was to be paid quarterly. On the death of ]\Larie Xan Zant, the entire estate was to go to her lawful heirs, or to whosoever she might ap- point by M'ill. Mr. Northrup acted as trus- tee from 1880 to December, 1892, when the ■court made an order accepting his resigna- tion, which was made in consequence of dis- satisfaction between him and ^liss Van Zant, and appointed Lewis E. Randall as his successor, and determined that the amount of money due from Mr. Northrup to his suc- <'essor was $21,820, and specified also the real estate to be conveyed to his successor. Lewis E. Randall accepted the appointment, and filed a bond with the register. The moneys were paid over, and the estate con- veyed to him, and he has continued to fict as trustee since that time. The petitioner, Henry Spring, is" a dry-goods merchant in Grand Rapids. In July, 1888, he began fur- nishing Marie Van Zant with wearing appar- el and other necessities, on credit, and con- tinued so to do until November, 1802; and the petition states: "All said wearing ap- parel and other necessities were furnished the said Marie J. Van Zant at a time when she represented herself to be unable to pay cash therefor by reason of the litigation then pending between herself and the said NelsOn W. Northrup concerning the financial affairs of said estate, and that the said Marie J. Van Zant promised and agreed with your petitioner from time to time to pay for said wearing apparel and other necessities out of the income of said estate as soon as she should receive the same and be able so to do," At divers times after the appointment of the new trustee, Mr. Spring applied to Miss Van Zant for payment of the goods she had obtained from him, but she never paid. In February, 1894, he placed the claim in judgment, and had an execution issued, and the sheriff made diligent efforts to collect, soliciting payment personally from the debt- or, but no payment was made, and the sher- iff subsequently made return that he was unable to find any property. After the ap- pointment of Lewis E. Randall as trustee, he and Marie Van Zant were married; and it is alleged that tliey are combining and confederating to prevent the collection of Mr. Spring's judgment; that the trustee holds $21,0{J0 in money and $10,000 in real estate, the income of which all belongs to his wife, the debt6r, Marie Van Zant Ran- dall, and the income of which is sutiicicnt to enable her to pay the debt; but that she is making no effort to do so, and is purpose- ly withholding the amount; and that her husband, the trustee, is assisting her in so doing. It is alleged that there is no rem- edy at law by which the payment can be en- forced, and that petitioner is entitled to pay- ment out of the income of the estate. The prayer of the petition is: (a) That the trus- tee and beneficiary be cited to appear, etc.* (b) that the ti'ustee be directed to pay the judgment at such time or times and in such manner as by this court shall be directed; (c) that the amount so paid by the trustee be charged against the beneficiary in the account of the trustee; and (d) for general relief. It is contended by the appellant that there is no equity in this petition, in that, by the terms of the will, the testatrix intended to create a fund beyond the control of the ben- eficiary, the income only of which should be used for her personal maintenance and sup- port during life, and not be taken in pay- ment of debts contracted by her or through charges against her; that the property is bequeathed directly to the trustee, giving him title and possession; and that such trus- tee is directed to invest, manage, and con- trol it, and pay the income to the beneficiary during life, but he is not authorized to pay it to her grantors nor assigns. It is also contended that the remedy, if any, could be enforced only by original bill. Section 5575, How. Ann. St., provides: "When a trust is created to receive the rents and profits and no valid direction for accumu- lation is given, the suiijlus of such rents and profits beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created shall be lia- ble in equity to the claims of creditors of such person in the same manner as other personal propert.y which cannot be reached by an exe- cution at law." By the terms of the will by which the trust in this case was created, there is a direction that the surplus shall be paid to the beneficiary. The statute above quoted was taken verbatim from the New York statute; and in Williams v. Thorn, 70 N. Y. 270, and in Tolles V. Wood, 99 N. Y. 616, 1 N. E. 251, the points raised by the appellant here were 186 ESTATES IN EEAL PROPERTY. ruiiy decided, and it was held that, where a judgment debtor is the beneficiary of a trust by which the trustee is i-equlred to receive and pay over to him the income of the trust es- tate, an action may be maintained by the Judgment creditor after the return of an execu- tion unsatisfied, to reach the surplus income beyond what is necessary for the suitable sup- port and maintenance of the beneficiary; that the right of the creditor to maintain such an action exists as well where the trust estate is personal as where it is real property; that the remedy of the creditor is not confined to the surplus which has accrued and accumulated in the hands of the trustee, but that the court may determine what may be a reasonable al- lowance for the beneficiary, and direct the ap- plication of any future surplus to the payment of the judgment until it is fully paid; that the statute exempting from the operation of cred- itors' bills trust funds when the trust has been created by or the trust fund has proceeded from some other than the defendant is not in conflict with the statute providing that the surplus income of the trust estate shall be lia- ble in equity to the claims of creditors; that the two statutes, which are similar to our own sections 6614 and 5575, are to be construed together, and are intended to exempt the prin- cipal fund and the beneficial interest of the beneficiai-j' in the income only to the extent of a fair support out of the trust estate. In Tolles V. Wood, the court held, further, that the creditor of such a beneficiary acquires a lien upon the accrued and unexpended suii^lus income arising from such fund, superior to the claims of general creditors or assignees of the beneficiary, by the commencement of an action in equity to reach and appropriate it to the satisfaction of his judgment. In Nichols v. Levy, 5 Wall. 441, Mr. Justice Swayne, deliv- ering the opinion of the court, said: "It is a settled rule of law that the cestui que trust, whatever it may be, is liable for the payment of its debts. It cannot be so fenced about by- inhibitions and restrictions as to secure to it the inconsistent characteristics , of right and enjoyment to the beneficiary, and immunity from his creditors. A condition precedent that the provision shall not vest until his debts are paid, and a condition subsequent that it shall be divested and forfeited by his insolvency, with a limitation over to any other persons, are valid, and the law will give them full ef- fect. Beyond this, protection from the claims of creditors is not allowed to go." The rule laid down in Perry, Tl-usts, § 815, and in Pom. Eq. Jur. § 989, states that the cestui que trust cannot hold and enjoy his interest entirely free from the claims of creditors, and that, in the absence of special circumstances, the cred- itor can attach the beneficiary's interest in the hands of the trustee. This application is made simply to reach the smaller part of this surplus fund, and we think it sets up equitable grounds for the relief sought. No personal decree is asked against either party, nor is a lien sought to be estab- lished upon any property. The relief asked is a direction to the trustee to pay the claim out of the sm-plus fund, and that is entirely with- in the province of the court having jurisdiction of the trust estate. We think it is proper to present the case by petition rather than by original bill. In Bank v. Byles, 67 Mich. 305, o4 N. W. 702, in disposing of a similar ques- tion, it was said: "There is really no reason why the whole grievance may not as well be heard upon the petition as upon a bill. The facts upon which relief is based and asked and information desired can as well be stated ancl presented in the petition as in a bill. The rights of all the parties can as well be protected in the one as in the other." We think the court below properly oveiTuled the demun-er, and the proceeding will be remanded to the court below, for further action tbere. The other justices concurred. REVERSIOXS. 187 COOK V. HAMMOND. (Fed. Cas. No. 3,159, 4 Mason, 467.) Circuit Court, D. Massachusetts. Oct. Term, 1827. This was a writ of eutiy. The parties agreed upon a statement of facts as follows: "The above action is brought by the plain- tiff [Horatio G. Cook] to recover possession of certain undivided portions of the lands and tenements described in the writs against the defendant [Samuel Hammond], who claims to hold possession under Eli Leavitt and Jane his wife in her right, who dispute the plaintiff's title; and the following are the facts agreed upon between the parties: In the year 1770 Royal Tyler died seised in fee of the demanded premises, leaving three children, viz. John S. Tyler, Royal Tjder, and Jane Tjder. The eldest son relinquished his right to a double share according to the existing law; and the three became seised in fee as tenants in common, each of one undivided third part. Jane afterwards inter- married with David Cook, by whom she had two children, viz. the plaintiff, and Maiy Tjder Cook, his sister. Jane Cook died in 1786. so seised of such third part, leaving those two children and her husband, whereby he became seised as tenant by the curtesy. Mary, the daughter, died during his life, in 1809. David Cook, after 1786, married a second wife, by whom he had three chil- dren, viz. Charles, Jane, wife of the said Leavitt, and Royal. David Cook died in 1823, he or his assigns continuing until that time in possession under his title, as tenant by the curtesy. It is considered immaterial, for the purpose of the present inquiry, whether Mary Cook, the sister of the plain- tiff, left issue capable of inheriting. It being agreed, that she shall be considered as hav- ing died without any; leaving any question, that could arise, if there be such, to be set- tled between them and the plaintiff or de- fendant, as there may be occasion. Upon this statement two questions are presented to the court: (1) Whether the demanded premises, of which Jane Tj'ler died seised, belong exclusively to the plaintiff, or to him and the defendant, according to their re- spective proportions, as tenants in common. (2) And if to them, as tenants in common, then, whether the plaintiff is entitled to a double share of his mother's estate; or whether he is only entitled to one moiety by inheritance from her, and saving any further right to the inheritance of his sister or father." C. G. Loring for plaintiff. C. S. Daveis, for defendant. STORY, Circuit Justice. Upon the very elaborate and learned arguments at the bar, every matter has been brought before the coui-t, that can assist in forming its judg- ment. I should have been glad, as this is a point of local law, to have found the princi- pal question adjudicated in our own state tribunals, so that my duty might have been merely to follow their decision. Unfortu- nately, no such case is known to exist, and it must therefore here receive an original de- termination. The rules of the common law have been fully stated at the bar. and indeed admit, upon the authorities, of no serious controversy. Where the estiite descended is a present estate in fee, no person can inherit it, who cannot, at the time of the descent cast, make himself heir of the person last in the actual seisin thereof; that is, as the old law states it, "seisina facit stipitem." But of estates in expectancy, as reversions and remainders, there can bo no actual seisin during the existence of the particular estate of freehold; and consequently there Ginnot be any mesne actual seisin, which, of itself, shall turn the descent, so as to make any mesne reversioner or remainder-man a new stock of descent, whereby his heir, who is not the heir of the person last actually seised of the estate, may inherit. The rule, there- fore, as to reversions and remainders, ex- pectant upon estates in freehold, is, that un- less some thing is done to intercept the de- scent, they pass, when the particular estate falls in, to the person who can then make himself heir of the original donor, who was seised in fee and created the particular es- tate, or if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or re- mainder may, in the intei'mediate period, have vested by descent; they do not. of course, form a new stock of inheritance. The law looks only to the heir of the donor or first pm-chaser. But while the estate is thus in expectancy, the mesne heir, in whom the reversion or remainder vests, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent, and make a new stock. Thus, he may by a gi"ant, or devise of it, or charge upon it, appropriate it to himself, and change the course of the descent. In like manner, it may be taken in execution for the debt of such mesne remainder-man or re- versioner during his life, and this, in the same manner, intercepts the descents. But if no such acts be done, and the revereiou or remainder continues in a com'se of devolu- tion by descent, the heir of the first donor or purchaser will be entitled to tlie whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men, through whom it has de- volved. These doctrines are fully and learn- edly explained by Mr. Watkins in his Essay on Descents, and are so well known, that it seems unnecessary to give to them any illus- trative commentaiy. Watlv. Desc. 137 (110), 148 (110), 153 (120). Now the operation of this doctrine in respect to estates in fee in possession, which are subject to dower and tenancy by the curtesy, is very important. 188 ESTATES IN KEAL PROPERTY. In the former case, though the heir at law i may obtain an actual seisin by entry into ; the whole estate, yet, by the assignment of dower, that seisin, as to the third part as- j signed as dower, is defeated ab initio; for the dowress is in of the seisin of her hus- 1 band, and her estate is but a continuance of this seisin. The same principle is true of tenant by the cm-tesy. It Is even stronger, for the law vests the estate by curtesy in the husband without any assignment, and even without any entry, if the wife were already in possession, his estate being initi- ate immediately on issue had, and consum- mate by the death of his wife. So that there is no chasm between the death of the wife and his possession, as there is in case of the death of the husband and the assignment of dower to the wife, in which there can be a mesne seisin. Watk. Desc. (82) 104. Nothing, therefore, but a reversion passes in such case to the heir. But it is a misnomer to call it a case of suspended descent. In such case of curtesy, the reversion descends and vests absolutely in the heir. He may sell it, in- cumber it, devise it; and it is subject to ex- ecution as part of his property dm-ing his life. The descent to the heir is not suspend- ed, but the actual seisin of the fee is not in him, since by law the actual seisin is in the tenant by the curtesy. Applying these principles to the case now- in judgment, it is obvious, that when Jane Tyier, the wife of David Cook, died in 178G, seised of the premises, her husband became tenant thereof by the ciu'tesy, and conse- quently the reversion thereof alone descend- ed to her children, viz. to Horatio G. Cook (the plaintiff) and Mary T. Cook. By the act of descents of 1783, c. 36 [supra], the eldest son was entitled to two shares, and this right, if at all, took effect at the time of the descent cast; and it is just as applicable to the case of a reversion or remainder as to a present estate in fee. Nothing has since taken place to devest the title of the plaintiff by descent from his mother, and as the es- tate has fallen into possession by the death of his father, his reversion has become a present estate to two thirds of the premises in conti'oversy. The great question tarns up- on the third of the reversion belonging to Mai-y T. Cook. She die'd in 1809, and if without issue, and it had been a present es- tate in fee, her father would have inherited it as her heir. It was but a revei'sion, and if the rule of the common law be in force here, the plaintiff, being at the time of the death of the tenant by the curtesy the sole heir of his mother, is entitled to take the whole estate. Have our laws abrogated the rule of the common law? By the colonial acts of 1641 and 1649 it was ordered, that "when the husband or parents die intestate, the county court &c. shall have power &c. to divide and assign to the children, or other heirs, their several parts and portions out of the said estate; provided the eldest son shall have a double portion; and where there are no sons, the daughters shall inherit as copartners, unless the com-t, upon just cause alleged, shall otherwise determine." There is nothing in this language, which points to any particular kind of estates, and the language is sufficiently broad to cover all kinds. By the provincial act of 1692 (4 W. & M. c. 8) it was enacted, "that every person lawfully seised of any lands, tene- ments, or hereditaments within this province, in his own proper right in fee simple, shall have power to give, dispose, and devise the same," &c. &c.; and if not so disposed of, then "the same shall be subject to a division with his personal estate, and be alike dis- tributed according to the rules hereinafter expressed for intestate estates." Here, again, there is no language discriminating between the various kinds of estates, whether present or in expectancy, unless some stress can be laid on the words "lawfully seised of any lands," &c. the force and effect of which will come under consideration in construing the act of descents, ujider which the present question arises. The act of 1783 (chapter 36) enacts, that "when any person shall die seised of any lands, tenements, or heredita- ments, not by him devised, the same shall descend in €qual shares to and among his children, &c., except the eldest son," &c. &c. Another clause declares, that "the real estate shall stand chai-geable with all the debts of tlie deceased over and above what the per- sonal estate shall be sufficient to pay," &c. And throughout the act, there is a studious silence as to any differences in the course of descent of any estates capable of descend- ing. Then came the act of descents of 1805 (chapter 90), which was drawn by Chief Jus- tice Parsons, and after a full explanation of his views, with his permission perused by me, then being a member of the legislature, and with what little aid and co-operation 1 could give it, passed into a law. That act provides, that "when any person shall die seised of any lands, tenements, or heredita- ments, or of any right thereto, or entitled to any interest thei'ein, in fee simple, or for the life of another, not having lawfully de- vised the same, the same shall descend in equal shares to his children, &c. &c. ; and when the intestate shall leave no issue, the same shall descend to his father," &c. &c. Mary T. Cook died in 1809, and consequently this act regulates the descent of her estate. The present case is obviously within the words of the act No reasonable doubt can be entertained, that a reversion is a "right" or "interest" in lands. In truth, it is in- cluded under the denomination even of "land," and a grant of land will convey a reversion. Com. Dig. "Estates," B, 12. A fortiori, it is included under the description of "tenement" and "hereditament," for these are words of more extensive import, nomina generalissima. Com. Dig. "Grant," E; Shep. Touch. 88; 1 Inst 6a. The language REVERSIONS. 189 of the act is, "when any person shall die seised." But it is not a just construction of tlie act, to interpret this as intending an actual seisin. Lord Coke says (1 Inst, l.jla). "seisin is common, as well to the English as French, and signifies, in the' common law, possession." Com. Dig. "Seisin,"' A, 1. It may be either a seisin in law. or a seisin in fact. Now, without adverting to what con- stituted, in the ancient law, a seisin in law, as contradistinguished from a seisin in d ed, it is sufficient to say. that for centuries the language of the law has been, that a rever- sioner is "seised" of the reversion, although dependent upon an estate for life. Thus, in Plowden, 191, it Avas held by the court, that, where a reversion is dependent upon an estate for life, the reversioner, in pleading. may state, that he is seised of ths r^vcrsio i. Watk. Desc. c. 1, §§ 1 C-'T), 30-44: 2 Bl. Connn. 127. By this no more is meant, than that he has a fixed vested right of future enjoyment in it. If a sense, at least as large as this, wer*' not given to the term "seised," it w'ould fol low, that the descent of reversions and re- mainders vested by piu'chnse in the ancestor, and even of reversions vested in the original donor of the particular estate, would be wholly unprovided for, both by the provin- cial acts of descents of 1692, and the state act of 1783. Cases of this sort must have been innumerable, and yet no doubt ever was entertained, that the descent of such remainders and reversions was provided for by these acts. My opinion is, however, that the word "seised," used in all these acts, has a broader signification, and such as belongs to it in common parlance. It is equivalent to "owning;" and "seisin" is equivalent to "ownership." My reason is, that otherwise none of these acts would regulate the de- scents of estates, whereof the ancestor, at the time of his death, was disseised; and yet, from the first existence of these acts, up to the present day, it has always Leen understood, that the descent of estates from the disseisee, was to the same heirs as w^o.ild inherit, if he died in the actual seisin. The language "of the provincial act of 1092 is, "any person lawfully seised;" but that of the acts of 1783 and ISO.^ is, any p-rsjii who "shall die seised." Upon a descent, there- fore, cast from an ancestor, who was dis- seised in his life-time, and died uis.-eised, no title would pass to his heirs under these acts (but pass to the heir at common law), if we did not interpret the word "seised" as e'quivalent to "owning" or "entitled to;" and this, as far as my knowledge extends, has been the uniform interpretation. If, how- ever, any doubt whatsoever could remain on this point, it is put completely at rest by the supplementary clause in the act of ISUo; "or of any right thereto, or entitled to any in- terest therein." And as one object of that act was to clear away latent ambiguities, and to affirm the settled construction upon the former acts, these words seem appropri- ate for the very purpose under consideration. I confess I should not have entertained any doubt as to the true construction, without them. There are other parts of these acts, which satisfy my mind, that the legislature intended, by them, to provide effectually for the descent of all the real estate of the in- testate. The phrase, "real estate," occurs frequently in the acts, as of the same im- port with the words, "lands, tenements, and hereditaments;" and the provision, making the "real estate" of the intestate liable to his debts, was evidently meant to be co-exten- sive with the property, which would pass by descent. If the legislature, by these acts, meant to provide a system of descents for all the real estate, which is vested in the intestate at the time of his death, and refer to him alone as the stock of inheritance as to such real estate, upon what ground can re- sort be had to the common law for a rule of descent in the present case. The legislature has nowhere named reversions or remain- ders, as entitled to a distinct course of de- scent. It has nowhere stated, that the heir must make himself heir, when the estate falls into possession of the original reversion- er, or of the purchaser of such remainder. It has been perfectly silent on this subject; and has uniformly looked to the last in- testate, as the stock of descent of the real estate vested in him; and in one or two ex- cepted cases only (as of a child dying un- der age, &c.) has made a special provision, interfering with the general policy of the acts. These very exceptions are strong to show, that no others w^ere intended. If the argument at the bar can be maintained, then this is a case wholly unprovided for by any statute, and the descent is to be reg- ulated by the canons of the common law. But if reversions and remainders are out of the statute, so far as respects the stock of inheritance, what ground is there to stop here, and not apply the same rule to the heirship? If the statute meant to leave the rule of the common law in force, as to re- versions and remainders, then the heir at common law, that is, in case of several chil- dren, the eldest son, is entitled to take the whole. Upon what principle can we apply our canons of descent to reversions and re- mainders to ascertain wlio are the heirs, and, at the same time, refuse the like applica- tion as to who is the ancestor, or stock of inheritance? If our statutes do not con- template cases of reversions and remain- ders, then such cases are to be governed wholly and exclusively by the common law. Such a doctrine has not, as I recollect, been asserted. The present question must have often oc- curred, in many cases of dower, and in still more numerous cases of tenancy by the cur- tesy. Yet hitherto there has been a total si- lence among the profession on the subject. There has not been any case within the mem- ory or tiadition of any man, in which such a 190 ESTATES IN REAL TROPERTY. right has been asserted or acquiesced in, as the plaintiff now claims. Judge Trowbridge, in his reading on the statute of distributions (Precedents, Declar., Ed. 1802, p. 290) of 1692, makes no allusion to any such doctrine; and yet if it had been stirred, it could scarcely have escaped his learned mind, and must have constituted a very important part of his reading. I have a note of a very mem- orable case (Ames v. Gay), in which the ques- tion must have arisen, and must have been decided, if there had been any such doctrine then afloat My note stites, that the case was an ejectment decided on a special ver- dict in 1749, and that the facts were as fol- lows: One Fisher was seised of the estate in question, and devised the same to his wife, during her widowhood, remainder in fee to his daughter Mary, who was the wife of the demandant. The testator died, and after- wards, during the life of Fisher's widow, Mary, the devisee, died, leaving an only child, Fisher Ames, who afterwards died without issue, and intestate. Afterwards the widow of Fisher died, and thereupon the demand- ant brought the suit, as heir of his son, Fisher Ames. The defendant (Gay) claimed the es- tate as husband of the niece or Mary, the wife of the demandant. The court, after argument, gave judgment for the demandant. 1 have understood, that this was the first cause in which the point was decided, that the father could inherit from the son, imder the provincial act of 1G92. But it presents the identical question now before the com-t, and the father could not have recovered, if the plaintiff's argument is now well found- ed. The case of Williams v. Amory, 14 Mass. 20, seems to have proceeded upon the, ground, that a remainder-man, who died be- fore the expiration of the tenancy for life, was a proper stock of descent. In that case the intestate took by pm'chase, and therefore was at common law a proper stock of inher- itance, and as he left only one child, the descent was the same as at the common law. The com-t, however, took no notice of the case in tliis particular view. But the court there decided that remainders and reversions were, under om- laws, liable to be taken in execution for the debts of the reversioner and remainder-man, and comprehended as "real estate" of the debtor under om* statute of executions of 1783, e. 57. The cause of Wliitney v. Whitney, 14 Mass. 88, is more in point. There the com't held, that a rever- sion in the hands of a mesne reversioner was, on his death, to be considered as assets in the hands of his admiuisti'ator for the pay- ment of his debts, notwithstanding the ten- ancy for life did not expire until after his death. The reasoning of the comt proceeds upon the admission of the doctrine of the common law; and that it had been changed by oiu- statutes. If the reversion, notwith- standing the death of the party, before the life estate falls in, be assets, because it con- stitutes a part of the "real estate" of the mesne reversioner, it seems to me, that for the same reason, it must be liable to distri- bution among his heirs. Upon the whole, my opinion on this ques- tion is, that the common law rule, as to de- scents of reversions and remainders, has been altered by our statutes, and is not in force here; and that, by om- statutes, rever- sions and remainders, of which the intestate is the owner at the time of his death, are to be disti-ibuted among his heirs in the same manner as estates in possession. In Con- necticut the same question has arisen under the statute of descents of that state, which contains provisions, in substance, like ours; and after very elaborate arguments, the court came to the same results, to which my own judgment has been led. There is a point, which has been suggested at the argument, upon which it may be well to dwell for a moment, as it fortifies the con- clusion already expressed by the court, and leads adverse to the right of the demandant to recover the third of the reversion, which devolved on his sister Mary. It is this, that as upon her death, her right in the reversion, by our statutes, descended to her father, and vested in him as a mesne reversioner, and as he was then tenant for life, by the ciulesy, of the whole premises, he became by opera- tion of law, to this third part, seised in fee by the union of both estates. In other woixls, his estate for life, as to this third part, became merged in the reversion in fee, which devolved upon him. Lord Coke puts (1 Inst. lS2b) several analogous cases. "If (says he) a man maketh a lease to two for their lives, and after granteth the reversion to one of them, the jointm-e is severed, and the reversion is executed for the one moiety, and for the other moiety there is tenant for life, the reversion in the grantee." So, "if lessee for life granteth his estate to him in the reversion, and to a sti'anger, the jointm-e is severed, and the reversion executed for the one moiety by the act of law." If I may be allowed to state a fact within my personal knowledge, I would add, that at an early pe- riod of my professional life, I put this very inquiry to Mr. Chief Justice Dana, in order to ascertain if the common law rule had evtr been recognised here. His answer was, that he knew no distinction admitted in de- scents here, between estates in possession and in reversion. I refer to this merely to show that his extensive learning and practice had not led him to notice the existence of any distinction in tliis state. Judgment for plaintifC, two thirds of the premises. POSSIBILITY OF IIEVEIITER. 191 SLEGEL V. HERBINE et al. Appeal of LAUEIl. (23 Atl. 996, 148 Pa. St. 236.) Supreme Court of Pennsylvania. March 28, 1892. Appeal from court of common pleas, Berks county; G. A. Endlich, Judge. ■Suit by Sue J. Slegel, executrix of Joel Slegel, against Samuel G. Herbiue and oth- ers, county commissioners of Berks county, with notice to Rebecca Lauer, executrix of William Rhoads, Sr., and John W. Rhoads, to obtain the cancellation of a deed. From a decree for plaintiff, Rebecca Lauor ap- peals. Affirmed. The following is the opinion of Judge G. A. Endlich in the court below: "Plaintiff is in possession of a strip of land 8 feet wide and 2oU feet deep, in the city of Reading, adjoining on the south property of the estate of William Rlioads, Sr., deceased, which formerly belonged to the county of Berks, and was the site of the old county jail. On December 1, 1772, plaintiff's predecessor in title, George Fleisher, with Margaret, his wife, in con- sideration of the payment to them of seven- teen pounds, lawful money of Pennsylvania, by indenture duly executed and acknowl- edged, and recorded in the recorder's office in Deed-Book B, vol. 2, p. 71, 'granted, bar- gained, sold, released, and contirmed unto Henry Reuthmeyer, David Bright, and Abra- ham Lincolu, commissioners of Berks coun- ty, and to their and each and every of their successors in the said office of commission- ers, a certain piece or part of the said above mentioned and described lot, situate on the south side thereof, adjoining the l)rison lot and wall, containing in front on Callowhill street aforesaid, north and south, eight feet, and in length or depth, east and west, two hundred and thirty feet, to a twenty feet alley; together with the appur- tenances. (Excepting and hereby reserving unto the said George Fleisher, his heirs and assigns, forever hereafter, the free liberty and use of the said hereby granted prem- ises, and every part thereof, for an open yard, garden, or grass lot, with the rents, issues, and profits of the same, and every part thereof: provided, alwa5^s, that the said George Fleisher, his heirs, executors, administrators, or assigns, keep no other gates or fences about the same except pale gates and fences two inches and a half apart and not to exceed four feet and a half in height.) To have and to hold the said piece or portion of ground hereby granted or mentioned or intended so to be, with the appurtenances (except before excepted), un- to the said Henry Reuthmeyer, David Bright, and Abraham Lincoln, commission- ers as aforesaid, and their successors in the said office; to and for the use, intent, and purposes following, that is to say: To be and remain forever hereafter unbuilt on, in order to prevent any prisoner or prison- ers making their escape over the said prison wall by reason or means of any building to be erected contiguous to the same wall.' ••By section 14 of the act of April 8, 1848 (P. L. pp. 399, 400, 407), the commissioners of Berks county were 'authorized, as soon after the removal of the prisoners then in jail from the said old jail to the (newly erected) Berks county prison, as to them shall appear expedient, to sell the old jail property in the city of Reading, consisting of the old jail buildings and the appurte- nances, and a lot of ground, being on the corner of North Fifth and Washington streets, in the said city of Reading, and hav- ing sixty feet on said North Fifth street, and 230 feet on Washington street, and to assure and convey to the purchaser or pur- chasers the said property, by good and suffi- cient deed or deeds." Under this statute the commissioners sold and conveyed the old jail property, with the appurtenances, to William Rhoads, Sr.. the deed being dated April 2, 1849, and recorded in Deed-Book A, vol. 56, p. 232. About that time the prop- erty ceased to be used for the purpose of a county jail. The new prison is removed more than a mile from the old location. "The object of the bill filed in this case is to obtain the cancellation of the instrument of December 1, 1772, the plaintiff alleging that she is anxious to sell the property of the testator, 'but is unable to do so at a proper and adequate price, for the reason that the said Rebecca Lauer and John W. Rhoads, defendants in this suit, insist upon and have made public that they are entitled to the rights and privileges of the county commissioners contained in said agreement of December 1, 1772, and thereby have pre- vented and still prevent a sale of said prop- erty for a proper price, to the great incon- venience and damage of your orator.' The bill names as defendants the present com- missioners of Berks county and Rebecca Lauer, executrix of William Rhoads, Sr.. de- ceased, and John W. Rhoads; the will of William Rhoads, Sr., deceased, giving the property to Rebecca Lauer and John W. Rhoads for life, with remainder to their children. The commissioners have de- murred to the bill, while the remaining de- fendants have answered. By agreement of counsel representing the several parties, the demurrer and the bUl and answer were set down for hearing and argued at the same time. "As preliminary to the decision upon oitlier submission, we shall have to declare our interpretation of the instrument of 1st December, 1772. It is, in form, a convey- ance to the commissioners and their suc- cessors in office, i. e., as these boards were then regarded as corporations (Vankirk v. Clark, 16 Serg. & R. 280. 290). a grant of the fee (2 Bl. Comm. p. 109). Moreover, the 192 ESTATES IN REAL PROPERTY. grant is of the land itself, subject to a con- ditional reservation (see Adams v. Valen- tine, 33 Fed. 1) of the use of the surface. There is therefore no room for the theory that the effect of the deed is to create an easement in favor of the grantees. An ease- ment is a liberty, privilege, or advantage which one may have in the lands of anoth- er without profit. Big Mount. Improvement Co.'s Appeal, 54 Pa. St. 361, 3G9. It may be merely negative (4 Sharsw. & B. Lead. Cas. Real Prop. p. 125), and may be created by a covenant or agreement not to use land in a certain way (Id. p. 131) ; but it cannot be an estate or interest in the land itself, or a right to any part of it (Id. p. 121; Huff v. McCauley, 53 Pa. St. 206, 209; Grubb v. Grubb, 74 Pa. St. 25, 33). If any easement is created by this instrument, it is by the reservation, and in favor of the grantor. It seems clear that, had the grantor or his as- signs undertaken to use the land in a man- ner different from that permitted by the reservation, coupled with the proviso, the grantees or their successors could, by eject- ment, have ousted them altogether. See Bear v. Whisler, 7 Watts, 144. But eject- ment does not lie to enforce an easement or privilege. Black's Lessee v. Hepburne, 2 Yeates, 331; Canal Co. v. Young. 1 Whart. 410, 424. In construing a deed, however, we are to look at it as a whole, so that no part of it may be rejected. Wager v. Wa- ger, 1 Serg. & R. 374, 375. 'The premises of a deed are often expressed in general terms, admitting of various explanations in the habendum,' which 'may lessen, enlarge, ex- plain, or qualify the premises, but not total- ly contradict them' (Id.); and for that pur- pose the court in that case interrogates the habendum and the declaration of uses. These, in the present instance, could not have the effect of reducing the grant of a fee in the premises to anything less than a fee, but they can explain the nature of that fee to be either an absolute or a base or qualified one. It must not be forgotten that such a fee is nevertheless a fee-simple, "^because it may last forever in a man and his heirs, the duration depending upon the concurrence of collateral circumstances which qualify and debase the purity of the grant. 2 Bl. Comm. p. 109. The qualifica- tion must be found in the instrument itself. Canal Co. v. Young, 1 Whart. 410; Kerlin v. Campbell, 15 Pa. St. 5(X). But no special or technical words are required to establish it. 2 Sharsw. & B. Lead. Cas. Real Prop. p. 23. 'The construction of a deed,, as to its opera- tion and effect,' says Kent, speaking of this very matter, 'will, after all, depend less up- on artificial rules than upon the application of good sense and sound equity to the ob- ject and spirit of the contract in the given case.' 4 Kent, Comm. p. 132. What is needed is that the deed on its face contain a reservation or declare a specific purpose for which the land was conveyed, and from which the reservation may be implied. Ca- ton, J., in Adams v. Logan Co., 11 111. 336. Of course, the mere expression of a purpose- will not of and by itself debase a fee. Thus a grant in fee-simple to county commission- ers of land 'for the use of the inhabitants of Delaware county, to accommodate the pub- lic service of the county,' was held not to create a base fee (Kerlin v. Campbell, 15 Pa. St. 500); as also a grant to county com- missioners and their successors in office of a tract of laud, with a brick court-house thereon erected, 'in trust for the use of said county, in fee-simple,' the- statute under which the purchase was made authorizing the acquisition of the property for the pur- pose of a court-house, jail, and offices for the safe-keeping of the records (Seebold v. Shitler, 34 Pa. St. 133). Similarly a devise of land to a religious body in fee 'there to build a meeting-house upon,' etc., was held to pass an unqualified estate (Griflitts v. Cope, 17 Pa. St. 96); as was also a grant to a congregation, 'for the benefit, use, and be- hoof of the poor of said * * * congrega- tion, * * * forever, and for a place to erect a house of religious worship, for the use and service of said congregation, and, if occasion shall require, a place to bury their dead' (Brendle v. German Reformed Congre- gation, 33 Pa. 'St. 415). "There are, however, about these cases, some features which must not be overlooked. In Kerlin v. Campbell, supra, the conveyance was absolute, and the matter relied on to de- base the fee granted by it was contained in another instrument, to which the original grantor was not privy. Page 506. In See- bold V. Shitler, supra, the act of assembly authorizing the pui-chase required a convey- ance to the commissioners of 'a full and suf- ficient deed in fee-simple.' The court says that 'no conveyance for a less estate, or for a limited fee, clogged and confined with con- ditions or qualifications of any sort, would have fulfilled the requirements of the legis- lature;' and 'any other construction would make the deed a fraud upon the citizens who erected the court-house, and upon the coun- ty that erected afterwards the county of- fices and the county jail, by a large ex- penditure of the county funds.' Page 137. But, further, it is apparent in all the cases cited that the purposes for which the grants were made were really all the purpop..^ for which the grantees could lawfully hold real estate. Unless, therefore, the absurd posi- tion be assumed that a corporation can in no event take a fee-simple absolute, because its power to hold land is limited to the uses for which it is authorized to acquire and employ it, a declaration in the grant that it is con- veyed for those uses cannot be deemed to im- port a limitation of the fee. Expressio eorum quae tacite insunt nihil operatur. Such a declaration can amount to no more than an explicit assertion of the intended legality of the grant. As was said in the case of Grif- POSSIBILITY OF REVERTER. VS6 fitts V. Cope, supra, at page 100: 'The use to which the granting clause declares that this land is to be applied is of the character which the law requires, and is the most ordinary pur- pose for which religious societies require land. The presumption would therefore appear fair and obvious that by that declaration the de- visor merely meant to make the grant lawful upon its face.' And in Brendle v. German Reformed Congregation, supra, at page 42o: 'AVhat, then, is the efficacy of the declaration that the congregation holds the land for the use of its poor, for a church, and for a burial ground? Nothing, except to show that they hold it for the purpose for which the law al- lows congregations to hold land; not to limit their own title, but to recognize the uses al- lowed by law.' It is at once apparent that the present case is wholly different, in that the purpose expressed in this grant is not one for which counties usually acquire a fee- simple in lands. What those purposes may lawfully be since the act of April 15, 1834, is set forth in the proviso to section 3, cl. 2, of that statute. 1 Brightly, Purd. Dig. p. 304, pi. 14. Before its enactment, the gen- eral power of county commissioners to talie lands was confined to such as were bought in by them to secure the county debts, on pro- cess from the courts, or their own process, authorized by law, or mortgages given to se- cure the county debts. Vanliirli v. Clarli, 16 Serg. & R. 286, 290. That they might en- ter into a valid agreement with a property holder adjoining, e. g., a county prison, not to build against its walls, with a view to pre- ventiug the escape of prisoners while the building was used as a place for their confine- ment, seems scarcely doubtful. And, if they might do that by a mere agreement, they might, in order to be in position to insure the accomplishment of the purpose, do so by taking a fee in the property to be kept open for such purpose. But they could not take more; they could not make an investment of more than Avas required by the immedi- ate and lawful object in view; that is to say, whilst they could take a fee, that fee must be determinable upon the cessation of the necessity or occasion of its acquisition and the possibility of serving the purpose of its creation. It is surely not unreasonable to suppose that this limitation upon the com- missioners' powers, and the contingency that at some future time the use of their property as a jail should be abandoned, were in the minds of the parties to the deed of 1st De- cember, 1772. and had some influence in fix- ing the consideration for the grant. The em- ployment of the word 'forever' seems insig- nificant in this connection; for, as has been seen, the estate might continue forever, and so, in that case, would the purpose. On the other hand, a grant of an estate 'forever' may yet be but of a life-estate. 2 Bl. Comm. p. 107. Hence there is a peculiar propriety in applying to the parties' declaration of pur- pose the familiar principle of interpretation, GATES, K. P.— 13 expressum facit cessare taciturn. That dec- laration shows but one purpose, and shows it clearly. It was not to afford light, air, or access to the adjoining tenement, to add any- thing to it that was needful or convenient to its use and enjoyment, nor to increase the size of the plot upon which the prison stood, or to enhance its value, set off its architec- tural proportions, or protect it against fire. It was simply to serve the one declared ob- ject,— the hindrance of the escape of prison- ers,— which the erection of walls contiguous to those of the prison would facilitate. "In view of all the circumstances, there seems to arise from the express declaration of purpose a necessary implication of tlie ex- clusion of every other. It Is a rule in the construction of a statute, pleading, contract, will, and other instrument, that what is clearly implied is as much a part of it as what is expressed. U. S. v. Babbitt, 1 Black, 61; Hanchett v. Weber, 17 111. App. 114. The instrument under consideration is, there- fore, to be treated precisely as if it contained a declaration that the grant was for the pur- pose mentioned, and no other. But, where an estate is conveyed in fee for a specified purpose "and no other,' the fee is a base fee, determinable upon the cessation of the use of the property for that purpose. Kirk v. King, 3 Pa. St. 43G; Scheetz v. Fitzwater, 5 Pa. St. 126. It is scarcely needful to add that those decisions which relate to the construction of a deed as conveying an estate on condition subsequent, and deny that effect to a recital that the grant is upon a certain consideration, or to a collateral covenant (see Cook v. Ti-imble, 9 Watts, 15; Canal Co. v. Young, 1 Whart. 410; Perry v. Scott, 51 Pa. St. 11!); First Methodist Episcopal Church v. Old Co- lumbia Public Ground Co., 103 Pa. St. 608), are inapplicable. The purpose here is not re- cited as part of the consideration, nor is its observance collaterally covenanted. Nor is the estate here granted one upon condition. Although there is some confusion in decisions and text-books concerning these two species of estates, there is a radical distinction— and one, as we pointed out in the recent det-isiou of this court in Schaeffer v. Messersmith, Com. PI. Berks Co., No. lO."). May term. 1890, well established in the jurisprudence of tliis state— between a fee determinable by limita- tion aud an estate upon condition subse- quent. 2 Sliarsw. & B. Am. Cas. Real Prop, pp. 19, 20. Nor, again, does the case of Yea- ton's Appeal, 105 Pa. St. 125, relied on by re- spondents, bear upon the question in hand. That was the case of an easement created by a covenant contamed in a deed, in terms per- petual, not to build upon the north or east of the grantor's church building, excepting that, if the same should at any time cease to be used for that purpose, a wall might be built on the east side. This was a limitation ap- pointed by the parties themselves upon the effect of the abandonment of the then use of the dominant tenement; aud in restricting 194 ESTATES IN REAL PROPERTY. the owner of the servient one to the terms of this limitation the supreme court in effect but applied the principle which we have ap- plied to this ease,— expressum facit cessare tacitum. Of course, upon the determination of a base fee, the property reverts to the grantor (2 Bl. Comm. pp. 109, 110) without any claim or act on his part, where it is de- terminable by limitation (Schaeffer v. Mes- sersmith, supra). In the meanwhile the es- tate is out of him, and all that remains to him is the mere possibility of reverter. 4 Kent, Comm. p. 10. Yet this mere possibility is capable of transmission to his grantees, and will pass to them under a conveyance of the reversion. Scheetz v. Fitzwater, 5 Pa. St. 126. "We have next to pass upon the questions raised by the demurrer and by the submis- sion of the cause upon bill and answer. "First. As to the demurrer. Taking up the grounds of demurrer as they stand upon the record, we find: "(1) An allegation contained in the first and second grounds, in substance, that the suit ought to be against the county of Berks, and not against the commissioners individually. The act of AprU 15, 1834 (P. L. p. 537), pro- vides in section 9 (1 Brightly, Purd. Dig. p. 364, pi. 18) Uiat the titles to all and singular the court-houses, jails, prisons, and work- houses, together with the lots of land there- unto belonging or appertaining, as they now are or heretofore have been vested in the commissioners of the respective counties for the several use of the said counties, respec- tively, shall be, and they are hereby declared to be, vested in the respective counties, for the use of the people thereof, and for no oth- er use; and section 3 of the same statute (1 Brightly, Purd. Dig. p. 364, pi. 13) confers upon the sevei'al counties capacity, as bodies corporate, to sue and be sued as such by the corporate name. Whilst, as a general rule, land cannot be appurtenant to land (Grubb v. Guilford, 4 Watts, 223, 244), yet it may be made so by the intent and acts of the parties (Id.; Grubb v. Grubb, 74 Pa. St. 25, 33). The use of this strip of land permitted by the deed of 1st December, 1772, indicates such an intention, at least sufficiently to permit it to be regarded as an appurtenance to the jail property within the spirit of the act of 18.34. and, as such, to the extent of the estate held by the commissioners to have thereby be- come vested in the county of Berks. This .suit, therefore, under the decision of W^ilson V. Commissioners, 7 Watts & S. 197, should have been brought against the county. But counsel for plaintiff and for the demurrants have agreed that, in event of the court's so holding, the bill should be amended by substi- tuting the county of Berks as defendant in place of the commissioners named. Accord- ingly we shall treat the bill as properly brought against the county, and the formal amendment may be made hereafter. The other defendants are not thereby prejudiced. Having answered to the merits, the objection could not, it would seem, be now made by them (see Glover v. Wilson, 6 Pa. St. 290, 292; Fritz v. Commissioners, 17 Pa. St. 130, 134, 135), and, besides, 'if the misjoinder is of parties as defendants, those only can de- mur who are improperly joined' (Story, Eq. PI. § 544). "(2) The next ground of demurrer is that the interests of the defendants are not iden- tical, but in conflict, and therefore they should not be joined in this proceeding. This assertion is based upon a misconception of the effect of the instrument of 1st December, 1772. There cannot be any question of con'- flicting interests between these defendants. "(3) It is next asserted that this court has no jurisdiction to declare null and void the deed of 1st December, 1772, inasmuch as the same confers substantial rights upon the county of Berks, or its grantee, and the title of said premises depends upon the same. What was the nature and extent of these rights, and what the character . of the title, has already been declared. It is only neces- sary in this connection to examine into the jurisdiction of this court to grant the relief prayed for. The particular form of equity jurisdiction here invoked is that which is exercised to remove clouds upon title; the re- lief in such cases being granted on the prin- ciple quia timet; that is, that the deed or other instrument constituting the cloud may be used injuriously, or vexatiously embarrass or affect the plaintiff's title to real estate. 3 Pom. Eq. Jur. § 1398. The existeijce of this as an independent source or head of jurisdic- tion in the courts of this state, not requiring any accompaniment of fraud, accident, mis- take, trust, or account, or any other basis of equitable intervention, is abundantly estab- lished. Dull's Appeal, 113 Pa. St. 510, 6 Atl. 540; Stewart's Appeal, 78 Pa. St. 88; Wilson V. Getty, 57 Pa. St. 266; Eckman v. Eckman, 55 Pa. St. 269. 273; Kennedy v. Kennedy, 43 Pa. St. 413, 417. The rules as to the status of the plaintiff to invoke the exercise of this jurisdiction, as laid down in 3 Pom. Eq. Jur. § 1399, note 4, p. 36, approved in DuU's Ap- peal, supra, at pages 517, 518, 113 Pa. St., and page 543, 6 Atl., are as follows: 'When the estate or interest to be protected is equita- ble, the jurisdiction should be exercised, whether the plaintiff is in or out of posses- sion; but when the estate or interest is legal in its nature, the exercise of the jurisdiction depends xipon the adequacy of legal remedies. Thus, for example, a plaintiff out of posses- sion, holding the legal title, will be left to his remedy by ejectment under ordinary circum- stances; but when he is in possession, and thus unable to obtain any adequate legal re- lief, he may resort to equity.' The occasions for and the mode of the exercise of the juris- diction are stated to be the following; 'When- ever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach POSSIBILITY OF REVERTER. lyo or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or main- tain his right by any course or proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice or the rights of the parties may require.' xMartin v. Graves, 5 Allen, GOl, ap- proved in Stewart's Appeal, supra, at page 96, and Dull's Appeal, supra, at page 516, 113 Pa. St., and page o42, 6 Atl. And again: 'If a case is made out which will justify the court in declaring a contract at an end, it will in general be ordered to be delivered up to be canceled.' Wilson v. Getty, supra, at page 270. It is objected, however, that 'the proper con- struction of a deed is not a subject of equitable jurisdiction.' Grubb's Appeal, 90 Pa. St. 228, 233. No doubt there is not in this state, as there is in some others, any special jurisdiction conferred upon the courts of equity by reason of which they may be called upon to declare the construction of a deed or will or other in- strument; nor, of course, will the mere fact that the proper construction of such is in dispute confer chancery jurisdiction, in the absence of some other recognized basis of equitable intervention. But it will scarcely be pre- tended that where a party has no legal reme- dy whereby to protect his property against the assertion of an unfounded or expired claim the established equity jurisdiction is ousted by the mere fact that incidentally it will be necessary to put a construction upon a written instrument. Such a doctrine would practically amount to a denial of the juris- diction itself. Again, it is urged upon us that a court of equity has no jurisdiction to settle a disputed legal right to land on a bill In equity filed by the party in possession, averring that a multiplicity of suits at law may result to redress threatened trespasses. Washburn's Appeal, 105 Pa. St. 480. Of course not; but that is not this case. In ac- tions respecting real property, if there be no equitable ground of relief involved, the rights of the parties must be determined at law; the interference of equity in such a case rest- ing on the principle of a clear right to the enjoyment of the subject in question, and an injurious interruption of that right, which, upon just and equitable grounds, ought to be prevented, and the party contesting that right, in the first instance dependent upon conflicting proofs, being entitled to have them passed upon by a jury. Id. A very different case is presented when the interven- tion of the court is asked upon a recognized ground of equitable jurisdiction; when the rights of the parties result from an undis- puted written instrument, aided by facts that are admitted; when the injury complained of, arising from conceded acts, is partly sub- sisting and actual and partly anticipated, and (if such a character as to afford no redress at law.. No doubt, if the plaintiff were to pro- ceed to build upon the strip of land in dis- pute, it is possible that a suit at law would be instituted against him in which his rights would eventually be passed upon. But it is equally possible that no such suit would be brought, at least for a period of years. In the meanwhile, the title, not merely the pos- session, would remain doubtful and unmar- ketable. But the owner of property has a right, not only to use it, but to sell it; and in that right, incapable of being enforced in any legal action he can institute, he is enti- tled to be protected. This ground of demui*- rer must therefore fall. "(4) The last ground is that the plaintiff is not entitled to relief in this proceeding under the premises, as her predecessor reserved for himself and his assigns certain rights, which it is not averred have been interfered with. What has already been said sufficiently dis- posed of this ground of demurrer, which can- not be sustained. "Second. As to the answer. But little re- mains to be said in passing upon the submis- sion on bill and answer. The allegation of the respondents is, in substance, that the in- strument of 1st December, 1772, invested the grantees therein with an indefeasible right, which, by the deed of 2d April, 1849, passed to William Rhoads, Sr., as appurtenant to the old jail property. The estate of the county of Berks, under the instrument of 1st Decem- ber, 1772, being a base fee, whether principal or appurtenant to the old jail property, it could pass to its vendee nothing more than it had, i. e., as to this strip of ground, nothing, if the estate had terminated before the date of the conveyance by an abandonment of the purposes of the grant; or an estate detei-mina- ble upon such abandonment, if prior to it in date. 'If the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer, and this is founded upon the sound maxim of the com- mon law that nemo potest plus juris in alium transferre quam ipse habet' 4 Kent, Comm. p. 10. Indeed, it is not clear how, under the act of assembly authorizing the sale and con- veyance under which respondents claim, any- thing more could pass. If it were conceded that the estate of the county, under the deed of 1st December, 1772, was a fee-simple abso- lute, it would still be true that the statute authorized but the sale of 'what is now call- ed the "Old Jail Property" in the city of Reading, consisting of the old jail buildings and the appurtenances and a lot of ground, being the corner of North Fifth and Washing- ton streets, in the said city of Reading, and having 60 feet on said North Fifth Street. and 230 feet on Washington street.' It was held in Seebold v. Shitler, 34 Pa. St. 133, 137, that a deed from a private grantor to the county must be deemed to convey what the statute required. It would seem but a cor- ollary to this rule that a dc-ed from the coun- ty to a private grantee cannot convey more than the statute authorized. Upon the bill and answer it is clear that the respondents 196 ESTATES IN REAL PROPERTY. have no interest in or right over the eight feet wide strip of ground to the north of their tenement. "In the consideration of this case it has been assumed (nor was it questioned upon the argument) that the conveyances by plain- tiff's predecessors in title, during the continu- ance of the estate granted by the deed of December 1, 1772, included the reversion of this strip of land. The usual form of con- veyances in fee-simple contains such a grant, and it may be supposed that those forming the chain of plaintiff's title were not excep- tional in this respect. Yet the fact ought to be made to appear in this record, and for that purpose leave will be given to plaintiff to amend her bill by proper averments. That done, plaintiff will be entitled to the relief prayed for, and counsel will prepare and sub- mit the necessary decrees in accordance with, the views expressed in this opinion." J. H. Jacobs, H. P. Keiser, and J. H. Zwei- zig, for appellant. E. B. Wiegand, for ap- pellee. PER CURIAM. The opinion of the learn- ed judge of the court below is so full and sat- isfactory that we affirm the decree for the reasons there given by him. The decree is affirmed, and the appeal dismissed, at thfr costs of the appellant. REMAINDERS. 197 HUNT et al. v. HALL. (37 Me. 363.) Supreme Judicial Court of Maine. 18o3. Fox & Simmons, in support of exceptions. iMr. Barrows and W. P. Fessenden, contra. APPLETON, J. This is an action of the case in the nature of waste, and is brought un- der the provisions of Rev. St. c. 129, §§ 4, 5. Ephriam Hunt, under whom the plaintiffs de- rive title, by his last will gave a life estate in the premises in which waste is alleged to have been committed, to his wife, and after her de- cease, directed that equal division should be made among all his children, and the heirs of such as might then be decea.sed, of all his prop- erty, both real and personal. The tenant for life is still living, and the defendant represents her estate. The rights of the parties depend upon the na- ture of the estate which was devised by the will of Ephriam Hunt, which was in the words fol- lowing: "After the decease of my dear wife, my will is that my executor hereafter named cause an equal division to be made among all my children and the heirs of such as may then be deceased." The persons who are to take are not those who are living at the death of the tes- tator. The division is not then to take place. This is to be done at a subsequent and uncertain period. If the estate were to be construed as vesting at the death of the testator, an heir might convey by deed his share of the estate, and if he should decease before the termination of the life estate, leaving heirs, his conveyance would defeat the estate of such heirs.. This would be against the express provisions of the will, which provide that the estate should be divided '"among his children and the heirs of such as may then be deceased." By the terms of the will, the estate is not to vest till after the death of the widow, and then the division is to ensue. Till then there is a contingency as to the persons who may take the estate. "Contingent or executory remainders, (where- by no present interest passes,) are when the es- tate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious or uncertain event; so that the particu- lar estate may chance to be determined and the remainder never take effect." 2 Bl. Comm. 109. In Olney v. Hull, 21 Pick. 311, the words of the devise were almost identical with those in the case now under consideration, and the court held that until the death of the widow, it was uncertain, who would then be alive to take, and that therefore no estate vested in any one before that event happened. Where an es- tate is limited to two persons during their joint lives, remainder to the survivor of them in fee, such remainder is contingent, because it is un- certain which of them will survive. 2 CruLse. Dig. tit. 16, c. 1, § 21, '-Remainder." So where one devised lands to his daughter H. and her husband, for their respective lives, and after their death to the heirs of H., it was held that the remainder was contingent until the death of H., and then vested in the persons who were then heirs. Richardson v. Wheatland, 7 Mete. (Mass.) 169; Sisson v. Seabury, 1 Sumn. 23."), Fed. Cas. No. 12,913. It is obvious that by the terms of the will, the plaintiffs took a contingent and not a vested remainder. They are not within the provi- sions of Rev. St. c. 129, and consequently are not entitled to maintain this action. Exceptions overruled. Nonsuit confirmed. SHEPLEY, C. J., and TENNEY, J., con- curred. 198 ESTATES IN REAL PROPERTY. HOVEY Y. XELLIS et al. LIGHT V. SAME. (57 N. W. 255, 98 Mich. 374.) Supreme Court of Michigan. Jan. 9, 1894. Appeal from circuit court, Wayne county, in chancery; George Gartner, Judge. Two actions— one by Frank D. Hovey against Caroline NelUs and Mary M. Becli, and the other by Frank J. Licht against the same defendants— to quiet title to certain real estate. From a decree for plaintiff in each case, defendants appeal. Affirmed. Gray & Gray, (W. J. Stuart, of counsel,) for appellant Caroline Nellis. Bowen, Doug- las & Whiting, (W. J. Stuart, of counsel,) for appellant Mary M. Beck. O. E. Angstman, (Clark &, Pearl, of counsel,) for appellee. GRANT, J. The controversies in these two suits are identical, and are governed by the same facts. In this opinion we will refer only to the case of Hovey v. Nellis. The bUl is filed to quiet the title to outlot No. 4 of the L. Moran farm in the city of Detroit. This farm was a narrow strip of land a few hundred feet wide, and extending back from the Detroit river about three miles. It was divided into nine lots, numbered from 1 to 9, inclusive. Lot No. 9 lay furthest from the river, and included 60.53 acres. It was subsequently subdivided into 19 outlots, num- bered from 1 to 19, inclusive. The contro- versy in this case relates to outlot No. 4. Louis Moran, the owner of the entire farm, made his will in 1825, and died in 1829. He left, svu^viving, a widow and several children. He had made certain deeds of gift to his other children, aside from his son Louis, which he recognized in his will. All his real estate not deeded to his other children he devised as follows: (1) To his wife, Kather- ine, for life. (2) To his son Louis for life, charged with the support of one of the testa- tor's daughters. (3) To his daughter-in-law Maria, wife of his son Louis, during widow- hood. (4) "The remainder of my said real estate I give and devise to the children of my said son Louis Moran. and, if my said soil Louis shall die leaving no children, then to my heirs according to law." Complain- ant claims by pm-chase through mesne con- veyance from the devisees of Louis Moran, Sr. The defendants claim as heirs of said Louis Moran, Sr. It is conceded that the devise to Maria is void under the statute, but that it does not affect the validity of the remainder of the will. Louis Moran, Jr., had three children,— the defendant Caro- line Nellis, Octavia M. Sylvester, and James L. Moran. Mrs. Sylvester died in Novem- ber, 1861, leaving one child,— the defendant Mary M. Beck. James L. Moran is dead, but the date of his death is unknown. He Ijad one child, who died in May, ISSB- In 1845, Katherine INIoran, the widow, and Louis Moran, Jr., and his wife, conveyed by deed all their interest in the land to the three children of Louis Moran, who were then minors. One J. B. Vallee was duly appoint- ed their guardian. In 1847 the guardian fil- ed a petition in the circuit court for the coun- ty of Wayne in chancery, praying leave to sell then- real estate under the provisions of the statute. The proceedings taken there- under were regular, and on November 16, 1849, pm-suant to the decree of the com-t, a deed was duly executed by the guardian, con- veying the land in question to John A. Da mm and Joseph Grones, from whom complainant derives his title. Louis Moran, Jr., died June 20, 1809, leaving as heirs his two children, James L. Moran and Caroline Nelhs, and his gi-andchild Mary M. Beck. December 11, 1871, Caroline Nellis brought suit in eject- ment against Jacob Brown to recover posses- sion of "the undivided half of lot 4 of the Louis Moran farm." No proceeding has ever been taken in this suit other than to file dec- laration, and to file proof of alleged service thereof upon Brown. By mistake the land in the deed to Damm and Grones was erro- neously described as outlet 5 instead of outlet 4. It is conceded by the defendants that this was an error apparent upon the record, and corrects itself. Complainant claims that, at the time of the deed lo Damm and Grones, the title of this land was vested in the chil- dren of Lotus Moran, Jr., and that, the pro- ceeding in chancery to sell being regular, Damm and Grones became vested by the deed to them of the entire utle in fee sim- ple. He also claims that, if this be not so, still he has obt^^ason. In L'Etour- neau V." Henquenet, supra, it was expressly held that section 5.551, How. St., applied to contingent estates, and that, when alienated. if they are defeasible they are subject to the contingency by which they may be defeated. It follows that, when such estates are held by minors, they may be sold by their guard- ians under the direction of the com-t of chan- cery; otherwise, it would result that, how- ever important and necessary it might be to sell such estates in order to provide a proper support and education for their wards, these estates would be unavailable for that pur- pose. Our statute is largely copied from that of New York, and under the life provisions it has there been held that such estates could be sold and conveyed under the direction of the court. Dodge v. Stevens, 105 N. Y. 585, 12 N. E. 759; Jenkins v. Fahey, 73 N. Y. 355. The proceedings instituted to convey such interests being regular, the guardian's deed issued in pursuance thereof conveyed the entire interests of the children to the grantee. This disposition of the case renders it unnecessary to disc\iss or determine the questions of laches or title by adverse posses- sion. Decrees aitirmed, with costs. McGRATH, C. J., did not sit The other justices concurred. 200 ESTATES IN REAL PROPERTY. L'ETOURNEAU et al. v. HENQUENET et al. (50 N. W. 1077, 89 Mich. 428.) Supreme Court of Michigan. Dec. 23, 1891. Appeal from circuit court, Wayne county, in chancery; Cornelius J. Reilly, Judge. Suit in equity by Louis J. I'Etourneau and another, administrators, against August Hen- quenet and others, to remove a cloud from the title of real estate. Defendants had a decree, and complainants appeal. Reversed. Eldredge & Spier, for appellants. Barbour & Rexford, James J. Atkinson, William F. At- kinson, S. S. Babcock, T. M. Crocker, and Edwai'd E. Kane, for appellees. CHAMPLIN, C. J. The bill is filed to re- move a cloud upon title, and to obtain a con- struction of a vi^ill, which is quite fully set out in the opinion of my Brother Morse. But two questions are involved, and they relate to the construction to be given to the third and eighth clauses of the will— First. Does the fee of the real estate devised by the third clause vest in the devisees therein, named, upon the death of the testator? Second. If it did vest under the third clause, was it sub- ject to be divested under the eighth clause, in case of the death of either of the devisees before the termination of the precedent es- tate devised to the widow? The answer to these questions must depend upon the. inten- tion of the testator, either as expressed or inferred or assumed, in accordance with the well-established canons of construction. The fundamental rule of construction is that the intention of the testator must be gather- ed from a consideration of the whole instru- ment together, giving to each part or clause due weight, as expressing some idea of the testator in the disposition of his property. The first and dominant idea of the testator, as manifested in this will, is that his wife, Clotilde, shall have a life-estate in posses- sion of all his property, real ;md personal, with remainder over to his cli'l ren, as there- in set forth. The time of enjoyment of the remainder was postponed until the death of his wife. Section 5523 of Howell's Statutes enacts that "estates, as respects the time of their enjoyment, are divided into 'estates in possession' and 'estates in expectancy.' " Section 5525 enacts that "estates in expect- ancy are divided into^Fii-st, estates com- mencing at a future day, denominated 'fu- ture estates;' and, second, 'reversions,' " Sec- tion 5526 defines a "future estate" as "an estate limited to commence in possession at a future day, either without the intei-vention of a precedent estate, or the determination, by lapse of time or otherwise, of a precedent estate created at the same time." "When a future estate is dependent upon a precedent estate it may be termed a 'remainder,' and may be created and transferred by that name." Section 5527. We have here, then, under the third clause of this will, a vested future estate, within the very terms of the statute, devised to Sarah, Emily, and Eleanor. The question now arises, was it the inten- tion of the testator to make this vested fu- ture estate subject to be defeated by the con- tingency mentioned in the eighth clause? In the first place, it will be noticed that the habendum clause does not devise the estate absolutely to Sarah, Emily, and Eleanor, and their heirs and assigns, forever, unqualifiedly, but adds this significant qualification: "After the determination of the life-estate aforesaid." He made no such qualification in the ha- bendum to his devise to Josephine, nor in the habendum to his two sons, in the fifth clause. After disposing of the remainder to certain of his children named, excluding Margaret, the daughter of his deceased sou, Charle.s, he then makes such remainder subject to the fol- lowing contingency: "And whereas, one or more of my said children may not survive me, or my said wife, I hereby order, direct, and devise the share of such devisee or de- visees in such case to be equally divided among the remaining children herein named, and to their heirs, share and share alike." It is claimed that this clause is obscure, and open to two constructions. I do not so re- gard it. The testator was looking to the fu- ture. The question with him was, what pro- visions should be made with reference to these remainders in case either of his chil- dren named to whom he had devised the lands in remainder should die before he did, or before his wife, to whom he had granted I the life-estate in possession? If such con- i tingency should happen, he devises the share i of such devisee or devisees to the surviving j children named, to whom the share or shares i had been given, and to their heirs, share and ! share alike. The obvious sense and mean- : ing is that one or more of "my children may I die before my will can take effect by my death," and he provided for that contingency should it happen; and it also occurred to him that one or more might die before they could come into possession by the death of his wife, and in either case he provided what should be done with the share of such children nam- ed,— -it should go to the heirs of any such de- ceased child, share and sliare alike. He dis- inherited no child of his children named as devisees. He did not intend that Margaret should, in any event, share in the "worldly effects" left by him. He gave explicit rea- sons for that, and provided that, if she should survive him, she should be paid $10 by his executor out of his personal estate. Can it be supposed that, after making this declara- tion of his intent not to have Margaret share in his estate, he, by the next clause, admitted her to a share in the devises he had given to his children in case one or more died before he or his wife died? It seems to me that such a construction would be a forced one, and quite contrary to the intention expressed. Neither can I construe the language to mean that "my said wife may not survive REMAINDERS. 201 me." This construction destroys the whole scheme of the will. The will can have no force unless there be an intermediate estate in his widow, and the legacies would all lapse. He did not intend that any of his Ijroperty should be administered as intestate property. He disposed of the whole, and yet, to give this clause the consti-uction contended for by counsel for defendant, causes these shares to be administered the same as intes- tate estutes, and admits :Margaret to share in the i-eal estate,' contrary to the will of the testator. The remainder to his children was subject to the limitation of the eighth clause. The devise to his children created a vested estate, subject to be defeated by the subse- quent contingency stated in the eighth clause. As to the shares of any child or children dying before the death of Clotilde, they became a contingent remainder to the surviving children, and the heirs of any de- ceased child, at the termination of the pre- cedent estate of Clotilde. As to such the precedent estates in remainder terminated on the death of such child, and a contingent re- mainder was created in the surviving chil- e living at their death, it cannot be ascertained now who are to ALTERNATE REMAINDERS. 209 take the remainder." In Young v. Young, 97 N. C. 132, 2 S. E. 78, the court said: "The contingent remainders limited on tlie termination of the life estate are to such of her children as are then living, and to the then living issue of such as have died leaving issue; so it is impossible to tell who will be entitled when the life tenant dies." In Ex parte Miller, 90 N. C. 025, there was a devise of land to A. for life, with remain- der to such children as she may leave her surviving, and it was held that the children look contingent remainders. Without resort- ing to the text-books, these authorities abun- dantly show that the element of survivorship in our case fully characterizes the limitation as a contingent remainder. In view of the construction we have placed upon the language of the will and of the de- cisions of our OAvn court, we do not deem it necessary to review the many English and other cases cited by counsel. None of them are directly iu point, and, even if they were, we would not be inclined to depart from our own decisions, which, as we have already re- marked, are, in our opinion, well supported by principle as well as authority. If the will should read as we have construed it (and of this we think there can be but little doubt), it is clear that these remainders are contingent. The case most strongly pressed upon us on the argument is Ex parte Dodd, Phil. Eq. 97. The decision turned upon the construction placed upon the language of the will, under which it seems that the limita- tion was general; that is, to all of the chil- dren of the life tenant or the issue of such children. The element of survivorship as a condition to the vesting of the remainder was considered as absent, and it was held that the remainder was vested as to the children living, subject, of course, to open and let in after-born children, or the issue of such as should die before the life tenant. That this is the ratio decidendi of the case is apparent from the opinion of the court in Ir- vin V. Clark, 98 N. C. 437, 4 S. E. 30. The limitation there was "to Margaret Irvin and her husband, during tlieir natural lives, and to descend to the children of said Margaret equally." This was treated as a vested re- mainder, but the court was careful to say that: "If tlio devise had been to those chil- dren living at the death of their mother, there would have been a contingent, and not a vested, interest in either; for, until that event occmTed, it W'ould not be known who would take, and in such case the contingent interest could not be sold by a court of equity. But where the gift is general, not being confined to survivors when to take effect, it is other- wise, and, by representation, those who may afterwards come into being are controlled by the action of th(» court upon those whose in- tei'ests are vested, but whose possession is in the future. The distinction is pointed out by Battle, J., delivering the opinion in Ex parte Dodd." As we have seen, the remain- GATES,R.P.-14 ders to the sons being limited only to such of them as survived their mother, and Simpson .larrett Whitesides, one of the said sons, hav- ing died in 1874, before the death of the life tenant in 1887, it must follow that his chil- dren, the plaintiffs, acquired the interest in controversy as purchasers; and the only question which remains to be determined is whether they are precluded from asserting their title by the conveyance of their father, and the proceedings for partition imder which the land was sold, and purchased by one Davis, under whom the defendant claims. 2. If the view we have taken of this lim- itation is correct, it is hardly necessary to cite authority in support of his honor's rul- ing that the plaintiffs are not rebutted by the conveyance and warranty of their father in 1807. The case of Flynn v. "Williams, 1 Ired. 509, is not in point. It was there held that AN'here one having an estate of inheritance ia Ijossessiou sells the same with general war- ranty, his heirs are bound, whether the war- ranty be lineal or collateral, and whether they have assets or not. In the present ca.se no estate Avhatever vested in the ancestor,, and his children who take as purchasers un- der the will are therefore not bound by his w'arranty. Even had a life estate vested in him, his warranty would likewise have been. ineffectual by way of rebutter. Code, § 1334; Starnes v. Hill, supra. 3. Were the plaintiffs bound by the sale for partition? It appears that in 1870 John Kimberly (whp had purchased the interest of Simpson Jarrett Whitesides), together with the life tenant, Catherine, and the other con- tingent remainder-men, united in a petition for the sale of the land in pai-tition. Under a decree rendered in this proceeding the land was sold, and T. K. Davis became the pur- chaser. The defendant claims under the said Davis, and denies the claim of the plaintiffs that they are tenants in common with him to the extent of one-sixth interest in the said land. The life tenant, Catherine, having died in 1887, the plaintiffs' contention must be sus- tained, unless they are bound by the decree of sale. Neither these plaintiff's (if, indeed, they wei'e in existence at that time) nor their father were parties to the proceeding, but it is insisted that they were represented by others of the same class, or at least by the life tenant. It is plain that the other par- ties could not represent these plaintiffs as a part of the same class, and upon this point it is only necessary to refer to InMn v. Clark, supra, and the authorities therein cited. Eipially untenable is the position that these contingent remainder-men were represented by the life tenant. This would be a very radical departure from well-settled princi- ples, and has received no countenance from this court. In Overman v. Tate, 114 N. C. 571, 19 S.E.70G,we quoted with approval the language of Lord Hardwicke in Hopkins v. Hopkins, 1 Atk. 590, that "if there are ever so many contingent limitations of a trust, it 210 ESTATES IN REAL PROPERTY. is an established rule that it is sufficient to bring the tmstees before the court, together with him in whom the first remainder of in- heritance is vested; and all that may come after will be bound by the decree, though not in esse, unless there be fraud and collusion between the trustees and the first person iu whom the remainder of inheritance is vest- ed." In referring to the application of this principle in one or two jurisdictions where the first remainder was only for life, we stat- ed that we were not prepared to adopt such a view, and, a fortiori, would it be rejected in a case like the present, where the limita- tions are not in trust, but purely legal. Un- der the peculiar circumstances of the case re- ferred to we applied the principle declared by Lord Hardwicke, the fact that tlie limita- tions were in trust not having been adverted to in a previous ruling. The decision was not based upon the idea that the child of An- nie was of the same class as the issue of Caswell, but this was mentioned as a circum- stance tending to show that but little preju- dice would probably result by the application of the principle above stated, under the par- ticular limitations then before us. 4. Neither is there any force in the conten- tion that our case falls within the principle of England v. Garner, 90 N. C. 197, and other decisions in which the court has gone very far in sustaining judicial sales. It is not pretended that these plaintiffs, even if in esse, were represented by guardian, or any one claiming to be their attorney. Indeed, they are not mentioned as parties in any stage of the proceeding, nor is there any- thing in the decree which purports to bind their contingent interests. 5. As to tlie statute of limitations, it is only necessary to say that it did not begin to run against these plaintiffs until the death of the life tenant in 1887. Their rights accrued on- ly upon that event, and it is therefore clear that they are not barred. After a careful consideration of the elaborate brief of coun- sel, we have been unable to discover any er- ror in the rulings of his honor. Affirmed. RULE IX SHELLEY'S CASE. 211 HARDAGE et al. v. STROOPE. (24 S. W. 490, 58 Ark. 303.) Supreme Court of Arkansas. Doc. 23, 1S93. Appeal from circuit court, Clark county; John E. Bradloj', Special Judge. Suit by W. S. Stroope against Joseph A. Hardage and others. From a decree for plaintiff, defendants appeal. Reversed. U. M. & G. B. Rose and J. H. Crawford, for appellants. Murry & Kinsworthy, for appellee. BATTLE, J. J. L. Stroope and wife con- veyed the land in controversy to Tennessee M. Carroll, "to have and to hold the said land unto the said Tennessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then in that case to be divided and distributed according to the laws for descent and distribution in this state." After this, Mrs. Carroll conveyed it in trust to James M. Hardage to secure the payment of a debt. She had two children born to her after the conveyance by J. L. Stroope and wife, but they died in her lifetime. She died leaving no heirs of her body, but left her father, W. S. Stroope, surviving. After her death the land was sold under the deed of trust, and was purchased by Joseph A. Hardage. W. S. Stroope, the ap- pellee, now claims it as the heir of Mrs. Carroll, and Joseph A. Hardage, the appel- lant, claims it under his purchase. The rights of the parties depend on the legal effect of the following words contained in the deed to Mrs. Carroll: "To have and to hold the said land unto the said Ten- nessee M. Carroll for and during her natural life, and then to the heirs of her body, in fee simple; and if, at her death, there are no heirs of her body to take the said land, then in that case to be divided and distribut- ed according to the laws for descent and dis- tribution in this state." Appellee contends that Mrs. Carroll only took a life estate in the land under this clause, and that he is entitled to the remainder, she having left no descendants. On the other hand, the appel- lant contends that the remainder in fee vested in the children, and, when they died, Mrs. Carroll inherited it, and the whole estate in the land became vested in her; and that, if this contention be not true, the deed to Mrs. Carroll comes within the rule in Shelley's Case, and vested in her the estate in fee simple; and that in either event he is entitled to the land. It is obvious that the deed to Mrs. Carroll created in her no estate in tail. Her gran- tor reserved no estate or interest, nor grant- ed any remainder, after a certain line of heirs shall become extinct, but conveyed the land to her to hold during her life, and then to the heirs of her body in fee simple. No remainder vested in her children. It was to be inherited by the heirs of her body, and they were hor descendants who survived her and wore capable of inheriting at the time of her death. They might have been grandchildren. They were not the children, as they died in the lifetime of their mother. The effect of the deed, as explained by the habendum, in the absence of the rule in Shelley's Case, was to convey the land to Mrs. Carroll for her life, and then to her lineal heirs, and, in default thereof, to her collateral heirs. As there can be collateral heirs only in the absence of the lineal, the deed conveyed the land to Mrs. Carroll, in legal phraseology, for her life, and after her death to her heirs. Two questions now confront us: (1) Does the rule in Shelley's Case obtain in this state? (2) And, if so, does the deed in question fall within it? 1. Is it -in force in this state? Section 56G of Mansfield's Digest provides: "The common law of England, so far as the same is applicable and of a general nature and all statutes of the British parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the First that are applicable to our own form of government of a general nature and not local to that kingdom, and not incon- sistent with the constitution and laws of the United States or the constitution and laws of this state, shall be the rule of decision in this state unless altered or repealed by the general assembly of this state." The rule in Shelley's Case, as stated by Mr. Preston, which Chancellor Kent says is \ full and accurate, is as follows: "When a person takes an estate of freehold, legally j or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of an- other estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession from generation to gen- eration, the limitation to the heirs entitles ! the ancestor to the whole estate." Its origin is enveloped in the mists of antiquity. It was laid down in Shelley's Case in the twenty- third year of the reign of Queen .Elizabeth, upon the authority of a number of cases in the year books. Sir William Blackstone. in his opinion in Perrin v. Blake, 1 W. Bl. 672, cites a case in IS Edw. II. as estab- lishing the same rule. The earliest intelli- gible case on the subject, however, is that of Provost of Beverly, 3 Y. B. 9, which arose in the reign of Edward III., and substantial- ly declared the rule as laid down in Shelley's Case. Various reasons have been assigned for the origin of the rule. Chancellor Kent, up- on this subject, says: "The judges in l*er- rin V. Blake, supra, imputed the origin of it to principles and pi)licy deduced from feudal : tenure, and that opinion has been generally followed in all the succeeding discussions. The feudal poUcy undoubtedly favored de- 212 ESTATES IN REAL mOPERTY. scents as mucli as possible. There were feudal burdens which attached to the heir when he took as heir by descent, from which he would have been exempted if he took the estate in the character of a purchaser. An estate of freehold in the ancestor attracted to him the estate imported by the limitation to his heirs; and it was deemed a fraud up- on the feudal fruits and incidents of ward- ship, marriage, and relief to give the prop- erty to the ancestor for his life only, and yet extend the enjoyment of it to his heirs, so as to enable them to take as purchasers, in the same mannei*, and to the same ex- tent, precisely, as if they took by heretlitary succession. The policy of the law will not permit this, and it accordingly gave the whole estate to the ancestor, so as to make it de- scendible from him in the regular line of de- scent. Mr. Justice Blackstone, iii his argu- ment in the exchequer chamber in Perrin v. Blake, does not admit that the rule took its rise merely from feudal principles, and lie says he never met with a trace of any such suggestion in auy feudal writer. He im- putes its origin, gi'owth, and establishment to the aversion that The common law had to the inheritance being in abeyance; and it was always deemed by the ancient law to be in abeyance dm-ing the pendency of a contin- gent remainder in fee or in tail. Another foundation of the rule, as he observes, was the desire to facilitate the alienation of land, and to throw it into the track of commerce one generation sooner, by vesting the inher- itance in the ancestor, and thereby giving him the power of disposition. Mr. Har- gi'ave, in his observations concerning the rule in Shelley's Case, considers the principle of it to rest on very enlarged foundations; and, though one object of it might be to prevent frauds upon the feudal law, another and a greater one was to preserve the marked dis- tinctions between descent and purchase, and prevent title by descent from being stripped of its proper incidents, and disguised with the qualities and properties of a purchase. It would, by that invention, become a com- pound of descent and purchase,— an amphib- ious species of inheritance, — or a freehold with a perpetual succession to heirs, with- out the other properties of inheritance. In Doe v. Laming, 2 Burrows, 1100, Lord Mans- field considered the maxim to have been orig- inally introducetl, not only to save to the lord the fruits of his tenure, but likewise for the sake of specialty creditors. Had the limitation been construed a contingent re- mainder, the ancestor might have destroyed it for his own benefit; and, if he did not, the lord would have lost the finiits of his tenure, and the specialty creditors their debts." But. whatever may have been the cause of its origin, its effect has been "to faciUtate the alienation" of land "by vesting the in- heritance in the ancestor, instead of allow- ing it to remain in abeyance un+il his de- cease." Its operation in this respect has commended it to the favorable consideration of the most learned and able men of Great Britain and the United States, and doubt- less contributed to its preservation and con- tinuance, and enabled it to survive the inno- vation of legislation and the changes and fluctuations of centuries. Based upon the broad principles of public policy and com- mercial convenience, which abhor the lockiiig up and rendering inalienable any class of property, it has ever been in harmony with the genius of the institutions of our country, and with the liberal and commercial spirit of the age. Hence, it has been recognized and enforced as a part of the common law of nearly every state where it has not been re- pealed by statute. Starnes v. Hill, (N. C.> IG S. E. 1011; Baker v. Scott, 62 111. 88; Hagoman v. Plageman, 129 111. 1G4, 21 N. E. 814; Doeblor's Appeal. 64 Pa. St. 9; Klepp- ner v. Laverty, 70 Pa. St. 72; Polk v. Ear:s» 9 Yerg. 209; Crockett v. Robinson, 46 N. IL 4.j4; 4 Kent, Comm. marg. pp. 229-233; 2 Washb. Real Prop. (.3th Ed.) pp. Gm-UoI. The rule has never been chan.a'ed in this state except in one respect,— estates tail have been abolished. Section 643 of Mansfield's Digest provides tliat, whenever any one would become seised at common law "in fee tail of any lands or tenements by virtue of a devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail. sh.Ul be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, gi-ant or conveyance." To this extent it has been repealetl; in other re- spects it remains in full force in this state; and it was so held in I'atty v. Goolsby, 51 Ark. 71, 9 S. W. 846. 2.' Does this case come within the rule? "Whenever there is a limitation to a man which, if it stood alone, would convey to him a particular estate of freehold, followed by a limitation to his heirs * * * (or equiva- lent expressions) either immediately, or aft- er the interposition of one or more particular estates, the apparent gift to the heirs, * * *" according to the rule in Shelley's Case, "is to be construed as a limitation of the estate of the ancestor, and not as a gift to his heirs." The theory was that, in cases which come within the rule, the heirs take by descent from the ancestor, and they cannot do so imless "the whole estate is united, and vests as an executed estate of inheritance in the ancestor." This theory was based upon the fact that "the ancestor was the sole as- certained and original attracting object, — the groundwork of the grantor's or testator's bounty,"— and upon the presumption, arising from the fact, that the grantor or testator, as the case may be, "meant the person who should take after the ancestor shoiild be any person indiscriminately who should answer the description of heirs * * * of the an- cestor, and be entitled only in respect to such description," and that the estate devised or RULE IX SHELLETS CASE. 213 conveyed should vest in them in that char- acter only. "In order to effectuate this in- tent, and secure the succession to its intended objects," the nile rejects, as inconsistent and incompatible with this primary or paramount intent, "any other intent than that the ances- tor should take an estate for life only, and the heirs should take by purchase," and vests the estate of inheritance in the ancestor. This was considered necessary to accomplish the primary object of the grantor or ancestor. 2 Fearne, Rem. pp. 21G -220. "Hargrave has justly observed," says Fearne on Remainders, "that the rule cannot be treated as a medium for discoverini; the testator's intention, but that the ordinary rules for the interpretation of deeds shotild be tirst resorted to; and that, when it is once settled that the donor or testator has nsed words of inheritance according to their legal import,— has applied them intentionally to comprise the whole line of heirs to the ten- ant for life; has made him the termintis by reference to whom the succession is to be regulated,— then the rule applies. But the rule is a means for effectuating the testator's primary and paramount intention, when pre- viously discovered by the ordinary rtiles of interpretation,— a means of accomplishing that intention to comprise, by the use of the word 'heirs,' the whole line of heirs to the tenant for life, and to make him the ter- minus, by reference to whom the succession is to be regulated; and the way in which the rule operates, as a means of doing this, is by construing the word 'heirs' as a word of limitation, or, in other words, by construing the limitation to the heirs, general or special, as if it were a limitation to the ancestor him- self and his heirs, general or special." 2 Fearne, Rem. p. 221. In Doebler's Appeal, 64 Pa. St. 9, Judge Sharswood, in discussing the rule in Shelley's Case, said: "If the intention is ascertained that the heirs are to take qua heirs, they must take by descent, and the inheritance vest in the ancestor. The rule in Shelley's Case is never a means of discovering the intention. I^ is applicable only after that has been discovered. It is then an unbend- ing rule of law, originally springing from the principle of the feudal system; and, though the original reason of it — the preservation of the rights of the lord to his relief, primer seisin, wardship, and marriage — has passed away, it is still maintained as a part of the system of real property which is based on feudalism, and as a rule of policy. It de- clares inexorably that, where the ancestor takes a preceding freehold by the same in- strument, a remainder shall not be limited to the heirs, qua heirs, as piu'chasers. If given as an immediate remainder 'after the free- hold, it shall vest as an executed estate of inheritance in the ancestor; if immediately after some other interposed estate, then it shall vest in him as a remainder. Wherever this is so it is not possible for the testator to prevent this legal cunsequeuce by any declara- tion, no matter how plain, of a contrary in- tention. This is a subordinate intent which is inconsistent with, and must therefore be sacrificed to, the paramount one. Even if he expressly provides that the rule shall not ap- ply that the ancestor shall be tenant for life only, and impeachable for waste, if he in- terpose an estate in trustees to support con- tingent remainders, or, as in this will, declare in so many words that he shall in no wise sell or alienate, as it is intended that he shall have a life interest only, it will be all in- effectual to prevent the operation of the rule. No one can create what is in the intend- ment of the law an estate in fee, and deprive the tenant of those essential rights and priv- ileges which the law annexes to it. He can- not make a new estate unknown to the law." "The policy of the rule," saj-s Chancellor Kent, "was that no person should be permit- ted to raise in another an estate which was essentially an estate of inheritance, and at the same time make the heirs of that person purchasers." 4 Kent, Comm. 210. At common law the word "heirs" was nec- essary to convey a fee simple by deed. Xo eqtiivalent words would answer the purpose. If the conveyance was not made to a man and his heirs, the grantee only took a life estate, notAvithstanding the estate was limit- ed by such phrases as "to A. forever," or "to A. and his successors," and the like. An ex- press direction that the grantee should have the fee simple in the land wotild not have supplied the place of the word "heirs." But in this state the question as to what estate a deed to land conveys is determined by the intent of the parties, as ascertained from the contents of the deed and the power of the grantor to convey. When construed in this manner, it is obvious that the intention of the deed in question was to convey the land in controversy to Mrs. Carroll for life, then to her lineal heirs, and, in default thereof, to her collateral heirs; in other words, to Mrs. Carroll for life, and, after her decease, to her heirs. The intention that the heirs were to take only in the capacity of heii-s is manifest. The deed comes within the rule in Shelley's Case. The estate of inheritance vested in Mrs. CaiToll, and she became seised of the land in fee simple. 2 Washb. Real Prop. (5th Ed.) p. 653. "As a conseqtience from the foregoing prin- ciples, whoever has a freehold which, by the terms of the liiuitation, is to go to his heirs, may alien the estate, subject only to such lim- itation as may have been created between his freehold and the inheritance limited to his heirs." 2 Washb. Real Prop. 651. It follows, then, that ISIrs. Carroll had the right to convey the fee in the land in trust to secure the payment of her debts, and that a sale of such estate under the deed, and in conformity with law, was valid. The decree of the court below is reversed, and the cause is remanded for proceedings consistent with this opinion. 214 ESTATES IN REAL TROPERTY. EARNHART t. EARNHART et al. (26 N. E. 895, 127 Ind. 397.) Supreme Court of Indiaca. March 11, 1891. Appeal from circuit court, Noble county; Joseph W. Adair, Judge. L. W. Welker, for appellant. Ziiuraer- nian & Prickett, for appellees. OLDS, C.J. JohnEarnhart died testate. By item 3 of his last will and testament he gave to his granddaughter Harriet Cook, tlie only child of his deceased daugh- ter, iSusanah, $500, to be paid within one year after his death, or within one year after the death of his wife, if she survived him. It is specifically stated in said item that said legacy shall be paid by devisees to said will other than his wife, to- wit, "Nelson, James, Lewis, Thomas, and Will- iam Eavnhart. Jane Wolf and Ellen Wolf, in equal shares; the share of each to be a charge upon the lands hereby devised to him or her, respectively." Item 10 of the will is as follows: "I give and devise to my son William Earnhart for and during the term of his natural life, subject to the life-estate of my said wife therein, the fol- lowing described real estate in Noble county, Indiana, to-wit: The nf)rth half of the north-west quarter, and the west half of thenorth-vvestquarterof thenorth- east quarter, of section thirty-four, (34,) in township thirty-four (34) north, range nine (9) east. At the death of said William^ Earnhart I give and devise said lands in fee-simple to the persons who would have inherited the same from the said William Earnhart had he owned the same in fee- simple at the time of his death ; the same to go to said persons in the same manner and in the same proportions as though said William Earnhart had owned the same in fee-simple at the time of his death ; but the provisions of this item should only vest in the said William a life-estate in said lands, and nothing more." The appellant brings this action, setting out a coi)y of the will, and alleging that he owns the fee simple title to the land de- scribed in item 10 of the will; and asking that tiie will be so construed as to give to him the fee- simple title to said land, and that his titlebe quieted to the same; mak- ing the other devisees and the executor parties defendant, alleging that they claim some interest in said land adverse to the appellants. The appellees demuri'ed to the complaint for want of facts, which was sustained, exceptions reserved, and this appeal is prosecuted, assigning such ruling as error. It is contended that item 10 of the will is governed by the rule in Shelley's Case, and that it gives to Will- iam Earnhart a fee-simple title to the land. It is settled that the rule in Shel- ley's Case is recognized as law and a rule of property in tnis state, but we do not think it applicable to the item of the will under consideration. The rule does not apply where it unequivocally appears that the persons who are to take are not to take as heirs of the grantee or devisee. In this case it is clearly and distinctly ex- pressed, so that it uneaanel title in fee, contrary to the terms of the de- vise, and we are asked to determine whe h r this was sufficient evidence or renunciaiijn to go to the jury. In Doe v. Smyth. <; Barn. & C. 112, the court said that a devisee can- not be compelled to accept the devised in- terest, but may by some mode renonn:'e and disclaim it. "* * * And it is not nccessarj^ in the present case to decide whether such renunciation and disclaimer may be by pir 1, because, in whatever form they are mad(>, we think they must be a clear and uneiiuivrcal disclaimer of any estate in the land. In this ca.se the disclaimer is not of any estate in the land, but only of benefit imder the will, ac- companied in every instance by an asserJon of a right to the land by a higlier and b t er title. This proceeded on a mistake of wliic'a the devisee (the lessor of the plaintiff), though slowl.v and reluctantly, was at la.st convinced. No case similar to this was cited, or has be n 218 ESTATES IN REAL PROPERTY. found, and we therefore think the lessor of the plaintiff is not precluded from acting un- der her improved judgmeut, and taking the land as devisee vmder the will." Here the devisee was denying renunciation, and her contention was sustained. Whatever we may think of the holding that a disjlaimer of a devise is not good unless it goes to the extent of disclaiming any interest in the land, al- though such claim may be based upon other and better title, it must be conceded that the case turned upon that, or that, at all events, it did not decide that a disclaimer must be by deed. This case was deci.Ied in 1828. The case of Bryan v. Hyrc, 1 Rob. (Va.) 102, decided in 1842, affirmed a case where the trial judge had instructed the jury that a disclaimer of a devise must be in writing. This is based upon the rule laid down in Coke up an Littleton,— that where a devisee enters the freehold is in him before he enters, and in that case the heir takes -nothing. Co. Litt. Ilia. The case of Townson v. Ti kcll was cited, but it does not decide the point, for there the disclaimer was in writing. The de- cision really rests upon Doe v. Smyth, 6 Bam. & C. 112, which, as has been sho vn, did not pass upon the question. Indeed, thit case (i. e. Doe v. Smyth) seems to have over- looked the earlier case of Townson v. Tickell, 3 Barn. & Aid. 31, decided in 1819. The Vir- ginia case mentions it to disapprove tlie op'n- ion of Holroyd, J., where he says: "I think that an estate cannot be forced on a man. A devise, however, being prima facie for the devisee's benefit, he is supposi d to assent to it, until he does some act to show his dissent. The law presumes that he will assent, until the contrary be proved. When the contrary, however, is proved, it shows that he never did assent to the devise, and coiisequently that the estate never was in him. I cannot think that it is necessary for a party to go through the form of disclaiming in a couvt of record, nor that he should be at the troiib e or expense of executing a deed to show that he did not assent to the devise. Unless some strong authority were shown to that effect, I cannot think that the law requires either of these forms. I am confirmed in tl;at opinion by the case of Bonifaut v. Greenfield, Cro. Eliz. 80." In that case the renun iition was by deed, and it was claimed that was insuf- ficient, and that a disclaimer in a court of record was necessary. All of the judg?s agreed that the disclaimer by deed was g od, and the dictum contained in the opinion of Holroyd was apparently approved by the other justices. So far, then, we have dictum against dictum, in the English cases, Mith the Virginia case holding a writing necessary. The question was up in ^lassachusetts in the same year that Doe v. Smyth was decided (i. e. 182(3). Stebbins v. I^throp. 4 Pick. 43. It was there held that nothing short of an express renunciation could be takc'n notice of by a court of probate. The court said: "Noth- ing appears amounting to a renunciation. But, if this were doubtful, the question is n t to be settled in the court of probate. The re- spondent has a right to be heard on this point in a court of law, and he cannot be so heard if the grant of probate should be revoked. The most that appears at present is an intention to renounce, and even this is not very clear. It is possible that the intenton was merely to impede the creditors in the col- lection of their debts. Until the legatees shall actually renounce their legaces, their assent to the provisions of the will whi h are apparently beneficial to them will be pre- sumed. Townson v. Tickell, 3 Barn. & Aid. 31. If they should persist in the intention to renounce the estate, the prbbate of the will will not restrain them. And then the ques- tion wiU be fairly raised whether this can be done to the prejudice of creditors. This being the light in which we view this point, it will not be necessary to determine whether the acts of the devisees will in law amount to a renunciation. It is sufficient to justify the proceedings of the judge of probate in tliis particular that these acts, taken together,— es- pecially the acts of Miner Stebbins,— are equivocal, and that nothing short of an ex- press renunciation can be taken notice of in a court of probate. And there seems no good reason why the fact should not be veri- fied by the record, when the parties are pres- ent and may renounce if they are so in- clined. No doubt a devisee may disclaim by deed the estate devised, as was decided in the case of Townson v. Tickell, 3 Barn. & Aid. 31; and perhaps he may disclaim with- out being subjected to the expense and trouble of executing a deed, as Holroyd, J.. seemed to think. But it does not follow that a court of probate shall receive evidence of such disclaimer, and most certainly not when the evidence relates to acts of a doubtful bearing. In the case of Proctor v. Atkyn's, 1 Mass. 321, it was decided that a court of probate could not determine upon a claim set up by deed, because it was determinable ex- clusively at the common law. The same rea- son applies with force to the supposed dis- claimer in this case." In Webster v. Oilman,, 1 Story, 499, Fed. Cis. No. 17,335, the follow- ing appears: "It may be even doubtful wliether, under our laws, any renunciation or disclaimer not by deed or matter of record would be an extinguishment of the right of the devisee. But at all events it should be evidenced by some solemn act or acknowl- edgment in writing, or by some open and positive act of renunciation or disclaimer which will prevent all future cavil, and op- erate, in point of evidence, as a quasi estop- pel." Here, again, the question was not de- cided. The question was before the United States circuit court again in Ex parte Fuller, 2 Story, 330, Fed. Cas. No. 5,147, and again it was not passed upon. The court said: "As to the oxher point, there is no doubt that the devisee must consent, otherwise the title does not vest in him. But where the estate- RULE IX SHELLEY'S CASE. 219 is devised absolutely, and without any trust or incumbrances, the law will presume it to be accepted by the devisee, because it is for his benefit; and some solemn, notorious act is required to establish his renunciation or disclaimer of it. Until that is done, stabit presumptio pro veritate. That is sufficiently shown by the case of Townson v. Ticicell, 3 Barn. & Aid. 31, cited at the bar, and the still later case of Doe v. Smyth, 6 Barn. & C. 112. Brown v. Wood, 17 Mass. 68, and Ward V. Fuller, 15 Pick. 185, manifestly pro- ceeded upon the same foundation. Now, in the present case, there is no pretense to say that Ross has ever renounced or disclaimed the estate devised to him. The statement of fact is that he has done no act acccptin.:;^: or declining the devise. If so, then the pre- sumption of law is that he has, by implica- tion, accepted it, since it gives him an uncon- ditional fee." The case of Ward v. Fuller. 15 Pick. 185, went no further than to hold that a devisee before entry had a sufficient seisin to maintain a writ of right. In 4 Kent, Comm. p. 534, it is said that: "An estate vests, under a devise, on the death of tlie testator, before entry. But a devisee is not bound to accept of a devise to him nolens volens, and he may renounce the gift, by which act the estate will descend to the heir, or pass in some other direction under the will. The disclaimer and renunciation must be by some unequivocal act, i\m\ it is left undecided whether a verbal disclaimer will be sufficient, and some judges have held that it may be by a verbal renunciation. Perhaps the case will be governed by cir- cumstances." See, al-so. Perry v. Hale, 44 N. H. 304. From the foregoing, we conclude that an ac- ceptance should be presumed in this case, which presumption may be overthrown by acts inconsistent with acceptance. The only evidence here is the purchase of tax titles, and procuring and recording tax deeds of the premises, and the conveyance, by full war- ranty deed, within two years after Betsey Casler's death, of the premises devised. The inference is strong that Henry Casler's design in obtaining the deeds was to acquire a bet- ter title than that conveyed by the will, either because of some inherent defect in the latter, or from a desire to obtain the fee. There is perhaps room for the suspicion that his mother, Betsey Casler, permitted this, as the plaintiff's counsel contends, or tliat Henry accomplished it without her knowledge, but in either case it tended to show a desire to obtain a better title than he then had. It does not necessarily follow that he was will- ing to disclaim a valid life estate for his chances under a tax title which, if invalid, miglit compel him to share his life estate with his brothers and sisters. Again, the testi- mony of the witness Bear that he found the land advertised in the paper, and bid it in, tends to show that the sale was not the re- sult of collusion or fraud, and that Henry easier obtained the tax title from Bear to protect his mother as well as himself. This testimony should not have been stricken out upon plaintiff's motion. If the son, Henry Casler, never accepted the devise, it is an end of the case upon this record, entitling the defendants to a veidict, inasmuch as the tax deeds are prima facie valid, and conveyed the fee. But, if Henry Casler accepted the devise, it becomes necessary to inquire whether he can set up his tax deeds against the remaiuder- men. This is said to depend upon the ques- tion whether he owed a duty to them to pay the taxes, or preserve the estate for them, analogous to the duty which his mother owed to him and them. We have found no case upon all fours with this, and we doubt if it can be said that the law imposes any such duty upon the second life tenant, during the tenancy of his predecessor, but we think it does not necessarily turn upon a duty to pay. While he was under no obligation to preserve the estate, if he chose to do so that he might reap the benefit of the devise, he should be content to look to the occupant, whose duty it was to pay them, for reiuilnirsement, or, if not, he could expect no more than contri- bution from the other remainder-men, to whose benefit, as well as his own, such pay- ment inured. It would be inequitable to per- mit him to claim title under such circum- stances, where he took under the same will that gave him an estate, thereby recognizing their right. Good faith towards the testator should forbid such an attempt to defeat his purpose. Were this claim to be sustained, it would make it easy for two life tenants, by collusion, to defeat the remainder-men. under circumstances like these. It may be said that this could be done by the mere disclaim- er, but this is a mistake. See How. Ann. St. . § 5548. We are cited to Blackwood v. Van Vleit, 30 Mich. 118, and Sands v. Davis, 40 Mich. 14, to sustain the claim that Henry Cas- ler was under no disability as a claimant of the fee under the tax deed. The former was a case where one who went into possession before the tax levy was held not to be pre- cluded from making and relying upon a pur- chase of land at tax sale. In Sands v. Davis the question arose between tenants in com- mon. In that case one bought a tax title that was outstanding at the time of the pur- chase of his interest in the premises, and therefore Avhich he owed no duty, to the state or his co-tenants, to pay, and it was held that he might set up such title against his co-ten- ants. Both of these cases recognize the propo- sition that one asserting a tax title may be un- der a disability, , owing to his relations to others claiming interests in the land. In Blackwood v. Van Vleit it is said. "It was not claimeil in the case, so far as the record shows, that there were contract or other re- lations between Blackwood and Van Vleit that would preclude the latter from buying the former's land for delinquent taxes." In 220 ESTATES IN REAL PROPERTY. Sands v. Davis, Campbell, C. J., uses the fol- lowing language: "If Sands had gone into possession by the aid of the other tenants, or in recognition of their rights, he might in that way, perhaps, have incurred some duties towards them. But he went in as a stran- ger to their claims, under a claim which de- nied their existence or validity. He became liable to an action of ejectment the moment he assumed possession. We see, therefore, no reason why he could not then or there- after, as well as he could have done it be- fore, purchase a title which was at that time adverse to the holders of the whole origi- nal title. The case of Blackwood v. Van Vleit, 30 Mich. 118, holds, in conformity with these views, that there can be no estoppel against purchasing tax titles, except against one w'ho had a duty to pay the tax or remove the burden." There is abundant authority that a tenant in common, whose duty it is to pay a portion of the taxes, .cannot acquire a title, as against his co-tenant, by purchase at a tax sale for the entire tax. Dubois v. Campau, 24 Mich. 3G0, and notes. Wood, Landl. & Ten. § 54, says, "In the absence of any reservation of rent, or other provision in the lease or conveyance providing there- for, a tenant for life, as between himself and the reversioner, is bound to pay the taxes as- sessed upon the premises; and if he fails to do so, and they are sold therefor, and the ten- ant becomes the purchaser, he cannot claim a title in fee against the reversioner." See, also. Cairns v. Chabert, 3 Edw. Ch. 312; Smith V. Blindbury, 06 Mich. 323, 33 N. W. 391; Patrick v. Sherwood. 4 Blatchf.- 112, Fed. Cas. No. 10,804; McMillan v. Robbins, .5 Ohio, 28; Pike v. Wassell, 94 U. S. 711; Sidenberg v. Ely, 90 N. Y. 257; Varney v. Stevens, 22 Me. 331; Prettyman v. Walston, 34 111. 175; Hitner v. Ege, 23 Pa. St. 305. Some of these cases hold tliat where the life tenant is compelled to make permanent bet- terments, or to pay off incumbrances to pre- vent a forfeiture, he may enforce contribution against the remainder-men, to the extent of their interest in the land. Cairns v. Chabei-t, 3 Edw. Ch. 312; Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4,972; Daviess v. Myers, 13 B. Mon. 512; Bell v. New York, 10 Paige, 49; Estabrook v. Ilapgood, 10 Mass. 313; At- kins V. Kron, 8 Ired. Eq. 1. Thus it appears that while the life tenant in possession may be under no legal obligation to pay an incum- brance, and therefore owes no duty to the i-emainder-man, if, to prevent a forfeiture of his estate, he does pay it, he has a claim against the interest of the remainder-man. Either party may buy in the incumbrance, but cannot hold it to the exclusion of the other, who is willing to cofttribute his share of the amount paid for the purchase. See cases cited, and Insurance Co. v. Bulte, 45 Mich. 122, 7 N. W. 707; Whitney v. Salter (Minn.) 30 N. W. 755. In this case it was not clear that any portion of the incumbrance was chargeable to the life tenant, yet it was said that he should be regarded as having made the purchase for the joint benefit of himself and the reversioner or remainder- man,— citing 1 Washb. Real Prop. 96; Biss. Est. 26; Law Lib. 248; Cooley, Tax'n (2d Ed.) 500-509. We see no reason why this doctrine should not apply equally to the devisee of a life estate not in possession, and can see no difference in principle. And we think the rule as applicable to taxes as to any other incumbrance. Therefore we think the right to assert these deeds against the remainder-men hinges on the acceptance or renunciation by Henry Casler of the devise. Counsel for defendants attack plaintiff's ti- tle, claiming that the quitclaim deeds given by the heirs of Henry Casler before his death conveyed no interest, for the reason that there "are no heirs to the living." But the statute is a sufficient answer. The remain- der was a future estate, which the statute (How. Ann. St. § 5551) declares to be de- scendible, devisable, and alienable in the same manner as estates in possession. Counsel also contend that the devise is void imder How. Ann. St. § 5531, which reads as follows: "The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section." We think that statute has no application, for the power of alienation was suspended for the period of two lives in being only, viz. Betsey Casler and Henry Casler. See, also, section 5535. Plaintiff's title is also attacked upon the groimd of want of jurisdiction in the probate court to admit the will to probate, but we think this question is foreclosed by the stipu- lation that said will was duly probated, etc.- There is a further question in the case which is discussed by counsel for the defend- ants. There is nothing to show that the will was ever recorded, while the tax deeds were promptly placed upon record. The latter fact has significance upon the subject of renunci- ation, because, if Henry Casler was claiming under the will, there was no occasion for his recording such deeds. Again, the defendants are not shown to have had any actual or constructive notice of the will, or the rights of any of the parties under it. He was there- fore apparently a bona fide purchaser, rely- ing upon the record of the tax deeds, which was the only title appearing of record, in Henry Casler. As foreshadowed, our conclusion is that it was a question for the jury to defermine, whether Henry Casler accepted or renounced the devise, and that it was error to direct a verdict for the plaintiff. The judgment will be reversed, and a new trial ordered. LONG, C. J., and GRANT and MOORE. JJ., concurred. MONTGOMERY, J,, concurred in the result. EXECUTORY DEVISES. 221 HOrivINS V. HOrKIXS. (.Cas. t. Talb. 44.) Court of Chancery, 1734. The testator, Mr. HoiAins, by his will, de- vises his real estate to trustees aud their heirs, to the use of them and their heirs, in trust for Samuel Ilupkius (the plaintiff's ouly sou, which Ldaiutiff is heir at law to the testator) for life; and from aud after his decease, in trust for the first aud every other son of the body of the said Samuel, lawfully to be begotten, aud the heirs male of the body of every such son; and for want of such issue, in case the said John Hopkins, the plaintiff, should have any other son or sons of his body lawfully begotten, then iu trust for all aud every such son and sons re- spectively and successively, for their respec- tive lives, with the like remainders to their sev- eral sons, with the like remainders to the heirs male of the body of every such son, as before limited to the issue male of the said Samuel Hopkins; and for want of such issue, in trust for the first and every other sou of the body of Sarah, the said John Hopkins' eldest daugliler, lawfully to be begotten, with like reuiaiuders to the sons of John Hopkins' other daughters; and for want of such issue, then in trust for the first and every other son of his cousin Anne Dare (wife of Francis Dare) lawfully to be be- gotten, with like remainders to the heirs male of the body of every such son of the said Anne Dare; and for default of such issue, then in trust for his own right heirs forever. Then come two provisos; the one whereby every person that should come into possession of his estate, was to take his name, and bear his arms; the other is iu these words: "Provided also, and it is my will, that none of the persons, to whom the said estates are hereby limited for life, shall be in the actual possession thereof, and in the enjoyment of the rents and profits, or of any greater or other part thereof, than as hereinafter is mentioned, until he or they .shall have respectively attained his or their ages of twenty-one years; and in the mean time, and until his or their attaining to such age, my trustees and their heirs and executors shall make such allowances thereout, for the handsome and liberal maintenance and educa- tion of such person and persons respectively, as they shall think suitable and agreeable to his estate and fortune; and it is my will, that the overplus of the said rents and profits, over and above the annual allowances, or such part there- of as shall remain after all my debts, legacies, and funeral expenses shall be first paid (with the payment whereof I have charged my real estate, in case my personal estate shall not be sufficient for those purposes), do go to such per- sons as shall first be entitled unto, or come into the actual possession of my said real estate, ac- cording to this my will." Samuel Hopkins died in the testator's life- time, 'without issue; and some time after, the testator died without any alteration made of his will; nor had John Hopkins any other son; nor were any of the other remaindermen in esse at the testator's death, except Dare, son of Anne Dare. The first question was, whether by Samuel's death iu the testator's lifetime, the several lim- itations between him and Dare were not be- come void; there being no particular estate to support them as remainders, by reason of Sam- uel's death in the testator's lifetime, who was to take the first estate; nor nobody capable of taking at the testator's death but the son of Anne Dare, who thereby claimed the whole in- terest presently? Or whether these intermedi- ate limitations should not inure by way of ex- ecutory devise to any other son he might here- after have? The second question was, in case the Umita- tion to the other sons of John Hopkins was to be looked upon as an executory devise, what should become of the rents and profits in the mean time? The cause was first heard at the rolls, and there decreed to be an executory devise. Serjeant Eyre and Peere Williams, for plain- tiff. The Attorney General, The Solicitor Gen- eral, Mr. Verney, Mr. Fazakerley, Mr. Bootle, and Mr. Strange, contra. TALBOT, Lord Ch. Two questions have been made upon this will: The first is, wheth- er this limiiatlou to the first and every other son of John Hopkins can now take efifect as an executory devise? or whether it shall be taken as a contingent remainder, and cousequentlj- void for want of a particular estate to support it, by reason of Saniuel's death in the testator's lifetime, and that John Hopkins had no son in esse at the testator's death, in whom the re- mainder might vest? The next question is, in case the limitation be taken as an executory de- vise, what is to become of the rents and profits of this estate until John Hopkins has a son? As to the first, I think it impossible to cite any authorities iu point. None have been cited. It seems to be allowed, that if things had stood at the testator's death as they did at the time of the making of the will, the limitation in question wcjuld have been a remainder, by rea- son of Samuel's estate, which would have sup- I)orted it. So is the case of Purefoy v. Rogers, 2 Saund. 3S0, o8S, aud limitations of this kind are never construed to be executory devises but where they caunot take effect as remainders. So on the other hand, it is likewise clear, that had there beeu no such limitation to Samuel and his sons, the hmitation must have been a good executory devise, there being no anteced- ent estate to support it; and consequently not able to inure as a remainder; so that it must be the intervening accident of Sanmel's death in the testator's lifetime, upon which this point must depend. And as to that, I am of opinion that the time of making the will is principally to be regarded in respect to the testator's intent. If an infant or feme covert make a will, and do not act either at full age or after the cover- ture determined, to revoke this will, yet the will is void, because the time of making is principal- ly to be considered; and the law judges them 222 ESTATES IN REAL PROPERTY. incapable of disposing by will at those times. The same reason holds in the case of a devise of all the lands which a man has or shall have at the time of his death, no after-purchased lands shall pass without a republication, which was the case of Bunter v. Cook, 1 Salk. 237, be- cause the time of the will made is chiefly to be regarded. Indeed it is possible that subsequent things may happen to alter the testator's intent; but unless that alteration be declared, no court can take notice of his private intent, not mani- fested by any revocation of the former; though these subsequent accidents may and must, in many cases, have an operation upon the will; as in the case of Fuller v. Fuller, Cro. Eliz. 422, and Hutton v. Simpson, 2 Yern. 722. And in the Lord Landsdown's Case, 10 Mod. 96, the first limitation did not expire by eflluxiou of time, but by the intervenmg alteration of things between the time of the will made and the testator's death; and the words there, for want of such issue, were not construed to create another estate tail to postpone the limitation, but only to convert the second estate to the precedent limitation. So we see, that in these cases the method of the courts is not to set aside the intent because it cannot take effect so fully as the testator de- sired; but to let it work as far as it can. And if, in this case, we consider it as an executory devise, the intent will be served in case John Hopkins has a second son; but if it is taken as II remainder, the intent plainly appearing that a second son of John Hopkins should take, is quite destroyed; there being no precedent es- tate to support it as a remainder. The very being of executory devises shows a strong in- clination, both in the courts of law and equity, to support the testator's intent (Doe v. Fou- nereau, 2 Doug. 487), as far as possible; and though they be not of ancient date, yet they are of the same nature with springing uses, which are as old as uses themselves. I can see no difference between this case and the others of like nature, that have been adjudged. And if such a coustructiou may be made consistently with the rules of law, and agreeable to the tes- tator's intent, it would be very hard not to suf- fer it to prevail. In Pay's Case, Cro. Eliz. 878, had the testator lived to Michaelmas, the lim- itation had been a remainder; and if a re- mainder in its first creation does, by any subse- quent accident, become an executory devise, why should it not be good here, upon the au- thority of that case, where by the testator's death before Michaelmas, what would other- wise have been a remainder, was held to be good by way of executory devise? I think, that in this case the limitation would operate as an executory devise, if it was of a legal estate; and therefore shall do so as a trust, the rules being the same. The next question is, what is to become of the rents and profits, in case this be taken to be an executory devise, until the birth of a son to John Hopkins? And this must depend upon the wording of the proviso. The words are: "That none of the persons to whom the estates are limited shall be in the actual possession and enjoyment of the rents and profits until they shall respectively attain the age of twenty-one; and that in the mean time the trustees shall make such allowance thereout as they shall think suitable; and then he wills, that the overplus of such rents and profits do go to such persons as shall be entitled unto, and come to the actual possession of his estate," &c. By vv'hich words none are affected but such as are to come to the estate under the limitations. It restrains them from having anything to do with the estate till they attain the age of twenty-one, and provides the surplus (beyond their allow- ance) to be laid up for them; but here is no provision made what shall become of those rents and profits until a son be born. The words in the mean time have been differently construed; and it was said, that there was no certain ter- minus a quo, from whence they should begin. Had Samuel lived, the terminus must have been from the time of the limitation taking place; and so it must be toties quoties any come to be entitled to this estate under the several lim- itations; but until somebody is in esse to take under this executory devise, the rents and prof- its must be looked upon as a residue undisposed of, and consequently must descend upon the heir-at-law; the case being the same where the whole legal estate is given to the trustees, and but part of the trust disposed of, as in this case; and where but part of the legal estate is given away, and so the residue undisposed of, the le- gal estate descends upon the heir-at-law. So it was held by the Lord King in the case of Lord and Lady Hertford v. Lord Weymouth,— which shows that equity follows the law. One objection indeed has been made, which is, that the testator having in this case devised another estate to John Hopkins, his heir-at-law, can never be supposed to have intended him this surplus. And to warrant that objection, the case of North v. Crompton, 1 Ch. Cas. 196, has been cited. I answer, that in these cases the heir does not take, by reasou of the testa- tor's intent being one way or the other; but the law throws it upon him: and wherever the testator has not disposed (be his intent that the heir should take or not take), yet still he shall take, for somebody must take; and none being appointed by the testator, the law throws it upon the heir. And so aflirmed the decree, and ordered the personal estate (which was of very great value) to be laid out in land, and settled to the same uses as the real estate, according to the direc- tion of the will. FUTURE USES. 223 WYMAN V. BROWN et al.i (50 Me. 139.) Supreme Judicial Court of Maine. 18G3. D. D. Stewart, for demandant. G. W. Whit- ney, for tenants. AVALTON, J. * * * Another question raised in this case is, whether the deed from Mrs. Brown to Oliver S. Nay was valid. The objection to it is, that it purports to convey a freehold estate to commence in future; and such is its effect, for by its terms Mrs. Brown was "to have quiet possession, and the entire income of the premises until her decease." Deeds in which grantors have reserved to themselves estates for life are believed to be very common in this state; and whether or not such deeds are valid is certainly a very important question, and ought to be authorita- tively decided. It was a principle of the old feudal law of England that there should always be a known owner of every freehold estate, and that the freehold should never, if possible, be in abey- ance. This rule was established for two rea- sons: (1) That the superior lord might know on whom to call for the military services due from every freeholder, as otherwise the de- fence of the realm would be weakened. (2) That every stranger who claimed a right to any lands might know against whom to bring his suit for the recovery of them; as no real ac- tion could be brought against any one but the actual tenant of the freehold. Consequently, at common law, a fi-eehold to commence in futuro could not be conveyed, because m that case the freehold would be in abeyance from the execution of the conveyance till the future estate of the grantee should vest. And it is laid down in unqualified terms in several cases in Massachusetts, and in one in this state, that an estate of freehold cannot be conveyed to commence in futuro by a deed of bargain and sale, which owes its validity to the statute of uses, and not to the common law. But the doctrine, that freehold estates to commence in futuro cannot be conveyed by deeds of bargain and sale, since the passage of the statute of 27 Hen. VIII. c. 10, commonly called the "Statute of Uses," is clearly errone- ous. It is clear that, at common law, such conveyances could not be made; and it is equal- ly clear that, by virtue of the statute of uses, such conveyances ma^' be made. Prior to the reign of Henry VIII., real estate covild be so held that one person would have the legal title, and another the right to the use and income. To obviate many supposed inconveniences which had grown out of this practice of sepa- rating the legal title from the use, the statute of uses was passed, by which it was enacted that the estates of the persons so seized to uses should be deemed to be in them that had the use, in such quality, manner, form, and condi- tion, as they had before in the use. It will bo 1 Irrelevant parts omitted. noticed that the effect of this statute was to annex the legal title to the use, so that they could not be separated. Mr. Cruise says, that when this statute first became a subject of dis- cussion in the courts of law, it was held by the judges that no uses should be executed that were limited against the rules of the common law; but that this doctrine was not and could not be adhered to, for the statute enacts that the legal estate or seizin shall be in them that have the use, in such quality, manner, form, and condition, as they before had in the use; that chancery having permitted uses to com- mence in futuro and to change from one person to another, by matter ex post facto, the courts of law were obliged to admit of limitations of this kind. The statute did not attempt to lim- it or control the doctrine of uses; it simply de- clared that where the use was, there the legal estate should be also. The result was that it opened several new modes of conveying legal estates wholly unknown to the common law; for whatever would convey the use and income of real estate before its passage, would, by vir- tue of the statute, convey the legal estate aft- erwai'ds. It will thus be seen that convey- ances through the medium of the statute or uses are effected in this way: The owner of an estate in lands, for a consideration either good or valuable, agrees that another shall have the use and income of it, and the statute steps in and annexes the legal title to the use, and thus the cestui que use becomes seized of the legal estate in the same manner as befoi-e the statute he would have been seized of the use. The argument, presented in a syllogistic form, is this: Since the statute of uses, free- holds can be conveyed in any manner that uses were conveyed before its passage. Before its passage, uses were conveyed to commence in fu- turo; therefore, freeholds may be conveyed to commence in futuro since its passage. It must be remembered, however, that neither legal es- tates nor uses can be so limited as to create perpetuities. If future estates are so limited as to take effect in the lifetime of one or more persons living, and a little more than twenty- one years after, the rule against perpetuities will not be violated. We will refer to a few leading authors: Mr. White, a very learned English writer, in one of his additions to the text of Mr. Cruise, says: "By executory devise and conveyances operating by virtue of the statute of uses, free- hold estates may be limited to commence in futuro." 1 Greenl. Cruise, tit. 1, § 3G. Mr. Chitty, after stating that by a common law conveyance, a freehold to commence in fu- ture could not be conveyed, continues: "But deeds operating under the statute of uses, such as bargain and sale, covenant to stand seized, or a conveyance to uses, or even a devise, may give an estate of freehold to commence in fu- turo." 1 Chit. Gen. Prac. 306; 2 Bl. Comm. 144, note 6. Mr. Sugden says: "A bargain and sale to the use of D. after the death of S, is good." Gilb. Uses (Sugd. Ed.) 163. 224 ESTATES IN REAL PROPERTY. Mr. Cornish: "By a bargain and sale, or cov- enant to stand seized, a freehold may be cre- ated in futuro." Corn. Uses, 44. Chancellor Kent: "A person may covenant to stand seized, or bargain and sell, to the use of another at a future day." 4 Kent, Comm. 298. Mr. Archbold: "Deeds acting under the stat- ute of uses, such as bargain and sale, cove- nant to stand seized, or a conveyance to uses, or even a devise, may give an estate of free- hold to commence in futuro." Note to 2 Bl. Comm. 16G. In a note to the 5th American edition of Smith's Leading Cases (volume 2, p. 451), aft- er noticing the Massachusetts cases, in which it is held that a freehold to commence in fu- turo cannot be created by a deed of bargain and sale, the learned editors say: "It is un- doubtedly true that such limitations are bad at common law; but it seems equally well set- tled that they are good in deeds operating un- der the statute of uses, " whether the use be raised on a pecuniary consideration or on blood or marriage. The point is so held in England, and has been repeatedly and expressly decided in New York, and several of the other states of this country. The attributes of a use are the same, whatever may be the consideration in which it is founded; and, if uses commencing in futuro were without the operation of the statute, when raised by a bargain and sale, they would be equally so when originating in a covenant to stand seized." In Rogers v. Insurance Co., 9 Wend. 611, the question underwent a most thorough examina- tion, and the conclusion was, that a freehold to commence in futuro could be conveyed by a deed of bargain and sale, operating under the statute of uses; and the court expressed sur- prise that any one should have ever supposed that such was not the law. In Bell V. Scammon, 15 N. H. 3S1, the same question was raised, and the court held that "a freehold in futuro could be conveyed either by deed of bargain and sale, or by a covenant to stand seized." Ml". Washburn, in his late ver.v able work on Real Property (volume 2, p. G17. § 1(5). says that the reasoning of Chancellor Walworth, in Rogers v. Insurance Co., 9 Wend. 611, in which he maintains that an estate of freehold, to com- mence in futuro, can be conveyed by a deed of bargain and sale, and the authorities upon which he rests would seem to leave little doubt in the matter, beyond what arises from the cir- cumstance that other courts have taken a dif- ferent view' of the law. It is true, that, in Massachusetts and this* state, when determining that the deeds theia under consideration were valid upon other grounds, judges have expressed the opinion that a freehold to commence in futuro could not be conveyed by a deed of bargain and sale; but these opinions are mere obiter dicta, for they have never yet had the effect of defeating a deed. The idea seems to have originated in an unauthorized statement (probably accident- al) to be found in Pray v. Pierce, 7 Mass. 381. Having under discussion the rule that deeds should be so construed as to give effect to the intention of the parties, and not to defeat it, the case of Wallis v. Wallis, 4 Mass. 135, was referred to by way of illustration, and the re- porter makes the court say that the deed in the latter case was held to be a covenant to stand seized, "because, as a bargain and sale, it would have been a conveyance of a freehold in futuro and therefore void." By turning to that case (Wallis v. Wallis), it will be seen that such a statement is unauthorized. The court remarked that, by a common law convey- ance, a freehold could not be conveyed to com- mence in futuro, which was unquestionnbly true; but the court did not say that such a conveyance could not be made by a deed of bar- gain and sale, which owes its validity to the statute of uses, and not to the common law. Why the deed in Wallis v. Wallis was not sus- tained as a bargain and sale, instead of cov- enant to stand seized, does not appear. The case was submitted without argument, and, as the deed could readily be sustained as a cove- nant to stand seized, it may not have occurred to the court that it could just as well be sus- tained as a bai'gain and sale. On careful ex- amination, it will be seen that these cases (Wallis V. Wallis and Pray v. Pierce) are not authorities for the doctrine they are so often cited in support of. In Welsh v. Foster, 12 Mass. 93. the deed, for a valuable consideration, to be paid when- ever the deed should take effect, and not other- wise, purported to convey a certain part of a mill, with the land, &.C., "provided that the said deed should not take effect or be made use of, until the said millpond should cease to be em- ployed for the purpose of carrying any two mill-wheels." It was held that nothing passed by the deed, not because it was to take effect only upon the happening of a future event, but because the event, if it should ever happen, might be delayed much beyond the utmost peri- od allowed for the vesting of estates on a fu- ture contingency. The event, it was held, must, in its original limitation, be such that it must either take place, or become impossible to take place, within the space of one or more lives in being, and a little more than twenty-one years afterwards, to prevent the creating of a per- petuity, or an unalienable estate. Such is un- doubtedly the law. Besides, no consideration was ever paid for the deed, and the grantor aft- erwards conveyed to another. Under these cir- cumstances the court very properly held the deed void. But the distinction made by Judge Jack- son, in that case, between covenants to stand seized, and deeds of bargain and sale, is mere dictum, and has neither reason nor authority to rest upon. Speaking of the qualities of a bargain and sale. Judge Jackson says: "One of these quali- ties is, that it must be to the use of the bar- gainee, and that another use cannot be limited on that use, from which it follows that a free- hold to commence in futuro cannot be conveyed FUTUKE USES. 225 in this mode; as that would be to make the Largainee hold to the use of another until the future freehold should vest." Hold what? Ui>- on the execution of a deed in which the grantor reserves to himself an estate for life, and con- veys the residue, the grantee obtains a present vested right to a future enjoyment of the property; but, until the future freehold vests, the use, the seizin, and the right of possession, remain with the grantor, and there is no con- ceivable thing that the bargainee will be requir- ed to "hold to the use of another." Judge Jackson seeras to have supposed that when such a deed is executed the legal estate or seizin passes immediately to the grantee, and that, until his own future freehold vests, he holds this legal estate, or ideal seizin, to the use of the grantor. But such a theory is wrong, and contrary to every authority we have been able to find. In fact, under the statute of uses, such a tlieory, which separates the legal estate from the use, cannot be correct; for, by the very terms of the statute, the lawful seizin, estate, and possession, shall be deemed and adjudged to be in him that hath the use, to all intents, constructions, and purposes in law; and is made applicable to "any such use in fee simple, fee tail, for life, or for years." "The seizin remains in the person creating the futm-e use till the springing use arises, and is then executed to this use by the statute." 2 Washb. Real Prop. 282. "If raised by a covenant to stand seized, or bargain and sale, the estate remains in the covenantor or bargainor until the springing use arises." Gilb. Uses (8ugden's note) 103. A person may covenant to .stand seized, or bar- gain and sell, to the use of another at a future day. In such a case "the use is severed out of the grantor's seizin." 4 Kent, Comm. 298. "Here is a conveyance to the bargainee to take effect at the decease of the bargainor, which creates a resulting use to the latter during life, with a vested use in remainder to the bargainee in fee, both uses being served, in succession out of the seizin of the bargainor." Jackson v. Dunsbah, 1 Johns. Cas. 96. The rule, that a bargain and sale must be to the use of the bargainee, and not to the use of another, applies to only so much of the estate as is bargained for, and not to the residue, \^hich is not bargained for and not paid for; and the rule is not violated, ami there is noth- ing inequitable or repugnant to the grant, in , requiring him to wait for the enjoyment of the property till such time as, by the express terms of the deed under which he claims, he is entitled to it. It will be noticed, that Judge Jackson as- sumes the existence of a rule, that one use can- not be limited upon another, and that it would be a violation of this rule to give effect to a deed of bargain and sale of a freehold, to com- mence in futuro. Such a rule does exist in England. Mr. Watkins. in his introduction to his very able work on conveyancing, says, that "about the time of passing the statute of uses, some wise man, in the plenitude of legal learn- ing, declared there could not be an use upon an GATES.K.P.— 15 use; and that this very wise declaration, which must have surprised every one who was not sufhcieutly learned to have lost his common sense, was adopted." And Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 591, says, that by this means, a statute made upon great consider- ation, introduced in a solemn and pompous man- ner, has had no other effect than to add, at most, three words to a conveyance. Mr. Wil- liams, in his work on Real Property (page 124), says this rule has much of the technical sub- tilty of the scholastic logic which was then prevalent. Lord Mansfield calls it "absurd nar- rowness." 2 Doug. 774. Blackstone calls it a "technical scruple;" and Mr. Sugden, in a note to Gilb. Uses, p. 348, says it never ought to have been sanctioned at all. In Thacher v. Omans (decided in 1792), reported in 3 Pick. 521, on page 528, the court refer to the censures of Blackstone and Ix>rd Mansfield, and express strong doubts as to the propriety of admitting it in this country; and Mr. Greenleaf says it may well be doubted whether the rule has been adopted in this country. Note to Greenl. Cruise, tit. 12, c. 1, § 4. With such a weight of au- thority against it. if the effect of the rule would be to defeat such conveyances as we are now con- sidering, we think we might be warranted in re- jecting it altogether. But such is not its effect. When a freehold is conveyed, to commence at a future day, till such future day arrives the use results to the grantor, and then passes to the grantee; and the uses are not limited one upon the other, but one after the other; and, in this way, a fee simple may be carved into an indefinite number of less estates. "So long as a regular order is laid down, in which the pos- session of the lands may devolve, it mattei's not now many kinds of estates are granted, or on how many persons the same estate is bestowed. Thus, a grant may be made at once to fifty dif- ferent people, separately, for their lives." Wil- liams, Real Prop. 189, 190. "Shifting or sub- stituted uses do not fall within this technical rule of law, for they are merely alternate uses." 4 Kent, Comm. 301. The statement that a freehold to commence in futuro cannot be conveyed by a deed of bar- gain and sale, which seems first to have been made in Pray v. Pierce, as before stated, has been several times repeated in Massachusetts (Welsh V. Foster, 12 Mass. 93; Parker v. Nichols, 7 Pick. 115; Gale v.Coburn,18 Pick. 397; Brew- er V. Hardy, 22 Pick. 370). and once at least in this state (Marden v. Chase, 32 Me. 329); but the only case we have found in which an attempt has been made to give a reason for the supposed rule is that of Welsh v. Foster; and a careful examination has satisfied us that the argument in that case is unsound, and not supported by any adjudged case tbat has the weight of au- thority. It is admitted in all these cases that if it can be shown that the parties to such deeds are near relatives, effect may be given to them as covenants to stand seized, made, not as they purport to be, for a pecuniary consid- eration, but in consideration of love and affec- 226 ESTATES IN REAL PROPERTY. tion. And there is no doubt that if two deeds should be executed instead of one; that is, if the grantor should first convey the whole estate, and then take back a life lease, the transaction would be held legal. The doctrine, therefore, that a freehold to commence in future cannot be conveyed by a deed of bargain and sale, amounts to no more than this: that if the own- er of a fee simple estate proposes to reserve to himself a life estate, and to sell the residue, if he deals with a relative, such an arrangement can be carried into effect by making one deed; but if he deals with a stranger it will be neces- sary to make two. It is certainly very strange that a doctrine so technical, so easily evaded, and so utterly destitute of merit, should have gained the cuiTency it has. We entertain no doubt that, by deeds of bar- gain and sale, deriving their validity from the statute of uses, freeholds may be conveyed to commence in futuro. It will be seen that the law is so held in England, -and by an overwhelm- ing weight of authority in this country. In fact that such was the law seems never to have been doubted except in Massachusetts and this state; and we think the error originated in the unau- thorized remark found in Pray v. Pierce, and has been repeated from time to time without receiving that consideration which its impor- tance demanded. We also are of opinion that effect may be given to such deeds by force of our own stat- utes, independently of the statute of uses. Our deeds are not framed to convey a use merely, relying upon the statute to annex the legal title to the use. They purport to convey the laud itself, and being duly acknowledged and record- ed, as our statutes require, operate more like feoffments than like conveyances under the statute of uses. In Thacher v. Omans, 3 Pick., on page 525, Chief Justice Dana, speaking of our statute of conveyances, first enacted in 1007, re-enacted in the Revised Laws of 1784, incor- porated into the statutes of this state in 1S21, and still in force, says: "This statute was evi- dently made to inti-o- 1 Bish. Mar. Worn. § 616 et seq.; Freem. Coten, § 72; Fladung v. Rose, 58 Md. 13-24. "And in case of devise and conveyances to husband and wife together, though it has been said that they can take only as tenants by entireties, the pre- vailing rule is that, if the instrument expressly so provides, they may take as joint tenants or tenants in common." Stew. Husb. & Wife, §§ 307-310; Tied. Real. Prop. § 244. "And as by common law it was competent to make hus- band and wife tenants in common by proper words in the deed or devise," etc. (Hoffman V. Stigers, 28 Iowa, 310; Brown v. Brown, 133 lud. 476, 32 N. E. 1128), "so it seems that hus- band and wife may by express words be made tenants in common by gift to them during cov- erture" (McDermott v. French, 15 N. J. Eq. 80). In Hadlock v. Gray, 104 Ind. 599, 4 N. E. 167, a conveyance had been made to Isaac Cannon and Mai-y Cann>on, who were husband and wife, during their natural lives, and the court say: "The language employed in the deed plainly declares that Isaac Cannon and Mary Cannon are not to take as tenants by entirety. The result would follow from the provision destroying the survivorship, for this is the grand and essential characteristic of such a tenancy. * * * The whole force of the lan- guage employed is opposed to the theory that the deed creates an estate in fee in the husband and wife." The court further say: "It is true that where real property is conveyed to husband and wife jointly, and there are no limiting words in the deed, they will take the estate as tenants in entirety. * * * But, while the general rule is as w^e have stated it, there may be conditions, limitations, and stipulations in the deed conveying the property which will defeat the operation of the rule. The denial of this proposition involves the affirmation of the proposition that a grantor is powerless to limit or define the estate which he grants, and this would conflict with the fundamental principle that a grantor may for himself determine what estate he will grant. To deny this right w'ould be to deny to parties the right to make their own contracts. It seems quite clear upon prin- ciple that a grantor and his grantees may limit and define the estate granted by the one and accepted by the other, although the grantees be husband and wife." The court then adopts the language of Washburn (1 Washb. Real Prop. 674) and Tiedeman, supra. In Edwards V. Beall, supra, the court hold that when lands are granted husband and wife as tenants in common they will hold by moietieSj as other distinct and individual persons would do. If, as contended by appellees, the rule prevail that the same words which, if the grantees were un- married, would have constituted them joint ten- ants, will, they being husband and wife, make them tenants by entireties, then it would re- sult as a logical conclusion that husband and wife cannot be joint tenants, because by this rule, words, however apt or appropriate to cre- ate a joint tenancy, would, in a conveyance to husband and wife, result in an estate by en- tireties; joint tenancy would be superseded or put in abeyance by the estate created by laAv, — tenancy by entirety. The result of such rea- soning would be to destroy the contractual pow- er of the parties where this relationship be- tween the grantees is shown to exist. Any other process of reasoning would carry the rule too far, and we must hold it modified to the ex- tent here indicated. Husband and wife, not- withstanding tenancies by entirety exist as they did under the common law, may take and hold lands for life, in joint tenancy or in common, if appropriate language be expressed in the deed or will creating it; and we know of no more apt term to create a joint tenancy in the gran- tees in this estate than the expression "convey and warrant to Daniel S. Wiggins and Laura Belle Wiggins in joint tenancy." These words appear in the granting clause of the deed con- veying the land in question, and the estate ac- cepted and held by the grantees is thereby lim- ited, and they hold, not by entireties, but in joint tenancy. A joint tenant's interest in prop- erty is subject to execution, Freem. Ex'ns, 125. Judgment reversed, with instructions to the circuit court to sustain the demurrer to each paragraph of the complaint. ESTATES IX COPARTXERSIIIP. 231 DYER V. CLARK et al. (5 Mete. 5G2.) Supreme Judicial Court of Massachusetts. Suffolk and Nantucket. March Term, 1843. Mr. Pope, for plaiutiff. G. T. Curtis, for de- fendants. SHAW, C. J. This is a suit in equitj- by the surviving partner of tlie firm of Burleigh & Dyer, established by articles of copartner- ship, under seal, for the purpose of carrying on the business of distillers. The principal ques- tion is one which has arisen in several other cases, and is this; whether real estate, pur- chased by copartners, from partnership funds, to be held, used and occupied for partnership purposes, is to be deemed in all respects real estate, in this commonwealth, to vest in tii& partners severally as tenants in common, so that on the decease of either, his share will de- scend to his heirs, be chargeable with his wife's dower, and in all respects held and treat- ed as real estate, held by the deceased partner as a tenant in common; or, whether it shall be regarded as quasi personal property, so as to be held and appropriated as personal property, first to the liquidation and discharge of the partnership debts, and to the adjustment of the partnership account, and payment of the amount due, if any, to the surviving partner, before it shall go to the widow and heirs of the deceased partner. This is a new question here, and comes now to be decided, for the first time. There are some principles, bearing upon the result, which seem to be well settled, and may tend to establish the grounds of equity and law. upon which the decision must be made. It is considered as established law, that part- nership property must first be applied to the payment of partnership debts, and therefore that an attachment of partnership property for a partnership debt, though subsequent in time, will take precedence of a prior attachment of the same property for the debt of one of the partners. It is also considered, that however extensive the partnership may be, though the partners may hold a large amount and great variety of property, and owe many debts, the real and actual interest of each partner in the partnership stock is the net balance which will be coming to him after payment of all the part- nership debts and a just settlement of the ac- count between himself and his partner or part- ners. 1 Ves. Sr. 242. The time of the dissolution of a partnership fixes the time at which the account is to be taken, in order to ascertain the relative rights of the partners, and their respective shares in the joint fund. The debts may be numerous, and the funds widely dispersed and difficult of collection; and therefore much time may elapse, before the affairs can be wound up. the debts paid, and the surplus put in a condition to be divided. But whatever time may elapse before the final settlement can be practically made, that settlement, when made, must re- late back to the time when the partnership was dissolved, to determine the relative inter- ests of the partners in the fund. When, therefore, one of the partners dies, which is de facto a dissolution of the partner- ship, it seems to be the dictate of natural equi- ty, that the separate creditors of the deceased partner, the widow, heirs, legatees, and all oth- ers claiming a derivative title to the property of the deceased, and standing on his rights, should take exactly the same measure of justice, as such partner himself would have taken, had the partnership been dissolved in his life-time; and such interest would be the net balance of the account, as above stated. Such indeed is the result of the application of the well known rules of law, when the part- nership stock and property consist of personal estate only. xVnd as partnerships were formed mainly for the promotion of mercantile transac- tions, the stock commonly consisted of cash, merchandize, securities, and other personal property; and therefore the rules of law, gov- erning that relation, would naturally be framed with more especial reference to that species of property. It is therefore held, that on the de- cease of one of the partners, as the surviving partner stands chargeable with the whole of the partnership debts, the interest of the part- ners in the chattels and choses in action shall be deemed so far a joint tenancy, as to enable the surviving partner to take the property by survivorship, for all purposes of holding and administering the estate, until the effects are reduced to money, and the debts are paid; though, for the purpose of encouraging trade, it is held that the harsh doctrine of the jus ac- crescendi, which is an incident of joint tenancy, at the common law, as well in real as in per- sonal estate, shall not apply to such partner- ship property; but, on the contrary, when the debts are all paid, the effects of the partnership reduced to money, and the purposes of the part- nership accomplished, the surviving partner shall be held to account with the representa- tives of the deceased for his just share of the partnership funds. Then the question is, whether there is any thing so peculiar in the nature and characteris- tics of real estate, as to prevent these broad principles of equity from applying to it. So long as real estate is governed by the strict rules of the common law, there would be, cer- tainly, great difficulty in shaping the tenure of the legal estate in such form as to accomplish these objects. Should the partners take their conveyance in such mode as to create a joint tenancy, as they still may, though contrary to the policy of our law, still it would not accom- plish the purposes of the parties; first, be- cause either joint tenant might, at his option, break the joint tenancy and defeat the right of survivorship, by an alienation of his estate, or (what would be still more objectionable) the right of survivorship at the common law would give the whole estate to the survivor, without 232 ESTATES IN REAL PROPERTY. liability to account, and thus wholly defeat the claims oC the separate creditors, and of the widow and heirs of the deceased partner. But we are of opinion, that the object may be accomplished in equity, so as to secure all parties in their just rights, by considering the legal estate as held in trust for the purposes of the partnership; and since this court has been fully empowered to take cognizance of all implied as well as express trusts, and carry them into effect, there is no difhculty, but on the contrary great fitness, in adopting the rules of equity on the subject, which have been adopted for the like purpose, in England and in some of our sister states. And it appears to us, that considering the nature of a partnership, and the mutual confidence in each other, which that relation implies, it is not putting a forced construction upon their act and intent, to hold that when property is purchased in the name of the partners, out of partnership funds and for partnership use, though by force of the common law they take the legal estate as ten- ants in common, yet that each is under a con- scientious obligation to hold that legal estate, until the puii)oses for which it was so pur- chased are accomplished, and to appropriate it to those pui-poses, by first applying it to the payment of the partnership debts, for which both his partner and he himself are liable, and until he has come to a just account with his partner. Each has an equitable interest in that portion of the legal estate held by the other, until the debts, obligatory on both, are paid, and his own share of the outlay for partner- ship stock is restored to him. This mutual equity of the parties is greatly strengthened by the consideration, that the partners may have contributed to the capital stock in unequal pro- portions, or indeed that one may have advanced the whole. Take the case of a capitalist, who is willing to put in money, but wishes to take no active concern in the conduct of business, and a man who has skill, capacity, integrity and industry to make him a most useful active partner, but without property, and they form a partnership. Suppose real estate, necessary to the carrying on of the business of the part- nership, should be purchased out of the capital stock, and on partnership account, and a deed taken to them as partners, without any special provisions. Credit is obtained for the firm, as well on the real estate as the other property of the firm. What are the true equitable rights of the partners, as resulting from their pre- sumed intentions, in such real estate? Is not the share of each to stand pledged to the other, and has not each an equitable lien on the es- tate, requiring that it shall be held and appro- priated, first to pay the joint debts, then to re- pay the partner who advanced the capital, be- fore it shaJl be applied to the separate use of either of the partners? The creditors have an interest, indirectly, in the same appropriation; not because they have any lien, legal or equita- ble (2 Story, i]q. § 1253'), upon the property itself; but on the equitable principle, which de- termines that the real estate, so held, shall be deemed to constitute part of the fund from which their debts are to be paid, before it can be legally or honestly diverted to the private use of the partners. Suppose this tnist is not implied, what would be the condition of the parties, in the case supposed, in the various contingencies which might happen? Suppose the elder and wealthy partner were to die: The legal estate descends to his heirs, clothed with no trust in favor of the surviving partner: The latter, without property of his own, and relying on the joint fund, which, if made liable, is sufficient for the pui-pose, is left to pay the whole of the debt, whilst a portion, and per- haps a large portion, of the fund bound for its payment, is withdrawn. Or suppose the youn- ger partner were to die, and his share of the legal estate should go to his creditors, wife or children, and be withdrawn from the partner- ship fund; it would work manifest injustice to him who had furnished the fund from which it was purchased. But treating it as a trust, the rights of all parties will be preserved; the legal estate will go to those entitled to it, subject only to a trust and equitable lien to the surviv- ing partner, by which so much of it shall stand charged as may be necessary to accomplish the puri>oses for which they purchased it. To this extent, and no further, will it be bound; and subject to this, all those will take, who are en- titled to the property; namely,- the creditors, widow, heirs, and all others standing on the rights of the deceased partner. ^ It may happen that real estate may be sq purchased by partners, and out of partnership funds, in such manner as to preclude such im- plied trust, and indicate that the parties intend- ed to purchase property to be held by them separately for their separate use; as where there is such an express agreement at the time of the purchase, or a provision in the articles of copartnership, or where the price of such purchase should be charged to the partners re- spectively, in their several accounts with the firm. This would operate as a division and distribution of so much of the funds, and each would take his share divested of any implied trust. If, in the conveyance, the grantees should be described as tenants in common, it would be a circumstance bearing on the ques- tion of intent, though perhaps it might be con- sidered a slight one; because those words would merely make them tenants in common of the legal estate, which, by operation of law, they would be without them. But, as we have al- ready seen, such legal estate is not at all in- compatible with an implied trust for the part- nership. The result of this part of the case seems to us to be this; that when, by the a'greement and understanding of partners, their capital stock and partnership fund consist, in whole or in part, of real estate — inasmuch as it is a. well known rule governing the relation of partner- ship, that neither partner can have an ultimate and beneficial interest in the capital until the ESTATES IX COPARTNERSHIP. 233 •debts are paid and the account settled; that both rely upon such rule and tacitly claim the benefit of it, and expect to be bound by it; the sann; rule shall extend to real estate. The ■same mutual confidence, which governs the re- lation in other respects, extends to this; and, therefore, when real estate is purchased as part of the capital, whether by the form of the conveyance the legal estate vests in them as joint tenants or tenants in common, it vests in them and their resptctive heirs, clothed with a trust for the partners, in their partnership ca- pacity, so as to secure the beneficial interest to rthem until the purposes of the partnership are accomplished. It follows, as a necessary conse- quence, that such partnership real estate can- not be conveyed away and alienated by one of the partners alone, without a breach of such trust; and that such a conveyance would not be valid against the other partner, unless made to one who had no notice, actual or construct- ive, of the trust. But, if a person knows that a particular real estate is the partnership prop- erty of two or more, and he attempts to acquire a title to any part of it from one alone, without the knowledge or consent of the other, there seems to be no hardship in holding that he tiikes such title at his peril, and on the responsi- bility of the person with whom he deals. But we think the same conclusion is well sup- ported by authorities, although there has been some diversity of opinion amongst the earlier ■cases. The adjudged cases were so fully examined by the counsel in their arguments, that it is unnecessary to state them in detail. The prin- ■ciples, which have already been suggested as the grounds on which we decide the present ■case, were applied in Phillips v. Phillips, 1 Mylne &- K. 64.9; Broom v. Broom, 3 Mylne & K. 443; Sigourney v. Munn, 7 Conn. 11; Hoxie V. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802. In these cases, all the previous decisions on the subject were carefully considered. See, also, 3 Kent, Comm. (4th Ed.) 30-39; 1 Story, Eq. §§ G74. ()7.">; 2 Story, Eq. § 1207; Colly. Partn. 7G; Carj% Partn. 27. 28; Houghton v. Hough- ton, 11 Sim. 491. It has been supposed that the case of Good- win V. Richardson, 11 Mass. 409, stajids op- posed to the decision now made. I do not think it does. That case was decided in 1814, before equity po\^■ers existed in this commonwealth, on the general subject of trusts. It was in terms a question as to the vesting of the real estate; and the court were bound to decide the ■case for the defendant, if they found, upon the facts, that the estate in question had vested in the partners, on foreclosure, as tenants in com- mon. Had they decided the other way, they must have (""ecidod that partners, taking real estate in satisfaction of a partnership debt, by foreclosing a mortgage, would hold the estate as joint tenants, with right of survivorship at law, without liability to account — a principle directly opposed to the Statutes of 1785, chap- ter 02, respecting joint tenancy; because in that case and at that time the real estate must de- scend and vest according to the rules of law, and there was no court of equity competent to require the surviving partner to account with the representatives of the deceased party. In that case, as it happened, both the separate estate and the partnership estate were insol- vent, and therefore good justice would have been done, in deciding that the plaintiff should recover for the benefit of the partnership creear, that the only negligence or unskilfuluess at all attributa- ble to the defendants, if any, arose from not leaving sufficient pillars of coal or supports to sust-iin the surface, and this they undoubtedly did not, most probably under the belief that all the coals in the mine belonged to them by virtue of their purchase and title. This was certainly true with the exposition of such a right given by Baron Parke in Harris v. Ryding, 5 Mees. & W. 60. "I do not mean to say," observed that able judge, "that all the coal does not be- long to the defendants, but they cannot get it without leaving proper supports." The right of supports, ex jure natur;c, which the owner of the soil is entitled to receive from the minerals underneath, has, within compara- tively a few years, received much attention in the courts in England, and the rule de<]ucible from the cases in all the courts, the house of loi-ds, exchequer and queen's bench, is, that where there is no restriction or contract to the contra iw. tlie subterranean or mining property is subservient to the surface to the extent of sufficient supports to sustain the latter, or in default, there is liability to damages by the owners or workers of the former for any in- jury consequent thereon to the latter. This is fully supiK)rted by Harris v. Rydiug, 5 ilees. GATES,R.P.— 16 & W. 60, determined at Easter term, 1839, in the exchequer; Humphries v. Brogden (1850) 1 Eng. Law & Eq. 251, in the queen's bench before Lord Campbell, C. J., and Patteson, Coleridge, and Erie, JJ. The whole question was there discussed most learnedly and ably by the Lord C. J., and the same result arrived at as had been in the court of exchequer, supra, and in the case of Earl of Glasgow v. Hurlct Alum Co. (house of lords, in ISoO) 8 Eng. I^iw & Eq. 13. There are many other cases refer- red to in the English courts to the same effect, by Rog. Mines, p. 455 et seq. Among tliem are Rowbotham v. Wilson, 8 H. L. Gas. 348; Pen- nington V. Gallard, 9 Exch. 1, for the principle stated by the learned author at page 407: "That if an owner of lands grant a lease of the min- erals beneath the surface with power to work and get them in the most general terms, still the lessee must leave a reasonable support for the surface, and so conversely, where the min- erals are demised and the surface is retained by the lessor, there arises a prima facie inference at common law, upon every such demise, that the lessor is demising them in such a iiuinner as is consistent with the retention by himself of his own right of support." These citations prove two things, viz., that the owner of a mineral estate, if the law be not controlled by the conveyance, owes a servitude to the super- incumbent estate, of sufficient supi>orts; con- sequently the failure to do so is negligence, and so may be declared upon. Humphries v. Brog- den, supra. A usage to mine without the observance of this duty by defendants must have been so ancient and uniform in the region in which the property is situated, as to amount to a custom or usage capable of controlling the rule of the common law cited above, and of becoming the law itself. One element of such a custom would be, that it is so ancient "that the memory of man runneth not to the contrary." This could not be, and was hardly pretended of the locality in question. Nor is It likely that in .i business like mining bituminous coal, found only in the western counties of the state, there ever was any rule there other tITan that which would result from convenience. As to the house in question damaged, it un- doubtedly had a right to supports as incident to the ground on which it stood. What might l>e the consequence of building in an unreasonable manner, taking into view the mining rights be- neath, on a question of the suUiciency of the supports, does not arise in tliis case and neetl not be decided. We have no case strictly of authority in our books, nor do I find any in the books of our sister states. In most of them but little sub- terranean raining exists, and in others the ques- tion has not presented itself for adjudication. In none of the cases cited by the learned coun- sel from our state reports, is the question de- cided or intentionally touched; we therefore must rule the point for ourselves for the first time. The English cases referred to, and oth- ers whieli might be referred to, emanate from VA2 INCORPOREAL HEREDITAMENTS. great ability, and from a country in which min- ing, its consequences and effects, are more prac- tical, and the experience greater, than in any other country of which we possess any knowl- edge. We think it safe, therefore, to follow its lead in this matter, and hold that in the case in Land, the recovery was right, predicated as it was of the want of sufficient supports in the mine to prevent the plaintiff's ground, house and orchard, from injury by subsiding into the cavity made in the earth by the removal of the coal. The upper and underground estates being several, they are governed by the same maxim which limits the use of property otherwise situ- ated, "Sic utere tuo et alienum non laedas." We have no doubt but all the evils depreciated by the adoption of this rule will disappear under regulations adapted to each case of severance of the soil from the minerals. Contract may devote the whole minerals to the enjoyment of the purchaser, without supports, if the parties choose. If not, the loss by maintaining pillars or putting in props will necessarily come out of the value of the mineral estate. If at any time the public necessities may demand the pillars to be removed for fuel, we may safely assume that the same necessity will provide some rule which will be satisfactory in such a crisis. We think the case was well decided below, and that the judgment must be affirmed. RENTS. 243 SACHEVEREL v. FROGATE. (1 Vent. IGl.) Court of King's Bench. 1671, In covenant, the plaintiff declared, that Ja- cinth Sacheverel seised in fee, demised to the defendant certain laud for j'ears, reserving £120 rent. And therein was a covenant; that the defendant should yearly, and every year, dur- ing the said term, pay unto the lessor, his exec- utors, administrators and assigns the said rent; and sets forth, how that the lessor devised the reversion to the plaintiff, and for £120 rent since his decease he brought the action. The defendant demanded oyer of the inden- ture, wherein the reservation of the rent was yearly during the term to the lessor, his execu- tors, administrators and assigns, and after a covenant prout the plaintiff declared, and to this the defendant demurred. It was twice argued at the bar, and was now set down for the resolution of the court, which Hale delivered with the reasons. He said they were all of opinion for the plain- tiff. For what interest a man hath, he hath it in a double capacity, either as a chattel, and so transmissible to the executors and adminis- trators, or as an inheritance, and so in capacity ■of transmitting it to his heir. Then if tenant in fee makes a lease, and re- serves the rent to him and his executors, the rent cannot go to them, for there is no testa- mentary estate. On the other side, if lessee for 100 years should make a lease for 40 years, reserving rent to him and his heirs, that would be void to the heir. Now a reservation is but a return of some- what back in retribution of what passes; and therefore must be carried over to the party which should have succeeded in the estate if no lease had been made, and that has been always held, where the reservation is general. So, though it doth not properly ere:: a fee, yet 'tis a descendible estate; because it comes in lieu of what would have descended; there- fore constructions of reservations have been ever according to the reason and equity of the thing. If two joint-tenants make a lease, and reserve the rent to one of them, this is good to both, unless the lease be by indenture; because of the estoppel, which is not in our case, for the ■executors are strangers to the deed. 'Tis true, if A. and B. join in a lease of land, wherein A. hath nothing, reserving the rent to A. by indenture, this is good by estoppel to A. But in Earl of Clare's Case it was resolved, that where he and his wife made a lease reserv- ing a rent to himself, and his wife and his heirs, that he might bring debt for the rent; and de- clare as of a lease made by himself alone, and the reservation to himself; for being in the case of a feme covert there could be no estoppel, al- though she signed and sealed the lease. There was an indenture of demise from two joint-tenants reserving £20 rent to them both; •^ne only sealed and delivered the deed, and brought debt for the rent, and declared of a demise of the moiety, and a reservation of £10 rent to him. And resolved that he might. Be- tween Bond V. Cartwright, 2 RoUe, Abr. 453, pi. 21. And in the Common Pleas, Pas. 40 Eliz., tenant in tail made a lease reserving a rent to him and his heirs, it was resolved a good lease to bind the entail, for the rent shall go to the heir in tail along with the reversion, though the reservation were to the heirs gen- erally. For the law uses all industry imagina- ble, to conform the reservation to the estate. Whitlock's Case, 8 Coke, G9b, is very full to this, where tenant for life, the remainder over so settled by limitation of uses, with power to the tenant for life to make leases, who made a lease reserving rent to him, his heirs and as- signs. Resolved, that he in the remainder might have the rent upon this reserv.ition. So put the case, that lessee for 100 years should let for 50, reserving a rent to him and his heirs during the term; I conceive this would go to the executor. 'Tis true, if the lessor re- served the rent to himself, 'tis held, it will nei- ther go to the heir or executor: but in 27 Hen. VIII. p. 19, where the reservation is to him and his assigns, it is said, that it will go to the heir. And in the case at bar the words execu- tors and administrators are void; then 'tis as much as if reserved to him and his assigns during the term, which are express words de- claring the intent, and must govern any implied construction, which is the true and particular reason in this case. The old books that have been cited have not the words during the term. Vide Lane, 256. Richmond v. Butcher, Cro. Eliz. 217, indeed is judged contrary in point, but that went upon a mistaken ground, which was the manuscript report 12 Edw. II. Whereas I suppose the book intended was, 12 Edw. III., Fitz. Assize, 86, for I have appointed the manuscript of Edw. II. (which is in Lincoln's Inn Library) to be searched, and there is no such case in that year of Edw. II. The case in the 12 Edw. III., is a man seised of two acres, let one, reserving rent to him, and let the other, re- serving rent to him and his heirs; and re- solved, that the first reservation should deter- mine with his life, for the antithesis in the reservation mikes a strong implication that he intended so. In Wotton and Edwin's Case, 5 Cro. .Tac, the words of reservation were yield- ing and paying to the lessor, and his assigns. And resolved, that the rent determined uiwn his death. In that case there wanted the ef- fectual and operative clause during the term. The case of Sury v. Brown, is the same with ours in the words of reservation; and the as- signee of the reversion brought debt, and did not aver the life of the lessor. And the opin- ion of Jones, Croke and Doderidge was for the plaintiff. Latch. 99. The law will not suffer any construction to take away the energy of these words, during the term. 244 I^' CORPOREAL HEREDITAMENTS. If a man reserves a rent to him or his heirs, 'tis void to the heir. 2 Inst. 214a. But in Mallory's Case, 5 Coke, 111b, where an abbot reserved a rent during the term to him or his successors, it was resolved good to the successor. It is said in Brudnel's Case, 5 Coke, 9a, that if a lease be made for years, if A. and B. so long live, if one of them dies, the lease deter- mines, because not said, if either of them so long lives. So it is in point of grant. But it is not so in point of reversion, for Pasch. 4 Jac. in the common pleas between Hill and Hill, the case was, a copyholder in fee (where the custom was for a widow's estate) made a lease by li- cense, reserving rent to him and his wife dur- ing their lives (and did not say, or either of them), and to his heirs: it was resolved. First, that the wife might have this rent, though not party to the lease. Secondly, that though the rent were reserved during their lives, yet it should continue for the life of either of them; for the reversion, if possible, will attract the rent to it, as it were by a kind of magnetism. TITLE. 245 KOHL et al. v. UNITED STATES. (91 U. S. 3G7.) Supreme Court of the United States. Oct., 1875. E. W. Kittredge, for plaiutiffs in error. Ed- win B. Smith, Asst. Atty. Gen., for the United States. Mr. Justice STRONG delivered the opinion of the court. It has not been seriously contended during the argument that the United State« government is without power to appropriate lands or other property within the states for its own uses, axid to enable it to perform its proper functions. Such an authority is essential to its independ- ent existence and i>erpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the ac- quisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the constitution in the general government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom- houses, post-offices, and court-houses, and for other public uses. If the right to acquire prop- erty for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a state prohibiting a sale to the federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its prac- tical existence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state govern- ments of the right of eminent domain,— a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediate- ly, and indeiHMident of the consideration wheth- er they would escheat to the government in case of a failure of heirs. The right is the off- spring of political necessity; and it is insep- arable from sovereignty, unless denieer- form its functions, — as must sometimes be nec- essary in the case of forts, light-houses, and military posts or roads, and other conveniences and necessities of government, — tlie general government may exercise the authority as well within the states as within the territory under its exclusive jurisdiction; and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating is existence should not be liable to be controlled or defeated by the want of consent of private parties or of any other au- thority." We refer also to Trombley v. Hum- phrey, 23 Mich. 471; 10 Pet. 723; Dickey v. Turnpike Co., 7 Dana, 113; McCullough v. Maryland, 4 Wheat. 420. It is true, this power of the federal govern- ment has not heretofore been exercised ad- versely; but the non-user of a power does not disprove its existence. In some instances, the states, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condemna- tions have been sustained by their courts, with- out, however, denying the right of the United States to act independently of the states. Such was the ruling in Gilmer v. Lime Point, 18 24G TITLE. Cal. 229, where lands were condemned by a proceeding in a state court and under a state law for a United States fortification. A sim- ilar decision was made in Burt v. Insurance Co., lOG Mass. 356, where land was taken un- der a state law as a site for a post-ofl&ee and sub-treasury building. Neither of these cases denies the right of the federal government to have lands in the states condemned for its uses under its own power and by its own ac- tion. The question was, whether the state could take lands for any other public use thaji that of the state. In Trombley v. Humphrey, 23 Mich. 471, a different doctrine was assert- ed, founded, we think, upon better reason. The proper view of the right of eminent do- main seems to be, that it is a right belonging to a sovereignty to take private propei-ty for its own public uses, aaid not for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right. If the United States have the power, it must be com- plete in itself. It can neither be enlarged nor diminished by a state. Nor can any state pre- scribe the mainner in which it must be exer- cised. The consent of a state can never be a condition precedent to its enjoyment. Such consent is needed only, if at all, for the trans- fer of jurisdiction and of the right of exclusive legislation after the land shall have been ac- quired. It may, therefore, fairly be concluded that the proceeding in the case we have in hand was a proceeding by the United States government in its own right, and by virtue of its own emi- nent domain. The act of congress of March 2, 1872 (17 Stat. 39), gave authority to the secretary of the treasury to purchase a central and suitable site in the city of Cincinnati, Ohio, foT the erection of a building for the accom- modation of the United States courts, custom- house. United States depository, post-office, in- ternal-revenue and pension offices, at a cost not exceeding $300,000; and a proviso to the act declared that no money should be expended in the purchase until the state of Ohio should cede its jurisdiction over tlie site, and relin- quish to tlie United States the right to tax the property. The authority here given was to purchase. If that were all, it might be doubt- ed whether the right of eminent domain was intended to be invoked. It is true, the words "to purchase" might be construed as includ- ing the power to acquire by condemnation; for, technically, purchase includes all modes of acquisition other than that of descent. But generally, in statutes as in common use, the word is employed in a sense not technical, only as meaning acquisition by contract between the parties, without governmental interference. That congress intended more than this is evi- dent, however, in view of the subsequent and amendatory act passed June 10, 1872, which made an appropriation "for the purchase at private sale or by condemnation of the ground for a site" for the building. These provisions, cO'Bnected as they are, manifest a clear inten- tion to confer upon the secretary of the treas- ury power to acquire the grounds needed by the exercise of the national right of eminent domain, or by private purchase, at his dis- cretion. Why speak of condemnation at all, if congress had not in view an exercise of the i-ight of eminent domain, and did not intend to confer upon the secretary the right to invoke it? But it is contended on behalf of the plaintiffs in error that the circuit court had no jurisdic- tion of the proceeding. There is nothing in the acts of 1872, it is true, that directs the process by which the contemplated condemnation should be effected, or which expressly authorizes a pro- ceeding in the circuit court to secure it. Doubt- less congress might have provided a mode of taking the land, and determining the compen- sation to be made, which would have been ex- clusive of all other modes. They might have prescribed in what tribunal or by w^hat agents the taking and the ascertainment of the just compensation should be accomplished. The mode might have been by a commission, or it might have been referred expressly to the cir- cuit court; but this, we think, was not neces- sary. The investment of the secretary of the treasury with power to obtain the land by con- demnation, without prescribing the mode of ex- ercising the power, gave him also the power to obtain it by any means that were competent to adjudge a condemnation. The judiciary act of 1789 conferred upon the circuit courts of the United States jurisdiction of all suits at com- mon law or in equity, when the United States, or any officer thereof, suing under the authority of any act of congress, are plaintiffs. If, then, a- proceeding to take land for public uses by con- demnation may be a suit at common law, juris- diction of it is vested in the circuit court. That it is a "suit" admits of no question. In Wes- ton v. Charieston, 2 Pet, 464, Chief Justice Marshall, speaking for this court, said: "The term ["suit"] is certainly a very comprehensive one, and is understood to apply to any proceed- ing in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various; but, if a right is litigated in a court of justice, the proceeding by which the decision of the court is sought is a suit." A writ of prohibition has, therefore, been held to be a suit; so has a writ of right, of which the circuit court has jurisdic- tion (Green v. Liter, 8 Cranch, 229); so has habeas corpus. Holmes v. Jamison, 14 Pet. 564. When, in the eleventh section of the ju- diciary act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled pro- ceedings, but suits in which legal rights were to be ascertained and determined as distin- guished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescrib- ed by statute; but the right itself was superior to any statute. That it was not enforced through the EMLXEis'T DOMAIN^. 247 agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difiicult, then, to see why a proceeding to take land in virtue of the government's eminent domain, and deter- mining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right. It is quite immaterial that congress has not enacted that the compensation shall be ascertained in a ju- dicial proceeding. That ascertainment is in its nature at least quasi judicial. Certainly no other mode than a judicial trial has been pro- vided. It is argued that the assessment of property for the purpose of taking it is in its nature like the assessment of its value for the purpose of taxation. It is said they are both valuations of the property to be made as the legislature may prescribe, to enable the government, in the one case, to take the whole of it, and in the other to take a part of it for public uses; and it is argued that no one but congress could prescribe in either case that the valuation should be made in a judicial tribunal or in a judicial proceeding, although it is admitted that the legislature might authorize the valuation to be thus made in either case. If the supposed analogy be ad- mitted, it proves nothing. Assessments for tax- ation are specially provided for, and a mode is prescribed. No other is, therefore, admissible. But there is no special provision for ascertain- ing the just compensation to be made for land taken. That is left to the ordinary processes of the law; and hence, as the government is a suitor for the property under a claim of legal right to take it, there appears to be no reason for holding that the proper circuit court has not jurisdiction of the suit, under the general grant of jurisdiction made by the act of 17S9. The second assignment of error is, that the circuit court refused the demand of the defend- ants below, now plaintiffs in error, for a sep- arate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, and they demanded a separate trial of the value of their interest; but the court overruled their demand, and re- quired that the jury should appraise the value of the lot or parcel, and that the lessees should in the same trial try the value of their lease- hold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to the jury, the lessor to offer his testimony separately, and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees; and the court in- structed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend, that whether the proceeding is to be treated as founded on the national right of eminent domain, or on that of the state, its consent having been given by the enactment of the state legislature of Feb. 15, 1S73 (70 Ohio Laws, p. 36, § 1), it was required to conform to the practice and proceedings in the courts of the state in like cases. This requirement, it is said, was made by the act of congress of June 1, 1S72. 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the state courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute a joint proceeding against all the owners of lots proposed to be taken (Giesy v. Railroad Co., 4 Ohio St. 308); but the- eighth section of the state statute gave to "the owner oi; owners of each separate parcel" the , right to a separate trial. In such a case, there- fore, a separate trial is the mode of proceeding in the state courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels. It hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. The circuit court, therefore, gave to the plaintiffs in error all, if not more than all, they had a right to ask. The judgment of the cir- cuit court is affirmed. Mr. Justice FIELD (dissenting). Assuming that the majority are correct in the doctrine announced in the opinion of the court, — that the right of eminent domain within the states, using those terms not as synonymous with the ultimate dominion or title to property ,^ but as indicating merely the right to take pri- vate property for public uses, belongs to the fed- eral government, to enable it to execute the powers conferred by the constitution, — and that any other doctrine would subordinate, in impor- tant particulars, the national authority to the caprice of individuals or the will of state legisla- tures, it appears to me that provision for the exercise of the right must first be made by leg- islation. The federal courts have no inherent jurisdiction of a proceeding instituted for the condemnation of property; and I do not find any statute of congress conferring upon them such authority. The judiciary act of 17S9 only invests the circuit courts of the United States with jurisdiction, concurrent with that of the state courts, of suits of a civil nature at com- mon law or in equity; and these terms have reference to those classes of cases which are conducted by regular pleadings between parties, according to the established doctrines prevailing at the time in the jurisprudence of England. The proceeding to ascertain the value of prop- erty which the government may deem neces- sary to the execution of its powers, and thus the compensation to be made for its appropria- tion, is not a suit at common law or in equity, but an inquisition for the ascertainment of a particular fact as preliminary to the taking; and all that is required is that the proceeding shall be conducted in some fair and just mode,, to be provided by law, either with or without the intervention of a jury, opportunity being 2i8 TITLE. afforded to parties interested to present evi- dence as to the value of the property, and to be heard thereon. The proceeding by the states, in the exercise of their right of eminent domain, is often had before commissioners of assessment or special boards appointed for that purpose. It can hardly be doubted that congress might provide for inquisition as to the value of prop- erty to be taken by similar instrumentalities; and yet, if the proceeding be a suit at common law, the intervention of a jury would be re- quired by the seventh amendment to the consti- tution. I think that the decision of the majority of the court in including the proceeding in this case under the general designation of a suit at common law, with which the circuit courts of the United States are invested by the eleventh section of the judiciary act, feoes beyond pre- vious adjudications, and is in conflict with them. Nor am I able to agree with the majority in their opinion, or at least intimation, that the authority to purchase carries with it authority to acquire by condemnation. The one supposes an agreement upon valuation, and a voluntary conveyance of the property: the other implies a compulsory taking, and a contestation as to the value. Beekman v. Railroad Co., 3 Paige, 75; Railroad Co. v. Davis, 2 Dev. & B. 465; Will- yard V, Hamilton, 7 Ham. (Ohio) 453; Living- ston V. Mayor, etc., 7 Wend. 85; Koppikus v. Commissioners, 16 Cal. 249. For these reasons, 1 am compelled to dissent from the opinion, of the court. GRANT BY UXITED STATES. 249 MOORE V. ROBBINS. (96 U. S. 530.) Supreme Court of the United States. Oct., 1877. Error to the supreme court of the state of Illinois. Philip Phillips, for plaintiff in error. R. E. Williams, contra. Mr. Justice MILLER delivered the opinion of the court. This case is brought before us by a writ of -error to the supreme court of the state of Illi- nois. In its inception, it was a bill in the circuit court for De Witt county, to foreclose a mort- iraire irivou by Thomns I. Bunn to his brother Lewis Bunn, on the sputh half of the south- •«ast quarter and the south half of the south- west quarter of section 27, township 19. ran^'P 3 east, in said county. In the progress of the <;ase, the bill was amended so as to allege that C. H. Moore and David Davis set up some claim to the land; and they were made defend- ants, and answered. Moore said that he was the rightful owner ■of forty acres of the land mentioned in the bill and mortgage, to wit, the south-west quar- ter of the south-west quarter of said section, and had the patent of the United States giving him the title to it. Davis answered that he was the rightful owner of the south-east quarter of said south- west quarter of section 27. He alleges that John P. Mitchell bought the land at the public sale of lands ordered by the president for that •district, and paid for it, and had the receipt of the register and receiver, and that it was after- wards sold under a valid judgment and execu- tion against Mitchell, and the title of said Mitchell came by due course of conveyance to him, said Davis. It will thus be seen, that, while Moore and Davis each assert title to a different forty acres of land covered by Bunn's mortgage to his brother, neither of them claim under or in privity with Bunn's title, but adversely to it. But as both parties assert a right to the land under purchases from the United States, and since their rights depend upon the laws of the United States concerning the sale of its pub- lic lands, there is a question of which this court must take cognizance. As regards Moore's branch of the case, it seems to us free from difliculty. The evidence shows that the forty acres which he claims was struck off to him at a cent or two over $2.50 per acre, at a public land sale, by the officers of the land district at Dan- ville, 111., Nov. 15, 1855; that his right to it was contested before the register and receiver by Bunn. who set up a prior pre-emption right. Those officers decided in favor of Bunn; where- upon Mooi-e appealed to the commissioner of the general land ullice, who reversed the deci- sion of the register and receiver, and on this decision a patent for the land was issued to Moore, who has it now in his possession. Some time after this patent was delivered to Moore, Bunn appealed from the decision of the commissioner to the secretary of the interior, who revei-st'd the commissioner's decision and confirmed that of the register and receiver, and directed the patent to Moore to be recalled, and one to issue to Bunn. But Moore refused to re- turn his patent, and the land department did not venture to issue another for the same land; and so there is no question but that Moore is vested now with the legal title to the land, and was long before this suit was commenced. Nor is there, in looking at the testimony taken be- fore the register and receiver and that taken in the present suit, any just foundation for Bunn's pre-emption claim. We will consider this point more fully when we come to the Dav- is branch of the case. Taking this for granted, it follows that Moore, who has the l'?gal title, is in a suit in chancery decreed to give it up in favor of one who has neither a legal nor an equitable title to the land. The supreme court of Illinois, before whom it was not pretended that Bunn had proved his right to a pre-emption, in their opinion in this case place the decree by which they held Bunn's title paramount to that of Moore on the ground that to the officers of the land de- partment, including the secretary of the interi- or, the acts of congress had confided the de- termination of this Class of cases; and the de- cision of the secretary in favor of Bunn. being the latest and the final authoritative decision of the tribunal having jurisdiction of the con- test, the courts are bound by it, and must give effect to it. Bobbins v. Bunn, 54 111. 48. Without now inquiring into the nature and extent of the doctrine referred to by the Illi- nois court, it is very clear to us that it has no application to Moore's case. While conceding for the present, to the fullest extent, that when there is a question of contested right between I private parties to receive from the United States a patent for any part of the public land, it belongs to the head of the land department to decide that question, it is equally clear that when the patent has been awarded to one of the contestants, and has been issued, deliver- ed, and accepted, all right to control the ti- tle or to decide on the right to the title has passed from the land-office. Not only has it passed from the land-office, but it has passed from the executive department of the govern- ment. A moment's consideration will show that this must, in the nature of things, be so. We are speaking now of a case in which the officers of the department have acted within the scope of their authority. The offices of reg- ister and receiver and commissioner are created mainly for the purpose of supervising the sales of the public lands; and it is a part of their daily business to decide when a party has by purchase, by pre-emption, or by any other rec- 250 TITLE. ognized mode, established a right to receive fi-om the governmc'iit a title to any part of the public domain. This decision is subject to an appeal to the secretary, if taken in time. But if no such appeal be taken, and the patent issued under the seal of the United States, and signed by the president^ is delivered to and ac- cepted by the party, the title of the govern- ment passes with this delivery. With the title losses away all authority or control of the ex- ecutive department over the land, and over the title which it has conveyed. It would be as reasonable to hold that any private owner of land who has conveyed it to another can, of his own volition, recall, cancel, or annul the in- strument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the Unit- ed States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course. "A patent," says the court in U. S. v. Stone, 2 Wall. 525, "is the highest evidence of title, and is conclusive as against the government and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England, this was originally done by scire facias; but a bill in chancery is found a more convenient remedy." See, also, Hughes V. U. S., 4 Wall. 232, 11 How. .552. If an individual setting up claim to the land has been injured, he may, under circumstances presently to be considered, have his remedy against the party who has wrongfully obtained the title which should have gone to him. But in all this there is no place for the fur- ther control of the executive department over the title. The functions of that department necessarily cease when the title has passed from the government. And the title does so pass in every instance where, under the deci- sions of the officers having authority in the matter, a conveyance, generally called a pat- ent, has been signed by the president, and seal- ed, and delivered to and accepted by the gran- tee. It is a matter of course that, after this is done, neither the secretary nor any other ex- ecutive officer can entertain an appeal. He is absolutely without authority. If this were not so, the titles derived from the United States, instead of being the safe and assured evidence of ownersliip which they are generally supposed to be, would be always subject to the fluctuat- ing, and in many cases unreliable, action of the land-office. No man could buy of the grantee with safety, because he could only convey sub- ject to the right of the officers of the govern- ment to annul his title. If such a power exists, when does it cease? There is no statute of limitations against the government; and if this right to reconsider and annul a patent after it has once become perfect exists in the executive department, it can be exercised at any time, however remote. It is needless to pursue the subject further. The existence of any such power in the land' department is utterly inconsistent with the universal principle on which theTnght of pri- vate property is founded. The order of the secretary of the interior, therefore, in Moore's case, was made without authority, and is utterly void, and he has a title perfect both at law and in equity. The question presented by the forty acres- claimed by Davis is a very different one. Here, although the government has twice sold the laud to different persons and received the money, it has issued no patent to either, and the legal title remains in the United States. It: is not denied, however, that to one or the oth- er of the parties now before the court this title equitably belongs; and it is the purpose of the present suit to decide that question. The evidence shows that on the same day that Moore bought at the public land sale the forty acres we have just been considering, Mitchell bought in like manner the forty acres now claimed by Davis; to wit, Nov. 15, 1S55. He paid the sum at which it was struck off to- him at public outcry, and received the usual certificate of purchase from the register and re- ceiver. On the twentieth day of February, 1856, more than three months after Mitchell's purchase, Thomas I. Bunn appeared before the same register and receiver, and asserted a right, by reason of a pre-emption commenced on the eighth day of November, 1855, to pay for the south half of the south-west quarter and the south half of the south-east quarter of section 27, which includes both the land of Moore and Davis in controversy in this suit, and to receive their certificates of purchase. They accepted his money and granted his certificate. A con- test between Bunn on the one side, and Moore and Mitchell on the other, as to whether Bunn had made the necessary settlement, was de- cided by those officers in favor of Bunn; and on appeal, as we have already shown, to the commissioner, this was reversed, and finally the secretary of the interior, reversing the com- missioner, decided in favor of Bunn. But no- patent was issued to Mitchell after the com- missioner's decision, as there was to Moore; and the secretary, therefore, had the authority, undoubtedly, to decide finally for the land de- partment who was entitled to the patent. And, though no patent has been issued, that decision remains the authoritative judgment of the de- partment as to who has the equitable right to- the land. The supreme court of Illinois, in their opinion in this case, come to th? conclusion that this- final decision of the secretary is not only con- clusive on the department, but that it also ex- cludes all inquiry by courts of justice into the- right of the matter between the parties. The whole question, however, has been since that time very fully reviewed and considered by this court in Johnson v, Towsley, 13 Wall. 72. The doctrine announced in that case, and repeated in several cases since, is this: That the decision of the officers of the land. GRANT BY UNITED ."STATES. 9.^ 251 department, made within the scope of their au- thority ou questions of this kind, is in general conclusive everywhere, except when reconsider- ed by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice, when the title afterwards comes in question. But that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and in cases where it is clear that those ollicers have, by a mistake of the law, given to one man the land which on the undisputed facts belonged to an- other, to give appropriate relief. In the recent case of Shepley v. Cowan, 91 U. S. 310, the doctrine is thus aptly stated by Mr. Justice Field: "The officers of the land depart- ment are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construction of the law ap- plicable to any case, or if fraud is practised up- on them, or they themselves are chargeable with fraudulent practices, their rulings may be re- viewed and annulled by the courts when a con- troversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a con- tested case before them, the only remedy is by appeal from one officer to another of the depart- ment." Applying to the case before us these princi- ples, which are so well established and so well understood in this court as to need no further argument, we are of opinion, if we take as proved the sufBciency of the occupation and improvement of Bunn as of the date which he alleged, his claim is fatally defective in another respect in which the officers of the land depart- ment were mistaken as to the law which gov- erned the rights of the parties, or entirely over- looked it. In the recent case of Atherton v. Fowler, 9(5 U. S. 513, we had occasion to review the gener- al policy and course of the government in dis- posing of the public lands, and we stated that it had formerly been, if it is not now, a rule of primary importance to secure to the govern- ment the highest price which the land would bring by offering it publicly at competitive sales, before a right to any part of it could be established by private sale or by pre-emption. In the enforcement of this policy, the act of September 14, 1841, which for the first time established the general principle of pre-emp- tion, and which has remained the basis of that right to this day, while it allowed persons to make settlements on the public lands as soon as the surveys were completed and filed in the lo- cal offices, affixed to such a settlement two con- ditions as affecting the right to a pre-emption. One of these was that the settler should give notice to the land-office of the district, within thirty days after settlpment. of his intention to exercise the right of pre-emption, and the other we will give in the language of the fourteenth section of that act: "This act shall not delay the sale of any of the public lands of the United States beyond the time which has been or may be appointed by the proclamation of the president, nor shall any of the provisions of this act be available to any person who shall fail to make the proof of payment and file the affidavit required, be- fore the commencement of the sale aforesaid." 5 Stat. 457. There can be no misconstruction of this pro- vision, nor any doubt that it was the intention of congress that none of the liberal provisions of that act should stand in the way of a sale at auction of any of the public lands of a given district where the purchase had not been com- pleted by the payment of the price before the commencement of the sales ordered by the pres- ident's proclamation. We do not decide, be- cause we have not found it necessary to do so, whether this provision is applicable under aJl the pre-emption laws passed since thf- act of 1841, though part of it is found in the Revised Statutes (section 2282), as part of the existing law. But we have so far examined all those laws enacted prior to November, 1855, the date of Mitchell's purchase, as to feel sure it was in full operation at that time. The act of March 3, 1853, extending the right of pre-emption to the alternate sections, which the government policy reserved in its numerous grants to rail- roads and other works of internal improve- ment, required the pre-emptor to pay for them at $2..50 per acre, before they should be offered for sale at public auction. 10 Stat. 244. This was only two years and a half before these lands were sold to Mitchell, and they were parts of an alternate section reserved in a railroad grant. That statute, in its terms, was limited to persons who had already set- tled on such alternate sections, and it may be doubted whether any right of pre-emption by a settlement made afterwards existed under the law. But it is unnecessary to decide that point, as it is beyond dispute that it required in any event that the money should be paid be- fore the land was offered for sale at public auction. The record of this case shows that, while Bunn's pre-emption claim comes directly with- in the provision of both statutes, they were ut- terly disregarded in the decision of the secre- tary of the interior, on which alone his case has any foundation. We have no evidence in this record at what time the president's proclamation was issued, or when the sales under it began at which Mitchell purchased. These proclamations are not published in the statutes as public laws, and this one is not mentioned in the record. But we know that the public lands are never offered at public auction until after a proclama- tion fixing the day when and the place where the sales begin. The record shows that both Moore and Mitchell bought and paid for the re- spective forty-acre pieces now in contest, at public auction. That they were struck off to 252 TITLE. them a few cents in price above the minimum of $2.50, below which these alternate sections could not be sold, and that this was on the fifteenth day of November, 1855. These pub- lic sales were going on then on that day, and how much longer is not known, but it might have been a week, or two weeks, as these sales often continue open longer than that. Bunn states in his application, made three months after this, that his settlement began on the 8th of November, 1855. It is not apparent from this record that he ever gave the notice of his intention to pre-empt the land, by filing what is called a declaration of that intention in the land-ofBce. There is a copy of such a dec- laration in the record accompanying the affi- davit of settlement, cultivation, and qualifica- tion required of a pre-eniptor, which last pa- per was made and sworn to Feb. 20, 1856, when he proved up his claim, and paid for and received his certificate. There is nothing to show when the declaration of intention was filed in the office. Waiving this, however, which is a little ob- scure in the record, it is very clear that Bunn "failed to make proof of payment, and failed to file the affidavit of settlement required, be- fore the commencement of the sale" at which Mitchell bought. The statute declares that none of the provisions of the act shall be avail- able to any person who fails to do this. The affidavit and payment of Bunn were made three months after the land sales had commenced, and after these lands had been sold. The section also declares that the act shall not delay the sale of any public land beyond the time which has been or may be appointed by the proclamation of the president. To re- fuse Mitchell's bid on account of any supposed settlement, even if it had been brought to the attention of the oflicers, would have been to de- lay the sale beyond the time appointed, and would, therefore, have been in violation of the very statute under which Bunn asserts his right. Whatever Bunn may have done on the 8th of November, and up the 15th of that month, in the way of occupation, settlement, improve- ment, and even notice, could not withdraw the land from sale at public auction, unless he had also paid or offered to pay the price before the sales commenced. It seems quite probable that such attempt at settlement as he did make was made while the land sales were going on, or a few days before they began, with the purpose of preventing the sale, in ignorance of the provision of the stat- ute which made such attempt ineffectual. At all events, we are entirely satisfied that the lands in controversy were subject to sale at public auction at the time Moore and Mitch- ell bid for and bought them; that the sale so made was by law a valid one, vesting in them the equitable title, with right to receive the patents; and that the subsequent proceedings of Bunn to enter the land as a pre-emptor were unlawful and void. It was the duty of the court in Illinois, sitting as a court of equity, to have declared that the mortgage made by Bunn, so far as these lands are concerned, created no lien on them, because he had no right, legal or equitable, to them. The decree of the supreme court of that state must be reversed, and the cause remanded to that court for further proceedings in accordance with this opinion; and it is so ordered. BOUNDARIES. 253 CITY OF JOLIET et al. v. WERNER. (46 N, E. 780.) Supreme Court of Illinois. April 3. 1897. Appeal from circuit court, Will county; Dorrauce Dibell, .Judj^e. Suit by Charles Werner against the city of Joliet and another. Decree for couiplaiiiant. Defendants appeal. Affirmed. C. McNaughtou, for appellants. E. Phelps, for appellee. MAGRUDER, C. J. This is a bill filed by appellee, as owner of lot 3 and the east half of lot 2 of Joel A. Matto-son's subdivision of the north half of block 17 of Bowens addi- tion to Joliet, for the puiTX>se of enjoining said city and its superintendent of streets from talcing any proceedings to move the sidewalk in front of appellee's lots north of the present location of said sidewalk. The bill was answered by the appellants, and a decree was entered in favor of ai)pe!lee, granting the injunction substantially as prayed for. The present appeal is from the decree so entered. The question in controversy relates to the location of the north line of Jefferson street, upon which appellee's lots front. The side- walk in front of the lots is 8 feet wide, rest- ing uix)n a stone wall on the south side there- of and another stone wall on the north side thereof. Under this sidewalk runs a sewer. The stone wall on the north side of the side- walk was built as far back as 1856 or 1837, and upon the same a fence was at that time erected. It is contended by api^ellants that the correct north line of Jefferson street is 8.3 feet north of the north line of said side- walk, while appellee contends that the north line of said sidewalk is the correct north line of Jefferson street. In other words, the claim of the city is that the north line of JelTerson street is about 8 feet north of the north line of the sidewalk, while appellee contends that said strip, 8 feet wide, north of the north line of the sidewalk, is within his inclosure, and is his property. If the sidewalk were extended north 8.3 feet, in ac- cordance with the contention of the city, it would not only take a strip of land, 0.4 feet wide, between the south line of appellee's house and the north line of the sidewalk, but it would also take nearly 2 feet off the south side of appellee s house. The part of Jeffer- son street lying south of the north half of block 17 runs eastward from Micliigan street, on the west, to Eastern avenue, on the east. In 18.53, when appellee bought lot 3, Jeffer- son street ran no further towards the east than Michigan street, and was not then open from Michigan street to Eastern avenue. In the fall of 1853, appellee and two other par- ties, whose interests he very soon acquired, bought the lots now in controversy from Joel A. Matteson; giving their notes therefor, with the understanding that deeds should be made upon the payment of the notes. Ap- pellee did not receive his deed of lot 3 from Matteson until September 19, 1856. When these lots Avere bought of Matteson, he had a survey made, in order to show the south line of the lots sold by him, or the north line of what was to be Jefferson street. Up- on the line thus surveyed under Matteson's order, stakes were set; and when he sold the lots he pointed out to api>ellee and the other purchasers these stakes, as indicating the line to be adopted as the north line of the street. The line in which the stakes were thus set was located 8 feet and 3 inches south of what would have been the north line of Jefferson street if that part of Jef- ferson street then existing west of Michigan street had been extended east of Michigan street. The line thus pointed out by Matte- son to appellee and the other purchasers, an J uix)n which the stakes had been set by the surveyor, corresiwnds with the line which is now the north line of the sidewalk in front of appellee's lots. At the time the lots were purchased the plat of Matteson's subdivision of the north half of block 17 had not been recorded. The plat shows upon its face that it was made on December 9, 1854, but that it was not acknowledged until the 12th day of March, 1859, and not recorded until March 15, 1859. After the purchase of his lots, in the fall of 18.53 and in March, 1854, appellee and the other purchasers took possession of their respective lots, and began the erection of houses upon them; appellee's house being finished in May or June of 1854. Appellee has lived in the house so erected by him from that time up to the present time, or over 40 yeai-s before the filing of the bill heroin. Not more than 2 or 3 years after the building of his house, the stone wall on the north line of the sidewalk was erected, and the fence set up on top of it; and, as we understand the evidence, the 8 feet and 3 inches north of this fence have been inclosed by appellee ever since that time,— more than 35 years. The sidewalk in question was built as early as 18.54 or 1855. It was originally con.struct- ed by appellee, but it was, by ordinance, ac- cepted by the city, and a sidewalk upon the same line was constructed by the city. The city levied and collected an assessment to pay for that portion of the walk built by its order. The city directed its surveyor to su- perintend the work of constructing ilie side- walk located where the present sidewalk is located. The street between the south side of the sidewalk, as thus originally located, and the north side of the sidewalk on the south side of Jefferson street, has been sev- eral times graveled by the city. Some 30 j-ears ago the city also built a culvert run- ning from the north side of the sidewalk, as thus located, to the south side of the side- walk on the south side of the street. It is claimed by appellants that if that portion of Jefferson street west of Michigan 254 TITLE. street had been extended or continued east- ward to Eastern avenue, so as to make Jef- ferson street between Michigan street and Eastern avenue a continuation of that pai't of Jefferson street which was west of Mich- igan street, the north line of Jefferson street would be 8 feet and 3 inches north of the north line of the present sidewalk, and would have the location claimed for it by the city. It is also claimed by appellants that their contention as to the location of the north line of Jefferson street is sustained by the plat of Matteson's subdivision of the north half of said block 17. But it is never- theless a fact that appellee and the other purchasers named, whose interests he now holds, took possession of their lots and built their houses, and built their walls and fences, upon the line pointed out by their grantor, Matteson, who then owned the ground, as being the north line of Jefferson street, and in which the stakes by which they were guided were set up by Matteson's surveyor. By the terms of the act then in force, "The plat or map when made out, certified, acknowledged and recorded * * * shall be deemed in law and equity a suffi- cient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed." Gross' St. 111. 1871, p. 102. If, therefore, the plat of Matteson's subdivision vested in the city the title to Jefferson street, according to the location and dimensions of that street as indicated upon the plat, it was only after such plat was acknowledged and recorded. But ap- pellee's interest was acquired, and his pos- session was taken, and his house, wall, and fence were erected, in the manner stated, some six years before the plat was acknowl- edged or recorded. Even if the surveyor employed by Mattos^on made a mistake in putting the stakes 8 feet south of the proper line, still such error could not be corrected by the city, more than 40 years after ap- pellee so acquired his title and obtained his possession, by forcing the location of the sidewalk 8 feet further north, to the proper line. Matteson, being the owner of the land, had the right to manage and disixise of it as he saw proper, and had a right to locate the street where he saw proper. The stakes, which were driven in the line pointed out by him, and made by his surveyor, were definite and fixed monuments, while a plat, indicating courses, distances, and quantities, is but a description or evidence assisting in determining the monuments. Where a par- ty lays off lots on his own ground, which are marked by stakes or other visible monu- ments, and conveys with reference to such boundaries, the grantee will take the same according to the line as actually run and established, although the grantor may have been mistaken as to the correct location of the line. The fact of such mistake affords no reason for changing the boundary es- tablished by him in making his conveyance, and such a change woulJ be manifestly un- just where parties have acquired rights ex- tending over a period of more than 40 years. Under such circumstances, the location of the street as it was originally made, and as it has been occupied and used for so long a period, cannot be disregarded, and new lines cannot be established. A grantee has a right to the land as located by the grantor. Lull V. City of Chicago, 68 111. 518; City of Mt. Carmel v. McClintock, 155 111. 612, 40 N. E. 829; Fisher v. Bennehoff, 121 111. 426, 13 N. E. 150. We are, moreover, of the opinion that the city is equitably estopped from tearing up the present sidewalk and erecting it further north by reason of its acts of recognition of the present location of the sidewalk, as such acts have been above described. Its con- struction of a sidewalk upon the line of the present sidewalk, its acceptance of the side- walk already constructed by appellee, the building by it of a culvert up to the present line of the sidewalk, the graveling by it of the street along the present line of the side- walk, and its levy of an assessment for the purpose of paying the cost of building the walk as at present located, are such posi- tive acts as work an estoppel. While it can- not be maintained that, as respects public rights, municipal corporations are within or- dinary limitation statutes, yet the principle of estoppel in pais may be applied to such acts by a municipal corporation as have been above designated. In applying the principle of an estoppel in pais, the courts are left to decide the question, not by the mere lapse of time, but by all the circum- stances of the case, and to hold the public estopped, or not, as right and justice may re- quire. Railroad Co. v. City of Joliet, 79 111. 25; City of reoria v. Johnston, 56 111. 45; City of Mt. Carmel v. McClintock, supra; Martel v. City of East St. Louis, 94 111. 60. "When a municipal corporation threatens to remove plaintiff's fences, as an alleged en- croachment upon a street, plaintiff having for thirty years been in the undisturbed possession of the premises, — the city having used no portion thereof for a street, and of- fering no compensation to plaintiff, and no means of adjusting his compensation for the proi>erty to be talcen, — an appropriate case is presented for relief by injunction." High, Inj. § 584. A city may be restrained from encroaching upon the property of a private citizen, even under the pretense of pi"e- venting the obstruction of a street. High, Inj. §§ 349, 1247, 1272. 1274; Carter v. City of Chicago, 57 111. 283; City of Peoria v. Johnston, supra. In view of the considerations herein pre- sented, we are of the opinion that the decree of the court below, granting a peruianent injunction against the removal of the side- wallc north of its present location, was prop- er. Accordingly the decree of the circuit court is affirmed. Affirmed. DELIVERY 255 MILLER et al. v. MEERS ct al. (40 N. E. 577, 155 111. 284.) Supreme Court of Illinois. April 1, 1895. Error to circuit court, Will county; Dor- rance Dibell, Judge. Bill by America Miller, Arvilla Withrow, Edith Gertrude Bissell, Alcyone Bisscll, lone M. Sings, Martin C. Bissell, and William Bis- sell against Robert Meers and Asa F. Mather (survivors of William A. Strong), executors and trustees under the last will and tcs'ament of Mai-tin C. Bissell, deceased, William Grin- ton, and others. Defendants obtained a de- cree. Complainants bring error. Reversed. Plaintiffs in error, the seven children of William P. Bissell, filed their bill in equity in the circuit court of Will county against de- fendants in error, as executors and tnistees under the last will of Martin C. Bissell, de- ceased, and against William Griuton and others, to compel the delivery to complain- ants of a deed executed to them by said Mar- tin, in his lifetime, for certain real estate situated in Joliet, called the "Bissell Hotel Property," and to confirm and establish the title to said property in said plaintiffs. Wil- liam P. Bissell, also, was made defendant to the bill. The executore filed a cross bill to compel the cancellation and delivery to them of said deed, and also of a life lease executed at the same time by said Martin to said Wil- liam P. Bissell and wife. Issues wei-e made on the bill and cross bill, and on a hearing the circuit court decreed that the bill be dis- missed, and that the relief prayed by the cross bill be gi-auted, and that the complain- ants pay the costs. This writ of error is brought by the complainants to reverse that decree. The principal facts set up in the pleadings and established by the proofs are, in sub- stance, as follows: Martin C. Bissell, the own- er of the property in question, resided in Jol- iet, and was a man of considerable wealth. His wife was living, but they had no children. He had permitted his brother William P. Bis- sell, the father of plaintiffs in error, who was possessed of small means, to occupy and run the hotel property for a number of years upon terms disclosed only by the testimony of said William, held by the court to be incompetent. The evidence does not, however, disclose that William had ever paid, or agreed to pay, any rent. In 1875, while William, with his wife and three minor children, were thus occupy- ing the property, his adult children having established themselves in other parts of the counti-y, Martin and his wife executed and acknowledged a warranty deed of the hotel property to plaintiffs in error, naming them, and as the children of said William, for the expressed consideration of one dollar and natural love and affection, and at the same time Martin executed and delivered to Wil- liam and his wife a life lease to the SJime property. The deed recited that it was sub- ject to the lease. The deed was drawn by the defendant William Griutcn at Martin's re- quest. Grinton also attested its execution, as a witness, and, as a notary public, took the grantors' acknowledgment. The certifi- cate was in the usual form, certifying that the grantors acknowledged that they signed, sealed, and delivered the said instrument aa their free and voluntary act, for the uses and purposes therein expressed. The lease was executed by Martin, as lessor, and William and his wife, as lessees; was delivered to William and his wife; purported to be for :he term of their "natural lives," and upon the consideration that the lessees should pay all taxes, keep the premises in as good con- dition as when received, and keep the build- ings insured,— three-fourths of the insurance for the benefit of the lessees, and one-fouiUi for their children, the plaintiffs in en-or. The lease also contained the following: "And 't is further expressly agreed by and between the parties hereto that in case said premises should at any time be sold for taxes or as- sessments, and said party of the second part should fail to redeem said promises from such sale at least three months before the time of redemption from said sale expires, or if said parties of the second part shall both at any time cease to pei-sonally occupy said premises (loss or damage by tire or inevitable accident excepted), then and in either of said last-nam- ed events the said children of said William P. Bissell above named shall have the right, at their election, to declare said term ended, anything herein to the contrary notwithstand- ing, and the said demised premises, or any part thereof, to enter, and the said party of the second part, or any other person or per- sons occupying in or upon the same, to ex- pel, remove, or put out, using such force as may be necessaiy in so doing." The deed and lease were dated January 11, 1875, but the acknowledgment was taken March 31, 1875. Some time in 1877, because of some do- mestic trouble, William's wife left him, and went to ft distant city to live with her sister, taking some of their younger children with her, and about six months thereafter William left the i^-emises, also, and removed to Chi- cago; he and his wife having permanently separated, and neither of them, nor their chil- dren, having since then occupied the property. When Martin C. Bissell and wife executed the deed to plaintiffs in error, he left it witli Grinton, the notary, and told him to take it and take care of it, giving no other directions respecting it. Grinton put it in an envelope, and placed it in the safe in the ottice where he and Martin were engagehere a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking wiien con- science requires iiim to be silent; or, as it is otherwise expressed, gtii tacet, consentire videtur; qui potest et debet vetare, jabet si non vetat. In Wendell v. Van Bensselaer, 1 Johns. Ch. 344, Chancellor Kent, at page o54, says: "Tliere is no principle better es- tablished in this court, nor one founded on more solid foundations of equity and public utility, than that wliich declares that if one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such per- son. It would be an act of fraud and injus- tice, and his conscience is bound by this equitable estoppel." Tiiis doctrine was ap- proved by Chancellor Pknnington in Ross v. Kaiiroad Co., 2 N. J. Eq. 422, at page 4o4; by the court of appeals in Doughty v. Dough- ty, 7 N. J. Eq. 643, at page 650; and luis since been recognized in many cases in this court, and was acted upon by Chief Jus- tice Beasley, sitting for the chancellor, in Erie By. Co. v. Delaware, L. & W. li. Co., 21 N. J. Eq. 283, at page 288 et seq., and by A^ice- Chancel lor Bikd in Swayze v. Carter, 41 N. J. Eq. 231, 3 Atl. Bep. 706. The only question that has ever been rarsed as to the value of tiie maxim is that its ap- plication to particular cases is sometimes dif- ficult and embarrassing, and requires great care and discrimination. See Philhower v. Todd, 11 N. J. Eq. 312, at page 315. But this may be said of all the fundamental max- ims and principles of equity, and must not deter the equity judge from applying them where properly api)l;cable. Several canons have been suggested by the judges as guides in this work, but, in construing them, we must not lose sight of the facts in the partic- ular case in which they have been enunciated, and must interpret them accordingly. Lord CuANAVORTH, in the house of lords in Rams- den V. Dyson, L. R. 1 H. L. 129, at page 141, after stating the principle with great clear- ness, says that, in order that the maxim shall be applicable to a case of this sort, viz., the estoppel by expenditure of money on land, it must have three features— Fi/-6^ the person expending the money must honestly suppose himself to be the owner of the land; and, secondly, the real owner, who encourages the expenditure by his silence, must know that the land belongs to him, and not to the other; and, thirdly, that the other is acting on an erroneous belief as to its ownership. The canon was applied by Chancellor Run- yon in Kirchner v. Miller, 39 N. J. Eq. 355. With regard to tiie first of these requisites, I have already shown tliat Mrs. Smith and her grantee, the complainant, were fully justified in supposing, and did actually suppose, that the land belonged to them. But counsel for the defendant insisted that both Mrs. Smith and complainant are chargeable with notice of the record title of defendant, and argued that they had no right in the face of it to suppose that they had title. I cannot accede to tills argument. In the first place, I do not understand that the strength of complain- ant's proposition depends at all upon her want of knowledge that defendant held the legal title to this land. If she be chargeable with full knowledge of all the record discloses in that respect, still the question remains, were not she and her mother justified in supposing that this strip, reclaimed, so to speak, by the municipal action from an ancient highway, became, in some way, and as a result of those proceedings, her property? But if the case were wanting in that element, still I do not think defendant's position tenable. Courts of equity have in many cases given parties the benefit of an honest supposition as to ti- tle, where the slightest examination of the record or other equally available source of in- formation would have disclosed their error. In fact, to exclude the application of the max- im from cases where the party has implied or constructive notice of title from the rec- TITLE BY ESTOrPEL. 279 ord, would confine its applic;ition to a very narrow field. Absence of notice, both act- ual and constructive, of the adverse title, would, in many cases, give tlie party the benefit of the plea of bona fide purchaser without notice, and dispense with the neces- sity of setting up estoppel in pais. Chan- cellor Zabriskie in Deilett v. Kemlile, 23 >r. J. Eq. 58, held a party entitcd to equitable aid against a judgu)ent creditor of his gran- tor where the judgment creditor had stood by, and, without notice, permitted the former to build on the property in the honest belief that it was free from incumbrance, when he could have discovered the judgment by a search. In Town v. Needham, 3 Paige, 545, the title of Harvey, one of the defendants, to an undivided one-fourth of the premises at the death of his grandmother, clearly ap- peared by the will of the former owner, which was a part of com plai mint's chain of title; but iie w^as granted relief against Har- vey, on the ground that he bought and made improvements in the honest supposition that the other tenants in common, through whom he derived title, had in some way acquired and were the owners of the whole title. So in Brown v. Bo wen, 30 N. Y. 620, the title, which was barred by estoppel, was found on the public record. In Storrs v. Barker, 6 .Johns. Ch. 166, the plaintiff claimed under the devise of a married woman to her hus- band, and was chargeable with the knowledge that it was void; and it was held that he was justified in supposing that the title had been validated by some action between thedevisee and the heir at law, and the heir at law, hav- ing stood by and encouraged the purciiase by plaintiff from the devisee, was held estopped. In Chapman v. Chapman, 59 Pa. St. 214, where the plaintiff held under a long lease, and the defendants held in severalty parcels of the whole tract under subsequent convey- ances from the same original owner, and plaintiff was held estopped from setting up liis lease by his positive encouragement as to defendant Chapman, and by his mere silence as to defendant Gansamer, I infer that plain- tiff's lease was a matter of record; since, if not recorded, defendants could have pleaded that they were bona fide purchasers for value without notice, and need not have relied up- on the estoppel. The position that, in general, record notice of the title is sutficient to defeat the estoppel, where it rests on mere silence, receives qual- ified support from Prof. Pomeroy in his trea- tise on i-.quity Jurisprudence, § 810; and also from Mr. Bigelow in his last edition of his treatise on Estoppel, 594. I have examined the cases cited by these authors in suj)portof the text, and they are all distinguishable from the case in hand. They each lack one of its important features, viz., that the person sought to be estopped by his silence knew, or had reason to suppose, that the person ask- ing the protection of the estoppel was acting in good faith, on an erroneous supposition as to the title. In Fisher v. Mossman, 11 Ohio St. 42, the contest was between a mortgagee and the j)uichaser of the equity of redemp- ion at slu'ii.l's sale under execution against the owner of the equity. The mortgagee was present at the sheriff's sale, and did not give notice of his mortgage, which was recorded, and it was held that he was not estopped by his silence, in the absence of any notice or reason to suppose that the purchaser was ig- norant of the existence of his mortgage. In Knouff v. Thompson, 16 Pa. St. 357, it ap- peared alfirmatively that the defendant knew of plaintiff's claim, and that his own tiMe was defective, and, moreover, the imprOiC- ments made were of very slight value. In Hill V. Epley, 31 Pa. St. 331, the cont-st was between one tenant in connnon and tlie pur- chaser at sheriff's sale of the interest of the other tenant in common, und^T judgment and execution against him. The matt r re- lied upon in estoppel by the purchaser at sheriff's sale was that the grantor of the par- ty now claiming against him had been pres- ent at the sheriff's sale, and had failed to give notice of his title. When the case was first before the court, in 7 Watts, 163, the opinion and decision was favorable to the purchaser at sheriff's sale, and tlie remarks of the court and citation of authorities found on page 168 in support of the estoppel are valuable. On a retrial a verdict was rendered in accordance with this opinion in favor of the purchaser at sheriff's sale, and against the owner of the outstanding half interest, and judgment thereon was reversed by the court in banc, in an oi)iuion by Strong, J. On page 334, 81 Pa. St., he says: "It seems also to be well settled that silence in some cases will estop a party against speaking afterwards. Thus, if one suffers another to purchase and expend money upon a tract of land, and knows that that otiier has a mistaken opinion respecting the title to it, and does not make known his claim, he shall not afterwards be permitted to set up a claim to that land against the purchaser. His silence then becomes a fraud. But silence, without such knowledge, works no estoppel. It is only when silence becomes afraud thatit postpones." And again, (page 335:) "Clearly, if David Witherow [the plain- tiff's grantor and one of tiie tenants in com- mon] had not attended the sheriff's sale, nothing would have been required of him. after he had his deed upon record. This is conceded. But, if it be admitted that his presence at the sale imposed upon him the duty of giving other notice than that which his recorded deed furnished, and which was consequently known to Epley, it must be be- cause he saw that the purchaser was still acting under an erroneous belief that the whole title was somehow in Samuel, [the other tenant in common, and defendant in the execution.] Nothing else could make his silence work a fraud. But how could he see that? And how is such knowledge af- firmatively brought home to him? There is no evidence of any such erroneous belief. The laud was being sold as the property of 280 TITLE. Samuel Wiiherow, it is true. But Samuel liacl an interest in tlie land. Neitlier tlie ex- ecution nor tlie sheriff nor ihe crier asserted that that interest amounted to the entire fee- simple, or to an estate in severalty. The sheriff had no right to define what the inter- est was. The writ was just such a one as it would have been if it had been known by every pt^rson present at the sale that Samuel Witherow owned but an undivided moiety. It is impossible under such circumstances, to see how David's silence could be construed into an admission that Samuel owned the whole, because there was no assertion by the writ, by the sheriff, or by any one that he did. It is equally impossible to discover how David could have supposed that Epiey was bidding under an impression, for there was notiiing to warrant it, and a deed on record showing the contrary, of the contents of which not only the law presumed, but lie had a right to presume, every bidder knew. If the sheriff had offered for sale a tract of land belonging to David in severalty, in which Samuel had no interest, the consequences of silence might have been different." I bt-lieve this to be a correct statement of the doctrine, and I conceive that it fully dis- poses of the attempt to avoid the effect of the silence in this case by an appeal to the record title. The question is not so much what the party setting up the estoppel might or ought to have known or supposed, as what he actually did know and suppose, to the knowledge of the other party. The New York case, (Rubber Co. v. liothery, 107 N. Y. 310, 14 N. E. Rep. 269,) much relied up- on by defendant, is clearly distinguishable. It lacks the feature of the one party acting on the mistaken supposition that he owned the other party's land, and the other parly knowing of the mistake. The case was this: Defendants owned both sides of a stream at a certain point. Further down they owned but one side, while the plaintiffs owned the other side. Defendants built a dam across the stream above on tiieir own land, and dug a race-way from it on their side of the stream, and built works, which, when put in use, re- sulted in diverting the whole stream, and carrying it down past the plaintiff's land, be- fore it was returned to its natui-al channel. Plaintiff saw these works erected, and made no objection. Defendants set their works in motion, and diverted more than half the waters of the stream, and for that diversion plaintiff brougiit suit. Now, as defendants clearly had the right to divert one-half the water of the stream, and it did not appear that a beneficial use of the works could not be made with the one-half, or that plaintiff had notice of anything of the sort, it is clear that there was nothing in all that plaintiff saw defendants doing to lead plaintiff to sup- pose either that defendants supposed that they had a right to divert all the water, or that they intended tfo do so, or must neces- sarily do so in order to enjoy their works to their full extent; and besides, it does not ap- pear that the defendants supposed that they had a right to divert all the water, or that, as before remarked, the plaintiff knew or supposed that the defendants w-rt acting on that supposition. The case is somewhat in line with Cooper v. Carlisle, 17 N. J. Eq. .525, at page 535, In Kirchner v. Miller, 39 N. J. Eq. 355, the complainant made a mistake of a few inches in surveying the line between his land and the defendant's, for which mis- take the defendant was not responsible, and of which he was not aware until after com- plainant had built. The defendant could not be guilty of any acquiescence unless he knew that the complainant was building over on his land, which he did not. The case lacks the features mentioned by Lord Cranworth. Moreover, the complainant was able to re- store himself at a trifling expense, as shown by the opinion. Brant v. Coal Co., 93 U. S. 326, is also clearly distinguishable. There a party, who held a life-estate only, conveyed and took back a purchase-money mortgage which was assigned to the owner of the tee in remainder, who foreclosed. The deed of assignment recited the title truly. Defend- ant's grantor purchased at the foreclosure sale. Plaintiff was the owner of the remain- der, and at the death of the life-tenant brought suit in equity to restrain mining, etc. De- fendant set up estoppel arising out of the foreclosure, and the court below dismissed the bill on that ground. This decree was re- versed on appeal, by a divided court. Jus- tice Field, at page 335, says: "The pur- chaser was bound to take notice of the title. He was directed to its source by the plead- ings in the case. The doctrine of caveat e.m2)tor applies to all judicial sales of this character;, the purchaser takes only the title which the mortgagor possessed. And here, as a matter of fact, he knew that he was ob- taining only a life-estate by his purchase. He so stated at tlie sale, and frequently aft- erwards. There is no evidence that either the complainant or Hector Sinclair ever made any representations to the defendant corpora- tion to induce it to buy the property from the purchaser at the sale, or that they made any representations to any one respecting the title inconsistent with the fact; but, on the contrary, it is abundantly established by the evidence in the record that from the time they took from the widow the assignment of the bond and mortgage of the Union Potomac Company, in 1854, they always claimed to own seven-eighths of the reversion. The assignment itself recited that the widow had owned, and had sold to that company, a life- interest in the property, and that they had acquired the interest of the heirs." Brewer V. liailroad Co., 5 Mete. 478, was an action of ejectment, where the party was precluded from setting up equitable estoppel. In Bald- win V. Kichman, 9 N. J. Eq. 394, Baldwin claimed title by conveyance from Benjamin Kichman, and was defeated in an action of ejectment by the heirs of Jeremiah, brother of Benjamin. Jeremiah being the sole owner TITLE BY ESTOPPEL. 281 •of the fee of the land in question and other lands, but sup|)osing that lie owned them as tenant in couunon with his brother Benja- min, applied to the orphans' court for and procured partition, in wh'ch the lot in con- troversy was set off to Benjamin, who en- tered, and, after the mistake was discovered, ■conveyed to Uichman, who purcliased with full notice of the true state of the title. The bill prayed relief against the ejectment. Chancellor Williamson dismissed it on two grounds: First, (page 398,) that the bill "does not allege that I3enjamin took posses- 'sionofthe land ami improved it under the impression tiiat tiie land was his own, nor is there any alleviation that it was the conduct of Jeremiah tliat induced liim to take posses- sion and make the improvements. From anytlnng tliat appears in tlie bill to the con- trary, he knew tliat Jeremiah was acting un- der a mistake, and took advantage of it." Second, (page 399,) that there was an allega- tion in the bill, but no admission or proof, tl;erty of the owner of the adjacent laud to which it is at- tached. On a great public highway, like the Mississippi, floating an immense commerce, and bearing it to evei-y part of the globe, purchasers must have obtained lands for the beneficial use of the river as well as for the land. Can it be presumed that the United States would make grants of lands bordering upon this river, with its turbulent current, and subject to constant change in its banks by alluvion upon the one side and avulsion upon the other, and then claim nil accretion formed by the gradual deposition of sand and soil, and deprive the grantee of his river front? If he should lose his entire grant by the washing of the river, he must bear the loss, and he should be pei-mitted to enjoy any gain which the ever-varying channel may bring to him. If a great government were to under- take, under such circumstances, to dispossess its grantee of his river front, the attempt would be akin to fraud, and it would lose the respect to which beneficent laws and the protection of the citizen would entitle it. We then assume that the act of congress of 1796 (1 Stat. 468, § 9), which declares all navi- gable rivers in a certain district public high- ways, has no bearing upon the questions to be considered. The riparian owner has a right to the alluvion, whether the stream be navigable or unnavigable. Blackstone says (book 2, p. 262) as to lands gained from the sea by alluvion, where the gain is by little and little, by small and impercepti- ble degi-ees, it shall go to the owners of the land GATES.R.P.— 19 adjoining. "For de minimis non curat lex; and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a recipro- cal condition for such charge or loss." The same reasoning applies, with all its force, to the lands abutting upon the Mississippi river. In Middletou v. Pritchard, 3 Scam. 510, this court said: "All alluvions belong to the riparian proprietor, both by the common and civil law." In the case of Rex v. Yarborough, 3 Barn. & C 91, land gained from the sea by alluvion or projection of extraneous matter, whereby the sea was excluded and prevented from over- flowing it, was adjudged to be parcel of the demesne lands of the adjacent manor. This question has been discussed with pro- found research and great ability by the courts in Louisiana, as to the accretions upon this same river, and the law clearly announced. In Municipality No. 2 v. Orleans Cotton- Press, IS La. 122, it was declared that the right to future alluvial formations was a right inherent in the property, an essential attribute of it, the result of natural law, in consequence of the local situation of the laud; that cities as well as individuals had the right to acquire it, pere alluvuouis as riparian proprietor; and that the right was founded in justice, both on ac- count of the risks to which the land was ex- posed, and the burden of protecting the estate. The court further assimilated the right to tiio right of the owner of lands to the fruits of u tree growing thereon, and said: "Such an at- tempt to transfer from the owner of the land to the city the future increase by alluvion, would be as legally absurd as if the legislature- had declared that, after the incorporation of the city, the fruits of all the orange trees with- in its limits should belong thereafter to the city, and not to the owners of the orchard and gardens." The same principle was declared in Banks v, Ogden, 2 Wall. 57, as applicable to Lake Michi- gan. See, also. Mayor, etc., of New Orleans v. U. S., 10 Pet. 662; Jones v. Soulard, 24 How. 41. The same doctrine is fully declared in a re- cent case: Warren v. Chambers, 25 Ark. 120. To determine the title to the accretion, we must ascertain the locality of the land of the adjacent owner. We need not enter ujwn a discussion of the laws of congress and of the state, by virtue of which the county claims title, if the land previously granted by the Unit- ed States was bounded by the river, and the accretion is attached to it. Hilgard, the surveyor, testified that the ac- cretion was all west of the Condaire tract. The only portion of the field notes we desire to call attention to is the following: "To a post on the westerly side of the river L'Abbe, or Cahokia creek, thence down the said river ov creek, with the different courses thereof," anr^. "thence N. 85 deg. W. 174 poles to a post on the bank of the Mississippi river, from whicl> thence N. 5 deg. E. up the Mississippi river,, and binding therewith," (^jassing the south- 290 TITLE. westerly corner of Nicholas Jarrot's survey No. 579, claim No. 99, at 6 poles,) "551 poles and 10 links, to a post northwesterly corner of Nicholas Jarrot's survey No. , claim No. 100." This survey was made in 1815. P^rom the copy of the plat of it, from the custodian of the United States surveys, it will be seen that the line along Cahokia creek meanders with the stream, which was sinuous, and hence the call in the notes, "down the said creek with the different courses thereof." A further examination of the plat will show that, though the line from "a post on the bank of the Mississippi river," "to a post northwester- ly corner of Nicholas Jarrot's survey, claim No. 100," is a straight line, the river bank, as indicated by the plat, was also straight in 1815. The Condaire survey embraces three militia claims, which had been surveyed before, and which were confirmed to Jarrot. One of the Jarrot surveys begins on the bank of the Mississippi, and thence to a point in the river, etc. The defendants traced title from patents con- firmatory of these several surveys, and they al- so proved title to "Bloody Island," which, when surveyed in 182-1, was three-fourths of a mile north of the tract in controversy. In behalf of the county, it is assumed that the patent to survey 579 contains no indication that the river is the boundary; that the west line of the Condaire claim, being the line next to the river, is identical with the west line of the militia claims; that Condaire took no por- tion of the militia claims, but only the frac- tions east of them and between them and Ca- hokia creek; that the lands granted were bound- ed by specific lines, and not by the river, and therefore the grants are limited grants, and tlie land in dispute is outside of their boundary lines. Concede that the Jarrot survey did not make the river the boundary, by specific call, yet its beginning was on the bank of the river, op- posite St. Louis, and thence it followed the river to a point in it. Hilgard testified that this survey was on the old bank of the river. It is, then, evident that at this time, which was some years prior to the Condaire survey, there was no land between the western line of the Jarrot survey and the river. All the plats introduced in evidence show that the river bank was straight, and the point in the river must have been made for the purpose of obtaining the bearing of the witness tree, a sycamore, 250 links from the point. It is manifest that the river was the boundary, and whether the grant was bounded by the river, or on the river, can make no difference as to the ques- tion involved. The grant may be so limited as not to carry it to the middle of the river, and yet not exclude the right to the alluvion. A large number of cases have been cited by one of the counsel for the county, to establish that a grant is not carried to the centre of a stream, but stops at the bank, if the grantor describes the line as upon the margin, or at the edge or shore, and that these terms become monuments, and that they indicate an inten- tion to stop at the edge or margin of the river. This may be good law, and not affect the right of the defendants. They do not claim the bed of the stream, and the proof shows that the river does not ran over the laud in dispute at ordinary stages of water. Their claim, if established, does not obstruct the river, or interfere with its free navigation and use by the public. But the Condaire survey not only covers the Jarrot surveys, but extends beyond them. It not only takes any fractions between, the Jarrot surveys and Cahokia creek, but the land, if any, between their western line and the river. The Condaire survey run up the river and binding therewith, and passed the southwesterly corner of the Jarrot survey. No. 579, at 6 poles. Lan- guage could not make it more plain that the western line was bounded by the river, and the plats confirm this view. The only construction to be given to these grants is, that the United States had conveyed the land to the bank of the Mississippi. It follows that the grantees were riparian proprie- tors, and are the owners of the alluvial forma- tions attached to their land». Unless such construction be given and ad- hered to rigidly, almost endless litigation must ensue from the frequent changes in the current of the Mississippi, and the continual deposits upon one or the other of its banks; the value of land upon its borders would depreciate, and the prosperity of its beautiful towns and cities would be seriously impaired. Counsel say, at the time the locations were made there was no advantage of river front, no wharfage and no wood yards This may be true, but even at this early period the grantees must have realized the vast importance of the Mississippi to them, and to all the people of the states bordering upon it, in the grand fu- ture soon to be unfolded. They must have seen the necessity, and accepted the grants for the purpose of securing an approach to the river. From the proof, before 1819 a ferry was established across the river near to the land in dispute, and has been since in constant opera- tion. Before the grant of the swamp and over- flowed lands to the state, in 1850, a city had sprung up on the Missouri side of the river, and a prosperous village was growing on the Illinois shore. Before the survey by the county of the swamp lands, in 1852, a charter for a railroad had been granted by the state, which resulted in the construction of a road from Terre Haute, in the state of Indiana, to Illinois- town. Prior to the grant made by the United States in 1870, as shown by the plat offered in evidence, a number of railroad tracks had been constructed upon the ground formed by accretion, and an elevator erected and dykes for the use of wagons, and a large expenditure of money made by the ferry company for the preservation of the banks recently made. It needed no prophetic eye to foresee, prior to the year 1850, these grand improvements which bring the products of an empire to the father TITLE BY ACCRETION 2yi of waters. Thoir absolute necessity, and conse- quent construction, as an outlet for our im- mense produce, had been known for more than a quarter of a century before their completion. Their usefulness would be greatly crippled, and the public thereby seriously suffer, if ready ac- cess to the river was denied. It would be a strained construction, to hold that, in making these grants, the United States reserved all accretions, and thus to deprive these proprietors of ferry privileges and the beneficial enjoyment of the river. It is further contended that the lands are not accretions, as they were made by artilicial, and not natural, means. It is not at all certain, from the proof, that the accretions were entirely the result of artificial structures, or that they would not have been formed without them. The constiniction of coal dykes facilitated the forma- tion, and the soil was prevented from washing away by the expenditure of money by the ferry company. Jonathan Moore, who had known the river since 1813, testified that the accretions had commenced to form before the construction of the dykes, and ^NlcClintock and Jarrot testified to the same effect. Concede, however, that the dykes, to some ex- tent, caused the accretions; they were not con- structed for such purpose, and appellants had nothing to do with their erection. They were built for the accommodation of the public, and to secure an approach to the ferry boats, and the city of St. Louis did some work to pre- serve its harbor. Improvements were also made by the United States to throw the channel of the river towards the city. The fact that the labor of other persons changed the current of the river, and caused the deposit of alluvion upon the land of ap- pellants can not deprive them of a right to the newly made soil. Chancellor Kent, after declaring the common law doctrine, that grants of land bounded on the margins of rivers, carry the exclusive right of the grantee to the centre of the stream, un- less there is a clear intention to stop at the edge, says: "Tlie proprietors of the adjoining banks have the right to use the land and water of the river, as regards the public, in any way not inconsistent with the easement; and neither the state nor any other individual has the right to divert the stream and render it less useful to the owners of the soil." 3 Kent, Comm. 427. If portions of soil were added to real estate already possessed, by gradual depositions, through the operation of natural causes, or by slow and imperceptible accretion, the owner of the land to which the addition has been made has a perfect thle to the addition. Upon no principle of reason or justice should he be de- prived of accretions forced upon him by the labor of another without his consent or con- nivance, and thus cut off from the benefits of his original proprietorship. If neither the state nor any other individual can divert the water from him, artificial structures, which cause de- posits between the old and new banks, should not divest him of the use of the water. Other- wise, ferry and wharf privileges might be utter- ly destroyed, and towns and cities, built with sole reference to the use and enjoyment of the river, might be entirely separated from it. In Godfrey v. City of Alton, 12 111. 29, the public landing had been enlarged and extended into the river, both by natural and artificial means, and this court held that the accretions attached to and formed a part of the landing. In New Orleans v. U. S., 10 Pet. 6G2, the quay had been enlarged by levees constructed by the city to prevent the inundation of the water, and the court held that this did not im- pair the rights of the city to the quay. In Jones v. Soulard, supra, the intervening channel between the island and the Missouri shore had been filled up, in consequence of dykes constructed by the city, and the riparian owner succeeded. In the case at bar, the accretions have not been sudden, but gradual, as we gather from the testimony. The city of St. Louis, to pre- serve its harbor, and to prevent the channel from leaving the Missouri shore, threw rock into the river, and the coal dykes were made to afford access to boats engaged in carrying across the river. The ferry company protected such accretions by an expenditure of labor and money. The accretions, then, are partly the result of natural causes and structures and work erected and performed for the good of the public. Ap- pellants should not thereby lose their frontage on the river and be debarred of valuable rights heretofore enjoyed. This would be a grievous vrrong, for which there would be no adequate redress. The judgment of the circuit court is reversed and the cause remanded. Judgment reversed. 292 TITLE. TATUM V. CITY OF ST. LOUIS. (28 S. W. 1002, 125 Mo. 647.) Supreme Court of Missouri, Division No. 1. Dec. 22, 1894. Error to St. Louis circuit court; Leroy B. Valleant, Judge. Ejectment by Joseph Tatum against the city of St. Louis. There was a judgment for defendant, and plaintiff brings error. Reversed. J. T. Tatum and Leverett Bell, for plain- tiff in error. Wm. 0. Marshall, for defend- ant in error. MACFARLANE, J. The action is eject- ment to recover possession of a parcel of land in the city of St. Louis fronting 398 feet on the Mississippi river, and having a depth back of 307 feet. The land is claimed by the city as part of its- public wharf. The answer was a general denial and a plea of the statutes of limitation. The case was tried to the court without a jury, and a ver- dict and judgment was rendered for defend- ant, and plaintiff appealed. Plaintiff claims title through concession made to Joseph Brazeau, and confirmation thereof by act of congress in 1836. These concessions were bounded on the east by the INIississippi river, making a frontage on the river of 12 arpens. Plaintiff, who sues as trustee for Mrs. Virginia Lynch, claims title to the land in question as being accretions to the land so conceded and confirmed. Without tracing the title from Brazeau, as was done on the trial, it will be sufficient to' say that in 183G the original concessions were divided into five lots, each of which fronted 398yo feet on the Carondelet road, now avenue, and extended east to the river, and John B. Douchouquette about that time became the owner of lot 4 of said division. At this time the distance from Carondelet avenue to the river was about 1,800 feet, while at the ti-ial it was about 2,800 feet. There was consequently about 1,000 feet be- tween the east line of the lot, which was then the river bank, and the river bank as it is at present. The land in dispute is a part of this added land. In 1839 the west half of all five of these lots was subdivided into an addition to the city. Columbus street, running north and south through the center of these lots, formed the eastern boundary of the addition. In 1850 the title of that part of lot 4 lying between Columbus street and the river was vested as follows: INIrs. Lynch held an estate for life in the wLiole, and an undivided one-fourth of the remainder in fee; and Victoria Douchou- quette, now Victoria Whyte, an undivided three-fourths of the remainder in fee. On May 17, 1870, by proper deeds, the title of Mrs. Lynch was vested in Joseph T. Tatum as trustee for her. Since the commencement of this suit, the interest of Mrs. Lynch has been assigned to Mrs. Whyte, who has been substituted as plaintiff. The evidence showed that as early as 1845 an island, known as "Duncan's Island," formed in the river op- posite the land comprising the original Bra- zeau concession, but it is conflicting as to whether the southern end thereof extended as far south as the lot in question. Origin- ally a part, at least, of the channel of the river flowed between the island and the Missouri shore. This .part of the channel subsequently became a mere slough, and dikes were run out from the main shore, con- necting it with the island. It does not ap- pear that any of these dikes were built as far south as said lot 4. The slough was sub- sequently filled entirely, and the river bank was changed to the east side of the island. As has been said, the land thus formed ex- tended east from plaintiff's original bound- arj^ about 1,000 feet. Main street was es- tablislied over this new-made land, and the river front was declared by an ordinance of the city to be a public wharf. The land claimed in this suit is a part of that dedicat- ed by the city as a wharf, but the evidence fails to show any improvement as such. Much evidence was introduced for the pur- pose of proving that the slough between the island and the shore was filled, and the new land formed, by means of the obstruction o" the water by the dikes, by the constructio- of the Iron Mountain Railroad on trestles along the slough, by filling with dirt taken from other portions of the road, by filling by the city, and constructing the wharf. De- fendant claims on this appeal that— First, it was not shown on the trial that defendant was in possession of the land sued for; sec- ond, that the action is barred by the statutes of limitation; third, that the land is not an accretion to plaintiff's original ti-act; fourth that the city is entitled to an easement in the land for a public wharf by virtue of a license conferred upon it by -the plaintiff in 1851; fifth, that an outstanding title in Thomas Marshall was shown. 1. At the conclusion of plaintiff's evidence in chief defendant prayed the court to non- suit him, for the reason that there was no evidence that it was in possession of the property at the commencement of the suit. This prayer was properly denied, for the reason that the possession of defendant was, by the plea of the statute of limitation, sub- stantially admitted. By this plea defendant states "that it has been in open, notorious, continuous, peaceable, and adverse possession of the premises described in the petition since, to wit, 1850, claiming to be the owner thereof, against the plaintiffs and all other persons." Under this plea, possession at the commencement of the suit must be taken as admitted, and proof thereof was unneces- sary. 2. At the conclusion of the evidence the court made this finding or declaration of law: "The proposition that the land in ques- TITLE BY ACCRETIOX. 293 tion was formed by natural accretions to plaintiff's land on the main shore is not prov- en by the evidence." No other declarations of law was asked by either party, or given by the court. The ground upon which the court reached its conclusion is not left in doubt. Plaintiff's only claim of title to the land was that it was formed by accretions to his original tract. The linding of the court, as stated, involved this proposition of law: If the land in question was not form- ed by natural accretions to his land on the main shore, plaintiff could not recover. If this declaration announced a correct prin- ciple of law, and there was substantial evi- dence tending to prove that the land was not formed by natural accretions, the finding would be as conclusive, on appeal, as the ver- dict of a jury would have been. The evi- dence tended to prove that the land was formed against the bank of the river oppo- site lot 4 by reason of artificial dikes and other obstructions to the water between Duncan's Island and the main shore, and by filling the slough by the railroad company and the defendant city. The weight of the evidence was at least to the effect that nei- ther the island nor slough, at the time the improvements were commenced, extended as far south as plaintiff's land. In view of the evidence, we must assume that the court distinguished between such accretions as are formed by obstructing the flow of the wa- ter or changing the current by artificial means and such as are formed without arti- ficial interference with the banks or the natural flow of the water. The qualification made by the word "natural," as used in the finding, clearly indicates this distinction. We think the law makes no such distinction. The riparian owner is entitled to the land formed by gradual and imperceptible accre- tions from the water, regardless of the cause which produced it. This right he cauuot be deprived of by the acts of others over whom he has no control, and for w^hich he is in no way responsible. It was pertinently said by Mr. Justice Swayne, in St. Clair Co. v. Lovingston, 23 Wall. 66: "It is insisted by the learned counsel for the plaintiff in error that the accretion was formed wholly by ob- structions placed in the river above, and hence that the rules upon the subject of al- luvion do not apply. If the fact be so, the consequence does not follow. There is no warrant for the proposition. The proximate cause was the deposit made by the water. Whether the flow of water was natural or affected by artificial means is immaterial." See, also, Halsey v. McCormick, 18 N. Y, 149; 3 Washb. Real Prop. 353. From tlie evi- dence and declaration of law given by the court it is evident that the court took a dif- ferent view of the law, and we must hold that error was committed in using and ap- plying the word "natural" to qualify the ac- cretions to which plaintiff would be entitled. 3. The evidence showed very conclusive- ly that Duncan's Island formed in the midst of the river man}' years ago, and for a time the navigable part of the river was De- tween it and the main shore. The evi- dence also has some tendency to prove that the land now in dispute constituted a por- tion of the island, or was accretion to the island, rather than to the shore. If, on a new trial, either proposition should be proven true, then plaintiff could have no claim to it as accretion. These principles are well settled in this state. Benson v. Morrow, 61 Mo. 347; Buse v. Russell, 86 Mo. 211; Naylor v. Cox, 114 Mo. 232. 21 S. W. 589; Rees v. McDaniel, 115 Mo. 1 15, 21 S. W. 913; Cooley v. Golden, 117 Mo. 48, 23 S. W. 100. 4. Was the judgment for the right party, regardless of the error committed? Defend- ant, on the trial, read in evidence a paper sign- ed by Mr. and Mrs. Lynch, dated in 1851, which by its terms gave, granted, and conveyed to the city of St. Louis the right to open cer- tain named streets, and authorized the said city to locate and consti-uct, on dry land held or claimed by them, a wharf 265 feet wide, according to designation on accom- panying map, "to have and to hold the same, as the same is established in Ordinance No. 2596, for the use of a wharf, to be under the entire control and management of said city." This paper was duly signed by both Mr. and Mrs. Lynch, but was not sealed or acknowl- edged by either of them. By Ordinance No. 2596, approved March 29, 1851. a wharf from Plum street to the southern limits of the city was established. This wharf, as de- scribed in the writing and ordinance, would include a portion of the land in dispute. The written instrument, not having been acknowledged by Mrs. Lynch, is void as a release or dedication by her. The statute in force at that time gave her no power to con- vey her interest in land the legal estate of which she held, except by deed duly ac- knowledged. Hoskinson v. Adkins, 77 Mo. 538. Whether the instrument w'ould oper- ate as a license, as claimed, need not be con- sidered, as it does not appear that the city has ever taken possession under it, and im- proved the property as a wharf. After 40 years of nonuse we may reasonably assume that the license, if one was given, has been revoked. Indeed, since the date of the al- leged license it very conclusively appears from the evidence that plaintiff has made such use of the property as implies a revoca- tion thereof. The evidence shows quite conclusively that the property was leased by plaintiff for a number of years subsequent to 1851, and was used by the lessee in a man- ner inconsistent with its use by the city as a wharf. The case of Moses v. Dock Co., 84 Mo. 244, is cited by counsel for defendant as sustaining his position that the instru- ment would operate as a license. It will be seen that, though in that case the same in- strument was under review, it was legally 294 TITLE. executed by the parties therein interested, and it was held that, inasmuch as the city took the undisputed possession of the prop- erty, through its lessees, there was a com- plete dedication. It was also declared as a fact, deduced from the evidence in that case, that "the property had at all times since 1859 been treated by all parties as a part of the wharf." There was no question in re- spect to an executory and unused license in that case. "A mere license may exist by parol, and ordinarily is not assignable, and is revocable unless it has been executed, and the party has incurred expense on the faith of it, so that he would be injured by the revocation of it." Baker v. Railroad Co., 57 Mo. 272, and cases cited. 5. It appears from the evidence that in 1855, in a proceeding for partition, that part of lot 4 lying between Columbus street and Front street was subdivided by commission- ers into lots and streets. Front street was at the time the west boundary of the orig- inal city wharf. In 1859, Lynch and wife conveyed to Thomas Marshall certain lots assigned to them by the commissioners, which abutted on Front street. It is insisted now that this conveyance carried the title of the grantee to the river bank, and includ- ed the land in question, and therefore an outstanding title was shown to be in Mar- shall. A plat of the subdivision was filed by the commissioners with their report. This plat showed Front street as having a width of 140 feet, and a wharf adjoining and next the river, having a width of 125 feet. The certificate of the commissioners written up- on the plat declares that Front street and the wharf "are opened for the sole and spe- cial use and benefit of the owners of the sev- eral lots fronting thereon, and are not de- clared or set apart as public highways, or for public use." The land in suit is included in the wharf as shown by the plat. A sale to Marshall was of designated lots. The eastern boundary of these lots was Front street, and the title of Marshall under liis deed did not extend beyond this boundary. Ellinger v. Railway Co., 112 Mo. 526, 20 S. W. 800; City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 22, 21 S. W. 202, and cases cited. Marshall, as the owner of these lots, has a mere easement in Front street and the wharf, but this right is no bar to an action of ejectment against a stranger. City of St. Louis V. Missouri Pac. Ry. Co., supra. The question of adverse possession was not passed upon by the trial court, and we will not consider it here further than to say that the evidence did not show, as a matter of law, that defendant had been in possession of the land for a period sufficient to bar the action. Reversed and remanded. All con- I cur. TITLE BY ACCRETION. 295 PRICE et al. v. HALLETT. (38 S. W. 451.) Supreme Court of Missouri, Division No. 2. Dec. 23, 1896. Appeal from circuit court, Chariton coun- ty; O. F. Smith, Special Judge. Ejectment by Emma Price and others against Daniel Hallett. There was judg- ment for defendant, and plaintiffs appeal. Affirmed. This record presents another case growing out of the erratic action of the Missouri river. The land in controversy is claimed to be a part of a large tract which originally was attached to Saline county, on the south side of the river, but, by the action of the currents, has been transferred to the north banli, and attached to Chariton county. The process of U'an^ifer, plaintiff's claim, was complete in 18SG. The particular portion of said laud forming the basis of this action is the N. 1/2 of the N. 1/2 of the S. W. 14 of section No. 25, towuship 53, range 20. If plaintiffs are riglit in their contention, this laud was originally a part of "Horseshoe Bend," near New Frankfort, in Saline coun- ty, between Glasgow and Brunswicli. This bend included in the government survey parts of sections 23, 24, 25, and 2G, range 20. The E. 14 of section 25 was bounded by the river, and was fractional. The W. 14 was full. A plat of the original survey accom- panies this opinion. The evidence of plaintiffs tended to prove that the river began cutting away all the land on the west side of this bend many years ago, and in 18G9 had cut away all of fractional section 2G, and a large part of the W. 14 of section 25. In that year, the evi- PrESCnT C««^AIfJ. Mo.f^ii of said section 25, and very close to the east line thereof. ■296 TITLE. dence tends to show, one John Cassabeer was in possession of and claimed to own the remaining part of the N. i/^ of the N. % of the S. W. 34 of section 25. On the 1st day of September, 18G9, Cassabeer and wife, by warranty deed, conveyed said last-named tract to Frederick Abrogast, Abrogast was already in possession of and claimed to own the fractional E. 14 of section 25, and some other tracts. He had a farm, with dwelling house and other farm buildings, and had a portion of 't in cultivation. He continued in possession by himself and tenants until the most of his farm, including the 20 acres purchased of Cassabeer, was washed away by the river. Some time prior to 1878 the river had complotelj" submerged the Cassa- beer tract and all of the Abrogast farm, save about 30 acres, and a small strip of the original Horseshoe Bend. About this time the river cut through the bend on its south or Saline county side, .and thereupon sand bars began to form anew the bend on its west side. For some time, however, a chan- nel of the river ran around the north end of the bend; but gradually a large tract had formed to the west, and adjoining the bend, and the river ceased altogether to flow be- tween the bend and the Chariton county shore. These alluvial formations soon be- came valuable cultivating land. The defend- ant and others squatted on these newly-made lands, and their claim thereto is based en- tirely on adverse possession, without paper title thereto. During the time -Abrogast was in possession, to wit, on the 12th day of Feb- ruary, 1873, he executed a mortgage convey- ing said farm, including the Cassabeer tract or land in suit, to Saline county, to secure $1,000 borrowed from said county, and stipu- lated therein "that should default be made in the payment of the principal and interest, or any part thereof, at any time, it should all become due and payable according to the tenor and effect of the bond thereby secured,' and the sheriff of Saline county was author- ized, without suit, to proceed to sell the said mortgaged premises to satisfy said debt and interest thereon." Abrogast made de- fault, and thereupon, on the 4th day of Sep- tember, 1888, the county court of Saline county, by its order of record, found that said Abi'ogast was indebted to said county, for the use of said school funds, in the sum of $859.60, and that default had been made, and thereupon ordered that judgment be en- tered for said sum against Abrogast and his sureties, and made its order of sale of said property in said mortgage described to satis- fy the sureties; and thereafter said order and Judgment were duly certified to the sheriff of Saline county by the clerk of said court, and were delivered to said sheriff on the 6th day of September, 1888, commanding him to levy the same on said real estate, and to sell the same according to law, to satisfy said debt, interest, and costs; and thereupon said sheriff gave 20 days' notice of the time, terms, and place of sale and the real estate to be sold, in a newspaper published in Saline county; and in pursuance thereof, on the 19th day of October, 1891, by virtue of said execution and notice, sold said real es- tate at public vendue to the highest bidder, at the courthouse door in the city of Mar- shall, in said Saline county, during the ses- sion of the circuit court, and at said sale Alfred Rector became and was the highest and best bidder therefor, and the same was struck off and sold to him; and thereupon, said Rector having paid said bid, the sheriff executed, acknowledged, and delivered his sheriff's deed to said Rector. Afterwards said Rector sold and conveyed said real es- tate to Sterling Price, the husband of Emma Price, the plaintiff, and father of the other minor plaintiif s. On the 2d day of January, jlS'JO, and during his lifetime. Price sold ana conveyed one undivided fourth of said lands to plaintiff L. Benecke. The evidence tended to prove that Price took possession of the original Abrogast land thus acquired by him, had part of it cultivated, and pastured a part thereof, and continued in possession un- til the present controversy arose. After the land that had formed west of where the bend once was had become fit for cultivation, a number of persons settled upon different parts of it, principally north and west of the Abrogast land. These parties seem to have squatted upon the land, and made claims to it, without regard to section or other prior lines, but cut out their lines through the willows by common agreement among them- selves. The defendant in this case bouglit the possession and right of one of these squatters, and, while he has pleaded no es- toppel in pais, much evidence was heard in his behalf to establish such an estoppel against the plaintiff Benecke as to his claim for the undivided one-fourth. These squat- ters employed Mr. Carter, the county sur- veyor of Chariton county, to survey these lands for them, which he testifies he did from the original field notes, locating the land in Saline county. Neither Price nor his wife or children had anything to do with this survey, or any of the agreements of these squatters. The evidence tends to show that Frank Nunn was one of these original squatters, and his claim fell on the extreme eastern side of these newly-made lands, where the survey closed. Nunn sold to Hal- lett, the defendant in this case, and showed him 160 acres, of which Nunn claimed to own three-fourths, and Benecke one-fourth, which he said Benecke was to have for serv- ices to the squatters. Prior to the delivery of Nunn's deed to Hallett, a controversy arose about the description of the land. Nunn and Hallett went to Brunswick, to have Benecke write the deed; but, Benecke being absent, they went to Messrs. Ham- mond & Son, and undertook to give the de- scription. This deed was left in Messrs. Hammonds' office, for Mr. Nunn to sign. Be- TITLE BY ACCRETIOX. 297 ■fore it was signed, a mlstalie was discovered an it; and, at their request, Beneclie pre- pared another deed, from a description pre- pared by the surveyor Carter, calling for 44 acres. This deed was executed October 16, 1890, and was left with Beneclve to be re- -corded. Several months after the prepara- tion of the deed, Nunn and Hallett went to Benocke's ofhce to get the deed, and Ilallett was then to pay for it. At tliat time, Hallett and Nunn claimed this deed had been chan- ged since its execution so as to convey a less number of acres than as originally writ- ten. Benecke denied that any such change had been made. Hallett took this deed, con- veying three-fourths of 44 acres, and says they had another deed prepared, but the only other deed in evidence is one executed by Nunn to Hallett, September 21, 1891, aft- er this litigation had been commenced, Xunn, however, placed Hallett in possession under his purchase. The evidence also dis- closes that in the spring of 1888 one Neal settled on a part of this newly-made land, and built a cabin on the tract now in con- troversy. There is a conflict as to how he was there, whether in his own right or un- der Nunn. He claimed to be in his own right, and, after raising a crop, sold his cabin and claim to Price and Benecke, and made them a deed. In the spring of 1891, Price and Benecke leased the S. W. V^ of section •25, township 53, range 20, which includes the land in suit and the Neal cabin, to Jenli- ins and Sullivan, by written lease, of date February 14, 1891. Jenkins and Sullivan re- paired the Neal cabin, and moved into it. About this time, defendant Hallett moved to the Nunn tract. Hallett got possession of the cabin from Jenkins and Sullivan, and Price and Benecke began a suit of forcible entry and detainer. That suit was sent to the circuit court of Chariton county, and, by change of venue, was sent to the circuit court of Callaway county, and was still pend- ing when this case was tried, in Chariton county. Sterling Price died after the trial of the forcible entry ca-se before the justice of the peace. This action of ejectment was commenced by his heirs and L. Benecke against Hallett, was tried in 1893, and re- sulted in a judgment for defendant from which plaintiffs appeal. The jurj^ having found the issue of fact for defendant, the appellants insist that their verdict was in- duced by erroneous and contradictory in- structions. The propriety of the verdict must be determined by an examination and comparison of these declarations of law. A. W. Mullins, L. Benecke, and C. Ham- mond & Son, for appellants. Tyson S. Dines and Crawley & Son, for respondent. GANTT, P. J. (after stating the facts). 1. The first assignment is that the first instruction for defendant is wrong and misleading, in that ■it insti-ucts the jury that plaintiffs failed to show any title whatever to the land in contro- versy, and is in conflict with plaintiffs' second instruction. Said instruction numbered 1, for defendant, was in these words: "The court instructs the jurj' that it appears from the evidence in the case that the patent for the north half of the southwest quarter of sec- tion 25, township 53, range 20, in Saline coun- ty, Missouri, was issued by the government of the United States to one Jonathan Millsaps, and that plaintiffs in this case have entirely failed to show that the title so granted by the government to s.iid Millsaps was ever con- veyed to the plaintiffs, or any of them, or to any person under or through whom said plaintiffs claim." The second instruction for plaintiffs was as follows: "If the jury find from the evidence that the tract of land ia controversy, to wit, th6 north half of the north half of the southwest quarter of sec- tion 25, township 53, range 20, was conveyed to Fred Abrogast, in the year 1809, by John Cassabeer, and that said tract became and was part of an entire tract of land known as the Abrogast Farm,' and described as the southeast fractional quarter, the southeast quarter of the northwest qtiarter of section 25, township 53, range 20, and that said Abrogast, by himself and his tenants, was in the actual possession of said farm, claim- ing and holding the same as his own, ad- versely to all other claimants, and continutd in the actual, open, notorious possession of the same for ten years after the date of said conveyance by said John Cas.sabeer, then the title became vested absolutely in said Abro- gast; and if the jury further find from the evidence that, by the encroachments of the Missouri river upon said land, described above as the Abrogast Farm,' while it was held and owned by said Abrogast or his grantees, a portion of said land, formerly in- cluding the land in controversy, was washed away, but that a portion of said farm re- mains unaffected by the action of the waters of said river, and that afterwards, by the natural action of the waters of said river, the land in controversy has been reformed as originally locat'?d, and also has been de^ posited at and against the Abrogast land re- maining, and not washed away by the river, then said Abrogast and his grantees became and are the owners of said land." We are not able to concur in either of the criticisms of the first instruction given for defendant. In our judgment, it simply tells the jury that the plaintiffs failed to deduce a paper title to the land from the original patentee. Millsaps; and it was a fact tliat they had failed in so doing. It nowhere tells them that plaintiffs might not have acquired a title thereto by purchasing the possessory right, which had ripened into a title in Abrogast. Had the two instructions been connected with the disjunctive "but," any supposed incon- sistency would have van'shed at a glance. Taken together, the cotirt simply instructed the jury that plaintiffs had not shown a paper 298 TITLE. title through Millsaps, the original patentee, but that was not essential to their recover^-, if they found that Abrogast entered the land under claim of title, through his deed from Cassabeer, and had held the open, notorious, adverse possession thereof for 10 years; that such possession would authorize them to re- cover. 2. It is next urged that there is no evi- dence whatever upon which to base defend- ant's second instruction, which was in these Avords: "Before plaintiffs can recover upon the ground of a prior possession of the laud sued for, or any pai't of said land, plaintiffs must not only prove the fact of such prior possession, but must also prove to your satis- faction that such prior possession was exclu- sive and adverse to the possession relied upon by the defendant in this case; and, if you believe that such prior possession relied upon by plaintiffs was not exclusive and adverse to the defendant, and those under whom he claims, then such prior possession of plain- tiffs cuts no figure in this case, and you must find for the defendant." It is objected that there was no evidence upon which to base this instruction, but it seems to us that this is a misconception of its purpose. Is it not, rather, a declaration of what facts plaintiffs were bound to prove in order to recover, rather than any assumption of what defend- ant had shown? Defendant unquestionably had a possession for several years, and the burden, in the very nature of the case, was upon plaintiffs, in the absence of a paper title, to show title by possession of the speci- fic tract in suit. We can discover no legal objection to this instruction. 3. The third instruction for defendant is al- so challenged. It is as follows: "If, from the evidence, you believe that on the 10th day of September, 1890, the defendant Daniel Hal- lett and one Frank Nimn concluded negotia- tions whereby said Nunn agreed to convey to Hallett 120 acres of land, including the land in controversy, at the agreed price of $275; and that said 120 acres was part of the 160 acres, of which plaintiff Louis Benecke owned at that time an undivided one-fourth; and if you further find that said parties undertook to carry out said agreement, and to consummate said sale and conveyance on that day, with the knowledge and acquiescence of plaintiff ^Louis Benecke; and that it was the intention and purpose of said Frank Nunn to convey all his interest and claim in and to said 120 acres to said Hallett by the deed that day written by plaintiff Louis Benecke; and that said Benecke knew and acquiesced in the said intended con- veyance; and that said Hallett paid $275, and accepted the deed so ANTitten, believing at the time that it did, in fact, convey all of Nunn's interest in and to the 120 acres of land; and if you further believe that said Hallett after- wards took possession of said 120 acres of land under his said purchase from Nunn, and contin- ued in possession thereof until the commence- ment of this suit,— then the court declares the law to be tliat said Louis Benecke is estopped and precluded from maintaining this action against f-"iJ Hallett, no matter whether the deed written by him for Frank Nunn on said 10th day of September, 1803, actually and correctly described said land or not." The the- ory of this instruction is that Benecke, one of plaintiffs, is estopped. The objection is now made that this instniction should not have been given, because no such estoppel in pais was pleaded. It has often been decided by this court that estoppel in pais must be pleaded. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Avei-y v. Railroad Co., 113 Mo. 561, 21 S. W. 90. It was so held on an objec- tion to testimony in Bray v. Marshall, supra. In Noble v. Blount it was said there was neither a pleading nor evidence to justify such an instruction. It seems to us this doctrine has ptculiar weight when invoked against the ad- missibility of evidence when no issue of estop- pel has been tendered in the pleadings, or when an estoppel in pais is urged for the first time in this court; but where parties have permit- ted an issue of this kind to be raised by the evidence without objection, and have had full opportunity to try the issue, we are unable to di-aw a distinction between such a case and those cases in this state in which parties have neglected to file replies; and this court has held that it was too late, after trying the case as if a reply had been filed, to claim that the answer was admitted. Had a timely objection l>een made when this evidence tending to show an estoppel was offered as against Mr. Ben- ecke, it would have been excluded, or the court would have permitted an amendment pleading sut-h estoppel; but no such objection appears to have been made at that time, and now that the evidence has been heard, and the instruc- tion given upon it, we think it is too late to raise the question of pleading on that point. We sh.all treat the record now as if the amend- ment had been prayed and permitted. Baker V. Railway Co., 122 Mo. 533, 26 S. W. 20; Dar- rier v. Dan-ier, 58 Mo. 222. It has been held in New York, vmder the Code, that, where an amendment to a pleading might have been or- dered by the court on trial, it may even be amended on appeal, so as to conform to the proofs. Hudson v. Swan, 7 Abb. N. C. 324; Bate V. Graham, 11 N. Y. 237. Was there substantial evidence tending to prove an estoppel against plaintiff Benecke? We think there was. Of course, its credibility was for the jury; but, if credited by them, it tends strongly to show that Mr. Benecke was silent when he should have spoken. If Nunn and Hallett are to be believed, they went to Mr. Benecke, to draw the deed from Nunn to Hallett; that Nunn said Benecke was to re- ceive an vmdivided one-fourth for his fee for sustaining their title, and that the deed was to convey 160 acres of land, and Benecke agreed to take "the "L" 40 of the tract, and offered to sell his share that day to Hallett; that he made no claim of title or ownership from any other source; and that they ti-aded with this under- TITLE BY ACCRETION 29y standing. Even if these semiamphibious squat- ters, who wore evidently illiterate, were mis- taken about the number of acres described by the deed, still there was no claim by Benecke of a title other than that he was to receive from these same squatters for serving them. Surely, he cannot be heard, after remaining silent, without asserting a claim at that time, now to urge another claim which he then had. We do not think the court erred in giving the Instruction on estoppel. 4. Finally, it is urged that all the evidence went to show this was the Abrogast land. Whether this land was the N. y^ of the N. 1^ of the S. W. i/i of section 25, township 53, range 20, was a question of fact. The sur- veyor of Chariton county undertook to survey it as a part of Chariton county, according to Saline county surveys. According to the Chari- lon county survey, there is now laud corre- sponding to the description given in the peti- tion. There was no such section as section 25, township 53, range 20, on the north side of the river. The surveyor of Chariton coimty says the government never svu'veyed the bed of the river. He says this land is evidently all "made land." It shows plainly that the river once ran where it now is. Now, if plaintiffs had title to this land, which all the evidence shows \\'as onc-e entirely wa.shed away, and the river ran where the land now is, it vested In them solely as an accretion to that portion of the Abrogast farm which never washed away. Unless it was formed to such tract as an accretion, plaintiffs have no title thereto. The mere fact that it now forms a tract within lines that once inclosed the original Cassabeer tract will not give title. Hahn v. Dawson (Mo. Sup.) 3G S. W. 233. The question of accretion was submitted to the jury in a most favorable instruction, and the jury found against plaintiffs, and the cir- cuit court approved the finding. We cannot say that there was such a clear case of ac- cretion that the verdict was against the evi- dence. Whether this land was first formed as a sand bar, and, by receding waters, became attached, or whether it was formed by gradual accretion, we confess, is by no means clear to us. Whether It first formed to the Chariton shore, or to the remnant of the old bend, we think, is very uncertain, and hence we accept ihe verdict of the jmy. The judgment is affirmed, BURGESS and SHERWOOD, JJ., concur. 300 TITLE. IVES V. ALLYN. (13 Vt. 629.) Supreme Court of Vermont. Orleans. March, 1841. Ejectment, to recover the seizin and posses- sion of lot No. 68, in Charleston. Plea, not guilty, and issue to the country. Or the trial in the county court, the plaintiff, to show title in his grantor to the land in question, offered in evidence certified copies of the last wills and testaments of Christopher Olney and Sally Ann Olney. It appeared that the original wills were duly proved, approved and allowed in the municipal court of the city of Providence, in the state of Rhode Island, (a court having pro- bate jurisdiction) and that copies thereof, duly certified, after due notice had been given, were filed and recorded in the probate court for the district of Orleans, (in which district the land in question lies.) on the 22d day of June, 1840, agreeably to the statute of this state. The present action was commenced previous to the tiling and recording of said copies in the pro- bate court for the distpict of Orleans. The de- fendant objected to the admission of said cop- ies, but the county court overruled the objec- tion, and they were read to the jury. The plaintiff also read in evidence a deed from Wm. C. Bowen, heir to the devisee of Sally Ann Ol- ney, conveying all the said Bowen's lands la Vermont to the plaintiff, which was objected to by the defendant, but admitted by the court. The plaintiff also offered the deposition of Mary Olney, to which the defendant objected; but the objection was overruled and the deposition admitted. *The jury returned *630 a verdict for the plaintiff, and the de- fendant excepted. The only question in this case decided bv this court, at the present term, related to the filing and recording of the copies of said wills in the probate court for the dis- trict of Orleans. It therefore becomes unnec- essary to state the substance of said wills, and other papers made parts of the case. This case was before this court at the last term, and in the report of the case, as then decided, (see 13 Vt. R. 589,) the substance of said wills, deed and deposition are fully stated. A question was made whether the lands devised by Chris- topher and Sally Ann Olney included the land sought to be recovered in this action. That question, having been passed upon by the jury, was not considered suljject to revision in this court. ,/. Cooper, argued for defendant, and E. Paddock, for plaintiff. The opinion of the court was delivered by REDFIELD, J. No questions are reserved in this case except those which arise upon the face of the papers introduced by the plaintiff, for the purpose of showing title to the premi- ses demanded. The only question, therefore, which the court have deemed it necessary to decide is, how far the devises, upon which the plaintiff relies, can avail him. They were nev- er filed and recorded in any probate office in this state, until since the bringing of this suit. At the last term of this court, in the same case, it was decided, that the probate of the wills in the state of Rhode Island could not avail the plaintiff in this state. Since that time the req- uisite probate has been made in this state. It is true that the plaintiff must recover upon his title, as it existe'^' at the time of bringing suit, but the recording of deeds, necessary to their being read, may be done at any time be- fore the trial. When the deed is recorded, it takes effect from the delivery. So in this case, it is the death of the devisor that vests the title. At common law. no probate of a devise or will, disposing of real estate, was required, or was of any avail. In this state such probate is in- dispensable, as the probate court have exclusive jurisdiction of the proof *of *631 wills, of real as well as personal estate. But this is mere matter of evidence, and if done at any time before the trial, the devise takes effect from the death of the devisor. The question, whether the land named in the devise is the same land sued for, was one of fact for the jury, and not subject to revision here. Judgment affirmed. TITLE BY DEVISE. 301 Ex parte FULLER, (Fed. Cas. No. 5,147, 2 Story, 327.) Circuit Court, D. Massachusetts. May Term, 1842. This case came up In the district court [case unreported] on a petition by the as- signee [ITenry W. Fuller] for leave to cell one undivided half part of -certain real estate in Portland, Maine, which was devised to Andrew Ross, a bankrupt, and his sister; and which was referred to in the original petition of tlie bankrupt, as follows: "David lloss, of Portland, Maine, grand-father of your petitioner, died at I'ortland, Me., the latter part of December, 1841, and your pe- titioner has reason to believe he may, by his wife, have bequeathed to him and his sister, a certain piece of property in Port- laud. The instrument puiiiorting to be his last will and testament has not been present- ed for probate, and of course has not been proved, approved and allowed." Andrew lloss filed his petition to be declared a bank- rupt on February Sth, 1842, and was declar- ed a bankrupt on March 22d, 1842. David Ross, the grand-father of Andrew, died De- cember 29, 1841, testate. Ilis will was pre- sented and filed for probate at Portland, March 15, 1842, and was proved, approved, and allowed, April 19, 1842. Andrew Ross, who was named in the will as one of the executors, upon being informed of the fact, declined accepting that office, and David lioss, Jun., the other executor, was appoint- ed and qualified as executor. By the will, the estate in question was devised uncondi- tionally and in fee, to Andrew Ross and his sister. The will was not filed for probate until after the filing of Andrew Ross's peti- tion to be declared a bankrupt; and was not proved and allowed, until after he was de- clared a bankrupt. Andrew Ross, living in Boston, had nothing to do with his grand- father's estate, and did no act accepting or declining the devise. Upon this statement of facts, the following question was ordered by the district court to be adjourned into this court, namely: "Whether, upon the forego- ing facts, the said real estate, devised as aforesaid to Andrew Ross, is the property of the said assignee, so that he may sell and convey the sam.e as a part of the estate of the said Ross." IT. W. Fuller, as assignee. Mr. Rogers, for the bankrupt, STORY, Circuit Justice. Two questions arising upon the statement of facts are sub- mitted to this court for decision. 1. In the first p>ace, Avhen upon the principles of the common law, does a devise of real estate take effect in tlie state of Maine? 2. Is it from the date of the probate of the will, or from the death of the testator, and as con- nected with this, whether any assent to the devise is required before the estate 'vests in the devisee? Now, upon this question, I can- not say that I feci any doubt The probate courts of Maine (like the probate courts of many other states in tbe Union) have orig- inal and exclusive jurisdiction over wills of real estate, as well as of personal estate; and the decision of the proper probate court, original or appellate, as to approval or dis- approval of such wills, is final and concbi- sive as to the validity thereof, and caniiit be questioned or reexamined In any other tribunal. In short, our probate courts gen- erally possess the same exclusive jurisdic- tion over the probate of wills of real estate, that the ecclesiastical courts of England ex- ercised over wills of personalty. This is ad- mitted on all sides; and, indeed, is now too firmly established to admit of juridical con- troversy. Now, as soon as a will of real estate, or personal estate, is admitted to probate, and approved, I take it to be clear, upon the principles of the common law, that the pro- bate relates back to the death of the testator, and affirms and fixes the title of the devisee thereto, from that period. This would seem a necessary result; for no title can pass by descent or distribution to the heirs or next of kin of the testator, since the whole is disposed of by his will; and the title cannot be in abeyance, or in nubibus, at least in contemplation of law. Thus, in every trial at the common law, involving a title by de- vise, if the devisee assents thereto, the title is in him from the death of the testator, by mere operation of law, if the will is establish- ed by the verdict of the jury; although the trial may not occur, until many years after the death of the testator. The like rule ap- plies to the probate of wills of personalty in the ecclesiastical courts, where the title of the legatees, and of the executor, takes effect by relation from tlie death of the tes- tator. It is wholly unnecessary to cite au- thorities upon such a point But if it were necessary, Co. Litt 11 lb, is directly in point, where Lord Coke says, that, "In case of a devise by will of lands, whereof the devisor is seized in fee, the f eehold, or interest in law, is in the devisee before he doth enter; and in that case, nothing, having regard to the estate or interest devised, descendeth to the heir." The same doctrine was firmly es- tablished in Massarliusetts (from which Maine derives its jurisprudence) long before my time; and it is fully recognized in the case of Spring v. Parkmau, 3 Fairf. [12 Me.] 127. The case of Shumway v. Holbrook, 1 Pick. 114, proceeds upon the admission of the like doctrine, and shows that no title can be proved to land by devise, in a court of common law, until the will has been prov- ed in the proper court of probate. As to the other point there is no doubt that the devisee must consent, otlierwise the. title does not vest in him. But where the 302 TITLE. estate ^ devised absolutely, and without aiiy trust or incumbrances, the law will pre- sume it to be accepted by the devisee, be- cause it is for his benefit; and some solemn, notorious act is required, to establish his re- nunciation or disclaimer of it. Until that is done, "Stabit presumptio pro veritate." That is sufficiently shown by the case of Townson v. Tickell, 3 Bam. & Aid. 31, cited at the bar, and the still later case of Doe d. Smyth V. Smyth, 6 Barn. & C. 112. Brown V. Wood, 17 Mass. 68, and Ward v. Fuller. 15 Pick. 185, manifestly proceeded upon the same foundation. Now, in the present case, there is no pre- tence to say, that Ross has ever renounced or disclaimed the estate devised to him. The statement of facts is, that he has done no act accepting or declining the devise. If so, then the presumption of law is, that he has, by implication, accepted it, since it gives him an unconditional fee. . But I think, that the very formulary, in which he has inserted a reference to it in the schedule of his estate is decisive to show that he intended to ac- cept whatever estate should be devised to him by his grandfather's will. Until he filed his petition in bankruptcy, the presump- tion of his acceptance is irresistible; for it was clearly for his benefit; and after he had done so, I am of opinion, that he had no right to disclaim or renounce it. It would be a fraud upon his creditors; and a court of equity would compel him to do all acts necessary to perfect his title to the devised estate; and if he did not, no court of bank- ruptcy would decree him a certificate of dis- charge. The bankrupt act of 1841, c. 9, § 3 [5 Stat. 440], vests "all the property and rights of property, of every name and natm-e," of the bankrupt, by mere operation of law, in his assignee, upon the decree of bankruptcy. Nothing can be clearer, than that, at the time of his bankruptcy, the de- vise in the present case was a right of prop- erty vested in Ross. The law presumed his acceptance, until the contrary should be shown. His title could be devested only by his renunciation and disclaimer of the devise before that time; and the subsequent pro- bate of the will, by relation, made the title complete in the assignee. If Ross's consent had been necessary to make it complete, he was boimd formally to give it; and he may even be compelled to give it, by a court of equity. The I'ight of property was incho- ate, if it was not consummated, in the as- signee from the moment of the decree in bankruptcy; and no subsequent act of the bankrupt could change it. It has been suggested, that the devise was not beneficial to Ross, and therefore no pre- sumption can arise of his acceptance of it. How that can be well made out, I do not perceive. Before his bankruptcy, it was clearly for his benefit; and that event has not changed the nature of the interest, but merely the mode of appropriating it. His own voluntary act has enabled his creditors to have the benefit of it. As an honest debt- or, he must desire, that his creditors should derive as much benefit from aU his "rights of property," as is possible. It would be a fraud on his part to withdraw any fund from their reach by a disclaimer or renuncia- tion; and it ought to deprive him of a certifi- cate of discharge. It is, therefore, clearly now for his benefit to presume his acceptance of the devise; rather than to presume him willing to aid in the perpetration of a fraud. If this, be the true posture of the case» standing upon the general principles of the common law, the remaining question is, whether the Revised Statutes of Maine, of 1840, c. 92, § 25, have made any alteration in the operation of the common law, as to the probate of wills. The 25th section declares; "No wiU shall be effectual to pass real or personal estate, unless it shall have been duly proved and allowed in the probate com-t; and the probate of such will shall be conclusive as to the due execution thereof." The argument is, that under this clause, a will is a mere nullity before probate; that the probate gives it life and effect from that time, and not retroactively. It appears to me that this section is merely affirmative of the law, as it antecedently stood. The will before probate, is, in no just juridical sense, a nuUity. The very language of the section prohibits such an interpretation. The will must still be the foundation of the whole title, inchoate and imperfect, if you please, until its validity is ascertained by the pro- bate, but still a will, and not a nullity. It would be an anomaly in the use of language, to speak of the probate of a nullity. The probate ascertains nothing; but the original validity of the will as such. The fact of the testator gave it life; his death consummated the title, derivatively from himself; and the probate only ascertains that the instrument in fact is what it purports on its face to be. It might as well be said that a will of real estate, at the common law, is a nullity, until a jury has ascertained its validity; whereas the verdict ascertains only the fact that the title xmder the wiU is perfect, because it was duly executed by a competent testator, and therefore took effect by relation from the time of his death. But if the argument itself were well found- ed, it would not warrant the inference at- tempted to be drawn from it By the pro- bate, when granted, the will, nnder the sec- tion, takes effect by relation back from tlie death of the testator. It recognises and vests the title in the devisee from that mom- ent. It would otherwise happen, that if he should die before the probate, having ac- cepted of the devise, no title could vest in him; but the bounty of the testator would be defeated. Such a construction of the sec- tion would be productive of the grossest TITLE BY DEVISE. £03 mischiefs; and there is not a word in the section, which authorizes, or even counten- ances it. The section only provides, that no will shall be effectual to pass real estate, un- less it shall have been duly proved; not, until it shall have been duly proved. When proved, it is to all intents and purposes a wiU; and it is to operate upon the interests of the testator, when he intended, that is, from the time of his death. Upon the whole, my opinion is, that tha question propounded by the district court, ought to be answered in the affirmative; and I shall direct a certificate accordingly. 304 TITLE. CARMICHAEL v. LATHROP et al. (66 N. W. 350.) Supreme Court of Michigan. Feb. 26, 1896. Appeal from circuit court, Wayne county, in chancery; Joseph W. Donovan, Judge. Action by Mai'illa B. Carmichael against Ada M. Lathrop and Emily B. Lloyd. De- cree for defendants, and plaintiff appeals. Reversed. Fraser & Gates, for appellant. Charles A. Kent, for appellees. HOOKER, J. The will of Henry P. Pul- ling was executed in June, 1872. After giv- ing his wife the use and enjoyment of all of his property during life, in lieu of dower, it provided that: "Second, All the remain- der of the estate of, in, and to my said property, both real and personal, subject to the said life estate of my said wife, I give, devise, and bequeath to my three daughters, Ada M. Lathrop, of Detroit, Michigan, Emily Lloyd, of Albany, New York, and Marilla B. Carmichael, of Amsterdam, New York, and to their heirs forever, share and share alike. * * * Third. I hereby authorize and em- power my hereinafter named executors to sell and convey in fee simple abs ;lute, in their discretion, any portion or all of my real estate, with a view of otherwise in- vesting the proceeds thereof, or to change my present securities into real investments. But such change is to be done with the con- sent of my wife, and the approval of the probate court or a court of chancery. And this power and authority of so selling and conveying in fee simple absolute my real estate is hereby made notwithstanding the bequests which are given to my daughters, which bequests are hereby made subservient to said power. And I do hereby direct my executors to invest all my moneys and prop- erty, and the avails of all real estate so sold, in first-class, unincumbered real-estate mort- gages, or in United States bonds or Michigan state bonds, said securities to be held and retained by them, and the income thereof paid quarter yearly, or, at the furthest, every half year, by tliem, to my said wife, until her decease, and on such death my estate is to be closed up and distributed as provided for in the second clause of this my will. And lastly 1 do hereby appoint my brother Abraham C. Pulling, of New York City, my brother-in-law William P. Bridgman, of Detroit, and my son-in-law Joseph Lathrop. of Detroit, to be Ihs ex- ecutors of this my last will and testament, hereby revoking all former wills by me made." Mr. Pulling died in July, ISUO. and the will was probated August It), ISLJO. Joseph Lathrop qualified as executor. Tlie probate records show that at the time of the testator's death he was seised in fee of real estate to the value of $05,003, that there was due to him upon laud contracts $45,UO0, that he owned other personal property to the amount of ?30,000, and that there were no debts or claims against the estate. Pre- vious to the death of the testator, he con- veyed to each of the defendants a parcel of real estate; that conveyed to Mrs. Lloyd being alleged to be worth $14,000, and that received by Mrs. Lathrop said to be worth $10,000. The.^e is evidence tending to show that he intended to repair the house upon Mrs. Lathrop's property, thereby making the gift to her equal to that of Mrs. Lloyd, and that he intended to do as well by his other daughter, the complainant; but her hus- band became embarrassed, and finally went to state's prison, and she never received a home, as the others had. Her father, how- ever, gave to her money from time to time, for her support, which aggregated $1,100. Soon after the probate of the will, litigation arose between the widow and children, which was finally adjusted, and the prop?rty was divided, the parties executing the neces- sary deeds and other instruments to cari-y it into effect. The accounts of Lathrop, the executor, were settled, and he was dischar- ged. There is now some land held in com- mon by the three sisters. The complainant files the bill in this cause,^ alleging that the lands conveyed by the tes- tator to her two sisters should be treated as ademptions of their respective legacies, and that they should be required to account to her for her share thereof. She alleges that her father so intended, and that they rec- ognized the justice thereof, and promised to see that she received the same, and, rely- ing upon such promises, she consented to the settlement of the estate, expecting that her sisters would pay her an amount equal to her share of said parcels so received by them. It seems tacitly agreed that this rec- ord involves only the question whether the property conveyed to Mrs. Lloyd and Mrs. Lathrop before the testator's death should be applied upon their respective interests under the will, or, in other words, as .the counsel for the complainant state it, wheth- er it can be treated as ademption or a satis- faction pro tanto of their bequests. We are perhaps at liberty to assume from the plead- ings and admitted facts that the defend- ants received sufficient personal property under the will to more than cover the claim of the complainant; in other words, that they have received bequests to such amount in addition to any lands that they may have received. As to such i>ersonal property, the will made the sisters legatees, although they may have been also devisees as to the real estate, if the contention of the defendants' counsel is correct. In other words, they are none the less legatees, taking bequests of personal property, because one and the same provision of the will gave them both personal and real property. Hence we need spend no time upon the question whether the terms of the will made them devisees, as there are legacies sutficient to support the ademption TITLE BY DEVISE. 305 contended for. We can therefoie eliminate some of the questions which arise where an attempt is made to apply the doctrine of satisfaction to a devise of real property by reason of the conveyance to the devisee of other property. The case is one where it is claimed that a gift of personal property by will may be satisfied by a conveyance of land, when such is the clear intention of the testator. If a person should bequeath to another a sum of money, and, previous to his (the testator's) death, should pay to such person the same amount, upon the express understanding that it was to discharge the bequest, the legacy would be thereby adeem- ed. But, in the absence of an apparent or expressed intention, that would not ordi- narily be the effect of the payment of a sum of money to a legatee under an exist- ing will. Generally, such payment would not affect the legacy. To this rule there is an exception, where the testator is a parent of or stands to the legatee in loco parentis. In such case the payment would be presum- ed to be an ademption of the legacy. At first blush this impresses one as an imrea- souable rule, as it puts the stranger legatee upon a better footing than the testator's own son, and judges and law-writers have severely condemned the rule. See Story, Eq. Jur. §§ 1110-1113. It has been said that "this rule has excited the regret and cen- sure of more than one eminent modern judge, although it has met with approbation from other high authorities." Williams, Ex'rs, 1332. Story's condemnation of it is strong, but he adds, "We must be content to declare it a lex seripta est It is established, though It may not be entirely approved." And Worden, J., in Weston v. Johnson, 48 Ind. 5. says, "Whatever may be thought of the doctrine, it is thoroughly established in Eng- lish and American jurisprudence." Shudal V. Jekyll, 2 Atk. 518; 2 White & T. Lead. Cas. Eq. (4th Ed.) 741; Van Houten v. Post, 33 N. J. Eq. 344; Ex parte Pye. 18 Ves. 140. With a refinement of logic, characteristic, the early English judges held that the in- tention to adeem a legacy is to be presum- ed from the advancement of a part of the legacy, on the theory that it was the testa- tor's right to do so, and tliat he must be pre- sumed to be the best judge of the pi'opriety of a revocation; but the rigor of this rule has been relaxed, and cannot now be said to be the law. Ex parte Pye, 18 Ves. 140; Pym v. Lockyer, 5 Mylne & C. 29, 55; Mon- tague V. Montague, 15 Beav. 565; Williams, Ex'rs, 1.333; Hopwood v. Hop wood, 7 H. L. Cas. 728; Wallace v. Du Bois. 65 Md. 153, 159, 4 Atl. 402. See cases cited 1 Pom. Eq. Jur. § 555, note 3. There are cogent rea- sons in support of the rule stated,—!, e. that payment to a son adeems the legacy,— which is based on the theory that such legacy is to be considered as a portion, and that the father's natural inclination to ti-eat his chil- dren alike renders it more probable that hia GATES.R.P.— 20 payment was in the nature of an advance- ment than a discrimination in favor of one, oftentimes the least worthy. Double por- tions were considered inetiuitable, and upon this the doctrine rests. Suisse v. Lowther, 2 Hare, 427. While the authorities are a unit that a legacy by one in loco parentis will be adeemed by payment, in the ab- sence of an apparent or expressed intent to the contrary, the doctrine was early re- stricted. Among other limitations was the rule that the presumption could not be ap- plied to a residuary bequest, because the court would not presume that a legacy of a residue, or other indefinite amount, had been satisfied by an advancement, as the testa- tor might be ignorant whether the benefit that he was conferring equaled that which he had already willed. Freemantle v. Bankes, 5 Ves. 85; Clendening v. Clymer, 17 Ind. 155; Story, Eq. Jur. § 1115. This ex- ception fell with the discarding of the rule that satisfaction must be in full. Pym v. Lockyer, 5 Mylne &; C. 29; Montefiore v. Guedella, 1 De Gex, F. & J. 93. Again, it was held that it could not be applied unless the advancement was ejusdem generis with the legacy. See 2 Story, Eq. Jur. § lloit. Counsel for the defendant contend that "the conveyance of real estate after the making of a will is held not a satisfaction of any* legacy, in whole or in part, even though that was the clear intent of the testator," and he cites several authorities to sustain the prop- osition. In Arthur v. Arthur, 10 Barb. 9, it was held that "a conveyance made subse- quent to a devise of land is not a revocation or satisfaction of a devise of other lauds to the grantee. But, if the conveyance be of a portion of the same land, that is a revoca- tion pro tanto." This was a case where the court found that the grantor intended and the grantee expected the land conveyed would be in lieu of the grantee's share un- der the will. It was said that to hold that the conveyance was a satisfaction was to hold that the will might be revoked by im- plication, which could not be tolerated un- der the statute of frauds. This case con- tains an elaborate discussion of the subject, and cites many of the earlier authorities bearing upon it. The court of appeals con- sidered the subject in Burnham v. Comfort,, 108 N. Y. 535, 15 N. E. 710. In this case it was claimed that a devise of real property was satisfied b.v the payment of money, on the express understanding, evidenced by the receipt of the devisee, that it was received as a part of her father's estate. The court said that to sustain such claim they must hold that it operated as a i-evocation of the will, which would contravene "the spirit, if not the letter" of the statute of frauds, and that the proposition "lacktxi support in prin- ciple as well as authority." The opinion then asserts that "the rule of ademption is predicable of legacies of personal estate, and not applicable to devises of realty." After 306 TITLE. discussing the question of intention, and in- timating tliat, wliile a presumption of in- tention that the gift should be in satisfac- tion would exist if the case were one in- volving a legacy, it would not in case of a devise, it proceeds to show that the stat- ute of frauds, which extends to wills, was an unsurmountable barrier to the applica- tion of the rule contended for, as to de- vises. Two members of the court dissented. The supreme court of South Carolina, in the case of Allen v. Allen, 13 S. C. 512, had occasion to consider a case where the lega- tees were also devisees, as in the present case. It was held that payments of money were to be considered as made in satisfac- tion of the legacies, but not the devises. The court said: "It would seem that, upon the same principles, devises of real estate ought lilcewise to be adeemed (if such a term can, with any propriety, be applied to devises) by subsequent payments to the devisees with the intention of producing that result; but it is conceded that the doctrine of ademption has never been applied to de- vises of real estate, and, in the absence of any authority, we do not feel justified in disregarding the well-established line which has for ages been drawn between real and personal estate, even though we may be thereby compelled to thwart the obvious in- tention of the testator, and disturb the dis- tribution of his property which he thought was proper and just to his descendants. P^or, while the intention of the testator is the cardinal rule of construction of a will, yet such intention cannot be given where it is in conflict with the rules of law. A de- vise of real estate cannot, like a pecuniary legacy, be affected by any subsequent trans- actions between the testator and the de- visee, but must stand until it is revoked or alteied in the manner prescribed by law." Attention is also called to the case of Swails V. Swails, 98 Ind. 511. In this case land was devised as follows: 88 acres to J.; 36 acres to N. Subsequently the testator con- veyed portions of the same land as follows, viz.: 60 acres to J., the son; and 40 acres to N., a grandson. It was held that the deeds did not revoke the devise of the 24 acres to N., and that tlie doctrine of ademption does not apply to spedfic devises of real estate, nor where the devisor does not stand in loco parentis. The case followed Weston v. Johnson, 48 Ind. 1, where it was held that the doctrine of ademption of legacies by advancement to the legatee by the testator in his lifetime has no application to de- vises of real estate. Again, in Campbell v. Martin, 87 Ind. 577, it is said. "But we know of no reason whatever for the extension of the doctrine, and making it applicable to devises of real estate." In Marshall v. Rench, 3 Del. Ch. 239, the court admits that in some cases a conveyance to a devisee aft- er the making of the will would operate in like manner as the ademption of a legacy,— e. g. where the conveyance to the devisee is of the same land,— because "by such a con- veyance the testator executes his devise, precisely as the settlement of a portion on a legatee is an ademption of the legacy." The court adds that "the conveyance to a devisee of lands other than those devised, or of an interest in lands different from that devised, has never been held an implied revocation of the devise." The authorities cited in support of this are all ancient, except Ar- thur V. Arthur, hereinbefore discussed. We mention at this point the fact that all of these were cases where the attack was made upon a devise, merely, except the South Carolina case, and in that case the claim of ademption was sustained as to the legacies. 2 Woerner, Adm'n, p. 978, is cit- ed in support of defendants' contention. This author dismisses the subject with the statement that "specific legacies are said not to be affected by the subsequent advance- ment of a portion, because the gift of spe- cific articles of personal property by a fath- er to his child is not pi-esumed to be intend- ed as a portion. And, for the same reason, real estate devised is held not to come with- in the rule; but this exception is repudiated in Virginia, and unfavorably commented on elsewhere." See Hansbrough v. Hooe, 12 Leigh, 310, The authorities cited have been commented on at length for the purpose of showing that they differ from the case before us, inasmuch as they were cases where it was sought to treat conveyances as satisfactions of devises. This is not a case where an attempt is made to deprive a devisee of title to land willed to him, but it is claimed that the presumption that a bequest to a son is satisfied pro tanto by a gift is not to be applied where the gift is of land instead of money, or other personal property ejusdem generis. In Richards v. Humphieys, 15 Pick. 140, will be found the following dictum of Shaw, U J.: "We have seen that ademption depends solely upon the will of the testator, and not at all upon the ability of the party receiving to give a valid discharge. Had money been paid to trustees or others for her benefit, without any act or consent of hers, if given expressly in lieu or in satisfaction of such legacy to her, it would have operated as an ademption. Had he pur- chased a house or other property in her name, and for her benefit, with the like intent and purpose expressed, it would have had the same effect." It is apparent that the law looks upon a legacy to a son as a setting off of his portion. Also, it is plain that a subse- quent gift, unless it be of real estate, is pre- sumed to be in satisfaction pro tanto of the legacy. It is also settled that whether the gift is to be considered an ademption of a leg- acy must depend upon the intent of the tes- tator alone. A gift of personal property to a son may be shown not to have been so in- tended, but the burden is upon the legatee. Ford V, Tynte, 2 Hem. & M. 324. A gift to TITLE BY DEVISE. 307 a stranger may be shown to have been in- tended as an ademption, but here the pre- sumption is the other way, the burden being upon the administrator to show such intent. There can be no doubt that a testator's con- veyance of real property may constitute an a:demption, if he so intends it, e. g. where he expresses the intent in the conveyance, and possibly in other ways. If so, the only sig- nificance of the doctrine ejusdem generis is its j effect upon the presumption. The doctrine that the property conveyed must be ejusdem generis appears to be the only ground upon which it can be said that the conveyance in this case should not be treated as satisfac- tion pro lauto. It has been said in early cases that "when the gift by will and the por- tion are not ejusdem generis, the presumption will be repelled. Thus, land will not be pre- sumed to be intended as a satisfaction for money, nor money for land." Bellasis v. Uthwatt, 1 Atk. 428; Goodfellow v. Burchett, 2 Vern. 298; Ray v. Stanhope, 2 Ch. R. 159; Saville v. Saville, 2 Atk. 458; Grave v. Earl of Salisbury, 1 Brown, Ch. 425. But see Ben- gough V. Walker, 15 Ves. 507. The courts have not accepted witliout protest the proposi- tion that the application of the presumption arising from the relation of parent and child should depend upon the similarity of the prop- erty willed and donated, and it has been ask- ed "why, if a gift of a thousand dollars will satisfy a legacy of that amount, it should not equally be satisfied by a donation of lands of equal value." And see Pym v. Lockyer, 5 Mylne tfc C. 44. But all agree that ademption is a matter of intent. In Jones v. Mason, 5 Rand. (Va.) 577, the court said, "This whole class of cases depends upon the intention." In Hoskins v, Hoskins, Prec. Ch. 263, it is said, "I answer, it still shows that intention is everything; ejusdem generis nothing." In Chapman v. Salt, 2 Vern. 646, it was said, "Showing that intention is everything." Again, "It is laid down generally that a resid- uary legacy will not adeem a portion due un- der a settlement, because it is entirely uncer- tain what that legacy may be. But this rule, like the rest, yields to intention." Hickman V. Morgan. 1 Brown. Ch. 63. 2 Brown. Ch. 394. In Bongough v. Walker, 15 Ves. 507, it was held that a bequest of a share in powder works, charged with an annuity, was a satis- faction of a portion of $2,000, when it was so intended. See, also. Gill's Estate, Pars. Eq. Cas. 139. It is forcefully argued that these cases make obsolete the doctrine of ejusdem generis. Whether they do or not, they cer- tainly .show that it must yield to the testa- tor's intent. We cannot, therefore, accede to the proposition of counsel for the defendants "that the conveyance of real estate will not be held a satisfaction of any legacy in whole or in part, even though the intent of the tes- tator is clear." We think the testimony shows the testator's intent. There may be testimony in the record that was incompetent to prove it, but there is sufficient that was competent The widow was conversant with the entire transaction, and the defendants' statements are admissions of their knowledge of such intentions. It is contended that "the allowance of a con- veyance of property as a satisfaction of a de- vise or legacy would be equivalent to a revo- cation of the will in part, and it would have to be pi'oven in the manner provided by our statute for the revocation of wills, e. g. by the destruction of the will, or the making of a new will." How. Ann. St. § 5703; Lansing V. Haynes, 95 Mich. 16. 54 N. W. 699. We think it should not be called a revocation of the will. The defendants' bequests are per- mitted to stand unquestioned, and matter in discharge of the obligation (i. e. payment) is shown. The will is not overturned or re- voked. It is satisfied. We think the prayer of the bill should be granted, and the record should be remanded to the circuit court for the county of Wayne, in chancery, for further proceedings. Decreed accordingly. The oth- er justices concurred. JOS TITLE. SALEM NAT. BANK v. WHITE et al. (42 N. E. 312. 159 111. 136.) Supreme Court of Illinois. Nov. 22, 1895. Appeal from circuit court, INIarion county; B, R. Burroughs, Judge. Bill by the Salem National Bank against Susan White, Joseph I. White, and others, to foreclose a mortgage, and cross bill by Susan and Joseph I. White for partition. Cross complainants obtained a decree. The bank appeals. Reversed. L. M. Kagy, for appellant. Henry G. Goodnow, for appellees. MAGRUDER, J. Section 10 of chapter 39 of the Revised Statutes, being "An act in regard to the descent of property," provides as follows: "If after making a last will and testament a child shall be born to any testator and no provision be made in such will for such child, the will shall not on that account be revoked, but un- less it shall appear by such will that it was the intention of the testator to disinherit such child, the devises and legacies by such will granted and given shall be abated in equal proportions to raise a portion for such child equal to that which such child would have been entitled to receive out of the es- tate of such testator if he had died intes- tate." etc. 1 StaiT & C. Ann. St. p. 8,S3. William White, the testator, made his will on June 8, 1860, devisuig all of the rea^ ^ tate, except the strip two feet wide, em- braced in the mortgage to appellant, to his widow, Susan White, and his three children, William W. White, Cleopatra C. White, and Lillie P. White. On March 12, 1862, another son, the appellee Joseph I. White, not men- tioned in the will, was born to the testator. The testator died on December 13, 1SG3, without changing or amending his will, and his will was duly probated. It does not ap- pear by the will that WilUam White intend- ed to disinherit Joseph I. W^hite. It follows that the devise of the mortgaged premises, except the said strip, should be abated, to raise a portion for appellee Joseph I. White, equal to that which he would have been enti- tled to receive out of the estate of William White, if the latter had died intestate. In other words, under the construction given to the foregoing statute by this court in Ward V. Ward, 120 111. Ill, 11 N. E. 336, Joseph I. White is entitled to an undivided one-fourth part of that portion of the premises em- braced in the mortgage of which his father died seised, and which was devised to his mother and his brother and sisters, subject to the dower therein of his mother, the wid- ow, Susan White. As Susan White obtained a conveyance from her three children, Wil- liam, Cleopatra, and Lillie, of their respec- tive interests in the portion of the mortgaged premises devised to them, the mortgage exe- cuted by her to appellant covered an undivid- ed three-fourths of such portion, but did not cover the vmdivided one-fourth owned by Joseph I. White. We are, therefore, of the opinion that the decree of the circuit court was correct in directing the mortgage to be enforced against the interest of Susan White alone, and not against the interest of Joseph I. White. 1. It is claimed by appellant that Mrs. White and her son Joseph are estopped from claiming that the interest of Joseph is free from the lien of the mortgage. So far as Mrs. White is concerned, she is not claiming Joseph's interest for herself. Whatever acts or conduct on her part might estop her from claiming the one-fourth interest not embraced in the mortgage, it cannot be said that her son Joseph is in any way bound by her acts and conduct. The owner, imder the law, of one-fourth interest, he never signed the mort- gage, and, therefore, did not part with his interest, or subject it to the lien of the mort- gage. We find nothing in the evidence which established any estoppel or acquiescence against Joseph, or makes it inequitable in any way for him to assert his ownership in the property. The officers of the appellant bank and the holders of the mortgages of 1889 and 1877 lived in Salem, where William White lived in his lifetime, and where his widow and children lived after his death. They knew Joseph I. White as a boy, and after he became of age, and knew that he was a son of William White and Susan White. The record of the title to the mort- gaged property, of which the holders of the mortgage were bound to take notice, showed the will of William White, and that it men- tioned only three of his children, and it showed, also, that Joseph I. White never united with the other three children in the conveyance to his mother. We think that, under the testimony, the bank was not only affected with constructive notice of the out- standing interest in Joseph I. White when they accepted the mortgage, but that it had actual notice of such interest. We are aware, however, of no principle of law by which a purchaser or mortgagee of the interests of all the tenants in common in a piece of land, except one, can appropriate the interests of that one. whether they did or did not have notice of such interest at the time of the purchase or mortgage. If there is any spe- cies of estoppel which can be set up against Joseph I. White, it must be estoppel by con- duct. "When a person, by his words or con- duct, voluntarily causes another to believe in the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things." People v. Brown, 67 111. 435. To constitute estoppel by conduct, it must appear that there was a representation concerning material facts, made, with the knowledge of the facts, to a party ignorant of the truth of the matter, with the intention that it should be acted upon; and it must ap- pear that it was acted upon. Fraud, or TITLE BY DESCENT. bU9 something tantamount thereto, is said to be a distinctive characteristic of tljis kind of estoppel. People v. Brown, supra; Flower V. Elwood, 66 111. 438; Powell v. Rogers, 105 111. 318. Joseph I. White did not become of age until March, 1883. He Avas away from Salem at school 5 or 6 years. He left Salem altogether at the age of 23 years, to go to California, where he has since resided. He neither said nor did anything, nor made any representations which induced the holders of the mortgage of 1889, or the hol(>ers of the previous mortgage of 1877, to believe or act in any such way as to change thoir previous position, or to justify them in claiming an •estoppel against him. 2. It is said that the mortgage executed by Susan White in 1889 covered the interest of Joseph I. White because of the power of attorney executed by Joseph and his brother and sisters to his mother in June, 1884, au- thorizing her to sell and convey certain real €State, including that embraced in the mort- gage. The contention of appellant is that Mrs. White had authority to mortgage, be- <;ause the power of attorney gave her au- thority to sell and convey. The mortgage was executed by her alone, in her own name, and not as attorney or agent of htr sou Joseph. She does not describe herself as agent in the body of the instrument, nor sign it as agent or attorney. There is nothing upon the face of the mortgage to indicate that the moi-tgagor intended to convey any other interest than that owned by herself. The general rule is that, in order to bind the principal by a deed made by an agent, the deed must not be made by the agent in his ow'n name, but must purport, upon its face, to ^e made, signed, and sealed in the name of the principal. Story, Ag. (9th Ed.) § 148; Me- -chem, Ag. §§ 419, 420. But, aside from the general rule thus stated, we do not think that, under the circumstances of tliis case, the power of attorney to sell and convej' car- ried with it the pow-er to mortgage. It is true that, in some cases, a power to sell for the piu-pose of raising money wUl imply a power to mortgage; and in cases of wills, where the power is conferred upon the ex- ecutor to sell such parts of the land as he shall deem proper for the purpose of paying debts and making improvements, such power to sell has been held to include the power to mortgage. But here there was no evidence of any intention, on the pnrt of those execut- ing the power of attorney, tliat the power of sale was conferred for any of the piu'poses thus specified. In case of an ordinary power of attorney to sell land and make deeds to the land sold, the power to sell conveys no implied authority to mortgage. Mecliem, Ag. § 323; 1 Am. & Eng. Euc. Law, p. 360; Jeffrey v. Hursh, 49 Mich. 31, 12 N. W. 898. In Jeffrey v. Hursh, supra, Mr. Justice Cool- ey says: "The principal determines for him- self what authority he will confer upon his agent, and there can be no implication, from his authorizing a sale of his lands, that he intends that his agent may, at discretion, charge him with the responsibilities and du- ties of a mortgagor,"— and cites many cases in support of this position. Hence, we are of the opinion tliat the execution of the pow- er of attorney to sell does not lead to the conclusion that Mrs. White mortgaged the interest of her son Joseph. 3. It is claimed that the bank, as mort- gagee, is entitled to the increased value of Joseph's one-fourth interest caused by the improvements placed upon the property. In order to understand this contention, it will be necessary to refer briefly to some of the facts. When Mrs. White and her three eldest chil- dren, William, Cleopatra, and Lillie, made the trust deed to Goodnow in 1877, it was to se- cure $i5,000, borrowed, nominally, frora" one Martin, but really from appellant; and this sum of $.",000, together with $1,0(X) subse- quently borrowed from the bank or one of its customers, was used in improving the prem- ises described in the mortgage by the erec- tion of a brick building thereon. This im- provement was for the benefit of the prop- erty, and seems to have been necessai-y. The premises were in the business part of the town, and the buildings upon them had be- come old and dilapidated, so that they could not be rented to advantage. The old frame buildings were removed, and a new brick structure was erected. While there is no posi- tive testimony that Joseph I. White was con- sulted about the erection of the new building, or that he formally consented to it, yet he knew of it, and made no objection to it, and received a diiect benefit from it. in the use, by his mother, of the rents derived from it for his support and education. The new mort- gage, made by Mrs. White in 1889, after she had received the deed of their interests from the three oldest children, was to secure, not a new indebtedness, but the old indebtedness of $6,000 above mentioned, together with ac- cumulated interest, taxes, insurance, etc. The second mortgage was executed for the pur- pose of taking up the old notes, given to se- cure borrowed money used in improving the property. The mortgage of 1889 was, there- fore, a mere continuation of the mortgage of 1877, and represented loans of money that were expended in improvements upon the premises. A mere change in the form of the evidence of the debt, not intended to operate as a payment, will not affect the mortgage lien. Flower v. Elwood, m 111. 43S; Camp- bell V. Trotter, 100 111. 281. AVhen the mort- gage of 1889 was executed to secure an in- debtedness representing money used in im- proving the property, Susan White and Joseph I. White were tenants in common, she own- ing three-fourths and he one-fourth. He was a tenant in common with the other children when the mortgage of 1877 was made. If his interest in the laud was made more valuable by reason of the improvements, and will sell for more at the partition sale on that ac- 310 TITLE. count, it would seem to be just that he should make compensation. The doctrine, in equity, is that, when improvements have been made by one tenant in common, the portion im- proved should, if practicable, be assigned to him in the partition of the estate; and when such a division cannot be made, he should be allowed a reasonable remuneration from those who receive the benefits of the im- provement. Where the premises are sold be- cause they are not susceptible of division, the tenant in common making the improve- ment should be allowed the actual increase of the price received at the sale in consequence of the improvement made. Louvalle v. Men- ard, 1 Gilman, 39; Howey v. Goings, 13 111. 95; Dean v. O'Meara, 47 111. 120; Kurtz v. Hibner, 55 111. 514; Mahoney v, Mahoney, 65 111. 400. In the case at bar, appellee Joseph I. White should be charged, as between him and his cotenant, Susan White, with such in- crease in the amount which his one-fourth in- terest in the land shall "bring at the sale as results from the fact of its being improved. Cooter v. Dearborn, 115 111. 509, 4 N. E. 3SS. If Mrs. W^hite is entitled to such increase, lier lien therefor passes to appellant by virtue of the mortgage executed by her. Improve- ments placed on real estate by the mort- gagor inure to the benefit of the mortgagee, and so, if one tenant in common places im- provements upon the common property, and liierebj' acquires a lien on his cotenant's in- terest for a proportionate share of the in- crease in value caused by the impi-ovement, it will be an accession to his interest, which will be subject to a mortgage given by him on the property, and will pass to the mort- gagee, to the same extent, in the same man- ner, and for the same reasons that the im- provements became liable to the lieu of the mortgage. Baird v. Jackson, 98 111. 78. In other words, the mortgagee is entitled to be subrogated to the lien of the mortgage im- proving the property, as tenant in common, for such proportionate share of increase in value or price as inures to the benefit of the other tenant in common by reason of the im- provements. Lagger v. Association, 146 111. 283, 33 N. E. 946. We are, therefore, of the opinion that the decree of the x:'ourt below is erroneous in not providing that there should be paid to the appellant, out of the proceeds of the sale of the interest of Joseph I. White in the premises, such proportion of such pro- ceeds as shall represent the increase added to- the amount of the sale of said interest by rea- son of the improvements. 4. As we understand the evidence, the own- ership of Mrs. White and her children in the- strip two feet wide covered by the mortgage was not derived from the deceased testator, William White, but was conveyed to them, after his death, by one Richard Atkin and wife. On. June 22, 1877, Atkin executed a. deed conveying the strip to Mrs. White and the four children. By this deed Joseph I. White became the owner of only one undivid- ed one-fifth part of the strip. The decree, cor- rectly, finds him to be the owner of one un- divided one-fourth part of all the mortgaged premises, except the strip in question, but the decree is manifestly erroneous so far as it finds him to be the owner of one-fourth of the strija, instead of finding him to be the owner of one-fifth thereof. The decree should, therefore, be corrected in this respect, so as to conform to the proof. 5. Mrs. White was entitled to dower in the one-fourth part of the mortgaged premises (except the strip) owned by her son Joseph. Ward v. Ward, supra. But her dower in this interest did not pass to the appellant as mort- gagee by reason of the mortgage. The mort- gage did not convey Joseph's interest. There is nothing to show that the dower therein was ever assigned. Dower may be released ta the owner of the fee, but no other disposition can be made of it until it has been set apart. Best V. Jenks, 123 111. 447, 15 N. E. 173. The right of dower, in a widow, is no estate in the land until it has been assigned, but it is a right resting in action only, and cannot be aliened. McNeer v. McNeer, 142 111. 388, 32 N. E. 681. We do not agree with counsel for appellant in his contention that the bank is entitled to a lien on said dower interest, but regard the decree as correct in not awarding such lien. By reason of the two errors, in regard to the improvements, and the extent of the outstanding interest in the strip de- scribed in the mortgage, the decree will be reversed; and the cause is remanded to the circuit court for further proceedings in ac- cordance with the views herein expressed. Reversed and remanded. TITLE BY DESCENT. Lll In re CARPENTER'S ESTATE. (32 Atl. 637, 170 Pa. St. 203.) Supreme Court of Pennsylvania. Jul.v 18, 1895. Appeal from orphans' court, Juniata coun- ty; Lyons, Judge. In the matter of the estate of James Car- penter, deceased. From the order of dis- tribution, A. M. Carpenter, a collateral heir, appeals. Affirmed. James Cai-penter, the decedent, was mur- dered by his son, J. B. Carpenter, in order that the son might get immediate possession of the father's estate under the statute of distributions. The widow became an acces- soiy after the fact. After the commission of the crime, the mother and son conveyed their interests in the property to the attor- neys who defended them in the prosecution for murder. The collateral heirs of decedent contend that neither mother nor son could take any interest in the estate, by reason of their crime. J. Howard Neely and W. U. Hens^l, for appellant. J. C. Bucher, W. H. Sponsler and J. N. Keller, in pro. per. GREEN, J. The penalty for murder In the fii'st degree in Pennsylvania is death by hanging. No confiscation of lands or goods, and no deprivation of the inheritable quality of blood, constitutes any part of the penalty of this offense. The declaration of rights (article 1, § 18, of the constitution of the state) declares that "no person shall be at- tainted of treason or felony by the legis- lature," and by section 19 it is provided that: "No attainder shall work coixuption of blood, nor, except during the life of the offender, forfeiture of estate to the commonwealth. The estate of such persons as shall destroy their own lives, shall descend or vest as in cases of natural death; and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof." These are pi'ovisions of the organic law which may not be transcended by any legislation. I'n- asmuch as the prescribed penalty for murder is death by hanging (Ciimes Act 1860, § 75; Brightly, Purd. Dig. p. 429, pi. 142), without any forfeiture of estate or corruption of blood, it cannot be said that any such con- sequences can be lawfully attributed to any such offense. In other words, our constitu- tion positively prohibits any attaint of trea- son or felony by the legislature, aud any cor- ruption of blood by reason of attainder, or any forfeiture of estate, except dui-ing the life of the offender. The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence. In the case now under consideration it is asked by the appellant that this court shall decree that in case of the murder of a father by his son the in- heritable quality of the son's blood shall be taken from him, and that his estate, un- der the statute of distributions, shall be forfeited to others. We are unwilling to make any such decree, for the plain reason that we have no lawful power so to do. The intestate law in the plainest words designates the persons who shall succeed to the estates of deceased intestates. It is impossible for the courts to designate any different persons to take such estates with- out violating the law. We have no possi- ble warrant for doing so. The law says, if there is a son, he shall take the estate. How can we say that, although there is a son, he shall not take, but remote relatives shall take, who have no right to take it if there is a son? From what source Is it possible to derive such a power in the courts ': It is argued that the son who murders his own father has forfeited all right to his father's estate, because it is his own wrong- ful act that has terminated his father's life. The logical foundation of this argument is, and must be, that it is a punishment for tlie son's wrongful act. But the law must fix punishments; the courts can only enforce them. In this state no such punishment as this is fixed by any law, and therefore the courts cannot impose it. It is argued, however, that it would be contraiT to public policy to allow a parricide to inherit his father's estate. Where is the authority for such a contention? How can such a propo- sition be maintained when there is a posi- tive statute which disposes of the whole subject? How can there be a public policy leading to one conclusion .when there is a positive statute directing a precisely opposite conclusion? In other words, when the im- perative language of a statute prescribes that upon the death of a person his estate shall vest in his children, in the absence of a will, how can anj' doctrine, or principle, or other thing, called "public policy," take away the estate of a child, and give it to some other person? The intestate law casts the estate upon certain designated persons, and this is absolute and peremptoi-y; and the estate cannot be divertetl from those persons, and given to other persons, without violating the statute. There can be no pub- lic policy which contravenes the positive lan- guage of a statute. The supposed analogies derived from the fraudulent abuse of a con- tract right, or an actual notice accomplish- ing the same result as a constructive notice under the recording acts, or the waiver of an exemption act by one entitled to its bene- fits, and other instances of a similar charac- ter, are no analogies at all. There may be i-easons why a statutory provision may not be applicable in a given case when the pur- pose of the statute is subsei-ved in a different mode, or dispensed with altogether; but here is a contingency which does not depend upon any act, or omission to act, of any per- son whatever. It is th3 act of the law which casts the descent of estates, and that is not regulated or controlled by the acts, 312 TITLE. the follies, the frauds, or the crimes of ajiy individual persons. Unless the law itself contains some qualification which changes its application, or provides some disqualifi- cation by way of penalty, it must have its way, because there is no other way. If we consider the question upon authority, we find the great preponderance of judicial decision in accord with the views above ex- pressed. In view of the dreadful and un- natm-al character of the crime of the son in this case, it is not a matter of wonder that the precise question has never yet been before us, and that there is a dearth of authority among the tribimals upon such a subject. In the case of Owens v. Owens, 100 N. C. 242, 6 S. E. 794, Sarah Owens was convicted of being an accessory before the fact to the murder of her husband. She was sentenced to impris- onment for life, and while undergoing her sentence she petitioned the com-t to assign her dower in the real estate of her deceased husband. In allowing her petition the com-t said: "We are unable to find any sufficient grounds for denying to the petitioner the re- lief she demands, and it belongs to the law- making power alone to prescribe additional grounds of forfeiture of the right which the law itself gives to a surviving wife. For- feitures of property for crime are unknown to our law, nor does it intercept for such cause the transmission of an intestate's property to heirs and distributees, nor can we recognize any such operating principle." In Deem v. Millikin, 6 Ohio Cir. Ct. R. 357, the facts were that Elmer L. Sharkey murdered his mother for the puii^ose of succeeding to the title to her real estate. He was convicted and hanged after having mortgaged the real estate. The collateral heirs contended that by reason of his crime no interest had passed to the son and therefore the mortgages were void. In the opinion the court said: "The statute of descent neither recognizes mis- chief nor provides a remedy. It is a legis- lative declaration of a rule of public policy. * * * There should be no difficulty in distinguishing this case from those in which the rights asserted have no foundation other than the fraudulent or unlawful conduct of a contracting paily, nor from those in which attempts are made to use the process of the courts for fraudulent pui-poses. * * * The natural inference is that when the legis- lature incorporated the general rule into the statute, and omitted the exception, they in- tended that there should be no exception to the rule of inheritance prescribed." In the case of Shellenberger v. Ransom, 59 N. W. Rep. 935, the supreme court of Ne- braska, reversing its own former decision reported in 47 N. W. 700, held that the mur- derer did not forfeit the estate of his daugh- ter, whom he had murdered in order that he might acquire the title to her real estate. At the first hearing the court followed the decision of a majority of the New York court of appeals in Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, but changed their ruling on the- reai-giument in 1894. In delivering the sec- ond opinion the court says: "The conclusion reached by the reasoning of Judge Earle in Riggs V. Palmer, as well as that in this case, was based very largely on that species of ju- dicial legislation above characterized as 'ra- tional construction.' If courts can thus en- large statutoiy enactments by construction, it may be that the references in the majority opinion in Riggs v. Palmer to the provisions of the civil law were very apt as illustrating how, by i-ational interpretation, our statute should be made to read. * * * The legis- lature has spoken. Their intention is free from doubt, and their will must be obeyed. 'It may be proper,' it has been said in Ken- tucky, 'in giving a construction to a statute, to look to the effects and consequences, when its provisions are ambiguous, or the legis- lative intent is doubtful. But when the law is clear and expUcit, and its provisions are susceptible of but one interpretation, its conseft[ueuces, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial, action.' " The case of Rigigs v. Palmer was decided by a divided court, but it was a case of devise, and not of descent, and involved only the question of permitting a devisee to take title under the will of a testator whom he had murdered in order to get the property devised to him by the will. While we do not agree to the conclusion reached, the case only in- volved the operation of a private gi-ant, and therein differs widely from a case in which the statutory law of descent is in question. In the former case it was only necessary to set aside an instrument between private par- ties on the ground of fraud, but in the latter it would be necessary to set aside the positive law of the state. The case of Insurance Co. V. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877. cited for the appellant, merely decided that proof that the assignee of a policy of hfe in- surance caused the death of the assured by felonious means was sufficient to defeat a re- covery on the policy. Mr. Justice Field, de- livering the opinion, said: "It would be a reproach to the jurispiiidence of the counti-y if one could recover insurance money paya- ble on the death of a party whose life he had feloniously taken. As well might he re- cover insurance money upon a building that he has wihfully fired," thus showing that tht decision was based entirely upon the ground of fraud upon a contract right. The case of Cleaver v. Association [1892] 1 Q. B. 147, also cited for appellaxit, is of an entirely sim- ilar character. It was an attempt to enforce a trust in favor of one who had brought about the conditions essential to its fulfill- ment by killing the person whose death made it operative. Lord Justice Fry said in the opinion: "If no action can arise from fraud, it seems impossible to suppose it can arise from felony or misdemeanor." In the ar- gument for the appellant no case is cited TITLE BY DESCENT. 315 which presents the very question which arises on this record. But there are at least the three cases above cited which do involve the same question as this, and they are all de- cided against the contention of the appellant. These authorities appear to us to be far more in consonance with sound principle than those which are seemingly, though not really, of an opposite tendency, and they certainly har- monize with tlie views we entertain. The assignments of error are not sustained. The decree of the court below is afHrmed, and the appeal is dismissed, at the cost of the appel- lant WILLIAMS, J. I concur In the disposi- tion of so much of the fund as is derived from the estate of Mrs. Carpenter, who was con- victed only of being an accessory after the fact to the murder of her husband. I dissent from the dispo.sition of so much of it as is derived from the alleged estate of the son, who was convicted of murder, and whose crime was committed for the purpose of se- curing the property of his father. The sou could not, by his own felony, acquire the property of his father, and be protected by the law in the possession of the fruits of his crime. WEST PUBLISHINO CO., PRINTEBS AND BTERKOTYI'tRS, BT. FADL, MIMK. LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES \ SSS^nf^°f^.^BRARyPAC,L,TY M- ■■ '•-"<••>,, iia, III, Hill ifi 000 695 407 7 Nx*^ ^\V? N <»\ ^^:l^