1 , ^ li %*»■ V 1 V ^ \ . \ T / / .-. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF James R. Hutter •U? Bus. Adm. ^2-X) A TREATISE ON THE LAW OF CONVEYANCING. BY W. B. MARTINDALE. SECOND EDITION: BY LINE S. METCALFE, JR , Editor Central Law Journal. ST. LOUIS, MO. : CENTRAL LAW JOURNAL COMPANY, LAW PUBLISHERS AND PUBLISHERS OF THB CENTRAL LAW JOURNAL. 1889. Copyright, 1882, BY W. B. Martindale. COPTTRIGHT, 1889, BY Central Law Journal Company. T St. Louis, Mo.: Pnnted by Central Law Journal Company. IL b PREFACE TO THE FIRST EDITION. This volume is designed to present, in a convenient form for ready reference, a concise, yet somewhat comprehen- sive view of the Law of Conveyancing, applicable to all the States. The aim of the author has been to con- dense the wcfrk by treating the subject with reference to general principles, and by stating, as succinctly as was found to be consistent with accuracy, the prop- ositions decided by the courts, referring the reader to numerous and carefully selected authorities where more extended discussions of the various questions may be found. It has been attempted, in this manner to ren- der the work of service to the profession, and at the same time to meet the wants of a large class of con- veyancers, who are specially interested in this branch of the law. In the preparation of this treatise the author has had the valuable assistance of Mr. Lyne S. Metcalfe, Jr., of the St. Louis Bar, whose skill and experience in examining and digesting authorities, supplemented by an accurate knowledge of the Law of Real Property, has materially contributed to the completion of the work. St. Louis, Mo., Februar}', 1882. 740782 ^ PREFACE TO THE SECOND EDITION The legal profession, or rather that portion of it who buy books, is more responsible than its author or publisher for the appearance of a second edition of this work. Whether bv reason of its intrinsic merit or the dearth of books on subjects pertaining to practical Conveyancing, or both, the fact is, that few American treatises have met with as cor- dial reception, in part evidenced by the rapidity of its sale, as was accorded the first edition. Its success may in a measure be due to the fact that its subject is one of con- stant and increasing interest, upon which no distinctive American treatise had appeared. But it would be unfair, in estimating the relative causes for its exceptional suc- cess, to ignore the real merit of the book, which consists in its admirable arrangement of subjects, its clearness and terseness of style, its condensation of matter, and accuracy of statement, all of which have secured for the aiithor a hish rank among modern law writers. o CD In presenting to the profession a second edition, the editor may be permitted to express a pardonable pride in the reception accorded the first edition, inasmuch as he was a co-laborer in its production, a circumstance which has rendered him better qualified for this revision. It has been his aim to review all the later cases and statutes on the various topics discussed, and to revise and add to the text and citations such as were deemed important or valuable to the practitioner. Lyne S. Metcalfe, Jk. St. Louis, Mo., July, 1889. SUMMARY OF CONTENTS. TITLE I. — Purchase Deeds. PAGE. CHAPTER I. General Requisites of Deeds, ........ 1 CHAPTER II. The Formal Parts of a Deed, ........ 54 CHAPTER HI. The Execution of Deeds, ......... 173 CHAPTER IV. Acknowledgment and Registration of Deeds, ..... 222 TITLE II.— Leases. CHAPTER V. Leases in General, ......... 269 CHAPTER VI. The Formal Parts of a Lease, ........ -284 CHAPTER VII. The Execution, Assignment and Detei-mination of Leases, ... 321 TITLE III.— Mortgages. CHAPTER VIII. The Nature and History of Mortgages, ...... 353 CHAPTER IS. Form and Requisites of a Mortgage, ....... 374 CHAPTER X. Assignments, and herein of Purchaser of the Equity of Redemption, . 438 CHAPTER XI. Redemption, Payment and Discharge, ...... 467 CHAPTER XII. Foreclosure, .......... 4% TITLE IV.— AViLLS. CHAPTER XIII. The General Requisites of a Valid Dev:se, ..... 533 CHAPTER XIV. Of the Revocation iind Republication of Wills, ..... 568 CHAPTER XV. Of the Prolinte of Wills, and of their Registration, .... 571 CHAPTER XVI. Of the Construction of Wills, ... . . 582 TABLE OF (ON TENTS TITLE I. — Purchase Deeds. CHAPTER I. GENERAL REQUISITES OF DEEDS. ARTICLE I. COXTR^CTS FOK THE PURCHASE AND SALE OF LAND. SECTION. PAGE. 1. Every deed is founded upon a pre-existing purpose, ... 2 2. Statutory requisites for a contract of sale, . . . .2 3. The statute applies to every interest in land, .... 3 4. What must be contained in the agreement, . . . . . 5 5. Parol evidence, when admissible, ...... 8 • 6. As to the signature, .........!) 7. Signature by agent, ......... 10 8. Tut; equitable doctrine of part performance, . . . .12 9. The effect of the contract, and herein of specific perf or manor. . 15 10. Whether a deed or an agreement for a deed, . . .is ARTICLE II. DEEDS MAY BE OF WHAT MATEIU.VL. 13. Definition of deed, ......... V? 14. Must be written upon paper or parchment, ..... 20 15. Maybe printed, or part printer}! and part written, . . .20 16. Should be written or printed with ink, . . . . .21 ARTICLE ni. MUST BE COMPLETELY WRITTEN BEFORE DELIVEIJY. 18. Alterations, to be valid, must be made before delivery, . 22 19. Burden of proof, . ......■• '-'3 20. Executed contract not affected by subsequent alterations, . . 24 21. Filling up blanks, ......-.■ '^ ' ARTICLE IV. OF THE PARTIES TO A DEED. 23. All persons competent except those under special disability, 24. As to a disseizee, ....... 25. Infants , . .. . .... 28 29 TAIU.E OF rONl'KNTS SECTION. 26. Persons of non-sane mind, . . . . '27. Married women, . . . . . . 28. Duress, ...... 29. Undue Influence, . . . . . . 30. Intoxication, ...... 31. Joint tenants, ...... 32. Deeds from husband to wife, . . . . 3;5. The capacity of a grantee, .... 34. The parties must be in esse, .... ARTICLE V. FRAUDULENT CONVEYANCES. 36. When a conveyance will be deemed fraudulent, 37. Voluntary conveyances, . . . . . 38. Deeds obtained by fraud of the grantee, .39. Conveyances void for other causes. PAGE. 32 33 35 36 37 38 39 40 43 44 48 52 52 CHAPTER II.— The Formal Parts of a Deed. AKTICLE I. THE DIFFERENT FORMS OF DEEDS. 42. The common law conveyance. . , 43. Feoffment with livery of seizin, 44. Gift and demise, ..... 45. Deed of grant, ..... 46. Lease, ....... 47. Exchange, . . .... 48. Partition, ...... 49. Release, ....... 50. Oonflrmation, ..... 51. Surrender, ...... .52. Assignment, ...... 63. Defeasance, ...... 54. Convej'ances derived from the statute of 11 sc'i, 55. Covenant to stand seized, ....... 56. Bargain and sale, ....... 57. Lease and release, ........ 58. Fine and recovery, ....... 59. Quitclaim deeds, ........ 60. The deeds in use in the United States, .... 61. Indentures and deeds poll, ...••■ 62. The present division of the parts of a deed, ... ARTICLE IT. AS TO THE DATE OF A DEED. 65. General rules as to the d;ite, ...... ARTICLE III. THE NAMES OF THE PARTIES. 67. It is suflacient if the parties are distinguished. . 68. The grantor should be named in the deed, . . • ' ■ 69. A deed must be to some certain person or corporatlcr. named, TO. Illustrations of the foregoing principles, .... 1. As ic jr-atter descriptive of the parties, .... 55 55 56 56 57 57 58 58 59 60 60 60 61 61 62 63 64 64 66 67 68 69 70 71 72 73 74 TABLE OF CONTKNTS. XI SECTION. 82. 83. 84. 85. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 111. 112. 113. 114. 115. 116. ARTICLE IV. OF THE RECITALS. 73. 74. 76. 77. 78. 79. The purpose of the recitals, Effect of recitals as notice, PAGE. 75 76 ARTICLE V. THE CONSIDERATION. Considenitions are of two kinds— good and valuable, ... 78 Consideration not essential at common law, .... 79 Is necessary to a bargain and sale or covenant to stand seized, . 79 Amount actually paid may be proved, when, ARTICLE VI. THE GRANTING CLAUSE. There must be words showing an intention to convey, . . .83 No particular form of words necessary, ..... 8.^ Covenants implied by words of grant, ...... B* As to words of limitation or inheritance, ..... 85 ARTICLE VII. THE DESCRIPTION OF THE PREMISES. Description must afford means of identifying the land, . . 86 Parol evidence admissilile, when, ...... 87 Deed may be reformed, when, ....... 88 When resort is to be had to rules of construction, ... 88 Reference to condition of the property at the time, . . .89 Contemporaneous writings, ....... 89 A grant of the principal passes the incident. ..... 89 A grant in general terms passes all the constituent parts of the thing granted, .......... 90 All parts of a deed to be construed together, ..... 90 False surplusage of description, ...... 90 Where there are two descriptions, the one must definite will control, 91 The grammatical sense not always adhered to, . . . .91 All the instruments construed cow^rapro/eren^ew, ... 91 Construction always favorable to the purpose of the deed, . . 92 Monuments control courses and distances, .... 92 Establishment of boundary line by adjoining proprietors, . . 93 Reputation, when admissible, ....... 94 Grant bounded on stream or highway goes to the centre, . . 96 As to land bounded by large bodies of water, .... 9« The quantity of land mentioned, ....... 97 The words " more or less," ....... 98 Effect of reference to map, survey or another deed, . . .98 Exceptions, .......... 99 ARTICLE VIII. THE HABENDUM. The habendum not an essential part of a deed, .... 100 Cannot introduce new parcels into the grant, .... 101 Party not named in the grant may take under habendum, when . 102 As to the estate limited, ....... 102 Rule in Shelley's case, ........ 103 A freehold must not be limited to commence in /Mfwro, . 104 Xll TABLE OF CONTENTS. SECTION'. PAGE. ARTICLE IX. THE REDDENDUM. 118. Distinguished from an exception, ...... 106 119. Tlie essential to a good reddendum, ...... 107 ARTICLE X. CONDITIONS, LIMITATIONS AND OTHER SPECIAL AGREEMENTS. 121. Such stipulations may appear in any part ol the deed, . . 108 122. A condition defined, ......... 108 123. General and special conditions, ...... 109 124. Conditions are also either precedent or subsequent, . . . 109 125. Void conditions, ......... 110 126. Whether a condition or a covenant, ...... Ill 127. Conditions distinguished from limitations, .... 112 128. Conditions distinguished from remainders, ..... 112 ARTICLE XI. USES, TRUSTS AND FOWEKS. 131. The subjects discussed under this head, ... . . 114 132. Uses defined, ......... 114 133. Shifting or secondary uses, ....... 116 134. Springing uses, ......... 116 135. Future and contingent uses, ....... 117 136. Uses in the United States, ....... 117 137. Origin of trusts, . . . . • . • • .118 138. Our present system of trusts, ...... 119 139. A classification of trusts, ........ 119 140. Simple and special trusts, ....... 119 141. Executed and executory trusts, ...... 120 142. Active and passive trusts, ....... 120 143. Ministerial and discretionary trusts, ...... 121 144. Trusts divided in reference to their ore itioii, .... 121 145. The parties to a trust, ........ 121 146. The creation and assignment of trusts, ..... 122 147. Powers are of two sorts, ........ 124 148. Powers of appointment defined, ...... 124 149. General and particular powers, ....... 125 150. Powers collateral, appendant and in gr)-.s, .... 125 151. The creation of a power, . . . . . . . .126 152. The extcution of powers, ....... 126 153. Who may execute a power, ....... 129 154. Conditions annexed to power must be strictly complied with, . 127 155. Power need not be referred to in its execution, . . . 120 156. The appointee takes under the original deed, ..... 130 157. Equity jurisdiction over the execution of powers, . . . 130 158. The suspension and destruction of powers, ..... 130 ARTICLE XII. COVENANTS FOR TITLE. 160. Covenant defined— construction, ...... 132 161. Express and implied covenants, ....... 133 162. Real and personal covenants distinguished, .... 133 163. The covenants usually contained In deeds, ..... 134 164. The covenants of seizin and right to convey, .... 135 TABLE OF CONTENTS. xiil SECTION. j.^,,g^ 165. The covenant of seizin Is broken, when, . . . .136 166. The covenant against incumbrances, •• ... 139 167. What constitutes a breachjof the covenant against Incumbrances, . 142 168. The covenant of warranty, . . . . . , ' 24g 169. Estoppel by warranty, . . . . . _ . . 147 170. What constitutes a breach of the covenant of warranty, . . i4S 171. Special warranty, •••...... 162 172. The covenant for further assurance, • .... 154 173. Implied covenants, . •••■.... 154 174. Of dependent and independent covenants, .... 158 175. The measure of damages for breach of covenant of seizin, . . 159 176. Damages for breach of covenant against incumbrances, . . leo 177. Damages for breach of covenant of warranty, . . . .161 AKTICLE XIII. THE ^TESTUrONIUM CLAUSE. 180. It should appear thatfthejinstrument was intended to be sealed, . 163 181. Relinquishment of dower and homestead, . . . . , 164 182. As to the relinquishment of dower, . . . . . .165 183. Of the alienation of the homestead, ...... I68 CHAPTER III.— The Execution of Deeds. AKTICLE I. OF THE READING REQUISITE TO MAKE A VALID DEED. 186. Reading essential, when, ■•...... 173 187. Fraud or mistake in reading vitiates the deed, .... 174 ARTICLE n. HOW FARJSIGNING IS NECESSARY. 189. Signing was formerly unnecessary, but is now required, . . . 175 190. What constitutes a sufficient signature, ..... 175 191. Deeds by corporations, ........ 176 ARTICLE III. • AS TO THE SEALS. 193. A seal essential to the validity of a deed at common law, . . 177 194. What will constitute a common-law seal, ..... 178 195. A scroll may be used as a seal, in what States, . . . .179 196. Several persons may adopt the same seal, ..... 180 197. Of corporate seals, ........ 181 ARTICLE IV. ATTESTING WITNESSES. 199. No witnesses required at common law, . . . . .181 200. The number of witnesses required in the different States, . . 1S2 201. Qualification of the witnesses, ....... ls3 202. Witness must sign at grantor's request, ..... 184 ARTICLE V. OF THE DELIVERY OF A DEED. 204. A deed takes effect from delivery— presumptions as to time, . . 185 205. What will amount to a delivery, . . . ' . . . 1^6 6. The question of delivery always one oi intention, . . . .188 XIV TABLE OF CONTKNTS. SECTION. 207. The delivery must be known :md ii-«sfnted to by the grantee, 2ii8. Delivery to third person for grantee's use, 209. The time at which the title passes, 210. Of the doctrine of relation in deeds, 211. Effect of a subsequent ratification, ... 212. Effect of registration in respect to the delivery of a deed, 213. Delivery persumed from possession of tlie grantee, 214. Acceptance, when presumed, ..... 215. Kelationship between parties, .... 216. Of the delivery of a deed to a married woman, . 217. Delivery ol a deed to several grantees, 218. Of the delivery of a deed by several joint owners, 219. Deeds made by and to corporations, how delivered, 220. Deed must be completely executed before it cau take effect, 221. A deed once delivered cannot be revoked, 222. The question of delivery always open to proof, 223. What is an escrow, ...... 224. Deed never an escroiv, if delivered to the grantee, 225. Deed placed in hands of third party when not an escrow 226. Deed delivered as an escrow has no effect until condition performed, 227. Effect of second delivery, ....... ARTICLE Vr. POWER OF ATTORNEY TO EXECUTE DEEDS. 230. Definition and requisites of a power of attorney, 231. Who may appoint an attorney, ..... 232. As to persons acting in an official or fiduciary cipacity, 233. Who may act as an attorney, ..... 284. When the authority is conferred upon several, 235. Powers of attorney are strictly construed, 236. Authority to execute a deed must be express and special, . 237. Power to sell land means an absolute sale for cash, 238. How far necessary that the power should identify tlie land, 239. Of a power to sell land for a specified purpose, 240. Relinquishment of dower by attorney in fact, 241. A power of attorney may be revoked, when, . 242. Of the revocation of a power of attorney, ARTICLE VII. OF THE EXECUTION OF DEEDS BY ATTORNEY. 245. The power must be strictly pursued, . . . , 246. The form in which the agent sliould execute his authority. PAGE. 190 191 102 193 194 196 199 199 200 200 200 201 201 201 202 203 204 204 205 205 206 208 209 210 211 21'2 212 213 214 214 215 215 216 216 217 219 CHAPTER IV. — Acknowledgment and IIegistration OF Deeds. ARTICLE I. ACKNOWLEDGMENT OR PROOF OF DEEDS. 248. The provisions regulating acknowledgments are purely statutory, 249. When a certificate of acknowledgn.ent is necessary, . 250. The purpose of the acknowledgment, ..... 251. Effect ol the acknowledgment upon the deed as evidence, 252. The acknowledgment authorizes and gives effect to the record, 253. Who may make the acku'nvledgment, .... 222 223 224 224 225 226 TABLE OF CONTENTS. XV SECTION. 254. It is immaterial wlien the aclinowledgment la made, 255. What law governs, ....... 256. Qualification of the officer to act in taking the acknowledgment, 257. As to the date and place of taking the acknowledgment, 258. The certificate should set out the olHcial character of the officer, 259. The name of the grantor should be stated or referred to, 260. Statutory requirements must be substantially complied with, 261. The certificate must be subscribed— seal of office, 262. The certificate to be on same sheet with the deed, when, 263. The certificate how far conclusive of the facts stated, 264. Mistakes in the certificate may be corrected, how, 265. Curative statutes, ....... 266. Proof by subscribing witnesses, ..... TAOE. 227 227 228 230 231 2a I 232 236 237 238 239 240 241 ARTICLE II. REGISTRATION OF DEEDS. 269. Registration differs from enrollment, 270. Equivalent to livery of seizin, ..... 271. AVhen the record of a deed is constructive notice, 272. At what time the record takes effect as notice, 273. Time allowed for recording— precedence of record, 274. When a deed is to be considered as recorded, 275. In what way the date of filing may be proved, 276. To whom the record of a deed is notice, 277. Of what facts the record is notice, .... 278. As to deeds disconnected from the chain of title, 279. Notice from auj' other source equivalent to record. 280. Possession of the premises is notice, when, . 281. As to what will constitute actual notice, 282. Notice to the agent is notice to the principal, 288. The degree of proof required to establish actual notice, 284. An unrecorded deed is void, when, .... 285. Of purchasers by quitclaim deed, 286. As to the right of a purchaser from an heir, 287. Purchasers at sheriff's sale entitled to benefit of statute, 288. Equity extinguished by a purchase without notice, 289. Effect of mistake in record, ..... 290. Seal of officer taking acknowledgment need not be recorded, 291. Whether the record of a deed is effectual until indexed, 292. Corrections and alterations of the record. 242 242 243 245 247 248 249 249 250 251 252 253 254 257 258 259 260 261 263 264 265 266 267 2h7 TITLE II.— Lea^k,s. CHAPTER V. OF LEASES IX GESEKAL. xVRTICLE I. OF THE DIFFERENT SPECIES OF LEASES. 293. Definition of lease, ...... 294. Modes of creating tenancies at common law, 295. Of the different kinds of leases, .... 296. Of an estate for life, ...... 297. Of a term of years, . . . 269 270 •-'70 270 271 XVI TABLE OF CONTENTS. SECTION. ARTICLE II. WHETHER A LEASE OR AX AGREEMENT FOR A LEASE. 303. Agreements for leases are of two sorts, .... 304. Whether a lease or an agreement for a lease, .... 305. The effect of a want of certainty, ..... ARTICLE III. OF THE PARTIES TO A LEASE. 307. Who may make a lease, ...... 308. As to a disseizee, ....... 309. The lease of a disseizee may operate by estoppel, 310. Ol lease made by infants, ...... 311. As to the lease of a person of non-sane mind, 312. Of lease made by married women, .... 313. Of a lease by the tenant of a term, .... 314. Joint tenants and tenants in common, 315. Of a lease by a mortgagor, ...... 31(). Leases by corporations, . . .* . 317. A trustee may grant a lease, ..... 318. Of a lease by a cestui que trust, ..... 319. Executors and administrators, ..... CHAPTER VI.— The Formal Parts of a Lease. ARTICLE I. DATE OF COMMENCEMENT AND TERMINATION. Preliminary remarks, ........ A certain beginning and certain ending essential to a term, A term originally uncertain may be rendered certain, how. The time of commencement, how fixed, ..... ARTICLE 11. WORDS OF DEMISE-PREMISES LET. The words of demise, . . ...... The description of the premises, . .... PAGE. 273 274 275 321. 322. 323. 324. .326. 327. 329. 330. 331. 333, 334. SS."). 330. 337. 338. 3?9. 340. 341. ARTICLE III. OF THE RESERVATION OF RENT. There must be a consideration— may be what, Of the words used in reserving rent, .... To whom reserved, ....... ARTICLE IV. CONDITIONS OF FORFEITURE AND RE ENTRY Purposes and form of such condition, What covenants may be enforced by condition, Conditions not favored in law, .... The demand necessary to make a condition available. What will constitute a breach of the condition. Proviso for re entry in case of forfeiture. Who may take advantage of a condition, Condition once waived cannot be enforced again. Until re-entry the estate remains ill the lessee, 276 276 277 278 279 280 281 282 2b2 282 283 283 283 284 283 285 286 287 288 289 289 290 , , 291 , 291 , , 292 , 292 . 293 • 294 , , 294 , 296 • • 96 TABLE OF CONTENTS. XVll SECTION. PAGE. AKTICLE V. THE USUAL COVENANTS IN LEASES. 843. Express and implied covenants, . . . . . . . 297 344. Of the covenants implied on tiie part of the lessor, . 297 345. The covenants implied on the part of the lessee, .... 299 346. AVho will be bound by implied, and who by express covenants, . 300 347. Real and personal covenants, .... ... 301 348. What covenants run with the land, and what do not, . . . 302 349. The effect of a covenant running with the land, .... 30.S 350. When assignees must be named, to be affected by a covenant, . 303 351. The express covenants usually entered into by the lessor, . . ;^04 352. The covenant for quiet enjoyment, ...... 304 353. The covenant to repair, ........ 305 354. The covenant to renew the lease, ...... 308 355. Covenants against incumbrances— for further assurance, . . 310 356. The usual express covenants on part of the lessee, . - . . 310 357. Of the covenant to pay rent, ....... 310 358. To pay taxes and other assessments charged upon the premises, . 314 359. The covenant to insure the premises, . - ... 315 360. Not to use the premises for purposes of trade, .... 316 361. Not to assign or underlet, ....... 317 362. To deliver up the premises in good repair, . . . . .318 CHAPTER VII.— The Execution, Assignment and Determination of Leases. ARTICLE I. OF the execution of leases. 364. How leases are made and executed to be valid, 366. In what the execution of a lease consists, 366. Of the execution of leases by agents, ..... 367. Leases usually by indenture— requisites of execution, ARTICLE II. OF THE ASSIGNMENT OF A LEASE. 369. Assignment defined, .....■•• 370. Who may make and what will constitute an assignment, 371. An assignment is either in fact or in law, .... 372. Assignments in law, .....•• 373. Of an assignment in fact, .....•• 374. The proper covenants to be inserted in the assignment of a lease, 375. The effect of an assignment of a lease, ..... 376. Continued— rights and liabilities of an assignee, 377. Of the assignee of the reversion. ..... ARTICLE in. modes of determining leases. 379. The subjects embracd under the present head, 380. Lapse of time, ..... • • 381. The happening of a specified event, . ... 382. Forfeiture for breach of condition. . ... 383. Merger, ..•.••■■•• 484. Surrender defined, .....•• 321 323 323 325 326 327 330 330 331 332 332 333 335 3;^" 338 338 339 342 344 XVlll TABLE OF CONTENTS. SKCTION 385. 386, 387. 388. 889. 390. Surrender maybe in express words or by operation of law, Of an express surrender, ..... Surrender by operation of law, ..... Tenant's disclaimer, ...... Failure of the lessor's title, ..... By force of some statute or the policy of the law, TITLE III.— Mortgages. PAGE. . 345 345 . 347 .349 . 350 352. CHAPTER VUI. NATURE AND HISTORY OF MORTGAGES. ARTICLE I. THE ORIGIN AND DEVELOPIVIENT OF THE LAW. 395. Definition of a mortgage, .... 396. The origin of mortgages, 397. The vivum vadium, . . . , . 398. The mortutim vadium, . . . , 399. Origin of the English law of mortgages, 400. A mortgage at the common law, 401. Origin and growth of the equity of redemption, 402. Two opposite sets of rules at law and in equity, 403. The doctrine reduced to a harmonious system, ARTICLE II. THE NATURE OF MORTGAGES IN THE DIFFERENT STATES. 406. Preliminary observations, ....... 407. The modern common-law doctrine of mortgages, 408. How this doctrine has been modified in some States, 409. How superseded by that of equity in other States, 410. The consequence resulting from these different views, 411. A classification of the States in respect thereto, . . . . . 354 354 . 356 356 . 357 . . 357 . 358 360 . 361 362 362 366 3&8 370 371 CHAPTEKIX. — Form and Kequlsitks of a Mortgage. ARTICLE I. WHAT CONSTITUTES A MORTGAGE. 413. The general requisites of deeds apply to mortgages, . . . 374 414. What is essential to constitute a mortgage at law, ... 375 415. What will constitute a mortgage in equity, ..... 378 416. Parol evidence to prove an absolute deed a mortgage, . . 380 417. Whether a mortgage or a conditional sale, ..... 383 ARTICLE II. A CLASSIFICATION OF THE DIFFERENT KINDS OF MORTGAGES. 419. The plan of the present chapter, ...... 386 420. Mortgages are divided into two general classes, . . . 386 421. What are legal mortgages, ......... 386 422. The common law form of a mortgage, ..... 387 423. Mortgages with power of sale, ....... 387 424. Deeds of trust in the nature of mortgages, .... 388 425. Equitable mortgages defined, ....... 389 426. Mortgages by deposit of title deeds, ...... 391 427. Vendor's lien for purchase-money, ...... 392 TABLE OF CONTENTS. XIX SECTION. PAGE. ARTICLE III. FORM GENERALLY. 429. No particular form necessary, . . . . . . . 394 430. Statutory forms, ......... .^95 431. The clauses of an ordinary mortgage, . .... 396 ARTICLE IV. THE GRANTING PART OF A MORTGAGE. 434. How far the rules governing purchase deeds apply, . . . ;:!96 5. The recital of the indebtedness, and covenant for payment, . 397 436. The consideration named in the mortgage, .... 397 437. The 'granting clause, . ....... 398 438. The description of the premises, ...... 399 439. The habendum, ......... 400 ARTICLE V. THE DEFEASANCE. 442. The usual form of the condition, ...... 401 443. The debt secured, ......... 402 444. The description of the debt, ....... 409 445. The time of payment, . . . . . . . .413 ARTICLE VI. SPECIAL STIPULATIONS. 447. The subjects to be discussed under the present head, . . . 416 448. Covenants for title, . . . ..... 416 449. The covenant for the payment of interest, . . . .417 450. To keep the premises in repair, . . ... . . 422 451. For the payment of taxes, . . ..... 423 452. To keep the premises insured, ....... 425 453. Reservation of the right of possession to the mortgagor, . . 427 454. Of the right to perform the condition before the time limited, . 428 455. Of the right to have a portion of the premises released, . . 428 ARTICLE Vn. THE POWER OF SALE. 458. The form and requisites of the [power, . .... 429 459. The events upon which the exercise of the power depends, . . 435 460. Purchasers not bound to inquire whether they have happened, . 436 461. Application of the proceeds of the sale, . . . . .436 CHAPTER X. — Assignments — And herein of Pur- chasers OF THE Equity of Redemption. ARTICLE I. OF PURCHASERS OF THE EQUITY OF REDEMPTION. 463. An important distinction, ....... 438 464. Whether a purchaser assumes the mortgage or buys subject to it, 4.39 465. Of a purchaser subject to the mortgage, ..... 440 466. Of one who undertakes to pay the mortgage, . . . .443 467. Of a purchaser of part of the mortgaged property, . . .447 ARTICLE II. ASSIGNMENTS OF THE MORTGAGE. 469. Conflicting views in the different States, 448 XX TABLE OF CONTENTS. SECTION. PAGK. 470. Assignments under the common law doctrine, . . . 449 471. Assignments under the equitable view of a mortgage, . . . 454 472. Rights and liabilities of assignees, ..... .457 473. Merger of interests, ........ 463 CHAPTER XI — Redemption, Payjient and Discharge. ARTICLE I. REDEMPTION. 500. The extent of the present article, 501. Remedies in tlie different States, 602. Foreclosure by suit in equitj^, 503. IJy proceedings at law, 504. Uy entry and possession. ARTICLE IIL FORECLOSURE BY SALE UNDER POWER. 507. The scope of the present article, 508. Power of sale a cumulative remedy, 509. When its exercise will be enjoined, 510. Who may exercise the power, 511. What notice is to be given. 467 468 470 472 473 476 477 480 482 485 486 476. Of the right to redeem, ....... 477. When this right is barred, ....... 478. Who may redeem, ........ 479. The sum payable to effect redemption, .... 480. Of the mortgagee's liability to account, .... 481. Contribution to redeem, ....... ARTICLE n. PAYMENT. 483. The effect of payment or tender before and after default, 484. As to the sufficiency of a tender, ...... 485. What constitutes payment, . ..... 486. Presumption of payment, .... 487. Subrogation, ......... ARTICLE IIL DISCHARGE, 490. Who may make or enter a discharge, ..... 487 491. Modes of effecting a discharge, ....... 489 492. The effect of a partial release of a mortgage, .... 492 493. A discharge obtained by fraud or made through mistake, . . 494 CHAPTER XH.— Foreclosure. ARTICLE I. WHEN THE RIGHT OF FORECLOSURE EXISTS. 496. At what time the right accrues, ...... 496 497. When barred by limitation, ....... 500 ARTICLE II. VARIOUS METHODS OF ENFORCING A MORTGAGE. 503 504 605 507 508 509 509 5H 614 515 TABLE OF CONTENTS. XXI SBCTION. PAGE. 512. Requisites of the notice, ........ 517 513. Conduct of the sale, ........ 524 514. Who may purchase, ........ 528 515. The deed 530 TITLE IV.— Wills. CHAPTER XIII. THE GENERAL REQUISITES OF A VALID DEVISE. ARTICLE I. THE NATURE OF A WILL. 618. Preliminary remarks, ........ 633 519. Definitions, ..... ... 634 520. The distinction between a will and a deed, ..... 535 ARTICLE II. THE PARTIES TO A DEVISE. 523. There must be competent parties to every valid devise, . . 536 524. The age at which persons may devise their estates, . . .537 525. Coverture as a testamentary disability, .... 538 526. Persons of non-sane mind— duress, ...... 539 • 527. Deaf, dumb and blind persons, ...... 540 528. Persons under disability for crime. ...... 541 529. As to the devisee, ........ 541 ARTICLE III. THE PROPER SUBJECT OF A DEVISE. 531. Proper subject-matter essential to every devise, . . . .642 532. What law governs, ........ 5^3 533. What estate or interest in land will pass by devise, ... 543 534. As to after acquired property, ...... 644 ^35. Cumulative devises, ........ 544 536. The equitable conversion of real estate into money, ... 545 ARTICLE IV. THE EXECUTION OF WILLS. 539. The subject governed by statute, ...... 546 540. Will must be in writing— on what material, .... 546 541. Signature of the testator— seal, ....••• 548 542. Attesting witnesses, .....•■• 550 543. Holographic wills, 557 CHAPTER XIV.— Of the Revocation and Republica- tion OF Wills. ARTICLE I. REVOCATION. 546. A will always a revocable instrument, ..... 558 547. Methods of revoking wills, ^''^ 548. Revocation by subsequent will or codicil, .... 559 549. By the cancellation or destruction of the will, . . . .661 550. By the alienation or alteration of the estate, .... 664 551. By marriage and birth of issue, ....••• 566 XXII TADLE OF CONTENTS. SECTION. PAGB. ARTICLE 11. KEPUBLICATION. 553. Express republication, ....... 568 554. Constructive republication, ....... 569 CHAPTER XV.— Of the Probate of Wills and of THEIR Registration. ARTICLE I. OF THE probate OF WILLS. 557. Preliminary to the probate, ....... 571 558. Jurisdiction of the probate of wills— foreign wills, . . . 573 559. Mode of proof, ......... 576 560. The effect of probate, 577 ARTICLE II. OF THE registration OF WILLS. 563. Will and proof to be recorded in the office of probate, . . . 579 564. Certified copies may be used in evidence, or recorded in other counties, 580 565. Foreign wills probated and recorded as other wills, . , . 580 566. Where wills are to be recorded in the registry of deeds, . . 580 CHAPTER XVI.— Of the Construction of Wills. ARTICLE I. GENERAL RULES OF CONSTRUCTION. 569. Extent of the present chapter, ...... 582 570. The intention of the testator the object of all construction, . . 583 571. Jarman's rules for the construction of wills, .... 584 ARTICLE II. CONSTRUCTION AS TO DEVISEES. 574. Misnomer and misdescription, . . . . . . . 589 575. Who are entitled under the description, ..... 590 576. Tabm'ri; per stirpes or per capita, ....... 592 577. Lapsed devises, ......... 593 ARTICLE III. AS TO THE ESTATE AND PROPERTY DEVISED. 580. What general words carry real estate, ..... 593 581. The estate or interest which passes, ..... 594 582. Description of the property devised, ...... 595 ARTICLE TV. OF A POWER TO SELL LANDS. 585. By what words a power is created, ..... 596 586. Execution of a power in a Avill, ...... 598 TA15LE OF CASES. [The references are to sections.] Abbe V. Goodwin, 476. Abbott V. Abbott, 88, 01. Allen, 164, 175. Alsdorf , 222. Baldwin, 8. Creal, 26. Cromartie, 183. Hurd,32. L'Homedieu, 9. Abell V. Coldwood,2. Coons, -466. Lathrop, 183. Radclifl, 4, 354. Williams, 387. Abrams V. Ervin, 256. Academy of Music v. Hackett, 336. Acer V. Hotchkiss, 487. Acer V. Westcott, 74, 277. Ackens v. Winston, 445, 449. Acker V. Ledyard, 19. Phcenix, 78. Ackla V. Ackla, 491. Adair v. Adair, 472. Adam V. Ames Iron Co., 48. Adams V. Adams, 582. Alkire, 101. Bishop, 255. Buchanan, 427. Corriston, 409. Cuddy, 288. Field, 541. Goddard, 886. Guerard, 136. Hayden,271. Knowlton, 36. Medsker, 68. Parker, 470. Pease, 105. Ross, 25, 171. Scales, 4. Scott, 513. Stevens, 89, 442. Stringer, 28. Valentine, 9, 126. AVarner, 99. Williams, 174. Winne, 550. Addis V. Graham, 290. Adkins V. Lewis, 480, Adluna V. Yard, 50. Adsit V. Adslt. 535. ^tna Life Ins. Co. v. Corn, 473. Agricultural Bank v. Rice, 68. Ahrend v. Odiorne, 427. Aiken v. Gale, 467, 481. Milwaukee, etc. R. Co., 473. Smith, 304. Ainsworth v. Ritt, 357. Aitkin v. Young, 8. Akers v. Ackers, 575. Alabama, etc. Ins. Co. v. Boykin, 265. Pettway, 36. Albert v. Burbank. 221. Albertson v. Ashton, 7. Albin V. Lord, 312. Albright v. Cobb, 409. Alcott V. Bynum, 511, 512. Alderman v. Neate, 304, 305. Aldrich v. Dunn, 427. Alemany V. Daly, 238. Alexander v. Alexander, 212. Alexander v. DeKermel, 204. Alexander v. Merry, 260. Saloy, 443. Schreiber, 173. Todd, .36. Algurv. Gardner, 449. Allaire v. Day, 37. Allard v. Lane, 491, Allen's Will, 542. Allen V. Allen, 73. Bennett, 6. Clark, 478. 481. Davison, 9. Deming, 39. Dent, 382. Griffin, 642. Holten, 111, 171. Hooper, 32, 27. Jaquish,364. Kingsbury, 104. Lenoir, 263. Little, 525. Paul, 3S8. Kanson, 514,458. Sawyer, 486. Say ward, 169,171,173. Taft, 108. Wooley, 347. 371. Woodruff, 425. XXIV TABLE OF CASES. Alley V. Bay, 183. Lawrence, lo-t. AUis V. Billings, 26. Allore V. Jewell, 26, 29. Alstin V. Cundiff, 417. Altringerv. Cupehart,79. American Board v. Nelson, 551. American Emigrant Co. v. Call, 291. Amis V. Satterlleld, 29. Amonett v. Amis, 448. Amory V. Fairbanks, 485. Fellows, 542. Kaunoffsky, 387. Meredith, 155. Amphlett v. Ilibbard, 183. Anderson v. Baughman, 100. Baumgartner, 471. Dugos, 273. Knox, 166, 176. Lay ton. 74, 277. Lewis, 204. Powers, 2. Smith, 36, 388. Shockley, 8. Tompkins, 31. Andress v. Weller, 574. Andrews v. Andrews, 9. Brumfleld, 580. Davidson, 166. Fiske, 470. Murphy, 87. Pearson, 8". Poe, 449. Pond, 449. Spurlin, 115. Todd, 88. Torrey, 472. Angier v. Masterson, 397. Anketel v. Converse, 427. Ann Arbor Sav. Bank v. Webb, 473. Annan v. Tolson, 263. Annapolis & E. R. R. v. Gantt, 411. Anniu v. Annin, 32. Anson v. Townsend, 8. Anthony v. Anthony, 416. Herman, 466. Hutchings, 26, 29. Rogers, 480. Antoni v. Belknap, 381. Anworth v. Johnson, 345. Apgar v. Christopher, 31. Apperson v. Moore, 438. Appleget V. Smith, 5.T2, 534. Appleton V. Boyd, 490 Archambau v. Green, 414. Aifridson v. Ladd, 246. Ar^uello v. Edinger, 8. Arlin v. Brown, 42". Armentrout v. (iibbons, 289. Armstrong v. Armstrong, 541. Darby, 173. Dominick, 509. Kerns, 153. Pearce, 180, 195. Ross, 249, 260. Sanford, 509. Stovall, 2t4. Wheeler, 376. Am v. Hoerseman, 36. Arnold V. Foot, 443. Mattison, 416. Patrick, 225. Richmond Iron Works, 26, Stephen.son, 8. Arnot V. Alexander. .354. McClure, 615. P.>st, 483. Arques v. Wasson, 438. Arrisou v. Harmstad, 20. Arthur v. Anderson, 206. Weston, 70. Artz V. Grove, 415. Asay V. Hoover, 407. Ashcroft V. Eastern R. R., 118, 119. Ashville Div. v. Astor, 69. Ashley v. Warner, 381. Aston V. Robinson, 9. Astor V. Hoyt, 37(t. Miller, 348, 358. Robinson, 9. Atchison etc. Co., v. English, 4. Athens v. Nale, 168. Atherton v. Toney, 465. Atkins v. Kron, 582. Atkinson v. Augert, 483. Dixon, 362. Duffy, 512. I'billips, 37. Stewart, 4b3 Atlantic Dock Co. v. Leavitt, 61. 466. Attorney General v. Gleg, 143. Attwater v. Attwater, 125. Kinman, 512. Atwood V. Cobb, 10. Fisk, 443. Vincent, 427. Aubuchon v. Bender, 2S4. Auburn Church v. Walker, 108. Auburn Theo. Sem. v. Calhoun, 559. Augur V. AVinslow, 484. AuU V. Lee, 444. Aultman v. Obermeyer, 32. Richardson, 69. ^_. Auriol V. Mills, 346, 372. - Aurora City v. VVest, 449. Austin V. Ahearne, 309. Austin, 443. Downer, 415. Imus, 449. Austrian v. Davidson, 88. Averillv. Taylor, 304. Averill Coal Co. v. Verner, 449. Ayer v. Emery, 126. Ayers v. Ayers, 542. Avery v. Pixley, 380, 549. Ajre v. Ayre,33. Ayres v. Harness, 21. Probasco, 183. Walte, 477. Ayres v. Watson, 443. Babb V. Clemson, 20. Babbitt V. Johnson, 256. Babcock v. Hoey, 181. Kennedy, 407. Scoville, 376. Utter, 104. Bach V. Abbott, 472. Backus V. McKoy, 164. Bacon v. Cattrell. 480. Bowdoin, 304. Gooduow, 472. Kennedj', 512. Lincoln, 165. Mclntire, 41i7. Western Furniture Co., 382. Badger v. Phinney, 25. Bagley v. Blackman, 542. Morrill, 101. Bailey v. Delaplaine, 386. Gould, 471. Myrick,480, 481. Patterson, 575. Richards. 383. Smith, 472. Tajlor, 19. Timberlake, 478. TABLE OF CASES. \ X V Wells, 375. 386. Willaid, 487. Bailie V. llodway, :^77. Bainbridge v. Owoii, 4S0. Baird v. Evans, 25*;. Baker's Appeal, 64(j. Baker v. Bauk of Louisiana, 438. Bliss, 281. Bowdoin.304. Dening, 190. Haskell, 208, 211, 212. Hunt, 1()4. Matcher, 74. Mather, 277. Morton, 28. Noll,, ^88. Piersun, 479. Pratt, 386, 387. Stewart, 33. Washington, 271. Wind, 422. Wood bridge, 541, 542. Balbage v. Hottos, 260. Balch V. Onion, 47n. Baldiick V. Garvey, 26. Baldwin v. Brow n, 102. Fhigg, 27 Jenkins, 414, 429. iMarshall, 292. Richardson, 31. Tuttlc, 37. \Valker, 377. Bales V. Perry, 613. Ball V. Dunsteiviile, 245. Wyeth, 497. Ballentine v. Proudfoot, 526. Ballard v. Child, 171. Perry, 261. Balliet's Appeal, 5.50. Ballow V. Hale, .^1. Bamberv. Savage, 4. Bane v. Detriek, 28. Banfleld v. Whipple, 39. Bangs V. Lowher, 174. Bank v. Carpenter, 425 Houseman, 55. Bank of Cumberland v. Bugbee, 196. England v. Tarleton, 469. Hamilton v. Dudley, 319. Indiana v. Andei son, 471. Kentucky v. Haggin, 289. Jones, 200, 249. Limestone v. Penick, 18. Louisville v. Gray, 231. Metropolis v. Guttschlick, 497. Ogdenburg v. Arnold, 496. Rochester v. Gray, 194. South Carolina v. Rose, 443. U. S. V. Davis, 282. Dunn, 5. Husuian, 37. Waggener, 449. Utica V. Mersereau, 309. Westminster v.Whyte,415,416. Bancroft v. Curtis, 32. Banks v. Banks, 549. Haskie, .%4. Jones, 571. Lee, 19. McClellan, 449. Ogden, 104. Banning v. Armstrong, 512. Bannister v. Huberts, 449. Banta v. Vreeland, 493. Barber v. Babel, 1p3. Cary, 154. Barclay v. Bates, 4. Bareland v. .Mayo, 36. Barger v. Miller, 246. Barhydt v. lUngess, 375. Barker v. Bell. 549, 553, 554. Flood, 473. Iveate, 373 Parker, 470. Rollins, 181. Barksdale v. Barksdale, 549. Klam, 124. Barlow v. Hinton, 206. McKlnley, 167. St. Nichols Nat. Bank, 167. B :inard v. Campan. 289. Kellogg, 5. Barnes v. Barnes, 9. Brown, 8. Burt, 118. Cauiack, 493. Hatch, 212. Taylor, 146. Worlich, 449. Barnet v. Barnet, 265. Barnett v. Barnes, 357. Barney v. Keith, 173. Little, 271. McCarty, 291. Sutton, 261. The City of Keokuk, 105. Barnstable Savings Bank v. Barrett, 491. Barnuin v. Farthing, 32. Barren v. Hanrick, 146. Barrett v. Barrett, 279, 281. Carter, 417. Duke of Bedford, 99. French, 28, 116. Bariington V. Bank of Washington, 18. Barron v. Martin, 477. Barrows v. Barrows, 37. Barruso v. .Madan. 174. Barry v Coombe, 4. Hoffman, 204. 3arter v. Greenleaf, 79. Bartholomew v. Candee, 164. Bartholomew's Appeal, 548. Bartlen v. Borden, 407. Drake, 38, 190, 245. Farrington, 389. Sutherland, 154. Barton v. Morris, 265. Baslord v. Pearson. 4, 165. Bason V. King's Mt. Min. Co., 191. Bass V. Estill, 252, 271. Bassaid v. White, 2.52. Basse v. Gallegger, 49*5. Bassett V. Hassett, 444. Brown, 38. Bassett v. Hawk, 246. Batchelder v. Dt;un,.S23. Batchelor V. VVhilxker, 85, 114. Bates V. Conrow, 477. Foster, 173. Ilurd, 146. Norcross, 168, 169. Ruddlek, 467, 481. Batting v. Martin, 373. Batty V. Snook, 477. liaughman v. Penn, 36. Baum V. Grigsby, 427. Baxter V. Arnold, 108. Bush,25, .33, 310. Bodkin, 27. Dear, 414. Lansing, 382. Smith, 33. WlUey, 417. Bay V. Williams, 466. Bayer v. Cockerill, 33, 59. Bayley v. Bailey, 205, 211, 414. Greenleaf, 427. Baylies v. Pavson, 146. Bayliss v. \Viili(im«. 29, 79. Bi. zemore v. Davis, 277. XXVI TABLE OF CASES. Beach v. Miller, 16;. Nixon, :«2. rackard, i9. Shaw, 478. White, »7. ., Beachcroft v. Beachcroft, o<4. ««^*'" Son car spring CO., a77. BealIv.BevUl-Her.m.^^^ Beaman V. Buck, i. Kusdcll, W. Whitney, 70, 2Db. Bean V. Atlantic & St. I.. K. Co., 4u^ Atwater, 1/4. Boothby, 473. Coleman, 119. Keninuir, 113. Mayo, 167. Smith, 36. Valle,4. Beard9leyv.Kmght.104. Beasley v. Bray, 36. Beatie v. Butler, 4o8,ol2. Beaumont v. Keim, &o.i. Beaven v. Speed, 18.^. Becar v. Fluea, 29/ Becker v. Quigg, 249, 260. Beckett, Re, 543, y93. Beckwith v. Taylor, 6. Bedell V. McClellau, o08 o09. Bedford v. Terhune, .349, 373, 38/. Bedford v. Tupper, 2.)1. Bedford Com. lus. Co. v. Coveu, J». Bedilin v. Seaton, 14b. Bedingerv. Wluirton,2D. Beebe V. Morris, i>02. Swartwout, l/O. Beekman v. Frost, 289. Beer v. Beer, 314._ Beers, Ex parte, -.Ai. Behrman v. Barto, ..o4. Belcher V. Belcher, .30. Belden v. Seymour, /9, 106. Belk V. Massey, 273. Bell V. Adams, 31. Day, 449. fIrre\'JB'ank.208,209.214. Fry, 271. Golding, 327. Humphrey, 570. Keefe, 180, 195. Lent, 449. Mayor, etc., 480. McDuffle, 14.. Morse, 471. Prewitt, 444. Radclilf, 438. Scammon, 53, 5o, /6, 116. Slmpbon,_471. Tennv. 473. Twilight, 277, 280. 288. Belloc V. llogers, .502. Belmont v. Coinan, 464. Belo V. Mayes, 260. Beltram v. Villere, 4ol. Benedict v. V.''"^'^";on -li Benhaim v. Rowe, 480, .)14. Benjamin v. Gavaroc, o02^ ■* Heeney, 34o, 3o3. Zell,3. Benkendorf v. Vincenz, 512. 513. Bennv t v. Bittle. 582. Bennett v. Abrams.J. Bittle, 3d/. Brundage, ol3. Culver, 126._ Juiikins, 177. Bennett v. McCuire, 36. Paine, 2;)8. Shipley, 256^. Solomon, 4/1. Stevenson, 44o. Titherington, 284. Union Bank,41o. Waller, 208,205). VVolverton, 41o. Bennockv. Whipple. 414. Bensel v. «i/.iy',f;-*A., Benslcy v. Atwill, 212. Burdon, /3 Benson v. Hobbs, 174. Blntreyv.Whittemore,493. Benton v. Horsley^ 107. Benton v. Jones, 3/. Haines, 18. Whitney. 9. Wright, 8/. Bertie v. Falkland, 124. Bertles v. Noon an 33. Bertram v. Cook, ..88. Curtis, 167. Besser v. Hawthorn, 409, 4/3. Bethell v. Moore, 54J. Bethlehem v. Annis, 4«. Betsey v. Ton;en<-;e. 24. Beverly v. laiis, 289. Bibbv. Freeman, 3/. Bicerv. Hall,526. Bickley v. Keenan, DO. Biddlev.CoiTell.1'4- Littlefield, 307. Reed, 344. Biddulph V. St; John, 484. Bidwell V. Whitney, 509 Bigelow V. Hubbard, 16/. ^ Toplitf,^*51, 2/4. Biggs V. Brown, 297. Biglerv. Furman, 3S8. " Waller, 512. Billing's Est ,673. Billings V. Carney, 304. BulSis V.Kankakee coal Co., 88. Morrow, 2.35. Stark, 66, 204, 213. BiUingsley v. ^^:^,, Billington v. Welsh, 280. Bingham V. Bailey, 25. Thompson, 415. Binsse v. Paige, 415. Birch V. Birch, o2bins,.36. Bissell V. Bugbee. 466. Kellogg, 443. ' Bissett V. Bissett, 263 Bitter V. Calhoun, 497. Bivens v. Phifer, o/o. Black V. Ellis, 232. Erwin, 'Al. Gregg, 425. Hill. 571. Hills, 25. Hoy t, 208. TABLE OF CASES. XXVll Thornton, 213. Shrev(-,-2'r.>, 226,227. Blackbeiby v. H.iltou, 76. J?lackbnrn v. Gregson, 427. Blackmore v. Boardiuun, /,'A. Blitf^ge V. iMiles, 155. Blair V. Bass, 471. Hardin, 17.^. Vailiant, 251. Ward, 41)2. Blain v. Stewart, 249. Blake V. Burnliam, 175. Blake v. Flash, 65, 204. Foster, S18. Williams, 471. Bakeley v. BlHkely,29 Blakemore v. Taber, 438. Blachard v. Blanchard, 547, 549. Brooks, 171, 407. Kenton, 416. McDougall, 8. Tyler, 65, 201, 231. Bland v. Tally, 3. Blaney v. Bearce, 407, 414. Rice, 102. Blankenship v. Stout, 25. Bledsoe v. Nixon, 449. Bleecker v. Ballow, 358. Smith, 340, 382. Blethen v. Dwinel, 270, 486. Blewer v. Brightman, 580. Blight V. Banks, 284, 427. Schenck,226. Bliss V. Clark, 235. Mclmyre, 20. Blockley v. Fowler, 514. Blodgett V. Moore, 551. Wadhams, 491. Blondeau v. Sheridan, 166. Blood V. Blood, 251, 271. Goodrich, 230. Humphrey, 231. Bloomer V. Henderson, 280,472. Merrill, 387. Waldron, 154, 237. Blossom V. Brightman, 31. Vancourt, 84, 167, 173. Blount V. Blount, 76. Moore, 585. Blum V. Mitchell, 480. Blyer v. Monholland, 465. Blythe v. Dennet, 382. Board etc. v. Babcock, 291. Boardman v. Dean, 78, 212. Larrabee, 473. Read, 87,88. Boarman v. Catlett, 478. Bobb V. Barnum, 71. Bobbitt V. Flowers. 443. Bocock V. Pavey, 232. Bogart, Re, 542. Bogert V. Hertell, 536. Boggs V. Anderson, 280. Bogle V. Hammons, 28. Bogue V. Williams, 280. Bogy V. Shoab, 59. Bohanan v. Walcot, 549. Bohannan v. Combs, 37. Bohannons v. Lewis, 196. BoUes v.Duff, 502. Boiling V. Teal, 2f>n. Bolton V. Lann, 102. Bond V. Aitkin, 31, 314. Bond's Appeal, 571. Boody V. Davis, 208, 212,444. McKinney, 25. Booker v. Anderson, 479. Jones, 438. Wingo,27. Booknan v. Burnett, 496. Kool V. Mix, 2i, 27,aiO. Boon V. Murphy, 427. Boone V. Clarki"-, 234. Moore, 67. Boorman v. .Johnston, 5. Booth V. Barnum, 444. Cook, 261. Hoskin9,414. Starr, 162. Boothroyd v. Kngle.'>, 70. Boquot V. Coburn, 478. Borland v. Wnlr!Uh,263. Borum v. King, 76. Bosley v. Boslt-y, 550. Bossuid V. While, 271. Boston V. Condit, 31. Boston Bank v. Chamberlin, 25. Reed, 407. Bostwick V. Atkin, 25. Williams, 167,168, 170. Boswell V. Goodwin. 443. Bos worth V. sturtevant,87. Bougher v. Wilklns, 344. Bouldin V. Reynolds, 28. Bouli^;rij' v. Forti-r, 472. Bounrr v. Metcalf, 79. Boutwell V. Steiner, 514. Bowget V. Monioe, 9. Bowaish V. Dubuque, ."588. Bowe V. Harrisburg, 353. Bower V. McCormick, 74. Bowers v. Bowers, 3, 8, 551. Chambers, 193. Porter, 575. Oyster, 413. Bowen v. Beck, 466. Bowen v. Johnson, 550. Kurtz, 464. Wood, 438. Bowes V. Seeger, 490. Bowles V. Wathan, 29. Bowling V. Cook, 471. Bowman v. Conn, 2, 3. Foot, .%2. Planter, 485. Walford, 8. Bowser v. Cravener, 4. Bowj'er v. Martin, 36. Seymour, .382. Boxheimer v. Gunn, 486, 491. Boyd V. Cudderback, 183. De La Montaguie, 37. Harris, 486. ' Parker, 48.5. Slayback, 204. Boyer v. Bover, 502. Boykins v. O'Hara, 2.36. Boyle V. Edwards, 177. Boylston v. Carver, 108. Boynton v. Reynolds, 180, 195. Sawyer, 182. Boze V. Arper, 2a7. Brackett v. Biddon, 288. Waite, 37. Bradford v. Belfleld, 458. Damson, 259. Harper, 427. Marvin, 427. Pitts, 9t). Randall, 194. Bradhurst v. Bradhurst, 578. Bradlee v. Boston Glass Manufac- tory, 246. Bradley V. Chester Valley R. Co., 458, 502. Fuller, 407. Snyder, 479. West, 257. Brady v. Cubitt, 551. Spurck, 59, 164, 176. Waldron, 450. XXVlll TABLE OF CASES. Bragdon v. Hatch. 512. Bragg V. Paulk, 146. Brain ard v. Cooper, 502. Braman v. Bingham, 224. Brame v. Craig, 183. Bramhall v. Flood, 444. Branch Bank v. Frj', 407. Brand v. Brand, 201. Brandon v. Brown, 25. Brandt v. Foster, 165, 170. Branger v. Manciet, 170, 344. Branhan v. San Jose, 50. Brannon v. Brannon, 255. Hursell,443. Brant v. Robertson, 417, 443. Virginia Coal & Iron Co., o8o. Wilson, 548. Brant's Will, 535. ^ ., ^ „ ^a- Brantley v. Southern Life Ins. Co., 23o. Wolf, 25. Brattle Square Church v. Grant, 127. Brattonv. Allison, 449. Brauns v. Stearns, 5. Brawner v. F'ranklin, 25. Bray V. Clapp, 32. Brearly v. Brearly, 571. Breathitt v. Whittaker, 546, j4i. Breckenridge v. Brooks, 480. Clinkiabeard, 8. Ormsby, 25, 26. Todd, 204. Breeding's Heirs v. Taylor's Heirs, 3/7. Brenner v. Bigelow, 388. Brent v. Yerton,27 Bressler v. Kent, 27. Brevard v. Neely, 220. Brevoort v. Randolf, 443. Brewer v. Baxter, 520. Connell, 182. Dyer, 331, 373, 386, 387. Hardy, 55, 56, 78, 116. Staples, 465. Brewnan v. Wilson, 31. Brewster v. Hill, 297. McFrempry, 353. ^triker, 148, 157. Brewton v. Watson, 56. Brick V. Coster, 170. Bridge v. Hubbard, 449. Bridger v. Pierson, 118, 119. Bridges v. Eggleston, 36. Longman, 423. Bridgham v. Tileston,373. Briggs V. Briggs, 116, 512. Fish, 395. Uannowald, 471. Langford, 472, 534. Lowry, 370. Morse, 167. Seymour, 415, 491. Brimmer v. Sohier, 554. Brinsmet v. Weaver, 27. Brinckerhoof v. Remsen, 542. Bringloe v. Goodson, 158. Brink v. Spaulding, 6. Brinkerhoff v. Olp, 4. Brinkman v. Jones, 409. Brinkmeyer v. Browneller, 443. Brinley v. Mann, 246. Whiting, 24. Brinton v. Seevers, 260, 265, 271. Brisbane v. Stoughton, 423, 4d8. Brittaln v. Work, 206. Brobst V. Brock, 407, 486. Brockenbrough v. Ward, 174. Brocket v. Foscue, 79. Brohawn v. Van Ness, 364. Bronson v. Coffin, 167, 236. Kinzie, 501. La Crosse R. Co., 443. Brookbank v. Kennard, 32. Brookfleld v. Goodrich, 274. Brookhaven v. Baggett, 304. Brookings v. White, 443, 445. Brooks v. Chaplh., 257. Dalrymple, 37. Evetts, 570. Ishell,221. Moody, 167. Sullivan, 31. Wheelock, 2. Brossart v. Corlett, 119. Brouwer v. Jones, 360 Brower v. Callender, 28. Brown v. Austen, 208, 209. Bamser Coal Co., 285. Becknall, 486. Blydenburgh, 470. Brown, 32, 186,211,550. Caldwell, 25. Christie, 427. Clark, 542, 554. Coble, 4. Cole, 476. Combs, 146. Coon, 183. Cram, 411. Crump, 345. Dean, 429. Delaney, 458, 510. Dewey, 417. Eaton, 7. Higgs, lis. Huger, 101. Jackson, 171. Lapham,487. Leach, 453. Lindsay, 312. Lord, 8. Lunt, 256, 271. MCxVliSter, 542. McCormick, 309. Manning, 34. Manter, 249, 251,279. Moore, 256. Mckle, 414. Parsons, 354. Peck. 28. Brown v. Pforr, 241. Pinkham,21. Powell, 313. Reynolds, 224. Simons, 492. Simpson, 271. Spivey, 37 Staples, 448 Stewart, 407,411. Thorndike, 649, 550. Thrale, 111. Vanlier, 427. Wood, 600. Worccifter Bank, 478. Young, 170. Brown's Admr. v. Bragg, 382. Browne v. O' Den, 329. Brownfield v. Wilson, 548. Brownlee v. Arnold, 445. Bruce v. Bonney, 493. Perry, 249. Bruck v. Tucker, 9. Brueggeman v. Jurgensen, 9. Brugman v. Noyes,360. Brummetv. Weaver, 2/. Brunsonv. Morgan, 31. Brunswick-Balke Co. v. Brackett, 266. Rees, 344. Brunswick Sav. Inst. v. Grossman, 97. Bruse v. Nelson, 493. Brush v. Ware, 74. Wilkins, 551. TABLE OF CASES. XXIX Bryan v. Bradley, 43, 136, 207. Cowart, 416. Uamirez, 2G0. Wash, 205, 215. Bryant v. Cai>on Kiver Lumbering Co . 508. Damon, 470, 471. Derberiy, 575. Erskine, 443. Vix, 472. Brydon v. (;ampl)ell, 252, 271, 289. Buchanan v. Griggs, 25. Hiizz,iid, 27. Moore, lOH Monroe, 401. Buck V. Axt,28 Payne, 409. Bucker v. Street, 171 Buckland V.Hall, 854. Buckley v. Beara^ll•e, 4 Daley, 408, 409. 411. Early, 266. Buckmaster v. Harrop, 4, 8. Kelley, 486. Buckner v. Warren, 333. Budd V. Brooke. 111. Buell V. Cook, 304. Irwin, 261. Buffalo U. R. Co. v. Stigeler, 101. Bufford V. ^mith,496. Buffum V. Green, 211. Hutchinson, 85. Buhose V. Young, 275. Bulkley v. Buffiugion, 212. Chapman, 470. Dayton, 490. Bullard v. Briggs, 79. Bowers, 182. Johnson, 370, 377. Bullene v. Garrison, 256. Bullitt V. Taylor, 37, 212. Bullock V. Dommiit, 845. Bumgardner v. Allen, 464. Bunce V. Keed, 512. Bunde v. McKuiglit, 542. Bunham v. Kidwell, 26. Bunker V. Barnuui, 415, 429. Bunn V. Ahl, 36. Winthrop, 213. Bunstv. Davis, 533. Buntin v. Johnson, 542. Burbankv. Gould, 460. Pillsburv, 167. Warwick, 472. Burchard v. Frazer, 443, 449. Burden v. Thayer, 377. Burdeno v. Amperse, 32. Burdett v. Clay, 443. 471. Burdick v. Burdick, 24. Jackson, 425. Burge V. Smith, 181, 182. Burguin v. Bishop, 19. Burgess v. Bollock, 26. Burk v. Hill, 167. Burke v. Beveridge, 175. Nichols, 165, 170. Burkholder v. Cased, 205, 206. Burleigh V, Clough, 148. Burlington University v. Barrett, 532 Burnes v. McUubbiti, 337. Burnet v. Burnet, 571, 576. Denniston, 478, 509, 512. Burnett v. Lynch, 37u. I'ratt, 490. McClung, 18, 260. Scribner, 304. Burnham v. Chandler, 252, 271. Martin, 389. Burnley v. Thomas, 33. Burns v. Burns, 549. Fox, 8. Lynde,21. 245. Taylor, 427. Thayer. 514, 515. Burnside v. Wayman, 21, 425. Terry, 183. Burr V. Beers, 466. Stenton, 809,344,389. Veeder,413 Burrell v. Letsou, 282. Bu-rill V. Nahani l'.ank, 236. Burt V. Timuions, 36. Burton v. Boyd, 205. Martz, 271. Keecis, 1'9. Burtonshow v. Gilbert, 549. Burwell v. Jack-on, 344. Busey v. Ueese, 56, 76. Bush V. Bush, 650. Cooper, 173, 443, 4s3. Cushman, 472. Golden, 283. Lathrop, 472. Sherman, 458, 512. Bussey v. Gross, 26. Bussing V. Grain, 274. Bussnaanv. Granster, 314 Butcher v. Rodgers, 59, 171. Yocum, 281. Butler V. Butler, .87, 416. Gale, 167. Haskell, 9. Huestis, 570. Ladue, 458, 496. Roys, 31. Stevens, 280, 281. 283. St ratten, 576. Butterfleld v. Beall, 230. Earnham, 459. Hamant, 671. Bybee v. Hageman, 88. Byers v. Mc(;lanahan, 205. Byington v. Moore, 208. Byles V. Tome, 471. Bynum v. Rogers, 149. Byrane v. Boger.s, 336. Byrd V. Curliii, 36. Ludlow, 95. Byrne v. Becker, 36. Rich, 175. Byron v. Ma> , 5(-2. c. C, C. & I. Ry. Co. V. Coburn, 124. Cabeen v. Brekenridge, 280. Cabot V. Haskins, 6. Cad dell v. Allen, 246. Cadmus v. Fagan. 167. Cadman v. Lubbock, 484. Peter, 416. Cadwallader v. App, 4, 6. Cady v. Shepherd, 31. Cagger v. Lansmg, 226. Cahill V. City Mut. Assn.'.254. Cabo v. Endre:?s, 27, Cahoon v. Laffan, 478. Caldwell v. Bower, 170. Caldwell 571. Fraim, 425. Fulton, 270. Head, 256. Kirkpatrick, 168. Calhoun v. Paducah K. R., 488. Calh.rd v. Matthews, 443. Callaway v. Fash, 260. Calloway v. People's Bank of Belle- fontaiuf-, 512. Calmes v. Buck, 85. XXX TABLE OF CASES. Calumet, etc. Co. v. Russell, 260, 263. Calvert v. Bradley, 370. Calvo V. Daviss, 4t)6. Camarillo v. Fenlen, 388. Canibellv. Macomb, 460. WorthiDgton, 415. Cambridge Valley Hank v. Delano, 74 277. Cameron v. Mason, 427. Camp V. Wood :i.")3. Campau v. (;odfrey,31. Campbell v. l{uldwin,427. Dearborn, 416, 417. Jobnson, 87,88,155. Lewis, 348. Logan, 542. Swan, 513. Thomas, 226. Whitson, 36. Canal Commissioners v. The People, 105. Candee v. Burke, 512. Canedy v. Marcy, 8). Canfleld v. Ford, 327. Shear, 465. Cannon v. Cannon, 204, 205. Collins, 8. Handlev,223. McNab, 414. Canton v. Dorchester, 36. Capal V. McMillan, 154. Cape Girardeau Co. v. Harbison, 49(. Cardwell v. Perry, 33. Carey v. Baughn, 553. Uaulels, 165. Carlton v. Carlton, 542. Jackson, 487. Carman v. Pultz, 490. Carnall v. Duval. 443, 445. Carnes v. Piatt, 208, 213. Carpenter v. Buulden, 571. Bowen, lOl, 408. Carpenter, 411. I)enoon,557. Dexter, 251, 252, 257, 259, '260, 265. Logan, 472. Muren, 36. Thompson, 309. Washington Ins. Co., 452. Williamson, 59, Carr v. Breese, 37. Carr, 416. Ellibon,354. Hoobs, 427. Holbrook, 415. Hoxie, 211. Rising, 425. Carrick v. French, 225. Carrodine v. O'Connor, 508. Carroll v. Ballance, 411. East St. Louis, 33. Carskaddon v. Kennedy, 6 Carson v. McCaslin, 114. Carstairs v. Taylor, 353. Carswell v. Lovett, 33. Carter V. Abshlre, 513. Bennett, 471. Burr, 173, 357, 485. Carter, 416. Champion, 252. Chaudron, 196. Corley, 201. Hammett, 375. Holman, 425. Jackson, 201. Reddisli, 571. Rockett, 4.52. Shorter, 4. Taylor, 395, 487. Thomas, 550. Cartwright v. Gardiner, 340. Caruthers v. Humphrey, 483. Carver Mer. Co. v. Hulme, 33. Carver v. Jackson, 73, 208. Casad v. Hughes, 353. Casady v. Bosler, 509. Casborne v. Scarfe, 401. Case, lie, 542. Case V. Case, 29. Devise, 125. Mercer Street, 173. Cashman v. Henry, 27. Cason v. Murray, 36. Cassidy v. Carr, 238. Caton,445. Castigan v. Gould, 65. Castner's Appeal, 571. Castro V. Castro, 557. Caswell V. Wendell, 177. Cates V. Woodson, 26. Cathcart v. Bowman, 166. Catlett V. Catlett,541. Catlin V. Chritteudon, 415. Gilden,31. Hurlburt, 164, 165. Ware, 68, 181. Catsby's Case, 380. Caufman v. Sayre, 496. Cavender v. Smith, 260. Cecil V. Beaver, 109. 205, 212, 214. Cedar Rapids, etc. R. Co. v. Stewart, 284 Center v. P & M. Bank, 279, 471. Central Bank v. Copeland, 263. Central Trust. Co. v. Wabash, St. L. &P. R.,409. Chadwell v. Davis, 104. Chadwick v. Parker, 336, 382. Chaires v. Brady, 416. Chalker v. Chalker, 382. Challoner v. Davis, 386. Chamberlain v. Barnes, 472. Bell, 292 Ewer, 164. Lyell,181. Meeder,483. Thompson, Chambers v. Sallie,37. Ala. Iron Co., 8. Champion v. Brown, 9. Pulle,6. White, 5. Champlain Railroad v. Champlin v. Parish, ' Williams, 467. Champneyv. Coope, 491. Chandler v. Brown, 168. Cook, 512. Spear, 259. Temple, 213. Van Roeder, 36. Chapel V. Bull, 166, 176. Chapin v. First Universalist Soc, 31. Pease, 36. Chapman v. Armistead, 472. Bluck, 304,H05. Crooks, 68, 73. Harvey, H36. Hunt, 486. Kimball, 166. Kirby, 335, 336. McGrew, 371. Pingree, 124. Sims, 285. Summerfleld, 36. Tanner, 427. Chappcll V. Allen, 471. Charles V. Patch, 88. _ ,^ Charles River Bridge v. Warren Bridge, 99. 146, 407, 411. Valentine, 104. 230. TABLE OF CASES. XXXI Chase v. Abbott, 485. Brown, 472. Kittredge, 541, 542. McLollau, 501. Palmer, 21,67, 502. Peck, 415, 426, 427. Weston, 1G2. Woodburv, 481. Chatham v. I'.iiitlforcl, 2>»1. Chauiicey v. Arnold, 21. Chauvinv. Wagner. 173. Cheesebrough v. Millard, 481, 492. Cheetham v. Ilampson, :^45. Cheever v. Perley, 486, 497. Rutland, etc. R. R., 408. Cheney v. City Nat. Bank, 167. Stevens, 57. Watkius, 76, 78, 252. Cherry v. l?owen, 415. Herring', 224. Monro, 465, 466. Cheseman v. Exall, S6. Ghesley v. Chesley, 51.^. Frost, 20. Chessman v. Whittemore, 20. Chew V. Bank of Baltimore, 26. Chicago Dock Co. v. Kinzie, 182. Chick V. Rollins, 4S6, 497. Willets, 409, 497. Child V. Sampson, 312. Ohilders v. Deane, 449. Children's Aid Society v. Loveridge, 542. Childs V. Clark, 277. Dobbins, 25. Chiles V. Gouley's Heirs, 26, 60. Chlniqua v. Catholic Bishop of Chi- cago, 257. Chipman v. Emeric, 361. Chittenden v. Baruej-, 479. Ger. Am. Bank, 31. Choate v. Burnham, 118. Chouteau v. Thompson, 443. Jones, 271. Chouquette v. Barada, 197. Chowner's Will, In re, 423. Chrisman v. Partee, 9. Hahn, 207. Keen, 27. Christian v. Newberry, 473. Badger, 574. Christy v. Bernhart, 8. Dana, 448, 503. Church V. Cole, 416. Gilman,211,214. Remington, 33. Churchhill v. Morse, 287. Wells, 37. Cicotte V. Gagnier, 472. Cilley V. Gilley, 542. Cincinnati R. Co. v. Iliff, 208, 221. City of Alton v. 111. Transportation Co., 100, 108. City of St. Louis v. Bissall, 176. City Bank v. McClellan, 204. Claliin v. Mess, 37. Claiborne v. Holmes, 272. Glamorgan v. Hornsby, 108. Glampet v. Bells, 4. Clap V. .^rcNeil, 17.S. Clark V. Abbott, 407. Akers, 65, 204. Allen, 21. Babcuck, 344, 353. Bakiir, 73, 448. Beach, 407. Clark, 8, 27, 33. Conroe, 170. Goolidge, 358. Courtney, 246. Eborn, 549. Clark V. FInlon, 415, 410. Flint, 472. Graham, 230. Harvey, 21*7. Hornthal, 154. Iluut, 427. Lyon, 414.- McGelh m, 32. Morris, 280. Mosely, 571. N. Y. Life Ins. Co., 5, Potter, 477. Powers, s8. Redman, 182. Rey burn, 601, 502. Scammon, 106, 107. Smith, .549, 571. Swift, 164, 160. Troy, 76, 251. Clarke v.'Cunimingsi, 382. MeAnulty, 170. Monroe, is2. Ransom, 548. Clarkson v. Creelj', 511. Clason V. Bailej', 6, 7. Clawson v. Munson, 443. Clay v. Wren, 453. Claycomb v. Munger, 162, 168, 170. Clayton v. Brown, 37. Merrett. 242. Rose, 260. Cleavenger v. Beath, 444. Clement v. Baush, 31. Bennett, 414. Clements v. Ewing, ^7. Landriim, 79. Cleveland v. Choate. lOs. Boerum, 154. Martin, 415. Southi-ril, 465. Gleves v. Willoughby, 357. Clifford v. Atl. Cuttun Mills, 353. Parker, 19. Cllft V. White, 383. Clinan v. Cooke, 8. diner V. Wallace, 108. Clingan v. Mitcheltree, 5.50. Clinton v. Westbrouk, 411. Clopton V. Bolton, 174. Cloud V. Greasley, 3. Glough V. Glougli, 21. Clove V. Graham, 173. Clute V. Robinson, 472. Coal Co. V. Pasco, 260. Cobb Estate, 559. Coburn v. Goodall, 348. Herrington, 260. Litchfield, 176. Cocheco Mfg. Co. v. Whittier, w. Cochran v. (Juild, 167. Cocke v. Bailev, 5. Blogau,309. Cockrell v. Proctor, 165, 173, 175. Gockrill v. Armstrong, 146. Cocksou V. Cock, 34n. Coddington v. Dunham, 344. Codman v. Hall, 314. Codogan v. Kennelt, .36. Coffey v. Hunt, 407, 453. Coflln v. Loring, 445. Ray, 288. Coffman v. Huck, 177. scoville, 166. Cogan V. Cogan, 128. Cogdell V. Cogdell, 553. Cohen v. Dupont, .'^57. Cohoes Company v. Goss, 511. Coit V. Braunsdorf, 376. Coker v. Pearsale, 407. Pearsa'l, 377. XXXll TABLE or CASES. Colbern v. Robinson, H6. Colburnv. Morrill, 3SVI Colby V. Keiini;*toii, -M), (Sb4. McOmbcr. 'l- 0. Osgood, 1V2. Colcord V. AlexauUei , 4. ■ Cole V. Cole, 26. Edgerly, 4(0. Hills, r.t. Long, 190. McKey, 353. Mortitt, 511. Patterson, 339. rennoyer, 25. Persons, 59. Potts, 8. Eayniond, 169. Savage, 465. The (joluuibus, etc., 4/o. Coleman v. Barklew. 2m. llaiglit, .S5.=i. Lyman, 164. Mabeily, 3S7. Van Rensselaer, iio. Coles V. Soulsby, 79. Trecotbick, 7. Wooding, 101. Collamer v. Kelley, 369. Langdon, 485. Collier's Will, 155. Collier V. Gamble, Ibo, n». Collins V. Boyd, '261. Hasbrouck, .^69. Hoxie, 576. haratopsky, 357. Lavelle, 83. Marcy. 12-Z. Prentice, 93. Kiggs, 479. Torrv, 315, 486. Tillon,416. Colman v. Duke of St. Albans, 407. Packard, 453. Colomer v. Morgan, 271. Colquhoun v. Atkmson, 65. Colt V. Colt, 577. Colton V. Seavy, 218. Columbet v. Pacheco, 102. Columbia Ins. Co. v. Lawrence, 452. Columbian Kuildlng Association v. Crump, 483. Colwell V. Woods, 414. Warner, 4/8. Comer v. Baldwin, 206, 207. Comerford v. Cobb, 195. Comings V. Little, 176. Commercial Bank v. Norton, 232. Commonwealth V. Hanlon, 8. Jackson, 20i, 214. McClanachan, 163. liodes, 271. Roxbury, 91. Williams, 33. Comstock V. Comstock, 16.5. Hadlyme Society, 542. Smith, 169, 171. Concord Bank v. Bellls, 27. Condlt V. Baldwin, 449. Conger v. Duryea, 382. Congleton v. I'attison, 350. Conklinv. Hinds, 271. Conlon V. Grace, 15. 190, 200, 20b. Conn V. Manlfee, 271. Connecticut v. IJradish, 288. Jackson, 449. Conn. Mut. Life Ins. Co. v. Talbot, 471 Connelly v. Skelly, 221. Conner v. McMnrray. JSl. Connery v. Brooke Connor V. Kddy, 448. McMuiray,183. Conover V. Wairen, 427. Conrad v. Druid's Grand Grove, 1ter, 471, 472. Powel, 458. Crofut V. Wood, 74. Cromelin v. Thiess, 361. 370. Cromer v. Pinckney, 575. Cromie v. Hoover, 362. Cromwell v. Tate, ISO, 195. Winchester, 85. Crooker v. Holmes, 497. Jewell, 486. Crooks V. Crooks, 205, 211. Crosby v. Chase, 491. Harlow, 407. Loop, 370. Leavitt,600. Wendell, 570. Cross V. Carson, 124. Everts, is;^. Robinson, 407, 411, 448, 483. Crouch v. Fowle, 173. Crouse v. Holeman, 26. Crow V. Beardsley, 36. Vance, 471, 472. Crowe V. Peters, 29. Crowell V. Curler, 466. Gleason, 28. Crowley v. Wallace, 210. Crosall V. Shererd, 58. Crumbly v. Barden, 491. Cruger v. McLaury, 331, .339. Cruikshank v. DuIHn, 423. Crump V. Morrill, 357. Crusoe v. lUigby, 369. Crutchfleld v. Donathan, 4, 6. Cryatie v. Phyfu, 570. Cubberly v. Cubbt-rly, 5. Cullum V. Erwln, 471. Culpepper Society v. UIggcs.tO. Culver V. Bigelow, 449. Cumberland Coal & Iron Oo. v. I'urlsh 472. Cummings v. Cassily, 31. Dearborn, 111. Dennett, 4. Holt, 167. Powell, 25. Cunningham, In re, 548. Curtis, 101. Freeborn, 77. Knight, 182. Morrell, 174. Pattee, 3.54. Robertson, 102. Curlin v. Hendricks, 9. Currie v. Donald, 61. Currier v. Gale, 483. Curtis v. Deering, 170. Mundy, 281. Root, 289. Valiton, 36. Curytav. Berry, 289. Cushing v. Hurd, 272, 288, 370, Cushman v. Henry, 27. Stone, 416, 510, 512. Cushwa V. Cushwa, 36. Cutler v. Calllson, 102. Dickinson, 414, 415. Haven, 470, 490. James 385. Tufts, lis. .Cutsinger v. Ballard, 8. Cutter v. Butler, 525. Griswoid,37. Cutts V. York Co., 304, 213. D. Dadmun v. Lamson, 470. Dagget v. Rankin, 425. Daggett V. Daggett, 223, 226. Willey, 101. Dail V. Moore, 259. Daily v. Grimes, 305. Dailey v. Litchlield, 9. Dakin v. Williams, 340. Dale V. Arnold, 273. Harrison, 36. Lincoln, 32. Shiverly, 1 4, 175. Thurlow, 249. Dalton V. Bowker, 177. Dame v. Wingate, 24. Dana v. Combs, -25. Farriugton, 511, 512, 613. Danbury v Robmson, 472. Daniels v. Bailey, 3. Danzey v. Smith, 36. Danziger v. Boyd, Kil. Darby v. Hayford, 26. Darling V. Chapman, 483. Darst V. Bates, 65, 204. Gale, 256. Murphy, 416. Dartmouth College v. Clough, 313. Daub V. Englebache, 466. Daubenspeck v. Phitt, 417. Davar v. Cardwell, 260. Davey v. Durrant, 511. Turner, 182. David V. Burchard, 36. Ryan, 362. Rickabaugh, 271. Davie v. McDauiel, 2e7. (0 XXXIV TABLE OF CASES. Davis V. Agnew, '260.^ Andrews, '2 1. Baitliolomew, ISl, la-:. l}oglu,2riU. lirandou, 193. lire water, 416. Burton, 31, 1%. Clay, 415. Culver, '26, 29 Demiuing, 41.5, 416, 417. Dresbuck, 477. Fox, 2S. Gerber, 3. Hamilton, 42d. Holmes, 50'2. Judge, 102. Luster, 28. Morris, 369. Moss, 3S2. Ownsby,274,287,2S9. Rogers, 504. Shields, G, 1.5, 16, 540. Smith, 177. Speed, 56. Thomas, 417. Davison v. Stanley, 387. Dawkins v. Patterson 516. Dawson v. Burues, 18.s. Dawson, 212, 520. Helmes, 25. McFaddin, 8. Smith, 549. Day, Exjmrte, 54(^ Day V. Adams, 170, 20U. Watson, 357. Davton v. Newman, 205. Deakins V. Holli^,.^!'. Dean v. Dean, 542. Mason, o. Walker, 466. Dearborn v. Taylor, 471. De Arguelle v. Bours, 21. Dearmond v. Dearmond, 222. De Camp v. Crane, 41o. Decatur v. Walker, -iiA. Decker, Ex parte, 21. Deery v. Gray, 88. DeForest v. Byrne, 360. DeFrancev. DeFrance, 416. Dehority v. Wright, 166. Deininger v. McConnel, 274. Delav. Stanwood, 48a Delacey v. McKeen, 2(i. Delafleld v. Brady, 260. Parish, o49. Delahay v. McConnel, 415. Delancey v. Ganong, .^88. Delane v. Moore, 273. Delaney v. Sullivan, 526. Delano v. Bennett, 4a. Wilde, 4U7. DeLcon v. Higuera, 429 ■ v'ille V. Wann, 876 Demainv Demarest v Willard, 347, 348, 370. Wynkoop, 477. Demesmey v. Gravelin, 226. Demeyer V. Legg, 104. Deming v. State. 443. Demmmg v. Bullett, 180. Comings, 485. Den V. Drew, 580. McMurtrie, 582. huitcher, 580. Dening V. l',illett,195. Dennett v. Dennett, 26. Dennis V. Wilson, 119. Denster v. McCamus, 492. Denton v. Perry, 208, 212. Deordorffv. Forman,211. DePeyster v. Michael, 361. Deputy V. Staplelord, 2s. Dermott v. Wallach, 362. Derrick v. Kennedy, 2j). Derry Bank v. Webster 208, 212. Desvergers v. WilUs, 167. gS^ I: I mS CO. V. Aspinwall, 487. Deu V. Dimpn, 470. Hanks, 56, -7, <8. Helmes, 112. Johnson, 364. Lamshee, 312. Kichman, 287. DeVaux V. Fosbender, 235. Devechaud v. Berrey, 3d. Devin v. Himer, 21. Devinney V. V.^p^o\&s 245, 264. Devore v. Sunderland 164, 16^. Dewey v. Williams, 124. DeWitt V. Moulton, 2o2, 2-1. Pierson, 35 1. DeWolf V. Johnson, 465. Dexter v. Arnold, 4So. Harris, 2-6 Manley, 173. Shepard, 512, 513, 514. Dey V. Dunham, 281. Dice V. Irwin, 36.^ Dick V. Mowry, 4a. Dickenson v.Di^c^^--o,^f- Dickerson v. I>^y}^' "f,*^^- Dickey V. Malechi, 549. Powell, 503 Vann,5.58. Western, 165. Dickie V. Cartel', 642. Dickinson v. Hoomes 162, 168. McLane, 183. Dickson v. Desire, 164^175. Dickson, o40. Dietrich v. Koch, 36. Diez's Will, 541. Digges'Case,15/. Dill V. Sattertield, 4a8, 510. Dillon V. Brown, 314. Dilworth V. KK-e, 560. Dimmick v. Lockwood, 1-6, 1.7. Dimond v. Enoch, 414. Dingman v. Kelly, 3-'. Dinsmore V. Wiuegar, 4. Diver v. Diver, 33. Dixon V. Buell,3a. NiccoUs, 3(0. Rice, 9. Saville, 40-. Dixv. Atkins, 304. D'Meza V. Generes, 446. Dobbs V. Norcross, 9. Dobell V. Hutchinson, 4. Dobson V. Land, 4o;-. Racey, ^jM- Dodd V. Acklom, 387^. Adams, 3-. Dodge V. Brewer, 484. Dodge, 20. HoUinshead, 263. Doe V. Allen, 360. Bancks, .^82. Beniamiu, 304. ^ Bliss, 340, 382. Catamore, 19. Cavendish, 152. Cross, .520. Dey, 324. Heirst, 20. Hogg, 361. Horn, 76. jackman, 575. Knight, 213. TABLE OF CASES. XXXV Doe T. Lancashire, 551. Lock, lis. McLoskey, 407. Passingham, 137. Peck, 848. Pearson, 125. Phillips, 382. Keed, 4'.i, 260, 285, Reynolds, 3S8. Rice, 305. Roe, 542. Seatou, 850. Shewln, 359. Smith, 10. Stevens, 337. Tupper, 31. Vallejo, 449. ^ Warren, 449. Doherty v. Hill, 5, 7. Dolde V. Vodicka, los. Dolluian V. Harris, 183. Dolph V. White, 357. Donelson v. Pasey, 80. Donlin v. Bradley, 491. Donnell v. Thompson, 164. Donohue v. Mills, 260. Dooley v. Wolcott, 280. Watson, 9. Doolittle V. Lewis, 458, 508. Dooper V. Noelke, 79. Dorkray v. Noble, 470, 484. Borland v. Dorland, 151. Dorr V. Peters, 465. Dorrance v. Jones, 370. Dorsey v. Smithson, 36. Dos Santos v. Hollinshead, 887 Dostal V. McGaddon, 362. Doton V. Russell, 4S3. Doty V. IJurdick, 376, 338. Doubleday V. Kress, 478. Dougherty v. McColgan, 417. Randall, 471. Douglas V. Bank, 69. Fulda, 388. Scott, 73. Douglass V. Cross, 464. ^ Wells, 466. Doupe V. Genin, 344, 358. Douthittv. Stinson,69. Dow V. Jewell, 19, 27. Lewis, 84. ^ Moor, 496, Dowerv. Seeds, 549. ^ Smith, 165. Downer V. Button, 471. Miller, 493. Smith, 59. ^ Wilson, 479 Downie's Will, 542. Downing v. .Marshall, 154. Doyle v.Coburn, 183. Howard, 511. Lord, 827. Teas, 281. ^ . White, 444, Dozier V. Barnett, 271 Drake v. Root, 188. Ramsey, 25, 310. Dranev. Gunter, 508. Draper y. Bryson, 287. ,, Stouvenal,312. Dreutzer v. Baker, 195. Drew V. Rust, 487. Swift, 101. ,. . , Wakefield, 575. Driesbach v. Serfass, 520. Drinan v. Nichols, 511. Dnseoll V. Green, 98. Dnver v. Maxwell, 353. Drown T. Smith, 56. Drum V. Painter, 36. Drury v. Foster, 21. Tremont, etc., Co., 79. ^ loung, 6. Drye v. Cook, 256. Dublin V. Chadbourn, COO. Duboae v. Voung,274, 289. Ducia V. Ford, 8. Ducland v. Rosseau, 409. Dudley V. Bergen, 493. Duer V. James, 205. puffv. Hopkins, 9. Duffle V. Corridon, 541, 54'-' Dugan V. Corn, 27. Duke V. Bahue, 427. Codrington, 466. Duke, ,88. Dukes V. Spangler, 205. Dulaney v. Green, 30. pumpor's Case, 340. Duncan v. Beard, 559. Duncan, 261, ,554. Drury, 473. Hodges, 18, 21. Helm, 449. Pope, 224. ^ , Syh'ester, 81. Duncan's Appeal, 37. Dandas v. Bowler, 469 Dunham v. Averill, .571, 574. Gould, 449. ^ , ^ Minard, 486. Dunker v. Chedic, 188. Dunklee v. Wilton R. R. Co., 91. 93 Dunlap V. Bullard, 869. Daugherty, 257. ^ Thomas. 182. Dunn V. Bagly,344. Games, 70. Rayley, 4: lo. Durinel v. Dwlnel V. Seymour, 472. pupout V. Wertheuian, 287. puppa V. Mayo, ,^.86, 882. purbm V. Garrard, 177. puryea v. Duryea, 551. Dustm V. Steele, 182 pussaume v. Burnett, 252. 256. Dutton V. Gerrich, 844. Ives, 472. Stuart, 182. Warschauer, 409. Bliss, 204. -^--. . . Perley, 39, 469, 470, 471. Dwiggms V. Shaw, 174. P'Wolf V. Hayden,178. Dje V. Mann, 183. Dyer, In re, 540. Britton, 170. Sanford, 119. Shurtleff, 5U, 512, 514. Toothaker, 483. Dyson v. Bradsliaw, 226. E. Eacho V. Cosby, 448. Eagle Fire Ins. Co. v. Pell. 443. Earle V. Earle, 222. ^"•»»"'- Fiske, 286. Hal8, 388. Earnest v. Hoskius, 472. Early v. Owens, 37. Eastman v. Thayer 480 Eason v. Eason,">-. Kn^tnn°l" l?^'' ''7c.,Church, v.Frolslile. 33. taston y. Mitchell, 323. Jaques, 870, 409. Lyman, 176. Perry, 30, 812. Suiitli, 5, 88. XXXVl TABLE OF CASES. Simonds, 478, 480. Trowbridge, 2U4. Whitaker, ai2. Ebert v. Wood, 102. Eby V. Eby, 575. Echols V, Cheney, 246. Ecke V. Fetzer, MS, 362. Eckman v. Eckniaii, 13, 55, 60, 208. Edgerv. Edger, 526. Edgerton v. Jones, 263. Page, 357. Thomas, 233. Young, 470, 473. Edgington v. Hefner, 492, Edmondson v. Welsh, 514. Edward's Appeal, 551. Edwards v. Brinker, 271, 279. Bibbe, 570. Davis, 312. Haverstick, 36. N. Y. & H. K. Ry. Co., 353. Poys, 24. Schoeneman, 27. Trumbull, 426. White County, 102. Ege V. Ege, 331. Eggleston v. Bradford, 87. Ehle V. Brown, 280. Eisaman v. Gallagher, 478. Edler V. Hasche, 464. Ela V. Edwards, 542. Elder V. Lantz, 571. Eldred v. Leahy, 357. Eliott V. Carter, 93, 671. Barrett, 3. Elkins V. Edwards, 497. Ellet V. Richardson, 27. Ellinger y. Crowe, 76. Elliott V. Aiken, 344, 353. Carter, 582. Patton, 478. Socki.tt, 464. Sleeper, 68. Wood, 458, 459, 501. Ellis V. Alford, 25, 27. Ellis V. Essex, 575. Johnson, 466. Lindley, 493. Page, 535. Welch, 352. Ellison V. Daniels, 407, 471. Wilson, 279. Ellsworth V. Central R. E. Co., 65, 204. Elmendorf v. Lockwood, 182. Elmore v. Marks, 208, 212. Elsey V. Metcalf, 65, 211, 212. Elwell V. Shaw, 246, 253. Ely v. Adam, 5. Ely, 19,500, 571. Hair, 31. Scofield, 471. Stannard, 59. Wilcox, 252, 271, 278, 280. Emanuel v. Hunt, 471. Embury v. Connor, 278. Emerson v. Atwater, 416, Bemis, 37. Proprietors, 168. Providence Hat Manf. Co., 232. Emerson v. Wiley, 173. Emery v. Chase, 55. Emmert v. Hays, 571. Emmons v. Murray, 280, 281. Endel v. Walls, 443. Endsley v. Strock, 71. English V. Key, 377. Roche, 438. Russell, 427. Young, 50. Ennis v. Harmony Fire Ins. Co., 452. Pentz, 575. Enston v. Friday, 443. Episcopal City Mission v. Appleton, 126, 128. Eppes V. Randolph, 36. Eppich V. Clifford, 4. Epps V. Dean, 550. Erickson v. Rafferty, 411. Erskine v. Davis, 67, 70. Townsend, 395, 407,470, 483. Eslava v. Lepretre, 182. Estabrook v. Hateroth, 388. Moulton, 445. Smith, 167, 170. Estep V. Estep, 344. Morris, 542. Estevez v. Purdy, 449. Esty V. Baker, 373. Esmay v. Gorton, 6. Eten V. Lyster, 313, 375. Evans v. Arnold, 559. Bidwell, 388. Evans, 548. Gibbs, 225. Evans v. Hardeman, 2. Horan, 26, 28. Huffman, 486. Kimball, 473. Lee, 458. McGlasson, 287. Smith, 520. Templeton, 290. AVells, 7. Everston v. Kan. Cent. Bank, 487. Everts v. Agnes, 226. Everett v. Everett, 205. Diley, 8. Everhart v. Everhart, 541. Everman v. Robb, 438. Ewer V. Hobbs, 411. Ewing V. Burnett, 93. Ewing's Appeal, Excelsior F. Ins. Co. v. Royal Ins. Co. of Liverpool, 452. Exchange Bank v. Rice, 331. Decker, 21. Kerwin, 21. Reynal, 438. Sultap, 7. Exum v. Canty, 55, 60, 76, 73. Eyre v. Storer, 532. Eyster v. Hatheway,263. Ezzel V. AVatson, 514. Fagan v. Cadmus, 167. Fahey v. Marsh, 102. Fain v. Smith, 205. Fair v. Stevenot, 280, 281. "^ Fairbanks v. Metcalf, 204, 224, 227. Faley v. Bitter, 37. Falkner v. The Equitable Reversionary Soc.,513. Fall v. Hazelring, 8. Roper, 260. Fallass v. Pierce, 284, 288. Falley v. Giles, 354. Fannmg v. Kerr, 508. Farley V. Carpenter, 36. Thompson, 377. Parker, 26. Farmer's Bank v. Douglass, 472.1 Glenn, 175. Haight, 194. Warner, 36. Farmers' etc. Co. v. Edwards, 4S3. Farmers' Insurance Co. v. Harrah, 33. Farmers' Loan Co. v. McKinuey, 33, 59. TABLE OF CASES. XXXV )1 Fanners' Loan & Trust Co. v. Hughes, I 458. Farnell v. Lowther, G. Farnum v. Buffuni, 261. Burnett, 448. Peterson, 24. Farquharson v. Eichelberger, 111. Farrar v. BrlOges, 205. StackpoIe,94. Farrell v. Parller, 478, 502. Farris v. Gilbert, 87. Fash V. Blake, 2S5. Fassett v. Smith, 493. Faure v. Winans, 443. Faulknar v. Broekenljrough, 411. Fauntleroj- v. Dunn, 50. Farwell v. Rogers, 380. Faxon v Folvey, 39. Fay V. Cheney, 407. Richardson, 207. Valentine, 477. Winchester, 238. FecJler v. Darrin,449. Feit V. Vanatta, 575. Feldman v. Gamble, 443. Felker v. Emerson, 233. Fellows V. Allen, 551. Dow. 472. Fellows, 222. Smith. 79. Felton V. Smith, 8. Fenner v. Tucker, 512. Fenno v. Sayre, 278, 288. Fenton v. Lord, 466. Fenwick v. Floyd. 83. Ferguson v. Bell, 25. Fergu.soD, 508. Kimball, 508 Kingsland, 253. Popp, 484. AVagner, 484. Watson, 56. Ferreira v. Depew, 236. Ferrier v. Buzick, 9. Ferris v. Hendrickson, 472. Ferri?, 445. Fetrow v. Merrtweather, 56. Fewell V. Kessler, 208. Fidler v. Lash, 585. Field V. Columbet, 59, 60, 106. Gooding, 515. Herrick. 352. Mills, 337, 361, 369. Stagg, 21. Wilson. 497. Fifty Associates v. Howland, 127, 336. Final v. Backus, 258. Finch V. Finch, 557. Fink V. Denny, 37. Finlay v. Spratt. 272. Finley v. Simpson, 61. Fipps" V. McGehee, 2G0. First Nat. Bank v. Ashmead, 416. Bell Mining Co., 512. Caldwell, 426. Elmore, 473. Gav, 245. Marlow, 443. Thomas, 497. Fish V. French, 472. Leser, 9. Fisher v. Banta, 536. Beckwith, 21. Field. 146. Hall, 205, 207. Kuhn, 8. Meister, 186, 260, 263, 443. Milmiue, 407, 445, 496. Otis, 471. Flak V. Brunette, 45L Flores, 74. Potter, 427. Stubbs, 33. Fiske V. Mcintosh, 312. Tolman, 464. Fissel's Aopeal,576. Fitch V. Boyer, 289. Johnson, 162. FitchburgManufacturingCo. V. Melvcu, 357, 407. Fitton V. Hamilton City, .S67. Fitts V. Hall, 25. Fitzgerald v. Barker, 466. Fitzhugh V. Barnard, 283. Crogham. 164, 165, 200. Smith, 425. Wilcox. 26. Fitzpatrlck v. Featherstone, 9. Fitzpatrick, 51£. Fitzsimons v. Baum, 449. Flagg V. Badger, 381. Dow, 387. Fames, 111. Flagg, 407. Mann. 414, 415, 417. Thurber, 465. Flanagan v. Young, 260. Flanders v. Lamphear, 443, 496. Fleckner v. Bank of the U. S., 449. Flege T. Garvey, 183. Fleming v. Carter, 8. Ervin, 252. Holt, 171. Fleschner v. Sumpter, 272. Fletcher v. Carpenter, 470. Chase, 479. Holmes, 401, 409. Home, 113. Mansur, 70. McFarland, 375. Peck, 36. State Bank, 167. Wilson, 309. Flinn v. Owen, 542. Powers, 25. Flint V. Shelton,414. Flood V. Progoff, 542. Florence S. M. Co. v. Zeigler, 36. Flower V. Elwood, 458, 491. Lance, 465. Flowers v. Wilkes, 289. Floyer v. Edwards, 449. Flynt V. Arnold, 288. Fogarty v. Finlay, 260. Sawyer, 261, 513. Foley V. Bitter, 36. Folk V. Varn, 83, 205, 212, 217. FoUett V. Heath, 444. Folly V. Vantuyl, 205. Folsom V. Lockwood, 491. Fonda v. Jones, 427. Sage, 20, 209, 214. Fontaine v. Boatman's Savings Inst., 65, 79, 204. Fonty V. Fontv, 77, 78. Foote V. Burnet, 166, 168. Burnett, 170, 176. Burret, 165. Sprague, 443, 449. Forbing v. Weber, 549. Force v. City of Elizabeth, 449. Dutcher, 236 Ford V. Ford, 542, 54.t. Gregory, 65, 2(.>4. Irwm, 417. James, 206, 222. Smith, 427. Teal, 263. Fords V. Vance, 287. XXXVlll TABLE OF CASES. Foreman v. Hosier, 27. Forman's Will, 650. Forman v. Forman, 449. Forrester v. Flowers, 8. Forsyth v. Day, 245. Fort V. Burch, 471. James, 221. Fortier v. Darst, 510. Fortune v. Buck, 600. Watkin.s, 9. Fosdieb v. Barr, 471. Fosselmain v. Elder, 543. Foss V. Crisp, 188. Foster v. Beals, 470. Bearsley, 209. Hall, 89. Leeper, 4. McGraw, 5. Mansfield, 211, 225. Paine, 485. Peyser, 344. Thompson, 177. Foulke V. Stockdale, 102. Fowle V. Merrill, 512. Fowler v. Bott. 3oii. Fay, 464. Payne, 857. Poling, 168. Shearer, 27, 181,182,253. Fowler v. Trebein, .82. Fowley v. Palver, 480. Palmer, 452. Fox V. Hall, 285. Nathans, 323, 380. Foxcraf t v. Lester, 8. Foy V. Foy, 146. France's Estate, 571. Francis v. Barry, 4. Porter, 496. Wells, 427. Franciscus v. Keigert, 23. Frank v. Eltringtuam, 4. Maguire, 346, 375. Peters, 36. Franklin v. Becker, 249. Greene, 513. Osgood, 2,84, 458. Palmer, 370. Talmadge, 70. Fransen's Case, 551. Frazer v. Clifford, 27. Davie, 206. Robinson, 3S8. Frear v. Drinker, 486. Freed v. Brown, 26. Freeland v. Freeland, 39. Freeman v. Auld, 465, 466. Boldwin, 414. Burnham, 37. Freeman, 8. Foster, 167, 171. Paul, 473. Pope, 37. Sedgwick, 36. Staata, Bu. Wilson, 415, 416, 417. French v. Baron, 480. Burner, 415. Burns, 415. Peters, 1^2. Sturdivant, 417. The Mayor, 362. Turner, 472. Frey v. Clifford, 284, 287. Frierson v. Blanton, 476. Frieze v. Chapin, 509. Frink v. Bellis, 166. Pond, 201, 542. Frissel v. Ptozier, 32. Frissel's Appeal, 276. Fritz V. Pusey, 167. Frinvel v. Zuber, 487. Frost V. Beekman, 227, 289. Deering, 181, 190, 245. Methodist, etc. Soc, 59. Raymond, 84. Shaw, 466. Spalding, 102. Frith, Re, 542. Frothingham v. March, 512. Fry V. Piatt, 4. Sheehee, 282, 497. Frye v. Bank of Illinois, 443. Fryer v. Rockefeller, 249, 260. Fuller V. Bennett, 282. Carr, 87. Eddy, 408. Fuller, 29. Hollis, 224. Pratt, 417. Sweet, 388. Yates, 535. Fulton V. Robinson, 4. Fund Commissioners v. Glass, 261. Funk V. Creswell, 166, 170, 171, 176. Kincaid, 377. Voneida, 166, 173. Furbush v. Goodwin, 407, 411, 4T1, 483. Furguson v. Miller, 415. Furnas v. Durgin, 21, 170,466. Furrow v. Athey, 32. Futrill V. Futrill, 29. G. Gadberry v. Sheppard, 125. Gage V. Bates, .382. Brewster, 479. Gage, 205. 206, 211,230. Gaines v. Allen, 458, 537. Gains v. Gains, 549. Gaither v. Gibson, 212. Galbreath v. Cook, 36. Gale V. Coburn, 56, 76, 78. Morris, 425. Galland v. Jackman, 283. Gallaghar v. Mass, 427. Gallagher v. Bennett, 388. Connell, 388. Gallagher, 8. Galpin v. Abbott, 252, 271. Gait V. Dibrell, 271. Jackson, 417. Galway v. Malchow, 284. Gamber v. Gamber, 33. Gamble v. Johnson, 36, 37. Games v. Stiles, 70. Gammon v. Freeman, 182. Hodges, 289. Gannett v. Albree, 840. Gannunt v. Gregg, 502. Gano V. Vanderveer, 344. Gans V. Aldridge, 100. Ganson v. Madigan, 5. Gardiner v. Corson, 160, 174. Gardner v. Aator, 388. Boothe, 37. Emerson, 448. Gardner, 245, 366. Heyer, 575. James, 485. Keteltas, 344, 352. Randall, 8. Garfield v. Williams, 164. Garland v. Watson, 514. Garner v. Byard, 375. Hannah, 336. Heyer, 574. Garnett v. Garnett, 67. Stockton, 260, 265. Garnhart v. Fiuney, 362 Garnsey y. Uogers, 466. Garrard v. Davis ■>'>'> Garrett v. Packett,"i7i Garrison v. Ilaydon, 271. „ Sanford, im. Garrocliv. Sherman 470 Garth V. Fort, 2G0. Gartrell v. Stafford, 6, 9. Garvin v. WilJiams 659 Garwood v. Garwood, 287 Gaston v. Weir, 15, 32, 68. Gates v. CaldweJl, 173. Hester, 183. Salmon, 31. Gatewood v. House, 87 Gault V. Hall, 55, 78. McGrath, 443. Gaus V. Thieme, 490 Gay V. Hamilton, 414 Ihm,3l2. Gazley v. Price, 167 Gazzolo V. Chambers, 344 Gear v. Barnum, 104 rt^7 X; I^'ansas C^ty, 290. Gee V. Moore, 171. Geiger v. Bolles, 235. Gelston V. Shields, 571 Gennessee River Bank v. Mead 37 Center v. Mocrison, 200 ' ^• George v. Arthur, 512. ' Williamson, 36. „^ _ Hood, 278,492. German Amer. BanJj v. White oq,, Gerzebek v. Lord, 353. Gest V. Flock, 254 Getzler v. Saroni, 36. Geyer v. Girard, 448. Ghegan v. Young, 375. Gibbert V. Peteler, 74, 277 Gibbons v. Gentrj', 256. Gibbs V. Chishofnit ii^ Penny, 416. Swift, 249. 251. ^.. Thayer, 39. Gibson V. Barber. 514. Bennett, 36. Chouteau, 173. Crehore, 383, 407, 478, 479, 480, Eller, 417. Gibson, 174. Jones, 460, oil. MeCormiek, 492 Norway Bank, 256. Seymour, 444. Shearer, 24. ^. , ,. Warden, 31. Giddings V. Sears, 39. Giflord V. Cornigan -^i') Ford, 36. '" "■ Gilbert V. ILfL%'^^,7ifooiety, 160, Bulkley, 165. Holmes, 443. Jess, 281, 282. r iiK-,-* ^- ^ • I"s- Co., 224. Giles V. Austin, 382. Baremore, 486, 497. Dugro, 167. ^.,, ^}^ arren, 549. Gill V. Clarke, 425. Fountleroy, 60, 274, 289. Mlddleton, 344. Plnuoy,444. X -V \ i .\ Gillespie v. Bailey, 25. 27. Brooks, 194.' Reed, 271. Sawyer, s8. r'ni,„ ^ Schuman, 671. Gilliam v. Chancelor, 571 r-iii- ^ Moore, 182. Gillis V. Bailey, 232 Giloon V. Kiley, 353. Gilman v. Brown, 427. Haven, 170. 111. *Miss. TeJ. Co., 500. ,,., Moody, 444. Gilson V. Giison, 425. Gimell V. Adams, 2.36 Girard v. Mayor, 5.34 Givan v. Doe, 269, 470, 471 G ass V. Ellison, 407. Glasscock V. Glasscock. 180. /-M , Smither, 649. G assock V. Glassock, 195 Gleason V. Burke, 417. r.. Smith, 170. Glenn v. Clanbj', .347 ni- I, Thistle, 170. Glidden v. Hunt, 472. ^Jover v. Payne. 417. Goddard v. Coe, 442. ^o Day, 211. Eastern K. u. Co., 104. Mansheld, .520. Xewman, 36!t, 471 Steinburg, 36. Gouverneur v. Lynch i^o Gowerv. Howe, 471. f- ^ ^Vinchester, 497. Grady v. Robinson. 31 Graeme v. Cullen, 458. Graff v. Mlddleton, 59, 285. xl TABLE OF CASES. Graggv. Wagner, 167. CiiaUam v. Adams, 528. Anderson, 237. King, 513. Long, 146. Linden, 484. Kewman, 470, 4.1. O'Fallon, 657. Tlitiis 8. Grand Gulf Banking Co v. Bryan, 69. Grandin v. Hernandez, 193. Graunis v. Clark, Sib. Granniss v. Irwm, 2al. Grant v. White, 309. Gratz V. Beates, 103. u^-, Phillips, 414. Graves v. Berdan, 357, 389. Dudley, 206. Graves, 252, 271. Howard, 582. Porter, 348. Tucker, 224, 22o. Ward, 278. Gray IV. Clark, 98. Convillon, 102. Lake, 76. Lynch, 153. Ulrich, 249. Graydon v. ^raydon, 5/1. Grayson V. Mayo, 491. Grazebrook v. aicCreedie, 314. Greason v. Keteltas, 381. S^vK^^St^cr(5S:'I^^Saas,164, Gree'n Bay, etc. Canal Co. v. Hewett,59. Green v. Abraham, ^ob. Chelsea, 103. Clark, 73. Cross, 485, 511. Drinker, 265. Hague, 353. Irving, 170. James, 309. Jones, 8. Massie, 331. Miller, 234. Putnam, 181. Thomas, 78. Turner, 477. Yarnall, 213. Greene v. Tallman, 176. Warnick,4,o,4,2 Greenaway v. Adams, 361, 3fa9. Greenleaf v. Allen, 3j5. Eads, 287. Green's Appeal, 575. Greenup V. Sewell, 48. Greenwood y. Tyler, 11.3 Greer v. N. Y. Cent. R. K. Co., lUi. Gregg V. Hamilton, 8. Owens, 27. Gregory V.Clark, 512.^ Grellet v. Heilshorn, 473. Grest V. Hodges, 170. Grevev. Cortln,23b. Grice V. Scarborough, 167. Gridley v. I'.ingham, 36. Watson, 3i. Grier v. Rhyno, 9. Griesbaum v. Baum, 502. Griffin v. Cranston, 442. Cunningham, 9. Fairbrother, 164. Griflin, 426. Knisely, 304. M°aT?neCo.'ofChicago,513,5 Sheffield, 290. Griffith V. Cox, 36. Lovell, 46 (. Schwenderman, 20, 66, 6iv. Griggs V.Smith, 182. Grimes v. Harmon, Sjl. Kl:r.ball, 486. Grimke v. Grimke, 534^ Grimman v. Legge, 38.. Grimsly v. Riley. 180, 195. Griner v. Butler, WO. Grist V.Hodges, l.(. Griswold v. Johnson, 31. Smith, 280. Groesbeck v. Seeley, 556. Grofton v. Cummmgs, b. 1^?^!^ Jno;°" Atlfntic Fire Ins. Co. of Brooklyn, 452. Grouer.v. Smith, 19o. Grout V. Townsend, (9, 3us. Grover v. Flye, 483. Fox, 502. Thatcher, 473. Grundin v. Carter, 313. Guard V. Bradley, 208. Guekianv. Riley, 4i3. Guerrant v. Anderson, 279. Guest V. Beeson 29,208. Guild V. Richards, 124, 12(. Guinotte v. Chouteau, liO. Guionv. Knapp,492 Pickett, Voi. Gunn V. Brantley, 477, 49.. Gunter v. Gunter, i)4--. Williams, 31. ^^t^e^s'SSL^y: Lackmann, 372. Guy V. Sharpe, 5. Guynn v. McCauley, 8. Gwathnsy v. Casou, 4. Gwinn v. Rooker, 31. . 55. H. Hackney v. Williams, 261. Haddock v. Boston, etc. R. R. Haden v. Buddensick, 443^ Hadlock V. Hadlock, 206, 212. Hao'er v. Buck, 362. Hagerbuchv. Phillips, 2 ^^_^^^ gSry^nnli" works, 443. Haight v. Child, 8. ^ ., ^,,„,. m-, o rpjje (jity ot Keokuk, lOo. Haines v.Spanogle, 8. Thompson, 414, 416. Halt V. Houle, 183. Hale V.Christy, 2/. Joslin, 208, 213. Rider, 500. Russ, 21. Wilkinson, 9. Halford v. Hatch, 313. Hall V. Ashby. 49,69. Bliss, 514, 515. Brady, 170, 1.5,550. Callahan, 36. Chaffee, 171. Congdon, 146. Cushman, 511. Davis, 5, 88. Dean, 167. Dench, 550. Eaton, 101. FuUerton, 183. Gittlngs, 260. Hall, 502, 560. Lance, 407. Mayhew, 173. TABLE OF CASES. xli Hall V. McDuff, 426. Orvis, 73. Savage, 181. Stephens, 'iA. Towne,ol4. Tunnel, 408, 411. Hallenbeek v. Dewitt, 186. Hallesy v. Jackson, 477. Hallett V. r.eebe, 105. Hallett, 502. Wylie, 304, 326. Halley v. Troester, 26. Halligan V. Wade, .3.57. Hallocher v. Hallocher, 29, 78. Halloway v. Lacy, 160. Hallowell v. Hallowell, 541, Halls V. Thompson, 260. Halo V. Schick, 415. Halton V. Kemp, 19. Ham V. Goodrich, 8. Hambright v. Brockman, 512. Hamilton v. Blackwell, 79. Cutts,170. Doolittle, 59. Lubiikee, 458, 459, 510, 512. Nutt, 74, 277. Pitcher, 67, 256. Reef', 383. Russell, 273. Smith, 37. Wilson, 164. Wris:ht, 84, 173. Hamilton Hydrulic Co. v. C, H. & D. R. Co., 3. Hamlet v. Johnson, 577. Hamlin v. Paupoint Ml'g Co., 104. Hammell v. Hammell, 212. Hammerslough v. Cheatham, 208. Hampton v. Stevens, 256. Mourhead, 154. H. & St. Jo. R. Co. V. Green, 97. Hancock v. Amer. Life Ins. Co., 557. Beverly, 286. Harper, 416. Watson, 98, 438. Hand v. Hand, 260. Hands v. Slaney, 310. Handy v. Foley, 119. Han ham v. Sherman, 386, 387. Hankinson v. Borbour, 281. Hanley v. Morse, 281. Hanlo'ne v. Doherty, 416, 473. Hannah v. Carrington, 458. Henderson, 170. Swarner, 217. Hannan v. Oxley, 79. Hansen v. lUickner, 76. Harbison v. Lemon, 414. Hardy v. Akerly, 38S. Xelson, 177. Hardeman v. Burge, 9. Harden v. Darum, 32. Hardin v. Hyde, 465. Kirk, 257. Osborne, 257. Harding v. Handy, 26. Hargrave V. King, 337. Harkrader v. Leiby, 403, 407, 411. Harlan v. jMaglaughlin, 3'. Seatan, 2S6. Harlow v. Cowdrey, 137. Thomas, 167, 170, 175, 176. Harmon v. Harmon, 36 Smith, 585. Harmony Lodge v. White, 357, 375. Harnickell v. Urndorff, 458. Harpending v. Wylie, 263. Harper's Appeal, "415, 480. Harper v. Barsk, 252, 271. Ely, 411, 445, 480, 496. Harper v. Hampton, 24C. Perry, 7'J. Phelps, 146. Keno, 2M, 284. Tapluy,271. Harriman v. Gray, isi. Sutham, 34. Harrington v. Christie, 451. Gage, 204. Fish, 261. Former, 425. Slade,4'.'7. Stees, .542. Harrington v. Watson, 357. Harris v. Carmsly, 28. Carson," 297. Cook, 493. Coulbourne, 362. Elliott, 93. Hanks. 427. Hiscock, 387. Hull, 101. Jex, 465. 484. Kelly, .362. Mills, 497. Mulock, 484. Norton, 6."), 2<)4. Plre, 540. Rueker, 458. Tyson, 28. Vanderveer, 527, 559. Harris' Estate, 576. Harrison v. Elvin, 542. Jackson, 31. Oakman, 260. Phillips' Academy, 204, 212, 414. Simons,68, 201, 261. Tiermans, 21. Town, 9. Harriston v. Harriston, 549. Harrod v. Myers, 25. Harroldv. Simmonds, 2.74. Harshaw v. McKesson, 445, 406. Harsam v. Barrett, 416. Harsh v. Griftin, 183. Hart V. Farmers', etc. Bank, 281. Hart, 551. Rust, 221. AVindsor, 84, 344. Withers, 314. Hartford Fire Ins. Co. v. Wilcox, 242. Hartley's Appeal, 241. Hartley v. Frosh, 263. Harrison, 74, 465, 466. Tatham,472, 483. Hartman v. Kendall, 25. Hartness v. Thompson, 25, 310. Hartnett v. Wendell, 586. Hartshorn v. Dawson, 260. Day, 78. Ilartwell, v. Camman, 5. Harty v. Ladd, 260. Harvey v. Hobsou, 26. Hurlburt, 49 \ McGrew, 376. Harvey v. Armstrong, 554. Chouteau, 554. Harwell v. Harwell, 540. Haseltine v. Donahue, 180. Espv, 289. Haskell v. Bailev, 477. 497. Hastings v. Vaughn, 249, 251, 261. Wiswall, 449. Hatch V. Barr, 191. Bates, 78, 208, 212. Crawford, 31. Hatch.lS, 208, 211. Haskins, 275. Hatfield V. Reynolds, 483. Xlll TABLE OF CASES. Hathaway v. Payne, 225. Hatzel V. Barber, 154. Haughery v. Lee, 305. Hauks V. Phillips, I'JO. Haven v. Foster, 554. Hiniard,542. Wakefield, 304. Havens v. Osborne IS. Van Den iJurgh, 551. Hawes V. Humphrey, 54-.', 550. Hawesville v. Lander, 104. Hawk V. McCullough,84, 173. Hakes V. Dodge County, etc. Ins. Co 485. Pike, 212. Hawkins v. Burress, 260. Chapman, 85. Kemp, 151. Hawkinson v. Herman, 3. Hawley v. James, 535. Northampton, 571. Haworth v. Taylor, 274. Hawtry v. Butlin, 438. Hayden v. Wescott. 260. Hayes v. Skidmore, 3. Hayner v. Smith, 357, 3s9. Haynes v. Haynes, 541. 542. Seachrest, 31. Haynes v. Stevens, 44*. Young, 101, 167, 170. Haynie v. Kobertson, 417. Hays V.Hall, 425. Peck, 79. Haywood v. O'Brien, 377. Shaw,2e2. Headley v. Goundry, 492. Healdsling v. Bailboch, 205. Healey v. Worth, 271. Heard v. Baird, 45S. Heartley V. McAnulty,36. Heath v. Blake, IS. Hall,45S, 496, .510, 515. Nutter, 236. West, 4S7. Williams, 417. Heaton v. Prather, 2S1, 289. Hebert v. Doussan, 466. Hebron v. Center Harbor, 413. Hedge V. Drew, 208, 212. Hedman v. Anderson, 36. Hedrica v. Walker, 36. Heeter v. Eckstein, 382. Heffelfinger v. Shutz, is. Heffner v. Lewis, 362. Hegeman v. McArthur, 387. Heiern v. Mill, 74. Heim V. Vogel, 466. Heischfeldt v. George, 37. Heise V. Heise, 549. Heiss' Appeal, 527. Heister v. Former, 252. Helburn v. Mofford, 357. Helfenstine v. Garrard, 136. Hellans v. Abercrombie,39. Helfin V. Wilton, 8. Helman v. Cretban, 104. Hemphill v. Ross, 4(i7, 411. Hei.dershott v. Pinu, 497. Henderson v. P.allimore, 65. Barnwall, 7. Ford, 242. Henderson, 167, 575. Hunton, 76 McGregor, 26. Mavor, etc. of Baltimore "204. Palmer, 443. Pilgrim, 470, 471. Hendon v. White, 254. Hendricks v. Rasson, 212. Stark, 167. Hendrix v. Boggs, 195. Heney v. Heney, 211. Henley v. Hotaling, 425. Henning v. Fisher, 274. Withers, 177. Henrichsen v. Hodgen, 208. Henry v. Bell, 435. Colby, 3. Etowah County, 124. Flagg, 449. Fulierton, 37. Root, 310. Tupper, 443. Henry County v. Gates, 31. Henshaw v. Mullens, 104. Wells, 411. Hepburn v. Auld, 9. Herbert v. Berriet, 541. Kenton, 183. Herndon v. Kimball, 252, 271. Herrick v. Hopkins, 95. Malin,19,20. Herring V. Woodhull,471. Herrington v. Budd, 55i. Herron v. Herron,416. Hershey v. Deunis,483. Herzog v. Sawyer, 31. Hess V. Fox, 373. Hesseltine v. Leavey, 387. Hessing v. McCloskey, 36. Hester v. Young, 520. Hewitt V. Clark, 2o6, 281. Templeton, 181. Hewitt's Will, 542. Hexterv. Knox, 353. Heyder V. Excelsior Building As£OC.,493. Heyer V. Pruyn, 497. Heywood v. Hildreth, 210. Wingate, 444. Hibblewhite v. McMoriue, 21, 245. ' Hickman v. Perrin, 281. Hickox V. Lowe, 443. Hicks V. Binghaai, 492. Hicks V. Downing, .^69. Hidden v. Jordan, 480. Higbee v. Rice, 270. Higgins v. Senior, 7. Turner, 388. Higinbotham v. Stoddard, 101. Hiles V. Coult, 467. Hiles V. LaFlesh, 260. Hill V. Bacon, 167, 256, 257. Barclay, .354. Bowers, 576. Eldred, 426. Felton, 571. McNichol, 204, 206, 212. Meeker, 286. Mowry, 88. Murray, 279. Paul, 287. Robertson, 408. Samuel, 249. West, 491. Hillegas v. Hartley, 279. Hillhouse v. Dunning, 417. Hilliard v. Phillips, 4. Hills V. Barnes, 18. Loomis, 416. Hillyer v. Bennett, 25. Hilmert v. Christian, 171. Hinchliff v. Hinman, 206, 251. Hiuchman v. Emans, 473. Hind V. Poole, 458. Hinde v. Longworth, .37. Hinds v. Ballow, 182, 470. Hine v. Bobbins, 289. Hinman v. Booth, 227. TABLE OF CASES. \illl Hinsdale v. Humphrey, 61. Hinson v. Partee, 415. Hitchcock V. Harrington, 407. Hitchcock, 571. Merrick, iiS, 451, 470. Hoag V. Owen, 206. Rathbun, 476. Hobbs V. Wetherwax, 8. Hobson V. Kissani, 260. Itoles, 471. Hodgdon V. Shannon, 443. Hodgen V. Uuttery, 478. Hodges V. Thayer, 175. Hodgson v. Ambrose, 574. Hoes V. 15oyer, 36. Hoff V. Tobey, 104. Hoffman v. Anthony, 511, 512. Coster, 264. Harrington, 515. Mackall, 100, 424. Ryan, 415, 410. Stiger, 32, 33. Caruth, 25a Hogan V. Hogan, 27. Page, 67. Small, 550. Hoge V. Hollister, 181, 1S3. Hogg V. Odom, 67. Hoig V. Adrian College, 226. Hoit V. Hoit, 550. Russell, 513, Holbrook v. Chamberlln, 865. Finnej', ls2. Tirrell, 386. Holden v. Burnham, 37. Gilbert, 445. Stickney, 508. Holford V. Dunnett, 345. Hatch, 37-2. Hollenbeck v. Shoyer, 493. VunValkenburgh, 542. HoUiday v. Arthur, 415. Cromwell, 271. Marshall, 373. Hollingshead v. Sturgis, 547. Hollisv. Burgess, 4. Holloway v. Galloway, 541. Holman v. Bank of Norfolk, 492. Creagmiles, 167. Holmes y. Albee, 4. Blagg, 25. Braldwood, 36. Clark, 37. Grant, 417. Holmes, 3. McGinty, 471. Stout, 2S0. Turner Fall Co., 104. Holyoke v. Haskins, 600. Home Ins. Co. v. Davis, 33. Sherman, 389. Homer v. Homer, 146. Homestead Ass'u v. Enslow, 183. Honore v. Hutchings, 417. Hoodless V. Reid, 513. Hood V. Brown, '204. Powell. 1S3. Hood V. Mowre, 2S1. Hooker v. Pynchon, 9. Hooper V. Bailey, 417. Smith, 312. Wilson, 408. Hoover V. Kinsey Plow Co., 25. Hope V. Harm an, 213. Sawyer, 256. Hopkins V. Delaney, 260. Grimes, 582. Lee, 177. Mollinienx, 233. Organ, 371. Roberts, :>. Stephenson, 417. Hopklrk V. liandolph, 37. Hopson V. Commonwealth, 575. Horbach v. Hill, 36, 411, 417. Horman v. Uemlng, 444. Horn V. Keteltas, 41G. Ludlngton, S. Hornbeck v. Westbrook, 69, 118, 119, 33L Hornby v. Cramer, 512. Horner v. Zimmerman, 36. Ilorrlgan v. Wellmuth,451. Horsefall v, Mather, 345. Horsey v. Hough, 513. Horsley v. Garth, 271, 274, 275, 289. Horstman v. Gerker, 472. Horton v. N. Y. Cent. R. R. Co., 3.S3. Sledge, 55, 60, 136. Horwitz v. Davis, 370. Norris, 154. Hosmer v. Sargent, 513. Hosper v. Almstedt, 473. Hostetter v. Alexander, 472. Hotchkiss v. Barnes, 5. Houbie V. Volkening, 484. Hough V. Doyle, 445. House V. Burr, 354. Tennessee College, 449. Houston V. Carl. .33. Sneed, 102. Spruance, 126. Stanton, 213, 427. Hout V. Hout, 249. Houx V. Batteen, 102, 190. Hovey v. Blanch ard, 282. Chase, 26. Hill, 472. Hobson, 26, 311. How V. Vigures, 401. Howard v. American, etc.. Society, 571, 574. Ames, 514. Brower, 3. Ellis, 300. Gresham.472, 491. Harris, 47a. Hatch, 512. Hildreth, 486. 497. Patrick, 207, 211. Robinson, 411. Williams, 37. Howards v. Davis, 514. Howe V. Howe, 25, 29, 38, 213. Russell, 415. Woodruff, 487. Howell V. Edmonds, 36. Merrill, 107. Richards, l(i4, 344. Tyler, olti. Howland v. Coffin, 34S. Leach, 174. Hoy V. Allen, 287. Bramhall, 492. Hoyt V. Hovt, 471. Hunt, 8. Kimball. 12fi, Parks, 33. Swar, 27. Thompson's Executors, 469. Hubbard v. Allen, 79. Apthroji, 171. Jarrell, 513. Jasinski. 5i)',t. Norton, 1()7, 175. Turner, 470. Hubbell V. Sibley, 477, 512. Hubly V. Harris, 417. Huckins v. Straw, 407. Hudson V. Irwin, 108. Poindexter, ISO, 195. xliv TABLE OF CASES. Hulick Hull V. ,260. Huebsch V. Scheel, 79, 473. Huey V. Huey, 205. Huff V. Huff, 542. gj^ ,<, McCauley, 45. > Price, 27. Hughes V. Debuam, 194. Edwards, 124, 477, 497. Lane, 260. Vanstone, 353. Watson, 25. Watt, 388. V. Scovil,3-t, 209, 211, 214. Alexander, 464. King, 512. f» Sturdivant, 9. Hulse's Will, y?e,642. Humphrey v. Kurd, 409. Wait, 353. Humphreys v. Merrill, 287. Hundley v. Mount, 272. Hunn V. Case, 542. Hunt V. Adams, 18, 21. Amidon, 318, 358. Danforth, 376. Dohrs, 502, 503. Gardner, 375. Hamilton, 557. Hort, 574. Hunt, 69. Johnson, 32, 73, Mootrie, 542. Hunter v. Giddings, 245. Mills, 8. Morse, 106. Osterhoudt, 340. Waite, 37. Watson, 34, 67, 280. Huntington v. Lyman, 111. Hurd V. Coleman, 443, 485. Curtis, 118, 347. Robinson, 444. Hurlbert v. Wheeler, 222. Hurley v. Estes, 409, 497. Taylor, 36. Hurt V. Kelly, 511. Huse V. McQuade, 5. Huss V. Morris, 87. Stephens, 34, 70. Hussey V. Castle, 33. Hutchins v. Carelton, 473. Dixon, 88. Gilman, 232. Heywood, 136. Moody, 167. Hutchinson v. Bramhall, 272. Dearing, 407. Hartmau, 284. Hutchinson, 76. Rust, 251, 263. Huth V. Carondelet, 25. Hutton V. Benkard, 155. Hutzler v. Phillip, 426. Huxley v. Harrold, 260. Herald, 257. Huyler v. Atwood, 466. Hyland v. Stafford, 509. Hyman v. Devereux, 428, 458, 471. Hymes v. Esty, 170. Hyndman v. Hyndman, 574. Ide V. Stanton, 4. Iglehart v. Crane, 492. Ikerd v. Beaver, 9. Illinois Central R. Co. Illinois Fire Ins. Co. v Illinois R. Co. v. Indiana R. Co Inches v. Leonard, 497 V. McCullogh,226. , Stanton, 452. 119. Indianapolis Mfg. Uuiou v. C. C. C. & I. R. R. Co.,. 369. Ing V. Brown, 50. Cromwell, 445. IngersoU v. Sergeant, 23. Ingle V. Culbertson, 458, 511, 512. Ingles V. Patterson, 8. Ingoldsby v. Junn, 261. Ingraham v. Baldwin, 26, 311. Disborough, 472. Grigg, 260. Ingram v. Little, 21. Ingersen v. Rankin, 353. Inhabitants South Boswick v. Huntress, 21. In re Bellesheim, 27. Chawner's Will, 423. Covey's Will, 541. Dver, 540. Frith, 542. Heberton. 536. Hulse's Will, 542. Phillips, 261. Sheridan, 542. Shillabee. 540. Tuller, 551. Ireland v. Abbott, 502. Nichols, 340, 380. Irviu V. Smith, 273. Irvine v. Irvine, 25. McKeon, 79. Irving V. Brownell, 257, 261. Irwin V. Dyne, 8. Irwin, 542. Longworth, 113. Zane, 671. Isham V. Bennington Co., 252, 271. Ives V. Davenport, 154. Ives, 10. Kimball. 260. Van Auken, 118. Ivey V. Cranberry, 78. Ivory V. Burnes, 146. Jack V. Schoenberger, 553. Jacks V. Turner, 508. Jackson V.Alexander, 78, 83. Allen, 249, 340, 382. Andrew, 382. Andrews, 24. Bard, 204, 210. Betts, 549. Blodgett, 10, 471. Bodle, 211. Bowen, 443. Bradford, 309. Bronson, 471. Brownson, 382. Caldwell, 55, 56, 78. Campbell, 197. Catlin, 227. Clark, 10, 71, 513. Cleveland, 208, 212. Corey, 69. Corliss, 337, 361. Crafts. 483. Cutright, 8. Davenport, 156. Davis, 483. Delacroix, 304. Delaucey, 78, 116, 377, 580. Dillon, 56,78. Dominick, 4^3. Dunlap, 211. Dunsbagh, 56. Elston,279. Florence, 76, 78. Freer, 102. TABLE OF CASES. xlv Jactson V. Garclner,387. Garnsev, 36, 37. Gilchrist, 182. Gould, 20. Gunmaer, 26, 260. Harper, 377. Harris, 512. Harrison, 336. Hayner, 1S7. Henry, St. Holloway, 312, 535, 549. Hoover, 571. Hubble, 59. Hudson, 486. Ireland, 114. Ketchum, 24. Kipp, ;^36. Kisselbrack, 10, 304. Laughhead, 349. Leek, 56. 207. Litch, 3. Lowe, 4. Mancius, 3S8. Marsh, 170. McCall,210. McClallen, 333. Miner, 37. Minkler, 472. Montcrief, 10. Murray, 9, 309. Myers, 10. Neely, 74, 278. Page, 279. Peek, 37. Perrine, 88. Phillips, 202. Phipps, 207, 209, 214. Post, 287. Potter, 534. Pratt, 486. Rice, 271. Richards, 212. Root, 71. Rowland, 226, 227, 349, 388. Sackett, 497. Scoonmaker, 263. Schutz, 382. Sebring, 55. Sheldon, 204, 224. Shepard, 251. Shoonmaker, 65. Siebring, 78. Silvernail, 361. Stanford, 31. Stevens. 169, 309. Stockhouse, 491. Swart, 116. Titus, 373. Todd, 310. Topping, 98, 339. Town, 37. Veder, 151. Walsh, 28S. Willard, 370, 471. AVinslow, 169, 171,364. Wood, 269. Zwart, 55, 56,116. Jacobs V. Davis, 176. Miller, as. Jacoway v. Gault, 260. Jacques v. Short, 74, 277, 348. Jaffe V. Harteau, 344. James v. Drake, 281. Morey, 383, 470, 472, 473. Roberts, 443. Jamison v. Craven, 205. Dimock, 8. Jamison, 559. Jjuts V. Jenkins, 167. Jaques v. Gould, .S30. Weeks, 261, 281. Jarnagan v. Gaines, 485. Jarrett v. McDanlel, AHS, 443. Jarvls V. Albro, 497, 504. Dutcher, 426. Jayne V. Gregg, 65, 204. Jeffery v. Graham, 124. Jeffries v. Jeffries, 9, Jelks v. Barrett, 4. Jenckes v. Cook, 388. Jencks v. Alexander, 512. Jenison v. Hapgood, 514. Jenkins, Will of, 541. Jenkins v. Einstein, 36. Jenkins v. Eldridge, 304. Hopkins, 167, 176. Hurt, 180, 195. Jenkins, 26. Jones, 460. Pye, 29. Stetson, 496. Ward, 167. Jenkinson v. Fahey, 9. Jennessv. Robinson, 479. Jennings v Alexanaer,349. Brizeadine, 83, 88. Jennings, 571. Wood, 289. Jenny v. Jenny, 182. Jenny Llnd Co. v. Bower, 5. Jerome v. Ortwan, 193. Jesse V. Parker, 542. Jewell V. Porter, 32, 36. Jewett V. Cook, 36. Ricker, 119. Stockton, 31. John V. Hatfield, 18. Johns V. Whitley, 338, 382. Johson's Will, 557. Johnson v. Anderson, 443. Badger, otc. Co. 260. Baker, 222. Beazley, 73. Brailstord, 549. Branch, 225. Brown, 471. Bryan, 260. Candage, 479. Carnett, 471. Carpenter, 470, 472. Collins, 176. Delaney, 146. Dodge, 7. Dorsey, 512. Douglas, 382. Farley, 205, 208, 211, 212. Fay, 183. Gurley, 382. Harmon, 479. Hart, 471. Hollensworth, 160. Houston, 401,408. Huston, 411. Johnson, 492, 542. Leonard, 470. McGehee, 254. Moutll, 464. Moore, 18. Muzzy, 61. Nations, 486. Oppenhelm. 389. Pnifer, 26,i30. Phoenix Mut. Life Ins. Co., 304, 364. Reed, 174. Rice, 492. Richardson, 443. Rogers, 32. Sherman, 376, 483. xlvi TABLE OF CASES. Johnson v. Skagg9,36. Kane v. Roberts, 37. Stagg, 210. Kansas Paciflc R. R. Co. v. Dunmeyer, Stillings. 32. 170. Taylor, 79, 265. Kansas City Sav. Ass'n v. Martin, 503. Turner, 458. Karmuller v. Krotz, 91. Walton, 260. Karnes v. Lloyd, 411. Watson. 407,514. Keams v. Keams, 557. White, 481. Keating v. Condon, 372. AVilklnson,3. Keen v. Monroe, 18. Wright, 2B6. Keenan v. Cavanaugh, 101. Zink, 4G5, 466. Keichline v. Keichliue,251. Johnson County v. Wood, 99. Keith V. Swan, 315. Johnston v. Eason,513. Kellam v. Kellam, 125. Glancy, 8. Keller v. Moore, 255. Haines, 258. Orr, 27. Jones, 4. Kelleran v. Brown, 414, 415. JoUand v. Strainbridge, 281. Kelley v. Pike, 31. Jones V. Berkshire, 265. Sheldon, 9. Berryhill, 449. Vigas, 576. Bowier,506. Kellogg V. Ames, 473, 485. Brewington, 425. Carrico, 512. Bush, 212. Dickerson, 486. Butler, 25. Frazier, 444. Cincinnati Type Foundry, 34. Hale. 137. Conde, 500. Ingersoll, 167. Crawford, 193. Kellogg, .33. Dougherty, 78. Loomis, 249. Elliott, 444. M.din, 165, 167, 176. Franklin, 168, 169. Mix, 571. Gardner, 167. Mullen, 101. Hartley, 550, 553. Piatt, 170. Hughes, 26. Richardson, 36. Janes, 427. Robinson, 167,348. Jones, 9, 361, 541. Smith, 103, 470. King, 37. Kelly V. Bryan, 416. Larabee, 542. Calhoun, 253, 260. Black, 515. Dunlap, 2o4. Moore, 513. Kelly, 585. Blorris, 11)3. Mills, 287. IMudd,9. Reynolds, 571. Patterson, 312. Rosenstock, 259. Powers, 271. Thompson, 414. Reed, 336. Kellum, In re, 559. Robinson, 571. Kelsey v. Remer, 167. Sehulnieyer, 443, 445. Tourtelotte, 365, 367. Shewmaker, 554. Kembal v. Scrafton, 551. Smith, 74, 472. Kemerer v. Bournes, 496. Warner, 170. Kemp V. Porter, 256. Williams, 571. Walker, 208. Woods, 155. Kendall v. Kendall, 554. Jordan v. Cheney, 471. Lawrence, 25, 310. Corey, 260, 264. Kennedy v. Knight, 449. Davis, 206. Northup, 286. Eve, 167. Ross, 445. God man, 183. Stacy, 183. Jordan, 168. Kennelly v. Kelly, 485. McClure, 85, 114. Kenner v. Amer. Con. Co., 124. Mitchell, 449. Keunett v. Plummer, 407, 408. Peak, 183. Kenney v. Norton, 170. Pollack. 224. Kent V. Agard, 183. Sayre, 492. Lasley, 416. Stevens, 56. Waite, 93. Joslyn v. Wyman, 443. Welch, 173. Joy V. Adams, 497. Kentucky River Co. v. Commonwealth, Joyner v. Farmer, 514. 382. Kenyen v. Segar, 200. Judd V. Fulton, 380. O'Brien, 512. Kepner v. Keefer, 39. Woodruff, 69. Kerns v. Swope, 252, 281. Judge V. Forsythe, 503. Kerr v. Birnie, 78, 212. Judy V. Williams, 574. Day, 145. Justice V. Lang, 6. Freeman, 49. 59. Gilmore, 414, 416. K. Hill, 3. Merchant's Exchange, 389. Merrill, 344. Kabley v. Worcester Gas Co., 304. IMoon,532. Kain v. Old, 5. Russell, 268. Kaine v. Weigley, 36. Kerwin, Ex parte, 21. Kamena v. Huelbig, 472. Kessler v. McConachy, .357. Kamphouse v. Goffner,' 327. State, 274, 289. TABLE OF CASES. \- 1 V 1 1 Ketchum v. Johnson, 417. Keteltas v. Coleman, .S5'J. Keteltas, 571. Keyes v. Bump, 4;-i6. Wood, 471. Kickland v. Menasha, etc. Co., 79. Ivieistedv. Orange, etc. U. K.Co., 366. Kieser v. Baldwin, 485. Kiester v. Miller, .^dC. Kilborn v. Robbins, 470. Kilgour V. Gockley, 471. Kille V. Ege, 212. Killmore v. Howlett, H. Kilpatrick v. Heuson, 451. Kilpatrick, '287. Kimball v. Blaisdell, 171. Cuddy, 26. Eaton, 1S7 Johnson, 25G. Lack wood, 370. Pike, 370. Semple, 90, 171,260. Thompson, 36. K:me v. Brooks, 230, 245. Kimpton v. Bronson, 4s4. Walker, 173, 346. Kincaid v. Brittain, 164, 165. King V. Beck, 575. Duntz, 511. Gilson, 164, 165, 173, 175. Harrington, 470. Housatouic R. R. Co., 377. Jones, 349. Lougnor, 245. Meighen, 477. Newman, 417. Robinson, 512. Ruckman, 5. State Mutual Fire Ins. Co., 452. Stetson, 182. Whiteley, 466. Kmg's Chapel v. Pelham, 339. King's Heirs v. Thompson, 8. Kmgdon v. Xottle, 164. Kingsbury v. Burnside, 146, 211. Milner, 177. Kingsland v. Chittenden, 104. Kingsley v. Holbrook, 200. Kinley v. Hill. 4S3. Kinnear v. Lowell, 167. Kinnehrew v. Kinnebrew, 79. Kinney v. AVatts, S4. Kinsley v. Ames, 423. Kip V. Merwin, 353, 357. Kirk V. Dean, 182. Kirkaldie v. Larrabee, 44S. Kirksey v. Snedecor, 37. Kiser v. Heuston, 289. Kissam v. Dierkes, 154. Gaylord, 101. Kitchen v. Kitchens, 557. Lee, 310. St. John, .364. Van Uvck, 182. Klaer v. Ridgway, lis. Klein V. McXamaru, 416. Klinck V. Price, 415, 416. Kline v. Beebe, 25. Jacobs, 344, 353. Kline, 37. T,, , Vogel, 513. Klock V. Cronkhite, 512. Klopworth V. Dressier, 465. Knadler v. Sharp, 164, 166. Knapp V. Maltby, 21. Marlbore, 352. Pattisou, 541. Smith, 312. Kneeland v. Van Valkenburg, 104. Knepper v. Curtz, l7o, 173. Knickerbocker v. Killmoro, 374. Knife v. Palmer, 311. Knight V. Clement, 19. New England Co., 5. Thayer, 27, 169. Knoff V. Hansen, 223. Knolis V. Barnhart, 212. Knowles v. Carpenter, 464, 466, 473. Hull, .381. Kennedy, 169. Lawton, 473. Knowlton v. Walker, 414,477. Kuoxv. Bailey, 376. Galligan, 472. Johnson, 485. Koch V. Briggs, 458, 477. Konconrek v. Mawak, 28. Koehler v. Black River, etc. Co., 197. Koger v. Weakley, 502. Kohn V. Clement, 36. Kornegay V. Collier, 370, 377. Spicer,509, 514. Kortright v. Cady, 443, 451, 480, 483. Commercial Bank of Buf falo, 21. Kortz V. Carpenter, 170. Kramer v. Carter, 17C. Farmers', etc. Bank, 496. Weinert. 526. Krider v. Ramsey, 375. Kroneuberger v. Hoffncr, 101. Krueger v. Ferraut, .344. Kruse V. Wilson, 96. Kuhns V. Bankes, 353, 471. Kurtz V. Holliniiheaa, 65. Sponaljle, 471. Kutter V. Smith, 354 Kutz V. McCune, 167. Kuykendald v McDonald, 36. Kyle V. Kavanagh,59. Labaree v. Carleton, 77. 126. Laberge v. Chauviu, 471. Lacey v. Marnau, 175. Lacke V. Coleman, 364. Rowell, 5. Laclede Bank v. Keeler, 563. Lacey v. Wilson, 28S. Ladd V. Ladd, 153, 154. Smitn, 3*7. Wiggin, 491. Ladd's Will, 549. Ladnier v. Ladnier, 36. La Farge Fire lu;?. Co. v. Bell, 282. Laidlev v. Knight, 261.'. Laird v. Scott, 37, 249, 260. Lake v. Campbell. 364. Grav, 76, 7s, 249. Lally V. Holland, 2sy. Lamar v. Turner, 74. Lamarque v. Laughlair, 260. Lamb v. Bui bank, 172. Dant'orth, 167, 170. Gil tman, 541. Helm, 586. Tucker, 466. Wakefield. 31, 171. Lambert v. Kinney, le3. Smith," 78. Lamberton v. Merchants' Nat. Bank, 287. Lamount v. Stlmson, 281. Lamptou v. Usher, 214. Lampson v. Clarkson, 388. Lamy v. Burr, 236. Lana"han v. Ward, 449. Lancashire v. Mason, 372. Lancasshire v. Laucasshire, 154. xlviii TABLE OF CASES. Lance's Appeal, 416. , ^, . Lancey v. Phcenix Fire In3. Co., &. Landers V. Beck, 416. Bolton, 251,263, 280. Brant, 280. Landrum v. Union Bank, 513. Lane v. Fury, 177. Kingsburj', 37. Lane, 542. Thompson, 91. Vick,671. Lanfair v. Lanfair, 442. Langdon v. Keith, 471. Langridge v. Payne, 445. Langton v. Marshall, 260. Lansing v. Goelet, 502. Van Alstyne, 3o7. Lapham v. Olney, 532. Large v. Van Doren, 485. Larison v. Burt, S. Larson v. Reynolds, 183. Lasey v. Simpson, 278. Lassen v. Vance, 182. Latham v. Latham, 671. Udell, 205. Lathropv. White, 33. Latimer v. Moore, 315. Laughlin v. McDevitt, 526. Laughton v. Atkins, 547, 549. Hardin, 37. Lavender v. Adams, 540. Lawless v. Colier, 175. Lawrence v. Brown, 377, 385. Farmer's Loan & Trust Co., 459, 511, 513. Fox, 466. Gebhard, 236. Knapp, 471. Stratton, 470. Taylor, 230. Towl, 464. Lawton v. Buckinham, 79, 175. Gordon, 36, 201, Sager, 224. Lawyer v. Slingerland, 183. Layman's Will, 559. Layman v. Whiting, 515. Layton v. Hastings, 31, Leach v. Duvall, 37. Koenig, 388. Learned v. Chouteau, 9, Cutler, 181, 182. Foster, 512, Leary v, Durham, 168, Leavitt v. Fletcher, 344, 363,357, Lamprey, 181, Towle, 118. Lebanon School Dist. v. Lebanon Fe male Sem., 383. LeBean V, Glaze, 491. Leev.Adkins, 180,195, Alexander, 18, Birmingham, 291, Cato, 288, Cherry, 4, 5, Kingsbury, 183. Mahoney, 4, Mason, 511, Newman, 74, Tucker, 114, Leeds v, Cameron, 443, Compton, 361, Lees V, Brownings, 559, Lefevre v, Lefevre, 535, 574. Murdock, 27. Lefiel V. Schermerhorn, 36. Lefflngwell v. Elliott, 177. Leffler v. Armstrong, 512. LeFranc v, Richmond, 193, Legare v, Ashe, 548. Leiby v. Wolf, 276. Leitensdorfer v. Delphy, 86. Leland v. CoUver, 452. Leman v. Whitley, 146, Lenox V, Reed, 424. Lente v. Clark, 4. Leonard v. Burgess, 370. Leonard, 26, Morris, 608, Villars, 449. Vredenburg, 4. White, 582. Leppic V. Union Bank, 212. Lerned v. Morrill, 102. Leshey v, Gardner, 36, Leslie v. Craig, 536. Lestrade v. Barth, 281. Lettick V. Honnold, 389. Levey v. Dyess, 345. Levow V, Wilmuth, 37, Levy V. Merrill, 4 Lewis V, Baird, 252, 271, Beall, 57, Chisholm, 344. Coxe, 182, Hinman, 289, Lewis, 101, Overby, 180, 195. Paschal, 449, Payne, 18, 20, 367, Richey, 496. Starke, 471, Wells, 458. Libbey v, Talford, 344. Liber v. Parsons, 177, Lickmon v. Harding, 263. Liddell v. Sims, 174. Life Association v. Cook, 409, Lightner v. Mooney, 273. Lillard v. Rucker, 69, 279, Lilley v. Fifty Associates, 382. Lillie V. Dunbar, 3. Lilly V, Palmer, 466, 473. Linch V, Livingston, 83, Linden v, Hepburn, 369, Lindley v, Dakin, 165, 377. Groff, 224, 227, Lindsay v, Lindsay, 222, Line v. Blizzard, 28, Lines v, Darden, 571, Llngke V, Wilkinson, 37, Linker v. Long, 20. Linn v, Burgoyne, 232. Patton, 260. Lippett V, Kelly, 108. Lippencott v, Mitchell, 33, Lippold V, Held, 485. Litterall v, Jackson, 9, Little V, Hazard, 31. Herndon, 19, Weatherford, 260. Littleton v, Addington, 686, Littlewort v, Davis, 415. Livingston v, Livingston, 5.o0. Mayor, 173. Peru Iron Co., 24, Potts, 387. Prosens, 24, Lloyd V, Bunce, 37, 88, Scott, 449, Williams, 449, Lloyd's Lessees v, Taylor, 182, Loader v, Kemp, 353. Lockett V. Hall, 458. Hill, 514. Lockhart v. Beckley, 37. Roberts, 21. Lockwood y. Lockwood, 477, 557. Sturtevant, 165. TABLE OF CASES. xlix Lodge V. Leverton, 8. Turnian, 417. Loeb V. McCullogh, .«. Logan V. Anderson, 386. Bull, y. Moukler, 177. Simmons, r!7. Williams, 265. Long V. Dollarhide, -278. Long, ISO, 195. Miller, 4. Moler, 167. Wade, 407. Wagoner, 90. White, 3. Longfellow v. Longfellow, 388. Longwith v. Butler, 428. Loomis V. Bedel, 170, 171. Bush, 32, 271. Donovan, 496. Pingree. 65, 204. Looney v. McLean, 844, 353. Lord V. Bourne, 535. Falmar, 200, 249. Lord, 542. Morris, 497. Sherman, 236. Loring v. Coolje, 484. Losee v. ^lorey, 9. Los Angeles Assoc, v. Phillips, 9. Losey v. Bond, 27. Simpson, 472. Lothrop V. Foster, 181. Loubat V. Kipp, 225. Loud V. Darling, 24. Loughridge v. Bowland, 271, 287. Love V, Buchanan, 575. Howard, 558. Johnston, 553. Shields, 50, 259. Sierra Nevada, etc. Mining Co., 246. Wells, 39. Love's Executors v. Welch, 6. Lovejoy V. Lovett, 108. Richardson, 190. Lovelace v. AVebb, 443, Lovelace's Case, 245. Lovering v. Lovering, 84, 173. Lovett V. Dimond, 472. Steam Saw Mill Association, 197. Low V. Graff, 415, 416. Purdy, 511. Lowe V. Griffiths, 310. Weatherley, 79. Lowell V. Daniels, 27. Strahan, 361. Wren, 263. Lowery v. Drew, 31. Lucas V. ClatUin, 36. Coulter, 344. Harris, 471. Lucas, 37. Luce V. Dimock, 534, 554. Luck's Appeal, 426. Luckett V. Williamson, 2. Ludeke v. Sutlierland, 4. Ludington v. Harris, 465, 466. Ludlow V. I\idd, 24. Ludlow, 542. New York & Hudson R. R., 382. O'Neil, 254. Van Ness, 271. Lufkin V. Curtis, 181. Lumbard v. Aldrich, 33. Lumpkin v. Wilson, 237. Lund V. Lund, 395. • Rice, 271. Luney v. Mead, 466. Lunn V. Gage, 3,53. Lunstord v. LaMotte Lead Co., 196. Lunt V. Lunt, 470. Lydston v. Powell, 423. Lyerly v. Wheeler, 65. Lyford v. Ross, 469, 470. Lyles v. Lyles, 620. Lyman v. Babcock, 5. Loomis, 87. Lynch v. Baldwin, 380. Livingston, 56, 2.56. Onondago Salt Co., 173. Lynde v. Budd, 2o. Hough, 337, 340, 361. Lyon V. Green Bay R. K. Co., 33. Kain, 67. Kent, 233. Mcllvaine, 473. Reed, 387. Robbins, 479. Smith, 542. Lyons v. Van Riper, 186. M. Machias Hotel Co. v. Fisher, 390. Mack V. I'atchin, 177, 344. Wetzlar, 471. Mackall v. Richards, 85. Mackay v. Bloodgood, 196. Mackey, He, 542. Mackreth v. Symmons, 427. Madden v. Tucker, 4. Madison City v. Hildreth, 108. Maeder v. Carondelet, 173, 343. Magee v. McMann, 9. Magill V. Mer. Trust Co. ,.33. Magness v Arnold, 259. Magnusson v. .lolinsoii, 416. Magruder v. State Bank, 443. Maguire v. Riggan, 165, 170. Mahoney v. Middleton, 288. Main V. Feathers, 357. Ryder, 541. Maine Bank v. Butts, 449. Majors V. Rice, 102. ^lajor's Admr. v. Buckley, HI. Malcolm V. Allen, 445. Malin v. Malin, 18, 145. Malins v. Brown, 8. Mallett V. Page, 493. Mallory v. Horau,181. Hitchcock, 473. Stodder, 273, 274, 288. West Shore Hudson River R. R. Co., 496. >fonandas v. Maun, 252. Mandeville v. Parker, .142. Mandlebaum v. ."McDonell, 585. Manegold v. Barlow, 291. Maney v. Porter, 163. Manhattan Co. v. Osgood, 449. Manning v. Brown, 174. Smith, 112. Mansony v. C. S. Bank, 407. Mantle v. Wallington, 314. .Manuf. Bank r. Bank of Penn., 429. Mapps V. Sharpe, 471. :\Iara v. Pierce, 280. Marbury v. Thornton, 170. March v. Huyter, 31. Marchant v. Errington, 73. Marden v. Chase, 56, 83, 116. Margraf v. .Muir, 9. Marine Bank v. International Bank, 496. Mariner v. Saunders, 249. JIarkland v. Crump, 34ij. Markol v. Andras,427. Marks V. Crow, 37. (d) TABLE OF CASES. Marlborough v. Godolphiii, 152. Marple v. scutt, 1(57. Marquat v. Jliirquut, ai'2. Marqueze v. Ualdwell, 6. Marr v. Given, 235. Man-, 519. Marsh v. Austin, 208, 209. Marcindale, 449. Mitchell. 101. Pike, 465. Turner, 427. Marshall v. Billingsley, 472. Boiupart, 106. Groom, 36. risk, 136. Roberts, 285. Trumbull, 118. Marston v. Brashaw, 261. Brittenham, 263. Hobbs, 165. Marston, 37. Roe, 551. Martel v. Somers, 281. Martin v. Baker, 164, 166, 348, 349, 376. Ballou, 125. Colburn, 27. Flowers, 246. Fridley, 479. Long, n^. Martin, 32. Mitchell, 527. Mowlin, 409. McReynolds, 471. Noble, 502. O'Connor, 369. Osborne, 582. Paxson, 511. btearns. 387. Waddell, 105. Weymau, 6. Williams, 273. Martindale v. Smith, 483. Martineau v. McCollum, 471. Marvin v. Titswort'i, 458. ^i^t, Vedder, 485. Maryland, etc. Go. v. Wingert, 485. Marys v. Anderson, 380. Masle V. Kuhlman, 74. Mason v. Ainsworth, 458, 510. Barnard, 445, 464, 466. Brock, 201, 249, Cooksey, 170, 177. Mason, 4. Smith, 376. Northwestern Ins. Co., 476. AVhite, 87. Massey v. Westcott, 287. Massie v. Greenhow, 281. Masterson v. Creek, 208. Mastin v. Haley, 249, 264. Masury v. Southworth, 347, 350, 359. Mather v. Corliss, 211. 227. (iit; Heather, 37. Scoles, 9. Mathews v. Aiken, 465. Coalter, 19. Demeritt, 279. Jarret, 9. Jordan, 37. Wall wyn, 472. Ward, 270. Matson v. Melclie-, 37. Matter v. Rov^ r, 571. Matthie v. Edwards, 509,511. Matthews v. Hey ward, 472, Ward's Lessee, 45. Matthiessen & W. R. Co. v. McMahon, 242. Mattice v. Lord, 382. Mattix V. Weand, 485. Mau V. Pierson, 165. Maul V. Rider, 276, 281. Maule V. Ashmead, 84, 173. Maupin v. Emmons, 279, 283, 284. Maus V. McKellip, 443. Worthing, 230. Maxon v. Scott, 312. May V. Borel, 282. Le Claire, 59, 285. Maybury v. Brlen, 182, 407. Maj-er V. Adrian, 8. Gowland, 550. Isaac, 99. Mayham v. Coombs, 427. Mayhew v. Hardesty, 373. Maynard v. ^Maynard, 212. Mercer, 236. Vinton, 542. Mayor of New York v. Maybie, 81, 170 344, 352. Mayor, etc. v. Williams, 516. Mays V. Price, 32. McAfee V. McAfee, 492. McAfferty v. Gonover, 88. McAlister v. Gilmore, 580. McAnually V. O'Nell, 37. McAnulty v. McAnulty, .551. McBryde v. Wilkinson, 249. McBurney v. Mclntyre, .361, 370. McCabe v. Farnsworth, 470. Grey. 274, 2b9. Swap, 465. McCamant v. Patterson, 279. McCan V. Marshall, 415. McCann v. Atherton, 221. McCandless v. Engle, 472. McCanley v. Grimes, 182. Fulton, 70. McCarron v. Cassidy, 480. McCartney v. Osburn, 575. Mccarty v. Leggett, 164. Piuet, 427. McClain v. Sullivan, 473. McClellan v. McGlellau, 146. JlcClintock v. Laing, 9. McClung V. Steen, is, 21. McClure v. Burnes, 471. Colclough, 205. Gamble, 177. Harris, 182. McClure, 549. McClurg V. Phillips, 290, 425, 503. McColev. Loehr, 37. McCollough V. Cox, 126. McComb V. Wright, 366. Spangler, 33. McConnel v. Reed, 59. McConnell v. Brvner, 3. Brill hart, 4. Brown, 65, 204. McCormack v. Sage, 4. Woods, 249. McCormick v. Bush, 153, 2.32. Digby, 471, 491. Fitzmorris, 19. Hernden, 416. Liggett, 25. Malin, 9. Stowell, 361. McCoy v. Hance, 102. Rhodes, 287. McCracken v. Haywai-d, 601. McCraney v. Alden, 449. McCraven v. McGuire, 256. McCrea v. Purmort, 6, 79. McCrelish v. Churchman, 174. McCreary v. Skinner, 36. McCullouch V. Endaly, 286. McCurdy v. Alpha Mining Co., 112. A\ call, 554. TABLE OF CASES. h McDaniel v. Johns, 118. McCoy, •!>'>. McDonald v. Craudall, 181. Eggleston, 21. Morgan, 70. Morton, 26. McDonough v. Laughlin,542. McDougald V. Capron, 4TS. McDowell V. Fisher, 413. Simpson, 7. McDuff V. Beauchamp, 33. McElfresh v. Guard, 541'. McEwen v. Troost, 205. McFaddeu v. Worthington, 284, 287. McFarlan v. Watson, 313. McFarland v. Febiger,182. McGary v. Hastings, 170, 177. McGee v. McGee, 182. Porter, 541. McGill V. Ware, 449. Woodward, 76. McGinnis v. Keinpsey, 559. McGiven v. Wheelock, 473. McGlashan v. Tallinadge, 344. McGlynn v. Moore, 336, 340, 382. McGonigal v. Plummer, 427. McGowan v. Branch Bank of Mobile, 502. Hitt, 37. McGrady v. Brisbane, 166. McGrath v. Bnrry, 183. Boston, 304. McGraw v. McGraw,212. McGreadj' v. McGready, 443. McGregor V. Conistock, 58. McGuffle V. Carter, 388. McGuire v. Kerr, 641. Van Pelt, 458, 485. Mclntier v. Shaw, 414. McKaskie v. Amaiiue, 280. McKay v. Carringtou, 145. McKean v. Mitchell, 252. McKee v. Bain, 175. Hicks, 220. McKenzie v. Lexington, 386. McKey v. Welch, 31. McKildoe v. Darracott, 340. McKim V. Mason, 453. McKinlej" v. Lamb, 542, 559. McGregor, 233. McKinney v. Harvey, 4. Reader, 386. Settles, 82. McKinnon v. Reliance Lumber Co., 36. McKinzie's Appeal, 585. McKissick v. Uelquhoun, 271. McLane v. Johnson, 36, 37. McLaughlin v. Bishop, 327. Cosgrove, 443. Shepherd, 414. McLean v. Lafayette Bank, 36, 492, 493. Nelson, 209. Presley, 445, 514. Ragsdale, 496. Wilson, 196. McLarew v. Benton, 295. McMahonv. Bowe, 24. McGraw, 249. Morrison, 76. McManus v. Carmichael, 105. McMastersv. The Commonwealth, 265. McMechan v. Grifflng, 281, 283. McMenty v. Frank, 230. McMnllen v. Eagan,260. McMuUin v. Solomon, 357. McMurphy v. Minot, 370. McMutrie v. Bennett, 8. McMutry v. Brown, 190, 245. McNair v. Lot, 477. Plcott, 491. McXamara v. Culver, 417. Seaton, 102. McXamee v. Withers, 8. McXaughton v. Partridge, 31, 246. McN'eely v. Rueker, 263. McNeil V. Ames, 372. McNeill V. Norsworthy, 417. McNitt V. Turner, 287. McPhersou v. Featherstone, 208. Sa!iborn,26.3. Wiswell, 8. McQuestion v. Morgan, 3.35, 336. Mc()uie V. Beay, 425. Mcliaven v. Crisler, 174. McGuire, 195. McSorley v. Larissa, 470. McTaggart v. Thompson, 550. jMcVey v. Green Bay U. R. Co., 33. McWharter v. McMahon, 7. McWhorter v. Wright, 76. McWilliams v. Lawless, 7. Meacham v. Steele, 467. Mead v. Combs, 29. Jennings, 570. York, 443. Meador v. Meador, 426. Meagher v. Thompson, 190. Means v. Presbyterian Church, 88. Moore, 549. Mechanics' Sav. Bank v. Goff, 466. Mecum v. Peoria, etc. R. R. Co., 174. Medley v. Elliot, 451, 497. Medsker v. Swaney, 514. Meech v. Ensign, 466. Fowler, 65, 204. Meekan v. Rourke, 542. Meeker v. Meeker, 79. Meeting House v. Hilton, 326. Mellen v. Ames, 36. AVhipple, 331, 466. Mellican v. Mellican, 146. Melvin v. Fellows, 444. Props, etc., 216. Memphis R. R. Co. v. Neighbors, 124. Menard v. Crowe, 512. Mendenhall v. Parish, 79. Meni T. Rathbone, 273, 336, .382. Menkens v. Blumenthal, 102. Mense v. McLean, 281. Merchant's Will, 541. Merchants' Bank v. Spicer, 70. Meredith v. Jones, 137'. Merrick V. Wallace, 289. Merrifleld v. Parritt,215. Merrill v. Bullock, 3.3, Chase, 483. Emory, 124. Montgomery, 253. Merrills v. Swift, 2US, 212, 214. Merriman v. Moore, 466. Merrin v. Lewis, 458. Merritt v. Bartholiek, 409, 470, 471. Clason, 16. Hosn\er, 479. Morse. 170. Mervln v. Murphy, 438. Metcalf v. Brandon, 212. Methodist Church v. Jaques. 205. Met. Lite Ins. Co. v. Meeker, 28. Meurer's Will, 542. Meyer v. Fogg, 542. Kinzer, 33. Lathrop, 466. Mej'senburg v. Schlieper, 509. Miama, etc. Co. v. United States Bank, 415. Michael v. Foil, 3. Michigan Insurance Co. v. Brown, 444, 477, 497. Middlebury College v. Cheney, 169. TABLE OF CASES. Middlesex Bank v- Minf ' ^^^-q, ' Middletonv.l:ndU,.-.-u,m Selby, y. Miles V. Boyden 554. Gray, 471. King, 2S1. Mill Dam Fotindryv. Hoover, W7 Millay V. Wiley, 0-42. Miller v.Adkinson, 5a. Aldnch, i'ol. Bradford, '289. Chittenden, 34. , Craig, 26. Edgerton, 79. Fletcher, 224. Goodwin, 79. Harhert, 365. Heine, 312. Henshaw, 261. Hull, 512, 513. Irvine, 4. Kirby, 36. Maun, s7. McNeil, 541. Miller, 37, 559. Morris, 362. Physick, 2^7, 211. Thouipson, it, loo- Tbointon, 344. Yturria, 416. MiUican v. MilUcan 29. Milliken v. Bailej , 480. Mills v. Baehr's Ex.,_3o/. ^^ Catlin, 99, 160,1 '1- Comsiock, 470. Dai ling. 414. Dennis, 502. ■ Hamilton, 3b8. Smith, 279, 281. Van Voorhis, Ibi. Watson, 466. Milton V. Waun, 104. Mims V. Buckett, b. Miner's mSfco.",.Ze.l«.>.ck,I«,l«'. 253. Minor V. Hill, .496 Minot V. Curtis, o74. Minturn v. *^eyuiOui, jb. kitchen V. Bartlett 204. Bogan,4»J3. BuLnhain,39o, 469, 4iO. Colglorzier,33. Cook, 470. Maupin,238. Parhani, 180,195. inusbury, 167. Ryan, 207 209 Warner, 164, 167. Wilson, 111. Mis V. Hotchkiss, 443. Madison Insurance Co., 441 Mixell V. Butz, 37 SS^Loi-^'S^'H^e Association .. City of Boston, 512. Modisett v. Johnson .). Moffatt V. Hardin, 4/2. smith, 353, 3u7 Mohr V. Parmalee, 167. SSKl»o"'v.«u».n.ese..,M,se. R. National Bank, Monroe v.Poorman, 263. Montag V. Lmn. 19. 2^5. Montague v. ^^^^f'^ Albany K. Co , 480. Dawes, 512, 514. Montaynev.Wallahan,389. Montcalm v. ^^l}}^'^'^^:^^ 411. 477. Montgomery v.Gh^advv^ick,^4i4, McEwen, 509. Milliken, 532. Reed, 165, liO. Spect, 416. Sturdivant, 60, ill- Moody V. McCown 10. Palmer, 104. Moores V.White, 654. Mooney V. coo edge, 119. Moore v. Aberthnai , -&■ Beason, 4.s. Bond, 485. Cable, 4S0. Cord, 470. Dimond, on. Farrow, 230. Fuller, 443. Giles, 212. Gordon, 8. Griffin, 91. HazeUon,2I^. Hegemau, B'l.: Huuter, 271. Ivers, 18. Jordan, 280 Lanhuiu, 168. Leseur, 195. Lowery, 36. Merrill, 162. Metropolitan 472. >;ew York, 181. Pendleton, 230. Ragland, 443. Rake, 27. Sloan, 470. Sotter,20. Tisdnle, 182. Vail, 170. Wade, 416. Weber, 344. ^ Moranv. Dillehay, oa. Moreau v. Detchemeudy, 58. Moreland v. Barnhart, 416. Morey v. Sohier 0.^4. Morgan v. B«^|^n,J^^ ^^^ ^^_^ ^.^ Morgan, 287,477. Smith, 387. Moritz V. Layelle, 3. Mormon v. Mormon 26. Morrill V. ^i^'^'^i'-J^- Noye.s,438. Phillips, 575. Morris v. Bacon, 471. Geisecke, 183. Harris, 27, 173. Henderson, 680. Jones, 31. Kixon, 30. Sargent, 182^ Stephens, 6/. Swaney, 557. Tillson, 353, 389. Tuthill,496. Vandereu, 19. Ward, 183. White, 490 Morris Canal v.Ryerson, 79. TABLE OF CASES. Illl Morrison v. Bean, 588. Ilrand, 417. Brown, 271. Caldwell, 65. Dailey, 1. Galloway, 174. Kelly, 208 Mc.Vnlnir, 175. Mendenliall, 470. Morrison, 26, 186. Peay, 9. Rossignal, 354. Shattuck, 288. Underwood, 164, 176. White, 2.57. Morrow V. Higgins, 230. Morse v. Carpenter, 69. Clayton, 260. Dewey, 438. Merritt, 504. Morse, 551. Rogers, 101. Wright, 271). Morton v. Barrett, 575. Dean, 7. Ingram, 542. Leland,200. Stone, 7. Mosby V. Hodge, 458. Moseley v. Hodge, 508. Mosely V. Marshall, 296. Moses V. McClain,183. Mosher v. Chapin, 443. Moshier v. Knox College, 36. Meek, 427. Moss V. Anderson, 193. Gallimore, 315, 407. Motley V. Sargent, 104. Mott V. Clark, 471, 472. Harrington, 415. Mott, 104. Palmer, 164, 165. Smith, 237. Moule V. Weaver, 61. Moulton V. Trafton, 118. Mounce v. Byars, 426. Mounsey v. BUunire, 575. ' Mount V. Kesterson, 249, 260. Mowatt V. Carow, 575. Mowrey v. Walsh, 86. Moyer's Appeal, 8. Muir V. Cross, 427. Galloway, 260. Muldrow V. Fox, 153. Robison, 281. Mulford V. Peterson, 471, 473. Mullanphy v. Simpson, 479. Muller V. Boggs, 256. Boone. 253, 260. Mullison's Estate, 443. Mullin V. Bloomer, «. Mullins T. Cabiness, 174. MuUiken v. Graham, 261. Mulvey v. Gibbons, 515. Gibson, 514. Mundy v. Vawter, 281, 45S. Mumford v. Brown, 353. Mummy v. Johnson, 271. Munigle v. Boston, 381. Munn V. Burges, 513, 514. Fabian, 8. Worrall, lis. Munter V. Linn, 443. Murdock v. Memphis, etc. R. R. Co. ,260. Murphy v. Galley, 414, 417. Campbell, 93. Murphy, 542. Murray v. Ballow, 24, 163. Blackledge, 70, 470. Murray v. Emmons, 312. Harway, 3*0, 361, .382. Judson, 74. Shave, 'iSo. Stair, 225 Murrell v. Jones, 469. Musgat V. Pumpelly, 5. Musgrave v. Sherwood, 167. Musgrove v. Bouser, 252, 279, 291. Kennell, 472. Muskingeene Turnpike v. Ward, 69. Musser v. Johnson, 197. Mussey v. Holt, 20, 370, 377. Mustard v. Wohhord, 25. « Mutter's Estate, .571. Mutual Benefit Life Ins. Co. v. Brown 7 Mutual Life Ins. Co. v. Sandfelter, 37 ' Myers v. Boyd, 259, 260. Brownell, 473. Buchanan, 289. Burns, 34S. Eddy, 571. Estell, 409, 508. Myers, 576. Reed, 33. Myrover v. French, 214. N. Xary v. Merrill, 39. Natchez v. Minor, 69. Nathan v. Arkright, 25. National Bank v. Conway, 256. Eldridge, 153. Natoma Mining Co. v. Clarkin, 33. Xagro V. Ware, 436. Nave V. Berry, 313, 345, 362, 370. Neale v. Xeale, 8. Xeave v. Jenkins, 10. Neelson v. Sanborn, 4. Xeesom v. Clarkson, 480. Neff's Appeal, 54S. Neligh v. Miehenor, 413. Xellis V. Lathrop, 388. Nelson v. Everett, 443. Ferris, 471. Hall, 103. Lee, 486. McGiffert, 548. Pub. Admr., 549. State, 103. Thompson, 387. Neppoch V. Jordan, 304. Nesbitt V. Cavender, 416. Neufville v. Stewart, 4. Nevada Bank v. Bryan, 28. Nevins V. Gourley. 571. Nevitt V. Bacon, 497. Nevlin v. Osborn, 65. New V. Potts, 153 Newbold V. Comfort, 370. Newby v. Rogers, 6. Neweil V. Mayberry. 20. Newell, 36. Sanford, 329. Newhall v. Burt, 4U. Savings Bank, 478. N. E. .lewelry Co. v. .Merriam, 473. New Hampshire Co. v. Xoyes, 25. New Hampshire Land Co. v. Tllton,249. New Haven S. Nicholas V. Kershner, 526. Nichols V. Baxter, 452. Fearson, 449. Johnson, 4, 18. Lee, 472. Luce, 93. Niehol, 9. Reynolds, 274, 289, 415. Stewart, 261. Suncook Mfg. Co., 104. Toney, 415. AValter, 175 Nicholson v. Caress., 8-5, 114. Nickerson v. Saunders, 4. Nightingale v. Hidden, 33, 1.36. Withingtoii, 25. Niles V. Commissioners, 449. Nimmons v. Westfall, 571. Nixon Y. Cobleigh, 70. Hyserott, 235. Noble V. Enos, 524. Googins, 173. Noble, 36. Noell V. Graves, 445. Nolen V. Gwyn, 2S4. Norcross V. Norcioss, 411. Norcum V. Droencli, 1.^4. Nordyne Co. v. Gery, 452. Norman v. Burnett. 146. Wells, 347, 348, 349, 376, 377. Norrls v. Harris, 532. Hill, 104. McCanna, 36. Wait, 25. Northampton Bank v. Balliet, 470. Northtop V. Hoiiiif , 8. Northup V. Brehiii.-r, 273. Northwestern Mut. Life Ins. Co. v. Nelson, 28. Norton v. Bahcock. 177. Jackson, 170. Webb, 453. Norvell V. Walker, 180, 196. Norwich v. Hubbard, 401. Norwich Fire Ins. Co. v. Boomer, 452. Noj'es V. Clark, 445. Johnson. 9. Nunemacher v. Ingle, 485. Nunnely v. Doherty, 31. Nunnery V. Cotton, iS. Nute V. Nute, 2S1. Nutt V. Norton, 551. Nutting V. Dickinson, 4. Herbert, 75, 280. Nye V. Lowry, 15. o. .Oakey v. Cook, 9. Oatman v. Fowler, 271, 278. Oats V. Walls, 274,289. Obermeyer v. Nichols, 174. O'Brien v. Gaslin, 2."). Wetherell, 122. Young, 181. O'Connell v. Bryant, 104. O'Conner v. Kempt, 26, 3o. Shipnian, 451. O'Daniel v. Crawford, 37. Odell V. Buck, 26. Montross, 415, 470. Odenbaugh v. Bradford, 416. O'Donald v. Constant, 36. O'Ferrell v. Simplot, 260,264. Ogden V. Walti-rs, 2t)0, 501. Ogle V. Ship, 479. Ohio Life Insurance Co. v. Ledyard, 287. Ohio Life Insurance and Trust Co. v. Reeder, 496. O'Keefe v. Kennedy, 170, 382. O'Kelly V. O'Kelly, 225. Old Colony K. Co. v. Kvans, 6. Olds V. Cummings, 472, 510. Oliver v. Houdlet, 25. Piatt, 285 Stone. 204. 212. Olmstead v. Mies, 364. Olmsted v. Klder, 70. O'Meara v. North American, etc. Co., 70, 190. O'Neal V. Farr, 554. O'Neil V. Capelle, 415, 416. O'Neil's Seixas.471. O'Neil's Will, 542. O'Neill V. Chandler, .36. Ord V. McKee, 471 Ormsby v. Ban-, 486. Tarascon, 511. Orndorff v. Huuimur, 542. Orr V. Hadley, 102, 407. Orrick v. Boehm, 571. Osborn v. Cook, 542. Phelps, 9. Osborne v. Moss, 37. Osgood V. Abbott, 124, 127. Breed, 600. Frankbn, 153. Thorne, 36. Osterhout v. Shoemaker, 26, 220. O'Sullivan v. Overton, 4. Oswald V. Fratenburgh, 357, 375. Gilfei t, 358. Otis V. Spence, 37. Smith, 5^2. Ottawa Northern Plank Road Co. v. Murray, 445. Ottenhouse v Burlson, s. Otto V. Dohy, 207. Oulds V. Sansoni, 231. Onsby v. Jones, 98. Overman v. Kerr, 218. Owen V. Ellis, 155, 585. Norris, 260. Perry, 21. Switzer, 155. Owens V. Lewis, 3. Oxley V. Lane, 571. Pack V. Gaither, 9. Packard v. Ames, 126. Kichardson 4. Padfleldv. Padlield, 650. Page V. Esty, 354. Page, 182. Palmer, 126. Pierce, 471. Robinson, 450. Waring, 278, 280. Paige V. O'Neil, 36. Sherman, 79. TABLE OF CASES. Iv Paine v. Benton, 444. French, 471. Wilcox, H. Pallexfen v. Moore, 14o. Palmer v. r>utler, 497. Call, 44;.. Edwards, ;U.^. Mead, 5(12. Miller, '2.5. Richardson, s. „„ Pancake v. Cauffman, 416. Pardee v.Lindley, 468, 471. Paris V. Ilulett, 502. Parishv. Murphree, 3-. Whitney, 167. Park V. Bates, 177. Mears, 202. Pratt, 24. arker v. Baxter, 451. Brown, 165. Cane, iSl. Cole, 534. Dacres, 476. Hill, '212. Kane, 20. Nichols, 56. Parker, 582, 600. Smith, 173. Parkhurst v. Cummmgs, 4J1. Van Cortland, 4, 0, Parkman v. AVelch, 37, 492. Parks V. Hall, 415. Willard,281. Parmelee v. Simpson, 212 28s. Parmenterv.>IcDameU21. Webber, 33j. Parmer V. Parmer, 480. Parret V. Shaublaut,2a. Parrott v. Barney, -.W. Parshall v. Shirts, 20. Parsons v. Boyd, 2iO.^ Xotrsle, 4i (. WelTes; 469, 470, 485. Winslow, 535. Partridge v. Hatch. 165. Partridge, 4,0. Smith, 23l. Pasey v. Bullitt, 31. Past V. Kearney, ^^8, 369. Patapsco Guano Co. \ . Mornaon, lo*. Patmor v. Haggard, 4. Paton V. Rogers, 9. Patrick v. Sherwood, 296. Patridge v. Hatch, li5. Patten v. Casey, 37. Deshow, .^.46, 349, 6ii. Moore, iSU. Pearson, 514. Thornton, 33. Patterson v. Arthurs, 167. Carneal, ^3• Cunningham, 9. Donner, 443. English, 540. Johnso_n,443. Suen.5V205,212,213. Yeaton, 2. Pattison's Appeal, 3. Pattison v. Horn, 415. Patton V. Deshoii,3.b. Wagner, 4^. Patty V. Pease, 492. Paul V.Fulton, 284. Paxon V. Lefferts, 168. Paxton V. Harrier, 492. Payne v. Avery. 427- Bettisworth,li4. Howell, 500. . Sadtler, 104. Co., 155, 408, Payne v. Patterson, 414. ^ Pavey, 28n. Payne, 6o4. Sale, 116. Wilson, 425. Peabody v. Fenton, 373. Hewett, 68. Peabody Heights Co. v. Pearce v. Hall, 444. Morns, 4(8. Savage, 485, 491. Wilson, 415. Pearsall v. Kingsland, 472. Pearson v. Seay, 41(. Pease v. Allis, 542^ Kelly, 42.. Lawson, 194. Pilot Knob Iron 515. Pecare v. Chouteau, 164. Peck's Appeal, 485. Peck v. Denniston, m. Uensley, lov^.20o^^^ Penny v. Cormithe,_l8. Penrose v. Griffith, 73. Pensoneauv. P«lha.m,4u. Pentzv. Stanton, 24h. People v. BostwRk, 226. Gillis, 304. Henderson, 104. Kevser, 490. Organ, 18. I'lumstead, 183. Robertson, 3(19, 380. People of Vermont V. Society, l-.- People's Bank v. Mitchell. 3ft.. Pepin County v. Prjndlo, 124. Pepper v. Carter, 3^. Peques V. Mosby, 1-4. Perdue v. Aldndge, 249. Montgomery, -33. T>cvine V. Periue, 549. PeSnsV. Dibble 401.483. Hadsell.b. Pitts, 485, 491. Sterne, 471. Strong, 291. Webster, 173. Perminterv. McDaniel,18. Ivi TABLE OF CASES. Perre v. Castro, 483.^ PeiTin v.Lepper, H... Heed, 271. Periine v. Cheeseinan, 18i), 195. Perry v. Grant, j'f. ^_ ^ Price, 4.^, 0*3, <"> '^, ^^1- Peter v. JJeverly, 153. p ,^j 4,0. Peters V. Jamestown Bridge LO.,4a,4(-. Siers, 571. SpiUnian. 5^4. Peterson v. Clark, 414, 429, 4o0. Leik, 2o. Petitionof Young, 119. Pettee V. Case, 496. Hawes. lis. Pettengill v. Evans, 407. ISIather, 491 Pettibone v. Griswold, 444. Pettit V. Fritz, 3.S. Pettmun v. Sofley, 2si. Petty V. Dill, 485. Grisard, 27. Petty, .S7. Peugh V. Davis, 41fi, 4ib. Peyton v. Ayres, 496. __ Pfofiv. Golden 3,(n3inneo v. Goodspeed, iJ'O- ,,- Pioneer Gold Mm. Co. v. Bakei, 41- Piper v. True, o. Pippin V. Ellison, 580. Pitcher v. Barrows, 444. _ Pittingill v. Devin, o9, 2^d. Pitts V. Cable, 417. _ Parlser, 42,. Pixley V. Bennett, ISl. Plato V. Roe, 414. Piatt V.Brown, 59. McClure, .509. Playter v. Cunningbam, 3o2. Plimpton V. Ins. Co , io-. Plumb V. Tubbs, 122. ^ lymouth v. C>irv.-r, 162, lb*. Polack V. Pioche, 362. Poland v.O'Conner, 8. Polden V. Bastard, 93. Polk V. Cosgrove, 282, 28.t. Paris, 115. Reynolds, 4(^3 Pollard V Pollock y Pollock V I. ,1 < ocke, 287 Hagan, 105. Kibbe, 105. Lively, 271. Shaeffer, 348. Glassell,541,.542. or^^xiuv^ . . Morris, 104. Pomeroy v. Ainsworth, 44.i. Bailey, 3(. Pomroy v. Stevens, 280, 283. Ponce V. McWhorter, 8. Pond V. Bergh, .533. Ponton V. Ballard, 280. Poole V. Buffum, 541. Poole V. Beutley, 304. Gerard 183. Pooley V. Webb, 33. Poor V. Robinson, ado. Burrage, 512. Durant, 445,451. Henry, 271. Jacobus, 471. O'Hara, 93. Poplin V. Hawke, 600. - ■ • V. Foley, 9. City of Dubuque, 42/. Cole, 364. Hill, 4S5, 491. Merrill, 3S2. Noves, 16i. Perkins, 485. Sevey, 281. Smith, 444. Williams, 319. . v.....^- ■ ■ Bayless, 246. Potter V. Chaplin, 34. Dooley, 289'. Gardner, 461. McDowell, 37, 287. Mercer, 3(t4. Stevens, 471. Taylor, 166. Titcomb,532. - Delaware Water Power Co., 876. Plaisted, 483, 484. Pope Popplein Porter v. Posner v, Potts V, TABLE OF CASES. Ivii Powe V. McLeod, 32. Powell V. Clark, HS. Hopkins, 44a, 509. Monson Manufacturing Co., 1)5. Pruden v. Paxtoi),o71. Prutsuian v. Baker, 205, 211, 214. Pry V. Pry, 271. Pryor v. Wood, 472. Pugh V. Good, 8. Holt, 415. Pullen y. Shaw, 19. Purcell V. Hannibal & St. Joe R. R. Co., '. 167. Purcell V. English, 3,5:-!. 1 Purdie v. Whitney, 458. i Purdy y. Huntington, 470, 473. ] Pursly y. Hays, 25. ruiNiarv. Reese, 559. Putnam v. Bond, li)l. PutKel V. Van Brunt, 87, 92. Q. Quackenboss v. Clarke, 349. Quartermous v. Kennedy, 476. Quimby y. Bovd, 250 Quincy y. C, B. & Q. R R., 438. Quinn y. Champagne, 4. R. Rabsuhe y. Lack, 79. Race y. Weston, 9, Rackleff y. Norton, 257. Rader y.Neal, 9. Rafferty y Longee, 4. Ragsdale y. Robinson, 21. Railroad Co. y. Elliott, 504. Schurmeir, 103. Rainbolt v. East, 37. Raines v. Walker, 204. Rake y. Lawshee, 27. Rakestraw y. Rakestraw, 154. Ralls y. Graham, 2SG. Ralston y. Hughs, 451. Ramsey v. Merriiini, 512. Randall v. Bradley, 477. Ghent, 78. Hazelton.oU. Rick, 387. Vroom, 36. Randolf y. New Jersey West Line R. R . Co., 438. Randolph y. Kinney, 164. Rank y. Hanna, 182 Rankert v. Clow, .^.97. RankiQ v. Ingwersen,353. Maior, 470. Miller, 278. Warner, 74. Ranlet v. Cook, 354. Ranney v. McMullen, 466. Rantin v. Robertson, .352. Rapier y. Gulf City Paper Co., 417. Rdthbone v. Clarke, 512. Dyckman, 570. Ratbbun y. Rathbun, 208. Rathelly. Grimes, 36. Ratliff V. Mars, 82. Rayerty y. Fridge, 265. Rawson V. Hall, 443. UxbridKe, 126. Ray V. Walton, 542, 549. Raybold y. Raybold, 146. Raymond y. Coffey, !i7. Raymond, 164, 165, 171. Raynor y. Selmes, 479. Wilson, 386. Rea y. Minkler, 168. Reade y. Livingston, 37. Reader v. Helms, 4. Ready v. Kcarsley, 67, 136. Noakes, 9. Reagan y. Hadley, 493. Reasoner y. Edmondson, 165. Reayis y. Reavis, 221. Rebhau y. Mudler, 557. Recknagle y. Schmez, 8. Rector, etc. v. Higgins, 358. Redd V. Hargraves, 570. Reddlck v. Gre9sman,408. RedfleUl y. Utica .t S. K. K., 308. Redman y. (irsiham, 2i(). Redwine v. Brown, 162. Reece v. Allen, 45s. Reed v. Cosale, 271. Cure, 36. Iviii TABLE OF CASES. Reedv. Douthltt,205, 213. Kemp, "iol, •^•V2, 271. LansUale, 47l». Miiibli-, -170. Morrison, 182. Pierce, 17*5. Reed, Si, 415. Watson, 541, Woodward, 540. Reeder v. Barr, 74. Reese v. Cochran, 312. Medlock, 237. Mct,>uilkin, 170. I'roUatc e'ourt, 548. Reeve v. Crosiiy, 542. Reeves v. Scully, 472. Websttr, :«. Reichart v. MeClure, 287. Reid V. Borland, 547. Reilly V. Chouqiiette, 155. Reinieman v. Kobb, 472. Reiuickei- v. Smith, 3ii, 31. Reuisen v. Brinckerlioof, 542, Conklin, 83t!. Renfro v. Adams, i'.n. Harrison, 214. Renond v. Daskum, 354. Re Phillips, 542. Repp V. Repp, 427. Revalk V. Kraemer, 183. Re wait V. Ulrieh, 571. Rex V. Creel, 170 Longuor, 16S. Revmond v. Hillhouse, 576. Revnal, Ex parte, 438. Revnolda v. Caual »t Banking Co. of > 0.,411. Kingsburv, 265,271. Rowley, •.i36. Vilas, 7'J. Rhine v. Ellen, 79. Robinson, 213. Rhode V. Loutham, 2.30. Rhodes V. Parker, 4116. Vinson, 54'J. Rice V. Bro-wn 304, 458, 508. 15. .t W. I{. Co., 339. Cribb, 443. Dudley, 3-57. Grove, 246. Peet 3. Richv. Robeits, 282. Zeilsdorff, US. Richard v. Bent, 164, 166, 167. Boiler, 194. Chace, 183. Richards v. Holmes, 513, 514. Richardson v. Barrick, 415. Batts, 364. Briglit, 25. Canibriilge, 486. Dorr, 164, 165, 166. Hocktnliull, 473. Palmer, '.11,95, 118. Pate, 27. RidgeJv, 422. Stoddcr, 136. AVoodbury, 416. Richinan v. Lippincott, 58. Richmond v. Aiken, 497. Til>bels,33. Ricketson v. Richardson, 444. Riddell V. Johnson, .5.59. Riddle v. Littlefleld, 361. Riddlesburg, etc. Coal Co. v. Rogers, 101. Ridgeway v. Holliday, 173,285. Ridley v. McNairy, 8. Riecke v. Westenhoff. 183. Riehl V. Bingenheimer, 136. Riggin V. Green, 26. Love, 114. Riggs V. Boylan,2S9. Fisk, 25. Rigler V. ClouVl. 212. Rigney v. Lovt-joy, 471. Riley V. Chouq\iette, 197. Minor, 230. McCord,502. Rilling V. Thompson, 443. Rindskophf V. Farmer's Loan Co., 168, 170. Ring V. Burt, 183. Rippy V. Gant, 26. Ritter V. Phillips, 465, 466. Rivard v. (iisenhof, 115. Rivard v. Walker, 205, 209, 214. Roach V. Wadham, 156. Robbins v. Cookendorfer, 181. Eaton, 25. McMillan, 73. Sackett, 409. Webb, 162. Roberts v. Cooper, 24. Daw, 3S2. Fleming, 478, 480,514. Forsythe, t5. Jackson, 222. Littlefleld, 477. McMahan*416. Pillow, 194. Swearingen, 213. Welch, 486, 497,541,542. Wiggin, 25,310. Wilcoxsen, 27. Robertson v. Canibell, 417. French, 15. Hay, 18. McAfee, 74. Stark, 444. St. John, 354. Robeson v. Hojnbak r, 2. Robie V. Smith, 3sl. Robins V. Swain, 473. Robinson v. Clark, 37. Cook, 484. Cropsey, 417. Davenport, 183. Eagle, 33. Farrelly, 415. Gould, 204, 214. Harl)(.)un, 174. Holt, 37. L'Kngle,3o7. Loomis, 443, 445. Mauldin, 236. Meyers, 19. Perry, b70. Randolph, .33, 581. Robards, 36. Ryan, 479, 480. Sampson, 493. Schly, 520. Smith, 542. Thrailkill, 3. United States, 5. Urquhart, 426. Willoughby, 415. Robsuhl V. Luck, 79. Roche V. Farnswoi til, 512. Roekhill V. Kockhill. 486. Rockwell V. Brown, 78, 79. IIol)l)V, 426. Rockwood Manf. Co. v. Master, 36. Rodes V. Bronson, 484. Rodgers v. Burchard, 278, 284, 285. Roe v. Mound, 273. Moore. 36. Meal, 278. TABLE OF CASES. lix Roehl V. Ilauniesser, 4. Runyan v. McClellan, 2s7. Koebuck v. Dupiiy, 173. .Mersereau, 401. Uogan V. Docking, SoS. Rupp V. Eberly, 571. Kogan V. Wiilker, 415. Ruppe V. Stemboche, 31. Rogers V. Hlackwell, 26. Rush V. Lewis, 152. Boynton, 388. Russ V. Perry, 166, 167. JJurchard, '286. Steele, 170. Carey, 207, 209, 214. Russell V. Baptist Theological Union, Cox, a. 263. Cross, 472. DeGrand, 390. Diamond, 542. Duflow, 461. De Forest, 483. Erwin, 309. Eagle Fire Co., 53, 56, 116. Fabyan, 388. Evans, 36. Hammond, 37. Haskins, 281. Jersey Co., 105. HerroD, 480. Kinney, 465. Hillhouse, 49,,59,77. Rumsey, 181. lluniplireys, 315. Schurmier, 5. Jones, 279, 280, 281. Southard, 416, 417. ^IcKeuzie, 37o. Sweezev, 280. Kenshaw, 183. T. & B. R. R., 33. Smith, 582. Topping, 34. Traders' Ins. Co., 483. Waite, 472. Wiley, 283. White, 472. Woody, 182. Whitely, 615. Rollins V. Moody, 357. Butgers v. Hunter, 354. Riley, 53, 78, 136. Ruth V. Ford, 78. Rollwagen v. Rollwagen, 526, 540. Rutherford v. Rutherford, 542. Roney v. Moss, 260. Tracy, 108. Rood V. Winslow, 443. Williams, 511, 514. Roof V. Stafford, 25, 310. Ryan v. Carr, 249. Rooney v. Michael, 27. Davis, 9. Roosevelt v. Heirs of Fulton, 429. Ryder v. Jenny, .^54. Thurman, 571. Ryers v. Wheeler, 574. Root V. Wheeler, 458. Ryerson v. Chapman, 170. Rootes V. HoUiday, 221. Rymes v. Clarkson, 540. Roper Hus. and Wife, 32. Roper V. Roper, 676. s. Rose V. Brown, 37. City of Bridgeport, 448. Daniel, 25. Sacheverell v. Frogg;itt, 330. Kimball, 470. Sadler v. Anderson, 213. liose, 5.i(). Sage V. Riggs, 443. Rosenthal v. Griffin, 260. WUoox, 4. Rosevelt V. Bank of Niagara, 472. Sager v. Tupper, 484. Ross V. .\darus, 45. Salem v. Edgerly, 467, 481. Denioss, 514. Sales V. Smith, 613. Dysurt, 84, 173. Salisbury v. Shirlej', 375. Kennison, 466. Salmon v. Bennett, 37. Mitchell, 497. Vallejo, 164. Whitson,427. Salter v. Jona;^, lu4. Rossetter v. .'^"^-*^°''^' Dozier, •')42. Lyon, 467. Peters, 20. Saxtonv. Hitchcock, 41.. 8avlesv. Siinth,51-i. Scanlan v. I^wv, l^i. Wright. 33. Scarle V. Sawyer, 407. Sch'ide V. Besainger, 416. SclKKlel V.St, Martin 443. Schafer v. I'^i'^^'^Athon ''^GO. Scharfenburg v. bibhop, ~w. Schell V. ^t«>»'i-^l^,.,,,nan 449. Schernierhorn y. 1^1]'"^^' Schiffer V. Feagin, 443 Schlatrev. Greand.4b5. ^^•'^^^^■^"•Smm car CO., 27, 260. Schuieling V. Knesel, o, 9. Schmidt v. O pie, 36. iel--)cerv.Schmid^^^O.^_ Schneider v. Xorris, 6. Schnitz V. ^Ic^^'i^^'C'estead Co., l&i Scholieldv. Iowa Homestead school District v.^u.a in. CO 236. school committee v. Kesler, 186. Schoonmaker V. Taylo I, 115. Schramm v. *^''»tr> , iM'- Schroederv.Gm^ney,^.S.. Schultzv. Moore, 2.1. Schuttv.Large,2..t. Schuyler y. levy e, 3^-^ >,^.i,,^oele, 173, Schuylkill, etc. u. u. > . SchuvlkiU Co. V. Thoburn 487. Icituate V.Hanover. 146, 414. Scott v. Bucbanan, 310. Featherston, 46o. Frink,476. Gallagher, 2o8. Henry, 414. Kiikendall,l"», I'"- Leather, '271. Scott, 163. Simons, 183. Tiviss, 165. Turner, 471- Tyler, 124. White, 3. Scranton v. Booth, 3i9^ Scrib„erv.nolmes,^16.^^. Scrugham v. ^Vood, 2to, 213. Seabiook V. Moyer, 3*9. Seabury v. Brewer, 5.6. Sears V. Brink, 4. Dixon, lfe3. Bussell, .>35. Smith, 4'.'7. ll^^^!ci-^'no^;;i^beck, 165 |||,^iSitV.c;rrington.58o. Seemesv. Seemes,o4y. Seguine v. Seguine, 542. Seltziugerv. Weaver, 1-3. Sellers v. Sellers, 15. Seruon v. Terhune, Seton V. Slade^ 9. Seuzeneau v. ^a "> - «^;. Severance v.Gnmh,4.«. Severy v. C. P. U- '^ . \p- Sewellv. Haymaker, 2.. sexton V. Anderson, 36. \Vlieaton,36, 3.. Sevfert V. Bean, 366. Seymour v.Delancej, 9. Shackelford v. Hall, 125. Shaddle v. l>isborough 9. |^lS^v^:^ly^^''etc: Mining CO., Sball V. Biscoe, 427. Shandv. Hundley, 3.. ^birkev V. snarkej, *>''•-- luaron'lronCo.v Erie 126. Sharp V. Barker, 443, 451. Kmmett, i. Hamilton 260. Sharpev.«)rme,200,2o9 260. Sbattuck V.Hastings, 124. Shawv. Krskine,414 Farnswortn, .-so-i, .-sia- (iray, 502. Havward,22D. Loud. 67,496. Millsops,36. Norfolk Co. R. «■• CO., 00- Poor, 2.V2. H'vnV^ v'uik V. Boston, 357. Shawment ^ at. i^an"- ^ • "^ Shays v. Norton, 41o. Sheafe v Gerry, 444. Shearer V. Banger 16.. Sheehanv. Davis, 19j. Sheets v. Giubbs, 5- 1. Selden,84, 380, 38^. Shelby V. Hearne, 348 Sheldon V. Stryker, 260. Shelley v. Soothe, 36. Shelley's Case, 115. Sheltonv. Armor, 180, 195. Codinan,.^4b. Pease, 173. Shelton's Case, 221. Sbepardv. camel, m^^^ Shepherd v.Bevin,^..^^^ May, 464. McClain, 4S3. >"abors,675. Shepherd, 444. Sheppardv.Harrison^21.^^^ Sherburne v. Sli^iw, 6. Sheridan, -f-e-.n*--. ,„„ Sheridan v. N\ eleh, 470. Sherman v. CMiampl. Tr. Co., 388. Dodge, 136. Hogland, 32. Sherman, 491. Williams, 327 Shermerv. Merrill. If' Sherwood v.Klslow,4S. Ueade, 511. Wilson, 491. Shewalter v. I'ii'^^r.'jJ'^^n 476, 483. Shields v. T-oz^^'^'ji '^^ ^' ' Tranijr.ell. 9. Shiffner V.Gordon, 390. Shillaber v. Kobinsou,_415. Shinuv. Fredericks, 4,0. Roberts.m. Shirleyv.Ayers, 226,22.. TABLE OF CASES. Ixi Shirley v. Fearne, 31, 200. Shively v. IMack, 4. Slowey V. .McMurray, 417. Slutz V. Desenberg, 417. Shook V. I'rtte, 1U3. Small V. Edrick, 3>50. Shootz V. Uiown, 76. Smalley v. Lawrence, 33. Short V. Coulee, 260. Smiley v. Fries, 204. Shotts V. I'oe, 576. Gambill, 549. Shotwell V. Ilitrrison, 284,288. Van Winkle, 369. Slirlener's Appeal, 571. Smith V. Allen, 76, 210. Sluibeit V. Stunley, 416. Arnold, 4. Shubiick V. Salinoud, 161. Austin, 478. Shuetz V. Hailey, -JBo. Bank, 49. Eggeis, 5. Banie,122. Shuler v. IlaicJiii, 465. Bell, 571. ShultzvT .Moore, 252, 258. Blaisdell,3S2. .Morgan, 36. Burnham,31. Shuunvay v. Collins, 382. Burtis, 31.8. Shurtleff v. Franeis, 470. Cannell, 448. Sieard v. Davi.^, 213. Cremer, 425. Sidenbuig v. Klj;, 451. Crooker, 21. Sidle V. Maxwell, 279. D all, 290. Sid well V. Jliruey, 257. Devlin, 386. Sieiners v. Schroder, 512. Dickinson, 230. Sigfried v. Levau, 21. Dixon, 170. Sigourney v. INIunn, 74, 277, 281. Dunton, 2fS5. Sillers v. Lester, 443. Elliot, 26. Silloway v. Brown, 453. Evans, 25. Silver Lake liank v. North, 443. Garden, 260. Silverthorne v. MeKiuster, 154. Goodwio, 45(J. Siiumous V. Anderson, 183. Hall, 279. Fuller, 438. Handy, 182. Simmons, 213, 554. Hollenbeck, 146. Spratt, 67. Howell, 6. Thomas, 327. Hunt, 249, 259. Simms v. Hervey, 18, 21. Kelly, 470, 479, 483. Read, 271. Kerr, 345, 363. Simon v. Kaliske, 271, 289. Lambeth, 283. Simonds v. Turner, 358, 37G. Leiberling, 32. Simons v. Farreu, 360. • Lowry, 491. Simouton's Estate, 224. McCampbell, 167, 176. Simouton v. Gray, 407, 473. McGowan, 119. Thompson, 101, Moore, 471. Simpson v. Graves, 36. Niver, 387. Margltsou, 5. Otley, 4S3. McGlathery, 227. Perry, 230. Moutgomerv, 264. Pollard, 59. Mundee, 193, 249, 251, 252, Porter, 472. 271. Prewitt, 103. Robert, 443. Provin, 478. Smith, 571. Putnam, 361. Simsv. Baldwin, 25. Roberts, 473. Dawe, 31. Rowland, 427. Hammond, 471. Scribner, 170. Hampton, 3S0. Smith, 33, 37,582. Riekets, 32, South Royalton Bank 226. Smith, 25. Spnigue, 167, 170. Sinclair v. Jackson, 234, 309. Stanley, 182. Singleton v. Scott, 513. Starr, 472. Sisters of Charity v. Kelly, 541. Stigleman, 389. Sittou V. Sliipp, S. Strong, 165, 175. Skaggs V. Emerson, 389. Swan, 473. Skerritt's Estate, 540. Vincent, 483. Skinner v. Baker, 226. Wait, 649. Cox, 442. Weed, 18. Davton, 9. Whitfield, 36. Fulton, 261. Yule, 2^0. Smith, 477. Snavely v. Pickle, 416, 443. White, 9. Sneeil v. Ewiug, 600. Wood, 585. ^Varnlng, 31. Skipwith V. Dodd, 2. Snell v. Iron Homestead Co., 17 7. Slade V. Etheridge, 104. Mitchell, 9. Slater v. Rawsou, 162, 164,165. Snider v. Lackenour, 208. Slaughter v. Cunningham, 25. Snodgrass' Appeal, 30. Stephens, 549. Snodgrass v. Ricketts, 284. Slee V. Manhattan Co., 510. Snow V. Orleans, 24. Sheer v. Bank ot Pittsburg, 477. Snowden v. Pitcher, 414. Slingerland v. Sliugerland, 8. Snyder v. May, 3. Sloan V. Coolbough, 509. Robinson, 406. Sponablc, 231. Lawrence Furnace Co., 118. Wolford, 3. Sloat V. Bean, 445. Society v. Varick, 69. Ixii TABLE OF CASES. Somers v. Pumphrey, 26, 205, 221, 311. Scluiiit, 170. Skinner, UV.). Soinersworth v. Roberts, 415. vSouiersworth Siivings Bunk v. Roberts, 444. Sonfield v. Thompson, 260. Soper V. Gnernspv, 443. Soule V. Albee, 444. Southard v. Central R. R., 126, 127. Southbridge Sav. IJiink v. Mason, 438. South Carolina v. (ieorgia, 105. Southerin v. Menduni, 407, 471. Southerland v. Hunter, 25i5. Stout, 16 .Southern Life Ins., etc. Co. v. Cole, 224. Southworth v. Smith, 484. Soutter V. Miller, 424. Sowverbye v. Arden, 205. 211, 221, 226. Spader v. Lawler, 443. Spalding V. Conzelnian, 8. Halleiibeck, 76. Sparhawk v. Sparhawk, 542. Sparkman v. Place, 37. Sparrow v. Hardcastle,550. Hovey, 258. Speake v. United States, 18, 21. Spear v. Fuller, 335, 337, 382. Spears v. Sewell, 26. Speck V. Riggin, 283. Spear v. Evans, 279, 291. Hadduck, 515. Spence v. Dunlap, 37. Steadmau,416. Spencer's Case, 350. Spencer v. Ayrault, 449. Carr, 209. Field, 7, 246. Godwin, 32. Marlborough, 152. Pierce, 4*9. Sperry v. Sperry, 386. Spicer v. Ayres, 37. Spirett V. Willows, 37. Spitts T. Wells, 4S. Spitznagle v. Vauhesoch, 260. Splawn V. M-irtin, 3'i. Spofford V. Hobbs, 239. Weston, 281,283. Sponable v. Snyder, 283. Spoonemore v. Cables, 542, 549. Sprague V. Baker, 170. Graham, 472. Springer v. Bartle, 285. Kleinsorge, 4. Springfield Savings Bank v. Society, 425. Springle v. Shields, 9. Springstein v. Schermerhorn, 384. Staats V. Bigelow, 508. TeuKyck,177. Stack V. Sigelkow, 70. Stackbridge Iron Co. v. Hudson Iron Co. 118. Stackpole v. Arnold, 7, 245, 246. Robbins,79, 485. Stacy V. Bostwick, 388. Stafford v. Lick, 238. Koof , 310. Stafford, 76, 78. Van Rensselaer, 427. Stagg V. Eureka Tanning Co., 388. Green, 566. Stahl V. Berger,21. Stalworth v. Blum, 4.54. Stamland v. Hopkins, 9S. Stanard v. Barnum, 571. ?:idridge, 16.5. Stanclift v. Norton, 445, 451. Stanhope v. Manners, 445. Stanley v. Greene, 88, 90. Snyder 36. Valentine, 493. Stanton v. Button, 260. Miller, 223, 226. Stantons v. Thompson, 473. Stanwood v. Dunning, 182. Stappleton v. Stappleton, .J59. Stark v. Coffin, 104, 484. Starkweather v. American Bible So- ciety, .S3. Martin, 180. Starr v. Ellis, 383, 473. State Bank v. Whittle, .36. State V. Boston, 33. Clough, 479. Evans, 36. Joj-ce, 571. Martin, 376. Plaisted, 25. Ragland, 407, 411. Wilcox, .'541. Wilson, 118. State of Connecticut v. Bradish, .364. State of New Jersey v. Thatcher, 224, 225. Steadman v. Guthrie, 4. Taylor, 4 Stearns v. Godfrey, 127, 128. Hubbard, 2. Swift, 181, 182. Stebbins v. Duncan, 274. Hall, 464. Merritt, 197. Wolf, 177. Steel T. Steel, 60, 415, 442. Steele v. Boone, 289. Carroll, 407. Mansell, 273. Miller, 200. Steeple v. Donning, 24. Steere v. Steere, 146. Steiner v. McCall, 443. Stelle V.Andrews, 449. Stembridge V. Stenibridge, 9. Stephens v. Allen, 416. Graham, 18. Huss,208, 211 111. Mut. Fire Ins. Co. 452, 477. Riuehart, 211. Sherrod, 182. Sterling v. Feet, 177. Steven's A^speal, 427. Stevens t. Brown, 271. Buffalo, etc. R. R. Co., 443. Church, 465. Cooper, 481, 492. Doe, 260. Hampton, 249, 252, 271. Hatch, 205. Owen, liil. Robinson, 37. Stevenson v. Adams, 491. Black, 465, 471. Buxton, 9. Cloud, 249. Crapnell, 224. Maxwell, 9. Steward v. AVinters, 360. Stewart v. Aclev, 36. Barrow, 401, 409. Beard, 200. Crosby, 483. Dailey, 36. Drake. 166,170,177. Flint, 26. Hadley, 170. Hall, 278. Ilarriman, 542. TABLE OF CASES. Ixiii Stewart v. Iglehait, 36. Jackson, 37. Long Island R. R, Co., 369. ."\hickey, 183. Matthews, '249. McSweeny, 27L Redclitt, 205. Weed, 208, 201), 214. Stickey v. Jordan, 449. Stiles V. Probst, 18, 206. ■ Stillwell V. McDonald, 2S7. , Stimiuel v. Waters, 375. Stinchcoinb v. Marsh, 232. Stine V. Wilkson, 512. Stinson v. Uos-*, 407. Sumner, 181. Stirling V. Stirling, 541. Stith V. Barnes, 574. Stivers v. Home, 'iSo. St. John V. Hnmpstead, 511. Conger, 27'^. Quitzow, 388. St. Louis V. Wiggins' Ferry Co., 206, 213. St. Louis IIosp V. Wegmaii, 541. Stobie V. Dills, 387. Stoekbridge Iron Co, v. Cone Iron Works, 33!t. Stockton V. Willi ims, 24. Stockwell V. Hunter, 357, 389. McHenry, 291. Stoddard v. Hart, 443. Stoddert v. Tucks, 8. Stoever v. Stoever, 414. Stoffel V. Scrocder,59, 285. Stokeley v. Thompson, 449. Stokes V. O'Fallou, 551. Stone T. Bartlett, 283, 286. Bennett, 449. Duvall,211, 220. . French, 205. Houghton, 126. Locke, 470. Montgomery, 263. Myers, 37. Patterson, 407. Stone, 260. .Stoner v. Evans, 449. Storey's Will, 542. Storms V. Storms, 444. Storr V. Wakelield, 443. Story V. Storley, 32. Stotc V. Ruthertord, 32G, 388. Stoutfer V. Coleman, 10. Stoughton V. Pasco, 444. Stout V. Jackson, 177. Stoutenburgh v. Moore, 576. Stovall V. Barnett, 76. Farmer's Bank, 36. Stover V. Kendall, 549, 554. Wood, 493. Stow V. TiffC, 182. Wyse, 73, 236. Stowell V. Bonswell, 8S. Pike, 450. Straight v. Harris, 492. Strange v. Graham, 73. Strauss v. Abrahams, 36. Strawn v. Norris, 20. Stringer v. Northwestern Life Ins. Co., 25. Stringham v. Brown, 509. Stroble v. Smith, 50. Strong v. Blanvhard, 480. Converse, 465. Jackson, 472. Lj'nn, 285. Manufacturers' Ins. Co., 452. Richard, 3Su. Smith, 249,251, 252. Strother v. Law, 458, 510. Stuart v. Baker, 25. Stubblefleld v. Sarle, .357. Stubbs V. Houston, 550. Stultz V. Dickey, 297. Stump V. Deneale, 580. Sturtevant v. Phelps, 176. Sturtevant, 417. Stuj-vesant v. Davis, 382. Hall, 279. Mayor, 382. Succession of Coxe, 17o. Xorton, 486. Suffern v. Butler, 186. Suiter V. Turner, 271. Sullivan v. Sullivan, 542. Tuck, 9. Sulton, Ex parte, 7. Summers v. Roos, 443, 444. Sumner v. Murphv, 36. Williams, 112,173,326. Sunderlin v. Struthers, 73. Sutphen v. Cushman, 416. Suttles v. Hay, 29. Sutton V. Mason, 408. Myrick, 9. Suydam v. Jones, 348. Svvafford v. Whipple, 177. Swain v. Seamans, 5. Swaine v. Periue, 37. Swan V. Hammond, 551. Yaple, 471, 485. Swartliout v. Curtis, 490. Swartz V. Ballow. 21. Leist, 471. Swasey v. Brooks, 164. Swazey v. Brooks, 112. Sweenej- v. Garrett, 336. Sweet V. Brown, 171. Parker, 416. Sweet, 549. Sweetser v. Lowell, 65, 204. Swetland v. Swetland, 414. Swett V. Horn, 483. Patrick, 177. Swift V. Lee, 582. Tyson, 76. Swisher v. Williams, 39. Sykes v. Batee, 8. Sykes, 182. Symms v. Moulton, 5S5. Syracuse Citj' Bank v. Tallman, 4u7. T. Tabb V. Baiid, 24. Tackson v. Clark, 96. Taggart v. Risley, 169. Stanberry, 236 Wade, 478. Talbert v. Dull, 260. Talbot V. Simpson, 260. Whipple, 387. Talcott V. Talcott, 576. Talliaferro v. King, 449. Tahuadge v. R. & S. U. Co., 3. Tallman v. Bresler, 370. Cook, 205. Tantum v. Green, 472. Tarbell v. Tarbell, 580. Tarpey v. lieseret Salt Co., 33. Tartt V. Clayton, 512. Tarver v. Haines, 586. Tasker v. Bartlett, 194. Tate v. Gray, 108. Lawrence, 202. Stoolitzfoos, 265. Tatem v. Chaplin, 348. Tatum, 10, 14, 83. Young, 271. XIV TABLE OF CASES. Taylor v. Baldwin, 4-27. Bassott, -181. Cole, 491. Cornelius, 443. De Bus, i'io. Eatman, 37. Glenny, ?A'i. Harrison, 271. Holter, 177. Kelley, 620. Lowenstein, 280. Luther, 416. Mason, 125. McDonald, 230. Morton, 193. Owen, 848. Page, 472. Porter, 479. Preston, 160. Reid,512. Robinson, 210. Short, 49'2. Sutton, 1'24. Taylor, 29, 542. Williams, 9. Zaniira, 358. Teal V. Walker. 407, 415. Teetshorn v. Hull, 4.S8. Temple v. Johnson, 8. Templeman v. Biddle, 297. Tenant v. Blacker, 230. Tenn3' v. Lumber Co., 197. Terrell v. Andrew County, 289. Imboden, 36. Terrett v. Taylor, 169. Terrio v. Guidry, 491. Terry v. Drabeustadt, 177. Eureka College, 496. llosell, 407,411. Te-wksbury v. O'Connell, 218. Tharp v. Brenneman, 236. Thatcher v. Omans, 32. St. Andrew's, 205. Thayer v. Clemence, 1G4, 166, Mann, 497. Torrey, 109, 464. Turner, y>S. Waples, 388. The Montello, 105. The Mutual Benefit Life Ins. Co. v. Brown, 190. The National Union Bank v. Segur, 162. Tholen v. Duffy, 449. Thomas v. lilackemore, 365. Hammond, 4. HookerColville Pump Co., 358. Jones, 514. Marshfleld, 67. Nelson, 387. Record, 124. Turvey, 88. Von Kapff, 359, 452. AVhite, 675. Wyatt, 69. Thomasson v. Townsend, 443. Thompkins v. Hyatt, 8. Thompson, In re, 548. Thompson's Appeal, 571. Thompson v. Bertram, 466. Bowman, 31. Dougherty, 37. Gibson, 136. Hamilton, 3. Hammond, 205. Hawley, 9. Hawks, 526. Hook, 5.33. Houze, 508. Jamesson, 2. Thompson v. Leach, 384. Lee, 449. Ludington, 675. Lyan, 153. Mills, 32. Murray, 153. Pioche, 388. Rose, 376. Seastedt, 542. Spencer, 59. The Mayor, etc., 308. Thompson, 20, 65, 76, 78,. 126. Wilcox, 101. Wilson, 386. Thornburg v. Jones, 512. Mastcn, 4. Thorndell v. Morrison, 312. Thorndike v. United States, 484. Thorp V. Keoferuk Coal Co., 59, 466. Thornton V. Boyden, 513. lrwin.45S. 490, 491,514. Nat. Ex. Bank, 484. Payne, 3o4. Trammell, 126. Thrall v. Newell, 95. Throckmorton v. I'rice, 289. Thurmun v. Caniei-on, 24, 260. Jenkins, 443. Thursby v. Plant, 348. Tibbals v. Jacobs. 214. Tibbits V. Percj', 353. Tibeau v. Tibeau, 20, 417. Ties V. Annin, 500. Freeman, 4. Tichenor v. Dodd, 464, 465. Tiernan v. Gibnev, 9. Poor, 9. Tiffany v. Glover, 260. Tileston v. Newell, 174. Tilford V. Fleming, 377. Tillman v. Cowand, 252, 271. Tillson V. Moulton, 414, 416. Tilton V. Hunter, 278. Tilton,8. Tilyon v. Reynolds, 388. Timen v. Claffey, 549. Tio V. Vance, 357. Tipton V. Ross, 205. Tisdale v. Conn. Mut. Life Ins. Co., 557. Tisherv. Beckwit.h,206. Titley v. Wolstenholme, 468. Todd V. Jones, 260. Summers, 174. Tomlin v. Dubuque, etc. R. R. Co., 105. Tompkins v. Corwia, 18. Elliott, 174. Tompkins, 496. Wheeler, 208, 212, 214. Tone V. Brace, 84. Toney v. McGehee, 37. Tong V. Matthews, 177. Tooke V. Newman, 512, 550. Tooker v. Sloan, 263. Toomer v. Dawson, 4. Randolph, 411. Toops V. Snyder, 292. Tootle V. Caldwell, 36. Torrett v. Crupps, 6. Torrey v. Bank of Orleans, 466. Bowen, 542. Cook, 500, 510, 512. Wallis, 348. Totten V. Brady, 36. Touchard v. Crow, 59, 256. Toulin V. Dubuque, etc. R. R. Co., 105. Tousley v. Tousley, 444. Tovart v. Hopkins, 513. Tower V. Divine, 47.3. Towfe V. Larrabee, 39. TABLE OF CASES. Ixv Towles V. Fisher, 153. Town of Leruington v. Stevens, 364, 365. Towusend v. Corning, 24<;. Downer, 201. Empire Stone Dressing Co., 443. Fenton, S. Houston, S. Hubbard, 246. Morris, KiS. Ueed, 369. Kiley, 449. Tiekell, '209, 214. Townsend, 557. Ward, le.'). Wilson, 458. Trabue v. McAdams, 37t5. Tracy v. Albany Kxchange Co., 354. Trafton v. Hawes, 55, TS, 116. Transue v. Sell, 104. Trapper v. Harter, 4,38. Trask V. Wheeler, 339. Traveler's lus. Co. v. Vount, 87. Travis v. Morrison, 671. Tyler, 221. Traynon v. Palmer, 160. Trayser v. Trustees Indiana Asbury University, 496. Treadwell v. Reynolds, 204. Tredwell v. Abraham, 36. Trenton Banking Co. v. Woodruff, 493. Trimble v. Coons, 31. Ward, 327. Trimmer v. Heagy, 27. Tripe v. Marey, 4i»7. Triplett v. Gill, 164. Tripp V. Vincent, 460. Troost V. Davis, 480. Tropp V. Field, 382. Trott V. Warren, 36. Trotter v. Erwin, 427. Troup V. Troup, 4, 8. Trubody v. Jacobson, 427. Trucks V. Lindsey, 417. Trull V. Bigelo\v,"288. Eastman, 171. Truluck V. Peeples, 257. Peoples, 288. Truman V. Love, 19u. Trusdale v. Ford, 280. Trustees v. Wright, 427. Trustees of Union College v. Wheeler, 472. Trutt V. Spotts, li;(). Tryon v. ^lunson, 407. Tubbs v. Gatewood, 249, 260. Tucker v. Allen, 211, 220. Ball, 571. Buff urn, 480. Field, 438. Moreland, 25, 310. Tucker, 148. 157, 542. Vandermark, 280. Tuesley v. Kobinson, 36. Tufts V. Adams, 166, 170. Tuite V. Miller, 65. TuUv V. Davis. 260. Tunis V Grandy, 389. Tunison v. Chauiblin, 37, 76, 213, 263. Turbeville v. I{yan, 314. Turman v. White, 115. Turner v. Cook, .'542. Field, 194. Johnson, 3, 423, 480. Kerr, 415. Turner, 29. Tyson, 273. Watkins, 424. Whidden, 2i8. Turnipseed v. Cunningham, 417. Tustin v. Taught, 190, 218. Tuten V. Gogan, 258. Tuthill v. Morris, 484. Tattle V. Dewey, 478. Jackson, 364. Turner, 204, 213. Tuxbury v. French, 571. Twicross v. Fitchburg K. R. Co., 3.58. Twitchell v. City, 7. McMurtrie, 472. Tyler v. Heidorn, 3.39. Moore, 112, 113. Tyler, 551. Tyrell's Case, 137. Tyron v. Munson, 411. u. Ufford v. Wilkins, 106. Uhrig V. Horstinan, .SS. Ulpv. Campbell, 182. Underbill v. Atwater, 443. Morgan, 32. Saratoga R. R., 126. S & W K. U., 124. Underwood v. Birchard, 352. United States v. Arredondo, 124. Bostwick, 345. Hickey, 376. Huckabee, 28. Linn, 19. Nelson, 21. U. S. Trust Co. V. Lee, 33. Union National Bank v. Matthews, 509. Pinner, 472. University of Vermont v. Joslyn,24. Upchurch v. Upchurch,542. Upton V Archer, 21. Utica & Black River R. R. Co. v. Stewart, 257. V. Vail v. Jacobs, 513. Valentine v. Piper, 236. Vallandingham v. Jotinson,25. Valle V.American Iron Mountain Co , 491. Clemens, 173. Vanatta v. Brewer, 382. Van Alstyne v. Van Slyck, 196. Van .\mringe v. Morton, 21. Van Blarcom, v. Kip, 108. Vanborn v. Frick, 7. Van Bramer v. Cooper, 25. Van Brunt v. Mismer, 435. Van Buren v. Olmstead, 480. Vance v. Anderson, 358. Fore, 198. Johnson, 411. Lincoln. 414, 442. Nogle, 33. Schuyler, 257, 260. Van Court v. Moore, 210. Van Cortlandt v. Kip, 554. Van Duesen v. Blum, 31. Sweet, 26, 311. Vandercook v. Baker, 471. Vanderkarr V.Thompson, 5. Vanderkiirr. 173. Vandcrkemp v. Shelton, 470, 473. Vandervoort v. Gould, 312. Vanderslice v. Knapp, 409. Van Doren v. Everitt, 297. Todd, 427. Vandruff v. Rinehart, 541. Van Etta v. Evenson, 21. Van Hauswick v, Wiese, 541. (e) Ixvi TABLE OF CASES. Van Horn v. Bell, 19. Grain, 849. Van llusan v. Kanense, 449. Vankenren v. (Jorkins, 470. Van Ness v. liank United States, 258. Hyatt, 370. Pacard, 297. Vannerson v. Culbertson, 571. Vannico v. Bergen, 49o. Van Nostrand v. Moore, 571. Van Ueynegan v. Kevalk, 183. Van Uiswiek v. Goodliue, 425. Van Hensslaer v. Clarlv, 288. nays, 23, 339. Kearney, 73. Penninian, 387. Secor, 213. Sniitli, 173. Vickery, 05, 204. Vansant v. Alluiow, 471. Van Schaiek v. Tliird Ave. R. R., 376. Van Slyke v. Slielden, 511. Van \'ecliten v. Keater,54S. Van Wagner V. Van Nostrand, 165, 167. Van Wagner, 443. Van Wyck v. Braslier, 30. Seward, 37, Varick v. Briggs, 89. Jaekson, 533. Varrell v. Wendell, 575. Vassar v. Vassar, 9, 415. Vassault V. Edwards, 6. Vasey v. Trustees, 183. Vason V. r.all,409. Vaughan v. Burtford,541. Greer, 278. 286. Vaughn v. Stuzaker, 165. Tracy, 280. Verdier v. Verdier, 542. Verger v. Giboney, 491. Vermont Mining Co. v. Windham Bank, 200. Vernon v. Smith, .^48, 462. Verplank v. Sterry, 37, 76, 220. Vertner v. Humphreys, 37. Very v. Watkins, 500. Viekers v. Sisson,8. Vickery v. Dickson, 449. Vidal V. Gerard's Ex., 34. Videau v. Griflin, 230, 245. AMele V. Troy ct Boston R. R. Co., 9. Vielie v. Osgood, 15. Villa V. Rodriguez, 416. Villard v. Robert, 271. Viney V. Abbott, 77. Vinson v. Flatt, 449. Vinton v. King, 443. Violett V. Patton,4. Viser V. Riee, 21. Voorhies v. Presbyterian Church, 32. Voorhies, 25. Vose V. Bradstreet, 87. Voss V. Ellar, 416. Vredenburgh v. Burnet, 472. Vreeland v. Glaflin, 273, 287. Vrooman v. Turner, 466. W. Waddens v. Humphreys, 36. Wade V. Deray, 97. Halligan, 173, 344. Howard, 49. Lindsey, 24. Newburn, 367. Wadsworth v. Sherman, 26. Williams, 36, 487. Wagner V. Stone, 409. Wagonbeast v. Wliitney,9. Wager, 111. AVain v. Warlters, 4. Wainanan v. Hampton, 8. Wait V. Maxwell, 26, 311. Waitev. Dennison, 514. Wakefield v. ISrown, 67, 70. Walcop V. McKinney, 408. Waldo V. Hall, 349. Russell, 287. Wales V. Mellon, 453. Sherwood, 4G6. Walkenhorst v. Lewis, 415. Walker v. Arnold, 511. Bovntou, 108. Cockey, 462, 509. Deaver, 167, 176. Dement, 472. Gilbert, 271. Hall,. 551. Keile, 180, 195. King, 408, 411. Lincoln, 59. Paine, 444. Pbysick, 346. Reeves, 370. Renfro, 206. Richardson, 386. Schreiber, 471. TilHn Mining Co., 414. Walker, 77, 205. Whittemore, 358. Wall V. Hinds, 375. AVall, 55, 60,205. Wallacev. Blair, 573. Craps, 281. Harmstad, 18, 20. Harris, 77, 211, 226. Horulested, 23. Hussey. 4ii6. Craig, 27. Lent, 344. Lewis, 25. McCuIlough, 190, 366. Moodv, 284. Talbot, 177. Walle V. Arnold, 512. Waller v. Thomas, 373. Walling V. Aiken, 415. Wallis V. WalJia, 55, 76, 78, 116. Walsh V. ^Etna Life Ins. Co., 443. Hill, 101. Walter V. Weaver, 260. Walter's Will, 540. Walters v. Breden, 113. Cody, 508. Walton V. Burton, 212,375. Dody, 502. INleeks, 9. Walton, 550. Wanmaker v. Van Buskirk, 486. AVannall v. Keen, 264. Waples v. Jones, 445, 449. Ward's Will, 551. Ward v. Amory, 571. Armstrong, 146. Dougherty, 204. Fuller, 251. Lewis, 213. Stow, 576. Stuart, 8. Ward, 205. Warden y. Adams, 469, 470, 471. Ward well v. McDowell, 153. Ware v. Egmount, 74. Johnson, 106. Richardson, 115. Weathnall, 177. Wisner, 560. Waringv. Ayres, 4. TABLE OF CASES. Ixvii ^ Waring v. l.iiifr, 452. 8uiytli,18. AVark v. Willurtl, -Ji'.t, 251. Warn v. IJrown, 80, ua. Warner v. Blakeuian, 485. Gouverneur, 472. llitchins, otj2. Warner, 549, 553. Wllhud, 58>. Warnock v. Cauiijljell, .^0. Warren v. Uaxter, 542. Iloniestciid, 470. Jacksonville, 212. Lovis, 414. Lynch, ISO, 194, 195. Swett, 205. Tobey, •-•21. Wayner, .S(j2. Washburn v. Aldeu, 236. Fletcher, 4. Gardner, 32. Goodwin, 500. Merrill, 416. Washington v. JJassett, 512. Wasson V. Connor, 256. Waterbury v. Sturtevint, 36. Waterman v. Curtis, 4S0. Button, 9. Johnson, 105. Meigs, G. Silberberg, 36. Waters v. AVaters, 491. Watkins v. Dean, ,")20. Edwards, 280. Gregory, 414. \\ atrons v. Bhiir, 2S0. Watson V. Clendenin, 260, 261. Dickens, 443. Dundee Mortgage Co., 470, 473. Gregg, 73. Hopkins, 236. Huukius, 370. Jones, 101. Mercer, 265. reters, 104. Riskaiuire, 32. Therber, 27. Sherman, 230, 514. Watson, 55. AVells.2S2. Watters v. Bredin, 95. Watts V. Coffin, 353. Pub. Admr.,541. Waugh v^ Kiley, 473. Way V. Arnold, 24. Lyon, 2b4. Reed, 339, 346. Weaver v. Wilson, 496. Webb V. Chisolm, 9. Den, 69. Flanders, 470. Fleming, 542. Hoseltou, 424. Jones, 551. Meloy, 473. 31ullins, 10, 82. I'atterson, 415. Russell, 318. Webber v. Curtis, 512. AVebster v. Cambell, 182. Conley, 84. Hall, 249. Zielly. 6. Weed V. Covin, 443. Davis, 37. Weed Sewing Machine Co. v. Emerswn, 464, 465. AA'eeden v. Hawes. 443. Weeks v. Eaton, 471. AA'elde V. (jebl,41.J, iU.. AVeil v. Fischer, 472. AVellc V. United States, 242 AVelll V. Lucerne Mining Co., 88. AV'eintine V. Harrison, 353. AVelr V. Mosher, 490, 493. Smith; 155. AV^elsiger v. Chisholm, 36. AVelsser v. Maitland, 15. Welborn v. AVeaver, 212. AVelch v. Adams, 407, 542. Foster, 260. Goodwin, 471. Phillips, 407, 411. Priest, 470. Sullivan, 260. Usher, 426. AVelch, 25. Welck V. Dutton, 59. AVeld V. Madden, 280. AA'elder V. Hunt, 101. AA'elland Canal Co. v. Hathaway, 309. AVellborn v. Rogers, 25. AA'ells v. Atkinson, 260. • AIorrow,279, 417. AVells, 515, 550. AA'elsch V. Belleville Savings Bank, 571. AVelsh v. Foster, 56, 116. Kibler, 170. Phillips, 470. Welsh, 36. West's Appeal, 493. West V. Bundy, 8. Chamberlin, 485. Hart, 362. Hendrix, 417. Reed, 74, 491. Shaw, 101. Stewart, 165, 170. West Branch Bank v. Chester, 445. West Point Iron Co. v. Reymert, 119. Westerman v. Foster, 271. AVestern Mining Co. v. Pej-tona Coal Co., 171. ATestern R. R. Co. v. Babcock, 219. AVestern Transit Co. v. Lansing, 322. Western U. Telegraph Co. v. C. & P. R. R. Co., 6, 7. AA'estervelt v. Ackley, 312. Westfall V. Lee, iSl. Westgate v. Handlin, 513. Weston V. Foster, 576. AVestrope v. Chambers, 165. AVetmore v. Laird, 260, 261. AVetterv. Walker, 571. AA'hallej- v. Small, 291. AVhartou v. Brick, 95. Silliman, 575. Stoutenbargh, S. AA'heaton v. Pike, 449. AA'heelden v. AVilson, 36. AA' heeler v. Dunlap, 5S0. Earle, 382. Hatch, 165. Kevins, 230. Schad, 162. Single, 204. Spiuola, 105. AVheeler, 551. AVheelock v. Thayer, 165. Warschauer, 389. Wheelwright v. Wheelwright, 211. AA'helan v. Whelan, 76. AVhipple v. Barnes. 497. AVhitaker v. Bond, 9. Brown, 109, 118. Garnett, 73. Hawlev, 357. Miller, 67. AVhltbeck V. Cook, 165. Ixviii TABLE OF CASES. Whitbeck v. Whitbeek, -1. White her v. Webb, 446. Wbite V. Bond, 370._ Brokiiw, 111. Brown, 452. Casten, 549. Core, 4, 206. Davidson, 234. Douglas, 146. Fitzgerald, 146. Foster, 277. Fuller, -24, 323. Godfrey, 104. Hampton, 458. Hicks, 155. Holman, 502. Holly, 9. Howard, 532. Lucas, 415. Lnniug, 101. McGannon, 9. Mcl'heeters, 36 Montgomery, 344, 356. Palmer, 26, 311. Patten, 16'J. Rittenmyer, 401,409. Schuyler, 9. Wager, 32. Walkins, 4, 4o8. Whitney,i62.170,401,407. Whitehead v. Arline, 33. Foley, 2(1. Hellen, 514. Wilson, 585. Whitemore v. Gibbs, 471. Whiting V. Dewey, 17^. NichoU, 5.o7. Whitley v. Davis, 180, 195. Whitlock V. Dufheld, 3o4. Whitman Mining Go. v. Baker, 33. Whitmars v. Cuttmg, 29 (. Whitney v. Allaire, 344. Buekman,438. Dinsmore, 166. Dutch, 25. French, 414. Myers, 386. Smith, H 3. Whitney, 535. Whitsett v. Kedshaw, 416. Whittelsey v. Hughs, 4o8, 510. Whittingtonv.Uarkj^m^ Whittle V. Webster, 344. Whitton V. Whltton, 31, 48, 496. Whyler v. Van Tiger, 31. Wickersham v. Chicago /inc Co., 271 Reeves, 473. Wickes V. Caulk, 19, 257. Wicks v. Hatch, 236. Wig ^ in V. Peters, 380. Wiggins V. Lusk, 207. Wight V. Geer, 39. Wiltcr V. Est. Warren, .8, 465. Wilbridge V. Ca^e, 48. Wilburn v. Spotiord, lod. Wilcox V.Bates, 416. How land, 2b. Morgan, 37. Wood. 380. Wilcoxen v. Clark, 83. Osborn, 250. WUcoxson V. Miller, 287. Wild V. Stephens, 497. Wilder V. Brooks, 32. Haughey, 502. Houghton, 407, Whitteraore, 496. Wiley v.Beitn, 260. Wiley V. Bradley. 8. Ewalt, 30. Ewing, 478. Slrdorus, 118. Wilhelm v. Mertz, 364. Wilkerson v. Allen, 515. Wilkes V. Bock, 246. Wilkinsv. French, 40 <, 411. Gordon, 508. Wilkinson v. T.uist, 585. Clauson, 344. Flowers, 497. Getty, 1.57,246. Scott, 79. Willard v. Benton, 336. Clark, 18. Cramer, 257. Dow, 27. Harvey, 483, 487. Reas, 427. Tillman, 370. Willet V. Overton, 289^ Willington v. Gale, 3lu, 4U(, Willis V. Astor, 354. Long, 491. Shorral,158. Willlson V. Watkins, 3S8. Williams v. Baker, 263. Beard, 401. Birbeck, 471. Bosamiucc, 370. Burrell, 84, 161. Davis, 37. Downing, 46, 297. Fitzhugh, 443. Greer, 196. Howard, 9. Love, 472. Morancy, 472. Morris, 8. Otev, 153. Reynolds, 449. Roberts, 427. Robinson, 5-59. Robson, 182. Russell, 502. Sprigg, 220. Starr, 183, 19o. Strattou,426. Swetland, 183. Thurlow, 465. Townisend, 451. Waters. 6. Wetherbee, 168. Williams, 145, 549. Young, 125. Williamson v. Brown, 281, '.s'-. Cavetor, 270. Doe, 501. Hall, 107, 167, 176. Mew .lersev Southern U. R. Co., 438. AVackenheiui, 36. Williamson, 571, 575. Willingham v. Hardin, 285. Wilmerv. Farns,8. Wilmerding v. Mitchell, 41o. Wilsey V. Dennis, 209. Wilson V. Albert, 59. Beddard,541. Branch, 25, 27. Cochran. 107, 164, 168. Drurarite, 415. Eifler, 39. Forbes, 165. Gait, 126. Geisler, 502. Gerhardt, .337, 370. Giddings,415. Hildreth, 101. TAHLK (JF CASES. Ixix Wilson V. Hunt(!r, 93, 281. Ii'ImIi, o(>. .1 allies, HhS. Kimhdll, 471. Kolilhetin, 37. LCHlt:^!-, :i!57. Lyon, 4'Ji;. .Maryliuul Life Iris. Co., l.')L .Mi'(.iilluu«li,ZSl. .MItcli»ai,.Ji7. l":itrick, no. UiisscU, 7t!. ^iiii|>Mon, 2:-il. Tnivia-, 250. Tioiii). '.'3(i, -t-'S, 470, 471, 610. AVllUenliam, I'i.'i. Wilson, I'K, otiG. Wilt V. Friiiiklhi, 20y, 214. Wilton \. HiirwooU, 2, is. Winnns v. Peebles, 82, 76, 78. ■Windsor V. China, 3H0. Wing V. Cooper, 895, 458. Coodward v. Barr, 272. Davis, 478. Woodworth v. Gii/.inau, 417. Morris, 429. Wooddridge v. Hancock, 8. Woody V. Dean, 87. Woole'y V. Constant, 18, 21 Holt, 409. Nay lor, 512. Woolery \. W'oolery, 550. Woonsocket Sav. Inst. v. Amer. Woor ated Co., 511. Worcester v. Katon, 25, 28. Workman v. Diiijtinick,542. Woiniley V. \\ oruiley, 2M4, WorrallV. .Munn, 6, 7,224. Worthlngton v. Co*)Ue, 877. Worthy v. Brady, 86. Woithiiigtou V. Kceimn,640. Wragg V. Compt. Geii., 427. Wren v. Buckley, 409. Wright V. Bates, 415. 416. Bundy, 263. Burrows, 389. Douglas, 309. K;t\ es, 449, 497. (iciiuaiii, 25. Henderson, 40!.». How. U, 36. l.angley, 443. Mischo, 4. Pucket, b. Shumway, 425. fSmvth. 174. Whkhead, 477. Wright, le, 173,549. Wright's .\ppeal,57l. Wunsthoff V. Seyu.our, 108. Wjche V. Greene, 89. Wyman v. Ballard, 166. Brown, 56, 270. Syiumes, 6i2. Wynne v. Governor, is. Yale V Flanders, 196. Yarborough v. .Monday, 196. Yarbrough v. Newell, 415. Yard v. 'i urd. 29. Vaiyan v. shrlner, 427. (.'") Ixx TABLE OF CASES. Yutes V. Cole, 574. Yutos, 415. Yorby v. tirig.sby, 246. Yot' V. McCoid, rAl. York V. Monitt, 3f>. Yount; v. Iturrt-tl, 542. (,llpi>lii{. The effect of the coutiact, and lit-rein of specific performance. 10. AVhether a deed, or an agreement for a deed. § 1. Every Deed is the Carrying out of Some Pre- existing' Intention of the parties thereto, and it is to be reuiarked that this intention forms an important part of the transaction. Indeed, it may be stated that tlie agreement or consent of the parties is the first essential to the opera- tion of a deed as a conveyance. It is, therefore, thought proper to preface the consideration of purchase deeds with a few remarks concerning the contracts upon which they are ordinarily founded, though it would be inconsistent with the design of the present work to enter into an ex- tended discussion of mere executory contracts. The ques- tions under this head are very numerous, and it is not possible to comprehend them all in a few general proposi- tions, but our effort will be to present in as brief a space as possible a primary view of the essential elements of such agreements. § 2. The Principal Statntory Requisites to the Con- tract are to be found in the fourth section of the Statute of Frauds. This statute was passed in the reign of Charles II., A. n. 1()77, for the purpose of preventing frauds and perjuries by requiring in many cases written evidence of a contract. Similar statutes have been enacted or declared in force in all of our States, and although no two of them agree exactly in all their provisions they are substantially the same. This statute,^ among other things, provides that no action shall be brought to charge any person upon any contract or sale of lands,- tenements or hereditaments, or 1 29 Car. II, ch. 3, § 4. 2 In California, Connecticut and Idaho, the statute reads : "Upon any •sale," etc., "of real estate." in Texas, the words "or any interest in or concerning real estate," are omitted. See Evans v. Hardeman, 15 Tex. 480; Anderson v. Powers, 59 Ibid. 213. ART. I. CONTKACTS FOR PUUCHASE AND SALE. 3 any interest in or concerning tiicni, unless the agreement upon whicli such action shall be brought, or some memo- randum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.^ § 3. To what Interest in Land the Statute Applies. — Some of the States, by positive enactment, undertake to define the meaning of the term "real estate," or "lands, tenements and hereditaments," as used in th(^ statute. - 1 Alabama, Code 187(5, § 2121: Arizona. Comp. Laws 1877, §§2125, 2132; Arkansas, Mausf. Dig. 1884, § 3H71; California, Hitt. Code 1876, § GG24; Colorado. Gen Stat. 1883, §§1521,152.1; Connecticut, Kev. 1875, tit. 19, cb. 11, § 40; Dakota, Civ. Code, § !)20; Delaware, Kev. Code 1874, ch. G3, §§ 0, 7; Florida, Dig. 1881, ch. 20, § 1; Georgia, Code 1882, § 1950, or guardian or trustee; Idaho, Gen. Laws 1881, Civ. Code, § 937; Prob. C. 215; Illinois, Cothran's Stat. 1883, ch. 59, §1; Indiana, Rev. Stat. 1881, § 4904; Iowa. Miller's Rev. Code 1880, §§ 3GU3-4. In Iowa, the statute relates merely to the proof, and does not pi-event the party from establishing the contract by evidence of the other party, § 3G67. If not denied in the pleadings it will ])e enforced, §366G; Kansas, Comp. Laws 1879 (Dessler), ch. 43, § G; Kentucky, Gen. Stat. 1881, ch. 22, § 1 ; Maine, Rev. Stat. 1883, ch. Ill, § 1; Massachusetts, Pub. Stat. 1882, ch. 78, § 1 ; :\Iiciiigan, How. An. Stat. 1882. § G185; Minnesota, Gen. Stat. 1878, ch. 41, §G; Mississippi, Code 1880. § 1292; Missouri, Rev. Stat. 1879, §2513; Montana, Rev. Stat. 1879, § 247; Nebraska, Comp. Stat. 1881, pt. 1, ch. 32, §§ 8, 25; Nevada, Comp. Laws 1873, §§ 289, 296; New ITampsliire, Gen. Laws 1878, ch. 220. §§ 14. 15: New . Jersey, Rev. Stat. 1877, ch. Frauds, § 5; New York, Rev. Stat. fBanks Bros. 7th ed.), pt. 2, ch. 7, tit. 2, §§ 2-4; North Carolina, Code 1883, §§ 1506, 1552, 1554; Ohio, Rev. Stat. 1880, § 4199; Oregon, Civ. Code, § 775; Pennsylvania, Bright. Pur. Dig. 1872, Frauds, § 4; Rhode Island, Pub. Stat. 1882. ch. 204, § 7; South Carolina, Gen. Stat. 1882, § 2019; Tennessee, Code 1884 (Mill, it Vert.), § 2423; Texas, Rev. Stat. 1879. § 24G4; Utah, Comp. Laws 187G, §§ 1014, 1019; Civ. Code, § 1208; Vermont, Rev. Laws 1880, § 981; Virginia, Code 1873, ch. 140, § 1; AV'ashington Ter., Code 1881, § 2325; West Virginia, Kelly's Rev. Stat. 1878, ch. 95, § 1; Wisconsin, Rev. Stat. 1878, §§ 2307, 2327; Wj-oming, Comp. Laws 1876, ch. 57, § 1. 2 Alabama, Code 187G, § 2; Arizona, Comp. Laws 1877, § 2279; Arkan- sas, Mansf. Dig. 1884, §§ G45, G347; California. Uitt. Code 187G, § 5014; Dakota, Civ. Code, § 2126; Delaware, Rev. Code 1874, ch. 5, § 1 ; Illi- nois, Cothran's Stat. 1883, ch. 30, § 38; Indiana. Rev. Stat. ISSl, § 1285; Missouri, Rev. Stat. 1879, §§ 700, 312G: Nebraska. Comp. Stat. 1881, pt. 1, i;h. 73, § 44; New Mexico, Comp. Laws. 1884, C. L. 1880, ch. 44, § 2; North Carolina, Code 1883, § 3765; South Carolina, Gen. Stat. 1882, § 444. 4 CONVEYANCING. CH. I. (Questions have frequently arisen as to what is included, under the term ''interest in or concerning" lands, and the cases are not all reconcilable in this particular.^ But the true distinction is, that if any legal or equitable ownership, however slight, in anything, which either at common law or equity is deemed real estate, is the subject of contract or intended to pass by it, the Statute of Frauds requires it ' A parol contract to sell liud deliver whatever brooiii-euru .should be raised on twenty-five acres of land is within the Statute of Frauds. Bowman v. Conn, 8 Ind. 58. But see Scott v. White. 71 111. 288. Con- tract to sell wild j^rass growing on wild, uncultivated land is within the statute. Powers v. Clarksou, 17 Kan. 218. Contract between landlord and tenant for a lien on the crop is not within the statute. Gafford v. Stearns, 51 Ala. 434. But See Kerr v. Hill, 27 W. Va. 576. Contract for sale of growing trees is within the statute. Owens v. Lewis, 46 Ind. 489; Cool v. Peters, 87 Ind. 532; Lillie v. Dunbar, 62 Wis. 198; Hawkins v. Harmeu (Wis.), 35 N. W. Rep. 28; Eliot v. Barrett (Mass.), 10 N. E. Rep. 820; Pattison's Appeal, 61 Pa. St. 294; Daniels v. Bailey, 43 Wis. 566. Agreement to build a dam on land not within the statute. Jack- sou V. Litch, 62 Pa. St. 451. Those possessory rights in realty known in California as "squatters" rights," were interests in land under the stat- ute. Hayes v. Skidmore. 27 Ohio St. 331. An agreement to open a channel on land and divert water into the same, is not within the statute. Hamilton Hydraulic Co. v. C, H. & D. R. Co., 29 Ohio St. 341. Con- tract to erect a division fence not within the statute. Talmadge v. R. & S. R. Co., 13 Barb. 493. Agreement to cut standing trees into cord- wood and deliver the wood, is not within the statute. Killmore v. Howiett, 48 X. Y. 569. Contract to sell one-sixteenth of the oil to be produced by an oil-well is an interest in land within the statute. Heniy v. Colby, 3 Brewster (Pa.), 171. See also on this subject School District V. Milligan, Supreme Court of Pennsylvania, 8 Cent. L. J. 425; Snyder v. Walford, 33 Minn. 175; Bland v. Talley (Ark.), 6 S. W. Rep. 234; Davis V. Gerber (Mich.), 37 N. W. Rep. 281 ; Turner v. Johnson (Mo.). 7 S. W. Rep. .570; Gardner v. Randall (Tex.), 7S. W. Rep. 781. Agree- ment for the exchange of laud for land is within the statute. Rice a . Peet, 15 Johns. 503. Contract for standing timber on tract of land is an interest in land. Bowers v. Bowers, 95 Pa. St. 477. Verbal promise to compensate a party by will, either in land or money, is within the stat- ute. Howard v. Browner, 37 Ohio St. 402. An interest in contingent profits, arising from sale of real estate, is not an interest in land. Ben- jamin v. Zell, 100 Pa. St. 33. Agreement to let a hall not within stat- ute. Johnson v. Wilkinson, 139 Mass. 3. Contract for sale and delivery of house then annexed to land not within statute. Long v. White, 42 Ohio St. 59; Rogers v. Cox, 96 Ind. 157. An easement is within the statute. Robinson v. Thrailkill. 110 Ind. 117. ART. I. CONTRACTS FOK PURCHASE AND 8ALK. 5 to be in writing;^ while on the other hand, a license or agreement to do anything on, with or about the realty, need not be in writing, where no interest is to pass to the party .'^ § 4. What Must be Contaiiu'd in the Agreement. — Since the agreement is to be in writing, it follows that the writino^ must contain within itself the means of ascertain- ing the essential parts of the contract." This, ordinarily, includes the names of the contracting parties, the consider- ation, a description of the projjcrty, and the stipulations intended to bind the parties.* It has been held that the memorandum of a sheriff, acting as trustee, or an auction- eer, setting forth the description, terms of sale, etc., is sufficient under the statute. "^ And the weight of authority 1 Holmes v. Holmes, 80 N. C 205: Cloud v. Greasley (111.), 17 N. E. Rep. 826. ' McConnell v. Brayner, Cu\ Mo. 4CA : Bishop on Contracts, 1887, § 1292, and oases cited. Michael v. Foil (N. C), 6 S. E. Rep. 264; Moritz V. Savalle (Cal.), 18 Pac. Rep. 80:5. 3 Verbal testimony is not admissible to supply any defect in the writ- ten evidence as to the essential terms of a sale. Parkhurst v. Van Cortlandt, 1 Johns. Ch. 281; 2 Wharton on Evidence, § 021; Nichols v. Johnson, 10 Conn. 192; Abeel v. Radcliff, 13 Johns. 297; Carter v. Shorter, 57 Ala. 253; Cox v. Cox, 59 Ala. 591; Neufville v. Stewart, 1 Hill (S. C), 166; Cossitt v. Hobbs, .56 III. 232; Wood v. Davis, 83 111. 311 ; Rafferty v. Longee, 63 \. II. 54. Description of the property must not be indefinite. Fry v. Platt, 32 Kan. 62; Francis v. Barry (Mich.). 37 X. W. Rep. 3.53. A memorandum not clearly showing which party was vendor and which vendee, not sufficient under Code Mississippi, § 1295. Kranlc v. Eltringhain (Miss.), 3 Sniith, 655. As to what is required in Minnesota, see Clampet v. Bells, 39 X. W. Rep. 495. * Johnston v. Jones (Ala.), 4 South. Rep. 748. In Colorado, the mem- orandum must show names of the parties, terms and conditions of tlii' contract, interest or property affected, and the consideration. Eppich V. Clifford, 6 C01O493. Under the Statute of Virginia, the promise only need be in writing. Violett v. Patton. 5 Craneh, 142. Signing receipt formouey paid is not sufficient memorandum. Wright v. Mische, 52 N. Y. Sup. Ct. 241. ■■* Smith V. Arnold, 5 Mason (R. I.). 419; White v. Watkins. 23 Mo. 427; Buckmaster v. Harrop. 13 Ves. 464; Adams v. Scales, 57 Tenn. 337: Barclay v. Bates. 2 Mo. App. 139; Springer v. Klenisorge, 83 Mo. 152. But contra, Gwathney v. Cason, 74 N. C. 5; Rafferty v. Longee, 63 N. H. 54. It is manifest, however, that this rule would not hold good where the statute requires the authority of the agent shall be in writing. Iitfra, $ 7. Broker's memorandum not sufficient if terms of sale ;ire omitted. Eliot v. Barrett. 144 Mass. 256. Memorandum signed by () CONVEYANCING. CH. I. seems to be in favor of such a rule, provided the memoran- (Uun made by the auctioneer is made within a reasonable time after the hammer falls. ^ Whether it is necessarv that the consideration should be expressed in the writing as part of the agreement, is a question which has been much discussed, and upon which some of the cases are in direct opposition, owing, to some extent, to a variation in the terms of the statute.- In a few of the States it is provided by statute that the con- sideration need not be expressed in such note or mem- orandum, but may be proved by legal evidence.^ In others, however, it is required by statute, that the consideration be expressed in the writing.^ If, however, a conveyance auctioueer which fails to show who the owner or vendor was, not suffi- cient. O'Sullivau V. Overton (Conn,), 14 Atl. Rep. 300. 'Smith V. Arnold, .5 Mason (R. I.), 419; White v. Watkins, 23 Mo. 423; Jelks v. Barrett, .52 Miss. 316; Infra, § 7. The memorandum of the auctioneer must be contemporaneous with the sale. Bamber v. Savage, 52 Wis. 110. 2 Lord Ellenborough, in Wain v. W^arlters, 5 East, 10. held that, under the English statute, the consideration is a jiart of the agreement and must be expressed in the writing, and this has ever since been held to be the English rule. Saunders v. Wakefield, 4 B. «fe Aid. 595; Seais v. Brink, 3 Johns. 210; Leonard v. Vredenburgh. 8 Johns. 29; Neelson v. Sanborn, 2 N. H. 413 ; Phelps v. Slillings, 60 N. H. 505. Contra: Packard v. Richardson, 17 Mass. 122; Levy v. Merrill. 4 Greenl. ISO; Miller v. Irvine, 1 Dev. & Bat, 103: Sage v. Wikox. G Conn. 81 ; Bucklev v. Beardslee, 5 N. J. L. 570; Thomas v. Hammond. 47 Tex, 42; Washburn v. Fletcher, 42 Wis. 152; Steadman v. Guthrie, 4 Mete, (Ky,) 147; Shively v. Black, 45 Pa. St. 345; Bean v. Valle, 2 Mo, 126; Cununings v. Dennett, 26 Me. 397; Bowser v. Cravener. 5i; Pa. St. 132; Thornberg V. Masten, 88 N. C. 293. In Alabama, consideration must appear in memorandum. Phillips v. Adams, 70 Ala. 373. In Illinois, it was held that the jjrovision of the Statute of Frauds of 1869, for the sale of land, requires the consideration as well as the promise itself to appear in writing. Under the revision of 1874 the rule is different. Patmor v. Haggard, 78 111. 607; Ludeke v. Sutherland, 87 111. 482. ••' Mass. Pub. Stat, 1882, ch, 78, § 2; Me. Rev. Stat. 1883, eh. Ill, § 1; N. J. Rev. Stat. 1877, ch. Frauds, § 9; Ind. Rev. Stat, 1881, § 4905; 111. Cothran's Stat. 1883, ch. 59, § 3; Mich, Stat. 1882, §§ 6182, 6189; Neb. Comp. Stat. 1881, pt. 1, ch. 32, § 24; Va. Code 1873, ch. 140, § 1; Ky. Gen. Stat. 1881, eh. 22. § 1. * Minn. Gen. Stat, 1878, ch. 41. § 6; Oreg, Gen. Laws Civ. Code, § 775; Nev. Con)p. Laws 1873. §§ 289. 290; Ala, Code 1876, § 2121. ART. I CONTRACTS FOR PURCHASK AND SALE. 7 bargained for is actually made, any oral promise rcganiing the consideration, as to pay for the land, is universally held good.^ The written agreement need not be contained in a sin£rle document. It may consist of several documents or letters relating to the same contract, but it must appear that they are thus connected.- It is hardly necessary to add that no particular form is required.^ It is sufficient if the contract can be ascertained with certainty from the writings.^ Thus a description of the property, if intelligible to those who know it, such as "my farm," or "this place," is sufficient.-^ Parol evidence is admissible to show what property answers the description.'^ 1 Nutting V. Dickinson, S Allen, 640; Basford v. Pearson, Allen, 387; Mason v. Mason, 3 Bush, 35; Whitbeck v. Wbitbeok. 9 Cow. 26G; Xiek- erson v. Saunders, 3G Me. 413; Price v. Sturgis, 44 Oal. 591; Atchison. etc. R. Co. V. English (Kan.), 16 Pac. Rep. 82. A vendee who refuses to fulfill a contract for the purchase of land which is within the Statute of Frauds because not in writing, cannot recover money paid on the contract from the vendor who is willing and offers to perform. McKin- ney v. Harvie (Minn.), 35 N. W. Rep. 668. 2 Ide V. Stanton, 15 Vt. 686; Jackson v. Lowe, 1 Bing. 9; Dobell v. Hutchinson. 3 A. & E. 355; 1 Greenl. on Ev., § 268; Foster v. Leeper. 29Ga. 297; Toomer v. Dawson, 1 Cheves (S. C.),68; Long v. Millar. Eng. Ct. of App., 27 W. R. 720; Roehl v. llaumesser (Ind.), 15 X. E. Rep. 345; Tice v. Freeman. 30 Minn. 389; Peck v. Vandemark. 99 X. Y. 29; Lee v. Cherry, 85 Teun. 707. The letters need not be addressed by one of the contracting parties to the other. Hollis v. Burgess, 37 Kan. 487. 3 McConnell v. Brillhart, 17 111. 354; Wood v. Davis, 82 111. 311; Cad- walader v. App., 81 Pa. St. 194. •• Parol evidence is admissible to connect the various parts of the con- tract. Lee v. Mahoney, 9 Iowa, 344; Fulton v. Robinson, 55 Tex. 401. ^ Madden v. Tucker, 46 Me. 367; Wood v. Sawiu, 4 Gray, 322; Dins- more V. Winegar, 57 N. H. 382; Hilliard v. Phillips, 81 X. C.105; Brown v. Coble, 76 X. C. 391; McCornack v. Sage, 87 111. 484; Reader v. Helms, 57 Ala. 440: Morrison v. Dailey (Tex.), 6 S. W. Rep. 426: Quinn v. Champagne (Minn.), 34 X. W. Rep. 451; Francis v. Barry (Mich.), 37 X. W. Rep. 353. «2 Whart. on Ev. § 943; Brinkerhoff v. Olp. 35 Barb. (X. Y.) 27: Waring v. A3a-es, 40 X. Y. 357; Steadman v. Taylor, 77 X. C. 134: Col- cord V. Alexander, 67 111. 584; Cornwell v. Cornwell, S. C. 111., 9 Cent. L.J. 158; Troup V. Troup, 87 Pa. St. 149; White v. Core, 20 W. Va. 272; Lente v. Clarke (Fla.), 1 South. Rep. 149; Hollis v. Burgess. 37 Kan. 487. But contra, Holmes v. Albee, S. C. Iowa, 8 Cent. L. J. 447. 8 CONVEYANCING. CH. 1. § 5 . Parol Evidence, when Admissible. — It is a familiar principle that parol evidence is inadmissible to contradict or vary the terms of a valid written instrument.^ But in construing a contract the court places itself as near as pos- sible in the situation of the parties, and parol evidence is admissible for that purpose.^ It may, in such cases, be introduced to show the circumstances under which the con- tract was made, not for the purpose of varying, but explain- ing the writing.'' But contemporaneous conversations and agreements are inadmissible for the purpose of showing the intention of the parties.* The duty of the court is not to ascertain what the parties may have secretly intended, but what is the meaning of the words they have used.^ Parol evidence is also admissible to show the meaning of technical terms of art, of obscure terms, or to show a usage or custom, ^and to show and explain latent ambiguities.'^ 1 Boorman V. Johuston, 12 Weud. 575; Cocke v. Biiiley, 42 Miss. SI; Huse V. McQuade, 52 Mo. 388; Clarke v. N. Y. Life Ins. Co., 7 Laus. 326; Kain v. Old, 2 Barn. &Cres. 027; Parkhurst v. Van Cortlaudt, 1 Johns. Cb. 273; Dean v. Mason, 4 Conn. 428; 2 Wharl. on Ev. §920; Williams v. Waters, 36 Ga. 454. 2 2 Whart. on Ev. § 040; Simpson v. Margitson, 11 Q. B. 31 ; Guy v. Sharpe, 1 Myl. & K. 002: Lancey v. Phamix Fire Ins. Co., 50 Me. 505. s Crawford v. Jarrett, 2 Iveigh (Va.), 630; Lyman v. Babcock, 40 Wis. 503; Gansou v. Madigan, 15 Wis. 144; Sawyer v. Dodge County Ins. Co., 37 Wis. ,503; Knigbt v. New England Co., 2 Cusb. 271: Foster v. McGraw, 04 Pa. St. 404; Musgat v. Pumoelly, 40 Wis. 007; Peiseh v. Dickson, 1 Mason, 11; Lee v. Cberry, 85 Tenn. 707. "• Vanderkarr v. Tbompson, l!»Micb. 82; King v. Ruckman, 21 N. J. Eq. 590; Pilnier v. Bank, 4 Am. Law Reg. (N. S.) 330. See also Swain V. Seamens, 9 Wall. 2.J4; Doberty v. 11111, 144 Mass. 405. M Greenl. on Ev. § 287; Cubberly v. Cubberly, 12 N. J. L. 308; Cbampion v. Wbite, 5 Cowen (N. Y.), 511; Russell v. Scburmier, 9 Minn. 28. fi Eaton v. Smith, 20 Pick. 150; N. J. Zinc Co. v. Boston Co., 15 N. J. Eq. 418; Lyman v. Babcock, 40 Wis. 503; Musgat v. Pumpelly, 40 Wis. 060. But see Scbmeling v. Kriesel, 45 Wis. 325; Brauns v. Stearns, 1 Oreg. 307; Jenny Lind Co. v. Bower, 11 Cal. 104; Locke v. Row ell, 47N.H.40; Tbompson v. Hamilton, 12 Pick. 425; Pilmer v. Bank, 4 Am. Law Reg. (N. S.) 336; JIartwell v. Camman, 10 N. J. Eq. 128; Barnard v. Kellogg, 10 Wall. 383; Robinson v. United States, 13 Wall. 363. ~ Hail V. Davis, 36 N. H. 569; Cubberly v. Cubberly, 12 N. J. L. 308; AKT. 1. CONTHACTS FOIt I'UHCIIASK AM> .SALE. 9 § (j. As to the Sifjrnature. — It will be observed that the writing is to be " signed by the i)arty to be charged there- with." It is not necessary that it be signed by the party insisting on the performance, or that he be bound by it.' This question was fully considered by Chancellor Kent in Clason V. Bailey^' and the authorities reviewed at some length ; and although he agreed with Lord Chan- cellor Redesuale in Lawrenson v. Butler,^ that on prin- ciple the contract ought to be mutual and ought not to be enforced in equity, unless each party might have the same right, yet he felt himself bound by the authorities which were then too well settled to be disturbed. The Supreme Court of the United States has held that the memoran- dum, though signed b}^ the defendant, is not sufficient to sustain an action unless the other party to the agreement is either named in the memorandum or so desisfnated in some paper signed by the defendant that he can be identified without parol proof.* And this seems to be sustained by Bank of U. S. v. Duiin, (5 Pet. r>l ; Shuetze v. Eggers, 40 Mo. 69; Hotch- kiss V. Barnes, 34 Conn. ;55; Peisch v. Dickson, 1 Mason, 0; Ely v. Adams, It) Johns. 313; Piper v. True, 3G Cal. GOT; Ilartwell v. Canimau 10 N. J. Eq. 128. But all the attendant and surrounding eircunistances may be proved, and if there is any ambiguity, latent or patent, it may be explained. California, Hitt. Code 1870, § 11860; Georgia Code 1882, § 2757; Montana, Civ. Code, § GIO; Oregon, Civ. Code, §§ G82, G8G. So if a part of a contract only is reduced to writing, and it is manifest that the writing was not intended to speak for the whole contract, parol evi- dence is admissible. Georgia, Code 1882, § 2757. ' Farneli v. Lowther, 18 111.255; Esmay v. Gorton, 18 111.483; Perkins V. lladsell, 50 111. 220; Clason v. Bailey, 14 Johns. 484; McCrea v. Pur- mort, IG Wend.4G0; Allen v. Bennett, 3 Taunt. 170; Penniham v. Harts- horn, 13 Mass. 91 ; Vassault v. Edwards, 43 Cal. 458; Marqueze v. Cald- well, 48 Miss. 23; Justice v. Lang, 42 N. Y. 493; Old Colony K. R. Co. v. Evans, G Gray, 25; W. U. Telegraph Co. v. C. & P. R. R. Co., 8G 111. 246; Gartnell v. Stafford, 12 Nel). 545; Carskaddon v. Kennedy, 40 N. J. Eq. 259; Love's Executors v. Welch (N. C), 2 S. E.Rep. 242. By the words, "the party to be charged," in the statute, must be understood the de- fendant in the action. Newby v. Rogers, 40 Ind. 9; Cadwallader v. App., 81 Pa. St. 194; Crutchfield v. Donathon, 49 Tex. 692. But see Bingham on Sale of Real Property, p 434 et seq. 2 14 Johns. 484. •■'Sch. &Lef. 13. ■• Grafton v. Cuniniino;s. S Cent. L. J. 381. 10 CONVEYANCING. CH. I. the weight of autlioiity, both in Enghmd and in this country,^ though a prior decision of the Supreme Court of the United States in 1877 seems to be opposed to the doctrine.^ It is not material in what part of the agreement the sig- nature is to be found, unless the document is evidently incomplete.^ This is true, except in those of our States, in which the statute has the word " subscribed " instead of "signed," in which case the signature should be at the bottom of the instrument.* The note or memorandum need not be made and subscribed by the party to be charged at the time of making the agreement.^ It seems that put- ting initials to a document, the name appearing elsewhere, is a sufficient signing to satisfy the requirements of the statute." So a printed signature, if ordinarily used, is sufficient.' So if written with a lead-pencil.^ The contract, the reader will perceive, need not be under seal.^ But it is to be remembered that a corporation aggregate which has a common seal must use that seal as its common signature. § 7. Signature by Agent. — The statute also makes a signature by a lawfully authorized agent binding on his principal. It is not necessary in such case that the agent's authority should be in writing. If lawfully authorized ver- bally he can bind his principal by a valid signing of the ex- ecutory contract.^" Under the statutes of Pennsylvania, 1 Browne on Stat, of Frauds, § 372 ; Champion v. Pulle, 1 Bos. & P. 252; Waterman v. Meigs, 4 Cush. 497; Sherburne v. Shaw, 1 N. H. 157. 2 Beckwith v. Taylor, 95 U. S. 289. 3 Cabot V. Ilaskins, 3 Pick. 83; Smith v. Howell, 3 Stock. 349; Brink V. Spaulding, 41 Vt. 96. * Davis V. Shields. 20 Wend. 341. 5 Wel)ster v. Zielly, 52 Barb. (IST. Y.) 482. •^ Phillimore v. Barry, 1 Camp. 513. ' Saunders v. .Tackson, 2 Bos. & P. 238; Schneider v. Norris, 2 M. & S. 286; Torrett v. Cnipps, 9 Cent. L. J. 41; Drury v. Young, 58 Md. .546. 8 Clason V. Bailey, 14 Johns. (N. Y.) 484. 9 Martin v. Weyman, 26 Tex. 460; Worrell v. Muun, 5 N. Y. 229. ^c Story on Agency. § .50; Clason v. Bailey, 14 .Tohns. 4S4; Johnson v. Dodge,'l7 111. 4.33 ;^W. U. Telegraph Co. v. C. & P. K. R. Co., 86 111. 246; Worrell v. Munn, 5 X. Y. 229; Champlin v. Parish, 11 Paige, 406; AKT. I. CONTRACTS FOR PURCHASE AND SALE. 11 California and Nebraska, however, the authority of the agent must be in writing. ^ It is to be remembered that an agent cannot, in general, delegate his authority, and, there- lore, the writing must be signed by him personally ; it can- not be signed by his clerk, so as to bind the principal.^ The instrument should purport on its face to be the contract of the principal. Strictly, his name should be inserted in and signed to it. But how far this is necessary in order to bind the principal and to relieve the agent is a question that has been much discussed and upon which the decisions are not uniform. The better opinion seems to be that parol evi- dence may always be admitted to charge an unnamed prin- cipal, but not to discharge the actual signer. ^^ This rule is only applicable to executory agreements and does not apply to sealed instruments.* It may be added that the auctioneer, at a sale of lands, is regarded as the agent of both parties; and if the whole contract can be made out from the mem- orandum and entries signed by him, his signature will bind them both.'' Brown v. Eaton, 21 Minn. 400; McWilliains v. Lawlers, 15 Neb. 132. But see Doherty v. Hill, 144 Mass. 4G5. Otherwise as to conveyances by which an interest in lands in presenti is intended to be conveyed, when the authority must be in writini;. McWharter v. McMahan.'lO Paige, 386. But see Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. Eq. 194. In Illinois, the authority of the agent signed by his principal, and also memorandum of sale signed by the agent must be in writing. Alberson v. Ashton, 102 111. 50. Specific performance of contract for the -sale of land, made in name of authorized agent cannot be enforced by the agent. Morton v. Stone (Minn.), 39 N. W. Rep. 496. 1 Yanhorne v. Frick, 6 S. & R. 90; McDowell v. Simpson, 3 Watts, 129; 1>rt-itchell V. City, 33 Pa. St. 220. Civil Procedure of Cal., Vol. 2, § 1973 ; Morgan v. Burgen, 3 Neb. 213. 2 Pierce v. Corf, L. R. 9 Q. B. 210; Coles v. Trecothick, 9 Ves. 235; Henderson v. Baruwall. 1 You. & Jer. 387; Conaway v. Sweeny, 24 W. Va. G43. But see Ex parte Sutton, 2 Cox Chan. 84. 3 Spencer v. Field, 10 Wend. 87; Pinckney v. Hagadorn, 1 Duer, 89; Morgan v. Burgen, 3 Neb. 209; Johnson v. Dodge, 17 111. 442; Higgins v. Senior, 8 M. & W. 834; Evans v. Wells, 22 Wend. 324. Story on Agency, § 147, note and cases cited. But see Sharp v. Emniett, 5 Whart. 288. •* Stackpole v. Arnold, 11 Mass. 27. 5 Ante, § 4. Morton v. Dean, 13 Mete. (Mass.) 385; Pinckney v. Haga- 12 CONVEYANCING. CH. I. § 8. The Equitable Doctrine of Part Perf ormaiice . — In nearly all of the States* the rule is well settled that part performance takes a parol agreement out of the Statute of Frauds.- The principle of the doctrine appears to be that " if one of the contracting parties induce the other so to act, that, if the contract be abandoned, ho cannot be re- stored to his former position, the contract must be consid- ered as perfected in equity, and a refusal to complete it in doru. 1 Duer. 80; Clason v. Bailey, 14 Johns. 484. Hut tliis only applies to sales of personal property. In eases of sale of real estate the mem- orandum of the auctioneer must be actually subscribed by the party to be charged. Ohamplin v. Parish, 11 Paige, 40r). ^ Under the laws of Mississippi, Maine, North Carolina and Tennessee, a parol contract for the sale of land will not be enfonted even where there has been a part performance. Fisher v. Kuhn, 54 Miss. 480; Wil- ton V. Harwood, 23 ;Me. 131 ; Barnes v. Brown, 71 N. C. 507; Ridley v. McNairy, 2 Humph. 174. 2 Northrop v. Boone, 66 111. 368; Tilton v. Tllton, 9 N. H. 38."); Wiley V. Bradley, 60 Ind. 62; Parkhurst v. Van Cortland, 14 .Johns. 15; Otten- house V. Burleson, 11 Tex. 87; Stoddert v. Tuck, 5 Md. IS; Mayer v. Adrian, 77 N. C. 83; Williams v. Morris, 05 U. S. 444; llol)bs v. Wetli- erwax, 38 How. (N. Y.) Pr. 390; Bennett v. Abrams, 41 Barb. 619; Wharton v. Stouteubargh, 35 N. .1. Eq. 266; Cannon v. Collins, 3 Del. Ch. 132; Green v. .Jones, 76 Me. 563; Haines v. Spanogle, 17 Neb. 637. In Georgia, the statute requiring the contract to be in writing does not apply when the contract has been fully executed ; where there has been perfonnance on the one side accepted by the other in acc^ordance with the contract; or where there has been such part perfonnance of the con- tract as would render it a fraud of the party refusing to comply if the court did not compel a performance. Code 1882, § 1951. And many of the States requiring the contract to be in writing provide that ''noth- ing herein is to abridge the power of a court to compel specific perform- ance of agreements partly performed." Alabama, Code 1876, § 2123; Arizona, Comp. Laws 1877, § 2123; California, Hitt. Code 1876, § 6741 ; Colorado, Gen. Stat. 1883, 1.519; Dakota, cited also Civ. Code, § 993; Idaho, Gen. Laws 1881, Civ. Code. § 936; Indiana, Rev. Stat. 1881, § 4908: Iowa, Miller's Rev. Code 1880, § 3665; Michigan, How. An. Stat. 1882, § 6183; Minnesota, Gen. Stat. 1878, ch. 41, § 13; Montana, Gen. Law, 164; Nebraska, Comp. Stat. 1881, pt. 1, ch. 32, § 6; Nevada, Comp. Lawsf 1873, §287; New York, Rev. Stat. (Banks Bros. 7th ed.) pt. 2, cii. 7, tit. 1, § 10; Oregon, Civ. Code, § 772; Utah, Comp. Laws 1876, § 1011; Civ Code, § 1207; Wisconsin, Rev. Stat. 1878, § 2305. In Alabama and Iowa, specially of sales of land where the purchaser has been put in possession by the vendor and part of the purchase money paid. Iowa, Miller's Rev. Code 1880, § 3665; Alabama, Code 1876, § 2123. ART. I. (;()NTUA(rrs for purchase and salk. i;; law is ill tlio nature of a fraud.' Thus, where, upon a parol agreement for the purchase of an estate, a party, not other- wise entitled thereto, has been let into possession of the j)remises and made permanent and valuable improvements thereon, ecjuity will generally enforce a specific perform- ance of the contract.'- And it cannot be shown in avoid- ance of such performance that the benefits received from the use of the lands fully or more than compensated him for all improvements and expenses.^ The possession must be open, notorious and exclusive.* And where the pos- session is held under a pre-existing tenancy, and not in pursuance of the parol agreement, the general principle 'Bowers v. Bowers,!)") I'a. St. '477; Chambers v. Ala. Iron Co., 67 Ala. 353; iJreekinridge v. Clinkinbeard, 2 Litt. (Ky.) 127; Arjjuello v. Edinger, 10 Cal. 150: Larison v. Burt, 4 W. & S. 27 ; Horn v. Ludiugton. 32 Wis. 73; Paine v. Wilcox, 10 Wis. 202; Ham v. Goodrich, 33 N. H. 32; Williams v. Morris, 05 U. S. 4.57; Ponce v. INIcWhorter, 50 Tex. 562; Foxcraft v. liOster, CoUes" P-irl. Cases, 108; Cliuau v. Cooke, 1 Sch. & Lei. 22; Peck v. Peck, (Cal.) 19 Pac. Rep. 227. See 26 Cent. L J. 345. 2 Viclers v. Sisson, 10 W. Va. 12; Peckham v. Barker, 8 R.I. 17; Ing- les V.Patterson, 36 Wis. 373; Neales v. Neales, 9 Wall. 1; Guynn v. McCauley, 32 Ark. 97; Fleming v. Carter, 87 111. 565; Troup v. Troup, 87 Pa. St. 149; Pfiffner v. S. & St. P. R. R. Co., 23 Minn. 343; Gregg V. Hamilton, 12 Kan. 333; Fall v. Hazelrigg, 45 Ind. 576; Freeman v. Freeman, 43 N. Y. 34; Ponce v. McWorter, 50 Tex. 562; West v. Bundy, 78 Mo. 407; Jamison v. Dunock, 95 Pa. 'St. 51; Everett v. Driley, (Kan.) 17 Pac. Rep. 661; Peck v. Williams (Ind.), 15 N. E. Rep. 270; Burns v. Fox (Ind.), 14 N. E. Rep. 541; Anderson v. Shockley, 82 Mo. 250; Cutsinger v. Ballard (Ind.), 17 X. E. Rep. 206; Hunter v. Miles (S. C), 6 S. E. Rep. 907. But see Pugh v. Good, 3 W & S. 56. And the right to specific performance is not lost by a temporary cessation of actual x>ossession. Donn v. Stevens, 94 Ind. 181. Where improvements ai-e insignificant and less than value of use of land, specific performance will not be enforced. Eason v. Eason, 61 Tex. 225. Pennanent improve- ments made without possession is not sufficient. Ward v. Stewart 62 Tex. 333. A parol sale, to take effect after the death of the giver, the latter retaining possession till death, not good, no matter what improve- ments he may put on the land. Wooldrige v. Hancock (Tex.), 6 S. W. Rep. 818. 3Mims V. Lockett, .33 Ga. 9. But see Ann Berta Lodge v. Leverton, 42 Tex. 18 ; Eason v. Eason, 61 Tex. 225. * Brown v. Lord, 19 Alb. L. J. 461; Aitkin v. Youilg, 12 Pa. St. 24; Detrick v. Sharrar, 95 Pa. St. 521; Gallagher v. Gallagher (W. Va.), 5 S. E. Rep. 297. 14 CONVEYANCING. CII. I. does not apply,' unless the parties so conduct themselves as to show that they are acting under the contract. ^ Nor does it apply to any acts which do not alter the position of the parties, or which may be set right by damages at law.-' Thus, making a survey of the land, drawing a conveyance, preparing an abstract of the title, and the like acts, do not constitute such a part performance as will take a parol con- tract out of the Statute of Frauds. Neither does the pay- ment of earnest or purchase money.* But if the party cannot be replaced in the same position by a recovery of the money paid, he will generally be entitled to specific per- formance.'' It maybe added that the same principle which establishes a parol contract where the title under it is sus- tained by part performance, is also applicable where the purchaser of real estate has waived by his conduct any ob- jection to the title. *" 1 Brown v. Lord, 19 Alb. L.J. 461; Christy v. Benihart, 14 P:i. St. 260; Sitton v. Shipp, 6.") Mo. 302; Blauchard v. McDougall, 6 Wis. 107; Johustou V Glancy, 4 Blackf . 94 ; VVilmer v. Farris, 40 Iowa, 309 ; Wright^ V. Packet, 22 Grat. 374; Phillips v. Thompson, 1 Johns. Ch, 131; Peek- ham V. Balch, 49 Mich. 179; Moore v. Gordon, 44 Ark. 334; Clark v. Clark (111.), 13 N. E. Rep. 553; Wainmau v. Hampton (N. Y.), 18 N. E. Kep. 234. 2 Blauchard v. McDougall, 6 Wis. 167; Spalding v. Conzelman, 30 Mo. 177. sparkhurst v. Van Cortland, 1 Johns. Ch. 274; Graham v. Theis. 47 Ga. 479; Moj'er's Appeal 105 Pa. St. 432; Recknakle & Schmalz (Iowa), 33 N. W. Rep. 365. 4 Cliuan v. Cooke, 1 Sch. I't Lef. 22; Ham v. Goodrich, 33 N. II. 32: Buckmaster v. Ilarrop, 7 Vcs. 341 ; Cole v. Potts, 10 X. J. Eq. 67; Wood V. Jones, 35 Tex. 64; Horn v. Ludington, 32 Wis. 73; Poland v. O'Con- ner, 1 Neb. 50; Temple v. Johnson, 71 111. 13: Ilaight v. Child, 34 Barb. 186; Jackson V. Cutright, 5 Munf. 308; Ilelllin v. Milton, 69 Ala. 354; Felton V. Smith, 84 Ind. 254; Towusend v. Fenton, 30 Minn. 528; Mc- Pherson v. Wiswell, 16 Neb. 625; Forrester v. Flores, 64 Cal. 24; Anson V. Towusend (Cal.), 15 Pac. Rep. 49; Gallagher v. Gallagher (W. Va.), 5 S. E. Rep. 297; Ducic v. Ford (Mont.), 19 Pac. Rip. 41. Marriage not itself sufficient part performance. Peck v. Peck (Cal.), 19 Pac. Rep. 227: But see Sykes v. Bates, 26 Iowa, 521 ; McMurtrie v. Bennett, Ilarr. Ch. 124; Arnold v. Stephenson, 79 Ind. 126. ■' Malins v. Brown, 4 N. Y. 403. See Towusend v. Houston, 1 Ilarr. 541; Munn v. Fabian, L. R. 1 Ch. App. 34; McMurtrie v. Bennett, Harr. Ch. 124; Slingerland v. Slingerland (Minn.), 39 N. W. Rep. 146. '^ Taking possession and doing acts of ownership after he is aware that ART. I. CONTRACTS FOR PURCHASE AND SALK. 15 The principle is well established that, if one person expends his money in making beneficial improvements on the land of another upon the faith of a parol contract by the latter to convey, where specific performance of the contract cannot be decreed because of uncertainty in the proof of its terms, a court of equity will decree compensation, to the extent of the value of such improvements, and, in some cases, will grant relief by declaring the same to be an equitable lien upon the property.^ § 9. The Effect of the Contract, and Herein of Spe- cific Performance. — The result in equity of a contract of sale is that the vendor is considered a trustee of the land for the vendee, who is likewise regarded as a trustee of the purchase-money for the former.'- From whence it follows that the purchaser is entitled to the rents and profits of the estate from the date fixed for the completion of the con- tract, and the vendor is entitled to interest on the purchase- money for the same time."^ But this rule is liable to excep- tions. For example, where the interest is much more in amount than the rents and profits, and the delay in complet- ing the contract is clearly made out to have been occasioned by the vendor, he will not be permitted to gain an advan- tage by his own wrong. In such case, wiiere a defect in the title is the occasion of delay, the day at which the inter- change of properties is treated as taking place is removed objections exist, or simple acquiescence, may be taken as presumptive evidence of an intentional waiver. Palmer v. Richardson. 3 Strob. Eq. 16. If the vendee wishes to rescind the contract he must give up pos- session or do some other act indicating his intention. Thompkins v. Hyatt, 28 N. Y. 347; Mullin v. Bloomer. 11 Iowa, 3G0. 1 MciSTamee v. Withers, •]7 IMd. 177 ;, King's Heirs v. Thompson, Peters, 204; Hoyt v. Hunt (Colo.), 1.^ Pac. Rep. 410; Woodbury v. Gardner, 77 Me. 68; Bowman v. Wolford, 80 Va. 213; Irwin v. Dyke, 114 111. 302; Neale v. Neale, 9 Wall. 1 ; Dawson v. McFaddin (Xeb.), 34 X. W. Rep. 338. But see Abbott v. Baldwin, 61 X. H. 583. 2 Seton V. Slade, 7 Ves. 265; Champiou v. Brown, 6 Johns. Ch. 398; Springle v. Shields, 17 Ala. 297. 3 Wing V. McDowell, Walk. Ch. 175; Stevenson v. Maxwell, 2 N. Y. 408; Pierce v. Xichols, 1 Paige, 241; Jones v. Jones, 49 Tex. 683. 16 CONVEYANCING. CH. 1 from the time fixed for coinplotiou to the time at which a good title is first shown. ^ When equity will compel s{)ecific performance of a con- tract, is a subject of enormous dimensions. We shall only attempt a very general statement, and refer the reader for the learning under this head to works which treat more especiall}' upon that subject.^ In the first place, the equity jurisdiction to enforce specific performance depends upon the inadequacy of the remedy afforded at law, which is an action for damages. And this may result either from the inadequacy of the damages, or from the impossibility of ascertaining such damages.'^ In an agreement to convey land, a penalty added to secure its performance, expressly inserted as " liquidated damages," will not deprive the party injured of his right to specific i)erformance.* Though, if the contract were to do one of two things, namely, to con- vey certain lands or pay a certain amount of money, it would be satisfied by the payment of the money, and there would be ground for equitable procedure against the party having the election.'' But the case must be such that the party can be fully and clearly indemnified and placed in statu quo.^ In the next place, the mutual enforcement of the contract must be practicable. That is to say, the con- tract must be one which the defendant can fulfill, and the fulfillment of which on the part of both the plaintiff and 1 Joues V. Mudd, 4 Ru.«s, 118; Paton v. Rogers, G Mad. 236; Springle V. Shields, 17 Ala. 297. 2 See 27 Cent. L.J. 228, for full statement of the general doctrine. 3 Barnes v. Barnes, 65 N. C. 263; Williams v. Howard, 3 Miirph. 74; Sullivan v. Tuck. 1 Md.Ch. 59; Ferrier v. Buzick, 2 Iowa, 138; White v. Schuyler, 31 How. P. 38; Aston v. Robinson, 49 Miss. 352. Where, as in North Carolina, the statute expressly declares that contracts to convey land shall be registered, specific performance of an unregistered con- tract will not he decreed. White v. Holly, 91 N. C. 67. ^ Dooley v. Watson, 1 Gray, 414; Hooker v. Pynchon, 8 Gray, 550; Daily v. Litchfield, 10 Mich. 30; Hull v. Sturdevant, 46 Me. 34. 5 Skinner v. Dayton, 2 Jolins. Ch. 526; Mather v. Scoles, 35 Ind. 1; Patterson v. Cunningham, 12 Me. 506. 6 Skinner v. White, 17 Johns. 357. ART. I. (ON TRACTS FOR PURCIIASK AND SALK, 17 defendant can be judicially secured.' l^'or instance, specific performaiKH^ will not be decreed against a vendor who has no title.- JUit otherwise, if the vendor can make a good title on the final hearing of the bill for specific perform- ance.'^ Nor will specific performance be enforced unless the contract be complete and certain, both as to parties and price and subject-mattei'.* And lastly, the contract must be supported by a valuable considei-ation, or at least by what is termed a meritorious consideration."' But mere inadequacy of consideration is not sufficient ground for setting aside the transaction, unless it be so gross as to raise a presumption 1 Pack V. (;;iither. 7:'. \. (J. ".»."): Fcnicr v. liuzick, 2 Iowa, ]'M>: Dixon V. Kiee, -2:5 X. V. Sup. (t. 4-1-2: Lo^aii v. Bull, 78 Ky. ()07; Hopkins v. Itoherts. r)4 Md. IMi; Duff v. Hopkins, W.] Fed. Rep. onO; Steuibri(l«,^e v. Stenibrid*je (Ky.), 7 S. VV. Kej). Oil. - Brueggeman v. Jurgensen, 24 Mo. 87; Nicol v. ( "arr, :5.") Pa. St. :5S1 ; Fitzpatrick v. Featheistoue, '^ Ala. 40; GrifHn v. (Juuningliain, I'.i Graft. :)71: Shields v. Traniuicll, 1!) Ark. 51 ; Jeffiies v. .Jeffries, 117 Mass. 184; ])ol)bs V. Noreross. 24 \. J. Eq. :'>27; Walton v. Meens, 41 Hun, :U1 : Middleton v. Selby, ID W. Va. 168; Cornell v. Andrews, :{5 N.J. p:(i. 7; Xoyes V. Johnson. i:5i) Mass. 436. But where the vendee is willing to accept vendor's title, the vendor cannot plead a defect therein. Gart- nell V. Stafford, 12 Neb. :^M>; Chrisman v. Partee, 38 Ark. :U ; Adams v Valentine, 33 Fed. Rep. 1. Agreement to make conveyance "with full warranty only against " his heirs and representatives he is bound onlj' to convey such title as he has. Thompson v. Hawley, 14 Oreg. 1!)!). If the vendee knows that vendor is a married man at time of making con- tract he cannot refuse to take such title as vendor can give. Fortune v. Watkins, 94 N. C. 304. The doubt (as to title) must be more than a mere possibility. Webb v. Chisolm, 24 S. C. 487. >Tiee v. Freeman, 30 Minn. 389; Mathews v. Jarrett, 20 W. Va. II.'); Sutton V. Myrick, 39 Ark. 424 ; Los Angeles Co-operative Assn. v. Phillips, .■)6 Cal. .")39. Nor will eouits enforce that which is only the basis of an agreement and not the contract itself. l.osee v. Morey, .■>7 Uarb . .")()!; Westfall v. ("athilly. 24 W. Va. 703; Ryan v. Davis, .1 Mont. 50."); I>itterall v. Jaekson, 80 Va. 604; Reed v. Reed, 93 N. C. 462; Wagon- beast V. Whitney. 12 Oreg. 83; Magee v. Mc:Mannis, 70 Cal. 5.")3. ^ Nichol v. Xiehol. 60 Tenn. 146; Hepburn v. Auld, 5 Craneh, 262; Seymour v. Delancey, 3 Cow. 445; Pierce v. Nichols,! Paige, 244; Jen- kinson v. Fahey. 73 X. Y. 3.-)5; Logan v. Bull, 78 Ky. 607; Oakey v. Cook, 41 X. .r. E(i. 3.50. And s(>e Creigh v. T.oggs, 19 W. Va. 240. •"• Allen V. Davison, 16 Ind. 416: Lear v. Chouteau, 23 111. 39; Tierman v. Poor, 1 Gill iV; .1. 22S: Modisett v. Johnson, 2 Blackf. 431 : Va78; Abbott v. L'lloinmedieu, 10 W. Va.G77; Curlin v. Hendricks, 3") 'J'ex. 225; Aston v. Robinson, 4!) Miss. 388; Popplein v. Foley, Gl Md. :?S1. Consideration of support for life not sufficient. Ikerd V. Beaver, lOfJ Ind. 4S3. And see Bourget v. Monroe. r)S Mich. 5G3. 'Andrews v. Andrews, 28 Ala. 432; Harrison v. Town, 17 Mo. 237; Seymour v. Delancey. 3 Cow. 445, and English cases cited; s. c, (5 Johns. Ch. 222; Shepherd v. Bevin, !) Gill. 32; ITale v. Wilkinson, 21 Gratt.75; White v. McGannon. 20 Graft. 511 ; Butler v. Haskell, 4 Desau. 687; Hardeman v. Buro^e, 10 Yerji'. 202: Powers v. Hale, 25 N. H. 152: McCormiek v. Malin, 5 Blackf. 500; iieady v. Noakes, 29 X. J. Eq. 499; Yiele v. Troy A Boston R. R. Co.. 21 P.arb. 3S1 ; Shaddle v. Disboroiigh, 30 N. .1. K(i.370. - Morrison v. Peay, 21 Ark. 110; Rader v. Xeai, 13 W. Va. 388; Gosse V. .Tones, 73 111. 508 ; Bruck v. Tucker. 42 Cal. 340 ; Maroraf v. Muir, 57 N. Y. 155; MeCliutock v. Laing, 22 Mich. 212; Astor v. Robinson, 40 Miss. 048; Snell v. Mitchell, 05 Me. 48; Shimer v. The Morris Canal Co., 27 N. J. Eq. 3G4; Tierman v. Gidney, 24 Wis. 190; Sclimeling v. Kriesel, 45 AVis. 325, distinguishing Waterman v. Dutton. G Wis. 204; Taylor v. Williams, 45 Mo. 80; Grier v. Rhyne, Oi) X. C. 34(). 3 Kelley v. Sheldon, 8 Wis. 258; Osborn v. Phel[.s, 10 Conn. 63; Whit- aker V. Bond, 03 N. C. 290: Fiso v. Leser, 60 HI. 394; Stevenson v. Bux- ton, 15 AJ)b. Pr. 357, and note; Berry v. Whitney, 40 Mich. 65; White and Tudor Eq. Cas. Vol. 2, pt. 2, p. 1041, and cases cited. Race v. Weston, 80 111. 01; Craigh v. Boggs, 10 W. Va. 240. * Moody V. McCawn, 39 Ala. 595; Doe v. Smith, East. 530; Jackson ART. 11. DKEDS 3IAY BE OF WHAT MATKKIAL. 19 use the formal jukI apt woi-ds of conveyance, yet if from other parts of the instrument, taken and compared together, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail ' ARTK7.E II. DEEDS MAY BE OF WHAT MATERIAL. SECTION. i;$. Definition of deed. 14. Must be written upon paper or parchment. 15. Maj- be printed, or part printed and part written. IG. Should be written or printed with ink. § 13. Definition of Deed. — A deed is defined by the elementary writers to be "a writing sealed and delivered by the parties."- The name deed, in Latin factum^ is applied to it because it is supposed to be the most solemn and authentic act that a man can possibly perform with reference to the disposal of his i)roperty. Therefore a man shall be estopped by his own deed, and will not be permitted to aver or prove anything in contradiction of that which he has once so solemnly and deliberately avowed.-' The law has thrown around deeds many o-uards designed to V. Clark, 3 Jolin.'*. 424: Atwood v. ("obb, IC Pick. -Ill : Ives v. Ives. 1:5 Johns. 23."); Jack.sou v. Kisselbraek, 10 Johns. 335. 1 Jackson v. Myers, 3 Johns. 395; Jackson v. Montcrief, 4 Wend. 215; Stouffer V. Coleman, 1 Yeates, 393; Neave v. Jenkins, 2 Yeates. 107; Sherman v. Dill, 4 Yeates, 295 : Jackson v. lilodgett, 10 Johns. 172. See Webb V. Mullins, 78 Ala. 111. Under Code 187(J, Ala., § 204S, any instrument in writing, signed hy the grantor, or his agent having a writ- ten authority, with or without a seal is effectual to transfer the legal title if such was the intention. Tatum v. Tatum (Ala.), 1. South. Ke]). 195. - Co. Litt. 171. While no prescribed form is essential to the validity of a deed, there must be enough to show an intention to convey. Bell V. McDuffie, 71 Ga. 2G4. See also Tatum v. Tatum (Ala.) . 1 South. Rep. 195. " Plowd. 434: 2 Bl. Com. 295. 20 CONVEYANCINCi. (11. 1. ])ix'seivo iheir .-olciuii and authentic chaiactcr, some of which we shall proceed to mention. In nearly all the States by statute no interest in real estate can be conveyed or assigned or created without a deed.^ § 14. All Deeds must be AVritten upon Paper or Parelimeiit. — The reason given for this rule is that such materials are less likely to be altered, vitiated or corrupted. - It must be confessed, however, that at the })resent day this assumption is not by any means self-evident. And it is dirticult to understand whv anv other niaterial of a suitable nature should not be deemed suffi<;ient. Pi'evious to the passage of the English Statute of Frauds, conveyances of land were usually without writing, and evi- denced by overt acts, by which seizin was given. But by the above statute," all estates and interests in lands "made or created by livery and seizin only, or l)y j)arol, and not l)ut in writing and signed by the parties so making or cre- ating the same, or their agents thereunto lawfully author- ized by writing, shall have the force and effect of leases or estates at will only,'" excejjting "all leases not exceeding the term of three years," thus rendering a writing neces- saiy in the conveyance of land. This statute has been either impliedly accepted or ex[)ressly adoj^tcd in all of the United States. The laws of most States specially' require all deeds of real estate to be in writing and signed by the party making them.^ § 15. A Printed I>eed, <>r Part Printed and Part Written, is a sufficient compliance with the Statute of Frauds, that all deeds shall be in writing; and it would seem by analogy to agreements for deeds required by the statute, that a printed signature is sufficient, if it appear to have been so intended.'* But it was held not a sufficient 1 See Stinisou Anier. Stat. Law. p. !!)(;. § 1560. - 1 Co. Litt. 299o,- \Voo(l, Conv. l-JC: Shep. Touch. 50, 54: •_> HI. ( oiii. 2i)7. •*2!» Charles II., ch. 3. vj§ 2, :{. ■• See as to the different provisions Stiinson Amer. Stat. Law. p. liiG. ij 15ti0. •'■ Browne uu Stat, of Frauds, j 35(5; Sandcr-oii v. Jack^ou, 3 E*p. Isl ; AIJT. n. DKKDS MA-i UK Ol WHAT .MATKKIAI,. 21 signing within the Statute of Frauds of New York, which required the instrument to be subscribed.' It is presumed that a i)rinted signature to a deed would be held insufficient wherever signing is essential. It may be remarked under this head that, in an instrument which is part printed and part written, if one part be inconsistent with or repugnant to the other, preference will geneiallv be given to the writ- ten part.- § It). It is Usual that a Deed is Written uv Printed and Subscribed with Ink, as that is, in general, the most difficult to l)e effaced. In the case of a memorandum, which the Statute of Frauds requires to be in writing, and subscribed by the party to be charged, writing with a lead pencil has frequently been held to be as valid as with pen and ink.-' But the question as to whether a deed written and subscribed with a pencil is void, does not seem to have arisen. Prudence would, at least, seem to dictate the use of pen and ink until the legislature or higher courts sanction a diiferent mode. Sellers V. Sellers (X. ('.). :', S. E. Kei). '.)17. The signature of grautor in 11 deed written by another at iiis request, or adopted by him as his own. has ttie same validity as if written by him. Conlon v. Grace rMiuu.), 30 X. W. Kep. 880; Xye v. Lowry, 8J hid. 31(>. See San- ders V. Hackney, 10 Lea (Tenn.). 1!)4; Gaston v. Weir (Ala.), 4 South. Rep. 258, as to effect of deed wlien grantor's name is not subscribed to it. ' Vielie v. Osgood, 8 Uarb. V.V2; Davis v. Shields, 2(i Wend. :!.')!. - -2 Par. Cont., 6th ed. 51(5; Robertson v. French, 4 East, l:iO; Weisser V. Maitland, 3 Sandf. 318. •■' Merritt V. (Mason. 12 Johns. 102: Davis v. Shields, 2t; Wend. 354; Sanderson v. Jackson, 2 Bos. i^ Pul. 238. 22 COWKVANCING. • CU . I. ARTICLE III. ^lUST BE COMPLETELY WRITTEN BEFORE DELIVERY. fKCTION. 18. Alterations, to be valid, must be made before delivery, lit. Burden of proof. 20. Kxecuted cotitraet not affected by subsequent alterations. 21. Filling up blanks. § 18. Alteration Must be Made before Delivery. — A blank, signed, sealed and delivered, and then lilled up, is no deed; but a deed may be signed and sealed and then filled up, if this is done before delivtuy,^ Any alteration made after delivery will either avoid the deed or will be of no effect. If the contract thereby evidenced is an executory one, any fraudulent alteration will avoid it; ^ but if the alteration be in an unimportant matter and made by a stranger without the knowledge or assent of the holder, or by consent of the maker, it will not affect the deed — it may yet be read as it was originally executed.^ A material alteration of a sealed instrument, if made ])y a party claiming to recover upon such instrument or by any })erson under him, renders it void.* It is a well settled rule that 1 Simnis v. Ilervey, 19 Iowa, 190; Duncan v. Hodges, 4 McCord, 239; Perminter v. MeDaniel, 1 Hill (S. C), 297; People v. Organ, 27 111. 29; Gilbert v. Antboiiy,! Yerg. 09: Wynne v. Governor, /d. 149; McGlungv. Steen, :{2 Fed. Rep. :{7."). And see as to alterations of mortgage. Heath V. Blake (S. C.^ 5 S. K. Rep. 842. ^ AVallace v. Harmstad, 15 Pa. St. 402. :' Sbep. Toucb. 09: Com. Dig. Fait. F, 1 ; Malin v. Malin. 1 AVend. 02.5; Waring v. Smyth, 2 Barb. Ch. 11!); Lee v. Alexander. 9 B.Mon.2.>; Robertson v. Hay, 91 Pa. St. 242; Moore v. Ivers, 83 Mo. 29. And see Havens v. Osborn. 30 X. J. Eq. 420. " Waring v. Smyth. 2 Barb. Ch. 133; Com. v. Hanion, 1 Xott I't Me. .').")4; Ileffelfinger v. Shutz. 10 Serg. & R. 44; Hatch v. Hatch, 9 Mass. 307. And it seems from some of the authorities that any alteration of an instrument, though immaterial, if made by a party claiming a benefit under it, avoids it so far as resi)ects the remedy by action on it. Nun- nery V. Cotton, 1 Hawks. 222; Wriijht v. Wright, 2 Halst. 17-'); Lewis v. ART. III. MUST r.i: COMI'LKTELY WIUTTEN. 23 an altemtion, even in a niatciial part, may be made in a deed, after execution, if it is proved to have been done by consent of all the parties.' A deed thus altered in a mate- rial part takes effect from the time of its alteration, as a re-execution of it.'-^ § 19. Burden of Proof. — Where an alteration, such as an erasure or interlineation, appears on the face of an instru- ment, the question as to when the same is presumed to have been made, is not well settled. On the one hand, it is argued that the l)urden is upon the party having the instrument in possession, or offering it in evidence to prove its genuine- ness;'' or, in other words, that such alterations are presumed to have been made after its execution and delivery.^ Hut this has been denied as contrary to the principle of the law, which never presumes wrong.'' Jt has also been held that Payue, S Cow. 71 ; Hunt v. Adams, (! ^lass. T)!!): Bank of Tiimestoiic v. Peiiick, 5 ^Monroe. :?1 ; .lolmsoii v. Mooiv, i'.i Ivan. !J0. lint .see contra, Nichols V. Jonson, K) ( Otin. 1!)2. Material alteration by a stranger does not affect its validity. Robertson v. Hay, 91 Pa. St. 242. ' AVoolcy V. Constant, 4 .lohns. R. 54; Speake v. United States, 9 Crancb, 2S; Harrini;tuestion of consent is for the jury, but whether it is a material alteration is for the court. Keen v. Monroe, 75 Va. 424. 2 Penny v. Corwithe, IS Johns. 499; Tompkins v. Corwin, 9 Cow. 2.55, ' United States v. Linn. 1 How. 104; Clifford v. Parker, 2 Mann. &, G. '.)()!l; Kly v. Ely, (> Gray, 439, 441. See 1 Grcenl. on Ev., § .564; Smith's Lead. Cas., 5th Am. Ed. 9()1 ; Robinson v. Myers, 67 Pa. St. 9. As to lease. Burguin v. Bishop, 91 P. St. 336. ■• Montag v. Linn, 23 HI. 551; Van Horn v. Bell, 11 Iowa, 465; Acker V. Ledyard, 8 Barb. (N. Y.) 514. But compare Pullen v. Shaw, 3 Dev. (N. C.) 23S; IVevost v. Gratz. 1 Pet. C.C.R. 364; Dow v. Jewell, IS N. H. 340; Morris v. Vanderen, 1 Dall. 67. •'- Doe V. Catamore, 16 Ad. & E. (.\. S.) 745; 1 Greenl. on Ev., § 564. note. 24 COiW EYANC'IiNO. CH. 1. material alterations are presumed to have been made l)efore execution of the instrument.' llie latter a[)pears to be the better opinion, if, indeed, any presumption whatever is to be indulged in, unless peculiar circumstances of sus[)icion are patent upon the face of the instrument; and even then, the whole question is one for the jury to settle upon the facts, when, where and with what intent the ;dteration was made.- § 20. Considered as an Executed Contract, a deed cannot !)e affected by any subsequent alteration. Even its cancellation or destruction will not, of itself, revest in the grantor the title which has once passed, although it may have been done by mutual consent and for that purpose.-* But a different rule seems to prevail in New Hampshire. In that State the re-delivery bv the grantee to his grantor of an unrecorded deed, with the intention and for the purpose of 1 Gordon v. Sizer, ?><.) Miss. SO."); Kni«ilit v. CU-iiieut. S Ad. & E. •_'!:); Hniley v. Taylor, 11 Conn. 5:^1 ; Mathews v. Coalter, It Jlo. 0!)(i; llerrick V. Malin, 22 Wend.;3S8: Wiekes v. Caulk, :> Har. & J. 30; Cox v. Palmer. 1 McCrary C. ('. 4:!1: Haltoii v. Kemp, si Mo. (iCl ; I5anks v. Lee. 7:5 Ga. 25. - McCormlek v. Fitzmorris, ol) Mo. :!4 ; Robinson v. Myers, (;7 I'a. St. '.>: Little V. Ilerndon, 10 Wall. 2(5; Cole v. Hills, 44 X. H. 227: Beanian v. Russell, 20 Vt. 20."): Smith v. >r('Gowen, :5 Barb. 401: 1 (ireenl. on Kv.. § :au. '■■ Woods V. llilderbrand, 40 Mo. 2S4; 'I'ibeau v. Tibeaii, 111 Mo. 7s : Straw.n v. Norris, 21 Ark. 80: Fonila v. Saye, 4() Barb. lOH: Parshall v. Shirts, r)4 Barb. 90; Linker v. Long, 04 N. C. 2iMi: .lackson v. (Jould, 7 Wend. ;5()4. But a material alteration avoids the deed so far as an action on the covenant is concerned, llerrick v. JMaliu, 22 Wend. I>SS; Chess- man V. Wiiittemore, 2:5 Tick. 2:J1 : Wallace v. ITarnistad, 1.") Pa. St. 4(J2. Tlie statutes of California and Dakota provide tliat the destruction or cancellation of a written contract, or of the siiinature of the parties lia- ble thereon, svith intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. 'I'he intentional destruc- ti(jn. cancellation, or material alteiation of a written contract, by a ]»arty entitled to any beiielit unih'r it, or with his consent, extinguishes all the executor}' ol)ligations of the contract in his favor against parties who do not consent to the act. Where a contract is executed in duplicate, an alteration or destruction of one Copy, wliile the other exists, is not within the provisions of the last section. California, Hitt. Code 1870, §j IG'Ji), 1701 ; Dakota. Civ. Code, §§ 970, 972. m;t. III. ■\irsr iw: (omi'lhtklv ukittkn. • 2r» ro-vcsting the title in the gnuitor, if there be no sub.sistiiig equities in third parties, re-vest.s the title accordingly, upon the pi-iiK'ii)le of estoppel.' And in Indiana, where a grantee surrendered an unrecorded deed back to his frantor to he 2. ■• Withers v. Atkinson. I Watts. 23G: Chesley v. Frost, 1 X. 11. H.'>; Habl) V. Clenisou, 10 Ser<;. ii K. 410; Xewell v. Mayberry, ;{ TamijIi U 2:)(): Bliss V. Melntyre, 18 Vt. 4(>(;; Wood v. llilderbrand, 4(1 Mo. 2S4. ■• xMoore v. Sotter. :5 Bulstr. 70; Lewis v. Payne. S Cow. 71 : 1 Nets Ab. 625; Bliss v. Mclntyn-, is Vt.'4()C.. " Doe V. Hirst, :? Stark. P. c. I: .i.u-k-'oii v. Gould. 7 U'.-nd. I'.'U : L.-uin V. Paviif. s Cow. 71 . 26 ' CONVEYANCING. CH. I. and they are tilled up after execution and deliver^s the deed will be void.^ On the other hand, a blank in a deed or bond, otherwise perfect, and where the words inserted would be implied by construction, may be tilled up, if done with the consent or authority of the grantor or obligor.- It was held by Lord Mansfield in Texira v. Evant<^^ that a bond was valid which was given with the name of the obligee and sum of money in blank to a broker to obtain money upon it, and he borrowed a sum from the })laintiff, and then inserted his name and the sum. But this case has been severely and justly criticised.^ and in so far, at least, as it decides that the leaving of a blank for the amount of money to be inserted will not invalidate the deed, does not seem to have been extensively followed, and has been directly over- ruled in a later English case.^ In Pennsylvania, New York and Alabama the law of Texira v. Evans has been to a cer- tain extent recognized, and it has been held there, as in some other States, that the execution is not invalidated by the insertion of the grantee's name, after delivery, in accord- ance with the intention of the jrrantor, express or implied.*^ ' lajriaiii V. Mttle. 14 G:i. 17:^; Lockhart v. Koltcits. :{ Bibb, 3G1 ; Har- rison V. Tieniaus. 4 Rand. 170; Panniuter v. McDaniel. 1 Hill (S. C"), 267; Hibbh'white v. McMoriui', (J M. & VV. 200; Gilbert v. Anthony, 1 Yerg. (51); Ayres v. Harnes. 1 Ohio. 17:5. 2 As to extent of this principle, anil what blanks may thns be filled np, see the opinion of Marshall. C. .).. in United States v. Nelson. 2 Brork. 64. Effect of omission of name of grantee. Shei)pard v. Harrison. r)4 Tex. 1)1. Deed to which name of grantor has been attixcd by grantee is valid. < 'longh v. ('lough. 73 Me. 4S7. 2 Cit. 1 Anst. 228. ■• Shep. Touch., notes by Preston. (iS. •'• Hibl)lewhite v. McMorine, (5 M. & W. 213. But see AVooley v. Con- gtaut, 4 .Johns. 511; Sigfried v. Tievan. S. it M- 3()S. « Stahl V. Berger. 10 S. tt K. 170; Ex parte Kerwin. 8 Cow. 118; Dun- can V. Hodges, 4 McOord (S. C.),239; Knapp v. Maltby, 13 AVend. r)87; Ex parte Decker, 6 Cow. 60; Kortright v. Commercial Bank of Buffalo, 22 Wend. 348; Devin v. Himer, 29 Iowa, 300. But see Chauncey v. Arnold, 24 N. Y. 330; Burns v. Lynde. 6 Allen. 305; Drury v. Foster. 2 Wall. 24; Sinuiis v. Hervey, 19 Iowa, 274; Viscr v. Rice, 33 Tex. 156. Consent may be implied. Smith v. Crooker, 5 Mass..53S: Hale v. Uuss, 1 Greenl. 334; Hunt v. Adams. 6 Mass. 5111; Brown v. l*inkham. IS Pick. 172. Held in California that such deed in name of grantee inserted AKT. III. MIST I5i: COMPLKTKLV WRITTKN. l'7 And in a recent case in Texaci it was held that, when a party delivers a deed duly executed, with |)arol authority to fill blanks, and this is done, he is estopped from deny- ing its validity against a subsequent })urchascr for value, and without notice of the manner in which the deed was executed.^ It was at one time doubted whether a deed executed in blank and placed in that condition in the hands of a third l)arty with parol authority to till up the blanks in the absence of the maker and then deliver it, would be valid when so delivered. The better opinion at this day is that the power is sufficient.- It is believed that in the cases which hold a different view it will generally be found that the blanks were fraudulently tilled contrary to the inten- tion of the grantor.-' A married woman, who is disabled in law from delegating a power, cannot authorize a third party to fill up blanks and deliver her deed.^ There can be no acknowledgment as contemplated by the statue until the blanks are tilled and the instrument complete."' Though in ^lassachusetts the court held that, when a deed was signed by a wife, before the description of the land or any other writing had been made in the deed, in an action upon the covenant of warranty ay, 19 Iowa, 288. *" Furnas v. Durgin, 11!» Mass. .")01. 28 ( 0.\\ KVANCINO. Cll. I. AKTICLK IV. OF '11 IK I'AR'lIlvS TO A 1>KE1). SKCTION. 2ii. All persons conipctcnt. except tli(>>e under >j)pci:il disability, 24. As to a disseizee. 25. Infants. 2(>. Persons of non-sane mind. 27. Married woman. 28. Duress. 29. Undue iutluence. :W. Intoxication. 31. Joint tenants. 32. Deed from liushand to wife. 33. The capacity of grantees. 34. Pai'ties must he in rssf at tlie time of tlie convevanee. § '2o. All Persons in Possession are Prima Facie Ca- pable both of Conveying- and Purchasing, unless the law places them under some particulaf disability on account of infancy, coverture, want of reason, duress, or where from other causes they are disqiuditied from making a conveyance of any })articular estate.^ And many persons who are thus rendered incapable in .a certain degree may, in some mode and to some extent, alien or acquire title to land. In this count rv the right of alienation of land is almost unlimited and unrestricted. Under the common law, the practice of subinfeudation [jractically prevented or restricted alienation until the statute f/^n'a empforeK 18 Edw. I. gave every freeiiolder a right to sell all or part of his land, and, as it is said, secured free alienation of land .and abolisiied any tenure between grantor .and grantee.'- This statute has ' ••All persons owninf>; lauds not held by an adverse possession shall be deemed to be seized and possessed of the same.'' Iowa, Miller's Rev. Code ISSO, § 1!)-2S; Kansas, Comp. Laws IST'i. eh. '22. Jj 1. See also Stim- son's Amer. Stat. §§ 1104, llO."), 141(i. - 1 Washburn, Real Prop, (."itli Ed.) .">!). CS. Alir. IV. I'Airi'IKS TO A DKKl). 2U been adopted Jis a part of the common law in most of llie States,' but has not been adopted in Pennsylvania. - § 24. As to a Disseizee. — It is a very ancient rule of law that rights, not reduced to possession, should not be assi^ni- able to a stranger, on the ground that such alienation tends to increase litigation. The common law regarded the con- veyancc of land of which one was disseized as champertous and an act of maintenance. Similar statutes airainst the granting of pretended titles have been enacted by several of the States.-' In those States, a deed, made by one against whom the land conveyed is held adversely by claim of title, is inoperative to convey the legal title as against the party who has the actual seizin.^ But though the deed would be void as to the person holding adversely at the time it was made, and to those claiming under him, between the parties and as to the rest of the world it would be effectual and valid."' And it has been held that, when the deed of a per- ' Van Rensselaer v. ITays. 1!) N. Y. 60. - Ingersoll v. Sergeant. 1 Whart. 337: Franciscus v. lieigart, 4 Watts, !>S; 2 Sbarswood Bl. Com. 42 «; Wallace v. llarmestad, 44 Peun. St. 405. 3 Jaeksou v. Ketehuni, S .Tohns. 475); .Tackson v. Andrews, 7 Wend. 152; Murray v. Ballon, 1 Johns. Ch. 573; Ludlow v. Kidd, 3 Ohio, 541. Such statutes do not find general favor in this country, and in some of the States have been abolished. Roberts v. Cooper, 20 How. 407. In many States, any person claiming a right or title to real estate, although out of possession, and there be an adverse possession, may sell and trans- fer his interest as fully as if in actual possession. But in other States the common law is followed; and a grant, devise, or conveyance of real estate, made and delivered when the estate is in the actual possession of a person claiming title adversely to the grantor, is absolut«'ly void. Stimson's Amer. Stat. p. 174, § 1401 . In Tennessee, the seller must have been in possession one year before the sale. Code 1884 (Mill. & Vert.), S§ 244G, 2448. Wall. (120; New Hampshire Co. v. Xoyes. :V2 N. 11. 8")1; Voorhies v. Voorbies, 24 Barb. 153; Tucker v. Moureland. 10 IVl. 59, and notes; Drake v. Ramsey, 5 Ohio, 251 ; Cresinger v. AVelch. 15 Ohio, 156; Boody v. McKinney, 23 Me. 517: Gillespie v. Bailey, 12 W. Va. 70; Iluth v. Carondelet, 56 Mo. 202. - Tucker v. Moorland, 10 Pet. 58. MVomack v. Wouiack, 9 Tex. 397; Pursley v. Hays, 17 luwa, 311 ; Stuart V. Baker, 17 Tex. 417; Smith v. Evans, 5 Humph. 70; Badger v. Phinney, 15 Mass. 3511; llillyer v. Bennett, 3 Edw. Ch. 222. But see Miles V. Liugerman, 24 lud. ;585. Hut see Dawson v. Helmes. :'>0 Minn. 107. ^ Gillespie v. Bailey, 12 W. Va. 92. •"' Mustard v. Wohlford, 15 Gratt. 34:5: IJi'diuger v. \\'hartou, 27 Gratt. 857; Boody v. McKinney, 23 Me. 517; Price v. Eurman, 27 Vt. 271; Bobbins v. Eaton. 10 X. H. 502: Eitt< v. Hall. 9 \. 11. 441 : Brantley v. AVolf. 60 Miss. 420. 32 COWin A.\( INC. < II. I. the rule is applicable to executed contract.s.' The court, iu GWeHjne v. Bailey^- without deciding the question in point, it not heiiiir necessarv to the decision of the case, say veiy truly: " It seems to make hut little substantial difference whether the infant who has sold his patrimonial estate and been paid for it in full, and has durino; his infancy wasted the purchase money in extravagance and gambling, has executed a deed to the purchaser at the time of the sale or only siirned a contract to convey the land." As to what acts shall be deemed and taken to be an atlirmance of the deed of an infant, after he has arrived at the age of maturity, and what not, the courts are not agreed. \\'e have collected and cite below a few of the cases in which i)articular circum- stances have been construed as a ratitication, or disatlirm- ance of 5; Goodnow v. Empire Lumber Co.. 31 Minn. -I(i8; Buchanan v. (iriggs, 18 Xeb. 121 ; Vallandingham v. Johnson (Ky.), :5 S. W. Rej). 178: f:ilis v. Alford (Miss.), 1 South. Rep. 15,-). * Heuder.sdn v. .McCiregor, 80 Wis 78; .Johnson v. L'hilci'. Neb. 401 : Hovey v. Hobson, .55 Me. 2.5(1: Miller v. Craig. 8(1 111. TOO; Spee-s v. Sewell. 4 Bush (Ky.). 280; Hovey v. Chase. 52 Me. 804: Davis v. Cul- ver. 18 How. (N. Y.) Pr. ('.2: Riiipy v. Gaiit. A lied. (N. C.) Eq. 448: AllT. IV. TAUTIES TO A DEKD. 33 voidable; but, to set aside a conveyance, it must also be shown that there was fraud in the party contracting, or that some undue advantage has been taken of that weakness, in procuring its execution.^ The deed of an idiot or insane })erson, not under guardianship, passes a seizin, and is only regarded as voidable.- Rut the deed of a person of non- sane mind, who has for that cause been placed under guard- ianship, is void.^ . § 27. Slurried Women. — At common law, the deed of Dennett v. Dennett, 44 N. H. 531; Osterliout v. Shoemaker, ;5 Hill (X. Y.), 37; Odell v. Biu'k, 21 Wend. (N. Y.) 142; Darby v. Hayford, .56 Me. 240; TIalley v. Troester, 72 Mo. 73; Rogers v. BlackwoU. 40 Mich. 192; Cole V. Cole (Xeb.), 31 X^. W. Rep. 4!)3; Stewart v. Flint (Vt.), 8 Atl. Rep. 801 . But see Samuel v. 3Iar.shall, 3 Leigh (Va.) , .587 ; Smith v. Elliot, 1 P. & H. (Va.) 307. 1 Harding v. Handy, 11 Wheat. 103: Anthony v. TTutehings, 10 R. I. 105; Mormon v. Mormon, 47 Iowa, 121; Allore v. Jewell, 04 U. S. 500; O'Conner v. Rempt, 29 X. J. Eq. 150; Morrison v. Morrison, 27 Gratt. 190; McDaniel v. McCoy (Mich.), 36 X. W. Rep. 84: Baldrick v. Gar- vey, 00 Iowa, 14. But see Chew v. Bank of Baltimore. 14 Md. 318; Rig- gin V. Green, SO X. C. 236. Where transaction is unreasonable it is decisive as to question of capacity. Bussey v. Gross (Ky.), 7S. W. Rep. 150. Mere impairment by age, of mental powers does not necessarily incapacitate from making deed: nor does it show undue influence. Kimball v. Cuddy, 117 111. 213. Courts will not set aside contract of persons of unsound mind, where such contract is fair and reasonable, when parties entered into it in ordinary course of business, and where they cannot be placed in stahi quo. Abbott v. Creal. 50 Iowa, 175. Can- not be impeached on ground that grantor was a monomaniac on subject of religion. Burgess v. Pollock, 53 Iowa, 273. And see also Jones v. Hughes, 15 Abb. X. Cas. 141. - Breckenridge v. Ormsby, 1 J. J. Marsh. (Ky.) 236; Soniers v. Pum- phrey, 24 Ind. 231; Gates v. Woodson, 2 Dana (Ky.), 452; Harvey v. Hobson, 53 Me. 451 ; 2 Bl. Com. 291; Ingraham v. Baldwin. 5 Seld. 45; Arnold v. Richmond Iron Works. 1 Gray, 434; Allis v. Billings, 6 Met. 415; Jackson v. Gumaer, 2 Cow. 552; Grouse v. Ilolman, 19 Ind. 30; Freed v. Brown, 55 Ind. 310; Riggin v. Green, 80 X. C. 236; Co enrath v. Kienly, S3 Ind. 18: Bunham v. Kidwell, 113 111.425. But Van Deuseu v. Sweet, 57 X. Y. 383; Farley v. Parker, Greg. 105; Evans v. Horan, 52 Md. 002. 3 Wait V. Maxwell, 5 Pick. 217; Fitzhugh v. Wilcox. 12 Bar)). 235. Guardianship is conclusive as to the disability of the ward. Wadsworth V. Sherman, 14 Barb. 109; Leonard v. Leonard. 14 Pick. 280; White v. Palmer, 4 Mass. 147; McDonald v. Morton, 1 Mass. 543. (3) 34 CONVEYANCING. CII. I. a married woman, or feme covert, was not merely voidable, but absolutely void.^ The English statute of 3 and 4 Wm. IV., ch. 75, allowed a married woman to dispose of her lands by deed, with the concurrence of her husband, but the deed had to be acknowledged before the proper person by whom she was examined a})art from her husband, to ascertain if her consent to the deed was voluntary. This statute establishes a mode of conveyance by married women in England which has long been emi)loyed in this countr}'. In most of the States similar statutes have been enacted, limiting, in a greater or less degree, the capacity of married women to alienate their lands. Indeed, it may be stated as a general proposition, that the deed of a married woman, unless joined by her husband, or unless author- ized by statute, is void.- l>ut the tendency of legislation in this country has been to clothe women with more or less power to convey real property owned by them, and in many of the States tiiey may alienate by deed such land as has been conveyed to them for their own use, separate and apart from their husbands, or what is called "separate estates," as if they were sole and unmarried.^ In some of 1 2 Bl. Com. -im. 2 She]). Touch. ;")(]; Concord Bank v. Bellis, 10 Cush. 277; Lefever v. Murdock, Wright (Ohio), 20r); Bool v. Mix, 17 Wend. 119; Lowell v. Daniels, 2 Gray, 161; Hogan v. Ilogan, S9 111. 427; Fowler v. Shearer, 7 Mass. 21; Gillespie v. Bailey, 12 W. Va. 70; Cope v. ^Vfeeks, 8 Head, 388; Dow V. Jewell, 18 N. II. ^fw; Rake v. Lawshee, 24 N. J. L. GIH; Moore v. Eake, 20 N. J. L. 574; Trimmer v. lleagy, IG Pa. St. 484; Peek V. Ward, 18 Pa. St. .506; Baxter v. Bodkin, 25 lud. 172; Davis v. Andrews, 30 Vt. 681 ; Brcssler v. Kent, 61 111. 426; Huff v. Price .50 Mo. 22S. Under the Illinois act of 1861, a married woman cannot convej^ to her husband, since the act requires him to join in her conveyance. Brent V. Yeaton, 101 111. 242. The provisions of the statute must be strictly com- plied with. Ellet V. Richardson, 7 Cent. L. J. 146; Knight v. Thayer, Id. 477; Buchanan v. lla/zard, 95 Pa. St. 240. •Miressler v. Kent, 61 111.426; Huff v. Price, 50 Mo. 228; Ilogan v. Hogan, 8 Cent. li. J. 316; Cushman v. Henry, 75 N. Y. 103; Foreman v. Hoster, 94 Pa. St. 418; Booker v. Wingo (S. C), 7 S. K. Rep. 49; Ed- wards v. Schoeneman, 104 111. 278; Clark v. Clark (Oreg.), 18 Pac. Rep. 1; Baldwin v. Flagg, 36 N. J. Eq. 48; Frazer v. Clifford, 94 Ind. 482; Ewing's .\ppeal, 101 Pa. St. 371. But by statute in many of the States AUT. IV. PAUTIES TO A DEED. 35 the States the statutes go fiirther than in others, and aHow married women to convey hinds without tlie concurrence of their husbands and in the same manner as if they were unmarried.^ It has been held that the infancy of a married woman will make her deed voidal)h), notwithstanding its execution in the form prescribed by statute. - § 2S. I>ure.ss. — A deed, made under duress of imprison- ment or fear from threats of personal violence, is voidable but not void." To constitute such duress as will l)e sufii- no married woman can convey or encumber her separate estate unless the husl)anil join in the deed. Stimson's Amer. St., p. 742, § (wOO; Mar- tin V. Colbum, 88 Mo. 22!J; Schley v. Pullman Car Co.. 120 U. S. 57."}; Gregg- V. Owens (Minn.;, 33 X. W. Rep. 210; Cook v. Walling (lud.) 19 N. E. Rep. 532. Or give consent. Rooney v. Michael (Ala.), -i South. Rep. 421; Sewell v. Haymaker, 8 S. C. Rep. 1348. And see Uugau V. Corn, 82 Ky. 2015. 1 Watson V. Thurber, 11 Mich. 457; Brinunot v. Weaver, 2 Oreg. 1(58; Hale V. Christy, 8 Neb. 2(54; Morris v. Harris, Gill (Md.), 10; Allen v. Hooper, ."iO Me. 371; Willard v. Dow, .54 Vt. 188: Roberts v. Wilooxen, 36 Ark. 355. Under Rev. St. Me. 1871, ch. (Jl, giving a married woman pov.' 3 to convey land in her own right without assent or joinder of her husband, a married wonum has the power to convey direct to her husband. Savage v. I/uige (Me.), 15 Atl. Rep. 43. And see as to effect under Ohio and Virginia statutes. Sewell v. Haymaker, S S. C. Rep. 1348. In many of the States wife can mortgage her separate estate to pay her husband's debts. Petty v. Grisard, 45 Ark. 127; Christian v. Keen. SO Va. 369; Ha- genbuch v. Phillips, 112 Pa. St. 284. And see Wallace v. Craig (S. C), 4 S. E. Rep. 74. But contra: Keller v. Orr, 106 lud. 40ii. Under laws New York 1860, eh. i)0, grantee of married women, without consent of husband in writing takes valid title against all the world, except the husband. In re Est. Bedleslieiin, 1 N. Y. Supplement, 276. A married woman, resident in Kentucky and having separate property in the State, may authorize her husband by power of attorney to convey it, the stat- ute prohibiting sucli powers applying only to their general and not sep- arate estate. Chrismas v. llahm (Ky.), 9 S. W. Rep. 270. And see Clements v. Evving (Tex.), 9 S. W. Rep. 312. 2 Bool V. Mix, 17 Wend. 119; Youse v. Norcoms, 12 Mo. .54!»; Sanford V. McLean, 3 Paige, 117; Hoyt v. Swar, .53 HI. 134. But see Caho v. Eudress, 8 Cent. L. J. 178; Wilson v. Branch, 77 Va. 65; Richardson V. Pate, 93 lud. 423; Losey v. Bond, 94 Ind. (i7; Ellis v. Alford, 64 Miss. 8. ■■' Davis v. Fox, 59 Mo. 125; Baker v. Morton. 12 Wall. 1.50; Cook v. Moore, 3!) Tex. 255; Worcester v. Eaton, 13 Mass. 371; Deputy v. .Sta- pleford, 19 Cal. 302; Brown v. Peck, 2 Wis. 261; Bogle v. Hammons, 2 Heisk. 136. Proof must be clear and convincing. Northwestern Mut. 36 CONVEYANCING. CIl. I. cient to avoid a deed, there must be such violence or threats as are calculated to operate on a person of ordinary lirni- ness, and inspire a just fear of the loss of life or limb, or personal liberty.' If the violence used be only a legal constraint, or the threats onl}' of doing that -svhich the party using them had a right to do, as if it be a just and legal imprisonment, or threats of any measure authorized by law, it will not avoid a deed.- But where the proceed- ings at law are a mere pretext, the instrument may be avoided. •'' AVhere there is no other motive, besides the vio- lence or threats, for making the deed, a less degree of dan- ger will be sufficient to invalidate it.* And the age, sex, state of health, temper and disposition of the party, and other circumstances calculated to give greater or less effect to the violence or threats, are also to be taken into consid- eration.^ § 29. Undue Influence. — Closely allied to the subject of the incapacity of an imbecile, or one under duress to make a deed, is that of undue influence, which, according to the cir- cumstances of each case, will render a deed voidable,*' when made by one with feeble mind, and so situated as to be im- properly and illegally influenced. Equity considers such an act a fraud and will set it aside, when dures-^ or undue influence over the grantor are so clearly shown as to make it Life Ins. Co. v. Nelson, 103 U. S. 544. But void by statute in some States. Stimson's Amer. St.. p. 746, § 050!). 1 Barrett v. French, 1 Conn. 3.54; United States v. Huckabee, 16 "Wall. 432 ; Williams v. Williams, 63 Md. 371 ; Koeonrek v. Mavak, 54 Tex. 201 ; Adams v. Stringer, 7r)2; Whittoii v. Wliitton, 38 N. H. 127: Good v. Cooinbs, 28 Tex. 51; XcKey v. Welch, 22 Tex. 390; Cam- puu V. Godfrey. 18 iSIich. 27; Butler v. Roys, 2") Mich. 53; Blossom v. Briijhtman, 21 Pick. 284: Phillips v. Tudor, 10 Gray, 78; Griswold v. Jolinson, 5 Conn. 363; Duncan v. lS3ive.ster, 24 Me. 482; Jewett v. Stock- ton, 3 Yerg. 4!)2; :Marcli v. lluyter, 50 Tex. 243; Ballow v. Hale, 47 X. H. 347; Boston v. Condit, 10 X. J. Eq. 394; Gates v. Salmon. 35 Cal. 57G; Bigelovv v. Toplift", 25 Vt. 273; Sneed v. Warning, 2 B. Mon. 522. See Apgar v. Christopher, 33 Fed. Bep. 201. As to one co-tenant mak- ing lease. Whyler v. Van Tiger (Cal.), 14 Pac. Rep. 846. -' Primm v. ^Valker. 38 Mo. 94. And see Bell v. Adams, 81 X. C. 118; Ruppe V. Steniborcli, 48 Mieh. 405. In Maryland a tenant in couuuon may dispose of bis interest in any particular separate portion of real estate which has descended to bim in common, under the act to direct descents. Reinicker v. Smith, 2 IIar.it J. 421. A tenant, in common wiio assumes to convey the entire interest of botii conveys only bis interest and purchaser becomes a tenant in common with the other. Sims V. Daws (Ind.), 15 X. E. Rep. 217. ■■' Chapin v. First Universalist Soc, S Gray, 583; Breiinan v. Wilson, 71 X. y. 502. •• Harrison v. Jackson, 7 Term. 207; Clement v. Brush, 3 Johns. Cas. 180; Van Deusen v. Blum, 18 Pick. 229; Posey v. Bullitt, 1 Blackf. 99; Trimble v. Coons. 2 A. K. Marsh. (Ky.) 375; Cummins v. Cassiiy, 5 B. Mon. 74; Xuunely v. Doherty, 1 Yerg. 26; McNaughten v. Partridge, 11 ART. IV. PARTIES TO A DKKD. 'M by one of the partners in the name of the firm will only affect his own interest and will not pass the interest of his partner.^ Yet express authority will give effect to such deed, and it seems that this may be cither by previous assent or subsefjuent ratification.- But this assent or ratification, it is held, must be by an instrument of as high a nature as the deed itself,-^ though the tendency in some of the States is to regard a parol ratification as sufficient.'^ And some of the cases 20 to the extent that this need not be express and special, but may be implied from the conduct and course of dealing by the firm.'' § 32. Deed from Husband to Wife. — By the rules of the common hiw, as distinguished from equity, the husband or wife cannot convey land directly, one to the other." But Ohio, 223 ; Doe v. Tupper, 4 Smed. & M. 261 ; Suodgrass Appeal, 1 Har- ris, 471; Morris v. Jones, 4 Harr. 428; Little v. Hazzard, •') llarr. 292; Moline Wagon Co. v. Ruminell, 14 Fed. Rep. 155; Herzog v. Sawyer, 61 Md. 344. 1 Brooks V. Sullivan, 32 Wis. 444; Thompson v. Bowman, 6 Wall. 316, Anderson v. Tompkins, 1 Brock. 45G; Jackson v. Stanford, 10 Ga. 14; Layton v. Hastings, 2 Harr. 147; Printup v. Turner, 65 Ga. 71 ; Brunson V. Morgan, 76 Ala. 593. But contra, of partnership formed for the pur- pose of buying and selling land. Young v. Wheeler, 34 Fed. Rep. 98; Smith V. Bunhani, 3 Sum. 435. ^Gunter v. Williams, 40 Ala. 561; Gibson v. Warden, 14 Wall. 244; Baldwin v. Richardson, 33 Tex. 16; 1 Am. Lead. Cas. 592; Shirley v. Fearne, 33 Miss. 653; Ely v. Hair, 16 B. Mon. 230; Haynes v.Seachrest, 13 Iowa, 455; Pike v. Bacon, 21 Me. 280; Lowery v. Drew, 18 Tex. 786. But see Little v. Hazard, 5 Harr. 340; Chittenden v. Germ. Amer. Bank, 27 Minn. 143. 3 Story Part., §§ 119, 121; Gow. Part, 75, 76; Henry County v. Gates, 26 Mo. 315; Snyder v. May, 19 I>a. St. 235. ^ Cady V. Shepherd, 11 i'ick. 400; Bond v. Aitkin, 6 Watts & S. 165; Haynes v. Seachrest, 13 Iowa, 455; Gunter v. Williams. 40 Ala. 561 ; 1 Am. Lead. Cas. 611; Grady v. Robinson, 28 Ala. 289; Herzog v. Saw- yer, 61 Md. 344. sGwinu V. Rooker, 24 Me. 292; Pike v. Bacon, 21 Me. 280; Davis v. Burton, 3 Scam. 41; Witter v. McXeil, /(L433; Hatch v. Crawford, 2 Porter, 54. See Kelley v. Pike, 5 Cush. 484; 1 Am. Lead. Cas. 611; Catlin V. Gilden, 3 Ala. 536; Haynes v. Seachrest, 13 Iowa, 455. « Underhill v. Morgan, 33 Conn. 107; Martin v. Martin, 1 Greenleaf, 394; Voorliees v. Presb. Ch., 17 Barb. 103; Rowe v. Hamilton, 3 Greenl. 63 ; Johnson v. Rogers, 35 Hun, 267. 40 CONVEYANCING. CH. I. courts of equity will give effect to such deeds, if not in fraud of creditors, when made through the intervention of a trustee,' or by means of the Statute of Uses, in the form of a conveyance to the use of the husband or wife ,2 or a covenant to stand seized/' In some of the States, however, a husband can convey land directly to liis wife, without the necessity of a trustee,^ and it will be sustained in equity if founded on a meritorious consideration,^ and distinctly intended for her separate use,^ and if not in fraud of creditors.' § 33. The Capacity of a Grantee is much less restricted than that of a grantor. Infants, married women and per- sons of non-sane mind may, as a general thing, take as frantees.*^ Deeds or leases made to an infant are, of course, i Spencer v. Godwin, 30 Ala. 355; Jewell v. Porter, 31 X. II. 34; Abbott V. lliird, 7 Blackf. 510; Frissel v. Kozier. 19 Mo. 448; Fowler v. Trebein, 1(1 Ohio St., 493; Simmons v. Thomas, 43 Miss. 31; Barnum v. Farthing, 40 How. (Pr.) 25; Aultman v. Obermeyer,(> Xeb. 200; Loomis V. Brush, 30 Mich. 40; Bancroft v. Curtis, 108 Mass. 47. And see Clark V. ]\IcGeihan, 25 X. J. Eq. 423; Story v. Story, 41 X. J. Eq. 370: Harden V. Darwin, 00 Ala. 55; Loeb v. McCullough, 78 Ala. 533; Gaston v. Weir (Ala.), 4 South. Rep. 258. 2 Pennsylvania Salt Co. v. Xeel, 54 Pa. St. 9; Roper Hus. & Wife, 59. 3 Thatcher v. Omans, 3 Pick. 521. ^ Burdeno v. Amperse, 14 Mich. 91 ; Hoffman v. Stiger, 28 low^a, 308; AVilder v. Brooks, 10 Mich. 50; .Johnson v. Stillings, 35 Me. 427; Allen V. Hooper, .50 Me. 372; Winans v. Peebles, 31 Barb. 371; Goodlet v. Hansen, Id. 151; Sassen v. McWilliams, 73 Ga. 078; Furrow v. Athey, 21 Xeb. 071; Brown v. Brown, 30 X. W. Rep. 275; Woodsworth v. Tan- ner (Mc), 7 S. AV. Rep. 104. And see Bray v. Clapp (Me.), 13 Atl. Rep. 909. The conveyance by husband to wife direct without intervention of trustee [gives her only an equitable estate. Powe v. McLead, 70 Ala. 418; Washburn Iv. Gardner, Id. 597; Smith v. Leiberling, 35 Fed. Rep. 677. But contra, Winans v. Peebles, 32 X. Y. 423; White v. Wagner, 25 X.Y. 328. s Hunt v. .Johnson, 02 111. 22; Dale v. Lincoln, 44 X.Y. 27; Watson V. Riskamire, 45 Iowa, 231. 6 Sims V. Rickets, 35 Ind. 181 ; Thompson v. Mills, 39 Ind. 520; Mays V. Price (Mo.). 8 S. W. Rep. 731. Though not so expressed in the deed. Smith V. Leiberling, 35 Fed. Rep. 077. 7 Brookbank v. Kennard, 41 Ind. 339; Aunin v. Annin, 24 X. J. Eq. 185; Sherman v. Hogland, .54 Ind. 578. 8 1 Wood Conv. 165, 108; Co. Litt. 2h; Perkins, § 51. ART. IV. PARTIES TO A DKKD. 41 voidable.^ So, uIjjo, of those made to one noa (•oiapos men- tisP' At common law a deed might be made to a married woman, subject, however, to the dissent of her husband during iiis life, or her disaffirmance after his death.^ In most of the States, however, by statute or by rulings of courts of equity, lands may be conveyed to a wife free from the control of her husband, either directly or by means of a trustee, for her sole and separate use.'* But a deed to a feme covert not describing her as a married woman, nor purporting to be for her sole and separate use, is prima facie a conveyance to the husband and wife in common,-^ and the burden of proof is on the wife to show that it is J Baxter v. Bush, 29 Vt. 465; Griffith v. Schweadermau, 27 Mo. 412. - Bishop on Contracts, § 296. •" 2 Bl. Com. 292; 2 Kent's Com. 150; Scanlan v. Wright, 13 Pick. 523; 1 Bishop on Married Women, § 35; Baxter v. Smith, 6 Biun. (Pa.) 427. * Meyer v. Kinzer, 12 Cal. 251 ; Commonwealth v. Williams, 7 Gray, 337; Ayer V. Ayer, 10 Pick. 331; Nightingale v. Hidden, 7 K. I. 128; Fisk V. Stubbs, 30 Ala. 335 ; Bayer v. Cockerill, 3 Kan. 282; Pooley v. Webb, 3 Coldw. (Tenn.) 599; Houston v. Carl, 8 Tex. 240; Vance v. Nogle, 70 Pa. St. 176; Smalley v. Lawrence, 9 Rob. (La.) 211; Gamber V. Gamber, 6 Harris (Pa.), 363; Richmond v. Tibbies. 26 Iowa, 474; Uhrig V. Horstman, 8 Bush (Ky.), 172; AVhitehead v. Arline, 43 Ga. 221 ; Prout v. Roby, 15 Wall. 471 ; Lippincott v. Mitchell, 94 U. S. 767 ; Burnley V. Thomas, 63 Mo. 390; McVey v. Green Bay R. R. Co., 42 Wis. 532; Perdue v. Montgomery, etc. Assoc, 79 Ala. 478; Kellogg v. Kellogg, 63 Miss. 631; Cardwell v. Perry, 82 Ky. 129; Carswell v. Lovett (Ga.), 4 S. E. Rep. 866; Lathrop v. White (Ga.;, 6 S. E. Rep. 834. •' The question has arisen and authorities are conflicting as to whether a deed to husband and wife conveys to them in common or in entirety, by which, upon the death of one, the survivor takes the entire estate, and whether the statutes relating to married women have changed the rule with reference to the right of the survivor. In the following cases it is held that they take by entirety, with right of survivorship : Baker V. Stewart, 19 Pac. Rep. 904; Smith v. Smith, 30 Ala. 642; Myers v. Reed, 17 Fed. Rep. 401; Hall v. Stephens, 65 Mo. 670; Robinson v. Eagle, 29 Ark. 202 ; Pray v. Stebbins, 141 Mass. 219; McDuff v. Beau- champ, 50 Miss. 531; Jacobs v. Miller, 50 Mich. 119; Diver v. Diver, 56 Penn. St. 106; Bertles v. Noonau, 92 N. Y. 152. See 28 Cent. L. J. 107. But contra: Cooper v. Cooper, 76 111. 57; Hoffman v. Stigers, 28 Iowa, 302; Clark v. Clark, 56 X. H. 105. Before the enactment of Massachu- setts statute 1885, ch. 237, a conveyance of land in fee to husband and wife gave them an estate by entireties, as at common law. Pray v. Steb- bins, 141 Mass. 219. 42 CONVEYANCING. CH. I. her separate property, acquired^ in a specified manner and purchased with her own money.'- An alien may purchase and hold laud against the whole world, except the sov- ereignty,'' though he cannot, in general, acquire title by descent, or by other mere operation of law. And if he pur- chases land he may })e divested of the fee upon an inquest of office found; but until this is done he may sell, convey or devise the land, and ))ass a good title to the same.^ In many of the States the disability of aliens is entirely removed by statute.'' By the English statutes against morUnain, corporations are prohibited from holding hmd without si)ecial authority.*^ Similar statutes were enacted in Pennsylvania.' But in other States this statute is believed not to be in force, and corporations may hold real estate for purposes not foreign to their institution.'"* It may be added that by the general 1 Adams v. Kiiowlton, 22 Cal. 2S:?; Wliitehoad v. Arliuc, A\\ Ga. 221; Merrill v. Bullock, 105 Ma.ss. 4S(i; Reeves v. Webster, 71 111. 307. And see Devechaud v. Berrey, 48 Ala. 591 ; Iloyt v. Parks, 39 Conn. 357 ; Hussey v. Castle, 41 Cal. 239. No specilic Avords necessary to the crea- tion of separate estate if the intention elearly apjx'ui's. ^luii-ill v. Mer. Trust Co., 81 Ky. 129; Duke v. Duke, Id. 308; Koblnson v. Kaudolph, 21 Fla. G29. 2 Pettit V. Fritz, 33 Pa. St. 120; Commonwealth v. Williams, 7 Gray, 337. And see Xi(); U. S. Trust Co. v. Lee, 73 111. 142. The right of corporations to hold property is determined by the law of the government in which it is doing business and in which it acquires the property. Tarpey v. Deseret Salt Co. (Utah), 17 Pac. Kep. 631. - Cowell V. Colorado Springs Co., 100 U. S. 55. 3 Ibid; Natoma Mining Co. v. Clarkin, 14 Cal. 552; East Norway, etc. Church V. Froislie (Minn.), 35 X. W. Rep. 260; Russell v. T. & P. R. R. (Tex.), 5 S. W. Rep. 686. ^Farmers' Ins. Co. v. Hurrah, 47 Ind. 236; Home Ins. Co. v. Davis. 29 Mich. 238. •'' So provided by statute in some of the States. Stimson's Amer. Stat.,§ 1412. •^ Hunter v. Watson, 12 Cal. 363; Miller v. Chittenden, 2 Iowa, 368. 44 CONVEYANCINi . Cll. I. tively shown in order to give it effect.^ It may be remarked that this princii)le does not aj)ply to remainder-men where there is a party existing to take the immediate estate. It is limited also to that of which livery may be made ; it does not extend to incorporeal hereditaments.'- ARTICLE V. FRAUDULENT CONVEYANCES. SECTION. 36. When a couveyauce will he tlcemed fraudulent. 37. Voluntary conveyances. 38. Deeds obtained by fraud of the grantee. 30. Conveyances void for other causes. § 36. When a Conveyance will be Deemed Fraudulent. — We have previously observed that all })er8ons except those whom the law places under some particular disability have absolute dominion over their property. They may, within the limits prescribed by law, make whatever disi)osition of it they please. But in so doing they will not be permitted to interfere with the existing: rights of others.'^ Thus, where a creditor takes no specific security from his debtor, he trusts him on the general credit of his pro{)erty, and a confidence that he will not diminish it to his prejudice.'' A 1 llulick v. Scovil, 4 111. 191. As to how far grants to charitable uses form exceptions to this rule, see Miller v. Chittenden, 2 Iowa, 3G8; Totter V. Chapin, (J Paige, (i-t9; Vidal v. Gerard's Ex., 2 How. 128; Brown v. Manning, (J Ohio, 303. A grant to a corporation which has never been created or organized would be void. Jlarrinuin v. Suthani, IG Ind. 1!»0; Jones v. Cincinnati Type Foundry, 14 Jd. 89; llussell v. Topping, ') McLean, 202. 2 Huss v. Stephens, .^)1 Pa. St. 282. ^ Sexton v. Whcaton.S Wheat. 242. There cannot be, as against cred- itors, a fraudulent convi-yancc of that which they could not reach — a homestead for instance. Stanley v. Snyder, 43 Ark. 429. ^ Eppes V. Kandolph, 2 Call, 1S3. ART. V. FRAUDULENT CONVFAANCES. 45 violation of this confidence is a fraud upon such creditor, and whoever receives a conveyance with notice of the fraud is assisting the debtor to cheat his creditor, which the law never tolerates.^ Accordingly, conveyances made to the end, purpose and intent to delay, hinder or defraud creditors are, by the policy of the law or by statute, ren- dered void, as to such creditors. ^ The fraud which invali- dates the conveyance consists in the intent,^ acted upon,* to prevent creditors from recovering their just debts. And when a debtor places his property beyond the reach of legal process, for the purpose of hindering or delaying his credit- ors, this is a legal fraud, though he may intend ultimately to pay them. 5 Although the grantor makes the conveyance with a fraudulent intent, if it be for a valuable considera- tion, it is valid as to innocent purchasers without notice of such intent.*^ To make a conveyance fraudulent as to credit- 1 Codo^an v. Kennett, 1 Cowp. 432. ' ^ < ^ 2 Kobinson v. Holt, 39 N. H. 557; Foley v. Bitter, 34 Md. 646; Prout V. Vaughn, 52 Vt. 451 ; Strauss v. Abrahams, 32 Fed. Rep. 310. The rule applies as to existing creditors. Johnson v. Skaggs (Ky.), 2 S. W. Rep. 493. So long as a debtor remains solvent no sale can be held to have been made in contemplation of insolvency unless actual fraud be shown. Griffith V. Cox, 79 Ky. 5G2. Intent to hinder and delay is sufficient. McCreary v. Skinner (Iowa), 38 X. W. Rep. 676. 3 Rogers v. Evans, 3 Ind. 574; Reed v. Carl. 3 Smed. & M. 74; Chand- ler V. Van Roeder, 24 How. 224; Alabama Ins. Co. v. Pettvpay, 24 Ala. 544; Splawn v. Martin, 17 Ark. 146; Worthy v. Brady, 91 N. C. 265. In Michigan, the question of intent under Conip. St., § 6206, is one of fact and not of law. Xorris v. McCanna, 29 Fed. Rep. 757. The intent must be to prevent the whole or a part of his property to be applied to the payment of his debts. It is r.ot enough that he intended to secure one creditor at the expense of another. Spear v. Clafflin, 76 Va. 299. 4 Bunn v. Ahl. 29 Pa St. 387. 5 Wheelden v. Wilson, 44 Me. 1 ; Boreland v. Mayo, 8 Ala. 104 ; McLean V. Lafayette Bank, 3 McLean, 587; Stovall v. Farmers' Bank, 8 Smed. & N. 305; Kimball v. Thompson, 4 Cush. 441. Whether a mortgage given to secure future advances as well as an existing debt is fraudulent as to other creditors is a question of fact. Wood v. Franks, 67 Cal.32. « Moshier v. Knox College, 32 111. 1.55; Paige v. O'Xeil, 12 Cal. 483; Bridges v. Eggleston, 14 Mass. 250; Wright v. Howell, 35 Iowa, 292; Fletcher v. Peck, 6 Cranch, 133; Bean v. Smith, 2 Mason, 274; Trott v. Warren, 11 Me. 227; Florence S. M. Co. v. Zeigler, 58 Ala. 222; Shultz 4G CONVEYANCING. ClI. I. ors, the fnuululcnt purpose must be known to and partici- pated in by the ojrantee.^ And if the (grantee is shown to iiave participated in the purpose to defraud or dehiy, the conveyance will be void, though a full and valuable consideration may have been paid.- It is likewise to be remembered that neither inadequacy of consideration nor the fact of indebtedness, nor even insolvency is, of itself, sufficient to set aside a conveyance;'^ though taken in con- V. Morgau. 27 La. Au. (JlG; Jacksou v. Henry, 10 Johns. 186; Gal}>reath V.' Cook, :50 Ark. il7: Mowrey v. Walsh, 8 Cow. "iiiS; Caiuphcll v. Whit- sou, OS 111. -240; :^lelleu v. Ames. 3!i Iowa, 283; Jewett v. Cook, 81 111. 260; Tredwell v. Graham, 88 N. C. 208; Kohii v. Clement, r)8 Iowa, .")89; Ladnier V. Laduier (Miss.),l South. Rep. 492; Schroeder v. Walsh (111.), 11 N. E. Rep. 70. • Splawn V. Martin, 17 Ark. 146; Byrne v. Becker. 42 Mo. 264; llessiug V. McCloskey. :{7 111. 342; Gridley v. Bingham, 51 111. 153; Carpenter v. Muren, 42 Barb. 300; Waterbury v. Sturtevant, 18 Wend. 353; State v. Keeler,4!) Mo. 548; Weisigcr v. Chish()lm.2S Tex. 780; Miller v. Kirby, 74 111. 242; Iledman v. Anderson, 6 Neb. 3i)2; ^Marshall v. Croom, 60 Ala. 121 ; Curtis v. Valiton, 3 Mont. 153 ; Roe v. Moore, 35 X. J. Eq. 526 ; Farlej'^ v. Carpenter, 27 Hun, 359; Moline Wagon Co. v. Rummel, 14 Fed. Rep. 155; Hurley v. Taylor, 78 Mo. 238; Ilorljacii v. Hill, 112 U. S. 144; Beasley v. Bray (N. C), 3 S. E. Hep. 197. 2 Wadsworth v. Williams, 100 Mass. 131 ; Wood v. Chambers, 20 Tex. 247; Crow v. Beardsley, 68 Mo. 435; Schmidt v. Opie, 33 N. J. Eq. 138; Williamson v. Wachenlieim, 58 Iowa, 277; McKinnon v. Reliance Lumber Co., 63 Tex. 30. Also if grantee simply had notice of such intent, Goshsorn v. Snodgrass, 17 W. Va. 717; Iledrick v. Walker, Id. 916; Bowyer v. Martin, 27 W. Va. 442. But mere knowledge of grantee that the debtor was in failing circumstances not suflicient. Rockwood Manuf. Co. v. Masters (Iowa), 39 N. W. Ilep. 219. But contra: Holmes V. Broadswood, 82 Mo. 610; Baughman v. Penn, 33 Kan. 504; Leffel v. Schermerhorn, 13 Neb. 342; Sexton v. Anderson (Mo.), 8 S. W. Rep. 564. '^ Alexander V. Todd, 1 Bond, 175; Frank v. Peters, 9 Ind. 344; .Jen- kins V. Einstein, 3 Biss. 128; Waddams v. Humphreys, 22 111. 661 ; Moore V. Lowery, 27 Tex. 541; Anderson v. Smith, 5 Blackf. 395; Bennett v. McGuire, 58 Barb. 625. A deed made by an eml)arrassed debtor to one creditor, to the exclusion of all others, is not void, provided it be made in good faith to pay an honest debt. Totten v. Brady, 54 Md. 170. But contra, under Wisconsin statute (David v. Burchard, 53 Wis. 492). And provided the creditor so preferred does not act in bad faith nor obtain more than is justly due him. Arn v. Hoerseman, 26 Kan. 413. And see Shelley v. Boothe, 73 Mo. 74; Lucas v. Clalllin, 76 Va. 269; Bishop v. Jones, 28 Kan. 680. As to tiie right of debtor to prefer a ART. V. FRAUDULENT CONVEYANCES. 47 nection with other circumstances it ma}' furnish strong evi- dence of fraud. ^ The question in such case depends upon the bona fides with which the transaction takes place.' The existence of the intent to defraud, hinder or dehiy must be established before the conveyance can be set aside.'' The statute is designed solelj^ to protect the rights of creditors, and consequently it renders a fraudulent transfer void only as against them. As against the grantor, his heirs and legal representatives, such a conveyance is good.'* creditor if done iu good faith. O'Donald v. Coustaut, 82 Ind. 21'2; State Bank v. Whittle, 4S Midi. 1; Kellogg v. Richardson, 19 Fed. Kep. 70; Gruppeuheinier v. Brooktield, 90 N. C. 282; Tootle v. Caldwell, 30 Kan. 125; Colbern v. Robinson, 80 Mo. 541 ; Smith v. Whitfield (Tex.). 2 S. W. Rep. 822; Osgood v. Thorne, 63 N. H. 375; Bishop v. Steb- bins, 41 IIuu, 243; Waterman v. Silberberg, 67 Tex. 100; Wood v. Clark (111.), 12 N. E. Rep, 271. Insolvency of itself not sufHcient. Rathell v. Grimes (Neb.), 35 N. W. Rep. 392. The mere fact of relationship between the vendor and vendee, without other facts, affords no presumption of law against the bona fides of the sale. Schroeer v. Walsh (111.), 11 X. E. Rep. 70. A husband, though in- debted, may prefer a wife, she being a bona fide creditor. Chapman v. Summerfeld, 36 Kan. 610; Dice v. Irwin, 110 Ind. 561; Hoes v. Boyer (Ind.), 9 N. E. Rep. 427 ; Farmers" Bank v. Warner, 68 Iowa, 147. But in such cases it must appear affirmatively that there was no fraudulent intent as against other creditors shared in by the wife. Burt v. Tim- mons {W. Va.), 2 S. E. Rep. 780. A deed of laud from husband to wife before marriage iu consideration thereof is a valuable consideration. Gibson v. Bennett (Me.), 9 Atl. Rep. 727 . 1 Kaine v. Weigley, 22 Pa. St. 179; Robinson v. Robards, 15 Mo. 459; Kuykendall v. JMcDouald, 15 Mo. 416; State v. Evans, 38 Mo. 150. 2 Gamble v. Johnson, 9 Mo. 624; Randall v. Vroom, 30 N. J. Eq. 3.53. Where a married woman is equitably the owner, legal title being in her husband, who conveys to her, his creditors cannot impeach the con- veyance. ■' Cason V. Murray, 15 Mo. 378; Drum v. Painter, 27 Pa. St. 148. ■* Stewart v. Dailey, 6 Litt. Cas. 212; Cheeseman v. Exall, 6 Exch. 341; Freeman v. Sedgwick, 6 Gill, 28; Gifford v. Ford, 5 Vt. 532; Stew- art V. Iglehart, 7 Gill & J. 132; Dietrich v. Koch, 35 Wis. 618; O'Neill v. Chandler, 42 Ind. 471; George v. Williamson, 26 Mo. 190; Chapin v. Pease, 10 Conn. 69; Lawton v. Gordon, 34 Cal. 36; Harmon v. Harmon, 63 111. 512; Phettiplace v. Sayles, 4 Mason, 312; Canton v. Dorchester, 8 Cush. 525; Hartley v. McAnulty, 4 Yeates, 95; Terrell v. Imboden, 10 Leigh, 321; Sumner v. Murphy, 2 Hill (S. C), 488; Byrd v. Curlin, 1 Humph. 466; Noble v. Noble, ^6 Ark. 317; Leshey v. Gardner, 3 Watts. 48 CONVKYANCINti. CH. I. § 37. Voluntary Conveyances. — A voluntary convey- ance is a convo^'ance witbout any valuable consideration. Consequently, the adequacy of the consideration does not enter into the question ; neither does the intention or good faith of the grantee.^ The exceptions in favor of innocent purchasers for value do not extend to innocent donees. The question as to the validity of a voluntary conveyance depends wholly on the motive of the donor.^ If there is no intent to delay, hinder or defraud creditors, the convey- ance is not within the statute ; but if there is such an intent, then it is void.-^ It was held by Chancellor Kent, that a voluntary con- veyance by a person indebted is presumed fraudulent as airainst all existing; debts, without regard to their amount, or to the extent of the property conveyed, or to the circum- & S. :U4; Simpson v. Graves, Rile.v's ('h. 232; Dale v. Harrison, 4 Bibb 65; Newell v. Xewell, 34 Miss. 385; Tuesley v. Robinson, 103 Mass. 558 As to heirs, see Stewart v. Ackley, 52 Barb. 283; Jackson v. Garnsey 16 Johns. 182; Horner v. Zimmernian, 45 111. 14; Getzler v. Saroni, 18 111.511; Cushwa V. Cushwa, 5 Md. 44; Dauzey v. Smith, 4 Tex. 411 Jewell V. Porter, 31 N. H. 34. As to executors and administrators, see Howell V. Edmonds, 47 111. 79; Dorsey v. Smithson, 6 Har. & J. 61 Welsh V. AVelsh, 105 Mass. 229; McT>ane v. Johnson, 43 Vt. 48. As to the subject generally, see Bump on Fraud. Conv.; Shaw v. Millsaps, 50 Miss. 380; Edwards v. Ilaverstick, 53 Ind. 348; Gould v. Steinburg, 84 111. 170; Hall v. Callahan, 66 Mo. 316; York v. Merritt, SO N. C. 285. i Foley V. Bitter, 34 Md. 646; Tunnison v. Chaml)lin. 88 Fl. 378; Bibb V. Freeman, 59 Ala. 612; Matsou v. Melchor, 42 Micrli. 477. 2 Miller v. Thompson, 3 Port. 198; Gardner v. Boothe, 31 Ala. 186: Gamble v. Johnson, 9 Mo. 605; Wise v. Moore, 31 Ga. 148; Wood v. Hunt, 38 Barb. 302 ; Holmes v. Clark. 48 Barb. 237 ; Van Wyck v. Seward, 18 Wend. 375; Tlionipson v. Dougherty, 12 Serg. & R. 448; Benton v. Jones, 8 Conn. 186; Atkinson v. Phillips, 1 Md. Ch. 507. But see Mc- Anally v. O'Xeil. 56 Ala. 299; Kirksey v. Snedecor, (;9 Ala. 192; Crawford V. Kirksey, 55 Ala. 282; Lucas v. Eucas, 103 111. 121 ; Woody v. Dean, 24 S. C. 499. But see where intent held not material. White v. Mc- Pheeters, 75 Mo. 286; Robinson v. Clark, 76 Me. 493. •'' Freeman v. Burnham, 36 Conn. 469; Henry v. Fullerton, 13 Smcd. & M. 631; Weed v. Davis, 25 Ga.6S4; Clayton v. Brown, 17 Ga.217; Hunt- ers V. Waite, 3 Gratt. 20; Mixell v. Lutz, 34 111. 382; Marston v. Mars- ton, 54 Me. 476; Holden v. Burnham, 63 N. Y. 74; Carr v. Breese, 81 N. Y. 584; McGowan v. Ilitt. 16 S. C. 602. ART. V, 1 HAUDULEXT C0XVEYAXCE8. 49 stances of the pjirty.^ But this doctrine has been overruled,* and the learned cliancellor himself, on a later considera- tion of the authorities, says, " Judnje Stoky evidently settles down upon the conclusion that mere indebtedness at the time would not^er se establish that a voluntary convey- ance is void, even as to existinfr creditors, unless the other circumstances of the case justly created a presumption of fraud, actual or constructive, from the condition and rank of the parties and the direct tendency of the conveyance to impair the rights of creditors. I have no doubt that such is the tendency of the decisions, both in England and Amer- ica, and that the conclusions of fraud are to be left as matters of fact to a common jury. The doctrine in Reade V. Livingstone, and of the English chancellors on whom it rested is, as I greatly fear, too stern for the present times. "^ It may then be considered as well settled law that, so far as existing creditors are concerned, a voluntary convey- ance will be deemed fraudulent, when under all the circum- stances of the case an intent to defraud is a})parent.* It is not necessary, however, to prove actual intent. The law does not assume to deal with the secret motives or consciences of men, but judges their intentions by their 1 Keade v. Livingstone, 3 .Johns. Ch. 481. 2 Hunters v. Waite, 3 Gratt. 39; Verplank v. Steny, 12 Johns. 557; Jackson v. Town, 4 Cow. 003; Stewart v. Jackson, 8 Cow. 406; Jackson V. Peck, 4 Wend. 300; Brackett v. AYaite, 4 Yt. 389; Bank of U. S. v. Husman, 6 Paige, 52G; Salmon v. Bennett, 1 Conn. ,525; Hopkii-k v. Eandolph. 2 Brocken. 132; Wilson v. Kohlheini, 46 Miss. 346; Pratt v. Curtis, 2 Lowell, 87; Ilolden v. Burnhani, 03 X. Y. 74; Genesee River Bank v. Mead, 92 X. Y. 637. 3 2 Kent's Com. 442, note a. * Hunters v. Waite, 3 Gratt, 44; Lane v. Kingsbury, 11 Mo. 402. But see Young v. White, 25 Miss. 146; Toney v. McGeohee, 38 Ark. 419. It is held void by presumption of law in Alabama. Bibb v. Freeman, 59 Ala. 612; Early v. Owens, 68 Ala. 171; Goodman v. Wiueland, 61 Md. 449; Bohannon v. Combs, 79 Mo. 305. So also in Xew Jersey, following Reade v. Livingstone, supra, Clatlin v. Mess, 30 X. J. Eq. 211 ; O'Dauiel v. Crawford, 4 Dev. (X. C.) 197. And see Stevens v. Robinson, 72 Me. 381; Fink v. Denny, 75iVa. 663; Spence v. Dunlap, 6 Lea (Tenn.), 4.57. (4) 50 CONVEYANCING. CH. I. acts.^ Every man is i)i"esumed to intend the necessarv con- sequences of his own act.- If the consequence of a con- veyance is to dehiy or defraud creditors, and this might have been foreseen by a person of ordinary sagacity,"' the presumption of the intent is conclusive.* Different degrees of stringency have been ajoplied to con- veyance made to a child or a settlement upon the wife, and those made to other persons.-^ The validity of the former seems to depend upon the condition of the grantor, as to his ability to pay his debts out of his remaining property at the time the conveyance is made.*'' In some of the States such a conveyance made with a fraudulent intent would be void as to future or subsequent, as well as prior creditors.' While in other courts, it seems to have been held that no one ^ Van AVyck v. Seward, 18 Wend. 37."). The presumption of fraud arises and may exist without the imputation of moral turpitude. Pot- ter V. McDowell, 31 Mo. G2. 2 Potter V. McDowell, 31 Mo. 62. The intent will be assumed from the ait. Freeman v. Pope, li. R. H Ch. r)3S, criticizing Spirctt v. Willows, 3 DeG. J. & S. 2!)3. 3 Accident, such as loss by fire or in trade, which human forethought could not guard against, will not invalidate a voluntary conveyance. Pepper v. Carter, 11 3Io. r)40; Howard v. Williams, 1 Bailey (S. C.),578; Brackett v. Waite, 4 Vt. 389. •» Hunters v. Waite, 3 Gratt. 2G. 5 Boyd V. De La Mantagnie, 73 N. Y. 592. *> Sparkman v. Place, .5 Ben. 184; Patten v. Casey, 57 Mo. 118; j.ingke V. Wilkinson, 57 X. Y. 445; Cowen v. Alsop, 51 Miss. 158; Russell v. Hammond, 1 Atk. 15; Cutter v. Griswold, Walk. Ch. 457; Brooks v. Dalrymplc 12 Allen, 102; Pomeroy v. Bailey. ^^ X- H. 118; Lerow v. Wilmuth, 9 Allen, 380; Baldwin v. Tuttle, 23 Iowa, 74; Gridley v. Wat- son, .53 111. 193; Hinde v. Longworth, 11 Wheat. 199; Spicer v. Ayres, 53 How. Pr. 405; Chambers v. Sallie, 29 Ark. 407; Brown v. Spivey, .53 Ga. 1.55; Emerson v. Bemis, GO 111. .537; :Matthews v. .Jordan, 88 111. 602; McCole V. Loehr, 9 Cent. L. .J. 436; Taylor v. Eatman, 92 2s. C. 601. But see Kirksey v. Snedecor, 60 Ala. 192. ^ Mc Lean v. .Johnson. 43 Vt. 48; Cosby v. Ross, 3 J. J. Marsh. 290; Parish v. :Murphree, 13 How. 98; Williams v. Davis, 69 Pa. St. 21 ; Pratt V. Myers, 56 111 24; Van Wj^ck v. Seward, 6 l*aige. 62; Parkman v. Welch, 19 Pick. 231; Laird v. Scott, 5 Heisk. 314; Miller v. Miller, 23 Me. 22; Spirett v. Willows, 3 DeG. .T. & S. 293; Vertner v. Humphreys, 14 Smed. & M. 130; Wilcoxen v. Morgan. 2 Colo. 473. See Reade v. Livingstone, 3 .Johns. Ch..500; Churchill v. Wells, 7 Coldw. 364; Allaire V. Day, 30 N. .1. Eq. 232. ART. V. FRAUDULENT CONVEYANCES. 51 can object to a fraudulent conveyance who was not a cred- itor at the time it was made.^ Althouojh the cases involvinf^ questions as to the rights of subsequent creditors seem to be in conflict, yet a careful examination will show them to be substantially in harmony and reconcilable upon this broad proposition, that a voluntary conveyance, if made with fraudulent intent to defeat subsequent creditors, will render it void, and that, as in the case of existing creditors, the ques- tion is one lar^rely of intent .2 It may be added, that such conveyances are unformily held valid as between the par- ties and their representatives."^ It has been decided, that a conveyance of land to an in- tended wife, in consideration of marriaoje, is upon a valuable consideration.^ But a mere voluntary conveyance of prop erty by a husband to his wife, after marriao^e, not in fulfill- ment of a contract made before marriage, is not upon a 1 Sexton V. Wheaton, 8 Wheat. 229; Lloyd v. Buuce. 4 Iowa, 660; Stone V. Myers, 9 Minn. 311 ; Coolidge v. Melvin, 42 X. H. .521 ; Beach V. White, Walli. Ch. 496; Bullitt v. Taylor, 34 Miss. 740; Herschfeldt v. George, 6 Mich. 466; Phillips v. Wooster,36 X. Y.412; Kane v. Roberts, 40 Md. ,590; Phillips v. North, 77 111. 243; Lockhart v. Beckley, 10 W. Va. 87; Rose v. Brown. 11 W. Ya. 122; Kirksey v. Snedecor. 60 Ala. 192; Jones v. King, 86 111. 226; Tunuison v. Chamblin, 88111. 378; Shep- pard V. Thomas, 24 Kan. 780; Phoenix Bank v. Stafford, 89 X. Y. 40.5. - Dodd V. Adams, 125 Mass, 398. See Benton v. Jones, 8 Conn. 186; Tunnison v. Chamblin, 88 111. 378; Sexton v. Wheaton, 8 Wheat. 229. Dissenting opinion of Hand, J., Bullitt v. Taylor, 34 Miss. 740; Laughton v. Harden, 68 Me. 208; Shand v. Handley, 71 X. Y. 319; Claflin v. Mess. 30 X. J. Eq. 211; Mut. Life. Ins, Co, v. Laudfelder, 9 Mo. App. 285; Matther v. Heather, 34 X. J. Eq. 158; Barrows v. Barrows (Ind.). 9 X. E. Rep. 371; Marks v. Crow (Oreg.), 13 Pac. Rep. 55; Buckley v. Duff (Pa.), 8 Atl. Rep. 188. A subsequent creditor can only avail him- self of the fraud w hich is practiced against him. Harlan v. Maglaugh- lin, 90 Pa. St. 294; 3Iorrill v. Kilner. 113 111. 318. And see Jackson v. Miner, 101 111. 550. 3 Osborne v. Moss, 7 Johns. 160; Jackson v. Garnsey, 16 Johns. 189; Strange v. Graham, 56 Ala. 614, and cases cited supra., § 36. * Rainbolt v. East, 56 Ind. 538; MeCole v. Loehr, 9 Cent. L. J. 436. An antenuptial settlement of lands, though made by the intended hus- band with the design of defrauding his creditors, will not be set aside in the absence of the clearest proof of his intended wife's participation in the fraud. Prewit v. Wilson, 103 U. S. 221; Otis v. Spence, 102 111. G22. 52 CONVEYANCING. CH. I. valuable considei'iition, and such conveyance will be avoided if fraudulent as to creditors.^ The course of decisions in this country has been in favor of the general proposition that a voluntary conveyance, by cither party to a marriage contract, of his or her entire pro])crty, made without the knowledge of the other and just prior to the marriage, is a fraud upon the marital rights of the other. - § 38. Deeds Obtained by Fraud of the Grantee, may be avoided by the grantor, within a reasonable time after dis- covering the fraud, by first restoring the consideration, but not otherwise.^ No influence, however, short of fraud or duress exerted upon the grantor, will avoid a deed, unless it amounts to destroying his free agency.^ § 39. Conveyances Void for other Causes. — It may be remarked, though perhaps not properly a part of the sub- ject under consideration, that conveyances intended to give undue preference to creditors, and thus to prevent an equal distribution of the assets of a bankrupt, are void, as against bankrupt and insolvent laws.^ But such a conveyance can only be disturbed by proceedings in bankruptcy or insolv- ency.^ BiGELOW, C. J., says, "If a debtor is unable to pay all his debts, he commits no fraud ( in the absence of any statutory provision regulating the distribution of insolvent estates) by appropriating his property to the satisfaction of one or more of his creditors to the exclusion of all others. Nor does it make any difference that both creditor and debtor know that the effect of such appropriation will be to 1 McCole V. Loehr, 9 Ceut. L. J. 436. 2 Swaine v. Perine, 5 Johns. Ch. 482 ; Smith v. Smith, 6 N. J. Eq. 515; Petty V. Petty, 4 B. Mon. 217; Leach v. Duvall. S Bu?h, 201 ; Duncan's Appeal, 43 Pa. St. 167; Kline v. Kline, 57 Pa. St. 120; Logan v. Sim- mons, 3 Ired. Eq. 487. But .see Butler v. Butler, 8 Cent. L. J. 295 ; Ham- ilton V. Smith, 57 Iowa, 15. s Thayer v. Turner. 8 Mete. 550; Bassett v. Brown, 105 Mass. 557. But see Bartlett v. Drake, 100 Mass. 174. * Howe V. Howe, 99 Mass. 99. « Nary v. Merrill, 8 Allen, 451; Penniman v. Cole, 8 Mete. .500. But are not fraudulent per se under general law as to fraudulent convey- ances. Wilson V. Eifler, 7 Coldw. 31. « Giddings v. Sears, 115 Mass. 505; Foster v. Hall, 12 Pick. 89. ART. V. FRAUDULEMT CONVEYANCES. ^'^ deprive other ci'editois of the power of reaehinfr th«' debtor's property by legal process, in satisfaction of their claims. If there is no secret trust agreed upon, or under- stood, between debtor and creditor, in favor of the former, but the sole object of the transfer of property is to [)ay or secure the payment of a debt, the transaction is a valid one at common law. The distinction is between a transfer of property, made solely by way of preference of one creditor over others, which is legal, and a similar transfer made with a design to secure some benefit or advantajje therefrom to the debtor, which is fraudulent and illegal."^ Though, when such (insolvent or bankruptcy) ])roceedings are had, it seems that the assignee may go on, sell the land and con- vey a good title, without doing anything to set aside the conveyance by the debtor. - In some of the States, a deed delivered on Sunday would be void,^ But a deed made on that dav will be grood if delivered upon another day."* 1 Love V. Wells, 2.") Ind. SOiJ; Wight v. Geer, 1 Root. 474: Kepiur v. Keefer, (J Watts, "231 ; Towle v. Larrabee, 20 Me. 4(54 ; Allen v. Deminij, 14 X. 11. 133. 2 Swisher v. W^illiams, Wright (Ohio), 7o4; Love v. Wells, 2.") Ind. 50'). See Faxon v. Folvey. 110 Mass. 393. 3 Banfild v. Whipple. 14 Allen. 13. < Gibbs V. Thayer, li Cush. 30; Dwinel v. J*erley,32 Me. 197; Freelaud V. Freelaud, 102 Mass. 47"); Hellans v. Abercroinbie, 1.5 S. C. 110. So provided in Maine Rev. St. 1883, ch. 82, § 11.". 54 CONVKVANCING. ClI. II. CHAPTER II.— The Formal Pakts of a Deed. Article I. Differeut Forms of Deeds. II. As to the Date of a Deed. III. The Xames of the Tallies. IV. Of the Recitals. V. The Consideration. VI. The Granting Chiuse. VII. Tlie Description of tlie l'r()|)erly. VIII. The Habendum. IX. The Reddendum. X. Conditions, Limitations, and otlier Special Agreements. Xr. Uses, Trusts and Powers. XII. Covenants for Title. Xlir. The Testimonium Clause. ARTICLE 1 THE DTFFKI?KXT FORMS OF DKEDS. SECTION. 42. The conmion law conveyances. 43. Feoffment with livery of sei/in. 44. Gift and demise. 4.5. Deed of grant. 46. Lease. 47. Exchange. 48. Partition. 49. Release. 50. Contirmatioii. .51. Surrender. 52. Assignment. ART. I. DIFFERENT FORMS OF DEEDS. 55 53. Defeasance. 54. Conveyauces derived from the Statute of Uses. 55. Covenant to stand seized. 5(). Bargain and sale. 57. Lease and release. .58. Fine and recovery. .59. Quitclaim deeds. GO. Deeds in use in the United States. 61. Indentures and deeds-])oll. 62. The preseTit division of the parts of a deed. § 42. The Common Law Conveyances. — According to the elementary writers, the original conveyances deriving their effect from the common law were, feoffment, gift, grant, lease, exchange and partition. The following were denominated derivative conveyances : release, confirmation, surrender, assignment and defeasance. ^ As but few of these are in use at the present time, as distinct forms of conveyance, a very brief mention of each will be sufficient. § 43. Feoffment with Livery of Seizin was, perhaps, the earliest mode of conveyance used in the common law. It signified originally the grant of a fee or feud, but came in time to signify the grant of an estate in fee-simple. A feoffment was a formal statement by the feoffor, or owner of the estate, that he gave it to the feoffee, and was com- pleted by the feoffor's publicly putting the feoffee into possession of the land which he was to hold. The act of putting the party into possession, called livery of seizin, or delivery of possession, was either "in deed " or "in law," according as it took place on, or in sight of the land.^ It was essential that the feoffment and livcr\^ of seizin should be made simultaneously ; and, consequently, it was applicable only to estates which took effect in possession.^ It became usual at an early date to embody the terms of a feoffment in a deed, or charter ; but, for a long time after 1 2 Bl. Com. 310. 2 Co. Lltt. 4Sa; 2 Bl. Com. 315. 316. ^ A feoffment might be employed for the creation of a remaindi'r lim- ited after a term of years, as the grant of a term did not transfer the feudal seizin to the termor. 2 Bl. Com. 1G6. 06 CONVEYAN'IXU. CH. II. this custom was established, a dwd was not essential, ami if made, was only evidence of the transfer. It did not of itself pass the title. The conveyance by feoffment with livery of seizin has become infrequent, if not obsolete, in Knjjland ; and never was adopted, excej)! to a very limited extent, in this country .1 § 44. Gift and Demise. — We have seen that the name ♦' feoffment " came to siu^nity an instrument conferring- a fee-simple title. One which gave an estate tail, or one for life, was called gift, or a demise, or sometimes a lease, as the case might be.^ The word gift denoted also the motive of the conveyance, so that n feoffment or grant, when gratuitous, might b(! called a gift.'^ § 4/). Deed of Grant. — The term "giant" was an- ciently used to denote a transfer by deed of that which could not pass b}^ livery. In strictness of usage, it denoted the conveyance of incorporeal rights; but the act of 8 and 9 Vict. 106, § 2, made a simple deed of grant, wliieh took the place of the deed of lease and release, sufficient to con- vey corporeal as well as incori)oreal hereditaments.^ In the largest sense, the term is now applicable to ail transfers of real property.''' In New York, the term "grant" has been applie^^^^yi," or ex- change, be used; and this could not be supplied by any other word, or described by circumlocution. It seems also to have been necessary that the deed should be indented. -"^ § 48. Partition was a division of real estate made between coparceners, tenants in common or joint tenants. Livery of seizin was necessary in every case of partition, and if the partition was made between joint-tenants or ten- ants in common, a deed was also necessary.* Partition, as a means of securing a division of property owned in joint tenancy, tenancy in common or coparcenary, still exists, though not retaining its ancient features. In England, since the time of Elizabeth, the power of compelling par- tition has been exercised by chancery.'' In the United States the right has been recognized in courts of equity, as well as in courts of law, under provisions of statute.*" § 49. Release was the form of assurance used to con- vey a right or benefit, to the owner, of some existino; estate in possession, or of such an interest as qualified him for receivino; or availino; himself of the rijjht or benefit so relinquished;" such, for instance, as adding a reversion or iCo. Litt. :Aa. 2 Deau'sPrinc. of Coiiv. 303. 3 Co. Litt. 51; 3 Wood, Conv. 243; Watkins, Couv. b. 2, cli. .">; Cruise, Dig. Tit. 32. ^ 2 Bl. Com. 324. 5 Wash, on Real Prop. (;77; Story's Eq. .Jur., § (U7. « Whitton V. Whitton, 3GX. H. 32G; Patton v. Wagner, 19 Ariv. 233; Spitts V. Wells, 18 Mo. 468; Adam v. Ames Iron Co., 24 Conn. 230; Greenup v. Sewell, 18 111. .•)3; Wilbridge v. Case, 2 Carter (Ind.), 36. " Burton Iveal Prop. 1."); Shep. Touch. 320. ART. 1. DIFFERENT FORMS OF DEEDS. 59 remainder to an estate for life or for years, or passing an undivicled sliare in land to a joint tenant. In every case it was nceessar}' that there should be an actual privity of estate at the time between the releasor and releasee, who must have an estate actually vested in him capable of en- largement.' The estate of the releasee being already in possession, no livery of seizin was necessary, but a deed was required in every case of an express release by act of the parties.- The words generally used in such a convey- ance were "remise, release and forever quitclaim," ^ cor- responding to our quitclaim deeds. But the technicalities of the English law as to releases are not generally applicable in this country ;* though in some States they only differ from a quitclaim deed, in that the latter is regarded as an original conveyance in American law.'' § 50. Coiiftrmation, or confirmation is defined to be "the conveyance of an estate, or the communication of a rio-ht that one hath in or unto lands or tenements, to another that hath the possession thereof, or some other estate therein, whereby a voidable estate is made sure and unavoidable, or 1 2 Bl. Com. 32.0. 2 Deau's Priuc. Conv. 304. 3 Litt. § 44.5. < 2 Bouv. Inst. 416. At common law a freehold title could be leased in live waj's : 1. To the tenant of the freehold in fact or in law without au}- privity. 2. To the remainderman. 3. To the reversioner without privit.y. 4. To one having a right only "by privity. 5. To one having a privity only without right. But in this country, the technical rules relating to releases are generally held not to apply and a quitclaim deed is considered as passing the title of the releasor, without any warranty as to outstanding title or incumbrances, but merely against the grantor himself and those claiming under him, either by descent or subsequent conveyance. Smith v. Bank, 21 Ala. 12.5. 5 Kerr v. Freeman, 33 Miss. 292: Rogers v. Hillhouse, 3 Conn. 398; Hall V. Ashby, 9 Ohio, 9G; Wade v. Howard, G Pick. 492. A deed of release and quitclaim is as effectual, for the ])urpose of transferring title to land, as a deed of bargain and sale. Doe v. Keed, .5 111. 117. See, as to quitclaim deeds, § 59. And in many of the States a deed of quit- claim and release will pass all the estate that could lawfidly be con- veyed by deed of bargain and sale. Stimson's Amer. St.. $ 1472. 60 CONVEYANCING. ClI . 11. whereby a paiticular estate is incieased or enlarged."^ Confirmation may make a voidable or defeasible estate good, but cannot operate on an estate void in law.- To make a valid confirmation the party must be ap[)rised of his rights; and where there has been a fraud in the transaction he must be aware of it and intend to confirm the transaction.^ Though not in general use in this country, a confirmation deed will be given effect, under certain circumstances, as a barjrain and sale."* § 51. Surrender is defined by Lord Coke to be "a yield- ing ui) of an estate for life or years to him -who has an im- mediate pstate in reversion or remainder, by which the les- ser estate is merged in the greater by mutual agreement."^ A surrender was the converse of a release. The latter op- erated by the greater estate descending upon the less, the former by the falling of a less estate into a greater. A sur- render differed from a release also in not requiring any deed; but it was essential, as in case of a release, that there should be privity of estate between the parties. § 52. Assignment is the transfer of the interest one has in lands and tenements. It is more particularly api)lied to the transfer of the unexpired residue of a term of years, in which case it has the effect of putting the assignee in the place of the former lessee, and making him at once liable to all the obligations of the lease, although he may not have entered on the land.'' This subject is discussed at some length in a future chapter.' § 53, Defeasance was a collateral deed, made at the same time as a feoffment, and containing certain condi- tions, on performance of which the estate created might be 1 Shep. Touch. 311. And see English v. Youug, 10 B. Mou. 148: Ing V. Rnnvii, :{ Md. Ch. -y2\. 2 Co. Litt. 2!).'). Bninhain v. San .Jose, 24 Cal. 58.'). 3 As to the eontirinatiou of a defeasible estate, see Adluiu v. Yard, 1 Rawle, 171 ; Stroble v. Smith, 8 Watts, 280. * Lovo V. Shields, 3 Yerg. 40r»; Faniitleroy v. Dunn. 3 H. Mon. .")!t4. ^ Co. Litt. 337/>. 6 Deane's Princ. Conv. 302. 7 Chapter VII, Art. 11. ART. I. DIFFEUKNT FORMS OK DEED^. 61 defeatcnl.^ It was in this mannoi- that mortuaires were usually made, the mortgagor, enfeofting to tlie mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on payment of the money borrowed at a certain day.'- But after the pass- ing of the Statute of Uses, it became customary to insert the conveyance of an estate, and any conditions to which the conveyance was made subject, in the same deed; and thus separate deeds of defeasance fell into disuse.^ § 54. The Couveyances wliicli Derived their Effect from the Statute of Uses were covenants to stand seized, bargain and sale, lease and release. § 55. A Covenant to Stand Seized to Uses was a cov- enant whereby a man, seized of lands, covenanted in con- sideration of blood or marriage to stand seized of the same to the use of his child, wife or kinsman, for life, in tail or in fee ; in which case the statute executed the use by trans- ferring it into legal possession. This conveyance could only operate upon a consideration of blood or marriage.* It has long since fallen into disuse as a mode of conveyance, though the doctrine is frequently resorted to by courts in order to give effect to the intention of parties who have undertaken to convey lands by deeds, which are insufficient 1 2 Bl. Com. 327. 2 In mauy States where a conveyance of real estate is made, which by another instrument or writing shall be made defeasible, such other in- strument must be recorded therewith or the grantee takes nothing under the principal conveyance. Stimson Amer. Stat., § 1S60. But in others, unless defeasance is recorded, the first conveyance passes an absolute title, except as against the maker of the instrument, his heirs and devi- sees. Mass. rub. Stat. 1882, ch. 120, § 23 ; Me. Rev. Stat. 1883, ch. 73, § 9. Pa. Stat. 1881, § 91; Ind. Eev. Stat. 1881, § 2932: Mich. Howell's Ann. Stat., § .5086; Wis. Rev. Stat. 1878, § 2243; Minn. Gen. Stat. 1878, ch. 40, § 23; Kan. Comp. Laws 1879, ch. 68, § 2; Cal. Code 1876, § 7950. Oreg. Gen. Laws 1872, ch. 0, § 28; Dak. Civ. Code, § 1741; Wy. Laws, 1882, ch. 1, § 18; Ala. Code, 187G, § 2168. 3 Deane's Princ. of Conv. 304 ; Co. Litt. 236. * 2 Bl. Com. 338. And see Bell v. Scammon, 15 X. H. 381 ; Rollins v. Riley, 44 N. H. 9; Watson v. Watson, 24 S. C. 228. 62 CONVEYANCING. (11. II. for the [)urpose under the rules required in other forms of conveyance.^ § 56. A Hargaiii and Sale was a contract or baro:ain by which the bargainor, for some })ecuniary consideration,^ bargained and sold, that is, contracted to convey the land to the bargainee, whereupon a use arose in favor of the latter, i2Washb. Real Prop., 4th ed., 42,5; Horton v. Sledge, 29 Ala. 478; Exum V. Cauty, 34 Miss. .569; Rogers v. Eagle Fire Co., 9 Wend. (511; Wall V. Wall, 30 Miss. 92. It is generally held that, if a deed cannot take effect as a bargain and sale for want of a pecuniary consideration or because the estate is limited m ftituro, yet, in order to cany out the intentions of the parties, it may be valid as a deed of covenant to stand seized, if a consideration of blood exists. Eckman v. Eckman, G8 Pa. St. 460; Jackson v. Zwart, 20 Johns. 84; Brewer v. Hardy, 22 Pick. 376; Bank v. Houseman, 6 Paige, ?)26; Wallis v. Wallis, 4 Mass. 135. But the consideration of blood or marriage must exist. J^mery v. Chase, 5 Me. 232; Jackson v. Sebring, 10 Johns. 515; Gault v. Hall, 26 Me. 561; Bell V. Scannnon, 15 ^N. II. 381. But in a casein Massachusetts the court, after discussing the reason of the rule which existed in England that a consideration of blood or marriage is absolutely essential to the validity of a covenant to stand seized, held that "it was artificial and construct- ive, depending entirely upon the English Statute of Enrollments and having no pretext for continued existence where the provisions of that statute do not apply," and that the deed in that case might be main- tained as a covenant to stand seized, notwithstanding the absence of the relation of blood or marriage between the grantor and grantee. Trafton V. Ilawes, 102 Mass. 533. And see Jackson v. Caldwell, 1 Cowen, 639; Exum V. Canty, 34 Miss. 569. - If there is is no pecuniary consideration, it cannot operate as a bargain and sale. Jackson v. Cadvvell, 1 Cow. 639; Wood v. Chapin, 13 N. Y. 509; Corwin v. Corwin, 6 N. Y. 342. Though it has been held that any consideration that is valuable is suflicient. Den v. Hanks, 5 Ired. 30; Jackson v. Leek, 19 Wend. 339; Wood v. Beach, 7 Vt. .522; Busey v. Reese, 38 Md. 264. And in Illinois, Missouri and Tennessee, a consider- ation has been held unnecessary. Perry v. Price, 1 Mo. .553; .Tackson v. Dillon, 2 Overt. (Tenu.) 261 ; Fetrow v. Merrlwether, .53 111. 278. A deed, not good as a lease and release, nor as a covenant to stand seized to use, for want of a proper consideration, nothwithstanding the words "remise, release and (piitelaim," is good as a deed of bargain and sale, if it expresses a pecuniary consideration and evidently intends to convey in presenti all the estates of the grantor. Lynch v. Livingston, 8 Barb. 463. Any writing that sufficiently identities the parties, the land, acknowledges a sale in fee of the vendor's right, for a valuable consideration, is signed and sealed by the grantor and duly attested, is a good deed of bargain and sale. Chiles v. Couley's Heirs, 2 Dana (Ky.), 21. And see Wilson V. Irish, 62 Iowa, 260. ART. I. DIFFEKKNT FOUMS OF DEEDS. 63 to whom the seizin was transferred by force of the Statute of Uses.^ It will be seen that the statute thus obviated the necessity of livery of seizin.- To prevent secret convey- ances and give notoriety to the ownership of freehold es- tates, it was enacted by the same statute that such bargains and sales should not enure to pass a freehold, unless the same were made by indenture, and enrolled within six months after execution.^ But bargains and sales of chattel interests were not thought of sufficient importance, or were overlooked in framing the statute, and were not required to be enrolled. The conveyancers seized upon this omission as a means of avoiding the intention of the statute by the invention of the assurance next to be considered. § 57. Lease and Release. — We have seen that, if a lessee were in the actual possession of the land demised, no livery of seizin was requisite to convey the remainder of the estate to him ; and also, that a bargain and sale, for a valu- able consideration, raised a use in the bargainee, which the statute turned into actual possession. Thus, a bargain and sale for a term of years made the bargainee a lessee for years ^ la most of the States the fonii of deed in general use is that of bar- gain and sale. 2 Washb. on Real Prop. 4th ed. 439. Whether a freehold can be limited to commence in futuro by a deed of bargain and sale, is a subject whii,h has been much discussed and upon which the authorities are not agreed. The negative has been held by some courts. Pray v. Pierce, 7 Mass. 381; Parker v. Nichols, 7 Pick. 115; Gale v. Coburn, 18 Pick. 397; Brewer v. Hardy, 22 Pick. 376; Harden v. Chase, 32 Me. 329; Welsh v. Foster, 12 Mass. 96. But contra, Jackson v. Dunsbagh, 1 Johns. Cas. 96; Rogers v. Eagle Fire Co., 9 Wend. 611; Jackson v. Zwartz. 20 Johns, 87; Davis v. Speed. 12 Modern, 39; Wyman v. Brown, 50 Me. loO; Jordan v. Stevens, 51 Me. 79; Drown v. Smith, 52 Me. 141; Brewton v. Watson, 67 Ala. 121. Even did not the statute sanction such a conveyance, nothing in the policy of the law forbids it. Ferguson v. Mason, 60 Wis. 377. The weight of authority at the present day is in support of the proposition that a freeliold can be so limited. 3 Washb. on Real Prop. 4th ed., 373. In many States, by statute any estate, free- hold or chattel may be made to connnence in futuro by deed or will, whether with or without the intervention of a precedent estate. Stini- son's Amer. Stat., § 1421. ^ Cheney v. Stevens, 9 Mass. 77. 3 2 Bl. Com. 338. 64 CONVEYANCING. CH. II. in actual possession, and, as such, capable of taking a release of the remainder of the grantor's estate, without any livery of seizin or other j)ul)lic ceremony. This gave rise to the assurance by lease and release, which came to be almost the universal mode of conveving freehold estates.^ It consisted first of an instrument stating that the vendor, in consider- ation of some nominal sum, had bargained and sold the land to the purchaser for one year to commence from the day previous to the date of the deed, which was followed by a second deed releasing the reversion to him, by which he was put into possession of the whole estate intended to be con- veyed. Thus, a conveyance by lease and release was said to amount to a feoffment.'- The foregoing were called ordinary assurances: that next to be mentioned was called an ex- traordinar}' assurance. § 58. Fine and Recovery was the method used for con- verting an estate tail into a fee-simple, by means of a pre- arranged suit between the tenant in tail, as defendant, and a friendly plaintiff, in which the latter was declared owner in fee-simi)le of the lands entailed; and thus the estate be- came alienable, and might be dealt with in any manner that the tenant in tail should desire. Upon the passage of the Statute of Uses, where a fine and recovery was accompanied by a declaration to uses in the proper form, it constitued a conveyance to uses.^ § 59. Quitclaim Deeds. — Before passing, it is thought proper to notice a form of deed which is peculiarly Ameri- can and is recognized in almost all of the States, either by statute or by decisions of court. Though, at common law, 1 This form of conveyance was in use in England until the Statute 8 and i) Viet. TOO. It has been employed in this country, though very rarely. Williams on Keal Prop. 1G4; Lewis v. IJeall, 4 liar. & Mcll. 488; Craig V. Pinson, 1 Cheves, 272. 2 Co. Litt. 270; 2 Bl. Com. 399; Deane's Princ. Conv. 308, 309. 3 2 Waslil). Heal Prop. 4th ed. 423. But this mode of conveyance was abolished in England by statute, and never has prevailed to any extent in this country. But see McGregor v. Comstock, 17 N. Y. 102; Richman v. Lippincott, 5 Dutch. 44; Croxall v. Shererd, 5 Wall. 2G8; Moreau v. Detchemendy, 18 Mo. 527. ART. 1. DIFFEKKNT FORMS OF DFKOS. <>5 a deed of release made to one who has neither an estate in, nor possession of hmd woidd be void, yet this deed of " quitehiiin " has, by long established practice, been held as effective to pass the title to laud as any other. ^ In most respects it resembles the old deed of release, except that the latter, under the strict construction of the common law, could oidy be made to one who had some interest in, or possession of tiie land.^ Some of our courts in constru- ing the effect of a quitclaim deed, hold that, as it only ])urports to convey such title as the grantor has, it does not give one who claims under it the right of a bona fide purchaser without notice.^ But we confess our inability to see any good reason for the rule. It would hardly be claimed, since the abolition of the tortuous operation of a feoffment, that any form of deed can pass any greater title than the grantor has in the premises ; though a grantee may acquire rights, upon the principle of estoppel, which were not conveyed to him by deed. As the covenants in a deed are no part of the conveyance, and since a quitclaim deed is held sufficient to pass whatever title the grantor has, whether legal or equitable,^ independent of any interest having pre- 1 Hunt V. Hunt, 14 Pick. 374; Bayer v. Cockerill, 3 Kan. 282; Rogers V. Hillhouse, 3 Conn. 398; Hall v. Ashby, 9 Ohio, 96; McConnel v. Reed, 4 Scam. 117; Kerr v. Freeman, 33 Miss. 292; Bogy v. Shoab, 13 Mo. 380; Touchard v. Crow, 20 Cal. 150; Hamilton v. Doolittle, 37 111.482; Downer V. Smith, 24 Cal. 123; Piatt v. Brown, 30 Conn. 336; Young v. Clippin- ger, 14 Kan. 148; Thompson v. Spencer, 50 Cal. 532. A quitclaim sim- ply employing the words " remise, release and forever quitclaim," con- tains sufficient operative words of conveyance. Wilson v. Albert, 89 Mo. 537. ' Kyle v. Kavanagh, 103 Mass. 356; Rowe v. Beckett, 30 Ind. 154; Ely v. Stannard, 44 Conn. 529; Kerr v. Freeman, 33 Miss. 292. See supra, § 49. 3 May v. Le Claire, 11 Wall. 232; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Stoffel v. Schroeder, 62 Mo. 147. •* Farmers' Loan Co. v. McKinney, 6 McLean, 1; Jackson v. Hubble, 1 Cowen, 613; Field v. Columbet, 4 Sawyer, 523; Patterson v. Snell, 67 Me. 559; Butcher v. Rodgers, 60 Mo. 138; Walker v. Lincoln, 45 Me. 67; Carpeutier v. Williamson, 25 Cal. 154; Smith v. Pollard, 19 Vt. 272; Coe V. Persons, 43 Me. 432. I3l> CONVEYANCING. CI I. 11 \ ioiisly lnHMi vested in the grantee or otliei' person, we can conceive of no sufficient reason why one who is actually a bona fide purchaser, for value, without notice, should not be so regarded, even though he receives a quitclaim deed. And some of the courts, taking a like view of the question, have not adopted the rule above stated.' A (luitclaim deed will not pass an after-acquired title. But in a recent case in Illinois it was held that, if a party, having the equitable litle to land and being entitled to the legal title, conveys the same by a quitclaim deed, and subsequently acquires the legal title, it will enure to his grantee.'- So it has been held, that a quitclaim deed passes to the grantee the cov- enants running; with the land, unless there be words limit- JMor the convevance.-^ § 60. The Deeds in Use in the United States were de- rived from the ancient assurances, and some of them, particu- larly those affecting leasehold estates, are almost identical; but our purpose, at present, is to speak of the form of deeds ordinarily used for the conveyance of estates in fee* Of these it may be said that, while the forms in use in all of ' Pittiugill V. Deviii, 35 Iowa, 354; McConnel v. Keed, 4 Scainm. 117; Kowe V. Beckett, 30 lud. 154; Graff v. Middleton, 43 Cal. 341. - W(!lch V. Dutton, 79 111. 465. And see Frost v. Methodist, etc. .Soc, 50 Mich. 02. s Brady v. Spurck, 27 111. 478. And sec Green Bay, etc. Canal Co. v. Hewett, 55 Wis. 96. •• Courts, both in Enj^land and in this couutrj-, arc very lil)eral in con- struing deeds, so as to give them effect if possible; and although intended to come within one class, if they cannot be made operative in that form, on account of some defect, they are often found capable and ])ermitted to accomplish the purposes of the parties, by a construction that brings them witliin some other class of deeds known to the law. 3 Washb. on Jieal Prop. 4th ed. 357. And see Exum v. Canty, 34 Miss. 534; Steel v. Steel, 4 Allen, 417; Horton v. Sledge, 29 Ala. 478; AVall v. Wall, 30 Miss. 91 ; Ecknian v. Eckman. OS Pa. St. 400. Under the California statute of Ki:U.s. 67 the Stiites liiive probably been borrowed from some of the comiiion-hivv conveyances, tliey have been more or less modi- fied by statute or usance, so that none of them is exactly identical with the former. Yet, with the exception of a few of the States in which certain requisites are prescribed, more or less in conflict with the common law, and with the ex- ce[)tions created by the introduction of recjistry laws, the common-law assurances may be regarded as sufficient and effectual forms of conveyances.' Mr. Washburn, in this connection, refers to a number of instances showing a gen- eral recognition of the common-law forms of conveyance, even where the subject has been regulated by statute.- But it is not our purpose to attempt to review the legislation upon this subject, or to discuss the different forms of deeds in use in the several States. So far as a form is concerned, it is thought sufficient, for the purposes of this work, to follow a general division of the parts of a deed, as indicated at the head of this chapter, which, it is believed, embraces the constituent elements of the conveyances in common use in all the States."' § 61. The Distinction between the Form of an Indent- ure and a Deed-PoU is sometimes recognized by the courts in the construction of deeds, and should, therefore, be men- tioned under this head. The word "indenture" is used to describe a deed to which two or more persons are parties, and in which these enter into reciprocal obligations toward each other; whereas, a deed-poll is properly one in which only the party making it executes it, or binds himself by it as a deed, though the grantors or grantees therein may be several in number.^ Indentures were formerly executed in 1 In New York, deeds are required to be mado directly to the person in whom the possession land profits are intended to be vested, and not to the use of or in trust for such person. N. Y. Rev. St. 4tli ed., p. 148. So in Minnesota. Stat, at Large, 1S73, Vol. 1, ch. 35, § 1. And see Montgomery v. Sturdivant, 41 Cal. 200. - 3 Washb. on Real Prop., 4th ed. 3r)S, 362. 3 See Chiles v. Conley's Heirs, 2 Dana (Ky.j, 21. * Williams on Real Prop. 155; 3 Washb. on Real Prop., 4th ed., 310. 68 CONVEYANCING. CH. II. two or more parts upon the same piece of paper or parch- ment, and then cut apart with an irregular line, so that the edge of one part would lit into the other, and thus estab- lish the authenticity of the several parts. When the parch- ment was so intended it was usual for each party to sign but one of the parts interchangeably; but at length it be- came usual for each jiarty to execute all the parts, and to simply cut the deeds with an indented or waved line at the top. Such conveyances usually commence now with the words "This indenture," etc., and are no longer indented. A deed made by only one party was [)olled or shaved even at the top, and was therefore, called a deed-poll. They usually begin with the words, " Know all men by these presents," etc., and are commonly written in the first per- son; yet both indentures and deeds-poll may be written in either the first or third person.^ It has been held that a party to an indenture, made :ind executed by another to him, will become a covenantor and liable as such, though he may not sign and seal the deed, if he is named in it and accepts it, and it contains covenants which, by the terms of the deed, he is to perform;'^ while in a deed-i)oll the rem- edy against a grantee for failing to perform a duty [)re- scribed in the deed was assumpsit. This distinction how- ever, has not been generally followed. Thus, in some States, the remedy in either case is assumpsit,-' while in others covenant will lie though it be a deed-poll.* § 62. The Present Divisions of the Parts of a Deed. — The formal parts of a deed are ordinarily treated under the following heads: 1. The premises. 2. The habendum. 3. The reddendum. 4. Conditions. 5. Warranty. 6. Cov- enants; the premises embracing all that part of the deed preceding the habendum. In the present division of parts we have purposely disregarded technical rules, for conven- 1 Shep. Touch. 51, 53i Currie v. Donald, 2 Wash. (Va.) 58. 2 Finley v. Shnpson, 22 N. J. L. 311. ■'Goodwin v. Uiibert, 9 Mass. .510; Moule v. Weaver, 7 Pa. St. 329; Johnson v. Muzzy, 45 Vt. 419; Hinsdale v. Ilumphey, 15 Conn. 431. t Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. ART. II. DATE Or A DEKD. M'.t ieiK-e of reference, and in order to treat separately each point to be noticed in examining or drawin^r a deed, in the order in which thev usually occur. ARTICLE n AS TO THE DATE OF A DEED. SECTION. 65. General rules as to the date. § (55. The Date is sometimes inserted at the commence- ment of a deed, and sometimes in the testimonium clause. It is immaterial where it appears; nor is it essential to the validity of a deed that it be dated, provided the date of its delivery can be proved,^ The instrument takes effect from the time of delivery and not from its date.- The date of a deed may be contradicted, as not essential to its operation,^ though it is prima facie evidence of the time of its execu- tion and delivery.* But when a deed is acknowledged on a day subsequent to its date, and there is no proof of delivery prior to the acknowledgment, it must be presumed to have been delivered afterwards,' or at least as early as the day of 1 Co. Litt. 46; Thompson v. Thompson, 9 Ind. 323. 2 Meech v. Fowler, 14 Ark. 29; Jackson v. Shooumaker, 2 Johns. 235; Costigan v. Gould, 5 Den. 290; Lyerly v. Wheeler, 12 Ired. (N. C.) L. 290; Nevlin v. Os))orn. 4 Jones (N. C.) L. l.")?; Cohiuhoun v. Atkinson, 4 Munf. (Va.) 550. 3 Blake v. Fash, 44 111. 302. And this may be done by parol evidence. Sweetser v. Lowell, 33 Me. 440. * Darst V. Bates, 51 111. 439; 1 Wood's Conv. 195; Shep. Touch. 5S, 72; Billings V. Stark, 15 Fla. 297; Ellsworth v. Central K. K. Co., 34 N. J. L. 93; McConnell v. Brown, Litt. (Ky.) Sel. Cas. 459; Jayne v. Gregg, 42 111. 413; County of Henry v. Bradshaw, 20 Iowa, 355; Ford v. Greg- ory, 10 B. Mon. 175; Sweetser v. Lowell, 33 Me. 44G; Harris v. Norton. 16 Barb. 264. But see Fontaine v. Boatmen's Saving Inst., 57 Mo. 552. 5 Blanc-hard v. Tyler, 12 Mich. 339. 70 CONVEYANCING. CII. 11. acknowledgment.^ The presumption arising from its date, that it was delivered on that day, cannot stand against the positive averments in the acknowledgment, that it was ex- ecuted afterwards.- In another case, where the date writ- ten upon a revenue stamp was later than that of the deed, the court held that the presumption was that the delivery was made at the time of the cancellation of the stamp.^ The prima facie presumption as to the date of the delivery of a deed ma}' be rebutted by proof.* x\nd where the proof shows that the deed was antedated, the date furnishes no indication of the time of its actual execution.'* It has been held that a deed, executed by several grantors, is to be con- sidered as dated when the last grantor executed it.'' And the Supreme Court of Kentucky ruled that, when the date in the body of a deed was one year before the date at the foot, the latter should be considered as the true date of the execution of the deed.^ ARTICLE III. rilE NAMES OF THE PAKTIES. SECTION. 67. It is sufficient if the parties are distinguished. 68. The grantor should be named in the deed. 69. A deed must be to some certain person or coiporation named. 70. Illustrations of the foregoing principles. 71. Matter descriptive of the parties. § 07. In Xaming the Parties the Ohject is to Distin- guish tliose Intended from the Rest of the World. — If ' Clark V. Akers. 16 Kan. 166; Loomis v. Pingree, 43 Me. 299. ■^ Llenderson v. Baltimore, 8 Md. 353. 3 Van Rensselear v. Vickery, 3 Lansing, .57. * Elsey V. Metcalf, 1 Denio, 323. '"• Costigan v. Gould, "> Denio, 290. « Kurtz V. Hollingshead, 4 Cranch C. C 180. 1 Morrison v. Caldwell, 5 T. B. Mon. 426. ART. III. NAMES OF TIIK rAKTlES. 71 this is effected it is sutKcient, though the true name be not used, or even no name at all. But the persons intended as parties must be designated in some manner in the deed.' The maxim is, " That is certain which may be made cer- tain."'- Therefore, any name or description which ascer- tains the parties with certainty, so as to distinguish them from all others, is sufficient, though it be not accurate in point of fact.'' Hut any uncertainty as to the persons in- tended would render the deed void.* It seems that if the grantor's true name is recited in the body of the deed, and he also acknowledges it by his true name, the fact that he signs it by a wrong name does not invalidate the convey- ance.-^ § 68. The Grantor should be Named in the Deed. — It was held by the Supreme Court of New Hampshire that one 1 Chase v. Palmer, 29 111. 306. There must be a grantee named. Whitaker v. Miller, 83 111. 381. ■^ Broom's Leg. Max., 7th ed. G22; Co. Litt. 3a; 1 Wood on Couv. IGO, 164, 171. Applied to sustain a deed to "P. and her children, and to their heirs and assigns forever." Hamilton v. Pitcher, 53 Mo. 334. A deed to "P. or her heirs," held good. Hogan v. Page, 2 Wall. 607; Keady v. Kearsley, 14 Mich. 225. And a deed to '•' the heirs of A. B.," he being dead. Booue v. Moore, 14 Mo. 420; Shaw v. Land, 12 Mass. 447. Also a deed " to the children of A." Hogg v. Odom, Dudley (Ga.), 185. But see Hunter v. Watson, 12 Cal. 363. But a deed, made to the heirs of a living person named therein without giving the names of the heirs, is void. Morris v. Stephens, 46 Pa. St. 200; Winslow v. Winslow, 52 Ind. 8. A grantee, if not named, must be so described as to make him capable of designation. Simmons v. Spratt, 20 Fla. 405. 3 1 Wood on Conv. 160, IGl ; Newton v. McKay, 29 Mich. 1. The name by which a person is generally known is sufficient, though different from that of his baptism. Counden v. Clerke, Hob. 32a. See also Erskine v. Davis, 25 111. 251. Held that evidence aliunde a deed is admissible to identify the grantor. Waketield v. Brown (Minn.), 37 N. W. Kep. 788. ^Thomas v. Marshfield, 10 Pick. 367; Garnett v. Garnett, 7 T. B. Mon. 545. A deed to a dead man and his heirs is a nullity, for -'heirs" is not a word of purchase. Hunter v. Watson, 12 Cal. 363. ^ Middleton v. Findla, 25 Cal. 76. And see Lyon v. Kaiii, 36 111. 362. Where the true owner of land is the person who, in fact, executed and delivered a deed of conveyance, it will be effectual as between the grantor and grantee, although the grantor executed it under an assumed name or the one who drew the deed made a mistake in his Christian name. Wakefleld v. Brown (Minn.), 37 X. W. Rep. 788. 72 CONVEYANCING. CH. II. wlio sign.>, seal.-; and delivers a deed is bound as grantor by such acts, altli()uo;li he is not named as jrrantor in the dccd.^ But that doctriiK; seems to have been overruled by later cases, which hold that somethinfy more is necessary, viz., that the party must, in the deed, show, by apt words, an intention to convey.- The rule is thus stated b}^ Taney, J.: "Now, in order to convey by grant, the party possessing the right must be the grantor and use apt and proper words to conve>^ to the grantee; and merely signing, sealing and acknowledging an instrument, in which another person is fjrantor, is not suflScient." -^ § ()9. A Deed, to be Valid, must be to some Certain Person or Corporation Named, who can take by force of the same and hold in his own right, or as a trustee. An unincorporated community, association or town cannot pur- chase and take in succession.* So a deed to a fictitious person,'^ or to a cor})oration which has no existence, is void." Or, if the deed itself raises an uncertainty as to the party intended, it will be void. But there is an important differ- ence between a description of a grantee in a deed which is inherentl}' uncertain and indeterminate and one which is merely imperfect, and cai)able, on that account, of different ai)plications — extrinsic evidence is not admissible, in the former case, to make the conveyance effectual in favor of any particular person, while in the latter case a resort to ' Elliott V. Sleeper, 2 N. H. 525. 2 Catliu V. Ware, 9 Mass. 218; Peabody v. Hewett, 52 Me. 33. ^ Agricultural Bank v. llice, 4 How. 225. See also Harrison v. Simons, 55 Ala. 510; Cliapnian v. Crooks, 41 Mich. 595. Saunders v. Hackney, 19 Lea (Tenu.), 194; Adams v. Medsker, 25 W. Va. 127; Gaston v. Weir (Ala.), 4 South. Rep. 258. ^ Natchez V. Elinor, 17 Miss. .544: Jackson v. Corey, 8 Johns. 388; German Association v. Scholler, 10 Minn. 331; llornbeck v. Westbrook, 9 .Johns. 73. liut see .fudd v. Woodruff, 2 Koot (Conn.), 298. •'■' Lillard v. Ruckers, 9 Yerg. 64; Muskingum Turnpike v. Ward, 13 Oiiio, 120. A patent issutul to a person not in existence is a nullity, but one issued to a person under an assumed name is not void, and a trans- fer by such person under his assumed name will give title. Thomas v. Wyatt, 31 Mo. 188. '■■ noufliitt V. Stin( . CH. II. deed by reason of his imine being misspelled — proof of its execution by him is sufficient.^ A deed to a partnership, in the company name, in which only the surnames of a part of the company arc mentioned, tlic}^ being well known mem- bers, cannot take as grantees; but those named can and will hold in trust for themselves and their associates. ^ Yet it has been held that a deed made to a firm by name, with- out naming any individual members of the tirm, is not for that reason void, but may be explained by parol. ^ A deed from L., senior, to the "heirs of L., junior, in considera- tion of the natural love and affection for his grandchil- dren," L., junior, being alive at the execution and delivery of the same, was held not void for uncertainty, as the word "grandchildren" shows that the word "heirs" is to be taken in its popular sense .^ And where a deed was made to Louis S., no person of that name being known, and the circumstances clearly showed that the intended grantee was Arnold S., who had possession of the deed, it was held that title was in Arnold S., and that the ambiguity could be shown by parol. ^ § 71. In every well-written Deed it is usual, after the Names, to add some Description of the Parties and the Character in which they Act. — The occupation, place of residence and matters of that character, are often of great assistance in identifying the parties intended, or directing where they may be found in the event that an inquiry is to be made of them. Where the parties act as trustees, guardians or executors, this fact should always be stated. Where such a deed does not in apt words convey the land as that of the real party in interest, though signed by the trustee, executor or guardian, and describing himself as such, it will be strictly construed as his own persona ' O'Meani v. North American, etc. Co., 2 Nev. 112. 2 Beaman v. Whituey, 20 Me. 413. And see Arthur v. Weston, 22 Mo 378; McCauley v. Fulton, 44 Cal. .355. 2 Murray v. Blackledge, 71 N. C. 492. ^ IIuss V. Stephens, 51 Pa. St. 282. ••* Stack V. Siorelkow. 12 Wis. 234. ART. IV. THE RECITALS. 7.') (leed.^ It was also held that where an heir :it law under- takes to convey the inherited land, and in one part of the deed describes himself as agent for the heirs of the de- ceased, but in all other parts of the deed speaks of himself as the granting party, and executes the deed in his own name, the deed should be admitted in evidence as his own deed. 2 Bat where the party is sufficiently identified with- out the description, and the latter is incorrect, it will be rejected as surplusage.' ARTICLE IV. OF THE RECITALS. SECTION. 73. The purpose of the recitals. 74. Effect of recitals as notice. § To. The Purpose of the Recitals. — In well drawn deeds, such facts as the death of a former owner and the succession of an heir, the survivorship of a joint tenant, ov the happening of an}' contingency upon which one estate is to determine and another take effect, and like circum- stances which keep up the connection in the chain of title, are uniformly recited Such facts are frequently of the first and most essential importance, and without these re- citals the title would ap[)ear defective. It is to be remem- bered, however, that recitals arc not evidence of the fact, when the fact requires proof,* unless made so by statute,^ 1 Bobb V. Baruum, 59 Mo. 394. 2 Endsley v. Strock, 50 Mo. 508. 3 Jackson v. Root, 18 Johns. 59; Jackson v. Clark, 7 Johns. 217. * Watson V. Gregg, 10 Watts, 289. 5 Under the statutes of Missouri the recital that a deed is executed by the grantor as administrator, is evidence of his appointment as adminis- trator. Johnson v. Beazley, 65 Mo. 250; Rev. Stat., Vol. 1, § 172. In 76 CONVEYANCING. CH. II, thouijh any person, being u party to the deed, and who gives this history of the title, would be estopped from de- nying it,^ as against one who has acted upon the faith of such representations .- liecitals are usually relied upon as affording a reasonable presumption of the correctness of the statement, especially when found in ancient deeds. "^ And, it may be added, that they are usually deemed satisfactory, except in peculiar circumstances w^hich call for more than ordinary caution. But a recital in a deed, that it is made at the request and by consent of certain persons, does not pass any legal title they may have in the premises, even though they also sign the deed.* § 74. The Recitals are Often of Great Importance as Georgia by statute a recital in deed of receipt of purcliase money does not estop the maimer from proving the contrary. Georgia Code 1882, § 2698. By statute in California and Dakota, if the operative words of a grant are doubtful, recourse maybe had to its recital to assist the construction. California Code 187(5, § 6068; DaliOta Civ. Code, § 614. 1 Clark V. Baker, 14 Cal. 629; Douglas v. Scott, ') Ohio, 199; Stow v. "Wyse, 7 Conn. 314; Van Rensselaer v. Kearney, 11 How. 322; Green v. Clark, 13 Vt. 158; Goodtitle v. Bailey, Cowp. 597; Bensley v. Burden, 2 Sim. & S. 524; Marchant v. Errington, 8 Scott, 210; Penrose v. Griffith, 4 Binn. 231. In most of these cases the question arose as to the effect of recitals by the grantor of tlie particular estate he claimed to own when there were no covenants in the deed. In Van Rensselaer v. Kear- ney, .swpra, Mr. Justice Nelson says: "The principle deducible from these authorities seem to be, that whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth, on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particular estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity Avith him shall be estopped from ever afterward denying that he was so seized and possessed at the time he made the conveyance." 2 Carver v. .Tackson, 4 Pet. 85; Hall v. Orvis,35 Iowa, 366. A stranger to the deed can never set up the recitals therein, by way of estoppel, as against a party to the deed. Allen v. Allen, 45 Pa. St. 473. See Sunder - lin V. Struthers, 47 Pa. St. 423; Whitaker v. Garnett, 3 Bush, 402; Rob- bins v. McMillan, 26 Miss. 434. ■' Hunt V. Jolinson, 19 N. Y. 279. * Chapman v. Crooks, 41 Mich. 595. ART, IV. THE IlECITALS. / ( Giving Notice of Some Dorniiint Title or Claim Against the Property. — It is a general rule that a man is regarded as notified of whatever appears in the instruments whicii con- stitute his chain of title/ and is bound by recitals adverse to him.'- Whether he actually reads thcni or not, he is equally chargeable with notice of their contents. And what- ever is sufficient to put him on inquiry, is sufficient to charge him with notice of whatever an ordinarily diligent search would have disclosed.^ Therefore, in the examina- tion of titles, all deeds referred to, on which the title is based, must be examined as to any facts which they may contain, at the purchaser's peril ; for he will take subject to the rights under them, of which he is constructively notified. The effect of a recital in the deed by which a party pur- chases is illustrated in the case of a grantee who has orone in under a conveyance reciting a previous mortgage toother persons, and has received credit on his purchase for the amount of such mortgage ; in which case it has been held in a foreclosure suit, brought by the mortgagor, that the purchaser will not be allowed to question the validity of the mortgage, even though it be absolutely void.* 1 Priugle V. Dunn, 37 Wis. 450; Brush v. Ware, 15 Pet. 93; Reeder v. Barr, 4 Ohio, 44G; Jackson v. Neely, 10 Johns. 373; Gibert v. Peteler, 3S Barb. 488; Jacques v. Short, 20 Barb. 2G9; Sigourney v. Munn, 7 Conn. 324; Anderson v. Layton, 3 Bush (Ky), 87. - Rankin v. Warner, 2 Lea (Tenu.) 302 ; Robertson v. McAfee, 50 Tex. 317; Lamar v. Turner, 48 Ga. 329. Recitals bind both parties and those claiming under them. Fisk v. Flores, 43 Tex. 340. 3 Greenl. Cruise Dig. 452, n; Acerv. Westcott, 46 N. Y. 384; Cam- bridge Valley Bank v. Delano, 48 N. Y. 326; Hamilton v.Nutt, 34 Conn. 501; Baker v. Matcher, 25 Mich. 53; Ware v. Egmont, 31 Eug. L. & Eq. 89; Mosle v. Kuhlman, 40 Iowa, 108. See, as to limitations of this rule, Acer V. Westcott, 46 N. Y. 384; Jones v. Smith, 1 Hare, 43; Iliern v. Mill, 13 Ves. 120; West v. Reed, 2 Hare, 200; Ware v. Egmont, svpra; Bower v. McCorniick, 23 Gratt. 310; infra, Chapter IV, Art. II. * Sands v. Church, 6 N. Y. 347; Murray v. Judson, 9 X. Y. 73; Hart- ley v. Harrison, 24 N. Y. 270; Lee V. Newman, 55 Miss. 365. And see Crofut V. Wood, 6 N. Y. (Sup. Ct.) 314. 78 CONVEYANCING. CH. II. ARTK^LE V. THE CONSIDER ATIOX. SECTION. 7G. Cousiderations are of two kinds — good and valuable. 77. Consideration not essential at common law. 78. Necessaiy to a bargain and sale or covenant to stand seized. 79. Amount actually paid may be proved, when. § 7G. Considerations are of two Kinds, namely. Good and Valuable. — Good considemtions are such as arise from an implied obligation. The love and affection subsist- ing between near relations, and the desire to provide for one's own family are frequently held to be good considerations.^ Valuable considerations are either money or of money value. ^ ' As to what constitutes a good consideration, see Stovall v. Barnett, 4 Litt. 207; Hansen v. Buckner, 4 Dana (Ky.),251; Wallis v. Wallis, 4 Mass. 135; Blackerby v. Holton, 5 Dana (Ky.), 520; Blount v. Blount, 2 L.R. (N. C.) 389; Bell v. Scammons, 15 N. H. 381: Stafford v. Stafford, 41 Tex. 111. As to whether support is a good consideration, see Jack- son V. Florence, 16 Johns. 47, which holds that it is not. But contra, McGill V. Woodward, 1 Const. Rep. (S. C.) 4G8; Exum v. Canty, 34 Miss. 533; Spalding v. Hallenbeck, 30 Barb. 292; Hutchinson v. Hutchinson, 46 Me. 154; Shoots V. Brown, 27 Pa. St. 123. But such consideration avoids a deed at the instance of creditors. Henderson v. Ilunton, 26 Gratt. 926. 2 Marriage is a valuable consideration. But not if the deed be made to the wife after marriage, and not in pursuance of the marriage contract. Whelun v. Whelan, 3 Cow. 537; Verplank v. Sterry, 12 Johns. 536; Smith V. Allen, 5 Allen, 454. See also Thompson v. Thompson, 17 Ohio St. 649 : Ellinger v. Crowl. 17 Md. 361. As to what has been held to constitute a valuable consideration under the particular facts in each case, see Mc- Whorter v. Wright, 5 Ga. 555 ; Clark v. Troy, 20 Cal. 219 ; Borum v. King, 37 i\Ja. 606. As to land, Cheney v. Watkins, 1 Harr, & J. 527; Saunders v. Wagonseller, 19 Pa. St. 248; Gale v. Cobern, 18 Pick. 397. Precedent debt, McMahan v. Morrison, 16 Ind. 172; Swift v. Tyson, 16 Pet. 1 ; Busey v. Reese, 38 Md. 266; Young v. Ring, 1 T. B, Mon. 30; Wilson v.Russeli, 13 Md. 494; Doe v. Horn, 1 Ind. 363; Peek v. Peek (Cal.), 19 Pac. Rep. 227. Agreement to pay indebtedness of grantees father, Tunison v. Chamblin, 88 111. 378. An agreement to do a thing is a sufficient consid- eration to support a deed, even though as a matter of fact the agreement ART. V. THE COKSIDEUATIO.N. 7y § 77. Not Essential at Coiiimoii Law — In reference to the legal effects of a deed in passinji; title, it was not deemed essential at common law that there should be any consider- ation.' In the absence of fraud upon the grantor or his creditor, a feoffment, or any properly common-law convey- ance, is as effectual to pass the title, if a voluntary gift, as if made for a valuable consideration.- A man in unembar- rassed circumstances may, if he pleases, give his property to a friend or stranger; and in the absence of fraud or imposition, the courts will not interfere with it. Thus it has been repeatedly held that a voluntary conveyance of laud, without any consideration either good or valuable, is valid and binding between the parties and their privies,=^ in the absence of circumstances tending to show mental inca- pacity, mistake, fraud or undue influence.* In the case cited below, the court said: *'As between the jrrantee and those who claim by inheritance from the grantor, in a deed when no creditor's rights are involved, it is unimportant whether a deed is given as a strictly business transaction to remunerate for or satisfv a distinct and settled obligration or partly from a desire to reward for long and meritorious service, and parti v from a desire to testifv regard and friendship."-^ § 78. Necessary to a Deed of Bargain and Sale or Cov- enant to Stand Seized. — In order that a deed may operate under the Statute of Uses, as a bargain and sale or covenant to stand seized, there must be either a valuable or a sfood consideration, or something equivalent thereto." To sus- is uever performed. Gray v. Lake, 48 Iowa, .")(),■); Winans v. Peebles. 31 Barb. 371 ; Lake v. Gray, 35 Iowa, 459. 1 Cunningham v. Freeborn, 11 Wend. 248; Roa:ers v. Hillliouse, 3 Conn. 39S. - Perry v. Price, 1 Mo. 553; Den v. Hanks, 5Ired. ;!(i; Ante, ^ 5G. " Labaree V. Carlton, 53 Me. 211 ; Walker v. Walker, 13 Ired. 335; Fonty V. Fonty, 34 Ind. 435. n^iney v. Abbott. 109 Mass. 301. •'> Wallace v. Harris, 22 Mich. 380. « Den V. Hanks, 5 Ired. 30; Lambert v. Smith, 9 Greg. 186. See Min- turn V. Seymour, 4 Johns. Ch. 497; Acker v. Phanix. 4 Paiije, 305. My 80 CONVEYANCING. CH. II. tain a deed of bargain and sale there must be a valuable consideration, expressed or proved;^ while to give effect to a covenant to stand seized, requires a good consideration."^ But it is not necessary that the consideration of blood or marriage should be expressed in the deed. It is sufficient that the consideration exists, and when it exists it may be averred in pleading and given in evidence.'^ So, a bargain and sale may be good although no pecuniary consideration be expressed in the deed.^ In that case the consideration may be proved aliunde.^ Any consideration, however slight, provided it be valuable and free from fraud, will support such a deed."^ And so far as the legal effect of the deed is concerned, when a pecuniary consideration is expressed, (except as against creditors and others impeaching it for fraud), the language of the deed is conclusive.^ And it is statute in Georgia must be a good or valuable consideration, and the con- sideration may always be inquired into. Ga. Code 1882, § 2690. ^ Jackson v. Florence, IG Johns. 46; White v. Weeks, 1 P. & W. 486; Boardman v. Dean, 34 Pa. St. 252; Gault v. Hall, 26 Me. 561; Jackson v. Delancy, 4 Cow. 427; Johnson v. Siebring, 16 Johns. 515. A merito- rious consideration not sufficient. Wilber v. Est. Warren, (N. Y.) 10 N. E. Rep. 263. 2 Rollins V. Riley, 44 N. H. 11 ; Green v. Thomas, 11 Me. 321 ; Wallis v. Wallis, 4 Mass. 135. But, as we have seen, in a case in Massachu- setts, the court, after discussing the reason of the rule which existed in England, that a consideration of blood or marriage is absolutely essen- tial to the validity of a covenant to stand seized, held that "it was arti- ficial and constructive, depending entirely upon the English Statute of Enrollments and having no pretext for continued existence where the provisions of that statute do not apply," and that the deed in that case might be maintained as a covenant to stand seized, notwithstanding the absence of the relation of blood or marriage between the grantor and grantee. Trafton v. Hawes, 102 Mass. .533. And see Jackson v. Cad- well, 1 Cow. 639; Exum v. Canty, 34 Miss. .569; Ante, § 55. 3 Brewer v. Hardy, 22 Pick. 380; Wallis v. Wallis, 4 Mass. 135; Gale v. Coburn, lSPick.397. * If in form a conveyance, it imports a consideration. Ruth v. Ford, 9 Kan. 17; Jackson v. Dillon, 2 Overt. 261. See Jackson v. Alexander, 3 Johns. 484. fi White V. Weeks, 1 P. & W. 486; Jackson v. Dillon, 2 Overt. 271; Den v. Hanks, 5 Ired. 30; Perry v. Price, 1 Mo. 553. « Ante, § 56. ^ Jones V.Dougherty, 10 Ga. 273; Hartshorn v. Day, 19 How. 2H ART. V. TIIK COXSIDEIIATION. Hi imiiKitcri.'il wliollior :i consideration expressed lias or lias not been paid,^ except so far as they may lie a lien for pnr- chase-inoney, in case it bas not been paid. Hut a covenant to stand seized will not be good from the mere circumstance that it professes to be made in consideration of natural love and affection, if there is no such relation existin*'- between the parties as would constitute a good consideration.- It is to be remembered, however, that, although a deed intended to operate in a particular mode may be defective as a con- veyance of that descri})tion, it may yet operate, by con- struction of law, in some other mode.^ Thus, a deed in- tended as a l)argain and sale may operate as a feoffment.* So, also, a deed of gift may be good as a feoffment with- out consideration.'' § 79. The Question as to how far the Consideration Expressed in a Deed is Open to Explanation or Contra- diction, and the various questions which usually arise under it, have been, both in England and this country, in a state of great confusion and much conflict,''' the tendency of courts being to enlarge the power of explaining or varying a consideration expressed." It may be stated as a deduction from the current of leadino; authorities that, alt^houirh the acknowledgment of a consideration cannot be contradicted Hatch V. l'.:ites, .54 Me. 140; Rockwell v. Brown, .54 N. Y. 210; Traftou V. Hawes, 102 Mass. .541. See Kerr v. Birnie, 25 Ark. 225; Thompson v. Thompson. !) hid. 323: Randall v. Ghent, 19 lud. 271 ; Hallocher v. Hallocher, 02 Mo. 207. ^ Lake v. Gray, 35 Iowa, 461; Winans v. Peebles. 31 Barb. 371. But see Boardman v. Dean, 34 Pa. St. 252. - 3 Prest. Abst. Tit. 14. A conveyance from a mother to an illoo^itlmate child for '• natural love and affection'' sustained. Ivey v. (Jranherry, 06 X. C. 223. From the husl)and to the wife Stafford, v. Stafford, 41 Tex. 111. To a daughter-in-law. held not good. .Tackson v. Caldwell, 1 Cow. 622. ^ Ante, § 60, note 2. ■• Cheney v. Watkins, 1 Harr. & J. .527. 5 Den v. Hanks, 5 Ired. 30; Fouty v. Fouty, 34 Ind. -133. •i See the ()i)ini()n of Cowen, -T., in McCrea v. Punnort, 16 Wend. 473. ^Fontaine v. Uoatman's Bank. 57 Mo. .5.53; Altringer v. Capchart, 68 Mo. 441; Kicklaiid v. Menasha, etc. Co., (Wis.) 31 \. W. Rep. 471. 82 CONVEYANCING. CH. 11. for the purpose of defeatino; or affecting the title conveyed,^ it is always competent to prove by parol what the real con- sideration agreed upon was, in an action for the recovery of (he piirchase-nione}' or iii)on the covenants.- The con- sideration stated and acknowledged in the deed, however, is presumed to be the true value agreed to be paid, until the contrary is proved,^ though the amount named by the deed is onl>' ])rimo facAe evidence of what was paid.^ 1 McCrea v. i'uniiort, IG Wend. 4G0; Grout v. Townseiicl. 2 Hill, 554; Kiniicbnnv v. Kiune))re\v. :>5 Ala. Gl?(J; Irvine v. McKeon, 23 Cal. 475; Hnllard V. Briggs, 7 Pick. 5:57: Coles v. Soulsby, 21 Cal. 47; Rocliwell V. Brown, 54 X. Y. 213; Miller v. Edgertou (Kan.), 15 Pac. Rep. 8!)4; Wilkinson v. Scott, 17 Mass. 257; Peck v. Vandcnburg, 30 Cal. 23; Stack- pole V. Robbing, 47 Barb. 212; Goodspeed v. Fuller, 4G Me. 141, and cases cited, .sM7)r«, § 7S. But a creditor or subsequent purchaser of the grantor may show that it was a mere gift. Peck v. Vandcnburg. 30 Cal. 11; Johnson v. Taylor, 4 Dev. 355. A voluntary conveyance from hus- band to wife, without valuable consideration, is void as against creditors, even without ])roof of a fraudulent design. Fellows v. Smith, 40 Mich. fiSO. Conveyances of property, whether the consideration is adequate or inadequate, good or valuable, if made in good faith, are valid and operative as between the parties. But, a.< against the existing creditors of the grantor, they cannot be suppoited unless shown to have been founded on an adequate and valuable consideration. Hubbard v. Allen, 59 Ala. 296. See also Hamilton v. Blackwell, GO Ala. 545. ■^ Rhine v. Ellen, 3G Cal. 3G2; Hannan v. Oxley, 23 Wis. .519; Rabsuhl v. Lack, 35 Mo. 316; I.awton v. Buckingham, 15 Iowa, 22; Drury v. 'I'rcmont, etc. Co., 13 Allen, 171 ; Morris Canal v. Ryerson, 3 Dutch. 467; Paige V. Sherman, 6 Gray, 511 ; Harper v. Perry, 28 Iowa, 63; Pierce v. Brew, 43 Vt. 295; Miller v. Goodwin, 8 Gray, 542; Penn. Manf. Co. v. Necl, .54 Pa. St. 9; Hubbard v. Allen, .59 Ala. 283; Huebsch v. Scheel, 81 111. 281; Wood v. Moriarty (R. L),9 Atl.Rep.427; Hays v. Peck,107 Ind. 389. But contra, in North Carolina. Brocket v. Foscue, 1 Hawk. 64; Mendenhail v. Parish, 8 .Jones L. 106; Lowe v. Weatherley, 4 Dev. & B. 212. ^ Belden v. Seymour, 8 Conn. 310; Clements v. Landrum, 2G Ga. 401 ; Bayliss v. Williams, G Coldvv. (Tenn.) 440; Barter v. Greenleaf, 65 Me. 405. * Meeker v. Meeker, IG Conn. 383; Pierce v. Brew, 43 Vt. 295; Rab- suhl V. Lack, 35 Mo. 316; Dooper v. Noelke, 5 Daly, 413; Reynolds v. Vilas, 8 AVis. 171 : Bonner v. IMetcalf, 5S Ga. ■23(): Beacli v. Packard, 10 Vt. 96. AIM'. VI, Tin: (ii;ANTi\(; clausi:. 83 AETICLK \1. 'II IK (ilJAN TING CLAUSE. SECTION. 82. There must ))e words showing an intention to convey. S3. No particular form of words necessary. 84. Covenants implied by words of grant. S5. As to words of limitation or inheritance. § 82. Ill Order that a I>eed may be Effective, it must contain suflicient words showing an intention to convey an estate. For example, where the only words indicating such intent were "sign over," it was held not operative as a grant. 1 § 83. It was once Considered Important for the Words of Grant to Correspond witli the Nature of the Deed. — Thus, the proper words for a feoffment are said to be, "give," "grant," "enfeoff," etc.; and for a bargain and sale, " grant," "bargain" and "sell."- But such words are not now essential to the operation of a deed, either as a feoffment or bargain and sale, if there be other words of e([uivalent significance which show the intention of the par- ties. The words "I have given and granted" may, by construction, amount to a grant, a feoffment, a gift, a lease or release, a contirmation or surrender; and it is in the elec- tion of the party to whom the deed is made, to use it to which of these purposes he will."' Any words which show ' McKinney v. Settles, 31 Mo. 541. And see Ilummelman v. Mounts, S7 Ind. 178. Notwithstanding Ala. Code, sj •2U4S. an instrument in form of a deed, signed, sealed, acknowledged and having habcndiun clause, but containing no words of grant or transfer, cannot operate as a conveyance. Webb V. Mullins, 78 Ala. 111. Where the granting clause conveys a fee- sim])le, with nothing to indicate tliat the grantor intended sucli clause to be liiiiitcd by the huhendain, wliicli conveys only a life estate, the grantee will take an absolute title unrestricted by the halioidnm. Katliffe v. Mars (Ky.), 7 S. W. Rep. 3!).-). - 1 Wood on Conv., 20:?. SRowe V. Beckett, :!(> Iml. Ml. And see Folk v. Yarn, !» Rich. E(i. 303; Patterson v. Carneal, :5 A. K. Marsh. GIO. 84 CONVEYANCING. ClI . 11. an intention to transfer an estate or to exercise a power will be allowed to have the operation which will make them effectual, if the other circumstances concur which are by law required to the operation of the deed in this form.^ The rule propounded by Shepherd in liis Touchstone is, that the construction be such as the wiiole deed, and every part of it, may take effect; and as much effect as may be for that purpose for which it is made; so as when it cannot take effect according to the letter, it be construed so as it may take some effect or other. ^ § 84. Covenants Iinpli<'(l by Words of Grant. — At common law the words "give" and "grant" were, in some cases, construed into covenants of warranty;^ and in several of tiie States, the words "grant, bargain and sell" are, by statute, made to imply certain ex})ress covenants.'^ On the creation of an estate less than a freehold, a covenant for title was, from an early period, im})lied from the words of leasing, as "grant," "demise," etc.'' It has been held in some cases,''and denied in others,^ that the word " lease" 1 3 Prest. Abst. Tit. 21 ; Piersoa v, Anustioug. 1 Iowa, 282 ; Jackson v. Alexander, H Johns. 484. Under Ala. Code 1870, § 2948, any instrument in writing, signed bj' tlie grantor or his agent, having a written authority Avith or without a seal, is effectual to transfer tlic legal title to the grantee if sucli was the intention of the grantor to be collected from the entire instrument. Tatuin v. Tatum, 1 South. Ilep. 19"). 2 Shep. Touch. 82, 222; Jennings v. Brizeadine, 44 Mo. 332; Lynch v. Livingston, S Barb. 483, 485; Marden v. Chase, 32 Me. 320; Collins v. Lavelle, 44 Vt. 23U; ^Vilcoxen v. Clark, 51 Cal. U40. In California and Dakota by statute, if the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction. Cal. Code 187(!, § 60G8; Dak. Civ. Code, § GM. And in many of the States the term " heirs " or otlier words of inheritance is not necessary to create an es- tate in fee, unless the intent to convey less appears in express tern)s. Stimson's Amer. Stat., § 1474. In Maryland words " grant, bargain and sell " are sutticieut to convey whole estate. Kev. Code 1878, Art. 44, § 5. ■^ Kawle on Cov., 4th ed., 457; Dow v. Lewis, 4 Gray, 473. But see Webster v. Conley, 4G 111. 14. * Blossom V. Van Court, 34 Mo. 31!); Hawk v. McCullough. 21 111. 220; infra, Art. XII. But see Frost v. Raymond, 2 ( 'aines, 188. '^ Kawle on Cov., 1th ed., 4G1. e Maule V. Ashmead, 20 Pa. St. 482; Koss v. Dysart, 33 Pa. St. 4.52; Hamilton v. Wright, 28 Mo. 190, Scott, J., dissenting. ^ Lovering v. Lovering, 13 N. H. 513. See Hart v. Winilsor, 12 Mees. AKT. MI. DESCini-llo.N UF Tin; I'lJEMISES. 85 is oquivjileiit to "doniiso" in orcating an implied covenant. This su})jeet, so far as respects the covenants implied, will more properly be treated of under the head of covenants. § 85. AVords of Tiiinitation or Inheritance. — At com- mon law words of grant to a man, without words of limita- tion or inheritance, were understood to create in hiip only a life estate; and the word "heirs" was indispensable to create an estate of inheritance.^ But this rule has been abrogated by statute in most of the States.'-^ ARTICLE VIL THE DESCKIPTIOX OF THE PEEMISES. SECTION. 87. Description must afford sufficient means of identifying the land. 88. P^rol evidence admissible, when. 89. Deed may be reformed, when. 90. When resort is to be had to rules of construction. 91. Reference to condition of property at time of the conveyance. 92. Contemporaneous writings. 93. A grant of the principal passes the incident. 94. A grant in general terms passes all of the constituent parts of the thiug granted. 95. All parts of a deed to be construed together. & W. 85; Sheets v. Selden, 7 Wall. 423; Kinney v. Watts, 14 Wend. 38; Tone V. Brace, 8 Paige Ch. .597; Williams v. Burrell, 1 C. B. 429; Piatt on Conv. 47: Mayor v. Mabie, 13 N. Y. IGO. > Xicholson v. Caress. 59 Ind. 39; Young v. Marshall, Hill & D. (N. Y. Sup. Ct.) 93: Jordan v. McClure. 85 Pa. St. 495; Roberts v. Forsythe, 3 Dev. 26; Leitensdorfer v. Delphy, 16 Mo. 161; Buffum v. Hutchinson, 1 Allen. 58. But see Calmes v. Bucl<, 4 Bibb, 453. - Hawkins v. Chapman, 36 Md. 83; Cromwell v. Wincliester, 2 Head. 389: Jordan v. McClure, 85 Pa. St. 496; Mackall v. Richards, 1 Mackay (1). C), 444. But contra, Batcheler v. Whitaker, 88 N. C 350. Where ill ;i deed the wor(l>; '• children " and " heirs'' are used indiscriminately \n tinier to harmonize the two parts of the deed, the word '• children " will be substituted for the word ''heirs" in the habendum. Warn v. Brown, 102 Pa. St. 347. And see See v. Derr, 57 Mich. 369. 86 CONVEYANCING. CH. II. i)(). False surplusage of desciiption. 1)7. Where there are two descriptions tlio one most definite \vill control. !»S, The grammatical sense not always adhered to. !)!». All instrujnents construed contra proferentem. 100. Construction always favorable to the purpose of the deed. Kil. .Monuments control courses and distances. 102. Establishment of boundary line by adjoining proprietors. ](>:{. Reputation adniissit)le, when. 104. A grant hounded on a stream or highway goes to the center. 10.5. As to lands l)oun(led by large bodies of water. 10(5. The quantity of land mentioned, 107. The words " more or less." 108. Reference to a map, survey or another deserii)tioii has tlie effect to incorporate in the deed, loii. Exceptions. § S7. The I>es<'riptioii Must Afford Sufficient Means of Identifying- the Land. — The general rule is that if the desci-iption of the premises given in a deed affords sufficient means of ascertaining and identifying the land intended to be conveyed, this is sufficient to sustain the conveyance, notwitiistanding there may be errors or inconsistency in some of the particulars.^ But if, taking the instrument as a whole, the sul)ject of the grant cannot be ascertained, the deed will be void.'- And here the rule id certum est quod cerium reddl potent is again applicable.-^ If the description is ambiguous, the true location of the premises described ^ Vose V. Bradstreet, 27 Me. 15G; Bosworth v. Sturtevant, 2 Cush. 392: Lyman v. Loomis, .5 N. II. 408; Mason v. White. 11 Barb. 173; Eggleston v. Bradford, 10 Ohio, 312; Andrews v. Murphy, 12 Ga. 431; Berry v. Wright, 14 Tex. 270; Andrews v. Pearson, 08 Me. 19; Farris v. Gilbert, .50 Tex. 3.50. - Campltell v. .Johnson, 44 Mo. 247; 1 Wood on Conv. -200; AVofford v. McKinna, 2:5 Tex. 44; Boardman v. Read, (J Pet. 328. in order that the record of a deed may impart notice to subsequent purchasers, the de- scription of the land conveyed should l)e such that it can be identified by name, location, monuments, courses and distances or nund)ers, or the deed should refer to some other instrument lawfully on record which does contain such means of identification. Gatewood v. House, 65 310. 663. 3 "That is certain which may be made certain."' 2 Bl. ( 'om. 143; 4 Kent's Com. 462; Miller v. Mann, .5,5 Vt. 47.5; Travellers' ins. Co. T. Yount, 98 Ind. 4.54. ART. VII. DESCUII'TION OF TIIK PREMISES. 87 in the deed may be ascertained from its references, njonu- ments, and the whole description; and circumstances ex- trinsic from the deed are admissible.^ § 88. Parol Evuleiice maybe Resorted to in Explana- tion of a Description to show the circumstances under which the deed was made,- to show the meaning of technical terms of art, ''or to show and explain latent ambiguities,* but will not be admitted to contradict or control the lano;ua<>;e of the deed.'' Thus, for instance, where the location of the land is clearly ascertained by a sufficient description admitting of but one construction, it cannot be controlled by evidence of intent or acts and declarations of the parties tending to establish a different location or another designation.*^ Or if the land is so inaccurately described as to render its identity wholly uncertain, the grant is void and cannot be explained by parol evidence so as to render the instrument effective." But to have this effect the ambiguity must be patent upon the face of the instrument: in which case the 1 Fuller V. Carr. 33 IST. J. L. 157; Putzel v. Van Brunt, 40 N. Y. Sup. Ct. TiOl; See 1 Greenl. on Ev., §§ 295, 298. -' 1 Greenl. on Ev., §§ 295, 298; Hutchins v. Dixou, 11 Md. 29; Stanley V. Greene, 12 Cal. 148; Abbott v. Abbott, 53 Me. 356. 3 Eaton V. Smith, 20 Pick. 150; X. J. Zinc Co. v. Boston Frankliuite Co., 15^'. J. Eq. 418. •» Hall V. Davis, 36 X. H. .569; Clark v. PoAvers, 45 El. 283; Wofford v. McKiuna, 23 Tex. 44; Bybee v. Ilageman, 66 111. 519. The omission from the description of the name of the town, county or State, is a la- tent ambiguity, explainable by extrinsic evidence. Bj'bee v. Ilageman, 66 111. 519; Beal v. Blair, 33 Iowa, 318; Austrian v. Davidson, 21 Minn. 117; Lloyd V. Bunce. 41 Inwa, - a Deed. — In general, a deed may be reformed and made to conform to the orifjinal intention of the parties when, by mistake, it has been so worded as to convey a different estate from that which the parties in- tended.'^ In all such cases the error complained of must have been the result of accident, mistake or fraud, and not the agreement of the ))arties to omit a part of the stipuhi- tion of contract.'^ If any intermediate owner has taken the estate without notice, he, and those claiming under him, would have a right to stand upon the title as it appears upon the deed.* § 1)0. Wlieu Resort is to be had to Rules of Construc- tion. — In construing a deed the court places itself as nearly as possible in the situation of the parties; and their inten- tion is to be deduced from the instrument of conveyance, as in the case of any other contract.^ If the intent is not then apparent, resort is to be had to the rules of construction, which give greater effect to those things about which the law presumes the parties are the least liable to make a mis- take. But arbitrary rules are not to be invoked if the in- tention of the parties can be plainly discovered without their aid." No rules for the location of land described in a 1 Jeiininj^s v. Bri/eadine, 44 Mo. 332; Fenwick v. Floyd, 1 liar. & G. 172; Deery v. Gray, 10 Wall. 27U; Thomas v. Turvcy, 1 liar. & ii. 437; Peck V. Mallams, 10 N. Y. 532; Boardiiiaa v. Read, Pet. 345; Hill v. Mowry, (j Gray, 551 ; Andrews V. Todd, 50 X. H. 5(15. But see Cramer V. Rciitoii. (;0 Harb. 225. - llu.ss V. Morrl.s, G3 Pa. St. 372; ( 'aiiedy v. .Marcy, 13 (iray, 373; Wyche v. Greene, 16 Ga. 49; Adams v. Stevens, 4!) Me. 3U2. •■^ Story on Eq., § 154. ••Prescott V. Hawkins. 1(1 X. II. 122; Varick v. Brij^.-^s. I*aigf, 323. * Long V. Wagoner, 47 ."Mo. J7.S; Stanley v. Greene, 12 Cal. 148. Pro- vided by statute in some States that every conveyance is to be construed so as to carry into effect the intent of the parties. Stiinsou"s Amer. Stat., § 1475. In others it is laid down what every deed conveying land is construed to include. I/nd. ^ 1475 D. 6 Indeed, the very idea and purpose of construction implies a previous uncertainty as to the meaning of tlie contrart : for, wliere this is clear ART. VII. DESCRIPTION OF THE PREMISES. 89 deed can be laid down, which are not subject to an infinite va- riety of exceptions arising out of matters of evidence.^ Con- sequently only a few of the leading ones will ho mentioned. § 91. A Deed is to be Construed, in all its Parts, with Reference to the Actual Rightful State of the Property at the Time of the Co;>veyance, unless some other time is expressly referred to.- The parties are supposed to con- tract with reference to the property in the condition it was at the time ; and, therefore, resort is to be had to these cir- cumstances iu explanation of their meaning. § 92. Contemporaneous Writings. — The intention of the parties is to be ascertainec], not only by the language of the description in the deed itself, but by reference to ex- trinsic facts, which may consist of contemporaneous writ- ings relating to the same subject, or prior deeds through which the title has come down and writings contempora- neous therewith, and circumstances relating to the premises described in them.^ The maxim is contemporanea expo.sitio est optima et fortissima in lege^{a contemporaneous expo- sition is the best and most powerful in law). § 93. A Grant of the Principal Passes the Incident. — Another maxim resorted to in the construction of deeds is, cuicunque aliquis quid concedit, concedere videtur, et id sine quo res up<^o esse 7ion potuit (whoever grants a thing, i.s supposed also to grant that without which the grant itself would be of no effect);^ the application of which is, that property conveyed passes with it all incidents rightfully be- longing to it at the time of the convcN'ance, so far as they and unambiguous, there is no room for construction, and notliiug for construction to do. Kimball v. Semple. 25 Cal. 449. 1 Bradford v. Pitts, 2 Const. (S. C.) 115. 2 Dunklee v. Wilton R. R. Co., 24 N. IT. 489; Commonwealth v. Rox- bury, 9 Gray, 493; Abbott v. Abbott, .jl Me. 581; Richardson v. Palmer, 38 N. H. 218; Karmuller v. Krotz, 18 Iowa, 356; Lane v. Thompson, 43 N. H. 324; Moore v. Griffin, 22 Me. 350. ■^ Putzel V. Van Brunt, 40 N. Y. Sup. Cl. 501 ; Winnipisseogee v. Per- ley, 44 N. H. 83. * Coke (2d Inst.), 11 ; Connery v. Brooke, 73 Pa. St. 84. 5 Co. Litt. ma; Shep. Touch. 89. 90 CONVEYANCING. CH. II. are necessary to the full hcuctit and perfect enjoyment of the ])roperty, witliout an}' speeitieiition of them.' 'I'htis, it" land he granted, surrounded by other lands of the grantor, a ri>'ht of way to the granted premises will iro with the grant.- It must, however, be strictly a way of necessit}^ and not a mere convenience,'^ unless it is an existing way, in which ease it ma}' pass as an api)urtenant easement.'* § 94. AVhere tbe Grant is in General Terms, Whatever Belongs to the Thing Granted, as a Constituent Part or Element, Passes with It. — Upon this principle, the grant of a house passes its doors, windows, locks, keys, window- blinds and the like, although at the time of the conveyance they may have been severed from the building for a tem- porary purpose.'^ § 95. All the Parts of a Deed are to be Considered and Construed Together, and every part should, if possi- ble, be made to take effect and every word to operate, if by law it may, according to the intention of the parties, so that no part shall be rejected." Yet, if inconsistent or re})ug- nant to the remainder of the description and enough still remains to ascertain the land with certainty, a call may be rejected." § 96. False Surplusage of Description. — If there are certain particulars once sufficiently ascertained which desig- nate the thing intended to be granted, the addition of a cir- cumstance, false or mistaken, will not vitiate the grant. But when the description of the estate intended to be con- 1 Dunklee v. Wilton R. R. Co., 24 X. IT. 4S9; Murphy v. C:uni)lH'll, 4 Pa. St. 480; Eliott v. Ciuter, 12 Pick. 4:5G; Poldon v. lias^tard, 4 B. & S. 258; Wilsou v. Huuter, 14 Wis. 084. 2 Collins V. Prentice, I'y Conn. W.). 3 Xichol.'; V. I.ut-e. 24 Pick. 102. * Kent V. Waite, 10 Pick. i:}8; Murpliy v. Campbell, 4 Pa. 81. 484; Har- ris V. Elliott, 10 Pet. 2.5, 54; Pope v. O'Hara, 48 N. Y. 455. 5 Shep. Touch. 90; Farrer v. Stackpole, (5 Me. 154. « Waiters v. Bredin, 70 Pa. St. 238; Ilerrick v. Hopkins, 23 Mo. 217; Richardson v. Palmer, 38 N. 11. 212; Thrall v. Newell. 19 Vt. 202; Byrd V. Ludlow, 77 Va. 483; Wharton v. Brick (N. J.), 8 Atl. Rep. 529. ^ Coolev v. Warren, 53 Mo. IGG; Shewalter v. Pirner, 55 Mo. 218. AIIT, VII. DESCRIPTION OF THE PREMISES. 91 vej^ed includes several particulars, all of which arc neces- sary to ascertain the estate to be conveyed, no estate will pass, except such as will agree to every part of the descrip- tion.^ § 97. Where in a Deed there are Two Descriptions of the Premises Conveyed, and there is a clear repugnance between them, the court will look into the surrounding facts and give effect to the description which is the most definite and certain, and which will carry out the evident intention of the j)arties.'- § 98. The Grammatical Sense is not adhered to in con- struing a deed where a contrary intent is apparent.^ Gen- erally, all relative words are read as referring to the nearest antecedent. But this rule of grammar is not a rule of law, where the whole instrument shows plainly that a reference to an earlier antecedent was intended.* In general, no re- gard is had to punctuation ;^ but it w-ill be resorted to to settle the meaning of an instrument after all other means have failed.^ § 99. All Instruments are to be Construed "Contra Proferentem." — That is, against him who gives or under- takes, or enters into an obligation." Accordingly, it is said that the construction of a deed is to be favorable to the ' Ibid; Jackson v. Clark, 7 .Tohui?. 223; Peck v. Mallows, 10 N. Y.533; Kruse V. Wilson. 79 111. 235. - Wade V. Deray, 50 Cal. 370: Kaymond v. Coft'ey, 5 Oreg. 132; Dris- call V. Green, 59 N. H. 101. A particular description will control a gen- eral one where they are repugnant. H. & St. Jo. R. R. Co. v. Green, 6S Mo. 169. And see Brunswick Sav. Inst. v. Grossman. 70 Me. 577. ••' Jackson v. Topping, 1 Wend. 388; Hancock v. Watson, 18 Cal. 137. < Staniland v. Hopkins, 9 Mees. & W. 178, 192; Gray v. Clark, 11 Vt. 583. ■'* Williams on Real Prop. 101. •^ Ewing V. Burnett, 11 Pet. 41. \V'herethe closing clause in a descrip- tion sums up the intention as to the particular premises conveyed, it has a controlling effect upon all the prior phrases used in the description. Ousby V. Jones, 73 X. Y. 021. ' Barrett v. Duke of Bedford. 8 T. R. 005. And see Johnson County V. Wood, 84 Mo. 489. 92 CONVEVANCINli. Cll. II. jrrantec.^ ]5ut this rule is of little value, and the last to be resorted to.- It is not properly applicable to any case ex- cept one of strict equivocation, where the words us(m1 will bear two or more interpretations equally well.'' § lOO. Construction Always Favorable to the l*uri)<»se of the Deed. — It is a general and well established rule, that a construction which renders an instrument operative and valid is to be adoi)ted in preference to one which makes it void;* and that construction which will give the instrument the greatest effect toward the accomplisliment of the pur- pose for which it was made, is to be preferred to one which would tend to frustrate that pur):)ose."'' § 101. Moniiineiits Control Courses and I>istances. — In identifying a boundary line it is a general rule, that fixed and known monuments called for in a description must pre- vail over courses and distances." But if there is no descrip- tion less liable to mistake, courses and distances will control.^ ' Charles River Bridge v. Warren Bridge, 11 Pet. 589 ; Cocheco Mauuf . Co. V. Wliitticr, 10 X. 11. 305: Wiuslou' v. Patten, U Me. 2.5; Mills v. Catliu, -l-l Vt. Ui). 2 Boc. Max. Rop. ;5. 3 Adams v. Warner, 23 Vt. 411, 412. '' Anderson v. Bauiibnian. 7 ^Nfich. 6!); Hoffman v. Mackall. 5 Oliio St. 123; Cans v. Aldridge, 27 Ind. 294. ^ A construction which requires that an entire clause of a deed should be rejected, will be adopted only from unavoidable necessity. City of Alton V. Illinois Transportation Co., 12 111. 3S. 8 Daggett V. Willey. Florida, 482; Brown v. Huger, 21 How. :505; Haynes v. Young, 3(J Maine, 557; Coles v. Wooding, 2 P. 6c H. (Va.) 189; Kronenbergcr v. Iloffiier, 44 ^lo. 185; Kellogg v. Mullen, 45 Mo. 571 ; Walsh v. Hill. :5S Cal.4Sl ; Keenan v. Cavanaugh. 44 Vt. 208: West v. Shaw, 07 N. C. 4iM ; Welder v. Hunt. 31 Tex. 14; Thompson v. Wil- cox, 7 Lans. (N. Y.) 370: Lewis v. Lewis, 4 Oreg. 177; Morse v. Rogers, 118 Mass. 572; Cunningham v. Curtis, 57 X. H. 157; Simontou v. Thomp- son, 55 Ind. 87: Harris v. Hull, 70 Ga. 831 ; Adams v. Alkire, 20 W. Va. 480. The marks on the ground constitute tlie actual survey of a tract of land: the draft of it is but evidence of the suivcy and will be controlled by them; coursesand distances nuist yield to marks and calls. Hiddles- burg, etc. Coal Co. v. Rogers, 05 Pa. St. 410; .Marsh v. Mitchell, 25 Wis. 706. See Kronenbergcr v. Hoffner, 44 Mo. 185; Putnam v. Bond, 100 Mass. 58; Watson v. .Jones, 85 Pa. St. 117. ' Higinbotham v. Stoddard. 72 X. Y. !t4: Kissam v. Gaylord, Bush. AKT. VII. DKSCIMl'TION OF TIIK PREMISES. 93 And where it appears by a deed tliat the courses and distances from a fixed and determinate line were intended to control instead of monuments referred to, the latter will be disre- garded.^ So, when monuments referred to in a description are not found, and their location cannot be ascertained, the course and distances, when explicit, must govern, and can- not be controlled or affected by parol evidence."^ It has also been held that the rule that monuments, natural or artificial, rather than courses and distances, control in the construction of a conveyance of real estate, will not be enforced when the instrument would be thereby defeated, and when the rejection of a call for a monument would reconcile other parts of the description and leave enough to identify the land."' § 102. Adjoining- Proprietors may establish a division line by parol agreement, and such agreement, when exe- cuted, will generally be held conclusive upon the parties and all claiming under them.* But if mistakenly located and agreed on, such line will not be held binding if no injustice would be done by disregarding it.^ When a boundary is indefinite and uncertain, if run out and marked by the owner, it will be presumed, as against him, that it was cor- rectly done. This presumption, however, may be removed by proof of a mistake, and that the line as marked varies materially from the true line.*^ Though it has been held that, where a deed of land refers to a monument not actu- (N. C. ) L. IIG. Where no monuments are mentioned, or if mentioned their existence and location are not proved, courses and distances will govern. Bagley v. Morrill, 46 Vt. 94. 1 Buffalo- R. R. Co. v. Stigeler, 61 N. Y. 348; Higinbotham v. Stod- dard, 72 N. Y. 94; Hall v. Eaton, 139 Mass. 217; Danziger v. Boyd, 53 N. Y. Super. Ct. 398. 2 Drew V. Swift, 46 X. Y. 204. And see Wilson v. Hildreth, 118 Mass. 578; Bagley v. Morrill, 46 Vt. 94. 3 White V. Luniug, 93 U. S. 515. ■» Cutler V. Callison, 72 111. 113; Orr v. Hadley, 36 X. H. 575; Houston V. Sneed, 15 Tex. 307; Bolton v. Lann, 16 Tex. 96; Ebert v. Wood, 1 Binn. 216; McNamara v. Seaton, 82 HI. 498. 5 Menkens v. Blumeuthal, 27 Mo. 198. (.'iiuniii^haiii V. Robcrsoii, 1 Swan (Tenn.), 138. 94 CONVEYANCING. CJI. II. ally existing at the time, and the parties afterwards fairly erect such monument, intending to conform to the deed, the monument so phiced will govern the extent of the land, although not entirely coinciding with the line described in the deed.' The acquiescence of proprietors of adjoining lands in a particular line is not unfrequently referred to, and received as evidence to determine their boundaries.'^ And a long acquiescence in an established boundary line was held not only to be evidence of an original ])arol agreement establishino; the line, butiri'ound for a direct legal inference, as to the true boundary line, of so controlling a nature that the party was precluded from offering an}' evidence to the contrary."' But parties are not bound by a consent to bound- aries, which have been fixed under an evident error, unless, perhaps, by the prescription of thirty years;* though the Supreme Court of Missouri has held that in such a case the parties will be bound even though the time of prescription has not lun, when one of them erects improvements and maintains possession for many years.'' § 103. Reputation Admissible, when. — What is called reputation is nev(>r evidence of title, nor is it admissible in support of i^rivate rights;^ yet it is sometimes admitted to establish the boundaries of particular parcels intended to be conveyed b\' deed ; but the monuments which ma}' be thus identified must, u[)on })rinciple, be ancient and of a public or quasi public nature." iLerned v. ^torrill, 2 N. H. 197; Frost>. Spalding, 19 Pick. 445; Bla- ney v. Rice, 20 Pick. 62. - Koulkc V. Stockdale. 40 Towa, 99; Fahey v.Marsh. 40 Midi. 2:5(;: P,oI- ton V. Lauii, l(i Tex. 9G; Jackson v. Freer, 17 Jolins. 29; Edwards v. White County, 85 111. 390; Davis v. Judge, 46 Vt. 655. ■i Baldwin v. Brown, 16 N. Y. 359; McCoy v. Ilauce, 28 Pa. St. 149; Colunihet v. Pacheco, 48Cal. 35!i. But see IIoux v. Batteen, 68 Mo. 84. ■* Gray v. Couvillnn. 12 La. Ann. 780. ^ Majors v. Rice, 57 Mo. 384. « Green v. Clielsea, 24 Pick. 71. 80. 7 Nelson v. State, 1 Tex. App. 41 ; Shook v. Pate, 50 Ala. 91 ; Kellogg v. Smith, 7 Cush. 375; 1 Greenl. (.n Ev., § 145. See Whitney v. Smith, 10 N. IT. 43; Gnitz v. Beates, \:> Pa. St. 505; Xelson v. Ilall.l McLean, 518; ART. VII. DESCRIPTION OF THE PREMISES. 95 § 104. AVhere a Grant of Land is Bounded by a Stream not Navigable, or by a Highway, the boundary line extends to the center of such stream or highway, unless a contrary intention is clearly manifest from the conveyance itself.^ This rule is founded upon the presumed intention of the grantor,'- and apj)lies only when the grantor is owner of the fee to the center,-^ and when the grant is in terms bounded on the stream or highway.* But it seems, where land is sold bordering on a highway, the mere fact that it is not so described in the deed will not vary the general con- struction. The grantee takes the fee to the middle of the highway on the line of which the land is situated.'' And this rule is applicable when the land conveyed is a lot or part of a lot in a town or city and designated on the plat by its num- ber, or ascertained by its appropriate description, and abut- ting on a street, lane or alley.*' Agrantof land on a way was Smith V. Prewitt, 2 A. K. Marsh. 158; Buchanan v. Moore, 10 Serg. & R. 281. 1 Demeyer V. Legg, 18 Barb. (N. Y.) 14; Champlain Railroad v. Val- entine, 19 Barb. (.X. Y.) 488; Xorris V. Hill, 1 3Iaun. (Mich.) 202; Nichols V. Suncook Mfg. Co., 34 X. H. 34:); Pike v. Mimroe, 36 Me. 209 ; Watson V. Peters, 26 Mich. 508; White v. Godfrey, 97 Mass. 472; Banks V. Ogden, 2 Wall. 57; Salter v. Jonas, 39 X. J. L. 469; Cox v. Louisville R. R. Co., 48 Ind. 178; Greer v. X. Y. Cent. R. R. Co., 37 Hun (X. Y.), 346; Pollock v. Morris, 51 X. Y. Super. Ct. 112; Trausuev. Sell, 105 Pa. St. 604; Helnier v. Castle, 109 111. 664. But contra, where lot is bounded by "stones" or a "-line" on the side of the road. Peabody Heights Co. V. Sadtler, 63 Md. 533; Hamlin v. Pairpoiut Mfg. Co., 141 Mass. 51. And see Gould v. Eastern R. R. Co., 142 Mass. 85; Holmes v. Turners Falls Co., /cL 590; Chadwick V.Davis, 143 Mass. 7. A deed conveyed a hotel "and the land adjoining it,"' held that a small island in rear of hotel, but separated therefrom b}' a small stream, did not pass. Miller v. Mann, 55 Vt. 475. 2 Kingsland v. Chittenden, 6 Laiis. (X. Y.) 15; Mott v. Mott, 08 X. Y. 246; Moody v. Palmer, 50 Cal.31. 3 Hoff V. Tobey, 66 Barb. 347. ^ Kingsland v. Chittenden, 6 Laus. (X. Y.) 15; Babcockv. Utter, 1 Abb, Ct. App. (X. Y.) 27. ^ Gear v. Barnaul, 37 Conn. 229; Stark v. Coffin, 105 Mass. 328; Hawes- villev. Lander, 8 Bush (Ky.), 079. 6 Cox V. Louisville, etc. R. R. Co., 48 Ind. 178; Moody v. Palmer, 50 Cal. 31; Kueeland v. Van Valkmburg, 46 Wis. 434. 1)6 CONVEYANCING. CH. II. luld to convey to tiie center of the way, notwithstanding a ohiuse o-ivinji; the use of the way in common with the grantor, his heirs or assigns.' But in anotlicr case a description, l)e<'-inninir Jit a v)oint "on the hank of" a stream, thence by courses and distances back to "said stream," was construed to mean the bank and not the center of the stream.- So a deed was construed to exclude a road on the east, both termini of the boundary being on the westerly side of the road.^ It may be remarked here that where a line is de- scribed as running from one monument to another, a direct line is implied, unless there is something to rebut the impli- cation."^ The circumstance that both points are on the same river has a tendency to destroy the implication.'' § lOfj. In Respect to Lauds Bounded by Large Bodies of Water, the rule seems to be that, where lands are con- veyed bounded upon a natural [)ond or lake of fresh water, the boundary line will be the low-water mark." In naviga- ble streams or tide-waters, the land extends only to high- water mark." In regard to what is a navigable stream, there is much seeming conflict of oi)inion. " By the com- mon law, the title to land under water and the shores below ordiiniry high-water mark, in navigable rivers and arras of 1 Motley V. Sargent, 119 Mas.s. 2:51. Aud see lloff v. Tobey, U(J Barb. 347. 2Babcock v. Utter, 1 Abb. Ct. App. (N. Y.) 27. •■'Cottle V. Young, 50 Me. 105. And see Severy v. C. P. R. R., 51 Cal. 194; Peck v. Deuuiston, 121 Mass. 17; O'Connell v. Bryant, 121 Mass. 557 . 4 Allen V. Kingsbury, IG Pick. 2:55, 2:58; Henshaw v. Mullens, 121 Mass. 143. 5 Slade V. Etheridge, 13 Ired. (X. C.) 353. But see People v. Hender- son, 40 Cal. 32. 6 Wheeler v. Spinola, 54 N. Y. 377. So provided by statute in some States as to navigable streams or lalTcs. Stimson's Am. Stat., § 1177. And see Waterman v. Joimson, 1:5 Pick. 2r;i ; Primia v. Walker, ;5S Mo. 9!». ' Middleton v. Pritchard, 3 Scam. 520; McManus v. Carinichael, 3 Iowa, 1; Ilaight v. The City of Keokuk, 4 Iowa, 199; Tomlin v. Du- buque, etc. R. H. Co., 32 Iowa, 10(5; Canal Commissioners v. The Peo- ple, 5 Wend. 423. 121; Barney v. The City of K(!okuk. Sup. Ct. U. S., 4 Cent. L. .1. I'll : A(lain< v. Pca-c 2 Conn. ISl. By statute in California as to seashore. ( al. ( 'iv. ( 'ode. § 5830. ART. VII. DESCRIPTION OF THE PREMISES. 'J 7 the sea, was vested in the sovereign for the public use and benefit ; the true reason of which was that the passage-ways of commerce and navigation might be subject to public authority and control. But on account of the sinallness of the rivers in England, tide-waters only were regarded as navigable; and hence, the rule as to property was often expressed as applicable to tide-waters only, although the reason of the rule would make it apply to all navigable waters." In this country, in many of the States, the form instead of the substance of the rule has been adopted, and the public title to the bed and shores of navigable streams is, in such States, confined to tide-waters ;i while, in other States rivers, are deemed navigable waters when they are used or are susceptible of being used in their ordinary con- dition as highways for commerce between the States. The test by which, in this country, to determine the navigability of our rivers is found in their navigable capacity. Those rivers are navigable in law which are navigable in fact.^ This question is regarded as settled so far as the general government is concerned. The United States or its grantees, by gift or purchase, cannot claim an interest in the soil below high- water mark. This soil belongs to the States.^ § lOG. The Quantity of Land mentioned in a deed as being the number of acres conveyed must yield to the 1 Barney v. The City of Keokuk, 4 Cent. L. J, 491. - McManus v. Carmichael, 3 Iowa, 1; Haight v. The Oity of Keokuk, 4 Iowa, 199; Tomlin v. Dubuque, etc. R. Co., 32 Iowa, 106. See the Dauiel Ball, 10 Wall. 557; The Monte mo, 11 Wall. 411. 3 Railroad Co. v. Schurmeir, 7 Wall. 272. At the revolution the peo- ple of each State, in their sovereign character, acquired the absolute right to all navigable waters and the soil under them. Martin v. Waddell, 16 Pet. 367; Russell v. Jersey Co., 15 How. 426. And this right was not granted by the Constitution to the United States, but was reserved to the States respectively, and new States have the same rights, sovereignty and jurisdiction over this subject as the original ones. Pollard v. Hagan, 3 How. 212; Pollard v. Kibbe, 9 How. 471; Hallett v. Beebe, 13 How. 25; Withers v. Buckley, 20 How. 84. And see, in this connection. South Carolina v. Georgia, 93 U. S. 4. (7) 98 CONVEYANCING. ClI. 11. boundiiries contained in the doscription : and, if inconsistent with llic actual area of the premises as thus ascertained, it will be rejected.^ It aids in defining the premises intended to be granted, but is regarded as the least reliable and last to be resorted to in determining boundaries. In the absence of any express covenant as to quantity, tiiis is ahva3's re- garded as part of the description merely. § 107. The Words " More or Less," when used in a deed in connection with a description of land, are used to designate; ai)i)roximateIy the quantity of land within the defined boun Uv. 47; FioUl v. Columbet, 4 Sawyer, 523. And see Sanders v. (Joddiug-, 45 Iowa, 403; Ware v. Johnson, 66 Mo. 662; Hunter v. Morse, 49 Tex. 219. 2 Howell V. Merrill, 30 Mich. 2S3; AVilliamson v. Hall, 62 Mo. 405; Clark V. Scamnion, ')2 Me. 47. And see Benton v. Ilorseley, 71 Ga. 619. 3 City of Alton v. 111. Trans. Co., 12 111.38; Vance v. Fore, 24 Cal. 444; Boylston v. Carver, 11 Mass. 515, 517; Lippett v. Kelly, 46 Vt.523; Allen V. Taft, 6 Gray, 552; Foss v. Crisp, 20 Pick. 121 ; Powers v. Jackson, 50 Cal. 429 ; Hudson v. Irwin, .50 Cal. 450. See Baxter v. Arnold, 114 Mass. 577; Walker V. Boynton, 120 Mass. 349; Sanborn v. Mueller (Minn.), 35 X. W. Rep. 666; Clamorgan v. Ilornsby (Mo.), 6 S. W. Rep. 657; Cleveland v. Choate (Cal.), 18 Pac. Rep. 875. * Wuesthoff V. Seymour, 22 N. J. Eq. 66. And stic Auburn ( 'hurcli v. Walker, 124 Mass. 69; Lovejoy v. Lovett, Id. 270. 5 Dolde V. Vodicka, 49 Mo. 100. ART. VII. DESCRIPTION OF THE PREMISES. 99 Thus, it wa.s held that a designation by lot and block, t'ol- lowed by a description by metes and bounds embracing an area less than the lot, imports an intent of the grantor to convey the whole lot.^ And when lands are conveyed by the subdivisions and numbers of government surveys, in the absence of intervening descriptions in deeds by metes and bounds, the boundaries of sections and divisions thereof, as marked and run in the original survey, are presumed to continue, and are conclusive as to such boundaries.- Though not located with mathematical precision, no error in placing the corners or marks can be corrected, altered or controlled, by other surveys.^ In the absence of satisfactory proof of marked lines and corners, the plat and certificate of survey accompanying the grant will be evidence of the boundaries of the land granted.* § 109. As Often as there is an Exception, its effect is to take the hinds out of the operation of the grant. The clause of exception may be in any part of the deed, but it is proper that it should follow the description of the thing granted, and it may with propriety be considered under that head. In the lirst place, the thing excepted should be as fully and accurately described as if it were being granted by an original grant. Therefore, the rules laid down for the identitication of the subject of the grant will apply equally to exceptions.^ An exception must be a part of the thing granted, and must be to be taken in substance out of that, so that he who excepts may have and own the thing 1 Rutherford v. Tracy, 48 3Io. 327. 2 Van Blarcom v. Kip, 2 Dutch. 351 ; Climer v. Wallace, 28 Mo. 556. 3 Billiugsley v. Bates, 30 Ala. 378. ^ Tate V. Gray, 1 Swan (Tenn.), 73. The original descriptions of the subdivisions of the public lands, made by the Surveyor General from the field-notes or books of the deputy surveyor, and plats showing such sub- divisions, are evidence as to their boundaries, and duly authenticated copies of such descriptions and plats are also evidence. Madison City V. Hiklreth, 2 Carter (Ind.), 274. 5 Where there is a description in a deed followed by an exception, which is uncertain, the exception may hi void for uncertainty, but the description will stand. Thayer v. Torrey, 37 X. J. L. 339. 100 CONVEVANCIN( . CH. II. excepted.' It is to be observed thut the exception must be of a particular thing out of a general or more eom})rehen- sive term, and not of a i)articnlar thing out of a certainty expressl}' granted. But its being a greater part is no objec- tion; as if a grant be of a farm consisting of one hundred acres, and ninety-nine acres are excei)ted, the exce))tion is good, since there is no rei)ugnancy.- It is also to be ob- served, that there may bean exception out of an exception ; as a farm, except a certain field, saving one rod square occu- pied by a spring, etc. Thus the spring so excepted out of the exception will remain within the operation of the grant. Any appropriate words — as except, besides, saving, or the like — which indicate the intention of the parties, will be suf- ficient to make an exception. So, an exception may be nnide in the form of a reservation, or a reservation in tlie foini of an exception, and the court will, generally, con- strue it according as it is in nature an (wception or reserva- tion, in order to carry out the intention of the parties.^ ARTICLE Vlll. THE HABENDUM. SECTION. 111. The habendum not au essential part of a deed. 1 12. < 'aiinol introduce new parcels into the grant. li;^. Party not named in the grant may take under the hdhoidton, when. 1 14. As to the estate limited. 11"). Rule in .Shelley's case. 11 G. Freehold eaimot be limited to commence in futurv. vj 111. The HabeiHliiin is a Formal siiul not am Essen- tial Pai't of the Deed. — In some of the States it lias , been ' :{ rre=t. Abst., Tit. :}7. ■-' Ilnd. '■' AVhitaker v. Brown, 4(5 Pa. St. 197. See infra, Art. IX. ART. VIII. THE HABENDUM. 101 o^enerally dispensed with, and in the remainder its useful- ness is almost practically obsolete. ^ Its office is to repeat the name of the grantee, and to express the estate which is limited to pass ;''^ and usually contains a description of, or reference to, the property granted. If the granting part of the deed contains proper words of limitation, nothing remains to be accomplished by the habendum. In constru- ing a deed, if there is an apparent repugnance between the granting part and the habendum, in respect to the estate which the grantee is to take in the property granted, the different clauses will be reconciled, if possible, so as to give effect to both.=^ But if the language of the grant be definite in limiting the estate and the habendum is clearly repugnant, the latter will be rejected.* § 112. The Habendum can never introduce new sub-, ject-matter into the grant. Therefore, if more propert}^ is included in the habendum than is comprised in the grant, the additional [)arcels will not pass.^ This rule, however, does not affect such incidents as are in effect included in the grant although they are only named in the habendum.^ For instance, if the premises are granted with appurtenances, an easement which is appendant will pass, although the habendum be of the property together with the easement. 1 Major's Admr. v. Buckley, 51 Mo. 227. But see Montgomery v Sturdivaat, 41 Cal. 290. 2 Mitchell V. Wilsou, 3 Crauch. C. C. 242; Wager v. Wager, 1 Serg. & R. 374. 3 Cummings v. Dearbon, 56 Vt. 441. Grant to woman habendum to the use of heirs, heirs will be construed as "her" heirs. Huntington v. Ly- man, 138 Mass. 205. And see Brown v. Thrall, 28 Vt. 382; Allen v. Halton, 20 Pick. 458. ^ Major's Admr. v. Buckley, 51 Mo. 227; Farquharson v. Eichelberger, 15 Md. 03; Budd v. Brooke, 3 Gill, 23G; 2 Lom. Dig. 215; Flagg v. Eames. 40 Vt. 23; Ratliffe v. Marrs (Ky.), 7 S. R. Rep. 395. ''' Manning v. Smith, Conn. 292. " The habendum refers to the premises and declares the estate which the grantee shall hold in them, and it may sometimes enlarge or diminish the grant when it is so worded as to show a clear intention to do so. Stunner V. Williams, 8 Mass. 102. But it cannot operate as a grant. ///. Den. v. Helmes, 3. X. .J. I.. 1050. . 102 CONVEYANCING. CH. II. The lattoi- will pass by force of the grant as part of the (leed.^ The Supreme Court of Nevada, aiitic'ipatin4; 1 Prest. Estates, 2G4. And see Wilkerson V Clark (Ga.), with note, 28 Cent. L. J. 191. 2 Ware v. Richardson, 3Md. 505; Polk v. Faris, 9 Yerg. (Tenn.) 209; Roy V. Garnett, 2 Washb. (Va.) 9; Payne v. Sale, 2 Dev. & B. Eq. 455; Rivaid V. Giseuliof, i<5 Ilun, 247. 3 Turman v. White, 14 B. Men. .560; Andrews v. Spurlin, 35 Ind. 262; Stimson's Amer. Stat., § 1406. ART. IX. THE REDDENDUM. 105 limitation to commence infuturo, except by way of term of years, or by way of remainder. In common-law grants, therefore, such future limitations of freehold interest will be void ; while covenants to stand seized to uses, and l)ar- gains and sales, and trusts, admit of such future limita- tions.^ It is to be observed, however, that in some of the States, a freehold in futiiro may, by statute, be expressly granted.- Although there has been much controversy as to whether any estate of freehold, other than by way of remainder, could be created in futiiro by a deed of bargain and sale, it seems now to be settled, upon principle, that it may, the weight of authorities sustaining the doctrine laid down in our text.'^ But some of the cases hold that such a future limitation can only be sustained in a deed operating as a covenant to stand seized.^ Terms of years may, on their creation, be limited to commence ?'m/m^i«*o; and even terms of years already created may be assigned to hold from a day to come, or from an event, except that a limitation from and after the death of a person has been treated, in many cases, as repugnant. ARTICLE IX. THE KEDDENDUM. SECTION. 118. When used — distinguished from an exception. 119. The essentials to a good reddendum. 1 3 Prest. Abst. Tit. 47; Brewton v. Watson, 07 Ala. 121. 2 Ante^ § 56; Stimson's Amer. Stats., § 1421 ; Gorham v. Daniels, 23 Vt. 600. 3 Kogers v. Eagle Fire Co., Wend. 611, 631 ; Bell v. Scammon, 15 N. H. 381. See 2 Washb. on Real Prop. 618; Burt, on Real Prop.. § 145; 2B1. Com. 166; 2 Prest. on Conv., 157; Jackson v. Swart, 20 Johns. 87, 93; Trafton v. Hawes, 102 Mass. 533. ■* Jackson v. Delanoej% 4Cow. 427; Brewer v. Hardy, 22 Pick. 376, 380; Wallis V. Wallis,4 Mass. 135; Welsh v. Foster, 12 Mass. 73, 76; Marden V. Chase, 32 Me. 329. And see Barrett v. French, 1 Conn. 354. l()(i CONVEYANCING. CH. II. § 118. AVhen Used. — Distinj^uislied From an Excep- tion. — The reddendum is used wlien something is to be re- served out of the j)roj)erty granted. The distinction be- tween a reservation and an exception is, that by an excep- tion the grantor withdraws from the effect of the grant some i)art of the thing itself which exists in substance at the time of making the grant, and which is included in the granted premises; while a reservation is of some new right or other thing issuing or coming out of that which is granted, and not a i)art of the thing itself;^ or it n)ay l)e of an ex- isting easement or servitude, not capable of being severed from the grant.- And whether a restriction in a deed will be deemed a reservation or an exception, depends less upon the words used, than u[)on the nature of the right or thing reserved or . excepted.-^ Thus, where "excepting" is used 1 Shep. Touch. 80; Craig v. Wells, 11 N. Y. 315; Marshall v. Tnnnbnll, 28 Conn. 183: State v. AVilson, 42 Me. 0: Ives v. Van Auken, .34 Barb. 5G6; Ashcroft V. Eastern R. R., 120 Mass. 1!)6; AVhitaker v. Brown, 4G Pa. St. 197; Bridger V. Pierson, 1 Lans. 481; Stackbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Munn v. Worrall, 53 X. Y.44; Moulton V. Trafton. 64 Me. 218. 2 Cutler V. Tufts, 3 Pick. 272, 278; Doe v. Lock,4 Isrev.& M. 807; Pet- tee V. Hawes, 13 Pick. 323, 326; Hurd v. Curtis, 7 Mete. 110. In Choate V. Burnhani. 7 Pick. 274, the reservation was of a jirivilege of a way through the granted premises. So, in Ashcroft v. Eastern R. R., 126 Mass. 19G, a clause in a deed to a railroad corporation "reserving to my- self the right of passing, and repassing, and repairing iny aqueduct logs forever, through a culvert six feet wide and rising in height to the su- perstructure of the railroad, to be built and kept in repair by said com- pany," held a reservation and not an exception. But another case, where one granted a farm, reserving the highwaj's across it, this was construed to be an exception as to tlie easements, in the covenants con- tained in his deed, and not of the soil of these. Richardson v. Palmer, 38]Sr. H. 212. See Bridger V. Pierson, 45 N. Y. 601, 603; Winthrop v. Fairbanks, 41 Me. 311 ; Leavitt v. Towle, 8 N. H. 96. ^ A grant of land reserving the use of a well is a reservation and not an exception, and the grantee has a right to use it also if he could do so without interfering with the use of it by the grantor. Barnes v. Burt, 38 Conn. .541. A limited right to cut and carry away timber from the granted premises treated as a reservation. Hornbeck v. AVestbrook, 9 Johns. 73; Jiicli v. Zeilsdorff, 22 Wis. 544. When tlie expressed inten- tion of the parties is the controlling consideration, the distinction be- tween exceptions and reservations is not material. ART. IX. THE IlEDDENDUM. 107 with evident intention to create a reservation, effect will be ofiven to it in that sense. And that which in terms is a res- ervation in a deed is often construed to be a good exception, in order that the object designed to be secured ma}' not be lost.^ A reservation in a deed is sometimes construed also as an implied covenant, For example, it has been held that a deed in consideration of natural love and affection, con- veying land but reserving to the grantor the use thereof during his life, oi)erates as a covenant to stand seized to the use of the donee."^ The construction of a reservation, as of other parts of a deed, is to be most strongly against the grantor, yet the obvious intention of the parties, as shown by the words used, must govern.^ § 119. The Essentials to a Good Reddendum. — In every good reddendum or reservation these things must con- cur, namely : The reservation must be made to a grantor and not to a stranger to the deed;* it must be out of the estate granted and not out of something else;" the thing or property reserved must, as in the case of an exception, be described in sufficiently delinite terms to afford some means of identitication ,*" and being equal to a grant must contain 1 Winthorp v. Fairbanks, 41 Me. 307. A deed ''reserving all the min- erals underlying the soil," being a part of tlie land described in the deed, the intention of tbe grantor evidently being to retain a fee-simple title to the minerals, was held to create an exception. Sloan v. Lawrence Furnace Co., 20 Ohio St. 568. 2 McDaniel v. .Johns, 45 Miss. 632. 3 Wiley V. Sirdorus, 41 Iowa, 224. Tlie rule that a deed or grant must be construed most strongly against the grantor applies with especial force to a reservation in a deed wherebj^ tliere is a withholding of some- thing from the grant. Klaer v. Ridgway, 86 Pa. St. 529. ^ Ilornbeck v. Westbrook, 9 Johns. 74; Petition of Young, 11 R. I. 636; Bridger v. Pierson, 1 Lans. 481 ; Illinois R. R. Co. v. Indiana R. R. Co., 85 111. 211. But it may operate, when so intended by the parties, as an exception from the thing granted and as notice to the grantee of adverse claims as to the thing excepted and reserved. "West Point Iron Co. v. Reymert, 45 X. Y. 703. And see Bridger v. Pierson, 45 N. Y. 601 ; Bros- sart V. Corlett, 27 Iowa, 288. ^ Dyer v. Sanford, 9 Mete. 395. 6 Woodcock V. Estey, 43 Vt. 515; -Tewett v. Ricker, 68 Me. 377. The same certainty of description is required in a reservation or exception 108 CONVEYANCING. (11. II. words of limitation, in oidcr to extend beyond the life of the grantor.' In England, tiie term reservation ap})lies chielly to rents, or sonietliin<2; in the nature of rents;- but, as we have .seen, in this countrv it has a more extended signifieation. ARTICLE X. , CONDITIONS, LIMITATIONS AXD OTHER SPECIAL AGREEMENTS. SECTION. 121. Such stipulations may appear in any part of the deed. 122. A ooiiditiou delined. 123. General and special conditions. 124. Conditions precedent and subsequent. 125. Void conditions. 12G. Whether a condition or a covenant. 127. Conditions distinguished from limitations. 128. Distinguished from remainders. § 121. Such Coiulitious may Appear in any Part of the Deed. — Stipulations in the form of conditions, limitations and similar afyrceinents, as often as they are contained in a deed, are properly inserted next after the habendum or reddendum^ but may appear in any other part of the instru- ment and be equally effectual. § 122. A Condition is a qualitication or restriction, an- outof a grant as in the grant itself; and when a deed reserves out of the conveyance one acre of land and there is nothing in the exception or evidence to locate it upon any particular part of the tract, the reserva- tion is (Void for uncertainty and the grantee takes the entire tract. Mooney v. Cool«dge, 'M Ark. (i40. J Ashcroft V. Eastern R.R.,12G Mass. 198; Dennis v. Wilson, 107 Mass. .")91; Handy v. Foley, 121 Mass. 15S; Bean v. Coleman, 44 X. II. 542; llornbeck v. Westbrook, U Johns. 73. But no words of limitation are necessary in case of an exception. Winthrop v. Fairbanks, 41 Me. 307. 2 1 Wood on Conv. 225. AllT. X. CUADITIUNS, LIMITATIONS, ETC. 109 nexed to a conreyance of lands, whej-eby it is provided that, in case a particular event docs or does not hap])en, or in case the grantor or grantee does or omits to do a i)artic- ular act, an estate shall commence, be enlarged, restricted, or defeated. The stipulations in the form of conditions are various, and may be of any kind not inconsistent with the general rules of law or against public policy.^ § 123. Conditions are either General or Special. — The former put an end altogether to the tenancy on entry for breach ; but the latter onl}^ authorize the reversioner to en- ter on the land and take the profits to his own use and hold the land by way of pledge until the condition be fultilled.- § 124, Conditions are also either Precedent or Subse- quent. — A })recedent condition is one which must take place before the estate can vest or be enlarged. Subse- quent conditions are those which operate upon estates already created and vested, and render them liable to be defeated.^ There are no technical words to distino;uish them ; whether a condition is precedent or subsequent, depends on the intention of the parties.* Precedent con- ditions must be literally performed. Courts of equity will 1 A condition ill a deed that no intoxicating liquors stiall be manufact- ured or sold to be used as a beverage, by the grantee, his heirs or assigns, upon the premises conveyed, and imposing forfeiture and giving a right of re-entry upon condition brolien is a valid condition, not re- pugnant to the grant; and upon proof of In-each the grantor may recover in ejectment without previous entry, demand or notice. Plumb v. Tubbs, 41 N. Y. 442; O'Brien v. Wetherell, 14 Kan. G16; Collins v. Marcy, 25 Conn. 242; Cowell v. Col. Springs Co., Sup. Ct. U. S., 9 Cent. L. J. 461; Smith v. Barrie, 56 Mich. i514. As to conditions deiined by statute. See Stimson's Amer. Stat.. § i:560. 2 Co. Lift. 203«; Shep. Touch. 157; 4 Kent's Com. 124. ^ A deed providing that if spirituous liquors be sold on the premises it should be void, is held a condition subsequent. Jeffery v. Graham, 61 Tex. 481. So also a conveyance to a railroad in consideration of its maintainance of depot oa laud adjoining. C, C. tt I. Ry. Co. v. Coburn, 91 ind. 567. So also land conveyed to county for court house. Pepin County V. Prindle, 61 Wis. 301. But see Henry v. Etowah County, 77 Ala. 538. * 4 Kent's Com. 124, 125; Sheppard v. 'I'liumas, 26 Ark. 617; Shinu v. Roberts, 20 N. J. L. 435; Underbill v. S. & W. R. R., 20 Barb. 455. 110 CONVEYANCING. CH. II. not, in f^eiieial, relieve from the consequences of u condi- tion precedent unperformed.^ A deed upon condition sub- sequent conveys the fee with all its qualities of transmission. The condition has no effect to limit the title until it becomes operative to defeat it.- Notwithstandinir a breach of the condition, the estate continues in the fjjrantee, until defeated by actual entr}^ made for the purpose of claiming a forfeit- ure by some one having a right to do so.'^ Such entry may be made by the grantor or his heirs.* But after condition broken the jrranlor's right of entry cannot be conveyed to a stranger. •'' If a condition subsequent be possible at the time of mak- ing it and afterwards becomes impossible to be complied with, either by the act of God or of law, or of the grantor ; or if it be impossible at the time of making it, or against law, the estate of the grantee being once vested, is not thereb}^ divested, but becomes absolute.*' § 125. Void Conditions. — Among the conditions which upon principles of public policy are void as against law, are those in restraint of alienation or marriage; though if these be limited to a particular time or person they may be valid." 1 Scott V. Tyler, 2 Bro. C. C. 431; Bertie v. Falkland, Freem. Cb. 220. - Shattuck V. Hastings, 99 Mass. 23; Menii)his R. R. Co. v. Neighbors, 51 Miss. 412. 3 Cross V. Carson, S Blackf. 138; Kenner v. Amer. Con. Co., 9 Bush, 202 ; Osgood V. Abbott, 58 Me. 73. See 2 Washb. on Real Prop., 451, 4.52 ; Guild V. Jtichards, 10 Cray, 309; Memphis R. R. Co. v. Neighbors, 51 Miss. 412; Chapman v. Pingree, 07 Me. 198. •* Osgood V. Abbott, 58 Me. 77. There need not be an express reserva- tion of a light to enter for the breach of a condition. Thomas v. Rec- ord, 47 Me. 500. 5 Co. Litt. 214, a. ; 214, b. ; Shep. Touch. 231 ; 2 Washb. on Real Prop. .599; Guild v. Richards, 10 Gray, 309; Dewey v. Williams, 40 N. H. 222. « Taylor v. Sutton. 15 Ga. 103; Hughes v. Edwards, 9 Wheat. 489; United States v. Arredondo, Pet. 091 ; Merrill v. Emory, 10 Pick. 507; Barksdale v. Elam, 30 Miss. G94. ^ Attwater v. Attwater, 18 Beav. 330; Doe v. Pearson, 6 East, 174; Co. Litt. 223, a. If the condition be in absolute restraint of marriage until the devisee is twenty-one years of age, it is a reasonable and, therefore, a good condition, though subsequent, and will defeat the estate if vio- lated. Shackelford v. Hall, 19 111. 212. ART. X. CONDITIO^S, LIMITATIONS, ETC. Ill Conditions are not sustained when repugnant to the nature of the estate granted, or when the\^ infringe upon the essen- tial enjoyment of the rights of property, and tend mani- festly to public inconvenience. 1 But if the condition is precedent, inasmuch as the estate does not vest at all until such condition happens, the effect of its being unlawful or impossible is that the estate dependent on it fails, and the grant becomes wholly void.- § 12»). Whether a Condition or a Covenant. — Condi- tions, esi)ecially conditions subsequent, are not favored in law, because they tend to destroy estates.^ When relied on to work a forfeiture they must be created by express terms or clear implication, and are construed strictly. Courts always construe clauses in deeds as covenants rather than conditions, if the}' can reasonably do so,* and the question as to whether a clause implies a condition or a covenant often depends upon the apparent intention of the parties rather than upon fixed rules of construction. ^ The distinc- iGadberry v. Sheppard, 27 Miss. 203; Kellam v. Kellam, 2 P. & H. (Va.) 357. Deed eouveyiug absolute title in fee, and by way of condi- tion providing that the land if not disposed of during grantee's life- time shall revert to the grantor, the condition being repugnant to the grant, is void. Case v. Devise, 60 Iowa, 442. 2 Co. Litt. 206; Taylor v. Mason, 9 Wheat. 325; Martin v. Ballou, 13 Barb. 119. 3 Laberee v. Carleton, 53 Me. 211 ; Southard v. Central R. R., 26 N. J. L. 13; Hoyt v. Kimball, 49 N. H. 322; Page v. Palmer, 48 IST. H. 385; Wilson V. Gait. 18 111. 431 ; Thompson v. Thompson, 9 lud. 323. Stipu- lation that property should be used for burying ground or church, held not a condition. Rawson v. Uxbridge School District, 7 Allen, 125; Episcopal City Mission v. Appleton, 117 Mass. 326. But see Bennett v. Culver, 97 X. Y. 250; Adams v. Valentine, 33 Fed. Rep. 1. Stipulation in a clause that a dwelling house should be erected on the land to cost not less than certain sum, held not a condition. Stone v. Houghton, 139 Mass. 170. 4 4 Kent's Cora. 132; Hoyt v. Kimball, 49 N. II. 322; Packard v. Ames, 16 Gray, 327; Thornton v. Trammell, 39 Ga. 202; Ayer v. Emery, 14 Allen, 67. Still they are not to ignore the settled legal signiticance of the language employed. Adams v. Valentine, 33 Fed. Rep. 1. 5 2 Par. on Cont. 3i ; Piatt on Conv. 71. See Woodruff v. W. P. Co., 10 N. J. Eq. 489; McCullough v. Cox, 6 Barb. (X. Y.) 386; Houston v. Spruance, 4 Ilarr. (Del.) 117. 112 CONVEYANCING. CH. II. tion between conditions and covenants may be illustrated thus — wiiile a covenant may be said to be a contract, a con- dition is something affixed as a penalty for non-fulfillment of a contract; a covenant may be made by the grantee; a condition, by the grantor only.^ § 127. Conditions are to be Distiiijiuished from Liniit- atious. — A stranger may take advantage of a limitation, but only the grantor or his heirs, of a condition.- A limit- ation always determines an estate without entry or claim, a condition does not.'^ If a condition subsequent be followed by a limitation over to a third person in case the condition be not fulfilled, or there be a breach of it, that is termed a conditional limitation, and partakes both of the nature of a condition and a limitation. Words of limitation mark the ))eriod which is to determine the estate, and, upon the con- tingency taking place, the estate passes to the levcrsioner without entry; but words of condition render the estate liat)lc to bo defeated in the intermediate time, if the event expressed in the condition arises before the determination of the period described by the limitation.* § 128. Conditions arc also to be Distinguished from Remainders. — A condition operates to defeat an estate be- fore its natural termination : a remainder takes effect on completion of a preceding estate.'' There is a nice distinc- tion made between conditional limitations and contingent remainders. Thus, it is said, " contingent remainders are limited to commence when the first estate is, by its orignal limitation, to determine; but conditional limitations are so 1 2 Coke. 70. A couditiou in a deed, when explicit words creating a condition are used, will not be coustrued a covenant except to avoid a forfeiture. Underbill v. Saratoga K. R., 20 Barb. 455; Sbaron Iron Co. V. Erie. 41 Pa. St. 341. 2 Southard v. Central R. R.. 2(j X. J. L. 1 ; People of Vermont v. So- ciety, 2 Paine C. C. 545. 3 Id.; Osgood v. Abbott, 5S Me. 73; Guild v. Richards, 16 Gray, 309. •» 4 Kent's Com. 127; Brattle Square Church v. Grant, 3 Gray, 142; Stearns v. Godfrev, 1<) Me. 158; Fifty Associates v. IJowland, 11 Mete. 99. 5 Co. I.itt. i'.iitl.'r"s Xotes, 94, 99; Stearns v. Godfrey, 16 Me. 158. ART. XI. USES, TFtUSTS AND POWERS. 113 limited as to be independent of the extent and measure given to tiie first estate, and are to take effeet upon an event whieh may happen before the regular determination of the first estate, and so rescind it.'"^ '"The distinctions on this subject," says Chanc(dh)r Kent, " are extremely subtle and artificial; and the construction of a deed, as to its operation and effect, will, after all, depend less upon artifi- cial rules than upon the application of good sense and sound equity to the object and spirit of the contract in a given case.'"- The learning under the head of remainders belongs to the doctrine of estates, rather than conveyanc- ing, and will be found in general treatises upon the law of real property. ARTICLK XI. USES, TKUSTS AND POWERS. SECTION. 131. The subjects to be discussed under the present heading. 132. Uses defined. 133. Shifting or secondary uses. 134. Springing uses. 135. Future and contingent uses. 136. Uses in the United States. 137. Origin of trusts. 138. Our present system of trusts. 139. Classification of trusts. 140. Simple and special trusts. 141. Executed and executory trusts. 142. Active and passive trusts. 143. Ministerial and discretionary trusts. 144. Trusts divided in reference to their creation. 145. The parties to a trust. 146. The creation and assignment of trusts. 147. Powers are of two sorts. ^ Fearne on Remainders, 10. 18; Cogan v. Cogan. Cro. Eliz. 360; Ej)i' copal City Mission v. Appleton, 117 Mass. 320. 2 4 Kent's Com. 132. (8) 114 CONVEYANCINU. CH. II. 148. Power of appoiutiiu-nt defined. 14th (U'lieral and particular powers. IT)!). I'owtMS collateral, appendant and in gross. If)]. 'I'iie creation of a power. 152. The execution of powers. 153. Who may execute a power. 154. Conditions annexed to power must be strictly complied with. 155. Power need not be referred to in its execution. 1.50. 'i'he appointee takes under the original deed. 157. Kquity jurisdiction over the execution of powers. 158. The suspension and destruction of powers. § I'M. The Subjects enibrjuted under the present head conipri.se, it has been said, the most intricate labyrinth of oui- jurisprudence, the magnitude of which is too great to admit of our presenting more than a brief outline here. But the Statute of Uses and the doctrines of law and prin- ciples of ecpiity founded upon it, are of too much im))or- tance to our system of conveyancing, not to receive some notice in a work like the present. § 132. Uses existed in the Roman law under the name of Jidei commism, or trusts, from whence they were borrowed by the ecclesiastics and introduced into England for the purpose of evading the Statute of Mortmain, which, it will be remembered, prohibited religious corporations from hold- ing land. A use, as it existed before the Statute of Uses, was a right to receive the profits of land of which the legal ownership was vested in some other person. The common law courts refused to recognize uses, and consequently left a cestui que use entirely dependent upon the good faith of his trustee. But the clerical chaiK-ellors of those times held such trusts or confidences to be binding upon the conscience, and accordingly enforced them. To avoid many incoven- iences "^rowing out of the doctrine of uses, the Statute of U.ses was passed, ^ which enacts that, "when any person shall be seized of lands, etc., to the use, confidence or trust of any other person or body politic, the person or corporation entitled to the use in fee-simple, fee-tail, for life or years, or otherwise, shall from thenceforth stand and be seized or ' 27 Henry VIII., ch. 10. ART. XI, USES, TUUSTS AND POWEUS. 115 possessed of the land, etc., of and in the like estate as they have in use, trust or conridencc; and that the estates of the persons so seized to the uses shall be deemed to be in him or them that iiave the use, in such quality, manner, form and condition as they had before in the use." The statute thus executes the use; that is, it conveys the possession to the use, and transfers the use to the possession, and in this manner makes the cestui que use complete owner of the lands, as well at law as in equity.^ Thus, a modern use has been defined to be "an estate or right acquired throuuh the operation of the Statute of Uses, and which, when it may take effect according to the rules of the common law. is called the legal estate, and when it niay not, is denomi- nated a use, with a term descriptive of its modification, '"- But in the construction of the statute, it was held that a use could not be raised upon a use, and, therefore, on a feoffment to A. and his heirs to the use of B, and his heirs, in trust for C. and his heirs, the statute executed only the first use, and the second was a mere nullity, which again opened the doors of the court of chancery. This court declared the second use to be valid in equity, and com- pelled B. to act as trustee for C, who was then called the cestui que trust, to distinguish him from the cestui que use; so that the only difference made in equitable estates, which the statute was designed to abolish, was apparently to sub- stitute trust for uses. But the effect of the statute upon legal estates was far more important. When a use was changed from an equitable to a legal estate the same quali- ties which were proper to it in its fiduciary state followed it when it became a legal estate. The equitable doctrine of uses was thus transferred to the courts of law, and be- came additional branches of the law of real property. "The practical result was the addition of the words 'to the use of,' to every conveyance."^ The pliable qualities 1 2 Bl. Com. 333. 2 Coruish Uses. 35, 3 Williams on Real Prop. 133. •!•' CONVEYANCIKG. CH. II. belonging to uses were well adapted to answer various pur- poses to which estates at common law could not be made subservient, by means of shifting, contingent and spring- ing uses, and by the reservation of a [)ower to revoke the uses of the estate and direct others. These presented a method of creating a future interest in land, and facilitated the development of the system of conveyances which de- rive their effect from the Statute of Uses. § 13o. Shiftiiiji> or Secondary Uses are such as take effect in derogation of some other estate, and are either limited by the deed creating them, or authorized to be created by some person named in the deed.^ Forexam[)le, if an estate be limited to A. and his heirs until B. pays A. $100, and then to the use of 1>. and his heirs, the estate is vested in A. subject to a shifting or secondary use in B. A common ai)})lication of these shifting uses is found in mar- riage settlements: the first use being to the owner in fee till after mai-riage, and then to other uses. The doctrine of shifting or secondary uses furnished a means of evading the principle of the common law, that a fee could not be limited after a fee.'-^ § 134. Springiiij;- Uses are limited to arise in a future event, where no preceding use is limited, and which does not take effect in derogation of any other interest than that which results to the grantor or remains in him in the mean- time.-' A grant to A. in fee, to the use of B. in fee, after the first day of March next, is an instance of a springing use, and no use arises until the limited period. The use in the meantime results to the grantor, who has a determina- ble fee.* By means of powers, a use, with its accompany- ing estate, may be made to spring up at the will of any given person. Springing uses may be raised b}' any form ^ Gilb. Uses, Sugd. ed. Iij2, n.; 4 Kent's Com. '297; 2 Washb. on Real Prop.. 4th ed., 618. 2 For the learning under this head, see 2 AVashb. on Real Prop. 4th ed., 284, et seq.; Williams ou Real Proj). 24;{; Plovvd..2r). 3 Glib. Uses, Sugd. ed. 153, n. * Woodliff V. Drury, Cro. Eli/. 439. ART. XI. USKS, TRUSTS AND POWERS. 117 of conveyance ; but in the coninion-law conveyances, wliich operate by transmutation of possession, the estate must be conveyed, and the use be raised, out of the seizin created in the grantee by the conveyance; while, in covenants to stand seized and conveyances by bar Vt. 600. 118 CONVEYANCING. < H. II. statute.^ In consequence of this want of uniformity in the statutes and rulinjics of the courts of the several States, as well as of the great variety of forms and systems of con- veyances, it would be impracticable to attempt to define the extent to which uses are in force in the several States. The intelligent practitioner will determine that for himself by reference to the statutes, decisions and precedents for con- veyances in his own State. § 137. The Orij?iii of Trusts. — We have seen in what manner the object of the Statute of Uses was subverted, by the courts of law and equity, by the substitution of trusts in the place of uses.^ It was held that a use could not be raised upon a use; therefore, at law, a second lim- itation to uses was simply void. And thus it was that the statute executed only the first use, leaving the beneficiary of the second use, or the cestui que trust, as he was called, to seek his remedy in a court of equity. Chattel interests were also held not to be within the statute, because it re- ferred only to persons who were seized. The tenant of a term was held not to be technically seized, and so the stat- ute did not apply to a term of years. -^ And again, the statute did not execute the legal title to the cestui que use if the first taker was to perform any active duties in regard to the estate; as, if he was to hold the same for a certam time, or was to improve or lease the same and pay over the rents.* In each of these cases the parties beneficially in- terested 111 the property had no remedy at law for any with- holding of their rights. The courts of chancery laid hold of this want of redress at law, and conqjelled the perform- ance of these uses under the name of trusts, and thus was afforded the opportunity of establishing, by gradual devel- 1 Rev. Stats., Vol. 2, p. 1105, §§ 45, 4G. ^Ante, § 132. ^5 Doe V. Passinghaui, 6 Barn. & Cress. 305; Tyrell's Case, Dyer, 155; Meredith v. Jones, Cro. Oar. 244; Anon, Dyer, 369 a. ^Kellogir V. Hale, lOS 111. 1(54. Where the grant was to A. and his heirs to receive the rents and pay them over toB. and his heirs, it was held to be a trust which descended to the heirs of B., and that B. could not convej' the land. Harlow v. Cowdrey, 109 Mass. 183. ART. XI. USES, TRUvHTS AND POWERS. IT.) opment, a code of vory refined jurisprudence, well suited to the varyinf]^ wants and necessities of an advancing civi- lization. § 138. Our Present S.V8tein of Trusts. — Trusts are at present what uses were before the statute, so far as they are mere fiduciary interests, distinct from the legal estate. They are defined to be "an obligation upon a person arising out of a confidence reposed in him to apply property faith- fully and according to such confidence."' The right of the beneficiary, the obligation of the trustee and the subject- matter, together constitute the trust. The Statute of Uses was passed before the colonists left England, and it became, as we have seen, a part of the common law in some of the colonies.'- But the doctrine of trusts founded upon that statute had not been reduced to a system when America was first settled, and was not introduced into the jurisprudence of this country until many years after. And Mr. Story considers it a favorable circumstance that equity jurisdic- tion was not conferred upon our courts until the system had been settled upon a broad and rational foundation. •• Trusts are now recognized in the legislation of all the States, and provisions and rules are made for their creation, reorulation and duration, and in some States for their administration ; but they are still left to the exclusive cognizance and juris- diction of courts of equity, or to the equity powers of the common law courts. It is not our purpose to review the legislation of each State ujxin this subject, but simply to state a few of the general principles applicable in all of the States. § 139. Classification of Trusts. — Trusts are either sim- ple or special ; executed or executory ; active or passive ; ministerial or discretionary. § 140. Simple and Special Trusts. — A simple trust is one where property is conveyed to (ine person in trust for 1 Stair's Inst. Laws, Scotland, B. IV. Tit. 6,i}§ 2,3, pp. 591, 59-2: Willis' Trusts, 1 ; 1 Sand. Uses and Trusts, 6: 3 Bl. Com. 431. 2 Perry on Trusts, § 9; Ante, § 136. 3 Story's Eq. Jur., § 56. 120 CONVEYANCINO, CH. II. another, without any fiirthei- jipecificHtions or directions. In such case the hiw retrulates tlie trust. 'Die le<>al title is merely vested in the grantee: the cestui que tnint is entitled to the rents and protits, has power to dispose of the hind, and may call upon the trustee to execute the requisite con- veyances.^ Special trusts are trusts created for a specified purpose ; as for the accumulation of i)rofits, the sale of estates, and other dispositions of trust funds. Trusts of this character preclude all power of interference on the part of the cestui que trust until the |)urposes of the trust are satisfied. - § 141. Executed uiul Executory Trusts. — An executed trust is one where the legal or equitable estate passes to the trustee at its creation. ^ It may be sujjjrested, that it fre- quently becomes an injportant and difficult question to de- termine whether the estate limited is legal or equitable. We will not stop here to discuss that question, but refer the reader to Mr. Washburn's treatise on the Law of Real Property, for a very clear illustration of the subject.* An executory trust is one which is to be perfected at a future period by a conveyance or settlement; as, in case of a conveyance to B. in trust to convey to C.-'' § 142. The Distinction Between Active and Passive Trusts (;orresponds very nearly to that between executed and executory trusts. An (ictive trust is one in which the trustee has some duty to perform, so that the legal estate must remain in him or the trust be defeated. While a passive, or dry trust, as it is sometimes called, is one which requires the performance of no duty by the trustee to carry out the trust, but by force of which the legal title merely rests in the trustee.^ 1 VVilliaiii:^ oil Real Prop. i:',r,: IN-rry on Trusts. § 18: 2 Washb. on Real lMoiJ.4th ed., lUC. =* Sander's Uses, 18(i. 3 1 Preston Est. IDO. * 2 Washb. on Real Prop. 4th ed.. 107, 108, «/. seq. 3 Bouv, I.. Die. Trusts. *> Bouv. L. Die. Trusts: (Joodrleh v. Milwaukee', 24 Wis. 422. ART. XI. USES, TRUSTS AND I'OWERS. 121 § 143. Ministei-ial and Discretionary Trusts. — A min- isterial trust is one where the trustee is to do a simple min- isteriai act, an act requirin<^ the exercise of no judgment or discretion. Thus, a trust to convey to the cestui que trust, at his request, is ministerial. But where a choice of time, manner or place is given to the trustee, or if he must use his best judgment in the execution of the trust, it is a dis- cretionary trust. ^ This distinction is not very important, or of much service in determining the duties of a trustee in any given case. § 144. Trusts are Divided, in Reference to their Crea- tion, into express and implied trusts. Express trusts are those which are created in express terms in the deed, writ- ing or will. Implied trusts are trusts raised by implication , or construction of law, from the words used ; or, are pre- sumed to exist from the supposed intention of the parties or the nature of the transaction. The latter definition em- braces resulting trusts and constructive trusts. An instance of resulting trust occurs where one man pays the purchase- money for an estate and the deed is taken in the name of another. Courts presume that a trust is intended for the person who pays the money. A constructive trust arises where a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. Courts construe this to be in trust for the benefit of the cestui que trust. § 145. The Parties to a Trust. — In the first place it may be stated, as a general rule, that all persons have the same power to create trusts as they have to make a disposition of their property, and whoever is capable of taking the legal title or beneficial interest in property may take the same in trust for another.- It may be stated further, as a rule that admits of no exception, that when a trust is once prop- erly created, equity will not allow it to fail on account of the ^ Attorney- General v. Gleg, 1 Atk. 356; Perry ou Trusts, § 19. "^ Mulin V. Malin, 1 Wend. 625; Kerr v. Day, 14 Pa. Sts. 114; Pollexfen V. Moore, 3 Atk. 293; McKay v. Carriugton, 1 McLean, 50. 122 CONVEYANCING. CH. II. incompetency, disability, death or non-appointment of a trustee.^ If the trust or beneficial purpose be well declared, and if the bcneticiary is a definite person or corporation capable of taking, the law itself will fasten the trust upon him who has the legal estate, whether it be the grantor, testator or heir, as the case may be. But to sustain a trust — outside of the domain of cliarilabk uses — there must al- ways be a beneficiary, ascertained or capable of being as- certained, who has a right to enforce it.'^ § 14(). The Creation and Assignment of Trusts. — We have already seen that every legal estate of freehold must be created and transferred by dcx'<\. But this is not so with equitable estates." Although it is usual to adopt the same forms of conveyance by deed in the eication and assign- ment of trusts as in the ti-ansferof legal estate, such for- mality is not necessary."' And no particular form of words is requisite to create a trust , provided the intention is clearly indicated.'' It may be ri^marked that a deelaration of trust is not a grant, and m:iy he as well and effectually declared in the reciting jiart of a conveyance as in any ' reny on Trust.s, S 38; Co. Litt. 2iK>, b.. li;i a., Butler's n. 1 ; Story'*' Eq. Jur., §§ 98, 976. 2 Williams V. Williams, 8 X. Y. .■)40: Story's E .Johns. Ch. T; Perry on Trusts, § 83: Lewin on Trusts, 46; Loman v. Whitley, 4 Kus.s. 423; Ilaiper v. Phelps, 21 Conn. 2.57. 2 The nature of the written evidence and the signing required by the statute of frauds have been considered in a former chapter. Ante, §§ 4, .5, 6, 7. A mere memorandum upon a ledger is not a sutlicient writing, under the statute. Homer v. Homer, 107 Mass. 82. ^ Ivfm. chap. Ill, art. VI. * 1 Williams on Real Prop. 272. 6 Co. Litt. 271. a, Butlers' n. 231. Kent's Com. 316. AUT. XI. USEti, TRUSTS AND I'UWKUS. 125 himself or another.'"^ To these may be added the following: An authority retained by or conferred upon a person to dis- pose of real estate, or to create, transfer or limit some estate or iDterestjtberein, or charge thereon, which tbe owner grant- ing or reserving such power migbt himself lawfully do.* Powers are to be distinguished from trusts. As will be noticed, a simple power is never imperative; it leaves the act to be done at the will of the i)arty to whom it is given, while trusts are always imperative, and are obligatory upon the conscience of the part}^ intrusted.^ § 14y. Powers are Distinguished, first, as General and Particular Powers. — A general power is one which may be exercised in favor of any person whom the donee may select, including himself. A particular power is one which the donee of the power can exercise only in favor of par- ticular objects; as, for instance, a power to appoint land amongst the children of A. § 150. These are Divided again into Powers Collat- eral, Appendant and in Gross. — Collateral powers are those in which the donee has no estate in the laud; as where an estate is limited to the use of A., with power to B. to revoke that use and limit the property to the use of C. A power appendant is one which is strictly dependent upon the estate limited to whom the power is given, and the exercise of which will affect his interest; as where a power is given to a tenant for life to grant leases in possession.^ Powers in gross are those which give a donee, who has an estate in the land, authority to create such estates only as will not attach on the interest limited to him or take effect out of his own interest; as where a power is given to a tenant for life to 1 Sugd. Pow. 82. ^ A power is not an estate, but it is a mere authority enabling a person through the medium of the Statute of Uses to dispose of an interest in real property vested either in himself or in another persor:. Burleigh v. Clough, 52 X. H. 267. 3 Brown v. Higgs, 8 Ves. 570; Tucker v. Tucker, 1 Seld. 410. See Brewster v. Striker, 2 Comst. 20. * Sugd. Pow., ed. 1856, 107. 126 CONVEYANCING. CJI. 11. create a term of years which is to coninicnce after his deatii.^ § 151. The Creation of a Power may be either by deed or will, by grant to the grantee, or reservation to the o-rantor.'- And no formal words are necessary in either case. Any words which clearly indicate an intention to create a power are sufficient for that purpose. =' The creation, execu- tion and destruction of powers, all depend upon the sub- stantial intention of the parties; and they are construed equitably and liberally in furtherance of that intention.* § 152. Of the Execution of Powers.'^ — The first point to be noticed is, that the exercise of a power must not tend to create a perpetuity." In the application of this ])rinciple the distinction is to be observed between those powers which are general and those which are particular. As to general powers, the rule is simply that the exercise of the power must not create a limitation which, at the time of its exercise, is ob- noxious to the rule against perpetuities. But a limitation created in the exercise of a particular poweris to be read as if it had been inserted in the instrument creating the power at the time when that instrument came into operation. And the validity of the execution of the power then turns upon the question as to whether the limitation so read tends to a perpetuity." § 158. Who may Execute. — Every person, capable of disposing of an estate vested in himself, may exercise a power, or direct a conveyance of land. And many persons, disqualified from acting for themselves, such as infants, 1 Watkins Oonv. 260. 24 Kent's Com. 31!). 3 Dorliind v. Dorlaiid, 2 Earb. SO: Jackson v. Veedcr, 11 Johns, 169. ■i Hawkins v. Kemp. 3 East, 441 ; Jackson v. Veeder. 11 Johns. 16f); Gorin v. Gordon. 38 Miss. 210. ■'' As to statutory form of executing- power. See ytimson's Amer. Stat., § 1659. 6 Goodtitle v. Pettoe, Fitzg. 299; Sugd. Pow. 191. And see Marl- borough V. Godolphin, 1 Eden, 404. " Doe V. Cavendish, 4 T. 11. 741, n; Speni-er v. Marlborougli, 3 Brown P. C. 232. See Rush v. Lewis, 21 Pa. St. 72. ART. XI. USES, TliUSTS AND POWERS. 127 aliens, mm ried woiiion {iiid others, nuiy yet exercise a power sim{)ly collateral.' And it seems that a feme covert may execute any kind of |)ower, whether simply collateral, ap- pendant or in gross : and it is immaterial vvhetlier it was given to her while sole or married. ^ The concurrence of her husband is unnecessary in any case.-^ She may even execute it in favor of her husband."^ A naked authority conferred upon several persons cannot, as a rule, be exercised by part of them only.^ But exceptions to this rule have been created by statute in many of the States, in case of the death or disqualification of any of the parties. And it is a general rule that where the persons having the power are vested with anv interest in the estate,*^ or are charged with a trust relative to the estate, and depending upon such power, the power survives.^ It may be added, that persons who are acting in an official or ficUiciary capacity cannot, in general, appoint an attorney to act in their stead. A delegated authority cannot be again delegated, without the express consent of the party creating the power. "^ § 154. Conditions Annexed to the Exercise of a Power must be Strictly Complied with. — The person who creates a power has the undoubted riglit to create whatever checks he pleases to impose, to guard against its abuse.-' There- fore, if a deed be expressly required, the power cannot be 1 4 Kent's Coin. 3; Thompson v. Lyon, 20 Mo. 1.5.5. But, by statute, in New York an infant cannot exercise a power. 2 R. S., p. 1116, §§ 130 131. 2 Sugd. Pow. 148-155; Armstrong v. Kerns, (51 Md. ;{64. '* Thompson v. Murray, 2 Hill (S. C.) Ch. 214; Armstrong v. Kerns, supra. * 2 Washb. on Real Prop. 4th ed. 054; Ladd v. Ladd, 8 How. 27. And see New v. Potts, 55 Ga. 420. 5 Warden v. McDowell, 31 111. 364. « Gray v. Lynch, 8 Gill. 403; Wilburn v. Spofford, 4 Sneed, 698. ' Co. Lilt. 112. b; Osgood v. Franklin, 2 .Johns. Ch. 20, 21 ; Peter v. Beverly, 10 Pet. 532. 564: Muldrow v. Fox, 2 Dana (Ky.), 79; Williams V. Otey. 8 Humph. 563. And see National Bank v. Eldridge, 115 Mass. 484. « McCormick v. Busli. 38 Tex. 314. •' Ladd V. Ladd, 8 How. 10; Sugd. Pow. 205-262. 128 CONVEYANCING. CII. II. executed by a will-/ and if the power is to l)e excciitedby will, it cannot be executed by any act to take effect in the life-time of the donee of the power.'- But where no mode is defined in which a power is to be executed, it nia}^ be ex- ecuted by deed or will, or siin})ly by writing, •■ and a parol execution has been held sufHcient.'* But conditions annexed to a power, which evince no intention of actual benefit to the party in whose favor they are to be performed, and which are merely nominal, may be disregarded in the execu- tion of a power; but in all other respects the intention of the donee of the power as to the mode, time and conditions of execution, must be observed, subject to the power of a court of equity to supply defective executions.''' Thus a power to sell does not ordinarily confer a power to mort- gage.^ But the Supreme Court of Pennsylvania holds that "an absolute and unrestrained power to sell includes a power to mortgage."" So, a power to appoint to children, does not authorize an appointnient to grandchildren.*' The former scrupulous strictness, in regard to the forms pre- scribed in the execution of powers, particularly with re- spect to the attestation of instruments of ap})ointment and ' Alley V. Lawrence, 12 Gray, 37:{. * Ives V. Davenport, ;{ Hill, :57;?. 3 4 Kent's Com. ;«0. * Silverthorn v. McKinster, 12 Pa. St. 67. 5 Bartlett v. Sutherland, 24 Miss. 395; Cleveland v. Boeruni, 27 Barb. 252; Capal v. McMillan, 8 Tort. 197; 2 Washb. on Real Prop. 317; Hetzol V. Barber, 09 X. Y. 1 ; Rakestraw v. Rakestraw, 70 Ga. 80G. See Norcum v. Doench, 17 Mo. 98; Barber v. Gary, 11 N. Y. 397. The in- tention is to be determined from the instriunont creating the power. Guion V. Pickett, 42 Miss. 77. And see Clark v. llornthal, 47 Miss. 434. * Patapsco Guano Co. v. Morrison, 2 Woods, 395; Bloomer v. Waldron, 3 Hill, 361; 2 Washb. on Real Prop. 318; Wilson v. Maryland Life Ins. Co., 60 M(l. l.")0. A power to sell is not a power to exchange. Hampton V. Moorhead, 62 Iowa, 91. ^ Zane v. Kennedy, 73 Pa. St. 182. A powe to executors to operate certain factories so long as in their discretion it could be done without injury to the interests of the estate, held not to imply a power to sell. Downing v. Marshall, 1 Abb. (N. Y.) Ct. App. 525. « Horwitz v. Norris, 49 Pa. St. 217. ART. XI. USES, TRUSTS AND POWERS. 12'J revocation, has relaxed in some degree.^ But a condition attached to the execution of a power, requiring the consent of some particuhir person to be first obtained, and like con- ditions, must be strictly com[)lied with.'- § 155. Power need not be Referred to. — The power may be executed without referring to it, provided it appear that the donee had in view the subject of the power. ^ Thus, if a person having a general power to appoint by will devise the land itself, as owner of it, without reference to his authority, his intention to execute the power is clear, and the land will pass. But, if the donee of a power refers neither to the power nor to the property to which it is sub- ject, it will be presumed, as a general rule, that he did not intend to execute the power, unless the will would other- wise be inoperative, and the intention to execute the power thus becomes manifest.* Where there is an interest and a power existing together in the same person, over the same subject, and an act be done without reference to the power, it will be applied to the interest and not to the power,^ un- less an intent to execute the power may be clearly inferred.^ It has been held that where a person, having a life estate with power to appoint the fee, makes a conveyance in fee, this is a sufficient reference to the power to make the in- strument operate as an execution of it, inasmuch as the words of the instrument cannot otherwise be satisfied." 1 Ladd V. Ladd, 8 How. 30-40. 2 Lancashire V.Lancashire, 2 Phillips, 657; Kissam v. Dierkes. 40 N. Y. 602. 3Sugd. Pow. 289; 4Kent's Com. 334; 2 Washb. on Real Prop. 320; Coryell v. Dunton, 7 Pa. St. 530; Reilly v. Chouquette, 18 Mo. 220; Hut- ton V. Benkard, 92 X. Y. 295; Weir v. Smith, 02 Tex. 1. * Biagge V. Miles, 1 Story, 426; 4 Kent's Com. 335; Amory v. Meredith, 7 Allen, 397; Owen v. Switzer, 51 Mo. 322. And see Collier's Will, 40 Mo. 287; White v. Hicks, 33 X. Y. 383. But where the maker has an estate which will pass, without executing the power, and the instrument is silent on that point, in the case supposed the law will presume that he intended to convey such estate and no more. Pease v. Pilot Knob Co., 49 Mo. 124; Towles v. Fisher, 77 X. C. 437. * .Tones v. Wood, 16 Pa. St. 25. « Owen V. Ellis, 64 Mo. 77. " Campbell v. Johnson, 65 Mo. 439. (9) 130 CONVEYANCINi . CH. II. § 151). The Appointee of a Power takes under the Orif-inal Deed: and the estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power. ^ This rule, however, applies only to certain purposes, and between the parties, and does not interfere with intervening: rif^hts of others. 2 A deed under a power must be recorded, when deeds in general are required to be recorded, the same as any other deed.'^ § 157. Equity Jurisdiction over the Execution of Pow- ers. — Where the manifest intention has been to execute a power, but the act declaring such intention was not an exe- cution of the power in the prescribed form, courts of equity have been in the habit, in certain cases, of aiding the de- fective execution of the power. But equity never inter- poses, except where there is merely a defect in matter of form, and where the intent of the donor will be accom- plished by carrying the execution into effect.* It will not supply the total want of any execution of it,-"^ unless the power be coupled with a trust. *^ § 158. The Suspension and Destruction of Powers. — In the first place, it may be remarked, that powers simply collateral cannot be destroyed or suspended by any act of the donee." But powers appendant and in gross may, as a general proposition, be released by the donee or owner of the power to one having an estate of freehold in the land, and a total alienation of his estate will extinguish them. Thus, if a tenant for life, with a power to grant leases in posses- sion, conveys away his life estate, the power is gone; for 1 Co. Litt. 113; 2 Prest. Abst. Tit. 275; Roach v. Wadham, 6 East, 289. 2 4 Kent's Cora. 338. 3 .Jackson v. Davenport, 20 .Johns. 537-r).')3. < Sugd. Pow. 88; Story's Eq. Jur., §§ 169-175; Wilkinson v. Getty, 13 Iowa, 159. » Ihid. « Tucker v. Tucker, 1 Seld. 410; Brewster v. Strikers, 2 Comst. 20. 7 Digge's Case, 1 Rep. 173, a; Co. Litt. 237, a, 265, b; Sugd. Pow. 50, 67; Willis v. Shorral, 1 Atk. 474. AUT. XII. COVENANTS FOR TITLE. 131 the exercise of it vvould be derogatory to his own grant. ^ But if the duty of the donee requires him to exercise a power at any future time, lie cannot, in general, extinguish it by a release.^ The suspension of a })owercan only occur in cases of powers appendant, and will happen where the exercise of the power would be in derogation of some pre- vious estate or interest created under the power. This is illustrated in the case of a tenant for life, with a power of appointment and revocation, where, instead of conveying his whole estate, he demised the land for ninety-nine years, if he should live so long, to secure an annuity; in which case it was held that the power was suspended : he could not, by afterwards executing the power, defeat this demise, it having been made for a good consideration.^ ARTICLE XII. COVENANTS FOR TITLE. SECTION. 160. Covenant defined — construction. 161. Express and implied covenants. 162. Real and personal covenants distinguished. 163. The covenants usually contained in deeds. 164. The covenants of seizin and right to convey. 165. The covenant of seizin is broken, when. 166. The covenant against incumbrances. 167. What constitutes a breach of covenant against incumbrances. 168. The covenant of warranty. 169. Estoppel by warranty. 170. What constitutes a breach of the covenant of warranty. 171. Special warranty. 1 Tud. Lead. Cas. 294; Doug. 292; 4 Kent's Com. 347; Burt, on Real Prop., § 180; 2 Washb. on Real prop., 4th ed., 309. 2 Williams on Real Prop. 290; Cruise Real Prop., ch. XIX; 4 Kent's Com. 346. 3 Bringloe v. Goodson, 4 Bing. New Cas. 734; Goodright v. Cator, 1 Doug. 477. 132 CONVEYANCING. CH. II. 17".'. The covenant for further assurance. 17;{. Implied covenants. 174. Of dependant and independant covenants. 17r>. The measure of damages recoverable for breach of covenant of seizin. 17ii. Damages recoverable fur breach of covenant against incum- brances. 177. Damages for breach of covenant of .warrant}-. § 1()0, Covenant Defined — Construction. — A covenant is defined to be, " an agreement between two or more per- sons entered into in writing under seal, b}^ which either party stipuhites for the truth of certain facts, or promises to perform or give something to the other, or to abstain from the performance of certain things."^ No particular form of words is necessary to create a covenant. Wliat- ever shows the intention of the parties to bind themselves to the performance of a stipulation may be deemed a cov- enant, without regard to the form of expression;^ and that construction is to be preferred which renders the whole oper- ative.-^ But where a g-rantor in a deed covenants " for his heirs, executors and administrators," such covenant cannot, by construction, be made to apply to him; and no recovery can be had against him in a court of law. It charges his estate only in the hands of his legal reprcsntatives.* It may be observed, that the covenants for title in a deed con- stitute no part of the conve3^ance, but are separate contracts: the title passes independently of them.'' ' Bouv. L. Die. Covenant. 2Trutt V. Spotts, 87 Pa. St. 339; Taylor v. Preston, 7 Conn. 4ii7; Fitzhugli v. Crogham, 2 J. J. Marsh. 429, 438; Slater v. Rawson. 1 Mete. 4.')0; Catlin v. Hurlhiirt, 3 Vt. 403; Mor- rison V. Underwood. 20 X. H. 309; Kincaid v. Brittain, ."> Sneed, 119; Swasey v. Brooks, 30 Vt. (592; Hamilton v. Wilson, 4 Johns. 72; Doiinell V. Thoiiijjson, 10 Me. 170; ]\rott v. Palmer, 1 Conist. 073; Wilson v. Cochran, 4G Pa. St, 229; Salmon v. Vallejo, 41 Cal.481 ; Dale v. Shively, 8 Kan. 27(5; Brady v. Spurok, 27 111.478; King v. Gilson, 32 111.348; Baker v. Hunt, 40 111. 2G."3: Richard v. Bent. .•)9 111. 43. The latter case was erroneously cited by that usually acmirate writer. Mr. Washbvirn, in his treatise on Real Property, as establishing the doctrine that the cove- nant of seizin runs with the land, (See 3 Washb. Real Prop., 4th ed., C50.) Though expressly deciding that the covenant against incum- brances does run with the laud, and may be sued on by an assignee, it reaflirms the doctrine of the earlier cases as to covenants of seizin. And see Schotield v. Iowa Homestead Co., 32 Iowa, 317. 3 Dickson v. Desire, 23 Mo. 151. The court in this case discusses the general (juestion as to simple covenants of seizin, and. it would seen», arrive at the same conclusion as the; Oiiio courts, that tlie covenants run with the land. See Garfield v. Williams, 2 Vt. 327; Abbott v. Allen, 14 Johns. 218. M Kent's Com. 471 ; Smith Lead. Cas., .'ith Am.ed., 159; Walker Am. Law, 382; 3 Washb. on Real Prop. 050; Foote v. Burret, 10 Ohio, 332; Dickey v. Weston. 01 X. H. 23. And see Seculer v. Fox, 51 Mich. 92. ART. XII. COVENANTS FOR TITLE. 137 at the time of making the deed, is sufficient to make good the covenant of seizin. In other words, whether a subse- quent eviction by one having a better title will give the cov- enantee a remedy upon the covenant. As will be seen, this involves the question, whether the covenant is one«n presenti or runs with the land, in reference to which there has been much controversy. If it is limited to the mere fact of pos- session under claim of right, then such possession will sup- port it; but if construed to be a covenant for the title, a subsequent eviction by one having a paramount title would constitute a breach. In Massachuseets, it was held that, to sustain a covenant of seizin and right to convey, which are synonymous, it was not necessary that the covenantor should be seized of an indefeasible title, but that a seizin in fact was sufficient, whether he gained it by his own act of dis- seizin or was in under a prior disseizor.^ The courts of New Hampshire,'^ Vermont"' (seemingly from the wording of the statute),* Connecticut,^ Iowa'' and Tennessee,^ dissent from this doctrine, and give to the covenant of seizin almost the same effect as a covenant of warranty possesses. But a majority of the States seem to follow the Massachusetts rule, or at least a modification of it.^ All of the cases agree that where a grantor covenants to convev an indefeas- ible estate possession alone will not be sufficient, but it is regarded as a real covenant for title,^ and runs with the 1 Marston v. Hobbs, 2 Mass. 433; Kaymond V.Raymond, 10 Cush. 134. And see Slater v. Rawson, 1 Mete. 450. - Tarker v. Brown, 15 N. H. 187; Partridge v. Hatch, 18 N. H. 498. 3 Richardson v. Dorr, 5 Vt. 19; Mills v. Catlin, 22 Vt. 106. * Catlin V. Hurlburt, 3 Vt. 403. * Gilbert v. Bulkley, 5 Conn. 262; Lockwood v. Sturtevant, 6 Conn. 374. ^ Brandt v. Foster, 5 Iowa, 295. ^ Kincaid v. Brittain. 5 Sneed, 119. s Wilson V. Widenham, 51 Me. 566; Devore v. Sunderland, 17 Ohio, 52; Montgomery v. Reed, 69 Me. 510. And see cases cited supra, § 164; Ravvle on Cov., 4th ed., 76; 3 Washb. on Real Prop. 655; Westrope v. Chambers, 51 Tex. 187. » Prescott V. Trueman, 4 Mass. 631 ; Pierce v. Johnson, 4 Vt. 247; Col- lier V. Gamble, 10 Mo. 472; Smith v. Strong, 14 Pick. 132. 138 CONVEYANCING. CH. II. land.^ It lias been held by sonic courts thut the mere existence of a pariiniount title whether asserted or not will amount to a breach of this covenant; though the cov- enantee can recover only nominal damages until there has been a hostile assertion of the paramount title.- 15ut other courts have held that, where possession is given under the deed, a covenant of seizin is not broken until eviction.-^ The covenant of seizin is also broken by the existence of an outstanding estate,* a material deficiency in the amount of land,'' non-existence of the land described,^ the existence of buildings, fences or other fixtures on the premises belong- ing to other persons who have a right to remove them,'' con- current seizin in another as tenant in common,- or adverse possession of a part by a stranger.' But it has been held that the existence of an easement or incumbrance upon the land, like a highway ,^*^ or a right of dower, or a mortgage, or an equitable lien, is not a breach of the covenant of seizin if possession has not been taken under such mortgage.'^ 1 Ibid. Maguire v. Riggau, 44 Mo. 512. 2 King V. Gilson, 32 111.356. If a grantee fail to take possession of unoccupied premises conveyed by his deed, or having taken possession abandons tliem, he can recover of his grantor nominal damages only for breach of his covenant of seizin, unless there was a hostile assertion of a paramount title. Oockrell v. Proctor, G5 Mo. 41. 3 Great Western Stock Co. v. Saas, 24 Oliio St. 542; Scott v. Tiviss, 4 Neb. 133. < Coinstock v. Comstock, 23 Conn. 352; Mills v. Catlin, 22 Vt. 98. «ButseeManuv.Pierson,2 Johns. 37; Pringle v.Witten,! Barry, 326; Kincaid v. Brittain, 5 Sneed, 123. e AVheelock v. Thayer, 16 Pick. 68, 76; Bacon v. Lincoln, 4 Cush. 210; Basford v. Pearson, 9 Allen, 389. "' Mott v. Palmer, 1 Comst. 564, 572; West v. Stewart, 7 Pa. St. 122; Powers V. Dcnnison. 30 Vt. 752; Van Wagner v. Van Noslrand, 19 Iowa, 427; Burke v. Nichols, 2 Keyes, 671. « Downer v. Smith, 38 Vt. 468. 9 Wilson V. Forbes, 2 Dev. (Law) 35; Mott v. Palmer, 1 Comst. 564; Brandt v. Foster, 5 Iowa, 295; Wheeler v. Hatch, 12 Me. 389. 1" Vaughn v. Stuzaker, 16 Ind. 338; Whitebeck v. Cook, 15 Johns. 483. Though it would be of a covenant against incumbrances. Kellogg v. Maliu, 50 Mo. 496; Tuite v. Miller, 10 Ohio, 383. " Rawle on Gov., 4th ed., 80; Keasoner v. Edmondson, 5 Ind. 393; Sedgwick v. llollcnbeck 7 Johns. 376; Stanard v. Elridge,16 Johns. 254; Fitzhugh V. Croghan. 2 .F. J. Marsh. 432. ART. XII. COVENANTS FOIi TITLE. 139 And if the premises, when granted, are in the possession of another as tenant of the grantor, which was known to the grantee at the time the deed was made, such possession is not a breach of the covenants in the orrantor's deed. The tenant becomes the tenant of the grantee, and the posses- sion of the tenant his possession.^ § 166. The Covenant against Incumbrances is one which has for its object security against those rights to, or inter- ests in, the land granted, which may subsist in third persons, to tlie diminution of the value of the estate, thouijh consist- ently with the passing of the fee by the deed of convey- ance.^ It does not, as a general rule, run with the land, for if there be an incumbrance the covenant is broken as soon as made.^ But incumbrances are so various in their descrip- tion and character, that the same rule cannot be applied to all. Some are existing incumbrances when the deed is 1 Liudley v. Dakin, i:^ Ind. 388. '^ Preseott V. Trueman, 4 Mass. 629; Carey v. Daniels, 8 Mete. 482; 2 Greeul. on Ev., § 242; Chapman v. Kimball, 7 Xeb. 399. A vendor of land who conveys by deed containing a covenant against incumbrances, and takes the notes of the purchaser secured by deed of trust on the property for the unpaid purchase-money, is bound to protect the pur- chaser against any incumbrances that were on the land when he con- veyed, before he can properly demand payment of the notes given for the purchase-money. Coffman v. Scoville, 86 111. 300. 3 Clark V. Swift, 3 Mete. 392 ; Cathcart v. Bowman, 5 Pa. St. 317. Without regard to knowledge of the grantee. 2 Greenl. on Ev., § 242. Accordingly, if the covenant be broken in ihe life-time of the covenantee, or one holding the covenant, his executor or administrator must sue upon it, and not his lieirs. Frink v. Bellis, 33 Ind. 135. See Potter v. Taylor, 6 Vt. 676 ; Kichardson v. Dorr, 5 Vt. 9 ; Prescott v. Trueman, 4 Mass. 629 ; Chapel V. Bull, 17 Mass. 220; Garrison v. Sandford, 12 N. J. L. 261; Tufts V. Adams, 8 Pick. 547; Funk v. Voneida, 11 Serg. & K. 109; Stewart v. Drake, 9 N. J. L. 139; Wyman v. Ballard, 12 Mass. 304. But if the covenant merely extends to quiet enjoyment against incum- brances, then it is broken only by an entry or expulsion from the prem- ises or some disturbance in the possession. Anderson v. Knox, 20 Ala. 156. This case represents in some measure the English doctrine as to the effect of a covenant against incumbrances, where it is linked, as is always the case in England, with a covenant for quiet enjoyment, and where it is invariably held that a covenant against incumbrances is one operating in fnturo and runs with the land. And see Rawleon Cov.. 4th ed., p. 89. 140 CONVEYANCING. CH. II. made, and actually diminish and detract from the estate at the time. Of this chiss are permanent easements, or an existing right of way over the premises. Others may exist at the time of making the deed, but be inchoate so far as occasioninjr lo:is or damasfe to tlie purchaser is con- cerned; such as a right of dower, or a judgment which the creditor may never enforce. In the first instance, the cov- enant is broken as soon as made, and tiie covenantee may sue and recover the damages which the estate sustains by the existence of such permanent incumbrance. In the other, he can only recover nominal damages until the dower or lien shall be enforced against the estate, or he has paid or satisfied the same.^ In Iowa, though the covenant against incumbrances be in presenti, if a second or third grantor from the covenantee be called upon to discharge it, in order to protect his title, he may sue and recover upon the covenant what he has been required to pay.- In South Carolina, it is also held that, though the covenant may be broken at once upon the making of the deed, it runs with the land.^ So also in Indiana.'* But contra it Missouri.^ In Illinois, although a covenant of seizin is held not to run with the land, a remote grantee of lands may maintain an action in his own name, against the original grantor, on a covenant airainst incumbrances, where the substantial breach of the covenant occurs after the assignment, and the whole actual damages are sustained by the assignee. In the lead- ing case upon this subject, Sheldon, J., says: "Where the covenant of seizin is broken, and there is an entire failure of title, the breach is final and complete, the cove- nant is broken once for all; actual damages, and all the 1 Clark V. Swift, 3 Mete. :{90; Andrews v. Davidson, 17 X. 11. 416; Runnels V. Webber, 59 Me. 488; Russ v. Perry, 49 N. H. 547; Preseott V. Trueman, 4 Mass. 629; Thayer v. Clenienee, 22 Piek. 493; Whitney V. Dinsniore, 6 Cush. 127; Funk v. Creswell, 5 Iowa, 62; Tufts v. Adams, 8 Pit k. .547; Wyman v. Ballard, 12 Mass. 304. 2 Knadler v. Sharp, 36 Iowa, 236. •■'Mcfirady V. Brisbane, 1 Xott. & M. 104. * Martin v. Baker, 5 Blackf. 232; Dehority v. Wright, 101 Ind. 382. •' Blondeau v. Sheridan, 81 Mo. 545. ART. XII. COVENANTS FOR TITLE. 14 L damages that can result from the breach have accrued ; the measure of damages is the purchase-money and interest, which are at once recoverable. In such case the right of action is substantial, and its transfer may well be held to come within the rule prohibiting the assignment of chosen in action. But, as the covenant against incumbrances is one of indemnity, the covenantee can recover only nominal damaofes for a breach thereof, unless he can show that he has sustained actual loss or injury thereby, or has had to pay money to remove the incumbrance. And, where there is the barren right of recovery of only nominal damages, the right of action is one only in name, and is essentiall}^ no ri^ht of action. It is distinjiuishable from an ordinarv chose in action.''' ^ And in Ohio it is held that, where pos- session is given under a deed, the covenant against incum- brances runs wath the land, and "if the first grantee conveys to a subsequent grantee, in whose time an out- standing incumbrance is enforced against the land, justice requires that this subsequent grantee should have the ben- efit of the covenant against incumbrances to indemnify himself." - In Massachusetts, it was originally held that the covenant asrainst incumbrances was not assignable and did not run with the land.'' But this is now obviated by statute in that State, giving a right of action, for a breach of this covenant, in some cases "to the grantee, his heirs, executor, administrator, successors or assigns." * The Supreme Court of Nebraska has lately decided that the covenant against incumbrances is a present engagement that the grantor has an unincumbered title, and is not in the nature of a cov- enant of indemnity.^ And the prevailing doctrine in this 1 Richard v. Beiit, 59 111. 43. 2 Foote V. Biiruet, 10 Ohio, 332. 3 Whitney v. Diusmore, Cash. 124; Tufts v. Adams, 8 Pick. 547; Thayer v. Cleineuoe, 22 Pick. 490. * Gen. Stat., Chap. 89, § 17. 5 The statute of limitations, therefore, commenced to run at once if no incumbrance existed at the time of the conveyance. Chapman v. Kim- ball, 7 Neb. 399. 142 CONVEYANCING. ClI. II. country, as to existing iti(iiiiil)r;inces, seems to be that the covenant will not run with tlie land to subsequent owners so as to entitle them to sue for a breach thereof.^ § 107. The Covoiiaiit Ay:aiiist Iiicuiiibraiices is Broken by the existence of a right of dowci-,'- thouirh inchoate only,^ by an outstandirif^ mortga<((% or deed of trust in the nature of a moi-tgafje/ otlier than one which the cov- enantee is bound to pay,-'' by an outstanding life es- tate or term of years,*" or an outstanding ])aramount title. "^ So an existins: lieu for taxes, '^ or of a ludjj- 1 Rawle on Cov. 90. 2 Scribncr OH Dower, 4; Jones V. Gardner. 10 Johns. 2G7; Bij^elow v. Hubbard, 'J7 JVIas^s. 19.">; Runnels v. Webber, 5'J Me. 488; Walker v. Deaver, 79 Mo. 6G4. 3 Porter v. Noyes, 2 Me. 22; Jenks v. Ward, 4 Mete. 412; Fletcher v. State Bank. 37 N. II. 397; Shearer v. Ranger, 22 Pick. 447; Russ v. Perry, 49 N. H. 5.^0; Henderson v. Henderson, 13 ]Mo. ir)2. There is a dictum of Mr. Justice Story, in Powell v. Monson Manufacturing Co., 3 Mason, 3.5"), niaintainining a different doctrine, which was cited approv- ingly by the court in Bostwick v. Williams, 36 111. 69. But ''this has been considered by courts in subsequent cases, with the respect and attention due to the dicta even of so eminent a jurist, but the opposite conclusion is now so firmly established that it can no longer be consid- ered an open question." Russ v. Perry, 49 N. IT. r)r)0; Gazley v. Price, 16 .Johns. 208. * Bean v. Mayo, 5 Me. 94; Brooks v. Moody, 25 Ark. 452. But not so as to an adverse equitable claim to land. Marple v. Scott, 41 111. 50. 5 Kinnear v. Lowell, 34 Me. 299; Estabrook v. Smith, Gray, 572; Freeman v. Foster, .% Me. 508. 8 Grice v. Scarborough, 2 Speers (S. C), 649; Van W^agner v. Van Nostrand, 19 Iowa, 422;Rawle on Gov., 4th ed.,98; Fritz v. Pusey, 31 Minn. 368. 7 Prescott V. Trueman, 4 Mass. 627. » Hill V. Bacon, 110 Mass. .388: Richard v. Bent, 59 111. 38; Long v. Moler, 5 Ohio St. 271 ; Mitchell v. Pillsbury, 5 Wis. 407. And see Che- ney V. City Nat. Bank, 77 111. 562. In Connecticut, taxes are not a lien upon the land of a party taxed where he has other estate that can be found sufficient to pay the tax. Briggsv. Morse, 42 Conn. 258. Query, whether taxes assessed after a conveyance, but on a list existing at the time thereof, constitute an incumbrance. Pierce v. Brew, 43 Vt. 292. SeeRundell v. Lakey, 40 N. Y. 513; Blossom v. Van Court, 34 Mo. 394. Held, not to constitute an incumbrance. Hutchins v. Moody, 30 Vt. 6.56. And see Barlow v. Nicholas Nat. Bank, 63 N. Y. 399. The right of the government to hold land for non-payment of taxes which have been assessed upon them is an incumbrance, within a covenant against ART. XII. COVENANTS FOR TITLE. 143 ment,' or any ciiargo constituting a lien upon the es- tate and enforceable against it, would be a breach of the covenant.^ Conditions, the non-performance of which by the irrantee, may work a forfeiture of the estate,'^ or covenants which run with the land creating a charge thereon, arc also incumbrances.* A party wall has been held to be in no just sense a legal incum- brance.*^ But the existence of a party wall, wholly on one of two contiguous lots of land, 3'et subject to right of en- joyment by the owner of the other, is a breach of the cov- enant against incumbrance.*' So is the existence of a pri- vate right of way," or a right of way for a railroad, al- incumbrances, notwithstandino^ there is also a personal liability of the covenantor for the taxes. Cochran v. Guild, 106 Mass. 29. Held not broken by the fact that a portion of the land had been illegally sold for taxes. Cummings v. Holt, ."16 Yt. 384. 1 A judgment constituting a lien on land, which was outstanding at the time of sale of the land by covenantor, and which was enforced after sale to covenantee, by a legal conveyance of the land under it, is an incumbrance within the scope of the covenant against them. Jenkins V. Hopkins, 8 Pick. 346; Smith v. McCampbell, 1 Blackf. 100. So held, also, in a case where the grantee satisfied the judgment with- out waiting until he was evicted. Hall v. Dean, 13 Johns. 105. And see Holman v. Creagmiles, 14 Ind. 177. - See Holman v. Creagmiles, 14 Ind. 177. So, an attachment upon land. Kelsey v. Remer, 43 Conn. 129. 3 Jenks V. Ward. 4 Mete. 412. But in Estabrook v. Smith, 6 Gray, .572, an outstanding condition which may defeat the title to the estate granted is not deemed an incumbrance within the meaning of the covenant against incumbrances. •* In Kellogg V. Robinson, 6 Vt. 276, a covenant to maintain a divis- ion fence along the entire line between the granted premises and lands adjoining them, was held to be an incumbrance. And see Bron- son V. Cofl3n, 108Mass. 175, 187; Burbank V. Pillsbury, 48 N. H. 475. But it seems that a clause in the grantor's deed, that the grantee, his heirs and assigns, shall maintain a fence along the line of the granted land, is a personal obligation alone, and not an incumbrance binding the estate. Parish v. Whitney, 3 Gray, 516; Plymouth v. Carver, 16 Pick. 183. 5 Hendricks v. Stark, 37 N. Y. 106; Musgrave v. Sherwood, 54 How. Pr. 338. SMohr V. Parmalee, 43 N. Y. Superior Ct. 320. See Giles v. Dugro, 1 Duer (N. Y.),331. Contra, Bertram v. Curtis, 31 Iowa, 46. 7 Wilson V. Cochrane, 46 Pa. St. 232; Butler v. Gale, 27 Vt. 739. 144 CONVEYANCIISG. CII. II. though the grantee has full knowledge of the ineuinbrance at the time lie accepted the covenant.^ And a pre-existing right to pass over the land to take water from a spring in it,- a right to cut and maintain a drain,'' or other artificial water-course,"* iiave all been held to Ix- incumbrances within the covenant.'^' In Prescott v. Tniemanf' it was laid down somewhat broadly that a breach of the covenant against incumbrances will be caused by the existence of any easement or servi- tude whatever, to which the land is subject, liut m some of the States, a public highways in use is not deemed an in- cumbrance. It is argued that "purchasers of property, obviously and notoriously subjected at the time to some right of easement affecting its })hysical conditions, take it subject to that right, without any express exceptions in the conveyance;"" though the courts of several of the States hold that a right of way for a railroad is an incumbrance for which a covenantee may recover, although cognizant of its existence when he took the deed.** And in Maine, Mas- ' Barlow v. McKiiiley, 24 Iowa, GO; Beach v. :SIiller,r)l 111. 207. ^ Harlow V. Thomas, 15 Pick. OS; Mitchell v. Warner, ."j Couu. 497. 3 Smith V. Sprf.gue, 40 Vt.' 43. < i'rescott V. White, 21 Pick. 841. ■'•Butler V. Gale, 27 Vt. 739; Harlow v. Thomas, IT) Pick. 68; Will- iamson V.Hall, 02 Mo. 405; Beach v. Miller, 51 111. 2015. A contrary doctrine has recently been held in Georgia, and to the effect that the existence of a public road, which was known to the vendee at the time of the purchase, does not constitute a breach of the covenant. Des- vergers v. Willis, 5G Ga. 515. e 4 Mass. 630. 7 Kutzv. McCune, 22 Wis. 628. A purchaser of land, subject to an ease- ment, will be presumed to have been willing to take the property subject to the burden as it was at the time of the purchase, when the easeni'jnt is open, visible and of a continuous character. Such an easement, there- fore, is not embraced in a covenant of special warranty. Janes v. Jenkins, 34Md.l; Scribner v. Holmes, 16 Ind. 142 (overruled in Burk v. Hill. 48 Ind.52); Desvergcrs v. Willis, 56 Ga. 515. « Van Wagner v. Van Nostrand, 19 Iowa, 422; Barlow v. McKinley, 24 Iowa, 60; Beach v. Miller. 51 111. l>()(;; Kellogg v. Malin, 50 Mo. .500; s. c, 62 Mo. 429; Williamson v. Hall, 62 Mo. 405; Kellogg v. IngersoU, 2 Mass. 97;Prescott v.Trueman, 4Mass. 627. See Harlow v. Thomas, 15 Pick. 66;Haynesv. Young, 36 Me. 557; Lamb v.Danforth, 59 Me. 322; Giles AKT. XII. COVENANTS FOR TITLE. 145 sachusctts, New II;mi|)sliirc niid ( 'oiiiicct icul a piihl'K- liiifli- way is an incumhraiici', and con.stitnU's a breach of the covenants in a deed of the hind over which it exists.' In Pennsylvania, the courts held a liighway across the granted premises, which liad. existed tiiirty years, not to constitute an incumbrance, but that a i)rivate way would be an incum- brance.'^ In New York, the court intimated in the case of WIntheck w . Coo/i;,'' that a public road was not an incum- brance. But this was only a dictum, and did not involve the decision of the case. In Indiana, it was original!}' held that a highway in actual use was not an incumbrance within the meaning of the covenant;^ but the court, in a later case, after citing all the authorities on the subject, distinctly over- rule what they term was an obiter dictum in the early case, and hold that a public street or road is an incumbrance.'* The weight of authority and tendency of decisions seem to be in favor of the pro})osition that an existing public highway (whether used for railroad or otherwise) does con- stitute an incumbrance within the meaning of the covenant against incumbrances,'* and that the fact of the incumbrance *&" V. Dugio. I J)Her, 331; Hubbard v. Norton, 10 Conn. 431; Burke v. Hill, •48Ind. .52. 1 Haynes v. Young, 36 Me. 501 ; Kellogg v. lugersoU, 2 Mass. 101 ; l^richard v. Atkinson, 3 X. H. 335; Hubbard v. Norton, 10 Conn. 431. -' Patterson v. Arthurs, 9 Watts, 152 ; Wilson v. Cochran, 46 Pa. St. 232. See Rawles on Cov., 4th ed., 100, and cases cited. 3 15 Johns. 483. 4 Scribner v. Holmes, 16 Ind. 142. 5 Burke v. Hill, 48 Ind 52. 6 Burke v. Hill, 48 Ind. 58; Purcell v. Hannibal, etc. K. K. Co.,50 Mo. 504. "Was this right of way, then, an incumbrance upon the land? We think it was. It is true the authorities on this question are not harmo- nious, but we think the current holds such an easement to be an incum- brance, and that thej are supported by the better reason." Beach v. Miller, 51 111. 206; Barlow v. McKinley, 24 Iowa, 69; Kellogg v. Malin, .50 Mo. 496. "But whatever weight may be due to these decisions (Pennsylvania and New York), it cannot be denied that the current of authority basset strongly the other way, and th*- riding in Kellogg v. Ingersoll, 2 Mass. 101, has been sustained in nearly all the New Kngland States, and it appears to be definitely settled there, that a public bigh- (10) 146 CONVEYANCING. CH. II. beinp: known to the grantee will be no bar to Iiis recovery on the covenant.^ Accordingly, in drawing conveyances, where there are known incumbrances of any kind, subject to which the purchaser agrees to take the ))roperty, these should be specially and expressly excepted from the cov- enants. § 1(58. The Covenant of Waminty. — The; ancient En- glish warranty was a eonvenant real, by which the grantor of an estate of freehold and his heirs were; bound to warrant the title; and either upon voucher or by judgment in a writ of icarrantia chartce, to yield other lands to the value of those from which there had been an eviction by paramount title.''^ But warranty in its original form, it is presumed, has never been known in the United States.-' The more plain and pliable form of a covenant has been adopted in its place; and this covenant, like all other covenants, has always been held to sound in damages, which, after judgment, may be recovered out of the personal or real estate, as in other cases.* The covenant of warranty in use in this country is an assurance, by the grantor of an estate, that the grantee shall enjoy the same without interruption, by virtue of par- way does constitute, at law, a breach of this covenant.'* Kawle on Covenants, 4th ed., 104. But see Jordan v. Eve. :5 Va. L. J. 290. Liabil- ity to assessments for the oi)eiung of a street held a breach of the cove- nant in deed executed after the street was opened, though before assess- ment made. Fagan v. Cadmus, 46 N. J. L. 441 ; Cadmus v. Fagan, 47 N. J. L. 549. 1 Butler V. Gale, 27 Vt. 7:59; Harlow v. Thomas, l."i Pick. (kS; William- son V. llall, 62 Mo. 40."); Beach v. Miller, 51 111. 200. The fact that both parties to a conveyance of a tract of land with a covenant against in- cumbrances have full knowledge of the existence of a valid oustanding incumbrance upon the land conveyed, is no reason, in the absence of fraud or mistake in i:)rocuriug the covenant, why the purchaser and cov- enantee is not entitled to recover on the covenant. Gragg v. Wagner, 71 N. C. 216. 2Co. Litt. 365,a. 3 The ancient common-law warranty has been superseded by persona, covenants, and never had any practical existence in this country. Jones V. Franklin, :W Ark. 0;5]. ^ 4 Kent's Com. 400. See Paxon v. Lefferls, :{ Kawle (Pa.),07, u; Jourdan v. Jourdan, 9 Serg. & R. 268; Bates v. Norcross, 17 Pick. 14; I'iatt V. Oliver, 3 McLean, 27; Foote v. Burnet, 10 Ohio, 322, note. ART. XII, COVENANTS FOR TITLE. 147 amount title' It is the broadest and most effective cov- enant contained in American deeds, and, in several States is the only one in general use. It is a real covenant, and runs with the land into the hands of whoever becomes the owner thereof .2 ]5nt when onc^ broken, it stands upon the same ground as the covenants which are broken as soon as made.'' It is to be remembered, however, that the covenant of war- ranty is, in most respects, the same as a covenant for quiet enjoyment,* and can be broken only by something tanta- mount to an eviction.^ § 169. Estoppel by Covenant of Warranty. — The cov- enant of warrantv is not only a covenant of indemnity for the loss of land, but of ten operates to create title by way of estoppel, by preventing the setting up of an otherwise good title." As where one, having a title to land, conveys it with a covenant of general warranty, and afterwards acquires a title to the same, he is estop])ed to claim the land, and this extends to his second grantee in favor of the covenantee." 1 Rindskopf v. Farmer's Loan Co., 58 Barb. 36; Moore v. Lanham, 3 Hill (S. C), 304. - 3 Washb. ou Real Prop., 4th ed. 660; Leary v. Durham, 4 Ga. 593; Dickinson v. Hoomes, 8 Gratt. 353; Claycomb v. Munger, 51 111. 373; Chandler v. Brown. 5t) N. H. 370. - 3 Wilson V. Cochran, 46 Pa. St. 229. ^ 4 Kent's Com. 472; 3 Washb. on Real Prop., 4th ed., 661; Caldwell v. Kirkpatriek. 6 Ala. 60; Townsend v. Morris, 6 Co wen, 126; Fowler v. Poling, 2 Barb. 300; Emerson v. Proprietors, 1 Mass. 466; Athens v. Nale, 25 111.198; Bostwick v. Williams, 36 111.70; Rea v. Minkler, 5 Lans. (N. Y.) 96; Scott v. Kirkendall, 88 111. 465. A covenant of war- ranty in a deed is more than a covenant for quiet enjoyment. It is an undertakmg to defend, not merely the possession, but the laud and the estate in it. AVilliams v. Wetherbee, 1 Aik. (Vt.) 233. 5 Infra, § 170. '' Provided by statute in several States that every deed with general war- ranty and purporting to convey the fee-simple, is conclusive as against the grantor, his heirs and assigns. Stimson's Amer. Stat., § 1454. " Walker's Amer. Law, 383; Jackson v. Stevens, 13 Johns. 316; Terrett v. Taylor, 9 Cranch, .53; Middlebury College v. Cheney, 1 Vt. 336; Burton v. Reeds, 20 lnd.87; Kniglit v. Thayer, 125 Mass. 25; Jackson v. Murray, 12 Johns. 201 : Somes v. Skinner, 3 Pick. 52; White v. Patten, 24 Pick. 324; Allen v. Sayward, 5 Me. 231. In King v. Gilson. 32 111. 353, the court, in commenting upon the effect of the covenant of war- 148 CONVEYANCINC. CIl . 11. The effect is, that the litlc ;i((iiiir(Ml l)^■ the "-raiitoi' who has conveyed with wnri'anlv iiiiii-cs. ro ///.sVr///// thai he jjains the tith^, to his grantee, and vests in him, or ihc grantee of such grantee, if with like covenants.^ And, in some cases, an heir is rebutted fioni claiming, hy anothei- and better title, the land which his ancestor had conveyed with war- ranty, if the heii- has received assets from his ancestor, the covenantor, sufficient to make good the warrantv.'- § 170. What Constitutes a lireacli of the Covenantor Warranty. — It has been said that, to authorize a recovery upon the covenant of warranty or quiet enjoyment , there must be an eviction,-' the technical meaning of which is dis- possession by judgment of law. But by the weight of authority, and upon princi|)le, nothing more is necessary to sustain an action than an ouster by title paramount, or law- runty in creating estates, remarks: "Whether the effect is produced by tlic Avay of estoppel, by remitter, or by operation of the Statute of Uses, has been a matter of much discussion." A covenant in a deed that the grantor will warrant tlie land against all persons claiming under him, does not estop him fiom setting up a title subsequently acquired by him by purchase or otiierwise. Comstock v. Smith, 1:5 Pick. IKi; Jackson v. Winslow, !i Cowen, 1:5. A warranty deed, executi'd by a married woman, in accordance with the power conferred upon her by the Gen. Stats., ch. 108, § 3, of laud in which a third person has life estate at the time, Avho afterwards conveys it to tlie grantor, is binding by way of estoppel ni)on her and her suhsetiuent grantees to the same extent as if she was unmarried. Knight v. Thayer, 125 Mass. 25 ' Knowles v. Kennedy, 82 Pa. St. 445; Crocker v. Pierce, 81 Me. 177, 182. But the rule that one who is bound by a general warranty canimt set up an after-acquired title, applies where the warranty is full, as against the warrantor, although it limits the persons against whose claims he warrants, as where he covenants against claims of himself and his heirs. Taggart v. Risley, 3 Oreg. 30o. 2 Cole V. Raymond, 9 Gray, 217; Bates v. Norcross, 17 Pick, 14, 21 ; Jones V. Franklin, 30 Ark. 631 . When a father, having a life estate only, makes a deed in fee-simple for land, with warranty, his heirs, with or without assets, is rebutted Ity the warranty, except in cases Avhere the rule of the common law is changed by statute, or where the heir can connect himself with the outstanding remainder or revision. Souther- land V. Stout, 08 X. C. 44(5. ■'Stewart V.Drake, 9 X. .J. J.. 131; Norton v. Jackson, .') Cal. 262; Hannah v. Henderson, 4 Ind. 174. ART. XII. COVENANTS FOR TITLE. 14'J ful disturbjince.' Thus, if one luivin;j; ii lufral cluiiii seeks to enforce it by expelling the tenant in possession, it is not necessary for him to wait for u judgment and actual eviction by ))roeess of law. He may yield i)ossession to the one who has his paramount title, and claim foi- a breach of the cove- nant.- So, in ease of an incumbrance consisting in a mortgage, the entry of the mortgagee in [)resence of witnesses for breach of condition, and for the purpose of foreclosure, was held a breach of this covenant,^ x'^nd such disturbances are also expressed in popular language, which is recognized by the 1 Kellogg V. Piatt, 33 X. J. L. 328, authorities reviewed; McGary v. Hastiugs, 39 Cal. 300; Gleun v. Thistle, 23 Miss. 42; Montgomery v. Reed, 6!) "Sle. TilO; Marbury v. Thornton (Va.), 1 S. E. Rep. 909. It has been held in Xew York that an actual eviction is necessary. Rindskopf V. Farmer's Loan Co., 58 Barb. 3G. In Mississippi, iu order to sustain an action on the covenant of general warranty there must be an actual eviction by judicial proce^fs, or a surrender of possession to a valid, subsisting paramount legal title asserted against the covenantee; or there must be a holding of the grantee out of possession by such title, so that he cannot enter. Dyer v. Britton, 53 Miss. 270. And see, to about the same effect, .Tones v. Warner, 81 111. 344. The covenant can only be broken by something equivalent to an eviction or disturbance of the possession of the grantee. The mere existence of a paramount title in another is not of itself sufficient to constitute a breach. Scott v. Kirkendale, 86 111. 4G5. The fact tluit the grantor inadvertently included in the deed a certain tract to which he had no title, is an equitable de- fense to a suit on his covenant of warranty. Stewart v. Hadley, 55 Mo. 235. It is sufficient if the grantee is hindered or prevented from entering and enjoying, the premises granted by one having a better right. Smith v. Scribner (Vt.), 7 Atl. Rep. 711. '■i Hamilton v. Cutts, 4 Mass. 349; Kellogg v. Piatt, 33 N. J. L. 328; Brandt V. Foster, 5 Iowa, 297; Loomis v. Bedel, 11 N. H. 74; Funk v. Creswell, 5 Iowa, 05; Peck v. Heusley, 20 Tex. 073; Clark v. iSIcAnulty, 3 Serg. & R. 372; Estabrook v. Smith, Gray, 572. See Claycomb v. Munger, 51 111. 370; IVIcGary v. Hastings, 39 Gal. 300; Knepper v. Kurtz, 58 Pa. St. 484. The adverse paramount title must be not only superior to the title under which the land was held by him, under such deed, but also superior to the title of any other person. Crance v. Collenbaugh,47 Ind. 250. Neither actual eviction nor its equivalent are necessarv to the recovery of nominal damages for a breach. Mason v. Cooksey, 51 Ind. 519. 3 White V. Whitney, 3 Mete. 81, 89; Tufts v. Adams, 8 Pick. 547; Fur- nas v. Durgin, 119 Mass. 500; Smith v. Dixon, 27 Ohio St. 471. In Sprague v. Baker, 17 Mass. 680, the tenant yielded to the claim of a prior mortgagee without 15U CONVEYANCING. CH. II. courts, by Iho term eviction. So, a purchaser may be evicted, although Ije continues in possession, if under a dif- ferent title; as if he should subsequently hold under the true ()\\ iH'i', citluM hy iidicritance or otherwise.' But if the grantee purchases an outstanding title, or yields to an ad- verse clainumt without standing suit or being sued (unless, in case of a suit, he give notice to his grantor of the suit, so that he may defend it ),2 the burden of proof is upon such grantee to show that the adverse title was good,'* and that the possession was surrendered only after claim or demand thereof.^ The grantee has no recourse on the covenant of warranty or quiet enjoyment, whei'e he has paid money to buy off a claim merely to save litiga- tion.-'' The covenant extends to lawful disturbances only, and not to a mere trespass or a pretense of a claim or title which has no legal foundation.'' And if the covenantor ^ Succession of Coxe, 15 La. Ann. r)14; Kcllogf;^ v. Piatt, 38 N. J. L. 328; Hall v. Bray. 51 Mo. 288; McGary v. Hastings, 39 Cal. 3G0. See Mason v. Cooksey, 51 Ind. 519. 2 .Tackson v. Marsh, 5 \yen(L 44. Notice to be effectual, need not be in writing. Miner v. Clark, 15 Wend. 425. ■" Hall V. Bray, 51 Mo. 288; Hamilton v. Cutts, 4 Mass. 349; Claycomb V. Muuger, 51 111. 377; Somers v. Schmidt, 24 Wis. 417; Smith v. Sprague, 40 Vt. 43; Merritt v. Morse, 108 Mass. 27G; Ryerson v. Chap- man, 66 Me. 557. ■» Morgan v. H. & St. .Jo. K. U. Co., 63 Mo. 129. To authorize a suit by the covenantee against the covenantor, for breach of a general war- ranty of title, there must have been some hostile assertion of the para- mount title to which possession was yielded, or which was bnuiglit in. That a suit shall have been instituted is not necessary; but it is essential that the true owner shall have given notice, in some way, of his inten- tion to assert his claim. The covenantee cannot, nuM'ely because he has ascertained tluit some other person holds a title superior to his own, al);iii(inii that possession wiiicli he received from the covenantor, and de- mand a return of his pnrchase-money. It is not sufHcient that he shall be satisticd that the outstanding title is the true one, and, if asserted, cannot l)e resisted; because in point of fact, it may never be asserted, or if asserted in tli(! future liic How of time may have so ripened his pos- session that he can successlully combat it. (Jood faith, tlierefore, to his ve.!..oi, rL( i.iKS that he shall stand his ground until, in some way, he is called upon to surrender, fireen v. Irving, 54 Miss. 450. And see Kan- sas Pacific R. R. Co. v. Dunmeyer, 19 Kan. 539. 5 Caldwell v. Bower, 17 Mo. 504. " Gleasou v. Smith, 41 Yt. 296. Xo act of a mere stranger, though ART. XII. COVENANTS FOR TITLE. 151 do the acts, he must, in order to make it a breach of the covenants in his deed, do them under the chiim and asser- tion of right.' Many circumstances have been held to be tantamount to an ouster in some of the States, and denied in others.- Thus, where one made a mortgage with cove- nants of warranty, and then conveyed the same estate ab- sohitely, without notice of the mortgage, and thereby defeated the same, it was held a constructive eviction, and that the mortijasee might maintain an action upon the cove- nant in his deed, and rely upon those facts as tantamount to an eviction.^ So, if the covenantee find another in pos- session under a paramount right when he takes his deed, he may have an action upon his covenant without being obliged to subject himself to the hazard of an action of trespass by first entering upon the premises and being ousted.* Like- wise, satisfaction of a judgment in ])roceedings to enforce the assignment of dower in the land, was held equivalent to under a pretense of a title which is not a valid one, will operate as a breach of this covenant. Brick v. Coster, 4 Watts & S. 499; Kawle on Gov.. 4th ed., 134; Branger v. Manciet, 30 Gal. 624. A covenant of war- ranty "against a'A persons claiming by, through or under the said D.,"' means only such persons as had valid claims, not pretenses without legal foundation and right. Gleason v. Smith, 41 Vt. 293. 1 Sugden on Vendors, 84; Beebe v. Swartwout, S 111. 181; Bostwiclvv. Williams, 30 111. 70; O'Keefe v. Kennedy, 3 Gush. 325. And see Mayor of New York v. Mabie, 3 Kernau, 151. - See cases pro and con. cited in note to Foote v. Burnett, 10 Ohio, 317; ]\Ioore V. Vail, 17 111. 185; Reese v. McQuilkin, 7 Ind. 450; Gihnau v. llaveu, 11 Gush. 330; Pickett v. Pickett, 6 Ohio St. 525. 3 Funk V. Greswell, 5 Iowa, 66; Gurtis v. Deering, 12 Me. 499. ^ Moore v. Vail, 17 111.185; Glark v. Gonroe, 38 Vt. 4G9; Grest v. Hodges, 3 Dev. 200; Kawle on Gov., 3d ed., 253, 2.55; Rex v. Greel, 22 W. Va. 373. But contra, as to the covenant for quiet enjoyment, Kortz v. Garpenter, 5 Johns. 120. But if such person is claiming under an inferior title, and is permitted ])y the grantee, and those deriving a title from or through him, to remain undisturbed until his adverse possession ripens into a good title, as against the grantee, the latter, or those claiming under him,' cannot be allowed to recover upon the covenant of warranty for a failure of title, because they have lost their lands, not by title paramount existing at the time of executing the covenant, but by their own laches in suffering an imperfect and inferior claim of title to become a legal title, paramount to theirs. Rindskopf v. Farmers" T.oaq Co., .58 Barb, 36, 152 CONVEYANCING. CIT. II. ;ui (.'vu-lioii lor the [)Lirp05>c of suit on llu' covenants.^ 8u, also, the discharge of an incumbrance subsisting!; at tlic time of the conve3\ance and capable of being enforced.- \i^ is not necessary that the act of eviction should extend to the whole premises granted; it will be a breach of such cove- nant if the covenantee is divested of any part of then). Thus, if a house or fence of another person was standing on land belonjjinij to a grantor, and he sold the land with covenant of warranty, and afterwards the owner of the house or fence removed it, this would constitute a breach of the covenant.^ So, an existing right in another to draw water from the premises by an aqueduct,* or the existence of a public or private way,^ would be a breach of the cov- enant. But it has been held in Pennsylvania that when land is sold with general warranty, the opening of a public highway, by virtue of eminent domain, is not an eviction which will entitle the vendee to maintain an action for breach of the covenant." § 171. Special Warranty. — The covenant thus far con- sidered has been one of general warranty. The covenant may be special, and frequently is limited to certain persons or claims.' Thus, it is quite common to insert in deeds ' Ma< S. C. 405. -' Kemiey v. Norton, 10 Ileisk. (Tenn.) :$84. » West V. Stewart, 7 Pa. St. 122; Funk v. Creswell, .5 Iowa, 88. But it is no breach of a warranty of a lot and tlie buildings tliereon, that apart of the house believed U) be tiiereon is, in fact, on the adjoiiiino lot. Burke v. Nichols, :14 Barb. 430. But a condition in A.'s deed to B. against erecting buildings on a portion of the land, is a breach of cove- nant of warranty in B."s deed to C. Kramer v. Carter, VMi Mass. .">04. ^ Clark V. Conroe, :58 Vt. 40!); Lamb v. Dantorth, 59 Me. :{24; Day v. Adams, 42 Vt. 510. 5 Lamb v. Danforth, .'jOMo.324; Russ v. Steele, 40 Vt. 310; Ilaynes v. Young, 30 Me. .")G1 : Harlow v. Thomas, 15 Pick. 06. Right of way for railroad is not a breach of covenant. Brown v. Young, 0!) Iowa, 625. And held in New York that covenant of warranty is not broken by the existence of a public right of way over a portion of the land. Ilymes v. Esty. 30 Ilun, 147. 6 Peck V. Jones, 70 Pa. St. 83. '' A purchaser of lands at public auction, made by a trustee, can only require a deed from the trustee with special warranty. Fleming v. Holt. 12 W. Va. 143. ART. XII. COVENANTS FOR TITLK. 158 of quitclaim :i covenant against all persons claiming by, through or under the grantor. In this case, the covenant does not estop the grantor from claiming the laud against his grantee, under and by virtue of a title acquired subse- quent to his deed.^ So, the covenants are often limited by the subject-matter of the grant. As where the deed only purports to convey the "right, title and interest of the grantor." Though, in such case, the grantor covenants that he is seized in fee of the premises, that they are free of all incumbrances, and that he will warrant them to the (jrantee against the lawful claims of all persons, the covenants relate only to such interest as the grantor had at the time,^ and will not operate to convey an after-acquired title. ^ This doctrine is based upon the general proposition that the covenants can- not enlarge the premises of the grant.* Thus, where A. conveyed certain premises, "subject to a certain mortgage," therein specified, with covenant of general warranty, and against incumbrances, it was held that these covenants were limited and qualified by the exception, and that the exist- ence of that mortgage was not a breach of the covenant.'' But a respectable minority of the cases impugn the above doctrine, and hold that the thino; w-arranted in such w deed is the land itself, and not simply the right and title of the grantor.*' 1 Jackson V. VVinslow, i) Cow. 13; Comstoek v. Smith, 13 Pick. 110; Allen V. Saywai-tl, 5 Me. 227; Trull v. Eastman, 3 Mete. 124; Western Mining Co. v. Peytona Coal Co., 8 W. Va. 40(5. Rucker v. Street, IT) Fed. Rep. 365. A covenant, though in substance like that above, hdd to be a general warranty under particular circumstances. Kimball v. Blaisdell, ") N. H. 533. It is held in Wisconsin that covenants in a deed, whereby the grantor in terms covenants only ''for his heirs, executors and admin- istrators,'' omitting the words "for himself,'' are yet binding upon him. llilmert v. Christian, 29 Wis. 104. But see contra, § 160. 2 Ballard v. Child, (U Me. 152; Allen v. Holton, 20 Pick. 458; Gee v. Moore, 14 Cal. 474; Kimball v. Semple, 25Cal.452; Blanchard v. Brooks, 12 Pick. 47; Raymond v. Raymond, 10 Cush. 134; Sweet v. Brown, 12 Mete. 175; Hall v. Chaffee, 14 N. H. 215; White v. Brocaw, 14 Ohio St. 344; Adams v. Ross, 30 N. J. L. 510 ; Brown v. Jackson, 3 Wheat. 449. ^ lb.; Butcher v. Rogers, 60 Mo. 138. ■» Lamb v. Wakefield, 1 Sawyer, 251. ^ Freeman v. Foster, 55 Me. 508. <' Brown v. Jackson. 3 Wheat. 449; Funk v. Creswell, 5 Iowa, G6; Hub- 15 4 CONVEYANCING. CH. II. § 172. The Covenant for Further Assurance is one by which the covenantor undertakes to do such reasonable acts, in addition to those already perfoi'med, as may be necessary for the completion of the transfer made, or intended to be made, at the requirement of tht^ covenantee. It relates both to the title of the vendor and to the instrument of con- veyance to the vendee, and operates as well to secure the ])erformance of all acts for suppl3'ing any defect in the former, as to remove all objections to the sufficiency and security of the latter.^ It is a covenant which runs with the land.'- It is resorted to, when inserted, rather as a means of enforcin<^ a specific performance of the fri'Jmtor's agreement to make a good title, than as a ground of a suit at law for its breach. It may be enforced by a l)ill in equity for specific performance, or an action at law to recover damao-es for the breach.'' This covenant is seldom used in this country, § 173. Implied Covenants, as we have previousl}' ob- served, are those which arise by construction of law from the use of certain words and forms of expression, which are held to constitute an agreement, though no express cove- nant or airi'cement is connected with them.* Among the words which by the common law were held to imply cove- nants are, "give," "grant," "demise," and the like. The word "give," when used in a deed of feoffment, implied a covenant of warranty during the life of the grantor."' But when used in deeds derivinof their effect from the Statute of Uses, it does not imply a covenant." The word "grant" or bard v. Apthorp, 3 Cash. 41!); Loomis v. Bedel, 11 X. II. 74; Mills v. Catlin, 22 Vt. 104; Rowe v. Heath, 23 Tex. 614. 1 Lamb V. Burbank, 1 Sawj-er, 227; Piatt on Cov. 341; 3 Waslib. on Real Prop. (107. 2 Coll)y V. Osgood, 29 Barb. 33!». '^ 2 Coke, 3 a; Piatt on Cov. 3.')3. ' For a cont-ise statement of the different statutory provisions as to implied eovenants, see Stimson's Amer. Stat.. §§ 1500-1518. •'■ 2 Bl. Com. 300; Kent v. Welch, 7 Johns. 258; Stearns, Real Act. 123, 126. « Allen V. Sayword, 5 Mm. 230; Bates v. Foster, 5!) Me. 157: KaAvle on Cov,, 468. ART. XI r. COVENANTS FOR TITLE. 155 "demise," in a conveyance for a term of year», implied an absolute covenant for quiet enjoyment during the term, unless qualified by a more limited express covenant.^ By Statutes 8 and 9, Vict. ch. 106, § 5, in England, the words "give" and "grant" no longer imply a covenant in law; but the word "demise" still retains this power; ^ and the word "lease" has been held to be equivalent to "demise" in creating an implied covenant.^ These Avords imply a covenant against a paramount title, and against acts of the landlord which destroy the beneficial enjoyment of the premises.* It extends only to the possession, and a breach arises only from eviction by means of title.-'' In several of the States, it is provided by statute that no covenant is to be implied in any conveyance of real estate. But in New' York, it is held that this statute does not abrogate the common law doctrine of implied covenants as applied to leases for years ; ^ unless the leases are in fee or perpetuity." A lease for years implies, on the part of the lessor, a cove- nant for quiet enjoyment, and on the part of the lessee, a covenant to pa}^ rent.^ In Missouri, it is jirovided by stat- ute that "the words 'grant,' 'bargain,' 'sell,' in all convey- ances in which any estate of inheritance in fee-simple is limited, shall, unless restrained by express terms contained in such convevances, be construed to be the following ex- press covenants on the part of the grantor for himself and his heirs, to the grantee, his heirs and assigns: First, that the grantor was, at the time of the execution of such con- veyance, seized of an indefeasible estate, in fee-simple, in 1 Barton on Keal Prop., § 846. - Williams on Keal Prop., 367. 3Maule V. Ashniead, 20Pa. St. 482; Koss v. Dysart, 33 Pa. St. 452; Hamilton v. Wright, 28 Mo. 200. But see Lovering v. Lovering, 13 X. H. 513; Barney v. Keith, 4 Wend. 502. * Wade V. Halligau, 16 111. 507; Dexter v. Manley, 4 Cush. 24, ' Schviylkill, etc. R. R. v. Schmoele, 57 Pa. St. 273. ^ Lynch v. Onondaga Salt Co., 64 Barb. 558 . ' Carter v. Burr, 39 Barb. 59. 8 Lynch V. Onondaga Salt Co., 64 Barb. 558; Kimpton v. Walker, 9 Vt. 198. But the implied covenant to pay rent passes to the assignee of the lease. Van Rensselaer v. Smith, 27 Barb. 104, 150 CONVEYANCING. CIl. II. llio real otatc tlicreby granted. Second, that such real estate was, at the time of the execution of sucli conveyance, free from incumbrance done or suffered by the grantor, or any person chiiming under iiini. Tliird, for further assur- ances of such real estate, lo t)e nuide by the grantor and ills heiis to Ihe grantee, his heirs and assigns; and may be sued ui)()n in the same nianner as if such cov- enants were expressly inserted in the conveyance."^ Sim- ihir statutes iiaye been enacted in Alabama, Arkansas, Cal- ifornia, Delaware, Illinois, Mississipi)i and Pennsylvania. 1 Rev. Stat. 1879, Vol. 1, § 675. Under this statute the words "bar- gain," "sell," "release," "quitclaim" aud "convey," were held to be words of quitclaim and release merely. Gibson v. Chouteau, 3!) Mo. 536. So the words "bargain," "sell" and quitclaim." Valle v. Clem- ens, IS Mo. JSG. The statutory covenant for further assurance embraces such incumbrances only as the vendor has control of, and not an out- standing mortgage created by the grantor. Armstrong v. Darby, 26 Mo. 517. These statutory covenants are covenants against incumbrances caused by taxes assessed to the owner of the land at the time of sale. Blos- som V. Van Court, 34 Mo. 3'JU. The only covenant implied in the words "grant, bargain aud sell," which runs with the land is that for further assurance. Tlie word assigns, as used in the statute, is limited to that cov- enant. Collier V. Gamble, 10 Mo. 407. But in Alexander v. Schreil)er 13 Mo. 27\. where A. conveyed to B. by deed, containing tlie words "grant, bargain and sell," certain premises which were at the time subject to a mortgage, and B. conveyed the premises to C, it was held that C. there))y acquired all the right of B. in the covenants contained in A."s deed, togetlu'r with a right to su(! upon them in his luune, and tliat he was not affected by any verbal understanding between A. and B., as to the incumbrance, unless the fact of its existence was brought to his knowledge at tlie time of purchase. The covenant of sei/in contained in the words "grant, Ijargain and sell" will not estop the heirs of the grantor from asserting a title not derived from him. They are only liable in damages to the extent of the assets that have descended upon them. Cliauvin v. Wagner, IS Mo. 531. The words "or any person claiming under him," refers to those holding subordinately, and not adversely, to the graiitoi-. notwithstanding such adverse title may have been ac- (piired througii or from the grantor. Clorc v. Graham. 61 Mo. 24!). The possession of a vendee of land need not be under a deed, in order that it may be adverse to his vendor. Ridgeway v. Ilolliday, 59 Mo. 444. The existence of a paramount title, whether asserted or not, is a breach of the eovoiiaiit of seizin spccilically ('X])resscd in the deed, as well as that contained in the words "grant, bargain and sell." Cockrell v. Proc- tor, G5 Mo. 41. ART. XII. COVENANTS FOR TITLE. 157 The ruling of the courts of the different States, as to the extent of the covenants injplied from these words, does not seeni to be uniform. In Pennsylvania, the court held it to be a covenant that the grantor had done no act, and created no incumbrance, whereby the estate granted by him might be defeated.^ And the same doctrine is held in Alabama and Arkansas.- But, in Mississip})i, the words "grant, bar- gain and sell" are held to import covenants of general war- ranty of title and against incumbrances and for quiet en- joyment.^ In Illinois, it is held that the covenants im))lied by those words extend only to incumbrances done or suf- fered by the grantor;* but that after-acquired title would inure to the benefit of a grantee to the same extent as by a full covenant of warranty.'' Words which disclose an in- tention to guarantee or assure a certain quantity of land in the granted premises may imply a covenant that the [)rem- ises contain the quantity mentioned. The question in such cases usually is, whether the reference to quantity is a part of the description of the premises, or whether it is intended as an assurance of the quantity named. In the first in- stance no covenant is implied." But if the quantity be of the essence of the agreement between the parties, it is con- strued as a covenant to the purchaser of the existence of that quantity.'^ So, where land is conveyed as bounded on one side by a way, it may imply a covenant that there is such a way.^ Although a deed contains express covenants, yet other 1 Knepper v. Kurtz, 58 Pa. St. 480. ^Koebuck v. Dupuy, 2 Ala. 538; Wius^ton v. Vaughn, 22 Ark. 72. 3 Bush V. Cooper, 26 Miss. 599. * Prettymau v. Wilkey, 19 111. 235; Hawk v. McCullough, 21 111. 220. 5 D'Wolf V. Hayden, 24 111. 525; Kiug v. Gilsou, 32 111. 353. 6 Wright V. Wright, 34 Ala. 104; Hall v. Mayhe^v, 15 Md. .551; Powell V. Clark, 5 Mass. 355; Perkins v. Webster, 2 N. H. 287. 7 Beall V. Berkhalter, 26 Ga. 564, 567. See Noble v. Googins, 99 Mass. 231. 8 Parker V. Smith, 17 Mass. 413. See Clap v. McXeil, 4 Mass. 589; Livingston v. Mayor, etc., 8 Wend. 85; Emerson v. Wiley, 10 Pick. 310; Case V. Mercer Street, 4 Cow. (N. Y.) 542. 158 CONVEYANCING. OH. 11. covenants iii;iy be iinplitMl. But the hitter can operate only when they are consistent with the former. • And a general covenant will sometimes be limited oi restricted by a spe- cial covenant. In Missouri, where a deed containing the statutory words, recited a nioitgage existing at the time on the property conveyed, and containing* a si)ecial covenant that llie grantor "will warrant and defend the premises against all persons lawfully claiming the same, and against all titles, liens and incumbrances whatever, and i)articularly against the mortgaoje," it was held, that the general cove- nant implied by the words "grant, bargain and sell" was re- strained by the special covenant. ^ § 174. Dependent and Independent Covenants. — Where the jjerformancc of one covenant depends upon the performance of another, the precedent condition must be per- formed, befoio an action can be maintained on the other covenant. Covenants are to be regarded as dependent, ac- cording to the intention of the parties and the good sense of the case; and technical words will give way to such inten- tion.^ Courts will not hold covenants to be independent, so 1 Roebuck v. Dupuy, 2 Ala. 533; Blair v. Hardin, 1 A. K. Marsli. (Ky.) 232; Morris y. Harris, n Gill (Md.),19; Gates v. Caldwell, 7 Mass. 68; Sunnier V. Williams, 8 /(Z. 201; Vauderkarr v. Vanderkarr, 11 Johns. 122; Kent V. Welch, 7 W. 258; Crouch v. Fowle, N. H. 219; Maeder v. Carondelet, 26 Mo. 112. The covenants arising from the words "grant, bargain and sell," in a deed, ai'e not inconsistent with, or restrained by, an express covenant of special warranty. Funk v. Voneida, 11 Serg. & R. (Pa.) 109; Scilzinger v. Weaver, 1 Rawle (Pa.), 377. 2 Shelton v. Pease, 10 Mo. 473. SMcCrelish v. Churchman, 4 Rawle (Pa.), 20; Tileston v. Newell, 13 Mass. 410; Tompkins v. Elliott, 5 Wend. (N. Y.) 49G; Barrusov. Madan, 2 .John*. 145; Dwiggins v. Sliaw.G Ired. (N. C.) L.46; Wright v. Smyth, 4 Watts & S. (Pa.) 527; Adams v. Williams, 2 Id. 227; Brockenbrough v. Ward, 4 Rand. (Va.) 352; .Tohnson v. Reed, 9 Mass. 78; Gardiner v. Corson, 15 Mass, 500; Howland v. Leach, 11 Pick. (Mass.) 154; Bean v. Atwater, 4 Conn. 3; Todd v. Summers, 2 Gratt, (Va.) 167. Whether a covenant is dependent or independent, is to be determined according to the fair intention of the jtartic^s, to be collected from the language em- ployed by tliem. But an intention to make any particular stipulation a condition precedent should be clearly and unambiguously expressed. Bangs v. Lowber, 2 Cliff. 157. And see Robinson v. Ilarboun, 42 Miss. 795. ART. XII. COVENANTS FOR TITLE. 1.^)9 that oiK^ l>ai'ty may refuse and yet enforce performance, unless there is no other way of construing it.^ But where one act is to hi; done by one party before another act, which is the consideration of it, is to be done by the other, the covenants to do those acts arc independent.^ Where the covenants are mutual and independent, either party may re- cover damages from the other for an injury which he may have sustained by the non-performance,-^ without proving a compliance with every stipulation on his part.** § 175. The Measure of Damages Recoverable for a Breach of the Covenant of Seizin is, with few exceptions, the purchase-money and interest.^ The amount actuall}' paid may be ascertained by evidence, and may be shown to be more or less than the sum mentioned in the deed.'' So, the value of a thing given as the consideration may be proved.' If this cannot be shown, the rule of damages will be the ^ Mecuin v. Peoria, ftc. R. R. Co. 21 111. 533. Covenants will be con- strued to be dependent unless a contrary intention clearly appears. Peques v. Mosby, 15 Miss. (7 Smed. & M.) 340; Liddell v. Sims, 17 Id. 59G; Cloptou v. Bolton, 23 Miss. 78. 2 Tilestou V. Xewell, 13 Mass. 406; Couch v.Iugersoll, 2 Pick. (Mass.) 300; Goodwin v. Holbrook, 4 Wend. (N. Y.) 377; Cunningham v. Mor- rell, 10 Johns. 203; Craddock v. Aldridge, 2 Bibb (Ky.), 15; Mullins v. Cabiness, Minor (Ala.), 21; McRaven v. Crisler, 53 Miss. 542. '■^ Cook V. Johnson, 3 Mo. 239. * Morrison V. Galloway, 2 Har. & J. (Md.) 467; Benson v. Hobbs, 4 Har. & J. (Md.) 285; Payne v. Bettisworth, 2 A. K. Marsh. (Ky.) 429; Bean v. Atwater, 4 Conn. 3; Gibson v. Gibson, 15 Mass. 112; Goodwin V. Holbrook, 4 Wend. 377; Manning v. Brown, 10 Me. 49; Obermeyer V. Nichols, 6 Biun. (Pa.) 164. A covenant to pay a certain sum of money, one-half on a certain day, and the other on a certain subse- quent day, at which time the covenantee was to execute and deliver a deed, so far as respects the tirst payment, is independent, but, as to the other, is dependent ; and in an action thereon the tender of a deed must be averred. Biddle v. Coryell, 18 N. J. L. 377. 5 Martin v. Long, 3 Mo. 391 ; Phipps v. Tarpley, 31 Miss. 433; Nutting V. Herbert, 35 N. H. 120; Blake v. Burnham, 29 Vt.437; Nichols v. Wal- ter. 8 Mass. 243; Conrad v. Druids Grand Grove, 64 Wis. 258. " Guinotte v. Chouteau, 34 Mo. 154; Lawton v. Buckingham. 15 Iowa, 22; Harlow v. Thomas, 15 Pick. 70; Ante, § 79. ' Lacey v. Marnan, 37 Ind. 168; Dale v. Shively, 8 Kan. 276. And see Farmer's Bank v. Glenn, 68 N. C. 35; Hodges v. Thayer, 110 Mass. 286; Byrnes v. Rich, 5 Graj'^ (Mass.), 518; Burke v. Beveridge, 15 Minn. 205. 160 CONVEYANCING. CIl. II. value of tlic hiiid m1 the lime of the iiitoiidcd convej^ince, with interest from llicdaleof llicdccd.' Jf the breach only extends to a part of the pi'emiscs, damages will be allowed jiro rata.- The measure of damages never exceeds the amount paid with interest : and many circumstances may operatt' to reduce that amount. Thus, where the para- mount title has never been asserted, and from la})se of time the title has become comj)lcte, or an after-acquired title by the grantor inures under the covenant of warranty to the grantee, the damages may be merely nominal,'' So profits may sometimes constitute an offset;^ and, if the purchaser has himself extinguished the paramount title, the measure is the amount i)aid for the outstanding title, not exceeding the [)rice originally paid."' § 17(). The Damajies Recoverable for a Breach <»f the Covenant Ajjainst Incnnibrances are the actual dan)ages sustained, not exceeding the amount of the purchase-money and interest. IF the incumbrance be of a permanent char- acter, as a right of wa}', or other easement, and cannot be removed, the damajres will be measured bv the diminished value of the estate, occasioned by the existence of such per- manent incumbrance.'' If the incumbrance be of a character > Smith V. SUoiig, 14 Tick. 128. - Hubbard v. Norton, 10 Conn. 422; Partridge v. Hatch, 18 N. H. 494; Morrison v. McArthur, 4'ii Me. .")67. •"^ King V. Gilsoii. ;52 111. H.'iO. A grantee, who ha.s abandoned posses- sion of the premises l)efore hostile assertion pi paramount title, can recover only nominal damages. Cockrell v. Proctor, 65 Mo. 41. ' Whiting V. Dewey. 15 Pick. 428. • Hall V. Bray, .ll ]Mo. 288. It devolves upon the covonantee who has jjurchased an adverse title, without suffering an evietion, to prove that the title pui'chased is a good title, and it was purchased at a fair and reasonable price. See Lawless v. Collier, 19 Mo. 480; Dickson v. De- sire. 23 Mo. 1.57; Abbott v. Allen, 14 .Johns. 247: Sedgw. Meas. Dam. 181. And see McKee v. IJain, 11 Kan. W.). « Harlow v. Thomas, 15 Pick. GO ; AVilliamson v. Hall, 02 Mo. 405. And see Sturtevant v. Phelps, 16 Gray, .50. When a covenant is of such a nature that there can be but one breach and one recovery, the jiny are not limited in assessing damages, in an action on the breach, to the time when the suit was instituted, but may award damages for such perma- nent injury as they may find the plaintiff has sustained. Jacobs v. Davis, ART. \II. COVENANTS FOIi TITI.K. H)l wliich admits of being removed, and the i)urehaser shall luive extinguished it, lie may recover what he may have fairly and reasonably paid for its extitiguishment.* lint until he has paid off the incumbrance, he is only entitled to nominal dam- ages.- 'Pile purchaser is not bound to redeem, and if the incumbrance, b\' a failure to redeem, ji'iows into an absolute estate, and the purchaser thereb}' loses his title altogether, he may recover in damairesthe purchase-money and interest.-^ § 177. Damages Itecoverable for Breach of the Cov- enant of Warranty. — The rule as to the measure of damages, recoverable for an eviction, in an action for breach of the covenant of warranty or quiet enjoyment, is not uniform in all the States. In Maine, V^ermont, Massachusetts and Con- :U M(l. ■J(I4. Evidence of the enhanced value of the laud by reason of the raihoad, or of privileges accorded by the railroad, is iuadmiiisible. Kello.ng V. Malin. r,-2 Mo. 429. ' Heed V. I'ieree. o(J Me. 4.")."); Wilson v.AVilsou, 2.") N. 11.229; Comings V. Little. 24 Pick. 200. A grantee cau recover the reasouable expenses paid by liiiii in removing incumbrance — being an assessment forthe cost of conslrne-ting sewer— although the assessment is in fact invalid, pro- vided it can be re-assessed. Coburu v. Litchtield, l;)2 Mass. 449. A grantee after bringing suit for a breach of the covenant against incum- brances may pay them off and recover the amount as damages. .John- son V. Collins. 110 Mass. o92. But the proposition that the i)laintiff is entitled to recover the amount which lie has thus paid, must, it seems, betaken with the qualiflcation that this amount must not exceed the consideration money and interest, in those States in which, on the cov- enants for (|uiel enjoyment and of warranty, the limit of damages is the same as (»u the covenant of seizin. Kawle on Cov., 4th ed., 29."). And see Dimmick v. I>oikwood, 10 Wend. (N. Y.) 142: Foote v. Burnett. 10 Ohio, :!:!4: (ireene v. Taliman. 20 X. Y. 191; Cox v. Henry, :?2 Pa. St. 21 ; Brady v. Spurck, 27 111. 482; City of St. Louis v. Bissell.40 Mo. l.")7; Walker v. Deaver. 79 Mo. 004. '-3Iorris()n v. Ludervvood. 20 X. U. 3()9; l-'unk v. Creswell, 5 Iowa, 02; .Jenkins v. Hopkins, 8 Pick. ;?4e: Smith v. McCainpbell, 1 Blackf. (Ind.) 100; Anderson v Ivm.x, 20 Ala. 1.jO; Eaton v. Lyman, :50 Wis. 41. The right of a divorced wife to have dower assigned in the real estate of him from whom she has been divorced is an incumltrance: but before as- signment, although after demand, nominal damages only are recovera- ble in an action for breach of the covenant. JJunuels v. Webber. .■>9 Me. 488. •■'Chapel v. Bull. 17 Mass. 213. 01) hij CONVEVAN(l.\< . (MI. II. m?c-licut, tlio inoasuro of (l;imai£os i.> tlic value of llic laiul at the time of the eviction.' In a niajoiity of llie States;, how- ever, the measure i.s llie cou.-^ideration inonev, interest thereon, and co.>^t, if any, of defendino; tlie eviction.- And this has been h(dd to include a reasonable attorney's fee.^ If the eviction extends onl}' to a part of the prem- ises, tlie measure of dama""es will l)e the extent of the in- jury sustained.^ 1 Sterling v. Peer, 14 Couii. 2-15; SAvelt v. rutrick. 12 Me. 1 ; Hardy v. Nel.son, 27 Me. 525; Gore v. Hrazier, 3 Ma.ss. 523; Caswell v. Wendell, 4 Mass. 108: X; Hopkins v. Lee, G Wheat. 118; Tong v. Matthews, 2:5 .Md. 437; Swafford v. \Vhii)ple, 3 Greene (Iowa), 261 ; Dur- biu V. Garrard, 5 B.Mon. (Ky.) 317; Taylor v. Holter, 1 Montana, 688; Dalton V. Howker, 8 Nev. 198; McGary v. Hastings, 39 Cal. 360; Kings- bury V. Miluer, 69 Ala. 502; Stel)l)ins v. Wolf, 33 Kan. 765. But this is subject to exceptions where the breach of covenant is actually wrongful. In such cases substantial damages maybe recovered. Mack v. Patchiu, 42 X. Y. 167. And nominal damages can be recovered without alleging an eviction or its equivalent. Mason v. Cookse}', 51 Ind. 519. Bui plaintiff cannot recover more than the paramount title, cost witli inter- est. Snell v. Iowa Homestead Co., 59 Iowa. 701. And the amount must not exceed the orignal pi ice paid dcfenchint. Price v. Deal. 90 X. C. 290. '^' Staats V. Ten Lyek, 3 Caiues, 111; Taylor v. Holter, 1 Montana, 688; Rowe V. Heath, 23 Tex. 614; Lane v. Fury, 31 Ohio St. 574. In Massa- chusetts this item is not allowed. Leilingwell v. Elliott, 10 Pick, 20-1. In Mar}'land. it has rcciMitly beiui held tliattiie assigneeof a covenantee cannot recover counsel fees. j>aid bj' iiim in voiinitaril}- defending an ejectment suit, as pari of his damages in an action of covenant of title against the covenantor. It is only when the covenantor refuses, after notice given, to defend the title, that the covejiantee has the right to employ counsel for that purpose, and to recover such reasonable fees as he has been compelled to pay. Crisfield v. Storr, 36 Md. 129. So, also, it seems, in Pennsylvania. Terry v. Drabenstadt, 68 Pa. St. 400. ^ Ante, % 170; Guthrie v. Pugsley, 12 Johns. 126; Dimmick v. Lock- wood, 10 Wend. 142; Boyle v. Edwards, 114 Mass. 373. ART. XIII. TESTIMOML.M CLAUSK. 163 AKTICLK XIII. THE TESTIMONIU.Al CLAUSE. SECTION. 180. It should nppeur that the inslnuneut Avas intended to he sealed. 181. Relinquishment of dower and homestead. 182. As to the relinquishment of dower. 18:?. Of the alienation of the homestead. § 180. It Should Appear that the Tiistriiment was In- tended to be Sealed — It is usual to close a deed with a tes- timonium clause, indicating an intention to execute a sealed instrument; as, "In witness whereof the parties have here- unto set their hands and affixed their seals," etc. In most of the States the statutes, authorizing the use of scroll seals, provide that " every instrument, to which the maker affixes a scroll by way of a seal, shall be of the same force and obligation as if it were actually sealed, provided the maker shall in the instrument recognize such scroll as having- been affixed by way of a seal."^ Under this statute, in order that a scroll may have the effect of a seal, the instrument must show that it was so intended.- In Tennessee, the word " seal *' affixed to the name was held to be sufficient.'^ Bui in Indiana an instrument, concluding " witness our hands," with a scroll annexed to the signature, and the word "seal" written therein, was held to be only a simple contract.* Under the Alabama statute, an instrument which in the 1 Stimson's Amer. Stat. §§ 1564, 156."). - Cromwell v. Tate, 7 Leigh (Va.), 301; Lee v. Adkins, Minor CAla.), 187; Boyntou v. Reynolds, 3 Mo. 79; Long v. Long, 1 Morris (Iowa), 43; Grimsly v. Riley, 5 Mo. 280; Walker v. Keile, S Mo. 301; Ghisscock v. Glasscock. 8 Mo. .577; Amistroqg v. Peareo, 5 Harr. (Del.) 351 ; Bell v. Keefe, 13 La. Ann. 524; Hudson v. Poiqdexter, 42 Miss. 301: Xorvell v. W^alker, 9 W. Va. 447; Haseltine v. Donahue, 42 Wis. 57(5. s Whitley v. Davis, 1 Swan, 333. And ise^ Whittington v. Clarke, 16 Miss. (8 Smed. & M.) 480. ■* Deniiug v. Bullett, 1 Blackf, A^L And see Jenkins v. Hurt. 2 Kand. 446. But contra, Lewis v. Overby, 2,8 Gratt. 627. 164 CONVEYANCING. CH. II. body of it purports to ho under seal, will bo considered a deed, tliou<2;h no seal or scroll bo annexed to the signature.^ Unless made so by statute, a scroll of ink or other devise does not constitute a seal, even thouirh it appear that it was so^inten(]ed.- § 181. Helin<|iiisliiiHMit of Dowei* au Sholtoii V. Armor, i:? Ala. 647. See Starkwoatlior v. Alartin. "iS Midi. 471; Hudson v. Poindexler, A'l Miss. :{04; Mittin-il v. I'artiaiii, llarit. (S. C.) 1. - Perrine v. Cheeseiuan, UN. J. I.. 174; Warren v. Lynch, 5 Johns] 239. •'' Fi'ost V. Deeriug, 21 Me. L*)!!; Davis v. IJartholomew, :? Ind. 485; Fowler v. Shearer, 7 Mass. 14 ; Stinson v. Sunnier, 9 Mass. 143; Stearns V. Swift, S Pick. .")32: Witter v. Biscoe, V.i Ark. 422: Burge v. Smith. 27 X. n. ;«2; Learned v. Cutler, IS IMck. 9. * As to homestead. McDonald v. Cran(lalL4:5 111. 2:52; Hewitt v. Tem- pletou, 48 111. 307; Chamberlain v. Lyell, 3 Mich,4r)S; Barker v. Kollins, 30 Iowa, 412. A release of dower to a stranger cannot be set up as a bar to her claim against the tenant of the estate, although the lelease was made to one through whom the tenant claims. Pixleyv.Bennett.il Mass. 290; Harriman v. Gray, 49 Me. i338. •' fJreen v. Putnam,! Barl). 500; Moore v. Xew York. 4 Seld. 110: Mallory v. Ilorau, 12 Abb. Pr. (N. S.) 289. AltT. XIII. TESTIMOXIl'M CLAUSE. 165 hody of the deed.' l>ut in other vSitiics it lias been held tliat such a release must appear both in the body of the deed and in the certiticate of acknowledgment.^ It would seem to be eminently pro})er, where a wife joins in the deed, to insert some such a clause in the body of the deed, if for no other reason than to show the respective interests in- tended to be conveyed. In those States in particular, in which the manner of releasing the homestead right has not been settled, either by statute or adjudication, it would doubtless be wise to adopt this precaution in drawing a con- veyance or mortgase of the homestead. § 182. As to the Relinquishment of Dower.^ — At com- mon law no conveyance by the husband alone, without the assent of his wife, given and proved according to law, could defeat her ri^ht of dower;-' and she could only release her claim by joining with her husband in the act. In England, piior to the statute of 3 and 4, Wm. IV. ch. 74", the only regular wa\ of doing this, after the right had once attached,* was by means of a tine, in which the wife was separately examined.'' By that statute fines and recoveries were abol- ^ As to homestead, see Bal)eock v. lloey, 11 Iowa, 375; O'Brien v. Young, 15 Iowa. 5; Kobbins v. Cookendorfer, 10 Bush, 629. But if it appears either in the deed or certiticate of acknowledgment that the wife only released her dower, it will not be a waiver of the homestead. ^Villg V. Hayden. 10 Bush, -280. - As to homestead, see AVitter v. Biscoe. 13 Ark. 422; Russell v. Eum- sey. 35 111. 362; Connor v. McMurray. 2 Allen, 202. And see Hoge v. Hollister, 2 Tenn. Ch. 60('>. As to dower, see Leavitt v. Lamprey, 13 Pick. 383: Catlin v. Ware. !) Mass. 218; Stevens v. Owens, 25 Me. 94; Powell V. Mouson, etc. Co., 3 Mason, 349; Hall v. Savage, 4 Mason, 273; Lufkin V. Curtis, 13 Mass. 223. See Lothrop v. Foster, 51 Me. 367; West- fall V. I>ee, 7 Iowa, 12. ■■ Rank v. Hauna, <> Ind. 20. ^ In order to prevent this inconvenient right from attaching on newly purchased lands, and to enable the purchaser to make a title at a future time, without his wife's concurrence, various devices were resorted to in framing of purchase deeds, for an account of which see Williams on Real Prop. 215, at seq.; 4 Kent's Com. 51, 52. ■ Williams on Real Prop. 214; 4 Kent's Com. 51 . Fines and recoveries were never in use in the United States, except to a very limited extent. Ante, § 58. lt)6 CONVKVA.NCINir. Cll. II. islii'd, and wives may now t-oiiNcy llioir estates by deeds executed in concurrence with tlicir husbands: l)iit the sep- arate examination, which was before necessary in tlie case of a tine, is still retaiiuMJ.' This mode of passing tlu^ es- tate of a manie(l woman, whether in her own property or that of her husband, has prevailed in this country from a very early i)eriod.'- In some of the States the sei)arate ex- amination and acknowledgment of the wife is retiuired.' and is others it is not; but, with few exceptions, the hus- band must join with the wife in tlie deed by which she re- liiHluishes iier right, in order to give it any effect as a l)ar of dower. ^ In a few of the States special [)()wers ha\ c been conferred b^' statute ui)on married women in respect to the execution of deeds, by which tlie common law rules have been abrojiated.'' The law as to the right of the husband to defeat the widow's right of dower by his own deed has also been essentially changed in several of the States, as well as in Kngland, so that she is only dowable of such land as he ' Williams on Real i'rop. 21:5. , - Davey v. Turner. 1 Dallass, 15; Lloyd's Lessees v. Taylor, /t?. 17; Fowler v. Shearer. 7 Mass. 20; Powell v. Monson. ete. Co., :5 Mason, 347 : Burge V. Smith, 7 Fost. (N. II.) :?:52; .lacksou v. Gilchrist. 1.") Johns. 100. ■^ Stimson's Amer. Stat., § (5501- •• Powell V. 3I()nson, ete. Co., 3 Mason, 353, 354; Stearns v. Swift, 8 Pick. .532; Page v. Page. (5 Cash. lOG; Elmeiulorf v. Lockwood, 57 N. Y. 322: Ulp v.Canjj)tiell, 10 Pa. St. 3(51 ; Davis v. Bartholomew, 3 Iud.4S5: Will- iams V. Robson, (5 Ohio St. 514; Moore v. Tisdale, 5 B. Men. 353; Slmw- V. Russ, 14 Me. 432. A separate release written on the back of the hus- band's deed held insufficient to t)ar dower. French v. Peters. 33 Me. 30G. [n Mississippi, dower may be released first by a joinder of the w ife in a conveyance by the husband, acknowledged by her on a private exami- nation apart from him, or a separate deed of reiiiupiisiiment : secoiid. by a conveyance of the husl)aud in good faith for a vahiable considera- tion. Sykes v. Sykes, 40 Miss. 100. ■^ Stimson's Amer. Stat.,§§ 3245. G504. By statute, in ^Slassaeiinsetts. the wife may release her dower to the ow nei- of the fee tjy a scpariile deed. Gen. Stat. eh. 00, § 8. And in New llam|)sliire it has been held that she may bar her dower by a separate deed subsetpientto thatof her husband. Sliepherd v. Howard. 2 X. II. .")(I7. \m\ see Chicago Dock To. v. Kinzie. 40 111. 2S0. Married woman liy joining witli her husband in tiie deed releases dower. Dulton v. Stuart, It Ark. 101; Pritc v. Kneale, 100 111. (;52. AllT. XIII. TFOSTIMOXIUM CLAUSE. 1<)7 dies seized of.' 'l\\v (juestioii as to the effect of a deed, made for the i)iii})<)se of defeatii)g a wife's dower in such ease, has been differently decided in different States.- In some of the States such a deed lias been held fraudulent and void, "^ while in others it would be effectual.* It niav' be observed that, w'here a transaction vestsamei'e instantaneous seizin in the; husband, without the intent to (dothe him with a beneficial interest, it jjives the wife tio !'ight of dower in the land."' So, where the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor," or to a third person," to secure the purchase-money, in whole or in part, the wife's right of dower is sid)ject to the mortgage. '^ We have seen in a prior section that, in some of the States, a deed is insufficient to convey the wife's right of ' As to provision.-i of 8t;itute governing questions of riglits of dower, uad in what lauds widow can claim dowei'. see Stiaisou's Auier. Stat., j :^202. - Stimson's Amer.. Stat. §3203. ^ McGee v. McGee, 4 Ired. lO."); Brewer v. Couuell, 11 Humph. 500. See Kowland v. Rowland, 2 Sneed, .")4;}: S3^kes v. Sykes, 49 Miss. 100. ^ Jenny v. Jenny, 24 Vt. :{24. •'Co. Litt. 31, /-.; 4 Kenfs Com. 39: 2 Crabb Real Prop. IGl: Stan- wood V. Dunning, 14 Me. 290. Whether the seizin issuflicienf to confer the right of dower, depends upon the character rather than the duration of the seizin. Mayburry v. Brien, 15 Pet. 39; McCauley v. Grimes. 2 Gill & J. 318; Webster v Campl)ell, 1 Allen, 314; Pendleton v. Pomeroy. 4 Allen, 510. The question is whether the two instruments are to be considered as part of one and the same transaction, no space of time intervening between the taking and parting with the estate. King v. Stetson, 11 Allen, 408; Lassen v. Vance, 8 Cal. 274; Slow v. Tifft, 15 Johns. 402; Boyiitoti v. Sawyer, 35 Ala. 497: Stephens v. Shcrrod, Tex. 297. But see McClure v. Harris, 12 B. Mou. 201. « Stow V. 'IMfft, 15 .lohns. 458; Bullard v. Bowers, 10 X. 11.500; Griggs V. Smith, 7 JIalst. 22; Hinds v. Ballon, 44 X. H. 020: Holbrook v. Fhi- n-y. 4 Mass. 5(;n: Heed v. ^lorrison, 12 Serg. ., 4th (mI.. 219. Astodow. r ill lands mortgaged, see Stiinson"-; Aiiier. Star. j§ 3213. :{214. lll.S CONVKY.\NriN(J. CIl. II. (lower, altliougli sigiuMl hv licr with lii'i' liu-ltiind, unless it eoiilains words of graiil (»!• release, wjiicli specially apply to her interest in the estate.' Uiit it has heen held siifii- eient to bar dower, if the deed eontaiii- \\()i Sitpm, 5> l>sl. - Learned v. Cutler, 18 Pick, i); Smitli v. Handy. Mi ( )|)i(.. ■.>;!(;. •' Burge V. Smitli. JT X. 11. .VA-l: Dii-tiii v. Steele. J'l. 4:51. Ackii(»v\l- edsriiiVliere !>> the terms of the deed the hu.«- band alone conveyed, it.wa- held no bar to the \vife"< dower, although she was described in the dee(l asa party, and joined in the execution and in ackin)\\ lediiing it. >JcFarlaiid v. I'^^-biiiCf. 7 Ohio. I'.M. And it seems that in Iowa wIhtc grantor's wife did not join in the deed, but in cont:id- eratiou of payment of the purchase-money to her. promised orally never to claim dower, that her i)romi-e bmiml her ami her heir-. Dntdap V. 'I'homas. (i!) Iowa. li.'KS. ^ Jfoger- V. Wuody. 2:5 Mo. .")4S: C'lark v. IJedniaii. 1 T.iackf. :!7'.i: Kirk V. I)<'an. 2 liinn. lill : T>ewis v. Coxe. •") Ilarring. l(f_': Scaidan v. 'I'lirm-r. 1 Bailey. 421. See Morris v. Sargent. IN l<»wa. !)'••: //^rV". < 'hap. I. Art. 1. But see 1 .Vm. Jur. 74. •^ California Civil Code. ^ IJIJ: (icorgia Code. 1S7:?. ^ -JO-J.') : Illinois Rev. Stats., 1S77. ch. .V2.n: Indiana Rev. Stats.. 187(i. p. :!.') I. eh. I 1 , {} :!: Iowa Code, 1S7:{. vj l!i!)i); Dakota Uev. Code, 1S7:{. ch. :{S. ^ ;{ : Wiscon- sin Jiev. Stats., 1S7S. ;;; -J-iOit; Tennessee Stats.. lS71.Vol. 1. ij -2114, ai Texas Const.. lS(i!i. Art. 12. ;> 1."): Kansas Const.. Ail. 1.'). ij '.i: N'crniont (ien. Stal-.. \S(t^.^. p. 4.")7. her liusbiuul, us in case of a rolea.se of dower.' In Color- ado the instrun.ent must he ftir/ned as well as aeknovvledged, separate and apart from the husband.-' It seems that in Kcntueky, although tin; husband eannot "mortgage, release or waive" th(^ homestead exem|)tion to a ereditor "exeejjt by a conveyance in which his wife joins, and whi(-h is ac- knowledged and recorded in the same manner as convey- ances of real estate."''^ yet this does not impose any re- straint u))on the sfeneral rio;ht of alienation vested in the owner of real estate bv the laws of the State. ^ And in several of the States where the wife's concurrence in every form of alienation is necessary, it is not so in the case of a mortgage by the owner to secure the pa}- ment of the purchase-money of the homestead.-^ In Ne- i Lambert v. Kinney, 74 X. C. 348. In Alabama and Arizona the homestead statutes provide that the certiticate of some othoer, author- ized by huv to take acknowledgments of deeds, must be attached to the instrument of alienation, to the effect that the wife of the alienor, being fully apprised of her rights, was examined by him sei)aiate and apart from her husband, and acknowledged that her signature to the instru- ment was voluntary. Ala. Code, 1876, § 2822; Gates v. Hester (Ala.), 1 South. Rep. 848; Scott v. Simons, 70 Ala. ;5r)2. But not required when the homestead is her ])roperty. Dawson v. IJurues. 73 Ala. 111. And see Hood v. Powell. Ilnd. 171 ; ^Moses v. McClain (Ala.). 2 South. Rep. 741; Riecke v. Westenhoff, 8.") Mo. G42; Comp. Laws of Arizona, 1871, ch. 37, § 2. In Vermont the statute provides that, unless the wife joins in the execution and acknowledges such conveyance, as in the convey- ance of lauds of a married A\ Oman, the same "shall be wholly inopera- tive." Gen. Stats., 18G3, ]). 4.")7, $ 10. But see Lawver v. Slingerland. 11 Minn. 447. In Illinois it is held that it must appear in the certificate of acknowledgment, as well as in the body of the deed, that she relin- quishes that particular right. Boyd v. Cudderback, 31 111. 113. The privy examination, acknowledgment and declaration before the officer, as required by statute, is the essence and foundation of her deed. Cross v. Everts, 28 Texas, .^32. - Gen. Laws, 1877, ch. 4G, § (>. •" Gen. Stats., 1873, ch. 38, Art. 13, § !). A homestead exemption is not waived by the wife ineiely joining with her husband in a mortgage of his property "to relinquish her right of dower.'' Herbert v. Kenton Assoc. 11 Bush, 290. * Brame v. Craig, 12 Bush. 404. But see McGrath v. Berry, 13 Bush, 301. ^ Minn., 1 IJiss. Stat, at Large. (!30. title ."). ^j ICd; Mich. ('oin[>. Laws. 170 rOXVEYANCING. ClI. II. \:i(l;i llic >t;iliilc provision is thai no niort'^auo or ali^'iia- lion of any kind, made foi- the jjuiposc of secnring a loan or in(l('l)ltHln<'ss uj)on the honu'stcad. -hall ho valid for aii\' l)ur})osi! \\U:i{v\vv, j)rovid('(/, {\\ii{ Ihc niorVgage or aliena- tion to secure or \y,\y the puichase-nioney .shall be valid, if the signature of tht; wife he obtained to the same and acknowiedgtMl b\ her, separate and apart from her hus- band.' In Texas the i)ro\ision is, that no mortgage, trust- deed, or other lien on the homestead, shall ever be valid, except foi- th(^ purehase-monev thereof, as hereinbefore pro- vided, whether such inortgagt", or trust-deed, or other lien, shall be created by the husband alone, or together with his wife; and all j)retended sales, involving any condition of defeasance, shall be void.- These examples will serve to illustrate the di\(Msity of the statutes of the several States upon this subject, some of which have been held unconsti- tutional, as being in restraint of alienation.'^ (ienerally speaking, ]^ower to sell the homestead in a prescribed man- ner includes tlie })ower to ///or/r/af/c it ; for "a mortgage is a conditional sale.'"^ lint a statute which creates a home- stead exemption, and pi'cscrilx's formalities for its aliena- tion, subjects th(> owner to a disal)ilil y w hi(;h no means to which he can resoii will enable him lo nxoid or overcome.'' "He can part with it only b\' the formalities prescribed by 1871, oil. lii:}. ;< -2: V:i. Code, 187:5. cii. 1S:{. s< 7: X. II. Gen. Stats., 1807, oh. 124, § 2; Vt. Gen. Stats., 1870. eli. 08. ;j 10. 'Goinp. J.aws, 187:1. p. 01, §187. 2 Const. 'I'exas. 1870. Art. 10, § .■)0. And see Newman v. Kai(jiiliar. 00 Tex. 010. it ilic linsbaud seeks to convejMhe homestead without his wife's joining- under ffaudulent claim that it is necessary to do so for the unpaid purcliase-money, his conveyance passes no title to purchasers with notice. .Moiris v. Geiseclvc, OOTcx. o;5:{. 'M)iinker v. Chedic, 4 Xev. :578. And see Jolinson v. Fay. 10 Gray, 111. ' DunktT V. Chedic. 4 \ev.:;s2: Uicliard v. Cliucc, 2 (iray. :!S.-); IJoyd V. Cudderbaek, :il 111. 11!): Sampsoa v. Williamson, t; Texas. 10-2: Lee V. Kiutrshury. 1:5 Texas, 60; .Jordan v. I'eak. :!8 Texas. i;{!». ■"' ('onnor v. McMurrav. 2 .\llen. 201. Kxccpt that he may abandon it and take his family with him. \Vilii:un< v. Swctlaiid. Ml Iowa, 06; Rob- inson v. Davenimri. H) 'J'exas, :!;>:!. :{|."). ART. XIII. TESTniONir.M CLAUSE. 171 liiw."' 'riiii.s, wlierc! the sttitutc provides that, in order to make a valid conveyance of the homestead, the wife of the owner must join in the deed, a conveyance by the husband alone is held by most courts to be void, not only as to the wife, but also as to the husband. Such a conveyance there- fore esto))s neither from assertino; the homestead right as against the alienee.'^ And separate deeds by husband and wife have been held not to be a sufficient com})liance with the provisions of a statute requiring a "deed executed by husband and wife. "'^ But a conveyance to secure a debt which is privileged against the homestead will pass the homestead right, though imperfectly executed by the wife,* or although the wife does not join in the deed at all, since as to such a debt there is no homestead.'' Land will not, as a general rule, be subject to ;in\- restric- 1 Abbott V. Croiniirtie, 72 N. C. 292; Beaven v. Speed, 74 N. C. 54S; Fleuje V. Garvey, 47 Cal. 371; Thonipi>;: infrn. Art. VI. 2 B:utl«-tt V. Drake, 100 Mass. 174. •■' Middlcton v. Findla, 25 Cal. 70. ^ Tustin V. Faught, 23 Cal. 2:\7 . '• O'Meara v. North American, etc. Co.. -2 Xm . 112: Houx v. Batteen, 6S Mo. 84 ; ante, ^ 70. 8 Cole V. Long, 44 Ga. .")7!t. Wluii tlie itllcucd niaktu- ot a recorded deed ha.s tiled an attidavit as required by G:i. Hev. Code, § 2G70, that the deed is a forgery, and an issue is found to try the genuineness of the deed, the burden of proof is on the parly asserting liie genuineness. Hanks v. Phillips, 39 Ga. 550. ' Meagher v. Thompson, 4!l Cal. 180. ^ Infra, Articles VI. and A'll. •'Hatch V. Barr. 1 Ohio, ISl. ART, III. AS TO THE SEALS. 177 convey its lands, was held inoperative.^ Though, where a deed, purporting to be the deed of a corporation, was signed by its trustees, as trustees, and liad the corporate seal af- fixed, it was hchl adinissibh; in evidence as a deed of the corporation, and that it was itself presumptive evidence of the regular and duly authorized execution thereof.^ So, a deed in which a corporation is described in the body of it as the grantor, and executed by the vice-president thereof, signing himself as such, and attested hy the seal of the corporation, is prima facie well executed and is the deed of the corporation.^ ARTICLE III. AS TO THE SEALS. SECTION. 193. A seal essential to the validity of a deed, at common law. 194. What will constitute a common law seal. 195. A scroll may be used as a seal in what States. 196. Several persons may adopt the same seal. 197. Of corporate seals. § 193. At Common Law a Seal was Indispensably Necessary to the Validity of a Deed. — And the same is be- lieved to be true in all of our States where the common law has been adopted;* excepting those States in which seals have been expressly abolished by statute. No seal was necessary under 1 Zoller v. Ide, 1 Xeb. 439. But see Bason v. King's Mountain Min. Co., 90 N. C. 417. 2 Miner's Ditch Co. v. Zellerbach, 37 Cal. 543. 3 Sawyer v. Cox, G3 111. 130. ^ The term '' deed " siguities a writing with a seal, and the seal is es- sential to make the writing a deed. Taylor v. Morton, 5 Dana (Ky.), 365; Davis v. Brandon, 1 How. (Miss.) 154; Jones v. Crawford, 1 McMull. (S. C.) 373. A paper purporting to be a deed of trust, but not under the seals of the grantors, held, not to be, within the meaning of the Code, a (12) 178 CONVEYANCING. CIF, III. the civil hiw ^ Among the States in wliich the use of seals has been abolished by statute are Alabania, Iowa, Kansas, Kentucky, Texas, Ohio, Tennessee.- In those States in which seals are dispensed with, the conveyance retains all the operation and effect of a sealed deed at common law; and the estoppel, arising at common law out of the recitals or covenants of a sealed instrument, still attaches to the unsealed conveyance, executed according to the require- ments of the statute.^ § 194. A Common Law Seal has frequently been defined to be "an impression on wax, or wafer, or some other tena- cious substance cai)able of being impressed."* And accord- ing to Lord Coke "it is required that the deed, charter, or writing must be sealed, that is, have some impression on the wax."'' But it has been held in some of the States that the law does not require that the impression shall V)c apparent.^ contract iu writing made for the conveyance or sale of real estate, but only a contract for a lien to be created by a deed of trust. Pratt v. Clemens, 4 W. Va. 443. An instrument in form of a deed, but not sealed, conveys an equitable title. Grandin v. Ilermaudey, 29 llun, 39!). See Le Franc v. Richmond, 5 Sawyer, 603. 1 Before 181G, a sealed instrument of writing was not necessarj'', in Missouri, to convey laud. Moss v. Anderson, 7 Mo. 337. 2 See Stimson's Amer. Stat., § 1504. In Alabama, "all writings which import on their face to be under seal, are to be taken as sealed instru- ments, and have the same effect, as if the seal of the parties was affixed thereto." Ala. Code, 187G, § 2194; Goodlett v. llausell, 56 Ala. 346; Pierson V. Armstrong, 1 Iowa, 293; Simpson v. Muudee, 3 Kan. 172; Ky. Gen. Stats. 1879, ch. 22, § 2. Under the Texas act (Rev. Stats. 1879, art. 4487), tlie use of scrolls or private seals in all cases, except corpora- tions, is dispensed with. Courand v. Yollmcr, 31 Tex. 397. And see Bowers v. Chambers, 53 Miss. 259. In Michigan, under statute, § 7778, making deed valid without seal or scroll, the intention of the parties, together with the purpose the instrument was intended to serve, consti- tute the test of the existence of a deed. Jerome v. Urtman (Mich.), 33 N.W. Rep. 759. •^ Jones V. Morris, 61 Ala. 518. ^ Warren v. Lynch, 5 .Tohns. 239; Beardsley v. Knight, 4 Vt. 471 ; Brad- ford V. Randall, 5 Pick. 496: Tasker v. Bartlett, 5 Cush. 359, 364. 5 3d Inst. 169. ^ Pease v. I.awson, 33 Mo. 35; Hughes v. Debnam, 8 Jones (N. C.) L., 127. But in Richard v. Boiler, 6 Daly (N. Y.), 460, it was held that a printed, seal was not sufficient, the court remarking that it must be "an ART. III. AS TO THE SEALS. 179 And :i i)iece of colored pai)er attiiched as a seal, without any impression wliatever, has been held sufficient.^ On the other hand a seal, stamped upon the paper instead of wax or a wafer, has also been held o^ood.- § 195. A Scroll may be used where. — By statute, in many of the States, a scroll annexed to the signature with a pen constitutes a sufficient seal.'' Among the States in which this is true are Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Maryland, Michigan, Minnesota, Missouri, Mississippi, North Carolina, Ohio, Oregon, Wisconsin, and South Carolina. In those States, as a general rule, to give a scroll the effect of a seal, the maker must, in the instrument itself, declare that he set his seal thereto.* But under the statute of Mississippi it was held, that "a scroll attached to a written instrument has the effect of a seal, whenever it appears, from the body of the instrument, the scroll itself, or the place where affixed, that such scroll was intended as a seal."^ And the same is held in Florida.^ In Tennessee, it was held that the word "seal" affixed to the name, is as clearly indicative of an intention to execute a sealed instrument as a seal or scroll, and is sufficient to constitute the instrument a deed." But in other States it impression upon and made visible in wax or wafer, or like substance attached to the paper, or at least the v.ery substance of the paper.'" 1 Turner v. Field, 44 Mo. 382. A piece of paper, attixed to an instru- ment with mucilage and stamped with a permanent impression, is good as a common law seal. Gillespie v. Brooks, 2 Redf . (N. Y.) 349. 2 Pillow V, Roberts, 12 Ark. 822; s. c, 13 How. 473; Roberts v. Pillow, 1 Hempst. 624; Pierce v. Indseth, 10(3 U. S. 546. But see Bank of Rochester v. Gray, 2 Hill (^N. Y.), 227; Farmers' Bank v. Haight, 3 Id. 493. 3 See Stimsou's Amer. Stat., § ir)65. In Xew York and New Jersey it has been expressly decided that a scroll will not constitute a seal. Warren V. Lynch, 5 Johns. 239; Perrine v. Cheesemau, 11 N. J. L. 174. * Cromwell v. Tate, 7 Leigh, 301 ; Ante, § ISO. 5 Hudson V. Poindexter, 42 Miss. 304; McRaven v. McGuire. 9 Smed. & M. 34. 6 Comerford v. Cobb, 2 Fla. 418. In Nebraska, where statute requires a seal on tax-deed, a scroll is not sufhcient. Hendrix v. Boggs, 15 Neb. 469. 7 Whitley v. Davis, 1 Swan (Tenu.), 333. 180 CONNEYANCING. |CJ1. 111. has been held otherwise.^ In Wisconsin ii printed "L. S." inclosed in brackets, in the usual place of a seal, is suffi- cient.'- If there be an expression in the body of the instru- ment, denoting that it is sealed, it will be a sealed instrument, whatever the scroll may be.^ The word "seal" at the end of the name, referred to in the testimonium clause, is a suffi- cient sealing.^ In Alabama, the conclusion of an instrument with "witness ni}' hand and seal" constitutes a sealed in- strument, though no seal or scroll be annexed to the signa- ture.^ § 196. Several Persons may Adopt the Same Seal. — In the first place it may be observed that, it is immaterial who affixes the seal to a deed, whethei- a party to the deed, or a stranger. By delivering it as his deed the maker adopts the seal. And likewise any number of persons may adopt the same seal,^ if the intent to ado})t it as such is evidenced by the instrument.^ Where there is but one seal to a con- tract signed by several {)ersons, it will be presumed to be the seal of the l)arty whose name is prefixed to it. But upon proof of its being attached by the authority of the other i)arties to the contract, it will be held to be the seal of all.« 1 Jenkins v. Hurl, 2 Rand. (Va.) 44G; Deningv. Billett, 1 Blackf. (Ind.) 241. 2 AVilliams v. Starr, "> Wis. 'Ad. Unsealed deed conveys equitable title. Drentzer v. Baker, 60 Wis. 179. ^Lee V. Adkins, Minor (Ala.), 187; Boynton v. Reynolds, 3 Mo. 79; Longv. Long, 1 Morris (Iowa), 43; Grini.sly v. Riley, 5 Mo. 280; Walker V. Keile, 8 Id. 301 ; Glassock v. Glassock, Id. 577; Armstrong v. Pearce, .5 llarr. (Del.) 3.51 ; Bell v. Keefe, 13 La. Ann. 524. •• Groner v. Smith, 49 xMo. 318; Lewis v. Overby, 28 Gratt. ()27. "' Williams v. Young, 3 Ala. 14."); Moore v. Leseur, 18 Id. GUU; Slielton V. Armor, 13 Ala. 047; Goodlett v. Hansell, 56 Ala. 346. But see Mitchell V. Parham, Harp. (S. (.'.) 1. eShep. Touch. Prest. ed. .")4, 57; 1 AVood on Conv. 192; Co. Litt. G a; Mackay v. Bloodgood, 9 Johns. 285: Bank of Cumberland v. Bugbee, 19 Me. 27; Yale v. Flanders, 4 Wis. 96; Bohannons v. Lewis, 3 T. B. Mod. (Ky.) 376; Carter v. Chaudron, 21 Ala. 72; Williams v. Greer, 12 Ga. 459. 7 Norvell v. Walker, 9 W. Va. 447. 8 Van Alystyne v. Van Slyck, 10 Barb. 383; Yarborough v. Monday, 2 ART. IV. ATTESTINC; WITNESSES. 1«1 § 197. — Corporate S«>als. — Corporations ordinarily have and use a common seal. But a deed of a corporation may be fifood, sealed with any seal, if adopted and used by such corporation.^ It must, however, be shown to have been so adopted."^ And the seal must be affixed by some one duly authorized to affix it.-^ In the absence of proof to the con- trary, the court will presume, when the instrument is signed by the proper officer, that the seal was affixed by him by the express authority of the corporation.^ It devolves upon the party contesting the validity of such deed, to over- throw the the presumption that it was regularly and duly executed,^ ARTICLE IV. ATTESTING WITNESSES. SECTION. lt)9. Xo witnesses required at common law. 200. The number of witnesses required in different States. 201. Qualification of the witnesses. 202. \Vitness must sign at grantor's request. § 199. Xo AVitnesses Required at Common Tjaw. — As a matter of proof that an instrument has been executed by Dev. (X. C.) L. 493: Davis v. Burton. 4 111. 41; McLean v. Wilson, Id. 50; Limsford v. La Motte Lead Co., 54 Mo. 426. i Stebbins v. Merritt, 10 Cush. 27, 34; Mill Dam Foundry v. Hovey, 21 Pick. 417, 428; Tenney v. Lumber Co., 43 N. H. 343; Ang. & Ames on Corp. § 22."): Com. Dig., Fait. A. 2. 2 If a plaster of wax be used as a seal, it must be proven that it was adopted by the corporation, and ordered to be used in that particular case. Perry v. Price, 1 Mo. 645, 664. 3 Koehler v. Black River, etc. Co. 2 Black. 715: Jackson v. Campbell, 5 Wend. 572. "♦ Musser v. Johnson, 42 Mo. 74: Chouquette v. Barada, 33 Id. 249; Riley v. Chouquette, IS Id. 220; Sheehan v. Davis, 17 Ohio St. 571 : Jack- son V. Campbell, 5 Wend. 575; Lovett v. Steam Saw Mill Association, 6 Paige, 54. 5 Miner's Ditch Co. v. Zellerbach. 37 Cal. 543. 182 CONVEYANCING. CH. III. the party b}^ whom it purports to be have been done, it is necessary in some of the States that there should be wit- nesses of the fact. This attestation was not essential at common law, and is unnecessary in many of the States. But in other States a deed is invalid, unless attested by one or more witnesses according to the statutory requirements.^ §. 200. The ISTiiinluT of Witnossos Required in the Different States. — In Mississippi and Maryland, and some of the other States, one witness is sufficient.- In Delaware, Georgia, Connecticut, Michio^an, jNIinnesota, New Hampshire, Ohio, Kentucky, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Wisconsin, West Virginia and South Carolina — in fact, mos.t of the States, two witnesses are required.^ In New Hampshire and Kentucky a deed without witnesses has been held good between the parties.* And in Vermont a deed having but one witness was pei'mitted to be used in evidence in any action to compel specific performance of a contract to convey by a sufHcient deed.-^ In Michigan, where two witnesses are required, though it was originally held that a deed attested by one only would have no effect to convey the land,^ the Supreme Court has an- nounced the doctrine that the tiile may pass without wit- nesses or acknowledgment, but cannot be fully protected.'^ 1 Stimsoii's Ainer. Stats., §§ 1566, ir)67. 2 Shirley v. Fearne, 33 Miss. 653; Rev. Code of Maryland, 1878, p. 383, §3. 3 Rev. Code of Delaware, oh. 83, §3; Georgia Code. 1873. § 2690; Gen. Stats. Conn.,]875, p. 352, § 5; Comp. Laws of Michigau, 1871, vol.2, p. 1342, § 8; Stat. Minn., 1873, vol. 1, p. 637, § 7; Gen. Stats. New Hamp- shire, p. 251, § 3; Gen. Stats. Ky., 1870, p. 257, § 15; Rev. Stats. South Carolina, 1873, p. 423, §4; Gen. Stat. Vt., p. 450, §18. See Stimson's Amer. Stat.. 1566. And see Kenyon v. Segar, 14 R. I. 490. In Minnesota, to pass the title it is not necessary that a deed should be witnessed. Morton v. Leland, 27 Minn. 35; Conlon v. Grace (Minn.), 30 N. W. Rep. 880. ^ Kingsley V. Ilolbrook, 45 X. H. 320; Fitzhugh v. Croghan, 2 J.J. Marsh. 429. 5 Day V.Adams, 42 Vt. 510; Vermont Mining Co. v. AVindham Bank, 44Vt."489. 6 Crane v. Reeder, 21 Mich. 24. 1 Price V. Haynes, 37 Mich. 487. ART. IV. ATTESTING WITNESSES. 183 In New York, where a deed is not acknowledged previous to delivery, it must be attested by at least one witness, or it will not take effect as against a purchaser until acknowl- edged.^ In Alabama the deed must be attested by one wit- ness where the grantor writes his own name, and by two witnesses Avhen he cannot write."- In that State, however, the certificate of acknowledgment operates as a substitute for the attestation of witnesses ;"^ but in order to make a deed valid, there must be one or the other.* § 201. Qualificatioii of tlie Witnesses. — In Connecti- cut both witnesses must be competent to testify, at the time of attesting the deed.^ But in New Hampshire, if one of them be competent to testify when such attestation is to be proved, that is sufficient.^ A subscribing witness to a deed is within the same principle which allows the subscribing witness to a will to give his opinion of the sanity of the testator, and may give his opinion, though not as an expert, to the competency of a grantor to contract, at the time of the execution." The wife of a grantor is not a competent witness to attest his deed.^ And a grantor in a joint deed cannot be a witness of its execution bv his co-ffrantors.* A statute, which requires that conveyances of land shall be attested by witnesses, intends an attestation by witnesses who at the time are disinterested.^" But it does not affect 1 Geuter v. Morrison, 31 Barb. 155. 2 Code, 1876, §§ 2145, 2U6; Goodlett v. Hansell, 50 Ala. 346; Lord v. Folmar, 57 Ala. 615; Bank of Kentucky V. Jones, 59 Ala. 123. And it was lately held that a deed signed by grantor, but not acknowledged, and attested by two witnesses, one of whom signed by a mark only and the name of the other was written by the grantor, was invalid to pass title. Stewart v. Beard, 69 Ala. 470. 3 Sharp V. Orme, 61 AU. 263. 4 Goodlett V. Hansen, 56 Ala. 346. 5 Wiustead Savings Bank v. Spencer, 26 Conn. 195. 6 Frink v. Pond, 47 N. H. 125. ' Brand v. Brand, 39 How. Pr. 193. * Corbett v. Norcross, 35 X. H. 99. But otherwise where deed is by husband as administrator. Carter v. Jackson, 58 N. H. 156. 9 Townsend v. Downer, 27 Vt. 119. 10 A stockholder of a private pecuniary corporation is not qualified to 1.84 CONVEYANCING. CH. III. the validity of the attestation of a witness, if ho afterwards acquires an interest therein.' In Alabama attesting wit- nesses must be able to write their own names. - § 202. Witness Must Sisn at the Grantor's Request. — Where witnesses are required, it is common to append to the deed a certificate to the effect that the same was "signed, sealed and delivered in the presence of " the witnesses sub- scribing the same. It is not necessary, however, in order to a sufficient attestation of a deed, that the witnesses should have seen the i)art3'^ write his name. It is sufficient if the latter asked the witnesses to subscribe to the attesting clause, and they did so in the signer's presence.^ ARTICLE V. OF THE DELIVERY OF A DEED. SECTION. 204. A deed takes effect from deliverj^ — Presumption as to the time of delivery. 205. What will amount to a delivery of a deed. •206. The question of delivery always one of intention. 207. The delivery must be known and assented to by the grantee. 208. Delivery to tliird person for the grantee's use. 209. The time at which the title passes. 210. Of tlie doctrine of relation in deeds. 211. Effect of a subsequent ratification. 212. Effect of registration in respect to the delivery of a deed. 21.3. Delivery presumed from possession of the grantee. 214. Acceptance presumed from beneficial nature of the deed, Mhen. 215. Relationship between the party to whom a deed is delivered and the grantee. be an attesting witness to the execution of a deed to the corporation. Winstead Savings Bank v. Spencer, 26 Conn. 195. 1 Carter v. Corley, 2:5 Ala. 612. 2 Harrison v. Simons, 55 Ala. 510. 8 Jackson v. Phillips, 9 Cowen, 113; Parke v. Mears, 2 B. & P. 217. The term "subscribing witness'' imports that the witness must sign at the request of the grantor. Tate v. Lawrence, 11 Heisk. (Tenn.) 503. AIIT. V. DELIVERY OF A DEED. IH5 216. Of the delivery of a deed to a married woman. 217. Delivery of a deed to several grantees. 218. Of the delivery of a deed by several joint-owuers. 219. Deed of and to a corporation, how delivered. 220. A deed must be completely executed before it can take effect by delivery. 221. A deed once delivered cannot be revoked. 222. The question of delivery always open to proof. 223. What is an escroio. 224. Deed never an escrow if delivered to the grantee. 225. Deed placed in the hands of a third party when not an escroxo. 226. Deed delivered as an escroio has no effect until condition per- formed. 227. Effect of second deliver}^ § 204. A Deed takes Effect from Delivery. — A deed, duly executed iu all other respects, must be delivered be- fore it becomes effective.^ It takes effect by virtue of, and from delivery, and not from its date ;- though prima facie the date is to be taken as the time of deliver}^,^ no legal presump- tion of delivery arises from signing and acknowledgment.* But whether a deed will be presumed to have been delivered before it was acknowledged, when the acknowledgment bears date subsequent to the date of the deed, is a question upon 1 1 Wood on Conv. 193; Shep. Touch. 57; Co. Litt. 356, 6; Com. Dig. Fait., a. 3; Oliver v. Stone, 24 Ga. 63; Jackson v. Sheldon. 22 Me. 569; Armstrong v. Stovall, 26 Miss. 275; Cannon v. Cannon, 26 X.J. Eq. 316; Thatcher v. St. Andrew's Church, 37 Mich. 264. Where a deed was never delivered it is void, although it came into possession of person named as grantee and was recorded. Dwinell v. Bliss, 58 Yt. 356. 2 Fairbanks v. Metcalf, 8 Mass. 230; Mitchell v.Bartlett, 51 N. Y.453; Tuttle V. Turner, 28 Tex. 759; Blake v. Fash. 44 111. 302; City Bank v. McClellan, 21 Wis. 112; Jackson v. Bard, 4 Johns. 230: Harrington v. Oflge, 6 Vt. .532; Hood v. Brown. 2 Ohio, 403; Anderson v. Lewis, 1 Freem. (Mich.) Ch. 178. 3 1 Wood on Conv. 195; Shep. Touch. 58. 72; Com. Dig. Fait., G; Billings V. Stark, 15 Fla. 297; Ellsworth v. Central K. R. Co., 34 X. J. L. 93; Harrison v. Phillips Academy, 12 Mass. 456; Cutts v. York, etc. Co., 18 Me. 190; Meech v. Fowler, 14 Ark. 29; Smiley v. Fries, 104 HI. 416; Eaines v. Walker, 77 Va. 92; Wheeler v. Single, 62 Wis. 380; Ward V. Daugherty (Cal.). 17 Pac. Rep. 193. 4 Boyd v.Slayback, 63 Cal.493; Hill v. McXichol (Me.). 13 Atl. Rep. 883; Alexander v. de Kermel, 81 Ky. 345. And see St. Louis v. Wiggins Ferry Co., 88 Mo. 615. 186 CONVEYANCING. CH. III. which the authorities are not ao^reed. Some of the courts hohl that a deed is ])resunied to have been delivered on the day of its date, notwithstanding it was not acknowlcdfyed until afterwards.' But others hohl tiiat the deed will not be presumed to have been delivered until it was acknowl- edged.- The presumption that a deed remains m the pos- session of the grantor, until the revenue stam|)s are can- celled, was also allowed to override the presumption that it was delivered at its date.'' The presumption in either case is not conclusive, and the true date of delivery may be proved aliunde.^ § 20.'). What will Amoiiiit to a Delivery of a Deed. — No particular form of procedure is required to effect a de- livery ;5 and it is not essential that the pa))er be actually delivered. *"' It is sufficient if there bean intention or assent of the mind to treat the instrument as a deed." If the grantor, when executing it, intends it as a delivery, and this is known and understood by tlie grantee, and he and J McConnell v. Brown, Litt. (Kj-.) Sel. Cas. -IS!); Jayne v. Gregg, 42. 111. 413; Robinson v. Gould, 26 Iowa, 89; Breckenridge v. Todd, 3 T. B. Mon. 52; Ford v. Gregory, 10 B. Mon. 175; Sweetser v. Lowell, 33 Me. 44G; Harris v. Norton, IG Barb. 2G4; D.arst v. Bates, 51 III. 439. 2Blanchard v. Tyler, 12 .Mich. 339; Loomis v. Pingree, 43 Me. 299; Henderson v. Mayor, eto. of Baltimore, 8 Md. 352; Clark v. Akers. 16 Kan. 10(5; Fontaine v. Boatman's Saving Inst.. 57 Mo. 553. And where, a grantee died between the date of the deed and its acknowledgment,, it was presumed that the deed had been delivered in his life-time. Eaton V. Trowbridge, 38 Mich. 4.54. " Van Keusselaer v. Vickery, 3 Lans. 57. * Barry v. Hoffman, 6 Md. 68; Fairbanks v. Metoalf, 8 Mass. 230; Har- rison V. riiillips Academy, 12 Mass. 456; Treadwell v. Keynolds, 47 Cal. 171. Parol evidence is admissible to show the true date of delivery. Cook v. KiKiwles, 38 Mich. 316. * Warren v. Swett, 31 X. 11. 332; Burkholder v. Casad, 47 Ind. 418. BFarrar v. Bridges, 5 Humph. 411; Walker v. Walker, 42 111.311; McLure v. Colclough, 17 Ala. 89; Dayton v. Newman, 19 Pa. St. 194. ' Byers v. McClanahan, 6 Gil! & .F. 2-50; Stewart v. Reddirt, 3 Md. 07; Crawford v. Bertholf. 1 X. .J. Ya{. 4.58; Thompson v. Hanuuond, 1 Edw. Ch. (X. Y.) 497 ; Rivard v. Walker, 39 111. 413 ; Stevens v. Hatch, 6 Minn. 64; Warren v. Swett. 31 X. H. 332; Burkholder v. Casad, 47 Ind. 418; Dukes V. Spangler. 9 Cent. L. .T. 398. ART. V. DELIVERY OF A DEED. 187 the grantor go on and act as if the estate had actually passed thereby, it will have that effect,^ though the instrument be left in the possession of the bargainor,^ or in the hands of a third person and never called for.^ Numerous instances might be cited, showing that manual investiture is not es- sential to the valid delivery of a deed. Thus, for instance, where a wife, wishing to convey her land to her husband through a third person, joined with him in making a deed, which was left upon their table till the next morning, when the grantee came and executed a deed to the husband, who took both deeds and put them on record, it was held a good delivery ."^ And when one purchased land, and at his request the same was deeded to another, although the purchaser re- ceived and retained the deed, without disclosing its existence to the grantee, and took and retained possession of the land, yet it was held that the title passed and vested in the grantee.* So where a father had executed a conveyance of realty to his infant son, but had retained the deed in his possession, and had in various ways indicated his intention that the property in question should be thus bestowed at his death, it was held that effect should be given to his intention, not- withstanding there had been no manual delivery.'' And where a father made a deed to his minor son and caused it to be recorded, it was held to be a sufficient delivery to the infant, and that the title passed thereby.'^ The law pre- 1 Walker v. Walker, 42 111.311. And see Thatcher v. St. Andrews Church, 37 Mich. 204; Rogers v. Carey, 47 Mo. 235. - Farrar v. Bridges, 5 Humph. 411; Methodist Church v. Jaques, 1 Johus. Ch.450; Souverbye v. Arden, 1 Johns. Ch. 230; Scrvigham v. Wood, 15 Wend. 545. But see Cook v. Brown, 34 N. H. 460; Johnson V. Farley, 45 N. H. 505. 3 Jamison v. Craven, 4 Del. Ch. 311. 4 Folly V. Vantuyl, 9 X. J. L. 153; Somers v. Pumphrey, 24 Ind. 240 ^ Pennsyvania Co. v. Dovey, 64 Pa. St. 260. 5 Everett v. Everett, 48 N. Y. 218. ^ Newton v. Bealer, 41 Iowa, 334. But contra, Fain v. Smith, 14 Oreg. 82. And see Stone v. French (Kan.), 14 Pac. Rep. 530. ^ Cecil V. Beaver, 28 Iowa, 241 ; Folk v. Yarn, 9 Rich. E(i. 303 ; ]\IcEwen V. Troost, 1 Sneed, 186; Corley v. Corley, 2 Coldw. 520. A father's tes- timony that he intended to deliver a deed to his son at the time of its 188 CONVEYANCING. CII. III. sumes more in favor of the deliverv of a deed in case of a voluntary settlement, especially when made to an infant:^ but the mere sio-nine: and acknowledo;ment of a deed, un- supi)orted by acts or declarations on the part of the grantor, showinfr an intention to part with the property, will in no case operate to pass the title.'- To constitute a delivery, the instrument must either pass into the power of the grantee, or some one for him, so as to be beyond the con- trol of the grantor, or the grantor must unequivocally in- dicate his intention that it shall take effect as a conveyance of the property.'' § 20(). Tlie Question of Delivery is Always one of In- tention of the Parties. — In all cases an intention that the deed shall be delivered and become effective must exist.^ And, execution, /ic/cZ to establish tlie fact that the title then passed to the son, although ten years had ehipsed before it was recorded, the father niean- Avnile keeping it as guardian. Tallnian v. Cook, 39 Iowa, 402. 1 Bryan v. Wash. 7 111. 'nyj; Reed v. Douthit, 02 111. 348. A voluntary deed may be constructively delivered. Wall v. Wall, 30 Msss. !»1. 2 Cannon v. Cannon, 26 N. J. Eq. 31U; Ward v. Ward, 2 Hayw. 22G; Burkholderv. Casad, 47 Ind. 418; Patterson v. Snell, 67 Me. 559. A deed signed and acknowledged, but found in the grantor's possession at the time of his death, will be presumed never to have been delivered. Burton v. Boyd, 7 Kan. 17. 3 Fisher v. Hall, 41 N. Y. 416; Duer v. James, 42 Md. 492; Iluey v. Iluey. 65 Mo. 689; Healdsburg v. Ballhache, 65 Cal. 327. Evidence of the grantor's acts, or decbirations, in accordance with the effect of his conveyance held competent presunjptive evidence of its delivery. Tip- ton V. Ross, 10 Ohio. 273. See Prutsmau v. Baker, 30 AVis. 644; Gage v. Gage, 36 Mich. 229; Bailey v. Bailey, 7 .fones (X. C), L. 44. Where a conveyance was subscribed and sealed by the grantor, attested ]>y the witnesses under a clause stating that it had been sealed and de- livered in their presence, but the grantee was not then present and re- mained ignorant of the existence of the deed until long after the death of the grantor, and the grantor continually remained in the possession of the premises described until his death, when the deed Avas found among his i)apers, it was held that such a conveyance was wholly inop- erative to pass the title, and no delivery thereof to the grantee could be presumed or inferred from these facts. Fisher v. Hall. 41 N. Y. 416. But a deed delivered by a grantor to a third person, with direction to hand it over to the grantee immediatelj- after his death, nuiy be valid. Crooks V. Crooks, 34 Ohio St. 610; Latham v. Udell, 38 Mich. 238. See Infra, §§ 208-211. •« Steele V. Miller, 40 Iowa, 402; Burkholder v. Casad, 47 Ind. 418; ART. V. DELIVERY OF A DEED. 18^ therefore, it is essential that the deed be understood by the parties to be completed and ready for delivery, in order to have the mere placing of it in the hands of the grantee or his agent construed into a delivery.^ Nor is the mere de- livery of a deed to the grantee for purposes of inspection, or to hold while he shall consider whether he will accept it,, a valid delivery.- Where a deed was placed in the hands of a third person for safe keeping, who, without the knowledge of the grantor, delivered it to the grantee, it was held not to be a sufficient delivery ." And if a deed duly executed in all respects except delivery be stolen from the grantor, it passes no title, even to a 5o?i«^f?e purchaser from the grantee named in the deed.* Though, if the grantor has been guilty of negligence in having made,, signed and acknowledged the instrument, and in suffering it to be kept or deposited in a place where he knew the party named as grantee might, if so disposed, readily and without trouble obtain such wrongful possession of it, and so be enabled to deceive and defraud innocent third persons, he will be estopped from setting up his title as against a Stiles V. Probst, 69 111. 382; Brittain V. Work, 13 Neb. 3-47; Jordan v. Davis, lUS 111. 336. The manual delivery of a deed will not be regarded as a full and complete delivery, when it is mutually understood at the time, between grantor and grantee, that such a deed is not to become operative until some future event. Arthur v. Anderson, t) S. C. 234; Frazer v. Davie, 11 S. C. 5G. But where a party acknowledges before a proper officer the execution of a deed made by him and allows the officer to hand the same to the grantee without objection, this will amount to a consent to its delivery. Hewitt v. Clark, iJl 111. COS. 1 Stiles V. Probst, 69 111. 382; Coulou v. Grace (Minn.), 30 X. W. Rep. 880; Hill v. McNichol (Me.), 13 Atl. Pep. 883. But if intended to pass the estate, the mere fact that the parties supposed the deed would not take effect until recorded, will not prevent its taking effect. Hinchliff V. Hinmau, 18 Wis. 130; Walker v. Keufro, 26 Tex. 142. 2 Graves v. Dudley, 20 X. Y. 76; Ford v. James, 2 Abb. X. Y. Ct. App. Dec. 159; Hoag v. Owen, 60 Barb. 34. And cannot operate as a contract or memorandum of an agreement to convey the land, within the statute of frauds. Comer v Baldwin, 16 Minn. 172. 3 Barlow V. Hintou, 1 A. K. Marsh. 97. Or upon performance of speci- fied condition, its delivery before condition has been performed is inef- fective. White V. Core, 20 W. Va. 272. ■* Tisher v. Beckwith, 30 Wis. 55. 190 CONVEYANCING. CH. III. bona fide purcluiser for value, uiidcr such decd.^ Where a deed has been obtained surreptitiously, and placed upon record by the orrantee, nothing short of an explicit ratifica- tion of the deed, or such an acquiescence, after a knowl- edge of the facts, as would raise a presumption of express ratification, can give it validity.^ But if a deed is in fact delivered, even though it be in consequence of false and fraudulent pretenses, and the gi'antee conveys to an innocent thii-d i)arty, it passes a good title.3 § 207. Tlie Delivery must be Known and Assented to by the Gri-antee. — There must not only be an assent on the part of the grantor to deliver the deed, but also on the part of the grantee to accept it."* Therefore, a deed cannot become operative by delivery after the death of either of the par- ties.^ That is, there must be an actual or constructive de- livery during the life of the grantor, or a deliver}^ after his death which takes effect by relation at some period during his life." "Where a conveyance was executed to a grantee !^ 1 Ihid. Where a husband made a deed of lands to his wife for the pur- pose of showing it to a creditor, to obtain an extension of time, and did not deliver it corporalh' to the wife, but placed it with other papers in their house, which were accessible to her, and she afterwards placed it on record, it was held a good delivery of the deed to her. Gage v. Gage. 36 Mich. 229. 2 Hadlock v. Iladlock, 22 111. :5S4. 3 Berry v. Anderson, 22 Ind. 41. * Commonwealth V.Jackson, 10 Bush, 424; Woodbury v. Fisher, 20 Ind. 38!); Cooper v. Jackson, 4 Wis. 537; Comer v. Baldwin, 16 Minn. 172; Mitchell V.Ryan, 3 Ohio St. 377. When a conveyance describes the land incorrectly, :uid the land is afterwards sold under execution against the grantee, the subsequent delivery of a correct deed to the purchaser at execution sale is not constructive delivery of such deed to the grantee, so as to pass the title through him, unless he voluntarily accepts the deed. Rogers v. Carey, 47 Mo. 232. 5 Wiggins V. Lusk, 12 111. 132; Jackson v. Leek, 12 Wend. 107; Fisher v. Hall, 41 X. Y. 423; Fay v. Richardson, 7 Pick. !J] ; Miller v. Physick, 24 Ark. 244: Otto v. Doty, 01 Iowa, 23. See § 211. « That a deed is not to be delivered or take effect uiUil after the grant- or's death, will not prevent its taking effect at that time. Howard v. ART. V. DELIVERY OF A DEED. 191 who died without knowledoje of its having been made, it was held not to be a sufficient acceptance, notwithstanding the deed had been executed in pursuance of a prior agree- ment between the parties.^ § 208. Delivery to a Third Person for the Grantee's Use. — It is not essential to the valid delivery of a deed that the grantee be present. The delivery may be made, at his request, to some person for him.- For example, where the grantor made a deed which the grantee saw, and the grantor agreed to put it on record, and did so, but in the absence of the grantee, and without formal delivery, it was held to be a good delivery, the register being by such assent con- stituted the agent to accept the delivery.^ And if a delivery absolute as to the o:rantorbe made to an unauthorized third person, for the grantee's use, and the grantee accepts it, it is a good delivery, provided the rights of third persons have not intervened.* But it has been held that the delivery of conveyance to an attorney employed by the grantee to ex- amine the title, and who is not the agent or attorney in fact of the grantee, is not a deliver}' to the grantee if the latter refuses to construe it,° The delivery of a deed by the Patrick, 38 Mich. 796. For the qualification of this doctrine see Infm^ § 208, et seq. 1 Jackson v. Phipps, 12 Johns. 421. 2 FeAvell V. Kessler, 30 lud. 11)5; Hatch v. Bates, 54 Me. 136; Hatch v. Hatch, 9 Mass. 307; Turner v. Whidden, 22 Me. 121; Guest v. Beeson, 2 Houst. 246; Morrison v. Kelly, 22 HI. 610; Cincinnati R. R. Co. v. Hiff, 13 Ohio St. 235; Stephens v. Huss, .54 Pa. St. 20; Ecknian v. Eckman, 55 Id. 269. The title will pa^s although the deed be lost while in such hands. Henrichsen v. Hodgen, 67 HI. 179. 3 Cooper V. Jackson, 4 Wis. 537. The delivery of a deed to the grantee, after its record, by the recording officer, under the direction of the grantor, is a good delivery. Kemp v. Walker, 16 Ohio, 118. * McPherson v. Featherstone, 37 Wis. 632; Bell v. Farmer's Bank, 11 Bush, 34; Brown v. Austen, 35 Barb. 341; Stewart v. Weed, 11 Ind. 92; Guard v. Bradley, 7 Ind. 600; Marsh v. Austin, 1 Allen, 235; Bennett v. Waller, 23 111. 97. Putting a deed in the post office, addressed to the grantee, held a sufticient delivery. Kemp v. Walker, 16 Ohio, 118. » Carnes v. Piatt, 7 Abb. Pr. (X. S.) 42. And see Hale v. Joslin, 134 Mass. 310; Bj'ington v. Moore, 62 Iowa, 470; Hammerslough v. Cheat- ham, 84 Mo. 13. 192 CONVEYANCING. CH. III. grantor to the officer taking the acknowledgment, with un- qualified instructions to deliver it to the grantee whenever he calls for it, followed by an acceptance of the title to the laud conveyed, operate to invest the grantee with the title to the land, although for convenience merely the grantee permits the ofliccr to retain possession of the deed.^ So if, after a deed has been recorded for him, the grantee as- sents to it, it becomes a good delivery.- But an}' lien or attachment })laced upon the land as the property of the grantor, before such assent, will hold.^ § 201). In Respect to tlie Time at which the Title Passes, in the cases mentioned in the preceding section, the authori- ties are not uniform. One class of cases hold that the de- livery of a deed to a stranger or the recording officer passes the title, eo instanii, on the ground that the la.v presumes an acceptance by the grantee of that which is beneficial to him; but that, if the grantee does dissent, the title does not pass, or revests in the grantor.^ It seems that where a grant is a pure unqualified gift, the presumi)tion of ac- ceptance can only be rebutted by proof of actual dissent,* especially if the grantees are infants, or persons under disa- 1 Black V. lloyt, 33 Ohio St. -iO;!. 2 Hedge v. Drews, 12 Pick. 141 ; Masterson v. Cheek, 23 111. 72 ; Pretty- man V. Goodrich, Id. 330: Jaeksou v. Cleveland, I.t Mich. 94: IJoody v. Davif-, 20 X. H. 140; Carver v. Jackson, 4 Pet. 1 ; Kathbun v. Kathbuu, 6 Barb. 98; Suider v. Lackenour, 2 Ired. CS.C.) Ey. 3G0; Kemp v. Walker, 16 Ohio, 118. 3 Denton v. Perry, 5 Vt. 382; .Johnson v. Farley, 45 X. H. oO.^; Derry Bank v. Webster, 44 X. II. 2G4; Elmore v. :\Iarks, 39 Vt. 538, 542; Jack- son v. Cleveland, 15 ^lich. 101; Parmelee v. Simpson, 5 Wall. (U. S.) 81 ; Baker v. Haskell, 47 X. H. 479. But see Tompkins v. Wheeler, 16 Pet. 119; Merrills v. Swift, 18 Conn. 257, where an assignment for the benefit of creditors took precedence of an attachment, though not actu- ally accepted until after attachment made. ■• Stewart v. Weed, 11 Ind. 92; Marsh v. Austin, 1 Allen. 235; Bennett V. Waller, 23 111. 97; McLean v. Xelson, 1 Jones, (X\ C) L. 396; Brown V. Austen, 35 Barb. 341; Rogers v. Carey, 47 Mo. 232. * Mitchell V. Ryan, 3 Ohio St. 377. Assignments for the benefit of creditors come within this rule. Wilt v. Franklin, 1 Binn. 502. ART. V. DELIVERY OF A DEED. 193 bility to assent. 1 But as to whether this presumptiou of acceptance can ever be raised as a rule of law, except in the case of infant grantees, and such as are under some disa- bility to accept, has been gravely questioned by excellent authority.^ Upon principle, and according to the weight of authority, a deed cannot become effective by delivery until some act has been done by the grantee equivalent to accept- ance.^ " It is essential to the validity of a deed, if not actually delivered to the grantee, or his agent authorized to receive it, to prove notice to him of its existence, and such additional circumstances as will afford a reasonable i)re- sumption of his acceptance of it."* In this case the court held that a deed delivered to the registering officer, or an unauthorized third person, and subsequently accepted by the grantee, will take effect, as between the parties, from the time of the first delivery, but as to persons who have acquired rights in the property before the date of the actual acceptance, it is not to be regarded as taking effect until the latter date.^ § 210. The Doctrine of Relation. — There is a rule, ap- plicable to cases where the transaction is not complete in itself, but depends upon divers concurrent acts, by which the several parts or ceremonies necessary to complete a conveyance are taken together as one act, and operate from the original act by relation.^ As an illustration, the case of sheriff's sales upon execution, may be referred to, where no deed is delivered until a subsequent period, during which 1 Rivard v. Walker, 39 111. 413 ; Spencer v. Carr, 45 N. Y. 407 ; Cecil v. Beaver, 28 Iowa, 241. 2 3 Washb. on Real Prop., 4th ed., 284, 292, and cases cited. 3 Hulick V. Scovil, 9 111. 159; Bell v. Farmer's Bank, 11 Bush, 34; Townson v. Tickell, 3 B. & Aid. 36; Young v. Guilbeau, 3 Wall, 636, 641 ; Jackson v. Phipps, 12 Johns. 422; Wilsey v. Dennis, 44 Barb. 359; Fonda v. Sage, 46 Barb. 123; Foster v. Beardsley Co., 47 Barb. 513. * Bell v. Farmer's Bank, 11 Bush, 34. « Ibid. ^ Johnson V. Stagg, 2 Johns. 520; Jackson v. McCall, 3 Cowen, 75; Crowley v. Wallace, 12 Mo. 143. (13) 1*J4 CONVEYANCING. CII. III. time the judgment debtor may have died, and where an ex- ecution title rehites back to the time of the attachment creating the lien, which is perfected by the sale under such execution, and cuts out intermediate conveyances.^ There are also many other cases in which a conveyance will be deemed to relate back to the inception of title, and render valid any intermediate disposition of the land by the grantee of such conveyance. 2 On the other hand, "itisa general rule with respect to the doctrine of relation, that it shall not do wrong to a stranger. As between the same parties, it may be adopted for the advancement of justice."^ § 211 . Effect of a Subsequent Ratification. — A delivery may be made good by the subsequent assent of the grantee in the deed, upon the principle that "every subsequent ratification has a retrospective effect, and is equivalent to a prior command."* Thus, a deed delivered to a stranger for the grantee's use, without his knowledge, may become effectual the moment it is assented to by him, though the grantor may have deceased before such assent.^ Where a father made a deed to his son and placed it in the hands of a stranger to be delivered to the grantee on the grantor's death, all of which being done, it was held that the estate vested in the grantee from the time of the first delivery .*' 1 Smith V. Allen, 1 Blackf. 22; J'ierce v. Hall, 41 Barb. 142; Heywood V. Ilildreth, 9 Mass. 393; Taylor v. Kobinson, 2 Allen, 564. 2 .Johnson v. Stagg, 2 .lohns. i")20. 3 Van Court V. Moore, 2(5 Mo. 92; Jackson v. Bard, 4 .Johns. 230; Pierce v. Hall, 41 Barb. 142. * Co. Litt. 207, a; Story on Agency (7th ed.),102; Broom's Leg. Max. (3d London ed.) 71"); 2 Bouv. Inst. 25; 4 Id.'H]; Kingsbury v. Burnside, 58 111. :{10. The ratification may be indicated by any words or acts of the grantee which show a clear intention on his part that the deed shall be considered as having been properly executed and delivered, and as conveying the title to the property. Tucker v. Allen, 16 Kas. 312 ; Gould V. Day, 94 U. S. 405. ■'• Mather V. Corliss, 103 Mass. 568; Stephens v. Rinehart, 72 Pa. St. 434; Kingsbury v. Burnside, 58111. 310. "Foster v. Mansfield, 3 Mete. 412; Hatch v. Hatch, 9 Mass. 307; Stephens v. Huss, r,-i Pa. St. 26; Brown v. Brown, 1 Woodb. & M. 325; Stephens v. Rinehart, 72 Pa. St. 440; Howard v. Patrick, 38 Mich. 796; ART. V. DELIVERY OF A DEED. 195 Though, for a subsequent acceptance to give validity to a deed, the delivery must be to the grantee's use, and must be absolute, and continuing in its nature; such as leaving a deed on deposit, to be accepted by the grantee at his elec- tion.^ The sending of a deed by the grantor to a stranger, or depositing it in a [jublic office, is not a delivery to the grantee, unless it is sent or deposited to his use.^ When a deed is delivered to a grantee, no words are necessary, as the law presumes in such case that it is for his use ; but when delivered to a stranger, there is no such presumption, and the intent on the part of the grantor to make it his effectual deed thereby, must be shown by evidence beyond such delivery.^ Some of the cases go to the extent that the deposit must be absolute as to the grantor, and beyond his power to recall. In Cook v. Broion,'^ it was said: "There must be a time when the grantor parts with his dominion over the deed, else it can never have been delivered. So long as it is in the hands of a depositary, subject to be re- called to the grantor at any time, the grantee has no right to it, and can acquire none; and if the grantor dies with- out parting with his control over the deed, it has not been delivered during his life, and after his decease no one can have the power to deliver it. The depositary must have had such a dominion over the deed during the life-time of the grantor as the latter could not interfere with, in order to have any control over it after his decease." The only Crooks V. Crooks, 34 Ohio St. 610. And the delivery thereof by such third person before the grantor's death, in ])reach of the trust, is suffi- cient to vest the title at the death of the grantor. Wallace v. Harris, 32 Mich. 380. 1 Hulick V. Scovil, 9 111. 177 ; 1 Wood on Conv. 240; Jackson v. Dunlap, 1 Johns. Oas. 114; Jackson v. Bodle, 20 Johns. 187; Church v. Gilmau, 15 Wend. 656, 660; Buffum v. Green, 5 N. H. 71; Johnson v. Farley, 45 N. H. 505. 2 Elsey v. Metcalf, 1 Denio, 323. 3 Souverbye v. Arden, 1 Johns. Ch. 255; Church v. Gilnian, 15 Wend. 656; 1 Wood on Conv. 195; Elsey v. Metcalf, 1 Denio, 323; Carr v. Hoxie, 5 Mason, 60; Miller v. Physick, 24 Ark. 244. < 34 N. H. 460. U)6 CONVEYANCING. ClI. Ill, test evidence of a delivery is the fact that the grantor has divested himself of all dominion and control over the con- veyance.^ But in Beldeii v. Carter,'^ it api)eared that A., having signed, sealed and acknowledged a deed, conveying a tnicl of land to B., took up the deed in the absence of B., and said to C, "Take this deed and keep it. If I never call for it, deliver it to B., after my dcatii ; if I call for it, deliver it up to me." C. took the deed; A. died soon afterwards, having never called for it, and C delivered it over to B. It was held that this was the deed of A. presently; that C. held it in trust for B. ; that the title be- came consummate in B. by the death of A., and that the deed took effect by relation from the time of the first de- livery. These instances will serve to illustrate the diversity of opinion on the subject. A delivery after the death of a grantor, to become effective, must be made by some person holding the deed as trustee, or having the same in his possession as an escroiv.^ "The mere lodgment of a deed, properly executed and acknowledged by the grantor, in a ])lace to which the grantee has access, and from which he can, without hindrance, transfer it to his own possession, with intent on the part of the grantor that the grantee may, after his death, take it, and have it recorded, and then be- come the owner of the land, does not constitute delivery of the deed; and the taking and recording of the deed after the death of the grantor, is ineffectual to perfect it." * § 212. Eftect of Registration in Respect to Delivery. — Registration of a deed will not supply the place of delivery.^ Though if the recording is intended as a delivery and is n»rutsman V. Baker, 30 Wis. G44; Baker v. Haskell, 47 N. H. 479; riiillip.s V. lloustou, 5 Jones, L. 302; Bailey v. Bailey, 7 Joues, L. 44; Deordorff v. Forman, 14 Am. L. Reg. 545; Brown v. Brown, 06 Me. 31G. 2 4 Day, GO. And see Stone v. Duvall, 77 111. 475. 3 Wheelwright v. Wheelwright, 2 Mass. 447. ■* Iluey V. Huey, 05 Mo. 080. But see Gage v. Gage, 30 Mich. 229. 5 Berkshire, etc. Ins. Co. V. Sturgis, 13 Gray, 177; Jones v. Bush, 4 Ilarr. (Del.) 1 ; llawkes v. Tike, 105 Mass. 500; Mayuard v. Maynard. 10 Mass. 4.50; Iladloek v. Hadlock, 22 111. 384; Patterson v. Snell, 07 Me. 559; lleudriiks v. Kasson, 5J Mich. 575. ART. V. DELIVERY OF A DEED. 1U7 known to the j^rantee and he assents to it, the deed will take effect from the date of his assent. ^ And where the grantor causes the deed to be recorded, this may furnish presumptive evidence of his intention to part with the title thereby conveyed,^ and is a sufficient delivery to en- able the grantee to hold the land as against the grant- or.^ Where a deed to a child was absolute in form and beneficial in effect, and the grantor and father voluntarily caused the same to be recorded, it was held to be a sufficient delivery, and that the title passed therebv.* The record of a deed, showing that it has been duly executed and acknowledged, raises a legal presump- tion that it has been delivered.^ But this presumption may be controlled by other evidence.^ For example, it has been held that such presumption is repelled, when it appears that the grantee never was in possession, and no claim was made under the deed; that the land was improved and valuable only for its use and occupation ; and that the grantor, his heirs and representatives, have remained in undisturbed possession for a period of more than forty years without recognizing any rights under the deed. In such case a con- trary presumption arises, either that the deed was never de- 1 Barns v. Hatch, 3 N. H. 304; Jackson v. Richards, 6 Cow. 617; Elsey V. Metcalf, 1 Denio, 326; Parker v. Hill, 8 Mete. 447; Oliver v. Stone, 24 Ga. 63; Hedge v. Drew, 12 Pick. 141 ; Boody v. Davis, 20 N. H. 140. 2 Kerr V. Birnie, 25 Ark. 22.5; Hammell v. Hammell, 19 Ohio. 17; Boardman v. Dean, 34 Pa. St. 252; Metcalfe v. Brandon, 60 Miss. 685; Alexander v. Alexander, 71 Ala. 295; Walton v. Burton, 107 111. .54. Bnt held that recording alone will not support presumption of delivery. Gifford V. Corrigan (X. Y.), 11 N. E. Rep. 498. And in a late Maine case it was held that neither the words signing, sealing and acknowl- edging, nor the fact that it has been recorded, afford any evidence of its delivery. Hill v. McXichol, 13 Atl. Rep. 833. 3 Kerr v. Birnie, 25 Ark. 225; Moore v. Giles, 49 Conn. 570. 4 Cecil V. Beaver, 28 Iowa, 241; Folk v. Varn, 9 Rich. (S. C.) Eq. 303. 5 Kille V. Ege, 79 Pa. St. 15; Bulkley v. Buffington, 5 McLean, 457; Bensley v. Atwill, 12 Cal. 231; Welborn v. Weaver, 17 Ga. 267; Warren V. Jacksonville, 15 111. 236; Bullitt v. Taylor, 34 Miss. 70S; Boardman v. Dean, 34 Pa. St. 252; Rigler v. Cloud, 14 Pa. St. 361. 6 McGraw v. McGraw (Me.), 9 Atl. Rep. 846. 198 CONVEYANCING. CH. III. livered or that there was a reconveyance.^ And registra- tion will not amount to delivery, there not appearing an assent on the part of the grantee, or any knowledge that the deed had been executed in his favor. ^ The same rule holds where the grantee has knowledge of the deed, but his acceptance of it depends upon a condition which he has communicated to the vendor. Thus, where a committee of a private corporation agreed to purchase a tract of land for such corporation provided the purchase should be sanc- tioned by the board of directors, and the title api)roved by the legal adviser of the corporation, and the vendor exe- cuted a deed, and after notifying the corporation of his in- tention to do so, but without waiting for the sanction of the board of directors or the approval of the counsel, had the same recorded, it was held that, the acceptance of the deed by the corporation being dependent on events which never occurred, there was no delivery of the deed, and that the mere execution and recording of the deed without the sanc- tion of the corporation was not sufficient to charge the cor- poration as grantee.^ On the other hand, if a grantor ex- ecutes a deed and places it on record without the knowledge of the grantee, and then takes it and does not actually de- liver it, no subsequent assent of the grantee will give it effect, if the grantor prior to such assent had concluded not to deliver it, and continued of that mind afterwards.* But a subsequent possession of the deed by the grantee would be evidence of its delivery.'' 1 Knolls V. Bariihart, 71 N. Y. 474. ^Mayuard v. Mayuard, 10 Mass. 4;")G; Harrison v. Phillips Academy, 12 Mass. 4.5G; Denton v. Perry, 5 Vt. 382; .Johnson v. Farley, 45 N. II. 505; Derry Bank V. Webster, 44 N. H. 264; Elmore v. Marks, 39 Vt. 538; Jackson V. Cleveland, 15 Mich. 101; Parmolee v. Simpson, 5 Wall. 81; Baker v. Haskell, 47 N. H. 471); Gregory v. Walker, 38 Ala. 2C, 33. But see Tompkins v. Wheeler, 16 Pet. 119; Merrills v. Swift, 18 Conn. 257. When a deed has been once refused by the grantee, its delivery will not be presumed from its subsequent registration ; the burden is on the party asserting its acceptance. Gaither v. Gibson, Phill, (N. C.) L. 530. ^ Leppoc V. Union Bank, 32 Md. V.\V>. ■» Hatch V. Bates, 54 Me. 139; Ilawkes v. Pike, 105 Mass. 500. '' Maynard v. Maynard. 10 Mass. 450; Dawson v. Dawson, Rice Ch. 243. ART. V. DELIVERY OF A DEED. 199 § 213. Delivery Presumed from Possession of Deed. — When a deed is found in the grantee's possession, deliv- ery and acceptance are always presumed.^ Proof of the execution of a deed, added to its being in the possession of the grantee, \'& prima facie evidence that it was sealed and delivered.^ And the execution of a deed, in the presence of witnesses, is evidence from which a delivery may be in- ferred.^ § 214. Acceptance Presumed from Beneficial Nature of the Deed. — The beneficial nature of a deed is competent presumptive evidence of its acceptance ; and this is strengthened where the grantee, knowing of the deed, enters into possession under it.* In regard to the extent allowed to the presumption that a party will accept a deed because it is beneficial to him, the courts, as we have seen, are not agreed.^ But by the weight of authority it is not to be carried so far as to consider the grantee as ha v ins: accepted, until notice to him of its existence has been proved, and such additional circumstances as will afford a 1 Greeu v. Yarnall, 6 Mo. 326; Chandlery. Temple, 4 Cush. 285; Ward V. Lewis, 4 Pick. 518; Newlin v. Beard, G W. Va. 110; Cutts v. York Co., 18 Me. 190; Reed v. Douthitt, G2 111. 348; Tuttle v. Turner, 28 Tex. 759; Billings V. Stark, 15 Fla. 297; Carues v. Tlatt, 41 N. Y. Sup. Ct. 435; Roberts V. Svvearingen, 8 Neb. 363; Tnnisou v. Chaniblin. 88 111. 379; Simmons v. Simmons, 78 Ala. 365. But the presumption is the other way, where it remained in the possession of the grantor during his life- time, though it has been recorded since his death. Patterson v. Suell, 67 Me. 559. ^Sadler V.Anderson, 17 Tex. 245; Rhine v. Robinson, 27 Pa. St. 30; Houston v. Stanton, 11 Ala. 412; Sicard v. Davis, 6 Pet. 124; Black v. Thornton, 30 Ga. 361. 3 Howe V. Howe, 99 Mass. 98; Moore v. Hazeltou, 9 Allen, 102; Doe v. Knight, 5 Barn. & Cress. 671 ; Hope v. Ilarmen, 16 Q. B. 751 ; Bunn v. Winthrop, 1 Johns. Ch. 329; Scrogham v. Wood, 15 Wend. 545; St. Louis v. Wiggins Ferry Co. 88 Mo. 615. Proof of execution of a deed implies proof of delivery, unless the objection be raised at the time, during trial. Van Rensselaer v. Secor, 32 Barb. 469. * Stewart v. Weed, 11 Ind. 92; Lamptonv. Uslier. 7 B. Mon. 57; Tib- bals V. Jacobs, 31 Conn. 428; Renfro v. Harrison, 10 Mo. 411; Church V. Oilman, 15 Wend. 656. 5 Ante, § 209. 200 CONVEYANCING. CH. III. reasonable presumption of his acceptance of it.^ Volun- tary conveyances, made to infants and persons under disa- bility, and assignments made by debtors in embarrassed circumstances, for the benefit of creditors, may be con- sidered, in some degree, as forming exceptions to the general rule, that an actual acceptance is necessary .^ § 215. Relationship between Grantor and Grantee, Evidence of Acceptance. — Tlie relation of the party to whom the deed is delivered, to the estate and the grantee, may be such that acceptance will be implied. For instance, where a person made and executed a deed to a minor, and placed it in the hands of her father, to be retained by him until she should arrive at sufficient discretion to take care of it, the court held that an estate was created in her at the time the deed, was delivered to her father, he being her natural guardian.'^ § 21G. Delivery of Deed to Married AVomen. — If a deed be made to a married woman, and her husband dis- sents, it is void as to her, at common law.* Yet, it is stated, that if the husband expressly assents thereto, the wife or her heirs may, after his death, waive the same.^ Thou"-h, if the erant be to husband and wife, and he assents, she cannot, after his death, avoid the deed by verbal dis- claimer of the title. "^ § 217. Delivery of Deed to Several Grantees. — If there are several grantees in a deed, and the grantor delivers 1 Commonwealth v. Jackson, 10 Bush, 424; Bell v. Farmer's Bank, 11 Bush, 35; Prutsman v. Baker, 30 Wis. 644; Townsend v. Tickell, 3 Barn. & Aid. 36; Younge v. Guilbeau, 3 Wall. 636; Jackson v. rhipps, 12 .Johns. 422; Rogers v. Gary, 47 Mo. 232; Fonda v. Sage, 46 Barb. 100; llulick v. Scovil,9 111.159. But see Myrover v. French, 73 N. C. 609. 2 3 Washb. on Real Prop., 4th ed., 298; Rivard v. Walker, 39 111. 413 ; Robinson v. Gould, 26 Iowa, 93; Cecil v. Beaver, 28 Iowa, 241. As to assignments for benefit of creditors, see Merrills v. Swift, 18 Conn. 257; Wilt V. Franklin, 1 Binn, 502; Tompkins v. Wheeler, 16 Pet. 119. a Bryan v. Wash, 7 111. 557. •• 1 Wood on Conv. 240; Melvin v. Props., etc., 16 Pick. 167. 5 Co. Litt. 3, a. 6 1 Wood on Conv. 240. ART. V. DELIVERY OF A DEED. 201 it to one of them, saying nothing of the others, it is no de- livery as to theni.i It nuiy, however, be delivered to one on one day and to another on another day, and thereby take effect as to all."^ Where a grantee's estate is defeasible on an event, on the happening of which the estate is to go over to others, a delivery of the deed to the first grantee is suffi- cient for all who take interest under it.'' § 218. Delivery by Several Joint Owners. — Where sev- eral joint owners of land propose to convey a full title thereto, and all but one of them join in executing a deed of conveyance, and they deliver such deed to a third party to obtain the signature of the other joint owner, and then to deliver it to the grantee, and such joint owner refuses to sign it, the delivery is not complete as to the joint owners who execute the deed, and no title passes by it.* § 219. Delivery of Deed by or to a Corporation. — The deed of a corporation is generally delivered by their com- mon seal being attached to it, with the consent of the cor- poration. But if, when executing it, they appoint an agent to deliver it, or make other similar provisions, it will not become their deed until formally delivered.-^ Delivery of a deed to the authorized agent of a corporation, is delivery to the corporation, and his acceptance is the acceptance of the corporation. •" § 220. Must be Completely Executed before Deliv- ery.^ — A deed must be completely executed before it can take effect as such by delivery." But an imperfectly exe- cuted deed may operate as a contract of sale from the grantor, so as to create an equitable estate in the purchaser, 1 Hauuah v. Swaruer, 8 Watts (Pa.), 9. 2 1 Wood ou Conv. 191. 3 Folk V. Varu, 9 Rich. (S. C.) Eq. 303. •• Overman v. Kerr, 17 Iowa, 485; Tewkslmry v. O'Connell, 21 Cal. 01. But see Colton v. Seavey, 22 Cal. 496; Tustiu v. Faught, 23 Cal. 237. 5 1 AVood on Conv. 194; Com. Dig. Fait, a 3. ^ Western R. R. Co. v. Babcock, 6 Mete. 356. 7 McKee v. Hicks, 2 Dev. (X. C.) L. 379; Williams v. Sprigg, 6 Ohio St. 585; Brevard V. Neely, 2 Sueed (Tenu.) 164; rt«eed. — As a general i)roposition it may be said, that any party who is the absolute owner of an estate and can him- self execute a conveyance, may authorize another by power of attorney, in writing, to convey it for him. But married women, infants, lunatics and other persons not sui juris, are not, in general, capable of appointing an attorney .^ Videau V. Grifflu, 21 Cal. 389; Eowe v. Ware, 30 Ga. 278; Maus v. Worthing, 4111. 26 ; Rhode v. Loutham, 8 Blackf . 413 ; McMenty v. Frank, 4 T. B. Mon. 391; Wheeler v. Nevins, 34 Me. 54; Shnetze v. Bailey, 40 Mo. G9; Smith v. Perry, 29 X. J. L. 74; Kime v. Brooks, 9 Ired. (N. C.) L. 218; Gordon v. Bulkeley, 14 Serg. &R. 331; Smith v. Dickinson, 6 Humph. 261. Although a deed may be ineffectual as a conveyance of the legal title because the authority of the agent was not given by a writ- ten instrument vinder seal, it will be upheld in chancery as evidence of a contract to sell. Morrow v. Higgins, 29 Ala. 448; Shuetze v. Bailey, 40 Mo. 69. By statute in most of the States a power of attorney to convey real estate must be executed, acknowledged or proved and recox'ded in all respects like deeds. Stimson's Amer. Stat. § 1670. 1 Gage V. Gage, 30 N. H. 420; Clark v. Graham, 6 Wheat. .577; Butter- tield V. Beall, 3 Ind. 203. A power of attorney to convey lands should be proved or acknowledged and left to be recorded in the same manner as the conveyance itself. Moore v. Farrow, 3 A. K. Marsh. (Ky.J 41; Taylor v. McDonald, 2 Bibb (Ky.), 420; Montgomery v. Dorian, 6 N. H. 250. But acknowledging and recording have been held not to be neces- sary in Georgia, and by a later case in Indiana. Tenant v. Blacker, 27 Ga. 418; Moore v. Pendleton, 16 Ind. 481. The deed will be good against the grantor and his heirs, and create a good title against strangers, though the power is not registered. Walk. Am. Law, 365. 2 Snyder V. Sponable, 1 Hill, 567; Ouldsv. Sansom,3 Taunt. 261; Bank of Louisville v. Gray (Ky.), 2 S. W. Eep. 168. "'Infants and married women are incapable, except under special circumstances. Thus, for example, an infant may authorize another person to do any act which is for his beuetit, but he cannot authorize him to do any act which is to his (14) 210 CONVEYANCING. CIl . 111. Thoujrh, where it is provided by statute that a married woman may hold real estate and convey the same in the same manner and with like effect as if unmarried, and her deed does not require to be acknowledged by her in person, privily and apart from her husband, no reason is perceived why she may not execute a power of attorney under seal, and empower such attorney to convey in her name.^ And in many of the States married women are expressly author- ized by statute to convey their estates or relinquish their dower by an attorney duly authorized thereto. - § 232, Persons Acting' in Fiduciary or Official Capac- ity. — Generally speakino;, i)ersons acting in an official or fiduciary cai)acity cannot ai)point an attorney to act in their stead. The principle is that a delegated authority cannot be again delegated. The principal generally employs the agent from the confidence he reposes in him, and it would be a violation of the trust to transfer the authority to another without the express consent of the party who cre- ated the power. ^ Therefore, an attorney has no right to delegate his authority, unless the instrument b}' which he is appointed expressly authorizes the substitution.* It is quite common in the execution of powers of attorney, to insert a clause authorizing the attornej^ to substitute one or more attorneys under him to do the act and to retain the power prejudice. So, in regard to married women, ordinarily they are in- capable of appointing an agent or attorney. * * * gut ■s\-here a married woman is capable of doing au act, or of transferring property or rights with the assent of her husband, then, perhaps, she may, with the assent of her husband, appoint an agent or attorney to do the same." Story on Agency, 7th ed., § 6. 1 Blood v. Humphrey, 17 Barb. GGO. And see Story on Agency, 7th ed., § G. 2 As to Texas see Wilson v. Simpson, 4 S. W. Rep. 839. 3 Coke, 2d lust. 597; Story on Agency, § 13; 2 Bouv. Inst, /t, 1300; Emerson v. Providence Hat Mfg. Co., 12 Mass. 241 ; Lynn v. Burgoyne, 13 B. Mon. 400; Bocock v. Pavey, 8 Ohio St. 270; Gillis v. Bailey, 21 N. H. 149. One having a bare authority coupled with a trust, cannot act by attorney. Black v. Erwiu. Harp. (S. C.) 411. ^ McCormick v. Bush, 38 Tex. 314; Commercial Bank v. Norton, 1 Hill, :)()'>. AET. \I. POWERS or ATTORNEY. 211 of revocation. A person so appointed is the attorney of the principal, and not of the attorney who appointed hini.^ § 233. AVho may Act as an Attorney to Execute a Deed. — Many persons disqualitied from acting for them- selves, such as infants, aliens, married women and others, may yet act as agents in the execution of a naked authority.^ The execution of such an authority can be attended with no manner of prejucMce to persons under the disability of infancy or coverture, nor to any other persons, who by law may claim any interest under such incapacitated or disabled person after their death. ^ A feme covert may even be an attorney for another to make livery to her husband upon a feoffment ; and a husband may make such livery to his wife ; although they are generally deemed but one person in law.* And the wife may also act as the agent or attor- ney of her husband, with his consent, and, as such attorney, bind him by her acts.^ But, though she is generally com- petent to act as the agent or attorney of a third person, it is doubtful whether she can do so against the express dis- sent of her husband, as such agency may involve duties and services inconsistent with those which appertain to her peculiar relation to her husband and family.^ Infants of tender years, and persons non compos mentis, cannot act 1 Burrell v. Letson, 1 Strobb. (S. C.) 239. Where an attorney to sell land, with the power of substitution, appointed a substitute, who made sale accordingly, it was held that the former could not recover the money in an action in his own name. Hutchins v. Gilman, 9 X. H. 359. Where M. gave J. a power to sell lands, with power of substitution, J. executed a power to C. to sell the same in J.'s name, and signed it with his own name, not referring to his principal M., C. made a deed as attor- ney of M. Held, invalid, as C. was not appointed Mi's attorney. Stinch- comb V. Marsh, 15 Gratt. (Va.) 202. 2 Co. Litt. 252; Story on Agency, § 7; Livermore on Agency, 32. 3 Bacon, Abridg., Authority, B. •* Prestwick v. Marshall, 7 Bing. 565; Hopkins v. Mollinieux, 4 Wend. 465. 5 Bacon, Abridg., Authority, B.; Co. Litt. 112; McKinley v. McGregor, 3 Whart. 369; Felker v. Emerson, 16 Vt. 653; Edgerton v. Thomas, 9 N. Y. 40. ^ Story on Agency, § 7. 212 CONVEYANCING. CH. III. as agents or attorneys, for the reason tliat they have no discretion or judgment to exercise in favor of others, any more than they have for themselves.^ § 234. All Authority Conferred upon Several Persons cannot be Executed by a Part of thoiu, unless the instru- ment conferring the power shows that such was the inten- tion.^ But if given to several persons "jointl^^ or severally," either of them can execute the authority. And if given to them, or the survivors or survivor of them, the death of one or more, so long as one remains, will not end the power. But upon the death of one, the trust does not survive to the other, unless such a i)rovision be inserted in the dced.^ The foregoing rules apply as between private individuals. In matters of public concern it is generally provided that the surviving: executor or administrator, when the grant is made to several, may execute the power. § 235. Powers of Attorney are Strictly Construed. — In construingthe authority conferred by a power of attorney, the intentions of the parties are to be regarded.* But all powers of attorney receive a strict interpretation, and the authorit}^ is never extended by intendment or construction beyond that which is given in terms, or is absolutely neces- sary for carrying the authority into effect ; and that author- ity must be strictly pursued.'' A party dealing with an agent is chageable with notice of the contents of the power under which he acts, and must interpret it at his own peril. Any act varying from the terms of this power is void.^ Thus, a power to sell property on a certain day named, gives no authority to sell it on any other day.' ^ Lyon V. Kent, *45 Ala. G56. 2 Co. Litt. 181 h; Green v. Miller, 6 Johns. 39; Franklin v. Osgood, 14 Johns. 553; White v. Davidson, 8 Md.lGO; Sinclair v. Jackson, 8 Cowen, 543; Cedar Rapids, etc. R. Co. v. Stewart, 25 Iowa, 115. 3 Boone v. Clarke, 3 Cranch C C. 389. * Marr v. Given, 23 Me. 55. » Geiger v. Bolles, 1 Thomp. & C. (X. Y.) 129; Brantley v. Southern Life Ins. Co., .53 Ala. 5.54. 6 Sanford v. Handy, 23 Wend. 260; Nixon v. Hyserott, 5 Johns. 68. 7 Bliss V. Clark, IG Gray, CO.: ART. VI. POWERS OF ATTORNEY. 213 § 236. Authority to Execute a Deed must be Express and Special. — Thus an ag{Mit to "sell" land, has not, as such, power to convey ; he may bind his principal to convc}^ but cannot himself convey, unless authorized by a power of attorney duly executed. ^ So, the (general agent of a cor- poration is not authorized, without a special power, to trans- fer by deed the real estate of the company.^ A power given in a power of attorney " to attend to all business affairs appertaining to real or personal estate," was held too indefi- nite to sustain a transfer of real estate.-^ And a power " to grant any and all discharges by deed or otherwise, both real and personal, as fully as the principal might do," was con- strued not to enable the agent to convey by deed of war- ranty the real estate of his principal.* But an authority from the directors of a bank to a committee, "to convey land," was held to authorize the agent to execute a deed and aflix the corporate seal thereto.-^ And a power to transact all of the constituent's business " of every kind and de- scription, to collect and receipt for all moneys due and owing to him, and to sell and dispose of all his property," was held to authorize the conveyance of the propertv by deed in trust to secure and pay off certain creditors and sureties of the constituent.*^ So, a power of attorney which authorizes a conveyance to be made " in as full and ample a manner as the principal could execute," authorizes a deed to be made by the attorney with covenants of general war- ranty.^ And where a purchaser of land constituted an at- 1 Force v. Dutcher, 18 N. J. Eq. 401. And see Tharp v. Brenneman, 41 Iowa, 251. 2 Stow V. Wyse, 7 Conn. 214. 3 Lord V. Sherman, 2 Cal. 498. Power to attend to the principaPs busi- ness generally, or " to act for him .with reference to all business," does not authorize the agent to sell real estate of his principal, unless neces- sary and proper to conduct the business to which the agency applies. Coquillard v. French, 19 lud. 274; Watson v. Hopkins, 27 Tex. 637. ■* Heath v. Nutter, 50 Me. 378. 5 Burrill v. Nahaut Bank, 2 Mete. 163 ; Valentine v. Piper, 22 Pick. 85. ^ Lamy v. Burr, 36 Mo. 85. But see Gimell v. Adams, 11 Humph. (Tenn.) 283. ^ Taggartv. Stanbery, 2 McLean, 543; Bronson v. Coffin, 118 Mass. 156. 214 CONVEYANCING. Cll. III. torney to take a conveyance and give a mortgage for the purchase-money, it was held that a power of sale, inserted in the n]orto;ao;e, was valid, it beine; the custom, which was known to the purchaser, to insert such a clause.^ Likewise, power to execute a deed, gives the power by implication to acknowledge it for registration.- But as a general rule, where authority to do a specific act is given by power of attorney, and general words are employed, these last are limited to the particular acts authorized.^ § 237. A PoAvev to Sell Land for a Certain Sum Means for Casli, unless there is something in the power, or in the usage of trade to vary the legal construction. A power of attorne}^ authorizing the agents " to sell, transfer and con- vey lands, and to do and perform all acts and deeds for me and in my name concerning any and all property I may now own," does not authorize the agent to barter or exchange the lands for other property.* And a power of attorney *' to sell and convey " authorizes an absolute sale, but not a gift or transfer for any other pur[)ose.'' Nor would such a power authorize the attorney to mortgage the property.^ § 238. How far Necessary that the Power should Iden- tify the Land. — A power of attorney to sell land must iden- 1 Wilson V. Troup, 7 Jolius. Ch. ^.l. 2 Kobinsou v. Mauldiii, 11 Ala. 977. 3 Billings V. Morrow, 7 ChI. 171; Washburn v. Alden, .5 Cal. 463; Johnson v. Wright, G Cal. 373; Etn-nokls v. liowley, 4 La. Ann. 396; Boykin v. O'llara, 6 La. Ann. 115; Lawrence v. Gebhard, 41 Barb. 575; Ferreira v. Depew, 17 IIow. (X. Y.) Pr. 418; School District v. .Etna Ins. Co., 62 Me. 330; Maynard v. Mercer, 10 Nev. 33; Wicks v. Hatch, 62 N. Y. 535. A power of attorney authorizing the attorney " to buy and sell real estate," to receive and execute all necessary contracts and conveyances therefor, and '-to do all things necessary to the transaction of mercantile trading, money loaning and other lawful and proper busi- ness:" Held, not to authorize the attorney to sell and convey lands to which the principal had acquired title before the execution of the power. Greve v. Collin, 14 ]\rinn. 345. ■* Reese v. Medlock, 27 Texas, 120; Lumpkin v. Wilson. 5 llcisk. 555. 5 Dupont v. Wertheman, 10 Cal. 354; Mott v. Smith, 16 Cal. 533. 6 Bloomer v. Waldron, 3 Hill, 361. AKT. VI. POWERS OF ATTORNEY. 215 tify it unless it be the only land of the principal. ^ Power to sell all the land of the principal, or all the land owned by him in a particular locality, is sufficient without a particular description of the land.^ And a letter of attorney, em- powering the attorney to sell any of the constituent's real estate, was construed to authorize him to sell real estate which the constituent acquired after the execution of such power. ^ A power authorizing the attorney in fact to sell *' the one-half of a lot of land," without specifying which, or whether an undivided half, was held to empower him to sell one-half in severalty, exercising his own discretion as to which half.* § 239. Power to Sell Land for Specified Purposes. — " A power of attorney to sell lands, ' for the purpose of making actual settlements thereon ' and ' to sign, seal, and deliver sufficient deeds, conveying the land in fee-simple, with the several covenants of general warranty,' leaves it to the judgment of the attorney to determine whether the purchaser buys for this purpose; and in the absence of fraud, the conveyance will be valid, although tlie land was purchased, not for settlement, but on speculation. "^ § 240. Relinquisliment of Dower by Power of At- torney — In several of the States it is provided by statute that: "A married woman may convey her real estate, or relinquish her dower in the real estate of her husband, by a power of attorney authorizing its conveyance, executed and acknowledged by her jointly with her husband, as deeds conveying real estate by them are required to be executed and acknowledged. "<^ In such States where the wife joins 1 Stafford V. Lick, 13 Cal. 240. 2 Cassidy v. Can-, 48 Cal. 339. 3 Fay V. Winchester, 4 Mete. 513. Under a power to convey all the land of the principal which he had not previously conveyed, the agent may convey what his principal had sold, but not convej^ed. Mitchellv . Maupin, 3 T. B. Mon. 185. •4 Alemany v. Daly, 3G Cal. 90. 5 Spofford V. Hobbs, 29 Me. 148. «Rev. Stats. Mo. 1879, § 670; Eev. Stats. 111. 1877, Chap. 30, § 17; Stim- son's Amer. Stat. § G506. 216 CONVEYANCING. CH. III. with licr husband in executing a power to convey his land, she to relinquish her dower, autliority to relinquish her dower should be conferred on the attorney in the body of the instrument, and the certificate of acknowledgment, wliere required, should show that, on a private examination, she acknowledged that she executed such power for the pur- pose of authorizing the attorney to relinquish her dower, instead of stating that " she relinquished her dower," as is frequently done where this form of acknowledgment is in use. The pro})riety, if not vital importance, of following this suggestion is apparent when we consider that no title passes to the attorney, and that, therefore, the dower can- not be released to him, but that the power can only author- ize him to release it. § 241. A Power of Attorney uiay be Revoked, when. — A power of attorney to sell land may be revoked by the principal at any time before sale, unless given for a valu- able consideration, or coupled with an interest.^ But every power, beneticial or in trust, is irrevocable, unless an au- thoritv to revoke it is granted or reserved in the instrument itself.- The power of sale in a mortgage is a part of the security, and affords an instance of irrevocable powers. Simple powers of attorney to convey land are usually but naked powers, and transfer no interest to the attorney. § 242. Of the Kevocation of a Power. — When a power of attorney has been recorded, an instrument revoking it should be executed with the same formalities and recorded in the same office in which the instrument containing the power is recorded. Notice, or a copy of the instrument of revocation should also be served on the attorney.-^ There are also other acts and circumstances which will put an end to the authority conferred by a power of attorney. It must be executed during the life of the party creating it, or his death terminates the power.* So, the after-occurring in- 1 Brown v. Pforr, ^^S Cal. 550; Hartley's Appeal, 5:5 Pa. St. '212. 2 Story ou Ageucy, § 477. 3 Weile V. United States, 7 Ct. of CI. 535. * Bac. Abr. Tit. Authority, E. ART. VII. EXECUTION OF DEEDS BY ATTORNEY. 217 sanity of a principal operates, pei- se, as a revocation or suspension of the powers of his agent. ^ And if an unmar- ried woman executes a power of attorney as principal and afterwards marries, her marriage, ipso facto, amounts to a revocation of the power;- for a married woman, in general, has no right to authorize an attorney to do any act in her name, or to dispose of any of the property.-^ But these apply only to naked powers. A power coupled with an in- terest is not revoked by the death, insanity, or marriage of the principal.* ARTICLE VII. OF THE EXECUTIOX OF DEEDS BY ATTOKN^EY. SECTION. 245. The power must be strictly pursued. 246. The form in which the agent should execute his authority. § 245. The Power must be Strictly Pursvied. — Powers of attorney, as we have seen, are rigidly interpreted, and must be strictly pursued in their execution. The effect of a written authority in limiting the power of an attorney precisely within what is written, cannot be better illustrated than by a reference to a few of the adjudged cases. In the first place, it may be observed, that when a grantor requests a person to sign his name to a deed for him, and the person so requested writes the name of the grantor in his presence and by his direction, without writing his own name or adding any words to indicate that the grantor acted by attorney, this would nevertheless be the signature of the iMatthiessen & W. K. Co. v. McMahon, 38 N. J. L. 537. 2 Henderson v. Ford, 46 Texas, 627. 2 Story on Agency, § 481. * Hartford Fire Ins. Co. v. Wilcox, 57 111. 180; Clayton v. Merrett, 52 Miss. 353; Henderson v. Ford, 46 Texas, 627. 218 CONVEYANCING. CH. III. ofnmtor, since it would be regarded as his personal act.^ But, if the grantor has given to A. a power of attorne}^ in the ordinary form, authorizing him to execute a deed for him as his attorney, and A. writes tlie name of the grantor to the deed in his absence without saying b// A., his attornei/, or writing his own name, this would not seem to be a sufficient execution of the dced,"^ — the reason assigned in the latter instance being, that A. had no other power to act for the grantor than that which the letter of attorney gave him ; and that did not give him any other power than to act as the grantor's attorney, that is, to sign the deed himself, declaring that the grantor signed it by him.^ In 1 Ball V. Duutersville, 4 Term Rep. 313; Lovelace's Case, W. Jones, 268; Garduer v. Gardner, 5 Gush. 483; Ilibblewhke v. MeMorine, G M. & W. 200; King v. Longnor, 4 B. & Ad. G47; Frost v. Deering, 21 Me. 156; Videan v. Griffin, 21 Cal. 392; Burns v. Lynde, 6 Allen, 309, 310; Kime V. Brooks, 9 Trod. 219; McMurtry v. Brown, 6 Xeb. 368. 2 Wood V, Goodridge, 6 Gush. 117; Stackpole v. Arnold, 11 Mass. 27; 2 Dixon on Title Deeds, 533. But see contra^ Deviuney v. Eeynolds, 1 AVatts & S. 328. •' The court, in Wood V. Goodridge, 6 Gush. 117, argue that "if the agent might execute instruments in this mode'' (by signing the name of the principal as if signed by liim in person), "the principal, if he found his name signed to an instrument, would have no means of knowing by whom it had been signed, or whether he was bound or not bound by such a signature; and other persons might be greatly deceived and de- frauded, by relying upon such signature as the personal act and signa- ture of the principal, when the events might prove, that it was pnt there by an agent who had mistaken his authoritj% and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by iiim, as it purports to be, it might be wholl}' impossible to prove the execution by attorney, as there would be nothing to indicate such an execution.'' But in Forsyth v. Daj',41 Me. 382, the court says: "No case, I apjjreheud, can be found in the books which will sustain the rule so broadly laid down by the learneJ judge in the case of Wood v. Goodridge. Nor can the doctrine be sustained on piinciple. It is diflicult to perceive any sound reason why, if one man may authorize another to act for him, and bind him, he may not authorize him thus to act for him and bind him in one name as well as in another. As a matter of convenience in preserving testimony, it maybe Avell that the names of all parties, who are in any way connected with a written instrument, should appear upon the instruments themselves. But the fact that the name of the agent, by whom the signature of the ART. VII. EXECUTION OF DEEDS BY ATTORNEY. 219 the first case the grantor being present and authorizing the signature makes it theoretically his own.^ But in the ex- ecution of a deed by attorney the disposing power is dele- gated to the attorney, and the deed takes effect from his act; therefore the power is to be strictly examined and con- strued;- and any act varying from the terms of the power is void. § 246. The Form in which tlie Agent should Execute his Authority. — There is much discussion in the books as to the form in which an aijent should execute his authoritv, so as to bind his principal, and not bind himself.^ The rule commonly laid down by the authorities, in respect to the execution of solemn instruments under seal, is that, to bind the principal, the instrument must purport on its face to be the deed of the principal, and his name nmst be inserted in it, and signed to it, and not merelv the name of the agent, even though the latter be described as agent in the instru- ment ; or at least the terms of the instrument should clearly principal is aflBxed to an instrument, appears upon the instrument itself, neither proves, nor has any tendency to prove, the authority of such agent."' And see Merrifleld v. Parritt, 11 Cush. 590; Hunter v. Gid- dings, 97 Mass. 41 ; First National Bank v. Gay, 63 Mo. 34. In these cases, however, the instruments in question were simple instruments of writing not under seal ; while the case of Wood v. Goodridge involved the question also of the execution of a mortgage under seal. So far as it relates to the execution of a deed, there does not seem to he any author- ity in direct conflict with the latter case. In Devinney v. Reynolds, 1 "Watts & S. 328, a contrary doctrine is announced; hut in that case, al- though the signature was merely that of the principal, the body of the deed and testimonium clause showed that it was executed by the at- torney, his name being mentioned. Story, in his work on Agency, says, in reference to the execution held necessary, in the case of Wood v. Goodridge : "The propriety of such a mode of execution may be easily seen, but it cannot positively be said, upon the authorities, to be abso- lutely necessary to the valid it}' of the insti-ument." Story on Agency, 7th ed., § 147. 1 And where a wife, in the absence of her husband, signed his name to a deed, and he afterwards acknowledged the deed before a magistrate as his free act and deed, it ratified and made valid his signature. Bartlett V. Drake, 100 Mass. 175, 2 Gardner v. Gardner, 5 Cush. 483. 3 As to statutory requirements, see Stimson's Amer. Stat. § 1675. 220 CONVEYANCING. CH. III. show that the principal is intended to-be positively bound thereby, and that the agent acts merely as his agent in exe- cuting it.^ Thus, if a person authorized by power of at- torney to make a conveyance under seal, of lands of his principal makes a conveyance by a deed in his own name, it will not bind the principal; and it will make no differ- ence in the case, that, in the deed, he describes himself as the agent of the principal, as if the deed should read: "This deed, made and entered into by and between A. B., as agent of C. D.," etc., or if he signed it "A. B. for C. D. ;" for in such a case it is still his own deed, and not the deed of his principal. ^ Though, if the attorney had au- thority, it will be sustained in equity as an agreement of the principal to convey, and will be good against subsequent purchasers with notice.^ But the authorities upon the former proposition are by no means uniform, and in some States, the subject has been regulated by statute.* In Jones V. Carter ^^ the court held, that where a deed was signed 1 Stackpole Y. Aruold, 11 Mass. 27, 29; Wood v. Goodridge, 6 Cush. 117, 120; Bedford Com. Ins. Co. v. Covell, 8 Mete. 442; Bradlee v. Bos- ton Glass Mauufaetoiy, 10 Tick. 347; Arfiidsou V. Ladd, 12 Mass. 174; Savage v. Rix, 9N. H. 263, 269; Eice v. Gove, 22 Pick. 158; Miuard v. Mead, 7 Wend. 68; Pentz v. Stanton, 10 Wend. 271; Spencer v. Field, Id. 87; Bassett v. Hawk, 114 Pa. St. 502; Caddell v. Allen (X. C), 6 S. E. Rep. 399. For a collection of cases upon this subject, see 1 Am. Lead Cas. 577 etseq. A deed under power of attorney is properly exe- cuted at common law, in the name of the principal by his attorney, and that form is still valid notwithstanding Md. Acts 1856, ch. 154, § 23, providing that the agent shall sign the deed as agent or attorney. Pos- ner v. Bayless, 59 Mo. 50. 2 Bac. Abridg., ieases, 1 § 10; Com. Dig., Attorney, C. 14; Paley on Agency, Lloyd's ed., 181, 183; Story on Agency, § 148; Martin v. Flowers, 8 Leigh (Va.), 158; Townsend v. Hubbard, 4 Hill, 351; Clarke v. Courtney, 5 Pet. 349, 351; Brinley v. Mann, 2 Cush. 337. 3 Love V. Sierra Xevada, etc. Mining Co., 32 Cal. 039; 1 Am. Lead. Cas. 585. See Wilkinson V. Getty, 13 Iowa, 157; Yerby v. Grigsby, 9 Leigh (Va.), 387; McXaughton v. Partridge, 11 Ohio, 223. 4 The Statute of Maine of 1823, Ch. 220 (Vol. 3, p. 49), provides that deeds made by an agent, in his own name, shall be valid, provided the agent had authority, and it appears on the face of the dt-ed that he meant to execute the authority. 5 4 Hen. & M. 196. And see Wilkes v. Bock, 2 East, 142. ART. VII. EXECUTION OF DEEDS BY ATTORNEY. 221 "B. W., attorney for K. C," it was ciearl}' a good exe- cution of the deed. But in ThurmanY. (7ame?*07i/ the court held that the attorney must use the name of the principal both in the body of the deed and by way of signature. So where a deed recited the power of attorney, and followed with *'J. S. by virtue of the power aforesaid, hereby grants," etc., with a testatum : "In witness whereof, I have hereunto set the name and seal of the principal" — and was signed "J. S." with a seal, it was held not to be the deed of the principal.^ Though in Devinney v. Reynolds,^ where the deed itself stated that it was executed by the grantor, "by his attor- ney W. M." and was signed H. M. (the principal's name), it was held a good execution. Many nice distinctions and seeming conflicts of opinion have arisen, which it would probably be useless to attempt to harmonize into any settled doctrine ; but as a general rule, if it appears clearly from any part of the instrument that it is the deed of the prin- cipal, that he makes the grants and covenants, and that the seal is his, and that his signature is attached thereto by the attorney named, the precise form or arrangement of words will not be material.* As to the proper form for the ac- knowledgment of a deed executed by attorney in fact, the reader is referred to a future chapter.^ 1 24 Wend. 90. 2Elwell V. Shaw, IGMass. 42; Barger v. Miller, 4 Wash. C. C. 280; Harper v. Hampton, 1 Harr. & J. 709. See Echols v. Cheney, 28 Cal. 160; Townsend v. Corning, 23 Wend. 438. n Watts. &S. 328. 4 Pars, on Contracts, 54. 5 Chapter IV., Art. I. § 253. 222 CONVEYANCIXG. CH. IV. CIIArXEll IV. — Acknowledgment and Registration OF Deeds, Article I. Acknowledgment or Proof of Deeds. 11. 01" the Registration of Deeds. ARTICLE I. ACKNOWLEDGMENT OR PROOF OF DEEDS. SECTION. 248. The provisions reguhiting acknowledgments purely statutory. 549. When a certiticate of acknowledgment is necessary. 250. The purposes of the acknowledgment. 2.51. Effect of the acknowledgment upon the deed as evidence. 2.52. The acknowledgment authoiizes and gives effect to the record. 253. Who may make the aekuowledgnient. 254. It is immaterial when the acknowledgment is made. 255. What law governs. 256. Qualification of the officer to act in taking the acknowledgment. 257. As to the date and place of taking the acknowledgment. 258. The certificate should set out the official character of the officer. 259. The name of the grantor should be stated or referred to. 200. Statutory requirements must be substantially complied witli. 201. The certilicates must be subscribed — seal of office. 262. The certificate to be on the same sheet with the deed, when. 203. The certificate how far conclusive of the facts stated. 264. Mistakes in the certificate may be corrected, how. 265. Curative statutes. 266. Proof by subscribing witnesses. § 248. The Provisions Regulatinj? Acknowledgments Purely Statutory. — The practice of acknowledging deeds, ART. I. ACKNOWLEDGMENT OF DEEDS. 223 which has been adopted in all of our States as a means of proving their execution and to prevent frauds and imposi- tions, was unknown to the common law. The provisions regulating the same are purely statutory. Each State pre- scribes by statute the forms to be observed in taking and certifying the acknowledment, or proof of deeds of land situated within its limits, and designates what officers may take the same. No provision in respectthereto, adopted in one State, has any effect upon a conveyance of land situated in another State, except where it is provided that deeds exe- cuted in other States may be executed, acknowledged, or proved in accordance with the laws of the State where exe- cuted. It is not our purpose to attempt here to review the legislation of the several States upon this subject, but sim- ply to present a very general outline of the usual require- ments of such statutes, and to notice some of the questions that have arisen from time to time in respect to the same. For the special requisites of the certificate, and to ascertain what officer may take and certify an acknowledgment in any given case, the reader must, of course, refer to the statute of the State in which the land is situated, in force at the date of the taking of such acknowledgment.^ § 249. How far Essential to the Valid Execution of a Deed. — In some of the States, it has been held that a deed must be acknowledged, and the acknowledgment certified thereon, in order to its operating to pass title. ^ But, gen- erally speaking, a deed is valid as between the parties, though not acknowledged or recorded.^ And yet, in several ^ See Stimson's Amer. Stat., §§ 1570, 158.5. 2 Smith V. Hunt, 13 Ohio, 260, 268; Hout v. Houl, 20 Ohio St. 119. A deed in Alabama, without any subscribing witness, and without aclinowl- edgment before a proper officer, is inoperative as a conveyance of laud. Lord V. Fola.ar, 57 Ala. 615; Bank of Kentucky v. Jones, 59 Ala. 123. s Hastings v. Vaughn, 5 Cal. 315; Goodeuough v. Warren, 5 Sawyer, 494; Strong v. Smith, 3 McLean, 362; Stevenson v. Cloud, 5 Blackf. 92; Simson v. Mundee, 3 Kan. 172; Webster v. Hall, 2 Har. & M. 19; Dole V. Thurlow, 12 Mete. 157 ; Brown v. Manter, 22 N. H. 468; Wark v. Wil- lard, 13 N. H. 389; Gibbs v. Swift, 12 Gush. 393; Jackson v. Allen, 30 Ark. 110; Hill v. Samuel, 21 Miss. 307; McMahon v. McGraw, 26 Wis. 224 CONVEYANCING. CH. IV. of the States where this is true, the certificate of acknowl- ^dcjiiicnt is an essential part of the due execution of the •deed of 'a feme covert, and unless there is a substantial com- pliance with the statute, no title passes.^ § 250. Tlio Purpose of the Ackiiowli'tlginent of a Deed, as a general rule, is to prove its execution. (1) In order that it ma}' be used in evidence. (2) That it nia}' be en- tered of record. § 251. Effect of the Acknowletlgiueut upon the Deed -as Evidence. — In man}^ of the States, a deed that has been duly acknowledged and recorded may be used in evidence 614; Stewart v. Mathews, 10 Fla. 752 : Xew Hampshire Land Co. v. Til- ton, 19 Fed. Rep. 73. The ackuowIedo;ment has reference to the proof of execution simply, and not to the force of the instrument. Gray v. Ulrich, 8 Kan. 112. A deed, not acknowledged or recorded, is no evi- dence of seizin or possession in the grantee, except as against the grantor and his heirs. Kellogg v. Loomis, 16 Gray, 48. Although a deed is de- fectively acknowledged, or even not acknowledged at all, it is good as between the parties, and subsequent purchasers from the grantor with actual notice. Stevens v. Hampton, 40 ]Mo. 401. But not good as to sub- sequent purchasers in good faith, and for a valuable consideration. Bishop V. Schneider, 46 Mo. 472; Ryan v. Carr. 46 Mo. 483; Blain v. Stewart, 2 Iowa, 383; Mastiu v. Halley, 61 Mo. 190; Lake v. Gray, 30 Iowa, 415 ; s. c, .35 Iowa, 459 ; Ricks v. Reed, 19 Cal. 571 ; Fryer v. Rock- efeller, 63 N. Y. 208. ^ Mariner v. Saunders, 10 111. 113; Mason v. Brock, 12 111. 273; Bruce V. Perry, 11 Rich. 121 ; Franklin v. Becker, 11 Bush (Ky.), 595; McCor- mack V. Woods, 14 Id. 78; McBryde v. Wilkinson, 29 Ala. [662; Perdue V. Aldridge, 19 Ind. 290; Armstrong v. Ross, 20 X. J. Eq. 109; Good- enough V. Warren, 5 Sawyer, 494. The essential thing to be accom- plished in effecting a conveyance by nfeme covert, is the privy examina- tion, whereby it is ascertained that her execudon of the instrument was voluntary, free and without fear, compulsion or undue influence. What- ever statutory provisions have reference to the accomplishment of that object, and the protection of the feme covert, must be considered as man- datory. Mount V. Kesterson, 6 Coldw. (Tenn.), 4.52. See Woodbourne v. Gorrel, 66 N. C. 82; Becker v. Quigg, 54 111. 390. Where the word "vol- untary" is omitted in the certificate of the privj'^ examination of a mar- ried woman, the deed conveys no title. Laird v. Scott, 5 Heisk. (Tenn.) 314. The rule that, in taking the acknowledgment of a deed, a substan- tial compliance with the statute is sufficient, applies equally to acknowl- •edgments by married women. Tubbs v. Gatewood, 26 Ark. 128. ART. I. ACKNOWLEDGMENT OF DEEDS. 225 without further proof of its execution.^ And it is believed that, according to the practice in most of the States, a deed that has been acknowledged in the manner provided by hiw is entitled to be received in evidence, though it never has been recorded.^ In some of the States a deed, defective as to the acknowledofment, so as not to be entitled to registra- tion, but which has been recorded, may be allowed in evi- dence, with instructions to the jury as to its effect in giving notice.^ But in New York, a deed duly executed and acknowledged, but not in the manner provided by statute, in order that it might be recorded, was held not admissible in evidence without proof of its execution."^ So, also, in Indiana.^ And in some of the States, it seems, that a deed, although acknowledged and recorded, must be proved as at common law, in order to be used by the holder in evi- dence in questions involving the validity of the deed.^ It may be added that as against the grantor and his heirs, a •deed may be introduced in evidence without acknowledg- ment.'^ § 252. The Ackuowledgment Authorizes and Gives Effect to the Record. — A deed which is not acknowledged is not, as a general rule, entitled to be recorded, and although it has been placed upon record, is no notice to third parties, 1 Carpenter v. Dexter, 8 Wall. 532; Keed v. Kemp, 16 111. 445; Simp- son V. Mundee, 3 Kas. 181; Clark v. Troy, 20Cal. 219; Ward v. Fuller, 15 Pick. 185; Hiuchliff v. Hiumau, 18 Wis. 135; Landers v. Bolton, 26 Cal. 405; Hutchison v. Rust, 2 Gratt. 394; Samuels v. Borrowscale, 104 Mass. 207. 2 Keichline v. Keichline, 54 Pa. St. 75. See Granniss v. Irwin, 39 Ga. 22. 3 Hastings v. Vaughn, 5 Cal. 315. And if there be no acknowledg- ment, it may be admitted on proof of its execution. In Blair v. Valliant, 4 Har. & M. 62, a deed was admitted in evidence, in an action of tres- pass, though it appeared by the acknowledgment that the grantor did not acknowledge it to be his free act and deed. * Jackson v. Shepard, 2 Johns. 77. ^ Strong V. Smith, 3 McLean, 362. 6 3 Washb. on Real Prop., 4th ed., 322; 2 Greenl. on Ev., § 299. 7 Brown v. Manter, 22 X. H. 468 ; Wark v. Willard, 13 N. H. 389 ; Gibbs -v. Swift, 12 Cush. 393 ; ante, § 249. (15) 22^ . CONVEYANCING. CH. IV. and i> a iiiillit\- as to all the benelits ooiiferrod by statute upon properly re<^istered instruments.^ But, in some of the States, the record of a deed that has neither been acknowl- edged or proved, will operate as constructive notice of the contents of the instrument.^ And where a deed not entitled to record, but which has been recorded, does not operate as constructive notice, it may operate as actual notice. ^ The .subject of notice will be further considered under the head of Registration.^ § 253. Who may Make the Ackuowledjjment. — Of course the only parties required to make an acknowledg- ment, or that would be com})etent to acknowledge a deed, are those who make or join in the grant. Where a deed is executed by an attorney in fact, the proper mode is for the attorney to acknowledge that he executed the same as the act and deed of his principal.^ In the case of a corporation, the deed may be acknowledged by any one of the officers thereof lawfully authorized to do so.^ In some of the States there is a provision of statute to that effect." Where there ^ Story's Eq. .Till-., § 404; Stroug v. Smith, 3 McLean, 362; Lewis v. Baird, Id. 50; Graves v. Graves, Gray. 391; Kerns v. Swope, 2 Watts, 75; Shaw v. Poor, 6 Pick. 88; Shults v. Moore, 1 McLean, 520; Ileister v. Fortner, 2 Binn. 40; Cheney v. Watkins, 1 Har. & J. 527; Tillman v. Cowand, 12 Smed. & M. 262; Blood v. Blood, 23 Pick. 80; Isham v. Ben- nington Co., 19 Vt. 230; Herndon v. Kimball, 7 Ga. 432; DeWitt v. Moulton, 17 Me. 418 ; Carter v. Champion, 8 Conn. 549 ; Harper v. Barsh, 10 Rich. Eq. 149; Peck v. Mallams, 10 N. Y..518; Burnham v. Chandler, 10 Tex. 441; Dussaurae v. Burnett, 5 Iowa, 95; Galpin v. Abbott, 6 Mich. 17; Bossard v. White, 9 Rich. Eq. 483; McKean v. Mitchell, 35 Pa. St. 269; Ely v. Wilcox, 20 Wis. 529; Bishop v. Schneider, 46 Mo. 472; Ste- vens v. Hampton, Id. 404; Fleming v. Ervin, 6 W. Va. 15; Priugle v. Dunn, 37 Wis. 449; Bass v. Estill, 50 Miss. 300; Carpenter v. Dexter, 8 Wall. 532; Brydon v. Campbell, 40 Md. 331. 2 Simpson v. Mundee, 3 Kan. 181; Reed v. Kemp, 16 HI. 445. sMusgrove v. Bonser, 4 Oreg. 313; Bass v. Estill, 50 Miss. 300; Manandas v. Mann (Oreg.), 13 Pac. Rep. 449. * Post, Art. n. « Coombe's Case, 9 Co. R. 76 b; Fowler v. Shearer, 7 Mass. 19; El well V. Shaw, IG Mass. 42. 6 Merrill v. Montgomery, 25 Mich. 73; Phillips v. Coffee. 17 HI. 154; Sawyer v. Cox, 63 HI. 133; Miners' Ditch Co. v. Zellerbach. 37 Cal. 543. 7 Muller v, Boone, 63 Tex. 91. ART. I. ACKNOWLEDGMENT OF A DEED. 227 is no statute proscribing a particular mode of acknowledging deeds by a corporation, the oflBcer affixing the corporate seal is the proper })erson to make the acknowledgment.^ A deed to the wife's land must be acknowledged by both husband and wife in the manner required by statute.^ § 254. When the Acknowledgment may be Made. — Where no period is designated by statute, it is immaterial when the acknowledo-ment of an instrument is made. If done when offered in evidence, it may be read ; ^ even though acknowledged after suit is brought.* But the subsequent acknowledgment of an ineffectual conveyance to a voluntary grantee will not relate back to the signing and delivery of a deed, so as to prejudice the rights of execution creditors.^ Though, it has been held that, where the wife's signature and assent to the conveyance of the homestead have been defectively acknowledged and certified, she may make a new acknowledgment, with intent to cure the defect; and such acknowledgment, when properl}' made and certified, will relate back, rights of third persons not intervening, to the date of the original delivery of the conveyance.^ § 255. What Law Governs. — We have already stated that the acknowledgment of a deed must be taken and cer- tified in accordance with the laws of the State where the land is situated, in force at the time of takino; and certifv- ing the same J In some of the States, the law provides that this may be done in conformity with the law of the State where taken. In which case a party maintaining the validity of an acknowledgment, who rests on the law of one State, 1 Kelly V. Calhoun, 95 U. S. 710. - Southerland v. Hunter, 93 N. C. 310; Ferguson v. Kingsland, 7d. 337. 3 Pierce v. Brown, 24 Vt. 165 ; Johnson v. McGehee, 1 Ala. 186. Itvis no substantial objection to a deed, that the acknowledgment bears date prior to the deed. Gest v. Flock, 2 N. J. Eq. 108. Husband and wife may acknowledge a deed at different times and places and before a dif- ferent officer. Ludlow v. 0*Neil, 29 Ohio St. 181. ^ Kelly V. Dunlap, 3 Pa. 13G. « Hendon v. White, 52 Ala. 597. « Cahall V. Citizens Mut. Assn., 61 Ala. 233. ''Ante, §248; Brannon v. Brannon, 2 Disney (Ohio), 224; Keller v. Moore, 51 Ala. 340. 228 CONVEYANCING. CH. IV. must show a compliance therewith in all essential particulars ; he cannot rely partly on one law and partly on the other. ^ § 25(5, As to the Qualification of the Oflicer Taking an AeknoAvh'dgnient. — The acknowledgment of a deed before a de facto ofticer is sufficient.'- It cannot he attacked col- laterally.^ The general rule, irresjjective of statutory j)ro- visions, is that an officer cannot take the acknowledgment of a deed to which he is a party, or in which he is directly or indirectly interested, and the record of such a deed will not operate as constructive notice to a subsequent pur- chaser,* yet the deed would be good as between the i)ar- ties.''' It is DO objection to an acknowledgment that the officer taking it stands in so near a relation to the party mak- ing it, as to render him incompetent to act in a judicial capacity ;'Hhe question seems to depend on whether the officer 1 Adams v. Bishop, 19 111. 395; Montag v. Linn, Id. 399. 2 Brown v. Lunt, 37 Me. 423 ; Prescott v. Hayes, 42 X.jH. 56; Bullene v. Garrison, 1 Wash. 587. The acknowledgment of a deed before a de facto clerk of a court is sulticient, although the clerk, in his certificate, de- scribes himself as clerk pro tempore. Woodruff v. McHarry, 56 111. 218. Where by a clear clerical error the ofticer taking the acknowledgment in another State is made to appear to liave no commission the deed will not he invalid. Quimby v. Boyd, 8 Colo. 194. 3 Prescott V. Hayes, 42 N. H. 56 ; Hamilton v. Pitcher, 53 Mo. 334. * Wilson V. Traer, 20 Iowa, 231; Groesbeck v. Seeley, 13 Mich. 329; Brown v. Moore, 38 Tex. 645; Wasson v. Connor, 54 Miss. 352; Beaman V. AMiitney, 20 Me. 413; Withers v. Baird, 7 Watts, 227; C.reen v. Abra- ham, 43 Ark. 420; Hogans v. Caruth, 18 Fla. 587. The acknowledg- ment of a deed of trust taken by one of the trustees is void as to such trustee. Bennett v. Shepley, 82 Mo. 408. But if the execution of the deed is proved, this will cure the defect. Darst v. Gale, 83 111. 136. And see Nat. Bank v. Conway, 14 Bankr. Eeg. 513, where it was held that the fact that the notary is interested under a deed of trust as one of the beneficiaries, docs not disqualify him from taking and certifying the grantor's acknowledgment of the deed. See Gibson v. Norway Bank, 69 Me. 579. An individual owning an interest in a tract of land is not so far interested in the entire land as to prevent him from taking the acknowledgment of a deed conveying another and distinct interest in it. Dussaume v. Burnett, 5 Iowa, 95. « Dussaume v. Burnett, 5 Iowa, 103 ; Caldwell v. Head, 17 Mo. 561 ; Hampton v. Stevens, 10 Amer. Law Reg. (N. S.) 107; Beaman v. Whit- ney, 20 Me. 413. 8 The act of taking the acknowledgment is ministerial. Lynch v. Liv- ART. I. ACKNOWLEDCJMENT OF DEEDS. 229 is a pally to the deed.^ Nor does the right of the oflScer to take the acknowledgment depend on the length of his acquaintance with the person, or the manner in which his knowledge is acquired. These are necessarily questions for the conscience of the officer, and the means through which he obtains knowledge of the person's identity are not mate- rial, provided the fact of his acquaintance is stated in the certificate.'-^ It may be added that, as a general rule, when- ever an officer is authorized to have a deputy, such deputy may take and certify acknowledgments in the name of his principal ;3 and in some States he may do this in his own name.* Numerous questions have arisen from time to time, in each of the States, as to what officers have, under the ingston, 6 X. Y. 422; Kimball v. Johnson, 14 Wis. 674; Hill v. Bacon, 43 111. 477. But it seems tbat in some of the States, the officer taking the acknowledgment acts, at least, in a quasi judicial capacity. The Supreme Court of Mississippi, in a late case, said : "Whatever may be said of the receiving for record and recording of a deed, it is evident that the tak- ing of an acknowledgment of a grantor is a quasi judicial act and can- not be performed by the grantee in the deed. The officer who takes an acknowledgment acts in a judicial character in determining whether the person representing himself to be, or represented by some one else to be, the grantor named in the conveyance, actually is the grantor. He de- termines further whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the in- strument. By his certificate he makes un official record of bis adjudi- cation on these points, which cannot be impeached by himself, and sometimes cannot be impeached by the grantor." Wasson v. Connor, 54 Miss. 352. 1 Groesbeck v. Seely, 13 Mich. 329; Wilson v. Traer, 20 Iowa, 231. An attesting witness may take the acknowledgment. Baird v. Evans, 58 Ga. 350 2 Wood V. Bach, .54 Barb. 134. 3 Muller V. Boggs. 25 Cal. 175; Hope v. Sawyer, 14 111. 254; Abrams v. Ervin, 9 Iowa, 87: Gibbons v. Gentry, 20 Mo. 468; Lynch v. Livingston, 8 Barb. 463 ; Kemp v. Porter, 7 Ala. 138. Where a deputy takes acknowl- edgment of a deed and indorses a memorandum thereof on such deed, but fails to write out and sign the certificate thereof, the clerk or another deputy may write and sign the certificate, setting forth in such certificate the facts as pi'ovided in the si^atute. Drye v. Cook, 14 Bush (Ky.;, 459. * Touchard v. Crow, 20 Cal. 150; McCraven v. McGuire, 23 Miss. 100; Beaumont v. Yeatnian, S Humpli. (Tenn.) 543; Cook v. Knott, 28 Tex. 85; Babbitt v. Johnson, 15 Kan. 252. 230 CONVEYANCING. CH. IV. statutes providing for acknowledgments, the power to take and certify the same. The cases upon this subject are very numerous; and as such questions always depend more or less ut)on the construction of a local statute, it would be of little service to note them here. § 257. As to the Date and Place of Taking the Ac- knowledgment. — In some of the States it seems not to be indispensably necessary that the place of taking the acknowl- edgment should appear from the certificate, if it appears with sufficient certainty from an ins})ection of the whole in- strument.^ And the want of a date will not vitiate the certif- icate.- Where no time or place appears in the certificate, in the absence of proof to the contrary, the date of the deed and the county in which the magistrate has jurisdiction, are presumed to betiie time and place of the acknowledgment.^ But in Iowa, a certificate of acknowledgment, which failed to show the county of the notary, was held to be fatally defective; and it was further held that the impression of the notary's seal, upon which the name of the county was engraved, did not cure the defect.* And a similar doctrine was announced in an early case in Illinois.-^ But an ac- knowledgment which omits the name of the county in the 1 Brooks V. Cbaplin, 3 Vt. 281. And see Carpenter v. Dexter, 8 Wall. 513. 2 Irving v.Brownell, 11 111. -102; Trulock v. Peeples, 1 Ga. 3. Where a deed has been recorded within the time prescribed by law, and the year when it was acknowledged is omitted in the acknowledgment, the legal inference is that it was legally acknowledged. Wickes v. Caulk, ') liar. & J. (Md.) 36. 3 Rackleff V. Xorton, 19 Me. 274; Trulock v. Peeples, 1 Ga. 3. The acknowledgment of a sheriff's deed is good, which states "on the day before the judge of the Circuit Court, within and for the county afore- said, in court judicially sitting, appeared," etc. lluxley v. Ilarrold, 62 Mo. .516. And see Sidwell v. Birney, 69 Mo. 146. * Wilhird V. Cramer, 36 Iowa, 22. 5 Vance v. Schuyler, 6 111. 160. The venue of a certificate simply "County of New York," with no indication of the State in the body of the deed, held insufficient. Hardin v. Kirk, 49 111. 153. Yet the defect is cured by the certificate of the county clerk that the commissioner was duly commissioned for the city, countj' and .State of New York, residing -n the county and.duly authorized. Hardin v. Osborne, 60 111.93. ART. I. ACKNOWLEDGMENT OF DEEDS. 231 caption is merely informal, and may be held sufficient.^ Where a conveyance is acknowledged before an officer au- thorized to take the same within the limits of his jurisdic- tion, it will be presumed that the acknowledgment was ac- tually taken within such limits, without an averment of that fact contained in the certiticate."- An acknowledgment may be taken by a notary public, anywhere within the lim- its of the county.^ In Arkansas, it seems that the acknowl- edgment of a deed befoi'e a judge or justice of the peace, taken within the limits of the State in which he is commis- sioned to act, is valid.* § 258. The Official Character of the Officer should Appear from the Certificate. — In general, if the person takinor •m acknowledfifment gives himself no official charac- ter, either in his certiticate or subscription, it is insufficient, and the record irregular and inoperative.^ Though, in the cases cited it was held that the official character of such person might be proved by evidence aliunde.^ § 259. The Name of the Grantor should he Stated or Referred to. — Although the name of the grantor is defect- ^ Chiniqua v. Catholic Bishop of Chicago, 41 111. 149; Graham v. An- derson, 47 Id. 514. 2 Bradley v. West, 60 Mo. 33; Morrison v. White, 16 La. Ann. 100; Duulap V. Daugherty, 20 111. 397. 3 Hill V. Bacon, 43 111. 477; Utica & Black River R. R. Co. v. Stewart, 33 How. (N. Y.) Pr. 312. ^ Biscoe V. Bvrd, 15 Ark. 655. 5 Johnson V. Haines, 2 Ohio, 278; and the fact that such person was qualilied to take acknowledgments cannot be provided by parol. In Final v. Backus, 18 Mich. 218, a deed purporting to be executed in New York, in which the letters "J. P." were the only designation of the official character of the person taking the acknowledgment, but certified in the manner required by statute to entitle it to record, the certificate of the ofticer who certified to the due execution of the deed explaining the meaning of the abbreviation by attesting the official character of the per- son, was held sufficient to admit the deed in evidence. And see Spar- row v. Hovey, 41 Mich. 70S. 6 Shultz v. Moore, 1 McLean, 520; Bennett v. Paine, 7 Watts, 334; Scott v. Gallagher. 11 Serg. & R. 347. Certificate wherein officer styles himself such is prima /acie evidence of the fact. Tuten v. Gogan, 18 Fla. 751. See Van Ness v. Bank United States, 13 Pet. 17. 232 CONVEYANCINi . CH. IV, ively stated in the certificjite, yet if it a})pear from the whole instninieiit , with reasonable certainty, that it was acknowletlgcd by him, it is sufficient.^ A certificate that A, acknowiecljxed the deed, when A. was the grantee and B. the grjintor, was held to be a fatal erroi-.- But wiiere the certiticate was " T. G.," when the grantor's name was " T. G. S.," it was held by the court that such reference micrht construe and correct the certificate.'' And a certifi- cate that a deed was " signed, sealed and acknowledged," was held jjood thouffh it did not mention the name of the grantor.* The bodv of the deed mav be referred to, to support the certificate.-^ But in Ohio, a certificate which made no reference to the deed, and did not show by whom it was acknowledged, was held void." And in Pennsylvania a mortgage deed wherein the certificate failed to state by w4iom the acknowledgment was made, was held not entitled to be recorded.' § 2H(). Statutory Reqiiireinents must be Sub.stautially Complied with. — The certificate of the acknowledgment should show affirmatively that the requirements of the statute in respect to the same have been substantially com- plied with.^ It is not sufficient that the officer certify that 1 Wilcoxsen v. Osborn, 77 Mo. 621. 2 Wood V. Coehiaue, :W Vt. 544; Maguess v. Arnold. 31 Ark. 103. 3 Chandler v. Spear, 22 Vt. 388. The acknowledgment of a deed by a trustee, who signed the instrument as trustee, is not void because the certiticate describes him simply by his individual name, without adding his title. Dail v. Moore, 51 Mo. 589. * Wise V. Fostlewaite, 3 W. Va. 452. » Bradford v. Dawson, 2 Ala. 203; Carpenter v. Dexter, 8 Wall. 513; Kelly v. Rosenstock, 45 Md. 389. And see Sharpe v. Orme, 61 Ala. 263. A probate, omitting the name of the grantee and the quantity of land, is good if indorsed on the deed itself. Love v. Shields, 3 Yerg. (Tenn.) 405. ^ Smith v. Hunt. 13 Ohio. 260. Wheie a deed was acknowledged in open coui't, a certiticate that it was acknowledged, without saying by whom, was held sutticient. Phillips v. Euble, Litt. (Ky.) Sel. Cas. 22K 7 Meyers v. Boyd, 96 Pa. St. 427. * Jacoway V. Gault, 20 Ark. 190; Fipps v. McGehee, 5 Porter (Ala.), 413; Bryan V. Kamirez, 8 Cal. 461; Carpenter v. Dexter, 8 Wall. 513; Smith V. Garden, 28 Wis. 685; Calumet, etc. Co. v. Russell, 68 111. 426; Sharpe v. Orme, 61 Ala. 263; Myers v. Boyd, 96 Pa. St. 427; Talbert v. ART. I. ACKNOWLEDGMENT OF DEEDS. 23^^ the acknowledgment was " according to law;" he should state the facts in regard to the acts and declarations of the party. ^ Though the acknowledgnieat need not be in the exact words of the statute; words of equivalent import are sufficient.- Where, instead of certifying that the party had executed the deed, the words " signed, sealed and de- livered the same," were used, it was held sufficient.^ So, the omission of the word "personally" before the word Dull (Tex.), 8 S. W. Rep. 530 ; McMulleu v. Eagan, 21 W. Va. 233 ; Roney V. Moss, 76 Ala. 491 ; Monroe v. Arledge, 23 Tex. 480; Mullen v. Boone, 63 Tex. 91. See following cases as to substantial compliance with the statute. Watkins v. Hall, 57 Tex. 1 ; Balbaze v. Ratto (Tex.), 7 S. W. Rep. 501 ; McCormack V. James, 30 Fed. Rep. 14; Schramm v. Gentry, 63 Tex. .583; Little v. Weatherford, Id. 638; Donohue v. MHls, 41 Ark. 429 ^ Gordon v. Leech, 81 Ky. 229. 1 Gill V. Fauntleroy,8 B. Mon. (Ky.) 177; Flanagan v. Young, 2 Har. & M. (Md.) 38; Wetmore v. Laird, 5 Biss. 160. - Vance v. Schuyler, 6 111. 100; Wiley v. Bean, Id. 302; Johnson v. Badger, etc. Co,, 13 Xev. 3.51; Doe v. Reed, 3 111. 371 ; Davar v. Card- well, 27 Ind. 478; Tiffany V. Glover. 3 C.Greene, 387; Dickerson v. Davis. 12 Iowa, 353; Cavender v. Smith, 5 Iowa, 157; Morse v. Clayton, 21 Miss. 373 ; Pickett v. Doe, 5 Smed. & M. 470; Halls v. Thompson, 1 Smed. &M. 443; Alexander v. Merry, 9 Mo. 514; Talbot v. Simpson, Pet. C. C. Rep. 188; Monroe v. Arledge, 23 Tex. 478; Carpenter v. Dex- ter, 8 Wall. 513; Hartshorn v. Dawson, 79 111. 108; Schley v. Pullman Car Co., 120 U. S. 575. The acknowledgment of nfeme covert., as shown by the magistrate's certificate, agreeing in substance, though not in words, with that prescribed by the statute, held sufficient. Owen v. Norris, 5 Blackf. 479; Stevens v. Doe, Blackf. 475; Watson v. Clen- denin, Id. 477; Hughes v. Lane, 11 111. 123; Tubbs v. Gatewood, 27 Ark. 128. See Becker v. Quigg, 54 111. 390; Huxley v. Ilarrold, 62 Mo. 516. It is the policy of the law to uphold certificates of acknowledgment, whenever substance is found, and not to suffer conveyances or proof of them to be defeated by technical or unsubstantial objections. In con- struing them resort may be had to the deed or instrument to which they are appended. Wells v. Atkinson, 24 Minn. 161. Where the statute merely requires an instrument to be acknowledged, without prescribing any form of certificate, or providing what it shall contain, it is sufficient if it fairly appears therefrom, that the person who executed the instru- ment appeared in person before the officer and acknowledged it as his act and deed. Brunswick-Balke Co. v. Brackett (Minn.), 33 X. W. Rep. 214. 3 Jacoway v. Gault, 20 Ark. 190; Hobson v. Kissam, 8 Ala. 357. See Sharp V. Hamilton, 12 X. J. L. 109. 234 CONVEYANCING. CH. IV. *' known" is not fatal to the validity of the certificate.^ And where the certificate of acknowledajnient to a deed de- scribed it as the " foregoins: mortgage," it was held to be a clerical error, not affecting the certificate.- In another case the words "legally authorized and assigned" were held to import the same as " duly commissioned and sworn. "^ But important words, omitted in the certificate, cannot be supplied by intendment or construction,* nor the defect helped by parol evidence.^ The fact of acknowledg- ment, and the identity of the party, are essential parts, and must be stated in the certificate. Where the certificate omits to state that the party acknowledging was personally known, or in some way fails to identify such party, it is insufficient.*' And the party who executes a deed mustac- 1 Rosenthal V. Griffin, 23 Iowa, 263; Davis v. Bogle, 11 Ileisk. 315; Todd V. Jones, 22 Iowa, 14G; Alexander v. Merry, 9 Mo. 514; Hunt v. Johnson, 19 X. Y. 279; Slicldon v. Stryker, 42 Barb. 284; Jackson v. Gumaer, 2 Cowen, 552; Thurinan v. Cameron, 24 Wend. 87; Hopkins v. Delaney, 8 Cal. 85; Welch v. Sullivan, Id. 511. In Scharfenburg v. Bishop, 35 Iowa, 60, where the woi'd " appeared*' was omitted after the phrase "before me personally," it was held that the omission was mani- festly a clerical error, and not fatal to the validity of tlie instrument. - Ives V. Kimball, 1 Mich. 308. So, also, where the certificate stated that " the contents and meaning of said husband were fully explained and made known to her," instead of using the word " deed '' in place of the word " iuisbaud." Calumet, etc. Co. v. Russell, 68 111. 426. 3 Hall V. Gittings, 2 Har. & J. (Md.) 380. ■• Jacoway v. Gault, 20 Ark. 190; Stanton v. Button, 2 Conn. 527. 5 Hayden v. Westcott, 11 Conn. 129; Pendleton v. Button, 3 Conn. 406; O'P^errall V. Simplot, 4 Iowa, 381. Where the certificate of acknowl- edgment of a deed by a married woman does not show that she was ex- amined separate and apart from her husband, parol evidence is not ad- missible to prove that slie was so examined, llarty v. Ladd, 3 Oreg. 353; Jordan v. Corey, 2 Ind. 385. « Fogarty v. Finley, 10 Cal. 239; Wolf v. Fogarty, 6 Cal. 224; Kimball V. Semple, 25 Cal. 440; Hayden v. Westcott, 11 Conn. 129. See Sanford V. Bulkley, 30 Conn. 344; Tully v. Davis, 30 111. 103; Brintonv. Seevers, 12 Iowa, 389; Pecock v. Tompkins, 1 Humph. 135; Fall v. Roper, 3 Head, 485; Johnson v. Walton, 1 Sneed, 258; Garnett v. Stockton, 7 Humph. 84; Callaway v. Fash, 50 Mo. 420; Smith v. Garden, 28 Wis. €85; Pickney V. Burrage, 31 N. J. L. 21. When the statute provides that the certificate shall set forth that the person making the acknowl- edgment is "personally known,"' the words "I am satisfied," will not ART. I. ACKNOWLEDGMENT OF DEEDS. 235 knowledge it to the officer to be his deed, either by the use of that word, or some other word equivalent to it, or it will be invalid.^ Statutory provisions in regard to the private examination of married women ^ are also construed to be mandatory."^ Thus, where thewoi-d "voluntary" was omit- sufflce. Shepard v. Carriel, 19 111. 313. The statute requirino^ an officer to certify to his personal knowledge of the person acknowledging being the individual w'hose name is subscribed to the deed, does not apply to sheriffs' deeds. Lamarque v. Langlais, 8 Mo. 328; Ogdt-n v. Walters, 12 Kan. 282. In Tennessee it is not necessary that the magistrate cer- tify that he is personally acquainted with the wife. Mount v. Kesterson, 6 Coldw. 452. A certificate of acknowledgment which simply describes the persons acknowledging as "grantors of the within indenture," with- out stating that they were known to the officer to be the same persons ■who are described in, and who executed it as prescribed by X. Y. stat- ute, is insufficient to entitle the deed to be recorded. But it is effectual to pass the title of the grantors, save as against a subsequent bona fide purchaser. Fryer v. Rockefeller, 63 N. Y. 208. A certificate stating that the grantor is "personally known" to the officer is a substantial compliance with a statute requiring such certiffcate to show that the grantor is a person With whom the officer is "personally acquainted," and is sufficient. Kelly v. Calhoun, 95 U. S. 710. When the certificate does not contain the words of identity the deed and attestation may be resorted to, to show the fact. Hiler v. LaFlesh, 59 Wis. 465. And cer- tificate stating that grantor "personally came" is sufficient. Schley v. Pullman Car Co., 7 S. C. Kep. 730. 1 Short V. Coulee, 28 111. 219; Stanton v. Button, 2 Conn. 527; where the word "acknowledge" was omitted. Inlngraham v. Grigg, 13 Smcd. ■& M. 22, the court held that the certificate of an officer authorized to take the acknowledgment of deeds, that the grantor "made oath that he signed, sealed and delivered said deed as his proper act," though in the form of a jurat, was not thereby deprived of the character of an acknowl- edgment. And see Spitznogle v. Vanhesoch, 13 Xeb. 338. 2 See as to the various provisions Stimson's Amer. Stat. §6501. 3 Mount V. Kesterson, 6 Coldw. (Tenn.; 452 ; Murdock v. Memphis, etc. K. Co. 7 Baxter (Tenn.), 557; Laidley v. Knight, 23 W. Va. 735; Mc- Mullen v. Eagan, 21 W. Va. 253 : Muir v. Galloway, 61 Cal. 498 ; Powell's Appeal, 98 Pa. St. 403 ; Clayton v. Rose. 87 N. C. 106 ; Coombes v. Thom- as, 57 Texas, 321; Langten v. Marshall, 59 Tex. 276; Belo v. Mayes, 79 Mo. 67; Coburn v. Herrington, 114 111. 104; Davis v. Agness, 67 Tex. ^06. And see Walter v. Weaver, Ibid. 569; In New Jersey the acknowledgment by a husband and wife of a mortgage on land of the wife, her separate estate, without her acknowledgment on pri- vate examination apart from her husband, was held defective, and the mortgage void as to her. Armstrong v. Ross, 20 N. J. Eq. 109. And see Woodbourne v. Gorrel, 66 N. C. 82; Linn v. Patton, 236 COKVEYAJS'CING. CH. IV. ted in the certificate of the wife's acknowledgment, it was- held that the deed conveyed no title. ^ And certificate fail- ing to state that the deed was explained to her, as required by statute, would be insufficient to pass the wife's interest,^ and a married woman is not estopped in the absence of fraud or misrepresentation, by a deed shown on its face not to have been acknowledged in comj)liance with the statute.^ "The certificate of the acknowledging officer should be founded on his own knowledge that the wife acts freely and independently of any coercion on the part of the husband, which the law presumes from his pres- ence, even though it ma}^ not be apparent; and such knowledge should be obtained by intelligent interchange of conversation, without rel^dng on the aid or state- ments of any person other than the one whose acknowledg- ment he proposes to take. A mere formal inquiry, made in English to a person who does not understand that language,, is not such intelligent conversation." * § 2()1. The Certificate must be Subscribed — Seal of Office. — The certificate of acknowledgment must be sub- scribed. The name of the officer in the body of the certificate is not sufficient.^ And where required by statute,. 10 W. Va.l87; Becker v. Quigg, .')4I11. 390; Robbiusv. Harris, 96 N. C. 557. The statutory provisions concerning the privy examination of marriisd women acknowledging deeds have no application to thi' case of a married woman living apart from her husband under decree of separation. Delafu'ld V. Brady, :58 Hun (N. Y.), 404. And see Hand v. Hand, GSCal. 135. If a married woman's mental condition was such that herprivj' ex- amination cruld not be made, iier deed is void. Garth v. Fort, 15 Lea (Tenn.) , (i83. Since the adoption of Ark. Const. 1874, a married woman's deed is good without ackaowledgment. Stone v. Stone, 43 Ark. GGO. 1 Laird v. Scott, 5 Heisk. (Tenn.) 314. In Maryland the omission of the words "ill usage" AeZ(Z to invalidate the deed. Hawkins v. Burress, 1 liar. &J.513. 2 Boiling v.Teel, 76 Va. 487; Burnettv. McCluey, 78 Mo. 676; Langten V. Marshall, 50 Tex. 296. ^ John.son v. Bryan, 62 Tex. 623 : Coal Co. v. Pasco, 79 111. 170. ^Fisher v. Meisler, 24 Mich. 447; Harrison v. Oakman, 56 Mich. 390. * Marston v. Brashaw, 18 Mich. 81. See Watson v. Clendenin, OBlackf. 477; Duncan v. Duncan, 1 Watts, 322; Barney v. Sutton, 2 Watts, 31. ART. I. ACKNOWLEDGMENT OF DEEDS. 237 it must be attested by his seal of office,^ A notary's cer- tificate which declares that he has affixed his seal thereto, is defective without it ;^ he cannot substitute a {)rivate seal or scroll.^ But in some of the States, the acknowledgment of a deed taken before an officer that is ectitled to have a seal is good, although he has none.* In which case an acknowl- edgment taken under his private seal is valid, if it is stated in the instrument that he has no seal of office.^ As to what will constitute a sufficient official seal, it has been held that, in the absence of any statutory regulations on the subject in the State where the notary derives and exercises his authority, any device upon which are engraved words ■descriptive of his office, and the name of the county and State of his residence, constitutes a sufficient official seal, without the stamping of the notary's name thereon.^ § 262. The Acknowledgment to be Certified on the ^ame Paper with the Deed. — Where the statute provided that the officer takino; the acknowledo-ment of a deed should certify such acknowledgment on the same sheet on which the deed was printed or written, a certificate upon a sepa- 1 Hastings v. Vaugh, 5 Cal. 315; Booth v. Cook, 20 111. 129; Wetmore V. Laird, 5 Biss. 160; Buell v. Irwin, 24 Mich. 145; Miller v. Henshaw, 4 Dana, 325. The omission in the certificate of the word "seal" between "and — of office," was held immaterial. Xichols v. Stewart, 15 Tex. 226. The signatme of J. B. andaseal with the words "J. B., Commissioner, N. J.," appended to an acknowledgment of a deed, are sufficient proof that it was executed under his hand and seal, without a statement to that effect in the paper. Harrington v. Fish, 10 Mich. 415. Official seal not necessary to certificate of acknowledgment in Alabama. Harrison v. Simons, 55 Ala. 510. 2 Ballard v. Perry, 28 Tex. 347; Mason v. Brock, 12 111. 273. « Skinner v. Fulton, 3!) 111. 484; Mason v. Brock, 12 111. 273. 4 Ingoldsby v. Juan, 12 Cal. 564. See Irving v. Brownell, 11 111. 402 ; Farnum v. Buffum, 4 Cush. 260; Fund Commissioners v. Glass, 17 Ohio, 542; Jaques v. Weeks, 7 Watts. 261 ; Hackney v. Williams, 6 Yerg. 340. And see Colby v. McOmber (Iowa), 32 N. W.Kep. 459. ^ Fogarty v. Sawyer, 23 Cal. 570; Collins v. Boyd, 5 Dana, 316. 6 In re Phillips, 14 Nat. Bkcy. Reg. 219. Notwithstanding Gantt's Ark. Dig. § 4302, providing that a notarial seal "shall be engraved so as to present" certain emblems, the absence of them from the seal would not invalidate the certificate of acknowledgment. Sonfild v. Thompson, 42 Ark. 46. 238 CONVEYANCING. CH. IV. rate strip of paper attached to the deed by a wafer, with the officer's seal upon the same, was held bad.^ § 2()3. The C<'rtiticatc how far Conclusive of the Facts Stated. — All (idiccr, after having taken and certified an ac- knowli'dgnu'iil, will not he pcrniiUcd to defeat its effect by impeaching his own certificate. - But in some of the States, a certificate in due form is only jn-iiaa facie evidence that the officer before w hoin il was taken com})lied witii the law in taking the same.-^ Thus, it has been held that " the ac- knowledgment, annexed to a deed, that it was the free and voluntary act of the grantor, is not conclusive of the fact, but may be disproved by proper evidence, when the grantor seeks to avoid the deed on the ground of fraud, force or intimidation."* But the proof must be clear and un- doubted.^ Extraneous evidence is also admissible in some 1 Winkler v. Higgins, Ohio St. 599. 2 Central Bank v. Copeland, 18 Md. 305; Stone v. Montgomery, 35 Miss. 83; Allen v. Lenoir, 53 Miss. 321. A mortgage bore the notarial seal and signature of 8. S., but S. S., testified that he never affixed his seal to it, and that he believed himself to be the onlyS. S. notary in Cin- cinnati. i/^eW, that the seal j9;'ma/aae proved itself, and that the pre- sumption in favor of the deed was not rebutted. Wright v. Bundy, 11 Ind. 398. A certificate of acknowledgment is not invalidated or af- fected by the want of recollection of the grantor or commissioner as to the tranaction. Tooker v. Sloan, 30 N. J. Eq. 394. 3 Dodge V. Hollingshead, (i Minn. 25: Annan v. Folsom, Id. 500; Hutchison v. Rust, 2 Gratt. 394; Jackson v. Schoonmaker, 4 Johns. 161; Edgerton v. Jones, 10 Minn. 429. But see Bissett v. Bissett, 1 H. & Mc. H. 211; Hartley v. Frosh, G Texas, 208. ■* Central Bank v. Copeland, 18 Md. 305. In the absence of any proof of fraud or collusion, the magistrate's certificate must prevail over the unsupported testimony of the grantor that it was forged. Lickmon v. Harding, 65 111. 505; Russell v. Baptist Theological Union, 73 111. 337. * The certificate of the acknowledgment of a deed imports verity, and cannot be overcome, except by clear and satisfactory evidence. The evidence of the grantor denying the execution of the deed, and the opinion of experts that the signature thereto is not that of the grantor, is not sufficient. Proof that the signature is not in the handwriting of the grantor, falls far short of showing it to be a forgery. By acknowl- edging, the party adopts the signature and makes it his own. Tunison v. Chamblin, 88 111. 379. And see Crane v. Crane, 81 111. 165; Lowell v. Wren, 80 111. 238; Marston v. Bitteuham, 70 111. Oil; Kerr v. Russell, 69 111.666; Calumet, etc. Dock Co. v. Russell, 68 111.426; Lickmon v ART. I. ACKNOWLEDGMENT OF DEEDS. 239 of the States to prove that the wife was not examined, in taking the acknowledgment, privily and apart from her husband, as required by law.^ But in Maryland, Texas and Indiana the certificate is conclusive." As a general rule, it is conclusive in the absence of fraud or imposition; and although it is not conclusive between the parties, it is as to subsequent purchasers for a valuable consideration without notice.^ § 2(54. Mistakes in the Certificate may be Corrected, how. — The officer taking the acknowledgment of a deed has a right, and it is his duty to correct, at any time, any mis- take in his certificate, conformably with the facts ;* and he may be compelled to do so by mandatnus; but a court of equity has no jurisdiction to correct such a mistake.^ Nor is the omission of a word cured by its insertion in the record of the deed.*' A fraudulent alteration in the certificate of acknowledgment affects the proof of its execution, but not the validity of the deed.'^ It may be added that a defect- ive acknowledgment can only be taken advantage of by a purchaser for valuable consideration.^ Harding, 65 111. 505; Monroe v. Poorman, 62 111. 523; McPherson v. San- born (Supreme Court of 111.), 7 Cent.L. J. 195. ^ Ford V. Teal, 7 Bush, 15G; Woodhead v. Foulds, Id. 222; Dodge v. Hollingshead, 6 Minn. 25; Landers v. Boltou, 26 Cal. 400; Borland v. Walrath, 33 Iowa, 130. The certificate may be impeached for fraud, du- ress, or undue influence exercised by the husband over the wife. Eyster V. Hatheway, 50 111. 521. See Fisher v. Meister, 24 Mich. 447. 2 Bissett V. Bissett, 1 H. & McH. 211; Hartley v. Frosh, 6 Texas, 208; McNeely v. Kucker, 6 Blackf. 301. 3 Williams v. Baker, 71 Pa. St. 482. See Bishop v. Schneider, 46 Mo. 472. Parol evidence cannot, in the absence of fraud, be admitted to contradict a fact expressly stated by the clerk in his certificate of ac- knowledgment. Harpendiug v. Wylie, 14 Bush (Ky.), 380. * Jordan v. Corey, 2 Ind. 385. 5 Wauuall V. Kem, 51 Mo. 150; O'Ferrell v. Simplot, 4 Iowa, 381. But see Simpson v. Montgomery, 25 Ark. 365. 6 Newman v. Samuels, 17 Iowa, 528. ^ Devinney v. Reynolds, 1 Watts & S. 328. Parol evidence held not admissible to show that the acknowledgment by the sheriff of a deed had been fraudulently altered by the prothonotary clerk. Hoffman v. Coster, 2 Whart. (Pa.) 453. ** In all cases, the purchaser must show that he paid the purchase-money 240 CONVEYANCING. CH. IV. § 2G5. Statutes D<'sisii<'(l to Cure Defects in Acknowl- edgments have been enacted at different times, in several of the States, some of w Iii(;h have hceii held void as im- pairing vested riglits ;' while others have been held binding, notwithstanding their retrospective operation.- In Alabama, the act of February 8, 1858, providing that " no deed of conveyance of any land, heretofore made and executed by husband and wife, shall be deemed invalid, or defective, or insufficient in law, by reason of any informality or omis- sion in the acknowledgment," was held unconstitutional.^ In Iowa, the act of 1858, declaring the acknowledgment of all recorded deeds to be valid, whether acknowledged in compliance with previously existing laws or not, is not con- sidered void as impairing the obligation of contracts, but is. so in so far as it impairs vested rights.'* And the Penn- sylvania statute of 1840, to cure defects in acknowledg- ments, is not construed retrospectively so as to affect the rights of third persons, not parties to them.-^ In Texas, under the statute providing that where the acknowledgment of any instrument in writing may be properly made but de- fectively certified any party may have an action in the dis- trict court correcting the certificate, it was held not to "before he ^vill be entitled to relief on account of not having notice. Mastin v. Haley, Gl Mo. 19G; Infra, § 288. 1 Lof,^an v. Williams, 70111. 175; Carpenter v. Dexter, 8 Wall. 513. 2 Raverty V. Fridge, ^ ]\[c'Lean, 230; Barton v. Morris, 15 Ohio, 408; Watson V. Mercer, 8 Pet. 88; Barnet v. Barnet, 15 Serg. & E. (Pa.) 72; Tate V. Stoolitzfoos, 16 Serg. & R. 35; McMasters v. The Common- wealth, 3 Watts, 294. 3 Alabama, etc. Ins. Co. v. Boykin, 38 Ala. 510. 4 Brinton v. Seevers, 12 Iowa, 389, It does not cure defects in acknowl- edgments made after it took effect. Reynolds v. Kingsbury, 15 Iowa, 238; Jones V. Berkshire, 7(L 248. And does not apply against a pur- chaser without notice for a valuable consideration. Newman v. Samuels, 17 Iowa, 528. Under Code Iowa, § 19(!7, acknowledgments defectively taken are cured, if taken and certified prior to April 30, 1872, and duly recorded. Buckley v. Early (Iowa), 33 X. W. Rep. 709. See Garnett V. Stockton, 7 Humph. (Tenn.) 84. « Green v. Drinker, 7 Watts & S. 440. ART. II. KEGISTRATION OF DEEDS. 241 permit the validuting of a conveyance when the law had not been complied with in taking the acknowledgment.^ § 2(^6. Proof by Subscribing Witnesses. — The statutes of many, if not all of the States, provide for proving the ex- ecution of deeds and other instruments intended to he re- corded, by the oath of a subscribing witness, or witnesses, or, when the witnesses cannot be had, by proof of the handwriting of the grantor and witnesses, which shall have the same effect as an acknowledgment.- But the practice is yery seldom resorted to. A defect in, or the want of an acknowledgment may frequently be cured in this way. But where a married woman is required to be examined by the officer, she must, in general, be present and acknowledge the instrument. ARTICLE II KEGISTRATION ()F DEEDS. SECTION. 269. Registration differs from earollinent. 270. Equivalent to livery of seizin. 271. When the record of a deed is constructive notice. 272. At what time the record takes effect as notice. 273. Time allowed for recording — precedence of record. 274. When a deed is to be considered as recorded. 275. In what way the date of filing may be proved. 276. To whom the record of a deed is notice. 277. Of what facts the record is notice. 278. As to deeds disconnected from the chain of title. 279. Notice from any other source equivalent to record. 280. Possession of the premises is notice, when. 281. As to what will constitute actual notice. 282. Xotice to the agent is notice to the principal. 283. The degn e of proof required to establish actual DOtice. 284. An unrecorded deed is void, when. 1 Johnson v. 'J'aylor. 60 Tex. 360. - Stimson-s Amer. Stat., §§ 1590-1606. 242 CONVEYANCING. CI I. IN . •2ST}. Of purchaser,* by (luitclaini dt-ed. 280. As to the rights of a purchaser from an heir. 287. Purchasers at sheriffs sale entitled to benefit of statute. 288. Equity extinguished by a purchase without notice. 289. Effect of a mistake in the record. 290. Seal of ollicer taking aeknowiedgment need not be recorded. 291. Whether the record of a deed is effectual until indexed. 292. Corrections and alterations of the record. § 209. Kesistration Differs from Enrollmeut. — The system of recording deeds, which has been universally adopted throughout the United States, is something distinct from the enrollment of deeds of bargain and sale, as re- (juired by the Knglish statute,^ which was essential to the validity of such deeds. With few exceptions, the validity of deeds, as between the original parties to them, is not affected by their registration.- Enrollment, according to the English statute, has never been considered necessary to the validity of a deed of bargain and sale in this country.^ § 270. Registration Equivalent to Livery of Seizin. — The purposes of registration are chief!}' to make })ublic, and to preserve the evidence of the transfer of lands.* Deeds entered upon the public records are, of course, open to the inspection of all persons who may have occasion at any time to examine the same. And this supersedes the necessity of livery of seizin.-^ In Pennsylvania, the act which established a registry of deeds i)rovided that all deeds or conveyances made, or to be made, and proved or 127 Henry VIII., eh. 10. 2 See §§ 249, 279 . The intention of the statutes in North and South Carolina seems to be that deeds not recorded Avithin the])resciibed time shall become void. S. C. Kev. Stat. 1873, p. 422, § 1 ; X. C. Laws 1S70-7, ch. 23, § 1. See § 273, note. 3 Givan v. Doe, 7 Jilaekf. 210; Jackson v. Wood, 12 Johns. 74; Welch V. Foster, 12 Mass. 90; Report of Pennsylvania .Judges on Hritish Stat- utes, 3 IJinney, 59,"). ■* As to the various provisions of statute see Stimson's Amer. Stat., §§ 1010-1032. ■'Mathews v. Ward, 10 Gill c'c J. (Md.) 443; Bryan v. Bradley. 10 Conn. 474; Higbce v. Kice. ."> Mass. 3-14; Caldwell v. Fulton, 31 Fa. St. 483; Wyman v. Brown. ."iO Me. 100; Williamson v. Caretor, 51 Me. 452; Blethen v. Dwinel, 34 Me. 135. ART. II. REGISTRATION OF DEEDS. 243 ucknowledofod :iih1 recorded, according to its provisions, should bo of the same force and effect for the siving of possession and seizin and making good the title and assur- ances of the land, as deeds of feoffment, with livery of seizin, or deeds enrolled in any of the king's courts were in Great Britain.^ And statutes of similar import have, it is believed, been enacted in other States. § 271. Wlieij tlie Record of a Deed is Constructive Notice. — Kegistration is also made to operate as construct- ive notice between prior and subsequent purchasers, creditors and mortgagees. But it is to be remembered, that the sys- tem is the creation of the statute, and the registration of a deed or other writing, is of no effect as notice, unless made so by statute.- Thus it follows, that the record of a deed is not constructive notice of its existence or contents, un- less the prerequisites prescribed by law to be observed in respect to its registration, such as its acknowledgment or proof, have been complied with.^ The placing of a deed 5 Bright. Purd. Dig. Stat., vol. 1. p. 472, § 74. 2 Baker v. Washingtou, 5 Stew. & P. (Ala.) 142; Tatuni v. Young, 1 Port. (Ala.) 298; Barney v. Little. 15 Iowa, 527: Burton v. Martz, 38 Mich. 7G2. The registration laws of the State do not apply to the dis- jjosition of lands belonging to the United States; but the rights of par- ties Avill be governed by the regulations established by Congress, until the title has tiually passed from the government. David v. Rickabaugh, 32 Iowa, .540. •'Gait v. Dibrell. 10 Yerg. 14G: Holliday v. Cronnvell. 26 Tex. 188; ^\'hitehead v. Foley. 28 Tex. 268; Isham v. Bennington Iron Co., 19 Vt. 230; Pope v. Henry, 24 Yt. 560; Lewis v. Baird, 3 McLean, 56; Walker V.Gilbert, 1 Freem. Ch.85: Suiter v. Turner, 10 Iowa. 517; Brinton v. Seevers, 12 Iowa. 3S9: Keynolds v. Kingsbury, 15 Iowa, 238; Mummy v. Johnson, 3 A. K. Marsh. 220; Edwards v. Brinker, 9 Dana, 69; Dewitt v. Moulton, 17 Me. 418: Brown v. Luut, 37 Me. 423; Blood v. Blood, 23 Pick. 2.52; Ely v. Wihox. 20 Wis. 523; Ilerndon v. Kimball, 7 Ga. 432; Schultz v. Moore, 1 McLean, 523; Stevens v. Hampton, 46 Mo. 408; Chou- teau v. Joues, 11 111. 300; Bishop v. Schneider, 46 Mo. 472 : Cox v. Wayt, 26 W. Va. 807. But such an instrument is valid as to all parties who have actual notice of its contents. Bass v. Estill. 50 Miss. 300: Pringle V. Dunn, 37 Wis. 465. The acknowledgment before a competent officer and not the attestation entitles an instrument to registration. Brydon V. Campbell, 40 Md. 331. 244 CONVEYANCING. CH . IV. on record, in :i itiMiinor not autliori/cd hv law, gives it no additional validity or clTeel.' And liic same is ti-ue of any instrument not re(|uire(l I)y law to he recorded.- Nor is tiie recoi'd ot a deed, defeetivc in tiie formal requisites of its execution or proof, notice of title to any one.' In someof the States, however, among whieli are Jvan!«as and Illinois, defectively executed deeds may he recorded, and arc notice of the equities created by tliem.' TIk^ record of a deed is constructive notice of such facts only as a reader may learn hy an examination of the record. Such notice does not ex- lend to facts which he might have ascertained hy an inquiry suggested hy the record. And a record which does not show that the instrument was entitled to he recorded, such as one that omits the authentication, is inoperative; it does not give legal notice at all."' It has heen held that a forged ' Ibid; Tillman v. Cowaud, 12 Snied. & M. '2(J2; Oatiiiaii v. Fowler. 43 Yt. 462. •■^ Moore V. Hunter, () ill. :n 7; Jteed v. Cosale, 4 Ind. 283; Parret v. Shaubhut. .") Minn. 323; Ludlow v. Van Xe^s. S Bosw. (N". Y.) 178; Lewis V. Baird, 3 McLean, 50; Villard v. Kobeit, ] ^strobli. Eq. 393; Ooininonwealth v. Kodes, (> B. Mou. 171 ; Burnhani v. Chandler, lo Tex. 441 ; Bossard v. White. liich. Eq.483; Galpin v. Abbott, G Mich. 17; Graves v. Graves, G Gray, .JDl ; Pringle v. Dium, 37 Wis. 449; ^louroe v. Hamilton, GO Ala. 227. In the following cases the recording of a cer- tified copy of the record of a deed was held not authorized by the re- cording acttJ. Lund v.ltice, 9 ]Minn. 230; ijewis v. Baird, 3 McLean, 56; Stevens v. Brown, 3 Yt. 420; Pollard v. Lively, 2 Gratt. 216. ■^ Harper v. Barsh, 10 Kich.Eq. 149; Ishani v. Bennington Iron Co., 19 Yt. 24."): Bass V. Estill, .lO Mis^. 300; Pringle v. Dunn, 37 Wis. 45G; Loughridge v. Bowland, 52 Miss. r)4(i; Wickershani v. Chicago Zinc Co., 18 Kan. 481 ; Dozier v. Barnett, 13 Bush, 457: Westerman v. Poster, 57 Ind. 408. ^ Simpson v. Mundec, 3 Kan. 172; Brown v. Simpson, 4 Kan. 7G; Reed V. Kemp, IG 111. 44.'); LI. R{i\. Stats., 1877, \). 277, § 31. And see Gilles- pie V. Reed, 3 McLean, 377; Healey v. Worth, 3.") Mich. IGG. A deed of trnst executed by a married woman, her husband not uniting therein, to secure the purchase-money due on the premises, though void as a con- veyance, is, nevertheless, an instrument in writing relating to real estate, and, when recorded, is constructive notice to all subsequent purchasers of the lien of the original vendor ujion the same for the unpaid price- Morrison V. Brown, 83 111. 562. Recording a void deed does not give constructive notice of equities which (by reason of facts aliiinde) the grantee may have under it. Loomis v. Bush, 36 Mich. 40. •'' Taylorv. Harrison, 47Tex. 454. ART. II. UECilSTRATlON OF DKKDS. 245 deed is not within the ()[)ei';ili()n of the i'ec'ordin*>- acts, and that however iniioccnti}' one may have purchased under such recorded deed, lie has no riglits as against the true owner of tlie hmd.' The record of a deed in the wi'ong county has no effect as notice.- But where a deed lias been once . § 2149. But three months are allowed for recording '•all conveyances, mortgages, and instruments in the nature of mortgages, to secure debts created at the dates thereof." Und. § 21(i6; Ark. Dig. Stats.. 1874, § .5025; Cal. Civil Code, 1874, ij 1170; Conn. Gen. Stats., 1875, p. 3.53, § 11; Col. Gen. Laws, 1877, p. 139, § 17; Dakota Kev. Code, 1877, p. 341 ; Bush's Fla. Dig., 1872. p. 151, § 9; 111. Kev. Stat., 1877, p. 277, § 30: Iowa Code, 1873. § 1941 ; Kas. Comp. Laws, 1879, § 1043; La. Kev. Stats., 187G, § 3081 ; Me. Kev. Stats , 1871, p. 500, § 8; Mass., Cush- ing V. Ilurd, 4 Pick. 252, 256; Mich. Comp. Laws, 1871, § 4231: Minn. Stats, at Large, 1873, p. G39, § 21 ; Mo. Kev. Stats., 1879, § 691; Gen. Stats. Neb.. 1873, p. 875. § IG; Gen. Stats. N. II., 1867, p. 252, § 4; Tenu. Stats., 1871, §2072; Woodward v. Boro, Lea (Tenn.), 078; Tex. Kev. Stats., 1879, §4299; Gen. Stats. Vt., 1870, p. 448, § 7; Va. Code, 1873, Tit. 33, ch. 117, § 2; Wis. Stats., 1871, ch. 86, § 27. - Kev. Stats., 1873-4, p. 62. Deeds of trust and mortgages are notice from the date of filing only. Ibid. 3 Ga. Code, pt. 2, § 2705; Del. Rev. Code, 1852, p. 269. * Briglit. Purd. Dig. Stats. Pa.. 1873, p. 473, § 476; Ohio Kev. Stats., 1880, 5; 1131. Mortgages take effect only from the date of record, as to subsequent purchasers without notice. Ibid., § 4133; Md. Kev. Code, 1878, art. 44, § 16. ART. II. REGISTRATION OF DEEDS. 247 months;^ in Kentucky, sixty days ;- in Indiuna, forty-five days;^ in New Jersey, fifteen duys,^ and Oregon, five days.^ § 273. Time Allowed for Recording- — Precedence of Record. — In general, where statutes require deeds to be recorded within a prescribed time, a deed thus recorded is valid against one who purchases between the date of its delivery and the date of record.'' But it seems that, in South Carolina, the first deed recorded wiO take precedence over another that was recorded later, although still in time." Deeds recorded after prescribed time are, in most States, notice from the date of record, but do not relate back to any [)rior time.^^ In Georgia the only difference between recording within twelve months, and afterwards, is that in the first case the record of a deed is notice from the time of execution, in the latter from the time of record.^ If two successive deeds are made to the same land, and neither recorded within the prescribed time, the recording of the 1 Miss. Rt'v. Code, 1871, § 2806. Mortgages are valid only from the date of deposit witli the clerk for record. Claiborne v. Holmes, 51 Miss. 146. 2 Gen. Stats., 1870, ch. 24, § 14. Mortgages take effect only from the date of record. Ibid., § 10. See also, Finlay v. Spratt, 14 Ky. 225. s Kev. Stats. Ind., 1887, p. 635, § 16. •* N. J. Revision, 1877, p. 155, § 14. And see Semon v. Terbun, 40 N. J. Eq. 364. The N. J, registry act does not apply to leases. Hutchin- son V. Bramhall, 42 X. J. Eq. 372, reversing S. C. 40 N. J. Eq. 83. 5 Fleschuer v. Sumpton, 12 Oreg. 161. « Dale v. Arnold, 2 Bibb (Ky.), 605; Hamilton v. Russell, 1 Cranch, 315; ante, § 284. " The object of the statute appears to be to compel all deeds to be re- cor.ed within the prescribed time, or to become void. Deeds made out of the State may be recorded within one year, and, if made out of the United States, within two years. Mortgages must be recorded within sixty days. S. C. Rev. Stat. 1873, p. 422, § 1. In North Carolina the provision is as follows: '• Xo conveyance of land shall be good unless the same * * shall be registered in the county where the land shall lie, within two years after the date of the said deed." Laws 1876-7, ch. 23, § 1. 8 Meni v. Rathbone,21 Ind. 454; Irvin v. Smith, 17 Ohio, 226; Mallory V. Stodder, 6 Ala. 801 ; Delane v. Moore, 14 How. 253; Steele v. Mansell. 6 Rich. (S. C.) 437; Belk v. Massey, 11 Rich. 614. 9 Anderson v. Dugos, 29 Ga. 440. And see Vreeland v. ClaiMin, 24 N. J. Eq. 313. 248 CONVEYANCING. CH. IV. second after that time, hut prior to the tirst, does not give it precedence over the first. ^ But in Pennsylvania and Ohio, in such a case, if tiie second deed is taken without notice of the first, and recorded first, it will take preced- ence.^ § 274. When a Deed is to b«' C Baker v. Mather, 25 Mich. 53. See ante, § 271. ART. II. REGISTRATION OF DEEDS. 251 the title is based, must be examined as t« an}' facts which they may contain, at the purchaser's peril. § 278. Deeds Disconnected from the Chain of Title. — The record of a deed is notice to those only who claim the title through, or under the same grantor. It would not be notice to persons claiming title under a different source.^ Nor to a grantor in a deed already on record, of acts done by his grantor subsequent to the recording of the first dced.- And, in many of the States, a purchaser is not bound to take notice of the record of a deed made by a grantee of the same grantor, if the deed by which the grantee claimed is not on record, so as to complete the chain of title. ^ Upon this principle it has been held, that the recording of a deed made by an attorney in fact does not operate as constructive notice, unless the power of attorney under which it is made is recorded.* And if a vendee makes a mortgao-e to his vendor, who puts it on record, it is no notice of the vendee's deed from the vendor, which is not recorded, as against a second pui'chaser from such vendor.' But in New York, a deed reciting the power of attorney by virtue of which it was executed, which was duly deposited for record, was held to be sufficient notice of the power, to a subsequent purchaser, who was equally affected by it as if the power had been deposited.*^ And in Texas it seems not 1 Long V. Dollarhide, 24Cal.21S; Tillon v. Hunter, 24Me.29; Crockett V. Maguire. 10 Mo. 34; Losey v. Simpson, 11 X. J. Eq. 246; Embury v. Conner, 2 Saudf. 98; Pierce v. Turner, 5 Craneh, 154; Rodgers v. Burch- ard, 34 Tex. 441 ; Corbin v. Sullivan, 47 Ind. 356; Rankin v. Miller, 43 Iowa, 11. 2 George v. Wood, 9 Allen, 80. See Roe v. Neal, Dudley (Ga.), 168; Whittington v. Wiight, 9 Ga. 23. 3 St. John V. Conger, 40 111. 535: Fenno v. Sayro, 3 Ala. 458; Losey v. Simpson, 1! N. J. Eq. 246; Ely v. Wik-ox, 20 Wis. 523; Page v. Waring, 76 N. Y. 472. ** Graves v. Ward, 2 Duv. (Ky.) 301. Notice in fact of a deed may operate availablj^ in equitj% ttiough the power of attorney under which the deed was made was not deposited with the deed for registration. Stewart v. Hall, 3 B. Mon. 218. The power must accompany the grant upon the records. Oatman v. Fowler, 43 Vt. 462. '•> Losey v. Simpson, 11 N. J. Eq. 246. ^ Jackson v. Xeelv, 10 Johns. 374. 252 COXVEYAXCING. CH. IV. to be necessary, in order to (jive effect to registry, that the record shouhl contain a complete chain of title. A single deed is notice of what it rontains.^ § 279. Notice from Any Other Source Eqiiivahiit to Record. — Notice, brought home to subsequent purchaser or mortsrafee from any other source, has the same effect as ren^istration. It is to he remembered that, as a general rule, registration has nothing to do with passing the title. It simply operates as notice that the transfer has been made. In a few instances statutes have been enacted, requiring deeds made by marrie Notice which puts the j^urchaser on inquiry merely, is not sufficient. ART. II. REGISTRATION OF DEEDS. 255 whatever is sufficient to direct the attention of a purchaser to the prior rights and equities of others, and enable him to ascertain their nature by inquiry, will be sufficient to charge him with knowledge of all facts which an inquiry, suggested by such information, prosecuted with due diligence, would have disclosed to him.^ When he has knowledge of any fact sufficient to put him on inquiry, he is presumed to have made the inquiry, and ascertained the extent of the rights he may possibly prejudice, or to have been guilty of a degree of neo;ligence fatal to the claim to be considered a bona fide purchaser. ^ But the knowledge must have a reasonable certainty as to time, place and circumstances,-^ and must be such as would naturally put a prudent man upon inquiry in a direction where he might learn the actual facts.^ And a purchaser may meet this by showing that he made diligent but ineffectual inquiry.^ Dey V. Dunham, 2 Johns. Cb. 182. Such notice must not merely be a probable, but a necessary and unquestionable inference from the facts proved. McMechan v. GriflBng, 3 Pick. 149. It must be sutiicient to charge the latter purchaser with fraud, or must be clearly proved. Emmons v. Murray, 16 X. H. 385. It must be such notice as affects the conscience. Muudy v. Vawter, 3 Gratt. 518; Barrett v. Barrett, 31 Tex. 344. 1 Bump on Fraud. Conv., p. 478; Williamson v. Brown, 15 X. Y. 362; Martel v. Somers, 26 Tex. 351 ; Wilson v. Hunter, 30 lud. 472; Hankin- son V. Borbour, 29111. 80; Sigourney v. Munn, 7 Conn. 324; Partridge v. Smith, 2 Biss. 183 ; Muldrow v. Eoblnson, 58 Mo. 331 ; Heaton v. Prather, 84 111. 330. 2 Baker v. Bliss, 39 X. Y. 70; Hook v. Mowre, 17 Iowa, 195. 2 Parks v. Willard, 1 Tex. 3.50. The notice of a deed, which is neces- sary to stand in the place of recording, although not necessarily a knowl- edge of its entire contents, must be an explicit notice of its existence. It must be notice that a deed convejung the property has been executed, and that the title has passed out of the grantor. Wallace v. Craps, 3 Htrobh. (S. C.) 266. It is sufticient that he had information of the sub- stance of the transaction, or such as would lead him to actual knowl- edge. Harper v. Eeno, 1 Freem. Ch. 323. Siuih information must be sufRcieutly definite to enable him to ascertain whether it be authentic. Massie v. Greenhow, 2 Patt. & H. (Va.) 255. See Spofford v. AVeston, 29 Me. 140 ; Nute v. Nute, 41 N. H. 60; Parker v. Kane, 4 Wis. 1 . ■» Hart V. Farmers, etc. Bank. 33 Vt. 252; Mills v. Smith. 8 AVall. 27; Barrett v. Barrett. 31 Tex. 344. Such notice as men usually act upon in the ordinary affairs of life. Curtis v. Mundy, 3 Mete. 405. 5 Fair v. Stevenot, 29 Cal. 490; Lestrade v. Barth, 19 Cal. 676. 25(> CONVEYANCING. CH . IV. The following instances may serve to illustrate some of these principles. In California, where a deed was tiled in the recorder's office for record, but before it was recorded it was withdrawn by the grantee, and after sometime returned for record, it was held, that during the time the deed was away from the office, the law making the filing of a deed for record notice to subsequent })urchasers, was suspended; but that a statement of the fact of the filing and withdrawal of the deed was sufficient to put u[)on inquiry a third party who proposed to jiurchase the property.^ Antl where a deed was filed for record misdescribing the premises — the numbers of the township and range having been transposed — but there being in the county no premises corresj)onding to the description in the deed, it was held suflicient notice to i)ut a i)urchaser upon inquiry and charge him with knowl- edge that the premises had been conveyed.^ So a ])urchaser was held to be affected with notice of a prior unrecorded deed, l»y having heard the grantee in such deed say that he had the same.-^ And the notice was held effectual where the information was derived from a person interested, and from a source likely to give credit, although not the party or his agent.' liut where there was nothing to put the pur- chaser upon iiHiuiry further than a remark by a third party, thatthere was "'some trouble about the title," this was held no sufficient notice of the existing ecjuities.-'* Even a gen- ' I.:i\vt(in V. (Joidou. :57 < III. 2(t-J. tint see Ilickiiian v. Perrin. C Coldw. (Teim. ) 1:5."), where it was held, under cireunistaiiees substantially simi- lar, tliat the noting: of a deed which is withdrawn before the registra- tion, by the party taking a beneficial interest under it, gives it no priorily. The register is required bj' law. to spread upon his books, deeds, in the order, in w liich they are filed, and the noting in his books is the evidence of the filing; l>ut if the deed is withdrawn before registration, by the i)arty or his agent, its priority is gone, and il only takes effect from tb<- date of the return of the deed into the olliee of the register. 2 Partridge V. Smith, 2 Biss. is:^. And see Muldrosv v. Eobison, 58 Mo. :'.:'. 1. 2 iMense v. MeLean, 1:5 :Mo. 2'JS. And see HeAvitt v. Clark. 01 111. OOo, < MuUikeu v. Graham, 72 I'a. St. -484; Butcher v. Yocum, (il Id. 1G8. But the vague report of a stranger will not have tlie effect of notice. Kerns v. Swope, 2 Watts, 75; Jaqiies v. Weeks, 7 Watts, 2G1. ■ Pittinan v. Solli-v, M 111. l.")5. Generally, such notice, to be binding. ART, II. REGISTRATION OF DEEDS. 257 eral rumoi- of a conveyance may not be sufficient to put a party upon inquiry .^ Knowledge on the part of a grantee in a subsequent deed, that there are upon record convey- ances of the land, the title to which is in dispute, made by parties who cannot show by the record any title in them- selves derived from the former actual owner, no conveyance from him appearing therein, is not such actual notice of a prior unregistered deed as will defeat his title. ^ And in Maine, where the declarations of the subsequent purchaser showed both his disbelief that any prior deed of the prem- ises had been given by his grantor, and his knowledge of the claim of the parties professing to hold under such a deed, itAvas held that these facts did not warrant the con- clusion that he had actual notice of the existence of the deed.^ Where the owner of the land, upon giving a mort- gage of it, exhibited to the mortgagee a prior mortgage deed, duly executed and delivered, which had been returned to the grantor for the purpose of being acknowledged by him, and the grantor declared at the time he exhibited the same that it had never been delivered, and there was no other evidence of notice, it was held that the mortg-agee who first recorded his deed had the better title.* But a purchaser, with actual knowledge of a prior, adverse but unattested conveyance, which his counsel erroneously told him was void, was held to take subject to the rights of the grantee therein named .^ § 282. Notice to the Agent is Notice to the Principal. must proceed from some person interested in the property. Rogers y. Hoskins, 14 Ga. 166 ; Lament v. Stimson, 5 Wis. 443 ; Peebles v. Reading, 8 S. & R. 496. But see Mullikenv. Graham, 72 Pa. St. 484; Curtis v Mundy, 3 Mete. 407. 1 Maul V. Rider, 59 Pa. St. 167; James v. Drake, 3 Sneed (Tenn.), 340; Jolland V. Stainbridge, 3 Ves. 478; Jaques v. Weeks, 7 Watts (Pa.), 267; Wilson V. McCullough, 11 Pa. St. 440. And see Butler v. Stevens, 26 Me. 484; Doyle v. Teas, 4 Scam. (111.) 202. 2 Spofford V. Weston, 29 Me. 140. 3 Ibid. * Rogers v. Jones, 8 oST. H. 264, 5 Gilbert v. Jess, 31 Wis. 110. (17) 258 CONVEYANCING. CH. IV. — Notice of a prior unrcgisterecl deed to an agent or attor- ney employed to effect the purchase, is equivalent to notice to the principal. 1 And actual notice to one member of a corporation was held to be notice to all.- But notice to a husband of a ])rior unregistered mortgage, at the time of receiving a conve3'ance of lands to himself and his wife, was held not to operate as notice to the wife, so as to give the mortgage a preference in respect to her title, she hav- ing paid the consideration out of her separate estate.^ § 283. As to the Degree of Proof Required to Es- tablish Actual Notice. — In some of the States it is a con- struction of equity as well as law, that the taking of a deed, with knowledge of a prior unrecorded conveyance to an- other person, is a fraud upon him; and that the ])arty re- lying upon an unregistered deed against a subsequent pur- chaser, must prove that the latter had actual notice of such deed.* And some of the cases seem to go to the extent that such notice must be proved beyond a reasonable doubt.-'' But in other States the jury has a right to infer such knowl- edge from any facts that would naturally suggest it.^ In Missouri, the courts hold that the "actual notice," required by the statute, is used in contradistinction to the construct- 1 Gilbert v. Jess, 31 Wis. 110; Polk v. Cosgrove, 4 Biss. 437; Gooden- ough V. Warren, 5 SaAvyer, 494; Fuller v. Bennett, 2 Hare, 304; Hovey V. Blancliard, 13 N. H. 145; Williamson v. Brown, 15 N. Y. 3.59; Bank of U. S. V. Davis, 2 Hill (X. Y.), 451. Constant v. University of Koch- ester (N. Y.), 28 Cent. L. J. 274. Such notice, to bind tlie principal, must be brought home to the agent while engaged in the business and negotiation of the principal, and when it would bo a brcacli of trust in the former not to communicate the knowledge to the latter, i'ringle v. Dunn, 37 Wis. 449; ]\Iay v. Borel, 12 Cal. 91 ; Fry v. Sheehee, 55 Ga. 208; Haywood v. Shaw, IG How. (N. Y.) Pr. 119. 2 Watson V. Wells, 5 Conn. 4G8. The rule does not apply, however, when the member deals with the company as a third party on his own behalf. La Farge Fire Ins. Co. v. Bell, 22 Barb. (N. Y.; 54, 61. 3 Sponablev. Snyder, 7 Hill (X. Y.), 427. •* Bush V. Golden. 17 Conn. .594; Pomroy v. Stevens, 11 Mete. 244; Spof- ford V. Weston, 29 3Ic. 140: Butler v. Stevens, 2U Me. 484; Stone v. Bart- lett, 4G Me. 438. 5 Rogers v. Wiley, 14 111. tJ5; Mc:Mechan v. Grilling, 3 Pick. 149. ^Maupin v. Emmons. 47 ]\Io. 304; Smith v. Lambeth, 15 La. Ann. 566. ART. II. KECIISTKATIOX OF DEEDS. 259 ive notice given by a record ; that it does not mean that there must necessarily be direct and positive evidence that the subsequent })urchaser actually knew of -the existence of the deed; but that this may be proved, like any other fact, by any proper evidence, direct or circumstantial, tend- ing to prove such knowledge, or any fact or circumstance that would [)ut a man of ordinary circumspection upon inquiry.^ Notice is actual where the purchaser knows of the existence of the adverse claim or title, or is conscious of having the means of knowing, although he may not use them.- And if a purchaser knew that his grantor had made a prior conveyance, it will not avail him anything that he did not know what kind of a deed he had made.^ So where one, when he purchases, knows that his grantor has no title, he cannot set up his deed against the real owner, al- though he did not know who he was when he took his deed.* § 284. All Unrecorded Deed is Void, wlien. — The stat- utes of all the States render deeds, that have not been re- corded within the time prescribed by law, void, as against subsequent 6on« fide purchasers for valuable consideration, without notice. And it is presumed, that in the absence of any statute upon the subject, the negligence of a _grantee in not recording his deed Avhen required by law, would estop him from setting it up against a purchaser.^ But to prevail against a prior purchaser, even where the second had no notice of the first conveyance, he must have paid a good and valuable consideration.'' The paj'ment of the consideration raises the equity that invalidates the first ^Maupin v. Emmons, 47 Mo. 304. -Speck V. Riggiu, 40 Mo. 405. s^Gallaud v. Jackman, 26 Cal. 87. * Fitzhugh V. Barnard, 12 Mich. 110. ■^ 1 Prest. Abst., Tit. 24; Preston v. Xasli, 7(> Va. 1. 6 Paul V. Fulton, 25 Mo. 15G; Aubucliuu v. Bender, 44 Mo. 5()0: Xolen V. Gwyu, 16 Ala. 725; Wormlej' v. Wormley, S Wheat. 449; Wallace v. Moody, 26 Cal. 387; Shotwell v. Harrison, 22 Mich. 410; Frey v. Clif- ford, 44 Cal. 335; Coon v. Browning, 10 Kan. 85; Hutchinson v. Hart- man, 15 Kan. 133, and it is incumbent on him to prove payment; the recitals in his deed are not sufficient. 260 CONVEYANCING. CH. IV. deed.^ Therefore, to accjuire precedence as a hona Jhh {)ur- chaser, he must not only not have notice of the i)rior title when he purchases, but when he })ays the consideration also. 2 It seems that in several of the States, a subseciuciit hona fide purchaser, in order to be entitled to the protection of the statute, must not only have purchased without notice, and upon a valuable consideration, but must also have re- corded his deed before that of a ))rior purchaser.^ § 285. Of Piircliasers by Quitclaim I)j)Osition, 1 Paul V. Fulton, 25 Mo. 15G; Aubuchon v. Bender, 44 Mo. 5G0; Mau- pin V. Emmons, 47 Mo. 304. As against volunteer.*, all the grantor's title passes to the grantee, though not recorded. Snodgrass v. Ricketts, 13 Cal. 359. A voluntary conveyance, though not recorded, is valid against any subsequent voluntary conveyance of the same land by the grantor. Way v. Lyon, 3 Blackf. 7(5. - Blanchard v. Tyler, 12 Mich. 33'J; Harper v. Keno, 1 Freeiu. Ch. 323; Bennett v. Titherington, 6 Bush, 192; Paul v. Fulton, 25 Mo. 156. And a purchaser must not only have paid the consideration, but have ob- tained the conveyance before notice. Blight v. Banks, (i T. B. Mon. 192. 3 AVisconsin Jiev. Stats. 1878, § 2241; Michigan Comp. Laws, 1871, § 4231 ; Kodgers v. Burchard, 34 Tex. 441 ; Fallass v. Pierce, 30 Wis. 443. Otherwise, under the statute of Illinois, Rev. Stat. 111., 1877, chap. 30, § 3. And see (Tulway v. Malchow, 7 Xeb. 285; yicFadden v. AVorthing- ton, 45 111. 3(!2. In a conveyance the absolute title rests with the grantor and his heirs, in abeyance, to vest irrevocably upon the record of the deed; audit will vest in the lirst grantee in condition to receive the grant, who shall tirst place his deed upon record. Youngl)lood v. Vas- tine. 4(5 :Mo. 239. •* Marshall v. Roberts, 18 Minn. 405 ; Rodgers v. Burchard, 34 Texas, 441. But this rule has been changed by statute in Minnesota. Strong V. Lynn, 37 N. AV. Rep. 448. And see De Vaux v. Fosbeuder, 57 3Iich. 579. * Pittingill V. Devin, 35 Iowa, 354; Doe v. Reed, 5 111. 117; Graff v. Middletou. 43 Cal. 341 ; Fash v. Blake, .38 111. 3G3 ; Cutler v. .Fames, G4 Wis. 173; Chapman v. Simms, 53 AA'is. 154; Fox v. Hall, 74 Mo. 315; ART. II. REGISTRATION OF DEEDS. 261 it is argued that the grantor only conveys or undertakes to convey what interest he lias in the premises, and that this is presumptive notice to a purchaser of all existing rights and equities in others. But on the other hand it may be said, that a quitclaim deed is the usual form used for a convey- ance without covenants, and as the covenants in a deed are no part of the conveyance, no reason is perceived why a purchaser should not be allowed to deal with one who pre- fers not to enter into any covenants, on the same terms as with one who does covenant. An owner of real estate may have abundant reasons for not wishing to assume obliga- tions in respect to it, although he may not be aware of any defect in his title. Whatever may be the form of the con- veyance, he cannot convey any more title than he has in the premises. The principle by which a subsequent purchaser, without notice of a prior conveyance by his grantor, ac- quires title is, that the prior purchaser is estopped from asserting a title of which he has given no notice. We have heretofore expressed the opinion that, upon principle, it is entirely possible for a purchaser by quitclaim deed to be a bona fide purchaser, for valuable consideration, without notice.^ § 286. Continued. — As to the Rights of a Purchaser from an Heir. — The same question has been raised a::< be- tween a bona fide purchaser from an heir and one holding under a former unregistered deed from the ancestor. Some courts, holding the deed of the ancestor effectual to divest him of the title, maintain that he had no estate at his de- cease which could descend to his heir; and that the heir Willingham v. Hardin, 75 Mo. 429; Brown v. Bamser Coal Co., 97 111. 254; Rowe v. Beckett, 30 Ind. 154; Groff v. Middleton, 43 Cal. 341. But see Oliver v. Piatt, 3 Howe, 333; May v. Leclaire,ll Wall. 232; Springer V. Bartle, 4G Iowa, 688; Stoffel v. Schroder, 62 Mo. 147; Ridgeway v. Holliday, 59 Mo. 444; Stivers v. Home, 62 Mo. 473, where it is held that where one takes title to land, by quitclaim, which in the hands of the grantor, is subject to equities to which the recording act does not ap- ply, the grantee will take the land subject to such equity. ^ Ante, § 59. For a more ample and explicit statement of the reasons upon which this opnion is founded, see 12 Cent. L. J. 127, et seq. To the same effect see Chapman v. Sims, 53 Miss. 154. 262 CONVEYANCING. CH. IV. never Imviiiir any estate in the land, a deed from liini could not take effect to defeat the title of the rjrantee of his an- cestor.^ l^ut other courts, in the construction of the regis- try acts, hold that a purchaser from the heir, whose deed is recorded, will take precedence of the grantee of the an- cestor whose deed is not recorded, on the ground that, un- der the statute, an unrecorded deed is void as to all persons except the parties to it, their heirs, and persons having ac- tual notice of such deed ;2 and that bona fide purchasers for full consideration, without notice of fraud, are to be pro- tected wdiile relying upon the title as shown by the records.* " This construction of the statute seems to be more in ac- cordance with the object and design to be accomplished by the law, and is within the reason which gave rise to its enact- ment. It is the object of recording acts to make patent the title to real estate, that purchasers may know what title they 'are acquiring. Where a deed is not recorded, the title, apparently, is still in the grantor, and the law authorizes l)urchasers, who are ignorant of the conveyance, to deal with him as the real owner. In case of his death the heir becomes the apparent owner of the legal title, and it is equally important and equally as just that the public may iKogers v. Buvchard, 34 Tex. 441; Hill v. Meeker, 24 Conn. 211; Halls V. Gr.ahani, 4 T. B. Mon. 120; Hancock v. Beverlj^ 6 B. Mon. 531 ; Harlan v. Seaton, 18 B. Mon. 312. The court, in the case last cited, say- that if it were a new question "and had not been heretofore decided," they should be strongly inclined to give to the statute a liberal construc- tion. They add, however, that as the previous decisions had become settled rules of property, it is better that the law should remain perma- nent, " although settled originally upon doubtful principles." 2 Powers V. :>rcFerran, 2 Serg. & K. 4n; Vaughan v. Greer, 38 Tex. 530; Earle v. Fiske, 103 Mass. 401. The court in :Massachusetts say : - It ap- pears to us that the plain meaning of our system of registration is, that a purchaser of land has a right to rely upon the information furnished him by the registry of deeds; and in tlic absence of notice to the con- trary, he is justitied in taking that information as true, and acting upon it accordingly." 3 Kennedy v. Northup, 15 HI. 148; Youngblood v. Vastine, 46 Mo. 239; Stone v. Bartlctt, 4G Me. 438; McCulloch v. Eudaly, 3 Yerg. (Tenn.) 34G. ART. II. REGISTRATION OF DEEDS. 263 be allowed to deal with him as with the oiiginal s^'J^intor if iving. ^ § 287. Con till lied. — Ol" Purchasers at Sheriff's Sale. — Purchasers at sheriff's sale, as a general rule, are entitled to the benefit of the statute. In a few instances, the doctrine that the grantee under a transfer, which passes only the rigfht title and interest of the execution debtor, takes the estate subject to all the equities with which it was bound in his hands, has been extended to sales under execution.^ But the prevailing rule is, that the protection of a pur- chaser for a valuable consideration without notice, at sher- iff's sale, is the same as that of any other purchaser,^ and that the purchase dates from the sale,^ In some of the States, a judgment or attaching creditor is not protected against an unrecorded deed.'' In such States, if the deed 1 Kennedy V. JSTorthup, 15 111. 148. Purchasers are required to spread upon the record the evidence of their ownership, and if others suffer from their neglect, the law will not recognize their ownership. Young- hlood V. Vastine, 46 Mo. 2:^9. 2 Kelly V. Mills, 41 Miss. 267, overruling Kilpatrick v. Kilpatrick, 23 Miss. 124. The evidence of a mere equitable title, need not be recorded to be valid against creditors and subsequent purchasers, as a sale on ex- ecution passes only the rights of the judgment debtor. Morgan v. Mor- gan, 3 Stew. (Ala.) 383. 3 Euynan v. McClellau, 24 Ind. 165; Evans v. McGlasson, IS Iowa, 150; Fords V. Vance, 17 Iowa, 94; Saver}"- v. Browning, IS Iowa, 246; Waldo V. Russell, 5 Mo. 3S7; Davis v. Ownsby, 14 Mo. 170; Draper v. Bryson, 26 Mo. 108; Stilwell v. iMcDonald, 39 Mo. 282; Potter v. McDowell, 43 Mo. 93; Den v. Eichmau. 13 N. J. L. 43; Garwood v. Garwood, 9 N. J. L. 193; Scribner v. Lockwood, 9 Ohio, 184; Jackson v. Post, 15 Wend. 588; McMtt v. Turner, 16 Wall. 352. That an execu- tion creditor has notice of an unrecorded mortgage, does not affect a purchaser at sheriff's sale, under the execution of the mortgaged land, such purchaser being without notice. Miles v. King, 5 S. C. 146. •* Ruynan v. McClellan, 24 Ind. 165; Davis v. Owusby, 14 Mo. 170. ^ Sappingtou V. Oeschli, 49 Mo. 244; Greenleaf v. Edes, 2 Minn. 264; Kelly V. Mills, 41 Miss. 267; Bell v. Evans, 10 Iowa, 353; Evans v. McGlasson, 18 Iowa, 150; Boze v. Arper, 6 Minn. 220. Actual notice before judgment has the same effect. Churchill v. Morse, 23 Iowa, 229; Hoy V. Allen, 27 Iowa, 208; Vreeland v. Claflin, 24 X. J. Eq. 313. And see Davie V. McDaniel, 47 Ga. 195; Lamberton v. Merchants' Bank, 24 Minn. 281. 264 CONVEYANCING. CH. IV. be recorded before sale under the execution, it is valid, as aijainst the execution purchaser.^ But in other States, the statutes have been construed to extend to the protection of the lien of a judgment or an attachment, as against such prior unrecorded deed.^ The mortf aiice in a mortgage given to secure a pre-existing debt,^ and purchasers at mortgage sales, have also been held to be purchasers for a valuable consideration, and as such pro- tected under the statute, against prior unrecorded deeds, of which they had no notice^ § 288. Equity Extinj-uislied by a Purchase Avitliout Notice. — One who purchases without notice, from a subse- quent purchaser with notice of a prior unrecorded deed, is not affected by it, and will lake a title cured of the fraud."^ So a purchaser without notice, may convey a good title to 1 Schroeder v. Ouruey, 7:5 N. Y. -130. Even if tbe latter is without! proper ;icknowleclfj:meut. Iloy v. Allen, 27 Iowa, -208. 2 Pollard V. Cocke, 19 Ala. 188; McCoy v. Rhodes, 11 How. 131; II V. Paul, 8 Miss. 479; Reichert v. McClure, 23 111. 516; Massey v. West- cott, 40 111. 160; McFadden v. Worthiugton, 4.") 111. 362; Vreelaud v. Clallin, 24N. J. E(i. 313; Humphreys v. Merrill, 52 Miss. 92. Actual notice after judj?nient is obtained, does not defeat the judgment creditor. Loughridge v. Bowland, 52 Miss. .546. A deed executed before a judg- ment is recovered against the grantor, but which is not recorded until after tbe judgment is docketed, is good as against a sheriff's deed, made on the judgment, if recorded before tbe record of the sheriff's deed. Wilcoxson V. Miller, 49 Cal. 194. In Minnesota, an attachment or judg- ment does not take precedence of a prior unrecorded conveyance of real estate, if the attachment or judgment creditor has notice of such unre- corded conveyance at the time of levying his attachment, or docketing his judgment. Lamberton v. Merchants' Nat. Bank, 24 Minn. 281. ■ Frey v. Clifford, 44 Cal. 335. •t Oiiio Eife Ins. Co. v. Ledyard, 8 Ala. 860. The word "subsequent purchaser," means a purch.aser of the estate embraced in the unrecorded conveyance, or some interest therein. Campbell v. Yedder, 1 Abb. (N. Y.) App. Dec. 295. « Mallory v. Stodder, 6 Ala. 801 ; Fenno v. Sayre, 3 Ala. 458; Truluck V. Peoples, 3 Ga. 446; Lee v. Cato, 27 Ga. 037; Pierce v. Faunce,47Me. ,507; Brackett V. Riddon, 54Me. 426; Connecticut v. Bradish, 14 Mass. 296; Trull v. Bigelow, 16 Mass. 406; Coffin v. Ray, 1 Mete. 212; Cushing V. Kurd, 4 Pick. 252; .lackson v. Walsh, U.Iohns. 407; Wood v. Chapin, 13 N. Y. 509; Morrison v. Shattuck, 1 N. Chip. (Vt.) 34; Lacy v. Wil- son, 4 Munf. (Ya.) 313. ART. II. REGISTRATION OF DEEDS. 265 one with notice. After an interest in real estate has passed to an innocent purchaser and is discharojcd of its latent <3quities, it is thenceforth unimportant whether subsequent grantees or assignees had, or had not notice of the prior equitable claims/ or that the intermediate grantees paid nothing.- But a purchaser for a valuable consideration, from one having knowledge of a prior deed, cannot hold the land, if such prior deed be recorded before his own pur- chase, although the deed to his grantor be first recorded.^ § 289. Effect of a Mistake in the Record — Destruction of Record. — Some courts in carrying out the idea, that the time when the record of a deed takes effect as notice has reference to the date of its being filed or deposited with the proper oflicer to be recorded,* hold, that after a deed is filed, it is, in contemplation of law, recorded; that the grantee in it has done all the law requires, and his rights will be protected, even though the recorder actually records only a portion of it, or fails to record it at all.^ But other €Ourts hold, that the record of adeed, filed in the recorder's office of a county, imparts notice only of what is spread upon the record; and if a mistake is made in copying the 1 Pierce v. Faunce, 47 Me. 507; Trull v. Bigelow, 16 Mass. 406; Bell v. Twilight, 18 N. H. 159; Shotwell v. Harrison, 22 Mich. 410. 2 Fallass v. Pierce, 30 Wis. 443. 3 Van Rensselaer v. Clark, 17 Wend. 25. See Adams v. Cuddy, 13 Pick. 404; Flynt v. Arnold, 2 Mete. 619, 627; Mahoney v. Middleton, 41 €al. 41; Shotwell v. Harrison, 22 Mich. 410. < Nichols V. Reynolds, 1 R. I. 30; Dubose v. Young, 10 Ala. 365; Davis V. Ownsby, 14 Mo. 175; Kessler v. State, 24 Ind. 315; McCabe v. Orey, 20 Cal. 509; Gill v. Fauntleroy, 8 B. Mon. 177; Hiue v. Robbins, 8 Conn. 347; Horsley v. Garth, 2 Gratt. 471. 5Kiser v. Heuston, 38 111. 252; Flowers v. Wilkes, 1 Swan. 408 Throckmorton V. Price, 28 Tex. 605; Merrick v. Wallace, 19 111. 486 Nichols V. Reynolds, 1 R. I. 30; Beverly v. Ellis, 1 Rand. (Va.) 102 Riggs V. Boylan, 4 Biss. 445; Oats v. Wall, 28 Ark. 244; Bank of Ken- tucky v. Haggin, 1 A. K. Marsh. 306; Polk v. Cosgrove, 4 Biss. 437; Lewis V. Hinman (Conn.), 13 Atl. Rep. 143. The record of a deed abso- lute in form but a mortgage in fact and recorded in the book of deeds, imparts notice of the grantee's interest as effectually as though it were recorded in the book of mortgages. Haseltine v. Espey, 13 Oreg. 301. 26(3 CONVEYANCING. CH. IV. deed, the party filini; the same must suffer, and not an in- nocent purchaser who has been misled !)\' tiic mistake.^ The Supreme Court of Michioan sav : " The recordinfj laws cannot be made by equitable construction, to embrace eases not within tiiem, or to give constructive notice of things the records do not show ; and where a mistake is made in recording, a subsequent purchaser has a right, in the absence of actual notice of the mistake, to rely on the records as showing the exact facts. "^ The obligation of giving the notice required by the stat- ute, rests upon the party holding the title, and if his duty is imperfectly performed, he, and not an innocent purchaser,, must suffer the consequences.^ But after a deed has been duly recorded, the partial or total destruction of the record book containing it does not affect the record as notice.^ § 290. Seal of Aokuowledgiiig- Oflicer need not be Recortlcd. — The impression of the seal of the officer wha takes tlie acknowledgment of a deed, need not be recorded, nor is it essential that the record should contain any locus^ sigilli or scroll. The statement in the body of the certifi- cate, that the seal is attached, is sufficient to raise the pre- sumption that such Avas the fact.^ And in Missouri, the 1 Terrell v. Andrew County, 44 Mo. 309; Miller v. Bradford, 12 Towa, 14; Lally V. lloUaud, 1 Swan (Tenu.), 39G; Sanger v. Craigue, 10 Vt. ho')\ Bcekman v. Frost, IS Johns. 544; Frost v. Beeknian, 1 Johns. Ch. 299; Jennings V.Wood, 20 Ohio, 261; Willet v. Overton, 2 Root (Conn.),. 338; Brydon v. Campbell, 40 Md. 331 ; Simon v. Kaliske, 1 Sweeny (X. Y.), 304; Payne v. Pavey, 29 La. Ann. 110; Potter v. Dooley, 55 A^t. 512. 2 Barnard v. Campaii, 29 Mich. 1G2. 3 Terrell v. Andrew County, 44 Mo. 309. •* Myers v. Buchanan, 40 Miss. 397; Steele v. Boone, 75 111. 457; Gam- mon v. Hodges, 73 111. 140; Heaton v. Prather, S4 111. 330; Curyea v. Berry, /d. 600; Anneutroutv. Gibbons, 30 Gratt. 632; Fiteh v. Boyer,51 ■ Tex. 330. And see Evans v. Templeton (Tex.) , S. W. Rep. 843. 5 Geary v. Kansas City, 61 Mo. 378; Griflin v. Shellicld, 38 Miss. 359; Addis V. Graham, 88 Mo. 197; German Amer. Bank v. White (Minn.), S8N.W. Rep. 361. ART. II. REGISTRATION OF DEEDS. 267 registration of a deed having no seal or scroll attached by the maker, nevertheless imparts notice. ^ § 291. Whether the Record of a Deed is Notice until Indexed. — In Iowa, Pennsylvania and Vermont, it has been held that a deed not properly indexed, as required by statute, is not constructive notice to subsequent puichasers.^ But in most of the States it is held that a deed properly filed and copied on the record, is recorded within the meaning of the law, and imparts notice to subsequent purchasers, not- withstanding the failure of the ofKcer to index it. "The index is no part of the record."^ The court of Georgia, in commenting upon the subject, remarks that, "the index is the means furnished by the public to its citizens, for an eas}^ reference to the books of the record. It is not for the benefit of the holder of the deed, but for the conveni- ence of those who desire to examine the record. The ease or difficulty of finding what is on record is not a matter in which the owner of the deed is concerned."* The i)arty who suffers through the neglect of the clerk to properly in- dex a conveyance, must look to the clerk and his sureties for redress.^ § 292. Corrections and Alterations of the Record. — A recrister who has made an incorrect registration of a deed. ^ McClurg V. Phillips, 57 Mo. 214. And see Smith v. Dall, 13 Cal. 510. -Speer T. Evans, 47 Pa. St. 144; Barney v. McCart}', 15 Iowa, 522; Whaley V. Small, 25 Iowa, 188; Sawyer v. Adams, 8 Yt. 172. But see Stockwell V. McHenry, 107 Pa. St. 237. If a recorder keeps a general index, and omits to index a deed in it, and thereby overlooks a deed regularly recorded and indexed in the proper book, his certificate ren- ders him liable, notwithstanding the Pennsylvania act of 1827 only re- quires him to keep an index for each book. The duty of search is that of the oiHcer, and not of the parties. Schell v. Stein, 76 Pa. St. 398. ^Bishop V.Schneider, 46 Mo. 472; Chatham v. Bradford, 50 Ga. 327; Musgrove v. Bonser, 5 0reg. 313; Board, etc. v. Babcock, Id. 472; Bed- ford V. Tapper, 30 Hun, 174; Manegoldv. Barlow, 61 Miss. 593; Amer. Emigrant Co. v. Call, 22 Fed. Rep. 765; Lee v. Birmingham, 30 Kan. 312; Perkins v. Story (Xeb.),36 X. W. Eep. 292. ■* Chatham v. Bradford, 50 Ga. 327. 5 Musgrove V. Bonser, 5 Oreg. 313; Sawyer v. Adams, 8 Vt. 172; Board, etc. V. Babcock, 5 Oreg. 472. 2G8 CONVEYANCING. CH. IV. may correct it.^ But a portion omitted by mistake, and in- terlined after a subsequent purchase in good faith, will not impart notice to such purchaser. - The question, whether the second recording of a deed, which has once been incorrectly spread upon the record, is valid, unless provided for b}' statute, does not seem to have arisen. Until this mode of correcting a mistake in the record is sanctioned, either by the legislature or higher courts, the execution and registration of a new deed would seem to be the safer plan. In case of the second registra- tion of the same deed, the question might arise as to which record imparted the notice, or which shall be presumed to be correct ; and whether one who has made search and found the first record would be bound to continue his search until he finds the second, or whether being misled by the mistake, he would not be entitled to pi'otection. The court cannot require a recorder who has correctly copied a deed upon the record, as made and delivered, to alter the record to correspond to an alteration adjudijcd in an action to reform the deed. The proper course is to ad- judge that a new deed be executed by the grantor, or by a commissioner, and this may be recorded and referred to, in the margin of the record of the old one.^ 1 Baldwin v. Marshall, 2 Humph. (Tenn.) IIG. A deed is not vitiated by the omission of the name of one of the grantors in recording it. Gar- rard V. Davis, 53 Mo. 322. 2 Chamberlain v. Bell, 7 Cal. 292. 3 Toops V. Snj'der, 47 Ind. 91. ART. I. DIFFERENT SPECIES OF LEASES. 269 TITLE II.— Leases. Chapter V. Of Leases iu General. VI. The Formal Parts of a Lease. VII. The Execution, Assignment and Determination of Leases. CHAPTER v.— Of Leases in General. Article I. Of the Different Species of Leases. II. Whether a Lease or an Agreement for a Lease. III. Of the Parties to a Lease. ARTICLE I. OF THE DIFFERENT SPECIES OF LEASES. SECTION. 293. Definition of lease. 294. Modes of creating tenancies at common law. 295. Of the different kinds of leases. 296. Of an estate for life. 297. Of a term of years. § 293. Deflnition of Leases. — A lease is a contract for the possession and profits of land and tenements, whereby the relation of landlord and teniint is created between the parties thereto. ^ This relation may also arise by implica- 1 Taylor's Landl. & Ten., § 14. In nearly all the States leases for term exceeding one year must be by deed. Stimson's Amer. Stat., § 1471. 270 CONVEYANCING. CH. V. tit 111 or l)y the act or operation of law. But our purpose is to speak only of tenancies created by act of the parties, and throuiili the medium of written leases. § 21t 1. Modes of Creating Tenancios at Common Law. — There were three modes of creating tenancies by act of the parties, at common law, namely: by deed, by writing not under seal, and l)y parol.' The period for which parol leases are binding, is limited in all the States to a compara- tively short time, and as they do not properly come within the scope of the present work, do not demand more than a passing notice. It may be observed, before proceeding, that where leases are entered into by deed, the same gen- eral principles apply in respect to the materials of which thev may be composed, alterations and the like, as in case of i)urchase deeds, under which head these subjects have already been discussed. § 295. Other Different KincLs of Leases. — Leases are further distinguished as conveyances for life, for years, at will- and by sufferance.^ The two latter seldom arise except by implication, and since, in either case, the responsibilities and privileges of the tenant are very limited, do not, as we have observed, call for any notice here. The chief distinc- tions between leases for life and leases for years arise from the fact that the former confer a freehold estate, wiiile the latter, as will be more fully explained, convey a mere chat- tel interest.* § 29G. An Estate for Life cannot, at common law, be made to commence in futuro. Nor can it in any case be created by parol. And being for an uncertain period, the tenant is entitled to emblements, that is, such annual pro- ducts of the land as are the result of his own care and labor, although they do not mature during the existence of his estate. Another incident of a life estate is the right to 1 Smith, Landl. & Ten. GO. 2 Tenancy by will not assignable. McLeren v. Benton, 7:5 Cal. 329. •" Tenant at sufferance has merely naked possession. McLeren v. Ben- ton, 73 Cal. 320. 4 Infra, § 2!>7. ART. I. DIFFERENT SPECIES OF LEASES. 271 take reasonable estovers, which is the right or privilege a tenant has of furnishing himself with such wood from the demised premises as may be sufficient or necessary for his fuel, fences and agricultural operations. An estate for life may be cither for the life of the tenant, ■or for the life or lives of one or more other persons ; and may be created either by act of law or by act of the par- tietj. The former are called legal, and the latter conven- tional life estates. Amono; the leo;al life estates are dower and curtesy, A conventional life estate ma}^ be created either by express limitation, or by a grant in general terms. At common law a grant to a man, or to him and his assigns, without any limitation in point of time, will be considered as an estate for life, and will continue for the life of the grantee only. But this rule has been changed by statute in many of the States.^ A tenant for life may make un- der leases which will pass all the rights and privileges inci- dent to the original estate, subject to be defeated by the death of the person upon whose life the first estate de- pends. It may be further remarked that a tenant for life is bound to pay all taxes,- and to keep down the interest on incumbrances, and other annual charges upon the land, out of the ])rofits of the estate, though he is not chargeable with the incumbrance itself.-^ § 297. A Lease for Years is one which is to terminate in a fixed and definite period of time. It is called a (erm, because its duration is limited and determined; and this word is used to express not only the duration of the interest of the lessee, but also the estate which he has. A term ma}' be for one or more years, and even though the number of years should exceed the ordinary limit of human life, the lessee will be treated as a tenant for years ,^ "notwith- standing it should be for a thousand years. "^ The prefer- 1 Ante, § 85. 2 Patrick v. Sherw©od, 4 Blatchf.112. 3 Prettj'uiau v. Walstou, 34 111. 175; Mosely v. Marshall, 27 Barb. 42. 4 Co. Litt. 4G, a. 5 Co. Litt. 4G, a. 272 CONVEYANCIN< . CH. V. ence given by the common law to the tenant of a fieehohl above a tenant for years depends upon feudal i)rinciples, which have no application to the condition of society under a rei)ul)lican form of (rovernmcMit. Consequently, in many of the 8tatcslhe coinnion-law doclrine, in respect to estates less than freehold, lias been luoie or less nioditied by stat- ute, by makino; the interest of a lessee of a term of a cer- tain luunber of years (in some a greater, in others a less nund)er), an estate in land, and as such subject to lien of a judgment, liable to taxation, and to be sold under execu- tion the same as real estate. ^ But, with the exceptions cre- ated by statute, estates for years still have the properties of chattel interests, however long the term, such as merg- ing in the freehold, descending to personal representatives instead of heirs, not being subject to dower, passing by will, being liable to be sold as personal property, and the like.- We cannot undertake to review here the legislation of the several States ui)()n the subject, but would suggest to readers who may have occasion to examine titles to leasehold estates, the importance of familiarizing them- selves with the laws of their respective States in this par- ticular.'^ A term of years may be created to take effect at a future date,* provided the period does not reach that which consti- tutes in law a perpetuity ; that is such a limitation as would render the property inalienable beyond the period allowed by law. The tenant of a term of years, the duration of which depends upon no contingency, is not entitled to em- blements, as such ;'^ but by local custom he may be allowed to rea[) a crop which he has sown, after his lease has ex- pired. The parties to a lease may, of course, regulate 1 Com. Dig. I^audl. it Teu., .">, 2 Ex parte Gay, 5 Mass. 419; Brewster v. Hill, 1 N. H. 350; 4 Kent's Com. 94. 3 See Stirnson's Amer. Stat., §§ 2000-2100. * Beear v. Flues. 04 N. Y. r)18; Williams v. Downing, 18 Pa. St. 60. 5 Whit marsh v. Cutting, 10 Johns. 3G0; Harris v. Carson, 7 Leigh (Va.),G:$2. ART. II. A LEASE OR AN AGREEMENT. 273 such matters by express stipulation, but in the absence of such, every demise is open to explanation by reference to the general usage of the country, of which every person is supposed to be cognizant when making contracts. ^ A tenant for years has the same right to reasonable estovers as a tenant for life, unless restrained by some provision contained in his lease. ^ A terra of years may, in general, be created by any one having an estate greater than the term itself. Not only can a tenant in fee, or for life, create a term of years, but one who is himself a tenant for years may grant a smaller estate out of his own. But the tenant of a term, however long, cannot create a life estate, inasmuch as it would be a greater estate than his own. Terms of years ma}^ also be created within certain limits by persons under disabilities to grant a freehold, which will be further explained hereafter.^ ARTICLE II , WHETHER A LEASE OR AN AGREEMENT FOR A LEASE. SECTION. 303. Agreements for leases are of two sorts. 304. Whether a lease or an agreement for a lease. 305. The effect of a want of certainty. § 303. Agreements for tieases may be Classed under two General Divisions, namely: Contracts expressly en- tered into as agreements for leases, and those which operate as agreements by construction of law, though not expressly 1 Stultz V. Dickey, 5 Binn. (Pa.) 285; Van Ness v. Pacard, 2 Pet. 138; Biggs V. Brown, 2 Serg. & R. 14; Van Doren v. Everitt, 5 N. J. L. 460; Templeman v. Biddle, 1 Harr. (Del.) 522; Clark v. Harvey, 54 Pa. St. 142. 2 Shep. Touch. 3, note 1. 3 Infra. Art. HI. (18) 274 CONVEYANCING. CH. V, entered into as such. In respect to the former we shall have but little to say, since ]n"eliniinary agreements for leases are seldom useful or desirable in ordinary transac- tions between landlord and tenant, and beinji executory con- tracts sim))ly, do not call for much notice in a work like the present. It may be remarked, however, that when such contracts are entered into, the safest plan is to insert all stipulations of agreement literally as they are intended to stand in the lease. Thouo^h an agreement which is silent upon the question of covenants, or which provides that the lease shall contain the "usual" or "proper" covenants, will receive a reasonable construction, and will generally be held to imply an agreement by both parties to enter into certain covenants applicable to all leases, yet no covenant can, as a general proposition, be inserted in a lease made in pursuance of such an agreement, except such as are im- plied by law as being strictly incidental to the subject-mat- ter of the contract.^ § 304. Whether a Lease or an Agreemeut. — A\'hether an instrument will be construed to be a lease or an agreement for one, depends upon the paramount intention of the par- ties, as collected from the whole tenor and effect of the instrument.^ If, from the whole instrument taken and compared together, it clearly ai)pears to have been intended as a mere executory agreement for a future lease, tlie in- tention will prevail f or, if on the other hand, the inten- tion of the parties seems to have been that of a present demise, and there appears nothing further to be done, i)os- ses&ion being taken under it, such intention must prevail.* 1 Denas' Pr. Conv. 3G3, 365. 2 Burnett v. Scribner, 16 Barb. 621 ; Price v. Williams, 1 Mees. «fe W. 6; Johuson V. Phoenix Mutual Life Ins Co., 46 Conn. 92; Baker v. Bow- doin, 22 Piek. 401; Poole v. Beutlej% 12 East, 168. And see imte, § 10. ^ Ibid.; Ifallctt v. Wylie, 3 Johns. 47; Thornton v. Payne, 5 Johns. 74; Jackson v. Delacroix, 2 Wend. 433; Shaw v. Farnsworth, 108 Mass. 358; Potter V. Mercer, 53 C:il. 068; Brookbaven v. Baggett, 61 Miss. 383. * Jackson v. Kisselbrack, 10 Johns. 336; Jenkins v. Eldredge, 3 iStory, 325; Kabley v. Worcester Gas Co., 102 Mass. 394; Alderman v. Neate, 4 Mees. & W. 710 ; Bacon v. Bowdoin, 22 Pick. 401 ; Griffin v. Kuisely, 75 ART. II. A LEASE OR AN AGREEMENT. 275 While a mere agreement to give a lease at a future date does not create the relation of landlord and tenant, yet when the owner permits another to go into possession under an agree- ment for a lease a tenancy is created which entitles the person in possession to notice to quit before the owner can sue for possession. 1 If a fuller lease is to be prepared and executed before the demise is to take effect, and possession given, it is an agreement for a lease, and not a lease which creates an estate.^ But where an instrument of this charac- ter contains a clause to the effect that it shall be considered binding until a lease can be executed, it will generally be construed to be a present lease, and there may also be circumstances from which such an intention will be infer- red.-^ Where the mstrument is ambiguous, it has been held that subsequent acts and declarations of the parties may be looked to in aid of the construction sought.* § 305. Want of Certainty as to the time when a term is to commence or end, and the amount of rent to be paid, will, generally, induce courts to construe the instrument as an agreement, in preference to a lease ;^ though, if the in- Ill. 411 ; Haven v. Wakefield, 39 Ilk 509 ; McGrath v. Boston, 103 Mass. 369; Shaw & Farnsworth, 108 Mass. 358. 1 Xeppoch V. Jordan (Oreg.), 14 Pac. Eep. 353. And if there is pos- session for the purpose of putting up a building and this is to continue vintil the rent pays for the construction, the tenancy begins on the com- pletion of the building. Billings v. Canney, 57 Mich. 425; Rice v. Brown (Me.). 16 Atl. Rep. 334. 2 Aiken v. Smith, 21 Vt. 172; People v. Gillis, 24 Wend. 201 ; Buell v. Cook, 4 Conn. 238 ; Wolf v. Mitchell, 24 La. Ann. 433 ; Doe v. Benjamin, 9 Ad. & E. 644; Averill v. Taylor, 8 N. Y. 44; 1 Washb. on Real Prop., 4th ed., 451. 3 Taylor's Landl. & Ten. 32, 34. An agreement to give a more formal lease may amount only to a covenant for further assurance. Jackson v. Kisselbrack, 10 Johns. 336. A provision in a lease that vinless three months' notice of an intention to terminate it is given it shall continue in force for another term of one year and so on indefinitely, such notice to be given three months before the termination of any one year : Held, not to be a mere covenant for renewal but that upon failure to give such notice the lease would continue in operation. Dix v. Atkins, 130 Mass. 171. ■* Chapman v. Bluck, 5 Scott, 533. 5 Doe V. Ries, 8 Bing. 178; Alderman v. Neate, 4 Mees. & W. 704; Dailey v. Grimes, 27 Md. 440; Haughery v. Lee, 17 La. Ann. 22. 276 CONVEYANCING. CH. V. tention of the parties sufficiently apjioar, it may be regarded as a lease ;^ and c'onteni})oraneous acts of tlie i)arties may sometimes be looked into in the construction of ambiiiuous words and plii-ases.- ARTICLE m OF THE PARTIES TO A LEASE. SECTION. 307. Who may make a lease. 308. As to a disseizee. 30U, The lease of a disseizee may operate by estoppel. 310. Of leases made by infants. 311. As to the lease of a person of non-sane mind. 312. Of leases made by married women. 313. Of a lease by the tenant of a term. 314. Joint tenants and tenants in common. 315. Of a lease by a mortgagor. 316. Leases by corporations. 317. A trustee may grant a lease. 318. Of a lease by a cestui que trin^t. 319. Executors and administrators. § 307. Who may make a Lease. — All persons seized or possessed of lands or tenants may grant leases thereof for any period consistent with their own estates, except such as are under some legal disability which renders them inca- pable of entering into a valid contract. Having treated of these disabilities in a former cha])ter,'^ it will not be neces- sary to enter upon a general discussion of the subject here, except as peculiarly affecting leases. § 308. Disseizee. — It has been stated that at common law, as well as by statute in several of the States, every grant of land is void, if at the time of its delivery the land is in J Alderman v. Xeate, 4 Mees. & W, 704. 2 Doe V. liies, 8 Bing. 181 ; Chapman v. Bluck, 4 Bing. (New Cas.)195. 3 Ante, Chap. I, Art. IV. ART III. PARTIES TO A LEASE. 277 the adverse possession of another than the grantor;^ and this applies as well to leases as to purchase-deeds. But if a lessor is in possession at the time of making the lease, he will be deemed to have the rightful possession as to all per- sons holding under him, even though his possession may have been obtained by the disseizin of the rightful owner ;"^ while the lease of a disseizee will not take effect until he enters or recovers possession.^ It is to be remembered, however, that this rule applies only where there is an actual adverse possession of the premises.* Unless there is an actual adverse holding, possession will be deemed to follow the ownership. The possession of a tenant for life is not adverse to that of the remainder-man, and hence the latter may make a valid lease.^ So, an heir may make a lease of land which descends to him, before entry; for he is seized in law, though not in fact.*^ § 309. The Operation of the Lease of a Disseizee by Way of Estoppel. — Although a lease may not be sufficient to authorize the lessee to demand possession for the want of possession in his lessor, it will still operate by way of es- toppel, and inure to his benefit if the lessor afterwards comes into i)osscssion before the expiration of the lease.'' Therefore, if an heir apparent, or a person having a con- tingent remainder, or any interest in expectancy, or who has no title whatever at the time, makes a lease and after- wards an estate vests in him, the lease will operate by way of estoppel to entitle the lessee to hold the land for the time 1 A7ite, § 24. 2 Bac. Abr., Leases, 1, 4; Kedfield v. Utica & S. R. R., 25 Barb. 54. 3 Co. Litt. 48, b. * Co. Litt. 46 b; Plowden, 133-142. ^ Thompson v. The Mayor, etc., 11 N. Y. 115; Smith v. Burtis, 9 Johns. 174; Grout v. Townsend, 2 Hill, 554. 6 Shep. Touch. 269. ^ Co. Litt. 47, 277; Bac. Abr., Leases, 1, 4; Sinclair v. Jackson, 8 Cow. 543; Cocke v. Brogan, 5 Ark. 693; Bank of Utica v. Mersereau, 3 Barb. Oh. 567; Burr v. Stenton, 43 X. Y. 462; Jackson v. Murray, 12 Johns. 201; Jackson v. Stevens, 16 Johns. 110; Jackson v. Bradford, 4 Wend. 619; Austin v. Ahearne, 61 N. Y. 6. 278 CONVEYANCINl . CH. V. specitied.^ And while the lessor is estopped from contend- ing that he had no titlc,-so also a lessee who accepts a lease, is estopped from disj)uting the title of his lessor.-^ Under »the common law, all estop))els were required to be recipro- cal and mutual, that is to say, both parties were required to be bound, or neither would be l)ound.* Therefore, if a man took a lease for years of land belonging to himself, from an infant, ov feme covert, it would not estop him from setting up his title, because infants and feme coverts, by reason of their disability, are not estopped; consequently the lessee was not estopped, for want of mutuality.^ The principle of estoppel as above stated only applied, however, where the lease was by indenture, whereby the deed became the act of both parties.*^ These rules are no longer so strictly followed, and a lessor by estoppel is bound by his demise, though the tenant may elect whether or not to take the term when it accrues; and on the other hand, a tenant is concluded from denying the landlord's title, though the counter-obligations upon the landlord to deliver and permit peaceable possession rest in contract only, and are in no sense estoppels." And even when a lessor is under a dis- ability, such as infancy, or coverture, and the lease is void- able, the lessee is estopped until it is avoided.^ § 310. The Liease of an Infant is not absolutely void, but voidable only, and will bind an adult lessee until the minor chooses to avoid it.'^ If the lease be by deed, he can- 1 Co.Litt. 45, a; Brown v. McCormick, 6 Watts, 60; Fletcher v. Wil- son, 1 Smed. & M. Ch. 370. 2 Green v. James. 6 Mces. & W. 650. 3 Carpenter v. Thompson, 3 N. H. 204. 4 Co. Litt. 352 ; Welland Canal Co. v. Hathaway, S Wend. 480. 5 Co. Litt. 352, a. c Burton Real Prop., § 8.50; 1 Washb. on Real Prop., 4th ed.,454; Wri^'ht V. Douglas, 10 Barb. 97. 7 Taylor's Landl. & Ten., 7th ed., § 00. 8 Russell V. En\'iu, 38 Ala. 44; Grant v. White, 42 Mo. 285; Prevot v. Lawrence, 51 1^. Y. 219. 9 Zouch V. Parsons, 3 Burr. 1800; Scott v. Buchanan, 11 Humph. 408; Kendall V. Lawrence, 22 Pick. 540; Roberts v. Wiggin, 1 N. H. 73; ART. III. PARTIES TO A LEASE. 279 not avoid it until he comes of age;i but he may always en- ter and take the profits until the time arrives when he has legal capacity to affirm or disaffirm the deed.^ No one but the infant himself, or his personal representatives, can avoid a lease on the ground of infancy.^ Although a lease made to an infant is equally voidable by him, it is available to vest the estate in him.* With regard to his liability to pay rent, or to perform the covenants on his part, he is in the same situation as he is in respect to other contracts ; he may disaffirm it when he comes of age. But so long as he remains in possession, his liability to pay rent and perform covenants subsists by virtue of the privity of estate.^ An infant is liable for necessaries, but what are necessaries de- pends upon his circumstances in life. Lodgings ordinarily come within that description, and rooms used in the exer- cise of trade have been so considered ; but the question is usually one for the jury to determine.^ § 311. The Lease of a Person IVon Compos Mentis, if he is not under guardianship, is merely voidable; but if the person be under guardianship, his lease would be void.'^ The guardian or committee of a lunatic is generally author- ized by statute to execute leases of his property, under the direction of the court appointing such officer; but in the absence of statutory authority, he would have no such power. ^ Tucker v. Moreland, 10 Pet. 71 ; Drake v. Kamsey, 5 Ohio, 251 ; Bool v. Mix, 17 Wend. 131 ; Koof v. Stafford, 7 Cow. 179. And see ante, § 309. iBac. Abr., Infancy. 2 Roof V. Stafford, 7 Cow. 179; Stafford v. Roof, 9 Id. 626. 3 Hartness V. Thompson, 5 Johns. 160; Jackson v. Todd, 6 Id. 257; Roberts v. Wiggin, 1 N. H. 73. * GriiKth v. Schwenderman, 27 Mo. 412; Baxter v. Bush, 29 Vt. 465. ■' Kitchen v. Lee, 11 Faige, 107; Henry v. Root, 33 N. Y. 526. 6 Hands v. Slaney, 8 T. R. 578; Lowe v. Griffiths, 1 Hodges, 30. '^ White V. Palmer, 4 Mass. 147; Ingraham v. Baldwin, 9 N. Y. 45; Wait V. Maxwell, 5 Pick. 217; Hovey v. Hobsou, 53 Me. 451; Somers v. Pumphrey, 24 Ind. 238. And see ante, § 26. In Xew York the deed of a person non compos mentis has lately been held entirely void. Van Deu- sen V. Sweet, 51 N. Y. 384. 8 Knife v. Palmer, 2 Wils. 130. 280 CONVEYANCING. CH. V. § 312. The Lease of a Married Woman, unless joined by her husband, or unless specially authorized by statute, is void. ^ But when made under a power contained in a marriage settlement or other instrument authorizino; such an act, it is valid.- At common law, the husband has exclu- ■ sive control over his wife's lands, with the right to lease and take the rents."* But his power of leasing her freehold es- tate does not extend beyond the period of their joint lives, unless he becomes entitled as a tenant by curtesy.* And the wife is not bound by the husband's lease of her lands, in which she has joined during his life-time. After his death she may contirm or al^oid it, at pleasure. At common law, the husband has exclusive and absolute power over the wife's chattel interests in land.^ But if he dies without having disposed of them, they belong to her, and if she survives him, he cannot dispose of them by will.*^ The common-law doctrine in respect to the wife's })roperty has been materially modified by statute in many of the States, so that she may now hold her separate estate, whether leasehold or otherwise, and may enjoy, dispose of and lease the same in the same manner as if she were sole? Though, in most of the States, the husband is still required to join in the lease or conveyance of the wife's land.^ At common law, a married woman was not com})e- tent to assume the responsibilities of a lessee. Her hus- 1 Smith Landl. & Ten., 7th ed., § 101; Murray v. Emmous, 19 X. 11. 483; 1 Washb. on Real Prop., 4th ed., 456; Eatou v. Perry, 29 Mo. 96. 2 Ante, § 233; Eaton v. Whitaker, 18 Conn. 222. 3 Marquat v. Marquat, 12 N. Y. 336. < Jackson v. Ilolloway, 7 Johns. 81 ; Brown v. Lindsay, 2 Hill (S. C), Ch. 542. 5 Co. Litt. 361, b. 6 Co. Litt. 300. rf, h; .Tones v. Patterson, 11 Barb. 572. 7 Prevot V. Lawrence, 51 ISr. Y. 221 ; Hooper v. Smith, 23 Ala. 639; Knapp V. Smith, 27 N. Y. 277; Draper v. Stouvenal, 35 N. Y. 512. And in some States she may lease even to her husband. Albin v. Lord, 39 N. H. 196. And see auto, § 27. s Child V. Sampson, 117 Mass. 62; Den v. Lawshee, 24 N. J. L. 613; Thorndell V. Morrison, 25 Pa. St. 326; Miller v. Hine, 13 Ohio, 365; Reese v. Cochran, 10 Ind. 195. ART. III. PARTIES TO A LEASE. 281 band was liable for the rent which accrued during her occupation, and it made no difference that she was at the time living separate and apart from him.^ But in most of the States a married woman can now take a lease for years, and the term becomes her separate estate, and the rent may be enforced out of her separate property.^ § 313. A tenant for years, unless restrained by special covenants, may grant a smaller estate out of his own.^ And his lessee will be bound by the terms of the subletting, and not by the original lease. No privity of contract exists be- tween an under-lessee and the original lessor ; therefore no covenants entered into by the original lessee are binding upon the under-tenant, although they may be covenants run- ning with the land, such as to pay rent, or to keep in repair.* This important distinction is- to be observed between an under-lease and an assignment of a lease. The under-lessee is accountable only to his immediate lessor for the perform- ance of his covenants ; the land only being subject to the claims of the original lessor. While an assignment trans- fers all the interest of the lessee, and the assignee becomes personally liable to the lessor upon the covenants which run with the land, and the land also remains charged and liable to a distress for rent.-' It is essential to the g-ranting: of an under-lease that some reversion be left in the lessor, though it is immaterial of what duration. If the whole term is granted, it will operate as an assignment.'' 1 Co. Litt. 3, a; Rotch v. Miles, 2 Conn. 638; Edwards v. Davis, 16 Johns. 281. 2 Vandevoort v. Gould, 36 N. Y. 639; Taylor v. Glenuy, 22 How. Pr. 240; Prevot v. Lawrence, 51 N. Y. 219; Westervelt v. Ackley, 62 N. Y. 505; Fiskev. Mcintosh, 101 Mass. 66; Maxon v. Scott, 55 N. Y. 247; Gay V. Ihm, 69 Mo. 584. 3 Xave V. Berry, 22 Ala. 382; Brown v. Powell, 25 Pa. St. 229; Etenv. Luyster, 60 X. Y. 252; Shaw v. Farnsworth, 108 Mass. 357. < Halford v. Hatch, 1 Doug. 183; McFarlan v. Watson, 3 N. X. 286; Dartmouth College v. Clough, 8 N. H. 22; Grundiu v. Carter, 99 Mass. 16. 5 Taylor's Landl. & Ten. 81. 6 Ibid.; Palmer v. Edwards, 1 Doug. 187. 282 CONVEYANCING. CH. V. § 314. Joint tenants, and tenants in ooninion, may trtmsfer their undivided interests separately , or all the parties in interest may join in a lease of the whole estate. When joint tenants joni in a lease, there is but one lease, as they have but one freehold. But where tenants in common join in a lease, it amounts to several leases of their respective interests.^ In such a case, if the lease reserves an entire rent, they may join in enforcing it, but if there is a separate reservation to each, they must bring separate actions. If the letting be a joint one, and one lessor dies, the survivor may recover the entire rent reserved.^ It was formerly the law that one of two partners could not lease partnership property, so as to bind his copartner, without an authority under seal.^ But this doctrme has been relaxed in most of the States, where it is held that one partner may, in the presence of the other, execute a deed for the firm. Thus, a lease made by one partner, where the remainder sign the same as attesting witnesses, was held binding upon all.* § 315. A mortgagor, as a general rule, has no power to grant a lease, subsequent to the mortgage, which can be set up in a court of law against the trustee or mortgagee.^ But such leases are good as between the parties and against all persons except the mortgagee and those claiming under him.*^ If the lease is prior to the mortgage, the mortgagee has no higher rij^hts than the niorlo-airor.' § 31(). In respect to corporations it may be said that the same principles are applicable to the granting of a term of years as of the fee.*^ ^ Towls V. Siuitb, ") J)uru. Si Aid. 8uU; Mantle v. ■\Vollii)gtou, Cro. Jac. 166; Beer v. Beer. 12 C. B. SO. 2 Codman v. Hall, !J Allen, 338; 1 Washb. ou Real Prop., 4th ed., 461. ^ Dillon V. Brown, 11 Gray, 180; Turbeville v. Kyan, 1 Humph. 113. ■* Bond V. Ailkiu, (J Watts A S. 16;"); Bussniau v. Gauster, 7:2 Ta. St. 291 ; Hart V. Withers, 1 Pa. 285; Grazebrook v. McCreedie, 9 Wend. 439. ■■' Keith V. Swan, 11 ]\lass. 216. '' Collins V. Torry, 7 Johns. 278; Willington v. Gale, 7 Mass. 138; Lat- imer V. Moore, 4 McLean, 110. ^ Rogers v. Humphreys, 4 Adol. & El. 299; Moss v. Gallimore, 1 Doug. 279. " Angell & Ames ou Corp. GO. ART. III. PARTIES TO A LEASE. 28S § 317. A trustee of land is the owner of the legal estate, and therefore may grant a lease, provided it be consistent with the quality of estate which he possesses. If there are several trustees, they must act jointly. Where the author- ity is joint, a lease made by part of them only would be void.^ The person beneficially interested should also join with the trustee; otherwise, if the lessee takes with notice of the trust, he will be subject to the control of a court of equity. Though, a trustee who holds the fee may grant a valid lease for a reasonable period. What would be reason- able depends upon the peculiar circumstances of each case. § 318. A lease from a cestui que trust conveys no in- terest without the concurrence of the trustee,^ and where both concur in a lease, covenants which are designed to run with the land should be entered into with the trustee, though the rent may be reserved generally during the term, without specifying to whom it is to be paid, leaving the law to give it its due appropriation.^ § 319. Executors and Administi'ators. — Terms of years, being personal estate, descend, as we have before stated, to personal representatives. Executors and administrators, therefore, have absolute power to assign or lease them, the rent being assets in their hands .'^ And executors who hold the legal estate in the realty may make such leases as come within the course of a due administration of the estate. But administrators, as a general rule, can only act under the authority of the court which appointed them.^ ^ 1 Story's Eq. Jur., § 1062. 2 Blake v. Foster, 8 Term Kep. 487, 492. ■^ Webb V. Eussell, 3 Term Kep. 393. * Bac. Abr., Leases, 1, 7. 5 Bank of Hamilton v. Dudley, 2 Pet. 492 ; Porter v. Williams, 9 N. Tf . 142. 284 CONVEYANCING. CH. VI. CIIAPTEK VI.— The Formal Parts of a Lease. Article I. Date of Commencement and Termination. II. Words of Demise — Premises Let. III. Of the Keservation of Rent. rv. Conditions of Forfeiture and Re-Entry. V. The Usual Covenants in Leases. ARTICLE L DATE OF COMMEXCEJ^EENT AXD TERMIXATIOX. SECTIOX. 321. Preliminar}' remarks. 322. A certain beginning and certain ending essential to a term. 323. A term originally uncertain may be rendered certain, how. 324. The time of commencement, how fixed. § 321. Preliminary Remark.s. — We may be permitted to repeat that a demise for a lonirer i)eriod than that for which parol leases are binding, must be by deed. So must any lease which is intended to embrace the various cove- nants usually entered into by the parties. An estate for life being in the nature of an incorporeal hereditament, must also be created by deed. Since leases by deed are, generally, required to be entered into with the same solem- nity as deeds transferring the fee, and as the same general principles apply in respect to the names of the parties, re- ART. 1. COMMENCEMENT AND TERMINATION. 285 citals and the like, it will only be necessary to refer the reader to those heads under a former chapter.^ § 322. A Certain Beginning- and a Certain Ending Essential to a Term. — A certain bef^inninff and a certain time at which the lease is to terminate is essential to a jjood lease for years. A definite and limited period of duration is of the essence of the term.^ But although there may ap- pear no certainty of years in the lease, yet if by reference to a certainty it may be ascertained and made certain, it is sufficient.^ The maxim is "that is certain which may be rendered certain." The illustrations given by Coke are as follows: " If a man shall make a lease to J. S. for so many year as J. N. shall name, it is a good one; for when eJ. N. has named the number of years, the duration of the term becomes fixed. And if the lease be to J. S. for twenty-one years, if he lives so long, it is good. But a lease given to a person for so many years as he shall be parson of Dale, or so man}' year.sas he shall live, would not only be for an un- certain time, but never could be made certain so as to be valid as a term."'^ Though if properly executed, it might be good as a freehold estate. § 323. A Term Originally Uncertain may be Rendered Certain by Matters Ex Post Facto. — Thus, if it be granted for so many years as A. B. shall name, the lease though un- certain at the beginning will be valid ab initio, after the naming of the years.^ So a lease at a specific rent " until the lessee shall, out of the rents, repay himself " for a cer- tain amount of expenses incurred by him in repairs, was held sufficiently definite to create a valid term.'^ A lease for the whole time that the lessee may be [)Ostmaster ex- ^ Ante^ Chap. II, Arts. III., IV. For form of lease, see Stiinson's Amer. Stat., § 1487. 2 By statute in some of ttie States long leases of agricultural lands are prohibited. Stimson's Amer. Stat., § 405. 3Shep. Touch. 272. •* Co. Litt. 45, h; Prest. Conv. 159. And see West. Transp. Co. v. Lan- sing, 49 N. Y. 508. 5 Goodright v. Kichardson, 3 Term R. 463. 6 Batchelder v. Dean, IG X. H. 268. 286 CONVEYANCING. CH. VI. pires with the expiration of the coniinis.sion hekl by hi in lit the time of the execution of the lease. ^ A lease " for years," without stating how many, would be good for two years.- But a lease, " to hold from the tirst day of Ai)ril, from year to year, so long as the parties agree," was held not necessarily to constitute a lease for more than one year.^ A lease may also be of perpetual duration. Thus, a demise "as long as water runs or grass grows," was held good as a perpetual lease.* But devises of this description are usually in the form of a grant of land in fee, reserving the payment of an annual rent instead of a present consider- ation.'' § 324. The Time of Commencement. — The date will fix the time for the commencement of the lease, unless some other period is specified in the instrument itself for that purpose ; but if there is no date, or an impossible one, the time will be considered as having commenced from the de- livery of the decd.^ If the date is such as'to render the limitation uncertain, as if it be made January 1st " to hold from the first day of August," without saying of what year, the lease would be void for uncertainty." If a lease for years be limited to commence after the expiration of a lease which is recited to have been made to a third person, when in fact there never was such a lease, or if it had already expired, or is void, the new lease will take effect immediately on its execution ; except that the interest of the tenant will only begin upon entry. In a lease for 1 Easton v. Michell, 21 111. App. 189. 2 Bac. Abr., Leases, 3. •'' Fox V. Nathans, 32 Conn. 3.")!. 4 White V. Fuller, 38 Vt. 193. 5 Co. Litt. 43, b. 6 Taylor's Landl. & Ten., § 113; Doe v. Day, 10 East, 427. The jury have a right to take into account and consider the time when the de- fendant went into possession, the time from which he paid the rent, and all other circumstances thereon which throw any light upon the ques- tion of when the lease was to commence. Tendill v. Neubergcr (Mich.), 35 N. W. Rep. 249. " Bac. Abr.. Leases (L.), 1. ART. II. WORDS OF DEMISE. 287 years an actual entry is necessary to vest the i)ossession in the lessee; the bare lease gives him only a right to enter, which is called an interesse termini.^ An estate for life needs no expression of the time at which it is to commence, because it cannot be made to commence in futuro, neither can its duration be ascertained.^ ARTICLE II. WORDS OF DEMISE— PKHMISES LET. SECTION. 326. The words of demise. 327. The description of the premises. § 326. The Words of Demise usually employed in the creation of a term of years are "grant," "demise" and "to farm let." But no particular form of words is neces- sary to a lease. Any expression which shows an intention on the part of the lessor to divest himself of the posses- sion in favor of the lessee, and a corresponding intention on the part of the lessee to come into possession of the premises for a determinate period of time, is sufficient.^ 8ome words, however, have a technical and more extensive signification than others. For instance, the words "do demise and let," were held to import the creation of a term to begin presently, and not at a future day on a contingency.* We have seen in a former chapter, that the words "grant" and "demise" in a lease for years create an implied war- ranty of title and a covenant for quiet enjoyment, the effect of which will be further noticed under the head of Covenants in Leases.^ 1 1 Washb. on Real Prop., 4th ed., 439. 2 Taylor's Landl. & Ten., § 70. ^Hallett V. Wylie, 3 Johns. 47. ^ Meeting House v. Hilton, 11 Gray, 409. 5 Ante, § 173; in/»'a, § 344; Stott v. Rutherford, 92 U. S. 107 ; Berring- 288 CONVEYANCING. CH. VI. § 3i7. TIk' Description of the Premises constituting the subject of the demise must be sufficiently accurate to ascertain the property intended, with reasonable certainty, or the lease will be void.^ The rules of construction to be ap})lied in identifying boundaries in a lease, are the same as those applicable to ijrants in fee,^ which have heretofore been considered.'^ But in practice, it is (piite common to use less accuracy in the description of the premises in a lease than is usual in case of deeds conveying a freehold.^ As a rule, in drawing a lease, it is not advisable to par- ticularize too minutely all the various circumstances of name, place, boundary, occupation, etc., except such as are sufficient for the jnirpose of identity, as numerous circum- stances or conditions lead to confusion, and questions fre- quently arise as to how far particular explanations may qualify words of general description. All things usually comprehended under the words "house," "farm," "land," "store," etc., together with the appurtenances necessary for the proper use and enjoyment of the thing let, pass to the tenant under such general words of description, unless there be an express exception.'^ But whether certain prem- ises are parcel of or appurtenant to the demise or not, de- pends u[)on the intention of the parties, and is always mat- ter of evidence.^' It may be added that any inaccuracies ton V. Casey, 78111. 317. And see Grannis v. Clark, 8 Cow. 3G; Sumner V. Williams. 8 Mass. 201. 1 Diugniau V. Kelly, 7 Ind. 717; Pierce v. Minturu, 1 Cal. 470; Mc- Laughlin V. Bishop, 35 N. J. L. 512. 2 The rule, that where boundaries are given with reference to fixed and known objects, they control coursis and distances, — declared to be universal, aud applied to a lease. Kamphouse v. Gaffuer, 73 111. 453. 3 Ante, Ch. II., Art. VII. * Though the description of the premises in a lease is imperfect, yet if they were taken possession of and occupied under the lease, it is suffi- cient. Pierce v. Minton, 1 Cal. 470. 5 By the lease of a building, everything which belongs to it, or is used with it, and which is reasonably essential to its enjoyment, passes as incident, unless especially reserved. Biddle v. Littletield, 53 N. 11. 503; Bell V. Golding, 27Ind. 173; Doyle v. Lord, G4 X. Y. 432; Canfield v. Ford, 28 Barb. 33G; Sherman v. Williams, 113 Mass. 481. 8 Trimble v. War J, 14 B. Mon. 8. A lease of a ''building" conveys the I ART. III. RESERVATION OF RENT. 289 as to numc, amount, quantity or measurements will be cor- rected, if there be enough in the lease to make the purpose and intention of the parties certain. ARTICLE III. OF THE RESEKVATION OF EENT. SECTION. 329. There must be a cousideration — may be what. 330. Of the words used in reserving rent. 331. To whom reserved. § 329. Necessity of Consideration. — Some consider- ation must appear, although it need not be what is technic- ally called rent, or a periodical render of compensation for the use of the premises. It may be a sum in gross, or the natural affection which one party has for the other; or the reservation may be, not only money, but grain, animals, produce, or the personal service of the lessee.^ And it is not absolutely necessary that the amount of the reservation be fixed at the creation of the tenancy, as this may be de- termined afterwards.- If no amount is agreed upon, the tenant will be bound to pay what the premises are reason- ably worth. ^ If the consideration is fraudulent, unlawful, or immoral, the lease will be void.* § 330. Words Used in Reserving- Ren^-— The words generally used in reserving rent are "yielding and paying," but any form of words which expresses the meaning and intention of the parties will be equally effectual. And it laud uuder the eaves and projections, if that land is owned by the lessor. Sherman v. Williams, 113 Mass. 481. 1 Taylor's Landl. & Ten., § 152. 2 4 Kent's Com. 462. 3 Scrautom v. Booth, 29 Barb. 171 ; Newell v. Sanford, 13 Iowa, 191. t Browne v. O'Dea, 1 Sch. &L. 115. (19) 290 CONVEYANCING. CH. VI. is suflScient that the reservation be made in general terms, without saying to whom. In that case tlie intent will be directed according to the nature of the grantor's interest,^ and if the lessor should die, the rent would go to his heirs.^ § 331. ToAVliom Reserved. — If a special reservation is made, care must be taken that it is made to him from whom the estate in the land is derived.^ Rent, as suclu cannot be reserved to a stranger, for want of privity of estate."^ As a general rule, rent reserved to be paid during the term goes to the person entitled to the reservation ; but it is proper, when the demise is of a chattel interest, to reserve the rent to the lessor and personal representatives of a life estate, to him and his heirs. Upon the death of a landlord, if the rents and profits be not devised, they attend the es- tate in its descent to the heir;-^ and if there are several heirs, the rent becomes several, and eacii heir may maintain an action upon the covenant to recover the portion of the rent due him." ^ Jaques v. Gould, 4 Ciish. 384. 2 Co. Litt. 47; Plowd. 171 ; Sacbeverell v. Froggatt, 2 Saimd. 367. 3 Co. Litt. 47, a; llornbeck v. AVestbrook, !) John?. 73; Ege v. Ege, 5 Watts, 138; Gilbertson v. Richards, 4 Hurl. & Nor. 27(;. ^ lu BreAver v. Dj^er, 7 Cui^h. 337, the reservation of rent to a stranger was held binding upon the principle that, "when one person, for a valu- able consideration, engages with another, l)y simple contract, to do some act for the benefit of a third, the latter who would enjoy the benefit of the act, may maintain an action for the breach of such engagement.'* But in Exchange Bank V. Rice, 107 Mass. 41, the court overrules that doctrine. And see Mellen v. Whipple, 1 Gray, 317. •'' 4 Kenfs Coui. 287. Rent accruing after lessor's death, is a chattel real, and descends to the heir, and does not go to the executor. Green V. Massie, 13 111. 3G3. "Crugerv. McT.aury, 11 X. Y. il!). ART. IV. FOUrEITURE AND IJE-ENTRY. 291 ARTICLE IV. CONDITIONS OF FORFEITUEE AND RE-ENTRY. SECTION. 333. Purposes and form of such condition. 334. Wliat covenants may be enforced by condition. 335. Conditions not favored in law. 336. Ttie demand necessary to make a condition available. 337. What will constitute a breach of the condition. 338. Proviso for re-entry in case of forfeiture. 339. Who may take advantage of a condition. 340. Condition once waived cannot be enforced again. 341. Until re-entry the estate remains in the lessee. § 333. Purposes, and Form of the Condition. — By eon- ditious of forfeiture and re-entiy is meant a clause of con- tingency upon the liai)peuing of which the estate granted may be defeated.^ Such a clause is generally used as a means of securing the performance of stipulations contained in the lease, by providing that in case of breach, the lease shall forfeit and become void, or that the lessor may enter and defeat the estate of the lessee.-^ The usual and proper words to make a condition are " upon condition,"' or "pro- vided that," but no particular form of words is necessary. Any words which show the intent will be sufficient. The same words may import both a covenant and a condition.-^ § 334. Wliat Covenants may be Enforced by Condi- tion. — The performance of any covenant running with the estate n)ay be provided for by condition, whereby the lessor, his heirs or assigns may enter, for a breach, and re- possess the [)remises as if no lease had been made. Among the covenants to which such conditions are commonly at- tached, are the covenants to pay rent, to pay taxes, to re- pair, to i)erinit the lessor to enter and inspect the state of 1 2 Bl. Com. 299. - la the absence of a provision therefor in the lease non-payment of rent does not work a forfeiture. Buckner v. AVarren. 41 Ark. 532. •^ Co. Litt. 20.5. b; .Jackson v. McClallan, 8 Cow. 295. And see Crawley V. Mullins, 4S Mo. 517. 292 CONVEYANCING. Cll. VI. rt-piiir, and to icpair ii[)()n notice of want of repair, to insui-e, not to use the premises f)thGr\vise than as a ))riviite dwelling (or other jmrpose for whieh the same is intended to he used) witliout license, and not to assign or underlet without the written consent of the lessor. \To be valid, a condition must not he against the policy of the law, such as an unwarrantable restraint of trade, or marriage, or the pojtVer tojUienate, or immoral m its tendencies, as if it be to encourage crime, or the omission of a duty. § 33."). Conditions which Work a Forfeiture are not Favored in Tiaw, and are strictly construed. But such conditions as are annexed to estates for years are, as a rule, more favored than those which tend to defeat freehold es- tates. Thus, a grant to one in fee with a condition not to alien would be void, though such a condition annexed to an estate for years may be jjood.^ But courts always con- strue conditions so as to save a forfeiture, if it can fairly be done.'- § 33(). Of the Demand Necessary to make a Condition Available. — At common law, a party wishing to avail him- self of the right to enter for the breach of a condition to pay rent must ni;ike demand of the precise sum due, in the evening of the day the same becomes duo, long enough be- fore sundown to have light by which to count tiie money ."^ And such demand, moreover, must be made upon the land and at the most notorious place upon it, which would be the front door of the dwelling-house, if there was one on the laud, unless some other place was agreed upon.^ Nor will the fact that no one is present obviate the necessity of an actual demand, or authorize it to be made at a different time or ))lace.-'' Although the demand must be nnuie before sun- 1 limUtu on Keal I'lop., § 8.52. 2 Spear v. Fuller, 8 X. II. 174; Chapmtui v. Kirby, 49 111. 211; Mc- Questen v. Morgan. 34 N. II. 406. 3 Co. Lift. 202. n, note; Chadwick v. Parker. 44 111. 32G; Jones v. Reed, 15 N. H. 08; Willard v. Eentou, 57 Vt. 28G. •> Dui)pa V. Mayo, 1 Saund. 287; McCJIynn v. Moore, 25 Cal. 384. •■•Co. I.itt. 202, 'f; Chapuiau v. Harvey, 100 Mass. 354; Chadwick v. ART. IV. FORFEITUKE AND RE-EMTRY. 2U3 down, the iciit is not clue until midnight, and a forfeiture may be saved by the lessee's tendering the rent due at any time before that hour, allowing sufficient time to count the money.^ The i)recision required in the fulfillment of the pre- requisites above mentioned, to enable a landlord to take advantage of a forfeiture for non-payment of rent, ren- ders it difficult and perplexing to succeed in this respect. It is to avoid this that stipulations waiving demand are inserted in leases.^ Where a lease provides that the lessor may enter for a breach without previous demand being made, no demand is necessary.^ The importance of insert- ing such a clause in drawing a lease of this character will be apparent to every one. Whether the demand is neces- sary when the covenant is to pay taxes, does not appear to be well settled.'^ § 337. What will Constitute a Breach. — In consider- ing what will constitute a breach of a condition sufficient to work a forfeiture, the strictness with which courts construe and apply conditions and forfeitures will be further illus- trated. Thus, where the clause giving the right of re-entry was " if the lessee shall do or cause to be done any act, matter or thing, contrary to, and in breach of any of the covenants," one of the covenants contained in the lease being to repair, the court held that the condition only re- lated to acts done, and not tlie omission to make repairs.^ I\ And where a lease, among other things, contained a cove- nant not to assign or underlet, and a condition was inserted Parker, 44 111. 32(); Chapman v. Kirby, 49 111. 211; .Jackson v. Kipp. 3 Wend. 230; Renisen v. Conklin, IS Johns. 447; McQuesten v. Morgan, 34 N. II. 400. ^ Co. Litt. 202, a; Academy of Music v. Hackett, 2 Hilton, 217. 2 Byraue v. Rogers, S Minn. 282. 3 2 Piatt on Leases, 338; Fifty Associates v. Hovvland, 5 Cush. 214; Sweeney v. Garrett, 2 Disney (Obio), 601. ■* Meni v. Rathbone, 21 Ind. 4.54, holding such a demand to be neces- sary. Contra, Byrane v. Rogers, 8 Minn. 285. And see Jackson v. Har- rison. 17 Johns. Gti; Garner v. Ilannab, Duer (N. Y.), 262. 5 Doe V. Stevens, 3 Barn. & Ad. 299. o V 294 CONVEYANCING. Cll. \J. that the lessor iiiii2:ht enter if the lessee failed to ))ay rent, or eoinniitted waste, an assi<;ninent by the lessee was held to be a breaeh of his covenant merely, and not a breach of the condition.^ So a condition to underlet is not broken by an assio^nnient.- Nor a condition not to assign, ])y under- letting the premises.-' A condition not to alien is not broken so as to work a forfeiture, if it be done against the will of the lessee, as by decree of court, unless there is an express condition to that effect.* And ii])on the death of a lessee his executor may assign the tc;rin, unless expressly restricted from so doing.^ § 338. Provisos for Re-Eiitrj-. — Jn tin; absence of a proviso for re-entry in case of forfeiture, the lessor would have no such })()wer, and this a})plies alike to ail covenants in a lease. 'J'he mere breach of a covenant enables the lessor to sue for damages only. So, a proviso m a lease to re-enter for condition broken, can onl^ operate during the term, and vnnishes when that ends.** § 331). Who may Take Advantaj^c of a F<>rf<'itiire. — Conditions are intended solely for the benefit of the lessor, andean only l)e taken advantage of by him or his assigns.^ Even though a lease, by its terms, is to be void if the con- dition is broken, this is construed to be at the o[)li()n of the lessor, and may be enforced by him or not at his election.*^ It is a Dersonal ii";ht, and cannot be assigned after tli^e con- dition is broken, so as to give the purchaser a right to enter for a breach arising before he became the owner.'' But the assignee of the reversion has the same advantage against ' JJuiUL'.s V. McCubbiu, 3 Kan. 22G; Spear v. Fuller S N. II. 174. 2 Lynde v. Hough, 27 Barb. 41."); Field v. Mills, ;5;5 N. J. L. 2.J4. ^ Hargrave v. King, 5 lied. Fq. 430; rariiientcr v. Webber, 8 Taunt. 593. ■* Jackson v. Corliss, 7 Johns. r)31 ; J Suiitlfs J. cad. Cas. 1st Ani. Ed. G6. ■• 2 Piatt ou Leases, 26.5; Taylor's Landl. &Ten., § 408. « Johns V. Whitley, 3 Wilson, 140. ' Way V. Keed, (I Allen. 304: King's Chapel v. IVlliani, i) Msiss. 501; Jackson v. Topping, 1 Wend. 388. 8 2 Piatt on Leases, 329. "Trask v. Wheeler, 7 Allen, 110. ART. IV. FORFEITUKE AND RE-ENTRY. 295 the lessee, for a breach of condition made after he becomes owner, as the original lessor had.^ At common law, an assignee of a reversion could not enter for a condition broken, the law not favoring the assignment of a chose in action;^ but the statute, 32 Henry VIIJ., ch. 34, remedied this, by providing that assignees or grantees of a reversion should be entitled to "like advantages against the lessees, their executors, administrators and assigns," as the lessors and gi'antors mio-ht have had.^ The assignee of the re- version cannot take advantage of a breach of every con- dition ; for the statute is held to refer only to conditions to do anything incident to the reversion, and not to conditions to do or not to do collateral acts.* An assignee of the re- version for only a part of the land is not entitled to the benefit of the statute.^ A distinction, however, must be noted between a grantee of the reversion for only a part of the land and a grantee of a part of the reversion.^ The latter is clearly within the statute. Although it is invariably held that a condition cannot be apportioned by the act of the grantor, some cases decide that, like a rent charge, it may be apportioned by the act of the law. Thus, it was held that one who claims as one of six children, the heirs of the owner of a rent charge, with a condition of re-entry, upon premises leased in fee, subject to such rent charge and condition of re-entry, may, upon non-payment of the rent, maintain an action of ejectment to recover one undivided sixth part of the demised premises." The above statute has been very generally re-enacted in the United States.^ 1 Co. Litt. 215, a; Burt. Real Prop., § 855. 2 Comyn Landl. & Ten., 285; Eiee v. B. & W. R. Co., 12 Allen, lil; Crawford v. Chapman, 17 Ohio, 449. 3 Stockbrid^e Iron Co. v. Cone Iron Works, 102 Mass. 84. ^CoQiyu Landl. & Ten 286; Co. Lilt. 215, b. 5 2 Piatt on Leases, 232; Co. Litt. 215, a. e Cruger v. McLaury, 41 X. Y. 225; Wright v. Burroughs, 3 M. G. & S. 685. '' Cruger v. McLaurj', 41 X. Y. 225; Jackson v. Topping, 1 Wend. 388; Colev. Patterson, 25 Wend. 456. s Taylor's Landl. & Ten., § 295. But not in Ohio. Crawford v. Chap- 296 CONVEYANCING. CH. VI. § 340. A Condition having been on<'e "Waived cannot be Enforced again. — 1'lius, for instance, if the condition were not to underlet without the lessor's consent, and the lessor should give express license to the lessee to do this, the right to enforce the condition as to any subsequent breach would be forever gone.^ But a mere waiver by ac- quiescence, although it would ratify the assignment acqui- esced in, would not extend to future assignments.^ If a lessor acquiesce in the tenancy by accepting rent of the premises, after knowledge that a breach of condition has been committed, he will be presumed to have waived the forfeiture;'^ but to have that effect, it must be rent which became due after the breach.* Such a waiver, as we have stated, would not extend to a subsequent breach. § 341. Until Re-Entry the Estate Remains in the Les- see. — Until re-entry is mjide by the lessor, for breach of a condition, the estate remains in the lessee and his assigns, the same as before the breach, since a condition does not operate like a conditional limitation to determine the estate. The jreneral nature of conditions, as distinguished from limitations and covenants, has been treated of in a former part of this work to which the reader is referred.^ man, 17 Ohio, 449. Aud see Van Rensselaer v. Hays, 19 N. Y. 68; Tyler V. Heidorn, 4(5 Barb. 439. 1 Dumpor".s Case. 4 Coke, 119, b; Cartwright v. Gardiner, 5 Cnsh. 281 ; Bleecker v. Smith, 13 Wend. 530; Dakiu v. Williams, 17 Wend. 447; Mc- Kildoe V. Darracott, 13 Gratt. 278; Gannett v. Albree, 103 Mass. 372; Murray v. Harway, 56 N. Y. 343; Lynde v. Hough, 27 Barb. 415; Pen- nock V. Lyons, 118 Mass. 92. In England, by Statutes 22 and 23 Vict., ch. 35, §§ 1, 2 aud3, the above law is changed, by which a license to do any- thing which would be otherwise a breach of a condition or covenant in a lease, will extend only to the specitlc act licensed to be done. 1 Washb. on RealProp., 4th ed., 472. vVnd see 7 Amer. Law Review, 633. 2 Bm-t. on Real Prop., § 853; Doe v. Bliss, 4 Taunt. 735. 3 Ireland V. Nichols, 46 N. Y. 413 ; McGlynn v. Moore, 25 Cal. 384; Coon V. Brickett, 2 X. H. 163. •» Co. Litt. 211, b; Bleecker v. Smith, 13 Wend. 530; Hunter v. Oster- houdt. 11 Barb. 33; .Jackson v. Allen, 3 Cow. 220; Gomber v. Hackett, 6 Wis. 323. ^ Ante, Ch, II., Art. X. ART. V. USUAL COVENANTS IN LEASES. 297 ARTICLE V. THE USUAL COVENANTS IN LEASES. SECTION. 343. Express and implied covenants. 344. Of the covenants implied on the part of the lessor. 345. The covenants implied on the part of the lessee. 346. Who will be bound by implied, and who bj^ express covenants. 347. Real and personal covenants. 348. What covenants run with the land, and what do not. 349. The effect of a covenant running with the land. 350. When assigns must be named, to be affected by a covenant. 351. The express covenants usually entered into by the lessor. 352. The covenant for quiet enjoyment. 353. The covenant to repair. 354. The covenant to renew the lease. 355. Covenants against Incumbrances — for further assurance. 356. The usual express covenants on part of the lessee. 357. Of the covenant to pay rent. 358. To pay taxes and other assessments charged upon the premises. 359. The covenant to insure the premises. 360. Not to use the premises for purposes of trade. 361. Not to assign or underlet. 362. To deliver up the premises in good repair. § 343. Express aud Implied Covenants. — Covenants are usually inserted in leases for the purpose of limiting or otherwise defining the rights and duties of the parties; but if no express agreement in this respect is contained in the lease, the rights and obligations of the parties are regulated by law. As thus distinguished, covenants are either ex- press or implied, or, as sometimes termed, covenants inlaw or in deed. We have heretofore alluded to the covenants implied by the words "grant," "demise" and "lease," and it will not be necessary to repeat what has been said on that subject.^ § 344, Covenants Implied on the Part of the Lessor. — ^ Ante, § 173. There is no implied covenant for quiet enjoyment raised by the use of the word "demise"' in a lease, when later it is expressly stipulated that nothing therein contained should be con- strued to imply such a covenant. Maeder v. Carondelet, 26 Mo. 112. 29y CONVEYANCING. CH. VI. Aside tVoiii the covenants inij)lie(l l>v tbe words mentioned, or hoiii Muy particuhu foi"ni of words, the law siipi)oses that when a man makes a lease, he has :i good tith> to the hind, and consequently a right to lease it; and Ids under- taking to do so implies a covenant to tins effect. It is also to be undevbtood as a condition of his right to demand rent, that the lessee is not to be disturbed in his possession of the premises during the term, by the lessor or by any other person having a paramount title, ^ And this covenant is implied on the part of a lessor in every case of a tenancy for a fixed period, however short it may be.^ But there is no such implied covenant against the acts of strangers.^ And the covenant for (juiet enjoyment extends only to pos- session, while the covenants implied by the words "demise," etc., extend to title. The former is broken only by actual disturbances of possession by the lessor or some one hold- ing a paramount title.^ The latter may be broken wherever a covenant for seizin, right to convey, or against incum- brances would be broken.^ When a lease for years contains an express covenant for quiet enjo^^ment, no other or further covenant in respect to enjoyment will be implied, although in such cases a cove- nant for quiet enjoyment is, ordinarily', imjdied." For ex- ample, if a lessor covenants against the acts of a particular person only, his general implied obligation is restricted by his special covenant, and a molestation by that person only will constitute a breach of the covenant.^ 1 Burwell v. .Tacksou, 9 N. Y. 535; Mack v. Patcliin, 42 N. Y. 167; Buugher V. Wilkiiis, K! Md. 35; Gazzolo v. Chambers, 73 111. 75; Ber- riiigton V. Casey, 78 111.317; Wade v. Halligau, 10 111. 507; Schuykill, etc. R. R. V. Scliinocle, 57 Pa. St. •273. The doctriue is true also of a lease of au iucorporeal hereditameut. Mayor v. Mabie, 13 N. Y. 150. 2 Hart V. Windsor, 12 Mees. & W. 85; Whitney v. Allaire, 4 Den. 554. 3 Moore v. Weber, 71 Pa. St. 429; Branger v. Maneiet, 30 Cal. G26. ^ Gardner v. Keteltas. 3 Ilill, 330; Coddington v. Duuhain, 45 How. Pr. 40. ■> Miller v. Thornton, 1 Diiv. 3G9. 6 Gaiio V. Vauderveer, 34 N. J. L. 293. 7 II.. well V. Richards. 11 East, G42; Burr v. Steuton, 43 N". Y. 4G2. Airr. V. USUAL covenants in leaspjs. 299 111 the absence of an express covenant to that effect, a lessor is not bound to make repairs uj)on the leased prem- ises. ^ Neither is there any implied contract on the part of the landlord that the premises are tenantable or fit for any particidar use.- Yet it has been held that, when a landlord knows that a cause exists which renders the house unfit for occupation, it is a wrongful act on his part to rent it without notice to the lessee of its condition ; and if, after discover- ing and experiencing its injurious effects, the tenant is com- pelled to quit the house, the landlord cannot enforce the contract for payment of rent.'^ § 345. Covenants Implied on the Part of the Lessee. — A covenant to paya fair rent is implied on the part of every tenant, so long as he occupies the premises without obstruc- tion on the part of the landlord.^ And, independent of any express agreement, the law also raises an implied obligation on his part to treat the premises in such a manner that no 1 Clark V. Babcock, 23 Mich. 1G4; Estep v. Estep, 23 lud. 114; Witty V.Mathews, 52 N. Y. 512; Leavitt v. Fletcher, 10 Allen, 121; Doupe v. Geuiu, 45 N. Y. 119 ; Elliott v. Aiken, 45 X. H. 3G ; Krueger v. Ferrant, 29 Minn. 385. But otherwise in Georgia. White v. Montgomery, 58 Ga. 204; Lewis V. Chisholm, 68 Ga. 40; Code Ga. 1882, § 2284. Xor can the lessee in such a case make the repairs and charge the lessor with the cost of them. Biddle v. Reed, 33 Ind. 529. If a tenant puts permanent repairs on the premises without consent of the landlord, he cannot charge the landlord for them. Kline v. Jacobs, 68 Pa. St. 87; Dunn v. Bairly, 88 X. C. 91. -' Button V. Gerrish, 9 Cush. 89; Libbey v. Talford, 48 Me. 316; Kerr V. Merrill, 4 Mo. App. 591 ; McGlashan v. Tallmadge, 37 Barb. 313 ; Jaffe V. Harteau, 56 X. Y. 398; Foster v. Peyser, 9 Cush. 242; Clark v. Bab- cock, 23 Mich. 164; Gill v. Middleton, 105 Mass. 477; Wilkinson v. Clau- son, 29 Minn. 91 ; Lucas v. Coulter, 104 Ind. 81. 3 Wallace v. Lent, 29 How. Pr. 289. And see Looney v. McLean (Sup. Jud. Ct. Mass.), 11 Cent. L.J. 196; Brunswick-Balke Co. v. Ilees (Wis.), 34 X. W. Rep. 732. When a landlord rents a storehouse hi a tenant for the purpose of selling goods therein, in the absence of the tenant's knowledge to the contrary, the law will presume that it is in a condition suitable for the purpose for which it was rented; and if not, and dam- age n suits to the tenant's goods in consequence of the defective condi- tion of the premises, the landlord is liable. Whittle v. Webster, 55 Ga. ISO. * Taylor-s Laiidl. & Ten., 7th ed., § 371. 300 CONVEYANCING. CH. VI. H'lhstiuitial injury shall ho done to thoiii, hy any willful or noglii^iMit conduct on his part.^ This implied ohligation is part of the contract itself, as much so as if incorporated into it by express hmguage. It results from the relation of landlord and tenant between the parties wiiich the contract creates.- Thus, it has been held that a tenant for years, or from year to year, must keej) the i)remises wind and water tight,-^ and make fair and tenantable repairs, such as keeping fences in order, replacing doors and windows that are broken during his occupation, and the like.'* But in absence of an express covenant to repair, a tenant is not answerable for accidental damages, nor is he bound to re- build, if buildings are accidentally destroyed by lire or otherwise.-^ Nor is he bound to do painting, whitewashing, or anything that might be considered a mere matter of ornament." § 346. AVhowillbe Bound by Implied, and Avho by Ex- press Covenants. — Notwithstanding the obligations imposed by .law upon the parties to a lease, it is usual, and always advisable, to insert such express covenants in the instrument as may be agreed upon, since one who enters into an express covenant remains bound by it, though the lease be assigned over, while implied covenants are obligatory upon the ten- ant during his occupation of the premises only. For ex- 1 Com. Laiidl. tt Ten. ISS; United States v. Bostwick. U U. S. ns. 2 llolford V. Dunnett, 7 Mees. v another tenant of the story above. Greene v. Hague, 10 111. App. 598. Express covenants to repair are not to be enlarged beyond their fair intent. Clark v. Babcock, 23 Mich. 164; Witty v. Matthews, 52 iST. Y. 512. 5 Camp v. Wood, 76 N. Y. 92; Edwards v. X. Y. & H. R. Co., 98 N. Y. 25. 6 Looney v. McLean, 129 Mass. 35; Woods v. Xaumkeag S. C. Co., 134 Mass. 357. (20) 306 CONVEYANCING. Cll. VI. tlie ;ii)proachcs, access and common stairway to a tenement, they have been contradicted, and the uciaiil of authority is that where a stairway connected with apartments hired in a tenement house, occupied by several tenants, is rendered unsafe by tem[)orary causes, the hindlord is not liabh", in the absence of a covenant on liis part, to keej) the premises in repair.' And the hiw may be fairly stated that, in the absence of any secret defect, deceit, wai'i'anty, or agree- ment on the part of tiie landlord, lie cannot be held lial)le to the tenant, or an\' one I'ightfuUy occui)ying under him for an injury caused by the i)remis(>s getting out of repair, un- less it be by reason of his own wrongful act or failure to perform a known duty." Nor is it in the power of the tenant to niake repairs at tlie expense of the landlord, even though tlie priMuises have become uniidiabitable for want of repair.'^ And a tenant, unless there is an express agree- ment to th(> contrar}', or the landlord is under a covenant to repair, is obliged to continu(> to pay rent duringthe terra, although the })remises may have l)urned down in the mean- time.* Some qualifications, however, have been })laced upon the above doctrine by statute, and by the decisions of the courts in some of the States.'^ And in Louisiana a 1 IJuuipbrey v. Wait, 2-2 U. S. C. C. r)SO; I'urcell v. English, SG Ind. 34; Cole v. McKey. GG Wis. 500. But see lugwersen v. Kawkiu, 47 N. J. Law, 18; Kawkiu v. Iiigwersen (X. J.), 10 Atl. Rep. -545. 2 Carstairs v. Taylor, L. K. 6 Excli. 222; Duttou v. Gerrish, 9 Cusb. 89; Brewster V. McFremery, 33 Cal. :>41; Krueger v. Ferrant, 29 Minn. 385; Cole v. McKey, GG Wis. 500;.Gillooii v. Koilly (N. J.), 11 Atl. liep- 481. And see Clifford v. Atl. Cotton Mills (Mass.), 15 N. E. Rep. 84. •■^ Casad V. Hughes, 27 Ind. 1^1; .Alumford v. Bi'own, G Cow. 475; Witty V. Matthews, 52 X. Y. 512; Benjamin v. lleeney, 51 111. 492; Elliott V. Allien, 45 X. H. 30; Morris v. Tillson, 81 111. G07; Kline v. Jacobs, G8 Pa. St. 57. •• Watts V. Coffin, 11 Johns. 495; Moffatt v. Smith, 4 X. Y. 12G; Tibbits V. Percy, 24 Barb. 39; J.eavitt v. Fletcher, 10 Allen, 121. 5 Laws of Xew York, 1860, p. 5!i2. 'the rule has been so modified by statute in Xew York as to give the tenant the option of surrendering possession of premises destroyed by fire and declaring his lease at an end. Smith v. Kerr, 108 X. Y. 31. The doctrine acted on by the courts of South Carolina is that, where there is a substantial destruction of the subject-matter out of which rent is reserved in a lease for years, by an AKT. V. USUAL COVENANTS IN LEASES. 307 different rule prevails, where it is held tliat a lessor is bound to keep the premises in a fit condition to be used for the purposes for which they were leased.^ Where the landlord has expressly covenanted to repair the premises, the obligation will, everywhere, be enforced."^ And if he sues for rent, the tenant may recoup any dam- ajjes he may have sustained bv reason of the landlord's breach. Though in case the premises are destroyed by tire, or any casualty, the tenant is bound to continue the pay- ment of rent while the premises are rebuilding; [)rovided, there is no unnecessary or unreasonable delay on the part of the landlord in rebuilding, after he has been notified of the destruction of the premises.-' When the hmdlord cove- nants to repair, it is customary to insert a reservation of a right to enter the [)remises to make such repairs. The fact act of God 01" of public enemies, the tenant may elect to rescind, and on surrendering all benefit thereunder be discharged from payment of rent. Coogau v. Parl^er, 2 S. C. 255. In Georgia, a landlord is generally bound to keep the premises in repair, and may be held liable to third persons for an in jurjr sustained through a defect in repair; but not for injury occasioned by the tenant's negligence or wrongful use of the leased premises. White v. Montgomery, 58 Ga. 204. This rule does not extend to patent defects. Driver v. Maxwell, 56 Ga. 11. And see Stimsous Amer. Stat. § 2061. 1 Coleman v. Haight, 14 La. Ann. 564. ^Prescott V. Otterstatter, 85 Pa. St. 534. When certain repairs are agreed to be done during the tenancy, no time being indicated, a notice to perform from the tenant is requisite to put the landlord in default. Gerzebek v. Lord, 33 X. J. L. 240. When the lessor covenants to make certain repairs, and no time is specified when such repairs are to be made, the law will presume that they are to be made in a reasonable time. Luuu v. Gage, 37 111. 19. In case of failure to repair, the tenant may make them, and charge the expense to the landlord. Hexter v. Knox, 03 X. Y. 561. A covenant b}' lessor to make all necessary repairs iipon the outside of buildings, is broken by his failure to rebuild a stable burned on the premises. Crocker v. Hill, 61 X. H. 345. ^ Loader v. Kemp, 2 Car. & P. 375. Where a lease contains a condi- tion that, in case the demised premises are so damaged by tire as to be untenantable, the rent shall cease until the same shall be put in good re- pair, the fact that the tenant, or a subtenant, continues to occupy a portion of the premise? after a fire, is not, of itself, conclusive evidence that the promises are tenantable. Evidence of the circumstances ^vhich induced the tenant *<> 'emain is proper. Kip v. Merwiu, 52 X. Y. 542. 308 CONVEYANCING. CH. VI. that they are necessary does not, without such a reservation » justify his entry. § 354. A covenant to renew the lease is a covenant whereby the lessor binds himself to make another lease of the premises, at the expiration of the term, either to the lessee or his assigns, for the same or some other period mentioned. The landlord is not bound to renew without a covenant for the purpose, unless by some agreement to that effect he has inducted the tenant to make* ini[)r()vements upon the premises, in which case equity will interfere to prevent the landlord from putting an end to the tenancy.^ A cove- nant to renew does not require that the renewal lease shall contain a similar covenant of renewal.^ Even a covenant to "renew under the same covenants" is satisfied by a re- newal omitting the covenant to renew. "^ Covenants by the landloi'd for continual renewals are not favored, for they tend to create a perjietuity ;* but when they are exi)licit, the weight of authority is in favor of their validity.^ A covenant to renew the lease at the end of tiie term runs with the land, and may be enforced by the assignee of the lease against the irrantee of the reversion.'' Parties stipulating for the renewal of a lease should specify in the covenant the duration of the term, the amount 1 Pilling V. Arniitage, 12 Ves. 78; Robertson v. St. John, 2 Bro Ch. 140. 2 Piggott V. Mason, 1 Paige, 412; Abeel v. Radcliff, 13 Johns. 297. A covenant to renew a lease at a certain rent, does not carry any of the covenants of the old lease with it. Willis v. Astor, 4 Edw. Ch. 594; Ryder v. Jenny. 2 Robt. (N. Y.) TjG. The word "renew" Imports the giving of a new lease like the old one, on the same terms except the re- newal covenant. Cunningham v. Pattee, 99 Mass. 248. And see Creigh- ton V. McKee, 2 Brews. (Pa.) 383. 3 Carr v. Ellison, 20 Wend. 178 ; Tracy v. Albany Exch. Co., 7 X. Y. 472. ■• Morrison v. Rossignol, 5 Cal. 64. Payment of rent when it becomes due, and performance of other covenants of a lease, under which a ten- ant is in possession of leased premises, with the privilege of renewing the lease at the end of the term, are conditions precedent to the exercise of the right of renewal. Behrman v. Barto, 54 Cal. 131 . '• Blackinore v. Boardman. 28 Mo. 420; 4 Kent's Com. 109; Taylor's Landl. ^ I'eu., 7th ed., ij :{3:{; Page v. Esty, 54 Me. 319. « Piggott v. Mason, 1 Paige, 412. ART. V. USUAL COVENANTS IN LEASES. 309 of lont, and all particulars of the agreement. Although a covenant to renew will, })erliai)s, imply the same terms and rent, a covenant to renew u})on such terms as might be agreed upon would be void for uncertainty.^ But a lease containing a provision that, on certain conditions, it shall be renewed for a further term, continues on the tenant's com- ])liancc with the conditions, upon all the covenants and agreements of the former lease without the execution of any new lease.- It may be added here, that in the absence of an agreement the law imposes no obligation on a land- lord to pay the tenant for improvements made during his term.^ Insolvency,* fraud or misrepresentation,^ waste, or a breach of covenant,^ on the part of the covenantee, will gen- erally prevent the entry of a decree for specific performance of a covenant of renewal. And if the tenant is ofuilty of laches in demanding a renewal, equity will not, in general, aid him.'' 1 Rutgers v. Huuter, 6 Johns. Ch. 215; Whitlock v. Duffield, 1 Hoff. Ch. 110. A covenant to renew an uuder-leasein these words: '"And the said lessors do promise to renew said indenture for such further term as their leasehold estate in the premises may be renewed or extended," held to be void for indefiuiteness. Cunningham v. Pattee, 99 Mass. 248. And see Crawford v. Kaslner, 63 How. Pr. 90; McAdoo v. Galium, 86 N. C. 419. 2 House V. Burr, 24 Barb. 525; Ranlet v. Cook, 44 N. H. 512; Brown v. Parsons, 22 Mich. 24. When a lessee has performed the conditions which entitle him to a renewal of the lease, and the landlord refuses to renew, the lessee has a right to elect whether he will proceed at law for damages, or in equity for specific performance. Ai'not v. Alexander, 44 Mo. 25. 3 Kutter V. Smith, 2 Wall. 491. * Buikland v. Hall, 8 Yes. 92. 5 Pendred v. Griffith, 1 Bro. P. C. 314. 6 Hill v. Barclay, IS Ves. 63; Behrman v. Barto, 54 Cal. 131. ^ Where a lease for five years contained a covenant to renew for five years, if it should be desired by the lessee, it was held, that the lessee was bound to declare his election before the expiration of the first lease, and that having neglected to do so until two days afterwards, equity would not interfere for his relief. Kenoud v. Daskam, 34 Conn. 516. Where a lease for two years provided for '"an additional term of one, two, or three years after the expiration of said term of two years, at the election of the 31U CONVEYANCING. CIl. VI. § 355. Covenants against Incumbrances and for further Assurance, are usual and imijortant covenants, especially in long term or perpetual leases; but as these covenants have been treated at some length in a previous chapter, it i^ not considered necessary to add to what has already been said in respect to them.^ § 356. The Usual Covenant on the part of the Lessee are, to |)ay rent, to pay taxes, to insure, not to carry on an offensive trade, not to assign or underlet without leave, and to deliver up the ]ireinises and fixtures in good r(^})air at the end of the term. § 357. A Covenant to Pay Kent is usually inserted in every well drawn lease, besides the reservation of rent con- tained in the })remises. Though, if there is no agreenjent between the parties, the law will, as we have seen, imply a promise on the pai-t of the tenant to pay a fair rent; but this obligation would be incumbent upon him only so long as he continued to hold the premises.'- Jn the absence of an express covenant on the part of the lessee, he may, by assigning his term, discharge himself from all future re- sponsibility, even though the transfer might be to a beggar.^ A\'liile, upon an express covenant the lessee would continue to be bound by his contract, notwithstanding he should as- sign over the lease,*'and the assignee would also become liable in consequence of his priority of estate. For this said party of the second part," it was held that there could be but one election, whether for one, two or three years. Falley v. Giles, 21» Ind. 114. Relief was granted where the tenant of a term for 99 years failed to obtain a renewal within the term, according to the literal wording of the covenant for renewal; but it was stated that gross laches would bar relief. Banks v. llaskie, 45 Md. 207. 1 Ante, §§ 166, 172. - Where a tenant, without written notice or consent of the landlord, abandons the possession of premises verbally leased to him. his liability for rent continues for wluitever period may elapse before the tenancy becomes terminated by written notice or until possession may be ac- cepted by the landlord. IJollins v. Moody, 72 Me. 13.5. 'i Ante, § 350. ■* Wilson V. Gerhardt (Colo.), 1:5 Pae. Kep. 705; Oswald v. Fraten- burgh (Minn.), 81 N. W. Rep. 173. ART. V. L'8UAL COVEXANTS IN LEASES. 311 reason a covenant to pay rent is always desirable for the protection of the landlord. It is a covenant running with the land, bindino; assiii^ns, whether named or not.^ The covenants iini)Iied hv law admit of a more liberal construction than exj)ress covenants, and may be made to conform to good conscience; but when a party, by his own contract, assumes a liability and makes no provision for accidents, he is [)resumed to have taken the risk upon him- self, and will be held to make good his contract, notwith- standing he is deprived of its benefits by inevitable accident. Thus, where a tenant has failed to protect himself by a saving clause in the lease, or unless the lessor has cove- nanted to rebuild and failed to perform his covenant, the tenant is bound to continue to pay rent after the destruc- tion of the tenement by fire or other casualty.- This is the prevailing doctrine in the United States, as well as in Eng- land. The authorities, however, indicate an exception to this rule where the lease is of an upper story or base- ment or apartment in a building, because in such case it is not the intention of the lease to grant any interest in the land further than is necessary for the enjoyment of the rooms so demised, and when these are destroyed there is nothing upon which the demise can operate.^ For the pro- tection of the tenant, therefore, a proviso is usually at- tached to his covenant to pay rent, to the effect that if the premises shall be partially damaged by any casualty, or from any cause whatever, without any fault or neglect 1 Main v. Feathers, 21 Barb. 6-16; Dolph v. White, 12 N. Y. 296; Har- mony Lodge V. White, 30 Ohio St. 569. 2 Moffatt V. Smith, 4 X. Y. 126; Fowler v. Payne, 49 Miss. 32; Leavitt V. Fletcher, 10 Allen, 121; Coy v. Downie. 14 Fla. 544; Witty v. Mat- thews, 52 X. Y. 512 ; Helburu v. Mofford, 7 Bush (Ky.) , 169. And equity will not relieve him from the performance thereof. Robinson v. L'Engle, 13 Fla. 4S2. 3 McMilleu V. Solomon, 42 Ala. 356; Graves v. Berdan, 26 N. Y. 498; Winters v. Cornish, 5 Ohio, 477; Stockwell v. Hunter. 11 Mete. 448; Ainsworth v. Eitt, 38 Cal.S9; Shawmut Xat.Bank v. Boston, 118 Mass. 128; Whitaker v. Hawley, 25 Kan. 674; Harrington v. Watson, 11 Oreg. 143; s. c, 50 Amer. Rep. 465. For other exceptions to the above rule, see supra, § 353. 312 CONVEYANCING. Oil. VI. upon lii> jiart, the same sliall ho ropairod as speedily as possible, at the expense of tlir LuKUord; and tliat in case the damage shall he so I'xtensive as to render the premises untenantahh^ the rent shall cease until such time as the same shall he put in complete repair; hut in case'of the total destruction of bhe premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth the lease shall, at the option of the tenant, cease and come to an end. A provision, simply, that the rent should cease in case the premises became uninhabitable by " fire or other casualty," was held not to extend to a case where the building became untenanta- ble in consequence of its being taken down under an ordi- nance of the city for widening the streets.^ It may be stated as a general proi)osition, that after the relation of landlord and tenant has been once established, the tenant can only resist a demand for rent by showing that he was evicted, or was otherwise legally entitled to quit, under the terms of his lease, or that the landlord has accepted an- other person as tenant in his stead.- If the tenant at any time be deprived of the premises by the agency or inter- ference of the landlord, the obligation to pay rent ceases, because the enjoyment of the ))remises is the consideration 1 ]Mills V. Baehr's Ex., 24 Wend. 254. And see Kip v. Merwin, 2 X. Y. Superior Court, 531. 2 Cleves V. Willoughby, 7 Hill, 83; Taylor's Landl. & Ten., 7th ed., § 372. Covenants on the part of tbe landlord to make repairs and addi- tions are subordinate to those of the tenant to pay rent, and do not de- feat the rent in toto, unless the tenement is worthless for the purpose for which it was rented without such additions and improvements. Pres- cott V. Otterstatter, 85 Pa. St. 534. If one lets a house fraudulently con- cealing from the tenant his knowledge of the dangerous condition of the drains and the tenant is compelled to leave the house, he is not bound to pay rent. Crump v. Worrell, 12 Phila. 249. A lessee be- fore taking the lease proposed to institute an examination concerning drainage and plumbing but was deterred by the lessor's false and fraud- ulent representations that these matters were all right : Held, that when sued for rent the lessee could defend by showing payment for plumbing, etc., exceeding the rent. Wolfe v. Arrott, 10!) Pa. St. 473. And see Stubbletield v. Soule, 21 111. App. 154. ART. V. USUAL COVENANTS IN LEASES. 313 from which the obligation derives its force. ^ Or, if the land be recovered by a third person under a paramount title, the tenant is discharo-ed from his obligation to pay rent, after he has been evicted. And if the tenant is evicted from a part of the i:)remises only, by a stranger, such evic- tion operates as a discharge of a proportionate part of the rent.- But if the lessor wrongfully deprives the tenant of any part of the demised ))remises, it discharges him fiom payment of the whole rent, until he is restored to the enjoyment of the entire premises.^ Tiiough, where the landlord does acts merely tending to diminish the beneficial enjo>aiient of the premises, and the tenant continues to occupy them, he is bound to pay rent;^ and where there has been an eviction, the tenant must pay the rent accruing up to the time he actuallj^ quit the premises.^ In order to constitute an eviction, it is not necessai'V that the tenant be actually expelled from the i)remises. Many acts done by the landlord, tending to diminish the enjoyment of the prem- ises, have been held sufficient to authorize the tenant to quit the possession, and to exonerate him from the payment of rent; such, for instance, as the erection of a nuisance, so near the premises as to deprive the tenant of the use of them, or letting adjoining premises to be occupied as a place of prostitution, and the like.^ But to constitute an eviction, the acts complained of must proceed from the landlord, and 1 Pendleton v. Dyett, 4 Cow. 581 ; Tio v. Vance, 11 La. 200; Halligau v. Wade, 21 111. 470. 2 Carter v. Burr, 39 Barb. 59; Lansing v. Van Alstyne, 2 Wend. 561. 2 Fitchburg Co. v. Melven, 15 Mass. 268; Day v. Watson, 8 Mich. 535; Bennet V. Bittle, 4 Rawle, 339; Eldred v. Leahy, 31 Wis. 546; Hayner V. Smith, 63 111. 430. * Edgerton v. Page, 20 N. Y. 281 ; Collins v. Karatopsky, 36 Ark. 316. 5 Fitchburg Co. v. Melven, 15 Mass. 268; Kessler v. McConachy, 1 Rawle, 435. 6 Cohen v. Dupont, 1 Sandf. 260; Pendleton v. Dyett, 4 Cow. 581. But see De Witt v. Pierson, 112 Mass. 8. An eviction by the landlord is not a mere trespass, but something of a grave and permanent character done by him with the intention of depriving the tenant of the leased premises. Rice v. Dudley, 65 Ala. 68. 314 CONVEYANCING. CH. VI, not fiom a stnino;er to the lease. ^ "Where a lease under seal fixes a certain amount ot" rent to be paid each month, a parol agreement changing the amount of rent to be paid for the unex))ired term, and leaving the lease in other respects unchanged and in force, is not binding upon the lessor; and he will, notwithstanding such i)arol agreement, be entitled to recover the amount of rent called for b\' the lease.- § 358. The Lessee soiuetinies Covenauts to Pay Taxes and other assessments charged upon the i)remises. AVhen this is done, it is ordinarily taken into consideration in fix- ing the amount of rent. For, in the absence of an express agreement, as between the landlord and tenant of a term of years, the landlord is })ound to pay the taxes. ^ Tliough, as a general rule, it is the duty of the tenant in the first in- stance to pay all taxes and assessments imposed upon the premises; and he may, for his own protection, do so, when demanded, and charge the same to account of rent, unless he has covenanted to pay such taxes or assessments in ad- dition to the rent.'* And if the sum paid by the tenant ex- ceeds the amount of rent due, he may recover the excess of the landlord as money [)ai(l to his use."' Jf the lessee covenants to [)av the taxes assessed upon the leased prem- ises, and fails to do so, the lessor can recover the amount assessed, although he himself may not have paid such tax.^ In respect to what would be included in the tenant's obliga- tion to pay taxes, it has been held that a stipulation to pay all taxes and keep the sidewalks in repair, does not extend to the payment of the expenses of paving the street in front of the leased premises.' But, on the other hand, it has been held that a lessee's covenant to })ay "all taxes, rates,. 1 De Witt V. Pierson, 112 Mass. 8. - Barnett v. Barnes, 73 111. ■21(). •■^ Prettyniau V. Walston, 34 III. 191. In Pennsylvania and .Maryland the tenant is liable for taxes. Brightley's Purd. Dig., Landlord, Chs. 2 and 3; Md. Rev. Code 1878, Art. 11., § 65. 4 Hunt V. Amidon, I Hill, 340. ^ Taylor v. Zamira, (> Taunt. 524. fi Rector, etc. v. Iliggins, 48 X. Y. 532. 7 Twycross v. Fitchburg R. R. Co., 10 Gray, 293. ART. V. USUAL COVENANTS IN LEASES. 315 charges, and assessments, which shall or nui}' from time to time, and at any time during the term he levied, assessed, or made on the demised premises, or in resi)ect of the same for any cause whatever," binds him to pay a betterment assessed thereon, although the lease was made many years before the passage of any betterment laws.^ And where, under a similar covenant, an improvement was made which took away a part of the leasehold premises, it was held that the lessee was chargeable with the full amount of the assess- ment, upon the whole interest of the lessor in such prem- ises.- And it has been held that a covenant to pay "all taxes general and spechiV pj^inia facie includes an assess- ment levied on the property to pay for the reconstruction of an adjoining street.^ § 359. A Covenant to Insure the Premises in the joint names of the lessor and of the lessee, and, in case of tire, to lay out the insurance money in rebuilding or repairing the premises, is sometimes entered into on the part of the lessee. The covenant, when in this form, becomes a real covenant, running with the land to assignees, and, incase of fire, the landlord may require the insurance money to be applied in reinstating the premises ; but a bare covenant to insure, which does not provide for the application of the insurance money to rebuilding the premises, is merely a personal covenant, extending only to the covenantor and his personal representatives, and, in general, gives the landlord 1 Walker v. Whittemore,112 Mass. 187 ; Simonds v. Turner, 120 Mass. 328. But these cases seem to have been decided upon the peculiarly broad and comprehensive wording of the covenant. It has been repeatedly held that an assessment, made under an act not in existence at the time of the execution of a lease, is not included in a tenant's covenant to pay taxes and assessments. See Love v. Howard, G R. I. IIG; Oswald v. Gilfert, 11 .Johns. 443; Bleecker v. Ballon, 3 Wend. 203. Where a lessee covenants to pay all assessments, he in fact agrees to pay such assess- ments only as are valid, or such as caa be legally enforced against the lessor or against the property. Clark v. Coolidge, 8 Kan. 180. - Aster V. Miller, 2 Paige, G8. 3 Thomas V, Hooker Colville Pump Co., 22 Mo. App. 8. 3l«) CONVEYANCING. CH. VI. no right to receive the insurance nuHiey from tlic insurer.^ In some of the States, however, it is required by statute that tlie insurance money shall be so applied, in which case the effect is the same as if the provision were contained in the covenant.- A covenant to insure, and to keep a given sum of insurance upon the property, is broken if the prem- ises are left uninsured for any time, however short. '^ And where the tenant is required to keep the building insured in the name of the landlord, an insurance in his own name is no compliance with the covenant.^ § 3(iU. A Coveuant not to Use the Premises for Pur- poses of Trade, is usually inserted in leases of i)rivate dwell- ings in towns and cities. Sometimes the covenant is not to carry on a particular trade, or any trade that shall be of- fensive to the nei years; Code 1870, p. 459. In some of the States, viz., Ohio, New Hampshire, Missouri, Massachusetts, Maine, Vermont and Indiana, all leases not in writing have the force and effect of estates at will only. Taylor's Laudl. c<; Ten., 7th ed., § 29; Rev. Stats. Mo. 1879, § 2509. 2 Den V. Johnson, 15 N. J. L. 110; Allen v. Jaquish, 21 Wend. 635; Olmstead v. Niles, 7 N. H. 520. 3 In Massachusetts and New Hampshire a lease for more than seven years must be l)y deed. Gen. Stats. Mass., ch. 89; Gen. Stats. New Hampshire 1867, p. 252, § 4. In Minnesota, leases for a term exceeding one year must be by deed or convejance in writing. Stats, ^tiun. 1873, Vol. 1, p. 692, § 10. So, also, in Vermont, Gen. Stats. 1873, p. 448, § 7. In Virgmia, if for a teim of more than live years, it must be by deed. Code of Virginia 1873, p. 887, § 1. ■♦ Rev. Stats. Maine 1871, p. 560, § 8; Gen. Stats. Vermont, p. 448, § 7; Taylor's Landl. it Ten., 7th ed., § 171; Brohawn v. Van Ness, 1 Crauch C. C. 306; Locke v. Coleman, 4 T. B. Mon. 315; Richardson v. Bates, 8 Ohio St. 260. « Lake v. Campbell, 18 111. 100; Town of Lemington v. Stevens, 48 Vt. 38; Johnson V. Pha-nix Mut. Life Ins. Co., 40 Conn. 92; Kittle v. St. John, lONeb. 605. An unacknowledged and unrecorded lease is valid as to one who has actual notice. Wiht^-lm v. Mertz, 4 Greene (Iowa), 54; Tuttlev. Jackson, Wend. 213; State of Connecticut v. Bradish,14 Mass. 296; Porter v. Cole, 4 Greenl. 20; Colby v. Kenniston,4 N. II. 202; Jack- son V. Winslow, 9 Cow. 13. ART. I. EXECUTION OF LEASES. 323 § 365. TI*e Execution of a Lease consists in the signa- tures, and if it be by deed, the seals of the parties and the delivery of the instrument.^ In sonic of the States one, and in others two witnesses are required, and in several of the States, as we have seen, leases exceeding a certain num- ber of years, in order to secure the })riority to which they may be entitled, must be acknowledged, or proved and re- corded in the same manner as other deeds of real estate are required to be recorded. Each of these topics has been discussed under separate heads, and very little need be added to what has already been said upon either subject, as the same general principles relative to execution and de- livery apply alike to all deeds, whether they convey a mere chattel interest or the fee. In respect to the signature of a firm, it has recently been held in Massachusetts that an entry by two partners, under a lease to which one has signed the name of both, is a ratification thereof by the other.^ In the absence of an express statute, no attesting witness is necessary to the validity of a deed.^ And, as a general rule, recording acts do not invalidate deeds which have not been recorded, as between the parties,* But in Pennsyl- vania it was held that a lease of a married woman's estate, for any term, to be valid, must be acknowledged by her, separate from her husband. ^ § 366. When Leases are Executed by an Agent, caution must be observed in three things, namely : The authority must be sufiicient, the agent must pursue his authority strictly, and must grant in the name of his principal.*^ The 1 See Kelsey v. Tourtelotte, 59 Pa. St. 1S4. 2 Holbrook v. Chainbeiliu, IIG Mass. 155. 3 4 Kent's Com. 449. ■* Ante, §§ 249, 279. In Tennessee, a lease or an assignment of a lease for more than a year is valid, and passes the interest, although not proved and registered. Thomas v. Blakemore, 5 Yerg. 113. A lease is good as against the lessor, although not acknowledged, and if the lessee enters under it and conforms to its terms, the rights of the parties are to be governed thereby. Town of Lemington v. Stevens, 48 Vt. 38. 5 Miller v. Harbert, 6 Phil. 531. « Shep. Touch. 270. 324 CONVEYANCING. ClI. VII. autlioiily of :ui aofut to contract for a loa.sc need not be in writing. To constitute a v;ili(l executory agreement, it is only necessary tiiat the agent be lawfully authorized to con- tract,^ But, to execute a lease under sc:d, the authority of the agent must, in general, be under seal.- Though, in some of the States, it seems th;it the appointment of an agent to execute a lease may be by |):ir()I,'' while in others the En- glish rule has been copied and ad()i)led, which requires the writing sought to be availed of as a lease to be " signed by the })arties, etc., making the same, or their agents thereunto lawfully authorized l)v writing." Under these statute's, a question has arisen as to the validity of a lease, signed by an agent in the presence of the lessor, and by his direction orally given. Some courts, by a strict construction of the statute, regard the authority as insufficient,^ while in other States such an execution of a lease would be valid.' A lease under seal, executed by an agent in his individual name, and which does notpurpoil to be executed on behalf of the ))rin- cipal, is not binding upon the latter, although the fact of the agency is recited therein, and although it appears by extrin- sic evidence that the lessor or lessee, as the case may be, acted as agent.^ And, on the other hand, a deed signed by the attorney in the name and as the personal act of the ))rin- ci[)al, without anything to indicate that it was done by the agent, would not bind the principal." 1 McComb V. Wright, 4 Johns. Ch. 667. A town's authority to execute a lease is shoAvn prima facie, by its corporate seal aflixed to the lease by the proper utlicer. Crescent City Wharf Co. v. Simpson (Cal.), ID Pac. Rep. 426; Ante, § 7. 2 Ante, § 230. 3 See 1 Washb. on Real Trop., 4th ed., p. 448, and note. * Wallace v. McCullough, 1 Ricli. Eq. (S. C.) 427. s Gardner v. Gardner, 5 Cush. 483. fi Kiersted v. Orange, etc. R. R. Co., 09 X. Y.343; Seyfert v. Bean, 83 Pa. St. 450. ' Wood V. Goodridge, 6 Cush. 117. The doctrine of this case, though doubted as regards the execution by an agent of an ordinary writing, seems to be good botli on autliority and ])rinciple, as far as sealed in- struments are concerned. See ante. §§ 24.j, 246, where this question is fully discussed as to deed. ART. 1. ASSIGNMENT OF A LKASE. 325 § 367. Leases are usually by Iiidentiive, executed under the liand and seal of the respective parties, in which case, botli parties arc deemed originals.^ The statutes of some of the States have been construed to require both parties to sign, in order to be bound by the contract. ^ But in other States, as we have seen, it has been held that a party to an indenture will become liable upon its covenants by accept- ing it, although he may not sign and seal the deed.^ It may be added that an indenture must be delivered to both parties.^ ARTICLE II. OF THE ASSIGNMENT OF A LEASE. SECTION. 369. Assigumeut defined. 370. Who may make, aud what will constitute an assignment. 371. An assignment is either in fact or in law. 372. Assignments in law. 373. Of an assignment in fact. 374. The proper covenants to be inserted in the assignment of a lease. 375. The effect of an assignment of a lease. 376. Continued — rights and liabilities of an assignee. 377. Of the assignee of the reversion. ^ Lewis V. Payn, 8 Cowen, 71. 2 Under the North Carolina Statute of Frauds, where the plaintiff pro- posed to lease certain real estate, upon certain terms, to defendant for ten years, which proposition w^as adopted and received by its board of councilmen, aud entered upon their minutes; and thereafter a lease ex- ecuted by plaintiff was tendered to and accepted by said board, but was never actually signed on the part of defendants, held^ that the lease, or contract of lease itself must be signed by the party to be charged ; that signing a memorandum of an agreement for a lease is not enough, and that the defendant was not bound by the contract. Wade v. Newbern, 77N. C. 460. ^ Ante, § 61. Where a corporation to whom a lease was made without any executed acceptance took possession of the premises and used them, it was held that the acceptance of possession was equivalent to an exe- cution of the instrument in proper form. Fitton v. Hamilton City, 6 Nev. 196. ^ A lease was prepared between the lessor and the lessee aud his surety. 326 CONVEYANCING, CH. VII. § 3(59. Assigiimoiit Dofinod. — An assignment of a lease is the transfer of the entire interest held under it, and whether a conve^'ance by a lessee is an assignment or an under-lease, depends upon that fact. The essential nature of the conveyance is not aifected by the })articular words employed; but the test is whether the grant leaves a re- versionar\' interest in the irnmlor, in which case it is a sut)- lease, or operates as a transfer of his entire term, which constitutes an assignment.^ Thus, a transfer bv a lessee of the remainder of his unexpired term, though it employs words ordinarily u>vt.\ in a demise, and conl;iins a reserva- tion of rent and the right of re-entrv on covenant broken, is not an under-letting or sublease, but is considered in law as an assii;nment of his wliole interest, as there re- mains in him no reversion of the estate; it ])eing one of the essentials of a lease that it shall contain a reversion in favor of th{> grantor.- Yet it has l)een held that an under-lease reserving the right to re-enter is a sublease, and that the lessee may re-enter for breach of the condition, although there is no reversion remaining in him.^ And this view a])- The lessee signed, took away and brought to the lessor the lease, with the surety's name signed thereto, but it was not then signed by the lessor. The lease was signed some days after by the lessor, l)ut none of the other parties were present, and it was not delivered to tlie lessee afterwards. The lessee did not take possession of the premises. The court below charged that the lease was sufficiently proved, and was de- livered to the lessee. Ifeld, that the charge was erroneous. Kelsey v. Tourtelotte, r)9 Pa. St. 184. 1 Constantine v. Wake, 1 Sweeny (N". Y.), 239; Sanders v. Partridge, 108 Mass. 558; Ilicks v. Downing, 1 Ld. Kaym. 90. It was originally held, without any qualification, that an assignment of a lease is a viola- tion of a stii)ulation not to underlet. Greenaway v. Adams, 12 Ves.395. But the doctrine of that case has been criticised and rejected. Field v. Mills. :« X. J. L. 255. - Smiley v. Van Winkle, G Cal. 005; Stewart v. Long Island R. K. Co., 102 N. Y. 001. An agreement whereby a lessee sells to another the right to use and possess real estate as long as the lessee could, the rent to be paid to the latter, and he to pay the lessor, is, in legal effect, an assign- ment of the lease. Indianapolis Manufacturing Union v. C. C. C. & I. B. R. Co., 45 Ind. 281. 3 People V. Robertson, 39 Barb. 9; Linden v. IIep])uru, 3 Sandf. G68; Collins v. Hasbrouck, 56 N. Y. 157; Dunlap v. Bullard, 131 Mass. 161. ART. II. ASSIGNMENT OF A LEASE. 327 pears to be sustained by the current of authority, especially if an increased rent is reserved, or the terms of the instru- ment differ in any essential particular from the original lease. ^ And if any portion of the time is reserved to the lessee, even thoujih it be but a dav, it is a sublease, and not an assignment. '^ But if the lessee transfers to another, either with or without conditions, all of his interest in a portion of the demised premises, it is not a sublease, but an assignment ^ro tanto; and this, although the instrument is in form a lease. ^ § o7(). Who may 3Iake, aud what will Constitute an Assignment. — Either of the parties to a lease may assign his interest without the consent of the other, unless re- stricted by some covenant or condition contained therein.* A lessee may also underlet for any less number of years than he himself holds.^ The right of alienation is incident to the estate, and exists without the use of the word "assigns."^ The policy of law favors the free alienation of property ; hence, as we have seen, a restriction in a lease not to underlet is construed not to prevent an assign- ment, nor vice versa.' But although a lessee may assign his rights or interest in the premises, without the consent of his landlord, he cannot, as will be further noticed, thereby discharcje his obliijations, as that would unreasonablv de- prive the landlord of the benefit of a contract made with a particular tenant to whose care and responsibility he trusted 1 Collamer v. Kelley, 12 Iowa, 319; Martin v. O'Conner, 43 Barb. 514; Townsend v. Read, 15 Abb. (X. Y.) X. Cas. 285. A transfer by a lessee of the entire term, reserving rent at a different rate and payable at a different time, with a provision for re-entry, is a sublease, and not an assignment. Collins v. Hasbrouck, 56 X. Y. 157. '^ Davis V. Morris, 36 X. Y. 569; Crusoe v. Bugby, 3 Wils. 234; Post v. Kearney. 2 N. Y. 394. 3 Woodhull V. Eosenthal, 61 N. Y. 382; Stewart v. Long Island E. E. Co., 102 X. Y. 601. ■•Eobinson v. Perry, 21 Ga. 183; Cooney v. Hayes, 40 Yt.478. 5 Cromelin v. Thiess, 31 Ala. 412. But held otherwise under Georgia Kevised Code, § 2253. McBurney v. Mclntyre, 38 Ga. 261. « Eobinsou v. Perry, 21 Ga. 183; Xave v. Berry, 22 Ala. 382. 7 Ante, § 361. 328 CONVEYANCIN( . CH. VII. when he granted the lease. A giant by a lessee of his en- tire estate will operate as an assignment whether it be in form a lease, an assignment or a conveyance in fee.^ AVliere a lessee makes a general assignment of all his property "of every sort and description," for the benefit of his creditors, it is sufficiently comprehensive to pass to the trustees the grantor's interest in the term;^ and, if ac- cepted, renders the assignees liable for the payment of rent aiul the })oi-f()rniance of the covenants.^ But the trustees are entitled to a reasonable time to ascertain whether the leasehold property of the debtor can be made available for the benefit of the creditors; and until some specific act has been done, signifying their intention to ac- cept the lease, the term remains m the bankrupt.* In New York, a mortgagee of a term, who has never taken posses- sion, is not an assignee of the whole term, or liable for rent in arrears; the mortgage being but a security and the leiral estate still remainins: in the mortgagor.^ But in those States in which the common-law doctrine of mortgage ex- ists, a contrary rule prevails; as the mortgagee is held to be seized of the legal estate, he is liable as assignee, whether in possession or not.^ The better opinion, how- 1 2 Prest. Conv. 124; Sanders v. Partridge, lOS Mass. 558; Sands v. Hughes, OS N. Y. 293. 2 Horvvitz V. Davis, IG Md. 3i:5. 3 Dorrance v. Jones, 27 Ala. 630. 4 Briggs V. Sowry, 8 Mees. & W. 729. 5 Tallinan V. Bresler, C)5 Barb. 309; Eaton v. Jaques, 2 Doug. 45G; AValker v. Reeves, 2 Doug. 4G1. "McMurphy V. Minot, 4X. H 251. The latter lias been regarded as the English doctrine since the decision of Williams v. Bosanquet, 3 Moore, 500, in which the case of Eaton v. Jaques, supra, was overruled. The courts of this country, however, generally incline toward the rule laid down in Eaton V. Jaques. See Jackson v. "VVillard, 4 Johns. 41; White V. Bond, IG Mass. 400; Cusliiiigv. Ilurd. 4 Pick. 253. In the case of Astor V. Hoyt, 5 Wend. G03, decided after the case of Williams v. Bosanquet, and ir which the latter case was considered and conunented upon, the Supreme Court of New York declared the law to be "that a mortgagee of a term, not in possession, cannot be considered as an as- signee, but if he takes possession of the mortgaged premises, he has ART. II. ASSIGNMENT OF A LEASE. 329 ever, seems to be, that the mortgao^ee nuist gain possession of the mortgaged premises before he can compel the tenant to pay him the rcnt.^ A general grant of the reversion passes all leases to which the property is subject, including the rents reserved, as in- cident to the o;rant.^ And it matters not whether the con- veyance be voluntary or by the force or operation of law.^ But the rent may be reserved by a special stipulation.* And, on the other hand, in some of the States a lease may be as- signed by the lessor, so as to give the assignee the right to recover the reserved rent in his own name, without a sale or transfer of the reversionary interest.^ But at common law such an instrument was not assignable ; and in many of the States, a transfer of this character passes only an equi- table title to the assignee, which cannot be recognized by and enforced in a court of law.*^ the estate aim onere.'^ Calvert v. Bradley, 16 How. 593; Stelle v. Car- roll, 12 Pet. 201 ; Van Ness v. Hyatt, 13 Pet. 294. 1 1 Washb. on Keal Prop., 4th ed., 509; Kimball v. Lockwood, 6 R. I. 138. 2 Taylor's Landl. & Ten., 7th ed., § 426; Kornegay v. Collier, 65 N. C. 69; Dixon v. Niccolls, 39 HI. 384. 3 Kornegay v. Collier, 65 N. C. 69; Bnllard v. Johnson, Id. 436; Rogers V. McKenzie, Id. 218; Franlvlin v. Palmer, 50 111. 202. •» Crosby v. Loop, 13 111. G25; Dixon v. Mccols, 39 111. 372; Watson v. Hnnkins, 13 Iowa, 547; Leonard v. Burgess, 16 Wis. 41. But see, contra, Newboldv. Comfort, 2 Clark (Pa.), 331. Qucere, Whether, if the assign- ment of the lease occurs before the making of a mortgage on the prem- ises by the lessor, the general principle would app-y, there being no reservation of the rent in the mortgage and no notice of the lease to the mortgagee. Kiml)all v. Pike, 18 N. H. 419. 5 Watson V. Hnnkins, 13 Iowa, 547; Demarest v. Willard, 8 Cowen, 206; Mussey v. Holt, 24 N. H. 248; Willard v. Tillman, 2 Hill, 274; Pfaff V. Golden, 126 Mass. 402. The court in this la' ter case follow the rule laid down in Demarest v. Willard. 8 Cowen, 206, stating, however, that they can see "no principle upon which the assignee of the rent, with- out the reversion, can sue in his own name. There is no privity of es- tate, and * * * no privity of contract between him and the lessee. Still, it seems to be settled that such assignee may sue in his own name for rent accruing after the assignment." « Chapman V. McGrew, 20 111. 101 ; Allen v. Wooley, 1 Blackf. 148; Hopkins v. Organ, 15 Ind. 188; Dixon v. Buell, 21 111. 203. 330 CONVEYANCING. CH. Vll. § 371. An Assigiimont is cither in Fact or in Law. — The former einbraces all transfers made by the voluntar}'' act of the parties; the latter, those cases in which the es- tate, upon some particular event, is transferred by mere operation of law.^ § 872. Assignments in Law. — At common law marriage was an assijrnment in law to the husband of the wife's chat- tels real; and he might sell or mortgage the same without her concurrence, and they were also liable to be taken in execution to satisfy his debts. ^ But if the wife survived the husband, an assignment, made by iiim m order to bind her, must have been made upon a valuable consideration.-^ And if he made no disposition of her terms for years dur- ing his life-time, he could not devise them by his will, since, after his death, the wife took the same in her own right; and yet, if he survived his wife, he took them all by survivorship.* The common law, however, has been modi- fied l)y a ixreat variety of statutory enactments in the differ- ent States, wdiich si)ace forbids our mentioning further than to refer the reader to the local statutes for the law of any State upon the subject. A sale of a term of years under execution also takes effect as an assignment in law ; the purchaser becomes an assignee, and as such is liable upon the covenants contained in the lease, while the lessee continues liable on his contract, not- withstanding: his lease mav have been taken from him with- out his consent.^ A devisee is also an assignee, and liable upon all covenants that run with the land.*" So, when a man dies possessed of a term of years, unless he has dis- posed of it by will, the law vests it in his })ersonal repre- J Taylor^s Landl. & Ten., 7tli ed., § 427. 2 Co. Litt. 4G, b; Id. 351, «. 3 A mere voluntary assignment would not bind her. Schuyler v. Hoyle, 5 Johns. Ch. 19G. ■• Co. Litt. 351, b. fi Auriol V. Mills, 4 Term. K. 98; McNeil v. Ames, 120 Mass. 481; Lan- cashire V. Mason, 75 N. C. 455. 6 Holford V. Hatch, 1 Doug. 183. ART. II. ASSIGNMENT OF A LEASE. 331 sentatives. An executor or administrator takes as assignee, by virtue of iiis office, without being named in the lease. ^ The term passes to the administrator for the benefit of the estate, and he cannot surrender it, and take a new lease to himself. - § 373. An Assi^iment in Fact of a leasehold interest and lights, arising under a written lease, is requii'cd by the Statute of Frauds to be by deed or note in writing, signed by the party or his agent thereto lawfully authorized in writins:.^ And in some of the States, an assignment of a lease which is under seal, to be effectual must also be under seal.'* But in others it is not necessary that the assignment be under seal, although the lease to be transferred is a sealed instrument.'^ It has been held that an assignment in blank, made by one who affixes his seal on the back of his lease, and which is afterwards filled up by a third person, is neither a deed nor a note in writing within the statute, and is wholly void.*^ But no particular mode of expression is necessary to make an assignment, provided the intention of the parties sufficiently appears. The usual and proper words are, " grant," " assign " and " set over." No con- sideration need be expressed in the assignment, as the lia- bility assumed by the assignee is a sufficient consideration.''' 1 Sbep. Touch. 4GS; Gutzweiler's Admr. v. Lackmann, 39 Mo. 91. 2 Keating v. Condon, 68 Pa. St. 75. 3 Bedford v. Teihune, 30 X. Y. 459. But see Waller v. Thomas, 42 How. Pr. 337, where members of au association were held liable as as- signees from the association, they having entered upon and used the premises and made payments to the landlord. ^ Brewer V. Dyer, 7 Cush. 338; Bridgham v. Tileston, 5 Allen, 371; Wood V. Partridge, 11 Mass. 491. See Mayhew v. Hardesty, 8 Md. 479. Where the assignee of a lease under seal assigns it by a writing not under seal, and not recorded, but continues to collect the rents from the subtenants, and his assignee does not enter, the original assignee re- mains liable for rent. Sanders v. Partridge, 108 Mass. 556. « Holliday v. Marshall, 7 Johns. 211 ; Hess v. Fox, 10 Wend, 436; Bot- ting v. Martin, 1 Campb. 318; Esty v. Baker, 48 Me. 495. In Ohio, be- fore the Act of 1824, an assignment of a lease attested by one witness was good. Bisbee v. Hall. 3 Ohio, 449. ^ Jackson v. Titus, 2 Johns. 430. Barker v. Keate, 1 Mod. 263. 332 CONVEYANCING. CH. Vll. It iii:i\ 1)0 .'ulded that, to vo^t title in tln' assigneo, there- mu!^t be an absolute delivery of the assiunintMit : and if it be delivered to a third person, to be delivered to the assignee on payment of the [xirchase-inoney, no title passes b^ a de- livery without payment.^ § 374. Tlic Proper Covenants to bo Inserted in the Assij-nnient of a Lease, are stated by Mr. Taylor to be: " on tlie ))art of the assignor, that the indenture of the lease is good in law; tliat he has power to assign;^ that he will save the a>^sij;nee harmless from former grants and in- cumbrances, and for quiet enjoyment.'^ On the part of an assignee, they are, that he will pa}' rent, and perform the services and covenants mentioned in the lease, or save the assignor harmless therefrom."* Though any stipulations or agreements between the i)arlies, which are pertinent to the subject, may be introduced into the assignment by way of covenants ; provided, of course, that the assignment is- by deed. § 375. The Effect of an Assignment of Lease. — A lessee, while he continues to occupy the premises, holds both by privity of estate and of contract. By privity of estate is meant identity of title, or the relation which sub- sists between [)arties holding under the same title, the one subordinate to the other. Privity of contract is the rela- tion which subsists between two contracting parties. By an assignment the lessee divests himself of his privity of estate, which passes with the estate to the assignee, who then holds m |)rivity of estate with the original landlord. But though a lessee may thus destro}' his privity of estate, the privity of contract still remains, the effect of which is,^ that an assignment, made with the assent of the lessor, dis- charges the obligations of the lessee arisinj^from privitv of estate, but not those arising from })rivity of contract, such iPeabody v. Fenton, 3 Barb. Ch.-I.")!. - Tliis lias been held to be impliL'd. Bensel v. Gray, G X. Y. Superior Ct. 147. ■'■ But see iv^nickerbacker v. Killinore,9 Johns. 106. * Taylor's Laudl. & Ten., 7th ed., § 431. ART. II. ASSIGNMENT OF A LEASE. 333 as the express stipulations of a lease. ^ It is a general rule that a termor cannot transfer the privity of estate between himself and his landlord without the hitter's consent : and therefore a lessee cannot discharge himself from implied •covenants without such assent; but an assent may be in- ferred from the lessor's receiving rent from the assignee, or otherwise recognizing him as his tenant. Thus, it has been held that an action of debt for rent will not lie against a lessee who has assigned his term, after accei)tance of rent from the assignee.- But a tenant is bound by his express covenant to pay rent, though he has assigned the lease with his landlord's assent, and the assignee is accepted as tenant and rent received from him, unless the landlord has accepted the surrender of the former and released him. -^ § 37(5. Continued. — Rights and Liabilities of an As- signee. — An assignee takes all the interest of the lessee in the premises, whether it be in possession or expectancy.* 1 Ghegan V. Young, 23 Pa. St. IS; Gordon v. George, 12 Ind. 40S; Harmony Lodge v. White, 30 Ohio St. 569; Greenleaf v. Allen, 127 Mass, 248; Salisbury V. Schuley, Q6 Cal. 223; AVilson v. Gerhardt (Col.), 13 Pac. Eep. 705; Oswald v. Fratenburgh (Minn.), 31 N. W. Rep. 173. 2 Fletcher v. McFarlane, 12 Mass. 43; Stimmel v. Waters, 2 Bush, 282; Carter V. Hammett, IS Barb. 60S; Harmony Lodge v. White, 30 Ohio St. 569. 3 Frank v. Maguire, 42 Pa. St. 77; Wall v. Hinds, 4 Gray, 256; Walton V. Cronly, 14 Wend. 63; Garner v. Byard, 23 Ga. 289; Bailey v. Wells, 8 Wis. 141; Barhydt v. Burgess, 46 Iowa, 476; Pfaff v. Golden, 126 Mass. 402; Hunt v. Gardner, 39 X. J. L. 531; Taylor v. DeBus. 31 Ohio St. 46S. Where a tenant, under a lease containing no restrictions upon subletting, sublets a portion of the premises, and subsequently , without the knowledge or assent of the subtenant, surrenders his term to the owners, such surrender and the consequent merger of the greater and lesser interest, terminate the original lease and the term created thereby as between the parties to the lease and the surrender. But the interests and the terms of the sub-tenant continue as if no surrender had been made. The surrenderees and owners in fee become his immediate land- lords, with only such rights as his lessor would have had ro the pos- session of the premises before the expiration of the term. Eten v. Luyster, 60 X. Y. 252; Krider v. Ramsay, 79 N. C. 354. * Potts y. Delaware Water Power Co., 9 X. J. Eq. 592. An assignment conveys the tenant's right to compensation for new erections on the land, covenanted by the lease to be paid for by the lessor. Hunt v. Dan 334 CONVEYANCING. CH. VII. but lie t:ikes it subject to :ill the equities with which it is charged in the hands of theoriginal party, and must, there- fore, perform all covenants which are annexed to the estate, so h)n B. &. C. 589. " Mason v. Sniitli, i:?l Mass. 510. * Ante, § 347; Norman v. Wells, 17 Wend. 136; Co. Litt. 215 h. « See Ante, § 348. f"' Babcock v. Scoville, 50 Til. 461 ; Trabue v. McAdams, 8 Bush (Ky.),. 74. But see Knox v. Bailey, 4 Mo. App. .581, denjing Demainville v. Wann, 32 N. Y. 197. And see Simonds v. Turner, 120 Mass. 3-18. ART. II. ASSIGNMENT OF A LEASE. 335 pened before his own time, in which case the right to sue for the breach becomes a mere chose in action, and is not assignable.^ And since the only ground upon which he is liable is the privity of estate, he may always discharge him- self from liability for subsequent breaches in respect to rent or other covenants by assigning over; even though it be done for that ))ur})ose and made to an irresponsil)ie party .- § 377. Of an Assignee of the Keversion. — At common law, the assignee of the reversion could neither sue nor be sued upon the covenants contained in a lease, for the rea- son that he was considered a stranger to them,^ it being a well settled rule of law that no person can take advantage of a covenant or condition, unless he be a party or privy to it. But by the statute of 32 Hen. Vlll., ch. 34, the privity of contract, together with the [)rivity of estate, was transferred to the assigfnee of the reversion, which enabled him to take advantage of the conditions and cove- nants annexed to the estate, and gave the tenant a like rem- edy against an assignee that he would have against the assignor.* And this statute is believed to be in force in most of the States.^ As also that of 4 Anne, ch. 16, § 9, by 1 Martin v. Baker, 5 Blackf . 232. The arrears of rent due on a lease pass by a transfer (whether a technical assignment or sublease is not important) which purports to transfer all the assignor's "right, title and interest " in the lease, with the purpose to put the assignee in his place and stead, so far as concerns his rights under the lease. United States v.Hickey, 17 Wall. 9. 2 Armstrong v. Wheeler, 9 Cow. 88; Co. Litt. 3 a. And even though the assignee may receive from the assignor a premium, as an induce- ment to accept the transfer. Johnson v. Sherman, 15 Cal. 287. 3 Co. Litt. 215, a. ■* The provisions of this statute do not extend to the collateral cove- nants, but only to covenants touching or concerning the thing demised. Norman v. Wells, 17 Wend. 136. 5 Mussey v. Holt, 24 N. H. 248; Funk v. Kincaid, 5 Md. 404; English V. Key, 39 Ala. 113; Patten v. Deshon, 1 Gray, 325; Norman v. Wells, 17 Wend. 136; Haywood v. O'Brien, 52 Iowa, 537. A lessor may convey the reversion with the rent, or retaining the reversion, may assign the rent, and in either case the grantee or assignee may sue for the rent. Perrin v. Lepper, 34 Mich. 292; Beat v. Boston Car Spring Co., 125 Mass. 157. Where a lessor grants part of the reversion the rent is apportiona- 336 CONVEYANCING. CH. VII. which tlic necessity of a formal .■ittorniiient,^ in order to com- plete a art to which he is entitled. Worthiugton v. Cooke, 5G Md. .">!. ' All attornment is the acknowledgment by the tenant of a new land- lord, after a transfer of the premises, and his agreement to become ten- ant to the purchaser. Liudley v. Dakin, i;? Ind. 388. And is not the creation or initiation of a new lease. Tilford v. Fleming, (U Pa. St. 300. 2 Burden v. Thayer, 3 Mete. 7G; Farley v. Thompson, 1.5 Mass. IS; Coker v. Pearsall, (i Ala. 542; Baldwin v. AValker, 21 Coiui. 168; Perrin V. Lepper, 34 Mich. 292; Stinison's Amur. Stat., § 200U. •■'Breeding's Heirs V. Taylor's Heirs, 13 Ky. 481. An attornment to a stranger or to the claimant of an adverse title is void. Jackson v. De- lancy, 13 Johns. ii37; Jackson v. Harper, 5 Wend. 240; Lawrence v. Brown, i) N. Y. 3'J4; Kornegay v. Collier, Cw X. C 09; Bullard v. John- son, Id. 436. * Co. Litt. 215, b; Farley v. Thompson, 15 Mass. 20. ■' Bailie v. Rodway, 27 "Wis. 172. AKT. 111. MODES OF I)ETP:KMINING LEASES. 337 arrear and uin)aid at the time of the notice, as well as to those which accrue afterwards. But the rents in arrear at the time the niortgao-e was executed belong to the mort- gagor.i ARTICLE III. MODES OF DETERMINING LEASES. SECTION. 379. The subjects embraced under the present bead. 380. Lapse of time. 381. The happening of a specified event. 382. Forfeiture for breach of condition. 383. Merger. 384. Surrender detined. 385. Surrender may be in express words or by operation of law. 386. Of an express surrender. 387. Surrender by operation of law. 388. Tenant's disclaimer. 389. Failure of the lessor's title. 390. By force of some statute or the policy of the law. § 379. The Subjects Embraced under the Present Title. — Having considered the methods of making, executing and transferring leases, it only remains tor us to notice the several modes by which they may be determined. The same reasons that led us to omit any consideration of the manner of creating a tenancy at will and its kindred es- tates, will be a sufficient excuse for our omission to notice the method of determining such tenancies,'^ which ordi- narily comes under the head of " notice to quit."^ Those to be considered in the present article are properly em- braced under the following general heads: Lapse of time, or the happening of the event upon which the estate is limited ; forfeiture for breach of condition ; merger or ^ King V. Housatonic R. R. Co., 45 Conn. 226. 2 Ante, § 162. 3 See Taylor's Landl. & Ten., 7th ed., §§ 446, 487. (22) 338 CONVEYANCING. CH. VII. feurrendoi' of the lease; dischiimer by the tenant : failure of the lessor's title; the termination of the lessee's interest in the premises by force of some statute. Some of these we shall tind it convenient to subdivide into other more partic- ular heads. § 380. Lapse of Time. — A lease for a dcKnite term of years will, of course, expire with the term, at the end of the time limited. The rule in respect to the computation of time, generaly laid down, is that the first and last day of the time shall not both be counted ; but that one termi- nus shall be excluded and the other included, accordinf^ to circumstances or the apparent intention of the parties.^ If a lease be made for a month or months, in this country, calendar months are usually intended.- But by the P^nglish law, a month means a lunar month of twenty-eight days.-' § 381. The Happening of a Specified Event. — A term may also be demised subject to a contingent earlier determi- nation of it by a collateral event, as by death of either of the parties, or by the lessor's selling the property, or by any similar condition, the happening of which will ipso facto determine the lease.'* So, upon a lease for life.-'' No man can grant a lease to continue beyond the period at which his own estate is to determine; and therefore a tenant for life cannot make a lease to continue after his death .*^ But • Sheets V. Selden's Lessee, 2 Wall. 190; Farwell v. Rogers, 4 Cush. 460; Small v. Kdrick, 5 Wend. 137: Wiggiu v. Peters, 1 Mete. 127; Judd V. Fulton, 10 Barb. 117; People v. Robertson, 3!) Barb. 9. The day is included when its exclusion would produce a forfeiture or estoppel. Windsor v. China, 4 Me. 298; Sims v. Hampton, 1 Serg. & R. 411. Local custom will sometimes control. Fox v. Nathans, 32 Conn. 348; Wilcox V. Wood, 9 Wend. 346; Marys v. Anderson, 24 Pa. St. 272. 2 Sheets v. Selden's Lessee, 2 Wall. 177; Gross v. Fowler, 21 Cal. 392; Strong V. Birchard, 5 Conn. 361 ; Avery v. Pixley, 4 Mass. 460. ■5 2 Bl. Com. 141. A distinction has been held between "twelve mouths" and "a twelve month."" and the latter held to mean a year. Catesby's Case, 6 Coke, 51. ^ Knowles v. Hull, 97 Mass. 206; Ashley v. Warner, 11 Gray, 43; Munigle v. Boston, 3 Allen, 230; Shep. Touch. 274; Antoni v. Belknap, 102 Mass. 193; Flagg v. Badger, .-)8 Me. 258. 5 Shep. Touch. 187. « Robie v. Smith. 21 Me. 114; 4 Kent's Com. 106. ART. III. MODE8 OF DETERMINING LEASES. 339 a lease made under a power may continue, nothwithstand- innj the determination of the estate, by the death of the person by whom the power is to be exercised.' As the doctrine of powers came from equity,'^ the intention of the party who gave the power will govern its construction ; and the execution of it will be subject to the general supervis- ion of a court of equity.^ § 382. Forfeiture for Breach of Condition. — We have seen that a tenant may forfeit his lease in consequence of the breach of a condition therein contained, which author- izes the landlord to re-enter and thus put an end to the ten- ancy.* But such stipulations are strictly construed, and, in order to enforce them, there must be such a breach shown as it was the clear and manifest intention of the parties to provide for.-^ A forfeiture of a lease for breach of contract must be enforced promptly, and slight circum- stances will be treated as a waiver of the right. ^ It is op- tional with the lessor, whether he will avail hmiself of the right to re-enter for the breach of a condition or not;" and unless he does so, or signifies his in- 1 Co. Litt. 219; 4 Kent's Com. 106. 2 The doctrine was introduced into the common law bj^ the Statute of Uses. Ch. II, Art. XI. ^ A trustee, holding a fee determinable when the purpose of the trust shall cease, has power to lease for a term, which may extend beyond the period of his trust estate, subject to the jurisdiction of a court of equity to annul the lease, if unreasonable or improvident. Greason v. Ketel- tas,17N. Y. 491. 4 Ante, §§ 333, 341 ; Johns v. Whitley, 3 Wils. (5.^ ; Doe v. Phillips, '2 Bing. 13; Davis v. Moss, 38 Pa. St. 346; Wheeler v. Earle, 5 Cush. 31. 5 Brown's Admr. v. Bragg, 22 Ind. 122; Baxter v. Lansing, 7 Paige, 350; Kentucky River Co. v. Commonwealth, 13 Bush, 435; Smith v. Blaisdell, 17 Vt. 199; Spear v. Fuller, 8 X. H. 174. Miller v. Havens, 51 Mich. 482. The right of a landlord to I'e-enter for breach of a condi- tion subsequent is not viewed with favor in the law ; and where he claims a forfeiture, he must show that he has done everything required on his part to perfect such right of re-entry. Meni v. Eathbone, 21 Ind. 454. For breach of a mere covenant, the landlord has no right of re-entry, un- less there is an express clause in the lease w hich authorizes it. Johnson V. Gurley, 52 Tex. 222; Vanatta v. Brewer, 32 N. J. Eq. 2G8. 8 Allen V. Dent, 4 Lea (Tenn.), 676; Johnson v. Doylas, 73 Mo. 168. ^ Even though the lease, by its terms, is to cease or become void for 340 CONVEYANCING. CH. VII, tention to treat the lease as void, if it so ))i-ovKles,^ the estate will continue.- The effect of the condition is to render the lease voidable only; and it may be affirmed by the acceptance of rent, or any act which shows an intention on the part of the lessor that the term shall continue.'^ But to have the effect of a waiver, the landlord must accept rent which accrued after the forfeiture happened,^ and with knowledse of the fact that the condition has been broken.'* Where there is a continuing cause of forfeiture, such as using the premises in a manner prohibited by the lease, and the uon-perfonnauce of its covenants. Dermott v. VVallach,! Wall. 04; .Shumway v. Collins, G Gray, 231; Ludlow v. New York & Hudson R. R., 12 Barb. 440. See ante, § 339. But see Davis v. Moss, 38 Pa. St. 352 ; Beach v. Nixon, 9 N. Y. 35. ' Ante, § 339. AVhere the proviso is that the lease shall become void upon a certain event, and this condition is intended for the benefit of the lessor, it makes the lease void at his option only, and when he actu- ally avails himself of his privilege. Doe v. Bancks. 4 Barn. ^ by the act of law, as by marriage, descent, executorship, or intestacy; yet the lesser estate will merge, as often as one of them is an accession to the other by the act of the party, as by purchase or the like.'' It may be added that the law will not, in general, allow merger to take place to the prejudice of creditors, legatees, infants, husbands or wives. And although it is adopted in equity for the advancement of the ends of justice, its rules will not be observed where the intentions of the parties were manifestly otherwise, or where there are beneticial interests to be protected.* § 384. Surrender Defined. — Surrender is a yielding up of an estate for life oi years to him who has an immediate estate in reversion or remainder, by which the lesser estate is merged in the greater by mutual agreement.'' It bears a near resemblance, in circumstances and effect, to merger; but the analogy does not hold in all cases. To a surrender, it is requisite that the tenant of the particular estate should relinquish his estate in favor of the tenant of the next vested estate, in reversion or remainder. But merger, as we have seen, is confined to the cases in which the tenant of the estate in reversion or remainder grants that estate to the tenant of the particular estate, or in which the particular tenant grants his estate to him in reversion or remainder.*' Again, as noted by Chancellor Kent, surrender is the act of J Co. Litt. 388, b. 2 Lea's Case, 3 Leon. 110. 3 3 Prest. Coiiv. 310. < Clift V. White, 12 X. Y. .■)19. 8eo Gibson v. Crebore. 3 Pick. 475; Gardner v. Astor, 3 .Johns. Ch. .53; Starr v. Ellis, G .lobns. Ch. 393. ■^ Co. Litt. 337. /<. Prest. Couv. 2.'): 4 Kent's Com. 100. ART. ril. MODES OF DETERMINING LEASES. 345 the party, and rrei-fjer is the act of the lavv.^ It may be remarked also, that a surrender is of a nature directly opposite to a release ; while the latter operates by the greater estate dei^cending upon the less, the former is the falling of a lesser estate into a greater by deed. A surrender imme- diately divests the estate of the surrenderer, and vests it in the surrenderee, even without the assent of the latter. Such assent will be presumed.^ There can be no surrender except by a party in possession; and the person to whom the surrender is made must, as in merger, have a higher estate iuimediately in reversion or remainder. Thus, a tenant for life cannot surrender to him in remainder for years, nor one joint tenant to another.^ Neither can the under-lessee surrender to the orig-inal lessor, but he must surrender to his immediate lessor or his assignee.* The doctrine of surrender cannot apply on a lease in fee, for the reason that there is no reversion.-^ § 385. Surrender may be either in Express Words or by Operation of Law. — Surrender is either in express words by which the lessee manifest his intention of yielding up his interest in the premises to the lessor, or by operation of law, which takes place when the parties, without an}' express surrender, do some act which implies that the}^ have both agreed to consider the surrender as made.*^ § 386. An Express Surrender is required by the Stat- ute of Frauds to be in writing. Therefore, a mere parol agreement betwenthe parties, to determine a tenancy, is not 1 Ibid. 2 Shep. Touch. 300, 301. A surrender to an infant is good, for his assent will be presumed till a disao^reemeut appears. Thompson v. Leach, 2 Vent. 198, 208. 3 Shep. Touch. 303; Taylor's Landl. & Ten., 7th ed., § 508. <2Prest. Abst. Tit. 7. ^ Springstein v. Sehermerhorn, 12 John-. 357. «Beall V. White, 94 U. S. 382; Lawrence v. Brown, 5 N. Y. 394; Murray v. Shave, 2 Duer, 182; 4 Kent's Com. 103; Taylor's Landl. & Ten., 7th ed., § 507. The latter is when an estate, incompatible with the existing estate, is accepted. Pierce v. Brown, 24 Vt. 165. 34t) CONVEYANCING. CH. VII. binding upon eithor.^ Nor can a lease for years be surren- dered by merely canceling the indenture without writing.^ But a parol agreement, accompanied by acts indicating an intention to terminate the tenancy, may amount to a surren- der by operation of law.-' 80 the fact of cancellation may be strong corroborating evidence in aid of other proof, such as the granting of a new lease to other parties, that a sur- render in law has taken place.'* A deed is not necessary to effect a surrender, since it may be by note in writing. Nor are any technical words necessary. The usual and proper words are "surrender" and "yield up;'" hut any form of words, by which the in- tention of the parties is sufficiently manifested, will operate as a surrender. Thus, where the lessee leased the demised l)remises to the lessor, the owner of the immediate rever- sion in fee, by an instrument like that by which he became lessee, it was held to be a surrender of the lease.^ And where the lessee has assigned his lease to another, for his entire term, in writing, and the original lessor has orally assented to the same, and has accepted rent from the assignee, it has been held to operate as a surrender of the original lease, and a substitution of a new tenancy.*' It is ' Thomson v. Wilson. 2 Stark. 379; Bailey v. Wells, 8 Wis. 141. A lease, not exceeding the term for which a parol lease would be binding, may be surrendered by parol. Kiester v. Miller, 25 Pa. St. 481; Mc- Kinney v. Reader, 7 Watts, 123. But where the unexpired term of a lease does not exceed one year, it may be surrendered by parol, although the lease was originally for a longer period. Smith v. Devlin, 23 N. Y. 363. 2 Rowan v. Lytic, 11 Wend. (il(!; Rayuor v. Wilson, (t Hill, 469; ante, ^ 20. ^ Infra, §387; Hanliam v. Sherman, 114 Mass. 19. 4 Holbrook v. Tirrell, 9 Pick. 105; Baker v. Pratt, 15 111. 568; Walker V. Richardson, 2 Mees. & W. 882. And see infra, § 387. ^ Shepard v. Spaulding, 4 Mete. 416; Challoner v. Davis, 1 Ld. Raym. 400. But where the tirst lease was from two, and the lease back agaiu to one only, it did not amount to a surrender. Sperry v. Sperry, 8 N. H. 477. Nor can one of several lessees affect the rights of his co-les- sees by conveying to his lessor. Baker v. Pratt, 15 111. .568. " Logan V. Anderson, 2 Doug. (Mich.) 101 ; Bailey v. Delaplaine, 1 Sandf. 5; infra, § 387. But see Brewer v. Dyer, 7 Cush. 337; Whitney v. Myers, 1 Duer, 260. ART. III. MODES OF DETERMINING LEASES. 347 not competent, of course, for the lessor and lessee to affect the rights of third parties by a formal surrender of the lease; as, for instance, those of the assignee, or of the lessee's subtenant.^ § 387. A Surrender by Operation of tiaw takes place, as we have seen, when the parties, without express words indicating such intention, do some act which implies that they both agree to consider the surrender as made.^ Ques- tions of considerable difficulty sometimes arise, as to what will constitute such a surrender. It may be stated as a general proposition, that if the lessee of a term takes a new lease of the same premises, to take effect before the expiration of such term, this works a surrender of the first, unless there are facts clearly rebutting such inference.^ This presumption is raised by the circumstances of the case. The two leases being incompatible, both cannot be valid at the same time; hence the acceptance of the second lease implies a surrender of the first. It follows that if the second lease be void, its acceptance will not amount to a surrender;"^ or if the acts of the parties, taken altogether, are such as to rebut the idea of a surrender, then none will be presumed.^ It should be remembered, however, that it is not a question of intention. The surrender is not the result of intention, but takes effect where the owner of a particular estate has been a party to some act, the validity of which he is, by law, afterwards estopped from dis])uting, 1 McKenzie v. Lexington, 4 Dana (Ky.), 129; Adams v. Goddard, 48 Me. 212, 215. 2 Beall V. White. 94 U. S. 382 ; Harris v. Hiscock, 91 N. Y. 340. 3 Van Rensselaer v.Penniman, 6 Wend. 569; Co.Litt.33S, a; Williams on Real Prop. 377 ; 1 Washb. on Real Prop., 4th ed. , 548 ; Smith's Landl. &Ten., 225, 230; Livingston v. Potts, 16 Johns. 28; Abell v. Williams, 3 Daly, 17; Wilson v. Lester, 64 Barb. 431. ■• Davison v. Stanley, 4 Burr. 2210; Smith v. Xiver, 2 Barb. 180; Bed- ford V. Terhune, 30 jST. Y. 463. Whether a sealed lease for a term can be surrendered by substituting a new parol one, depends on whether the new parol lease was binding within the Statute of Frauds. 1 Washb. on Real Prop., 4th ed., 548. 5 Jackson v. Gardner, 8 Johns. 394 ; Coleman v. Maberly, 3 T. B. Mon. 220; Brewer v. Dyer, 7 Cush. 339. See Flagg v. Dow, 99 Mass. 18. 348 CONVEYANCING. CH. VII. and which wouhl not be valid if his particuhir estate had continued to exist. ^ " The hiw treats the doinj; of such an act as ainountiiiij to a sui render.'"- Wiiere, before the ex- piration of the lease, the lessee actually surrenders pos- session of the premises to his lessor, who accepts the same and leases them to another, this has frequently been held to be a surrender. ' And it seems that any acts which are equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to resume pos- session of the demised premises, may amount to a surren- der.* Upon principle, in order to constitute a legal sur- render, the acts must amount to an actual surrender of the possession by the lessee, and an accei)tance of such pos- .session by the lessor, such as receiving the keys of the house, going into possession, accepting the tenant of the lessor as his own and receiving rent from him, or some other act of equivalent significance.'^ 1 Lyou V. Reed, i:^ Mees. & W. 30G. See 1 Washb. on Real Prop., 4th ed., .5.52; Nelson v. Thompson, 2,3 Minn. 508. ^ Lyon V. Reed, 13 Mees. & W. 306. ••'Randall v. Rich, 11 Mass. 494; Ilesseltine v. Seavey, Ui Me. 212; Dodd V. Acklom, Man. it G. (573; Grimnian v. Legge. 8 Karn. & C. 324; Hanham v. Sherman, 114 Mass. 1!); Amory v. Kannoffsky, 117 Mass. 351. •• Talbott V. Whipple, 14 Allen, 180. This doctrine was applied in a case where the lessee returned the lease to the lessor's otlice and took a receipt thereof from a person not proved to be authorized to accept a surrender, and the lessor, without returning it, received rent from one to whom the lessee had sublet the premises. Amory v. Kannoffsky, 117 Mass. 351. The destruction of the lease by nujtual consent for the pur- pose of making a new one. Baker v. Pratt, 15 111. 568. 5 See Taylor's Landl. & Ten., §§ 512, 518; Stobie v. Dills, 62 111. 432; Martin v. Stearns, 52 Iowa, 345. Wlien a landlord takes the key to the premises and deals with it as if it had become liis own, the act is suffi- cient to authorize a jury to tind that the landlord intended to resume possession and to discharge the tenant from his obligation as lessee. Dos Santos v. llollinshead, 4 Phil. 57; liegeman v. McArthur, 1 E. D. Smith, 147. Hut see, contra, Bloomer v. Merrill. 1 Daly, 485; Id., 29 How. Pr. 259; Prentiss v. Warne, 10 Mo. 601. Retention of the keys by the lessor, after l)eing sent to him by the lessee, of itself, is not suffi- cient to prove a surrender. Thomas v. Nelson, 69 N. "Y . 118; Morgan V. Smith, 70 N. Y. 537. But the putting another tenant in by the lessor is sufficient. Tiadd v. Smith, 6 Oreg. 316. ART. 111. MODES OF DETERMINING LEASES. 349 § 388. Tenant's Disclaimer.^ — At common law, a ten- ant forfeited his lease by assuming a position hostile to his landlord, or doing any act indicating a disclaimer of his title, such as affirming, by matter of record or otherwise, the fee to be in a stranger; claiming a greater estate than he is entitled to ; refusing to pay rent and attorning to a stranger ; or aliening the estate in fee by any mode which had the effect of divesting the estate of the reversioner, as by feoffment or other common-law conveyance.^ The last mentioned ground of forfeiture has no application to the conveyances in use in this country, and therefore requires no further mention,- Although a mere verbal disclaimer of the landlord's title by the lessee, and asserting title in himself, does not seem to have amounted to a forfeiture at common law,^ it is now held in many of the States, that if a tenant, even by mere words, distinctly repudiates his les- sor's title and asserts one in himself, and this is made known to his lessor, the tenant's holding becomes adverse, and consequently his tenancy is forfeited,* A lease will also be forfeited by a fraudulent attornment, as by the tenant's accepting a lease from a stranger, and on that ground re- fusing to pay rent,^ but not, it seems, until the attornment 1 Co, Litt, •2.51, h. - It uever applied to conveyances operative under the .Statute of Uses. Jackson v. Mancius, 2 Wend. 357. 3 De Lancey v. Ganong, 9 N. Y. 9. * Willison V, Watkins, 3 Pet. 43; Tliayer v. Waples, 26 La. Ann, 502; Sherman V, Champl, Tr. Co., 31 Vt. 177; Baker v. Noll, 59 Mo. 2G5; Doty V. Burdick, S3 111.473; Stott v. Rutherford, 92 U. S, 107; Allen v. Paul, 23 Gratt. 332; Bowdish v. Dubuque, 38 Iowa, 341; Frazer v. Rob- inson, 42 Miss. 121 ; Longfellow V, Longfellow, 61 Me. 590; Hardy v. Akely, .57 Barb. 148; Brenner v. Bigelow, 8 Kan. 497; Lebanon School Dist. V. Lebanon Female Sem, (Pa.;,12Atl. Rep, 857 ; Tilyon v, Reynolds (N, Y.), 15 N. E, Rep. 534; Estabrook v. Hateroth, 34 N. W. Rep. 634; Gallagher v. Council (Neb,), 36 X, W, Rep. 566. But this rule does not hold where the tenant is induced to accept the lease or the possession by fraud or mistake, Bigler v, Furman, 58 Barb. 545; Higgins v. Turner, 61 Mo, 249; Evans v, Bidwell, 76 Pa. St. 497; Jenckes v. Cook, 9 R. I. 520; Gallagher v. Bennett, 38 Tex. 291. « Thompson v. Pioche, 44 Cal. .508; Leach v. Koeuig, .55 Mo, 451. And see Stagg v. Eureka Tanning Co,, 56 Mo. 317; Anderson v. Smith, 63 III. 350 CONVEYANCING. CH. VII. is made known to the lessor.^ In .short, m tenant can do no act inconsistent with, or which coukl change the relation between himself and his landlord, without first yielding and delivering up to the latter the possession acquired from him. 2 § 381). Failure of Title — Eviction. — It was a well set- tled principle of the common law that a lease for years, made by a disseizor or wrong-doer, was absolutely deter- mined by the entry of the disseizee or rightful possessor.'* And, as no man can grant a lease to continue beyond the period at which his own estate is to determine, it follows 12G. A tenant cannot justify his attornment to a third party by merely showing that such party has recovered a judgment against him for the possession of the premises. He nuist show that his landlord was notified of the pendency of the action and had an opportunity to defend ; other- wise the landlord is neither bound nor estopped by the judgment. Douglas V. Fulda, 4.5 Cal. 592. An attornment to the mortgagee, even after forfeiture by non-payment, is not valid until the mortgage is foreclosed. Mills v. Hamilton, 49 Iowa, 105. A tenant in possession underone title can make no valid attornment to any one not in privitj' with that title; and one in possession as tenant in common, in privity and full recognition of the title of the undivided interest not owned bj'^ himself, as belonging to some one else, is bound to account to the latter; and a promise to pay rent to another, made by such tenant in possession on the assumption that said promisee had such outstanding interest, cannot be enforced without proof that he held such title ; for if he had no title, the attornment would be void and the promise without consid- eration. Fuller V. Sweet, 30 Mich. 237. And see Camarillo v. Fenlon, 49 Cal. 205. ^ Doe V. Reynolds, 27 Ala. 364; Stacy v. Bostwick, 4S Vt. 192. See Russell V. Fabyan, 34 N. H. 223. - Bertram V. Cook, 32 Mich. 519; Rogers v. Boyton, 57 Ala. 501; Hughes V. AVatt. 28 Ark. 153; Wilson v. .lames, 79 N. C. 349. Neither can an assignee of the lessee. Earle v. Hale, 31 Ark. 470. But the rule does not preclude the lessee from acquiring the title of his lessor, either by a direct conveyance or by an equivalent one through the direct op- eration of law, as whore the lessee purchases the lessor's reversion at sheriff's sale on an execution against the lessor. Nellis v. Lathrop, 22 Wend. 121; lliggins v. Turner, 61 Mo. 251. Neither does it prevent the lessee from showing that the landlord's title has terminated either by its own limitation or by his eonvej'ance. St. John v. Quitzow, 72 111, 334; Lamsou v. Clarkson, 113 Mass. 348; Jackson v. Rowland, 6 Wend. 670; Fuller v. Sweet, 30 Mich. 237; McGuffie v. Carter, 42 Mich. 497. 3 Co. Litt. 147. a; Bac. Abr. Leases. 1. ART. 111. MODES OF DETERMININCi LEASES. 351 that if the estate which a lessor has at the time of making the lease is defeated, or otherwise legally determined, the lease is extinsuished wilh it.^ So an eviction of the tenant b}^ title paramount, or b}^ act of the lessor, will ipao facto determine the tenancy.- If a tenant yields the possession of the demised premises, in consequence of a judgment for the recovery of possession, to the person adjudged to be the rightful owner of the ])aramount title, it is an eviction which discharges him from the payment of rent."' So, where the landlord enters wilfully upon and expels the ten- ant actually or constructively from a part of the demised premises, though he continue in possession of the residue.* But when a lessee is evicted from a part only of the de- mised premises by one claiming under paramount title, he is discharged from the paj'ment of so much of the rent only as is properly chargeable to the part of the premises from which he is evicted.-^ ^ Burr V. Stenton, 52 Barb. 377. - Wheelock V. Warschauer, 34 Cal. 265; Gore v. Stevens, 1 Daua. 201 ; Wood V. Partridge, 11 Mass. 488. Where the landlord erected a build- ing in the back yard of the premises leased, the effect of which was to render unfit for use two roonas used by the tenant, and the tenant did not give his assent to the erection of the building, it was held that the latter might treat the act as an eviction, give up the premises and decline to pay rent. Royce v. Guggenheim, 106 Mass. 201. 3 Home Ins. Co. v. Sherman, 46 N. Y. 370. But not when the tenant voluntary yields possession of part of the premises leased. Lettick v. Honnold, 63 111. 335. ^ See ante^ § 357; Johnson v. Oppenheim, 12 Abb. Pr. (X. S.) 453; Id. 43 How. Pr. 433; Skaggs v. Emerson, 50 Cal. 3; Lj-nch v. Baldwin, 69 111.210; Colburn V. Morrill, 117 Mass. 262; Smith v. Stigleman, .58 111. 141 ; Hayner v. Smith, 63 111. 430. The act of the landlord must be something more than a mere trespass to have the effect of an eviction. It must be something of a grave and permanent character, done with the intention of depriving the tenant of the enjoyment of the premises. Whether the acts complained of amount to an eviction depends upon the circumstances and is a question in all cases for the jury. Lynch v. Baldwin, 69 111. 210; Morris v. Tillson, 81 111. 607. See Bartlett v. Farrington. 120 Mass. 284. Actual expulsion is not necessary. Mon- tanye V. Wallahan, 84111. 355. And see Burnham v. Martin, 8 Cent. L J. 327. ■^Tunis v. Grandy, 22 Graft. 109; Seabrook v. Mover, 88 Pa. St. 417. 3.02 CONVEYANCING. CH. VII. We have seen that, as a general rule, the destruction of the premises by fire or other casualty does not terminate the tenanc}', unless it is so provided in the lease. ^ But it has been held that if the thing leased is totally destroyed, as where the lease is of particular apartments in a building which is destroyed by fire, the lessee having no interest in the land, the lease will perish with the subject-matter.- § ."»IH). A Tenancy may also be Deterniinecl by Force of some Statute, or by the Policy of the Law, as where the premises are used for an unlawful or immoral purpose. A lease of premises made for ))urposes of prostitution, or other immoral object, is against the policy of the law and absolutely void.-^ And in many, if not in all of the States, it is provided by statute that the owner or landlord of any premises used or occupied as a bawdy-house, or house of assignation for lewd persons, may take summary proceed- ings for the removal of the occupants; and in some of the States a penalty is provided for a failure to do so. 1 Ante, §§ 353, 357. 2 Graves v. Berdau, 26 N. Y. 498; Kerr v. Merchants Exchange, 3 Edw. Ch. (N. Y.) 315. A demise of the basement rooms of a building of sev- eral stories in height, without any stipulation by lessor or lessee for re- building in case of fire or other casualty, gives the lessee no interest in the land, though he pays all the rent in advance; and if the whole building is destroyed by fire, his interest in the rooms is terminated. Stockwell v. Hunter, 11 Mete. 448. And he cannot cover over the cellar and use it, though his lease has not expired by several years. Winton V. Cornish, 5 Ohio, 477. By statute in Conn., New York, Ohio and Minn., destruction of premises allows tenant to quit and surrender. Stimson's Am. Stat. § 2062. 3 Taylor's Landl. & Ten., 7th ed., § 521 ; Russell v. De Grand, 15 Mass. 39; Shiffner v. Gordon, 12 East, 304. To avoid a lease under a statute making a lease void when a lessee uses the premises for the illegal sale or keeping of intoxicating liquors it must appear that the offense was committed u])on the premises leased. Machias Hotel Co. v. Fisher, .56 Me. 321. ART. I. OliKJIX AND DKVELOI'.MENT OF TIIK LAW. 353 TITLE III.— Mortgages. Chapter VIH. The Xature and History of Mortgages. IX. Form and Requisites of a Mortgage. X. Assiguments— and herein of Purchasers of theFquiry of Redemption. XF. Redemption, Payment and Discharge. XI[. Of Foreclosure. CHAPTER VIII. — Nature and History of Mortgages. Article I. The origiu and Development of the Law. II. The nature of Mortgages in the Different States. ARTICLE I THE ORIGIN AND DEVELOPMENT OF THE LAW. SECTION. 395. Definition of a mortgage. 396. The origin of mortgages. 397. The vivum vadium. 398. The mortmim vadium. 399. Origin of the English law of mortgages. 400. A mortgage at the common law. 401. Origin and growth of the equity of redemption. 402. Two opposite sets of rules ;it law in and equity. 403. The doctrine reduced to a harmonious system. C23) 3'">4 CONVEYANCING. CH. VIII. § 3!)5. Aavioiis Definitions of ji Mortgage have been given ])\ different judges and law writers, none of which can be said to be absohitely eoi'rect, wiien ap])lied to every species of security comprehended by the term. An ordi- nary mortgage may be described to be a conve3\ance of properly by way of pledge to secure the });)ymentof inone}^ the fulHIlment of some contract, or the })e".formance of some act, and to l)ecome void u})()n such })aym?nt or performance, agreealjjy to the provisions of the deed.^ "The legal ownership is vested in the mortga^'ce, but in equity the mortgagor remains the actual ()wr.( r, until he is barred by his own default, or by judicial (ecrce."- In consequence of lhi> double natuie of mortg-a (>s, arising out of the differ- cut and even conflicting views taken of the subject by the courts of law and of e(juity, and the confusion thai it has occasioned in the doctrine as administered in the different States, no detinition o^'the term can be comprehended in a single propo-i.ion, which will give an adequate and just concept io:! of the law as it now exists. To do this is the sei'vice that will be attempted in the present cha})ter. And no more t'liiriblc way i)rcsents itself than to betjin with a brief sketch of the history of the development of that law. § rVM\. The Origin of 3Iortgages. — There has been much speculation among law writers, in regard to the orio-in of mortgages. 1'hey are suiii)osed b}" some to have originated witli tiie flews, ^ while others have expressed the opinion that thcA- ousht rather to be attril)uted to the natural re- ^ Mitehell v. IJuriiliuiu. 44 Me. 2:)»; Wing v. Cooper, 37 Vt. 170. "At eojimioii l:nv, ;i mortgiige is deliued to be a deed conveying lands, con- ditioned to be void upon the payment of a sum of money, or tbe doing of some other aet." J.und v. Lund, 1 N. II. 41. " An estate upon con- dition defeasible by the performance of the condition according to its legal effect." Erskine v. Townsend, 2 Mass. 49.5; Carter v. Taylor, 3 Head (Teim.), 30; Briggs v. Fish, 2 D. Chip. (Vt.) 100. 2 A ^enfs Com. 130; Coote on Mort., p. 1. ^ I'owell (in Mortgages, 1. Mr. Coote saj-s: '• In early times tbe Jews weie the great money lenders. It was held usury for Christians to lend money at interest; and accordingly, if lands were enfeoffed to a cred- lor, and the rents And profits received by him, and not applied to the ART. I. ORIGIN AND DETELOPMENT OF THE LAW. 355 quirements of civilization.^ Certain it is that mortgages, or at least [)le(lges of land in the nature of mortgages, were not unknown to the Ano;lo-Saxons in Enjjland;^ though very little can be gathered in respect to the law gov- erning such transactions. In the time of Glanville, mortgages had assumed two distinct forms, which lie desig- principixl of the debt, altbougb uot probibUed by the King's Court, it Avas puuisbuble b}' forfeiture of his lands and chattels, if he died pos- sessed of the pledge. And this, according to Glanville, was the origi- nal meaning of the term mortumn vadhtm, and not the meaning subse- quently attached to the word by Littleton and others." Coote on Mort. 41. 1 "In a state of nature, agreements of this kind must have been en- tirely useless; for, iu that state, a creditor might have seized on any part of his debtor's goods, without cei'emony or contract. Puff. Lib. 5, c. 10, § 16. But when society became compact and consolidated, there immediately arose a right to every man to enjoy his own, and the sup- port and vindication of that right Avas one grand object to every civil- ized community. Among subjects of the same State it must have soon suggested itself, that no easier mode of supplying their immediate wants could have been adopted, than by a system of resorting to a bor- rowing on loan. They must frequently have been in need of temporary accommodation, and the plan of assisting each oher on credit would have exhibited the readiest method of giving relief to their present necessities. In case of magnitude, they would have required a pledge or security for the return of the thing borrowed; and the immediate resignation of some transportable article was the consequence of a com- pliance Avith that request. Hence it Avould appear that the primitive idea of mortgaging ought to be referred more to the introduction of order and civilization among mankind, than to the invention of any particular set of people; for, to the tranquility of every commonwealth (dei^ending as it does so greatly on mutual assistance), it is absolutely requisite that recourse should be had, even iu its infancy, to this system of lending on security. It is evident that different nations would sub- ject it to different regulations*, and in England the Court of Chancery has given rise to the inseparable incidents of redemption and fore- closure. But the general principle must have been common to all man- kind, as a necessary effect of the establishment of society. The practice then of lending and borrowing at intere-st must have existed from the earliest antiquity; but its present prevalence, Avhich is almost universal, may be attributed to the extension of commerce; for commerce could not be carried on without credit, and credit could not be obtained with- out compensation." Mr. Coventry in Powell on Mortgages, p. 2. - Jones on Mortgages cites Essays on Anglo-Saxon Land Law, p. 106. 356 CONVEYANCING. CH. VIII. nated by tlie terms vivum vadium and mortuiim vadium} These appear to have been adopted from the customary law of Normandy .'- Tt has been said that there were no mortgages in use in England during the existence of feudal tenures.^ Although the feudatory could not alien without a license, yet, with the concurrence of his lord, the tenant might have aliened, and consequently have mortgaged the feud.* And the feudal lord, it seems, might at all times have mortgaged his lands.'' After freedom of alienation had been restored, mortgages soon l)ecame frequent, and began to occupy the attention of the courts. § 3!t7. The Vivum Vadium, according to Littleton, sig- niHed a living pledge, and applied when the creditor took the estate to hold and enjoy until he paid himself out of the rents and profits, without any limit to the time for re- demption ; in which case the land survives the debt, and when the debt is discharged, immediately reverts back to the original owner. This form of security has long been nearly obsolete, but seems occasionally to have been substi- tuted in the place of an original mortgage.^' § 31)8. The Mortuum Vadium of (ilanville was a feoff- ment to the creditor and his heirs, to be held by him until his debtor paid him a given sum, until which time he re- ceived the rents without account, the rents being taken in lieu of interest which, under the name of usury, was an- ciently regarded as an unchristian abomination." This form 1 Glanville, Book 10, ch. 6. 2Cust., Book 10, ch. 8, § 20. And see Vinuius, Tnst., Book 3, tit. 15. =^ Treatise ou ilq., JJook 3, ch. 1, § 1. ■•Feud., Book 2, tit. 5, § 5. 'As an instance of this, William, Earl of Poictiers, mortgaged the l)iovitices of Guiennc and Poictiers to William Rufus, King of England. 1 Hume's History of England, 270; 4 Ih. 30. 6 In a foreclosure suit, the defendant may set lip a subsequent writ- ten assignment of the rents to be received until full payment of the debt. Angier V. Masterson, Cal. 01. Where a mortgiigee is to have possession and pay the debt from the rents, there can be no foreclosure, unless he has rendered an account. Rankert v. Clow, IG Tex. 9. 7 Glanville, Book 10, ch. (J; Coote on Mortgages, ch. 2. AUT. I. ORIGIN AND DEVELOPMENT OF THE LAW. 357 of security was afterwards called the Welsh mortgage. In the time of Littleton the vadium inortuum had become a conditional estate, and wa^ what may properly be termed the ancient common law mortgage, which is next to be con- sidered.^ § 399. Origin of the English Law of Mortgages. — Before proceeding, it is thought proper to note a few obser- vations in regard to the source from which the law of mortgages, as known to the common law, was derived. Says Chancellor Kent: "The English law of mortgages appears to have been borrowed, in a great degree, from the civil law; and the Romtm hypoiheca corresponds very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was en- titled to his actio hypothecaria , to obtain possession of the pledge, w^hen the debtor w'as in default; and the debtor had his action to regain possession, when the debt was paid or satisfied out of the profits, and he might redeem at any time before sale."- On the other hand, Mr. Butler is of the opinion that mortgages, in the English law, were strictly founded upon the common law doctrine of condi- tions.^ The construction put upon mortgages by the courts of law, and the early law writers, would seem to justify the view taken by the latter;* but there can be no doubt that the equitable doctrine of mortgagees was derived from the civil law.^ § 400. A Mortgage at the Common Law was a feoff- ment upon the condition that if the feoffor or his heirs paid the sum to the feoffee or his heirs, he should re-enter and 1 Littleton's Tenures, Book 3, ch. .5, §§ 333, 337. '■^4 Kent's Com. 136. "If the debtor did not redeem the thing pledged, tbe creditor was to foreclose the redemption of the debtor, and if the money was not paid, the creditor had his actio pignoritia or hypothecaria^ which when he had pursued and obtained sentence thereon, he might sell the pledge as his own property." Bac. Abr., Mortgage (A). 3 Co. Litt., Butler's notes, 1. ^ Blackstone, following Littleton and others, expressly puts mortgages as estates on condition. 2 Bl. Com. 151-162. ^ Story's Eq., § 1005; Bac. Abr., Mortgage (A). 358 CONVEYANCING. CM. VI 11. re-[)ossess ; or according lo the more modern form, lliut then the niortojagee should re-convey the estate to the niortgaf^or.^ The estate passed to the mortgagee subject to be defeated upon the performance of the condition. If the mortgagor failed to perfonii the required condition, at the day, his estate became forfeited, and the mortgagee there- upon held the same absolute and irredeemable.'- The debt was required to be tendered at the time and [)lace provided; and, in general, the transaction was held subject to the strict rules which govern conditions.-^ But so lono; as it continued conditional, that is, between the time of lending the money and the time allotted for payment, the mort- gagee was called the tenant in mortijafje.* § 401. Orij;in and Growtli of the Doctrine of an Er., Mortgage (A) ; 2 Bl. Com. 158. 2 Litt., § .S32; Spence's Eq. 001, GO-2; Story's Eq., § 1004. SLitt., §332; Co. Litt. 20.^); Wade's Case, 5 Coke, 114; Goodall's Case, 5 Coke, 96. 4 Litt., §332; 2 Bl. Com. 1.58. » In a note to tlie above. Jndge Story ^hows tliat wlien a mortgage is denominated a trust, and the mortgagee a trustee of the mortgagor, the AUT. I. OlilUlN AND DEVKLOI'AIENT OF THE LAW. 359 what was signiticantly called, an equity of rcdeniptioii, which he Hiiirht enforce aj^ainst the niort^airee, as lie could any other (rust, if he api)lied within a reasonable time to redeem, and offered full payment of the debt and of ail equitable charges."^ But this doctrine of the courts of equity made its way very slowly against the stubborn prin- ciples of the common hiw and the })rejudices of its advo- cates.'- Even after the equity of redemption was admitted, it was long maintained that, if the money was not paid at the time appointed, the estate became liable in the hands of the mortgagee to dower, and all other his real charges and incumbrances, although the debt was afterwards paid and the estate re-conveyed to the mortgagor;'^ which led to the custom of demising a long term of years only by way of mortgage, instead of mortgaging the fee.* "But the courts of equity, as they grew in power, have set this matter right, and have maintained the right of redemption, not only against the tenant in dower and persons who come in under the feoffee, but even against the tenant by the courtesy, and lord by escheat, that are in the post; because the payment of the money doth, in the consideration of equity, put the feoffor in statu quo, since the lands were expression is to be taken in a limited and qnalitied sense. Story's Eq., § 1013, n. 1 story's Eq., § 1018. 2 '•Thougli a strict forfeiture in the ease of mortgage was condemned by the Council of Lateran, A. D. 117S, during the reign of Henry II., it is said, Parliament, in 1391, refused to admit a redemption after for- feiture, and such estates continued irredeemable during the reign of Edward IV., who died in 1483."' 2 Washb. on Keal Prop., 4th ed., 39. But the doctrine seems not long afterwards to have struggled into ex- istence. Butler's note (1) to Co. Litt. 204, 6. And became established in the reign of Charles I., A. D. 1629. 1 Spence's Eq., 603; How v. Vi- gures, 1 Kep. in Chancery, 32. ^Bac. Abr., Mortgage (A). •* In speaking of this form of mortgage, Lord Bacon says: ''It was esteemed best for the mortgagor, to avoid all manner of pretensions from the incumbrances and dower of the feoffee in mortsjiire: and was reputed best for the mortgagee, to avoid the wardship and feudal duties of the tenure." Bac. Abr., Mortgage (A). 3H0 CONVEYANCING. CII. VIII. oriofinalU' onU a i)lc3 law, vests absolutely in the mortr^agee ; but in cquit}' the mortoraore remains a mere security for the debt.^ But these two opposite sets of rules, as we have seen, have been shorn of their incongruities, and so adjusted that a i)er- fectly detined system is the result.^ The mortgagee merely holds the legal title as security for a specific purpose, and neither in a court of law nor of equity is he permitted to use it, except for the purpose of making effectual the security, and to })revent any violation of his rights under the mortgage.'^ As against all persons but the mortgagee, the mortgagor is considered as havino; the lefjal estate, and may in every respect deal with the land as his own, subject only to the legal title of the morto-ao-ee so far as such legal title is necessary to his security.* The Supreme Court of Massachusetts has held that a mortgagee is so far the owner in fee of the mortgaored estate, that if any part of it is wrongfully severed and con- verted into personalty by the mortgagor, his interest is not divested, but he remains the owner of the personalty, and may follow and recover it or its value of any one who has converted it to his own use.^ The mortgage being only security for the debt, the mort- gagor has all the rights he ever had against all but the mortgao-ee.^ 1 Welsh V. Phillips, 54 Ala. 309. 2 Ante, § 40. 3 Bartlett v. Borden, 13 Bush (Ky.), -t^; Glass v. Ellison, 9 X. H. 69; Harkrader v. Leiby, 4 Ohio St. 602; Ellison v. Daniels, 11 N. H. 274; On- V. Hadley, 36 N. H. 575. * Blaney v. Bearee, 2 Greenl. 132; Hitchcock v. Ilarrinojton, 6 Johns. 290; Wilkins v. French, 20 Me. Ill ; Schuylkill Co. v. Thobiirn, 7 Serg. & R. 411 ; Southerin v. Mendum, 5 X. H. 420; Terry v. Rosell, 32 Ark. 478; Bradley v. Fuller, 23 Pick. 8; White v. Whitney, 3 Mete. 81; Orr v. Hadley, 36 X. H. 578; Willingtou v. Gale, 7 Mass. 138; Cooper v. Davis, 15 Conn. 556; Asay v. Hoover, 5 Pa. St. 21; Clark v. Beach, 6 Conn. 146; Chamberlain v. Thompson, 10 Conn. 243, 5 Scarle v. Sawyer, Sup. Jud. Court of Mass., 9 Cent. L. J. 466. ^ Wilkin^ V. French, 20 Me. 111. But it is incorrect to say that a mort- gage does no more than to create a mere lien upon the property. It op- erates a conveyance of the estate by way of pledge or security for the 3l)4 CONVEYANCING. CH. VIII. As between inortiragor and mortfragee, the latter is taken to be the owner of the fee; and, as the right of possession follows the light of ])roi)eit3-, if there be no clause or agreement to restrain it, he is entitled to possession imme- diately upon the execution of the mortgage deed, and is liable to be dispossessed only by performance of the condi- tion at the time limited. ^ Sometimes an express stipulation is inserted in the mortgage, to the effect that the mortgagor shall remain in possession of the property mortgaged, until default, which has the effect of a lease of the property by the mortgagee to the mortgagor. The latter, becoming the tenant of a term, cannot, therefore, be dispossessed during the term. And in the absence of such a stipulation, it is almost the universal practice, founded upon a presumed or tacit assent, for the mortgagor to retain the possession ; but technically he holds it solely at the will and by the permis- sion of the mortgagee, who may, at any time, by entry or ejectment, recover the same.- In that case, also, until the mortgagee has regularly recovered possession, by writ of entry or ejectment, the mortgagor is considered, in some sort, a tenant to the mortgagee, and cannot be treated by him as a trespasser.^ There is much discussion in the books as to the nature of the tenancy existing between mortgagor and mortgagee un- der such circumstances, the mortgagor l)eing sometimes debt, aud gives the inorlgagee the beuetit of all the doctriues applicable to bo7ia fid^ou V. Diiuicls, 11 N. H. 274; Hiickius v. Straw, :^4 Me. 1(JG; Sliu- soii V. Ross, 51 Me. 55(5; Bird v. Decker. 04 Me. 550; Hall v. L;iiR'e, 25 111. 277; Doe v. McLoskey, 1 Ala. 708; Bartletl v. Burdeu, 1:5 Busb (Ky.), 45. • llurkrader v.Leiby, 4 01iio St. G02: Orr V. Hadley, :}G N. H. 575; Barilett v. Borden, 14 Busb (Ky.), 45; Glass v. Elli.s..ii,9 N. H. 69; El- lisou V. Daniels, 11 N. H. 274; ivilkins v. Freneb, 20 Me. 111. ■•Cbainberlaiii v. 'rbonipson, 10 Conn. 243. A mortgagor of land, as between biniself and bis mortgagee, bas only an equitable title. He cannot, tberefore, recovv-r in ejectment against tbe mortgagee in i)os- sessiou, after bieacb of tbe condition, or against persons bolding pos- session under tbe mortgage. Brobst v. Broek, 10 Wall. 519. •'■' Cbamberlain V. Tbompson. 10 Conn. 243; Cross v. Itobinson, 21 Conn. 379; Cooeb V. Gerry. 3 Ihur. (Del.) 280. In Illinois, a mort- gagee being tbe owner of ibe f<'e, may. after condition broken, main- tain ejectment against tbe mortgagor. Jitliiisoii V. Watson, 87 111. 53S; Fisber V. Mill mine, 94 111.328. ART. II. aiORTCJAGES IN DIFFERENT STATES. 3(37 the mortgaged })reinisos, answering to an estate in the mortgagee, his riglits and remedies in respect to the same are limited to such as the rules of equity prescribe, and may not be enforced by suit at law."^ Tiiis doctrine is the outgrowth of the equitable idea that a mortgage is merely a security for a debt, and prevails to a greater or less extent in most of the States in which the common-law doctrine of mortgages exist. In New Jersey, it was held that the right to enter was postponed, and the possession was m the mortgagor, until the condition was broken by default inthe payment of the mortgage money .^ But "with this modifi- cation of the rights of the mortgagee, as to the postpone- ment of ability to obtain possession of the mortgaged premises, the nature of the mortgage as a conveyance re- mains as it was at conMnon law'."^ So, in Vermont, it is provided by statute that "every mortgagor shall, until condition broken, be deemed to have, as against the mort- gagee, the legal right of possession to the mortgaged premises, unless it shall be otherwise stipulated in the mortgage deed."* Upon breach of the condition, the mortgagee has a right to immediate possession; and may enter or maintain ejectment therefor.^ -But until he assieils this right, the mortgagor in possession is regarded as the owner of the land, and may use and occupy it without being liable to account to the mortgagee.^ This is sub- stantially the doctrine recognized in Missouri, where it is «aid: "The modern doctrine is well established, that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was originally given; and until the mortgagee enters for breach of the conditions, and in many respects until final foreclosure of 1 2 Wa*hb. ou Real Prop., 4th ed., 105. 2 Sauderson v. Price, 21 N. J. L. G4G. 3 Shields v. Lozear, 34 N. J. L. 501. * Gen. Stats. 1880, § 125S. Mlagar V. Brainard, 44 Vt. 294; Fuller v. Eddy, 49 Vt. 11. See Cbeever v. Rutland, etc. R. R., 39 Yt. G53. « Walker v. King, 44 Vt. GOl ; Hooper v. Wilson, V2 Vt. G95. 368 CONVEYANCING. CH. VIII. the moi'tjiage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and in every respect to deal with the mortgaged premises as the owner, so long as he is permitted to remain in possession."^ After condition broken the legal title passes to the mort- gagee, and he may maintain ejectment for the mortgaged land." To some extent this is true in Mississippi ;'^ also in Delaware.^ And it seems to be the pievailing doctrine that a mortgage, though a conveyance in fee upon condi- tion, is, even after condition broken, and after the legal title passes, merely a security for the debt, which security is extinfjuished, and the title reverts whenever the debt is paid.^ The latter conclusion will necessaril}' follow when- ever the mortgage is regarded as a common-law conveyance on condition, but as a security for the debt, the legal estate being considered as subsisting onl}' for that iTurpose." § 409. The Doctrine of Equity has entirely su[)erseded that of the common law in several of the States, so that a mortfjaije, both before and after a breach of the condition, is regarded as only a lien upon tlie property. It is a mere security of a personal nature, and passes no estate in the land. The title remains in the mortfjagor until foreclosure, subject to the lien of the mortgage. The mortgagee, be- fore foreclosure, has no legal interest in the mortgaged premises, and consequently is not entitled to possession." 1 Kenuett v. Pluinmer, 28 Mo. U."); Woods v. Hildeibrand, 46 Mo. 284. 2W:dcop V. McKiniiey, 10 Mo. 229; Sutton v. Mason, 38 Mo. 121; Johnson v. Houston, 47 Mo. 227; Keddick v. Gressinau, 49 Mo. 389. 3 " Altbouujh the mortgagee has a chattel interest only, yet, in order to render his pledge available, and give him the intended benefit of his security, it is considered as real proi)erty, to enable him to maintain ejectment for the recovery of the land mortgaged." Buckley v. Daley, 45 Miss. 338; Car|)enter v. Boweu, 42 Miss. 28, 49; Hill v. liobertson, 24: Miss 3G8. 4 Hall V. Tiuuieli. 1 ilou.st, 320. •"' Pease v. Pilot Knob Iron Co., 49 Mo. 121, 4 Kent's Com. 194, notes h and c. « Shields V. Lozear, 34 N. ,1. L. 'yOo. ■ Duiton V. Warschauer, 21 Cal. G09. 023 ; Vason v. Ball, 50 Ga. 209; Fletcher v. Holmes, 32 Ind. 497, 513 ; White v. Rittenmyer, 30 Iowa, 208 ; Vanderslice v. Knapp, 20 Kan. 047; Jiobbins v. Sackett. 23 Kan. 304; AKT. II. MORTGAGES IN DIFFERENT STATES. 369 The courts of New York, following the lead of Lord Manstield,^ were the first to move in this direction, by con- sidering a mortffao-e to be a mere security for the debt, and denying the legal character of the mortgagee's title prior to a breach of the condition and a taking of possession by the mortgagee in consequence.^ As in New York, the adoption of equitable principles by the courts of law, has been followed by legislative enactments taking from the mortgagee the right of possession.'"^ Likewise, in other States the same doctrine has, in many instances, been sup- plemented by the total abrogation, by statute, of the com- mon-law doctrine.* The development of this doctrine may Chick V. Willets, 2 Kan. 384; Life Association v. Cook, 20 Kan. 19; Duclaud V. Rosseau, 2 La. Ann. 168; Albright v. Cobb. 34 Mich. 316; Wagar v. Stone, 36 Mich. 364; Humphrey v. Hurd, 29 Mich. 44; Adams V. Corriston, 7 Minn. 456; Hurley v. Estes, 6 Neb. 386; Merritt v.Barth- olick, 36 N. Y. 44; Besser v. Hawthorn, 3 Oreg. 129; Wright v. Hender- son, 12 Tex. 43; Wood v. Trask, 7 AVis. 566; Buck v. Payne, 52 Miss. 271; Buckley v. Daley, 45 Miss. 338; Myers v. Estell, 48 Miss. 373; Central Trust Co. v. Wabash, St. L. & P. B. R. Co., 30 Fed. Rep. 332. 1 Mr. Coventry, in a note to Powell on Mortgages, 266, in commenting upon the doctrine announced by Lord Mansfield in Martin v. Mowlin, 2 Burr. 978, Wren v. Buckley, Doug. 292, and Eaton v. Jacques, 2 Doug. 455, observes that his Lordship obviously considered a mortgage to be even at law a mere security for the debt, and not an actual conveyance. '•But,"' says he, "this view of a mortgage in a court of law is clearlj- erroneous, and hath since been exploded by the universal concurrence of the judges." 2 Jones on Mortgages, § 13, and cases cited. 3 Rev. Stat., § 57, p. 312; Miner v. Beekmau, 42 How. Pr. 36. •* California, Civil Code, 1885, § 2927; Colorado, Civil Code, 1SS7, § 261; Dakota Territory, Rev. Code, 1883, § 1733; Florida, Bush, Dig. Stat., 1872, pp. 611, 612; Georgia, Code, 1873, § 1954; Indiana, G. & H. Stat. 1872, p. 335; Iowa, Code, 1880, § 1938; Kansas, Dassler's Stat., 1876, ch. 68, § 1; Louisiana, Code 1870, art. 3278; Michigan, Annotated Stat. 1882, § 7847; Minnesota, Gen. Stat., 1878, ch. 75.. § 29; Montana Territory, Comp. Stat., 1887, § 371; Nebraska, Comp. Stat., 1885, p. 482, ch. 61, § 35; Nevada, Gen. Stat., 1885, § 3284; New Mexico, Comp. Laws, 1884, § 1593 ; Oregon, Anno. Laws, 1887, § 326 ; South Carolina, Gen. Stat., 1SS2, § 2299; Utah Territory, Civil Practice Act, 1870. § 260; AVashing- tou Territory, Code, 1881, § .546 ; \Visconsin, Rev. Stat., 1878, § 3095. The common-law view of mortgages at one time prevailed in Keutuckj-. and it was then held that a mortgage passes the legal title to real estate to (24) 370 CONVEYANCING. CH. VTTI. be illustrated by the langLia<^c of tiic Supreme Court of California : "It was from a cousideration of the character of the instrument as settled by these decisions, and the modern cases generally, that we were induced to adopt the equitable doctrine as the true doctrine ; and it was from a consideration of the provisions of the statute which led us to go beyond those cases, and carry the doctrine to its legitimate and logical result, and regard the mortuage as a security under all circumstances, both at law and in equity. Mortgages, therefore, executed before the statute, can only be treated as conveyances when that character is essential to protect the just rights of the mortgagee; mortgages since the statute are regarded at all times' as mere securities, creating only a lien or incumbrance, and not passing any estate in the premises."^ The courts in some of the States have gone further in this direction than in others; consequently, there is, to a greater or less extent, the same lack of uniformity in the incidents pertaining to the rela- tion of niorto-aixor and mortgagee in the States in which this doctrine has been adopted, as where the common law prevails. There are, however, certain incidents pertaining to these different theories of the nature of a mortgage, which follow more or less as natural conclusions, and which we shall proceed to notice. § 410. The Consequences Resulting from these Dif- ferent Views of the nature of a mortirage are chieflv the o the mortgagee. Stewart v. Barrow, 7 Bush, 371. But since the adop- tion of the Civil Code and under late decisions of the court of that State, the equitable system prevails, and a mortgage is regarded as a mere security for the debt, the mortgagor being the real owner both in law and equity. Woolley v. Holt, 14 Bush, 791. The English rule that a mortgage conveys the title in fee to the mortgagee is not adopted in Wiscoui^in. It merelj' creates alien on the laud. The decisions in that State to the effect that, if the mortgagee geto the peaceable possession after condition broken, he cannot be ejected by the mortgagor without first tendering the amount due on the mortgage, are no recognition of the English doctrine, but simply of the right of the pledgee to take possession of the pledge if he can. in order to pay himself out of the rent:* and profits, I'.i-inkman v. .Jones, 44 Wis. 408. 1 Dutton V. Warschauer, 21 Cal. 623. ART. II. MORTGAGES IN DIFFERENT STATES. 371 following: Under the common-law view, as the rio-ht of possession follows the right of property, the mortgagee is entitled to possession of the mortgaged premises, unless re- strained by the ternis of the mortgage; and upon default he is always entitled to possession, and may recover it by ejectment. Under the equitable view, upon the same prin- ciple the mortgagor is entitled to possession until fore- closure, unless by express contract he shall give that right to the mortgagee. In the next place, when the interest of the mortgagee is treated as an estate in land, it cannot, un- der the Statute of Frauds, be assigned without a deed or note in writing, signed by the mortgagee or his agent — ex- cept by the act or operation of law, as provided by the third section of that statute. On the other hand, treating the interest created by the mortgage as a mere lien of a personal nature, it can only be assigned by a transfer of the debt, and a conveyance or assignment, by the mortga- gee, of the mortgaged premises, without specifically assign- ing the debt or what is equivalent, would be simply void. Lastly, while under the common-law view of a mortgage, a tender or payment, to defeat the mortgagee's title, must be made at or before the law day, as the day fixed for pay- ment is termed, under the equitable view, payment at any time before sale, or before the time for redemption has expired, including legal costs, will discharge the mortgage, and no re-conveyance is necessary. These, as we have said, are the legitimate conclusions following the different view of the nature of mort<2;ao:es, when carried to their ulti- mate results.^ A partial blending, in some of the States of these two theories has given rise to more or less confu- sion in this respect, in the doctrines of those States. § 411. A Classification of the States in respect to these different views of the nature of a mortgage, for the reason just stated, can only be attempted at a hazard. Yet, as re- marked by Mr. Washburn: "The importance of this classification, if well founded, will be obvious, when it is re- ' See Jones on Mortgage^j, 4th ed,, § 1."). 372 CONVEYANCING. CII. VIII. membcred how frequently, in discussing questions growing out of moi'tfrajres, cases are cited as authorities in the court of one State, which were decided in another in which a dif- ferent system prevails."^ The difficulty above suggested is well illustrated in the fact that such eminent writers on the subject as jNIr. AVashburn and Mr. Jones differ in re- o:ard to this classitication of the States.^ From the cases cited, we assume that the common law system of mortgages prevails in the following States: Ala- bama, Arkansas, Connecticut, Illinois, Maine, Maryland, INIassachusetts, New Hampshire, North Carolina, Ohio, Pennsjdvania, Roode Island Tennessee, Virginia and AVest Virginia.^ That in Delaware, Missouri, New Jersey and Ver- mont, the common-law doctrine has been so modified or blended with that of equity that the mortgagee is net en- titled to possession until after condition broken.* And that in California, Colorado, Dakota Territory, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Michigan, Min- nesota, Mississsippi, Montana Territory, Nebraska, Nevada, 1 2 Wasbb. on lie:il Prop., 4th ed., lOG. 2 See Jones on Mortgages, 4tli ed., §§ 58, 59; 2 Wasbb. on Keal Prop., 4th ed.,106. 3 Welch V. Phillips, 54 Ala. 309; Toomer v. Randolph, GO Ala. 356; Terry v. Rosell, :52 Ark. 479; lieyuolds v. Canal and Banking Co. of X. O., 30 Ark. 520; Chamberlaiu v. Thompson, 10 Conn. 243; Cross v. Rob- inson, 21 Conn. 379; Clinton v. Westbrook, 38 Conn. 9; Carroll v. Bal- lanee, 2(j 111. 9; Harper v Ely, 70 111. 581; Karnes v. Lloyd, 52 111. 113; Ericksou v. Raft'erty, 79 111.209; Maine Rev. Stat., 1883, eh. 90, § 2; Wilkins v. French, 20 Me. Ill; Brown v. Stewart, 1 Md. Ch. 87; An- napolis & E. R. R. Co. V. Gautt. 39 Md. 115; Ewer v. Ilobbs, 5 Mete. 1; Howard v. Robinson, 5 Gush. 119; Xorcross v. Norcross, 105 Mass. 265; Furbush v. Goodwin, 29 N. H. 321 ; Brown v. Cram, 1 N. H. 1G9; Hemp- hill V. Ross, 66 N. C. 477; State v. Ragland, 75 N. C. 12; Ilarkrader v. Leiby. 4 Ohio St. 602; Youngnian \. Elmira, etc. R. R. Co., 05 Pa. St. 278; Tryon V. Mimsou, 77 J'a. St. 250; Carpenter v. Carpenter, 6 R. I 542; Henshawv. Wells, 9 Humph. (Tenn.) 5G8; Vance v. Johnson, 10 /d. 214; Faulkner V. Brockenbrough, 4 Rand. (Va.) 245. * Hall V. Tunncll, 1 Houst. 320; Buckley v. Daley, 45 Miss. 338; John- son V. Huston, 47 Mo. 227; Shields v. Lozear, 35 X. J. L. .501; Sander- son v. Price, 21 X. J. L. 646; Walker v. King, 44 Vt. 601; Hagar v. Brainerd, 44 Vt. 294. AKT. II. MORTGAGES IX DIFFERENT STATES. 373 New Mexico, Oregon, South Carolina, Utah Territory, Washington Territory and Wisconsin, the equitable view of mortgages prevails. The civil law, in force in Louisi- ana, is very similar to the last mentioned doctrine.^ ^ See the statutes cited in note to § 409. 374 CONVEYANCING. CII. IX. CHAPTER IX. FOKM AND EkQII^ITES of a MoiJTCiAOE. Akticle I. What Constitutes a iSlortgage. 11. A Clat^sitieatiou of the Differcut Kiiuls of Mortgages. III. Form Generally. IV. The Granting Part of a Mortgage. V. The Defeasance. VI. Special Stipulations. Vn. The Power of Sale. ARTICLE I. , WHAT CONSTITUTES A MORTGAGE. SECTION. 413. The general requisites of deeds apply to mortgages. 414. What is essential to constitute a mortgage at law. 415. What Avill constitute a mortgage in equity. 416. Parol evidence to prove an absolute deed a mortgage. 417. Whether a mortgage or a conditional sale. § 413. Tlu' General Requisites of Deeds Apply to Mortgages. — A mortgage Avill be vitiated by tlie same causes that an absolute deed Mould be, and to be entitled to registration, is generally required to be executed and acknowledged with the same formalities as other convey- ances of real estates.^ The distinctions in regard to the time of filing mortgages for record in some States, and 'It must be under seal. Bower v. Oyster, 3 Pa. 239; Hebron v. Centre Harbor, 11 X. H. 571. ART. 1, WHAT COXSTITUTES A ^rOItTOAOE. /)75 also as to the method of relinqui.shiujy the ri^ht of home- stead, have been noted in a former part of this work, to which the reader is referred. ^ Attention is also called to the chapter treating of the General Requisites of Deeds, their Execution, Acknowledgment and Registration.- These subjects are introduced here for the special jiurpose of re- minding the reader that the three essential elements to every mortgage are, Jirst, a mortgagor, who must be a per- son or corporation capable of granting, conveying or assigning the land or thing mortgaged, and not disabled by any legal or natural impediment ; second^a. mortgagee, who must be a person capable of receiving a grant or assign- ment of the preaiises;^ and third, a thino^ mortszao^ed,* which must be granted or assigned in that order and man- ner which the law requires, and which is to form the sub- ject of inquiry in the present chapter. § 414. What is Essential to Constitute a Mortgage at Law. — To constitute a morto-aije at law two thino-s are necessary : First, a conveyance of the property; second, a contemporaneous agreement that such conveyance shall be a security. In some of the States, by statute, ever\^ con- veyance made to secure the pajnnent of money or the per- formance of anv other thincfin the condition thereof stated, is held a mortgage. ^ In many of the States, where a con- ve3^ance of real estate is made which by another instrument or writing shall be made defeasible or shown to be by way of mortgage, such other instrument must be recorded there- 1 Ante, §§ 183, 273. ^ Chapters I., III., IV. A mortgage is generally cousidered a deed, and its execution governed by the same laws and formalities. Stimson's Amer. Stat., § 1858. 3 The fact that a mortgagee is a trustee for himself and others, does not change the chai-acter of the instrument as a mortgage. Cormerais V. Genella, 22 Cal. IIG. ■• Everything which is the subject of contract, or which may be granted or assigned, is capable of being mortgaged. Xeligh v. Michenor, 11 X. J. Eq. 539. » X. H. Gen. Laws 1878, ch. 136, § 1 ; Cal. Hitt Code 1876, § 702: Dak. Civ. Code, § 1721; Florida Dig. 1881, ch. 153, § 1. O/b CONVEYANCING. CH. IX. ■with or the grantee takes nothing under the principal con- veyance.^ In others, however, unless the defeasance be recorded, the first conveyance passes an absolute title except as against the maker of the instrument, his heirs or devisees.^ The defeasance, or agreement to reconvey, may be contained either in the instrument of conveyance, or in a separate deed, executed at the same time.'^ But to constitute a mortgage, the conveyance and defeasance must be a part of the same transaction, and must take effect at the same time.* ^Moreover, the defeasance must be an instrument 1 X. Y. Rev. Stat., Part 2, eh. 3. tit. 3; N. J. Rev. Stat. 1877, ch. 21; Neb. Comp. Stat. 1881, Part 1, ch. 73. art. 25; Md. Rev. Code 1878, art. 6G, § 42; Del. Rev. Code 1874, ch. 83, §18; Dak. Civ. Code, § 1740. 2 Wis. Rev. Stat. 1878, § 2243; Mass. Pub. Stat. 1882, ch. 120, § 23; Me. Rev. Stat. 1883, ch. 73, § 9; Penu. Brijrhtley's Purd. Dig. 1872, ch. 1881, §91; Ind. Rev. Stat. 1881, § 2932; Mich. How. Aimot. Stat., § .5G8G; Miun. Gen. Stat. 1878, ch. 40, § 23; Kansas Comp. Laws 1879, ch. 68, § 2; Oregan Gen. Laws 1872, ch. «,§ 22; Dak. Civ. Code, § 1741; Ala. Code 1S7G, § 2168. 3 ^IcT>aughlin v. Shepherd, 32 Me. 143; Shaw v. Erskiue, 43 Me. 371 ; Mills V. Darling, Id. .565; Warren v. Lovis, 53 Me. 463; Blanej^v. Bearce, 2 Me. 132; Archambau v. Green, 21 Miun. 520; Bayley v. Bailey, 5 Gray, 504; Freeman v. Baldwin, 13 Ala. 246; Knowlton v. AValker, 13 Wis. 264; Plato v. Roe, 14 Wis. 453; Walker v. Tiffin Mining Co., 2 Col. 89; Peterson V. Clark, 15 Johns. 205; Dimond v. Enoch, Addison (Pa.), 357; Payne v. Patterson, 77 Pa. St. 134; Kerr v. Gilmore, G Watts (Pa.), 405; Stoever V. Stoever, 9Serg. it R. 434; Colwell v. Woods. 3 Watts. 188; Preschbaker v. Feanian, 32 111. 475; Harbison v. Lemon, 3Blackf. (Ind.) 51; Watkins v. Gregory, 6 Id. 113; Crassen v. Swoveland, ^2 Ind. 427; Baxter v. Dear, 24 Tex. 17. A deed conveying the fee and purporting by its terms to be absolute, although it be expressed to be executed as collateral security for the payment of money, is not a mortgage within the operation of the Maryland code, art. 24, § 29. Snowden v. Pitcher, 45 Md. 260. •» Bennock v. Whipple, 12 ]Me. 346. See Newhall v. Burt, 7 Pick. 157; Swetland V. Swetland, 3 Mich. 482; Clement v. Bennett, 70 Me. 207; Montgomery v. Chadwick, 7 Iowa, 114; Vance v. Lincoln, 38 Cal. 586; Booth v. Hoskios (Cal.), 17 Pac. Re]). 225. In order to create a mort- gage by an absolute deed and a deed of defeasance, the dates of the two instruments need not be the same : it is sufficient if both be delivered at the same time. Harrison v. Phillips Academy, 12 Mass. 456; Xewhall v. Burt, 7 Pick. 157; ^Mclntier v. Shaw. 6 Allen, 83. See Scott v. Henry, 13 Ark. 112. But it is essential that they be delivered at the same time. Kelleran V. Brown, 4 Mass. 443; Kelly v. Thompson, 7 Watts, 401; ART, I. WHAT CONSTITUTES A MORTGAGE. 377 of as high a nature as the deed itself ; and consequently a writing not under seal cannot, at law, operate as a de- feasance of an absolute deed.^ It is not essential that the deed and defeasance should, in terras, refer to each other. If the conveyance and the agreement to reconvey on payment of the sura loaned are of even date, the trans- action is necessarily a mortgage. ^ If the two instruments are of different dates, parol evidence ma}^ be introduced for the purpose of showing that they are parts of the same transaction, and that together they were intended to con- stitute a mortgage.^ It was formerly a common practice to make a mortgage by an absolute conveyance, with a defeas- ance or clause of redemption in a separate deed. The great inconvenience attending this raode of niortgagino; was, Haiues v. Thompson, 70 Pa. St. 434. Where a deed was executed sim- ultaneous!}^ with the grantor's taking from the grantee a bond for re- conveyance upon the re-payment of the money borrowed, it was held that the two instruments constituted a mortgage . Clark v. Lyon, 4G Ga. 202. 1 Kellerau v. Brown, 4 Mass. 443; Flint v. Sheldon, 13 Mass. 444; Cut- lery. Dickerson, 8 Pick. 386; Flagg v. Mann, 14 Id. 467; Scituate v. Han- over, 16 Id. 222 ; Murphy v. Galley, 1 Allen, 107 ; Warren v. Lovis, .53 Me. 463. But see Harrison V.Phillips Academy, 12 Mass. 456; Runlet V.Otis, 2 N. II. 107. The defeasance of an actual deed, executed by an agent for his principal, without a power of attorney, will not convert such deed into a mortgage. Gratz v. Phillips, 1 Pa. 333. But a condi- tion written upon the back of a deed, and not signed, was held to be a part of the deed which was therefore regarded as a mortgage. Whitney v. French, 25 Vt. 663. And see Baldwin v. Jenkins, 23 Miss. 206. ^ Parol evidence of a different understanding by the parties will not, in such case, be received to convert it into a conditional sale. Kerr v. Gilmore, 6 Watts, 405. See Brown v. Nickle, 6 Pa. St. 390. A con- tract purporting to be a sale, by the terms of which the purchaser is to sell the property and out of the proceeds pay an antecedent debt of the seller, with interest and expenses, any excess to be re- turned to the seller, and any deficiency to be made good by him, is, in effect, a mortgage. Cannon v. McXab, 48 Ala. 99. A conveyance with an agreement to reconvey is not necessarily a mortgage. Whether it will be so treated depends upon the circumstances of the case. Hor- bach V. Hill, 112 U. S. 144. 3 Kelly V. Thompson, 7 Watts, 401; Tillsou v. Moulton, 23 111. 648; Preschbaker v. Feaman, 32 111.475; Gay v. Hamilton, 33 Cal. 686; Teal V. Walker, 111 U. S. 242. 378 CONVEYANCING. CH. IX. that if tlie second deed was lost, there appeared to be an absolute title in the mortgagee.^ For many years the almost universal practice has been to insert the condition of de- feasance in the conve3'ance, which renders the transaction less exposed to fraud and deceit. - § 415. What will Constitute a Mortgage in K jjrant.^ § 437. The Grautinj;- Cliuise corresponds to the opera- tive part of a purchase deed, and contains the words which convey the mortgaf^ed property, by grant or by demise or assignment, according as it is freehold or leasehold, to the mortgagee, his heirs and assigns, or to him, his executors, administrators and assigns.- § 438. In Respect to tlie Description of the Premises, the same general rules apply as in case of purchase deeds. Any description which affords sufficient means of identify- ing the land intended, wmII be sufficient to sustain the lien of a mortgage.^ It is, of course, of the greatest impor- tance, as affecting the value of the security, that the pi-em- ises be accurately described. But the fact that the de- scription of the proi)erty is so indefinite as not to pass any title, will afford no objection to the enforcement of the mortgage against the mortgagor personally.'^ Where no rule of law is infrino;ed and the rif^hts of third persons are not prejudiced, courts of equity will, in proper causes, give effect to the mortgages of subsequently ac- quired property.'' Thus it has frequently been held that a mortgage upon an existing railroad may be extended to rolling stock to be subsequently acquired, if an intent to acquire sucii stock and to hold it subject to the mort- 1 Keyes v. Bump (Vt.), 9 Atl. Rep. 598. Aud see Nazro v. Ware (Minn.), 38 N. W. Rep. 359. 2 Dean's Trin. Couv. 387. See ante, §§ 82-85. 3 Ante, § 87, et seq.; English v. Roche, 6 Intl. 02; Blakemore v. Taber, 22 Ind. 10(5; ^J'licker v. Field, 51 Miss. 191; Ilaneock v. Watson, 18 Cal. 137; Morse v. Dewey, 3 N. II. 535; Baker v. Bank of Louisiana, 2 La. Ann. 371 ; Bowen v. Wood, 35 Ind. 208. And see ISinuuons v. Fuller, 17 Minn. 485; Teetsiiorn v. Hull, 30 Wis. 102. * Whitney v. Bucknian, 13 Cal. 530. The unintentional misstatement in a mort<;age of tiie number of the city lot upon which it is given, does not invalidate it. Merviu v. Murphy, 35 Tex. 787. « Beall V. White, 94 U. S. 382 ; Everman v. Robb, 52 Miss. 653. AKT. IV. GRANTING PART OF A MORTGAGE. '6dd gage is sufficiently expressed.^ But a mortgage of after- acquired property can only attach itself to such property in the condition in which it comes into the mortgagor's hands. If it is already subject to mortgages or other liens, the general mortgage does not displace them, though the}^ may be junior in i)oint of time. It only attaches to such inter- est as the mortgagor acquires. ^ It has also been held that additions of a permanent character, by way of improve- ments, on mortgaged premises, made by the owner or mortgagor, are regarded as a part of the mortgaged estate, and may be sold with it,^ The rules for determining what fixtures are covered by a mortgage are much the same as apply between vendors and purchasers. If there be any difference, it is in the greater favor extended to a mortgagee in the aj^plication of the rules of construction. In general, therefore, a mortgage of land covers all fixtures belonging to the realty without any mention of them.* But, as pointed out b}' Mr. Dean, where the mortgajje is of a limited interest in the land, the case may be different. Where a limited owner has placed fixtures upon the land, with a right to remove them, he is possessed of two separate and distinct interests — "a lim- 1 Morrill v. Xoyes, 5G Me. 458; Quincy v. C, B. & Q. K. R. 94 111. 537; Pierce v. Milwaukee, etc., 24 Wis. 551; New Orleans Canal Co. v. Montgomery, 95 U. S. 16. But see Kandolph v. New Jersey West Line R. R. Co., 28 X. J. Eq. 49. But after-acquired lauds, not used in con- nection with the actual operations of a railroad, cannot pass under a general mortgage of the railroad itself, as a part thereof, under the doc- trine of accretions. Calhoun v. Paducah R. R., 9 Cent. L. J. 66. So a mortgage upon an uuplanted crop may be enforced in equity, when the crop matures. Apperson v. Moore, 30 Ark. 56; Arques v. Wasson, 51 Cal. 620; Booker v. Jones, 55 Ala. 266; Jarrattv. McDaniel, 32 Ark. 598; Bell V. Radcliff, 32 Ark. 645. 2 Williamson v. New Jersey Southern R. R. Co., 28 N. J. Eq. 277; Id. 29N. J. Eq. 311. 3 Wood V. Wheeler, 93 111. 153. * Ante, § 94. And see Southbridge Sav. Bank v. Mason (Mass.), 18 N. E. Rep. 406. The fact that a mortgage enumerates some fixtures, but does not enumerate others, affords reason for supposing that these were intentionally omitted and did not pass. Trappes v. Harter, 2 Cromp. & Mees. 153, 177. 400 CONVEYANCING. CH. IX. ited interest in the land, an absolute interest in the fixtures.'* These last have, therefore, in such a case, a separate exist- ence apart from the freehold, and althouofh they will pass without being specially mentioned on an assignment of the whole of a limited interest,^ because the person who has annexed them has, by the assignment, parted with his right of removal, which will therefore be assumed to have been passed to the transferee. The case is different where the limited interest is not entirely parted with, as, for instance, where there is a mortgage b}^ sublease ; |or here the fixtures do not pass unless specifically mentioned,- and the right to remove them will remain, therefore, in the mortgagor. We see then that, as against the mortgagor, the mortgagee acquires a right to the fixtures, although not named, if the mortgage is by way of grant of a fee-simple or assignment of the whole of a limited interest, but that they must be definitely mentioned in order to pass, on a mortgage by demise." ^ Fixtures, except when their ownership accom- panies the fee, being mere chattels, can only be legally mortgaged by complying with the statutory requirements in respect to chattel mortgages. § 439. The Office of the Habendum, as we have seen, is to define the estate conveyed.^ In a mortgage it limits the morto-ao-ee's estate according: to the nature of the mort- gaged premises, and subject to the condition of defeasance which immediately follows, and is next to be considered. 1 Ex parte Reynal, 2 Mont. Dea. & DeG., 443 . 2 Hawtry v. Butlin, L. R. 8 Q. B. 290, 293. 3 Dean's Pr. Conv. 388. * Ante, § 111, et seq. ART. V. THE DEFEASANCE. 401 ARTICLE V. THE DEFEASAXCE. SECTION. Jrl2. The \;sual form of the coudition. •±43. The debt secured. 444. The description of the debt. 445. The time of payment. § 442. The Usual Form of tlie Coudition. ^ — The condi- tion of defeasance usually describes the debt secured, and provides that if the mortgagor or those claiming under him shall pay the same to the mortgagee, his executors, adminis- trators or assio;iis, " then this deed shall be void," Some- times the stipulation is that, "then the said mortgagee will reconvey the property herein described, to the mortgagor, his heirs or assigns." It does not appear that the wording in this respect is of essential importance, provided it is apparent from the whole instrument that it was intended as a security. The substance, and not the form, of the expres- sion is chieHy to be regarded; and an enlarged and liberal view is to be taken of the instrument, in order to ascertain and carry into effect the intention of the parties.- But a deed whose proviso does not contain the ordinary words, "then this deed shall be void," or some equivalent expres- sion whereby it appears upon what event the deed is to be- ^ See Ante, § 53. - Steel V. Steel, 4 Allen, 417. In this case the court says in reference to the mortgage in question : "For although the proviso is inartiticially and imperfectly expressed, it is yet impossible to entertain any doubt as to the real meaning and intention of the parties in the insertion of it in the deed. It clearlj^ imports that the conveyance is made upon a condi- tion upon which the future and continued validitj" of the deed is to de- pend ; and therefore it necessarily follows that the parties intended, either that it should be valid and continue in force if the conditioa should be performed, or that in that contingency it should become inop- erative and void."' And see Lanfair v. Lanfair, IS Pick. 299; Skinner v. Cox, 4 Dev. (X. C.) L. 59. (26) 402 CONVEYAXnXG. Cll. IX. come void, or th:it it is to become voiil in some event, is inopeijitive :is :i mortgage.^ Tiiough it is not requisite tliat the condition of a mortgage should be so completely cer- tain as to preclude extraneous inquiry .- § 443. The Debt Secured. — AVe have already seen that a debt or obli^fition of some sort is essential to a inortfrajre.^ The instrument, being in its nature a security, cannot, of course, become effective as such, unless there is something to be secured by it.*^ But while no conveyance can be a mortgage unless made for the purpose of securing the payment of a debt, or the performance of a duty, either existing at the time of its execution or to be created or arise in the future, it is not essential that there should be any personal liability for the payment or performance of such obligation.^ Nor is it necessary that the debt or duty should be evidenced by any separate written security.^ The validity of a mortgage depends rather u})on the existence of the debt than upon the form of the indebtedness.^ Like every other contract, it must be founded upon a sufficient consideration, and in this respect is governed, for the most part, by the same rules that apply to any contract.^ Consequently, any bene- 1 Adams v. Stevens, 49 Me. 362; Goddard v. Coe, 55 Me. 385. - Youngs V. Wilson, 27 X. Y. 351 . And the fact of the trust of the sur- pUis being declared in a separate and unregistered paper will not vitiate it as a security for the recited debt. Skinner v. Cox, 4 Dev. (X. C.) L. 59. The defeasance may, instead of a mortgage, be a declaration of trust. Vance v. Lincoln, 38 Cal. 586. 3 A)Ue, i-i'SG. * Snavely v. Pickle, 29 Gratt 27. See Eudel v. AValls, 16 Fla. 786. s Hickox V. Lowe, 10 Cal. 197; ITodgdon v. Shannon. 44 X. H. 572. In such case the remedy of the mortgagee is confined to the land alone. Weed V. Covill, 14 Barb. (X. Y.) 242. « Brant v. Robertson, 16 Mo. 129; Carnall v. Duval. 22 Ark. 130; Brookings v. White, 49 Me. 479; Eacho v. Cosby, 26 Gratt. (Va.) 112. ' Ilodgdon v. Shannon, 44 X. H. 572; Jackson v. Bowen, 7 Cow. (X. Y.) 13; Grillin v. Cranston, 1 Bosw. (X. Y.) 281. ** In general the same defenses may be made to an action on a mort- gage, the statute of limitations excepted, that may be made to an action on the debt. Atwood v. Fisk, 101 Mass. 363; Vinton v. King, 4 Allen (Mass.), 562; Bush v. Cooper, 26 Miss. 599. A i)re-existing debt is a good consideration for a mortgage. Moore v. Fuller, 6 Oreg. 272. ART. V. THE DEFEASANCE. 403 fit to the mortgafror or to a stranger, or damage or loss to the mortgagee, rendered or sustained at the request of the morto-ajzor,^ or a liability to loss or damage on the part of the mortirairee, is a sufficient consideration to sustain a mortgage. 2 But a mortgage for a fixed sum, founded upon no consideration except an undertaking to furnish goods, which were never furnished, cannot be enforced, except in the hands of a bona fide purchaser for value. ^ And where a mortgage is made for the purpose of raising money by subsequent negotiation, it has no validity until it is trans- ferred to some one for value.^ So where the contract is one that is prohibited as immoral or against public policy, the mortgage cannot be enforced.^ But if a mortgage given for an illegal consideration has been foreclosed out of court, the land cannot be recovered by the mortgagor^ — unless the law be such that the illegal consideration, when paid, can be recovered back, not merely' in money but in land.'' As a oreneral rule courts will neither enforce such contracts, nor lend their aid to recover money paid upon them. When the parties are equally at fault, the law leaves them exactly where they stand. Both parties are left without remedy, and they must settle their own questions in such cases with- 1 Magruder v. State Bank. IS Ark. 9; Hayden v. Buddensick, 4 Hun (X.Y.),649. 2 Simpson v. Robert, 35 Ga. ISO. 3 Fisher v. Meister. 24 Mich. 447. A mortgage given for future credit is valid onlj- to tlie extent of the advances actually made upon it. and cannot be enforced for a different purpose. Mizuer v. Russell, 29 Mich. 229; McDowell v. Fisher, 2.5 X. J. Eq. 93. ^ And it is then subject to any incumbrance that may have intervened before the negotiation of it. Schafer v. Reilly, 50 K. Y. 61 ; Mullisou's Estate, 68 Pa. St. 212. 5 McLaughlin v. Cosgrove, 99 Mass. 4. And this, whether it consists in the violation of the common law or of a statute. Gilbert v Holmes, 64 111. 548. Thus it has been held that a mortgage, given to secure a note which was in fact made in consideration of Confederate notes,can- not be enforced. Seuseneau v. Saloy, 21 La. Ann. 305. And see Gilbert V. Holmes, 64 111. 548; Henderson v. Palmer, 71 111. 579; Patterson v. Donner, 48 Gal. 369; Peed v. McKee, 42 Iowa, 689. ^ McLaughlin v. Cosgrove, 99 Mass. 4. See Jackson v. Domiuick, 14 Johns. 435; Bissell v. Kellogg, 60 Barb. 617. 404 CONVEYANCING. CH. IX. out the aid of courts.^ lUit somcliiiies contracts are i)ro- hibited for tlie mere protectienof one of the pailios against an undue advantage which the other i>arty is supposed to possess over him. In such case the parties are not regarded as being equally guilty, and so the rule is not deemed ap})li- cable, thouirh both have violated the law. Such a contract may be void as to one of the parties and valid as to the other. ^ A mortgage may also be void in part and valid in part, where a part of the old consideration is illegal and a part is not. Wlien the one can be separated from the other, the mortgage may be enforced for such part as was free from the taint of illegality.^ A mortgage once paid cannot, by parol, t)c made effectual as security for new' liabilities.* Thouirh it has been held that a mortjjagc, which has been satisfied and delivered uj) to the mortgagor without being cancelled, may be again delivered, and thus become a valid security for another purpose, except as against intervening interests.^ The })arties to a mortgage, given to secure a specific sum, cannot, as aijainst the interveninii' rights of others, extend the mortgage to cover other debts ;'^ nor a higher rate of 1 Atwood V. Fisk, 101 Mass. 363; James v. Roberts, 18 Ohio, 54S. 2 Deming v. State, 23 Ind. 41G. 3 Weeden v. Hawes, 10 Conu. 50; Feldmau v. Gamble, 26 N. J. Eq. 494; Johnsou v. Eichardsou, 38 N. II. 353; Rood v. AViuslow, 2 Doug. (Mich.; (J8; Leeds V. Cameron, 3 yumii. 488. See Atwood v. Fislc, 101 Mass. 363. Although the statute makes such an obligation void, a court of equity will require the complainant to do equitj^ by paying or ten- dering payment of the valid notes covered by the mortage, before it will entertain a suit to cause the mortgage to be delivered up to be cancelled as a cloud upon title. "Williams v. Fitzhugh,37 X. Y. 444. ■• Mead v. York, 6 N. Y. 449; .Johnson v. Anderson, 30 Ark. 745. Yet if such agreement has been made, and money advanced by the mort- gagee to the mortgagor, upon the strength of it, the court will not aid the mortgagor, or any one claiming under liim, with notice, to cause the mortgage to be cancelled or released until such additional advances shall have been repaid. Joslyn v. Wyman, 5 Allen, 02. 5 Underbill v. Atwater, 22 X. J. Eq. IG. 6 Stoddard v. Hart, 23 N. Y. 556; Van Wagner v. Van Wagner, 7 X. J. Eq. 27; Schiffer v. Feagin, 51 Ala. 335. And see Townsend v. Em- pire Stone Dressing Co., 6 Duer, 208; Johnson v. Anderson, 30 Ark. 745; Thurman v. .Jenkins, .58 Tenn. 426. ART. V. THE DEFEASANCE. 405 interest.^ Neither can a mortgage be extended by implica- tion to secure any other obligation than that expressly men- tioned. ^ Though a party, dealing with the equity of re- demption, takes it subject to a reasonable construction be- ingplaced upon the mortgage. A change in the form of the indebtedness, as by the renewal of the original note of the mortgagor, does not effect the security.^ A mortgage, in- tended to secure a certain debt is valid in equity for that purpose, whatever form the debt may assume, if it can be traced.* An indorsement upon the mortgage, executed, acknowl- edged and recorded with the usual formalities of deeds, has been allowed to have the effect, as between the parties and subsequent incumbrancers, of extending the condition of the morto:ao:e to secure a further sum.^ But the mort- gagee cannot tack to his mortgage any debt not secured thereby, except it be one occasioned by the default of the mortgagor, and require its payment as a. condition to the rio;ht to redeem.*^ The English doctrine of tacking- does not apply to this country.'^ Yet the rule that the mortgage debt cannot, as against parties in interest, be increased 1 Gardner v. Emerson, 40 111. 296; Burchard v. Frazer, 23 Mich. 224. The maker of a mortgage cannot, as against a third person owning the eqnity of redemjDtion. increase the charge upon the land by confessing a judgment, and thus compounding the interest. McGreadyv. McGready, 17 Mo. 597. But as between the parties, an agreement to increase the rate of interest is valid, forbearance being implied as the consideration. Haggerty v. Allaire Works, 5 Sandf. (X. Y.) 230. 2 Schadel v. St. Martin, 11 La. Ann. 375; Beardsley v. Tuttle, 11 Wis. 74. 3Burdett v. Clay, S B. Mon. (Ky.) 2S7; Bank of South Carolina v. Kose, 1 Strobh. Eq., 257; Enslon v. Friday. 2 Rich. (S. C.) 427; Callard V. Matthews, 10 La. Ann. 233. But a mortgage, given by one to secure the payment, at maturity, of notes executed by another, is no security for renewal notes substituted therefor. Ayres v. Wattson, 57 Pa. St. 3G0. •* Patterson v. .Johnson. 7 Ohio, 225. And see Gault v. McGrath. 32 Pa. St. 392; Bobbitt v. Flowers. 1 Swan (Tenn.), 511. ^ Choteau v. Tliompsou, 2 Ohio St. 114. '' 1 Jones on Mortgages, § 3G0, M Kent's Com. 178. 406 CONVEYANCING. CH. IX. after the execution of the mortfrJige, is subject to the quali- fication that money paid 1)\ the niortf^ao^ee to redeem the premises from tax sale, or any charge which is a para- mount lien upon the })roperty, becomes a part of the mort- gage debt, and may be enforced by foreclosure. ^ Interest, both before and after maturity, is recoverable by virtue of the contract as an incident or i^art of the debt. ^ A mortgage may also be made to secure the payment of a reasonable attorney's fee, incase of a foreclosure, and such a provision is included in the lien of the mortgage as much as the debt itself.^ So also all costs and ex})enses, necessa- 1 Burr V. Veeder, 3 Wend. 412; Faure v. Winans, Ilopk. (X. Y.) 283; Eagle Fire Ins. Co. v. Fell. 2 Edw. Oh. (N. Y.) 031; Erevoort v. Randolph, 7 How. Fr. 308; Kortright v. Cady, 23 Barb. 490; Mix v. Ilotchkiss, 14 Conn. 32: Wright v. Langley, 36 111. 381; Silver Lake Bank V. North, 4, Johns. Ch. 307; Arnold v. Foot, 7 B. Jlon. G6. - Brannon v. Hursell, 112 Mass. 63. The exaction of usurious inter- est does not invalidate the mortgage given to secure the payment of the debt, nor impair the right of the mortgagee to sell the mortgaged prem- ises under a power in the mortgage. The court will, in distributing the proceeds, adjust-the question of interest. Powell v. Hopkins, 38 Md. 1. 3 Rice V. Cribb, 12 AVis. 179; Mosher v. Chapin, Id. 452; Jones v. ScliuliiH'yer.39 Ind. lin;Muntor v. Linn. 61 Ala. 492; Hitchcock v. Merrick, 15 Wis. 522; Pierce v. Kueeland, 16 Wis. 672; Maus v. McKel- lip, 38Md. 231; Sharp v. Barker, 11 Kan. 381; Xelson v. Everett, 29 Iowa, 184; Clawson v. Munson, 55 111. 394; Bronson v. LaCrosse R. R. Co., 2 Wall. 283. Such a stipulation is not usurious. Walsh v. ^Ftna Life Ins. Co., 30 Iowa, 133. But held against public policy in Kentucky. Thomasson v. Townsend, 10 Bush, 114; Rilling v. Thompson, 12 Bush, 310. Where a mortgage deed empowered the mortgagee in the usual manner to sell, rendering the surplus money to tlie mortgagor, "after deducting the costs of sale, and also 8100 as an attorney fee, should any proceedings be taken to foreclose this indenture,'" it was held that such fee could not he recovered upon foreclosure in equity. Sage v. Riggs, 12 ^lich. 313. A stipulation for five per cent, as fees to the attorney for collection, is not to be regarded as imposing a penalty; it merely gives compensation to the mortgagee for expense incurred, owing to the mortgagor's default. Robinson v. Loomis, 51 Fa. St. 78. But where it was shown that the suit for the collection of the note was unnecessary, it was held that the fees could not be secured by tlie creditor. Alexan- drie v. Saloy, 14 La. Ann. 327. And see Foote v. Sprague, 13 Kan. 155. 1"he Supreme Court of Missouri has held that tlie obligation for the pay- ment of money, containing a stipulation for payment of attorneys'fee renders it non-negotiable. First Nat. Bank v. Marlow 71 Mo. 618; Storr V. Wakefield. Id. 622. ART. V. THE DEFEASANCE. 407 ril}^ incurred in enforcing the moi'tage.^ In like nitmner the parties may, hy their original agreement, i)rovide for future advances or liabilities, and when made, such future advances will be covered by the lien of the mortgage. '^ Says Chancellor Kent: "The principle is, that subsequent ad- vances cannot be tacked to a prior mortgage, to the preju- dice of a bo7ia fide junior incumbrancer; but a mortgage is always good to secure future loans, when there is no inter- vening equity."^ The rights of a holder of such a mort- gage, as against subsequent purchasers and incumbrancers, have been the subject of much discussion and seeming con- flict of opinion. The general rule appears to be that where the mortgagee has notice of later incumbrances upon the property, such later incumbrances will take precedence as to all advances made after such notice.* But some courts have held that where the mortgagee was by his contract with the mortgao-or bound to make the advances intended to be secured by the mortgage, he would take precedence of inter- 1 Huid V. Coleman. 42 Me. 18-2; Kawsou v. Hall, 56 Me. 142. A court of equity, where a mortgage authorizes the paj-ment of the expenses of the mortgagee, maj^ V'-^Yi out of funds in his hands, the taxed costs, and also such counsel fees in behalf of the complainants as, in the discretion of the court, it may seem right to allow. Bronson v. LaCrosse R. K. Co., 2 Wall. 283. 2Jarrett v. McDaniel, 32 Ark. 598; Lovelace v. Webb, 62 Ala. 271. In Maryland and Xew Hampshire the sum secured is required by statute to be set out in the mortgage. Gen. Stat. X. H. p. 253, ch. 122, §§ 2, 3; Pub. Lien Laws, Md. 1860, art. 64, § 2. 3 4 Kent Com. 175. And see Sillers v. Lester, 48 Miss. 513; Stevens v. Buffalo, etc. R. R. Co., 45 How. Pr. 104. ^ Spader v. Lawler, 17 Ohio, 371 ; Frye v. Bank of Illinois, 11 111. 367. As to whether the constructive notice, given by registration of such junior mortgage will affect the prior mortgage, see Jones on Mortgages, § 372, and cases cited. Even if the intent to secure future advances is not disclosed by the terms of the instrument, yet if the mortgage is recorded and states a specitic suiu which it is intended to secure, so as to apprise third persons of the extent of the lien which may be claimed under it, it is good for subsequent advances except as against persons acquiring equities prior to the time when such advances are made. Summers v. Roos, 42 Miss. 749; D"Meza v. Generes, 22 La. Ann. 285. And see Far- num V. Burnett, 21 X. J. Eq. 87; Moore v. Ragland, 74 X. C. 343. 408 CONVEYANCING. CII. IX. mediate incumbrances.^ So a mortgage of indemnity to a surety is a lien from the time of its execution and delivery, if tiie liabilit}' has been incurred, or there is a legal obliga- tion to incur the liability. - Whether unliquidated damages can, under any circum- stances, become a proper subject for a mortgage security, has been questioned.^ But courts generall}' treat as mort- gages conveyances conditioned for the performance of any duty, a breach of wbich can be compensated by an award of damaofes.* Of this character, as a ireneral rule, are deeds conditional for the support and maintenance of the mort- gagee, or of a third person.^ Though, when such an instru- ment is spoken of as a mortgage, it must undoubtedly ))e taken in a qualitied sense, as being subject to certain inci- dents which do not, ordinarily, attach to mortgages. Thus, where a father made a convevance of a farm to his son, and at the same time took a mortirace to himself and wife, with a condition l)y whicli the son and his heirs, executors and administrators, were to provide for the maintenance of his parents during their lives, it was held that it was to be in- ferred, as a necessary implication, nothing appearing to the contrary, that the mortgagees w'ere not to enter until the condition w'as broken or waste done, and that the duty to provide for the maintenance of the parents is, under such circumstances, a personal duty of the son, which he ' Boswell V. Wondwiii, 31 Conn. 74; Cox v. Hoxie, 11.5 ]\I:iss. 120; Brinkmeyer V. Bi'owneller, 5.5 Ind. 487. Where there is uo obligation on the part of the mortgagee and such advances or liabilities are merelj' optional with him, if he make such advances or incur such liabilities with notice that the mortgaged property lias been purchased or luiincum- bered by another, the latter is not bound by such mortgage. Ibid. 2 Taylor v. Cornelius, 60 Pa. St. 1S7. And takes precedence of a sub- sequent incumbrance, executed before the mortgagee has paid the debt, so as to become entitled to enforce the mortgage. Watson v. Dickens, 12 Smed. & M. COS. ' Betlilehem v. Annis, 40 X. II. 34. ■* 2 Greenl. Cruise on Keal Prop. 80 n. It rests in the sound discretion of a court, whether a forfeiture shall be relieved bj- treating the iustru ment as a mortgage. Henrj'^ v. Tupper, 2!i Vt. 358. •'- Austin V. Austin, fi Vt. 420. ART. V. THE DEFEASANCE. 409 €tinnot transfei- to third persons and substitute them in his stead, without the consent of the parents; and if he fails to superintend the fullilhiient of it, that will be a breach of the condition.^ So, where a mortirage was made under sim- ilar circumstances, the court said : " It will not do to apply to it the principles which are in force as to an ordinary mortgage for the payment of money. There, when the object of the security is accomplished, it is at an end. It never could have been the intention of the [)arties to these instruments that, if James failed to perform his covenants, which were the sole consideration of the grant to him, and the old man, in consequence of his breach, by leg;d proceed- ings or otherwise, retook possession, after his death the title should revest in James. That would be no security that James would perform his covenants, but an inducement to him to break them.'"'- It may be added that as between mortgagor and mortgagee and their privies, a mortg-ao-e to secure an antecedent or jn-e-existing debt, or a debt subse- quently to be contracted, is perfectly valid, whatever may be its effect as to subsequent purchasers or incumbrancers.^ § 444. The Description of the Debt. — Literal exact- ness in describing the indebtedness is not required in a mortgage security ; it suffices if the description be correct as far as it goes, and full enough to direct attention to the source of correct and full information, without danj^er that the language used will deceive or mislead parties.'* 1 Flanders v. l.amphear, 9 N. H. 201; Bryant v. Erskine, 55 Me. 153. 2 Soper V. Guernsey, 71 Pa. St. 224. Sbarswood, J., in this case observes that : " It is not an uncommon arrangement for a father to make a con- veyance of his farm to one of his sons in consideration of being sup- ported, nursed, and attended during his life. The -wisdom of snch a contract is very questionable, even where the most entire contidence is felt at the time in the affection of the child. * * * q^q ^f j-j^g pyQ consequences, which seems almost invariably to attach itself to such arrangements, is the distressing family discord and lawsuits which spring from them. Many of them have been brought to this court. It is not always easy to administer justice in such cases in conformity to law." 3 Steiuer v. McCall. 61 Ala. 406. * Ricketsou v. Richardson, 19 Cal. 330; Booth v. Barnum, 9 Conn. 286 ; Sheafe v. Gerry, 18 N". H. 245; Horman v. Deming, 44 Conn. 124. 410 CONVEYANCING. CH. IX. The first point to be noticed is that the description should be correct as far as it goes. In other words, the debt must come fairlv within the terms used. It is enousrh if it be described willi reasonable certainty;^ but where there is a total vaiiance between the debt and the mortfra^e, the hitter will be void for uncertainty.- For example, where a mortgage was conditioned to pay " the just and full sum which the maker mio;ht owe the morto^agee either as maker ~ DO or indorser of any notes, bills, bonds, checks, overdrafts, or securities of any kind, given by him, according to the conditions of any such writing obligatory executed by him to the morto-ajjee as collateral securitv," it was held that O O « ~ the instrument called for written evidences of debt, signed by the mortgagor, and could not be made available as a security for a debt not in writing.^ So where a mortgage, correctly describing other debts, mentioned " a note or notes of S. for about $350," it was held that the recital could not be construed to include six notes of S., amount- ing to over $1,500; nor would the words " an account for about $50," include amounts exceeding $900. •^ But it is not required that the mortgage shall set out a literal copy of the instrument secured thereby. It is sufficient if it be described accordino; to its legal effect."' In o;eneral, a mort- O O O ' gage is is not invalid on account of uncertainty in the de- scription of tiic debt intended to be secured, w'hen, upon the ordinary principles allowing extrinsic evidence to apply a written contract to its jjroper subject-matter, the debt in- tended to be secured may be shown ;'' parol evidence is ad- missible to identify the note as the one referred to in the 1 Pearce v. Hall, 12 Bush, 209. 2 And parol evidcuce is inadmissible in au action at law. Follett v. Heath, 15 Wis. C.Ol. •■' Walker v. I'aiue, 31 Barb. 213; liramhall v. Flood, 41 Conn. OS. And see Doyle v. While, 26 Me. 341. ■* Storms V. Storms, 3 Bush, 77. • Aull V. Lee, 01 Mo. 100; Hey wood v. AVingate, 14 X. II. 73; Pitcher V. Barrows, 17 Pick. 301. « Gill V. Pinney. 12 Ohio St. 38; Tousley v. Tousley, 5 Ohio St. 78; Hurd V. Robinson, 11 Ohio St. 232. ART. V. THE DEFEASANCE. 411 mortgaffe.^ Where the condition of the mortoiaire stated that the grantor was indebted to the grantee for moneys loaned, and his liability on divers bills of exchange and promissory notes, and provided that if he discharged them Avithin six months the deed should be void, it was held to be a sufficient description of the debt, since it was capable of being made certain by parol evidence.'- For the same reason, a mistake in describing the debt does not invalidate the security.'^ The part that is incorrect in the description ma}^ be rejected, when enough remains to identify the note or thing to be done, as set forth in the condition.* When sufficient facts are stated to identify the debt with reasona- ble certainty, it is immaterial that some particulars of the description do not correspond precisely with the instrument produced ; it may yet be admitted as sufficiently identified by the description in the mortgage.-^ But if the instrument produced agrees with the instrument in some respects and varies in others, proof that it is the obligation intended to be secured may be required before it can be introduced in evidence as such.^ In the next place it is to be remembered that the descrip- tion must be full enough to direct attention to the source of correct and full information, without danger that the lan- guage used will deceive or mislead paities. It is not essen- tial, as we have seen, that the mortgage should contain a specific description of the debt intended to be secured. Any description, which will put those interested upon in- 1 Melviu V. Fellows, 33 N. H. 401 ; Prescott v. Hayes, 43 N. H. 593. - Pitcher v. Barrows, 17 Pick. 361. The material question is, whether a debt still exists, which the mortgage was executed to secure. Aull v. Lee, 61 Mo. 160. 3 Porter v. Smith, 13 Vt. 492; Tousley v. Tousley, 5 Ohio St. 78. ^ Gilman v. Moody, 43 N. H. 239. 5 Paine v. Benton, 32 "VVis. 491. The correspondence of date, amount, parties, rate of interest and maturity, coupled with possession of the note, raises a presumption of identity, throwing on the mortgagor the burden of showing another note of like description. Jones v. Elliott, 4 La. Ann. 303. 6 Robertson v. Stark, 15 N. H. 112. 412 CONVEYANCING. CH. IX. quiry, will 1)0 siilHcioiil .' The imturo and aniounl of in- debtedness secuiH'd may even be expressed in terms so general, that subsequent purchasers and attaching creditors must look beyond the deed, to ascertain both the existence and amount of the debt.- Thus, a mortgage to secure all existing debts, without specifying them, was held not to be invalid for want of certainty in the amount secured.^ So a condition to pay " all sums that the mortgagee may be- come liable to })ay b}^ signing or otherwise," is not too in- definite, and includes any le^al liabilitv incurred.^ But when a mortjzaffe is given to secure an ascertained d('l)t, it is always desirable that the amount of the debt should be stated; and in some of the States, a failure to specify the amount has been held to invalidate the security as against subsequent incumbrances.^ But where the amount of the debt may be ascertained by reference to another deed or instrument, and it is so recited in the mortgage, it will be sufficient, and is enough to put subsequent purchasers upon inquiry.^ In drawing mortgages, care should be taken that the description of the debt and rate of interest shall not be such {IS to mislead purchasers as to the amount secured ; althouo;h, as ag^ainst the inortuairor and one claiming under him with notice, the note referred to in the mortgage is competent evidence to exi)lain and fix the amount of the debt; ' l)ut as against a hona fide purchaser without notice, the lien of the mortgage cannot be extended bv such evi- 1 Ilurd V. Robinson, 11 Ohio St. 232. - Gibson v. Seymour, 4 Vt. 518. 3 Michigan Ins. Co. v. Brown, 11 Mich. 265. < Soule V. Albee, 31 Vt. 142. '•> Pearce v. Hall, 12 Bush, 209. See Stoughtou v. Pasco, 5 Conn. 442: Pettibone v. Griswold, 4 Conn. 158; Shepard v. Shepard, 6 Conn. 37. •'Kellogg V. Frazier, 40 Iowa, 502; Soniersworth Savings Bank v. Roberts, 38 N. H. 23; Jones on Mortgages, § 344, citing Pike v. Collins, 33 Me. 38. Where the note put in evidence does not correspond with its description in the mortgage, the former controls and cures the de- fective description. Cleavenger v. Beath, 53 lud. 172. " Soniersworth Savings Bank v. Roberts, 38 N. H. 2G: Bassett v. Bas- ART. V. THE DEFEASANCE. 413 clence, beyond what is expressed upon its face. A mort- ' gage to secure f urture advances should give all requisite in- formation as to the extent and certainty of the contract, so that a junior creditor may, by inspection of the record and by common prudence and ordinary diligence, ascertain the extent of the incumbrance.^ Some of the cases seem to require that a limit shall be fixed, to which such advances may reach ; but it is generally held to be sufficient, that the mortgage indicates the source of full information as to the state of the incumbrance. To secure priority, however, such a mortgage should either be taken for a specific sum of money, sufficiently large to cover the amount of the floating debt intended to be secured, or should specifically mention the sums thereafter to be advanced.- § 445. Tlie Time of Payiueut of the Debt or perform- ance of the duty, secured by the mortgage, should be stated, in order that it may be known with certainty when a breach of the condition occurs. If no time is stated, under the general rules of construction the debt is due on demand, and the mortgage may be enforced at once.^ When the time of payment is fixed in the morti>:ao;e, the morto-aoor is not entitled to other notice.^ It is to be remembered, however, that the maker of a note, which is payable by instalments, at future times certain, with interest, is entitled to grace both on principal and interest; and the condition of a mort- gage given to secure such a debt is not broken until the expiration of the grace which is allowed upon the note.^ When no time is specified for the payment of interest, and no circumstance exists indicating a different time, the pre- sett, 10 X. H. 70; Boody v. Davis, 20 jST. H. 140; Grafts v. Crafts, 13 Gray, 360. The mere fact that the mortgage recites a greater iadebted- ness than actually existed at the time of its execution, is not conclusive of fraud. Bell v. Prewitt, G2 111. 3G1. 1 Witczinski v. Everman, 51 Miss. 841. - Ante, § 443. And see Washb. onEeal. Prop., 4th ed., 151, 152; Jones on Mortgages, § 3G4, et seq.; Summers v. Roos, 42 Miss. 749. ^Caruell v. Duval. 22 Ark. 136; Brookings v. \yhite, 49 Me. 479. ^ Ing v. Cromwell, 4 Md. 31. 5 Coffln v. Loring, 5 Allen (Mass.), 153. 414 CONVEYANCING. ClI. IX. sumption is that it is payable at tlic .same time as the debt. But where the language was such as to indicate that some periodical payment was intended, it was hehl that tiiis was sutiicient to i-iit a })urchas('r upon in(|uiry. and that i)arol evidence was admissible to })i-ove when payments were in- tended to be made.^ A failure to pay any instalment, either of interest or principal, constitutes a default, uiuler the meaning of a condition which authorizes a sale upon the happening of any default, and the mortgagee nuiy thcreui)on enter and take possession, or m:iy maintain an action to foreclose.'- But unless the mortgage so provides, the [)roceeds of a sale can- not, in general, be applied to the i)ayment of any sum not then due; though it is not necessary that thei'e should be an ex))ress or formal agreement to that effect, in order to authorize the mortgagee to receive payment of the Avhole debt, and not merely what is due at the time of the sale, if it is not then all due. If it appears from the whole instru- ment that such was the intention, the sale may l)e made upon an\- default, and the })roceeds applied to the whole del)t, though a i)art of it is not yet due.-^ Where such is the intention, it is the usual and better practice, however, to insert a clause in ])ower of sale mortgages, to the effect that upon any default the mortgagee may sell, and out of the money arising from the sale, retain all sums then secured by the mortgage, whether then or thereafter payable.* Im 1 Ackeiis V. AVinstou, 22 X. J. Eq. 444. 2 Whitcher V. Webb, 44Cal. 127; Estabrook v. Moiiltou, !) Mass. 258; Cassidy v. Caton, 47 Iowa, 22; Stanhope v. Mauuers,2 Eden, 197; West Branch Bank v. Chester. 11 Ta. St. 282; Goodman v. Cin. & Chicago K. R. Co., 2 Disjnej' (Ohio). 170. But seeHarshaw v. McKesson, 06 N. C. 2GG, where it was held that a court of equity will never decree a fore- closure until the period limited for payment has expired. See also Hough V. Doyle, SBlackf. :{00. 3 McLean v. Presley, ^O Ala. 211; Pope v. r)urant,2G Iowa. 233. ^ Where the trustee in a deed of trust, given to secure the payment of certain notes, is empowered by the ternas of the deed to sell all the trust property when the fir^. 3 Bank ofU. S. v. Waggener, 9 Pet. 399 ; Stelle v. Andrews, 19 N. J. Eq. 409; Tyler on Usury, 103; Lloyd v. Scott, 4 Pet. 205; Jones v. Berryhill, 25 Iowa, 289; Condit v. Baldwin, 21 N. Y. 221. The agreement must be made with full consent and knowledge of the contracting parties. Marsh v. Martindale, 3 Bos. & P. 154. But aside from mistake or acci- dent, evidence will not be allowed to show that the uTortgagee did not intcMid to violate the statute. Fielder v. Darrin, 50 X. Y. 437. •• Fitzsimons v. Baura, 44 Pa. St. 32; Birdsall v. Patterson, 51 X. Y. 43; Nichols v. Fearsou, 7 Pet. 109; Schermerhorn v. Talman, 14 N. Y. 93; Corcoran v. Powers, G Ohio St. 37; Pomeroy v. Ainsworth, 22 Barb. 119; .Jordan v. Mitchell. 25 Ark. 2.5S. ■^ Culver v. Bigeluw, 43 Vt. 219; Xichols v. Fearson, 7 Pet. lOi); Wil- liams V. Reynolds, 10 Md. 57; Newman v. Williams, 29 Miss. 212. ART. VI. SPECIAL STIPULATIONS. 419 less amount than the interest, the transaction will be con- sidered a loan.^ It is a general rule that a contract, which in its inception is unaffected by usury, can never be invali- dated by any subsequent usurious transaction.- And on the other hand, when the contract was originally usurious, and there is a substitution by a new contract, the latter will generally be considered usurious."^ The ordinary commis- sions allowed by the usages of trade may be charged with- out tainting a contract with usury, and any valid and legiti- mate charge or expense will be upheld; but it must appear that the commissions are charged for other services, and are not merely a device to evade the law.* If the agent of the mortgagee, unknown to the latter, and without his authority, in making a loan exact a bonus to himself as a commission for making the loan, this will not constitute usury in the principal, nor affect the security in hands. ^ 1 Viekery v. Dicksou, 62 Barb. 272 ; Corcoran v. Powers, 6 Ohio St. 37 ; Bynum v. Rogers, 4 Joaes (N. C), 399. The question is largely one for the jury. Williams v. Keyuolds, 10 Md. 57. 2 Nichols V. Fearsou, 7 Pet. 109; Williams v. Reynolds, 10 Md. 57. A parol promise by mortgagor, made after maturity of the mortgage, upon consideration to pay a higher rate of interest, is valid, but is not binding on persons purchasing parcels of the mortgaged premises be- fore maturity. Burchard v. Frazer, 23 Mich. 224. 3 Bell V. Lent, 24 Wend. 230; Viekery v. Dickson, 35 Barb. 96; McCra- ney V. Alden, 46 Barb. 272; Bridge v. Hubbard, 15 Mass. 96. ^ Where a mortgage contains a stipulation that the mortgagor shall pay not only the debt secured by the mortgage and interest thereon, but also, in case of foreclosure, the costs "and fifty dollars as liquidated damages for the foreclosure of the mortgage," held, that the stipulation for the payment of said fifty dollars as liquidated damages is void, and that a judgment rendered under such a stipulation for fifty dollars as attorney fees is erroneous. Foote v. Sprague, 13 Kan. 160. sCondit V.Baldwin, 21 N. Y. 219; Bell v. Day, 32 X. Y. 165. lu Palmer v. Call, 7 Federal Reporter, 737, McCrary, C. J., says: "Doubtless, in general, the intent of an agent actmg within the scope of his authority may be imputed to the principal. But it is settled be- yond question that if any agent in good faith makes a loan for another, and without the knowledge or authority of his principal, and for the agent's own benefit exacts more than legal interest, the loan is not thereby rendered usurious. In such case the law does not impute the knowledge and the intent of the agent to the principal."' And see cases cited. 420 CONVEYANCING. CH. IX. liiU whore the agent exacts the bonus lor his [)rincipul, the lender, and the agent of the borrowei- assents to its reserva- tion, il will be usni'ioLis.^ Tlie i)raetice of reserving the interest on negotiable paper at llie time of making a h)tin, although its effect is to cause the borrower to pay more than the legal rate, is very ancient and has generallv been sanctioned by law.'- So also 1 Estevez V. rurdy, Glluu, 46. And see Algur v. Gardner, 54 N. Y. 3G5. 2McGillv. Ware, 5 111. 21 ; Goodrich v. Keyuolds, 31 111. 490; Man- hattan Co. V. Osgood, 15 Johns. 168; New York Fire Ins. Co. v. Ely, 2 Cow. 678; Fleckner v. Bank of the U. S., 8 Wheat. 339; Maine Bank v. Butts. 9 Mas?. 49; Tholeu v. Duffy, 7 Kan. 405. The older cases in En- gland heldjthat such a practice was usurious. Barnes v. Worlick, Cro. Jac. 25. Later cases, however, established the contrary doctrine (lAoyd V. Williams. 2 W. Bl. 792; Floyerv. Edwards, Cowp. 112), although it was claimed that the custom should be confined to bankers and those who deal in bills of exchange or promissory notes by way of trade. Marsh v. Martindale, 3 B. & P. 154. Though the weight of authority in this country seera.> to favor the proposition stated in the text, there has been much opposition to it. Savage, C. J., in The Bank of Utica v. Wager, 2 Cowen, 757, says: "This privilege of deducUug the interest by way of discount, I apprehend, is confined to bankers and those who deal in bills of exchange or promissory notes by way of trade. This is so, at least, in England."' In that case there are calculations and also a table of the differences between discount and interest, by wliicli in one instance it appears that the difference on .$1,000 for fifteen years, at 6 per cent., is §.537.80, and he says: '-AVere the question upon this prac- tice res intefjra, I should think it a palpable violation of the statute," but he adds, after citing the cases of The Manhaltan (Jempany v. Os- good, supra, and Fleckner v. Bank of U. S., supra. "Both courts found their decision upon the practice of bankers and commer- cial convenience, and the point may therefore be considered as settled until the legislature alters it." Chancellor Kent, in Dun- ham V. (Jduld, 10 Johns. 373, denies the whole doctrine and says: ••It is perfectly idle to talk of a custom of merchants to take a commis- sion above a legal rate of interest on the exchange of notes. The cus- tom of merchants is not applicable to such a case. It is not a matter of trade and commerce within the meaning of the law merchant, and if there were such a local custom iu New York, it would l)e null and void, and could not be set up as a cover or pretext to trample down the law of the land, 'i'he money lenders throughout the country might as well set up a i)ractice of their own, and then plead it in bar of the statute." ART. VI. SPECIAL STirULATIONS. 421 where the interest is calculated upon the debt and included in the inorto-ao-e in excess of the strict le^al i'io:ht.i Although courts will rarely, if ever, as between debtor and creditor, enforce an executory contract for the pay- ment of compound interest, yet the payment of it is not necessarily in a lef]^al sense the payment of usury; and if a debtor knowingly, understandingly and unconditionally pays it under no peculiar circumstances of oppression, it cannot be recovered back.- The Supreme Court of the United States has held that interest warrants or coupons draw interest after payment of them is unjustly neglected or refused.^ In some of the States, it is now provided by statute that compound interest may be contracted for ; and in others the objection to such a contract has been removed by the repeal of the usury laws.'* When a mortgage is executed in a different State from "O' 1 Spencer v. Ayrault, 10 N. Y. 202. 2 Culver V. Bigelow, 43 Vt. 255. In general, compound interest will not be allowed unless by express agreement made after sucb interest is due. Force v. City of Elizabeth, 28 N. J. Eq. 404. And see Hastings V. Wiswall, 8 Mass. 455; Henry v. Flagg, 13 Mete. 04; Doe v. Warren, 7 Me. 48; Bannister v. Roberts, 35 Me. 75; Banks v. McClellau, 24 Md. G2; Andrews V. Poe, 30 Md. 485; Van Husan v. Kaneuse, 13 Mich. 303; Leonard v. Villars, 23 HI. 377; Niles v. Commissioners, 8 Blackf. 1.58; Averill Coal Co. v. Verner, 22 Ohio St. 372; Connecticut v. Jackson, 1 Johns. Ch. 13; Forman v. Forman, 17 How. Pr. 255; Rose v. City of Bridgeport, 17 Conn. 243; Doe v. Vallejo, 29 Cal.385; Stone v. Bennett, 8 Mo.41 ; Stoner V. Evans, 38 Mo., 401 ; Stokeley v. Thompson, 34 Pa. St. 210; Childers v. Deane, 4 Rand. 40G; Pindall v. Bank of Marietta, 10 Leigh, 481. But it has been held in some of the States that when inter- est is payable in instalments, as semi-annually, intei-est will be allowed upon failure to pay such instalments when due. House v. Tennessee College, 7 Heisk. 128; Talliaferro v. King, 9 Dana, 331; Bledsoe v. Nixon, 69 N. C. 89; Bratton v. Allison, 70 N. C. 498; Peirce v. Rowe, 1 N. H. 179; Townsend v. Riley, 46 ?f. H. 300; Wheaton v. Pike, 9 R.I. 132; Lanahan v Ward, 10 R. I. 299; Austin v. Imus, 23 Vt. 280; Preston V. Walker, 26 Iowa, 205; Gibbs v. Chisholm, 2 Xev. & M. 38; Wright v. Eaves, 10 Rich. Eq. 582; Lewis v. Paschal, 37 Tex, 315. 3 Aurora City v. West, 7 Wall. 82 Thomson v. Lee, 3 Wall. 327. 4 Comp. Laws Mich. 1871, § 1637; Laws Minn., 1S77, ch. 15; Rev. Stat. Mo., 1879, vol. 1, § 2728; Waples v. Jones, 02 Mo. 440; Civil Code of Cal., 1873, § 1919. 422 CONVEYANCING. CII. IX. that in which the land is situated, in respect to the requisites of its execution, so far as it is designed to affect the real estate, the hnv of the phice where the hmd is situated gov- erns. Piut in so far as the contract is })ersonal, the general ruK' is, that the law of i)lace where it is made must con- trol.^ In respect to interest and usurv laws the general rule is that the contract is to be construed with reference to the law of the place where the debt is payable.- Where no place of payment is specified, the contract is presumed to be payable where the parties reside and the contract is made, althoufjh the land be situated in another State. ^ It is com- petent, however, for the parties to stiputate for interest with reference to the laws of either the place of contract or the place of payment, provided the provision be made in good faith, and not as a cover for usury.'* § 450. Covenant to Keep the Premises in Repair. — A covenant that the mortgagor will keep the premises in a fair state of repair is sometimes inserted in a mortgage, and when so inserted is usually made a part of the condition. Such a covenant frequently becomes of importance in pre- venting a depreciation in the value of the mortgaged prop- erty by reason of a failure to repair, as the mortgagor is not otherwise bound to keep the premises in repair,'' Says Chancellor Kent: " There is no instance in which a court of equity has undertaken to correct permissive waste, or to compel the mortgagor to rei)air ; though cases of negligence rapidly impairing the security, without any overt act what- ever, would address themselves with peculiar force to the 'Dnucaii v. Helm, 22 La. Ann. 418. ■ Peck V. Maj'o, 14 Vt. 33; Duucau v. Helm, 22 La. Anu. 418; Vinson V. Piatt, 21 Ga. 135; Kennedy v. Knight, 21 Wis. 340. And see Stickney V. .Jordan, 'tS Me. lOG. Where a contract is made payable in another State for the purpose of evading the usury laws of the State where the coutvact is executed, the law of the place of contract decides the fate of the security. Andrews v. Pond, 13 Pet. 78; Mix v. Madison Ins. Co., 11 Ind. 117. 3 Cope V. Alden, 53 Barb. 350; «. c, 41.X. Y. 303. •• Townsend v. Kiley, 46 N. H. 300. 5 Campbell v. Macomb, 4 Johns. Ch. 534. AKT. VI. SPECIAL STIPULATIONS. 42S courts of eqiiit}^ in New York, since the mortgagee is left to guard his pledge against such contingencies, by his own provident foresight and vigihmce in making his contract, or to seek for aid in the enhirged discretion of a court of equity, which wouhl interfere for his indemnity in special cases, in which justice manifestly required it."^ But an injunction will lie against a mortgagor in possession of the mortgaged premises, to stay waste, by which the security is impaiied.'- § 451. Covenant for the Pajinent of Taxes. — Taxes upon lands under mortgage, and which constitute a lien upon the same, are assessed to the mortgagor if in posses- sion, and are to be paid by him.^ But in order to avoid an accumulation of an incumbrance paramount to that of the mortgage, it is usually provided by way of condition that the mortgagor shall pay all taxes and assessments levied upon the premises. And a breach of such condition is as effectual to o-ive the morto-ao'ee a ris^ht to enforce his mort- gage, as a breach of the condition to pay any instalment of interest or principal.^ A stipulation, similar to that which is sometimes used to enforce the payment of interest, may also be applied to taxes, namely : that, upon default in such payment, the i)rincipal debt shall become due, and such a 1 4 Kent's Com. 162. In some of the States, if the assignee of the mortgagor I'emove tixtures from the land, or cut down and carry away timber growing thereon, he is liable to the mortgagee in an action of trespass quare clausum f regit for their value. Stowell v. Pike, 2 Me. 387; Smith V. Goodwin, Id. 173; Page v. Kobinson, 10 Cush. 99. But as a general thing the mortgagee has no power in a court of hiw to prevent or obtain damages for waste committed by the mortgagor. Cooper v. Davis, 15 Conn. .550; Peterson v. Clark, 15 Johns. 205. 2 Brady v. Waldron, 2 .Johns. Ch. 147; Cooper v. Davis, 15 Conn. 556. 3 Parker v. Baxter, 2 Gray, 185; Kilpatrick v. Henson (Ala.),l South. Rep. 188. Xotice and proceedings requisite to enforce their payment by sale are to and with the mortgagor as owner. Ralston v. Hughes, 13 111. 469; Kortright v. Cady, 23 Barb. 490; Coombs v. Warren, 34 Me. 89; Beltram v. Villere (La.), 4 South. Rep. .506. •* Pope V. Durant, 26 Iowa, 233; Harrington v. Christie, 47 Iowa, 319. 424 CONVEYANCING. CH. IX. provision will be sustained.' l>nt wluTe the provision is lliMl th(> mortiragor shall pay the taxes and assessments upon the luoitgaged premises, and. in dcrault of so doing, that the mortgagee mav discharije tiie same, and eoUect them as a ))art of the mortixage, the failure of the mortirafror to pay the taxes is not such a brencli of the condition of the mortrraire as will <>ive the mortirnoec the rio-ht to foreclose and collect the whole anujunt secured.- We have seen that llic mortgagee may pay the taxes levied upon the premises, and that the amount so paid becomes a lien under the mort- gage; and this is true whether the mortgage so provides or not.'^ l^ut a covenant by the mortgagor for the payment of all taxes assessed upon the premises, cannot be enforced after the mortgage debt is discharged. And in this respect the effect is the same, whether the mortgagor voluntarily pays the mortgage debt, or the mortgage is discharged by foreclosure and sale. Tiuis, where the mortgagee purchased the premises at the foreclosure sale for less than the amount of the judgment, and the deficiency was paid l)v the mort- gagor, and the mortgagee was afterwards obliged to redeem the premises, wdiich had been sold for certain taxes assessed 1 Ante, § 445 ; O'Counor v. Shipinan. 48 How. Pr. 126 ; Stanclift v. Nor- ton. 11 Kan. 218. And see Sharp v. Barker, 11 Kan. 381; Medlej^ v. Elliot, (j-i 111. 5:}2. 2 So held, where the mortgage further provided that upon default in the payment of principal or interest, or of the taxes as provided, the mortgagee might sell, and out of the proceeds of the sale retaiu the whole debt and interest together with '• such taxes and charges as shall have been paid l>\ him." To give that right, it is essential that the holder of the mortgage shall have paid off and discharged the assess- ment or tax, otherwise no monej'- has become due which the mortgagee is entitled to retain on a sale, Williams v. Townsend,31 N. Y. 411. ^ Ante, § 443; Sharp v. Barker, 11 Kan. 381; Sidenberg v. Ely, 43 Amer. R.']i. 1G3; Ilorrigan v. "Wellmuth, 77 Mo. 542. Where one holds the legal title as security and purchases the tax certiticates, he holds those in trust also, and is entitled to interest on their amount. Fisk v. Brunette, 12 Amer. Law lleg. (X. S.) 194. But see Williams v. 'J'own- send, 31 X. Y. 411 . where it is held that a n)ortgagee. who buys the uioi't- gaged premises at a tax sale, does not thereby pay the taxes and dis- charge the lien; but is entitled to hold the title thus acquired with all the rights and incidents which the law attaches to it. ART. VI. SPECIAL STIPULATIONS. 425 upon tlicm between the execution of the mortgage nnd the foreclosure sale, it was held that the niortijao-or could not be compelled to pay the mortgagee the amount of the taxes so paid.^ § 452, Covenant to Keep the Premises Insured. — When the property consists of buildings, it is usual that the mort- gagor covenants to keep them, so long as the mortgage lasts, insured against tire in a certain sum, for the benetit of the mortorafjee.- A breach of the condition attached to such covenant is, of course, as effectual to work a forfeit- ure and to authorize a foreclosure of the mortgage, as the breach of any of the covenants and conditions heretofore mentioned.^ The mortgagee may, however, waive the for- feiture, and effect the insurance himself, in which case he is entitled to credit for the premiums paid.* In the absence of anv provision authorizins; the mort- gagee to insure, or obliging the mortgagor to do so, an in- surance effected b}^ the mortgagee cannot be charged to the mortgagor.^ The mortgagee, however, has an insurable interest and may take out a policy in his own behalf,*' In which case the mortgagor has no claim to the insurance 1 Hitchcock V, IMerrick, IS Wis. 357. 2 Ttie stipvilatiou for insurance for the mortgagee's benefit, being in- tended to afford security supplementarj^ to and connected with the mort- gage, and to keep the mortgaged propertj" itself so far intact as a means of security as to perpetuate the safety of the mortgagee's interest in case the buildings should burn, is in equity a sort of adjunct to the mortgage and is binding on the mortgagor and all others in his shoes with notice. Miller v. Aldrich, 31 Mich. 408. 3 When a mortgagor covenants in the mortgage to insure the improve- ments on the mortgaged premises for a specific sum, his failure to insure for that sum constitutes such a default as will justify the mortgagee in selling the premises imder a power contained in the mortgage, and it does not impair the mortgagee's right that the covenant was impossible of execution. Walker v. Cockej% 3S Md. 75. •* Fowley v. Palmer, 5 Gray, 549; Leland v. CoUver, 34 Mich. 41S. 5 Saunders v. Frost, 5 Pick. 259; Dobson v. Land, 8 Hare, 216. •^ The insurance of the mortgage interest is not an insurance of the debt, but of the interest of the mortgagee in the property, upon the safety of which depends his security. Excelsior F. Ins. Co. v. Roj'al Ins. Co. of Liverpool, 55 N. Y. 343, 357. 426 CONVEYANCING. CH. IX. money as a payment of the mortgage debt; hiil must pay the whole amount of the debt to the mortgagee.^ But when insurance is effected by tiie moitgatrce under author- ity contained in the mortgage, or the mortgagor's covenant to insure, and at his expense, the mortgagor is entitled to have the insurance money api)lied to the discharge of the mortgage. 2 And on the other hand, if there is no covenant or agreenient in the mortgage that the premises shall be insured for the benefit of the mortgagee, the mortgagor may insure for the full value of the property, and recover the sura insured. =^ The mere fact that the mortgage covers the property insured and the insured is personally liable for the debt, gives the mortgagee no corresponding claim to the insurance monej^ It is not attached or an incident to his mortgage. It is strictly a personal contract for the benefit of the mortirairor, to which the mortgagee has no more title than any other creditor.^ But when the mortgage con- tains such a covenant, if the mortgagor takes out a policy in his own name and fails to assign it, or make it payable to the mortgagee, the latter is regarded as having an equi- table lien upon the proceeds of the policy, to the extent of his interest.-"' And this was so held, although the provision .was that the mortga";ee. in default of the mortgairor's insur- 1 White V. Brown, 2 Cush. 412; King v. State Mutual Fire Ins. Co., 7 Cush. 1; Bean v. Atlantic & St. L. K. Co., 58 Me. 82. Tliough, if the debt had been paid at tiie time of thy loss, the niortga,iiee"s insiirable interest being terminated, he would have no claim to tlie insurance. Jones on Mortgages, § 421; King v. State Mutual Fire Insurance Co., T Cush. 1. - Waring v. Loder, i53 X. Y. 5S1. The policy in effect is furnislicd by the mortgagor. The mortgagee receives tlie nuiuey in the first place to apply to the mortgage debt, and then he is trustee for tlie mortgagor for the balance left in his hands. Fowle}' v. Palmer, 5 Gray, 549. ^ His insurable interest continues so long as he has a right of redemp- tion. Illinois F. Ins. Co. v. Stanton, 57 [11. 354; Stephens v. 111. Mut. F. Ins. Co., 43 111. 327; Strong v. Manufacturers Ins. Co., 10 Pick. 40. •• Columbia Ins. Co. v. Lawrence, 10 Pet. 507; Carpenter v. Washing- ington Ills. Co.. IG Pet. 495; Nichols v. Baxter, 5 K. 1. 491 ; Nordyke Co. V. s. 419; Dwinel v. Perley, 32 Me. 197; Warren v. Homestead, 33 Me. 256; Stone V. Locke, 46 Me. 445. A party, to whom one of several promissory notes secured by a mortgage has been indorsed, but no assignment of the mortgage made, may levy on the equity of redemption to satisfy a judgment recovered [by him on the note. Andrews v. Fiske, 101 Mass. 422. 5 Bryant v. Damon. 6 Gray, 564; Young v. Miller, Id. 152; Crane v. March, 4 Pick. 131 ; Cutler v. Haven, 8/c?. 400; Warden v. Adams, 15 Mass. 233; Edgerton v. Young, 43 111. 404. * Graham v. Newman, 21 Ala. 497. But if the mortgage itself is as- signed in proper form, the legal title of the mortgagee passes to his as- signee, and proceeding at law to enforce the mortgage must be in the name of the assignee. 454 CONVEYANCING. CH. X. the codfi requires all actions to be brought in the name of the real party in interest. The same is true of any assign- ment, defective in the formal requisites of its execution. ^ § 471. Under the Equitable View of the I^atvirc of a Mortj?ag-e, a conveyance of the mortgaged premises by the mortfjaojce, without an assisrnment or transfer of the mort- gage debt, is simply void. The interest of the mortgagee is a mere chattel interest inseparable from the debt.- And not being regarded as real estate, it does not require the formalities of a conveyance of real estate for its transfer,^ but will pass by an assignment of the mortgage debt as fully and effectually as if transferred by deed.* The debt is the princi])al, and the mortgage an incident; and an assignment of the debt is an assig-nment of the mortgasre.^ This doctrine is practically recognized in most, if not all, of the States; for even where the legal title does not pass, the mortcagee holds it in trust for the owner of the debt, and cannot transfer it to another to be used for a different 1 PartriJge v. Partridge, 38 Pa. St. 78. 2 Swan V. Yapel, 35 Iowa, 248; Southeriu v. Mendum, 5 N. II. 420; Ellisou V. Daniels, 11 N. 11. 274; Weeks v. Eatou, 15 X. H. 145 ; Wilson V. Troup, 2 Cow. 195 ; Jackson v. Willard, 4 Johns. 41 : Jackson v. Bron- son, 19 Johns. 325; Pope v. Jacobus, 10 Iowa, 262; Sangster v. Love, 11 Iowa, 580; Peters v. Jamestown Bridge Co., 5 Cal. 334; Carter v. Ben- nett, 4 Fla. 283; Johnson v. Cornett, 29 Ind. .59; Bailey v. Gould, Walk. (Mich.) 478; Bell v. Morse, 6 X. H. 205; Merritt v. Bartholick, 36 X. Y. 44; Cooper v. Newland, 17 Abb. ("N. Y.) Pr. 342; Dearborn v. Taylor, 18 X. H. 153; Hobson v. Roles, 20 X. H. 41 ; Furbush v. Goodwin, 25 X. H. 425; Sims v. Hammond, 33 Iowa, 368; Delano v. Bennett, 90111. 533. ■^ Dougherty v. Randall, 3 Mich. 581. The lien of a mortgage (under the equitable view) is not an estate in land and does not pass by a con- veyance of the land alone without the assignment of the debt. Mack y, Wetzler, 39 Cal. 247. ^ Page V. Pierce, 26 X. H. 317; Southerin v. Mendum, 5 X. H. 420; Smith V. Moore, 11 X. H. 55; Rigney v. Lovejoy, 13 X. H. 247; Blake v. Williams, 30 X. H. 39; Holmes v. McGinty, 44 Miss. 94; Kurtz v. Spon- able, 6 Kan. 395; Mulford v. Peterson, 35 X"^. J. L. 129; Byles v. Tome, 39 Md. 463. •^ Emanuel v. Hunt, 2 Ala. 190; Cullum v. Erwin, 4 Ala. 452; Graham V. Xewman, 21 Ala. 497; Center v. P. A; M. Bank, 22 Ala. 743; Ord v. McKee, 5 Cal. 515; Bennett v. .Solomon, 6 Cal. 134; Crow v. Vance, 4 Iowa, 434; Bank of Indiana v. Anderson, 14 Iowa, 544; McClure v. ART. II. ASSIGNMENT OF THE MORTGAGE. 455 purpose.^ Perhaps the most difficult and important ques- tion, involved in the distinction between these two thories, is that \vhich arises upon a discharge of the mortgage Burnes, 16 Iowa, 591; Cornog v. Fuller, 30 Iowa, 212; Bowling v. Cook, 39 Iowa, 200; Vaudercook v. Baker, 48 Iowa, 199; Lucas v. Harris, 20 HI. 105; Vausant v. Allmon, 23 111.30; Pardee v. Lindley, 31 111. 174; Mapps V. Sharpe, 32 111.13; Garrett v. Packett, 15 Ind. 485; Blair v. Bass, 4 Blackf. (Ind.) 539; Croft v. Bunster,9 Wis. 503; Miles v. Gray, 4 B. Mon. (Ky.) 417; Burdett v. Clay, Sid. 287; Scott v. Turner, 15 La. Ann. 346; Cooper v. L^mann, Walk. (Mich.) 251; Briggs v. Hannowald, 35 Mich. 476; Martin Y. McReyuolds, 6 Mich. 70; Nelson v. Ferris, 30 Mich. 497; Dick v. Mowry, 17 Miss. 448; Lewis v. Starke, 18 Miss. 120; Laberge v. Chauvin, 2 Mo. 179; Chappell v. Allen, 38 Mo. 213; Pottery. Stevens, 40 Mo. 229; Whittenaore v. Gibbs, 24 N. H. 484; Downer v. Button, 26]Sr.H. 338; Johnson v. Hart, 3 Johns. Ch. 322; Lawrence v. Kuapp, 1 Root (Conn.), 248; Jackson v. Blodgett, 5 Cow. 202; Hj-ujan v. Devereux, 63 X. C. 624; Paine v. French, 4 Ohio, 318; Perkins v. Sterne, 23 Tex. 561; Langdon v. Keith, 9 Vt. 299; Fisher v. Otis, 3 Chaud. (Wis.) S3;Martiueau v. McCollum, 4/(^. 153;Hagermanv. Sutton (Mo.), 4 S. W. Rep. 73; Kuhns v. Baukes, 15 Xeb. 92; Bell v. Simpson 75 Mo. 485; O'Neil v. Seixas (Ala.), 4 South Rep. 745; Conn. M. L. I. Co. v. Talbot, 113 Ind. 373. As to the law of Georgia see Winstead v. Bing- ham, 14 Fed. Rep. 1. And an assignment of part of the debt carries the security i^ro tanto. Phelan v. Olney, 6 Cal. 478; Anderson v. Baum- gartner, 27 Mo. 80; Stevenson v. Black, 1 N.J. Eq. 338; Johnson v. Brown, 31 N. H. 405; Swartz v. Leist, 13 Ohio St. 419; Gower v. Howe, 20 Ind. 396; Keyes v. Wood, 21 Vt. 331; Herring v. Woodhull, 29 111. 92. The holders of the notes first maturing are entitled to be paid tirst from the proceeds of the mortgaged property. Walker v. Schreiber, 47 Iowa, 529. 1 Welsh V. Goodwin, 123 Mass. 71; Jordan v. Cheney, 74 Me. 359; Morris v. Bacon, 123 Mass. 58. In the latter case, A. made a promissory note payable to the order of B. and executed to him a mortgage of land as security therefor, which was duly recorded. B. indorsed the note to C, and afterwards assigned the mortgage to D. , and delivered to him an- other note similar in terms to the one described in the mortgage. Both C. and D. acted in good faith, and each paid a valuable consideration to B. Held., that C. was entitled in equity to an assignment of the mort- gage from D. But the assignee, having only an equitable assignment of the mortgage, cannot maintain ejectment. Kilgour v. Gocklej', S3 111. 109. Nor a writ of entry. Dwiuel v. Perlej^, 32 Me 197; Young v. Miller, 6 Gray, 152; Bryant v. Damon, Id. 564; Gould v. Newman, 6 Mass. 239; Warden v. Adams, 15 Mass. 232. And where the mortgagee has possession, by virtue of his mortgage, or where he has the right to possession, a conveyance of the mortgaged premises would be valid to transfer that right. Pickett v. Jones, 63 Mo. 195. 456 CONVEYANCING. CH. X. entered by the mortgao^ee, after an assignment of the debt, as between the assignee and a bona fide purchaser of the mortgaged premises, without notice of the assignment. Where the interest of the mortiraiiee is regarded as an estate in hind, and a transfer of that interest a conveyance of real estate within the meaning of the recording acts, the question is relieved of much of its difficulty. In such case the record of an assignment duly made is notice to all the world, except the mortgagor, his heirs and personal repre- sentatives; and a failure toiecord the assignment would, of course, postpone the rights of the assignee to those of a purchaser without notice. ^ And in case of a transfer of the debt without a formal assignment of the mortgage, the mortirairee beine: a trustee of the legal estate, a discharge of the mortgage entered by him would be effectual, and binding upon his assignee, in favor of a party acting in good faith, and without notice of the equitable rights of the assignee. On the other hand, the interest of a mort- eagee beino- rejrarded as a mere chattel interest, which will pass by a transfer of the debt, an assignment of such inter- est is not a conveyance or assignment of real estate, and consequently is not, in general, within the language of the recording acts.- And a mortgagee, having parted with his interest in the security by a transfer of the debt, cannot discharge the mortgaged premises from the lien of the mortoraire.^ It follows, therefore, under this view of the law, that an assignment made for a valuable consideration would be good as against a subsequent bona fide \)ViVc\vA^(iV, lEly V. Scofield, 35 Barb. 330; Henderson v. Pilgrim, 22 Tex. 464. 2 Mott V. Clark, 9 Pa. St. 399; Goff v. Deiiny, 2 Phila. 275; Pratt v. Bank of Bennington, 10 Vt. 293; Hoyt v. Hoyt, 8 Bosw. (N. Y.) 511. But see Phillips v. Bank of Lewiston, 18 Pa. St. 304. The equitable as- signment of a mortgage, (i. e., by the transfer of the mortgage debt,) need not be rcicorded to entitle the assignee thereof to the mortgage lien as against a subsequent assignee of the mortgage, claimiug uHder an as- signment executed and recorded. Byles v. Tome, 39 Md. 461. •■'McCormick v. Digby, 8 Blackf. 99; Vandercook v. Baker, 48 Iowa, 199; Gordon v. Mulhare, 13 Wis. 22. ART. II. ASSIGNMENT OF THE MORTGAGE. 457 although the assignment be not recorded.* These are the legitimate conclusions to which the two different views of the nature of a mortgage lead. But they have not always been followed in the course of decision in the different States. In some of the States an assijjnment has been held to be within the language of the recording acts, where the interest of the mortgagee is regarded so little like an estate in land as to pass by a transfer of the mortgage debt.^ § 472. Rights and Liabilities of Assignees.^ — The ques- tion of how far the assignee of a mortgage is bound by the actual state of the account between the mortgagee and mortgagor, or in other words, whether he may claim what appears to be due upon the face of the mortgage, or only what is really due, after deducting all payments and offsets, is one that has been much discussed and upon which the authorities are by no means uniform. The general rule is, that the assignee takes the mortgage, subject to all the equities between the original parties, especially if he has been guilty of negligence, or circumstances exist which would tend to put him upon inquiry as to the rights of the mortgagor.* The rule rests upon the doctrine of the com- 1 Wilson V. Kimball, 27 N. H. 300. But see Conn. M. L. I. Co. v. Tal- bot, 113 lad. 373. 2 Phillips V. Bank of Lewiston, IS Pa. St. 394. See Givan v. Doe, 7 Blackf. 210; Williams v. Birbeck, 1 Hoff. Ch. 369; Fort v. Burch, 5 Denio, 187; Henderson v. Pilgrim, 22 Tex. 464; Fosdick v. Barr, 3 Ohio St. 471; Swartz v. Leist, 13 Ohio St. 419. 3 See 22 Cent. L. J. 130, for an interesting discussion of this question. * Johnson V. Carpenter, 7 Mini. 176; Burbank v. Warwick, 52 Iowa, 493; Bouligny v. Fortier, 17 La. Ann. 121; Crane v. Turner, 67 X. Y. 437; Nichols V. Lee, 10 Mich. 526; Kamena v. Huelbig, 23 N. J. Eq. 78; Dunn v. Seymour, 11 N. J. Eq. 278; Cumberland Coal & Iron Co. V. Parish, 42 Md. 598; Andrews v. Torrey, 14 N. J. Eq. 355; Union Nat. Bank v. Pinner, 25 N. J. Eq. 495; Hartley v. Tatham, 10 Bosw. (N. Y.) 273; Twitchell V. McMutrie, 77 Pa. St. 383; Williams v. Love, 2 Head, 80; Wood V. Thomas, Id. 160; Vredenburgh v. Burnet, 31 N. J.Eq,229; Earnest v. Hoskine, 100 Pa. St. 551 ; Moffat v. Hardin, 22 S- C. 9 ; Briggs V. Langford (N. Y.), 14 N. E. Rep. 502. And see Godeffroy v. Cald- well, 2 Cal. 489. The assignee of a mortgage is affected by facts invali- dating the acknowledgement of the mortgage, if he takes it without in- quiry of the mortgagor, a married woman, if there was any defense. 458 CONVEYANCING. CH. X. mon law that a mortgage, so far as it is a debt, or a security for a debt, is a chose in action and not assignable ; and that the assignee should stand no better in equity than in law,^ But where the mortgage note is negotiable in form, it is, of course, assignable by indorsement; and the debt, being the principal thing, imparts its character to the mortgage, which is only an incident. This is the doctrine recognized in a majority of the States. In such States the assignee of a mortiraire securins; a neo;otiable note, who takes it in good faith before maturity, takes it free from any equities exist- ing between the original parties.^ But the rule, it is to be remembered, ai)plies to such mortgages only as are collateral to negotiable notes. ^ A bond not being a negotiable instru- McCandless v. Engle, 51 Pa. St. 309. So, fraud in prociu-iny a note and mortgage may be set up against the assignee in an action upon tliem, as well as against the person to whom they were made. Marshall v. Bil- lingsley. 7 Ind. ^.oO; Farmers' Bank v. Douglass, 11 Smed. i!c M. 469; Daubury V. Kobinson, 14 N. J. Eq. 213; Chamberlain v. Barnes, 26 Barb. 160. But a mortgagor who has paid nothing can claim no equi- ties, as against the assignee of the mortgage, by reason of payment made by his grantee of the equity of redemption to the mortgagee, who bad, under a pretended claim of right, wrongfully obtained possession of the securities from a bailee of the assignee. Chase v. Brown, 32 Mich. 225. The rule, that the assignee of a mortgage takes it subject to equities, does not embrace equities or defenses springing from defaults or even fraud of the assignor, committed subsequent to the assignment, and which had no existence, and were simply possibilities at the time of the assignment. Bush v. Cushman, 27 N. J. Eq. 131. A mortgagor who has enabled the mortgagee to sell the projierty by furnishing a cer- tificate that he knows of no offset to it, on the faith of which an inno- cent purchaser has paid value for the mortgage, will not be allowed to set up an offset between him and the mortgagee against tlie purchaser. Weil V. l-'ischer, 42 N". Y. Superior Court, 32. The assignee takes it sub- ject to all equities between the mortgagor and mortgagee, but not to those between the mortgagor and a prior assignee. Reineman v. Robb, 98 Pa. St. 474. 1 Matthews v. Wallwyu, 4 Yes, 118. See Carpenter v. Longan, 16 Wall. 271. 2 Carpenter v. Longan, 16 \Vall. 271 ; Reeves v. Scully, Walk. (Mich.) Ch.24S; Dutton V. Ives, 5 Mich. 515; Bloomer v. Henderson, 8 Mich. 395; Taylor v. Page, 6 Allen, 86; Sprague v. Graham, 38 Me. 328; Pierce v. Fauuce, 47 Me. 507. 3 Reeves v. Scully, Walk. Ch. 248; Russell v. White, Id. 31; Nichols ART. II. ASSIGNMENT OF THE MORTGAGE. 459 ment, an assiojnee of a bond and niortjraor 3 Ogle V. Ship, 1 A. K. Marsh. 287; Reed v. Lansdale, Hard. (Ky.) 6. * Ante, § 478. ^ Jenness v. Robinson. 10 X. H. 215. " On a bill to redeem, the morttjajj-ee is liable to account for the rents and profits received from the date of his entry into possession under tbe mortgage, and not merely from the date of the mortgagor's demand. Dela V. Stanwood, 62 Me. 574. A prior mortgagee, under a mortgage upon a term of years, wlio takes possession of tlie premises under a purchase of tlie fee from the mortgagor, who bad acquired the fee after be made the mortgage, is not to be regarded as a morigagee in posses- sion, and as such accountable for tbe rents and profits to a junior mort- gagee of the same term. Rogers v. Herron, 92 111. .583. When the mortgagee has not refused to account and there is no dispute as to tbe 474 CONVEYANCING. CH. XI. of the mortgagee's linbilit}' , and what items of expense, in- curred ill respect to the mortgaged estate, he Avill be en- titled to charge to the mortgagor, the authorities are by no means uniform. The general rule is that the mortgagee is accountable for the actual receipts of the net rents and profits, and nothing more, unless by his wilful default or gross negligence the receipts have been diminished.^ By taking possession, he imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would with reasonable diligence have received.- On the other hand, he is entitled to be allowed for all necessary expenses incurred in the exercise of reasonable care and prudence in the management of the estate; such, for in- stance, as the payment of taxes :^ insurance, when paid for the mortgagor;^ or a prior incumbrance;^ and for all rea- sonable and necessary repairs.*"' A mortgagee in possession is bound to make all reason-- able and necessary repairs upon the mortgaged premises,, and will be responsible for the damage occasioned by any amount due on llie luortgufie :i bill in equity to redeem cannot be main- tained. Eastman v. Thayer, GO N. H. 408. 1 Balnbrid^ce v. Oweu, 2 J. J. Marsh. 4G5; Van Biiieii v. Olmstoad, 5 Paige, !J; Bell V. Mayer, etc., 10 Paige, 4!); Strong v BlaniMiard, 4 Allen, 538; Anthony v. Rogers, 20 Mo. 281; Bailey v. Myrick, 52 Me. 135: Milliken v. Bailey, Gl Me. 317; Harper v. Ely, 70 111. 581; Mon- tague v. Boston & Albany R. R., 124 Mass. 242; Blum v. Mitchell, 59- Ala. 535; Turner v. Johnson (Mo.;, 7 .S. AV. Rep. 570; Pinneo v. Good- speed (111.), 12 N. E. Rep. 19G. A mortgagor is entitled to all rents and profits accruing after tender of redemption. Parmer v. Pariiiei-, 74 Ala. 285. 2hhacffcr v. Chambers, 6 N. J. Eq. 548; Benham v. Rowe, 2 Cal. 387. 3 Taxes, when paid by the mortgagor, usually become a lien under the mortgage. Kortright v. Cady, 23 Barb. 400; Robinson v. Ryan, 25 N. Y. 320; Strong V. Blanchard, 4 Allen. .538; Harper v. Ely, 70 111. 581; Roberts v. Fleming, 53 111. 19G; Bluui v. Mitchell, 59 Ala. 535. < Ante, § 452; Fowley v. Palver, 5 Gray, 549. 5 Harper v. Ely, 70 111. 581. <■• Strong V. Blanchard, 4 Alien, .538; Xeesom v. Clarkson, 4 Hare, 97; Adkins v. Lewis, 5 Oreg. 292; Harper's Appeal, 04 Pa. St. 315; Roberts- V. Fleming, .53 111. 196. ART. I. KI'JDEMPTION. 475 wilful default or gross neo;lect in this respect: but the nat- ural effects of waste and decay from time, he will not be bound to repair,^ What are reasonable and necessary re- pairs depends upon the particular circumstances of each case. And although the mortgagee is not bound to make improvements beyond what were strictly necessary, it is a question of frequent occurrence whether he shall not be entitled to compensation for such improvements. With few exceptions, it may be said to be a general rule that he is not entitled to charge for beneficial and permanent im- provements put upon the mortgaged premises beyond what were required to kee[) them in necessary repair.- Though where he has done so in good faith, supposing that he was the absolute owner of the estate, he will generally be en- titled to compensation for such improvements. ^ The mort- gagee is not to be charged with increased rents and profits arising from the use of any permanent improvements made by him.^ It may be added that the mortgagee is not, in general, entitled to any compensation for his trouble in managing the estate, although there is an agreement between the parties to that effect .-^ Though in a few of the States a reasonable compensation has been allowed.*^ In Massa- chusetts a mortgagee in possession will be allowed, as com- pensation for managing the property, five per cent, on the rents collected."^ ' Dexter v. Arnold, 2 !Sumn. 108. 2 Harper's Appeal, 64 Pa. St. 316; Moore v. Cable, 1 Johus. Ch. 385; McCarron v. Cassidy, 18 Ark. 34; Hidden v. .Jordan, 28 Cal. 301. 3 Troost V. Davis, 31 Ind. 34; Koberts v. Fleming, ,")3 111. 198; Miner v. Beekman, 50 X. Y. 337; Bacon v. Cattrell, 13 Minn. 194. •* Bell V. Mayor, etc., 10 Paige, 49. ^Breckenridge v. Brooks, 2 A. K. Marsh. 339; French v. Baron, 2 Atk. 120; Godfrey v. Watson, 3 Atk. 517; Moore v. Cable, 1 Johns. Ch. 388; Eaton V. Simonds, 14 Pick. 98. But reasonable pay to an agent for taking care of the mortgaged property may be allowed. Turner v. Johnson (Mo.), 7 S. W. Kep. 570. 6 Gibson v. Creliore, 5 Pick. 14G; Tucker v. Buffum, 16 Pick. 46; Wa- terman V. Curtis, 26 Conn. 241. " Gerrish V. Black, 104 Mass. 400; Montague v. Boston & Albany E. Co., 124 Mass. 242. 476 CONVEYANCING. CH. XI. § 481. Contribution to Re«leeni. — It is a well established rule in equity, that where the estates of two or more per- sons are subject to a common incumbrance, and one pays the whole for the benefit of both, he shall have the rif^ht to hold the whole of the estate thus redeemed, until the other party shall pay an equitable portion of the sum paid for the common benefit; and in certain cases the party who paid the incumbrance may in equity enforce contribution from the other. ^ The right to enforce contribution exists only when the equities of the parties are equal. For in- stance, if there was an obligation resting upon the i)erson who paid the incumbrance to pay the whole debt, he would not be entitled to contribution, although the other i)arty may have been benefited by the payment. On the other hand, if the ol)ligation to pay the debt rested upon one party and the other party paid it, the latter would not be entitled to contribution, but would be subrogated to the rio-hts of the mortirairee: while, if the ))arties were under equal obligations to pay their own proportion of the debt, the party paying the whole debt would be entitled to con- tribution from the other in proportion to the value of his estate.^ It follows that a mortgagor, who has sold a por- tion of the land cohered by the mortgage by a warranty deed, cannot claim contribution of the ])ur(lias('r, because he himself is liable for tiie whole debt. And the heir of the mortjjaffor is under the same obligation.'^ Where the mortgagor conveys the whole of the e(uiity of redemption in separate parcels to different persons by simultaneous deeds, the grantees stand upon an equal footing, and one who pays the incumbraiice is entitled to contribution from the others."^ But whether several jjcrsons, who have suc- ' Gibson V. Creboro, .5 Pick. 14G; Stoiy Eq. Jur., § 477; Stevens v. Cuoper, 1 Johns. Ch. 425; Cbeesebiough v. Millard, /d. 409; Cbase v. Woodbury, 6 Cush. 143; Salem v. Edgeiiy, 33 N. H. 46. 2 Stevens v. Cooper, 1 Johns. Ch. 425; Gibson v. Crehore, 5 Pick. 152; Allen V. Clark. 17 Pick. 47; Salem v. Edgerly, 33 N. H. 50; Aiken v. Gale, 37 X. II. 501. 3 Jones on Mortgages, § 1090. ■» Stevens v. Cooper, 1 Johns. Ch. 425; Johnson v. White, 11 Barb. 194; ART. II. PAYMENT. 477 cessively purchased portions of the mortgaged estate, shall be liable to contribution, is a (luestion upon which the authorities are not agreed.^ Questions of very great difficulty frequently arise in marshaling the burden according to the equities of differ- ent claimants, in order to preserve a just proportion among those who are bound in good conscience to a just contribu- tion. The amount that each part owner shall be obliged to contribute to redeem his share of the estate must depend, of course, upon the })eculiar circumstances and substantial equity of each case. ARTICLE II. PAYMENT. SECTION. 483. The effect of payment or teuder before and after default. 484. As to the sutiiciency of a tender. 485. What constitutes payment. 486. Presumption of payment. 487. yubrojj;ation. § 48o. The Effect of Paymeut or Tender before and after Default.^ — It is a familiar principle of the common law that the performance of the condition of a mortgage, accordinof to its lejjal effect, defeats the estate of the mort- gagee and revests the title in the mortgagor, without any written release of the mortgiige or re-conveyance of the mortgaged premises. When payment is made on or before the law day, no release is needed except as evidence of the Taylor V. Bassett, 3 N. H. 294; Aiken v. Gale, 37 X. II. 501; Bates v. Euddick, 2 Iowa, 423; Bailey v. Myrick, 50 Me. 171. 1 For a collection of the cases ^^ro and cun see 2 Washb. on Real Prop., 4th ed., 200, 220. - See 15 Cent. L.J. 408. 478 CONVEYANCING. CH. XI. fact, and to remove the apparent incumbrance fioni the record. If the mortgagee is in possession, the mortgagor may resume the same, either by entry or ejectment, with- out any such release, and will be in possession of the same estate as if no mortfjiiffe had been executed.' Or if a lawful tender be made at the law day and re- fused, it has the effect to discharge the mortijaire; though if tliere is a personal obligation, the debt may still be re- covered by an action at law.'- But at common law a ten- der made after a breach of condition does not operate to discharge the mortgage. "^ And even payment and accept- ance of the mortgage money, after the law day has expired, does not alone revest the title in the mortgagor. The es- tate having been forfeited at law, a conveyance is neces- sary to revest it.* Therefore, where payment is made after 1 Merrill v. Chase, 3 Allen, :539; Furbush v. Goodwin, 2.5 N. II. 425; Grilliu V. Lovell, 42 Miss. 402; Erskine v. Towuseud, 2 Mass. 493. "The act of payment in the country, ante vel apud diem, saves the forfeiture of an estate held by a conveyance defeasible on a condition subsequent. No record of such an act is necessary to make the estate a fee simple estate in the grantor or mortgagor, as against all persons claiming by a sub- sequently acquired title." Per Bigelow, C. J., in Groverv. Flye, o Allen, 543. A wife's right to dower, relinquished by her, in a mortgage of property, attaches as soon as the mortgage is paid. Atkinson v. Stew- art, 4G Mo. 510; Atkinson v. Angert, Id. .")15. 2 Martindale V. Smith, 1 Q. B. 389; Columbian Building Association v. Crump, 42 Md. 192; Ilershej^ v. Dennis, 53 Cal. 77. A tender of the amount due upon a mortgage, if made in such a manner that the holder of the mortgage undei'stands it at the time, as a present, absolute and un- conditional tender thereof, operates ipso /acto, to discharge the lien of the mortgage, though the tender be not thereafter kept good. Potts v. Plaisled, 30 Mich. 149. If the party refusing, subsequently agrees to accept, and demands payment of the money i^rcviously tendered, and the party who made the tender is not then ready to pay it, interest must run on as if no tender had been made until the money is paid or brought into court. Columbian Building Association v. Crump, 42 Md. 192. 3 Currier v. Gale, 9 Allen, 522; Perre v. Castro, 14 Cal. 519; Cross v. Robinson, 21 Conn. 379; Smith v. Kelly, 27 Me. 237; Shield v. liOzear, 34 X. .1. L. 49G. But serves to lay the foundation for a bill to redeem. Rowell V. Michell, 6S Me, 21. ■* Phelps V. Sage, 2 Day, 151 ; Doton v. Russell, 17 Conn. 146; Stewart V. Crosby, 50 Me. 130. The same is held ujjon a construction of the ART. II. PAYMENT. 479 condition broken, and there has been no release of the mortijage, the mortp;agee being in possession, the mortga- gor cannot maintain a writ of entry, ^ or ejectment,^ against him; but, if necessary, must resort to equity for a release of the conveyance. In equity, a mortgage, being regarded as a mere security for a debt, can have no existence after the debt has been discharged.'^ Consequently in those States in which the equitable doctrine of mortgages has been adopted, payment or tender of payment, after the condition of the mortgage is broken, at any time before the mortgage is foreclosed or the right of redemption has become barred, is equivalent to payment or tender at the day mentioned in the condition, and the lands are thereby discharged of the incumbrance.* Upon payment of the mortgage debt, or anything which amounts to payment, the title to the mortgaged premises is in the raorto-asor, without any release or conveyance.^ But the rule that a mortgage is satisfied by an extinguishment of the debt secured by it, does not apply where the debt is merely barred by the statute of limitation, or by a certifi- cate in bankruptcy.*' The above statement is subject to the qualification also that, income of the States, where payment .statute in Mississippi. "Wolfe v. Dowell, 13 Smed. & M. 103; Smitli v. Otley, 2GMiss. 291. 1 Dyer v. Tootbaker, 51 Me. 380. - Smith V. Vincent, 15 Couu. 1. 3 Ante, § 407. 4 Johusou V. riberman, 15 Cal. 287; Svvett v. Horn, 1 X. H. 332; Ca- rutliers v. Humphrey, 12 Mich. 270; Jackson v. Crafts, IS .Johns. 110; Arnot V. Post, 6 Hill, 65; Kortright v. Cady, 21 X. Y. 343; Farmers, etc. Co. V. Edwards, 26 Wend. 541; Hartley v. Tatham, 26 How. Pr. 158. ■5 Rogers v. De Forest, 7 Paige. 272; .facksou v. Davis, 18 Johns. 7; Hatfield v. Reynolds, 37 Barb. 612; Gritlin v. Lovell, 42 Miss. 402. Where a note secured b.y a mortgage was indorsed by the mortgagee, who was afterwards compelled to pay it, it was held that this -was not such a payment as discharged the mortgage. Rogers v. Traders' Ins. Co., 6 Paige, 583. But payment of the mortgage debt from the funds of the debtor extinguishes tlie mortgage. Kiiiley v. Hill. 4 Watts I't S. 426; Perkins v. Dibble, 10 Ohio, 433; Shepherd v. MLClain,18 N.J. Eq. 128. 6 Bush V. Cooper, 20 Miss. 599; Chamberlain v. Meeder, 16 N. H. 381. 480 CONVEYANCING. CH. XI. operates as a discharge of the mortgafre, a tender after the law day lias only the effect to stop the accruing of interest and to {)rotect the debtor from costs. ^ While in other States, tender of the amount due on a mortgage after the law day is a discharge of the lien just as much as payment is; though the land is only discharged from the mortgage, the debt remains.- § 484. As to the Sufliciciicy of a Tender. — It is a gen- eral rule that a tender, to be effectual, must be made by the debtor, or some one authorized by him to make it.^ A mortjrairor, although he has sold and transferred the mort- gaged estate, remains a debtor and may make a good tender. And a [)urt-liaserof the mortgaged premises, who has assumed to pay the mortgage and thereby made the debt his own, may also discharge the lien by a tender of the amount due. But it has been held that one who merely buys subject to the mortgage has only a right to redeem, which he must do by actual })ayment, or by bringing tlu; money into court for tlie purpose of payment.^ The tender nmst also be made to a person authorized, and who has ca})acity to receive it. It must in general be made to the person having the lejjal estate and who has power to discharge the mortgage. A tender, made to the mortgagee after lie had assigned the inoi'tiraire, and the debtor had notice of the ussii^nnient, would not l)e effectual. It must be matle to the assignee.^ Where there is no place appointed at which payment is to be made, the debtor is, in general, bound to seek the creditor 1 Shields v. Lozear, 34 N. J. L. 490. 2 Jacksou V. Crafts, IS Johns. 110. See Willard v. Harvey, o X. H. 252; Darling v. Chapmau, 14 Mass. 101; Arnot v. Post, G Hill, 65. 3 Co. Litt. 206. ^ Harris v. .lex, 66 Barb. 232. ^ Dorkray v. Xoble. 8 ]\Ie. 27S. Where two deeds cif trust were given to secure several note, all of which were held by diilVreut persons, and it was provided in each deed that if the grantor should pay one-half of the debt and interest expressed in the notes the deed should become void, and the grantor in one of. the deeds tendered to the holder one-half of iiis note and interest, and the holder refused the tender, it was held tliat as to that note the lien of the deed of trust was discharged. Thornton v. Nat. Ex. Bank, 71 Mo. 221. ART. II. PAYMENT. 481 and ninkc a personal tender. ' But the mortgagor is not bound to follow his creditor beyond the limits of the State to make a tender.- A personal tender may also be excused, when the mortgagee has shown by his conductor declarations that he intends to avoid a tender.^ Where a place of pay- ment has been appointed, the presence of the debtor with money is enough, if the creditor be absent from the appointed place at the appointed time of payment.* The tender, if required, must be made in lawful coin, or paper money which has been legalized for that purpose, or foreign coin made current by law.^ But tender in bank notes, current at the place of payment, will be good if no objection is made at the time to the quality of the tender. This objection cannot afterwards be raised.^ The tender, moreover, must be abso- lute and unconditional,' and must be of the exact amount due;^ though more may be tendered, if the excess is not to be handed back; and asking change does not vitiate the 1 Harris v. Mulock, 9 How. Pr. 402. 2 Houbie v. Volkeuing, 49 How. Pr. 169. 3 A mortgagee loses his lien by evading tender of payment. Ferguson V. Popp, 4:2 Mich. 115. * Southworth v. Smith, 7 Cush. 391. 5 Thorudike v. United States, 2 Mason, 1; Stark v. Coffin, 105 Mass. 328. A mortgage " to be paid in gold or silver coin, lawful money of the United States,"' may be paid with United States legal lender notes, as such lawful money. Rodes v. Bronsou, 34 N. Y. 649; Kimptou v. Bronson, 45 Barb. 618. •^ Biddulph V. St. John, 2 Sch. and Lef. 521. A payment to a master, for the redemption of premises sold under a decree, made in bills of a specie paying bank, current at the place of payment, is a good payment. Augur V. Winslow, 1 Clark (X. Y.) 258. " Ferguson v. Wagner, 41 lud. 450; Sager v. Tupper, 35 Mich. 134; Tuthill v. Morris, 81 X. Y. 94. A condition that the holder of the mort- gage should execute a quitclaim deed to the mortgaged premises would prevent a refusal of tender from oi)erating as a disehage of the lien. Loriug V. Cooke, 3 Pick. 48; Dodge v. Brewer, 31 Mich. 228. 8 The rule that the lien of a mortgage cannot be discharged in wiiole or in part b}' a tender of less than the whole amount due then-oii, is not affected by the fact that only a portion of the amount due belonged to the holder, and the balance to some utLier persun f(u- whom he huhis the mortgage in trust. Graham v. Linden. 50 X. Y. 547. (3n 4^2 CONVEYANCING. CII. XI. tonubbock, "> Dowl. & Ry. 280. 2 Potts V. Plaisted, 30 Mich. 149; Tutbill v. Morris, 81 oSI. Y. 94. ^ H:iwk«-s V. Dodge County, etc. Ins. Co., 11 Wis. 188. And see Carter V. P.mr, 113 U. S. 737; Kenneily v. Kelly, .51 Conn. 329. ' Maltix V. AV(ari(l,19 hul. IT)!. And see Jarnagan v. Gaines, 84 111. 203. •••• Anlp, § 471 ; Lippold v. Held, r)8 Mo. 213; Moore v. Bond, 75 N. C. ^3; McGuire v. Van Pelt, 55 Ala. 344. ART. II. PAYMENT. 483 or by a partial paymGiit, and giving a new note for the resi- due of the debt due and unpaid. The mortgage lien re- mains as long as the debt is unsatisfied. ^ Where the assignee of a mortgage took from the mortgagor certain notes secured by another mortgage, to an amount equal to the sum i)aid by him for such assignment, the court held that it was a question of fact whether such notes were taken in payment of such sum, or only as collateral se- curity for the original debt. If the former, the original morto;ao:e would be discharfjed; if the latter, it would re- main in force. ^ But where the assignee of a mortgage de- livered it up to the mortgagor, upon receiving from him certain personal property, but before this property could be sold several executions were levied upon it, which were liens upon it, and shortly after the mortgagor paid off the executions, but did not redeliver the property taken in exe- cution to the assignee of the mortgage, it was held that there had been no payment of the mortgage.^ But where the mortgage debt has been once canceled by payment, it cannot, by a subsequent agreement or arrangement between the parties, be revived, so as to be valid against a judgment creditor whose lien attached after the discharge.* But 1 Chase v. Abbott, 20 Iowa, 154; Swan v. Yaple. 35 Iowa, 248; Foster V. Paine, 63 Iowa, 85. And where a bond secured by a mortgage was paid at maturity by a check for a part, and a note for the residue, pay- able in one year, the check and note being indorsed on the bond and the bond given up. which note was not paid at maturity, it was held that these acts did not work an extinguishment of the mortgagee's lien, there being no proof of an agreement to that effect. Maryland, etc. Co. v. AVingert, S Gill, 170. - Collamer v. Langdon, 29 Vt. 32. And see Kieser v. Baldwin, (52 Ala. 526. 3 Sherwood v. Elslow, 5 Ind. 218. And see Demiug v. Comings, 11 N. H.474. •* Large v. Van Doren, 14 N. J. Eq. 208; Warner v. Blakeman, 36 Barb. 501 ; Kellogg V. Ames, 41 Barb. 218; Bowman v. Manter, 33 N. H. 530; Gardner v. James, 7 K. I. 396; Boyd v. Parker, 43 Md. 182. A mortgagor, after the mortgage debt became due, delivered to the mort- gagee .^1.000, which, after being retained for a few days, was returned to the mortgagor at his request, and was not indorsed upon the mort- gage. It was held that, in the absence of an express agreement to the 484 CONVEYANCING. CH. XI. before a payment can have the effect to discharge the mortgage, it must be actually appropriated to that purpose.^ The debtor, when he pays money to his creditor, may apply it to whatever account he pleases;^ but if at the time of making such payment, he fails to make any specific appli- cation of the money paid, the creditor may apply it to any account due him from the debtor, although it be one for which he holds no security.^ The receipt of a mortgagee, acknowledging satisfaction of the debt secured by the mortgage, is not conclusive evi- dence of its discharge, but it is open to explanation.* Foreclosure of a mortgage is not an extinguishment of the debt, except as to the amount realized upon it. The mortgagor may sue for and recover the deficiency, if an}^ But if the debt has been fully paid by a sale of the prem- ises, or if the mortgagee has entered and taken possession, and the estate is of equal, or greater value than the debt, the debt is of course satistied."^ The foreclosure must, however, have been i)erfected. A decree of foreclosure, before the title of the mortgagee has become absolute by expiration of time limited for redemption, is not a satisfac- tion of the mortgage debt, either in whole or in part.^ But after foreclosure the estate may be valued, and the mortgagee may then be deemed to have received payment coutrary, the §1,UU0 must be deemed to have been paid upon the mort- gage, and that the le-delivery of it did not, as against other creditors of the mortgagor, revive the lien of the mortgage. Martin v. Vedder, 5 Cow. 671. ^ Taymeut to a mortgagee does not extinguish the mortgage debt, if such is not the intention of the parties to the payment. New Haven Sav. Bank v. McPartlan, 40 Conn. 90. 2 Whether interest, principal or another debt. Petty v. Dill, T)!] Ala. G41 ; Knox v. Johnston, 2(5 Wis. 41. 3 Prouty v. Price, oO Barb. 344; Niagara Bank v. Kosevelt, 9 Cow. 409. ^ Porter v. Hill, 9 Mass. 34; Perkins v. Pitts, 11 Mass. 12.t; Parsons v. Welles, 17 Mass. 419; Pearce v. Savage, 4.5 Me. 90. But see Porter v. Perkins, i) Mass. 233. •^ Hurd V. Coleman, 42 Me. 182; Green v. Cross, 45 N. H. 574. « Pock's Appeal. 31 Conn. 215. SeeNunemacher v. Ingle, 20 Ind. 135; Stackpole v. Kobbins, 47 Barb. 212. ART, II. PAYMENT. 485 pro tanto.^ Where the foreclosure is by sale of the mort- gaged premises, and this has been fairly conducted, the price for which the i)remises sold fixes the amount, of course, to be applied on the debt. § 486. Presiiniptioii of Payment. — There are certain circumstances which, when proved, constitute presumptive evidence of payment, and which, in the absence of more direct testimony, will beheld sufficient. Thus, for instance, the possession by the mortgagor of the notes secured by the mortgage, is priina fiacie evidence that they have been paid; but it is only prima facie evidence of payment.^ It raises a presumption, in absence of all other proof, that the notes have been paid.^ A i)resuniption of payment will also arise from lapse of time. AVhere the mortgagee has never entered under the mortgage, and there has been no payment of interest, nor demand thereof, nor any admis- sion of the mortgage as a subsisting lien, within twenty years, the mortgage will be presumed to have been satis- fied.* But where the possession of the land has been con- stantly in the mortffaofee,^ or where the debt has been 1 West V. Chaiuberlia, 8 Pick. 336; Amory v. Fairbanks, 3 Mass. 562. 2 Richardson v. Cambridge, 2 Allen, 118; Grimes v. Kimball, 3 Allen, 518; Chapman v. Hunt, 18 N. J. Eq. 414; Johnson v. Nations, 26 Miss. 147; Succession of Xorton, 18 La. Ann. 36; Allen v. Sawyer, 88 111. 414. 3 Ormsby v. Barr, 21 Mich. 474. One who purchases land covered by an undischarged mortgage, cannot claim to be a purchaser in good faith, and without notice of the mortgagee's equities, simply because the mortgagor has possession of the notes, and exhibits them to him, if he has knowledge of facts sufficient to put a prudent man on inquiry ; and especially if the mortgagee is easily accessible, and an inquiry of him •would have elicited the fact that the mortgage was still in force. Box- heimer v. Gunn, 24 Mich. 372. ■■ Dunham V. Minard, 4 Paige, 441; Collins v. Torry, 7 Johns. 278; Jackson v. Hudson, 3 Johns. 375; Giles v. Baremore, 5 Johns. Ch. 545; Wauraaker v. VauBuskirk, 1 N. J. Eq. 686; Evans v. Huffnuin, 5 Jf. J. Eq. 354; Cheever v. Parley, 11 Allen, 584; Boyd v. Harris, 2 Md. Ch. 210; Goodwj'u v. Baldwin, 59 Ala. 127; Bletheu v. Dwinal, 35 Me. 556; Chick v. Rollins, 44 Me. 104; Kellogg v. Dickinson (Mass.), IS X. E. Rep. 223. See infra, § 497. But no presumption will arise if, during the twenty years, partial payments are made on the debt. Cook v. Parham, 63 Ala. 456. 5 Crooker v. Jewell, 31 Me. 306; Brobst v. Brock, 10 Wall. 519. 486 CONVEYANCING. CII. XI. recognized by the payment of interest or part of the prin- cipal,^ or by an admission tiiat the debt is due,- hipse of time affords no presumption that the debt has been paid. A shorter period tiian twenty years may be sufficient to raise that presumption when other circumstances come in to strenghen it,'^ or where the statutory period of limitation is less than that.* § 487, Subroj^atiou. — AVhcn the mortgage debt has been paid by another than the debtor entitled to redeem, the question sometimes arises whether such payment shall operate as a discharge of the mortgage, or an assignment of it, whereby the party i)aying becomes subrogated to the rights under the mortgage. The rule in respect to such transactions is thus stated in an early case in Massachu- setts: "Whether a given transaction shall be held in legal effect to operate as a payment and discharge which extin- guishes the mortgage, or an assignment which preserves and keeps it on foot, does not so much depend upon the form of words used as upon the relation subsisting between the parties advancing the money and the party executing the transfer or release, and their relative duties. If the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage, and relieve the mortgaged premises of the lien — a duty in performance of which others have an interest, it shall be held to be a re- lease, and not an assignment, although in form it purports to be an assignment. AVhen no such controlling obliga- tion or duty exists, such assignment shall be held to con- stitute an extinjruishment or an assijjnment, according to 1 Howard v. Hildrcth, IS X. 11. 105; Cook v. Parham, G Ala. 656. 2 Frear v. Drinker, 8 Pa. St. 520; Kockhill v. Kockhill (X. J.), 14 Atl. Rep. 760. ^ Jackson v. Pratt. 10 Johns. 381; Buokmaster v. Kelley, 15 Fla. 180. Where a suit was brought to foreclose a mortgage, and dismissed for want of prosecution, and the dismissal acquiesced in for a long time, it was presumed that the mortgage had been satisfied. Nelson v. Lee, 10 B. Mon. (Ky.) 495. ■« Roberts V. Welsh, 8 Ired. (X. C.) Eq. 287; Brown v. Becknall, 5 Jones (N. C), Eq. 423. ART. HI. DISCHARGE. 487 the intent of the parties, and their respective interests in the subject will have a strong bearing upon the question of such intent. "1 ARTICLK III. DISCHARGE. SECTION. 490. Who may make or enter a discharge. 491. Modes of effectiniJ: a discharge. 492. The effect of a partial release of a mortgage. 493. A discharge obtained by fraud or made through mist ike. § 490. Wlio may Make or Enter a Discharge A dis- charge must, in general, be granted by the legal holder of the mortgage. But after an equitable assignment of the mortgage by a transfer of the debt, and notice to the mort- gagor, i)aymeut to the assignor and a discharge by him will 1 Shaw, C. J., in Brown v. Lapham, 3 Cash. 554 ; Wadsworth v. Wil- liams, 100 Mass. 131; Carlton v. Jackson, 121 Mass. 592; Frivelv. Zuber, 67 Tex. 275; Everston v. Kan. Central Bank, 33 Kan. 352; Fears v. Albra, 69 Tex. 437; Detroit F. & M. Ins. Co. v. Aspinwall, 48 Mich. 238; Gaus V. Thieme, 93 N. Y. 225; Acer v. Hotchkiss, 97 N. Y. 395. Where money due on a mortgage is paid, it shall operate as a discharge of the mortgage, or in the nature of the assignment of it, substituting him who pays in the place of the mortgagee, as may best serve the purposes of justice and the just intention of the parties. Carter v. Taylor, 3 Head (Tenn.), 30; Willard v. Harvey, 5 X. H. 252; Bailey v. Willard, 8 X. H. 429; Heath v. West, 26 X. H. 191; Drew v. Kust, 36 X. H. 334; Howe v. Woodruff, 12 Ind. 214. Where a mortgage debt forms a part of the consideration of the purchase, although the purchaser has not entered into any contract or agreement by deed or other writing to pay it, the grantor becomes, as between the parties, the surety of the grantee, and if he pays the mortgage debt, he has the right to be subrogated to all the rights of the mortgagee. Wood v. Smith, 51 Iowa, 156. One who pays a mortgage, has it discharged and takes a new one will not be sub- rogated to the rights of the mortgagee. Morris v. White 36 X. J. Eq. 324. 488 CONVEYANCING. Cll. XI. not tli.schurffe tlie mortjjaijo.^ If the debtor has notice of tlie transfer of the debt, he must pay to the assignee of the debt, regardless of the ownership of the mortgage as it appears of record, and rely on the statutory provisions for enforcing a discharge of record.^ Such notice may be con- structive as well as actual, and consequently, in making pay- ment of a mortgage, care should be taken to require the production of the notes, and to follow up any inquiry that may be suggested in regard to the rights of third parties in respect to the debt.^ Where a mortgage has been assigned by a formal assignment, the assignee is, of course, the proper person to receive payment and to discharge the mortgage, liut if he fails to give notice of the assignment to the debtor, a payment made in good faith to the as- signor and a discharge entered by him may })e held good.* When a discharge of a recorded mortgage is executed by a person other than the mortgagee, a subsequent purchaser or incumbrancer is bound to inquire by what authority such person assumed to discharge it, and is chargeable with no- tice of all the facts which the reasonable prosecution of such inquiry would elicit.'' A mortgage, held by two or more persons jointly to secure a joint debt, may be paid to either of them, and a release, executed by the party to whom i)ayment is made, will be effectual as to all." So, upon the death of one of two joint mortgagees, the sur- vivor has the exclusive right to receive payment and to dis- 1 Cutler V. Haven, 8 Pick. 490; Gordon v. Mulhare, 13 Wis. 22. 2 Jones ou Mortgages, § 9.56. 3 See ante, § 470; Cutler v. Ilaveu, 8 Pick. 490. ^ Ante, § 472. 5 Swarthout v. Curtis, 5 N. Y. 301. « Harvey v. Hurlburt, 3 Vt. oGl ; Weir v. Mosher, 19 Wis. 311 . One of two executors may release a mortgage belonging to the estate, ^vitbout the signature or assent of bis co-executor. See Pierson v. Hooker, 3 Johns. 68; Bulkley v. Dayton, 14 Johns. 387; Carman v. Pultz, 21 X. Y. 5.-)0; People v. Keyser, 28 X. Y. 235; Bowes v. Seeger,8 Watts. & S. 222. The right to the money secured by a mortgage being personal, either one of several mortgagees can receive the same and discharge the right to recover it of the mortgagor. People v. Keyser, 28 N. Y. 235. But see Thornton v. Irwin, 43 Mo. 153. ART. III. DISCHARGE. 489 charo:e the morto-aire.^ But :i inorl'^iio'e given to two per- sous to secure their several demands, is several and not joint; each has a right to force his claim under the mort- gage in a form adapted to his case, and each must join in the execution of a release ; and, of course, the surviving mortgagee is not entitled to receive payment, nor to dis- charge the mortgage as to the debt due the deceased mort- gagee.^ § 491. Modes of Effecting a Discharge. — In general, nothing but payment in fact, or a release of the mortgage, will discharge the lien.^ Though if such transactions occur as would render it inequitable that the mortgage should be kept on foot, the mortgagee would be estopped from set- ting it up. For example, if the mortgagee stands by at a sale of the mortgaged premises, made by the mortgagor, acquiesces in it and receives the consideration of the pur- chase, the estate sold is thereby freed from the mortgage.* We have already seen that performance of the condition of a mortgage, on or before the law day, is everywhere held to defeat the estate of the mortgagee and revest the title in the mortgagor, and payment actually received after condition broken is an equitable release of the mortgage. And in those States in which a mortgage is regarded as merely a lien upon land, such payment is in fact a discharge of the mortgage. In such States, any act, which discharges the debt secured by the mortgage, discharges the mort- gage.^ And part payment of the mortgage debt is a satis- faction and release of the mortgage ^;?'o tanto.^ But where 1 Appleton V. Boyd, 7Mass. 131; Goodwin v. Kichaidson, 11 Mass. 469; People v. Keyser, 28 N. Y. 235. 2 Burnett v. Pratt, 22 Pick. 550. 3 Crosby V. Cliase, 17 Me. 3G9; Folsom v. Lockwood, 6 Minn. 186; Ladd V. Wiggin, 35 N. H. 421 ; Parkhurst v. Cummings, 5G Me. 155. •* McCormick v. Digby. 8 Blackf. 99; Taylor v. Cole, 4 Munf. 351. See West V. Reed, 55111. 242; Proctor v. Thrall, 22 Vt. 262. ^ Sherman V. Sherman, 3 Ind. 337; Terrio v. Guidry, 5 La. Ann. 598; LeBeau v. Glaze, 8 La. Ann. 474. The release of the debt discharges the mortgage. Jackson v. Stockhouse, 1 Cow. 122; Blodgett v. Wadhams, Hill & b. Supp. (X. Y.) 65. 6 New York Life Ins. Co. v. Howard, 2 Sandf . Ch. 183 ; Champney v. 490 CONV'EYANCING. CH. XI. a mortgap^e retains its commoti-law character of a convey- ance of the legal title, a discharge can only be effected by a release or re-conveyance of the mortgasred premises. The debt being paid after default, without a release, of the mortgaged estate, the mortgagee holds the legal title in trust for the mortgagor, and subject to his direction. If the mortjrao-ee, havino; received full pavment of his debt, re- fuses to release the estate, he may be compelled to do so by a proceeding in equity.^ And a penalty is generally pre- scribed by statute for such refusal, in addition to the relief granted by a court of equity.- In most States when the mort^ao-e is satisfied, before or after breach at any time be- fore foreclosure, the mortgagee is bound upon request of the mortgagor and at his expense to execute and acknowledge a sufficient re-conveyance or enter satisfaction in the proi)er office.^ It is important in every case, even where payment of the mortgage debt operates as a discharge, that the mortgage shall be discharged of record. And this is true not only on account of removing the apparent incumbrance from the record, and to prevent any interest being acquired un- der it without notice of the payment ; but a purchaser of the mortgaged premises who buys, before satisfaction of the mortgage is duly entered of record, takes the estate sub- ject to all the equities of the mortgagee or holder of the notes. The record of the mortsiiixo is notice of the rio^hts of parties claiming under it ; and even ])ossession of the Coope, 32 X. Y. 543; Briggs v. Seymour, 17 Wis. 255; Howard v. Gresh:iin,27 G:i. 347; Grayson v. Mayo, 2 La. Ann. 927. 1 McNair v. IMcotte, 33 Mo. 57. And a mortgagee or trustee who fails or refuses, when duly requested, to enter up such satisfaction, or to ex- ecute a deed of release, is liable in damages to the party aggrieved. Verges V. Gibboney, 47 Mo. 171 ; Sherwood v. Wil:;on, 2 Sweeney, 684; Renfro v. Adams, G2 Ala. 302. A judgment debtor, demanding a satis- faction, is bound to offer the instrument to be executed to the creditor, and to (iffiu- to pay the expense of its execution. I'ettengill v. Mather, 10 Abb. Tr. 3t)!J. 2 Crumbly v. Barden (Wis.), 36 X. W. Kep. 19. Stimson's Amer. Stat., § 1901. ART. III. DISCHARGE. 491 notesby tlie mortgagoi',^ or :i receipt of the mortgagee,- will not be conclusive of payment, but is open to ex))lana- tion. For the reasons above stated provision is made in nearly all of the States for the discharge of a mortgage by matter of record. The usual statutor}^ provision is, that a mort- gage may be discharged by an entry in the margin of the record, signed by the mortgagee, or his personal represen- tative or assignee, acknowlcdginof satisfaction of the mort- gage in the presence of the clerk or recorder, who must subscribe as a witness.^ But this method of entering a dis- charge is not exclusive, although no other is provided for by statute. A discharge may nevertheless be effected by a deed of release duly executed and recorded.* Wherever ' Boxheimer v. Gunn, 24 Mich. 372. 2 Porter v. Hill, 9 Mass. 34; Perkins v. Pitts, 11 Mass. 125; Pearce v. Savage, 45 Me. DO. 3 Ala Code, 1876, §§ 2222, 2223 ; Arizona Ter. Comp. Laws, 1877, §§281- 284; Ark. Dig. 1884, §4745; Cal. Hitt. Code, 1876, § 7938; Colo. Gen. Stat. 1883, § 234; Dakotah Civil Code, 1883, § 1735; Del. Code, 1874, ch. 83, § 22; Fla. Dig. 1881, ch. 153, § 14; Idaho Kev. Laws, 1875, p. 603; 111. Key. Stat. 1883, ch. 95, § 8; lud. Rev. Stat. 1881, § 1090, and see Smith V. Lowry (Ind.), 15 X. E. Eep. 17; Iowa Code, 1880, §3327;Dass- ler'sKan. Stat. 1879, ch. 68, §§5-8; Me. Rev. Stat. 1883, ch. 90, § 28; Md. Code, 1878, art. 44, § 39; Mass. Pub. Stat. 1882, ch. 120, § 24; Mich. Comp. Laws, 1882, § 5701; 3Iiun. Stat. 1878, ch. 40, § 36; Miss. Rev. Code, 1880, § 1206; Mo. Rev. Stat. 1879, § 3311; Mon- tana Ter. Code, 1872, p. 402; Xeb. Comp. Stat. 1881, Pt. 1, ch. 73, art. 26; Nev. Comp. Laws, 1873, §§ 263-266; X. J. Rev. Stat. 1877, p. 706; N. C. Code 1883, § 1271 ; Ohio Rev. Stat. 1880, § 4135 ; Oreg. Gen. Laws 1872, p. 519; Penn. Brightley'sPurdon'sDig. 1872, p. 481; R. I. Pub. Stat. 1882, ch. 176, § 6;"vt. Rev. Laws, 1880, § 1950; Wis. Rev. Stat. 1878, ch. 100. §§ 2247-2256; Wyoming Ter. Comp. Laws, 1876, ch. 3, §§ 24-27. ^ A quitclaim deed executed by the mortgagee to the mortgagor, conveying the premises described in the mortgage, operates at least a prima facie release of the mortgage. Hill v. West, 8 Ohio, 222; Waters V. Waters, 20 Iowa, 363. Although the mortgagee has also acquired some other interest in the land upon which the conveyance might oper- ate, it passes his entire interest. Woodbury v. Aiken, 13 111. 639. And see Donlin v. Bradley (111.), 10 N. E. Rep. 11. But where a mortgagee derived an independent title to the mortgaged premises by an assign- ment to himself of a subsequent mortgage thereon, a discharge of the original m ortgage, written upon it, whereby he released and forever 492 ■ CONVEYANCING. CH. XI. the common-law character of a mortgage is retained, a discharge should either be by deed, or by an entry upon the record in the manner provided by statute.^ But no particular form of words is required to effect a release. An acknowledgment upon the back of the mortgage, that the condition thereof has been complied with and that all oblijxations therein have been discharo;e, under the hand and seal of the mortgagee, is a discharge of the mortgage.^ A release of a mortgaofe, though void at law, if not under seal, may yet be enforced in equity.^ And in some of the States it has been held that a mortgagee may release his mortgage by a sufficient parol agreement, although the mortgage be under seal and the debt unpaid.* But such an agreement, in order to be effectual, must be established be- yond a reasonable doubt.^ In those States, at least, in which the equitable view of a mortgage is adopted, no rea- son is perceived why a release should be required to be under seal. If properly executed and acknowledged, so as to be admitted of record, this would seem to be all-sufficient. Kegard must be had, however, to the language of the statute. § 492. The Effect of a Partial Release of a Mortgage. — A release of a mortgage may be limited in its operation to a particular person or demand,'' or to a particular portion quitclaimed all his " right, title aud interest in and to the within de- scribed premises," it was held to pass only his interest in that mortgage, and not his entire interest. Barnstable Savings Bank v. Barrett, 122 Mass. 172. • Thornton v. Irwin, 43 Mo. 153. See Valle v. American Iron Moun- tain Co.. 27 Mo. 4.^5. - Allard v. Lane. IS Me. 9. 3 Headley v. Gouudry, 41 Barb. 279. ■» Willis V. Long, IG Ala. 738. See Ackla v. Ackla, G Pa. St. 2|8. ^ Stevenson v. Adams, r)0 Mo. 475. * Where a mortgagee, in pursuance of a stipulation in the mortgage to that effect, gave a release in favor of the United States to enable the mortgagor to commence the distillery business, which stipulated "that the lien of the United States for taxes and penalties should have priority of said above mentioned mortgage, and in case of the forfeiture of the distillery premises, or any part thereof, the title shall vest in the United AUT. III. DISCHARGE. 493 of the mortgaged premises, and in the absence of inter- vening rights in others, will not affect the moi-tgage lien as to the portion not discharged. As between the original parties, a release of a part of mortgaged premises does not in any manner affect the lien of the residue. So far as it relates to them, every part of the mortgaged projjcrty is bound for the payment of the whole debt.^ But, as against others who have acquired interests in the mortgaged property, a mortgagee, who has notice thereof, has no right to release any portion of the premises to the prej- udice of any such interests.^ Where several morto-ao^ed parcels have been transferred to different persons, the bur- den is upon the whole land and should be shared equally. If the mortgagee releases one of the parcels, he thereby deprives the other owners of their right to contribution, and he must, therefore, in effect, make contribution, by abating so much of the sum due on the morto-ao-e as the value of the portion released bore, at the time of the exe- cution of the mortgage, to the value of the whole estate. ^ But before the mortgagee can be effected by the subsequently acquired rights of others, he must have notice of such rights. And the notice must be actual, or at least such as would put a man of ordinary prudence upon inquiry. The mere re- cording of a subsequent conveyance by the mortgagor of a States, discharged from said mortgage, and for that purpose the said party of the tirst part does hereby remise, release," etc., which was du:y recorded : Held, as against a party chiiming title under a junior incum- brance, that the instrument did not operate as a general release of the premises from the prior mortgage, but that its^only effect was to give the government a priority of lieu. Flower v. Elwood, 60 111. 438. 1 Coutant V. Servoss, 3 Barb. 128; Taylor v. Short, 27 Iowa, 361; Edgington v. Hefner, 81 111. 341 ; McAfee v. McAfee (S. C), 5 S. E. Kep. 593; Jordan v. Sayre (Fla.), 3 South. Rep. 329. 2 McLean v. Lafayette Bank, 3 McLean, 587; Wolf v. Smith, 36 Iowa, 454; Paxton v. Harrier, 11 Pa. St. 312; Blair v. Ward, 10 X. J. Eq. 119; Johnson v. Johnson, S X. J. Eq. 5G1; Coyle v. Davis, 20 Wis. 564; Bir- nie v. Main, 29 Ark. 591. 3 Parkman v. Welch, 19 Pick. 231; Cheesebrough v. Millard, 1 Johns. Ch. 409; Stevens v. Cooper, 1 Johns. Ch. 300; Gibson v. McCormiok, 10 Gill. & J. (35. See Hicks v. Bingham, 11 Mass. 300. 494 CONVEYANCING. CH. XI. part of the premises, would not be sufficient to charoe the mortgagee with notice.^ If the mortgagee has received the full value of the parcel released, and credited the amount upon the mortgage, the owners of the other parcels would, of course, have no further claim to contribution. Neither would they, if a fair ratable proportion of the mortgage debt was so received and credited, unless the mortgage is primarily chargeable upon the part so released, in exonera- tion of the other parcels. We have seen that if a mort- gagor sells a portion of the mortgaged premises by war- ranty deed, the debt is primarily chargeable upon the por- tion remaininji: in his hands. It is a rule in equity that when lauds incumbered by a mortgage are subdivided, and conveyed to different persons at different periods of time, that portion, which is conveyed last by the incumbrancer is to be first called upon to contribute for its full value towards satisfying the incumbrance; and thus each portion is to bear its proportion of the burden in the inverse order of the time of its alienation. ^ Therefore, if a mortgagee, with notice of several successive alienations of parts of the mortgaged premises, releases that part which is prima- rily liable in equity for the payment of the mortgage debt, he cannot charge other portions of the premises with the payment of the mortgage, without deducting from the amount due, the full value of the part thus released.^ § 49. S. A Discharge Obtained by Fraud or Made Through Mistake. — It is a familiar doctrine in equity that a discharge of a mortgage obtained by fraud, or made through a mistake of fact, will be canceled ; provided other parties, having no notice of the fraud or mistake, have not acquired rights ' Patty V. Pease, 8 Paige, 277 ; Straight v. Harris, 14 Wis. 509 ; Deus- ter V. McCamus, 14 Wis. 307; George v. Wood, 9 Allen, 80; Brown v. Simons, 44 X. IT. 47.5. 2 Gouverneur v. Lynch, 2 Paige, 300; Patty v. Pease, 8 Paige, 277; Guion V. Knapp, G Paige, 35. Ante, § 467. 3 Guion V. Knapp, G Paige, 35; Hoy v. Bramhall, 19 N. J. Eq. 74, 563; .Johnson v. Rice. 8 Me. 157; Iglehart v. Crane, 42 111. 2G1 . But see Hol- nian v. Bank of Norfolk, 12 Ala. 369. ART, III. DISCHARGE. 495 in rospoct to tlie property 14)011 faith of the record of such discliarge.^ A release whicii has never been delivered, but which has been stolen orol)tained by fraud from the depos- itory, or by accident or mistake has been placed upon record, is, of course, of no validity, even in favor of an innocent purchaser.- And the same would be true of an unauthorized cancellation of a mortgage by the recorder.^ But where a mortgagee has been induced by fraud to deliver the release, or to enter a discharge upon the record, he is bound by his act in favor of one who has purchased the mortgaged premises in good faith, relying upon the dis- charge as it appeared of record.* In regard to who are entitled to the protection afforded by the record, it has been held that a subsequent mortgagee, or judgment creditor, whose rigrhts existed at the time of the discharge, aie not so entitled.-'^ Nora purchaser from the mortgagor, who has parted with no new consideration since the release.^ But it seems that a purchaser at execution or judicial sale, who buys subsequent to the entry of the satisfaction of record, and without notice of the fraud, would be protected by the record, even though the purchaser is the judgment creditor.' 1 ]McLean v. Lafayette Bank. 3 McLean, 587; Banta v. Vreeland,15 X. J. Eq. 103 ; Barnes v. Cainack, 1 Barb. 392 ; Holleubeck v. bhoyer, 16 Wis. 499 : Weir v. Mosher, 19 Wis. 311 ; Bruse v. Nelson, 35 Iowa, 157 ; Dudley V. Bergen, 23 N. J. Eq. 397; Stover v. Wood, 26 N. J. Eq. 417; West's Appeal, SS Pa. St. 341; Yannice v. Bergen, 16 Iowa, 555; Ellis v. Liud- ley, 37 Iowa, 334; Bruce v. Bouney, 12 Gray. 107. A mistake, to author- ize the cancellation of a discharge, must be a mistake as to matter of fact and not as to a question of the law. Bentley v. Whittemore, IS N. J.Eq. 366. 2 Stanley v. Valentine. 79 111. 544. A discharge of a mortgage, pro- cured by fraud, is void as between the parties and subsequent pur- chasers vvith notice; and if the fraud amount to a felony, it is void, and the mortgage good against the world. Fassett v. Smith, 23 N. Y. 252. 3 Harris v. Cook, 28 N. J. Eq. 345. See Mallett v. Page, S Ind. 364. ■* Heyder v. Excelsior Building Association (N. J.). 8 Atl. Pep. 310. 5 Downer v. Miller, 15 Wis. 612; Trenton Banking Co. v. Woodruff, 2 N. J. Eq. 117; Pobiuson v. Sampson, 23 Me. 388. « Ellis v. Lindley, 37 Iowa, 334; Reagan v. Hadley, 57 Ind. 509. '' Yannice v. Bergen, 16 Iowa, 555. 4iK) CONVEYANCING CH. XII. CHAPTER XII.— Foreclosure. Article I. When the Right of Foreclosure Exists. II. Various Methods of Enforcing a Mortgage. III. Foreclosure by sale under Power Contained iu the Mort- ARTICLE I. WHEN THE RIGHT OF FORECLOSURE EXISTS. SECTION. 496. At what time the right accrues. 497. When barred by limitation. § 49G. At what Time the Right A.ecriies. — Of course a mortgage cannot be foreclosed until it has become due, or there is a breach of some of the conditions of the instru- ment.' And where the time for payment has been extended J Harshaw v. McKesson, 66 X. C. 266; Morris v. Tutkill, 72 X. Y. 575. Where a mortgagee, whose debt secured by mortgage is not due, is made a defendant iu a suit to foreclose a subseciuent mortgage, securing a debt which is due, and files a cross-complaint setting up such prior mortgage, and asking its foreclosure, the court may decree the fore- closure of the :a2;or is at a reasonable phice where he intends to receive his supjiort, dechires his inten- tion not to pay his board there, and afterwards neither pays nor offers to pay any part thereof, although no special demand has been made upon him for such support.^ And where the condition of a mort2;age was to indemnify the mortgagee against the support of a third person, it was held a sufficient breach that the mortgagee was compelled to pay for such support for a part of the time.^ But it is not sufficient proof of a breach of a bond to support an- other during his natural life, to show that he left the house of the person bound to furnish such support, and resided elsewhere for several years, without at any time requesting him to fultill his agreement, or in any way exhibiting to him an intention or desire to hold him to the performance thereof.^ And where the person to be supported wan- dered off to another town, and was there sujjported as a pauper, it was held that the refusal of the mortgagor to pay the expenses did not constitute a breach of the condi- tion, there being no evidence that he was in fault. "^ § 497. Wlicn tbe Riglit of Foreclosure is Barred by tiiinitation. — The right of the mortgagor to redeem, and ~ CD Cj of the mortgagee to foreclose the mortgage, being mutual and reciprocal, it follows that the same period of limitation is a bar in the one case as in the other. Consequently, what has been said on the former subject will be equally applicable here.'' It was there noticed that, by analogy to the En- glish statute fixing the limitation of the right of entry at twenty years, the same period of limitation was adopted in equity as a bar to the right to redeem. So, on the other hand, if the mortgagor, after condition broken, has con- tinued in the adverse possession of the mortgaged premises for twenty years, without having recognized the mortgage 1 Pettee v. Case, 2 Allen, .")4f). 2 Whitton V. Whittou, 38 N. 11. 127. 3 J(Mikiiis V. Stetsou, 9 Allen, 12S. < Rhode? V. Parker, 10 N. H. S3. '^ Ante, § 477. ART. I. WHEN KIOHT OF FORECLOSURE EXISTS. 501 as an existing incumbrance, the presumption arises that the debt has been paid, and the right to foreclose will, ordi- narily, be barred.^ And in those States in which the statu- tory period of limitation has been reduced to less than twenty years, following the analogy to the statute, a corre- sponding period is adopted in equity as a bar to the right to redeem or to foreclose a mortiraiie.'-^ The statute of limitations, as we have seen, does not, ac- cording to the prevailing doctrine, constitute a strict bar to equitable claims ; but equity simply adopts the statutory period as the time at which the presumption of payment arises.^ This presumption is not conclusive, but may be controlled by any evidence having a tendency to rebut it; as the i)art payment of yjrincipal or interest, a new promise, or any circumstance which tends to show that the del)t is unpaid.^ But evidence to overcome this presumption ^Thayer v. Manu, 19 Pick. 535; Inches v. Leonard, 12 Mass. 379; Bacon v. Mclntire, S Mete. 87; Koberts v. Welch, S Ired. Eq. 287; Has- kell V. Bailey, 22 Couu. 5G9; Elkins v. Edwards, S Ga. 32G; Giles v. Baremore, 5 Johns. Cli. 545; Richmond v. Aiken, 25 V^t. 324; Hughes V. Edwards, 9 Wheat. 489; Nevitt v. Bacon, 32 Mass. 212; Chick v. Rol- lins, 44 Me. 104; Fry v. Shehee, 55 Ga. 208; Tripe v. Marcy, 39 N. H. 439; Harris v. Mills, 28 111, 46. The statute begins to run from the time the condition of the mortgage is broken. Wilkinson v. Flowers, 37 Miss. 579; Prouty v. Eaton, 41 Barb. 409. 2 Gunu V. Brantley, 21 x\la. G33; Crawford v. Taylor, 42 Iowa, 260; Field V. Wilson, 6 B. Mon. 479; Richmond v. Aiken, 25 Vt. 324; ante, § 477. To bar a proceeding to foreclose a mortgage, there must be an adverse holdiug for such a period as would bar an action of ejectment. The fact that the statute has attached to the debt secured by the mort- gage, will not affect a proceeding to foreclose; and in order to consti- tute an adverse holding in favor of the mortgagor, there must be an open and notorious denial of the mortgagee's title. Biruie v. Main, 29 Ark. 591 ; Wood v. Augustine, 61 Mo. 46. 8 Ante, § 477. 4 Howard v. Ilildreth, IS X. II. 106; Heyer v. Pruyn, 7 Paige, 465; Hughes V. Edwards, 9 Wheat. 490; Wright v. Eaves, 10 Rich. Eq. 582; Cheever v. Perley, 11 Allen, 584. A purchaser of the mortgaged prem- ises, who accepts a conveyance which recites that the premises are sub- ject to the mortgage, thereby recognizes the mortgage, and caimot set up the statute of limitations, except from that dat^; and a purchaser from him is bound by the admission. Harriugtou v. Slade, 22 Barb. 161; Palmer v. Butler, 36 Iowa, 576; Schnuickcr v. Sibert, 18 Kan. 104. 502 CONVEYANCING. CH. XII. should 1)0 positive and unequivocal.' AVlien a payment of interest or a i)art of the })rincipal has been made, or the debt otherwise clearly recognized as subsisting, the effect is to renew the mortgage from that date. And it matters not that the mortgagor may have parted with a portion of the equity of reden)ption in the meantime. The purchaser stands in the same position with the mortgagor, and is bound by his acts and declarations in respect to the exist- ence of the debt.- So, where there are several persons in- terested in the equity of redemption, a part payment, made by any one of them, stops the running of the statute as to all.^ But when the note and mortgage are once barred, a part payment, promise or acknowledgment by the mort- c^agor or a part owner of the mortgaged premises will re- vive the mortgage so as to affect the interest of the payor only. It will not revive it as against a purchaser from the morto-agor, or any other parties who have acquired interests in the mortgaged premises prior to the revivor of the note.* The effect of the running of the statute is merely to take away the remedy, and not to dischai'ge the debt ; hence, the fact that the debt is barred does not extinguish the mortgage. The remedies upon the debt and the mortgage arese[)arate and distinct. A mortgage security has not, in general, been deemed to be within any branch of the statute of limitations. The security exists until the debt is })aid, or until the presumption of payment arises from lapse of time. It cannot ))e defeated by showing merely that the personal secui'ity, to which the mortgage security is col- lateral, has become barred by statute.'' This is the pi'cvail- The rifjht of a niortf^:i Thayer v. M;inn. l!i Pirk. y.\:>: .Toy v. .Adams, 20 Me. 33:?; Cape Gir- ART. II. METHODS OF ENFORCING A MORTGAGE. 50 3 insf doctrine: but in some of the States, the statutes of limitation apply in equity in the same manner as at law, and it has been held upon the construction of such statutes, that the remedy upon the mortgage is gone whenever the debt is barred.^ Other courts, proceeding upon the theory that the debt is the principal thing, and the mortgage a mere incident, have adopted the same rule.'- And this con- clusion would seem to follow as a natural consequence, wherever a mortgaixe is regarded as a mere lien, and not as an (estate in land. ARTICLE II. VARIOUS METHODS OF ENFORCING A MORTGAGE. SECTION. 500. The extent of the present article. i)Ol. Remedies in the different States. 502. Foreclosure by suit in equity. 503. By proceedings at law. 504. By entry and possession. § 500. The Extent of the Present Article The terra "foreclosure" applies, strictly, to the process by which the right of the mortgagor to redeem is tinally cut off and ardeau Co. v. Harbison, 58 Mo. 90; Wood v. Augustine, 61 Mo. 46; Michigan Ins. Co. v. Brown. 11 Mich. 265; Powell v. Smith, 30 Mich. 451; Bank of Metropolis v. Guttschlick, 14 Pet. 19; Birnie v. Main, 29 Ark. 591; Whipple v. Barnes, 21 Wis. 327; Wilkinson v. Flowers, 37 Miss. 579; lleyer v. Pruyn,7 Paige, 465. But see Crocker v. Holmes, 65 Me. 195; Ball v. Wyeth, 8 Allen. 275; Jackson v, Sackett, 7 Wend. 94. 1 Lord V. jSIorris, IS Cal. 482. See Newman v. DeLorimer, 19 Iowa, 244; Heudershott v. Ping, 24 Iowa, 134; Chick v. Willetts, 2 Kan. 384; Schmucker v. Sibert, 18 Kan. 104; Jordan v. Sayre (Fla.),3 South. Rep. 329. -Medley v. Elliott, 62 111.532; Cower v. Winchester, 33 Iowa, 303; Hurley v. Estes, Neb. 386; Ross v. Mitchell, 28 Tex. 150; First Nat. Bank v. Thomas (Ky.), 3 S. W. Rep. 12; Bitter v. Calhoun (Tex.), 8 S. W. Rep. 523. 504 CONVEYANCING. CH. XII. extino-uished. Besides the rio;ht of foreclosure, the mort- gagee has a personal remedy against the mortgagor: and, wherever the common-hiw doctrine of mortgages prevails, he has also a right of action for the recovery of the pos- session of the land. And these may, generally, be pursued concurrent with a bill to foreclose.^ But as these topics belong rather to the subject of remedy than to conveyanc- ing, it is not proposed to consider them here. There are also various modes of effecting a foreclosure in the different States, which more i)roperIy come under the head of actions and defenses, although they operate to some extent as conveyances. These we shall notice but briefly, treating at greater length that method of fore- closure which belongs more exclusively to conveyancing, *. e., by sale under a power contained in the mortgage. § 501. llcmedics for Enforcing Mortj;ages in the Dif- ferent States. — As before stated, there are various rem- edies for enforciniz: niorto-aires in the different States, in some of which the [)roceedings are at law, and in others, in equity.- Whatever may be the process prescribed bj^ the law of the State where the land is situated, it must be fol- lowed.'^ An as:reement in the morto;age itself that it should be foreclosed in any other manner, would be void and of no effect.'^ It must also be foreclosed in accordance with the law in force at the time of its execution. This is taken to be a part of the contract, and any subsequent change by statute, affecting the rights or interest of the mortgagee, would be a law impairing the obligation of the contract, and 1 Hale V. Rider, 5 231; 4 Kent Com. 183, 184; Ely v. Ely, 6 Gray, 439; Joues v. Coude, 6 Johns. Cli. 77; Very v. Watkins, IS Ark. 54G; Payne v. Howell, 40 Miss. 498; Torrey v. Cook, 116:Mags. 163; Gil- man v. 111. & Miss. Tel. Co., 91 U. S. 003. But a jadf^nient recovered for the debt canuol, in general, be levied upon the mortgaged property, though it may be levied upon any other property of the debtor. Wasd- burn v. fJoodwin, 17 Pick. 137; Tice v. Aiiniii, 2 Johns. Ch. 125; Jones on Mortgages, § 1229, and cases cited. 2 See Stimson's Amer. Stat., § 1920. 3 Elliott v. Wood, 45 N. Y. 71. ^ Chase V. McLellan, 19 Me. 378. ART. II. METHODS OF ENFORCING A 3I0RTGAGE. 505 could not, therefore, be applied. ^ The various remedies for enforcing mortgages in the several States, excei)tiug that of a sale under power, may be classed under three general heads, namely: foreclosure by suit in equity; by proceed- ings at law; and by entry and possession. Each of these will be noticed brieily in the order named. § 502. Foreclosure by Suit in Equity. — The foreclosure and redemption of mortgages are subjects peculiarly within the jurisdiction of courts of equity. And although other remedies are adopted for the foreclosure of mortgages in different States, courts of equity generally retain their juris- diction, and may be resorted to, at least, whenever the cir- cumstances of the particular case require specitic relief, or a more complete remedy than is otherwise afforded.^ The ancient mode of foreclosino- a mortgao-e, and which is still in use in England and in some of the United States, was by bill in equity praying for a foreclosure of the mort- gagor's right of redemption ; the decree being that, unless the party having the equity of redemption shall, within a prescribed time, usually six months, pay the sum found to be due on the mortgage and redeem the estate, he shall be forever barred from redeeming;^ and upon default in such payment, the land becomes the absolute property of the 1 Bronsou v. Kiuzie, 1 How. 311; McCrackeu v. Hay ward, 2 How. 608; Clark V. Eeyburu, S Wall. 318; Williamsou v. Doe, 7 Blackf. dud.) 12; Ogdeu V. Walters, 12 Kau. 882. 2Sbaw V. Norfolk K. R. Co., 5 Gray, 162, 183. The fact that a mortgage contains a power of sale does not oust the jurisdiction of a court of equity to enforce it. McGowan v. Branch Bank of Mobile, 7 Ala. 822; Corradiue v. O'Connor, 21 Ala. 573; Walton v. Dody, 1 Wis. 420; Byron V. May, 2 Chaad. (Wis.) 103. Neither does the fact that there is a statutory remedy. Benjamin v. Cavaroc, 2 Woods, 168; Eiley V. McCord, 24 Mo. 265. But iu Maine, it seems, a court of equity has no jurisdiction to foreclose a mortgage. The process of foreclosure is by entry and possession. Shaw v. Gray, 23 Me. 174; Ireland v. Abbott, 24 Me. 155; Chase v. Palmer, 28 Me. 341. But see Woods v. Woods, 66 Me. 206. 3 It is essential to the validity of the decree that a certain lime be given within which the mortgagor may redeem. Clark v. Reyburn, 8 Wall. 323. 506 CONVEYANCING. CH. XII. mortgagee.^ This was the form of foreclosure first adopted ])}■ the courts of equity, and for a long time was the only form in common practice, though the power of a court of chancery to decree a sale of the land instead of a foreclosure, in certain cases, was early established.- In this country, the })ractico of selling on foreclosure has come to be almost universal, and strict foreclosure is only resorted to in special cases, ^ and in some of the States, is entirely unknown.* But in Vermont, Connecticut and Nebraska a decree of strict foreclosure appears to be the usual form.-' When the practice is to foreclose without a sale, its se- verity is mitigated by enlarging the time for redemption from time to time, according to the equity arising from the circumstances of the particular case.'' But a decree of sale is esteemed preferable in most cases, as being better adapted to the I'elative eituation of lender and borrower, and to pro- duce equitable and fair results to both parties.' The land ' The effect is to extiuguish the right of redemption and vest the en- tire estate in the mortgagee. Brainard v. Cooper, 10 N. Y. 359; Bradley V. Chester Valley R. R. Co., 3G Pa. St. 150. 2 The right to compel a sale of the mortgaged premises is spoken of by Blaclvstoue as among the rights of a mortgagee. 2 Bl. Com. 159. And see 2 Story's Eq., §§ 1024-102G. ^Bolles V. Duff,43 N. Y. 469. Where a bill for a foreclosure shows that the, moitgage was given for the entire purchase-money, no l):irt of which, or of the interest had been paid ; and that the value of the premises does not exceed the amount due, and they are but a slender, and only security for the debt, the mortgagors having absconded, a strict foreclosure is not improper. Wilson v. (xcisler, 19 111. 49. It is only in strong cases which form exceptions, that there should be de- creed strict foreclosure or a sale without redemption. Farrell v. Parlier, 50111. 274; Boyer v. Boyer, SO 111. 447; Griesbaum v. Baum, 18 111. App. G14. A decree of strict foreclosure which does not find the amount due, which allows no time for the payment of the debt and the redemption of the estate, and which is final and conclusive in the first instance, cannot, unless authorized by some special statute, be sustained. Clark v. Rey- burn, 8 Wall. 318. •* Davis V. Holmes, 55 Mo. 349; Gannunt v. Gregg, 37 Iowa, 573. « Paris v. Hulett, 2G Vt. 308; Palmer v. Mead, 7 Conn. 149; Woods v. Shields, 1 Xeb. 453. e 4 Kent Com., 182. 7 See Mills v. Dennis, 3 Johns. Ch. 3G7; Wilder v. Ilaughey, 21 Minn. 101 ; Lansing v. Goelet, 9 Cow. (X. Y.) 3.52. ART. II. METHODS OF ENFORCING A MORTGAGE. 507 being sold, the proceeds are applied first to the payment of the mortgage debt, and the surplus, if any, paid to the debtor or his assigns ; or, if a balance of the debt remains unpaid after applying the proceeds of the property, the mortgagee may have an action for its recovery.' In most of the States where foreclosure is effected by judicial sale, there are statutes regulating the mode of procedure which must, of course, be followed.^ Any general observations on the subject would be better calculated to confuse than to instruct the practitioner in such cases. It may be suggested, however, that all persons having an interest in the object and result of the suit, ought, generally, to be made parties to a bill to foreclose,'' since persons interested, who are not made parties, are not bound by the decree. But the ques- tion of parties is more or less fluctuating, and is governed in some degree by the circumstances."^ § 503. Foreclosure by Proceedings at Law. — In several of the States the proceedings under the statute, for the foreclosure of mortgages, are at law, and not in equity. In such States a judgment may generally be rendered, not only for a sale of the property, but also for any balance of the debt remaining after the sale, thus avoiding the neces- sity of two suits. 5 It is familiar that in several of the 1 Personal judgment cannot be taken against the defendant in a fore- closure suit, until it appears, from the sheriff's return, that a balance remains due after a sale of the mortgaged premises. Hunt v. Dohrs, 39 Cal. 804. In a bill to foreclose a mortgage, an assignee of a part of the mortgage debt may be joined as a party. Beebe v. Morris, 56 Ala. 525. 2 Grover v. Fox, 36 Mich. 461. 3 Williams v. Eussell, 19 Pick. 162; Hallett v. Hallett, 2 Paige, 15; Montcalm v. Smith, 6 McLean, 416; Koger v. Weakley. 2 Porter (Ala.), 516; Belloc v. Eogers, 9 Cal. 123; Martin v. Xoble, 29 Ind. 216; Hall v. Hall, 11 Tex. 526. In a proceeding to foreclose a junior mortgage, the mortgagee under a senior mortgage is not a necessary party. White v. Holman, 32 Ark. 753. ■* For a comprehensive view of the subject of parties to an equitable suit for foreclosure, see Jones on Mortgages, § 1367, et seq. ^ The following cases are cited as illustrative of the above proposition, rather than as representing the only States in which this is the law : 508 CONVEYANCING. CH. XII. States the distinction between actions at law and suits iu equity has been abolished by the adoption of the code sys- tem. In those States also, there is usually but one action for the recovery of the debt and the enforcement of the morto-ao-e, in some of which the proceedings are in the nature of a bill in equity, while in others they are gov- erned by the practice in courts of law. The great diversity in the details of such proceedings renders any attempt at stating them impracticable. In those States in wliich foreclosure is effected by entry and possession, there is a process by which possession may be obtained, called a Writ of Entry, which is an action at law; though it partakes, in many respects, of the nature of a hill in equity. ^ For the rules governing the proceetlings in this action, recourse must be had to the practice of the States where this form of foreclosure is used. § 504. Foreclosuve by Eutry and Possession. — In Maine, Massachusetts, New Hampshire and lihode Island, the usual remedy of the mortgagee to foreclose his mortgage is by an entry in pais, or by the prosecution of a writ of entrj', as be- fore noticed. Possession gained in either way, if continued a certain prescribed period of time, usually three years, works a foreclosure.'- The statutory })r()visions in respect Judge V. Forsyth, 11 Fla. 257; Dickerson v. Powell, 21 Ga. 143; Hunt V. Dohrs, 39 Cal. 304; Biriiie v. Main, 29 Ark. 591. Under the Missouri code of procedure, to enable one to foreclose a mortgage and obtain a general judgment and execution for any balance that may remain due after sale of the mortgaged premises, the mortgage nuist be regular; but if it be irregular, as by the omission of any requisite to a complete instrument, still it is held to create a lien — a trust for the benefit of the creditcn- — which can be enforced in equity. McOIurg v. Thillips, 49 Mo. 315. A mortgagee may enforce his mortgage as against the land, nut- witiistanding the personal liability of the mortgagor for tlie debt maj^ be barred by a discharge in insolvency. Christy v. Dana, 42 Cal. 174. A mortgagee doe-; not forfeit his riglit to enforce his mortgage by obtain- ing a general judgment on the dcl)U nur by delaying such enforcement till the removal of a prior incumbrance. Kan. City 8av. Assoc, v. Mar- tin, 01 Mo. 435. 1 Jones on Mortgages, § 1276. - Davis V. Rogers, 64 Me. 159. A foreclosure of the mortgage contem- plated is payment of the mortgage debt, in contemplation ^f law. to the ART. III. FORECLOSURE BY SALE UNDER POWER, 509 to the entry, notice and the evidence of possession differ in some essential particulars in each of those States. Conse- quently, in the foreclosure of a mortgage in either, recourse must be had to the local statutes and the decisions of the courts under them for the rules governing the proceedings.^ ARTICLE III. FORECLOSUKE BY SALE UNDER POWER. SECTION. 507. The scope of the present article. 508. Power of sale a cumulative remedy. 509. When its exercise will be enjoined. 510. Who may exercise the power. 511. What notice is to be given. 512. Requisites of the notice. 513. Conduct of the sale. 514. Who may purchase. 515. The deed. § 507. The Scope of tbe Present Article. — The nature of a power of sale, its form and construction generally, have already been discussed.^ It only remains, therefore, to notice the method of its execution, or, in other words, of the enforcement of the remed}^ under it. § 508. Power of Sale a Cumulative Remedy. — It has also been noticed that a power of sale is a cumulative rem- edy, and does not stand in the way of foreclosing a mort- extent of the value of the land at that time. If the mortgagee is not satisfied with it, he may recover any deficiency. But in svich case, the foreclosure is re-opened under the Mass. Gen. Statute, 140, § 36. Morse v. Merritt, 110 Mass. 549. 1 See Railroad Co. v. Elliott, 52 N.H. 387; Jarvisv. Albro,67 Me. 310; Jones V. Bowler, 74 Me. 310; Stimson's Amer. Stat. §§ 1920, 1930. 2 Ante, §§ 458-461. 510 CONVEYANCING. CH. XII. crao'c ill any other manner provided l)y law.' It has fre- queutly been held that a power of sale does not deprive a court of chancery of its jurisdiction to foreclose.^ The mortgagee has his election to foreclose in either way.^ It is believed to be the common practice in nearly all of the States to resort to equity in the foreclosure of a mortgage, whenever it is defective in the formal requisites of execu- tion, or a question arises as to who is the proper person to exercise the power. So a mortgage, given to secure and cover unliquidated damages, cannot, in general, be fore- closed under a power until the amount due under the mort- gage has been ascertained.* Eithci party in interest may resort to a court of equity for that purpose.^ It has been suo-o-ested also that, in view of the embarrassments attend- ing a sale under the power when the mortgage is payable by instalments, the better remedy would be to foreclose in a court of equity in cases of that kind.*' In like manner, 1 Ante, § 502, note; Jones on Mortgages, § 1773; Thompson v. Houze, 48 Miss. 44."). 2 0arrodiue v. O'Connor, 21 Ala. 573; Walton v. Co Jy, 1 Wis. 420; Comerais V. Genella, 22 Cal. 124; Wofford v. Board Police of Holmes Co., 44 Miss. 579; Myers v. Estell, 48 Miss. 372. 3 Cormerais V. Genella, srtpra; Bedell v. McClellau, 11 How. Pr. 172; Morrison v. Bean, 15 Tex. 2G7 ; Walton v. Cody, 1 Wis. 420. Under a statute which declares that there shall be but one action for the enforce- ment of a right secured by a mortgage, the mortgagee may advertise and sell in accordance with the terms of a power contained in the mortgage, and thus foreclose without proceeding by action. Bryant v. Carson River Lumbering Co., 3Xev. 313; Crocker v. Robertson, 8 Iowa, 404; Fanning v. Kerr, 7 Iowa, 450. ■•Wilkius V. Gordon, 11 Leigh (Va.), 547; Ferguson v. Kimball, 3 Barb. Ch. 616; Moseley v. Ilodge, 76 N. C. 387; Ferguson v. Ferguson, 2 Comst. 364. It is not indispensable to the right to sell under the power, that the mortgage should ])e payable in money alone. When it was given to secure the payment of a debt in specilic articles, and the value of the articles Avas liquidated by the mortgage in case of default, it was held to be equivalent to a mortgage to secure the payment of money . Jacks v. Turner, 7 Wend. 458. 5 Wilkins v. Gordon, 11 Leigh (Va.), 547. See Holden v. Stickney, 2 McArthur (D.C.),141. « Willard on Real Estate and Conv., 135; Leonard v. Morris, 9 Paige, 90. ART. III. rORP:CLOSUIlE BY SALE UNDER POWER. 511 a resort to proceedinf^s in equity frequently becomes neces- sary under deeds of trust, in order to control, restrain or direct the exercise of the power, ^ or for the substitution of a new trustee whenever the former trustee has died, re- moved from the jurisdiction, or refuses to act in the execu- tion of the trust. ^ § 509. When the Exercise of a Power of Sale will he Enjoined. — A court of equity will generally interfere by injunction to prevent a sale under a power in a mortgage or trust deed, when by reason of fraud, want of considera- tion, or otherwise, the collection of the debt would be against conscience, and the sale would work a great and irreparable injury.^ But in order to authorize the issuance of the injunction, it must be shown that it is necessaiy for the protection of rights which are clear, or beyond reason- able doubt ; that the injury likely to be sustained by the complainant will be irreparable; or that he is entitled to more immediate relief than can be obtained in any other way.* And the party applying for the injunction must tender pa}'meut of the amount justly due on the mortgage, upon the principle that he who seeks equity must do equity.^ It is well settled that a sale under a mortgage, which was void in its inception, may be enjoined. Thus, in New York, 1 Youugman v. Elinira, etc. E. Co., 65 Pa. St. 278. 2 See ante, § 458. A sale made by a trustee appointed by the court is by virtue of the power, and not of the decree. Rice v. Brown, 77 111. 549 ; Doolittle v. Lewis, 7 Johns. Ch. 45 ; Holden v. Stickney, '1 McArthur (D. C.) , 141 ; Staats v. Bigelow, Id. 367. A trustee who has once accepted a trust, is not allowed to lay it down without the assent of the beneticiary, or the decree of a court. Drane v. Gunter, 19 Ala. 731. But, if within the jurisdiction of the court, may be compelled to discharge the trust. Sargent v. Howe, 21 111. 148. 3 Greenl. Cruise, 79 n; 2 Story's Eq. Jur., § 885; Kornegay v. Spicer, 76 N. C. 95; Matthie v. Edwards, 2 Call, 465; Piatt v.McClure,3 Woodb. &M. 151. 4 Montgomery v. McEwen, 9 Minn. 103; Bedell v. McClellan, 11 How. Pr. 172. 5 Stringham v. Brown, 7 Iowa, 33; Sloan v. Coolbough, 10 Iowa, 31; Mej'senburg v. Schlieper, 46 Mo. 209; Tooke v. Newman 75 111. 215. 512 CONVEYANCING. CH. XII. where usury renders void the contract, a J^alc under a power in a usurious mortgafje may be enjoined.^ And it seems that, in some of the States where usury does not invalidate the mortgage, an injunction Avould be allowed upon tender of the amount due.^ But in a late case in Illinois it was held to be no ground for enjoining a sale under a trust deed, that the notes secured thereby reserved usurious interest. The fact that usury is included in the notes in nowise im- pairs the power or duty of the trustee to make sale, and apply the proceeds in discharge of the debt secured by the deed of trust. "If he should attempt to misapply the fund and pay the notes given for usury, then, and not till then, will the court interfere to relieve against the misappropria- tion of the trust fund." "^ In Matthews v. /SJcinker,^ it was held that an injunction would lie to restrain a sale under a power contained in a deed of trust given to secure a loan made by a national bank, on the ground that the bank hnd no authority to loan money upon real estate security; and that the deed of trust Avas therefore void. But this case was overruled by the Supreme Court of the United States, where it was held, that a loan of money by a national bank on real estate se- curity is valid as between the parties ; that the borrower is estopped to allege the want of power in the bank to make such a loan ; and that the mortgage may be enforced be- tween the parties.'' A sale under a power which was not void in its inception may be enjoined when subsequent circumstances have ren- dered its execution inequitable. But a court of equity will 1 Burnet v. Denniston, 5 Johns. Ch. 3.5; Hyland v. Stafford, 10 Barb. 5,5S. 2 Powell V. TTopkin.«. 38 Md. 1 ; Walker v. Coekey, 38 Md. 75; Casady V. Bosler, 11 Iowa, ■24'i. 3 Tooke V. Newman, 75 111 215. But see Bidwell v. Whitney, 4 Minn. 76, where it was held that the amount of a penalty lixed by the inort- fracre could not he recovered from the mort.i;a,2:ee. after he had been per- mitted to sell the property and apply the proceeds to its payment. < G2 Mo. 32!). '• Union National B'^^k v. Matthews, 98 U. S. 021. ART. III. FORECLOSURE BY SALE UNDER POWER. 513 not interfere in sucli case, except upon strong reasons. AlthoLif^h payment of the entire debt would, undoubtedly, afford ground for an injunction, the fact that a part of the debt had been paid,^ or that a greater amount is claimed than is really due,-^ is not, in general, a sufficient ground for enjoining a sale, unless it be in restraint of selling more than enough to pay the amount due, or, if the accounts are complicated and the balance due under the mortgage is un- certain, until the equities between the parties, which should affect the amount due, can be settled, and the balance due ascertained.^ An injunction will not be granted to stay a sale under a. power contained in a mortgage, in order to enable the mort- gagor to set off a balance which may be found in his favor upon counterclaims arising out of separate transactions which are in controversy between the parties.* A want of notice of the sale is not a sufficient ground for enjoining it. The purchaser is bound to know what the requirements of the deed and of the statute are, and to see that they have been complied with; and if a sale be made without a sufficient compliance with the essential requisites of the power, it may be set aside, and the mortgagor, or others interested in the equity of redemption, admitted to redeem upon the same terms as if no sale had taken place.^ The same is true of a sale in which the mortoaoee under- takes to sell an interest of the mortgagor not conveyed by the mortgage. The sale, as to such interest, would be simply void, and the purchaser could claim no rights under it. The injury would not, therefore, be such as an injunc- tion should be granted to restrain.'' 1 Powell V. Hopkius, 38 Md. 1. - Armstrong v. Douiiuick, 7 Minn. 49. 3 Koruegay v. Spicer, 76 X. C. 95. ^ Frieze v. Chapin, 2 R. I. 429. ^ Jones on ]Mortgag-es, § 1810. s Armstrong v. Sanford, 7 Minn. 49. But see Hubbard v. Jasinsk 46 111. IGO. (33) 514 CONVEYANCING. CH. XII. § 510. AVlio may Exercise tlic Power. — ^Xc have already .seen that a legal assignment of a mortgage passes the power of sale, when the i)Ower is in terms extended to as- signs ; but unless the mortgage so provides, an assignee can- not, In general, execute the power. ^ In order to confer the power ui)on an assignee, the mortgagee must convey the whole of his estate. The conveyance of a i)ortion of the estate will not, in law, carry with it a corresponding portion of the i)()wer, })ecause this is in its nature indivisible. In such case the mortgagee may still execute the power, so far as the title is concerned, but cannot defeat the conveyance which he has made. The case put by way of illustration is this: A mortgagee in possession leases a portion of the mortgaged premises for a year. At the end of six months he sells the whole of the premises under his pow'er, and be- comes himself the purchaser. The })Ower is w^ell executed, and vests the equit}^ of redemptujn in the w4iole of the [)remises in the mortgagee, subject, however, to all the rights of the lessee.^ An assignee, in order to be entitled to exercise the power himself, must also be the legal as- signee of the debt secured by the estate, as well as the estate itself; for it takes both of them to constitute all the interest of the donee of the power.-^ One who has become the assi"fnee of the debt without the mortgage, cannot exe- cute the power, nor can an\' mere equitable assignee.^ It is to be remembered, however, that in many of the States a transfer of the debt operates an assignment of the mort- ' Crafts V. Dougherty (Tex.), 6 S. W. Rep- SoO; Ante, § 458. - Wilsou V. Troup, 2 Cow. 23(j. See Torrey v. Cook, IIG Mass. 1G5, ami cases cited. ••' PickeU V. .Jones, G3 Mo. 69; Heath v. Hall, GO HI. 344; Dill v. Sutter- field, 34 Mo. 52. An assignment which is not effectual either at conunon hiw or by statute, as, for instance, one made by an informal indorsement without any transfer of the note, does not operate to pass the power of sale to the assignee, but leaves it still in the mortgagee. Hamilton v. Lubukc^e, ")! III. 41."). •• ^lH22 CONVEYANCING. CH. XII. was nothing in the proceedings authorizing the mortgagor to avoid the sale.^ And in New York, where a sale was adver- tised to take phice on Sunday, and postponed to the next day, the postponement being advertised beforehand, the sale was held to be regular.- But a change in the time appointed "for the sale, after notice has once been given, by which the mortgagor is misled to his prejudice, will avoid the sale, notwithstanding the notice was published for the requisite length of time after the change.^ If the mortorase provide that the sale shall be made at any specified place, a sale made at any other place would not be in pursuance of the power, and would be invalid. But if it merely provides that a sale shall take place in a certain town or city, the trustee or mortgagee may cause it to be made at any usual convenient place. ^ Where the terms of a deed of trust required the sale to be made "at the court- house door," a sale made at the door of a building tempo- rarily used as a court-house, pending repairs on the court- house proper, was held to be a sufficient compliance with the terms of the deed.^ It does not seem to be requisite that the notice shall state the terms of the sale, or that the terms will be stated at the time of sale." In respect to the length of time notice is to be published, it was held in New York, where the statute requires that notice shall be published for twelve weeks successively, at 1 Baunini-; v. Araistrong, 7 Miuu. 47. 2 Sayles v. Smith, 12 Wend. 57. 3 Dana v. Farrington, 4 ^liiiu. 433. * Hornby v. Cramer, 12 llow. Pr. 490. Notice that a sale was to take place -'at the town of St. .Toseph,"' held, sufficient notice of the place of sale under the circumstances. Beatie v. Butler, 21 Mo. 313 ; Golcher V. Brisban, 20 Miuu. 453; Id. 464. 5 Ilauibright v. Broei\ver in a mortgage sliall be at public auction, a private sale would be ineffectual, notwithstanding the power contained in the mortgage authorized the mortgagee, on default, to sell the premises at private sale to satisfy the debt. Lawrence v. The Farmers' Loan and 'I'rust Co., 13 X. Y. 200. And see Griffin v. Marine Co., 52 111. 130. ART. III. FORECLOSURE BY SALE UNDER POWER. 527 to satisfy the amount dne on the mortgage. ^ In other States the rule has been adopted by the courts of requiring all forced sales to be made in parcels, where, from the dis- tinctness of the items of property, such a mode of sale is practicable.^ But generally, even under a statute requiring a sale in parcels, the question becomes one calling for the exercise of a sound discretion by the mortgagee ; and if the premises will sell to a better advantage together, that is the proper mode to pursue, even if they are readily divisible.^ In an early case, where there was no such statute, and the mortgage authorized the mortgagee upon default to sell the whole estate, it was held that there was no oblicration upon him to sell in parcels in order to obtain a greater price.* But the better opinion would seem to be that he is bound to exercise a reasonable discretion and make the sale in that way in which it will realize the largest sum of money. No reason is perceived why any distinction should be made in this regard between a mortgagee and a trustee in a deed of trust. It has frequently been held that the latter is bound to render the sale as beneficial as possible to the debtor, and to this end he must sell the property as a whole when it will sell to the best advantage in this way,^ or, if it is suscepti- ble of division, and will bring more if sold in separate par- cels, he must adopt this mode, otherwise the sale will be set aside.*' The mere fact that the property is sold in gross, though capable of easy division, is not per se suffi- cient to invalidate a sale. It must appear that the interests of the debtor were sacrificed," or that there has been some attendant fraud, unfair dealing or abuse of the confidence reposed in the trustee.'^ 1 Mich. Comp. Laws, 1S72, Vol. 2, p. 1923, § 7; Miun. Stat. 1873, Vol. 2, p. 900, § 107; New York Eev. Stat. 1875, Vol. 3, p. 848, § 6; Wis. Rev. Stat. 1877, p. 890, § 3530. 2 Rowley v. Brown, 1 Biun. (Pa.) Gl. « Wells V. Wells, 47 Barb. 416. 4 Adams V. Scott, 7 W. R. 213. 5 Singleton v. Scott, 11 Iowa, 589; Carter v. Abshire, 48 Mo. 300. '" Chesley v. Cheslej', 49 Mo. 540, and os. 365. And see Hall v. Bliss, 118 Mass. 554. 2 Montague v. Dawes, 14 Allen, 369. 3 Thornton v. Irwin, 43 Mo. 153; Blockley v. Fowler, 21 Cal. 326; Par- menter v. Walker, 9 R. I. 225; Garland v. Watson, 74 Ala. 323. ■* If the objection is not made -within a reasonable time, the sale will not be disturbed. Patten v. Pearson, 60 Me. 223; Allen v. Ranson, 44 Mo. 263; Medsker V. Swaney, 45 Mo. 273; McLean v. Presley, 56 Ala. 211; Johnson v. Watson, 87 111. 535; Joyner v. Farmer, 78 N. C. 196; Boutwell V. Steiuer, 84 Ala. 307; Ezzel v. Watson (Ala.), 3 South. Rep. 309; Dawkinsv. Patterson, 87 N. C. 384; Thomas v. Jones (Ala.), 4 South. Rep. 270. 5 Rutherford v. Williams, 42 Mo. 18; Thornton v. Irwin, 43 Mo. 153; Blockley v. Fowler, 21 Cal. 326. But see Richards v. Holmes, 18 How. 143; Howards v. Davis, 6 Tex. 174. « Edmondson v. Welsh, 27 Ala. 578; Benham v. Rowe, 2 Cal. 387; Pat- ten v. Pearson, 57 Me. 428; Mulvey v. Gibson, 87 111. 367; Burns v. Thayer, 115 Mass. 89; Joyner v. Farmer, 78 X. C. 196. ' Burns v. Thayer, 115 Mass. 89; Gibbons v. Hoag, 95 111. 45. And see Dexter v. Shepard, 117 Mass. 480. « Dyer v. Shurtleff, 112 Mass. 165. (34) 530 CONVEYANCING. CH. XII. While the policy of the law does not permit a trustee, either directly or indirectly, to become a purchaser at his own sale, after the sale has been made in good faith, the trust is discharged, and he has the same rights to ])urchase the trust property from his grantee as a stranger, if the transaction is in good faith. And the presumption is in favor of his innocence and tidelity to duty, until the con- trary is shown.' § 515. The Deed should come from the holder of the legal title. Therefore, an assignee who is expressly auth- orized by the the terms of the power to advertise and make the sale, is the proper person, ui)on the sale being made, to execute the deed, he holding the legal title by conveyance from the mortgagee. A provision that the mortgag-ee shall execute the deed, will be construed to apply where he holds the legal title.- Under a statute em))owering the sheriff to make the sale and conveyance on default, the officer who sells stands in the shoes of the mortgagee, and represents l)oth parties. The effect of the statute is the same as if made part of the mortgage. The power of sale continues in force as a personal power, until completed by deed, in the person who acted wlien the i)roperty was struck off, passing in case of his death to his representatives, and not to any official successor. Thus it was held, where the sale was made by the sheriff, that he might, at the proper time, lawfully execute the deed, though his term of office had, in the meantime, expired.'^ If the mortgagee is a married woman, and the power of sale authorizes her to make all necessary conveyances for vesting the premises in the purchaser, in fee-simple abso- lute, it ma}' be executed by her sole (\eo(] reciting the power, and signed and sealed with her own name and seal, without her husband's consent.'* ' Mumi V. P.iirgc?. 70 111. (iOl; Watson v. Sherman, 8-1 III. 203. 2 Heath V. Hall, CO 111. :i44. ^Iloffniaii V. Ilarrinj^ton, 33 Mich. ;)!J2. •* Cranston v. (.'lane, 07 Ma.ss. 4.09. AUT. HI. f'OKECLO.SLKE 15Y SALE UNDER POWEIJ. 531 Where the power- of sale authorizes the mortgagee, his personal representatives or assigns, to sell the premises, and, "as attorney" of the mortgagor, to execute a deed to the purchaser, a deed made by the mortgagee or his as- signee, in his own name, would not pass the legal title. ^ On the other hand, where the power is given to be exercised by the donee, the conveyance should be executed in the name of the donee. '-^ AVhere the power was " to make, ex- ecute and deliver to the purchaser or purchasers thereof all necessary conveyances for the purpose of vesting in such purchaser or purchasers the premises so sold in fee-simple absolute," it was held that this was not a mere power of attorney to execute a deed in the name of the mortgagor; though the deed might not, perhaps, have been invalid if it had been executed in that manner, but that it was a full power of sale and conveyance, which was properly executed by the deed of the mortgagee, reciting the power, and signed and sealed with her own nan]e and proper seal.-^ Where the morto;ao;ee is described as administrator, the deed is properly executed under the power, in liis own name, right and character, since he cannot hold land in the character of administrator.* If by reason of any informality the deed is insufficient o convey a good legal title, it will yet pass an equity to the grantee.^ A j)urchaser who has paid the purchase-money L s subrogated to the rio-hts of the mort2:ti":ee under the mortgage, which is regarded as assigned to him, and he may proceed anew to foreclose.^ We have seen that a mortgagee, when authorized by stat- ute, or by the terms of the power, may himself become the ' Spear v. Iladdiick, 31 111. 439. - Crauston v. Crane, 97 Mass. -iad. •' Ibid. ^ Wilkersou v. Alleu, G7 Mo. 510. * Mulvey v. Gibbons, 87 111. 3()7. Jones V. Mack, 53 Mo. 147. Such title is a good equitable defense to uit in ejeetnieut by one holding under the mortgage. Itussell v. U'hitL-ly, 59 Mo. 19U. 532 CX)N\EYANC1XG. ' CH . XII. purcliasor ;it the niortirago s:ile.^ Under the statute in New Yolk, no (li>e(l i.-^ necessaiy in such case. 'J'he affidavits of the i)nl)litati()n, and posting, and service of notice of the saU', taUe the phice of a deed, and oj)erate as a statutory' convcvance.- In the absence of such a statute, wliere the niortti-ao-ee ))econies tiie purchaser, })y virtue of tiie author- ity given him l)y the j)o\ver, it is the usual practice for him \o c(uiveythe pi'operty Hrst to a third party, who conveys it hack to the mortiraijee. But in a recent case in Massachu- setts, it was held that the mortgagee might convey directly to himself, and that such a conveyance was valid.-^ The i]eQd should recite the power by virtue of which it is made, m order to avoid any misconstruction of it; though it is not aljsolutely essential that it should even refer to the power, where it is manifestly the intention of the party to execute it. If such intention is not nuinifest, a simple deed b\- a mortjiagee will be construed to convey only his nuut- gage interest subject to redemption.^ We have already seen that the recitals in a mortijagee's or trustee's deed are not evidence of the facts recited, unless made so b}" statute, or by the teiiHs of the power under which it is executed.^ Statute ])r()vision'S, requiring a copy of the notice of sale, ami an affidavit of |)ublicati()n to be iWvd and recorded in the otlice of" tlie recorder of deeds of the county in which the land i- situated, are intended to secure the preservation of the evidence that the conditions of the i)()wer have been complied with, and not to add a new condition to the con- tiact of the parties. The title [)asses by the sale and deed, and immediately vests in the purchaser, and is not liable to be divested by a failure to make or record the affidavit.*' If there l)e no affidavit, the jjidjlication of the notice and cireum>lanees of the sale nuiy be proved by common-law evidence." ' Anir, p. 4:54. 2 Liiyinan v. AVliiiing, 20 Barb. 55P •■> Hall V. Hlis?, 1 IS Mhips. r),-)4. •» Pea.se v. I'ilul Knob Irou Co., 41) Mo. 124. •"• Ante, § 73. I'ioM V. Gooding, lOG ]\Ia.ss. 310; Burns v. Thayer, 11.5 Mass. S9. ' .\rn<)t V. .McChiie, 4 Den. (X. Y.) 41. ART. I, NATURE OF A WILL. 533 TITLE IV.— Wills. Chapter XIII. The General Requisites of a Valid Devise. XIV. Of the Revocation and Republication of Wills. XV. Of the Probate of Wills and of their Registration. XVI. Of the Construction of Wills. , CHAPTER XIII. — The General Requisites of a Valid Devise. Artticlk I. The Nature of a Will. II. The Parties to a Devise. III. The ProDer Subject of a Devise. IV. The Execution of Wills. ARTICLE I. THE NATURE OF A WILL. SECTION. 518. Preliminary remarks. 519. Detinitions. 520. The ilistiuctiou between a will auti a deed. § 518. Preliminary Ilemark.s. — It is not our puL-{)ose to enter into an extended discussion of the law of wills; but, as devises of real estate are practically conveyances under which property is taken by purchase, the general requisites of these instruments will be briefly noticed. In our e.\- aU CONVEYANCING. CH. XIII. imiiiKitioii of llic sul)joct it will be iii)i)o.s.-. Dclinitioiis. — A will is the disposition of one's jn-operty to take effect after death,'- usually termed "last will ami testament." As an expression of the tinal disi)o- sition of one's property the Avord ivill is derived from the En'dish common law; while the term testament is exclu- sively used in the Koman civil law and by continental writers upon the subject. The word ivill signifies literally volition, choice, desire of the mind; the word ^e^'^awien^, the testimony of a party, or an exi)ression of his mind or will. In practical application the terms are .synonymous.^ "The term devise,'' says Mr. Redfield, "is applied more exclusively to a testamentary disposition of lands, and in the Eniilish courts has been regarded more in the nature of a ~ It? conveyance, or api)ointment of particular lands to a par- ticular devisee, than in that of a testament." * AVills are distinguished in regard to the form in which they are made, as written and maicupative or unwritten. The statute of 1 Vict., ch. 26, rendered nuncupative wills invalid, except as to soldiers in actual military service, and mariners or seamen, l)eing at sea, who might thus dispose of |)ers()nal estate. In this country the statutes of all the States have either placed such wills under special restric- tions, reducing them within the same narrow limits as the English statutes, or limited them to a small amount of estate. \\\\:\\ we shall have to say upon this sul)ject will, of course, ' Dean's Prin. Conv. 420. 2 Swiuburu, Wills, pt. 1. sec. 2; Godolphiii, pt. 1, cb. l,ser. 2; 1 Ked- field on Wills, .5. 3 Bouviei's T.aw Diet., Wills. * 1 Redliekl on Wills, p. G. ART. I. NATURE OF A WILL. 535 be confined to clevises of real estate, which, under the Stat- ute of Frauds, are required to be in writing. A holographic will is one written wholly by the testator himself. In some of the States, as we shall see, a will of this character may be established by proof of the hand- writing of the testator, notwithstanding there be no attest- ing witnesses.^ A codicil is an instrument or writing b}' which additions, subtractions, alterations or explanations are made in or to a will, and it constitutes a part of the will. A codicil must be executed with precisely the same formalities as a will. There may be several codicils to one will, but the will and all codicils relating thereto must, in general, be read as one entire instrument. - § 520. The Distinction between a AVillanda Deed. — In its nature a will differs from a deed; yet an instrument may be so framed and executed as to operate as a deed in one part and as a will in another. ^ And a paper having the formalities of a deed may be a will, or it may admit of con- struction either as a deed or as a will, and in such case, that interpretation should be given to it which will effect the will of the maker, and best preserve the rights of other contracting parties.* The intention of the maker, not as to the form and character of the instrument, but as to the nature of the estate conveved, is the criterion by which to determine whether the paper is a deed or a will : and if the intention gathered from the whole paper is that the estate is not to pass, or the instrument take effect until his death, it is a will and not a deed.-^ Accordingly, a writing inform of a deed, which conye^^s all the property that the maker "may die possessed of," is a will, and is onl}' admissible in 1 Infra. § 543. 2 1 kedlield ou Wills, 4th ed., 287. 3 Robiusou V. Schl\-, 6 Ga. 526; Taylor v. Kelley, 31 Ala. 59. < Williams ou Ex., 9, u; Doe v. Cross, 8 Ad. & E. (X. S.) 714. '" Brewery. Baxter, 5 Amer. E. 30; s. c, 41 Ga.212; Hester v. Young, 2 Kelley, 31 ; Lyles v. Lyles. 2 ^'ott. & M. (S. C.) 531 ; Dawsou v. Daw- sou, Rice (S; C.) Ch. 243. See iuterestiug discussion of this question in Driesbach v. Serfass, 17 Atl. Rep. 513. 536 CONVEYANCING. CH. XIH. evidence after due probate.^ So a writing by two, pur- porting to be a will, whereby, in consideration of imitual friendshi}), tliey mutually promise that in the event of the deatli of eitiier, the survivor, after paying expenses, etc., should have the estate of the deceased, was held to be a will revocable by either, and was rendered inoperative by a subsequent separate will of either.- But it is regarded as settled that mutual wills, duly executed, become irrevocable, in equity, after the death of cither party .^ ARTICLE II. THE PARTIES TO A DEVISE. SECTION. 523. There must be competent parties to every valid devise. .524. The age at wliicb persons may devise their estates. .525. Coverture as a testamentary disability. 52G. Persons of non-sane mind. 527. Deaf, dumb and blind persons. 528. Persons under disability from crime. 529. As to the devisee. § 523. There must be Competent Parties to every Valid Devise. — Like any other instrument of conveyance or con- tract, a will must have parties thereto, capable in law of executing the same, and of taking under its provisions. The general rule is that every person of sound mind, who has arrived at the age of discretion, is capable of making a will ; but the same exceptions exist for want of capacity to make a will, as in case of any other contract. ' Brewer v. Baxter, supm; Watkins v. Dean, 10 Yerg. (Tenn.) 321. Schumakor v. Schmidt, 4 Amer. R. 135; s. c, 44 Ala. 454. See Gould V. Mansfield, 4 Amer. R. 573; s. c, 103 Mass. 408. And see Evans v. niith, 28 Ga. 98. 3 I Redrtcld on Wills, 4th ed., 183. ART. II. PARTIES TO A DEVISE. 537 § 524. The A^e at wlilcli P6 CONVEYANCING. CH. XIII. has attained tijc age prescribed by statute, he or she may make a will without, or against the consent of either tutor, father, guardian or husband.^ liut, in general, no person who has not attained the age prescribed by statute, whether male or female, married or unmarried, can make a valid will for any pur})ose.- § i)2'). Coverture as a Testamentary l>isal)ility. — By the laws of England coverture has always been, to a greater or less extent, a testamentary disabilit}' ; but in this country, the tendency is very strong toward a removal of all property disabilities attaching to married women. "^ By statute, *in num}' of the States, and by implication in the absence of it ill others, a married woman may now devise and be- queath the same as if sole.* In some of the States the lina, tweuty-oue years, Code 18^3, § 2137 ; Ohio, male twenty-one, female eighteen. Rev. tStat. 1880, § .5914; Oregon, twenty-one years, Gen. Laws 1872, ch. <)4 § 1 ; Pennsylvania, twenty-one years, Bright- ly's Dig., vol. 2, p. 1474, §§1,3: Kbotle Island, twentj'-one years, Pub. Stat. 1882, ch. 182, § 1 ; Sonth Carolina, twenty-one years, Gen. .Stat. 1882, § 18.53; Texas, twenty-one years, or any one who has been mar- ried, Eev. Stat. 1879, art. 4857; Utah, eighteen years, Comp. Laws, 1876, p. 270, § 1; Vermont, male twenty-one, female eighteen, Rev. Laws 1880, §§ 2039, 2421 ; Virginia, twenty-one years, Code 1873, ch. 118, § 3; West Virginia, twenty-oue years, Rev. Stat. 1832, ch. 84, § 2; Wisconsin, every person over the age of twenty-oue years and also women of eighteen and upward. Rev. Stat. 1878, ch. 103, § 2277. 1 Noble V. Enos, 19 Ind. 72. - In Iowa and Texas, it seems, all niarried i)ersons are to be regarded as of full age for the purpose of making a will. Rev. Code, Iowa, 1880, p. 607, § 2322; Rev. Stat. Texas, 1878, art. 4857. 3 See note to Cutter v. Butler, 57 Amer. Dec. 340, for extensive review of the law on this subject. ••Arkansas Const., Is74, art. 9, § 7; Dig. 1874, § 5762; Connecticut, Gen. Stat. 1875, ch. 11, § 16; Dakota, Civ. Code, § 684; Florida, Dig. 1881. ch. 1.50 § 1; Illinois, Rev. Stat. 1883, ch. 68, § 9; Indiana, Rev. Stat. 1881, §§ 2.5.57,2)')^; [>vi. il^/. J . I ■. l-ii), p. 525. § L9J5; Louisi- ana, Civ. Code, art. 1406; Maine, Rev. Stat. 1883, ch. 61, § 1; Maryland, as to all property acquired since 1860, Rev. Code, 1878, art 51, §20; Mn-higan, Laws 1882, § 6295; Minnesota, Stat. 1878, ch. 47, § 1; Missis- sippi. Jiev. Code, 1880, §§ 1167, 1262; Montana, except as to will made to a church or eleemosynary institution which requires written consent of husaud, Rev. Stat. 1879, § 433; Nevada, Comp. Laws, 1873, § 812; Texas, Rev. Stat. 1879, art. 4857; Utah, Comp. Laws, 1876, p. 271. § 5; Vermont, ART. II. PARTIES TO A DKVISE. .")39 statute provision is, that she may thus dispose of her sepa- rate property, 1 while in others she can only devise subject to the husband's rifjht by the curtesy.- In Colorado the wife may will one-half of her real and personal estate, but no more without her husband's consent: and the same re- striction is placed upon the power of the husband to dispose of his estate b}^ will.^ In Delawari?, Georgia and Nebraska a married woman can only make a will under certain restric- tions, and by consent of her husband ;* except that, as at common law, she may make a will in exercise of a power without the concurrence of her husband. , § 526. Persons of Non-sane Mind — The hiw requires in all cases that the testator shall be a person of sound mind and free from duress or undue intiuence. Upon the simple question of mental capacity to make a will, discardinjjj all technical distinctions, it may be stated as a result of the decisions that, if the testator has the mental ability to recol- lect his propert}^ and the persons among whom it might naturally be bestowed, with sufficient clearness to make an intelligent disposition of it, and is not laboring under any delusion of which his act is the direct offspring, he may ex- Rev. Laws 18S9, cli. 104, § 2039; West Virgiuia, Rev. Stat. 1879, ch. 201, § 2; Wisconsin, Rev. Stat. 1878, § 2277; Wyoming, Comp. Laws. cli. 82, §4. 1 Alabtiina, Code, 1870, § 2713; Arizona, Oomp. Laws, lS77,cli. 28, § 1; California, Civ. Code. § 1270; Kentucky, Gen. Stat., ch. 113, § 4; Xe- vada. Comp. Laws, 1873, § 812; Peausylvania, Bi-igtitly's Dig., p. 1477, §§ 2, 3; Soutli Ca/olina, Gon. Stat., 1882, § 2036; Virginia, Code, 1873, ch. lis, § 3; Was/iiugt«n Ter., Stat. 1879, p. 78. 2 Kansas, Das/ler"s Comp. Laws 1879, p. 539, § 3137; Massachusetts, Gen. Stat., ch. 108, §§ 9,10; Missouri, Rev. Stat. 1879, §§ 3900,3961; New Hampshire, Gen. Stat., ch. 104, § 12; Xew Jersey, Rev., 1877, p. 638, §9; Xorth Carolina, Battle's Rev., ch. 09, § 31; Ohio, Rev. Stat. 1880, §§ 3108, 5914; Allen v. Little, 5 Ohio, 65; Oregon, Gen. Laws, 1872, ch. 64, § 3; Rhode Island, Gen. Stat. 1872. ch. l.")2, § 13; Tennessee, Code, 1884, § 3350. ^ Gen. Stat., 1883. § 2269. * Delaware, Amended Laws, 1874, ch. 76, § 3: Georgia, Code, 18S2, § 2410; Nebraska, Gen. Stat., 1873, p. 299, § 123. 540 CONVEYANCING. CH. XIII. cciite :i valid will.' And a person may possess sufficient testamentary capacity, thouo;li he be of unsound mind in a measure or his memory be impaired. - It is a universal rule, ai)plicable alike to contracts and to wills, that thev must have the full and free consent of the parties making them ; at least, the}^ must not be procured by fraud, force or violence, or by imprisonment or illegal restraint, either actual or constructive, nor by ove.-imi)or- tunity or undue intiuence, such as takes from the testator free airencv.^ § 527. Deaf, Dumb and Blind Pei-sons. — Blindness is so far an incapacity, that it requires express and satisfactory proof that the testator understood the contents of the will, in addition to what is required in other cases.* Deaf and dumb persons labor under a similar inconvenience, espe- cially in communicating with witnesses, unless they have been educated so as to be able to write ; and this difficulty is very greatlv increased when the defects of siirht and hearing are combined in the same person. " But," says Mr. RedHeld, " there can be no question whatever, at the present day, that such a person, having received instruction so as to be able to comprehend the nature of the transac- tion, will be entirely competent to execute a will."-'' ' For tbe very nnmerous authorities on the subject, see 1 Redfield on Wills, 4th ed., 30, 103. And see aMe, §j 28, 29; Edge v. Edge, 38 X. .1. Eq. 211; Ballantiiie v. Proudfoot, 62 Wis. 216. One is competent to make a will if he knows what he is doing, his obligations to kindred, to friends, and to whom he is giving his property. Delaney v. Salina, 34 Kan. .")32. - Brice v. Hall (111.), 12 X. E. Rep. 2:5(;. And see Kramer v. Weinert (Ala.), 1 South Rep. 20. •' Roll wagen V. Roll wagen, 03 X. Y. 50i; Laughlin v. McDevitt, 63 X. Y. 213; Birch v. Birch. 04 X. Y. 144; Thompson v. Hawks, 14 Fed. Rep. 'J02; Schotield v. Walker, 58 Mich. 96. H a testator is legally com- petent to make a will, and acts freely, his will cannot be impeached be- cause unreasonable, imprudent, or unaccountable. Xicholas v. Kershner, 20 W. Va. 2.")1. < 1 Jartuaii on Wills. 49, See Roy v. Hill, 3 Strobh. (S. C.) 297; Wil- son V. Mitchell. 101 i'a. St. 49.5. •■'IJledf. on Wills. 4th ed., 55. And see Martin v. :Mitchell, 28 Ga. 382; Heiss' Appeal, 13 Pa. St. 73; Harris v. Vanderveer, 21 X. J. Eq. 501 . ART. II. PAUTIES TO A DEVISE. 541 § 528. On A.ccount of Crime. — At common law, jx'i- sons convicted of treason or felony forfeited tbeir o^oods to the crown, and were, therefore, incapable of luakiniia will.^ But in this country, as stated in a former chapter, for- feitures of estate and corruption of blood, except for treason, are general ly abolished. But persons sentenced to the penitentiary for a term less than life are suspended from all civil rights during such imprisonment, and if the sentence be for life, they are deemed to be civilly dead, and as to all civil rights are as dead, and, of course, can- not make a valid will.- § 529. As to a Devisee. — All persons who are at the time a will is made, capable of acquiring lands by purchase, may take title under the provisions of a will. The capacity of a purchaser has been discussed in a former chapter,'^ and need not be adverted here, except to note the fact that in some of the States special statutes have been enacted in reference to derises to churches and eleemosynary corpora- tions, and also in reference to posthumous children, to which reference must be had in such cases. Another disqualification, and one which applies especially to devisees, is that created by the policy of law which prohibits a devisee or legatee from being made an attesting witness to the will. This subject is also regnlated by statute in most, if not in all States. In some of the States it is provided that such a devise shall be absolutely void as to such witness and all persons claiming under him.^ In other States it is enacted that the devise shall be void as to such witness, unless there are other witnesses to the num- ber required by the statute.'' In several of the States it is 1 2 Bl. Com. 499. 2 Presbiuy v. Hull, 34 Mo. 19; GraUani v. Adams. 2 John?. Cas. 408. 3 Ante, § 33. 4 Gworo;ia. Code 18S2, § 2417; New Jersey, Rev. 1877, p. 1244, § 4; North Carolimi, Code 1883. § 2147; Khode Island, Pub. Stat. 1882, cb.l82, § 15; South Carolina, Gen. Stat. 1882, § 18.")7. •■' Arkansas, Mansf. Dig. 1884, § G.j35; California, Civil Code, 187G, § C282; Connecticut, Rev. 1875, p. 369, § 3; Colorado, Gen. Stat. 1883, § 3485; Dakota. Civil Code, 1877, § 717; Illinois, Stat. 1883. cb. 148, § 8; 542 CONVEYANCING. CH. III. pi'ovick'd tliat if any sucli witness would have been entitled to any shaic of the estate in case the will was not estab- lisiied, then so nuich of the share as would liave deseended to him, as will not exeeed the devise made to him in the will, shall be saved to him.^ In Connecticut, New Jersey and \'ermont. if the witness be an heir-at-law of the testa- tor, the devise is not void, even thoush it may exceed the aniouiit that he would otherwise have received.'- ARTICLK HI THE PROPER SUBJECr OF A DEVISE. SECTION. 'hi]. Proper subject-matter esseutial to every devise. 532. What liw governs. '}.i'i. What estate or interest in land will pas^ by devise. 534. As to after-acquired property. 535. Cunuilative devises. 536. The equitable conversion of real estate into mone}'. § 5.'U. Proper Subject-matter Essential to Every Dc- vi.so. — Anolher essential requisite to a will is, that there must 1)(' proper subject-matter upon which it may operate. 'JMie proper subject-matter to a devise is real estate, and anythin<; which does not come under that head cannot, of Iowa, Code 1880, § 2327: Kansas, Gen. Stat. 1S7'J, ch. 117, § 11; Kcn- tuciiy, Gen. Stat. 1881, cli. 113, § 13; Massachusetts, Gen. Stat. 1SS2, ch. 127, § 3; Michigan, Stat. 1882, § 5791; Minnesota, Stat. 187S, ch. 47, § 7; Missouri, Jiev. Stat. 1879, vol. 1, § 3995; Nebraska, Comp. Stat. 18S1. pt. l.ch. 23. § 130; New Hampshire, (ion. Laws, 1878, eh. 193, § 8; Vermont, Rev. Laws 1880, § 20K;; Virginia, Code 1873, ch. 118, § 19; Wisconsin, Stat. 1878, p. 050, § 2285; Indiana, Rev. Stat. 1881, § 2.586; New York. Rev. Stat. i)t. 2, ch. C art. 1, § 50; Ohio. Rev. Stat. 1880, § 5;»25. ' Stimsou's .\mer. Stat. § 2051. 2 Connecticut, Itev. 1875. p. 309, §3; Vermont, Rev. Laws, 1880, § 201(:; New .tcrscy, Rev. IS77. p. IJII. §5. ART. III. PROPEK SUBJECT OF A DEVISE. 543 course, be devised. Thus, chattels real, or terms of years, cannot, in general, be devised, though, like other personal property, they can be bequeathed, and so disposed of by will. § .332. What Law Governs. — Title to real estate can be acquired, passed and lost only in accordance with the laws of the country or State where it is situated; and the validity of every disposition of real property, whether testamentary or inter vivos, must depend upon those laws.^ In some of the States, however, it is provided by statute that a will, executed m accordance with the laws of the State where the executor dwells, may be admitted to probate in the State where the land is situated.^ § 533. What Estate or Interest in Land will pass by a Devise. — In general, whatever interest a testator has in real estate, whether a present interest or a future con- tingent interest in the nature of a contino;ent remainder oi' executory devise, is transmissible by deed or will.^ In- deed, it seems that all contingent estates, whether of real or personal i)roperty, and all springing and executory uses and possibilities coupled with an interest, when the person who is to take is known and ascertained, are assignable, descendable, devisable and transmissible.* In an early case in Massachusetts it was held tliat a tes- tator could not devise lands of w^hich he was disseized, to any one except the disseizor, and that to him the devise would operate as a release.^ But the better opinion appears to be that it is no objection to the right to devise property. 1 Eyre v. Storer, 37 X. H. 114; Totter v. Titcomb, 22 Me. 300; Norris V. Harris, 15 Cal. 22G; White v. Howard, 52 Barb. 294; Appleget v. Smith, 31 Mo. 166; Kerr v. Moon, 9 Wheat. 566; Laphaai v. Oluey, 5 R. I. 413; Montgoiuery v. Milliken, 43 Amur. Dec. 518, with note; Burlitig- tou Uuiversity v. Barrett, 92 Id. 376. 2 Story, Coutl. Laws, § 474. 2 Thompson v. Hoop, 6 Ohio St. 480. ■» Bunst V. Dawes, 4 Strobh. (S. C.) Eq. 37; Pond v. Bergh, 10 Paige, 149; Thompson v. Hoop, 6 Ohio St. 480. * Poor V. Robinson, 10 Mass. 134. 544 CONVEYANCING. CH. XIII. that tlio testator lias been disseized.^ Statutes against ehanipeity and maintenance do not apply to devise. - § 5.14. As to After-acquired Property. — The general principle of the common law is that a will can operate only upon land in which the testator had an interest at the time of the execution of his will, and will not transfer land in which he had no interest at that time, although he may own it at the time of his death; unless the will has been repub- lished.^ But, by the aid of statutes in several of the States, land acquired after the execution of the will passes by it Avithout republication, if there be words in the will sufficient to cover it, and such appears to be the intention of the testator.* § 535. Cuimilative Devises. — "Where a specific thing is given twice to the same person, whether in the same will, or in the will and again in a codicil, or the like quantity is given to him twice by the same instrument, he can claim the benefit only of one legacy ; but where the devise or be- quest is of unequal quantities or of distinct things, the one is not merged in the other, but the gifts are cumulative and the devisee or lefjatee will take both.-^ It has been said that a will, which devises or disposes of property according to the directions of the law simply is void." Therefore a devise will not be treated as given for that to which the devisee or legatee is entitled by law, or in satisfaction of dower, unless it be so expressed in the will." The right of dower is a leofal risfht which the wife cannot ' Redfield on Will?, 4th ed., 302. and cases cited. 2 Varkk v. Jackson, 2 Wend. 106. 3 Luce V. Diniock, 1 Root (Conn.), 82 ; Girard v. Mayor, 4 Rawle (Pa.), 323; .Jackson v. Holloway, 7 .Johns. (N. Y.) 394; Jackson v. Potter, 9 I03. ••See Stimsou's Amer. Stat., § 2G34. And see Morey v. Sohier, 63 X. H. o07: BrijTijs v. Briii:1G; 2 Greenl. Ev. G76; 1 Redtield on Wills, 221; Lamb v. Girtman, :53 Ga. 289; llolloway v. Galloway, 51 111. 159; Roberts v. Welch, 46 Yt. 164; i?eConvey's Will, 52 Iowa, 197. Although the testator may not have signed in the pres- ence of all the witnesses at once, and the witness(^s did not in fact write their names at one time, yet if the testator acknowledged his signature an J declared it his Avill to all at once, and those who had before written their names as witnesses then reaffirmed the same, it is an effective execution and attestation. Moals v. Cutting, 59 Md. 510. And see Baker v. Woodbridge, 6G Barb. 261 ; Yoe v. McCord, 74111. 33. - Everliart v. Everhart, 34 Fed. Rep. 82. 3 Nevada, Comp. Laws, vol. 1, p. 200, § 3 ; New Hampshire, Gen. Stat, p. 357. § ('). < Knapp V. Pattison, 2 Blackf. (Ind.) 355; Diez's Will, 50 N. Y. 88. ^ Pollock V. Glassell, 2 Gratt. 439. « Alabama, Code, 1876, §2294; Arkansas, Dig., 1884, § 6492; Califor- nia, Civil Code, § 1278; Dakota, Civil Code, § 691; Colorado, Stat. 1883, § 3492; Delaware, Laws, 1874, p. 508, §3; Illinois, Rey. Stat. 1883, ch. 148, §2; Indiana, Stat. 1881, § 2576; Iowa, Rev. Code, 1880, § 2326; Kansas, Comp. Laws, 1879, ch. 117, § 2; Kentucky, Gen. Stat. 1881, ch. 113, § 5; Michigan, Stat. 1882, § 5789; Minnesota, Stat. 1878, ch. 47, § 5; Mississippi, Rev. Code, 1880, ch. 46, § 1262; Missouri, Rev. Stat. 1879, §3962; Montana, Laws 1872, p. 556, § 5; Nebraska, Comp. Stat. 1881,^ p. 227. § 127; Nevada. Comp. Laws 1873 § 814; New Jersey, Rev. 1877, p. 1247, § 1 ; New York, Rev. Stat. pt. 2, ch. 6, art. 1, § 40; North Caro- lina, Code, 1883, § 2136; Ohio, Stat. 1880, vol. 2, § .5916; Oregon, Gen. Laws 1872, p. 788, § 4 ; Rhode Island, Pub. Stat. 1882, ch. 182, § 4 ; Ten- nessee. Code, 1884, § 3003; Texas, Rev. Stat. 1879, p. 712. § 48.59; Vir- ginia, Cod*', 1873, p. 910, § 4; Wisconsin, Rev. Stat. 1878, ch. 103, § 2282. ART IV. EXECUTION OF WILLS. 551 low named the statutes re([uire ut least three witnesses.^ In some of the States, the witnesses are required to be " credible;" in others, " competent." There is no differ- ence in legal significance between the words " competent " and "credible." The word "credible" has been con- strued to mean competent, and to include all persons not rendered incompetent to give testimony by reason of in- fancy, insanity or imbecility, interest, crime or other cause. 2 It appears to be the settled rule, that if the wit- nesses are competent at the time of attesting the will, their subsequent incompetency, from whatever cause it arises, shall not prevent the probate and allowance of the will.^ And on the other hand, if the witnesses are incompetent at the time of the attestation, it will not suffice that they are competent to testify at the time of the probate of the will.* By statute, in some of the States, the witnesses are required to be over fourteen years of age. In the absence of any such statute, a person under fourteen is presumptively in- competent, from defect of understanding, to attest the execution of a will; but this presumption may be rebutted by proper evidence.^ The Enoflish Statute 25 Geo. II., ch. 6, provided that if any person should attest any will or codicil, to whom any beneficial interest was given under the will, such interest or estate as to the person attesting the will only, or any one In Peuusylvauia Ji will is required to be proved bj^ two wit aesses, but these are not required to be subscribing witnesses. Bright. Purd. Dig. 1872, ch. 171, § 4. 1 Connecticut, Gen. Stat. 1875, p. 369, §2; Florida, Dig. 1881, ch. 200, § 1; Georgia, Code 1882, § 2114; Maine, Kev. Stat. 1883, ch. 74, § 1; Maryland, Kev. Code, 1878, art. 49, § 4; Massachusetts, Pub. Stat. 1882, ch. 127, § 1 ; New Hampshire, Gen. Laws 1878, ch. 193, § 6; South Caro- lina, Gen. Stat. 1882, § 1854; Vermont, Rev. Laws, 1880, § 2042. 2 Hawes V. Humphrey, 9 Pick. 350; Haven v. Hilliard, 23 Piclc. 10; C arlton v. Carlton, 40 N. H. 14; Warren v. Baxter, 48 Me. 193. 3 1 Jarman on Wills, 65, 82; Amory v. Fellowes, 5 Mass. 219; Frink v. Pond 46 IST. H. 125, and cases cited. •* Greenl. on Ev., § 691. But see 1 Redtield on Wills, 255, and cases cited. « Carlton v. Carlton, 40 N. H. 14. See 1 Redfleld on Wills, 254, note. 552 CONVEYANCING. CH. XIII. claiming uudcr him, should be iibsolutely void, and such person admitted to testify. The same statute has been enacted in many of the American States, with various inoditications whicii have heretofore been noticed.^ Cred- itors are ordinarily excepted from the terms of the statute. Nor do the provisions of the statute extend to executors or devisees in trust.- Though where the execu- tor is entitled to commissions on the estate, it has been held that an interest is thereby created which renders him in- competent as a witness.^ A wife is not a competent wit- ness to her husband's will,* nor is she a competent witness to a will containing a devise to her husband.^ In most of the States, the statutes require that the wit- nesses shall sign at the request and in the presence of the testator; and in some of the States they are also required to sign in the presence of each other.'' In respect to the first requisite it has been held that it is not material at what time the testator requests the witnesses to attest his subscription to the will, whether immediately 1 Ante, § 520. The interest of au attesting witness of a will, to be dis- qualifying, must be a present, certain and vested interest. Lord v. Lord, 58 X. H. 7. 2 Murphy v. Murphy. 24 Mo. 520: Orndorff v. Hummer, 12 B. Mon.- G19; McDouough v. Laughliu, 20 Barb. 238; Eucker v. Lambdiu, 12 S. & M. 230; Comstook v. Hadlynie Society, 8 Conn. 254; Eedf. Am. Cases on "Wills, 174; Millay v. Wiley, 46 Me. 230; Jones v. Larabee, 47 Me. 474; Meyer V. Fogg, 7 Fla. 292; Sawyer v. Dozier, 5 Ired. (X. C.) L. 97; Wynian V. Hymmes, 10 Allen, 153; Estep v. Morris, 38 Md. 417; Chil- dren's Aid Society v. Loveridge, 70 X. Y. 387. s'l'u.-ker V. Tucker, 5 Ired. (X. C.) L. 441; Taylor v. Taj^lor, 1 Rich. L. .■i31; Morton v. Ingram, 11 Ired. (N. C.) L. 368; Workman v. Domi- nick, 3 Strobh. L. 589; Guuter v. Gunter, 3 Jones (X. C), L. 441; Spar- hawk V. Sparhawk, 10 Allen, 155. But see McDouougli v. Loughlin, 20 Barb. 238; Stewart v. Ilarriman, .")6X. II. 25. * Pease v. AHis, 110 Mass. 157. * Sullivan v. Sullivan, 106 ]Mass. 474. « Stimson's Amer. Stat., § 2044; Roberts v. Welch, 46 Vt. 164. This fact is coiiinionly stated in the attestation clause, but in most of the States it is not rei^uired that the witnesses shall sign in the presence of each other. Ela v. Edwards, 16 Gray, 91; Fliun v. Owen, 58 111. Ill; Johnson v. Johnson, 106 Ind. 475; Welsh v. Adams, 63 N. H. 344. ART. IV. EXECUTION OF WILLS. 553 before or immediately after sucii subscription, provided it be on tlie same occasion, and part of the same transac- tion.^ Neither does it seem to be important in what lan- guaf^e the request is made, nor whether it is proved by direct evidence, or sought to be inferred from circum- stances. The question is one for the jury to determine, whether the requisite request was made.^ The presence of the testator implies not only that he shall be bodily present, but he must also be in a conscious state. ^ It does not seem to be requisite that the witnesses shall be in the same room, or even in the same house, or that the testator shall actually see them sign, provided he might fee them subscribe their names if he would.* But the witnesses must be in such a situation that the testator could see the act done, and know ^vhether the paper which they attested was his will.^ 1 Seguine v. Seguine, 2 Barb. 38(5. Under the Georgia Code a will need only be attested and subscribed in the presence of the testator. The law implies the request so to do, in the consummation of the act. Huff v. Huff, 41 Ga. GOO. 2 Rutherford v. Eutherford, 1 Denio, 33; Crittenden's Est., Merrick's Probate (Cal.), 50; Doe v. Roe, 2 Barb. 200; Remsen v. Briuckerhoof, 26 Wend. 332; Briuckerhoof v. Remsen, 8 Paige, 489; Meurer's Will, 44 Wis. 392. The witnesses to a will must attest and subscribe the will in the presence of the testator, and at his request. It is not imperative, however, that the request should proceed directly and immediately from the testator himself. If the testator requests a person to prepare his will, informing him that he desires to make his will, and the Avill is pre- pared for execution in compliance with such request, and when ready f6r execution, the person who prepared the will calls upon persons present, in the presence and hearing of the testator, to attest and sub- scribe it, and in the presence of the testator and with his knowledge, they attest and subscribe it as attesting witnesses, it is, in contemplation of law, attested and subscribed by the request of the testator. Bundy v. McKnight, 48 lud. 502. The New Jersey statute does not require the testator to ask the witnesses to the will to Avitness its execution. Ayers V. Ayers (N. J.), 12 Atl. Rep. 621. 3 1 Jarman on Wills, 80; 2 Greenl. Ev., § 678. * Spoonemore v. Cables, 66 Mo. 579; Downie's Will, 42 Wis. 66; Man- deville v. Parker, 31 N. J. Eq. 242; Riggs v. Riggs, 135 3Iass. 238; s. c, 46 Amer. Rep. 464; Storey's Will, 20 111. App. 183; Maynard v. Vinton, 59 Mich. 139. 5 1 Redfield on Wills, 248, 249; McElfresh v. Guard, 32 Ind. 408; Meu- rer's Will, 44 Wis. 392. 554 CONVEYANCING. CH. XIII^ In New York, the statute does not require that the sign- ing by the attesting witnesses shall be in the presence of the testator.^ But it must be done at the time the will is executed, and with the knowledge and consent of the testator. - The same rules apply to the signature of a witness as to that of the testator, so far as to permit a witness to sign by mark ;^ or, if the witness cannot write, his hand may be guided by another.* But, according to the English cases, he cannot adopt a signature written by another, or by himself at another time.'' This rule has not always been followed in this country,^ and a late case in New Hamp- shire holds that on principle where an attesting witness ta a will is unable to write, all the purposes to be accomplished by attestation are as readily attained where the name of the witness is written for him by another at his request, as where the latter makes his mark or holds a pen guided by another hand.^ But the weight of authority seems to favor the proposition that, under a statute requiring the witnesses to subscribe the instrument in the presence of the testator, they must do some present act of attestation. It is not enough that they acknowledge signatures made the day be- fore the execution of the will.^ A person, to become a subscribing witness to a will, must sign his name or make 'Lyon V. Sniitli, 11 Barb. T24; Rudden v. McDonald, 1 Brad. 352. 2 If the witnesses did not see the testator sign nor see his signature or seal on account of the way the paper was folded when presented to them to sign, or hear the testator acknowledge his signature, the will cannot be probated. Be Mackay, 44 Hun (X. Y.), 571. 3 Ford V. Ford, 7 Humph. 92; Tridgen v. Pridgen, 13 Ired. (N. C.) 259; Meehan v. Rourke, 2 Brad. 385. ^ Harrison v. Elvin, 3 Q. B. 117; He Frith, 4 Jur. (N. S.) 288; Camp- bell V. Logan, 2 Brad. 90. * 1 .Tarniau on Wills, 77, and cases cited. "Pollock V. Glassell, 2 Gratt. 439; Jesse v. Parker, G Gratt. 57; Upchurcii V. I'pchurch, IG B. Mon. 102. ' Lord V. Lord, .58 N. H. 7; *•. c., 42 Anier. Rep. 5G5. » Chase v. Kittredge, 11 Allen, 49. So held, where the signatures were made in the presence of the testator, the will not being signed by the testator. Duflie v. Corridon, 40 Ga. 122. ART. IV. EXECUTION OF WILLS. 555 his mark, or do some physical act toward affixing or recognizing his name, which he intends as a subscription. He must be aware of the character of the act, and must subscribe his name animo testandi.^ The statutes in some of the States require that the witnesses shall sign at the end of the will,^ and this is so obviously the appropriate place for their signatures, that questions will seldom arise in reference to it, though in a late case in New York where there is such a provision of statute, a will written upon twa sides of a piece of paper, and signed by the witnesses at the bottom of the first and at the top of the second side^ an important provision of the will following the last signa- tures is not executed in compliance with the statute.^ The signatures of the witnesses should be as low, if not lower, than that of the testator, thus showing that their signatures were subsequent to that of the testator. As a matter of precaution, it is required in some States that the witnesses shall write opposite to their names their respective places of residence. A failure to comply with this provision usually subjects the defaulting party to a penalty, but does not invalidate the instrument or attesta- tion.* It does not appear to be absolutely essential that there should be any attestation clause. The entire omission of the attestation clause was held not sufficient to rebut the presumption in favor of the due execution of the instru- ment.^ But it is always desirable to add an attestation clause to a will, since it serves to show, Avhen complete, that the testator, or person preparing the will, was aware of 1 Koberts v. Welch, 46 Vt. 164. 2 New York, California, Arkansas, Dakota, Montana; and this is im- perative. Re Case, 4 Denio (X. Y.), 124. 3 Hewitt's Will, 91 N. Y. 261 ; O'Neirs Will, Id. 516. And see Moale V. Cutting, .59 Md. 510. * New York, California, Dakota, Montana. See Stimson's Amer» Stat., § 2644; Re Phillips, 98 N. Y. 267. 5 Pollock V. Glassell, 2 Gratt. 439 ; Redfield's Am. Cases on Wills, 622 ; Dean v. Dean, 27 Vt. 746; Re Phillips, 98 N. Y. 267. 556 CONVEYANCING. CH. XIII. the specific requirements for the due execution of the in- strument, and raises a strong j^resumption that they have been complied with. Besides, it aids the recollection of the witnesses as to what specific acts were done.^ In many of the States, by statute, the testator must, at the time of making or acknowledging his subscri|)tion to the will, give the witnesses to understand that the paper signed is his w^ill ; otherwise there is no sufiicient publica- tion.- But no set of words is required to publish a will.^ It is sufficient if the testator, at the time of its execution, was full}' ai)prised of its contents, knew it to be his will, and showed by his conduct that he intended it as such.* The publication may be inferred from all the circumstances.^ And in some of the States it has been held that witnesses 1 Inabilitj' of the subscribing witnesses to recollect that they signed at the request of the testator, does not authorize a finding that the statute requirements were not observed. Brown v. Clark, 77 N. Y. 369; Be Bogart, 67 How. (X. Y.) Pr. 117. 2 Bagley v. Blackman, 2 Lans. (X. Y.) 41; Kemsenv. Brinckerhoof, 26 Wend. 325; Roberts v. Welch, 46 Vt. 164; Ex parte Beers, 2 Bradf. (X.Y.)1G3. See Hunt V. Mootrie, 3 Id. 322; Irwin v. Irwin, 1 Redf. (N. Y.) 495; Be Sheridan, Id. 447; Baker v. Woodbridge, 06 Barb. 261. Ludlow V. Ludlow, 36 X. J. Eq. 597. 3 Be Beckett, 35 Ilun (X. Y.), 447. * Cillt^y V. Cilley. 34 Me. 162. See Reeve v. Crosby, 3 Redf. (X. Y.) 74; Ilollenbeck V. Van Valkenburgh, 5How. Pr. 281; Buntin v. John- son, 28 La. Ann. 796; Torrey v. Bowen, 15 Barb. 304; Huun v. Case, 1 Redf. (X. Y.) 307 ; Harrington v. Steos, 82 111. 50; Lane v. Lane, 95 X. Y. 494. A testator's acknowledgment of his signature in presence of the witnesses is sufficient. Webb v. Fleming, 30 Ga. 80S; Seguine v. Seguine, 2 Barb. 385; Robinson v. Smith, 13 Abb. Pr.359; Meurer's Will, 44 Wis. 392. The writing, signing and attesting constitute a sufficient publica- tion. Ray v. Walton, 2 A. K. Marsh. 71; Osboru v. Cook, 11 Cusb. 532; Dean v. Dean, 27 Vt. 746; Black v. Ellis, 3 Hill (S. C), 68. ^ Rogers v. Diamond, 13 Ark. 474; Haynes v. Haynes, 33 Ohio St. 598. Under the statute of Indiana, a testator need not, at the time of exe- cuting the will, inform the subscribing witnesses that the instrument which they are to sign is a will; nor need he see the witnesses subscribe their names to the will. It is sufficient if the instrument is subscribed in his presence. But the witnesses must know that the paper which they have subscribed is the one which the testator signed. Turner v. €ook, 36 Ind. 129. And see McKinley v. Lamb, 64 Barb. 199; Thomp- son V. Scastedt, 6 Thomp. & C. 78. ART. IV. EXECUTION OF WILLS, 557 to a will need not know the contents thereof, nor that the instrument is a will, and that they simply attest the genuine- ness of the signature. 1 § 543. HologTapliic Wills. — In the States below men- tioned, a will, wholly written and signed by the testator himself, will take effect on proof of his handwriting and signature, although there be no attesting witnesses.- The handwriting and signature of the testator are required to be proved in such case, in some States by two, and in others by at least three disinterested witnesses. In the case of a holographic will, a substantial compliance with the statute prescribing the method of publication is sufficient.^ 1 Flood V. Pragoff, 79 Ky. 607; Webb v. Fleming, 30 Ga. 808; Dickie V. Carter, 42 111. 376; Brown v. McAlister, 34 Ind. 375; Hulse's Will, 52 Iowa, 662; Osborn v. Cook, 11 Cusb. 532; Verdies v. Verdies, 8 Kich. L. 135; Young v. Barrett, 27 Gratt. 96; Allen's Will, 25 Minn. 39; Allen v. Griffin, 69 Wis. 529. 2 Arkansas, Dig. 1884, § 6492 ; California, Civil Code, § 6277. And see Billings' Estate, 64 Cal. 427; Kentncky, Gen. Stat. 1881, cb. 113, § 5. And see Toebbe v. Williams, 80 Ky. 661; Mississippi, Rev. Code 1880, cb.. 46, § 1262; North Carolina Code, 1883, § 2136; Pennsylvania, Purd. Dig. 1872, cb. 171, § 4. And see Fosselman v. Elder, 98 Pa. St. 159; Tennessee, Code 1884, § 3004; Texas, Rev. Stat. 1879, p. 712, § 4860; Virginia, Code 1873, p. 910, § 4; West Virginia, Code 1882, cb. 84, § 3.. But in two States (Tennessee andNortb Carolina), it is not good unless found among tbe valuable papers and effects of tbe deceased or ludged in tbe bouse of anotber for safe keeping. 3 Be Beckett, 103 X. Y. 167. 558 CONVEYANCING. ClI. XIV CHAPTKK XIV. — Of the Revocation and Republica- tion or Wills. Article I. Revocation. II. Republicatiou. ARTICLE 1. REVOCATIOX. SECTION. 54G. A will ahvaj's a revocable instrument. 547. Methods of revoking wills. 548. Revocation by subsequent will or codicil. 549. Bj- the eancollation or destruction of the will. 550. By the alienation or alteration of the estate. 551. By marriage and birth of issue. § 546. A Will is always a Revocable Instrument during the life of the testator, even though it be declared irrevo- cable in the strongest terms, because a man cannot, by any act of his own, make that irrevocable which in the judg- ment of the law is in its very nature revocable at his pleasure. But it seems to be settled that a conjoint or mutual will is irrevocable, in equity, after the death of one of the parties.^ And where two persons are authorized to dispose of an estate by will, and they jointly make and duly execute a will, it is not in the power of either, by separate act, to revoke the will so made.^ ' Day, Ef parte, 1 Bradf. (N. Y.) 47G, and cases cited. -Brotilhitt V. AVliittaker. SB. Mon. (Ky.) 530. Where a deed con- veyed land in trust for the uses declared in a will, it was held that neither the deed nor the will were revocable. Mayor, etc. v. Williams, G Md. 235. ART. 1. REVOCATION. 559 § 547. The Several Modes in which a Will may be Re- voked are divided into two general classes, namely, by act of the party, and by implication of law. The first men- tioned class come within the provisions of the Statute of Frauds which requires that the revocation of a will shall be by an instrument executed with the same formality as the will itself, or by some positive act of the testator which clearly evinces his intention to revoke or destroy it, such as burnint^, tearing, obliterating, or otherwise canceling or destroying it. A will duly executed cannot, therefore, be revoked by a subsequent will, or other writing of the tes- tator, unless such instrument be executed and attested as is requisite to make a valid will.^ And it cannot be offered in evidence as a revocation without a probate.^ A will may be revoked by implication or inference of law on account of certain chanoes in the testator's situation in life, as by marriage and birth of issue, or by alienation of the estate, which do not come within the purview of the statute. Each mode of revocation will be considered in separate sections. § 548. Revocation hy Subsequent Will or Codicil.^ — It seldom happens that a testamentary instrument is executed for the mere purpose of revoking a will, and therefore such instruments need not be considered.* The most ob- vious mode of revoking a prior will, when a new one is to be executed, is by an express clause in the subsequent will revoking all former wills. This clause is usually inserted in all wills, and is recommended wherever such is the inten- 1 Breathitt V. Whittaker, S B. Mon. (Ky.) 530; Reid v. Borland, 14 Mass. 208; Holliugshead v. Sturgis, 21 La. Ann. 450; Deakins v. Hol- lis, 7 Gill & J. 311; Laughtou v. Atkins, 1 Pick. 535; Blauchard v. Blauchard, 32 Vt. 62. 2 Laughton v. Atkins, 1 Pick. 535. 3 See Stimson's Amer. Stat. § 2673. •* We have seen in a previous section that a subsequent will, or other instrument in writing designed as a revocation, must, to have that effect, be executed and attested the same as an original will is i-equired to be executed. Ante, § 547. OuO CONVEYANCING CH . XIV. lion of the testator, in order that there may be no doubt or uncertainty upon the point. It is true that a man can- not die with two testaments, and, therefore, if there be two properly executed wills making different dispositions of the same property, the former will be revoked, so far as con- cerns the property, by the mere m.uking of the latter, with- out any clause of revocation whatever. ^ But if such wills are not inconsistent with each other, they may be probated as tof'ether constitutino- the last Avill of the deceased.^ The creneral rule is that a subsequent will does not revoke a prior one, but is to be taken as cumulative, unless it con- tains a clause of revocation, or is , ^consistent with the former will; and if the inconsistency be only partial, it is a revocation j07'0 tanto only.^ But if the second will or cod- icil expressly revokes all former wills, the latter cannot be admitted to probate, even though the revoking w^ill makes no disposition of the property disposed of in the will re- voked.* And it has been held that a later will, properly executed, revoking former wills, is effectual as a revocation though having been lost or destroyed, its contents (other than the revocatory clause) cannot be proved so that it can be allowed and executed as a will.^ The clause of revocation, however, is open to explanation, and, if it can be shown to ^ Evans v. Evans, 17 Sim. 107; Clarke v. Ransom, 50 Cal. 595; Reese V. Probate Court, 9 R. I. 434; Brant v. Willsou, 8 Cow. 56; Bartholo- mew's Appeal, 75 Pa. St. 169. Where a clause in the original will and one in a codicil thereto are entirely inconsistent, and both cannot be executed, the latter clause must prevail. Pickering v. Langdon, 22 Me. 413; Van Vechten v. Keator, 63 X. Y, 52; Brownlield v. Wilson, 78 111. 467; Dean's Prin. Conv. 440. A codicil will operate to revive orrepub- lisli a will and revoke another made before the codicil, and after the will to which it is annexed, unless such effect is negatived by the contents of the codicil itself. Neff's Appeal, 48 Pa. St. 501. The execution of a third win is a revocation of two former wills, although the last will is lost or mislaid, in which case parol evidence of its contents is admissi- ble. Legare v. Ashe, 1 Bay (S. C), 464. 2 1 Redfield on Wills, 350. •'' Brant v. Wilson, 8 Cowen, 56; Xelson v. McGiffert, 3 Barb, Ch. 158. * Matter of Thompson, 11 Paige (N. Y.), 453. « In re Cunningham (Minn.^, 36 N. W. Rep. 269. ART. I. REVOCATION. 561 have been inserted conti-arv to the intention of the testator, it will be void. § 545), Kevocation by Caiioellatioii or Destriietioii of the Will.^-To effect a revocation by oanceUation or destruc- tion of the will, there must be a concurrence of action and intention.- The act of burnino;, cancelino; or tearing: is nothino; unless it be done with the intention of revokino- the instrument, and not by accident or mistake.^ And this doctrine has been carried to the extent of holding that the destruction of a will by the maker in. a fit of temporarj^ insanity is not a revocation.^ On the other hand, if done with the intention of revoking the will, the act of spoliation may be very slight,'' such as partially tear- 1 As to provisious of Statute, see Stimson's Amer. Stat., § 2672. 2 But if a will be canceled with the iutentlou to make a new will and that purpose fails, the cancellation will be deemed to have been condi- tional, and will have no effect. Bethell v. Moore, 2 Dev. & B. 311 ; Jackson V. Halloway, 7 Johns. 394; Barksdale v. Barksdale, 12 Leigh, 535; Stover v. Kendall, 1 Coldw. 557; Seemes v. Seemes, 7 Harr, & J. 388; Means v. Moore, 3 McCord, 282; Harriston v. Harriston, 30 Miss. 276; Banks v. Banks, 65 Mo. 432: Wolf v. Bollinger, 62 111. 368. If an indorsement be made on a will indicating an intention to alter or modifj- it at a future day, this is no revocation of the will. Kay v. Walton, 2 A. K. Marsh. 71. 3 Wright V. Wright, 5 Ind. 389; Dickey v. Malechi, 6 Mo. 177; Burns V. Burns, 4 Serg. & E. 295; Burtoushaw v. Gilbert, Cowp. 52; AVolf v. Bollinger, 62 111. 378. As to what evidence iis sufficient to rebut the presumption that a will was destroyed animo revocandi. Dawsou v. Smith, 3 Houst. (Del.) 335. Where the testator having two wills in- tends to destroy one, but by mistake destroys the other, the destroyed will may be established as the will of the decased on proof of its con- tents, and in order to revive and establish that will the law does not require such proof as is necessary to give validity to an original will. Burns v. Burns, 4 Serg. & R. 295. If a testator, being induced to be- lieve that his will is invalid, tears it and puts it in the fire, but after- wards, thinking that he may be misinformed, he takes the pieces from the fire and carefully preserves them, there is no animus revocandi, and the will as contained in the pieces will be established. Giles v. Warren, L. R. 2P. &D.401. ■4 Forbing v. Weber, 99 Ind. 588. 5 If the destruction be as complete as was in the power of the testator, it will operate as a revocation. Sweet v. Sweet, 1 Redf. 451 ; Avery v. Pixley. 4 Mass. 460; Johson v. Brailsford. 2 Xott & McC. 272. The (36) Olo2 CONVEYANCING. CH. XIV. ino- it J drtiwiiiir Hues across it,- tearino; off the sio:nature of the testator, or of the attesting witnesses,^ burning it sliiz:litl\-, or crumpling it u[) and throwing it on the fire, and though it wore privately rescued and saved, this would be a sufficient revocation,^ But the act must be done and not merely intended. The intention of the testator to destroy it, or his belief that it has been done, will not amount to a revocation, unless some act be done towards the accomp- lishment of that purpose,-'' A will cannot be revoked by any intention of the testator, even though such intention is evidenced by a written statement, unless the statutory forms are complied with, or the ucts done amount to a re- vocation by cancellation of the will.*^ The question has degree of destroying or cancellation must depend upon the circum- stances of each case. Bohanan v. Walcot, 1 How. (Miss.) 33G. Where the maker of a will, with the intention of revoking it, hurned a paper which she thought to be her ^vill, 1)iit, by mistake or fraud of others, burned a different paper, and continued in the belief that she had re- voked the will, without knowledge of its existence, this was held to amount to a revocation. Smiley v. Gambill, 2 Head (Tenn,),164, 1 Mole V. Thomas. 2 \V. El. 1043. 2 The cancellation of a will by drawing lines across it is an equivocal act and may be explained by circumstances. Bethell v. Moore, 2 Dev. & B. (N. C.) L, 311, 3 Though a seal is not requisite to a will, yet if one is affixed to it and is torn off, this will amount to a revocation if so intended. Avery v. Pixley, 4 Mass. 4G0. * White v, Casten, 1 Jones (N. C.) L. 1U7. 5 Gains v. Gains, 2 A, K. Marsh, (Ky.) 190; Smiley v. Gambill, 2 Head (Tenn.), 164; Jackson v. Betts, Cow. (N. Y.) 208. See Dela- field V. Parish, 1 Kedf. fX. Y.) 1; s, c, 25 N. Y. 'J; Bjauchard v. Blanchard, 32 Vt. 62; Nelson v. Pub. Admr., 2 Bradf. (N. Y.) 210; AVarner V. Warner, 37 Vt. 356; Perjue v, Perjue, 4 Iowa, 520; Ray v. Walton, 2 A. K. Marsh. (Ky.) 71; Witter v. Mott, 2 Conn. 67; Brown v. Thorndike, 15 Pick. (Mass.) 388; Chirk v. Kborn, 2 Murph. 235; Glass- cock V. Smither, 1 Call, 479; Marr v. Marr, 2 Head, 303; Clark v. Smith, 34 Barb. 140: Barker v. Bell, 46 Ala. 216; Timtn v. Claffey, 45 Barb, 438; Spoonemorev. CaJles, 66 Mo. 579. « Dower v. Seeds, 28 W. Va. 113; Slaughter v. Stephens, 81 Ala. 418, He must execute soiue one of the acts prescribed t»y the statute to effect his intention of revocation. Means v. Moore, 3 McCord (S. C), 282; Gains v. Gains, 2 A. K. Marsh. (Ky.) 190; Clark v. Smith, 34 Barb. 140; Heisev. Heise, 31 Pa. St. 246; Wrigbt v. Wright, 5 Ind.389. ART. I. REVOCATION. 563 been much discussed, both in En^hmd and in this country, whether the mere cancellation of a will containing a clause revokin": former wills does or does not revive a former will. Upon this question the authorities are neither few nor uniforn:.^ In England and in some of the States the controversy has been settled by a statutory declaration that an earlier will shall not be revived by the cancellation of a later one, unless such intent appears in the terms of the revocation, or the tirst will be duly republished after such cancellation.^ But in the absence of statute the weight and tendency of authorities seems to be in favor of the propo- sition that such cancellation shall not operate as a revival of a former will, in the absence of evidence to show that testa- tor intended and meant to so revive it, and for that purpose declarations of the testator are admissible in evidence.^ It requires the same capacity to revoke a will that it does to make one.* The testator must be capable of under- standing the nature and effect of the act ; and must perform it, or direct it to be done, freely and voluntarily. And if a will has been destro^'ed by mistake, or through fraud or deception, it may be established by proof of its contents.* 1 See note to Pickens v. Davis, 45 Amer. Kep. 322, 327. 2 New York, Kev. Stat., pt. 2, ch. 6, art. 1, § 53; Oliio, Rev. Stat., 1880, § 5960; Indiana, Rev. Stat., 1 SSI, § 2559; Kansas, Comp. Laws 1879, ch. 117, § 38; Missouri, Rev. Stat., 1879, § 3968; Arkansas, Dig. 1884, § 6.503; California, Uitt. Code, 1876, § 6297; Nevada,, Comp. Laws, 1873, § 820; Georgia, Code 1882, § 2472; Alabama, Code, 1876, § 2297; Dakotah, Civ. Code, § 707. 3 Pickens V. Davis, 134 Mass. 252; Harwell v. Harwell, 30 Ga. 315; Williams v. Williams, 142 Mass. 515; McClure v. McClure (Tenn,), 6 S. W. Rep. 44. And see Williams v. Williams, 142 Mass. 515. ^Ladd's Will, 60 Wis. 187. 5 As to the subject generally, see 1 Redf. on Wills, 303-332; 3 Washb. Real Prop., 4th ed,, 535; 4 Kent's Com., 521; Willard on Real Est. and Couv., 493. If the will were entirely destroyed during insanity, there could be no revocation on that account; for a testator can no more re- voke his will, he being insane, than he can while insane make a compe- tent and valid will. Smith v. Wait, 4 Barb. 28; Rhodes v. Vinson, 9 Gill, 169; Ford v. Ford, 7 Humph. 92; Forman's Will, 54 Barb. 274; Forbing v. Weber, 99 Ind. 588. "If a person of sound mind had made a will, and afterwards, when of unsound mind, hs.dbeen prevailed upon to make another, revoking the former, it could not be pretended 5()4 CONVEYANCING. CH. XIV. § r)5(). Kev<»cation by the Alienation or Alteration of tlie Estate. — There is an implied revocation iuthe luitureof aileaiption, which arises either when the subject of the be- quest is altered or parted with by the testator, or when the purpose for which it was bequeathed has been provided for by iiini b}- other means. It is to })e remembered that a will cannot operate upon any propcity in which the testator has no interest at the time of hisdeatii and when the will takes effect. Therefore, the general rule is that, if after makin;er exists in such case.^ Though a recent Massachusetts case holds that under the statute pre- scribino; the modes of revokino; a will and recoo;nizinor revo- cation, "iini)lied by law from subsequent change in the con- dition or circumstances of the testator," a woman's will is revoked by her subsequent marriage. ^ Again, in several of the States, it is provided that "every will, made by a man or woman, shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her heirs, personal representatives, or next of kin." * In other States, the provision is, that marriage of the testator and birth of a child is a revocation, unless provision is made in the will in contemplation of such event.^ In Nevada and Delaw'are, the statutes provide that marriage shall revoke the will, chusetts, see Blodgett v. Moore, 141 Mass. 75; Xew York, Eev. Stat., pt. 2, ch. 6, art. 1, § 44; Oregon, Stat. 1872, cb. 64, § 7; Rhode Island, Pub. Stat. 1882, ch. 182, § 6. 1 Ohio, Rev. Stat. 18S0, § 5958. 2 In re Tuller, 79 111. 99; Webb v. Jones, 36 X. J. Eq. 163; Fellows v. Allen, 60 X. H. 439; s. c, 49 Amer. Rep. 328, with note : Ward's Will, 70 Wis. 251. 3 Swan V. Hammond, 138 Mass. 45. And see Nutt v. Xorton, 142 Mass. 242. •» Kentucky, Gen. Stat. 1881, ch. 113, § 9; North Carolina, Rev. 1883, § 2177; Virginia, Code 1873, p. 910. § 7; West Virginia, Rev. Stat. 1882, ch. 84, § 6. In Illinois, Rhode Island, Connecticut, Virginia, West Virginia, Kentucky, North Carolina and Missouri, the will of a man is revoked by subsequent marriage. Tyler v. Tyler, 19 111. 151; American Board V. Nelson, 72 HI. 5G4; Duryea v. Duryea, 85 111. 81; Stimson's Amer. Stat., § 25. 5 Alabama. Code 1876, §§ 2282, 2283; Arkansas, Dig. 1884, § 6495; California, Civil Code, § 1298; Connecticut, Gen. Stat., 1875, p. 370; § 6; Missouri. Rev. Stat., 1879, § 3964; New York, Rev. Stat., vol. 3. p. 63, § 41; Oregon, Gen. Laws 1872, ch. 64, § 6. 5l)8 CONVEYANCING, CII. XIV. unless provision be made for the wife.^ And in several of the States, the birth of a posthumous child, for whom no provision is made, revokes a will.'- In many of the States, there are no statutes in regard to im[)licd revocations, in some of which they appear to be abolished,'^ while in others the statutes, providing for express revocations, provide also, that nothing therein shall be construed to prevent the revo- cation implied by law from subsequent change in the con- dition or circumstances of the testator.* ARTICLE II. REPUBLICATION. SECTION. 553. Express republication. 554. Cou.structive republication. § 553. Expre.s.s Republication. — A will once revoked cannot 1)0 republished by [)arol. As a general rule, the same forms and solemnities are requisite for the republication of a will as for its original [jublication.^ Republication is 1 Nevada, Coinp. Laws, § 821; Delaware, Laws 1877, cb. 84, § 23. And see Stokes v. OTallon, 2 Mo. 29; Walker v. Hall, 34 Pa. St. 483; Edward's Appeal, 47 lud. 144. 2 Iowa, Rev. Code, 1880, § 2334; Maine, Rev. Stat., 1871, ch. 74, § 8; Texas, Hev. Stat., 1879, §4867; Mississippi, Rev. Code, 1880, ch. 46, § 12(i4; Morse v. Morse, 42 Ind. 365. In Georgia, by statute "marTriage or birth of child"' constitutes a revocation. Code, 1873, § 2477; Hart v. Hart, 70 Ga. 764. 3 Colorado. Laws 1877, p. 930, § 4; North Carolina, Code, 1883, § 2178. ^ Arizona, Comp. Laws, ch. 28, § 9; Maine, Rev. Stat., 18G1, ch. 74, § 3; Massachusetts, Gen. Stat., ch. 92, § 11; Michigan, Conip. Laws, ch. 154, § 9; Minnesota, Stat., 1873, ch. 35, § 9; Nebraska, Comp. Stat., 1881, p. 227, § 132; Vermont, Rev. Laws, 1880, § 2047. ^Jack v. Shoenberger, 22 Pa. St. 41G; Barker v. Bell, 46 Ala. 216; Love V. Johnston, 12 Ired. 355; Warner v. Warner, 37 Vt. 356; Carey v. Baughn, 36 Iowa, .540. But in Pennsylvania this does not prevent a ART. II. REPUBLICATION. 569 equivalent to muking the will anew; that is, the will re- published is a new one, and, upon the principle that of any number of wills the last and newest is in force, it revokes any will inconsistent with it, of a date prior to the re[)ubli- cation. A will may also be republished by a new will, as where the testator by a subsequent will revoke the re- vocatory will, and by its terms shows that it was the inten- tion to revive and give effect to the first will.^ § 554. Constructive Republication. — A codicil duly exe- cuted is a constructive republication of the will to which it refers, whether it is annexed to the will or not; for it fur- nishes conclusive evidence that the testator considered his will as still existing. 2 So, a codicil may republish a will, so as to give effect to a devise otherwise void on account of the devisee being a witness to the original will.^ And a will not duly attested, or made under undue intluence, may be republished and made operative by a codicil properly exe- cuted afterward when the testator is free from such influ- ence; but it should distinctly refer to it, or be annexed to the will.* But if it should appear on the face of the codicil that it was not the intention of the testator to re- publish a former will, the ordinary presumption derived from the existence of a codicil in that respect will be coun- teracted.^ The codicil, when made, brings the will to it parol republicatiou. Jones v. Hartley, 2 Whart. 103. But contra, Witter V. Mott, 2 Conn. 67; Warner v. Warner, 37 Vt. 356; Love v. Johnston, 12 Ired. 35.5; Cogclell v. Cogdell, 3 Desaus. 346; Carey v. Baiighu, 36 Iowa, 540. 1 Under the Virginia Code, 1873, ch. 118, § 9, it was held that revoking a will which contained a revocation of a previous will did not revive the former will. Rudisill v. Rodes, 29 Gratt. 147. So, iu Missouri, a first will is not revived by the revocation of the second, unless the former will be duly republished. Beaumont v. Keim, 50 Mo. 28. - Williams on Executors, 184; Mooers v. White, 6 Johns. Ch. 375; 1 Hill, 590; Brown v. Clark, 77 X. Y. 369; McCurdy v. Weall (X. J.), 7 Atl. Kep. 566. 3 Willard on Real Estate and Conveyancing, 499. ^Stover V. Kendall, 1 Coldw. 557; Harvy v. Chouteau, 14 Mo. 587; O'Xeal V. Farr, 1 Rich. 80. 5 Kendall v. Kendall, 5 Munf. 272; Van Cortland v. Kip, 1 Hill, 590. 570 CONVEYAXCING. CH. XIV. and makes it a will from the date of the codicil, no matter how loiiir it may have been written, or what its orijxinal date may bc.^ Therefore, lands purchased after making a will, and before the codicil or republication, may pass by the will when republished.- It siiould be observed that between a codicil and a subsequent will, there is this difference of construction ; a codicil is a republication and ratification of so much of the prior will as it does not revoke; whereas a new will, though inconsistent in part with the former will, and absolutely agreeing in i)art, revokes the w'hole prior will, by substituting a new and last disposition for the former one.^ ' Haven v. Foster, 14 Pick. 534; Brimmer v. Sohier, 1 Gush. 118; Bar- ker v. Bell, 4G Ala. 21G; Jones V. Shewmaker, 35 Ga. 151; Harv\' v. Armstrong, 14 Mo. 587. 2 Mooersv. White, G Johns. Gh. 375; Miles v. Boyden, 3 Pick. 213; Haven v. Foster, 14 Pick. 543; Browuell v. DeWolf, 3 Mason, 486; Bar- ker V. Bell, 46 Ala. 216; Luce v. Dimock, 1 Root, 82. ■■' Simmons V. Simmons, 26 Barb. 68; Haven v. Foster, 14 Pick. 534; Payne v. Payne, 18 Gal. 291; Mooers v. White, 6 Johns. Gh. 375; Dun- can V. Duncan, 23 111. 364. ART. I, PROBATE OF WILLS. .'iTl CHAPTER XV.— Of the Pkohate of ^\'lLLs, and OF THEIR KeGISTEATION. Article f. Of the Probate of Wills. ir. Of the Eegistration of Wills. ARTICLE I. OF THE PROBATE OF WILLS. SECTION. 557. Preliminaiy to the probate. 558. Jurisdiction of the probate of wills — foreign wills. 559. Mode of proof. 560. The effect of probate. § 557. Preliminary to the Probate A will takes effect upon the death of the testator, ^ and the devisee may at once enter upon the land devised to him. But before the will can be used in evidence, or its provisions carried into effect by the executor, it must be proved in the proper tri- bunal to be the last will and testament of the deceased. Of course, such proof cannot be made until after the death of the testator, since before his death the will is merely linchoate, and liable to be altered or revoked at any time.- • Castro V. Castro, 6 Cal. 158. 2 Provisions for the deposit and safe-keeping of wills of living persons 572 CONVEYANCING. CH. XV. The death of the testator must, therefore, be established before tliu will can be admitted to probate. The kind and degree of proof required for this purpose will vary accord- ino; to the circumstances. It is suggested by Mr. Kedficld that, in a majority of cases, the thing will bo of such com- mon notoriety that nothing more will be required.^ "When a doubt arises upon the question, if the death cannot be proved by suflicicnt witnesses, recourse may l)e had to the presumptions of law. There is a presumption of law that a person who has been absent, and has not been heard from for seven years, is dead; but, in the absence of special cir- cumstances there is no presumption of his death at any par- ticular period during that time."- The party interested in showing the death at any particuUir time assumes the bur- den of proof, and is at liberty to show it b}' any facts or circumstances satisfactorv to the court. ^ The time tixed by law for the production of a will after the death of the testator is, ordinarily, governed by no tixed rule, but is left to the discretion of the court to be deter- mined in accordance with the local statutes and the circum- stances of the case.* If the time is so remote as to suggest special motives for delay, it should be satisfactorily ac- counted for upon the records. The time within wdiich probate of a will must be matle varies in the different States from three to thirty years. '^ hiive been made in some of the States, but the will is not to be delivered forth except to the testator, or become of any effect, until after his death.. See Stinson's Amer. Stat., § 2G90. 1 :} Redfield on Wills, 4th ed., 4, note. - The presumption of life ceases at the end of seven j-ears from the period when he was last heard from. Whiting v. Nicholl, 46 111. 230. Wliitiug V. Nicholl, supra. Evidence to raise the presumption of death at any particular time within seven years, need not be direct and positive; but it should be of such a character as to make it more proba- ble that he died at a particular time than that he survived. Hancock v. Amer. Life Ins. Co., 02 Mo. 26; Tisdale v. Conn. Mut. Life Ins. Co., 26. Iowa, 170. ' Wuerner's Amer. Law of Administiation, § 214. • In Colorado, the person having possession of a will, is required ta produce it for probate within ten days after the death of the testator, or ART. I. PROBATE OF WILLS. 573 The executor is presumed to have the custody of the will, and is primarily the piopcr person to initiate measures for its [)roof. At common law no other person had a right to prove the will, until the executor had renounced the trust. ^ But in the American States, as a general rule, any person interested in the estate may cause it to he proved. And any person in possession of the will may be compelled, by cita- tion from the proper court, to produce the same for probate, or to give testimony as to his or her knowledge of its exist- ence or deposit. And where a will has been lost or mislaid, whether accidentally or by design, its contents may be proved and probate granted of the same, within such re- strictions as the law prescribes, or the couit may deem proper and satisfactory .- § 558. Jurisdiction of the Probate of Wills — Foroigu AVills. — The jurisdiction of the probate of wills is, prima- rily, exclusive in the probate court, or court having probate jurisdiction, in the county or district in which the testator is domiciled at the time of his death. Savs Mr. KedHeld: *' This general rule is of such universal acceptance in all as soon thereafter as the decease of .sucli testator shall coine to his knowledge. Laws 1877, § 2797. lu Connecticut, it is provided that no will shall be proved after ten years from the death of the testator; but any minor shall be allowed, three years after becoming of age to cause the same to be proved. Gen. Stat., 1875, p. 371, § 11. In Main, Oregon and Tennessee, the limitation for probathig wills is twenty years. Maine. Kev. Stat., 1883, ch. 61, § I.Tennessee, Townsend v. ToAvuseud,4Coldw. 70. Ohio, four 3-ears, Rev. Stat. 1880, § 5943. And see Carpenter v. Denoon, 29 Ohio St. 379. Kentucky, thirtv j-ears. Hunt v. Hamilton 9 Dana, 9. Indiana, three years. Rev. Stat. 1881, § 2575. Xew York, four years, 3 Jarm. 720. Will devising lands may be admitted to |)robate at any time after the death of testator in absence of a statutory limitation. Haddock v. Boston & M. R. R. 146 Mass. 155; Rebhan v. Mueller, 114 111. 343. ^ Williams on Ex., Gth Am. ed., 355. A person, not being an exiLiiior. named in the will, cannot propound it, until he has shown that he has an interest in the same bj' tiling his own affidavit thereof, or by SDUie other evidence. Finch v. Finch, 14 Ga. 362. 2 Redlield on AVills, 4lh ed., 15, 703; Keams v. Keams, 4 Harr. (Del.) ■83; Graham v. O'Fallon, 3 Mo. 507; Kitchens v. Kitchens, 39 Ga. 168; Matter of Johnson's Will, 40 Conn. 587; Morris v. Swaney, 7 Heisk. 591. 574 CONVEYANCING. CH. XV. the American States, as scarcely to require any authority in its contirniatiou."^ It is no less true, that a will of real estate must be executed and proved in accordance with the hiw of the place where the land is situated.'^ Though,, ill some of the States, it is provided that a will, exe- cuted and proved in accordance with the law of the place ill which the same was mnde, or in whicli the testator w'as- at the time of his death, may l)e admitted to probate, and will be valid and effectual.'' Jt is usually required that a foreign will shall be probated both in the home jurisdiction and in the place where the land is situated. A copy of the will and of the [)robate thereof is filed in the latter juris- diction, and, when allowed, has the same effect as a will originally probated there. ^ In some of the States, wdien a will has been duly probated in the place of the testator's domicile, a copy of such will and of the probate thereof,. 1 3 Redlield on Wills, 4th ed., 20. - Lockwood V. J^ockwood, 2 N. Y. !?upp. 224. 3 California, Civil Piocedure, § 1324; Colorado, Laws, 1877, § 2S14;.. Kansas, Conip. Laws, 1879, p. 1003, § 25; Massachusetts, Gen. Stat.,, p. 478, §21; Michigan, Conip. Laws, 1871, p. 137.5, § 21; Nebraska, IJrowu's Coinp. Stat., 1881, p. 229, § 144; New Jersey, copy of will duly certified may be used in evidence, Rev. 1877, p. 1250, §§ 3(5, 37; ftah,. Comp. Laws, 1876, p. 286, § 26. •• Arkansas, Dig. of Stat., § 6513; California, Civil Procedure, §§ 1322,.. 1323, J324; Colorado, Laws, 1S83, § 3507; Dakota, Laws, 1862, §§ 22, 25; Indiana, Stat., 1881, §§ 2.591, 2593; Iowa, Rev. Code, 1880, § 2353; Vance V. Anderson, 39 Iowa, 426; Kentucky, Gen. Stat., 1879, p. 838, § 30; Maine, Rev. Stat.. 1883, p. .508. § 13; :\rarylaud, foreign will subject to. be coutcsted until probated in this State, Rev. Code, 1878, p. 424, § 29;. Massachusetts, Gen. Stat., p. 749, § 151; Michigan, Ann. Stat., §5805; Minnesota, Stat., 1878, p. 569, § 18; Mississippi, Rev. Code, 1880, § 1976; 36 .Miss. 150; Nebraska, Conip. Stat., 1881, §§ 145-147; Nevada, Comp. Laws, 1873, §§ 507-509; North Carolina, Code, 1883, §§ 21.56, 2157; Feun- sylvauia, Brightley's Purd. Dig., vol. 1, p. 404, § 7; Rhode Island, Gen. Stat., ch. 172, §§ 6-10; South Carolina, Rev. Stat., 1881, § 1751; Tennes- see, Code, 1871, §§ 2182-2190; Utah, Comp. Laws, 1876, p. 286, §§ 26-28; Vermout, Rev. Laws, 1880, §§ 20.57, 20.58; Virginia, Code. 1887, § 2.536. In a fi'w of the States, it seems not to be requisite that the will shall have beeu lirst proved in the jurisdiction in which the testator died. Connecticut, Gen. Stat., 1875, p. 370, § 10; Delaware, Laws, 1874. p.. 539, § 1 ; Illinois, Rev. Stat., 1880, p. 1110, § 10. ART. I. PROBATE OF WILLS. 575 duly certified, may be recorded in llie county in wiiicli the land is situated, and such record has the effect of a probate in the latter jurisdiction.' The manner of certifying copies of records to be used in another State is regulated by act of Congress, which reads as follows : " All records and exemplifications of books, which may be kei)t in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not a})pertaining to a court, shall be [)roved or admitted in any court or office in any other State or Territory, or in any sucii country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish or district in which such office may be kept, or of the Governor or Sec- retary of State, the Chancellor or keeper of the great seal of the State, or Territory, or Country, that the said attesta- tion is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified, or, if given by such Governor, Secretary, Chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or Country ' Alabama, Dickey v. Vaun, 81 Ala. 425; Delaware, Laws, 1874, cU. 84, § 6; Florida, Laws, 1881, p. 987, §§ 8, 9; Georgia, Code, 1882, §§ 2433, 2434; Illiuois, Rev. Stat., 1885, p. 2471, § 0; [in Illinois, a will executed in auother State, and which has been proved there, is admissible in the courts witliout having been admitted to probate in Illinois provideil the record of the probate proceedings is authenticated in conformity with the act of Congress, Neuman v. Willetts, 5 111. OS] ; Kansas, Comp. Laws, 1879, p. 1003, § 24; Missouri, Rev. Stat., 1879, § 3993; New York, Rev. Stat., vol. 3, p. 59, § 14; Ohio, Rev. Stat., 1880, {i 5938; Oregon, Code, 1887, § 3083 ; Tennessee, a copy so authenticated and recorded may be used in evidence, Code, 1884, § 3024; Texas, on tiling a copy as above, letters of administration shall be granted. Rev. Stat., 1888, § 1850; AVis- consin. Rev. Stat., 1878, § 2295. See Infra, Art. II. 57() CONVEYANCING. CH. XV. aforesaid in which it is made. And the said records and cxonipliiications, so authenticated, shall have such faith and credit fiven to them in evei-y court and office within the United States, as they have by law or usage in the courts or offices of the State, Territory, or Country, as aforesaid, from which they are taken." ^ § 5.51). The Mode of Proof. — There are two ways of proviiis:; wills at coninion law, namely : in common form and in solemn form, or per testes. The former is where the executor presents it before the court, and in the ab- sence and without citing the parties, produces the evidence to prove its execution. Tlie latter includes those cases in whicli ;i contest is anticipated, when the widow and next-of- kin must be cited to be present at the probation of the will. 2 And this is the division of causes for the proof of wills ma(!e by the statute of Georgia.' But in this country the two classes are more commonly called contested and non-contested cases.* In some of the States the proceed- ings are the same in either case. It is usually required that the ])arties in interest shall bo notified, either personally or by the publication of a general notice,^ and that one or more of the witnesses shall appear and testify to the due execu- tion of the will. If the witnesses are not attainable, the will may, in general, be established by proof of the haiidwrilins of the testator and of the witnesses. And ancient wills have been established by proof of the hand- writinn: of the testator alone. •• But before such evidence is admissible, it must be shown that diligent search has been made for the witnesses, or their absence must be accounted for." Ill some of the States, provision is made for taking 1 Rev. Stat. United States, 2d ed., 1878, § 906. « 1 Williiuns on Ex. 291, 298. "CoilclS::}, §ii 242'?. 2424. * :i Kedfield on Will?. 3(3. » Estate of Cobb, 49 Cat. 600. A will, ordered to probate without citation to the next of kin, resident within the State, or to their guard- ian-^, they being minors, is erroneous. Lees v. Brownings, 1.5 Ala. 49.5; Stapleton v. Stapleton, 21 Ahi. 5!s7. B Duncan v. Beard, 2 Nott & McC. 400. T .Miller V. Miller, 2 BiP" 'X. C.) 76. ART. I. PRORATE OF WILLS. 577 the (Ie[)Osition of witnesses residing out of the jurisdiction of the court. No compilation of statutes has been made on this subject, for the reason that it is a matter of local practice, upon which the practitioner will require more spe- cific information than it would be consistent with the design of the present work to undertake to give. The facts required to be proved by the witnesses will be governed by the requisites for the execution of the instru- ment. As to the degree of proof required, or the ground of presuming that the requirements of the law have been complied with, and that the testator knew the contents of the instrument at the time of executing the same, no defi- nite rule can be laid down. This is a question for the triers of the facts to determine, under all the circumstances of the particular case.^ The burden of establishing a will is on the proponent.^ § 560. The Effect of Probate. — The legal consequence of the exclusive jurisdiction of courts of probate in decid- ing on the validity of wills is, that their decrees are con- clusive of the rights directly determined, and are not open to be contested in any other court, except on appeal or writ of error. ^ The finding of such court cannot be impeached 1 Redfield on Wills, 4th ed., 41-51 ; "Woerner's Law of Administration, §§ 217, 218; Auburn Tlieo. Sem. v. Calhoun, 62 Bai'b. 381. 2 Eiddell v. Johnson, 26 Gratt. 152; Evans v. Arnold, 52 Ga. 169; Har- ris V. Vanderveer, 21 N. J. Eq., 521 ; McGinnis v. Kempsey, 27 Mich. 363 ; Williams V. Robinson, 32 Vt. 568; Jamison v. Jamison, 3 Houst. 108. The burden of proof in an issue of devisavit vel non, to prove the valid- ity of a will, is upon the party claiming under the will; but upon an allegation of want of capacity in the testator, it is upon the contestants. Puryear V. Reese, 6Coldw. 21. And see McKinley v. Lamb, 56 Barb. 284; Garvin V.Williams, 44 Mo. 465. But held, under the statute of Minnesota that the burden of proof to establish the sanity of testator is upon the proponent. Layman's Will, 42 N. W. Rep. 286. The propo- nents of a will hold the affirmative and must establish its due execution. If, however, the attestation clause is full, and the signatures genuine, and there are circumstances corroborative of due execution, and no ev- idence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with. Matter of Kellum, 52 N. Y. 517. ^Osgood v. Breed, 12 Mass. 533; Parker v. Parker, 11 Cush. 519; Brown (37) 578 CONVEYANCING. CH. XV. even by showing fnmd, except by a proceeding in the same court to annul oi' modify the same. It cannot, therefore, be shown, collaterally, that another person was appointed executor, or that the testator was insane, or that the will of which the probate was granted was forged. ^ But the rule would be otherwise, where the court granting the probate had no jurisdiction of the case."- Courts of equity have jurisdiction of the construction of wills after probate, un- der which the force and effect of a will may be limited or qualitied, and in some cases the construction has been such as to render portions of the will practically inoperative.^ The above points and authorities arc given as illustrative of the general doctrine. By reference to the statutes of the several States, it w'ill be found that, in some States, it is provided that the probate of wills of real estate shall be conclusive after the lapse of a certain number of years, but in the meantime be open to consideration. In other States, the probate is prima facie evidence of the due ex- ecution of the will, but is not conclusive, and may be liti- gated whenever rights to real estate claimed under the will are litigated. V. Wood, 17 Mass. G8, 72; Dublin v. Chadboum, 16 Mass. 433; Tomp- kins V. Toinpkius, 1 Story, .547; Poplin v. Hawke, 8 N. H. 124; Fortune V. Buck, 23 Conn, 1; Sneed v. Ewing, 5 J. J. Marsh, 4G0; Dilworth v. Kice, 48 Mo. 124; Hall v. Hull, 47 Ala. 290. The probate of a will while it settles the question of due execution, does not establish its validity or determine its force and effect upon titles to real estate claimed under it. Ware v. Wisner, 4 McCrary C. C. 66. ' r)ublin V. Chadboum, 10 Mass. 433. So, the decree of the court of probate, duly approving and allowing the will of a married woman, uuapi)ealed from and unreversed, is final and conclusive upon the heirs-at-law of the testatrix, and they cannot in a court of conimon law deny the legal capacity of the testatrix to make such will. Parker V. Parker, 11 Cush. 52.'). 2 Crosby v. Leavitt, 4 Allen, 410; Holyoke v. Ilaskins, 5 Pick. 20; Sumner v. Parker, 7 Mass. 79; Smith v. Rice, 11 Mass. 507; Sigour- ney v. Sibley, 21 Pick. 101. •■'Kedlield on Wills, 4th ed., 56-65; 1 Williams on Exrs., Gth Am. ed., 616-638. ART. II. REGISTRATIOX OF WILLS. 579 ARTICLE 11. OF THE REGISTRATION OF WILLS. SECTION. 563. Will :iud proof to be recorded in the office of probate. 564. Certified copies may be used in evideuce, or recorded in other counties. 565. Foreign wills probated and recorded as other wills. 566. Where wills are to be recorded in registry of deeds. § 5(53. AVill and Proof to be Recorded in the Oflice of Probate. — In nearly all of the States, it is provided that, when a will has been admitted to probate, it must be re- corded in the office of the probate judge, or clerk of the court having probate jurisdiction, together with the proof of such will and the certificate admitting it to probate, and that the original shall be filed and preserved in that office. ^ In a few of the States, the statutes seem to contemplate that a will shall be filed and remain among the records of such court, and that no further record shall be made of it, except such as may be made upon the docket, relative to its probate.^ 1 Alabama, Code, 1876, §§ 2169, 2310; Arkansas, Dig. of Stat., 1874, §§ 5781, 5797; California, Civil Procedure, § 1318; Colorado, Stat., 1883, § 230; Delaware, Laws, 1874, p. 539, § 1; Florida, Bush's Dig., p. 53, § 15; Georgia, Code, 1873, § 2432; Illinois, Stat., 1883, ch. 30, § 33; Indiana, Stat., 1876, vol. 2, § 30; Iowa, Rev. Code, 1880, § 2342; Kansas, Comp. Laws' 1879, p. 1002, § 16; Kentucky, Geu. Stat., 1879, p. 837, § 26; Maryland, Rev. Code, 1878, p. 424, § 29; Massa- chusetts, Gen. Stat., p. 576, § 21; Michigan, Comp. Laws, 1871, p. 1378. §§ 37, 38; Minnesota,Stat., 1878, ch. 47, §35; Mississippi, Rev. Code, 1880, § 1975; Missouri, Rev. Stat., 1879; § 3988; Nebraska, Comp. Stat., 1881, pt. 1, ch. 73, § 22; New Hampshire, Gen. Stat., p. 359, § 1; New Jersey, Rev. Stat., 1877, p. 221, § 9; New York, Rev. Stat., p. 59, § 12; Ohio, Rev. Stat., 1880, vol. 2, § 5930; Rhode Island, Gen. Stat., 1872, p. 376, § 4; Tennessee, Stat., 1871, § 2169; Texas, Rev. Stat., 1879, art. 4876; Virginia, Code, 1873, p. 916, § 37; West Virginia, Kev. Stat., 1879, vol. 2, ch. 201, § 30. 2 See Connecticut, Gen. Stat., 1875, p. 369, § 2; Maine, Rev. Stat., 1871, p. 565, § 15; North Carolina, Battle's Rev., 1873, p. 853, § 38. 580 CONVEYANCING. OH. XV. § 564. Certified Copies may be Used in Evidence, or Recorded in other Counties. — It is usually provided that a will duly proved, recorded, certified by the judge or clerk, and attested by the seal of the court, or a copy of the record of such will properly authenticated, may be read in evidence without further proof. ^ And where lands con- veyed by will are situated in diffeient counties, a copy of the will should be recorded, in each county. In some of the States, the will is to be recorded, in such case, in the probate office,^ while in others it is recorded in the registry of deeds. ^ § 565. Foreig^n AVills. — We have already seen that wills, executed and proved in any other State or Territory, are usually required to be probated in the county in which the land is situated, and are to be recorded mthe same manner as other wills. In some of the States, however, a w'ill so proved and certified, as required by act of Congress, may be recorded and becomes effective without further proof.* § 'j{j6. Where Wills are to be lleeorded in the Regis- try of Deeds. — In some of the States, a will conveying real estate is required to be recorded, not oidy in the ofiice of probate, but a copy thereof, together with the proof and certificate of ))robatc, duly authentieated by the proper certificate of the officer, must also be recorded in the office J Alabama, Code, 1876, § 2312; ^Vrkansas, Dig. Stat., 1874, §§ 5782, 5708; Delaware, Laws, 1874, p. 539, § 1; Florida, Bush's Dig., p. 53, § 15; Georgia, Code, 1873, § 2432; Illinois, Rev, Stat., 1880, p. 1111, § 18; Indiana, Stat., 1876, vol. 2, § 32; Kansas, Conip. Laws, 1879, p. 1002, § 16; Michigan, Laws, 1871, p. 1378, § 38; Mississippi, Code, 1880, § 1975; Missouri, Rev. Stat., 1879, § 3990; Ohio, Rev. Stat., ISSO, <' .5931. The foregoing statutes are cited as illustrative of the text, rather than as comprising all the States in which this is the law. * Kansas, Comp. Laws, 1879, p. 1002, § 18; Ohio, Rev. Stat., 1880, § 5932; Texas, Rev. Stat., 1879, art. 4876. •Minnesota, Stat, at Large, 1873, p. 650, § 35; Missouri, Rev. Stat., 1879, (j 3991 ; Vermont, Rev. Laws, 1880, § 2048; Wisconsin, Rev. Stat., 1878, § 229G. * Ante, § 558. ART. II. REGISTKATION OF WILLS. 581 of the recorder of deeds. ^ In Wisconsin, it seems to be contemplated that a will of real estate shall be recorded in the registry of deeds, and not elsewhere .^ iMinuesota, Stat, at Large, 1873, p. G50, § 35; Missouri, Rev. Stat., 1879, § 3991; Vermont, Rev. St. Laws, 1880, § 2048. 2 Rev. Stat., 1878, § 2296. 582 CONVEYANCING. CH. XVI. CHAPTER XVI.— Of the Construction of Wills. Aktici.k I. General Kule.s of Construction. II. Construction as to Devisees. III. As to the Property and Estate Devised. IV. Of a Power to Sell Land. ARTICLE J GENERAL RULES OF COXSTRUCTIOX. SECTION. .569. Extent of the present chapter. • .570. The intention of the testator the object of all construction. 571. .Tarman's rules for the construction of wills. § 5G9. Extent of the Present Chapter. — Says Chancel- lor Kent: " Thotif^h we are not to disregard the authority of decisions, even as to the interpretation of wills, yet it is certain that the construction of them is so much governed by the language, arrangement and circumstances of each particular instrument, which is usually very unskillfully and very incoherently drawn, that adjudged cases become of less authority, and are of more hazardous application, than de- cisions upon any other branch of the law."^ Such being the case, we shall not attempt more in this chapter than to state a few leading principles, which have been established J 4 Kent's Com. 534. ART. I. GENERAL RULES OF CONSTRUCTION. 583 and applied to the construction of wills, without referring to any considerable number of adjudicated cases. On these subjects the reader is recommended to consult works which treat more especially of wills. § 570. The Intention of the Testator the Ohject of all Construction. — The primary rule in the construction of a will, whether of real or personal property, is, that the inten- tion of the testator, if not inconsistent with the rules of law, must govern.^ It is for the purpose of ascertaining what the intention of the testator was, that rules of con- struction are to be resorted to. These propositions are sup- ported by all of the adjudged cases and text writers upon the subject, and are too familiar to require any considerable number of citations of authority .^ But this rule, like all general rules, is subject to some qualitications.^ In a case in the New York Court of Appeals, Strong, J., states the rules applicable to the construction of wills as follows: " The intentions of the testator shall prevail, if they are consistent with each other and conformable to the principles of law. " The language used shall receive its ordinary interpre- tation, except where some other is necessarily or clearly indicated. "Where words are equivocal, that explanation shall be given which will preserve consistency, in preference to one which would create inconsistency. " If possible, some effect shall be given to each distinct provision rather than that it should be annihilated. 1 The construction of words in a will is much less technical than that of the same words in a deed. In a deed, the words govern the intention ; in a will, the intention governs the words. Edwards v. Bibb, 43 Ala. 666; Butler v. Huestis, 08 111. r)04. - 1 Redfield on Wills, 4th ed., 433; 4 Kent's Com. 534 ; Bradhurst v. Bradhurst, 1 Paige, 331 ; Covenhoven v. Shuler, 2 Paige, 122; Rath- bone v. Dyckman, 3 Paige, 9; Crosby v. Wendell, 6 Paige, 549; Brooks V. Evetts, 33 Tex. 732 ; Reed v. Hargroves, 40 Ga. 18. The plain intent of the testator should govern, without regard to the technical rules. Meade v. Jennings, 46 Mo. 91. 3 1 Redfield on Wills, 433. And see Bell v. Humphrey, S W. Va. 1. 584 CONVEYANCING CH. XVI. " AVIicre at lii-st a special, and subsequently a general Iciin is used, plainly having reference to the same matter, thi' latter should be limited to the former; and, " Where, after the application of liberal principles of in- terpretation, there is yet a palpable contradiction between two directions as to the same matter, the latter should prevail."^ § f) 7 1 . The General Rules for the Construction of Wills, propounded by Mr. Jarman,^ have acquired the weight of authority both in England and America, and we can, per- haps, render no greater service to the reader in this con- nection than to repeat them. 1. " That a will of real estate, wheresoever made, and in \>'hatever language written, is construed according to the law of the State in which the property is situated.^ 2. " That technical words are not necessary to give effect to any species of disposition in a will. 3. " That the construction of a will is the same at law and in equity, the jurisdiction of each being governed by the nature of the subject ;* though the consequences may differ, as in the instance of a contingent remainder, which is destructible in the one case, and not in the other. 4. '* That a will speaks, for some purpose, from the period of execution, and for others from the death of the testator ; but never operates until the latter period. 5. " That the heir is not to be disinherited without an ex- press devise or necessary implication ; such implication im- porting, not natural necessity, but so strong a probability, that an intention to the contrary cannot be supposed.^ 1 Crystie v, Phyf e, 19 N. Y. 348. 2 3 .Tiinnari on Wills, .")th Anier. ed., p. 703, et seq. ■'' Jenuings v. Jennings, 21 Ohio St. 56. * A court of chancery will never vest an estate when, by reason of a condition precedent, it will not vest iu law. Nevins v. Gourley, 95 111. 20f!. •'llowiinj V. Aiii.T. Sue, 49 Me. 288; Irwin v. Zane, 15 W. Va. 646; Hitchcock v. Hitchcock, 35 Pa. St. 393; Gelston v. Shields, 78 N. Y. 275; Graydou v. Graydon, 25 N. J. Eq. 561 ; Kupp v. Eberly, 79 Pa. St. in. AUT. 1. GENERAL RULES OF CONSTRUCTION. 585 G. " That merely negative words are not sufficient to ex- clude the title of the heir or next kin. There must be an actual gift to some other definite objec^.l 7. " That all the parts of a will are to be construed in re- lation to each other, and so as, if possible, to form one con- sistent whole. - 8. " That extrinsic evidence is not admissible to alter, detract from, or add to, the terms of a will,"' though it may be used to rebut a resuitino- trust attachinff to a leofal title created by it, or to remove a latent ambiguity,* arising from words equally descriptive of two or more subjects or objects of gift. 9. " Nor to vary the meaning of words ^ and, therefore, in order to attach a strained and extraordinary sense to a particular word, an instrument executed by the testator, in which the same word occurs in that sense, is not admissi- ble ;5 but 10. "The court will look at the circumstances under which the devisor makes his will — as the state of his prop- erty, of his family, and the like.^ 1 Matter of Rover, 7 Phil. 524. 2 Jackson v. Hoover, 26 Ind. T)!! ; Nimmous v. Westfall, 33 Ohio St. 213; Lane v. Vick, 3 How. 464; Banks v. Jones, 60 Ala. 605; Mutter's Est., 38 Pa. St. 314; Shriener's Appeal, 53 Id. 106; Moran v. Dillehay, 8 Bush, 434; Welsch v. Belleville Savings Bank, 94 111. 191. 3 Stanard v. Barnum, 51 Md. 440; Gilliam v. Chancellor, 43 Miss. 437; Caldwell v. Caldwell, 7 Bush, 515; Hill v. Felton, 47 Ga. 455. •»Tnxbury v. French, 41 Mich. 7; Black v. Hill, 32 Ohio St. 313; Dun- ham v. Averill, 45 Conn. 61 ; Woodruff V. Migeon, 46 /J. 236; Gillespie T. Schunian, 62 Ga. 252. Extrinsic parol evidence is admissible to show that the omission of a child by the testator was intentional. Peters v. Siders, 126 Mass. 135. ^ If the wording of a will is ambiguous, it is the duty of the court to put that construction upon the words which seems best to carry the in- tention into effect. But if there is no ambiguity, however unfortunate it may be that the intention of the testator should fail, there is no right in any court to say that those words should not have their plain and un- ambiguous meaning. Van Nostrand v. Moore, 52 N. Y. 12. « Travis v. Morrison, 28 Ala. 494; Rewalt v. Ulrich. 23 Pa. St. 388; Smith V. Bell, 6 Pet. 68; Bond's Appeal, 31 Conn. 183; Liuws v. Darden, 5 Fla. 51; Goodhue v. Clark, 37 N. H. 525; Gilliam v. Chancellor, 43 Miss. 437. But where the intention is clear, his situation or that of his 586 CONVEYANCING. CH. XVI. 11. "That, in general, implication is admissible only in the absence of, and not to control, an express disposition. ^ 12. " That an express and positive devise cannot be con- trolled by the reason assigned, or by subsequent ambiguous words, or by an inference and argument from other parts of the will;^ and, accordingly, such a devise is not affected by a subsequent inaccurate recital of, or reference to, its- contents ;'^ though recourse may be had to such reference to assist the construction, in case of ambiguity or doubt. 13. " That the inconvenience or absurdity of a devise is no ground for varying the construction, where the terms of it are unambiguous ; nor is the fact that the testator did not foresee all the consequences of his disposition, a reason for varying it; but where the intention is obscured by conflict- ing expressions, it is to be sought rather in a rational and consistent, than an irrational and inconsistent purpose. 14. " That the rules of construction cannot be strained to bring a devise within the rules of law; but it seems that, where the will admits of two constructions, that is to be preferred which will render it valid; and, therefore, the court in one instance adhered to the literal language of the testator, though it was highly probable that he had written a word by mistake for one which would have rendered the device void. 15. " That favor or disfavor to the object ought not to influence the construction. 1»5. " That words in general are to be taken in their ordi- nary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascertained;"* and they are, in all cases, to receive a con- family or property will not be considered. Brearley v. Brearley, 9 N. .J. K(i. -21 ; Williani^iou v. Williamson, 4 .Tones (N. C.) Eq. 281. > Elder v. Laut/, 40 :\rd. 186; Wetter v. Walker, 62 Ga. 142. 2 Ward V. Amory, 1 Curt. 41!). And see Orrick v. Boehm, 49 Md. 72. 3 Where there is in the first place an unambiguous and certain descrip- tion of the thing, and afterwards another description which fails in cer- tainty, the latter must be rejected. Jones v. Robinson, 78 N. C. 396. * Vannerson v. Culbertson, 10 Serg. & R. 150; Roosevelt v. Thurman, ART. I. GENERAL RULES OF CONSTRUCTION. 587 struction which will give to every expression some effect, rather than one that will render any of the expressions in- operative; and of two modes of construction, that is to be preferred which will prevent a total intestacy.^ 17. "That, where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary .^ 18. "That words, occurring more than once in a will, shall be presumed to be used always in the same sense, un- less a contrary intention appear by the context, or unless the words be applied to a different subject. And, on the same principle, where a testator uses an additional word or phrase, he must be presumed to have an additional mean- ing.* 19. "That words and limitations may be transposed,'^ supplied,*^ or rejected where warranted by the immediate context or the general scheme of the will ; but not merely on a conjectural hypothesis of the testator's intention, how- ever reasonable, in opposition to the plain and obvious sense of the language of the instrument.'^ 20. " That words, which it is obvious are miswritten (as 1 Johns. Ch., 220; Ketaltas v. Ketaltas, 72 J^T. Y.312; Prudenv.Paxtoa TON. C. 446; Kelly v. Reynolds, 39 Mich. 464; Carter v. Reddish, 32 Ohio St. 1; Castner's Appeal, SSPa. St. 478. 1 Elder v. Lantz, 49 Md. 199; Jones v. Williams, 41 Mich. 552; Banks V. Jones, 60 Ala. 605. 2Hawley V. jSTorthampton, 8 Mass. 3; Myers v. Eddy, 47 Barb. 263; Clark V. Mosely, 1 Rieh. (S. C.) Eq. 396; Clark v. Smith, 49 Md. 106; France's Estate, 75 Pa. St. 220. 3 Tucker V. Ball, 1 Barb. 94; Eliot v. Carter, 12 Pick. 436. * Carpenter v. Boulden, 48 Md. 122; Thompson's Appeal, 89 Pa. St. 36; Wright's Appeal, Id. 67; Moore v. Hegeman, 72 N. Y. 376. 5 A transposition of the language of a will can be made only when necessary to give effect to some purpose of the testator, which clearly appears. Latham v. Latham, 30 Iowa, 294. 6 Simpson V. Smith, 1 Sneed (Tenn.), 394. See Kellogg v. Mix, 37 Conn. 243; Buttertield v. Hamant, 105 Mass. 338. " Grimes v. Harmon, 35 Ind. 198. There is no power to change the words in a will, unless such change is necessary to effect the intent of the testator, apparent either on the face of the will or from surrounding circumstances. Ely v. Ely, 20 N. J. Eq. 43. 588 CONVEYANCING. CH. XVI. dying with issue, for dying without issue) may be cor- rected.^ 21. " That the construction is not to be varied by events subsequent to the execution,^ but the courts, in determining the meaning of particuhir expressions, will look to possible circumstances in which they m?'^/iHiave been called upon to atiix a sijiniticancc to them. 22. "That several independent devises, not grammatically connected or united by the expression of a common pur- pose, must be construed separately and without relation to each other; although it may be conjectured, from similarity of relationship or other such circumstances, that the testator had the same intention in regard to both. There must be an a})parent design to connect them. 23. " That where a testator's intention cannot operate to its full extent, it shall take effect as far as possible.^ 24. " That a testator is rather to be presumed to calcu- late on the dispositions in his will taking effect, than the contrary ; * and accordingly a provision for the death of devisees will not be considered as intended to provide ex- clusively for lapse, if it admits of any other construction." ARTICLE II. CONSTRUCTIOX AS TO DEVISEES. SECTION. 57-1. Misuomer uiid uiisdcscriptiou. 575. Who are entitled under the description. 576. Taking j)er stirpes or per capita. 577. Lapsed devises. 1 Emmert v. Hays, 89 111. 11; State v. Joyce, -18 lud. 310. 2 Miller v. Adkinson, 32 Ind. 433. •■' Oxley v. Lane, 35 N. Y. 340. < Burnet v. Burnet, 30 N. J. Eq. 595. ART. II. CONSTKUCTION AS TO DEVISEES. 589 § 574. 3Iisnomer and Misdescription. — The general rule is, that devisees and legatees must answer the description and character given to them in the will.^ But the rule is subject to important qualifications and exceptions. One of almost equal generality with the rule is, that a misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself, or evidence dehors the will, the object of the testa- tor's bounty can be ascertained.- When the name used in a will does not designate with precision any person, and when the circumstances concur to indicate that a particular person was intended, and no similar conclusive circumstances appear to distinguish any other person, the person thus shown to be intended will take.^. And if the language of the will be so ambiguous and obscure as to leave a doubt as to the identity of the person for whom the benefit was in- tended, recourse may be had to parol evidence and the sit- uation of the testator's family, and other circumstances may be shown, to enable the court to ascertain the legatees or devisees intended.* The extent to which parol evidence is admissible in explanation of the intention of a testator is a question upon which the authorities are numerous and some- what conflicting. The general rule of evidence is, that latent ambiguities may be explamed by parol ; but such evi- dence is inadmissible to vary or contradict the terms of a written instrument. The tendency has been to greater lib- 1 2 Williams onExrs., 6th Am. ed.,1170;l Powell on Dev., 309; Hodg- son V. Ambrose, 1 Doug. 344; Stith v. Barnes, 1 Law. Rep. (N. C.) 484; Judy V. Williams, 2 Ind. 449. - A corporation may be known by several names as well as an indi- vidual. Lefevre v. Lefevre, 59 X. Y. 434, 440. And see ]\Iinot v. Curtis, 7 Mass. 441 ; Dunham v. Averill, 45 Conn. 61 ; Christy v. Badger (Iowa), 34 N. W. Rep. 4-27. ^ Howard v. American, etc. Society, 49 Me. 288. •* Garner v. Heyer, 2 Paige, 11 ; Beachcroft v. Beachcroft, 1 Md. 430. A nickname, or a name by reputation given by the testator and current in his family and neighborhood, is sufficient to designate the devisee. Ryers v. Wheeler, 22 Wend. 150. 5110 CONVEYANCING. CH. XVI. eralitv in the construction of wills than is permissible in case of any other instrument; but this cannot be extended so far as to add a new provision to a will. For example, if the name is omitted and the will is blank, the omission can- not be supplied by the court upon any evidence of the inten- tion of the testator.^ Or, if the name is inserted and is wholly mistaken, it cannot be corrected by strikinf]^ out the name of one person and inserting that of another, although the surrounding circumstances render the ideutit}^ of the person intended reasonabl}' clear. ^ § 575. Who are Entitled under the Description. — A devise to "children" without other description, as a general rule, means the immediate legitimate descendants of the person named. And where there is nothing to show that the testator intended to use it in a different sense, it will not be held to include illegitimate offspring, step-children, children by marriage oul}', grandchildren, or more remote descendants.^ If the testator, or person named, has chil- dren that come within the primary sense of the term, parol evidence cannot be received to show that a different class of persons is intended; but he having illegitimate children only, proof of circumstances dehors the will is admissible to show that they were the childen intended.* So it has been held that the word children may include grandchildren when there were no children in existence at the time of the makins of the will ; or where there could not be anv chil- dren at the time of the event contemplated by the testator; 1 Hunt V. Ilort, 3 Bro. Ch. 312; Andress v. Weller, 3 N. J. Eq. 604; Creely v. Ostrander, 3 Bradf. (N. Y.) 107. 2 Yates V. Cole, 1 Jones (N. C.) Eq., 110; 1 Redfield on Wills, 612. •'' Cromer v. Pinckney, 3 Barb. Ch. 475; Hopson v. Commonwealth, 7 Bush, 044; Feit v. Vanatta, 21 N. J. Eq. 84; Thompson v. Ludiugtou, 104 Mass. 193. As to meaning of the term " children," see Wharton v. Silliman, 22 La. Ann. 343. The word "children" in a will should not be construed as synonymous with •' heirs" when it would contlict with testator's intention. Akers v. Akcrs, 23 X. J. Eq. 20. An immediate gift to " children," without additional description, means a gift to the children in existence at the death of the testator. Shotts v. Poe, 47 Md. 413. < Gardner V. Ileyei, 2 Paige, 11. ART. II. COXSTKUCTION AS TO DEVISEES. 591 or where the testator has clearly shown by the use of other W'Ords that he used the term children as synonymous with issue or descendants.^ The same rules apply to the con- struction of the words nephews and nieces, cousins and the like. They are to be taken in their primary and ordinary sense, unless a contrary intention appears from the context of the will. 2 The words " heirs," " issue," and like expressions may be used either as words of limitation or words of purchase. By words of limitation must be understood, that the inter- est limited is originally given to the ancestor, so as to create in him an estate or interest of inheritance, descend- ible to his heirs of the given description. By words of purchase is meant such words as give the estate limited to the heirs or issue, in their own right, and as the persons answering the description. We have seen that, under the rule in Shelley's Case, when the ancestor takes an estate of freehold by any gift or con- veyance, and in the same gift or conveyance there is a lim- itation mediate or immediate to his '* heirs," or " heirs of his body," the word heirs is to be construed as a word of limitation, and not of purchase.^ But wherever it is certain that the word *' heirs " is used as descriptive of the de- visees, and with the intention that such persons shall take as purchasers, it will receive that construction.* When so used, and there is no context to explain it otherwise, the word "heir" is to be taken in its natural and ordinary 1 Mowatt V. Carow, 7 Paige, 328; Morrill v. Phillips, 142 Mass. 240; iJePaton, -tl Hua (N. Y.), 497; Henderson v. Henderson, 64 Md. 185. 2 Cromer v. Pinckney, 3 Barb. Ch. 475; Green's Appeal, 42 Pa. St. 25. 3 Ante^ § 115. It is to be remembered that in some of the States this rule has been abolished. * Doe V. Jackman, 5 Ind. 283; Morton v. Barrett, 22 Me. 257. In a testamentary paper, the word " heirs '" may he construed "children,'' where such is the evident intention of the testator. Shepherd v. Nabors, 6 Ala. 631; Eby v. Eby, 5 Pa. St. 461; King v. Beck, 15 Ohio, .559; Thomas v. White, 3 Litt. (Ky.) 177. See Bailey v. Patterson, 3 Rich. (S. C.) Eq. 156; Williamson v. Williamson, 18 B. Mon. 329; Love v. Buchanan, 40 Miss. 758; Bowers v. Porter, 4 Pick. 198; Ellis v. Essex Merrimack Bridge, 2 Pick. 243 ; Bryant v. Derberry, 2 Uayw. (N. C.) 356; McCartney v. Osburn, 118 111. 403. 5i>2 CONVEYANCING. CH. XVI. meanino", and will incliule those persons who are entitled under the statute of distribution.^ The words " next of kin," "relatives," "family," etc., are construed in the same way,- and may be enlarged or controlled by the context.'' § o7G. Taking per Stirpes or per Capita. — Where a devise is made to " heirs," " next of kin," or by any term which is construed to mean the persons entitled under the statute of distributions, according to the English rule, which has been adopted in several of the American States, the persons thus designated take pei- capita and not per fitirpes.^ The rule, more clearly stated, is, that persons de- scribed as a class take in the same way as if each individual comprised in the class were called by his proper name. " But," says Mr. Jarman, " this mode of construction will yield to a very faint glimpse of a different intention in the context.-^ And therefore, if the declared general purpose of tlu' will would be defeated by applying this rule, the other rule of dividing per stripes will be adopted.'^ In some of the States the latter rule has been recognized, and it has been held that when a testator gives to his next of kin in classes, leaving the proportions doubtful, the classes take per stripes, and not per capita.'' ' Mounsey v. Blamire, -t Russell, 3S4. - Where a bequest is to " relatives," the next of kin, according to the statute of distributions, are entitled to it, there being; nothing in the will to the contrary. Drew v. Waketitild, 54 Me. 201; Varrell v. Wen- dell, 20 N.H. 431. ■'' Where the testator described and specified certain of his " nearest " relatives, the description was applied independently of the statute. Ennis V. I'entz, 3 Bradf. (N. Y.) 382. * Ward V. Stow, 2 Dev. (N. C.) Eq. 509; 'Weston v. Foster, 7 Met. •1U7: Burnet v. Burnet, 30 N. J. Eq. 595; Hill v. Bovvers, 120 Mass. 135; ('ollin>^ V. lloxie, 9 Taige, 81; Myers v. Myers, 23 IIow. Pr. 410; Sea- bury V. Brewer, 53 Barb. 062. •■' 2 .Jarinau on Wills, 1st Ara. ed., 111. •■• Bivens v. I'hifer, 2 Jones (N. C.) L. 436; Roper v. Roper, 5 Jones (N. C.) Eq., 16; Uowell v. Tyler, 91 N. C. 207; Stoutenburgh v. Moore, 17 Oent. L. J. 312, with note. ' Fissel's Appeal, 27 Pa. St. 55; Winter's Appeal, 40 Pa. St. Ill ; Har- ris" Estate, 74 Pa. St. 452; Reymond v. inilhouse,45 Conn. 467; Talcott ART. III. ESTATE AND PUOPEKTY DEVISKD. 593 § 577. Lapsed Devises. — At common law, when the per- son to whom the testator o;ives hind dies before the testator, the devise would lapse; but in most of the States, if a devise is made to a son or grandson of the testator, it takes effect, by force of the statute, in favor of the heirs of the devisee, if he die before the testator.^ And where a devise fails by lapsing, it does not go to the residuary devisee, but to the heir at law of the testator. Though, where the de- vise is void ab initio, as where the devisee is by law in- capable of taking the devise, some of the cases hold that it falls within the residuum and passes to the residuary devisee. The cases are somewhat numerous under this head and more or less conflicting; consequently no attempt, has been made at collecting them. It is stated by Mr. Washburn that the weight of American authority is in favor of such devises ijoing to the testator's heirs. ^ ARTICLE III. AS TO THE ESTATE AND PROPERTY DEVISED. SECTION. 580. What general words carry real estate. 581. The estate or interest which passes. 582. Description of the property devised. § 580. What General Words carry Real Estate. — The usual and proper words necessaiy to create a devise are "give and devise." But any other words, which sufficiently V. Talcott, 39 Conn. 186; Kelly v. Vigas, 112 111. 242; s. c, 54 Amer. Rep. 235. 1 Moore v. Dimond, 5 R. I. 121; Sheets v. Grubbs, 4 Mete. (Ky.) 340; Billingsly v. Harris, 17 Ala. 214; Hamlet v. Johnson, 26 Ala. 557; Colt V. Colt, 33 Conn. 270. 2 3 Washb. Real Prop., 4th ed., 524. (38) 594 CONVEYANCING. CH. XVI. show the intention of the testator to dispose of his lands or any part thereof, will be sufficient for that purpose. The question whether real estate passes under a devise can only arise where the testator has used words not properly and technically descriptive of such property, or where, though using terms properly applicable thereto, he has created doubts by their position or improper use in other parts of the will. When used in connection with words descriptive of personal property, general expressions may be limited by the particular description. The word "estate" is suffi- ciently comprehensive to embrace every description of prop- erty : but it may apply to either real or personal estate according to the manner of its use in the will, or in the different clauses thereof, or it may be descriptive of the quantum of interest devised. ^ But a devise of the testa- tor's "estate" generally, passes both real and personal estate.- So the word "property" is broad enough to in- clude everything which may be the subject of ownership when used in a general sense,^ or may be restrained by the context to any particular class of property.* § 581 . The Estate or Interest which Passes. — Formerly, in wills of real estate, if the devise contained no words of limitation or of perpetuity, the devisee took only a life estate. l>at this rule has been changed by statute in most of the States, so that the word "heirs" is no longer necessary to convey a fee in land.^ And in order to carry out the inten- tion of the testator, courts will seize upon any general expression of a grant as affording evidence that a fee was intended. Thus the words "estate," "property," "land," ' Stunip V. Deiieale, 2 Crauch C. C. 640; Den v. Siiitcher, 14 N. J. L. 53; Den v. Drew, Id. 68; McAlister v. Giltnore, 1 Ired. (N. C.) Eq. 22. 2 Blewer V. Brightman, 4 McCord (S. C), 60; Tarbell v. Tarbell, 2 Yules (Pa.), 187; .Tackson v. Delancey, 11 Johns. (X. Y.) 365; Andrews V. nrumfield, 32 Miss. 107. 3 Pell V. Ball, Spears (S. C.) Ch.48; Morris v. Henderson, 37 Miss. 492; Ropsetter v. Simmous, 6 Serg. & R. (Pa.) 4.52. * Wheeler v. Duulap, 13 B. Mon. (Ky.) 291; Pippin v. Ellison, 12 Ired. t;l. See 2 Jannau on Wills, 5th Am. ed., 315. ^ Ante, §§85,114, 115. ART. III. ESTATE AND PROPERTY DEVISED. 595 "all my landed property," "all the estate called," etc., "all my estate, real, personal and mixed," and words of similar import, have been held to pass real estate in fee- simple to the devisee.^ Notwithstanding such words are usually construed to carry a fee, independent of words of limitation, a careful convey- ancer will use the words which necessarily carry the fee- simple and which leave no room for construction ; or, if a less estate is intended to be devised, will so express it as to leave no room for argument or dispute. "I give and de- vise to A. B., his heirs and assigns forever," are the appro- priate words for a devise in fee-simple, and can easily be qualified or limited to any particular estates. § 582. Description of the Property Devised. — To the validity of every devise it is requisite that there be a definite object and definite subject-matter. The rules of construc- tion for the identification of either are the same. A will is not to be held void for uncertaint3s whenever, from the language of the will and the attendant circumstances, it can be determined what the intention of the testator was.- But where the will is so obscure that the court cannot discern the intention of the testator, the devise must fail.^ The word "house" in a will is synonymous with "mes- suage," and conveys all that comes within the curtilage.* So, under a devise of a "barn," land enough passes to complete its enjoyment, and no more.^ Under the term "appurtenances" land will pass, if necessary to effect the intention of the testator." So the term "homestead" will 1 Williams on Exrs., 975, n; Robinson v. Randolph, 21 Fla. 629. 2 It is only required that the court may be enabled, by fair and reason- able intendment, to ascertain the meaning. Swift v. Lee, 0.5 111. 336. 3 1 Jarman on Wills, 5th Am. ed., 643. "It must be an extreme case before we can relieve ourselves of the duty of giving a construction to the instrument by declaring it void for uncertainty." Hornblower, C. J., in Den v. McMurtrie, 15 N. J. L. 276. " Rogers v. Smith, 4 Pa. St. 93. 5 Bennet v. Bittle, 4 Rawle (Pa.), 339. « Otis v. Smith, 9 Pick. 293; Leonard v. White, 7 Mass. 6: Elliott v. Carter, 12 Pick. 437. 59(5 CONVEYANCING. CIl. XVI. pass the farm upon which the testator resided/ and a devise of a lot with the ))ersonal property thereon passes live stock.^ '•The residue of" a testator's estate and effects, means what is left after all liabilities are discharged and all the purposes of the testator arc carried into effect.^ And the term "all the residue" of the testator's property, passes real as well as personal propert}^ ; the real estate in fee, though n*() words of limitation or inheritance are added.* ARTICLE IV, OF A POWEK TO SELL LAXDS. SECTION. 585. By what words a power is created. 58G. Execution of power in a will. § 585. By what Words a Power is Created. — To confer a power to sell lands under a will, plain and express words to that effect are necessary, or the power must be implied by the imposition of duties on the executor which cannot be performed except by sale,"'* AVords in a will, such as "with discretionary power to settle my estate as they shall judge best for the interest of my heirs at law," or " my just debts first to be paid," do not raise an implied power in an execu- tor to sell land.'"' And when a testator made a bequest to ' Hopkins V. Grimes, 14 Iowa, 73; Ford v. Ford, 70 Wis. 19; s. c, Amer. St. Rep. 117, with note. * Martin v. Osborne, 85 Tenn. 420. 3 Graves v. Howard, 3 Jones (X. C.) Eq. 302. ■•Parker v. Parker, 5 Mete. (Mass.) 134; Adams v. Adams, 2 Jones (N. C.) Eq. 215; Smith v. Smith, 17 Gratt. (Va.) 268; Atkins v. Kroo, 2 Tred. Eq. 58; Seckrifjht v. Carringtou, 1 Wash. (Va.) 45; Warner v. '>Villard, 54 Conn. 470. •Skinner v. Wood,7G N. C. 109. •5 Owen V. VAMs, 04 Mo. 77. ART. IV. POWER TO SELL LANDS. 597 his wife of all hiii estate, real and personal, " to have and to hold (hiring her life, and to do with as she sees proper before her death," it was held that she took a life estate with only such power as a life tenant can have, and that her conveyance of the real property passed no greater inter- est.^ In the case last cited the rule is laid down as sus- tained by the authorities, that where a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power was intended. Thus, a gift by a testator to his parents of " the use and improvement of [all my estate it- self as may be necessary for their comfortable support as long as either of them shall live" was held to be a gift of a life estate, and a power to dispose of so much of the fee as may be necessary for the purpose indicated.^ Where the absolute property is devised, a limitation over is void, because inconsistent with the gift, and the devisee has the right to sell.^ But where a life estate is clearly intended, the devisee cannot take a fee under the will, though it remains undisposed of, but the estate will follow the law of descents.'^ If a testator directs his real estate to be sold for certain purposes without stating by whom the sale shall be made, and the proceeds are distributed by the executor in the pay- ment of debts or legacies, etc., he has the power to make the sale by implication.^ Of course, when the will ex- pressly directs the executor to sell, he may do so; and generally, by the aid of statutes, an administrator with the will annexed has the same power to sell lands as the execu- tor for whom he is substituted, and in either case the sale may be made under the power conferred by the will, and 1 Brant v. Virginia Coal and Iron Co., 93 U. S. 326. 2 Symms v. Moulton, 120 Mass. 343. 3 McKiuzie's Appeal, 41 Conn. 607: Kelloy v. Kelley, 61 X. Y. 47. " Woodruff V. Cook, 61 N. Y. G38. s Mandlebauin v. McDonell, 29 Mich. 78; Blount v. Moore, 54 Ala. 3d0; Whitehead v. Wilson. 20 X. .1. Eq. 396. 598 CONVEYANCING. CH. XVI. IK) order of court will be uecessaiy in the premises. But when the object for which a power to sell has been created, has been accomplished or has become impossible or unat- tainable, the power itself ceases to exist. ^ § 58G. Execution of Power in a Will. — The subject of the execution of powers has been noticed in a former part of this work.- A few observations only will be added. In general, a will giving power of sale vests the title in the executor at the time of the testator's death, and his deed of the )n"operty, made before probate of the will, is a good ■conveyance provided the will be subsequently probated.^ The authority of an executor is derived from the will, not from the letters testamentary; the latter are but the authentic evidence of the power conferred by the will.* But under a statute requiring- the executor to give bond before intermeddling with the estate, his power, it seems, is sus- pended until he has duly qualified.^ And where by the terms of a will the testator appointed an executor, and his wife as executrix, and gave them power to sell, at private or public sale, all his property as they might deem best for the interest of his estate, it w-as held that the will conferred an official, and not a personal trust, and that after ceasing to l)e executrix, the wife had no power to alienate the property.*^ \Ve have seen that where a conveyance is ob- viously made in execution of a power, a very slight refer- ence, or even no reference, except by inference, to the power, will pass the estate to the full extent of the power. ^ ' Harmon v. Smith, 28 Cent. L. J., 476; Fidler v. Lash, 17 Atl. Kep. 240; Wilkinson v. Buist, IG Atl. Rep. 856. 2ylHte, §§ 152-157. 3 Wilson V. Wilson, .54 Mo. 213. * Ilartnett v. Wendell, 60 N. Y. 346. •'•Lamb v. Helm. .56 Mo. 421 ; Stagg v. Green, 47 Mo. 500. "Littleton v. Addington, 59 Mo. 275. A power to executors to sell land cannot be exercised by one executor alone after the resignation of the others. Tarver v. Haines, 55 Ala. 503. ' Antf, § 155. INDEX. [The references are to pages,] ABANDONMENT, of homestead, effect of, 172. ABEYANCE, of freehold, not allowed by law, 104. ACCEPTANCE, of deed, essential to its validity, 190. when presumed, 199. See Delivery. of rent, when a waiver of forfeiture, 296. ACKNOWLEDGMENT, of deed, purpose and requisites of, 222-241. when necessary, 223. essential to due execution of deed by married woman, 224. effect of, upon deed as evidence, 224. authorizes and gives effect to record, 225. how made by an attorney, or by a corporation, 226. may be made before, or after delivery of the deed, 227. will relate back, and make good an ineffectual conveyance, when, 227. must be in accordance with law of State where land is situated, 2>.<, 227. with law in force at date of, 223, 227. qualification of officer taking, 228. how far a ministerial, and how far a judicial act, 22S. may be taken by deputy, 229. as to date of certificate of, 230. how far essential that the place of taking same shall appear from certificate 230. the official character of the officer should appear from certificate, 231. the name of grantor should be stated or referi-ed to, 231. to what facts the officer must certify, 231, 232. statutory requirements must be substantially complied with, 232. the fact of identity of party an essential part of the certificate, 234. as to the private examination of married women, 235, 236. seal of officer taking, to be attached to the certificate, 236. certificate required to be on same paper as the deed, 237. certificate how far conclusive, 238. 600 INDEX. [The references are to pages.] ACKNOWLEDGMENT— Continued. mistake in certificate, how corrected, 239. effect of fraudulent alteration of certificate, 239. who may take advantage of defective. 239. constitutionality of statutes designed to cure defects in, 240. See Proof OF Deeds; Registratio.'J. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADVERSE POSSESSION, tenant estopped to set up, against landlord, 277. AFTER- ACQUIRED PROPERTY, whether subject to mortgage, 398. whether, passes by wil.1, 544. AGE, at which persons may make will in the different States, oHI. AGENT. See Principal and Agent. AGREEMENT, of parties, the first essential to a deed, 1. for purchase and sale of land, 2, 19. See Contract. for a deed, 19. See Deed. for a lease, 273, 274. See Lease. ALABAMA, deed in, not invalidated by insertion of grantee's name after delivery, 26. covenants implied by words "grant, bargain and sell," in, 156, 157. an instrument purporting to-be sealed requires no seal in, 163. separate acknowledgment of wife to deed of homestead required, 169. use of seals abolished, 178. number of witnesses required to deed in, 183. if acknowledged, no witnesses required, 183. competency of witnesses to deed in, 184. record of deed constructive notice from date of filing only, 246. the common-law doctrine of mortgages prevails, 372. a lien exists.in favor of vendors for purchase-money in, 393. method of releasing' mortgages in, 491. age at which persons may make will of real estate, 537. married women may dispose of their separate property by will same as if sole, 539. property acquired after execution of will may pass by it, if so intended, 544. number of witnesses required to will, 550. marriage and birth of child revokes will, 567. certified copy of will duly probated and recorded, admissible in evidence, 579. wills are required to be filed and recorded in office of probate, 580. ALIEN, right of, to hold land, 42. disability of, removed by statute in most States, 42. See Corporations. ALIENATION, light of, comparatively unrestricted in this country, 28. ALTERATION. of deed, must be made before delivery, 22. after delivery will render deed void, or will have no effect, 22. if fraudulent, will avoid executory contract, 22. If unimportant or made by stranger, is of no effect, 22. when material and made by party claiming under it, will avoid deed, 22. may be made by consent of parties, after execution of deed, 2i. INDEX. 601 [The references are to pages.] ALTERATION— Continued. when so made, has the effect of a re execution of the deed, 2'i. presumption as to, 23. burden of proving, 23. effect of, upon deed as a conveyance, 24, 25. See Cancellation of Deed. AMBIGUITY, latent, may be explained by parol, 8, 87. See Evidence. APPOINTMENT. See Powers. APPORTIONMENT. See LEASE ; MORTGAGE. APPURTENANT. everything that is, passes by grant of the principal, 89, 90. ARIZONA, separate acknowledgment of wife to deed of homestead required in, 169. method of relinquishing mortgages in, 491. age at which persons may make will of real estate, 537. married women may dispose of separate property by will same as if sole, 539. ARKANSAS, covenants implied by words "grant, bargain and sell" in, 156, 157. a scroll may be used as a seal In, 179. record of deed constructive notice from date of filing only, 246. the common -law doctrine of mortgages prevails, 372. ground of equitable jurisdiction to declare an absolute deed a mortgage, 380. a lien exists in favor of vendors for purchase-money in, 393. method of releasing mortgages in, 491. age at which persons may make will of real estate, 537. married women may devise and bequeath the same as if sole, 539. devises to witnesses to will in, when void, 541. number of witnesses required to will, 550. holographic wills, how proved, 557. marriage of single woman avoids her will previously made, 566. marriage and birth of child revokes will, 567. certified copy of will duly probated and recorded, admissible in evidence, 579. wills are required to be filed and recorded in office of probate, 580. copy of foreign will duly proved in home jurisdiction, may be admitted to probate In, 574. ASSENT. See ACCEPTANCE ; Construction. ASSIGNEE, of lease, must be named to be affected by covenants, when, 303, 304. of reversion of lease, should give notice of the assignment to tenant, 335, .336. of mortgage, rights and liabilities of, 457, 463. right of, to execute power of sale in a mortgage, 431, 432, 514, 515. ASSIGNMENT, form of conveyance by, 60. applies more specifically to terms of years, 60. of lease, distinguished from under-lease, 281, 326. effect of, upon covenants generally, 300, 304. effect of, upon covenants to pay rent, 310, 3.S2, 333. upon covenant to renew, 302. to insure, 315. not to use premises for purposes of trade, 316. effect of, upon covenant against, 317, 318. who may make an, 327, 3,30. what will constitute an, 328. rent may be reserved from, by special stipulation, 329. of rent, without transfer of reversion, 329. may be either in fact or in law, 330. ()02 INDEX. [The references are to pages.] ASSIGN'MKNT— Continued. what constitutes an, in iaw, 3:i0. form unci requisites of an, in fact, 331. l)roper covenants to be inserted in, 'iii2. effect of, upon liabllltj' of assignor, 3S2, 333. rlglits and liabilities of assignees, .S33, 334 of an assignee of the reversion, 336. payment by tenant before notice of, 336. 0/ mortgage, how affected by different views of the nature of a mortgage, 448, 44!'. under couimon-law doctrine of mortgages, 449, 464. what conveyances will operate as an, 461, 452. under equitable view of the nature of a mortgage, 454, 457. who may exercise power of sale under, .514, .">15. See A.S8IGNEE. ASSIGNS, must be named in lease to be affected by covenants, when, 303, 304. must be named In mortgage in order to execute power of sale, 431, 514. •See Assignek; Assignment. ASSUMPSIT, the remedy against grantee for failure to perform duty prescribed in deed- poll, 68. ATTESTATION, of deed, not required at common law, 181. number of witnesses required in the different States, 182. qualification of attesting witnesss, 183. witnesses must sign at grantor's request, 184. of lease, witnesses required, 323. of mortgage, governed by same law as purchase deeds, .'574. of Kill, number of witnesses required in the different States, 650, 551. competency of the witnesses, 551, 552. persons beneficially Interested in will, incompetent to attest it, 551. witness must sign at request and in presence of testator, 552. what is a sulllclent request, 552. what Is, in presence of testator, 553. witness may sign by mark, or his hand may be guided, 554. whether he may adopt signature written by another, 551. or by himself at another time, 554. witnesses must subscribe their uames animo testandi, 555. should sign at the end of the will, 5.55. and write their address opposite their respective names, 555. clause of, not essential, but always desirable, 555. what is a sutUclent publication of a will, 556. holographic wills require no attesting witnesses In some States, 557. ATTORNEY, execution of deed by, 217, 2-21. form of aclf nowledgment of deed by, 226. ATTORNMENT, what Is an, 'Sa^i, note. forfeiture of lease by fraudulent, 349. AUCTIONEER, at sale of land, regarded as agent of both parties, 11. signature of, to executory contract of sale Is binding upon both parties, 11. See Statote ok Frauds. B. BANKRUPTCY. See Fraddulent Convkyancbs. INDEX. <303 [The references aro to pages.] BARGAIN AND SALE, deed of, definition, 62. may operate as a feoffment, Si. proper words of grant in, 63. consideration for, how far necessary, 62, 79. whether freehold can be limited to commence infuturo by, 62, note, may be good as covenant to stand seized, 80, note, livery of seizin not necessary to, 02, 63. required by statute of uses to be enrolled, 63. statute did not apply to chattel interests, 6H. See CoNsiDKitATioN; Covenants; Uses. BLANKS, in deed, what may be filled, when, by whom, and by what authority, 25, 26. See Alteration. BOND FOR DEED, an equitable mortgage, wlien, 390. BOUNDARY, establishment of, by adjoining proprietors, 93. by stream or highway means the center, 95. by large bodies of water, iM>. monuments control courses and distances in fixing, 92. See Dksceiption; Evidence. BREACH. See Condition; Covenant. c. CALENDAR MONTH, usually intended, in this country, where lease is made for a month or months, 338. CALIFORNIA, covenants implied by words "grant, bargain and sell," in, 156. homestead cannot be aliened except by joint deed of husband and wife in, 16S. record of deed constructive notice from date of filing only, 246. the equitable doctrine of mortgages prevails, 372. ground of equitable jurisdiction to declare an absolute deed a mortgage, 382. equitable mortgages by deposit of title deeds, 391. lien exists in favor of vendors for purchase -money, 393. method of releasing mortgages, 491. age at which persons may malie will of real estate in, 537. married women may dispose of separate property by will same as if sole, 539. devise to witness to the will how far void, 541. property acquired after execution of will may pass by it, if so intended, 544. number of witnesses required to will, 550. holographic wills how proved, 557. marriage of single woman avoids her will previously made, 566. marriage and birth of child revokes will, 567. will executed and proved in accordance with law of place of testator's dom- icil valid in, 574. copy of foreign will proved in home jurisdiction may be admitted to probate in, 574. wills are required to be filed and recorded in ofHce of probate, 530. CANCELLATION, of deed does not revest title in grantor, 24. a different rule prevails in what States, 25. of mortgage. See Discharge. 604 INDEX. [The references are to pages.] CAPACITY, of parties to deed, 28, 44. to power of attorney, 208, 212. to lease, 276, 284. to will, 536, 542. of officer to take acknowledgment, 229. of attesting witnesses. See Attestation. CESTUI QUE TRUST, In simple trust, entitled to rents and profits, 120. may dispose of land and call upon trustee to make conveyance, 120. See Trusts. lease of, without concui'rence of trustee, invalid, 283. CHAMPERTY. See Disseizee. CHARITABLE USES, grants to, how far an exception to .general rule requiring parties to be inesse, 44, note. CHATTELS REAL. See Lease. CHOSES IN ACTION, not assignable, 141. See Covenant. CODICIL, definition of, 535. must be executed with same formalities as a will, 535. a constructive republication of a will, 56'.). COLLATERAL POWER, definition of, 125. COLORADO, wife's deed of homestead must be signed as well as .acknowledged apart from her husband, 169. record of deed constructive notice from date of filing only, 246. the equitable doctrine of mortgages prevails, 372. lien exists in favor of vendors for purchase-money, 393. method of releasing mortgages, 4'Ji. age at which persons may make will of real estate in, 537. wife can will half of her real estate without husband's consent, but no more, 5.S9. same as to husband, 539. devise to witness to the will how far void, 541. number of witnesses required to will, 550. will required to be produced for probate, within ten days after death of testator, 572. will executed and proved in accordance with law of place of testator's domi- cil, valid in, 574. copy of foreign will proved in home jurisdiction may be admitted to probate In, 574. wills are required to be filed and recorded in office of probate, 580. COMMON LAW, conveyances deriving their effect from, 55. COMMON RECOVERIES. See FINE AN I> RECOVERY. CO.M.MON SEAL. See Corporation; Seal. CONDITION, in deeil, definition of, 108, 109. general and special defined, 109. distinction between precedent and subsequent, 109. INDEX. (>U5 [The references are to pages ] CONDITION-Coutlnued. whether precedent or subsequent depends upon intention, 109. effect of, if impossible or unlawful, 110. in restraint of alienation or marriage void, 110. distinguished from covenants, HI. from limitation, 112. from remainder, 112. annexed to power must be strictly complied with, 1>7. in lease, purpose and form of, 2l»l, 296. what covenants may be enforced by, 291. must not be unlawful, 291,292. of forfeiture, strictly construed, 292. what demand necessary tu make available, 292. what will constitute breach of, 293. who may take advantage of forfeiture, 294. once waived cannot be enforced again, 296. until enforced by re-entry, estate remains in lessee, 296. forfeiture for breach of, how waived, 339, 312. when equity will Interfere to prevent forfeiture, 341. in mortgage, usual form of, 401. special stipulations in form of, 416, 429. not broken until expiration of time allowed for grace on note, 413. what constitutes a breach of, 414, 496, 502. that upon default as to part, the whole debt shall become due, 414. See Defeasance. CONDITIONAL LIMITATION, definition of, 112. CONDITIONAL SALE, distinguished from mortgage, 383. CONFIRMATION, definition of, 59. may operate upon voidable, but not void estates, 60. requirements to a valid, 60. effect of, in United States, 60. CONFLICT OF LAWS, what law governs the acknowledgment of deed, 22". as to interest and usury laws, 418. CONNECTICUT, effect of covenant of seizin in, 137. when taxes are a lien upon land in, 142, note. public highway an incumbrance in, 145. measure of damages for breach of covenant of warranty in, 161, 162. two witnesses required to a deed in, 1S2. competency of witnesses to deed in, 183. record of deed constructive notice from date of filing only, 246. the common-law doctrine of mortgages prevails, 372. equity jurisdiction to declare an absolute deed a mortgage, 382. no lien exists in favor of vendors, 393. strict foreclosure the usual form, 506. age at which persons may make will of real estate in, 537. married women may devise and bequeath the same as if sole, 539. devise to witness to will when void, 541. qualification of witnesses to will, 541. marriage and birth of child revokes will, 567. time allowed for probating will, 572. foreign will not required to be first proved in place of testator's domicil, 574. whether wills are required to be recorded in, 579. 6U6 INDEX. [The references are to pages.] CONSKNT. See agreement; Contract. CONSIDKKATION, in contract of sale, whether must appear In writing, 6. must be valuable In order to enforce specific performance, 17. mere Inadequacy of, will not prevent enforcement of contract, 17, in deed, of two kinds, good and valuable, 78. what is a good, 78. what a valuable, 78. wliat necessary to support covenant to stand seized, 61, 79, 80. to support deed of bargain and sale, 62, 79, 80. marriage a valuable, when, 51, 78. when necessary, 78. need not be expressed in deed, 79, 80. payment of, when material, 80. expressed, how far open to explanation or contradiction, 81. for what purposes, 81. expressed, prima facie evidence of amount paid, 81, 82. See Fraudulent conveyance. in lease, necessity of, 289. may consist in what, 289. if fraudulent, immoral or unlawful, lease is void, 289. in mortgage, need not be expressed, 897. seal imports a sufficient, 897. debt secured, the real consideration, 397. a debt essential to support mortgage, 397. effect of illegal, 408,404. CONSTITUTIONALITY, of statutes designed to cure defects in acknowledgments, 240. CONSTRUCTION, of contract of sale, parol evidence admissible, when, 8. See Description ; Evidence. of deed, must If possiljle give it effect, 66, note, 83, 92. of words of grant, covenants implied from, 81, 154. of description of land, rules for, 80, 100. 8ee Description. o/M-i«, 582, .598. intention of testator the governing principle, .583. general rules for, .584, 588. of misnomer or misdescription of devisee, 589. who are entitled under the description as devisees, 590. when devisees are described as a class, whether they take per stirpes or per capita, 592. of words, "heirs," "next of kin," "relatives," "family," etc., 591. See Rule in Shelley's Case. as to what general words carry real estate, 593. as to the estate or interest which passes, 594. as to the description of the property devised, 595. of power in will to sell land, 596. by wliat words power is created, 596. of the execution of power in will, .598. CONSTRUCTIVE TRUSTS. .See Trusts. CONTINGENT REMAINDER, distinguished from conditional limitations, 112. CONTRACT, for purchase and sale of land, must be in writing, 2. need not be under seal, 10. INDEX. 607 [The references are to pages.] CONTRACT-Continued. writing must contain wbat, 5. memoranduni of slaeriff or auctioneer sullicient, 5. whetlier the consideration must be expressed in, G. need not be contained in a single document, 7. writings must rehite to same transaction, 7. sufHcient if property intended can be ascertained, 6. what a sullicient signing of, under Statute of Frauds, 9, 11. authority of agent to make, need not be in writing, 10. otherwise in some States, 10. when made by agent should purport to be act of principal, 11. parol, may be enforced when, 12. rights of purchasers under, 15. See Evidence ; Statute of Frauds. in mortgage, abridging right of mortgagor to redeem, void, 379. See Interest; Usury. CONTRIBUTION, between mortgagees, to redeem, 476. CONVEYANCES. See Deeds; Leases; Mortgages; Wills. COPY, of record, how authenticated for use in another State, 575. See Registration. of will, may be used in evidence, 579, 580. to be recorded in registry of deeds, 580. of foreign will, probate of, 573. where recorded, 580. See Probate. CORPORATIONS, effect of grant to unorganized, 44, note. prohibited by statute of mortmain from holding laud, 42. may within certain limits hold land, 42, 43. created in one State, may hold land in another, 43. right of State to make terms upon which land may be held by, 43. signing deed by, 176, 177. seal ot, to be attached to deed, by whom, 181. delivery of deed by and to a, 201. acknowledgment of deed by, 226. effect of actual notice of deed to one member of, 258. power of, to make leases, 282. COVENANT, running with land passes by quitclaim deed, 65. whether party to indenture is liable on, 68. implied by words of grant, 84. reservation when construed as, 107. distinguished from a condition. 111. in deed, definition of, 132. no special form of words necessary to create a, 132. constitutes no part of conveyance, 132. definition of, expressed and implied, 133. as to implied, 154. distinction between real and personal, 133. what, runs with the land, 133. what usually inserted in deed of full covenants, 134. purchaser of land without, has no remedy on failure of title, 184. of seizin and right to convey, 135. extent of, 135, 136. runs with land, where, 135. when broken, 136, 139. (308 INDEX. [The references arc to pages. | COVENANT— Continued. agiilnst incumbrances, object and effect of, 139. whether a covenant running with the land, 139, 140. by what brolcen, 142, 146. whether public highway, an incumbrance, 144, 145. of warranty, history and nature of, 146, 147. runs with tlie land, 146. estoopel by, 147. what constitutes a breach of, 148, 152. what will amount to an eviction, 149, 150. of special warranty, nature of, 152, 153. for further assurance, purpose of, 154. implied, definition of, 154, l.>5. what words are construed to imply, 154 what implied by " grant and demise," 154, 287. In what States implied by " grant, bargain and sell," 155, 156. what implied by, 155, 156. may be express and implied both in same deed, 157, 158. general implied, limited by an express, 15S. dependent and independent defined, 158. dependent or independent depends upon intention, 158. damages recoverable for breach of covenant of seizin, 159, 160 of covenant against incumbrances, 160, 161. of covenant of warranty, 161, 162. whether attorney's fees are included, 162. in lease, what may be enforced by condition, 291. purpose of, 297. express and implied, 297. what implied on part of lessor, 297, 299. for quiet enjoyment, extends only to possession, 298. when lease contains express, none will be implied, 298. lessor not bound to repair in absence of express, 298, 299, 307. what implied on part of lessee, 299, 300. who bound by implied, and who by express, 300, 301. effect of assignment of lease upon, 301. distinction between real and personal, 301. what, run with land, what do not, .^02. effect of covenant in lease running with land, 303. when assignee of lease must be named to be affected by, 303. what are usual on part of lessor, 304. for quiet enjoyment, 304. to i-epalr, 305-308. liability of landlord for repair on tenement house in absence of coven iii 305, 306. to renew the lease, 308. for continued renewals not favored, 308. terms of renewal should be clearlj- stated in lease, 308. specific performance of, to renew, 309. against Incumbrances, and for furtlier assurance, 310. what are usual, on part of lessee, 310. to pay rent, 310,314. effect of assignment of lease upon, 310. effect of destruction of premises upon, 311. effect of eviction of lessee, 312. what constitutes an eviction, 312,313. to pay taxes, 314, 315. what charges upon land are Included in, 314. to Insure the premises, 315, 316. when a real covenant, 315. INDEX. 009 [The references are to pages. | COVENAXT-Continued. what is a breach of, 316. not to use the premises for purposes of trade, 316. effect of, upon assignee of lease, 316. not to assign or underlet, 317. whether a covenant running with the land, 318. to deliver up premises in good repair, 318. effect of destruction of premises upon, 319, 320. in mortgage, for title, value of, 416, for payment of interest, 417, 422. to keep premises in repair, 422. for the payment of taxes, 423. to beep the premises insured, 425. COVENANT TO STAND SEIZED, definition of, 61. what consideration necessary to, 79, 80. the doctrine of, resorted to in the construction of deeds, 61. COVERTURE. See Married Women. CREDITOR. See Fraudulent Conveyance; Registration. CRIME, persons convicted of, incapable of making will, 541. CUSTOM, local, parties to lease are supposed to contract with reference to, 272, 273. D. DAKOTAH, homestead cannot be aliened, except by joint deed of husband and wife in, 168. record of deed constructive notice from date of filing only, 246. the equitable doctrine of mortgages prevails, 372. method of releasing mortgages, 491. age at which persons may make will of real estate in, 537. married women may devise and bequeath the same as if sole, 539. devise to witness to will when void, 541. property acquired after execution of will may pass by it, if so intended, 544. number of witnesses required to will, 541. copy of foreign will proved in home jurisdiction may be admitted to probate in, 574. DAMAGES, recoverable for breach of covenant of seizin, 159, 100. for breach of covenant against incumbrances, 160, 161. for breach of covenant of warranty, 161, 162. DATE, of deed, presumptive evidence of time of execution and delivery, 185, 186. in lease, fixes the time of commencement of term, unless otherwise specified 286. effect of uncertainty in, 286. DAY, whether included or excluded in computing time of termination of lease, 338. DEATH, when a revocation of a power of attorney, 216. DEED, definition of, 19. how distinguished from an agreement for, 18. (39) 610 INDEX. [The references are to pages.] DEED— Continued, estoppel by, I'.t. must be upon paper or parchment, 20. must be In writing, 20. printing included within the term writing, 20, 21. whether a printed signature to a, is sumcient, 21. whether writing with pencil is sufhclent, 21. effect of cancellation or destruction of, for the purpose of re-vesting title, 24 must be completely written before delivery, 22. as to alteration of, Sec A LTK RATION. as to filling up blanks in, See Blanks. who may make, 28, 44. different forms of, 55, 68. forms of, in use in the United States, 66. distinction between indentures and deeds-poll, 67. liability of one who accepts, but does not sign an indenture, OS. remedy against grantee failing to perform covenants in deed-poll, 68. (late of, where inserted, 09. date, how far essential to validity of, 69. takes effect from delivery and not from date, 69. date, prima facie evidence of time of delivery, 69. date may be contradicted, G9. presumption as to delivery when acknowledged subsequent to date, 69. names of parties to, effect of uncertainty in, 70, 75. whether grantor must be named in body of, 71, 72. grantee must be in esse, 72, 73. purpose of recitals descriptive of the parties to, 74. as to recitals in. See Uecitals. granting clause, showing intention to convey, essential to, 83. no particular form of w'ords required, 8.^5. construction of words of grant as affecting the conveyance, 8;-!. as to the covenants implied by words of grant, 84. See Covenants. description of premises, must be sufficient to identify the land, 86. when ambiguous premises may be located from references, monuments, etc., 86. parol evidence may be resorted to for what purpose, 87. description may be reformed, when, 88. rules of construction applicable to the description of the premises, 88, 100. See CONSTKUCTION. habendum, not an (issentlal part of a, 100. object and purposes of the habendum in a, 101. construction when habenduvi is repugnant to the grant, 102. habendum cannot Introduce new subject matter into the grant, 102. whether person not named in grant may take under habendum, 102. how far the habendum may explain or limit the premises of the grant, 103. limitation of the fee by word "heirs," etc.— rule in Shelley's Case, 103. freehold must not be limited to commence in future, 104. reddendum, object and purpost^ of, 106. distinction between a reservation and an exception, 1C6. the appropriate words for a reservation, 106. reservation sometimes construed as an implied covenant, 107. essentials to a good reservation, 107. conditions, limitations, e-a>-t. QUITCLAIM DEED. similar to ancient deed of release, 59, &4. •an in its Characteristics, 64. -•• nndT. 65, 2t>0. :ired title, 65. : . ng with the land will pass by, 65,66. R. RAILWAY, whether ^nce, 14-i. READING, r;- esslty of, as part of execution of deed, 173. eifect of fraud or mistake in, 174. REAL COVENANTS. See Coveka>-t. BECITALS, • " ' - ^ 75. -d,75. uDJess made so by statute, 75. . party estopped from denying, wh en , 76. INDEX. G39 [The references are to pages.] RECITALS.— Continued. effect of in ancient deeds, 76. degree of confidence to be placed in, "6. effect of, in giving notice of dormant title, 77. grantee, how far bound by, 77. purchaser bound to prosecute inquiries suggested by, at his peril, "7. in mortgage, what are usual, 397. in mortgagee's or trustee's deed, 532. RECOXVEYAXCE. See Defeasance. RECORD, copy of, to be used in another State, how authenticated, 575. See Registkatiox: Notice; Evidence. RECOVERIES, as a mode of conveying hind. See Fixe and Recovery. REDE.Ml'TIOX, of right of, by mortgagor, 4G7, 46S. when the right of, is barred, 468, 469. wlio entitled to, 470. of the sum paj'able to effect, 472. of the mortgagee's liability to account on a, 473, 475. contribution to effect, 476. See Equity of Redemption. REDDENDUM, object and purpose of, 106. distinguished from an exception, 106. words used to create, 106. sometimes construed as implied covenant, 107. construction of, 107. essentials to a good, 107. property reserved must be definitely described, 107. RE-ENTRY. See Condition. RE-EXECUTION. See Alteration. REFERENCE, to deed, map or survey, effect of, 98. REFORMING DEED, when deed may be reformed, 88. REGISTRATION, of deed, not delivery, 196. acknowledgment of deed as an essential to, 225. distinction between enrollment and, 242. purpose of, 242. equivalent to livery of seizin, 242. when record of deed is constructive notice, 243-245. necessity of acknowledgment or proof, 243. laws of, do not apply to disposition of lands by United States, 243. effect of, not authorized by law, 244. of defectively executed deeds, 244. is constructive notice of what, 244. effect of, in the wrong county, 245. •where land lies in two counties, '245. at what time record takes effect as notice, 245. (See the States Severally.) effect of recording within statutory time. 246, 247. when a deed maj- be considered as recorded, 248. proof of the date of filing for record, 249. G4U INDEX. [The references are to pages.] UEGISTRATION— Continued. to whoua the record Is notice, 249. of what fact the record Is notice, 250. as to deeds disconnected from the chain of title, 251. actual notice equivalent to, 252. not necessary as between parties to deed, 252. possession of premises as constituting notice, 253. necessary character of the possession, 253. what constitutes actual notice, 254-257. diligence required of purchasers in pursuing inquiry suggested, 255. notice to agent is notice to principal, 257-258. effect of notice to one member of a corporation, 258. effect of notice to husband, where land purchased by wife, 258. degree of proof required to establish actual notice, 258. unrecorded deed void, when, 259. what constitutes a bona flde purchaser, 260, 261. effect to quitclaim deed as notice, 64, 260. rights of a purchaser from an heir, 261, 262. rights of purchasers at sheriff's sale, 263. right of a judgment or attaching creditor, 264. right of mortgagee in a mortgage to secure pre existing debt, 264 whether purchaser at mortgage sale is purchaser for valuable considera- tion, 264. equity extinguished by a purchase without notice, 264. effect of mistake in record of deed, 265. effect of destruction of record, 265. seal of acknowledging officer need not be recorded, 266. whether record of deed is notice until indexed, 267. corrections and alterations of the record, 267, 268. 0/ lease, how far necessary, 322. o/iiHlls, statutory requirements in different States, 579, 580. certified copies of record admissible in evidence, 580. copy may be recorded in different counties, 5S0, 581. of foreign wills, 580. how authenticated, 575. in what otHce recorded, 580, 581. effect of record, 574. in what States wills are required to be recorded in deed records, 580. See Pbobate. BELATION. doctrine of, See DKMVEur. BKLKASE, deed of, essential to, 58. distinction between, and quitclaim deed, 58, 64. of mortgage, See Discharge. KEMAINDKR, distinguished from a oou'lition, 112. UKNT, an essential incident to a lease, 289. need not be money, 289. need not be fixed at creation of tenancy, 289. implied agreement to pay, 289. lease founded upon fraudulent or unlawful consideration, void, 289. words used In reserving, 2S9. to whom must be reserved, 2S9. INDEX. 641 [The rcforenccs are to pages.] RENT— Continued. lesaee liable to pay notwithstanding the destraction of piamisea, 3)5-307, .^11. effect of eviction of lessee upon his liability to pay, 311-314. effect of assignment of lease upon lessee's liability for, .^32. receipt of, a waiver of forfeiture, when, 3i0. RESfEW. See Covenant. REPAIRS. . See Covenant. REPUBLICATIOX. of will, what constitute*, express. 568. constructive, 509. REPURCHASE, right of, distiaguished from mortgage, 383, 384. REPUTATION, evidence of, when admissible in fixing boundaries, 94. RESERVATION. See Reddendum. sometimes construed as an implied covenant, 107. of rent in a lease, 289-290. of right to enter and make repairs, 307. of the right of possession to the m3rcgagor in a mortgage, 427. of tlie right to perform tlio condition, in a mortgage, 428. of the right to have a portion of premises released, 428. RESIDUARY DEVISE. See DEVISE. RESTRAINT OF MARRIAGE, condition in, void, 110. RESULTING TRUST. See Trusts. REVOCATION, of power of attorney, 216. of will, different modes of, 5.58-568. by subsequent will or codicil, 559-561. by cancellation or destruction, 561-563. whether cancellation of will revoking former will revives the latter, 563. by alienation or alteration of the estate, 664-566. by marriage and birth of issue, 566-568. RHODE ISLAND, time for which parol leases are binding, 322. the common -law doctrine of mortgages prevails, 372. ; equitj- jurisciction to declare an absolute deed a mortgage, 382. no lien exists in favor of vendors, 393. method of releasing mortgages, 491. entry and possession the usual remedy for enforcing a mortgage, 508. age at which persons may make will of real estate, 537. married women may devise real estate, subject to husband's riglit by the curtesy, 638, 539. devise to witness to the will void, 541. number of witnesses required to will, 650. copy of foreign will, proved in home jurisdiction, may be admitted to pro- bate in, 574. wills are required to be filed and recorded in office of probate, 580. (41) (',42 INDEX, [The refereeces are to pages.] uiGin. of rutlcinptlon. Sue KyuiTv OF Redemption. UIVEKS, what are navigable, rule as to boundaries on, 95-97. lULK IN SHELLEY'S CASE, Uelitii'd, Mi. how far In force lu United States, 103, 101. s. SALI-:, of real estate. See Contract. SATISFACTION, of mortgage, entry of, 490-492. See Dlscharge. SCROLL, may be used as seal. In what States, 179. must appear that the instrument was intended to be sealed, 163, See Deed. .SEAL, of officer taking acknowledgment must bo attached, '237. essential to validity of deed at common law, 177. In what States abolished, 178. what constitutes a, at common law, 17S. scroll may be used as, in what States, 179. several persons may adopt tlie same, 180. of corporation, 181. SEIZIN. See Livkky of Seizin. SEPARATE ESTATE. See Husband and Wife; Married Women, SHELLEY'S CASE. See Rule in Sublley's Case. SUEKIFF, memorandum of sale by, binding upon both parties, 10, SHERIFF'S SALE, rights of purchaser at, under registry laws, 263. SHIFTING USE. See Uses. SIGNATURE, to contract for sale of land, what sufficient, 9. when reiiulred to be at bottom of the instrument, 10. by agent to executory contract, what authority sufficient to authorize, 10. of corporation having a common seal, 10. to deed, what Is sufficient, 175. by third per.son lu grantor's presence, 175. by third person in grantor's absence, must be authorized by sealed instru- ment, 17."), 17G, 'JOS, 217. Implied power of partner does not authorize, to sealed instrument, 38, 39. by wrong nanie, effect of, 170. INDEX. 6-io [The references are to pages.] SIGXATURE-Continued. when forfjed, no notice Is necessary to make the deed a nullity, 176. where one of several grantors acts as attorney for the others, 176. by corporation, 176. to letise, by firm, 32:^. to will, what sulHcieni, 54H. whether name at commencement or in body of the Instrument may amount to, 549. in some States required by statute to be at the end of the instrument, 548. how testator may sign will, 548, 549. will may be signed by another person by his direction and in his pres- ence, 549. of testator, must be made or acknowledged in presence of the witnesses, 550 before attestation, 550. See Attestation. SOUTH CAUOLINA, covenant against incumbrances held to run with the land, 140. a scroll may be used as a seal in, 179. two witnesses required to deed in, 182. time allowed for recording deeds in, 247. deeds not recorded within the prescribed time become void, 247, 248. equity jurisdiction to declare an absolute deed a mortgage, 382. equitable mortgage by deposit of title deeds, 391. no lien exists in favor of vendors, 393. age at whicii persons may make will of real estate in, 537. married women may dispose of separate property by will same as if sole, 538, 539. devise to witness to the will how far void, 541. qualification of witnesses to will, 550. copy of foreign will, proved in home jurisdiction, may be admitted to pro- bate in, 574. SPECIFIC PERFORMANCE, of contract for sale of real estate, 15. rights of the parties on, 15. when equity will compel, 16. depends upon the inadequacy of remedy at law, 16, 17. penalty added in contract of sale, as liquidated damages, will not prevent, 16. mutual enforcement must be practicable in order to obtain, 16. will not be decreed against a vendor who has no title, 17. but otherwise if vendor can make a good title on final hearing of the bill for, 17. contract must be complete and certain both as to parties, price and subject- matter, 17. contract must be supported by a valuable consideration to authorize en- forcement of, 17. mere inadequacy of consideration will not prevent, 17. not decreed, in case of uncertainty, 18. not decreed, where there is a want of fairness, 18. not decreed, when it Imposes great hardship on either party, 18. mistake, misrepresentation of fraud will prevent, 18. of covenant to renew lease, 309. SPRINGING USE. See USES. STATUTES. See the States Severally. (;.14 INDEX. [Tbe references arc to pages.] STATL Tl.> ul lUALUS, when enacted, 2. contnict of sale required to be in vcritli.g by, 2. to what Interest In hind It applies, 3. statutory delinltion of Interest in land contemplated by tbe, 3. wliat the contract must contain, 0. uienioi anduiu of sheriff or auctioneer sufficient to contract under, 5. whether consideration must be expressed in writing under, 6. contract need not be contained in a single instrument, 7. If In different documents, they must all relate to same contract, 7. no particular form of agreement required by, 7. description of property in contract of sale, what sufBcient under, 7. contract must Ije signed by party to be charged, 9. whether both parties must sign or be bound by contract, 9, 10. In what part of the instrument the signature may appear, 10. llxiuK Initials, the name appearingelsewhere, a sufficient signature under, 10. whether a printed signature is sutticient under, 10. whether signature with lead pencil is sufficient under, 10. agreement need not be under seal, 10. corporation aggregate must use common seal in signing, 10. signature by figent to agreement for sole under, 10. In what States authority of agent to sign contract of sale must be in writing, 11. form In which agent should sign, 11. what i)art performance will take parol agreement out of, 12-U. statutory provisions as to effect of part performance, 12. payment of earnest or purchase-money dots not constitute such part per- formance, 14. effect in equity, of making improvements upon the faith of a parol contract of sale, 15. deeds required to be in writing under, 20. part printed and part written deed, a suflicient compliance with, 20. signing deed necessary under, 21. whether printed signature is sufficient under, 21. whether deed written and subscribed with pencil is void under, 21. creation of trusts under, 123. effect of, upon execution of lease, 322. requirements of, as to assignment of lease, 331. re(|ulrements of, as to express surrender of lease, 345,346. mortgages required to be executed in same manner as deeds, 374, .S75. proving absolute deed a mortgage, an exception, or innovation upon, 380. doctrine of equitable lien by deposit of title deeds in conllict with, 'AOl. aaslgnment of mortgage under, 448. STATUTK.S OF LIMITATION. See Limitation. STATUTES OF USES, conveyances deriving their effect from, 61. effect of ui)on deed of defeasance, Gl. covenant to stand seized, 01. bargain and sale, G2, 03. line and recovery, 64. deeds under, must have consideration, 79, 80. to what extent recognized in the United States, 117. STIPULATIONS. See Conditions ; Covenant. STttEAMS, rules as to, being boundaries of land, 9S, 96. INDEX. '345 [The references are to pagea.] STREAMS— Continued. what are navigable, OG. ownership of soil under navigable, 07. STUKKT, bounding laud by, include the soil to its center, 95. STRICT FORECLOSURE, of mortgage, See FOEECLOSUKE. SUBSUUIBIXG WITNESSES. (See the States Seveii^vllv.) to deed, number required in the different States, 181, 1S2. qualification of, 1S3. to lease, number required, 323. to will, number required, 550, 551. qualification of, 551. See Atte.statiox. SUBROGATION. See Tatmbnt. SUNDAY, delivery of deed on, void, 53. SUPPORT, mortgage for, 408. See Condition. SURETY, mortgage to idemnif j", 406. See Condition. SURRENDER, definition of, 60. is the converse of a release, 60. operates by the falling of a less estate inj:© a greater, 60. privity of estate essential to a, 60. deed of, when necessarj', 60. See Determination. SUSPENSION, of power, 130. See Powers. T. TACKING, doctrine of, 405. See Mortgage. TAXES, lieu of, an incumbrance, 142. whether taxes assessed after conveyance, but on list, existing at time thereof is an incumbrance, 142, note, covenant for payment of, in mortgage, 423, 424. payment of, may be enforced by condition how, 42S. See Covenant. C4() INDEX. fTlie references are to pages,] TENANCY, modes of creiiting, at coiuuion law, JTO. nuture of, existing between mortgagor and mortgagee, 364. TENANTS IX COMMON, cuunot convey a distinct portion of common estate, 38. deed of, valid as to all persons except bis co-tenant, 38. may convey his entire undivided interest, 38. partition of lands between, 68. effect of lease by, '.'S".'. lease of, how enforced, 2S2. TENANT FOR LIFE, rights and duties of a, 270, -271. TENANT FOR YKARS, may grant under lease, when, 281. distinction between under-lease and assignment, 281. essentials to an under-lease, 281. TENDER. See Payment. TENNESSEE, valuable consideration not essential to deed of bargain and sale in, 62. effect of covenant of seizin in, 137. homestead cannot be aliened, except by joint deed of husband and wife in, 168. what constitutes a sullicient seal in, 179. two witnesses required to deed in, 182. record of deed constructive notice from date of filing only, 246. lease vallee Dkvise. subject-matter essential to operation of, 542. what law governs validity of, 543. what estate or interest in land will pass by, 548. whether after-acquired property will pass by, 544. the execution of, 546, 557. governed by statute, 546. (See the States Severally.) must be In writing, 546. of what material, 54G, 547. the signature of testator to, 548,549. In what State a, must be sealed, 550. number of attesting witnesses required to, 550. competency of attesting witnesses, 551. how witnesses must sign, 552, 556. See Attestation. execution of holographic wills, 557. revocation of, 558, 568. See Revocation. republication of, 568, .570. See liEi'Ui! ligation. probate of, 571, 581. See Probate. registration of, 579, 531. See Kbgistration. construction of, 582, 598. general rules of, 582, 588. as to devisees, 588, 593. as to estate and property conveyed by, 593, 596. as to power to sell land in, 596, 598. WISCONSIN, whetlier re-delivery of deed for purpose of cancellation revests title in grantor, 25. homestead cannot be aliened except by joint deed of husband and wife in, 168. what constitutes a sufficient seal in, 179. a scroll may be used as a seal in, 179. record of deed constructive notice from date of filing only, 246. the equitable doctrine of mortgages prevails, 872. INDEX. 051 [The references are to pages.] WISCONSIN-Contlnued. ground of equitable jurisdiction to declare an absolute deed a mortgage, 382. equitable mortgage by deposite of title deeds, 391. lien t'xists in favor of vendors for purciiase-money, 393. method of releasing mortgages, 491. age at which persons may make will of real estate in, 537. married women may devise and bequeath the same as if sole, 538, 539, devise to witness to the will, how far void, 541. whether property acquired after execution of will may pass under its pro- visions, 544. number of witnesses required to will, 550, foreign will which has been duly probated in place;of testator's domicile, may be recorded, and such record has effect of probate, 574. copy of will proved in other county may be recorded in county where land is situated, 580. wills to be recorded in office of registry of deeds, 530. WYOMING, method of releasing mortgages, 491. married women may devise and bequeath the same as it sole, .53S, 539. A LAW LIBRARY UNIVEKSnY OF CALIFORNU SEP 6 195^ LOS ANGELES UC SODTHf RN REGIONAL LIBRARY FACILITY AA 000 729 723 ^ !l.£ S'