A A cs UTH u ERN R GIO 5 1 LIBR 2 8 -t» 5 8 r^'^^^% p UNIVERSITY h OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LAW LIBRARY OF LOS ANGELES COUNTY r:r- LAWU OF LOS ANGELES COUNTY A TREATISE THE AMERICAN LAW REAL PROPERTY BY EMORY WASHBURX, LL.D. H I BUSSEY PROFESSOR OF LAW IN HARVARD UNIVERSITY; AUTHOR OF A TREATISE ON THE AMERICAN LAW OF EASEMENTS AND SERVITUDES SIXTH EDITION BY JOHN WURTS, M.A., LL.B. PROFESSOR OF THE LAW OF REAL PROPERTY IN THE YALE LAW SCHOOL AUTHOR OF INDEX-DIGEST OF THE FLORIDA REPORTS VOLUME II BOSTON LITTLE, BROWN, AND COMPANY 1902 / Entered according to Act of Congress, in the year 1860, by EMOKY WASHBURN, In the Clerk's Office of the District Court for the District of Massachusetts. Entered according to Act of Congress, in the year 1864, by EMORY WASHBURN, In the Clerk's Office of the District Coart for the District of Massachusetts. Entered according to Act of Congress, in the year 1868, by EMORY WASHBURN, In the Clerk's Office of the District Court for the District of Massachusetts. Entered according to Act of Congress, in the year 1876, by EMORY WASHBURN, In the Office of the Librarian of Congress, at Washington. Copyright, 1886, By Little, Brown, and Company. Copyright, 1902, By Little, Brown, and Company. University Press : John Wilson and Son, Cambridge, U.S.A. CONTENTS. CHAPTER XL. XLT. XLII. XLIII. XLIV. XLV. XLVI. XLVII. XLVIIL XLIX. L. LI. LII. LIII. LIV. LV. LVL LVIL LVIIL LIX. LX. LXL LXIL PAGE Estates upon Condition 1 Mortgages — Nature and Form of Mortgages . 30 Mortgages with Powers of Sale 59 Trust Mortgages 72 Equitable Mortgages . 76 Mortgages — Of the INIortgagee's Interest ... 88 Mortgages — Of the Mortgagor's Interest . . . 139 Mortgages — Merger of Interest 172 Mortgages — Of the Personal relieving the Real Estate 177 Mortgages — Of Contribution to redeem . . . 180 Mortgages — Of Accounting by the Mortgagee . 200 Mortgages — Of Foreclosure . 216 Incorporeal Hereditaments 246 Incorporeal Hereditaments — Franchises <, . . 265 Incorporeal Hereditaments — Easements . . . 272 Uses prior to the Statute of Uses 362 Uses after the Statute of Uses 378 Trusts — Their Nature, Duration, Qualities, and Incidents 413 Trusts — Classification of Trusts 420 Trusts — How created, declared, and trans- ferred 463 Trusts — Rights, Powers, and Duties of Parties to Trusts 479 Trusts under the Law of New York 490 Estates in Reversion 495 (f1 m IV CONTENTS. CHAPTER PAGE LXIIl. Keiiiaiiulers — Nature and Characteristics of Reniainders 504 LXIV. Vested Remainders 514 LXV. Cross-remainders " . . 523 LXVI. Contingent Remainders' 525 LXVII. Contingent Remainders — The vesting of Con- tingent Remainders 543 LXVIII. Contingent Remainders — The Particular Es- tate 548 LXIX. Contingent Remainders — How defeated . . 552 LXX. Contingent Remainders — Rule in Shelley's Case 558 LXXI. Contingent Uses 568 LXXII. Springing Uses 574 LXXIII. Shifting Uses 578 LXXIV. Powers — Nature and Classification of Powers 591 LXXV. Powers — Suspension or Destruction of Powers 601 LXXVI. Powers — Application of Powers in American and English Law 606 LXXVII. Powers — How Powers may be created . . . 609 LXXVIII. Powers — By whom and how a Power may be executed 612 LXXIX. Powers — Excessive or Defective Execution of Powers 630 LXXX. Powers — How far Equity aids the Execution of Powers 636 LXXXI. Executory Devises — Nature and Classification of Executory Devises 639 LXXXII. Executory Devises — Interests of Executory Devisees 660 LXXXIII. Executor}- Devises of Chattel Interests . . . 670 LXXXIV. Accumulations and the Rule against Perpetui- ties 675 LAW OF REAL PROPERTY. CHAPTER XL. ESTATES UPON CONDITION. § 935. Condition as a quality of estates. 936. Testamentary conditions and trusts. 937. Various kinds of condition. 938. Terms implying a condition. 939. Examples. ■" 940. Conditions reserved only to grantor and heirs. 941. When precedent or subsequent. ' 942. Conditions subsequent, strict construction. '943. Unlawful and impossible conditions subsequent. ■' 944. Valid restrictive conditions. 945. Conditions in restraint of marriage. 946. Unlawful and impossible, conditions precedent. 947. Illustrations. 948. Devise — Time for performance. 949. Conveyance — Time for performance. 950. Implied conditions. 951. Who may enforce, who perform. » 952. Illustrations. 953. Entry for condition broken. 954. Who may enter for condition broken. 955. Eight of grantor's devisee to enter. \,956. Reserving right of entry. 957. When actual entry necessary to enforce condition. 958. Intention accompanying entry. 959. Conditions enforced regardless of damage. 960. When breach of condition excused. 961. Waiver. 962. Waiver, continued. 963. Equitable relief against forfeiture. 964. Breaches against which equity will not relieve. 965. Equitable relief, recapitulation. 966. Condition not affected by change of ownership. 967. Quantity of estate not affected by condition. 968. Reversionary nature of right to re-enter. 969. Perpetuities. 970. Conditions and conditional limitations differentiated. II. — 1 2 ESTATES UPON CONDITION. § 971. Conditional limitation, how expressed, 972. No remainder alter a fee-simple. 973. Conditional limitations and perpetuities. § 935. Condition as a Quality of Estates. — Estates maj be affected by some condition upon or by which they may com- mence, be enlarged, or defeated. Thus, an estate in fee or for life, for instance, may be qualified in this way ; and wlien treat- ing of this subject, it is only necessary to keep in mind the dis- tinction between an estate in respect to its quantity or duration, and its qualities.^ An estate upon condition is one which may be created, enlarged, or defeated, by the happening or not hap- pening of some contingent event.^ A condition is a qualification or restriction annexed to a conveyance, and so united with it in the deed as to qualify or restrain it.^ It cannot, however, be created by parol if the deed is absolute in its terms.* And the word " conditioned " in a deed may have the effect of the reser- vation of an easement in the granted premises, as where A granted land to B conditioned that no building other than the one described should be erected on the premises, it was held not to create an estate upon condition nor a covenant, but to limit the uses which might be made of the land. And as the grantor owned adjacent lands to the granted premises, which were to be affected by the uses made of these, it was held that the restriction barred the grantee and all persons claiming un- der him.^ And where the deed, though in usual form, recited diat it was understood by the parties that the premises were not to be used for any other than certain purposes expressed, as, for example, "a d^pot square," it was held to be a covenant, and not a condition.^ But where there is only a covenant or a revocation of an easement and not a condition, it will require words of inheritance to enable it to enure to bind others than the immediate parties thereto.'^ 1 Co. Lit. 201 a. 2 Co. Lit. 201 a ; 2 Flint. Real Prop. 225. 3 Labaree v. Carleton, 53 Me. 211. * Marshall, etc. School v. Iowa, etc. School, 28 Iowa, 360. 6 Fuller V. Arms, 45 Vt. 400. So Ayling v. Kramer, 133 Mass. 12 ; Kennedy V. Owen, 136 Mass. 199 ; Skinner v. Shepherd, 130 Mass. ISO. But where the grantor's adjoining land was not referred to, there was no easement. Ibid. 6 Thornton v. Trammell, 39 Ga. 202. ' Skinner v. Shepherd, 130 Mass. 180 ; and a restriction against a " building " ESTATES UPON CONDITION. 3 § 936. Testamentary Conditions and Trusts. — It is sometimes difficult to determine in respect to estates created by devise, whether they are estates upon condition or trusts. If it be the first, the effect of a breach of the condition is to defeat the estate, and the heirs may come in and take it with all improve- ments made upon it, and discharged of all intermediate charges and incumbrances. But if the limitations in the devise are to be taken as directions to trustees, explaining the terms upon which the devise is made, it will be taken to be a trust, which those who take the estate are bound to perform, and in case of a breach, a court of equity will interpose and enforce perform- ance, and, by thus preserving the estate, carry out the charity or bounty of the testator. And what the old law treated as a devise upon condition, courts would now, very generally, con- strue a devise in fee upon trust. In this way, instead of the heir taking advantage of the condition, the cestui que trust could compel an observance of the trust. And the question of intent would be inquired into as gathered from the whole de- vise, although the testator may have used the word " proviso," ordinarily a word of condition, in connection with his devise.-^ § 937. Various Kinds of Condition. — The condition may be express or implied, and it may be precedent or subsequent. An express condition, otherwise called a condition in deed, is one declared in terms in the deed or instrument by which the estate is created. An implied condition, or a condition in law, is one which the law implies, either from its being always understood to be annexed to certain estates, or as annexed to estates held under certain circumstances. Conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vested. 2 § 938. Terms implying a Condition. — Among the forms of expression which imply a condition in a grant, the writers give is not broken by the construction of a brick fence. Nowell i'. Bost. Acad. N. Dame, id. 209. 1 Stanly v. Colt, 5 Wall. 119, 165 ; 1 Sugd. Powers (7th Lond. ed.), 123 ; Sohier V. Trin. Ch., 109 Mass. 1 ; Episc. City Miss. v. Appleton, 117 Mass. 326. 2 Co. Lit. 201 a ; 2 Flint. Real Prop. 227, 228 ; Vanhorne v. Dorrance, 3 Dall. 317. 4 ESTATES UPON CONDITION. the following : " on condition " — " provided always " — " if it shall so happen " — or " so that he the grantee pay, etc., within a specified time ; " and grants made upon any of these terms vest a conditional estate in the grantee. And it is said other words make a condition, if there be added a conclusion with a clause of re-entry, or without such clause, if they declare that, if tlie feoffee does or does not do such an act, his estate shall cease or be void.^ If a covenant be followed by a clause of forfeiture, and it is broken, it will be construed to be a condi- tion.^ But courts always construe clauses in deeds as cove- nants rather than conditions, if they can reasonably do so. Where the condition was that if the grantee failed to do a certain thing he should pay the grantor so many dollars ; and he broke the condition by failing to do the required act, but tendered the money, it was held to be a condition subse- quent which the grantee had so far performed, that the grantor's right to enter for a breach was defeated.^ What will or will not constitute a condition in a deed is often a matter of nice construction by courts, and belongs rather to another de- partment of the law than that relating to the nature and inci- dents of estates upon condition. Words, moreover, often create a condition in a will which would not if made in a deed, as where in a will an intention is expressed in devising the land, that the devisee should or should not do certain things in re- spect to it, it may be construed as creating a conditional estate to him. But it is said, " if one makes a feoffment in fee " ea intentione, ad effectum, etc., that the feoffor shall do or not do such an act, these words do not make the estate conditional, but it is absolute notwithstanding. And yet where the grant is to a public or charitable use and is expressed to be for a specific or limited purpose, the land cannot be appropriated to any other. If it is, the grantor retains sufficient interest in the subject-matter of the grant to apply to the court of chancery to restrain such diversion.* The grant of a lot of land to set a 1 Lit. §§ 328, 329, 330 ; Wheeler v. Walker, 2 Conn. 201 ; Com. Dig. Condi- tion, A. 2. See also 2 Wood, Conv. (Powell's ed.) 505, 512 et seq. ; Langley v. Chapin, 134 Mass. 82. 2 Moore v. Pitts, 53 N. Y. 85. 8 Board, etc. v. Trustees, etc., 63 111. 204. * Warren v. The Mayor, etc., 22 Iowa, 351. ESTATES UPON CONDITION. 5 meeting-house thereon does not imply a condition.^ And " an estate upon condition cannot be created by deed, except where the terms of the grant will admit of no other reasonable inter- pretation." Therefore, reciting in the deed that it is in consid- eration of a certain sum, and that the grantee is to do certain things, is not an estate upon condition, not being in terms upon condition, nor containing a clause of re-entry or forfeiture.'^ And yet these words may create a condition if a right of re- entry is reserved in favor of the grantor in case of failure to carry out the intention thus expressed.^ §939. Examples. — An instance of a condition precedent -^ would be a grant to A upon his marriage. So a lease to B for ten years, and if he pay the lessor £100 by or before a certain time, that he shall have the land to him and his heirs. In the one case the deed takes effect to create, in the other to enlarge, the estate, when, and not until, the pre- scribed event shall have happened.* So where A granted land to B, reserving the pine timber thereon if he get it off by a certain time. Such parts of it as he did not get off by that time remained the property of the grantor.^ An instance of a condition subsequent would be a grant to A and his heirs, 'r'T' tenants of the manor of Dale, or to B so long as she should \ V remain a widow. The estates in these cases vest subject to be divested in the one case upon the grantee's ceasing to be tenants of Dale, and in the other upon the marriage of the grantee.^ So a deed to one in which the grantor reserves to himself a rent, with a right to enter and defeat the estate if the rent shall be in arrear." A condition annexed to a con- veyance in fee that the grantee shall pay the grantor or his 1 Packard v. Ames, 16 Gray, 327. 2 Ayer i'. Emery, 14 Allen, 67, 70 ; Sumner v. Darnell, 128 Ind. 38 ; s. c 27 N. E. Rep. 162 ; Ruggles v. Clare, 45 Kan. 662 ; s. c. 26 Pac. Rep. 25. 8 2 Wood, Conv. (Powell's ed.) 513, 514 ; Shep. Touch. 123 ; Rawson v. Uxbridge. 7 Allen, 125 ; Co. Lit. 204 a; Cowper v. Andrews, Hob. 40 a ; Dyer, 138; Doct. & Stud. Dial. 2, c. 34 ; Warren r. Patterson, 56 111. Ill, 119 ; Watters v. Breden, 70 Penn. St. 235 ; Faith v. Bowles, 86 Md. 13 ; s. c. 37 Atl. Rep. 711 ; s. c. 63 Am. St. Rep. 489. * 2 Flint. Real Prop. 228 ; Lit. § 350. 5 Monroe v. Bowen, 26 Mich. 523. « 2 Flint. Real Prop. 229. ' Lit. § 325 ; Watters v. Breden, supra. 6 ESTATES UPON CONDITION. heirs an annual rent, and in default the grantor may enter, is a good condition.^ In Rawson v. Uxbridge,^ the devise was of land to a town for a burying-place forever, and was held not to be a condition at common law. But in Indiana, a grant of a lot of land was made to a town "for the purpose of erecting a tan-yard on it," and was held to constitute a condi- tion subsequent, and the vendee having erected a tan-yard upon the premises, and maintained it for twenty-four years, the title was not defeated, though he then discontinued that use of the estate.^ An executed estate will not be defeated by the grantee's failure to perform an agreement. In order that the condition, in such a case, should defeat the estate, the grant must be in its nature executory.* But a grant upon condition that the land should be used for a specific purpose, — a school and schoolhouse, for instance, — to be forfeited if used for any other purpose, upon the grantor paying the ap- praised value of the buildings, was held to be a grant upon condition at common law, which the grantor or his heirs could only take advantage of by making entry after the breach.^ If the condition requires the grantee to use the granted premises for a special purpose, and he do so, there is nothing to prevent his using it for any other purpose not inconsistent with this.^ § 940. Conditions reserved only to Grantor and Heirs. — The doctrine of estates upon condition seems to have been origi- nally derived from the feudal law, and grew out of the condi- tions upon which fiefs were granted. If the tenant neglected to pay or perform his service, the lord might resume his fief. It is upon this ground that conditions are held to be reserved to the grantor and his heirs only, and he and they alone can 1 Van Eensselaer v. Ball, 19 N. Y. 100 ; Littleton, § 325. 2 7 Allen, 125. 3 Hunt V. Beeson, 18 Ind. 380. * Laberee v. Caileton, 53 Me, 211. For conveyances in consideration of and conditioned on the support of the grantor, see Stamper i'. Stamper, 121 N. C. 251 ; s. c. 28 S. E. Rep. 20 ; Powers v. Powers, — Ky. ^ — - ; s. c. 39 S. W. Eep. 825 ; Cash V. Cash, ~ Ky. ; s. c. 41 S. W. Rep. 579 ; Gilchrist v. Foxen, 95 Wis. 428 ; s. c. 70 N. W. Rej.. 585 ; Dunklee v. Hooper, 69 Vt. 65 ; s. c 37 Atl. Rep. 225 ; Shum v. Claghorn, 69 Vt. 45 ; s. c. 37 Atl. Rep. 2a6. s Warner v. Bennett, 31 Conn. 468. 6 McKelway v. Seymour, 49 N. J. 321. ESTATES UPON CONDITION. 7 avail of the right of resuming the estate for a breach. And the grantor's remedy for such a breach is by a resumption of the estate granted.^ § 941. When Precedent or Subsequent. — But it is not al- ways easy to determine whether the condition created by the words of a devise or conveyance is precedent or subsequent. The construction must depend upon the intention of the par- tics, as gathered from the instrument and the existing facts, since no technical words are necessary to determine the ques- tion. In the case cited below, the court state as a rule, that "if the act or condition required do not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent. "^ * In construing doubtful condi- tions the courts prefer conditions subsequent to conditions precedent. 2 § 942. Conditions Subsequent, Strict Construction. — But conditions subsequent, especially when relied on to work a * Note. — Among the numerous cases of conditional devises and grants, A devised to B and C a certain estate, " they jointly and severally paying to E F " so much money "within ten years after testator's decease," held an estate defeasi- ble upon failure to pay according to its terms. Wheeler v. Walker, 2 Conn. 196. So a grant to a religious society upon condition that it should be held for the support of a minister preaching in a certain church, standing upon a certain lot of land. The proprietors took down the church, and erected it upon another lot. This was held to work a forfeiture of the estate, by the condition subsequent being broken. Austin v. Cambridgeport Parish, 21 Pick. 215. So where the grant was upon condition that the public buildings of a county shall be fixed upon a i)art of it, and they were fixed upon another lot. Police Jury v. Reeves, 18 Martin, 221. See Stuyvesant v. The Mayor, 11 Paige, 414, 427. So a devise of land for the purpose of building a schoolhouse, provided it is built within such a distance of such an object, was held a condition subsequent. Hayden v. Stoughton, 5 Pick. 528. 1 Butler's note 84 to Co. Lit. 201 a. 2 Underbill v. Saratoga R. R., 20 Barb. 455. See also Barruso v. Madau, 2 Johns. 145 ; Finlay v. King, 3 Pet. 346 ; Rogan v. Walker, 1 Wis. 527. 3 Congregational Church Bldg. Soc. v. Everett, 85 Md. 79 ; s. c. 36 Atl. Rep. 654 ; s. c. 60 Am. St. Rep. 308. 8 ESTATES UPON CONDITION. forfeiture, must be created by express terms or clear impli- cation, and are construed strictly.^ Thus where A conveyed land to B on condition that he should not convey the same, except by lease, prior to 1861. Before that time B leased it for ninety-nine years, and gave the lessee a covenant to con- vey the fee after that date. It was held not to be such a conveyance of the estate as to be a breach of the condition. ^ Upon these principles, where a condition applies in terms to the grantee or lessee without mention of heirs, executors, or assigns, the condition cannot be broken after the death of the grantee or lessee. If heirs and executors are named, but not assigns, it will not be broken by any act of an assignee. Accordingly, where the grant of an estate was upon condi- tion that the grantee should maintain a fence, without nam- ing his heirs, executors, or assigns, it was held that the neglect of his heirs, after his death, to do it, did not work a forfeiture.^ § 943. Unlawful and Impossible Conditions Subsequent. — Conditions may be impossible, unlawful, or incompatible with the nature of the estate to which they are annexed, and their effect is then often materially different whether they are in their nature precedent or subsequent. A condition subse- quent, if it has any effect, defeats an estate already vested, but if such condition is impossible or unlawful at the time of creating the estate, or becomes impossible by the act of the feoffor or the act of God, it leaves the estate an absolute and unconditional one, since it is the condition itself that is or becomes void. Thus, if an estate be made to A B and his heirs, but upon the condition that unless he shall go to Rome in twenty-four hours, or marry J S by such a day, and she 1 Gadbeny v. Sheppard, 27 Miss. 203 ; Ludlow v. N. Y. & H. B. R., 12 Barh. 440; Merrifield v. Cobleigh, 4 Cush. 178, 184 ; Bradstreet v. Clark, 21 Pick. 389 : M'Williams v. Nisly, 2 S. & R. 507, 513; Martin v. Ballou, 13 Barb. 119 ; Hoyt V. Kimball, 49 N. H. 322; Sumner v. Darnell, 128 Ind. 38 ; s. c. 27 N. E. Rep. 162. But see Cleve., etc. R. R. v. Coburn, 91 Ind. 557. 2 Voris V. Renshaw, 49 111. 425. So Woodworth v. Payne, 74 N. Y. 196, where a condition in a deed of land "for cliurch purposes" that pews should not be " rented or sold " was held not to extend to a sale of the whole church for debt. 3 Emerson v. Simpson, 43 N. H. 475 ; Page v. Palmer, 48 N. H. 385. ESTATES UPON CONDITION. 9 dies before that day, or the grantor himself marries her,^ or on condition of supporting a person, who dies before the de- vise takes effect,^ or unless the grantee shall kill a certain person, or, if the estate is a fee-simple, in case he shall ever alien it,^ that the estate shall be defeated, the effect is to render the estate absolute in the grantee or devisee. And this principle applies as well to estates for life or years as to those in fee. And the same would be the effect if the condi- tion was for the exemption of the property from the ordinary incidents belonging to such propert}^ as that it should not be liable for the debts of the grantee or devisee.^ § 944. Valid Restrictive Conditions. — There may be valid conditions restricting the free conveyance of an estate even 1 Hughes V. Edwards, 9 Wheat. 489; Taylor v. Sutton, 15 Ga. 103 ; 2 Fliut. Ileal Prop. 232, 233 ; Co. Lit. 206 a ; Badlani v. Tucker, 1 Pick. 28i. 2 Parker v. Parker, 123 Mass. 584. 8 Co. Lit. 206 ; Taylor v. Sutton, 15 Ga. 103 ; Gadberry v. Sheppard, 27 Miss. 203; Blackstone Bk. v. Davis, 21 Pick. 42; Tud. Gas. 796; Brandon v. Robin- son, 18 Ves. 429 ; Willis v. Hiscox, 4 Mylne k C. 197 ; Bradley v. Peixoto, 3 Ves. 324 ; Henning v. Harrison, 13 Bush, 723 ; Lovett v. Gillender, 35 N. Y. 67 ; Jauretche v. Proctor, 48 Penn. St. 466 ; Kepple's App., 53 Penn. St. 211 ; Moore v. Sanders, 15 S. C. 440. And a gift over in event of such alienation is void. Ibid. How far a condition against an alienation limited in point of time is good on a gift in fee is not clear upon the authorities. In Mandlebaura v. McDonell, 29 Mich. 78, every such condition is declared to be bad, because the grantor retains no reversion ; and so see Ware v. Cann, 10 B. & C. 433 ; Bradley i'. Peixoto, sicpra; Latimer v. Waddell, 119 N. C. 370 ; s. c. 26 S. E. Rep. 122 ; and see a»ite, § 143. Contra, McWilliams v. Nisly, 2 S. & R. 507, 513; Stewart v. Brady, 3 Bush, 623 ; Langdon v. Ingram, 28 Ind. 360. The cases on both sides are fully collected and discussed in Mr. Gray's excellent work on Restraints on Alienation, to which the reader is referred ; and the conclusion is there reached that the weight of authority is against the validity of such restraints. Where, however, the estate is less than a fee, whether for life or for years, a condition of forfeiture upon alienation may be validly annexed thereto at its creation, and with or without a gift over. Gray, Restr. on Alien. §§ 78-81. * Blackstone Bk. v. Davis, 21 Pick. 42 ; Tud. Cas. 796 ; Brandon v. Robin- son, 18 Ves. 429 ; McCleary v. Ellis, 54 Iowa, 311. The condition intended here is a bare prohibition or direction against aliening a liability for debts unaccom- panied by a forfeiture or gift over ; for if these latter exist, the condition is good, as we have seen for estates less than a fee. See preceding note ; Gray, Restr. on Alien., uhi supra. But in some recent cases such a prohibition has been sustained where the gift is in tru.st. Broadway Bk. v. Adams, 133 Mass. 170 ; White v. Thomas, 8 Bush, 661 ; Overman's App., 88 Penn. St. 276, and other cases in the latter State. But these cases are contrary to the well-settled doctrine of the English courts which has been acquiesced in by the great weight of authority in this country. See Gray, Restr. on Alien., Pt. 2, C. 10 ESTATES UPON CONDITION. in fee, as where the grantee is not to convey it before a cer- tain time, or is not to convey it to certain persons named. ^ Thus, though a right to have partition is an incident to a tenancy in common, if shares of an estate be conveyed to sev- eral tenants in common, and it is for the interest of all that it should remain in common and undivided, and in the deeds creating these shares a condition is inserted that the estate should be suffered to remain in common, it is held to be a valid condition.^ So a condition in a deed that the grantee shall not use or suffer the premises to be used for the manufacture or sale of any intoxicating liquors thereon, was held to be a valid one.^ And a devise to A until he shall become bankrupt, with a devise over upon such a contingency, would be good.* § 945. Conditions in Restraint of Marriage. — An estate may be settled to the separate use of a feme covert, with a restric- tion as to conveyance during coverture. But such restriction would be at an end upon her becoming discovert.^ If the con- dition be in restraint of marriage, the rule seems to be this: If the condition be precedent, it must be strictly complied with in order to entitle the party to the benefit of the devise. But if the condition in restraint of marriage be subsequent and general in its character and applied to an unmarried per- son, it is treated as a mere nullity, and the estate becomes absolute.^ But if the condition be an absolute restraint of marriage until the devisee is twenty-one years of age, or dur- ing the widowhood of the testator's widow, it is a reasonable and therefore good condition, though subsequent, and, if vio- lated, will defeat the estate. '^ 1 Attwater v. Attwater, 18 Beav. 330 ; overruling Doe v. Pearson, 6 East, 173, which held that the condition might restrict the grantee as to all persons except one. Tud. Cas. 794 ; Co. Lit. 223 a. See Anderson v. Gary, 36 Ohio St. 56. 2 Hunt V. Wright, 47 N. H. 396. 8 Plumb V. Tubbs, 41 N. Y. 442. * Lockyer v. Savage, 2 Str. 947. 6 Tud. Cas. 805. « Story, Eq. §§ 288, 289 ; Bertie v. Falkland, Freem. 220 ; Morley v. Rennold- son, 2 Hare, 570 ; Lloyd v. Lloyd, 2 Sim. n. s. 255, where a similar condition on a gift to a widow was held good. See also Bellairs v. Bellairs, L. R. 18 Eq. 510 ; Williams v. Cowden, 13 Mo. 211 ; Randall v. Marble, 69 Me. 310. 7 Shackelford v. Hall, 19 111. 212; Gough v. Manning, 26 Md. 347 ; Common- ESTATES UPON CONDITION. 11 § 946. Unlawful and Impossible Conditions Precedent. — If the condition is precedent, inasmuch as the estate does not vest at all until such condition happens, the effect of its be- ing unlawful or impossible is that the estate dependent on it fails, and the grant or devise becomes wholly void.^ And where a condition precedent consists of several parts united by copulative conjunction, each part must be performed be- fore the estate can vest,^ § 947. Illustrations. — Where there was a devise of lands to A and B, after the death of the testator's wife, if they should continue to live with her and be bound to her as servants until they were married, and the wife was unable to receive and take charge of them, and left the State without taking them with her, and died in another State, it was held, that as the provision was for the testator's wife, and as she by her act prevented the performance of the condition, it became an impossible one, and the devisees took the estate. Here the court must have regarded this condition as a subsequent one, which was to defeat, and not to create, an estate. ^ So where a devise to A B was upon condition that he took the name wealth V. Stauffer, 10 Penn. St. 350 ; Coppage v. Alexander, 2 B. Mon. 313 ; Newton v. Marsden, 2 Johns. & H. 356 ; Allen v. Jackson, 1 Ch. D. 399 ; Bostick V. Blades, 59 Md. 231. In some early cases it was held that there should be a valid gift over. Binnerman v. Weaver, 8 Md. 517 ; Parsons r. Winslow, 6 JIass. 169. But this has not been held essential in more recent decisions. Clark r. Tennyson, 33 Md. 85. Cises supra. Where the first gift is only "so long as," " during," or " while " the person remains unmarried, it is held valid as a limita- tion and not a condition, and a gift over in event of marriage is good. Waters V. Tazewell, 9 Md. 291 ; Arthur v. Cole, 56 Md. 100 ; Evans v. Eosser, 2 Hem, & M. 190 ; Harmon v. Brown, 58 Ind. 207 ; Heath v. Lewis, 3 De G. M. & G. 954 ; Grace v. Webb, 2 Phill. 701 ; Mansfield v. Mansfield, 75 Me. 509 ; Sims v. Gray, 109 Ind. 501 ; s. c. 9 N. E. Rep. 120. Where there is no valid gift over after ■ a gift to an unmarried person, a mere forfeiture upon marriage is void. Randall v. Marble, 69 Me. 310; Crawford v. Thompson, 91 Ind. 266. But if there is a valid gift over, and the whole devise indicates that provision and not mere restraint was intended, a devise over upon marriage of one never before married is good. Jones V. Jones, 1 Q. B. D. 279. 1 Co. Lit. 206 ; id. 218 a ; Vanhorne v. Dorranoe, 2 Ball. 304, 317 ; Taylor v. Mason, 9 Wheat. 325 ; Mizell v. Burnett, 4 Jones (N, C.) 249 ; Martin v. Ballou, 13 Barb. 119 ; Bertie v. Falkland, 2 Freem. 222. 2 Harvy v. Aston, Com. Rep. 731-733 ; .s. c. 1 Atk. 374. 3 Jones V. Doe, 1 Scam. 276. See United States v. Arredondo, 6 Pet. 691,745 ; Whitney v. Spencer, 4 Cow. 39 ; Merrill v. Emery, 10 Pick. 507 ; Jones v. Walker, 13 B. Mon. 163 ; Barksdale v. Elam, 30 Miss. 694. 12 ESTATES UPON CONDITION. of the devisor, and took a certain prescribed oath, this was held to be a condition subsequent.^ §948. Devise — Time for Performance. — If an estate is de- vised upon condition, and no time is limited in which it is to be performed, the devisee has the term of his life in which to perform it. Again, if the devise be in words in the present tense and no contrary interest appears, it imports an imme- diate interest, which vests in the devisee, upon the death of the testator, if no intermediate disposition is made of the estate. And a condition in such case, attached to a devise which may be performed at any time as well after as before vesting, will be regarded as a condition subsequent.^ § 949. Conveyance — Time for Performance. — But in a case of a conveyance upon condition, where a prompt performance thereof is necessary to give to the grantor, or the one who is to avail himself of the same, the whole benefit contemplated to be secured to him, or where its immediate fruition formed his motive for entering into the agreement, the grantee shall not have his lifetime for its performance, but must do it in a reasonable time.^ And this doctrine of a reasonable time for performance has been applied in a variety of cases, as where, for instance, an estate was conveyed on condition that the grantee removed a mortgage outstanding upon it, but no time was fixed in which it was to be done, it was held that the condition must be complied with in a reasonable time.* In a case where the grant was of a strip of land by A to a rail- road company, on condition that the road was finished by such a day, it was held that a present estate passed, and that the condition was a subsequent one.^ And where, as in the case above cited, a devise of a lot of land was made to a town upon condition that they erected a schoolhouse in a certain place, it was held that it must be done in a convenient time, or the estate would be forfeited.^ 1 Taylor u. Mason, 9 Wlieat. 325 ; Marwick v. Andrews, 25 Me. 525 ; Horsey v. Horsey, 4 Harringt. 517 ; Webster v. Cooper, 14 How. 88. 2 Finlay v. King, 3 Pet. 346 ; Co. Lit. 208 b, 209 a. 8 Hamilton v. Elliott, 5 S. & R. 375; Co. Lit. 208 h; Hayden v. Stoughton, 5 Pick. 528. * Ross V. Tremain, 2 Met. 495. See Stnyvesant v. The Mayor, 11 Paige, 414. 6 Kicoll V. N. Y. & E. R. R., 12 N. Y. 121. 6 Hayden v. Stoughton, 5 Pick. 528 ; Allen v. Howe, 105 Mass. 241. ESTATES UPON CONDITION. 13 § 950. Implied Conditions. — A condition in law, OF one that is implied, as distinguished from an express condition, is such as is always annexed to certain estates, although not mentioned in the instruments creating them. Such, for in- stance, was the condition at common law annexed to every estate for life or years, that the tenant should not attempt to create a greater estate than his own; so that if such tenant enfeoffed a stranger in fee, it was a ground of forfeiture.^ § 951. Who may enforce, who perform. — A condition, how- ever, defeats the estate to which it is annexed only at the election of him who has a right to enforce it. Notwithstand- ing its breach, the estate, if a freehold, can only be defeated by an entry made, and, until that is done, it loses none of its original qualities or incidents.^ And any one who is inter- ested in a condition, or in the estate to which it is attached, may perform it; and when it has once been performed, it is thenceforth gone forever.^ And if a person in whose favor a condition is created once dispense with it, he cannot after- wards enter for a subsequent breach of the condition.* If a condition be in the alternative, the one who is to perform it may elect which to perform. But when such election is made, it fixes the rights of the parties.^ But in respect to enforcing a condition it is often otherwise. § 952. Illustrations. — Thus, where A conveyed parcels of land to sundry persons at different times, but inserted in the deed of each a similar condition against the use of certain trades, it was held that, though for a breach by one, no other grantee could have an action at law against him to enforce the condition, equity would enforce a performance of it.^ So 1 Co. Lit. 215 a; 2 Bl. Com. 153. 2 1 Prest. Est. 48 ; Clialker v. Chalker, 1 Conn. 79; Canal Co. v. R. R. Co., 4 Gill & J. 1, 121 ; Phelps v. Chesson, 12 Ired. 194 ; Willard i;. Henry, 2 N. H. 120; Winu v. Cole, Walker, 119 ; King's Chapel v. Pelharn, 9 Mass. 501 ; Lud- low V. N. Y. & H. R. R., 12 Barb. 440 ; Tallman v. Snow, 35 Me. 342 ; Webster V. Cooper, 14 How. 488, 501 ; Warner v. Bennett, 31 Conn. 477, citing the text; Hubbard v. Hubbard, 97 Mass. 188 ; Little Falls Water Power Co. v. Mahan, 69 Minn. 253 ; s. C. 72 N. W. Rep. 69. 3 Vermont v. Society, etc., 2 Paine, C. C. 545; 2 Crabb, Real Prop. 815. * Dickey v. M'CulIough, 2 W. & S. 188 ; Dumpor's Case, 4 Rep. 119 ; ante, § 650. 5 Bryant v. Erskine, 55 Me. 153. 6 Barrow v. Richard, 8 Paige, 351. See Collins Mg. Co. v. Marcy, 25 Conn. 14 ESTATES UPON CONDITION. where A purchased lands, but had the deed made to B, and B sold the same to a third party, and inserted in his deed a forfeiture of the estate if the purchaser erected anything on the granted premises which would obstruct the view from A's house, it was held to create an equitable easement of prospect constituting a condition, upon a breach of which B might enter and defeat the estate, or A might have an injunction in his own name to prevent any such erection.^ § 953. Entry for Condition broken. — By the common law, the only mode of taking advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate was by an entry, upon the principle that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the effect was to reduce the estate to the same plight and to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted. 2 But where a life estate was devised upon condition that the devisee pay a certain annuity, with a limitation over after the death of the devisee for life, and the latter failed to perform, and died leaving a large sum in arrear and unpaid, it was held too late for the heirs of the testator to take advan- tage of the breach by making an entry, after the estate had passed by limitation into the hands of the remainder-man.^ § 954. Who may enter for Condition broken. — With respect to the parties entitled to exercise this right to enter and defeat the estate of him who holds upon condition, there seems to be a difference between conditions in law and in deed. If there be a breach of the conditions in law, the lessor or his heirs, or, if he have aliened his estate, his assignee, may avail himself of the right to enter.* But of conditions in deed no one but 242 ; Parker v. Nightingale, 6 Allen, 341. The numerous class of cases in which conditions and stipulations in each of several parcel conveyances of a single lot are held to be restrictions in the nature of equitable easements binding and enuring to the several grantees in equity, will be more fully considered under the head of Easements. See post, § 1242. 1 Gibert v. Peteler, 38 N. Y. 165. 2 1 Prest. Est. 48, 50 ; 2 Flint. Real Prop. 231 ; 1 Prest. Est. 46 ; Co. Lit. 201 a, n. 84 ; Walker, Am. Law, 207 ; Sheppard, Touch, fol. ed. 494 ; Co. Lit. 218 a ; Sperry v. Sperry, 8 N. H. 477 ; McKelway v. Seymour, 29 N. J. 321, 329 ; Com. Dig. 0. 6. 8 Williams v. Angell, 7 R. L 145. < Co. Lit. 214 ; Sheppard, Touch, (fol. ed.), 541 ; 2 Crabb, Real Prop. 835. ESTATES UPON CONDITION. 15 he who creates the estate or his heirs, as, for instance, the heirs of a devisor, or, in case of a devise of the contingent right, such devisee or his heirs, can take advantage by enter- ing and defeating the estate. It is a right which cannot be aliened or assigned, or pass by a grant of the reversion at common law.^ As an example of the indestructibility of a condition when once attached to an estate, A conveyed land upon condition expressed in the deed. The purchaser gave a note for the purchase-money secured by a mortgage of the premises. The mortgagee sold the note and mortgage, and assigned the same to a third party. The condition in the deed having been broken, the original grantor entered to defeat the estate, and it was held that he might do so, and that the assignee of the mortgage took it, subject to the origi- nal condition, and liable to be defeated by a breach thereof committed or suffered by the mortgagor. ^ Nor can the bene- fit of a condition in a grant be reserved to any one but the grantor and his heirs ; a stranger cannot take advantage of it.^ And yet this proposition, though generally laid down in broad terms, requires certain limitations. In case of leases, the statute 32 Hen. VIII. c. 34, extends to assignees or grantees of the reversion the same rights of entry for condition broken as the grantor himself had.^ And if the condition be attached to a particular estate, and the reversioner grant away his re- version, the condition is gone forever. He could not enforce it himself, because he had parted with all his right; nor could his assignee, because the right was not assignable.^ And, because such right is not assignable, it is universally •s. ^ Lit. § 347 ; Co. Lit. 214 a, where the reason given is the avoidance of main- tenance. Gray v. Blanchard, 8 Pick. 284. See Throp v. Johnson, 3 Ind. 343 ; Hooper v. Cammings, 45 Me. 3.59 ; 1 Smith's Lead. Cas. (.5th Amer. ed.) 114 ; Winn V. Cole, Walker, 119; Cross v. Carson, 8 Blackf. 138; Van Rensselaer v. Ball, 19 N. Y. 100; Lit. § 247; Gibert v. Peterler, 38 N. Y. 165; Guild v. Richards, 16 Gray, 309. 2 Merrill v. Harris, 102 Mass. 326. 3 Fonda V. Sage, 46 Barb. 109, 122; Shep. Touch. 120. And this extends to cases of grants upon condition by the government. Schulenberg v. Harriman, 21 Wall. 44. * NicoU V. N. Y. & Erie R. R., 12 N. Y. 121, 131 ; Van Rensselaer v. Ball, 19 N. Y. 100, 104; ante, § 653. 6 Hooper v. Cummings, 45 Me. 359. 16 ESTATES UPON CONDITION. true that a stranger cannot take advantage of a condition. ^ Such right is not a reversion, nor a possibility of a reversion, nor is it an estate in land ; it is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the con- dition, and not by reverter. ^ Yet by a law of Pennsylvania, it is something which may be assigned, and would pass under a sheriff's sale, and may be availed of by an assignee of the grantor. 3 § 955. Right of Grantor's Devisee to enter. — The law is not uniform as to how far a devisee of one who has granted an estate upon condition may exercise the right of defeating it by entry for a breach of the condition. In New Jersey, it has been held that by the common law heirs only, and not de- visees of such grantor, or, if the grantor be a body politic, their successors only, could take advantage of the breach ; neither grantees of the reversion nor remainder-men could do it, though now, by statute, devisees may there exercise the right.* Whereas, in Massachusetts, the devisee of such grantor, or the residuary devisee or his heir, where the con- ditional estate is created by devise in the same will, is held competent to enter and defeat the estate for condition broken, like an heir at common law.^ But if the devise be to one or more heirs of an estate upon condition, without any such residuary clause, it would be for the other heirs of the devisor 1 NicoU V. N. Y. & Erie R. R., 12 Barb. 460 ; Forris v. Milner, 20 Ga. 563 ; Smith V. Braniian, 13 Cal. 107 ; Warner v. Bennett, 31 Conn. 468, 478. •^ De Peyster v. Michael, 6 N. Y. 467 ; Nicoll v. N. Y. & Erie R. R., 12 N. Y. 121. 3 McKissick v. Pickle, 16 Penn. St. 140. * Southard v. Cent. R. R., 26 N. J. 1, 21 ; Cornelius v. Ivins, id. 386. 6 Hayden v. Stoughton, 5 Pick. 528 ; Clapp v. Stoughton, 10 Pick. 463 ; Brig- ham I'. Shattuck, 10 Pick. 306, 309 ; Austin v. Cam bridge port Parish, 21 Pick. 215, 224. See also Webster v. Cooper, 14 How. 488. See, upon those points, Shep. Touch. 149 ; Nicoll v. N. Y. & Erie R. R., 12 N. Y. 121, 131 ; s. c. 12 Barb. 460 ; Jones v. Roe, 8 T. R. 88 ; Chauncy v. Graydon, 2 Atk. 616, 623. The Alassachusetts doctrine, that a devisee may enter for breach of condition to defeat an estate, was applied to the case of an assignee of a bankrupt grantor's estate. Stearns v. Harris, 8 Allen, 597. And it should be understood that this apparent departure from the principle of the common law in respect to conditional estates grows out of the construction of a clause in the statute of that State (Rev. Stat, c. 101, § 4), which it is too late to controvert, however questionable that con- struction may originally have been. ESTATES UPON CONDITION. 17 to enter for a breach of the condition. ^ Tlie rule in England, as settled in the case cited below, is this: A devisee cannot avail himself of a breach of condition created by his devisor. And if there be a devise on condition to the devisor's heir at law, and the same be broken, it defeats the estate on the ground of being a conditional limitation instead of a condi- tion at common law.^ But where A mortgaged land to B, conditioned to support B and pay a sum of money to C, and, A having died, the estate descended to B as his heir at law, it was held to extinguish the mortgage by the merger thereby effected. But B having conveyed the estate to a third person by deed, in which was a recital that, as a part of the consid- eration, the purchaser was to perform the condition contained in A's deed to B, it was held to create no lien upon the estate, but rendered the purchaser liable in assumpsit to C for the payment of the sum originally secured in the mortgage of A to B.3 § 956. Reserving Right of Entry. — Where the condition of a grant is express, there is no need of reserving a right of entry for a breach thereof, in order to enable the grantor to avail himself of it.^ Nor is it necessary to name the heir of the grantor, or to reserve to him such right of entry, in order to his exercising the same in case of a breach of the condi- tion.^ And where a grant on condition was made to one of several sons, and, after the death of the grantor, the condi- tion was broken, it was held that any one of these might enter and avoid the grant as to his own part of the estate.® § 957. When Actual Entry necessary to enforce Condition. — But nothing short of an actual entry will serve to defeat an estate upon a condition which has been broken.'' If several 1 Wheeler v. Walker, 2 Conn. 196. 2 Avelyn v. Ward, 1 Ves. Sen. 420. See also Henderson v. Hunter, 59 Peun. St. 335, 341. 3 Norris v. Laberee, 58 Me. 260. * Jackson v. Allen, 3 Cow. 220 ; Gray v. Blanchard, 8 Pick. 284 ; Lit. § 331 ; Osgood V. Abbott, 58 Me. 73, 79. s Jackson j;. Topping, 1 Wend. 388; Sheppard, Touch, (fol. ed.) 489, where it is said, " For an heir shall take advantage of a condition, though no estate de- scend to him from the ancestor." Osgood v. Abbott, supra. ® Jackson v. Topping, 1 Wend. 388 ; Bowen v. Bowon, 18 Conn. 535. '' Fonda v. Sage, 46 Barb. 109 ; Osgood y. Abbott, supra. VOL. II. — 2 18 ESTATES UPON CONDITION. parcels are conveyed, upon condition, by the same deed, or are embraced in the same mortgage and are all situate in the same county, an entry upon one in the name of the whole will be sufficient to enforce the condition as to all of the parcels. But if there be different deeds of the parcels, with different conditions therein, the entry must be made upon each.^ It cannot be done by action, for when the grantor conveyed his estate he parted with the seisin, which he can only regain by an entry made.^ If the grantor is himself in possession of the premises when the breach happens, the estate revests in him at once without any formal act on his part, and he will be presumed, after the breach, to hold, for the purpose of enforcing a forfeiture, unless he waive the breach, as it is competent for him to do, and as be may do by his acts.^ But to have possession, in such a state of things, work a forfeit- ure, it must be at the election of the grantor. He is at lib- erty to waive the breach, and thereby save the forfeiture.* Where the grantor covenanted to stand seised to his own use for life, and, after his death, to the use of his son in fee, but upon condition, and the son failed to perform the condition, it was held that the grantor being in possession need not make a formal entry, or make a formal claim of the land to defeat the estate of the son.^ § 958. Intention accompanying Entry. — The entry, to be effectual to work a forfeiture of an estate, must be made with an intention to produce that effect. And where an heir en- tered after a breach of condition, but declared the title under which he entered not to be that in favor of which the con- 1 Green v. Pettingill, 47 N. H. 375. 2 Sheppard, Touch, (fol. ed.) 496 : Co. Lit. 218 a; Chalker v. Chalkev, 1 Coim. 79; Lincoln Bk. v. Drummond, 5 Ma^ss. 321; Sperry v. Sperry, 8 N. H. 477; Austin V. Cambridgeport Parish, 21 Pick. 215. Except by the technical action of ejectment where an entry is confessed. In Massachusetts, entry in case of an action to recover land forfeited is dispensed with by statute. Pub. Stat. c. 173, § 3 ; Phelps v. Chesson, 12 Ired. 1^4 ; Ludlow v. N. Y. & Harl. E. R., 12 Barb. 440 ; Tallman v. Snow, 35 Me. 342 ; Stearns v. Harris, 8 Allen, 598 ; Austin v. Cambridgeport Parish, supra. 3 Willard V. Henry, 2 N. H. 120 ; Hamilton v. Elliott, 5 S. & R. 375 ; An- drews V. Senter, 32 Me. 394. * Hubbard v. Hubbard, 97 Mass. 188 ; Guild v. Richards, 16 Gray, 309 ; Rogers v. Snow, 118 Mass. 118, 123. ° Rollins V. Riley, 44 N. H. 1, 13. ESTATES UPON CONDITION. 19 dition was made, it was held not to avoid the estate of the grantee,^ though it is not necessary when making such entry to give notice to the feoffee why it is done.^ § 9o9. Conditions enforced regardless of Damage. — It is not necessary in order to advantage being taken of a breach of condition, that it should have caused any injury to the party who enters for that purpose. In a case already cited, the condition was that the grantee should not make a window in a certain part of the house conveyed, and before it was done the grantor had ceased to have any interest in the premises to be affected by its being opened,^ But it was held in one case, that where the grantor of an estate upon condition, before any breach, conveyed and assigned all his property, right, claim, and demand upon the estate to a stranger, it operated to discharge the condition, and render the estate absolute in the grantee upon condition, since, by such conveyance, the stranger could not acquire any right to enter for the breach of the condition.* Thus, where the grantor upon condition conveyed his real estate to his son, who was his heir-at-law, including within the description thereof the land which he had granted upon condition; the condition having been broken, the son as grantee or heir undertook to enter to de- feat the estate in the first grantee. But it was held that as grantee he could not exercise the right, and that his right as heir was cut off by his father's deed, so that nothing de- scended to him from his father.^ It is no valid objection to the enforcement of a forfeiture for condition broken, that the grantor may resort to an action of covenant broken for his remedy, or might enforce the performance of the condition 1 Bowen v. Bowen, 18 Conn. 535. 2 Hamilton v. Elliott, 5 S. & R. 375. 8 Gray v. Blanchard, 8 Pick. 284. * Uuderhill v. Sara. & W. R. R., 20 Barb. 455. See Sheppard, Touch, (fol. ed.) 601. In New York, where land is conveyed «in fee, reserving the payment of rent, with a clause of forfeiture of the granted premises if the same is not paid, the grantor may have ejectment to recover the premises without a previous de- mand, the common law, requiring such previous demand, having been changed by statute. ' Hosford v. Ballard, 39 N. Y. 147, 152 ; Cruger v. McLaury, 41 N. Y. 219. 5 Shep. Touch. 158 ; 5 Vin. Abr. Condition, 5 D. 11 ; Perkins, §§ 830-833 ; Rice V. Boston & W. R. R., 12 Allen, 141 ; Hooper v. Cummings, 45 Me. 359. 20 ESTATES UPON CONDITION. by a process in equity. If he have alternative remedies, the court will not compel him to elect one instead of the other. ^ § 960. Where Breach of Condition excused. — As a condi- tion subsequent may be excused, when its performance be- comes impossible by the act of God,^ or by the act of the party for whose benefit it is created, ^ or is prohibited or pre- vented by act of the law,* so it may be waived by the one who has a right to enforce it. In the former case the condition is discharged altogether, and the estate made absolute; in the latter the estate is relieved from the consequence of a breach thereof. But among the circumstances which might excuse performance, the fact that one who is to do the act is a minor at the time is not a sufficient cause, since that does not ren- der the performance impossible or unlawful.^ But where the devise was upon condition that the devisee should pay certain legacies, and one of the legatees was absent and did not re- turn to demand the legacy, it was held, that a neglect to pay such legacy was not a breach of the condition; performance was excused until the devisee demanded payment.* § 961. "Waiver. — A forfeiture may be saved though a con- dition may have been broken, if the party who has the right to avail himself of the same waives this right, which he may do by acts as well as by an express agreement. Thus, where the condition of a lease was that the lessee should not assign, and having done so the lessor accepted rent from the assignee, or where the condition was that the grantee should pay an annuity by such a time, which he failed to do, but subsequent to that time the grantor accepted it.'^ So where the lessor reserved the right to enter and dispossess tlie tenant if he failed to pay the rent at a certain time, but upon failure to ^ Stuyvesant v. The Mayor, 11 Paige, 414. 2 Sheppard, Touch. 498, fol. ed. ; Merrill r. Emery, 10 Pick. 507 ; Walker, Am. Law, 298 ; Parker v. Parker, 123 Mass. 584. 3 Co. Lit. 206 ; Com. Dig. Condition, L. 6 ; 11 Am. Jur. 42. * Brewster v. Kitchell, 1 Salk. 1 98 ; Anglesea v. Church Wardens, 6 Q. B. 107, 114. a Cross v. Carson, 8 Blackf. 138 ; Garrett v. Scouten, 3 Denio, 334, 340. 6 Bradstreet v. Clark, 21 Pick. 389. 7 Chalker v. Chalker, 1 Conn. 79 ; Walker, Am. Law, 299 ; Jackson v. Crys- ler, 1 Johns. Cas. 125 ; Hubbard v. Hubbard, 97 Mass. 188 ; Goodright v. Davids, Cowp. 803. ESTATES UPON CONDITION. 21 make such payment the lessor sued for and rccoTcrcd the same, or voluntarily accepted rent after such failure to pay.^ The conduct of the lessor or grantor in such and similar cases is regarded as evidence of his agreement and consent, and as affirming that the estate still continues, notwithstanding the breach of the condition.*'^ And where a forfeiture has been waived, a court of law will not aid in enforcing it.^ § 962. Waiver, continued. — But a mere silent acquiescence in, or parol assent to, an act which has constituted a breach of an express condition in a deed, would not amount to a waiver of a right of forfeiture for such breach.* Where, how- ever, a grant to a railroad company of land was upon condi- tion that the road should be completed by a certain time, which was not done, and after that, the grantor, knowing the fact, suffered the company to go on and incur expenses in constructing their road, and made no objection, it was held to be a waiver of the condition and forfeiture.^ And it is laid down as a general principle that a condition which, if taken advantage of, destroys the whole estate, if once dis- pensed with, in whole or in part, is gone forever, for a condi- tion being an entire thing cannot be apportioned except by act of law. Thus, where a grant was made to a company on condition that they should erect a bloomery on the estate by such a time, and the grantor afterwards waived that, and gave them permission to erect a blast furnace in its stead, and extended the time for its erection, it was held that a failure to erect the furnace within the extended time was not a ground of forfeiture. The condition was gone, and the terms of the grant did not create a covenant.^ » Coon V. Brickett, 2 N. H. 163. 2 Sheppard, Touch, (fol. ed.) 499, 500; Co. Lit. 211 5 ; 3 Salk. 3. But in respect to the receipt of rent being a waiver of a forfeiture for non-payment at the time it was due, there is a difference of opinion. Sutherland, J., in Jackson v. Allen, 3 Cow. 220, held it must be rent accruing due after the breach to constitute a waiver. See also 2 Crabb, Real Prop. 840. And this seems the better doctrine. Hunter v. Osterhoudt, 11 Barb. 33 ; 3 Salk. 3 ; ante, § 664. 8 Guild V. Richards, 16 Gray, 309; Andrews v. Senter, 32 Me. 394, 397. * Gray v. Blanchard, 8 Pick. 284 ; Jackson v. Crysler, 1 Johns. Cas. 125. 6 Ludlow V. N. Y. & Harl. R. R., 12 Barb. 440. '^ V 6 Sharon Iron Co. v. Erie, 41 Penn. St. 341 ; Williams v. Dakin, 32' Wend. 201, 209. 22 ESTATES UPON CONDITION. § 9G3. Equitable Relief against Forfeiture. — Sometimes equity will relieve against the consequences of a breach of a condi- tion, and save the estate from forfeiture. But equity never lends itself to enforce a forfeiture. ^ The proposition, it will he perceived, relates to cases where the estate has vested, and is in danger of being defeated by a failure to perform a con- dition subsequent. 2 And the only cases where equity inter- poses as to such conditions are, where the failure to perform has been the effect of accident, and the injury is capable of compensation in damages which the court have the means of measuring, and where the grantor can be made perfectly se- cure and indemnified, and can be placed in the same situa- tion as if the occurrence had not happened. This applies to cases where the condition is for the payment of money at a particular time, and compensation for the delay can be meas- ured by the interest during that time.^ But where the condi- tion is for the performance of a collateral act, the rule is different, as the court have no standard by which to measure the damages.'^ Among the cases illustrating these proposi- tions is one where the grantor granted his estate upon con- dition that the grantee should pay and discharge a certain mortgage debt with interest, which he failed to do, and the grantor himself paid it, and entered upon the land for condi- tion broken without notice, in order to enforce a forfeiture. He then sued for possession of the estate, and the court ordered a stay of proceedings in order to permit the tenant to pay the amount due with interest, and thereby save his estate from forfeiture, there having been no wilful delay. ^ And it 1 Warner v. Bennett, 31 Conn. 478. 2 City Bk. V. Smith, 3 Gill & J. 265. But qucere as to conditions precedent, 2 Greeni. Cruise, 30 ; Haywnrd v. Angell, 1 Vern. 222. 3 Williams V. Angell, 7 R. I. 145, 152. * Laussat, Fonbl. Eq. 286, 287, n. ; Livingston v. Tompkins, 4 Johns. Ch. 415, 431 ; Skinner i;. Dayton, 2 Johns. Ch. 526 ; Bacon v. Huntington, 14 Conn. 92 ; City Bk. v. Smith, 3 Gill & J. 265; Storj', Eq. Jur. §§ 1321-1324 ; Hill v. Barclay, 18 Ves. 56 ; Henry v. Tapper, 29 Vt. 358, 372. 5 Sanborn v. Woodman, 5 Cush. 36 : Stone v. Ellis, 9 Cash. 95. This principle is further illustrated by the case of Hancock v. Carlton, 6 Gray, 39, where the defendant conveyed to one Clark an estate by deed, in which a condition was in- serted, that the grantee should save the grantor harmless from the payment of cer- tain recited debts, which were secured by mortgages upon the granted premises. Clark, at the same time, gave the defendant a mortgage of the premises to secure ESTATES UPON CONDITION. 23 has become a familiar principle, both at law and in equity, that if the lessor sues to recover premises for a forfeiture by non-payment of rent, the proceedings will be stayed if the lessee will pay the rent in arrear and damagcs.i § 964. Breaches against which Equity will not relieve. — But if the act be wilfully done, or be one for which the court have no certain rule by which to measure the damages beyond their own arbitrary judgment in the matter, equity will not relieve. ^ And among the acts which, as breaches of condition, courts have refused to relieve against, are aliening or assigning a term ^ or a condition to repair or to lay out a certain sum of money in repairs on the premises,* or neglecting to insure the premises,^ or suffering third parties to use a way across leased premises,*" and the like. § 965. Equitable Relief — Recapitulation. — As a general proposition, therefore, courts will not interfere to relieve tenants of estates against the consequences of a breach of a condition affecting them at common law, except where the condition consists in the payment of money, which forms, as the payment of the purchase-money over and above the aforesaid mortgages, and then made a second mortgage to the plaintiff. Both plaintiff and Clark having failed to pay the mortgages and save defendant harmless, he entered upon the premises for a breach of condition at common law, as having been thereby forfeited and become irredeemable. The plaintiff brought a bill in equity to redeem, and the court held that, as the condition was to secure the payment of a certain debt, it might be treated in equity as a penalty, and be relievable accordingly, upon evi- dence that it was occasioned by accident, mistake, fraud, or sur{)rise, where there had been no laches on the part of the one who was to perform. But inasmuch as, upon a hearing, the court found the party guilty of laches, the prayer of the plain- tiff was denied. See Story, Eq. §§ 1321-1323. 1 Atkins V. Chilson, 11 Met. 112; 2 Greenl. Cruise, 31 ; Pliillips v. Doelittle, 8 Mod. 345 ; Goodtitle v. Holdfast, 2 Stra. 900 ; Hill v. Barclay, 18 Yes. 56. 2 Descarlett V. Dennett, 9 Mod. 22; AVafer v. .Mocato, id. 112; Northcote v. Duke, 2 Eden, 322, n. In Elliott v. Turner, 13 Simons, Ch. 485, it is held that loilfid in such a case is the same as a voluntary act of the party. Courts will not relieve except when the damages are certain. Reynolds ik Pitt, 2 Price, 212, n. ; Hill V. Barclay, 18 Ves. 56 ; Henry v. Tupper, 29 Vt. 358. 3 Wafer v. Mocato, 9 Mod. 112 ; Hill v. Barclay, 18 Ves. 56. * Hill V. Barclay, 18 Ves. 56 ; Bracebridge v. Buckley, 2 Price, 200. 5 Reynolds v. Pitt, 2 Price, 212, n. ; Rolfe v. Harri.s id. 206, n. 6 Descarlett v. Dennett, 9 Jlod. 22. The power of a court of equity to enforce a restriction or equitable easement, whether framed as a condition or not, in favor of the beneficiary thereof has already been adverted to, ante, § 951, and will be more fully considered, ^os<, § 1241. 24 ESTATES UPON CONDITION. will hereafter appear, a most marked distinction between estates technically upon condition and that class of condi- tional estates known as mortgages. § 966. Condition not affected by Change cf Ownership. — The circumstance of an estate being subject to a condition does not affect its capacity of being aliened, devised, or of descend- ing, in the same manner as an indefeasible one, the purchaser or whoever takes the estate by devise or descent taking it sub- ject to whatever condition is annexed to it.^ § 967. Quantity of Estate not affected by Condition. — Nor does the existence of such condition change the freehold or chattel character of the estate to which it is annexed. Thus, though an estate for an uncertain period, which may continue for life, is a freehold, an estate to A B for ninety-nine years, provided he live so long, is still a term for years, though its duration may be measured by the length of a life. And on the other hand, an estate to A B for life, or in fee, will be a freehold, though there is annexed to it a condition which may, if it happen, terminate it in a year or any other definite period of time.^ § 968. Reversionary Nature of Right to re-enter. — From what has been said, it must be plain that the right which a condi- tional grantor of an estate has to regain the estate upon the breach of the condition is a present vested interest of the nature of a reversion, which he may, at any time, convey to his grantee upon condition, by release, or may devise it, and it is transmissible to his heirs. § 969. Perpetuities. — Nor is the right to re-enter for con- dition broken subject to any objection on the ground of its coming within the limit of a perpetuity which the law does not allow, although it may not take effect by the event which is to defeat the estate to which the condition is annexed, within the period of time, beyond which an estate may not be originally limited to take effect.^ 1 Taylor v. Sutton, 15 Ga. 103 ; Underhill v. Sara. & W. E. R.,20 Barb. 455 ; Wilson V. Wilson, 38 Me. 18. 2 2 Flint. Real Prop. 232 ; Ludlow v. N. Y. & Harl. R. R., 12 Barb. 440 ; Co. Lit. 42 a. 8 Brattle S>[. Ch. v. Grant, 3 Gray, 142 ; Tobey v. Moore, 130 Mass. 448 ; Cowell V. Springs Co., 100 U. S. 55. ESTATES UPON CONDITION. 25 § 970. Conditions and Conditional Limitations differentiated. — In this and many other respects, an estate upon condition, properly speaking, differs from what is known as a condi- tional limitation. In either case, the estate is a conditional one. But in the one, though the event happen upon which the estate may be defeated, it requires some act to be done, such as making an entry, in order to effect this. In the other, the happening of the event is, in itself, the limit be- yond which the estate no longer exists, but is determined by the operation of the law, without requiring any act to be done by any onc.^ In case of a condition at common law, the grantor or his heirs alone can defeat the estate by entry for condition broken. In a conditional limitation, the estate de- termines, ipso facto, upon the happening of the event, and goes over at once to the grantor by reverter, or to the person to whom it is limited upon the happening of such contingency. ^ So if the breach of a condition be relieved against in chan- cery, or excused by becoming impossible by the act of God, the estate to which it is annexed remains unimpaired, whereas a limitation determines an estate from whatever cause it arises.^ This distinction may be illustrated by a familiar example. A grant to A B, provided she continues unmar- ried, is an estate upon condition ; and if she marries, nobody can take advantage of it to defeat the estate but the grantor or his heirs. But a grant to A B, so long as she continues unmarried, is a limitation. The moment she marries, the time for which the estate was to be held has expired, and the estate is not technically defeated, but determined.* So the grant of an estate until a certain event happens is a limi- tation^ and good at the common law, and upon it a remainder may be limited, provided the first estate limited were not in terms a fee absolute or determinable.^ And sometimes, where 1 1 Prest. Est. 456 ; id. 54 ; 2 Flint. Real Prop. 230-232 ; Brattle Sq. Ch. v. Grant, 3 Gray, 142 ; 2 Bl. Com. 155 ; 11 Am. Jur. 42 ; 2 Cruise, Dig. 37; Port- ington's Case, 10 Rep. 42 ; Co. Lit. 214 b ; Miller v. Levi, 44 N. Y. 489 ; Hender- son V. Hunter, 59 Penn. St. 335, 340. 2 Att'j'-Gen. v. Merrimack Co., 14 Gray, 586, 612, 8 11 Am. Jur. 43. * 2 Flint. Real Prop. 230 ; Portington's Case, 10 Rep. 42 ; 1 Prest. Est. 49. 5 1 Prest. Est. 54 ; Fearne, Rem. 13 and n. See i^os^ § 1535. 26 ESTATES UPON CONDITION. the estate is, in terms, an estate upon condition, it is con- strued into a conditional limitation, where it is necessary to carry out the purposes and intent of the grant. Thus a de- vise to one's own heir, on condition that he pays a sum of money, and, for non-payment, a devise over to a third person, is held to be a limitation, because, if construed to be a condi- tion, no one could enter for the breach and avoid the estate but the heir himself.^ And the same rule applies wherever there is a limitation over to a third party upon the failure of the first taker to perform the condition, as if an estate be granted by A to B, upon condition that B marry C within two years, and on failure, then to D and his heirs. This would be a limitation. And the estate in both the above cases passes to the second party without any act done in order to put an end to the estate of the first taker. Whereas^ if it was technically an estate upon condition, it would require an entry to be made by the grantor in order to defeat it, and he might refuse to make it.^ § 971. Conditional Limitation, ho-w expressed. — The ordi- nary technical words by which a limitation is expressed, as given in the elementary writers, relate to time. Such are durante, dum, donee, quousque, usque, tamdiu, and the like.^ But it is apprehended that the mere use of any of these terms, ordinarily expressive of a condition or a limitation, would be an unsafe test of the true nature of the estate. The word proviso or "provided," itself, may sometimes be taken as a condition, sometimes as a limitation, and sometimes as a covenant.* Where A made a lease for the term of four years, with a proviso that if he sold the estate and gave the lessee sixty days' notice, he might terminate the lease, it was held to be a limitation, and not a condition, and the estate was 1 Wellock V. Hammond, Cro. Eliz. 204. 2 2 Flint. Real Prop. 231 ; 2 Bl. Com. 155; Brattle Sq. Ch. v. Grant, 3 Gray, 142 ; Fifty Assoc, v. Rowland, 11 Met. 99; Stearns v. Godfrey, 16 Me. 158, 160. 3 Co. Lit. 235 a ; Portington's Case, 10 Rep. 42; Henderson v. Hunter, 59 Penn. St. 335, 340. * Co. Lit. 203 b. See also Chapin v. Harris, 8 Allen, 59 1 ; Cromwel's Case, 2 Co. 72 a. But to create a covenant there must be some words also of promise u.sed; and if the words are only an express condition they will not be construed to make a covenant. Blanchard v. Detroit R. R., 31 Mich. 43. ESTATES UPON CONDITION. 27 determined by such sale and notice.^ "If" may be a word of limitation as well as of condition. A stranger may take ad- vantage of a limitation, but not of a condition.* The only general rule, perhaps, in determining whether words are words of condition or of limitation, is that, where they cir- cumscribe the continuance of the estate, and mark the period which is to determine it, they are words of limitation; Avhen they render the estate liable to be defeated, in case the event expressed should arise before the determination of the estate, they are words of condition.^ Thus a parol letting of prem- ises to another, so long as he keeps a good school, is a con- ditional limitation, and no notice or entry is necessary to determine it if the tenant fail to keep such a school.^ The distinction between condition and limitation is that the latter determines the estate of itself; the former, to have that effect, requires some act of election on the part of him or his heirs in whose favor the condition is created.^ "A condition re- spects the destruction and determination of an estate ; -a con- ditional limitation relates to the commencement of a new one. A condition brings the estate back to the grantor or his heirs; a conditional limitation carries it over to a stranger. " ^ § 972. No Remainder after a Fee-simple. — As a fee-simple is the largest estate possible, the grantor of a fee-simple has nothing further to grant; therefore, there can be no remainder after a fee-simple, nor can that estate be a remainder which, instead of coming in and taking effect at the natural expira- tion of a prior estate, rises up and cuts it short before its regular determination. There was no way, therefore, at common law, by which an estate could be created to take effect in a stranger after a fee-simple, nor upon the defeat of a prior estate by the breach of a condition. It was not a re- mainder, nor, though the condition were broken, could the 1 Miller v. Levi, 44 N. Y. 489. 2 Owen V. Field, 102 Mass. 90, 105. 3 1 Prest. Est. 129. 4 Ashley v. Warner, 11 Gra)', 43. 5 Owen V. Field, 102 Mass. 90, 105 ; Shep. Touch. 125. 6 Watkins, Conv. 204. 28 ESTATES UPON CONDITION. grantee of the second estate do what was necessary in order to defeat the first so as to give effect to the second.^ § 973. Conditional Limitations and Perpetuities. — But under the rules applicable to estates by devise, and those taking their effect by the doctrine of uses, an estate might be created in favor, of A B and his heirs, which, upon the happening of some contingency, should determine by its own limitation, and go over to a third person and his heirs. In order, how- ever, to prevent locking up estates and rendering them in- alienable for an indefinite period of time, the courts adopted a rule against what are called perpetuities, by which, unless such second estate shall certainly vest within the period of one or more existing lives, and twenty-one years and a fraction afterwards, the limitation of it will be void ah initio. Now, to apply these principles to estates upon condition and condi- tional limitations, if A grants his estate to B and his heirs, to become void if the tenant of the land do some designated act, whatever right there is in respect to the estate, beyond what is granted to B, is reserved to A, and vested in him. He may devise it in some of the States, or it will pass to his heirs ; and however long it may be before, if at all, the event may happen, for which the estate granted may be defeated, there is always this vested interest in the heirs or devisees of the original grantor ready to be exercised. But if the dis- position of A's grant had been to B and his heirs till some contingent event should happen, and then to C and his heirs, or on condition that if some act should be done or omitted by B or his heirs, then to C and his heirs, this would be a con- ditional limitation, and as such might be good. And upon the happening of the event, or doing or omitting the act, the estate in B or his heirs would end, and that in C or his heirs take effect. But in the meantime the grantor has parted with his estate, and it would be impossible to tell in whom the ultimate right to the estate might vest, or whether it would ever vest at all, and therefore there could be no conveyance or mode of alienation by which an absolute title could pass 1 Brattle Sq. Ch. v. Grant, 3 Gray, 142 ; 1 Prest. Est. 50 ; id. 95 ; 3 Prest. Abst. 284 ; 4 Kent, Com. 128 ; Outland v. Bovven, 115 Ind. 150; s. c. 17 N. E. Rep. 281. ESTATES UPON CONDITION. 29 of the estate limited to C and his heirs. And if this event or act might not happen within the time prescribed by the rule against perpetuities, the limitation dependent upon it would be void.i 1 Brattle S^i- Ch. y. Grant, 3 Gray, 142, 148, 149; Soc. Tlieol. Ed. i;. Att'y Gen., 135 Mass. 285. 30 MORTGAGES. CHAPTER XLI. MORTGAGES — NATURE AND FORM OF MORTGAGES. § 974. Mortgages defined. 975. Common law mortgage. 976. Possession of premises under common law mortgage. 977. Equity of redemption, 978. Mortgages at law and in equity. 979. What may be mortgaged. 980. What constitutes a mortgage. 981. Indestructibility of equity of redemption. 982. Form of mortgage — Defeasance. 98-3. Existence of debt, how far necessary. 984. Mortgage valid without personal obligation. 98.5. Deed absolute on its face as a mortgage. 986. Deeds absolute on face as fraudulent conveyances. 987. The defeasance. 988. What agreements amount to defeasances creating mortgages. 989. Distinction between mortgage and right to repurchase. 990. ilortgage, or contract to reconvey ? — Test. 991. The test, continued. 992. Distinguishing indicia. 993. The question one of fact. 994. Parol evidence, when excluded. 995. The consideration as a test. 996. No defeasance to a stranger. 997. Secret defeasances and buna fide purchasers. 998. Once a mortgage always a mortgage. 999. Destruction of defeasance ; boim fide purchaser. 1000. Agreements limiting right to redeem. 1001. Priority of purchase money mortgages. 1002. Mortgages to secure support. § 974. Mortgages defined. — Mortgages are one form of lien upon real property to secure the performance of some obliga- tion, more commonly the payment of money. As ordinarily understood, a lien upon land does not imply an estate in it, but a mere right to have it, in some form, applied towards satisfying a claim upon it. The peculiarity of mortgages is that, while in some States they combine the character of lien and estate, in others they form a lien only upon the land.^ 1 Eyall V. RoUe, 1 Atk. 165. NATURE AND FORM OF MORTGAGES. 31 § 975. Common Law Mortgage. — A mortgage at Common law may be defined to be an estate created by a conveyance, absolute in its form, but intended to secure the performance of some act, such as the payment of money and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. It is, therefore, an estate defeasible by the performance of a condition subsequent.^ The act which is to defeat the estate must, in order to con- stitute a mortgage, be an act to be done by the grantor or his assigns.^ But a mere bond or agreement to convey land will not constitute a mortgage, unless given in the way of defeas- ance,'^ It does not, therefore, relate to the quantity of estate, but to its quality or circumstances which qualify the owner- ship and enjoyment of property. Though conditional in its character, it differs essentially from an estate upon condition at common law which was considered in a former chapter, both in its purposes and in many of its incidents. In respect to estates upon condition, the estate vests in the grantee, sub- ject to be defeated ; but until defeated by act of the grantor, the estate with the possession and the ordinary incidents of ownership are in the grantee. Whereas a mortgage only becomes effectually an estate in the grantee, called the mort- gagee, by the grantor or mortgagor failing to perform the condition.* § 976. Possession of Premises under Common Lavir Mort- gage. — The possession may be in the grantor or grantee, according to the terms of the deed, though ordinarily it is retained by the grantor. If there is no provision inserted in the deed as to possession, the mortgagee may enter and hold the estate until the condition is performed. But if the con- dition is performed according to its terms, the estate of the mortgagee is ipso facto defeated and at an end. Although, 1 Wms. Real Prop. 349 ; Erskine v. Townsend, 2 Mass. 493 ; Lund v. Lund, 1 N". H. 39 ; Mitchell v. Burnliani, 44 Me. 299 ; Wing v. Cooper, 37 Vt. 169. 2 Robinson v. Robinson, 9 Gray, 447 ; Gibson v. Eller, 13 Ind. 124 ; Lucas v. Hendrix, 92 Ind. 54 ; Knowlton v. Walker, 13 Wis. 264, 272. See post, § 989. 8 Dahl V. Pross, 6 Minn. 89 ; Drew v. Smith, 7 Minn. 301. * Fay V. Cheney, 14 Pick. 399 ; Brigham v. Winchester, 1 Met. 390 ; Wood v. Trask, 7 Wis. 566. 32 MORTGAGES. by the form of English conveyances, the mortgagee, in such a case, is bound to reconvey to the mortgagor.^ On the other hand, if the mortgagor failed to perform the required condi- tion, his estate was, by the common law, wholly defeated and gone,2 and the mortgagee thereupon held the same as absolute and irredeemable.^ § 977. Equity of Redemption. — In equity, however, the right to redeem is not lost until cut off by decree ; and this equitable right to redeem a mortgaged estate after it had, in view of the common law, been forfeited by a failure to per- form the condition of the mortgage, gave to mortgages a double aspect and a double nature, the one created by and known to the common law, the other created by and known only to equity, — this right of redeeming, after breach of the condition, being what is called a right in equity of redemp- tion, or, in shorter terms, an equity of redemption. § 978. Mortgages at Law and in Equity. — In law, the mort- gagee, as holding the freehold, may sue an action of ejectment ^ Coote, Mortg. 2; Wms. Real Prop. 349 ; id. 351, n. ; Erskine v. Townsend, 2 Mass. 493 ; Reading of Judge Trowbridge, 8 Mass. 551-554. 2 Lit. § 332. The nature of this estate is expressed by the etymology of its name, mort-gage, the French translation of the Latin vadium inortuum, that is, a dormant or dead pledge, in contrast with vadium vivum, an active or living one. They were both ordinarily securities for the payment of money. In the one there was no life or active effect in the way of creating the means of its redemption by producing rents, because, ordinarily, the mortgagor continued to hold possession and receive these. In the other, the mortgagee took possession and received the rents toward his debt, whereby the estate pledged worked out, as it were, its own redemption. Besides, in the one case, if the pledge is not redeemed, it is lost or dead as to the mortgagor ; whereas, in the other, the pledge always survives to the mortgagor when it shall have accou)plished its purposes. Co. Lit. 205 ; 2 Bl. Com. 157. There was besides these another class of pledges of land, called Welsh mortgages, where the mortgagee entered and occupied, and took the rents as a substitute for the interest upon the sum loaned, and held until the estate was redeemed by the mortgagor's paying the principal. The mortgagee could neither enforce the repayment of the debt nor the redemption of the estate, nor could he foreclose it. 1 Powell, Mortg. 373, n. ; Coote, Mortg. 4. But both the vivum vadium as above described, and the Welsh mortgage, have gone into disuse, leav- ing the security by way of pledge of real estate in the form of a mortgage in common and ordinary use. Coote, Mortg. 4, 5 ; 4 Kent, Com. 137. In Louisiana, the mortgage of land answers to the antichresis of the Roman law, the effect of which was, in most respects, like that of an active mortgage, or vivum vadium. Living- ston V. Story, 11 Pet. 351, 388. 3 Spence, Eq. Jur. 601, 602 ; Story, Eq. Jur. § 1004. NATURE AND FORM OF MORTGAGES. 33 and recover possession of the land against the mortgagor. He may devise his interest as real estate by will, or it will descend at common law to his heir. In equity the land is a pledge; the mortgagee holds this only as a security for a debt, and like the debt it is an interest of a personal nature, and if he dies the debt goes to his executor, who may receive the same, and oblige the heir to release to the mortgagor without 'being paid a farthing. ^ § 979. What may be mortgaged. — The interest of a mort- gagee may itself be mortgaged, even in thuse States where the rights of mortgagees cannot be enforced at common law by ejectment. The courts regard such a mortgage as some- thing more than an assignment of a chose in action. And when mortgaged, such interest will be the subject of redemp- tion or foreclosure, as the case may be, and, if sold for pur- poses of foreclosure, the surplus, if any, after satisfying the lien of the mortgagee upon the mortgage, will be refunded to the mortgagor. 2 And an arrangement between the original mortgagor and such assignee, or mortgagee of the mortgage, to discharge the original mortgage, to the injury of the assignor, the original mortgagee, was held void as to him; and he was held entitled to recover the balance of the origi- nal mortgage debt, deducting the amount for which he had mortgaged the mortgage.^ Nor would a foreclosure of the first mortgage by the assignee of it in mortgage affect the equities existing between the mortgagor of the mortgage and such assignee in respect to the debt between them, nor the equity of redeeming the mortgage thus mortgaged.* A man may make a valid mortgage of an estate for life or for years belonging to him, as collateral security, as he could of an 1 Wms. Real Prop. 353, 354. 2 Graydon v. Church, 7 Mich. 36, 59 ; Henry v. Davis, 7 Johns. Ch. 40 ; Coffin V. Loring, 9 Allen, 154 ; Johnson v. Blydenburgh, 31 N. Y. 427, 432. 8 Slee j;. Manhattan Co., 1 Paige, 48, 78 ; Hoyt v. Martense, 16 N. Y. 231 ; Cutts V. York Mfg. Co., 18 Me. 190, 201 ; Solomon v. Wilson, 1 Whart. 241. * Brown v. Tyler, 8 Gray, 135, 138 ; Montague v. B. & A. R. R., 124 Mass. 242, 245. But if after an entry to foreclose, efTectual as against the first mortgagor, the assignee remains in possession over twenty years without payment or redemp- tion by the assignor, the right of the latter to redeem is barred. Stevens v. Dedh. Inst. Sav., 129 Mass. 547. VOL. 11. — 3 34 MORTGAGES. estate or part of it which he owned in fee.^ If a lessee of land for a term of years erect a house upon the premises by permission of the owner in fee, and then mortgage the land and the house, it has the effect of a mortgage of realty, and it may be foreclosed against the mortgagor. If after such foreclosure another person remove the house without right, the mortgagee may maintain trespass qu. cl. freg. or an action on the case for the value of the house. ^ The owner or tenant of land may mortgage the crops or fruits yet to be grown upon it, or he may mortgage fixtures yet to be attached to the premises, to take effect when added. ^ If one is in pos- session of land under a contract to purchase, he may mort- gage the same, and his mortgagee may go on and complete the contract and take the title to himself. And the right to redeem from such a mortgage is the subject of foreclosure, whereby the mortgagee acquires the land subject to the ven- dor's lien for the purchase-money.^ So land held by right of pre-emption in California is the subject of mortgage, but not the right itself. And a mortgage of any land held under the government is good against the mortgagor.^ But a mortgage by husband and wife of the wife's interest as heir-at-law to her father's estate, while he is still alive, to secure the debt of the husband, is void, it being the mortgage of a mere possibility.^ § 980. "What constitutes a Mortgage. — Any conveyance of lands intended by the parties, at the time of making it, to be a security for the payment of money or the doing of some pre- scribed act, is a mortgage. Whenever there is, in fact, an advance of money to be returned within a specified time, upon the security of an absolute conveyance, the law converts it 1 Lanfair v. Lanfair, 18 Pick. 304. 2 Hagar v. Brainard, 44 Vt. 294. 3 Phila. W. & B. R. R. v. Woelpper, 64 Penn. St. 366. * Laughlin v. Rraley, 25 Kan. 147 ; Baker v. B. H. Col., 45 111. 264; Sinclair V. Armitage, 12 N. J. Eq. 174, where the agreement of purchase was b}' parol. Att'y Gen. v. Purmort, 5 Paige, 620, 626 ; Bull v. Sykes, 7 Wis. 449, where the contract of purchase was in writing. Holbrook v. Betton, 5 Fla. 99. So unas- signed dower may be mortgaged in equity. Strong v. Clem, 12 Ind. 37. 5 Whitney v. Buckman, 13 Cal. 536. See Wright v. Shumway, 2 Am. Law Reg. 20. 6 Bayler v. Commonwealth, 40 Penn. St. 37. NATURE AND FORM OP MORTGAGES. 35 into a mortgage whatever may be the form adopted, or what- ever may be the understanding of the parties. ^ There may be an equitable lien created in favor of one, upon the real estate of another, by express agreement, for the purpose of creating a charge upon the same, for securing the payment of money, although not in form a legal mortgage, and which can only be enforced in equity. Such an agreement raises a trust which binds the estate to which it relates, and all who take title thereto, with notice of such trust, can be com- pelled in equity to fulfil it.^ Whether a given transaction is a mortgage or not, and whether it is or is not valid, is a matter of lex rei sitce, although the parties live elsewhere, and it is to be construed by the same law.^ But without stopping to inquire what the requisite proof of such intention must be, wherever it is legally proved that a conveyance was made for the purposes of security, equity regards and treats it as a mortgage, and of course attaches to it the incidents of a mortgage.* And a mortgage is effectual to pass an estate by 1 Harper's App., 64 Penn. St. 315, 320. 2 Matter of Howe, 1 Paige, 125 ; Pinch v. Anthony, 8 Allen, 536, 539 ; Delaire V. Keenan, 3 Desauss. 74 ; Clarke v. Sibley, 13 Met. 210; Daggett v. Rankin, 31 Cal. 321 ; Margarum v. Christie 0. Co., 37 Fla. 165 ; s. c. 19 So. Eep. 637 ; Hackett v. Watts, 138 Mo. 502; s. c. 40 S. W. Rep. 113; Cummings v. Jackson, 55 N. J. Eq. 805 ; s. c. 38 Atl. Eep. 763. 3 Goddard y. Sawyer, 9 Allen, 78 ; Sedgwick v. Laflin, 10 Allen, 430, 433; Cutter V. Davenport, 1 Pick. 81. * Co. Lit. 205 a, Butler's note, 96 ; Laussat's Fonbl. Eq. 495, n. ; Hughes v. Edwards, 9 Wheat. 489; Morris v. Nixon, 1 How. 118; Russell t;. Southard, 1 2 How. 139 ; Menude v. Delaire, 2 Pesauss. 564 ; Reed v. Lansdale, Hardin, 6 ; James v. Morey, 2 Cow. 246 ; Hodges v. Tenn. M. & F. Ins. Co., 8 N. Y. 416 ; Bnggs V. Fish, 2 Chipm. 100 ; Bigelow v. Topliff, 25 Vt. 273 ; Westm. Bk. v. Whyte, 1 Md. Ch. Dec. 536 ; s. c. 3 id. 508 ; Wilcox v. Morris, 1 Murph. 116 ; Yarbrough v. Newell, 10 Yerg. 376; Edrington v. Harper, 3 J. J. Marsh. 353 ; Delahay v. McConnel, 4 Scam. 156; Davis v. Stonestreet, 4 Ind. 101; Steel?;. Steel, 4 Allen, 419 ; Vanderhaize v. Hugues, 13 N. J. Eq. 244 ; Gilson v. Gilson, 2 Allen, 115 ; Flagg v. Mann, 2 Sumn. 486, 533 ; Gibson v. Eller, 13 Ind. 124; Miami Ex. Co. v. U. S. Bk., Wright (Ohio), 249 ; Chowning v. Cox, 1 Rand. 306 ; Parks V. Hall, 2 Pick. 211, per Wilde, J. ; Conway v. Alexander, 7 Cranch, 218; Clark v. Henry, 2 Cow. 324 ; Henry v. Davis, 7 Johns. Ch. 40; Skinner V. Miller, 5 Litt. 84 ; Wilson v. Drumrite, 21 Mo. 325 ; Cotterell v. Long, 20 Ohio, 464; Howe r. Russell, 36 Me. 115; Woodworth v. Guzman, 1 Cal. 203; Rogan V. Walker, 1 Wis. 527 ; English v. Lane, 1 Port. (Ala.) 328 ; M'Brayer V. Roberts, 2 Dev. Eq. 75 ; Hauser v. Lash, 2 Dev. & B. Eq. 212 ; McLanahan v. McLanahan, 6 Humph. 99 ; Somersworth Sav. Bk. v. Roberts, 38 N. H. 22 ; 36 MORTGAGES. way of estoppel in the same manner as an ordinary deed of grant. 1 But if the terms of the condition are void for uncer- tainty, the deed becomes absolute.^ It is not, however, neces- sary, in order to create a mortgage, that the condition should expressly provide that if it is performed the deed shall be void. The court regards the substance rather than the form of expression, and gives effect to the transaction accord ingly.^ § 981. Indestructibility of Equity of Redemption. — It is well established, that equity would regard as a nullity any agree- ment between the parties that an estate so conveyed should not be redeemable, or should be redeemable only at a particu- lar time, or by a particular person or class of persons.^ § 982. Form of Mortgage — Defeasance. — In respect to the form of a mortgage, it is usual to insert the terms upon which the conveyance may be defeated in the deed by which it is made. But this is not necessary. It is sufficient if it be done in a separate instrument of defeasance, made as a part of the transaction ; though courts disapprove of the latter mode, on account of its liability to lead to accident or abuse. ^ The condition in common mortgage-deeds is usually, substan- tially, a proviso, "Nevertheless that if A, his heirs, executors, or administrators, shall pay to B, his executors, administra- tors, or assigns, the sum of , with interest, by such a time, then this deed, as also a certain promissory note of Nugent V. Riley, 1 Met. 117 ; Stoever v. Stoever, 9 S. & R. 434 ; Campbell v. Linder, 50 S. C. 169; s. c. 27 S. E. Rep. 648 ; Kelton v. Brown, — Tenn, Ch.— ; s. c. 39 S. W. Rep. 541. 1 Galveston R. R. v. Cowdrey, 11 Wall. 459, 481 ; Williuk v. Morris Canal Co., 4 N. J. Eq. 377, 402. 2 Boody V. Davis, 20 N. H. 140 ; Somersworth Sav. Bk. v. Roberts, 38 N. H. 22. 8 Steel V. Steel, 4 Allen, 417 ; Lanfair v. Lanfair, 18 Pick. 299, 304; Mun-ay V. Walker, 31 N. Y. 399. * Co. Lit. 205, Butler's note, 96 ; Wnis. Real Prop. 353 ; Erskine v. Townsend, 2 Mass. 493 ; Lund v. Lund, 1 N. H. 39 ; Jaques v. Week.s, 7 Watts, 268, 275 ; Newcoinb v. Bonham, 1 Vern. 7 ; Henry v. Davis, 7 Johns. Ch. 40 ; Clark v. Henry, 2 Cow. 324 ; Miami Ex. Co. v. U. S. Bk., Wright (Ohio), 249 ; Eaton V. Green, 22 Pick. 526; Flagg v. Mann, 14 Pick. 467 ; Story, Eq. Jur. § 1019; Gillis V. Martin, 2 Dev. Eq. 470 ; Murphy v. Galley, 1 Allen, 107 ; Shoenberger V. Watts, 10 Am. Law Reg. 554. 5 Decker v. Leonard, 6 Lans. 264 ; Houser v. Lamont, 55 Penn. St. 311 ; War- ren V. Lovis, 53 Me. 463 ; Ewart v. Walling, 42 III. 453 ; Brinkman v. Jones, 44 Wis. 498 ; Honors v. Hutchings, 8 Bush, 687. NATURE AND FORM OF MORTGAGES, 37 even date, signed by the said A, whereby he promises to pay said B the said sum and interest at the time aforesaid, sliall both be void." But a deed containing the usual proviso, except the last clause, "then this deed, etc., shall be void," which was omitted, was held not to constitute such a defeas- ance as to make it a mortgage, until the same had been re- formed by the court by inserting a clause to that effect. ^ But where the defeasance is by a separate instrument, it is not necessary that it should bear the same date as the deed itself, provided it be delivered at the same time. Nor would an immaterial discrepancy in the description of . the estate be- tween the deed and the instrument of defeasance invalidate its effect as a mortgage. ^ And in order to create a mortgage at common law, or what is called a legal as distinguished from an equitable mortgage, it is necessary that the instru- ment of defeasance should be of as high a nature as the deed itself which is to be defeated.^ And an assignment under seal of such instrument of defeasance, together with all right of the assignor to the land therein described, would be a good conveyance of the equity of redemption.* Thus a con- temporaneous bond conditioned to reconvey, made by gi-antee to grantor, is a sufficient defeasance.^ And the doctrine may be taken as a general one, that if several instruments are made and delivered the same day between the same parties in relation to the same subject-matter, they are regarded as parts of one instrument, and are to be construed together.^ 1 Adams v. Stevens, 49 Me. 362 ; Gotllard v. Coe, 55 Me. 385. But see Pearce V. "Wilson, 111 Penn. St. 14 ; Mellon v. Lemnion, ib. 56. 2 Brown v. Holyoke, 53 Me. 9. 8 Lund V. Lund, 1 N. H. 39 ; Bodwell v. Webster, 13 Pick. 411; Flint v. Sheldon, 13 Mass. 443; Harrison v. Trustees, 12 Mass. 455 : Kelh' v. Thompson, 7 Watts, 401 ; Eaton v. Green, 22 Pick. 526 ; Flagg v. Mann, 14 Pick. 467 ; Scott V. McFarland, 13 Mass. 309 ; Day v. Dunham, 2 Johns. Ch. 191 ; Jaques V. Weeks, 7 Watts, 251 ; Baker v. Wind, 1 Ves. Sr. 160; French v. Sturdivant, 8 Me. 246 ; Richardson v. Woodbury, 43 Me. 206 ; Warren v. Levis, 53 Me. 463 ; Hill V. Edwards, 11 Minn. 22, 28. * Graves v. Graves, 6 Gray, 391. 6 Erskine v. Townsend, 2 Mass. 493 ; Taylor v. Weld, 5 Mass. 109 ; Waters V. Randall, 6 Met. 479 ; Lane v. Shears, 1 Wend. 433 ; Peterson v. Clark, 15 Johns. 205 ; Van Wagner v. Van Wagner, 7 N. J. Eq. 27 ; Marshall v. Stewart, 17 Ohio, 356 ; Cross v. Hepner, 7 Ind. 359 ; Jackson v. Green, 4 Johus. 186 ; Woodward v. Pickett, 8 Gray, 617 ; Baxter v. Dear, 24 Tex. 17. 6 Wing V. Cooper, 37 Vt. 169, 178. 38 MORTGAGES. In Georgia, it was held that two mortgages of the same estate, made the same day to different persons, create a tenancy in common, though one is delivered two hours prior to the other. 1 And where the grantee and grantor entered into an indenture, whereby the grantor bound himself in a penalty to refund the consideration, and the grantee bound himself in a penalty to re-deed the premises upon being repaid in five years, it was held to be something more than a bond to re- convey, being in effect a defeasance of the grantor's deed simultaneously made, converting the same into a mortgage. ^ So where A made a deed, absolute in its terms, to B, and B, at the same time by his agreement, under seal, promised to reconvey the land whenever, within five years, the grantor should repay him the sum of one hundred dollars, and, if not paid within that time, the agreement to be void, and the deed be absolute without any right of redemption, it was held to be a mortgage.^ In Maine, it is requisite that the instru- ment of defeasance should be recorded, in order to be valid to change a deed into a mortgage as against any person except the maker of the defeasance, his heirs and devisees.'* In Bar- roilhet v. Battelle, the mortgage was contained in a lease between the parties, the lessee therein mortgaging a house erected by him on the premises, to secure the rent.^ It is also possible to create an equitable mortgage, valid as be- tween the parties and as against purchasers with notice, by an instrument void at law to create any estate in land, as for lack of a seal or proper witnesses.^ As will appear hereafter, equity grants relief by decreeing redemption in cases where the defeasance is not by deed, though courts of law with 1 Russell V. Carr, 38 Ga. 459. 2 Bayley v. Bailey, 5 Gray, 505 ; Wing v. Cooper, supra. 3 Murphy v. Galley, 1 Allen, 107 ; Sliarkey v. Sharkey, 47 Mo. 543 ; Robinson V. Willoughby, 65 N. C. 520. ■• Tomlinson v. Moumouth Ins. Co., 47 Me. 232. 5 7 Cal. 450. 6 Loveu. Sierra Nevada L. W. & M. Co., 32 Cal. 639 ; s. c. 91 Am. Dec. 602 ; Woods V. Wallace, 22 Penn. St. 171 ; Gale's Executors v. Morris, 29 N. J. Eq. 222 ; McQuie v. Peay, 58 Mo. 56 ; Blackburn v. Tweedie, 60 Mo. 505 ; Lake v. Doud, 10 Ohio, 415 ; Burnet v. Boyd, 60 Miss. 627 ; Miller v. R. & W. R. R. Co., 36 Vt. 452 ; Delaire v. Keenan, 3 Desauss. 74 ; s. c. 4 Am. Dec. 604 ; Margarum V. Christie 0. Co., 37 Fla. 165 ; s. c. 19 So. Rep. 637. NATURE AND FORM OF MORTGAGES. 39 limited jurisdiction have not such a power. ^ But unless the party agreeing to convey derives his title from the party with whom his agreement is made, it does not constitute a mort- gage. Thus where A, at the request of B, a mortgagor, pur- chased an outstanding mortgage under which the holder had entered to foreclose, under an agreement that B might sell the estate, and A would convey it upon being paid what he had advanced to purchase the mortgage, and B suffered the estate to foreclose in A's hands, it was held not to constitute a mortgage between A and B.^ § 983. Existence of Debt, how far necessary. — As the idea of a mortgage is founded upon the conveyance being by the way of security for the payment of money or the like, there must be some evidence of a debt existing from the grantor to the grantee, where the intention is to secure the payment of money, in order to construe such a conveyance as a mortgage. This is ordinarily effected by some writing, such as a bond or a note given by the grantor to the grantee for the repayment of the money loaned at the time of making the deed. But such bond or note is not essential, provided there is a debt between the parties capable of being enforced either against the debtor or the property mortgaged.^ It is not essential that the recital of the instrument evidencing the debt due in the deed should be, in all respects, like the original; as if, for example, the note was payable to A "or order," and the words "or order" were omitted in the description.^ So where the condition of a mortgage was to pay a note for $800, it was held competent for the mortgagor to show it was intended to secure the mortgagee for having become surety in another note for the mortgagor, which the latter had paid.^ 1 Richardson v. Woodbury, 43 Me. 206 ; Eaton v. Green, 22 Pick. 526. But now that the courts of Massachusetts have full chancery powers since the statutes of 1857, c. 214, and 1877, c. 178, it would seem that the power need no longer be thus limited. So see Chase v. Peck, 21 N. Y. 581 ; Paine v. Wilson, 74 N. Y. 348. 2 Capen v. Richardson, 7 Gray, 364. See Robinson v. Robinson, 9 Gray, 447. 3 Russell V. Southard, 12 How. 139 ; Jaques v. Weeks, 7 Watts, 261, 268, 276 ; Smith V. People's Bk., 24 Me. 185 ; Wharf v. Howell, 5 Binn. 499 ; Brown v. Dewey, 1 Sandf. Ch. 56 ; Rice v. Rice, 4 Pick. 349 ; Mitchell v. Burnham, 44 l^Ie. 286, condition to support certain persons ; Hickox v. Lowe, 10 Cal. 197 ; Whitney V. Buckman, 13 Cal. 536, 539 ; Brookings v. White, 49 Me. 479. * Hough V. Bailey, 32 Conn. 288. 6 Kimball v. Myers, 21 Mich. 276. 40 MORTGAGES. And where the deed described two notes of $150 each, and one of the notes produced in evidence was for $200, it was held competent for the mortgagee to show that it was the note intended to be secured.^ Nor is it necessary that the debt intended to be secured should be collectible in an ordinary suit at law. As where a wife who could make a deed of her lands, but could not bind herself by a promissory note, made a mortgage to secure a note given by her, it was held that the mortgage was good, though the note was not collectible. ^ So a mortgage by husband and wife of wife's land for husband's debt would be good.^ And this may be done to secure a future as well as a present indebtedness of the husband.* So a mortgage to secure an existing indebtedness is held to be for a valuable consideration, and protected accordingly.^ And although both debt and mortgage may be invalid in the mortgagee's hands for the illegality of the consideration, — the sale of sj)irituous liquors, for example, — if the mortgage is assigned bona fide to one who is ignorant of this, it will be good in the assignee's hands. ^ Again, where the condition of the deed recited that the grantor was indebted to the grantee "for moneys loaned, and for his liability on divers bills of exchange and promissory notes," and provided that if he discharged them within 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.' The law on this point is thus stated by Story, J. : "The ab- sence of such a covenant may, in some cases, where the trans- 1 Cushman v. Luther, 53 N. H. 562. 2 Brookings v. White, 49 Me. 479 ; Beals v. Cobb, 51 Me. 348 ; "Wyman v. Brown, 50 Me. 150. In Heburn v. Warner, 112 Mass. 271, the validity of such a mortgage at law was denied, but it was sustained in equity as a charge on her land. See, accordingly. Van Cott v. Heath, 9 Wis. 516, 525 ; Story, Eq. § 1399 ; K"eim- cewicz V. Gahn, 3 Paige, 616, 643, 650 ; Hodges v. Price, 18 Fla, 342. 8 Ellis V. Kinyon, 25 Ind. 134, 136 ; Hubble v. Wright, 23 Ind. 322 ; Bartlett V. Bartlett, 4 Allen, 440 ; Gabbert v. Schwartz, 69 Ind. 450. * Hoffey V. Carey, 73 Penn. St. 431. 5 Babcock f. Jordan, 24 Ind. 14; Sharp v. Proctor, 5 Bush, 396; Smith v. Wilson, 2 Met. (Ky.) 235 ; Johnston v. Ferguson, id. 503; Hobson v. Hobson, 8 Bush, 665 ; Wolf v. Van Metre, 23 Iowa, 397. 6 Brighani v. Potter, 14 Gray, 522 ; Taylor v. Page, 6 Allen, 86. ■? Hard V. Robinson, 11 Ohio St. 232. See Utley v. Smith, 24 Conn. 290, 314; Gill V. Pinnev, 12 Ohio St. 38. NATURE AND FORM OF MORTGAGES. 41 action assumes the form of a conditional sale, be important to ascertain whether the transaction be a mortgage or not; but of itself it is not decisive. The true question is, whether there is still a debt subsisting between the parties ca])able of being enforced in any way, in rem or in jjersonam. " ^ There- fore, though the holder of the security were to discharge the mortgage, the debtor's liability for the debt would remain; and, on the other hand, if the debt is barred by the statute of limitations, or is discharged by the insolvency of the debtor, the mortgage would still be good.^ And the doctrine to be derived from the cases cited below seems to be this, that the want of mutuality, that is, the liability of the grantor to pay, as well as of the grantee to release upon be- ing paid, is only to be regarded in determining whether the transaction was originally a mortgage or not. If it was in- tended as a mortgage, this want of mutuality would not pre- vent its having that character,^ though a few cases maintain that such mutuality is essential to constitute the transaction a mortgage.* § 984. Mortgage valid •without Personal Obligation. — The English cases, as is generally done in this country, hold, that, while the absence of this mutuality is an important circum- stance bearing upon the question of the transaction being a mortgage, the giving of such bond or mortgage-note is not essential to constitute it such.^ Where there is no such bond 1 Flagg V. Mann, 2 Sumn. 486, 534 ; Murphy v. Calley, 1 Allen, 107 ; Rich v. Doane, 35 Vt. 129 ; Haines v. Thompson, 70 Penn. St. 434. ■■i Ball V. Wyeth, 8 Allen, 275, 278. 8 Flint V. Sheldon, 13 Mass. 443 ; Bodwell v. Webster, 13 Pick. 411 ; Brant v. Robertson, 16 Mo. 129 ; Swetland v. Svvetland, 3 Mich. 482; Mt. Pleasant Rk. v. Sprigg, 1 McLean, 178 ; Miami Ex. Co. i;. U. S. Bk., Wright (Ohio), 252; Dougherty V. McColgan, 6 Gill & J. 275 ; Conway v. Alexander, 7 Cranch, 218; Glover v. Payn, 19 Wend. 518 ; Holmes v. Grant, 8 Paige, 243 ; Stejihens v. Sherrod, 6 Tex. 294 ; Bacon v. Brown, 19 Conn. 29 ; Mills v. Darling, 43 Me. 565 ; Hickox v. Lowe, 10 Cal. 197 ; Murphy v. Callej^, 1 Allen, 107 ; Flagg v. Mann, 14 Pick. 467, 479. 4 Chase's Case, 1 Bland, Ch. 206 ; Reading v. Weston, 7 Conn. 143 ; Low v. Henry, 9 Cal. 538, required the intention of the parties to make it a mortgage to appear in express terms of the deed, if this mutuality did not exist in the way of a note or bond. ° Floyer v. Lavington, 1 P. Wras. 2G8 ; Lawley v. Hooper, 3 Atk. 280 ; Coote, Mortg. 12 ; Ring v. King, 3 P. Wms. 358 ; Mellor v. Lees, 2 Atk. 494 ; Exton v. Greaves, 1 Vern. 138 ; Goodman v. Griersou, 2 Ball & B. 274. 42 MORTGAGES. or note given by the grantor, nor any covenant to repay, in the deed, but a proviso is inserted that if the grantor pays, etc., by a certain day, the deed is to be void, a question has been made whether the grantee has thereby any other remedy against the grantor to recover the money loaned than by en- forcing the mortgage upon the land. And it seems now to be settled that he has no personal claim for the money upon the mortgagor. 1 But if the instrument constituting the mort- gage acknowledges the existence of a debt to the mortgagee, for the payment of which the conveyance is made as security, the mortgagee may sue for the same in assumpsit without resorting to the mortgage. ^ It was held in New York, that if a parent makes a mortgage to a child conditioned to pay him a certain sum out of his estate, it would be valid and effectual, and may be enforced by foreclosure, if it can be done without interfering with the rights of creditors.^ § 985. Deed absolute on its Face as a Mortgage, — In appar- ent conflict with the statute of frauds, it is now well settled law that a deed absolute on its face, if delivered with the intention of creating a security for the payment of money, is in fact a mortgage, and that such intention may be shown by parol evidence.* If one with notice purchase of the mort- 1 Briscoe v. King, Cro. Jac. 281; Tooms v. Chandler, 3 Keble, 454; SufBeld v. Baskervil, 2 Mod. 36 ; Howell v. Price, 2 Veni. 701 ; Floyer v. Lavington, 1 P. Wms. 268 ; Salisbury v. Philips, 10 Johns. 57 ; Drummond v. Pdchards, 2 Munf. 337 ; Hunt v. Lewin, 4 Stew. & P. 138 ; Elder v. Rouse, 15 Wend. 218 ; Conway V. Alexander, 7 Cranch, 218 ; 1 Powell, Mortg. 61, n., 774 ; Scott v. Fields, 7 Watts, 360 ; Tripp ;;. Vincent, 3 Barb. Ch. 613 ; Ferris v. Crawford, 2 Denio, 595 ; Piatt, Gov. 37 } Hills v. Eliot, 12 Mass. 26. 2 Yates V. Aston, 4 Q. B. 182 ; Elder v. Rouse, 15 Wend. 218. See Goodwin V. Gilbert, 9 Mass. 510. 3 Bucklin v. Bucklin, 1 Abb. (N. Y.) 242, where the mortgage was made to a trustee in favor of an infant child. * Bragg V. Massie, 38 Ala. 89 ; English v. Lane, 1 Port. 328 ; Locke v. Palmer, 26 Ala. 312 ; Bryan v. Cowart, 21 Ala. 92 ; Brantley v. West, 27 Ala. 542 ; West V. Hendrix, 28 Ala. 226 ; Parish v. Gates, 29 Ala. 254 ; Crews v. Threadgill, 35 Ala. 334 ; Wells v. Morrow, 38 Ala. 125 ; Phillips v. Croft, 42 Ala. 477 ; Blakemore v. Byrnside, 7 Ark. 505 ; Johnson v. Clark, 5 Ark. 321 ; Scott v. Henry, 13 Ark. 112 ; Jordan v. Fenno, id. 593; McCarron v. Cassidy, 18 Ark. 34; Porter v. Clements, 3 Ark. 364; Pierce w. Robinson, 13 Cal. 116; Johnson v. Sherman, 15 id. 287 ; Lodge V. Turman, 24 id. 385 ; Kuhn ;>. Rumpp, 46 id. 299 ; Taylor v. McLean, 64 id. 513 ; Washburn v. Merrills, 1 Day, 139 ; Benton y. Jones, 8 Conn. 186 ; French V. Burns, 35 Conn. 359 ; Chaires v. Brady, 10 Fla, 133 ; Neubert v. ilassman, 37 NATURE AND FORM OF MORTGAGES. 43 gagee holding a deed absolute in its terms, he holds the estate subject to redemption by the mortgagor or his assigns.^ Fla. 91 ; s. c. 19 So. Eep. 625 ; Preschbaker v. Feaman, 32 111. 475 ; Sutplien v. Cushman, 35 111. 186 ; Price v. Karnes, 59 111. 276 ; Klock v. Walter, 70 111. 416; Westlake v. Horton, 85 111. 228 ; Conwell v. Evill, 4 Blackf. 67 ; Smith v. Parks, 22 Ind. 59 ; Hayworth v. Worthiiigton, 5 Blackf. 361 ; Graham v. Graham, 55 Ind. 23 ; Herron v. Herron, 91 Ind. 278 ; Landers v. Beck, 92 Ind. 49; Trucks v. Lindsey, 18 Iowa, 504 ; Holliday v. Arthur, 25 Iowa, 19 ; Key v. McCleary, id. 191 ; Crawford v. Taylor, 42 Iowa, 260 ; Moore v. Wade, 8 Kan. 380 ; McDonald V. Graham, 30 Kan. 170 ; s. c. 2 Pac. Rep. 507 ; Skinner v. Miller, 5 Litt. 84 ; Lindley v. Sharp, 7 T. B. Moii. 248 ; Edrington v. Harper, 3 J. J. Marsh. 353 ; Cook i;. Collyer, 2 B. Mon. 71 ; Thomas v. McCormack, 9 Dana, 109 ; Reed v. Reed, 75 Me. 264 ; Bank, etc. v. Whyte, 1 Md. Ch. Dec. 536 ; s. c. 3 Md. Ch. Dec. 508 ; Wat- kins V. Stockett, 6 Har. & J. 435 ; Farrell v. Bean, 10 Md. 217 ; Artz v. Grove, 21 Md. 456. But the evidence is only competent to show fraud or mistake. Ibid. ; and see Baugher v. Merryman, 32 Md. 185 ; Stackpole v. Arnold, 11 Mass. 27 ; Flint v. Sheldon, 13 Mass. 443 ; Flagg v. Mann, 14 Pick. 467 ; Hunt v. Maynard, 6 Pick. 489 ; Bodwell v. Webster, 13 Pick. 411 ; Eaton v. Green, 22 Pick. 526 ; Lincoln v. Parsons, 1 Allen, 388 ; Coffin v. Loring, 9 Allen, 154 ; Campbell v. Dearborn, 109 Mass. 130 ; McDonough v. Squire, 111 Mass. 217; Swetland v. Swetland, 3 Mich. 482; Wadsworthr. Loranger, Harringt. Ch. 113 ; McClane v. White, 5 Minn. 178, 189; Holton v. Meighen, 15 Minn. 69; Weide v. Gehl, 21 Minn. 449; Vasser r. Yasser, 23 Miss. 378 ; Anding v. Davis, 38 Miss. 574 ; Weathersly v. Weathersly, 40 Miss. 462; Watson v. Dickens, 12 Sin. & M. 608; Klein v. McNamara, 54 Miss. 90 ; Hogel v. Lindell, 10 Mo. 483 ; Tibeau v. Tibeau, 22 Mo. 77 ; Slowey v. McMurray, 27 Mo. 113 ; O'Neil v. Cappelle, 62 Mo. 202 ; Mclntyre v. Humphreys, 1 Hoff. Ch. 31 ; Despard v. Walbridge, 15 N. Y. 374; Slee v. Manhattan Co., 1 Paige, 48 ; Horn v. Keteltas, 46 N. Y. 605 ; Garnsey i-. Rogers, 47 N. Y. 233, 238 ; Carr v. Carr, 52 N. Y. 251, 258 ; Meehan v. Forrester, id. 277 ; Odell v. Montross, 68 N. Y. 499 ; Crane v. Bonnell, 2 N. J. Eq. 264 ; Youle v. Richards, 1 IST. J. Eq. 534 ; Lockerson v. Stillwell, 13 N. J. Eq. 357 ; Hogan v. Jaques, 19 N. J. Eq. 123 ; Sweet v. Parker, 22 N. J. Eq. 453 ; McDonald v. McLeod, 1 Ired. Eq. 221 ; Glisson V. Hill, 2 Jones, Eq. 256 ; Sellers v. Stalcup, 7 Ired. Eq. 13 ; Elliott v. Maxwell, id. 246 ; Blackwell v. Overby, 6 Ired. Eq. 38 ; Steel v. Black, 3 Jones, Eq. 427 ; Gregory v. Perkins, 4 Dev. 50 ; Miami Ex. Co. v. U. S. Bk. , Wright, 252 ; Cotterell v. Long, 20 Ohio, 464 ; Hurford v. Harned, 6 Or., 362 ; Kinney V. Heatley, 13 Or. 35 ; s. c. 7 Pac. Rep. 359 ; Hiester v. Maderia, 3 W. & S. 384 ; Reitenbaugh v. Ludwick, 31 Penn. St. 131 ; Todd v. Campbell, 32 Penn. St. 250 ; Maffitt V. Rynd, 69 Penn. St. 380 ; Fessler's App., 75 Penn. St. 483 ; Umbenhower V. Miller, 101 Penn. St. 81. But by Act June 8, 1881, p. 84, a written defeasance is required. Before that act the proof to convert a deed into a mortgage had to be clear, and leave no doubt. Lance's App., 112 Penn. St. 456 ; Nichols v. Reynolds, 1 R. I. 30 ; Arnold v. Mattison, 3 Rich. Eq. 153 ; Brown v. Wright, 4 Yerg. 57 ; Overton v. Bigelo^, 3 Yerg. 513 ; Lane v. Dickerson, 10 Yerg. 373 ; Hinson v. Partee, 11 Humph. 587 ; Ruggles v. Williams, 1 Head, 141 ; Nichols v. Cabe, 1 Reigard v. Neil, 38 111. 400 ; Holliday v. Arthur, 25 Iowa, 19 ; Key v. McCleary, 25 Iowa, 191. 44 MORTGAGES. But a bona fide purchaser from the grantee in such a deed, not knowing it to be a mortgage, would hold the estate by an absolute title. ^ In England, it is held that parol evidence is competent to show that a conveyance was made by the way of security only.^ And such seems to be the rule in general in courts of equity, where deeds are absolute upon their face.^ Thus, in Maine, while the rule was recognized as a settled doctrine of equity,* the courts have only been able to apply it since receiving full equity jurisdiction by a recent statute.^ But in Georgia and New Hampshire such evidence is pre- cluded by statute.^ In Michigan, a distinction is made be- tween a holding of land under an absolute deed given by way of security for a loan and a mortgage. Such a holding is regarded as being that of an agent, and the measure of his liability for rents and the like is that of an agent only.' In North Carolina, if a deed intended to be a security, but ab- solute in its terms, is recorded, it would be postponed to a mortgage in proper form subsequently recorded, since the record of the first would not show the true transaction.^ It 3 Head, 92 ; Stampers v. Johnson, 3 Tex. 1 ; Carter v. Carter, 5 Tex. 93 ; Hannaj' u. Thompson, 14 Tex. 142 ; Grooms u. Rust, 27 Tex. 231 ; Gibbs v. Penny, 43 Tex. 560; Catlett v. Starr, 70 Tex. 485 ; s. c. 7 S. W. Rep. 844; Baxter u. Willey, 9 Vt. 276; Wright u. Bates, 13 Vt. 341 ; Hyndmau v. Hyndman, 19 Vt. 9 ; Wing v. Cooper, 37 Vt. 169; Hills v. Loomis, 42 Vt. 562 ; Ross v. Norvell, 1 Wash. 14 ; Thompson v. Davenport, id. 125 ; Robertson v. Campbell, 2 Call, 421 ; King v. Newman, 2 Munf. 40 ; Bird v. Wilkinson, 4 Leigh, 266 ; Snavely v. Fickle, 29 Gratt. 27 ; Rogan v. Walker, 1 Wis. 527 ; Fairehild v. Rassdall, 9 Wis. 379, 391; Kent v. Lasley, 24 Wis. 654; Wilcox v. Bates, 26 Wis. 465; Wilson v. Richards, 1 Neb. 342 ; Deroin v. Jennings, 4 Neb. 97 ; Saunders v. Stewart, 7 Nev. 200 ; Russell v. Southard, 12 How. 139, 148 ; Babcock v. Wyman, 19 How. 289 ; Sprigg V. Mt. Pleasant Bk., 14 Pet. 201 ; Peugh v. Davis, 96 U. S. 332; Title Guar. & Trust Co. v. Northern Counties I. T., 73 Fed. Rep. 931 ; Klinck v. Price, 4 W. Va. 4. 1 Conner w. Chase, 15 Vt. 764. 2 Coote, Mortg. 24. 3 Story's E(|. § 1018 ; U. M. L. I. Co. v. White, 106 111. 67. * Woodman v. Woodman, 3 Me. 350 ; Thomaston Bk. v. Stimpson, 21 ile. 195 ; Howe V. Russell, 36 Me. 115 ; Richardson v. Woodbury, 43 Me. 206. 5 Act 1874, c. 175 ; Reed v. Reed, 75 Me. 264, where the doctrine declared in Richardson v. Woodbury, supra, that in such a case a resulting trust arose in favor of the grantor was denied. 6 Ga. Code, 1895, § 2725; N. H. Pub. Stat. 1901, c. 139, § 2. ' Bernard v. Jennison, 27 Mich. 230. 8 Gregory v. Perkins, 4 Dev. 50 ; Halcomb v. Ray, 1 Ired. 340. NATURE AND FORM OF MORTGAGES. 45 is not competent to show by parol that what purports to be a mortgage-deed is, in fact, an absolute one;^ nor, if one abso- lute in terms has been given as security for one debt, is it competent to show that it is a security for an additional sum to that originally agreed upon.^ § 986. Deeds absolute on Face as Fraudulent Conveyances. — [The estate in the land remaining in the mortgagor is sub- ject to levy and sale upon execution. The natural result of a mortgage absolute on its face, executed by a failing debtor, is to mislead his creditors, thereby hindering and delaying them in the enforcement of their claims. Such a mortgage is a fraud on the part of the mortgagor ^ and is void as against creditors, although the mortgagee paid a valuable considera- tion, unless he took without notice*] § 987. The Defeasance. — The agreement, whether by parol or in writing, which is relied on to operate as a defeasance, must form a part of the original transaction, though, if in writing, it is not essential that it should be reduced to writ- ing at the time.^ If executed afterwards, in pursuance of such an agreement, it will be regarded as if it formed a part of the original transaction.^ Thus where a deed was made in July, 1845, and in July, 1846, the grantee gave the grantor a bond, reciting that the deed had been made to secure a loan, and conditioned to reconvey upon payment of a certain sum, it was held to constitute a mortgage.'^ So even though the deed and the defeasance bear different dates, they will constitute a mortgage if delivered together.^ And where the 1 Wing V. Cooper, 37 Vt. 169. 2 Stoddard v. Hart, 23 N. Y. 556. 8 Lukeus V. Qird, 6 Wall. 78 ; Campbell v. Davis, 85 Ala. 56 ; 8. c. 4 So. Rep, 140. * Neubert v. Massman, 37 Fla. 91 ; s. C. 19 So. Rep. 625. 6 Teal V. Walker, 111 U. S. 242. 6 Umbenhower v. Miller, 101 Penn. St. 71. ^ Montgomery u. Chadwick, 7 Iowa, 114, 132. See also Reitenbaugh v. Lud- wick, 31 Peun. St. 131 ; Wilson v. Shoenberger, id. 295. 8 Lund V. Lund, 1 IST. H. 39 ; Harrison v. Trustees, etc., 12 Mass. 456 ; Blaney V. Bearce, 2 Me. 132 ; Colwell v. Woods, 3 Watts, 188 ; Kelly v. Thompson, 7 Watts, 401 ; Bryan v. Cowart, 21 Ala. 92 ; Swetland v. Swetland, 3 Mich. 482 ; Freeman v. Baldwin, 13 Ala. 246 ; Bennock v. Whipple, 12 Me. 346 ; Lovering V. Fogg, 18 Pick. 540 ; Reitenbaugh v. Ludwick, 31 Penn. St. 131 ; Bodwell v. Webster, 13 Pick. 411 ; Newhall v. Burt, 7 Pick. 157 ; Scott v. McFarland, 13 46 MORTGAGES. grantee, at the time of the making of the deed, agreed to exe- cute a defeasance to the grantor, and did so, though at a subsequent time, it was held to retroact so as to create a mortgage, if the grantee in the mean time had done nothing to change the rights of the parties.^ If there is any question as to the time of executing the two papers, or of malting the agreement of defeasance, the burden of proof is on the one who sets it up as such.^ And in showing this he may resort to parol evidence, and he may also show, in the same way, that a defeasance executed at a subsequent time was part of the original agreement.^ The converse of the proposition above made is equally true, that if the agreement or instru- ment offered to establish a defeasance be entered into subse- quent to the principal deed, and not in pursuance of the original agreement, it will not constitute a mortgage,* though in some cases courts have been inclined to hold that a defeas- ance will relate back to the time of making the original deed.^ So if a defeasance or an agreement to reconvey on payment of money be written upon the back of the deed, though not dated, it will be presumed to be of a simultaneous date, and make it a mortgage.^ § 988. What Agreements amount to Defeasances creating Mort- gages. — In respect to what will be sufficient in form to constitute a defeasance in equity, it has been held that any agreement in writing is sufficient.^ But to give a defeasance effect, it must Mass. 309; Harden v. Babcock, 2 Met. 99 ; Hale v. Jewell, 7 Me. 4-35. By statute of Maine, they must be executed at the same time, or be part of the same trans- action. 1857, p. 563. 1 Lovering v. Fogg, 18 Pick. 540; Coffin v. Loring, 9 Allen, 154. 2 Holmes v. Grant, 8 Paige, 243. 3 Reitenbaugh v. Ludwick, 31 Penn. St. 131. * Lund V. Lund, 1 N. H. 39 ; Swetland i;. Shetland, 3 Mich. 482 ; Kelly v. Thompson, 7 Watts, 401 ; Bryan v. Cowart, 21 Ala. 92 ; 2 Crabb, Real Prop. 847. 5 Scott V. Henry, 13 Ark. 112 ; Crane v. Ronnell, 2 N. J. Eci- 264. See Reiten- baugh V. Ludwick, 31 Penn. St. 131. 6 Perkins v. Dibble, 10 Ohio, 433 ; Stocking v. Fairchild, 5 Pick. 181 ; Bald- win V. Jenkins, 23 Miss. 206 ; Whitney v. French, 25 Vt. 663 ; Brown v. Nickle, 6 Penn. St. 390. But it was held in New Hampshire that it must first be shown that the defeasance was upon the deed when executed. Emerson v. Murray, 4 N. H. 171. ^ Read v. Gaillard, 2 Desauss. 552 ; Hicks v. Hicks, 5 Gill & J. 75 ; Batty v. Snook, 5 Mich. 231 ; Cross v, Hepner, 7 Ind. 359 ; Breckenridge v. Auld, 1 Rob. NATURE AND FORM OF MORTGAGES. 47 be delivered ; and where it was deposited with a third party to be delivered upon a condition wliich the grantor never per- formed, it was held not to constitute a mortgage,^ Among the cases bearing upon the question of what will constitute a suffi- cient agreement to give a deed the character of a mortgage, are the following : An agreement was made under seal that the deed should be deposited with a third person, to be delivered to the grantee if the grantor failed to repay a sum loaned him by a certain time. It was held to be a mortgage.^ So an agree- ment that the title should not vest till the purchase-money was paid.^ So a deed with a condition annexed, that, if the grantor paid certain legacies charged upon other lands, it should be void.* So a deed conditioned to become void unless a certain amount is paid by a certain day is, in effect, a deed of mort- gage from the debtor to the creditor.^ A contract to convey, in consideration of a certain sum, with a bond to reconvey upon payment, is a mortgage." An indenture of lease, reciting that the lease is made as security to the lessee for his support by the lessor, was held to be a mortgage.'^ So a lease where the pay- ment of the rent for the full term was acknowledged, and the lessee covenanted to reconvey upon being repaid the same, was held to be a mortgage.^ Where the sale was for the full value, but with an agreement on the part of the grantee, that if he could, within a certain time, sell for more than the purchase- money, with interest, the surplus should be paid over to the grantor, the transaction was held a mortgage.^ So if the grantee covenant that he will sell within a certain time at the best price, and pay over the residue.^*^ Though it was agreed that if the grantor, a debtor, could find a purchaser within one (Va.)148; Belton v. Avery, 2 Root, 279 ; Marshall t;. Stewart, 17 Ohio, 356; 2 Greenl. Cruise, 68, n. 1 Bickford v. Daniels, 2 N. H. 71. 2 Carey v. Rawson, 8 Mass. 159. 8 Piigh V. Holt, 27 Miss. 461 ; Carr v. Holbrook, 1 Mo. 240. * Stewart v. Hutchins, 13 Wend. 485. ^ Austin V. Downer, 25 Vt. 558. 8 Harrisons. Lemon, 3 Blackf. 51. 7 Lanfair y.- Lanfair, 18 Pick. 299 ; Gilson v. Gilson, 2 Allen, 115. 8 Nugent V. Riley, 1 Met. 117. 9 Gillis V. Martin, 2 Dev. Eq. 470. 1" Ogden V. Grant, 6 Dana, 473. 48 MORTGAGES. year, he should be entitled to the surplus which he would obtain beyond the amount which had been paid him by discharging his debt, and which was a fair value of the land, it was held not to be a mortgage.^ So where a grantee, at the time of the mak- ing of the deed, binds himself to reconvey or pay a certain sum of money to the grantor, at the option of the obligor, it is not a defeasance, and does not constitute a mortgage.^ § 989. Distinction between Mortgage and Right to repurchase. — It is sometimes difficult to draw the line of distinction between a transaction which constitutes a mortgage, and one where there is a mere right to repurchase on the part of the grantor upon certain terms. The difference in the effect of these is exceedingly important. In the one, equity interposes, and, dis- regarding the question of time, grants relief after a failure to perform, by giving opportunity to do so at another time. In the other, the law only deals with the contract, and requires the party who would avail himself of the benefit of it to exe- cute his part with precision and punctuality. In the case of a mere right to repurchase upon the payment of a certain sum at a certain time, if there be a failure to comply strictly, all right to the estate is gone, and tliere is no such thing as redemption in such case.^ Each case, however, depends upon its own cir- cumstances, and the intention of the parties. But if this is doubtful, courts always incline to treat it as a mortgage.* So a sale with a right to repurchase, though valid, is scrutinized by the courts to see if it has not been resorted to in order to evade the right of redemption in the mortgagor.^ And a sale to one for a certain consideration, where a clause in the deed provided that, if the grantor should pay such a sum by a cer- tain time, the obligation should be void, but he gave no obliga- tion to pay, was held not to be a mortgage, but a sale with a privilege of repurchase.^ But a bond, in terms a defeasance, 1 Holmes v. Grant, 8 Paige, 243. 2 Fuller V. Pratt, 10 Me. 197 ;. Hebron v. Centre Harbor, 11 N. H. 571. 3 2 Cruise, Dig. 74, § 38 ; Robertson v. Campbell, 2 Call, 421 ; Kelly v. Tliomp- son, 7 Watts, 401 ; 4 Kent, Com. 144. * Hughes V. Sheaff, 19 Iowa, 335 ; Weatheraly v. Weathersly, 40 Miss. 462 ; Wingv. Cooper, 37 Vt. 169, 179. ° Trucks V. Lindsey, 18 Iowa, 504. 8 Pearson v. Seay, 35 Ala. 612. NATURE AND FORM OP MORTGAGES. 49 as that the grantee shall recoiivey to the grantor, upon being paid a certain sum, does not convert the original conveyance into a mortgage, unless this bond formed a part of the original agreement or transaction between the parties.^ § 990. Mortgage, or Contract torecouvey — Test. — It is equally competent for the parties to give the transaction of a convey- ance of land either of these characters, according to their inten- tion.2 And the proposition may be regarded as a general one, that a conveyance is not a mortgage, unless the grantee in- tended to make a loan upon it as security .^ On the other hand, if the transaction of the parties actually constitutes a mortgage in terms, it will have that effect, though not so intended by them when it was done. Thus where one made a deed, and the grantee gave back a bond to reconvey on certain conditions, it was held that, though not intended thereby to create a mort- gage, it was one in fact.* § 991. The Test, continued. — The question seems to resolve itself into whether there is a loan and a security therefor in- tended by the parties, or a bona fide sale with a right to repur- chase. Thus, where L, who had a verbal promise from P, to whom he had conveyed land, to reconvey it on being paid, etc., applied to W to loan money on the land, who refused, but oii'ered to take an absolute deed of purchase from L and P, and paid for the land, and at the same time gave L a bond to reconvey the estate within a certain time, upon being repaid the purchase-money, it was held not to constitute a mortgage, but a right to repurchase. There was no loan by W to L.^ So where the grantee, immediately after the execution of a deed of sale, gave back, but not as a part of the original contract, a 1 Trull V. Skinner, 17 Pick. 213; Green v. Butler, 26 Cal. .595, 605. ' 2 Conway v. Alexander, 7 Cranch, 218 ; Page v. Foster, 7 N. H. 392 ; Flagg v. Mann, 14 Pick. 467, 483 ; Wms. Real Prop. 353, Ravvle's note. 8 De France v. De France, 34 Penn. St. 385 ; Rich v. Doane, 35 Vt. 125, 129 ; Fullerton v. McCurdy, 55 N. Y. 637, distinguishing Stoddard v. Whiting, 46 N. Y. 627; Carr u. Carr, 52 N. Y. 251. In Houser v. Lamont, 55 Penn. St. 311, an absolute deed was held a mortgage because it appeared given as security, though there was no express agreement for repayment to the grantee of his advance. See also Smith v. Kncebel, 82 111. 392 ; Strong v. Shea, 83 111. 575 ; Barnett v. Xelsou, 46 Iowa, 495. * Col well V. Woods, 3 Watts, 188 ; Kunkle v. Wolfersberger, 6 Watts, 126. 6 Flagg V. Mann, 14 Pick. 467 ; Murray v. Riley, 140 Mass. 490. VOL. II. — 4 50 MORTGAGES. •writing, that if the g;rantor would, within a certain time, bring so much money, — the purcliase-money and interest, — he would give up the deed, but, if not then paid, the grantor was to for- feit all claim to the deed, it was held a contract to repurchase, and not a mortgage,^ A court of equity will not, at the in- stance of a grantor, declare a deed made to defraud or delay creditors, which is absolute in its terms, to be a mortgage or a trust.2 § 992. Distinguishing Indicia. — There have been numerous cases, both in England and this country, where this question has been raised, and certain things have been held to bear upon its being a bona fide sale, with a contract to repurchase, or a mortgage under the form of a sale, to which reference will now be made. The above is a test of whether a transaction is a mortgage or not, as recognized by the English courts.^ In several cases, it w^as held that a conveyance in satisfaction of a prior debt, though accompanied by a clause of redemption, was not a mortgage, but a sale, with a right of repurchase,* depending upon whether the debt is extinguished, or the relation of debtor and creditor remains, and a debt still subsists.^ In the others, cited below, a sale at an agreed price paid, with an agreement that the vendor may repurchase at an advanced price, was held to be but an agreement for a repurchase.^ § 993. The Question one of Fact. — It seems, after all, to be a question of evidence for the court to determine upon the facts in each case, whether the transaction is a mortgage or a sale with right of repurchase. Thus, in the cases cited below, the court held that an absolute conveyance with a condition or bond for reconveyance on the payment of a fixed sum, at a day cer- 1 Reading v. Weston, 7 Conn. 143 ; Cook v. Gudger, 2 Jones (N. C), Eq. 172 ; Lokerson v. Stillwell, 13 N. J. Eq. 357. 2 May V. May, 33 Ala. 203 ; Miller v. Marckle, 21 111. 152. 3 Williams v. Owen, 5 Mylne & C. 303 ; Barrell v. Sabine, 1 Vern. 268 ; Perry V. Meddowcroft, 4 Beav. 197; Cotterell v. Purchase, Cas. temp. Talb. 61 ; Ensworth V. Griffiths, 5 Bro. Par. Cas. 184 ; Haines v. Thompson, 70 Penn. St. 434, 442 ; Cornell v. Hall, 22 Mich. 377 ; Hanford v. Blessing, 80 III. 188. * Robinson v. Cropsey, 2 Edw. Ch. 138 ; s. c. 6 Paige, 480 ; McKinstry v. Conly, 12 Ala. 678 ; Poindexter v. McCannon, 1 Dev. Eq. 373 ; West v. Hendrix, 28 Ala. 226; Hickox v. Lowe, 10 Cal. 197. 5 Hoopes V. Bailey, 28 Miss. 328 ; Slowey v. McMurray, 27 Mo. 113, 116. « Glover v. Payn, 19 Wend. 518 ; Brown v. Dewey, 2 Barb. 28. NATURE AND FORM OP MORTGAGES. 61 tain, was prima facie a mortgage, independent of evidence showing the existence of a debt.^ § 994. Parol Evidence, when excluded. — [The question can only arise, however, when a deed absolute on its face is alleged to be a mortgage. Where the deed ap|)cars on its face to be a mortgage, it is incompetent to show by parol that it was in- tended as an absolute conveyance, for this would be to vary the intention of the parties as expressed in the writing. While, therefore, a conditional sale may be shown to be a mortgage, the converse is not true.^] For other cases illustrative of the distinction between a mortgage and a conditional sale, the reader is referred to the authorities cited below.^ § 995. The Consideration as a Test. — Among the circum- stances which courts regard as of great weight in determining whether a sale absolute in its terms is or is not to be treated as a mortgage, is the adequacy or inadequacy of the consideration paid. If grossly inadequate, it is deemed a strong circum- stance in favor of regarding the transaction a mortgage, though it is not conclusive.* And where the evidence leaves it doubt- ful whether it is a mortgage or a contract for repurchase, courts incline to treat it as a mortgage.^ 1 Watkins v. Gregory, 6 Blackf. 113 ; Peterson v. Clark, 15 Johns. 205 ; Rice V. Rice, 4 Pick. 349. 2 Kerr v. Gilinore, 6 AVatts, 405 ; Brown v. Nickle, 6 Penn. St. 390 ; Woods v. Wallace, 22 Penn. St. 171 ; Wing r. Cooper, 37 Vt. 169, 182j Kunkle w. Wolfers- berger, 6 Watts, 126 ; Haines v. Thomson, 70 Penn. St. 434. 438. 8 Hiester v. Maderia, 3 W. & S. 384 ; Waters v. Randall, 6 Met. 479-482 ; 1 Powell, Mortg. 138 a; Verner v. Winstanley, 2 Sch. & L. 393 ; Luckettv. Towns- end, 3 Tex. 119 ; Baker v. Thrasher, 4 Denio, 493 ; Slowey v. McMurray, 27 Mo. 113 ; Burgett v. Osborne, 172 111. 227; s. c. 50 N. E. Rep. 206 ; Kilgour v. Scott, 86 Fed. Rep. 39 ; Timmons v. Center, — Ky. — ; s. c. 43 S. W. Rep. 437. * Holmes v. Grant, 8 Paige, 243 ; Conway v. Alexander, 7 Cranch, 218 ; Todd V. Hardie, 5 Ala. 698 ; English v. Lane, 1 Port. (Ala.) 328 ; West v. Hendrix, 28 Ala. 226; Moss v. Green, 10 Leigh, 2.51 ; Vernon v. Bethell, 2 Eden, Ch. 110; Oldham v. Halley, 2 J. J. Marsh. 113 ; Edrington v. Harper, 3 J. J. Marsh. 353 ; Bennett v. Holt, 2 Yerg. 6 ; Davis v. Stonestreet, 4 Ind. 101 ; Sellers v. Stalcup, 7 Ired. Eq. 13 ; Kemp v. Earp, id. 167 ; Elliott v. Maxwell, id. 246 ; Russell v. Southard, 12 How. 139 ; Reed v. Reed, 75 Me. 264 ; Villa v. Rodriguez, 12 Wall. 323 ; Coyle v. Davis, 116 U. S. 108. And the fact that advantage was taken of the debtor's necessities to exact usurious interest and procure the deed will be taken into consideration. Lewis v. Wells, 85 Fed. Rep. 896. ^ Skinner v. Miller, 5 Lit. 84 ; Ward v. Deering, 4 Mon. 44 ; Wilkins v. Seais, id. 343 ; Desloge v. Ranger, 7 Mo. 327 ; Crane v. Bounell, 2 N. J. Eq. 264; Scott 52 MORTGAGES. § 996. No Defeasance to a Stranger. — A further requisite of what would be considered a suflScient defeasance in form to convert au absokite deed into a mortgage, is that it should be made to the grantor himself ; if to a stranger, or to the grantor and a stranger, it would not have that effect ;i as where a clause in the deed of grant gave a stranger a right to redeem by paying a certain sum of money, agreeably to a bond given by the grantee to this stranger, it was held not to constitute a mortgage of which the obligee could avail himself ; ^ though if the grant be by the husband and wife of the wife's estate, a defeasance made to her alone would constitute it a mortgage.^ If a deed clearly appears upon its face to be a mortgage, parol evidence is not admissible to show that it was a conditional sale only, and not a mortgage.* § 997. Secret Defeasances and Bona Fide Purchasers. — Ques- tions as to the effect of parol agreements, or separate instru- ments upon deeds absolute in their terms, can only arise between the parties or purchasers with notice. In some States defeasances are required to be recorded, which then raise constructive notice to all persons interested.^ But without actual or constructive notice of an existing defeasance, a bona fide purchaser, or attaching creditor of an estate, is not affected by its having been made.^ Nor will the continued possession by the grantor of land after the making of his deed be notice of a defeasance held by him which is not recorded.'^ V. Henrj', 13 Ark. 112; Turnis])eed v. Cunningham, 16 Ala. 501 ; Cotterell y. Long, 20 Ohio, 464 ; Swetland v. Swetland, 3 Mich. 482 ; Gillis v. Martin, 2 Dev. Eq. 470; Eaton v. Green, 22 Pick. 526 ; Coote, Mortg. (Ara. ed.) 57 and note. 1 Flagg V. Mann, 14 Pick. 467 ; 2 Bl. Com. 327 ; Low v. Henry, 9 Cah 538. 2 "Warren i'. Lovis, 53 Me. 463. 3 Jilills V. Darling, 43 Me. 565. * Kerr v. Gilmore, 6 Watt.s, 405 ; "Wood.s v. "Wallace, 22 Penn. St. 171 ; Kunkle V. Wolfersberger, 6 Watts, 126 ; Haines v. Thomp.son, 70 Penn. St. 434, 438. 5 Tomlinson v. Monmouth Ins. Co., 47 Me. 232. 6 Walton V. Cromley, 14 Wend. 63 ; Man. Bk. v. Bk. of Penn., 7 W. & S. 335 ; Brown v. Dean, 3 Wend. 208 ; James v. Johnson, 6 John.s. Ch. 417 ; Jaques v. Weeks, 7 Watts, 261 ; Friedley v. Hamilton, 17 S. & R. 70 ; Dey v. Dunham, 2 Johns. Ch. 182 ; Harrison v. Trustees, etc., 12 Mass. 456 ; Purrington v. Pierce, 38 Me. 447; Jackson v. Ford, 40 Me. 381 ; AVyatt v. Stewart, 34 Ala. 716; Hender- son V. Pilgrim, 22 Tex. 464, 475 ; Knight v. Dyer, 57 ]Me. 174. T Kunkle v. AVolfersberger, 6 Watts, 126 ; Newhall v. Pierce, 5 Pick. 450; Hen- nessey V. Andrews, 6 Gush. 170; Crassen v. Swovelaad, 22 Ind. 427. NATURE AND FORM OF MORTGAGES. 53 § 998. Once a Mortgage always a Mortgage. — If the trans- action between the jjarties be in fact a mortgage, its character cannot be affected or changed by any agreement entered into at the time between them as to redemption or the other in- cidents of a mortgage. The right of redemption attaches as an inseparable incident created by law, and cannot be waived by agreement.^ A mortgage, moreover, depends for its vitality upon the law in force at the time of its execution.^ The doc- trine universally applicable is, if once a mortgage, always a mortgage. Nor can it be made otherwise by any agreement of the parties made at the time of the execution of the deed, nor upon any contingency whatever. Equity will not admit of a mortgagor embarrassing or defeating his right to redeem the estate by any agreement which he may be induced to enter into in order to effect a loan.^ § 999. Destruction of Defeasance ; Bona Fide Purchaser. — This does not preclude any subsequent hona fide agreement in re- spect to the estate between the parties ; and where a mortgagor voluntarily cancelled the instrument of defeasance whicli he held, it gave to the deed which it was intended to defeat the effect of an original absolute conveyance as between the parties.* [The doctrine, however, that a mortgage deed may be converted into an absolute conveyance by a destruc- 1 Wing V. Cooper, 37 Vt. 169, 181 ; Willets v. Burgess, 34 111. 494. 2 Olson V. Nelson, 3 Minn. 53. 3 Clark V. Henr}', 2 Cow. 324 ; Miami Ex. Co. v. U. S. Bk., Wright, 253 ; Eaton V. Whiting, 3 Pick. 484; Vernon v. Bethell, 2 Eden, Ch. 110; 1 Spence, Eq. Jur. 693 ; 2 Fonbl. Eq. 263 ; Henry v. Davis, 7 Johns. Ch. 40; 2 Crabb, Real Prop. 847 ; Waters v. Randall, 6 Met. 479 ; Johnston v. Gray, 16 S. & R. 361 ; Co. Lit. 205 a, n. 96 ; Coote, Mortg. 14 ; Willett v. Winnell, 1 Vern. 488 ; Story, Eq. Jur. §§ 10, 19 ; Bay ley v. Bailey, 5 Gray, 505 ; Thompson v. Davenport, 1 Wash. (Ya. ) 125; Davis i'. Stonestreet, 4 Ind. 101; Rankin v. Mortiraere, 7 Watts, 372 ; Lee v. Evans, 8 Cal. 424 ; Nugent v. Riley, 1 Met. 117 ; Newcomb v. Bon- ham, 1 Vern. 7 ; Howard v. Harris, 2 Ch. Cas. 147; Blackburn v. Warwick, 2 Yo. & C. Ex. 92 ; Langstaffc v. Fenwick, 10 Yes. 405 ; Baxter *;. Cliild, 39 Me. 110 ; Linnellv. Lyford, 72 Me. 280; Batty u. Snook, 5 Mich. 231; Wms. Real Prop. 353 ; Vanderhaize v. Hugues, 13 N. J. Eq. 244; Wynkoop v. Cowing, 21 111. 570; Preschbaker v. Feaman, 32 111. 475 ; Oldenbaugh v. Bradford, 67 Penn. St. 96 ; Poston V. Jones, 122 N. C. 536 ; s. c. 29 S. E. Rep. 951. * Trull V. Skinner, 17 Pick. 213 ; Harrison v. Trustees, 12 Mass. 456 ; Mar- shall V. Stewart, 17 Ohio, 356 ; Vennum v. Babcock, 13 Iowa, 194 ; Falls v. Con- way Ins. Co., 7 Allen, 46 ; Rice t;. Bird, 4 Pick. 350, note; Green v. Butler, 26 Cal 595. 54 MORTGAGES. tion of the defeasance could hardly be extended to a Hen theory mortgage ; for, by the delivery of such a mortgage, the grantee acquires no estate in the land ; and the mere destruction of the defeasance, wliatever the intention, could not operate to give him one.] But where a vendee of land mortgaged it back to his vendor, and then gave up and cancelled his deed which had not been recorded^ it was held that, so long as the mort- gagee retained his mortgage, this did not operate as a reconvey- ance by the mortgagor to the mortgagee. ^ The mortgagee may always purchase the mortgagor's right of redemption, and thus acquire an absolute title. This, however, is always regarded with great jealousy by courts of equity, and will be avoided for fraud actual or constructive, or for any unconscionable advan- tage taken by the mortgagee in obtaining it.^ It will be sus- tained if perfectly fair and for an adequate consideration.^ § 1000. Agreements limiting Right to redeem. — So careful is equity to guard against any attempt to limit or curtail the rights of mortgagors in respect to the redemption of estates by any contemporaneous agreement, that it will re- lieve against any such agreement if it limits the redemption to a certain time,^ or restricts it to a certain class of persons,^ or gives to the mortgagee, after default of the mortgagor, a right to purchase the estate at a particular sum,^ or to pay an increased rate of interest in order to redeem, if the debt is not paid at its maturity,'' or to pay interest upon the inter- est in arrear, as well as upon the principal, by making it a 1 Patterson v. Yeaton, 47 Me. 308 ; Nason v. Grant, 21 Me. 160 ; Lawrence v. Stratton, 6 Cash. 163. 2 Russell V. Southard, 12 How. 139, 154 ; Piatt v. McClure, 3 Woodb. & M. 151 ; Hyndman y. Hyndman, 19 Vt. 9; Green v. Butler, supra; Ford u. Olden, L. R. 3 Eq. 461; Mason v. Grant, 21 Me. 160; Carpenter v. Carpenter, 70 111. 457. 3 M'Kinstry v, Conly, 12 Ala. 678 ; Hicks v. Hicks, 5 Gill & J. 75; Sheckell V. Hopkins, 2 Md. Ch. Dec. 89 ; Holridge v. Gillespie, 2 Johns. Ch. 30 ; Wyn- koop V. Cowing, 21 111. 570. * Newcomb v. Bonhani, 1 Vern. 7 ; Spurgeon v. Collier, 1 Eden, Ch. 55. So if it postpones it unreasonably. Cowdry v. Day, 1 Gif. 316. 5 Howard v. Harris, 2 Ch. Cas. 147 ; Johnston v. Gray, 16 S. & R. 361 ; Jason V. Eyres, 2 Ch. Cas. 33. 6 Willett V. Winnell, 1 Vern. 488 ; "Waters v. Randall, 6 Met. 479. But such an agreement, if subsequent, is valid. Austin r. Bradley, 2 Day, 466. 7 Coote, Mortg. 511 ; Mayo v. Judah, 5 Munf, 495 ; Halifax v. Higgens, 2 Vern. 134. NATURE AND FORM OP MORTGAGES. 55 part of the principal,^ or to pay a sum over and above the principal and interest in order to redeem.^ It was also laid down in one case that equity would relieve against a condi- tion in a mortgage whereby a debt due by instalments should be payable at once upon failure to pay any instalment as it should fall due.^ As the debt due was not on interest, the effect of making it all due and payable, upon the failure to pay any instalment, would be loss of the interest upon the debt to the obligee, between the times of payment of the in- stalment and of the subsequent instalments, by the way of a penalty, against which equity will grant relief. But where a bond was payable with interest on time, with a proviso that, if the interest is not promptly paid, the principal shall be at once due and collectible, it was held it might be enforced.^ And the better opinion seems to be, that such agreement would be held valid both at law and in equity ; and, if by the terms of the mortgage the whole debt is at once due upon a failure to pay the interest or instalment, it needs no action of the holder of the mortgage by way of election to make it payable,^ whereas if, by its terms, the debt is to be due in such a contingency, at the election of the mortgagee, he is to signify such election by notice to the mortgagor before pro- ceeding to enforce the mortgage for the whole debt.^ Equity, however, will save the mortgagor from the consequences of such non-payment if his failure to pay was due to the fraud of the mortgagee, or if he has been ready and has offered to pay the same to the mortgagee ; although the mortgage had been previously assigned to a third party, if not informed who was then the holder of the mortgage ; ^ but if the default was due 1 Blackburn v. Warwick, 2 Yo. & C. Ex. 92. See McGready v. McGready, 17 Mo. 597 ; Chambers v. Goldwin, 9 Ves. 254, 271. 2 Jennings v. Ward, 2 Vern. 520. 8 Tiernan v. Hinman, 16 III. 400. * Ottawa Plank Road v. Murray, 15 111. 336. See post, § 1111. 6 Ferris v. Ferris, 28 Barb. 29 ; Valentine v. Van Wagner, 37 Barb. 60 ; Basse V. Gallegger, 7 Wis. 442, 446 ; Gowlett v. Hanforth, 2 W. Bl. 958 ; James v. Thomas, 5 B, & Ad. 40 ; People v. Sup. Court, 19 Wend. 104 ; Noyes v. Clark, 7 Paige, 179. 6 Basso V. Gallegger, 7 Wis, 442, 446. T Noyes v. Clark, supra. See also Mitchell v. Bumham, 44 Me. 286 ; James v. Johnson, 6 Johns. Ch. 417; Wilcox v. Allen, 36 Mich. 160; Hale v. Fatten, 60 N. Y. 233. 66 MORTGAGES. to his own neglect equity will not relieve him.^ Where there was a rate of interest fixed upon the loan less than the lawful interest, with a proviso that if not paid by a certain time the interest should be at another rate, it was held to be a valid security for such increased rate.^ If a mortgagee avail him- self of his position and the necessities of the mortgagor to gain any collateral advantage out of the estate, such as a lease, equity will relieve against it.^ § 1001. Priority of Purchase-money Mortgages. — Although it may be assumed that, where two creditors obtain simulta- neous liens upon a debtor's property, they become tenants in common from the impossibility of discriminating in regard to their respective equities,^ yet where the same grantor made two mortgages simultaneously, one to his vendor to secure the purchase-money and the other to a third person to secure an independent debt, it was held that the mortgage first men- tioned took precedence of the other in its lien upon the premises.^ Otherwise they would share pro rata in propor- tion to their respective debts. ^ So where a purchaser secures the purchase-money either to the vendor or to one who pays it, by a mortgage simultaneous with his deed, it will take precedence of an outstanding judgment against him.'' § 1002. Mortgages to secure Support. — There is a class of mortgages which are somewhat different from those ordinarily in use, and yet vary so much in their terms as to render it difficult to reduce them within any general and uniform rule ; and that is, mortgages conditioned to support the mortgagee or some other person. These are sometimes made with a collateral bond or contract on the part of the mortgagor, which is referred to in the condition of the deed, and some- times by a recital only in the deed. From the general tenor of the cases, some few rules and principles seem to have been 1 Bennett v. Stevenson, 53 N. Y. 508. 2 Brown v. Barkham, 1 P. Wms. 652. 8 Gubbins v. Creed, 2 Sch. & L. 214 ; Holridge v. Gillespie, 2 Johns. Ch. 30. * Ante, § 878. s Clark V. Brown, 3 Allen, 509. 6 Aldrich v. Martin, 4 R. I. 520. See Gilman v. Moody, 43 N. H. 239, 243. Parol evidence competent to show which of two or more deeds simultaneously executed was intended to take precedence. "> Curtis V, Root, 20 111. 53. NATURE AND FORM OF MORTGAGES. 57 settled which may he regarded as of general application. Thus, in those States, where the ohligation binds the mort- gagor, his heirs, executors, and administrators, but says nothing of assigns, it is held to be a personal duty, and it is not competent for the mortgagor to convey his estate, nor can his creditors levy upon it, so as thereby to have the pur- chaser or creditor acquire a right to perform the condition and save the estate. ^ And if the mortgagor fails to do this in his lifetime, or his heirs and executors after his death, the mortgagee may enter and take possession of the mortgaged premises for condition broken. ^ Such a contract and mort- gage are not the subject of assignment, for the reason that it can only be performed to and with the mortgagee, person- ally.^ But if the mortgagee assent to the transfer by the mortgagor, the assignee would have the same right to pos- session and be subject to the same liabilities as the mortgagor himself.^ And where the condition was to pay a debt of a certain amount by supporting the mortgagee a certain length of time, the mortgagee may insist upon the support being pro- vided, and it is not at the election of the mortgagor to do this or pay the money. ^ But where the condition was to pay 82,500 or support the mortgagee, it was for the mortgagor to elect ; and when he has elected, he is concluded by it.^ And in order to have a demand for support on the part of the mort- gagee effectual, he must be ready and offer to receive it at a reasonably convenient place, if none is fixed in the agreement of the parties.^ In the second place, this duty of furnishing support to the mortgagee, where the consideration of the obli- gation is the conveyance by the mortgagee to the mortgagor of the premises mortgaged, ordinarily implies, in the absence of any express provision, and it would be so con- strued, that the mortgagor should retain possession until condi- 1 Bryant v. Erskine, 55 Me. 153 ; Dearborn v. Dearborn, 9 N. H. 117. 2 Flanders v. Lamphear, 9 N. H. 201 ; Eastman v. Batchelder, 36 N. H. 141. See Clinton v. Ely, 10 Me. 292. 8 Bethlehem v. Annis, 40 N. H. 34. * Bryant v. Erskine, 65 Me. 156, 157 ; Daniels v. Eisenlord, 10 Mich. 454 ; Mitchell V. Burnham, 57 Me. 314, 322. 6 Hawkins v. Clermont, 15 Mich. 511 ; Evans v. Norris, 6 Mich. 369. 6 Bryant v. Erskine, supra ; Soper v. Guernsey, 71 Pcun. St. 219, 224. 7 Holmes v. Fisher, 13 N. H. 9. 58 MORTGAGES. tion broken.^ In the next place, unless there is something in the deed restricting the place at which the support shall be furnished, the mortgagee is not bound to receive it at any particular place, but may require it to be furnished at any reasonable distance from the mortgaged premises, provided it do not occasion to the mortgagor unreasonable additional expense and trouble to that of furnishing it upon the mort- gaged premises. It should be at a reasonable place for both parties. 2 Where the condition was for the support of the grantor by the grantee upon the granted premises, it did not imply that the grantor was to receive this in the family and at the table of the grantee, although he lived in fact upon the premises.^ If the support to be furnished be to others than the mortgagee, and they survive him, his executors or admin- istrators are the parties to enforce the mortgage for the benefit of such survivors.* And if there be a breach of condition by failure to furnish such support, equity will allow the mort- gagor or his assigns to redeem by paying in money an equiva- lent for the support thus withheld.^ 1 Flanders v. Lamphear, supra; Wales v. Mellen, 1 Gray, 512 (overruling Col- man V. Packard, 16 Mass. 39) ; Rhoades v. Parker, 10 N. H. 83 ; Dearborn v. Dearborn, 9 N. H. 117; Bryant r. Erskine, supra; Soper v. Guernsey, 71 Penn. St. 219, 224. 2 Wilder v. Whittemore, 15 Mass. 262 ; Pettee v. Case, 2 Allen, 546 ; Thayer V. Richards, 19 Pick, 398 ; Fiske v. Fiske, 20 Pick. 499 ; Flanders v. Laniphear, supra. 8 Hubbard v. Hubbard, 12 Allen, 586. 4 Marsh v. Austin, 1 Allen, 235 ; Gibson v. Taylor, 6 Gray, 310 ; Holmes v. Fisher, 13 N. H. 9. 6 Wilder v. Whittemore, 15 Mass. 262 ; Fiske v. Fiske, 20 Pick. 499 ; Austin V. Austin, 9 Vt. 420 ; Bethlehem v. Annis, 40 N. H. 34 ; Bryant v. Erskine, 65 Me. 156. MORTGAGES WITH POWERS OP SALE. 69 CHAPTER XLII. MORTGAGES WITH POWERS OP SALE, § 1003. Such mortgages valid. 1004. Mortgagee a trustee — Execution of power. 1005. Nature of the power. 1006. Power, how far assignable. 1007. Mortgagor need not join in conveyance. 1008. Disposition of surplus after sale. 1009. Mortgagee acts as trustee. 1010. Execution of the power. 1011. Mortgagee as purchaser. 1012. Good faith required of mortgagee. 1013. Execution of power — Statute regulations. 1014. Power of sale works no other change in mortgage. 1015. No redemption after sale. 1016. Extinguishment of the power. § 1003. Such Mortgages valid. — It is now well settled that a mortgage may be made with a power of sale in the mort- gagee, in case the debt secured is not paid at a time pre- scribed, and that a sale made by virtue of such a power may create a valid and absolute estate in the purchaser. ^ And where a mortgagee, under a mortgage with a power of sale, sold and conveyed the estate to the mortgagor's wife, it was held to be as valid a sale as if she had not been thus con- nected. ^ And the power of sale may be valid, though it be not coextensive with the condition of the mortgage.^ So, 1 Wilson V. Troup, 7 Johns. Ch. 25; 2 Crabb, Eeal Prop. 848 ; Eaton v. Whit- ing, 3 Pick. 484; 2 Greenl. Cruise, 78, 79, n.; Croft v. Powel, Com. Rep. 603; Coote, Mortg. 124 ; id. 130, n. ; Longwith v. Butler, 3 Gilm. 32 ; Kinsley v. Ames, 2 Met. 29; Bloom v. Van Rensselear, 15 III, 503; Mitchell v. Bogan, 11 Rich. (S, C) 686 ; Smith v. Provin, 4 Allen, 516, 518; Walthall's Ex'rs v. Rives, 34 Ala. 91 ; Fanning v. Kerr, 7 Iowa, 450, 462. 2 Field V. Gooding, 106 Mass. 310 ; Hall v. Bliss, 118 Mass. 554, 560. 8 Butler V. Ladue, 12 Mich. 173. In Torrey v. Cook, 116 Mass, 163, it is held that the mortgagee cannot sell less than the whole title of the mortgagor and himself to the land mortgaged. Here the sale was only of an undivided half of the premises. But where there are three separate parcels in separate towns, a sale may be made of one only at first, Pryor v. Baker, 133 Mass. 459, 60 MORTGAGES WITH POWERS OF SALE. though the mortgage be for life only, as to one, his succes- sors and assigns, the power of sale contained in it may em- power the mortgagee to convey a fee in the premises. ^ The courts of Virginia were slow to admit the power, but in more recent cases have held, that, if the mortgagor acquiesces in the sale, he cannot disturb the purchaser. ^ In Vermont, the courts were reluctant to admit the principle of such a sale, and still hold that it "ought not to be recognized in any case, unless it is conveyed by an express grant, and in clear and explicit terms. "^ And chancery will interpose to prevent the exercise of such a power in an oppressive manner.* § 1004. Mortgagee a Trustee — Execution of Power. — In executing a power of sale, a mortgagee is the trustee of the debtor, and must act bona fide and adopt all reasonable modes of proceeding to render the sale most beneficial to the debtor.^ It is competent for the parties to fix the terms on which the sale is to be made ; and the terms of this power must be strictly pursued, or the sale will be void.^ A mere literal compliance with the terms of the power will, moreover, not be sufficient.'' § 1005. Nature of the Power. — Such a power is coupled with an interest, and is appendant to the estate, and irrevo- 1 Sedgwick v. Laflin, 10 Allen, 430. 2 Chovvning v. Cox, 1 Rand. 306 ; Taylor v. Chowning, 3 Leigh, 654. 8 Wing V. Cooper, 37 Vt. 184. * Matthie v. Edwards, 2 Coll. 465; Piatt v. ]\IcClure, 3 Woodb. & M. 151 ; 2 Greenl. Cruise, 79, n. 6 Howard v. Ames, 3 Met. 308; Robertson v. Norris, 1 Giffard, 421 ; Jenkins V. Jones, 2 Giffard, 99; Dexter i>. Shepard, 117 Mass. 480; Hood v. Adams, 124 Mass. 481, 484 ; Long v. Richards, 170 Mass. 120 ; s. c. 48 N. E. Rep. 1083 ; s. c. 64 Am. St. Rep. 281; Fenton v. Torrey, 133 Mass. 138. And is liable in damages for his failure. Ibid. Hence, also, if he buys himself he is bound, though he refuses to execute the deeds. Hood v, Adams, S2ipra ; Muhlig v, Fiske, 131 Mass. 110. 6 Longwith v. Butler, 3 Gilm. 32, 39; Cooper v. Croslw, 3 Gilm. 506; Hoff- man V. Anthony, 6 R. L 282 ; Roarty v. Mitchell, 7 Gray, 243; Smith v. Provin, 4 Allen, 516 ; Bradley v. Chester V. R. R., 36 Penn. St. 141, 151. The omission which avoided the sale in the case of Smith v. Provin was that of an affidavit and record of the sale as provided in the deed. But where the sale is in good faith, omitting to state the amount due on a prior mortgage, or the street number, if not mentioned in the mortgage, or that there has been a default, does not invalidate it. Mod. L. Ho. Ass'n v. Boston, 114 Mass. 133. ^ Thompson v. Heywood, 129 Mass. 401. MORTGAGES WITH POWERS OF SALE. 61 cable. It consequently passes with the estate by assignment, and is unaffected by the mortgagor's bankruptcy or death. The estate in such case passes to the mortgagee like a devise to executors, with power of sale.^ Such a sale, if made by the mortgagee in his own name, being under a power coupled with an interest, would be valid. So if the mortgagee assigns his mortgage, his assignee may sell in his own name. And if a wife join with her husband in a mortgage of his land, with a power of sale, and the sale be made, it will bar her dower. 2 If a mortgage be made to a married woman, with a power of sale upon the non-payment of the debt, and she make the sale in her own name, without joining her husband, it would be a good execution of the power, and a valid convey- ance. It is not her real estate which is sold under these cir- cumstances.^ And if the power in the mortgage authorizes the mortgagee to sell in his own name, and the mortgagor die before the sale, the mortgagee may sell in his own name.* In Texas, such a power determines upon the death of the mortgagor. But in Iowa it survives to the administrator of the mortgagee, if named in the mortgagee's deed.^ Nor is the power of sale by a mortgagee within the rule against perpetuities.^ § 1006. Power, how far assignable. — If a mortgagee, with 1 Bergen v. Bennett, 1 Caines' Cas. 1 ; AVilson v. Troup, 2 Cow. 195, 236 ; Hall V. Bliss, 118 Mass. 554. That such a power is irrevocable, and may be exercised after the death of mortgagor, see also Beatie v. Butler, 21 Mo. 313, 319; Hunt v. Rousnianier, 8 Wheat. 174 ; Hannah v. Carrington, 18 Ark. 85 ; Wilburn v. Spof- ford, 4 Sneed, 698, 704 ; Bonney y. Smith, 17 111. 531 ; Jefifersonville Assoc, v. Fisher, 7 Ind. 699, 702 ; Robertson v. Gaines, 2 Humph. 367 ; Strother v. Law, 54 111. 413. 2 Strother v. Law, 54 111. 413, 418 ; Mason v. Ainsworth, 58 111. 163. 3 Cranston v. Crane, 97 Mass. 459, 465. * Varnum v. Meserve, 8 Allen, 158. 6 Robertson v. Paul, 16 Tex. 472 ; Fanning v. Kerr, 7 Iowa, 450 ; Collins v. Hopkins, id. 463. The language of the court of Pennsylvania upon this sub- ject, after stating that such a power has come into use tliere within a few years, is, "It being a power annexed to the estate and coupled with an interest, it is necessarily irrevocable. It becomes a part of the mortgage security, and vests in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid." " The sale that is made in pursuance of it is virtually a foreclosure of the mortgagor's equity of redemption." Bradley v. Chester V. R. R., 36 Penn. St. 151 ; Brisbane v. Stoughton, 17 Ohio, 482. 6 Gilbertson v. Richards, 5 H. & N. 453, 459 ; Briggs v. Oxford, 1 De G. M. & G. 363. 62 MORTGAGES WITH POWERS OF SALE. such a power, conveys the whole of his estate, the power passes with it. But being in its nature an indivisible thing, if he convey a part only, he does not confer a power pro tanto upon his grantee. In such a case, the mortgagee may still execute the power, so far as title is concerned, but not so as to interfere with the possession which he has parted with to another; that is, the grantor shall not defeat his own grant. The case put by way of illustration is, a lease by a mortgagee, who has a power of sale, of a part of the mortgaged premises, and a subsequent sale by him of the whole estate.^ In Illi- nois, and perhaps in other States, where the mortgage creates a lien only, while the transfer of the mortgage note will carry the power of sale, if the mortgage in terms includes the as- signee, ^ a mere assignment of the mortgage, or of the debt secured by it, will only pass an equitable right, and the power must still be exercised by the mortgagee.^ An agreement by the mortgagor with the assignee of such a mortgage to pay a different sum, and at a different time from that stipulated in the mortgage, was held not to impair a right of sale under the power contained in the mortgage.* § 1007. Mortgagor need not join in Conveyance. — Such a mortgagee, therefore, or his assigns, has no occasion to join the mortgagor in a conveyance of the estate. And where a purchaser under such a sale refused to complete it, on the ground that the mortgagor had not concurred in making it, the coui't, upon a bill filed, decreed a specific performance; and where such purchaser, in a bill for specific performance, made the mortgagor a party, the court dismissed the biU.^ If, however, the power be not in the deed itself, but in a separate instrument, the purchaser might insist that the mortgagor should be a party to the conveyance.^ 1 Wilson V. Troup, 2 Cow. 195, 236 ; Jencks ;;. Alexander. 11 Paige, 619. 2 Pardee y. Lindle}', 31 111. 174; Olds v. Cummings, id. 188; Strother ?;. Law, 54 in. 413. 3 Hamilton v. Lubukee, 51 111. 415 ; Mason v. Ainsworth, 58 111. 163 ; but see Stanley v. Kenipton, 59 Me. 472. * Young V. Koberts, 15 Beav. 558. s Corder v. Morgan, 18 Yes. 344 ; Clay v. Sharpe, cited id. 345, n., Sum- ner's ed. 6 Croft V. Powel, Com. Rep. 603. MORTGAGES WITH POWERS OF SALE. 63 § 1008. Disposition of Surplus after Sale. — If upon making sale of the estate under a power in a mortgage there is a surplus, after satisfying the debt, the same will be in the mortgagee's hands as trustee for him to whom the equity of redemption would have belonged. Consequently, if the mortgagor were dead when the sale was made, his heir, and not his executor, might claim the surplus.^ And a purchaser of the mortgagor's equity of redemption would be entitled to such surplus.^ But if there are several mortgages, and the sale be made upon the first of these, the holder of the equity of redemption could only claim the surplus, if any, which remained after satisfying all the existing mortgages."^ So a sale by a junior mortgagee, though voidable by the holder of the equity or by a later mortgage, if it includes the amount due on an elder mortgage,* will not entitle such holder of the equity or later mortgage to surplus before the elder mort- gage is satisfied.^ But a purchaser would not be obliged to see to the application o£ the purchase-money. In one case, the wife of the owner of an equity of redemption of an estate which had been mortgaged by his grantor, with power of sale, which power had been executed, and a surplus remained in the mortgagee's hands, was held not to be entitled to have any part of such surplus secured to her by virtue of her in- choate right of dower. ^ But the prevailing rule seems to be otherwise, and her share will be adjusted in equity on the basis of her chance of survivorship.'^ And though the mort- gagor has a right to insist upon being paid in money any sur- plus arising from the sale of the premises, after paying the 1 2 Cruise, Dig. 79, § 45 ; Wright v. Rose, 2 Sim. & S. Ch. 323. See Varnum V. Meserve, 8 Allen, 158, as to dividing the proceeds of such sale among parties interested. 2 Buttrick v. Wentworth, 6 Allen, 79 ; or the lien of an attacliing creditor, Gardner v. Barnes, 106 Mass. 505 ; Wiggin v. Heyward, 118 Mass. 514. 8 Andrews v. Fiske, 101 Mass. 422 ; Cook v. Basley, 123 Mass. 396 ; and a junior mortgagee may sue the prior mortgagee for his part of the surplus, ibid. 4 Donohue v. Chase, 130 Mass. 137. 6 O'Connell v. Kelly, 114 Mass. 97 ; Aklen v. Wilkins, 117 Mass. 216 ; Mor- ton V. Hall, 118 Mass. 511. 6 Newhall v. Lynn Sav. Bk., 101 Jilass. 428. 7 Ante, §§ 377, 479. 64 MORTGAGES WITH POWERS OP SALE. incumbrance, the mortgagee may sell upon credit, accounting for sucli surplus in money, ^ § 1009. Mortgagee acts as Trustee. — The same rules in equity apply in respect to sales made by mortgagees under powers as are applied in sales by trustees, so far as having a right themselves to become purchasers is concerned. [A mortgagee cannot purchase at his own sale ^ so as to extinguish the equity of redemption, even though the sale be at public auction; 2 unless he is given permission by statute, or by the terms of the mortgage;*] and it seems that an agreement of pre-emption made simultaneously with the mortgage, whereby the mortgagor engaged that, if the estate was sold, the mort- gagee should have the pre-emption, may be good and enforced by the court. ^ And courts of equity will set aside a sale under a mortgage, on account of fraudulent mismanagement, unfair conduct, or departure from the power on the part of the mortgagee.^ Thus, where the power was to sell the prem- ises and all benefit and equity of redemption, and the sale was of the equity alone, it was held to be void as not within the power. '^ § 1010. Execution of the Power. — The assignee of such a mortgage may execute the power without having recorded the assignment. And if he enter under the mortgage, and re- ceive rents with a view to foreclose it, but afterwards sells the estate under his power, it will not affect the title of a purchaser under such a sale who is not cognizant of the fact of such entry, though the rents thus received, if they had been applied, would have exceeded the debt. Nor would a tender of the debt render a subsequent sale by the mort- gagee void in the hands of an innocent purchaser, unless 1 Bailey v. /Etna Ins. Co., 10 Allen, 286. 2 Shew V. Call, 119 N. C. 450 ; s. c. 26 N. E. Rep. 33 ; s. c. 56 Am. St. Eep. 678. ^ Hyndman v. Hj'ndman, 19 Vt. 9. * Bergen v. Bennett, 1 Caines' Cas. 1 ; Mutual Loan & B. Co. v. Haas, 100 Ga. Ill ; s. c. 27 S. E. Rep. 980 ; s. c. 62 Am. St. Eep. 317 ; Hall v. Bliss, 118 Mass. 554. 5 Orby V. Trigg, 2 Eq. Cas. Abr. 599, § 24. 6 Longwith v. Butler, 3 Gilm. 32 ; Drinan v. Kichols, 115 Mass. 353, where no notice was given to a known assignee. 7 Fowle V. Merrill, 10 Allen, 350. MORTGAGES WITH POWERS OF SALE. 65 such tender were at once followed by proceedings to redeem the estate. The mortgagor, under such circumstances, should attend the sale, and give notice of the tender. Nor could he object to the sale, on the ground that the mortgagee was the purchaser, if the estate had, in the mean time, passed into the hands of an innocent purchaser.^ If the debt secured by the mortgage be tendered when it falls due, and before con- dition broken, the power is thereby extinguished. But a tender after condition broken does not affect the right in the mortgagee to make a sale under his power, unless the mort- gagor, after having made such sale, shall have commenced a bill in equity to redeem the estate. ^ And an innocent pur- chaser will not be affected by a trustee, who in his deed has a general power of sale, violating any restrictions imposed upon him unless known to such purchaser.^ [But unless the power has come into being through default or breach of con- dition of the mortgage, even a bona fide purchaser for value will acquire no title.*] A power to sell, in such cases, in- cludes that of executing a proper deed to convey the estate.^ And if the terms of the power be to make the sale " according to law," it will be understood as the law in force when the sale is made, rather than the one in force when the mortgage was executed.^ The power must be strictly pursued as to time, place, and manner of sale, or the sale will be void.'^ § 1011, Mortgagee as Purchaser. — If the sale is made in 1 Montague v. Dawes, 12 Allen, 397 ; s. c. 14 Allen, 364. So it is no defect in the sale that the mortgagor did not see the advertised notice of foreclosure, or that a cash deposit was required at the sale, though not previously stated. Pope v. Burrage, 115 Mass. 282 ; Model L. Ho. Ass'n v. Boston, 114 Mass. 133 ; King v. Bronson, 122 Mass. 122 ; nor that the sale, if otherwise fair, brought an inadequate price, ibid ; Wing v. Hayford, 124 Mass. 249. 2 Cranston v. Crane, 97 Mass. 459, 465. 8 Beatie v. Butler, 21 Mo. 313. * Rogers v. Barnes, 169 Mass. 179; s. c. 47 N. E. Rep. 602 ; s. c. 38 L. R. A. 145. 6 Fogarty v. Sawyer, 17 Cal. 589. 6 James V. Stull, 9 Barb. 482 ; Conkey v. Hart, 14 N. Y. 22 ; Heyward v. Judd, 4 Minn. 483. '' Strother v. Law, 54 Til. 413, 418 ; Hall t'. Towne, supra. Thus a junior mort- gagee has no right to sell except subject to the prior mortgages, and a sale at which he requires that they shall be paid off is void. Donohue v. Chase, 130 Mass. 137. VOL. II. — 5 66 MORTGAGES WITH POWERS OF SALE. good faith by an officer of the law, it seems that the mort- gagee may himself be the purchaser. But if, as trustee of the mortgagor, as he would be, acting under a power of sale to him as mortgagee, he sell the estate, directly or through bis own agent, and directly or indirectly become the pur- chaser, the mortgagor may, if he sees fit, avoid such sale through the intervention of a court of equity. But the sale will be good until thus avoided.^ But a mortgagee under a power of sale has no right to purchase the estate, unless there be an agreement to that effect in the mortgage itself; and this restriction extends to his agent, assignee, and trustee ^ (and see ante^ § 1009). The mere purchase by the mortgagee of the mortgaged estate from the one who bids it off at his sale will not affect the validity of his title. But the mort- gagee with a power must exercise it in a provident way, with a due regard to the rights and interests of the mortgagor in the surplus money to be produced by the sale. If he uses his power for any other purpose than to secure repayment of his mortgage-money, as, for instance, to exclude the mortgagor from the premises, for ulterior purposes in the mortgagee or those for whom he acts, it would be a fraud, for which the court would set aside the sale, and permit the mortgagor to redeem. And in the case cited below, this was done after a lapse of fifteen years, the property sold having been certain shares in the stock of the " Railway Times. " ^ And similar doctrines are maintained in respect to the sale of real estate in Downes v. Grazebrook, where the Chancellor set aside a sale by a mortgagee, where the purchase was made by his solicitor, "although there was not the slightest ground for imputing to the defendant either fraud, oppression, or harsh- ness of conduct, towards the plaintiff. " * 1 Downes v. Grazebrook, 3 Meriv. 200, 207 ; Ramsey v. Merriam, 6 Minn. 168 ; Blockley v. Fowler, 21 Cal. 326 ; Davoue v. Fanning, 2 Johns. Ch. 252 ; Michond V. Girod, 4 How. 503, 553 ; Scott v. Freeland, 7 Sm. & M. 409 ; Jackson v. "Walsh, 14 Johns. 407 ; Patten v. Pearson, 57 Me. 428. 2 Hall V. Towne, 45 111. 493 ; Koberts v. Fleming, 53 111. 196, 200 ; Hall v. Bliss, 118 Mass. 554. 8 Robertson v. Norris, 1 Giff. 421, 424. * Downes v. Grazebrook, 3 Meriv. 200, 209. See also Jenkins v. Jones, 2 Giff. 99, 108. MORTGAGES WITH POWERS OF SALE. 67 § 1012. Good Faith required of Mortgagee. — If One is in- trusted to sell property by another, and directly or indirectly becomes himself the purchaser at such sale, it is, ipso facto^ so far a fraud that any one interested in it, as cestui que trust, may avoid it at his election. This may be done in respect to sales by mortgagees except in cases provided for by statute, the mortgagor still having a right to redeem as before the sale if he elects so to do. ^ By the statutes of several of the States the mortgagee may himself be the purchaser, or he may secure this privilege to himself by the terms of the power of sale. 2 And if he purchases, this is in itself a pay- ment pro tanto of the note, though he refuses to execute a deed.^ But the mortgagee in such case must exercise good faith and a careful regard to the interests of his principal, or a court of equity will set aside a sale and purchase made by him. When a party, who is intrusted with a power to sell, attempts also to become a purchaser, he will be held to the strictest good faith, and the utmost diligence for the pro- tection of the rights of his principal.* So where one having a mortgage upon a large and valuable estate, in order to fore- close it, under the law of New York, was about to sell it, and a junior mortgagee requested him to sell a part only of the estate which was sufficient to satisfy the first mortgage debt, and offered to bid and pay enough to satisfy the debt, but the mortgagee refused, and sold the whole, it was held to be an invalid sale.^ But upon a purchase by the mortgagee with- 1 Jennison v. Hapgood, 7 Pick. 1 ; Downes v. Grazebrook, svpra ; Howard v. Ames, 3 Met. 308 ; Middl. Bk. v. ilinot, 4 ilet. 325 ; Benham v. Rowe, 2 Cal. 387 ; Hyndman v. Hyndman, 19 Vt. 9 ; Dobson v. Racey, 3 Saiidf. Ch. 60 ; Waters V. Groom, 11 CI. & F. 684. Though in the following cases the courts held that such a sale and purchase could only be impeached by showing unfairness. Howards V. Davis, 6 Tex. 174 ; Blockley v. Fowler, 21 Cal. 326 ; Hamilton v. Lubukee, 51 111. 415. In Pvichards v. Holmes, 18 How. 143, the sale was made by an auctioneer, and the mortgagee bid through him. 2 Montague v. Dawes, 12 Allen, 397 ; Hall v. Bliss, 118 Mass. 554. 8 Hood V. Adams, 124 Mass. 481. * Montague v. Dawes, 14 Allen, 369; Dyer i;. Shurtleff, 112 Mass. 165 ; Long V. Richards, 170 Mass. 120 ; s. c. 48 N. E. Rep. 1083 ; s. c. 64 Am. St. Rep. 281, holding that a fraudulent purchase by the mortgagee at his own sale could, at the election of the mortgagor, be treated as a nullity, and sustaining a bill to redeem which asked no relief from the foreclosure. 6 Ellsworth V. Lockwood, 42 N. Y. 89, 96. 68 MORTGAGES WITH POWERS OF SALE. out such authority from the mortgagor, no one but the latter can complain ; ^ and whoever would object to such sale must do it within a reasonable time after it is made, or he may not do it at all; 2 and if neither a statute nor the terms of the power require the sale to be by public auction, a private sale will be as valid as one at auction.^ And where the mortgage was to secure several notes, and the sale was made for non- payment of the first, it had the effect to discharge the estate from any further liability on account of the other notes. ^ But where a mortgagee in possession under a power of sale sold a part of the promises for a sum larger than the amount then due upon the debt secured, it was held that he must apply the surplus upon the rest of his debt, or pay it over to the mortgagor.^ § 1013. Execution of Power — Statute Regulations. — In some of the States there are statute regulations in respect to the mode of making such sales ; and where that is the case,^ these must be complied with in order to make the sale valid. Thus it has been held in New York, that a private sale, with- out notice, would not bar the mortgagor's equity of redemp- tion, although in accordance with the terms of the power, being in a contravention of the statute requirements.^ But a failure to register the power, though required by the statute, does not invalidate the sale.'^ § 1014. Power of Sale works no other Change in Mortgage. — The insertion of a power of sale in a mortgage deed does not change or affect the mortgagor's right to redeem, so long as the power remains unexecuted,^ or the mortgage is not, as it 1 Edmondson v. Welsh, 27 Ala. 578 ; Benham v. Eowe, 2 Cal. 387. 2 Patten v. Pearson, 60 Me. 220 ; Hamilton v. Lubukee, 51 111. 415. 3 Davey v. Durrant, 1 De Gex & J. 535. * Smith V. Smith, 32 111. 198 ; and see Loomis v. Clambey, 69 Minn. i&2 -, s. c. 72 N. W. Rep. 707 ; s. c. 65 Am. St. Rep. 576. 5 Thompson v. Hudson, L. R. 10 Eq. 497 ; McDowel v. Lloyd, 22 Iowa, 448, 450. 6 Lawrence v. Farm. L. &Tr. Co., 13 N. Y. 200. ■^ Wilson V. Troup, 2 Cow. 195. In Michigan, the statute points out the meas- ures to be adopted in executing a power of sale in a mortgage, and provides that the mortgagor, after such sale, may redeem the land by paying what it was bid off for, within one year. Doyle v. Howard, 16 Mich. 264, 265. 8 Eaton V. Whiting, 3 Pick. 484 ; Turner v. Bouchell, 3 Har. & J. 99 ; Benham MORTGAGES WITH POWERS OF SALE. 69 may be, foreclosed in the ordinary manner. ^ Therefore, suing the mortgage debt, and recovering judgment upon it, does not impair the right in the mortgagee to sell the estate under a power of sale in the mortgage. ^ Nor does it stand in the way of foreclosing such mortgage in the ordinary mode by judicial process of foreclosure. ^ In Massachusetts there are special statute provisions in respect to foreclosing such mortgages by sale of the premises.* § 1015. No Redemption after Sale. — But when the sale has been made, the interest of the mortgagor is wholly divested, including all right of redemption.^ Thus, where a mortgagee in 1868, under a mortgage with a power of sale dated in 1866, made a sale and conveyance, it was held to give the purchaser a title prior to that of a deed made by the mortgagor in 1867.*^ And if a mortgaged estate be sold to satisfy an instalment of the debt secured by it, the estate is thereby discharged from the mortgage lien, and the purchaser acquires an absolute title to the same.'^ Nor does a conveyance by the mortgagor, and an exclusive possession by his grantee, work a disseisin as to the mortgagee, or affect his right to sell the premises under the power in his mortgage.^ In order, however, to pro- duce this effect, the essential requisites of the power must be complied with, since, unless that is done, the sale will not pass any title to the purchaser.^ This power of sale is a part V. Rowe, 2 Cal. 387 ; Michoud v. Girod, 4 How, 503, 556 ; Mapps v. Sharpe, 32 111. 13, 21. 1 Carradiue v. O'Connor, 21 Ala. 573. The power of sale being a cumulative remedy, not affecting the jurisdiction of chancery. Walton v. Cody, 1 Wis. 420 ; Cormerais v. Genella, 22 Cal. 116. 2 Hewitt V. Templeton, 48 111. 367. 3 First Nat, Ins. Co. v. Salisbury, 130 Mass. 303 ; Morrison v. Bean, 15 Tex. 267; Butler v. Ladue, 12 Mich. 173; 12 Am. Law Reg. 248. See Heyward v. Judd, 4 Minn. 483, 493-495. * Mass. Pub. Stat. c. 118, §§ 14-20 ; Childs v. Dolan, 5 Allen, 319. 5 Kinsley v. Ames, 2 Met. 29 ; Eaton v. Whiting, 3 Pick, 484 ; Turner v. John- son, 10 Ohio, 204 ; Bloom v. Van Rensselaer, 15 111. 503 ; Jackson v. Henry, 10 Johns. 185. 6 Lydston v. Powell, 101 Mass. 77. ■^ Poweshiek v. Dennison, 36 Iowa, 244 ; Codwise v. Tajdor, 4 Snoed, 346, 349 ; Loomis V. Clambey, 69 Minn. 469 ; s. c. 72 N. W. Rep. 707 ; s. c. 65 Am. St. Rep. 576. 8 Sheridan v. Welch, 8 Allen, 166. 9 Ormsby v. Tarascon, 3 Lit. 404 ; Ivy v. Gibert, 2 P. Wms. 13 ; Mills v. 70 MORTGAGES WITH POWERS OF SALE. of the mortgagee's security, an interest in land, and is pro- tected against a prior unregistered deed.^ So an assignment of a mortgage is an assignment of a power of sale contained in it. 2 § 1016. Extinguishment of the Power. — But SUCh pOwer is extinguished by the payment of the mortgage debt, even against a bona fide purchaser. ^ And a tender of the debt and costs secured by a prior mortgage, by the holder of a subsequent one, extinguishes the power of sale in the first.* In a subsequent case, the court, commenting upon the doc- trine of Cameron v. Irwin, limit it to this extent: If the mortgage be paid, and then the mortgagee, without notice to the mortgagor, proceeds to sell, the sale would be void, even against a bona fide purchaser. But if the mortgagor, know- ing of the sale, stand by and allow it to be made without ob- jection, he would be barred by it. And this doctrine, thus limited, is applied to all cases of sales for purposes of fore- closure and purchases made bona fide. The title thereby acquired will be valid though the mortgage may have been paid, provided subsequent incumbrancers, or persons having an interest in the estate, and knowing of such process, neg- lect to make defence to it, though parties who were not noti- fied might object to the validity of the sale.^ It was held in Jenkins v. Jones that a sale made by a mortgagee under a mortgage, with power of sale, after a tender by the mortgagor of the debt due, would be set aside as oppressive by the court, if it could be done without injustice to the purchaser. If, however, circumstances which put in question the propriety Banks, 3 P. "Wms. 1. Thus, where a mortgagee was authorized upon default to enter, take possession, and sell the premises, a sale before making and entry and taking or demanding possession was invalid. Koarty v. Mitchell, 7 Gray, 243 ; Simson v. Eckstein, 22 Cal. 580 ; Jackson v. Clark, 7 Johns. 217, 226 ; Denning t;. Smith, 3 Johns. Ch. 332, 345. 1 Bell V. Twilight, 22 N. H. 500 ; Beatie v. Butler, 21 Mo. 313 ; Bunce v. Reed, 16 Barb. 347. 2 Slee V. Manhattan Co., 1 Paige, 48. 8 Cameron v. Irwin, 5 Hill, 272 ; Charter v. Stevens, 3 Denio, 33 ; Lowe v. Grinnan, 19 Iowa, 193. * Burnet v. Denniston, 5 Johns. Ch. 35. See Jenkins v. Jones, 2 Giff. 99 ; Cranston v. Crane, 97 Mass. 459 ; ante, § 1012. 5 Warner v. Blakeman, 36 Barb. 501, 517. MORTGAGES WITH POWERS OP SALE. 71 of the sale are brought to his knowledge, and he purchases with that knowledge, he becomes a party to the transaction which is impeached. This knowledge on the part of the pur- chaser puts him in exactly the same situation as the persons from whom he was about to purchase. But in that case the sale was set aside, although the plaintiff's bill for the pur- pose was not filed till twelve months after the sale.^ 1 Junkius V. Jones, 2 Gilf. 99, 108. 72 TRUST MORTGAGES. CHAPTER XLIII. TRUST MORTGAGES. § 1017. Nature of trust mortgages. 1018. Execution of the power of sale. 1019. Rights of grantor, duties of trustee. 1020. To secure future advances. 1021. Payment of debt, extinguishment of power. 1022. Trustees held to strict impartiality. § 1017. Nature of Trust Mortgages. — Connected with the subject of mortgages with powers of sale is that of deeds of trust in the nature of mortgages, where the deed, instead of being made to the mortgagee himself, is made to some third person or persons, containing the declaration of trust, which the trustees, by accepting it, become bound to execute. The terms of this trust are, usually, that the trustee shall recon- vey to the grantor, upon his performing that which it is in- tended to secure, or, upon failure thereof, to sell the estate, and apply the proceeds in satisfaction of such default. Trust deeds of this kind are often employed in cases where railroad and other large corporations wish to raise moneys upon the security of their property, and are not infrequent in many of the States as a mode of securing the performance of condi- tions in the place of formal mortgages. Though of the nature of mortgages, and by some of the cases treated as identical with them,i the better opinion seems to be that they are rather like mortgages than mortgages in fact. If such a mortgage is given to secure several notes, and one of them 1 Sargent v. Howe, 21 111. 148; Hannah w. Carrington, 18 Ark. 85; Wood- ruffs. Robb, 19 Ohio, 212 ; Coe v. McBrown, 22 Ind. 252 ; Coe i;. Johnson, 18 Ind. 218 ; Richards v. Holmes, 18 How. 143 ; Thornton v. Boyden, 31 111. 200 ; U. M. L. I. Co. V. White, 106 111. 67 ; Shillaber v. Robinson, 97 U. S. 68; New- man V. Samuels, 17 Iowa, 528. See also a full and learned article by Judge Dilloi\, of Iowa Supreme Court, upon trust mortgages and mortgages with powers of sale. 11 Am. Law Reg. 641-658. TRUST MORTGAGES. 73 is assigned, it is an equitable assignment of the security also pro rata.^ Thus, it is uniformly held wherever they have been adopted, that such deeds vest in the trustee an actual legal estate, and not a mere mortgagee's lien.^ But by stat- ute in Mississippi, if the title of the cestui que trust is superior to the legal title, the holder thereof shall only enforce his right through a court of equity, whereas in ejectment it is the legal title only that is in issue. ^ § 1018. Execution of the Power of Sale. — It is Competent for the grantor, in a deed of trust mortgage, to authorize the trustee to sell the estate, or, in a certain prescribed contin- gency, to have this power executed by another, and a deed by the latter may pass a good title. As where the debtor made a deed of trust by way of mortgage to a trustee, with power of sale, and provided that if the trustee was absent the sheriff of the county might proceed to sell for the payment of the debt, and he did so, it was held a good execution of the power.* But where the deed was to such trustee to have and to hold, to him, his heirs, executors, and assigns, and he con- veyed the estate to another to act as trustee in executing the trust by making sale of the same, it was held that he had no right to make such conveyance, nor to clothe another by dele- gation with the power of making the sale in execution of the trust. ^ § 1019. Rights of Grantor, Duties of Trustee. — The terms of the deed fix the rights of the grantor as to redemption of the estate, as well as the rights and duties of the trustee in doing what answers to a foreclosure of the same by a sale of the premises. And courts may enforce this sale even where they have no general authority to cause sales to be made for the purpose of foreclosing mortgages.^ The test as given in 1 Chappel V. Allen, 38 Mo. 213. 2 Devin v. Heudershott, 32 Iowa, 192. 8 Heard v. Baird, 40 Miss. 793. * McKnight v. Wimer, 38 Mo. 132, overruling Miller v. Evans, 35 "Mo. 45. 6 Whittelsey v. Hughes, 39 Mo. 13. 20 ; Real v. Blair, 33 Iowa, 318. « Reece v. Allen, 5 Gilni. 236, 240 ; Bradley v. Chester V. R. R., 36 Penn. St. 141; Koch I). Briggs, 14 Cal. 256, 263 ; Sampson v. Pattison, 1 Hare, 533 ; New- man V. Jackson, 12 Wheat. 572 ; Brown v. Bartoe, 10 Sm. & M. 268, 275; Bris- bane V. Stoughton, 17 Ohio, 482 ; Pettit v. Johnson, 15 Ark. 55, 53 ; Marvin v. Titsworth, 10 Wis. 320, 328 ; Heard v. Baird, 40 Miss. 793, 796. 74 TRUST MORTGAGES. one of the cases is, if the trust is to be executed by the cred- itor, it is a mortgage. If by a third party, it is a trust. ^ It has accordingly been held that, after making such a deed, the grantor has nothing in the estate conveyed which is the subject of levy in favor of an execution creditor. ^ If, how- ever, the debt has been paid in full, the grantor's equitable right is something which may be levied upon, or the pur- chaser may reach the estate through a court of equity. But the payment of the debt does not, of itself, revest the legal title in the grantor, without a release or satisfaction entered of record, or a reconveyance.^ The trustee may foreclose without the aid of the court, upon complying with the terms of the deed in making the sale. And, if he declines to do so, he may be compelled to execute the trust by the inter- vention of the court. ^ And if one of two or more trustees appointed under such a deed of trust die before the trusts are executed, the trust survives, and may be executed by the survivors.^ § 1020. To secure Future Advances. — These trust mort- gages may be made to secure future advances as well as pres- ent loans. In Ashhurst v. Montour Iron Co., the deed was to secure the payment of bonds yet to be made, which the company, the grantors, were to dispose of in market, and in the deed the trustees were authorized to sell the estate either with or without process of court. In Koch v. Briggs, there was a loan of money payable at a specified time. The borrower, to secure this, made a deed of trust, by which the trustee, upon failure of payment by the grantor, was, upon the application of the creditor, the cestui que trusty to make sale in a manner prescribed, and out of the proceeds to pay the sum loaned. The court held that no process would lie for foreclosing the estate, either according to the common 1 Marvin v. Titsworth, supra. 2 Mclntyre v. Agricultural Bk., 1 Freem. Ch. (Miss.) 105 j Pettit v. Johuson, supra; Morris v. Way, 16 Ohio, 469. 8 Heard v. Baird, 40 Miss. 796, 799. * Leffler v. Armstrong, 4 Iowa, 482 ; Bradley u. Chester V. R. R., 36 Penn. St. 141. 5 Hannah v. Carrington, 18 Ark. 85 ;. Peter v. Beverly, 10 Pet. 532, 565 ; Franklin v. Osgood, 14 Johns. 527, 553. TRUST MORTGAGES. 75 law mode, as it may be called, of strict foreclosure in equity, nor that of the State in which the land lay, by a decree of sale of the premises, because whatever was to be done must be based upon the agreement of the parties, which equity could only enforce by compelling the execution of the trust. Nor could there be an equity of redemption if the trust were executed, for, there being no forfeiture, there was nothing to relieve against. The trust, moreover, in such cases, is not between the debtor and creditor, but between the debtor or mortgagor and the trustee, and the creditor or mortgagee and the trustee respectively. ^ § 1021. Payment of Debt, Extinguishment of Power. — The property being held in trust, first, for the payment of the debt, second, for the grantor, a sale by the trustee, after a satisfaction of the debt, would be void, the trust being thereby so far rendered null.^ § 1022. Trustees held to Strict Impartiality. — As a conse- quence of this double character in the trust in such cases, trustees are considered the agents of both parties, debtor and creditor, and their action in performing the duties of their trust should be conducted with the strictest impartiality and integrity, and courts of equity watch their proceedings with a jealous and scrutinizing eye.^ It has been generally held, therefore, that he cannot become a purchaser of the estate; and whether the creditor in whose favor the trust is created can become a purchaser at a sale thereof at auction or not, has been variously held, depending upon whether, in making such sale, the trustee acted independently of any control or direction of the creditor, as well as fairly, or whether the creditor had the power to control the sale.* 1 Wilson V. Russell, 13 MJ. 494, 536 ; Ashhurst v. Montour Ir. Co., 35 Penn. St. 30 ; Bradley v. Chester V. R. R., sitpra ; Koch v. Briggs, 14 Cal. 256. 2 Lowe V. Grinnan, 19 Iowa, 193, 197 ; Heard v. Baird, 40 Miss, 793, 798 ; Thornton v. Boyden, 31 111. 200, 210. 8 Goode V. Comfort, 39 Mo. 213 ; Equit. Tr. Co. v. Fisher, 106 111. 189 ; Sherwood v. Saxton, 63 Mo. 78. * Davoue v. Fanning, 2 Johns. Ch. 252 ; Iddings v. Bruen, 4 Sandf, Ch, 223 ; Thornton v. Irwin, 43 Mo. 153 ; Bloom v. Van Kensseiaer, 15 111. 503 ; Richards V. Holmes, 18 How. 143 ; Wade v. Harper, 3 Ycrg. 383 ; Ex parte Hughes, Ex parte Lyons, 6 Ves. 617. 76 EQUITABLE MORTGAGES. CHAPTER XLIV. EQUITABLE MORTGAGES. § 1023. Security by deposit of title-deeds. 1024. What necessary to create a lieu thereby. 1025. Equitable v. legal mortgagee — ^Notice. 1026. Vendor's lien for purchase-money. 1027. Who affected by vendor's lien. 1028. Vendor's lien in the United States. 1029. Vendor's lien not an estate. 1030. Who affected by vendor's lien. 1031. Lien paramount to dower. 1032. As affecting creditors. 1033. As affecting purchasers from vendee. 1034. Vendor's lien purely equitable. 1035. Waiving the lien. 1036. Vendor's lieu, in whose favor arises. 1037. Assigivibility of vendor's lien. 1038. Vendor's lien denied in certain cases. 1039. Vendee's lien for title. 1040. Vendee's lien, how enforced. § 1023. Security by Deposit of Title-deeds. — Besides the mortgages which have been above described, there are two species of liens upon real estate recognized by equity as a security for the payment of money, and treated in the light of equitable mortgages. One of these is created by a deposit of the title-deeds of an estate with the lender of money. The other is raised in favor of a vendor of real estate as security for the purchase-money due from the purchaser, ^ In respect to the first, equity regards it as an agreement to make a mort- gage by the borrower to the lender, when he deposits his title- 1 Besides these there are many agreements, written and oral, or implied from circumstances, from which equity will, if a security was intended to be created, establish a mortgage, when these were insufficient for that effect at law. Payne v. Wilson, 74 N. Y. 348 ; Ee Howe, 1 Paige, 125 ; Daggett v. Rankin, 31 Cal. 321, 326. These do not, however, admit of such further defined classification as to render their discussion appropriate to this work. See 1 Jones, Mortg. c. 5 ; ante, §§ 980, 982. EQUITABLE MORTGAGES. 77 deeds with him as security for the loan, and will enforce it against the mortgagor and all persons claiming under him with notice.^ This doctrine of creating a lien in the nature of a mortgage, by a simple deposit of the title-deeds of an estate, has been strongly opposed by many able jurists. Lord Eldon esteemed it as a practical repeal of the statute of frauds. 2 § 1024. What necessary to create a Lien thereby. — To give the effect of a lien to the possession of title-deeds, it must be shown affirmatively that they were deposited as a bona fide, present, immediate security. If left, for instance, with the attorney for the purpose of his drawing a mortgage which had been agreed upon by the parties, it will not be sufficient. Mere possession even by a creditor is not enough.^ Nor can such a lien avail against an actual bona fide registered mort- gage by one without notice, though against a creditor who subsequently levies his execution it may.^ § 1025. Equitable v. Legal Mortgagee — Notice. — The bur- den of proof is upon the equitable mortgagee to prove notice on the part of the subsequent legal mortgagee. What will amount to notice depends upon the circumstances of the case. It is said that, if the owner's title-deeds are in the hands of his solicitor, a deposit of a single title-deed, with an intent thereby to create a security on the whole estate, would be sufficient.^ But where one owning lands deposited his title- 1 Story, Eq. Jur. § 1020 ; Russel v. Russel, 1 Bro. Ch. 269, and Perkins' note and cases cited. This, in 1783, was the first case in which the law was stated. Ex parte Langston, 17 Ves. 227 ; Pain v. Smith, 2 Mylne & K. 417; Mandeville V. Welch, 5 Wheat, 277. It is not necessary that the deed deposited should, in order to create an equitable mortgage, show a good title in the depositor. Roberts V. Croft, 24 Beav, 223 ; Edge v. Worthington, Cox, 211 ; Ex parte Coming, 9 Ves. 115, and cases cited in note. 2 Ex parte Whitbread, 19 Ves. 209. See also Ex parte Haigh, 11 Ves. 403; Ex parte Hooper, 19 Ves. 477 ; Norris v, Wilkinson, 12 Vea. 192. 8 Norris v. Wilkinson, 12 Ves. 192; Bozon v. Williams, 3 Younge k J. 150; Mandeville v. Welch, 5 Wheat. 277 ; Chapman v. Chapman, 13 Beav. 308 ; Story, Eq. Jur. § 1020 ; 2 Crabb, Real Prop. 851. But see Ex parte Edwards, 1 Deac. 611. < Story, Eq. Jur. § 1020; Hall v. McDuff, 24 Me. 311 ; Whitworth v. Gaugain, 3 Hare, 416 ; Story, Eq. § 1503 b. 5 Ex parte, Chippendale, 2 Mont. & A. 299 ; Ex parte Wetherell, 11 Ves. 398, For cases illustrative of what would amount to notice, see Hiem v. Mill, 13 Ves, 78 EQUITABLE MORTGAGES. deeds with his bankers as security for a loan, and then en- tered into a marriage settlement with the woman he was about to marry, covering these lands, and her solicitor, upon inquiring for these deeds, was told they had been deposited with the owner's bankers for safe custody, it was held that it was such negligence on her part in not pursuing the inquiry further, that she could not set up the claim of a bona fide pur- chaser without notice against the banker's lien for money lent.i* § 1026. The Vendor's Lien for the Purchase-money rests upon the ground that the purchaser, in such case, is trustee for the vendor until the purchase-money is paid.^ § 1027. Who affected by Vendor's Lien. — This right affects all purchasers having notice of its existence, ^ and the vendor may, by virtue of it, enter and take the profits of the estate like a mortgagee.* If the transaction between the original parties be a contract of sale only, and the purchaser mortgage the estate to a third person who puts his deed upon record, the mortgage so far has effect, that the mortgagee has a right to purchase at the price agreed; and if the original parties rescind their contract, and the vendor sell to another, he * Note. — The power to create this kind of lien has been expressly repudiated in Pennsylvania, Tennessee, and Kentucky. Stiauss's Appeal, 49 Penn. St. 3.53 ; Kauffelt V. Bower, 7 S. & R. 64 ; Meador v. Meador, 3 Heisk. 562 ; Vanmeter v. McFaddin, 8 B. Mon. 437. It seems to be recognized, though not applied, in Maine. Reed v. Reed, 75 Me. 264. It is denied in Mississippi with an intimation that such a lien might be valid under their statute of frauds for one year. Gothard V. Flynn, 25 Miss. 58. It is sustained or recognized in the following cases : Mounce V. Byars, 16 Ga. 469, where it was po.stponed to a vendor's lien ; Robinson v. Urquhart, 12 N. J. Eq. 515 ; GrifRn v. Griffin, 18 N. J. Eq. 104 ; Gale v. Morris, 29 N. J. Eq. 222 ; Carpenter v. O'Dougherty, 67 Barb. 397 ; Carpenter v. Bl. Hawk Gold Mining Co., 65 N. Y. 43 ; Hackett v. Reynolds, 4 R. I. 512; Jarvis v. Dutcher, 16 Wis. 307. It is denied in Nebraska as contrary to the statute of frauds. Bloomfield State Bank v. Miller, 55 Neb. 243 ; s. c. 75 N. W Rep. 569. 114 ; Hewitt v. Loosemore, 21 L. J. K. s. Ch. 69 ; Head v. Egerton, 3 P. Wms. 279 ; Adams, Eq. 123 ; Story, Eq. Jur. § 1020. 1 Maxfield v. Burton, L. R. 17 Eq. 15. 2 Walker, Am. Law, 315 ; Mackreth v. Symmons, 15 Ves. 329 ; Chapman v. Tanner, 1 Vem. 267 ; Blackburn v. Gregson, 1 Bro. C. C. 420, and Perkins' notes ; Story, Eq. Jur. § 1217 ; 2 Crabb, Real Prop. 852 ; Coote, Mortg. 218. 8 Cator V. Pembroke, 1 Bro. C. C. 301, 302 and note. * Irwin V. Davidson, 3 Ired. Eq. 311, 319. EQUITABLE MORTGAGES. 79 takes the estate subject to this right in the first mortgagee.^ But a mere recital in a vendor's deed that the purchase- money is unpaid would not bind subsequent purchasers, un- less the payment of the purchase-money is expressly charged upon the purchaser. ^ § 1028. Vendor's Lien in the United States. — [The doctrine of an implied lien for the unpaid purchase price of land has been wholly rejected in Maine,^ Massachusetts,* Pennsyl- vania,^ North Carolina,^ South Carolina, ^ Nebraska, ^ Kansas,^ Oregon,^*' and Washington ; ^^ but even in these States a ven- dor's lien may be expressly reserved in writing. ^^ j^ Con- necticut, ^^ New Hampshire, 1* and Delaware, ^^ the courts have evaded the question. In California, ^^ North Dakota, i"" and South Dakota, 1^ the existence of the lien is declared by stat- ute. In Vermont,^^ Georgia,^*^ Virginia,^^ West Virginia,22 and Iowa, 23 it has been abolished by statute.] But in the major- 1 A] den V. Garver, 32 111. 32. a Hiester v. Green, 48 Penn. St. 102; Heist v. Baker, 49 Penn. St. 9 ; Strauss' Appeal, 49 Penn. St. 358. 8 Phil brook v. Delano, 29 Me. 410. * Ahrend v. Ordiorne, 118 Mass. 261. 6 Hepburn v. Snyder, 3 Penn. St. 72. 6 Womble v. Battle, 3 Ired. Eq. 182. 7 Wragg V. Comptroller-Gen., 2 Desauss. Eq. 509. 8 Edininster v. Higgins, 6 Neb. 265 ; Ansley v. Pasabro, 22 Neb. 662 ; s. c. 35 K W. Kep. 885. 9 Trustees', Executors', & Secur. Ins. Co. v. Bowling, 2 Kan. App. 770 ; s. c. 44 Pac. Rep. 42. 15 Frame v. Sliter, 29 Oreg. 121 ; s. c. 45 Pac. Rep. 290. 11 Smith V. Allen, 18 Wash. 1 ; s. c 50 Pac. Rep. 783 ; s. c. 63 Am. St. Rep. 864. 12 Bear v. Whisler, 7 Watts, 144 ; Trustees', etc. v. Bowling, supra; Smith v. Allen, supra. 18 Chapman v. Beardsley, 31 Conn. 115. 1* Arlin v. Brown, 44 X. H. 102. 15 Budd V. Busti, 1 Har. (Del.) 69. 16 Deering's Civ. Code, § 3046. 1'^ Rev. Codes, § 4830. 18 Ann. Stat. § 5639. 19 Stat. § 2223. , 20 Code, § 2823. 21 Code, § 2474. But it may be reserved on the face of the conveyance. 22 Code, p. 698. But it may be reserved on the face of the conveyance. 23 Code, § 2924. 80 EQUITABLE MORTGAGES. ity of States, the courts regard this lien as an equitable in- cident to all conveyances where the purchase -money has not been paid. 1 The extent to which it is applied varies. It has been held to exist though the purchaser be 2^ feme covert, as it does not depend on her capacity to make a contract. ^ In other States it is treated as a simple equitable mortgage ; ^ and others still, while they do not hold it as a mortgage, ascribe to it most of the incidents of a mortgage ; though being merely a claim for a debt, it can only be enforced as long as the debt can be.* In Maryland it was applied in case of a sale by one parcener of her interest in the estate to an- other parcener.^ And in Mississippi it was applied, although the vendee did not hold by deed directly from the one who set up the lien as vendor. As where A gave land to B by parol, and B sold by parol to C, to whom A, by B's request, made a deed, C having failed to pay the purchase-money, it was held that B had a vendor's lien upon the premises.^ In Maryland it passes to the executor, and not to the heir of the vendor, and the same in Illinois and some other States. ^ § 1029. Vendor's Lien not an Estate. — The editors of the American edition of the Leading Cases in Equity regard this incidental right of a vendor as not being a lien, until his bill 1 Skaggs V. Nelson, 25 Miss. 88 ; Moreton v. Harrison, 1 Bland, 491 ; Ingle- hart V. Armiger, 1 Bland, 519 ; Pintard v. Goodloe, Hempst. U. S. C. C. 502 ; Tobey V. McAllister, 9 Wis. 463 ; Francis v. Wells, 2 Col. 660 ; Ford v. Smith, 1 McArthur, 592 ; Rice v. Rice, 36 Fed. Rep. 858 ; Wright v. Troutman, 81 111. 374 ; McKeown v. Collins, 38 Fla. 276 ; 8. c. 21 So. Rep. 103 ; Knight v. Knight, 113 Ala. 597; 8. c. 21 So. Rep. 407 ; Yaryan v. Shriner, 26 Ind. 364 ; Emison v. Risque, 9 Bush, 24 ; Payne v. Avery, 21 Mich. 524 ; Pratt v. Clark, 57 Mo. 189 ; Corlies v. Rowland, 26 N. J. Eq. 311 ; Chase v. Peck, 21 N. Y. 581 ; Williams v. Roberts, 5 Ohio, 35 ; Brown v. Vanlier, 7 Humph. 239 ; McAlpine v. Burnett, 23 Tex. 649. 2 Chilton V. Braiden's Adm'x, 2 Black, 458 ; Haskell v. Scott, 56 Ind. 564 ; Pylant v. Reeves, 53 Ala. 132 ; Andms v. Coleman, 82 111. 26. 8 Wilson V. Davisson, 2 Rob. (Va.) 384 ; Haley v. Bennett, 5 Port. (Ala.) 452 ; Kelly V. Payne, 18 Ala. 371. * Trotter v. Erwin, 27 Miss. 772. ,6 Thomas v. Farmers' Bank, 32 Md. 57. « Russell V. Watt, 41 Miss. 602. 7 Merritt v. Wells, 18 Ind. 171 ; Patton v. Stewart, 19 Ind. 233 ; Cowl v. Var- num, 37 111. 181 ; Richards v. Learning, 27 111. 431 ; Grapengether v. Fejervary, 9 Iowa, 163, 174 ; Baum v. Grigsby, 21 Cal. 172, 176 ; Hall i-, Jones, 21 Md. 439; Keith V. Horner, 32 111. 524. EQUITABLE MORTGAGES. 81 to assert it has been filed, but a mere equity or capacity of acquiring a lien and to have it satisfied;^ and Judge Story does not regard it as an equitable estate in the land itself, though it is often spoken of as being such.^ § 1030. Who affected by Vendor's Lien. — This lien, as already remarked, takes effect against the vendee, his heirs and privies in estate, and against subsequent purchasers who have notice that the purchase-money remains unpaid.^ Upon the question, what shall be sufficient notice in order to charge a second purchaser, it has been held that a purchaser is bound to take notice of all liens shown to exist by his vendor's title- deed.* So, if the original vendor remain in open possession, especially if the purchaser shall have heard of an agreement existing in relation to the land between his vendor and the occupant;^ and generally any notice will be sufficient which ought to put the purchaser, as a reasonable man, upon in- quiry.^ As where vendor retained possession, his lien pre- vailed against the vendee of his vendee.'^ Thus, if the purchaser knows that a part of the purchase-money is un- paid,* or it is so recited in his deed, it is notice to the extent of the sum so recited.^ Notice to an agent or the party's solicitor is notice to the party, ^*^ and a mere volunteer who pays nothing for his deed cannot set up want of notice against the claim of his grantor's vendor. ^^ § 1031. Lien Paramount to Dower. — Upon the principle 1 White & Tud. Lead. Cas. (Am. ed.) 241. 2 Oilman v. Brown, 1 Mason, 191. 8 Pintard i-. Goodloe, Hempstead (Ark.), 502; Webb v. Robinson, 14 Ga. 216; Garson v. Green, 1 Johns. Ch. 308 ; Wade y. Greenwood, 2 Rob. (Va.) 474 ; Amory V. Reilly, 9 Ind. 490 ; Christopher v. Christopher. 64 Md. 583. * McRimmon v. Martin, 14 Tex. 318; Tieriian v. Thnnnim, 14 B. Mon. 277 ; Honore v. Bakewell, 6 B. Mon. 67 ; Danghaday v. Paine, 6 Jlinn. 443, 452. « Hopkins v. Garrard, 7 B. Mon. 312 ; Hamilton v. Fowlkes, 16 Ark. 340. 6 Briscoe v. Bronangh, 1 Tex. 326; Frail v. Ellis, 22 L. J. x. s. Ch. 467. 7 Pell V. McElroy, 36 Cal. 268. 8 Manly v. Slason, 21 Vt. 271 ; Baum v. Grigsby, 21 Cal. 176. 9 Thornton v. Knox, 6 B. Mon. 74 ; Woodward i-. Woodward, 7 B. lifon. 116 ; Kilpatrick v. Kilpatrick, 23 Miss. 124; McAlpine i;. Burnett, 23 Tex. 649; Mel- rossr. Scott, 18 Ind. 250. 1" Mounce v. Bj-ars, 11 Ga. 180 ; Frail v. Ellis, 22 L. J. x. s. Ch. 467. 11 Burlingan:e v. Robbins, 21 Barb. 327 ; Upshaw i;. Hargrove, 6 Sm. & M. 286 ; Christopher v. Christopher, 64 Md. 583. VOL. II. — 6 82 EQUITABLE MORTGAGES. above stated, the lien of a vendor takes precedence of the claim for dower of the widow of a purchaser, i § 1032. As affecting Creditors. — But upon the question, how far it shall prevail against creditors of the purchaser, there have been various opinions. As a general proposition, it does not prevail against such creditors, ^ though, against a voluntary assignment made by the purchaser in favor of his creditors, it will, if the vendor file his bill in equity to en- force it before the trust is executed, especially if the assign- ment be in favor of antecedent creditors;^ and bona fide creditors, without notice, are considered as having equities superior to that of a vendor.* § 1033. As affecting Purchasers from Vendee. — A vendor's lien does not prevail against a bona fide purchaser or mort- gagee without notice, the mortgagee being, in equity, re- garded in the light of a purchaser.^ If he knows of the lien when he purchases, he takes the land subject to the same. If before knowing of it he pay a part of the consideration to his vendor, he would be holden for whatever balance is due at the time of such notice.^ If, therefore, one take a mortgage bona fide from another who is in possession of the estate by an absolute deed, he will hold it, though the mortgagor were in fact merely a trustee of the land without any other interest in it. 7 § 1034. Vendor's Lien purely Equitable. — This lien of a 1 Fisher v. Johnson, 5 Ind. 492 ; Crane v. Palmer, 8 Blackf. 120 ; Williams v. Wood, 1 Humph. 408; Bisland v. Hewett, 11 Sm. & M. 164 ; Nazareth, etc. v. Lowe, 1 B. Mon. 257 ; Ellicott v. Welch, 2 Bland, 242 ; Warner v. Van Alstyne, 3 Paige, 513 ; Wilson v. Davisson, 2 Bob. (Va.) 384 ; Patton v. Stewart, 19 Ind. 233. 2 Bayley v. Greenleaf, 7 Wheat. 46 ; Aldridge v. Dunn, 7 Blackf. 249 ; Taylor V. Baldwin, 10 Barb. 626 ; Webb v. Robinson, 14 Ga. 216 ; Gann v. Chester, 5 Yerg. 205 ; Roberts v. Rose, 2 Humph. 145. 3 Brown v. Vanlier, 7 Humph. 239 ; Shirley v. Cong. Sug. Ref., 2 Edw. Ch. 505 ; Repp v. Repp, 12 Gill & J. 341. * See language of Marshall, C. J., Bayley v. Greenleaf, 7 Wheat. 46. 5 Bayley v. Greenleaf, swpra ; Clark u.Hunt, 3 J. J. Marsh.' 553 ; Duval v. Bibb, 4 Hen. & M. 113 ; Wood v. Bk. of Ky., 5 Mon. 194 ; Cole v. Scott, 2 Wash. 141 ; Kauffelt V. Bower, 7 S. & R. 64 ; Putnam v. Dobbins, 38 111. 394, 400 ; McLamie V. Thomas, 39 111. 291 ; Blight v. Banks, 6 Mon. 192, 198. 6 Parker v. Foy, 43 Miss. 260. ^ Newton v. McLean', 41 Barb. 285. EQUITABLE MORTGAGES. 83 vendor for bis purchase-money is purely a matter of equity and does not prevail at law.^ And even in equity it prevails on the ground that the vendor is remediless in a court of law,^ thous^h it is not always necessary that the vendor should resort to proceedings at law before resorting to his bill in equity for relief.^ But in asserting this lien, the vendor cannot throw upon any one part of the estate more than a pro rata burden. As where the vendee sells to several different parties who are cognizant of the lien, they are ratably chargeable. So if he sell several parcels to different purchasers cognizant of the lien, and then sells the remainder to a third party, a release of the lien to the latter by the vendor, with the knowledge of such prior sales, releases these prior vendees a ratable proportion of his lien upon their lots. So if the vendee sell a portion of the land purchased by him to one who knows of the lien, and receives pay for the same, the original vendor must exhaust the remaining part of the estate left in his vendee's hands before he can resort to the parcel he had thus sold.^ A similar principle w'as applied in case of a judgment lien, where the judgment debtor conveyed a part of his estate to a third party.^ § 1035. Waiving the Lien. — But this lien will be defeated if the vendor do any act manifesting an intention not to rely upon the land for security.^ What act is to be deemed to work a •waiver of a vendor's lien, it may not be easy to define. But it has been held that the taking the vendee's note or bond for the purchase-money is not such an act,^ nor his check which is not 1 Coote, Mortg. 218 ; Cator v. Pembroke, 1 Bro. C. C. 302, n. ; Kauffelt v. Bower, 7 S. & R. 64 ; Porter v. Dubuque, 20 Iowa, 440 ; Boynton v. ChamplLn, 42 111. 57-64. 2 Pratt V. Vanwyck, 6 Gill & J. 495 ; Eyler v. Crabbs, 2 Md. 137 ; Bottorf v. Conner, 1 Blackf. 287; Roper v. McCook, 7 Ala. 318. 3 Richardson v. Baker, 5 J. J. Marsh, 323 ; Green v. Fowler, 11 Gill & J. 103 ; High V. Batte, 10 Yerg. 186 ; Payne v. Harrell, 40 Miss. 498. 4 McLaurie v. Thomas, 39 111. 291 ; Blight v. Banks, 6 T. B. Mon. 192, 198. 5 Lowry v. McKinney, 68 Penn. St. 294. 6 Walker, Am. Law, 315 ; Blackburn v. Gregson, 1 Bro. C. C. 424, n. ; 2 Crabb, Real Prop. 853 ; Coote, Mortg. 219 ; Selby v. Stanle)% 4 Minn. 65 ; Daugliaday v. Paine, 6 Minn. 443. T Evans v. Goodlet, 1 Blackf. 246 ; Taylor v. Hunter, 5 Humph. 569 ; Cox v. Fenwick, 3 Bibb, 183; Garson v. Green, 1 Johns. Ch. 308; White v. Williams, 1 Paige, 502 ; Clark v. Hunt, 3 J. J. Marsh. 553 ; Thornton v. Knox, 6 B. Mon. 74 ; Aldridge v. Dunn, 7 Blackf. 249 ; Ross v. Whitson, 6 Yerg. 50 ; Tompkins 84 EQUITABLE MORTGAGES. presented or paid,^ nor a renewal of the vendee's note.^ It can only be waived by taking collateral security, or by an express agreement to that effect.^ But the acceptance of a distinct and separate security for the purchase-money is a waiver, as for instance a mortgage of other property,* or a bond or note with a surety,^ or indorser,^ or a deposit of stock ; ' or where the vendor took notes for the purchase-money, and sold tliese, and the purchaser took new notes from the maker.^ And the taking of the note of a third party for the purchase-money is a waiver of the lien, although it be the note of the husband where the wife is the purchaser,^ provided in these cases the presumption of a waiver is not rebutted by satisfactory evidence that it was intended that the vendor should retain his lien.^'' But while the insufficiency or even the invalidity of the new security will not as a rule prevent a waiver,^^ yet fraud will, because the intent to V. Mitchell, 2 Rand. 428 ; Pinchain v. Collard, 13 Tex. 333 ; Truebody v. Jacobson, 2 Cal. 269; Walker v. Sedgwick, 8 Cal. 398, 493. Xor is suing it, Nairn v. Prowsc, 6 Ves. 752, n. ; Boynton v. Champlin, 42 111. 57. 1 Honore v. Bakewell, 6 B. Mon. 67. And this extends to any instrument whicli involves merely the personal liability of the vendee. Mims v. Macon & W. R. R., 3 Ga. 333. ^ Minis V. Lockett, 23 Ga. 237. See also upon this point Winter i'. Anson, 3 Russ. 488 ; Teed v. Carruthers, 2 Yo. & C. Ch. 31 ; Ex parte Loaring, 2 Rose, 79 ; Hughes v. Kearne}', 1 Sch. & L. 132, 136. 3 Dubois V. Hull, 43 Barb. 26 ; McLaurie v. Thomas, 39 111. 291. * Richardson v. Ridgely, 8 Gill & J. 87 ; White v. Dougherty, 1 Mart. & Y. 309 ; Young y. Wood, 11 B. Mon. 123 ; 3 Sugd. Vend. 191, 204 ; Manly v. Slason, 21 Vt. 271 ; unless vendee is guilty of fi'aud, Tobey v. McAllister, 9 Wis. 463 ; Mattix V. Weand, 19 Ind. 151 ; Hummer v. Schott, 21 Md. 307 ; Hadley v. Pickett, 25 Ind. 450, though covering only a part of the premises sold. 5 Boon V. Murphy, 6 Blackf. 272 ; Williams v. Roberts, 5 Ohio, 35 ; Mayham V. Coombs, 14 Ohio, 428 ; Wilson v. Graham, 5 Muuf. 297 ; Blight v. Banks, 6 Mon. 192 ; McGonigal v. Plumraer, 30 Md. 422 ; Fonda v. Jones, 42 Miss. 792, unless express agreement to the contrary. 6 Foster v. Trustees, 3 Ala. 302 ; Burke v. Gray, 6 How. (Miss.) 527; Marshall V. Christmas, 3 Humph. 616; Conover v. Warren, 1 Gilm. 498 ; Gilman v. Brown, 1 Mason, 191 ; s. c. 4 Wheat. 255 ; Burger v. Potter, 32 111. 66. 7 Lagow V. Badollet, 1 Blackf. 416. 8 Phelps V. Conover, 25 111. 309. 9 Cowl V. Varnum, 37 111. 181; Richards v. Learning, 27 111. 431; Boynton v. Champlin, 42 111. 57 ; Andrus v. Coleman, 82 111. 26. 10 Campbell v. Baldwin, 2 Humph. 248 ; Mims v. Macon & W. R. R., 3 Ga. 333 ; Baum v. Grigsby, 21 Cal. 172. " Hunt V. Waterman, 12 Cal. 301 ; Mayham v. Coombs, 14 Ohio, 428 ; Andrus V. Coleman, 82 111. 26 ; Willard v. Reas, 26 Wis. 540 ; Partridge v. Logan, 3 Mo. EQUITABLE MORTGAGES. 85 waive cannot then be implied.^ At all events, taking such secu- rity is prima facie evidence of a waiver, and the onua is on the vendor to prove by the most cogent and irresistible circum- stances that it ought not to have that effect;''^ although the Chancellor, in one case, was inclined to hold that the burden of proof was upon the purchaser to show that the vendor agreed to rest on the collateral security.^ But if the vendor has merely given a bond for a deed, the lien he has for the purchase-money is treated as a moi-tgage, and no change in the form of the debt will discharge the lien, short of the payment of it.* So a vend- or's lien may be shown to be waived by proof of his intention not to rely upon it as security.^ § 1036. Vendor's Lien, in whose Favor arises. — This lien does not arise in favor of a third party who pays the purchase- money to the vendor for the purchaser, and takes his note for the same.^ But this is held otherwise in those States which permit the lien to pass with the sale of the note.'^ And in Ohio, where a husband and wife were sued by a vendor for the pur- chase of an estate conveyed to the wife, and he paid the judg- ment, it was held that he thereby became subrogated to the vendor's lien till repaid the sura he had been obliged to pay.*' Nor is the rule uniform how far the assignee of the vendor's claim for the purchase-money may avail himself of his lien by way of security for the same. § 1037. Assignability of Vendor's Lien. — As a general propo- sition, if a debt is secured by an express lien upon property by agreement of the parties, an assignment of the debt secured by such lien will give the assignee the benefit of such lien.^ In App. 509 ; but see Haugh v. Blythe, 20 Irnl. 24 ; Champliii v. McLeod, 53 Miss. 484; Duke v. Balme, 16 Minn. 306, contra. 1 Tobey v. McAllister, 9 Wis. 463 ; Crippen v. Heermauce, 9 Paige, 211. 2 Gilman v. Brown, 1 Mason, 191, 217, 219. 8 Hughes V. Kearney, 1 Scb. & L. 135. * Graham v. McCampbell, Meigs, 52 ; Anthony v. Smith, 9 Humph. 508. 6 Clark V. Hunt, 3 J. J. Marsh. 553 ; Phillips v. Saundersoii, Sm. & M. Ch. 462 ; Eedford v. Gibson, 12 Leigh, 332; Mackreth v. Synimoiis, 15 Ves. 329, 342; Austen v. Halsey, 6 Ves. 475, 483. 8 Stansell v. Roberts, 13 Ohio, 148; Skaggs v. Nelson, 25 Miss. 88; Crane v. Caldwell, 14 HI. 468 ; Notte's Appeal, 45 Penn. St. 361. ^ Peet V. Beers, 4 Ind. 46 ; Lusk v. Hopper, 3 Bush, 179. 8 Westerman v. Westerman, 25 Ohio St. 500. 9 Graham v. McCampbell, Meigs (Teun.), 52 ; Tanner v. Hicks, 4 S. ii M. 294 ; 86 EQUITABLE MORTGAGES. analogy with this, it has been held in Kentucky, Indiana, and Alabama, that the assignment of a vendor's claim for purchase- money carries with it the vendor's lien, whether express or im- plied.^ But the prevailing opinion in other States seems to be that such a lien is a personal one, and does not pass by assign- ment of the claim.2 If, however, the note is not sold, but is assigned as collateral, and perhaps was taken in payment of the vendor's debt, the transferee is entitled to enforce the lien.'^ If the note comes back to the vendor, his lien revives,* § 1038. Vendor's Lien denied in Certain Cases, — The implied lien of a vendor for the performance of the consideration does not arise where the amount of the charge on the land cannot be ascertained accurately, as where the consideration is to sup- port the grantor for life.^ § 1039. Vendee's Lien for Title. — Corresponding to the lien which a vendor has for his purchase-money is the lien which equity gives the vendee on the land to the amount advanced towards the purchase-money, until the vendor shall have made a title to the same,^ This is but little more than carrying out Xorvell V. Johnson, 5 Humph. 489 ; Eskridge v. McClure, 2 Yerg, 84 ; Crow v. Vance, 4 Iowa, 434 ; McCliutic v. Wise, 25 Gratt. 448. 1 Edwards v. Bohannon, 2 Dana, 98 ; Honore v. Bakewell, 6 B. Mon. 67 ; La- gow V. Badollet, 1 Blackf. 416; Brunifield v. Palmer, 7 Blackf. 227; Roper v. Mc- Cook, 7 Ala, 318 ; White v. Stover, 10 Ala. 441 ; Griggsby v. Hair, 25 Ala. 327 ; Eisher v. Johnson, 5 Ind. 492. 2 Brush V. Kinsley, 14 Ohio, 20 ; Horton v. Horner, id. 437 ; Gann v. Chester, 5 Yerg. 205 ; Sheratz v. Nicodemus, 7 Yerg. 9 ; Green v. Crockett, 2 Dev. & B. Eq. 390 ; Webb v. Robinson, 14 Ga. 216 ; White v. Williams, 1 Paige, 502 ; Dicken- son I'. Chase, 1 Morris (Iowa), 492 ; Briggs v. Hill, 6 How, (Miss. ) 362 ; Moreton V. Harrison, 1 Bland, 491 ; Hallock v. Smith, 3 Barb. 267 ; Shall v. Biscoe, 18 Ark. 142, where the point is fully examined ; Walker v. Williams, 30 Miss. 165 ; Strat- ton 17. Gold, 40 Miss. 778 ; Baum v. Grigsby, 21 Cal. 172 ; Wellborn v. Williams, 9 Ga. 86 ; Green v. Demoss, 10 Humph. 371 ; McLaurie v. Thomas, 39 111. 291 ; Ross V. Heintzen, 36 Cal. 313 ; Moshier v. Jleek, 80 111. 79 ; Elder v. Jones, 85 111. 384. 3 Crawley v. Riggs, 24 Ark. 563 ; Carlton v. Buckner, 28 Ark. 66 ; Hallock v. Smith, 3 Barb. 267. * Gotten V. McGehee, 54 Miss. 510 ; Bernays v. Feild, 29 Ark. 218 ; Kelly v. Payne, 18 Ala, 371; Turner v. Horner, 29 Ark. 440; Lindsay w. Bates, 42 Miss. 397 ; White v. Williams, 1 Paige, 502. ° Corbin v. Brown, 44 IST, H. 102 ; Hiscock v. Norton, 42 Mich. 320 ; s. c. 30 N. W. Rep. 868 ; McKillip v. McKillip, 8 Barb. 552 ; Meigs v. Dimock, 6 Conn. 458 ; Peters v. Tunell, 43 Minn. 473 ; s. c. 45 N. W. Rep. 867 ; s. c. 19 Am. St. Kep. 252. Contra, Chase v. Peck, 21 X. Y. 581. 6 Coote, Mortg, 218 ; Burgess v. Wheate, 1 W, Bl. 123, L50, The doctrine is EQUITABLE MORTGAGES. 87 the old idea of a use raised in favor of a vendee who has paid the purchase-money of an estate. And where the contract is executory, as fast as the purchase-money is paid in, it is a part performance of such contract, and to that extent the payment of the money, in equity, transfers to the purchaser the owner- ship of a corresponding portion of the estate. Accordingly, if the vendor, after the contract of sale made, mortgage the estate, the mortgagee takes only the interest of the vendor under such contract. He may notify the vendee to pay him the instalment falling due. If he do not, and vendee pays it to the vendor, the effect is to divest so much of the mortgagee's equitable interest in the land.^ § 1040. Vendee's Lien, how enforced. — The mode of enforc- ing such liens is by a bill in equity, to have a satisfaction of the debt made ; and to that end the court may order enough of the land to be sold to satisfy the lien.^ But it can be en- forced only in a suit or proceeding brought for the purpose. It cannot be reached by a collateral proceeding.^ But the holder of such lien may be pursuing his remedy to collect his debt, and to enforce his lien at the same time, in which respect his rights are the same as of all mortgagees.^ But it was held, that, where a vendor enforced his lien for a part of the pur- chase-money which was due, it exhausted his lien even as to the part not due.^ And if the lien is once waived, equity will not revive it.^ doubted by Siigden, 1 Sugd. Vend. 478, but approved in Mackreth v. Symmons, 15 Ves. 352, and in Story, Eq. Jur. § ]217 and note. See also Payne v. Atterbury, Harringt. Ch. 414 ; ^Etna Ins. Co. v. Tyler, 16 Wend. 385 ; Lowell v. Middlesex Ins. Co., 8 Cush. 127 ; Shirley v. Shirley, 7 Blackf. 452 ; Chase v. Peck, 21 N. Y, 581 ; Hope v. Stone, 10 Minn. 141 ; Taft v. Kessel, 16 Wis. 273, 279 ; Wickman v. Robinson, 14 Wis. 493. 1 Rose V. Watson, 10 H. L. Gas. 672, 678. See Knox v. Gye, L. R. 5 E. & I. App. 675, as to how far vendor, after sale, becomes a trustee of the vendee. 2 Wilson V. Davisson, 2 Rob. (Va.) 384 ; Mnllikin v. MuUikin, 1 Bhmd, 538 ; Eskridge v. M'Clure, 2 Yerg. 84 ; Clark v. Bell, 2 B, Mon. 1 ; Williams v. Young, 17 Cal. 403. 8 Converse v. Blumrick, 14 Mich. 109. * Payne v. Harrell, 40 Miss. 498 ; Clark ;). Hunt, 3 J. J. lilarsb. 553 ; Jones v. Conde, 6 Johns. Ch. 77; Ely v. Ely, 6 Gray, 439; post, § 1172. 6 Codwise v. Taylor, 4 Sneed, 346. 6 Burger v. Potter, 32 111. 66. 88 MORTGAGES. CHAPTER XLY. MORTGAGES — OF THE MORTGAGEE'S INTEREST. § 1041. Mortgagee's estate at common law. 1042. Mortgagee's interest in equity. 1043. The debt the principal thing. 1044. Common law theory of mortgages. 1045. Lien theory of mortgages. 1046. Combination of both theories. 1047. Restriction of mortgagee's right to possession. 1048. Rights of mortgagor and mortgagee as to assignees. 1049. Of notice to assignees. 1050. Mortgagee's interest, how assigned. 1051. Mortgagee's interest, how assigned, continued. 1052. Assignment by deed. 1053. When mortgage and debt inseparable. 1054. Mortgagee as trustee for mortgagor. 1055. Mortgagee as trustee for assignee of debt. 1056. Assignment by transfer of mortgage debt. 1057. Several debts secureil by same mortgage. 1058. Assignment as affected by law of place. 1059. Equities of assignees. 1060. Legal remedy of equitable assignee. 1061. What will divest mortgagee's seisin. 1062. Enforcing mortgages on different parcels. 1063. Payment working equitable assignment. 1064. Eff'ect of mortgagee's purchase of equity of redemption. 1065. Of mortgagee's remedy for waste. 1066. Of mortgagee's remedy for waste, continued. 1067. Injunction to stay waste. 1068. Of leases and emblements. 1069. Of recovery of rent by mortgagee. 1070. Recovery of rent by mortgagee, continued. 1071. Mortgagee's interest not subject to dower or debts. 1072. Of devises aff"t'cting mortgages. 1073. Mortgages go to personal rejiresentatives. 1074. Of mortgages for separate debts. 1075. Of separate mortgages for one debt. 1076. Order of priority. 1077. Effect of defective registration on notice. 1078. Doctrine of Us pcvdcvs. 1079. Of recording assignments. 1080. Of judgment and mortgage liens. 1081. Doctrine of tacking. OF THE mortgagee's INTEREST, 89 § 1082. Extension of lien in JIassacliusetts. 1083. Mortgages for future advances. 1084. Mortgages for future advances, continued. 1085. Mortgage as affecting after acquired property. 1086. Same subject — Railway rolling-stock. 1087. Waiving foreclosure. §1041. Mortgagee's Estate at Common Law. — By the Com- mon law, a mortgagee in fee of land is considered as absolutely entitled to the estate, which he may devise or transmit by de- scent to his heirs.^ He takes it subject to its being defeated by the grantor's doing some act, such as the payment of money, in a prescribed time and manner, and often subject by agree- ment to the right of the grantor to occupy till he fails to per- form the condition of his deed. But if the condition fail to be fulfilled punctually, all right of the grantor to the estate is thereafter gone, and the mortgagee becomes the absolute and unconditional owner of the entire estate.^ Indeed, the idea of an estate in the rjght iii__eqjLiity-to-X£d££ in m ort g aged lands being in the mortgagor is of comparatively recent origin. Lord Hardwicke, about 1736, first declared it to be such until barred by foreclosure. \ And although at first this was purely a notion of equity, it has, as will be shown hereafter, found its way into the common law to a greater or less extent, according as it was more or less favored by the courts of the several States.^ § 1042. In Equity, the Interest of a Mortgagee is essentially different from that at common law. It has two aspects, one before and the other after the condition of the mortgage has been broken, and sometimes a tliird, where this breach has been followed by actual possession taken of the premises by the mortgagee. Besides, recourse is often necessary to be had to the forms of law, in order to enforce a mortgagee's rights. Here a different set of terms is made use of in relation to his interest from those used in considering it in equity. In one connection it may be spoken of as a personal interest, in the 1 Van Duyne v. Thayre, 14 Wend. 233 ; Deemarest v. Wyncoop, 3 Johns. Ch. 129, 145 ; 2 Crabb, Real Prop. 858 ; Wms. Real Prop. 349; 1 Bytli. Conv. by Jar- man, 638 ; Fisk v. Fisk, Prec. Chan. 11 ; Co. Lit. 205 a, n. 96. But see, as to mortgages being devisable before condition broken, 2 Crabb, Real Prop. 882. 2 Wms. Real Prop. 351, 352, 354 ; 2 Crabb, Real Prop. 856, 857. 8 Casborne v. Searfe, 1 Atk. 603 ; Story, Eq. Jur. § 1015; Parsons v. Welles, 17 Mass. 419 ; Co. Lit. 205 a, Butler's note, 96. 90 MORTGAGES. other as a legal estate. This may aid in partially reconciling the discrepancy in the manner in which courts have treated mortgages, though it may not fully explain it. Thus a mort- gagee can only release his interest in the land by a deed. But equity will enforce it if made by writing not under seal.^ And if a writ of entry be brought against one in possession of land, who holds a mortgage upon the same, he may plead that he is seised in fee, although he may never have made formal entry to foreclose the same.^ Hence a trust concern- ing a mortgage is not a trust in land and need not be as- signed in writing.^ § 1043. The Debt the Principal Thing. — As a general propo- sition, equity regards a mortgage, especially before the condition is broken, as creating an interest in the mortgaged premises of a personal nature, like that which the mortgagee has in the debt itself. It treats the debt as the principal thing, and the land as a mere incident to it. Whatever it does with the land is auxiliary to enforcing payment of the debt.^ § 1044. Common Law Theory of Mortgages. — In considering this complicated system, and grouping the rules which have been recognized or adopted in the various States as to the nature and character of a mortgagee's interest in lands held by him in mortgage, it will be found that the chief differ- ence is between the States where a mortgage is regarded as a conveyance passing a legal freehold from the mortgagor to the mortgagee, and the States where it only gives a lien or confers an equitable title enforceable by statutory or equi- table remedies. In the former class are Massachusetts, Maine, 1 Headley v. Gonndry, 41 Barb. 279. 2 Hoxie V. Finney, 11 Gray, 511. 3 Thacher v. Churchill, 118 Mass. 108. * Martin v. Mowlin, 2 Burr. 978 ; Matthews v. Wallwyn, 4 Yes. 118 ; Co. Lit. 205, Butler's note, 96 ; Wms. Real Prop. 349 ; id. 354 ; Brown v. Gibbs, Free. Chan. 97 ; Miami Ex. Co. v. U. S. Bk., Wright (Ohio), 249 ; Hughes v. Ed- wards, 9 "Wheat. 500 ; Rnnyan v. ]\Iersereau, 11 Johns. 534 ; Myers v. White, 1 Rawle, 353 ; Ellison v. Daniels, 11 N. H. 274 ; Eagland v. Justices, 10 Ga. 65 ; Dougherty v. McColgan, 6 Gill & J. 275 ; Dudley v. Cadwel], 19 Conn. 218; Cal- kins V. Calkins, 3 Barb. 305 ; Waring v. Smythe, 2 Barb. Ch. 119 ; Kinna v. Smith, 3 N. J. Eq. 14; Jackson v. Willard, 4 Johns. 41 ; Whitney v. French, 25 Vt. 663 ; Hannah v. Carrigan, 18 Ark. 85 ; McMillan v. Richards, 9 Cal. 365 ; Anderson v. Baumgartner, 27 Mo. 80 ; Green v. Hart, 1 Johns. 530 ; Eaton v. Whiting, 3 Pick. 484. OF THE mortgagee's INTEREST. 91 and other States, where it is held that, unless restricted by the terms of the deed, the mortgagee may enter at once upon the land ; nor will he be liable in trespass to the mortgagor for making such entry or exercising any ordinary acts of owner- ship upon the premises ;i but may have trespass against the mortgagor even before condition broken, as for resisting his entry, or cutting timber and the like.^ In Delaware, Missouri, and Mississippi, and in Vermont by statute, while the mortga- gee has no right of possession before breach, yet when a breach occurs the title vests in him at law, enabling him to maintain ejectment or other legal remedies for possession.^ Tiie same doctrine prevails in New Jersey ^ and Ohio ; ^ the mortgagee 1 Newall V. Wright, 3 Mass. 138; Erskiiie v. Townsend, 2 Mass. 498 ; Groton V. Boxborough, 6 Mass. 50; Reading of Trowbridge, J., 8 Mass. 551; Fay v. Brewer, 3 Pick. 203 ; Maynard v. Hunt, 5 Pick. 240 ; Bradley v. Fuller, 23 Pick. 1 ; Winslow V. Mercli. Ins. Co., 4 Met. 306 ; Miner v. Stevens, 1 Cusb. 482 ; Page v. Robinson, 10 Gush. 99; Wales v. Mellen, 1 Gray, 512 ; Johnson v. Phillips, 13 Gray, 198; Welch v. Priest, 8 Allen, 165 ; Walker v. Thayer, 113 Mass. 36, 39; Simpson v. Dix, 131 Mass. 179 ; Searle v. Sawyer, 127 Mass. 491 ; Blaney v. Bearce, 2 Me. 132; Tuttle v. Lane, 17 Me. 437 ; Smith v. Kelley, 27 Me. 237 ; Covell V. Dolloff, 31 Me. 104 ; Fosters. Perkins, 42 Me. 168. And where the mort- gagee is restricted by the deed from entering before breach, he may enter then, though the mortgage also provides for a sale in that event. First Nat. F. I, Uo. V. Salisbury, 130 Mass. 303. '■^ Smith V. Johns, 3 Gray, 517; Page v. Robinson, 10 Cush. 99 ; Northampton Mills V. Ames, 8 Met. 1 ; Searle v. Sawyer, 127 Mass. 491 ; Tripe v. Marcy, 39 N. H. 439 ; Furbush v. Goodwin, 29 N. H. 321 ; Gray v. Gillespie, 59 N. H.'469 ; Bellows V. B. C, & M. R. R., id. 491 ; Chellis v. Stearns, 22 N. H. 312. See Gr. Falls Co. V. Worster, 15 N. H. 412 ; Barker v. Bell, 37 Ala. 354, 358 ; Welsh v. Phillips, 54 Ala. 309 ; Snedecor v. Freeman, 71 Ala. 140 ; but see Strang v. Moog, 72 Ala. 460. 8 Hall I'. Tunnell, 1 Houst. 320 ; Cooch v. Gerry, 3 Harr. 280 ; Wakop v. McKinney, 10 Mo. 229 ; Kennet v. Plummer, 28 Mo. 142 ; Sutton v. Mason, 38 Mo. 120 ; Woods v. Hilderbrand, 46 Mo. 284 ; Johnson v. Houston, 47 Mo. 227; Reddick v. Gressman, 49 Mo. 389; Jones v. Mack, 53 Mo. 147 ; Watson V. Dickens, 12 Sm. & M. 608 ; Mclntyre v. Whitfield, 13 Sm. & M. 88 ; Trustees V. Dickson, 1 Freem. Ch. 474 ; Harmon v. Short, 8 Sm. & U. 433 ; Hill v. Rob- ertson, 24 Miss. 368 ; Wilkinson v. Flower, 37 Miss. 579 ; Buckley v. Daley, 45 Miss. 338, 345; Buck v. Payne, 52 Miss. 271; Tucker v. Keeler, 4 Vt. 161; Moray v. Maguire, id. 327 ; Hooper v. Wilson, 12 Vt. 695 ; Wright v. Lake, 30 Vt. 206 ; per Barrett, Ch., Cheever v. Rutl. & B. R. R., 39 Vt. 653. * Sanderson v. Price, 21 N. J. 646 ; Shields v. Lozear, 34 N. J. 496 ; Kircher V. Schalk, 39 N. J. 335, 337. But it is also held in this State that payment of the debt after the law day extinguishes the mortgage at law. Ibid. 6 Ely V. Maguire, 2 Ohio, 223 ; Phelps v. Butler, id. 224 ; Hart v. Blacking- ton, Wright, 386 ; Rands v. Kendall, 15 Ohio, 671, 676, 677 ; Doe v. Pendleton, 92 MORTGAGES. being entitled in these States, for the purposes of remedy and security, after condition broken, to resort to the same measures in law as the holder of a legal estate ; ^ or, as it is stated in one case, " the right of the mortgagee to have his interest treated as real estate extends to and ceases at the point where it ceases to be necessary to enable him to protect or avail himself of his just rights intended to be secured to him by the mortgage." ^ While, as between himself and the mortgagor, he is treated as the owner of the legal estate, as to strangers, the legal estate is treated as remaining in the mortgagor ; and hence the outstanding title in the mortgagee cannot be set up by a stranger in ejectment by the mortgagor.^ Another incident of this class of mortgage interests is the right which the mortgagee has, upon failure of the mortgagor to redeem, to become himself the absolute owner of the premises through some process of foreclosure by which the equity of redemp- tion is extinguished. Upon recovery in such an action he will take the estate with all the crops growing upon it.* Nor will equity interfere to prevent him from pursuing his legal remedy to obtain possession of the premises, or from assuming possession at any time, if not restrained by his deed or some statute ; ^ and he may pursue all his remedies at the same time in equity or at law.^ The seisin acquired by the mortgagee under the mortgage-deed is sufficient to id. 735 ; Frische v. Kramer, 16 Ohio, 125 ; Carter v. Goodin, 3 Ohio St. 75 ; Allen V. Everly, 24 Ohio St. 97 ; Yearly v. Long, 40 Ohio St. 27. And the lan- guage in Miami Ex. Co. v. U. S. Bk., Wright, 249, describing the mortgage inter- est as a mere lien, must be limited accordingly. ^ Cases supra. 2 Ellison V. Daniels, U N. H. 274; Clinton v. Westbrook, 38 Conn. 9, 14; Buck V. Payne, 52 Miss. 271. See also, for similar definitions, Ewer v. Hobbs, 6 Met. 1 ; Munson v. Munson, 30 Conn. 425, 437 ; Kelly's Case, 32 Md. 421. 8 Hall V. Lance, 25 111. 281 ; Savage v. Dooley, 28 Conn. 411 ; Burr v. Spencer, 26 Conn. 159. * McCall V. Lenox, 9 S. & R. 302 ; Thompson v. Vinton, 121 Mass. 139 ; Porter V. Hubbard, 134 Mass. 233, 237. ° Den V. Wright, 7 N. J. 175 ; Newbold v. Xewbold, 1 Del. Ch. 310; Wilhelm V. Lee, 2 Md. Ch. 322. « Ely V. Ely, 6 Gray, 439 ; Vanzant v. Allnian, 23 HI. 30 ; Carroll v. Ballance, 26 HI. 9 ; Karnes v. Lloyd, 52 HI. 113 ; Erickson v. Rafferty, 79 111. 209 ; New- bold V. Newbold, 1 Del. Ch. 310; Brown r. Stewart, 1 Md. Ch. 87; Wilhelm v. Lee, 2 Md. Ch. 322 ; Lord v. Crowell, 75 Me. 399 ; Whitehead v. L. & B. Co., 72 Ala. 39; Torrey v. Cook, 116 Mass. 135 ; post, § 1173. OP THE mortgagee's INTEREST. 93 carry with it, accordinj^ to the right he has in tlie estate, the benefit of his covenant of warranty made with his mort- gagor.i And although payment or performance on the law day, in accordance with the terms of the mortgage, defeats the mortgagee's estate at lavv,^ tender of payment to, or even acceptance of it by, the mortgagee after the law day will not.^ § 1045. Lien Theory of Mortgages. — [In those States which have adopted the " lien theory " the mortgagee acquires no estate whatever in the land either at law or in equity. He acquires nothing but a lien, — a mere right, in the event of a default, to have the specific property mortgaged sold and the proceeds applied in satisfaction of the debt. The legal estate remaining in the mortgagor, the mortgagee is not entitled to the possession of the land and cannot eject the mortgagor. The mortgagor can be divested of his estate and right of pos- session, only by sale under foreclosure; and if, upon foreclos- ure, the mortgagee become the owner of the premises, he becomes so by buying at the sale, and not, as in strict fore- closure under the common law theory, by extinguishing the mortgagor's equitable right to redeem, rendering his own pre- 1 McGoodwin v. Stephenson, 11 B. Mon. 21 ; Devin v. Hcndershott, 32 Iowa, 192 ; and see Felch v. Taylor, 13 Pick. 133 ; White v. Whitney, 8 Mete. 81. •^ Erskine v. Townsend, 2 Mass, 493, 495 ; Fay v. Cheney, 14 Pick. 399, 401 ; Breckenridge v. Ormsby, 1 J. J. Marsh. 257 ; Armitage v. Wicklifle, 12 B. Monr. 497 ; Blanchard v. Benton, 4 Bibb, 45 ; Francis v. Porter, 7 Ind. 213 ; Powell v. Williams, 14 Ala. 476 ; Barker v. Bell, 37 Ala. 354; Hemphill v. Ross, 66 N. C. 477 ; Ellis v. Hussey, id. 501 ; Berryhill v. Kirchner, 96 Penn. St. 489 ; Munsou V. Mnnson, 30 Conn. 425, 437 ; Furguson v. Coward, 2 Heisk. 572 ; post, § 1106. 3 Fanlkner v. Brockenbrough, 4 Rand. 245; Phelps v. Sage, 2 Day, 151 ; Gris- wold V. Mather, 5 Conn. 440 ; Doton v. Russell, 17 Conn. 154 ; Smith v. Vincent, 15 Conn. 1 ; Dudley v. Cadwell, 19 Conn. 227 ; Robinson v. Cross, 22 Conn. 171 ; Townsend Sav. Bk. v. Todd, 47 Conn. 190 ; Howe v. Lewis, 14 Pick. 329 ; Fay v. Cheney, id. 399, 401; Howard v. Howard, 3 Met. 548. But in Illinois and Kentucky payment by the mortgagor after breach and entry entitles him to main- tain ejectment against the mortgagee. Holt v. Rees, 44 111. 30 ; Breckenridge v. Ormsby, 1 J. .1. Marsh. 257. And in New York, even a mere tender has this effect. Kortright v. Cady, 21 N. Y. 343. In Maine, since R. S. c. 70, § 28, payment after the law day discharges. Wilson v. E. & N. A. R. R., 67 Me. 358, 361 ; Lord V. Crowell, 75 Me. 399. And in Massachusetts it is now held that the mort- gagee's bare legal title after payment is no bar to mortgagor's taking possession, and gives no right to the mortgagee to enter. Baker v. Gavitt, 128 Mass. 93; and see 'post, § 1106. 94 MORTGAGES. vious legal estate indefeasible. Default works no change in the mortgagor's rights or estate. He has his " law day " until foreclosure. A mortgagor's estate in the land, therefore, both before and after default, is misnamed an "equity of redemp- tion." The mortgagee having no estate in the land, there is nothing for the mortgagor to redeem. His right is to pay the debt. ^ It is immaterial that the mortgage is in form an absolute deed.^ § 1046. Combination of both Theories. — Certain States, as Delaware and Missouri, have combined the common law and equitable theories by giving to the mortgage the force of a mere lien, as described in the preceding section, leaving the legal estate with the right of possession in the mortgagor until default; giving them then to the mortgagee,^ but only for the purpose of enforcing his security ; payment, even after default, revesting the title in the mortgagor.^ Moreover, in 1 Syracuse v. Bk. Tallman, 31 Barb. 201 ; Stoddard v. Hart, 23 N. Y. 556 ; Kortright v. Cady, 21 N. Y. 343 ; Nagle v. Macy, 9 Cal. 426 ; McMillan v. Pdcli- ards, id. 365 ; Button v. Warscliauer, 21 Cal. 609 ; Gibbs v. Holmes, 10 Rich. Eq. 489 ; Elfe v. Cole, 26 Ga. 197 ; Crown v. Snell, 6 Fla. 741 ; Keasoner v. Edmundson, 5 Ind. 393 ; Francis v. Porter, 7 Ind. 213 ; Grable v. McCulloh, 27 Ind. 472; Fletcher v. Holmes, 32 Ind. 497, 518 ; Croft v. Bunster, 9 Wis. 503 ; Wood V. Trask, 7 Wis. 566 ; Brinkman v. Jones, 44 Wis. 498 ; Mason v. Beach, 55 Wis. 607 ; Heyward v. Judd, 4 Miun. 483, 492 ; Pace v. Chadderdon, id. 502 ; Adams v. Corriston, 7 Minn. 462; Perkins v. Sterne, 23 Tex. 561; Chick v. Willets, 2 Kan. 384, 391 ; Clark v. Reyburn, 1 Kan. 281 ; Kyger v. Riley, 2 Neb. 28; Webb v. Hoselton, 4 Neb. 808; Witherill v. Wiberg, 4 Sawyer, 232 ; Douglas v. Cline, 12 Bush, 608 ; Woolley v. Holt, 14 Bush, 788 ; Taliaferro v. Gay, 78 Ky. 496 ; Rader v. Ervin, 1 Mont. 632 ; State v. Laval, 4 McCord, 336 ; Thayer v. Cramer, 1 McCord, Ch. 395 ; Ragland v. Justices, 10 Ga. 65 ; Durand v. Isaacks, 4 McCord, 54 ; Mitchell v. Bogan, 11 Rich. 686 ; Pasco v. Gamble, 15 Fla. 562 ; Bryan v. Butts, 27 Barb, 503 ; Smith v. Gardner, 42 Barb. 356 ; Packer v. Roch. R. R., 17 N. Y. 283 ; Stuart v. Hutchins, 13 Wend. 485 ; Murray v. Walker, 31 N. Y. 399 ; Trim en v. Marsh, 54 N. Y. 599 ; Caruthers v. Humphrey, 12 Mich. 270 ; Mann v. Falcon, 25 Tex. 271 ; Edrington v. Newland, 57 Tex. 627 ; Pratt v. Godwin, 61 Tex. 331 ; White v. Rittenmyer, 30 Iowa, 268 ; Burton v. Hintrager, 18 Iowa, 348 ; Carpenter v. Allen, 16 La. An. 435 ; Belloc v. Rogers, 9 Cal. 123 ; Carpentier v. Brenham, 40 Cal. 221 ; Jordan v. Sayre, 29 Fla. 100 ; s. c. 10 So. Rep, 823; AVaterson v. Devoe, 18 Kan. 223. 2 Locke V. Moulton, 96 Cal. 21 ; s. c. 30 Pac. Rep. 957 ; Yankton B. & L. Asso, V. Cowling, 10 S. Dak. 535 ; s. c. 74 N. W. Rep. 436. 3 Hall V. Tunnell, 1 Houst. (Del.) 320 ; Newbold v. Newbold, 1 Del. Ch. 310; Cooch V. Gerry, 3 Harr. (Del.) 280 ; Walcop v. McKinney, 10 ilo. 229 ; Sutton V. Mason, 38 Mo. 120 ; Reddick v. Gressman, 49 Mo. 389. * Pease v. Pilot Knob Iron Co., 49 Mo. 124, OP THE mortgagee's INTEREST. 95 certain States, under the lien theory, while the mortgagee, whether before or after default, has no right, qua mortgagee, to oust the mortgagor from possession, yet if, after default, he, without objection on the part of the mortgagor, obtain possession of the land, he may now, qua mortgagee, defend his possession against the mortgagor as long as the debt remains unpaid. ^ But to do this he must not have obtained possession by force or fraud. ^ § 1047. Restriction of Mortgagee's Right to Possession. — Even in those States where the mortgagee's right to posses- sion has not been wholly abolished or has not been restricted until condition broken,] it is always competent for the mort- gagee to effect this by a clause in the mortgage deed.^ Nor is it necessary that this clause should in direct terms nega- tive the mortgagee's right of entry. It will be sufficient if the nature of the condition requires the mortgagor to hold possession in order to perform it ; or if by the terms of the condition such possession in the mortgagor is necessarily implied.* But such a restriction will not be inferred from the mortgagor's having been permitted to occupy the prem- ises, nor from such being the usage of the country.^ Nor would it be inferred from a covenant being inserted in the instrument giving the mortgagee a right to enter upon default made.^ But a parol agreement that the mortgagor should continue to occupy would not be sufficient, as it seems, ^ 1 Bolton V. Brewster, 32 Barb. 389 ; Sahler v. Signer, 44 Barb. 606 ; J^Iickles v. Townsend, 18 N. Y. 575; Pace v. Chaddcrdon , 4 Minn. 499; Tillett v. Eaton, 6 Wis. 30 ; Tallman v. Ely, 6 Wis. 244 ; Schreiber v. Gary, 48 Wis. 208 ; Russi-ll V. Ely, 2 Beach, 575 ; Durand v. Isaacks, 4 McCord, 54; Mitchell j;. Began, 11 Kich. 686 ; Mason v. Beach, 55 Wis. 607. 2 Howell V. Leavitt, 95 N. Y. 617. 8 Coote, Mortg. 343; Flagg r. Flagg, 11 Pick. 475 ; Brown v. Cram, 1 N. H. 169 ; Hartshorn v. Hubbard, 2 N. H. 453. * Wales V. Mellen, 1 Gray, 512 ; Lamb v. Foss, 21 Me. 240; Brown v. Leach, 85 Me. 39 ; Norton v. Webb, id. 218 ; Dearborn v. Dearborn, 9 N. H. 117 ; Flan- ders V. Lamphear, id. 201 ; Rhoades v. Parker, 10 N. H. 83 ; Flagg v. Flagg, 11 Pick. 475 ; Clay v. Wren, 34 Me. 187. 5 Stowell V. Pike, 2 Me. 387 ; Brown v. Cram, 1 N. H. 169 ; Hartshorn u. Hub- bard, 2 N. H. 453. But see contra, Jackson v. Hopkins, 18 Johns. 487. 6 Rogers v. Grazebrook, 8 Q. B. 895. ' Colman v. Packard, 16 Mass. 39. 96 MORTGAGES. tliougli it has been held that an agreement to that effect might be if inserted in the note.^ § 1048. Rights of Mortgagor and Mortgagee go to Assignees. — These rights and liabilities of mortgagor and mortgagee, in respect to taking and holding possession, extend to their respective assignees. ^ Thus a second mortgage is as to the second mortgagee but an assignment of the mortgagor's inter- est; though, as against the mortgagor, it is such a transfer of the interest of the latter, that, if the first mortgage is dis- charged, the second comes into its place as a first mortgage. As assignee of the mortgagor, the second mortgagee may insist upon all the rights of the mortgagor against the first mortgagee, such as that of calling him to account, redeeming from him, and the like.^ But the converse of this proposi- tion is not true, to the extent that a second mortgagee, or a purchaser from a mortgagor, assumes the liability of the mortgagor, except so far as it is charged upon the estate specifically. He may or may not redeem the estate from the first mortgage at his election, or do any act to prevent a fore- closure of the same.^ Such assignee of the mortgagor does not become personally liable for the mortgage debt, in the absence of express agreement upon the subject,^ even though the deed under which he claims conveys the estate " subject to an outstanding mortgage."^ But where the mortgagor's deed recited that a part of the consideration was that the grantee was to pay the mortgage debt, it was held to make the purchaser personally liable for the debt to the moi'tgagor.'' 1 Clay V. Wren, 34 Me. 187. 2 Jackson v. Minkler, 10 Johns. 480 ; Jackson v. Bowen, 7 Cow. 13 ; Belding V. Manly, 21 Vt. 550 ; Erskine v. Townsend, 2 Mass. 493 ; Gould v. Newman, 6 Mass. 239 ; Norfhainpton Mills v. Ames, 8 Met. 1 ; Jackson v. Fuller, 4 Johns. 215; Jackson v. Hopkins, 18 Johns. 487; Jackson v. Stackhouse, 1 Cow. 122; Henshaw i-. AVells, 9 Humph. 568; Eastman v. Batchelder, 36 N. H. 141. 3 Goodman v. White, 26 Conn. 317. 4 Mclntier v. Shaw, 6 Allen, 83, 85. 5 Johnson v. Monell, 13 Iowa, 300 ; Aufricht v. Northrop, 20 Iowa, 61 ; Corn- stock ?'. Hitt, 37 111. 542. s Pike V. Goodnow, 12 Allen, 472 ; Strong v. Converse, 8 Allen, 557 ; Fiske V. Tolman, 124 Mass. 254 ; Lawrence v. Towle, 59 N. H. 28; Moore's App., 88 Penn. St. 450 ; Miles v. Miles, 6 Oreg. 266. 7 Furnas v. Durgin, 119 Ma.ss. 500 ; post, §§ 1138, 2408. In Mason v. Bur- nard, 86 Mo. 384 ; Fithian v. Monks, 43 Mo. 502, under a statute holding the OF THE mortgagee's INTEREST. 97 In determining the order of precedence of rights as assignees, where there are several successive mortgages, and anything remains after satisfying the first mortgage, reference would ordinarily be had to the order of their record. But it is com- petent to show that, where two mortgages were made, it was agreed by one of the mortgagees that the mortgage of the other should take precedence ; so the third mortgagee may show that the second deed never was delivered, or was deliv- ered upon a condition which had never been performed.^ If, after such second mortgage, the first buys in the mortgagor's equity, he does not thereby affect the second mortgagee's right to redeem from the first mortgage ;2 [the reason for this being, as will hereafter be explained more fully, that the purchaser of the mortgagor's interest, whether it be con- sidered an equity of redemption or the legal estate, is, as to subsequent incumbrances, allowed to keep his mortgage alive in order, to the extent of his mortgage, to protect himself against such subsequent incumbrances by forcing redemption.] § 1049. Of Notice to Assignees. — It may be assumed as a general proposition, that whatever may be the term applied to a mortgagee's interest, whether lien or estate, it requires a deed to create it; and the ordinary rules of registration apply to this as to other deeds of conveyance.^ No one but a second assignee of a mortgage, or some one claiming under such mortgage, can take advantage of a want of record by the first assignee; because as to all taking title subsequent to the mortgage its existence, undischarged on the record, is notice by which they are bound in favor of the unrecorded assignee. "mortgagor" liable, it was held that tlie mortgagor's grantee by a deed poll, re- citing that the grantee was to pay the mortgage, was not liable thereby to the mortgagee. 1 Freeman v. Schroeder, 43 Barb. 618; Wilsey v. Dennis, 44 Barb. 354. 2 Thompson v. Chandler, 7 Me. 377. 8 Schmidt v. Ployt, 1 Edw. Ch. 652; Johnson v. Stagg, 2 Johns. 510, 524; Vanderkemp v. Shelton, 11 Paige, 28 ; Clark v. Jenkins, 5 Pick. 280 ; Rigney v. Lovejoy, 13 N. H. 247 ; Phillips v. LewistonBk., 18 Penn. St. 394 ; Krwin v. Shue}% 8 Ohio St. 509 ; Heard v. Evans, 1 Freeman, Ch. (Miss. ) 79, 84. In the latter case, the Chancellor says : "The legal title was in H. (the mortgagee), sub- ject to E.'s equity of redemption. They (the purchasers) were bound to have in- quired whether that legal title had been divested out of H. and vested in E. This could only be done in one of two ways, — either by reconveyance of H. or an absolute payment or satisfaction of the mortgage debt." VOL. II. —7 98 MORTGAGES. But a second assignee, without notice, takes precedence of the prior unrecorded assignment. ^ If the assignment of amort- gage is recorded, a subsequent release by the mortgagee to one claiming under the mortgagor, or dealing with the mort- gage, would be of no validity, as against such assignee. ^ § 1050. Mortgagee's Interest, how assigned. — If a mort- gagee in possession convey the estate by quitclaim deed, it passes all the title and interest he has in the premises.^ But if the mortgagee be out of possession, and the mortgagor, or one claiming under him, is in possession of the premises, an assignment by the mortgagee will be good, although he may have been ousted by one holding a prior mortgage of the premises.* Accordingly, the interests of a mortgagee may be transferred or conveyed by .the same form of deeds by which any owner of a legal estate can convey it; and the effect of record or want of it is the same as in other convey- ances.^ Not only is a common law mortgage a conveyance in fee of real estate, but an assignment of a mortgage is a con- veyance of real estate to the assignee. And if a mortgagee mortgage the land of which he holds a mortgage, it will con- vey his interest in it.^ So where a mortgagee assigned his bond and mortgage by a deed which was recorded, and the assignee then assigned to A, who did not cause his assign- ment to be recorded, the former then assigned it to B to secure a loan for one hundred dollars, and a debt already due of seventy-five dollars, and B put his assignment upon record. In a question of precedence between A and B, the court held 1 Purdy V. Huntington, 42 N. Y. 335 ; Campbell v. Yedder, 3 Keyes, 174 ; Van Keuren v. Corkins, 66 N. Y. 77 ; Crane v. Turner, 67 N. Y. 437. What circumstances will make the duty of inquiry equal to notice, see Morris v. Bacon, 123 Mass. 58 ; Strong v. Jackson, id. 60. 2 Belden v. ileeker, 47 N. Y. 307 ; Campbell v. Yedder, su2)ra. In Burhans V. Hutcheson, 25 Kan. 625, such a release to the mortgagor was held invalid against the indorsee of a negotiable mortgage note, though the assignment was not recorded. 3 Conner v. Whitmore, 52 Me. 185 ; Townsend Sav. Bk. v. Todd, 47 Conn. 190, 214 ; Welsh v. Phillips, 54 Ala. 309. * Lincoln v. Emerson, 108 Mass. 87. 5 Welsh V. Priest, 8 Allen, 165 ; Smith v. Keohane, 6 Bradw. 585. 6 Cutter V. Davenport, 1 Pick. 81 ; Hutchins v. State Bk., 12 Met. 421, 424 ; Murdock v. Chapman, 9 Gray, 156; Douglas u. Durin, 51 Me. 121. See Givan V. Doe, 7 Blackf. 212. OP THE mortgagee's mTFJlEST- P9 that, to the extent that B was a purchaser for a valuable con- sideration paid, he should, by his prior registration, acquire a right prior to that of A. But that, as to his old debt, his equity was no greater than that of A, and it should be post- poned to that of A J So where A, to secure a loan of money, made a mortgage which the mortgagee failed to record, and then made a second mortgage to B to secure an existing debt, who had no notice of the first, it was held that the prior mort- gage had precedence, as the second was made without any new consideration, 2 In New York, where the mortgagee sold the estate for the purpose of foreclosing the mortgage, but failed to give proper notice to the mortgagor so as to operate as a foreclosure, it was held to constitute an assignment of the mortgage to the purchaser. And in Massachusetts, a war- ranty deed of the premises by the mortgagee in possession is held to be an assignment of the mortgage.^ But if the mort- gagee do not assign the debt with his interest as mortgagee, it makes such assignee trustee only for him who holds the debt.* The assignment of a mortgage implies no guaranty as to the amount due thereon.^ § 1051. Mortgagee's Interest, how assigned, continued. — Treating the interest of a mortgagee as an interest in lands and tenements even of the most inconsiderable account, it cannot as a common law right be assigned without a deed or note in writing signed by the mortgagee or his agent, or by act and operation of law in accordance with the third section of the statute of frauds.^ In conformity with the notion that the legal interest of a mortgagee is in the nature of an estate in lands, the courts of Massachusetts and Maine hold, that it can only be assigned by a deed which may be made upon the original mortgage deed, or by a separate instrument, without delivering over the original deed.^ In Maine, therefore, the 1 Pickett V. Barron, 29 Barb. 505. 2 Gary v. White, 52 N. Y. 138, 8 Robinson v. Ryan, 25 X, Y. 320, 325 ; Jackson y. Bowen, 7 Cowen, 13 ; Ruggles V. Barton, 13 Gray, 506, * Sanger V. Bancroft, 12 Gray, 365, 367. See Symes v. Hill, Quincy, 318. 6 Bree v. Holbeck, Doug. 655 ; Hammond v. Lewis, 1 How. 1-i. 6 Warden v. Adams, 15 Mass. 233, 236. ' Parsons v. Welles, 17 Mass. 419 ; Warden v. Adams, 15 Mass. 233 ; Gould lOG MORTGAGES. assignment of a mortgage debt passes no interest at law in the land, and the mortgagee may sue for and recover posses- sion of the same.i Therefore, an assignment of a mortgage debt and mortgage by an instrument in writing, not under seal, does not pass the mortgagee's interest. It must be by deed acknowledged and recorded. ^ And even in Pennsyl- vania, where some of the cases regard a mortgagee's inter- est so little like a legal estate in lands, the court use this language in a modern case: "A mortgage is in form a con- veyance of the land, and an assignment of it is another con- veyance of the same land. The assignment of a mortgage is therefore within the language of the recording act," etc.^ Although an assignment of a mortgage debt in Pennsylvania is said to transfer the right to the mortgage itself, a devise of all a testator's personal property passes his mortgages, and whatever will carry money secured by a mortgage will carry the mortgagee's interest in the mortgaged premises.* Ac- cordingly, it has been held, that if a mortgagor make demand of and tender to the mortgagee for purposes of redemption, and bring his bill accordingly, it will be effectual, though the mortgage may have been assigned, if the mortgagor has not been notified of such assignment, or it has not been recorded.^ But in California it is doubted if the assignment of a mort- is. Newman, 6 Mass. 239 ; Vose v. Handy, 2 Me. 322 ; Prescott v. Ellingwood, 23 Me. 345 ; Lyford v. Ross, 33 Me. 197 ; Dwinel v. Perley, 32 Me. 197 ; Young V. Miller, 6 Gray, 152 ; Mitchell v. Burnham, 44 Me. 286 ; Ruggles v. Barton, 13 Gray, 506 ; Welsh v. Phillips, 54 Ala. 309. 1 Stanley v. Kempton, 59 Me. 472. 2 Adams v. Parker, 12 Gray, 53. 3 Philips M. Lewiston Bk., 18 Penn. St. 394. So in Indiana, Givan v. Doe, 7 Blackf. 210 ; and New York, AVilliams v. Birbeck, 1 Hoff. Ch. 359 ; Fort u. Burch, 5 Denio, 187. See also Mitchell v. Burnham, 44 Me. 302 ; Hutchins v. State Bk., 12 Met. 424; Svvartz v. Leist, 13 Ohio St. 419 ; Henderson v. Pilgrim, 22 Tex. 464. And in Ohio and Iowa it was held, that an unrecorded assignment, though an equitable one, is inoperative against third parties in law and in equity. Fosdick V. Barr, 3 Ohio St. 471 ; Bank v. Anderson, 14 Iowa, 544 ; Bowling v. Cook, 39 Iowa, 200. But in New Hampshire the assignment of a mortgage, even though made by deed, need not be recorded. Wilson v, Kimball, 27 N. H. 300. 4 Moore v. Cornell, 68 Penn. St. 320. 5 l^Iitchell V. Bnrnham, 44 Me. 302 ; Henderson v. Pilgrim, 22 Tex. 464 ; Gregory r. Savage, 32 Conn. 250. OF THE mortgagee's INTERf:ST. 101 gage comes within the category of "real estate," or "an in- terest in real estate." ^ § 1052. Assignment by Deed. — It has accordingly been held, that a deed of quitclaim or mortgage of the premises in usual form, by the mortgagee to a third party, would operate as an assignment of his interest as mortgagee ;2 and a deed with covenants of warranty would convey all the grantor's right, and operate as an equital)le assignment of the debt secured by the mortgage.^ If the mortgagee convey a part of the mortgaged premises to a purchaser by a separate deed, it does not extinguish the mortgage on that part as to the mort- gagor; it only transfers the interest of the mortgagee in that part of the estate.^ In the States given in the note it is held that the legal interest in a mortgage deed can be transferred or assigned, but not without a sealed instrument.^ 1 McCabe v. Grey, 20 Cal. 509, 516. So in Kansas, if the note is negotiable. Burhans v. Hutclieson, 25 Kan. 625. 2 Hunt V. Hunt, 14 Pick. 374; Freeman v. M'Gaw, 15 Pick. 82, in which separate obligations to pay had been given by the mortgagor. Barker v. Parker, 4 Pick. 505 ; Warden v. Adams, 15 Mass. 233 ; Cole v. Edgerly, 48 Me. 108, 112 ; Murdock v. Chapman, 9 Gray, 156; Kilborn v. Robbins, 8 Allen, 472; Givan v. Doe, 7 Blackf. 210 ; Dorkray v. Noble, 8 Me. 278, where there was not a .separate obligation. See also Crooker v. Jewell, 31 Me. 306 ; Welch v. Priest, 8 Allen, 165; Savage v. Hall, 12 Gray, 363; Conner r. Whitmore, 52 Me. 185; South- wick V. Atlantic Ins. Co., 133 Mass. 457. The same is held in Vermont. CoUamer V. Langdon, 29 Vt. 32. Contra, in New Hampshire. Furbush v. Goodwin, 25 N. H. 425. 3 Lawrence v. Stratton, 6 Gush. 163 ; Ruggles v. Barton, 13 Gray, 506. See also Givan v. Doe, 7 Blackf. 210 ; Olmstead v. Elder, 2 Sandf. 325. Contra, Wilson V. Troup, 2 Cow. 195. Whether such a deed of warranty will transfer a mortgage debt in New Hampshire, qiuere. Weeks v. Eaton, 15 N. H. 145 ; Hinds V. Ballon, 44 N. H. 619, 621. The effect of a conveyance or transfer of the mortgagee's legal estate upon the debt itself will be further considered hereafter. See Belding v. Manly, 21 Vt. 550. * Wyman v. Hooper, 2 Gray, 141 ; Grover v. Thatcher, 4 Gray, 526. 6 Alabama, Graham v. Newman, 21 Ala. 497 ; Welsh v. Phillips, 54 Ala. 309, requires a deed. So Massachusetts, Cutter v. Davenport, 1 Pick. 81. Pennsyl- vania, Moore v. Cornell, 68 Penn. St. 320. Ohio, Swartz v. Leist, 13 Ohio St. 419. Minnesota, Morrison v. Mendenhall, 18 Minn. 232 ; Johnson v. Carpenter, 7 Minn. 176, 184, where the doctrine that the note carries the estate at law is declared " inherently vicious, and one which would tend very much to unsettle titles." So in Connecticut the assignee of the mortgage only is held to be a trustee for the creditor owning the debt, Huntington v. Smith, 4 Conn. 235 ; Quinebaug Bk. V. French, 17 Conn. 129, 134 ; unless by such assignment the debt is impliedly assigned, Bulkeley v. Chapman, 9 Conn. 5. In New Jersey, a deed was formerly 102 MORTGAGES. § 1053. When Mortgage and Debt inseparable. — In New York and other States which have adopted the lien theory, it is held, that a conveyance or assignment of the mortgaged premises, without specifically assigning the debt or what is equivalent, would be void. It would pass no estate, and any one holding under such a deed would be as to the mortgagor a trespasser. This is based upon the idea that the debt is the principal thing; that it cannot be detached from the interest in the land ; and a subsequent assignment of the debt would pass the land, notwithstanding such prior deed.^ The same rule of construction has been adopted as law in the States given in the note;^ though in some, as in Missouri, with the required. Den v. Dimon, 10 N. J. 156. But this is now altered by statute. Mulford V. Peterson, 35 N. J. 127 1 Wilson V. Troup, 2 Cow. 195 ; Jackson v. Bronson, 19 Johns. 325 ; Aymar V. Bill, 5 Johns. Ch. 570 ; Jackson v. Willard, 4 Johns. 41 ; Merritt v. Bartholick, 36 N. Y. 44 ; Purdy v. Huntington, 42 N. Y. 334; Smith v. Moore, 11 N. H. 55 ; Ellison V. Daniels, id. 274 ; Southerin v. Mendum, 5 N. H. 420 ; Furbush v. Goodwin, 25 N. H. 425 ; Lamprey i;. Nudd, 29 N. H. 299 ; Weeks v. Eaton, 15 N. H. 145 ; Smith v. Smith, id. 55. In these last cases, however, it was con- ceded, that, if the mortgagee was in possession, his deed would pass his rights as mortgagee. Wallace v. Goodall, 18 N. H. 439, and Hinds i-. Ballou, 44 jST. H. 619, 621, reaffirming this doctrine. See also Hutchins v. Carleton, 19 N. H. 487 ; Hobson V. Roles, 20 N. H. 41. And an unrecorded assignment of the debt and mortgage is only postponed to a recorded assignment of the debt, but not of the mortgaged premises alone. Purdy v. Huntington, 42 N. Y. 334 ; Kellogg v. Smith, 26 N. Y. 18. 2 Peters v. Jamestown, 5 Cal. 334 ; Nagle v. Macy, 9 Cal. 426 ; Burdett v. Clay, 8 B. Mon. 287 ; Willis v. Vallette, 4 Met. 186 ; Martin v. McKeynolds, 6 Mich. 70 ; Ladue v. Detroit, etc. R. R., 13 Mich. 380 ; Bailey v. Gould, Walker, Ch. 478 ; Hays v. Lewis, 17 Wis. 210 ; Dick v. Mawry, 9 Sm. & M. 448 ; Perkins r. Sterne, 23 Tex. 563; Rankin v. Major, 9 Iowa, 297; Burton v. Hintrager, 18 Iowa, 348 ; Swan v. Yaple, 35 Iowa, 248 ; Mack v. Wetzlar, 39 Cal. 247 ; Yankton Building & L. A. v. Dowling, 10 S. Dak. 540 ; s. c. 74 N. W. 438. But if the assignment of the mortgage is not recorded, strangers without notice are not bound. Bank v. Anderson, 14 Iowa, 544. In Indiana, the contrary rule announced in Givan v. Doe, 7 Blackf. 210, seems overruled by later cases. Hough v. Osborne, 7 Ind. 140 ; Johnson v. Cornett, 29 Ind. 59 ; Hubbard v. Harrison, 38 Ind. 323. And see Blair v. Bass, 4 Blackf. 539. On the other hand, the rule that the mort- gagee has no interest at law except the debt, which formerly obtained in Alabama, Doe V. McLoskey, 1 Ala. 708, seems now altered. Doe v. Phillips, 54 Ala. 309. In Minnesota, the extent of the doctrine seems to be that a mortgagee's mere quitclaim will not convey any interest. Johnson v. Lewis, 13 Minn. 364 ; Everest 1-. Ferris, 16 Minn. 426, following Hill v. Edwards, 11 Minn. 22, 29. And gen- erally it will be found that the cases holding the debt the principal, and the mort- gage only an incident, have arisen in equity. Cases supra. See also MuQuie v. OF THE mortgagee's INTEREST. 103 qualification that after entry for condition broken the mort- gagee's conveyance will carry the debt, if it appeared to be his intention to assign.^ § 1054. Mortgagee as Trustee for Mortgagor. — Until fore- closure, a mortgagee in possession is so far regarded as a trus- tee of the mortgagor, that he can do nothing which is imposed upon him, or which he acquires a right to do by virtue of his possession, and claim a personal benefit therefrom, if the mortgagor offers to redeem. Thus, for instance, if a mort- gagee in possession suffer the land to be sold for taxes, and bid the estate in, in his own name, he cannot set up such title against his mortgagor, and can only charge what he paid to save the estate in his account as mortgagee. ^ So far as he holds as trustee, it is, first, for his own security ; second, any surplus for the benefit of the mortgagor; thirdly, to reconvey the estate on being paid the debt within the time limited by the statute, and, upon such redemption, to account for the rents and profits. So if, as such mortgagee in posses- sion, he avails himself of the right to renew a lease, it will be deemed for the benefit of the party who is entitled to the. estate. 3 But he is not, as such trustee, under any obligation to redeem from a prior mortgage, or do any act to prevent a foreclosure upon such mortgage.^ § 1055. Mortgagee as Trustee for Assignee of Debt. — This, however, bears only upon the legal estate of the holder of the mortgagee's interest. If, before such foreclosure, the debt secured had been assigned to a third person, as bona fide holder, the mortgagee or his assigns, holders of the legal estate, would be trustees thereof for the benefit of the cred- itor, with all the duties and obligations, in equity, of trus- Peay, 58 Mo. 56 ; Lawrence v. Knap, 1 Root, 248 ; Humphrey v. Buisson, 19 Minn. 221 ; Emanuel v. Hunt, 2 Ala. 190 ; Paine v. French, 4 Ohio, 318 ; Heller v. Meis, 52 Ohio Sup. Ct. 287. 1 Watson V. Hutchins, 60 Mo. 550 ; Pickett v. Jones, 63 Mo. 195 ; Thayer v. Campbell, 9 Mo. 277. And in Indiana, in equity. French v. Turner, 15 Ind. 59 ; Martin v. Reed, 30 Ind. 218. See also Hill v. Edwards, 11 Minn. 22, 29. 2 Story, Eq. § 1016 ; Brown v. Simons, 44 N. H. 475 ; Stewart v. Crosby, 50 Me. 134. 3 Holridge v. Gillespie, 2 Johns. Ch. 30, 33 ; Rakestraw v. Brewer, 2 P. Wms. 511. See post, § 1148 e< seq. * Mclntier v. Shaw, 6 Allen, 81, 85 ; Bethlehem v. Annis, 40 X. H. 40. 104 MORTGAGES. tees, which will be hereafter more fully explained.^ It was accordingly held by the court of the United States, that the assignment of a mortgage debt carries, in equity, the mort- gage by which it is secured. ^ And if the mortgage be fore- closed by the one holding the legal estate in the mortgage, it will satisfy and bar the mortgage notes outstanding in the hands of others, in full or in part, according to the value of the estate. The mortgagor himself is discharged by such foreclosure, leaving the holders of the notes to adjust the effect of the satisfaction between themselves.^ And the same principle applies where, as in England, the legal estate of a mortgagee descends to his heirs, while the debt goes to his executors. The heir becomes trustee for the holder of the debt> As full force and effect is, in this way, given to the equitable assignment of mortgages by transferring the mort- gage debt, as in those States in which, as will be seen, such a transfer operated upon the legal estate. It makes such transferee a cestui que trust, instead of an owner of the legal estate, an assignment of the debt being an equitable assign- ment of the mortgagee's interest, though it has no direct effect upon the title to the legal estate.^ Nor could the mort- gagor, after knowledge of such transfer, discharge the lien en the land by any tender or payment made to the mortgagee ; nor would a discharge executed by the mortgagee, to one knowing of such transfer, operate to discharge the lien upon the estate existing in favor of the holder of the debt.^ And 1 Story, Eq. Jur. § 1023, n. ; Crane t;. March, 4 Pick. 131 ; Parsons v. Welles, 17 Mass. 419 ; Young v. Miller, 6 Gray, 152 ; Bryant v. Damon, id. 564 ; Moore V. Ware, 38 Me. 496 ; Johnson v. Candage, 31 Me. 28; Reading of Trowbridge, J., 8 Mass. 558 ; AVarren v. Homestead, 33 Me. 256 ; Lord v. Crowell, 75 Me. 399 ; Edgerton v. Young, 43 111. 464 ; Foster v. Strong, 5 Bradw. 223 ; Chic, D. & V. R. R. V. Lowenthal, 93 111. 433 ; Center v. Plant. Bk., 22 Ala. 743 ; Keyes v. Wood, 21 Vt. 331 ; Belcher v. Costello, 122 Mass. 189 : Jlorris v. Bacon, 123 Mass. .58; Welch r. Goodwin, id. 71. In Blunt v. Norris, id. 55, and Strong V. Jackson, id. 60, the transfer of the mortgage note did not carry the mortgage, because fraudulent, or with implied notice of fraud. 2 Batesville Inst. v. KaufFman, 18 Wall. 151. 3 Haynes v. Wellington, 25 Me. 458 ; Patten v. Pearson, 57 Me. 434. * Wins. Real Prop. 354. 5 Warren v. Homestead, 33 Me. 256; Cutler v. Haven, 8 Pick. 490. See Bur- ton V. Ba.xter, 7 Blackf. 297 ; Graham v. Newman, 21 Ala. 497. s Cutler V. Haven, supra. OF THE mortgagee's INTEREST. 105 thus in substance the effect is the same, whether the transfer of the debt operates as an assignment of the mortgage, or a mere equitable assignment to be enforced through a trustee.^ § 1056. Assignment by Transfer of Mortgage Debt. — In New Hampshire, as a rule of law, the transfer of a mortgage debt passes the interest of the mortgagee in the land itself, as completely and effectually as if done by a deed. And this transfer may be made by parol, though the debt is not nego- tiable in form, nor so transferred as that the assignee could maintain an action at law in his own name to recover it.2 Several other States coincide substantially in giving to the transfer of the mortgage debt the full effect of a transfer of the mortgage also ; but these are mostly where the mortgage creates a lien only.^ But such is not the law in Massachu- 1 Brown v. Blydenburgli, 7 N. Y. 141; Page v. Pierce, 26 N. H. 317; Steven- son V. Black, 1 N. J. E(i.338 ; Keyes v. Wood, 21 Vt. 339 ; Donley v. Hays, 17 S. & R. 400 ; Pattison v. Hull, 9 Cow. 747 ; Henderson v. Herrod, 10 S. & M. 631 ; CuUum v. Erwin, 4 Ala. 452 ; Phelan v. Olney, 6 Cal. 478 ; Johnson v. Brown, 31 N. H. 405. In Waterman v. Hunt, 2 R. I. 298, it was held that two assignees of two distinct debts, secured by the same mortgage, have equal equities as to their respective debts in respect to the mortgage, though it was assigned to one only of them. See Gregory v. Savage, 32 Conn. 250 ; Henderson v. Pilgrim, 22 Tex. 464 ; Foley v. Rose, 123 Mass. 557. 2 Rigney v. Lovejoy, 13 N. H. 247 ; Smith v. Moore, 11 N. H. 55 ; Southerin V. Mendura, 5 N. H. 420 ; Blake v. Williams, 36 N. H. 39 ; Northy v. Xorthy, 45 N. H. 144 ; Whittemore v. Gibbs, 24 N. H. 484. 3 Green v. Hart, 1 Johns. 580 ; Jackson v. Blodget, 5 Cow. 202 ; Wilson v. Troup, 2 Cow. 231 ; Jackson v. Bronson, 19 Johns. 325 ; Runyau v. ]\Iersereau, 11 Johns. 534 ; Miles v. Gray, 4 B. Mon. 417 ; Crow v. Vance, 4 Iowa, 434 ; Vimont v. Stitt, 6 B. Mon. 477 ; Wilson v. Hayward, 2 Fla. 27 ; and 6 Fla. 171 ; Dick V. Mawry, 9 Sm. & M. 448 ; Burdett v. Clay, 8 B. Mon. 287 ; Dougherty v. Randall, 3 Mich. 581 ; Ladue v. Detroit, etc. R. R., 13 Mich. 396 ; Ord v. McKee, 5 Cal. 515 ; Phelan v. Olnev, 6 Cal. 478 ; Willis v. Farley, 24 Cal. 490 ; Fisher jj. Otis, 3 Chand. (Wis.) 83; Martineau v. M'Colhun, 4 Chand. (Wis.) 153. So Martin v. McReynolds, 6 Mich. 70 ; Cooper v. Ulmann, Walker, Ch. 251 ; Kortright v. Cady, 21 N. Y. 343, 364 ; Wright v. Eaves, 10 Rich. Eq. 582 ; Perkins V. Sterne, 23 Tex. 563; Rankin v. Major, 9 Iowa, 297; Burhans v. Hutcheson, 25 Kan. 625 ; Donaldson v. Grant, 15 Utah, 231 ; s. c. 49 Pac. Rep. 779 ; Ger- man-American Bk. V. Carondelet Real-Est. Co., 150 Mo. 570 ; s. c. 51 S. W. Rep. 691 ; Fred Miller Brewing Co. v. Manasse, 99 Wis. 99 ; s. c. 74 N. W. Rep. 535 ; Anderson v. Kreidler, 56 Neb. 171 ; s. c. 76 N. W. Rep. 581 ; Greeley State Bank V. Line, 50 Neb. 434, which was a case of equitable assignment of the note by de- livery, without indorsement ; Franke v. Neisler, 97 Wis. 364 ; s. c. 72 N. W. Rep. 887 ; Perrin v. Trimble (Tenn. Ch. App.), 48 S. W. Rep. 125; Robinson Female Seminary v. Campbell, 60 Kan. 60 ; s. c. 55 Pac. Rep. 276. In Pennsylvania, the 106 MORTGAGES. setts and other States, where a mortgage creates an estate.^ [An assignment by indorsement of the mortgage note or by mere delivery of the evidence of the debt is attended by the inconvenience that the registry laws generally make no pro- vision by which such an assignment can be recorded to give notice to subsequent grantees and lienors, ^ and when the mortgage is paid it may be found practically difficult to secure a proper cancellation upon the record. But posses- sion of the evidence of debt and of the mortgage is notice to a subsequent assignee.^] § 1057. Several Debts secured by Same Mortgage. — As a general proposition, if there are several debts secured by the same mortgage, and these have been successively assigned, the assignees will share the benefit of the security ^ro rata.^ It was accordingly held that the holder of a coupon taken from a bond which was secured by mortgage had a lien upon the mortgaged property;^ though in some of the States the equities of the parties in such case attach to the assignees according to the order of priority in time of assignment.^ But if the debts secured by the same mortgage are payable at different times, they are to be paid from the mortgage fund broad language of the early cases, Richert v. Madeira, 1 Rawle, 325 ; Betz v. Heeb- ner, 1 Penn. 280 ; Donley v. Hays, 17 S. & R. 400 ; Craft v. Webster, 4 Rawle, 242 ; Mott v. Clark, 9 Penn. St. 399, 406, seems qualified by Phillips v. Lewiston Bk., 18 Penn. St. 394. 1 Symes v. Hill, Quincy R. 318; Young v. Miller, 6 Gray, 152. Thus in Illi- nois, Missouri, Connecticut, and Alabama, the transfer of the note alone carries only an equitable right in the real estate. Ante, §§ 1052, 1053, n., and 1054, n., and cases cited ; Anderson v. Baumgartner, 27 Mo. 80; Gregorys. Savage, 32 Conn. 250 ; Potter v. McDowell, 43 Mo. 93. And perhaps also in Indiana since R. S. 1881, § 1093. Bourland v. Kipp, 55 111. 376. 2 See Donaldson v. Grant, 15 Utah, 231 ; s. c. 49 Pac. Rep. 779. 3 Fred Miller Brewing Co. v. Manasse, 99 Wis. 99 ; s. c. 74 N. W. Rep. 535. * Waterman v. Hunt, 2 R. I. 298 ; Henderson v. Herrod, 23 Miss. 434 ; Keyes V. Wood, 21 Vt. 331 ; Pattison v. Hull, 9 Cow. 747 ; Phelan v. Olney, 6 Gal. 478 ; M'Clanahan v. Chambers, 1 Mon. 44 ; Mohler's App., 5 Penn. St. 418 ; Bank of Eng. V. Tarleton, 23 Miss. 173; Parker v. Mercer, 6 How. (Miss.) 320; Terry «), Woods, 6Sm. & M. 139 ; Swartz v. Leist, 13 Ohio St. 419. See Page v. Pierce, 26 N. H. 317. 5 Mellen v. Rutland, etc. R. R., 40 Vt. 399. See Arents v. Commonwealth, 18 Gratt. 750. 6 Cullum V. Erwin, 4 Ala. 452 ; Mobile Bk. v. Planters' Bk., 9 Ala. 645. See also State Bk. v. Tweedy, 8 Blackf. 447. OF THE mortgagee's INTEREST. 107 in the order in which they are due.^ But it was held in Michigan and Maryhmd that if a mortgage secures several successive notes, or a debt payable in instalments, neither has precedence in equity to the benefit of the mortgage, as would be the case in successive mortgages. They are to be paid ratably out of the estate if it is insufiicient to satisfy the whole. 2 And it is always competent for the holder of a mort- gage made to secure several debts, so long as he retains them, to assign one or more of them in such a manner as to give the holder a preference as to these over the other debts. ^ On the other hand, where a mortgage secured three notes, and the mortgagee assigned two of them with the mortgage, but not to affect his interest in the mortgage as security for the other note, and then assigned the other note to another per- son, and the first assignee foreclosed the mortgage, it was held that he only acquired thereby a pro rata share of the estate in common with the mortgagee, and for himself alone, and not in trust for the holder of the other note. The action of the assignee had no effect upon the rights of such holder of the other note ; he only foreclosed to the extent of his own interest.^ From this doctrine, that the transfer of the debt passes the mortgage interest in the land, questions of no in- considerable difficulty have arisen, where the same mortgage deed secures several distinct debts, like several notes of hand, and these have been transferred to different individuals with- out a formal assignment of the mortgage. In Alabama and several other States, it is considered as a separate mortgage in respect to each debt, and an assignment of one of these debts carries with it its proportion of the mortgage interest ; ^ 1 U. S. Bk. V. Covert, 13 Ohio, 240 ; Hunt v. Stiles, 10 N. H. 466; Wood v. Trask, 7 Wis. 566 ; Wilson v. Hayward, 6 Fla. 171 ; Marine Bk. v. Internat. Bk., 9 Wis. 57 ; Stevenson v. Black, 1 N. J. Eq. 338. 2 McCurdy v. Clark, 27 Mich. 445 ; Dixon v. Clayville, 44 Md. 573. So Min- nesota. Wilson V. Eigenbrodt, 30 Minn. 4 ; Hall v. McConnick, 31 Minn. 280. 3 Bryant v. Damon, 6 Gray, 164 ; Bank of Eng. r. Tarleton, 23 Miss. 173 ; Mechanics' Bk. v. Bk. of Niagara, 9 Wend. 410; Cullum v. Erwin, 4 Ala. 452; Laugdon v. Keith, 9 Vt. 299 ; Grattan v. Wiggins, 23 Cal. 16, 30 ; Walker r. De- ment, 42 111. 272. So Foley v. Rose, 123 Mass. 557, where the mortgage was assigned, " so far as the same is security " for the note transferred, a preference was given over the note retained. * Lane v. Davis, 14 Allen, 225. ^ McVay r. Bloodgood, 9 Port. (Ala.) 547; Wilson v. Hayward, 6 Fla. 171; 108 MORTGAGES. and in the distribution of the proceeds resulting from a sale of mortgaged premises, or from insurance paid upon the same, if such proceeds are insufficient to satisfy all the debts se- cured, in full, they are paid to the several holders in the order in which their debts or notes became due. These are, in fact, treated as separate successive mortgages.^ And where the holder of the second pays the first, in order to redeem from that, he may, when he forecloses, include his own and the prior note which he has paid.^ In California, Mississippi, and Pennsylvania, on the contrary, such proceeds are distributable 2^'>'o rata among the holders of the secured debts and notes.^ But in Illinois and Indiana, where one purchased the mortgaged premises, assuming a third note, which the mortgagee had foreclosed, the mortgagee was held estopped to proceed to foreclose two earlier notes secured by the same mortgage.^ In Maine, if a mortgage be made to several to secure separate debts, it creates a tenancy in com- mon in the mortgagees. They may join in a suit upon it, or sue alone. ^ § 1058. Assignment as affected by Lavr of Place. — It is assumed in one case that the rights of parties in respect to the assignment of a debt secured by mortgage will be gov- erned by the law of the place where the agreement is made.^ But if it is to be regarded as a transfer of a legal interest in real estate, it would seem that the mode of making it should be governed by the lex rei sitae, the law of the place where the land is situate.'' Reeder v. Carey, 13 Iowa, 274 ; Isett v. Lucas, 17 Iowa, 503 ; Funk v. ircRe}'nold, 33 111. 481, 497 ; Flower v. Elwood, 66 111. 438 ; Minor v. Hill, 58 Ind. 176 ; Lar- rabee v. Lumbert, 32 Me. 97 ; Mitchell v. Ladew, 36 Mo. 526 ; Bk. U. S. v. Covert, 13 Ohio, 240 ; Gwathmeys v. Raglaud, 1 Rand. 466 ; Wood v. Trask, 7 Wi.s. 566. 1 Cases supra; Rankin v. Major, 9 Iowa, 297 ; Koester v. Burke, 81 111. 436. 2 Preston v. Hodgen, 50 111. 56. 3 Grattan v. Wiggins, 23 Cal. 16 ; Henderson v. Herrod, 23 Miss. 631 ; Donley V. Hays, 17 S. & R. 400. 4 Rains v. Mann, 68 111. 264 ; Hughes v. Frisby, 81 111. 188 ; Minor v. Hill, 58 Ind. 176. s Brown v. Bates, 55 Me. 520. 6 Bank of Eng. v. Tarleton, 23 Miss. 173. See also Dundas v. Bowler, 3 Mc- Lean, 397. ■? Story, Confl. Laws, §§ 363, 364 ; Westlake, Confl. Laws, § 86 ; Goddard v. Sawyer, 9 Allen, 78. OF THE mortgagee's INTEREST. 109 § 1059. Equities of Assignees. — [A mortgage is not iiegoti- al)le; consequently, in those States in which the mortgage creates an estate, any assignee thereof takes it subject to equities existing between the original parties.^ The same is true under the lien theory if the secured debt is non-negoti- able in form. But under the lien theory it is generally held that a bona fide indorsee of a negotiable note secured by mort- gage is entitled to enforce the security notwithstanding the equities existing between the original parties. ^ But the rule has no application unless the assignee is entitled, under the law merchant as indorsee of a negotiable instrument, to the privileges of a bona fide indorsee against the maker. ^J § 1060. Legal Remedy of Equitable Assignee. — There are various modes of foreclosure. In some of the States, as will hereafter be shown when considering the subject of foreclos- ure, this remedy is attained by sale of the mortgaged prem- ises according to the prescribed forms of law. In most of the States, the remedy of the mortgagee is by proceedings in equity; in some, by what is called a strict foreclosure, such as is usually pursued in England ; in others, by some other form, which, as courts having equity powers, they are author- ized to apply. In such cases there is no incongruity in treat- ing an assignment by parol, as, for instance, by a delivery of the mortgage with the evidence of the debt thereby secured, as good and sufficient to pass the real estate itself. But to treat such an equitable assignment as conveying a legal estate in the land, and giving such assignee a right to recover in a court of common law, upon his own seisin, is apt to strike the mind as an essential departure from the known rules gov- 1 Faris v. Briscoe, 78 111. App. 242 ; Denison v. Gambill, 81 111. App. 170 ; Shippen v. Whittier, 117 111. 282 ; s. c. 7 N. E. Rep. 642. And see Motfett v. Parker, 71 Minn. 139 ; s. c. 73 N. W. Rep. 850. But the assignee does not take subject to equities of third parties of which he had no notice. Humble v. Curtis, 160 111. 193 ; s. c. 43 N. E. Rep. 749. 2 First Nat. Bank v. Robrer, 138 Mo. 369 ; s. c. 39 S. W. Rep. 1047 ; Crawford V. Aultman, 139 Mo. 262 ; s. c. 40 S. W. Rep. 952 ; Borgess Investment Co. v. Vette, 142 Mo. 560 ; s. c. 44 S.W. Rep. 754 ; Thompson v. Maddux, 117 Ala. 468; s. c. 23 So. Rep. 157 ; Mack v. Prang, 104 Wis. 1 ; s. c. 79 N. W. Rep. 770 ; s. c. 45 L. R. A. 407. 3 Ingraham v. Disborough, 47 N. Y. 421 ; Davis i-. Rechstein, 69 N. Y. 440 ; Hill V. Hoole, 116 N. Y. 299 ; Kapps v. Gottlieb, 142 N. Y. 164 ; s. c. 36 N. E. 1052. 110 MORTGAGES. erning the titles and conveyances of lands. But such seems to be the rule of law sustained by a series of decisions in the courts of New Hampshire. Thus in Southerin v. Mendum, •which was a writ of entry, wherein the demandants counted upon their own seisin^ the tenant had made a note payable to one M. or bearer, and a mortgage to him to secure it. The attorney of M. delivered the note to the demandants, and it was held by the court that " they [the demandants] thus be- came the legal holders of the note, and as such were entitled to maintain an action on the mortgage in their own names as assignees without any other evidence of assignment."^ And one of several mortgagees or assignees may join the others in a suit at law upon the mortgage, giving security for costs, and the judgment would be upon the whole land.^ § 1061. What will divest Mortgagee's Seisin or Interest. — If the mortgagee gain possession of the premises before con- dition broken, the payment, cancelling, or discharging of the debt, before that has happened, defeats his estate. And this, it is believed, is universally applicable in this country, as well as in England. The effect of a payment or cancelling of the debt after condition broken is different in different States, and in the same State under different circumstances. Thus, in Massachusetts and Maine, for instance, if the mort- gagee sues to enforce his mortgage, and declares upon it as such, he can only have a judgment for possession after so many days, if the mortgagor fails before that time to pay a liquidated sum, being the amount due ; so that if the debt has really been paid, it operates as an effectual discharge of the mortgage, since it can no longer be enforced. ^ And the same 1 Southerin v. Mendum, 5 N. H. 420 ; Smith v. Moore, 11 N. H. 55 ; Eigney V. Lovejoy, 13 N. H. 247; Page v. Pierce, 26 N. H. 317. If any other State adopts the same doctrine, the authority for the same has been overlooked. The language of the eminent jurist, then Ch. J., in Smith v. Moore, p. 55, in view of the law on this subject, is : " Unless the different purposes of a mortgage are ad- verted to, there would appear to be much confusion in the books relative to the rights of the mortgagor and mortgagee ; and with those purposes in view, an attempt to reconcile them would be made in vain." Some may think the Massa- chusetts system less obnoxious to the objection of confusion than that of New Hampshire. 2 Johnson v. Brown, 31 N. H. 405. 8 Wade V. Howard, 11 Pick. 289 ; Fay v. Cheney, 14 Pick. 399 ; Slay ton v. Mclntyre, 11 Gray, 271 ; Baker v. Gavitt, 128 Mass. 93 ; Vose v. Handy, 2 Me. OP THE mortgagee's INTEREST. Ill effect, though in somewhat different form, would be produced by a like payment or discharge in Pennsylvania and Mary- land.^ But if the mortgagee shall have obtained possession by judgment or otherwise for condition broken, and the debt is satisfied while he is so in possession, the mortgagor is not remitted to his legal seisin and estate, nor is the seisin and estate of the mortgagee defeated. The mortgagor's remedy in such a case is by a bill in equity; and if he enters upon the mortgagee without a proper decree, he may be treated as a trespasser.^ It would be otherwise, however, if the mort- gagee were to take possession after his debt had been satis- fied. ^ Accordingly, in England, Massachusetts, and Maine, it requires a deed of conveyance or release in such a case to divest the mortgagee of his seisin and estate, and a tender of the debt after condition broken will not have the effect to dis- charge the mortgage.^ And in Illinois, if the mortgagee have entered for condition broken, and the debt be paid, the mort- gagor may have ejectment against him to recover possession of the premises.^ But in those States where a transfer or extinguishment of the debt is a transfer or extinguishment of the mortgage estate, a payment or a voluntary forgiving of the debt has the same effect, even if done after condition broken.^ So where a mortgage was assigned to several, an 322 ; Gray v. Jenks, 3 Mason, 520 ; Williams v. Thurlow, 31 Me. 392 ; Stewart V. Crosby, 50 Me. 134 ; Webb v. Flanders, 32 Me. 175. So in Pike v. Goodnow, 12 Allen, 472, where the mortgagee by his dealings with a part of the mortgaged estate so satisfied the mortgage debt that he could not recover possession of the other portion of the estate in an action on his mortgage ; ante, § 1060. 1 Craft V. Webster, 4 Rawle, 242, 253; Paxon v. Paul, 3 Har. & McH. 399. So in New Jersey. Shields v. Lozear, 34 N. J. 496, 504. 2 Wilson V. Ring, 40 Me. 116 ; Hill v. Moore, id. 515 ; Pearce v. Savage, 45 Me. 90 ; Pratt v. Skolfield, id. 386 ; Rowell v. Mitchell, 68 Me. 21 ; Howe V. Lewis, 14 Pick. 329; Parsons v. Welles, 17 Mass. 419; Howard !\ Howard, 3 Met. 557 ; Conner i;. Whitmore, 52 Me. 185. So in Connecticut, Virginia, and Mississippi. Smith r.Vincent, 15 Conn. 1 ; Dudley v. Cadwell, 19 Conn. 218 ; Cross V. Robinson, 21 Conn. 379 ; Norwich v. Hubbard, 22 Conn. 587 ; Faulkner V. Brockenbrough, 4 Rand. 245 ; Wolfe v. Dowell, 13 Sm. & M. 103. And formerly in Kentucky. Breckenridge v. Brook, 2 A. K. Marsh. 335. « Sibley v. Rider, 54 Me. 463 ; Baker v. Gavitt, 128 Mass. 93. * Currier v. Gale, 9 Allen, 522 ; Maynard t?. Hunt, 5 Pick. 240 ; Mitcliell v. Burnham, 44 Me. 286. 6 Holt V. Rees. 44 111. 30. 8 Hawkins v. King, 2 A. K. Marsh. 108 ; Barnes v. Lee, 1 Bibb, 526 ; Craft 112 MOETGAGES. aliquot part of the debt to each, the payment of the share of any one of these extinguishes his interest in the mortgage. ^ So a payment of the mortgage-debt rescinds the power of sale which may have been contained in the mortgage-deed ;2 and a tender of the debt, after the day of payment, bars the right to recover the land under the mortgage.^ § 1062. Enforcing Mortgages on Different Parcels. — After a mortgagee has assigned the mortgage, he can discharge no part of the premises from the mortgage by any formal re- lease.^ But while he holds it, he is not obliged to enforce it fro rata upon the several parcels embraced in the same, though belonging to different persons. He has his election to enforce it upon all or any number of these.^ Any agree- ment by parol at the time of making the mortgage, embrac- ing several parcels, to discharge any one of them, upon the payment of a certain sum, is inoperative. Nor can a mort- gagee in such a case, by releasing one or more of such par- cels, throw more than a pro rata share of the mortgage-debt upon the other parcels, while in the hands of other persons than him by whom the agreement for such release is made.^ And in one case, the court of Wisconsin carried this doctrine to the extent, that if there are two successive mortgages, or a mortgage and a subsequent grant of an estate, and the holder of the first mortgage release the personal liability of the mortgagor for his debt, he would thereby release his V. Webster, 4 Rawle, 253 ; Jackson v. Bronson, 19 Johns. 325 ; Paxon v. Paul, 3 Har. & McH. 399 ; Morgan v. Davis, 2 Har. & McH. 9 ; Berry v. Derwart, 55 Md. 66, 73 ; Rickert v. Madeira, 1 Rawle, 325 ; Runyan v. Mersereau, 11 Johns. 534; Cameron v. Irwin, 5 Hill, 272; Waring u. Smyth, 2 Barb. Ch. 119; Hadley V. Chapin, 11 Paige, 245 ; Blodgett ?•. Wadhanis, Hill & D. 65 ; Anderson v. NeflF, 11 S. & R. 208 ; Armitage v. Wickliffe, 12 B. Mon. 488 ; Perkins v. Dibble, 10 Ohio, 433 ; Thomas' App., 30 Penn. St. 378 ; McMillan v. Richards, 9 Cal. 365 ; Fisher V. Otis, 3 Chand. (Wis.) 83 ; Ladue v. Detroit, etc. R. R., 13 Mich. 380, 396 ; Rj'an V. Dunlap, 17 111. 40; Sherman v. Sherman, 3 Ind. 337. 1 Furbush v. Goodwin, 25 N. H. 425 ; Burnett v. Pratt, 22 Pick. 556. 2 Cameron v. Irwin, 5 Hill, 272. 8 Arnot V. Post, 6 Hill, 65 ; Farmers' Co. v. Edwards, 26 Wend. 541 ; Trimm V, Marsh, 54 N. Y. 599; Jackson v. Crafts, 18 Johns. 115 ; Kortright v. Cady, 21 N. Y. 343. * M'Cormick v. Digby, 8 Blackf. 99. 6 Hughes V. Edwards, 9 Wheat. 489. '' Stevens v. Cooper, 1 Johns. Ch. 425 ; Johnson v. Johnson, 8 N. J. Eq. 561. OF THE mortgagee's INTEREST. 113 claim under the mortgage as against such second mortgagee or purchaser. 1 So, when a first mortgagee, with the knowl- edge that a subsequent mortgage has been made upon a part of the premises included in his mortgage, releases a part or all that portion of the premises which is not included in the second mortgage, and the remaining i)ai't of the estate is not sufficient to pay both mortgages, the first will be postponed to the second in applying the proceeds of the sale of the re- maining part, to the extent that the second mortgagee was injured by the release. But the knowledge of the second mortgage, and that such release will injuriously affect that mortgagee, must be clearly brought home to the first mort- gagee in order to affect him. The mere record of the second mortgage is not notice to the first mortgagee. ^ On the other hand, the assignee of a mortgage cannot, as a general i)ropo- sition, enforce it for more than was actually due from the mortgagor to the mortgagee when it was assigned.^ Nor would the assignee of the mortgagor be estopped to show part payment of the mortgage-debt made before such assign- ment, although the estate was conveyed to him subject to the mortgage-debt.* But in those States where a payment of the debt does not, ipso facto, discharge the mortgage, a parol agreement not to claim under the mortgage while the debt remains could not be enforced.^ § 1063. Payment working Equitable Assignment. — [But while payment of the debt, by whomsoever made, operates to extinguish the mortgage so far as the mortgagee is concerned, either by divesting his seisin at law or by preventing him from enforcing the mortgage in equity, such payment some- times works, by operation of law, an assignment of the mort- gage security enforceable in whole or in part against the land 1 Coyle y.Davis, 20 Wis. 564, 568. And see post, § 1132. 2 James !•. Brown, 11 Mich. 25; Reilly v. Mayer, 12 N. J. Eq. 55, 59 ; Blair V. Ward, 10 N. J. Eq. 119, 126 ; Guion i;. Knapp, 6 Paige, 35, 43 ; Cheesebrough V. Millard, 1 Johns. Ch. 401, 414 ; Salem v. E.lgerly, 33 X. H. 46, 50 ; Brown v. Simons, 45 N. H. 211 ; Barr v. Kinard, 4 Strobh. 73 ; Iglehart v. Crane, 42 111. 261 ; Wore. Sav. Bk. v. Thayer, 136 Mass. 459 ; and the contrary doctrine stated in Johnson v. Johnson, supra, seems clearly overruled. 3 Matthews v. Wallwyn, 4 Ves. 118. * Hartley v. Tatham, 2 Abb. (N. Y.) 333, 337, 339. 6 Parker v. Barker, 2 Met. 423 ; Hunt v. Maynard, 6 Pick. 489. VOL. II. — 8 114 MORTGAGES. according as the one paying has a right to be reimbursed, by others interested in the land, either in whole or in part. The rule is this :] If one having a right to redeem mortgaged premises pay the debt, it will be treated as an assignment to him of the mortgage, if it is manifestly for his interest, where the contrary is not clearly expressed or necessarily implied.^ [Thus, as will be fully explained hereafter,^ if the purchaser of the equity of redemption have assumed the debt, and the mortgagor, being personally liable, be forced to pay, he will be subrogated to the mortgagee's rights. So, if a junior incum- brancer pay the mortgage. And if the debt be paid by one of several co-redemptioners whose equities are equal, it will work an extinguishment of the mortgage as to the interest of the one paying, but an assignment for the purpose of enforcing contribution from the others.] But if a stranger volunteer to pay a mortgage-debt he will not thereby acquire the mort- gagee's rights without an actual assignment of the mortgage. Nor would he, though he paid the money at the request of the mortgagor, and under a verbal agreement that he might have the benefit of the mortgage as security. And where, as an inducement to a third party to pay the money due upon a mortgage, the mortgagor gave him a note for a certain sum as a bonus, and secured it by a mortgage upon the same land, it was held, that by makmg such payment he did not become equitable assignee of the mortgage.^ § 1064, Effect of Mortgagee's Purchase of Equity of Redemp- tion. — Whatever view be taken of the respective interests of mortgagor and mortgagee, the two together comprise one estate. By the doctrine of merger, if a mortgagee purchase the equity of redemption his estate as mortgagee merges in 1 Hinds V. Ballou, 44 N. H. 619 : Hubbell v. Blakeslee, 71 N. Y. 68 ; Champ- ney v. Coope, 32 N. Y. 543 ; Hutchins v. Hibbard, 34 N. Y. 24 ; Kellogg v. Ames, 41 N. Y. 259 ; Brown v. Lapham, 3 Cush. 551 ; Eaton v. Simonds, 14 Pick. 98 ; Robinson v. Urquhart, 12 N. J. Eq. 515 ; Swift v. Kraemer, 13 Cal. 526 ; Wedge V. Moore, 6 Cush. 8 ; Bolton v. Ballard, 13 Mass. 227 ; Kilborn v. Robbins, 8 Allen, 471 ; Ingham r. Weed (Cal.), 48 Pac. Rep. 318 ; Mansfield v. Dyer, 133 Mass. 374. But semhle aliter if he is the one originally bound for the payment ; and it will be a discharge, at least if any rights of any other party in interest are prejudiced. Wadsworth v. Williams, 100 Mass. 126. 2 See/josi-, §§ 1140, 1141. 8 Downei- v. Wilson, 33 Vt. 1. OF THE mortgagee's INTEREST. 115 that of the mortgagor.^ But merger does not take place, and the mortgagee acquiring the equity of redemption will be allowed to keep his mortgage alive as a separate and distinct interest or estate, whenever it is to his interest tliat this should be done in order to protect himself to the extent of his mort- gage against subsequent incumbrancers, or other persons who stand to him, as mortgagee, in the light of redemptioncrs. This principle is analogous to that of equitable assignment, worked by payment of the debt, and is also discussed at length in treating of the interest of the mortgagor.^ § 1065. Of Mortgagee's Remedy for Waste. — As " between the mortgagor and mortgagee, the mortgage is to be regarded as a conveyance in fee, because that construction best secures him [the mortgagee] in his remedy, and his ultimate right to the estate and to its incidents, the rents and profits. But in all other respects, until foreclosure, when the mortgagee be- comes the absolute owner, the mortgage is deemed to be a lien or charge, subject to which the estate may be conveyed, attached, and in other respects dealt with as the estate of the mortgagor." ^ It has accordingly been held, that a mortgagee of a reversion, subject to a widow's right of dower, upon entering for condi- tion broken may have waste against the tenant for life for acts of waste done before the breach of the condition of the mortgage, even if done by a mere trespasser, * while a mort- gagee in possession can only be reached in equity for acts of waste or trespass done by him upon the premises, unless he has restricted his power by some covenant.^ But equity in such cases holds the mortgagee to a strict account for using the premises in a way inconsistent with the legitimate purposes of security.^ And if after a judgment for redemption, and 1 See post, § 1122. 2 gee pod, § 1113. 3 Ewer V. Hobbs, 5 Jlet. 3 ; Porter i;. Green, 4 Iowa, 576 ; Kennett v. Pluin- mer, 28 Mo. 142; Savage v. Dooley, 2S Conn. 411 ; Mills v. Shepard, 30 Conn. 98 ; Munson v. Munson, id. 425, 437 ; Wilkinson v. Flowers, 37 Miss. 579, 585 ; Tripe v. Marc3', 39 N. H. 439 ; Den v. Dimon, 10 N. J. 157 ; Adams v. Corriston, 7 Minn. 456 ; Brown v. Snell, 6 Fla. 744. * Fay V. Brewer, 3 Pick. 203. 6 Furbusli V. Goodwin, 29 N. H. 321 ; Chellis v. Stearns, 22 N. H. 312 ; Smith V. Johns, 3 Gray, 517; Taylor v. Townsend, 8 Mass. 411; Irwin v. David.son, 3 Ired. Eq. 311 ; Evans v. Thomas, Cro. Jac. 172. 6 Shaeffer v. Chambers, 6 N. J. Eq. 548 ; Givens v. McCalmont, 4 Watts, 460. 116 MORTGAGES. before possession under it has actually been delivered to the mortgagor, the mortgagee does acts injurious to the inherit- ance, the mortgagor, when he shall have regained possession, may have an action in the nature of waste for such injury.^ § 1066. Of Moitgagee's Remedy for Waste, continued. — And although a mortgagee may not have a technical action of waste against the mortgagor in any case, he may have trespass quare clausum for any act done by him or by his authority, essentially impairing the inheritance, such as cutting timber, tearing down houses, fixtures, and the like,^ although such fixtures may have been placed upon the premises by the mort- gagor after the making of the mortgage.^ So the mortgagee may have trespass against one who, by consent of the mort- gagor, removes a house standing upon the mortgaged prem- ises,* though trespass will not lie against a mortgagor or his tenant for any acts of occupation done by either before entry made by the mortgagee, though after condition broken.^ A mortgagee not in possession, or having a right to possession, cannot have trespass against a third party for entering upon the premises and cutting and removing the crops growing thereon.^ But if he be in possession he may have trespass against a stranger for entering upon the premises." A third mortgagee not in possession, though he may not have trespass qu. cL against a stranger for entering upon the premises, may have an action of tort against one for entering and tearing 1 Taylor v. Townsend, 8 Mass. 411. 2 Stowell V. Pike, 2 Me. 387 ; Smith v. Moore, 11 N. H. 55; Bussey v. Paige, 14 Me. 132; Sanders v. Reed, 12 N. H. 558; Smith v. Goodwin, 2 Me. 173; Frothingham v. McKusick, 24 Me. 403 ; Pettingill v. Evaus, 5 N. H. 54 ; Page V. Robinson, 10 Cush. 99 ; Hagar v. Brainerd, 44 Vt. 294. 3 Burnside v. Twitchell, 43 N. H. 390. * Cole V. Stewart, 11 Cush. 181 ; Wilmarth v. Bancroft, 10 Allen, 348. 6 Maj'o V. Fletcher, 14 Pick. 525. For what a mortgagor may do on the premises, see Hoskin v. Woodward, 45 Penn. St. 42. 6 Gooding v. Shea, 103 Mass. 360 ; Woodward v. Pickett, 8 Gray, 617; W^ood- man v. Francis, 14 Allen, 198. And entry and record thereof, though without continued possession, suffice for trespass as for foreclosure. Thompson v. Vinton, 121 Mass. 139. " Sparhawk v. Bagg, 16 Gray, 583. And in New Hampshire such an action lies by relation, after entry by the mortgagee, for injuries to the freehold by the mortgagor or a stranger before such entry. Pettingill v. Evans, 5 N. H. 54 ; Bellows V. B., C. & M. R. R., 59 N. H. 491. OF THE mortgagee's INTEREST. 117 down buildings or fixtures upon the premises ; nor could it be set up in defence that the mortgagor may sue for the same. His right would be subordinate to that of the mortgagee. Nor could it be set up that the prior mortgagees have a right to claim damages for the same, if they have done nothing to assert such a claim.^ Nor will assumpsit lie for rent in such a case.2 In Pennsylvania, a writ of estrepement to stay waste by a mortgagor is provided by statute.^ In Vermont, a mort- gagee, after condition broken, may have an action on the case, in the nature of waste against the mortgagor in possession, for cutting timber and selling it ; or he may have trover for the timber.* So in Maine, Massachusetts, and New Hampshire, the property in such timber is in the mortgagee, who may have trover for the same,^ even against an innocent purchaser from the mortgagor.^ And in Rhode Island the mortgagee may have replevin against mortgagor in possession for wood or timber so cut upon the premises as to waste the same.'^ In New York, a mortgagee may have an action on the case against the mortgagor for an injury to the mortgage security.^ § 1067. Injunction to stay Waste. — The most general and effectual remedy for a mortgagee against a mortgagor to pro- tect the premises is by bringing in equity a bill for an injunc- tion to stay waste ; or, according to the rule in Arkansas, to have the property placed in the hands of a receiver,^ and this remedy may be obtained by any one who is collaterally liable 1 Gooding v. Shea, supra ; Cole v. Stewart, 11 Cush. 181. 2 Mayo V. Fletcher. 14 Pick. 525. 8 Purdon, Dig. (8th ed.) 336, §§ 3, 6. * Langdon v. Paul, 22 Vt. 205. 6 Gore V. Jenness, 19 Me. 53; Biissey v. Page, 14 Me. 132; Searle v. Sawyer, 127 Mass. 491. But no action lies against a mortgagor for such appropriation of crops, firewood, etc., as is suitable to his possessiou. Ibid. ; Porter v. Hubbard, 134 Mass. 233, 237. That trover will not lie in Connecticut and New York, see Cooper V. Davis, 15 Conn. 556 ; Peterson v. Clark, 15 Johns. 205 ; but will in England, Hitchman i;. Walton, 4 M. & W. 409 ; Holland v. Hodgson, L. R. 7 C. P. 328. 6 Howe V. Wadsworth, 59 N. H. 397. ' Waterman v. Matteson, 4 R. I. 539. But not trespass. Ibid. 8 Van Pelt v. McGraw, 4 N. Y. 110 ; Lane v. Hitchcock, 14 Johns. 213 ; Card- ner v. Heartt, 3 Denio, 232. So New Jersey. Jackson v. Turrell, 39 N. J. 329. 9 Mooney v, Briukley, 19 Ark. 340 ; Morrison v. Buckner, 1 Ilenipst. 442. 118 MORTGAGES. for the mortgage debt.^ But in those jurisdictions which have adopted the Hen theory, the right to stay waste by removing a building, for instance, depends upon whether the threatened act will render the premises inadequate security for the debt.^ The mortgagee's right is a lien and not an estate ; and where the mortgagor, after making his mortgage, erected a house upon the premises, and then sold it to a third party, who removed it, tbe mortgagee was held to be without remedy.^ § 1068. Of Leases and Emblements. — If the mortgagor lease the premises subject to the mortgage, and the mortgagee recognize the tenant as such, he makes him his own tenant so far that he cannot treat him as a trespasser.* But the mortgagee may disavow the mortgagor's lease and take pos- session and evict the tenant, who will not be entitled to emblements, inasmuch as the mortgagee is considered as entering under a paramount title.^ So if the mortgagor himself be expelled by the mortgagee, he cannot claim em- blements, though it was done without notice.^ Where a mortgagee entered, after condition broken, upon premises which had been let by the mortgagor before making the mort- 1 Cooper V. Davis, 15 Conn. 556 ; Brady v. Waldron, 2 Johns. Ch. 148 ; Cap- ner v. Flemiiigton Mg. Co., 3 N. J. Eq. 467 ; Salmon v. Clagett, 3 Bland, 125 ; Murdock's Case, 2 Bland, 461 ; Scott v. Wharton, 2 Hen. & M. 25; Brick v. Getsiuger, 5 N. J. Eq. 391; Gray v. Baldwin, 8 Blackf. 164 ; Eden on Injunctions, 205 ; Hampton v. Hodges, 8 Ves. 105 ; Usborne v. Usborne, 1 Dick. 75 ; Robinson V. Litton, 3 Atk. 209 ; Farrant v. Lovel, id. 723; Parsons v. Hughes, 12 Md. 1; Bunker v. Locke, 15 Wis. 635; Ensign v. Colburn, 11 Paige, 503; Johnson v. White, 11 Barb. 194 ; Guernsey v. Wilson, 134 Mass. 482. See Cortelyeu v. Hatha- way, 11 N. J. Eq. 39, 40, as to when a receiver will be appointed, and what will be his power. 2 Robinson v. Russell, 24 Cal. 467; Buckout v. Swift, 27 Cal. 433; Brady r. Waldron, 2 Johns. Ch. 148 ; Story, Eq. Jur. § 915. 3 Chick V. Willetts, 2 Kan. 384 ; Clark v. Reyburn, 1 Kan. 281 ; Burhans v. Hutcheson, 25 Kan. 625. * Tud. Cas. 11 ; Doe w. Hales, 7 Bing. 322. And the tenant can thereafter resist paying rent to the mortgagor. Pope v. Biggs, 9 B. & C. 245 ; Smith v. Shepherd, 15 Pick. 147 ; Stone v. Patterson, 19 Pick. 476; Welch v. Adams, 1 Met. 494; Cook V. Johnson, 121 Mass. 326; Lucier v. Marsales, 133 Mass. 454. 5 Coote, Mortg. 332, 333 ; Mayo v. Fletcher, 14 Pick. 525 ; Lynde v. Rowe, 12 Allen, 101, citing the text. Contra, Lane v. King, 8 Wend. 584. 6 Jones V. Thomas, 8 Blackf. 428 ; M'Call v. Lenox, 9 S. & R. 302 ; Doe v. Mace, 7 Blackf. 2. In Connecticut, whatever is severed from the freehold by the mortgagor, including emblements, becomes his own. Toby v. Reed, 9 Conn. 216 ; Cooper I'. Davis, 15 Conn. 556. OP THE mortgagee's INTEREST. 119 guge, it was held that he might compel the lessee to pay him all subsequently accruing rent, as well as rent then due which had accrued subsequent to the making of the mortgage, al- though his entry might not be sufficiently formal to work a foreclosure.^ So if a termor underlet and then mortgage his term, it operates as an assignment to the mortgagee of the rent accruing due from such sublessee, after the making of the mortgage.'-^ But this does not extend to rent due when the mortgage was made.^ The mortgagee, in such cases, is regarded as assignee of the reversion.^ It is not competent, however, for a mortgagee, who takes his mortgage subsequent to a lease by the mortgagor, to disturb the lessee's possession any more than the mortgagor himself could have done. And though he may compel the tenant to pay him rent, it is only such as falls due after his mortgage is made, and has not been paid to the mortgagor before notice of the mortgage, and the mortgagee's claim to have it paid to him.^ And this extends to rents paid in advance, if the payment is made in good faith. ^ § 1069. Of Recovery of Rent by Mortgagee. — At common law the mortgagee cannot recover rent of the mortgagor for the time he suffers him to retain possession of the premises, ^ unless the mortgagor take a lease, which he may do, from the mortgagee, under which he can hold possession against the mortgagee.^ Nor can a mortgagee, in Massachusetts, recover mesne profits of a mortgagor, after a judgment for possession, 1 Kimball v. Lockwood, 6 R. I. 139. 2 Russell V. Allen, 2 Allen, 42 ; Mirick v. Hoppin, 118 Mass. 582. 8 Burden v. Thayer, 3 Met. 76. * Moss V. Gallimore, Doug. 279 ; Mass. Hosp. L. I. Co. i;. Wilson, 10 Met. 126 ; Baldwin v. Walker, 21 Conn. 168 ; Babcock v. Kenned}', 1 Vt. 457 ; Cokeru. Pear- sail, 6 Ala. 542 ; Smith v. Taylor, 9 Ala. 633 ; 1 Smith, Lead. Cas. {2d Am. ed.) 310; McKircher v. Hawley, 16 Johns. 289; Demarest v. Willard, 8 Cow. 206; Fitchburg Co. v. Melvin, 15 Mass. 268; Castleman v. Belt, 2 B. Mon. 157; Mirick I'. Hoppin, 118 Mass. 582. 6 See cases above ; Myers v. White, 1 Ravvle, 353 ; Weidner v. Foster, 2 Penn. 23. 6 Henshaw v. Wells, 9 Humph. 568. But a note is not such payment. Aldridge V. Ribyre, 54 Ind. 182. T Teal V. Walker, 111 U. S. 242 ; Walker v. King, 44 Vt. 601 ; ante, § 1044. 8 Morton v. Woods, 9 B. & S. 632 ; Jolly v. Arbuthnot, 4 De G. & J. 224 ; Kunkle v. Wolfersberger, 6 Watts, 126. 120 MORTGAGES. for the time anterior to the recovery of his judgment.^ But if, having a judgment for possession upon his mortgage, the mortgagee sue a writ of entry at common law, he may recover judgment for mesne profits from the time of rendition of the prior judgment.^ But where the mortgage is prior to the lease, and the mortgagee gives the lessee notice to pay him the rent, and then recovers judgment for possession in eject- ment, he may recover the mesne profits accruing after such notice.^ So, if land is leased while under a mortgage, the lessee may become liable to the mortgagee for rent accruing due after entry made, or some equivalent act done by the mortgagee; but he is not liable before such entry, nor for rent due before it was made. The lessee, as to such rents, stands in the place of the mortgagor, and is liable to him.^ And the law on the subject may be stated thus : If the mort- gage is prior to the lease, there is no privity between the mortgagee and lessee; the lessee stands in the place of the mortgagor, and he would not be liable for rent until the mort- gagee shall have taken possession of the premises.^ Whether a demand and notice to pay rent shall be equivalent to mak- ing an entry is treated by the Massachusetts court as ques- tionable,*' though in the above case from Virginia it seems to have been held sufficient. But if the mortgagor or his ten- ant, under a lease made subsequent to the mortgage, refuse to yield possession, or pay rent if demanded, after the mort- 1 Coote, Mortg. 332 ; Wilder v. Houghton, 1 Pick. 87 ; Mayo v. Fletcher, 14 Pick. 525. 2 Haven v. Adams, 8 Allen, 363. 8 Bk. of Washington v. Hupp, 10 Gratt. 23. * Morse v. Goddard, 13 Met. 177 ; Mass. Hosp. L. I. Co. v. Wilson, 10 Met. 126 ; Mayo v. Fletcher, 14 Pick. 525 ; Watts v. Coffin, 11 Johns. 495 ; McKircher V. Hawley, 16 Johns. 289; Peters v. Elkins, 14 Ohio, 344 ; Pope v. Biggs, 9 B. & C. 245 ; Kimball v. Lockwood, 6 R. I. 138 ; Syracuse Bk. v. Tallman, 31 Barb. 201. s Russell V. Allen, 2 Allen, 44, citing the text ; Morse v. Goddard, 13 Met. 177, 180 ; Smith v. Shepard, 15 Pick. 147 ; Kimball v. Lockwood, 6 R. I. 138 ; Syracuse Bk. V. Tallman, 31 Barb. 207; Adams v. Bigelow, 128 Mass. 365 ; Mass. Hosp. L. I. Co. V. Wilson, 10 Met. 126. See note to Trent v. Hunt, 9 Exch. 14, 24, Am. ed., for cases collected. 6 Field V. Swan, 10 Met. 112. In Evans v. Elliot, 9 Ad. & E. 342, it is held that mere notice and demand of rent is not sufficient to entitle the mortgagee to hold the mortgagor's lessee as his tenant. OP THE mortgagee's INTEREST. 121 gagee's entry for condition broken, he may recover the mesne prolits in a proper form of action for that purpose.^ § 1070. Recovery of Rent by Mortgagee, continued. — In the case above supposed of a lease made after the making of a mortgage, if the lessee upon the mortgagee's making an entry for condition broken, or some act equivalent thereto, pay rent to the mortgagee, it creates the relation of landlord and ten- ant between them.^ But if the lessee refuse to recognize that relation, and will not pay rent to the mortgagee, the only remedy of the latter is by an action of ejectment.^ From what has been said, it must be obvious that no lease that will be indefeasible can be made of an estate which has been pre- viously mortgaged, unless the mortgagor and mortgagee both join, or at least concur, in its execution. If made by the mortgagor alone, the mortgagee may enter and defeat it. If made by the mortgagee alone, a redemption of the estate by the mortgagor will defeat the mortgagee's lease. And in such a case, if the mortgagee intend to avail himself of the rent, he must have the covenant for its payment made to him. If it is made to the mortgagor, the mortgagee cannot sue upon it.* A mortgagee may take a lease from the mortgagor, and covenant to pay him rent until condition broken ; and if he do, he will be bound by his covenant, and not be admitted to set up his mortgage against the lease. But if, being in pos- session as lessee, he take a mortgage of the premises, he may elect whether to hold under his lease or his mortgage.^ But under the system of New York, where a lessor mortgaged his estate to a third person, and then, before the mortgage-debt fell due, assigned the rent for a series of years, of which the mortgagee had notice, it was held, in an action to foreclose the mortgage, that the assignee of the rent might claim it 1 Northampton Mills v. Ames, 8 Met. 1 ; Hill v. Jordan, 30 Me. 367 ; Turner V. Cameron, 5 Exch. 932 ; Litchfield v. Ready, id. 939. 2 Doe V. Barton, 11 Ad. & E. 307, 31.5 ; Coote, Mortg. 317. 8 Partington v. Woodcock, 6 Ad. & E. 690. 4 Hungerford v. Clay, 9 Mod. 1 ; Willard v. Harvey, 5 N. H. 252 ; 1 Smith's Lead. Cas. (5th Am. ed.) 697. Mr. Coventry, in a note to Powell, Mortg. 177, points out the form which parties should adopt in such cases to secure the rights of mortgagor and mortgagee. 6 Newall V. Wright, 3 Mass. 138 ; Wood v. Felton, 9 Pick. 171 ; Johnson i;. Muzzy, 42 Vt. 708 ; Shields v. Lozear, 34 N. J. 496. 122 MORTGAGES. between the time when the mortgage-debt fell due and the appointment of a receiver in the suit for foreclosure, although the mortgagor was insolvent, and the mortgaged premises were an inadequate security for the mortgage-debt.^ § 1071. Mortgagee's Interest not subject to Dower or Debts. — • Before foreclosure, the wife of a mortgagee cannot claim dower in the mortgaged premises,^ nor is his estate liable to be levied upon for his debts, even though the condition may have been broken. ^ § 1072. Of Devises affecting Mortgages. — How far a devise of lands, tenements, and hereditaments will pass mortgages, has been differently held by different courts. The following authorities sustain what seems to be the better doctrine, that it will pass mortgages held by the devisor, unless a contrary intention can be collected from the language of the will.* So it has been held that a devise of one's mortgages will pass the lands mortgaged, though a devise of securities for money will or will not pass mortgaged estates according to the language and intent of the testator.^ And it seems to be well settled, that if a testator, after making his will devising his lands, etc., forecloses a mortgage which he held at the making of his will, it will so far change the nature of his interest in the 1 Syracuse Bk. v. Tallman, 31 Barb. 201 ; Zeiter v. Bowman, 6 Barb. 133. 2 Powell, Mortg. 7, n. D. 8 Blanchard v. Colburn, 16 Mass. 345 ; Eaton v. Whiting, 3 Pick. 484 ; Hunter V. Hunter, Walk. (Miss.) 194; Huntington v. Smith, 4 Conn. 235; Smith v. People's Bk., 24 Me. 185 ; Rickert v. Madeira, 1 Rawle, 325 ; Jackson v. Willard, 4 Johns. 41 ; Trapnall v. State Bk., 18 Ark. 53 ; Runyan v. Mersereau, 11 Johns. 534 ; Glass v. Ellison, 9 N. H. 69; Buck v. Sanders, 1 Dana, 187 ; Whiting y. Beebe, 7 Eng. (Ark.) 421, 581 ; Pettit v. Johnson, 15 Ark. 55 ; Hill v. West, 8 Ohio, 222 ; McGan v. Marshall, 7 Humph. 121 ; Thornton v. Wood, 42 Me. 282 ; Marsh v. Austin, 1 Allen, 235 ; Symes v. Hill, Quincy, 318 ; Brown v. Bates, 55 Me. 520. But formerly held othervs'ise in Massachusetts. Hooton v. Grout, Quincy, 343. * Byth. Jarm. Conv. 634, n. ; Jackson v. De Lancey, 13 Johns. 537, 553-559 ; Galliers v. Moss, 9 B. & C. 267 ; Co. Lit. 205 a, note 96 ; Braybroke v. Inskip, 8 Ves. 417, n. But in the following cases the courts held, that a general devise of lands would not pass the devisor's mortgages. Atty.-Gen. v. Vigor, 8 Ves. 256, 276 ; Casborne v. Scarfe, 1 Atk. 605 ; Winn v. Littleton, 1 Vern. 3 ; Strode v. Russell, 2 Vern. 625. Wilkins v. French, 20 Me. Ill, favors the same idea. 6 Winn V. Littleton, 1 Vern. 4, Raithby ed. n. ; Crips v. Grysil, Cro. Car. 37 ; 2 Crabb, Real Prop. 882 ; Galliers v. Moss, 9 B. & C. 267 ; Powell, Mortg. 267, note, that such a devise does in equity pass the mortgage. OF THE mortgagee's INTEREST. 123 premises, as to place them in the category of after-acquired real estate, which, at common law indeed, would not pass by such a will. To work this change there must be an actual foreclosure; merely entering and taking possession will not have that effect. The foreclosure becomes, in a measure, a new purchase.^ § 1073. Mortgages go to Personal Representatives. — At com- mon law, if the mortgagee dies, his legal estate in the mort- gaged premises descends to his heirs. But they will in equity be held as trustees for the executor or administrator of the mortgagee, since the debt thereby secured goes into the executor's hands as personal assets. Equity, however, gives the same direction to the mortgage as to the debt, and both go to the executor, 2 and an heir cannot release a mortgage. ^ So where the heirs of a mortgagee conveyed the premises before the mortgage was foreclosed, it was held not to oper- ate as an assignment of the mortgage, whereas a quitclaim by the administrator of the mortgagee would be an assignment of the mortgage. And an executor or administrator may assign a mortgage.* And this is adopted as the statute rule in many of the States," where, accordingly, the executor or administrator of the mortgagee may recover possession of the land, and hold it to be administered and accounted for as per- 1 Casborne v. Scarfe, 1 Atk. 606 ; Brigham v. Winchester, 1 Met. 390 ; Strode V. Russell, 2 Vern. 625; Ballard v. Carter, 5 Pick. 112; Fay v. Cheney, 14 Pick. 399. By statute now, a devise will pass after-acquired real estate. Mass. Pub. Stat. 1881, c. 127, § 25. But if devisor sell lands which he has devised in his will, and take back a mortgage for the purchase- money, he thereby revokes his devise ; the mortgage does not pass by the will. Beck v. McGillis, 9 Barb. 35. 2 Demarest v. Wj-nkoop, 3 Johns. Ch. 129, 145 ; Jackson v. De Lancey, 11 Johns. 365 ; s. c. 13 Johns. 537 ; Kinna v. Smith, 3 N. J. Eq. 14 ; Barnes v. Lee, 1 Bibb, 526 ; 1 Smith, Lead. Cas. (5th Am. ed.) 669 ; Co. Lit. 205 a, n. 96; Smith V. Dyer, 16 Mass. 18, 23 ; Dewey v. Van Deusen, 4 Pick. 19 ; Wms. Real Prop. 331 ; Grace v. Hunt, Cooke (Tenn.), 341 ; Winn v. Littleton, 1 "Vern. 4, n. ; Wilkins v. French, 20 Me. Ill ; Chase v. Lockerman, 11 Gill & J. 185 ; Dexter v. Arnold, 1 Sumn. 109, where it is held that it is ordinarily necessary to make the heir of a mortgagee party to a bill to redeem the mortgage, though held otherwise in Kinna v. Smith, supra ; White v, Rittenmyer, 30 Iowa, 268. 3 Taft V. Stevens, 3 Gray, 504. 4 Douglass V. Durin, 51 Me. 121 ; Burt v. Kicker, 6 Allen, 77. s Rhode Island, Gen. Laws, 1896, c. 214; Maine, Rev. Stat. 1883, c. 90, § 11 ; Mich. Howell's Annot. Stat. 188i2, § 5880 ; Vt. Stat. 1894, § 2464 ; Ohio, Rev. Stat. 1896, § 6070 ; Burton v. Hintrager, 18 Iowa, 348. 124 MORTGAGES. sonal assets. And tins is the law in Massachusetts also.^ It was accordingly held that an entry and possession taken for purposes of foreclosure by the heirs of the mortgagee had no effect to bar the redemption of the estate by the mortgagor, though held for eight years. It was held, moreover, that by such possession the heirs were disseisors of the personal rep- resentatives of the mortgagee, and accountable to them for the mesne rents and profits. And an administrator having been appointed on the estate of the mortgagee, the heirs were held accountable to him for the rents as executors in their own wrong, and he would be obliged to allow these to the mort- gagor as having been received towards the mortgage-debt, ^ And so far has this doctrine been established, that where the mortgagee obtained conditional judgment for possession in order to foreclose the mortgage, and a stranger entered after his death, his administrator, it was held, might maintain a writ of entry against the stranger as a disseisor. ^ So an ad- ministrator of a mortgagee, after he had obtained judgment for foreclosure and possession upon a mortgage held by his intestate, was held entitled to maintain trespass against an heir of the mortgagee for entering upon the premises.^ In order to administer lands held by executors and administra- tors in mortgage at common law, under the Revised Statutes of Massachusetts, a license for their sale had to be first ob- tained. But now, by statute, they may be sold and adminis- tered before foreclosure, like personal estate.^ And one of two executors may effectually assign a mortgage.^ If, there- fore, the mortgagor would redeem the estate after the death of the mortgagee, the money is to be paid to the executor or administrator, and not to the heir."* * Note. — This doctrine, that a mortgage is personal assets, and, as such, goes to the executor, has been sustained since the time of Lord Keeper Finch, 28 Charles II., in Thornbrough v. Baker, 1 Ch. Cas. 283 ; Fisk v. Fisk, Free. Chan. 11 ; Tabor v. Grover, 2 Vern. 367 ; Casborne v. Scarfe, 1 Atk. 605. 1 Smith V. Dyer, 16 Mass. 18 ; Hathaway v. Valentine, 14 Mass. 501 ; Pub. Stat. 1881, c. 133, §§ 6-10 ; Marsh v. Austin, 1 Allen, 235 ; Steel v. Steel, 4 Allen, 417. 2 Haskins v. Havvkes, 103 Mass. 379, 381. 8 Richardson v. Hildreth, 8 Cush. 225. * Palmer r. Stevens, 1] Cush. 147. 6 Blair, Appellant, 13 Met. 126; Pub. Stat. c. 133, § 9. 6 George i'. Baker, 3 Allen, 326, u. ^ 2 Crabb, Real Prop, 830. OF THE mortgagee's INTEREST. 125 § 1074. Of Mortgages for Separate Debts. — A mortgage is often made to several persons, sometimes to secure two sepa- rate debts, and sometimes to secure one or more joint debts due to the mortgagees. If made to secure separate debts, the interests of the mortgagees are several, and not joint, and the remedy for each is several. But the amount of the respective interests in the mortgaged property is, pro rata, according to the respective amounts of their debts. ^ If the debt be a joint one, the mortgagees are joint-tenants of the mortgage estate, with the right of survivorship, even in States where, by statute, a joint ownership of lands creates a ten- ancy in common. And a release by one of the mortgagees, in such a case, of the debt, is a discharge of the mortgage upon the land.'^ But as soon as the mortgage has been fore- closed, and the legal estate made absolute, it is converted into a tenancy in common between the owners thereof.^ As a consequence of the above propositions, if one of two joint- mortgagees die before foreclosure of the mortgage, the sur- vivor may bring an action to foreclose the same.^ But if the debts are distinct, the survivor of the mortgagees cannot sus- tain an action in his own name to foreclose the mortgage for the debt due the deceased.^ But if there be a joint-mortgage made to two to secure a debt due to one of them, the legal estate vests in them as tenants in common, the one having no interest in the mortgage-debt being a trustee of the estate for the benefit of him who owns the debt.^ § 1075. Of Separate Mortgages for one Debt. — If two sev- eral owners of distinct parcels mortgage them to secure a joint-debt, it prima facie charges these lands, so far as re- 1 Burnett v. Pratt, 22 Pick. 556 ; Donnels v. Edwards, 2 Pick. 617 ; Gilson v, Gilson, 2 Allen, 117, citing the text ; Brown v. Bates, 55 Me. 520 ; Adams v. Robertson, 37 111. 45. 2 Appleton V. Boyd, 7 Mass. 131 ; "Webster v. Vandeventcr, 6 Gray, 428 ; Wright V. Ware, 58 Ga. 150. 3 Goodwin V. Richardson, 11 Mass. 469; Johnson v. Brown, 31 N. H. 405; Deloney v. Hiitcheson, 2 Ptand. 183 ; Randall v. Phillips, 3 Mason, 378; Tyler v. Taylor, 8 Barb. 585 ; Rigden v. Vallier, 2 Ves. Sen. 252, 258. 4 Williams r. Hilton, 35 Me. 547 ; Appleton v. Boyd, 7 Mass. 131. 5 Burnett v. Pratt, 22 Pick. 556. See Cochran v. Goodell, 131 Mass. 464, 466. 6 Root V. Bancroft, 10 Met. 44. 126 MORTGAGES. spects the mortgagors, equally each for a moiety of the debt, and no agreement otherwise between the mortgagors will affect a subsequent purchaser without notice.^ § 1076, Order of Priority. — Successive mortgages, duly registered, take effect and avail as security in favor of the successive holders, according to their priority of registration. This is but carrying out the doctrine of the effect of notice in equity, the registration being constructive notice to all per- sons affected by it.^ And consistently with this doctrine, such registration is only notice of the amount of an existing mortgage, so far as the record itself shows it. Thus, where the mortgage was to secure the sum of $3,000, and the record was $300, it was held to be notice, or to give precedence, only for $300.^ But where, as in Alabama and other States, the record takes effect from filing, the subsequent omission of the register to record one of two sums covered by the mort- gage was held not to impair the mortgagee's security for both sums.^ Where, as in Minnesota, the law requires two wit- nesses to a mortgage-deed to give it validity, and the recorder omitted the name of one of them in recording a mortgage- deed, it was held to be no notice to others of such a mort- gage, because, as appeared by the record, the deed was of no validity, and a subsequent deed duly recorded, taken by one not having actual notice of the prior deed, took precedence of such prior deed, though in fact it had been properly exe- cuted.^ But where two mortgages are made in pursuance of the same contract or transaction to two parties, neither will gain any precedence of the other by any priority of record of his deed. Their equities would still be equal. ^ A purchase- money mortgage, given at the time of purchase, has priority 1 Hoyt V. Dought)', 4 Sandf. 462. 2 Coote, Mortg. 384, note, Am. cases; Grant v. Bissett, 1 Caines, Cas. 112; Doe V. Cleveland Bk., 3 McLean, 140. Cf. Hodge v. Amerman, 40 N. J. Eq. 99. 8 Frost I). Beekrnan, 1 Johns. Ch. 288 ; s. c. 18 Johns. 544. But where the mortgage was for $15,000, but the recital in the conveyance of the equity said, " if there is anything due and unpaid thereon," the purchaser might show the mortgage fraudulently altered, Bennett v. Bates, 26 Hun, 364. 4 Mims V. Mims, 35 Ala. 23 ; Merrick v. Wallace, 19 111. 486, 497 ; Tousley v. Tousley, 5 Ohio St. 78 ; and see Wood's App., 82 Penn. St. 116. 6 Parrett v. Sliaubhut, 5 Minn. 323. 6 Daggett V. Kankin, 31 Cal, 321. OP THE mortgagee's INTEREST. 127 over other liens simultaneously attaching.^ The statutory provisions of the several States in respect to recording mort- gages are generally the same as relate to absolute deeds, though there are special provisions as to mortgages in some of the States. In some they become liens from the time of filing, in others from the time of registration. In Michigan, a second mortgage, in order to take priority of a former one by being first recorded, must have been made for value actu- ally paid. A mere promise to pay a third person would not be sufficient. 2 The same rule prevails in Ohio, so far as others than the parties to the mortgage are concerned, al- though the second, mortgagee knew of the prior one when he received it.^ So, in that State, a mortgage requires two witnesses to give it validity ; and if executed with a less number, a subsequent deed, properly executed, will take pre- cedence of it, though taken with the knowledge of such prior incomplete deed.* In Pennsylvania, a judgment takes pre- cedence of an unrecorded mortgage.^ But it is competent for two mortgagees, by agreement, to give a second mortgage the precedence of a prior one, so as to bind their assignees, if it be done by a proper instrument put upon record.^ As be- tween the parties themselves, a mortgage is good without registration.''' So it is against subsequent purchasers with notice, if clearly proved.^ An unrecorded mortgage is good against the mortgagor, his heirs and grantees, or against 1 United States v. New Orleans R. R. Co., 12 Wall. 362 ; Daly v. N, Y. & G. L. Ry. Co., 55 N. J. Eq. 595 ; s. c. .38 Atl. Rep. 202. 2 Stone V. Welling, 14 Mich. 514; Thomas v. Stone, Walker, Oh. 117; Gary V. White, 52 N. Y. 138. 3 Bloom V. Noggle, 4 Ohio St. 45, 55 ; Stansell v. Roberts, 13 Ohio, 148 ; Hol- liday v. Franklin Bk., 16 Ohio, 533 ; Spader v. Lawler, 17 Ohio, 371, 379. * Whiter. Denman, 16 Ohio, 59. 6 Semple v. Burd, 7 S. & R. 286. 6 Clason V. Shepherd, 6 Wis. 369, 374 ; Mut. Loan Ass. v. Elwell, 38 N. J. Eq. 18. ■^ Andrews v. Burns, 11 Ala. 691 ; Salmon v. Ciagett, 3 Bland, 125 ; Fosdick V. Barr, 3 Ohio St. 471 ; Leggett v. Bullock, Busliee (N. C), 283 ; Howard Mut. Assoc. V. Mclntyre, 3 Allen, 571. 8 Copeland v. Copeland, 28 Me. 525 ; Solms v. McCullock, 5 Penn. St. 473 ; Bearing v. Watkins, 16 Ala. 20 ; Sparks v. State Bk., 7 Blackf. 469 ; Woodworth V. Guzman, 1 Gal. 203 ; Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 617 ; Harris v. Norton, 16 Barb. 264. 128 MORTGAGES. mortgagees with notice, and generally also against voluntary assignees in favor of creditors. But it would not avail against the purchasers at a sale made by order of the Orphans' Court to satisfy the debtors of the mortgagor. ^ And a priority of registration gives no precedence of right against a prior mort- gage, of which the junior mortgagee who obtains the registra- tion had notice when he took his mortgage. ^ An unrecorded mortgage is a lien as against an assignee of the mortgagor in trust for the benefit o£ creditors, such assignee being regarded neither as creditor nor purchaser for value.^ Where a mort- gage, and a subsequent deed, by the same grantor, of the same estate, were made to different persons in Pennsylvania, who failed to have them recorded within six months, and then the mortgage was first recorded, it was held to take pre- cedence of the deed, though the grantee in the latter was actually in possession under it.* Subsequent to the execu- tion of a mortgage, the premises covered by it were sold by the mortgagor in separate parcels to different purchasers, who had no notice of the mortgage, and one of those deeds was prior in date to another which was first recorded. It was held, that, in a proceeding under the mortgage, the one hold- ing under the first deed took precedence of the second, though the latter was first recorded.^ In establishing the fact of notice of a prior incumbrance, the mortgagor is himself a competent witness.^ § 1077. Effect of Defective Registration on Notice. — It is 1 Nice's Appeal, 54 Penn. St. 200, 202. 2 Gen. Ins. Co. v. U. S. Ins. Co., 10 Md. 517 ; 1 Story, Eq. Jur. § 421 ; Dor- row V. Kelly, 1 Dall. 142 ; Wyatt v. Stewart, 34 Ala. 716 ; Bell v. Thomas, 2 Iowa, 384. But see Hendrickson v. Woolley, 39 N. J. Eq. 307. 3 Mellon's App., 32 Penn. St. 121. Contra, Swift v. Thompson, 9 Conn. 63. And in a few States a statutory assignee is given the standing of a creditor and purchaser for value. See Pillsbury v. Kingon, 33 N. J. Eq. 287 ; Freeland v. Freeland, 102 Mass. 475; Wis., Laws of 1882, c. 170; Einstein v. Shouse, 24 ria. 490 ; s. c. 5 So. P>,ep. 380. 4 Souder v. Moitow, 33 Penn. St. 83. 5 Ellison V. Pecare, 29 Barb. 333. This was so held because the statute of registration did not apply to mere equities. The precedence was effected by a decree that the parcel conveyed by tlie second deed should be first sold for payment of the mortgage-debt, and its proceeds applied before the first sold parcel should be sold at all. 6 Van "VYagenen v. Hopper, 8 N. J. Eq. 684. OF THE mortgagee's INTEREST. 129 usually provided by statute, that, in order to the registration of a conveyance, the deed should be acknowledged before some magistrate or court, and a certificate thereof entered upon the deed. And if such deed is registered without such an acknowledgment, the registration will not be con- structive notice to any one.^ And the proposition is a gen- eral one, that an irregular registration of a deed is no notice to others of the existence of such deed.^ But an omission of the register to note the time of receiving the deed for record, ^ or to enter it in the index or alphabet,* will not invalidate the effect of the registration. But in Iowa, the law requires a filing of a deed in the registry, a copying upon the records, and an indexing it; and an omission to do either of these will fail to render the registration of an instrument construc- tive notice to third parties.^ In Pennsylvania, the court hold that the record of a deed is not constructive notice to third parties, unless it is duly indexed. "The index is an indis- pensable part of the recording, and without it the record affects no party with notice."* But in Missouri and some other States it is held that a deed filed and recorded in the recorder's office is notice to subsequent purchasers, not- withstanding the failure of the officer to index it.' A deed noted for registration, though not actually recorded till subsequently to a prior deed which was received for record after the second deed, will take precedence of such prior deed.^ § 1078. The Doctrine of Lis Pendens, being a notice to par- ties interested, applies to the case of a mortgage upon which 1 Work V. Harper, 24 Miss. 517 ; White v. Denman, 1 Ohio St. 110 ; Blood v. Blood, 23 Pick. 80. 2 Rushin v. Shields, 11 Ga. 636 ; Dewitt v. Moulton, 17 Me. 418 ; Farmers' Bk. V. Bronson, 14 Mifh. 361 ; Reeves v. Ha3'es, 95 Ind. 521. 8 McLarren v. Thompson, 40 Me. 234 ; Handley v. Howe, 22 Me. 560. See Barney v. McCarty, 15 Iowa, 510, 521. * Curtis V. Lyman, 24 Vt. 338. 6 Jliller V. Bradford, 12 Iowa, 14 ; Barney v. McCarty, 15 Iowa, 510 ; "Whalley V. Small, 25 Iowa, 184. 6 Speer v. Evans, 47 Penn. St. 144. ■^ Bishop V. Schneider, 46 Mo. 472 ; Curtis v. Lyman, 24 Vt. 338 ; Comm'rs V. Babcock, 5 Oreg. 472 ; Throckmorton v. Price, 28 Tex. 605. 8 Ruggles V. Williams, 1 Head, 141. See post, § 2200 ; 1 Jones, Morrg. §§ 456- 577. VOL. II. — 9 130 MORTGAGES. a suit for foreclosure is pending. Service made in such suit is notice of its having been begun. ^ §1079. Of recording Assignments. — Notwithstanding the effect given to a regiftration of a conveyance in the way of notice, tlie registration of an assignment of a mortgage has been held not to be of itself constructive notice to the mort- gagor of its having been made, even where the law requires such assignment to be recorded. ^ And a payment made to a mortgagee without notice of an assignment will be a good payment.^ In Michigan, an exception is made if the mort- gage-note be negotiable, and is negotiated by the mortgagee before it is due.^ But it would be notice as against subse- quent assignees of the mortgage;^ and such prior assignee should cause his assignment to be recorded for his own pro- tection.^ The whole object of the registration acts is to protect subsequent purchasers and incumbrancers against previous deeds and mortgages, etc., which are not recorded. The recording of a deed or mortgage, therefore, is construc- tive notice only to those who have subsequently acquired some interest or right in the property under the grantor or mortgagor; though the question, how far the case of a mort- gage to secure future advances forms an exception to this rule, will be considered hereafter.^ In some of the States it 1 Hoole V. Attornej'-General, 22 Ala. 190. See Center v. P. & M. Bk., id. 743 ; Newman v. Chapman, 2 Rand. 93 ; McPherson v. Housel, 13 N". J. 299. See Fisher, Mortg. 336 ; Haven v. Adams, 8 Allen, 363 ; Jackson v. Warren, 32 111. 331. Any person purchasing the subject-matter of a suit lite jKridcnte is bound by the judgment. Cole v. Lake Co., 54 N. H. 242, 272. 2 Wolcott V. Sullivan, 1 Edw. Ch. 399 ; Reed v. Marble, 10 Paige, 409 ; Pickett V. Barron, 29 Barb. 505 ; Mitchell v. Burnham, 44 Me. 286, 302 ; post, § 2200 ; Williams v. SoiTell, 4 Ves. 389. 3 Mitchell V. Burnham, 44 Me. 302; James v. Johnson, 6 Johns. Ch. 417; Ind. State Bk. v. Anderson, 14 Iowa, 544 ; Johnson v. Carpenter, 7 Minn. 176. * Jones V. Smith, 22 Mich. 360, 365. So Kansas, Burhans v. Hutcheson, 25 Kan. 625 ; at least, after the mortgage is recorded, Lewis v. Kirk, 23 Kan. 497 ; and Indiana, Reeves v. Hayes, 95 Ind. 521 ; Dixon v. Hunter, 57 Ind. 274, prior to the Act of 1877 ; R. S. 1881, § 1093. 5 N. Y. L. I. Co. V. Smith, 2 Barb. Ch. 82. 6 Clark V. Jenkins, 5 Pick. 280 ; Williams v. Birbeck, 1 Hoff. Ch. 359 ; Wil- liams v. Jackson, 17 Cent. L. J. 148; Ogle v. Turpin, 102 III. 148 ; Summers v. Kilgus, 14 Bush, 449 ; Henderson i'. Pilgrim, 22 Tex. 464. ' Stuyvesant v. Hall, 2 Barb. Ch. 151 ; 4 Kent, Com. 174, note ; Bell v. Flem- ing, 12 N. J. Eq. 13 ; Blair v. Ward, 10 N. J. Eq. 119 ; post, § 1093. OF THE mortgagee's INTEREST. 131 has been held, that, where a mortgage has been assigned for a valuable consideration, even a bona fide purchaser, without notice, cannot object to its validity and effect, though not recorded ; ^ which is in accordance with the idea that it is a mere chose in action, transferable by delivery or parol ; and, of course, whoever takes an estate upon which there is a recorded outstanding mortgage is put to inquire in whose hands the mortgage title is, without any further notice. If a junior mortgagee, with notice of a prior unrecorded mort- gage, assigns his mortgage to one who has no notice thereof, and the latter records his assignment before the first mort- gage is recorded, he thereby acquires a precedence over the first mortgagee. So if a junior mortgagee in a recorded mort- gage, without notice of a prior unrecorded mortgage, assign to one who has notice of such prior mortgage, the assignee will have preference over the last-mentioned mortgage, since he has the rights in that case of his assignor.^ § 1080. Of Judgment and Mortgage Liens. — In SOme of the States a judgment forms a lien upon the real estate of the debtor, and in some of these a docketed judgment is preferred to a prior unregistered mortgage.^ And if the priority can- not be determined, they will be satisfied pro rata.^ In others, a mortgage unrecorded will take priority of a subsequent judgment docketed. But if the sheriff proceeds to sell under such judgment to a bona fide purchaser before the mortgage is registered, the purchaser will have the rights of a purchaser, and be protected against such mortgage.^ § 1081. Doctrine of tacking. — In England there is a doc- trine in relation to mortgages, by which, if there were, for 1 Wilson V. Kimball, 27 N. H. 300; Cicotte v. Gagnier, 2 Mich. 381. See Mott V. Clark, 9 Penn. St. 399. See Stat, of Penn. 18-19, p. 527 ; 1872, vol. 1, p. 471, that assignments will be notice if recorded. So Philips j;. Lewistown Bk., 18 Penn. St. 394. 2 Fort V. Burch, 5 Denio, 187. See La Farge Ins. Co. v. Bell, 22 Barb. 54 upon what the priority among several mortgagees depends. 8 Friedley v. Hamilton, 17 S. & R. 70 ; Davidson v. Cowan, 1 Dev. F.q. 470; Sturgess v. Cleveland, 3 McLean, 140 ; Uhler v. Hutchinson, 23 Penn. St. 110. * Hendrickson's App., 24 Penn. St. 363. See Sigourney v. Eaton, 14 Pick. 414, that two simultaneous attaching creditors will share equally in levying upon real estate. 6 Jackson v. Dubois, 4 Johns. 216 ; Schmidt v. Hoyt, 1 Edw. Ch. 652 ; Hamp- ton V. Levy, 1 McCord, Ch. 107. 132 MORTGAGES. instance, three successive mortgages, without notice, upon the same estate, to three different persons, and the third acquires the first mortgage by assignment, he may hold the estate against the second until he shall have paid both the first and the third. This is called "tacking" of mortgages, and rests upon the idea that the equities of the parties are all equal, and the first, being in possession, shall not be obliged to give up his legal right of possession till his whole charge upon the estate is satisfied.^ So, where a mortgagee makes a further advance, and has no notice of any claim adverse to his title, being regarded as a purchaser for value, he is entitled to tack the further advance to the original mort- gage. ^ But in this country, this doctrine is wholly super- seded by the principle of registration, w^hereby the record of a prior mortgage is constructive notice to all parties of its existence. ' If it is not recorded, and the second has no notice of it, in fact, his own takes precedence of the prior one,^ In Pennsylvania it is expressly held that a mortgage is security only for the specific debt for which it was given ;^ while in other of the States the courts have allowed a mortgagee to hold the premises against a mortgagor, his heir or devisee, until all subsequent advances made by the mortgagee to the mortgagor shall have been paid, in case such mortgagor, his heir or devisee, shall seek to redeem the mortgaged premises. But this does not apply as to purchasers or incumbrancers whose rights arise after the making of such mortgage; nor is it allowed to the mortgagee if he undertakes to enforce his mortgage by foreclosure.^ 1 Wms. Eeal Trop. 363. 2 Young V. Young, L. R. 3 Eq. 801, 805. 3 4 Dane, Abr. 171 ; Grant v. Bissett, 1 Gaines, Cas. 112 ; Coote, Mortg. (Am. ed.) 386, n. ; M'Kinstry v. Merwin, 3 Johns. Ch. 466 ; Burnet v. Denniston, 5 Johns. Ch. 35; Bridgen v. Carhartt, 1 Hopk. Ch. 231 ; Osborn v. Carr, 12 Conn. 195; Brazee v. Lancaster Bk., 14 Ohio, 318 ; Anderson v. Tseff, 11 S. & E. 208 ; Loring V. Cooke, 3 Pick. 48 ; Green v. Tanner, 8 Met. 411 ; Jlarsh v. Lee, 1 Wliite & Tnd. Lead. Cas. 406, Ara. ed. See also Averill v. Guthrie, 8 Dana. 82 ; Thompson v. Chandler, 7 Me. 377, 381 ; Siter v. McClanachan, 2 Gratt. 280, 305. * Dorrow v. Kelley, 1 Dall. 142 ; Anderson v. Neff, supra ; Thomas' App., 30 Penn. St. 378. 5 Lee V. Stone, 5 Gill & J. 1 ; Coombs v. Jordan, 3 Bland, 284 ; Downing v. Palmateer, 1 T. B. Mon. 64 ; Siter v. McClanachan, 2 Gratt. 280 ; Walling v. Aiken, 1 McMuUan, Eq. 1. OF THE mortgagee's INTEREST. 133 § 1082. Extension of Lien in Massachusetts. — Although the English doctrine of tacking does nut apply in Massachusetts, the courts sometimes virtually extend the lien of a mortgage hcyond securing the debt originally contemplated by the par- ties, when the rights of third persons are not impaired, by refusing relief to the mortgagor in redeeming his estate, unless he pays such additional sums. Thus, though after a mortgage has been satisfied it cannot be made a security for a new debt by an oral agreement between the parties, yet if such agreement has been made, and money advanced by the mortgagee to the mortgagor upon the strength of it, the court will not aid the mortgagor or any one claiming under him, with notice, to cause the mortgage to be cancelled or released until such additional advances shall have been repaid. ^ So where, after a breach of the condition of a mortgage, the mortgagee advances money to the mortgagor under an oral agreement that the mortgage should stand as security there- for, the court will not allow the mortgagor, or any one having no better equity than he, to redeem the estate without allow- ing and paying such advancements. ^ § 1083. Mortgages for Future Advances. — It is, however, of frequent occurrence, that a mortgage provides for further ad- vances or liabilities, and is so made as to cover these; and such a mortgage may be valid, if made lona fide, and so framed as to disclose the purposes of the mortgage, together with the means of ascertaining the amount of such advances or liabilities, so that creditors, or after-purchasers, or mort- gagees, may know to what the estate is subject when they purchase.^ And these advances may be to be made to the 1 Joslyn V. Wyman, 5 Allen, 62 ; post, § 1120. 2 Stoue V. Laue, 10 Allen, 74 ; Upton i\ So. Read. Bk., 120 Mass. 1.53. 3 United States v. Hooe, 3 Cranch, 73 ; Conard v. Atlantic Ins. Co., 1 Pet. 386, 448 ; Badlam v. Tucker, 1 Pick. 389 ; St. And. Ch. v. Tompkins, 7 Johns. Ch. 14 ; Hubbard v. Savage, 8 Conn. 215 ; Crane v. Deniing, 7 Conn. 387. In this case the advances were made after subsequent mortgages upon the same estate, but held to be secured by the prior mortgage. Shirras i'. Caig, 7 Cranch, 34 ; Leeds y. Cameron, 3 Sumn. 488 ; Seaman v. Fleming, 7 Rich. Eq. 283 ; Collins v. Carlile, 13 111. 254; Commercial Bk. v. Cunningham, 24 Pick. 270; Truscott v. King, 6 N. Y. 147 ; Craig v. Tappin, 2 Sandf. Ch. 78 ; Shepard v. Shepard, 6 Conn. 37 ; Lewis V. De Forest, 20 Conn. 427 ; Handy v. Comni. Bk., 10 B. Mon. 98 : Ketchum V. Jauncey, 23 Conn. 123; Goddard v. Sawyer, 9 Allen, 78; Adams v. "Wheeler, 1^4 MORTGAGES. mortgagor or third persons, ^ and in other property than money. ^ The bona fides in these cases is a question of fact. But the consideration expressed is no test of the validity of such a mortgage, if made for future advances ; nor is it neces- sary that the deed should stipulate as to the amount of such advances.^ And the liberality which courts of late extend toward advances made with a view of being covered by exist- ing mortgages makes this limitation rather a nominal than a real one. It seems to be enough that the mortgage indicates the mode of ascertaining what sums it covers, although to do this recourse must be had to collateral proof by parol evi- dence. Thus it was held in Ohio to be sufficient that it could be shown by evidence what indebtedness was intended.^ In another case, the condition of the mortgage was to secure the payment of moneys then due, or that might thereafter become due, from a third person to the mortgagee.^ In New York, the deed in one case recited that it was contemplated to make loans and advances from time to time; and the con- dition was to pay "all such drafts and bills of exchange as may be discounted or advanced," without fixing any limit as to time or amount ; — and it was held to be good. In Vermont,^ a condition in a mortgage to pay " all I now or may hereafter owe the mortgagee " is good, and the same rule is applied in Michigan." If the amount limited in terms, in the mortgage, of the advances to be thereby secured, has been advanced, it would not be competent, as against a junior incumbrancer, to show by parol that it was intended to cover a further indebt- 10 Pick. 199 ; Foster v. Reynolds, 38 Mo. 5.53 ; Youngs v. Wilson, 24 Barb. 510 ; Vanmeter v. Vanmeter, 3 Gratt. 148 ; Burdett v. Clay, 8 B. Mon. 287; Thomas V. Kelsey, 30 Barb. 268 ; Wilson v. Russell, 13 Md. 494, 536 ; Bell v. Fleming, 12 K J. Eq. 13, 16; Lawrence v. Tucker, 23 How. 14; Thacher v. Churchill, 118 Mass. 108 ; Hall v. Tay, 131 Mass. 192. 1 Maffitt V. Rynd, 69 Penn. St. 380. 2 Brooks V. Lester, 36 Md. 65. 3 Miller v. Lockwood, 32 N. Y. 293 ; McKinster t;. Babcock, 26 N. Y. 378. Otherwise in Maryland by statute. Gen. Stat. 1888, art. Q&, § 2. * Hurd V. Robinson, 11 Ohio St. 232. 5 Kramer v. Farmers' Bk., 15 Ohio, 253. See McDaniels i'. Colvin, 16 Yt. 300 ; Seymour u. Darrow, 31 Vt. 122 ; Craig v. Tappin, 2 Sandf. Ch. 78. 6 Robinson v. Williams, 22 N. Y. 380 ; Youngs v. Wilson, 27 K Y. 351. "< McDaniels v. Colvin, 16 Yt. 300; Seymour v. Darrow, 31 Yt. 122 ; Soule v. Albee, id. 142 ; Mich. Ins. Co. v. Brown, 11 Mich. 265. OF THE mortgagee's INTEREST. 135 ednoss.' So if the condition covers "debts accruing upon some written contract or agreement signed, etc. ; " no debt not coming within this description can be held to be secured by the mortgage. ^ If given to indemnify for having signed a note, parol evidence is competent to show that the note pro- duced was the one intended.'' If the time within which the future advances are contemplated to be made is limited in the mortgage, any advances made afterwards will not be cov- ered by the mortgage.* § 1084. Mortgages for Future Advances, continued. — In New Hampshire, a mortgage cannot cover future advances; and if made for a present debt and future advances, it will be good for the former, but not for the latter.^ But such mortgage would be good, though made in New Hampshire, if the estate mortgaged were situated in Massachusetts.® The court of Connecticut held, that, where the mortgagee was by his contract with the mortgagor bound to make the advances intended to be secured by the mortgage, he would take pre- cedence of intermediate mortgagees.'' But the general rule seems to be, that optional future advances will be postponed to mortgages made after the one providing for such advances and before they were actually made, of which the mortgagee making the advances had notice before making them.^ The general view of American courts is that this notice must be actual and that constructive notice by recordation of the after-made mortgage is not sufficient.^ 1 Murray v. Barney, 34 Barb. 336, 347 ; Utica Bk. v. Finch, 3 Barb. Ch. 293. 2 Walker v. Paine, 31 Barb. 213. 8 Goddard v. Sawyer, 9 Allen, 78 ; Bell v. Fleming, 12 N. J. Eq. 13. * Miller v. Whittier, 36 Me. 577; Truseott v. King, 6 N. Y. 147. 6 N. H. Bk. V. Willard, 10 N. H. 210 ; Johnson v. Richardson, 38 N". H. 353. 6 Goddard v. Sawyer, 9 Allen, 78. ^ Crane v. Deining, 7 Conn. 387; Boswell v. Goodwin, 31 Conn. 74 ; Cox v. Hoxie, 115 Mass. 120, sustains this view. 8 Spader v. Lawler, 17 Ohio, 371 ; Frye v. Illinois Bk., 11 111. 367. See Brinkerhotf v. Marvin, 5 Johns. Ch. 320 ; Ter Hoven v. Kerns, 2 Penn. St. 96 ; Montgomery Co. Bk. App., 36 Penn. St. 170; Ladue v. Detroit, etc. R. R., 13 Mich. 380, 408. 9 Anderson v. Liston, 69 Minn. 82; s. c. 72 N. AV. Rep. 52 ; Union Nat. Bank V. Milburd & Stoddard Co., 7 N. Dak. 201 ; s. c. 73 N. AV. Rep. 527 ; Schmidt v. Zahrudt, 148 Ind. 447; s. c. 47 N. E. Rep. 335. Contra, Spader v. Lawler, 17 Ohio, 371 ; Ter Hoven v. Kerns, 2 Barr, 96 ; Parmentier v. Gillespie, 9 Barr, 86. 136 MORTGAGES. § 1085. Mortgage as affecting After-acquired Property. — As a general proposition, a man cannot mortgage property which he does not own.i But whatever buildings, improvements, or fixtures a mortgagor puts upon mortgaged premises, become a part of the premises, and are covered by the mortgage ; '^ and this would be understood to embrace a steam saw-mill, en- gines, fixtures, etc.** And this extends to equitable as well as legal mortgages.* And the principle is very broad, in- cluding trade fixtures attached to buildings by bolts and screws, although they may be removed without injury to the freehold.^ So it applies to whatever is added to a railroad under mortgage, although furnished by the holders of a sub- sequent mortgage.^ And to all improvements made upon mortgaged premises. Neither the mortgagor nor his grantee can claim allowance for the same.''' : § 1086. Same — Railway Rolling-stock. — And this has been carried in the case of railroads so far as to embrace the fran- chise, and, as an accession to that, whatever property the cor- poration afterwards acquired.^ The courts of New York at 1 Looker v. Peckwell, 38 N. J. 253 ; Ross v. Wilson, 7 Bush, 29. Hence, a mortfao-e of crops not yet planted is void at law, Toailinson v. Greenfield, 31 Ark. 557; Eedd v. Burrus, 58 Ga. 574 ; though good in equity and operative when the crops come into existence, Mitchell v. Winslow, 2 Story, 630 ; Smithiirst v. Edmunds, 14 N. J. Eq. 408; Jones v. Webster, 48 .\la. 109 ; Arques v. Wa.sson, 51 Cal. 620 ; Evermann v. Robb, 52 Miss. 653. But see Van Hoozer v. Cory, 84 Barb. 9, 12. 2 Winslow V. Merch. Ins. Co., 4 Met. 306 ; Pettengill v. Evans, 5 N. H. 54 ; Sands v. Pfeiffer, 10 Cal. 258 ; Butler v. Paige, 7 Met. 40 ; Buruside v. Twitchell, 43 N. H, 390 ; Walmsley v. Milne, 7 C. B. N. s. 115, case of a steam-engine, etc. ; Snedeker v. Warring, 12 N. Y. 170, case of a statue ; Meriam v. Brown, 128 Mass. 391, rails laid by railroad without taking the land ; Laflin v. Griffiths, 35 Barb. 58 ; Jones V. Richardson, 10 Met. 481, 488 ; Place v. Fagg, 4 Man. & R. 277 ; ante, §§ 3, 4, 5 ; Hoskin v. Woodward, 45 Penn. St. 42 ; Davis v. Buffum, 51 Me. 160 ; Preston v. Briggs, 16 Vt. 124 ; Cole v. Stewart, 11 Gush. 181. In Bryant v. Pen- nell, 61 Me. 108, new shrubs, grown from the old, pass by a mortgage of a nursery. 8 Brennan o. Whitaker, 15 Ohio St. 446; Daniels v. Bowe, 25 Iowa, 403. * Tebb V. Hodge, L. R. 5 C. P. 73. 5 Longbottom v. Berry, L. R. 5 Q. B. 123 ; State Bk. v. Kircheval, 65 Mo. 682, 6 Galveston R. R. v. Cowdrey, 11 Wall. 459, 482. • Martin v. Beatty, 54 111. 100. 8 Pierce v. Emery, 32 N. H. 484. But this case, so far as it included future property without express language to that effect, or unless the property was strictly appurtenant, has not been followed. Dinsmore v. Racine & M. R. R., 12 Wis. OF THE mortgagee's INTEREST. 137 one time treated the rolling-stock, cars, engines, etc., of such a company as fixtures of the road, and as passing under a mortgage of the road.^ But in later cases they hold such rolling-stock to be personalty, and not a part of the realty. ^ The United States courts favor the idea of its being a part of the realty, and passing by a mortgage of that.^ In Vermont, the matter seems to be determined by statute, declaring it a part of the realty.* And such appears to be the opinion of the courts of Kentucky and Tennessee.^ In Illinois, Pennsyl- vania, Maine, and Alabama, such rolling-stock is held a part of the realty.^ Mr. Jones has also discussed the matter at length;" and it may be stated in this connection, that no rail- 649; Coe v. Columbus K. R., 10 Ohio St, 372; Miss. Vail. Co. v. Chicago R. R., 58 Miss. 896. So Louisiana. Rev. Code 1870, § 3308. See also Bost., C. & M. R. R. V. Gilmore, 37 N. H. 410, 419. In Hamlin v. Jerrard, 72 Me. 62, 77, the point is waived. If such future-acquired property is in terms included, it will pass. Phila. R. R. v. Woelper, 64 Penn. St. 372 ; Weetjen v. St. Paul, 4 Hun, 529 ; Ehvell v. Grand St. R. R., 67 Barb. 83 ; Hamlin v. Jerrard, supra ; Hamlin V. Eur. & X. A. R. R., 72 Me. 83 ; Emerson v. Eur. & N. A. R. R., 67 Me. 387 ; Holroyd v. Marshall, 10 H. L. Cas. 191, 223 ; Willink v. Morris Canal Co., 4 X.J. Eq. 377 ; Phillips v. Winslow, 18 B. Mon. 431. And changes in the property or location, if contemplated, do not affect the result. Hamlin v. Jerrard, Ehvell v. Grand St. R. R., supra. But only such property passes as is clearly within the scope of the mortgage, Walsh v. Martin, 24 Ohio St. 28 ; Farmers' L. & T. Co. v. Carey, 13 Wis. 110; Brainerd v. Peck, 34 Vt. 498 ; Bath v. Miller, 53 Me. 308 ; Morgan v. Donovan, 58 Ala. 241 ; or its contemplation, Emerson v. Eur. & N. A. R. R., supra; Morgan v. Johnston, 53 Ala. 237; Miss. Vail. Co. v. Chicago R. R., supra. But this is not limited in extent to the present needs of the company. Hamlin v. Eur. & N. A. R. R., supra. See also a^Uc, § 19. 1 Farmers' Loan Co. v. Hendrickson, 25 Barb. 484 : Sangamon R. R. r. Morgan, 14 111. 163. 2 Hoyle V. Plattsb., etc. R. R., 54 X. Y. 314 ; Randal v. Ehvell, 52 X. Y. 521; Coe V. Columbus R. R., 10 Ohio St. 390 ; Dinsmore v. Racine & M. R. R., 12 Wis. 649. But this is now changed by statute in Xew York. 2 R. S. (1875) p. 555, §115. 3 Minn. Co. v. St. Paul Co., 2 Wall. 609, 644, 645 and note. * Miller v. R. & W. R. R., 36 Vt. 452, 490. 5 Phillips V. Winslow, 18 B. Mon. 431 ; Douglass v. Cline, 12 Bush, 608, 630 ; Buck V. Memphis R. R., 4 Cent. L. J. 430. 6 Palmer v. Forbes, 23 111. 301 ; McLaughlin v. Johnson, 46 111. 163 ; Young- man V. Elmira R. R., 65 Penn. St. 278 ; ilorrill v. Xoyes, 56 Me. 458 ; Morgan v. Donovan, 58 Ala. 241. In Illinois this is now changed. Const. 1870, art. 11, § 10. So in Missouri and other States. Jones, Railr. Securities, § 171. See § 19. ' Mortg. § 452 ; Railr. Securities, §§ 146-187, where the whole subject is so fully presented that no further statement of the law seems to be called for in this treatise. See also 2 Redf. Railr. 533, 536. 138 MORTGAGES. road corporation can mortgage its road and franchise without legislative authority so to do.^ § 1087. "Waiving Foreclosxire. — By a strict foreclosure, the mortgagee acquires an absolute estate in the premises ; but while he may, after entering for condition brol^en and for purposes of foreclosure, abandon his possession and waive such entry,^ yet if, after making entry, he sue a tenant in possession who is a tenant at will of the mortgagor, in a writ of entry, it is not a waiver of the actual entry already made by him, unless in such suit he prays for conditional judg- ment.^ But he may waive a foreclosure itself, and open the mortgagor's right of redemption by accepting payinent of the mortgage-debt as an existing one;* or, in some cases, even suing for the debt, or for an alleged balance due upon the mortgage, on the ground that the mortgaged estate was of less value than the amount of the debt.^ On the other hand, a mortgagee cannot be made the absolute owner of the mort- gaged estate against his will, nor until after he shall have duly foreclosed the mortgagor's right of redemption.^ 1 Coniraonwealth v. Smith, 10 Allen, 448. 2 Botham v. Mclntier, 19 Pick. 346 ; White v. Rittenmyer, 30 Iowa, 268. 3 Fletcher v. Carey, 103 Mass. 475. * Lawrence v. Fletcher, 10 Met. 344 ; Deraing v. Comings, 11 N. H. 474 ; Batchelder v. Robinson, 6 N. H. 12. See post, § 1169. * Dashwood v. Blythway, 1 Eq. Cas. Abr. 317 ; Lockhart v. Hardy, 9 Beav. 349. And see Mass. Pub. Stat. 1881, c. 181, § 42 ; Morse v. Merritt, 110 Mass. 458. * Goodwin v. Richardson, 11 Mass. 469 ; Eaton v. Whiting, 3 Pick. 484. OP THE mortgagor's INTEREST. 139 CHAPTER XL VI. MORTGAGES — OP THE MORTGAGOR'S INTEREST. § 1088. Mortgagor's interest. 1089. Mortgage revoking will. 1090. Eiiuity of redemption inheritable. 1091. Effect of performance of condition. 1092. Equity of redemption may be mortgaged. 1093. Mortgagor's estate in respect to strangers. 1094. Liability for debts of mortgagor. 1095. Liability for debts of mortgagor, continued. 1096. Damages upon eminent domain and tax proceedings. 1097. When a mortgage is not an alienation. 1098. When mortgagor liable for rents. 1099. Curtesy and dower. 1100. Of disseisin affecting mortgagee. 1101. Mortgagor's rights as against mortgagee. 1102. Mortgagor's duty to protect estate. 1103. Rights and remedies of mortgagor upon paying mortgage-debt. 1104. Equity of redemption, how enforced. 1105. Constitutional law. 1106. Effect of performance of condition. 1107. Effect of tender after condition broken. 1108. Who may redeem. 1109. Whole debt must be paid. 1110. How far purchaser of equity of redemption can impeach mortgage. 1111. Incidents of right to redeem. 1112. Enforcing mortgage for larger sum than then due. 1113. Contribution and subrogation. 1114. Further of the right to redeem. 1115. Parties to redemption proceedings. 1116. Bill to redeem must make tender. 1117. Redemption barred by limitation. 1118. When payment presumed from lapse of time. 1119. Mortgage survives changes in form of debt. 1120. What will not discharge the mortgage. 1121. Payment and discharge. § 1088. Mortgagor's Interest. — The interest of a mortgagor in the mortgaged promises will be found to be much more simple, uniform, and well-defined, both in law and equity, 140 MORTGAGES. than that of a mortgagee. At one time it was held, that, after a breach of the condition of his mortgage, a mortgagor had a mere right to recover back, by the payment of the money due, the estate which had passed out of him. But it is now settled that he has an actual estate, which he may de- vise or grant, though he holds possession and receives the profits at the will of the mortgagee, who may evict him with- out notice.^ The estate of the mortgagor in the lands is real property, and is conveyed, devised, and taken upon legal pro- cess, as such. 2 § 1089. Mortgage revoking Will. — A mortgage made by the owner in fee will not operate except ^ro tanto to revoke a will already made, whereby the same land has been previously devised,^ even though the mortgage be to the devisee himself.* § 1090. Equity of Redemption inheritable. — This estate of a mortgagor is governed by the same rules, as to its devolu- tion by descent or otherwise, as any other estate in lands; and the same technical forms have been required in order to make a valid devise of an equity of redemption, as of land itself, ever since the time of Lord Hardwicke (1737).^ Thus, where the deed contains a power of sale, with a provision that any surplus, after satisfying the debt, shall be paid to the mortgagor or his executors, etc., if the sale is made in the life of the mortgagor, the surplus goes to him or his executors as personal estate; if not till after his death, it goes to his heir, the estate having, in the meantime, become the heir's by descent.^ § 1091. Effect of Performance of Condition. — If the mort- gagor performs the condition of his mortgage according to its terms, he at once defeats the estate of the mortgagee, and is in of his original estate, without any further act, unless his deed requires some deed of release from the mortgagee ; and 1 Co. Lit. 205 a, Butler's note, 96 ; Code, Mortg. 23 ; White v. "Whitney, 3 Met. 81 ; Laussat's Fonbl. Eq. 491, n. ; Buchanan v. Monroe, 22 Tex. 537. 2 White V. Rittenmyer, 30 Iowa, 268. 8 Thorne v. Thorne, 1 Vern. 141 ; Hall v. Dench, id. 329 ; Casborne v. Scarfe, 1 Atk. 606 ; McTaggart v. Thorn j)Son, 14 Penn. St. 149 ; Ledyard v. Butler, 9 Paige, 132. * Baxter v. Dyer, 5 Ves. 656. 6 Chamberlain v. Thompson, 10 Conn. 243 ; Coote, Mortg. 26. 6 Wright V. Eose, 2 Sim. & S. 323 ; Bourne v. Bourne, 2 Hare, 35. OF THE mortgagor's INTEREST. 141 he may have an action at common law against the mortgagee, if in possession, to recover the land. But a tender afterwards docs not.^ § 1092. Equity of Redemption may be mortgaged. — A mort- gagor, SO long as he has an equity of redemption, has an estate which he can convey in mortgage by successive deeds, which will take precedence according to their order in time, where the subsequent mortgagee has had notice, actual or constructive, of the prior ones.^ Thus where one made three successive mortgages, in the first of which was a power of sale, and the debtor's equity of redemption was sold upon execution. The first mortgagee having sold the estate, and a surplus remaining after satisfying his own mortgage, it was held that the purchaser of the equity could claim only the surplus, if any, of this excess, after the second and third mortgages had been satisfied in full.^ § 1093. Mortgagor's Estate in Respect to Strangers. — Even in those States which hold to the common law theory of mort- gages, the mortgagor's estate is a complete legal estate, with all its incidents, as to all the world but the mortgagee and those claiming under him.^ It has accordingly been held that a mortgagor may sue for and recover the mortgaged land against a stranger. And no objection can be interposed that a third person holds a mortgage on the same, the condition of which has been broken." It is accordingly liable for the ^ Holman v. Bailey, 3 Met. 55 ; Erskine v. Townsend, 2 Mass. 493 ; Grover v. riye, 5 Allen, 543 ; Currier v. Gale, 9 Allen, 522 ; Maynard v. Hunt, 5 Pick. 240 ; Shields v. Lozear, 34 N. J. 496 ; Stewart v. Crosby, 50 Me. 130. See aate, § 1044 ; post, § 1107, however, as to the effect of payment after the law day. 2 Coote, Mortg. 34 ; Bigelow v. Willsou, 1 Pick. 485 ; Newall v. "Wright, 3 :Ma.ss. 138. 8 Andrews v. Fiske, 101 llass. 422. 4 Blaney v. Bearce, 2 Me, 132 ; Wilkins v. French, 20 Me. Ill ; Groton v. Boxborough, 6 Mass. 50; Felch v. Taylor, 13 Pick. 133; Bradley r. Fuller, 23 Pick. 1 ; White v. Whitney, 3 Met. 81 ; On- v. Hadley, 36 ^'. H. 575 ; Willing, ton V. Gale, 7 Mass. 138 ; Punderson ;;. Brown, 1 Day, 93 ; Clark v. Beach, 6 Conn. 142; Cooper w. Davis, 15 Conn. 556; Schuylkill Co. v. Tlioburn, 7 S. & R. 411 ; Asay v. Hoover, 5 Penn. St. 21 ; Waters v. Stewart, 1 Caines, Cas. 47 ; Hitchcock V. Harrington, 6 Johns. 290. ^ Woods V. Hilderbrand, 46 Mo. 284; post, § 1097. So a prior mortgage is no bar to ejectment by a second mortgagee against the mortgagor. Savage v. Dooley, 28 Conn. 411, 142 MORTGAGES. mortgagor's debts ;^ and if levied upon and sold on execution, the purchaser may have trespass against him for acts done by him subsequently upon the ])remises, unless the mortgagee shall at the time be in possession.''^ § 1094. Liability for Debts of Mortgagor. — In Massachusetts, after such a levy and sale, the mortgagor still has a right to redeem the equity of redemption, and thereby restore himself to the right to redeem the estate from the mortgage. And this right he may mortgage, and the right in equity to redeem the prior right from the second mortgagee may be levied upon as his estate.^ If a judgment becomes a lien upon an equity of redemption, by attachment or otherwise, and the mortgage is discharged, it attaches to the land itself.* A mortgagee may not, however, sue the note which is secured by a mort- gage, and levy his execution upon the maker's right in equity to redeem the estate from the same mortgage.^ But if such note has been bona fide sold and indorsed to a stranger by the mortgagee, without assigning the mortgage, the purchaser may sue the mortgagor and levy upon his equity of redemp- tion.^ And in Maine and several other States the mortgagee himself may sue the mortgage-debt, and levy upon mort- gagor's equity of redemption to satisfy it.^ But now in New 1 Trimm v. Marsh, 54 N. Y. 599, even after the mortgagee has entered into possession after condition broken. '■i White V. Whitney, 3 Met. 81 ; Fernald v. Linscott, 6 Me. 234 ; Fox v. Hard- ing, 21 Me. 104. 3 Reed v. Bigelow, 5 Pick. 281. * McCormick v. Digby, 8 Blackf. 99 ; Freeman v. McGaw, 15 Pick.- 82. ^ Lyster v. Dolland, 1 Ves. Jr. 431 ; Atkins v. Sawyer, 1 Pick. 351 ; Camp v. Coxe, 1 Dev. & B. 52 ; Deaver v. Parker, 2 Ired. Eq. 40 ; Washburn v. Goodwin, 17 Pick. 137 ; Goring v. Shreve, 7 Dana, 64 ; Waller v. Tate, 4 B. Mon. 529 ; Powell V. Williams, 14 Ala. 476 ; Barker v. Bell, 37 Ala. 358 ; Boswell v. Carlisle, 55 Ala. 554 ; Buck v. Sherman, 2 Doug. (Mich.) 176 ; Hill v. Smith, 2 McLean, 445 ; Thornton v. Pigg, 24 Mo. 249 ; Young v. Kuth, 55 Mo. 515. 6 Crane v. March, 4 Pick. 131 ; Waller v. Tate, 4 B. Mon. 529 ; Andrews v. Fiske, 101 Mass. 422. "> Crooker v. Frazier, 52 Me. 405 ; Porter v. King, 1 Me. 297. So Freeby v. Tupper, 15 Ohio, 467 ; Fosdick v. Eisk, id. 84; Hollister v. Dillon, 4 Ohio St. 197 ; Youse v. McCreary, 2 Blackf. 243. But in these cases the execution pur- chaser takes free of the mortgage. Ibid. In New Jersey and Arkansas, however, the mortgagee can levy on the equity of redemption, and the mortgage debt is only reduced pro tanto. Deare v. Carr, 3 N. J. Eq. 513 ; Rice v. "Wilburn, 31 Ark. 108. In Illinois, also, the statute holding the mortgagor's estate liable to execu- OF THE mortgagor's INTEREST. 143 York, North Carolina, and Indiana, by statute, a mortgagee may not sell the equity of redemption of his mortgagor on a judgment recovered upon the mortgage-debt. ^ It is upon the principle above stated, that where the principal in a note procured another to be his surety, and gave him a mortgage as collateral security therefor, the payee of the note was not at liberty to sue on the note, and levy upon the principal's equity of redemption.^ But where the mortgagor made a sec- ond mortgage of the estate, including also other land, the first mortgagee was held authorized to sue his mortgage-debt, and levy his execution upon the debtor's right to redeem from the second mortgage.^ One ground upon which the court in Atkins V. Sawyer^ denied the right in the mortgagee to sue the mortgage-debt and levy upon the equity of redemption was, that there arises an implied contract on the part of the mortgagee with the mortgagor, that, as to that land, he would give him the ordinary time of redemption, Avhich he ought not to be at liberty to curtail by selling the mortgagor's right to redeem; but that no such implied contract exists in respect to the equity of redemption from a second mortgage made to a third party. § 1095. Liability for Debts of Mortgagor, continued. — This right of levying upon a debtor's equity of redemption did not exist at common law, because, as has been before stated, that equity was not originally regarded as an estate.^ But in the United States, equities of redemption have, as to their being subject to debts, generally been placed on the same ground as legal estates, though such is not the case in some of the States. tion is construed to include execution for the mortgage debt. Cottingham v. Springer, 88 111. 90. 1 Code Civ. Proc. 1882, § 1432 ; Palmer v. Foote, 7 Paige, 437 ; Tice v. Annin, 2 Johns. Ch. 125 ; Ind. Aunot. Stat. 1894, § 1115; N. Carolina, Code, Eem. Just. 1876, § 1432. The law was formerly otherwise in New York. Jackson v. Hull, 10 Johns. 481. And in North Carolina the same restriction does not apply against selling for a debt secured by other lien than mortgage. Rollins v. Henrv, 86 N. C. 714. 2 Bronston v. Robinson, 4 B. Mon. 142. 3 Johnson v. Stevens, 7 Cusli. 431. * 1 Pick. 351. 5 Plunket V. Penson, 2 Atk. 290 ; Forth v. Norfolk, 4 Madd. 503 ; 1 Sand. Uses, 275. 144 MORTGAGES. Thus, in applying the law of Maryland, the United States court held to the rule of the common law that an equity of redemp- tion could not be taken in execution, while in New York, Connecticut, and others of the States, it is treated as a com- mon law right. 1 § 1096. Damages upon Eminent Domain and Tax Proceed- ings. — In Massachusetts and Connecticut, if land under a mortgage is taken by a railroad company or a city, in the exercise of the right of eminent domain, the mortgagor, if in possession, may claim the damages for such taking.^ But in New York and Maine the mortgagee may claim them.^ Upon the same principle, where the value of mortgaged premises depended upon the privilege of drawing water for the use of a mill thereon from a public canal, and this having been changed by the State, with provision for making compensa- tion to persons thereby injured, it was held that the mort- gagee, in this case, might claim the damages, if the estate was insufficient without them to satisfy the mortgage-debt.* But in Massachusetts a mortgagor in possession may main- tain a complaint and recover damages for flowing his land under the mill acts.^ But so far as notice is required to be given to the owner of land of the intended location of a high- way across it,^ or notice to repair the street in front of it,'^ or of a petition to enforce a mechanic's lien upon it,^ the mort- gagor, if in possession, is deemed the owner. So taxes upon lands under mortgage, and which constitute a lien upon the same, are assessed to the mortgagor if in possession, and the J "Van Kess v. Hj'att, 13 Pet. 294 ; Jackson v. Willard, 4 Johns. 41 ; Punder- Ron V. Brown, 1 Day, 93. In South Carolina and other States it is made subject to execution by statute. State v. Laval, 4 McCord, 336. 2 Breed v. East. R. R., 5 Gray, 470, n. ; Farnsworth v. Boston, 126 Mass. 1 ; Isele V. Schwamb, 131 Mass. 337, 341 ; Whiting v. New Haven, 45 Coun. 303. But this is now altered in Massachusetts by statute as regards taking by railroads. Pub. Stat. c. 112, §§ 108, 109. 8 Astor V. Hoyt, 5 Wend. 603; Wilson v. Eur. & N. A. R. R., 67 Me. 358. * Auburn Bk. v. Roberts, 44 N. Y. 192, 202. 6 Paine v. Woods, 108 Mass. 160. 6 Parish v. Gilmanton, 11 "NT. H. 293. See Wright r. Tukey, 3 Push. 290. 7 Norwich v. Hubbai'd, 22 Conn. 587. See Mills v. Shepard, 30 Cona. 98. 8 Howard v. Robinson, 5 Cash. 119. OP TUE mortgagor's INTEREST. 145 notices nnd proceedings requisite to enforce their payment by sale are to and with the mortgagor as owner. ^ § 1097. When a Mortgage is not an Alienation. — By the provisions of policies of insurance in mutual lire-insurance companies, there is generally inserted a clause whereby an alienation of the estate by the insured, with certain excep- tions, will avoid the policy. But it has been held, that a mortgage is not such an alienation as will avoid it.^ So it was held that a mortgage was not an alienation when applied to a contract giving another the right of pre-emption. ^ So in an action of ejectment brought by a mortgagor, it is no de- fence that the title to the premises is in a third person as mortgagee, if the tenant do not hold under such mortgagee.* Yet when a mill-owner flowed mortgaged lands which were in the possession of the mortgagor, who released the damages to the mill-owner, it was held not to bind the mortgagee in respect to damages accruing after he took possession under his mortgage.^ Nor could the mortgagor of an undivided share of real estate bind his mortgagee by any deed of parti- tion made between the mortgagor and his co-tenant.^ § 1098. When Mortgagor liable for Rents. — The mortgagor cannot be charged with rents of the premises before the mort- gagee shall have obtained actual possession, even though the premises are an inadequate security for the debt; and this 1 Parker v. Baxter, 2 Gray, 185 ; Mass. Pub. Stat. 1881, ch. 11, § 13; Kalston ;;. Hughes, 13 111. 469 ; Coombs v. Warren, 34 Me. 89 ; Frye v. Illinois Bk., 11 111. 3G7 ; Kortright v. Cady, 23 Barb. 490. Bnt this is now altered in Massachusetts by statute, Pub. Stat. 1881, c. 11, §§ 14-16 ; and the mortgagee's interest, if definite, is separately assessed. 2 Jackson v. Mass. Ins. Co., 23 Pick. 418 ; Conover v. Mat. Ins. Co., 3 Denio, 254; Rice v. Tower, 1 Gray, 426 ; Pollard v. Somerset Ins. Co., 42 Me. 221; Smith V. Monmouth Ins. Co., 50 Me. 96 ; Comm. Ins. Co. v. Spankneble, 52 111. 53 ; Judge v. Conn. F. I. Co. , 132 Mass. 521. In Shepherd v. Union I. Co., 38 N. H. 232, even a proviso against "alienation by mortgage" was held only to apply to a mortgage when foreclosed. See also Harral v. Leverty, 50 Conn. 46, and cases cited. 3 Lovering v. Fogg, 18 Pick. 540. * Den V. Dimon, 10 N. J. 156 ; Ellison v. Daniels, 11 N. H. 274 ; Savage v, Dooley, 28 Conn. 411 ; Brown v. Snell, 6 Fla. 741. The contrary was held after forfeiture by mortgagor in Meyer v. Campbell, 12 Mo. 603, the mortgagee there being regarded as seised of the legal estate. 5 Ballard v. Ballard Vale Co., 5 Gray, 468. 6 Colton V. Smith, 11 Pick. 311. VOL. II. — 10 146 MORTGAGES. extends to a grantee of the mortgagor, and includes rents accruing after the commencement of process to obtain posses- sion.^ If the mortgagee suffer the mortgagor to retain pos- session, and he commit acts which tend to deteriorate the premises, and then sell to a stranger, the latter will not be accountable for any part of the debt beyond what the premises may be sold for by order of the court. On the other hand, if the mortgagor or one standing in his place enhance the value of the premises by improvements, these become additional security for the debt, and he can only claim the surplus, if any, upon such sale being made, after satisfying the debt;^ and cannot, in a suit by the mortgagee for possession, claim any abatement on account of these; the only way in which he can avail himself of them is by redeeming the estate. ^ So if the mortgagor plant trees for nursery purposes, they become a part of the mortgaged estate, though intended for sale in market, and belong to the mortgagee, nor has the mortgagor a right to remove them.* And where one partner owned land, and the partnership erected fixtures upon it while it was under mortgage by the owner, it was held that the mortgage attached •to the fixtures as a part of the realty, and held them.^ § 1099. Curtesy and Dower. — Among the incidents of a mortgagor's estate are those of curtesy and of dower. Where the estate has been sold and turned into money to satisfy the mortgage-debt, equity gives dower out of the surplus.^ § 1100. Of Disseisin affecting Mortgagee. — So far as the entire inheritance of the estate is concerned, there is but one title, and this is shared between the mortgagor and mort- gagee, their respective parts when united constituting one 1 Coote, Mortg. 325 ; Fitchburg Co. v. Melvin, 15 Mass. 268 ; Gibson v. Far- ley, 16 Mass. 280 ; Boston Bk. v. Reed, 8 Pick. 459 ; Wilder v. Houghton, 1 Pick. 87 ; Mayo v. Fletcher, 14 Pick. 525 ; Clarke v. Curtis, 1 Gratt. 289 ; Hughes v. Edwards, 9 Wheat. 489 ; Syracuse Bk. v. Tallman, 31 Barb. 201 ; Whitney v. Allen, 21 Cal. 233 ; Walker v. King, 44 Vt. 601. 2 Hughes V. Edwards, 9 Wheat. 489, 500. 3 Haven v. Adams, 8 Allen, 363 ; Same v. Bost. & W. R. R., id. 369. 4 Maples V. Millon, 31 Conn. 598. ^ Lynde v. Rowe, 12 Allen, 100 ; Phila., etc. R. R. v. Woelpper, 64 Penn. St. 366, 372. s Titus V. Neilson, 5 Johns. Ch. 452 ; Matthews v. Durjee, 45 Barb. 69 ; ante, §§ 377, 479, 481. OF THE mortgagor's INTEREST, 1-17 title. The mortgagor's possession is so far that of the mort- gagee that he cannot disseise him. But in Mississippi the courts hold, upon the question of limitations, that, from the time of forfeiture of the mortgagor's estate by a breach of condition, his possession is, as to the mortgagee, adverse, and the statute begins to run from that date.^ He cannot make any lease or conveyance which can bind the mortgagee or prejudice his title.^ If the mortgagor in possession is dis- seised by a stranger, the mortgagee thereby loses his seisin."^ So if the mortgagee is disseised, he cannot convey his inter- est in the estate.* And if one of two tenants in common mortgage his share to his co-tenant, he cannot have partition against him, since in respect to his co-tenant he has not suffi- cient seisin to maintain partition against his own mortgagee.^ The distinction is this : Between the mortgagor and mort- gagee, so long as the latter does not treat the former as a trespasser, the possession of the mortgagor is not hostile to or inconsistent with the mortgagee's right. The possession of the mortgagor is, to this extent, the possession of the mort- gagee.^ But neither the mortgagor nor purchaser of his right 1 Wilkinson v. Flowers, 37 Miss. 579, 585. So Jamison v. Perry, 33 Iowa, 14. But the generally prevailing rule is otherwise, and re(|uires some distinct assertion of a hostile title. Rockwell v. Servant, 63 111. 424 ; Martin v. Jackson, 27 Penu. St. 504 ; Parker v. Banks, 79 N. C. 480. 2 Birch V. Wright, 1 T. R, 383 ; Cholmondeley v. Clinton, 2 Meriv. 171, 360 ; s. c. 2 Jac. & W. 177; Noyes v. Sturdi\rant, 18 Me. 104; Gould v. Newman, 6 Mass. 239; Perkins y. Pitts, 11 Mass. 125; Hicks y. Brighara, id. 300; Colton r. Smith, 11 Pick. 311; Dexter u. Arnold, 2 Sumn. 108; Newman v. Chapman, 2 Rand. 93. 8 Poignand v. Smith, 8 Pick. 272. * Dadmun v. Lamson, 9 Allen, 85. See Lincoln v. Emerson, 108 Mass. 87. 5 Bradley v. Fuller, 23 Pick. 1. But if he mortgage it to a stranger, and then make partition with his co-tenant by mutual releases, in which the mortgagee joins, it throws the entire mortgage upon the share of the mortgagor, and relieves the other share. Torrey v. Cook, 116 Mass. 163. On the other hand, a mort- gagee in possession of undivided land before foreclosvire would not be liable to a process of partition in favor of a mortgagor who owns, or is in possession of, the other undivided share of the estate, because the mortgage does not give an absolute title. Norcrosa v. Norcross, 105 Mass. 265. 6 Doe V. Barton, 11 Ad. & E. 307 ; Partridge v. Bere, 5 B. & A. 604; Joyner V. Vincent, 4 Dev. & B. 512; Smartle v. Williams, 1 Salk. 245; Hunt v. Hunt, 14 Pick. 374 ; Root v. Bancroft, 10 Met. 44; Nichols v. Reynolds, 1 R. I. 30; Herbert v. Haurick, 16 Ala. 581 ; Newman v. Chapman, 2 Rand. 93 ; Boyd v. Beck, 29 Ala. 703. 148 MORTGAGES. under a sheriff's sale can maintain ejectment against the mortgagee in possession. All he can do is to redeem by paying the mortgage. Such purchaser may have ejectment against the mortgagor in possession. ^ The possession of the mortgagor is that of the mortgagee, so as to prevent a stranger setting up a title by possession against the mortgagee, so long as the mortgagor is seised. ^ § 1101. Mortgagor's Rights as against Mortgagee. — The mortgagee, by accepting a deed from his mortgagor, assents to and cannot deny the mortgagor's title. ^ If one enters into possession as mortgagee under his mortgage, he will not be admitted to deny the title of his mortgagor, and any releases which he may obtain from others will go to strengthen his mortgagor's title.* But yet their rights, even in the matter of possession of the premises, are so independent and dis- tinct, that if either, while in possession, or any one claiming under him, commits waste by acts which essentially impair the value of the inheritance, the other may restrain him from so doing by an injunction through a court of chancery.^ And as an illustration of the distinct interests which a mortgagor and mortgagee may have, even in an incident of the mort- gaged estate, it is held, that either may avail himself of a covenant of warranty made to the mortgagor, or the one under whom he claims, as the same runs with the land, and avails whichever of the parties has occasion to resort to it.^ But if the mortgagee be in possession, the mortgagor cannot sustain 1 Doe V. Tunnell, 1 Honst. 320. 2 Sheafe v. Gerry, 18 N. H. 245. 8 Brown v. Combs, 29 N. J. 36, 42. * Farmers' Bk. v. Brouson, 14 Mich. 361. 5 Wms. Real Prop. 355, note ; 2 Crabb, Real Prop. 862 ; id. 874 ; Fay v. Brewer, 3 Pick. 203 ; Smith v. Moore, 11 N. H. 55 ; Irwin v. Davidson, 3 Ired. E(|. 311 ; Brady v. Waldron, 2 Johns. Ch. 148; Cooper v. Davis, 15 Conn. 556 ; Givens v. M'Cahnont, 4 Watts, 460. ^ White V. Whitney, 3 Met. 81. It is, however, otherwise hehi in England and Kentucky, and that the legal estate is so far in the mortgagee as to attach to it exclusively the covenants which run with the laud. Rawle, Gov. 360-362 ; Carlisle v. Blamire, 8 East, 487 ; Pargeter v. Harris, 7 Q. B. 708 ; McGoodwin v. Stephenson, 11 B. Mou. 21. In New Hampshire, a second mortgagee was held entitled to rent of the mortgaged premises accruing from a lessee after entry made, although there was an outstanding mortgage prior to his. Cavis v. McClary, 5 N. H. 529. OF THE mortgagor's INTEREST. 149 trespass against a stranger for entering and going across the premises, if he do no permanent injury to the soil and freehold.^ § 1102. Mortgagor's Duty to protect the Estate. — Still there is the relation of tenure between the mortgagor and mort- gagee, as the former holds of the latter; and the doctrine which forbids any one to controvert the title under whicli he holds an estate will not admit the former to dispute the title of the latter. Nor may he defeat a solemn deed whereby he has created the mortgagee's title ; and, consequently, he will not be admitted to set up a title in a third person, such as a lease made prior to the mortgage, in an action by the mort- gagee to enforce his mortgage. ^ And his grantee is in like manner estopped by the recital of the mortgage in his deed.^ Nor can the mortgagor, or his grantee or subsequent mortgagee, buy in a tax title and set it up against the mortgagee.* A mortgagee, however, may purchase in an outstanding prior judgment title, and hold under it as being paramount to his mortgage title,^ and he may buy a tax title, provided he is out of possession or is otherwise under no obligation to pay the tax.^ § 1103. What are the Rights and Remedies of a Mortgagor, upon paying the Mortgage-debt, to recover possession of the mortgaged premises from the mortgagee, who has previously entered for condition broken, were considered while discuss- ing the rights of mortgagees.'^ It is sufficient here to say, that in many States his remedy is only in equity. He could not sue the mortgagee at common law to recover possession.^ 1 Sparhawk v. Bagg, 16 Gray, 583. 2 2 Crabb, Real Prop. 861 ; Miami Ex. Co. v. U. S. Bk., etc., Wright (Ohio), 249 ; Doe v. Pegge, 1 T. R. 758, n. ; Hall v. Surtees, 5 B. & A. 687 ; Clark v. Baker, 14 Cal. 612 ; Conner v. Whitmore, 52 Me. 185. 8 Johnson v. Thompson, 129 Mass. 398. * Woodbury v. Swan, 59 N. H. 22 ; Kezer v. Clifford, id. 208 ; Dayton v. Rice, 47 Iowa, 429 ; Fuller v. Hodgdon, 25 Me. 243 ; Smith t;. Lewis, 20 Wis. 350 ; Midd. Sav. Bk. V. Bacharach, 46 Conn. 513 ; Jordan v. Sayre, 29 Fla. 100 ; s. r. 10 So. Rep. 823 ; Gorton v. Paine, 18 Fla. 117. 6 Walthall V. Rives, 34 Ala. 91 ; Wright v. Sperry, 25 Wis. 617 ; Harrison v. Roberts, 6 Fla. 711. 6 Spratt V. Price, 18 Fla. 289. 7 Ante, § 1061. 8 Coote, Mortg. 528 ; 4 Kent, Com. 163 ; Parsons v. Welles, 17 Mass. 419 ; 150 MORTGAGES. And the Supreme Court of the United States hold this to be the common law doctrine upon the subject; and one re'ason given for it as a rule is, that if the mortgagee have been in possession of the premises, and made improvements, he could not otherwise hold for such improvements if the mortgagor, by tendering the debt, could recover in ejectment. If he sues in equity to redeem his estate, he must do equity before he can obtain a decree for possession. ^ In other States, he is remitted to his legal rights as soon as he shall have paid the debt, and may recover possession in an action against his mortgagee. 2 § 1104. Equity of Redemption, how enforced, — This right which a mortgagor has to regain his estate discharged of any claim of the mortgagee, by performing the condition of the mortgage after the time fixed by the terms of his deed, is commonly called his equity of redemption. The remedy by which he enforces this right, in the former class of States, is by a bill in equity alone, and not by a suit at law, even if the debt may have been paid;^ and if the mortgagee be in possession, after breach, the mortgagor, in some of the latter class of States, also is driven to a process in equity to regain it, although the mortgage may have been satisfied.* § 1105. Constitutional Law. — It is competent for the legis- lature to extend the right of redemption on the sale of mort- gaged premises beyond the limit existing at the time the contract was made. But a law prohibiting the cyeditor from selling at all, or from obtaining possession, in any manner, of the premises upon which he holds a mortgage lien, would be void, as being unconstitutional.^ § 1106. Effect of Performance of the Condition. — When, however, the mortgagor has performed the condition of his Howe V. Lewis, 14 Pick. 329 ; Wilson v. Ring, 40 Me. 116 ; N. E. Jeweky Co. V. Merriam, 2 Allen, 390. See, however, Baker v. Gavitt, 128 Mass. 93. ^ Brobst V. Brock, 10 Wall. 519, 536, a case arising in Pennsylvania. 2 Jackson i\ Davis, 18 Johns. 7 ; Jackson v. Crafts, id. 110 ; Dean v. Spin- ning, 6 N. J. 466 ; Morgan v. Davis, 2 Har. & McH. 9 ; Holt v. Eees, 44 HI. 30 ; ante, § 1046. 8 Pearce v. Savage, 45 Me. 90 ; Pratt v. Skolfield, id. 386 ; Kenyon v. Shreck, 52 HI. 382. * Stewart v. Crosby, 50 Me. 130, 133 ; Dyer v. Toothaker, 51 Me. 380. 5 Tillotaon v. Millard, 7 Minn. 513, 521. OF THE mortgagor's interest. 151 mortgage, he has no occasion, in England or in this country, to resort to equity. By such performance the estate of the mortgagee is at once defeated ; and if he is in possession of the premises, the mortgagor may have ejectment against him to recover the same. ^ And a tender of performance before condition broken has the same effect in defeating the estate of the mortgagee as performance itself would have had.^ § 1107. Effect of Tender after Condition broken. — What would be the effect of a tender after condition broken has been variously held by different courts. It was early held in New York, that it would discharge the mortgage lien; and this was followed in New Hampshire. The question came up in several forms in New York afterwards, and it was held not to be a discharge. But in the latest case cited below, the question is revised and finally settled in favor of its operat- ing to discharge the lien.^ Such is the case in Michigan, and a tender of the debt due, at any time before foreclosure, discharges the lien on the land, though it does not satisfj the debt, and a tender of United States legal-tender notes was held sufficient.^ [But the law is generally in the United States, that w^hile a tender after default stops the running of interest, it does not destroy the lien of the mortgage.^] And in California, a mortgagor may have a suit to redeem the premises before as well as after payment of the debt, although a mortgage carries with it no right to divest the mortgagor of ^ 2 Cruise, Dig. 91, note ; Erskine v. Townsend, 2 Mass. 493 ; Nugent v. Kiley, 1 Met. 117; Holman v. Bailey, 3 Met. 55; Richard.son v. Cambridge, 2 Allen, 118 ; Merrill v. Chase, 3 Allen, 339 ; ante, § 1091. 2 Darling v. Chapman, 14 Mass. 101 ; Post v. Arnot, 2 Denio, 344 ; Merritt v. Lambert, 7 Paige, 344 ; Shields v. Lozear, 34 N. J. 496. 3 Jackson v. Crafts, 18 Johns. 110 ; Wilhird v. Hnrvey, 5 N. H. 252 ; Post v. Arnot, 2 Denio, 344, overruling the same case, 6 Hill, 65 ; Kortright v. Cady, 23 Barb. 490 ; s. c. 21 N. Y. 343, overruling the case in Barbour. See also Farmers' F. I. Co. V. Edwards, 26 Wend. 541 ; Hartley v. Tatham, 2 Abb. App. Dec. 333; Trimm v. Marsh, 54 N. Y. 599; Nelson v. Loder, 132 N. Y. 288; s. c. 30 N. E. Rep. 369. * Caruthers v. Humphrey, 12 Mich. 270 ; Moynahan v. Moore, 9 Mich. 9 ; Van Husan v. Kanouse, 13 Mich. 303. 6 Shields v. Lozier, 34 N. J. L. 496 ; Grain v. McGoon, 86 111. 431 ; Matthews V. Lindsay, 20 Fla. 962 ; Parker i-. Beasley, 116 N. C. 1 ; s. c. 21 S. E. Rep. 955 ; Rowell V. Mitchell, 68 Me. 21 ; Hudson Bros. Com. Co. r. Glenooe S. & G. Co., 140 Mo. 103 ; s. c. 41 S. W. Rep, 450; Perre v. Castro, 14 Cal. 519. 152 MORTGAGES. the possession until foreclosure.^ But where, as is often the case in England, the deed requires the mortgagee to reconvey upon the condition being performed, a mere performance will not, ^jcr se, defeat the mortgagee's estate. ^ § 1108. Who may redeem. — As to the question who may exercise this right of redemption, it seems to belong to every person who is interested in the mortgaged estate, or any part of it, having a legal estate therein, or a legal or equitable lien thereon, provided he comes in as privy in estate with the mortgagor. But without this privity, no one can exer- cise the right. ^ But where a second mortgagee has mort- gaged his mortgage, he may, at any time before his own mortgage is foreclosed, redeem from the prior mortgage upon the estate.^ One holding a bond only, for the conveyance of an equity of redemption, cannot maintain a bill to redeem, nor can any one who has not a legal title. ^ Among those who may redeem are heirs, devisees, executors, administra- tors, and assignees of the mortgagor,^ subsequent incum- brancers,'^ as, for instance, the mortgagee of a reversion as 1 Daiibenspeck v. Piatt, 22 Cal. 330, 335. 2 2 Cruise, Dig. 91. 3 4 Kent, Com. 167 ; Gibson v. Crehore, 5 Pick. 146 ; 2 Crabb, Real Prop. 903 ; Story, Eq. Jur. § 1023 ; Grant v. Duane, 9 Johns. 591 ; Moore v. Beasom, 44 N. H. 215 ; Gage v. Brewster, 31 N. Y. 218, 222. * Manning v. Markel, 19 Iowa, 103. 5 Grant v. Duane, 9 Johns. '591 ; McDougald v. Capron, 7 Gray, 278. The latter case turned on a statute ; and see Lowry v. Tew, 8 Barb. Ch. 407, contra. And a cestui que trust may, if the trustee refuses. Fray v. Drew, 11 Jur. N. s. 130. As to who stands in the relation of privity in estate with a mortgagor, see Packer V. Eoch. R. R., 17 N. Y. 283. See Downer v. Wilson, 33 Vt. 1. 6 Coote, Morg. 516, including assignees in bankruptcy; Sheldon v. Bird, 2 Root, 509 ; Craik v. Clark, 2 Hayw. 22 ; Merriam v. Barton, 14 Vt, 501 ; Bell V. The Mayor, 10 Paige, 49 ; Smith v. Manning, 9 Mass. 422. ^ Burnet v. Denniston, 5 Johns. Ch. 35 ; Watt v. Watt, 2 Barb. Ch. 371 ; Twombly v. Cassidy, 82 N. Y. 155 ; Cooper v. Martin, 1 Dana, 23 ; Brown v. Worcester Bk., 8 Met. 47 ; Thompson v. Chandler, 7 Me. 377 ; Allen v. Clark, 17 Pick. 47 ; Taylor v. Porter, 7 Mass. 355 ; Farnum v. Metcalf, 8 Cush. 46 ; Coote, Mortg. 517, 518 ; Bigelow v. Wilson, 1 Pick. 485 ; Goodman v. White, 26 Conn. 317. But query how far a third or fourth mortgagee can redeem from the first mortgagee without having first redeemed the intermediate mortgages. See Saunders v. Frost, 5 Pick. 259. And in some cases the subsequent incum- brancer has been restricted from redeeming unless the elder mortgage is being enforced. Frost v. Yonkers Sav. Bk., 70 N. Y. 553, 557; Bigelow v. Cassedy, 26 N. J. Eq. 557, 562. Special administrator. Libby v. Cobb, 76 Me. 471. OP THE mortgagor's INTEREST. lo3 against a prior mortgagee,^ judgment creditors, ^ tenants for years,^ a jointress,* dowress, and married woman by virtue of her inchoate right of dower in the mortgaged premises,^ and tenant by curtesy.^ But in order to a widow's redeeming from a mortgage of her husband, in which she joined, she must, if the mortgagee insists, offer to pay the entire mort- gage-debt.'^ One having an easement in the land may re- deem.^ So remaindermen, committees of lunatics, guardians of minors, and what are known as voluntary grantees under the statute of Elizabeth, although the mortgage may be good, pro tanto, against such conveyance.^ Nor can the mortgagee object that the mortgagor conveyed his equity of redemption to defraud creditors. ^° Where there is a trustee or a cestui que trust of an estate which is subject to a mortgage, the trustee is the proper party to redeem, and not the cestui que trust.^^ If a mortgagor die, pending a bill in equity to re- deem the estate, his heir may have a bill of revivor to renew and carry on the suit.^^ The owner of any interest or frac- tional part, however small, of the mortgaged premises, may redeem. But in order to do so, he is obliged to pay the 1 Smith V. Provin, 4 Allen, .516. 2 Hitt V. Holliday, 2 Lit. 332 ; Dabney v. Green, 4 Hen. & M. 101 ; Warner V. Everett, 7 B. Mon. 262 ; Elliot v. Patton, 4 Yerg. 10 ; Stonehewer v. Thomp- son, 2 Atk. 440 ; Calioon v. Laffan, 2 Cal. 595 ; Tucker v. White, 2 Dev. & B. Eq. 289 ; Brainard v. Cooper. 10 N. Y. 356. 3 Keech v. Hall, Doug. 21 ; Rand v. Cartwright, 1 Ch. Cas. 59 ; Loud v. Lane, 8 Met. 517 ; Bacon v. Bowdoin, 22 Pick. 401 ; Mass. Pub. Stat. 1S81, c. 181, § 21 ; Averill v. Taylor, 8 N. Y. 44. But whether the owner of a dwelling-house standing upon the land of another which is under mortgage can maintain a bill in equity to redeem the land, is left unsettled in Clary v. Owen, 15 Gray, 525. * Howard v. Harris, 1 Vern. 190 ; 2 White & Tud. Cas. 752. 6 Davis V. Wetherell, 13 Allen, 60 ; Newhall v. Lyun Sav. Bk., 101 Mass. 428, 431 ; Lamb v. Montague, 112 Mass. 352. 6 Palmes v. Danby, Prec. Ch. 137; Gibson v. Crehore, 5 Pick. 146; Eaton v. Simonds, 14 Pick. 98 ; 2 Crabb, Real Prop. 905 ; Rossiter v. Cossitt, 15 N. H. 38. 7 McCabe v. Bellows, 7 Gray, 148 ; McCabe v. Swap, 14 Allen, 188, 191 ; Lamb V. Montague, supra. 8 Bacon v. Bowdoin, 22 Pick. 401. 9 Coote, Mortg. 517, 518. 10 Bradley v. Snyder, 14 111. 263. 11 Dexter v. Arnold, 1 Sumn. 109. Aliter if the trustee refuses. Fray v. Drew, 11 Jur. N. s. 130. 12 Putnam i-. Putnam, 4 Pick. 139. 154 MORTGAGES. whole debt, since the mortgagee cannot be compelled to take his debt by instalments. And by such payment, as will be seen, the one who makes it becomes substituted in equity in place of the mortgagee, in respect to his lien upon the other parts of the estate.^ Such would be the case if a widow have a right of homestead subject to a mortgage, and she redeems by paying the whole debt.^ § 1109. Whole Debt must be paid. — And the proposition seems to be unqualified, that nothing short of paying the whole debt will work a redemption of a moi'tgaged estate, although the debt itself may be barred by the statute of limi- tations,^ or is the property of another than the holder of the mortgage,* or the land itself has been sold for less than the debt.^ But a tender of payment is as efTectual a bar to a foreclosure, if made in proper time, as an actual payment would be ; and a readiness and offer to pay, if the mortgagee declines to accept, is tantamount to a tender.^ § 1110. How far Purchaser of Equity of Redemption can im- peach Mortgage. — If one purchases or acquires by assignment an estate subject to a mortgage, or a right in equity to redeem from an existing mortgage, he will not be at liberty to set up usury in the mortgage-debt to defeat or diminish the claim of the mortgagee.' If one purchase an equity of redemption 1 Taylor v. Porter, 7 Mass. 355 ; Gibson v. Crehore, 5 Pick. 146 ; Chittenden V. Barney, 1 Vt. 28 ; Mullanphy v. Simpson, 4 Mo. 319 ; 2 Crabb, Real Prop. 911 ; Smith v. Kelley, 27 Me. 237 ; Powell, Mortg. 339, 340 ; Cholmondeley v. Clinton, 2 Jac. & AV. 134 ; Bell v. The Mayor, 10 Paige, 49, 71 ; Downer v. Wil- son, 33 Vt. 1 ; Fletcher v. Chase, 16 N. H. 38. See, as to dowress contributing to redeem, Mass. Pub. Stat. c. 124, § 5 ; Newton v. Cook, 4 Gray, 46 ; McCabe V. Bellows, 7 Gray, 148 ; Douglass v. Bishop, 27 Iowa, 214 ; McCabe v. Swap, 14 Allen, 188, 191. 2 Non-is V. Moulton, 34 N". H. 392; Lamb r. Montague, 112 Mass. 352. 8 Balch V. Onion, 4 Cush. 559 ; Pratt v. Huggins, 29 Barb. 277 ; Booker v. Anderson, 35 111. 66, 86. * Johnson v. Candage, 31 Me. 28. 5 Bradley v. Snyder, 14 111. 263 ; 2 Crabb, Eeal Prop. 911. 6 Walden v. Brown, 12 Gray, 102. ^ Shufelt V. Shufelt, 9 Page, 137, Green v. Kemp, 13 Mass. 515; Bridge v. Hubbard, 15 Mass. 103; Sands v. Church, 6 N. Y. 347; Berdan v. Sedgwick, 44 N. Y. 626 ; Dix v. Van Wick, 2 Hill, 522 ; Weed Sew. Mach. v. Emerson, 115 Mass. 554. It seems, however, that in New York, as usury avoids a contract, where usury is taken the estoppel shall only e.xtend to the amount actually paid. Payne v. Burnham, 62 N. Y. 69. But where there is no usury, the mortgagor or OP THE mortgagor's INTEREST. 155 at a sheriff's sale, he cannot deny the validity of the mort- gage subject to which he purchased ; for if there were no mortgage, there could be no equity. But if there are two or more mortgages, he may object that the second or others were void by being fraudulent as to creditors.^ iiut the jjurchaser of an equity of redemption cannot object that the mortgage was void because fraudulent against creditors; nor could he contradict the certificate of possession taken to foreclose, signed by the mortgagor and recorded.''^ And the rule as to the right of a purchaser of an estate under mortgage to set up objections to the mortgage, which the mortgagor himself might have done, seems to be this : If he purchases the right to redeem from such mortgage, he cannot set up a personal disability to make the mortgage, which the moi-tgagor himself might have done;^ nor that it was obtained by fraud ;^ nor that the mortgagee has not advanced to the mortgagor the full amount covered by the mortgage, if, when the sale was made, the full amount named in the mortgage was deducted from the price paid for the estate.^ But if one purchase an estate which is under mortgage, or take a second mortgage of the same, but does not undertake to pay the first mortgage, or take the estate subject to it, he may take advantage of usury in the first mortgage in the same way as the mortgagor himself miglit do.^ § 1111. Incidents of Right to redeem. — Where a mortgagee enters for non-payment of interest or an instalment of the debt, and the mortgagor seeks to redeem, but, before a decree for such redemption, the principal of the debt becomes due, he can only redeem by paying all that is due at the time of the rendition of the decree.'^ And where the mortgagee had his assignee is estopped as against the assignee of the mortgage to diminish the face of the claim. Giissler v. Powers, 81 N. Y. 57. 1 Russell V. Dudley, 3 Met. 147 ; Stobbins v. Miller, 12 Allen, 591 ; Gerrish V. Mace, 9 Gray, 235. 2 Taylor v. Dean, 7 Allen, 251 ; Russell v. Dudley, 3 Met. 147. 8 Comstock V. Smith, 26 Mich. 306. 4 Fairfield v. McArthur, 15 Gray, 726 ; Foster v. Wightman, 123 Mass. 100. ^ Freeman v. Auld, 44 N. Y. 50 ; and see Johnson v. Thompson, 129 Mass. 398 ; Grissler v. Powers, 81 N. Y. 57. 6 Berdan v. Sedgwick, 44 N. Y. 626, 631. 7 Adams v. Brown, 7 Cash. 220; Stewart v. Clark, 11 Met. 384. 156 MORTGAGES. entered under a conditional judgment in a suit to foreclose, the amount found due by such judgment was held conclusive upon any party who sought to redeem from his mortgage. i It is no bar to a mortgagor's right to redeem a part of a mort- gaged estate, that he has lost the right as to another part of it. 2 But no mortgagor can compel a redemption before the time fixed in the deed for performance of the condition. ^ A mortgage may, however, be made so that, upon the failure to pay any one of several instalments of a debt secured thereby, the mortgage may he enforced as to the whole debt, although not otherwise, in terms, due and payable. And in such case the mortgagor, in order to redeem, must pay the entire sum secured.* S 1112, Enforcing Mortgage for Larger Sum than then due. — But questions have arisen how far it is competent to enforce a mortgage for a larger sum than is due, in the first instance, if there be a failure to pay that sum at any specified time. If the sum to be paid upon such failure be inserted by way of penalty, the court would allow the mortgagor to redeem and relieve the estate from forfeiture. ° So if one make two or three successive mortgages of the same land, and, upon fail- ing to pay the first of these, he agree with the holder thereof to pay an extra sum as interest if he would delay the enforce- ment of the mortgage, it was held that as to such extra inter- est the first mortgage did not constitute a lien upon the land as against the subsequent mortgagees. ^ But a mortgage made to secure the payment of a debt in instalments, with a provi- sion, that, if any instalment shall be in arrear a certain num- ber of days, the whole debt shall be due and collectible, may be enforced for the whole amount of the debt, if such failure occur. ^ And the same would be the effect if, by the terms of a bond, secured by mortgage, and payable on time, it were to be paid in full if the interest therein reserved should not be 1 Sparhawk v. Wills, 5 Gray, 423 ; Freison v. Bates Coll., 128 Mass. 464, 2 Dexter v. Arnold, 1 Sumn. 109. 8 Coote, Mortg, 528. * Robinson v. Looniis, 51 Penn. St. 78. 6 Tiernan v. Hinman, 16 111. 400. 6 Burchard v. Fraser, 23 Mich. 224. T Spring V. Fi.ske, 21 N, J. Eq. 175. OF THE mortgagor's INTEREST. 157 paid when due.^ But the non-payment of such instalment is only to be taken advantage of by the mortgagee: the mort- gagor could not, by failing to pay the same, treat the debt as due, and, by tendering the whole debt, affect the lien of the mortgagee upon the estate. ^ § 1113. Contribution and Subrogation. — Where One of sev- eral persons interested in a mortgaged estate redeems it by paying the whole debt, he does not thereby relieve the other portions of the estate from the charge, but becomes an equita- ble assignee of the mortgage as to these parts, and may hold the same as mortgagee until the respective owners thereof shall contribute, pro rata, towards the mortgage-debt accord- ing to the value of their respective shares of the estate, com- pared with that of the entire estate.^ But where two tenants in common join in a mortgage of the common property to secure the debt of one of them, and then the other conveys his share to the mortgagee, it was held, that the one whose debt was secured must pay the whole debt to redeem his share of the estate, and would thereby relieve the other share.* Where the purchaser of an equity of redemption paid off the existing mortgages, he was subrogated to the rights of the mortgagees.^ Where, between a first and second mortgage, a judgment lien has been created upon the estate, and, upon foreclosure of the second mortgage, the purchaser pays the first mortgage, he has the right of the first mortgagee against the judgment creditor.^ And if, in order to save his estate, a second mortgagee pays the interest falling due upon a prior mortgage -debt, he acquires thereby a lien upon the mortgaged estate in the place of the mortgagee, to the extent of the in- terest thus paid, but he holds it subject to the prior lien of the mortgage-debt in favor of the mortgagee for all the excess 1 Harper u. Ely, 56 111. 179. 2 Hartley v. Tatham, 2 Abb. (N". Y.) 337, 339. 3 4 Kent, Com. 163 ; Story, Eq. .lur. § 1023 ; Gibson v. Crehore, 5 Pick. 146 ; Parkraan v. Welch, 19 Pick. 231 ; Salem v. Edgerly, 33 N. H. 46 ; Aiken v. Gale, 37 N. H. 501 ; Tovvie u. Hoit, 14 N.H. 61 ; Blue v. Blue, 38 111. 9 ; Penn. v. Rail- way Co., 20 Am. L. Reg. 576 ; Briscoe v. Power, 47 111. 447 ; Wheeler v. Willard, 44 Vt. 640. 4 Crafts V. Crafts, 13 Gray, 360. 6 Warren v. Warren, 30 Vt. 530 ; Walker v. King, 44 Vt. 601. Raymond v. Holborn, 23 Wis. 57. 158 MORTGAGES. above the interest.^ But, as will be more fully explained hereafter, this doctrine applies only between parties who stand, in respect to the estate, in cequali jure ; for if, for in- stance, a man purchases a part of an estate subject to the entire mortgage, he pays a price accordingly, and has obvi- ously no claim in equity upon any person to contribute towards it.^ Where a second mortgage was made to three persons, and in order to protect their estate it became neces- sary to redeem the prior mortgage, and two only of three were willing to do so, it was held, that by so doing they be- came equitable assignees of such mortgage against their co- mortgagee, and by a bill in equity they might compel him either to contribute towards redeeming the same, or convey his interest in the first mortgage to them.^ § 1114. Further of the Right to redeem. — Nor WOuld the purchaser of an equity of redemption sold upon execution be affected as to his right to redeem the estate by the circum- stance that the premises were, at the time of such sale, in the possession of a disseisor. The unlawful possession of the land does not affect an incorporeal hereditament existing in respect to it, like an equity of redemption.* So where a cred- itor to whom land of his debtor has been set off to satisfy an execution, had mortgaged it to a third person, and the origi- nal debtor obtained a reversal of the judgment which had thus been satisfied, it was held that he might, by a process in equity, compel the mortgagee in such mortgage to discharge the same.^ Where a mortgagor or assignee redeems, he re- gains his estate just as it existed when he made the mortgage; the operation of the mortgage is defeated by force of the con- dition ; he takes the estate with all the incidents and benefits, and subject to the servitudes, to which it was subject when the mortgage was made; and no lease, charge, or incum- brance made by the mortgagee can be set up against the claims of the mortgagor. The estate is restored unchanged. ^ Where there are several parties before the court, each claim- 1 Penii V. Railway Co., 20 Am. L. Reg. ^1%. 2 Gill V. Lyon, 1 Johns. Ch. 447; Clowes v. Dickenson, 5 Johns. Ch. 235 ; Porter V. Seabor, 2 Root, 146 ; Allen v. Clark, 17 Pick. 47. 3 Saunders v. Frost, 5 Pick. 259. * Thompson v. Chandler, 7 Me. 377. 6 Delano v. Wilde, 11 Gray, 17. « Ritger v. Parker, 8 Cush. 145, 149. OF THE mortgagor's INTEREST. 159 ing the right to redeem the mortgaged estate, the court will decree the redemption according to the priority of the claims of the several parties; namely, the second to redeem the first, the third the second, and so on.^ And where two estates are included in the same mortgage, and tlie equities in these de- volve upon different persons, if either wishes to redeem, he should make the holder of the other equity a party to the bilL^ And in England, where a mortgagor has given two separate mortgages of two distinct estates to the same mort- gagee to secure two distinct debts, equity will not admit of his redeeming one of these without redeeming both.^ But such is not the law in this country; each mortgage has its own equity of redemption, unaffected by the equity of any other mortgage.* If the mortgagor die before redeeming the estate, his heir or assignee becomes the only party who can maintain a process for redemption;^ and all the heirs should be before the court. ^ § 1115. Parties to Redemption Proceedings. — All persons interested in the mortgage, whether as holders, trustees, or otherwise, should be made defendants in a bill to redeem." Thus a mortgagee who has pledged his mortgage must be made a party as well as his pledgee.^ Thus where the widow of the mortgagor brought a bill to redeem the mortgage, she properly made the owner of the husband's equity a party, since he was interested in the mortgagee's account, for upon her redeeming she became substituted to the place of the mortgagee as against the holder of the husband's equity, with a right to be reimbursed all that she had paid to redeem but her own share of the mortgage-debt.^ So should purchasers ^ Coote, Mortg. 526 ; Arcedechne v. Bowes, 3 Meiiv. 216, n. 2 Coote, Mortg. 527 ; Cholmondeley v. Clinton, 2 Jac. & W. 134. 3 Pope V. Onslow, 2 Vern. 286. * Bridgen v. Carhartt, Hopk. Ch. 234 ; Milliken v. Bailey, 61 Me. 316. 6 Barker v. Wood, 9 Mass. 419 ; Smith v. Manning, id. 422 ; Elliot v. Patton, 4 Yerg. 10 ; Shaw v. Hoadley, 8 Blackf. 165. 6 1 Daniell, Ch. Prac. 240, 264, Perkins' ed. and n. ; Wolcott v. Sullivan, 6 Paige, 117. But the heirs of the mortgagor need not be made parties to a bill to foreclose a mortgage, by statute in Illinois. Rockwell v. Jones, 21 111. 279. 7 1 Daniell, Ch. Prac. 306, 307; Fisher, Mortg. 187 et scq. * Brown v. Johnson, 53 Me. 246. « McCabe v. Bellows, 1 Allen, 269 ; Passumpsic Bk. v. Weeks, 59 N. H. 239. IGO MORTGAGES. from a mortgagee in possession for condition broken ;i though, if a mortgagee shall have assigned his whole interest, he need not be made a party, ^ unless interested in the question of the amount for which the estate is to be held.^ § 1116. A Bill to redeem must make a Tender of the amount due and an offer to pay it ; ^ but, in Massachusetts, without a previous tender of the debt. If, however, the mortgagee have done nothing to prevent the mortgagor performing the condi- tion, he will, in such a proceeding, be entitled to his costs. ^ But in Mississippi the mortgagor must make a tender of the mortgage-debt before he can maintain a bill to redeem.^ If neither in nor prior to the bill is there any offer to pay, the bill cannot be maintained.'^ § 1117. Redemption barred by Limitation. — A mortgagor may be barred of his right of redemption by limitation, where the possession of the premises has been adverse for twenty years, or a shorter period, conforming to the statute of limitation of the State where the land lies, as where the mortgagee has been in possession during that time without recognizing that he held under his mortgage. In such a case, the law presumes the equity to be extinguished. But no length of time of holding possession by a mortgagee will bar the right of redemption, if the mortgage is treated during that time as a subsisting security for the debt;^ and the same would be the result if the mortgagee had entered under an agreement to keep possession till his debt should be paid out of the profits of the estate.^ So a possession for the requisite 1 Wing V. Davis, 7 Me. 31. 2 Wolcott V. Sullivan, 1 Edw. Ch. 399. 3 Doody V. Pierce, 9 Allen, 141. * Kemp V. Mitchell, 36 Ind. 249 ; Perry v. Carr, 41 N. H. 371 ; Crews v. Threadgill, 35 Ala. 334. 5 Miller v. Lincoln, 6 Gray, 556 ; and see cases in preceding note. For the subject of costs in such cases see Brown v. Simons, 45 N. H. 211. « Hooyjes v. Bailey, 28 Miss. 328. 7 Allerton v. Belden, 49 N. Y. 373. 8 Dexter v. Arnold, 1 Sumn. 109 ; Ayres v. Waite, 10 Cush. 72 ; Chicle v. Rol- lins, 44 Me. 104, 116 ; Story, Eq. § 1028 ; Tripe v. Marcy, 39 N. H. 439 ; McNair V. Lot, 34 Mo. 285. ^ Marks v. Pell, 1 Johns. Ch. 594. Upon the general question when a mort- gagor's right in equity is barred by limitations, see Hurd v. Coleman, 42 Me. 182 ; Blethen v. Dwinal, 35 Me. 556 ; Robinson v. Fife, 3 Ohio St. 551 ; Jarvis v. Wood- OF THE mortgagor's INTEREST. 161 period of limitation, under a de facto foreclosure, will bar the redemption, though the proceedings in effecting such foreclos- ure were irregular, unless the mortgagor accounts for the delay in a manner to do away the presumptions of law.^ Nothing short of an actual possession by the mortgagee will avail him in such case in the way of a bar to the mortgagor's right of redemption.^ Nor will any length of possession bar the mortgagor's right where the mortgagee enters before con- dition broken, and holds over, without notice that he does so for the purpose of foreclosure. ^ But if the mortgagor permits the mortgagee to hold the possession for twenty years without any demand to account, and without any admission on his part by word or act that the mortgage is open to redemption, the title of the mortgagee becomes absolute.* And where the grantor, in an absolute deed, held an agreement from the grantee authorizing him to redeem the estate when he should find it convenient, but fixing no time, it was held that no length of possession by the mortgagee would bar the mort- gagor's right of redemption.^ Upon the point of what shall be a recognition by the mortgagee of the mortgagor's rights, so as to rebut the inference to be derived from the unex- plained holding of possession by such mortgagee, it has been held, that commencing proceedings to foreclose his mortgage rebuts the presumption of a release by the mortgagor of his right. ^ So any acts recognizing an existing right of redemp- tion, such as stating an account of the profits of the estate in which it is treated as subject to be redeemed, although not ruff, 22 Conn. 548 ; Morgan v. Morgan, 10 Ga. 297; Elmendorf f. Taylor, 10 Wheat. 152 ; Hughes v. Edwards, 9 Wheat. 489 ; Cholniondeley v. Clinton, 2 Jac. & W. 191 ; Gordon v. Hobart, 2 Sumn. 401 ; Cromwell v. Pittsb. Bk., 2 Wall. Jr. 569 ; Wells V. Morse, 11 Vt. 1 ; Watt v. Wright, 66 Cal. 202. 1 Slicer v. Pittsburg Bk., 16 How. 571. 2 Bollinger i-. Chouteau, 20 Mo. 89 ; Moore v. Cable, 1 Johns. Ch. 385. 8 Goodwin V. Richardson, 11 Mass. 469 ; Newall i;. Wright, 3 Mass. 138 ; Scott V. McFarland, 13 Mass. 308. * Roberts v. Littlefield, 48 Me. 61 ; Chick v. Rollins, 44 Me. 104 ; Story's Eq. § 1028 a. Thus where the mortgagee of the mortgagee foreclosed the first mort- gage and retained possession for over twenty years, it was held a bar to redemption of the second. Stevens v. Dedham Sav. Inst., 129 Mass. 547. See Knowlton v. Walker, 13 Wis. 264. 6 Wyman u. Babcock, 2 Curtis (C. C), 386. 6 Calkins v. Calkins, 3 Barb. 305. VOL. II. — 11 162 MORTGAGES. done with the mortgagor or his heirs, ^ and a verbal recogni- tion will be sufficient, 2 § 1118. When Payment presumed from Lapse of Time. — On the other hand, there are presumptions in favor of the mort- gagor, arising from long-continued possession by him of the mortgaged premises, without paying rent or interest, or ad- mitting the existence of an outstanding mortgage-debt. If this is continued for twenty years after condition broken, it raises the presumption that the debt has been paid and the mortgage redeemed. And a bill for foreclosure on the part of the mortgagee would thereby ordinarily be barred.^ But it would seem that there must be something on the part of the mortgagor showing affirmatively that he does not hold in subordination to the mortgagee's title, in order to have the time of limitation begin to run.^ Any recognition by the then owner of the equity of redemption during that time, of the existence of the mortgage, would rebut the presumption of the mortgage being barred, even as to subsequent purchasers.^ Thus, if the mortgagor is not disturbed in his possession for twenty years after the debt secured by the mortgage is due, without being called upon to pay principal or interest, the claim is presumed to be barred. But this may be rebutted by a payment of interest or part of the principal in the mean 1 Morgan v. Morgan, 10 Ga. 297 ; Hansard v. Harvy, 18 Ves. 455 ; Fairfax v. Montague, cited 2 Ves. Jr. 84 ; Quint v. Little, 4 Me. 495 ; Coote, Mortg. 544. 2 Shepperd v. Murdock, 3 Murph. 218. 8 Story, Eq. Jur. § 1028 b ; Roberts v. Welch, 8 Ired. Eq. 287 ; Boyd v. Har- ris, 2 Md. Ch. Dec. 210 ; Evans v. Hoffman, 5 N. J. Eq, 354 ; Haskell v. Bailey, 22 Conn. 569 ; Elkins v. Edwards, 8 Ga. 325 ; Thayer v. Mann, 19 Pick. 535 ; Richmond v. Aiken, 26 Vt. 324 ; Belmont v. O'Brien, 12 N. Y. 394 ; Hughes v. Edwards, 9 Wheat. 489 ; Trash v. White, 3 Bro. C. C. 291 ; Blethen v. Dwinal, 35 Me. 556 ; Inches v. Leonard, 12 Mass. 379 ; Giles v. Baremore, 5 Johns. Ch. 545 ; Wms. Real Prop. 374, Am. ed. note ; Nevitt v. Bacon, 32 Miss. 212, 226 ; Harris v. Mills, 28 HI. 44 ; Chick v. Rollins, 44 Me. 104 ; Tripe v. Marcy, 39 N. H. 439 ; Bacon v. Mclntire, 8 Met, 87 ; Blue v. Everett, 55 N. J. Eq. 329 ; s. c. 36 Atl. Rep. 960 ; Staples v. Staples, 20 R. L 264 ; s. c. 38 Atl. Rep. 498 ; ante, §§ 1098, 1099. * Boyd V. Beck, 29 Ala. 703; 2 Greenl. Cruise, 114, n. ; ante, §§ 1098, 1099. 5 Heyer v. Pniyn, 7 Paige, 465 ; Hughes v. Edwards, 9 Wheat, 489 ; Wright V. Eaves, 10 Rich, Eq. 682 ; Drayton v. Marshall, Rice, Eq. 373, 383 ; Moore t;. Clark, 40 N. J. E(i. 152. OP THE mortgagor's INTEREST. 163 time.^ And such holding is, at best, only presumptive evi- dence of the debt being satisfied. ^ But the mortgagor may give to his possession an adverse character by some unequivo- cal act hostile to the title of the mortgagee, and brought dis- tinctly home to his knowledge; such act, however, must be a clear, open, explicit denial of the mortgagee's title, and a refusal to hold under it, brought home to the knowledge of the mortgagee. And until then, the statute of limitations does not begin to run.^ In North Carolina, payment is pre- sumed in case of a mortgage after ten years from the time of the last payment.^ In Mississippi, the mortgagee's remedy in equity to enforce a mortgage is governed by the same rules of limitation as apply to actions at law to recover the debt itself;^ while by the statute 7 Wm. IV. and 1 Vict. c. 28, a mortgagee may enter or bring a suit in equity upon a mort- gage at any time within twenty years after the last payment of the principal or the interest, and mortgages are presumed to be satisfied at the end of twenty years after interest paid or acknowledgment made.^ The line of distinction between these two classes of decisions, it will be perceived, is this : In the one, the courts apply to the mortgage the same period of limitation which they do to the debt intended to be thereby secured ; in the other, they adopt the same rule as to the limi- tation of a mortgagee's claim under his mortgage as they do to an ordinary claim to lands where there has been an adverse possession. Among the courts which adopt the first rule are those of California, Iowa, Texas, where a new promise to pay the debt revives the mortgage lien.' In Illinois, also, a mort- 1 Howard v. Hildreth, 18 X. H. 105 ; Ballou v. Taylor, 14 R. I. 277. See also Trustees Alms House Farm v. Smith, 52 Conn. 434. 2 Cheevery. Perley, 11 Allen, 584. 8 Tripe v. Marcy, 39 N. H. 439 ; Noyes v. Sturdivant, 18 Me. 104; Zelleri-. Eckert, 4 How. 289, 295 ; Bacon v. Mclntire, 8 Met. 87 ; Hall v. Sartees, 5 B. & A. 687. * If there are several notes, the statute runs from the maturity of the last. Parker v. Banks, 79 N. C. 480. * Aunot. Code 1892, § 4733. And the same rule is adopted in Kansas. Chick V. Willetts, 2 Kan. 384. 6 Wms. Real Prop. 373, 374. ^ Lord V. Morris, 18 Cal. 482 ; Perkins v. Sterae, 23 Tex. 561 ; Ross v. Mitchell, 28 Tex. 150 ; Gower v. Winchester, 33 Iowa, 303 ; Clinton Co. v. Co.x, 37 Iowa, 570 ; Grattan v. Wiggins, 23 Cal. 16, 34 ; Cunningham v. Hawkins, 24 Cal. 164 MORTGAGES. gage cannot be enforced by ejectment or bill of foreclosure after the debt has been barred by the statute of limitations, on the ground that the debt is the principal thing, ^ A holder under a second mortgage may, after the same has been fore- closed, avail himself of the statute of limitations against the first mortgagee. 2 But the other rule is by far the most gen- erally adopted.^ The purchaser of a mortgagor has the same right to avail himself of the bar of the statute of limitations as the mortgagor himself would have had.^ But in all the courts, the time from which the period of limitation is reck- oned is the breach of the condition of the mortgage.^ And, in respect to this, questions have sometimes arisen, especially in respect to mortgages given for indemnity to sureties of the mortgagor as to what is to be regarded as such breach. And it seems now to be settled, that the statute begins to run from the time the party indemnified actually pays the money, and not from the time when he becomes liable to pay it.^ A statute foreclosure, obtained after the expiration of twenty years, rebuts the presumption of payment arising from the lapse of time,'^ and evidence for the same purpose was allowed, showing the mortgagor to have been a near relative of the mortgagee, and embarrassed in his circumstances.^ § 1119. Mortgage survives Changes in Form of Debt. — Where a mortgage is once made to secure the payment of a 403. So in Nebraska and Nevada. Peters v. Dunnells, 5 Neb. 460 ; Henry v. Confidence Co., 1 Nev. 619. 1 Medley v. Elliott, 62 111. 532 ; Pollock v. Maison, 41 111. 516 ; Hams v. Mills, 28 111. 44. Though it is otherwise if the mortgage contained a covenant under seal to pay. Ibid. 2 Coster V. Brown, 23 Cal. 142. 3 Heyer v. Pruyn, 7 Paige, 465, 470, overruling Jackson v. Sackett, 7 Wend. 97 ; Wilkinson v. Flowers, 37 Miss. 579 ; Nevitt v. Bacon, 32 Miss. 212, 226; Pveed i-. Sheplej', 6 Vt. 602 ; Belknap v. Gleason, 11 Conn. 160 ; Fisher v. Mossman, 11 Ohio St. 42 ; Thayer v. Mann, 19 Pick. 535; Ozmun v. Eeynolds, 11 Minn. 459 ; Birnie v. Main, 29 Ark. 591 ; Wiswell v. Baxter, 20 Wis. 680 ; Ohio L. I. Co. V. Winn, 4 Md. Ch. Dec. 253 ; Ballon v. Taylor, 14 R. I. 277. < McCarthy v. White, 21 Cal. 495 ; Low v. Allen, 26 Cal. 141 ; Lent v. Shear, id. 361, 365 ; Caufman v. Sayre, 2 B. Mon. 202. ^ But see ante, % 1117. 6 Duncan v. McNeill, 31 Miss. 704 ; Powell v. Smith, 8 Johns. 249 ; Rodman V. Hedden, 10 Wend. 498. See post, § 1182. 7 Jackson v. Slater, 5 Wend. 295. 8 Wanmaker v. Van Baskirk, 1 N. J. Eq. 685. OF THE mortgagor's INTEREST. 165 debt, the lien attaches in favor of such debt, nor will any change of form of the indebtedness discharge it short of an actual payment, satisfaction, or release.^ The giving of a new note for the original one, thougli of a different date and for a different amount, and running to a different person, unless intended as a payment of the original note, will not affect the mortgage lien.^ So where the indorser of a note made a mortgage to the indorsee to secure the payment of it, and the indorsee failed to give the indorser the notice requi- site to charge him as indorser, it was held not to affect his security under his mortgage.^ But if the holder of a note secured by a mortgage fraudulently alter the same, it defeats his claim under the mortgage.* And if the mortgagee, in the execution of his power of sale under the mortgage, acts un- fairly, so that an insufficient price is obtained, or the pur- chaser at such a sale refuses to execute the deeds, the mortgage note will be treated as paid and the mortgage dis- charged. ^ Where, however, a mortgagor, having made a mortgage to secure a larger note, made a new note to the mortgagee, and agreed that it should be secured by the mort- gage, and if paid should be allowed towards and in payment of the larger note which remained unchanged, it was held that such agreement did not create any lien by means of the mortgage upon the premises. ^ But a bond of a different date, and of a less sum than that described in the mortgage, may be substituted for it, and thereby secured, and this may be 1 Shuey v. Latta, 90 Ind. 136. 2 Greeny. Hart, 1 Johns. 580; Heard v. Evans, 1 Freem. Ch. 79; Davis v. Maynard, 9 Mass. 242; Elliot u. Sleeper, 2 N. H. 525 ; Pomroy v. Rice, 16 Pick. 22 : Dana v. Binney, 7 Vt. 493; Watkins v. Hill, 8 Pick. 522; Fowler v. Bush, 21 Pick. 230 ; Williams v. Starr, 5 Wis. 534, 548 ; Dillon v. Byrne, 5 Cal. 455, 457 ; Barker v. Bell, 37 Ala. 354 ; Donald v. Hewitt, 33 Ala. 534 ; Chase v. Abbott, 20 Iowa, 154; Parkhurst v. Cnmmings, 56 Me. 155; Port v. Robbins, 35 Iowa, 208 ; Flower v. Elwood, 66 111. 438 ; Christian v. Newberry, 61 Mo. 446. 3 Mitchell V. Clark, 35 Vt. 104. * Vogle V. Ripper, 34 111. 100, 106. And if a mortgagee deceives one entitled to redeem as to the rate of interest, he shall be entitled only to the ordinary rate. May V. Gates, 137 Mass. 389. ^ Howard v. Ames, 3 Met. 308 ; Hood v. Adams, 124 Mass. 481 ; ante, §1011. 6 Grafton Bk. v. Foster, 11 Gray, 265; Howe v. Wilder, id. 267. 166 MORTGAGES. shown by parol. ^ So a renewed note attaches to it the inci- dental security which the original had.^ The mortgage se- cures the debt, not the specific note.^ Nor will the giving of a recognizance as a substitute for such note affect the security, nor the recovering of a judgment for the original debt, or a commitment of the debtor to jail thereon, and dis- charge from such imprisonment.* § 1120. "What will not discharge the Mortgage. — A dis- charge of the remedy for a debt by its being barred by the statute of limitations does not discharge the mortgage.^ Nor does a decree of discharge of the debtor, under an insolvent process, from the payment of a debt secured by a mortgage, discharge the mortgage lien;^ and even a voluntary release of a debtor from personal liability will not, it seems, dis- charge the mortgage, or relieve another joint-debtor from the 1 Baxter v. Mclntire, 13 Gray, 168 ; Melvin v. Fellows, 33 N. H. 401. See Hall V. Tay, 131 Mass. 192, 194, that it may be shown by whom the advances were made. So parol evidence is admissible to show the amount of the note to be less than the amount stated in the mortgage. Hampd. Mills v. Payson, 130 Mass. 88. And the mortgage may supply details which the note is silent upon, and wliich do not conflict with the note. Dobbins v. Parker, 46 Iowa, 357 ; Muzzy v. Knight, 8 Kan. 456. 2 Cleveland v. Martin, 2 Head, 128 ; Boswell v. Goodwin, 31 Conn. 74. See also Bank v. Rose, 1 Strobh. Eq. 257 ; Pond v. Clarke, 14 Conn. 334 ; Rogers u. Traders' Ins. Co., 6 Paige, 583. 3 Boxheimer v. Gunn, 24 Mich. 372. * Gary j;. Prentiss, 7 Mass. 63. See also, to the general proposition that pay- ment or release alone discharges a mortgage, Enston v. Friday, 2 Rich. 427 ; Dunshee v. Parmelee, 19 Vt. 172 ; McDonald v. McDonald, 16 Vt. 630 ; Smith V. Prince, 14 Conn. 472 ; Pond v. Clark, id. 334 ; Brinckerhoflf v. Lansing, 4 Johns. Ch. 65 ; M'Cormick v. Digby, 8 Blackf. 99 ; Hadlock v. Bulfinch, 31 Me. 246 ; N. H. Bk. V. Willard, 10 N. H. 210 ; CuUum v. Branch Bk., 23 Ala. 797 ; Boyd V. Beck, 29 Ala. 703 ; Ledyarde v. Chapin, 6 Ind. 320 ; Markell v. Eichelberger, 12 Md. 78 ; Seymour v. Darrow, 31 Vt. 122 ; Gault v. McGrath, 32 Penn. St. 392 ; Applegate v. Mason, 13 Ind. 75 ; Jordan v. Smith, 30 Iowa, 500 ; Hamilton t;. Quimby, 46 111. 90. 6 Thayer I). Mann, 19 Pick. 535 ; Miller v. Helm, 2 Sm. & M. 687 ; Bush v. Cooper, 26 Miss. 599 ; Bk. of Metropolis v. Guttschilk, 14 Pet. 19; Richmond v. Aiken, 25 Vt. 324 ; Pratt v. Huggins, 29 Barb. 277 ; Fisher v. Mossman, 11 Ohio St. 42 ; Joy r. Adams, 26 Me. 330 ; Elkins v. Edwards, 8 Ga. 325 ; Ball r. Wyeth, 8 Allen, 278 ; Browne v. Browne, 17 Fla. 607 : Taylor v. Hunt, 118 N. C. 168 ; s. c. 24 S. E. Rep. 359 ; Hedrick v. Byerly, 119 N. C. 420 ; s. c. 25 S. E. Rep. 1020 ; Irvine v. Shrum, 97 Tenn. 259 ; s. c. 36 S. W. Rep. 1089. Though this is held otherwise in a few States. Ante, § 1118. « Luning v. Brady, 10 Cal. 265. OF THE mortgagor's INTEREST. 167 covenant contained in his separate mortgage.^ A mortgage is not discharged by the mortgagor becoming executor ^ or administrator of the mortgagee.^ Nor would it be, though the mortgagor accepted a deposit to the amount of the debt,* unless he makes use of the same.^ If a mortgagor suffers the land to be sold for taxes, and purchases in the title himself, he still holds it subject to the mortgage,^ And the taking by the mortgagee of a new note and mortgage of the same land for the same debt does not discharge his prior mort- gage.^ After the payment of the mortgage-debt, the mortgage is functus officio; it cannot be revived by a parol agreement to keep it in force in order to secure another debt or liability.^ But where the mortgagee was induced by fraud to give up his note and mortgage to the mortgagor, and take a new note that was worthless, he was allowed to pursue his remedy upon his mortgage as being still valid. ^ And this against a pur- chaser from the mortgagor, who had paid up a second mort- gage made by the mortgagor under such circumstances as would have given the holder of that mortgage a preference over the first, the first mortgage still standing uncancelled on the record, of which the purchaser was bound to take 1 Donnelly v. Simonton, 13 Minn. 301 ; Tripp v. Vincent, 3 Barb. Ch. 613 ; Hayden v. Smith, 12 Met. 511 ; Bentley v. Vanderheyden, 35 N. Y. 677 ; Walls V. Baird, 91 Ind. 429. 2 Miller v. Donaldson, 17 Ohio, 264 ; Pettee v. Peppard, 120 Mass. 522. 3 Kinney v. Ensign, 18 Pick. 232 ; Hough v. De Forest, 13 Conn. 472. * Howe V. Lewis, 14 Pick. 329. 6 Toll V. Hiller, 11 Paige, 228. « Fr}'e t'. Illinois Bk., 11 111. 367. 7 Smith V. Stanley, 37 Me. 11 ; Boyd v. Beck, 29 Ala. 703 ; Cissna v. Haines, 18 Ind. 496. 8 Mead V. York, 6 N. Y. 449 ; Hunter v. Richardson, 1 Duv. 247 ; Brooks v. Ruff, 37 Ala. 371 ; Abbott v. Upton, 19 Pick. 434; Bowman v. Manter, 33 N. H. 530 ; Thomas' App., 30 Penn. St. 378 ; Bonham i-. Galloway, 13 111. 68 ; Kellogg V. Ames, 41 Barb. 218 ; ante, § 1082. See Claflin v. Godfrey, 21 Pick. 1 ; Joslyn V. Wyman, 5 Allen, 62; Upton v. So. Read. Bk., 120 Mass. 153, that mortgagor cannot redeem without paying additional debts agreed to be secured by the mort- gage. And though in Massachusetts a note is presumed to be payment, yet the giving of a new note may be explained according to the real intent of the parties. Parham S. Mach. Co. v. Brock, 113 Mass. 194. 9 Grimes v. Kimball, 3 Allen, 518 ; Joslyn i;. Wyman, supra ; Eyre v. Burmes- ter, 10 H. L. Cas. 90. 168 MORTGAGES. notice. 1 So where the mortgagee assigned his mortgage, and indorsed the mortgage-note to a third person, but, before it was recorded, purchased it back, and the indorser reindorsed it and erased the assignment, it was held to restore the mortgagee to his original rights.^ On the other hand, if the mortgagor pay the debt, he cannot, by having it assigned to him, keep it alive as against a junior incumbrancer, though he obtain a new loan, and assign the first mortgage as a security therefor.^ But if a mortgage be made by A for the benefit and debt of B, and the latter pay the debt, it will not dis- charge the mortgage, and an assignment by the mortgagee to B will make it valid in his hand.* And it is said that the same would hold true, even if the mortgagor paid off the debt with his own money, if no third party was prejudiced thereby.^ So where the mortgage was assigned to the mort- gagor by mistake, his assignment was held to pass it to the real assignee as a valid instrument. Thus A having made his bond and mortgage to B, and, B wishing his mone}', A procured C to advance it to B, with a view of his having the bond and mortgage assigned to him. Instead of that they were assigned to A, and by him to C ; and it was held that A was but the agent of B and C in transacting the business, and that C was clothed with B's rights as mortgagee.*^ And in Robinson v. Urquhart,' it was held that if a mortgagor pay a mortgage-debt, and there be no intervening incumbrance, he may use the mortgage again to secure a new creditor; and where the real mortgage-debt had been actually paid off, another creditor may have the right of substitution or sub- rogation, and the mortgage may be appropriated to secure a debt to which in its origin it had no reference whatever. 1 Grimes v. Kimball, 8 Allen, 153. 2 Howe V. Wilder, 11 Gray, 267. 8 Angel V. Boner, .38 Barb. 425, 429 ; Harbeck v. Vanderbilt, 20 N. Y. 395 ; ante, § 1163 ; post, § 1122. * Champney v. Coope, 32 N. Y. 543, overruling s. c. 34 Barb. 539 ; and limit- ing Harbeck v. Vanderbilt, supra, to the case of payment by one of several joint judgment debtors. So Bascom v. Smith, 34 N. Y. 320 ; Kellogg v. Ames, 41 N. Y. 259, 263 ; Hubbell v. Blakeslee, 71 N. Y. 63, 68. * Champney v. Coope, Hubbell v. Blake.slee, supra, « Angel V. Boner, 38 Barb. 429, 430. See Starr v. Ellis, 6 Johns. Ch. 393. ' 12 N. J. Eq. 524. OP THE mortgagor's INTEREST. 169 This doctrine is stated as from authority of cases cited, the leading one of which (Starr v. Ellis ^) contains dicta favoring in some measure such view of the law, hut was decided the other way. A similar doctrine was favored by McCoun, Vice- Chancellor, in Purser v. Anderson,^ but the point was not decided. It seems to be opposed to the general tenor of nu- merous cases, and was expressly denied to be law in Merrill v. Chase : " A reissue of the note for a valuable consideration could not afterwards convey a title to the land without a new conveyance in mortgage by deed. "'^ So parol evidence is in- admissible, except for the purpose of proving fraud, to show that an express assignment of a mortgage was intended to be a discharge, even though offered by a third party.^ § 1121. Payment and Discharge. — That a mortgage has been paid, however, may always be proved by parol,^ or may be inferred from facts and circumstances proved ; ^ though even the possession by the mortgagor of the notes secured by the mortgage may be explained, and any presumption of pay- ment therefrom rebutted." And an entry of satisfaction upon the record, or one made under the seal of the mortgngee, is, as between the oi-iginal parties, only prima facie evidence of payment, and may be explained and controlled.^ But where a mortgagee negotiated the note secured by his mortgage to a third person, and then entered a satisfaction of his mortgage upon the record, a bona fide purchaser, not cognizant that the note was unpaid and the entry of satisfaction unauthorized, was entitled to hold against the holder of the note.^ And it 1 6 Johns. Ch. 392. 2 4 Edw. Ch. 17, 20. * 3 Allen, 339 ; Joslyn v. Wyman, 5 Allen, 63 ; Bowman v. Mauter, 33 N. H. 530, citing Hudson v. Revett, 5 Bing. 368. * Howard v. Howard, 3 Met. 548 ; Tyler v. Taylor, 8 Barb. 585. 6 Den V. Spinning, 6 N. J. 466 ; Ackia v. Ackia, 6 Penu. St. 228 ; McDaniels V. Laphani, 21 Vt. 222 ; Thornton v. Wood, 42 Me. 282. 6 Waugh V. Riley, 8 Met. 290 ; Morgan v. Davis, 2 Harr. & McH. 9 ; Deming V. Comings, 11 N. H. 474. 7 Smith V. Smith, 15 N. H. 55 ; Crocker v. Thompson, 3 Met. 224. 8 Fleming v. Parry, 24 Penn. St. 47 ; Trenton Bkg. Co. i;. Woodruff, 2 N. J. Eq. 117 ; Robinson v. Sampson, 23 Me. 388. 9 Cornog V. Fuller, 30 Iowa, 212 ; Hedden v. Crowell, 37 N. J. Eq. 89. See Viele V. Judson, 82 N. Y. 32 ; Persons v. Shaeffer, 65 Cal. 79 ; Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190 ; s. c. 20 So. Rep. 255- 170 MORTGAGES. is competent for the court to declare a discbarge made on the records, which was made by mistake, a nullity.^ Such is the law in New York. Where, therefore, the administrator of a mortgagee assigned a mortgage and debt to a bona fide pur- chaser, and subsequently discharged the mortgage upon the record without the knowledge of the assignee, it was held to be void as to him, and as to all persons except subsequent incumbrancers, who become such upon the faith of the record of the discharge. Had the assignment been recorded first the discharge would have had no effect upon the validity of the mortgage, nor would it have let in any subsequent incum- brancer to take in precedence of such mortgage. ^ And in Joslyn V. Wyman, a mortgagor having paid the notes origi- nally secured by the mortgage, he, for a new consideration, made notes answering to those given up, and agreed that the mortgagee should hold the mortgage to secure them. The mortgagor then conveyed the estate to another, having full knowledge of the transaction, who applied to the court to obtain a discharge of the mortgage. But the court held, that though the transaction and agreement did not attach the new notes to the mortgage so as to make it a security for them to be enforced as a mortgage, or give it validity against an at- taching creditor, a second mortgagee, or bona fide purchaser, yet it laid the ground for refusing aid as a court of equity, and for leaving the parties to their legal rights, though the court do not define what those were.^ So where an assignee of a mortgage, after purchasing the equity, represented the notes and mortgage as valid, and subsisting to a transferee without notice, he was estopped to deny the continued exist- ence of the mortgage.* Where the discharge of a mortgage has been obtained by fraud, equity may treat the discharge as a nullity, and revive the mortgage.^ A mortgagee may discharge the mortgage security upon the estate without ^ Bruce v. Bonney, 12 Gray, 113. 2 Ely V. Scofield, 35 Barb. 330 ; Heilbran v. Hammond, 13 Hun, 474. See Swartz V. Leist, 13 Ohio St. 419. * Joslyn V. Wyman, 5 Allen, 62 ; Stone v. Lane, 10 Allen, 74 ; ante, § 1082. < Graves v. Rogers, 59 N. H. 452 ; Internat. Bk. v. Bowen, 80 111. 541 ; Powell V. Smith, 30 Mich. 451. 5 Barnes v. Camack, 1 Barb. 392. OF THE mortgagor's INTEREST. 171 affecting the debt itself as sucli.^* And a mortgage may contain covenants running with the land which will survive payment of the debt and discharge of the security. ^ * Note. — In many of the States there is a provision made for a ready mode of discharging mortgages by a brief certiiicate to that eiTect entered upon the record in the register's office. See post, § 1184, n. 1 Sherwood v. Dunbar, 6 Cal. 53. 2 Brown v. O'Brien, 168 Mass. 484 ; s. c. 47 N. E. Rep. 195. And for a con- sideration of what covenants run with the land, see 2}ost, § 1205. 172 MORTGAGES. CHAPTER XLVII. MORTGAGES — MERGER OF INTEREST. § 1122. When the estates of the mortgagor aud mortgagee merge. 1123. The (question is one of iiiteiitioii. 1124. How the interests must unite. 1125. Redemption passes mortgagee's acquisitions. § 1122. "When the Estates of Mortgagor and Mortgagee merge. — It sometimes happens that the interests of mort- gagor and mortgagee come together in one and the same per- son, and then a question often arises whether the two have become merged in one, or remain still distinct interests. It is generally true, that whenever a legal and equitable estate in the same land come to one person in the same right, with- out an intervening interest outstanding in a third person, the equitable merges in the legal estate, and the latter alone re- mains subsisting. But in order to work a merger, the mort- gagee must be the holder of the mortgage at the time he acquires the estate of the mortgagor. If he has parted with that, there would be no merger by his coming into the place of the mortgagor. 1 In applying this principle to mortgages, it makes no difference whether the mortgagor or his assigns pay off the mortgage or take an assignment of it, or the mort- gagor conveys to the mortgagee by an absolute deed.^ Such merger extinguishes the mortgage-debt, and the mortgage can no more be set up than if it had been fully paid.^ This 1 White V. Hampton, 13 Iowa, 259. 2 Gardner v. Astor, 3 Johns. Ch. 53 ; Starr v. Ellis, 6 Johns. Ch. 393; James V. Johnson, id. 417 ; Burnet v. Denniston, 5 Johns, (ph. 35; Tud. Cas. 772, 773 ; Wilhelmi v. Leonard, 13 Iowa, 330 ; James v. Morey, 2 Cow. 246, 300, 313 ; Put- nam V. Collamore, 120 Mass. 574 ; Carlton r. Jackson, 121 Mass. 592; Thompson V. Heywood, 129 Mass. 401. 8 Gregory v. Savage, 32 Conn. 250, 264 ; Bassett v. Mason, 18 Conn. 131 ; James V. Morey, 2 Cow. 246, 286 ; Dickason v. Williams, 129 Mass. 182, citing the text ; Welsh V. Phillips, 54 Ala. 309. MERGER OP INTEREST. 173 proposition, however, is qualified by more recent cases to this extent; viz., if the mortgagee conveys to the mortgagor, it will be presumed to be a satisfaction and release of the mort- gage. But if the conveyance be by a mortgagor to the first mortgagee, where there is a junior incumbrance upon the estate, the interest of the first mortgagee, as such, would not be affected by such a union of interests in him. Whether it shall work a merger depends upon whether it is for the inter- est of the mortgagee.^ If there be two owners of an equity of redemption, and the mortgage be conveyed or assigned to one of them, the mortgage is not thereby merged ; it remains in force, and may be foreclosed by the assignee against his co- tenant of the equity, or the latter may redeem his interest in the estate by paying one-half of the mortgage-debt before fore- closure.'-^ So if a mortgagee assign his mortgage, and then buy the equity of redemption, it does not merge the mort- gage, though the assignment be not recorded. ^ The purchaser of an equity of redemption may take an assignment of the mortgage, and may keep the legal and equitable titles dis- tinct, at his election, if he has any interest in so doing, so that they shall not merge by unity of possession. And a release of an equity of redemption operates as an extinguish- ment of the equity of redemption, and not as a merger of the estate conveyed by the mortgage.* This can be best illus- trated by a reference to decided cases, with the additional explanation, that, in order to work a merger, the new estate created by the union of the two, out of which it is formed, must be a permanent one, and not defeasible in its nature. Thus where a right of way over one parcel belonged as appur- tenant to another, and the same person acquired separate mortgages of these two parcels from separate mortgagors, it was held not to work a merger of the easement until they 1 Edgerton v. Young, 43 111. 464 ; Stantons v. Thompson, 49 N. H. 272 ; T-ucker v. Crowley, 127 Mass. 400 ; Factors' Ins. Co. v. Murphy, 111 U. S. 738. But this interest is controlled if to keep the mortgage or mortgage-debt in force would prejudice the rights of a later incumbrancer, holder of the equity, or other party in interest. Swett v. Sherman, 109 Mass. 231. a Baker v. Flood, 103 Mass. 47. 8 Campbell v. Vedder, 1 Abb. (N. Y.) 295. * Clary v. Owen, 15 Gray, 525 ; Loud v. Lane, 8 Met. 517 ; Lyon v. Mc II vain, 24 Iowa, 9, 12 ; Shin v. Fredericks, 56 111. 439, 443. 174 MORTGAGES. should have been foreclosed; for had either mortgagor re- deemed his parcel, it would come back to him with the existing easement or servitude. ^ In another case, one pur- chased an equity of redemption in an estate, and then mort- gaged it. He then purchased in the first mortgage ; but it was held not to operate a merger in him, because of the inter- mediate outstanding mortgage created by him.^ But where an equity of redemption was conveyed to a wife, and the holder of the mortgage assigned his mortgage which came by sundry mesne assignments to the wife, who failed to put her assignment on record, and her immediate assignor then made a second assignment to a third person, who put the same upon record, the court intimated the opinion, that by the assign- ment to the wife the interests were merged, and that the second assignment by her assignor was of no effect.^ But an assignment by a mortgagee of his mortgage to the wife of the mortgagor does not operate as a discharge of the same.* If the one paying the debt have only an estate defeasible under an executory devise, it will not work a merger.^ And where it is for the interest of the holder of one of these titles, upon his acquiring the other, that they should be kept distinct in order that both should be protected, they will not be held to merge, unless the contrary intent appears from the language of the deed ; as where, for instance, the purchaser of an equity of redemption pays an outstanding mortgage, made by his grantor, in which his wife had released dower, the mortgage will not be deemed to be merged, as it would let in the widow to her full right of dower.^ And it may be stated as a gen- 1 Ritger v. Parker, 8 Cush. 145, 149 ; Hancock v. Carlton, 6 Gray, 39, 50. 2 Evans v. Kimball, 1 Allen, 240 ; Cook v. Brightly, 46 Penn. St. 439. 3 Pickett V. Barron, 29 Barb. 505. * Bean v. Boothby, 57 Me. 295 ; Model L. Ho. Assoc, v. Boston, 114 Mass. 133 ; Comurai.s v. Wesselhaft, id. 530. * Fisher, Mortg. 447. 6 See the cases above cited. Forbes v. Moffat, 18 Ves. 384 ; Hunt v. Hunt, 14 Pick. 374 ; Gibson v. Crehore, 3 Pick. 475 ; Eaton v. Simonds, 14 Pick. 98 ; Hatch V. Kimball, 14 Me. 9 ; St. Paul v. Dudley, 15 Ves. 167 ; Brown v. Lap- ham, 3 Cush. 551; Grover v. Thatcher, 4 Gray, 526; Ca.sey v. Buttolph, 12 Barb. 637 ; Bell v. Woodward, 34 N. H. 90 ; Johnson v. Johnson, Walker, Ch. 331 ; Button v. Ives, 5 Mich. 515 ; Thompson v. Chandler, 7 Me. 377 ; Holden V. Pike, 24 Me. 427 ; Fletcher v. Chase, 16 N. H. 38, 42 ; James v. Morey 2 Cow. 285, 300 ; N. E. Jewelry Co. v. Merriain, 2 Allen, 392 ; Savage v. Hall, MERGER OP INTEREST. 175 eral principle, that although, where the mortgagee purchases in the equity, he thereby extinguishes his debt and mort- gage,^ it will not be so regarded if he has been induced by fraud to give up his debt, or it is necessary for the protection of his interest that the estates should be kept distinct. In such cases the doctrine of merger does not apply. Thus, where the mortgagee purchased in the equity, but it after- wards appeared that there was a judgment lien upon it in favor of a creditor of the mortgagor, it was held not to merge the mortgage so as to let in this lien upon the estate of the mortgagee. 2 But where a third mortgagee paid the first, and took a deed of release in express terms discharging the same, it was held, that he could not set up the first mortgage against the claim of the second mortgagee. ^ § 1123. The Question is one of Intention, and the interests will not merge, unless the law finds such to be the intention of the person in whom they meet, expressly declared or clearly to be inferred from such merger being to his advan- tage.'* Thus where a mortgagee purchased of the mortgagor his equity of redemption, and gave up his note secured by the mortgage, it was held not to operate as a merger as against an intervening attachment and levy for the debt of the mort- gagor, it not being intended as a payment of the mortgage- debt, and the mortgage not having been actually discharged." § 1124. How the Interests must unite. — In order to a merger, the two interests must unite in one and the same person, in the same right at the same time.^ Wherefore a 12 Gray, 364, 365 ; Lock wood v. Sturdevant, 6 Conn. 373 ; Mallory v. Hitchcock, 29 Conn. 127. 1 Dickason v. Williams, 129 Mass. 182. 2 Vannice v. Bergen, 16 Iowa, 555, 562 ; T>yon v. Mcllvaine, 24 Iowa, 9. 8 Wade V. Howard, 6 Pick. 492 ; s. c. 11 Pick. 289 ; Frazee v. Inslee, 2 N. J. Eq. 239 ; Mansfield v. Dyer, 133 Mass. 374. * Knowles v. Lawlon, 18 Ga. 476 ; Waugh v. Riley, 8 Met. 290 ; Loud v. Lane, id. 517; Van Nest v. Latson, 19 Barb. 604; Hutchins v. Carleton, 19 N. H. 487; Den V. Brown, 26 N. J. 196 ; Loonier v. Wheelwright, 3 Sandf. Ch. 135, 157 ; Bryar's App., Ill Penn. St. 81. See Walker v. Barker, 26 Vt. 710. If the deed of the equity expressly declares that the interests shall not merge, they will not. Abbott V. Curran, 98 N. Y. 665. 6 N. E. Jewelry Co. v. Merriam, 2 Allen, 390. 8 Pratt V. Bennington Bk., 10 Vt. 293 ; Sherman v. Abbot, 18 Pick. 448 ; Thebaud v. Hollister, 37 N. J. 402. 176 MORTGAGES. mortgagee, having occasion to purchase the equity of redemp- tion, may always keep alive the mortgage by taking a convey- ance of the equity to a trustee. ^ So where the mortgagor applied to a third person to loan him money, upon an agree- ment that he should have the mortgage on his estate then outstanding as his securit}', and the money was furnished as a loan, and was delivered to the mortgagor, who paid it to the mortgagee and had the mortgage assigned in blank, it was held not to work a merger in the mortgagor's hands as against the one making the loan.^ But it may be laid down as universally true, that, where a mortgage has been substan- tially satisfied, it will never be kept alive by equity to aid in perpetrating a fraud through the forms of law, but only for the advancement of justice. ^ § 1125. Redemption passes Mortgagee's Acquisitions. — If a mortgagee, as such, while in possession of an estate, acquires any rights or advantages in respect to the same, and the mort- gagor redeems from him, the latter thereby acquires to him- self the benefit of these advantages. As, for instance, where the mortgagee of a term had acquired for himself a renewal of the lease in his own name, it was held, that the mortgagor, by redeeming the mortgage, acquired the benefit of such re- newal. In this respect, mortgagees stand in the relation of trustees to the estate as to deriving personal advantage out of it.* 1 Bailey v. Richardson, 9 Hare, 734 ; Fisher, Mortg. 450. 2 Champney v. Coope, 32 N. Y. 543. 3 McGiven f. Wheelock, 7 Barb. 22 ; Hinchman v. Emans, 1 N. J. Eq. 100 ; Hutchins v. Carleton, 19 N. H. 487. * Holridge v. Gillespie, 2 Johns. Ch. 30 ; Slee v. Manhattan Co., 1 Paige, 48. OF THE PERSONAL RELIEVING THE REAL ESTATE. 177 CHAPTER XLVIII. MORTGAGES — OP THE PERSONAL RELIEVING THE REAL ESTATE." § 1126. When heirs may call on executors to redeem. 1127. Devisees ami legatees. 1128. Insolvency — Land in another State. 1129. Limitations u[ion the heir's right. 1130. Purchaser of mere equity may not claim relief. § 1126. "When Heirs may call on Executors to redeem. — In general it may be assumed, where there is no specific legis- lation upon the subject, that an heir at law of a mortgagor may call upon the executor or administrator to discharge the mortgage upon the real out of the personal estate, on the ground that the personal estate had the benefit of the money for the security of which the mortgage was given, and qui sentit commodum sentire debet et onus, or "that that should have the satisfaction that sustained the loss;"^ and this was extended to a widow in favor of her dower, in an estate mort- gaged to secure the purchase-money ;2 though the holder of the mortgage is affected by no such consideration, and is not obliged to seek his satisfaction out of the personal estate.^ § 1127. Devisees and Legatees. — So, as a general proposi- tion, a devisee of the real estate stands, in this respect, in the situation of an heir.'* But the principle is adopted in favor of these alone, and only against executors, administra- 1 2 Crabb, Real Prop. 914 ; Cope v. Cope, 2 Salk. 449, and cases cited in the note ; Broom's Maxims, 560. 2 Henagan v. Harllee, 10 Rich. Eq. 285. 8 Trustees v. Dickson, 1 Freem. (Miss.) Ch. 474 ; Patton v. Page, 4 Hen. & M. 449. * Goodburn v. Stevens, 1 Md. Ch. Dec. 420 ; Cumberland v. Codrington, 3 Johns. Ch. 229 ; King v. King, 3 P. Wms 358; Lanoy v. Athol, 2 Atk. 444; 2 Crabb, Real Prop. 914. Though the real estate be devised subjet't to jiayment of debts. Lupton v. Lupton, 2 Johns. Ch. 614 ; Livingston v. Newkirk, 3 Johns. Ch. 312 ; Ancaster i-. Mayer, 1 Bro. C. C. 454 ; Lockhart v. Hardy, 9 Beav. 379. Unless the real estate be directed to be sold to pay debts, and the personal be expressly bequeathed. 1 Story, Eq. Jur. 572. VOL. II. — 12 178 MORTGAGES. tors, and residuary legatees, or next of kin of such mort- gagor. It does not avail against legatees, general or specific, nor against creditors.^ Nor have devisees of mortgaged prop- erty a right to call on executors to redeem as against devisees of other property. ^ § 1128. Insolvency — Land in another State. — If the estate of a deceased mortgagor be insolvent, the courts will not apply the personal to relieve the real estate.^ Nor can an executor or administrator be compelled to apply personal assets found in one State to relieve real estate situate in another jurisdic- tion.* But where an administrator, not knowing the land of his intestate to be under mortgage, sold it by leave of court as unincumbered, he was allowed to apply enough of the pro- ceeds to satisfy the outstanding mortgage upon the same, it being the only way in which he was able to make a good title to the estate.^ § 1129. Limitations upon the Heir's Right. — If an heir sell an equity of redemption that descends to him, without exer- cising his common law right to have the mortgage paid out of the personal estate, he cannot afterwards call upon that for relief or aid.^ And the rule in New York is, in all cases, that, where a mortgaged estate descends to an heir or passes to a devisee, he takes it charged with the mortgage, and is to satisfy it, unless there be, in the case of a devise, an express direction to the contrary.'^ Nor will a general direction to pay the testator's just debts be sufficient, under their statute, to throw the mortgage-debt upon the personalty.^ § 1130. Purchaser of Mere Equity may not claim Relief. — Wherever the holder of an equity of redemption has acquired 1 Coote, Mortg. 467, 468 ; Cope v. Cope, 2 Salk. 449 ; Torr's Estate, 2 Eawle, 250 ; Mansell's Estate, 1 Parsons, Eq. Cas. 367 ; Adams, Eq. Jur. (3d Am, ed.) 274, n. 2 Gibson v. McCormick, 10 Gill & J. 65 ; Mason's Est., 4 Penn. St. 497. 3 Gibson v. Crehore, 3 Pick. 475. * Haven v. Foster, 9 Pick. 112. 5 Church V. Savacje, 7 Cush. 440. 6 Haven v. Foster, 9 Pick. 112. 7 Mosely v. Marshall, 27 Barb. 42 ; Lalor, Real Est. 308. See a similar statute, 17 & 18 Vict. c. 113 ; Fisher, Mortg. 398 ; Wright v. Holbrook, 32 N. Y. 587, though otherwise with a vendor's lien ; 2 Story, Eq. (Redfield'.s ed.) § 1248 c. 8 Rapalye v. Rapalye, 27 Barb. 610. OP THE PERSONAL RELIEVING THE REAL ESTATE. 179 it by purchase, in the popular sense of that term, he takes it for what it is, — a mere right to become possessed of the estate by paying the incumbrance upon it, and that alone is what he has paid for. He has no right in equity to call upon any other fund to relieve his own estate. Thus, where a tes- tator purchased an estate subject to a mortgage, and made a personal agreement with the mortgagor to pay the debt, and then devised the estate, it was held that the debt was a charge upon the real estate only, and the devisee could not call on the personal estate to relieve it.^ And though the rule of the common law is as above stated, that, where the mortgagor himself contracts the debt, the mortgage is col- lateral to the debt, and the personalty is bound to relieve it; yet, if the original debt was that of another, the testator, by devising the estate, does not charge the payment of the debt upon his personal estate, unless he does so expressly by his wilL2* * Note. — In England, b}' statute 17 & 18 Vict. c. 118, heirs or devisees who now take mortgaged estates by descent or devise cannot call on the personal estate or other real estate to satisfy the mortgage-debt. Each part of the land charged by mortgage bears its dae proportion of the charge, unless the will by which the devisee takes directs otherwise. Wms. Real Prop. 362. 1 Cumberland v. Codrington, 3 Johns. Ch. 229 ; Tweddell v. Tweddell, 2 Bro. C. C. 101 ; Crowell v. St. Barnabas Hosp., 27 N. J. Eq. 650, 653. 2 2 Crabb, Real Prop. 914, 915, n. ; Cumberland v. Codrington, 3 Johns. Ch. 229, 257. 180 MORTGAGES. CHAPTER XLIX. MORTGAGES — OF CONTRIBUTION TO REDEEM. § 1131. General doctrine of contribution. 1132. General doctrine, continued. 1133. Illustrations. 1134. Mortgagor cannot call on his grantees. 1135. How equities are settled — Marshalling assets. 1 136. Rule of inverse order — Conflict. 1137. Rule inapplicable in special cases. 1138. Personal liability of purchaser or mortgagee of land already mortgaged. 1139. Purchaser's liability at law and in equity. 1140. Mortgagor's remedy against assuming purchaser. 1141. Subrogation to enforce contribution. 1142. Contribution, how compelled where equities are equal. 1143. Surety's equity to be subrogated. 1144. Difference between subrogation and assignment. 1145. Subrogation in favor of mortgagor. 1146. Effect upon surety of impairing his equity to subrogation. 1147. Marshalling the securities. § 1131. General Doctrine of Contribution. — It is a well-set- tled rule in equity, that, where land is charged with a burden, each portion of the estate should bear its equal share of such a charge ; and if the owner of one part, in order to protect his share, is obliged to pay a common charge upon his own and another's share of the estate, he may call upon the other owner to contril)ute pro rata towards the amount thus paid.^ But this doctrine obviously can apply only when the equities of the parties in interest are equal, and may be controlled by agree- ment, provided all these parties assent. Thus, suppose a cred- 1 Stevens v. Cooper, 1 Johns. Ch. 425 ; Story, Eq. Jur. § 477 ; Cheesebrough V. Millard, 1 Johns.-Ch. 409; Lawrence v. Cornell, 4 Johns. Ch. 542 ; Gibson v. Crehore, 5 Pick. 146 ; Chase v. Woodbury, 6 Cush. 143 ; Salem v. Edgerly, 33 N. H. 46. Thus, where two tenants in common made a joint mortgage of their common estate, and then made partition, and the share set off to one was sold at a sheriff's sale, the purchaser, having been obliged to pay the whole mortgage-debt, had contribution against the mortgagor, who owned the other half of the estate. Stroud I'. Casey, 27 Penn. St. 471 ; Briscoe v. Power, 47 111. 447. OF CONTRIBUTION TO REDEEM. 181 iter holds a mortgage upon two different estates, either of them amply sufficient to secure one debt, Tiiere would be no diffi- culty in so arranging between the mortgagor and mortgagee that the latter should release and give up iiis lien upon one of these estates, and rely wholly upon the other as security for his entire debt. And any one who should come into the place of either would taivC such rights as his grantor had in respect to these estates.^ § 1182. General Doctrine, continued. — But suppose, before this change had been made, a third person, as a creditor, or purchaser, or mortgagee, had acquired a lien upon the parcel thus left charged, no arrangement between the original mort- gagor and mortgagee could change this party's rights, or shift the proportion of the original debt with which the parcel should be charged.^ § 1133. Illustrations. — The case of Stevens v. Cooper may serve to illustrate this question. In that case, one R. had mortgaged six parcels to Cooper to secure a single debt, Cooper at the time agreeing with him to release any of these lots to any purchaser to whom R. might sell if he, Cooper, should be paid a certain sum per acre. R. sold lot No. 82 to Stevens, who agreed with Cooper by parol to pay him so much per acre if he would release the lot. The widow and heirs of Stevens paid Cooper a part of this amount in 1801, and he gave them a receipt as for so much paid towards the mortgage, to be applied to the discharge of lot No. 82. After the sale to Stevens, R. sold four other lots, and the purchasers received from Cooper releases of the same, in which he reserved the mortgage to be in full force on lot 82 and the other of the six lots. This was in 1797. But the Chancellor held, that by discharging the four lots he deprived the owners of the other two of the right to call upon their owners if they paid the whole mortgage, and that the holder of the mortgage could only hold lot No. 82 till he had received for the redemption 1 Cheesebrough v. Millard, 1 Johns. Ch. 409 ; Johnson v. Rice, 8 lie. 157, 161 ; Pool V. Marshall, 48 111. 440. So where with the assent of the holder of the equity part of the land was released by a second mortgagee, who had taken his mortgage from that holder, and the proceeds were applied on the first mortgage ; this was held no defence to the holder's liability on the second mortgage note. Williams v. Wilson, 124 Mass. 257 ; Hawhe v. Snydaker, 86 111. 197. 2 Powell, Mortg. 346, n. ; Parkman v. Welch, 19 Pick. 231. 182 MORTGAGES. thereof a sura bearing the same proportion to the whole mort- gage-debt as the value of that lot, at the time of the making of the mortgage, bore to the value of the whole six.i A simi- lar doctrine was held in Parkman v. Welch, where two parcels of land were mortgaged for a single debt, and one of these parcels the mortgagor conveyed to A, and another to B. The mortgagee gave A a release ; and when he sought to hold B's parcel for the entire debt, it was held that he could charge it only pro rata? [But to have this effect, the partial release by the mortgagee must have been made with notice of the liens or conveyances subsequent to his mortgage,^ and the mere fact that such subsequent liens or conveyances have been recorded is not notice.*] § 1134. Mortgagor cannot call on his Grantees. — But if, when the mortgagor has mortgaged two parcels to secure one debt, he sells one of these, and either he or his heirs then pay the mortgage-debt, he or they cannot call upon the grantee of the parcel conveyed for contribution.^ § 1135. How Equities are settled — Marshalling Assets. — Whether, therefore, the holder of one of several mortgaged parcels shall be liable to contribute to a holder of another, depends upon the equities under which they severally hold their respective parcels. If their equities are equal, each is liable to contribute to the other who has paid the debt. A mortgagor himself could not call upon his grantee, because 1 Stevens v. Cooper, 1 Johns. Ch. 425. 2 Parkman v. Welch, 19 Pick. 231 ; Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Paxton V. Harrier, 11 Penn. St. 312 ; Johnson v. Rice, 8 Me. 157 ; Deuster v. McCamns, 14 Wis. 307 ; Hawhe v. Snydaker, 86 111. 197 ; Wore. Sav. Bk. v. Thayer, 136 Mass. 459 ; and if the released land eqnals in value the mortgage, a complete discharge, ibid. ; Gaskill v. Sine, 13 N. J. Eq. 400 ; Cogswell v. Stout, 32 N. J. Eq. 240 ; Insurance Co. v. Huder, 35 Ala. 713 ; Union Nat. Bk. of Oshkosh V. Milburu & Stoddard Co., 7 N. D. 201 ; s. c. 73 N. W. Rep. 527 ; Ellis V. Fairbanks, infra. Tbe same result follows the mortgagee's release of the mortgagor personally. Coyle v. Davis, 20 Wis. 564 ; Sexton v. Pickett, 24 Wis. 346. 3 Ellis V. Fairbanks, 38 Fla. 257 ; s. c. 21 So. Rep. 107 ; Woodward i'. Brown, 119 Cal. 283; s. c. 51 Pac. Rep. 2. * George v. Wood, 9 Allen, 80 ; Van Orden v. Johnson, 14 N. J. Eq. 376 ; Blair v. Ward, 10 N. J. Eq. 119 ; Brown v. Simons, 44 X. H. 475. 6 Allen V. Clark, 17 Pick. 47 ; Chase v. Woodbury, 6 Cush. 143 ; Bradley v. George, 2 Allen, 392 ; Johnson v. Williams, 4 Minn. 260 ; Lock i;. Fulford, 52 111. 166, 169. OF CONTRIBUTION TO REDEEM. 183 originally he was himself liable for the whole debt ;i nor could an heir of the mortgagor, " for he sits in the seat of his ances- tor." ^ Nor could a purchaser of an equity of redemption call upon a prior purchaser, with warranty, of a parcel of the prem- ises from the same grantor.^ Nor can any subsequent pur- chaser call upon a prior one, where the several purchasers can be regarded as standing in the place of the mortgagor with his rights at the time of the date of his purchase^ Tiie rule generally applied in equity in the case last supposed is, that parts of a mortgaged estate which have been conveyed in suc- cession are liable for the debt in an inverse order of their alienation, the last conveyed being the first to pay ;^ and the mortgagee must exhaust the last-conveyed parcel before he can resort to a prior one upon which to enforce his mort- gage ; ^ whereas, if conveyed simultaneously, they are to contribute their due proportion." So it would be if the deeds conveying the equity subjected the several parcels to the in- cumbrance of the mortgage.^ If several lots covered by the 1 Cliase V. Woodbury, 6 Cush. 14-3 ; Story, E.^. Jur. § 1233 a ; Fleetwood's & Aston's Case, Hob. 45. 2 Harbert's Case, 3 Rep. 11 ; Harvey v. Woodliouse, Select Gas. in Ch. 3, 4 ; Aldrich i'. Cooper, 2 White & Tud. Lead. Cas. Pt. 1, 49 ; Clowes v. Dickenson, 5 Johns. Ch. 235 ; Beard v. Fitzgerald, 105 Mass. 134. 3 Gill V. Lyon, 1 Johns. Ch. 447, where one Wells mortgaged his estate, then sold a parcel with warranty ; after which his estate in the residue was sold on execution to the plaintiff Gill, who paid the mortgage and claimed contribution of Lyon, which was disallowed by the court. Clowes v. Dickenson, 5 Johns Ch. 235 ; Porter v. Seabor, 2 Root, 146 ; Aiken i-. Gale, 37 N. H, 501. * Chase v. Woodbury, 6 Cush. 143 ; Holden v. Pike, 24 Me. 427 ; Randell v. Mallett, 14 Me. 51 ; Gushing v. Ayer, 25 Me. 383 ; Lock v. Fulford, 52 111. 166, 169; Tompkins v. Wiltberger, 56 111. 385, 391. & Story, Eq. Jur. § 1233 a ; Stoney v. Shultz, 1 Hill, Ch. 500 ; Jenkins v. Freyer, 4 Paige. 47 ; Guion v. Knapp, 6 Paige, 35 ; Skeel v. Spraker, 8 Paige, 182; Schryver v. Teller, 9 Paige, 173; Hartley v. O'Flaherty, Lloyd & G. Cas. temp. Plunket, 208, 216 ; Howard Ins. Co. v. Halsey, 4 Sandf. 565; Donley r. Hays, 17 S. & R. 400 ; Plant. Rk. v. Dunda.s, 10 Ala. 661 ; Gumming v. Gumming, 3 Ga. 460 ; Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Fergu.son v. Kimball, 3 Barb. Ch. 616; Kellogg v. Rand, 11 Paige, 59; Black v. Morse, 7 N. J. Eq. 509; Henkle V. Allstadt, 4 Gratt. 284 ; Jones v. Myrick, 8 Gratt. 179 ; Gates v. Adams, 24 Vt. 70; Adams, Eq. Jur. (3d Am. ed.) p. 270, n. E ; Inglehart v. Crane, 42 111. 261 ; McKinney v. Miller, 19 Mich. 142, 156. And for other late cases to the same effect, see aafc, § 1133, n. 6 Tompkins v. Wiltberger, 56 111. 385. ■^ Chase v. Woodbury, 6 Cush. 143. 8 Briscoe v. Power, 47 111. 447. 184 MORTGAGES. same mortgage are conveyed to different purchasers, and the mortgagee releases one of these, he will thereby discharge all the other parcels, pro rata, to the extent to which such parcel was originally chargeable, provided the equities of each are equal. ^ § 1136, Rule of Inverse Order — Conflict. — But the authori- ties are not entirely in accord upon the subject of marshalling the securities in the inverse order in which the land was con- veyed, as above described. All the cases agree, that so far as the mortgagor himself is concerned, the debt being a per- sonal duty, if he pays it he has no right to call upon the pur- chaser of a part of the mortgaged premises, while he himself retains a part, to contribute towards such debt.^ The cases further agree, that, if the equities between two or more per- sons in respect to an incumbrance upon their estates are equal, each must share his own proportion in relieving these estates.^ The question, therefore, between the two classes of decisions above referred to has been, whether the equities of successive purchasers of parts of a mortgaged estate in re- spect to the incumbrance are equal, or one is prior or superior to the other. The ground upon which the latter doctrine rests seems to be this : When the mortgagor parted with one par- cel of his estate, reserving the remainder, he, as to his grantee, charged the entire debt upon that part which he retained. And when he sold that, or any part of it, the pur- chaser had in respect to it no better rights than himself, and consequently took it subject to the debt, without any right to call on the prior purchaser for contribution. On the other hand, the idea that the equities in such a case are equal seems to rest upon these considerations : When the succes- sive purchasers took deeds of their lands, they all knew them 1 Taylor v. Short, 27 Iowa, 361. Provided the releasor had notice, not by- record, of the equities of tlie purchasers. See ante, § 1133. 2 Chase v. Woodbury, 6 Cush. 143, 147 ; Allen v. Clark, 17 Pick. 47, 55. But this is a personal duty only in respect of the parcel retained, and the mortgagor who has bought from a prior purchaser may enforce such purchaser's right against a later purchaser of the parcel retained. Powles v. Griffith, 37 N. J. Eq. 384, 386. 8 Salem v. Edgerly, 33 N. H. 46, 50 ; Allen v. Clark, 17 Pick. 47 ; Stevens v. Cooper, 1 Johns. Ch. 425 ; Aiken v. Gale, 37 N. H. 501 ; Gibson v. Crehore, 5 Pick. 146, 152. OP CONTRIBUTION TO REDEEM. 185 to be under a mortgage ; they all expected the mortgagor, lie being the debtor, would pay the debt, and took from him covenants to that effect, each paying the full value of the estate as if unincumbered ; each, therefore, relied upon the mortgagor to pay the debt; and so far as they, by their lands, were sureties for such a payment, they stood towards the mortgagor in the light of sureties, having the rights of sure- ties between each other, by which, by a familiar rule of equity, if any one of them paid the debt, he became entitled to hold the whole property mortgaged until the owners of the other parts than his own contributed their respective shares of the redemption-money. 1 The point of difference, there- fore, between those who maintain these doctrines, seems to be, whether the equities of the parties shall be determined by an arbitrary rule of law, or by what the parties understood and expected when they became the purchasers. Judge Story favored the latter of these doctrines. Mr. Rcdficld, the able and learned annotator and editor of his later edition, strongly inclined to maintain the former doctrine. ^ Among the courts of the several States that sustain the prior equity of the ear- liest purchaser are those of Alabama, Georgia, Illinois, In- diana, Michigan, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, South Carolina, Virginia, Wiscon- sin ; and to these Massachusetts, Florida, North Dakota, Cali- fornia, and probably Maine, may now be added ; while a case from the Irish courts goes to sustain the same point. ^ On the 1 Post, § 1143. 2 Story, Eq. § 1 233 h, and note. 8 Cowden's Est., 1 Penn. St. 267, 277, where the court deny that the authorities cited by Story, J., with one exception, sustain his doctrine ; Patty v. Peasp, 8 Paige, 277, in which it is said to be a mere rule in equity ; Nailer v. Stanley, 10 S. & R. 450; Day v. Patterson, 18 Ind. 114, where it is stated as probably the rule of law ; Shannon v. Marselis, 1 N. J. Eq. 413, 421 ; Gaskill v. Sine, 13 N. J. 400 ; Johnson V. Williams, 4 Minn. 260 ; Lyman v. Lyman, 32 Vt. 79. See Gates v. Adams, 24 Vt. 70 ; Brown v. Simons, 44 N. H. 475 ; 45 id. 211 ; Mclntire v. Parks, 59 N. H. 258 ; Huntly v. O'Flaherty, Lloyd & G. Cas. temp. Plunket, 215 ; Holden V. Pike, 24 Me. 427 ; Gushing v. Ayer, 25 Me. 383 ; Sheperd v. Adams, 32 Me. 63. See also Salem v. Edgerly, 33 N. H. 46 ; Aiken v. Gale, 37 N. H. 501. Also Presb. Co. v. Wallace, 3 Rawle, 165, the doctrine of which is impugned b}' Cowden's Est., supra; Plant. Bk. v. Dundas, 10 Ala. 661 ; Mobile Dock Co. v. Kuder, 35 Ala. 717, 721; Cumming v. Gumming, 3 Ga. 460; Aiken v. Bruen, 21 Ind. 137 ; Mason v. Payne, Walker, Ch. 459 ; Ireland v. Woolmau, 15 Mich. 186 MORTGAGES. other hand, the courts of the following States either assume the equities between the purchasers in such a case to be equal, or sustain the doctrine by elaborate opinions; viz., Ohio, Kentucky, Tennessee, Iowa, and North Carolina. And so does one of the English chancery cases. ^ In a case in New Hampshire, the court say: "It must be considered as settled, that, when the owner of an equity of redemption conveys by deed of warranty a part of the mortgaged premises, neither he nor his heirs, nor subsequent grantees, with notice of the remaining part of the mortgaged premises, are entitled to contribution from the first grantee towards payment of the mortgage-debt." But this doctrine only applies to purchasers in succession from the mortgagor, and not to titles acquired from the grantee of a mortgagor who had purchased his en- tire interest or equity. ^ And the rule which equity applies in these cases may be controlled by the agreement of the parties.^ § 1137. Rule inapplicable in Special Cases. — But a prior purchaser of part of the mortgaged premises may make himself liable to contribute to a subsequent one who shall have paid an outstanding mortgage, by his manner of dealing with the vendor under whom they both claim. Thus, where a mort- gagor of two parcels, to secure one debt, sold one to A B, taking back a mortgage to secure the purchase-money, and 253 ; Jumel v. Jumel, 7 Paige, 591 ; Lafarge Iiis. Co. v. Bell, 22 Barb. 54; Stoney V. Shultz, 1 Hill, Ch. (S. C.) 465, 500 ; Conrad v. Harrison, 3 Leigh, 532 ; Worth V. Hill, 14 Wis. 559 ; State v. Titus, 17 Wis. 241 ; Beevor v. Luck, L. R. 4 Eq. 537, 546 ; Inglehart v. Crane, 42 111. 261 ; George v. Wood, 9 Allen 80 ; North- western Land Ass'n v. Robinson, 114 Ala. 468 ; s. c. 21 So. Rep. 999 ; Ellis v. Fairbanks, 38 Fla. 257; s. c 21 So. Rep. 107 ; Union Nat. Bk. of Oshkosh o. Milburn & Stoddard Co., 7 N. Dak. 201; s. c. 73 N. W\ Rep. 527 ; Irvine v. Perry, 119 Cal. 352 ; s. c. 51 Pac. Rep. 544. 1 Green v. Ramage, 18 Ohio, 428; Dickey v. Thompson, 8 B. Mon. 312. See Morrison v. Beckwith, 4 T. B. Mon. 73 ; Jobeu. O'Brien, 2 Humph. 34 ; Bates v. Rud- diek, 2 Iowa, 423, a full and well-considered case ; Barney v. Myers, 28 Iowa, 472 ; Barnes v. Racster, 1 Younge & C. Ch. 401 ; Stanly v. Stocks, 1 Dev. Eq. 314, 317. See also Adams, Eq. (Am. ed.) 270, note of American cases. 2 Norris v. Morrison, 45 N. H. 490. See an able examination of the question of the rights of several purchasers of parts of a mortgaged estate in respect to each other, with a reference also to the civil law, Dixon on Subrogation, etc., p. 30 et seq.; Locke v. Fulford, 52 111. 166. 3 State V. Throup, 15 W^is. 314 ; W'elsh v. Beers, 8 Allen, 151 ; Bryant v. Damon, 6 Gray, 564. OF CONTRIBUTION TO REDEEM. 187 then sold the other parcel to C D, and became insolvent, and C D had to pay the entire debt, it was held that he thereby became entitled to have the mortgage given by A B to his grantor assigned to him, and by means thereof to com- pel A B to contribute towards the redemption of the origi- nal mortgage.^ And where one of two grantees of separate mortgaged parcels gave an agreement to his grantor that he would pay his proportion of the mortgage-debt, and the other grantee was obliged to pay the entire debt, it was held he might call upon the first for contribution. ^ In another case, it was held that where the mortgage provides that any part of the land sold by the mortgagor shall be released on payment of the purchase-money on the mortgage, and the mortgagor sells a part to one having notice of such provision, reserving a lien for deferred payments, and delivering the notes there- for to the mortgagee; the land sold was primarily liable for the amount due on the notes, and the mortgagee must resort to it to that extent before subjecting the remaining land held by the mortgagor.^ § 1138, Personal Liability of Purchaser or Mortgagee of Land already mortgaged. — Sometimes the deed of such purchaser or mortgagee excepts the former mortgage from its covenants ; sometimes the deed recites that the debt is to be paid as a part of the purchase-money, or assumes in some form that the pur- chaser or mortgagee of the estate is to pay the first mortgage- debt. The question in such cases is, whether the purchaser takes his estate charged with the payment of the debt, which he must pay to save his estate, or whether he becomes per- sonally responsible, by reason of having received from the debtor assets, out of which he directly or by implication agrees to pay the debt."* But an heir, devisee, or purchaser, by sim- 1 Allen V. Clark, 17 Pick. 47. 2 Sawyer v. Lyon, 10 Johns. 32 ; Briscoe v. Power, 47 111. 447 ; Bryant r. Damon, 6 Gray, 564 ; Mayo v. Merrick, 127 Mass. .511. 3 Northwestern Land Ass'n v. Roliinson, 114 Ala. 468 ; s. c. 21 So. Rep. 999. * Ferris v. Crawford, 2 Denio, .59.5 ; Thompson v. Thompson, 4 Ohio St. 333, 349 ; Halsey v. Reed, 9 Paige, 446 ; Belmont v. Coman, 22 N. Y. 438 ; Braman V. Dowse, 12 Gush. 227 ; Equit. L. Ass. Soc. v. Bostwick, 100 N. Y. 623 ; Law- rence V. Towle, 59 N. H. 28 ; anie, § 1048 : Burr v. Beers, 24 N. Y. 178 ; Schley V. Fryer, 100 N. Y. 71 ; Davis v. Hnlett, 58 Vt. 90 ; Thompson v. Thompson, 4 Ohio St. 353 ; Thorp v. Keokuk Coal Co., 48 X. Y. 253-260. 188 MORTGAGES. ply taking land charged with a mortgage-debt, does not make the debt his own, or subject himself or his personalty in equity to its payment.^ But when a purchaser assumes the debt as a part of the price he is to pay for the purchase, he makes it his own, and subjects his personalty to relieve the realty. So, where the purchaser assumes to pay the debt as a part of the consideration for the purchase, he makes the debt his own, both as it regards the mortgagor and mortgagee, and an action will lie in favor of the mortgagee against the pur- chaser for the amount of the incumbrance retained out of the price he agreed to pay.^ The clew which is to guide in such cases seems to be, whether by the deed the grantee assumes to pay the mortgage-debt, or is to pay it, or words to that effect. If it does, though it be a deed-poll, it binds the grantee by such recital, and he becomes personally liable therefor. Otherwise it is regarded as a descriptive clause, or one inserted for the protection of the grantor from liabil- ity upon his covenants of title. ^ § 1139. Purchaser's Liability at Law and in Equity. — That a parol contract made by A to B to pay C money, if sustained 1 Fiske V. TolmaTi, 124 Mass. 254 ; Heim v. Vogel, 69 Mo. 529 ; Babcock v. Jordan, 24 Iiid. 14, 22; Belmont v. Coraan, 22 N. Y. 438 ; Gage v. Brewster, 31 N. Y. 218, 221 ; and see Brewer v. Maurer, 38 Ohio St. 543. 2 Lenuig's Estate, 52 Penn. St. 138, 139; Hotf's Appeal, 24 Penn. St. 200. 3 Braman v. Dowse, 12 Cush. 227 ; Drury v. Tremont, etc. Co., 13 Allen, 168 ; vide post, § 2408 ; ante, § 1048. Where there is an express recital that the grantee is to pay or assume the mortgage-debt, the cases are uniform that he is personally liable either to the mortgagor, as held in Massachusetts and some other States, cases supra; Furnas v. Durgin, 119 Mass. 500 ; Locke v. Homer, 131 Mass. 93 ; or directly to the mortgagee, either at law or in equity, as in New York and many other States, Burr v. Beers, 24 N. Y. 178 ; Campbell v. Shruni, 3 Watts, 60 ; Merriinan v. Moore, 90 Penn. St. 78 ; Eoss v. Kennison, 38 Iowa, 396. But where the agreement is that the purchaser takes the estate "under and subject" to the mortgage, or it is to form part of the consideration, it is held in Massachusetts that he is under no personal liability for the debt. Fiske v. Tolman, 124 Mass. 254 ; Locke i'. Homer, 131 Mass. 93, 106; and see Belmont v. Coman, 22 N. Y. 438, and Heim v. Vogel, 69 Mo. 529. But the prevailing rule is, that such a re- cital makes, in equity at least, an agreement to indemnify the mortgagor if he is held to pay. Tweddell v. Tweddell, 2 Bro. C. C. 152 ; Waring v. Ward, 7 Ves. 337; Tichenor v. Dodd, 4 N. J. Eq. 454 ; Burke v. Gummey, 49 Penn. St. 518; Academy v. Smith, 54 Penn. St. 130 ; Metzgar's App., 71 Penn. St. 330 ; Girard Ins. Co. V. Stuart, 86 Penn. St. 89; Moore's App., 88 Penn. St. 450; Merriman v. Moore, 90 Penn. St. 78, 80 ; Snyder v. Summers, 1 Lea, 534, 540 ; Townsend v. Ward, 27 Conn. 610. OF CONTRIBUTION TO REDEEM. 189 by a sufficient consideration, may be enforced by suit at law in C's name, seems to be generally conceded in many of the States;^ [but this doctrine is contrary to the principle of the law of contracts that only the one from whom the considera- tion moves has a right of action on the promise, and is denied by the English courts and by high authority in this country.^ But whatever the liability to the mortgagee, at law, of one who buys mortgaged property, assuming to pay the mortgage debt, his personal liability in equity to the mortgagee is well recognized; so that upon foreclosure, a deficiency decree can be rendered against him. This liability is based upon the equitable doctrine of subrogation.^] And in New York, while the courts hold that if a second mortgagee covenant with the mortgagor that he will assume and pay the prior mortgage, [the mortgagee is not subrogated so that upon foreclosure he can enforce the second mortgagee's promise by deficiency de- cree,^] it would be otherwise if the conveyance was an abso- 1 Shotwell V. Gilkey, 31 Ala. 724 ; Hecht v. Caughron, 46 Ark. 132 ; Green v. Morrison, 5 Col. 18 ; Steele v. Clark, 77 111. 471 ; Rogers v. Grosnell, 58 Mo. 589 ; Shamp V. Mej'cr, 20 Neb. 223; Merriman i>. Moore, 90 Penn. St. 78; Putney v. Fariiham, 27 Wis. 187 ; Wood v. Moriarty, 15 R. I. 518 ; s. c. 9 Atl. Rep. 427. 2 The doctrine of these courts is that the third person, to have a right of action on the promise, must be privy to the consideration. To this there are two well- recognized apparent, but not real, exceptions : 1st, where the promisor has in his possession a fund which, ex bono et aequo, he ought to pay to the third person ; 2d, where the promise is made entirely for the benefit of the third person. In both of these cases, the promisee is treated as the agent of the third person, he being the real promisee, the one to whom the promise is made having no light of action be- cause he only acts as agent. Second Nat. Bank v. Grand Lodge, 98 U. S. 123 ; Crazin v. Lovell, 109 U. S. 194; Locke v. Plomer, 131 Mass. 93 ; Pardee v. Treat, 82 N. Y. 385 ; Chung Kee v. Davidson, 73 Cal. 522 ; Martyn v. Arnold, 36 Fla. 446. The case of Hendricks v. Lindsay has been erroneously cited as supporting the contrary view ; and many of the cases contra seem to be on the authority of early overruled cases in California, Massachusetts, and New York, and on cases in equity in which the equitable doctrine of subrogation has been applied. In Con- necticut, by statute, if a conveyance provide that the grantee shall assume and pay an existing mortgage he is legally liable to the mortgagee. Gen. Stat. 1888, § 983. But upon tlie main proposition, the Connecticut courts are in line with the cases above cited. Baxter v. Camp, 71 Conn. 245 ; s. c. 41 Atl. Rep. 803. 3 Jones on Mortgages, § 755 ; Thompson v. Dearborn, 107 111. 87. * Garnsey v. Rogers, 47 N. Y. 233 ; Pardee v. Treat, 82 N. Y. 385 ; Condict v. Flower, 106 111. 105. If the assumption, though absolute, was by a remote assignee, and the mesne assignees had not assumed, Vrooman r. Turner, 69 N. Y. 280; or if no valid debt exists against the mortgagor. Trotter v. Hughes, 12 N. Y. 74 ; or no separate note or bond for the debt, or covenant in terms in the mortgage to pay it. 190 MORTGAGES. lute one, and the assumption of the mortgage-debt was a part of the consideration for the conveyance. It is considered as so much money left in the hands of the purchaser for the use of the mortgagee.^ And the mortgagee may recover of the purchaser, if he expressly agrees with the vendor to pay the mortgage-debt. 2 § 1140. Mortgagor's Remedy against Assuming Purchaser. — Where, therefore, a purchaser from a mortgagor of the mort- gaged estate, agrees with his grantor to assume and pay the mortgage-debt, the mortgagor's remedy against the purchaser is either directly by an action upon his agreement,^ or by way of subrogation to the mortgagee, if he has enforced the debt against the mortgagor.* For, as between the vendor and pur- chaser, in such a case the purchaser becomes the principal and the vendor the surety in respect to the debt.^ Spencer v. Spencer, 95 N. Y. 353 ; Mack v. Austin, id. 513; or if the consideration fails by the vendee's eviction, Dunning v. Leavitt, 85 N. Y. 30 ; unless the deed was a quitclaim only, with merely a failure of title, Thorp v. Keokuk Co., 48 N. Y. 253. But until eviction the validity of the mortgage cannot be disputed. Park- inson V. Sherman, 74 N. Y. 88. And it is no defence that the mortgagor was a married woman, as she is not a surety. Cashman i'. Henry, 75 N. Y. 103 ; Huyler V. Atwood, 26 N. J. Eq. 504. 1 Burr V. Beers, supra; Ricard v. Saunderson, 41 N. Y. 179. 2 Thorp V. Keokuk Coal Co., 48 N. Y. 256, 257 ; Campbell v. Smith, 71 N. Y. 26; Crawford v. Edwards, 33 Mich. 354 ; Corbett v. Waterman, 11 Iowa, 86; Bowen V. Kurtz, 37 Iowa, 239 ; Ross v. Kinnison, 38 Iowa, 396 ; Schmucker v. Sibert, 18 Kan. 104 (the liability in the two latter States being at law and on the note); George v. Andrews, 60 Md. 26. The mortgagor becomes a mere surety, and is dis- charged by extension of time, etc. Calvo v. Davies, 73 N. Y. 211 ; Paine v. Jones, 76 N. Y. 278 ; Spencer v. Spencer, 95 N. Y. 353 ; George v. Andrews, supra ; Flower v. Lance, 59 N. Y. 603. In other States, however, he and the vendee are alike principal debtors. Corbett v. Waterman, Crawford v. Edwards, supra ; Klap- worth V. Dressier, 13 N. J. Eq. 62 ; Huyler v. Atwood, 26 N. J. Eq. 504 ; Crowell V. Currier, 27 N. J. Eq. 152. But this equity is not that of the mortgagee to be subrogated, but that of the mortgagor to be relieved. Crowell v. St. Barnabas Hosp., 27 N. J. Eq. 650, 655 ; and see Heid v. Vreeland, 30 N. J. Eq. 591. This equity is not recognized in foreclosure in Missouri, on account of the statutory nature of the proceeding. Fithian v. Monks, 43 Mo. 502. 8 Furnas v. Durgin, 119 Mass. 500 ; Locke v. Homer, 131 Mass. 93 ; Reed v. Paul, id. 129 ; Rubens v. Prindle, 44 Barb. 336 ; Thayer v. Torrey, 37 N. J. 339 ; Snyder v. Summers, 1 Lea, 534, 540. * Marsh v. Pike, 10 Paige, 595 ; Morris v. Oakford, 9 Penn. St. 498 ; Trotter v. Hughes, 12 N. Y. 74. 5 Ferris v. Crawford, 2 Danio, 595 ; Blyer v. Monholland, 2 Sandf, Ch. 478 ; Tripp V. Vincent, 3 Barb. Ch. 613 ; Flagg v. Thurber, 14 Barb. 196 ; Morris v. OF CONTRIBUTION TO REDEEM. 191 § 1141. Subrogation to enforce Contribution. — It is by the application of the principle of subrogation that the rights of a widow to dower in an equity of redemption are ascertained and enforced. She cannot insist that the holder of the mort- gage shall relinquish his claim upon the estate in her favor, without being paid the amount of his mortgage in full ; and if other parties interested in the equity of redemption neglect or refuse to redeem the mortgage, her only remedy is to redeem the entire estate, and hold the same as equitable assignee till the other parties are willing to contribute their proportion of the mortgage-debt.^ Whereas, if any other party having the equity of redemption pay the mortgage, she would be obliged to contribute her proportion of the redemption-money before recovering her dower,^ or, in Massachusetts, she might have her dower according to the value of the estate, after deducting the amount paid for the redemption.^ The general doctrine may be stated thus: If one who has a right to redeem a mortgage, and to require an assignment of it to him for his protection, pays it, and a full satisfaction is indorsed upon the mortgage, it may still, as between the parties interested in the estate, be held to be a subsisting security. The payment will be treated as a purchase in favor of the party making it.* Where one took a mortgage upon a part of an estate which had pre- viously been mortgaged, and wished to save his estate from foreclosure under this prior mortgage, he had to pay the entire debt, and, by so doing, became subrogated to the place of the prior mortgagee for so much of the debt as the whole of the Oakford, 9 Penn. St. 498 ; Russell v. Pistor, 7 N. Y. 171 ; Lilly v. Palmer, 51 111. 331. 1 McOabe v. Bellows, 7 Gray, 148 ; Gibson v. Crehore, 5 Pick. 146 ; Brown v. Lapham, 3 Gush. .551 ; Eaton v. Simonds, 14 Pick. 98 ; Bell v. The Mayor, 10 Paige, 49. And this is true of all tenants for life. Lamson v. Drake, 105 Mass. 564, 567; Spencer?;. Waterman, 36 Conn. 342. In Indiana, however, where the wife's interest is in fee, she is entitled to have her husband's interest sold first. Hardy v. Miller, 89 Ind. 440. 2 Messiter v. Wright, 16 Pick. 151 ; Gibson v. Crehore, 5 Pick. 146 ; Clough v. Elliott, 23 N. H. 182 ; Adams v. Hill, 29 N. H. 202. 8 McCabe v. Bellows, 7 Gra)', 148 ; Pub. Stat. 1881, c. 124, § 5. See Van Vronker v. Eastman, 7 Met. 157 ; Henry's Case, 4 Cush. 257. * Drew V. Kust, 36 N. H. 335 ; Robinson v. Leavitt, 7 N. H. 73, 99 ; Rigney v. Lovejoy, 13 N. H. 247 ; Aiken v. Gale, 37 N. H. 501 ; Cheesebrough v. Millard, 1 Johns. Oh. 413 ; Bacon v. Goodnow, 59 N. H. 415. 192 MORTGAGES, estate exceeded the debt for which he held his mortgage. ^ So where one owned two undivided eighth parts of an estate, sub- ject to a mortgage, and his co-tenant of the six eighth parts held this mortgage, he was obliged, in order to redeem his two eighths, to pay the entire mortgaged debt; but, by so doing, he became subrogated to six eighth parts of it, which his co-tenant would have to repay him in order to redeem his share of the estate. ^ S 1142. Contribution, how computed w^here Equities are Equal. — A dowress can have but a life-estate in a portion of the premises, another may have a lease of the premises for years, while a third may have a reversion in fee or for life; and it may become necessary to determine what each of these parties shall contribute to save their interest from foreclos- ure. Where the equities are equal and not successive, it is a matter which does not affect or concern the mortgagee, as he may look to the estate irrespective of the owners. The rule as now settled seems to be as follows: A tenant for life is bound to keep down the current interest (and if tenant for years is liable at all, the same rule would seem to apply), but not to pay any part of the principal.^ Now if, for example, there is a tenant for life, and a remainder-man in fee of an estate, subject to a mortgage which is due and must be paid at once to save foreclosure, and the remainder-man, to save the estate, pays the mortgage, he is not obliged to take the share of the tenant for life in annual instalments of interest to continue as long as he shall live. He is entitled, as equi- table assignee of the mortgagee, to immediate payment; and the sum which he thus has a right to claim is whatever the present worth of an annuity equal to the amount of the annual interest would be, computed for the number of years which the tenant will live. The method of computing the amounts to be paid by a dowress or other life tenant and the remain- der-man respectively has been stated ante, §§ 241, 480. § 1143. Surety's Equity to be subrogated. — Under the 1 Knowles v. KaUin, 20 Iowa, 101, 104. 2 Merritt v. Hosmer, 11 Gray, 276. ^ Tud. Cas. 59 ; Squire v. Compton, 2 Eq. Cas. Abr. 387 ; Swaine v. Ferine, a Johns. Ch. 482 ; Story, Eq. Jur. § 487 ; Powell, Mortg. 924, n. ; Bell i;. The Maj'or, supra. OP CONTRIBUTION TO REDEEM. 193 broad power which equity exercises in treating parties who are interested to avail themselves of the benefit of a mort- gage, as equitable assignees thereof, when by so doing it is made to fulfil the original purpose of being a security for the debt, a surety may be substituted in the place of the creditor to whom the principal debtor has made a mortgage as secur- ity for the payment of the debt, if such surety is compelled to pay it.i And he would have a right to insist upon the debt being paid out of the mortgaged estate, in preference to sub- sequent incumbrances created by the mortgagor. ^ And if a wife, as surety for a husband, pay the debt, she will be sub- rogated to the place of her husband's mortgagee.^ So if a surety pay his principal's del)t to a creditor who holds a mortgage to secure the same, he will be subrogated to the place of the creditor, not only as against his principal, but his wife also, if she joined in the mortgage.* § 1144. Difference between Subrogation and Assignment. — There is this distinction between subrogation to the place and rights of a mortgagee, and an assignment of these rights. The one assumes the mortgage-debt to be paid; the other assumes that the debt is unpaid, and still in force. ^ Thus where a junior mortgagee pays off a prior incumbrance in order to protect his interest, he comes into the place of the prior mortgagee by subrogation by the act of the law, without any act done by such mortgagee. If one be surety for a debt which is secured by a mortgage made by his principal to the creditor, and he have to pay the debt, he may by the law of New York insist upon the mortgagee assigning to him the mortgage, as well as the debt thereby secured. But unless he pays the debt as surety, or as standing in the place of a 1 Cheesebrough v. Millard, 1 Johns. Ch. 409 ; Hayes v. Ward, 4 Johns. Ch. 123 ; Mathews v. Aikin, 1 N. Y. 595 ; Boot v. Bancroft, 10 Met. 44 ; Ottman v. Moak, 3 Sandf. Ch. 431 ; Burton v. Wheeler, 7 Ired. Eq. 217 ; Bk. of So. Car. i;. Campbell, 2 Ricli. Eq. 179 ; Pence v. Armstrong, 95 Ind. 191, 196. Even though the debt be barred by statute. Ohio L. I. Co. v. Winn, 4 Md. Ch. Dec. 253 ; Stiewell v. Burdell, 18 La. Ann. 17 ; Billings v. Sprague, 49 111. 509. 2 Wilcox V. Todd, 64 Mo. 388 ; Shinn v. Smith, 79 N, C. 310. 3 Neimcewicz v. Gahn, 3 Paige, 640 ; Albion Bk. v. Burns, 46 N. Y. 170, 178. * Dearborn v. Taylor, 18 X. H. 153 ; McHenry v. Cooper, 27 Iowa, 137, 146 ; Phares v. Barbour, 49 111. 370; Rogers v. Trustees, etc., 40 111. 428. » Lamb v. Montaguf, 112 Mass. 352, 353. VOL. II. — 13 194 MORTGAGES. surety, he cannot insist upon an assignment being made to him of the debt and mortgage. ^ And because of this right in a surety upon payment of the debt to be subrogated to the place of the mortgagee, if the mortgagee discharge the mort- gage without his consent, the surety is thereby himself dis- charged from liability for the debt.^ And where a princi])al, to secure his surety, made an absolute deed of land, and the grantee died before paying the debt, it was held that the cred- itor had thereby an equitable lien on the estate for the amount of his debt.^ So a creditor may avail himself, as a security for his debt, of the benefit of a mortgage which his debtor has made to a surety for such debt by the way of indemnity."* Thus, where A gave to B, who was an accommodation in- dorser, a mortgage of indemnity, and both maker and indorser became insolvent, it was held that the holders of the notes might avail themselves of the mortgage security.^ But where a debtor mortgaged to his creditor land which was subject to a homestead right, and could not be reached by general cred- itors, and became bankrupt, and his creditor released his mortgage and came in for a dividend out of the debtor's other estate, and the other creditors objected that he had released what ought to have gone to relieve the estate out of which they were to be paid, it was held that his lien was a personal one only, since the mortgaged estate was not liable for the debts of the debtor, and therefore there was no wrong done to them by such release.^ If two co-debtors mortgage land 1 Ellsworth V. Lockwood, 42 N. Y. 89, 96, 100. 2 Port V. Bobbins, 35 Iowa, 208, 213. 8 Roberts v. Eichards, 36 111. 339. 4 Curtis V. Tyler, 9 Paige, 432 ; Blyer v. Monholland, 2 Sandf. Ch. 478 ; Ten Eyck V. Holmes, 3 Sandf. Ch. 428 ; Arnold o. Foot, 7 B. Mon. 66 ; Moore v. Mo- berly, id. 299 ; Stewart v. Preston, 1 Fla. 10 ; Besley v. Lawrence, 11 Paige, 581 : Story, Eq. § 638 ; Eastman i'. Foster, 8 Met. 19 ; N. Bedf. Inst. Sav. v. Fairhaven Bk., 9 Allen, 175; N. Lond. Bk. v. Lee, 11 Conn. 112; Moses v. Mnrgatroyd, 1 Johns. Ch. 119; Phillips y. Thompson, 2 Johns. Ch. 418; Aldrich v. Martin, 4 R. I. 520, case of an indorser; Manre v. Harrison, 1 Eq. Cas. Abr. 93 ; Ro.ss v. Wilson, 7 Sm. & M. 753 ; Saylors v. Saylors, 3 Heisk. 525 ; Paris v. Hulett, 26 Vt. 308 ; Boyd v. Parker, 43 Md. 182 ; Klapworth v. Dressier, 13 N. J. Eq. 62 ; Crowell V. St. Barnabas Hosp., 27 N. J. Eq. 650, 655 ; Lcehr v. Colbom, 92 Ind. 24 ; Kelly V. Herrick, 131 Mass. 373 ; Harmony Bk. App., 101 Penn. St. 428. 5 Rice V. Dewey, 13 Gray, 47. See Hall v. Cushman, 16 N. H. 462, as to one surety availing himself of a mortgage made by the principal to his co-surety. ® Dickson v. Chorn, 6 Iowa, 19. OF CONTRIBUTION TO REDEEM. 195 belonging to them jointly to secure a joint debt, and one of them is obliged to pay the whole debt, he becomes in techni- cal language subrogated to the place of the mortgagee, as to the mortgage upon his co-debtor's half of the estate, as secur- ity for his contributing his share of the debt,^ unless, as be- tween the debtors, one. is a principal and the other a surety in the mortgage-debt. If, in such a case, the real principal of the debt pay it, the doctrine of subrogation as to the land of the other mortgagor does not apply. ^ Thus, where one made two successive mortgages of the same estate to two different mortgagees, and the second of these was foreclosed, and the interest in both then came into the same owner's hands, it was held that the mortgagor could not after this redeem the first mortgage so as to acquire a right to open the foreclosure of the second, and then redeem from it. If he paid the first mortgage, he extinguished it, and could not thereby claim to be subrogated to the place of the mortgagee. ^ And this right of subrogation, in the cases above supposed, though originally a doctrine of equity, has become recognized as a legal right.* § 1145. Subrogation in Favor of Mortgagor. — A mortgagor will, however, be subrogated to the place and the rights of the mortgagee in respect to the mortgage-debt, when it is necessary in order to accomplish the purposes of justice, even against the person claiming under the mortgagor himself. Thus, if a mortgagor sells the mortgaged estate subject to the payment of the mortgage, and the holder of the debt thereby secured calls upon the mortgagor to pay the same, and he thereupon pays it, he will, by so doing, become at once subrogated to the place of the mortgagee, with a right to reimburse himself out of the mortgaged premises. And this would be equally so though the premises were held by a purchaser from the vendee of the mortgagor. In equity, the mortgaged estate in such 1 Sargent t'. M'Farland, 8 Pick. 500. 2 Crafts V. Crafts, 13 Graj', 360, 362 ; Cherry v. Monro, 2 Barb. Ch. 618 ; Kilborn v. Robbins, 8 Allen, 466, 471. « Butler 1-. Seward, 10 Allen, 466. * La Farge v. Herter, 11 Barb. 159. See Dixon on Subrogation, 13 et seq., and citations from the Civil Law ; Aiken i'. Gale, 37 N. H. 501 ; Cornell v. Prescott, 2 Barb. 16 ; Fletcher v. Chase, 16 N. H. 38, 42. 196 MORTGAGES. case becomes the primary fund out of which the debt is to be paid.^ This principle is carried out in respect to the assignees of the respective parties. As where A, having mortgaged an estate to B, sold it to C, who agreed, as recited in his deed, to pay B's mortgage. C also gave back a mortgage to A, con- taining an exception from the covenants of this mortgage to B, to secure the. purchase-money. This mortgage contained covenants for title. A then assigned this latter deed to N, subject to the condition therein, and indorsed the mortgage- note without recourse. N having died, B assigned his mort- gage to the executors of N, who sued A on his note secured thereby. It was held that if A paid this debt he would be subrogated to the place of B as against C, and also as against the holder of the second mortgage, because the holder took it subject to the condition to pay B's mortgage which was con- tained in C's deed. The executors, therefore, as holders of B's mortgage, could not recover in an action against A, be- cause, as his assignees, they were ultimately bound to pay the debt which they were suing.^ § 1146. Effect upon Surety of impairing his Equity to Sub- rogation. — This doctrine of equity rests upon the principle that the mortgage being upon the debtor's property, and intended as security for the payment of the debt, shall be so held by any one having a right to recover the debt from the principal debtor. It has been accordingly held, that a surety may have the benefit of the mortgage made to the creditor by the prin- 1 Jurael V. Jumel, 7 Paige, 591 ; Cox v. Wheeler, 7 Paige, 248, 257 ; Baldwin V. Thompson, 6 La. 474, where the doctrine is extended to all cases where one pays the debt of another which he is legally bound or has an interest to pay ; he is subrogated to the rights of the creditor against the person for whom he has paid. So where a mortgagee is liable to the assignee of the mortgage on his indorsement of the mortgage note. "Williams v. Roger "Wms. Ins. Co., 107 Mass. 377, 379; and see Dixon on Subrogation, 86-93 ; Fletcher v. Chase, 16 N. H. 42 ; Robinson v. Leavitt, 7 N. H. 73, 100 ; Baker v. Terrell, 8 Minn. 195 ; Kinnear v. Lowell, 34 Me. 299 ; Halsey v. Reed, 9 Paige, 446 ; Funk v. McReynold, 33 111. 481, 495 ; Heath v. West, 26 N. H. 191 ; Bell v. Woodward, 34 N. H. 90 ; Still- man V. Stillman, 21 N. J. Eq. 126 ; Passumpsic Bk. v. Weeks, 59 N. H. 239 ; ante, § 1137 and notes. See also Thompson v. Cheeseman, 15 Utah, 43; s. c. 48 Pac. Rep. 477 ; Schroeder v. Kinney, 15 Utah, 462 ; s. c. 49 Pac. Rep. 894 ; Nelson r. Brown, 140 Mo. 580 ; s. c. 41 S. W. Rep. 890 ; s. C. 62 Am. St. Rep. 755 ; Insurance Co. v. Hanford, 143 U. S. 187. 2 Swett V. Sherman, 109 Mass. 231. OP CONTRIBUTION TO REDEEM. 197 cipal debtor, even though, before he has been called on to pay the debt, the mortgagor has sold and conveyed the estate to another.^ And where the creditor voluntarily does an act invalidating or discharging the security that he holds from the principal for a debt to which there is a surety, he will thereby lose his claim on the surety to the same extent as the latter is injured by such act of the creditor.^ So if the creditor gives time to the principal to the injury of the surety, it not only discharges the surety, but avoids any mortgage which the debtor may have made to the surety to indemnify him ; and this would extend to the case of a wife who is such surety.^ So, if the purchaser of an equity of redemption who has assumed payment of the mortgage be given additional time by the mortgagee without the consent of the mortgagor, the latter is discharged upon his personal obligation.* Thus where husband and wife made a bond and mortgage of her estate, payable at a certain time, intended as collateral security for certain notes due from him, and the mortgagee renewed these notes after the time when the bond had become due by its terms, it was held to discharge the mortgage as to the wife and her heirs.^ But to have that efTect, the creditor must have known that the one to whom he gave time was a principal for whom the other was a surety.^ And the same rule applies where there are two sureties, and one of them holds a mort- gage to secure his indemnity, and his co-surety has to pay the debt ; the latter is subrogated in the place of the former as to the security." But a surety is not entitled to be thus sub- stituted until the whole debt shall have been paid.^ And he 1 Gossin V. Brown, 11 Penn. St. 527. 2 Hayes v. Ward, 4 Johns. Ch. 123 ; Cheesebrough v. Millard, 1 Johns. Ch. 409. 3 Neimcewicz v. Gahn, 3 Paige, 642 ; Harberton v. Bennett, Beatty, Ch. 386. * Thompson v. Cheeseman, supra; Schroeder v. Kinney, supra; Nelson v. Brown, supra; Insurance Co. v. Hanford, supra. 5 Albion Bk. v. Burns, 46 N. Y. 170, 178 ; Frickee v. Donner, 35 Mich. 151. ® Ibid. But it is held otherwise where the debt was pre-existing. Knight v. Whitehead, 26 Miss. 245. ' Cheesebrough v. Millard, 1 Johns. Ch. 409. ^ Stamford Bk. v. Benedict, 15 Conn. 437. And the same rule has been applied to securities given to the surety. Kelly v. Herrick, 131 Mass. 373 ; Clark v. Ely, 2 Sandf. Ch. 166. But see Moore v. Moberly, 7 B. Mon. 299, 301 ; Aldrich v. Martin, 4 R. I. 520. 198 MORTGAGES. may lose the benefit of the subrogation by his own laches in suffering other persons to acquire a valuable interest in the land in consequence of his omitting to malie known his own claim upon it.^ § 1147. Marshalling the Securities. — There is another prin- ciple which equity applies in the case of two or more parties in- terested in the same mortgaged property, which is somewhat more arbitrary in its character than any yet spoken of. Thus it seems to be a well-settled rule in equity, that if a creditor holds two mortgages upon two different estates to secure one debt, and a creditor of the same debtor has a later mortgage to secure his debt upon one only of the parcels, equity will require of the first mortgagee that he shall exhaust the secur- ity he has in the parcel not covered by tlie second mortgage before he shall come upon the latter parcel .^ So if a mort- gagee hold collateral security also by means of a mortgage by a surety, equity would require him to exhaust his mortgage security from the principal before calling upon the estate of the surety.^ The same rule would be applied if one mort- gage covered two parcels, and a second mortgage were made to a third person upon one of them. " Accordingly, if A has a mortgage upon two different estates for the same debt, and B has a mortgage upon one only of the estates for another debt, B has a right to throw A, in the first instance, for satis- faction upon the security which he, B, cannot touch ; at least, when it will not prejudice A's rights, or improperly control his remedies." ^ * But this does not extend to the case of * Note. — The authorities, it is believed, have all limited the application of this doctrine to cases, where, by compelling the first mortgagee to exhaust one of the mortgage-funds before apj)lying the other, the right of such mortgagee to a 1 Jarvis v. Whitman, 12 B. Mon. 97. 2 Powell, Mortg. 343, n. ; Evertson v. Booth, 19 Johns. 486 ; Hannah v. Car- riiigton, 18 Ark. 85 ; Lanoy v. Athol, 2 Atk. 446 ; Mechanics' Bk. v. Edwards, 1 Barb. 271 ; Miami Ex. Co. v. U. S. Bk., Wright, Ohib, 249 ; McLean v. Lafayette Bk., 3 McLean, 185 ; Baine v. Williams, 10 S. & M. 113 ; Swigert v. Bk. of Ken- tucky, 17 B. Mon. 268, 285 ; Hartley v. O'Flaherty, Lloyd & G. Cas. temp. Plun- ket, 208 ; White v. Polleys, 20 Wis. 503 ; Dickson v. Chorn, 6 Iowa, 19, 32 ; Clarke V. Bancroft, 13 Iowa, 320 ; Story, Eq. § 559 ; Iglehart v. Crane, 42 111. 261-269. 8 Neimcewicz v. Gahn, 3 Paige, 642 ; Wash. Bldg. Assoc, v. Beaghen, 27 N. J. Eq. 98. 4 Cowden's Estate, 1 Penn. St. 267 ; Cheesebrough r. Millard, 1 Johns. Ch. OF CONTRIBUTION TO REDEEM. 199 general creditors.^ And if the first murtgagee insist upon availing himself, in the first place, of the parcel mortgaged to the second mortgagee, equity will compel him to assign the lien he has upon the first parcel to the second mortgagee for his benefit.2 This rule, that a senior mortgagee shall exhaust so much of the mortgaged property as does not secure a junior mortgage before resorting to the part on which the latter relics, is, however, only applicable where it does not prejudice the rights of him who is entitled to the double fund, and does no injustice to the common debtor, nor operate inequitably upon the interests of otiier persons.^ Where such would be the effect, equity would apportion the first mortgage-debt ratably between the two estates.* full satisfaction of his debt is not thereby materially affected ; equity merely pre- scribing which fund shall be first applied and exhausted, before the second shall be made use of. McGinnis' Appeal, 16 Penn. St. 445 ; Gates v. Adams, 24 Vt. 70 ; Blair v. Ward, 10 N. J. Eq. 126 ; Dickson v. Chorn, 6 Iowa, 19, 32. But it seems to be difficult to apply this doctrine in those States where the remedy of the mort- gagee is by a suit at law in obtaining possession of the mortgaged premises, and the equity is foreclosed by mere lapse of time. When he took his mortgage upon two parcels, the mortgagee had a clear right to recover eitlier or both at his election. And it is difficult to see how he should be deprived of this by the mortgagor's making a second mortgage to a stranger of the most desirable of the two parcels, though the other may be of sufficient marketable value to satisfy the mortgage-debt. Besides, it is always in the power of the second mortgagee, by redeeming the first mortgage, to be substituted to the rights of the first mortgagee in respect to both parcels of estate. See Adams, Eq. (4th Am. ed.) 272 and note ; Fisher, Mortg. 395, in which it is also said, " Bat the court will not interfere with the first mort- gagee's right to take his de'ot out of that part of his security which first becomes available, upon the ground that other funds are comprised in his security ; " Wallis V. Woodyear, 2 Jur. N. s. pt. 1, 179. See also Averall v. Wade, Lloyd & G. Cas. temp. Sugden, 252, 255. 409, 412 ; Story, Eq. § 633 ; Adams, Eq. (Am. ed.) 272, n. ; 2 Lead. Cas. in Eq. (Am. ed.) 230; Fisher, Mortg. 395, 396; Reilly v. Mayer, 12 N. J. Eq. 55, 57; Warren v. Warren, 30 Vt. 530, 535 ; Blair v. Ward, 10 N. J. Eq. 119. 1 Bank of So. Car. v. Mitchell, Rice, Eq. 389 ; State Bank v. Roche, 35 Fia. 357 ; s. c. 17 So. Rep. 752. Nor in favor of one entitled to homestead, Scarle v. Chapman, 121 Mass. 19 ; White v. Polleys, 20 Wis. 503 ; nor of a purchaser of a parcel of the mortgaged land, Hawhe v. Snydaker, 86 111. 197. « Cheesebrough v. Millard, 1 Johns. Ch. 409. ' Ayers v. Husted, 15 Conn. 504, 516, per Storrs, J. See Pcttibone v. Stevens, id. 19 ; Butler v. Elliott, id. 187 ; Henshaw v. Wells, 9 Hum])h. 568 ; Evertson v. Booth, 19 Jolms. 486 ; Conrad v. Harrison, 3 Leigh, 532 ; York Steamboat Co. v. Jersey Co., Hopk. Ch. 460 ; Clarke v. Bancroft, 13 Iowa, 320. * Barnes v. Racster, 1 Younge & C. Ch. 401. See Logan v, Anderson, IS B. Mon. 114. 200 MORTGAGES. CHAPTER L. MORTGAGES — OF ACCOUNTING BY THE MORTGAGEE. § 1148. When Tuoitgagee accountable. 1149. How accountable. 1150. For what accountable. 1151. For what accountable, continued. 1152. For what accountable, continued. 1153. When accountable to subsequent incumbrancers. 1154. How rents to be applied. 1155. Items of credit to mortgagee. 1156. Insuring mortgaged premises. 1157. Insurance, continued. 1158. Mortgagee not bound to repair. 1159. His right to charge for services. 1160. When mortgagee accountable for interest. 1161. Application of rents. 1162. Application of rents, continued. 1163. Application of rents, continued. § 1148. When Mortgagee accountable. — If the mortgagor undertakes to exercise his right of redeeming the mortgaged estate, it becomes necessary to ascertain the amount that is due thereon. If the mortgagee shall have been in possession of the premises, it becomes the right of the mortgagor and the duty of the mortgagee that the latter should render an account of his claim, in which he, as a regular rule, charges the amount of the debt and interest secured by the mortgage, and credits the estate with whatever rents and profits thereof he ought to allow, over and above reasonable expenditures for taxes, re- pairs, and other necessary expenses, on account of the estate. Nor will the court allow parol evidence of a stipulation that tlie rents received by the mortgagee in possession shall not be accounted for.^ And where there were a first and second mort- gage in the hands of different mortgagees, and the holder oi the first was in possession, it was held that the second might 1 Coote, Mortg. 353, 354 ; Davis v. Lassiter, 20 Ala. 561. OF ACCOUNTING BY THE MORTGAGEE. 201 hold the first to account for the rents, etc., of the entire estate. And the mortgagee will not be charged with the rents after taking formal possession, if the mortgagor, or any one stand- ing in his place, receive them.^ So if one hold a mortgage, subject to the mortgagor's homestead right, upon premises in possession of a prior mortgagee, who holds independent of such homestead claim, he cannot call on such prior mortgagee to account for profits arising from such right of homestead.^ § 1149. How accountable. — As these proceedings are in equity, this account is taken under the direction of a master in chancery. And the mortgagee in possession is regarded somewhat in the light of a trustee for the mortgagor in respect to the estate, being under obligation to account from the time he takes possession of it,^ But ordinarily mortgagees, by receiving the rents and profits of mortgaged premises, do not become thereby the debtors of the mortgagor, or liable to be sued for the recovery of the same. And wiiere a mortgagee in possession let the premises to another upon an agreement to pay rent and not commit waste, and the mortgagor redeemed, it was held that he could not sue the mortgagee's tenant upon this agreement. The mortgagor's remedy for rents, etc., is in equity, by having the same accounted for in a process to re- deem.* But in Massachusetts, if the mortgagee has received in rents more than the mortgage-debt, the court may, in a suit for redemption, award judgment and execution for the balance due the plaintiff in such suit.^ And the report of ,a master as to the allowance to a mortgagee for repairs and improvements is conclusive, unless a mistake clearly appear.^ §1150. For what accountable. — A mortgagee is always bound to account for the rents he actually receives, and some- times for what it can be shown he might have received. A 1 Bailey v. Myrick, 52 Me. 132 ; Sisson v. Tate, 114 Mass. 497, 501 ; Reynold V. Canal Co., 30 Ark. 520. 2 Sissou V. Tate, 114 Mass. 497, 502, qualifying Richardson v. Wallis, 5 Allen, 78. 8 Coote, Mortg. 355, 366 ; Powell, Mortg. 946, 948 a, n. ; Hunt v. Maynard, 6 Pick. 489 ; Gibson v. Crchore, 5 Pick. 146 ; ante, § 1054. * Seaver v. Durant, 39 Vt. 103. 6 Pub. Stat. c. 181, § 36. 6 Adams v. Brown, 7 Cush. 220 ; Bost. Iron Co. v. King, 2 Cush. 400 ; Mon- tague V. B. & A. R. R., 124 Mass. 242. 202 MORTGAGES. much greater degree of stringency in holding hira to account is applied where he entei's and occupies before condition broken, than where, by the laches of the mortgagor in not paying the debt when due, the mortgagee is compelled to take possession for his own protection. Nor can he charge for repairs beyond what is necessary for the preservation of the estate.^ In Eng- land, the rule as to accounting by the mortgagee seems to be exceedingly stringent. Among the recent cases was one where A mortgaged an estate which contained coal, but no mine had been opened within it. Without taking formal possession, the mortgagee suffered two other persons to enter upon the estate and explore for coal, and work it, they owning mines upon land adjoining the mortgaged estate; and working from their own mine into the premises. Under this permission they extracted large quantities of coal through their own mines from the mort- gaged estates ; and upon the mortgagor undertaking to redeem, the court held the mortgagee accountable for the coal taken, upon the ground that " a mortgagee w^ho holds property in pledge is accountable for it in its integrity ; " " the mortgagee who allows a stranger to deal with the mortgaged property is responsible to the mortgagor in this court for any damage that may accrue by reason of such dealing." And the mortgagee, in this case, was held to account for the full value of the coal taken, with- out any allowance for the cost of working it and getting it to market. 2 § 1151. For what accountable, continued. — Where he takes possession for condition broken, he is only accountable for what he actually receives as rents and profits, or might receive by the exercise of reasonable care and diligence. Nor will he be charged for rents lost without his own fault. And, as a gen- eral proposition, he will not be charged with rents unless he has received them, nor be answerable for waste committed by a tenant by digging up the soil, if done without his knowl- edge and assent, nor for reasonable estovers of wood burned 1 Ruby V. Abyssinian Soc, 15 Me. 306 ; Lash v. Lambert, 15 Minn. 416. By statute he is in such case to account for the clear rents and profits. Me. Rev. Stat. 1883, 0. 90, § 2 ; Mass. Pub. Stat. c. 181, § 23. But occupancy by the mortgagee of premises of which her husband was tenant does not compel her to account for rent. Sanford f. Pierce, 126 Mass. 146. « Hood V. Eastou, 2 Giff. 692. See also Thornej'croft v. Crockett, 16 Sim. 445. OF ACCOUNTING BY THE MORTGAGEE. 203 upon the premises. ^ But in Pennsylvania, it was held that a mortgagee in possession is liable for waste as well as for prof- its of the land.2 His duty, where possession is taken in such a case, is said to be that of a provident owner.^ But he may not turn off a good tenant, or refuse a higher rent, without becoming thereby responsible for the rent lost.* So if he assigns the premises to an insolvent, and puts him into pos- session, he may be charged with the rent if the mortgagor redeems.^ The rule in such cases is stated to be : " Where a mortgagee enters, he is to take the fair rents and profits of the land, but is not bound to engage in any speculations for the benefit of his mortgagor, but is only liable for wilful de- fault." ^ Nor will he be charged with higher rent than that received under a fair bargain, although, after having entered into it with his tenant, the solicitor of the mortgagor might offer him a larger sum.'^ Accordingly, if the premises are sub- ject to a lease, and he enters and claims the rents, he will be charged with the same at the rate at which they are reserved.^ If he enter and occupy the premises himself, he will be charged at the full value of the premises.^ 1 George y. Wood, 11 Allen, 41; Hubbard v. Shaw, 12 Allen, 120; Onder- donk V. Gray, 19 N. J. Ei^. 65 ; Milliken v. Bailey, 61 Me. 316 ; Miller v. Lin- coln, 6 Gray, 556 ; Richardson v. Wallis, 5 Allen, 78 ; Gerrish v. Black, 104 Mass. 400. But he is liable for negligence of his agent, though selected with care, Montague v. B. & A. R. R., 124 Mass. 242. 2 Guthrie v. Kahle, 46 Penn. St. 331 ; Givens v. M'Calmont, 4 Watts, 460. 8 Powell, Mortg. 949 ; Coote, Mortg. 555-557 ; Robertson v. Campbell, 2 Call, 421 ; Anonymous, 1 Vern. 45 ; Hughes v. Williams, 12 Ves. 493 ; Saunders v. Frost, 5 Pick. 259; Shaffer v. Chambers, 6 N. J. Eq. 548; Benham v. Rowe, 2 Cal. 387 ; Van Buren v. Olmstead, 5 Paige, 9 ; Hogan i-. Stone, 1 Ala. 496 ; Sloan V. Frothinghain, 72 Ala. 589 ; Butts v. Broughton, id. 294 ; Baiubridge v. Owen, 2 J. J. Marsh. 463 ; Sparhawk v. Wills, 5 Gray, 423 ; Richardson v. Wallis, 5 Allen, 78 ; Strong v. Blanchard, 4 Allen, 538, 544 ; Montague v. B. & A. R. R., 124 Mass. 242 ; Fisher, Mortg. 491. * Hughes V. Williams, 12 Ves. 493 ; Anonymous, 1 Vern. 45 ; Coote, Jlortg. 557 ; Powell, Mortg. 949 a. 5 Coote, Mortg. 561 ; Hagthorp v. Hook, 1 Gill & J. 270 ; Neale v. Hngthrop, 3 Bland, 551, 590 ; ]\Iiller v. Lincoln, 6 Gray, 556, where the mortgagee was ex- onerated from such a charge for sufficient time to expel the insolvent by legal process, and obtain a responsible tenant. Thayer v. Richards, 19 Pick. 398. 6 Hughes V. Williams, 12 Ves. 493 ; Powell, Mortg. 950 ; Fisher, Mortg. 492. 7 Hubbard v. Shaw, 12 .\llen, 120. 8 Trimleston v. Hamill, 1 Ball & B. 385. 9 Gonlon v. Lewis, 2 Sumn. 143; Trulock v. Robey, 15 Sim. 265; Holabird 204 MORTGAGES. § 1152. For what accountable, continued. — But he will not be charged for rents and profits before he enters/ nor for rents upon permanent improvements made by himself.^ Though it was held otherwise where he had been paid the expense of them by their use,^ and where they have been made by a wrongful occupant, or by a purchaser under the mortgagor.* And where the mortgagee of wnld land cleared and cultivated it, he was charged with the improved rent arising from such clearing.^ And where the mortgagee took a conveyance from the mortgagor and entered under it, the premises then being under attachment at a suit against the mortgagor, upon which the equity of redemption was afterwards sold, it was held that the mortgagee was not accountable for the rents of the prem- ises to the purchaser of the equity until he had entered under the levy.^ § 1153. "When accountable to Subsequent Encumbrancers. — As subsequent incumbrancers are interested, just as the mort- gagor is himself, in the question of how far a prior mortgagee shall be charged, since they may be obliged to redeem from him in order to avail themselves of their security, whatever has been laid down in respect to the mortgagor applies also to them if they undertake to redeem, except so far as want of notice of the mortgagee's title may affect or enlarge their rights. Thus, while a mortgagee in possession under two mortgages may, on a bill by an attaching creditor of the mort- gagor to redeem from the first, apply the rents received to the second only, and compel payment in full of the first ; he can- not do this if the creditor had no notice, express or implied, of the second.^ There may be, moreover, cases where the first mortgagee, by some arrangement with the mortgagor, permits V. Burr, 17 Conn. 556 ; Kellogg v. Rockwell, 19 Conn. 446 ; Trimleston v. Hamill, 1 Ball& B. 379, 385; Montgomery v. Chadvvick, 7 Iowa, 114, 134; Barnett v. Nelson, 54 Iowa, 41 ; Sanders v. Wilson, 34 Vt. 138. 1 Cliase V. Palmer, 25 Me. 341 ; Powell v. Williams, 14 Ala. 476. 2 Bell V. The Mayor, 10 Paige, 49 ; Moore v. Cable, 1 Johns. Ch. 385 ; Mont- gomery V. Chadwick, 7 Iowa, 134. 8 Oivens V. M'Calmont 4 Watts, 460. * Merriam v. Barton, 14 Vt. 501 ; Stoney v. Shultz, 1 Hill, Ch. 465. 5 Morrison v. M'Leod, 2 Ired. Eq. 108. 6 Lamson v. Drake, 105 Mass. 564. 7 Proctor V. Green, 59 N. H. 350. OF ACCOUNTING BY THE MORTGAGEE. 205 him to take the rents, and does not take them himself. And questions have arisen, whether and how far a mortga<^ee who has taken possession, and suffers the mortgagor to take the rents and profits, is chargeable therefor to subsequent mort- gagees. The rule, as given by Powell, is this: "If the mortgagee enter upon the estate, and thereby keep other incumbrancers, of whose liens he has notice, out, he will be charged with all the profits he hath or might have received after his entry." " And if a mortgagee permit the mortgagor to make use of his incumbrance to keep out other creditors, he will be charged with the profits from the time that they would have had a remedy, had it not been for his interposition ; for equity will not suffer a man to make use of his securities to protect a debtor from the just demands of his creditors." And Coote says ; " If a mortgagee acts mala fide, either with regard to subsequent incumbrancers or creditors of the mortgagor, he will be personally responsible ; as, for example, if he permit the mortgagor to make use of his mortgage as the first incum- brancer to keep out other creditors." ^ In Massachusetts, how- ever, it was held in one case, that where a purchaser of the equity of redemption, in order to prevent his creditors from attaching the crops, gave the assignee of the first mortgage formal possession, and a certificate, that the mortgagee had taken peaceable possession, was indorsed on the assigned mort- gage, and recorded in the manner required by law for fore- closure ; 2 yet, as the holder of the equity remained in actual possession, the first mortgagee should not, on a bill by the second mortgagee to redeem, be charged with the rents from the time of his having made his entry and recorded the cer- tificate thereof. No case is cited by the court sustaining their opinion, though reference is made to the language of the statute.^ It would seem, therefore, that the principle, that a 1 Powell, Mortg. 949 b, and 951 a ; Coote, Mortg. 557 ; Flint. Keal Prop. 238 ; 2 Cruise, Dig. 88 ; Coppring v. Cook, 1 Vern. 270 ; Chapman v. Tanner, id. 267 ; Gibson v. Crehore, 5 Pick. 146 ; Acland v. Gaisford, 2 Madd. 28. 2 By statute in Massachusetts, one mode of foreclosure is by a peaceable entry, and holding for three years after certificate of such entry duly filed in the registry of deeds. Mass. Pub. Stat. 1881, c. 181, §§ 1, 2. 3 Charles v. Dunbar, 4 Met. 498. See 7 Law Piep. 22. The conclusion of the opinion is in these words: " Nor do we think that the purpose of the formal entry, 206 MORTGAGEES. mortgagee may take possession of mortgaged premises for the purpose of preventing the creditors of the mortgagor attaching the crops, without thereby becoming liable to account for the rents to after-mortgagees, who, after yielding to the statute evidence of the first mortgagee's possession, may seek to re- deem, is to be regarded as the local law of Massachusetts.^ § 1154. How Rents to be applied. — It was, on the other hand, held by the same court, that if one owns the equity of redemption of a mortgaged estate, and also holds one of several mortgages upon the same, and makes an entry under his mort- gage and receives the rents of the premises, he is not at liberty to say that he takes them as mortgagor, but shall account for them as mortgagee to any one redeeming the estate. ^ And a second mortgagee, having satisfied a prior mortgage, upon which the mortgagee has received rents, may, after notice, claim of such first mortgagee any surplus of rents remaining in his hands not yet fully accounted for to the mortgagor, so far as the same are necessary to satisfy his own mortgage.^ If a mortgagee continue to hold possession, or receive rents of the estate after his debt has been satisfied, he will be account- able for such rent, together with interest thereon.^ § 1155. Items of Credit to Mortgagee. — Among the items of charge which a mortgagee in possession may make against the estate, when called upon to render an account for purposes of redemption, is the expense of keeping the premises in repair. But this does not extend to additions to the estate, nor to new and ornamental improvements ; and, even as to repairs, they namely, to aid the mortgagor in withholding from the attachment of other creditors the produce of the farm, affects the present question. If the possession was not in the mortgagee, the creditors might have made valid attachments of the produce of the farm. They did not interfere, however ; and we think the purpose of the first mortgagee's entry does not enlarge the rights of the second mortgagee as against tlie first, nor authorize the second to charge the first with the use and income of tlie premises during the time that the mortgagor actually retained the possession." 1 In Richardson i-. Wallis, 5 Allen, 78, 80, the court seemed inclined to limit the doctrine of Charles v. Dunbar to cases of simple entry by the mortgagee for purposes of foreclosure, without implying that this may be successfully made an instrument of fraud. 3 Gibson v. Crehore, 5 Pick. 146. 8 Gordon v. Lewis, 2 Sumn. 143. * Powell, Alortg. 948 a, note. OP ACCOUNTING BY THE MORTGAGEE. 207 must be such as benefit it.^ The rule given in the court of Pennsylvania is, that he may not charge for costly or per- manent improvements without the assent of the mortgagor, but would be restricted to such only as would preserve the estate from dilapidation; 2 unless additions like buildings are put up on the premises by the mortgagees, by the consent and agreement of the mortgagor that the mortgagee might hold them for security under the mortgage.^ The test as to allow- ing for improvements seems to be, wiiether they are necessary to the convenient occupation of the estate. Tims the cost of an aqueduct was allowed which was necessary for supplying water ; ^ while expenses in merely increasing the speed of a mill, but not necessary to its operating in its accustomed man- ner, were disallowed.^ In one case, a mortgagee was allowed for large sums expended in working a mine which he had a right to work.^ In another, expenses incurred in opening a mine were disallowed.'^ While in another, the mortgagee in possession, having cleared land and erected a mill thereon, and having derived profit enough from running it to reimburse him for his expenses, was charged with the rent of the premises in their improved condition.^ The rules upon this subject do not seem to be uniform. In some of the States, a mortgagee is allowed to charge for beneficial and lasting improvements.^ And this is sometimes the case even in England. ^*^ And such 1 Lowndes v. Chisolm, 2 McCoid, Ch. 455 ; Hagthorp v. Hook, 1 Gill & J. 270 ; Quin V. Brittain, Hoflf. Ch. 353 ; Russell v. Blake, 2 Pick. 505 ; Reed v. Reed, 10 Pick. 398 ; Moore v. Cable, 1 Jolms. Ch. 385, where a claim for clearing wild lands was disallowed ; Dougherty v. McOolgan, 6 Gill & J. 275 ; Hopkins v. Stephenson, 1 J. J. Marsli. 341 ; Woodward v. Phillips, 14 Gray, 132 ; Strong v. Blanehard, 4 Allen, 538; Mass. Pub. Stat. 1881, c. 181, §23; Fisher, Mortg. 495; Jones, Mortg. §§ 1126-1131. 2 Harper's App., 64 Penn. St. 315. 8 Crafts V. Crafts, 13 Gray, 360, 363. * Saunders v. Frost, 5 Pick. 259 ; McCarron v. Cassidy, 18 Ark. 34 ; Mickles v, Dillaye, 17 N. Y. 80; Gordon v. Lewi.s, 2 Sumn. 143; Lowndes v. Chisolm, 2 Mc- Cord, Ch. 455 ; McConnel v. Holobush, 11 111. 61 ; Sparhawk v. Wills, 5 Gray, 423; Tharp v. Feltz, 6 B. Mon. 6, 15; McCumber v. Gihnan, 15 111. 381. 6 Clark V. Smith, 1 N. J. Eq. 121. « Norton v. Cooper, 39 E. L. & Eq. 130. ^ Thorneycroft v. Crockett, 16 Sim. 445. * Givens v. M'Calniont, 4 Watts, 460. 9 Bollinger v. Chouteau, 20 Mo. 89 ; Ford v. Philpot, 5 Harr. & J. 312. w Exton V. Greaves, 1 Vern. 138 ; Talbot v. Brodhill, id. 183, n. 208 MORTGAGES. would probably be uniformly the rule where the mortgagee in making such improvements supposed himself to be the absolute owner,^ or the person who made them was an innocent pur- chaser,^ or did it by consent and agreement of the mortgagor,^ Or where the mortgagor, knowing they were being made, and having an opportunity so to do, made no objection.* If a mort- gagee in possession is subjected to expenses in defending the title to the estate, he may charge for any sum reasonably in- curred in so doing,^ including counsel fees necessarily paid in collecting the rents and profits of the premises, but not in pros- ecuting his claim against the mortgagor,^ and for discharging prior incumbrances.' But a stipulation in a mortgage was held good whereby the mortgagee might charge a reasonable attor- ney's fee, if he was obliged to resort to legal process to fore- close the mortgage.^ So he may charge for the sums paid for taxes upon the premises, as well as for assessments which he has been obliged to pay in order to preserve the security.^ If, however, the land be lost by failure to pay the tax upon it, the mortgagor cannot charge the loss upon the mortgagee.^^ But as a general proposition, if no provision is made in the mort- gage for insuring the premises, a mortgagee has no right to charge in his account for premiums paid for effecting insur- ance upon the mortgaged premises.^^ In Slee v. Manhattan Co., 1 McConnel v. Hololiush, 11 111. 61 ; Neale v. Hagthrop, 3 Bland, 551, 590 ; Thome v. Newman, Cas. temp. Finch, 38 ; Mickles v. Dillaye, 17 N. Y. 80 ; Barnard V. Jennison, 27 ^lich. 230. 2 Bradley v. Snyder, 14 111. 263. 8 Cazenove v. Cutler, 4 Met. 246 ; McSorley v. Larissa, 100 Mass. 270. * Montgomery v. Chadwick, 7 Iowa, 114, 135. 5 Godfrey v. Watson, 3 Atk. 518; Powell, Mortg. 986, n.; Hagthorp v. Hook, 1 Gill & J. 270 ; Coote, Mortg. 354 ; Clark v. Smith, 1 N. J. Eq. 121 ; Miller v. Whit- tier, 36 Me. 577; Riddle v. Bowman, 27 N. H. 236 ; McCumber w. Gilman, 15 111. 381. 6 Hubbard v. Shaw, 12 Allen, 120 ; Bost, etc. R. R. v. Haven, 8 Allen, 359. T Page V. Foster, 7 N. H. 392 ; Fisher, Mortg. 494. 8 Weatherby v. Smith, 30 Iowa, 131. 9 Faure y. Winans, Hopk. Ch. 283 ; Williams v. Hilton, 35 Me. 547; Kortright V. Cady, 23 Barb. 490 ; Bollinger v. Chouteau, 20 Mo. 89 ; Mix v. Hotchkiss, 14 Conn. 32 ; Eagle Ins. Co. v. Pell, 2 Edw. Ch. 631 ; Robinson v. Ryan, 25 N. Y. 320, 327 : Silver Lake Bk. v. North, 4 Johns. Ch. 370 ; Harper v. Ely, 70 111. 581. But aliter where the mortgagee was liable for the tax on his covenant against incum- brances. Davis V. Bean, 114 Mass. 358. 1" Harvie v. Banks, 1 Rand. 408. " Saunders v. Frost, 5 Pick. 259 ; Dobson y. Land, 8 Hare, 216 ; White v. Brown, OF ACCOUNTING BY THE MORTGAGEE. 209 where the mortgagees had long been in possession of the prem- ises, the court allowed them to charge for insurance and taxes, and money paid for repairs, " under," as they say, " the peculiar circumstances of the case." ^ § 1156. Insuring Mortgaged Premises. — But if the condition of the mortgage requires the mortgagor to keep the premises insured for the benefit of the mortgagee, and he fails to do so, the mortgagee may cause insurance to be made, and charge the premium to his account with the estate.^ In such a case, both the mortgagor and the mortgagee may insure their respective interests. And if the mortgagor insures his, and the property is destroyed, the mortgagee may not claim a right to be sub- rogated to the benefit of the insurance, unless there be a covenant on the part of the mortgagor to keep the premises insured for the benefit of the mortgagee, or that the insurance- money should go to repair them if destroyed.^ A mortgagor has an insurable interest in the full value of the estate mort- gaged.^ So if the mortgagee insure his interest, and there is a loss, the premium having been paid out of his own funds, he is not bound to account to the mortgagor for any part of the insurance-money, nor to apply it in payment of his debt which is secured by the mortgage.^ But if insurance be effected at the request and cost of the mortgagor, and for the benefit of the mortgagee and mortgagor, the latter has a right to have the money received applied in discharge of the indebtedness ;^ and in such case, if there be any surplus beyond satisfying the mortgage-debt, the mortgagee holds it in trust for the mortgagor or his assigns. And in such case, if the mort- 2 Cush. 412 ; King i'. State Ins. Co., 7 Cash. 1 ; Clark v. Smith, 1 N. J. Eq. 121 ; Fisher, Mortg. 493 ; Bost., etc. R. R. v. Haven, 8 Allen, 359. 1 1 Paige, 81. 2 Fowley v. Palmer, 5 Gray, 549 ; Nichols v. Baxter, 5 R. I. 491. 3 Fanre v. Winans, Hopk. Ch. 283 ; De Forest v. Fulton lus. Co., 1 Hall, 84, 103 ; Carter v. Rockett, 8 Paige, 437; Vandegraaff y. Medlock, 3 Port. 389; Thomas V. Vonkapff, 6 Gill & J. 372 ; Vernou v. Smith, 5 B. & Aid. 1; Nichols v. Baxter, 5 R. I. 491. * Strong V. Manuf. Ins. Co., 10 Pick. 40 ; Nichols v. Baxter, supra. 5 King V. State Ins. Co., 7 Cash. 1 ; iEtna Ins. Co. v. Tyler, 16 Wend. 385 ; Carpenter v. Prov. Ins. Co., 16 Pet. 495; White v. Brown, 2 Cush. 412 ; Russell V. Southard, 12 How. 139. ^ Concord, etc. Ins. Co. v. Woodbury, 45 Me. 447; Gordon v. Ware Sav. Bk., 115 Mass. 588. VOL. II. — 14 210 MORTGAGES. gagor sell his interest in the estate, and a loss happen, the purchaser may require the mortgagee to collect and apply the insurance-money towards the debt, and cancel it so far as it pays.^ The insurable interest of a mortgagee is measured by the amount of his claim.^ But it is held by many courts that if a mortgagee recovers to his own use upon a policy of insur- ance taken in his own name, where the premium has been paid by himself, the insurer is entitled to be subrogated to the right of such mortgagee, in respect to the estate and the mortgage-debt, for an amount corresponding to the insurance paid ; ^ though this is denied to be law in Massachusetts.* * So * Note. — The case of King v. The State Mat. Fire Ins. Co., 7 Cush. 1, involves a principle so practical in its application, and so ably considei'ed by the court, that it seems to be proper to give some of the more prominent points contained in the opinion of Shaw, C. J. : — " We understand from the statement, and from the policy which is made part of it, that the plaintiff (the mortgagee) made the insurance in his own name, and for his own benefit, not describing his interest as that of mortgagee, and paid the premium out of his own funds." The opinion then goes on to state that the defendants (the Insurance Company) admit the loss by fire, but claim the right of having an assignment of the plaintiffs interest, or such part of it as the amount they would have to pay would bear to the whole mortgage-debt, made to them. The case turned upon the question, whether the defendants had a right to have such assignment made. " The court are of opinion that tlif plaintiff, having insured for his own benefit, and paid the premium out of his own funds, and the loss having occurred by the peril insured against, he has, prima facie, a good right to recover ; and, having the same insurable interest at the time of the loss which he had at the time of the contract of insurance, he is entitled to recover a total loss. The court are further of opinion, that if the defendants could have any claim, should the plaintiff hereafter recover his debt in full of the mortgagor, it must be purely equitable ; that the defendants can have no claim until such money is recovered, if at all." "We are inclined to the opinion, both upon principle and authority, that where a mortgagee causes insur- ance to be made for his own benefit, paying the premium from his own funds, in case a loss occurs before his debt is paid, he has a right to receive the total loss for his own benefit ; that he is not bound to account to the mortgagor for any ^ Graves v. Hampd. Ins. Co., 10 Allen, 281. 2 Cases cited above. See also Sussex Ins. Co. v. Woodruff, 26 N. J. 541. 3 Sussex Ins. Co. v. Woodruff, supra ; Smith v. Columbia Ins. Co., 17 Penn. St. 253 ; Kernochan v. N. Y. Bowery Ins. Co., 17 N. Y. 428. * King V. State Ins. Co., 7 Cush. 1. See Dobson v. Land, 8 Hare, 216 ; Fisher, Mortg. 494 ; Suff. Ins. Co. v. Boj'den, 9 Allen, 123, affirming King v. State Ins. Co. ; Graves v. Hampd. Ins. Co., 10 Allen, 281 ; Clark v. Wilson, 103 Mass. 219, 221. It is, however, admitted that the insurers may be subrogated to any action of tort brought for the loss. Merc. Mar. Ins. Co. i;. Clark, 118 Mass. 288. OF ACCOUNTING BY THE MORTGAGKK. 211 where one in Vermont, who held an insurance policy against accidents, was injured by reason of a defect in the highway, and for which he recovered damages under his policy from the insurance company, it was iicld that this recovery was no bar to his action against the town to recover damages for the injury sustained by him.^ § 1157. Insurance, continued. — An alienation of insured premises usually vacates a policy by its terms. And by alien- ation is meant an act whereby one man transfers the property and possession of land or other things to another.^ And ques- part of the money so recovered as a part of tlie mortgage-debt ; it is not a pay- ment in whole or in part ; but he still has a right to recover his whole debt of the mortgagor. And so, on the other hand, when the debt is thus paid by the debtor, the money is not, in law or equity, the money of the insurer who has thus paid the loss, or money paid for his use." "There is no privity of contract or estate, in fact or in law, between the in- surer and the mortgagor, but each has a separate and independent contract with the mortgagee. On what ground, then, can the money thus jiaid by the insurer to the mortgagee be claimed by the mortgagor ? But if he cannot, it seerns, a fortiori, that the insurer cannot claim to charge his loss upon the mortgagor, which he would do if he were entitled to an assignment of the mortgage-debt, either in full ov pro tanto." "What, then, is there inequitable on the part of the mortgagee towards either party in holding both sums (the debt and the insurance money) ? They are both due upon valid contracts with him, made upon adequate considerations paid by himself. There is nothing inequitable to the debtor, for he pays no more than he originally received in money loaned ; nor to the underwriter, for he has only paid upon a risk voluntarily taken, for which he was paid by the mortgagee a full and satisfactory equivalent." "On a view of the whole question, the court are of opinion that a mortgagee who gets insurance for himself, when the insurance is general upon the property, without limiting it in terms to his interest as mortgagee, but when in point of fact his only insurable interest is that of a mortgagee, in case of a loss by fire before the payment of the debt and discharge of the mortgage, has a right to recover the amount of the loss for his own use." But the insurable interest of the mortgagee is defeated by a payment of the debt by the mortgagor. Graves v. Hampden Ins. Co., 10 Allen, 281, 283. The court also refer to the case of Dobson v. Land, 8 Hare, 216, and the com- ments upon it in the London Jurist, contained in 13 Law Reporter, 247, wherein a point stated in another part of this work was sustained, that a mortgagee has no right to cause the premises to be insured, and charge the same to the estate, in the absence of an express agreement to that effect by the mortgagor when making the mortgage. See Fisher, Mortg. 494. 1 Harding v. Townshend, 43 Vt. 536 ; Clark v. Wilson, 103 Mass. 219. 2 Boyd V. Cudderback, 31 111. 113, 119. 212 MORTGAGES. tions have arisen how far this principle would apply where the insurance has been effected by a mortgagor intended for the security of the mortgagee of the premises insured. Where this was done by the mortgagor assigning the policy to the mortgagee, who afterwards purchased the mortgagor's interest in the premises, it was held to vacate it.^ So where the mortgagor assigned the policy to the mortgagee, and sub- sequently aliened the estate to a third party, it was held to vacate the policy .^ But where the assignment was made to the mortgagee by consent of the company, who took from the assignee an agreement to pay subsequent instalments, etc., it was held that a subsequent alienation would not defeat the policy in the assignee's hands.^ Where there is a condition in the mortgage or contract between the parties that the mort- gagor shall keep the premises insured for the benefit of the mortgagee, and he fails to do so, the mortgagee may insure and charge the premium to the estate, though in form the policy be for whom it may concern, and payable to the mort- gagee.* And Avhere the mortgagee is trustee for the mortgagor in respect to the insurance upon the premises, as where the mortgagor effects the insurance payable to the mortgagee, or the mortgagee effects it at the mortgagor's expense and by his consent, whatever is received by the mortgagee thereon must be accounted for towards the mortgage-debt.^ If a policy of insurance be effected by a mortgagor, payable in case of loss to the mortgagee, the mortgagor cannot sue alone for the loss unless he has paid the mortgage in full. The action should be in the joint names of mortgagor and mortgagee, or in that of the mortgagee alone.^ § 1158. Mortgagee not bound to repair. — A mortgagee in possession is not bound to incur expense to repair or rebuild dilapidated buildings, or those injured, without his fault, upon 1 Maconiber v. Cambridge Ins. Co., 8 Cash. 133 ; Bilson e. Manuf. Ins. Co., IT. S. C. C. Pa., 7 Am. Law Reg. 661. - Grosveuor v. Atlantic Ins. Co., 17 N. Y. 391. 3 Foster v. Eq. Ins. Co., 2 Gray, 216 ; Nichols v. Baxter, 5 R. I. 491. ♦ Fowley v. Palmer, 5 Gray, 549. See Mix v. Hotchkiss, 14 Conn. 32. 5 King V. State Ins. Co. , 7 Gush. 1 ; Fowley v. Palmer, 5 Gray, 549 ; Andrews, Ex parte, 2 Rose, 410 ; Larrabee v. Lumbert, 32 Me. 97 ; Graves v. Harapd. Ins. Co., 10 Allen, 382. * Enuis V. Harmony Ins. Co., 3 Bosw. 516. OF ACCOUNTING BY THE MORTGAGEE. 213 the premises.' But he may, if he see fit, rebuild iii place of old ones gone to decay, for similar uses and purposes, and charge the expense to the estate in rendering his account.^ And it is generally true, that the mortgagee, if in possession, is bound to keep the premises in proper repair.^ § 1159. His Right to charge for Services. — In respect to a mortgagee's charging for personal services in taking care of the estate, collecting the rents, etc., while in possession, it is held in England that he may not do it in any case except where it is necessary to employ a bailiff to do the business.* And the same rule is adopted in New York and Kentucky,^ while in Massachusetts he may charge a commission (in one case five per cent was allowed) upon the amount of the rents he may collect of others.^ He cannot, if he occupy the premises him- self, charge any commission for his care and trouble.' A sim- ilar rule as to allowing a mortgagee to charge for collecting rents applies in Connecticut, Virginia, and Pennsylvania, and probably in other States.^ § 1160. When Mortgagee accountable for Interest. — In addi- tion to the sums for which a mortgagee may be chargeable, as above explained, courts sometimes charge him with interest upon the money he may receive, and in special cases even make annual rests in stating his account. The case of his receiving rents after his debt has been satisfied, and being 1 Campbell v. Macomb, 4 Johns. Ch. .534 ; Dexter v. Arnold, 2 Sumn. 108, 125 ; Gordon v. Lewis, id. 143 ; Russel v. Smithies, 1 Anst. 96 ; Rowe v. Wood, 2 Jac. & W. 553 ; McCumber v. Gilman, 15 111. 381. 2 Marshall v. Cave, reported Powell, Mortg. 957 a ; Fisher, Mortg. 498. 8 Shaeffer v. Chambers, 6 N. J. Ei^. 548 ; Coote, Mortg. 353 ; Godfrey v.- Watson, 3 Atk. 517. * Godfrey v. Watson, 3 Atk. 517 ; Bonithon v. Hockmore, 1 Vern. 316 ; Gilbert V. Dyneley, 3 Mann, & G. 12 ; Chambers v. Gold win, 5 Ves. 834 ; Langstaffe v. Fenwick, 10 Ves. 405 ; Fisher, Mortg. 499. 6 Breckenridge v. Brooks, 2 A. K. Marsh. 335; Moore v. Cable, 1 Johns. Ch. 385. 6 Gibson v. Crehore, 5 Pick. 146, 161 ; Tucker v. Buffum, 16 Pick. 46. Though five per cent is not a fixed rate, Adams v. Brown, 7 Gush. 220 ; and more was allowed in Bost. & W. R. R. v. Haven, 8 Allen, 359, 361. That percentage was allowed for moneys collected, but not upon moneys paid out, in Gerrish v. Pjlack, 104 Mass. 400 ; or rents charged, iu Montague v. B. k A. R. R., 124 Mass. 242. 7 Eaton V. Simonds, 14 Pick. 98. 8 Waterman v. Curtis, 26 Conn. 241 ; Granberry t;. Cranberry, 1 Wash. (Va., 246 ; Wilson v. Wilson, 3 Binn. 557. 214 MORTGAGES. charged interest, has already been stated ; ^ and ordinarily, in stating the account, the aggregate of debt and interest thereon will be deducted from the aggregate of the rents received, with- out allowing annual rests.^ And such is the rule in Kentucky ; ^ while in Massachusetts, if the amount of the rents be consid- erable, and the interest on the debt is in terms payable semi- annually, the court will make even semi-annual rests in making up the amount.* The general rule is, that compound interest is not allowed;^ though, if the mortgagor has allowed it, he cannot revoke its allowance.^ § 1161. Application of Rents. — Where the mortgagee holds the premises by virtue of several mortgages, the law comes in and applies the rents he may receive while in possession, in the order of their priority ; nor can he at his election apply them upon a junior mortgage while holding a prior one." § 1162. Application of Rents, continued. — If the mortgagee in possession shall have made repairs upon the premises, and received rents, in making up his account he has a right to ap- ply these rents, first to satisfy the expenses incurred for such repairs, and also towards the taxes paid by him. If there is any balance of rent then remaining, it is to be applied towards the accruing interest upon the mortgage-debt. No part of the rents will be applied to the principal unless they exceed the charges for repairs, taxes, and interest, as above stated. If in any year the rents exceed the interest and charges, there will be a rest made at the end of the year, as the principal will thereby be diminished, and interest be computed afterwards on the balance.^ But rests will not ordinarily be allowed to be made when the effect will be to give interest upon any part of 1 Powell, Mortg. 959, n. ; Gordon v. Lewis, 2 Sumn. 143 ; Hogan v. Stone, 1 Ala. 496. 2 Powell, Mortg. 958 a, n. 3 Breckenridge v. Brooks, 2 A. K. Marsh. 335, where he manages the estate himself. * Gibson v. Crehore, 5 Pick. 146. 5 Dunshee v. Parmelee, 19 Vt. 172 ; Kittredge v. McLaughlin, 38 Me. 513. s Booker v. Gregory, 7 B. Mon. 439. T Saunders v. Frost, 5 Pick. 259. 8 Shaeffer v. Chambers, 6 N. .J. Eq. 548 ; Reed v. Reed, 10 Pick. 398; Gibson V. Prehore, 5 Pick. 146; Saunders v. Frost, 5 Pick. 259; Coote, Mortg. 555; Wilson i;. Cluer, 3 Beav. 136 ; Story, E^i. Jur. § 1016. OF ACCOUNTING BY THE MORTGAGEE. 215 the prior interest,^ even in favor of a purchaser of a mort- gage who had paid the full amount of the mortgage-debt and interest, computed to the day of his purchase.^ § 1163. Application of Rents, continued.- — A mortgagee in possession receiving rents must apply them to the mortgage- debt, and may not apply them to other claims,^ even though the mortgagor agreed with the mortgagee when he took pos- session that he might apply them towards another claim on the same land, the mortgagor having become insolvent before any rents had fallen due after possession taken.^ But a mortgagee is not bound to pay over any part of the rents or profits of the estate, so long as any part of his mortgage-debt remains unpaid.^ 1 Finch V. Brown, 3 Beav. 70 ; Blackburn v. Warwick, 2 Yoimge & C. 92 ; Horlock V. Smith, 1 Coll. 287. 2 Bost. Iron Co. i;. King, 2 Cush. 400. 3 Wood V. Felton, 9 Pick. 171 ; Harrison v. Wyse, 24 Conn. 1. ^ Hilliard v. Allen, 4 Cush. 532, 537. 6 Bell V. The Mayor, 10 Paige, 49. 216 MORTGAGES. CHAPTER LI. MORTGAGES — OF FORECLOSURE. §1164. When applied. 1165. How applied. 1166. Effect of foreclosure, 1167. Kedemption after foreclosure. 1168. Mortgagor's liability for deficiency. 1169. How barred or waived. 1170. Foreclosure by entry in Massachusetts and Maine. 1171. Effect of foreclosure by entry. 1172. Mortgagee's rights of action. 1173. Right to pursue concurrent remedies. 1174. Unsatisfied balance after foreclosure. 1175. Position of mortgagor's lessee upon foreclosure. 1176. Parties to foreclosure proceedings. 1177. Conclusiveness of the judgment. 1178. Foreclosure after mortgagee's death. 1179^ Trying adverse title — Multifariousness. 1180. Decrees against infants. 1181. Decrees against married women. 1182. Right of surety mortgagee to foreclose. 1183. Effect of foreclosure upon the estate. 1184. Effect of foreclosure upon the debt. § 1164. "When applied. — There is, in respect to all mort- gages, a process by which all further right to redeem is de- feated and lost to the mortgagor, and the estate becomes the absolute property of the mortgagee or of a purchaser ; and this is called a foreclosure. Like the right of redemption by the mortgagor, the right of process of foreclosure by the mortgagee may be barred and lost by limitation from the lapse of time. Thus, if the mortgagor has been suffered to occupy the mort- gaged premises for more than twenty years after the debt is due and payable, without any entry or claim by the mortgagee, it will bar the claim of the latter, on the presumption that he has been paid.^ So the mortgagee's right to foreclose his mort- 1 Howland v. Shurtleff, 2 Met. 26; ante, § 1118. OF FORECLOSURE. 217 gage may be defeated by a tender of the debt by the mort- gagor in time to save a forfeiture. Where that is done, the mortgage is extinguished ; and if the mortgagee after that brings process of foreclosure, the mortgagor may avail him- self of such tender in bar without the necessity of bringing the money into court.^ § 1165. How applied. — There are various modes of effect- ing a foreclosure in the different States.^ And an agreement in the mortgage itself that it should be foreclosed in any other way than that prescribed by law would be void.^ The process of foreclosure must conform to the law of the State in which the land is situate, in order to be of any validity or effect.* In England, one mode is by a bill in equity praying for a fore- closure, upon which the court, through a master, ascertains in the manner above described the amount which is due upon the mortgage, and then by decree, that unless the one having the equity of redemption shall within a prescribed term, usually six months, pay that sum and redeem the estate, he shall be for ever barred from redeeming.^ This is called a strict foreclosure. But by a recent statute,^ the court may always direct a sale of the property at the request of either party, instead of decreeing a strict foreclosure.'^ The usual mode of foreclosure in Illinois is by having the estate sold, giving the mortgagee a certain time in which to redeem from the sale. But it is competent for the court, if the property is an inadequate security for the debt, to apply the doctrine of strict foreclosure, making the sale absolute if the mortgagor fails to redeem within a pre- 1 Van Husan v. Kanouse, 13 Mich. 303. 2 For a full presentation of the several modes of foreclosure, viz. entry, writ of entry, scire facias, strict foreclosure, suit in equity, etc., with all their details in regard to parties and procedure, space would be required disproportionate to the limits of this work. As these have been fully and satisfactorily discussed by Mr. Jones, in his able and comprehensive Treatise on Mortgages, §§ 1255-1721, the reader is referred to that work for their further examination. Cf. Lord v. Crowell, 75 Me. 399. 8 Chase v. McLellan, 49 Me. 375. < Elliot V. Wood, 45 N. Y. 71. 6 Daniell, Ch. Pract. 1204 ; Coote, Mortg. 511. « 15 & 16 Vict. c. 86, § 48. ' Wms. Real Prop. 356. The reader will find a statement of the respective advantages of the one form or the other of defeating the right of redemption in Lansing v. Goelet, 9 Cow. 346, 382, by Chancellor Joues. 218 MORTGAGES. scribed time.^ In Michigan, if one holds several mortgages to secure the same debt, he may foreclose them in succession till his debt is satisfied.^ It seems to be essential to the validity of a decree for strict foreclosure, that it should give the mort- gagor a certain time within which, after tlie decree, he may re- deem the premises. And this doctrine is applied in Kansas, unless there be a suit by the mortgagee against the mortgagor to ascer- tain the amount due ; and the court render a special order that the premises shall be sold w^on fieri facias , as may be done.^ § 1166. Effect of Foreclosure. — In a strict foreclosure the mortgagee takes the whole estate, the effect of such a proceed- ing being merely to extinguish the right of redemption.* So where, instead of a strict foreclosure, the estate is sold to the highest bidder by a master, as may be done in New York, the effect is the same in cutting off and extinguishing the equity of redemption, and leaves the title conveyed by the mortgage absolute.^ But it seems that a strict foreclosure may be re- sorted to in New York ; but it is not favored by the courts, being regarded as a severe remedy.^ But the owner of the equity has a right to the rents until the purchaser under the decree is entitled to possession of the premises under a deed duly delivered.''" When the mortgage is foreclosed by sale under a decree of the court, the mortgagor's title passes to the purchaser, upon the consummation of the sale by the master's or sheriff's deed, and the court of equity under whose decree the sale was made will enforce it by giving the purchaser possession.^ So where the mortgage is foreclosed, as in Penn- sylvania, by a sheriff's sale, the title of the purchaser relates back to the date of the mortgage.^ Foreclosure in Pennsylvania 1 Farrell v. Parlier, 50 111. 274, 276 ; Sheldon v. Patterson, 55 111. 507. 2 McKinney v. Miller, 19 Mich. 142, 152. 3 Clark V. Reyburn, 8 Wall. 318, 32-3. 4 Brainard v. Cooper, 10 N. Y. 356 ; Bradley v. Chest. Vail. R. E., 36 Penn. St. 141. 5 Packer v. Roch. R. R., 17 N. Y. 283 ; Lewis v. Smith, 9 X. Y. 502, 515. So in Iowa. Kramer v. Rebman, 9 Iowa, 114 ; Shricker v. Field, id. 366. 6 Belles V. Duff, 43 N. Y. 469, 474. 7 Clason V. Corley, 5 Sandf. 447 ; Whalin v. White, 25 N. Y. 462. « Montgomery v. Tutt, 11 Cal. 190 ; Kershaw v. Thompson, 4 Johns. Ch. 609. 9 De Haven v. Landell, 31 Penn. St. 120. See also Shores v. Scott Riv. Co., 21 Cal. 135, 139 ; Kenyon v. Schreck, 52 111. 382. OF FORECLOSURE. 219 and Illinois is effected by a process of scire facias, and a judgment and sale of the estate thereon, which passes an unincumbered title to the purchaser.^ And in New York, the mortgagor's right of redemption is foreclosed by the sale by the master, and is not suspended till the deed is actually delivered, nor is a deed essential to such foreclosure.^ And in a like case and proceedings in Wisconsin, the sale made under the decree of court passes the entire interest of the mort- gagor and mortgagee.^ If the mortgage is foreclosed, the estate which was conditional and defeasible in its creation becomes absolute, and the incidents, privileges, and covenants attached to it, unchanged by anything which the mortgagor or any other person may have done in the mean time, remain attached to it as if the original conveyance had been absolute.* But a sale upon a junior mortgage cannot affect the rights of a prior mortgagee. It can only be subordinate to any prior and paramount security.^ By a strict foreclosure, the mortga- gee acquires no new estate or rights. It merely cuts off the right of the mortgagor to the estate, and interposes a perpetual bar against the party foreclosed. He would not therefore acquire a right of the mortgagor to redeem from a second mortgage. His rights, in this respect, would differ from what they would be upon a judicial sale, or an express grant from the mortgagor.^ So where the foreclosure is by sale of the premises, as in New York, and the mortgage embraces a large tract of land on which the mortgagor, after making such mort- gage, laid out a village into house-lots, with streets, etc., and sold the same to sundry individuals, the mortgagee, in seeking to foreclose them, would not be obliged to have the premises sold in parcels as laid out, or to abandon his rights as mort- gagee to the land covered by the streets, etc.^ But where the 1 Hinds V. Allen, 34 Conn. 185, 193 ; Hosie v. Gray, 71 Penu. St. 198 ; Jones, Mortg. § 1355; Osgood i;. Stevens, 25 111. 89. And want of consideration cannot be shown. Fitzgerald v. Forristal, 48 111. 228. The proceeding is strictly at law. Tucker v. Conwell, 67 111. 552. 2 Tuthill V. Tracy, 31 N. Y. 157, 162 ; Brown v. Frost, 10 Paige, 243. e Tallman v. Ely, 6 Wis. 244 ; Hodson v. Treat, 7 Wis. 263, 278. * Ritger v. Parker, 8 Cush. 145. See Burton v. Lies, 21 Cal. 91. 5 Galveston R. R. y.Cowdrey, 11 Wall. 459, 476; Walcott v. Spencer, 14 Mass. 409. 6 Goodman v. White, 26 Conn. 317. T Griswold v. Fowler, 24 Barb. 135. 220 MORTGAGES. mortgage covered a large and valuable estate, and, upon mak- ing sale of it to foreclose it, a junior mortgagee requested the prior mortgagee to sell only so much of the estate as was sufficient to satisfy his claim, and offered to bid and pay for a part thereof indicated, enough to satisfy the first mortgage, but this was declined, and the whole estate was sold, it was held to be irregular and invalid.^ If the decree be for a strict fore- closure, the mortgagee, being out of possession, is obliged to resort to an action of ejectment to recover possession ; whereas, if it be by sale under a judicial decree, the court may compel the mortgagor to surrender possession.^ But in what has been said, it has been assumed that the decree by which the foreclosure is effected has been rendered after due notice to subsequent mortgagees, or their assigns, whose mortgages or assignments have been recorded, since, unless so notified, such foreclosure does not bind them or affect their rights unless made parties to the proceedings.^ § 1167. Redemption after Foreclosure. — Sometimes, in Eng- land, this foreclosure is opened, and the time of redemption enlarged, under the general discretion which the court there exercises ; and this has been done after the expiration of six- teen years from the time of the decree.* And it is lield, that the effect of certain acts of a mortgagee who has obtained a strict foreclosure will open it, and let in the mortgagor to re- deem. As, for instance, if the mortgagee, on the ground that the estate is of less value than the amount of his debt, sues the mortgagor to recover the balance alleged to be due, he opens the redemption in England and in most of the States.° But this does not apply to cases where the estate has been sold by way of foreclosure,^ nor to cases of debts payable in 1 Ellsworth I'. Lockwood, 42 N. Y. 89, 96. - Schenck v. Conover, 13 N. J. Eq. 220 ; Kershaw v. Thompson, 4 Johns. Ch. 609; Montgomery v. Middlemiss, 21 Cal. 103. 8 Winslow V. McCall, 32 Barb. 241 ; Packer v. Eoch. R. R., 17 N. Y. 285 ; Friiik V. Murphy, 21 Cal. 108. * Daniell, Ch. Pract. 1205; Coote, Mortg. 515. As to when the debt is pre- sumed to be satisfied, see Barnard v. Onderdonk, 98 N. Y. 158. 6 Lockhart v. Hardy, 9 Beav. 319 ; Coote, Mortg. 516 ; Mass. Pub. Stat. c. 181, § 42 ; Morse v. Merritt, 110 Mass. 458, 460 ; Den v. Tunis, 25 N. J. 633 ; Andrews V. Scotton, 2 Bland, 629, 666 ; Powell, Mortg. 1003. 8 Dunkley v. Van Buren, 3 Johns. Ch. 330; Andrews v. Scotton,2 Bland, 629, OP FORECLOSURE. 221 instalments, where there has been a foreclosure for the non- j)ayment of one of those, and a subsequent suit is brought to recover a second instahnent.^ § 1168. Mortgagor's Liability for Deficiency. — Independent of its effect upon the opening of a foreclosure, it seems to be a right wliich a mortgagee may, in all cases, exercise, to sue the mortgagor upon the original mortgage-debt, and recover the difference between the value of the foreclosed mortgaged prop- erty and the amount of the debt, treating the foreclosure as a payment pro tanto.^ But the mortgagor will be allowed to show that he was fraudulently induced to give a mortgage for an amount in excess of what was due, and the excess will be deducted from the amount necessary to redeem.^ § 1169. How barred or waived. — If the mortgagee acknowl- edges a satisfaction of the debt upon the back of the mortgage- deed before the same is foreclosed, it operates as a discharge of it. And in some cases the receipt by a mortgagee of a part of the mortgage-debt in the way of payment, after a foreclosure, is held to be a waiver of such foreclosure.'* Where a purchaser at a foreclosure sale agrees with the mortgagor to extend the time of redemption from such sale beyond the time fixed by statute, he will be held to stand as mortgagee of the estate, and the same may be redeemed accordingly.^ And a tender may have that effect when made under an agreement on the part of the mortgagee, that, if the debt is paid by a certain time, no advantage shall be taken of the foreclosure.^ And the acceptance of the full amount of the mortgage-debt is con- clusive evidence of the waiver of a prior foreclosure.'^ So 1 Wilson V. Wilson, 4 Iowa, 309. 2 Globe Ins. Co. v. Lansing, 5 Cow. 380; Hatch v. White, 2 Gallis. 152; Powell, Mortg. 1002; Amory v. Fairbanks, 3 Mass. 562; West v. Chamberlin, 8 Pick. 336; Leland v. Loring, 10 Met. 122; Souther v. Wilson, 29 Me. 56; Langdon v. Paul, 20 Vt. 217 ; Hunt v. Stiles, 10 N. H. 466 ; Smith v. Packard, 19 N. H. 575 ; Dunkley v. Van Buren, 3 Johns. Cli. 330 ; Lansing v. Goelet, 9 Cow. 346 ; Porter v. Pillshury, 36 Me. 278 ; Paris v. Hulett, 26 Vt. 308 ; Patten v. Pearson, 57 Me. 428, 434. 3 Twitchell v. Bridge, 42 Vt. 68. * Lawrence v. Fletcher, 10 Met. 344 ; Deming v. Comings, 11 N. H. 474. s Pensoneau ». Pulliam, 47 111. 58. 6 McNeill V. Call, 19 N. H. 403. 7 Batchelder v. P»obinson, 6 N. H. 12. 222 MORTGAGES. where, as in Massachusetts, the mortgagee may enter in pais, or under a judgment of court, and hold possession a certain length of time, and thereby foreclose the mortgage, if, after having entered and held possession for the purpose of fore- closure, he brings liis action at law to recover possession, he waives the effect of his prior entry.^ § 1170. In Massachusetts and Maine, the Remedy of the Mort- gagee to foreclose his Mortgage is by an Entry in pais, or by a suit by a writ of entry, in which he recovers a judgment for possession of the mortgaged premises, if, within a certain pre- scribed time, the debt is not paid.^ A writ of habere facias thereupon issues, and the mortgagee is put into possession, which possession, gained in either way, if continued a certain prescribed period of time, three years, works a foreclosure. But making and recording an entry for a breach of condition, and a lapse of three years, does not estop the mortgagor from sliowing that the condition had not been broken when the entry was made.^ A mortgagee may, however, sue a writ of entry for possession at common law, and recover judgment accordingly, if neither party set up the mortgage.* But until he shall have made an entry under his mortgage in some form, he cannot give authority to a stranger to occupy the premises so as to protect him against the claim of the owner of the equity to possession.^ If a mortgagor certifies to an entry made by the mortgagee for condition broken in form required by law, and this is recorded, it is notice to all concerned ; and whoever purchases the equity of redemption would be bound by it, and would not be at liberty to controvert it on the ground 1 Fay V. Valentine, 5 Pick. 418 ; Smith v. Kelley, 27 Me. 237. But see Fletcher V. Gary, 103 Mass. 475, 480 ; Learned v. Foster, 117 Mass. 36.5, 371, where Fay v. Valentine is distinguished, and there is held to be no waiver of an entry by a suit against a tenant, or of a sale under a power by a subsequent entry. 2 Holbrook v. Bliss, 9 Allen, 69, where this is held to be in effect an equitable action. 3 Pettee v. Case, 11 Gray, 478. * Treat v. Pierce, 53 Me. 71 ; Stewart v. Davis, 63 Me. 539 ; Lawrence v. Stratton, 6 Gush. 163. 6 Silloway i;. Brown, 12 Allen, 30; Mayo v. Fletcher, 14 Pick. 525. Nor can he or the foreclosure purchaser have forcible entry and detainer before entry. Boyle V. Boyle, 121 Mass. 85 ; Walker v. Thayer, 113 Mass. 36; Woodside v. Kidgeway, 126 Mass. 292. But see now Pub. Stat. 1881, c. 175, § 1. OF FORECLOSURE. 22'S of fraud.^ This right of foreclosing by an entry made by the mortgagee does not extend to one whose husband or wife is the mortgagor.2 It may be effectual if made in the presence of witnesses, although the certificate of the fact omits to state that it was done in an open and peaceable manner.^ In New- Hampshire, if the mortgage embrace several parcels of wild land, an entry upon one in the name of the whole would be sufficient to gain a seisin of them all.^ And the same rule is adopted in Massachusetts. If a mortgage covers two parcels of land, an entry on one is sufficient.^ An entry to foreclose in Massachusetts is held to be peaceable, if not opposed by any one claiming the land ; and open, if made in the presence of two competent witnesses, whose certificates are sworn to and recorded within thirty days in the county registry. If the witness sign the certificate by his mark, it will be suffi- cient.^ This has given rise to sundry questions growing out of successive mortgages, where a later mortgagee has sought to foreclose against the mortgagor or an incumbrance subse- quent to his own. Thus, if a second mortgagee enter to foreclose his mortgage, it will operate to that effect as to sub- sequent mortgages, although, at the time of making such entry, the first mortgagee is in actual possession of the prem- ises.^ Nor does an entry by a mortgagee in Massachusetts to foreclose his mortgage break the continuity of the tenant's possession, unless he actually take possession of the premises under his mortgage.^ To foreclose by taking possession in Massachusetts docs not require that the mortgagor should be ousted or expelled.^ And after a mortgagee has made an entry upon the premises to foreclose the same, he may bring and maintain a writ of entry against the mortgagor.^*^ On the 1 Taylor v. Dean, 7 Allen, 251. 2 Tucker v. Fenno, 110 Mass. 311 ; Cormeraisw. Wesselhoeft, 114 Mass. 550, 553. ^ Hawkes v. Brigham, 16 Gray, 564. * Green v. Pettengill, 47 N". H. 375. 6 Hawkes v. Brigham, 16 Gray, 561 ; Bennett v. Conant, 10 Gush. 163. 6 Thompson v. Kenyon, 100 Mass. 108. ^ Palmer v. Fovvley, 5 Gray, 545. 8 Mitchell V. Shanley, 12 Gray, 206. » Swift V. Mendell, 8 Cash. 357 ; Fletcher v. Carey, 103 Mass. 475 ; Morse v. Bassett, 132 Mass. 502, 509. 10 Beavin v. Gove, 102 Mass. 298 ; Merriara v. Merriam, 6 Cush. 91 ; Page v. Robinson, 10 Cush. 99 ; Devens v. Bower, 6 Gray, 126. 224 MORTGAGES. other hand, neither suffering the mortgagor to retain pos- session of the premises after possession taken to foreclose, nor the suing out a writ of entry against the tenant, if it do not call for a conditional judgment, will have the effect of a waiver of a previous entry by the mortgagee for the purpose of foreclosing the mortgage.^ So a husband mortgaging land in which there is a homestead right, passes a reversionary interest in the land, and his mortgagee may sue to foreclose the same, and make a formal entry under the habere facias for that purpose, without disturbing the enjoyment by the husband or his wife and children under their homestead right.^ So where there was a first and second mortgage, and then the first mortgagee took a third mortgage and purchased in the equity of redemption, being in possession of the premises, it was held that the second mortgagee might have an action against tlie first to foreclose as to the third mortgage and the equity of redemption ; and in order to give it full effect, the demandant, in such suit, might be put into temporary posses- sion of the premises, leaving the rights of the tenant as first mortgagee unaffected by the proceedings.^ A writ of entry in such case is like a bill in equity to foreclose, where the court may make the requisite decree to give effect to the process without affecting the defendant's rights as prior mortgagee.* § 1171. Effect of Foreclosure by Entry. — A foreclosure of a mortgage by entry and notice is so effectual in vesting the mortgagee with the absolute title to the estate, that where, after such a foreclosure, the mortgagee agreed in writing to release the "" mortgaged premises " to a third party, who acted by a parol arrangement with the mortgagor, it was held not to waive or open the foreclosure.^ And if, after a first mortgagee enters to foreclose, a second mortgagee commence a process to redeem from this prior mortgage, and, while this process is 1 Fletcher v. Carey, 103 Mass. 475 ; Moore v. Bassett, supra ; Furnas v. Durgin, 119 Mass. 500. 2 Doyle V. Coburn, 6 Allen, 71. 3 Cronin v. Hazeltine, 3 Allen, 324 ; Smith v. Provin, 4 Allen, 516 ; Penniman V. Hollis, 13 Mass. 429 ; Amidown v. Peck, 11 Met. 467 ; George v. Baker, 3 Allen, 326, note ; Kilborn v. Rohbins, 8 Allen, 466; Doten v. Hair, 16 Gray, 149 ; Coch- ran V. Cioodell, 131 Mass. 464. 4 Doten V. Hair, 16 Gray, 149. 5 Clark V. Crosby, 101 Mass. 184. OF FORECLOSURE. 225 pending, the time of redemption from the first mortgage elapses, and the holder thereof assigns and conveys his interest to the second mortgagee, who discontinues his proceedings, he will hold the estate foreclosed in the same way as the first mortgagee would have done.^ § 1172. Mortgagee's Rights of Action. — A mortgagee, after condition broken, may recover in one form of action, although there may be some technical objection to his recovering in the other. The debt may remain, and the mortgage may be en- forced, although an action to recover the debt at law is barred by the statute of limitations.^ And the same rule, as to when the right of action accrues, applies to an action upon the mortgage as upon the debt thereby secured. Thus, if it be to secure a note payable on time, which is entitled to grace, the condition of the mortgage is not broken until the days of grace have expired, although no grace is mentioned in the mortgage.^ So the mortgagor, in a suit to foreclose the mortgage, may make any defence, except the statute of limitations, which he could make against the recovery of the debt thereby secured ; as, for instance, want or failure of consideration, or that it was given to defraud creditors.'* In New Hampshire and New York, the debtor in an action of ejectment or process to enforce a mortgage may file in set-off any claims which he could do in a suit upon the debt itself, or he may plead payment before or after condition broken.^ So in Ohio, the debtor may plead payment or satisfaction of the debt secured.^ If a mortgage cover several parcels of estate, the mortgagee may foreclose it as to one without including the others ; and if the value of the parcel foreclosed is equal to tlie debt secured, the same will thereby be paid, and the mortgage as to the other parcels be paid and satisfied." 1 Thompson 17. Kenyon, 100 Mass. 108. 2 Thayer v. Mann, 19 Pick. 535. * Coffin V. Loving, 5 Allen, 153. * Vinton v. King, 4 Allen, 562 ; Miller v. Marckle, 21 111. 152 ; Freeland v. Free- land, 102 Mass. 475 ; Hannan v. Hannan, 123 Mass. 441 ; Davis v. Bean, 114 Mass. 360. So usury. Minot, v. Sawyer, 8 Allen, 78. 6 Northy v. Northy, 45 N. H. 141 ; Chapman v. Robertson, 6 Paige, C27. 8 Raguet V. Roll, 7 Ohio, 77. "> Green v. Cross, 45 N.H. 574 ; Green v. Dixon, 9 Wis. 532 ; Hosfonl v. Nichols, 1 Paige, 220, 224; George v. Wood, 11 Allen, 41 ; Pike v. Goodnow, 12 Allen, 472. VOL. II. — 15 226 MORTGAGES. § 1173. Right to pursue Concurrent Remedies. — Acccptinir se- curity in the form of a mortgage does not prevent the creditor from pursuing any other remedy he may have for the recovery of his debt, as well as that upon his mortgage.^ And in respect to the land itself, he may proceed in law or in equity for its recovery at one and the same time, or successively ,2 and recover his costs in either.^ In New York, however, no judgment will be rendered or execution issued in a suit upon the note or bond, while a foreclosure suit is pending, without leave of chancery.* In Missouri, recovery of judgment for the amount of the debt does not preclude foreclosure of the mortgage.^ In Iowa, an action on a note and mortgage for foreclosure is an equitable proceeding, if upon the note alone it is an ordinary proceeding at law.^ § 1174. [An Unsatisfied Balance after Foreclosure may be re- covered at law,^ and generally, where foreclosure is by sale, it may be recovered by a deficiency decree which is entered in the foreclosure suit, and which has the force of a personal money judgment. Such is the practice of the federal courts.^] But it is competent for the court in a foreclosure suit to appoint a receiver to take and hold the rents during the pendency of the process.^ And, as a general proposition, the land foreclosed is taken at its value towards or in full payment of the mortgage- 1 Burnell v. Martin, Dong. 417 ; Booth ;;. Booth, 2 Atk. 343 ; Coote, Mortg. 518 ; 2 Spence, Eq. Jur. 636 ; Young, Matter of, 3 Md. Ch. Dec. 461 ; Harrison v. Eldridge, 7 N. J. 392 ; Den v. Spinning, 6 N. J. 466 ; Longworth v. Flagg, 10 Ohio, 300; Knetzer V. Bradstreet, 1 Greene (Iowa), 382 ; Morrison v. Buckner, 1 Hemjist. C. C. 442; Downing i'. Palmateer, 1 Men. 64 ; Verj' v. Watkins, 18 Ark. 546 ; Hale V. Rider, 5 Gush. 231 ; Jones v. Conde, 6 Johns. Ch. 77 ; Payne v. Harrel), 40 Miss. 498 ; ante, § 1044. 2 Hughes V. Edwards, 9 Wheat. 489 ; Andrews v. Scotton, 2 Bland, 629, 665 ; M'Call V. Lenox, 9 S. & R. 302 ; Slaughter v. Foust, 4 Blackf. 379 ; Delahay v. Clement, 3 Scam. 201. 3 Very v. Watkins, 18 Ark. 546. The mortgagor may have injunction, if the mortgagee takes the mortgaged premises on execution, to prevent sale of his other lands till the court ascertains what amount is still due on the mortgage. Lydecker V. Bogert, 38 N. J. Eq. 136. * Williamson v. Champlin, 8 Paige, 70 ; Suydam v. Bartle, 9 Paige, 294. fi Thornton v. Pigg, 24 Mo. 249. 6 Christy v. Dyer, 14 Iowa, 438, 443. ■^ Stark V. Mercer, 3 How. (Miss.) 377. 8 Equity Rule 92. » Finch V. Houghton, 19 Wis. 149, 158. OF FORECLOSURE. 227 debt, as the case may be.^ If of less value than the debt secured, the balance may be recovered in an action of assumpsit against the maker or indorser of the note, if that be the form of the debt.'-^ The same would be the effect if the interest of the mortgagor and mortgagee came together in one person so as to merge ; its effect would be like a foreclosure, and the holder of the mortgage securities can recover the difference between the value of the mortgaged estate and the dcbt.^ In New York, after a bill has been filed for the satisfaction of a mortgage, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court of chancery.^ And a judgment in a foreclosure suit contains a clause docketing the judgment against the mortgagor for any deficiency which may remain unsatisfied of the mortgage-debt, after applying the proceeds of the sale.^ § 1175. Position of Mortgagor's Lessee upon Foreclosure. — The purchaser in a foreclosure sale cannot claim the interven- ing rent which accrues between the sale and the delivery of tlie foreclosure deed. His riglit is only consummated upon the delivery of such deed, and does not relate back.^ If there is any surplus of the money bid for the premises upon a fore- closure sale after satisfying the mortgage, and there be a lessee of the mortgaged premises under a lease with covenants for quiet enjoyment which is defeated by such foreclosure, such lessee is entitled to so much of such surplus as would make good the difference between the value of his term and the rent he is to pay for it ; or, in other words, the value of the use of the premises during his term, less the amount of the rents to be paid by him for^ the same.' And in any case, 1 Brown v. Tyler, 8 Gray, 135; Stevens v. Dedham, 129 Mass. 547, 551. 2 Marston v. Marston, 45 Me. 412. See Bradley v. Chester V. R. R., 36 Penn. St. 141, 150. 3 Marston v. Marston, 45 Me. 412-416 ; Haynes v. "Wellington, 25 iMe. 458. * Stat, at Large, 1863, vol. 2, p. 199. 6 Gage V. Brewster, 31 N. Y. 218. « Cheney r. Woodruff, 45 N. Y. 98. 7 Clarkson v. Skidmore, 46 N. Y. 297. But see Burr v. Stenton, 43 N. Y. 462. 228 MORTGAGES. tlic surplus, if the sale is after the mortgagor's death, is real estate.^ § 1176, Parties to Foreclosure Proceedings. — It is often im- portant to ascertain who should be made parties to proceedings to foreclose a mortgage as plaintiffs and defendants. As a general proposition, all parties in interest should be made par- ties to such a process, since parties, tiiough interested, if not before the court, are not bound by its decree.^ A decree as to them is a nullity, nor are their rights affected by it.^ Whether a wife is to be affected by a judgment for foreclosure to which she is made a party or not, depends upon whether she signed the deed. If she did, the judgment would bind her ; otherwise it would not.*^ Joint tenants of a mortgage must join in a suit to foreclose it ; one cannot sue alone.^ A second mortgagee would not be barred of his right to redeem from the first by a foreclosure of the mortgagor's interest in a proceeding between the first mortgagee and mortgagor to which he was not a party. But his not being made a party to the suit did not affect the decree between the mortgagee and mortgagor.^ So a de- cree of sale for purposes of foreclosure of a mortgage would be void as to a purchaser of any part of the mortgaged prem- ises who should not have been made a party to such process.' If a mortgagor becomes bankrupt, his equity of redemption, by the decree declaring him such, passes to his assignee, and a foreclosure thereof made without making such assignee a party 1 Dunning v. Ocean Bk., 61 N. Y. 497. 2 Goodrich v. Staples, 2 Ciish. 258 ; Williamson v. Field, 2 Sandf. Ch. 533 ; McCall V. Yard, 9 N. J. V.^i. 358 ; Valentine v. Havener, 20 Mo. 133 ; Webb v. ilaxan, 11 Tex. 678 ; Caldwell v. Taggart, 4 Pet. 190 ; Farwell v. Murphy, 2 Wis. 533 ; Hunt v. Acre, 28 Ala. 580 ; Finley v. U. S. Bk., 11 Wheat. 304. The owner of the equity always must be a party, whether his deed is I'ecorded or not. Hall v. Nelson, 23 Barb. 88 ; Porter v. Clements, 3 Ark. 364 ; White v. Watts, 18 Iowa, 74 ; Anson v. Anson, 20 Iowa, 55 ; Chase v. Abbott, 20 Iowa, 154 ; Carpentier v. Williamson, 25 Cal. 154 ; McArthur w. Franklin, 15 Ohio St. 485; 2 Spence, Eq. Jur. 703 ; Montgomery v. Tutt, 11 Cal. 307. 3 Cutter V. Jones, 52 111. 84. * Moomey v. Maas, 22 Iowa, 380. 5 Webster v. Vandeventer, 6 Gray, 428. 6 Goodman v. White, 26 Conn. 317, 320 ; Vanderkemp v. Shelton, 11 Paige, 28 ; Grattan v. Wiggins, 23 Cal. 16, 32 ; Davenport v. Turpin, 43 Cal. 597 ; Newcomb v. Dewey, 27 Iowa, 381; De Lashmutt v. Sellwood, 10 Oreg. 319; Holmes V. Bybee, 34 Ind. 262. ^ Ohliug V. Luitjens, 32 111. 23. OF FORECLOSURE. 229 would be void. The assignee might still redeem the estate.^ So if such junior mortgagee see fit to redeem from the senior, who has foreclosed as to the mortgagor, he may do so, and would not be liable for the costs of the former process.^ Who- ever is interested in the estate at the time of commencing pro- ceedings to foreclose it, — second incumbrancers, for instance, — must be made parties, or they will not be bound by these proceedings. Nor is it material whether this interest was acquired before or after the making of the mortgage-deed.^ But if a person becomes interested in the estate by purchase pendente lite, he need not be made party to the suit."* Every person purchasing an interest in an estate during the ])endency of a suit affecting the title to the same is bound by the judgment in such suit, without being made a party to the same. Such a purchase pendente lite is in law a notice to the purchaser as much as if he was formally made a party to it.^ Judgments and decrees bind equally parties and privies; and purchasers, pendente lite, stand in the latter category.^ Where a mortgage had been assigned to several, and one of them died, his in- terest in the mortgage-debt was held to survive to the others, and his personal representatives need not be made parties to a bill of foreclosure. But where the holder of a mortgage by an equitable title only wished to foreclose the same, it was held that he should make him a party in whom was the legal title.'' So in those States in which rights of homestead exist in favor of wives, the wife of the owner of the equity of redemption will not be bound by a decree of foreclosure against her hus- band, unless she is made a party to it.^ In applying the rule 1 Winslow V. Clark, 47 N. Y. 261. 2 Gage V. Brewster, 31 N. Y. 218 ; Grattan v. Wiggins, 23 Cal. 32. 3 Haines v. Beach, 3 Johns. Ch. 459 ; Fisher, Mortg. 187 ; Heyman v. Lowell, 23 Cal. 106 ; Skinner v. Buck, 29 Cal. 253. 4 Hull V. Lyon, 27 Mo. 570. 6 Story, Eti. §§ 405-407 ; Hayes v. Shattuck, 21 Cal. 51 ; Montgomery v. Middlemiss, id. 103. See, as to lis pendens and its effect, Fisher, Mortg. 221, 335-339 ; Jackson v. Warren, 32 111. 331 ; Haven v. Adams, 8 Allen, 363. 6 Dickson v. Todd, 43 111. 504 ; Crooker v. Crooker, 57 Me. 395 ; Snowman v. Harford, id. 397. ^ Martin v. McReynolds, 6 Mich. 70 ; Cote v. Deciuindre, Walker, Ch. 64. 8 Eevalk V. Kraemer, 8 Cal. 66 ; Tadlock v. Eccles, 20 Tex. 782 ; Larson v. Reynolds, 13 Iowa, 579; Moss v. Warner, 10 Cal. 296. 230 MORTGAGES. as to parties in interest, it has been held that all inciim- brancei's upon the same estate, whether prior ^ or subsequeiit,^ should be made defendants to a bill for foreclosure ; and that, if a second mortgagee seeks to foreclose under his mortgage, he must make the prior mortgagee a party to his bill,^ [But the universality of this rule may well be doubted. Subsequent incumbrancers are proper but not necessary parties ; and the rule as to prior incumbrancei's seems to be correctly stated by Mr. Roger Foster'^ thus : Prior incumbrancers should not be made parties,^ unless the bill prays for a receiver,*' or seeks to obtain a sale of the entire property free from all liens,'^ or un- less " there is substantial doubt respecting the amount of debts due prior lien creditors," in which case " there is obvious propriety in making them parties, that the amount of the charge remaining on tlie land after the sale may be deter- mined, and that purchasers at the sale may be advised of what they are purchasing ; " ^ or unless there are other peculiar cir- cumstances making it necessary. And if a prior mortgagee is made a party in order to sell the property free from incum- brances, it is necessary that the prior mortgage be overdue.^] As a general proposition, prior parties are not affected by a foreclosure of a later mortgage.^*^ And it is clear that such prior mortgagee should not be a party in case of what is called a strict foreclosure, since this does not bind him, but only cuts off the mortgagor and subsequent mortgagees, who stand, as 1 Ducker v. Belt, 3 Md. Ch. Dec. 13, 23 ; A'andeikemp v. Sheltou, 11 Paif^e, 28 ; U. S. Bk. v. Carroll, 4 B. Mon. 40 ; Champliii v. Foster, 7 B. Mon. 104 ; Clark V. Prentice, 3 Dana, 468. And the prior mortgagee may restrain the later mortgagee, if not made a party. Rucks v. Taylor, 49 Miss. 552. 2 Brown v. Nevitt, 27 Miss. 801 ; Porter v. Mailer, 65 Cal. 512. 3 Wylie V. McMakin, 2 Md. Ch. Dec. 413 ; Shiveley v. Jones, 6 B. Mon. 274 ; Roll V. Smalley, 6 N. J. Eq. 464; Clark v. Prentice, 3 Dana, 468; Persons, Merrick, 5 Wis. 231. * 1 Foster's Fed. Prac. § 44. 5 Calvert on Parties (2d ed.), 105 ; Cholmondeley r. Clinton, 3 Jac. & W. 138; Saumarez v. Saumarez, 4 M. & C. 331 ; Dial v. Reynolds, 96 U. S. 340. 6 Miltenberger v. Logansport R'y Co., 106 U. S. 286, 306. 7 Jerome v. McCarter, 94 U. S. 734. 8 Ibid. 9 Roll V. Smalley, 6 N. J. Eq. 464. 10 ^Yeed i;. Beebe, 21 Vt. 495; Jerome v. McCarter, 94 U. S. 734; Summers v. Brondey, 28 Mich. 125 ; Tome v. Loan Co., 34 Md. 12. OF FORECLOSURE. 231 to the second mortgagee, as assignees of the mortgagor's equity of redemption.^ So where a mortgage may be foreclosed by entry upon the land, and holding possession, a subsequent mortgage is foreclosed thereby, whether the entry is made and possession gained in pais or under judgment of court, although no formal notice was given to such subsequent mortgagee.^ Judgment lienors are proper but not necessary parties.^ A mortgagor need not be made party to a bill for foreclosure, where he has parted with his equity of redemption,'* unless he shall have done so with a general warranty of title.^ Where, therefore, a mortgagor had conveyed his estate to a third per- son, who had conveyed the same to the mortgagor's wife, it was held that the writ of entry by the mortgagee for the pur- pose of foreclosing the mortgage should be brought against the wife of the mortgagor, and not against him.^ So if one pur- chase of a mortgagor, and then convey to a third party, though it be with warranty, he need not be made a party to a suit for foreclosure.'^ Nor can the title of one who claims adversely to the mortgagor, by a title prior to the mortgage, be affected by being made a party to such a bill against the mortgagor. He should not be made a party at all.^ Nor are the officers of a corporation mortgagor proper parties defendant.^ The owner of the equity of redemption is a necessary party ,^*^ and this 1 1 Daniell, Ch. Pract. 262 ; Coote, Mortg. 523 ; Smith v. Chapman, 4 Conn. 344. 2 Downer v. Clement, 11 N. H. 40 ; Oilman v. Hidden, 5 N. H. 30. 8 Felder v. Murphy, 2 Rich. Eq. 58 ; Minis v. Minis, 1 Humph. 425; Person v. Merrick, 5 Wis. 231 ; Adams v. Paynter, 1 Coll. 530 ; Brainard o. Cooper, 10 N. Y. 356 ; Gage v. Brewster, 31 N. Y. 225 ; Alexander v. Greenwood, 24 Cal. 511. 4 Shaw V. Hoadley, 8 Blackf. 165; Lockwood v. Benedict, 3 FaIw. Ch. 472; Heyer v. Pruyn, 7 Paige, 465. In Massachusetts he may, but need not, be made a party. Pub. Stat. c. 181, § 9. See also Maine, Rev. Stat. 1883, c. 90, § 13 ; Delaplaine v. Lewis, 19 Wis. 476. s Bigelow V. Bush, 6 Paige, 343 ; Buchanan v. Monroe, 22 Tex. 537. « Campbell v. Bemis, 16 Gray, 485. ^ Soule V. Albee, 31 Vt. 142. 8 Holcomb V. Holcomb, 2 Barb. 20 ; Corning v. Smith, 6 N. Y. 82; Brundage V. Mission. Soc, 60 Barb. 204 ; Mcich. Bk. v. Thomson, 55 N. Y. 7 ; Newman v. Home In.s. Co., 20 Minn. 422. 9 Johnes v. Cutwater, 55 N. J. Eq. 398; s. c. 36 Atl. Rep. 483. 1" Hall u. Nelson, 23 Barb. 88 ; Bradley v. Snyder, 14 lU. 263 ; Brundred v. Walker, 12 N. J. Eq. 140 ; Veach v. Schaup, 3 Iowa, 194 ; Hodson v. Treat, 7 Wis. 232 MORTGAGES. applies to purchasers of parts of the mortgaged premises, owners at tlie time of foreclosure.^ In New York, the wife of the grantee of a mortgagor must be made a party, while in Missouri she need not be ; nor is the widow of the mortgagor a necessary party defendant in Tennessee.^ But, in Massa- chusetts, a mortgage may be foreclosed by a suit, judgment, and possession, so as to bar the wife of the mortgagor who has joined in the deed, although not a party to the suit. But such is not the case in Ohio. And the difference may arise, per- haps, from the length of time after a mortgagee gains pos- session, during which he must hold it before it works a foreclosure, which operates as a notice to the wife of the pendency of the process.^ If the mortgagor be dead, his heir or devisee is to be the party defendant in a process for fore- closure, and not his personal representatives; [unless the land is assets to be administered, in which case the personal repre- sentatives are necessary parties; or a deficiency decree may be taken, in which case they are proper parties.*] In Illinois, the proceedings may be against the heir, or the executors or ad- ministrators of the mortgagor, at the plaintiff's election.^ In Wisconsin, where there are several notes secured by a mort- gage, and one of them has been assigned, the assignee may be joined as a defendant in a bill to foreclose ; while it is held otherwise in Missouri, the proceeding in the latter State being 263 ; Wolf V. Banning, 3 Minn. 202, 204 ; Hall v. Hoggins, 19 Ala. 200 ; Cliilds V. Childs, 10 Ohio St. 339. 1 AVoodward v. Brown, 119 Cal. 283 ; s. c. 51 Pac. Eep. 2 ; s. c. 63 Am. St. Rep. 108. 2 Mills V. Van Voorhis, 23 Barb. 125 ; 20 N. Y. 412 ; Thornton v. Pigg, 24 Mo. 249 ; Minis v. Minis, 1 Humph. 425 ; Bell v. The Mayor, 10 Paige, 49 ; Wheeler V. Morris, 2 Bosw. 524 ; Denton v. Nanny, 8 Barb. 618. See Smith v. Gardner, 42 Barb. 356, 365, as to cases of mortgages made before marriage. 3 Pitts V. Aldrich, 11 Allen, 39 ; Farwell v. Getting, 8 Allen, 211 ; Savage v. Hall, 12 Gray, 363 ; Mc Arthur v. Franklin, 15 Ohio St. 485, 510 ; s. c. 16 Ohio St, 193; Davis v. Wetherell, 13 Allen, 60 ; Newhall v. Lynn Sav. Bk.. 101 Mass. 428, 431. * Slaughter v. Foust, 4 Blackf. 379 ; Shirkey v. Hanna, 3 Blackf. 403 ; Graham W.Carter, 2 Hen. & M. 6; Mclver v. Cherry, 8 Humph. 713; Sheldon v. Bird, 2 Root, 509 ; Worthington v. Lee, 2 Bland, 678 ; Harvey v. Thornton, 14 111. 217 ; Belloc V. Rogers, 9 Cal. 123; Bayly v. Miiche, 65 Cal. 345; Miles v. Sniitli, 22 Mo. 502 ; Averett v. Ward, Busbee, Eri. 192 ; Magruder ;;. Offutt, Dudley (Ga.), 227. 6 Rockwell V. Jones, 21 111. 279. OF FORECLOSURE. 233 a proceeding at law, and not governed by the rules of equity.^ And by the law of Wisconsin, where there were three notes secured by a mortgage, held by different individuals, the first of which had been paid, and the holder of the third wished to foreclose the mortgage, it was held that he must make the holder of the second note a party to such proceeding.^ But a receiver of a mortgagee, appointed by a court of a State of which lie is a citizen, will not be admitted to prosecute a suit to foreclose a mortgage in another State, unless tlie mortgagee shall have made a formal assignment of the mortgage to him ; and in that case he acts as assignee, and not as a receiver.^ To a bill to foreclose, sued by a trustee, the eestuis que trust should all be joined as parties.* And accordingly, where, as in Maine, when the holder of the legal estate of a mortgagee has parted with the debt, he becomes trustee for the holder of the debt, both should join in a process for foreclosure ; ^ and if there are two or more joint mortgagees they must all join in a bill for foreclosure.^ And where one of several persons who hold notes secured by a joint mortgage wishes to sue upon the mortgage, he may use the names of the others in a process at law, upon giving them indemnity for costs. In such a case they must all be joined.'' But if the mortgage be to several to secure notes owned separately and distinctly, and one of these be paid, the payee cannot sue on the mortgage in his own name, though he is, in fact, the sole survivor of the several persons named in the mortgage, as the mortgage in respect to him will have become extinct.^ 1 Armstroug v. Pratt, 2 Wis. 299 ; Thayer v. Campbell, 9 Mo. 277, 280. 2 Pettibone v. Edwards, 15 Wis. 95. 3 Graydon v. Church, 7 Mich. 36, 51 ; Booth v. Clark, 17 How. 332, 339. * Davis V. Hemingway, 29 Vt. 438; Wood v. Williams, 4 Madd. 186 ; Lowe v. Morg.in, 1 Bro. C. C. 368 ; Story, Eq. PI. § 201. See Somes v. Skinner, 16 Mass. 348 ; Daniell, Ch. Pract. 267 ; Martin v. McReynolds, 6 Mich. 70. s Beals v. Cobb, 51 Me. 348. 6 Hopkins v. Ward, 12 B. Mon. 185 ; Shirkey u. Hanna, 3 Blackf. 403 ; Stacker v. Stucker, 3 J. J. Marsh. 301; Hartwell v. Blocker, 6 Ala. 581 ; Saun- ders V. Frost, 5 Pick. 259 ; Johnson v. Brown, 31 N. H. 405 ; W^ebster v. Vandeventer, 6 Gray, 428 ; Powell, Mortg. 904 a, u. ; 1 Daniell, Ch. Pract. 260. ■^ Johnson v. Brown, supra. Otherwise in Missouri, where each may sue alone. Thayer v. Campbell, 9 Mo. 277, 280. 8 Burnett v. Pratt, 22 Pick. 556 ; Mitchell v. Buruham, 44 Me. 286, 305. 234 MORTGAGES. § 1177. Conclusiveness of the Judgment. — It may be added as a kind of corollary to what has been stated above, that the rights of every one who is properly made a party to the process are concluded by a judgment of foreclosure.^ But this would not extend to parties who were not parties or privies to the mortgage, as in the case before cited of a wife made party to a process of foreclosure who did not join in the mortgage ; ^ or of one claiming adversely to the mortgagor.^ [But estates lim- ited over to persons not in esse are represented by the owner of the first estate of inheritance, and the former are concluded by a foreclosure decree against the latter.*] And if, upon a bill to redeem, the plaintiff fail to comply with the terms which the court has prescribed upon which it may be done, it will be an effectual bar to a further process for redemption.^ § 1178. Foreclosure after Mortgagee's Death. — The law of the States is general, though not uniform, that, where a mort- gagee is dead, his personal representatives, and not his heirs, are the persons to maintain a process of foreclosure,^ If there be a joint mortgage to two to secure a joint debt, and one of them die, the survivor sues alone to foreclose it." But where a bond and mortgage were made to husband, conditioned to sup- port him and his wife, and the husband died, it was held that it was to be enforced after that in the name of his adminis- trator. She would be the one to demand the support, and she may do this though she were to marry again. But she could not enter for condition broken, nor could she demand anything towards the support of her second husband.^ Upon the foreclosure of a mortgage by an executor, the land belongs to the parties who would have been entitled to the debt if paid and not used in administration, subject to the right of the 1 Grattan v. Wiggins, 23 Cal. 16, 32 ; Shores v. Scott River Co., 21 Cal. 135. 2 Mooiuey v. Maas, 22 Iowa, 380. 3 Banning v. Bradford, 21 Minn. 308. < Dunham v. Doremus, 55 N. J. Eq. 511 ; s. c. 37 Atl. Eep. 62. s 4 Kent, 186. 6 Kinna v. Smith, 3 N. J. Eq. 14 ; Riley v. McCord, 24 Mo. 265 ; Smith v. Dyer, 16 Mass. 18 ; Dewey v. Van Dusen, 4 Pick. 19 ; Perkins v. \Yoods, 27 Mo. 547. Though once held necessary to join the heir in Maryland, it seems to be otherwise by statute now. Worthingtou v. Lee, 2 Bland, 678. ■^ Blake v. Sanborn, 8 Gray, 154. 8 Holmes v. Fisher, 13 N. H. 9. OF FORECLOSURE. 235 executor to dispose of it in the discharge of his office.^ If a mortgagee has assigned his entire interest in the mortgage, his assignee may sue for foreclosure in his own name without joining the original mortgagee, though it is otherwise if the assignment be a limited or conditional one.^ § 1179. Trying Adverse Title — Multifariousness. — It is laid down as a doctrine of the courts, that a mortgagee's title is not open to investigation in a process by him for foreclosure ; the only effect of a decree in such a proceeding being to bar the mortgagor's equity of redemption, leaving the mortgagee to pursue his legal remedies to establish his title to the estate.^ But this would not seem to be true where the remedy of the mortgagee for foreclosing his mortgage is by a suit at common law for possession, where the issue between the parties may in- volve the seisin and freehold in the mortgagee. In an action to recover possession, the mortgagor is estopped by his deed to deny the title of mortgagee to the premises at the time of making the mortgage.^ And it is true that a foreclosure suit is not a proper one in which to try the rights of litigant parties who claim title to the mortgaged premises hostile to that of the mortgagor, even though all the parties to the suit, and although all claimants whose titles are derived from the mortgagor subsequently to the making of the mortgage, ought to be made parties to such suit.^ If a party summoned claims nothing in the estate subsequent and subject to the mortgage, he ought to disclaim, and have the suit dismissed as to him. But if he sets up a title paramount to the mortgage, it would be no answer to the allegations in the bill or process of fore- 1 Fifield V. Sperry, 20 N. H. 338 ; Mass. Pub. Stat. c. 133, §§ 7, 9, 10, 2 Daniel], Cli. Pract. 307 ; Whitney v. M'Kinney, 7 Johns. Ch. 144 ; Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; Lamson v. Falls, 6 Ind. 309 ; McGuffey v. Finley, 20 Ohio, 474 ; Ward v. Sharp, 15 Vt. 115 ; Miller v. Henderson, 10 N. J. Eq. 320; Lewis v. ISTangle, 2 Ves. Sr. 431 ; Story, Eq. PL § 199. 3 Coote, Mortg. 517 ; Powell, Mortg. 965 ; Anon., 2 Cas. in Ch. 244 ; Broome V. Beers, 6 Conn. 198 ; Palmer v. Mead, 7 Conn. 149. In Connecticut, the as- signee of the debt may have a foreclosure, though the legal estate has not been conveyed to him. Austin v. Burbank, 2 Day, 474 ; Holcomb v. Holcomb, 2 Barb. 20 ; Jones v. St. John, 4 Sandf. Ch. 208 ; Corning v. Smith, 6 N. Y. 82. * Concord Ins. Co. v. Woodbury, 45 Me. 447. 5 Lewis V. Smith, 9 N. Y. 502, 514 ; Corning v. Smith, 6 N. Y. 82 ; Eagle F. I. Co. V. Lent, 6 Paige, 635 ; Pelton v. Farmin, 18 Wis. 222, 227 ; Palmer v. Yager, 20 Wis. 91, 103. 236 MORTGAGES. closure.^ Nor would any judgment in such foreclosure suit affect his paramount title acquired before the mortgage in suit was made.2 And if a subsequent mortgagee is summoned as a party in such suit, he can make no objection to the proceeding, unless he can show that he would sustain some loss or injury by a judgment therein.^ § 1180. Decrees against Infants. — The effect of a decree of foreclosure in equity upon an infant holder of an equity of re- demption is said to be, that he will be bound by it, unless within six months after arriving at age he shall show some error in the foreclosure ; * and if the foreclosure is by a sale of the premises, the infant cannot disturb the title acquired under such a decree ; ^ and probably one reason why a judgment in such cases would be binding upon the infant is the general juris- diction which chancery has over infants, and the precautions adopted in that court to protect their interests. Whereas, where the remedy for foreclosure is by a suit at common law, the same rule would probably apply to judgments for fore- closure as to other judgments, in requiring the precaution of having a guardian ad litem appointed, in order to their being valid. § 1181, Decrees against Married Women. — In respect to the effect of such a decree upon the rights of a feme covert, it seems that she would be bound by it if the bill is brought against her and her husband, even though he neglect to defend.^ But this depends, as above stated, upon whether she was a party to the mortgage-deed according to statutory provision.'^ And where, as in Massachusetts, a mortgage is foreclosed by possession taken, and continued a prescribed length of time, a wife would not be bound by such entry and possession by the mortgagee without notice to her, though known and assented to by the ^ Pelton V. Farmin, supra ; Corning v. Smith, supra ; Macloon v. Smith, 49 Wis. 200. 2 Strobe v. Downer, 13 Wis. 10 ; Lewis v. Smith, supra; Eathbone v. Hooney, 68 N. Y. 463 ; Emig. Sav. Bk. v. Goldman, 75 N. Y. 127 ; Jerome v. McCarter, 94 U. S. 734. 3 Mann v. Thaj'er, 18 Wis. 479. * 2 Cruise, Dig. 199. 6 Mills V. Dennis, 3 Johns. Ch. 367. 6 Mallack v. Galton, 3 P. Wma. 352. ^ Moomey v. Maas, 22 Iowa, 380. OF FORECLOSURE. 237 husband.^ * But it seems now that the wife's interest in her husband's estate may be foreclosed under the statute process for that purpose, althou<^h she is not made a party to the same.^ § 1182. Right of Surety Mortgagee to foreclose. — Mort- gages, as has been stated, are often given by way of indemnity to sureties; and in such case it is held, that if the principal fails to pay the debt at maturity, and thereby subjects the surety to liability to a suit, it will be such a breach that the mortgagee may proceed to take possession for condition broken. ^ Though it would seem that he cannot have a decree for fore- closure until he has paid the debt of the principal.^ § 1183. Effect of Foreclosure upon the Estate. — The efifect of a foreclosure is to convert the mortgagee's interest into real estate, which goes to his heirs by descent.^ Though by statute in Massachusetts, if the foreclosure is by the executor or ad- ministrator of the mortgagee, it is distributed to the same persons as would take the distributive shares of the personal estate. §1184. Effect of Foreclosure upon the Debt. — If amort- gage is foreclosed, the debt is, to the extent of the value of the property taken by the mortgagee, paid. But a decree for strict foreclosure does not operate as a satisfaction of the debt until after the time fixed by the decree for redemption has ex- pired.^ And where the mortgage included two parcels, one of which the mortgagor conveyed to A, and the other to B, and the * Note. — A mortgage by an inhnt feme covert for the debt of her husband is absolutely void, not merely voidable. Chandler r. McKinney, 6 Mich. 217 ; Adams V. Ross, 30 N. J. 505, 513; Cason v. Hubbard, 38 Miss. 35,46; Markham y. Merrett, 7 How, (Miss.) 437. 1 Hadley v. Houghton, 7 Pick. 29 ; Swan v. Wiswall, 15 Pick. 126. 2 Davis V. Wetherell, 13 Allen, 62 ; Newhall r. Lynn Sav. Bk., 101 Mass, 430. 8 Shaw V. Loud, 12 Mass. 449 ; Oilman v. Moody, 43 K H, 239, 243. * Shepard v. Shepard, 6 Conn. 37 ; Francis v. Porter, 7 Ind. 213 ; Ellis v. Martin, id. 652 ; McLean v. Eagsdale, 31 Miss, 701 ; Pope v. Hays, 19 Tex. 375, 378 ; Rockfeller v. Donnelly, 8 Cow. 623, 628 ; Chace v. Hinman, 8 Wend. 452 ; Hall V. Nash, 10 Mich. 303 ; Butler v. Ladue, 12 Mich. 180. Alitcr, where the agreement is absolute and not for indemnity. Furnas v. Durgin, 119 Mass. 600; Eeed r. Paul, 131 Mass. 129; Williams v. Fowle, 132 Mass, 385. 6 Swift V. Edson, 5 Conn, 531 ; Mass. Pub, Stat. c. 133, § 10, For the effect of foreclosing mortgages upon the rights of tenants to emblements, see a7itc, § 268. 6 Peck's App., 31 Conn, 215 ; Edgerton v. Young, 43 111. 464, 470. 238 MORTGAGES. mortgage was foreclosed as to A's parcel, it was held that B might redeem his by paying the balance due on the mortgage- debt after deducting the value of A's parcel from the amount of the original debt.^ * * Note. — Subjoined the reader will fiud a compendium of the laws of the sev- eral States, with some of the leading cases bearing upon the .sanit, respecting the foreclosure of mortgages, which may serve, among other things, to explain some of the apparent discrepancies in the decisions of the different States. The methods of enforcing a mortgage and obtaining a foreclosure in the United States are quite various ; though the more prevalent mode is by a bill in chancery under the general and inherent jurisdiction of courts of equity, subject to various statutory regula- tions in the details of proceedings, or by a suit in a common law court in the nature of a proceeding in equity. Under this system, the general course is for the court to pass an interlocutory decree for the payment of the money into court by a day limited, either by the court in its discretion, or, as in some cases, by statute ; on default of which the land is decreed to be sold by the sheriff or a master iu chancery, and the money applied to the payment of the debt and the costs, and the balance, if any, is delivered to the debtor. In Alabama, the equity system of foreclosure is subject to few statutory reg- ulations. After a sale of the estate on foreclosure, the mortgagor, his executor, administrator, or judgment creditor, may redeem the land of the purchaser or his vendee within two years thereafter, on payment of the purchase-money with ten per cent interest, together with the value of all permanent improvements made by the occupant. Code 1896, c. 97. The right of redeeming after a sale can be enforced only in equity. Smith v. Anders, 21 Ala. 782. On a bill to foreclose, tlje court could formerly only decree a sale or foreclosure ; and the balance of the debt was piirsued at law, and could not be recovered unless there was a distinct covenant in the mortgage to pay the debt, or a separate bond or note, or other evidence of the debt. Hunt v. Lewin, 4 Stew. & P. 138. That a mortgage contains a power of sale does not deprive a court of chancery of jurisdiction to foreclose. Carradine t>. O'Connor, 21 Ala. 573. In Arkansas, the mortgagee files a petition for foreclosure in the circuit court against the mortgagor and the actual occupants of the estate. Upon the trial of the petition, if it be found that the petitioner is entitled to recover, the court render judgment for the debt, interest, and costs, and order the property to be sold. Before sale, the property may be redeemed, and by Act 1879, p. 94, also for one year after sale. If the property proves insufficient, an execution may be issued against the defendant as on an ordinary judgment. Dig. of Stat. 1894, § 5858. These proceedings are essentially those of a court of chancery, and must be governed by the principles and rules of equity. McLain t'. Smith, 4 Ark. 244 ; Price v. State Bk., 14 Ark. 50. A decree must fix some certain time for payment, in default whereof the sale is to be made. Fowler v. Byers, 16 Ark. 196. In California, mortgages are foreclosed only in equity, and on a decree of sale upon foreclosure, if the debt be not all due, only sufficient propeity is sold to pay the amount due ; and afterwards, as often aa more becomes due, the court may, on motion, order more to be sold. But if the property cannot be conveniently divided, 1 George v. Wood, 11 Allen, 41 ; Hedge v. Holmes, 10 Pick. 380 ; ante, § 1172. OF FORECLOSURE. 239 the whole may be ordered to be sold in the first instance, and the entire debt paid. If the property sold is not sufficient to satisfy the debt, the court may order an execution for the balance. Code of Civ. Proc. 1899, § 726. There is the same statutory right of redemption as in cases of sale under ordinary judgments at law. McMillan v. Richards, 9 Cal. 365 ; Koch v. Briggs, 14 Cal. 256, 263. And the sale passes the entire estate of the mortgagor to the purchaser, who may take possession under his deed at once ; and if resisted, the court will, by writ, put him in posses- sion. Montgomery i'. Middlemiss, 21 Cal. 103, 107. In Oregon, mortgages are foreclosed by suit in equity. The property is adjudged to be sold to satisfy the debt. In addition to the decree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor, the court also decree a recovery of the amount of such debt against the mortgagor. If the mortgaged property is not sufficient to satisfy the decree, the amount remaining unsatisfied may be enforced by execution, as in ordinary cases. A decree of foreclosure has the effect to bar the equity of re- demption ; and property sold on execution issued upon a decree may be redeemed as in ordinary cases of sale on execution. If the debt is payable by instalments not then due, the court may decree a sale of the property for the satisfaction of the whole debt, or so much thereof as may be necessary to satisfy the instalment ; and in the latter case the decree may be enforced by an order of sale, whenever a default shall be made. Suit for foreclosure cannot be maintained during pendency of action for the debt. Annot. Code 1887, § 414 ct seq. In Florida, all mortgages are foreclosed in chancery by sale of the premises. No redemption after sale. Rev. Stat. 1892, § 1987. Personal decree may be en- tered for deficiency. Scott v. Russ, 21 Fla. 260. In Georgia, foreclosure is by petition in the superior court, which grants a rule that the debt be paid within three months ; which rule shall be published, or served upon the mortgagor. Unless so paid, the court order the property to be sold as upon execution. Code 1895, § 2743. Foreclosure may also be according to practice in equity. § 2770. In Indiana, a suit for foreclosure is instituted in the circuit court of the county where the land lies. In rendering judgment of foreclosure, the court shall order a sale of the premises ; and when there is contained in the mortgage, or any separate instrument, an express written agreement for the payment of the sum of money secured, the court shall direct in the order of sale that the balance due on the mortgage, and costs which may remain unsatisfied after the sale of the mortgaged premises, shall be levied of any property of the mortgage debtor. The plaintiff shall not prosecute any other action for the debt or matter secured by the mort- gage while he is foreclosing. When there are instalments not due, the complaint will be dismissed on payment, before final judgment, of the part v'hich is due. If such payment be made after final judgment, proceedings thereon will be stayed. In the final judgment, the court direct at what time and upon what default any subsequent execution shall issue. If the whole mortgage is not due, and the court ascertain that the property can be sold in parcels, they direct so much only to be sold as will be sufficient to pay the amount due, and the judgment shall remain and be enforced upon any subsequent default. Smith v. Pierce, 15 Ind. 210 ; Benton v. "Wood, 17 Ind. 260. If the premises cannot be sold in parcels, the court order the whole to be sold, and the proceeds to be ajqdied, first to the payment of the part due, and then to the residue secured by the mortgage and not due. Annot. Rev. Stat. 1894, § 1109 ct seq. One year after sale is allowed to re- 2-40 MORTGAGES. deem in. Davis v. Langsdale, 41 Ind. 399. It is not competent for the legislature, by a law made after the e.xecution of a mortgage, to shorten the term of notice of a sale required by law at the date of such mortgage. Hopkins v. Jones, 22 Ind. 310, 315. The methods of foreclosure in Michigan and New York are quite similar. In Michigan, the circuit court of chancery may order a sale of the mortgaged premises after one year from the filing of the bill of foreclosure. Detroit F. & M. I. Co. v. Renz, 33 Mich. 298. In the States above named, if there is a balance of the mort- gage-debt unsatisfied after a sale of the premises, in case such balance is recoverable at law, the court may issue the necessary executions against other property of the mortgagor, or other party assuming or liable for the mortgage-debt. Miller v. Thompson, 34 Mich. 10. But this is not a part of, but subsequent to, the foreclosure. Gies V. Green, 42 Mich. 107. No proceedings are to be had at law while the bill is pending ; and the bill is to state whether any proceedings have been had at law for the recovery of the debt; and if judgment has been obtained at law, no proceedings are to be had unless the execution is returned unsatisfied. The sale is by a master, commissioner, or officer of the court, who executes a deed and applies the proceeds to the discharge of the debt. Mich. Gen. Stat. 1882, §§ 6684-6712 ; N. Y. Code Civ. Proc. 1883, §§ 1626-1637. In these States, also, mortgages containing a power of sale may be foreclosed by advertisement, for twelve successive weeks after default, provided no suit or proceeding has been instituted at law, or that execution in such suit has been returned unsatisfied, and provided the power of sale or the mortgage containing it had been duly recorded. In New York, such sale shall be equivalent to a foreclosure in equity, so far as to be an entire bar to the mortgagor's equity of redemption, N. Y, Code Civ. Proc. §§ 2387-2409. In Michigan, the sale in such case is made by the sheriff, who executes a deed to be operative if the premises are not redeemed within one year by the payment of the purchase-money with interest at the rate borne by the mortgage-note, not exceeding ten per cent. Mich. Gen. Stat. §§ 3407-3507. In Minnesota, actions for foreclosure of mortgages are governed by the same rules as civil actions, with certain exceptions, and judgment is entered fixing the amount due, and directing the sheriff to sell the mortgaged premises ; and the court may issue the necessary execution against the other property of the mort- gagor; and proceedings may be stayed or dismissed upon the defendant's bringing into court the principal and interest due, with costs. But if the foreclosure is by advertisement, the mortgagor has one year within which to redeem the estate. The ordinary mode of foreclosure is by a sale of the premises, or so much as is necessary to satisfy the debt, which is done by the sheriff under a decree of the court. Stat. 1891, § 5380 et seq. Baldwin v. Allison, 4 Minn. 25. But it is competent for the court, instead of this,- to decree a strict foreclosure in favor of the mortgagee ; and such seems to be the law in Wisconsin. Hey ward v. Judd, 4 Minn. 483, 492 ; Pacer. Chadderdon, id. 499, 502; Drew v. Smith, 7 Minn. 301, 307 ; Bean v. Whitcomb, 13 Wis. 431. In Wisconsin, mortgages containing a power of sale may be foreclosed upon de- fault in a manner similar to that above mentioned. The mortgagor may redeem within one year, during which time he may retain possession. In an action in the court of chancery for the foreclosure of a mortgage, the defendant shall have six months to answer the bill or complaint. Six months' notice shall be given of the sale. When the action is brought for any interest, or instalment of the ])rincipal, aad there are other instalments to become due sub.->equently, such action will be OF FORECLOSURE. 241 dismissed upon payment, before order of sale, of the portion due ; if payment be made after the order is entered, the proceedings will be stayed, to be enforced by a further order of the court upon a subse([ueiit default. Wood v. Trask, 7 Wis. 566. It is also provided that the action for foreclosure shall be brought in the county where the lands are situated. The plaintiff in his complaint may pray for a judg- ment for any deficiency which may remain due after sale of the mortgaged premises, and judgment may be rendered accordingly, after but not as part of the foreclosure. Welp V. Gunther, 48 Wis. 543. A surety may be made a party to such judgment, which may be enforced against him as well as the mortgagor for the balance remain- ing after sale of the mortgaged premises. Annot. Stat. 1889, § 3154 et seq. In Hew Jersey and North Carolina, foreclosure is under the general jurisdiction of courts of equity. Gen. Stat, of New Jersey, 1896, p. 386, § 76 ; p. 2111, § 42 ; Averett v. Ward, Busbee's Eq. 192 ; Ingram v. Smith, 6 Ired. Eq. 97. In Kentucky, judgment may be rendered for a deficiency, as well as for fore- closure. Stat. 1894, § 1661; Chambers v. Keene, 1 Met. (Ky.) 289. And there is no redemption after a sale. See Downing v. Palmateer, 1 T. B. Mon. 64; Martin V. Wade, 5 T. B. Mon. 80 ; Caufman v. Sayre, 2 B. Mon. 202 ; Crutchfield v. Coke, 6 J. J. Marsh. 89. In Maryland, the same rules prevail ; and in a suit in chancery to foreclose a mortgage, the court may decree, that, unless the debt and costs be paid by the time fixed by the decree, the property mortgaged, or so much of it as may be necessary, shall be sold ; and such sale shall be for cash, unless the complainant shall consent to a sale on credit. Pub. Gen. Laws 1888, art. 16, § 187. But there may also be a strict foreclosure. In Mississqopi, on a suit for foreclosure, if the court shall think the complain- ant entitled to a decree, a reference may be made to the clerk, or a master, to compute the amount due, who shall proceed without notice to the parties, and make his report without delay ; the rejiort shall be confirmed, and a final decree passed, of course, unless cause be shown to the contrary. Annot. Code 1892, §§ 591, 592. There is no redemption after a sale. In Ohio, it is provided, that, in the foreclosure of a mortgage, a sale of the mortgaged property shall in all cases be ordered ; and when the same mortgage embraces separate tracts of land, situated in two or more counties, the sheriff of each county shall be ordered to make sale of the lands situated in his county ; and in making sale, the court may order it to be sold in yjarcels or entire. Rev. Stat. 1896, § 5316. In actions for foreclosure, the plaintiff may ask also a judgment for money. Ibid. § 5021. In Tennessee, when land is sold under a decree of a court of chancery upon a foreclosure, the mortgagor may redeem within two j-ears after such sale, unless upon a])plication of the complainant the court order that the property be sold on a credit of not less than six months nor more than two years ; and that, upon con- firmation thereof by the court, no right of redemption or re-purchase shall exist in the debtor or his creditor, but that the title of the purchaser shall be absolute. Code 1896, § 3811. In Connecticut and Vermont, a strict foreclosure is decreed in a court of chan- cery, whereby the title becomes absolute in the mortgagee, on the failure of the mortgagor to redeem within the time allowed by the decree. In the former State foreclosure may also be by sale of the premises. A petition to foreclose the mort- gage may be instituted against the heirs and creditors of a deceased mortgagor by general description. A foreclosilre prevents any further recovery, unless the per- VOL. II. — 16 242 MORTGAGES. sons liable are made parties to the foreclosure proceedings. Whenever any mortgace has been foreclosed, and the time limited by the court for redemjitioa has jiassed, the mortgagee, or person in whom such title has become absolute, shall forthwith make a certiticate describing the premises, the mortgage, the record of the same, and the time when the title became absolute ; winch certiticate shall be signed by the party, and recorded in the town where the projierty is situated. lu case of foreclosure by a party not having the legal right to the land, but who is entitled to the money secured by the mortgage, the title vests after the right of redemption has expired, upon the recording of the decree. Parties acquiring interest pendente lite are not bound, unless public record has been made of the proceeding to fore- close. Gen. Stat. Conn. c. 186. In Vermont, if the premises are not redeemed agreeably to the decree of foreclosure, the clerk of the court of chancery may is^sue a writ of possession to put the complainant in possession of the premises. Such foreclosure is not effectual as against subsequent purchasers, mortgagees, or attach- ing creditors, unless a copy of the record or decree of foreclosure is recorded in the town clerk's office where the land is situated, within thirty days after the expiration of the time of redemption. Stat. 1894, §§ 978, 979. Any subsequent attaching creditor may now be joined as defendant in proceedings to foreclose a mortgage. § 972. In certain cases, also, foreclosure may be by ejectment. § 1497. In Missouri, petitions to foreclose mortgages are filed in the circuit court of the county where the real estate is situated, against the mortgagor and the actual occuj)iers of such real estate ; and any person claiming an interest in the mort- gaged property may, on motion, be made defendant. Summons shall issue as in ordinary civil actions. When the mortgagor is not summoned, but notified by publication, and has not appeared, the judgment, if for the plaintiff, shall be, that he recover the debt and costs, to be levied on the mortgaged property. But if summoned, or appearing, such judgment shall be rendered with the additions, that if the mortgaged property be not sufficient to satisfy the debt and costs, then the residue shall be levied on other property of the mortgagor. A special fieri facias issues in conformity to the judgment uj)on which the property is sold by the sheriff of the county. There is no redemption after sale by any party to the proceeding. Rev. Stat. 1899, § 4342 et seq. A proceeding under the statute is had at law, and is not governed by the rules of equity ; but a party may foreclose by bill in equity, Riley v. McCord, 24 Mo. 265 ; or under power of sale, § 4-356. In Texas, under all judgments or decrees for the foreclosure of mortgages against persons other than executors or administrators, an order of sale shall issue to the sheriff of the county where the property subject to such lien or mortgage can be found, directing him to sell the same, if found, as under execution ; and if the pro- ceeds of such sale be insufficient to pay the judgment and costs, or if the propeiiy cannot be found, further execution may be issued for such balance or for the debt, against such defendant, as the case may be. The action is in the district court. Batts' Annot. Civ. Stat. § 1340 et seq. This mode of foreclosure does not exclude powers of sale. Morrison v. Bean, 15 Tex. 267, 269. In Iowa, no mortgage may be foreclosed in any other manner than by action in court by equitable proceedings, even if there is a power of sale. Upon judgment, the court issue a special execution for the sale of the mortgaged property ; but if this does not sell for enough to satisfy the execution, a general execution may be issued against the mortgagor or party who has assumed the mortgage. Bowen v. Kurtz, 37 Iowa, 239. If the premises consist of several parcels, they must, if distinct, be sold separately and not in a lurnp, and only enough of them to satisfy OF FORECLOSURE. 243 the debt. Boyd v. Ellis, 11 Iowa, 97 ; Maloney v. Fortune, 14 Iowa, 417. There is the same period of redemption allowed the mortgagor, or any person having a lien on the premises, as is provided in case of real estate sold on general execution. Wilson V. Wilson, 4 Iowa, 309, 312 ; Code 1897, §§ 3428, 4287 ei seq. In Kansas, it is })rovided that mortgages shall be foreclosed by petition in the district court of the county in wliich the real estate is situated, which is an equi- table proceeding. Deeds of trust are deemed mortgages so far as the method of foreclosure is concerned. A sale of the mortgaged property can only be made in pursuance of a judgment of a court of competent jurisdiction ordering such sale. Gen. Stat. 1897, c. 95, § 396. There is no redemption after sale. Kirby v. Childs, 10 Kan. 639. In Delaware, upon breach of the condition, a writ of scire facias may be sued out ; and, upon the entry of judgment for the plaintiff, he may have execution against the premises by levari facias, under which they are sold ; or, if there be no sale for want of bidders, a liberari facias may issue, under which so much of the mortgaged premises are set off by appraisement as shall satisfy the debt and costs. Laws 1893, c. Ill, §§ .'.5-60. In Pennsylvania, after the expiration of twelve mouths from the breach of the condition of a mortgage, the mortgagee, or any one claiming under him, may sue out a writ of scire facias from the court of common pleas for the county where the mortgaged lands lie. The action is in rem ; but all defences are open to the mortgagor. Mevey's Appeal, 4 Penn. St. 80. If the mortgagee obtains judgment, he may have execution by levari facias, by virtue whereof the mortgaged premises are taken on execution, and exposed to sale as in case of other sales on executioir ; but, for want of purchasers, they are delivered to the mortgagee or creditor. Prior parties are not affected. Helfrich v. Weaver, 61 Penn. St. 385. There is no redemption, and the pnrcTiaser's title is not affected by any revei'sal of judgment. Pepper &, Lewis' Dig. 1598. As to chancery jurisdiction in case of corporation mortgages, see McCurdy's Appeal, 65 Penn. St. 290. In Nebraska, on petitions to foreclose, the court may decree sales of the estates, and, upon a report made of sale may issue execution against other property of the mortgagor for the balance unsatisfied. But no proceedings can be had pending the petition and decree, unless authorized by the court. The sherifTs deed vests in the purchaser the same estate that would be in the mortgagee if the equity of redemption had been foreclosed. In other respects the proceedings are much the same as in Micliigan. Comp. Stat. 1899, § 6366 et seq. In N'ew Jersey, besides the method of foreclosure in chancery in all suits for the foreclosure and sale of mortgaged premises, where all the mortgaged premises are situated in the same county, the circuit court of said county shall have the same jurisdiction and powers as the court of chancery in like cases. Sale, when ordered, is made by a court officer, who gives the deed. There is no redemption. A sale may be only of a parcel, if divisible, and the whole debt is not due. No deficiency judgment is allowed, but suit is upon the bond for balance unsatisfied by fore- closure. Gen. Stat. 1895, pp. 385, 2111; or in equity against the party assuming the mortgage, Allen v. Allen, 34 N. J. Eq. 493. In Illinois, if default be made in the payment of any sum of money secured Viy mortgage on real property, and if the payment be by instalments, and the last shall have become due, the remedy of scire facias may be had at law on the mortgage. Tlie lands are sold to satisf}' the debt, subject to the same right of redemption as upon execution, Comp. Laws 1857, p. 976; Rev. Stat. 1880, c. 90, §§ 17-19. 244 MORTGAGES. Where a bill for a foreclosure shows that the mortgage was given for the entire purchase-money, no part of which has been paid, and the premises are but a slender and the only security for the debt, the mortgagors having absconded, a strict fore- closure is proper. Wilson v. Geisler, 19 111. 49 ; Young v. Graff, 28 111. 20, 29 ; Rev. Stat. 1874, c. 95, § 17. Foreclosure may be niade by sale by a sherilf, under a power. Rev. Stat. 1880, §§ 11, 14, 15. When it is in equity, a decree for the deliciency may be made. Ibid. § 16. In Maine, New Hampshire, Massachusetts, and Ehoclc Island, mortgages may be foreclosed by entiy into the mortgaged premises under process of law, or by entry in pais, openly and peacefully made; and such possession obtained in either mode, continued peacefully for a certain period, will forever foreclose the right of redemp- tion. This period of possession is three years, except in New Hampshire, where it is one year. In Maine, Massachusetts, and Ehodc Island, the entry must be made in the presence of two witnesses, and verified by their affidavit, and duly recorded ; and in the latter State such witnesses shall give to the mortgagee, or other person taking possession under him, a certificate of such possession being taken ; and the person delivering possession shall acknowledge the same to have been voluntarily done, before a justice of the peace ; which certificate and acknowledgment shall be recorded in the clerk's office of the town where such mortgaged estate lies. In Maine, the mortgagee may also enter into possession of the premises, and hold the same by consent in writing of the mortgagor or person claiming under him ; and in Massachusetts, a memorandum or certificate of the entry may be made on the mortgage-deed, and signed by the mortgagor or the person claiming under him, and recorded. In Maine and Massachusetts, in an action for possession, if the plaintiif is entitled to possession, and the defendant is the mortgagor or his assignee, or one entitled to hold under him, the court, on motion of either party, award a condi- tional judgment, that if the defendant shall within two months pay the sum found due on the mortgage, with interest and costs, the mortgage shall be void ; other- wise that the plaintiff" shall have execution for possession and for costs of suit. This writ of entry is so far like a bill in equity, that the court determine what is due upon the mortgage by the rules of equity. Holbrook v. Bliss, 9 Allen, 69 ; Hart V. Goldsmith, 1 Allen, 145, 147; Cronin v. Hazletine, 3 Allen, 324; Kil- born V. Robbins, 8 Allen, 466, 472. In such case, the mortgage may be redeemed within three years. In Maine, foreclosure may also be effected by a public notice in the State paper, and a record of the same in the registry of deeds ; or by causing an attested copy of such notice to be served upon the mortgagor or his assignee, and recording the same ; and in such case, if the mortgagor, or person claiming under him, does not redeem within three years after the first publication, or service of the notice, his right of redemption shall be forever foreclosed. In New Hampshire, a notice of the pos- session, the object of it, and a description of the mortgage and of the premises, must be published in some newspaper, the first publication to be six months before the time of foreclosure. And if the mortgagee be in possession, foreclosure is effected by publication in a newspaper of a notice, stating that from and after a certain day specified, and not more than four weeks after the last day of publication, such possession will be holden for the purpose of foreclosing the right to redeem the same for condition broken, and by retaining actual peaceable possession of the prem- ises for one year from and after the day specified in such notice. Pub. Stat. 1901, c. 139. In Rhode Island, any person also entitled to foreclose may prefer a bill to foreclose in the supreme court sitting in the county in which the premises are situ- OF FORECLOSURE. 245 ateJ ; which bill may be hoard, tried, and determined according to the usages in chancer}' and the principles of equity. See Maine, Rev. Stat. 1883, c. 90 ; Massa- chusetts, Pub. Stat. c. 181 ; Rhode Island, Gen. Laws, 1896, c. 207. The statute of Massachusetts, as to foreclosure of mortgages, applies only to legal mortgages. Wyman v. Babcock, 2 Curtis, C. C. 386. An entry on a jiart of the land mortgaged by one general description, followed by three years' possession, forecloses the whole land. Lennon v. Porter, 5 Gray, 318. So an entry on one of two separate tracts of land, both situated in the same county, and mortgaged by the same deed, on the same condition, is, as between the parties and their privies, an entry on the whole. Bennet v. Conant, 10 Cash. 163 ; Hawkes v. Brigham, 16 Gray, 561, 565. A mortgagee does not, by bringing a writ of entry to foreclose and obtain- ing a conditional judgment, waive his right to take possession of the land during the two months allowed to the mortgagor to pay the amount ascertained by the judg- ment to be due. Mann v. Earle, 4 Gray, 299. A second mortgagee of laud may enter and take possession for the purpose of foreclosure while the first mortgagee is in for the like purpose ; and, if the second mortgage is foreclosed before the first, such foreclosure will cut off the equity of redemption of that mortgage and all sub- sequent mortgage-rights, though such mortgages are held by the first mortgagee. Palmer v. Fowley, 5 Gray, 545. That a mortgagee buying at the foreclosure sale pays the debt pro tanto, though he refuses to execute the deed, see Hood v. Adams, 124 Mass. 481 ; Muhliz v. Fiske, 131 Mass. 110. 246 INCORPOREAL HEREDITAMENTS. CHAPTER LIT. INCORPOREAL HEREDITAMENTS. § 1185. General nature of incorporeal hereditaments. 1186. Incorporeal hereditaments in the United States. 1187. Eents defined. 1188. Rent service. 1189. Rents charge, rents seek, fee-farm rents. 1190. Rents service in the United States. 1191. Rents, how created. 1192. Estates in rents. 1193. Curtesy and dower in rents. 1194. Purposes for which rents created. 1195. Fee-farm rents unusual in this country. 1196. Remedy for recovering rents — Distress. 1197. Recovery by action. 1198. When grantor may take and hold possession. 1199. The form of action. 1200. Liability of assignee of the land. 1201. Distinction between rent reserved and one granted. 1202. Covenants for rent running with the land. 1203. Privity of estate required. 1204. Privity of estate defined. 1205. Covenants running with land further considered. 1206. Covenant for rent not assignable after due. 1207. Apportioning rents. 1208. Apportioning rents, continued. 1209. Apportionment as to time. 1210. Escheat — Extinguishment. 1211. Merger. § 1185. General Nature of Incorporeal Hereditaments. — Thus far, the subjects treated of in this work have referred chiefly to property of a corporeal nature, — something of which livery of seisin might be made. The property now to be spoken of consists of an intangible, incorporeal interest in, or right to, or out of, lands and tenements, of a nature sufficiently permanent to have applied to it the same idea of duration or quantity of ownership or estate as has thus far been applied to corporeal inheritances. Thus A may have an estate in possession in INCORPOREAL HEREDITAMENTS. 247 lands during his life ; B may have a riglit to these on A's death, or may have it upon condition that he survives A, or that A die without children. But he cannot touch or handle this interest ; and if he sells it, he can only pass it hy deed, since he has no present seisin which he can deliver to the pur- chaser. Here A has a corporeal and B an incorporeal property in the same land ; though B's interest in such a case, so far as it is a reversion or a vested remainder, is considered as of a mixed nature, at one time incorporeal, but capable of becom- ing corporeal by being united with the possession at the death of A} Hereditaments may, on the other hand, be purely in- corporeal, as, for example, what are called rights of common, or rights of way appurtenant to other lands. Thus A may own Blackacre, and have a right to go upon B's adjacent land to cut trees to burn on his own, or to pass across B's land to reach his own. Now, this is simply a right which he cannot sell and deliver over to a stranger separate from the land to which it is appendant, — nothing, in other words, corporeal or tangible. And yet it may be an inheritable right, which will survive to his heirs, and in wh-ich he may have an es- tate in fee-simple ; or it may be for his life only, in which case he would have a life-estate in it, in the same manner as he might have in corporeal property. But in no event can an incorporeal hereditament like this become a corporeal one. 2 Property like this is not, properly speaking, regarded as a tenement, nor is it land; but being something that is of a permanent nature, and may be inherited, it is called a hereditament.^ § 118G. Incorporeal Hereditaments in the United States. — Blackstone enumerates ten of the purely incorporeal heredita- ments. But as neither tithes, advowsons, commons, as under- stood in England, offices, dignities, corodies, nor pensions, are known to the American law as things of which an estate can be 1 Wms. Real Prop, 197. 2 Wras. Real Prop. 265. 8 2 Bl. Com. 17 ; Prest. Est. 13, 14. Burton, however, in his Compendium, applies the term "tenement" to incorporeal as well as corporeal hereditaments. Burt. Real Prop. §§ 4, 40 ; Van Rensselaer v. Read, 26 N. Y. 558, 566 ; Van Rensselaer v. Platner, 2 Johns. Cas. 24, 26. 248 INCORPOREAL HEREDITAMENTS. predicated,^ and as annuities are but claims of a personal nature,^ — and this rule still appears to be applied in Pennsylvania, where the statute Quia Emptores has never been adopted,^ — the only classes of incorporeal real property of which it is now proposed to treat are rents, franchises, and easements. § 1187. Rents defined. — Rent is defined to be a right to the periodical receipt of money or money's worth in respect of lands which are held in possession, reversion, or remainder, by him from whom the payment is due.* As technically defined, it is something which a tenant renders out of the profits of the lands or tenements which he enjoys.^ § 1188. Rent Service. — There was, before the statute of Quia Emptores, a custom for the owner of the feud, on parting with his entire estate, to reserve something to himself and his heirs by way of perpetual periodical service, or an equivalent thereto, by way of rent or return ; upon a failure to perform which on the part of the tenant, the owner of the rent might distrain for the same. This right of distress grew out of the tenure existing between the grantor and tenant, the latter owing fealty as well as rent for the estate. This periodical render was called a rent service. But as the statute of Quia Emptores abolished all tenure between a grantor in fee and his grantee, by destroying the possibility of reversion, it oper- ated to extinguish the fee in the owner of such a rent.^ But when there is a reversion, as fealty is always due from the tenant to the reversioner, a rent from a tenant for years to his reversioner is still a good rent service, and was treated of ac- cordingly, under the head of Estates for Years.' ^ By a law of Massachusetts in 1660, no cottage or dwelling-house was to be admitted to the privilege of commonage for wood, timber, and herbage, except " by consent of the town." See Col. Laws, 196 ; Thomas v. Marshfield, 10 Pick. 364, 367. 2 Wins. Pers. Prop. 165. 8 Wallace v. Harmstad, 44 Penn. St. 492, 496, 498. * Burt. Real Prop. § 1050. 6 Co. Lit. 142 a ; Watk. Conv. 273. 6 Smith, Land. & Ten. 90 ; 3 Prest. Abst. 54 ; Burt. Real Prop. §§ 1053, 1054 ; Van Rensselaer v. Read, 26 N. Y. 563 ; Wallace v. Harmstad, 44 Penn. St. 495, 498. ' Smith, Land & Ten. 90 ; Com. Dig. Rent, c. 1 ; ante, § 605 ; Com. Land. & Ten. 97. INCORPOREAL HEREDITxVMENTS. 249 § 1189. Rents Charge, Rents Seek, Fee-farm Rents. — It is not of rent service, as above explained, that it is proposed to treat in this chapter, but of rents, which, from their duration and transmissible and inheritable quality, come under the proper designation of incorporeal hereditaments. These are rents charge and rents seek, or what answer in many cases to both of them, fee-farm rents.^ "There are," say the court in V. Cooper, two ways of creating a rent : the owner either grants a rent out of it, or grants the lands, and reserves a rent. There is no such thing as a rent seek, rent service, or rent charge, issuing out of a term for years." ^ Thus, if an owner of land in fee grants it to another in fee, and in his deed reserves an annual sum of money, or something money's worth, to be paid by the grantee or his heirs or assigns to him and his heirs, or if, being owner in fee of the land, he grants to another and his heirs an annual sum to issue out of his said lands for ever, these annual payments thus granted or reserved are called rents, although not strictly anything in the way of profits reserved or to be rendered out of the thing granted.^ For this reason, while the common law gave to the reversioner, in case of a rent service, the remedy of distress for its recovery if unpaid, there was no such right attached to rents granted or reserved as above supposed, unless.it was so stipulated in the deed or indenture by which the rent was created. If the owner of the rent was empowered, at its crea- tion, to enforce its payment by distress, it was considered as charged upon the land, and therefore called a rent charged If no right of distress was attached to the rent at its creation, it was called a rent seek (siccus), or dry rent, being a mere right to recover the rent, without any right to seize upon the property out of which it was supposed to issue or be derived.^ By the statute 4 Geo. II. c. 28, § 5, a right of distress, whether for rent seek or rent charge, was given, so that, by the English 1 3 Prest. Abs. 54. ^ V. Cooper, 2 Wils. 375 ; Langford v. Selines, 3 Kay & J. 220, 229. See 5 Bligh, N. s. 63. 8 Watk. Coiiv. 273, Coventry's note, 276-278 ; 3 Prest. Abst. 55. * 2 Bl. Com. 42 ; Cornell v. Lamb, 2 Cow. 652, 659. 5 Wms. Real Prop. 270; 2 Bl. Com. 42 j Cornell v. Lamb, 2 Cow. 652, 659; Wallace v. Harmstad, 44 Penn. St. 495, 498. 250 INCORPOREAL HEREDITAMENTS. laws, the distinction between the two is substantially abro- gated.i * In New York, a rent reserved upon a conveyance in fee is a rent charge, and not a rent service.^ § 1190. Rents Service in the United States. — If in any of the States the statute of Quia Emptores has not been ado[)ted as a part of their common law, rents service in fee as well as for terms of years may still be in use. This is the case in Pennsyl- vania, and many cases have arisen there where the rent granted or reserved was in fee, and, if reserved, has been held to be a rent service, and not a rent charge, and where, as was the case at common law, a release of a part of the land, out of which the ground rent which had been thus reserved issued, discharged the rent pro rata only.^ § 1191. Rents, how created. — The nature and general inci- dents of the rents mentioned, regarded as interests in land of which estates may be predicated, are so nearly identical (except in the matter of enforcing them), that it is proposed to consider rents charge and seek together under the term of fee-farm rents. These rents may be created by reservation, by limitation of a lease, or by grant,* by bargain and sale, lease and release, or covenant to stand seised,^ which, as the reader will hereafter see, is substantially saying, in any form of con- veyance by which lands themselves may be conveyed. Where a rent is granted, it is itself the subject of the grant : where it * Note. — There was, under the feudal law, what was called a quit-rent, which was a fixed sum payable to the lord as seignior of a manor, by a tenant, upon a composition made with the lord, who gave up therefor his claim for indefinite services due from the tenant. 2 BI. Com. 96 ; Marshall v. Conrad, 5 Call, 364, 398. 1 Wms. Real Prop. 270, n. 2 Van Rensselaer v. Hays, 19 N. Y. 68 ; Van Rensselaer v. Chadwick, 22 N. Y. 32 ; Van Rensselaer v. Smith, 27 Barb. 104, 134, 139; Tyler v. Heidorn, 46 Barb. 439, 449, where there is a summary of the various points made and ruled in the Van Rensselaer cases in New York. 8 IngersoU v. Sergeant, 1 Whart. 337, where the subject is very elabo- rately examined. Franciscus v. Reigart, 4 Watts, 98, 116 ; 2 Sharsw. Bl. Com. 42, n. J Wallace v. Harmstad, 44 Penn. St. 495. The statute of Quia Emptores forms a part of the common law of New York. Van Rensselaer v. Hays, 19 N. Y. 68. * 3 Prest. Abst. 53. 6 Watk. Conv. 231 ; 3 CruUe, Dig. 273. INCORPOREAL HEREDITAMENTS. 251 is reserved, it is the lands that are the subject of the grant, and the rent comes in lieu of the land. § 1192. Estates in Rents. — The estate in the rent may be a fee-simple, a fee-tail, for life, or for years. To constitute a fee- simple, the rent must be reserved to the grantor, his heirs and assigns ; or, if granted, by like words of inheritance. If for years, it may be to one without words of limitation, or, as is often done, to one and his executors, administrators, and assigns. So the limitation may be to one in tail, with remainders over.^ The rent must, if created by reservation, be reserved for the feoffor, donor, or lessor, and not to a strauger,2 and this may be by deed poll.^ But it may be created by grant to a stranger.* A rent reserved upon a lease in fee, with a clause of distress, is such an interest in land as may be levied upon for the debt of him who owns it ; though, it seems, if it had been a rent seek, it would not be the subject of such a levy.^ When a rent has been once granted or created, it is itself a subject of grant afterwards like other estates,^ and is descendible to heirs.'^ It may be granted to one for life, with remainder over to another,^ though at common law an existing rent cannot be granted to take effect in futuro. But rents are expressly included in the statute of uses, 27 Henry VIII. c. 10, and may be conveyed to uses like land itself, as will be explained hereafter.^ § 1193. Curtesy and Dower in Rents. — Such a rent is subject to curtesy or dower like lands held in fee-simple or fee-tail,^*' the requisite seisin being a seisin in law, as there can be none in fact. And for that reason, where one has been once seised or possessed of a rent, he cannot be disseised, as the possession 1 Van Rensselaer v. Hays, 19 N. Y. 68 ; Watk. Conv. 280, 281 ; Wms. Eeal Prop. 275 ; 3 Cruise, Dig. 590 ; Tud. Lead. Cas, 177, 178. 2 Tliough Burton sa3's a reservation of a rent to a stranger wonld probably be considered a grant to him. Burt. Real Prop. § 1103; 3 Cruise, Dig. 278; Lit. § 346. 3 2 Dane, Abr. 452. ♦ IngersoU v. Sergeant, 1 "Whart. 337. 6 The People v. Haskins, 7 Wend. 463, 6 3 Prest. Abst. 53. ^ 3 Cruise, Dig. 285 ; Van Rensselaer v. Hays, 19 N. Y. 68. 8 3 Cruise, Dig. 292 ; Van Rensselaer v. Read, 26 N. Y. 538, 564, 572. 9 3 Cruise, Dig. 293, 294 ; Watk. Conv. 281. 10 3 Cruise, Dig. 291. 252 INCORPOREAL HEREDITAMENTS. always follows the right.^ The only mode of gaining a seisin of a rent is by accepting or receiving some part thereof.^ From tlie general analogy that exists between fee-farm rents and lands, in respect to estates therein and their incidents, it is not deemed necessary to pursue the subject into all its details ; but it may be proper to consider the purposes to which these rents usually are applied, and how far they prevail in this country. § 1194. Purposes for which Rents created. — They seem tO have been first adopted for the purpose of carving out an interest in lands in favor of some one other than the heir, with- out disturbing the feud. But as it was in derogation of the feudal rights, the law did not annex the remedy for enforcing the payment of the rent by distress, unless the parties specially agreed thereto. In modern days, rents are created for the purpose of raising jointures for married women, or making provision for heirs, by anticipation, to constitute them free- holders, or for raising money by way of anuuity chargeable upon real estate, and the like. And between these and mortgages there are obvious distinctions, though the intended effect may be the same. In the case of a mortgage, for instance, there is a debt to be returned to the mortgagee. In that of a rent, there is an absolute purchase, and nothing is to be returned to the purchaser but what he is to receive from year to year out of the estate. And if the owner of the land extinguish the rent by the payment of a sum of money, it is in the nature of a purchase instead of a redemption.^ Such a rent cannot of course continue any longer than the estate in the land of him who created it. If, therefore, he has a fee-simple, he may create a rent for a term of years, or for life, or in fee, though to have it a good rent it must be created by one who is seised of land ; for a rent cannot be granted or created out of an incorporeal inheritance, and it must be done by deed.* § 1195. Fee-farm Rents are unusual in this Country, but they are not unknown.^ And in New York, a rent charge reserved 1 3 Cruise, Dig. 295 ; Burt. Keal Prop. § 1116. 2 3 Cruise, Dig. 274. 3 Walk. Conv., Coventry's note, 276, 277. * Lit. § 218 ; Wms. Real Prop. 270 ; 2 Dane, Abr. 452. 6 3 Dane, Abr. 450 ; Adams v. Bucklin, 7 Pick. 121, 123, which was a caae of a INCORPOREAL HEREDITAMENTS. 253 out of a grant in fee is good, and descends to the heirs of him in whose favor it is reserved. Such covenants to pay rent run with the land as a burden ; such rent charge may also be devised. 1 Nor can the personal representative of the grantor, to whom rent was I'eserved, have any action to recover rent upon default happening after the grantor's death. Nor can the devisee of rent maintain an action against the personal repre- sentative of the original covenantor for any default of payment occurring after the covenantor's death.'^ § 1196. Remedy for recovering Rents — Distress. — The com- mon law gave the owner of a rent service the right to distrain the tenant's cattle or other personal property upon the prem- ises for the purpose of compelling the payment thereof ; and this right still exists in Pennsylvania.^ The English statute extended the right of distress to cases of rent charge and rent seck.^ The right of making distress in case of rent charge existed in New York until 1846, when it was abolished by stat- ute.^ It never existed in the New England States.^ But the common law right of distress, as modified by the statute 4 Geo. II. c. 28, lias been adopted as the law of many of the States. It is stated that the common law upon the subject of distresses for rent has been adopted very generally in the United States." As the purpose of this chapter is rather to define the right than to prescribe the forms, in detail, of the remedy, the reader must be referred to treatises designed for that purpose for the law as to when, where, and how distresses may be made use of as a means of enforcing the payment of rents.^ § 1197. Recovery by Action. — Whether there is a power of distress or not, the one to whom the rent is due may have a rent charge reserved upon a grant of land in fee. Alexander v. Warrance, 17 Mo. 228 ; Farley v. Craig, 11 N. J. 262 ; Wartenby y. Moran, 3 Call, 424; Scott v. Lunt, 7 Pet. .596, 602 ; Marshall i'. Conrad, 5 Call, 364, 406. 1 Van Rensselaer v. Hays, 19 N". Y. 68. 2 Van Rensselaer v. Read, 26 N. Y. 538, 565 ; Van Rensselaer v. Platner, 2 Johns. Cas. 17; AYilliams's App., 47 Penn. St. 283, 290. 3 Smith Land.,& Ten. 161, n.; 2 Sharsw. Bl. Com. 43, n. 4 Taylor, Land. & Ten. 231; 3 Prest. Abs. 54. 5 Guild V. Rogers, 8 Barb. 502. 6 2 Dane, Abr. 451; 3 Kent, Com. 473, n. 7 Smith, Land. & Ten. 161, n. 8 Smith, Laud. & Ten. (Morris's ed.) 157, 186; Tud. Lead. Cus. 188, 194. 254 INCORPOREAL HEREDITAMENTS. remedy by action at law to recover the same from him who liolds the land out of which it is payable. Thus where, upon a lease in fee, there was reserved a certain rent, and a covenant in the lease on the part of the lessee, binding himself and all liolding his estate to the payment thereof, it was held that a reversioner could recover rent, pro rata, from one who held a part of the leased estate.^ And the assignee of a rent may recover though he have no reversion in the land.^ And there is sometimes a right reserved to the holder of the rent to enter upon the premises, and either defeat the title of the owner thereof, as for a breach of a condition, or, what is more com- mon, hold the same until he shall have been reimbursed the rent out of the income of the estate. The form of tlie action, as well as the extent of the right of entry by the holder of the rent, depends upon the terms of the deed by which the rent was created. Thus one may enfeoff another in fee, reserving to himself and heirs a rent, with a condition that he may enter and repossess himself of the original estate upon non-payment thereof. This constitutes a conditional estate which the grantor or his heirs may be able to enforce, but not an assignee or grantee of the rent/^ This condition may be enforced by entry without previous notice and demand, if the parties so agree, by the instrument granting the estate.* But where, as is usual, a demand of the rent must be made before undertaking to enter and defeat the estate, the law is exceedingly strict as to the manner in which this is to be done.^ § 1198. "When Grantor may take and hold Possession. — In- stead of a condition giving to the grantor a right to enter and defeat the grantee's estate altogether upon non-payment of the rent reserved, the instrument may be so framed that the grantor may enter and hold possession until lie makes the rent out of the enjoyment of the estate, in which case the land goes back to the grantee or his assigns. And by the way of a use, to be hereafter explained, the right to enter for this pur- pose may be reserved to another than the grantor and his 1 Van Rensselaer v. Bonesteel, 24 Barh. 365. 2 Van Rensselaer v. Read, 26 N. Y. 564. 3 Lit. § 325, and note 84; Stephenson v. Haines, 16 Ohio St. 478. 4 Co. Lit. 201, note 85. 6 Ante, § 659. INCORPOREAL HEREDITAMENTS. 255 heirs.i ^nd this right to liold for the rent may be defeated at any time by the payment of the balance due ; nor is so nice an observance of the rule as to a demand of rent before makin Wheatley i;. Baugh, 25 Penn. St. 528; Haldeman v. Burckhardt, 45 id. 519. 332 INCORPOREAL HEREDITAMENTS. right to do.^ So where one sold another the right to draw- water from a spring in his land, and then sold the land to another, who dug a well in the same, twenty-seven feet from the spring, which cnt off its supply of water, it was held that the owner of the spring was without remedy .^ But if the per- colating waters have collected in a spring, and formed a natu- ral and defined watercourse by which they are discharged, one would have no right to dig in his own land so as to draw away, by underground percolation, the water from the spring, so as thereby to destroy this natural watercourse.^ And if the waters which have been diverted had formed themselves into a natural defined stream or watercourse, such diversion would be tlie ground of an action by the lower proprietor upon the stream, whether the same, where diverted, were above or un- derneath the surface.* On the other hand, the owner of land, whose underground supply of water has been cut off by one who does not own the land in which the act is done, may have an action for the loss thereby sustained. The onl}' ground upon which such act is to be justified is the right incident to the ownership of the land where it is done.° Nor may a land- owner poison or foul the water percolating through it, so as to render it deleterious in its qualities when it reaches the adjacent owner. ^ § 1292. No Prescriptive Rights in Underground Percolations. — From this right, jure naturce, to use and appropriate whatever is within one's own premises, and the impossibility there is, in the case of underground percolating waters, of knowing by one owner that the springs which supply the well or tlie spring of an adjacent owner are derived from the land of the former, no length of enjoyment by such well or spring owner of the use 1 Prickman v. Tripp, Skinn. 389 ; Cooper v. Barber, 3 Taunt. 99. 2 Bliss V. Greeley, 45 X. Y. 671, 674. 3 Gr. June. Canal v. Shugar, L. R. 6 Ch. 483, 488 ; Trustees of Delhi v. You- mans, 45 N. Y. 862; Washb. Ease. (4th ed.) 507-509. * Dudden v. Guardians, etc., 1 Hurlst. & N. 630 ; Dickinson v. Canal Co., 7 Exch. 301 ; Smith v. Adams, 6 Paige, 435 ; Radclitf v. Mayor, 4 N. Y. 200 ; Sad- dler V. Lee, 66 Ga. 45 ; Hebron Grav. Co. v. Harvey, 90 Ind. 192 ; Strait v. Brown, 16 Nev. 317 ; Shively v. Hume, 10 Oreg. 76. This last case was of an intermit- tent underground current. s Parker v. Bost. & M. R. R. Co., 3 Gush. 107. « Hodgkinsou v. Eunor, 4 Best & S. 229. EASEMENTS. 333 of the water thereof will give him any adverse prescriptive right against the adjacent landowner, since no one can be pre- sumed to have granted that of the existence of which he could have had no knowledge. The case of Balston v. Bensted ^ has been often cited as sustaining a different doctrine; and the opinion of Story, J., in Dexfcer v. Providence Aqueduct Co.,^ rather favors the idea that one may gain a prescriptive right to the use of water under such circumstances. But the question has been both directly and indirectly raised and discussed in several modern cases ; and it is believed tliat the law is now settled, so far as it has been settled at all, against the claim of a prescriptive right to the benefit of waters percolating through the land of another.^ § 1293. Right of Upland to Natural Drainage over Lo-wland. — Another natural right asserted in some States as incident to the ownership of land, is the right of a higher field to have the surface-water flow off upon a lower field. This right only applies to the natural flow of the water. If the owner of the higher field makes ditches or trenches, so as to cast the sur- face-water upon the lower field in large quantities at particular places, the owner of the lower field may resist this by embank- ments, or have an action for his injury.^ This, however, does not exclude proper cultivation of the soil.^ § 1294. Artificial "Watercourses. — There is a marked and im- portant distinction between the rights which may be acquired by a land or mill owner in a natural stream, and an artificial one which is created for temporary purposes, although these ^ Balston v. Bensted, 1 Campb. 463. 2 Dexter v. Prov. Aq. Co., 1 Story, 303. See also Greenleaf v. Francis, 18 Pick. 122 ; Chasemore v. Richards, 2 H. & N. 183 ; s. c. .5 H. & N. 982; Dickinson v. Canal Co. , 7 Exch. 282. 8 Roath V. Driscoll, 20 Conn. .^33, 541 ; Wheatley v. Bangh, 25 Penn. St. 528 ; Hoy V. Sterrett, 2 Watts, 330 ; Broadbent v. Ramsbotham, 11 Exch. 602 ; Frazier V. Brown, 12 Ohio St. 294, 311; Ingraham v. Hutchinson, 2 Conn. 584, 597; Washb. Ease. (4th ed.) 529-534. ♦ Hughes V. Anderson, 68 Ala. 280 ; Hicks v. Silliman, 93 111. 255 ; Mellor r. Pilgrim, 3 111. Ap. 476 ; s. c. 7 111. Ap. 306 ; Tenipleton v. Voshloe, 72 Ind. 134 ; Davis V, Londgreen, 8 Neb. 43 ; Adams v. Walker, 34 Conn. 466 ; Ogburn v. Con- nor, 46 Cal. 346 ; Freudenstein v. Heine, 6 Mo. Ap. 287 ; Lord v. Carbon Iron Man. Co., 33 N. J. Eq. 452 ; Conklin v. Boyd, 46 Mich. 56. ^ Bowman v. New Orleans, 27 La, Ann. 501 ; Gue.snard v. Bird, 33 id. 796 ; La. Rev. Code, art. 660. 334 INCORPOREAL HEREDITAMENTS. rights have been enjoyed for more than twenty yeai*s. Thus, in addition to tlie cases already cited in respect to natural streams, it is held that if the owner of the fountain-head of a natural stream within his land divert the waters thereof from their original chaimel and suffer them to flow in a new one for twenty years, and in that time an owmer below him has applied the water to the use of a mill, such owner of the fountain can- not again change its course to the injury of such mill-owner.^ So if the owner of two lots of land through which a stream of water flows sells one of them, neither he nor his grantee will have a right to stop or divei't the stream, since the right to the natural flow of the water is incident to and inherent in the land, in whosesoever hands it may be.^ But where the watercourse is an artificial one, created by the discharge of water artificially supplied, the riparian proprietors of the lands through which it flows, or the owners of mills or other hy- draulic works upon the same, are without remedy if the owners of the source of supply of such stream so change it as to im- pair or destroy the benefit of the same to such other owners or proprietors, especially if the original purposes of such water- course w'ere temporary in their nature. And this is true though such mill-owner or riparian proprietor may have en- joyed the same for more than twenty yeara.^ Thus where a channel was dug to drain the water from certain mines, and its outlet was into a stream wliich carried the plaintiff's mill, and the owner of the mines dug a new channel lower than the first, which drew down the water from the first, so that it could not feed the plaintiff's mill, it was held that the latter was without remedy for the loss. For, first, he knew the pur- poses for which the channel was dug, and therefore had no reason to suppose he could gain a perpetual right merely by enjoying it so long as to create a prescriptive grant to that 1 Belknap v. Trimble, 3 Paige, 577, 605 ; Delaney v. Boston, 2 Harring. 489, 491. 2 Tucl. Lead. Cas. Ill ; 3d ed. 174. 2 This rule has not been universally followed. Thus, where one constructed an artificial channel, and allowed water to flow through it and over the land of another for more than twenty years, it was held that the other had acquired a pre- scriptive right to have the flow of water in the artificial channel remain uninter- rupted. Shepardson v. Perkins, 58 N. H. 352 ; Reading v. Althouse, 93 Penn. St. 400, Cf. Bowne v. Deacon, 32 N. J. £q. 459, EASEMENTS. 335 effect ; and, second, because his enjoyment of the water was in no sense adverse to tlie owner of the channel, so as thereby to acquire an easement therein. Another illustration of the gen- eral proposition is that of the owner of a mine i)um{)ing the water from the same, and suffering it to flow for twenty years upon the land of a neighboring proprietor, and thereby enrich- ing it for agricultural purposes. The latter does not thereby gain a right to insist upon the owner of the mine continuing to pump the water, when he has no longer occasion to do so for his own purposes. And another instance where use will not give an adverse right is that of water falling from the eaves of one's house ; though enjoyed by another for twenty years, the owner may take it down, and put a stop to the same, if he choose.^ So where A had an artificial drain in his land for agricultural purposes, and suffered the water to flow therefrom to the land of B for twenty years, by which the land of the latter was benefited, it was held that if A deepened and changed his drain, thereby depriving B's land of its benefit, B was without remedy for the loss.^ But though the one who thus creates the flow of water may stop if he please, he cannot foul it with impunity while it continues to flow, to the injury of those below upon the stream.'^ § 1295. [The Right to cut Ice is a natural right incident to riparian ownership. There is the same right in the ice that there may be in the water, " for ice is water in another form." * The limitation, as in the case of the consumption of the water, is that the proprietor must not appreciably diminish the flow to the damage of the lower riparian owner.^] 1 Arkwright v. Gell, 5 M. & W. 203 ; Tud. Lead. Cas. 120 ; 3d ed. 199 ; Napier v. Buhvinkle, 5 Rich. 311 ; Wood v. "Waud, 3 Exch. 748 ; Magor v. Chad- wick, 11 Ad. & E. 571 ; Sampson v. Hoddiiiott, 1 C. B. n. s. 590; Washb. Ease. (4th ed.) 418-427. 2 Greatrex v. Hayward, 8 Exch. 291. See Wood v. Waud, 3 Exch. 778. 3 Wood V. Waud, 3 Exch. 777. * Brown v. Cunningham, 82 Iowa, 512; s. c. 48 N. W. Eep. 1042; s. c. 12 L. R. A. 583 ; Marsh v. McNider, 88 Iowa, 390 ; s. c. 55 N. W. Rep. 469 ; .s. c. 45 Am. St. Rep. 240 ; s. c. 20 L. R. A. 333 ; Hydraulic Co. v. Butler, 91 Ind. 134 ; s. c. 46 Am. Rep. 580 ; Ice Co. v. Guthrie, 42 Neb. 238 ; s. c. 60 N. W. Rep. 722 ; s. c. 28 L. R. A. 581. 6 Paine v. Woods, 108 INIass. 172; Howe v. Andrews, 62 Conu. 398 ; s. c. 26 Atl. Rep. 394. See ante, § 3, note 2. 336 INCORPOREAL HEREDITAMENTS. § 1296. Natural Right of Lateral Support. — Of a nature some- what akin to the easement of light connected with the owner- ship of a house is that of support, or the right of having one's land and the structures erected thereon supported by the land of a neighboring proprietor. The proposition may be stated thus : A, owning a piece of land without any buildings upon it, has a natural right of lateral support for his land from the ad- joining land. This right exists independent of grant or pre- scription, and is also an absolute right ; ^ so that if his neighl)or excavates the adjoining land, and in consequence A's land falls, he may have an action, although A's excavation was not care- lessly or unskilfully performed. This natural right does not extend to any buildings A may place upon his land ; and there- fore if A builds his house upon the verge of his own land, he does not thereby acquire a right to have it derive its support from the land adjoining. ^ Such adjacent owner may excavate his own land for such purposes as he sees fit, provided he does not dig carelessly or recklessly ; and if in so doing the adjacent earth gives way, and the house falls by reason of the additional weight thereby placed upon the natural soil, the owner of the house is without remedy. It was his own folly to place it thcre.^ But if it shall have stood for twenty years with the knowledge of the adjacent proprietor, it acquires the easement of a support in the adjacent soil. [This is the English doc- trine, but the American authorities take an opposite view, on the ground that the adjacent proprietor is without means to 1 Stimmel v. Brown, 7 Houst. 219 ; s. c. 30 Atl. Rep. 996 ; Schnltz v. Bower, 57 Minn. 493 ; s. c. 59 N. W. 631. 2 Thurston t'. Hancock, 12 Mass. 220 ; s. c. 7 Am. Dec. 57 ; Myer v. Hobbs, 57 Ala. 175; Winn v. Abeles, 35 Kan. 85 ; s. c. 10 Pac. Rep. 443. 8 Angus V. Dalton, L. R. 6 App. Cas. 740 ; Partridge v. Scott, 3 M. & W. 220; Wyatt V. Harrison, 3 B. & Ad. 871 ; Wilde v. Minsterley, 2 Rolls, Abr. 564, 565 ; Thurston v. Hancock, 12 Mass. 220, 229 ; Callender v. Marsh, 1 Pick. 418; Gil- more V. Driscoll, 122 Mass. 199 ; White v. Dresser, 135 Mass. 150 ; Panton v. Hol- land, 17 Johns. 92 ; Myer v. Hobbs, 57 Ala. 175 ; Buskirk v. Strickland, 47 Mich. 389 ; Bait. & Pot. R. R. Co. v. Reany, 42 Md. 117 ; Shafer v. Wilson, 44 Md. 268 ; Wier's App., 81 Penn. St. 203 ; Stevenson v. Wallace, 27 Gratt. 77. Cf. McMillen V. Watt, 27 Ohio St. 306. It has been held that where the whole value of land is its minerals, which can only be obtained by destroying it, as in getting gold by hydraulic mining, the right of lateral support does not exist as between owners of adjacent lanil, both using theirs in this manner. Hendricks i'. Spring Valley Mining Co., 58 Cal. 190. EASEMENTS. 337 secure the removal of a building which its owner has an abso- lute right to maintain.^] Every one has so far a right to have his own soil sustained by that of his neighbor, that the latter may not dig so near to the land of the former as to cause the same to fall into the excavation by its own natural weight. He ought to guard against such a consequence by proper care and the application of proper means of support. The right of lateral support, in such case, is an incident to the land itself. In the language of Rolle : " It seems that a man who has land next adjoining to my land cannot dig his land so near to my land that thereby my land shall fall into the pit ; and for this, if an action were brought, it would lie."^ [And the right to damages for removal of the support does no^ de- pend on negligence, but on the violation of the absolute right to support.^] But this right of a landowner to support his land against that of the adjacent owner does not, as before stated, extend to the support of any additional weight or structure that he may place thereon. If therefore a man erect a house upon his own land so near the boundary-line thereof as to be injured by the adjacent owner excavating his land in a proper manner, and so as not to have caused the soil of the adjacent parcel to fall if it had not been loaded with an additional weight, it would be damnum absque injuria, a loss for which the person so excavat- ing the land would not be responsible in damages.* But even if the house had been recently erected, the adjacent owner will be responsible for excavating upon his own land so as to injure 1 Hide V. Thornborongh, 2 Cur. & K. 250; Mitchell v. Rome, 49 Ga. 19; Richart y. Scott, 7 Watts, 460; Handhuid v. McManus, 100 Mo. 124; s. c. 13 S. W. 207 ; Tuiistall v. Cliri.stian, 80 Va. 1 ; Sullivan r.Zeiiier, 98 Cal. 346 ; s. c. 33 Pac. Rep. 209 ; s. c. 20 L. R. A. 730. 2 Wilde V. Minsteiley, 2 Rolle, Abr. 565 ; Schultz v. Bower, 57 Minn. 493 ; s. c. 59 N. W. Rep. 631 ; s. c. 47 Am. St. Rep. 630. 3 Humphries v. Broaden, 12 Q. B. 743; Thurston v. Hancock, 12 Mass. 229 ; Lasala v. Holbrook, 4 Paige, 169; Farrand v. Marshall, 21 Barb. 409; Wyatt r. Harrison, 3 B. & Ad. 871 ; Bibby v. Carter, 4 Hurlst. & N. 153 ; McGuire v. Grant, 25 N. J. 356 ; Charless i'. Rankin, 22 Mo. 566 ; Hay v. Cohoes Co., 2 N. Y. 162 ; Richardson v. Verm. Cent. R. R. Co., 25 Vt. 465. * Thurston v. Hancock, 12 Mass. 220 ; Gihnore v. Driscoll, 122 Mass. 199 ; Partridge v. Scott, 3 M. & W. 220 ; Lasala v. Holbrook, 4 Paige, 169 ; Mc(".uire v. Grant, 25 N. J. 356 ; Charless v. Rankin, 22 Mo. 556 ; Napier ;;. Bulwinkle, 5 Rich. 311 ; Wyatt w. Harrison, 3 B. & Ad. 871 ; Palmer v. Fleshecs, 1 Sid. 167 ; Gayford v. Nicliolls, 9 Exch. 702 ; Rogers v. Taylor, 2 Hurlst. & N. 828. VOL. II. — 22 338 INCORPOREAL HEREDITAMENTS. or impair its foundations, if the injury results from tlie negli- gent, unskilful, and improper manner in which it was done.^ Or, in the words of the court : " So long as the excavation did not extend beyond their [defendants'] own land, and was not negligently or unskilfully done, any injury to an adjacent pro- prietor would be damnum absque injuria.'''' ^ But in a late Eng- lish case the doctrine seems to be sustained, that, if the digging would not have caused any appreciable damage to the adjacent land in its natural state, it would not be the ground of an ac- tion. And this position is laid down in a case where the build- ings of the plaintiff were thrown down as a direct or remote consequence of the digging.^ § 1297. Lateral Support — Streets. — [The owner of land abutting on a higliway has no right to the lateral support of the soil of the street as against the public authorities, who, acting within the scope of their authority, lower the grade of the street.* But the right to the lateral support of the soil of the street exists as against a private corporation in no way connected with the government, which obtains authority to change the grade for its own purposes.^] § 1298. Foregoing Principles applied to Mines. — If the own- ership of a mine be severed from tliat of the surface-soil, the one who excavates for the minerals must be careful to supply all necessary support for the surface-soil if his excavation endan- gers its natural support.^ As this right of support for the sur- 1 Dodd V. Holme, 1 Ad. & E. 493 ; Panton v. Plolland, 17 Johns. 92; Cbarless V. Rankin, 22 Mo. 566, 573 ; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453; McGuire v. Grant, 25 N. J. 356. See Foley v. Wyeth, 2 Allen, 131 ; Richardson v. Verm. Cent. R. R. Co., 25 Vt. 465, 471 ; Washb. Ease, c. 4, § 1 ; 4th ed. 580. 2 Austin V. Huds. Riv. R. R. Co., 25 N. Y. 338, 346. 8 Smith V. Thackerah, L. R. 1 C. B. 564 ; Backhouse v. Bohomi, 9 H. L. Cas. 503 ; 8. c. suh nom. Bouomi v. Backhouse, E. B. & E. 622 ; Stroyau v. Knowles, 6 Hurlst. & N. 454 ; Brown v. Robins, 4 Hurlst. & N. 186. 4 City of Quincy v. Jones, 71 111. 231 ; 2 Dill. Mun. Corp. §§ 989, 990 ; Sel- den V. Jacksonville, 28 Fla. 559 ; s. c. 10 So. Rep. 457. This is the prevailing doctrine in America ; but it is somewhat qualified in Ohio aud Kentucky. See 2 Dill. Mun. Corp. § 990, note. 6 Baltimore & Potomac R. R. Co. v. Reaney, 42 Md. 117. 6 Humphries v. Brogden, 12 Q. B. 739 ; Harris v. Ryding, 5 M. & W. 60 ; Nick- lin V. Williams, 10 Exch. 259 ; Washb. Ease. c. 4, § 4 ; 4th ed. 630 ; Smart v. Morton, 5 E. & B. 30 ; Dugdale v. Robertson, 3 Kay & J. 695, 699, unless the surface-owner had authorized the mine-owner to work his mine without having EASEMENTS. 339 face-land, moreover, is absolute and independent of the question of negligence,^ it is no defence to say that the excavations were prudently made, or such as were customary in that neighbor- hood.2 A custom to mine without leaving sufficient support for the surface is bad.^ A grant to coal-land, with all the privi- leges usually appurtenant to the working and using coal-mines, does not give the right to remove the surface-support, even if such is the usual mode of mining, for the usage is an illegal one ;* but if the grant of land contain a release of all liability for any injury resulting from removing the surface-support, the owner of the coal may remove the whole without liability.^ This right of support for the surface-land is limited to land, and does not extend to buildings, unless they have stood thereon for twenty years ; if, however, the owner of the surface have had a house standing thereon for twenty years, the one exca- vating for minerals is bound to leave or provide support for such house as well as the soil.^ § 1299. Of Support of Adjoining Houses. — In some cases, the owners of adjacent houses acquire, or are subjected to, the easement of a lateral support for the wall of one against that of the other. This is the case where one builds several houses in a block, and afterwards sells them to different persons.'^ But wheic two persons have two houses in juxtaposition, neither has a right to the support of the other, independent of a grant ; nor does any length of time furnish evidence of such a grant.^ ^^ supports. Rowbotham v. Wilson, 8 E. & B. 123 ; Seranton v. Phillips, 94 Penn. St. 15 ; Carliii i;. Chappel, 101 Penn. St. 348 ; Hext v. Gill, L. R. 7 Cli. App. 6'J9. 1 Carliii V. Chappel, 101 Penn. St. 348 ; Erickson v. Mich. Land. & Ir. Co., 60 Mich. 604. Cf. Livingston v. Monigona Coal Co., 49 Iowa, 369. 2 Jones V. Wagner, 66 Penn. St. 429. 3 Horner v. Watson, 79 Penn. St. 242. * Coleman v. Chadwick, 80 Penn. St. 81. 6 Seranton v. Phillips, 94 Penn. St. 15. 6 Rogers v. Taylor, 2 Hurlst. & N. 828 ; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538 ; Jones v. Wagner, supra. But it is difficult to see why the American doctrine which un(iualifiedly denies a ])rescrij)tive right to lateral support beyond the absolute right to have the soil supported in its natural state (see a7Ue, § 1296), should not be applied to this class of cases. ^ Richards v. Rose, 9 Exch. 218 ; Webster v. Stevens, 5 Duer, 553 ; Eno v. Del Vecchio, 4 Duer, 53; Solomon v. Vintner's Co., 4 Hurlst. & N. 598. « Peyton v. Loudon, 9 B. & C. 725; Napier i;. Bulwinkle, 5 Rich. 311. Cf. Adams v. Marshall, 138 Mass. 228. 340 INCORPOREAL HEREDITAMENTS. Still, the owner of cither house in that situation may render himself liable to the owner of the other if he tear down his house in a wasteful, negligent, or improper manner, and thereby injure the adjoining one, even though the owner of the latter omit to take the care which h6 might have exercised, and by which he might have avoided the consequences.^ But if the owner of the building to be removed give notice to the other of his intention to take it down, he is not bound to exercise any extraordinary care iii securing the adjacent building from injury thereby .^ § 1300. Party-walls. — The above has been more fully noticed ill order to distinguish these cases from those of party-ivalls, so called, which form an important subject in the law of ease- ments. By party-walls are understood walls between two estates which are used for the common benefit of both ; as, for instance, in supporting the timbers used in the construction of contiguous houses standing thereon. But where one owner set his house so as to cover a portion of the land of an adjacent owner, who thereupon erected a house adjoining this, and entered its beams into this wall to the line which divided the two estates, it was held not to constitute it so far a party-wall that the first could call upon the other to pay for any part of it. Having placed it on the second man's land, it gave him a right to use so much of it as stood upon his land, unless this was done by some agreement between them.^ Where by agree- ment between two adjacent owners of lots, that one might erect a wall for a building partly on his lot, and partly on the adjacent lot, and the other was to pay for half the wall when he, his heirs or assigns, should build on his lot, and use it as a party- wall, it was held to be a personal covenant, and did not bind the assigns of the one, or give the assigns of the other a right to recover for the half of the wall when occupied by the erec- tion of a building.^ Building a wall at a joint expense by two 1 Walters r. Pfeil, Mood. & M. 362. 2 Massey v. Goyder, 4 C. & P. 161. See cases, Washb. Ease. (4th ed.) 604. 3 Orman v. Day, 5 Fla. 385 ; Sherred v. Cisco, 4 Sandf. 480 ; Bank of Escon- dido V. Thomas, (Cal.) 41 Pac. Rep. 462. * Cole V. Hughes, 54 N. Y. 444; Scott v. McMillan, 76 N. Y. 141 ; Hart v. Lyon, 90 N. Y. 663. Contra, Keteltas v. Penfold, 4 E. D. Smith. 122 : Picliard- son V. Tobey, 121 Mass. 457 ; Brown v. Pentz, 1 Abb. Dec. 227. See;;os<, § 1301. EASEMENTS. 341 parties, which stands one half upon the land of each, does not make them tenants in common thereof. Each owns his part in severalty, though each has a right to use the wall as an easement. But if one sees fit to carry up his part higher than the part standing upon the adjacent land, he docs not thereby become liable to the owner of the other half if he does not injure him in the use of the wall.^ If a wall, erected in the manner and by the parties above supposed, is used by them for twenty years for the purpose of supporting their respective buildings, it acquires the proper character of a party-wall.^ And where a proper party-wall stands one half upon the land of each of the adjoining parties, neither can underpin his half of it separately, if by so doing he injures the house of the other. And if the doing it in that way was an act of carelessness, the other owner, if injured thereby, may maintain an action for the injury.^ § 1301. Party-walls, continued. — It does not seem to be nec- essary that a party-wall should stand half upon each of the adjoining parcels of land. It may stand half upon each or wholly upon one, and may, or may not, be the common prop- erty of the two proprietors. The rights of the parties in respect to the same may be collected and determined from the manner in which the parties have used the same for the period of time requisite to create a prescriptive right.* The rights of adjoining landowners in party -walls in cities are frequently defined by an agreement under seal, in which it is agreed between the owners of the adjoining lots, their heirs and as- signs, that either may build a party-wall, half on each lot, and that the wall shall remain the property of the builder until the other owner uses it as a party-wall and pays half the cost of building. Under such an agreement it has been held that any subsequent purchaser of the vacant lot who uses the wall must 1 Matts V. Hawkins, 5 Taunt. 20 ; Dubois v. Beaver, 25 N. Y. 127. 2 Eno V. Del Vecchio, 4 Duer, 53 ; Dowling v. Hennings, 20 Md. 179. 3 Bradlee v. Christ's Hosp., 4 Mann. & G. 761. 4 Cubitt u. Porter, 8 B. & C. 257 ; Wiltshire v. Sidford, id. 259 ; Schile v. Brokhaus, 80 N. Y. 614. See Washb. Ease. c. 4, § 3 ; 4th ed. 605. The subject o^ party-walls is fully treated of, in the light of tlie French law, in Le Page's edition of Desgodet's Lois des Bdtiments, c. 3, § 2, art. 1 ; Mitrs Mitoyens, pp. 39--122 ; Du- bois V. Beaver, supra ; Dowling v. Hennings, supra. 342 INCORPOREAL HEREDITAMENTS, pay for that use, whether the agreement is considered a cove- nant running with the land or not. If it is, he pays under the agreement ; if not, he pays for the use of the wall.^ The pay- ment extinguishes the covenant, and it seems that no one of the former owners can be held to make the payment.^ The agreement should be under seal, otherwise the half of the wall standing on the vacant lot will belong to the owner of that lot, and he can use it or sell it without paying for it.^ In New York it has been held that if an oral contract is made between the owners of two adjoining lots to build a party-wall, and one party refuses to proceed in the contract, after partial comple- tion and expense incurred by the other, tlie latter may recover half the agreed price in equity, not for the breach of the oral contract, but as money in lieu of specific performance.^ If there is no agreement, the owner of land who builds a wall half on his own land and half on his neighbor's cannot recover half the cost from his neighbor who uses the wall ; yet if "that neighbor knew that the one who built the wall expected to recover half the cost from him, and allowed him to proceed in ■ that expectation, and afterwards used the wall, it has been held that he must contribute half the cost.^ Under such an agree- ment as has been mentioned, if the one who builds the wall builds it negligently, and perhaps if he builds it with proper care, and the wall falls and injures buildings on the other lot, he is liable in damages.^ § 1302. Easements of Part-owners of a House. — Somewhat analogous to easements in party-walls is that which the owner of the lower half of a dwelling-house may acquire to have his part protected by the roof over the upper part. The upper part, in such a case, becomes servient to the lower ; but the owner of the latter cannot compel the owner of the roof to repair it, unless he has gained such a right by usage or grant. But he may himself enter upon and repair it when necessary.'' 1 Richardson v. Tobey, 121 Mass. 457. - Standish v. Lawrence, 111 Mass. 111. ^ Toy V. Boston Penny Savings P>ank, 115 Mass. 60. * Rindge v. Baker, 57 N. Y. 209. 6 Day V. Caton, 119 Mass. 513. « Gorham v. Gross, 125 Mass. 232. Cf. Schile v. Brokhaus, 80 N. Y. 614. ^ Pom fret v. Ricroft, 1 Wms. Saund. 557, n. 1 ; Tud. Lead. Cas. 127 ; 3d ed. -19. EASEMENTS. 343 But while the Scotch and French laws are full and minute in prescribing the relative rights and duties of the owners of dis- tinct parts of the same house, the common law is singularly de- fective in this respect. That there may be separate freeholds in different portions of the same house has already been stated. And it is well settled that the owner of any one part has no right to do anything which shall impair or cause an injury to the other part or parts of such house. ^ But this does not meet the question what the owner of one part is bound to do in the way of repairing his own premises if, without his act, they become damaged or decayed. In one case, Kent, Ch., was inclined to adopt in equity the French law, by which the walls of the house, or any other parts which are of common use and benefit to the entire structure, are the subjects of a common charge for repair to all the owners.^ And in a case in Massa- chusetts, the court, in speaking of co-tenants of a house suffer- ing it to go to decay, say : " Neither can complain of the other until after request and refusal to join in making repairs." ^ In another case in the same court. Parsons, C. J., refers to a case from Keilwey which implied an obligation on the part of the owner of the lower part to repair the timbers of that part. But Lord Holt doubted the law.* It was intimated by the same judge (Parsons) that a writ de domo reparanda would lie in favor of one of the owners against the other. But the court of Connecticut held that no action at law would lie in favor of one of such owners against the other — the owner of the lower story, for instance, against the owner of the upper one — for not repairing the roof, and that his only remedy would be in equity.^ There is a decision, however, in Modern Reports which holds that in such a case the owner of the lower room may have an action against the owner above to compel him to repair his roof, or the owner above against tlie one below to compel him to maintain his foundation.^ So that the limit and 1 Harris v. Rydiiig, 5 M. & W. 60, 76 ; Dugdale v. Robertson, 3 Kay & J. 700. - Campbell v. Mesiev, 4 Johns. Ch. 334. Cf. Antoniarchi v. Russell, 63 Ala. 356. 3 Doane v. Badger, 12 Mass. 65, 70. * Loring v. Bacon, 4 Mass. 575 ; Keilwey, 98 b, pi. 4 ; Tenant v. Goldwin, 6 Mod. 811 ; s. c. 2 Ld. Raym. 1089, 1093. 5 Clieeseborough v. Green, 10 Conn. 318. '^ Anon., U Mod. 7. 344 INCORPOREAL HEREDITAMENTS. extent of these reciprocal rights and liabilities may be regarded as yet undefined by the common law. The more modern cases seem to go to confirm the doctrine, that there is no remedy at common law for the owner of one part of a house to recover of the owner of another part of it for repairs made for him upon his part, though the other part is thereby benefited. This was held in case of tenants in common.^ So where the house con- sisted of two tenements adjacent to each other.^ So where one owns an upper story, and repairs the roof.^ But if the subject of property be owned in common, and cannot be divided, and one make necessary repairs after requesting the other to join in making them, and he neglects or refuses to do so, it seems that he may call on his co-tenant for contribution.* § 1303. Easement to carry on Offensive Trade. — One may acquire, as against his neighbor, a right to carry on a noisome and offensive trade upon his own premises by having exercised the right, without objection, for the term of at least twenty years.^ § 1304. Easement of Fishery. — ■ A several or exclusive right of fishery in the estate of another may be acquired by an ad- verse, uninterrupted, and exclusive use and enjoyment of the same for more than twenty years,^ unless when the use began the owner were a minor, in which case no prescriptive right can be gained but by twenty years' enjoyment after he shall have become of age. And the same is true if the owner were insane.' And if the use began in the life of a father, his death, and the descent of the estate upon his minor heir, will sus[)cnd 1 Calvert v. Aldrich, 99 Mass. 74. 2 Pierce v. Dyer, 109 Mass. 374. 3 Ottumwa Lodge v. Lewis, 34 Iowa, 67 ; Cheeseborough v. Green, 10 Conn. 318 ; Graves i: Berdan, 26 N. Y. 501 ; McCormick v. Bishop, 28 Iowa, 233, 239, 240. * Mumford v. Brown, 6 Cow. 475 ; Coffin v. Heath, 6 Met. 80 ; Wa.shb. Ease. (4th ed.) 643-647. In Leigh v. Dickeson, 12 Q. B. D. 194, this is limited to such repairs as are necessary to prevent destruction or decay, and not to ordinary repairs. 5 Elliotson V. Feetham, 2 Bing. N. C. 134 ; Dana v. Valentine, 5 Met. 8. But not against the public. Ante, § 1285, n. 6 Tinicum Fishing Co. v. Carter, 61 Penn. St. 29 ; Hart v. Hill, 1 Whart. 138 ; Beckman v. Kreamer, 43 111. 448. Or by grant. Matthews v. Treat, 75 Me. 594 ; Wyman v. Oliver, id. 421. "< Edson V. JIunsell, 10 Allen, 557. EASEMENTS. 345 the cacquisition of the prescriptive right during such minority. But if the enjoyment is continuous, and the periods during the life of the ancestor, and after the heir arrives at age, added together, will make an aggregate period of twenty years, it will be sufficient.! jv^q easement of fishery in public rivers can be gained by prescriptive user against the State, no matter how long it may have continued.^ [Nor can one prescribe for a several fishery in the estate of another without alleging some estate of freehold in himself.^] § 1305. Easement of Division Fence. — A right in the nature of an easement may arise by grant or prescription in favor of the owner of one parcel of land to have the occupant of an adjacent parcel make and maintain a fence upon the dividing- line between the parcels. Such right would of course be ex- tinguished if the same person were to become the sole owner of both parcels.* But if the estates were sold in parcels to dif- ferent purchasers, the burden or benefit, as the case might be, would pass with the parcels of the respective estates, as some- thing charged upon, or appurtenant to, the same.^ The party, however, who was bound to maintain the fence would not be liable for damage occasioned by cattle, from want of or defect in such fence, unless they had been rightfully upon the adja- cent land.^ § 1306. Right to maintain Wharf. — Where one erected a wharf below low-water mark, and enjoyed the use of it long enough to acquire a prescriptive right to maintain it there, the right was held to be limited to the mere maintenance of the wharf itself, and did not extend beyond the land covered by 1 Melvin v. Whiting, 13 Pick. 184. See Hargr. Law Tracts, 5. •^ State V. Franklin Falls Co., 49 N. H. 240, 254 ; State v. Roberts, 59 N. H. 256, 257 ; Tinicum F. Co. v. Carter, 61 Penn. St. 36. And see Lincoln v. Davis, 53 Mich. 275. Nor against the right of navigation by the public. McCready v. Virginia, 94 U. S. 391 ; Cobb v. Bennett, 75 Penn. St. 326. a Beach v. Morgan, 67 N. H. 529 ; s. c. 41 Atl. Ptep. 349. * Boyle V. Tamlyn, 6 B. & C. 329 ; Rust v. Low, 6 Mass. 90, 97 ; Binney i'. Hull, 5 Pick. 503 ; Adams v. Van Alstyne, 25 N. Y. 232. Such fence, it seems, may be placed one-half upon the land of each conterminous owner, if there is no prescription to the contrary. Sparhawk v. Twichell, 1 Allen, 450 ; Duffy v. N. Y. & Harlem R. R. Co., 2 Hilton, 496 ; Harlow v. Stinson, 60 Me. 349 ; Brouson v. Coffin, 108 Mass. 175. 6 Adams v. Van Alstyne, 25 N. Y. 232, 235. 6 Pool V. Alger, 11 Gray, 489. 846 INCORPOREAL HEREDITAMENTS. the wharf, so as to give him the easement of wharfage for ves- sels adjacent to the same.^ But the owner of land bounded upon the sea may, it seems, build a wharf adjoining his land, and enjoy it as his own property, if he do not thereby inter- "i'- fere with the free navigation by the public.^ This right of a riparian owner to construct a wharf adjoining his land and extending it beyond low-water mark, so far as it applies to Lake Champlain, is denied by the court of Vermont,^ and by the Illinois court as to Lake Michigan.* So a question has been made how far access to tidal water by the owners of land adjoining the same is so much of an incident of ownership thereof as to entitle them to damages if they are deprived thereof by means of an embankment, like a railroad con- structed by legislative authority along in front of such lands, but not actually occupying any part thereof. The weight of opinion in the leading English case^ appears to be in favor of such a claim. But in the American cases cited below the doc- trine is denied, unless some part of the land of such owner is appropriated in the construction of such embankment.^ But if one without right extend his wharf beyond low-water mark into navigable waters, it does not give a right to any other person to enter upon and use the same.'^ § 1307. Easements acquired by Custom. — There is a claSS of cases where it is difficult to determine whether the right claimed is an easement belonging to a person as the owner or occupant of some particular estate, or is one which he is at liberty to avail himself of as a customary right, to which the residents of a particular town or locality are entitled. In some instances, as in the case of a way, a landing-place, and the like, the same individual can prescribe for its use both as an easement belonging to his estate and as a customary right by 1 Gray v. Bartlett, 20 Pick. 186. 2 Burrows v. Gallup, 32 Conn. 493, 501 ; Yates v. Milwaukee, 10 AVall. 497 ; Watson V. Peters, 26 Mich. 508, 51" ; Weber v. Harbor Comm'rs.. 18 Wall. 57, 64. « Austin V. Kutland, etc. R. R. Co., 45 Vt. 215. * Revcll V. People, 177 111. 468 ; s. c. 52 N. E. Rep. 1052. 6 Buccleuch v. Metrop. Board, L. R. 5 H. of L. 438. 6 Stevens v. Patersoii, etc. R. R., 34 N. J. 532 ; Gould v. Huds. Riv. R. R., 6 N. Y. 522 ; Tomlin v. Dubuque, etc. R. R., 32 Iowa, 106. ' Wetmore v. Brooklyn Gas Co., 42 N. Y. 384. EASEMENTS. 347 reason of his residence.^ Whether, therefore, the right claimed depends upon custom or prescription, must be referred to the circumstances whether it is a local usage or a personal claim, or a claim dependent upon a particular estate. If the claim is a customary one, it may be sustained if it be an easement only in alieno solo, as for a way, to take water from a spring, for liberty to play at rural sports, to draw nets on another's land, to pass free of toll, for a public landing-place, and the like.2 § 1308. No Customary Rights of Common. — But a customary right to take profits in another's land, such as taking away gravel or sand for building, and the like, cannot be acquired in favor of the residents in any particular town or locality, though it may be by grant or prescription in favor of an individual as attached to a particular estate, or of a body politic and its suc- cessors.2 But for a body politic, like a town, to acquire a pre- scriptive right, requires that the acts by which it is claimed to have been done should be corporate acts, and prescribed for in a que estate; since the acts of individuals, unless done by authority of the town, will not be sufficient.^ A prescriptive right to take profits in another's land must, however, be for specific purposes, and limited in extent. Thus, where one owning a brick-kiln claimed a right to dig in another's land so much clay as he had occasion for using at his kiln, and had enjoyed it thirty years, it was held to be a bad prescription, 1 Perley v. Langley, 7 N. H. 233; Kent v. Waite, 10 Pick. 138, 142 ; 2 Steph. Com. (1st Am. ed.) 34. '•! Perley v. Langley, 7 N. H. 233 ; Coolidge v. Learned, 8 Pick. 503, 505 ; 2 Steph. Com. (1st Am. ed.) 34 ; Race v. Ward, 4 E. & B. 702. 3 Perley v. Langley, 7 TST. 11. 233 ; Merwin v. Wheeler, 41 Conn. 14 ; 3 Dane, Abr. 21, 248 ; Thomas v. Marshfield, 10 Pick. 364 ; Sale v. Pratt, 19 Pick. 191, 197; Green v. Putnam, 8 Cush. 21 ; Commonwealth v. Low, 3 Pick. 408, 413 ; Bost. Water Pow. Co. v. Bost. & Wore. R. R. Co., 16 Pick. 512 ; Blewett v. Tregonning, 3 Ad. & E. 554 ; Race v. Ward, 4 E. & B. 702 ; Waters v. Lilley, 4 Pick. 145 ; Bland?;. Lipscombe, 4 E. & B. 714, n.; Washb. Ease. (4th ed.) 139 ; De la Warr v. Miles, 17 Ch. Div. 535 ; Neill v. Devonshire, L. R. 8 App. Cas. 135, 154. And see ante, § 1227. A crown grant to " inhabitants " of a profit A ]?rendre to cut wood in a royal forest is good. Willingale v. Maitland, L. R. 3 Eq. 103. And where the right to the profit is claimed by inhabitants under a grant to the cor- poration, it will be good as a trust. Goodman v. Saltash, L. R. 7 App. Cas. 633. * Green r. Chelsea, 24 Pick. 71, 79 ; Wa-shb. Ease. (4th ed.) 142-144; Nudd v. Hobbs, 17 N. H. 525. 348 INCORPOREAL HEREDITAMENTS. since it might extend to carrying off the entire parcel of the other's land.^ § 1309. Remedies for Obstructions to Easements. — If the owner of the servient estate do anything to obstruct, interfere with, or impair the enjoyment of an easement therein, the owner of the dominant estate may maintain an action therefor, even though he may not be able to prove any injury and actual damage to have been occasioned thereby ; because a repetition of such acts might in time ripen into an adverse right. The law in such cases will presume a damage, in order to enable the party to vindicate his right.^ Or the owner of the dominant 1 Clayton v. Corby, 5 Q. B. 415 ; Wilson v. Willes, 7 East, 121. And see Good- man V. Saltash, L. R. 7 App. Cas. 633, 646. 2 Atkins V. Bordman, 2 Met. 457, 469 ; Nicklin v. Williams, 10 Exch. 259 ; Webb V. Portland Co., 3 Sumn. 189 ; BlodgRtt v. Stone, 60 N. H. 167 ; Creighton V. Evans, 53 Cal. 55 ; Wiley v. Hunter, 1 East. Rep. 228. Bower v. Hill, 1 Bing. N. C. 549, where the defendant was held liable for building over a channel through which the plaintiff had a water-way, although at the time it was choked up and impassable. Bolivar Mg. Co. v. Neponset Mg. Co., 16 Pick. 241; Bliss v. Rice, 17 Pick. 23. " It is sufficient to show a violation of a right." Embrey v. Owen, 6 Exch. 353 ; Ashby v. White, 2 Ld. Eaym. 938 ; Stowell v. Lincoln, 11 Gray, 434, 435 ; Fitzpatrick v. Boston & M. R. R., 84 Me. 33 ; s. c. 24 Atl. Rep. 432. If actual damages are inflicted, the measure is the injury done by the act complained of. Gilmore v. DrLscoll, 122 Mass. 199 ; Johnson v. Arnold, 91 Ga. 659 ; s. c. 18 S. E. Rep. 370. If injury is caused to the plaintiff's business, he may recover for that, but not for estimated future profits. Shafer v. Wilson, 44 Md. 280. Cf. Schile V. Brokhaus, 80 N. Y. 614. In an action for fouling a stream, the plaintiff may recover a sum whicb will compensate him for actual loss suffered from the resulting uselessness of his water-works, erected by him for using the water of the stream for domestic and other purposes. Sanderson v. Penn. Coal Co., 102 Penn. St. 370 ; and also the value of the house of the superintendent of the water-works, and leases of land taken for the erection of the works. Schuylkill Nav., etc. Co. v. French, 81* Penn. St. 366. But the damages should not include an estimated amount of future injury, for the defendant may stop the nuisance. Sanarable character, the case did not call for the interposition of a court of equity, and that if the defendants claimed to be entitled to that amount of water, the right should be tried in an action at law before an application is made for an injunction. Westbrook Man. Co. v. War- ren, 1 East. Rep. 608. In Lockwood Co. v. Lawrence, supra, it was held that an injunction would be granted without first establishing the right at law where the injury is irreparable ; e. g. where riparian proprietors deposit refuse material from their saw-mills in the stream. It has been held that if the threatened injury is to be done under an existing legislative grant, as where a corporation is proceeding, under its charter, to erect locks in a river, a court of equity will not restrain its proceeding, although the corporation has not acted under the charter for more than twenty-five years. Ottaquechee Co. j». Newton, 2 East, Rep. 222. 2 Tad. Lead. Cas. (3d ed.) 230 ; Washb. Ease. c. 5, § 5 ; 4th ed. p. 707; Canny V. Andrews, 123 Mass. 155; Steere v. Tiffany, 13 P. I. 568; Vogler v. Geiss, 51 Md. 407; Dikes v. Miller, 24 Tex. 417, 424. 3o0 INCORPOREAL HEREDITAMENTS. had acquired an easement of light and air for a certain window in his house, walled up the window, and kept it so for seven- teen years, during which time the owner of the adjacent lot built thereon, and the original owner subsequently opened his window again, it was lield that he had by his first act aban- ■ doned and lost the easement, and could not require the adjacent owner to remove the obstruction. Upon an actual suspension of the use, if he intends to retain the right, he ought to do some act to indicate this intention.^ The question of abandon- ment is, however, one for the jury ; and in order to have a mere non-user by the owner of a dominant estate for less than twenty years operate as an abandonment, he must have done such acts as reasonably led the adjacent owner to believe he had abandoned the easement, who must thereby have been led to incur expense upon his own estate, acting upon such belief.^ § 1311. Mere Non-user insufficient. — But a mere non-user for less than twenty years will not in any case operate as an abandonment of an easement, though originally acquired by user.3 And where it has been created by express grant, no length of non-user will in most, if not all, cases operate as an abandonment where there have been no hostile or adverse acts done by the owner of the servient estate during that time, ex- tinguishing such right and creating an adverse prescription.* 1 Moore v. Eavvson, 3 B. & C. 332; Dyer v. Sanford, 9 Met. 395, 402 ; Manning V. Smith, 6 Conn. 289. 2 White's Bank v. Nichols, 64 N. Y. 65 ; Parkins v. Dunham, 3 Strobh. 224 ; Stokoe V. Singers, 8 E. & B. 31, where stopping vvindow.s on the inside for nineteen years was held not to abandon the easement. But it seems a bona fide purcliaser of adjacent land will be protected in the enjoyment of the property as it appears at the time of his purchase. Corning v. Gould, 16 Wend. 531. Even a public ease- ment in a highway is liable to be lost by non-user ; but an encroachment upon a highway, if of less duration than the period of statutory prescription, will not de- stroy the easement. Fox v. Hart, 11 Ohio, 416 ; Davies v. Huebner, 45 Iowa, 574. Contra, although continued more than the statutory period, St. Vincent Or|)han Asylum v. Troy, 76 N. Y. 108, and cases there cited. See State v. Alstead, 18 N. H. 6n"; Holt v. Sargeant, 15 Gray, 102 ; Smyles v. Hastings, 22 N. Y. 224 ; State v. Culver, 65 Mo. 607. 8 Williams v. Nelson, 23 Pick. 141 ; Hatch v. Dwight, 17 Mass. 289 ; Emerson V. Wiley, 10 Pick. 310 ; White v. Crawford, 10 Mass. 183 ; Parkins v. Dunham, 3 Strobh. 224 ; Ersk. Inst. 371 ; Ward v. Ward, 7 Exch. 838 ; Wilder v. St. Paul, 12 Minn. 192 ; Pratt v. Sweetser, 68 Me. 344 ; Steere v. Tiffany, 13 R. I. 568. * Jewett V. Jewett, 16 Barb. 150, which was a case of a watercourse ; Ang. Wat. Cour. § 252 ; Lindeman i;. Lindsay, 69 Peuu. St. 100 ; Erb v. Brown, id. 21G ; EASEMENTS. 351 §1312. Acts which work Abandonment. — There are, how- ever, acts which, if done by the party entitled to the easement, and found to be done with an intent to abandon the same, will have that effect. Thus, if a mill-owner tears down his mill, with an intent not to occupy the privilege again, he leaves it open to any one below or above to occupy. Or if he do any acts indicating an abandonment, accompanied by a declaration of the intention with which it is done, it will operate an extin- guishment of the right, especially if others are thereby led to incur expense in occupying it. And the mere suffering a dam and mill which had been in part washed away to remain in that condition for twenty years has been deemed to be an abandonment.^ But, as already stated, while an abandonment must be effected by some act, and a mere declaration of an in- tention to abandon will not be sufficient, whether the act shall amount to an abandonment or not, depends upon the intention with wliich it is done. Thus, where one had an ancient pond and a flow of water to it, and dug three other ponds and took the water to them, suffering the first to become filled with rubbish, and it turned out that he had not good title to the land on which the last-mentioned ponds were dug, it was held, that he had a right to resume the occupation of the first, and to make use of the water for that purpose.^ § 1313. Easement destroyed by Executed License. — So an easement may be abandoned or suspended by a license to the owner of the servient estate to do acts upon his own estate which operate perpetually to destroy or temporarily to suspend the easement, if he executes this license ; for such a license, when executed, is irrevocable. Thus, if one, having an ease.- Bombaugli v. Miller, 82 Penn. St. 203 ; Day v. Walden, 46 Mich. 575 ; Kiehle v. Heulings, 38 N. J. Eq. 20 ; White v. Crawford, 10 Mass. 183 ; Chandler v. Jam. Pond. Aqned. Co., 125 Mass. 544 ; Welsh v. Taylor, 134 N. Y. 450 ; s. c. 31 N. E. Rep. 896 ; s. c. 18 L. R. A. 535 ; Arnold v. Stevens, 24 Pick. 106, a case where a right to dig mines was held not to be lost by forty years' non-user ; Smiles v. Hast- ings, 24 Barb. 44 ; s. c. 22 N. Y. 224; Bannon v. Angier, 2 Allen, 128 ; Jenuison V. Walker, 11 Gray, 423. But non-user for more than twenty years, united with an adverse use of the servient estate inconsistent with the existence of the ease- ment, will extinguish it. Smith v. Langewald, 140 Mass. 205. 1 Liggins V. Inge, 7 Ring. 682, 690, by Tindal, J. ; French v. Braintree Mg. Co., 23 Pick. 216 ; Hatch v. D wight, 17 Mass. 289. '■^ Hale i;. Oldroyd, 14 M. & W. 789 ; Dyer v. Sanford, 9 Met. 395. 352 INCORPOREAL HEREDITAMENTS. merit of light and air over another's land, authorizes him to erect a wall, which he does, and thereby obstructs the enjoy- ment of these, the easement will be lost, as long as the wall stands, as he cannot revoke a license executed upon the licen- see's own land. ^ § 1314. Change of Use evidencing Abandonment. — So the owner of an estate may destroy an easement belonging to it, if he so alters his estate as materially to increase the burden upon the servient estate, especially if the easement is of a nature not divisible, and the increase cannot be separated from the original servitude. If it can be thus separated, tlie original may remain unimpaired. Thus, if one have a footpath, and use it with horses, he would be liable in trespass for such use, but would not thereby lose his easement of a footway .^ But where one had an easement of light by a certain window, and stopped it up, while he opened another in a different place and of a different size, it was held, that he had no right to use these, and was without remedy upon their being stopped by an adjacent owner.^ But the mere enlargement of an old window, or changing one kind of house into another, which does not increase the burden upon the servient tenement, and where the change is not in the substance, but in the mere quality of the dominant tenement, as altering a fulling-mill into a grist-mill, requiring no more water to carry it, or substituting one kind of wheel for another, does not impair the right to enjoy the light in the one case, and the use of the water in the other, to the extent of the original easement.^ So the change of a 1 Dyer v. Sanford, 9 Met. 395, 402 ; Tud. Lead. Cas. 110, 130 ; 3d ed. 191, 231 ; Skrainka v. Oertel, 14 Mo. App. 474; Liggins v. Inge, 7 Bing. 682, where a mill- owner authorized a riparian proprietor above to lower the bank in his own land, and thereby diminish his quantity of water. Winter v. Brockwell, 8 East, 308, the case of a license to put a skylight over the servient estate, stopping the air, etc. Morse v. Copeland, 2 Gray, 202 ; Dyer v. Sanford, 9 Met. 395 ; Addison v. Hack, 2 Gill, 221 ; Elliott v. Rhett, 5 Rich. 405, 418, 419. A parol release of an easement does not destroy it. Dyer v. Sanford, supra; Erb v. Brown, 69 Penn. St. 216. 2 Garritt v. Sharp, 3 A. & E. 325 ; Tud. Lead. Cas. 132 ; 3d ed. 233. 3 Blanchard v. Bridges, 4 A. & R. 176 ; Cherrington v. Abney, 2 Vern. 646. * Saunders v. Newman, 1 B. & Aid. 258 ; Tud. Lead. Cas. 132, 133 ; 3d ed. 236 ; Chandler v. Thompson, 3 Camp. 80 ; Luttrel's case, 4 Rep. 87 ; Whittier *;. Co- checo Mg. Co., 9 N. H. 454 ; Washb. Ease. c. 5, § 3 ; 4th ed. p. 699. EASEMENTS. 353 crooked channel of a watercourse to a straight one will not affect the right to maintain it.^ § 1315. Illustration. — The owner of an ancient mill had acquired, as such owner, a right to flow the land of another above his mill. He took down the mill, and erected it at a l)()iut above the former site, and ran it there for some years. While he was so running it, the plaintiff purchased the land formerly flowed. The mill having been carried away, after having stood nine years, the owner rebuilt it upon its former site, and flowed the land, which he formerly had done. It was held he had, by this act of abandonment, lost the easement of a right to flow the plaintiff's hmd.'-^ § 1316. Merger of Dominant and Servient Estates. — By unity of possession of the dominant and servient estates in the same person, by the same right, the easement before existing in one in favor of the other is extinguished and lost, or suspended, according to the nature of the estates which are thus united.^ If the dominant estate be for years, while the servient is in fee, such union will operate only as a suspension, and not as an: extinguishment of the prior existing easement. It will revive upon the determination of the estate for years. In such case there is a union of possession, but not of seisin. To operate as an extinguishment of the easement, the tenant of both tene- ments must have the same estate of inlieritance in both, equal ill validity, quality, and all other circumstances of right.* But if the title to one of the two tenements turns out to be defec- tive, and is thereby defeated, the unity of the seisin alone, in the mean time, will not be held to have extinguished the ease- ment previously existing.^ So where the owner of a dominant estate, to which an easement of drawing water by aqueduct- 1 Hall V. Swift, 6 Scott, 167 ; Bullen v. llunnels, 2 N. H. 255. - Taylor v. Hampton, 4 M'Cord, 96. 8 Atwater v. Bodfish, 11 Gray, 150 ; Wilder v. Wheeldon, 56 Vt. 344. * Thomas v. Thomas, 2 C. M. & R. 41 and note ; Pearce v. McClenaglian, 5 Rich. 178; Tud. Lead. Cas. 130; 3d ed. 230; Tyleru. Hammond, 11 Pick. 193, 220; Grant I'. Chase, 17 Mass. 443; Binney u. Hull, 5 Pick. 503; Atlanta Mills V. Mason, 120 Mass. 244. 8 Tyler u. Hammond, 11 Pick. 193. So, where the owner of the dominant estate which was mortgaged, purchased the servient estate, there was no merger as against a purchaser at mortgage sale. Capron v. Greenway, 74 Md. 289 ; s. c. 22 Atl. Rep. 269. VOL. II. — 23 354 INCORPOREAL HEREDITAMENTS. pipes over a servient tenement is appendant, buys in the ser- vient estate, and then cuts off the pipes, the easement is extinct at once.^ And in such a case, if the owner of both the estates sells what had been the servient estate to another, the ease- ment does not revive again, unless expressly reserved in mak- ing such conveyance.^ But if that ease or accommodation which, while the estates were separately owned, constituted an easement in favor of one, remains in use, and is apparent and continuous, and reasonably necessary to the enjoyment of what had been the dominant estate, it would, upon a division of the estate by conveyance, revive without any express words of grant.^ § 1317. Exceptions. — But unity of possession of two parcels does not have this effect upon rights in a natural stream of water flowing through them both. And if the owner were to sell the lower one, he would not have a right to divert the water from the same, since a right to enjoy the flow of the water was appurtenant to the land itself, and passed with the land. So if one have a mill and a race-way by an artificial channel below it to take off the water from the mill, and he conveys the mill only, the right to use the channel as a race- way would pass with it as an appurtenance. So it might be with an artificial drain, designed for the benefit of two houses, if the owner sell one of them. Whether the right to use such drain passes with the house or not, depends upon whether its use is separable, and capable of being separately enjoyed or not.* But where the owner, for instance, of two tenements, one of which had been used in connection with the other so afe thereby to enjoy light for its windows, sold that tenement to one with " all the lights, easements, rights, privileges, and appurtenances," and at the same time sold the other tenement to another, it was held, that, under the terms of the grant, the right to light through its windows across the other parcel would pass. But this, of course, is by force of the language of 1 Tud. Lead. Cas. 112 ; 3d ed. 199. 2 Manning v. Smith, 6 Conn. 289; Collier v. Pierce, 7 Graj', 18, 20; Johnson V. Jordan, 2 Met. 234, 239 ; Ersk. Inst. 370. 8 Dunklee v. Wilton E. R. Co., 24 N. H. 489 ; Grant v. Chase, 17 Mass. 443; Seibert v. Levan, 8 Penn. St. 383 ; Washb. Ease. c. 5, § 2 ; 4th ed. p. 690. * Johnson v. Jordan, 2 Met. 234 ; Collier v. Pierce, 7 Gray, 18, 20. EASEMENTS. 355 the grant, and not properly as an easement, appurtenant to the same.^ As easements or servitudes are incorporeal riglits, affecting lands whicli belong to another proprietor, few of them are capable of proper possession. The lands, indeed, which are charged with the servitude, may be possessed; but it is the owner of the servient tenement who possesses these, and not he who claims the servitude. The use, therefore, or exercise of the right, is to servitudes what seisin is to land itself.2 § 1318. Of Mines and Mining Rights. — Tiewed in one light, a property in mines is strictly an incorporeal one ; in another, it is as decidedly that of a corporeal hereditament. This grows out of the fact already stated, that there may be two distinct and separate freeholds in the same parcel of land, if it contain minerals, quarries of stone, and the like, the one embracing the surface, the other the mines. And these may belong to separate and distinct owners. This has now become a familiar doctrine.^ Besides this, there may be distinct ownerships in the minerals contained in the same parcel of land. One may own the iron, another the limestone : so one may own one vein of coal, and another a separate vein, if distinguishable, lying beneath or by the side of the other, within the same parcel of land.* On the other hand, whoever owns the surface is presumed to own, and would originally actually own, what- ever minerals there might be beneath such surface, until he shall have granted away the one or the other, and thus separated their ownership. But in doing this he may, as in the grant of the land itself, part with the full title and entire property,^ or he 1 Swansborough v. Coventr)', 9 Bing. 305. 2 Eisk. Inst. 353. 3 Ante, § 21 ; Adam v. Briggs Iron Co., 7 Ciish. 361, 366 ; Caldwell v. Fulton, 31 Penn. St. 475, 478 ; Foster v. Runk, 2 East. Rep. 636 (Penn. Sup. Ct.) ; Neill i-. Lacy, id. 6l0 ; Stewart v. Chadwiek, 8 Iowa, 463, 468 ; Barnes v. Mawson, 1 M. & Sel. 84 ; Benson v. Miners' Bank, 20 Penn. St. 370 ; Clement v. Youngman, 40 Penn. St. 341. * Caldwell o. Copeland, 37 Penn. St. 427. * He may also make a lease of the minerals for a terra of years. But if the in- strument, though purporting to be a lease, grants the right to take all the coal beneath the surface of the land, and the grantee binds himself to mine and remove all that coal, and to pay a certain price per ton, the contract being binding till all the coal is mined, and the rights, covenants, and obligations being expressed as 356 INCORPOREAL HEREDITAMENTS. may carve out a partial interest and ownership which shall create only an easement in the same, while he retains the fee ill liimself. Tlius he may grant to another the entire body of minerals within his land, retaining only his property in the surface, whereby he would create an independent freehold and inheritance in his grantee ; or he may grant a right or privilege to take minerals from his land without parting with the fee in any part of the same, and may still retain his ownership in all the minerals contained therein which shall not have been taken and appropriated by his grantee. In the latter case, he only creates and grants an easement to his grantee, a mere incor- poreal hereditament. Many of the questions, tlierefore, which have arisen in this country, have turned upon the point, whether the grant under which the claimant makes title was of the entire mineral as one freehold, or of a right to take it in the nature of an easement. From the impossibility of making livery of seisin of minerals in place in the earth, the English courts were formerly inclined to treat grants of them in the light of incorporeal hereditaments. But in this country, where the delivery and recording of a deed have so generally been deemed equivalent to livery of seisin, this strictness has not been observed. But still, in both countries, the inquiry often turns upon the terms of the grant, whether of the entire mineral, or a right to take it, not as realty, but under a right to convert it into personalty by working or mining it.^ An early and leading case upon tliis subject is that of Lord Mount- joy, which is reported in various places. In that case, the grantor of a manor reserved to himself by covenant from the grantee a right to dig for ore in the waste of the manor, and to dig turfs there sufficient to make alum and copperas. It was held to be an incorporeal hereditament, and one which was not the subject of division so as to be exercised by several different owners of the same right.^ In the above case, the V>iii(ling the parties, their heirs and assigns, and executors and administrators, the effect of the instrument is an actual grant of the coal, and not a lease. Del,, Lack. & W. R. R. Co. V. Sanderson, 2 East. Rep. 250 (Penn. Sup. Ct.) ; Hope's App., Sid. 728. 1 Caldwell v. Fulton, 31 Penn. St. 478 ; Shep. Touch. 96 ; Haiiley v. Wood, 2 B. & Aid. 724 : Clement v. Youngman, 40 Penn. St. 341 ; Hope's App., supra. 2 Huntington and Mountjoy's case, Godb. 17 ; .s. c. 4 Leon. 147 ; s. c. 1 An- derson, 307. See also Caldwell v. Fulton, supra. EASEMENTS. 357 right was not to an unlimited dominion over the ores and turf. So where the grant was not of the ore in a particular locality in soUdo. But a grant of an exclusive right to search for and dig and carry away iron-ore and limestone in a certain parcel of land, the grantee paying so much for every ton of ore he should take from the land, was held to be an incorporeal hereditament even in respect to the limestone. And it was held generally, that where the grant is of an undefined part of the profits of land, like a right to dig turfs and carry them away, it would not pass a title to the land itself. ^ Such a grant may perhaps be of the nature of a mere license, although it be exclusive in its character.^ But where the grant was of a right to dig coal under the grantor's land, described " to any extent," it was held to be the grant of complete dominion over the mineral therein, and to carry a freehold interest therein. The court say : " Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such." And though the grant in this case was of a right to take the coal, it was held to bo a grant of the coal itself as a freehold.^ As a consequence of this double ownership of the surface and mines below, no mine-owner is affected by any acts of possession for gaining an adverse title done upon the sur- face.* Nor can one gain a title to mines by prescription, because prescription applies only to incorporeal hereditaments. But one may acquire a title to a mine by adverse, exclusive enjoyment of the same against the owner thereof. So he may, by prescription, acquire the right to work a particular mine, but not the exclusive ownership thereof.^ In accordance with 1 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. 2 Silsby V. Trotter, 29 N. J. Eq. 228 ; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248 ; Clement v. Youngman, 40 Penn. St. 341 ; Caldwell v. Copeland, 37 Penn. St. 427 ; Co. Lit. 4 a ; Bain bridge on Mines, etc., 254, 255 ; 4th ed. 369, 370 ; Grubb V. Bayard, 2 Wall. Jr. 81 ; Hanley v. Wood, 2 B. & Aid. 719. ' « Caldwell V. Fulton, 31 Penn. St. 478 ; Armstrong v. Caldwell, 53 Penn. St. 284, 287 ; Hope's App., 3 East, Rep. 728 (Penn. Sup. Ct. ). * Del. & Hud. C. Co. v. Hughes, 183 Penn. St. 66 ; s. c. 38 Atl. Rep. 568 ; s. c. 38 L. R. A. 8-26 ; .s. c. 63 Am. St. Rep. 743. Where the severance was by deed, see Caldwell v. Copeland, 37 Penn. St. 427 ; s. c. 78 Am. Dec. 436 and note. Sli". Riddle v. Brown, 20 Ala. 412 ; s. c. 56 Am. Dec. 202. ^ Caldwell y. Copeland, supra; Adam v. Briggs Iron Co., 7 Cush. 361, 366 ; Shep. Touch. 96. 358 INCORPOREAL HEREDITAMENTS. the above doctrines, a lease of the right and privilege to mine or take away stone or coal from certain veins in the lessor's land is the grant of an interest in land, and not a mere license to take coal.^ Another incident to the distinctive character between the grant of a mine, and of a right to take an unde- fined part of the minerals in a certain parcel of land, has already been stated. In the first, the right is susceptible of subdivision of ownership by conveyances from the owner of the entire interest ; whereas the mere right to take minerals is an entire thing, and is not divisible so as to be shared by several claiming under the original proprietor thereof, and a conveyance of part of it extinguishes it altogether.^ § 1319. California Mining Claims. — There has grown up in a pretty large region of this country a peculiar system of laws in relation to mining rights, which it seems proper to notice as a part of the American law on the subject. These laws took their rise in California upon the discovery of the extensive de- posits of precious metals with which that country abounds, and have been, as is understood, substantially adopted in the other new States and Territories in which these metals are found. They apply only to operations for minerals upon the public lands ; while in respect to mines or lands containing mineral deposits, which belong to individuals as private prop- erty in fee, the ordinary rules of the common law serve to de-' fine and ascertain the rights of their proprietors.^ The policy of that State has been, from an early period in its history, to encourage the opening and working of mines upon the public lands. By her legislation upon the subject, she established the policy of permitting all who desired to work her mines of gold and silver with or without condition. But as the fee of the land was still held to be in the State until sold and con- veyed, the common law afforded but little aid, by the way of 1 Harlan v. Lehigh Coal, etc., 35 Peiin. St. 287, 292; Caldwell v. Fultou, supra; Sheets v. Allen, 89 Penn. St. 47. Cf. Hope's App., supra. 2 Mountjoy's case, Godb. 17 ; Caldwell y. Fulton, swpra ; Van Rensselaer v. Rad- cliff, 10 Wend. 639. 3 Henshaw v. Clark, 14 Cal. 460, 464. The custom among miners of appro- priating mining claims on unoccupied lands, and working them at a certain per- centage of return products, seems to have been borrowed from the ancient Spanish laws. Desloge v. Pearce, 38 Mo. 598. EASEMENTS. 359 precedent, in fixing the rights of parties who undertook to execute the license thus created. And yet, as in oi'der to do this it often required the expenditure of large sums of money in permanent structures and excavations, and a more or less extended actual occupation and possession of particular parcels of land, it became necessary to adopt some rule and standard by which the conflicting rights of such miners to these pos- sessions might be regulated and determined. This was done by a general provision of law, that these conflicting claims should be adjudicated by the rules and customs which might be established by bodies of miners working in the same vicinity in which they arose.^ A statute of 1852 accordingly gave jjer- mission to persons to dig and work mines upon public lands, even though already occupied for grazing and agricultural j)ur- poses ; although, as against all persons but the true owner, such occupation would otherwise give a right of continued possession, upon the principle that prior in tempore, potior in jure? This right to work the mines carried with it a right to use the streams of water which were accessible for the pur- pose, and to that end to dam or divert them. But one miner might not divert a stream which had previously been occupied by another, nor one which had been applied to the working of an existing mill;^ nor had a miner a right, in prosecuting his operations, to disturb the occupation of land by a hotel-keeper actually settled thereon.* The questions, therefore, that have arisen in respect to mines upon public lands, have chiefly been between miners themselves, or between miners and the oc- cupants of lands for agricultural purposes. And in determin- ing the rules to be applied in such cases, the courts have felt bound to take notice of the political and social condition of the country. They accordingly held that the interest of the pos- sessor of a mining claim was property, and was subject to be 1 Hicks V. Bell, 3 Cal. 219, 227 ; Table Mt. Tunnel Co. v. Stranalian, 20 Cal. 198, 208. 2 Stoakes v. Barrett, 5 Cal. 39 ; Clark v. Duval, 15 Cal. 88 ; McClintock v. Br)'- den, 5 Cal. 100, 101 ; Rogers v. Soggs, 22 Cal. 444. ^ Irvviu V. Phillips, 5 Cal. 146, 147 ; Sims v. Smith, 7 Cal. 148 ; Tartar v. Spring Creek, etc. Co., 5 Cal. 398 ; Ortman v. Dixon, 13 Cal. 33 ; McDonald v. Bear River, etc. Mining Co., 13 Cal. 220. 4 Fitzgerald v. Urton, 5 Cal. 308. 360 INCORPOREAL HEREDITAMENTS. seized and sold on execution ; ^ that though such miner enters upon the public land, and works the mine within it by permis- sion only of the government, so long as this permission is un- revoked he may have the same remedy against a stranger for disturbing his possession as if he were the true owner of the premises, and that he has a good vested title to the same until divested by the superior title of the true owner.^ It is accord- ingly held that he may sell or hypothecate his claim, and that he holds the same subject to taxation as property.^ And that this property in the mine has all the qualities and incidents of a freehold estate, with the exception, perhaps, of the effect of abandoning the same : * ejectment would accordingly lie to re- cover the same, and, like other real actions, would be local in its character.^ And it requires a deed in order to convey it." As a general rule, the public mineral lands of the State arc open to all persons who in good faith enter upon them for mining purposes^ But to justify such an entry and claim, the claimant must show, 1, that the land is public; 2, that it contains minerals ; and 3, that he entered hona fide for the purpose of mining them ; and if he can show this, he can, after having entered, hold against all the world but the gov- ernment to whom the land belongs.^ The title by which min- ing claims are held is that of possession. But this is regu- lated and defined by usage and local and conventional rules, and must be in accordance with those rules.^ And when the miners of a neighborhood have met and agreed upon a set of rules upon the subject, the courts do not inquire into the forms of holding such meeting, but adopt these as the law of that vicinity, provided they are not in conflict with the general 1 McKeoii V. Bisbee, 9 Cal. 137. 2 Merced Mining Co. v. Fremont, 7 Cal. 317, 326. 3 State V. Moore, 12 Cal. 56, 71. 4 Merritt v. Judd, 14 Cal. 59, 64. 6 Watts V. White, 13 Cal. 321. 6 McCan-on v. O'Connell, 7 Cal. 152. But by statute of 1860, no seal is re- quired to pass title to a mining right, but a writing is. St. John v. Kidd, 26 Cal. 263 ; Patterson v. Key.stone Min. Co., 30 Cal. 360. T Smith V. Doe, 15 Cal. 100, 106 ; Gillan v. Hutchioson, 16 Cal. 156. 8 Lentz V. Victor, 17 Cal. 274. 9 Attwood V. Fricot, 17 Cal. 43 ; McGarrity v. Byington, 12 Cal. 426 ; Table Mt. Tunnel Co. v. Stranahan, 20 Cal. 208. EASEMENTS. 361 laws of the State. ^ Thus these rules, among other things, may fix the quantity of ground which any one miner may claim under his location for mining purposes, though they can- not limit the number of claims which any one may acquire and hold by purchase? And if he takes up a larger quantity than that fixed by the rules, though he cannot hold it against another wishing to locate the same for mining purposes, his possession will be good as to all others.^ So they may fix the mode of making a location of a mining right, which is gener- ally done by posting upon the premises a notice of the requisite form ; and the right of one miner, it seems, may be lost and acquired by another, if such notice is taken down by the first occupant and replaced by the second, if he take actual pos- session accordingly. But where one took up a claim for him- self and another in their joint names, and posted notice accordingly, he could not, by taking down this notice and post- ing notices in the names of others, deprive his original cu- tenant of his property in the mining right. Tlie title to the land in the mean time, however, remains in the public un- changed.* Under the Mexican law, a conveyance of land by the government did not carry the precious metals within it, unless expressly granted ; whereas, by the law of California, such a conveyance, whether by the State or the United States, to private owners, carries the minerals, unless the same are expressly reserved in the grant.^ By the English common law, mines of gold and silver belonged to the crown, as an incident to the royal prerogative.^ In the grant of the English colonies in New England, the crown reserved one fifth of the precious metals ; and mines were leased by the colonial gov- ernment to such as discovered them, subject to this reserva- tion." In New York, these metals belong to the people as successors of the sovereignty.^ * * Note. — For an exhaustive exposition of the California mining laws, see " Legal Titles to Mining Claims and Water Rights in California," by G. Yale. 1 Gore V. McBrayer, 18 Gal. 588 ; English v. Johnson, 17 Gal. 118. 2 Prosser v. Parks, 18 Cal. 47. 3 English v. Johnson, 17 Gal. 118. 4 Gore V. McBrayer, 18 Cal. 588 ; Table Mt. Tunnel Co. v. Stranahan, 20 Cal. 207 ; Johnson v. Parks, 10 Cal. 446. 6 Moore v. Smaw, 17 Cal. 199. « Co. Lit. 4 a ; Piowd. 313. T 3 Dane, Abr. 137. 8 Willard, Real Estate, 50. See Wms. Real Prop. 14, note. 362 USES PHIOR TO THE STATUTE OF USES. CHAPTER LV. USES PRIOR TO THE STATUTE OF USES. § 1320. Division of estates into legal and equitable. 1321. Acts of mortmain. 1322. Fidei-commissum. 1323. Uses modelled upon the fidei-commissum. 1324. Nature of use requires two parties. 1325. Definition of use. 1326. Remedj' by subpoena contrived. 1327. Cestui que iise not recognized by law. 1328. What might be conveyed to uses. 1329. Who might be feoffees to uses. 1330. Equity rules govern property in uses. 1331. How created. 1332. Resulting uses. 1333. Express use sustained without consideration. 1334. No resulting use if consideration paid. 1335. What declarations of use enforced. 1336. Rules of law applied to uses. 1337. Uses devisable. 1338. Uses were alienable. 1339. Use, how severed from legal estate. 1340. Various limitations of uses. 1341. Rules as to legal estates unaffected by uses. 1342. Peculiarities in conveyances to uses. 1343. Uses had uo incidents of tenure. 1344. How uses may be lost. 1345. Privity and confidence explained. § 1320. Division of Estates into legal and equitable. — The interests in real property next to be considered are not only of an incorporeal character, but are, from their nature, to be traced to a different source from any of those which have thus far been treated of, except what may have been embraced under mortgages. "With this single exception, the estates which have been examined had their origin and derived their qualities and incidents from the common law; whereas that class which is now to be treated of was derived from the rules and principles which prevail in courts of equity. And this USES PRIOR TO THE STATUTE OF USES. 363 diversity of origin gave rise to the terms "legal " and "equi- table," by which the two classes of estates are distinguished. Under the latter are embraced uses. § 1321. Acts of Mortmain. — Uscs lie at the foundation of the whole system of trusts, enter essentially into the forms and effect of modern conveyancing, are constantly applied in framing and carrying out family settlements ; and though no longer existing as a distinct species of property, they are made to play too important a part in the law of real property as a system to be passed over without a somewhat extended examination. The common law, in its feudal elements, had little reference to trade or commerce. The relation of lord and vassal recognized no ownership in land beyond an occu- pancy and possession by some acknowledged proprietor, who was to perform the requisite feudal services belonging to the same; and it was by slow degrees only that land became alien- able at all. When, therefore, commerce began to develop itself, and to stimulate the awakening spirit of the English people, ingenuity was quickened to devise some means by which real estate should receive the quality of convertibility in some more flexible form than that which had hitherto been known to the feudal law. This was aided by the ingenuity of English ecclesiastics in their attempts to evade the laws against mortmain, which the barons and other landed nobility had procured to be enacted to counteract the grasping cupid- ity of the Cfiurch at that day. In a superstitious age, it had become customary to transfer lands to ecclesiastical establish- ments for religious uses, till attempts were made to prevent this, first by the 36th chapter of Magna Charta, in 1217, and afterwards by the statute 7 Edw. I., Be Religiosis, in 1279, prohibiting the conveyance of lands in mortmain, under the penalty of forfeiting the same to the crown or the chief lord of the fee, under whom the lands had originally been held. § 1322. Fidei-commissum. — The mode in which it was at- tempted to evade these laws was this : There had from an early period been a high officer in the kingdom with judicial powers and functions, under the name of Chancellor,^ — an office which was early filled by an ecclesiastic. As a judicial 1 1 Camp. Lives of Chancellor.^, 30. 3G4 USES PRIOR TO THE STATUTE OP USES. ofiicer, he drew many of his rules and notions of chancery law from that of Rome. Prior to the time of Augustus, the Romans had, hy a variety of independent laws, excluded many classes of persons from taking property as lieirs, which term included as well those who took by devise as by descent. Among these, for instance, women were excluded by the Voconian law.^ Hence it became customary, in order to evade these laws, for persons wishing to constitute as their heirs others who could not take property by direct appoint- ment, to give the same to some one qualified to take as heir, with a request that he would restore the inheritance, or some principal part of it, to the one who was the real object of the donor's bounty. ^ There was not, however, until the time of Augustus, any means of enforcing an execution of this con- fidence. It depended entirely upon the good faith of the person named as the heir.^ During his reign, the consuls were directed to compel a performance in such cases; and afterwards a praetor was created, to whom jurisdiction over questions of this character was specially assigned.^ Where property was given in this way it was called a Jidei-commissuin. § 1323. Uses modelled upon the Fidei-commissum. — What had been so common under the Roman law served as a ready hint to clerical chancellors. And although there may be some question whether they actually introduced the doctrine of uses into the English from the civil law, they were the first to su[)ply a remedy by which to enforce them, and thus give form and efficiency to the system. ° The clergy were thereby furnished with a ready means by which to evade the statutes of mortmain, by simply having lands conveyed in fee-simple to some one in whom the Church might confide, upon the faith that he should permit the ecclesiastical body intended to be benefited to enjoy the profits of the estate.^ But though an attempt was made by the statute of 15 Rich. II. c. 5, to counteract this scheme, by requiring lands held 1 1 Brown, Civil Law, 304 ; Tlinipp, Hist. Tracts, 220. 2 1 Spence, Eq. Jur. 436. 3 Bac. Law Tracts, 515. * Inst. 2, 23, 12 ; 1 Spence, Eq. Jur. 436 ; Bac. Law Tracts, 315. 6 1 Report, Eng. Com. Real Est. 8 ; Bac. Law Tracts, 318, 324. 6 1 Spence, Eq. Jur. 440 ; 2 Bl. Com. 328. USES PRIOR TO THE STATUTE OF USES. 365 "to the use of religious people or other spiritual persons," to be amortised by license of the king and lords, or to be sold to some other use, and extending to guilds and fraternities the prohibition against holding lands to the use of other per- sons, the mischiefs of evading the rules of the common law in respect to the titles to lands continued to be felt. By means of these uses, which were ordinarily of a secret nature, it became customary also for laymen to put their estates beyond the danger of forfeiture by any act of which they might be guilty, as well as beyond the reach of their creditors.^ This was the case to a remarkable extent during the civil wars be- tween the Houses of York and Lancaster, where the triumph of either faction was followed by attainder and confiscation of the estates of those who had taken part against them.^ § 1324. Nature of Use requires Two Parties. — There must be at least«two persons and two distinct interests in respect to lands in order to create a use. The original feudal notion remained of seisin and possession in some one who held these as the only owner known to or recognized by the law. So far as he was bound by any trust or confidence to permit this holding to be for the benefit of a third person, he was amen- able only to the jurisdiction of the chancellor.. The one who thus held the land was called o. feoffee to tise, and sometimes a trustee; while he for whose benefit the land was thus held was called a cestui que use.^ § 1325. Definition of Use. — A use is the right in one per- son, called a cestui que use, to take the profits of land of which another has the legal title and possession, together with the duty of defending the same, and of making estates thereof according to the direction of such cestui que use.^ A use was not something issuing out of land like rents, nor annexed thereto like rights of common or conditions, but was col- lateral to the possession of the feoffee, and of those claiming 1 Sand. Uses, 17 ; 1 Spence, Yai. Jur. 440, 443 ; Burgess v. Wheate, 1 W. Black. 135. 2 1 Spence, Eq. Jur. 441. 3 Co. Lit. 271 b, Butler's note, 231, § 2. 4 Tud. Lead. Cas. 252 ; Chudleigli's case, 1 Rep. 121 ; 2 Bl. Com. 330 ; Bac. Law Tracts, 307. Bacon says : " The wsc is but the equity and honesty to hold the land in conscientia boni viri." Law Tracts, 150. 366 USES PRIOR TO THE STATUTE OF USES. that possession under liim. Between the feoffee and the cestui que use there was a confidence touching the land, annexed in privity to the estate and to the person.^ Lord Mansfield speaks of a use as a chose in action.^ But in respect to legal ownership, it was neither jus in re, — an estate in a thing; nor jus ad rem, — a right of demand in law for the thing. § 1326. Remedy by Subpcsna contrived. — The only resort which a cestui que use at first had for enforcing the use was the good faith of the trustee.^ But in the reign of Richard IT. (about 1380), John De Waltham, Bishop of Salis- bury, who was Master of the Rolls, and at one time Keeper of the Great Seal, but never Chancellor, as he has sometimes been called, invented the "writ of subpcena," returnable into chancery, by means of which a cestui que use might call the feoffee to use to account under oath in a court of chancery.^ And the mode by which the rights of the cestui que use were enforced was by imprisoning the delinquent party until he complied with the order of the chancellor." At first, this process in equity ran only against the trustee himself, but not against his heir or alienee. And this continued to be the case till the time of Henry VI., when it was extended to heirs, and afterwards to alienees who took with notice of the trust. ^ To all other persons the feoffee was as much the real owner of the fee as if he did not hold it to the use of another." § 1327. Cestui que Use not recognized by Law. — The courts of common law did not recognize the rights of a cestui que use to either the land or its profits, nor was there any form of action at law by which these rights could be enforced;^ and 1 Cornish, Uses, 17; Chudleigh's case, 1 Rep. 121; Co. Lit. 171 b, Butler's note, 231, § 2 ; Tud. Lead. Cas. 253 ; 1 Spence, Eq. Jur. 448, note. 2 Burgess v. Wheate, 1 W. Bl. 158 ; Bac. Law Tracts, 303; 1 Spence, Eq. Jur. 442 ; Cornish, Uses, 17. 8 Tud. Lead. Cas. 252. * Cornish, Uses, 12 ; 1 Spence, Eq. Jur. 338, note. Sir J. Mackintosh ascribes this writ of subpcena to a desire to reach justice in the ordinary courts, because the turbulent barons had bidden defiance to the ordinary jurisdiction and processes of law. 16 Law Rev. 325. 6 Chudleigh's case, 1 Rep. 121 ; Tud. Lead. Cas. 253. 6 Bac. Law Tracts, 318 ; 1 Spence, Eq. Jur. 445 ; 2 Bl. Com. 329 ; Burgess v. Wheate, 1 W. Bl. 156. ^ Co. Lit. 271 b, Butler's note, 231, § 2 ; 1 Spence, Eq. Jur. 445. * 1 Spence, Eq. Jur. 442. USES PRIOR TO THE STATUTE OF USES. 367 it is stated by Bacon that no statute was ever made for the benefit of cestui que use, but only for the benefit of strangers against cestuis que use and their feoffees.^ The consequence was, that if a disseisor ousted the feoffee to use, or his tenant, equity could furnish no relief, and it became the duty of the feoffee, in order to protect the interest of his cestui que use, to resort to some proper form of action at law for the recovery of the estate. 2 § 1328. What might be conveyed to Uses. — All lands and hereditaments, incorporeal as well as corporeal, in posses- sion, reversion, or remainder, might be conveyed by way of use. It was necessary, however, that the property conveyed should be in esse at the time, and capable of having what answered to the seisin thereof, given instantly and simulta- neously with the creation of the use.^ Therefore, though a man might convey lands to another, and his heirs to the use of a third person for years, he could not so convey them if he had only a leasehold interest therein for years, since he had no seisin to part with upon which the use might depend.* So, for the same reason, no one could raise a use in favor of another by a covenant to stand seised to use of land of which he has no title or possession.^ Nor were ways, commons, annuities, and the like, the subjects of a use.*^ § 1329. Who might be Feoffees to Uses. — Any and all persons who could be feoffees of land at common law might be feoffees to use, and were competent to be seised accord- ingly, and could be compelled by chancery to execute the use. This included infants and femes covert. But corporations could not be seised to use, one reason being that chancery was supposed to have no means of compelling an execution of the use. 7 But it is now held generally in the United States that corporations may be seised to uses, provided the same are not alien to the purposes for which they were created.^ 1 Bac. Law Tracts, 319. 2 1 Spence, Rq. Jur, 445. 8 Ci-abl., Real Prop. § 1610. * Crabb, Real Prop. § 1612 ; 2 Bl. Com. 331. 6 Yelverton v. Yelverton, Cro. Eliz. 401. 6 1 Cruise, Dig. 340. 7 1 Cruise, Dig. 340 ; Crabb, Real Prop. § 1607. 8 Ang. & Ames, Corp. c. v. §§ 6-8. 368 USES PRIOR TO THE STATUTE OF USES. All persons, including corporations, who could take estates by conveyance at common law, could take as cestui^ que use. But this did not extend to aliens.^ § 1330. Equity Rules govern Property in Uses. — Without interfering with the legal estate which the feoffee had derived by the action of the common law, chancery, in the exercise of a power akin to legislation, compelled him to exercise his legal rights in subordination to the protection and enjoyment of the equitable interest in another, which was a creation of its own, and one not known to the common law.^ From uses being of an impalpable nature, which could neither be pos- sessed nor delivered, in the sense known to the common law, chancery, in treating of them, had no regard to the doctrine of seisin, livery, feoffment, tenure, and its incidents, and the like. 3 § 1331. How created. — Nor was any act of notoriety re- quired to give effect to a use, since the purposes of secrecy, for which uses were originally adopted, as well as their nature, assumed that no such notoriety was contemplated. Nor was any prescribed form of raising or declaring a use required, an oral declaration even being often sufficient for this purpose, since, at common law, no deed was necessary in order to make a good feoffment, when accompanied by a delivery of possession. But where, as was the case at com- mon law in respect to rents and other incorporeal heredita- ments, a deed was necessary in order to create a legal estate therein, it required a deed to create or raise a use in the same. But deeds declaring or assigning uses might always be kept secret between the parties in interest. Any instru- ment declaring the intention of the parties was allowed to be binding in equity, the intention being the leading principle in the rules governing this species of property.* § 1332. Resulting Uses. — Not only was the declared inten- tion of the parties thus effectually regarded in creating a use, but in numerous cases equity raised uses where no intention 1 Crabb, Real Prop. § 1609 ; Tud. Lead. Cas. 254. 2 1 Speiice, Eq. Jur. 435 ; 1 Cruise, Dig. 341. 3 2 BI. Com. 331 ; 1 Speiue, Eq. Jar. 451; 1 Cruise, Dig. 341. < 2 BI. Com. 331 ; 1 Speiice, Eq. Jur. 449; Crabb, Real Pmp. § 1614. USES PRIOR TO THE STATUTE OF USES. 369 to do SO had been expressed. Especially was this the case in respect to what are called resulting) uses. The difference between common law and equity in this respect was this : by the former, if one made a feoffment of his land without fraud, a sufficient consideration was presumed ; and if the grant was by deed, it was all the evidence of a consideration that was required;^ but equity presumed that no man intended to part with a beneficial interest in his estate without some con- sideration. And_if he made a feoffment without considera- tion, and without declaring to whose use the land should be held, equity presumed he intended to reserve the benefit thereof to himself, and accordingly raised a use in his own favor. This was called a resulting use, as it resulted back to the feoffor himself.^ Indeed, so common did uses become, that a conveyance of the legal estate ceased to imply an inten- tion that the feoffee should enjoy the beneficial interests therein. And if no intent to the contrary was expressed, or no consideration was proved or implied, the use always resulted to the feoffor. And if a part only of the use was expressed, the balance thereof remained in, or resulted to, the feoffor.^ So strong was the disposition of chancery to have the use of lands follow the equitable ownerships, irrespective of the form in which the legal title to the same stood, that if a person purchased and paid for an estate, and took the title thereof to a third person, a use thereupon resulted in favor of the purchaser, with this exception, that if a father, in the name of a child, purchased an estate, it was presumed to be to the use of the child in the way of an advancement.* And it is said that the two cases of resulting uses above mentioned are the only ones knowni to the law.^ § 1333. Express Use sustained without Consideration- — If, however, there was a conveyance of land by feoffment or in 1 Crabb, Real Prop. § 1614; 1 Spence, Etj. Jur. 451; Lloyd v. Spillet, 2 Atk. 150 ; Bac. Law Tracts, 310. 2 Perkins, § 553 ; 2 Bl. Com. 331. 3 2 Rolle, Abr. 781, F ; Co. Lit. 23 a ; Lloyd v. Spillet, 2 Atk. 150 ; Bac. Law- Tracts. 317 ; 1 Spence, Ecj. Jur. 451. * In New York the same rule applies in favor of a wife, when a husband pur- chases in her name. Welton v. Divine, 20 Barb. 9. 6 1 Spence, Eq. Jur. 452 ; Lloyd v. Spillet, 2 Atk. 150. VOL. II. — 24 ^ \ 370 USES PRIOR TO THE STATUTE OF USES. a form which operated a transmutation of the possession from the grantor to the grantee, with a declaration of a use in favor of some third person, the use would be sustained, though no consideration therefor were stated or proved.^ § 1334. No Resulting Use if Consideration paid. — If a feof- fee paid a valuable consideration, however small, for a con- veyance, it raised a use in his favor. Nor was it necessary that the consideration should be stated in the deed ; for whether any and what consideration was paid might be proved, whether expressed therein or not, unless it was re- pugnant to that which was expressed.^ But no use could be averred between the parties contrary to that which was expressed upon the face of the instrument, or was implied by law.^ Nor where a consideration was expressed could the grantor negative the fact, in order to impeach the deed, in the absence of fraud.'* Considerations were then, as now, divided into two classes, — good and valuable. A good con- sideration is one raised by the relationship of marriage or of blood, within the degrees of nephew or cousin. A valuable consideration is either money or something that is money's worth. The latter will support a use in favor of a stranger: the former will support one in favor of such relations as are above indicated, if it is declared in a sufficient and proper form.^ § 1335. What Declarations of Use enforced. — But as equity would not enforce a mere gratuity, if one having the legal interest, without consideration and without a transmutation of the possession of the land, made a declaration of a use in favor of another, equity would not enforce it. But if there 1 Lloyd V. Spillet, 2 Atk. 150 ; 2 Bl. Com. 329 ; 1 Spence, Eq. Jur. 449 ; Crabb, Keal Prop. § 1614 ; Calthrop's case, F. Moore, 102. 2 Crabb, Real Prop. § 1614 ; 2 Bl. Com. 329 ; Tad. Lead. Cas. 255 ; 1 Spence, Eq. Jur. 451. See post, § 1387 ; Wilkinson v. Scott, 17 Mass. 249, 257; Griswold V. Messenger, 6 Pick. 517; Morse v. Shattuck, 4 N. H. 229; Pritchard v. Brown, id. 397 ; Shephard v. Little, 14 Johns. 210 ; Maigley v. Hauer, 7 Johns. 341 ; Boyd V. M'Lean, 1 Johns. Ch. 582. 3 1 Spence, Eq. Jur. 451; Lewis v. Lewis, 2 Rep. in Chanc. 77; Lewin, Trusts, 27. * 3 Wood, Conv. 285 ; 1 Greenl. Ev. § 26, note, for the American law ; Wilt V. Franklin, 1 Binn. 518. 6 1 Spence, Eq. Jur. 450. USES PRIOR TO THE STATUTE OF USES. 371 was a consideration, a declaration of a use would be enforced, though it was made by parol, even where there was no trans- mutation of possession on the part of the one declaring the use.^ It was upon this principle, as will be shown hereafter, that bargains and sales, and covenants to stand seised, as modes of conveying lands, depended for their origin and validity. And it may also be remarked, in passing, that ordinary deeds in modern use avoid the effect of raising a resulting use in favor of the grantor, first, by inserting therein an acknowledgment of a consideration received by the grantor ; and, second, by declaring thereby the uses of the estate granted in favor of the grantee, and, if in fee, of his heirs and assigns. § 1336. Rules of Law applied to Uses. — As uses were alto- gether within the cognizance of chancery, its courts were at liberty to accept or reject the rules of the common law in respect to an entity as abstract as that of uses. In fact, they applied to them the rules of the common law in many re- spects, and in others they adopted rules more favorable to their easy and unembarrassed alienation. ^ Thus they were descendible like real estate, agreeably to the rules of the common law.^ But words of limitation to heirs were not necessary in creating estates of inheritance in uses. One might have as absolute property in a use without words of inheritance as he could have had in a chattel ; and, at his death, the same might go to his heirs like real estate.* § 1337. Uses devisable. — Although lands were devisable by the Saxon laws, they ceased to be so under the feudal sys- tem introduced by William. Nor were they again made so by law until the statute of wills, 32 Hen. VIII.^ But, in chan- cery, uses were always devisable ; and it was in that way that the disability at common law in this respect was obviated. The will of a cestui que use was deemed by chancery to be a declaration of the use, and the feoffee to use was accordingly 1 1 Spence, Eq. Jur. 450. 2 Madd. Ch. 251. 8 1 Spence, Eq. Jur. 454 ; 2 Bl. Com. 329. * Tud. Lead. Cas. 253 ; 1 Spence, Eq. Jur. 452 ; 1 Cruise, Dig. 343 ; Cornish, Uses, 19. 6 6 Cruise, Dig. 3, 4. 372 USES PRIOR TO THE STATUTE OF USES. compelled to convey the land to the use as thus declared.^ Thus, if one seised of lands enfeoffed A B of them to the use of the feoffor, the latter might, by his last will, declare this use in favor of any person whom he wished to make his devisee, and equity came in and gave effect to the will accord- ingly.2 Or the cestui que use might, by his will, devise that the feoit'ee should convey the estate to the person named as the object of the testator's bounty, and chancery would en- force the direction. So one might make a feoffment of his lands to the use of his last will and testament, or of such person as he should appoint by his last will, and the use in the mean time would, in such case, result to himself. ^ § 1338. Uses were alienable, although, in many respects, resembling choses in action, which were not assignable at common law.^ But though usually in possession of the lands, the cestui que use could not alien the legal estate in the same without being joined by his trustee, his possession being re- garded in law as a mere tenancy at will under his trustee or feoffee to use.^ No deed was required in aliening a use, nor any instrument in writing, but merely that there should be a direction from the cestui que use to his trustee, since there could be no such thing as a livery of seisin.^ Or this might be done by any species of deed or writing, and the trustee was bound to obey immediately any direction he should re- ceive from his cestui que use.'' § 1339. Use, how severed from Legal Estate. — Though the most usual mode of separating the use from the legal estate was by feoffment to use, there were methods of doing this by conveying the use, separate and distinct from the legal estate, by one who had them united in himself. Thus, where 1 2 Bl. Cora. 329 ; Co. Lit. 271 b, Butler's note, 231. 2 2 Bl. Com. 329. 3 Crabb, Real Prop. § 1616 ; Co. Lit. 112, 133 ; Co. Lit. 271 h, Butler's note, 231; Sir Edw. Clare's case, 6 Rep. 17 6; Co. Lit. 112 a, n. 142; Tud. Lead. Cas. 268. * Cornish, Uses, 19. 6 2 Bl. Com. 331. 6 1 Spence, Eq. Jur. 454 ; Crabb, Real Prop. § 1614. ^ 1 Cruise, Dig. 342. By the seventh section of the statute of frauds, 29 Car. II. c. 3, all declarations or creations of trusts or confidence were, for the first time, required to be proved by some writing. USES PRIOR TO THE STA.TUTE OF USES. 373 the owner of land contracted to sell or lease it for a valuable consideration paid him, cliancery regarded him as a trustee, holding the estate to the use of the bargainee in fee or for years, according to the terms of the agreement, though no deed had passed, and no words of inheritance were made use of in making the bargain. And the same effect was given to an agreement to settle an estate for the benefit of a blood rela- tion, without any valuable consideration being paid; chancery treating the holder of the land, in such case, as a trustee of the person on whom he agreed to settle it, without requiring any formal conveyance to be made. By holding the person to whom the legal estate belonged, in the above cases, to be a trustee of the party to be benefited, chancery was able to carry out the agreement, though the common law did not regard it as a binding contract, and no trust had been formally de- clared. The use became separated from the legal estate, and became the subject of transfer by itself, as has heretofore been stated. ^ Nor did chancery stop there, but held the per- son in whom was the legal estate trustee of whoever was entitled to it, in all cases where such estate had been acquired by fraud or accident. ^ § 1340. Various Limitations of Uses. — A use, when oncc raised, might be granted or devised in fee, in tail, for life or for years. ^ Uses might also be raised or created in favor of the person intended to have the benefit thereof, in various modes unknown to and at variance with the common law ; as, for instance, in favor of one not a party to the deed conveying the estate.* So a fee might be limited to one, which, upon the happening of some event, should shift over to another in fee.^ Or the use might be limited to spring up and take effect as a freehold estate in futuro.^ This was the origin of ^ 1 Spence, Eq. Jur. 452, 453. It is hardly necessary to add, that these modes of transferring a use gave rise to the conveyances under the statute by bargain and sale, and covenant to stand seised, and the like. 2 1 Spence, Eq. Jur. 453. ^ 1 Spence, Eq. Jur. 455. * Bac. Law Tracts, 310, 311 ; 1 Cruise, Dig. 343 ; 1 Spence, Eq. Jur. 455 ; Cornish, Uses, 19. * Gilbert, Uses, Sugd. ed. 153, 154 ; Cornish, Uses, 19. 6 Gilbert, Uses, Sugd. ed. 161. 374 USES PRIOR TO THE STATUTE OP USES. shifting and springing uses, as at present applied. So there might be a limitation of a contingent use by the way of remainder in fee to a person not yet born or ascertained, without creating at the same time a previous particular estate of freehold to sustain it, which, as will be shown, was neces- sary in such limitations at common law.^ Or it might be so limited that the grantor might reserve to himself or a stranger a right, at a future time, to revoke the use which he then declared, and to limit or declare new uses in favor of other persons,^ which became the origin of the present doc- trine of powers. And, in general terms, the use might be limited as a freehold to commence in futuro, which could not be done at common law.^ § 1341. Rules as to Legal Estates unaffected by Uses. — But it should be observed, that all these things might have been done before the statute, without doing violence to any rule of the common law as to the seisin of a freehold in the legal estate, since the limitation of uses was but a direction in equity to the feoffee or trustee who continued to hold the seisin and fulfil the tenure of the legal estate; and that was all that was heeded by the common law.* § 1342. Peculiarities in Conveyances to Uses. — Among the peculiarities in conveyances of uses, as compared with those of estates at common law, was this, that a husband might create a use in favor of his wife, out of his own estate, by enfeoffing another to her use, or by a covenant with another to stand seised to her use.^ So uses might be raised in favor of several persons, to come into the enjoyment thereof at successive periods, and yet all be joint tenants thereof, as soon as the use should take effect.^ § 1343. Uses had no Incidents of Tenure. — Such of the incidents of common-law estates as grew out of the doctrine 1 Shelley's case, 1 Rep. 101 ; Gilbert, Uses, Sugd. ed. 164 ; Cornish, Uses, 19. But a different rule prevails under the statute. Gilbert, Uses, Sugd. ed. 165; Adams v. Savage, 2 Salk. 679 ; Chudleigh's case, 1 Rep. 135 ; Fearne, Cont. Rem. 284; post, § 1373. 2 1 Spence, 455 ; Gilbert, Uses, Sugd. ed. 165; Tud. Lead. Gas. 254. 3 1 Cruise, Dig. 343- * 1 Spence, Eq. Jur. 455. 5 1 Spence, Eq. Jur. 456 ; Co. Lit. 112 ; Thatcher v. Omans, 3 Pick. 521. ^ 1 Speuce, Eq. Jur. 456. USES PRIOR TO THE STATUTE OF USES. 375 of feudal seisin and tenure could not obviously have belonged to uses, since seisin could not be predicated of a mere ideal abstraction, impalpable to the senses, and known only to equity. A cestui que use could not, accordingly, be disseised, or dispossessed of his use by another. So neither curtesy nor dower could be had in a use. This led to the introduction of jointures, as has already been stated.^ Nor were uses sub- ject to the burdens of tenure, nor to be levied upon for the debt of the cestui que use. Nor could purchasers, either from feoffees or cestuis que use^ be assured of a title to what they purchased. 2 Another incident of uses was that, at common law, like conditions or mere rights of action, they were not forfeited to the king upon attainder of treason, notwithstand- ing such attainder extended to lands and tenements. This led to the statute of 33 Hen. VIII. c. 20, § 2, whereby uses, rights, conditions, etc., are declared forfeited upon attainder for treason,^ § 1344. How Uses may be lost. — A use depended upon a^ privity of estate between the feoffee and cestui que use in respect to the lands out of which the use was to arise, and a privity of person also, or a confidence between these parties touching the land.^ If, then, this privity were destroyed between him who held the seisin or possession of the land and him who claimed the use, the use was defeated or sus- pended, as the case might be, until the privity was restored^ And it should be remembered, that, as to all the world but the cestui que use, the feoffee was the real owner of the fee to all intents, so that his Avife was entitled to dower, his lord to his escheat, and the like: if, therefore, the feoffee were disseised or an abator entered, or a tenant in dower, or by curtesy, or elegit, or a purchaser without notice and for a valuable consideration, became possessed of the land, the 1 Ante, § 494. 2 Bac. Law Tracts, 330 ; 1 Spence, Eq. Jur. 456, 460 ; Gilbert, Uses, Siigd. ed. 137 ; 2 Bl. Com. 331 ; Cornish, Uses. 20 ; Perkins, § 457; Crabb, Real Prop. § 1618. 8 Jackson d. Gratz v. Catlin, 2 Johns. 261 ; Cudleigh's case, 1 Rep. 121 ; Tad. Lead. Cas. 253. * Gilb. Uses, Sngd. ed. 376 ; Lewin, Trusts, 2 ; Tud. Lead, Cas. 254 ; Co. Lit. 2726, Butler's note, 231, §2. 376 USES PRIOR TO THE STATUTE OF USES. privity of the feoffee with the cestui que use as to such tenant was destroyed, and the use was lost. But if the tenant came in under the feoffee, as by descent or by purchase, with a knowledge of the use, or without having paid a consideration, there would still be such a privity and confidence between him and the cestui que use that the use would be saved, and chancery would compel its execution. ^ § 1345. Privity and Confidence explained. — The language of Baron Gilbert, in his treatise on uses above cited, con- tains perhaps as clear an explanation of this subject as can readily be found. "It may be asked what this privity of estate is that is requisite to the standing seised to a use ? And it is where a person comes into the same estate as the feoffee to uses had in and by contract with him ; for a dis- seisor comes into the same estate, but not by contract and agreement, and therefore he is in the j^ost, i. e. claims not by or from the feoffee. And why a privity of estate is requisite to the standing seised to a use, in general, is because he who comes not in privity of estate claims not the estate by and from the feoffee who stood seised to the use, and consequently claims not the estate, as it was subject to the uses, but one above that, free and clear." — "Why should a man stand seised to a use when he claims not the estate by agreement with him that did stand seised, or has not the estate that was charged to the use ? For confidence in the person is as well requisite as privity of estate. " — " Confidence in the person is either express or implied; and if that fails, the use is gone; as if a feoffee to a use for a good consideration doth enfeoff one who hath not notice of the use, the use is gone, for here is no trust in him." — "But if he had notice, a trust might well be said to be reposed in him, because he took the land knowingly with the uses. " The reader will hereafter remark the similarity of the old law of uses in this respect and the modern law of trusts. Attempts were made from time to time, by legislation in England, to obviate some of the mis- ^ 1 Spence, Eq. Jur. 456 ; Hopkins v. Hopkins, 1 Atk. 581 ; Cholmondeley v. Clinton, 2 Meriv. 358, 360 ; Crabb, Real Prop. § 1606 ; Cornish, Uses, 17; Lewin, Trusts, 3, 4 ; Burgess v. Wheate, 1 W. Bl. 156 ; Cudleigh's case, 1 Rep. 120, 122 6 ; Co. Lit. 271 b, Butler's note, 231, § 2 ; Gilb. Uses, Sugd. ed. 377, 378. USES PRIOR TO THE STATUTE OF USES. 377 chiefs which were supposed to result from the multiplication of secret trusts, subject to which the lands of the kingdom were held. Among the acts passed for that purpose were the statutes 2 Rich. TI. c. 23, 15 Rich. II. c. 5, 1 Rich. III. c. 1, and 50 Edw. III., to which the reader may refer. But these all gave place to the famous statute of 27 Hen. VIIL, called "The Statute of Uses." 378 USES AFTER THE STATUTE OF USES. CHAPTER LVI. USES AFTER THE STATUTE OF USES. § 1346. Purpose of the statute. 1347. Effects produced by the statute. 1348. Provisions of the statute. 1349. Effect of the statute upon devises. 1350. Construction of the statute. 1351. Three things must concur to give the statute effect. 1352. Who may be seised to a use. 1353. What property is within the statute. 1354. Quantity of the estate of a feoffee to uses. 1355. If the feoffee and cestui que use be the same person. 1356. Cestui que use in esse essential. 1357. Who may be cestui que use. 1358. How limitations made to cestuis que xise. 1359. Terms by which uses are created. 1360. Where feoffee may take as cestui que use. 1361. Conveyances, impossible at common law, became possible under statute. 1362. Contingent remainders by way of uses. 1363. A use in esse necessary. 1364. When and how uses are executed. 1365. Seisin transferred by executing a use. 1366. Statute guards against merger as to feoffee. 1367. Union of common law with uses by the statute. 1368. Of uses to commence in faturo. 1369. Freeholds infuturo raised by uses. 1370. As to freeholds infuturo by bargain and sale. 1371. By bargain and sale, continued. 1372. Powers reserved by means of uses. 1373. Future and contingent uses. 1374. Some future uses treated as remainders. 1375. Enrolment of deeds of bargain and sale. 1376. Modes of conveying lands by means of uses. 1377. Conveyances by transmutation of possession. 1378. Without transmutation — Bargain and sale. - 1379. Covenant to stand seised. 1380. Of the considerations to support convej'ances. 1381. Covenant must not be executory. v/ 1382. Lease and release!! 1383. Lease and release in the United States. 1384. Formalities in declaring uses. 1385. Of uses resulting by implication. 1386. Examples of resulting uses. USES AFTER THE STATUTE OF USES. 379 § 1387. What consideration prevents use from resulting. 1388. Declaration of use prevents a resulting use. 1389. Uses only result to the original owner. 1390. Uses limited as they would result are void. 1391. Presumption of resulting use rebuttable. 1392. Parol evidence to rebut resulting use. 1393. No use results if one expressed. 1394. Doctrine of uses applied to devises. 1395. No resulting use for lack of consideration. 1396. If use fails it results. 1397. How uses may be destroyed or suspended. 1398. Importance of uses in conveyancing. 1399. How uses are prevented from resulting. 1400. General api)lication_of uses in conveyancing. ,1401. Where resort has been had to the doctrine of uses. § 1346/ Purpose of the Statute. — The purpose of the statute of uses is said, by some authors, to have been entirely to abolish uses.^ Another writer states it to have been to abol- ish altogether the jurisdiction of the court of chancery over landed estates ;2 while Bacon, and in this he is sustained by Mr. Sugden and others, maintains the same idea by insisting that the purpose was to turn equitable into legal estates.^ § 134'^ Effects produced by the Statute. — Whatever may have been the intention of the framers of the statute, its prac- tical effect, under the construction given to it by the courts of both law and equit}', was to produce a great revolution in the transfer and modification of landed property; and while it accomplished on the one hand the idea of turning equitable into legal estates, it instituted on the other a complete system of equitable estates, more efficient, if possible, than that which it professed to abolish.^ And, as the subject develops itself, it will be found to justify the language of Lord Bacon, that "it is the statute' which of all other hath the greatest power and operation over the heritages of the realm. "^ Mr. Williams, however, remarks that "all that was ultimately effected by the statute of uses was to import into the rules 1 1 Cruise, Dig. 349 ; Gilb. Uses, 74; Chudleigh's case, 1 Kep. 124 ; Co. Lit. 271 ; Butler's note, 231, § 3. 2 Wms. Real Prop. 133. 3 Bac. Law Tracts, 332 ; Gilb. Use.s, Sugd. ed. 139, note ; Sand. Uses, 86, 87. * Tud. Lead. Cas. 2.57 ; Co. Lit. 271 6, Butler'a note, 231, § 2 ; 1 Prest, Abst. 311. 6 Bac. Law Tracts, 324. C80 USES AFTER THE STATUTE OF USES. of law some of the then existing doctrines of the courts of equity, and to add three words, to the use, to every convey- ance. "^ And Lord Hardwicke says: "A statute made upon great consideration, introduced in a solemn and pompous manner, by a strict construction has had no other effect than to add at most three words to a conveyance. "^ Yet the lan- guage of Mr. Preston is not too strong when he says: "Within the whole scope of the learning more peculiarly belonging to the province of the conveyancer, none is more important to be known than that which concerns the doctrine of uses; for there are many things which may be done through the medium of a conveyance to uses which cannot be accomplished by a conveyance merely and simply at the common law."^ § 1348. Provisions of the Statute. — The act bears date A. D. 1535, and forms the tenth chapter of the statute 27 Hen. VIII. But it was many years before the courts had wrought out from it, by construction, the modern system of trusts and conveyances. Bacon remarks, that "the law began to be reduced to a true and sound exposition " in Chudleigh's case, 37 Eliz. (a. d, 1595).^ Lord Nottingham, who was Chancellor in 1676, is said to have done much in placing trusts upon their true foundations.^ It is easy, therefore, to understand the applicability and force of the language of Lord Bacon, who was Chancellor in 1617, where he describes it as "a law whereupon the inheritances of this realm are tossed, at this day, like a ship upon the sea, in such sort that it is hard to say which bark will sink, and which will get to the haven; that is to say, what assurances will stand good, and what will not."^ The act contains a preamble and eigh- teen sections, and is styled "An Act concerning Uses and Wills." The preamble recites, that, by common law, lands, etc., are not devisable, and ought not to be transferred but by solemn livery, matter of record, etc., without covin. Yet by subtle inventions, etc., they have been conveyed, etc., by 1 Wms. Eeal Prop. 133. 2 Hopkins v. Hopkins, 1 Atk. 591. But see Sand. Uses, 265. 8 2 Prest. Conv. 474. * Bac. Law Tracts, 300. ' 1 Spence, Eq. Jur. 494. 6 Bac. Law Tracts, 299. USES AFTER THE STATUTE OP USES. 381 assurances craftily made, and secret uses, interests, and trusts; and also by wills, sometimes by words, sometimes by writing, by reason of which heirs have been disinherited, lords have lost their wards, marriages, aids, etc. ; persons purchasing lands could not know their title; husbands lost curtesy, widows dower, the king had lost the j)rofits of at- tainder, etc., "to the utter subversion of the ancient common law of this realm." It then, "for the extirping and extin- guishment of all such subtle practised feoffments," "to the intent that the king's highness, or any other, his subjects of this realm, shall not in any wise hereafter, by any means or inventions, be deceived, damaged, or hurt by reason of such trusts, uses, or confidences," proceeds to enact, that when any persons stand seised, or shall happen to be seised, of or in any honors, castles, manors, lands, tenements, rents, ser- vices, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any other person, etc., such person shall stand and be seised of such hereditaments, to all intents and purposes in the law "of and in such like estates, as they had or shall have in use, trust, or confidence in the same; and that the estate, right, and possession of the person seised shall be deemed and adjudged to be in him or them that have such use, confidence, or trust, after such qualit?/, mannery farm, and condition as they had before in or to the use." ^§ 1349. Effect of the Statute upon Devises. — The simple remedy proposed for the long train of evils recited in the preamble was to destroy the estate of the feoffee to use, and to transfer it by the very act that created it to the cest^ii que use, as if the seisin or estate of the feoffee, together with the use, had, una flatu, passed from the feoffor to the cestui que use. But it became necessary, in order to guard against widows of cestuis que use taking dower in addition to their jointures where those had been settled upon them, as was explained in a former chapter, to insert a clause to that effect (§ 6).i As by the form of this statute, the seisin by which alone the use could be supported was taken out of the feoffee, and passed at once to the cestui que use, it ceased to be possible to devise lands in any of the forms mentioned in 1 Jnte, §§ 494, 1343 ; Bac. Law Tracts, 344. 382 USES AFTER THE STATUTE OF USES. a former section; and they, in fact, thereby became undevis- able, and remained so until the statute of wills, 32 Hen. YIIl.^ § 1350. Construction of the Statute. — It might have been supposed, that, as the statute was a remedial one, it would have received a liberal construction, with a view of carrying out the professed objects stated in the preamble ; whereas, in fact, the opposite course was adopted, and a strict construction was insisted upon. And, among other things, the judges pretended that the statute did not apply to secondary uses, or a use upon use, and by this means allowed parties at pleasure to evade the statute, till, instead of courts of equity being deprived of jurisdiction over lands, the chief control of real property was practically transferred to those very courts.^ The first thing that strikes one on examining the statute is, that it retains in full vigor the idea of a legal seisin of the estate, in the same manner as it had existed at the common law, and, at the same time, expressly recognizes the exist- ence and continuance of the very something, called a use, which it is said to have aimed to destroy. And the operation of the statute was to be effected by uniting these two entities ; fusing them, as it were, into one legal entity or estate.^ Whatever this estate was, it should be remembered, it was to be held after such quality, manner, and form and eotidition, as the owner of the use had before had in and to the use, which now drew to itself the legal seisin by force of the statute ; thus executing the use, as it was called, in him who was to have the entire estate. The consequence, as will be seen, was that it suggested and supplied the means of transferring the legal estates in lands without any such solemnity or notorious act as the common law had required.^ The doc- trine of uses, drawing to them the legal estate of the owner who created or declared them, is not limited to freeholds, but extends to terms for years, where the use draws to it the possession only, and not the seisin, but in such a manner that the "estate, title, right, and possession that was in such per- sons that were seised of lands, etc., to the use of any such 1 Bac. Law Tracts, 344. 2 1 Rep. Eng. Com. Real Prop. 8. 8 Egertoii V. Brownlow, 4 H. L. Cases, 206. 4 Bac. Law Tracts, 327. USES AFTER THE STATUTE OP USES. 383 persons, shall be adjudged to be in him or them that have such use," after such quality, manner, etc., as they had before in or to the use. And it was by carrying out this idea of creating an estate for a year by bargain and sale, whereby a use for that time was raised in favor of the bargainee, to which the statute annexed the possession, and thereby created a legal estate for that term, that the mode of conveying lands, long in use in England, by lease and release, became effect- ual ; for, in the words of Burton, the statute of uses " converts all vested uses at once into estates. "^ The English Commis- sioners on Real Property, in their report, in view of the effect above spoken of, state that the statute failed to correct the practice of having two estates, the one legal in one man, and the other equitable in another, by attempting to do too much. It made no distinction between active, passive, and construc- tive trusts, and stopped short of authorizing directly the modifications of property and its transfer, which had been effected through uses, and were required by the wants of mankind. 2 § 1351. Three Things must concur to give the Statute Effect: first, a person seised to a use ; second, a cestui que use in esse ; and third, a use in esse, either in possession, reversion, or remainder.^ § 1352. Who may be seised to a Use. — All persons may be seised to a use, including femes covert and infants, Avho might have been so seised before the statute, but none other. The words in the statute are "person" or "persons." But aliens and corporations were excluded, although a use would not be void because the feoffee to such use was an alien.* But, in the United States, the word " persons " includes bodies corporate ; and corporations may accordingly be seised to a use or trust, if the same is not foreign to the purposes of 1 1 Spence, Eq. Juris. 464, 477 ; Wms. Real Prop. 151 ; Burton's Comp. 50. - Pelham's case, 1 Rep. Eng. Com. Real Prop. 8. 3 1 Cruise, Dig. 349 ; Tud. Lead. Cas. 258 ; Crabb, Real Prop. § 1646 ; Witham v. Brooner, 63 111. 346. 4 1 Cruise, Dig. 349 ; Bac. Law Tracts, 334, 347, 348. And although, if an infant was feoffee to his own use for life, with a remainder to the use of J. S., he might, on arriving at age, disagree as to his own use, he could not, by such dissent, divest the rights of the remainder-man. Bac. Law Tracts, 348. As to the statutes affecting the rights of aliens to hold lands in the United States, see ante, § 132. 384 USES AFTER THE STATUTE OF USES, their creation.^ But a person uncertain, it is said, is not within the statute, being incapable of having a use executed through him in respect to an estate. Thus if I give land to J. S., the remainder to the heirs of J. D,, to the use of J. N. and his heirs, J. N. is not seised of the fee-simple of an estate during the life of J, S. till J. D. be dead, and then he would take a fee-simple.'^ § 1353. What Property is within the Statute. — The statute embraces every kind of real property, whether in possession, reversion, or remainder, as well incorporeal as corporeal. But it is essential that it should be an estate of which the grantor has, or is entitled to have, the seisin at the time of his grant. No use, therefore, could be raised by a covenant to stand seised of land, of which the covenantor was not at the time seised.^ And it was accordingly held that a mort- gagee could not devise his mortgage interest to uses, so as to be executed by the statute, since the debt was the principal thing, and the mortgage lien would follow the debt to whom- soever that went.'^ In other words, no one can convey a use in land of which he is not seised in possession, or to which he is not entitled in remainder or reversion, at the time of making the conveyance. And the reason is quite obvious. There must be a seisin in esse to pass simultaneously with the use, which the statute can take, and unite with the use, whenever a conveyance is made, in order to bring it within the terms of . the statute;^ the seisin of the remainder-man being in the tenant of the particular estate, if a freehold, for his benefit. This would exclude annuities, as well as uses themselves; so that, as a use cannot be united to a use, it became an axiom of great importance in shaping and adjust- ing the bearing and application of the statute, that "a use cannot be limited upon a use."^ 1 United States v. Amedy, 11 Wheat. 392 ; First Tarish of Sutton v. Cole, 3 Pick. 240. And see post, § 1488. 2 Bac. Law Tracts, 349. The simple reason for this would be, that, so long as J. D. lived, no one could be his heir, and consequently there was no one to act as the medium through whom the seisin was to pass to J. N. 8 1 Cruise, Dig. 353 ; Tud. Lead. Cas. 259. * Merrill v. Brown, 12 Pick. 220 ; Galliers v. Moss, 9 Barn. & C. 267. 6 1 Cruise, Dig. 353. 8 Bac. Law Tracts, 335. See, as to rents, Gilb. Uses, Sugd, ed. 194, n.; Gil- USES AFTER THE STATUTE OF USES. 385 § 1354. Quantity of the Estate of a Feoffee to Uses. — In respect to the quantity of the estate which a feoffee must have in order to give effect to the statute, it was at first understood to require a fee-simj)lc, but it was afterwards held that a free- hold estate was sufficient, excluding all chattel interests in lands, 1 such as leaseholds and copyholds. ^ A tenant for life, therefore, may be seised to uses, and so may a tenant in tail.^ But the use to which it is held can be of no larger estate or longer duration than that of the feoffee, since, without a seisin to sustain it, a use cannot subsist; and if the estate of the feoffee be for life onl}', though in terms to the use of another and his heirs, the estate in the use terminates with that of the feoffee.* But a tenant in tail is so far seised of the inheritance, that he may be seised to a use in fee-simple.^ § 1355. If the Feoffee and Cestui que Use be the same Person, he never takes Uitd^r" th e statute^— but-at- the Gommen la^v, unless there is some impossibility in the way of his thus taking.^ The foregoing doctrine may be illustrated by the case of an estate limited to A, and B his wife, habendum to them, to the use of them and the heirs of their two bodies ; and a question was raised whether the use limited did not exceed the legal estate which was to support it in A and B. It was held to be in effect a limitation of the estate to A and B, and the heirs of their two bodies, at common law. And one reason for this was, that, in order to have a use so limited as to take effect under the statute, it must be to some other person than the one who is seised. In other words, if the one who is seised is to have the use, he simply takes the estate at common law.^ The exception, if it be such, to this bertson v. Richards, 5 Hurkt. & N. 454 ; Franciscus v. Reigart, 4 Watts, 98, 118. 1 1 Cruise, Dig. 350 ; Bac. Law Tracts, 335. 2 Tud. Lead. Cas. 257 ; Warner v. Sprigg, 62 Md. 14. 8 1 Cruise, Dig. 351. * Jenkins v. Young, Cro. Car. 230 ; Bac. Law Tracts, 339 ; Sand. Uses, 109 ; ante, § 149 ; Crabb, Real Prop. § 1646 ; 1 Cruise, Dig. 353 ; Tud. Lead. Cas. 259. 5 1 Cruise, Dig. 352. 6 Bac. Law Tracts, 352 ; 2 Prest. Conv. 481. 7 Jenkins v. Young, Cro. Car. 231 ; Co. Lit. 271 h, Butler's note, 231 ; 1 Cruise, Dig. 353 ; Tud. Lead. Cas. 257 ; 2 Booth, Cas. in Eq. 294 ; Samines' case, 13 Rep. 56 ; Jackson d. White v. Cary, 16 Johns. 302 ; 2 Prest. Conv. 481. VOL. II. — 25 386 USES AFTER THE STATUTE OF USES. rule, is, that if the feoffment be to A and his heirs, to the use of him and the heirs of his body, it is held to take effect under the statute, and to be executed in A for the benefit of his issue in tail.^ § 1856. Cestui que Use in esse essential. — In order to have an estate take effect under the statute, there must be a cestui que use in esse. And if an estate is limited to the use of some one not in esse, or capable of being ascertained, the statute cannot have any operation until the cestui que use comes into being, or is ascertained, and in the meantime the use will remain in the original grantor, waiting to be executed by the statute whenever there shall be a cestui que use to take it.^ And upon the same principle, where a use has been limited by deed and it expires, or cannot vest in the cestui que use named, it results back to the one who declared it.'^ § 1357. Who may be Cestui que Use. — In respect to those who may be cestuis que use, there seems to be no limitation ; even corporations not being excluded."* § 1358. How Limitations made to Cestuis que Use. — In limit- ing estates to cestuis que use, the same terms are requisite under the statute to create a fee or a freehold, or the like, as were necessary in a conveyance at common law ; consequently no fee-simple in uses can be created by deed without the word " heirs." ^ And where an estate was limited to the use of J. S. and his heirs male, it was held to be an estate in fee-simple, because at common law, as heretofore shown, such a limitation would create a fee-simple, there being no words of procreation indicating the body from which the heirs were to proceed.^ But a use may be limited in fee-simple or fee-tail, for life or years, 1 1 Cruise, Dig. 357 ; Samines' case, 13 Rep. 56. 2 Chudleigli's case, 1 Rep. 126 ; 1 Cruise, Dig. 354 ; 2 Bl. Cora. 336 ; Bac. Law Tracts, 350 ; Hayes, Real Est. 64 ; Reformed Prot. Dutch Ch. v. Veeder, 4 Wend. 494 ; Sliapleigh v. Pilsbury, 1 Me. 271 ; Sewall v. Cargill, 15 Me. 414 ; Ashhurst V. Given, 5 Watts & S. 323; Miller v. Chittenden, 2 Iowa, 371 ; post, § 1476. * Jackson d. Lu,dlow v. Myers, 3 Johns. 388. * 1 Cruise, Dig. 354 ; Bac. Law Tracts, 350. And see post, § 1487 et seq. 6 Tud. Lead. Cas. 261 ; Sand. Uses, 122 ; Gilb. Uses, Sugd. ed. 143; Tapner v. Merlott, Willes, 180. This rule, of course, is changed by the statutes regarding the necessity of the word "heirs" to create a fee in conveyances. See ante, § 86. 6 Abraham v. Twigg, Cro. Eliz. 478; Gilb. Uses, Sugd. ed. 143 ; ante, § 163. USES AFTER THE STATUTE OF USES. 387 or in remainder, or rcversion.i And a limitation by deed to the use of J. S. and the issue male of his body is neither an estate tail nor a fee-simple for the want of the word " heirs." It is a mere life estate. ^ § 1359. Terms by which Uses are created. — As to the words necessary in a conveyance to declare or create a use in an- other in respect to that which is conveyed to the feoflfee, the words of the statute are " use^ confidence^ or trust.'^ But it would be sufficient if the words used clearly indicated an intention to create a use, althouj^h not those found in the statute. ^ § 1360. Where Feoffee may take as Cestui que Use. — There are many cases where one may take as cestui que use, although lie is named also as feoffee notwithstanding the strong terms in which the law holds an estate limited to one to his own use and that of his heirs to be an estate at common law. Such would be the case if the seisin and use did not vest equally and alike in the same person. The limitation might be good under the statute in passing the estate by executing it in the cestui que use, provided such was the intention of the parties. Thus where several persons are seised to the use of one of them, the estate is executed according to the use. So if the estate be limited to A B and his heirs, to the use of him and the heirs of his body, it will be executed in the use as an estate tail. So an estate to A to the use of A and C and their heirs, it was held that they were joint-tenants, and that A did not take a half as tenant in common by the common law, but the whole estate was executed in the use according to its intent, being an estate in joint-tenancy.^ So, " if J. enfeoff J. S. to the use of J. D. for life, then to the use of himself for life, with remain- der to the use of J- N. in fee, the law will not admit fractions of estates, but J. S. is in with the rest by statute." "So if J. enfeoff J. S. to the use of himself and a stranger, they shall both be in by the statute, because they could not take jointly, taking by several titles." ° 1 1 Cruise, Dig. 354. See Stat. 27 Hen. VIH. c. 10, § 1. 2 Nevell V. Nevell, 1 RoUe, Abr. 837, R. 1 ; Sand. Uses, 123. 8 Tud. Lead. Cas. 258 ; Boydell v. Walthall, F. Moore, 722. * Sarames' case, 13 Kep. 55 ; 1 Cruise, Dig. 357. 6 Bac. Law Tracts, 353 ; Tud. Lead. Cas. 258 ; Sand. Uses, 94-96. 388 USES AFTER THE STATUTE OF USES, § 1361. Conveyances, impossible at Common Law, became possible under Statute. — Among the instances and illustra- tions of accomplishing the conveyance of an estate by the use being executed in the cestui que use, which could not be done directly at common law, is that of a conveyance by a husband to his wife. At common law, such a deed would be void. But by a feoffment or covenant to stand seised made by a husband to a third person, to the use of his wife, the estate would be exe- cuted in the use, and made effectual by the statute.^ So where A conveyed to B, to the use of A and his wife for life, remain- der to the use of C and D and their heirs, it created an executed estate to A and his wife jointly for life, and a vested remainder in fee to C and D.^ So one having a mere seisin of lands in fee may convey them to B, to the use of himself for life, or to the use of himself and B for life, with remainder to A in tail, and the conveyance be good under the statute.^ So if lands be conveyed to A and his heirs, to the use of B and his heirs, the entire estate is executed in B by the statute ; and if, instead of its being to the use of B and his heirs, it had been to the use that B should receive the rents and profits during life,B would, in such case, be seised of an executed estate for life, according to the use as declared.'* § 1362. Contingent Remainders by Way of Uses. — As at com- mon law there must be, with very few exceptions, some one in whom the seisin of an estate rests, if an estate is limited in remainder to a person not yet in esse, as to the oldest son of A B, who has none, or the heirs of C D, who is living, and whose heirs cannot therefore be ascertained, it is a contingent one, and requires that there should be some one to whom a freehold estate should be limited at the same time that the remainder is created, as to A B for life, remainder to the heirs of C D, who is then living. And if there be no prior estate to sustain such remainder, or it is one for years only, which would not sustain the remainder, it would accordingly fail 1 Thatcher v. Omans, 3 Pick. 521 ; Martin v. Martin, 1 Me. 394 ; 1 Cruise, Dig. 354 ; Tud. Lead. Cas. 262; Co. Lit. 112 a; Bedell's case, 7 Rep. 40. Cf. Kellogg V. Hale, 108 111. 164. 2 Johnson i'. Johnson, 7 Allen, 197. 3 Tud. Lead. Cas. 261. * Tud. Lead. Cas. 358 ; Right d. Phillips v. Smith, 12 East, 455. USES AFTER THE STATUTE OP USES. 389 altogether. The same rule applies to contingent remainders limited by way of use. Thus, if a grant of a wife's estate was made by the husband and wife to the use of the heirs of the body of the husband on the wife begotten, remainder to the use of the right heirs of the husband, there would be no diffi- culty in such a case in finding a life estate to sustain the re- mainder so long as the wife lived, for the use resulted to her, as she had never parted with it. But, she dying before her husband, the limitation to the right heirs of the husband became void ; for the remainder was contingent while he lived, and there was no estate to sustain it after her death. ^ So where a grant was made to the use of the grantor foi- seventy years, if he so long lived, remainder to the heirs male of his body, it was held, that, as a limitation of a contingent remain- der in favor of the heirs of his body, it was void, because the prior estate in the use in himself was one for years.^ Though there are cases where, if the use of the prior estate be limited to a third party and not to the grantee, and is for years, and there be a use by way of contingent remainder, dependent upon the death of the grantor, the remainder will be sustained by an implied or resulting use to the grantor for life, after the use for years which has been thus expressly limited.^ The difference between the two cases being, that in the first the law would not imply a use for life when the expi-ess limitation was seventy years ; and in the second, as only a limited num- ber of years was granted to another, all that remained between the end of that term and the taking effect of the remainder over at his death resulted to him who created it, whereby a succession of vested estates, taken together, supplied collec- tively a complete estate between the taking effect of the grant and the final vesting of the contingent remainder. § 1363, A Use in esse necessary. — The third requisite to bring a case within the statute is, that there be a use in esse, 1 Davies v. Sjieed, 2 Salk. 675 ; Fearne, Cont. Rem. 284, n. 2 Rawley v. Holland, 2 Eq. Cas. Abr. 753 ; Adams v. Savage, 2 Salk. 679 ; Tiul. Lead. Cas. 261 ; 1 Pre.st. Est. 195 ; Fearne, Cont. Rem. 284 ; 1 Spence, Eq. Jiir. 504. 3 Beverley v. Beverley, 2 Vern. 131 ; 1 Prest. Est. 197. Limitations like those above mentioned, which are future and contingent, may, undpr some cii-cunistajices, be good by the way of springing uses or executory devises. Sand. Uses, 142, 143 ; Hayes, Real Est. 67. 390 USES AFTER THE STATUTE OF USES. either in possession, reversion, or remainder, though it is immaterial whether this use is created by express declaration, or results or arises by implication of law.^ § 1364. When and how Uses are executed. — If, therefore, these three things concur, namely, a person seised to a use, a cestui que use, and a use in esse, the use is said to be executed. And if the use declared be not in esse at the time, it cannot be executed until it comes in esse. The consequence would be, that if, in the mean time, the feoffee is disseised, or parts with his seisin to a stranger without notice of the use, and for a valuable consideration, the seisin will be wanting if the use comes in esse, and it therefore can never be executed in the cestui que use.^ And growing out of this capacity in a use of being executed when it comes in esse, thougli subsequent to its being declared, a principle is applied in respect to creating a joint-tenancy in a use, which is different from that of the com- mon law. An estate may be limited to several as joint-tenants by the way of use, and may be executed in them in succession, one after the other, instead of taking effect at one and the same time, as is required by the common law. Thus, in a limitation to the use of A and any wife he should marry, the use would be executed in A alone until he married, when it would also be executed in his wife as joint-tenant with him.^ § 1365. Seisin transferred by executing a Use. — The effect of a use being executed in the cestui que use, as above ex- plained, is, that the statute comes in and actually transfers the seisin and possession from the feoffee to use to the cestui que use, to all intents and purposes, without any actual entry being necessary to give him the seisin. It is not merely a title, but an actual estate, wliich is thus created in the cestui que use, as effectually as if it had been done by a conveyance with livery of seisin at common law.* § 1366. statute guards against Merger as to Feoffee. — The statute, it will be perceived, recognizes both the common law 1 Chudleigh's case, 1 Rep. 126 ; 1 Cruise, Dig. 358. 2 Chudleigh's case, 1 Rep. 126. 8 Tud. Lead. Cas. 262 ; Bac. Law Tracts, 351. * Bac. Law Tracts, 338 ; 1 Sand. U.ses, 119 ; Aiion., Cro. Eliz. 46 ; 1 Crui.se, Dig. 358 ; Tud. Lead. Cas. 260 ; Co. Lit. 266 b ; Barker v. Keat, 2 Mod. 249 ; Witham v. Brooner, 63 111. 344. USES AFTER THE STATUTE OP USES. 391 and the existing law of uses, and is careful to guard against their conflicting with each other, wherever it did not intend to restore the common law by extinguishing uses. Thus, at com- mon law, if one having a lesser estate, a term for years, for example, were to become vested with a greater one, as a fee, for instance, his lesser would merge in his greater estate. And if in a case like this, one who had a term for years had been made feoffee in fee to the use of another, the effect might have been first to merge his own estate into that held by him as feoffee, and next to transfer that, by force of the statute, to the cestui que use, and thus destroy his own estate altogether. The third section of the statute guards against such a conse- quence by declaring that it shall not have that effect.^ And, as has already been stated, the courts, in construing the statute, required the rules of the common law to be observed in regard to the words requisite to create estates of inheritance in con- veyances to uses.2 § 1367. Union of Common Law with Uses by the Statute. — But this recognition by the statute of both the common law and the law of uses left so much room for construction, that it led prac- tically to the ingrafting of the one upon the other in the apj)lica- tion of the statute by the courts. Thus many of the rules of the common law were made to give place to sundry modifications of the laws of real property, which had been adopted by chan- cery befoi'e the statute, in dealing with uses as distinct from the legal estate. To justify them in so doing, they seized upon that expression which has before been referred to in the statute, uniting the estate of the feoffee to use with the use, in the cestui que use, " after such quality, manner, form, and condition as he had before in or to the use, confidence, or trust that was in him." " The effect is," says Bacon, " that cestui que use shall be in possession of like estate as he hath in the use ; the fiction, quo modo, is, that the statute will have the posses- sion of cestui que use as a new body compounded of the matter and the form, and that the feoffee shall give matter and sub- stance, and the use shall give form and quality." " But the statute meant such quality, manner, form, and condition as is 1 Statute 27 Hen. VIII. c. 10, § 3 ; 1 Cruise, Dig. 358. 2 Sand. Uses, 122 ; Tud. Lead. Cas. 261. 392 USES AFTER THE STATUTE OF USES. not repugnant to the corporeal presence and possession of the estate." ^ 8 1368. Of Uses to commence in Futuro. — At common law a freehold could not be limited to commence in futuro, without some intermediate estate to sustain it as a remainder. But, before the statute, a use might be limited to spring up at a future period, without any such previous estate. So if, at common law, a man seised of a fee parted with it by feoffment, he could exercise no further control over it, unless it might be to regain it to himself upon tlie breach of some condition. But, before the statute, chancery allowed one to create a use in favor of some one in fee, and, at the same time, reserve the power of divesting the first grantee of the use, and of passing it over to another in fee. Accordingly, Lord Hardvvicke, re- ferring to springing uses and powers such as are above de- scribed, as well as to contingent uses and executory devises, which will be more fully explained hereafter, declares that these were all foreign to the notions of the common law, and could not be limited upon common law fees, but were let in by construction, by the judges themselves, upon uses, after these had become legal estates.^ § 1369. Freeholds in Futuro raised by Uses. — Agreeably to this statement, the judges sustained limitations, by way of use, of freeholds to commence in futuro without any particular estate to sustain them, and allowed a use to shift from one person to another, by some matter, ex post facto, although limited at first in fee, because the same thing had been done with uses by chancery before the statute.^ And in pursuance of this doctrine it was held, that a covenant to stand- seised (and the word grant is in some cases sufficient for this) to a future use would be good, without any provision as to the estate in the meantime, since the use would, in such case, be held to result to the covenantor, and, in a way hereafter to be explained, his seisin serves the uses, that is, is united with the uses as they arise, whereby they become executed estates.^ So 1 1 Cruise, Dig. 363 ; Castle v. Dod, Cro. Jac. 201 ; 27 Hen. VIII. c. 10, § 1 ; Bac. Law Tracts, 337, 340. 2 Hopkins v. Hopkins, 1 Atk. 591. 3 1 Cruise, Dig. 363 ; Tud. Lead. Cas. 262. 4 Roe d. Wilkinson v. Tranmair, Willes, 682 ; s. c. 2 Wils. 77 ; Tud. Lead USES AFTER THE STATUTE OF USES. 393 if A enfeoff B to the use of C, after the death of A, it will be a good use in C, though infuturo, the use until the death of A resulting to hiin.^ § 1370. As to Freeholds in Puturoby Bargain and Sale. — It 18 laid down in unqualified terms, in several American cases, that an estate of freehold cannot be created to commence in futuro by a deed of bargain and sale.^ But in another case, where there was a grant to a religious society not yet in esse, it was held that the right to the possession and custody of the land remained in the grantor till the society became in esse; and although the language of the court does not designate the con- veyance as a bargain and sale, or covenant to stand seised, or Si fjratit, they nevertheless for tha-purposes of giving full effect to the grant, and of preserving the estate granted for the uses intended, consider the fee as remaining with the grantor. This, of course, was treating the grant to the society as an estate in fee which was to take effect in futuro.^ In a later case, it was held in Illinois, that a conveyance by bargain and sale of an estate in fee, to begin after the death of the grantor, was a valid conveyance of the fee, and that there was a resulting use to the grantor for his life.* In Jackson v. Dunsbagh,^ more- over, the court of New York held that a bargain and sale of a freehold in futuro would be good, because the use in the mean- time resulted to the bargainor. "Here," say the court, "is a conveyance to the bargainee to take effect at the decease of the bargainor." The court cite Bacon's Law Tracts, 352, in which it is said : " If I bargain and sell my land after seven years, the inheritance of the use only passeth, and there remains an estate for years by a kind of subtraction of the inheritance or occupier of my estate, but merely at the common law." Cas. 262; Osnian v. Sheafe, 3 Lev. 370 ; 2 Smith, Lead. Cas. 288-297; Hayes v. Kershow, 1 Sandf. Ch. 2.58, 267 ; Sleigh v. Metham, 1 Lutw. 782 ; Doe d. Mil- burn V. Salkeld, Willes, 674. 1 Tud. Cas. 262 ; Gilb. Uses, Stigd. ed. 163. 2 Pray v. Pierce, 7 Mass. 381 ; Parker r. Nieliols, 7 Pick. 115; Gale v. Coburn, 18 Pick. 397; Brewer v. Hardy, 22 Pick. 376 ; Marden v. Chase, 32 Me. 329. 8 Sha]ileigh v. Pilsbury, 1 Me. 271. The technical <:;rounds on which the case was decided are not very satisfactorily stated. It is obviously a case of a spring- ing use. See post, § 2279. * Shackelton v. Sebree, 86 111. 620. 5 .Tackson d. Trowbridge v. Dunsbagh, 1 Johns. Cas. 96 ; Gilb. Uses, Siigd. ed. 163 ; Jackson d. Watson v. McKenny, 3 Wend. 235. 394 USES AFTER THE STATUTE OF USES. § 1371. By Bargain and Sale, continued. — In the case cited from New York, the conveyance was between father and son, but tliere was a consideration of ten shillings acknowledged in the deed. But in a case in Massachusetts, Judge Jackson uses this language : " The principle, then, seems to be, that a man may convey his land by a covenant to stand seised thereof to the use of another, either for certain good considerations or for a valuable consideration ; but in the latter case the convey- ance, being in effect a bargain and sale, must have all the other requisites and qualities of a bargain and sale. One of these qualities is, that it must be to the use of the bargainee, and that another use cannot be limited on that use ; from which it follows, that a freehold to commence in futuro cannot he conveyed in this mode, as that would be to make a bargainee hold to the use of another until the freehold should vest." ^ The question would seem to be, therefore, whether, in the cases where it has been held that there may be an estate of freehold in futuro, created by bargain and sale, it is not, in effect, holding that estates may be created by covenant to stand seised, although the consideration is a pecuniary one?^ In addition to the foregoing decided cases, the language of eminent writers upon the subject may be cited. Mr. Sugden, speaking of springing uses, says : " If raised by a covenant to stand seised, or bar- gain and sale, the estate remains in the covenantor or bargainor until the springing use arises. Therefore a bargain and sale to the use of J. D., after the death of J. S. without issue, can- not be limited on a bargain and sale to a person not in esse." ^ Mr. Cornish says : " By bargain and sale or covenant to stand seised, a freehold maybe created in futuro." '^ Mr. Sanders says : " Rolle, indeed, puts the case of covenant to stand seised for money ; but such covenant would, at this day, operate as a bargain and sale." ^ 1 Welsh V. Foster, 12 Mass. 9.3, 96. 2 Jackson v. McKenny, 3 Weiid. 235 ; Jackson d. Wood v. Swart, 20 Johns. 85; Hayes v. Kershow, 1 Sandf. Ch. 267, 268; Jackson d. Staats v. Staats, 11 Johns. 337; Bell v. Scanimon, 15 N. H. 381, 394; U. S. Bank v. Housman, 6 Paige, 526 ; pnxf, §§ 2279, 2280. 3 Gilb. Uses, by Sugd. 163 ; Tud. Lead. Cas. 262. * Cornish, Uses, 44, 89 ; 2 Smith, Lead. Cas. (5th ed.) 451. 6 2 Sand. Uses, 59. USES AFTER THE STATUTE OF USES. 395 § 1372. Powers reserved by Means of Uses. — For reasons above stated, a feoffor was allowed to reserve to himself or some other person a power of revoking a limitation of uses which he should make, and to appoint a new use instead there- of, to some other person, since, as the law stood before the statute, the feoffee had no interest in the land other than to execute the directions of the feoffor as to who should have the use of the estate, and the feoffor might change these uses at his will, even though the first use declared was in fee. Tliis could not have been done at common law, since, after a man had parted with his seisin and fee, he could have no further control over the estate.^ § 1873. Future and Contingent Uses. — Different terms arc applied to describe future uses, depending upon the manner in which they are to arise. If a use is to arise by the happening of some contingent event which is provided for by the deed declaring it, which event may be called the act of God, it takes the name of a future, a contingent, or an executory use. But when it arises from the act of some agent or person named in the deed creating it, it is called a use arising from the execu- tion of a power. Both are in effect, however, future or con- tingent uses till the act is done.^ Whenever the use comes in esse, by whatsoever means, the statute vests the seisin in the cestui que use.^ The estate thus acquired by the cestui que use has the qualities and is subject to all the legal incidents of a legal estate, such as escheat, dower, curtesy, and the like ; while that of the feoffee to use, being instantly taken out of him as soon as created, is not subject to any of these legal incidents.* § 1374. Some Future Uses treated as Remainders. — But if a future contingent use is limited as a remainder, the same rule applies as to its being necessary that it should vest during the particular estate, or immediately on its determination, as was applied at common law to remainders in the conveyance of lands, and as will be explained hereafter.^ 1 1 Cruise, Dig. 364 ; Co. Lit. 237 a. 2 Shep. Touch. Prest. ed. 529, n. ; Weale v. Lower, Pollexf. 65 ; Gilb. Uses, Sugd. ed. 159. s Shep. Touch. Prest. ed. 529, n. * Tud. Lead. Cas. 261 ; Sand. Uses, 119. 8 Chudleigh's case, 1 Eep. 130, 135 ; Tud. Lead. Cas. 261 ; Gilb. Uses. Sugd. ed. 396 USES AFTER THE STATUTE OF USES. § 1375. Enrolment of Deeds of Bargain and Sale. — Although one of the professed objects of the statute was to restore sim- plicity and notoriety in the transfer of estates, it might, under tlie construction given by the courts, be made the means of complicating conveyances of lands, as well as of their being secretly made. It retained uses, thereby doing away with the formal livery of seisin as a means of notoriety ; and so obviously did it fail to restore the former notoriety of the common law, by allowing the contract of sale to be complete and effectual by a mere oral agreement, that an attempt was made, the very same year with the passage of the act, to correct this evil by a second act, 27 Hen. YIII. c. 16, which required conveyances of land by a bargain and sale to be in writing, indented and sealed, if it was of a freehold estate, and to be enrolled in one of the king's courts of record at Westminster. But this did not extend to a bargain and sale of lands for a term of years.^ § 1376. Modes of conveying Lands by Means of Uses. — But as, prior to the statute of frauds in the time of Charles the Second, it did not require a written instrument to convey corporeal hereditaments, except as provided in the matter of deeds of bargain and sale, the ingenuity of conveyancers was not slow in devising various modes of conveying lands, which, while conforming to the letter of the statute of frauds, made the transfer of these a secret act between the parties. By some of these modes the grantor parted with the possession of his land by force and effect of the common law in the act of con- veying it ; in others he did not. The former were said to be conveyances by the transmutation of possession ; the latter, conveyances without such transmutation. In the former, the grantor transferred the seisin, by feoffment at common law, to an intermediate feoffee, while he named the cestui que use to whom the use was given, and the statute passed the seisin of the grantor through such feoffee to the cestui que use, thus completing a title in him by the union of the seisin and the use ; in the latter, the grantor gave or raised the use in favor of the cestui que use, without parting with the seisin to any 165 ; Adams v. Savage, 2 Salk. 680 ; Fearne, Cont. Rem. 284. See post, § 1618 et seq. 1 Wms.Real Prop. 150 ; Bac. Law Tracts, 344 ; 1 Cruise, Dig. 365 ; Gilb. Uses, Siigd. ed. 502. USES AFTER THE STATUTE OP USES. 397 intermediate person, the seisin that was in himself serving the use being taken from him by the statute and united with the use in the cestui que use. The ultimate effect was tlic same in the one mode as in the other. ^ But in the former, if •the grantor wished to create an estate in fee in the cestui que use, he must give a fee to the feoffee to use. A hmitation to A to the use of B and his heirs would create only a life estate in B, as though the use was one for life, unless the feoffee and cestui que use are the same person. ^ § 1377. Conveyances by Transmutation of Possession. — Of the modes of conveyance by the transmutation of the possession above referred to, one was by feoffment to use, as where A en- feoffed B to the use of C. The statute directly and at once took the seisin from B, and united it with the use in C, thereby completing the title in him.^ Another mode, spoken of in the statute, was by fine and recovery, described in a former part of this work;* and where either of tliese was accompanied with a declaration of uses in a proper form, it constituted a conveyance to uses.^ Fines have been abolished in England and are of no practical interest in this country. § 1378. Without Transmutation — Bargain and Sale. — The modes of conveying estates without the transmutation of pos- session were more numerous than those of the class above mentioned. One of tliese, bargain and sale, has already been mentioned, as well as the fact that the statute required the deed thereof to be enrolled, if the estate conveyed was a free-, hold. This mode of conveyance consisted of a contract or bargain by the owner of land, in consideration of money or its equivalent paid, to sell the land to the bargainee ; where- upon a use arose in favor of the latter, and the statute at once took from the bargainor the seisin which was in him, and ^ Browne, Stat. Frauds, 4 ; Wms. Real Prop. 151. 2 3 Prest. Abst. 123. 8 Watk. Conv. (White's erl. 1838) 240 ; Tnd. Lead. Cas. 265 ; Wms. Real Prop. 150 ; id. 165 ; 4 Kent, Com. 294 ; Thatcher v. Omans, 3 Pick. 521. * Ante, §§ 185, 186. 6 2 Prest. Conv. 480 ; 1 Cruise, Dig. 367; Sand. Uses. 219. Fines might be levied in New York, by way of quieting titles, iintil 1830, when the same were abolished by statute. A case of this kind is found in McGregor v. Com.stock, 17 N. Y. 162, where the form of proceeding is described. But this does not seem to answer to the conveyance of lands by means of a fine, which is above referred to. 398 USES AFTER THE STATUTE OP USES. transferred it to the bargainee, who already had the use, and thereby made his title complete.^ And although by the statute of enrolments such indenture must be enrolled in order to have the full effect of a conveyance, such a bargain and sale made in requisite form, without the enrolment, would be treated by chancery as evidence of an agreement to convey, which might be enforced against the bargainor. § 1379. Covenant to stand seised. — Another of these modes was by what was called a covenant to stand seised, where the person seised of land, being induced to part with the estate to his wife or some person to whom he was akin by blood, in consideration of such relationship, covenanted to stand seised of the same to the use of such person, either in present or in future. By such covenant he raised the use at the time when, by its terms, the covenant was to take effect ; and as soon as the use was raised, it became executed by the statute out of the seisin of the covenantor, by taking that and executing it with the use in the cestui que use? The covenant must of course be by deed in order to constitute it a covenant ; and the usual term employed in creating it is " covenant," though any other words may be adopted which are tantamount, as " bargain and sell," if applied where the consideration of the deed is blood or marriage.^ And although it may be usual to make the covenant with the one who is to have the benefit of the use, this does not seem to be necessary ; as in Bedell's case, for instance, the owner of the land, together with his wife, covenanted with his second and third sons that he the grantor and his heirs would stand seised of the tenements to the use of himself for life, and after his decease to the use of his wife, and after her death to the use of the two sons in moieties, in tail. And it was held, that the use thereby raised to the wife 1 Tud. Lead. Cas. 265 ; Mestaer v. Gillespie, 11 Ves. 625, by Eldon, Ch. It was held in Marj'land, that although an existing incorporeal hereditament, like a right of way, could be conveyed by deed of bargain and sale, it could not be created by a deed in that form ; it must be done by grant or lease. Hays v. Richardson, 1 Gill & J. 378 ; Beaudely y. Brook, Cro. Jac. 189 ; Shep. Touch. Preston's ed. 222, note ; and the reason given is, that there can be no use of a thing not in esse, as a way, common, and the like, newly created. 2 Watk. Conv. (White's ed. 1838) 333, 337 : Tud. Lead. Cas. 265. 8 Watk. Conv. (White's ed. 1838) 335, 336; Sand. Uses, 79 ; Emery v. Chase, 5 Me. 232. USES AFTER THE STATUTE OP USES. 399 was a good one.-^ A husband cannot, however, covenant with liis wife.^ § 1380. Of the Considerations to support Conveyances. — The rule in England seems to have been very stringent in requiring a bargain and sale to be for a valuable consideration, and a con- veyance by covenant to stand seised to be for the consideration of marriage or consanguinity. Nor will they allow a convey- ance to have the effect of a bargain and sale where the consid- eration is not a valuable one, nor of a covenant to stand seised where the consideration is not that of marriage or consanguin- ity. And if these respective considerations were wanting, the bargain and sale, or covenant, as the case might be, would be inoperative.^ Though the Touchstone, treating of what would form a good consideration which would be sufficient to sustain a covenant to stand seised, says that " covenant to stand seised to the use of himself, his wife, or intended wife, children, brothers, sisters, or cousins, or their wives or intended wives, these are good considerations, and the uses and estates thereupon thus raised and made are good." ^ But a more liberal rule seems to prevail in the United States as to giving effect to a covenant to stand seised where the consideration stated in the deed is a pecuniary one. And courts have often construed deeds as covenants to stand seised, which were insufficient in form to operate otherwise as a conveyance of land, where the intention of the parties could be ascertained from the deed. But this will be further considered hereafter.^ § 1381. Covenant must not be executory. — If the covenant or bargain be an executory one to convey or settle lands to certain 1 Bedell's case, 7 Rep. 40 ; Co. Lit. 112 a ; Brewer v. Hardy, 22 Pick. 376 : Barrett v. French, 1 Conn. 354 ; Hayes v. Kershow, 1 Sandf. Ch. 258 ; Leavitt V. Leavitt, 47 N. H. 329 ; Cornish, Uses, 43, 44. 2 3 Wood, Conv. 286 ; 2 Rolle, Abr. 788 ; Co. Lit. 112 a. 3 4 Kent, Com. 493 ; Den d. Siirings v. Hanks, 5 Ired. 30 ; Sand. Uses, 81 ; Jack- son d. Houseman v. Sebring, 16 Johns. 515; 1 Cruise, Dig. 107; Smith r. Risley, Cro. Car. 529 ; 3 Wood, Conv. 285. * Shep. Touch. Hiliiard's ed. 512. 6 1 Greenl. Cruise, Dig. 107, note ; Welsh v. Foster, 12 Mass. 93, 96. And one reason why the American courts are less stringent in discriminating between these modes of conveyance doubtless is, that there is no distinction here as there is in England as to recording the deeds, no enrolment being required there of a covenant to stand seised. See Rawle's note to Wms. Real Prop. 153 ; 4 Kent, Com. 494 ; Bowman v. Lobe, 14 Rich. Eq. 271. 400 USES AFTER THE STATUTE OP USES. uses, it would not operate as a conveyance. To have that effect, it must be an actual present bargain and sale, or covenant to stand seised.^ § 1382. Lease and Release. — Another mode of conveyance, without actual transmutation of possession of the land, derived its force and validity partly from the statute of uses, and partly from the common law, and was known as lease and release. It was in use for more than two centuries, and, until the recent act 8 & 9 Yict. 106, was the most usual form of conveying lands in England, and was at last superseded by that act mak- ing a simple deed of grant sufficient to convey corporeal as well as' incorporeal hereditaments.^ There seems to have always prevailed in England a disposition to avoid giving notoriety to the conveyance of lands, from the general custom, perhaps, that prevails there of making them the subjects of family settlement and arrangement. It is to this that the opposition to a gen- eral registry act is probably to be ascribed. It was to this dis- position that the form of conveyance by lease and release owed its origin. Secret conveyances could not be effected by bargain and sale, for these, if the estate conveyed was a freehold, were req^uired to be enrolled. Nor could it be by covenant to stand seised where the consideration was a valuable one. Lord Norris, accordingly, being desirous of conveying some of his lands in a secret manner, employed Sir Francis Moore, a serjeant at law, at one time a reader at the Temple, and known as the author of "Moore's Reports," and who lived between 1558 and 1621, to devise some plan to effect this purpose. He adopted a liint from the exception made in the statute in respect to enrolling bargains and sales, where the estate was less than a freehold. Acting upon this, he conveyed the estate by bargain and sale in the usual form to the bargainee for one year, which took effect by force of the statute of uses, without the necessity of any enrol- ment so as to make the lease good without any entry made or formal possession delivered. The bargainor, lessor, or grantor (for he acted all these parts) was then to execute and deliver an ordinary deed of release at common law, to the bargainee or lessee, in fee ; and this did not require any livery of seisin to 1 Tud. Lead. Gas. 260 ; 1 Sand. Uses, 114 ; Edwards v. Freeman, 2 P. Wms. 435 ; Trevor v. Trevor, 1 P. Wrns. 622 ; Blitheman v. Blitheman, Cro. Eliz. 280. 2 Wms. Real Prop. 153 ; Gilb. Uses, Sugd. ed. 224. USES AFTER THE STATUTE OP USES. 401 give it effect, since the grantee or releasee was theoretically already in actual possession of the premises. The bargain and sale for the year was usually by deed, though by the statute of frauds it was only required to be in writing. And this deed was usually dated the day before the deed of release, and ac- knowledged the receipt of some nominal sum of money, but was executed the same day with the release. This form was continued up to 1841, when, by statute, it might be effectual if made by a single decd.^ § 1383. Lease and Release in the United States has been used to some extent as a mode of conveyance, but is now rarely, if ever, employed.^ § 1384. Formalities in declaring Uses. — Prior to the statute of frauds uses might have been declared by parol. But, by that statute, all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, except such as arise or result by implication of law, are required to be manifested and proved by some writing signed by the party, or by his last will and testament.^ And where the conveyance is by trans- mutation of possession, it is not necessary that this declaration should be by the same instrument by which the conveyance is made. It will be sufficient if done by that or a distinct instru- ment. But instruments which do not operate by transmutation of possession, such as bargain and sale, covenant to stand seised, and the execution of an appointment under a power, are in themselves the declaration of the uses to which the seisin is 1 Wins. Real Prop. 151, 153; 2 Prest. Conv. 219; Tiid. Lead, Cas. 265; Wal- lace, Reporters, 86. 2 Wins. Real Prop. 153, Rawle's note; Lewis v. Beall, 4 Harr. & M'H. 488. The distinction between the various forms of deeds has been largely effaced in the United States. Li many States, by statute, livery of seisin is abolished, and all deeds, of wluitevor form, take etlect in the same manner as feofTinents at common law, i. e. vesting the possession and legal title in the grantee. Wyman v. Brown, 60 Me. 139 ; Abbott v. Holway, 72 Me. 298 ; Witham v. Brooner, 63 111. 344 ; Shackelton v. Sebree, 86 III. 620; Love v. Harbin, 87 N. C. 249 ; Mosely v. Mosely, ib. 69 ; Ocheltree v. McClung, 7 W. Va. 232. Whenever such a deed contains proper words of conveyance, it is sufficient to convey any kind of an interest in land, whether to begin at once or in the future, and this conveyance is effected without the intervention of the statute of uses. Abbott v. Holway, supra. Where the instrument does not contain words of conveyance, but can be construed only as an agreement for a future conveyance, then the effect of the statute of uses is perceived. Eysaman v. Eysainan, 24 Hun, 430. 8 And see post, § 1461. VOL. II. — 26 402 USES AFTER THE STATUTE OF USES. executed by the statute.^ There are no formal words required to be employed in declaring a use. It is only necessary that the declaration should be certain, and especially as to the persons in whose favor it is intended to be made, the estates they are to take, and the lands in regard to which the declaration is made.^ § 1385. Of Uses resulting by Implication. — The doctrine of uses resulting to the grantor of an estate by implication, before the statute, as heretofore mentioned, is in force in certain cases, by the construction which has been given to the statute. But it only applies where there is no consideration to raise the use in favor of any other person. Consequently a use can result only upon a grant of a fee-simple estate ; for the duties which attach to the estate of a tenant in tail, for life, or for years, constitute, in the eye of the law, a consideration for the convey- ance so far as to negative the idea of a use resulting to him who made it, for the want of a consideration, even though none was actually paid.^ § 138G. Examples of Resulting Uses. — Among the cases where the law would raise a resulting use is that of one conveying his land in fee in a common-law form without declaring the use, and where no consideration is acknowledged. The use in such case would be executed in the grantor himself.^ So, if, in the case above supposed, the use as to a part only of the estate is declared, it would result as to the residue to the grantor ; as where a conveyance is made by a man to the use of his heirs, and no use is declared of the same during his life, an estate for life arises in his own favor by implication. So if, besides the use to his heirs, he had declared an immediate use to one for years, so much of the use as would be left between the expira- tion of the term for years and the grantor's death, when the use to his heirs would be executed, would result to him ; and thus would be created, in effect, a present use for years, a use 1 Stat. 29 Car. II. c. 3, §§ 7, 8 ; Sand. Uses, 229 ; Shep. Touch. 519 ; Tud. Lead. Gas. 266. 2 Tud. Lead. Gas. 267; Shep. Touch. 520 ; Sand. Uses, 229. 8 Castle V. Dod, Cro. Jac. 200 ; Perkins, §§ 533-535 ; 1 Spence, Eq. Jur. 452 ; 2 Kolle, Abr. 781, F. ; 1 Cruise, Dig. 376 ; Tud. Lead. Gas. 258 ; 1 Prest. Est. 192. * Armstrong v. Wolsey, 2 Wils. 19 ; Beckwith's case, 2 Rep. 58 ; Sand. Uses, 100. A deed of bargain and sale in which the consideration is left blank would be inoperative. Moore v. Bickham, 4 Binn. 1. As to the effect of acknowledging consideration, nee post, §§ 1419, 1426. USES AFTER THE STATUTE OP USES. 403 in remainder for life to the grantor, and a nse to his heirs in remainder after his decease. So if the limitation be by A, for a valuable consideration, to B in fee, to the use of B for life, without any other declaration, the use in fee after B's death would result to the grantor.^ In the language of the court of New York, " As a general rule it is true, that where the owner, for a pecuniary consideration, conveys lands to uses, expressly declaring a part of the use, but making no disposition of the residue, so much of the use as the owner does not dispose of, remains in him. For example, if an estate be conveyed for a valuable consideration to feoffees and their heirs, to the use of them for their lives, the remainder of the use will result to the grantor." ^ So if a feoffment were made to the use of A B for life, with a remainder to the use of the right heirs of C D, the reversion of the use remains in the feoffor until the heirs of C D shall have been ascertained.^ And if a feoffment be to the use of such person as the feoffor shall appoint by his will, or to the use of himself and wife after their marriage, the use results to the feoffor until the appointment is made in the one case, or the marriage is had in the other.^ So where a hus- band and wife conveyed the estate of the wife by fine without any declaration of uses, or a man conveyed to trustees to uses which, by their terms, were not to be executed till after his death, it was held, in the one case, that the use resulted to the wife, and in the other to the grantor during his life.^ But if there be a limitation of uses to one and his heirs during the life of the grantor, and then a limitation to the use of the heirs of the grantor's body, there would be no resulting use to him, and his issue would take as purchasers.^ 1 1 Prest. Est. 191 ; Wilkins v. Perrat, F. Moore, 876 ; Woodliff v. Drury, Cro. Eliz. 439 ; Pibus v. Mitford, 1 Ventr. 372 ; Tipping v. Cozens, 1 Ld. Raym. 33 ; Tud. Lead. Cas. 258 ; 1 Cruise, Dig. 370 ; Sand. Uses, 103, 104 ; FearHs, Cent. Rem. 48 ; tDo. Lit. 23 a ; Kenniston v. Leighton, 43 N. H. 311 ; Farringtou ?;. Barr, 36 N. H. 88, 89. •^ Van der Volgen v. Yates, 9 N. Y. 223. 3 Bac. Law Tracts, 350. * Sir Edward Clere's case, 6 Rep. 17 ; Bac. Law Tracts, 350. 6 I^eckwith's case, 2 Rep. 56 a ; 1 Cruise, Dig. 372. 6 1 Prest. Est. 194 ; Co. Lit. 22 b, note 135 ; Sand. Uses, 132 ; Fearne, Cent. Rem. 51 ; Tippin v. Cosin, Carth. 272 ; s. c. 4 Mod. 380 ; Shelley's case, 1 Rep. 95; Sand. Uses, 132. See post, § 1399, for the distinction between a limitation over to the heirs of the body of the grantor and his heirs generally. 404 USES AFTER THE STATUTE OF USES. §1387. "What Consideration prevents Use from resulting. — But a consideration, though merely a nominal one, as five shillings, for instance, if actually paid, or even, as was held in one case of lease and release, a rent reserved of a pepper- corn, would be sufficient to make a good conveyance, and to prevent the use from resulting.^ And the same effect, it would seem, would follow from an express acknowledgment of the receipt of a consideration in a deed ; for " an averment shall not be allowed or taken against a deed that there was no con- sideration given, when there is an express consideration upon the deed."^* § 1388. Declaration of Use prevents a resulting one. — And although there be no consideration expressed, if the use is expressly declared, and it covers the entire estate, there will be no resulting use.^ § 1389. Uses only result to the Original Owner of the estate out of which they are raised. And when they do result or arise by implication, they are of the same character with the estate which the owner had in the land. Thus if two joint- tenants so create an estate that the use results to them, it is to them as joint-tenants ; or if one of two grantors have a rever- sion, and another the life-estate on which the reversion depends and a use results, it is to them in the same character and quality. Or if A and B join in conveying B's land, and a use results, it is to B alone.* * Note. — Though a conveyance would be good at law if made for a valuable coneideratiou to the extent of a farthing only. And, after the statute, chancery could not have impeached its effect as a conveyance in transferring the legal es- tate ; yet, if it were not made for a substantial consideration, chancery would hold the bargainee to be a trustee of the bargainor, and compel him to convey the estate to the bargainor ; thus giving the practical effect of a resulting use by means of a decree in equity. Gilbert, Uses, Sugd. ed. Introd. Ixi ; 1 Spence, Eq. Jur. 467. 1 Tud. Lead. Cas. 258 ; Sand. Uses, 104 ; Barker v. Keat, 2 Mod. 249 ; Gilb. Uses, Sugd. ed. 230, n. ; Moore v. Bickham, 4 Binn. 1. 2 3 Wood, Conv. 285 ; Fisher v. Smith, F. Moore, 569 ; Wilt v. Franklin, 1 Binn. 518, per Tilghman, C. J. ; id. 519, per Yeates, J. It is necessary to state a valuable consideration to raise a use by bargain and sale ; but it is not necessary to state the amount. Okison v. Patterson, 1 Watts & S. 395. 3 Sprague v. Woods, 4 Watts & S. 192 ; Tippin v. Co.son, 4 Mod. 380 ; 1 Prest. E.st. 193 ; Graves v. Graves, 29 X. H. 129. * 1 Prest. Est. 195 ; Beckwith's case, 2 Rep. 58 ; 1 Cruise, Dig. 373. USES AFTER THE STATUTE OF USES. 405 § 1390. Uses limited as they •would result are void. — If a use is limited in terms after another use to the same effect as it would have resulted in favor of the grantor, the grantor is in of his old use, and such limitation is void. Thus if the limi- tation were to the use of one and his heirs, during the life of the grantor, to the use of the grantor's heirs generally after his death, his heirs would not take by purchase as remainder-men, but by descent as reversioners. And the distinction between this and a former proposition, where the limitation over was to the use of the heirs of the grantor's body, will be obvious upon reflection, since, in the latter case, the heirs take a contingent remainder, — a different estate from that of their ancestor. ^ And the same principle is applied to cases of devises to heirs at law. Independent of statutes upon this subject, devises to heirs of the same estates as tliey would have taken by descent were void, and the heirs took as heirs, and not as devisees or purchasers. But this is now altered in England by statute.^ So, upon the same principle, if one were to limit a use to his son and the heirs of his body, the son would take an estate tail as a purchaser ; but if there had been a limitation over of a use to his own heirs by way of remainder, his heirs would take this as a resulting use, and not as a remainder.^ § 1391. Presumption of resulting Use rebuttable. — The doc- trine of a resulting use rests upon the presumption of equity that the owner of land does not intend to part with the same without a consideration, in the absence of any evidence of such intention contained in the deed or instrument of conveyance. It may now be added that, like legal presumptions, this may be controlled by evidence that it was the intention of the grantor that the use should go with the legal estate. This evidence may be derived from circumstances or from positive evidence, and parol evidence is competent to establish such an intention. Thus, where A enfeoffed B upon condition that B should reconvey to A for life, with remainder to the oldest son 1 Shelley's case, 1 Rep. 95 ; Co. Lit. 22 b; Else v. Osborn, 1 P. Wms. 387 ; Fenwick v. Mitfortb, F. Moore, 285 ; Sand. Uses, 133 ; Watk. Conv. (White's ed. 1838) 172, n. ; Co. Lit. 22 b, in. 134 ; id. n. 135 ; Tijipin v. Coson, Carth. 273 ; Bedford's case, F. Moore, 720. 2 Wms. Real Prop. 181 ; 1 Jarm. Wills, 67 ; Stat. 3 & 4 Wm. lY. c. 106, § 3. 8 Bedford's case, F. Moore, 720 ; Co. Lit. 22 b ; Read v. Erington, Cro. Eliz. 321. 406 USES AFTER THE STATUTE OF USES. of A, it was held that no use resulted to A, but tliat the whole estate vested in B, as he could not otherwise convey an estate to A and to his son.^ § 1392. Parol Evidence to rebut resulting Use. — The seventh section of the statute of frauds, requiring declarations or crea- tions of trust or confidence, etc., to be in writing, applies to uses and trusts declared or raised in favor of persons other than the one declaring or creating them;^ and the statute ex- pressly excepts from its operation trusts or confidences which arise or result by the implication or construction of law. And accordingly, where the plaintiff set up a resulting trust, verbal evidence of his admission that the whole land was the defend- ant's, and that he had nothing to do with it, was held com- petent ;2 though, as heretofore stated, where there is a use declared by the instrument conveying the estate, it cannot be negatived or controlled by parol evidence.^ § 1393. No Use results if one expressed. — The law will not imply a use in favor of the grantor if the deed limits the estate to the use of the grantee, though it be made without any con- sideration.^ Nor will a use result to one man where another has paid the consideration for the conveyance.^ So, where the owner expressly limits a use to himself, it precludes the idea of his intending to reserve to himself a different use; and therefore the law will not raise one by implication which is inconsistent with the one so limited. Thus where one makes a feoffment to his own use for forty years, without limiting any other use, the effect will be to leave the inheritance in the 1 Winningtou's case, Jenkins, 253. 2 Capen v. Richardson, 7 Gray, 369 ; Walker v. Locke, 5 Cush. 90 ; Browne, Stat. Frauds, § 83 et seq. 3 Botsford V. Burr, 2 Johns. Ch. 405. * Lewis V. Lewis, 2 Rep. in Chanc. 77 ; Lewin, Trusts, 27 ; 1 Spence, Eq. Jur. 451, 511 ; St. John v. Benedict, 6 Johns. Ch. 116, 117. And for the general prin- ciple of proving or controlling the intention of a grantor as to a use resulting, etc., see Walker r. Walker, 2 Atk. 98 ; Lake v. Lake, Ambl. 127 ; Sand. Uses, 104 ; 1 Cruise, Dig. 375 ; 1 Spence, Eq. Jur. 511 ; Browne, Stat. Frauds, § 92 ; 3 Sugd. Vend. & P. Hamni. ed. 260 ; Roe d. Roach v. Popham, Dougl. 25 ; Boyd v. ISI'Lean, 1 Johns. Ch. 582 ; Peabody v. Tarhell, 2 Cu.sh. 232 ; Altham v. Anglesea, per Holt, G. J., 11 Mod. 210 ; Mass. Pub. Stat. c. 141, § 1 ; Tud. Lead. Cas. 258 ; Lamp- lughv. Lamplugh, 1 P. Wms. 112. 8 Graves v. Graves, 29 N. H. 129. 6 Capen v. Richardson, 7 Gray, 370. USES AFTER THE STATUTE OF USES. 407 feoffee, as otherwise the use I'or the forty years being expressly limited to the feoffor, if the remainder is his by implication or as a resulting use, it would be executed in him, and the term as a lesser estate would be merged in the fee, and thereby de- feat the feoffment in the feoffee altogether.^ So w'here the use limited by the feoffor in his own favor was for a term of years, with a remainder to take effect after his death, there would not be any use resulting or raised by implication in his favor for life, by reason of the express limitation for years.^ § 1394. Doctrine of Uses applied to Devises. — Thus far USes have been treated of as they relate to conveyances of land inter vivos. But though the statute of wills was not passed until the 32 Hen. VIII., estates created by will are governed by the rules derived from the statute of uses, the legal estate being trans- ferred to the use in the same mode as by the operation of that statute. Thus, if there were a devise simply to A to the use of B, or in trust for B, the statute would execute it at once in B.^ So a devise by a testator of his lands to his executor in trust for his brother and wife, that he should permit them to occupy the same during their lives, is an executed use for life in husband and wife.^ But if it had been to A and to his use, to the use of or in trust for B, it would be a use upon a use, and the legal estate would stop in A, but the equitable estate or trust would be in B.^ Whether the devise shall take effect as an executed use, or as a trust, depends upon the intention of the devisor, as expressed by the instrument creating the devise.^ If there is any active duty imposed upon the devisee of the legal estate, in carrying out the purposes of the devise in favor of the cestui que icse, which requires him to be vested with the legal estate, it becomes a trust in the first taker, and the cestui que use is, in modern language, a cestui que trust, the legal 1 1 Cruise, Dig. 376 ; Bedford's case, F. Moore, 720 ; Tud. Lead. Cas. 258 ; 1 Preat. Est. 195. 2 Adams v. Savage, 2 Salk. 679 ; Rawley v. Holland, 2 Eq. Cas. Abr. 753 ; 1 Prest. Est. 195 ; Sand. Uses, 142. 8 Tud. Lead. Cas. 268 ; Gilb. Uses, Sugd. ed. 356 ; Sand. Uses, 243 ; Co. Lit. 271 b, n. 231, § 3, pt. 5 ; 2 Jarm. Wills, 196. * Upham V. Varney, 15 N. H. 464. s 2 Jarm. Wills, 197. 8 Co. Lt. 271 b, n. 331, § 3, pt. 5 ; Sand. Uses, 242 ; Broughton v. Langley, 1 Lutw. 823 ; Bagshaw v. Spencer, 2 Atk. 576. 408 USES AFTER THE STATUTE OF USES. seisin and estate vesting in the trustee.^ In the cases supposed it makes no difference in the effect whether the word " use " or " trust " be used by the devisor in speaking of the equitable interest intended to be created.^ § 1395. No Resulting Use for Lack of Consideration. — The doc- trine of uses resulting to the one wiio creates them, where there is no consideration or express declaration of the use, does not apply to cases of devise ; for a devise always implies a con- sideration, and the use will always be in the devisee, unless the contrary appears in the devise itself, and that what is thereby given is not to be to the use of the devisee.^ § 1396. If Use fails it results. — But if a person be merely named as a devisee to uses, and the use fails, there will be a resulting use to the heirs of the devisor.* [And this is true where the use is void for illegality as a disposition in favor of persons or objects forbidden from taking, or in violation of the statutes of mortmain, or as tending to a perpetuity.^ How- ever, a void use will not cause a use to result to the devisor or his heirs where it is limited to take effect by way of shifting use, in derogation of a prior estate. Thus a use void as against perpetuities, limited to take effect by way of shifting use to defeat a prior estate in fee-simple, will not, upon the happening of the contingency, cause the use to result to the grantor, but will leave the prior fee-simple estate indefeasible.^] § 1397. How Uses may be destroyed or suspended. — Uses cannot be extinguished, destroyed, or suspended, if they have once been actually executed by the statute, since, by such ex- ecution, the union of the seisin and use has created a legal estate. But contingent uses may be extinguished or suspended. Thus if A makes a feoffment to the use of B and the wife he 1 Doe d. Booth v. Field, 2 Barn. & Ad. 564 ; Sand. Uses, 244 ; Tenny v. Moody, 3 Bing. 3 ; Doe d. Gratrex v. Homfray, 6 Ad. & E. 206 ; Tud. Lead. Cas. 268 ; Har- top's case, 1 Leon. 253 ; Upham v. Varney, 15 N. H. 467 ; Norton v. Leonard, 12 Pick. 152 ; Ayer v. Ayer, 16 Pick. 327 ; Branaan v. Stiles, 2 Pick. 460 ; Wood v. Wood, 5 Paige, 596. 2 Doe d. Terry v. Collier, 11 East, 377. 8 Gilb. Uses, 162 ; Sand. Uses, 242 ; Vernon's case, 4 Rep. 4 a ; 1 Lutw. 823 ; 1 Cruise, Dig. 378. * Hartop's case, 1 Leon. 254 ; Gilb. Uses, Sugd. ed. 486, note. 6 1 Perry on Trusts, § 160. 6 Brattle Square Church v. Grant, 3 Gray, 156. USES AFTER THE STATUTE OF USES. 409 shall marry, and the feoffees make a feoffment over before the marriage of B, the contingent use to the wife is gone ; the seisin that was to sustain it, and, by being united with it, was to give effect to the use, is no longer in the feoffee. The same would be the effect if the feoffee to use were disseised before the contingent use vested, with this difference, that, if the feoffee were to re-enter and regain the seisin, the old use would revive, so that, instead of being destroyed, it would only have been suspended. So if the feoffment be to the use of feoffor for life, remainder to the use of the heirs of J. S., and the feoffor die before J. S., the contingent remainder is lost for want of a particular estate to sustain it. So where the estate out of which the uses arise is gone, the uses are gone also ; as where a lease was made to A for life, to the use of B for life, and A dies, the estate in B is gone.^ This more naturally, perhaps, belongs to the subject of contingent remainders, though it may be stated that no conveyance under the statute of uses in this country, or by deeds authorized by statute here, has the effect to defeat contingent remainders. ^ § 1398. Importance of Uses in Conveyancing. — Enough has been shown in what has herein been said to justify an allusion to the importance of the doctrine of uses as applied to modern conveyances. The language of Mr. Preston upon the subject is, that " within the whole scope of that learning which is more particularly to be studied by the conveyancer, there is none more important to be known than that which concerns the doc- trine of uses ; for there are many things which may be done through the medium of a conveyance to uses, or under the statute of uses, without a conveyance, which cannot be accom- plished by a conveyance merely and simply at common law ; and consequently there are many occasions in which it is abso- lutely necessary to resort to the learning of uses in framing a conveyance, or for giving it effect." ^ § 1399. How Uses are prevented from resulting. — To prevent any inference of a resulting use in the grantor, it is usual to ac- 1 3 Wood, Conv. 296 ; Chudleigh's case, 1 Rep. 126. 2 Dennett v. Dennett, 40 N. H. 498 ; Gilb. Uses, Sugd. ed. 232, n., 312 ; 2 Sand. Uses, 54 ; Den d. Micheau i-. Crawford, 8 N. J. L. 107. 8 1 Prest. Abst. 311. See Cornish, Uses, 22, 23. 410 USES AFTER THE STATUTE OP USES. knowledge a consideration received on the part of the grantor ; and though, as ah-eady stated, it is competent to show by parol that a larger or smaller sum than that mentioned in the deed has been actually paid, it is not competent for the grantor, in the absence of fraud, to negative the receipt of such con- sideration as will give full effect to the deed as a conveyance.^ But if it is necessary in order to give effect to a deed, the grantee may show aliunde, that the relation of kindred or mar- riage existed between the grantor and grantee, although not mentioned in the deed, and although the consideration recited was a pecuniary one.'^ So, for the same reason, it is usual to declare a use in the deed in favor of the grantee and his heirs ; although, where the grantee named is both feoffee and cestui que use, the conveyance takes effect under and by virtue of the common law, and derives no validity as such from the statute of uses.^ § 1400. General Application of Uses in Conveyancing. — In few of the States are there any prescribed forms of deeds which it is necessary to follow in executing conveyances of lands. In a large proportion of them, the form is that of bargain and sale, though other forms which clearly indicate the intention of the grantor to pass the estate are held sufficient. In several of these States the forms of English conveyances of feoffment, bargain and sale, lease and release, and covenant to stand seised, are recognized by statute as modes in use; while the forms of attesting, acknowledging, and recording the same are prescribed by the same statute. In some of the States, the statute of uses has been adopted and recognized as a part of the common law. Such is the case in Massachusetts, Connecticut, New Hampshire, Alabama, and Rhode Island.^ Thus, in 1 3 Wood, Conv. 285 ; Gilb. Uses, 51 ; 1 Greenl. Ev. § 26, note 2 ; Sand. Uses, 47 ; Belden v. Sfi3'monr, 8 Conn. 313. 2 Gale V. Coburn, 18 Pick. 397 ; Brewer v. Hardy, 22 Pick. 376 ; Bryan v. Bradley, 16 Conn. 474. See contra, 2 Sand. Uses, 48. And see Gilb. Uses, Sugd. ed. 253. 8 1 Prest. Abst. 101 ; Wms. Real Prop. 132, 154 ; Belden v. Seymour, 8 Conn. 304. * Johnson v. Johnson, 7 Allen, 197 ; Bryan v. Bradley, 16 Conn. 483 ; Bell v. Scanimon, 15 I^. H. 394 ; Rollins v. Riley, 44 N. H. 11 ; Horton v. Sledge, 29 Ala. 496 ; Nightingale v. Hidden, 7 R. I. 132 ; Sprague v. Spragiie, 13 R. I. 701. USES AFTER THE STATUTE OF USES. 411 Nightingale v. Hidden,^ the deed was to S, habendum to him and his heirs, to and for the proper use, benefit, and behoof of E and her heirs, and it was held to create an executed estate in E. In others it has never been so recognized. In others still it has been expressly determined not to form a part of the common law ; while the statute of uses in some of the States is supplied by statutory enactments which contain in a declar- atory form substantially the modifications which had been introduced into the common law system of conveyances by means of uses, answering to springing and shifting uses, powers, and the like. Thus, in Michigan and Wisconsin, a deed to A, in trust for B, makes B the legal owner of the es- tate.2 With such a variety of forms and systems of convey- ances, it would be inexpedient to attempt to define, with any considerable degree of precision, how far uses are in force in each of these States. The most that will be attempted will be to state generally under what circumstances they have been recognized in some of the States, referring to the work of Mr. Thornton on Conveyances for authority, where other references are not specially made.^ In those States in which the use is executed in the cestui que use by statute, there is either an express re-enactment of the statute of uses,'^ or the statute of uses is expressly abolished, and provisions are made that all estates and interests in land are legal rights, that the right to possess the land and receive the rents, in law or equity, makes a legal ownership of the same quality as the beneficial interest, that a disposition of the land to one for the benefit of another vests no legal estate in the trustee, and that all estates held as executed uses are confirmed as legal estates, or similar provisions.^ 1 7 R. 1. 132. 2 Ready v. Kearsley, 14 Mich. 228; Riehl v. Bingenheiraer, 28 Wis. 84. 8 Foi' the extent to which uses are applied in the United States, see Hill, Trus- tees, Whart. ed. p. 230, note. * Illinois, Rev. Stat. 1899, p. 403, § 3; South Carolina, Rev. Stat. 1893, §§ 2089-2091 ; Missouri, Rev. Stat. 1899, § 4.589. 6 New York, Rev. Stat. 1896, p. 1795, §§ 45-49 ; Michigan, Annot. Stat. 1882, § 5563 et seq. ; Wisconsin, S. & B. Annot. Stat. 1889, § 2071 ; Minnesota, Stat. 1891, § 4003 ; New Jersey, Gen. Stat. 1896, p. 877, § 119 ; Delaware, Rev. Code, 1874, c. 83, § 1 ; Alabama, Code, 1896, § 1027 ; Indiana, Rev. Stnt. 1894, § 3403; Kansas, 2 Gen. Stat. 1897, p. 589, § 13 ; Georgia, Code, 1895, § 3157. 412 USES AFTER THE STATUTE OP USES. S 1401. "Where Resort has been had to the Doctrine of Uses, the parties, in undertaking to convey lands, have failed to follow the form in use in the State, or. have undertaken, by a form borrowed from the common law, to create an interest like a freehold infuturo, for instance, which could not be done by construing the conveyance as one deriving its validity from the common law, and resort has been had to the doctrine of uses in order to effectuate the intention of the parties.^ 1 2 Smith, Lead. Cas. 5th Am. ed. 463. For instance, if a deed does not contain words of grant, but may be valid as a covenant to stand seised, it will be so con- strued. Eysaman v. Eysaman, 24 Huu, 430. THEIR NATURE, DURATION, QUALITIES, AND INCIDENTS. 413 CHAPTER LYII. TRUSTS — THEIR NATURE, DURATION, QUALITIES, AND INCIDENTS. § 1402. Use and trust formerly alike. 1403. Principles of the statute of uses. 1404. How the modern trust was evolved. 1405. Trusts defined. 1406. When the statute failed to execute the seisin in the use. 1407. Tyrrel's Case — No use upon a use. 1408. How far trusts revocable. § 1402. Use and Trust formerly alike. — Although, as has been shown in the preceding chapter, the equitable or beneficial interest which one man had in land which in the eye of the common law belonged to another, was commonly called a use, it was also often called a trust, these being, in fact, convertible terms prior to the statute of 27 Hen. VHI. ; and the word "trust" is mentioned even in that statute, as well as " use." ^ These terms, however, were at that time understood to indicate equitable interests of somewhat different natures. If the interest was a permanent enjoyment of the benefit or profits of the land, separate from the possession, it was called a use. If it was for a temporary purpose, as the raising of a sum of money out of the land, it was a trust. And in this sense, though every use was a trust, not every trust was a use.^ § 1403. Principles of the Statute of Uses, — The rules which regulate trusts are based upon the principles of a refined moral duty between persons who stand in the relation of confidence to each other. The statute of 27 Hen. VIII. c. 10, has been pretty fully considered.^ It classes " trusts," " uses," and 1 2 Crabb, Real Prop. 512 ; 2 P,l. Com. 327 ; 1 Prest. Est. 184. 2 1 Prest. Est. 185 ; Cornish, U.ses, 14, 15; 1 Spence, Eq. Jur. 448, who dis- tinguishes them thus, — the one " an use or permanent trust," the other *' a tem- porary, special, or active trust." 3 Ante, § 1346 et seq. 414 TRUSTS. "confidences" in one category, and undertakes to apply the same remedy to all by uniting the legal with the equitable in- terest into a new legal estate. But it became apparent, upon applying this statute, that there were cases where this could not be done witliout defeating the obvious provisions of the trust, or extending the language of the statute beyond its necessary meaning. Where the use could not be thus executed, the legal estate was necessarily left as at common law. But equity, perceiving that to allow the holder of the legal estate to have the beneficial use of it was contrary to the intention of the parties, interposed to hold the tenant of the legal estate a trustee for him who was entitled to the beneficial use of it; and the consequence was, tliat, while one party had a right to the seisin and possession of land as at common law, equity regarded him for whose use the land was designed as the rightful owner thereof, and in this way there early grew up a double ownership of lands thus situated, the legal and the equitable one. § 1404. How the Modern Trust was evolved. — Thus it was held, that as a use was executed by uniting the seisin which was in one with the use which was in another, and as there could be no seisin, properly speaking, of a use, if there were a feoffment to A, to the use of B, to the use of C, the seisin in A passed to and was executed to the use in B. But as only a use was given to B, it was held that the seisin which the statute united to the use in B did not pass from him to C, and it consequently left the seisin in B, as the legal owner. In order, however, to give effect to the second part of the limita- tion, equity came in and required B to hold the estate to the use of C, and called this a trust. So it often happened that lands were given to one to do certain acts in respect to the same for the benefit of a third person, a feme covert, for instance, which required him to hold the seisin and legal es- tate. In such a case, inasmuch as to execute the use in the one for whose benefit the land was granted or devised would defeat the purposes of such grant or devise, the seisin was held to remain in the grantee or devisee, while equity required him to perform the duty or confidence imposed upon him under the name of a trust. So, where land is given to A for a THEIU NATURE, DURATION, QUALITIES, AND INCIDENTS. 415 term of years in trust for B, it is a technical trust, since the statute of uses only executes a use in cases where a seisin is united with it.^ And whei-e the grant was to A and his heirs to receive the rents and pay them over to B and his lieirs, it was held to be a trust wliich descended to the heirs of B, and that B could not convey the land.^ § 1405. Trusts defined. — A trust may, therefore, he defined as a use, which, though lawful in itself, the statute does not operate upon to execute in the cestui que use, whereby the legal estate is in one, wliile another has a right to a beneficial inter- est in and out of the same,^ the first being termed a trustee, the other a cestui que trust. Thus, for illustration, a grant or devise to A in trust for B, or to permit B to take the rents and profits, would be an executed use in B, unless B was a feme covert, when, in order to carry out the grantor's or devisor's intent, it would be a trust, or use not executed.^ If, oil the contrary, the trust is created for some special purpose, as to convey the estate, or exercise control over it, such as paying the taxes, or making repairs upon it, and tlie like, it is a trust which the statute will not execute, and of course it leaves the legal estate in the trustee.^ And if there be no determinate person who has a right to claim as a beneficiary, it lacks an essential element of a trust, because a court of equity has no means of knowing how to cause it to be executed 1 2 Sharsw. Bl. Com. 335-337 ami notes ; 2 Crabb, Real Prop. 507 ; 1 Prest. Est. 190 ; Cornish, Uses, 27-29 ; 1 Spence, Eq. Jur. 466 ; id. 490 ; 1 Sand. Uses, 266 ; Hopkins v. Hopkins, per Lord Hardwicke, 1 Atk. 591 ; 1 Eq. Cas. Abr. 383 ; Fletch. Trust. 27 ; Ashhurst v. Given, 5 Watts & S. 327. 2 Harlow v. Cowdrey, 109 Mass. 183. 3 Tud. Lead. Cas. 276 ; 2 BL Com. 336 ; 1 Prest. Est. 186 ; 1 Spence, Eq. Jur. 494 ; Fisher v. Fields, 10 Johns. 505. * 1 Prest. Est. 190 ; Tud. Lead. Cas. 268 ; Doe d. Terry v. Collier, 11 East, 377 ; Co. Lit. 290 b, n. 249, § 6 ; 1 Eq. Cas. Abr. 382 ; Harton v. Harton. 7 T. R. 653 ; Jones V. Bush, 4 Harring. 1 ; Ayer v. Ayer, 16 Pick. 327, 330 ; Doe d. Leicester v. Biggs, 2 Taunt. 109. But it has been held that where by statute a married woman is allowed to hold property as her own and free from her husband's control, such a use is executed by the statute. Sutton v. Aiken, 62 Ga. 733 ; Banks v. Sloat, 69 Ga. 330. But if the married woman does not have absolute right of disposal, the trust remains. Richardson v. Stodder, 100 Mass. 528. 5 2 Crabb, Real Prop. 509 ; Wms. Real Prop. 134 ; 1 Eq. Cas. Abr. 383 ; Hill, Trust. 232 ; 2 Sharsw. Bl. Com. 335, n. ; Willis, Trust. 21 ; Doe d. Gratrex v. Homfray, 6 Ad. & E. 206. See post, § 1412. 416 TRUSTS. or enforced. But this rule, though a general one, will be found hereafter to be essentially qualified in respect to what are called charitable trusts, which are regulated by the statute of Elizabeth.i § 140G. When the Statute failed to execute the Seisin in the Use. — [We have seen that the statute failed to destroy the equitable estate where a use was limited on a use, where an active duty with respect to the estate was cast upon the feoffee to uses, where the cestui que use was a married woman, and where the estate conveyed to uses was a chattel interest un- supported by a seisin.2] Another class of uses which were held not to come within the statute, and were consequently seized upon by courts of equity in building up the system of trusts, were those which were implied. Thus where land was purchased in the name of one, but the consideration was paid by another, which was explained in a former chapter.^ And to these were soon added cases where the legal title to land was in one by fraud or accident, and the equitable claim to the samp was in another ; as where, for instance, one, who had been intrusted with money by another to purchase for him an estate, should take the deed in his own name.* § 1407. Tyrrei's Case. — One case deserves an extended notice from tlie important part it had in establishing the sys- tem of trusts. It arose about twenty years after the act of 27 Hen. VIII. under these circumstances, and was decided in a court of common law.^ Jane Tyrrel, for a valuable considera- tion paid by her son and heir, bargained and sold her land to him, habendum to her use during life, and after her death to the use of himself and the heirs of his body, and for default of such heirs, to the use of his own right heirs. As this con- veyance was by bargain and sale, it could only take efTect, in tlie first place, by raising a use in favor of the son to which the law united the mother's seisin, and executed the use in the son, Xow, to give effect to these several estates by the statute of uses, the operation must have been this : when the seisin 1 Levyy. Levj', 33 N. Y. lOi, 107, 122. 2 Ante, §§ 1404, 1405. 8 Ante, § 1332. * 1 Spence, Eii. Jur. 452, 467. ^ Tyrrei's case, Dyer, 155. THEIR NATURE, DURATION, QUALITIES, AND INCIDENTS. 417 had reached the son, there was a use then waiting in J. T., and the seisin in the son must pass back again to J. T. to be executed in her for life. And at her death a use was then m esse in the son, wliich would draw the seisin and execute the use in him. But the court repudiated the idea of the seisin shifting about in this manner; for if, when once executed, it could pass to a third person, it might to fifty in succession ; and besides, the statute speaks of being " seised of lands and tenements " to the use of another. In an opinion of three lines, they held that, the use being executed in the son, the uses in the hahendiun, so far as they could be affected by the statute, were void, use ne j^oit estre engendre de use, etc. And the doctrine has become an elementary one in this country, where it has not been changed by statute. Thus it is assumed that a use limited upon a use is not executed or affected by the statute of uses. The second is valid as a trust.^ " By this means, a statute made upon great consideration, introduced in a solemn and pompous manner, by this strict construction, has had no other effect than to add, at most, three words to a conveyance." ^ § 1408. How far Trusts revocable. — As trusts are more' commonly than otherwise voluntary dispositions of estates by those creating them, questions have arisen whether and how far it is competent for one who grants an estate in trust to revoke the grant, or essentially change the objects, purposes,, or details of the trust as declared thereby. And to this extent the question seems to have been settled. If the trust is created for the benefit of the grantor as well as the cestui que trust, as, for instance, by a debtor for the benefit of his creditors, and, before any of his creditors have assented or become parties to the conveyance, he convey the estate upon other and different trusts, it would be too late for the creditors under the first deed to interpose to prevent the execution of the new trusts.^ But if a deed of trust be actually executed and delivered to the trustee, creating a trust in favor of another, as, for example, 1 Croxall V. Shererd, 5 Wall. 282. See Wyman v. Brown, 50 Me. l.')?. 2 Hopkins v. Hopkins, 1 Atk. 591. In Tyrrel's case the son became trustee of J. T. for life. 1 Prest. Abst. 142. But by statute now in many States a use upon a use gives a legal estate to the last cestui que use. 8 "Wallwyn v. Coutts, 3 Meriv. 707 ; Bill v. Cureton, 2 Mylne & Keeue, 511. VOL. n. — 27 418 TRUSTS. for a future husband or wife, or for children to be born, it would hot be competent for the grantor or settlor to revoke such trust, nor would a court of equity require it to be done, even though such settlement might as to creditors be void under the statute of Elizabeth. Thus, where A, being in debt and unmarried, conveyed his estate to B in trust, to pay and apply the income for the benefit of the grantor during his life, and after his death for the benefit of his children if he left any, he then being unmarried, and he subsequently married and undertook to revoke this trust, and applied to the court to aid him in so doing, the court held it to be a trust by which he was bound, and dismissed his bill.^ And a like doctrine, that such a trust is irrevocable, was established in respect to stock trans- ferred to trustees by a single woman, in trust for herself till married, then in trust for her husband if she married, and after his death in trust for her children, if any.^ But in a case in New Jersey, where there was a voluntary deed of trust exe- cuted under the supposition tliat it was revocable and intended to be so, but no such clause was inserted in the deed, the court, under the circumstances that it was unadvised and improvi- dent, set the deed aside, although the infant children of the grantor were beneficiaries under the deed. And they cite several modern cases from the English reports, where the old rule on the subject is said to have been relaxed.^ But in a later case in Connecticut, where one voluntarily deposited money in trust for an object of his bounty, it was held to be irrevocable.* So where a husband and father, who was intem- perate in his habits, in order to guard against these, made a trust-deed, 1st, to pay his debts; 2d, to pay him a certain sum annually ; 3d, to pay the surplus income to his Avife ; 4th, after his death to sell the estate, and pay the proceeds to persons named. Having reformed, he applied to the court to set aside the deed ; but they held it was irrevocable.^ And it may be said to be now established as a general rule, except where the 1 Petre v. Espinasse, 2 Mylne & Keene, 496. - Bill V. Cureton, 2 Mylne & Keene, 503.. See also Story, Eq. § 371. 3 Garn.sey v. Mundy, 24 N. J. Eq. 243. Among the cases cited were Hall v. Hall, L. R. 8 Ch. App. 430 ; Forshaw v. Welsby, 30 Beav. 243. * Minor v. Rogers, 40 Conn. 512. ^ Patter's Appeal, 59 Penn. St. 9. THEIR NATURE, DURATION, QUALITIES, AND INCIDENTS. 419 rights of creditors are concerned, that after a complete legal title under a trust has vested in the trustee, the trust cannot be revoked by the grantor,^ unless he has reserved such a power,2 Qj. omitted it by mistake,^ or unless a court of equity, looking at the provisions of the trust, can say that such an omission is unconscionable or improvident, which they are particularly likely to do in case of trusts created without con- sideration by married women, or minors.* Although the trust may be irrevocable as to the grantor, yet whenever all other parties interested in the trust, both directly and remotely or contingently, trustee and cestui, agree to end the trust, a court of equity may decree a distribution of the trust property, although the trust may not have reached the limit of time set by the settlor, nor have accomplished all the objects set forth in its provisions,'^ or a new trust may be substituted by agreement of all parties interested in place of the original trust.^ 1 Fellows's App., 93 Penn. St. 470; Hill, Trustees, *82. 2 Gaither v. Williams, 57 Md. 625. 2 Aylswoith V. Whitcomb, 12 R. I. 298. And it is there held that if no inten- tion appears on the part of the grantor to create an irrevocable trust, a court of equity will consider the omission in itself a mistake, and will remedy the omis- sion by holding the deed revocable. Ibid. * Gibbes v. N. York Life Ins. & Tr. Co., 67 How, Pr. 207. 5 Culbertson's App., 76 Penn. St. 145 ; Perry, Trusts, §§ 274, 386, 920. But it is held in Pennsylvania that a married woman cannot consent to the termination of a trust created for her benefit. Twining's App., 97 Penn. St. 36. * Sherburne v. Morse, 132 Mass. 469. 420 TRUSTS. CHAPTER LVIII. TRUSTS — CLASSIFICATION OF TRUSTS. § 1409. Trusts simple or special. 1410. Simple trusts. 1411. Distinction between executed uses and trusts. 1412. Active trusts. 1413. Trusts for the protection of mamed women. 1414. Liberal construction in favor of uses to married women. 1415. Cases implying active trusts. 1416. Active trusts changing to passive. 1417. Special trusts distinguished from powers. 1418. Implied trusts. 141 9-. Trust never implied where one expressed. 1420. Resulting trusts distinguished from constructive. 1421. Resulting trusts and resulting uses differentiated. 1422. Classification of resulting trusts. 1423. Instances of resulting trusts. 1424. Resulting trusts founded on rebuttable presumption. 1425. Purchase effected with wife's money. 1426. Consideration furnished by one, title taken in name of another. 1427. Parol evidence competent to rebut presumption. 1428. Resulting trust may be established by parol. 1429. Statutory restrictions of the doctrine of resulting trusts. 1430. Constructive trusts. 1431. Ground on which constructive trusts rest. 1432. Purchase by one standing in fiduciary relation. 1433. Trustee may buy from cestui que trust. 1434. Land purchased with trust funds. 1435. Purchase of trust property in fraud of trust. 1436. Statute of frauds no defence against fraud. 1437. Devise obtained by promise to hold in trust. 1438. Trusts of terms for years. 1439. Executory and executed trusts. 1440. The estate of the trustee. 1441. The interest of the cestui que trust. 1442. Both estates governed by same general rules. 1443. Pule in Shelley's ease. 1444. Rules of descent, transmission, etc. 1445. How far equitable estates are liable for debts. 1446. May the donor exempt the equitable estate from liability for debts ' 1447. Rule against perpetuities applied. 1448. Statute of limitations as applied to express trusts. 1449. Statute of limitations — Constructive and resulting trusts. CLASSIFICATION OP TRUSTS. 421 § 1450. If the trustee of an express trust repudiate. 1451. Trusts not subject to rules growing out of tenure. 1452. Receipt of profits ecjuivalent to seisin. 1453. " Heirs " in limiting estates of inheritance. 1454. Legal estate measured by the equitable. 1455. Rules for determining quantity of trustee's estate. 1456. Equitable estate of vendee. 1457. E(;[uitable conversion — Personalty treated as realty. 1458. Trusts to preserve contingent remainders. 1459. Dower and curtesy. § 1409. Trusts simple or special. — The first classification of trusts is into general, simple or passive, and special or active trusts.^ § 1410. Simple Trusts. — A simple trust is one where prop- erty is vested in one upon trust for another, the nature of the trust not being expressed, but left to the construction of the law. The legal estate merely is vested in the trustee : the cestui que trust, being in equity entitled to the rents and profits, has power to dispose of the lands, and to call upon the trustee to execute the requisite conveyances.^ For the reason, therefore, already stated (§ 1482), if a grant were made to A in trust for an unincorporated association, incapable of taking and hold- ing lands, the grant will be void for want of a known compe- tent cestui que trust.^ An instance of this class of trusts is a limitation to A and his heirs to the use of B and his heirs, to the use of or in trust for C and his heirs. B takes the legal estate, but becomes trustee for C. Among the trusts included under this class were those heretofore in use to preserve con- tingent remainders, which will be explained hereafter.* § 1411. Distinction bet'wreen Executed Uses and Trusts. — But it is often difficult to determine, in a given case, whether the estate limited is a legal or equitable one, as may be illus- trated by the following adjudged cases. A testator devised unto and to the use of A, to the use of or in trust for B. It was held, that inasmuch as here was a use in A, there could not be a second use in B, and tlierefore that A took the legal 1 As to charitable trusts, see post, § 4439. 2 Lewin, Trusts (2d ed.), 23; Tud. Lead. Gas. 274 ; Wms. Real Prop. 135 ; 2 Flint. Real Prop. 786. 3 Germ. Land Assoc, v. Scholler, 10 Minn. 331. * See post, § 1458. 422 TRUSTS. estate, and B an equitable one only.^ But where the testator devised to A and his heirs to the use of B and his heirs, or in trust for B and his heirs, to receive the rents, etc., as it made no difference whether the word " use " or " trust " were used,2 it was held that the legal estate was in B by force of the statute.^ The question in those cases is. In whom is the first use, or to whom is it limited? Ihus, if an estate be limited to A and his heirs, to the use of A and his heirs, in trust for or to the use of B and his heirs, the first use being to A, the grantee, and there being a use or benefit over in favor of B, A is held to be a trustee, and B the cestui que trust. But if it had been to A and his heirs, to the use or in trust for B and his heirs, A would, in fact, have taken nothing, unless he was, by the terms of his deed, charged with some certain duty in regard to the estate, which required him to retain the seisin.* The legal estate, in such cases, vests in him to whom, by the words of the instrument, the use is first lim- ited.^ Though where a devise has been made to A and his heirs, to the use of B and his heirs, whether or not the estate is to be executed in B may depend upon a construction of the whole will as to the intent of the testator in that respect,^ § 1412. Active Trusts. — The question whether the person named as trustee shall be construed to have the legal estate, or it shall be transmitted through him to the cestui que trust, is often determined by the fact that he is charged with duties in respect to the property which require that the legal estate should be vested in him ; as, for instance, to dispose of the property, 1 Wms. Real Prop. 134, where the illustration is a feoffment instead of a devise, the same rule being applicable to each. Moore v. Shultz, 13 Penn. St. 98 ; 2 Jarm. Wills, 198 ; Tud. Lead. Cas. 268 ; Doe d. Lloyd v. Passingham, 6 Barn. & C. 305 ; 1 Sugd. Pow. (3d Am. ed.) 168-171 ; 2 Smith, Lead. Cas. (5th Am. ed.) 454. 2 Doe d. Terry v. Collier, 11 East, 377 ; 2 Jarm. Wills, 199 ; Kay v. Seates, 37 Penn. St. 37 ; Webster v. Cooper, U How. 488. 3 Broughton v. Langley, Ld. Raym. 873; Right v. Smith, 12 East, 455 ; Doe d. Noble V. Bolton, 11 Ad. & E. 188 ; Ramsay v. Marsh, 2 M'Cord, 252; Welch v. Allen, 21 Wend. 147 ; Jenney ?'. Laurens, 1 Spear, 356. * Price V. Sisson, 13 N. J. E(^. 173, 174 ; 2 Bl. Com. 336 ; Hill, Trust. 230, 235 ; Hayes v. Tabor, 41 N. H. 521, 525, 526; Turley v. Massengill, 7 Lea, 353; Bur- nett V. Burnett, 17 S. C. 545. 5 Att'y-Gen. v. Scott, Cas. temp. Talb. 138 ; Croxall i'. Shererd, 5 Wnll. 282. ^ Gregory v. Henderson, 4 Taunt. 775, by Gibbs, C. J.; Harton v. Harton, 7 T. R. 650, by Lord Kenyon, C. J. CLASSIFICATION OF TRUSTS. 423 or pay the rents over to the cestui que trust, or apply them in the maintenance of the cestui que trust,^ or to manage the estate as the trustee should think most for the interest of the cestui que trust, and the like,''^ or to pay the rents to a married woman, or to suffer her to receive the rents, or pay annuities out of the rents, etc." And thou^^h it was, for a while, main- tained as law in Pennsylvania, that a use will be held to be executed in a cestui que trust, where he is to have the beneficial interest in the estate except in cases of femes covert and others under a disability,^ it is now established, that if a trust is created, in which the trustee has an active duty to perform, it does not become an executed use, but is properly a trust, and vests in the trustee ; thus in effect overruling, to this extent, the cases of Kuhn v. Newman and Kay v. Scates, cited ante.^ 1 2 Jarm. Wills, 198 ; Posey v. Cook, 1 Hill (S. C), 413 ; Moi-ton v. Barrett, 22 Me. 257 ; Norton v. Leonard, 12 Pick. 152, 158; Newhall y. Wheeler, 7 Mass. 189 ; Cooper v. Cooper, 26 N. J. Eq. 121 ; Schley v. Lyon, 6 Ga. 530 ; Hooberry v. Harding, 10 Lea, 392 ; 1 Prest. Est. 185 ; Co. Lit. 290 b, n. 249, § 6; Tud. Lead. Cas. 268, 269 : Plenty v. West, 6 C. B. 201 ; 1 Cruise, Dig. 385 ; Doe d. Gratre.\ v. Homfray, 6 Ad. & E. 206 ; Doe d. Leicester v. Biggs, 2 Taunt. 109. 2 Bass V. Scott, 2 Leigh, 356 ; Exeter New Par. v. Odiorne, 1 N. H. 232. 3 2 Flint. Keal Prop. 768 ; 2 Jarm. Wills, 204 ; 1 Spence, Eq. Jur. 466 ; Pullen V. Rianhard, 1 Whart. 514, 520 ; Lancaster v. Dolan, 1 Rawle, 231 ; Nevil v. Saunders, 1 Vern. 415 ; Jones v. Say and Seal, 1 Eq. Cas. Abr. 383 ; Hartou v. Harton, supra. * Kuhn V. Newman, 26 Penn. St. 227 ; Kay v. Scates, 37 Penn. St. 36. 6 Barnett's App., 46 Penn. St. 398, per Read, J., who cites in support of his doctrine Cleveland v. Hallett, 6 Gush. 403 ; Fay v. Taft, 12 Cush. 448 ; Birlet's Est., 32 L. J. Ch. 439 ; Pullen v. Rianhard, 1 Whart. 521 ; Smithwick v. Jordan, 15 Mass. 113. The decisions in the cases of Kiihn v. Newman and Kay v. Scates, supra, were influenced by the hostility of the Pennsylvania courts to trusts, — a feeling which has since been declared to have passed away. Snyder's Ajip., 92 Penn. St. 507. And Barnett's App., supra, is spoken of in a later case ( Larp's Ajip., 75 Penn. St. 119) as a return to the former doctrine of trusts, the court say- ing, in addition, that since that time — i. e , the decision of Barnett's case — it has been their endeavor to maintain trusts upon their true foundation, as a means of preserving the dominion of the donor over his own property for his reasonable purposes, unless where a clear public policy strikes down the trust as no longer useful or as an unnecessary clog to the title. And the later cases are to the same eflfect. Earp's App., 75 Penn. St. 119 ; Ashhurst's App., id. 464 ; Osborne v. Soley, 81* Penn. St. 312 ; Briggs v. Davis, id. 470 ; Williams' Est., 13 Phil. 325. A trust to collect rents, income, and profits, pay charges, taxes, and repairs, and pay the net income to a life-tenant, is an active trust. Livesey's App., 106 Penn. St. 201. If the trust is to do as above and after the death of the life-tenant, to preserve the 424 TRUSTS. § 1413. Trusts for the Protection of Married Women, as when land is given to A for the sole use and benefit of B, a married woman, are regarded as active trusts, although no active duty is imposed on the trustee, and he is merely to i)ermit the woman to receive the rents and profits. A court of equity con- siders it a sufficient object to keep the estate of the wife free from the interference and control of the husband.^ The dura- tion as well as the character of such a trust is determined by the coverture, the trust arising upon coverture and extend- ing throughout the coverture.^ The woman to whose use the estate is given must be either married or in contemplation of marriage at the time the trust is created. If she is not, the statute executes the use in her, and her subsequent marriage does not raise a trust.^ And it is held in Pennsylvania that the woman must be either married or in contemplation of mar- riage at the time the will is executed, or the trust will be void.^ Upon the death of the husband the trust terminates, and the legal estate is then executed in the wife by the statute of uses. The trust,^ being once so terminated, does not revive upon a second marriage.^ [This was the former English rule in all cases, and it is now the settled law in Pennsylvania ; but at present, in England, and, generally, in this country, " whether the separate use shall continue through several mar- corpus of the estate and pay it over to the children of tlie life-tenant when they reach tlie age of twenty-one, or if there are no children, to pay it over on the death of the life-tenant to certain charities, it is an active trust. Ibid. Trusts to collect rents, etc., and preserve the corpus of the estate for a remainder, are active. Ibid.; Forcey's App., 106 Penn. St. 508. See also Carney v. Byron, 19 R. I. 283 ; s. c. 36 Atl. Rep. 5. Where, however, the trust is only to permit the cestuis to receive the rents and profits, it is passive, and executed by the statute. Warner v. Sprigg, 62 JId. 14. 1 Perry, Trusts, § 310 ; Horton v. Horton, 7 T. R. 652. 2 Steacy v. Rice, 27 Penn. St. 75 ; Bush's App., 33 Penn. St. 85 ; Gamble's Est., 13 Phila. 198 ; Hartley's Est., Ibid. 392 ; Lines v. Darden, 5 Fla. 78 ; Ayer r. Ayer, 16 Pick. 327 ; Richardson v. Stodder, 100 Mass. 528. 3 Ncale's App., 104 Penn. St. 214; Phil. Safe Dep. & Ins. Co.'s App., 93 Penn. St. 209; Snyder's App., 92 Penn. St. 504; McBride i;. Smith, 54 Penn. St. 250. 4 Neale's App., 104 Penn. St. 214. 6 Richardson v. Stodder, 100 Mass. 530 ; Mosely v. Roberts, 51 Mo. 282 ; Megarglee v. Naglee, 64 Penn. St. 216. 6 Freyvogle v. Hughes, 56 Penn. St. 228; Rea v. Cassel, 13 Phila. 159 ; Wells V. McCall, 64 Penn. St. 207. CLASSIFICATION OF TRUSTS. 425 riages is wholly a matter of intention." "If the property is clearly settled to the separate use of a woman, such separate use will attach so often as she may be married." ^] Where a feme covert is entitled to hold real estate as if she were sole, a trust solely for her protection during coverture would find no reason for its existence ; and it has been held that in such a case the title to the land vests at once in the cestui, provided the trust is a dry trust, and there is no remainder to protect.^ But if the statute which enables married women to take and hold property to their separate use does not give them an ab- solute right of disposal of their estate, the trust remains dur- ing coverture.^ Although a trust for the benefit of a woman may be bad, on account of her not being married or in contem- plation of marriage, yet if there are active duties imposed upon the trustees, such as to collect and receive the rents and pay them over to the cestui, or to keep the corpus of the estate intact for remainder-men, the trust may be supported on that ground.* § 1414. Liberal Construction in Favor of Uses to Married "Women. — Though the proposition may be regarded as an al- most universal one, that a grant or devise to one to permit a married woman to receive the rents for her separate use is con- sidered as creating a trust in her favor, and not an executed use, and courts are always liberal in construing such a limita- tion a trust,^ yet it may be controlled by the language of the grant or devise. Thus where the conveyance of property was to A, in trust for B, who was a feme covert, " with power to said B to dispose of the same by an instrument in the nature of a last will," there was held to be an executed use in B, and not an existing trust.^ § 1415. Cases implying Active Trusts. — To these may be 1 Perry, Trusts, § 653. 2 Sutton V. Aiken, 62 Ga. 733 ; Banks v. Sloat, 69 Ga. 330. 8 Richardson v. Stodder, 100 Mass. 528. As to the limitation which will create an equitable separate estate in a married woman, see ante, § 320. * Ashhurst's App., 75 Penn. St. 464; Earp's App., id. 119 ; Ogden's App., 70 Peun. St. 336 ; Yariiall's App., id. 336; Fry's Est, 11 Phila. 305. 5 Harton v. Harton, 7 T. R. 650 ; 1 Cruise, Dig. 385 ; Nevil v. Saunders, 1 Vern. 415 ; Magniac v. Thompson, 1 Baldw. C. C. 344 ; 2 Flint. Real Prop. 796 ; Williman v. Holmes, 4 Rich. Eq. 495. <5 Ware v. Richardson, 3 Md. 505. 426 TRUSTS. added cases where the trustee named is to permit the beneficial owner to receive the 7iet rents and profits, implying that some- thing is to be paid by the trustee himself out of these, the balance only going to the cestui que trust} or where tlie trustee is to sell and convert real estate into money ,'^ or where the duty is imposed of having the rents and profits accumulate, requir- ing care and diligence on the part of the person named as trustee.^ § 14:16. Active Trusts changing to passive. — There are, more- over, some trusts which partake successively of the character of active trusts, in respect to which the trustee is clothed with the legal estate, and of executed uses where it passes to the one beneficially intended in it, according to the nature and terms of the limitation. Thus it may be incumbent upon the trustee to dispose of the rents in a particular manner during the life of A B, and then the trust may so change as to be executed in a new cestui que trusts A trust of this character would be a devise to trustees and their heirs to receive the rents and support the devisor's son till he was twenty-one, and then over to him. In such a case it was held that the legal estate vested in the trustees till the son was of age and then was executed in him.^ The doctrine applied in these cases is, that although the limitation of the estate to one be such as would be executed in another as the cestui que trust, if the trustee named was to be merely passive, yet, if he have an active duty to do wliich requires him to hold the legal estate for a term of time, he will be considered as seised thereof ac- cordingly, so l(jng as it shall be necessary, and it will then be executed in the cestui que trusty upon the principle that trus- 1 Tud. Lead Cas. 269. 2 Cooper «. Whitney, 3 Hill (N. Y.), 95. 3 2 Flint. Real Prop. 802. * Co. Lit. 290 6, 249, § 6 ; Ackland v. Lutley, 9 Ad. & E. 879 ; Tud. Lead. Cas. 270 ; Blaker v. Anscombe, 1 Bos. & P. N. R. 25 ; Robinson v. Grey, 9 East, 1. * 2 Flint. Real Prop. 802. Another instance is that of a trust for a married woman during coverture, in which case the trustee retains the legal title during coverture, but upon the death of the husband the legal title vests in the woman ; or upon her death, in the persons next entitled to the estate. Richardson v. Stodder, 100 Mass. 528. See ante, § 1412. In such a case the nature of the estate is not changed, but its character ; if the limitation is of a fee, it is an equitable fee in the wife during the husband's life, and after his death a legal fee. Ibid. 6 Tud. Lead. Cas. 269, 270 ; Doe d. Booth i;. Field, 2 Baru. & Ad. 564 ; Doe CLASSIFICATION OF TRUSTS. 427 tees only take so much of the legal estate as the purposes of the trust require. ^ § 1417. Special Trusts distinguished from Powers. — Among special trusts is the common one of a devise of lands to one's executors to sell, where the devisees take an estate in trust in the same. And this is noticed here to distinguish it from the case where the devise is that the executors shall sell, or that the lands shall be sold by them. In the latter case, the execu- tors take no estate, but merely a power of sale. And this dis- tinction has been recognized since the time of Henry VI.^ Thus where trustees were by will authorized to sell, etc., with full power to execute any deed or deeds, etc., it was held, that the legal estate did not vest in the trustees.^ This distinction is sometimes very nice ; but it may be laid down, pei'haps as a general rule, that where a trust is not expressly created by a will, and the duty to be performed may be sufl&ciently accom- plished by the exercise of a bare power or authority, a bare power or authority only will be construed to be created."* § 1418. Implied Trusts, or those Created by operation of law, have already been mentioned as existing independently of the statute, and as therefore not to be executed in the cestuis que trust by force of it. Trusts thus created are distinguished as implied^ resulting, and constructive; though it may be re- marked in passing, that courts of law do not notice resulting trusts.^ Nor are resulting trusts ever executed by the statute, or united with the legal estate so as to attach the seisin to them. They are in this respect excepted out of the statute.^ § 1419. Trust never implied -where one expressed. — It should also be borne in mind, that the law never implies a trust where there is an express one, such as is declared by word or writing.^ (1. Cadogan v. Ewart, 7 Ad. & E. 636; 1 Prest. Abst. 143, 144; Upliam v. Variiey, 15 N. H. 462 ; Doe d. Woodcock v. Bartlirop, 5 Taunt. 382 ; Adams v. Adams, 6 Q. B. 860. 1 Barker v. Greenwood, 4 Mees. & W. 421 ; Adams v. Adams, 6 Q. B. 860. 2 2 Jarm. Wills, Perk. ed. 206 ; Co. Lit. 113 a; Sugd, Pow. 106; 1 GreenL Cruise, Dig. 384, note; Fletch. Trust. 13 ; Howell v. Barnes, Cro. Car. 382. » Fay V. Fay, 1 Gush. 93. * Fletch. Trust. 11. 5 Thomson v. Peake, 7 Ricli. 353. 6 Nightingale v. Hidden, 7 K. I. 121. '' 1 Spence, Eq. Jur. 496; Denuison v. Goehring, 7 Penn. St. 175; Co. Lit. 290 b, note 249, § 8. 428 TRUSTS, It was accordingly held, that where A, without any considera- tion actually paid, made a deed to B, no trust would result to the grantor if a consideration was acknowledged, or a use was limited in the deed.^ It is, however, competent to show by proper evidence the creation of an express trust in such a case. The proof must not be by parol, for such a case is within the statute of frauds.^ § 1420. Resulting Trusts distinguished from constructive. — Implied or resulting trusts must consequently arise from the act of some party having the beneficial ownership of the prop- erty, while all other trusts which are not express are con- sidered as constructive, and are, as a general rule, imposed in invitum upon the person who is held to be a trustee.^ It is hardly necessary to add, what must be a natural inference from the preceding propositions, that no estate can arise by implication to defeat an estate which is expressly limited in terms.^ Among the cases illustrating what is meant by an im- plied trust is that of a testator directing his estate to be sold for the payment of his debts, or charging it with such payment, and the like. In such a case, the law fastens a trust upon the estate ; and whoever takes it by descent or devise is bound as trustee to do whatever is necessary to accomplish the purposes declared by the testator.^ Another case would be the familiar one of a sale of land^ where the vendor, until the deed is exe- cuted and delivered, becomes the trustee of the purchaser,^ though the latter cannot exercise the rights of a cestui que trust until he shall have paid the whole agreed purchase-money.'' Nor, since the statute of frauds, can such a trust be regarded or enforced, unless the agreement be in writing, and signed by the party to be charged.^ But where a father completed a pur- chase made by his son by paying the balance of the purchase- 1 Seepos<, § 1426. 2 Osborn v. Osborn, 29 N. J. Eq. 385. 3 1 Spence, Eq. Jur. 509. * 1 Prest. Est. 191. s 1 Spence, Eq. Jur. 509 ; Lewin, Trusts (2d ed.), 66. 6 "Willis, Trust. 56 ; Jackson d. Seclye v. Morse, 16 Johns. 197 ; Bowie v. Bern,', 3 Md. Ch. 359. ' Wms. Real Prop. 137 ; Connor v. Lewis, 16 Me. 268 ; 1 Spence, Eq. Jur. 509 ; 2 Flint. Real Prop. 775. 8 2 Flint. Real Prop. 800, 814 ; Harris v. Barnett, 3 Gratt. 339. CLASSIFICATION OF TRUSTS. 429 money, and took a deed to liimself, he was held thereby to substitute himself as trustee in place of the vendor, and to be chargeable as such to the son.^ § 1421. Resulting Trusts and Resulting Uses differentiated. — What has previously been said in respect to the character and creation of resulting uses ^ applies equally to resulting trusts ^ with one exception, where equity applies a more liberal rule to raise a resulting trust than it did to raise a use. Thus, in the case of a bargain and sale, the estate would pass to the bar- gainee if the consideration of a farthing were paid, inasmuch as the use thereby raised in his favor is executed in him ; in such a case, however, the consideration not being anything sub- stantial, equity would interpose and hold the bargainee, though the owner of the legal estate, as a trustee of the bargainor, and would compel him to reconvcy the estate to the bargainor.'^ To create a resulting trust, the money of the cestui que trust must be used in purchasing the estate in which the trust is claimed.^ But any substantial consideration paid by the gran- tee would be sufficient to repel the presumption of a resulting trust.s § 1422. Classification of Resulting Trusts. — Lord Hardwicke mentions three classes of resulting trusts, or such as arise by implication of law, and do not come within the statute of frauds, which requires trusts to be manifested in writing : 1st, where the estate is purchased in the name of one, but the money is paid by another ; 2d, where the trust is declared in part only, the residue remaining undisposed of ; and 3d, in certain cases of fraud. And parol evidence is competent to show collateral facts from which a trust may be held to result." § 1423. Instances of Resulting Trusts. — If there be a devise or grant of an estate in trust, the income thereof to be applied to certain purposes, and there proves to be a surplus unex- 1 Magee v. Magee, 1 Penn. St. 405. 2 Ante, §§ 1335, 1385 et seq. 3 1 Spence, Eq. Jur. 510 ; Willis, Trust. 57, 58. * 1 Spence, Eq. Jur. 467 ; Willis, Trust. 57, note ; Hill, Trust. 107 ; ante, § 1387. 6 Remington v. Campbell, 60 111. 516. « Orton V. Ktiab, 3 Wis. 576. 7 Lloyd V. Si)illet, 2 Atk. 148, 150 ; 1 Greenl. Ev. § 266 : Trapnall v. Brown, 19 Ark. 39; Fleming v. McHale, 47 111. 282. 430 TRUSTS. hausted after such an application, the devisee or grantee will be held in equity as trustee thereof under a resulting trust, for the heir of the devisor or of the grantor, unless it is expressly- given to the trustee.! So where land was devised to A in trust for a certain church so long as it continued, upon its ceasing to exist it was held that the trustee thereafter held it by a resulting trust for the benefit of the testator's heirs.^ So where there is a devise of the income of an estate to one when he shall be twenty-one years of age, the intermediate income will result to the heir of the devisor.^ So if a conveyance be to one in trust for such trusts as the grantor shall appoint, and he fails to appoint any, or appoints for only a part of the estate, a trust will result to the grantor of the income of such estate, in whole or in part.* It may, therefore, be laid down as a general proposition, that it is not necessary, in order to create a trust estate, that a cestui que trust should be named who is in being ; and in the case cited it was held to be sufficient, if the person designated as the cestui que trust were in existence, and could be distinguished at the death of the testator. The trust may be for the accumulation of the rents and profits of an estate for the benefit of one who may either come into exist- ence during the life of the trustee, or be in existence at the time of his death.^ Upon a like principle, if the purpose for which an estate is directed to be sold fails, the power of sale is in equity considered as revoked as to all that remains unsold, and that is deemed to belong to the grantor or the heir of the devisor.^ And if the estate is conveyed for a particular pur- pose or on particular trusts, which, by accident or otherwise, cannot take effect, a trust will result in favor of the original owner.'^ 1 2 Flint. Real Prop. 804. '^ Easterbrooks v. Tillinghast, 5 Gray, 17. 8 2 Flint. Keal Prop. 804. * 1 Cruise, Dig. 394, 396 ; Lloyd v. Spillet, 2 Atk. 150 ; Willis, Trust. 58. 6 Ashhurst v. Given, 5 Watts & S. 327. 6 Willis, Trust. 59; 2 Flint. Real Prop. 801. 7 Willi,9, Trust. 58 ; 1 Cruise, Dig. 375. Thus, where an estate is given in trust for certain charities which are too indefinite to allow the trust to be carried out, and the trust therefore fails, the legal title remains in the trustee, but a trust results to the heirs of the grantor or testator. Nichols v. Allen, 130 Mass. 212 ; Olliff r. Wells, id. 221 ; Robinson v. McDiarmid, 87 N. C. 464. CLASSIFICATION OF TRUSTS, 431 § 1424. Resulting Trusts founded on Rebuttable Presumption. — In cases where a conveyance is made by one to his wife or child, if unadvanced, no trust will ordinarily result to the donor, though none be declared in the deed.^ So the purchase of land in the name of the wife or child raises no resulting trust in favor of the purchaser.^ So where a father purchased land in his children's name, and had a deed made to them, the law presumed it to be an advancement, and not a trust resulting in his favor.^ So the presumption is very strong that no trust re- sults to the husband in a question between a wife and the heirs of the husband.* But the ordinary inference of law may be 1 1 Cruise, Dig. 394, 402 ; Kingdon v. Bridges, 2 Vern. 67 ; Livingston v. Liv- ingston, 2 Johns. Ch. .537; Douglass v. Brice, 4 Rich. Eq. 322; Welton v. Divine, 20 Barb. 9 ; Willis, Trust. 61 ; 1 Spence, Eq. Jur. 511 ; 2 Flint. Real Prop. 813 ; Smith V. Strahan, 16 Tex. 314. 2 Stevens v. Stevens, 70 Me. 92 ; Wheeler v. Kidder, 105 Penn. St. 270 ; Scibold V. Christman, 75 Mo. 308 ; Edgerly v. Edgerly, 112 Mass. 175 ; Cormerais v. Wesselhoeft, 114 Mass. 550 ; Bennett v. Camp, 54 Vt. 40; Bent v. Bent, 44 Vt. 555 ; Milner v. Freeman, 40 Ark. 62; James v. James, 41 Ark. 301 ; Bartlettr. Bartlett, 13 Neb. 456 ; s. c. 15 Neh. 593 ; Gray v. Gray, 13 Neb. 454. 3 Cecil ;;. Beaver, 28 Iowa, 241; McGinness v. Edgell, 39 Iowa, 419. Such cases turn entirely upon the intention of the parties to the transaction, taken in connection with the rebuttable presumption, that when a husband buys land and takes a deed in the name of his wife, or a parent takes a deed in the name of a child, it is done with the intention of making a gift to the person in whose name the deed is taken. Read v. Huff, 40 N. J. Eq. 229 ; Stevens v. Stevens, 70 Me. 92. This presumption rests upon the relationship of the parties, and is not appli- cable to other cases, and is rebutted by proof of the actual intention of the paities as shown by their words or acts. Buren v. Buren, 79 Mo. 538 ; Seibold v. Christ- man, 75 Mo. 308 ; Harden i;. Darwin, 66 Ala. 55 ; Wormouth v. Johnson, 58 Cal. 621 ; Lorentz v. Lorentz, 14 W. Va. 809. The proof which shall rebut the presumption of a gift or settlement to the wife or child in such cases must be of facts antecedent to or contemporaneous with the purchase, or else immediately afterwards, so as to be in fact part of the same transaction. Proof of facts later than that will not rebut the presumption. Read v. Huff, 40 N. J. Eq. 229. If it is so rebutted, the case stands upon precisely the same footing as any case where one pays the purchase-money for a deed of land, and the deed is taken in the name of another, thus creating a resultant trust in favor of the one who pays the money, and is subject to the rules given below ; see posf, § 1426 et seq. Milner v. Freeman, 40 Ark. 62; Taylor v. Mosely, 57 Miss. 471 ; Flynt v. Hubbard, id. 544. The presumption of an advancement is not rebutted by proof that the husband entered into possession of the land, improved it, paid the taxes, and occupied it with his wife as a homestead, as his own property, and that when she made a will she did not assume to dispose of it. Maxwell v. Maxwell, 109 111. 588. * Sunderland v. Sunderland, 19 Iowa, 328. See also Shaw v. Read, 47 Penn. St. 432 TRUSTS. rebutted by parol evidence of what was done or intended at the time of the purchase being made.^ Thus, in one case the hus- band was allowed to show that, when he had the deed made in the name of his wife, he supposed that at her death it would come to him, and a trust was lield to result accordingly .^ In another case the husband alleged that the whole consideration was paid by him, and that the deed was made to his wife witli-' out his knowledge or direction and against his will, and that when he found it had been so made he was informed that it would not affect his rights in the property, but that after her death the whole property would come to him ; and these allegations were held sufficient on demurrer to establish a resulting trust for him.^ But where the husband paid part of the purchase- money for land conveyed to the wife, but such payment was subsequent to the purchase, and formed no part of the original transaction, no trust resulted in his favor.* And where he paid a part of the purchase out of the moneys of the wife, and a part out of his own, and took the deed in the name of a stranger, a trust was held to result to him and his wife, pro rata, according to the amount paid by each.^ This presumption of an advance- ment to the wife is much strengthened by the influence of the rule of the common law that a wife cannot be trustee for her 103 ; Murpliy v. Nathans, 46 Penn. St. 508, where the mother took a deed in her daughter's name. Cairns v. Colburn, 104 Mass. 274. 1 Bent V. Bent, 44 Vt. 555 ; Milner v. Freeman, 40 Ark. 62 ; Bartlett v. Bart- lett, 15 Neb. 593; s. c. 13 Neb. 456; Bureu v. Buren, 79 Mo. 538 ; Seibold v. Christman, 75 Mo. 308; Harden v. Darwin, 66 Ala. 55; Wormouth i'. Johnson, 58 Cal. 621 ; Lorentz v. Lorentz, 14 W. Va. 809. Of course, if the deed is taken in the wife's name, for the purpose of defrauding creditors, the conveyance is void as against them. This rule, however, belongs to a different branch of the law, and will not be here discussed. See Bartlett v. Bartlett, 15 Neb. 593; s. c. 13 id. 456 ; Eastham v. Roundtree, 56 Tex. 110. 2 Dickinson v. Davis, 43 N. H. 647 ; Wallace v. Bowen, 28 Vt. 638. See also Mutual Fire Ins. Go. v. Deale, 18 Md. 26; Pembroke v. Allenstown, 21 N. H. 107 ; Milner v. Freeman, 40 Ark. 62. 8 Gogherty v. Bennett, 37 N. J. Eq. 87. And a similar decision was given where the deed was made in the wife's name against the husband's will and with- out his knowledge. Persons v. Persons, 25 N. J. Eq. 250. So where the husband gave the wife money to buy land, the title to be taken in his name, and she took it in their joint names. Higgins v. Higgins, 14 Abb, N. Cas. 13. * Francestown v. Deering, 41 N. U. 442. » Hall V. Young, 37 N. H. 134. CLASSIFICATION OF TRUSTS. 433 husband.^ But as married women have been gradually individ- ualized and have become capable of acting in many respects as if unmarried, this rule has been abrogated, and, as has been shown above, such transactions are open to explanation, so as to get at the real intention of the parties.^ A like presumption of an advancement prevails where a grandfather purchases in the name of a grandchild.'^ But whether a trust results or not in favor of a father who purchases land in the name of a son, is a question of intention which may be proved by parol, if it do not contradict the terms of a deed, and the evidence relate to what was contemporaneous with the purchase.* The law in such cases presumes in favor of an advancement, subject, how- ever, to be controlled by proof.^ Where a father paid partly out of his daughter's funds, and partly out of his own, taking the deed to himself, but charged what he had paid as an advancement, it was held to create a resulting trust in favor of his daughter.^ So where a fatiier, for the purpose of making an advancement to a daughter, a feme covert^ purchased land, and had the deed made to her husband, he agreeing to hold it for her, it was held to create a trust in her favor.'^ 1 Kingdon v. Bridges, 2 Vern. 67; Jenoks v. Alexander, 11 Paige, 619 ; Alex- ander V. Warrance, 17 Mo. 228 ; 1 Cruise, Dig. 402 ; Story, Eii- Jur. § 1204. 2 Tebbets v. Tilton, 31 N. H. 273 ; Rankin v. Harper, 23 Mo. 578 ; Eddy v. Baldwin, id. 588; Guthrie v. Gardner, 19 Wend. 414. It is now generally held that a wife may be considered a trustee for her husband. See cases supra ; Gogherty V. Bennett, 37 N. J. Eq. 87 ; Smith v. Strahan, 16 Te.x. 314 ; Seibold v. Chiist- man, 75 Mo. 308 ; Mass. Pub. St. c. 147, § 5 ; Sawyer's App., 16 N. H. 460 ; post, § 1486. 3 Co. Lit. 290 h, note 249, § 8 ; Willis, Trust. 51. * Benson v. Matsdorf, 11 Johns. 91 ; Baker v. Vining, 30 Me. 121 ; Shepherd V. White, 10 Tex. 72 ; Co. Lit. 290-6, note 249, § 8 ; Rankin v. Harper, 23 Mo. 579; Shepherds. White, 11 Tex. 346. 5 Livingston v. Livingston, 2 Johns. Ch. 539, 540 ; Gee v. Gee, 32 Miss. 190 ; Smith V. Strahan, 16 Tex. 314 ; Milner v. Freeman, 40 Ark. 62. There is no such jiresumption of an advancement where a child purchases land and takes the deed in the name of a parent. Such a case is prima facie a case of resulting trust. Howell V. Howell, 15 N. J. Eq. 77 ; Johnson v. Anderson, 7 Baxt. 251 ; Cramer v. Hoose, 93 lU. 503. So it has been held that if a son gets his mother to buy land for liim, and he pays for it, but the deed is taken in her name, there is a resulting trust in his favor, and the fact that she paid the taxes on the laud for several years does not destroy the trust. Van Syckle i;. Kline, 34 N. J. Eq. 332. 6 Beck V. Graybill, 28 Penn. St. 66. 7 Peitfer v. Lytle, 58 Penn. St. 389, 391. And this is true where only a part of VOL. 11. — 28 434 TRUSTS. § 1425. Purchase effected with Wife's Money. — A class of cases somewhat connected with the foregoing, is where a hus- band has bought land with his wife's money and taken the deed in his own name. At common law, and until lately in the United States, no trust could arise, since the wife's money was the husband's money, and when he reduced it into his possession by taking it to buy the land, he was only using his own money, and no trust resulted.^ At the present day in most of the United States, a married woman is allowed to hold as her separate estate such property as she had before marriage, or as comes to her by request or gift, or is earned by her dur- ing marriage. Consequently the courts of such States have held that if the husband uses this separate estate of the wife to buy land for her and takes the deed in his own name, a trust results in her favor.^ If a part only of the purchase-money is paid by the wife and the rest by the husband, the wife has a resulting trust in proportion to the amount paid by her,^ and she takes this, not jointly with her husband, but as a separate interest in the land.* The important point in establishing such a trust is to show that the money used in buying the land was the separate property of the wife.^ This may be done by show- ing that she obtained it by bequest or inheritance, or in other ways.^ The proof on this point must be clear and convincing, especially where the result of establishing such a trust would be to deprive the husband's creditors of the land.'^ In some the purchase-money is advanced by the wife's father. Lewis v. Montg. Building, etc. Assoc, 70 Ala. 276. 1 Westerfield v. Kimmer, 82 Ind. 365 ; Waldrou v. Sandars, 85 Ind. 270. Unless perhaps where the title was fraudulently taken by the husband. Tracy v. Kelley, 52 Ind. 5Sf: 2 Rupp's App., 100 Penn. St. 531 ; Peiffer v. Lytle, 58 id. 386; Thomas v. Standiford, 49 Md. 181 ; Hayward v. Cain, 110 Mass. 273; Goldsberry v. Gentry, 92 Ind. 193 ; Boyer v. Libbey, 88 Ind. 235 ; Milner v. Hyland, 77 Ind. 458 ; I.often V. Witboard, 92 111. 461 ; Moss v. Moss, 95 111. 449 ; Parker v. Coop, 60 Tex. Ill ; English v. Law, 27 Kan. 242; Roy v. McPherson, 11 Neb. 197. But if the money is not her separate estate, the common law rule applies, and no trust results. Moilrell v. Riddle, 82 Mo. 31. 3 Rupp's App., 100 Penn. St. 531. * Hayward v. Cain, 110 Mass. 273. 6 Crutcher v. Taylor, 66 Ala. 217 ; Joyce v. Haines, 33 JST. J. Eq. 99. ® Rupp's App., supra; Westerfield?;. Kimmer, 82 Ind. 365 ; Radcliff v. Rad- ford, 96 Ind. 482. 7 Thomas v. Standiford, 49 Md. 181 ; Besson v. Eveland, 26 N. J. Eq. 472 ; CLASSIFICATION OF TRUSTS. 435 States, as will be shown hereafter,^ no trust results from the payment of the purchase-money where the deed is taken in another's name, unless it is done without the knowledge and consent of the person who paid the money. In these States the same rule applies to the case of purchase by the husband with the wife's money .^ And in any case, the fact that the deed was made to the husband without the wife's knowledge or against her will, strengthens the case.^ When such a trust is once established, the fact that the wife takes a judgment or a^ promissory note for the money, does not convert her to a mere creditor of the husband ; * but if the money was originally loaned to the husband on his own account, the transaction would not create a resulting trust.^ The trust binds all who take the land by inheritance from the husband ^ and any pur- chaser who has notice of the trust ; but a purchaser who pays a valuable consideration for the land and has no notice of the trust, holds the land discharged of the trust.' The proceeds of the sale, however, if they can be identified, or land taken in exchange, are subject to the trust in the hands of the husband, or any one who takes them with notice of the trust. ^ If the wife allows the husband to use the land for many years and to represent it as his, she cannot assert the trust against his creditors,^ and the trust is barred by her general release after separation. ^'^ Tilford V. Torrey, 53 Ala. 120 ; Hyden v. Hyden, 6 Baxt. 406 ; Page v. Gillen- tiue, 6 Lea, 240. 1 Post, §§ 1429, 1507. 2 Bibb V. Smith, 12 Heisk. 728 ; Loften v. Witboard, 92 lU. 461. In Indiana, if the deed is taken in the husband's name, with the knowledge of the wife, it vests the legal title at once in the wife. Milner v. Hyland, 77 Ind. 462. 8 Riipp's App., 100 Penn. St. 531 ; Fillman v. Divers, 31 Penn. St. 429 ; Eng- lish V. Law, 27 Kan. 242 ; Roy v. McPherson, 11 Neb. 197. * Rupp's App., supra ; Fillman v. Divers, supra. 6 Humes v. Scruggs, 94 U. S. 22. 8 Derry v. Derry, 74 Ind. 560. ' Rupp's App., supra; Catherwood v. Watson, 65 Ind. 576; Westerfield v. Kimmer, 82 Ind. 365 ; McCaskill f. Lathrop, 63 Ga. 96. * Rupp's App., supra; Walker v. Ellidge, 65 Ala, 51. 9 Besson v. Eveland, 26 N. J. Eq. 468 ; Roy v. McPherson, 11 Neb. 197. As to the law in Mississippi regarding creditors of the husband, see Myers v. Little, 60 Miss. 203. w Moss V. Moss, 95 111. 449. 436 TRUSTS. § 1426. Consideration furnished by one, Title taken in Name of another. — J>y far the most numerous class of cases, where the doctrine of resulting trusts has been sought to be applied, are those where the purchase-money for the conveyance of lands has been paid in part or in whole by one man, and the title-deed taken in the name of another.^ The cases cited below are but a sample of those which are scattered through the books illustrating the application of this doctrine.^ If A buys land with his own money, or gives his note and takes a deed to B, it is held that a trust results to A.^ If one pays only a part of the purchase-money, and another another part, but the definite proportion cannot be fixed, no trust will result. But if the proportion of the money paid by the cestui que trust can be ascertained, a trust in that proportion will be declared in his favor.'* If the fact of the payment being made by the one who claims to be the cestui que trust appears upon the deed itself, no other declaration of the trust is requisite. If it do not so appear, the proof that the payment was actually made ^ Such trusts, as has been before said, are not within the statute of frauds, and need not be in writing in order to be valid. Barrows v. Bohan, 4] Conn. 278 ; Burleigh v. White, 64 Me. 23 ; Murry v. Sell, 23 W. Va. 475 ; Billings v. Clinton, 6 Rich. (S. C.) 90 ; Smith v. Pattou, 12 W. Va. 541 ; Kane v. O'Conners, 78 Va. 76. And see aiite, § 1422 ; McNamarai>. Garrity, 106 111. 384 ; Scheererr. Scheerer, 109 111. 11. 2 Lyford v. Thurston, 16 N. H. 406 ; Farrington v. Barr, 36 N. H. 89 ; Turner (•. Eford, 5 Jones, Eq. 106 ; N. Y. Bank v. Gary, 39 N. J. Eq. 25 ; Philbrook v. Delano, 29 Me. 410 ; Brown v. Dwelley, 45 Me. 52 ; McLenan v. Sullivan, 13 Iowa, 521, 525 ; Freeman v. Russell, 40 Ark. 56 ; Chadwick v. Felt, 35 Penn. St. 305 ; Kelley !;. Jenuess, 50 Me. 464 ; Sunderland v. Sunderland, 19 Iowa, 328 ; Lips- comb V. Nichols, 6 Col. 290 ; McDonald v. McDonald, 24 Ind. 68 ; Carter v. Montgomery, 2 Tenn. Ch. 216 ; Perkins v. Nichols, 11 Allen, 545 ; Hutchins v. Heywood, 50 N. H. 491. So if a director buys land with the money of the com- pany, and takes the deed in his own name, he holds in trust for the company. Mich. Air L. Ry. Co. v. Mellen, 44 Mich. 321. 3 Howell V. Howell, 15 N. J. 77 ; Millard v. Hathawa.y, 27 Cal. 139 ; Hunt v. Friedman, 63 Cal. 510; Baumgartnerv. Guessfeld, 38 Mo. 36; Lipscomb v. Nichols, 6 Col. 290. As to the law of New York, see post, § 1507. * McKeown v. McKeown, 33 N. J. Eq. 384 ; Barrows v. Bohan, 41 Conn. 278 ; Burleigh v. White, 64 Me. 23 ; Murry v. Sell, 23 W. Va. 475 ; Billings v. Clinton, 6 Rich. (S. C.) 90; McNamara v. Garrity, 106 111. 384; Lipscomb v. Nichols, 6 Col. 290 ; Sanders v. Steele, 124 Ala. 415 ; s. c. 26 So. Rep. 882. If the pur- chase is made by a trustee, partly with trust funds, he must at his peril show what part was his own, or a trust will result to the cestui in all the land. Watson V. Thompson, 12 R. I. 470. CLASSIFICATION OP TRUSTS. 437 must be clcar,^ and letters written after the purcliase was made may be competent and sufficient to establish the trust. The same rule, as above stated, applies where the deed is taken in the name of the purchaser himself and another person.^ If one make a voluntary deed to another, acknowledging con- sideration, or declaring a use therein, it is conclusive against any implied trust ; ^ but if there be a consideration actually paid by a third person, he would not be estopped by the re- citals in the deed from showing the facts, and thereby raising a trust in his favor.* But merely signing a note as surety with a purchaser would raise no trust in the surety's favor, although he may have to pay the debt.^ So where A bought land and paid for it, and had the deed made to B upon his agreement to repay the money at a future time, no trust was raised in favor of A. The intention of the parties to the transaction was, that B, and not A, should be the beneficial owner.^ And in many of the States the law does not allow a trust to result in favor of one paying tlie purchase-money, if the deed is taken 1 Burleigh v. White, 64 Me. 23; Billings v. Clinton, 6 Rich. (S. C.) 90; Smith V. Patton, 12 W. Va. 541 ; U. S. Bank v. Carrington, 7 Leigh, 581 ; Miller V. Blose, 30 Gratt. 751 ; Parker v. Snyder, 31 N. J. Eq. 169. This species of trust is not regarded with favor by the courts of equity, on account of its tendency to unsettle titles to land. Midnier v. Midmer, 26 N. J. Eq. 299 ; Cutler v. Tuttle, 4 C. E. Green, 560 ; Boyd v. McLean, 1 Johns. Ch. 590 ; Lench v. Lench, 10 Ves. 517. If such a trust is proved, it may be lost by delay or laches on the part of the cestui que trust in asserting his claim. Midmer v. Midmer, supra. 2 Barron v. Barron, 24 Vt. 375 ; 2 Fonbl. Eq. 118 ; Wallace v. Duffield, 2Serg. & R. 521 ; Ensley v. Balentine, 4 Humph. 233 ; 1 Spence, Eq. Jur. 511; 2 Flint. Real Prop. 811 ; Crop v. Norton, 2 Atk. 75 ; Baker v. Vining, 30 Me. 121 ; Willis, Trust. 60, 107; 1 Cruise, Dig. 391 ; Williams v. Hollingsworth, 1 Strobh. Eq. 103 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Harper v. Phelps, 21 Conn. 257 ; Mc- Gowan v. McGowan, 14 Gray, 119 ; Sayre v. Townsend, 15 Wend. 647 ; Perry v. McHcnry, 13 111. 227 ; Smith v. Strahan, 16 Tex. 314 ; White v. Carpenter, 2 Paige, 238 ; MacGregor v. Gardner, 14 Iowa, 343 ; Seymour v. Freer, 8 Wall. 216 ; Burleigh v. White, 64 Me. 23. 3 Gould V. Lynde, 114 Mass. 366 ; Connor v. Follansbee, 59 N. H. 124 ; Jackson V. Cleveland, 15 Mich. 102 ; Shafter v. Huntington, 53 Mich. 310 ; Graves v. Graves, 29 jST. H. 129 ; Van der Volgen v. Gates, 9 N. Y. 219; Farrington v. Barr, 36 N. H. 86. * Blodgett V. Hildreth, 103 Mass. 487 ; Hogan v. Jaques, 19 N. J. Eq. 126; Botsford V. Burr, 2 Johns. Ch. 408 ; Linsley v. Sinclair, 24 Mich. 380 ; Jackson v. Cleveland, 15 Mich. 102. 5 Hopkinson v. Dnmas, 42 N. H. 301 ; Gee v. Gee, 32 Miss. 190. 6 McCue V. Gallagher, 23 Cal. 53. 438 TRUSTS. in another's name, if there is no fraud in the transaction.^ And if A makes the purchase, and B pays a definite part or portion of the purcliase-money, intending thereby to secure an interest in the land, a trust will result in that proportion in favor of B.^ Of course in order to create a resulting trust by the payment of money, it must appear that the money belonged to the cestui que trust, or had been advanced to him as his own by way of loan.^ A resulting trust, also, may arise, though there be only a bond given for the deed.* And where one, having no title to the same, conveyed an estate by quitclaim, with covenants for further assurance, and afterwards acquired a title to the same, it was held that he thereby became trustee for his grantee.^ But where one of two joint-purchasers upon credit pays the whole debt, it does not raise a resulting trust in his favor.^ In carrying out the doctrine above stated, it has been held, that the payment which raises a resulting trust must be part of the transaction, and relate to the time when the purchase was made. Any subsequent application or advance of the funds of another than the purchaser towards paying the purchase- money will not raise a resulting trust.'^ And while the fact 1 Post, § 1429 ; Everett v. Everett, 48 N. Y. 218 ; Mitchell v. Skinner, 17 Kan. 563. 2 Purdy V. Purdy, 3 Md. C'h. 547 ; Pierce v. Pierce, 7 B. Mon. 433 ; Shoemaker V. Smith, 11 Humph. 81 ; Franklin v. McEntyre, 23 111. 91 ; Hidden v. Jordan, 21 Cal. 92 ; Bayle.s v. Baxter, 22 Cal. 578 ; Green v. Dnimmond, 31 Md. 71. 3 Getman v. Getman, 1 Barb. C'h. 499 ; Pegues v. Pegues, 5 Ired. Eq. 418 ; Olive V. Dougherty, 3 Greene (Iowa), 371 ; Sullivan v. McLenans, 2 Iowa, 442. * Williams v. Brown, 14 111. 200. 5 Hope V. Stone, 10 Minn. 141. 6 Brooks V. Fowle, 14 jST. H. 248. ■ Alexander v. Tanis, 13 111. 221 ; Perry v. McHenry, id. 227 ; Buck v. Swazey, 35 Me. 41 ; Gee v. Gee, 2 Sneed, 395 ; Whiting v. Gould, 2 Wis. 552 ; Kelly v. Johnson, 28 Mo. 249 ; Howell v. Howell, 15 N. J. Eq. 78 ; Green v. Drummond, supra ; Niver v. Crane, 98 N. Y. 40 ; Midnier v. Midnier, 26 N. J. Eq. 299 ; Bur- leigh V. White, 64 Me. 23 ; Miller v. Blose, 30 Gratt. 744 ; Duval v. ilarshall, 30 Ark. 230. So if a guardian uses the money of his ward in making improvements upon land which he already owns, no trust results, since the trust must arise, if at all, at the time of the conveyance of the land. Cross's App., 97 Penn. St. 471 ; Coles V. Allen, 64 Ala. 98. So where one entered into a valid contract for the pur- chase of a piece of land, and acquired a complete equitable title and entered into possession, the fact that before the legal title to the land was conveyed to him, money belonging to the estate of a deceased person who had never claimed any interest in the land was applied to the payment of part of the purchase-money still due, was held not sufficient to create a resulting trust. Bickel's App., 86 Penn. CLASSIFICATION OF TRUSTS. 439 from which the law raises the trust may be shown by the sub- sequent admissions of the supposed trustee, no subsequent agreement, if orally made, can create a trnst.^ Nor will a trust be allowed to result so as to intervene and defeat prior or superior equities.^ So where three bought and paid for land, and the deed was taken by two, witli a parol agreement with the third that he should have wood from the same during life, no resulting trust arose in his favor, since the deed was according to the agreement of the parties.^ And where A sold land to B upon a parol agreement to support A for life, and after his death to pay a sum of money, it was held not to raise a resulting trust in favor of A.* If an agent fraudulently pur- chase land for himself with his principal's money, he will be held as trustee therefor.^ And it is stated generally, that, in order to create a resulting trust, there must either be a fraud: in obtaining the title, or a payment of the purchase-money by the one in whose favor it is raised at the time when the title is acquired. No subsequent payment will raise such a trust.^ A resulting trust must arise, if at all, at the time of the purchase, and not from any subsequent payment.'' But where a husband St. 204. In this case there was no evidence of any definite agreement under which the apj)lication of the money was made. It may be doubted whether the payment may not be made at any time prior to the legal conveyance, though after the pur- chaser has acquired an equitable title, provided he has not paid the vendor the purchase-money. Murry v. Sell, 23 W. Va. 475. 1 Blodgett V. Hildreth, 103 Mass. 487 ; Hogan v. Jaques, 19 N. J. Eq. 127. Where an implied trust has been create. Roberts, 18 Penn. St. 283. 6 Wms. Real Prop. 139. 8 Jloore V. Moore, 38 N. H. 382 ; Sturtevant v. Sturtevaiit, 20 N. Y. 39 ; Horn V. Keteltas, 46 N. Y. 610; Groesbeck v. Seeley, 13 Mich. 345 ; Calder v. Moran, 49 Mich. 14 ; Preston v. Casner, 104 111. 262 ; Wood v. Mulock, 48 X. Y. Super. Ct. 70 ; Green v. Gates, 73 Mo. 115 ; Page v. Gillentine, 6 Lea, 240 ; Campbell v. Brown, 129 Mass. 23. " Lloyd V. Lynch, 28 Penn. St. 419. HOW CREATED, DECLARED, AND TRANSFERRED. 4G5 trust, unless fraud, accident, or mistake be clearly alleged in respect to it, and proved.^ Beyond the citations Ijelow, it is not deemed necessary to add anything in this connection to what has already been said of implied, resulting, or construc- tive trusts, as they are excepted from, and not affected by, the statute of frauds ;2 unless it be, that whether a resulting trust has been discharged or not is the subject of parol proof.^ Tlie statute of frauds does not apply, moreover, to an executed trust. Thus, where one conveyed to his son a piece of land by a deed absolute upon its face, but which was proved to have been conveyed in trust to sell and divide the proceeds among all the children, and the trustee proceeded to pay over to the children money as a part execution of the trust, it was held that although no declaration of trust in writing was proved, and although the trust was therefore not enforceable as an obli- gation on the trustee, yet as he had paid the money under it, and thus executed the trust voluntarily, he could not recover back the money he had so paid.* If a piece of land is held under a parol trust, and the trustee sells the land, and holds the money received for it, and admits that he holds the money subject to the trust, it has been held that the trust is good as regards the money .^ And if one hold land upon a parol trust, his answer in a chancery suit admitting the trust is binding upon him as a declaration.^ § 1462. The Statute contemplates two Classes of Cases ; namely, the creation of new trusts, and the transfer of trusts already created and in existence. All that it requires as to either of these classes is a writing signed by the party creating or trans- ferring the trust, or the doing this by his last will. And al- though it is usual to adopt the same forms of conveyance by 1 Katliff y. Ellis, 2 Iowa, 59 ; Hall v. Young, 37 N. H. 134 ; 4 Am. Law Eev. 661. See ante, § 1428; Baitlett v. Bartlett, 14 Gray, 278 ; Blo(lj,'et v. Hildreth, 103 Mass. 486. 2 1 Spence, Eq. Jur. 497, 512 ; 1 Cruise, Dig. 391 ; Rhea v. Tucker, 56 Ala. 450; Ward v. Armstrong, 84 III. 151 ; Boskowitz v. Davis, 12Nev. 446. 3 Hopkinson v. Dumas, 42 N. H. 303 ; Farrington v. Barr, 36 N. H. 86. 4 Eaton V. Eaton, 35 N. J. L. 290 ; Moore v. Cottingham, 90 Ind. 239. 6 Calder v. Moran, 49 Mich. 14. 6 Myers v. Myers, 167 III. 52 ; s. c. 47 N. E. Rep. 309. VOL. II. —30 466 TRUSTS. deed in the matter of trusts as in the case of legal estates, such formality is not necessary .^ § 1463. WhatWriting is sufficient — It is not even necessary that the declaration should be made to the cestui que trust? And if made in his favor, though unknown to him, he may claim and enforce it, if he do so within a reasonable time.^ Nor is it necessary that what is written should be intended as a declaration or evidence of the trust, since the object of re- quiring a writing is not thereby to declare or create a trust, but to furnish the requisite and only competent evideyice of an existing fact; namely, that there is a trust and confidence in the trustee in respect to the estate, in favor of another, and which, but for the statute, might be otherwise proved.'* The evidence, however, should show, not only that there is this trust, but what the trust is.^ No particular form of words or expression is required to create a trust, provided the language used clearly indicates, on the part of the trustee, that the land is held by him in trust, or if the papers by which he holds it indicate the same.^ And in interpreting the words in which a trust is declared, courts adopt the same rules as in granting the legal estate. Thus a trust in favor of A, with no words of inheritance, would be for life only.'^ § 1464, Of the Transfer by a Cestui que Trust. — The same 1 1 Spence, Eq. Jur. 506 ; Wms. Real Prop. 140 ; Willis, Trust. 47 ; Sand. Uses, 342 ; Co. Lit. 290 b, note 249, § 14. 2 Barren v. Joy, 1 6 Mass. 221 : McClellan v. McClellan, 65 Me. 500 ; Browne, Stat. Frauds, § 99. 3 Ward V. Lewis, 4 Pick. 521-523 ; Berly v. Taylor, 5 Hill, 577 ; Shepherd v. M'Evers, 4 Johns. Ch. 136 ; Crocker v. Higgins, 7 Conn. 342; Scull v. Reeves, 3 N. J. Eq. 84 ; Bryant v. Russell, 23 Pick. 508, 520 ; Hill, Trust. 52, Wharton's note for American cases. 4 Forster v. Hale, 3 Ves. 707 ; Steere v. Steere, 5 Johns. Ch. 1 ; Lewin, Trusts, 30 ; 1 Cruise, Dig. 390 ; Unit. Soc. v. Woodbury, 14 Me. 281 ; McClellan v. Mc- Clellan, 65 Me. 500 ; Brown v. Brown, 1 Strobh. Eq. 363 ; 1 Spence, Eq. Jur. 497; Movan v. Hays, 1 Johns. Ch. 339, 342; Trapnall v. Brown, 19 Ark. 48; 1 Greenl. Ev. § 266 ; Brown v. Combs, 29 N. J. 36, 39. 6 Forster v. Hale, 3 Ves. 707 ; Lewin, Trusts, 31 ; Steere v. Steere, 5 Johns. Ch. 1. 6 Norman v. Bui-nett, 25 Miss. 183 ; Forster v. Hale, 3 Ves. 707 ; Scituate v. Hanover, 16 Pick. 222 ; Arms v. Ashley, 4 Pick. 71 ; Gomez v. Tradesmen's Bank, 4 Sandf. 102 ; 1 Spence, Eq. Jur. 497 ; White v. Fitzgerald, 19 Wis. 480, 485. • Evans i-. King, 3 Jones (N. C), Eq. 387. HOW CREATED, DECLARED, AND TRANSFERRED. 467 rule applies as to what is necessary in form, in conveying or transferring an existing trust by a cestui cjue trust, as in creat- ing it at first. The writing by which it is done should express the intention of the assignor to convey, with proper formal words of limitation, or words indicating the quantity of estate it is intended the eestui que trust should take.^ But the evi- dence of such creation or transfer must all be in writing, with- out the necessity of resorting to parol evidence to connect the writings by which this is sought to be shown.^ In applying these rules, it has been held, that where the deed was to " A, as he is trustee of B," it would be competent to refer to a will by which A is created a trustee of B, though this was not referred to in the deed.^ So where a trust was created in favor of " the rightful owners " of a certain estate, they were permitted to show, aliunde, who these owners were, so as to establish the trust.^ Letters from one holding real estate, addressed to A and B, in which he speaks of the estate in such a manner as to show an acknowledgment on his part that A and B and others are interested in it, might be sufficient evi- dence of an existing trust in favor of these persons.^ 1 1 Spence, Eq. Jur. 506; Wright v. Wright, 1 Ves. Sen. 409 ; 2 Flint. Real Prop. 779 ; Brydges v. Brydges, 3 Ves. 120 ; 2 Prest. Conv. 368. 2 Abeel v. Radcliff, 13 Johns. 297 ; Parkhurst v. Van Cortlaudt, 1 Johns. Ch. 273 ; Chadwick v. Perkins, 3 Me. 399 ; Walker v. Locke, 5 Cush. 90. The paper declaring the trust may refer to a supplementary paper to define the beneficiaries. Heermans v. Schmaltz, 10 Biss. C. C. 323. 8 Cleveland v. Hallett, 6 Cush. 403. * Ready v. Kearsley, 14 Mich. 226. 6 Pratt V. Aver, 3 Chandl. (Wis.) 265 ; Forster v. Hale, 3 Ves. 707, and cases cited in note ; Sumner's ed. 696 and 713 ; Lake v. Freer, 11 111. App. 576. See Montague v. Hayes, 10 Gray, 609. But if the letters are simply an incomplete expression of a testamentary disposition of the property, they will not create a trust. Preston v. Casner, 104 111. 262. And if the letters, while they acknowledge that the writer holds the land subject to a trust, leave the terms of the trust indefi- nite, and do not show who are the ccstuis que tnisf., or what estate or in what proportions they take, the court will not go outside the letters and resort to parol evidence to obtain these facts, but will pronounce the trust invalid. Dyer's App., 107 Penn. St. 446. A bond conditioned to convey an estate to such person as the obligee should api)oiut, given by one in whose name the estate had been purchased, was held to be sufficient to create a trust in favor of the obligee. Moorecroft v. Dowding, 2 P. Wms. 314 ; Orleans v. Chatham, 2 Pick. 29. So an indenture of three parts, reciting that A held the estate in trust for B, and had conveyed to C by B's request, was held sufficient to declare C a trustee. Wright v. Douglass, 468 TRUSTS. § 1465. The Time -when the Declaration of the Trust is made, if done in writing, may be either before or after the conveyance to the trustee has been niade.^ § 14G6. Precatory Trusts. — Sometimes a testator produces the same efi'ect by precatory or recommendatory words in his will, unless he clearly leaves the devisee to choose whether to follow these or not at his election. As where his language was " desire," " will," " entreat," " order or direct," " recom- mend," " hope," " no doubt," and the like, it has been held sufficient to raise a trust, where the objects intended to be benefited, and the property to be applied, are clearly indi- cated.^ Mere precatory words of desire or recommendation will not, in general, convert the devise into a trust, unless it appears affirmatively that they were intended to be impera- tive.^ But there must be certainty as to the parties who are 7 N. Y. .564. So an indorsement upon a soldier's discharge, of a certificate that A B was entitled to whatever lands such soldier iniglit have a claim to for his ser- vice, was held to be sufficient to raise a trust in favor of A B against the soldier to whom a patent for the land subsequently issued ; A B having, at the date of the indorsement, bought the soldier's right, and paid an agreed price for it. Fisher V. Fields, 10 Johns. 495. So an indorsement upon an envelope, containing a deed signed by the grantee, " Deeds, etc., property held by me in trust for B, wife, etc., to be conveyed to B when he desires it," was held to be a sufficient declaration of a trust. Ray bold V. Piiiy bold, 20 Penn. St. 308. The admission of the trust which it was sought to chai'ge upon the defendant was contained in a printed pamphlet which was published by him in relation to the estate. Barrell v. Jo}', 16 Mass. 221. And another piece of evidence held competent in the same case was the language of an indenture about the land between the defendant and a stranger. Ibid. See also Hutchinson v. Tindall, 3 N. J. Eq. 357 ; Browne, Stat. Frauds, §§ 98, 99 ; Willis, Trusts, 47. But merely calling a deed in the recital of other deeds a deed of trust does not render it so. Hurst v. M'Neil, 1 Wash. C. C. 70. An acknowledgment, however, of a trust in an answer to a bill in equity is sufficient evidence of a declaration of trust. Barron v. Barron, 24 Vt. 375 ; Pratt v. Ayer, 3 Chandl. (Wis.) 265. If a testator direct his land to be sold to pay debts, or charge it with these or with legacies, it is a good declaration binding the heir or devisee. Lewin, Trusts, 77 ; Marx v. McGlynn, 88 N. Y. 357. 1 Barrell v. Joy, 16 Mass. 221 ; Jackson v. Moore, 6 Cow. 706. 2 Erickson v. Wiilard, 1 N. H. 217 ; Jarm. Wills, 334 ; Lewin, Trusts, 77 ; Story, Eq. Jur. § 1068 ; Harrison v. Harrison, 2 Gratt. 1 ; Handley v. Wrightson, 60 Md. 198 ; Willis, Trust. 48 ; Harper v. Phelps, 21 Conn. 257 ; Williams v. Worthington, 49 Md. 572 ; Sand. Uses, 317. See this principle limited and ex- plained at length, Pennock's Est., 20 Penn. St. 274-230, by Lovvrie, J. Warner v. Bates, 98 Mass. 277 ; 4 Am. L. Rev. 617-624. 3 Burt V. Herron, 66 Penn. St. 402 ; Bowley v. Thunder, 105 Penn. St. 173 ; Sears v. Cunningham, 122 Muss. 538 ; Hess v. Singler, 114 Mass. 59. now CREATED, DECLARED, AND TRANSFERRED. 469 to take, and as to what they are to take. The words " will " and " desire " are not necessarily mandatory. If designed to be peremptory, they become imperative, though 'precatory in form. A devise to A for life of real and personal estate, with a remainder to a grandson, with a " will " and " desire," that, if the grandson come of age, he should have " a portion of the estate as a loan," was held not to create a trust in favor of the grandson during A's life.^ And generally, where one gives property by will, and points out the object of the gift, the prop- erty, and the way it shall go, a trust is created, unless the will expressly leave the property subject to the control of the trustee.^ § 1467. Not necessary to transfer Legal Estate. — It is not necessary that the creation of a trust should be accompanied by, or connected with, any transfer or change in the legal es- tate, or made simultaneously therewith. As if, for instance, the owner of real estate were to declare himself, in writing, trustee of another in respect to the same, the beneficial interest in the property would pass to the cestui que trust named, with- out any further act being necessary to effect it.^ Where a trustee, being debtor to the trust, in order to secure it made a deed of his land to himself as trustee, which was duly exe- cuted but not recorded, and left it among his papers, it was held a good declaration of trust and bound his estate accord- ingly.* And where a deed was made " to a school-house aud the congregation thereof," though it would pass no legal estate, because, for one reason, no person competent to take is named as grantee, yet it was held to be a good declaration of trust, leaving the title to vest where it was before. § 1468. Trusts conveyed by Simple Declaration. — The same doctrine applies to the case of a cestui que trust transferring the trust from himself to another. It will be sufficient for him to declare that his trustee shall be the trustee of the other person to whom he wishes to make over the trust, ^ Lines v. Darden, 5 Fla. 51. 2 Inglis V. Sailor' Snug Harbor, 3 Pet. 119 ; Foose v. Wliittemore, S2 N. Y. 405 ; Haiidley v. Wrightson, supi-n. ^ 1 Spence, Eq. Jur. 507 ; Suarez v. Pumpelly, 2 Saiulf. Cli. 336 ; Morrison v, Beirer, 2 Watts & S. 81. * Carson v. Plielps, 23 Am. L. Eeg. 103 ; s. c. 40 MJ. 73. 470 TRUSTS. especially if such other person gives the trustee notice of the transfer.^ § 1469. Trust, once created, only extinguished by Merger. — Where a trust has once been created in respect to real estate, it attaches to and binds itself upon the estate, and can never be detached from it, or extinguished, except by a union of the legal and equitable estates in one person ; the equitable, in such case, being merged in the legal estate.^ S 1470. The Declaration must be made by the one holding the Legal Estate at the time. His act is the source or origin of the two estates which flow on afterwards, independent of each other in point of ownership, until they merge by being again united in one person.^ § 1471. Acceptance of Trust binds Trustee. — No one is obliged to become a trustee by the appointment of another, To constitute one such, he must accept the trust by words or by some interference with the estate which is put in trust.* But a trustee, when he has accepted the trust, cannot surrender it or discharge himself of it without the consent of the cestui que trust or direction of the court, unless there is a power to that effect given in the instrument creating the trust.^ Where a gift is made by deed, will, or otherwise, the law presumes it to be, prima facie, beneficial to the donee, and that it is accepted by the donee, unless the contrary is shown. And this seems to apply both to the trustee and cestui que trust.^ § 1472. If the Person named as Trustee refuses the Trust, it IS treated precisely as if he were dead, or had never been named ; and if he be one of several named, the estate vests in such of them as do accept the trust.^ The refusal here meant is some- 1 1 Spence, Eq. Jur. 507. 2 1 Spence, Eq. Jur. 501 ; 1 Cruise, Dig. 403 ; Sand. Uses, 35; post, § 1484. 8 Willis, Trust. 55 ; Crop v. Norton, 2 Atk. 76. * Willis, Trust. 38, 72 ; Baldwin v. Porter, 12 Conn. 473 ; Lewis v. Baird, 3 McLean, C. C. 58 ; Scull v. Beeves, 3 N. J. Eq. 84; Goss v. Singleton, 2 Head, 67 ; Story, Eq. Jur. §1061. 5 Shepherd v. M'Evers, 4 Johns. Ch. 136 ; Lewiu, Trusts, 457 ; Cruger v. Halliday, 11 Paige, 319; Drane r. Gunter, 19 Ala. 731; Gilchrist v. Stevenson, 9 Barb. 9 ; Lalor, Real Est. 195. 6 Hill, Trust. 214 ; Goss v. Singleton, 2 Head, 77, and note to p. 68 ; Cloud v. Calhoun, 10 Rich. Eq. 358. ■^ Hill, Trust. 225 ; King v. Donnelly, 5 Paige, Ch. 46 ; unless it be a devise to HOW CREATED, DECLARED, AND TRANSFERRED. 471 thing more than a mere oral declaration made at any time : there must be some actual disclaimer of the trust on the part of the party named, or he may, at any time, assume the trust.-' But where one named as trustee in a will forbore, for twenty years, to accept or do anything under the appointment, it was held that he had renounced the trust, and refused to accept it.^ The refusal may be by deed, by matter of record, or any written evidence, or by answer in chancery. And such refusal or disclaimer will relate back, and will be held to have been made at the time of the gift.^ And if the trustee should de- cline or refuse to act at all, the court may appoint other trustees, if necessary, to carry the trust into effect.* § 1473. Death of one of Joint Trustees. — Whether the power and interest of a trustee survive when given to several, and one or more of them dies, depends upon the nature of the trust and the form of the power delegated. If the authority be com- mitted to trustees, the presumption is, that, as the power was coupled with an interest, it was meant to survive.^ " If a man deviseth lands to his executors to be sold, and maketh two executors, and one dieth, yet the survivor may sell the land, because as the state (estate), so the trust shall survive, and so note the diversity between a bare trust and a trust coupled with an interest."^ § 1474. Of Trust surviving in Case of Personal Confidence. — This subject of survivorship comes more properly under the head of Powers, which will be found in a subsequent part of this work ; and therefore it is only necessary now to say in general terms, that, if a power be a joint one coupled with an trustees, and they all decline the trust. Trask v. Donoghue, 1 Aik. (Vt.) 373 ; Putnam Free School v. Fisher, 30 Me. 526. A devise to executors eo nomine, in trust, vests in such of them as execute the will, and their survivors, though it be a trust to sell lands. Leavens v. Butler, 8 Port. 394 ; Scull v. Keeves, 3 N. J. Eq. 94, 95 ; Co. Lit. 113 a ; Lewin, Trusts, 428; Jones v. Maffet, 5 Serg. & R. 523 ; Burrill v. Sheil, 2 Barb. 457 ; Conover v. Hoffman, 1 Bosw. 214 ; Hill, Trust. 225 ; Goss V. Singleton, 2 Head, 68, note ; Saunders v. Harris, 1 Head, 185, 206. 1 Judson V. Gibbons, 5 Wend. 224 ; McCosker v. Brady, 1 Barb. Ch. 329 ; Tainter v. Clarke, 13 Met. 220, 227 ; Lewin, Trusts, 428. 2 Matter of Robinson, 37 N. Y. 263. 8 Hill, Trust. 224 ; Goss v. Singleton, 2 Head, 67. * Story, Eq. Jur. § 1061 ; White v. Hampton, 13 Iowa, 259. 6 Lewin, Trusts, 428 ; Story, Eq. Jur. § 1062 ; Peter v. Beverly, 10 Pet. 564. 6 Co. Lit. 113 a. •172 TRUSTS. interest, it will survive if one of the donees of the power die. But where it is a mere naked authority it will not survive. So if the authority be to two or more in an ofificial capacity, ratione officii, it will survive if either die. But if it be to them nomi- natim, or they are clothed with a special confidence of a per- sonal nature, it will not survive.^ And the same rule, it would seem, applies where one or more of the trustees, instead of dying, decline to act as such.^ Though in New York, if one of several trustees is suffered to resign, the others cannot go on and act as if he were dead : a new trustee must be appointed in his place.^ It often, therefore, furnishes a ready clew by which to determine whether a trust in two or more persons survives upon the death of one of them or not, to examine whether it is of the nature of a personal confidence or not; for if the act to be done requires an exercise of the judgment and discretion of the several persons named as trustees, it can only be exercised by them all.* § 1475. Survivorship — Distinction between Power and Trust. — And the rule to be gathered from what is above said may be again stated, that where there are several joint-trustees, and one of them dies, the survivors take and are authorized to act by virtue of their survivorship, in the same way as one of two joint-tenants of a legal estate takes by survivorship, unless it is a power only, and one not coupled with an interest ; because, as an almost invariable rule, two or more trustees hold as joint- tenants, and not as tenants in common. If it is such a power, it ceases with the death of either of the trustees.^ A power is considered as coupled with an interest where the trustees have 1 Bailey v. Burges, 10 K. I. 422; Tainter v. Clark, 13 Jlet. 225; Hill, Trust. 473 ; Co. Lit. 113 a, note 146. See American cases collected in Hill, Trust. 472, Wharton's note ; 1 Sugd. Pow. ed. 1856, p. 146 ; Peter v. Beverly, 10 Pet. 565; Zebach v. Smith, 3 Binn. 69 ; Conover v. Hoffman, 1 Bosvv. 214 ; Jackson d. Cooper V. Given, 16 Johns. 167 ; Story, Eq. Jur. § 1062. 2 Co. Lit. 113 a. 3 Van Wyck's Petition, 1 Barb. Ch. 570. * Hill, Trust. 226. 6 Stewart v. Pettus, 10 Mo. 755 ; ayite, § 1417 ; Peter v. Beverl}', 10 Pet. 564. " I devise that my executors shall sell " is a mere power. " I devise to my execu- tors to sell " gives an interest in the land. Mosby v. Mosby, 9 Gratt. 590. And see Hadley v. Hadley, 147 Ind. 423 ; s. c. 46 N. E. Eep, 823. See also Jackson d. Bogert v. Schauber, 7 Cow, 194 ; Bergen v. Bennett, 1 Caines, Cas. 15, 16 ; Story, Eq. Jur. § 1062. HOW CREATED, DECLARED, AND TRANSFERRED. 473 a right to the possession of the legal estate, or have a right in the subject over which the power is to be executed. ^ § 1476. Equity never wants for a Trustee. — It is a rule of universal application, that where there is a trust, a court of equity never wants for a trustee.^ Thus, where a trust is in- effectually declared, or fails, or becomes incapable of taking effect, the party taking it shall be deemed a trustee for other trusts in the will, or for those who are to take under the dis- position of law.3 And if, therefore, the one who creates the trust fails to appoint a trustee, equity follows the legal estate, and decrees that he in whom it vests shall perform the trust.* If a grant be to one as trustee, and to his successor, he cannot himself appoint such successor. Upon his ceasing to be trus- tee, tliis duty and power devolve upon the court.^ But a court cannot appoint a new trustee merely because the existing one fails to do his duty. The course in such a case is to compel him to perform it.^ And if the trust is created by a will in which an executor is named, but no trustee, the executor is ordinarily deemed to be the trustee by implication.^ Whether, therefore, the trustee named be dead, or is an improper or in- capable person, or refuses to act, the trust devolves upon the court, whose duty it is to supply a trustee.^ A trust may be valid and effectual where a trustee is named, although the cestui que trust may not then be in esse, provided such cestui que trust subsequently come into being. Thus a devise to trustees in behalf of a church or society not yet formed or 1 Gray v. Lynch, 8 Gill, 403 ; Mosby v. Mosby, 9 Gratt. 584-59-4 ; Bloomer v. Waldron', 3 Hill (N. Y.), 365. 2 McGirrr. Aaron, 1 Penn. 49 ; Harris v. Rucker, 13 B. Mou. 564; Story, Eq. Jur. § 1059 ; 1 Cruise, Dig. 403, 460 ; 1 Spence, Eq. Jur. 501 ; 2 id. 876 ; Co. Lit. 290 &, note 249, §4; Wilson v. Towle, 36 N. H. 129; Hill, Trust. 49; Cloud V. Calhoun, 10 Rich. Eq. 358; Miller v. Chittenden, 2 Iowa, 315, 370, 376; White V. Hampton, 10 Iowa, 244 ; s. c. 13 Iowa, 261 ; Mills v. Haines, 3 Head, 335. 3 Drew V. Wakefield, 54 Me. 297. * Co. Lit. 290 b, note 249, § 4 ; Stone v. Griffin, 3 Vt. 400. 5 Wilson V. Towle, 36 N. H. 129. 6 Tainter v. Clark, 5 Allen, 66. ' Nash z;. Cutler, 19 Pick. 67; Hall v. Gushing, 9 Pick. 395; Saunderson v. Stearns, 6 Mass. 37; Dorr v. Wainwright, 13 Pick. 328. 8 Burrill v. Shell, 2 Barb. 457 ; 1 Spence, Eq. Jur. 501 ; 1 Cruise, Dig. 460 ; Gibbs V. Marsh, 2 Met. 243. 474 TRUSTS. organized will be effectual, if such church or society be formed within a reasonable time.^ § 1477. Court has Pow^er to appoint and remove. — The court may appoint a new trustee as a substitute for or in addi- tion to an existing one, or may appoint one where there is none, or may discharge an existing trustee upon his own appli- cation.2 This applies also where a trustee becomes a lunatic, or leaves the country, or dies without heirs, or leaves only an infant heir.^ This is a power incidental to the general author- ity of courts of chancery, although concurrent jurisdiction is to a large extent now conferred by statute.* § 1478. When no Conveyance necessary from Old to New Trustee. — By the late English statutes, and in this the statutes of several of the United States concur, where a new trustee has been appointed by the court in the place of a former one, it operates to pass to him the legal estate which had been in the former trustee, without any further act of conveyance or release on the part of the latter.^ But this applies only to such trus- tees as are appointed under and by virtue of the statute, and not those created by deed.^ § 1479. When such Conveyance necessary. — But in the ab- sence of special statutory provision, the interest and estate of a trustee can only be divested by a conveyance thereof, even though he be removed from his trust, and another appointed by the court in his place. To complete the appointment of such new trustee, the court directs and requires the one in whose place he is appointed to execute a proper conveyance of 1 Miller v. Chittenden, 2 Iowa, 372, 376 ; ante, § 1356. 2 Wms. Real Prop. 143 ; Hill, Trust. 190, 191, Wharton's note for American cases; Lewin, Trusts, 592, 593. 3 Wins. Real Prop. 143 ; Suarez v. Pumpelly, 2 Sandf. Ch. 336. 4 Bowditch V. Banuelos, 1 Gray, 220 ; Wms. Real Prop. 143 ; Stat. 13 & 14 Vict. c. 60, 15 & 16 Vict. c. 55 ; 4 Kent, Com. 311, note. 6 Wms. Real Prop. 143 ; Stat. 15 & 16 Vict. c. 55, § 1 ; Mass. Pub. Stat. c. 141, § 6 ; Parker v. Converse, 5 Gray, 336, 341. So in South Carolina. McNish V. Guerard, 4 Strobh. Eq. 66. For American statutes, as well as cases, upon the appointment of new trustees, the reader is referred to Hill on Trustees, Whart. ed. 190, 191, notes ; Lalor, Real Est. 194, 195 ; Golder v. Bressler, 105 111. 419 ; Collier v. Blake, 14 Kan. 250. 6 Webster Bank v. Eldridge, 115 Mass. 424. Such a statute does not affect the title to lands outside the State. West v. Fitz, 109 111. 425. HOW CREATED, DECLARED, AND TRANSFERRED. 475 the legal estate to the new trustee.^ And the abandonment of a trust by one of two trustees does not vest his title in the remaining trustee.^ § 1480. New Trustee stands in Place of old. — When a trus- tee has been appointed in the place of another, and a proper conveyance has been executed to the new trustee of the estate held in trust, he ordinarily becomes as completely substituted thereby in the place of the other, and with as full powers, as if he had been invested originally with the trust.^ The exception to this is, where the original trustee had been vested with a special power indicating personal confidence, which in some cases the new trustee may not execute,'* § 1481. How far Trustee can impair Rights of Cestui. — While it is a settled principle that courts of equity will not enforce an illegal trust,^ yet, if a trust is once established as valid, neither the act of the law as distinguished from equity, nor of the trus- tee in dealing with the estate, can impair or affect the equitable estate of the cestui que trust, unless it be by a conveyance for a valuable consideration to one who is ignorant of the trust.^ And this principle extends to mortgages.^ On the other hand, no conveyance by a cestui que trust can divest the trustee of his legal estate.^ § 1482. A Trustee may devise his Estate by his last will, in which case his devisee becomes substituted to his place, if the trust be a several one ; ^ or, if he dies intestate, his estate will 1 Hill, Trust. 186, 196 ; O'Keefe v. Calthorpe, 1 Atk. 17 ; Lewin, Trusts, 594 ; Ux parte Greenhouse, 1 Madd. 109 ; Lee, Abst. 252 ; 1 Cruise, Dig. 460. 2 Webster v. Vandeventer, 6 Gray, 428. 8 Hill, Trust. 211 ; Cole v. Wade, 16 Ves, 44. * Lewin, Trusts, 596 ; Hill, Trust. 211 ; Doyley v. Atty.-Gen., 2 Eq. Cas. Abr. 195 ; Hibbard v. Lambe, Ambl. 309. 5 Willi.s Trust. 38; Atty.-Gen. o. Pearson, 3 Meriv. 399. For what would be illegal trusts, see Willis, Trust. 38, Law Lib. ed. note. 6 Wolfe V. Bate, 9 B. Mon. 208 ; Major v. Deer, 4 J. J. Marsh. 585 ; Boynton V. Hoyt, 1 Denio, 53 ; 2 Fonbl. Eq. 167 and n. ; 1 Cruise, Dig. 449 ; Pye v. Gorge, 1 P. Wms. 128 ; Hill, Trust. 282 ; Thomson v. Gilliland, Addis. 296 ; Conner v. 3 Tuck, 11 Ala. 794 ; Bumpus v. Plainer, 1 Johns. Ch, 213 ; Brydges v. Brydges, 7 Ves. 127 ; Selby v. Alston, 3 Ves. 341, 342, note ; Den d. Canoy v. Troutman, Ired. 155. T 2 Fonbl. Eq. 167, note ; Finch v. Winchelsea, 1 P. Wms. 278. 8 1 Cruise, Dig. 407. 9 Lewin, Trusts, 218; Harlow v. Smith, 2 P. Wms. 198; Titley y. Wolsten- holnie, 7 Beav. 425 ; 1 Cruise, Dig. 407. 476 TRUSTS. descend to his heirs, who are charged with the trust for which he held it.^ Nor can such heir disclaim the trust, except by- applying to the court to have another appointed in his place.^ This does not apply, of course, in the case of several trustees, where, as is usually the case, they are joint-tenants, except at the death of the last survivor, since in such a case the survivor takes the whole, and the heir nothing, unless he is heir of the last survivor. Nor does it apply where the trust is a special and personal one in the original trustees.^ § 1483. Effect of Conveyance by Trustee. — As the owner of the legal estate, a trustee may convey the same, and thereby pnss the legal title to the same to his grantee. And an inno- cent purchaser from a trustee will hold the estate discharged of the trust, although it be a constructive one, and made such by tlie fraud of the vendor.* But if the conveyance be what is called a voluntary one, that is, without consideration, or if, though with a consideration, it be made to one cognizant of the trust, the grantee will take the estate subject to the trust, and become as to it a trustee in place of his grantor.^ It has accordingly been held, that the purchaser of an estate at a sheriff's sale takes it discharged of all secret trusts of which he had no notice.^ And it was further held, that a trust in respect to such estate could not be established by parol.''' § 1484. Destruction of Trust by Merger. — If the legal and equitable estates in land become united in the same person in any way, the trust is extinguished, since no man can be a trustee 1 Hill, Trust. 803 ; Boone v. Chiles, 10 Pet. 213 ; Duffy v. Calvert, 6 Gill, 487; Willis, Trust. 53 ; 4 Kent, Com. 311 (8th ed.), note; Shortz v. Unangst, 3 Watts & S. 45. 2 Lewin, Trusts, 238 ; Hill, Trust. 303. 8 Hill, Trust. 303. * Dennis v. McCagg, 32 111. 445. See a7ite, § 1435. AYhere A bought land with B's money, and made a declaration of trust in B's favor, and subsequently conveyed the land to C, B's wife, it was held that B could not sue A at law for money had and received, but should bring a bill in equity. Norton v. Ray, 139 Mass. 230. 6 Willis, Trust. 84 ; Hill, Trust. 175, 282; Co. Lit. 290 b, n. 249, § 2 ; Hallett V. Collins, 10 How. (U. S.) 174 ; Heth v. Richmond, F.& P. R. R. Co., 4 Gratt. 482 ; Den d. Canoy v. Troutman, 7 Ired. 155 ; Lee, Abst. 237. 6 Smith V. Painter, 5 Serg. & R. 223. '' Leshey v. Gardner, 3 Watts & S. 314. HOW CREATED, DECLARED, AND TRANSFERRED. 477 for himself,^ and the equitable is merged in the legal estate.^ Thus where one, who was a trustee for his children, made a general devise of his estate to them, and died, it was held, that whether the legal estate thereby became vested in them, or descended to them by act of law, the legal estate having be- come united with the equitable one, the latter was merged in the former, and the children thereby became absolute owners thereof.3 And the same would be the effect if the trustee buy the interest of the cestui que trust, which he may do if done with good faith.4 But, to have the union operate a merger, the estates must unite in one and the same person, having a commensurate and coextensive interest in each, with no inter- vening interest in another. A legal estate in fee in one who has only a partial equitable interest, or vice versa, would not merge.^ To have this effect, moreover, the trustee must not have acquired the estates by violating any duty belonging to him as trustee ; as, for instance, by purchasing himself the trust-property held by him in trust to sell.^ If the trustee be one of the beneficiaries of the trust, he is the absolute owner of a share of the estate equal to his interests But whenever it would work injustice, or defeat the intention of a donor to work a merger, the' two estates will be kept alive although they come together in one person.^ 1 Healey v. Alston, 25 Miss. 190; 3 Prest. Conv. 314, 327; Butler v. Godley, 1 Dev. 94 ; Nicholson v. Halsi^y, 1 Johns. Ch. 422 ; Brydges v. Brydges, 3 Yes. 126 ; 1 Spence, Eq. Jur. 508 ; 2 Flint. Real Prop. 774 ; Hill, Trust. Whart. ed. 252 and note for American cases; Levvin, Trusts, 18. 2 Hoiikinson v. Dumas, 42 N. H. 306, 308 ; Nicholson v. Halsey, 1 Johns. Ch. 417 ; Gardner v. Astor, 3 Johns. Ch. 53. 8 Cooper V. Cooper, 5 N. J. Eq. 9. * Lewin, Trusts, 363, 364 ; Downes v. Grazebrook, 3 Meriv. 208. See Ayliffe V. Murray, 2 Atk. 59. 5 Lewin, Trusts, 18 ; Hill, Trust. 252 ; Selby v. Alston, 3 Yes. 339, 342, note ; Goodright v. Wells, Doug. 771 ; Donalds v. Plumb, 8 Conn. 453 ; Brydges v. Brydges, 3 Yes. 126 ; James v. Morey, 2 Cow. 284; Hunt v. Hunt, 14 Pick. 374, 384. 6 1 Spence, Eq. Jur. 572 ; 2 Flint. Real. Prop. 811. T Mason v. Mason, 2 Sandf. Ch. 432, 459 ; s. c. Mason v. Jones, 2 Barb. 229, 242 ; James v. Morey, 2 Cow. 284, per Woodworth, J. * Lewin, Trusts, 19 ; Brydges v. Brydges, 3 Yes. 126, 127 ; Donalds v. Plumb, 8 Conn. 453; James v. Morey, 2 Cow. 318; Hunt v. Hunt, 14 Pick. 374, 383; Gibson v. Crehore, 3 Pick. 475 ; Star v. Ellis, 6 Johns. Ch. 393 ; Forbes v. Mof- fatt, 18 Yes. Sumn. ed. 384 and note; 3 Prest. Conv. 557; Laussat, Fonbl. Eq. 426 and notes. Earle v. Washburn, 7 Allen, 97. 478 TRUSTS. § 1485. Husband as Trustee for the Wife. — Where an estate is conveyed to a married woman, expressly to her sole and separate use, a court of equity will hold her husband as her trustee, and not allow him to claim the rents and profits thereof as his own ; and if he become bankrupt, these will not pass to his assignees.^ So a husband, before marriage, may, by contract in writing, invest his future wife with the power of separate enjoyment and disposal of an estate, which power equity will support and enforce if it is distinct and unequivocal in its character.2 But the law does not change the legal estate into an equitable one, or affect the legal ownership of the same, by making the husband her trustee in respect to the same.^ 1 2 Flint. Real Prop. 797; Willis, Trust. 33 ; Sand. Uses, 349 ; Bennet v. Davis, 2 P. Wms. 316 ; Porter v. Rutland Bk., 19 Vt. 410. 2 2 Flint. Real Prop. 798, 799. 3 Tud. Lead. Cas. 485. RIGHTS, POWEKS, AND DUTIES OF PAIITIES TO TRUSTS. 479 CHAPTER LX. TRUSTS — RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS. § 1486. Who may be trustees, who ccstuis que trust. 1487. Same subject, contiuued. 1488. Corporations. 1489. Aliens. 1490. The trust estate at law and in equity. 1491. Power and duty of trustee to protect legal estate. 1492. Trust cannot be delegated. 1493. Joint trustees must act jointly. 1494. In public trusts, majorities may act. 1495. Of several trustees as joint-tenants. 1496. Distinction between powers and trusts. 1497. Of supplying places of joint trustees. 1498. Trustees not responsible for each others' acts. 1499. Courts of equity supervise trusts. 1500. In equity, the cestui que trust is owner. 1501. Trustee may not profit by his trust. 1502. Of cestui que trust's right to possession. 1503. Where it is a simple or dry trust. 1504. Special trust — Proprietary power of trustee. 1505. When purchaser bound to see to application of purchase-money. 1506. Trustee's compensation — Indirect profits. § 1486. Who may be Trustees, who Cestuis que Trust. — It remains to be considered what, if a trust as to lands is estab- lished, are the respective rights, powers, and duties of the trustees and cestuis que trust in respect to such trust-estates. In the first place, all persons capable of confidence and of holding real estate may be trustees. Married women may be trustees, even for their husbands ; but courts will never ap- point them as such.^ So any person capable of taking any conveyance of land may acquire an equitable interest therein, and become a cestui que trust. ^ An infant may be a trustee, and compellable to execute his trust ;^ although he will never be appointed by the court. ^ 1 Perr}^ Trusts, § 51. ' 2 Willis, Trust. 34 ; Hill, Trust. 52. 8 Irvine v. Irvine, 9 Wall. 619. * Perry, Trusts, § 53. 480 TRUSTS. § 1487. Same Subject. — It is iio objection to a person being a cestui que trust that he is unknown or unascertained, or even not in esse, when the trust is created in his favor. The trust takes effect in him whenever he is ascertained or comes into being. Nor will it affect the validity of the trust that the cestui que trust is ignorant of its creation, since he can enforce it when it comes to his knowledge.^ § 1488. Corporations are capable of being trustees of real estate, or cestuis que trust, subject to the provisions of the statute of mortmain, so far as they are adopted in the United States, and also subject to the limitation that the trust shall be within the scope of the purposes of the corporation as expressed in the charter.^ Thus towns and cities may hold property in trust for the education and relief of the poor ; ^ a savings bank may be a trustee of the deposits.* § 1489. Aliens are generally capable of holding lands in trust whenever they are capable of holding the legal title to lands, and in nearly all of the United States they are capable of holding such title.^ § 1490. The Trust Estate at Law and in Equity. — By the com- mon law, the trustee, as owner of the legal estate, might convey or incumber it during his life, and dispose of it at his death ; or, in case of his dying intestate, it would descend to his heirs.^ But in equity, whoever purchases or acquires the legal estate from the trustee, with the exceptions mentioned on a former page, holds it himself as trustee for the benefit of the cestui que trust ; and neither he nor his grantee can incumber it, or charge it with his own debts, or render it subject to the dower 1 Willis, Trust. 35 ; Hill, Ti ust. 52, and note for American cases ; Aslihurst V. Given, 5 Watts & S. 323 ; Bryant v. Russell, 23 Pick. 508, 520. Devises for charitable and religious uses come under this rule. Vidal v. Girard, 2 How. 193, 196; Bartlet v. King, 12 Mass. 537 ; Going v. Emery, 16 Pick. 107, 118; Inglis V. Sailors' Snug Harbor, 3 Pet. 99; Miller v. Chittenden, 2 Iowa, 315 et seq. 2 Phillips Acad. v. King, 12 Mass. 546 ; Sutton First Parish v. Cole, 3 Pick. 232 ; Willis, Trust. 33-35 ; 1 Cruise, Dig. 403 ; Amherst Acad. v. Cowls, 6 Pick. 427 ; Vidal v. Girard, 2 How. 127; Aug. & Ames, Corp. § 168. 3 Piper V. Moulton, 72 Me. 155 ; Boxford Relig. Soc. v. Harriman, 125 Mass. 321 ; Atty.-Gen. v. Butler, 123 Mass. 305. * Stone V. Bishop, 4 Cliff. C. C. 593. See Perry, Trusts, §§ 42-47. 6 See ante. § 132. In Indiana, non-residents of the State cannot be appointed trustees, excey>t by will, or by a decree of court. Piinker v. Dissell, 90 Ind. 375. 6 Ante, § 1482. RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS. 481 or curtesy of his wife or her husband. Tlie trust fastens upon the land, and supersedes all these charges and incumbrances. ^ But a conveyance in which both the trustee and cestui que trust join will pass a clear title to the purchaser, if they are other- wise competent to make a deed.^ § 1491. Power and Duty of Trustee to protect Legal Estate. — Thus a trustee may not only bring and maintain an action in a court of law respecting the estate held in trust, but he is the only one who can maintain such action, since a cestui que trust, though in equity the owner of the estate, is a stranger to it in the eye of the law, or at best a mere tenant at will or at suffer- ance. And while holding under his trustee, he cannot be said to be so adversely possessed as to affect a conveyance made by the trustee of the legal estate.^ But one trustee cannot sue a co-trustee in trespass, in respect to the trust-estate so long as he remains a trustee.* The trustee may recover in ejectment in a court of law against his own cestui que trust} And, as a duty corresponding to this legal ownership of the trust estate, a trustee is bound to cause the taxes, the interest on incum- brances, assessments, and expenses of repairs upon the prem- ises, to be paid out of the income of the estate.^ §1492. Trust cannot be delegated. — In those cases where there is a confidence in the trustee, and this is always deemed to be the case, unless the instrument creating the trusts author- izes the employment of another and a delegation of power to such third person, the office and duty of a trustee cannot be delegated except so far as relates to ministerial acts, where he may employ an agent who governs himself by his advice and direction in the management of the trust, he being responsible for his agent's acts.' Thus, where testator devised his estate 1 Ante, § 14S3. 2 Parker u. Converse, 5 Gray, 336. 3 Newton v. McLean, 41 Barb. 289. * Pultney M. E. Church i-. Stewart, 27 Barb. 553. 6 Lewin, Trusts, 475 ; 1 Cruise, Dig. 414 ; Mordecai v. Parker, 3 Dev. 425 ; Kussell V. Lewis, 2 Pick. 508, 510 ; Allen v. Imlett, 1 F. L.Holt, 641 ; Hill, Trust. 274, and Wharton's note for American cases. But see Kennedy v. Fury, 1 Dall. 72 ; ante, § 781 ; Fitzpatrick v. Fitzgerald, 13 Gray, 400 ; Peabody w. Harv. Coll., 10 Gray, 283; Essex Co. v. Durant, 14 Gray, 447; Brown v. Combs, 29 X. J. 36, 40. ® Hepburn v. Hepburn, 2 Bradf. 74. 7 Hill, Trust. 175, 540 ; Cole v. Wade, 16 Ves. Sumn. ed. 28 and note ; Lewin, VOL. II. — 31 482 TRUSTS. to his executors to sell, they may act, in so doing, by attorney ; but it would be otherwise in executing a naked power.^ § 1493. Joint Trustees must act jointly. — Where several arc named as trustees, they constitute together but one trustee, and must execute the trust together in order to act at all, the act of one having no effect.^ A sale, therefore, by one of two trustees, would be void, since trustees cannot act separately,^ unless the authority be " to them or either of them ; " * and althougli joint-tenants, neither can sell his interest in lands held by them as trustees.^ And in Kentucky, if one of two trustees vacate the office, the other is, by statute, authorized to act.^ § 1494. In Public Trusts, Majorities may act. — But this strictness applies only to cases of private trustees, and in relation to private trusts. If the trust be of a public nature, it may be executed by a major part of those constituting the trust.^ § 1495. Of Several Trustees as Joint-tenants. — As a general rule, moreover, if several are named as trustees, and one or more of them die, the legal estate and trust go to the survivors, as being joint-tenants thereof.^ But this may be limited by restricting the execution of the trust to all, in which case the death of either prevents the others from acting ; or to tlie sur- vivors in the plural number, when it may be executed so long as two survive, but a sole survivor cannot act.^ Trusts, 228; 1 Sugd. Fow. ed. 1856, 214 ; Bohlen's Est., 75 Penn. St. 304 ; Sin- clair V. Jackson, 8 Cow. 582. 1 Berger v. Duff, 4 Johns. Ch. 368 ; May v. Frazee, 4 Litt. 391. 2 Lewin, Trusts, 237 ; Hill, Trust. (Whart. ed.) 305, and note for American cases ; Story, Eq. Jur. § 1280 ; Sinclair v. Jackson, 8 Cow. 543 ; 1 Cruise, Dig. 455 ; Latrobe v. Tiernan, 2 Md. Ch. 474; Peter v. Beverly, 10 Pet. 532 ; Green v. Miller, 6 Johns. 39 ; Boston v. Robbins, 126 Mass. 384. 3 Ridgeley v. Johnson, 11 Barb. 527; Wilbur v. Almy, 12 How. 180. * Taylor v. Dickinson, 15 Iowa, 484. 6 Sinclair v. Jackson, 8 Cow. 583. 6 Wells V. Lewis, 4 Met. (Ky.) 271. " Hill V. Josselyn, 13 Sm. & M. 597 ; Chambers v. Perry, 17 Ala. 726 ; Lewin, Trusts, 37 ; Wilkinson v. Malin, 2 Tyrwh. 544. 8 Colder v. Bressler, 105 111. 419 ; Zabriskie v. Morris & Essex E. R. Co., 33 N. J. Eq. 22. And if the survivor dies, the trust-estate goes to the heir at law. Ibid. A trust involving discretion in the executor as trustee does not go to the administrator with the will annexed. Stoutenburgh v. Moore, 37 N. J. Eq. 63. 9 Lewin, Trusts (2d ed.), 239; Co. Lit. 113 a ; Hill, Trust. 303, and Wharton's note ; Peter v. Beverly, 10 Pet. 564 ; PrauRlin v. Osgood, 14 Johns. 553 ; Cole v. RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS. 483 § 1496. Distinction between Powers and Trusts. — But where a power without an interest is given to several, they must all join in executing it ; and it does not survive if one dies before the execution, unless the survivors are expressly authorized to act by the instrument appointing them.^ Another important distinction between trusts and powers is, that trusts are always imperative, and bind the conscience of the trustee, and may be enforced accordingly ; whereas powers leave the act to be done a matter of election with the party to whom they are given.^ § 1497. Of supplying Places of Joint-trustees. — The same rule applies as to joint-trustees if one or more decline to act. But it seems that there is a power in courts of equity to substi- tute and supply trustees in all cases where it is necessary to effect the intention of the trust, unless there is a special confi- dence implied in the trustees named ; in which case, if they refuse to act, or die, the trust may fail.^ And the rule is laid down as a universal one, that, " as trusts are now regulated, all persons who take through or under the trustee shall be liable for the execution of the trust." * § 1498. Trustees not responsible for each others' Acts. — As a general proposition, where there are two or more trustees, neither is responsible for the acts of the others, nor for their defaults, unless he joins with them in the act done or unless the act complained of was done by reason of his own default or violation of duty ; though to explain and illustrate the limita- tions and qualifications of this rule, as well as the various forms in which it is implied, would extend this inquiry beyond its proposed limits.^ Wade, 16 Ves. (Sunin. ed.) 28, note ; Lee, Abst. 237 ; Zebach i;. Smith, 3 Binn. 69; Berger v. Duff, 4 Johns. Ch. 368. 1 Stewart v. Pettus, 10 Mo. 755 ; Lep, Abst. 338 ; Cole v. Wade, 16 Ves. 27 ; Townsend v. Wilson, 1 Barn. & Aid. 608 ; Lewin, Trusts (2d ed.), 239 ; Co. Lit. 112 b ; Osgood v. Franklin, 2 Johns. Ch. 20; Franklin v. Osgood, 14 Johns. 553 ; Peter v. Beverly, 10 Pet. 564 ; Zebach v. Smith, 3 Binn. 69 ; Williams v. Otey, 8 Humph. 563 ; Gray v. Lynch, 8 Gill, 403 ; 4 Kent, Com. 325 ; 1 Sugd. Pow. 143. 2 Stanley v. Colt, 5 Wall. 168 ; 2 Sugd. Pow. 588. 8 Hill, Trust. 191, 211, and Wharton's note for American cases, 211 ; Lewin, Trusts (2d ed.), 239 ; Ex parte Schouler, 134 Mass. 426 ; Burrill v. Sheil, 2 Barb. 457 ; Lee, Abst. 238. * Lewin, Trusts (2d ed.), 218. 6 Story, Eq. Jur. § 1280 ; Ward v. Lewi.s, 4 Pick. 518, 524; S{ialdingt>. Shalmer, 484 TRUSTS. § 1499. Courts of Equity supervise Trusts. — Though COUrts of law have cognizance, as has been shown, of the legal estates of trustees, courts of equity exercise control over trustees whenever it is necessary, in order to enforce the execution of trusts, or grant relief where trustees neglect or violate such trusts.^ And it is always competent for trustees, in matters of doubt, to ask and receive directions from courts of equity in the execution of their trusts.^ And whether a trustee has an equitable right or not to convey a trust-estate, is a question purely within the cognizance of equity.^ So is the question, whether a grantee in a deed of trust has undertaken the trust or not.* And this jurisdiction these courts will exercise in aid of a cestui que trust against a trustee or any other person who derives any benefit from the trustee's acts.^ § 1500. In Equity, the Cestui que Trust is O-wner. — But it is the cestui que trust who is, in the eyes of equity, the owner of the estate, so far as the ownership may be necessary to insure to him that enjoyment of the estate which the donor or devisor intended. In contemplation of a court of equity, a cestui que trust is actually seised of the freehold. He may alien it, and any conveyance by him made will have the same operation, in equity, upon the trust, as a like conveyance would have had, at law, upon the legal estate. It is descendible, devisable, and alienable ; and, generally, whatever is true at law of the legal estate is true in equity of the trust-estate.^ § 1501. Trustee may not profit by his Trust. — Equity will not allow the trustee the least personal advantage from the trust- estate, — a rule which is universal and absolute, subject to no qualifications or exceptions.'' Even the right of homestead, 1 Vera. 303; 1 Cruise, Dig. 455, note; Kip v. Deniston, 4 Johns. 23; Willis, Trust. 194 ; Latrobe v. Tiernan, 2 Md. Ch. 474 ; Hill, Trust. 309, Wharton's note for American cases; Towne v. Ammidown, 20 Pick. 535. 1 Co. Lit. 290 b, n. 249, § 5 ; Presley v. Stribling, 24 Miss. 527 ; Robinson v. Mauldin, 11 Ala. 977 ; Jones v. Dougherty, 10 Ga. 273 ; Tucker v. Palmer, 3 Brev. 47. 2 Atty.-Gen. v. Moore, 19 N. J. Eq. 519. ^ Den <1. Canoy v. Troutman, 7 Ired. 155. * McLean v. Nelson, 1 Jones (S. C. ), 396. 5 Bush V. Bush, 1 Strob. Eq. 377. 6 Croxall V. Shererd, 5 Wall. 281. 7 Davis V. Wright, 2 Hill (S. C), 560 ; Arnold v. Brown, 24 Pick. 89 ; Green EIGHTS, POWERS, AND DUTIES OP PARTIES TO TRUSTS, 486 favored as it is by law, does not attach to the estate of a trus- tee.^ This principle is extended by the courts to the " extrem- est length," in holding agents and those occupying fiduciary relations to the property to the strictest fairness and integrity towards their principals, and to prevent them from making use of their position to benefit themselves at the expense or disad- vantage of their principals.^ And this applies also to one who acts as next friend of an infant in making partition of lands.^ Accordingly, if he buys in an incumbrance on the estate for a less sum than is actually due upon it, it enures to the benefit of the cestui que trust} If he lays out trust money in buying lands, and sells the same, and makes a profit thereby, the cestui que trust is entitled to it.° So if he buys what he has been constituted trustee to sell, and makes an advance by selling it again, his cestui que trust can compel him to account for such advance.^ [The rule that a trustee shall not be permitted directly or indirectly to derive a personal advantage from his fiduciary relation has already been fully considered, ante, § 1430 et seq. But it must always be borne in mind that a bona fide purchaser or mortgagee of the trust property without notice, actual, implied, or constructive, of the existence of the trust takes an estate discharged of the trust, provided he pays a val- uable consideration therefor.'] § 1502. Of Cestui que Trust's Right to Possession. — Although it is so often laid down by courts and writers that cestuis que trust have a right to compel their trustees to suffer them to occupy the trust-estates, and to require of them to make conveyances thereof as the cestuis que trust shall direct,^ and it has accord- V. Winter, 1 Johns. Ch. 26 ; Oliver v. Piatt, 3 How. 333 ; Hill, Trust. 535 ; Lewin, Trusts (2d ed.), 258; Conger!;. Ring, 11 Barb. 356; Shelton v. Homer, 5 Met. 462 ; Jamison v. Glascock, 29 Mo. 191. 1 Shepherd v. White, 11 Tex. 354. 2 Fairnian v. Bavin, 29 111. 76 ; Saltmarsh v. Beene, 4 Port. 292. 8 Collins V. Smith, 1 Head, 251. * Green v. Winter, 1 Johns. Ch. 20; Lewin, Trusts (2ded.), 258 ; Wiswall v. Stewart, 32 Ala. 433 ; Baugh v. Walker, 77 Va. 99. So if he foreclose a mortgage belonging to the trust, buy the land and sell it, the profits belong to the trust. Parker v. Johnson, 37 N. J. Eq. 366. 5 Lewin, Trusts (2d ed.), 259 ; Moffit v. McDonald, 11 Humph. 457. 6 Wasson v. English, 13 Mo. 176. ' Walker v. Walker, 101 JIass. 169. 8 1 Cruise, Dig. 448 ; Lewin, Trusts (2d ed.), 470 ; Hill, Trust. 278. 486 TRUSTS, ingly been held that a sale by a trustee, by consent of a cestui que trust, would pass a good title,^ it is apprehended that the general proposition can be true, to its full extent, only in re- spect to simple, or what are sometimes called dri/ trusts, where the cestui que trust is entitled to the exclusive benefit of the land, and the trustee is, by nature of the trust, merely passive in respect to it.'^ The cases above referred to are those where the pernancy of the profits, and the disposition of the estate, the^MS hahendi and the jus dispotiendi, are intended to be in the cestui que trust ; for, when other parties are interested in the estate, it rests in the discretion of the court whether the actual possession shall remain with the cestui que trust or the trustee ; and if possession be given to the cestui que trust, whether he shall not hold it under certain conditions and restrictions.^ But where land was conveyed to A in trust for B during her life, and then in trust for such of her children as should be living at her death, the court refused her application to have the trustee convey the estate to her as tenant in tail to enable her to bar the remainder, it being a contingent one."* § 1503. Where it is a Simple or Dry Trust, courts of equity will give the cestui que trust possession, or require the trustee to convey the estate as the cestui que trust may direct.^ But a trustee can only be divested of his right of possession by a de- cree of a court of equity.^ If trusts are passive, the cestuis que trust have a right to control the estate ; if active, then the trus- tees. Passive trustees cannot recover the land from the pos- session of the cestui que trust or his assignee, and such cestui que trust may compel the trustee to convey the estate for his benefit. The trust which arises in favor of one who pays the consideration upon the purchase of an estate is a passive one.'^ 1 Arringtori v. Cherry, 10 Ga. 429. 2 Lewin, Trusts (2d ed.), 470 ; 1 Cruise, Dig. 449 ; Hill, Trust. 273, 279 ; Bat- tle V. Petway, 5 Ired. 576 ; Vau.x v. Parke, 7 Watts & S. 19; Baruett's App., 46 Penn. St. 399. 8 Lewin, Tru.sts (2d ed.), 470, 480 ; Hill, Trust. 278 ; Battle v. Petwaj', 5 Ired. 576 ; Williamson v. Wilkins, 14 Ga. 416 ; Shankland's App., 47 Penn. St. 113. * Harris v. McElroy, 45 Penn. St. 216. 5 Hill, Trust. 278 ; Lewin, Trusts (2ded.), 470; Stewart w. Chadwick, 8 Iowa, 469. 6 Giipliill V. Isbell, 1 Bail. 230 * Presley v. Stribling, 24 Miss. 527. '' Fitzpatrick v. Fitzgerald, 13 Gray, 400 ; Sawyer v. Skowhegan, 57 Me. 500. RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS. 487 In a court of law, on the contrary, a cestui que trust is a tenant at will or at sufferance of his trustee ; and the latter may re- cover against him in an action of ejectment for the possession of the premises, and he wull not be admitted to deny his trus- tee's title. And if, in the case of an express trust, he enters into the premises in accordance with the terms thereof, the mere possession by him, and receiving the rents and profits, cannot be adverse.^ Nor can a cestui que trust maintain such an action in his own name against any other tenant ; for, in ejectment, the legal title alone is the matter regularly put in issue. ^ If he sues at all, it must be in the name of his trustee, even though the trust be that of a mortgage.^ The law in some of the States admits of an exception to this rule, so far that, if entitled to the enjoyment of the estate, a cestui que trust may maintain ejectment in his own name* § 1504. Special Trust — Proprietary Po-wer of Trustee. — If the trust be a special one, the trustee may exercise a proprietary power and control over the trust-estate, so far as the execution of the trust may render it necessary to invest him with these.^ 1 Ripley v. Bates, 110 Mass. 162. 2 Heard v. Baird, 40 Miss. 800. 8 Ante, § 781 ; Matthews v. Ward, 10 Gill & J. 456 ; Jackson d. Smith v. Pierce, 2 Johns. 226 ; Beach v. Beach, 14 Vt. 28; Gunn v. Barrow, 17 Ala. 743 ; Lewin, Trusts (2d ed. ), 476. See Hill, Trust. 274, Wharton's note for the American cases on the question who shall bring actions in regard to the legal estate ; Jack- son d. Kemball v. Van Slyck, 8 Johns. 487 ; Jackson d. Whitbeck v. Deyo, 3 Johns. 422 ; Goodtitle v. Jones, 7 T. R. 47 ; Doe d. Shewen v. Wroot, 5 East, 132 ; Roe d. Reade, 8 T. R. 123; Morton v. Leonard, 12 Pick. 152; Somes v. Skinner, 16 Mass. 348. So the trustee may have waste against his cestui que trust. Wood- man V. Good, 6 Watts & S. 169 ; White v. Albertson, 3 Dev. 241 ; Freeman v. Cook, 6 Ired. Eq. 373. * In Mississippi, where a trust has been satisfied. Brown v. Doe, 7 How. (Miss.) 181. The contrary is held in Ohio. Moore v. Burnet, 11 Ohio, 334. But in Pennsylvania the cestui que trust may sue if entitled to the enjoyment of the estate. Presbyterian Cong. v. Johnston, 1 Watts & S. 9 ; School Directors v. Dunkle- berger, 6 Penn. St. 29. 5 Lewin, Trusts (2d ed.), 470 ; Hill, Trust. 273; McCosker v. Brady, 1 Barb. Ch. 329 ; Barnett's App., 46 Penn. St. 399. The power of the trustee to control the estate was illustrated in the case of Pleasanton's App., 99 Penn. St. 362. In that case, the estate comprised a large number of houses. The trustee fixed the rent at a high price, so that some of the houses remained unlet, on th.e ground that the gain would more than offset the loss. The court held that he was not liable on a surcharge for the amount of loss, as his error was one of discretion merely, although if an application had been made for his removal, it might have been successful. 488 TRUSTS. And where the power of a trustee ceases by the limitation con- tained in the trust itself, he can no longer hold possession of the estate, and may be compelled to reconvey it.^ § 1505. When Purchaser bound to see to Application of Pur- chase-money. — There is one class of trusts where equity follows the estate into the hands of bona fide purchasers, although the sale be. made in conformity with the power and duty of the trustee ; and that is where devises of lands are made to trus- tees to sell for the payment of certain specific debts, or to apply the money to certain specific purposes. The purchaser in such cases is bound to see that the money is properly applied ; other- wise the land may be charged in such purchaser's hands with the trust of paying such debts or the execution of such pur- pose.2 But this doctrine is confined to cases where the trust is of a limited and defined nature, and does not extend to one of a general character, such as the payment of a testator's debts or legacies generally, without specifying or defining them.^ And the reason for the distinction is, that in one case the pur- chaser is apprised, by the terms of the power of the trustee, of the specific purposes for which the money is to be applied, and may protect himself by seeing that this is done ; in the other he has no means of knowing what debts, and the like, are to be paid, nor to whom.* So where the trustee is to sell at his dis- cretion at public or private sale, the purchaser is not bound to see to the application of the purchase-money. And when the trust is recorded, the purchaser is charged with notice of what it is. And if the sale were made for other purposes than the execution of the trust, the court may in their discretion set it aside if this was known to the purchaser.^ And where executors were authorized to sell, if in their judgment it should be neces- 1 Waring v. "Waring, 10 B. Mon. 331. ^ Story, Eq. Jur. § 1127 ; Duffy v. Calvert, 6 Gill, 4S7 ; Gardner v. Gardner, 3 Mason, C. C. 218 ; Diinch v. Kent, 1 Vern. 260 ; Spalding v. Shalmer, 1 Vern. 301 ; 1 Cruise, Dig. 450. 8 Oonover v. Stothoff, 38 N. J. Eq. 55 ; Keister v. Scott, 61 Md. 507 ; Guill v. Northern, 67 Ga. 345 ; Carey v. Brown, 62 Cal. 376 ; Norman v. Towne, 130 Mass. 52. * Story, E(i. Jur. § 1130 ; 1 Cruise, Dig. 451 ; Potter v. Gardner, 12 Wheat. 498 ; Andrews v. Sparhawk, 13 Pick. 393; Stall v. Cincinnati, 16 Ohio St. 169, 177; Urann v. Coates, 117 Mass. 44. 6 Nicholls V. Peak, 12 N. J. Eq. 69. RIGHTS, POWERS, AND DUTIES OF PARTIES TO TRUSTS. 489 sary, a purchaser is not bound to see to the application of the purchase-money.^ § 1506. Trustee's Compensation — Indirect Profits. — Formerly it was a doctrine of universal application, that, a trust being a matter of honor and personal confidence, a trustee was not en- titled to charge compensation for his services. But this has not been generally adopted in this country, and the doctrine is undergoing a change in England.^ [But neither in England nor in the United States will a trustee be allowed to make an indirect profit by reason of his connection with tiie estate. " If trustees are factors, or brokers, or commission agents, or auctioneers, or bankers, or attorneys, they can make no charges against the trust estate for services rendered by them in their professional capacities to the estates of which they are trustees." 2] 1 Davis «. Christian, 15 Gratt. 11. 2 Story, Eq. Jur. § 1268 ; Barrell v. Joy, 16 Mass. 221 ; Denny v. Allen, 1 Pick. 147 ; Meachani v. Sternes, 9 Paige, 398 ; Wagstaff v. Lowerre, 23 Barb. 209. 3 Perry, Trusts, § 432. 490 TRUSTS UNDER THE LAW OF NEW YORK. CHAPTER LXI. TRUSTS UNDER THE LAW OF NEW YORK. § 1507. The law as to trusts as well as uses has been materially modified by statute in New York, which has led to several important rulings of their courts, to which it is pro- posed briefly to refer, rather by way of showing what depart- ures have been made from the general system of trusts, as above explained, tlian of giving a complete outline of the present system prevailing there. ^ The statute referred to is art. 2, tit. 2, c. 1, part 2d, of the Revised Statutes of New York of 1827. The object of the act was to abolish all trusts where, by tlie English statute of uses, the legal estate would be exe- cuted in the person entitled to the equitable estate, and to declare them legal estates in the cestuis que trusty extending this principle to trust terms where the cestuis que trust are to have the benefit of the possession of the estate.^ So where the property conveyed in a deed has been given to the grantee merely, as a trustee for others, and not for his own benefit, he will take no legal title or beneficial interest under such deed.* And if the cestui que trust be not named or ascertained, the limitation would be wholly void.^ Nor will the form in which the trust is limited make any difference where the purpose and intention are to secure the enjoyment or possession of the 1 For much of what follows, reference has been had to " The Law of Real Property of the State of New York," by Mr. Lalor. The law of Alabama is substantially like that of New York on this subject. You v. Flinn, 34 Ala. 412, 413. 2 Lalor, Real Prop. 125 ; Coater v. Lorillard, 14 Wend. 365-399. 8 Rev. Stat. 1827, pt. 2, art. 2, tit. "2, c. 1, § 47 ; Lalor, Real Prop. 155, 157 ; NicoU V. Walworth, 4 Denio, 385 ; Knight ?'. Weatherwax, 7 Paige, 182. * Lalor, Real Prop. 157 ; LaGrange v. L'Amoreux, 1 Barb. Ch. 18. So in Min- nesota. Sumner v. Sawtelle, 8 Minn. 318. 5 Hotchkiss V. Elting, 36 Barb. 44. TRUSTS UNDER THE LAW OP NEW YORK. 491 property to another than the grantee named. Thus a limita- tion to A to his use, to the use of or in trust for B, would give nothing to A, and the legal and equitable estates would unite in B.i But what are known as active trusts are not affected by the statute : they remain as they were before its passage.'^ Thus a grant to A in trust to pay the rents to B, a married woman, during her life, and after her death to convey to her children, is a good trust-estate for the life of B.^ In such case, the trust would cease at tlie death of the cestui que trust for life, and the remainder would become an executed use in the one who is to take the estate ; as where the trust was for A during life, and at his death to convey the estate to B, the estate is executed in B without any further act by the trustee.* A grant in trust for two purposes, one lawful and the other not, would create a valid trust in respect to the lawful purpose, but be void as to the other.^ Under the denomination of active trws^s, which are recognized by the statute as valid, are, ^/-s^, to sell for the benefit of creditors ; second, to sell, mortgage, or lease for the benefit of legatees ; third, to receive rents and profits, and apply the same to the use of any person; fourth, to receive rents and profits to accumulate for a period and pur- pose authorized by statute.^ So a devise in trust to pay an- nuities out of real estate is held to be a valid trust.'^ Nor does 1 Rev. Stat. 1827, and 5th ed. 1859, pt. 2, art. 2, tit. 2, c. 1, § 49 ; Stat, at Large, vol. 1, p. 677, § 49 ; Lalor, Real Prop. 158 ; Wood w. Wood, 5 Paige, 596. 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 48 ; Lalor, Real Prop. 157 ; Cush- ney v. Henry, 4 Paige, 345 ; Judsoii v. Gibbons, 5 Wend. 224. 8 Wood V. Mather, 38 Barb. 477. * Livingston's Pet., 34 N. Y. 567. 5 Harrison v. Harrison, 36 N. Y. 548. 6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 55 ; Lalor, Real Prop. 167. See Oilman v. Reddington, 24 N. Y. 9. ^ Mason v. Mason, 2 Sandf. Ch. 432. A trust to pay to A " all the income de- rived from my estate after paying the necessary expenses," A being a non-resident alien, has been held to be an active and valid trust. Marx v. McGlynn, 4 Redf. Surr. 455 ; s. c. 88 N". Y. 557. So a trust to buy a house and lot. Scofield v. St. John, 65 How. Pr. 292. The trust need not be in the precise words of the st.atute in order to be a valid trust. Thus, where a trust was expressed to be for the neces- sary support and maintenance of the testator's son during his life, and after his death the property to go to his children, it was held to be a valid trust. Donovan V. Van De Mark, 78 N. Y. 244. A trust-deed to one to sell and convey lands, and until they should be sold to rent them, to execute deeds on the payment of debts owing on the lands, and to pay the proceeds to the settlor during his life, and after 492 TRUSTS UNDER THE LAW OF NEW YORK. the statute intend to affect implied or resulting trusts, except to limit their extent, confining them to cases where some im- proper advantage has been taken by the trustee of the confi- dence or situation of the cestui que trust.^ It is accordingly provided, that no trust shall result where one pays money and the conveyance is made in the name of another, unless it is done without the knowledge or assent of the party paying the money, or unless the party paying the money have creditors, in which case a trust results in their favor. So if A purchases land with B's money, and takes a deed to himself, with the knowledge of the owner of the money, it will not raise a result- ing trust in his favor.^ But if this is done without the knowl- edge of the owner of the moiiey, there is a resulting trust in his favor. Thus, where an agent bought land with the money of the principal, the question whether or not a trust resulted in favor of the principal w^as held to turn upon the question whether he knew of the action of the agent.^ The money must be paid before the execution of the deed. Thus if A buys land with his own money and after the deed is executed, B reimburses A the price of the land, there is no resulting trust even in favor of B's creditors.* In New York, creditors of one paying money for an estate where the deed is taken in a third person's name may resort to equity for reacliing it for the purpose of satisfying their debts out of it. The statute raises and declares a trust in such cases in favor of the cred- itors of the one who pays the money .^ But where a married woman paid the consideration, and the conveyance was with- out her knowledge taken to her brother, it was held to raise a resulting trust in her favor, and not to come within the his death and the payment of his debts to distribute as he shoukl in writing ap- point, or in default of such appointment to his heirs, is not a valid trust. Heer- mans v. Burt, 78 N. Y. 259. ^ Lalor, Real Prop. 125, 159 ; Astor v. L'Amoreux, 4 Sandf. 524. 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 51, 52 ; Lalor, Keal Prop. 160- 162 ; Norton v. Stone, 8 Paige, 222 ; Jencks v. Alexander, 11 Paige, 619 ; Brew- ster V. Power, 10 Paige, 562 ; McCartney v. Bostwick, 32 N. Y. 59 ; Stebbins i-. Morris, 23 Fed. Rep. 360. 8 Reitz V. Reitz, 80 N. Y. 538. ♦ Niver v. Crane, 98 N. Y. 40. 6 McCartney v. Bostwick, 32 N. Y. 53, 59 ; Garfield v. Hatiuaker, 15 N. Y. 475 ; Wood v. Robinson, 22 N. Y. 564. TRUSTS UNDER THE LAW OP NEW YORK. 493 statute of New York.^ So where the jjarents of a minor, wish- ing to malie an advancement to her, purchased an estate, and the deed was taken in the name of A, who paid no part of tho purchase-money, it was held that a trust resulted in favor of the minor, which she could enforce against A in equity as trustee.^ But if one pays another's money, and takes a deed to himself without the knowledge or assent of such other person, or do this in violation of a trust, a trust results in favor of him whose money has been thus applied, as would have been the case before the statute.^ No implied trust, however, will affect a purchaser without notice, who pays a valuable consideration for the estate.* Where there is an express trust, the whole estate is in the trustee. The cestui que trust takes no estate or interest in the lands, and can only enforce the trust in equity.^ It was once held that the statute does not abolish public chari- table trusts, but the courts will enforce them as before.^ But later decisions seem to favor the idea that all charitable trusts, except such as are express and come within those excepted in the act abolishing uses and trusts, are included in the act, and are no longer valid. '^ And it was finally settled that charitable trusts as understood in England are not excepted from the statute, if the trust be for the benefit of a class undefined and incapable of being ascertained with certainty. It is sufficient that the legatee is so described that he can be ascertained and known when the right to receive the legacy accrues.^ As to the duration of trusts, the rule is that they will be held to con- tinue so long as it may be necessary to accomplish the purposes for which they are created, and the estates of trustees cease as soon as the purposes cease for which the trust was created.^ Where lands are devised to executors or trustees to sell, and 1 Lounsbury v. Pnrdy, 18 N. Y. 515 ; Day v. Roth, 18 N. Y. 448. 2 Sieniou v. Schurck, 29 N. Y. 598. « Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 53 ; Lalor, Real Prop. 164 ; Reid I'. Fitch, 11 Barb. 399 ; Lounsbury v. Purely, id. 496. * Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 54 ; Lalor, Real Prop. 167. 5 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 72 ; Lalor, Real Prop. 185. 6 Williams v. Williams, 8 N. Y. 525. f Levy V. Levy, 33 N. Y. 97, 134, where Wright, J., examines the question at great length. See also Downing v. Manshall, 23 N. Y. 366. 8 Holmes v. Mead, 52 N. Y. 343. 9 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 59, 79 ; Lalor, Real Prop. 176. 494 TRUSTS UNDER THE LAW OF NEW YORK. they are not to receive the rents and profits, no estate vests in them, but a mere power only. And the same rule applies to all cases of express trusts which may be exercised under the form of a power. They are construed as giving, not an estate, but merely a power.^ Upon the creation of a trust, whatever estate or interest is not embraced in the trust, or otherwise disposed of, remains in and reverts to the person who creates the estate of the trustees.^ Where the trust is expressed in the instrument creating it, every sale or act of the trustee which is in contravention of the trust is void.^ If the trust is not declared in the deed conveying the estate to the trustee, it is liable for the debts of the trustee in favor of subsequent creditors without notice of the trust, and shall be deemed his absolute property as to them, and purchasers from him, with- out notice, and for a valuable consideration.* No one paying money in good faith to a trustee is to be responsible for its application.^ Trust-estates do not descend to the heirs of trustees. If, at the death of a trustee, a trust is unexecuted, the estate vests in the court, who may execute the trust in person, or appoint a trustee for the purpose.^ Trustees may resign by permission of the court, or may be removed for good cause ; and in such cases the court may substitute new trustees in place of the old ones." 1 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, §§ 70, 72; Lalor, Real Prop. 182, 185 ; Heermansu. Robertson, 64 N. Y. 332. 2 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 74 ; Lalor, Real Prop. 187 ; James f. James, 4 Paige, 115. 3 Rev. Stat. 1827, p. 2, art. 2, tit. 2, c. 1, § 77 ; Lalor, Real Prop. 189. * Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 76 ; Lalor, Real Prop. 189. 6 Rev. Stat. 1827, pt. 2, art. 2, tit. 2, c. 1, § 78 ; Lalor, Real Prop. 190. 6 Rev. Stat. 1827. pt. 2, art. 2, tit. 2, c. 1, § 80 ; Lalor, Eeal Prop. 193. ^ Rev. Stat. 1827, pt. 2, art. 2, tit. 2, e. 1, §§ 81-83 ; Lalor, Real Prop. 194- 196. ESTATES IN REVEESION. 496 CHAPTER LXII. ESTATES IN REVERSION. § 1508. Estates in expectancy. 1509. Reversion defined. 1510. Reversion may be conveyed or devised. 1511. May exist after any number of estates less than a fee-simple. 1512. Wliat reversion after base fee. 1513. Reversion after what estates. 1514. Reversioner's seisin. 1515. Inheritance of reversions. 1516. Dower and curtesy. 1517. Rights incident to reversions. 1518. Reversioner's remedy for waste. 1519. Reversioner's property in growing trees. 1520. Rent incident to reversion. 1521. Merger of reversion with prior estate. 1522. Reversion not affected by disseisin of prior estate. 1523. Fealty due to reversioner. 1524. Reversion of estate granted to a corporation. 1525. Devise of a subsequent estate to heirs. § 1508. Estates in Expectancy. — [Estates, the enjoyment of which is postponed to a future time, are called estates in ex- pectancy. Of these, the estate in reversion and the estate in remainder were known to the common law ; that is, they were legal estates created or called into being by the common law method of conveyance, by feoffment and livery of seisin. The reversion is the estate left to a grantor after he has carved out of his estate a present particular estate less than his own. The owner of the present particular estate has the present right of possession and enjoyment, while his grantor, called the reversioner, has an estate whose right of enjoyment, and the right of possession under which, are postponed until the termination of the particular estate, A remainder is an estate created by the same act which created another present, prior particular estate, and is limited to take effect in possession and enjoyment immediately upon the termination of the particular •196 ESTATES IN REVERSION. estate. Because at common law no estate of freehold could be created without livery of the seisin, and because livery was an act operative in prcesenti, no estate of freehold to com- mence 171 futuro could be created without the interposition of the particular estate, to whose tenant livery was made on be- half of the future tenant or remainder-man. But the statute of uses made possible the creation of estates to commence in futuro without the interposition of a prior particular estate. It will be remembered that a use was an equitable estate, and that uses could always be created to commence in futuro. Wlien the use arose, the feoffee to uses was held accountable to the cestui que use. After the passage of the statute of uses, a use could still be created to commence in the future, and when it arose, the statute drew the seisin to the use, turning the equitable into a legal estate. These future legal estates, creatable under the statute of uses, independent of any prior intermediate estate, are called springing uses and shifting uses. By a process of judicial legislation, as will be fully explained hereafter, it became possible, after the statute of wills, 32 & 34 Hen. YIIL, to create by will future legal estates independent of a prior intermediate estate, and tliese are called executonj devises. Springing uses, shifting uses, and executory devises are classed together as executory estates.'] § 1509. A Reversion is defined as what remains to the owner of an estate after he has parted with a portion of it, the possession of what thus remains being to return or revert to him, upon the determination of the period for which the por- tion so parted with was to be enjoyed.^ Consequently, as to all the estate in the lands, except the particular part so granted or devised, the original owner remains still the owner, in all re- spects, as he originally was. He has simply carved out of his original estate a temporary use and enjoyment of it; and when that has been served, he is in as if no such grant had been made. This reversion, therefore, is a present vested estate, which the law creates or raises in his favor, and which has all the properties of the original estate held by him, except the right of present possession and enjoyment. § 1510. May be conveyed or devised. — It may, accordingly, 1 Watk. Conv. c. 16. ESTATES IN REVERSION. 497 be conveyed by deed or devise, or will go to legal representa- tives of the reversioner if he dies intestate, though there was a technical difficulty at the common law in conveying it by feoffment, since the reversioner is not in possession so as to make livery, unless the particular estate was for years, and the tenant consented to the livery. It required, therefore, to be done by grant, and, like other grants, could only be made by deed, even before the statute of frauds. And formerly it was requisite that the tenant of the particular estate should assent to the transfer, and this assent was called his attornment. But this is now done away with by statute 4 Anne, c. 16, § 9.^ The reversion may be conveyed by any form of deed under the statute of uses, such as bargain and sale, covenant to stand seised, and lease and release ; but it can no more be granted to commence in futuro than any estate in possession, though a similar estate may be created to come into effect as a spring- ing use.2 § 1511. May exist after any Number of Estates Less than a Fee- simple, — It is no matter how many estates are carved out of the owner's entire estate, a reversion will be left, provided these do not amount in quantity to his original estate. Thus the owner of a fee may grant twenty or more successive life- estates, and still retain his fee-simple of the land, though his right of possession will be suspended till these life-estates shall have been exhausted.^ There is a reversion left to the grantor of an estate in fee-tail.* § 1512. What Reversion after Base Pee. — It has been as- sumed, that, where one grants a base fee in land, there is no reversion remaining in him.^ But if the determinability of the fee depend upon an event, which, by the laws of nature, must happen at some time, as an estate to A and his heirs, so long as a certain tree stands, it would seem that there would be a reversion in the grantor.^ In one of the cases, the court 1 See ante, § 698. 2 Walk. Conv. 211, Coventry's note ; Burt. Real Prop. §§ 39, 40 ; Jones v. Roe d. Perry, 3 T. R. 93 ; 2 Cruise, Dig. 336 ; 1 Prest. Est. 89 ; Wms. Real Prop. 198. 199. 8 2 Cruise, Dig. 335, * 2 Cruise, Dig. 335. 6 2 Cruise, Dig. 335. 6 Ante, § 169 ; 1 Prest. Est. 440. VOL. II. — 32 498 ESTATES IN REVERSION. call such an interest as this a " possibility of reverter ; " but they all agree that it is not an interest which can be limited by way of remainder.^ Whereas, if the estate were granted to A and his heirs till B returns from Rome, it would create a pos- sibility of reverter, and not a reversion ; for if B were to die at Rome, the estate in A would become absolute and indeter- minable.^ So if A sell land to a banking company, and they hold it till their charter expires, it will revert to him or his heirs. But such a right is not a reversion : it is a naked possibility of reverter which he could not convey or assign.^ § 1513. Reversion after what Estates Whatever estate a man may have, be it for years, for life, or in fee, if he parts with only a portion of it, the residue is in him as a reversion. Thus the owner of a fee may grant a life-estate, and a reversion is at once raised. If he gives an estate for years only, the reversion does not arise till the lessee enters ; though if the estate for years is created by a conveyance deriving its effect from the statute of uses, the law gives the lessee possession without entry, and a reversion arises at once. Upon this prin- ciple, if a tenant in tail grant away a life-estate to another, he has a reversion. So if a tenant for life create an estate for years, he has a reversion left ; and if a tenant for fifty years underlet for forty-nine, he has a reversion, as he would have though his own original estate exceeded but by a single day the estate which he parts with to his tenant.^ § 1514. Reversioner's Seisin. — A reversioner in fee, subject to an estate for life or years, is technically said to be "seised of the reversion of the tenements as of fee and right," ^ though there can be no actual seisin thereof during the existence of the particular estate of freehold.*^ And such reversion, expect- ant upon an estate for life, vests, in Massachusetts and several of the States, by descent, in the heirs of the tenant in fee upon his decease, and their rights, as such heirs, will be governed by 1 Ayres v. Falkland, 1 Ld. Raym. 326. 2 Ante, § 170. 3 Nicoll V. N. Y. & E. R. R. Co., 12 N. Y. 134. * 2 Cruise, Dig. SBH, 336. 6 Wrotesley v. Adams, Plowd. 191 ; Moore v. Rake, 26 N. J. L. 575, 589 ; Cook V. Hammond, 4 Mason, C. C. 484, 489 ; 2 Cruise, Dig. 336 ; ante, § 116. 6 Vanderheyden v. Crandall, 2 Denio, 9. ESTATES IN REVERSION. 499 the law as it then existed, and not as it may be at the expira- tion of the life-estate, when the reversion becomes an estate in possession. Such reversioner may have waste against the ten- ant for life, or he may alien his interest, or mortgage or charge it with his debts. ^ And yet, if the widow or husband of the deceased ancestor takes dower or curtesy in the estate, it so far defeats the seisin of the heir as reversioner, that, if he dies during the continuance of the life-estate of the widow or husband, his own widow will not be entitled to dower out of the reversion when it shall come to be an estate in possession.^ §1515. Inheritance of Reversions. — From this particular nature of the seisin of the reversioner, nice and difficult ques- tions of descent have arisen at common law, where one must trace his descent as heir from the ancestor who was last actually seised, in consequence of the rule that seisina facit stipitem^ non jus. In Massachusetts, as above stated, this rule has been changed. But at common law, although each suc- cessive reversioner, to whom a reversion might have descended during the existence of the particular estate for life, to which it is subject, might convey it, devise it, or incumber it, or it might be levied on for his debt, and his grantee or devisee, or judgment creditor, would become a new stock of descent, yet, if no act of transfer of this kind took place before the rever- sioner died, the reversion would not necessarily descend to his heirs, but would descend to whoever was then the heir of the person last seised, however far back it might be necessary to trace the descent to find who had been so seised, and who was his lineal heir. This subject is discussed and explained by Story, J., and Shaw, C. J., in the cases of Cook v. Hammond and Miller v. Miller, above cited.^ If, however, the reversioner shall have acquired his title by purchase, he, of course, be- comes a new stock of descent, and his heirs take irrespective of any anterior owner.* But it must be understood, that the exclusion of a mesne reversioner as a stock of descent, because 1 Miller y. Miller, 10 Met. 393; Cook (;. Hammond, 4 Mason, C.C. 467 ; Marley V. Rodgers, 5 Yerg. 217. 2 Ante, § 443 ; Cook v. Hammond, 4 Mason, C. C. 485. 8 See also 4 Kent, Com. 385. Cook t'. Hammond, 4 Mason, C. C. 467; Miller V. Miller, 10 Met. 393. * 4 Kent, Com. 386. 500 ESTATES IN REVERSION. not actually seised, only applies where the particular estate is a freehold ; for if it he an estate for years only, the reversioner would he deemed to he actually seised, so as to make a new stirps} But the law in this respect is now changed hy statute in many of the States hesides Massachusetts.^ § 1516. Dower and Curtesy. — In accordance with the prin- ciple above stated, that a reversioner in fee expectant upon an estate for years is deemed to be actually seised, the wife or husband of such reversioner will be entitled to dower or curtesy in the same manner as if the reversioner were in actual posses- sion, subject, of course, to the estate for years, if it was created before the marriage, or the reversion were acquired by pur- chase or descent during coverture.^ § 1517. Rights incident to Reversions. — Among the powers and rights incident to a reversion, and which pass with it to whomsoever it may come by descent, purchase, or devise, are, first, a right to maintain an action for an injury done to the inheritance, such as cutting trees, impairing houses, and the like, whether done by the tenant or a stranger; second, a right to receive accruing rents upon a demise of the premises in respect to which the reversion exists. If the act injurious to the inheritance be done by a stranger, both the tenant and the reversioner may have separate actions, each according to the injury done to their respective interests which are thereby affected, the action by the tenant being trespass, that of the reversioner being case,* though now, by statute, in New York, a reversioner may have waste against the tenant, or trespass against a stranger doing injury to the inheritance.^ § 1518. Reversioner's Remedy for "Waste. — To protect the rights of those having reversionary interests in land from toi'tious acts by the tenants, which injuriously affect the iu- heritance, the statutes of Marleberge aud Gloucester provided a remedy by an action of w^aste, whereby the party entitled to 1 Co. Lit. 15a ; 4 Kent, Com. 386. 2 See post, § 1847. 3 2 Cruise, Dig. 338 ; ante, § 365. * Jesser v. Gifford, 4 Burr. 2141 ; 4 Kent, Com. 355 ; Little v. Palister, 3 Me. 6 ; Bartlett v. Perkins, 13 Me. 87; Jackson v. Pesked, 1 Maule & S. 234; Ripka V. Sergeant, 7 Watts & S. 9; ante, § 297 et seq. ; Wood v. Griffin, 46 N. H. 239. ^ Livingston v. Haywood, 11 Johns. 429. ESTATES IN REVERSION. 501 the inheritance recovered damages, and the place wasted. And besides this, he might maintain an action on the case in the nature of wastc.^ § 1519. Reversioner's Property in Growing Trees. — 'A rever- sioner has such a property in growing trees, although the premises are in the possession of a tenant for life, that if the tenant or a stranger cut them without right, as in a case where timber-trees are cut by a tenant, they become at once, as soon as severed, the personal property of the reversioner, who may recover for them accordingly if carried away,^ And yet a reversioner, entitled to land only upon the determination of a life-estate, has no right to authorize the cutting of trees during the term for life.^ § 1520. Rent incident to Reversion. — In respect to the recovery of rent by the owner of the reversion, as the law stood prior to 32 Hen. VIII. c. 34, where one made a lease reserving rent, and took a covenant for the payment thereof from the lessee, and then conveyed his reversion to a stranger, the purchaser had no remedy upon such covenant except in the name of the covenantee, nor could he avail himself of any condition in the lease to defeat the same by entry. Rut by the thirty-fourth chapter of the statutes of that year, alike remedy is given to assignees of a reversion as the reversioner himself had, for the recovery of rent, or for the breach of any covenant or condition in a lease by the lessee or his assigns.* Where there is a demise, therefore, of an estate, reserving rent, the right to recover this rent is incident to the reversioner in whosesoever hands it may be, unless the rent shall have been severed or granted away by itself by a reversioner. If, there- fore, a reversioner granted his reversion, either by absolute deed or by mortgage, with no exception as to rent, the assignee may recover for any rent accruing due after such assignment made. But rent already due is a chose in action, and does not pass with the reversion.^ 1 Ante, §§ 270, 311 ; post, Appendix C, Appendix D. 2 Richardson v. York, 14 Me. 216. * Simpson v. Bowden, 33 Me. 549. * Appendix Q. 6 Burden v. Thayer, 3 T\Iet. 76 ; Wms. Real Prop. 203 ; Condit v. Neighhor, 13 N. J. L. 83; Co. Lit. 143 a. 502 ESTATES IN REVERSION. § 1521. Merger of Reversion with Prior Estate. — If the re- version and the particular estate on which it depends become united in the same person by the same right, without any in- tervening interest, the particular estate merges in the rever- sion ; or, in other words, the reversion becomes an estate in possession by removing or extinguishing that which interposed between the right and tlie enjoyment in the reversion. Such would be the effect, and by the same course of operation, if, instead of the reversion being a freehold, and the particular estate a term for years, they were both terms for years. And even if the particular estate were for a larger num- ber of years than the reversion, it would, nevertheless, be merged or extinguished by the union of the two in the same person, and the shorter term in reversion would alone remain.^ § 1522. Reversion not affected by Disseisin of Prior Estate. — It is a familiar principle, that by a disseisin, followed by an adverse possession, for the time fixed by statute as the period of limitation, a title may be acquired to land, to the exclusion even of him who had an incontestable title. But as this ap- ])lies only as against one who has an immediate rigbt of entry, whereby to regain the seisin and possession so lost, if the ten- ant of the particular estate be dispossessed of the estate, the reversioner is not thereby affected, nor does the statute of limitations begin to run until he acquires a right of entry by a natural determination of the particular estate. Nor will the reversioner be affected by a descent cast ; that is, by the dis- seisor dying seised, and his estate descending to his heir during the continuance of the particular estate.''^ § 1523. Fealty due to Reversioner. — It should be remarked, that, theoretically, fealty is always due from the tenant of the particular estate to the holder of the reversion, as being always inseparable from the reversion, and not like rent, which, though a usual incident to a reversion, is not an inseparable one. For 1 Ante, § 741, where the subject is considered at length ; Watk. Conv. ed. 1838, 214 ; 2 Flint. Real Prop. 314 ; Hooker v. Utica, etc. Tiirnp. Co., 12 Wend. 373. 2 Jackson d. Hardenbergh t'. Schoonmaker, 4 Johns. 390, where the particular estate was one for life ; 2 Crabb, Real Prop. 983. See Washb. Ease. 110 ; 3d ed. 160. ESTATES IN REVERSION. 503 tlie rent may be granted away, reserving the reversion, or the reversion reserving the rent, if done by special words. ^ § 1524, Reversion of Estate granted to a Corporation. — [Where an estate in fee-simple has been granted to a corpora- tion which is afterwards dissolved, there is no reversion to the grantor or his heirs.^ The property of tlie corporation there- upon becomes a trust fund to be administered for the benefit of the creditors primarily, and then of the stockholders.^] § 1525. Devise of a Subsequent Estate to Heirs. — At com- mon law, if a man seised of an estate limited it to one for life, remainder to his own right heirs, they would take, not as remainder-men, but as reversioners ; and it would be, more- ever, competent for him, as being himself the reversioner, after making such a limitation, to grant away the reversion. And where he made the limitation after a life-estate to his own heirs by will, they took as reversioners, and not as purchasers.* But by the statute 3 & 4 Wm. IV. c. 106, § 3, a devise to an heir takes effect as such, though it be of the same estate he would otherwise have inherited. 1 Co. Lit. 143 a; Wms. Real Prop. 199 ; 2 Flint. Real Prop. 311 ; Watk. Conv. (ed. 1838) 213; ante, § 1192. 2 Wilson V. Leary, 120 N. C. 90 ; s. c. 26 S. E. Rep. 630. 3 5 Thomp. Corp. § 6746. * Gilb. Uses, Sugd. ed. 32 and note ; 4 Kent, Com. 506. 504 REMAINDERS. CHAPTER LXIII. REMAINDERS — NATURE AND CHARACTERISTICS OP REMAINDERS. § 1526. Definition. 1527. The particular estate. 1528. Remainders distinguished from reversions. 1529. The creation of remainders. 1530. Number of successive remainders. 1531. Remainder-man in esse. 1532. Distinction between vested and contingent remainders. 1533. Illustrations of a vested remainder. 1534. Unbroken continuity of particular estate and remainder. 1535. No remainder after fee-simple. 1536. When remainder takes effect. 1537. In construing limitations courts prefer vested remainders. 1538. Illustrations. 1539. Remainder after fee-tail. 1540. The term "remainder" is not one of art. § 1526. Definition. — A remainder is an estate or interest in lands or tenements to take effect in possession or enjoyment immediately upon the termination of a prior estate which is created at the same time and by the same act or instrument and upon which such first-mentioned estate is made to depend.^ But it is essential to a remainder that there should be a prior estate actually created. Thus where one conveyed a freehold, reserving a prior life-estate to himself, he parted with nothing in the way of a particular estate ; and therefore what he did grant was an estate after the expiration of his own, and not a remainder.^ And it may be added that a remainder-man al- ways takes by jnwchase, and never by descent.^ The court of Vermont, however, in treating of an interest of an heir in his ancestor's estate who shall die indebted, assuming that such i Co. Lit. 143 a ; 2 Bl. Com. 163 ; Fearue, Cont. Rem. 3, and Butler's note ; id. 4 ; Brown v. Lawrence, 3 Cush. 390; Booth v. Terrell, 16 Ga. 20 ; Leslie v. Maishall, 31 Barb. 560 ; Doe ex dem. Poor v. Considine, 6 Wall. 474. 2 Bissell V. Grant, 35 Conn. 297. , 3 Dennett v. Dennett, 40 N. H. 504. NATURE AND CHARACTERISTICS OF REMAINDERS. 505 interest is limited to what shall remain after paying the ances- tor's debts, apply to it the term remainder : " A vested remainder is the strongest expression in their favor at all descriptive of their title." ^ § 1527. The Particular Estate. — This prior estate is called the particular one, from particular part or parcel, of which, with tlie remainder, the entire or whole estate is made up. It is this particular estate by which the possession, or the posses- sion and seisin, as the case may be, with which the grantor parts when he creates the limitation, are sustained until the remainder-man is ready to take ; and if there is a break or interval of time between the one and the other, the second estate would be simply a future one, but not in any legal sense a remainder.^ But the interests of the particular tenant and the remainder-man are so independent and distinct, that the former can make no claim upon the latter for improvements made by him upon the estate.^ Nor can he make any agreement which Avill bind the estate of the remainder-man.* § 1528. Remainders distinguished from Reversions. — Both re- versions and remainders are dependent upon a prior particular estate and take effect in enjoyment immediately upon the ter- mination of such estate ; and there can be no remainder where there can be no reversion. But the converse of the proposition is not strictly true. Thus, if a grant be made to A and his heirs so long as a certain tree stands, it constitutes a base or determinable fee, since it assumes that the estate, though a fee, may determine at some time. If it does determine, the estate will come back to him who created it, in the nature of a revei'- sion. But still it is not such an interest as is regarded by law as susceptible of being limited by way of a remainder, because the first estate limited was, in terms, a fee.^ And it may be 1 Langdon v. Strong, 2 Vt. 234, 254. 2 Wms. Real Prop. 197 ; Burt. Real Prop. §§ 28-30 ; Prest. Est. 93 ; Wilkes' V. Lion, 2 Cow. 333, 389 ; Hennessy v. Patterson, 85 N. Y. 91 ; Watk. Conv. 174, 177 n.; 2 Flint. Real Prop. 258. 3 Thurston v. Dickinson, 2 Rich. Eq. 317. * Hill V. Roderick, 4 Watts & S. 221. » 2 Flint. Real Prop. 265; 1 Eq. Cas. Ahr. 186. The reader should hear in mind that the propositions in the text relate to the common law rules of prop- erty'. The limitation of future estates by way of executory devises and springing and shifting uses remains to he considered. 506 REMAINDERS. stated as a general proposition, that if a fee be given by way of a vested limitation, but a determinable one, and a remainder be limited after it, such remainder can only take effect as an executory estate.^ § 1529. The Creation of Remainders. — [The reader is pre- sumed to understand, what has already been explained at length, the method of creating an estate for years in prcesenti, as well as the creation of an estate of freehold in prcescnti by livery of seisin, and the imperative feudal dogma of the com- mon law that a distinct independent freehold estate in land cannot be created to commence m futuro.~\ In order practi- cally to apply these principles to the theory of creating future estates in land, whose possession and enjoyment are post- poned for a longer or shorter time, let -it be supposed that the owner of a fee-simple wishes to create an estate in favor of A B for twenty years. To effect this, after entering into a proper contract, he simply puts A B into possession of the land, but does not part with his own seisin, though he does with his possession. So far as the seisin is concerned, A B is his bailiff, acting for him in keeping it.^ Suppose, instead of simply creating this estate in A B, the owner has at the same time, and by the same deed, given to C D all his estate in the land except what was given thereby to A B, and A B has accepted this deed as the grant under which he is to hold his estate. He will in this way have assented to act for C D, as he would have acted for the owner in the former case sup- posed, so far as holding the seisin unimpaired for him as such owner, since that, in effect, was the condition upon which alone he entered upon his estate. The grantor, in the latter case, will have parted with his entire seisin, and transferred it to C D, through the agency of A B, when the latter has taken posses- sion, in carrying into effect the grant in his own favor, and, ipso facto, become for that purpose the bailiff of C D.^ In the cases above supposed, the estate in A B might as easily have been for life as for years, except that to make it for life there 1 Doe ex clem. Herbert v. Selby, 2 Barn. & C. 930 ; Hennessy v. Patterson, 85 N. Y. 91. 2 Brodie v. Stephens, 2 Jolina. 289. 8 Co. Lit. 143 a ; 2 Flint. Real Prop. 259; Watk. Conv. 175, 177, Coventry's note ; Wms. Real Prop. 206 ; a7ite, § 109 e^ seq. NATURE AND CHARACTERISTICS OF REMAINDERS. 507 must have been a livery of seisin to the first taker, and the seisin and possession would both thereby have been intrusted to him, in order to enable him to meet the requirements of the feudal tenure. But as the tenant takes by a deed which ex- pressly recognizes a concurrent ownership of the land in an- other, out of whose larger estate his own has been derived as a ])art of the same, he is, by implication of law, regarded as holding in accordance with and not adversely to the title of the owner of the general fee, and as holding the seisin of the estate for the common benefit of both, according to their re- spective interests and estates. Consequently, for the purpose of keeping alive that entity, the seisin, the tenant acts for the general owner, until the same actually passes to the latter on the termination of the estate of the former.^ In one of the cases above supposed, the general owner having only parted with a term of years or a life-estate to A B, the balance of the fee remains in him, to which the law gives the name of a reversion. In the other, when he parted with the life-estate or the term to A B, he, at the same time and by the same deed, parted with all besides that to C D, who thereby acquired what thus remained of the entire estate, except what was granted to A B ; and to this the law gives the name of a remainder. § 1530. Number of Successive Remainders. — This subdivision might be carried still farther, and with the same effect ; as if, instead of an estate to A B for years or life, and then to C D in fee, it had been to A B for years or life, and then to J S for life or years, and then to C D in fee, limiting any number of remainders, one after the other, provided the last one only was a fee-simple ; for when the fee-simple had been given to any one, there would be nothing further which the grantor could give.2 And the remainder-man in such case takes by the deed, though a stranger thereto.^ This may seem to be occupying too much space in illustrating what is, in fact, so simple a rule of law. But it is hoped that it will aid in defining a remainder, and simplifying what must necessarily at times become com- plex, and difficult of application. 1 Wms. Real Prop. 206. 2 Wins. Real Prop. 208 ; Fearne, Cent. Rem. 4, Butler's note. 8 Phelps V. Phelps, 17 Md. 134. 508 REMAINDERS. § 1531. Remainder-man in esse. — Provided the estate be so limited that there is always some one in esse who holds the seisin, there is no violence done to the rules of the common law, whether the one who is to take the secondary estate is in esse or ascertained at the time of creating the estate, or be- comes in esse or is ascertained afterwards, provided he be ready to take the seisin the instant the estate with the seisin in the first taker determines by its natural limitation. Thus, an es- tate might be to A for years or for life, with a remainder to B in fee who is a known person in esse, or to A for life, remainder to the oldest son of B in fee, though B at the time of creating the estate had no son, and the remainder might be in suspense until B died or had a son. But, in the latter case, A's estate must obviously be a freehold, in order to his keeping the seisin, until there shall be a remainder-man ready and capable to take it ; and this A cannot do if his interest is only a chattel one. § 1532. Distinction betTween Vested and Contingent Remain- ders. — The first of these supposed cases presents what is known as a vested remainder. The latter exemplifies what are called contingent remainders. The broad distinction between vested and contingent remainders is this : In the first, there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the ex- piration of the existing particular estate, and whose right to such remainder no contingency can defeat.^ In the second, it depends upon the happening of a contingent event whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have deter- mined, so that the estate in remainder will never take effect.^ Among the definitions of a vested remainder is the following : " When a present interest passes to a certain and definite per- son to be enjoyed infuturoP ^ Preston says : " It is the present 1 Brown r. Lawrence, 3 Cush. 390, 397 ; Leslie v. Marshall, 31 Barb. 564 ; Croxall V. Shererd, 5 Wall. 288. 2 2 Cruise, Dig. 204 ; Price v. Sisson, 13 N. J. Eq. 176 ; Hawley v. James, 5 Paige, 318, 466; Williamson v. Field,' 2 Sandf. Ch. 553; Moore v. Lyons, 25 Wend. 144 ; Leslie v. Marshall, 31 Barb. 564. 3 Doe d. Poor v. Considine, 6 Wall. 474-476. The possibility that the per.son to whom the remainder is given may die in the life of the life-tenant does not make NATURE AND CHARACTERISTICS OF REMAINDERS. 509 capacity of taking effect in possession, if the possession were fallen." i § 1533. Illustrations of a Vested Remainder. — A grant to W. for life, and at her decease to be and become the proi)erty of lier children and their legal representatives, is a present vested remainder in her children ; and one of them having died in W.'s lifetime, his share went to his heirs.^ So a devise to A for life, remainder to his children, and if either shall have died before A's death, leaving issue, such issue to take the parent's share, was held a vested remainder in the children.^ In another case, a devise to A for life, and at her death to her oldest son, if" she have one. She then had a son living, who was living at the testator's death ; and it was held to be a vested remainder, since the contingency only related to a state of things existing at tes- tator's death.^ So, where, by a marriage settlement, an estate was to C during her life, with a power of appointment, and then to the child or children of C in fee, but if C dies leaving issue, and such issue should die before attaining majority, then, from and after the decease of such issue to, etc. C died, leaving three children without having made an appointment, and two of them lived to be of age : it was held to be a vested remainder in the three as tenants in common.^ § 1534. Unbroken Continuity of Particular Estate and Remain- der. — Whether vested or contingent, it is essential to a re- mainder, for the reasons above stated, and is an imperative rule of law, that it should take effect immediately on the deter- mination of the prior estate, the particular estate and remain- der together forming one continuous ownership. Otiierwise, instead of being an estate, it would be a mere contract for an the remainder contingent, for it is certain that the remainder nnght take effect npon the termination of the life-estate at any time. Kemp v. Bradford, 61 Md. 330 ; McArthur v. Scott, 113 U. S. 430 ; Weston v. Weston, 125 Mass. 268 ; Moore v. Lyons, 25 Wend. 119, 144 ; Commonwealth v. Hackett, 102 Penn. St. 505. But cotitra, Hinton i;. Milburn, 23 W. Va. 166. See post, § 1541. 1 1 Prest. Est. 70. See Moore v. Lyons, 25 Wend. 119 ; Blanchard v. Blan- chard, 1 Allen, 227. 2 Gourley v. Woodbury, 42 Vt. 395 ; Commonwealth v. Hackett, 102 Peun. St. 505. 3 Hill V. Baron, 106 Mass. 578. * Gardiner v. Guild, 106 Mass. 25. ^ Inches v. Hill, 106 Mass. 575. 510 REMAINDERS. estate to take effect at a future time ; and if this was a free- hold, it could not be created to commence in that manner.^ Consequently, no remainder can be created without a particular estate to suppoi't it ; and it must be so limited as to take effect immediately on the regular and natural determination of this prior estate, and not so as to abridge it.^ And for the reasons stated, this particular estate must, in case of a contingent re- mainder, be one of freehold.^ Although at common law, if this particular estate was by any means defeated, or had expired before the contingent remainder vested, the latter must have failed altogether, this is now corrected by statute in England, and in most if not all the United States, though this does not affect the manner of creating this class of remainders originally.^ § 1535. No Remainder after Fee-simple. — From the doctrine above stated, that the particular estate and remainder form to- gether when united but one estate of the extent or duration of the two, it follows, that, while ever so many remainders in suc- cession may be carved out of a fee-simple if each is less than a fee, no remainder can be limited after a fee ; for when a fee has once been created, there can be nothing left by way of remain- der to give away. Nor does it make any difference that this fee is a qualified one ; for so long as it exists it is deemed to be indefinite in its duration, and no remainder can be expectant upon it.^ It has accordingly been held, that, if an estate is given to one with a full and absolute power of control and disposal, there can properly be no remainder limited after his estate, though this w^as in terms a contingent one. Thus, where the devise was to A and his heii's, and if he should die and leave no heirs, what estate he should leave was devised to J. S., it was held that the devise to J. S. was void, from the im- 1 1 Prest. Est. 93 ; 2 Flint. Real Prop. 263 ; Doe d. Poor v. Considiue, 6 Wall. 474. 2 1 Prest. Est. 91 ; Hennessy v. Patterson, 85 N. Y. 91. * Watk. Conv. 175, n. 181 ; Wms. Real Prop. 224 ; Doe d. Poor v. Considine, supra. * Stat. 8 & 9 Vict. c. 106, § 8 ; Wms. Real Prop. 233, Rawle's note. See note at the end of chapter Ixviii. 5 Wimple V. Fonda, 2 Johns. 288 ; Co. Lit. 18 a, 143 a ; 2 Flint. Real Prop. 257 ; Willion v. Berkley, Plowd. 235; Seymour's case, 10 Rep. 97 ; Fearne, Cont. Rem. 308. NATURE AND CHARACTERISTICS OP REMAINDERS. 511 plied power of disposal of the estate given to the first devisee.^ Though a similar devise in England has heen held good as an executory devise to J. S. ; as where the estate was to A and his heirs, but if he died without leaving issue, " and he shall not have disposed or parted with " the estate, then over, it was held to be subject to A's disposal by deed during his life, but not after his death by will ; and he having failed to convey it by deed, the devise over was held to be good.^ It was early decided, that upon a devise to A and his heirs, so long as J. S. had issue, and, after the death of J. S. without issue, remainder over to another, the devise of the remainder was void, as the first taker had a fee.^ § 1536. Remainders take Effect at the Natural Termination of the particular estate. They cannot take effect in derogation of, or in substitution for, the prior estate. But it is competent to create by devise an estate in one and his heirs, and yet so limit it, that, upon the happening of some condition or contin- gent event, his estate shall cease, and go over to another. Now, the first cannot be a particular estate, for it is in its terms a fee ; and if the condition or event do not happen, it will forever remain a fee. The second cannot be a remainder, because it is not to take effect at the natural determination of the first, for, that being a fee, such a determination could never happen ; but it comes in and destroys or defeats the first estate before its natural expiration, and becomes substituted in the place of the other. Nor is there a conditional estate at common law in the first taker ; for if there was, no one but the heirs or devisees of the devisor could take advantage of it, and then only by regaining the original estate by entry, which would not go over to the second devisee named, but remain in the original owner or his heirs. The courts therefore hold, that, though an estate thus limited cannot take effect as a remainder, it shall be held by the first taker as a conditional limitation ; that is, his estate, 1 Ide V. Ide, 5 Mass. 500 ; Jackson d. Livingston v. De Lancy, 13 Johns. 5.57 ; Atty.-Gen. v. Hall, Fitzg. 314 ; McLean v. Macdonaid, 2 Barb. 534 ; Kelly v. Mains, 135 Mass. 231 ; Damrell v. Haitt, 137 Mass. 218. But if the power of dis- posal is limited, aliter. Whitconib v. Taylor, 122 Mass. 243, and other cases, /30S^, § 1770. 2 Doe d. Stevenson v. Glover, 1 C. B. 448. See Andrews v. Roye, 12 Rich. 544. 3 1 Eq. Gas. Abr. 185. See also 2 Cruise, Dig. 203 ; Bowman v. Lobe, 12 Rich. Eq. 271. 612 REMAINDERS. though nominally a fee, is limited in its duration by the hap- pening of the condition or contingent event ; that as soon as that happens, if at all, his estate ceases, and then the residue of tiie fee passes like a remainder over to the devisee, who, by the devise, is to take upon the happening of such event.^ § 1537. In construing Limitations Courts prefer Vested Remain- ders. — A limitation is never construed as an executory devise, when it is capable of taking effect as a remainder ; nor is a remainder ever deemed to be a contingent one when it can be construed to be vested, within the intention of the one who creates it.^ Moreover, the law holds that estates vest at the earliest possible period, unless there is a clear manifestation of an intention on the part of the testator to the contrary.^ A remainder to an unborn child becomes vested while he is en ventre sa mere.^ § 1538. Illustrations. — There was a devise to A for life, remainder to his children then living, and the lawful issue of such as had deceased, their heirs and assigns. For want of such children, there was a devise over to the right heirs of the testator. A died unmarried ; and the question was as to the time to which reference was to be had in determining who were to take as heirs of the testator, — his death, or the death of A ; and it was held to be those who were his heirs at his death. It was held to be a contingent remainder, with a double aspect, to A's children in fee if he had any ; if he had none, to who- ever were testator's heirs at his death, unless otherwise clearly 1 Fearne, Cont. Rem. 3, 407, and Butler's note, 10 ; Watk. Conv. 179, Coven- try's note, 204; Brattle Sq. Ch. u. Grant, 3 Gray, 149; Hennessy v. Patterson, 85 N. Y. 91 ; Watk. Descent {2d ed.), 248; 2 Cruise, Dig. 238 ; 1 Prest. Est. 91; ( 'ogan 11. Cogan, Cro. Eliz. 360 ; Pells v. Brown, Cro. Jac. 590 ; 2 Fearne, Cont. Rem. Smith's ed. §§ 158-160 ; Horton v. Sledge, 29 Ala. 495, 496. 2 Blanchard v. Blancliard, 1 Allen, 225 ; Teele v. Hathaway, 129 Mass. 164, 166 ; Darling r. Blanchard, 109 Mass. 176, 177; Johnson v. Valentine, 4 Sandf. 36 ; Manderson v. Lukens, 23 Penn. St. 31 ; Doe d. Herbert v. Selby, 2 Barn. &C. 930 ; Leslie v. Marshall, 31 Barb. 566. 3 Doe d. Poor v. Considine, 6 Wall. 475 ; Hinton v. Milburn, 23 W. Va. 166. So where a testator provided that the residue of his estate should be divided "among my legal heirs under the laws of the State of Marj'land in the same way that it would without a will," and that a legac}' should go to "such person or 2>ersons as would by the now existing laws of the State of Maryland be entitled to take an estate in fee-simple in lands by descent from me," it was held that in both cases the gift vested at the decease of the testator. Crisp v. Crisp, 61 Md. 149. * Crisfield v. Storr, 36 Md. 129. NATURE AND CHARACTERISTICS OF REMAINDERS. 513 expressed.^ The following case may illustrate tlic difficulty there sometimes is in determining whether a given limitation of a future estate is a remainder or not. T. G. by will gave to his son S. H. G. the use of an estate, " also to his lawful chil- dren ; and in case of his death without children, then to be equally divided between his five daughters," " and their heirs forever." The wife of S. H. G. was enceinte wlien the testator died, but had no children then born. She subsequently had four who were living at the death of S. H. G. Ritchie, C. J., in an able and elaborate opinion, reversed that of the Master of the Rolls, who held the devise to be to S. H, G. or his chil- dren in fee, and held it to be a life-estate in S. H. G. , with a remainder to his children. In either case, the daughters would have taken by way of executory devise had S. H. G. died with- out children. And the first devise being to S. H. G., " also to his lawful children," might readily have led any one to the same conclusion with the Master of the Rolls ; and the Chief Justice remarks in giving his opinion, " The case is by no means free from difficulties." ^ § 1539. Remainder after Fee-tail. — The effect of the fore- going doctrine would be, that, had estates-tail remained as they were at common law, there could never be a remainder limited upon the failure of issue in the tenant in tail. Such estates were deemed conditional fees, determinable only upon the donee's dying witliout issue. But since the statute de donis turned the estate of the tenant in tail theoretically into an estate for life, whicli is certain to have a natural termination at his death, it is entirely compatible with the rules of law to limit a remainder after his death, to take effect if he dies without issue.^ § 1540. The Term " Remainder " is not one of art, which it is necessary to employ in creating an estate in expectancy, such as has been described. Any form of expression indicating the inten- tion of the grantor or devisor to do this would be sufficient.* 1 Bnzby's App., 61 Penn. St. Ill, 117 ; Minot v. Tappan, 122 Mass. 535 ; Dove V. Tarr, 128 Mass. 38 ; Abbott v. Bradstreet, 3 Allen, 587. 2 Gonrley V. Gilbert, 1 Hannay (N. B.), 80. 8 Willion V. Berkley, Plowd. 235 ; Wilkes v. Lion, 2 Cow. 333, 392 ; Hall v. Priest, 6 Gray, 18. 4 2 Cruise, Dig. 203. VOL. II. — 33 514 VESTED REMAINDERS. CHAPTER LXIV. VESTED REMAINDERS. § 1541. Definition. 1542. Vesting in interest, vesting in possession. 1543. " Present capacity" explained. 1544. Remainders construed as vested rather than contingent. 1545. Vested remainder to class some of whose members not in esse. 1546. Alienation of vested remainders. 1547. Defeat of particular estate defeats remainder. 1548. Exceptions to foregoing rule. 1549. No tenure between remainder and particular estate. 1550. Remainders must be limited in a j)rescribed order. 1551. Of contingent remainders becoming vested. § 1541. Definition. — A vested remainder is one the owner of which has the present capacity of taking tlie seisin in case the particular estate were to determine. ^ But no degree of uncertainty as to the remainder-man's ever enjoying his re- mainder will render it contingent, provided he has, by the limi- tation, a present absolute right to enjoy the estate the instant the prior estate shall determine. Thus, if an estate is given to A for years, remainder to B for years or life, remainder to C for life, each of these persons being alive and having a per- fect right to the land in the order named, B or C, for instance, being only postponed in the enjoyment of his estate till the preceding tenant's term or li.fe shall end, has a vested re- mainder. And yet C may die before B's estate, or B before A's estate, shall be determined, so that neither may ever, in fact, enjoy any benefit or estate whatever in the land.^ On 1 Ante, § 1532. 2 Parkhurst v. Smith, Willes, 338 ; AVatk. Conv. 173, Coventry's note ; 2 Flint. Real Prop. 267; Wms. Real Prop. 207; Fearne, Cont. Rem. 216 ; Williamson i-. Field, 2 Sandf. Ch. 533 ; Manderson v. Lukens, 23 Penn. St. 31. See ante, § 1532, note 2. The fact that the widow, to whom a life estate is given by will, has a right to renounce the will and elect to take her share of the estate, does not ren- der the remainder limited over after the life-estate contingent. Marvin v. Led with, 111 111. 144. VESTED REMAINDERS. 515 the other hand, had the estate to C been in fee instead of for life, though he might not have lived to enjoy it, it would de- scend to his heirs, who would take in his place ; or, whether in fee or for a less estate, he might have conveyed it in his lifetime by deed, and his grantees would take the same rights in respect to it that he himself possessed.^ § 1542. Vesting in Interest, vesting in Possession. — An estate is accordingly said to be vested in one in possession when there exists in his favor a right of present enjoyment. It is vested in interest when there is a present fixed right of future enjoyment. 2 Thus a devise to A for life, remainder to B in fee at his death, would be a vested remainder, if B is in esse ; and if he die before A, the estate, at A's death, would go to his [B's] heirs.^ In this sense, therefore, a vested remainder is, to all intents, an estate commencing in prccsenti^ though to be enjoyed infuturo.^ § 1543. Present Capacity explained. — " The present capacity of taking effect in possession, if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent." ^ By capacity^ as thus applied, is not meant simply that there is a person in esse interested in the estate, who has a natural capacity to take and hold the estate, but that there is further no intervening circumstance, in the nature of a precedent condition, which is to happen before such person can take. As, for instance, if the limitation be to A for life, remainder to B, B has a capacity to take this at any moment when A may die. But if it had been to A for life, remainder to B after the death of J. S., and J. S. is still alive, B can have no capacity to take till J. S. dies. When J. S. dies, if A is still living, the remainder becomes vested ; but not before. 1 Wms. Real Prop. 207 ; 2 Cruise, Dig. 203, n. 2 Watk. Conv. 173, Coventry's note ; 4 Kent, Com. 202 ; Fearne, Cont. Rem. 2 ; Marshall v. King, 24 Miss. 90. 3 Allen V. Mayfield, 20 Ind. 293. * 2 Flint. Real Prop. 259 ; Pearce v. Savage, 45 Me. 101. 6 Fearne, Cont. Rem. 216 ; Co. Lit. 265, note 213. See 2 Greenl. Cruise, Dig. 210, n. ; Brown v. Lawrence, 3 Cush. 390, 397 ; Croxall v. Sherard, 5 Wall. 288. Seeajite, §§ 1532, 1579. 516 VESTED REMAINDERS. And as the common law stood, if A died in the life of J. S., the remainder in B would fail, although he was then alive.^ § 1544. Remainders construed as vested rather than con- tingent. — From the fact that, while a remainder is contingent by reason of the person who is to take it not being ascertained, it is not capable of alienation, as well as because, at common law, it was always possible to defeat such a remainder by destroying the particular estate before the remainder vested, courts have always been inclined to construe the limitation of a remainder as a vested one, wherever the terms in which it is created will admit of such construction.^ Thus, upon a devise to A for life, remainder to the surviving children of J. S., it is obvious that, in terms, it is equivocal whether the surviving relates to the death of the testator or of A. If to the latter, the remainder must be contingent, since no one can tell who will be such survivors until the death of A. Whereas, if the term relate to the testator's death, and J. S. then have children, the remainder is a vested one, since there is then an ascertained person in esse, capable of taking the estate in prcesenti at any moment. And accordingly courts construe an estate thus limited to be a vested remainder.^ Another 1 1 Prest. Est. 70 ; Co. Lit. 265, note 213 ; 2 Cruise, Dig. 210 ; 2 Crabb, Real Prop. 966. 2 Dingley v. Dingley, 5 Mass. 535, 537 ; Doe d. Comberbach v. Perryn, 3 T. R. 484 ; Doe d. Long v. Prigg, 8 Barn. & C. 231; Doe d. Barnes v. Provoost, 4 Johns. 61 ; Moore v. Lyons, 25 Wend. 119 ; Boraston's case, 3 Rep. 20 ; DufBeld v. Duf- field, 1 Dow & C. 311 ; Tud. Lead. Cas. 680 ; ante, § 1537 ; Den d. Hopper v. Deraarest, 21 N. J. 525 ; Fay i;. Sylvester, 2 Gray, 171; Croxall v. ShererJ, 5 Wall. 287; Bigley v. Watson, 98 Tenn. 353 ; s. c. 39 S. W. Rep. 525 ; Grimmer v. Friede- rich, 164 111. 245 ; s. c. 45 N. E. Rep. 498. 3 Doe d. Long v. Prigg, 8 Barn. & 0. 231 ; Moore v. Lyons, 25 Wend. 119 ; Leroy v. Charleston, 20 S. C. 71 ; Chew's App., 37 Penn. St. 23 ; Bailey v. Hoppin, 12 R. L 560 ; Eldridge v. Eldridge, 9 Gush. 516 ; Colhy v. Duncan, 139 Mass. 398 : Manderson v. Lukens, 23 Penn. St. 31 ; Buck v. Laiitz, 49 Md. 439. See post, § 1545. Where the devise was to A, B, C, children of D, and such other children of D as shall then (i. e. at the date of the expiration of the life-estates) be living, and their heirs and assigns, it was held that the children named and those not named (if any) constituted a class, all members of which could not be ascertained until the expiration of the life-estates, and that the vesting of the title, legal or equitable, in possession or in right, in those of that class who were named as well as in those who were not named, was contingent upon their surviving the tenants for life. Smith V. Rice, 130 Mass 441. If the contingency, e. g. such as attaining majority or surviving the life-tenant, attaches to the possession of the property devised, and VESTED REMAINDERS. 517 illustration of this proposition is found in a later case, where the devise was to A for life, with a devise over of all the property, real and personal, whicli might be left at A's death to the testator's four children, by name, with a provision, that, if any of the four children died before A, the property should be equally divided among the survivors, " except tjjcy should leave issue," and in that case to go to the issue. It was held to be a vested remainder in the four children. If it had been construed to be a devise to such of them as survived A, it would have been a contingent remainder. It was held, more- over, to be a devise in fee, subject to be divested upon the happening of a condition subsequent, with a limitation over upon the happening of that contingency, which latter limita- tion was by way of executory devise.^ But where the devise was in the words, " Should my wife marry or die, the land then shall be divided among my surviving sons," the moment of survivorship was held to be fixed at the death or marriage of the wife ; and, of course, until that happened, it was con- tingent who the persons were to be who could take as " surviv- ing sons." 2 It was accordingly held that a limitation to a wife, with a remainder to her children surviving, was a contin- gent remainder to the children.^ On the other hand, where the devise was to A until B arrived at the age of twenty-one not to the gift, the interest of the donee is vested. Peterson's App., 88 Penn. St. 397; Daniels v. Eldridge, 125 Mass. 356 ; Wright v. White, 136 Mass. 470 ; Hersee V. Simpson, 154 N. Y. 496 ; s. c. 48 N. E. Eep. 890 ; Byrne v. France, 131 Mo. 639 ; s. c. 33 S. W. Rep. 178. 1 Blanchard v. Blanchard, 1 Allen, 226. See Smither v. Willock, 9 Ves. 233 ; Doe d. Roake v. Nowell, 1 Maule & S. 327 ; Bentley v. Long, 1 Strobh. Eq. 43 ; Phillips V. Phillips, 19 Ga. 261 ; Johnson v. Valentine, 4 Sandf. 36 ; Yeaton v, Roberts, 28 N. H. 465 ; Ross v. Drake, 37 Penn. St. 373 ; Abbott v. Bradstreet, 3 Allen, 589. But where property was given to one for life with full power of dis- posal, by deed or will, and then remainder to another, it was held that the remain- der was contingent upon some estate remaining undisposed of by the life-tenant. Taft V. Taft, 130 JIass. 461. This case seems to hold that a power of alienation in the life-tenant makes a remainder contingent. But see post, § 1579. 2 OIney v. Hull, 21 Pick. 311 ; Denny v. Kettell, 131 Mass. 138. But "then" often means "in that event," and is not merely limited to time. Lerned v. Sal- tonstall, 114 Mass. 407. 3 Matter of Ryder, 11 Paige, 185. See Smith v. Rice, 130 Mass, 441 ; Robinson V. Palmer, 90 Me. 246 ; s. c. 38 Atl. Rep. 103. But see Thorington v. Thorington, 111 Ala. 237 ; s. c. 20 So. Eep. 407, which held it to be a vested remainder sub- ject to be divested. 518 VESTED REMAINDERS. years, and then to B in fee, it was held to be an absolute devise of the estate to B, but postponing the enjoyment of it to his arriving at age. And being vested in him, if he were to die before that time it would descend to his heirs. ^ A devise to trustees to hold for a daughter during her life, and, at her death, to convey the estate to her children, was held to create a vested remainder, the enjoyment of the estate being post- poned to the death of the daughter.^ § 1545. Vested Remainder to Class some of whose Members not in esse. — There is, however, a class of cases where a re- mainder is regarded as vested, although all the persons who may take are not ascertained or in esse, and cannot be until the happening of some future event. And that is where there is a devise of a remainder to a class of which each member is equally the object of the testator's bounty, as to " the chil- dren" of a person, some of whom are living at the testator's death. As, for instance, upon a devise to A for life, remainder to the children of J. S., if J. S. has children at the testator's death they would take a vested remainder ; and if he were to have other children during the life of A, and before the remain- der was to take effect in possessioti, it would open and let in the children born during A's life, who would take shares as vested remainders.^ And a like rule was applied in a case where a conveyance was made to a mother and her children and their heirs. It was held to let in after-born children, on the ground 1 Doe d. Morris v. TJndenlown, "Willes, 293 ; Young v. Stoner, 37 Penn. St. 105 ; Danforth v. Talbot, 7 B. Mon. 623 ; Wright v. White, 136 Mass. 470. 2 Darling v. Blanchard, 109 Mass. 176. 8 Doe d. Long v. Prig, 8 Barn. & C. 231 ; Doe d. Barnes v. Provoost, 4 Johns. 61 ; Ee Brown, 93 N. Y. 295 ; Monarque v. Monarque, 80 N. Y. 320 ; Ballard v. Ballard, 18 Pick. 41 ; Viner v. Francis, 2 Cox, Ch. C. 190 and notes ; Tud. Lead. Cas. 644, 652 ; 2 Brown, Ch. 658 ; Swinton v. Legare, 2 M'Cord, Ch. 440 ; Myers V. Myers, 2 M'Cord, Ch. 214, 257; Jenkins v. Freyer, 4 Paige, 47 ; 2 Jarin. AVills, 75 ; Dingley v. Dingley, 5 Mass. 535 ; Wight v. Shaw, 5 Cush. 56, 60 ; Parker v. Converse, 5 Gray, 338, 339 ; Wright v. White, 136 Mass. 470 ; Gibbeus v. Gibbens, 140 Mass. 102 ; Yeaton v. Roberts, 28 N. H. 466 ; Carroll v. Hancock, 3 Jones (N. C), 471 ; Doe d. Poor v. Considine, 6 Wall. 475 ; Worcester v. Worcester, 101 Mass. 132, where the time of vesting was limited to a year; that is, in such children as should be born within a year after testator's death. Anthracite Savings Bk. i'. Lees, 176 Penn. St. 402 ; s. c. 35 Atl. Rep. 197 ; Hinkson v. Lees, 181 Penn. St. 225 ; s. c. 37 Atl. Rep. 338 ; Lariverre v. Ruins, 112 Mich. 276; s. c. 70 N. W. Rep. 583. VESTED REMAINDERS. 519 that it was a life-estate in the mother, with a remainder to her children. Thouj^h it might well be questioned whether the doctrine applies where there are persons in esse to take, and nothing in the deed indicates an intent to make provision for others not in esse, or to postpone its vesting.^ The above distinction is illustrated in the case cited below, where the grant was to A for life, and, at her death, to her children, where the grantor obviously referred to the death of the first taker as the time when the persons who should take the remainder should be ascertained ; and it was accordingly held, that it opened and let in after-born children. And so imper- ative was this rule regarded, that when the guardian of the children then alive sold the remainder by license of court, it was held not to affect the title to their shares in the after-born children.2 § 1546. Alienation of Vested Remainders. — One property of a vested remainder is, that it may be aliened by any form known to the law which does not require a formal livery of seisin, or passing the actual possession. But there is the same restric- tion as to conveying a freehold to commence in futuro, when applied to remainders, as applies to other estates.^ Such remainder may be devised, assigned, or limited over, and made subject to contingencies and trusts, at the will of him in whom it is vested ; * and though only a right of a future enjoyment, it is an estate in prcesenti.^ § 1547. Defeat of Particular Estate defeats Remainder. — The particular estate and remainder must, as heretofore defined, constitute a continuous ownership in succession, and be parts of the same inheritance ; they must commence and pass out of the grantor by the same act and at the same time ; and if for any cause the particular estate is void or is defeated ab initio, as by the entry of the grantor for the breach of some condition, 1 Coursey v. Davis, 46 Penn. 25. 2 Adams v. Ross, 30 N. J. 513 ; Graham v. Houghtaling, id. 558. 8 Watk. Conv. 182, and Coventry's note ; 1 Prest. Est. 75; Blanchard v. Brooks, 12 Pick. 47, 65. This latter restriction would not apply where, as in Ohio, one may by statute convey an estate in freehold to commence in futuro. Walk. Am. Law, 286 ; Pearce v. Savage, 45 Me. 101. * Glidden v. Blodgett, 38 N. H. 74. 6 Jackson v. Sublett, 10 B. Mon. 467. 520 VESTED REMAINDERS. it leaves the remainder without support, and this becomes a mere estate to commence in futuro, which, if a freehold, fails altogether.! Thus, an heir assigns to his mother, widow of the ancestor from whom he claims by descent, a part of the estate as dower, and at the same time grants the dower-land from and after her death to A B. This limitation would be void as a remainder, since the widow does not take her title derivatively through the heir and as a part of his estate, but under and by a title independent of his ; so that, instead of the grant to A B being a remainder, it is simply a grant of a freehold, to com- mence when the widow's estate shall determine at her death.^ For this reason, the particular estate that supports the remain- der must be something more than an estate or tenancy at will, for such an interest is not deemed to be a part of the inherit- ance.^ One reason why, where there is a freehold in remainder depending u{)on a particular estate for years, the livery of seisin must be made to such termor for years, is that it may pass from the grantor, and the remainder-man need not be obliged, in order to avail himself of his estate in the premises, to interfere with the immediate possession of the same, which is exclusively in the termor.* The remainder-man must accord- ingly wait until the particular estate has regularly determined, and can do nothing to abridge it ; and if, before that time it is defeated altogether, as by an entry by the grantor for condi- tion broken before the remainder-man comes into possession, the estate of the latter fails altogether.^ But where there was a devise to A for life, remainder to B, and A declined to ac- cept the devise, it was held that B took the estate on the death of the testator without waiting for the death of A.^ But where one gave an estate to his wife for life, with a provision that if she marrifed she should foi'feit certain parts of it, with remainder to such of the testator's brother's children as 1 Colthirst !'. Bpjushin, Plowd. 25 ; 2 Flint. Real Prop. 260 ; 2 Bl. Cora. 166. 2 Colthirst V. Bejushin, Plowd. 2.5 ; Park, Dower, § 341 ; ante, § 486. 8 2 Flint. Real Prop. 259 ; 2 Bl. Com. 166 ; ante, § 767. * Lit. § 60 ; Co. Lit. 49 a ; 2 Flint. Real Prop. 262. 6 2 Flint. Real Prop. 263. This proposition applies to the common law. How it may be done by executory devises, or springing and shifting uses, will be shown hereafter. 6 Yeaton v. Roberts, 18 N. H. 459. VESTED REMAINDERS. 521 should be alive at her death, and she did marry, it was held that the part thus forfeited and lost by her went to testator's heirs at law, to hold until her decease ; as, by the express terms of his will, that was the time at which the devise as to the remainder was to take effect.^ § 1548. Exceptions to Foregoing Rule. — There are one or two exceptions to the rule, that, if the original seisin of the par- ticular estate on which the remainder depends be defeated and avoided, the remainder itself will Aiil, which apply as well to vested as to contingent remainders, and may be properly noticed liere. Thus, for instance, if a lessor were to make a lease for life, and then disseise his own lessee, and make a second lease to another during the life of his first lessee, with a remainder over to a third person in fee, though the first lessee, by an entry, would defeat the seisin of the second lessee, yet the lessor would not be at liberty so far to take advantage of his own wrong as to avail himself of this circumstance in defeating the remainder in fee which he had himself created, though the livery which sustained it was a wrongful one as against his first lessee. So if the particular estate be to A, an infant, for life, remainder to B in fee, and A, when he comes of age, disaffirms the estate in himself, it will not defeat the remainder which had become once vested by a good title.^ § 1549. No Tenure between Remainder and Particular Estate. — There is no relation of tenure between a remainder-man and the tenant of the particular estate, since they both derive their interests or estates from the same source, and not one from the other.^ A remainder-man may, therefore, have a separate ac- tion against a stranger for an injury to the inheritance ; and for the injury to the immediate enjoyment of the estate, the tenant for life may have his own appropriate action.* Nor is the possession of the tenant for life adverse to the remainder- man, so as to affect the right of the latter to make a valid con- veyance.^ § 1550. Remainders must be limited in a Prescribed Order. — In order that successive estates in the same land should con- 1 Augustus i;. Seabolt, 3 Met. (Ky.) 161. 2 Co. Lit. 298 a. 3 Wms. Real Prop. 205. * Van Deusen v. Young, 29 N. Y. 9. 6 Grout V. Townseud, 2 Hill, 554. 522 VESTED REMAINDERS. stitute remainders in respect to eacli other, they must be so limited as to come into possession successively one after the other in some prescribed order, the owner of the one waiting to enter until the estate of the other shall have been deter- mined.^ But it is unimportant what this order is, provided that a fee other than a fee-tail does not precede another of the estates limited. Thus the limitation may be to A in tail, re- mainder to B for life, and to C for years, with a remainder to D in fee. If by death or forfeiture any previous estate fails, the one to whom the next in order is limited will at once come in, and have a right to immediate possession. So that, no matter how numerous these limitations may be, as each is ready thus to come into possession at any moment, they are all re- garded as having a vested remainder,^ because, in the case sup- posed, the successive limitations are to persons in esse ; and the same rule as to the order of succession would apply, though the remainders were what is called contingent. § 1551. Of Contingent Remainders becoming vested. — What- ever may be the distinction between vested and contingent remainders, so long as they remain such, the moment the con- tingency happens on which a remainder depends it becomes a vested one, with the qualities and incidents of such a remain- der. Thus, upon the grant of an estate to A, with a remainder to his children, he having none at the time, the remainder will, of course, be a contingent one ; but the moment he has a child born, the remainder becomes vested as fully as if it had origi- nally been limited to a living child.^ But if there be an interval, however brief, between the determination of the particular estate and the vesting of the remainder, the latter is forever defeated and gone, and the entire estate reverts at once to the donor or grantor who created it.* 1 Wms. Real Prop. 206. 2 "Wms. Real Prop. 207. 3 Doe d. Comerbach v. Perryn, 3 T. R. 484; Wendell v. Crandall, 1 N. Y. 491. * 1 Prest. Est. 217 ; Wms. Real Pro)). 226. CROSS-REMAINDERS. 523 CHAPTER LXV. CROSS-REMAINDERS. § 1552. Definition. 1553. Object of cross-remainders. 1554. How created. § 1552. Definition. — There is a class of remainders known to the law as Cross-remainders, to each of which the same rules apply as if they were independent of each other, al- though there may be a common ownership of the two or more estates out of which they are created. Cross-remainders arise where lands are given in undivided shares to two or more per- sons by the way of particular estates, by such limitations, that, upon the determination of the estate of the first taker in any one of the shares, it remains over to the other grantees or donees named, and the reversioner or ulterior remainder-man is not let into possession till the determination of all the par- ticular estates.^ But, though usual, it is not necessary, in order to create cross-remainders, that the estates should origi- nally have been granted to the several persons in common. The term seems equally applicable to two distinct estates, where one is granted to A and the other to B, with remainder over of A's estate to B on failure of issue of A, and of B's estate to A on a like failure of issue.^ § 1553. Object of Cross-remainders. — The obvious design and intention of such a limitation is, that upon the share of one of the takers failing for want of issue, instead of its re- verting to the original owner, or going at once to the final remainder-man, it shall go to the tenant or tenants of the other parts of the estate, who will hold it in connection 1 Co. Lit. 195 b, Butler's n. 1 ; 4 Cruise, Dig. 298 ; 2 Cnihh, Real Prop. 972; 1 Wms. Saund. 185, note ; 1 Prest. Est. 94 ; Walk. Couv. 189, Coventry's note. 2 1 Prest. Est. 94 ; 4 Kent, Com. 201. 524 CROSS-REMAINDERS. with the parts already in their possession as they before had holden their own parts. And as this is a reciprocal right, operating crosswise, and only depending upon whose part first fails by a failure of issue, the right to take such part upon such a failure is regarded as a remainder, and is treated accordingly. § 1554:. How created. — Such remainders may be limited by deed or by will, and may exist between two or a greater num- ber of persons. They may be raised by express terms, or in a will by implication. But a cross-remainder is never raised by deed without express terms, and proper words of limitation.^ In limiting such interest by the way of cross-remainders, the limitation should be so expressed as to pass not only the origi- nal share of the party, but whatever share or shares shall accrue to him or his issue upon the decease and failure of issue of the others naraed.^ Therefore, where a devise was to sev- eral in fee, in common, with a devise over in case all should die under age, and one of them died in infancy, it was held that his share went to his heir, subject only to be defeated if and when all these devisees should die under age.^ The test in all these cases of the existence of a cross-remainder is, whether, if by deed there is an express limitation, or if by will an express or implied one, that the whole of the estate shall go over, to- gether, in entirety to its final limitation, upon the failure of issue, or in parts as the issue of one or another of the first takers shall fail.* 1 Watson V. Foxon, 2 East, 36 ; AVatk. Con v. 9, Coventry's note ; Co. Lit. 195, note 82 ; Cook v. Garrard, 1 Wms. Saund. 186, n. ; Doe d. Foquett v. Worsley, 1 East, 416. It has been questioned whether there can be cross-remainders to more than two. The subject is discussed bj' Dodridge, J., in Gilbert v. Witty, Cro. Jac. 656, against the position. See also Twisden v. Lock, Anib. 665 ; Wright V. Holford, Cowp. 31 ; Phipard v. Mansfield, id. 799. Whether they may be created by deed, see Cole v. Leviugston, 1 Vent. 224. And see Hall v. Priest, 6 Gray, 18, where cross-remainders were sustained between eight persons. 2 Co. Lit. 195 b, note 82. 3 Fenby y. Johnson, 21 Md. 117 ; 2 Jarra. Wills, 482. * Doe d. Gorges v. Webb, 1 Taunt. 234. CONTINGENT REMAINDERS. 525 CHAPTER LXYI. CONTINGENT REMAINDERS, § 1555. Definition. 1556. Illustrations. 1557. Contingent remainders alienable. 1558. Classification. 1559. First class. 1560. Second class. 1561. Third class. 1562. Fourth class. 1563. Exceptions to the third class. 1564. Remainders of terms for years. 1565. Exceptions to the fourth class. 1566. Vested remainder after contingent. 1567. Case of Napper v. Sanders. 1568. Case of Lethieullier v. Tracy. 1569. Of remainders affected by contingency of prior remainders. 1570. First class of successive remainders. 1571. Second class of successive remainders. 1572. Illustration. 1573. Third class of successive remainders. 1574. Devisor's intention affects such limitations. 1575. Fee with a double aspect. 1576. Same .subject — After limitation necessarily contingent. 1577. Valid remainders after trust estates in fee. 1578. Effect upon remainders of powers of appointment. 1579. Future devise, whether vested or contingent. 1580. Vested remainders upon condition subsequent. § 1555. Definition. — A contingent remainder is one whose vesting or taking effect in interest is, by the terms of its crea- tion, made to depend upon some contingency which may never happen at all, or may not happen within a requisite prescribed time, by reason whereof its capacity of vesting or taking effect in interest may be forever defeated.^ Or, in the language of an- other, it is one " which is limited to a person who is not ascer- tained at the time of the limitation, or which is referred for its vesting or taking effect in interest to an event which may 1 1 Prest. Est. 74 ; 2 Bl. Com. 169. 526 CONTINGENT REMAINDERS. not happen till after the determhiation of the particular estate," ^ or upon the happening of some uncertain and doubt- ful event, or where the person to whom it is limited is not ascertained or yet in being. Until the contingency has hap- pened, the remainder is rather a possildlity in its character than an estate ; although it has become a familiar quality of an estate, to understand and apply which involves much nice learning.2 \^ jg always an executory interest from its very nature,^ § 1556. Illustrations. — Suppose an estate be limited to A for life, remainder to the oldest son of B, who then has no son. The contingency in that case is that of a son being born to B. If he has a son, the moment he is born the remainder becomes vested in him, and ceases to be contingent. If the uncertain event fails to happen at all, the remainder fails from the want of a person to take it when the particular estate determines, and the estate reverts at once to the grantor.* So where there was a devise to a wife for life, and at her death to be divided to and among such of testator's children as should then be living, share and share alike, it was held a contingent remain- der ; if one of these died in her lifetime, his share was lost, although he left a child. The latter took nothing.^ Another instance would be that of an estate to A for life ; and if B out- live him, then to B in fee. There is here no contingency about the person who is to take, but the contingency is in the event of his outliving A ; for if he die before A, though all along ready to take the remainder if it falls in, the remainder as such goes to no one. If A die first, the remainder not only becomes vested in interest but at once in possession.^ Another and famil- iar illustration would be where this estate was limited to A for 1 1 Law Mag. 120 ; Brown v. Lawrence, 3 Gush. 390, 397 ; Fearne, Cont. Rem. 2. The New York statute defines remainders as contingent, " whilst the person to whom or the event upon which they are limited to take effect remains uncertain." Rev. Stat. 1827, tit. 2, art. 1, § 13 ; Lalor, Real Prop. QQ. 2 1 Prest. Est. 75. 8 1 Prest. Est. 63 ; 2 Fearne, Cont. Rem. Smith's ed. § 90. * 2 Bl. Com. 169-171. 8 Thompson v. Ludington, 104 Mass. 193. See also Olney v. Hull, 21 Pick. 311 ; Denny v. Kettell, 135 Mass. 138 ; Colby v. Duncan, 139 Mass. 398 ; Smith v. Rice, 130 Mass. 441. « 2B1. Com. 169-171. CONTINGENT REMAINDERS, * 527 life, remainder to B after the death of A and 11. Here B is a known person in esse, ready at all times to take the remainder. It is certain that A will die, and that H will also. The con- tingency is in the doubt whether H will die before A. If he does, the grant is thereupon converted into a simple limitation of an estate to A for life, with a remainder to B, and is a vested one. But if A dies first, B's remainder is wholly gone, be- cause he can only take it when A and H are both dead ; and by the death of A before H, the particular estate in A determines before B can take, and consequently his remainder fails, and the estate reverts to the grantor.^ And to these may be added, for further illustration, a conveyance in trust for the grantor for life, and after his death to A, when and provided he attain the age of twenty-one years. The interest of A was held to be a contingent remainder until he arrived at that age.^ § 1557. Contingent Remainders alienable. — For a long time a contingent remainder was not supposed to be the subject of alienation, because it was rather a possibility than an estate, like the possibility of an heir at law, for instance, having the estate when his ancestor shall have died.^ But it is now settled, that where the contingency upon which the remainder is to vest is not in respect to the person, but the event, where the i)erson is ascertained who is to take if the event happens, the remain- der may be granted or devised, and the grantee or devisee will come into the place of the grantor or devisor with his chance of having the estate.'* But if the contingency is in the person who is to take, as where the remainder is limited to the heirs 1 2 Bl. Com. 169-171. 2 McGowan v. Way, 1 Met. (Ky.) 418. 3 Wnis. Real Prop. 232. * Putnam v. Story, 132 Mass. 205 ; Whipple v. Fairchild, 139 Mass. 263 ; Hen- nessy v. Patterson, 85 N. Y. 91 ; Kenyon v. See, 94 N. Y. 563. And such an interest will pass to the assignee in bankruptcy or insolvency. Belcher v. Burnett, 126 Mass. 230 ; Minot v. Tappan, 122 Mass. 535 ; Merriara v. Simonds, 121 Mass. 198, 202 ; Duun v. Sargent, 101 Mass. 336. And a court of equity will apply such in- terest to the payment of the owner's debts by selling it. Daniels i". Eldredge, 125 Mass. 356. Even in those States where the old common law rule prevails, a deed of a contingent remainder, if made for au adequate consideration, will be sup- ported in equity as an executory contract for a deed when the estate becomes vested, and such an interest in the contract may be devised by the person who owns it, or will descend to his heirs. Bailey v. Hoppin, 12 R. I. 560. For the statutes on this point, see j^osi, note at the end of chapter Ixviii. 528 CONTINGENT REMAINDERS. of one now alive, there is no one who can make an effectual Grant or devise of tlie remainder.^ And where one settled on herself an estate for life, with a remainder to her children if she had any, and if she had none, then to her heirs at law, it was held that she had a devisable interest in the estate, and that her devisees, at her death without children, took in pref- erence to her heirs, the word " heirs" being here a word lim- iting the reversionary interest in her.^ At common law, before the contingency happened, contingent remainders could not be conveyed except by way of estoppel, though they were assignable in equity, since theoretically such a remainder was not an estate, but a mere chance of having one.^ Under the present statutes, however, if the person who is to take the re- mainder is ascertained, he has what is called a vested interest in a contingent remainder which he may aliene by dced> Where the person is ascertained who is to take the remainder, if it becomes vested, and he dies, it will pass to his heirs,^ or may be devised by him.^ It might always have been released by him to the reversioner, and now by statute he may convey it by deed." And where a deed of such contingent remainder operates by way of estoppel, it operates upon the estate itself 1 "Wms. Real Prop. 231 ;' 1 Prest. Est. 76; Putnam v. Story, 132 Mass. 205; Whipple?;. Fairchild, 139 Mass. 263; post, § 1915. The word "heirs" is .some- times plainly used, meaning "children," and will then be so construed. Haver- stick's App., 103 Penn. St. 394 ; Warn v. Brown, 102 id. 347; Hinton v. Milburn, 23 W. Va. 166. When so used, a limitation to the heirs of one now living would be equal to a limitation to the children, and would be a vested remainder. Ibid. In two cases in Massachusetts it has been held that the word "heirs" of a living person may mean " heirs presumptive," and if there are children, they are the heirs presumptive, and consequently the interest in the remainder vests in them and is alienable, though, as they may die before the death of their ancestor, the remainder would be contingent. Putnam v. Story, 132 Mass. 205 ; Whipple v. Fairchild, 139 Mass. 263. 2 Loring v. Eliot, 16 Gray, 574. 8 Wms. Real Prop. 231, 233 ; 2 Cruise, Dig. 333 ; Fearne, Cont. Rem. 551 ; 1 Prest. Est. 76, 89 ; Robertson t-. Wilson, 38 N. H. 48. 4 Putnam v. Story, 132 Mass. 205, 211 ; Whipple?;. Fairchild, 139 Mass. 263. 6 Roe d.. Noden v. Griffiths, 1 W. Bl. 606 ; 1 Prest. Est. 76 ; Buck i-. Lantz, 49 Md. 439 ; 4 Kent, Com. 262. Contra, De Lassus v. Greenwood, 71 Mo. 371. 6 Roe d. Perry v. Jones, 1 H. Bl. 33 ; 4 Kent, Com. 261 ; Roe d. Noden v. Griffiths, 1 W. Bl. 606; Hennessy v. Patterson, 85 N. Y. 91 ; Kenyon v. See, 94 N. Y. 563. ■? Wms. Real Prop. 231 ; 1 Prest. Est. 89 ; Stat. 8 & 9 Vict. c. 106, § 6 ; a7ite, § 1557 ; post, note at the end of chapter Ixviii. CONTINGENT REMAINDERS. 529 whenever the remainder becomes vested, and the estoppel be- comes an estate in interest. So all persons claiming by, through, or under the maker of such deed would be equally estopped with himself.^ § 1558. Classification. — Mr. Fearne, and after him Mr. Cruise, divides contingent remainders into four classes.^ And though Mr. Cornish and Chancellor Kent disapprove of this classification,^ as it is at least a harmless one which it may be convenient to follow, though not strictly logical or scientific, it will be generally retained here. § 1559. The First Class embraces cases where the particular estate, though less than a fee, and indefinite in its duration, is subject to be determined by the happening of some contingent event, and the remainder is made to depend upon the happen- ing of this event. Thus if a feoffment is made to the use of A until B returns from Rome, and upon his return then over to C, the remainder to C is contingent, because the event upon which it depends may never happen. B may die in Rome, or A may die before B returns ; and in either event, the estate to C is defeated ; in the one, because the event never has hap- pened, and never can ; in the other, because the particular estate in A will have determined before the remainder to C, dependent upon it, can have become vested. This would, of course, exclude those cases where the remainder is limited upon a particular estate definite in its duration, as an estate for life which is sure to determine, and upon the determination of which the remainder is to take effect. It would exclude also cases of conditional limitation as heretofore defined, where the remainder, though contingent, instead of waiting for the regu- lar determination of the particular estate, takes effect upon the happening of an event which curtails or defeats the particular estate before its natural determination, as would have been the case had the limitation in this case been expressly for life to A ; but if B return from Rome, then over to C. The return of B 1 4 Kent, Com. {8th ed.) 263, n. ; Doe d. Christmas v. Oliver, 10 Barn. & C. 181 ; Fearne, Cont. Rem. 365, § 5, and note; Stow v. Wyse, 7 Conn. 214. 2 Fearne, Cont. Rem. 5 ; Boraston's case, 3 Keji. 19. ^ 4 Kent, Com. (8th ed.) 208, n. Blackstone divides them into two classes only : 1st, where the person to take is dubious and uncertain ; 2d, where the event is vague and uncertain. 2 Bl. Com. 169. VOL. II. — 34 530 CONTINGENT REMAINDERS. would still be contingent, and the remainder to C would still take effect, but it would be at the expense or to the destruction of the balance of A's life-estate. ^ And the same would be true of a grant to A and his heirs till B comes back from Rome, and then to C, who would take, if at all, a conditional limita- tion, and not a remainder, because the estate in A is a deter- minable fee which must be defeated by B's return, or C cannot take at all.^ § 1560. The Second Class embraces cases where, though the particular estate is limited so as to determine with certainty, and it is unimportant where or how this is to happen, the re- mainder is made to depend upon the contingency whether a certain collateral event shall happen or not before the partic- ular estate shall have determined. Thus, where an estate is limited to A for life, remainder to B for life, and if B die before A, remainder to C for life, A is sure to die, and his life-estate to determine. But whether C shall have the remainder at his death, depends upon the collateral contingent event whether B shall have died before A or not. If B outlives A, he takes the remainder, and C takes nothing. If B dies first, C's re- mainder becomes at once vested, and he comes in at A's death, as if there had been no limitation to B.^ § 1561. The Third Class includes those cases where the con- tingency on which the remainder depends is, whether an event which is sure to happen shall happen or not before the expira- tion of the particular estate which supports it ; for if it should not happen until after the determination of the particular es- tate, by the common law the remainder dependent upon it would fail, as there would be nothing to sustain the seisin in the mean time between the determination of the particular estate and the time when the remainder might otherwise have vested. An example of this class would be a gi-ant to A for life, remainder after the death of J. S. to J. D. for life. Now, it is certain that A will die, and that J. S. and J. D. will die ; but whether J. S. sliall die or not before J. D. is wholly uncer- tain, and the remainder to J. D. is contingent. Of the same 1 Fearne, Cont. Rem. 5, 10, and Butler's notes ; 2 Cruise, Dig. 204. 2 Fearne, Butler's ed. 13, note ; Smith, Executory Interest, 57, § 166. 8 Fearne, Cont. Rem. 8, and Butler's note ; 2 Cruise, Dig. 204 ; Co. Lit. 378 a. CONTINGENT REMAINDERS. 531 character would be a limitation to the use of A for twenty-one years, if he shall so long- live, and after his death to B in fee. Here, as A may survive twenty-one years, the remainder de- pendent upon it is contingent, and being such is void, as it has no particular estate of freehold to sustain it.^ § 1562. The Fourth Class of contingent remainders is, where tlie contingency depends upon the uncertainty of the person who is to take the remainder, because he is either not in being, or not ascertained at the time the limitation is made. An ex- ample of this kind would be that of an estate limited to one for life, remainder to the oldest son of J. S., who has none at the time of the limitation made, or remainder to the heirs of J. S., who is living at the time. So a grant to A and B for life, re- mainder to the survivor, would be of this class. In all these cases, there is no means of knowing, when the limitation is made, who, if any one, will be entitled to the remainder when the particular estate shall determine.^ Thus, upon a devise to a daughter and her husband for their respective lives, remain- der to the heirs of the daughter, it was held that the devise over to the heirs of the daughter was contingent until her death, at which time it vested in whoever were her heirs,.^ And in another case, where the devise was to a husband and wife during life, and then to the use of such child or children as might be procreated between them, until a child was born the remainder was contingent. Upon the birth of a child it vested in him ; and as other children were born, the estate opened and let them in to share in the same as a vested remainder.* § 1563. Exceptions to the Third Class. — In applying these rules, there are found to be cases where the decision seems at first sight to be at variance with the letter of the rule, and to form an exception to the same, while in reality carrying out the reason and spirit of the rule. Thus under the third rule, one of the cases given is that of a limitation to A for twenty- 1 Fearne, Cont. Kem. 8 ; Boraston's case, 3 Rep. 20. 2 Fearne, Cont. Eem. 9 ; 2 Cruise, Dig. 206 ; Loring v. Eliot, IG Gray, 572 ; Harriiiian v. Harriman, 59 N. H. 135. 3 Richardson v. Wheatland, 7 Met. 169 ; Moore v. Weaver, 16 Gray, 307. * Carver v. Jackson, 4 Pet. 90. See also Olney v. Hull, 21 Pick. 311 ; Sissou v. Seabury, 1 Sumu. 235 ; Doe d. Poor v. Considine, 6 Wall. 477. 532 CONTINGENT REMAINDERS. one years if he shall so long live, with a remainder over at his death. The remainder in such a case is contingent from the uncertainty of A's dying during the twenty-one years, and is moreover void, if a freehold, because the particular estate is only a term for years. But if the term had been to A for eighty years, for instance, if he so long lived, with a remainder over at his death, the 6hance of his dying within that term is so great as to be treated as morally certain to happen, and therefore such a limitation is regarded as an estate to A for life, remainder to another, who, if in esse, takes a vested and not a contingent remainder.! The cases cited happened to have been those where the time was obviously likely to extend beyond the life of the termor. But it is apprehended that a much shorter time would come within the same rule, if by the scale of chances of life the termor may not be calculated to outlive the term. Thus, if, for instance, the termor was an old man when the limitation was made, a much shorter term than eighty years would bring it within the doctrine of Lord Derby's case.^ § 1564. Remainders of Terms for Years. — It may be proper to remark here, though somewhat by anticipation, that there is no difficulty in limiting a contingent remainder of a term for years upon a preceding term for years, since in that case the seizin and freehold remain in the lessor unaffected by the contingency .'"^ § 1565. Exceptions to the Fourth Class. — So there are what seem to be exceptions to the fourth class of ccmtingent re- mainders. Prominent among them are limitations coming within the rule in Shelley's case. This rule will be more fully explained hereafter ; but, as showing how far it forms the exception above referred to, it is proper to state, that it is accepted as one of the dogmas of the common law, that if one makes a limitation to another for life, with a remainder over mediately or immediately to his heirs, or the heirs of his body, the heirs do not take remainders at all, but the word " heirs " 1 Countess of Darbie's case, cited in Littleton's Rep. 370, where the term was eighty years. Weale v. Lower, Pollexf. 67, where the term was ninety-nine years. Napper v. Sanders, Hutt. 118, where the term was eighty years. 1 Prest. Est. 80 ; Fearne, Cont. Rem. 20-22 ; 2 Cruise, Dig. 206; 4 Kent, Com. 221. 2 Fearne, Cont. Rem. 24; 1 Prest. Est. 81. 8 Fearne, Cont. Rem. 285 ; 2 Cruise, Dig. 244, CONTINGENT REMAINDERS. 633 is regarded as defining or limiting the estate which the first taker has, and his heirs take hy descent, and not by purchase. So if a man by his will gives an estate to a devisee for life, with a remainder over to his own heirs, they do not at common law take as remainder-men by the will, but by descent as re- versioners and heirs, that being regarded as the better title. ^ And now the same effect would be produced in England by a devise of a remainder to a testator's heirs under the statute 3 . Burns, 1 East. Rep. 686. Cf. Robins v. Quinliven, 79 Penn. St. 333. 568 CONTINGENT USES. CHAPTER LXXI. CONTINGENT USES. § 1617. Classification. 1618. Uses limited as remainders. 1619. Seisin to sustain contingent remainder. 1620. Illustration — Covenant to stand seised. 1621. Illustration — Feoffment. 1622. Oi scintilla juris. 1623. Contingent uses treated as contingent remainders. 1621. Resulting freehold will sustain contingent use. § 1617. Classification. — If the foregoing chapters upon uses and remainders have accomplished what was proposed by them, the reader will be prepared to understand the rules which apply to uses which are, by their limitation, to arise or be executed at a period subsequent to their creation. Mr. Sugden divides these into three classes, — future or contingent uses, springing uses, and shifting or secondary uses. § 1618. Uses limited as Remainders. — The first of these are, properly, uses limited to take effect as remainders ; ^ for remainders, whether vested or contingent, may be liihited by way of use as well as at common law; and, in this country, such is the mode in which they are ordinarily, if not always, limited.^ This, of course, implies the existence of a partic- ular estate upon which the remainder depends, created at the same time and by the same instrument as the remainder, as in case of remainders created at common law. In this respect they differ, as will be shown, from springing uses and execu- tory devises; and courts always give to future contingent estates the character of remainders, wherever the terms in which they are limited will admit of such a construction. In the language of Lord Mansfield, "it is perfectly clear and 1 Gilb. Uses, Sugd. ed. 152, n. ; 1 Prest. Abst. 105. 2 4 Kent, Com. 258. CONTINGENT USES. 569 settled, that, where an estate can take effect as a remainder, it shall never be construed to be an executory devise or springing use." And it is stated by Mr. Sugdcn, that "it appears now to be well settled, that where an estate is limited previously to a future use, and the future use is limited by the way of remainder, it shall be subject to the rules of common law, and consequently, if the previous estate is not sufficient to support it, shall be void."^ § 1619. Seisin to sustain Contingent Remainder. — It is hardly necessary to repeat here what these rules are, except that there is the same necessity of a freehold to precede and sustain a freehold contingent remainder, when limited by the way of use, as there is at common law. There must be in some one a seisin, ready to be executed to the use the moment the use vests by the happening of the contingency, in some known ascertained cestui que use in esse, or the remainder must fail.2 § 1620. Illustration — Covenant to stand seised. — To do this, an instance may be assumed of a contingent remainder limited by either of two different forms of conveyance which derive their validity from the statute of uses, covenant to stand seised, or feoffment to use. In the tirst, it will be remembered, the conveyance takes effect without a transmu- tation of possession of the premises conveyed. In the other, such a transmutation takes place. Suppose, then, a person covenants to stand seised to the use of A for life, remainder to his first and other sons in tail, while he has no son, re- mainder to B in tail, remainder to the covenantor in fee. Keeping in mind the rule that there can be no use upon a use, it is not difficult to discover in these limitations all the requisite elements for giving effect to the several estates thereby created. The seisin, being in the covenantor, is in the first place executed in A, the tenant for life to whom the first use is limited ; and as B is a known person in esse, the use in him, as a remainder, is vested and executed, whereby 1 Goodtitle v. Billington, Dougl. 758 ; Gilb. Uses, Sugd. ed. 165, n. ; Co. Lit. 217 ; Adams v. Savage, 2 Ld. Raym. 854 ; Fearne, Cont. Rem. 284, and Butler's note ; 2 Sliarsw. Bl. Com. 175, note for American cases ; Burt. Real Prop. § 797; 1 Prest. Abst. 108 ; Wilson, Uses, 47. 2 Gilb. Uses, Siigd. cd. 167, n., 286. 670 CONTINGENT USES. both A and B have a legal estate in them by force of the statute, — the one in possession, the other in remainder. But as the seisin in A cannot serve the use in the son of A, to whom the contingent remainder by way of use is limited, so as to give hira a legal estate in remainder when he shall come 171 esse, such seisin is to be sought elsewhere, and is found in the covenantor himself, in whom the seisin origi- nally was, and who has the reversion in fee of the legal estate. 1 §1621. Illustration — FeofiFment. — To illustrate the appli- cation of the principle requiring a seisin to be in some one to serve the use to cases of the creation by way of use of a con- tingent remainder by a feoffment to use, lands were conveyed to one to the use of A for life, remainder to his first and other sons in tail, he then having no son, remainder to B in fee. The use, as in the preceding case, became executed in A and B, and the use to B was a vested remainder for the reasons before stated. But when the question was made as to the seisin which was to support the contingent remainder in the son of A, and to be executed and become, with the use when vested, a legal estate in him, the difficulty was to ascertain the person in whom it was to be found. It was said not to be in the feoffor, for he parted with his seisin when he made the feoffment; it was said not to be in the feoffee, because the statute at once took the seisin from him and united it with the use in A ; and it could not be in A, for, as it had become united with his use as cestui que use for life, a use could not be limited upon a use in favor of the contingent remainder- man.'^ § 1622. Of Scintilla Juris. — A vast amount of speculation and ingenious subtlety has been expended by judges and writers to get at some clew by which to reconcile and explain this seeming legal solecism of a seisin which no one can find, though existing somewhere, and both operative and efficient. By some the seisin was thought to be in a state of suspended animation, or, in technical phrase, that it was in nubibus, waiting for the occasion to arise when it should become active, 1 3 Prest. Conv. 400. 2 Gilb. Uses, Sugd. ed. 293-296. CONTINGENT USES. 571 in order to give effect to the limitations which depended upon it. Others thought, that although the statute drew out of the feoffees the seisin which passed to them by the feoffment, and executed it with the use in the first taker of the life-estate, enough of seisin was left in him to serve the future contingent uses as they arose. To this shadowy something they gave the name of scintilla juris, — a topic which fills an important place in the early doctrine of future contingent estates. ^ A more rational view is taken of this subject by modern writers, especially Mr. Sugden and Mr. Hayes, whose notions are approved by Chancellor Kent and Mr. Coventry. The lan- guage of the former is: "The true construction of the statute appears to be, that upon a conveyance to uses operating by transmutation of possession, immediately after the first estate is executed, the releasees (feoffees) to uses are divested of the whole estate; the estates limited previously to the contingent uses take effect as legal estates; the contingent uses take effect as they arise, by force of and relation to the seisin of the releasees (feoffees) under the deed ; and any vested re- mainders over take effect according to the deed, subject to open and let in the contingent uses." This, if established, would overthrow the fiction of scintilla juris, and with it the necessity of an actual entry to revive contingent uses, and would, in many other respects, place contingent uses on the footing of contingent remainders. ^ Mr. Hayes uses this lan- guage: "This scintilla is a thing of which neither the statute nor the common law affords us an idea. It appears to be an invention to get rid of an assumption." "But though we may be at a loss to discover how the seisin can return, much less partially return, to the feoffees, etc., for the purpose of serving a contingent use, there is no difhciilty in supposing it may retain the impression of that use, and be transferred, subject to all the confidences which attached upon it during its momentary residence in the feoffees. The seisin is pres- ently executed in the persons in esse to receive it, not subject 1 Brent's case, Dyer, 340 ; Chudloigh's case, 1 Rep. 120 ; Sugd. Pow. 20-48 ; 4 Kent, Com. 238-247 ; Gilb. Uses, Sugd. ed. 296, note. 2 Gilb. Use.s, Sugd. ed. 297, n. ; 4 Kent, Com. 244 ; Watk. Conv. 244, Coven- try's note. 572 CONTINGENT USES. to a possibility of reverting to the source from which it was derived, to be again attracted thence, but with a capacity, acquired in its passage from the feoffees, of transmission through all the contingent uses. Thus the contingent uses, when they arise, draw their legal clothings from the vested uses, which, in supplying the call, merely obey the original impulse communicated to the common seisin, and fulfil the condition of their vesting. "^ The chief difficulty in under- taking to explain a matter so abstract as this must necessarily be, is to find terms or analogies which are competent to convey a definite idea to the reader. But it is hoped that the fore- going extracts will serve for a matter of so little practical moment as this must necessarily be. § 1623. Contingent Uses treated as Contingent Remainders. — Mr. Sugden affirms that "future or contingent uses are placed on exactly the same footing with contingent remain- ders. "^ It will therefore be unnecessary to dwell further upon this part of the subject than merely to repeat that there must be a particular estate of freehold to support a contingent freehold remainder by the way of use, which remainder must vest and take effect, at the farthest, at the instant of the determination of the particular estate.^ Consequently, if the previous estate is not sufficient to support it, such remainder will be void. Thus, where there was a limitation to trustees or feoffees in fee to the use of A for ninety-nine years, if he so long lived, remainder to the use of the heirs male of B in tail, it was held to be a void remainder, as the preceding estate in A was not a freehold.* In the case of State v. Trask, a deed was made, to certain individuals who had sub- scribed a fund for the erection of a court-house, of a parcel of land to be occupied and improved for that purpose, if the county would accept it as the site of the court-house ; otherwise to be and remain in the custody of the grantees for their mutual benefit. The court held that the grantees took the 1 Hayes, Real Est. 166 ; Fearne, Cont. Rem. 295, and Butler's note ; Walk. Conv. 244, n. See also Cornish, Uses, 137-140. 2 Gilb. Uses, Sugd. ed. 177, n. 8 Gilb. Uses, Sugd. ed. 164, 16.5, n. ; 2 Cruise, Dig. 261. * Adams V. Savage, Salk. 679 ; s. c. 2 Ld. Raym. 854 ; Wilson, Uses, 7 ; Gilb. Uses, Sugd. ed. 167, n. CONTINGENT USES. 573 estate in trust, in the first instance, for the public; and, in case that use failed, then, and upon that contingency, to the use of themselves, etc. "It is not," say they, "the case of a use upon a use, but rather a case of contingent or alternative uses, and one of very frequent occurrence in the law." And although this case is cited here as being sufficiently related to the class of contingent uses, it is obvious, that, if the first limitation took effect at all, the second could only do so as a shifting use.^ § 1624. Resulting Freehold vrill sustain Contingent Use. — It will be sufficient if this prior estate of freehold is one which results to the grantor, if it be by the same instrument which created the remainder. And if the remainder be limited by way of use to several persons, and one of them become capable of taking before another, it will vest in the person first be- coming thus capable, subject to be divested, as to the propor- tion of the persons afterwards becoming capable, before the determination of the particular estate. And notwithstand- ing the different times of vesting, they will take jointly. ^ 1 State V. Trask, 6 Vt. 355, 363. ^ 2 Cruise, Dig. 261 ; Davies v. Speed, Salk. 675 ; Sussex v. Temple, 1 Ld. Raym. 311; Dingley i>. Dingley, 5 Mass. 535; Nichols v. Deuny, 37 Miss. 59 ; Carroll v. Hancock, 3 Jones (N. C), 471. 574 SPRINGING USES. CHAPTER LXXII. SPRINGING USES. § 1625. Definition. 1626. May be certain or contingent. 1627. No particular estate re(^uired. 1628. How such uses arise under the statute of uses, 1629. Kesemblance to shifting use — Seisin. 1630. Must not depend on prior estate. 1631. Answer to executory devises. 1632. Future uses always construed as remainders if possible. § 1625. Definition. — A springing use is one limited to arise on a future event where no preceding use is limited, and which does not take effect in derogation of an}' other interest than that which results to the grantor, or remains in him in the mean time.^ In the words of Lord St. Leonards, "If the use be contingent, the contingency is a thing resting in con- fidence ; and when the time arrives for that contingency to take effect, the statute executes that use or confidence, and gives the legal estate. Before it vests it is a limitation, and it is a limitation of the use, " ^ § 1626. May be certain or contingent. — A springing use is not one necessarily contingent. It may arise upon a future event, either certain or contingent ; ^ or, as defined by a writer of high authority, a springing use is "a future use either vested or contingent, limited to arise without any pre- ceding limitation."* § 1627. No Particular Estate required. — It differs, there- fore, from a remainder, in not requiring any other particular 1 Gilb. Uses, Sugd. ed. 153, n. ; 2 Crabb, Real Prop. 498 ; 2 Cruise, Dig. 263 ; Cornish, Uses, 91 ; Wilson, Uses, 8 ; 2 Sharsw. Bl, Com. 334, n. Springing and shifting uses are often spoken of by legal writers as synonymous or convertible terms. They are not intended to be so used in this work. 2 Egerton v. Brownlow, 4 H. L. Cas. 206. 8 Watk. Conv. 243, Coventry's note ; Weale v. Lower, Pollexf. 65, * Cornish, Uses, 91 ; Wilson, Uses, 8. SPRINGING USES. 675 estate to sustain it than the use resulting to the one who creates it, intermediate between its creation and the subse- quent taking effect of the springing use. Thus, a feoffment to A and his heirs, to the use of B and his heirs after his marriage with C, is an instance of a springing use raised in favor of B, which is contingent on his marrying C.^ On the other hand, while, upon a conveyance to A and his heirs to the use of B and his heirs from and after next Michaelmas, the use to B is a future and springing one, it is not contin- gent; and, till the time fixed for its taking effect, it results to the grantor. 2 § 1628. How such Uses arise under the Statute of Uses. — Mutton's case, above cited, was the first in which a future and springing use, without any preceding estate to support it, was held to be a valid limitation. This was in the 10th of Elizabeth, a. d. 1568, thirty-two years after the passage of the statute of uses. As the whole doctrine of such uses depends upon the construction of that statute, it may be well to recur to the law as to uses as it stood before the passage of the act. In treating of this in a former chapter,^ it was shown that the feoffor, when he made the feoffment, might declare the use to which the feoffee should hold it, either in his own favor or in favor of another, and might in the latter case declare that the use should take effect at a future time, in which case the use resulted to himself till the time desig- nated. The statute of uses, among other things, provided in effect that the cestui que use should have the legal estate created by the union of the seisin with the use in him, "after such quality, manner, form, and condition" as he had before, in or to the use, etc., that was in him. The courts seized upon this expression to give validity and effect to conveyances under the statute, which would have been invalid at common law; and among other things, because before the statute a use might have been created to take effect in futuro, though for life or in fee, they held that a legal estate might, by means of uses, be created to commence infuturo, though it was a free- 1 Cornish, Ushs, 9, cites Mutton's case, Dyer, 274 ; s. c. F. Moore, 376, 517. 2 Watk. Conv. 243, Coventry's note ; Weale v. Lower, PoUexf. 65. 3 Ante, chap. Iv. 576 SPRINGING USES. hold.i The legal estate in the end, when it did take effect, was created by the seisin being executed to the use. But this execution was postponed till the happening of the event or arrival of the time prescribed in its original limitation. This seisin remained in the person creating the future use till the springing use arose, and was then executed to this use by the statute. 2 § 1629. Resemblance to Shifting Use — Seisin. — In one sense, therefore, in every such case a springing use is a shifting one, being a substitute for, and determining that which has remained in or resulted to the person who held the legal estate when it was first created. The cases above sup- posed, where the seisin which is to serve the use when it springs up remains in the person who creates the future use, are those where the conveyance is without transmutation of possession. And therefore it is said a bargain and sale to the use of J. D., after the death of J. S. without issue if he die within twenty years, would be good. But where the convey- ance is by feoffment, lease and release, and the like, which operate by transmutation of possession, a springing use may be limited out of the seisin in the feoffee. Thus, upon a feoff"- ment to A and his heirs, to the use of B and his heirs at the death of J. S., the use in the mean time would result to the feoffor until the springing use took effect by the death of J. S., when the seisin in the feoffee would serve and be exe- cuted to th.e use of B.^ § 1630. Must not depend on Prior Estate. — To create a good springing use, it must be limited at once independently of any preceding estate, and not by way of remainder; for, if it be in the form of a remainder, it shall be construed a future or contingent, and not a springing use, and will be subject to the laws which govern contingent and vested remainders.* Hale, C. J., thus explains the difference between the two: A 1 3 Report, Eng. Com. Real Prop. 27, 28 ; Wms. Real Prop. 242 ; Burt. Real Prop. § 154. '^ Glib. Uses, Sugd. ed. 161, n. ; Shapleigh v. Pilsbury, 1 Me. 271, 290; Wyman V. Browu, 50 Me. 156 ; Savage v. Lee, 90 N. C. 320. 3 Gilb. Uses, Sugd. ed. 163, n. ; Sbapleigh v. Pilsbury, 1 Me. 271 ; 2 Cruise, Dig. 264 ; Ormoud's Case, Hob. 348 a ; 4 Kent, Com. 298 ; Jackson v. Dunsbagb, 1 Johns. Cas. 96. * Gilb. Uses, Sugd. ed. 176, n. SPRINGING USES. 577 feoffment to the use of A for life, and, after the death of A and B, to C in fee, is a contingent remainder to C ; but a feoffment to the use of C in fee, after the death of A and B, is a springing use.^ § 1631. Answer to Executory Devises. — Springing USCS, and the same is true of shifting uses, answer in most respects to executory devises; the difference being that the one is created by deed, the other by last will.^ § 1632. Future Uses always construed as Remainders if possible. — • As will hereafter appear in considering executory devises, courts never construe a limitation by will to be an executory devise, where it can take effect as a remainder, and in like manner, where by possibility a limitation by deed by way of use can take effect as a remainder, courts never con- strue it to be a springing or shifting use. Therefore, wher- ever future estates are so limited as regularly to wait for the expiration of prior estates, and then to take effect, they are remainders, and cannot be deprived of that character. But a use limited by way of remainder will not be construed into a springing use, although actually void in its creation, if not so considered.^ 1 "VVeale v. Lower, Pollexf. 65 ; 2 Fearne, Cont. Rem. Smith's ed. § 117. 2 Fearne, Cout. Rem. 385, Butler's note. Mr. Wilson published a " Treatise on Springing Uses and other Limitations by Deed corresponding with Executory Devises, according to the Arrangement of Mr. Fearne's Essay." 8 Carwardine v. Carwardine, 1 Eden, 34 ; Cole v. Sewell, 4 Dru. & "Warr. 27; Goodtitle v. Billington, Doug. 753 ; Wilson, Uses, 5 ; Gilb. Uses, Sugd. ed. 167, 172, 176 ; Wms. Real Prop. 245 ; Tud. Lead. Cas. 263 ; Southcote v. Stowell, 1 Mod. 238. 37 578 SHIFTING USES. CHAPTER LXXIII. SHIFTING USES. § 1633. Definition. 1634. Fee may be limited after fee by way of use. 1635. Illustratious. 1636. Example of a marriage settlement. 1637. The seisin. 1638. Springing and shifting uses executory interests. 1639. May be future uses after prior estate if the two are not coterminous. 1640. Conditional limitations, contingent remainders, and conditions at com- mon law distinguished. 1641. Conditional limitations only arise by way of shifting use or devise. 1642. Shifting uses applicable to chattel estates. 1643. Successive estates in chattel interests. 1644. Qualities and incidents of future uses. 1645. Restraint of waste in case of future uses. 1646. Shifting and springing uses not affected by destruction of prior estate. 1647. Right of entry sustains contingent remainder by way of use. 1648. Eflect on future use of barring prior entail. § 1633. Definition. — Shifting or secondary uses are such as take effect in derogation of some other estate, and are either limited expressly by the deed, or are allowed to be created by some person named in the deed.^ In the case before cited, Lord St. Leonards uses this illustration : " What is there to prevent you from saying, if a certain event arises, 1 direct you to stand possessed of that estate, upon confidence, for A, B, C, and so on ? But if a certain other event should happen, I then tell you that that confidence is to cease, and the trust is to cease, or the use, as we call it. "^ An example of a shifting use, as given by the courts, is a grant to incor- porated proprietors of land on which it was intended to build a church, habendum to said proprietors, etc. ; and to each and every person who may hereafter become the lawful owner and 1 Gilb. Uses, Sugd. ed. 152, n. ; 1 Spence, Eq. Jur. 452 ; Cornish, Uses, 19 ; 2 Sharsw. Bl. Com. 334, n. " Egerton v. Brownlow, 4 H. L. Gas. 209. SHIFTING USES. 579 proprietor of a pew in said house to be built thereon by said proprietors, " the use would legally shift to those who should thereafterwards become pew-holders. " ^ § 1634. Fee may be limited after Fee by Way of Use. ■— By the common law, there could not be a limitation of a fee after or upon a fee ; and a fee could only be defeated by the feoffor's taking advantage of the broach of some condition by an entry made, and regaining thereby the seisin to himself, since a stranger had no right to avail himself of such condi- tion. But, as has heretofore been explained, before the statute of uses, the feoffor to use, when he parted with his legal estate and seisin to his feoffee, might provide for the estate being held to the use of one until a certain event should happen, and then to another, though each of these limitations of the use should be in terms a fee; and, by the principle adopted in construing the statute of uses, the courts held that there might be a fee limited to take effect after a fee, by destroying the first and giving effect to the second by way of use, whereby the first estate is ipso facto determined, and the new estate brought into its place by the act of the law itself, ^ § 1635. Illustrations. — This may be illustrated by what is said to have been the first case in which the doctrine of shift- ing uses was established. A feoffment in fee was made to the use of W. and his heirs until A. paid ,£40 to W., and then to the use of A. and his heirs. The use to W. was in terms a fee; but it was made defeasible in favor of A., who, by per- forming a condition on his part, and not for any breach of a condition on the part of W., became entitled to the use to which the statute, it was held, annexed the seisin whereby his estate was perfected and the estate in W. defeated.^ Another case was as follows; A limitation was made to J. S., a younger son in fee, provided that, if the eldest son died without issue, J. S. should, within six months after the death of the former, pay £1,000 to his sister; and, on default of such payment, that the estate should go to the sister in fee. 1 Second Cong. See. v. Waring, 24 Pick. 307 ; Paifkard v. Ames, 16 Gray, 328. 2 3 Report, Eng. Com. Real Prop. 27, 28 ; Wms. Real Prop. 242 ; Oilb. Uses, Sngd. ed. 153, n. ; Watk. Conv. (8th ed.) 244 ; Cornish, Uses, 92, 94 ; Carpeuter V. Smith, Pollexf. 78 ; Co. Lit. 271 b, note 231, § 3. 8 2 Cruise, Dig. 264. 580 SHIFTING USES. The eldest son died without issue; the sister died within six months; and on the omission of J, S. to pay tlie prescribed sum, the estate went to the sister's heirs. ^ § 1636. Example of a Marriage Settlement. — But perhaps the best illustration of the application of this doctrine may be afforded by the terms of an ordinary marriage settlement, in which it plays an important part. In this the limitation is to trustees, first to the use of A, the settler, and his heirs until the intended marriage takes place, and from and after such marriage to the uses agreed on, as, for instance, to the use of D, the intended husband, and his assigns for life, and so oh to such other uses and upon such terms as may be pre- scribed. Here the first estate to the settler was a fee; and if the marriage should never take place, there would be noth- ing ever to divest it: upon the happening of the marriage, however, the settler is at once divested of his estate, and a freehold takes effect in possession in D, — the seisin and pos- session, in other words, shifting from A to D, without any further act done by either party. Still, though the interest of D, until it takes effect, is a future one, and contingent in its nature, it is not a remainder; for no remainder can be limited after the expiration of a qualified fee, and such is the estate first limited to A, the settler. And so the uses go on shifting from one to another from time to time, according to the terms of the original limitation of the estate in the settlement.^* § 1637. The Seisin. — There is the same necessity of a seisin in some one other than the cestui que use in the case of a shifting, as there is in that of a springing use. And where the conveyance to such a use is by some mode in which there is no transmutation of possession, the seisin out of which the use is to arise remains in the original owner until the use comea in esse; and where there is a transmutation of posses- * Note. — The reader is referred to Appendix A for the foiin of a marriage settle- ment, showing the application of the above doctrine. 1 Winchelsea v. Wentworth, 1 Vern. 402. 2 Gilb. Uses, Sugd. ed. 155, n. ; Wms. Real Prop. 243 ; 2 Flint. Real Prop. 622 ; Carwardine v. Carwardine, 1 Eden, 34 ; Wilson, Uses, 5. In this case Lord Kenj'on seems to use " springing " in the sense of " shifting " as above defined. Tud. Lead. Cas. 263. SHIFTING USES. 681 sion, it arises out of the seisin of the feoffees or releasees, as in the case of springing uses.^ There cannot be a shifting use on a shifting use.^ § 1638. Springing and Shifting Uses Executory Interests. — But with this attempt to distinguish, for purposes of defini- tion, between springing and shifting uses, it will be found more convenient to treat of them under the general designa- tion of executory interests created under the statute of uses ; that which is limited first, to arise at a future time, being a springing use, and that which is to arise as a secondary one after another, which it is to displace, being a shifting use. § 1639. May be Future Uses after Prior Estate if the two are not Coterminous. — There may be such a use limited after an estate competent to sustain it as a remainder, but upon which it is not, in fact, dependent, by reason, for instance, of an interval between the determination of the prior estate and the taking effect of the use. Thus a limitation to the use of A for life, and after his death and one day to the use of B for life, though it would be inoperative as a remainder, may be good as a future use in B.^ And where A covenanted to stand seised to the use of B after the death of A and his wife, it was held a good limitation of a future use, though no estate was limited to the wife of A if she survived him, and the use to B could not, therefore, have been sustained as a remainder, for want of a particular estate to support it.* The case of Weale v. Lower, already cited, presents the dis- tinction above stated. There the limitation was to the use of A for life, and, after the death of A and B, to C in fee, and was held a contingent remainder, because, if B were to die in the lifetime of A, C's estate would at once vest in him, and come into possession upon the natural determination of A's estate; while on the other hand, if B survived A, the remainder over to C would be defeated.^ Nor would 1 2 Cruise, Dig. 264, 267 ; Wilson, Uses, 150 ; Gilb. Uses, Sngd. ed. 159, n. ; Hayes, Real Est. 167. 2 Gilb. Uses, Sugd. ed. 155, n. 3 "Wilson, Uses, 24 ; Colthirst v. Bejushin, Plowd. 25 ; Corbet v. Stone, T. Raym. 140, 144. < Doe d. Dyke v. Whittingham, 4 Tannt. 20 ; Wilson, Uses, 25. 6 Weale v. Lower, PoUexf. 65. 582 SHIFTING USES. there be any difficulty in Doe v. Whittingham, just cited, from the want of a seisin to support the future use if the wife sur- vived the husband, as in that case the use would result to the heirs of the covenantor during the life of the wife, and the seisin of the covenantor would serve the future use in B.^ § 1640. Conditional Limitations, Contingent Remainders, and Conditions at Common Law distinguished. — It WOuld be a manifest omission of an important principle connected with the doctrine of springing and shifting uses, if recurrence were not again had, in this connection, to the rules applicable to conditional limitations, the distinction between which and contingent remainders, in one class of cases, and conditions at common law, in another, is often exceedingly nice, and yet very important in its consequences. As an illustration, if an estate is limited to A until B return from Rome, and after B return to C, the limitation is a contingent remainder, and good as such. But if the estate had been limited to A, which would be for life if no words of inheritance were an- nexed, provided that if B return from Rome the estate should go to C, the limitation, though precisely the same in effect as the first, would be, not a remainder, but a conditional limitation. In the one case, if C's estate comes into effect at all, it is after the prior estate had determined by the natural expiration of the time for which it was limited; whereas, in the other, C's estate, if it took effect, came in and displaced the prior estate before its natural termination, and took its place as a substitute therefor. Then, again, though the estate of A is a conditional one, liable to be defeated by the happening of a contingent event, it is not a case of condition at the common law, where to determine an estate for a breach of it required an entry by the grantor or his heirs, who thereby regained the estate originally parted with; but it is a case where the estate is wholly parted with by the grantor, no interest being left in him, and passes at once, upon the hap- pening of the event, to him to whom it is limited. That contingent event, when it happens, is the limitation of the first estate granted ; and the estate, instead of going back to the original grantor, goes over, eo instanti, and without any 1 Doe d. Dyke v. Whittingham, 4 Taunt. 22. SHIFTING USES. 583 act but that of the law, to the party named in the very gift itself of the estate, as the one to take it in that event. ^ In case of a condition at common law, if the estate granted is defeated by the happening of the event, and the re-entry by the grantor, it is restored to or revests in the grantor as of his original estate. If it determines by its original limita- tion, or the natural expiration of the estate as first granted, it reverts at once, and without any act on his part, to the grantor. If it determines by being defeated by the contingent event before its natural expiration, it goes in the case above supposed to the second party, or grantee, in the nature of a remainder, technically constituting, as above stated, a con- ditional limitation. The following is given, in one case, as an instance of a conditional limitation. One holding an estate, the consideration for which had been paid by his daughter, conveyed it to another upon an agreement that he should support the daughter till she was married ; and if she was married, and paid the expenses of her support, the estate was to go to her and her heirs. The daughter married and died, having paid the cost of her support. It was held that the estate was defeated in the first taker, and went to her heir without any act done on her or his part.^ § 1641. Conditional Limitations only arise by "Way of Shift- ing Use or Devise. — These conditional limitations are indeed shifting or secondary uses, and can only be created by way of use, or by last will, where they take the name of executory devises. They would be void if inserted in a deed at common law, which does not derive its effect from the statute of uses.^ 1 Gilb. Uses, Sugd. ed. 177, n. ; Fearne, Cont. Rem. 10, 383, Butler's notes ; Cornish, Uses, 95 ; Cogan v. Cogan, Cro. Eliz. 360, where the conveyance failed, not being to uses; 2 Fearne, Cont. Rem. Smith's ed. § 149 ; Sand. Uses, 152-154; Brattle Sq. Ch. v. Grant, 3 Gray, 146, in which case this subject is fully examined, and with great ability and power of discrimination, by Bigelow, J. And for a further illustration of the distinction between a condition, a limitation, and a conditional limitation, as applied to estates at common law or by way of uses or executory devises, see 2 Smith's Fearne, §§ 34-39 ; Touch. 117, 150, 151; 1 Prest. Est. 45-49 ; 2 ^yood's Conv. Powel's ed. 506 ; Henderson v. Hunter, 59 Penn. St. 340. 2 Battey v. Hopkins, 6 R. I. 445. 8 Gilb. Uses, Sugd. ed. 178, u. ; 2 Fearne, Cont. Rem. Smith's ed. § 149, n., § 150 ; Wilson, Uses, 47 ; Cornish, Uses, 96. An ingenious and astute writer in the 684 SHIFTING USES. § 1642. Shifting Uses applicable to Chattel Estates. — Thus far, the estates spoken of under this head have been those of freehold. But the same rules, it will be found, which have been applied to future uses in respect to freeholds, apply as well to uses in chattel interests. In this respect such uses differ from corresponding estates at common law, by which there can properly be no remainder of a term for years. Though a lessee may part with his term, or a part of it, he cannot limit it by way of remainder, in the proper sense of that term. Thus, if one possessed of an estate in lands for fifty years were to grant the premises to one for twenty years, with the remainder of his estate to another, it would be nothing more than dividing his estate into two parts, the first of which he gives to A, and the balance, namely, for the thirty years of the fifty from and after the expiration of the twenty, to B.^ But, as the law anciently stood, had he granted his term as an entire thing, though it were for an hour, he would have parted with his whole estate or interest, and there could be no subsequent limitation of a terra for years after an estate was carved out of it. But this was soon altered. And yet, because a freehold estate is, in the theory of the law, always deemed of superior capacity and importance to a term for years, however extended, there cannot at this day, by the common law, be a limitation of the American Jurist undertakes among other things, in a treatise upon the '* distinction between conditions and limitations in deeds and devises," to define the difference between " contingent " and "conditional " "limitations." "They are," hesays, "sometimes used as synonymous and convertible terms, though properly applicable to estates essentially different." " There are limitations in devises, and limitations in deeds. Limitations in common law conveyances may be contingent ; limitations in devises, conditional." " Both species of limitations are, properly speaking, con- tingent. A condition annexed to an estate by devise loses its distinctive character, because the testator intended the estate peremptorily to go over on the happening or failure of the event, which, if found as a qualification annexed to a deed, would create a condition." The whole article is well worthy the reader's attention ; but the distinction between these limitations is quite refined, and the context usually furnishes a sufficient explanation of the sense in which the terms are intended to be applied by writers who employ them. See 11 Am. Jur. 42, 44, et seq. See also Buckworth v. Thirkell, 3 Bos. & P. 655, note, where Lord Mansfield says: "It is contended that this is a conditional limitation. It is not so, but a contingent limitation." 1 1 Cruise, Dig. 235 ; 2 Fearne, Cont. Rem. Smith's ed. § 159. SHIFTING USES. 585 balance of a term after the limitation of the term itself for the life of the grantee.^ This can only be done by the way of a springing or shifting use, or executory devise.^ § 1643. Successive Estates in Chattel Interests. — The future use of a chattel interest cannot be limited by way of a remainder, whether preceded by a prior limitation, or limited on a certain or uncertain event. It is either a springing or shifting use, or an executory bequest, falling within the rules which govern such uses or bequests, or it is a conditional limitation.^ But if the term be limited, first to one and the heirs of his body, the whole term will vest in him, since there cannot be an estate-tail in chattels within the statute de donis; and what would be an estate- tail in inheritable lands becomes an absolute ownership of the chattels if limited to the heirs of the body of the donee or grantee.* The following cases will illustrate a limitation of successive estates in a chattel interest. One having a term devised the house and land to A B for life, with remainder after his death to his sister; and this was held to be a good executory bequest to the sister to take effect after the death of A B.^ W. W., possessed of a term in lands, assigned it to trustees in trust that he should first receive the profits during his own life, after his deatji his wife to have the profits during her life, after her death J. 0. to receive half the profits during his life, and after his death his child during his life; after the death of such child, E. 0. to have the profits during his life, and after his death his child, and after decease of the child of E. 0. to permit S. Chalfont to receive the profits. It was held, that, all the trusts being expressly limited for life or lives, the same were 1 1 Cruise, Dig. 235; 2 Prest. Abst. 5 ; 4 Kent, Com. 270 ; Fearne, Cont. Rem. 401, Butler's note; Wright v. Cartwright, 1 Burr. 284 ; Burt. Real Prop. § 897; 2 Bl. Com. 174. 2 2 BI. Com. 174 ; 2 Fearne, Cont. Rem. Smith's ed. § l.o9 a ; 2 Flint. Real Prop. 301 ; Wright v. Cartwright, 1 Burr. 284 ; Wilson, Uses, 30. 8 Fearne, Cont. Rem. 401, Butler's note; 2 Fearne, Cent. Rem. Smith's cd. § 159 a ; Burt. Real Prop. §§ 946, 947. * Burt. Real Prop. § 948 ; ante § 197 ; 2 Flint, Real Prop. 303 ; Gibbs v. Bar- nardiston, Prec. in Chanc. 323 ; Seal v. Seal, id. 421. 5 Lampet's case, 10 Rep. 46 ; Burt. Real Prop. § 946. 686 SHIFTING USES. good, and the remainder limited to S. Chalfont was a good one. ^ * § 1644. Qualities and Incidents of Future Uses. — In con- sidering the qualities and incidents of future uses if once created, they are, in the first place, devisable and assignable in equity, and will descend to heirs where the person who is to take can be ascertained; but they cannot be conveyed by deed.^ § 1645. Restraint of Waste in Case of Future Uses. — In analogy to the rules of the common law, by which one having a reversionary interest may have waste against a tenant who does acts to impair the inheritance, if the one who is in pos- session commit wilful waste upon the estate, chancery will interpose to prevent it upon the application of one entitled to a future use in the estate.^ § 1646. Shifting and Springing Uses not affected by Destruc- tion of Frior Estate. — In case of a contingent remainder, it is in the power of the legal tenant for life to defeat the re- mainder by destroying that upon which it depends ; but noth- ing which the owner of a prior limited estate, in the case of a springing or shifting use, can do, can bar or affect the latter,* since the second estate does not depend upon the first. * Note. — There are many rules in regard to the questions what limitations are executory, what is the effect of a limitation after a preceding executory one, within what time a use must arise to constitute a valid limitation, and what limitations would be too remote, which are either directlj' derived from the law of executory devises, or are so nearly identical therewith that it would be little more than repetition to explain and illustrate them here, and again when treating of executory devises. It is proposed, therefore, to defer the consideiation of these questions until the subject is resumed as a part of the law of executory devises, since "a springing use is in a deed what an executory devise is in a will, and the same rules are applicable to both." Gilb. Uses, Sugd. ed. 174, n. 1 Oakes v. Chalfont, PoUexf. 38. 2 Wilson, Uses, 156, 169 ; Jones v. Roe d. Perry, 3 T. R. 88 ; Hobson v. Trevor, 2 P. Wms. 191 ; Cornish, Uses, 100, 101 ; Fearne, Cont. Rem. 366, and Butler's note ; 2 Wms. Saund. 388 k. 8 Fearne, Cont. Rem. 562, and Butler's note; Stansfield v. Habergham, 10 Ves. 275. * Cornish, Uses, 98, 99 ; Gilb. Uses, Sugd. ed. 287, 290 and note ; Wilson, Uses, 48 ; Tud. Lead. Cas. 263 ; Archer's case, 1 Rep. 67; Chudleigh'a case, id. 120 ; 4 Kent, Com. 241 ; 2 Cruise, Dig. 281. SHIFTING USES. 587 S 1647. Right of Entry sustains Contingent Remainder by "Way of Use. — It should bc stated, however, for the purpose of being applied hereafter, that a series of cases hold that there is this difference between a contingent freehold remainder at common law and one limited by way of use, that if, in case of the former, when the remainder vests, there is a right of entry remaining in him to whom the prior particular estate was limited, it will sustain such remainder, although such person may have lost his seisin ; whereas, in the case of a contingent use limited as a remainder, there must be an actual seisin in him who has the previous estate on which such use depends, subsisting at or after the time when it comes in esse, out of which such use may arise, before it can be executed by the statute, a seisin ready to unite with the use being essential to the estate's taking effect. But it does not seem to be mate- rial, upon this theory, whether this seisin should be in the feoffees to use, or in some cestui que use in whom a preceding use had vested.^ In the case, therefore, of the remainder at common law, if the tenant of the preceding estate had been disseised, the contingent remainder dependent upon it would not be defeated so long as the disseisee had a right of entry remaining.'-^ But in the case of a remainder by way of use, if the tenant is so disseised, there must be an actual entry made and a seisin regained before the contingent use can be exe- cuted by the statute ; though this may be either by the feoffees, or the cestui que use under some preceding vested use, for the obvious reason, that, in carrying out this idea, there must be an actually existing seisin in some one who is privy to the use, which seisin is capable of being united with the use.^ But it should also be stated, that, where a right of entry sub- sists in the feoffee or cestui que use of some preceding vested use, the necessity of an actual entry by him in order to regain a sufficient seisin to serve a contingent use is directly controverted by Mr. Sugden, in which he is sustained by Chancellor Kent, as well as by the reasoning of Mr. Fearne 1 Fearne, Cont. Rem. 290, Butler's note. 2 Ante, § 1592 ; Fearne, Cont. Rem. 286 ; 4 Kent, Com. 287 ; Cornish, Uses, 134. 8 Fearne, Cont. Rem. 290, 295, and Butler's note ; Chudleigh's case, 1 Rep. 120; 4 Kent, Com. 242; Wegg v. Villers, 2 RoUe, Abr. 796. 588 SHIFTING USES. and Mr. Butler, Mr. Cruise, and of Professor Greenleaf. Their doctrine, when analyzed, is, that limitations to uses of re- mainders should be construed in lilce manner as limitations of remainders at common law. It discards the idea of a scintilla juris in the feoffees, and holds that the statute draws the estate in the land out of the feoffees, and they become divested, and the estates limited prior to the contingent uses take effect as legal estates; and the contingent uses take effect as they arise by force of the original seisin of the feoffees, the vested estates being subject to open and let in the contingent uses,^ This theory, it will be seen, discard- ing all notion of a scintilla juris in the original feoffees, assumes that the statute, through the seisin originally in these feoffees, virtually converts the successive uses into so many legal estates as they rise, giving them the incidents and. properties of legal estates in remainder, whether vested or contingent, according as the terms of the limitation may be.^ 1 Sugd. Pow. c. 1, § 3, pp. 17-48 ; 4 Kent, Com. 238-246 ; Gilb. Uses, Sngd. ed. 297, n. ; Fearne, Cont. Rem. 293, 295, and Butler's note ; 2 Greenl. Cruise, Dig. 282, 284, n. ; Tud. Lead. Ca.s. 260. 2 1 Prest. Est. 155, 158, 170 ; Hayes, Real Est. 167. Mr. Cornish rather de- fends the notion of a scintilla in the feoffees to supply the necessary seisin to the contingent uses as they arise ; though he says it is " a doctrine which has been much agitated, and is not, to this day, acquiesced in or understood." Cornish, Uses, 140. See also Sand. Uses, 111 ; Booth's Opin. Shep. Touch. 531, note. As a mere matter of practical utility, it can be of very little importance to settle this point of nice technical law. It first arose in the time of Ch. J. Dyer; but as a part of what has been deemed to be the English law of real property, it could not be ■properly omitted altogether. And a single case which arose under it may serve to illustrate the application of the doctrine, while it presents a curious incident in personal history which cannot be without interest to the reader from the names and character of the parties concerned. The case referred to is that of Wegg v, Villers. The circumstances iinder which it arose were these, as stated by the biographer of Lord Coke. The relations of Lord Coke with his wife. Lady Hatton, it is well known, were not of the most pleasant kind. Coke having fallen into disgrace with King James, while acting as Lord Chief Justice, sought to regain the favor of that weak and capricious monarch ; and it was through the agency of Buckingham, who was at the time the king's favorite, that he souglit to operate upon the king. Buckingham had a brother, Sir John Villers, and Coke a daughter Frances, by Lady Hatton, and he proposed a match between them. The mother, angry at not having been consulted in the matter, carried her daughter off, and secreted her. Coke, discovering her place of concealment, went with his sons and seized her by force. Lady Hatton appealed to the Privy Council, and it became an affair of state. It was at length adjusted upon Lord Coke's paying £10,000 ster- ling, and entering into articles of settlement upon the marriage of his daughter. SHIFTING USES. 589 § 1648. Effect on Future Use of barring Prior Entail. — There is what may be deemed to be an exception to the gen- pursuant to articles and directions of the Lords of the Council. The adroitness with which this settlement was drawn, and the cunning manner in which he arranged its provisions, so as to defeat it or let it stand good as he might choose, will be perceived by recurring to its terms, and remembering and applying the idea advanced in Chudleigh's case, that the uses, so far as contingent, must have an actual seisin in some one, answering to a feoffee's, to sustain them. Jn the first place, the conveyance was made by covenant to stand seised on his part, and the limitations derived their force and effect from the seisin in himself; for he cove- nanted to stand seised to the use of himself for life, remainder to the use of his wife for life, remainder to the use of his daughter for life, remainder to her first and other sons in tail, reversion to his own right heirs. This gave an estate to him for life in possession, a vested estate for life in remainder to his wife, and the same to his daughter for life in remainder, with contingent uses by way of remainder to unborn sons in tail, reserving to himself, after and above all these limitations, a reversion in fee. Lord Coke then made a deed of grant of this reversion to a third person without consideration, and in his deed recited the foregoing settlement. He then made a feoffment in fee of the lands thus settled, with livery of seisin. As all the estates but the reversion were by way of use, it was the seisin that was in him as covenantor and reversioner which was to sup- port them ; and if this was destro3'ed, so far as these were contingent, they would be defeated. But as his grant of this reversion was to one having notice, it remained subject to the settlement ; and the seisin of this grantee was that out of which these uses were to arise in the same way, as from the seisin which Lord Coke had had before the grant. But as he was also in possession for life, the effect of his feoffment was not only to destroy his own seisin and estnte, but to make a discontinuance of that of his grantee, the reversioner, together with the estate of the wife and daughter. But it left a right of entry in the daughter. But as this discontinuance was a forfeiture of the father's life-estate, and that of his wife dur- ing coverture, it gave a right of entry in the daughter as holder of the next vested estate, and a contingent right of entry to the wife, dependent on her surviving her husband. The former was suflScient to support the contingent use to the daughter's first son, provided there should be a seisin to serve such use when it should arise. As it turned out, Lord Coke's wife survived him, and having, by the right of entrj"- which she thereby acquired, entered upon the estate, reinstated the divested estates, including that of the grantee of the reversion, out of whose seisin the con- tingent uses were to arise, and the limitations all took effect in their order. If, however. Lord Coke had made his feoffment before making the grant of the rever- sion, the effect would have been to have worked a disseisin, and divested all the then subsisting estates, including the estate or seisin out of which the contingent uses were to arise, and which was to serve them. For as there was no privity between his feoffee, his wife or daughter and his heirs, whose seisin alone could support their contingent uses, no entry by the wife or daughter could restore the estate and seisin of Lord Coke or his heirs, contrary to his own feoffment, since he himself could not have entered against such a feoffment. Now, the cunning part of the arrangement, which was defeated by his dying while things were in the above state, was this : If he had seen fit to sustain the remainders, he would have 590 SHIFTING USES. eral rule, that no act of the holder of prior estate can operate to bar a springing or shifting use when it shall arise; and that is, if the prior estate be an estate-tail. In that case, the tenant in tail, by suffering a recovery, may defeat the use which awaited the contingent event which was to have deter- mined such estate. Thus where the limitation is to A and his heirs, to the use of B in tail, provided that if C return from Rome, then to D in fee. Now, D's interest is a shift- ing use ; and yet, if B were to suffer a recovery, he would bar the limitation over, if done before C's return from Rome.^ suppressed the feoffment, aud only have shown the grant of the reversion, to counteract the feoffment, if that should be set up by any one ; whereas, if he had wished at any time to destroy the remainders, he would have suppressed the grant of the reversion, and left the feoffment to have its effect. As he left both these in force, it gave rise to the action above named, and an indefinite amount of refine- ment and ingenious discrimination upon a rule of law too subtle to be apprehended by ordinary minds. Biog. Diet. Lond. 1798, "Coke ; " Wegg v. Villers, 2 Rolle, Abr. 796 ; Fearne, Cont. Rem. 295-298 ; Sugd. Pow. 32 ; Gilb. Uses, 194-197 ; Glib. Uses, Sugd. ed. 395, n. See Loyd v. Brooking, 1 Ventr. 188. 1 Tud. Lead. Gas. 263 ; Wilson, Uses, 64 ; Sand. Uses, 153 ; Fearne, Cont. Rem. 17 ; Gilb. Uses, Sugd. ed. 157, n. NATURE AND CLASSIFICATION OF POWERS. 591 CHAPTER LXXIV. POWERS — NATURE AND CLASSIFICATION OP POWERS. § 1649. Definition. 1650. Powers originate from doctrine of uses. 1651. Execution of power causes use to shift. 1652. How derived from statute of uses. 1653. Powers illustrated and their tei-ms defined. 1654. How powers are executed through statute of uses. 1655. Power and estate may be in same person. 1656. How trust created by execution of power. 1657. Collateral powers. 1658. Powers appendant. 1659. Powers in gross. 1660. Powers appendant — Illustrations. 1661. Powers in gross — Hlustrations. 1662. How powers affected by conveyance of the land. 1663. Powers general and special. 1664. Powers of appointment and revocation. § 1649. Definition. — Powers "are methods of causing a use with its accompanying estate to spring up at the will of a given person." ^ § 1650. Powers originate from Doctrine of Uses. — Powers, as thus applied, do not come within the popular meaning of the term when used in reference to acts done by one as the agent or attorney for another. ^ They derive their origin and character directly from the doctrine of uses. It will be recollected, that, prior to the statute 27 Henry VHL, any one, upon parting with his legal seisin and estate to the feoffee to whom he saw fit to transfer it for the purpose of raising a use out of the same, if he did not then desire to make a full and final disposal of the use, might reserve to himself the right of declaring, at a future time, to whose use the lands should be held, or to whom the feoffee should con- 1 Wms. Real Prop. 245. 2 Hunt V. Rousmaniere, 8 Wheat. 174 j Combes's case, 9 Rep. 76. 592 POWERS. vey them ; which right he might exercise, though by so doing he might defeat a present use which he had declared at the time of making the feoffment; or he might, when making such feoffment, provide for such a future disposition of the use by some third person, and that the feoffee or trustee should convey the lands as such third person should appoint. At common law, however, no one could reserve to a stranger a power of entering upon land and defeating the title of one in possession thereof for a condition broken.^ § 1651. Execution of Power causes Use to shift. — This is the principle from which are derived springing and shifting uses, by which, as previously explained, one conveying land might provide by the same instrument, that, upon the hap- pening of some future event, a use should spring up, or one thereby declared should shift from one person to another, without requiring any other act to be done in the way of transfer, the appointment by the one having the power being in effect tantamount to the happening of the event which was to cause the future use to spring up or shift.^ § 1652. How derived from Statute of Uses. — In giving effect to these, chancery further seized upon that expression in the statute of uses by which the estate of the feoffee to use was declared to be in the cestui que use, " after such quality, manner, form, and condition " as he had before in or to the use that was in him, and retained its cognizance of uses to be raised or declared by the means above mentioned, and thus introduced a capacity of working changes in the ownership of estates in lands which was unknown to the common law.^ It was in this way that the whole system of modern powers had its origin, and from this source they derive their proper- ties and qualities.* § 1653. Powers illustrated and their Terms defined. — Chan- 1 Sugd. Pow. 4; Coniish, Uses, 19; Co. Lit. 237 a. 2 1 Spence, Eq. Jur. 455 ; Bac. Law Tracts, 314 ; Coruish, Uses, 19 ; Co. Lit. 271 h, note 231. 8 3 Report, Eng. Com. Eeal Prop. 27, 28. * Wms. Real Prop. 245. Mr. Chance insists that something answering to pow- ers existed at common law. Chance, Pow. §§ 5-12. But as powers here under- stood are derived from the statute of uses, it is unnecessary to stop to examine the point. NATURE AND CLASSIFICATION OF POWERS. 593 cellor Kent defines a power as "a mere right to limit a use. "^ Mr. Cornish calls powers "merely modes or media of raising a future use."^ Mr. Booth (and his language is adopted by- Mr. Hilliard and Mr. Butler) says: " Where a use arises from an event provided for by the deed, it is called a future, a con- tingent, an executory use; when it arises from the act of some agent or person nominated in the deed, it is called a use arising from the execution of a power. In truth, both are future and contingent uses until the act is done, and after- wards they are, by operation of the statute, actual estates. But till done, they are in suspense, the one depending on the will of Heaven whether the event shall happen or not, the other on the will of man. While these last are in suspense^ they are called Powers.''^ And Mr. Butler illustrates this statement by supposing an estate conveyed to A and his heirs to the use of B for life, remainder to such uses generally, or to such son of B as B shall appoint, and B appoints to the use of his first son. Immediately upon the appointment, the use is executed in the son. B had only a life-estate, and consequently could not convey an estate-tail to his own son. "It operates, therefore, as a designation of the person to take the use. The right to make this designation is termed a power of appointment. The exercise of it is termed an appointment. The person taking under it is termed the appointee.'" ^ Another illustration of the operation of a power, varying somewhat from the case above supposed, would be this: A conveyance is made to A and his heirs to such uses as B shall by deed or last will appoint; and, in default of or until such appointment made, to the use of C and his heirs. A in this case is simply a feoffee to uses ; and, until some appointment made by B, the seisin in A unites with the present use in C, and vests the estate in C by virtue of the statute. But if B were at any time to direct that the use should thereafter be in D, or, in other words, to appoint the use to D, although B had no property or estate whatever in 1 4 Kent, Com. 334. » Cornisli, Uses, 89. 8 Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4 ; Shep. Touch. Hill. eJ. 529, note. VOL. II. — 38 594 POWERS. the land, the moment he makes such declaration or appoint- ment by deed or will, the estate which is in C is at once divested, and becomes vested in D.^ § 1G54. How Powers are executed through Statute of Uses. — It is not that B conveys any estate in or acts directly upon the possession of the land. His is a mere power, which operates, when exercised in the form prescribed, as a limita- tion of a use in favor of the one he may name ; and then the statute at once unites the seisin with the use in D, executing it, and thereby perfecting his estate.^ By these illustrations, the applicability of the language of Mr. Booth above cited will become apparent. The act of declaring the use in the case supposed becomes the event upon the happening of which a new use springs up in favor of D, or the old one in C shifts from C to D, giving these transactions the operation and effect of an ordinary springing or shifting use.^ Yet although a power is not an estate, the analogy of a general power of appointment to that power of alienation which constitutes the basis of ownership has led to a rule which makes such a power in one respect like an estate. It is now settled law in Eng- land and some of the United States, that when there is a general power of appointment, which is absolutely in the donee's pleasure to execute or not, if he executes it volunta- rily and without consideration for the benefit of third persons, the property which is the subject of the power is considered the assets of the appointor, and his creditors may in equity reach it and have it applied to their debts.'* In New York, however, under the provisions of the Revised Statutes regard- ing powers, it has been held that the English rule does not apply, and that the rights of creditors are only such as are reserved to them by those statutes, which were intended to 1 Tud. Lead. Cas. 264 ; Wms. Real Prop. 245. 2 Co. Lit. 271 b, Butler's note, 231 ; 2 Flint. Real Prop. 545 ; Rush v. Lewis, 21 Penn. St. 72. 3 Tad. Lead. Cas. 264 ; Watk. Conv, 264, Coventry's note. ♦ Townshend v. Windham, 2 Ves. Sen. 1, 9, 10; Ex parte Caswell, 1 Atk. 559, 560; Fleming v. Buchanan, 3 De G. M. & G. 976 ; Johnson v. Gushing, 15 N. H. 298 ; Clapp v. Ingraham, 126 Mass. 200 ; Knowlos v. Dodge, 1 Mack. (D. C.) 66 ; Cutting i;. Cutting, 86 X. Y. 522 ; Gilman v. Bell, 99 111. 144 ; 2 Sugd. Pow. (7th ed.) 27 ; Story, Eq. Jur. § 176 and note ; 4 Kent, Com. 339, 340. NATURE AND CLASSIFICATION OF POWERS. 595 be a thorough revision of the law of powers.^ The foregoing doctrine was held in England not to apply to the case of the execution of a general power by a married woman, in the absence of fraud. ^ But in those States where a married woman is able to hold her property as her own, and is liable to be sued for her debts and have her property taken on execution, as if she were a feme sole, the rule is held to be as applicable to her as to femes sole or to men.^ The doctrine does not apply to cases in which the power has not been exercised, although strenuous exertions have been made to effect such an application upon the ground that a general power of appointment is equivalent to absolute ownership of the property.'^ § 1655. Po-wer and Estate may be in the same Person. — In the case supposed in tlie preceding paragraphs, it would have been equally competent to have had the limitation made to such uses as B should by deed appoint, and, in default of or until such appointment, to the use of B himself and his heirs, instead of C. And in that event B might either appoint the estate to a third person in the execution of his power, or might convey it by deed to such third person, by virtue of the estate in himself.^ And yet, if he acts under his power, and appoints a use in favor of such third person, it will take effect as the execution of a power, defeating his own estate in himself, and the appointee will, in such case, take, not under him or by a title derived from him, but simply under and by virtue of the use thus declared in his favor to which the statute executes the seisin, and thereby creates his estate.^ This result grows out of a rule of universal application, that, when one takes an estate by the execution of a power, it is, to all intents, as if he took by the deed which created the power, and his con- 1 See post, § 1673. 2 Vaughan v. Vanderstegen, 2 Drew. 165, 363 ; Blatchford v. Woolley, 2 Dr. & Sm. 20J: ; Shattock v. Shattock, L. R. 2 Eq. 182. 8 Knowles v. Dodge, 1 Mack. (D. C.) 66. Cf. Clapp v. Ingraham, 126 Mass. 200. * Bainton v. Ward, 2 Atk. 172 ; Holmes v. Coghill, 7 Ves. 499 ; Townshend v. Windham, 2 Ves. Sen. 1 ; Oilman v. Bell, 99 111. 150. s Wms. Real Prop. 251 and note ; Logan v. Bell, 1 C. B. 884. 6 Watk. Conv. 268, Coventry's note ; Roach v. Wadham, 6 East, 289 ; Wms. Real Prop. 251. 596 POWERS. veyance had been inserted in that, instead of coming to him mediately through the one holding the power. And the test of the validity of the estates raised by appointment is to place them in the deed creating the power in lieu of the power itself ; meaning to waive for the present all questions as to the time to which such conveyance by means of a power relates, whether to the creation or execution of the power.^ On the other hand, if, in the case supposed, the one having such power and estate in himself were to convey his estate without reference to his power, the power would thereby be extinguished, and could not be executed in derogation of his own conveyance ; or if a part only of his interest were con- veyed, his power would be suspended as to such interest, leav- ing him full authority to execute it, provided he do nothing to impair his own conveyance.^ § 1656. How Trust created by Execution of Power. — If, in the case supposed, B, instead of appointing the use to D, when the statute executes the seisin in D, and so creates a legal estate in him, had appointed the use to D and his heirs, to the use of E and his heirs, inasmuch as there cannot be a use executed upon a use, the effect would have been to leave the legal estate still in D, who would hold the same in trust for E, by force of the rules of equity in such a case.^ § 1657. Collateral Powers. — From the circumstance that a power may be given to one who has an interest in the lands in respect to which the power is to be executed, or may be given to one who is a stranger to the estate, and that the result is the same when the power is executed upon the estate which is subject to it, arises a classification of powers into two kinds ; namely, such as are collateral, and such as are not. If the one who has the power, commonly called the donee of 1 Bringloe v. Goodson, 4 Bing. N. C. 726 ; Doe d. Coleman v. Britain, 2 Barn. & Aid. 93 ; Mosley v. Mosley, 5 Ves. 256 ; 2 Flint. Real Prop. 545 ; Sugd. Pow. 260; Watk. Conv. 264, Coventry's note ; 4 Kent, Com. 337 ; Co. Lit. 113 a; Brad- ish V. Gibbs, 3 Johns. Ch. 550 ; Doolittle v. Lewis, 7 Johns. Ch. 45. 2 "Wms. Real Prop. 251 ; Hay v. Mayer, 8 Watto, 203 ; Den d. Nowell v. Roake, 5 Barn. & C. 720 ; Burt. Real Prop. § 179 ; 4 Cruise, Dig. 227 ; Goodright v. Cator, Doug. 477. 8 Wms. Real Prop. 246-267; Co. Lit. 271 h, Butler's note, 231, § 3, pi. 4; 4 Cruise, Dig. 220. NATURE AND CLASSIFICATION OP POWERS. 597 the power, has no estate in the land, the power is said to be a collateral or naked power.^ § 1658. Powers appendant. — There is besides a subdivision of the class of powers, which are held by a donee who has some estate in the land, into powers appendant and powers in gross. Powers appendant are such as the donee is authorized to execute out of the estate limited to him, and depend for their validity upon the estate which is in him. He is thereby able to create an estate which will attach on an interest actually vested in him. The illustration given by Mr. Sugden is of a life-estate limited to a man with a power to grant leases in possession, which must in every case have its opera- tion out of his estate during his life.^ § 1659. Powers in Gross are such as One who has an estate in land has, to create such estates only as will not attach on tlie interest limited to him, or take effect out of his own interest. The illustration of Hale, Ch. B., of such a power, is where a tenant for life has a power to create an estate which is not to begin until his own ends. It is a power in gross, because the estate for life has no concern in it.^ Another illustration would be this : By a marriage settlement, the husband, prior to the marriage, conveyed the estate to trustees for his use during life; and if his wife survived him, to her use during life, and then to such children of theirs and their heirs as he by his will should direct, when the trust was to cease. The marriage took place, and they had children. It was held, that, beyond his life-estate, the husband had no estate in the land, but a mere naked power of appointment; and unless he executed that, the estate would pass to the issue and their heirs in equal shares, upon the ground that where a trust is created in a marriage settlement, if there is no special agreement to the contrary, it is intended to make provision for the issue of such marriage.* 1 Sugd. Pow. (ed. 1856) 107 ; Edwards v. Sleater, Hardr. 415, per Hale, C. B. ; Tud. Lead. Cas. 286 ; Bergen v. Bennett, 1 Gaines, Cas. 15 ; Oilman v. Bell, 99 111. 144. 2 Sugd. Pow. (ed. 1856) 107 ; Edwards i-. Sleater, Hardr. 416 ; Bergen v. Bennett, 1 Caines, Cas. 15, per Kent, J.; Burt. Real Prop. § 179. 3 Sugd. Pow, 114 ; Edwards i;. Sleater, Hardr. 416; Burt. Real Prop. §180; Wilson V. Troup, 2 Cow. 236 ; Tud. Lead. Cas. 293; Watk. Couv. 260. * Gorin v. Gordon, 38 Miss. 214. 598 POWERS. § 1660. Powers appendant — Illustrations. — This doctrine of powers appendant may be further illustrated and explained in the matter above mentioned of creating leases. It is hardly necessary to say, that at common law a tenant for life could not create a lease which should extend beyond the term of his own estate. But it is common, in making settlements of estates, to authorize the one who is to have the estate for his life to make leases thereof for a certain number of years, generally twenty-one, by way of use. Now, this is a power appendant. The lease takes its effect out of the estate of the tenant for life, the donee of the power. And if before he executes it he parts with his entire estate, the power is extinguished. Wiien executed, the lease takes effect from the power; and the lessee will have the same right to hold for his whole term, if the tenant for life die before his term expires, as if he had derived his title to his term directly from the original party who created the life-estate and the power.^ And even if the lease be for a longer time than authorized by the power, it seems it would be good up to the limits of that period for which it might have been made.^ §1661. Powers in Gross — Illustrations. — Further illustra- tions of what would be accounted powers in gross, and of their nature, would be found in cases like the following ; namely, where a tenant for life had a power to appoint the estate to his children after his decease, or had a power to jointure his wife out of the estate after his death. So, too, where the owner of a fee reserves to himself a power over the uses of the land, at the same time that he conveys away all his estate in it, it being sufficient, as it seems, to give a power this character, that the one exercising it either has an interest in the land out of which the use arises, or in the use raised by such power, provided the estate created by the power in no way interferes with or takes from such interest.-"^ ^ AVms. Real Prop. 254, and Rawle's note ; 4 Cruise, Dig. 157 ; Sugd. Pow. (ed. 1808) c. 10, § 1; ante, § 630 ; Maundrell v. Maundrell, 10 Yes. 246 b ; Tud. Lead. Cas. 286, 289 ; Wilson v. Troup, 2 Cow. 236 ; Ren d. Hall j;. Bulkeley, Doug. 292 ; Burt. Real Prop. § 177. 2 Campbell v. Leach, Ambl. 740 ; Tud. Lead. Cas. 317. 3 Burt. Real Prop. §§ 180-182 ; Tud. Lead. Cas. 294. NATURE AND CLASSIFICATION OF POWERS. 599 § 1662. Powers, how affected by Conveyance of the Land. — If the one having the power has also an interest in the land which is not to be affected by the exercise of such power, this will not be destroyed by any conveyance of the land, except by a feoffment. But the power over a use which a i)arty reserves upon his grant of an estate he may extinguish by a release. And the same, it seems, is true of a power given to a stranger to be exercised for his own benefit ; ^ whereas, if the power be simply a collateral one, " which means that it is extrinsic and totally unconnected with any interest in the land," the donee of such a power cannot, by any act whatever, extinguish or release it.^ §1663. Powers general and special. — Another classifica- tion of powers is into general, and special or particular. If the donee is at liberty to appoint to whom he pleases, it is a gen- eral power. If he is restricted to an appointment to or among particular objects only, it is of the latter, or special class.^ § 1664. Powers of Appointment and Revocation. — If the power be to create a new estate in any one, it is said to be a power of appointment ; if to divest or abridge an existing estate, it is called a power of revocation. But, as remarked by Mr. Sanders, every power of the kind under consideration is a power of revocation and new appointment ; for the new uses and estates created under the appointment must necessarily (to the extent of such appointment) revoke, defeat, or abridge the uses which existed and were executed previously to the new limitation ; and though sometimes an express power of revocation is limited, prior to the power of appointing new uses, it is never necessary.* In Bird v. Christopher, the only power given in the deed was that of revocation.^ But Mr. Burton says, that in such cases, " if this be done upon the original conveyance, a power of appointment is implied ; but if 1 Burt. Real Prop. §§ 180-182; Edwards v. Sleater, Hardr. 416 ; Tud. Lead. Cas. 294 ; Wms. Real Prop. 256. 2 Burt. Real Prop. § 183. Mr. Chance does not seem to approve of this attempt to classify powers into " collateral " and "in gross," and insists that the terms are convertible. Chance, Pow. § 34. 8 Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4; AYms. Real Prop. 255. * Sand. Uses, 154 ; Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4 ; Tud. Lead. Cas. 264 ; 4 Kent, Com. 415. 5 Bird V. Christopher, Styles, 389. 600 POWERS. a mere power of a revocation be inserted in an instrument of appointment, the exercise of it can only restore the uses of the original settlement." ^ The mode in which this operates is this : The exercise of the power of revocation and appointment extinguishes the use in the former holder of the estate, and raises a new one in the appointee, to which the statute executes or annexes the seisin and possession, and thus creates a new estate in the appointee.^ 1 Burt. Real Prop. § 185 ; 4 Cruise, Dig. 220 ; Wright v. Tallmadge, 15 N. Y. 307. 2 4 Crui.se, Dig. 219. SUSPENSION OR DESTRUCTION OF POWERS. 601 CHAPTER LXXV. POWERS — SUSPENSION OR DESTRUCTION OF POWERS. § 1665. When a donee may release a power. 1666. Release by life-tenant with power over reversion, 1667. Conveyance by such life-tenant. 1668. Powers appendant may be released. 1669. Powers appendant may be suspended. 1670. Analysis of illustrative case. 1671. Power may be executed as to future contingent estates. 1672. Of unexecuted powers of revocation. § 1665. When a Donee may release a Power. — 111 the first place, a mere collateral power cannot be destroyed or sus- pended by an act of the donee.^ And the same is true of extinguishing powers in gross by a conveyance of the donee's estate, unless they were reserved by the grantor, or were to be executed in favor of the donee himself.^ But powers, whether appendant or in gross, may, as a general proposition, be re- leased by the donee or owner of the power to one having the freehold in possession, reversion, or remainder, which operates to extinguish them ; for, not being a trust, the execution is generally optional with the donee, and it is not competent for him to derogate from his own grant by doing an act to deprive the person to whom he has made such release of the estate acquired thereby.^ 1 Digges' case, F. Moore, 605 ; Tippet v. Eyres, 5 Mod. 457 ; s. c. 2 Ventr. 110. That the mere refusal of one having such authority, as an executor without interest to sell, to execute, does not disable him from executing it, see Tainter v. Clark, 13 Met. 220 ; Tud. Lead. Cas. 286, 295 ; West v. Berney, 1 Russ. & M. 431 ; Chance, Pow. § 3105. 2 Tud. Lead. Cas. 294 ; Edwards v. Sleater, Hardr. 416 ; Burt. Real Prop. § 180; Savile v. Blacket, 1 P. Wms. 777. 3 Tud. Lead. Cas. 295; Burt. Real Prop. §§ 181, 182 ; Wms. Real Prop. 256 ; Albany's case, 1 Rep. 107 b ; West j^. Berney, 1 Russ. & M. 431 ; Chance, Pow. §§ 3115, 3137. 602 POWERS. § 1666. Release by Life-tenant with Power over Reversion. — But in one case, where a father having a fund for life, with remainder to his children in such shares as he should appoint, and, in default of appointment, to the children equally, made a release of the power for the purpose of vesting in himself the share of a child that had deceased, and whose executor he was, the court refused to give present effect to the release so far as it operated to vest such share in him, although the power was, in fact, extinguished by the release.^ And, as a general proposition, if the duty of the donee requires him to exercise a power at any future time, he cannot extinguish it by a release. 2 § 1667. Conveyance by such Life-tenant. — In accordance with the foregoing doctrine, that a power in gross cannot be released, it has been held that a tenant for life, with a power of appointment as to the reversion, or of revocation as to a remainder, may execute his power, though he may have aliened his own life-estate.^ And where an estate was settled to the use of H for life, remainder to the children of H, with a power in trustees to sell the estate during the life of H, at his request, H having conveyed his estate, requested the trustees to con- vey to his grantee, who did so ; and it was held to be a good execution of the power, as H, by his deed, did nothing in derogation of the estate of such grantee to be derived from the trustees.* § 1668. Powers appendant may be released. — But where the power comes within the class of appendant powers, as above defined, it is competent for the donee to suspend or extinguish it constructively by his own act, or he may extin- guish it by a separate formal release. Thus, if the tenant for life, having a power to lease, conveys his entire estate, his power is extinguished.^ So if lands are settled on one with a power of appointment to uses, and upon him in fee if he fail to appoint, he may alien the estate as his own, and will thereby 1 Cunynghame v. Thurlow, 1 Russ. & M. 436, n. 2 Wms. Real Prop. 256 ; Chance, Povv. § 3121. 8 Tud. Lead. Cas. 294 ; Burt. Real Prop. § 176; Chance, Pow. § 3172. * Alexander v. Mills, L. R. 6 Ch. App. 124. 6 Ren d. Hall v. Bulkeley, Doug. 291, 292 ; Penne v. Peacock, Cas. temp. Talb. 43; Chance, Pow. §§ 3157, 3159; Tud. Lead. Cas. 260; Burt. Real Prop. § 175. SUSPENSION OR DESTRUCTION OF POWERS. 603 defeat and extinguish his power. Nor docs it make any dif- ference in the result, whether the alienation is by the act of the donee of the power, or of the law. Accordingly, where a tenant under a limitation like that above stated became bank- rupt, it was held that the transfer in bankruptcy divested him of his entird estate, and the power of appointing the remainder was extinguished.^ § 1669. Powers appendant may be suspended ; as where a tenant for life, with a power of appointment and revocation, instead of conveying his whole estate, demised the land for ninety-nine years, if he should live so long, to secure an an- nuity, it was held that he could not, by afterwards executing the power, defeat this demise, it having been made for a good consideration. The power was thereby suspended.^ So a power of revocation and appointment may be partially sus- pended as to its taking effect, as where one, having an interest in land with a power of appointment, leased the land. Al- though he could not, by afterwards executing his_ power, defeat his lease, the power was held to be suspended in its taking effect to the extent of the lease only, and that the appointment was good for all beyond that.^ §1670. Analysis of Illustrative Case. — The foregoing prop- ositions may be further illustrated by analyzing one of the cases above cited, in which a tenant for life had, by will, a power to lease for twenty-one years, and by the same will the executor had a power to mortgage in fee or for years. The tenant made a demise of the land for ninety-nine years, if he should live so long, and then demised it under his power for twenty-one years. Subsequently, the executor executed the power to mortgage, by a lease for one thousand years. The mortgagee sued the lessee under the lease for twenty -one years, for rent which he claimed as reversioner. The tenant in de- 1 Burt. Real Prop. § 177 ; Wms. Real Prop. 251 ; Tud. Lead. Cas. 290 ; Doe d. Coleman v. Britain, 2 Barn. & Aid. 93 ; Chance, Pow. § 3155 ; Maundrell v. Maundrell, 10 Ves. 246. See Hershey v. Meeker Co. Bank, 71 Minn. 255 ; s. c. 73 N. W. Rep. 967. '^ Tud. Lead. Cas. 287 ; Goodright v. Gator, Doug. 477 ; Bringloe v. Goodson, 4 Bing. N. C. 734. 3 Yelland v. Ficlis, F. Moore, 788 ; Snape v. Turton, Cro. Car. 472 ; Wms. Real Prop. 251 ; Tud. Lead. Cas. 288 ; Wilson v. Troup, 2 Cow. 237. 604 POWERS. fence set up the prior lease of ninety -nine years, and contended that the granting of that lease was a suspension of the power to lease for twenty-one years during the first term of ninety- nine years. This first lease took effect out of the life-estate of the tenant for life, and not out of his power, and so there was then a reversion in him. Had the question of priority of right hcen between the lessee for ninety-nine years and the lessee for twenty-one years, in the absence of any estate created by the execution of the executor's power, the former must prevail, since the lessor could not by his second lease prejudice the one claiming under the first. But regarding the leases which were executed under the powers of executor and tenant for life by themselves, in their relation to each other, they were to be considered as if made by and contained in the will which created the powers. And therefore, as between the lessee under the power in the tenant for life and the lessee under the power in the executor, the last, being later in point of time,^was to be regarded as assignee of the reversion of the first, and entitled to the rent. The two leases, one for twenty- one and the other for one thousand years, are to be regarded as if made by the will itself, the latter being as to the former in the light of a reversion, and as such giving the latter lessee the common law right to the rent of the prior lease. The tenant for life, moreover, so far as he had a riglit to make the lease of ninety-nine years, held this subject to these powers to lease and mortgage created by the will, and his lease for ninety-nine years was accordingly subordinate to them. Nor could the lease for ninety-nine years in a stranger be set up against this claim, for the making of that did not suspend the power in the life-tenant to lease for twenty-one years, which, therefore, was good as to every one except to override the term for ninety-nine years, and was consequently good as to the appointee of the executor under his power to mortgage.^ But so far as the execution of the power would operate to defeat an estate which the donee had, for a valuable considera- tion, created out of his own estate or interest, as, for instance, by the lessee for the twenty-one years setting up his lease against the lessee for ninety-nine years, the law suspends the 1 Bringloe v. Goodson, 4 Bing. N. C. 726. SUSPENSIOX OR DESTRUCTION OF POWERS. 605 power in order to prevent any one from working a fraud or injustice. 1 § 1671. Power may be executed as to Future Contingent Estates. — It is no obstacle in the way of executing a power that the estate thereby to be created cannot be innncdiatcly enjoyed, or even be a vested estate at the time of the execu- tion ; nor would such a state of things of itself operate to defer or suspend the execution of a power. Thus where an estate was limited to S. for life, remainder to her son and his heirs, but if he died in her lifetime without issue, then to such per- son as S. should appoint, it was held, that, if S. made this appointment in the lifetime of the son, it would be a good one, and would take effect upon and in event of the son's dying in her lifetime without issue.^ But still the appoint- ment should be immediately to the use of the person who is intended to take beneficially under the proposed execution of it, as otherwise the estate created might be left in another's hands, and the one intended to be benefited only have an equitable use in it.^ § 1672. Of Unexecuted Powers of Revocation. — But though an existing unexecuted power of revocation and appointment may operate to defeat an existing estate in the present holder of the land, though holding under the instrument creating the power, whenever the donee of the power may see fit to execute it, it is not deemed in law to render the estate of such holder a contingent one, but this is to all intents a vested estate, though liable to be divested by the execution of the power. And such would be the character of a remainder limited after an estate for life, though the tenant for life were clothed with a power of appointing remainders, and the former remainders over were limited by the deed creating the power, to the person named in default of such appointment, by the ten- ant for life. It would be a vested and not a contingent estate.* 1 4 Cruise, Dig. 221. 2 Dalby v. Pullen, 2 Bing. 144 ; Tud. Lead. Cas. 546 ; Chance, Pow. § 402. 8 Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4. * Doe d. Willis v. Martin, 4 T. R. 39 ; Chance, Pow. § 2749 ; Osbrey v. Bury, 1 Ball & B. 53 ; Watlc. Conv, 268, Coventry's note ; Braman v. Stiles, 2 Pick. 460 ; Fearne, Coiit. Pem. 226; Cox v. Chamberlain, 4 Ves. 631; 4 Cruise, Dig. 146; Gorin v. Gordon, 38 Miss. 214. 606 POWERS. CHAPTER LXXYI. POWERS — APPLICATION OF POWERS IN AMERICAN AND ENGLISH LAW. § 1673. Provisions of the Xew York law. 1674. Same subject, continued. 1675. Courts of law governed by equity rules. 1676. Power implied to appoint to inheritable use. 1677. Implied restriction to life appointment. § 1673. Provisions of the New York Law. — As powers have been chiefly made use of in effecting family settlements which are comparatively infrequent in this country, they have been rarely applied, though fully recognized here as forming a part of the American law. It therefore becomes necessary to know something of the subject as a branch of general jurisprudence, in order to apply some parts of the legislation of the country. Thus, in New York, it is declared that a devise of lands to executors or trustees to be sold or mortgaged, where these are not to receive the rents, shall vest no estate in the trus- tees, "but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the tes- tator, subject to the execution of the power. '^ Powers under marriage settlements are favorably construed and applied in the equity courts of Mississippi. ^ § 1674. Same Subject. — So, many trusts are by the New York statute declared to be powers, no estate vesting in the trustees; and the third article of the Revised Statutes of New York, from the seventy-third to the one hundred and thirty- fifth sections, is devoted to the subject of powers, but is too extended to admit of being incorporated into a treatise like this. Thus it is held, that, if A grants land to B in 1 New York Stat, at Large, vol. 1, p. 678, § 56 ; Lalor, Real Est. 180. 8 Gorin t;. Gordon, 38 Miss. 210. APPLICATION OF POWERS IN AMEPJCaN AND ENGLISH LAW. 607 trust for such person as C shall appoint, it is a valid power in trust under this statute, by which, as a mere trust, it is void, and creates no estate in the trustee, inasmuch as there is no duty for him to do as to the estate. But if C were to make an appointment in favor of any one, the power vested by deed in the trustee would become operative in him to con- vey the estate to the appointee. But in the case cited below, C having died without executing the power of appointment, the whole conveyance failed, and the estate remained in the grantor unchanged, but discharged of the power. ^ The stat- utes of New York in regard to powers have been substantially re-enacted in Michigan, Wisconsin, Minnesota, North Dakota, and South Dakota. ^ § 1675. Courts of Law governed by Equity Rules. — Courts of law, wherever powers are recognized as existing under the statute of uses, adopt in respect to them the rules which pre- vailed in equity before that statute, and they are thus capable of being made the means of defeating, modifying, transferrins:, and varying, in every imaginable manner, any or all of the equitable interests which a conveyance may have originally described and limited.^ § 1676. Power implied to appoint to Inheritable Use. — It is accordingly held that, if the intention is clear, a power may enable one to make disposition of a fee, although no words of inheritance are used ; as, where a testator gives a power to sell lands, the donee may sell the inheritance, because the testator gave the same power which he himself had.* "Where an estate is given absolutely to such uses as a person shall appoint, without any prior limited estate, it is an estate in fee.^ And this extends to deeds as well as to wills, by which powers of appointment are created. There is little if any difference in the construction of deeds and wills on this point. 1 Hotchkiss V. Elting, 36 Barb. 38. 2 Mich. Annot. Stat. 1882, § 5590 ct seq. ; Wis. Annot. Stat. 1889, § 2101 et seq. ; Minn. Stat. 1891, § 4030 et seq.; N. Dak. Rev. Codes, 1895, § 3402 et seq.; S. Dak. Annot. Stat. 1899, § 3724 et seq. 3 Right d. Basset v. Thomas, 3 Burr. 1446; Burt. Real Prop. § 125 ; 2 Flint. Real Prop. 544 ; Ren d. Hall v. Bulkeley, Doug. 292. * 1 Sugd. Pow. 476 ; Wilson v. Troup, 7 Johns. Ch. 34, 35 ; 4 Cruise, Dig. 136. ^ Langham v. Nenny, 3 Ves. 467. 608 POWERS. A general power in a deed, as well as in a will, to limit "any estate or estates," will authorize the limitation of a fee or any less estate.^ Thus, where by will a testator devised his lands to his wife for life, "and then to be at her disposal," provided she disposed of it after her death to any of her children, it was held she had an estate for life, and might by will create a fee in any of her children to whom she should appoint the estate. ^ In deeds, however, technical expressions are, in some cases, absolutely necessary, so that they cannot be supplied by others. So that, in the cases above supposed, the one execut- ing the power of creating an estate should define, by proper terms of limitation, whether it was a fee or a less estate, and what estate it was intended to be. In wills, technical expres- sions are never necessary. ^ § 1677. Implied Restriction to Life Appointment. — But if the power is to appoint to such " persons " as the donee may choose, it authorizes only a life-estate.* 1 Chance, Pow. §§ 1207, 1208 ; Liefe v. Saltingstone, 1 Mod. 190. 2 Dighton V. Toralinson, Comyns, 194 ; s. c. 1 P. Wms. 171. 8 Co. Lit. 271 b, Butler's note, 231. * 2 Flint. Real Prop. 549. HOW POWERS MAY BE CREATED. 609 CHAPTER LXXVII. POWERS — HOW POWERS MAY BE CREATED. § 1678. How created. 1679. How created by reservation. 1680. No precise form of words requisite. 1681. Necessary to distinguish between power and estate. 1682. Power and estate and naked power may exist as to same land. 1683. Difficulty confined to wills. 1684. How to distinguish naked power from one coupled with estate. § 1678. How created. — Powers may be created by deed or by will. They may be given to the grantee to be exercised over lands, etc., granted or conveyed at the time of the crea- tion of the power, or they may be reserved to the grantor.^ § 1679. How created by Reservation. — If reserved, the reservation may be either in the body of the deed, or by means of an indorsement made thereon before its execution, or by a deed of the same date with the settlement, and there need be no counterpart to the deed.^ And it may be remarked, though perhaps not coming strictly under the head of the creation of powers, that though, if a power is contained in a deed limit- ing an estate to A to such uses as he should appoint, and, in default of appointment, to himself in fee, it was formerly much discussed whether the power was not merged in the fee, it is now settled that it is not, and that a general power of appointment may coexist with the absolute fee in the donee of a power. ^ § 1680. No Precise Form of Words is requisite in creating a power. It is sufficient if the words indicate an intention 1 Watk. Conv. 258, and Coventry's note; Burt. Real Prop. §§ 123, 172; 4 Kent, Com. 319. 2 1 Sugd. Pow. (ed. 1856) 158. 8 1 Sugd. Powd. (ed. 1856) 105 ; Maundrell v. Maundrell, 10 Ves. 255-257 ; 4 Greenl. Cruise, Dig. 241, n. ; 6 Greenl. Cruise, Dig. 490. VOL. II. — 39 610 POWERS. to reserve or give the power. And this applies both to cases of powers created by deed and by will.^ § 1681. Necessary to distinguish between Po-wer and Estate. — But it becomes often exceedingly important to discriminate between the terms which create a power, and those which would confer an interest upon one ; the difference being, so far as the party who ultimately derives a title to the estate is concerned, that in the latter case he takes immediately from the donee of the power and interest, in the former from the grantor himself, the donee being the medium through whom the estate is created. Mr. Chance, in the third chapter and third section of his work on Powers, has collected a large number of cases wherein this distinction has been exemplified, the most numerous of which, perhaps, have arisen under de- vises by which executors are directed to sell the lands of the testator. But these cases are too numerous to be repeated here. The same may be said of what the reader will find in Mr. Sugden's work on Powers, and the notes to the American edition of 1856,2 vvhere the American cases are also collected. It will be sufficient for the present to state, that the question in the several cases turns altogether upon the intention of the grantor or devisor, as expressed in, or to be gathered from, the whole will or deed.^ § 1682. Power and Estate and Naked Power may exist as to same Land. — In Bloomer v. Waldron, the court say : " There is no difficulty in seeing that a man may have a power coupled with an interest as to one estate, and a naked power as to another estate in the same land. For instance, the same in- strument may give him power to sell a term for years and take the purchase-money for his own use, with power to sell the reversion for the benefit of another. The latter would be none the less a naked power because the former vested a title in the donee. "^ 1 1 Sugd. Pow. 118. 2 1 Sugd. Pow. (ed. 1856) 120-134 and notes. 3 i Kent, Com. 819 ; Peter v. Beverly, 10 Pet. 532 ; Ladd v. Ladd, 8 How. 10 ; Jackson d. Bogert v. Schauber, 7 Cow. 187 ; Walker v. Quigg, 6 Watts, 87 ; Jack- son d. Ellsworth v. Jansen, 6 Johns. 73 ; Sharpsteen v. Tillou, 3 Cow. 651 ; Jame- son V. Smith, 4 Bibb, 307. * Bloomer v. Waldron, 3 Hill, 361, 365. HOW POWERS MAY BE CREATED. 611 § 1683. Difficulty confined to "Wills. — Where it appears that the intention of a testator in creating a power has been answered, the power itself will cease ;^ and as technical words are so essential to the creation of estates by deed, and their import is so generally understood, a question rarely arises upon a deed, whether the party takes an actual estate or not. Such questions usually relate to wills. ^ § 1684. How to distinguish Naked Power from one coupled with Estate. — One test that is given in some of the cases for distinguishing a naked power from one coupled with an interest is, whether the donee of the power is to have posses- sion of that to which his power relates. If he is, he is con- sidered to have an interest, otherwise a mere naked power. ^ Where an executor, guardian, or other trustee is invested with the rents and profits of land, with a power of sale for the use of another, it is still an authority coupled with an interest, and would survive.* 1 Jackson d. Ellsworth v. Jansen, 6 Johns. 73 ; Sharpsteen v. Tillou, 3 Cow. 651. 2 Sugd. Pow. (ed. 1856) 153. 8 Clary v. Frayer, 8 Gill & J. 403 ; Gray v. Lynch, 8 Gill, 403. See post, § 1713. * Peter v. Beverly, 10 Pet. 533. 612 POWERS. CHAPTER LXXVIII. POWERS — BY WHOM AND HOW A POWER MAY BE EXECUTED. § 1685. Who may execute a power. 1686. Execution by foreign executor of donee. 1687. What law governs. 1688. Law strict as to mode of execution. 1689. Illustrations. 1690. Power to sell, and its implications. 1691. Power to appoint to children. 1692. Power to appoint to "issue." 1693. Of certain common law powers. 1694. Execution of power of appointment : how it operates. 1695. Of the seisin requisite to serve a power. 1696. Appointor a mere instrument. 1697. Appointee takes nothing from appointor. 1698. Execution need not contain express reference to power. 1699. Example of appointee taking under original deed. 1700. Intention of appointor a matter of construction. 1701. Execution of power identical with creation of use. 1 702. When a power may be delegated. 1703. Execution by assignee or devisee. 1704. Execution where more than one donee. 1705. When powers to two or more donees survive. 1706. Of powers to executors to sell. 1707. Death of trustee with power. 1708. Powers implying person.al confidence. 1709. Powers to persons as a class. 1710. Of imperative powers to executors. 1711. Testamentary power considered a trust in equity. 1712. Eevocability of powers. 1713. What is a power coupled with an interest. 1714. Power coupled with interest assignable. 1715. When the donee may and when he must execute the power. 1716. Of the donee's dominion over the property. 1717. When donee's deed passes his own estate or executes his power. §1685. Who may execute a Power. — Any person who is competent to dispose of an estate of his own may execute a power over land.^ If a power is simply collateral, an infant 1 1 Sugd. Pow. (ed. 1856) 181 ; 4 Kent, Com. 324. BY WHOM AND HOW A POWER MAY BE EXECUTED. 613 may execute it. ^ And 2^ feme covert may execute a power, whether collateral, appendant, or in gross, the concurrence of her husband being in no case necessary. She may even exe- cute it in favor of her husband. ^ It makes no difference whether the power was granted to her before or after she became a married woman. The consent of her husband is unnecessary in either case.^ And the power may be coupled with an interest, as where an interest in land with a power of appointment is given to a married woman to her sole and separate use, or is given so that by statute it is her separate property.* But the power must be exercised by her in the mode appointed by the instrument giving the power. The statutes enabling women to hold their separate estate with full power of disposal do not alter this rule.^ § 1686. Execution by Foreign Executor of Donee. — In Doolittle V. Lewis, a mortgagor, living in New York, made a mortgage of lands lying in New York, to his creditor in Vermont, containing a power of attorney to him, his execu- tors, administrators, or assigns, to sell the premises upon default of payment. The mortgagee having died, his admin- istrator, appointed by a court of Vermont, proceeded to sell the mortgaged estate ; and the question was, if such adminis- trator could execute such power, when he could not prosecute any suit in the State of New York by virtue of letters of administration granted in Vermont. The Chancellor held the sale good, on the ground that the administrator answered the description of the person to whom, by the convention of the original parties, the power was committed, and its exer- cise was a matter of contract which did not involve the ques- 1 4 Kent, Com. 325. If the power is to be executed by will, as an infant can- not make a will, it seems he cannot execute the power. Sugd. Pow. (ed. 1856) 211. 2 1 Sugd. Pow. 182 ; 4 Kent, Com. 325 ; Ladd v. Ladd, 8 How. 27 ; Rush v. Lewis, 21 Penn. St. 72, where the wife under a power appointed an estate to her husband by last will, this was held to vest the legal estate in him. Doe d. Blom- field V. Eyre, 3 C. B. 578 ; s. c. 5 C. B. 741 ; Bradish v. Gibbs, 3 Johns. Ch. 523 ; Hoover i;. Samaritan Soc, 4 Whart. 445 ; Barnes v. Irwin, 2 Dall. 201 ; Leavitt v. Pell, 25 N. Y. 474 ; Wright v. Tallmadge, 15 N. Y. 307 ; Wood v. Wood, L. K. 10 Eq, Cas. 220. 3 Sugd. Pow. 181, 183 ; 4 Kent, Com. 324. * Armstrong v. Kerns, 61 Md. 364 ; Banks v. Sloat, 69 Ga. 330. 5 Breit v. Yeaton, 101 111. 242. 614 POWERS. tion of jurisdiction of the Vermont court in appointing an administrator to act in another State. The title of the pur- chaser was the same as if it had been created by the original deed.i § 1687. "What Law governs. — The law of the situs of the subject of the power controls the execution of the power.^ § 1688. Law strict as to Mode of Execution. — That the exe- cution of a power may be valid, the law is exceedingly strict in requiring a precise compliance with the direction of the donor, as expressed in his deed or will ; though, as hereafter explained, equity sometimes interposes to give validity to a defective execution of a power. The law itself prescribes no particular ceremonies to be observed in the execution of a power, unless it is to be by will, in which case the requisite formalities of attestation must be complied with. The terms of the power may direct it to be exercised by a note in writ- ing, or by will, or its execution may be clogged with any ceremonies which the caprice of the one creating it may see fit to impose; all of which must be strictly complied with, however unessential or unimportant they may appear in themselves to be.^ § 1689. Illustrations. — A power to a husband and wife cannot be executed by the survivor;^ and a power to appoint by deed cannot be executed by will, nor vice versa.^ If, how- ever, the power be a general one, it may be executed in either way; and if it is to be executed by "any writing," or "any instrument," it may be by will.^ In certain cases, however, equity will aid the defective execution of powers.' It was 1 Doolittle V. Lewis, 7 Johns. Ch. 45, 48. See Hutchins v. State Bk., 12 Met. 425, where the court say, " Whethei' the law would go to that extent here, may perhaps be questioned." 2 Bingham's App., 64 Penn. St. 345. 8 Watk. Conv. 262, 263, Coventry's note ; 1 Sugd. Pow. (ed. 1856) 211 ; Hab- ergham v. Vincent, 2 Ves. Jr. 231 ; Longford v. Eyre, 1 P. Wms. 740 ; Breit v. Yeaton, 101 III. 242. See Hawkins v. Kent, 3 East, 410, 430, where several illus- trations will be found in the cases cited. Wms. Real Prop. 247, 249 ; 1 Sngd. Pow. (ed. 1856) 250, 278 ; Andrews v. Roye, 12 Rich. 546 ; Bentham v. Smith, Chev. Eq. 33. < "Watk. Conv. 261, and Coventry's note ; Ex imrte Williams, 1 Jac. & W. 93. 6 "Wilks V. Burns, 60 Md. 64. 8 "Wright V. Wakeford, 17 Ves. 454 a. ' See post, § 1727 et seq. BY WHOM AND HOW A POWER MAY BE EXECUTED. 615 held in one case, that where the power was required to be exer- cised by a writing, "under hand and seal attested by wit- nesses," it was not enough that witnesses actually attested it: in order to be valid, the attestation clause of the deed should state that it was so attested,^ and this was afterwards re- affirmed. ^ But in a more recent case, the former decisions seem to be overruled, and an actual attestation will be suffi- cient, though not stated to be done as such in an attestation clause.^ And such seems to be recognized as the law in the United States, and the fact of the witnesses having attested the instrument may be established aliunde.^ § IGOO. Power to sell, and its Implications. — Ordinarily a power to sell does not confer a power to mortgage.^ Where 1 Wright V. Wakeford, supra. 2 Wright V. Barlow, 3 Maule & S. 512. 8 Vincent v. Bishop of Sodor and Man, .5 Exch. 683 ; Burdett v. Spilsbury, 6 Mann. & G. 386. See Wms. Real Prop. 248. * Ladd V. Ladd, 8 How. 30-40. 6 Stronghill v. Anstey, 1 De G. M. & G. 645 ; Bloomer v. Waldron, 3 Hill, 361 ; Hirschman v. Brashears, 79 Ky. 258 ; 1 Sugd. Pow. (ed. 1856) 513. Though a power to sell and raise money implies a power to ilo this by mortgage, while a power generally " to raise the sum out of the estate is an authority to sell." 1 Sugd. Pow. 513 ; 4 Kent, Com. 331 ; Leavitt v. Pell, 25 N. Y. 474 ; Zane v. Kennedy, 73 Penn. St. 182. " An absolute and unrestrained power to sell includes a power to mortgage." It seems to be still an open question, in every case, upon its particu- lar circumstances, whether a power to sell includes a power to mortgage, the test being the intention of the donor of the power as gathered from the instrument creating the power. If the purposes of the power are such that a mortgage would answer them better than a sale, as where the object is to pay debts or raise por- tions, the courts will generally construe the power so as to admit of a mortgage. Loebenthal v. Raleigh, 36 N. J. Eq. 169. In New York, a power to sell does not include a power to mortgage, unless something more is added, showing that the power of sale is meant to include a power to mortgage. Bloomer v. Waldron. supra. In New .Jersey, such a power was held not to allow a mortgage, although given to executors who were directed to carry on the testator's brewery business after his death. Ferry v. Laible, 31 N. J. Eq. 566. When the gift was to A of so much of the testator's estate " as may be sufficient for his comfortable maintenance and sup- port for his life, he having full power to sell and convey any and all of the real estate, at any time, if necessary to secure such maintenance," it was held that the power to sell did not include a power to mortgage in fee. Hoyt v. Jaques, 129 Mass. 286. When the power was " And I hereby authorize and empower 'A' to sell and dispose of any of the property hereby bequeathed in this will, when it shall appear to him to be advisable so to do, having an eye to the support and education of the children, " it was held not to authorize a mortgage. Stokes v. Payne, 58 Miss. 614. The power to sell does not include a power to exchange land for some other valuable thing, e. g. a patent right. Hampton v. Moorhead, 62 Iowa, 91 ; 616 POWERS. the power was in A to appoint by will how the estate, after her death, should be distributed among her children, it was held that she had no power to sell the estate, or authorize any other person to sell the same. Nor can a power to appoint by will be executed by a deed.^ And where the power is to sell for a specific sum, it means a cash sale, and not one for approved notes, unless there is something in the power or usage of trade to manifest a different intention.^ § 1G91. Power to appoint to Children. — So ordinarily a power to appoint to children does not authorize an appoint- ment to grandchildren.^ So a power to appoint to children alone, and executed by appointment to trustees to A, who was a child, or to his children, in their discretion, was held to be bad as an appointment, and a provisional appointment to B, another child, took effect.* In some extraordinary cases, however, where there were no children, circumstances have been held strong enough to indicate an intention on the part of the one who created the power to include grandchildren under the general term children.^ §1692. Power to appoint to "Issue." — But "issue" is a term broad enough to embrace all descendants, unless it Ringgold V. Ringgold, 1 Harr. & Gill, 11 ; Cleveland v. State Bank, 16 Ohio St. 236. It has been held in New York, that as by the statutes of that State a con- veyance may be made without any covenant, therefore the power to sell does not include power to insert covenants in the deed. Ramsey v. Waudell, 32 Hun, 482. A power to sell given to executors implies a power to look after the property until it is sold, so as to authorize them to pay expenses of superintendence, necessary re- pairs, insurance, and taxes out of the rents. Howard v. Francis, 30 N. J. Eq. 444. It is said in Earle v. New Brunswick, 38 N. J. L. ."lO, that executors having a power to sell land may divide it into lots and lay out streets through it, and thus create easements of way over the land in favor of the purchasers, if this plan is for the benefit of the estate ; and this rule was adopted in Re Sixty-seventh Street, 60 How. Pr. 264 ; and it was further held that the executors might, in pursuance of this plan, and under the power, assent to the taking of some of the land by the city as a public highway. 1 Alley V. Lawrence, 12 Gray, 375 ; Moore v. Dimond, 5 R. I. 130. 2 4 Kent, Com. 331 ; Ives v. Davenport, 3 Hill, 373. ' 2 Sugd. Pow. (ed. 1856) 253, and note of American cases ; 4 Kent, Com. 345 ; Horwitz V. Norris, 49 Penn. St. 217 ; Thorington v. Hall, 111 Ala. 323 ; s. c. 21 So. Kep. 335 ; s. c. 56 Am. St. Rep. 54. 4 Wallinger v. Wallinger, L. K. 9 Eq. 301. 6 2 Flint. Keal Prop. 550 ; Tud. Lead. Cas. 306, 307 ; 4 Kent, Com. 345, note ; Wythe V. Thurlston, Anibl. 555. BY WHOM AND HOW A POWER MAY BE EXECUTED. 617 is liuiited to children by the connection in which it is used.^ §1693. Of Certain Common Law Powers. — A power given by a will or by virtue of a legislative act is, as a general prop- osition, a common law authority. Thus where one by will gave certain legacies, and gave the residue of all his estate to certain persons named, but gave his executors a power to sell the estate and give deeds to convey the same, it was held that they might do so, and divide the proceeds, although there was an express gift of the estate itself to the devisees named. ^ So is a power of attorney, by which one acts in the name and stead of another.^ But it is not of such powers that this work is intended to treat, but only of such powers as derive their force and effect from the statute of uses, though it has some- times been held that powers created by a last will may come within this class.* § 1694. Execution of Power of Appointment : how it oper- ates. — With this restriction as to the nature of the powers here considered, it is important to bear in mind that an appointment under a power operates not as a conveyance of the land itself, but as a creation or substitution of a use to which the statute annexes the seisin.^ It is therefore alwa\s necessary, when reating a power, to raise or create a seisin in some one which shall be ready to serve the use when created by such appointment; and, to that end, the seisin which is raised for the purpose must be commensurate with the estates authorized to be created under the power. If an estate were therefore conveyed to A, to such uses as B should appoint, B could appoint no greater estate in the use than the estate in A ; and if the latter were for life only, B could not appoint to C in fee.^ 1 Wythe V. Thurlstou, Ambl. 555 ; Freeman v. Parsley, 3 Ves. 421 ; 2 Flint. Real Prop. 550. 2 Crittenden v. Fairchild, 41 N. Y. 289 ; Kinnier v. Rogers, 42 N. Y. 531. 8 1 Sugd. Pow. (ed. 1856) 1, 171, 174. * 1 Sugd. Pow. (ed. 1856) 171, note, 240 ; Chance, Pow. § 100. 5 2 Flint. Real Prop. 545 ; Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4 ; 4 Cruise, Dig. 220 ; 2 Crabb, Real Prop. 725. 6 1 Sugd. Pow. (ed. 1856) 175 ; Gilb. Uses, Sugd. ed. 127, n. ; 1 ^Vood. Conv. 498 ; 4 Kent, Com. 323. 618 POWERS. § 1695. Of the Seisin requisite to serve a Power. — The matter of seisin as connected with powers in wills perhaps can be as readily disposed of by an extract from Mr. Sugden's work on Powers as in any other way: "Where, therefore, a seisin is raised by the will, and it operates, the appointment will create a use, and there cannot be a use upon a use. But where there is no seisin to serve the power, but the testator devises at once, for example, that A shall sell, upon a sale to B the latter takes by force of the will; and as the will itself might have raised a seisin to serve uses, so it may be said the testator may authorize such seisin to be created, and therefore, if such an intention is shown or can be collected from the power, uses may be declared of B's seisin. The case appears to resolve itself into the intention of the creator of the power. " 1 § 1696. Appointor a Mere Instrument. — "Powers," he adds, "under wills and deeds, are both distinguishable from a power to convey under a letter of attorney. The estates raised by the execution of a power, whether it be created by a deed or will, take effect as if limited in the instrument creating the power. "2 It may be added from the same authority, that, "in case of a deed creating a power, the seisin or interest to serve the estate is actually raised by the deed itself, and the estates limited under the power accordingly derive their essence from that seisin. " ^ The appointor is merely an in- strument; the appointee is in by the original deed.* § 1697. Appointee takes nothing from Appointor. — The appointee takes in the same manner as if his name had been inserted in the power, or as if the power and instrument executing the power had been expressed in that giving the power. He does not take from the donee as his assignee. ° This was held in one case where the deed of appoint- ment was executed nine years after the deed creating the power. ^ 1 1 Sugd. Pow. (ed. 1856) 240. See 2 Prest. Abst. 347. 2 1 Sugd. Pow. (ed. 1856) 242. 8 1 Sugd. Pow. (ed. 1856) 242. * Watk. Conv. 271 ; Doolittle v. Lewis, 7 Johns. Ch. 45. 6 2 Crabb, Real Prop. 726, 741 ; 2 Sugd.Pow. (ed. 1856) 22 ; 2 Prest. Abst. 275. 6 Biaybrooke i;. Atty.-Gen., 9 H. L. Ca.s. 150, 166. BY WHOM AND HOW A POWER MAY BE EXECUTED. G19 § 1G98. Execution need not contain Express Reference to Power. — Altliongli, in executing a power, tlie deed or will should regularly refer to it expressly, and it is usually recited, yet it is not necessary to do this, if the act shows that the donee had in view the subject of the power at the time.^ The courts are, as a general thing, more inclined than for- merly to treat the disposition of an estate by will as an execu- tion of a power on the part of the testator, where he has such a power, although, in terms, it be a devise of his own estate. By the English statute of 7 Wm. IV. and 1 Vict. c. 26, § 27, such a devise will be taken to be in execution of such a power unless a contrary intention appear in the will. The two fol- lowing cases may illustrate the application of these two differ- ent rules. In one, a widow was authorized by her husband's will to devise the estate by her will to their children, as she should deem best. She devised it, but treated it in her will as her own estate, making no reference to the power in the husband's will, and it was held not to be a good execution of the power. 2 In the other, the testatrix created a trust by conveying her estate to trustees to hold for her benefit during her life, and, upon her decease, to convey it to such person as she should by her last will designate; or, upon her dying intestate, to her heirs at law. By her last will, she devised the estate without any reference to its being in execution of this power. But the court held it to be a good execution of the power, and therefore so far passed the estate that the trustees were decreed to convey according to the devise. The English cases are reviewed by the court, who adopt the rule stated in Blagge v. Miles, as to when a will or other instru- ment is to be construed as an execution of a power: 1st, where there is a reference in the will or instrument to the power; 2d, where there is a reference to the property which is the subject on which it is to be executed ; 3d, where the provi- sions in the will or instrument executed by the donee of the 1 1 Wood, Conv. 498, n. ; 4 Kent, Com. 334 ; 1 Sugd. Vow. (ed. 1856) 232 and note ; Story, Eq. Jur. § 1062 a, and note. If the will purports to be an execution of a power only, it will not carry other property belonging to the testator, and which its language would otherwise be broad enough to include. Beardsley v. Hotchkiss, 96 N. Y. 201. - Doe d. Davis v. Vincent, 1 Houst. 416, 427. 620 POWERS. power would otherwise be ineffectual or a mere nullity, or would not have operation except as an execution of the power. ^ This rule, when it was stated by Judge Story, was accom- panied with the remarks, that it did not include all the cases, and that it is always open to inquire what the intention is ; but that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. ^ An inference as to this intention may be drawn from the character of the property of the donee of the power. If his property not subject to the power is so small or of such a nature that the descriptions of property in the deed or will are meaningless unless construed as applying to the property subject to the power, the deed or will will be construed as an execution of the power. ^ Thus if one have a life-estate in land and a power of appointment in fee, and conveys the fee, it is an execution of the power.* If one have a life -estate, and a power of appointment at his death, he is not limited to an appointment by will, but may convey the reversion by deed.^ Under the rule, as stated in Blagge v. Miles, the English decisions were imiform that a mere resid- uary clause gave no sufficient indication of an intention to execute the power ; but by statute ^ it is now enacted that a general devise of real or personal estate operates as an execu- tion of a power, unless a contrary intention appear on the will. This rule has been adopted by the courts in Massachu- setts, particularly when the testator has the ownership and beneficial use of the property as well as a power of disposal.'' 1 Blake v. Hawkins, 96 U. S. 326 ; Hollister v. Shaw, 46 Conn. 252 ; Amory v. Meredith, 7 Allen, 397 ; Blagge v. Miles, 1 Story, 426 ; Foos v. Scarf, 55 Md. 301 ; 4 Kent, Com. 335. 2 Blagge V. Miles, supra. See Funk v. Eggleston, 92 111. 515, where the rule is criticised. 3 Blake v. Hawkins, 98 U. S. 326 ; Munson v. Berdan, 35 N. J. Eq. 376 ; Meeker v. Breintnall, 38 N. J. Eq. 345; Lindsley v. First Chr. Soc, 37 N. J. Eq. 277 ; White v. Hicks, 33 N. Y. 383. * Baird v. Boucher, 60 Miss. 329 ; Yates v. Clark, 56 Miss. 216. s Benesch v. Clark, 49 Md. 497. A will made previously to a deed which gives the testator a power of appointment cannot be considered an execution of the powei', for although the will does not come into force till after the deed is made, the question is one of intention. Fry's Est., 11 Phila. 305. 6 7 Wm. IV. ; 1 Vict. c. 26, § 27. 7 Amory v. Meredith, 7 Allen, 397 ; Willard v. "Ware, 10 Allen, 267 ; Bangs v. Smith, 98 Mass. 270. BY WHOM AND HOW A POWER MAY BE EXECUTED. 621 By statute in some of the United States, every instrument executed by the donee of a power, which he would have had no right to execute except under the power, is deemed an exe- cution of the power ; ^ and in many States it is enacted that a will purporting to convey all the real estate of the testator will be deemed an execution of a power in the testator, unless the contrary intention appears expressly or by necessary implica- tion. ^ In those States where the rule has not been changed by statute or judicial decision, the rule as given in Blagge V. Miles is still in force. ^ If the instrument by which the appointment is made conforms to the power, a reference to the power will determine what is thereby granted, and the estate therein intended to be limited.* § 1699. Example of Appointee taking under Original Deed. — As an illustration of the fact that an appointee takes under the original deed, a husband, though he cannot convey to his wife, may, if he has a power of appointment given him, appoint to her directly, because her estate arises out of the original seisin of the grantor. And the same, mutatis mutandis, would be true, if the wife, under a power, appointed to her husband.^ § 1700. Intention of Appointor a Matter of Construction. — And where the donee has a general power of appointment, as he may, if he elects so to do, vest a fee in himself or any one else, it is apprehended that the nature of the estate, whether a life-estate or a fee, for instance, intended to be limited, is to be determined by the terms made use of in the instrument executing the power, according to the ordinary 1 New York, Rev. Stat. (9th ed.) p. 1810, § 124 ; Mich., Aniiot. Stat. 1882, § 5639 ; Wis., Aiinot. Stat. 1889, § 2149 ; Minn., Stat. 1891, § 4081. 2 New York, Rev. Stat. (9th ed.) p. 1810, § 125 ; Hutton v. Benkard, 92 N. Y. 296 ; Pennsylvania, Pepper & Lewis' Dig. col. 1445, § 39 ; Va., Code 1887, § 2526 ; W. Va., Code 1899, c. 77, § 15 ; N. Car., Code 1883, § 2143 ; Ky., Stat. 1894, § 4845 ; Mich., Annot. Stat. 1882, § 4642; Wis., Annot. Stat. 1889, § 2151 ; Minn., Stat. 1891, § 4085 ; Cal., Civ. Code 1899, § 1330. 8 Blake v. Hawkins. 98 U. S. 326 ; Munson v. Berdan, 35 N. J. Eq. 376 ; Meeker v. Breintnall, 38 N. J. Eq. 345 ; White v. Hicks, 33 N. Y. 383 ; Drusadow V. Wilde, 63 Penn. St. 170 ; Foos v. Scarf, 55 Md. 309. * Jackson d. Hammond v. Veeder, 11 Johns. 169; Beardsley v. Hotchkiss, 96 N. Y. 201 ; Ren d. Hall v. Bulkeley, Doug. 292 ; 2 Prest. Abst. 272, 273, 275, 278. 6 2 Sugd. Pow. (ed. 1856) 24. See also Hall v. Bliss, 118 Mass. 664. 622 POWERS. rules of construction applied to wills or deeds declaring or transferring uses.^ § 1701. Execution of Power identical w^ith Creation of ^ Use. — So exact is the analogy, or rather the identit}^, between the creation of a use and the execution of a power of appoint- ment to uses, that, where one under such a power appointed to B and his heirs to the use of C and his heirs, B was held to be the cestui que use in whom alone the use was executed. The use declared in favor of C gave him only an equitable title as cestui que trust.^ § 1702. When a Power may be delegated. — If there is a general conveyance to A to such uses as he shall appoint, he may delegate the power to B by conveying to such uses as B shall appoint; 2 though, if the power repose personal confi- dence and trust in the donee to exercise his own judgment and discretion, he cannot refer the execution of the power to another, upon the principle delegatus non potest delegare.^ The ground upon which the first proposition rests is this : Estates arising from the execution of powers are in the nature of springing uses, and the seisin which is to supply them is not disturbed until some use is actually raised. Now, as the case supposed did not imply that there was any confidence reposed in A for the benefit of another when the power was created, no use was raised by A's conveyance if this did not declare any final beneficiary, and the statute was not called into operation until B designated the use.^ § 1703. Execution by Assignee or Devisee. — If a power be limited to a donee and his assigns, an execution of it by his assignee will be good, and this term would include a devisee of the donee. ^ § 1704. Execution where more than one Donee. — Numer- ous questions have arisen, and some of them of considerable difficulty, in respect to the execution of powers where two or 1 2 Crabb, Real Prop. 743 j Wms. Real Prop. 220. 2 2 Prest. Abst. 248 ; 1 Sugd. Pow. (ed. 1856) 229. 8 Watk. Conv. 265, Coventry's note ; 4 Cruise, Dig. 212 ; 1 Sugd. Pow. (ed. 1856; 216. * 1 Sugd. Pow. (ed. 1856) 214 ; Cruise, Dig. 211 ; Broom's Max. 665. 6 Watk. Conv. 265. 6 4 Cruise, Dig. 211 ; 1 Sugd. Pow. (ed. 1856) 215. BY WHOM AND HOW A POWER MAY BE EXECUTED. G23 more persons are named as donees. Ordinaril}', in such a case, all the donees must join in the execution of the power. And this is always true unless the contrary is expressed.^ In Montefiore v. Browne, a power of revocation having been given to D. G. and D. B., D. B. died before it was executed, it was held that D. G. could not execute it.^ § 1705. When Po-wers to t^vo or more Donees survive. — But where the power is to several persons having a trust capacity, or an office in its nature like that of the executors of a will, susceptible of survivorship, and any of them die, the power will survive unless it is given to them nominatim, as to A B and C D, naming them. In the latter case, the power would not survive unless it was coupled with an interest in the donees of the power. ^ When a will gives executors in their official capacity a power to sell, without naming the individuals who are to be clothed with such capacity, and one of such executors is removed from the office, or resigns, the power to sell survives, and can legally be executed by the remaining executor.^ Where an estate was devised to trus- tees with power to sell, and authorized the surviving or remaining trustees, if either of them died or refused or relin- quished the trust, to appoint a person in his place as trustee, by deed, with the approbation of the judge of probate, with the same powers as were given the trustees under the will, and this was done by the appointment of a new trustee, the court inclined to the opinion that such trustee became thereby vested with the legal estate by force of the devise. But if he did not, the survivors of the original trustees might execute the power as a naked trust. ^ But powers given to executors 1 4 Greenl. Cruise, Dig. 211, ii. ; Co. Lit. 113, Hargrave's note, 146; Story, Eq. Jur. § 1061 ; Franklin v. Osgood, 14 Johns. 553 ; Marks v. Tarver, 59 Ala. 335 ; Neel v. Beach, 92 Penii. St. 221 ; Wilder v. Ramsay, 95 N. Y. 7. « Montefiore v. Browne, 7 H. L. Cas. 261, 267. 3 Co. Lit. 113 «, Hargrave's note, 146 ; Story, Eq. Jur. § 1062 ; Tainter v. Clark, 13 Met. 220, 225 ; Peter v. Beverly, 10 Pet. 564 ; 1 Sugd. Pow. 144, 146 ; Loring v. Marsh, 27 Law Rep. 377, 391 ; Weimar v. Path, 43 N. J. L. 1 ; Denton V. Clark, 36 N. J. Eq. 534. * Denton v. Clark, 36 N. J. Eq. 534 ; Weimar v. Fath, 43 N.J. L. 1 ; Farrar v. McCue, 89 N. Y. 139 ; Gould v. Mather, 104 Mass. 283. 6 Webster Bank v. Eldridge, 115 Mass. 424 ; Ellis v. Boston, H. & E. R. R. Co., 107 Mass. 1-13. 624 POWERS. by will which are foreign to their duties as executors do not pass to an administrator unless the testator's intention to that effect is clear. ^ § 1706. Of Powers to Executors to sell. — Tn the case of executors, moreover, this nice distinction is recognized and prevails, that if the devise is to them to sell the estate, or for it to be sold, they take a trust of the estate with a power to seU. Whereas, if the devise is that the executors shall sell, it is a naked power, and must be executed by all ; while in the other case it is not a naked power, and may be executed by such of the executors as execute the will.'-^ § 1707. Death of Trustee with Power. — If a power is given by will to a trustee, and he neglects to exercise it, the execu- tion of it devolves upon the court; but if the trustee dies before the time prescribed for the execution of the trust, the trust fails, and the testator is to be considered as dying, thus far, intestate.^ § 1708. Powers implying Personal Confidence. — If the au- thority to sell be given as a trust to the same person named as executor, his resigning his trust as executor does not impair his power to sell.* And if the power be accompanied by a personal confidence and trust in the donee or donees, he or they alone can execute it; nor can it pass to others; it must be executed by the persons named, unless an authority to substitute another be expressly given. ^ § 1709. Powers to Persons as a Class. — Where the power is given to several persons as a class, under a term implying more than one person as to "trustees," "sons," "survivors," and the like, it may be executed by the survivors so long only as there is more than one of them.^ This would not apply to executors; for if the power is not to them, nominatim, a single survivor of the number might act. But upon the death 1 Ingle I'. Jones, 9 Wall. 486. 2 Osgood V. Franklin, 2 Johns. Ch. 19, 20 ; Bergen v. Bennett, 1 Caines, Cas. 16 ; Franklin v. Osgood, 14 Johns. 553, 562; 4 Kent, Com. 320 ; West v. Fitz, 109 111. 425. 8 Eay V. Adams, 3 Myl. & K. 237. * Tainter v. Clark, 13 Met. 220, 227. 6 Cole V. Wade, 16 Ves. 27 ; Tainter v. Clark, 13 Met. 220, 226. 6 1 Sugd. Pow. (ed. 1856) 146 ; Story, Eq. Jur. § 1062, n. BY WHOM AND HOW A POWER MAY BE EXECUTED. 625 of an executor, an administrator with the will annexed could not, as his successor, execute a power to sell lands. ^ § 1710. Of Imperative Powers to Executors. — If a will charges a trust upon land, and directs the executors to execute it, and a due execution of this requires a sale to be made, the executors may make such a sale, although they have no interest in the estate beyond doing an act that is necessary to execute the will. Such a power is not properly a naked power, which the donee may execute or not at his option; it is coupled with a trust or trusts which require the execution of the power. And a court of equity will not permit any accident, neglect of the donee, or other cause, to disappoint the interest of those who are entitled to the contemplated benefit under 1 story, Eq. Jiir. § 1062; 1 Sugd. Pow. (ed. 1856) 146; Tainter v. Clark, 13 Met. 220, 226. Contra, Drayton v. Grimke, 1 Bail. Eq. 392. Where power is given to an executor by will to sell to ])ay debts, the sale may be made by an administrator with the will annexed. See also Brown v. Arniistead, 6 Rand. 594, under a statute of Virginia. The question whether an administrator with the will annexed succeeds the executor in a power to sell land, is a question of the intention of the testator. If the power is given to the testator to exercise in his discretion, as to make a sale as he thinks expedient, or whenever he deems it expedient, or to appoint to such uonunees as he selects, the power will not go to the administrator, although it was given to the executor by virtue of his office, and not nominatim. Cooke V. Piatt, 98 N. Y. 35 ; Stoutenburgh v. Moore, 37 N. J. Eq. 63 ; Mitchell V. Spence, 62 Ala. 450 ; Dunn's Est., 13 Phila. 395. In some States by statute the power, if not discretionary, passes to the administrator. Keplinger v. Macubbin, 58 Md. 203 ; Mitchell v. Spence, supra; Mott v. Ackerman, 92 N. Y. 539. In Illinois, a power of sale is said to be per se a personal trust or confidence reposed in the executor by the testator, and consequently would not go to the administrator. NicoU V. Scott, 99 111. 537. In Chandler v. Delajdaine, 4 Del. Ch. 503, the court held that such a power, when the will was so worded that the power might not be executed till after the executor's death, as was the case, did not go to the admin- istrator, but that the court must appoint a trustee to exercise the power ; yet for security it directed the administrator to join in the deed. In Curran v. Ruth, 4 Del. Ch. 27, the testator directed a sale of land to be made, and appointed A to make the sale, and "in case of his refusal and non-acceptance from any cause he may deem sufficient, then the proper authority shall a[ppoint some suitable person to execute the same." The court held, that, A liaving died without executing the power, the administrator with the will annexed might execute it. If the will expressly gives the administrator the same power to sell as the executor, there is no question as to his ability to sell. Fish v. Coster, 28 Hun, 64. Where the execution of the power of sale is a step in the administration of the estate, as where real estate is to be converted into money, and the money distributed, it has been held that the administrator takes this power from the executor by virtue of his office. Putnam v. Story, 132 Mass. 212. But see Chandler v. Delaplaine, supra. VOL. II. — 40 626 POWERS. it.i And in such a case, the power survives. But such a power must be executed by all the trustees who are qualified to act. It cannot be delegated to a stranger or an attorney, nor can one executor act for the others. ^ 8 1711. Testamentary Povrer considered a Trust in Equity. — Every power given in a will is considered, in a court of chancery, as a trust for the benefit of a person for whose use the power is made, and as a devise or bequest to that person.^ § 1712. Revocability of Powers. — The power given by a letter of attorney to make a sale of lands ceases with the death of the one who gives it. It would simply be an absurd- ity for one, assuming to act as an attorney of another, to exe- cute a deed in a dead man's name. So a power of attorney is revocable, although, in terms, irrevocable. But where the power is coupled with an interest, it survives the donor, and is not revocable by him who creates it, during his lifetime. The donee of the power executes it in his own name, independ- ent of the existence of the donor.* And a power to sell and convey a fee may be good and effectual, although contained in a mortgage for life.^ § 1713. What is a Pow^er coupled -with an Interest. — A power is not coupled with an interest merely because the donee has, for instance, an interest in the proceed of the sale. To make a power irrevocable, unless expressly declared so, there must be an interest in the thing to be disposed of or managed. A sharing in the profits of sale is not enough.^ The interest must be in the land itself like a title to land. Thus in the cases oi Bergen v. Bennett and Wilson v. Troup, 1 Leeds v. Wakefield, 10 Gray, 517 ; Greenough v. Welles, 10 Cush. 576; Gibbs V. Marsh, 2 Met. 243 ; Bradford v. Monks, 132 Mass. 405. 2 Osgood V. Franklin, 2 Johns. Ch. 21; Franklin v. Osgood, 14 Johns. 562, 563 ; Zebach v. Smith, 3 Binn. 69 ; Berger v. Duff, 4 Johns. Ch. 368 ; Peter v. Beverly, 10 Pet. 565 ; Story, Eq. Jur. § 1062 ; Hertell v. Van Buren, 3 Edw. Ch. 20; ante, § 1492. 3 Hunt V. Rousmaniere, 2 Mason, C. C. 244 ; s. c. 8 Wheat. 207 ; 2 Sugd. Pow. (ed. 1856) 158. * Bergen v. Bennett, 1 Caines, Cas. 15 ; Hunt v. Rousmaniere, 2 Mason, C. C. 249 ; s. c. 8 Wheat. 203 ; Wilson v. Troup, 2 Cow. 236 ; Mansfield v. Mansfield, 6 Conn. 562. 6 MacGregor v. Gardner, 14 Iowa, 340; Story, Agency, § 476; Sedgwick v, Laflin, 10 Allen, 430. 6 Hartley's App., 53 Penn. 212 ; Mansfield v. Mansfield, 6 Conn. 562. BY WHOM AND HOW A POWER MAY BE EXECUTED. 627 the mortgagee had a power of sale which was held not to determine with the death or alienation of the estate by the mortgagor. In Hunt v. Rousmaniere, Chief Justice Marshall thus defines what is meant by " a power coupled with an in- terest:" "Is it an interest in the subject on which the power is to be exercised ? or is it an interest in that which is pro- duced by the exercise of the power ? We hold it to be clear, that the interest which can protect a power after the death of a person who creates it must be an interest in the thing itself; in other words, the power must be ingrafted on an estate in the thing." After stating that a power to A to sell for his own benefit would not give him an interest, nor would it if his power was to sell for the benefit of B, he adds : " A power to A to sell for the benefit of B, ingrafted on an estate convened to A, may be exercised at any time, and is not affected by the death of the person who created it. It is then a power coupled with an interest, although the person to whom it is given has no interest in its exercise. His power is coupled with an interest in the thing which enables him to execute it in his own name, and is therefore not dependent on the life of the person who created it.^ § 1714. Po"wer coupled •with Interest assignable. — Such a power of sale may be assigned to another person by a convey- ance of all the interest of the donee of the power, and may be exercised by such assignee. But it is not susceptible of divi- sion ; and therefore, if, for instance, a mortgagee with such a power were to sell a part of the estate mortgaged, the power remains in himself alone, and he only can exercise it.^ § 1715. When the Donee may and -when he must execute the Power. — From the foregoing propositions and authorities, certain important principles are established in relation to the execution of powers, among which are, 1st. If the power be simply one in which no person is interested except the donee, it is a matter of election on his part whether to exercise it or not. No court will interpose to compel him to do so.^ If the power to create an estate be a mere naked one, a failure 1 Ante, § 1682 et seq. 2 Wilson V. Troup, 2 Cow. 236, 237. 3 1 Siigd. Pow. (ed. 1856) 158 ; Sedgwick v. Laflin, 10 Allen, 432. 628 POWERS. to execute the appointment defeats the estate. Bare powers are never imperative, but depend upon the will of the donee. But if the power be a trust, equity will enforce its execution. And if the donee do not execute it, a court of equity will not permit the estate dependent on the discharge of such trust or imperative duty to fail for want of a trustee, for his default. ^ 2d. But if the power be coupled with a trust in which other persons are interested, as a power to executors to sell to pay debts, a court of equity regards it as a duty in the donee, and will compel its execution.^ 3d. If the power is coupled with an interest, the execution of it is not only a matter of right and election in the donee, but the power becomes annexed to the estate, and passes with it to an assignee of the donee. ^ § 1716. Of the Donee's Dominion over the Property. — But, after all, it will have been perceived that even powers of appointment, viewed in regard to the individuals who are to exercise them, are a species of dominion over property quite distinct from that free right of alienation which is annexed to every estate.* In many cases, however, a general power of alienation given in connection with a gift of the property to the donee of the power is construed by the courts to show that the intention of the grantor was to give the donee an estate in fee-simple, and not a life-estate in the property; but it will not be so construed if the estate is expressed to be for life.^ [And where an absolute power of disposition is held to give the donee a fee-simple, a limitation over upon failure to exer- cise the power is void as an unlawful restraint on the free right of alienation.^] § 1717. When Donee's Deed passes his own Estate or executes his Power. — Instances have already been mentioned of one having an estate in lands, and also a power to appoint the same to uses, or to sell, and the like. In such cases, if 1 Gorin v. Gordon, 38 Jliss. 214, 215; Neves v. Scott, 9 How. 196, 213. 2 Story, Eq. Jur. § 1062. 3 Wilson V. Troup, 2 Cow. 236. 4 Wms. Real Prop. 249. 5 Cory V. Cory, 37 N. J. Eq. 198 ; Donohugh v. Helme, 12 Pliila. 525 ; Foos v. Scarf, 55 Md. 301 ; Benesch v. Clark, 49 Md. 497 ; Wetter v. Walker, 62 Ga, 142 ; Jones V. Bacon, 68 Me. 34. 6 Pickering v. Langdon, 22 Me. 413 ; Burleigh v. Clough, 52 X. H. 267 ; McKenzie's Appeal, 41 Conn. 607. BY WHOM AND HOW A POWER MAY BE EXECUTED. 629 he sells the land without referring to his i:)Owcr, it will be construed to be a conveyance of his interest, and not an exe- cution of the power. The land passes by virtue of his owner- ship.^ [And the same is true where the donee leaves a will devising the residue of his estate without referring to the power, there being nothing in the will from which the inten- tion to execute the power can be gathered. ^J Bat if he has no such interest, and the instrument by which he assumes to pass the estate conforms to the requirements of the power, it will be deemed to be an execution of the power, though no reference to the power is made in such instrument. The question, however, in these cases becomes one of intent, and intention when shown will govern.^ 1 Hay V. Mayer, 8 Watts, 203 ; Jones v. Wood, 16 Penn. St. 25 ; Clere's case, 6 Rep. 18; 1 Sugd. Pow. (ed. 1856) 432 ; Den d. Nowell v. Roake, 5 Barn. & C. 720 ; Probert v. Morgan, 1 Atk. 440; Co. Lit. 271 b, Butler's note, 231 ; 4 Cruise, Dig. 212. 2 Mason v. Wheeler, 19 R. I. 21 ; s. c. 31 Atl. Rep. 426 ; s. c. 61 Am. St. Rep. 734. 8 White V. Hicks, 33 N. Y. 392, 404 ; Blagge v. Miles, 1 Story, 426. 630 POWERS. CHAPTER LXXIX. POWERS — EXCESSIVE OR DEFECTIVE EXECUTION OF POWERS. § 1718. In what the execution may be excessive. 1719. Doctrine of cy-pres. 1720. Rule applicable to excessive execution. 1721. Acceleration of second estate because first void. 1722. The appointment of a less estate. 1723. Conditions not authorized by power. 1724. Of the time of execution. 1725. Several powers : effect of priority of execution. 1726. Power to revoke use must be reserved. § 1718. In what the Execution may be excessive. — From the strictness required by law in the mode of executing a power, a question often arises, whether a donee in undertaking to execute this power has not exceeded it ; and if so, how far the execution is good within the limits of his power. This excess may be in including objects not intended to be embraced in the power, or in the quantity or amount of the subject- matter of the appointment, or in imposing conditions in the execution of the power which it does not warrant.^ The fol- lowing is an example of an excess in the execution of a power, which, to that extent, was void : A by will had a power to appoint an estate to his own children in such proportions and estates as the appointor should direct. He appointed to John for life, with a power to appoint to such uses as he should think proper; and, in default of such appointment, it was to go to his heirs. It was held, that so much of the exercise of this power as gave John a power to appoint was excessive and void. A could appoint to the children, but could not authorize these, as appointees, to appoint further. ^ § 1719. Doctrine of Cy-pres. — A principle of construction applicable to wills, but not to deeds, called the doctrine of 1 Tud. Lead. Gas. 306 ; 2 Sugd. Pow. (ed. 1856) 55. 2 Wickersham v. Savage, 58 Penn. St. 365. EXCESSIVE OR DEFECTIVE EXECUTION OP POWERS. 631 cy-pres^ is to be taken in connection with the present inquiry, and is this : If the testator have a general intent, which he undertakes to carry out by his will, and, in applying this to the particular object expressed in his will, so does it as to defeat his general intent, because the will cannot operate in the manner prescribed, courts will still so construe it as to carry out this general intent. As if, for instance, a testator limit an estate to the unborn son of his son J., and after the death of such unborn son to the sons of the latter in tail. This last limitation is too remote to be effectual in that form. But the general intent being to limit the estate first to the unborn son, and then to his issue, the courts consider the first limitation as an estate-tail in the unborn son, instead of an estate for life, as the will declares it to be.^ Upon a like principle, where a testator by his devise authorized his executor to sell his lands and to apply the proceeds in a way indicated in his will, the sale to be made after the death and only by consent of a majority of his children, and they all died in the lifetime of the wife, it was held that he might nevertheless convey the land, it being a trust-power^ the execution of which was neces- sary to the disposal of the estate, the condition, in the judg- ment of the court, being annulled by the death of the children. 2 § 1720. Rule applicable to Excessive Execution. — Now, where the doctrine of cy-pres does not apply, the rule as to the ex- cessive execution of a power seems to be, that if the excess can be separated from what is within the legitimate exercise of the power, and if the latter part is not made to depend upon that which is void, or if the objectionable part is distinct from and independent of that which is authorized to be done, the execution, so far as it is conformable to the power, will be sustained, and beyond that will be void.^ Thus where the appointment was to several, a part of whom only could take, it was held to be a good appointment as to these.^ So where 1 2 Sugd. Pow. (ed. 1856) 60, 61 ; Wms. Real Prop. 229, 230; Robinson i-. Hardcastle, 2 T. R. 241. 2 Leeds v. Wakefield, 10 Gray, 514, 519. 8 2 Sugd. Pow. (ed. 1856) 62, 75; Tad. Lead. Cas. 308; Crompe v. Barrow, 4 Ves. 681 ; Warner v. Howell, 3 Wash. C. C. 12 ; 4 Cruise, Dig. 205. * Sadler v. Pratt, 5 Sim. 632. 632 POWERS. the power was to charge X7,000,and it was executed by charg- ing £8,000, it was held to be good for the first-mentioned sum.^ When in the execution of a power the requirements presci'ibed in its creation have been complied with, and some- thing ex ahundanti added which is improper, the execution will be held good by the rules of equity, and only the excess will be void. But where there is not a complete execution of a power, and the boundaries between the excess and the execu- tion are not distinguishable, it will be bad.^ Thus, if the donee is authorized by his power to make a lease for twenty- one years, and he makes one for forty, though by law such lease would be wholly void, equity will sustain it to the extent of twenty-one years.'^ But had the devise been for two sepa- rate and distinct terms, one for twenty-one and the other for nineteen years, neither law nor equity would sustain the second, though either would hold the first to be good.* § 1721. Acceleration of Second Estate because First void. — As a general proposition, if, in executing a power, an estate is limited to take effect after a previous one, and the limitation as to such prior estate is void, the time of the subsequent one will be accelerated, and be as if the void limitation had not been made at all.^ But this rule does not apply where the previous limitation is void by reason of its violating the rule of law against perpetuities, as where the limitation in execu- tion of a power was to an unborn child, then to the children of such child, and, upon failure of issue, over to A B. The child, in this case, was the object of the power ; but the children were not, so that, as to them, the execution of the power was void. A B was an object of the power ; but as his estate was only to take effect upon the failure of issue of the child, and this, as will be shown hereafter, was so remote as to make a 1 Parker v. Parker, Gilb. Eq. 168. 2 2 Sugd. Pow. (ed. 1856) 75 ; Alexander v. Alexander, 2 Ves. Sen. 640 ; Pany V. Bowen, 3 Rep. in Chanc. 6; Tad. Lead. Cas. 317, 320; Hay v. Watkins, 3 Dru. & W. 339. 8 Roe d. Brune v. Prideaux, 10 East, 158 ; 4 Cruise, Dig. 202 ; Sinclair v. Jackson d. Field, 8 Cow. 581. * 2 Flint. Real Prop. 548 ; Tud. Lead. Cas. 317. 5 Fuller V. Fuller, Cro. Eliz. 422 ; Chedington's case, 1 Rep. 154 h ; Goodright w. Cornish, 1 Salk. 226 ; Thornby v. Fleetwood, 1 Strange, 318, 369. EXCESSIVE OR DEFECTIVE EXECUTION OP POWERS. 633 limitation dependent upon it void, it was held that the limita- tion to A B would be void accordingly, because it was only intended that A B should take upon the assumption that the previous appointees were capable of taking, and that he should take only when they had failed by a failure of issue.^ In such and similar cases, " a subsequent limitation under a will or an appointment will not be accelerated merely because the previous limitation proves bad, but the whole, so given, must go as in default of any appointment." ^ Nor does it make any difference that the objects of the prior limitation never came in esse; the validity of the appointment is referred to the time of making it.^ § 1722. The Appointment of a Less Estate under a power than what the donee might have created is not thereby ren- dered invalid.^ § 1723. Conditions not authorized by Power. — If a donee of a power, in undertaking to execute it, annex conditions to the estate he creates which are not authorized by his power, the estate will be absolute, and the conditions void.^ § 1724. Of the Time of Execution. — As to the time when a power must be executed, much will of course depend upon the nature of the powers which a donee is authorized, by the in- strument creating them, to execute. They may, for instance, as in Digges' case, be to be executed at different times over different parts of the estate. In that case the grantor cove- nanted to stand seised to the use of himself for life, remainder to the use of his son in tail, with a proviso that it should be lawful for him to revoke any of the uses or estates, and to limit new uses. It was held, that under this general power he might revoke the uses of a part of the lands at one time, and a part at another, till he revoked the whole.^ 1 Crompe v. Barrow, i Ves. Jr. 681 ; Brudenell v. Elwes, 1 East, 442 ; Burt. Real Prop. §§ 795, 796. 2 Bristow V. Warde, 2 Ves. Jr. 350, Sumner's note, 1. " Gee V. Audlej', cited in Routledge v. Dorril, 2 Ves. Jr. 363. See also the same volume of reports, page 350, note. And see, upon the general subject. Beard v. Westcott, 5 Barn. & Aid. 801 ; Tud. Lead. Cas. 308, 313 ; 2 Flint, Real Prop. 549. * 4 Cruise, Dig. 205. 6 2 Sugd. Pow. (ed. 1856) 85 ; Alexander v. Alexander, 2 Ves. Sen. 640 ; Tud. Lead. Cas. 319. 8 Digges' case, 1 Rep. 174 ; 4 Cruise, Dig. 201 ; 1 Sugd. Pow. (ed. 1856) 342. 634 POWERS. § 1725. Several Powers — Effect of Priority of Execution. — Several powers are often inserted in the same deed, and two or more of them are to be executed where no provision has been made in regard to their priority. In such a case, the intention of the settlement and the object of the powers must be the guide as to the construction. So the execution of one of two powers may supersede the estate first actually appointed, just as if the estate which supersedes the other had originally been contained in the settlement creating the power. And this must depend upon the nature of the power.i And it is the remark of Wilmot, J., in Woolston v. Woolston, that " it is the established practice in conveyancing, when it is in- tended that a power should be executed no further, to release it." 2 § 1726. Po"wer to revoke Use must be reserved. — But it should be understood, that, where the donee of a power intends to revoke the uses he appoints, he should expressly reserve this right in the deed executing the power. If such reserva- tion be not made, the appointment cannot be revoked;^ and this is especially true where the power has been executed upon receiving a valuable consideration. The extent to which this doctrine may be applied may be illustrated by the following case : Lands were settled on A. L. in 1794, upon her marriage, to the use of such person, for such estate, and as she " by any deed or deeds, with or without powers of revocation to be sealed, etc., or by her last will and testament in writing, or by any writing or writings in the nature of a will, etc., should from time to time, and as often as she should think fit, devise, direct, limit, or appoint." In 1830, she made a deed reciting this indenture, and her intention to exercise her power of ap- pointment, and reserving a power to revoke the appointment, and make any other appointment. In 1833, she made a new deed, reciting the indenture and deed of 1830, revoked it, and made a new deed of appointment, reserving the same power of revocation. In 1835, she repeated this in favor of another person ; and in 1836 she revoked the last deed, but made no 1 4 Cruise, Dig. 200; 2 Sugd. Pow. (ed. 1856) 43, 45 ; Co. Lit. 2716, Butler's note, 231 ; Woolston v. Woolston, 1 W. Bl. 281. 2 Woolston V. Woolston, 1 W. Bl. 284. » 2 Sugd. Pow. (ed. 1856) 243 ; Co. Lit. 271 6, Butler's note, 231. EXCESSIVE OR DEFECTIVE EXECUTION OF POWERS. 635 new appointment. In 1848, she made a will, reciting it to have been made in pursuance of the power created in her in 1794, and in execution of it. It was held that this was a valid devise, her power of revocation having been reserved from time to time, and the final revocation having left the power unexhausted, to be executed as it stood originally, and that the power might well be executed by will.^ 1 Saunders v. Evans, 8 H. L. Cas. 721. 636 POWERS. CHAPTER LXXX. POWERS — HOW FAR EQUITY AIDS THE EXECUTION OF POWERS. § 1727. When equity aids defective execution. 1728. Mode in which equity thus interposes. 1729. Instances. 1730. Equity will not aid to accomplish result forbidden by law. 1731. No aid where power of appointment exercised too late. 1732. The powers most usually found in modern deeds of settlement. S 1727. When Equity aids Defective Execution. — Although the law is thus strict in requiring an exact conformity to the terms of a power when executing it, equity often interposes to correct or supply a defective execution, where there has been a substantial compliance with the terms of the power. But it never interposes where the power has not been executed, and only where the interest created is what was authorized by the power, and where there is merely a defect in the matter of form, and the principal intent of the donor will be accomplished by carrying the execution into effect. ^ If one with a power to lease for twenty-one years exceed that time, the lease would be void at law, but equity might hold it good pro tanto for the term of twenty-one years.''' § 1728. The Mode in which Equity thus interposes is by re- quiring the person who is to hold the estate until the power shall have been executed to give it up in favor of him to whom the appointor intended to appoint, and for whom he took substantial steps to that end.^ § 1729. Instances. — Among the instances where this power has been exercised by courts of equity have been cases where 1 story, Eq. Jur. § 169-175 ; 2 Sugd. Pow. 88 et seq. ; Laussat's Fonbl. Eq. 238, 239, and notes ; Wms. Real Prop. 248, 249 ; 4 Cruise, Dig. 222 et seq. ; Burt. Real Prop. § 1559 ; Wilkinson v. Getty, 13 Iowa, 159. 2 Sinclair v. Jackson d. Field, 8 Cowen, 581. 8 Wms. Real Prop. 248. HOW FAR EQUITY AIDS THE EXECUTION OF POWERS. 637 the appointment was in favor of creditors ; and the terms by which the power was created required three attesting wit- nesses, but only two attested' its execution.^ So, where a similar mistake has been made, it has been exercised in favor of a bona fide purchaser. ^ So where there is a valuable con- sideration, and by accident the necessary instrument has been imperfectly executed, or the appointment was by will when it should have been by deed.^ [But equity will not aid where the execution was by deed when it should have been by will.*] In Virginia, in one case, a sale made by one of several executors was sustained upon the doctrine above stated, the sale having been made under a power to sell for the pay- ment of debts. ^ § 1730. Equity wiH not aid to accomplish Result forbidden by Law. — It may be well to remind the reader again, in con- nection with what has been said of the execution of ])owers, that the several estates created by such execution, as they arise, take their places in the settlement in the same manner and order as would have been the case had each been origi- nally limited to the appointee without the intervention of a power. So that, if it would have been invalid in the original settlement, it would be equally so as the offspring of a power created in such settlement.^ § 1731. No Aid where Power of Appointment exercised too late. — And although an appointment, when executed, is re- garded like a use created by the deed which creates the power itself, it nevertheless ordinarily takes its effect from its execution^ and not its creation. The consequence of this rule is often very important in its bearing upon the rights of indi- viduals. In one case a power was given by will to the devisee to appoint by deed or by will to such of her children as she chose, and she appointed by will to two who died in her life- 1 Gilbert, Chanc. 301 ; 2 Sngd. Pow. (ed. 1856) 125. 2 Scheuck v. Elleuwood, 3 Edw. Ch. 175 ; Cotter v. Layer, 2 P. Wins. 623. 8 Hunt V. Rousnianiere, 2 Mason, C. C. 251 ; Cotter v. Layer, 2 P. Wms. 622 ; Toilet V. Toilet, 2 P. Wms. 489 ; Goodwin v. Kilsha, Ambl. 684. * 1 Story, Eq. § 97. s Roberts v. Stanton, 2 Munf. 129, Roane, J., dissenting ; contra, M'Hae v. Farrow, 4 Hen. & M. 444. 6 Wms. Real Prop. 256 ; Co. Lit. 271 b, Butler's note, 231 ; Commonwealth r. Williams, 13 Penn. St. 29 ; Roach v. Wadliam, 6 East, 289. 638 POWERS. time. Now, if the appointment could be held to relate back to the time when the will which created the power took effect, the estate would be considered as vesting in the two, and not defeated by their death. But if it could only take effect when the will of the appointor took effect, that is, upon her death, the appointment must fail, having lapsed by the death of the appointees in the lifetime of the appointor. And it was held, that the appointment related to the time when it was effectu- ally made, and therefore that the appointment in this case failed.^ § 1732. The Powers most usually found in Modern Deeds of Settlement are those of raising a jointure in favor of a wife out of lands held by a tenant for life only, to lease lands by the donee of the power beyond the period of his own estate, and powers of sale and exchange of the lands settled in such deeds of settlement. ^ 1 Marlborough v. Godolphin, 2 Ves. Sen. 61 ; Co. Lit. 271 b, Butler's note, 231, § 3, pi. 4. 2 Cruise, Dig. Deed, c. 14-16, where the subjects are fully treated of. The reader is also referred to the Appendix for a form of a modern deed of settlement. NATURE AND CLASSIFICATION OF EXECUTOliY KEVISES. 639 CHAPTER LXXXI. EXECUTORY DEVISES — NATURE AND CLASSIFICATION OP EXECUTORY DEVISES. § 1733. Definition. 1734. Nature of executor}' devises. 1735. Analogy to springing and shifting uses. 1736. Their origin. 1737. Historical outline. 1738. Classification. 1739. First : one fee limited after another. 1740. Second : freehold limited in futuro. 1741. Devisor's interest, how atfected. 1742. Of a partial displacement of the first estate. 1743. Future limitations construed as remainders if possible. 1744. Executory devises and remainders distinguisheil. 1745. Illustration. 1746. Executory devises and remainders distinguished, continued. 1747. Limitation over upon dying without issue. 1748. Of a remainder changing to an executory devise. 1749. Of executory devise changing to remainder. 1750. Of a certain limitation after an uncertain. 1751. Illustration. 1752. Remainder after prior limitation which never takes effect. 1753. Effect upon subsequent limitations of a prior one carrjang the whole interest. 1754. Illustration. 1755. " Dying without issue," — general failure of issue. 1756. Illustration. 1757. Distinctions between executory devises and remainders. 1758. Indestructibility of executory devises. 1759. Executory devise after previous estate which fails. 1760. Alienability of executory devises. § 1733. Definition. — Mr. Fearne defines an executory de- vise, so far as it embraces lands, as "such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitation in con- veyances at common law. " ^ A Fearne, Cont. Rem. 386, and Butler's note ; 1 Jarm. Wills, 798 ; Lewis, Perpet. 74 ; Purefoy v. Rogers, 2 Wms. Saund. 388, note ; Lovett v. Lovett, 10 6-40 EXECUTORY DEVISES. § 1734. Nature of Executory Devises. — Before the nature of an executory devise was settled, there was a long struggle in the courts, which is referred to in Jones v. Roe, where it was finally held that it was a something which might be assigned or released, and would descend, and might be de- vised; that, though not in all cases properly an estate, it was not embraced in the category of naked possibilities, such as that of an heir expectant to the estate of his ancestor, but was an interest in land. The language of Willes, Ch. J., is quoted with approbation, who says : " Executory devises are not naked possibilities, but are in the nature of contingent remainders;" and another judge refers to them as "a possi- bility accompanied with an interest. " ^ But the power of alienation, devise, etc., above spoken of, must be understood to be limited to cases where the party who is to take is an ascertained person. ^ § 1735. Analogy to Springing and Shifting Uses. — Much of the learning of executory devises consists in applying rules which discriminate between them and contingent remainders, while most of the doctrine relating to springing and shifting uses is identical with that of executory devises, with this distinction, that by an executory devise the freehold itself is transferred to the future devisee substantively, without any reference to the statute of uses.^ § 1736. Their Origin. — It is stated in the above case of Jones V. Roe,^ that executory devises took their rise in the time of Elizabeth. But to understand their history fully, it is neces- sary again to refer to the doctrine of uses, whereby, before the statute of Henry VIII. u})on the subject^ the owners of lands, though not able to devise them by the common law, could do so by conveying the land to a feoffee to such uses as the feoffor should appoint by his last will. The will operated upon the use, and was enforced then through the agency of chancery.^ Phila. 538 ; MeRee v. Means, 34 Ala. 349. In the Alabama Code, remainder includes executory devises. 1 Jones V. Eoe d. Perry, 3 T. E. 88-98 ; Wilson, Uses, 157. 2 "Wilson, Uses, 159. ^ne post, § 1760. 8 1 Spence, Eq. Jur. 471 ; Lewis, Perpet. 72 ; Wms. Real Prop. 259. * Jones V. Roe d. Perry, 3 T. R. 95. s Wms. Real Prop. 257. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 641 § 1737. Historical Outline. — The statute of uscs, 27 Hen. VIII. c. 10, put an end to all devises of lands till the enact- ment of the statute of wills, 32 Hen. VIII. c. 1, a. d. 1542, authorized the holders of socage lands to devise them by last will and testament. In construing this statute, courts adopted the more liberal rules which chancery had before applied to the former devises, expounding them by the inten- tion of the testators if possible, rather on the particular cir- cumstances of each will, than by any general rules of positive law.^ And acting in analogy to what had been adopted as the rule of chancery in respect to devises of uses, as well as the rules w'hich courts of law had applied in case of customary devises, the courts sanctioned the validity of devises of future estates of freehold, as well as sales made by executors when authorized by the wills under which they acted, or where lands were devised to executors to be sold, although at common law such executory devises would have been void.^ Regard- ing them historically, it would seem that they must have been of gradual introduction and growth as a settled and defined portion of the English law; for though it was stated by Lord Kenyon, in Jones v. Iloe,^ that they took their rise in the time of Elizabeth, it was said by the same judge, in Doe V. Morgan,^ that, being found of general utility, they were established in the time of Charles I. And in the argument of Thellusson's case (1798), Mr. Hargrave states that "executory devise was not regularly admitted till about two centuries ago." But Mr. Lewis refers to cases in which the doctrine was recognized at a period anterior to that. Still the law upon the subject, especially the indestructibility of executory devises, does not seem to have been settled until the case of Pells V. Brown, ^ in 1619, though courts had often recognized as valid devises of estates of freehold to commence infuturo.^ 1 1 Spence, Eq. Jur. 470 ; 2 Bl. Com. 382. 2 Lewis, Perpet. 78, 79 ; Wnis. Real Prop. 259 ; 1 Spence, Eq. Jur. 470 ; Wilson, Uses, 56. 8 Jones V. Roe d. Perry, 3 T, R. 95. * Doe (1. Mu.ssell v. jMorgan, 3 T. R. 765. 6 Pells V. Brown, Cro. Jac. 590. 6 Fearne, Cont. Rem. 429, note ; Lewis, Perpet. 80-82, 131 ; Thellusson v. Woodford, 1 Bos. & P. N. R. 357. VOL. II. — 41 642 EXECUTORY DEVISES. Nor was the law in relation to tliera fully settled till the Duke of Norfolk's case in 1695.1 ^^d finally, Lord Mansfield, in 1785, declared that he remembered the introduction of the rule which prescribes the time in which executory devises must take effect to be for the period of a life or lives in being, and twenty-one years after wards. ^ §1738. Classification. — Mr. Fearne divides executory de- vises of freeholds into two classes, making devises of chattel interests a separate class or division. This he borrowed from the language of Powell, J., in Scatterwood v. Edge; and in this he has been followed by Mr. Cruise, and by Shaw, Ch. J., in Niglitingale v. Burrell, and will be followed in the present treatise, although Mr. Preston divides the two classes into six, and the third into two or three more.^ § 1739. First: One fee limited after another. — The first of these embraces cases where a fee-simple, for instance, is devised to one, but is to determine upon some future event, and the estate thereupon to go over to another. An instance illustrative of this principle would be a devise to a mother for life, and after her death to the testator's brother in fee^ pro- vided that if the testator's wife, then e nceinte , was delivered of a son, then the land should remain in fee to him. A son hav- ing been born, took the estate as an executory devise^ So a devise to A and his heirs, but in case he die within age, then to go to B and his heirs, B's interest is an executory devise.^ But where the devise was to A and B and their heirs, but, if either died without issue, his share was to go to the survivor, and one of them had issue and died, it had the effect to defeat the executory devise, and to change both estates into fees- simple; the contingency of either dying without issue while there was a survivor had thereby become impossible.^ So in 1 AVms. Eeal Prop. 262 and note. 2 Buckworth v. Thirkell, 3 Bos. & P. 652, n. ; Cadell v. Palmer, 10 Bing. 140; s. C. 1 Clark & F. 372. 8 Fearne, Cont. Eera. 399 ; Scatterwood v. Edge, 1 Salk. 229; 6 Cniise, Dig. 366 ; 4 Kent, Com. 268 and note ; Nightingale v. Burrell, 15 Pick. 104 ; 2 Bl. Com. 172 ; 2 Prest. Ab.st. 124. * Nightingale v. Burrell, 15 Pick. 104, 111 ; Marks r. Marks, 10 Mod. 423; Doe d. Fonnereau v. Fonnereau, Doug. 487 ; Brattle Sq. Ch. v. Grant, 3 Gray, 146, 151 ; Purefoy v. Rogers, 2 Wms. Saund. 388 «, note. 5 Brightman v. Brightman, 100 Mass. 238. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 643 a devise to A, but if she died without a child, then to B, it was held that A took a life-estate, which might become a fee upon her leaving a child, and that a fee over was limited to B, if she left no child. ^ In neither of these cases could the second estate have taken effect as a remainder, for a reason which furnishes a discriminating test whether a limitation is an executory devise or not; namely, that the prior estate in each was a fee-simple, after which, as before explained, no remainder can be limited. And then, again, if the second took effect at all, instead of waiting till the prior estate had naturally expired, it came in and superseded it, cutting it short before its regular determination, which a remainder never does.^ So where the devise was to six children in fee, with limitations over to the survivors which would have given them cross-remainders if the first devise had been to them for life only, as it was in fee, these limitations could only take effect as executory devises, and as such were held to be good. 3 The estate limited after the first limitation in fee- simple may be a fee or a less estate.* In one case, the devise was to a daughter in fee ; but if she died without lawful issue, then to the testator's other surviving children, or their repre- sentatives. All the testator's children died in the lifetime of the wife, so that she died without issue, and one only of these children left issue. It was held, that the issue of this child took the estate as executory devisees.'^ § 1740. Second: Freehold Limited in Futuro. — The second class of executory devises includes those cases where the tes- tator limits a future estate of freehold to come into existence at a period certain, or upon a contingency, but does not part with the fee. As, for instance, where a devise is made to A and his heirs, to take effect at the end of six months from the death of the testator.^ So where the testator devised an 1 Hatfield v. Sneden, 42 Barh. 6] 5, s. c. 54 N. Y. 285, 286 ; Johnson v. Sim- cock, 7 Hurlst. & N. 344. 2 Nightingale v. Burrell, 15 Pick. 104, 110. 8 Jackson d. Burhans v. Blanshan, 3 Johns. 299 ; Hilleary i;. Hilleary, 26 Md. 274. * 2 Bl. Com. 173 ; Watk. Con v. (ed. 1838) 193. 6 Jackson d. Kip v. Kip, 2 Paine, C. C. 366. 6 6 Cruise, Dig. 377 ; Fearne, Cont. Rem. 400. 644 EXECUTORY DEVISES. estate to such of his nephews as should first come to this country within six years after the testator's death, it was held that in the meantime the estate descended to the testa- tor's heirs at law.^* Such limitations would be clearly void at common law, as being independent freeholds to commence in futuro. Of the same nature is a devise to the heirs of A B who is then living, or to a feme sole and her heirs upon her marriage.^ Nor could they be sustained at common law as remainders, for the obvious reason that they were contingent limitations without any particular estate to sustain them.^ § 1741. Devisor's Interest, how affected. — A distinction, already referred to, exists between the two classes of execu- tory devises above mentioned, and it is this: In the first, the whole estate goes, in the first place, out of the devisor; in the other, nothing goes out of him until the event happens which is to give effect to the devise. In the mean time, the estate goes to the heirs of the testator, unless it should pass as a particular or residuary devise.* It may be stated, that, as devises take effect at and from the death of the testator, if a devise be in terms a present one, and nobody is in esse capable to take under it at the testator's death, it will be void ; it cannot be construed an executory devise so as to take effect when some one answering to the description comes in esse. Thus, if a devise is to the heirs of J. S., and J. S. is living at the testator's death, there is no one m esse answering to the devisee, and the devise fails. But if it had been in terms deferred to the death of J. S. as to the heir of J. S. after his death, it would have been a good executory devise to take effect at the happening of a future event. ^ Thus a * Note. — The reader will remark that much of what is said of this class of executory devises must be inapplicable in those States where, by statute, freeholds may be created to commence in futuro, and the common law in this respect is changed. 1 Chambers v. Wilson, 2 Watts, 495. 2 2 Bl. Com. 173 ; Leslie v. Marshall, 31 Barb. 566. 8 2 Bl. Com. 173. * 4 Kent, Com. 268 ; Watk. Conv. (cd. 1838) 199 ; 2 Brest. Abst. 120 ; 6 Cruise, Dig. 423. It is proposed to treat of the third class of these devises by themselves, later in the work. 6 6 Cruise, Dig. 422 ; Goodright v. Cornish, 1 Salk. 226. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 645 devise to a society which is now in existence, but not capable of taking, would be void; nor would it become valid by their subsequently acquiring a capacity to hold property. But a devise to such a society, when it shall become capable of taking, would be good as an executory devise when the society shall have acquired such capacity. And it is stated as a broad and general principle, that every executory devise is upon some condition or contingency, and takes effect upon the happening of such contingency or performance of such condi- tion. ^ So a devise to the unborn children of a person, though in prcBsenti, is good, for the intention of the devise is clearly future in its construction. ^ § 1742. Of a Partial Displacement of the First Estate. — Mr. Preston speaks of a species of executory devises "where there is a devise of an estate of inheritance, or any other estate, and on some event a particular estate to a stranger is intro- duced to take place in derogation of the estate of inheritance, and to a partial though not total exclusion of the same. "^ Mr. Powell, in his work on Devises, favors this idea of a par- tial displacement of the first estate.^ But Mr. Fearne contends against it, on the ground, that, if the second estate takes effect at all, the first is displaced altogether.^ The following case, involving this question, is understood to have arisen in the Supreme Court of Delaware, and the court were divided in opinion upon it ; namely : A devise was made to a son and his heirs; but if he died without leaving children, then to A B for life. The son died without children. A B entered and enjoyed the estate during his life ; and then the question arose, whether the heirs of the devisor or of the son became entitled to the estate. Upon the theory of Mr. Fearne, the estate of the son was wholly defeated. Upon that of Mr. Preston, the life-estate of A B was carved out of the fee in the son, and all that was left of the estate still remained in his heirs. The remarks of Mr. Powell upon the subject are : 1 Iiiglis V. Sailors' Snug Harbor, 3 Pet. 99, 114, 115 ; Porter's case, 1 Rep. 24 ; Leslie V. Marshall, 31 Barb. 565. 2 6 Cruise, Dig. 423 ; Doe v. Carleton, 1 Wils. 225. 3 2 Prest. Abst. 140. * 2 Pow. Dev. 241. 6 Fearne, Cent. Eem. 251, 530. 646 EXECUTORY DEVISES, "To this important rule, namely, that an estate subject to an executory devise to arise on a given event, is, on the happen- ing of that event, defeated only to the extent of the executory interest, the only possible objection that can be advanced is the total absence of direct authority for it, for the books do not furnish a single example of its application. "^ It may be travelling out of the record to attempt to settle a question upon which such writers differ, or are in doubt. Yet if de- vises are to be construed according to the intention of the devisors expressed in their wills, and a case occurs where, in terms, the devisor gives away his entire inheritance to an object of his bounty, thereby substituting him in his own place, except that, if a certain event happens, a third person is to share in the inheritance for a limited period, and noth- ing is said as to what shall then become of the balance of the inheritance, it would strike a common mind that this residue must belong and go to the first-named devisee, and that the particular estate given to the second devisee named should be considered as carved out of the estate of the first, rather than that the first should be regarded as defeated, and the second take effect out of the reversionary interest of the devisor to whom the estate would finally revert. § 1743. Future Limitations construed as Remainders if possi- ble. — There are various reasons for the anxiety always man- ifested by the courts to construe future limitations as remainders, if possible, instead of executory devises. In the first place, remainders were a well-defined class of interests, and the rules in regard to them well understood before execu- tory devises were fully recognized ; and the latter are, more- over, contrary to the rules and spirit of the common law in respect to the conveyance of estates. In the second place, executory devises are, in their nature, indestructible, and the lands thereby limited may be in that way locked up from alienation.'-^ The rule, therefore, which is laid down in 1 2 Pow. Dev. 241. 2 Purefoy v. Rogers, 2 Wms. Saund. 388 ; Watk. Conv. 192, Coventry's note ; Nightingale v. Burrell, 15 Pick. 104, 110 ; Doe d. Mussell v. Morgan, 3 f . R. 763 ; Hall V. Priest, 6 Gray, 18, 20 ; Parker v. Parker, 5 Met. 134, 138 ; Watk. Conv. 202 ; Doe d. Fonnereau v. Founereau, Doug. 487 ; Doe d. Poor v. Considine, 6 Wall. 475. NATURE AND CLASSIFICATION OP EXECUTORY DEVISES. 647 Purefoy v. Rogers, is recognized by all the authorities as a governing principle; namely, that "where a contingency is limited to depend npon an estate of freehold which is capable of supporting a remainder, it shall never be construed to be ah executory devise, but a contingent remainder only, and not otherwise. "1 These remarks must, of course, be limited to the first class of executory devises, for the very definition of the second class precludes the idea of a prior estate upon which the executory devise depends. In respect to the former, there are certain rules by which to distinguish them from remainders, which it may be well to state. § 1744. Executory Devises and Remainders distinguished. — lu the first place, if the prior estate is a fee-simple, the second must be an executory devise, for the reason that a remainder cannot be limited upon a fee-simple.^ When, therefore, the limitation is after a fee-simple, it will not make it any the less an executory devise, that the prior estate in fee is contin- gent and not vested, if the ulterior devise is so limited as to take effect in defeasance of the prior estate after that has vested. § 1745. Illustration. — This general proposition is illustrated in the case of Gulliver v. Wickett,^ where the devise was to the wife for life, and after her death to the child with which she was supposed to be enceinte, and to the heirs of such child forever; but if such child should die under twenty-one years of* age, leaving no issue of its bodj-, the reversion to go over. It was held, that, although the estate to the child was a contingent fee, this limitation over was an executory devise, since it was so limited, that, if the child were born, he would 1 Nightingale u. Burrell, 15 Pick. 104, 111 ; Doe d. Mussell v. I\rorgan, 3 T. R. 763 ; Wilson, Uses, 5 ; Terry v. Briggs, 12 Met. 17, 22 ; IMaiulerson v. Lukens, 23 Penn. St. 31. 2 Nightingale v. Burrell, 15 Pick. 104, 111 ; Wead v. Gray, 8 Mo. App. 515 ; Stones V. Maney, 3 Tenn. Ch. 731. So where A devised estate to B, a child, without saying what estate, but added that if the child died without issue, his share should be divided among the surviving heirs, it was held that the estate-tail which he would take on account of the words dying " without issue " was changed, by the words " surviving heirs " to a life-estate, as those words limited the failure of issue to the life of B, and that the devise over to the surviving heirs, B having died without children, was a good executory devise. Groves v. Cox, 40 N. J. L. 40. 3 Gulliver v. Wickett, 1 Wils. 105. 648 EXECUTORY DEVISES. at once have a vested remainder in fee ; but if he died without heirs of his body, under twenty-one years of age, the devise over at once came in and took effect in defeasance of such estate in fee. Nor would it make any difference that no child was born. The devise over would still take effect, and as an executory devise, and not as a remainder, from the circum- stance, that by its original limitation it was not to take effect as an alternative limitation in case simply of no child being born, but it contemplated the child's being born, the fee vest- ing in him, and his subsequently dying without issue, when, and when only, according to its terms, the limitation over was to take effect: merely because she had no child, could not, therefore, change the character of the devise to the second devisee, for wills must be construed upon the circum- stances as they stood at the testator's death, and not be varied by subsequent events.^ * § 1746. Executory Devises and Remainders distinguished, con- tinued. — While the proposition is a general one, that an estate may be devised over in either one of two events, and that in one event the devise over may operate as a contingent re- mainder, and in the other as an executory devise, it is not easy always to discriminate where this doctrine is to apply. One * TToTE. — Mr. Wilson, in his treatise on Uses, p. 19, contends, that under the decision in Doe d. Davy v. Burnsall, 6 T. R. 30, and Crump v. Norwood, 7 Taunt. 362, the limitation in Gulliver v. Wickett, called Roe v. Wickett, in Willes, Rep. 303, would now be held to be a contingent remainder, rather than an executory devise. In Doe d. Herbert v. Selby, 2 Barn. & C. 930, Bayley, J., assumes that "Gulliver w. Wickett was clearly a case of executory devise;" while in Evers v. Challis, 7 H. L. Cas. 550, Lord Cranworth expressed an opinion that it was a case of contingent remainder, and not of executory devise. But by a reference to those cases it will be found that the contingency upon which the future estate depended was the dying of the one who had the preceding life-estate without issue, or the dy- ing of such issue under the age of twenty-one, making the devise over depend ujjon a double contingency, or one with a double aspect. Whereas, in Gulliver v. Wickett, there was but a single contingency provided for in the will, nameh', the dying of the child within twenty-one years ; the fact that the wife was enceinte being assumed as a fact, and the future estate not being made to depend on that event. See Meadows v. Parry, 1 Ves. & B. 124 ; Fonnereau v. Fonnereau, 3 Atk. 315 ; Statham v. Bell, Cowp. 40 ; Jones v. Westcomb, 1 Eq. Cas. Abr. 245 ; Tud. Lead. Cas. 705-711. 1 Fearne, Cont. Rem. 396, 397 ; Roe d. Fulham v. Wickett, Willes, 303 ; Doe d. Fonnereau v. Fonnereau, Doug. 487. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 649 test given in Doe v. Selby is, that if the first limitation be of a vested fee, though determinable, the subsequent limitation or remainder is an executoj-y devise, because it is limited after a fee. But if the first be a limitation of a fee upon a contin- gency, and, upon the failure of the estate so limited, there be a devise over, and the contingency do not happen, the remain- der would be a contingent remainder, and not an executory de- vise. Thus a devise to G. for life, remainder to his children and their heirs, or if G. died without children, or, leaving issue, such issue died before twenty-one years of age, then a devise over to T. A. and D. and their heirs, it was held to be the limitation of a contingent remainder to those devisees, because G. never was married. Had he married and had a child, the limitation over would have been an executory devise. 1 § 1747. Limitation over upon dying without Issue. — It is hardly necessary to say, that an estate of freehold limited after an estate-tail would be a remainder.^ But it often is a matter of nice construction, whether a limitation after an estate to one which is to fail if he die without heirs of his body living at his death is an executory devise or a remainder. If, for instance, the devise is to A and his heirs, and if he dies without issue living, then over, it is by implication an estate-tail, the word "issue" making "heii-s" to mean heirs of his body, and showing the testator's intention that the estate shall go in a succession to such heirs. ^ A case of this kind was a devise to two children, and, if either died before arriving at twenty-one years, the survivor was to have the whole; and if both died without leaving any heirs of their bodies begotten, tbcn there was a devise over. It was held that they took estates-tail with cross-remainders, with a re- mainder over upon both dying without issue* But if tliere is not implied an intent that the issue shall take as children and heirs of the parent, but merely that the dying witliout issue is to be an event upon which the testator intended that 1 Doe d. Herbert v. Selby, 2 Barn. & C. 926, 930. 2 Hall V. Priest, 6 Gray, 17, 20. 8 Hall V. Priest, 6 Gray, 17, 21 ; Parker v. Parker, 5 Met. 134, 139. * AUeu V. Ashley Sell. Fund Tr., 102 Mass. 26; Matlack v. Roberts, 54 Penn. St. 148. 650 EXECUTORY DEVISES. the estate should cease to be one of inheritance in the family of the first taker, and should go over to a third person, the limitation becomes, as to such third person, an executory de- vise, and not a remainder. "The event of a person's dying without leaving issue surviving or not is a contingency upon which an executory devise may be limited over, as well as the happening of any other event. "^ § 1748. Of a Remainder changiug to an Executory Devise. — • A limitation by way of contingent remainder may, by a change of circumstances before the will in which it is contained takes effect by the testator's death, be changed into an exec- utory devise rather than that the intention of the devisor in respect to the devise should be defeated. But a limitation once operating as a contingent remainder can never, after the death of the testator, be changed into an executory devise. Thus where a limitation is made to A for life, remainder in tail to the sons of B, who has no sons, and A dies in the life of the testator, if the sons of B shall not then have been born, the limitation to them becomes an executory devise, just as if no previous limitation to A had been made. But had A survived the testator, whereby his estate for life would have vested, and then had died before a son was born to B, as the limitation to such son could take effect as a contingent remainder, it could not be sustained as an executory devise. ^ The case of Hopkins v. Hopkins ^ was briefly this : A devise was made to S. H. for life, and after his death to his sons; and, if he died without issue, over to the sons of J. H., who were then unborn. This was, of course, in terms, a contin- gent remainder in the sons of J. H., expectant upon their being born, and the dying of S. H. without issue. S. H. died in the life of the testator without issue, and the testator died before the birth of any son of J. H., who afterwards had a son. It was held, that this son took an executory devise 1 Nightingale v. Burrell, 15 Pick. 104, 112, 113; Purefoy v. Eogers, 2 Wins. Saund. 388 b. 2 Fearne, Cout. Rem. 525, 626, and Butler's note ; 2 Prest. Abst. 172 ; Pure- foy V. Rogers, 2 "Wins. Saund. 388 g ; Hopkins v. Hopkins, Cas. temp. Talb. 44 ; 6 Cruise, Dig. 422 ; Doe d. Harris v. Howell, 10 Barn. & C. 191. ' Hopkins v. Hopkins, Cas. temp. Talb. 44. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 651 in the same manner as if the limitation to S. H. and his sons had not been contained in the will. § 1749. Of Executory Devise changing to Remainder. — A limi- tation taking effect as an executory devise may, by a change of circumstances, become a contingent remainder, though it can never afterwards, if it fail as a remainder, enure as a condi- tional limitation or springing use. The illustration given by Mr. Preston is a limitation to A, from and after Michaelmas, for life, remainder to his first and other sons in tail. Till Michaelmas, the gift operates as an executory devise. After Michaelmas, if the estate of A vests, the interest of his son will be a remainder. ^ The rule, as stated by Mr. Williams, is, " Wherever one limitation of a devise is taken to be exec- utory, all subsequent limitations must likewise be so taken. ' However, it seems to be established, that, whenever the first limitation vests in possession, those that follow vest in in- terest at the same time, and cease to be executory, and become mere vested remainders, and subject to all the incidents of remainders. " ^ The doctrine upon the subject is stated thus by Mr. Butler, in his edition of Fearne on Contingent Re- mainders:^ "An executory devise may confer either an estate in fee-simple or a less estate. On every estate conferred by an executory devise, another executory devise may be limited ; and if the estate conferred by an executory devise be an estate in tail, for life or for years, it may be followed by a remain- der; but while the executory estate after which the remainder is to arise is in suspense, it is not properly a remainder, but a right which is to be converted into a remainder on a par- ticular event. Thus, if land is devised to A and his heirs, and, if A should not have issue living at his decease, to B for life, and after B's decease to C in fee, the limitation to C would immediately vest in C a fixed right to a remainder in fee, if A should die without issue in B's lifetime, and to an estate in fee-simple in possession if A should survive B and 1 2 Prest. Abst. 173; Wilson, Uses, 149. 2 Purefoy v. Rogers, 2 Wins. Saiind. 388 h, note. Mr. Williams cites Hopkins V. Hopkins, Cas. temp. Talb. 44, and Stephens v. Stephens, id. 228. And the same rule applies to springing and shifting uses. Wilson, Uses, 143. 8 Fearne, Cont. Hem. 503, Butler's note. 652 EXECUTORY DEVISES. afterwards die without leaving issue. But, during A's life C would only have an executory fee." § 1750. Of a Certain Limitation after an Uncertain. — So a preceding limitation, v/hether by will or by deed, to uses, may be uncertain and contingent, while a subsequent one, though to take effect in futuro, may not be uncertain or conditional, otherwise than that it may possibly expire before the former vests or fails, but may be so limited as to take effect either in default of the preceding limitation taking effect at all, or, if that should take effect, by way of remainder after it. In either of those cases, this subsequent estate must vest at the time appointed for the preceding limitation to vest; for should the preceding limitation fail of taking effect, the subsequent one will then vest in possession; and should the preceding one take effect, the subsequent one will, at the same instant, vest in interest as a remainder upon the preceding one.^ § 1751. Illustrations. — A devise was made to two trustees and their heirs till B should attain twenty-one years or have issue; and if B should attain to twenty-one, or have issue, then to B and the heirs of his body. But if he died before twenty-one, and without issue, then remainder over to C. Now, here, as the limitation to the trustees was a fee, that to B was an executory devise, as was also the limitation over to C, on B's dying under age and without issue. But supposing the limitation were to C for life, and he were to die before B was twenty-one or had issue, his estate would expire alto- gether. To that extent it would be conditional. But as the limitation to B, if it ever takes effect, is of an estate-tail only, the limitation over may be a vested one in interest, as it is to take effect either upon the death and failure of issue within the twenty-one years of B's life, or after B's estate- tail, if that should vest in him; and it must, moreover, in the latter event, take effect as a remainder after the determination of B's estate. The consequence would be, that either it would vest as a remainder upon B's executory devise taking effect as an estate in possession ; or, if B died under twenty-one and without issue, it would take effect as an estate in possession, the executory devise in the one case being changed into a 1 Feame, Cont. Rem, 506. NATURE AND CLASSIFICATION OP EXECUTORY DEVISES. 053 remainder, in the otlier into an estate in possession.^ An- other case of this kind was where a devise was made to J. S. for five years from and after the next Michaehnas remainder to C and his heirs. Here C's interest could not be a remain- der for want of a particular estate to sustain it, as J. S. had no estate until Michaelmas after the testator's death. It was consequently an executory devise. If J. S. died before Michaelmas, C would take the fee as an executory devise. If J. S. survived that point of time, C's interest was at once changed thereby into a vested remainder. ^ § 1752. Remainder after Prior Limitation which never takes EEfeot. — Where a devise or limitation by deed to uses is made after a preceding executory or contingent limitation, or is limited to take effect on a condition annexed to any preceding estate, if that preceding limitation or contingent estate should never arise or take effect, the remainder over will neverthe- less take place, the preceding estate being regarded as a prior limitation merely, and not as a preceding condition requisite and necessary to give effect to the subsequent limitation. ^ Thus, in the case of Brownsword v. Edwards, cited above, the limitation to C was, after the executory or contingent limita- tion to B, to take effect, in terms, on condition that B died before twenty-one without issue ; yet if B had died before twenty-one without issue, and thereby no estate had ever taken effect in him, the limitation to C would, nevertheless, take effect as soon as the previous limitation to B had ceased by his death. § 1753. Effect upon Subsequent Limitations of a Prior One carrying the Whole Interest. — Whatever may be the number of limitations after the first executory devise, or limitation by deed, by way of springing or shifting uses, of the whole interest, any one of them which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being, may be good, in the event that no one of the preceding executory limitations which would carry the whole interest happens to vest. But when once any preceding 1 Brownsword v. Edwards, 2 Ves. Sen. 247 ; Wilson, Uses, 143, 144 ; 6 Cruise, Dig. 412. 2 Pay's case, Cro. FAiz. 878. 8 Fearne, Cont. Kern. 508 ; Wilson, Uses, 144 ; 6 Cruise, Dig. 413. 654 EXECUTORY DEVISES. executory limitation, which carries the whole interest, hap- pens to take effect, that instant all the subsequent limitations become void, and the whole interest then becomes vested.^ § 1754. Illustration. — The case of Lion v. Burtiss will serve to illustrate and show the aj)])lication of. some of the foregoing rules. The devise in that case was to two brothers, Joseph and Medcef, of two separate parcels, with a proviso, that, if either died without lawful issue, his share should go to the survivor; and in case of the death of both, without lawful issue, that all the estates should go to John, etc. Joseph died without issue; and it was held, that as Joseph's share was to go, upon his dying without issue, to the survivor, the term must have intended a definite failure of issue at his death, and not an indefinite or general failure at some future period; and, consequently, the devises to Joseph and MedceE were each of a fee, and the devise over in the alternative was an executory devise ; consequently Medcef took Joseph's share as an executory devise, and the devise over to John was, when made, of the same character. But inasmuch as the term "survivor" applied only to the two first takers, the failure of issue, as applied to the issue of the survivor, took the ordinary meaning of that expression, and implied that the survivor took an estate-tail determinable upon a failure of his issue, so that the limitation to John became at once, on Joseph's death, a remainder expectant upon an estate-tail in Medcef. 2 § 1755. "Dying -writhout Issue" — General Failure of Issue. — ' It may be remarked that by the rule of the common law, though generally regulated now by statute, where a devise is to one and his heirs, with a devise over upon his "dying without heirs," or "heirs of his body," or "dying without having 1 Fearne, Cont. Rem. 517, Butler's note, 513; Wilson, Uses, 147. 2 Lion V. Burtiss, 20 Johns. 483 ; and see Anderson v. Jackson, 16 Johns. 382, on which it was founded, commented upon at length by Chancellor Kent, 4 Kent, Com. 279, where the Virginia case of Bells v. Gillespie, 5 Rand. 273, is considered. In that case, the majority of the court held the limitation over to the survivor an estate-tail, and not an executoiy devise. For the various forms in which the devise, on which Lion v. Burtiss arose, came up for consideration by the courts, see Edwards v. Varick, 5 Denio, 664 ; Varick v. Edwards, 11 Paige, Ch. 290; Pel- letreau v. Jackson d. Varick, 11 Wend. 110 ; Jackson d. Varick v. Waldi-on, 13 Wend. 178. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 655 issue," or "wifcliout issue," and witli no explanatory words defining the time to which this contingency is to apply, it is construed to be a general failure of issue at any time, however indefinite or remote, and which may not, therefore, happen for many generations. The intention of the devisor in such case is, therefore, held to be, that the estate shall not go over until such issue fail or become extinct, be it at ever so remote a period.^ And this often serves as a clew by which to determine whether a limitation in a devise is a remainder or an executory devise. If, as explained above in the case of Nightingale v. BurrcU, the limitation be to the first-named devisee and his heirs, and then a limitation over in case he dies without issue, the question is, whether a dying without leaving issue living at the time of his death is meant, or a general failure of issue. If the former, then the limitation over is upon a fee, and is of course an executory devise, to take effect upon the happening of a certain event which must occur, if at all, at the first devisee's death. If the latter was intended, then it restricts the meaning of heirs to such as are heirs of the devisee's body, and his estate to an estate-tail which is capable of sustaining a remainder; and, consequently, the devise over to the second devisee is a remainder. ^ § 1756. Illustrations. — This distinction between an estate after "the failure of issue," being a remainder or an execu- tory devise, is illustrated in the following cases : Testator gave an estate to B and his heirs and assigns; but in case he happened to die intestate and without issue, then to C. It was held, that, inasmuch as B had a full power of disposal of the estate, what he had given him was not a fee-tail subject to pass as a remainder upon an indefinite failure of issue, but was an executory devise of a fee, and the devise over was void. 3 A devise was to a w^ife and daughter, and to the sur- vivor. If the daughter died leaving issue, they were to take 1 Bart. Real Prop. § 665; Watk. Conv. 200, Coventry's note; Hawley v. Northampton, 8 Mass. 3, 41 ; Ide v. Ide, 5 Mass. 600, 502, 503; Parker v. Parker, 5 Met. 134, 139 ; Hall v. Priest, 6 Gray, 18, 20 ; Nightingale v. Burrell, 15 Pick. 104, 112 ; Turrill v. Northrup, 51 Conn. 33; Kay v. Scates, 37 Penn. St. 39. 2 Purefoy v. Rogers, 2 Wins. Saiind. 388 b ; Burt. Real Prop. §§ 652, 664 ; Hall V. Priest, 6 Graj^ 17, 18; Parker v. Parker, 5 Met. 134; Doe d. Poor v. Considine, 6 Wall. 475 ; Sears v. Russell, 8 Gray, 92. 3 Karker's App., 60 Penn. St. 141. 656 EXECUTORY DEVISES. the estate by descent; and if she died before the wife, her issue were to enjoy the estate from the time of her death; but if the daughter left no issue, the executor of the devisor was to sell the estate in fee, and divide the money in a manner prescribed. After the wife's death, the daughter being unmarried, she conveyed the estate, intending thereby to cut off the entail. She then took a deed from her vendee, and afterwards conveyed it to J. T. ; and the question was, if J. T. got a fee thereby. It was held that " issue " is not a technical term of limitation, like "heirs of the body," when used in a deed; and when used in a will, it depends upon the intention of the devisor. If by "issue." the testator meant children, and not the whole line of succession, it must be a word of purchase, excluding the rule in Shelley's case. It was held here to mean children, and the estate given to the daughter was not, therefore, one in tail. The "failure of issue " was a definite one at her death. If, then, the ulterior limitation after "failure of issue" be for life, it would imply a definite faihire, and not an indefinite one. So it would be if to a devisee then living. So if, on failure of issue, the estate was to go to pay testator's debts. An estate-tail may be subject to an executory devise over, on some condition or event which will abridge it. But such an executory devise may be defeated by common recovery suffered by tenant in tail which enlarges his estate into a fee, and excludes all subse- quent limitations, whether in remainder or by way of spring- ing use or executory devise. But a limitation over is not an executory devise, if after a definite failure of issue, but a remainder. When a limitation over is to take effect, not on an indefinite failure of issue of the prior taker, but a failure of "children " only, or on failure of issue within a given time, then the limitation will give the prior taker a life-estate, with a contingent remainder over, or a springing interest, or a fee with a conditional limitation over, as the case may be. It was held, that here the daughter took an estate for life, with a remainder to her children in fee, with an alternative limita- tion over in the event of her dying without issue living at her death. 1 1 Taylor v. Taylor, 63 Penn. St. 4S1 ; Kleppner v. Laverty, 70 Peiin. St. 72. NATURE AND CLASSIFICATION OF EXECUTORY DEVISES. 657 § 1757. Distinctions between Executory Devises and Remain- ders. — " An executory devise differs from a reiiiaiuder in this, among other things, that a remainder must have a particular estate to support it, while it is essential to an executory de- vise that no particular estate be in existence." "By execu- tory devise, a fee or a less estate may be limited after a fee, or a fee may be limited to commence infuturo.''^ "An execu- tory devise cannot be barred or destroyed by any act of the per- son taking the preceding fee, or conveyance even by feoffment or matter of record." "An executory devise differs from a contingent remainder, first, because an executory devise is only admitted in last wills and testaments; second, because an executory devise respects personal as well as real estate ; third, because an executory devise requires no preceding estate to support it ; fourth, because, when an estate precedes an executory devise, it is not necessary that the executory devise should vest when such preceding estate determines; fifth, because an executory devise cannot be prevented or destroyed by any alteration whatsoever in the estate out of which or after which it is limited. "^ "An executory devise needs no particular estate to support it, for it shall descend to the heir till the contingency happens. It is not like a remainder at the common law, which must vest, eo mstanti, that the particular estate determines. "^ § 1758. Indestructibility of Executory Devises. — At com- mon law, the effect upon a contingent remainder of the destruction of the estate upon which it depends, before it shall have become vested, is to destroy the remainder, as has been heretofore explained when treating of such remainders. But there is no such connection between the interest created by an executory devise and the previous estate, that the former can be affected by anything that may happen to the latter estate, with but one exception. If the executory devise is limited to take effect on an indefinite failure of issue in a preceding estate-tail, with a proviso whereby the devise over may take effect upon the death of the tenant at a particular 1 Watk. Conv. 192, 193, 199-201, and Coventry'-s note ; Fearne, Cont. Rem. 418; 2 Bl. Com. 173; McEee v. Means, 34 Ala. 349; Miller v. Cliittenden, 4 Iowa, 252 ; Smith v. Hunter, 23 lud. 582. 2 Taylor v. Biddal, 2 Mod. 292. VOL. II. — 42 658 EXECUTORY DEVISES. time, as, for instance, a devise to A and the heirs of his body, and if A die under the age of twenty -two years, then that the hind shall immediately belong to B in fee or in tail, and A suffers a recovery or bars the entail according to law during his life, the executory interest will also be barred. B's in- terest, in such a case, could not be saved as a remainder, because it was to come in abridgment of A's estate-tail, and not at its regular determination.^ But where the devise was to J. D. in fee, but if he did not marry and have issue, then there was a devise over to A, B, and C, and their heirs, and J. D., in his lifetime, conveyed the estate by deed, but died without having issue, the devise over took effect, and the con- veyance by J. D. only passed his life-estate.^ It is said to be the essence of an executory devise that it cannot be prevented or defeated by the first taker by any alteration of the estate out of which, or after which, it is limited, or by any mode of conveyance.^ § 1759. Executory Devise after Previous Estate -which fails. — Where an executory devise is limited after a previous estate, and such previous estate fails altogether, so as to be out of the case, the executory devise takes its place. Thus, where a devise was made to B, on condition that within three months after the testator's death he executed a release, and if he neg- lected to do so, then a devise over to C, and B died in the lifetime of the testator, so that the devise to him lapsed and failed altogether, the devise over to C took effect, and was valid.* So, where there was a devise to A for life, remainder to B in fee, with a proviso that if B died without issue, then over to persons named, and B died in the life of the testator, it was held, that the devise over took effect as if there had been no devise to B.^ § 1760. Alienability of Executory Devises. — On the other 1 2 Prest. AKst. 120, 121 ; 4 Cruise, Dig. 349 ; Watk. Conv. 202, Coventry's note ; Fearne, Cont. Rem. 423, 424 ; Wms. Real Prop. 259 ; Den d. Southerland V. Cox, 3 Dev. 394. Sale of the land on execution against first devisee does not affect executory devisee's right. Brattle Sq. Ch. v. Grant, 3 Gray, 146, 150. 2 Downing v. Wherrin, 19 N. H. 9. ^ Andrews v. Rove, 12 Rich. 544. ♦ Avelj'n V. Ward, 1 Ves. Sen. 420 ; Bullock v. Bennett, 31 E. L. & Eq. 463. 5 Mathis V. Hammond, 6 Rich. Eq. 121. NATUrwE AND CLASSIFICATION OF EXECUTORY DEVISES. G59 hand, in considcrini; how far the interest of an executory devise may be the subject of conveyance, it is said that "one of the properties of executory devises is, that they cannot ])C aliened or barred by any mode of conveyance; therefore, until the contingency happens upon which the limitation is to take place, executory devises create a kind of perpetuity, " ^ though equity will regard a conveyance as an agreement to convey, and hold the grantor as trustee of the grantee when the estate takes effect in the grantor. ^ The above doctrine is that of the common law, since by statute 8 & 9 Vict. c. lOG, § 6, all executory interests may now bo disposed of by deed.^ And the person entitled to the executory estate may bar his own claim by release to the first taker in possession, or assign it in equity for a valuable consideration, or devise it by his last v/ill, independently of the above statute.^ 1 Piirefoy v. Rogers, 2 Wms. Saund. 388 d ; Wms. Real Prop. 260 ; Brattle Sq. Ch. V. Grant, 3 Giay, 161 ; Hall v. Chaffee, 14 N. H. 215 ; post, § 1761. 2 Edwards v. Varick, 5 Denio, 664 ; Wright v. Wright, 1 Ves. Sen. 409. 8 Wms. Real Prop. 260 ; Mass. Gen. Stat. c. 90, § 37. 4 Watk. Conv. 202 ; Jones v. Roe d. Perry, 3 T. R. 88. 6G0 EXECUTORY DEVISES. CHAPTER LXXXII. EXECUTORY DEVISES — INTERESTS OF EXECUTORY DEVISEES. § 1761. Of the interest of an executory devisee before it vests in possession. 1762. Such interest not an estate. 1763. Distinction between vesting in interest and vesting in possession. 1764. Necessity for the distinction. 1765. Illustration. 1766. Illustration. 1767. Limitation after prior one that fails. 176S. Devises held executory though not so in terms. 1769. Executory devisee may restrain waste. 1770. Executory devise void because first taker has an absolute estate. 1771. Of curtesy in estate subject to executory devise. § 1761. Of the Interest of an Executory Devisee before it vests in Possession. — Although this interest is not a subject of grant or alienation at common law/ it seems to be estab- lished, that contingent and executory estates and possibilities accompanied ivith an interest are descendible to the heir, or transmissible to the representative of a person dying; or may, at least in equity, be granted or assigned, and may be devised by him before the contingency upon which they are to depend takes effect.^ Thus, where, after a devise to A and his heirs, there was a devise to B and his heirs, upon A's dying under twenty-one years of age, it was held, that, if B survived the testator, his interest would descend to his heirs, though he died before the contingency on which it depended had hap- pened.^ So where the devise was to M. and S., daughters, 1 Ante, § 1760, Wright v. Wright, 1 Ves. Sen. 411 ; 6 Cruise, Dig. 428 ; King V. Withers, Cas. temp. Talb. 116, 123 ; Hammington v. Rudyard, cited 10 Rep. 52 &. 2 Purefoy v. Rogers, 2 Wms. Saund. 388 1 ; 2 Cruise, Dig, 426 ; Den d. Man- ners V. Manners, 20 N. J. L. 142 ; Kean v. HofFecker, 2 Harring. 103 ; Lewis v. Smith, 1 Ired. 145 ; Hall v. Robinson, 3 Jones (N. C), Eq. 348 ; Watk. Conv. 199, n., 202 ; Stover w. Eycleshimer, 46 Barb. 87 ; post, § 1915. 8 Goodtitle v. Wood, Fearne, Cont. Rem. 548, 551 ; Willes, 211 ; Goodright v. Searle, 2 Wils. 29 ; Sheriff v. Wrothom, Cro. Jac. 509. INTERESTS OP EXECUTORY DEVISEES. 661 and their heirs, and if either died unmarried, then to Robert and his heirs, Robert, in the lifetime of the daughters, con- veyed and granted to his younger son all right, title, claim, or demand he had to any estate either in law or equity under the will of the devisor, and died before the sisters. After their death, unmarried, Robert's heir claimed the land against this grant to the younger son. The Chancellor, in giving an opinion, remarked that this interest was, " in notion of law, a possibility, which, though the law will not permit to be granted or devised, may still be released, as all sorts of con- tingencies may, to the owner of the land," and referred to Thomas v. Freeman. ^ And he held that, in this court (of chancery), a grant of a contingent interest in lands would be sustained, if made for a valuable consideration, and denied the right of the heir to claim in this case against the younger son. 2 In another case, the court of law held the possibility of an executory devise to be coupled with an interest; and that if the person is ascertained, and in esse, who is to take if the devise takes effect, it may be devised by such person before the contingency happens.^ But if the person who is to take is not ascertained, there can be no valid assignment or devise of an executory interest.** * Note. — By the statute 1 Vict. c. 26, § 3, a man may now devise any kind of estate or interest in real property which would descend to him. And all execu- tory interests may he conveyed by deed, by statute 8 & 9 Vict. c. 106, § 6. Wms. RL'al Prop. 168, 260. In New York, expectant estates are descendible, devisable, and alienable in the same manner as estates in possession. New York, Kev. Stat. (9th ed.) p. 1793, § 35 ; Lalor, Real Est. 106 ; Pond v. Bergh, 10 Paige, 140. And such an interest belonging to a minor in Kentucky may be sold by his guardian by order of court. Nutter V. Piussell, 3 Met. (Ky. ) 166. In Massachusetts, where an executory devise or other estate in expectancy is so granted or limited to any person, that, in case of his death before the happening of ^ Thomas v. Freeman, 2 Vern. 563. 2 Wright V. Wright, 1 Ves. Sen. 409 ; Edwards v. Varick, 5 Penio, 682 ; Watk. Conv. (ed. 1838) 202. 8 Jones V. Roe d. Perry, 3 T. R. 8S ; Wntk. Conv. 199, Coventry's note ; 2 Prest. Conv. 269, 270 ; Goodtitle v. Wood, Willes, 211 ; Jackson d. Varick v. Waldron, 13 Wend. 178. * 2 Prest. Conv. 270 ; 6 Cruise. Dig. 27, note ; Smith, Real Prop. 248 ; Stover V. Evcleshiiner, 46 Barb. 87. Nor will it pass to an assignee in bankruptcy. Bristol V. Atwater, 50 Conn. 402. 662 EXECUTORY DEVISES. § 17G2. Such Interest not an Estate. — But still, SO far from the executory devisee taking any estate, in the proper sense of the term, even where the executory devise is dependent on the arrival of a future period only, and not on a contingent event, so that the executory devise is sure to take effect on the day appointed, the heir will take the whole fee in the interim, and not a mere term bounded by the ascertained continuance of his estate. In case the future interest is created by deed to uses, the fee will be in him from whom the land moves, and who corresponds to the heir in case of a devise. The reasons, which are technical in their character, as given by Mr. Butler, are these : The executory devisee can have no estate in possession, as he has no right of present enjoyment. He has no estate in remainder, for his right is not expectant upon a prior determinable estate. He has not a contingent interest, as he is in being, an ascertained per- son, and the event on which he is to take is certain; and he has not a vested estate, as the whole is vested in the grantor if the limitation is by deed, or the testator's heir, if it is by will, until the event happens. He has therefore no estate, the limitation being executory, and conferring on him a cer- tain fixed right to an estate in possession at a future time.^ This may seem somewhat refined and speculative; but it is not difficult to imagine cases where distinctions as nice as these may be important in determining the effect of wills and conveyances of estates, and the rights of parties under them. § 1763. Distinction betvreen vesting in Interest and vesting in Possession. —This distinction should be kept in mind, between the vesting of a right to a future estate of freehold, the vesting of 2i freehold estate in interest, and the vesting of the same in possession. It may be illustrated by the case of a limitation to A for two hundred years, remainder to the unborn son of B, then living, in tail, remainder over. Now, for obvious reasons, the limitation to the unborn son cannot be a remain- the contingency, the estate will descend to his heirs in fee-simple, such person may, before the happening of the contingency, sell, assign, or devise the premises subject to the contingency. Gen. Stat. c. 90, § 37. The same is the law of Maine. Kev. Stat. 1883, c. 73, § 3. 1 Feame, Cont. Rem. 1, Butler's note; "Watk. Conv. 199, Coventrj-'s note; Wms. Real Prop. 260 ; 1 Jarm. Wills, 792. INTERESTS OF EXECUTORY DEVISEES. 663 der, for it is a contingent freehold, and there is no freehold estate to sustain it. It is not too remote to be a good execu- tory devise, since the son must be born, if at all, in the life of B, or a few months after his decease ; and his estate being one in tail, would, if it took effect, support the limitation of the remainder over. If B died without a son, the devise over at once took effect, subject only to the term of A for years. But if a son was born to B, the freehold would vest in him, although his enjoyment or possession of the land would be postponed till after the expiration of the term in A.^ And the remainder over, expectant upon the determination of the estate-tail in the son, would at once become vested in interest, if to a person then ascertained in esse."^ But if the limitation to the unborn son had been too remote to take effect as an executory devise, the remainder over, dependent upon it, would have failed altogether.^ If, however, the limitation as an executory devise had been upon two events, one too remote and the other not, and the latter event had happened, the devise would have taken effect and been valid.'* § 1764. Necessity for the Distinction. — This distinction be- tween the vesting of a right, and the vesting of an interest in possession, is often referred to in determining whether a de- vise, for instance, is of a contingent right depending upon the happening of a prior event, or of a right which is absolute, and the enjoyment of which only is postponed until the hap- pening of such event. The proposition is undoubted, that a contingent interest may vest in right, though it does not in possession, and that contingent or executory interests may be as completely vested as if they were in possession. And a future interest may vest, and afterwards be liable to be divested by the happening of some event. ^ An estate to A, on his arriving at the age of twenty -four, and in case he does 1 Gore V. Gore, 2 P. "Wms. 28 ; 6 Cruise, Dig. 380 ; Wilson, Uses, 68. 2 6 Cruise, Dig. 410; Fearne, Cont. Rem. 526. 8 2 Prest. Abst. 155 ; 6 Cruise, Dig. 381, 409 ; Proctor v. Bp. of Bath, 2 II. Bl. 358; Wilson, Uses, 146. SeeFeame, Posth. Works, 283-293. * Minter v. Wraith, 13 Sim. 52 ; Jackson v. Phillips, 14 Allen, 572. 5 Barnes v. Allen, 1 Brown, Ch. 181 ; Malim v. Keighley, 2 "Ves. Jr. 335, Sum- ner's note ; Perry v. Woods, 3 Ves. 208, Sumner's note ; Blanchard v. Blauchard, 1 Allen, 223 ; McCullough v. Fenton, 65 Penn. St. 419. 664 EXECUTORY DEVISES. not attain to that age, or leave issue, then to C D, is a vested estate in A, subject to be divested if he die before he is twenty-four and without issue. ^ § 1765. Illustration. — The last citations are mostly cases of personal estate ; but the following is sufficient to explain what has been said upon the point in the text, if different rules were adopted as to real and personal estate. The testator devised in this case to the wife all his estate, including the realty, so long as she remained his widow. If she married again, he gave her half the personal and the improvement of one-third of the real estate for life. He gave to N. and his heirs all his real estate, and willed that he should come into possession of two-thirds on the wife's marriage, and the other third at her decease; but that if N. died before coming into possession of the estate, and should leave no issue, then he gave it all to E. and G., and their heirs, in equal shares, they to come into possession at the respective times when N. was to have taken possession if he had lived. If either E. or G. came into possession of the same, and should have no issue, his share to go to the survivor and his heirs. The wife did not marry again. The first question was, whether, as N. was only to come into possession upon her marriage, his estate in the two-thirds was not defeated by her dying unmarried, and that, therefore, his estate in the two-thirds was contingent. But the court held, that the estate was vested in N., but sub- ject to the right of the wife, so as not to vest in possession so long as she lived unmarried, and liable to be divested if he died without issue before her death. Had N. died without issue in the lifetime of the wife, E. and G. would have taken the estate by way of executory devise.^ § 1766. Illustration — Another case illustrating the differ- ence there is between devising a vested estate, of which merely the future enjoyment depends upon a contingency, and the devise of a mere right to an estate which depends upon a con- tingency for its ever vesting as an estate in interest, would be this: "A, having a reversion subject to an estate-tail, de- vised it to J. S. J. S., in such case, immediately upon the 1 Whitter v. Bremridge, L. E. 2 Eq. 736, 2 Ferson v. Dodge, 23 Pick. 287. INTERESTS OF EXECUTORY DEVISEES. 665 death of the testator, liad a vested estate, such as the testator's own estate was. But the period of its enjoyment must neces- sarily be postponed till the line of issue of the tenant in tail should have failed. The devise, in such a case, is an exe- cuted, and not an executory one. But if, instead of taking this form, the devise had been to J. S. upon or after the failure of the issue of a stranger, it would, as heretofore ex- plained, have been an executory devise, and void by reason of being too remote. ^ And the same law prevails as to spring- ing and shifting uses.^ § 1767. Limitation after prior one that fails. — At the hazard of repetition, the following proposition is given, as affording a clearer understanding of the effect of successive limitations of the same estate: All limitations subsequent to an executory devise are themselves executory. But if an executory devise fail to take effect at all, by reason, for example, of the devisee dying in the life of the devisor, and the devise lapsing, or by the limitation thereby made being void, the subsequent limita- tions of the estate would take effect in the same manner as if such void or lapsed devise had never been made, unless the subsequent limitations are made to depend for their vesting upon the same condition on which the prior estate depended, and that, being too remote, was void. In other words, if the estates limited were fees, these would be deemed to be succes- sive limitations, not upon or after each other, for each in terms takes the entire estate, but in the nature of alternative limitations, one being a substitute for the other; and if, from any cause, any one fails or is void, the next in order takes its place, if within the proper limits of perpetuity.^ § 1768. Devises held executory though not so in Terms. — There are cases where courts construe a devise as an executory one, though not so in terms, in order to give effect to the intent of the testator. Thus, if a devise were to the heirs of J. S., or the oldest son of A. B., and at the death of the tes- 1 Badger v. Lloyd, 1 Ld. Raj'm. 523 ; s. c. 1 Salk. 233. See also Badge v. Floyd, Comyns, 65 ; Fearne, Cont. Rem. 524, Butler's note. 2 Wilson, Uses, 78, 79. 8 Fearne, Posth. Works, 239, 292 ; Lewis, Perpet. 421 ; 6 Cruise, Dig. 412 ; Fearne, Cont. Rem. 508, and Butler's note; 1 Jarm. Wills, 789-791. See ante, § 1752 ; Burbank v. Whitney, 24 Pick. 146 ; Jackson v. Phillips, 14 Allen, 572. 666 EXECUTORY DEVISES. tator J. S. were alive, or A. B. had no son, the devise would literally be void, because there was then no such person extant, and wills speak at and from the testator's death. But in such cases courts hold the devise to be future and executory in favor of whoever may be the heirs of J. S. at his death, or of A. B. 's son, whenever born, if from any circumstances, however slight, the will admits of that construction.^ So where a devisor gave an estate by his will to his wife for life, remainder to his two children, and both wife and children were slaves. In his will, he directed his executors to pur- chase the freedom of his children. His wife died during his life. It was held, 1st, that, upon his death, the remainder dependent upon his wife's death took effect, but for the in- capacity in the devisees to take by reason of being slaves ; 2d, that, when the executor had complied with the directions in the will by redeeming them to freedom, the children took as executory devisees under the will.^ And where the devise was to a wife for life, with a remainder from and after her death, contingent in its terms, and she declined to accept the devise, it was held, that the devise over took effect as an executory devise.^ So where the devise was to a wife for life, with remainder over, and she waived the devise and took her dower, the devise over took effect at once, as if no prior estate had been limited ; though it hardly need be observed, that it was not to illustrate an executory devise, but the effect given by law, where a prior devise fails, to a subsequent one, that the cases mentioned below are cited here* § 1769. Executory Devisee may restrain "Waste. — If one In possession of lands, in which another has an interest as an executory devisee, undertakes to commit malicious or unrea- sonable waste, equity will interpose in favor of such devisee to prevent its commission.^ 1 6 Cruise, Dig. 422 ; Goodright v. Cornish, 1 Salk. 226 ; Doe v. Carleton, 1 Wils. 225 ; Fearne, Cent. Rem. 537 ; Harris v. Barnes, 4 Burr. 2157. 2 Darcus v. Crump, 6 B. Men. 365. 8 Thompson v. Hoop, 6 Ohio St. 480. * Yeaton v. Roberts, 28 N. H. 465, 468 ; Holderby v. Walker, 3 Jones (N. C), Eq. 46 ; 1 Jarm. Wills, 513. 6 Robinson y. Litton, 3 Atk. 209. INTERESTS OF EXECUTORY DEVISEES. 6G7 § 1770. Executory Devise void because first Taker has an Absolute Estate. — There is one class of cases, where, thoujjjh there be a devise in form, that is, a limitation over after a preceding estate, it may be inoperative and void, by reason of the first estate being constructively an absolute fee. The question in such cases grows out of the character of the first estate ; that is, whether it is determinable or not. The test usually applied in such cases is, whether or not the first taker has the right and power of absolute disposal of the estate. If he has, it is construed to be an unqualified gift to him, and the devise over will be void. Thus, a devise of certain lands to one's son A and his heirs and assigns forever, witli this clause, "It is my will that if my son A shall die and leave no lawful heirs, what estate he shall leave, to be equally divided between J. and N., to them and their heirs forever;" in terms, this is an executory devise to J. and N., expectant upon A's dying without lawful heirs. But as the latter clause limits this to only what A "shall leave," it implies that he may, if he please, use or dispose of the whole, and therefore what he leaves, if anything, is his own, and not something in which the testator had a reversionary interest.^ But a devise to A B, to his heirs and assigns forever, to his use, behoof, and benefit in fee-simple, but, should he die without issue, it is my wish and will he should give it to J. S., was held a good executory devise to J. S.^ Though if an estate is given to one generally, with a power of disposal, it carries a fee, if it be to one for life in terms, it will not enlarge it to a fee, that there is a power of disposal of the reversion annexed 1 Ide V. Ide, 5 Mass. 500; ante, § 1535 ; Atty.-Gen. v. Hall, Fitzg. 314; Bur- bank V. Whitnej', 24 Pick. 146; Kelley r. Meins, 135 Mass. 231 ; Ranisdell v. Ramsdell, 21 Me. 288 ; Pickering i;. Langdon, 22 Me. 413 ; Jones u. Bacon, 68 Me. 34; Jackson v. Bull, 10 Johns. 19; Jackson d. Livingston v. Robins, 15 Johns. 169 ; s. c. 16 Johns. 568 ; 1 Jarm, Wills, Perk. ed. 792, n. ; Hall v. Rob- inson, 3 Jones (N. C), Eq. 348 ; McRee v. Means, 34 Ala. 349, 372 ; Ross v. Ross, 1 Jac. & Walk. 154 ; Bourn v. Gibbs, 1 Russ. & M. 615 ; Newland v. Newland, 1 Jones (N.G.), 463; McKenzie's App., 41 Conn. 607 ; Howard v. Carusi, 109 U. S. 725 ; Hoxsey v. Hoxsey, 37 N. J. Ecj. 21. But see Smith v. Bell, 6 Pet. 68 ; Bull V. Kingston, 1 Meriv. 314 ; Steveusou v. Glover, 1 C. B. 448 ; Sears v. Russell, 8 Gray, 100. 2 McRee v. Means, 34 Ala. 349, 372; ante, § 147. 6C8 EXECUTORY DEVISES. to the estate given. ^ Thus if one devise certain lands to her use, and to be at her disposal, it is a fee, although there be a devise over; but if it were for her use and maintenance, with a power of disposal, if she should require it, or deem it expe- dient to do so, with a devise over, it would give her a life- estate only, with a conditional power of disposal. ^ And where it was given to a wife to dispose of in any way she saw fit during life, with remainder to J. S., it was held to be a good remainder, and that she could not defeat it by any act of hers.^ Nor does a power appended to an express estate for life enlarge it into a fee.^ But where it was given to A for life, or to dispose of as she should see fit, it was held to be a devise of a fee.^ But if, in a case like that above supposed, the power of disposal in the first taker is merely a technical power of appointment, and not a right to dispose of the estate as his own property, a limitation over as an executory devise may be good, though, if such power were executed, it might leave nothing to pass by the devise over.^ 1 Jackson d. Livingston v. Robins, 16 Johns. 588 ; Flintham's App., 11 Serg. & R. 19; Morris v. Phaler, 1 Watts, 390 ; Hess v. Hess, 5 AVatts, 191 ; Smith v. Starr, 3 Whart. 62; Girard L. Ins. Co. r. Chambers, 46 Penn. St. 490. 2 Terry v. Wiggins, 47 N. Y. 512 ; Burleigh v. Clough, 52 N. H. 267 ; and a remainder over in such case would be good as a vested estate. 3 Edwards v. Gibbs, 39 i\Iiss. 174 ; Eail v. Dotson, 14 Sm. & M. 176. * Andrews v. Brumfield, 32 Miss. 115 ; Smith v. Snow, 123 Mass. 323 ; Tuft v. Tuft, 130 Mass. 461. 6 Second Ref. Presb. Ch. v. Disbrow, 52 Penn. St. 219. The rule stated in the above paragraph is generally followed by the courts. Thus in Hoxsey v. Hoxsey, 37 N. J. Eq. 21, where the testator gave property by will to his wife for her use and enjoyment during her natural life, and after her death, unless she shall have earlier divided the same or disposed of it by will, the property to be divided among the children, and the will also contained this statement: "I have willed to my wife all vny estate, real and personal, to her and her heirs and assigns forever, untrammelled by any restrictions and conditions, and only to be controlled in the manner of managing the same, so far as my wishes above expressed may control her in the manner of disposing of the same," it was held, on a bill for construction of the will, that the wife was given an estate in fee, with absolute power of disposal, and that the executory devise over was repugnant and void. So in Kelley v. Meins, 135 Mass. 231 ; Jones v. Bacon, 68 Me. 34 ; Stuart v. Walker, 72 Me. 145 ; State v. Smith, 52 Conn. 557 ; Van Home v. Campbell, 100 N. Y. 287, 310. 6 Tomlinson v. Dighton, 1 P. Wms. 171 ; Lerned v. Bridge, 17 Pick. 339; Rubey v. Barnett, 12 Mo. 1 ; Reid v. Shergold, 10 Ves. 370 ; Audrew.s v. Roye, 12 Rich. 536. INTERESTS OP EXECUTORY DEVISEES. 669 § 1771. Of Curtesy in Estate subject to Executory Devise. — It may be added, that if ^feme covert is seised of a fee-siuiple, and there is an executory devise over, and the estate is de- feated by the happening of the event on which the executory devise depends, the husband would nevertheless be entitled to curtesy in the same.^ 1 6 Cruise, Dig. 374 ; ante, § 322. 670 EXECUTORY DEVISES OF CHATTEL INTERESTS. CHAPTER LXXXIII. EXECUTORY DEVISES OF CHATTEL INTERESTS. § 1772. Of devises of chattels. 1773. Limitation of a chattel as a freehold, void at common law. 1774. Devise of a term during life carried entire term. 1775. No estate-tail of a chattel. 1776. Remainder after life term, when good. 1777. Devise of the use of a chattel interest. 1778. Nature of use often delines estate. 1779. Devise of personalty for life, with remainder. 1780. Devise of personalty for subsistence of devisee. 178h Devise over after absolute devise is void. 1782. Construction of "failure of issue " in case of devise of chattels. 1783. Executory devise to unknown person. 1784. Holder of term cannot affect executory devisee's interest. § 1772. Of Devises of Chattels. — The third class of execu- tory devises is of such as relate to personal estate and to chattel interests in lands,, and as arise from giving to these the qualities of freeholds and estates of inheritance in lands. ^ § 1773. Limitation of a Chattel as a Freehold, void at Com- mon Law. — In the theory of the law, and by the definition of estates, a freehold was deemed of a higher and more compre- hensive nature thaii-a term for years; and consequently, if there is a limitation of a term for years to one for life, or for such indefinite period of time as would constitute a freehold estate, any limitation over of the balance of such term, how- ever long it might be, by the way of remainder, would be void. On the other hand, an estate of freehold could never be de- rived from an estate for years; and when an estate for years came to one who had freehold in the same lands, the term, however long, was merged in the freehold, and became annihilated. ^ 1 Watk. Conv. 42, Morley's note ; Fearne, Cont. Rem. 401 ; Burt. Eeal Prop. §946. 2 Burt. Eeal Prop. §§ 897, 946 ; Cooper v. Cooper, 2 Brev. 35.5 ; Duke of Nor- folk's case, 3 Cas. in Ch. 33 ; Lewis, Perpet. 84 ; Fearne, Cont. Rem. 4, n. 401 ; 1 Jarm. Wills, 793, and Perkins' note. 8 1 Cruise, Dig. 229 ; Burt. Eeal Prop. § 897. EXECUTORY DEVISES OF CHATTEL INTERESTS. GTl 8 1774. Devise of a Term during Life carried Entire Term. — The consequence of these doctrines was, that, by the common law, a devise of a terra to one during his life was a disposition of the entire term. Nothing Avas supposed to be left that could pass, and therefore there could be no limitation over of a term for years, in remainder after an estate for life or any freehold estate in the terin.i §1775. No Estate-tail of a Chattel. — Another peculiarity in respect to chattel interests in lands, as well as personal estates generally, is, that there can be no estate-tail predicated of them. The statute de donis applies only to tenements, that is, something of which tenure, in the feudal sense, can be predicated, and not to chattel interests or chattels them- selves.2 And the consequence of this is, that, if one devises to another a chattel interest to him and the heirs of his body, it is a devise of an absolute estate, or gift of the entire property. 2 § 1776. Remainder after Life Term, -w^hen good. — The legal inferences to be drawn from these several principles and propositions are, that upon a devise of a term for life, a devise over of a remainder of such term, or with a remainder over after a devise to one in tail, would be void. But, in order to carry out the intention of testator, such limitations were allowed by the way of executory devise; and this was done as early as the tenth of Elizabeth. And now every future be- quest of personal property, whether it be or be not preceded by a prior bequest, or be limited on a certain or uncertain event, is an executory bequest, and falls under the rules by which that mode of limitation is regulated.** * Note. — The analogy between this class of executory devises aud that where a fee is limited after another fee is obvious, when it is considered that in both cases it is the limitation of an estate to one, when in terms the whole estate had, according to the rules of the common law, been already given to another. 1 Tissen i-. Tissen, 1 P. Wms. 500 ; Burt. Real Prop. § 946 ; 1 Jarm. Wills, Perk. ed. 893, n. ; Manning's case, 8 Piep. 95 ; 4 Kent, Com. 269. 2 Fearne, Cont. Rem. 461, 463; Burt. Real Prop. § 948; Lovies' case, 10 Rep. 87 ; Lewis, Perpet. 318 ; Seal v. Seal, Prec. in Chanc. 421. 3 Burt. Real Prop. § 948 ; Fearne, Cont. Rem. 463, and Butler's note ; 2 Rop. Leg. (2(1 ed.) 393 ; Leventhorpe v. Ashbie, 1 RoUe, Abr. 831 ; Tud. Lead. Cas. 701 ; Doe d. Lyde v. L.vde, 1 T. R. 593 ; Powell v. Glenn, 21 Ala. 458. * Fearne, Cont. Rem. 402, and Butler's note; Tissen v. Tissen, 1 P. "Wms. 672 EXECUTORY DEVISES OF CHATTEL INTERESTS. § 1777. Devise of the Use of a Chattel Interest. — And the distinction that once prevailed between the devise of the use of a chattel interest, and the devise of such interest itself, is now practically exploded, although executory devises are sus- tained upon a theoretical idea akin to such a distinction. ^ § 1778. Nature of Use often defines Estate. — But the nature of the use intended by the devise to be made of the property devised may have the effect to define the estate or property which the devisor gives by such devise ; as in the cases above cited, where the devise over of property was held void, be- cause the first taker, by the terms of the gift, was to have the absolute and entire disposal of it.^ § 1779. Devise of Personalty for Life, -with Remainder. — According to what is now a well-settled doctrine, a devise of a personal thing, like money, may be made to one for life, with a remainder over which will be good as an executory devise.^ Thus, a limitation upon a devise to a daughter of .£500, so that, if she died under thirty years of age unmar- ried, the same should be divided between three others, was held a good limitation to the three.* So where a testator gave personal goods and chattels to be divided among his six children, and, if any of his sons died without lawful issue, his or their parts to be divided among the survivors, unless he or they so dying should leave a wife behind, in which case she was to have a certain part, and only the remainder was to be divided, it was held that the limitations over were good as executory devises.^ § 1780. Devise of Personalty for Subsistence of Devisee. — So, though the first taker under a devise be authorized to use and consume the property devised, and, to that extent, may be said 500; Manning's case, 8 Rep. 95; 2 Prest. Abst. 4; 2 Bl. Com. 174; Duke of Norfolk's case, 3 Gas. in Chanc. 33 ; Smith v. Bell, 6 Pet. 68. 1 Lewis, Perpet. 85, 87; Gillespie v. Miller, 5 Johns. Ch. 21 ; Merrill v. Emeiy, 10 Pick. 507, 511 ; 1 Jarm. Wills, 994, n. ; 4 Kent, Com. 269; Lampet's case, 10 Eep. 46 ; Upwell v. Halsey, 1 P. Wms. 651 ; Fearne, Gont. Rem. 407. 2 Atty.-Gen. V. Hall, Fitzg. 314; Bull v. Kingston, 1 Meriv. 314. 8 Upwell V. Halsey, 1 P. Wms. 651 ; Merrill v. Emery, 10 Pick. 507, 511 ; Gillespie v. Miller, 5 Johns. Ch. 21 ; 1 Jarm. Wills, Perk. ed. 665, u. ; Mauldiug V. Scott, 13 Ark. 88 ; Smith v. Bell, 6 Pet. 68. * 2 Freem. Ch. 137. 6 Moffat V. Strong, 10 Johns. 12 ; Keene's App., 64 Penn. 273. EXECUTORY DEVISES OF CHATTEL INTERESTS. 673 to have the disposal of it, 3'et, if it be given for the purpose of the subsistence, for instance, of the devisee, as where provision is thereby made for the donor's wife, the right to make use of the property for that purpose is in the nature of a power, rather than an ownership, and a devise over of what the first devisee shall leave will be good as an executory devise. ^ § 1781. Devise over after Absolute Devise is void. — If the gift to the first taker be absolute in its terms, any devise over will be void for repugnancy. ^ And the same rule will be applied where the use only of the property is given, when, from the nature of the property, its use is its consumption. In this case it is construed to be an absolute gift.^ But, in all these cases, the test is the intention of the testator expressed in his will. It is by a reference to that that the character of the gift is determined.* § 1782. Construction of "Failure of Issue" in Case of Devise of Chattels. — Most of the rules which apply to the first and second classes of executory devises apply also to the third. There is, however, a much stronger disposition to construe a failure of issue on which a limitation is made to depend, a definite failure having reference to the time of the death of the ancestor of such issue, in the case of devises of chattels and chattel interests, than of freeholds. And one reason for this has already been explained. As there can be no estate- tail of such chattel interests, and, consequently, no limitation over upon the failure of a line, whereby the intent of the tes- tator can be carried out by construing the executory limita- tion as a remainder, if the limitation cannot be held to be on a definite failure of issue, it leaves the subject of the devise the absolute property of the first taker. ^ § 1783. Executory Devise to Unknown Person. — It is no 1 Upwell V. Halsey, 1 P. Wms. 652 ; Siirman v. Surman. 5 Madd. 123. See Rubey v. Barnett, 12 Mo. 1 ; Smith v. Bell, 6 Pet. 68. 2 Merrill v. Emery, 10 Pick. 507, 512. 8 Gillespie v. Miller, 5 Johns. Ch. 21 ; Randall v. Russell, 3 Meriv. 194 ; 1 Jarm. Wills, 793, n. * Smith V. Bell, 6 Pet. 69, where the subject is fully treated. 6 Burt. Real Prop. § 956 ; Watk. Conv. 200, and Coventry's note ; Hiill v. Priest, 6 Gray, 22 ; Kirkpatrick i". Kilpatrick, 13 Ves. 484 ; Bronncker v. Ba,£;ot, 1 Meriv. 271 ; Fearne, Cont. Rem. 463, and Butler's note ; Lewis, Perpet. 321 ; 6 Cruise, Dig. 396 ; Powell v. Brandon, 24 Mi.ss. 343. VOL. II. — 43 674 EXECUTORY DEVISES OF CHATTEL INTERESTS. more necessary that the person to whom a limitation of chattel interests in land or of chattels by way of executory devise is made should be known and ascertained, or in esse, in order that the devise should be valid, than in case of a sim- ilar limitation of a freehold.^ § 1784. Holder of Term canuot affect Executory Devisee's Interest. — Though the holder of a term for years is theoreti- cally the owner of it, where it is devised to him with a con- tingent limitation over to another, he can do nothing to defeat or injuriously affect the interest or estate of the executory devisee. Even if the holder of such a term were to acquire the inheritance of the estate by descent or otherwise, the term would not merge in the inheritance so as to affect the interest of an executory devisee of the term. And the same rule applies where the executory estate is a springing use created by deed instead of by will.^ In the latter case, moreover, it was held, that the executory devisee could not grant; over his interest at law, unless by way of estoppel, so long as the prior estate continued.^ 1 Amner v. Loddington, 1 Rolle, Abr. 612 ; 6 Cruise, Dig. 394. 2 3 Prest. Conv. 463, 499; Lee v. Lee, F. Moore, 268 ; Fearne, Cont. Rem. 421 ; Hammington v. Eudyard, cited 10 Kep. 52 a. 3 Lampet's case, 10 Kep. 52 ; Fearne, Cont. Rem. 548, 551. But see aide, § 1761. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 675 CHAPTER LXXXIY. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. § 1785. Accumulations — -Thellusson v. Woodford. 1786. Law favors free alienation. 1787. Origin of the rule against perpetuities. 1788. Scope of the rule. 1789. Charities are an exception. 1790. Estates must vest within prescribed limits. 1791. All executory interests within the rule. 1792. When period of restriction begins to run. 1793. Of limitation determined by " failure of issue." 1794. " Failure of issue " and the like implies indetinite failure. 1795. Modification of the foregoing rule of construction. 1796. Distinctioii between failure of issue in first taker and in stranger. 1797. Particular cases — Definite failure. 1798. Devise over may furnish a clue. 1799. Alternative or substitutionary devises. 1800. Limitation over upon failure of issue of first taker. 1801. Limitation over after failure of stranger's issue. 1802. When such limitations create estates-tail, when executory devises. 1803. What limitations over after failure, etc., are good. 1804. Limitations of chattel interests. 1805. Different construction in case of springing and shifting uses. 1806. Deeds more strictly construed than wills. 1807. Illustrations. 1808. An apparent exception. 1809. liimitation to the issue of an unborn person. 1810. Devise to a class. 1811. Shifting uses limited after estates-tail. 1812. Rule not apjilicable to remainders. 1813. Use taking effect as remainder, always good. 1814. Contingent remainders — Conflict of authority. 1815. Powers affected by perpetuities. 1816. Distinction between powers by will and those by deed. 1817. Instrument creating the power furnishes the test, 1818. How a power must be limited. 1819. Of powers which are partially good. 1820. Result where power void for remoteness. 1821. Illustration. Note. Statutes against perpetuities and accumulations. § 1785. Accumulations — Thellusson r. Woodford. — Under the head of executory devises was included the capacity of a 676 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. man at common law to lock up the income of his estate, whether real or personal, by means of a settlement upon trustees, by which the same was rendered inconvertible to the use of any one until the object of his bounty was born or attained a certain ag3. And provided this period did not exceed any number of lives in being, and twenty-one years and a fraction after the death of the persons by whose lives it was measured, it was a legal settlement, and would be sus- tained by law. This was illustrated to a remarkable degree by the history of the folly of one Thellusson, whose will gave rise to divers questions of law, which are reported in the noted case of Thellusson v. Woodford.^ By this will, dated in 1796, he devised his real estate, the income of which was ■£4,000 per annum, and his personal estate, estimated at half a million pounds sterling, to trustees to accumulate for nine lives, till, by the ordinary chances of life, the aggregate would amount at interest to over £19,000,000, and, in one contin- gency provided for, to a much larger sum, then to fall to two or three persons. The will had been so drawn as to keep within the rules against perpetuity, and the courts were obliged to allow its validity and that of the provisions it con- tained. But so unreasonable did the rule appear to Par- liament that an act was passed, 39 & 40 Geo. III. c. 98, whereby such accumulations were prohibited for a longer period than the life of the grantor or settler, or twenty-one years from the death of every such grantor or settler, devisor or testator, or during the minorities of the persons who would be qualified to take the accumulated fund.^ Under this act, it was held that a direction in one's will to trustees to apply the income of personal estate for the support of A, and to invest any surplus which, with the testator's personal estate, was given over after A's death, so far as investing the surplus went, was void, and the accumulations belonged to testator's next of kin.^ § 1786. Law favors Free Alienation. — Under the rule of common law, or even that of the statute 8 & 9 Vict. c. 106, 1 Thellusson v. Woodford, 1 Bos. & P. N. R. 396 ; s. c. 4 Ves. 227; 11 Ves. 112 ; Fearne, Cont. Rem. 436. 2 Wms. Real Prop. 263 ; Lewis, Perpct. c. 28, p. 592. 8 Matthews v. Keble, L. R. 4 £ropprty, e. g. leasehold interests, than in cases of real property. Gable v. EUender, 53 Md. 311 ; Hardy v. Wilcox, 58 Md. 180 ; Synder's App., 95 Penn. St. 177. 2 Tud. Lead. Cas. 361. 8 Doe V. Cadogan v. Ewart, 7 Ad. & E. 636 ; Tud, Lead. Cas. 361 ; Bramlet v. Bates, 1 Sneed, 554. 682 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. twenty-one years, seems to adopt it as a rule, that if an estate be limited by way of springing or shifting use, or executory devise, upon a "dying without issue," a "failure of issue," or the like, if there is no attendant expression indicating some definite time at which such failure is to occur, the estate will be deemed to be limited upon what is called an indefinite failure of issue, and too remote to be valid within the rule against perpetuities.^ An exception to this rule occurs when a testator, having no issue, devises property in default or failure of issue of himself, it being held, in such a case, that the testator shows an evident intention to make the devise contingent on the event of his leaving no issue surviving him, and that he does not refer to an extinction of issue at any time. 2 § 1795. Modification of the Foregoing Rule of Construction. — The violence which was found so often to be done to the in- tention of testators and to common sense, in time led to a 1 Forth V. Cliapman, 1 P. Wins. 663 ; Tud. Lead. Cas. 361, 556, 558 ; Wms. Real Prop. 177 ; Wilson, Uses, 66, 77 ; 2 Jarm. Wills, Bigelow's ed. *497 ; Smith, Exec. Interests, § 538 ; Hall v. Priest, 6 Gray, 18, 20 ; Terry v. Briggs, 12 Met. 22; Allen v. Ashley School Fund, 102 Mass. 262, 264; Anderson v. Eden, 16 Johns. 382; Arnold w. Brown, 7 R. I. 188; Hall v. Chaffee, 14 N. H. 220, 226- 239, and cases there cited ; Dallam v. Dallam, 7 Harr. & J. 220 ; Hollett v. Pope, 3 Harriug. 542; Newton v. Griffith, 1 H. & G. Ill; Tongue v. Nutwell, 13 Md. 415; Josetti v. McGregor, 49 Md. 210; Huxford v. Milligan, 50 Md. 542; Gast V. Baer, 62 Penn. St. 35 ; Ingersoll's App., 86 Penn. St, 240 ; Hope v. Rusha, 88 Penn. St. 127 ; Daley v. Koons, 90 Penn. St. 247 ; Lawrence v. Lawrence, 105 Penn. St. 339; Mangum v. Piester, 16 S. C. 303; Chetwood v. Winston, 40 N. J. L. 337 ; Davies v. Steele, 38 N. J. Eq. 168 ; Randolph v. Wendell, 4 Sneed, 646. It is said by the courts in Ohio, that this rule has never been adopted in that State, and it seems that in that State such an expression always imports, of itself, a detinite failure of issue. Niles v. Gray, 12 Ohio St. 320 ; Piatt v. Sintou, 37 Ohio St. 353. "Dying without children " means children living at the death of the devisee named. Morgan v. Morgan, 5 Day, 517 ; Wead v. Gray, 8 Mo. App. 515. See Black v. McAuley, 5 Jones (N. C), 375; Gray v. Bridgeforth, 33 Miss. 312 ; Moffat v. Strong, 10 Johns. 12 ; Kay v. Scates, 37 Penn. St. 39 ; Jackson v. Dashiel, 3 Md. Ch. 257 ; Bell v. Scammon, 15 N. H. 381 ; Curry v. Sims, 11 Rich. 490. And if the devise is to A for life, and after his death to his children in fee, and if he dies without issue, to B in fee, it has been held that the word " issue " is limited by the preceding devise to children, and that a definite failure of issue is meant. Docking v. Dunham, Dougl. 251 ; Daley v. Koons, 90 Penn. St. 246 ; Smith, Exec. Interests, § 541. Cf. Bowen v. Lewis, L. K. 9 App, Cas. 900. 2 2 Jarm. Wills, Bigelow's ed. *500 ; French v. Caddell, 3 Br. P, C. Toml. ed. 257. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 683 change in respect to this rule, by legislation both in England and in several of the United States, which will be noticed at the close of this chapter, and uniformly led the courts to seize upon any expression in the terms of the limitation which could be reasonably construed as referring such failure of issue to the death of the person of whose issue the failure is predicated. 1 § 1796. Distiuction between Failure of Issue in First Taker and in Stranger. — There is an o!)vious difference in the con- struction to be applied, whether the limitation over be upon the failure of issue on the part of the first taker, or that of a third person, as between a devise or conveyance to A and his heirs, and, upon failure of issue of A, then over to C, and a devise or conveyance to A and his heirs, and upon the failure of the issue of B, a stranger, then over to C. In the first, it would be held to be constructively an estate-tail in A, and the limitation to C would be a remainder which is not affected by the rule against perpetuities. ^ In the last, the devise over cannot be a remainder, as it destroys A's estate if it takes effect; and not being to take effect until after an indefinite failure of issue, namely of B, it is too I'emote, and therefore void.^ A devise to A for life, and, after his death, to his male heirs, and if he die without male heirs, then to his female heirs, was held, as to the female heirs, to be too remote a limitation, and therefore void.* So in a devise to several, and, if either died without lawful issue, his part to descend to the others with a devise over, each devisee took an absolute estate, the devises over being too remote.^ It is important, in this connection, to note that in many of the States such a devise as to A and his heirs, and upon the failure of issue of A, then over to C, creating at common law an estate-tail in A, would under the statutes of the States be 1 4 Kent, Com. 278 ; Doe v. Ewart, 7 Ad. & E. 636, wliere most of the previ- ous cases are cited and commented on; Hall y. Chadee. 14 N. H. 221-224, also reviewing the decided cases ; Dallam v. Dallam, 7 Harr. & J. 237 ; Moore i;. Howe, 4 Mon. 199; Hollett v. Pojie, 3 Hairing. .546; 2 Am. Law Mag. 88; Bell v. Scammon, 15 N. H. 391. 2 Whitcomb v. Taylor, 122 Mass. 249. 3 Tiid. Lead. Cas. 361 ; Terry v. Briggs, 12 Met. 22. 4 Conklin v. Conklin, 3 Sandf. Ch. 64. 6 Shephard i;. Shephard, 2 Rich. E(i. 142. 684 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. construed as creating either a fee-simple in A, or a life-estate in A and a fee-simple in bis heirs. ^ In such States, the limi- tation over to C would be a fee after a fee, and would be a conditional limitation by way of executory devise, as it takes effect not after but in derogation of the previous estate; and if there are no circumstances or phrases in the will indicating that a definite failure of issue was meant by the testator, the devise is bad, as violating the rule against perpetuities, as it may not take effect until after a life or lives in being and twenty-one years. ^ And as there can be no fee-tail in personal property, such a limitation of chattels real is always bad after an indefinite failure of issue. ^ In view of this fact, and in order to give effect to the intention of the testator so far as is possible, ut res magis valeat quam inreat^ the courts have seized upon slight expressions of an intention on the part of the testator to limit the failure of issue to a definite period, namely, the life of the first taker under the devise, and the legislatures of several States have enacted that such expres- sions as "dying without issue," and the like, shall be con- strued to mean a definite failure of issue, unless the contrary appears to have been the intention of the testator.^ Whenever the phrase "dying without issue," or the like, is construed to mean a definite failure of issue, if the devise over is a conditional limitation, it is not void for remoteness, since it must vest within the time limited by the rule against perpetuities.^ §1797. Particular Cases — Definite Failure. — In the often- cited case of Pells v. Brown, the devise was to Thomas and his heirs, and if he died without issue, living William, then 1 See ante, § 219, note ; Smith v. Brisson, 90 N. C. 284. 2 Newton v. Griffith, 1 H. & G. Ill ; Posey v. Budd, 21 Md. 477 ; s. c. 22 Md. 48 ; Josetti v. McGregor, 49 Md. 202 ; Snyder's App., 95 Penn, St. 177 ; State u. Tolson, 73 Mo. 326. 3 Davies v. Steele, 38 N. J. Eq. 170 ; Snyder's App., 9.^ Penn. St. 176. 4 See post, note at the end of this chapter. Busby i'. Rhodes, 58 Miss. 240. In New York, by statute, such a limitation over after an indefinite failure of issue is preserved as a contingent limitation, to vest at the death of the first taker without issue. Nellis v. Nellis, 99 N. Y. 511. 5 Wead V. Gray, 8 Mo. App. 520 ; Stones v. Maney, 3 Tenn. Ch. 731 ; Mott r. N. Y., Ont., & W. Ry. Co., 45 N. J. L. 226 ; Brewster v. Striker, 2 N. Y. 19 ; Morgan v. Morgan, 5 Day, 517 ; Smith v. Brisson, 90 N. C. 284. Cf. Striker v. Mott, 28 N. Y. 82. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 685 to William, and it was held to be a definite failure of issue, relating to the time of Thomas's deatli, for it was contem- plated, that, if it took place at all, it should be in the lifetime of William.^ So, where the devise was to the wife for life, and at her death to the daughter in fee, " if then living, and her issue if any, but if she should then be dead, or afterwards die leaving no issue," — it was held, that it intended issue living at her death.^ In another case, the devise was to R. and J. and their heirs; and if either of them died before the age of twenty-one, and without issue, then over. It was held, that the time of the failure was fixed and definite ; namely, their coming of age at twenty-one. And this was one of the numerous cases in the books, where, in order to carry out the intent of the testator, " or " was construed to mean " and. " ^ Where the devise was "if a son die without heirs, or before he becomes twenty-two years of age," etc., "or" was held to mean and.'^ A devise of personal property was made to the wife of the testator, with an implied limitation to her issue after her, which was equivalent to a devise in fee of real estate, as there is no such thing as an estate-tail in personal property. There was also a devise over " at her death, leav- ing no lawful issue; " and it was held to relate to the time of her death, so that the devise over was good, as an execu- tory one.^ A devise was limited to H. B. and her heirs, 1 Pells V. Brown, Cro. Jac. 590 ; Purefo^' j;. Rogers, 2 Wms. Saund. 388 c. 2 Griswold v. Greer, 18 Ga. 545. 8 Dallam v. Dallam, 7 Harr. & J. 220 ; Tud. Lead. Cas. 558 ; Eastman v. Baker,! Taunt. 174; Price u. Hunt, Pollexf. 645 ; Bell v. Scammon, 15 N. H. 381 ; 2 Jarm. Wills, Bigelow's ed. *505 ; Smith, Exec. Interests, § 550 ; Hinde V. Lyon, 3 Leon. 64. It has also been held that a definite failure of issue is meant where the dying without issue is expressed to be after a certain age as well as before, and would probably be so held in any case where the dying without issue accompanies any event personal to the devisee, as if he dies unmanned without issue, and the like. 2 Jarm. Wills, *506 ; Smith, Exec. Interests, § 551. * Doebler's App., 64 Penn. St. 14 ; Scott j;. Guernsey, 48 N. Y. 121. 8 Moore v. Howe, 4 Mon. 199. See also Purefoy v. Rogers, 2 "Wms. Saund. 388 i ; Forth v. Chapman, 1 P. "Wms. 663; Hall v. Priest, 6 Gray, 18 ; 2 Jarm. Wills, 249, n. The word " after," in such a case, does not have the force of the word "at." So where the devise was to A in fee, and if he die leaving no issue, then after his death to B, it was held that an indefinite failure of issue was meant. Walton V. Drew, Com. Rep. 373 ; Jones v. Ryan, 9 Ir. Eq. Rep. 249. But see Pinbury v. Elkin, 1 P. Wms. 563, where " after " was held, und^r the circum- stances, to import a definite failure of issue. And see also Smith, Exec. Interests, 686 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. "provided she should die without issue, born alive of her body, to heir her estate." This was held to confine the con- tingency to the having of issue, and that such issue should be in esse, so as to "heir her estate," when it was in a condition to descend to heirs; namely, at her death. ^ So a devise over after a gift to A and his heirs, if he should die leaving no issue behind him, was held to be a good executory devise, the words "behind him" having been held to refer to the first taker's death, and to restrict the leaving no issue to that period. 2 § 1798. Devise over may furnish a Clue. — The nature of the devise over in case of failure of issue is a very important element in determining whether a definite or an indefinite failure is intended.^ Thus if the devise over be of a life- estate, dependent upon a failure of issue in the first taker, the idea that the testator intended to have the life-estate wait for an indefinite failure of issue is negatived by the utter improb- ability in such a case of the life-estate ever taking effect.* This inference only holds good, however, if all the ulterior limitations are life-estates. If one is a life-estate and the § 557. If the devise is to A in fee, and if he die leaving no issue, then at his death to B, the phrase is held to mean a definite failure of issue. Ex parte Davies, 2 Sim. N. s. 114 ; Parker v. Birks, 1 K. & J. 156 ; Coltsman v. Coltsman, ]j. Pi. 3 H. L. 121. Where the provision was that " if said A should die leaving no issue, all the residue and remainder of the estate which should be left at his de- cease should go to B for life," it was held that the clause showed that the reference was to the death of the first taker, and meant a definite failure of issue. Whit- corab V. Taylor, 122 Mass. 243. Where the devise was to A in fee, and if he died leaving no issue, then and in such case to B, it was held that the words " then and in such case " did not;^refer to time, and did not make the devise over a limitation on a definite failure of issue. Josetti v. McGregor, 49 Md. 213. 1 Hall V. Chaffee, 14 N. H. 215. 2 Porter v. Bradley, 3 T. R. 143 ; Ide v. Ide, 5 Mass. 500, 502. And of course the phrase " dying without leaving issue living at the time of his death " means a definite failure of issue. Barnfield v. Wetton, 2 Bos. & P. 324. 3 Taylor v. Taylor, 63 Penn. St. 485. 4 Trafford v. Boehm, 3 Atk. 440 ; Tud. Lead. Cas. 558 ; Roe d. Sheers v. Jef- fery, 7 T. R. 589 ; Ide v. Ide, 5 Mass. 500, 502 ; Davies v. Steele, 38 N. J. Eq. 172, 173 ; Hope v. Rusha, 88 Penn. St. 130 ; Whitcomb v. Taylor, 122 Mass. 249. Cf. Simmons v. Simmons, 8 Sim. 22 ; 6 Cruise, Dig. 391 ; Fearne, Cont. Kem. 488 ; Oakes v. Chalfont, PoUexf. 38. For the law generally on this subject, see Forth v. Chapman, 1 P. Wms. 663 ; Tud. Lead. Cas. 361-366, 556-561 ; 2 Jarm. Wills, 418, c. 42, and Perkins' notes for American cases ; 4 Kent, Com. 273-279. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 687 others arc in fee, no inference in favor of a definite failure of issue can be drawn from the devise over.^ It seems that in those cases where the ulterior limitation is to B, without specifying any estate, and the devise is, by implication or by special statutory provision, held to carry a fee, this rule would not apply, and it is only when a life-estate is expressly given, that any inference in favor of a definite failure of issue can be drawn.^ Another circumstance which has been con- sidered to show an intention to provide for a limitation over after a definite failure of issue, is the fact that the devise over on failure of issue is to the survivors, at that time, of certain persons living at the testator's death, when no mention is made of their heirs, executors, etc. The theory is that such persons probably would not take if the failure is held indefi- nite; and the testator probably had this in mind, and there- fore his intention is inferred to have been to use the words "dying without issue" as a definite failure.^ Thus where land was given to A, one of several children, in words im- porting a fee, and other land given in the same way to other children, and there was a provision that if any of the children should die without issue, his share should be equally divided among the surviving heirs, it was held that the words "die without issue " were limited by the superadded words of sur- vivorship, which showed that the time at which the failure of issue was meant was the death of A.^ But if the limitation over is to the survivors, their heirs, executors, etc., this rule of inference does not hold;^ or if the words of the will show that the ulterior limitation is in fee, as when the ulterior devise is of the estate, or interest which is given to the first taker, and that estate is a fee.^ 1 Barlow v. Salter, 17 Ves. 479; Pej'ton v. Lambert, 8 Ir. Com. L. Kep. 485 ; Smith, Exec. Interests, § 559. 2 Hope V. Rusha, 88 Penn. St. 127 ; Josetti v. McGregor, 49 Md. 213 ; Chet- wood V. Winston, 40 N. J. L. 337. But see State v. Tolson, 73 Mo. 320, where the ulterior devise being to persons by name, and no mention of heirs, it was held that a definite failure of issue was meant. 8 2 Jarm. Wills, *511 ; Smith, Exec. Interests, § 554 ; Ingersoll's App., 86 Penn. St. 240. * Groves v. Cox, 40 N. J. L. 40 ; Davies v. Steele, 38 N. J. Eq. 174. 5 Smith, Exec. Interests, § 555. 6 Hope V. Rusha, 88 Penn. St. 127. 688 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. § 1799. Alternative or Substitutionary Devises. — When thc devise over is expressed to be upon the contingency of the death of thc first taker, without any words as to issue, as a devise to A, and if he die, to 13, it is held that a death during the lifetime of the testator is meant, since only by this inter- pretation can any contingency be annexed to the fact of death ;i and this construction has been applied in some cases to devises over in default of issue. The cases where this construction has been used are cases of alternative or substi- tutionary devises, and where the testator evidently intended the alternative devise as a precaution against intestacy. Thus where an estate was given to seven children in fee, equally, and there was a proviso that if any of the children died with- out issue, their shares should return to the other children, and that if any of the children should die leaving issue, the issue should take the parents' share, it was held that the proviso was intended to act as a substitutionary clause in case of a lapse, and that as both the events of dying with and dying without issue were provided for, there was no real con- tingency, and the case fell under the rule in the cases where death alone is spoken of as a contingency, and that the proviso meant dying without issue in the testator's life.^ In this case, the general frame of the will showed that the testator had in mind a series of provisions which were to operate at his death, and that he intended to cover every state of facts that might exist at that time, and that he did not have in mind an ulterior disposition of the estate. The word "re- turn" is also important, as showing that, in case of a child dying without issue, the devise to the other children was to take effect as a substitute for the devise to him, and not as a limitation over after his death without issue. So in a case in New Jersey, where the residuary devise was to all the chil- dren, to be equally divided between them, and in case of the death of one or more of the children without leaving lawful issue, his or their share or shares to go to the survivors or survivor of the children, but if any of the children should die leaving lawful issue living, such issue to take the parents' ^ Grossman v. Field, 119 Mass. 170. a Gee v. Manchester, 17 Q. B. 737, 744. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 689 share, it was held that the dying without issue meant in the life of the testator.^ So, where the devise over in case of death without issue was that the property should be sold and divided amongst the remaining children, share and share alike, the court held that the limitation was intended to be substitutional only, to take effect upon the death of the dev- isee without issue in the life of the testator. The subject of the distinction between definite and indefinite failure of issue was expressly put aside without discussion in this case.^ In Leonard v. Kingsland (New York),^ where the devise in- cluded both real and personal property, although, in the case in question personal property only seems to have been in dis- pute, the court, putting their decision on the ground that the phrase "dying without issue," in the residuary devise to the testator's son, meant to guard against the consequences of a lapse, held, it was limited to dying in the testator's life.* But the rule was not adopted in Nellis v. Nellis,^ where, among other devises, was a devise of land to two grandsons jointly and equally, and subject to certain legacies which were made a charge on the land, and with a proviso that, in case the grandsons should die without lawful issue, their share should go to other grandchildren, and if either grandson should die without issue, the survivor should take the share of the one dying. The court held, that, under the provisions of the Revised Statutes of New York, the grandsons took a contingent estate in fee, which was liable to be reduced to a life-estate whenever the contingency named in the will should happen, and thereupon the devise to the other grandchildren took effect as a conditional limitation in fee, and that the proviso relating to dying without issue referred to a dying after the testator's death. The court in this case reviews the New York decisions on this subject, and decides the case on the authority of Buel v. Southwick.^ When the phrase " dying 1 Barrel! v. Barrell, 38 N. J. Eq. 60. 2 Hancock's Est., 13 Phila. 283. 8 Leonard v. Kingsland, 19 N. Y. Weekly Dig. 473. * So of personal property. Mickley's Est., 13 Phila. 281 ; s. c. 92 Penn. St. 514. 6 Nellis V. Nellis, 99 N. Y. 505. 6 70 X. Y. 581. VOL. II. — 44 690 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. without issue " is construed to mean so dying in the life of the testator, the devisee, if he survives the testator, takes an absolute estate, not subject to divesting on the failure of his issue, and of course the limitation over is void.^ § 1800. Limitation over upon Failure of Issue of First Taker. — As has been already stated, where there is a limitation to one generally, or to him and his heirs, with a limitation over upon an indefinite failure of issue of such first-named devisee, which, if construed to be an executory devise, would be void, by reason of being too remote, the courts sustain it as a remainder, and give effect to it accordingly, on the ground that the testator's making the continuance of the estate in the first taker to depend upon his having issue showed that it was intended he should take an estate-tail, which, as before said, will sustain a remainder, however remote may be the time when it shall vest in possession. This matter is fully illus- trated by Shaw, C. J., in Nightingale v. Burrell, before cited. ^ In Doe V. Ellis, the devise was to J. and his heirs and assigns forever; but if he should die without issue, then to go to the child of which the testator's wife was enceinte. It was held that the subsequent clause explained and limited the term "heirs " to mean issue, and the estate of J. to be an estate-tail, and the limitation over was held good.^ § 1801. Limitation over after Failure of Stranger's Issue. — The distinction seems to depend upon the question, whether the failure is of such issue as could have taken the estate in succession, or is of the issue of one who is a stranger to the estate, or one whose issue could not take under the limitation to issue, as distinguished from general heirs. Thus, if the 1 Leonard v. Kingsland, 19 N. Y. Weekly Dig. 473 ; Blum v. Evans, 10 S. C. 80. 2 Nightingale v. Burrell, 15 Pick. 112, 113; Tad. Lead. Cas. 361; 6 Cruise, Dig. 379 ; Lion v. Burtiss, 20 Johns. 489 ; Bells v. Gillespie, 5 Rand. 273 ; Terry V. Briggs, 12 Met. 22 ; Hall v. Priest, 6 Gray, 18 ; Doe d. Ellis v. Ellis, 9 East, 382 ; Bamfield v. Popham, 1 P. Wins. 57, note. It will be .seen, post, § 1806, that a different rale prevails in construing a limitation to one and his heirs, and upon his decease without issue, then over, in case of limitations by deed to uses, and those hy will. If by deed, it is not held to be an estate-tail. Wilson, Uses, 115 ; Abraham v. Twigg, Cro. Eliz. 478 ; Moore v. Rake, 26 N. J. L. 574 ; Sears v. Russell, 8 Gray, 92, 93. 8 Doe d. Ellis v. Ellis, 9 East, 383. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 691 first taker take a fee-simple, and the devise over, upon the contingency of his dying without heirs, is to a stranger, such limitation will be an executory devise, and not a remainder.^ The court, by way of illustrating a proposition substantially like the above, in one of 'the cases cited, say: "If the devisor had by his will said, 'My son shall have my land to him and his heirs in fee-simple, so long as any heirs of the body of A and B shall be living, and, for want of such heirs, I devise my land to W. R. and his heirs,' W. R. ' shall take as by a future and executory devise.' " § 1802. When such Limitations create Estates-tail, -when Ex- ecutory Devises. — So if the devise over be to A and his heirs, if J. S. die without issue, and J. S. is a stranger, it will be an executory devise to A, since it is the limitation of a free- hold in futuro, and too remote to be good.^ But where the devise over upon the failure of heirs of the first taker is to one who would be an heir of the first devisee, it is construed to create an estate-tail in the first devisee, and that the word "heirs" must intend heirs of his body, since it would be absurd to devise over to the heirs of one who has, by the same devise, a fee-simple ; whereas, if the devise over had been to a stranger, the estate of the first taker would have been a fee- simple.^ § 1803. What Limitations over after Failure, etc., are good. — But though the cases thus far supposed, where an executory devise over upon failure of issue has been held good, have been those where reference was had in the limitation to the time of the death of the ancestor, yet it would be sufficient that the time must come, if at all, within the limit of twenty-one years after the death of such ancestor. An executory devise limited after the failure of issue of the ancestor named would be good 1 Grumble u. Jones, 11 Mod. 207; s. c. 2 Eq. Cns. Alir. 300 ; s. c. Willes, 167, note ; Gardner v. Sheldon, Vaugh. 270 ; Tad. Lead. Cas. 363 ; Sears v. Ru.ssell, 8 Gra}', 93. ■■^ Fearne, Cent. Rem. 524, Butler's note ; 2 Fearne, Cont. Rem. Smith's ed. § 714 ; Tud. Lead. Cas. 361 ; Badger v. Lloyd, 1 Ld. Raym. 526 ; 8. c. 1 Salk. 233 ; s. c. by name of Badge v. Floyd, Coniyns, 65. ^ Preston v. Funnell, Willes, 165; Grumble v. Jones, id. 167, note ; Atty.-Gen. V. Gill, 2 P. Wms. 369 ; Webb v. Hearing, Cro. Jac. 415; Tyte v. Willis, Cas. temp. Talb. 1 ; Sears v. Russell, 8 Gray, 93. 692 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. as such, if, connected with it, is an express provision that this is to take place, if at all, within a period of twenty-one years after the death of such ancestor. And the same is true of shifting uses, ^ § 1804. Limitations of Chattel Interests, — What has been said in respect to estates of inheritance may be applied to terms for years limited by way of executory devise after the dying of another without issue. If the executory limitation of the term be for the life of the devisee in esse, to take place after a dying without issue, it will bo good, for, being for the term of life of a person in being, the period of the failure of issue could not extend beyond the limits of perpetuity, since it must imply that the failure was to take place, if at all, within the limit of a life in being. ^ § 1805. Different Construction in Case of Springing and Shift- ing Uses. — It may, however, be regarded as a rule of construc- tion, that courts exercise a greater degree of liberality in construing a dying without issue, etc., a definite failure of issue, where the limitation is by springing or shifting use, than in case of a devise, from the disinclination there is to so construe a will as to disinherit the heir at law.^ § 1806. Deeds more strictly construed than "Wills. — There is, however, a greater strictness in respect to the formal terms of limitation required to define the estate to be created where it is done by deed raising and declaring uses, than when done by will, words tantamount to those of inheritance being neces- sary in a deed in order to create a fee-simple or fee-tail ; and to create a fee-tail, there must also be words in some way limiting the heirs to those of the body. Thus, where an estate was conveyed to the use of A and his heirs, with a limitation over in case he died without leaving issue, this would not reduce the term "heirs "to heirs of the body, and turn the estate into a fee-tail, as would have been the case had the limitation been made by will; but the first limitation would 1 Lewis, Perpet. 188 ; Fearne, Oont. Rem. 470 ; Sheffield v. Orrery, 3 Atk. 282 ; Heywood v. Maunder, 2 R. Freem. 98 ; Davies v. Speed, 2 Salk. 675 ; "Wilson, Uses, 67, 10.3, 105. 2 Oakes v. Chalfont, Pollexf. 38; Fearne, Cont. Rem. 488 ; 6 Cruise, Dip;. 391. 8 Wilson, Uses, 111 ; Fortli v. Chapman, 1 P. Wms. 663 ; Hallr. Priest, 6 Gray, 18, 22. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 693 be a fee, and the second, instead of a remainder, a sliifting use.i § 1807. Illustrations. — A conveyance to the use of A for life, remainder to trustees to apply the rents, etc., until the son of D, who has no son, shall have attained the age of twenty-five years, and to convey the same to hira on attaining that age. It was held by Mr. Fearne, that the limitation was too remote to be valid.^ By a deed of covenant to stand seised, one covenanted, that if he should die without issue of his body, then he did give, grant, release, and confirm the lands, etc., to E, and her heirs. It was held, that, the cove- nantor having died without issue, no estate had passed by the deed to E, since it was a future use to her, limited upon the indefinite failure of the covenantor's issue. ^ A husband and wife levied a fine of the wife's land to the use of the heirs of the body of the husband on the wife begotten, remainder to the husband's heirs. They had issue. Then the wife died, then the issue died, and then the husband. His heirs claimed the estate. But it was holden, that, as a remainder to them, the limitation was void because it had no particular freehold estate to support it, as the husband had no estate in the premises. And as a springing use, it was too remote, since, in effect, it was limited after a general failure of heirs or issue of the husband and wife.^ §1808. An Apparent Exception. — What may at first sight seem to be in opposition to this idea so often repeated, that an executory devise is too remote and void if made upon the indefinite failure of issue, is the case of a devise over upon the failure of issue of the testator's own body, which has been held to be good. But this is upon the ground that such a devise is only conditional, and must take effect, if at all, at the testator's death, and is consequently not against the rule of perpetuities.^ § 1809. Limitation to the Issue of an Unborn Person. — An inevitable result of the rule against perpetuities is that a 1 Wilson, Uses, 109, 115; Abraham v. Twigg, Cro. Eliz. 478. 2 Fearne, Postli. Works, 391 ; Wilson, Use.j, 146. ' Wilson, Uses, 78 ; Coltman v. Scnhouse, PoUexf. 536. * Davies v. Speed, 2 Salk. 675. 6 4 Cruise, Dig. 388 ; SanforJ v. Irby, 3 Barn, k Aid. 654. G94 ACCUMULATIONS AND THE RULE AGALXST PERPETUITIES. limitation to the issue of an unborn person would be void as too remote, if he is to take as purchaser. ^ § 1810. Devise to a Class. — If the devise be to a class, some of whom are, and some are not, within the prescribed limits as to vesting in possession, it will be void as to the entire class. Thus, where a devise is made to children, to vest in them when twenty-five years of age, not seriatim, but together, some of whom are born and living at the testator's death, and some may be born after, so that more than twenty -one years might elapse after the deatli of the persons living before some of the children would arrive at twenty-five, the devise would be void/-^ In the case of Evers v. Challis, Wightman, J., gives an explanation of the grounds upon whicli the case of Leake V. Robinson, cited below, was decided ; that if the devise, in such a case, were held divisible, and " if divided after the testator's death, it might be, that the persons of the class, who were by law incapable of taking in remainder, were the very persons in favor of whom he included the whole class, and therefore, if the devise were split, the persons who would take might not be those whom it was the intention of the tes- tator to benefit." And yet, if the class can be separated within the terms of the will, the portion of them who can take lawfully will do so, while the other will not.^ Accordingly, it w^as held, that where this limitation was to a class, and was void as to some by being too remote, it might be otherwise as to others, as where the devise was to the sons of A, and, on the testator's death, each son to take for life, with remainder to his children. If A has sons living, the limitation to them would be good, but would be void for remoteness as to tlie sons of the sons of A born after the testator's death.-* The following case will also serve to explain the foregoing propo- sition in relation to an executory devise to a class : S. B. de- vised his real and personal estate in trust,^ among other things, to sell the same and pay the income to his daughter W., and, from and after her decease, in trust for the testator's two 1 Hay V. Coventry, 3 T. R. 86 ; and that such a limitation would be void as a remainder, see ante, § 1584. 2 Leake v. Robinson, 2 Meiiv. 363 ; Philadelphia v. Girard, 45 Penn. St. 27. 8 Evers v. Challis, 7 H. L. Cas. 545, 547. See Jarm. Wills, 246. * Lowiy V. Muldrow, 8 Rich. Eq. 241. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 695 grandsons, H. W, and C. W., and all and every other the child or children of his daughter thereafter to be born, if any, or tiie issue of such grandsons respectively, or other child or children, in shares to be appointed by his daughter, and, in default of such appointment, in trust for all his grandsons and other the child or children of his daughter thereafter to be born, if any, and the issue of such grandsons or other child or children, who, being a son or sons, shall live to attain the age of twenty-one years, etc., equally to be divided between or amongst them, such issue to take a parent's share. The daughter released her right of appointment ; and a question then arose, whether the otiier limitation was too remote or not. The Master of the Rolls construed the will to apply both to the living grandsons and the other children of the testator's daughter, as well as to the issue of the grandchildren ; that the words were not confined to the issue of the grandchildren, but applied to the whole class, and that the class consisted of three sets of persons ; namely, the existing grandsons who are named, grandchildren thereafter to be born, and the issue of these two previous descriptions of grandchildren who may have died before the period of distribution, all of whom must attain twenty-one years before the division of the fund took place. The gift by the will, therefore, to the grandsons named, in- cluded only a portion of a class which was not to be ascer- tained until a period, which, by possibility, might exceed the life of W., the daughter, and twenty-one years after her de- cease, and was accordingly held to be too remote. Thus, it is said, before the death of W., the grandchildren alive when the testator died might all have died leaving children, and some of her children might also have been born after the death of the testator, and died before her, and left children under twenty- one, and all these might have been infants at the death of the daughter. Of these, some infant child of W., alive at her decease, might have died in infancy, leaving children who would not have attained twenty-one, and, therefore, would not have attained vested interests until more than twenty-one years after the death of W., the daughter. Nor did it make any difference in the construction to be given to the will, that such did not in the event prove to be the case, since reference 696 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. can only be had to the time of the will taking effect ; for it must be good or bad in its inception, if at all.i But in James V. Wynford, the Vice-Chancellor was inclined to hold that a gift to an individual, named and known to the testator, would not wholly fail, because there were words superadded by the testator, including a class to take with him, as to which class the gift must wholly fail, because, as to some, it might be too remote.^ And in Cattlin v. Brown, the Vice-Chancellor lays down a rule upon this point, " that where a gift or devise is of a given sum of money or property to each member of a class, and the gift to each is wholly independent of the same or similar gift to each and every other member of the class, and cannot be augmented or diminished whatever be the number of the other members, then the gift may be good as to those within the limits allowed by law."^ § 1811. Shifting Uses limited after Estates-tail are not within the rule of law against perpetuities, as it is called, which was made to prevent the locking up of estates for an undue period of time, because the tenant in tail, under such cir- cumstances, has full power of defeating such use, and of converting it into an alienable estate, instead of its being held as not susceptible of alienation.* § 1812. Nor does the Rule apply to Remainders, whether con- tingent or vested ; and one reason is, that, if the remainder be limited upon an estate-tail, the tenant in tail can, at com- mon law, bar the remainder by barring the entail.^ The lan- guage of Lord St. Leonards on this subject is : " Where a limitation is to take effect as a remainder, remoteness is out of the question ; for the given limitation is either a vested re- mainder, and then it matters not whether it ever vests in pos- session, because the previous estate may subsist for centuries or for all time ; or it is a contingent remainder, and then by a rule of law, unless the event upon which the contingency depends happen so that the remainder may vest eo instanti, 1 Webster v. Boddington, 26 Beav. 128 ; Greenwood v. Roberts, 15 Beav. 92. 2 James v. Wynford, 1 Smale & G. 40, 58. 8 Cattlin V. Brown, 11 Hare, 372, 377 ; Griffith v. Pownall, 13 Sim. 393. * Gilb. Uses, Sngd. ed. 157, n. ; Wilson, Uses, 74; Goodwin v, Clark, 1 Lev. 35. 6 Watk. Conv. 193, 194, Coventry's notes ; Nicolls v. Sheffield, 2 Bro. Ch. C. 215. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 697 the preceding limitation determines, it can never take effect at all." ^ It ought to be stated, however, that the court in the case cited below are inclined to question the correctness of the rule as here stated, on the ground that under it there might be an unlimited succession of contingent particular estates, which would take effect so long as the persons who were to take came into being during the continuance of a prior estate, so as to take it at the expiration of such prior estate. And that the law will not allow this, they cite a case from East.2 § 1813. Use taking Effect as Remainder, always good. — So if a future limitation by the way of use can take effect as a remainder, no remoteness of time or event, however great, can affect the validity of such a limitation.^ § 1814. Contingent Remainders — Conflict of Authority. — Lord St. Leonards's statement has been approved and supported by Mr. Williams in his work on Real Property,^ also by the English Commissioners on Real Property ; ^ but is contro- verted by Mr. Gray in his work on Perpetuities,^ and by Mr. Lewis.'^ One reason why contingent remainders should not be subject to the rule against perpetuities was that they might at any time be destroyed by the tenant of the particular estate, either by fine or recovery in case of an estate in tail, or by feoffment or fine in case of an estate for life, and therefore the power of alienation was not suspended. This reason seems no longer applicable to the case, since by statute in most of the United States contingent remainders are no longer destruc- tible.^ In New York there is a statute which provides that only two life estates can be limited before a remainder. This statute applies to both vested and contingent interests; but with this difference: if the remainder limited after more than two life-estates is vested, it will come into possession after the 1 Cole V. Sewell, 4 Dm. & Warr. 28. 2 Wood I'. Griffin, 46 N. H. 235; Seaward v. Willock, 5 East, 206. 8 Cole V. Sewell, 4 Dm. & Warr. 28. * 13th ed. 274-277. 6 Eeport, vol. 3, pp. 29-31. 6 §§ 284-298. T Perpet. c. 16 ; Suppl. 97-153. See also 1 Jarm. Wills (4th ed.), 255-258, 260-263; Tud. Lead. Cas. (3d ed.) 470-475. 8 A7itc, note at the end of chapter Ixix.; Gray, Perpet. § 286. G98 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. first two life-estates, the statutes rendering the others void ; while if the remainder is contingent, it will not take effect at all, unless it is ready to do so at the termination of the second life-estate.^ In Massachusetts, the courts have applied the rule against perpetuities to contingent remainders without question. 2 And in a case decided in Maryland, where A gave an equitable life-estate to C, and a similar estate to his chil- dren surviving him, and remainder absolutely to the issue of such children, it was held that the last limitation was void, as violating the rule against perpetuities.^ [Moreover, it is evident that Mr. Gray has drawn some of the American courts into alignment with his view.^] § 1815. Powers affected by Perpetuities. — The time within which a power of appointment, etc., must be limited to be executed, and must be executed in order to be a valid power or make a valid execution, is materially affected by the rule of law against perpetuities. This restriction applies to a limita- tion made through the medium of powers, to the same extent as to one made by any other mode. If, therefore, a limitation made by the deed creating the power would have been void because of its remoteness, it cannot be made by an appoint- ment to such nses under the power thereby created. Thus if an estate were limited to A for life, remainder to his unborn son for life, remainder to the sons of his unborn son, the limitation would be too remote so far as the grandchildren were concerned, and therefore void. And if, instead of that, the limitation had been to A for life, with power to appoint to his children, and he appoints to a son born after the deed made, with remainder to the sons of such son, the appointment would be void as to such grandchildren, as being too remote. The case here put is that of a special and limited power. But if the power be a general one in the donee, whereby he can appoint to whom he please, and such an estate as he pleases, it is regarded as so nearly like a fee in him, that provided the appointment, when he makes it, is not too remote, it matters 1 Purdy V, Hayt, 92 N. Y. 446. 2 Levering v. Lovering, 129 Mass. 97 ; Hillb v. Simonds, 125 Mass. 536 ; Otis 1-. McLellan, 13 Allen, 339. 3 Heald V. Heald, 56 J[d. 300. * Chilcott V. Hart, 23 Colo. 40 ; s. c. 35 L. R. A. 41 ; s. c. 45 Pac, Rep. 391. ACCUMULATIONS AND THE RULE AGALNST PERPETUITIES. 699 not though the limitation, as made, would not have been good if made by the deed creating the power. Thus, to carry out the same case as above supposed, except that the donee has a general power, if property is conveyed to A, with power to appoint by deed to such uses as he thinks fit, and he, having no son at the time, waits till he has one before making the appointment, and then he appoints to that son, with remainder to the sons of such son, it will be good. The appointment in the case first supposed relates back to the state of things at the date of the first deed. In the other it relates to the date of the execution, just as if the donee, being the owner in fee, had then conveyed to a living son, remainder to one unborn, which would be a good limitation. § 1816. Distinction betw^een Po'wera by "Will and those by Deed. — And in this respect there is an important distinction between the limitations of powers by will and those by deeds. Deeds are construed to take effect from the day of their exe- cution, but wills from the death of the testator. So that, if the limitation first above mentioned — namely, a power to A to appoint to his children — had been by will, and he had no son at the making of the will, but has one during the lifetime of the testator, he may appoint to such son, with remainder to his unborn sons; for a son born before the death of the testator would be considered, so far as a limitation to his children goes, in the same light as one born at the date of a deed, § 1817. Instrument creating the Power furnishes the Test, — The point of .inquiry, in a case under a special power, is the instrument creating, and not the instrument executing, the power. 1 The great case of Marlborough v. Godolphin may serve to illustrate the application of some of the foregoing rules. That was a devise to A for life, remainder to his first and other sons in tail-male successively ; but upon the birth of each of such sons, trustees were to have power to revoke the uses limited to the sons respectively in tail, and to limit the premises to such sons for life, with immediate remainders to 1 1 Sugd. Pow. (ed. 1856) 471-475 ; Lewis, Perpet. 4S3-485 ; Burt. Real Prop. §§ 787, 792 ; 2 Flint. Real Prop. 547 ; Co. Lit. 271 b, Butler's note, 231 ; 2 Prest Abst. 165, 166. 700 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. the sons respectively of such sons in tail-male. It was held to be a void power as to such sons of sons, as tending to per- petuate the estate in the line of the testator's family beyond the period authorized by the law.^ So where there was a settlement to A for life, remainder to B in fee, with a power to C and his heirs to revoke the uses, it was held a void power, the period being indeterminate within which it might be ex- ecuted, and might extend beyond the prescribed period of remoteness.^ §1818. How a Power must be limited. — It is therefore necessary, in the creation of a power, to assign the period within which it must be exercised. A power, however, though not in terms required to be exercised within the prescribed limits of remoteness, may be good if given to a person living, without being extended to his personal representatives or heirs, since it would constructively be for his life only. It would also be good though it w^as to be executed by one of his heirs, if it required the assent or direction of a person living in order to its validity. But if it were given to the donee and his heirs, without anything to limit its execution to a life or lives in being, etc., it would be invalid.^ §1819. Of Powers which are partially good. — Although, as before stated, a power, the direct effect of whose execution is to create a perpetuity, is void, yet a particular power may be good, though delegated in terms general enough to include objects too remote to admit of a valid execution in their favor, provided it be actually executed in favor of one who is within the prescribed limits as to remoteness. As, for instance, a power to appoint to children, grandchildren, or other issue which is broad enough to include issue in any degree, and which cannot be executed in favor of the issue of an unborn child, if executed in favor of a child, though unborn, of a living person, will be good. " The possible exercise of the power in favor of such objects only answers to the cnances of 1 Marlborough v. Godolphin, 1 Eden, 404, s. c. 2 Ves. Sen. 61, and reported also under name of Spf-ncer i'. Marlborough, 5 Brown, P. C. 592 ; Gee v. Audley, cited in Routledge v. Dorril, 2 Ves. Jr. 368 ; Gilb. Uses, Sngd. ed. 160, n. 2 Ware v. Polhill, 11 Ves. 283 ; Bristow v. Warde, 2 Ves. Jr. 350, note ; 2 Flint. Real Prop. 547 ; Burt. Real Prop. § 788. 8 Burt. Real Prop. § 788. ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 701 abuse which attend the power of dominion possessed by a per- son absolutely, but which liave never been supposed to justify the total deprivation of that power." ^ J3ut if the power had been to appoint to the child of a person unborn at the time of the creation of the power, if by deed, or the death of the testa- tor, if by will, and living at the date of the appointment, and specifically named in it, it would be void, even though the cliild to whose children the aj)j)ointmcnt is to be made were to die before the appointment made, as the limitation must be considered in all respects as if it had formed a part of the original settlement?' § 1820. Result where Power void for Remoteness. — The validity of the estates raised by appointments is governed by the same rules which ap[)ly to executory devises. If an ap- pointment which is not bad for remoteness is followed by one which is bad for remoteness, the first appointment will take effect and the second fail, if they can be separated.^ In those States in which the provisions of the Wills Act have been adopted, 1 Vict. c. 26, § 25, i. c. that void devises fall into the residuary clause if an appointment fails for remoteness, the property passes under the residuary clause. If there is no residuary clause, it goes as in default of appointment.^ If the power of appointment is bad because too remote, and it ap- pears that the donor of the power thought it was a good power, or intended to make such a disposition of his property, knowing it to be bad, and the persons who are entitled to the property by reason of the invalidity of the appointment take also interests under the will, they will be put to their election whether they will give up their claim on the property which is the subject of the power, and keep their other interests under the will, or whether they will give up such other interests and insist upon their rights to the appointed property.^ 1 Burt. Real Prop. §§ 792, 793 ; Lewis, Perpet. 487, 491 ; 1 Siigd. Pow. (ed. 1856) 475. 2 Lewis, Perpet. 491, 492. 8 Routledge v. Dorril, 2 Ves. Jr. 357 ; Gray, Perpet. § .531. * Webb V. Sadler, L. R. 14 Eq. .533 ; Gray, Perpet. §§ 533, 534. In those States where the provisions of the Wills Act are not adopted, the property would go as limited in default of ayipointment. 6 Wollaston t;. King, L. R. 8 Etj. 165 ; Gray, Perpet. § 541 et seq. 702 ACCUMULATIONS AND THE EULE AGAINST PERPETUITIES. §1821. Illustration. — In 1790, bj an indenture, a settle- ment was made, whereby trustees were to pay the dividends of <£10,000 to Elizabeth, wife of James, for life, for her sepa- rate use. After her death, the dividends of one moiety to James for life ; " and after the death of the survivor of them, the trustees were to transfer that moiety unto all or any one or more of the children of E. and J, begotten or to he begotten, or unto all or any one or more of such children, and all or any of the issue of all or of any of such child or children, at such time or times, in such shares, etc., as E. H. should by deed or will appoint, and in default, etc." Here it will be perceived, the power given to E. H., to be executed by deed or will, was to appoint to the children of E. and J. begotten, " or to be begotten," or to any issue of all or any of such child or chil- dren. Regarded, therefore, as a power to appoint to the issue of unbegotten children, it was clearly too remote and void ; and the same would be true regarded as a power of appoint- ment to a set of persons collectively , where some are within the rules as to perpetuity, and others are not, so that, although some of their children might have been then born, the effect would have been the same if the power required the appoint- ment to include the issue of unborn children. Now, in point of fact, E. and J. had, at the time of making the settlement, four sons and two daughters ; and the power to E. H. con- tained therein was, as will be perceived, one of selection as to the objects of appointment ; and when E. H. came to execute the power of appointment, which he did by will, he recited the indenture, enumerated the six children of E. J., and "appointed that the shares of the £10,000, which each of the children of E. and J., begotten or to be begotten, as were or should be daughters, would be entitled to in default of ap- pointment, should remain vested in the trustees upon trust as to one moiety thereof, after the decease of E. and J., to pay the dividends to each of the said daughter and daughters as should have attained twenty-one, or be married, for their separate use for life, according to their respective shares of the capital ; and that, after their death, the trustees should transfer their shares of the capital unto and equally between and among all their children respectively." So that he in reality ACCUMULATIONS AND THE RULE AGAINST PERPETUITIKS. 703 appointed a certain share of the fund to the daughters wliusc names had previously been recited, for life, with a remainder absolutely to their children, irrespective of their having tiien been born or not. It was contended that this appointment to their children was void for remoteness. But the V ice-Chan- cellor held, that the power was good in its creation, though some of its objects might have been beyond the limit prescribed by law, as it was a power of selection, and the donee might have selected such of the objects only as were within the pre- scribed limits. That though, if he had made the appointment collectively among a set of persons, some of whom were within the rule of law as to perpetuity, and some were not, it would have been void in toto, instead of having done so in this case, E. A. did not appoint the bulk of the fund, but merely directed how the share of each daughter should go after her death ; and though, if there had been a seventh or an eighth daughter, the appointment would have been bad as to their children, nevertheless the appointment as to the share of one of the daughters who was enumerated and named by him would have been good. The partial invalidity of the appointment with regard to the shares of her younger sisters could not have affected the validity of the appointment of her share.^ NOTE. STATUTE RULES AGAINST PERPETUITIES. While some of the States have been content to adopt the rules of the common law against perpetuities, others have regulated the matter by statute, and especially so much of it as relates to limitations of estates upon the failure of issue, and the like. It has been the purpose, in what follows, to present an outline of the legis- lation upon this subject in the several States. In Alabama, lauds may be conveyed to the wife and childn;n, or children only, severally, successively, and jointly, and to the heirs of the body of the survivor, if they come of age, and, in default thereof, over. But conveyances to others than the wife and children, or children only, cannot extend beyond three fives in being at the date of the convej'ance, and ten years thereafter. Code, 1896, § 1030. In Arkansas, the constitution declares that perpetuities shall not be allowed. Const. Art. 2, § 19. In California, the absolute power of alienation cannot be suspended, by any 1 Griffith V. Pownall, 13 Sim. 393. 704 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. limitation or condition whatever, for a longer period tlian during the continuance of the lives of persons in being at the creation of the limitation or condition, except that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons ta whom the first remainder is limited die under the age of twenty-one years, or upon any other contingency by wliich the estate of such persons may be determined before they attain majority. Civil Code, 1899, §§ 715, 772. In Indiana, the law is the same as in California. 2 R. S. 1894, §§ 3382, In Iowa, every disposition of property is void which suspends the absolute power of controlling the same for a longer i)eriod than during the lives of persons in being, and for twenty-one years thereafter. Code, 1897, § 2901. In Kentucky, the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter. Stat. 1894, § 2360. In Michigan, the law is the same as in New York. Annot. Stat. 1882, §§ 5530- 5532. In Minnesota, the law is the same as in New York. Stat. 1891, §§ 3976-3980. In Mississippi, while fees-tail are prohibited, and are declared to be fees-.simple, one may make a conveyance or devise of lands in succession, to donees then in being, not exceeding two, and to the heirs of the body of the remainder-man, and, in default thereof, to the right heirs of the donor in fee-simple. Annot. Code, 1892, § 2436. In New York, the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer ])eriod than during the continuance of not more than two lives in being at the creation of the estate (N. Y. Rev. Stat., 9th ed., p. 1790, §§ 15, 16; Levy v. Levy, 33 N. Y. 97), except in the single case that a contingent remainder in fee may be created on a prior remainder in fee, and take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such person may be determined before they attain their full age. Successive limitations of estates for life are not valid unless to persons in being at the creation thereof ; and when a remainder shall be limited on more than two successive estates for life, all the life-estates subsequent to those of the two persons first entitled thereto shall be void ; and upon the death of those per- sons, the remainder shall take effect in the same manner as if no other life-estate had been created. No remainder may be created for the life of another person or persons than the grantee or devisee of such estate, unless such remainder be in fee ; nor may a remainder be created upon such an estate in a term for j'ears, unless it be for the whole residue of such term. When a remainder is created upon any such life-estate, and more than two persons are named as the persons during whose lives the life-estate shall continue, the remainder takes effect upon the death of the two persons first named, in the same manner as if no other lives had been intro- duced. A contingent remainder may not be created on a term for years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof. And these provisions apply to deeds as well as to wills. 2 R. S. (9th ed.) p. 1790. A limita- tion to A for life, remainder to B for life, remainder to C and D and the survivor of them, is within the prohibition of the statute against limiting an estate for more ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. 705 than two lives. Arnold r. Gilbert, 5 Barb. 190. But a remainder in fee after the expiration of two lives in being at the testator's death may be created in favor of one not in being at that time ; and a second limitation may be good to one not in being, who may be living at the death of the lirst remainder-man, if such remainder- man die under the age of twenty-one. Manice v. Manice, 43 N. Y. 303, 378. In Ohio, no estate in fee-simple, fee-tail, or of any lesser estate in lands or tenements, shall be given or granted by deed or will to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of the making of the deed or will. 1 R. S. 1896, § 4200. In Wisconsin, the law is the same as in New York. 1 Anuot. Stat. 1892, § 2046 et seq. Many of the States have adopted the following statutory provisions relating to limitations upon failure of issue : Where a remainder is limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the word " heirs," or "issue," is to be construed to mean heirs or issue living at the death of the person named as ancestor. But posthumous children are entitled to take the estate in the same manner as if born before the death of the parent ; and any future estate depending upon the event of the death of a person without heirs, issue, or children, is defeated by the birth of a posthumous child of such person capable of taking by descent. This rule has been adopted in Alabama, Code 1896, §§ 1023, 1024 ; California, Civil Code 1899, § 1071 ; Georgia, 2 Code 1895, § 3086; Kentucky, Stat. 1894, § 2344; Michigan, Annot. Stat. 1882, § 5538 ; Minnesota, Stat. 1891, §§ 3971, 3978; Mississippi, Annot. Code 1892, § 2448 ; Missouri, R. S. 1899, § 4593 ; South Carolina, 1 R. S. 1893, § 1976 ; Wisconsin, 1 Annot. Stat. § 2040. A similar rule prevails in Virginia, Code 1887, §2422; West Virginia, Code 1899, p. 680; and Tennessee, Code 1896, § 3675, unless the intention of such limitation be otherwise plainly declared on the face of the deed or will creating it. And, so far as limitations by devise are concerned, the same rule applies in North Carolina, Code 1883, § 1327 ; and New Jersey, 3 Gen. Stat. 1896, p. 3761. STATUTES AGAINST ACCUMULATIONS. In New York there may be an accumulation of rents and profits of real estate for the benefit of one or more persons, directed by any will or deed sufficient to pass real estate, if such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise. It must be made for the benefit of one or more minors then in being, and must terminate at the expiration of their minority. If the direction for such accumulation be for a longer time than during the minority of the persons intended to be benefited thereby, it will be void as respects the time beyond such minority. 2 R. S. (9th ed.) p. 1793. In Michigan, Wisconsin, Minnesota, and California, the same provit-ions are re-enacted in the sections of their respective compilations of laws above cited. In Alabama, no trust of estates for the purpose of accumulation only can have any force or effect for ^ longer term than ten years, unless when made for the benefit of a minor in being at the date of the conveyance, or, if by will, at the death of the testator ; in which case the trust may extend to the termination of such minority. Code, 1896, § 1031. In Pennsylvania, trusts for the accumulation of rents and profits cannot be VOL. II. — 45 706 ACCUMULATIONS AND THE RULE AGAINST PERPETUITIES. created for a longer term than the life or lives of any grantor or grantors, settler or settlers, or testator, and the term of twenty-one years from the death of any such grantor, settler, or testator ; that is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation ; and all other trusts for accumulation are void in so far as these limits are exceeded. Charities are exempted from the operation of the act. Pepper & Lewis' Dig. 1896, col. 4055. END OF VOL. 11. LAW LIBRARY OF LOS ANGELES COUNTY UC SOUTHERN REGIONAL LIBRARY FACILITY III'MI Hi 1 AA 000 851 280 8