I> THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Of t'li'incntary tiPatises on all the priaciiial subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles in blacklet- ter type. 2. A more extended commentary, elucidating the princi- ples. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per volume, including delivery. Bound in American Law Buckram. ]. Norton on Bills anil Notes. (3d Ed.) L'. Clark on Criminal Law. (-d Ed.) :;. Shipman on Comnion-Law I'leading. ('2d Ed.) 4. Clark on Contracts. (2d Ed.) .".. Black on Constitntional Law. (3d Ed.) li. Fetter on Equity. 7. Clark on Criminal Procedure. 5. Tirtany on Sales. (2d Ed.) 1>. Clenn on International Law. 10. .Ta.i:j:ard on Torts. (2 vols.) 11. P.lack on Interpretation of Laws. 12. Hale on Bailments and Carriers, i:;. Smith on Elementary Law. 14. Hale on Damages. l.j. Hopkins on Real Property. IG. Hale on Torts. 17. Tiffany on I'ersons and Domestic Relations. (2d Ed.) 18. Croswell on E.xecutors and Administrators. 19. Clark on Corporations. (2d Ed.) 20. George on Partnersliip. 21. Shipman on Eipiity Pleadii'.g. 22. McKelvey on Evidence. (2d Ed.) 23. Barrows on Negligence. 24. Hughes on Admiralty. 2."). Eaton on Equity. 20. Tiffany on Principal and Agent. 27. Gardner on Wills. 28. Vance on Insurance. 20. Ingersoll on Public Corporations. .^0. Hughes on Federal .Turisdiction and Procedure. 31. Childs on Suretyship and Guaranty. 32. Costigan on American Mining Law. .33. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C5855g HANDBOOK ON THE LAW OF REAL PROPERTY BY EARL P. HOPKINS, A. B., LL. M. Author of Problems and Quiz on Criminal Law, Contracts, Criminal Procsdnre, Constitutional Law, eta St. Paul, Minn. WEST PUBLISHING Ca 1896 COPTRIGHT, 1896, BY WEST PUBLISHma COMPANY. To EMLIN McCLAIN, A. M., LL. D.. Chanoellor Lav» Department State University of Iowa, this volume is affectionately inscribed. ce'Tr,?^ PREFACE. This volume is the result of an attempt to put the fundamental rules governing the law of real property into a form as easy of com- prehension as possible, and so arranged that investigation of any part may be made with ease, promptness, and certainty. It will be found that many of the seeming technicalities of the subject disap- pear with the statement of the reasons on which they are based. These reasons are in many cases historical, and therefore as much of the history of the law of real property has been given as is necessary for an understanding of these reasons; but the mere curiosities of English law, and the interesting, but useless, legal antiquities some- times found in books on this subject, have been excluded. The effort has been to present a clear-cut picture of the English system of real property law as introduced into this country, and, with this as a basis, to explain the effect of the statutory changes which have been made in many parts of that system. To do this, it is first shown to just what kinds of "things owned" the law of real property applies, and then the "equation of estates" is taken up, and carefully worked out. This is the backbone of our whole scheme of land ownership. The black-letter text shows the principles on which estates are classified, and the relation of the various possible inter- ests in land to each other, and to the whole ownership. In following out the discussion under the several principles of classification, — for instance, in treating of future interests,— the essential facts which distinguish the various future estates have been emphasized, and then the incidents common to all future estates treated together, for the sake of clearness and ease of comprehension. So much of the law of persons as is peculiar to real property will be found col- lected in one chapter. In places where the law has become un- settled from confusion in the use of tenns, as in the law of fixtures and the classification of trusts, the terminology adopted has been explained, and then followed throughout. While there has been no KEAL PROP. (V) VI PREFACE. attempt to harmonize the cases on fixtures, a classification and work- ing theory has been suggested which it is believed will prove useful. Special attention has been paid to the latest authorities as showing what parts of the law of real property are now in process of growth. The recent "Torren's Title Act," of Illinois, has been explained at some lengtli, because it is in all probability the forerunner of the introtUiction into this country of some system of registration of title in place of our present system of the registration of conveyances. KP. H. St Paul. Minn., August 1, 1806. TABLE OF CONTENTS, CHAPTER I. WHAT IS REAL PROPERTT. a CHAPTER n. TENURE AND SEISIN. 9. Tenure 10. Seisin . CHAPTER m. ESTATES AS TO QUANTITY— FEE SIMPLE. 11. Estate Defined 12. Classification of Estates 13. Quantity of Estates 14-15. Freehold— Estates of Inheritance 16. Fee Simple 17. Creation 18. Right of User 19. Alienation REAL PROP. ^^") P&K« 1-3 Section 1. Real and Personal Property 2. Real Property— Land 3. Things Growing on Land 4. Fixtures ' 5. What Fixtures Removable 6. Time of Removal 7. Equitable Conversion Personal Interests in Land 24-25 7-10 10-11 11-22 22-23 23-24 26-31 31-32 83 33 84 S4:-35 35-30 86-39 39 39-41 Vlil TABLE OF CONTENTS. CHAPTER IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAIIj. Section Pas* 20. Estates Tail Defined 42-43 21-22. Classes of Estates Tail •1^-44 23. Origin of Estates Tall 44-47 24-2"). Creation of Estates Tail 47-49 26. Incidents of Estates Tail 49-50 27. Duration of Estates Tail 50-52 28. Tenant in Tail After Possibility of Issue Extinct 52 29-30. Estates Tail In the United States 5^-53 31. Quasi Entail 53-54 CHAPTER V. ESTATES AS TO QUANTITY (Continued)— CONVENTIONAL LIFE ESTATES. 32. Life Estates Defined 55 33. Creation of Life Estates 55-56 34-3G. ConTentional Life Estates 56-58 37. Incidents of Life Estates 58-07 38-39. Estates per Autre Vie 67-03 CHAPTER VI. ESTATES AS TO QUANTITY (Continued)— LEGAL LIFE ESTATES. 40-41. Legal Life Estates— Estates by Marriage 69-70 42. Estate duxlng Coverture 70-73 43-44. Curtesy 73-76 45. In What Estates 76-79 46. Incidents 79-80 47. How Defeated 81-82 48. Statutory Changes 82-83 49. Dower— Definition 83-85 50. In What Estates 8(>-93 61-52. Quarantine 94-95 53, Assignment 95-97 54. When Value Estimated 97-98 65. Method of Division 98-99 TABLE OF CONTENTS. IX Bection Page 56. By Whom Assigned 99-100 57. Recovery by Action 100-101 68-59. Incidents 101-102 GO. How Defeated 102-111 61. Statutory Changes 112 62. Homestead H- 63. Who Entitled to Homestead 113-115 (M. Duration of Exemption. 115 65. In What Estates 116-117 66-67. Amount of Exemption 117-118 68. How Acquired 118-110 69. Selection 120 70. How Lost 120-124 71. Privileged Debts 124-126 72. Federal Homestead Act 126-127 CHAPTER Vn. ESTATES AS TO QUANTITY (Continued)— LESS THAN FREEHOLD. 73-75. Estates for Years 12S-129 76. Creation of Estates for Years 130-134 77. Rights and Liabilities of Landlord and Tenant. 134 78-79. Rights under Express Covenants 134^137 80-81. Rights under Implied Covenants 138-141 82. Rights Independent of Covenants 141-146 83. Transfer of Estates for Years 147-150 84. Termination of Estates for Years 150-153 85. Letting Land on Shares 154-155 86. Tenancies at Will 155 87. Creation 155-150 88. Incidents 156-157 89. Termination 157-158 90. Tenancies from Year to Year 158 91. Creation 15S-160 92. Incidents 160 93. Termination 161-162 94. Letting of Lodgings 1G2-1G3 95. Tenancies at Sufferance 163 96. Creation 163-164 97. Incidents 164 98. Termination 1G5 99. Licenses 165-167 100. Revocation of Licenses 167-168 TABLE OF CONTENTS. CHAPTER Vm. ESTATES AS TO QUALITY-ON CONDITION-ON LIMITATION. Section ^*f' 101. Estates as to Quality ^^'-^ 102. Estates on Condition 16£^170 103-104. Conditions Precedent and Subsequent 170-172 105. Void Conditions 172-173 10(i. Termination of Estates on Condition 174-17G 107. Who can Enforce a Forfeiture 176-177 108. Estates on Limitation 177-178 109. Base or Determinable Fees 178-179 CHAPTER rX. 110. 111. 112. 113. 114. 115. 110. 117. 118. 119. 120. 121. 122. 123-124. 125-126. 127-129. 130. 131. 132. 13a-134. 135. 136. 137. 18&-139. 14a ESTATES AS TO QUALITY (Continued)— MORTGAGES. Mortgage Defined 180-182 Parties to a Mortgage 182 Nature of a Mortgage 182-184 What may be Mortgaged 184r-18o Form of a Mortgage • 186-194 Rights and Liabilities of Mortgagor and Mortgagee 194 Nature of Mortgagor's Estate 195-196 Possession of Mortgaged Premises 196-197 Insurance on Mortgaged Premises 197-199 Accounting by the Mortgagee 199 Debits 199 Credits 200 Annual Rests 200-203 Subrogation : 203-205 Assignment of the Equity of Redemption 205-209 Assignment of the Mortgage 209-212 Priority of Mortgages and Other Conveyances 212-218 Registration 218-227 Dlscliarge of a Mortgage 227 Performance 227-231 Merger 231-233 Redemption 233-238 Form of Discharge 238-239 Foreclosure 239-242 Kinds of Foreclosure 242-250 TABLE OF CONTENTS. XI Section 141. 142. 143-144. 145. 146. 147. 148-149. 150-151. 152. 153. 154. 155-156. 157-158. CHAPTER X. EQUITABLE ESTATES. Page OKI _'>fi2 Legal and Equitable Estates -^^ -_ Use or Trust Defined The Statute of Uses 253-254 Wben the Statute does not Operate 254-257 257 Classification of Trusts 258 Express Tmsts Executed and Executory Trusts 25&-2o9 Creation of Express Trusts 260-264 Implied Trusts 264-265 Resulting Trusts 265-268 Constructive Trusts 269-2.1 971 —274 Incidents of Equitable Estates ^'^ ""^ 274—277 Charitable Trusts ^3-2G4- Description of the Property 419-426 205. E.xecutlon of the Writing 426-432 266. Delivery and Acceptance 433-436 267. Acknowledgment 436-438 208. Witnesses 439 269. Registry 439-440 270. Covenants for Title 440-442 271. Covenant of Seisin 442 272. When Broken 442 273. How Broken 442^44 274. Covenant against Incumbrances 444 275. How Broken 444-446 276. Covenant of Warranty 446 277. How Broken 446 278. Special Warranty 446-449 279. Covenant for Further Assurance 449-450 280. Estoppel 450-456 281. Adverse Possession 456-470 2S2. Accretion 470-472 283. Devise 472-478 284. Descent 478-486 285. Judicial Process 486 286. Conveyances under Licenses 480-488 287. Conveyances under Decrees 488-490 288-290. Tax Titles 490-494 291. Eminent Domain 494-495 t HANDBOOK ON THE LAW OF REAL PROPERTY, CHAPTER I. WHAT IS REAL PROPERTY. 1. Real and Personal Property. 2. Real Property— Land. 3. Things Growing on Land. 4. Fixtures. 6. What Fixtures Removable. 6. Time of Removal. 7. Equitable Conversion. 8. Personal Interests In Land. REAL AND PERSONAL PROPERTY. 1. Property means things owned, and is divided into : (a) Real property, and (b) Personal property. Real and Personal Actions, For our present purposes, property Is divided into two classes,— real property and personal property.^ The terms come from the old division of the actions given a man deprived of his property iuto real actions and personal actions. All things which could be re- covered in real actions were real property, and all other property 1 This division, and similar ones in other systems of law, is historical, and not philosophical. See Maine Anc. Law (3d Am. Ed,) p. 206. BEAL PROP. — 1 2 WHAT IS REAL PROPERTY. (Ch. 1 was personal.' In real actions there was an actual recovery of the land itself, but in personal actions there could be no recovery of the real thing, except in the action of replevin. The person detaining it could not be compelled to deliver the identical thing, but might elect to pay damages.^ The action was accordingly in personam to obtain damages, and the property involved was called ''personal prop- erty." Importance of Distinction letween Heal (md Personal Property. The principal differences between real and personal property are as follows: On the death of the owner, realty passes at once to the heir or devisee,* while personalty goes to the personal rep- resentative, and through him to the distributee or legatee.' The personal property of a decedent is to be Ui^ed in paying his debts before his realty.** The modes of transferring real and personal property are different. The ownership of realty is now transferred by means of a written instrument, executed with certain prescribed formalities,^ while personalty passes generally by sale and de- livery, without more.« So, also, there are different requirements as to the form and recording of mortgages affecting them.^ Then, again, a transfer of real property is governed by the law of the place where the land is situated,^** but of personal property by the law of the domicile of the owner." There are differences in form and place of bringing action for damages to lands and to chattels." « Co. Lltt. 121a, Butler & H. note 1; Bouv. Law Diet tit. "Real Property." It has been suggested that the term "mixed" be added to cover those things which may be real or personal according to circumstances. Kelke, Real Prop. 4. 8 Dig. Real Prop. (4th Ed.) 71, note 2. * 1 Woemer, Adm'n, pp. 15, 408. B 1 Woemer, Adm'n, p. 409. « 2 Woemer, Adm'n, p. 1093. T Post, p. 308. « Tiff. Sales, p. 83. e Stini. Am. St. Law, arts. 185-194, 453; post, p. 218; 1 Schouler, Pers. Prop. (2d Ed.) c. 6. 10 Post, p. 474. 11 Story, J., in Black v. Zacharie, 8 How. (U. S.) 483, 614; Woemer, Adm'n, p. 131. 12 1 Jag. Torts, p. 102 et seq. § 2) REAL PROPERTY LAND. 3 There is also a difference as to taxation of the two kinds of prop- erty.^' Lands^ Tenements^ and Hereditaments. At an early period in legal history the two classes of property were distinguished as "lands, tenements, and hereditaments," and "goods and chattels."" A tenement is axiything which can be holden; that is, anything subject to tenure." Hereditaments are things which can be inherited; that is, which, on the death of the owner intestate, descend to the heir. Personal as well as real property may be a hereditament; for instance, heirlooms, which, though personal property, descend with the inheritance." Thus "tenement" is a broader term than "land," and "hereditament" broader than "tenement." The division of things into movables and immovables by the civil law is not the same as the common law division of things into personalty and realty.^' REAL PROPERTY— LAND. 2. Ijand, meaning tlie soil and minerals of tlie earth, is real property, except: EXCEPTION— Parts of the land actually severed with intent to make them personalty (p. 7). Land. The word "land" is often used as practically synonymous with "realty," and as such it includes not only the soil, but everything attached to it or growing or imbedded in it," extending upward 18 Cooley, Tax'n, pp. 270, 275; Stim. Am. St. Law, arts 33, 35, 1* 2 Bl. Comm. 16. IB 2 BL Comm. 16; Potter, J., in Canfield v. Ford, 28 Barb, (N. Y.) 336; Hosmer, C. J., in Mitchell v. Warner, 5 Conn. 518. See post, p. 26. leld. IT Strong V. White, 19 Conn. 238; Dickey, J., in Ohio & M. R. Co. v. Weber, 96 111. 448; Penniman v. French, 17 Pick. (Mass.) 404. But see 2 Bl. Comm. 15, 18 2 Bl, Comm, 17; Barnett v, Johnson, 15 N, J. Eq. 481; Field v. Barling, 149 111, 556, 37 N. E. 850; Ruggles, J., in Mott y. Palmer, 1 N. Y. 504, 569; Isham V. Morgan, 9 Conn. 374. Cf. In re Department of Public Parks, 60 Hun, 576, 14 N. Y. Supp. 347. 4 WHAT IS REAL PROPERTY. (Ch. 1 Indefinitply and downward to the center of the earth, as is ex- prt'ssed by the phrase "Cujiis est solum ejus est usque ad coelum us(|Uo ad ortuni." *® Therefore an owner of hind may cut off the limbs of trees which hang over his boundary line without com- mitting a tort.*" An exception to the rule is seen in the case of the ownership of realty by horizontal divisions, so that one per- son may own the surface and another have the right to the min- erals which are under the surface.^^ In a more limited sense, land means the soil of the earth, the water upon it, and the min- erals, fossils, etc., imbedded in it.^^ Those things, like buildings, vvhich are generally included in the meaning of the term "land," will be discussed separately. Wafer. Running waters are not owned by those who own the land over which they flow. These riparian owners, as they are called, have only an easement in such waters. These rights in water are treated as real property.^ ^ But standing water and percolations beneath the surface belong to the owner of the soil.^* In any case a man 18 Slosson, J., In Sherry v. Frecking, 4 Duer (N. Y.) 452, 457; Welles, J., In Aiken v. Benedict, 39 Barb. (N. Y.) 401. «o Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Smith, J., In Countiyman -V. Liyhtbill, 24 Hun, 4UG. But he has no right to the iruit on trees overhang- ing his land. Skinner v. Wilder, 38 Vt 115; Lyman v. Hale, 11 Conn. 177. When a tree standing on one man's land sends roots Into the soil of an ad- joining proprietor, the one on whose land the trunk stands owns all the tree and it."5 fruit. Masters v. Pollie, 2 Rolle, 141; Holder v. Coates, 1 Moody & M. 112; I.yman v. Hale, 11 Conn. 177; Hoffman v. Armstrong, 48 N. Y. 201; Skinner v. Wilder, 38 Vt 115. But, as holding that they are tenants In com- mon, see Waterman v. Soper, 1 Ld. Raym. 737. They are tenants In com- mon when the tree stands on the line Griffin v. Bixby. 12 N. H. 454; Dubois y. Beaver, 25 N. Y. 123. 21 Lillibridge v. Coal Co., 143 Pa. St. 293, 22 Atl. 1035; Delaware, L. & W. R. Co. V. Sanderson, 109 Pa. St. 583, 1 Atl. 394; Lee v. Bumgardner, SG Va. 81.5. 10 S. E. 3. «2 2 Bl. Comm. 17; Smith, C. J., in Johnson v. Richardson, 33 Miss. 402, 464; Ray, C. J., in State v. Pottmeyer, 33 lud. 402, 403; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436. as See post, p. 368. 14 Ocean Grove v. Asbury Park, 40 N. J. Eq. 447, 8 Atl. 168; Village of Brooklyn v. Smith, 104 111. 429; AJexander v. U. S., 25 Ut CI. 87; Hills v. c 2) BEAIi PROPERTY LAND. ^ has the exclusiye right to sail, fish, etc., in water overlying his land.="> But there are no such exclusive rights in connection with navigable waters," because the title to the soil under them is in the s1:ate." This is, however, denied by some cases, which hold the title to the bed of a navigable river to be in the riparian pro- prietor. =^« Navigable rivers are those which are navigable in fact.^» Bishop, 63 Hun. 624, 17 N. Y. Supp. 297; Walker v. Board. 16 Ohio. 540; Peo- ple V. Piatt, 17 Johns. 195. ^ „ ^. 25 Shrunk y. Navigation Co., 14 Serg. & R. 70; Reece v. MiUer. 8 Q. B. Div. 626; Waters v. Lilley. 4 Pick. 145; McFarlin v. Essex Co., 10 Cush. 304; Com. V. Chapin, 5 Pick. 199; Cobb v. Davenport, 32 N. J. Law. 369; Heck- man V. Swett, 107 Cal. 276, 40 Pac. 420. 26 Carson v. Blazer. 2 Bin. 475; Arnold v. Mundy. 6 N. J. Law. 1; Martm v. Waddell 16 Pet. 367; McCready v. Virginia, 94 XJ. S 391. Weston v. Sampson. 8 Cush 347; Chalker v. Dickinson. 1 Conn. 382; Attorney General v. Cham bers 4 De Gex, M. & G. 206; Sollers v. SoUers (Md.) 26 Atl. 188. And see Ba-ott V Orr, 2 Bos. & P. 472; Packard v Ryder, 144 Mass. 440, 11 N. E. 578^! But cf. Anon.. 1 Camp. 517. note; Blundell v. Catterall, 5 Barn. & Aid. 268; Fleet V. Hegeman, 14 Wend. 42. ,,„ tt o .T Pacific Gas Imp. Co. v. Ellert. 64 Fed. 421; Shively v. Bowlby. 152 U. S. 1 14 Sup. Ct 548; Bai-ney v. Keokuk, 94 U. S. 324; Poor v. McCiure, 77 Pa. St 214- Flannagan v. Philadelphia. 42 Pa. St. 219; McManus v. Carmichael, 8 Iowa l; TomUn v. Railway Co.. 32 Iowa, 106; Cooley v. Golden. 11. xAlo. 33 23 S W. 100; Smith v. Levinus. 8 N. Y. 472; People v. Appraisers, 33 N. Y. 461- Rumsey v. Railway Co., 130 N. Y. 88. 28 N. E. 763; Saunders v. Rail- way Co 144 N. Y. 75, 38 N. E. 992; State v. Pacific Guano Co., 22 S. O. 50; Bullock 'y Wilson. 2 Port. 436; Goodwin v. Thompson. 83 Tenn. 209; Con- cord Manuf g Co. v. Robertson, 66 N. H. 1. 25 Atl. 718; Illinois Cent R. Co. V Illinois 146 U. S. 387. 13 Sup. Ct. 110; Wainwright v. McCuUough, 63 Pa. St 66 But cf. Wilscn v. Welch, 12 Or. 353, 7 Pac. 341; Coxe v. State. 144 N Y 396 39 N. E. 400. That the title to the bed of such sti-eams is not In the United sktes. see Pollard v. Hagan. 3 How. 212. A riparian proprietor on a nonnavigable river owns the bed of the stream to the center. Ingraham v. Wilkinson. 4 Pick. (Mass.) 268; Wiggenhorn v. Kountz, 23 Neb. 690, 37 N. W. 28* Norcross v. Griffiths. 65 Wis. 599. 27 N. W. 606; Olson v. Merrill, 42 Wis. 203; Ensminger v. People. 47 IlL 384; Middleton v. Pritchard. 4 111. 510; Houck v. Yates, 82 111. 179; Trustees of Schools v. Schroh. 120 111. 509, 12 N. E 243- Gavlt v. Chambers. 3 Ohio. 496; Blanchard v. Porter. 11 Ohio, 139; Commi'ssioners of Canal Fund y. Kempshall. 26 Wend. (N. Y.) 404; Berry v. i» See note 29 on following page. 6 WHAT IS REAL PROPERTY. (Ch. 1 Tlie English rule that only fiose in which the tide ebbs and flows are navigable does not apply in this country." Ice. Ice belongs to the owner of the land over which it is formed,'^ but ice formed on public waters belongs to the one first appropri- ating it." Snyder, 3 Busb (Ky.) 2G6; Brown t. Chadboume, 31 Me. 9; Keyport, etc.. Steamboat Co. v. Farmers' Transp. Co., 18 N. J. Eq. 13; Morgan v. Reading, 8 Smedes & M. (Miss.) 366; Steamboat Magnolia v. Marsliall, 39 Miss. 109; Gates v. Wadlington, 1 McCord (S. C.) 580; Mathls v. Board of Assessors, 46 La. Ann. 1570, 16 South. 454; Gibson v. Kelly (Mont.) 39 Pac. 517. Cf. But- tonutli V. Bridge Co., 123 111. 535, 17 N. E. 439; Kyan v. Brown, 18 Mich. 196; State V. Black River Phosphate Co., 32 Fla. 82, 13 South. 640; Wood v. Town of Edeuton, 115 N. C. 10, 20 S. E. 165. 2» Weise v. Smith, 3 Or. 445; Rhodes v. Otis, 33 Ala. 578; McManus v. Carmichael, 8 Iowa, 1; Morgan v. King, 35 N. Y. 454; Spring v. Russell, 7 Greenl. (Me.) 273; American River Water Co. v. Amsden, 6 CaL 443; Jones V. Johnson (Tex. Civ. App.) 25 S. W. 650; Commissioners of Homochitto River V. Withers, 29 Miss. 21; Bayzer v. Mill Go. (Ala.) 16 South. 923; The Daniel Bell, 10 Wall. 557; The Montello, 20 Wall. 430; Chisolm v. Gaines, 67 Fed. 2S5; Stover v. Jack, 60 Pa. St. 339; Hey ward v. Mining Co., 42 S. G. 138, 19 S. E. 963, and 20 S. E. 64; Falls Jlanufg Co. v. Oconto River Imp. Co., 87 Wis. 134, 58 N. W. 257. And see Volk v. Eldred, 23 Wis. 410; Lewis v. Coffee Co., 77 Ala. 190; Rowe v. Bridge Corp., 21 Pick. 344; State v. Gilman- ton, 14 N. H. 407; People v. Elk River Mill & Lumber Co. (Cal.) 40 Pac. 431; State V. Eason, 114 N. C. 787, 19 S. E. 88. That the stream must be navigable In its natural state, see Jeremy v. Elwell, 5 Ohio Cir. Ct. R. 879; Ten Eyck v. Town of Warwick, 75 Hun, 562, 27 N. Y. Supp. 536. 8 Black, Const. I>a\v, 124; Weise v. Smith, 3 Or. 445; Wilson v. Forbes, 2 Dev. (N. C.) 30; The Daniel Bell, 10 Wall. 557. Cf. Veazie v. Dwinel, 50 Me. 479; City of Chicago v. McGinn, 51 111. 266; People v. TIbbetts, 19 N. Y. 523; Glover v. Powell, 10 N. J. Eq. 211. «i State V. Pottmeyer, 33 Ind. 402; Washington Ice Co. v. Shortall, 101 111. 46; Brookville & Metamora Hydraulic Co. v. Butler, 91 Ind. 134; Stevens v. KeUey, 78 Me. 445, 6 Atl. 868; Village of Brooklyn v. Smith, 104 lU. 429. And see Lorman v. Benson, 8 Mich. 18; People's Ice Go. v. The Excelsior, 44 Mich. 229, 6 N. W. 636; Howe v. Andrews, 62 Conn. 398, 26 Atl. 394. 82 Wood v. Fowler, 26 Kan. 682; Inhabitants of West Roxbury v. Stoddard, 7 Allen. 158; Biastow v. Ice Co., 77 Me. 100; Woodman v. Pitman, 79 Me. 456, 10 Atl. 321; Barrett v. Ice Co., 84 Me. 155, 24 Atl. 802. But cf. McFadden v. Ice Co., 86 Me. 319, 29 Atl. 1068. § 3) THINGS GBOWINQ ON LAND. 7 Minerals^ JFossils^ etc. Unmined minerals, metals, and fossils are realty, and belong to the owner of the land as a part thereof,^' as does also an aerolite which falls on the land.'* In England the right to gold and silver mines is in the crown,'' But the rule does not apply here. The United States and the states own mines as they own other property, — that is, the same as private individuals, — and not by reason of sov- ereignty,*' Exceptions — Things Severed from tJie Lrnid. Any of the things which have been enumerated as part of the land, and therefore realty, may become personalty by being sev- ered from the land.'^ This is true of portions of the soil itself." SAME— THINGS GROWING ON LAND. 3. BverythirLg gro"wring on land is real property, except: EXCEPTION'S — (a) Things constructively severed. (b) Annual crops. Things Or owing on Land — Annual Crops — Trees. Everything growing upon land, except annual crops '• is realty ** until it is made personalty by being severed.*^ The severance, 88 Appeal of Stoughton, 88 Pa. St. 198; Dunham v. Klrkpatrlck, 101 Pa. St. 36; HartweU v. Camman, 10 N. J. Eq. 128. 8* Goddard v. Winchell, 86 Iowa, 71, 52 N. W; 1124. 86 If the gold or silver was found together with baser metals, they all be- longed to the king if the value of the precious metals was greater than the value of the others. But If the baser metals were more valuable than the gold or silver, then the owner of the soil took both. Case of Mines, Plowd. 810; 3 Kent, Comm. 378, note; 1 Bl. Comm. 294. 8« Boogs V. Mining Co., 14 Cal. 279; Moore v. Smaw, 17 Cal. 199; 1 Cooley, Bl, Comm. 294, note 4. 87 Lykens Valley Coal Co. v. Dock, 62 Pa. St. 232; Higgins v. Kusterer, 41 Mich, 318, 2 N. W. 13; In re Clever's Estate, 23 Pittsb, Leg. J. (N. S.) 358; Kier v, Peterson, 41 Pa. St. 357. 88 See Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476; Riley v. Water Power Co., 11 Cush. 11. 88 Which are personalty. Robinson v. Ezzell, 72 N. C. 231; Crine v. Tifts, 65 Ga, 644; Bloom v. Welsh, 27 N, J, Law, 177; Pickens v, Webster, 31 La, *o See note 40 on following page, *! See note 41 on following page. 8 WHAT IS REAL PROPERTY. (Ch. 1 however, need not be an actual physical act, but may be construct- ive.*' For instance, trees and the like can be made personal prop- erty by conveying the land and reserving the trees, or by the own- er selling the trees as they stand on the land.*' Same — Emblements. The term "emblements" denotes such annual products of the land as have resulted from a tenant's own care and labor, and which he is entitled to take away after his tenancy has ended.** Annual crops are all "vegetable products of the earth, as corn, etc.,** which are produced annually *" by labor, industry, and man- Ann. 870; Brlttaln v. McKay, 1 Ired. (N. C.) 265; Polley v. Johnson, 52 Kau. 478, 35 Pac. 8; Mabry v. Harp, 53 Kan. 308, 36 Pac. 743. See, also, Winter- mute V. Light, 46 Barb. 278; Miller v. Baker, 1 Mete. (Mass.) 27; Butterman v. Albright, 122 X. Y. 484, 25 N. E. 856. But they pass with a conveyance of the land. Backenstoss v. Stabler, 33 Pa. St. 251; Coman v. Thompson, 47 Mich. 22. 10 N. W. 62; Powell v. Rich, 41 111. 466; Smith v. Price, 39 111. 28; Ter- hune V. Elberson, 3 N. J. Law, 533; Tripp v. Hasceig, 20 Mich. 254. As to matured crops see 2 Jones, Real Prop. § 1621. And go to a devisee. Dennett V. Hopkinson, 63 Me. 350; Bradner v. Faulkner, 34 N. Y. 347; Mr. Spencer's Case, Winch. 51; Cooper v. Woolfitt, 2 Hurl. & N. 122. As to what are annual crops, see Latham v. Atwood, Cro. Car. 515. *'j Maples v. Millon, 31 Conn. 598; Batterman v. Albright, 122 N. Y. 484, L*5 N. E. 856; Adams v. Beadle, 47 Iowa, 439; Wescott v. Delano, 20 Wis. 514; Cockrill v. Downey, 4 Kan. 426; Brackett v. Goddard, 54 Me. 309. *i State T. Moore, 11 Ired. (N. C.) 70. Cf. State v. Stephenson, 2 Bailey (S. C.) 334. But see In re Mulholland's Estate, 154 Pa. St 491, 26 Atl. 612. *3 As when owned by one who does not own the land. Jencks v. Smith, 1 N. Y. 90; Dayton v. Vandoozer, 89 Mich. 749; Warren v. Leland, 2 Barb. 613. *8 Yale V. Seely, 15 Vt. 221; Klngsley v. Holbrook, 45 N. H. 313. But cf. Brackett v. Goddard, 54 Me. 809. As to the requirements of the statute of frauda In relation to the sale of growing trees, see Clark, Cont. p. 106; Green V. Armstrong, 1 Denio, 550; Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Harris v. Frink, 49 N. Y. 24. «* Black, Law Diet, "Emblements." ♦BTliis includes grain. Peacock v. Purvis, 2 Brod. & B. 862; Cooper v. Woolfitt, 2 Hurl. & N. 122; Forsythe v. Price, 8 Watts, 282. And the straw. Craig V. Dale, 1 Watts & S. 509. Hemp. Co. Litt. 55a. Hops. Latham v. Atwood, Cro. Car. 515. Clover and artificial gi-asses. Graves v. Weld, 5 «8 As to teasels, see Graves v. Weld, 5 Barn. & Adol. 105; Kingsbury v. Collins, 4 Bing. 202. § 3) THINGS GROWING ON LAND. 9 urance, and are called 'fnictus industriales,' " as distinjjruislied from those spontaneous or natural products which are called "fructus naturales." Whenever such crops are planted " by one having an interest of uncertain duration in the land, and that interest terminates without his fault before the crops are harvested,** there is a right to enter to cultivate, harvest, and remove them.*' This right is given on the principle that the crops are not planted with any intention to benefit the one next entitled to the land, but with the expectation of reaping them. No one is entitled to em- blements who has terminated his estate by his own act."^" The Bam. & Adol. 105. Contra, Relfe v. Reiff, 64 Pa. St. 134; Evans v. Iglehart, 6 Gill & J. 171. But not growing grasses. Reiff v. Reiff, 64 Pa. St. 134. Nor young trees. Co. Litt 55a. But turpentine "scrape" may be. Lewis V. McNatt, 65 N. C. 63. And nursery stocit. Broolss v. Galster, 51 Barb. 196; King v. Howland, 7 Barb. 263. See, also, Brackett v. Goddard, 54 Me. 309. *7 The seed must be sown. Mere preparation of the ground is not suffi- cient. Price V. Picliett, 21 Ala. 741. *8 Harris v. Frinli, 49 N. Y. 24. Therefore a tenant from year to year is entitled to emblements. Clark v. Harvey, 54 Pa. St. 142, Reeder v. Say re, 70 N. Y. 180. A tenant at will. Davis v. Brocklebank, 9 N. H. 73; Davis v. Thompson, 18 Me. 209; Towne v. Bowers, 81 Mo. 491; Pfanner v. Sturmer, 40 How. Prac. 401; Sherburne v. Jones, 20 Me. 70. And a tenant for life. Poln- dexter v. Blackburn, 1 Ired. Eq. 286; Perry v. Terrel, 1 Dev. & B. Eq. 441; Hunt V. Watkins, 1 Humph. 497; Thornton v. Burch, 20 Ga, 791; Bradley V. Bailey, 56 Conn. 374, 15 Atl. 746. And his lessees. Bevans v. Briscoe, 4 Har. & J. (Md.) 139. But, when the interest is of definite duration, there is no right to emblements; for instance, under a tenancy for years. Whitmarsh v. Cutting, 10 Johns. 360; Sanders v. Ellington, 77 N. C. 255; Dircks v. Brant, 56 Md. 500; Hendrixson v. Card well, 68 Tenn. 389; Gossett v. Dry dale, 48 Mo. App. 430. But a custom to the contrary will give the right. Stultz v. Dickey, 5 Bin. (Pa.) 285; Biggs v. Brown, 2 Serg. & R. 14; Templeman v. Biddle,^ 1 Har. (Del.) 522; "Van Doren v. Everitt, 5 N. J. Law, 460; Foster v. Robin- son, 6 Ohio St. 90; Clark v. Banks, 6 Houst. 584. Contra, Harris v. Carson, 7 Leigh, 632. *9 Den V. Humphries, 3 Ired. (N. C.) 362. »o Debow V. Colfax, 10 N. J. Law, 128; Samson v. Rose, 65 N. Y. 411; Haw- kins V. Skeggs, 10 Humph. (Tenn.) 30; Gregg v. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918; Carney v. Mosher, 97 Mich. 554, 56 N. W. 935; Orland's Case, & Coke, 116a; Davis v. Eyton, 7 Bing. 154. Cf. Carpenter v. Jones, 63 111. 517. Bo the right Is lost by the assertion of a title paramount. Howell v. Schenck, 24 N, J. Law, 89; King v. Fowler, 14 Pick. 238. As by foreclosure 10 WHAT IS REAL PROPERTY. (Ch. 1 rip:lit to remove crops may be given in any case by express con- tract.** In some states the subject is regulated by statute." SAME— FIXTURES. 4. Chattels •which are annexed to land are called fix- tures. Fixtures are either: (a) Real fixtures, or those -which cannot be la-wfully re- moved by the o^wner of a limited interest in the land. Real fijxtures are real property. (b) Chattel fixtures, or those -which can be la^rfully re- moved by such an o-wner. Chattel fixtures are per- sonal property. Buildings erected upon land and chattels annexed to land or to buildings on the land are called "fixtures." "*' When the an- nexation is made by the owner in fee of the land, such fixtures be- come real property."* They may, of course, again become per- sonalty by being actually severed from the land with that intent." But, where the annexation is made by the tenant of a less estate than a fee, it is not always easy to determine whether such fixtures become realty or remain personalty. Things annexed by a tenant sometimes become realty, and sometimes do not. The question is of importance, because, if the chattels become realty, they cannot be lawfully severed or removed by the tenant, while if they remain personalty, notwithstanding their annexation, they may be removed by the tenant before or at the expiration of his term. There is great conflict in the cases. The confusion has of a mortgage executed before the lease. Lane v. King, 8 Wend. 584; Down- nrd v. Groff, 40 Iowa, 597; Gilman v. Wills, 66 Me. 273. But see Cassilly v. Rhodes, 12 Ohio, 88. Of. Lewis v. Klotz, 39 La. Ann. 259, 1 South. 539. 61 Van Doren v. Everitt, 5 N. J. Law, 400. B2 1 stim. Am. St. Law, §§ 1334, 2064, 3233. 68 Toaff V. Hewitt, 1 Ohio St. 511; Capen v. Peckham, 35 Oonn. 88; Potter V. Cromwell, 40 N. Y. 287; Peirce v. Goddard, 22 Pick. 559. »♦ Harris v. Scovel, 85 Mich. 32, 48 N. W. 173; Dooley v. Crist, 25 111. 551; Sampson v. Cotton Mills, 64 Fed. 939. But see Jenkins v. McCurdy, 48 Wis. €30, 4 N. W. 807. And cf. Green, J., in Stevens v. Railway Co., 31 Barb. 597. 6 6 Bostwick V. Leach, 3 Day (Conn.) 476; Lee v. Gaskell, 1 Q. B. Div. 700. § 5) WHAT FIXTURES REMOVABLE. 11 arisen largely from a loose use of the word "fixtures." The term has been used in three senses: First, as meaning simply chattels which are annexed to realty, irrespective of whether they may be removed or not; second, as meaning irremovable fixtures; and, third, as meaning removable fixtures." The resulting confusion of the cases is natural. It is hoped to avoid this confusion by calling those fixtures which cannot be lawfully removed "real fix- tures," because they have become realty. Fixtures which can be lawfully removed will be called "chattel fixtures," because they remain personal property." They may be taken on execution against the tenant as long as the latter's right to remove them exists. ''• 5. WHAT FIXTUHES KEMOV ABLE— Whether a fixture is a real or personal fixture, and lawfully remov- able, depends on the presumed intention with which- it was annexed. This intention is determined with reference to: (a) Express contract of the parties (p. 12). (b) Statutory regulation, which conclusively presumes intention (p. 12). (c) Character of the annexation (p. 13). (d) Adaptation of the fijsture for use with the realty (p. 15). avl3 V. Emery, 61 Me. 140. So fence boards, though temporarily removed,' remain part of the realty, so as to pass to a vendee. Goodrich v. Jones, 2 Hill (N. Y.) 142; McLaughlin v. Johnson, 46 III. 163. But see Harris v. Scovel, 85 Mich. 32, 48 N. W. 173. T9 Wadleigh v. Janvrin, 41 N. H. 503. 7 7 Ewell, Fixt 33. See, also, Wadleigh v. Janvrin, 41 N. H. 503, 7« Burnside v. Twitchell, 43 N. H. 390; Farrar v. Stackpole, 6 Me. 154. 7» Voorhls v. Freeman, 2 Watts & S. 116. And see Keating Implement Co. V. Marshall Electric Light & Power Co., 74 Tex. 605, 12 S. W. 489; McFadden r. Crawford, 36 W. Va. 671, 15 S. E. 408. 80 For cases holding them realty, see Farmers' Loan & Trust Co. v. Hen- drickson, 25 Barb. 484; Palmer v. Forbes, 23 111. 301; Titus v. Mabee 25 lU. 257; Farmers' Loan & Trust Co. v. St. Joseph & D. C. R. Co., 3 Dill 412, Fed. Cas. No. 4,669; Baker v. Atherton, 15 Pa. Co. Ct R. 471. § 5) WHAT FIXTURES REMOVABLE. 16 personalty," and there are constitutional provisions to this effect in some states.*' Adaptation for Use with the Bealty, Another circumstance showing the intention with which a chat- tel is annexed is its adaptation for use with the realty.** Some cases even regard this as a decisive test.** The principal appli- cation of the rule is to machinery, engines, and boilers in mills and factories, without which the business could not be carried on.*= The rule is not, however, extended to loose, movable machinery, no matter how complete its adaptation.*® But such things as du- plicate rolls in an iron rolling mill have been held real fixtures, because of their adaptation for use with the mill.*^ The same has been held of pans in salt works,** and of shelves, drawers, and 81 See Williamson v. Railway Co., 25 N. J. Eq, 13; Stevens v. Railway Co., 31 Barb. 590; Beardsley v. Bank, 31 Barb. 619; Hoyle ^. Railway Co., 54 N. Y. 314; Chicago «& N. W. Ry. v. Ft. Howard, 21 Wis. 45; Coe v. Rail- way Co., 10 Ohio St. 372; Midland Ry. Co. v. State, 11 Ind. App. 433, 88 N. E. 57; Hoyle v. Railway Co., 54 N. Y. 314. 8s 1 Stim. Am. St. Law, § 468. But there are provisions to the contrary in other states. Id. § 2100. 8 8 Burnside v. Twitchell, 43 N. H. 394; Murdock v. Gifford, 18 N. Y. 28; Smith Paper Co. v. Servin, 130 Mass. 511; Ferris v. Quinby, 41 Mich. 202, 2 N. W. 9; Curran v. Smith, 37 111. App. 69; Wade v. Brewing Co., 10 Wash. 284, 38 Pac. 1009; Parsons v. Copeland, 38 Me. 537. 84 Green v. Phillips, 26 Grat. 752; Morris' Appeal, 88 Pa. St. 368; Huston V. Clark, 162 Pa. St. 435, 29 Atl. 866, 868; Shelton v. Ficklin, 32 Grat 727; Brennan v. Whitaker, 15 Ohio St. 446; Parsons v. Copeland, 38 Me. 537; Huston V. Clark, 3 Pa. Dist. R. 2. 8B Walker v. Sherman, 20 Wend. 636; Winslow v. Insurance Co., 4 Mete. (Mass.) 306; Voorhees v. McGinnis, 48 N. Y. 278; Christian v. Dripps, 28 Pa. St. 271; Hill v. Hill, 43 Pa. St. 521; Laflin v. Griffiths, 35 Barb. 58; Mc- Connell v. Blood, 123 Mass. 47; Winslow v. Insurance Co., 4 Mete. (Mass.) 306; Curran v. Smith, 37 111. App. 69; Keeler v. Keeler, 31 N. J. Eq. 181; Rice V. Adams, 4 Harr. (Del.) 332; Trull v. Fuller, 28 Me. 545; Davenport V. Shants, 43 Vt. 546; Case Manuf'g Co. v. Garven, 45 Ohio St. 289. 13 N. E. 493; Citizens' Bank v. Knapp, 22 La, Ann. 117. 86 McKim V. Mason, 3 Md. Ch. 186; Cherry v. Arthur, 5 Wash. St. 787, 32 Pac. 744. See Burnside v. Twitchell, 43 N. H. 390. 87 Voorhis v. Freeman, 2 Watts & S. 116; Pyle v. Pennock, 2 Watts & S. 3190. •8 Lawton v. Salmon, 1 H. BL 259, note. 16 WHAT IS REAL PROPERTY. (Ch. 1 counters in a retail store." The test of adaptability has also been api)lied to the rolling stock of railroads, making such fixtures real- Nature of the Fixtures — Trads Fixtures. A valuable aid in determining the intention with which an an- aexation is made is found in the nature of the thing itself. It is iiot to be presumed that one engaged in trade or manufacture will attach valuable chattels to the realty, if his interest is of limited or uncertain duration, and intend that the things so annexed shall remain part of the realty. Annexations of this kind are called "trade fixtures," and their removal is permitted with considerable freedom, — in fact, is the rule rather than the exception. Show cases,"^ counters and shelves,®^ engines,"* boilers,"* machinery,'" tanks in a distillery," and even buildings '^ have been held re- movable as trade fixtures. Within the principle governing trade fixtures come also certain mixed cases where the annexation is 8 9 Tabor v. Robinson, 36 Barb. 483. But see, as to an ice chest, Park v. Baker, 7 Allen, 78. 8 Farmers' Loan & Trust Co. v. Hendrickson, 25 Bai-b. 484. And see cases cited ante, note 80. «>i McCall V. Walter, 71 Ga. 287. 9 2 Guthrie v. Jones, 108 Mass. 191. But see O'Brien v. Kusterer, 27 Mich. 289. »« Cook v. Transportation Co., 1 Denio (N. Y.) 91; Lemar v. Miles, 4 Watts, 330; Robertson v. Corsett, 89 ilich. 777; Crane v. Brigham. 11 N. J. Eq. 29. 9* Cooper V. Johnson, 143 Mass. 108, 9 N. E. 33; Conrad v. Mining Co., 54 Mich. 249, 20 N. W. 39; Merritt v. Judd. 14 Cal. 60: Kelsey v. Durkee, 33 Barb. 410; Hayes v. Mining Co., 2 Colo. 273. 96 Holbrook v. Chamberlain, 110 Mass. 155; Moore v. Smith, 24 111. 512. 96 Chidley v. Churchwardens of West Ham, 32 Law T. (N. S.) 486. So vats of a soap boiler, but not partitions, etc., which were put up to com- plete the house, may be taken on execution. Poole's Case, 1 Salk. 3G8. 9 7 Beers v. St John, 16 Conn. 322; Walton v. Wray, 54 Iowa, 531, 6 N, W. 742; Kissam v. Barclay, 17 Abb. Prac. 360; Macdonough v. Starbird, 103 Oal. 15, 38 I'ac. 510; West N. Car, Ry. v. Deal, 90 N. C. 110; Security Loan & Trust Co. V. Willamette Steam Mills Lumbering «& Manuf'g Co., 99 Cal. 636, 34 Pac. 321. But buildings, though erected solely for purposes of trade, may be of so substantial a character that they are irremovable. White- head v. Bennett, 27 Law J. Ch. 474. And cf. Felcher v. McMillan, 103 Mich. 494, 61 N. W. 791. § 5) WHAT FIXTURES REMOVABLE. 17 made partly for purposes of trade and partly to secnre the enjoy- ment of the demised estate, as in the case of engines erected in a colliery ®* or brickyard, or trees set out in a nursery; •" or it may be that the fixtures are partly for domestic use and convenience and partly for purposes of trade.^*' Same — Agricultural Fixtv/res. Agricultural fixtures are, as the name shows, those which are used in farming, and consist principally of bams, sheds,^**^ and farm machinery, such as cotton gins.^"* In England agricultural fixtures are for the most pirt irremovable,*"** but the rule is otherwise in many of the United States,*"* though it is not as liberal as in the case of trade fixtures.*"'' Manure made on a farm becomes part of the realty, and cannot be lawfully treated as personalty by one not the owner of the fee,*°" except when it is made from material not obtained on the premises, as in the case of a livery stable.*"^ Manure passes with • 8 Lawton v. Lawton, 3 Atk. 12. • » King V. Wilcomb, 7 Barb. 263; Miller v. BaJier. 1 Mete. (Mass.) 27. 100 Van Ness v. Pacard, 2 Pet. 137, held that a dwelling house erected by a dairyman and used as accessory to that business was removable. See, also. Wall T. Hinds, 4 Gray, 256; Oapehart v. Foster (Minn.) 63 N. W. 257. 101 Elwes V. Maw, 3 East, 38. 10 2 McJunkin v. Dupree, 44 Tex. 500. But see Bond v. Ooke, 71 N. C. 97. 108 See Elwes v. Maw, 3 East, 38, where an agricultural tenant erected Beyeral outbuildings of brick and mortar and let them into the ground, he was not permitted to remove them. 104 Wing V. Gray, 36 Vt 261; Harkness y. Sears, 26 Ala. 493; Dubois v. Kelly, 10 Barb. 496; Holmes v. Tremper, 20 J onus. 29. 100 Tyler, Fixt. 271; Perkins v. Swank, 43 Miss. 349; Leland v. Gassett, 17 Vt 403. 106 Ferry v, Carr, 44 N. H. 118; Hill v. De Rochemont, 48 N. H. 87; Dan- iels v. Pond, 21 Pick. 367; Middlebrook v, Corwin, 15 Wend. 169. Manure In a heap Is personalty, but when scattered upon the ground it becomes part of the realty. Yearworth v. Pierce, Aleyn, 31; Ruckman v. Outwater, 28 N. J. Law, 581; Fay v. Muzzey, 13 Gray, 53; Collier v. Jenks (R. I.) 32 AtL 208. And see Lassell t. Reed, 6 GreenL (Me.) 222. It has been held that manure may be taken on execution against a tenant at will without Incurring liability to the landlord. Staples v. Emery, 7 Greenl. (Me.) 201. i«T Carroll v. Newton, 17 How. Prac. 189; Plumer v. Plumer, 30 N. H. 668; Gallagher v. Shipley, 24 Md. 418. So manure made after the sale of a BEAI. PROP. — ^ 18 WHAT IS REAL PROPERTY. (Ch. 1 the freehold to a vendee of the land."" It cannot be taken on execution against the owner of the fee unless he has made it per- sonal property by being severed.^*" Same — DoiTiestic Fixtv/res. Certain annexations may be removed as domestic fixtures, which comprise such things as stoves,'" wash tubs fastened to the house,''' gas fixtures,"" chimney-pieces,"* marble shelves,"* and sheds.'" In the annexation of domestic fixtures, it is held that there is a stronger presumption of an intention to make them per- manent additions to the realty than with either trade or agricul- tural fixtures, and consequently less freedom of removal.'" farm, where the vendor retains possession during the winter, but carries on no farming opei-ations, may be sold by him. Needham v. Allison, 24 N. H. 855. But see Lassell v. Reed, 6 Greenl. (Me.) 222. Cf. Lewis v. Jones, 17 Pa. St. 262. 108 Goodrich v. Jones, 2 Hill (N. Y.) 142; Daniels v. Pond, 21 Pick. (Mass.) 8G7; Kittredge v. Woods, 3 N. H. 503. Contra, Ruckman v. Cutwater, 28 N. J. Law, 581. It may be reserved by a separate agreement. Strong v. Doyle, 110 Mass. 92. 109 Sawyer v. Twiss, 26 N. H. 845. 110 Towne v. Fiske, 127 Mass. 125; Gaffleld v. Hapgood, 17 Pick. 192. Grates. Aldine Manuf'g Co. v. Barnard, 84 Mich. 632, 48 N. W. 280; Gaf- fleld V. Hapgood, 17 Pick. 192. And steam valves and radiators. National Bank v. North, 160 Pa. St. 303, 28 Atl. 694. 111 Wall V. Hinds, 4 Gray, 256. See, also, Kirchman v. Lapp (Super. Ct.) 19 N. Y. Supp. 831. 112 Vaughen v. Haldeman, 33 Pa, St 522; Kirchman v. Lapp (Super. Ct) 19 N. Y. Supp. 831; Manning v. Ogden, 70 Hun, 893, 24 N. Y. Supp. 70. Contra, Johnson's Ex'r v, Wiseman's Ex'r, 4 Mete. (Ky.) 357. 118 Winn V. Ingllby, 5 Barn. & Aid. 625. But see Spinney v. Barbe, 43 111. A pp. 585. So pictures and glasses put up instead of wainscot were given to the heir. Cave v. Cave, 2 Vern. 508. And see D'Eyncourt v. Gregory, L. R. 8 Eq. 382; Cahn v. Hewsey, 8 Misc. Rep. 384, 29 N, Y. Supp. 1107. 11* Weston V. Weston, 102 Mass. 514. And see Sweet v. Myers, 3 S. D. 824, 53 N. W. 187. 11 B Krouse v. Ross, 1 Craneh, C. C. 368, Fed. Cas. No. 7,940. ii« See Buckland v. Butterfleld, 2 Brod. & B, 54 (where a conservatory and pinery, erected for ornament and attached to the dwelling house, were held part of the realty); Jenkins v. Gething, 2 Johns. & H. 520; State v. Elliot 11 N. H. 540. But In Grymes v. Boweren, 6 Bing. 437, a tenant was permitted to remove a pump erected for domestic use, though quite firmly annexed to the freehold. § 5) WHAT FIXTURES EEMOVABLB. 19 Part/y Making the Annexation. The most important consideration of all in determining the proba- ble intention with which an annexation is made is the relation of the person making the annexation to the land and the duration of his interest in it. The parties between whom the question arises may be put into three classes, as follows: (1) Lessor against lessee; (2) reversioner or remainder-man against tenant for life or in tail; (3) heir against personal representative of an owner in fee simple, vendee against vendor, and mortgagee against mortgagor. Any other persons between whom the question arises may easily be shown to stand in the same relation to each other as those in one of these three classes.^" It is obvious that one having only a short term of years in certain land will be less likely to make erec- tions thereon with the intention of having them become permanent than if his interest was that of an owner in fee simple. Therefore a tenant is accorded considerable freedom in removing fixtures, and the tendency of the modern cases seems to be towards a great- er liberality in his favor, because the presumption is very strong that he made the annexation in order to secure more complete en- joyment during his term, and not with the intention of benefiting his landlord.^" Persons having life estates are in many cases tenants in dower or by curtesy, and therefore often closely related to the one entitled to the next estate. It is accordingly not diffi- 117 For other relations, equivalent to the fii-st class, see Raymond v. White, 7 Cow. 819; Heffner v. Lewis, 73 Pa. St. 302; Havens v. Electiic Light Co. (Sup.) 17 N. Y, Supp. 580. And for others, equivalent to the third class, see Parsons v. Copeland, 38 Me. 537; Bigler v. Bank, 26 Hun, 520; Cresson v. Stout, 17 Johns. 116; Gale v. Ward, 14 Mass. 352; Farrar v. Chauffetete, 5 Denio (N. Y.) 527; Goddard v. Chase, 7 Mass. 432; Tudor Iron Works v. Hitt, 49 Mo. App. 472. 118 Youngblood v. Eubank, 68 Ga. 630; Thomas v. Orout, 5 Bush (Ky.) 37; Ambs V. Hill, 10 Mo. App. 108; Osgood v. Howard, 6 Greenl. (Me.) 452. Cf. Deane v. Hutchinson, 40 N. J. Eq. 83, 2 Atl. 292. For cases of trade fix- tures, see Raymond v. White, 7 Cow. 319; Andrews v. Button Co., 132 N. Y. 348, 30 N. E. 831; Conrad v. Mining Co., 54 Mich. 249, 20 N. W. 39; Hayes v. Mining Co., 2 Colo. 273; Powell v. Bergner, 47 111. App. 33; Berger v. Hoemer, 36 111. App. 360; Lang v. Cox, 40 Ind. 142; Western N. C. Ry. Co. v. Deal, 90 N. C. 110; Cubbins v. Ayres, 4 Lea (Tenn.) 329; Brown v. Power Co., 55 Fed. 229. Domestic fixtures. Jenkins v. Gething, 2 Johns. & H. 520; Gaf- field V. Hapgood, 17 Pick. 192. 20 WHAT 18 REAL PROPERTY. (Ch, 1 cult to suppose an intention to mal^e permanent annexations for the benelit of the ostate.^^^ And the same reasons hold good in the case of a tenant in tail. The assignees of life tenants and of tenants in hiil are in the same situation, and are therefore ac- corded no greater freedom in removing fixtures.^^** On the same principle, when a question of fixtures arises between the heir and personal representative of an owner in fee, the presumptions are all in favor of the former,^*^ and the same is true between vendee and vendor,^" or mortgagee and mortgagor,^^^ because a tenant 119 D'Eyncourt v. Gregorj', L. R. 3 Eq. 382; Gannon v. Hare, 1 Tenn. Cb. 22; Cave v. Cave, 2 Vem. 508; Lawton v. Salmon, 1 H. Bl. 2G0, note; Mc- Cullough V. Irvine's Ex'rs, 13 Pa. St 438; Gledden v. Bennett, 43 N. H. 306; Domby v. Farse, 53 Ark. 526, 14 S. W. 809; Lord Ellenborough, C. J., in Elwes V. Maw, 3 East, 51. Some erections are, however, held removable. Lawton v. Lawton, 3 Atk. 12; Dudley v. Warde, Amb. 113; Overman v. Sasser, 107 N. C. 432, 12 S. E. 64; Clemence v Steere, 1 R. I. 272. So far as a tenant for life is individually concerned, "his estate lasts forever. It is only terminated by his death. He can have no personal interest in the removal of fixtures at the end of his term. The only interest he can possi- bly take in the matter is the welfare of his heirs. Whatever addition he makes to the permanent betterment of the estate, he will be permitted to enjoy all his life, and therefore there is the same reason for finding that he Intended such betterment to last and continue through his term as there is in case of the owner in fee." Tbomp, Fixt. & Easem. 31. 120 White V. Amdt, 1 Whart. 91; Haflick v. Stober, 11 Ohio St. 482; Demby T. Parse, 53 Ark. 526, 14 S. W. 899; Elam v. Parkhill, 60 Tex. 581. 121 Heniy's Case, Y. B. 20 Hen. VII. p. 13, pi.. 24; Anon., Y. B. 21 Hen. VII. p. 26, pi, 4; Lawton v. Salmon, 1 H. Bl. 259, note; Fisher v. Dixon, 12 Clark & F. 312; Bain v. Brand, 1 App. Gas. 762; Gibbs v. Estey, 15 Gray (JLiss.) 587; Stillman v. Flenniken, 58 Iowa, 450, 10 N. W. 842; Kin- sell V. Billings, 35 Iowa, 154; McDavid v. Wood, 5 Heisk. (Tenn.) 95. So of an annexation by a tenant In common. Baldwin v. Breed, 16 Conn. 60. Contra, Squier v. Mayer, Freem. Oh. 249. But see, as to trade fixtures, Mur- dock V. Gifford, 18 N. Y. 28. 12 2 Noble V. Bosworth, 19 Pick. (Mass.) 314; Tabor v. Robinson, 36 Barb. 483; Voorheea v. McGinnis, 48 N. Y. 278; Miller v. Plumb, 6 Cow. 665; Leonard v, Clough, 133 N. Y. 292, 31 N. E. 93; Coher v. Kyler, 27 Mo. 122; Hutchins v. Masterson, 46 Tex. 551; Pea v. Pea, 35 Ind. 387. But see Leonard v. Clough, 59 Hun, 627, 14 N. Y. Supp. 339. So one making erec- tions on land which he holds under contract to purchase cannot remove them If he falls to carry out the contract McLaughlin v. Nash, 14 Allen, Its Kee note 123 on following page. I 5) WHAT FIXTURES REMOVABLE. 21 in fee is not likely to make annexations with any intention of re- moving them, but rather for the benefit of his property. It is not true, however, that all chattels pass with the realty, although annexed by one owning the fee. For instance, carpets, pictures, and gas fixtures retain their character as personal property.^ 2* When chattels are annexed to the realty by a stranger without authority they become the property of the owner of the soil.^^" But, if put there in good faith, the enhanced value of the land may be set off in an action for rent.^^e r^^^ game rules apply to trees 136; Hinkley v. Black, 70 Me. 473; Ogden v. Stock, 34 lU. 522; Michigan Mut. Life Ins. Co. v. Cronk, 93 Micli. 49, 52 N. W. 1035; Miller v. Wadding- ham (Cal.) 25 Pac. 6SS; Hemenway v. Cutler, 51 Me. 407. 123 Winslow V. Insurance Co., 4 Mete. (Mass.) 306; Ex parte Astbury, 4 Ch. App. 630; Climie v. Wood, L. R. 4 Exch. 328; Clary v. Owen, 15 Gray (Mass.) 522; Brennan v. Whitaker, 15 Ohio St. 446; Davenport v. Shants, 43 Vt. 546; Burnside v. Twitchell, 43 N. H. 390; Tifft v. Horton, 53 N. Y. 377; McConnell v. Blood, 123 Mass. 47; Rogers v. Brokaw, 25 N. J. Eq. 496; Woodham v. Bank, 48 Minn. 67, 50 N. W. 1015. As to machinery annexed for trade purposes, see Helm v. Gilroy, 20 Or. 517, 26 Pac. 851; Hathaway v. Insurance Co., 58 Hun, 602, 11 N. Y. Supp. 413; Calumet Iron & Steel Co. V. Lathrop, 36 111. App. 249; Phelan v. Boyd (Tex. Sup.) 14 S. W. 290. But for trade fixtures held removable, see Rogers v. Brokaw, 25 N. J. Eq. 496;. Johnson v. Mosher, 82 Iowa, 29, 47 N. W. 996. Cf. Padgett v. Cleveland,. 83 S. C. 339, 11 S. E. 1069. The mortgagee is entitled to fixtures erected after the execution of the mortgage as against an assignee of the mortgagor. Walmsley v. Milne, 7 C. B. (N. S.) 115; Holland v. Hodgson, L. R. 7 C. P. 828; Winslow v. Insurance Co., 4 Mete. (Mass.) 306; Cooper v. Harvey, 62 Hun, 618, 16 N. Y. Supp. 660; Snedeker v. Warring, 12 N. Y. 170; Kloess V. Katt, 40 111. App. 99; Seedhouse v. Broward, 34 Fla. 509, 16 South. 425; Sands v. Pfeiffer, 10 Cal. 258. 124 jarechi v. Society, 79 Pa. St. 403; McKeage v. Insurance Co., 81 N. Y. 38; Towne v. Fiske, 127 Mass. 125. Cf., however. Central Trust & Safe Deposit Co. V. Cincinnati Grand Hotel Co., 26 Wkly. Law Bui. 149. 125 Madigan v. McCarthy, 108 Mass. 376; Inhabitants of First Parish in Sudbury v. Jones, 8 Cush. 184; Huebschmann v. McHenry, 29 Wis. 655. Otherwise, when the owner consents. Fuller v. Tabor. 39 Me. 519; Gregg V. Railway Co., 48 Mo. App. 494; Merchrnts' Nat Bank v Stanton (Minn.) 56 N. W. 821. But see Histe v. Buckley, 8 Ohlc Cir. Ct R. 470. 128 Green v. Biddle, 8 Wheat. 1; Hylton v. Brown, 2 Wash. C. C. 165, Fed. Cas. No. 6,983; Jackson v. Loomis, 4 Cow. 168. And see Oregon Railway & Nav. Co. v. Hosier, 14 Or. 519, 13 Pac. 300. 22 WHAT IS REAL PROPERTY. (Ch. 1 spt out and crops planted by one not the owner."^ It is seen from the foregoing that the presumption of chattel character of a fixture is stronger in the first than in the second class, and in the second than in the third;'" and consequently cases holding fix- tures removable against a mortgagee or vendee in fee are author- ity to the same effect against a remainder-man or a lessor, and so in the other classes; and cases holding fixtures irremovable against a lessee are authority for holding them irremovable against any other person. 6. TIME OF REMOVAL— Where the tenant's interest is of definite duration, the removal must be before its termination. Where the interest is of indefinite duration, the removal must be within a reasonable time alter its termination. Where the interest of the one making the annexation is of definite duration, the right to remove fixtures must be exercised before the. termination of that interest or an abandonment of the right will be presumed;^" and in cases of an interest of uncer- tain duration, the removal must be within a reasonable time after the interest comes to an end."" These rules do not apply when 127 Simpkins v. Rogers, 15 111. 397; Mitchell v. Billingsley, 17 Ala. 391; Boyer v. Williams, 5 Mo. 335. 128 Van Ness v. Pacard, 2 Pet. 137. 129 Sampson v. <:k)tton Mills, 64 Fed. 939; White v. Arndt, 1 Whart. (Pa.) 91; Mackintosh v. Trotter, 3 Mees. & W. 184; Gibson v. Railway Co., 32 Law J. Ch. 337; Saint v. Pilley, L. R. 10 Exch. 137; Haflick v. Stober, 11 Ohio St. 482; Friedlander v. Ryder, 30 Neb. 783, 47 N. W. 83; Davis v. BufEum, 51 Me. IGO; Josslyn v. McCabe, 40 Wis. 591, 1 N. W. 174; Thomas V. Grout, 5 Bush (Ky.) 37. Cf. Dubois v. Kelly, 10 Barb. 496. If a lessee mortgages tenant's fixtures, and afterwards surrenders his lease, the mort- gagee has a right to enter and sever them. London & Westminster Loan & Discount Ck). v. Drake, 6 C. B. (N. S.) 798. See, also. McKenz^e v. City of Lexington, 4 Dana (Ky.) 130. 180 Where a landlord enters on his tenant for breach of condition, and thereby puts an end to the tenancy, the right to remove fixtures is gone. Pugh v. Arton, L. R. 8 Eq. 626; Weeton v. Woodcock, 7 Mees. & W. 14; Ex parte Brook, 10 Ch. Div. 100; Morey v. Hoyt. 62 Conn. 542, 26 Atl. 127. Ct Dunman v. Railway Co. (Tex. Civ. App.) 26 S. W. 304; Antoni v. Bel- Yx EQUITABLE CONVERSION. the removal of the fixtures is wrongfully prevented by injunction or otherwise."^ And a tenant holding over with the consent of the landlord does not lose his right of removal."^ Fixtures wrongfully removed may bo recovered by the person entitled to them in the hands of any one -« not a bona fide purchaser."* SAME— EQUITABLE CONVERSION. 7. Equitable conversion is a notional change in the char- acter of property, by means of which (a) Personal property is made real and (b) Real property is made personal. "Money directed to be employed in the purchase of land,"' and land directed to be sold and turned into money,"« are to be con- knap 102 Mass. 193; Cooper v. Johnson. 143 Mass. 108, 9 N. E. 33; Berger n^erner. 36 111. App. 360; Sullivan v. Garberry. 67 Me. 531; Turner v. Kennedy, 57 Minn. 104, 58 N. W. 823; Martin v. Roe, 7 El. & Bl. 237. X81 Bircher v. Parker, 40 Mo. 118. x.» Lewis V. Pier Co., 125 N. Y. 341, 26 M. E. 301; Kerrey v. Burnett, 88 N J Law 457; Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554; Brown v' Power Co! 55 Fed 229. Cf. Free v. Stuart, 39 Neb. 220, 57 N. W. 991; Thorn V. Sutherland, 123 N. Y. 236. 25 N. E. 362. But by accepting a new lease, with different terms and covenants, he may lose the right Watnss v. Bank 124 Mass. 571; Loughran v. Ross, 45 N. Y. 792; Talbot v Cruger 81 Hun 504 30 N. Y. Supp. 1011; Mclver v. Estabrook, 134 Mass. 550; Wright r. M^cdonell (Tex. Civ. App.) 27 S. W. 1024; Merritt v. Judd, 14 Cal. 60. But see KeiT v. Kingsbury, 39 Mich. 150. 183 ogden V. Stock, 34 111. 522; Central Branch R. Co. v. Fntz, 20 Kan. 4o0 Huebschmann v. McHenry, 29 Wis. 655; Sands v. Pfeiffer, 10 Cal. 259. CL Salter v. Sample. 71 111. 430; Hartwell v. Kelly. 117 Mass. 235. But see 2 Jones, Real Prop. § 1760. 184 Peirce v. Goddard, 22 Pick. 559. x»B Kettleby v. Atwood, 1 Vern. 298; on rehearing. Id. 471; Chichester y. Bicherstaff 2 Vern. 295; Sweetapple v. Blndon, Id. 626; Scudmore v. Scud- more, Prec. Ch. 544; Craig v. Leslie, 3 Wheat. 563- in re Becker's Estate. 150 Pa. St 524, 24 Atl. 687. t t? is 180 Fletcher v. Ashbumer. 1 Brown, Ch. 497; Steed v. Preece L R 18 Eq 192; Evans v. Kingsberry, 2 Rand. (Va.) 120; Turner v. Davis, 41 Ark 270; Fluke v. Fluke. 16 N. J. Eq. 478; Roy v. Monroe. 47 N. J. Eq. 3o6. 20 24 WHAT IS REAL PROPERTY. (Ch. 1 sidered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given, — whether by will,^'^ by way of contract, marriage articles, settlement, or otherwise;^'" and whether the money is actually deposited or only covenanted to be paid; whether the land is actually conveyed or only agreed to be conveyed." ^" This sub- ject properly belongs however to works on equity/*" 8. SAME— PERSONAL INTERESTS IN LAND. There are also certain interests in land which are treated as personal property. For instance, chattels real,"^ which are es- tates less than freehold, or leaseholds.^*' Long terms of years are, however, in some states made real property by statute.^*^ These and other personal interests in land, such as a mortgage debt, will be treated of in other connections. Corporate shares are not real property, even though the property which constitutes the capital of the corporation is realty. The ownership of this Atl. 481; Crane v. Bolles, 49 N. J. Eq. 373, 24 Atl. 237; In re Blauvelt (Sup.) 15 N. Y. Supp. 586; Fraser v. Trustees, 124 N. Y. 479, 26 N. E. 1034; Bolton V. Myers, 146 N. Y, 257, 40 N. E. 737. But see In re Machemer's Estate, 140 Pa. St. 544, 21 Atl. 441. 187 Fletcher v. Ashburner, 1 Brown, Ch. 497; Craig v. Leslie, 3 Wheat. 563; Jones' Ex'rs v. Jones, 13 N. J. Eq. 236; Hyman v. Devereux, 63 N. C. 624; MagTuder v. Peter, 11 Gill & J. 217; Massey v. Modawell, 73 Ala. 421; Dodge V. \Yilliams, 40 Wis. 70, 1 N. W. 92, and 50 N. W. 1103; Gould v. Orphan Asy- lum, 46 Wis. 106, 50 N, W. 422; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585; Davenport v, Kirkland, 156 111. 169, 40 N. E. 304. The direction must be positive. Darlington v. Darlington, 160 Pa. St 65, 28 Atl. 503; In re lugersoirs Estate, 167 Pa. St. 536, 31 Atl. 858, 859. 188 In re Hirst's Estate, 147 Pa. St. 319, 23 Atl. 455; Dobson's Estate. 11 Phlla. 81; Evans v. Kingsberry, 2 Hand. (Va.) 120; Masterson v. PuUen, 62 Ala. 145; Turner v. Davis, 41 Ark. 270; Hunter v. Anderson, 152 Pa. St. 386, 25 Atl. 538; Williams v. Haddock, 145 N. Y. 144, 39 N. E. 825. 139 Sewell, J., in Fletcher v. Ashburner, 1 Brown, Ch. 499. 1*0 Fetter, Eq. p. 67; Bisp. Eq. (4th Ed.) 370; 3 Pom. Eq. (2d Ed.) p. 1765. 1*1 As to other chattels real, see Schouler, Pers. Prop. (2d Ed.) 23. 1*2 Keating v. Condon, 68 Pa. St. 75; Hellwig v. Bachman, 26 111. App. 16.^. And see post, p. 128. 148 1 stim. Am. St. Law, { 1300. § 8) PERSONAL INTERESTS IN LAND. 25 realty is in the corporation and not in the individual stockholders. Therefore their interests are personalty only.^** 1** BUgh V. Brent, 2 Younge & C. Exch. 268; South Western Ry. y. Thoma- son, 40 Ga. 408; Arnold v. Ruggles, 1 R. I. 165; Mohawk & H. R. Co. v. Clute, 4 Paige, Ch. 384; Toll Bridge Co. v. Osbom, 85 Conn. 7. But shares In a tumpilie company were held realty in Welles v. Cowles, 2 Conn. 567; and in a water company, in Drybutter v. Bartholomew, 2 P. Wms. 127. And see Price T. Price's Heirs, 6 Dana (Ky.) 107; Codman v. Winslow, 10 Mass. 140. 26 TENURE AND SEISIN. (Ch. 2 CHAPTER H. TENURE AND SEISIN. 9. Tenure. 10. Seisin. TENURE. 9. Tenure slg^nifles the holding of lands or tenements in subordination to some superior, and the terms of the holding.* The Feudal System. The feudal system, which William the Conqueror introduced into England, was a system of military government, founded on the personal allegiance of the members of the organization to the leaders, and not a government resting on the obligations of citizen- ship. Under the feudal system, the king was surrounded by a body of men pledged to his support in war. The followers of the king likewise had their own followers, bound to them in the same way. This Norman military organization established itself in Eng- land, and the English lands were granted to the followers of Wil- liam as a reward for past services and for services to be rendered in the future. That is, the lands were held on the condition that the grantees should perform the military and other obligations owed by them on account of their position as members of the feudal organization, and such additional obligations as might be imposed in connection with the grant. It was customary for each tenant of the king to subdivide his portion, distributing the greater part of it among subtenants on similar conditions of tenure to those which he himself was under obligation to perform to the sovereign. In this way a vast social structure was erected, with the king or prince at the apex, his immediate tenants directly be- neath him, and so on down, through the various classes of sub- tenants, until we reach the class which actually cultivated the soil. 12 Bl. Comm. 59; Co. Ldtt la. § 9) TENURE, 27 Beneath these there were the serfs or slaves, consisting chiefly of the conquered race and their descendants. This was the typical social organization of the Middle Ages. Thus the feudal system of property in land, as established in England, was based on the theory that all land held by a subject was derived originally by grant from the crown, as sovereign lord or owner; that land could not be held by a subject in absolute independent ownership, as personal property is owned, for such was the exclusive prerogative of the king, but that all land was held under obligation of duties and services, imposed either by force of law or by express terms of the grant, whereby a relation was constituted and permanently maintained, between the tenant and the crown, called the "tenure" of the land, characterized by the quality of the duties and services upon which the land was held. In like manner the tenants of the crown might grant out parts of their land to subtenants upon similar terms of rendering services, thereby creating a subtenure or relation of tenure be- tween themselves, as mesne or intermediate lords, and their gran- tees, as tenants, but without affecting the ultimate tenure under the crown as lord paramount.^ A tenure without the Interposi- tion of any mesne lord was called a "tenure in capite" or "tenure in chief." * The estate of the tenant in the land was called a "feud," "fief," or "fee." The infeudation or grant was effected by the ceremony of feoffment, or delivery of the land by the lord to the tenant, to be held by him upon the terms then expressed or implied; and the tenant was thereby invested with the seisin or actual possession of the land.* Every acre of England was brought within the feudal principle, though the king did not grant all of the land, but retained part for his own use. This was called the "ancient demesne of the crown." * Kinds of Tenure. There were several kinds of tenure, dependent upon the nature of the services by which land was held. Originally most of the tenure was military, or "tenure by knight's service," One who » Co. LItt lOSa. 8 Leake, Land, 17. * 1 Pol. & M. Hist. Eng. Law, 210, 366; Dig. Hist. Real Prop. (4th Ed.) 34; 2 BL Comm. 59; Co. Lltt la. 28 TENURE AND SEISIN. (Ch. 2 held by this tenure was bound to serve as a knight for 40 days a year in the king's army, and to provide himself with the equipment necessary for such service.' Serjeanty was another form of mili- tary tenure. The services in this case consisted in certain personal services rendered to the king or lord. "Tenure by grand serjean- ty" was the term which designated the holdings of those who, In return for their lands, performed duties at the king's palace or in attendance on his person, such as to be a marshal, a chamberlain, or a butler.* There were also petty serjeanties, those who held by this tenure being bound to do acts of the same nature as in the case of grand serjeanties, but the duties were not connected with the king's person or his palace. Instances of these services are to carry his letters in a certain district, or to provide a given number of arrows or other military supplies each year.^ Most of the lands owned by the church were held in "frankalmoigne," or free alms. The only services connected with this tenure were of a spiritual kind, such as prayers for the soul of the donor.* Another kind of tenure was called "socage," or "free and common socage." Those who held in socage had to pay the lord a certain rent in the produceofthe land, or to do certain defined work for him onhis other lands, or both, as the case might be." This is to be distinguished from the agricultural work required of those who held by villein tenure. Those holding in villeinage owed the lord a given num, ber of days work each week, but what they were to do on those days the lord determined. The socage tenants, however, who owed services, owed so many days ploughing or reaping, and could not be made to do any other work. Those who held by villein tenure were for the most part serfs, or, at least, unfree men. Still, a free 6 1 Pol. & M. Hist. Eng. Law, 230; Dig. Hist Real Prop. (4th Ed.) 39, 61n, 135; 2 Bl. Ck>mm. G2; Co. Litt. 103. 9 1 Pol. & M. Hist. Eng. Law, 262; Dig. Hist. Real Prop. (4th Ed.) 39; 2 Bl. Comm. 73; Co. Lltt. 105b. T 1 Pol. & M. Hist. Eng. Law, 262; Dig. Hist. Real Prop. (4th Ed.) 49; 2 Bl. Comm. 74, 81; Co. Lltt. 108a. « 1 Pol. & M. Hist. Eng. Law, 218; Dig. Hist. Real Prop. (4th Ed.) 38; 2 Bl. Comm. 101; Co. Litt. 93b. 9 1 Pol. & M. Hist. Eng. Law, 271; Dig. Hist. Real Prop. (4th Ed.) 46; 2 Bl. Comm. 78; Co. Litt. 85a, § 9) TENURE, 29 man might hold by this tenure and not lose his freedom.** It must not be thought that the men holding by the various kinds of tenure which have been enumerated constituted distinct classes, because it was often the case that one man held land by a number of different tenures, — for instance, one parcel by knight's service and another parcel by socage.^* As time went on, the various kinds of services arising from tenure came to be regarded as due from the land, and not from the person holding the land. Thus, so many acres were bound to furnish one knight, or owed certain work to the lord; that is, tenure took on a real, rather than a personal, character.^* A further development occurred when the various services were commuted for money payments, called "scu- tage." These finally took the form of a rent.^' In later times socage tenures gained the ascendency, and military tenures were finally abolished in England.^* Tenure in villeinage became copy- hold tenure, but this form never existed in this country.*' Incidents of Tenure. There were certain incidents, connected with military and with socage tenure, which constituted their chief importance, and con- tinued to exist at a time when the services due on account of the tenure had fallen into disuse or had become unimportant. These incidents were aid, relief, wardship, and marriage. Aids were sums of money which the tenant was bound to pay the lord to secure the lord's release from prison, to help him knight his son, and to provide a marriage portion for his eldest daughter.*® A relief was a sum which an heir must pay the lord on succeeding to the inheritance. In the case of socage tenements, this sum was 10 1 Pol. & M. Hist Eng, Law, 337; Dig. Hist Real Prop. (4tli Ed.) 51; 2 Bl. Comm. 90; Co. Lltt 116a. 11 1 Pol. & M. Hist Eng, Law, 276. n 1 Pol. & M. Hist. Eng. Law, 235. i» 1 Pol. & M. Hist. Eng. Law, 245; Dig. Hist Real Prop. (4tb EJd.) 129; 2 Bl. Comm. 74. 1* Dig. Hist Real Prop. (4th Ed.) 392. 16 1 Pol. & M. Hist Eng. Law, 351; Dig. Hist Real Prop. (4th Ed.) 151; 2 BL Comm. 90; Co. Litt. 57b. i« 1 Pol. & M. Hist. Eng. Law, 330; Dig. Hist Real Prop. (4th Ed.) 41. 48, 129; 2 BL Comm. 63, 87. 30 TENUBE AND SKEIN. (Ch. 2' fixed at one year's rent." When an heir holding by knight's serv- ice was under age, the lord possessed the right of wardship, and under this right he had the custody of the infant's person and of his lands, and the latter was a source of no small profit in the case of rich wards, because the lord was not required to account for the rents and profits of the estate." But the wardship of an heir who held in socage belonged to the nearest relative to whom the inheritance of the ward's lands could not descend, and the guardian was accountable to the ward for the profits received by him.^' To wardship was added the power to dispose of the ward in marriage, or, at least, to propose a match for the ward. If the ward refused the match, the guardian could claim a fine, as he could, also, if the ward married without his consent.*' Same — Escheat cmd Forfeihere. On failure of the heirs of the tenant, or for his felony, the land escheated to the lord, and it was liable to forfeiture to the king for treason.*^ Stat/uie of Quia Em/ptores. Prior to 1289 a tenant of lands could grant a part of them, to be held under him by feudal services. His tenant, thus created, could do the same. This process was called "subinfeudation." In the year mentioned the statute of quia emptores " was passed. It prohibited subinfeudation, and enacted that the grantee should hold immediately of the superior lord and not of the grantor. After this statnte a conveyance passed all the grantor's interest to the grantee, and the grantor dropped out of the feudal chain between the tenant in possession of the land and the lord para- iT 1 Pol. & M. Hist. Eng. Law, 288; Dig. Hist Real Prop. (4th EM.) 40, 48, SO, 120; 2 BL Comm, 65, 87; Co. Lltt. 7Ga, S3a. IS 1 PoL & M. Hist Eng. Law, 299; Dig. Hist Real Prop. (4tli Ed.) 41. 86, 136; 2 BL Comm. 67. i» 1 PoL & M. Hist Eng, Law, 303; Dig. Hist Real Prop. (4tli Ed.) 48; 2 BL Comm. 87. 10 1 Pol. & SL Hist Eng. Law, 299; Dig. Hist Real Prop. 41, 90, 123; 2 BL Comm. 70. Socage tenure gave no right to the ward's marriage. 2 BL Comm. 88; Dig. Hist Real Prop. (4th Ed.) 48. 21 1 PoL & M. Hist. Eng. Law, 332; 2 Pol. & M. Hist Eng. Law, 22, 464, 498; Dig. Hist Real Prop. (4th Ed.) 43, 61, 91, 422; 2 BL Comm. 72, 89. «2 IS Edw. L C L § 10) SEISIN. 31 mount, and had no farther connection with the land granted. No new tenure in fee could be created." This statute is in force in all the United States where tenure still exists," except Pennsylvania and South Carolina." Tenure in the United States. The feudal system never took root in the United States, and what tenures there were in the early holdings of land were by free and common socage, and not subject to the burdensome incidents of tenure which have been enumerated.** In many states feudal tenures are abolished.*^ Lands are in these states allodial; that is, held in absolute ownership, the same as personal property.*' In other states where tenure still exists, lands cannot be holden in fee of another person, because of the statute of quia emptores, as was seen in the last paragraph. Other forms of tenure which do exist to-day, such as the tenure between landlord and tenant, or between tenant for life and reversioner or remainder-man, will be considered hereafter.** SEISIN. 10. Seisin is the possession of land with an intent on the part of the one holding it to claim a freehold inter- est.*' It may be either; (a) Seisin in fact, or (b) Seisin in law. M Gray, Perp. 12; Dig. Hist Real Prvp, (4th Ed.) 232; Van Rensselaer v. r>ATinisnTi, 35 N. Y. 393. Of. Van Rensselaer v. Smith, 27 Barb. 104. «4 Gray, Perp. 16; Denio, J., in Van Rensselaer v. Hays, 19 N, Y. 68, 75. 25 Gray, Perp. pp. 17, 18; Ingersoll v. Sergeant, 1 Whart. 337. Of. Wallace T. Harmstad, 44 Pa, St 492, The charter of North Carolina permitted sub- infeudation, 29 Chisholm v. Georgia, 2 DaU. 419; Cornell v. Lamb, 2 Cow. 652; Combs T. Jackson, 2 Wend, 153; In re Desilver's Estate, 5 Rawle, 111, Cf. Martin v, Waddell, 16 Pet 367; Johnson v. Mcintosh, 8 Wheat 543. »7 1 stim. Am. St Law, §§ 400, 401, 1100-1103; Gray, Perp. 13; Matthews v. Ward, 10 Gill & J. 443, 451. 88 McLean, J., in Mayor, etc, of New Orleans v. U. S., 10 Pet 716; Cook v. Hammond, 4 Mason, 467, 478, Fed, Cas. No. 3,159; Minneapolis Mill Co. v. Tiffany, 22 Minn, 4G3. Cf. Taylor v. Porter, 4 HiU, 140; Com. v. Tewk&bury, 11 Mete (Mass.) 55; Bancroft v. City of Cambridge, 126 Ma^s. 43& 2 9 See post pp. 142, 303. 80 Towle V. Ayer, 8 N. H. 57. 32 TENURE AND SEISIN. (Ch. 2 By the early common law seisin signified the investing of a ten- ant with the legal right to his estate, and was properly used only in connection with freeholds.*^ Seisin is now often used as the equivalent of possession." Seisin in fact is actual possession. Seisin in law is constructive possession." The theory of the com- mon law is that there must always be some one seised of the free- hold. The early form of conveyance was by a transfer of the seisin.** Applications of the theory of seisin will be made in other places. «i Post, p. 34. Van Rensselaer v. Poncher, 5 Denlo (N. Y.) 35; Sneed, J., In Upchurch T. Anderson, 3 Bait (Tenn.) 411; Peters, C J., in Ford v. Gar- ner's Adm'r, 49 Ala. 603. «» See Wilde^ J., in Slater y. Eawson, 6 Mete (Mass.) 439. »« Allen, J., in Jenkins r. Faliey, 73 N. Y. 3G2; Olin, J^ m Hart r. Dean, 2 McArthur, 63. s* h'oo post, p. 403. I 12) ESTATES AS TO QUANTITY FEB BIMPLB. 33 CHAPTER m. ESTATES AS TO QUANTITY— FEB SIMPLA. 11. Estate Defined. 12. Classification of EJstatea. 13. Quantity of E.states. 4-15. Freehold— Estates of Luheritaiioai 16. Fee Simple, 17. Creation. 18. Right of User, 19. Alienation. ESTATE DEFINED. 11. The Interest wliich a person has in real property is called an "estate." The term "estate," in its technical sense, is nsed only in conne«- tion with real property. There can properly be no estates in per sonalty. "Estate" merely siarnifies the interest which the tenant has in the land he holds. This interest may be as absolute as the ownership of personalty, or it may be for a limited time, or qual- ified by conditions. Under the feudal system only the king could have absolute ownership of land, since all others held their land under him. The technical use of the word "estate" is to be dis tingnished from "estate" as meaning things owned, ^ or the ag- gregate of a man's property as an entity, — for example, a "de cedent's estate.'* CLASSIFICATION OF ESTATES. 12. Estates will be discussed: (a) As to quantity (p. 34). (b) As to quality (p. 169). (c) As to legal or equitable character (p. 251). (d) As to time of enjoyment (p. 278). (e) As to number of owners (p. 332). » See Appleton, C. J., In Deering v. Tucker, 55 Me. 284, &EAL PROP. — 3 8i ESTATES AS TO QUANTITY FEB SIMPLS. (Ch. 3 QUANTITY OF ESTATES. 13. The quantity of an estate signifies its duration- As to quantity estates are: (a) Freeholds, which are: (1) Of inheritance, comprising: I. Fee simple (p. 35). n. Fee tail (p. 42). (2) Not of inheritance, or life estates (p. 55). (b) Less than freehold, which are; (1) For years (p. 128). (2) At will (p. 1")5). (3) From year to year (p. 158). (4) At sufferance (p. 163). The quantity of an estate means almost the same thing as the length of time during which the owner of the estate is entitled to the use of the land.' For example, a life estate gives its owner an interest as long as he lives. The estate greatest in quantity is the fee simple. Quantity does not, however, mean the absolute number of years that an estate is to continue. A leasehold for 2 years is an estate of the same quantity as one for 15 years, to wit, an estate for years. FEEEHOLD— ESTATES OP INHERITANCE. 14. A freehold estate is one which may last during a life, and w^hose duration is uncertain, but is not depend- ent on the will of another.' 2 See Sedgwick, J., In Cutts v. Ckjm., 2 Mass. 284. 8 2 BL Comm. 704; Hanna, J., in Bradford v. State, 15 Ind. 353; People v. Board of Education of Grand Rapids, 38 Mich. 95; Wyatt v. Irrigation Co^ 18 Colo. 298, 33 Pac 144. For questions of freehold, as determining the Jo- risdiction of a court, see Wilson v. Dresser, 152 IIL 387, 38 N. E. 888; Van Meter v. Thomas, 153 lU. 65, 38 N. E. 1036; Hupp v. Hupp, 153 IIL 490, 39 N. E. 124; Howe v. Warren, 154 IIL 227, 40 N. E. 472; Moshier T. Reynolds, 155 nL 72, 39 N. K 621. § 16) FEE SIMPLE. 35 15. An estate of inheritance is a freehold -which, on the death of the o-wner intestate, descends to his heirs.* In some states long terms of years are by statute declared to be freeholds,"* and in others estates for the life of another • are de- clared to be estates of inheritance.'' Estates less than freehold are chattel interests in lands, and go to the personal representa- tive of the deceased owner, unless he has otherwise disposed of them by will, PEE SIMPLE. 16. A fee simple is a freehold estate in perpetuity. It is an estate limited to a man and his heirs, and is the largest possible estate in land. **The word 'fee' originally signified land holden of a superior, as distinguished from allodial land; 'fee' and 'feud' being synony- mous. But 'fee' is now employed to denote the quantity of inter- est the tenant has in land, and is confined to estates of inheritance, i. e. those which may descend to a man's heirs. When the word 'fee' is used alone, it means 'fee simple.' "* A fee simple * is a free- hold estate in perpetuity.' It may exist in incorporeal as well as in corporeal hereditaments.^" A fee simple is practically equal to absolute ownership, if, indeed, it is not so, in theory, in most of the states. Under the feudal system, no one except the sovereign held a fee simple. Grants were made to tenants to hold in de- mesne as of a fee, but this was not the absolute fee simple of * 2 BL Comm. 201. B 1 Stim. Am. St. Law, § 1310. « Post, p. 67. 7 1 Stim. Am. St Law, § 1310. * Graves, Real Prop. § 44. 8 "Fee simple" means the same as "fee simple absolnte,'* and generally "fee" alone is a suflScient designation. 2 BL Comm. 106; Ckx Lltt. lb; Clark V. Baker, 14 CaL 612, 631; Thompson, C. J., in Jackson v. Van Zandt, 12 Johns, (N. Y.) 169. 9 2 BL Comm. 106. An estate in fee simple may be subject to some condi- tion or qualification which will put an end to it, in which case it is called a base or determinable fee. See post, p. 178. 10 2 BL Comm. 106. 36 ESTATES A3 TO QUANTITY FEE SIMPLE. (Ch. 3 to-day. An interest in the land still remained in tlie g^ntor or feudal lord, represented by his rij^ht to the feudal services due from the tenant. The fee simple un<;ht well be called our normal estate. It represents the whole ownership of the land. Out of the fee simple all other estates are carved. The powers incident to estates less than fee simple are in all cases less than those of the owner of that estate. SAME— CREATION. 17. For the creation of a fee simple, (a) By deed, the w^ord "heirs" must be used, except, — EXCEPTIONS— (1) In quitclaim deeds. (2) In many states, by statute. (b) By devise, the intention of the testator governs, and no technical ^vords of limitation are necessary. In many states, by statute, a fee simple is presumed to be intended if not otherwise expressed. Oreation hy Deed. In the creation of an estate in fee simple by deed ^* there is a technical rule of the common law that the limitation, as it is called, must be to one "and his heirs"; otherwise, the grantee will take only a life estate.^^ And no other words are sufiScient, even though the meaning be the same and the intention clear.^^ In granting a fee simple to a corporation sole, "successors" is the 11 For the limitation of a fee to a trustee, see North v. Philbrook, 34 Me. 532; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065. 12 Adams v. Ro«s, 30 N. J. Law, 505; Ed wards ville R. Ck). v. Sawyer, 92 IIL 377; Stell v. Barham, 87 N. C. 62; Batcholor v. Whitaker, 88 N. C. 3.^0; Buffuui V. Hutchinson, 1 Allen (Mass.) 58; Jordan v. McClure, 85 Pa. St. 495; Arms V. Burt, 1 Vt 303. Contra, Cole v. Lake Co., 54 N. H. 242. 18 For instance, a life estate only was held to pass by the words "successors and a.'^sijms forever," Sedgwick v. Laflin, 10 Allen (Mass.) 430; "executors, administrators, and assigns," Clearwater v. Rose, 1 Blackf. (Ind.) 137; "and his generation so long as the waters of the Delaware run," Foster v. Joice, 3 Wash. C. C. 498, Fed. Cas, No. 4,974. But see EJvans v. Brady, 79 Md. 142 28 Atl. 1061; Engel v. Ayer, 85 Me. 448, 27 Atl. 352; Adams v. Ross, 30 N. J, Law, 505. I 17) CBEATIPN. 37 proper word to use," bot in the case of a corporation a?:jrregate no words of limitation are necessary." The technical words are not required in a strict quitclaim deed. Thus, when one joint ten- ant or a coparcener ^* releases his interest to his co-tenant, no words of inheritance, as it is called, are necessary to pass a fee.^' But the rule is otherwise in the case of a conveyance by a tenant in common ^* to a co-tenant," or where the reversion is released to the tenant for life.^° In the case of a conveyance in which ref- erence is made to another instrument, if the necessary words of inheritance are used in the instrument referred to, their absence from the other will not prevent a fee simple passing.*^ When a fee simple was intended to be conveyed, but adequate words were not employed, the deed may be reformed in equity, and made to ex- press the intention of the parties.^^ This rule requiring the word ''heirs" to be used has in many states been changed by statute, 80 that other expressions are adequate to convey a fee simple; " Shaw, C. J., In Overseers of Poor of City of Boston v. Sears, 22 Pick. (Mass.) 126; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985. i» Congregational Soc of HaUfax v. Stark, 34 Vt 243; Wilcox v. Wheeler, 47 N. H. 488. And see Beach v. Haynes, 12 Vt. 15; WUkes-Barre v. Wyoming Historical & Geological Soc, 134 Pa. St 616, 19 AtL 809. Where land in set- tled upon or devised to a charity, it may happen that, when the corpora- tion managing the charity comes to an end, and the charity itself beeoraegi impracticable, the land will retam to the donor's heirs. Stanley v. Colt, 5 Wall. 119. And see 1 BL Comm. 484. Rutherford v. Greene's Heirs, 2 Wheat 196, and Proprietors of Enfield v. Permit, 5 N. H. 280, are often cited to the effect that technical words of limitation are not necessary to pass a fee in the case of legislative grants, but they do not support the proposition. 18 See post, pp. 333, 336. 17 Scott Jm ia Rector v. Waugh, 17 Mo. 13, 2a 18 See post, p. 335. i» Rector v. Waugh, 17 Mo. 13. 29 1 Washb. Real Prop. (5th Ed.) 90. «i Lemon v. Graham, 131 Pa. St 447, 19 AtL 48; Merder v. Railway Co., 54 Mo. 506. But see Lytle v. Lytle, 10 Watts, 259; Reaume v. Chambers, 22 Mo. 86. *2 See Fetter, Eq. p. 314; Vickers v. Leigh, 104 N. a 248, 10 S. E. 30& Ct Swing V. Shannahan, 113 Mo. 188, 20 S. W. 1066; Deifraunce v. Brooks, 8 Watts & S. (Pa,) 67. 33 ESTATES AS TO QUANTITY FEE SIMPLE. (Ch. 3 and in some states it is to be presumed that a fee simple was in- tended unless the contrary appears," Creation hy Devise. The strictness of the common-law rule is relaxed in the case of limitations in wills, and the intention of the testator governs, 80 that he can devise a fee simple without using the word "heirs," if the expression employed shows that a fee simple is intended.** In many states there is now by statute a presumption that a fee simple is devised if no other intention appears.^* That the testa- tor meant to give a fee simple may be implied from a charge im- posed on the devisee; for it is said, if he was required to pay out money, and received only a life estate, he might die before being reimbursed from the land.** If, however, the charge is imposed on the land, instead of on the devisee personally, the presumption »s 1 Stim. Am. St Law, § 1474; 1 Share. & B. Lead. Gas. Real Prop. 56. renn- sylvania. New Jersey, Delaware, South Carolina, Florida, Ohio, and Wyo- ming have not dispensed with words of inheritance in deeds. 1 Dembitz, T.and Tit 99. «* FergTison v. Thomason, 87 Ky. 579, 9 S. W. 714; Lofton v. Mnrchison, 80 Ga. 391, 7 S. R 322; Howze v. Barber, 29 S. C. 4G6, 7 S. E. 817; Webster's Trustee v. Webster (Ky.) 22 S. W. 920; Lockett v. Locliett 94 Ky. 289, 22 S. W. 224; Mitchell v. CampbeU, M Ky. 347, 22 S. W. 549; Thomson v. Peake, 38 S. C. 440, 17 S. K 45, 725; Boutelle v. Bank, 17 R. I. 7S1, 24 AtL 838; Camp- bell V. Carson, 12 Serg. & R, (Pa.) 54; In re Green's Estate, 140 Pa. St 253, 21 Atl. 317; Armstrong v. Michener, 160 Pa. St 21, 28 Atl. 447; ilills v. Frank- lin, 128 Ind. 444, 28 N. E. 60; Bridgewater v. Bolton, 6 Md. lOG; Baker v. Bridge, 12 Pick. (Mass.) 27; Merritt v. Disney, 48 Md. 344; Dilworth v. Gusky, 131 Pa. St 343, IS All. 899; Doe d. Hitch v. Patten (Del Err. & App.) 16 Atl. 558. In a devise it has been held that a fee simple passed by the words "all my right" or "property." Newkerk v. Newkerk, 2 Gaines (N. Y.) 345; .Jackson y. nousel, 17 Johns. (N. Y.) 281. Contra, Doe v. Allen, 8 Term. R. 497. . "AU my estate" (by one owning a fee simple), Godfrey v. Humphrey, 18 Pick. (Mass.) 537. To A- "or his heirs," Wright v. Wright, 1 Ves. Sr. 409. To A. "forever," Heath v. Heath, 1 Brown, Ch. 147. But see Vernon v. Wright, 28 I^w J, Ch. 198, 204, 207; Davie v. Stevens, 1 Doug. 321. And cf. Clayton v. Clayton, 3 Bin. (Pa.) 476. »6 1 stim. Am. St Law, § 1474; 1 Shars. & B. Lead. Gas. Real Prop. 70. i« Doe V. Richards, 3 Term R. 356; Jackson v. Merrill, 6 Johns. (N. Y.) 185; Llthgow V. Kavenagh, 9 Mass. 161; Wait v. Belding, 24 Pick. (Mass.) 129; Blinston v. Warburton, 2 Kay & J. 400; Pickwell v. Spencer, L. R. 6 Exch. 19a 39 r JON ALIENATION. does not obtain." A fee simple may be presumed from the nature of the land devised, if no other estate would be of any value to the devisee; for instance, in a devise of wild lands, which would be of no value unless the timber could be cut, and a tenant for life would have no such right.*' SAME— RIGHT OP USER. 18 The owner of a fee simple may use his land in any way he pleases, provided he does not cause injury to others. One who has a fee simple estate in land possesses an indefinite ri-ht of user, so that he may commit unlimited waste, such as opening mines, cutting down trees, destroying buildings and other structures, or removing real fixtures." This is not technical waste In connection with other estates, it will be seen that these acts are wrongful, and are called "waste"; but when done by an owner in fee simple they are lawful. There is the one restriction on his right of user, namely, that he must not cause injury to others by the use to which he puts his land, or, in other words, he must not maintain a nuisance on his premises." SAME— ALIEWATIOW. 19. A fee simple estate is subject to aUenation, which may be: (a) Voluntary, which is: (1) Inter vivos, or (2) By will. (b) Involuntary, which is either: (1) For debts or taxes, or (2) Under the power of eminent domain. .T Jackson Y. BuU. 10 Johns. (N. Y.) 148; McLeUan v. Tnmer 15 Me. 438; Doe V. Barter. 7 Blackf. (Ind.) 488; Punk v. Eggleston, 92 IlL 515. And see Spraker v. Van Alstyne, 18 Wend. (N. Y.) 200. »8 Sargent v. Towne, 10 Mass. 303. t^ 2 BL Comm. 282. But see the Case of Mines, 1 Plow. 310. 336; Com. t. Tewksbury, 11 Mete (Mass.) 55. »o 2 Jag. Torts, p. 748; 1 Wood, Nuis. (3d Ed.) 127. 40 E.STATE3 AS TO QUAJITITY ^FKJE SDfFLS. (Ch. 3 Vohintary Alienation. One of the principal incidents of a fee simple is the right of the owner to dispose of it, and in this way exert a control over his land even after death. Subject to certain disabilities of the person, to be noticed hereafter,*^ the owner of a fee simple can now •* alien his estate by deed or by will very mnch as he pleases, pro- vided he complies with the formalities of conveyancing required by law. There are, however, certain exceptions to this power. For instance, an owner of land, though he holds it in fee simple, cannot create estates and forms of tenure unknown to the law, or which are prohibited by law." Within this principle comes the rule against perpetuities, to be discussed hereafter,** which pre- vents the creation of estates to take effect at a remote time in the future. Moreover, an owner of land is not permitted to convey to others, and at the same time forbid them to dispose of it, for the law allows only very limited restraints to be imposed on alien- ation."* In some states there is a limitation on the amount of land which a man can give by will for charitable purposes." Fur- thermore, no one is allowed to dispose of his land in such a way that it is a fraud on his creditors; " and, when an action Is pend- ing which involves the title to lands, they cannot be conveyed away so as to prejudice the other party.'* The most important ex- ceptions, however, to the power of alienation, are those arising from the rights of dower, curtesy, and homestead, which will be explained in subsequent chapters. iTWoluntary Alienation. A fee simple is also subject to alienation without the owner's consent, for it may be taken for taxes, and, at the present time, to «i rust. p. o81, including the disabilities of aliens, corporations, etc «2 For tlje history of the right of alienation, see post, p. 390. •8 See Doebler's Appeal, G4 Pa. St. 9. «♦ Post, p. 322. 8B See post, p. 390; Blackstone Bank v. Davis, 21 Pick. (Mass.) 42; Langdon T. Ingram's Guardian, 28 Ind. 360. Restrictions as to use may be valid, Cowell V. Springs Co., 100 U. S. 55. 3« 1 Stim. Am. St. Law, § 2G1S; Williams. Real Prop. (17th Am. Ed^ p. 95, note. • 7 See post, p. 392. «• See post, p. 218. § 19) ALIENATION. 41 pay his debts." Land may also be taken from the owner under the power of eminent domain, but this can onJy be done on making compensation for the land so taken.*" Nor is there any way In which involuntary alienation may be avoided, except in a few states under the doctrine of spendthrift trusts.*^ But an estate may be so limited to a man that it shall determine on any at- tempt at alienation, voluntary or involuntary, and so it will not be available to creditors.*^ The restrictions on alienation by an owner in fee simple apply to lesser estates. If the owner of an estate in fee simple does not dispose of it during his life. It de- scends to his heirs, and vests in them without any act on their paxt.*' s» WatMns v. Holman, 16 Pet 25; Wyman v. Brigden, 4 Mass. 150; Nokes T. Smith, 1 Yeates (Pa.) 238. By different acts of congress a priority is given to the claims of the United States, and these acts are constitutional. D. S. V. Fisher, 2 Cranch, 358; Harrison v. Sterry, 5 Craneh. 289. Similar statutes exist in some states regulating the order of preference of cl aims. 2 Werner, Adm'n. 772. 40 Taylor v. Porter. 4 Hill (N. Y.) 140. See post, p. 494. *i Post, p. 396. Keyser v. Mitchell, 67 Pa. SL 473; Ashiiurst's Appeal, 77 Pa. St 465; HaUett v. Thompson, 5 Paise (N. Y.) 583; MclJvaine v. Smith, 42 Mo. 45; I^mpert v. Haydel, 96 Mo. 439, 9 S. W. 780; Johnston v. Zane, 11 Grat (Va.) 552. Cf. Nichols v. Levy, 5 Wall. 433. *2 Nichols V. EJaton, 91 U. S. 716; BramhaU v. Ferris, 14 N. Y. *1: Emery v. Van Syckel, 17 N. J. Eq. 564. And see post, p. 395. * 3 In re Estate of Donahue, 36 Cal. 329. 12 ESTATES AS TO QDAJiTlTY ESTATES TAIL. (Ch. 4 CHAPTEB IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAII*. 20. Estates Tall Defined. 21-22. Cla.sses of Estates TalL 23. Orljrin of Estates TaiL 24-25. Creation of Estates TaiL 28. Incidents of Estates Tafl. 27. Duration of Estates TaiL 28. Tenaxit in Tail After PossFbHlty of Issue Blxtlnet. 29-30. Estates Tail in the United States. 81. Quasi EntalL ESTATES TAIL DEFINED. 20. An estate tail is an estate of inheritance which de- scends only to the heirs of the body of the donee or to some special class of such heirs. Ad estate tail is a freehold estate of inheritance, with the pe- cnliarity that, on the death of the tenant, only the heirs of his body, or some particular description of them, can inherit This limitation of the inheritance to the heirs of one's body, instead of to the general heirs, is the distinguishing feature of an estate tail.* Only heirs in the direct descending line can inherit Thus, a brother of a tenant in tail cannot take.* The one who makes a "gift," as it is called, of an estate tail, is called the "donor," and the one to whom the estate is given is called the "donee." • An estate tail is a smaller interest in land than a fee simple. If the owner of a fee simple makes a grant of an estate tail, an es- tate still remains in him, called a "reversion." * If at any time 1 (Joodrlght V. Morningstar, 1 Yeates (Pa.) 313; Corbln v. Healy, 20 Pick. (Mass.) 514; Rlggs v. Sally, 15 Me. 408. Ct Reinhart v. Lantz, 37 Pa. St. 488. 2 2 BL Comm. 113. « 2 BL Comm. 110. * And tlierefore the statute of quia emptores does not apply to a fee talL and tenure may exist between donor and donee. Dig. HisL Real Prop. (4th Bd.) 248. And see post, ,p. 280. §§ 21-22) CLASSES OF ESTATES TAIL, 43 there is a failure of heirs within the description of those, entitled to take under the gift, the property reverts to the donor or his heirs. Where the donor of an estate tail, by the same instrument which creates it, gives the interest which remains in him to a third person, the estate of such third person is called a "remainder." • CLASSES OF ESTATES TAIL. 21. Estates tail are divided into: (a) Estates in general tail, the donee being tlie only par- ent named. (b) Estates in special tail, both parents being named. 22. Estates in general and special tail are further divided into: (a) Estates in tail male, descending only to male heirs. (b) Estates in tail female, descending only to female heirs. Where the estate is limited simply to the heirs of the donee's body, without further particularity of description, the estate is an estate in general tail. In such case, any of the issue of the donee's body can inherit.' The inheritance, however, may be restricted to the heirs of the body of the donee and another person named, as "to A. and his heirs begotten on the body of his wife, B." ^ Or the limitation may be to two donees and the heirs of their two bodies. These cases, where both parents of the heirs who are to take are named, are called estates in special tail.* Such limita- tions are valid if the persons named are husband and wife, or if there is a possibility of their becoming lawfully married,' no mat- ter how improbable it is that they ever will be.^* But, if the es- tate is given to a man and his heirs by a woman whom he cannot t> See post, iJ. 1182, • Co. Lit±. §§ 14, 15; 2 BL Comm. 113. T2 BL Comm. 114. « Co. Litt § 16. »Co. Litt § 16. 10 But a contrary presnmptlon may arise, as In case of two donees who haT« already been married and divorced. Ca Ldtt 25b, note 2. 44 ESTATIia A3 TO QUANTITY ESTATES TAIU (Cll. 4 marry because she is witliin a prohibited de^rree of consanguinity^ the limitation to the heii-s is void, and the donee will take only a life estate, the reversion remaining in the donor.^^ But a limi- tation in tail to two donees who are each married to other per sons is good, since they may become free, by reason of death or divorce, to marry each otlier.^^ Whenever there can be no issue who can take the estate according to the form of the gift, — for exam|)Ie, because of the death of the wife named prior to the gift, —then the donee will take only a life estate." The inheritance of an estate in general or special tail may be further restricted to the males or females of the class of heirs designated. Examples of such estates are "to A. and the heirs male of his body,^* and" to A. and his heirs male on the body of his wife, B., begotten." Es- tates tail female are very rare. No one can inherit an estate in tail male who cannot trace his descent from the donee through males entirely. For this reason the son of a daughter of the donee cannot take the estate, because his mother could not have inher- ited. The same principle applies in estates tail female, so that only females and the female issue of females can take.^* ORIGIN OF ESTATES TAIL. 23. Estates tail v/ere created by the operation of the stat- ute de donis conditionalibus upon fees conditional at common la"w. In early feudal times, when estates first became hereditary, and were given to a man and his heirs, the word "heirs" was considered to mean lineal heirs, or the descendants of the body of the first taker.^* The collateral relations, such as brothers, sisters, and cousins, could not take. This was obviously to the advantage of the feudal lord or 11 Co. IJtt § 283. 12 Co. IJtL § 2o. IS That Is, the donee has an estate taJl after possibility of Issue extinct. Post, p. 52. 1* Ilulburt V. Emerson, 16 Mass. 241, " Co. LltL § 25. !• Co. Litt §§ 23. 24. i« Dig. Hist Eeal Prop. (4th Ed.) 220; Pol. & M. Hist Eng. Law, tL § 23) ORIGIN OF ESTATES TAIL. 45 grantor; for, by confining the inheritance to the issne of his tenant, he was more likely to have profitable wardships and escheats than if col- lateral kinsmen were admitted. At this time the heir derived his title to the estate from the grantor by designation in the grant per formam doni. But as the tenant acquired, in course of time, the power of alienating the fee, the interest of the heir became reduced to a mere expectation of succeeding, in the event of his ancestor not exercising that power. The additional grant to the heirs was then referred wholly to the estate of the ancestor, as importing merely an estate of inheritance, an essential incident of which was the power of transferring the land, and the heir no longer claimed as grantee by designation in the grant, but derived his title from the ancestor by descent.^' The word "heirs" was also extended, so as to include collateral as well as lineal heirs.^** When the gran- tor, therefore, wished to confine the estate to the lineal descendants of the tenant, it became necessary for him to expressly limit it to the heirs of the tenant's body. Estates so limited were called, in- differently, "conditional fees," "fees conditional," and "fees condi- tional at common law," because of the condition, implied in the grant, that if the grantee died without heirs of his body, or in case of a failure of such heirs at any future time, the land should revert to the grantor. The grantor had no reversion, but only a possibility of a reverter. The fee was still considered to be in the grantee, subject to be divested by the failure of the condition. The limitation to the heirs of his body did not otherwise affect the rights and powers of a tenant, and in respect of these it re- mained a fee simple. So long as the fee lasted, the tenant for the time being had all such powers, including the power of alienation, as were the inseparable incidents of an estate of inheritance. It was, however, a condition necessary to the full effect of his alien- ation, so as to bar, not only his issue, but also the possibility of reverting to the grantor, that he should have heritable issue.'^ The gift to one and to the heirs of his body was construed, for the purpose of alienation, to be the same as a gift to him and to his i» Leake, Prop. Land. 33. 2» Williams, Real Prop. (17th EJd.) 101. 212 BL Comm. 110; 1 Spence, Eq. Jur. 141; Anon., Fitzh. Abr. ♦Tformedon,- 65. 46 ESTATES AS TO QUANTITY ESTATES TAIL. (Ch. 4 heirs, if he had heirs of his body. By this constrnetion the inten- tion of the grantor in limiting the estate to the heirs of his tenant's body was again defeated.*' The birth of issue was held to dis- charge the estate of the condition, and, like a fee simple, the tenant had power to alien or incumber it, and it was liable to forfeiture for treason. If the donee aliened the land before issue was born, the conveyance was effectual against both the donee and the donor during the donee's life. If issue was bom to the donee subse- quently to his conveyance, the grantee's estate became absolute, and cut off all rights of the issue and of the donor.* The Statute de Donis CondltionalUms. In 1285, the great landowners secured the passage of the fa- mous statute "de donis conditionalibus," *' or, as it is often called, the Statute of Westminster IL This act provided that, "where any giveth his land to any man and his wife and to the heirs be- gotten of the bodies, ♦ ♦ • the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given un- der such condition shall have no power to aliene the land so given, but it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if is- sue fail," etc. No forfeiture was imposed on a tenant who should alien his estate, but his conveyance was of no effect, after his death, against his heirs or the donor. The statute, in taking away from the tenant the power to alien the land, deprived his estate of that incident which chiefly characterized it as a fee simple.^* It was, therefore, no longer classed as a fee simple conditional, but it was recognized to be a new kind of fee or inheritance created by the statute, and thenceforth distinctively known as a "fee tail." "Wliere an estate to one and to the heirs of his body was a fee simple before the statute, now since the statute it is taken that he has but a fee tail, and this is included in the statute although it is not expressed; for when the statute restrained the donee from 22 2 Bl. ComiTL Ul. ♦ 1 Spence, Eq. Jur. p. 141. And see NeviPs Case, 7 Coke, 33a; Willion r, Berkley, Plow. 223; Buckworth y. Tliirkell, 3 Bos. & P. 652, note, 28 13 Edw. I. St 1. c. 1, § 2. «* HiU v. Hill, 74 Pa. St 173. §§ 24-25) CREATION OF ESTATES TAIL. 47 aliening the fee simple, or from doing other acts which he that has a fee simple may do, it was presently taken that the fee was not in him, for it would be idle to adjudge it in him when he could not do anything with it, and therefore it was taken, by collection and implication of the act, that the fee simple continued in the donor. So that he has one inheritance, viz. a fee simple, and the donee has another inheritance of an inferior degree, viz. a fee tail. And immediately upon the making of the act it had this name given it." *' It was so called from the inheritance being cut down — "talliatum" — to the line of heirs designated. The name was used for a restricted inheritance before the statute, but since the statute it is used distinctively for the new estate thereby created.^' After the statute de donis the heirs of the donee again took per formam doni. CREATION OP ESTATES TAIL, 24. For the creation of a fee tail there must be added to the -words necessary to limit a fee simple other ■words -which restrict the inheritance to the heirs of the body of the first taker: 25. An estate tail cannot be created out of a chattel in- terest in lands. ♦ Lvmitation of Estates Tail, For the creation of an estate tail words of limitation and pro- creation are necessary; that is, not only is the word "heirs" re- quired, as in the limitation of a fee simple, but there must also be some words which show that the heirs of the donee's body, or some class of them, are to inherit the estate. If the words of limitation are absent, the donee takes only a life estate,^^ while the omission of words of procreation gives the donee a fee simple.** As to what words are suflBcient to create an estate tail, the same rules apply as to a fee simple, as far as words of limitation are concerned j so »« "Winion V. Berkley, Plow. 251, per Dyer, a J. 28 Leake, Prop. Land, 37. XT Ox Utt. 20b; 2 BL Gomm. U5; Ford t. Johnson, 41 Ohio St 36G. CL Lehndorf v. Cope, 122 ILL 317, 13 N. E. 505. «« 2 BL Comm, 115; Co. lAtL 27a; Doe v. Smeddle, 2 Bam. Sc Aid. 126. 48 BSTATES AS TO QUANTITY ESTATES TAIL. (Ch. 4 that the word "heirs" must be used in a deed, and "seed," '^ssue," or "children of the body" would be insufficient." But any words which show that the word "heirs" is to be restricted to the heirs of the body will suffice to restrict the inheritance to a fee tail." In wills there is the same relaxation as in the creation of a fee simple, and the intention of the testator governs, even though he does not use the technical words required in a deed.'^ So the word "issue," *' or "children" " may be sufficient to create an es- tate tail, without using the word "beirs," if it appears from the context that the devisor so intended." And in a will the expres- sion "heirs male" has been held to pass a fee tail, although it would create a fee simple if used in a deed. A limitation to A. and to his heirs male, or to A. and to his heirs female, creates an estate in fee simple, because it contains no restriction to a particular line of issue. It is not limited by the gift of what body the issue male or female shall be. Inheritance by heirs general cannot be restricted to one sex; therefore, the words "males" and "females," having here no legal import, are rejected, and all the heirs, female as well as male, may inherit. For no man can institute a new kind of inheritance not allowed by law." The intention to give a *9 Co. Litt 20a; 2 BL Comm. 115. so Hall v. Vandegrift, 3 Bin. (Pa.) 374; CJorbin v, Healy,"20 Pi(*. (Mass.) 514; Pollock v. Speidel, 17 Ohio St 439; Den v. Lake, 24 N. J. Law, 686; Morgan v. Morgan, L. R. 10 Eq. 99; Den v. Cox, 9 N. J. Law, 10; Buxton v. Inhabitants of Uxbridge, 10 Mete (Mass.) 87; Brown v. Hospital, 155 Mass. 323, 29 N. EL 625; Holden v. Wells (R. L) 31 AtL 2G5. 81 Reinoehl v. Shirk, 119 Pa. St. 108, 12 Atl. 806; Arnold v. Brown, 7 R. I. 189; Manwaring v. Tabor, 1 Root (Onn.) 79; Clark v. Baker, 3 Serg. & R. (Pa.) 470; Stone v. McMullen (May 3, 1881) 10 Wkly. Notes Cas. 541. But see Hill V. Hill, 74 Pa. St. 173. "Heirs lawfully begotten" has been hold. In a will, to mean "begotten by him." Pratt's Lessee v. Flamer, 5 Har. & J. (Md.) 10. 82 Claric V. Baker, 3 Serg. & R. (Pa.) 470; Taylor v. Taylor. 63 Pa. St 481. 88 Nightingale v. Burrell, 15 Pidc (Mass.) 104; Fletcher v. Fletcher, 88 Ind. 418. 34 See, al^o, Braden v. Cannon, 24 Pa, St 168; Ganse v. Wiley, 4 Serg. & R. (Pa.) 509; Allen v. Markle, 36 Pa, St 117; Wheatland v. Dodge, 10 Mete. (Ma.ss.) 502. 8» Co. Litt 13a; Leake, Prop. T^nd, 171; Den v. Fogg, 3 N. J. Law, 598; Allin v. Bunee, 1 Root (Conn.) 96; Welles t. Olcott, Kirby (Conn.) 118; I 26) INCIDENTS OF ESTATES TAIL. 49 fee tail may appear from a limitation over, if the donee "die with- out heirs of his body," or similar expressions. This is called an "estate tail by construction." '• Estates Tail — In Chattel Interests. There can be no fee tail in personal property or in chattel inter- ests, and an attempt to so limit an estate tail results in passing the donor's entire interest* INCIDENTS OP ESTATES TAIL. 26. The rights of the o-wner of a fee tail are the same as the rights of one o-wning a fee simple, except as to alienation. As already seen, a tenant in tail can convey only an estate dur- ing his life; otherwise, the incidents of estates tail are tlie same as of those in fee simple.^^ The tenant in tail is not liable for waste," and is not bound to pay off incumbrances or to keep down Den T. Dubois, 16 N. J. Law, 285; Giddings v. SmiUi, 15 Vt 344; PoUock v. Speidel, 17 Ohio St 439; 4 Kent Comm. 12; 1 Share. & B. Lead. Cas. Real Prop. 94. See Jewell v. Warner, 35 N. H. 176. But not in South Carolina. MurreH r. Mathews, 2 Bay (S. C,) 397; Wright v. Herron, 5 Rich. Eq. (S. C.) 441. «• AUen T. Trustees, 102 Mass. 262; Potts' Appeal, 30 Pa. St 168; Tate T. TaUy, 3 Call (Va.) 354; Doe v. Craigen, 8 Leigh (Va.) 449; Den v. Hyatt 1 Hawks (N. C.) 247; Covert v. Robinson, 46 Pa. St 274; Smith's Appeal, 23 Pa. St 9; WiUis v. Bueher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; Albee V. Carpenter, 12 Cush. (Mass.) 382; Perry v. Kline, Id. 118; Parkman v. Bowdoin, 1 Sumn. 359, Fed. Cas. No. 10,763; Brown v. Weaver, 28 Ga. 377; Child v. Baylie, Cro. Jac. 459. ♦Stockton V. Mai-tin, 2 Bay (S. a) 471; Albee v. Carpenter, 12 Cush. (Mass.) 382, But cf. Burkhart v. Bncher, 2 Bin. (Pa.) 455; Shoemaker v. Huff- nagle, 4 Watts & S. (Pa.) 437; Duer v. Boyd, 1 Sei^g. &. R. (Pa.) 203. And see post, p. 53. 37 Buxton V. Inhabitants of Uxbridge, 10 Mete. (Mass.) 87; Partridge v, Dorsey, 3 Har. & J. 302. 8 8 Hales V. Petit Plow. 253; Secheverel v. Dale^ Poph. 193; Liford's Case, II Coke, 46b; Attorney General v. Marlborough, 3 Madd. 498. But he cannot antborize it after his death. Liford's Case, supra. What is meant by "waste" will be treated of under "Life Estates," post, p. 62. KRAIiPBOP. — 4 60 ESTATES AS TO QUANTITY ESTATES TAIL. (Ch. 4 the interest on them." An estate tail is subject to dower " and curtesy." But the doctrine of merger does not apply to estates tail. By merger, when a greater and a lesser estate come together in one person, the latter is destroyed by the former, and the own- er has only the one estate left, thus sometimes .cutting out rights which came between the two estates. But, if the tenant in tail becomes the owner of the reversion or the remainder in fee, his estates do not consolidate and shut out the issue in tail, or other re- mainders, if there are such.*' DURATION OF ESTATES TAEL. 27. An estate tail endures until the particular heirs named in the gift are exhausted, and then reverts to the donor, unless it is sooner barred, which may be: (a) By common recovery (obsolete>. (b) By fine (obsolete). (c) By deed, in most states. Ba/rring Estates Tail — By Common Recovery, After the statute de donis had been in force about 200 years,** a method of evading it and of barring the entail was devised, called a ''common recovery." This consisted of a collusive suit, brought by the intended purchaser, called the "demandant," under a claim of paramount title against the tenant in taiL The latter did not defend, but claimed that his grantor had warranted the title to the lands, and asked that he be called upon to defend the suit. This was termed 'Slouching to warranty."** The vouchee, who 8» Amesbniy v. Brown, 1 Ves. Sr. 477; Chaplin r. Chaplin, 3 P. Wms. 235. But see Burgess v. Mawby, 1 Turn. & R. 176. *o Kennedy v. Kennedy, 29 N. J. Law, 185; Smith's Appeal, 23 Pa. St. 9. See post, p. S3. 41 Voller V. Carter, 4 El. & Bl. 173. See post, p. 73. Before the statute the second husband could have curtesy. Anoa., Fitzh. Abr. "Formedon," 66. But this was chajQg-ed by the statute. *2 Wiscot's Case, 2 Coke, 60a; Challis, Real Prop, c 10. 4 3 The house of lords had defeated all attempts to repeaJ the statute. See Mildmay's Case, 6 Coke, 40a; 2 BL Comm. 116. 44 The proceeding was usually a more complicated one, called a "recovery § 27) DUBATION OF ESTATES TAIL. 51 was a mere man of straw, suffered default to be entered against him, tlms admitting the warranty. Then the lands were judged to belong to the demandant, and judgment was entered against the vouchee that he reimburse the tenant in tail with lands of equal value, according to the doctrine of warranty.*' The entail was held to attach to this land, so the heirs and remainder-men would lose nothing; but in fact the vouchee was always a man of no means, and had not in fact warranted the estate to the defendant, but was a third person, called in to carry out the fiction, ajid the judgment against him was worthless. The efficacy of tbis pro- ceeding to bar an estate tail was first recognized in the now fa- mous Taltarum's Case." A common recovery, being suffered, not only cut off the issue in tail, but destroyed all remainders or re- versions as well, and thus effectuaJly put an end to entailed es- tates.*^ That is, the tenant in tail, after Taltarum's Case, always had power to suffer a recovery, and no condition or restriction in. the deed of gift could be devised which could prevent it*» Same — By Fine. Estates tail might also be barred by another Idnd of collusive action called a "fine." " Fines were actions for the recovery of lands on a claim of title, which were compromised by the parties with leave of the court, and the judgment record entered in the case became the record of title. The effect of a fine was to bar the issue in tail, but not tbe remainder-man or reversioner.** with a double voucher." For further details as to recoveries, see 2 BL Ckjinm. 357; Challis, Real Prop. 249. *» As to the Grigin of warranty, see Digby, Hist Real Prop. 80, note L *« Y. B. 12 Edw. IV. 19. *T 2 BL Comm, 361. A recovery could be suffered only by one In possession as tenant in tall or with the consent of the person In possession. 1 Dembitz Land Tit 116. *8 Mary Portington's Case, 10 Ck)ke, 35b; Dewitt v. Eldred, 4 Watts & S. (Pa.) 415. And see Waters v. Margenim, 60 Pa. St 39; Doyle v. Mullady, 33 Pa. St 264; Elliott v. Peareoll, 8 Watts & S. (Pa.) 38; HaU v. Thayer, 5 Gray (Mass.) 523. *» The statute de donis declared that fines should have no effect on estates tail, but this was changed by the statutes of 4 Hen. VH. c 24. and 32 Hen. VIII. c. 36. »» Seymor-s Oase. 10 Ooke. 95b. They would also be barred unless they 52 ESTATES AS TO QDANTITY ^ESTATES TAIL. (Ch. 4 Same— By Deed, In many states it is now provided by statute that estates tail may be barred by deed.* TENANT IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT. 28. When there is a tenant in special tail, and it has be- come impossible for him to have issue who can in- herit under the entail, he is called "tenant in tail after possibility of issue extinct." If one is tenant in tail, and it has become impossible that there shall be issue who can inherit, he is called "tenant in tail after possibility of issue extinct." This condition can only arise in es- tates in special tail, as where the limitation is to "A. and his heirs begotten on the body of his wife, B.," and B. dies without issue." The presumption that the possibility of issue is extinct never arises from the great age of the parties, and so there can never be a tenant in tail after possibility of issue extinct in case of an estate in general tail." The position of a tenant in tail after possibility of issue extinct is in some respects different from that of a tenant in tail. lie cannot bar the entail, but the doctrine of merger ap- plies." Such a tenant is not punishable for waste,' 64 ESTATES TAIL IN THE UNITED STATES. 29. In many states estates taO. have been abolished by statutes, which have turned them into either (a) Estates in fee simple, or (b) Life estates, with remainders to the donee's heii's who w^ould take under the entail. 30. In some states estates tail still exist, but may be barred by deed. made claim within a period fixed by statute. Further formalities were after- wards required called "proclamations." 2 BL Comm. 348; 1 Shep. Touch, c. 2. • See post, § 30. 61 Co. Lltt §§ 32-34; 2 BL Comm. 124. 62 2 BL Comm. 125. •« Co. Litt 2Sa. 64 Co. Litt. 27b. § 31) QUASI ENTAIL. 53 Estates tail, as created by the statute de donis, were generally recognized in the original states of this country." But great changes have been made by statute. In some of our states estates tail have been abolished, and a conveyance attempting to limit an estate tail would create a fee simple in the donee who would be first entitled to the estate under the form of the gift." In others the first taker has a life estate, with remainder over in fee simple.**^ In still others estates tail may exist until barred, and this can be done by a simple deed or by one acknowledged in a manner pro- vided by the statute. "** Fines and recoveries are not now in use, though they were used somewhat in the early history of our coun- try.^' There are a number of states in which no statutory provi- sions as to estates tail exist. In these states, fees tail are as at common law unless, when the question comes before the courts, such estates are held not to be adapted to the genius of our in- stitutions,'* QUASI ENTAIL. SL A limitation to one and the heirs of his body out of a life estate is called a * 'quasi entail," and is not af- fected by the statute de donis conditionalibus. \ »» See Williams, Real Prop. (17th Am. Ed.) note 121. o« In re Ilobinson's Estate, 149 Pa, St 418, 24 Atl. 297; Ray v. Alexander, 146 Pa. St 242, 23 AU. 383; Durant v. Muller, 88 Ga, 251, 14 S. E. 612; Burris v. Page, 12 Mo. 358; Pruitt v. Holland, 92 Ky. 641, 18 S. W. 852; Pricliard v. James, 93 Ky. 306, 20 S. W. 216; Lanham v. Wilson (Ky.) 22 S. W. 438. 67 Doty V. Teller, 54 N. J. Law, 163, 23 Atl. 944; Clarkson v. (Harksoa, 125 Mo. 381, 28 S. W. 446; Brown v, Rogers, 125 Mo. 392, 28 S. W. 630. In some states remainders after estates tail are preserved Lf they take effect on the death of the first taker without issue, the entail being extinct by that event 1 Dembitz. Land Tit 117. B8 1 stim. Am. St I^aw, § 1313; Williams, Real Prop. (17th Am. Ed.) note 121; 1 Washb. Real Prop. (5th Ed.) 117, note 2; 1 Shars. & B. Lead. Gas. Real Prop. 109. As to barring the entail by deed, see Collamore v. CJollamore, 158 Mass. 74, 32 N. E. 1034. B» Jewell V. Warner, 35 N. H. 176; Lyle v. Richards, 9 Serg. & K. (Pa,) 322; Carter v. McMichael, 10 Serg. & R. (Pa.) 429; Wood v. Bayard, 63 Pa. St. 320. • Jordan v. Roach, 32 Miss. 481. In some states It has been held that the Etatnte de donis conditionalibus is not In force, and that limitations to a man and the heirs of his body create fees conditioDai at common law. Pierson v. 54 ESTATES AS TO QUANTITY ESTATES TAIL. (Ch. 4 An estate may be limited to one and the heirs of his body daring the life of another person. The statute de donis does not apply to snch an estate; so it is not a fee tail, but resembles more a fee conditional at common law.'^ This form of limitation is usually called a "quasi entail." Lane, CO Iowa, 60, 14 N. W. 90; Rowland v. Warren, 10 Or. 129; Izard v. Middleton, 1 Bailey, Eq. (S. C.) 227; Barksdaie v. Gamage, 3 Rich. Kq. (S. C) 379; Burnett v. Burnett, 17 S. G. 545. «i B^urther, as to quasi entail, see Grey v. Mannock, 2 Eden, 339; Dillon v. DUlon, 1 BalL & R 77; Allen v. Allen, 2 Dru. & War. 307; Campbell v. San- dys, 1 Schoales & L. 2SL § 33) ESTATES AS TO QUANTITY— CONVENTIONAL LIFE ESTATES. 55 CHAPTEB V. ESTATES AS TO QUANTITY (Continued)-<:ONVENTIONAL LIFB ESTATES. 32. Life Estates Defined. 33. Creation of Life Estate. &t-36. Conventional Life Estates. 37. Incidents of Life Estates. S8-39. Estates per Autre Vie. LIFE ESTATES DEFINED. 32. Life estates are freeholds not of inheritance. They include : (a) Estates for the tenant's ov^m life. (b) Estates for the Ufe of another,-per autre vie. (c) Estates for an uncertain period, v^hich may continue during a life or lives. Life estates come next below estates tail in order of qnantity of inWest They are freeholds, bnt not of inheritance.^ In genera^ terms, they are estates whose duration is limited by the length of a human life. Estates of uncertain duration, which may con- tinue during a life or lives, are regarded as life estates.' It is im- material how improbable it is that the estate will last during a life. It is sufficient if by possibility it may do so. An estate to a woman during widowhood is a life estate. It may last during her life, but it cannot last longer.' CREATION OF LIFE ESTATES. 33 As to mode of creation, life estates are: (a) Conventional, created by act of the parties (p. 56). (b) Legal, created by operation of lav^ (p. 69). 1 2 BL Comm. 120. ^-- « Hurd y. cashing. 7 Pick. (Mass.) 169; Warner y. Tanner, ^ Ohio St. US; Beeson y. Burton, 12 C. B. 647. Bnt cf. Gllmore y. Hanulton, 83 Ind. 198. • Roseboom y. Van Vecliten, 5 Denio (N. Y.) 414. 56 ESTATES AS TO QUANTITY CONVENTIONAL LIFE ESTATES. (Ch. 5 The main division of life estates is into conventional and legal life estates. The former are those which the parties create by their acts, having the creation of such estates in view as the re- sult of the acts, as where the owner of a fee simple grants an- other the land for so long as he lives.* Legal life estates, on the other hand, result from the operation of law, without any acts by the parties looking to such result, but from acts done for other purposes. For example, marriage may give both husband and wife interests in the realty of the other, although nothing has been said, or no express contract njade, in relation to such realty. These estates are created by operation of law, and are called life estates. Conventional life estates will be considered in the remainder of this chapter, and legal life estates in the succeeding chapter. SAME— CONVENTIONAL LIFE ESTATES. 34. Conventional life estates may be measured by one or more lives. 35. At common law no -words of limitation need be added to the grantee's name to create a life estate. 36. Estates per autre vie arise by express limitations to a grantee for the life of another person, or by the assignment of an existing life estate. Conventional life estates are of two sorts, depending on the person whose life limits the duration of the estate. They are either for one's own life," or during the life of another person, in which case they are called "estates per autre vie." ^ An estate for one's own life is regarded as of a higher nature than an estate per autre vie.'' Estates during two lives, as "to A. and B., during their joint lives," or "to A., during the lives of B. and C," are in * 2 BL Comm. 120. By statute in several states, life estates "may be creat- ed in a term of years and a remainder limited thereon." 1 Stim. Am. St Law, f 1427. A life estate cannot be created by paroL Stewart v. Clark, 13 Meta (Mass.) 71); Garrett v. Clark, 5 Or. 4t^ 6 Co. Litt. § 56. • Co. LItt. § 56; 2 BL Comm. 120. T 2 BL Comm. 121. §§ 34-36) CREATION OF LIFE ESTATES. 67 reality measured by a single life. A limitation during joint live» is in effect the same as during the life of the shori;est liver of those named, and one during two or more lives is equivalent to an es- tate during the life of the one who lives longest.' An estate for joint lives must be expressly so limited.' Words of Limitation. According to common-law rules, if an estate is granted to a man without adding any words of limitation, he takes a life estate. Therefore, no special words need be used to create a life estate,^" except where there is a statutory rule that a fee simple is presumed to be conveyed unless otherwise restricted.'' Since an estate for one's own life is considered a higher interest than an estate per autre vie, where the conveyance does not specify for whose life the grantee is to hold, he takes it for his own life. But where the grantor can only give an estate for his own life, as where he Is himself a tenant for life or a tenant in tail, then the grantee will take only what the grantor can lawfully give; " that is, an es- • Brudnel's Case, 6 Coke, 9a. See Clark v. Owens, 18 N. Y. 434; Dale's Case, Cro. Eliz. 182. » Brudnel's Case, 5 Coke, Da. 10 Jackson v. EmWer, 14 Johns. (N. Y.) 198; Tnisdell v. Lehman, 47 N. J. Eq. 218, 20 AU. 391; Hunter v. Bryan, 5 Humph. (Tenn.) 47; Gray v. Packer. 4 Watts & S. (Pa.) 17; Jackson v. Van Hoesen, 4 Cow. (N. Y.) 325; Kearney V. Kearney, 17 N. J. Eq. 59; Wusthoff v. Dracourt, 3 Watts (Pa.) 240; Boze- man v. Bishop, 94 Ga. 459, 20 S. E. 11. So a life estate may be created by a reservation. Doe v. Grady, 2 Dev. (N. C.) 395; Hodges v. Spicer, 79 N. C. 223; Richardson v. York, 14 Me. 21G. Or by a quitclaim to a co-tenant in com- mon. McKinney v. Stacks, G Heisk. (Tenn.) 284. 11 See ante, p. 37. As to what words will pass only a life estate, see Corby T. Corby, 85 Mo. 371; Leapcr v. Neagle, 94 N. C. 338; Dew v. Kuehn. 64 Wis. 293, 25 N. W. 212; Lowrie v. Ryland, 65 Iowa, 584, 22 N. W. 686; Jones' Ex'rs V. Stills, 19 N. J. Eq. 324; Sheafe v. Gushing, 17 N. H. 508; Jossey v. White, 28 Ga. 2G5; Schaefer v. Schaefer, 147 111. 337, 81 N. E. 136; Robinson V. Robinson, 89 Va. 916, 14 S. E. 916. And cf. BeaU's Lessee v. Holmes. G Har. & J. (Md.) 205; Jackson v. WeUs, 9 Johns. (N. Y.) 222; Wheaton v. Andress, 23 Wend. (N. Y.) 452; Moore v. Dimond, 5 R. I. 121; In re Frothlng- ham, 63 Hun, 430, 18 N. Y. Supp. 695; Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; ' Kiene v. Gruehle, 85 Iowa, 312, 52 N. W. 232. 12 .Tackson v. Mancius, 2 Wend. (N. Y.) 357; Rogers v. Moore, 11 Conn. 553; BeU V. Twilight, 22 N. H. 500. 58 ESTATES AS TO QUANTITY CONVENTIONAL LIFE ESTATES. (Ch. 5 tate for the grantor's life. A man may take a life estate by im- plication, as by a devise of land to the testator's heirs after the death of B., from which it would be presumed that B. was to have the land during his life.^" But, if the devise is to a stranger after B.'s death, no such presumption arises, and the estate goes to the heir during B.'s life.^* Estates per Autre Vie. An estate for the life of another *' usually arises by one who is tenant for life assigning his interest to another, who thereby be- comes entitled to the land during the life of the grantor. It may, however, be expressly limited for the life of a third person. The one whose life limits the duration of the estate is called the "cestui qui vie." ^' INCIDENTS OF LIFE ESTATES. 37. The principal incidents of life estates are the folio-w- ing: (a) Life estates are subject to alienation, voluntary and involuntary (p. 59). (b) The tenant must pay the interest on incumbrances (p. 60). (c) Rent due from a lessee of the tenant is apportionable on the death of the tenant (p. 60). (d) The tenant cannot recover compensation for improve- ments or repairs (p. 61). (e) The tenant is entitled to estovers (p. 61). (f) There is a right to emblements on the death of a tenant for life, but he cannot claim them when he forfeits his estate (p. 61). 18 Barry v. Shelby, 4 Hayw. (Tenn.) 229; Haskins v. Tate, 25 Pa. St. 219; Nicholson v. Drennan, 35 S. C. 333, 14 S. E. 719. 14 1 Washb. Real Prop. (5th Ed.) p. 123. 1 B It may be for more than one life. Ante, p. 56. But, In four states. If more than two cestuis qui vie are named, the remainder nevertheless takes effect on the death of the two first named. 1 Stim. Am. St. Law, § 1422. Cf. Clark V. Owens, 18 N. Y. 434. By statute, 6 Anne, c. 18, If the one who claims an estate per autre vie cannot produce the cestui qui vie. It Is presumed that he is dead, and the estate Is terminated. i« 2 Bl. Comm. 258; Co. Lltt. 41b. § 37) INCIDENTS OF LIFE ESTATES. 59 (g) A tenant must not commit waste, — that is, any per- manent and material injury to the inheritance (p. 62). (h) Life estates are subject to merger (p. 66). The following discussion of the Incidents of life estates applies to legal as well as to conventional life estates. Alienation. A tenant for life has power to dispose of Ms interest in whole or in part, unless there is a condition in restraint, in the terms of his grant; " but he can give another no rights in the land which will extend beyond his life.^^ There was a common-law rule that a tenant for life forfeited his estate if he attempted to convey a greater interest than he owned, by a conveyance operating through transfer of possession, as by a feoffment in fee,^* because such a feoffment was a renunciation of tenure, and worked a disseisin. But this is not now the rule.^" Life estates are also subject to involuntary alienation, as for taxes and debts.*^ IT Criswell v. Grumbling, 107 Pa. St. 408; Hay ward v. Kinney, 84 Mich. 591, 48 N. W. 170. 18 Lehndorf v. Cope, 122 111. 317, 13 N. E. 505; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744; McLendon v. Horton (Ga.) 22 S. E. 45; Fields v. Bush, 94 Ga. G64, 21 S. E. 827. 18 2 Bl. Comm. 274; French v. Rollins, 21 Me. 372. See, also, Stump v. Findlay, 2 Rawle (Pa.) 168. This did not apply to conveyances under the statute of uses. Jackson v. Mancius, 2 Wend. (N. Y.) 357; Pendleton v. Van- devier, 1 Wash. (Va.) 381; Stevens v. Winship, 1 Pick. (Mass.) 318. Nor to a quitclaim in fee. Bell v. Twilight, 22 N. H. 500. Nor to a lease for years. Locke V. Rowell, 47 N. H. 46. 20 Stevens v. Winship, 1 Pick. (Mass.) 318; Rogers v. Moore, 11 Conn. 553; McCorry v. King's Heirs, 3 Humph. (Tenn.) 267; McKee's Lessee v. Pfout, 8 Dall. (Pa.) 486; McMichael v. Craig (Ala.) 16 South. 883. The conveyances which caused forfeitures were feoffment, fine, and recovery; but these are not now in use. 1 Dembitz, Land Tit. 108. 81 Roberts v. Whiting, 16 Mass. 186; Wheeler v. Gorham, 2 Root (Conn.) 828; Ehrisman v. Sener, 162 Pa. St. 577, 29 AU. 719; Thompson v. Murphy, 10 Ind. App. 404, 87 N. E. 1094; American Mortg. Co. of Scotland v. Hill, 92 Ga. 297, 18 S. E. 425. But see, as to the life tenant's liability for special assessments, Stilwell v. Doughty, 2 Bradf. Sur. (N. Y.) 311. 60 ESTATES A3 TO QUANTITY CONVENTIONAL LIFE E3TATE3. (Ch. 5 Interest on Incumbrances. It is the duty of the tenant to keep down the interest on in- cumbrances, but he is not bound to pay off the principal;** and, if he does, he is entitled to contribution from the reversioner or remainder-man." Apportionment of Rent. If the tenant for life makes a lease reserving rent and dies be- fore the day the rent is due, the rent is apportioned, and his per- sonal representative can recover the amount due when the lessor dit'd.^* The common-law rule was otherwise, however, until the statute of 11 Geo. II. c. 19, § 15. aa Thomas v. Thomas, 17 N. J, Eq. 350; Cogswell v. Cogswell. 2 Edw. Ch, (N. Y.) 231; Uunt v. Watkins, 1 Humph. (Tenn.) 498; McDonald v. Heylin, ^ Phila. (Pa.) 73; Barnum v. Barnum, 42 Md. 251. If he fails to pay the in- terest, he Is liable to the remainder-man for any damage suffered. Wade v. Malloy. 16 Ilun (N. Y.) 22G. The life tenant must also pay taxes. Jenks v. Horton, 96 Mich. 13, 55 N. W. 372; Watkins v. Green, 101 Mich. 493, 60 N. W. 44; Bone t. Tyrrell, 113 Mo. 175, 20 S. W. 796; Disher v. Disher, 45 Neb. 100. 63 N. W. 368; Chaplin v. IT. S., 29 Ct. CI. 231; Varney v. Stevens, 22 Me. 331; Patrick v. Sherwood, 4 Blatchf. 112, Fed. Cas. No. 10,804; Fleet v. Dor- land, 11 How. Pi-ac. (N. Y.) 489; Johnson v. Smith, 5 Bush (Ky.) 102. But see Cochran v. Cochran, 2 Desaus. Eq. (S. C.) 521. But he Is entitled to con- tribution on assessments for permanent improvements. Reyburn v. Wallace, 93 Mo. 326, 3 S. W. 482; In re Bradley's Estate, 3 Pa. Dist. R. 359; Bobb v. Wolff, .54 Mo. App. 515; Moore v. Simonson (Or.) 39 Pac. 1105. Cf. In re Wy- att's Estate, 9 Misc. Rep. 285, 30 N. Y. Supp. 275 (insurance premiums). 2 3 Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4,972; Hunt v. Watkins, 1 Humph. (Tenn.) 498; Daviess v. Myers, 13 B. Mon. (Ky.) 511. Cf. Stevens v. Melcher, 80 Hun, 514, 30 N. Y. Supp. 025. The tenant's share is found by com- puting the present worth of the interest payments which he would have to make during the probable existence of his life according to tables of mor- tality. The Carlisle tables are generally used. Abercrombie v. Riddle, 3 Md. Ch. 320; Bell v. Mayor, etc., 10 Paige (N. Y.) 49; Foster v. Hilliard, supra; Atkins V. Kron, 8 Ired. Eq. (N. C.) 1; Swaine v. Ferine, 5 Jolms. Ch. (N. Y.) 482; Cogswell v. Cogswell, 2 Edw. Ch. (N. Y.) 231. But see note to Estabrook V. Hapgood, 10 Mass. 313; Dorsey v. Smith, 7 Har. & J. (Md.) 345, 367. There was formerly an arbitrary rule that he should pay one-third, and ttiis seems to still exist in South Carolina. Wright v. Jennings, 1 Bailey (S. C.) 277. Cf. Brand v. Rhodes' Adm'r (Ky.) 30 S. W. 597. 2* Borie V. CYissman, 82 Pa. St. 125; Price v. Pickett, 21 Ala. 741. At com- mon law there was no apportionment of rent. Clun v. Fisher, Cro. Jac. 309; Rockingham y. Penrice, 1 P. Wms. 177; Jenner v. Morgan, Id. 391; Norrls v» § 37) INCIDENTS OF LIFE ESTATES. 61 Improvements cmd Repairs. The tenant for life can recover nothing for improvements which he makes on the estate; *' but he may put buildings into tenant- able condition at the expense of the estate, or complete a house be- gun by the testator under whom he holds."* He is, however, bound to make ordinary repairs at his own expense.'^ Estovei's. A tenant for life has a right to cut timber growing on the land to use for certain purposes. This is called the right to estovers or botes, and comprises: (1) House bote, or the right to cut wood for repairing buildings and to use for fuel,^^ the latter sometimes being termed fire bote; (2) plough bote, or the right to cut wood for repairing farming implements; *' and (3) hay bote, or the right to cut wood for repairing fences.^" EmhleTnents. The personal representative of a tenant for life is entitled to emblements,^^ since the tenant's estate is one of uncertain dura- tion. '^ But the tenant himself cannot claim them if he forfeits his Harrison, 2 Madd. 268. This was changed by the statute of 11 Geo. II. c. 19, § 15. The statute has been re-enacted In some states (1 Stim. Am. St. I^w, § 2027), and followed in others. 2 5 Hagan v. Varney, 147 111. 281, 35 N. E. 219; In re Rennie's Estate, 10 Misc. Rep. 0.38, 32 N. Y. Supp. 225; Thurston v. Dickin-son, 2 Rich. Eq. (S. C.) 317; Merritt v. Scott, 81 N. C. 385; Corbett v. Laurens, 5 Rich. Eq. (S. C.) 301; Elam V. Parkhill, 60 Tex. 581; Wilson v. Parker (Miss.) 14 South. 204; Van Bibber v. Williamson, 37 Fed. 756. Cf. Austin v. Stevens, 24 Me. 520; Dates- man's Appeal, 127 Pa. St. 348, 17 Atl. 1086, 1100; Caldwell v. Jacob (Ky.) 27 S. W. 86. 26 Sohier v. Eldredge, 103 Mass. 345; Parsons v. Winslow, 16 Mass. 361. Cf. Brough V. HJggins, 2 Grat. (Va.) 408; In re Laytin (Surr.) 20 N. Y. Supp. 72. 27 In re Steele, 19 N. J. Eq. 120; Kearney v. Kearney, 17 N. J. Eq. 59; Wil- son V. Edmonds, 24 N. H. 517; Brooks v. Brooks, 12 S. C. 422. 28 White V. Cutler, 17 Pick. (Mass.) 248; Webster v. Webster, 33 N. H. 18; Smith V. Jewett, 40 N. H. 530: Smith v. Poyas, 2 Desaus. Eq. (S. C.) 65. But see Padelford v. Padelford, 7 Pick. (Mass.) 152. Cf. Loomls v. Wilbur, 5 Ma- son, 13, Fed. Cas. No. 8,498. 29 2 Bl. Comm. 35, 122. 80 Elliot V. Smith, 2 N. H. 430. • 1 See ante, p. 8. «2 Perry v. Terrel, 1 Dev. & B. Eq. (N. C.) 441; Hunt v. Watklns, 1 Huraph. 62 ESTATES AS TO QUANTITY — CONVENTIONAL LIFE ESTATES, (Ch. 5 estate by not performing a condition," though he can if his in- terest is tei-minated without his fault."* The lessee of a tenant for life is entitled to emblements; " and so, also, would the lessee of one who held during her widowhood, but terminated her estate by marriage. >•« If she was herself in possession, she could not claim emblements, because she terminated the estate by her own act." Waste. Another important incident of an estate for life, and of all par- ticular estates, is that the tenant must not commit waste; "» ^jj^t is, to cause or suffer any permanent and material injury to the inheritance. In other words, the one who is next entitled to the premises has a right to have them come to him without their value being impaired by any destruction of the corporeal thing.^^ It may be provided, at the creation of the estate, that the tenant shall not be liable for waste, or, that he shall hold "without impeachment for waste." *° But even then wanton injury, or "equitable waste," will be restrained by a court of chancery.*^ Injury which occurs from positive acts of the tenant is "voluntary waste," and injury (Tenn.) 498; Polndexter v. Blackburn, 1 Ired. Eq. (N. O.) 286; Spencer v. Lewis, 1 Houst, (Del.) 223. But cf. Reiff v. Reiff, 64 Pa. St. 134. 88 2 Bl. Coram. 123; Oland's Case, 5 Coke, 116a. Cf. Debow v. Colfax, 10 N. J. Law, 128; Bulwer v. Bulwer, 2 Barn. & Aid. 470. 8 4 Price V. Pickett, 21 Ala. 741; King v. Whittle, 78 Ga. 482. 8 5 King V. Poscue, 91 N. C. 116. 86 2 Bl. Comm. 124. 8 7 Hawkins v. Skeggs' Adm'r, 10 Humph. (Tenn.) 31; Oland's Case, 5 Coke, 116a. 88 The restriction applied only to a tenant in dower and curtesy until the stat- ute of Marlebridge, 52 Hen. 111. c. 23. But a tenant In tail after possibility of Issue extinct is not liable for waste. Ante, p. 52. 8 9 Proffitt V. Henderson, 29 Mo. 327; Sackett v. Sackett. 8 Pick. (Mass.) 309; Dejarnatte v. Allen, 5 Grat. (Va.) 499; Huntley v. Russell, 13 Q. B. DIv 572 588. *o 2 Bl. Comm. 283; Pyne v. Dor, 1 Term R. 55; Bowles' Case, 11 Coke, 79b. See, also, Gent v. Harrison, 1 Johns. Eng. Ch. 517; Turner v. Wright, 2 De Gex^ F. & J. 234. 41 Vane v. Lord Barnard, 2 Vern. 738; Roet v. Somervllle, 2 Eq. Cas. Abr. 759; Lushlngton v. Boldero, 15 Beav. L And see Marker v. Marker, 4 Eng. Law & Eq. 95. § 37) INCIDENTS OP LIFE ESTATES. 63 resulting from his neglect of duty is "permissive waste," — ^for ex- ample, permitting a building to fall down from want of repair, as distinguished from pulling it down, which would be permissive waste.** The English rules as to waste are to a large extent inapplicable in this country, owing to the difference in circumstances, es- pecially as to cutting down trees and the use of land; *^ and what would be waste in a thickly-settled Eastern state might not be in a new and undeveloped region.** In very many cases it is a ques- tion of fact for the jury whether the acts complained of are wrong- ful, as being injurious to the estate.*' Same — Husbandry. If one holding farming lands as tenant for life cultivates in a way not sanctioned by the rules of good husbandry, he is guilty of waste.** For instance, he should not exhaust the land by con- stant tillage, without change of crop or the use of fertilizers,*^ nor should he permit brush to choke up meadow land.** But it would not, as in England,*® be waste to change the character of the land, if no substantial injury results, as by plowing up pasture land."^" *2 2 Bl. Comm. 281. As to permissive waste by a tenant at will, see Coun- tess of Shrewsbury's Case, 5 Colie, 13. And see Heme v. Bembow, 4 Taunt. 764. Of. Moore v. Townshend, 33 N. J. Law, 284. *8 Keeler v. Eastman, 11 Vt. 293; Pynchon v. Stearns, 11 Mete. (Mass.) 30i; Jackson v. Brownson, 7 Johns. (N. Y.) 227; Lynn's Appeal, 31 Pa. St. 44; Drown v. Smith, 52 Me. 141; Crockett v. Crockett, 2 Ohio St. 180; Kidd V. Dennison, 6 Barb. (N. Y.) 9; Findlay v. Smith, 6 Munf. (Va.) 134. And see Carpenter, J., In Morehouse v. Cotheal, 22 N. J. Law, 521. ** Morehouse v. Cotheal, 22 N. J. Law, 521; Webster v. Webster, 33 N. EL 18; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308. 4 5 Webster v. Webster, 33 N. H. 18; King v. Miller, 99 N. 0. 583, 6 S. E. 660. *8 Sarles v. Sarles, 3 Sandf. Oh. (N. Y.) 601. Of. Jackson v. Andrew, 18 Johns. (N. Y.) 431. *T Sarles v. Sarles, 3 Sandf. Ch. (N. Y.) 601. *8 Clemence v. Steere, 1 R. I. 272. *9 Keepers, etc., of Harrow School v. Alderton, 2 Bos. & P. 80. 60 Pynchon v. Stearns, 11 Mete. (Mass.) 304; Clemence v. Steere, 1 R. L 272; Alexander v. Fisher, 7 Ala. 514. Of. Chase v. Hazelton, 7 N. H. 171. 6i ESTATES A3 TO QUANTITY CONVENTIONAL LIFE ESTATES. (Ch. 5 Same — Trees. We have seen that the tenant may take a reasonable amount of wood for estovers,"^ and the right may extend further as to the "clearing" of woodland for purposes of cultivation."^' Whether ifhis or any other cutting of timber is waste depends in each case on the customs of the locality and the condition of the estate."*' A. tenant for life cannot cut timber to sell,"** except in cases where that has been the way of enjoying the land.**" Same — Mln-es and Quarries. Whether or not it is waste to take minerals, stone, clay, or gravel depends on the previous use of the premises. If such has been the manner of enjoying the profits of the estate, the tenant may continue it; '" but he must not open new mines or quarries.'*'' Nor can the one entitled to the next estate work the mines and 81 Ante, p. 61. Padelford v. Padelford, 7 Pick. (Mass.) 152; Calvert v. Rice. 91 Ky. 5d3, 16 S. W. 3.51; Gardiner v. Derrinj?, 1 Paige (N. Y.) 573; Smith V. Jewett, 40 N. H. 530; MUes v. Miles, 32 N. H. 147. B2 Drown v. Smith, 52 Me. 141; Ward v. Sheppard, 2 Hayw. (Tenn.) 461; Owen V. Hyde, 6 Yerg. (Tenn.) 334; Dishor v. Disher, 45 Neb. 100, 63 N. W. 368; Davis v. Cldrk, 40 Mo. App. 515. But cf. Chase v. Hazelton, 7 N. H. 171. And can sell the wood so cut. Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; Keeler v. Eastman, 11 Vt. 293; Crockett v. Crockett, 2 Ohio St. 180; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308. 58 McCullough V. Irvine's Ex'rs, 13 Pa. St. 438; Keeler v. Eastman, 11 Vt. 293. Cf. Parkins v. Coxe, 2 Hayw. (N. C.) 339; Carr v. Carr, 4 Dev. &. B. (N. C.) 179. B4 Johnson v. Johnson, 18 N. H. 594; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308; Miller v. Shields, 55 Ind. 71; Parkins v. Coxe, Mart. & H. (N. C.) 517; Clemence v. Steere, 1 R. I. 272; Kidd v. Dennison, 6 Barb. (N. Y.) 9. 6 5 Clemence v. Steere, 1 R. I. 272; Ballentine v. Poyner, Mart. & H. (N. C.) 268; Den v. Kinney, 5 N. J. Law, 552. And cf. Carr v. Carr, 4 Dev. &. B. (N. 0.) 179. See, also, the exception in note 44. 58 Astry V. Ballard, 2 Mod. 193; Neel v. Neel, 19 Pa. St. 323; Sayers v. Hoskinson, 110 Pa. St. 473, 1 Atl. 308. Cf. Russell v. Bank, 47 Minn. 286, 50 N. W. 228; Billinss v. Taylor, 10 Pick. (Mass.) 460; Reed's Ex'rs v. Reed, 16 N. J. Eq. 248; Lynn's Appeal, 31 Pa. St. 44. And see Irwin v. Covode, 24 Pa. St 162. The life tenant is allowed new shafts Into old veins. Crouch v. Puryear, 1 Rand. (Va.) 258; Clavering v. Clavering, 2 P. Wms. 388. 6T Gaines v. Mining Co., 32 N. J. Eq. 86; Owings v. Emery, 6 Gill. (Md.) 260. Cf. Coates v. Chpover, 1 Cow. (N. Y.) 460; Williamson v. Jones, 39 W. Va. 231, 19 S. E, 436; Childs v. Railway Co., 117 Mo. 414, 23 S. W. 373. c 37) INCIDENTS OF UFB BSTATK8. 60 quarries on the land during the continuation of the Me tenant's Interest without the consent of the latter.'" Same — Buildings and Fences. Formerly there was a very strict rule that almost any alteration in a building would be waste; " but this is now relaxed, and the general test is applied as in other cases,— the question being, has the value of the reversion been impaired? •» It would, of course, be waste for the tenant to remove things which he had mad'e real fixtures by annexation." But waste in respect to buildings may be committed by suffering them to become ruinous for want of re- pair.«2 This is almost the only case in which permissive waste oc- curs. As already stated," wood may be cut to keep the build- ings ?n^ fences in repair; but the duty to repair exists when there is no wood.'* However, the tenant is not bound to put in repair buildings which are ruinous when he takes the premises.®'^ The tenant is liable for negligent, but not for accidental, fires.«« So/me—Liahilivy for Waste hy Strangers, etc. The tenant is liable for waste committed by strangers," but not for injury resulting from act of God or the law or the public enereiy '^ »• See Kler r. Peterson, 41 Pa. St. ^7. •» This was on the ground that such chancre tended to destroy evidpnces of Identity. HunUey t. Russell. 13 Q. B. Div. 572. 588. it made no difference that gnch changes increased the value of the buUding. City of London v. Greyme, Cro Jac. 181. Cf. Douglass v. Wiggins, 1 Johns. Ch. 435. •0 Agate v. Lowenbein, 57 N. Y. 604; Doe v. Earl of Burlington. 5 Bam. & AdoL 507; Young v. Spencer, 10 Bam. & C. 145; Hasty v. Wheeler, 12 Me. 434. • 1 McCnllough V. Irvine, 13 Pa. St. 4;«; Dozier v. Gregory, 1 Jones (N. C.) 100. Cf. Clemence t. Steere, 1 R. I. 272. •J Abbot of Sherboume's Case, Y. B. 12 Hen. IV. 6. Cf. Dozier v. Gregory, 1 Jones (N. C.) 100. •» Ante, p. 61. •* Co. Litt. 53a. • » Wilson V. Edmonds, 24 N. H, 517; Clemence v. Steere, 1 R. L 272, •e Anon., Fltzh. Abr. "Waste," pL 30; Cornish v. Stratton, 8 B. Mon. (Ky.) 686. 67 Fay v. Brewer, 3 Pick. (Mass.) 203; Cook v. Transportation Co., 1 Denio (N. Y.) 91; Austin t. Railway Co., 25 N. Y. 334. Cf. Beers v. Beers, 21 Mich. 464. •• Co. Lltt 53a, 54a; 1 Washb. Real Prop. (5th Ed.) 156; Pollard v. Shaiiffer, BEAX. PBOP. — 6 66 leSTATBS AS TO QUANTITY CX)NVBNTIONAL LIFE ESTATES. (Ch. 5 Same — Remedies for Waste, When waste has been committed, compensation may be recov- ered for the injury done; or, if it is threatened, it may be re- strained by injunction." When trees, ore, etc., have been wrong- fully severed, they belong to the reversioner or remainder-man as personal property, and he can maintain appropriate actions there- for.^" There were formerly many technical rules arising out of the common-law actions for waste, but the matter is now largely changed by statute.''^ By and against whom actions for waste lie is also a subject of statutory regulation.^* By the statute of Gloucester '* a penalty of treble damages and forfeiture of the place wasted was imposed, and forfeiture and double or treble damages are imposed by statute in many states.^* Merger. Merger is the absorption of a less estate into a greater where two estates meet in the same person. Thus, where an estate in fee simple and an estate of less duration, such as a life estate or an es- tate for years, meet in the same person, the smaller interest is said to be "merged" — literally drowned — in the greater and all-com- 1 DaU. (Pa.) 210. Cf. AttersoU v. Stevens, 1 Taunt 198; Huntley v. Russell, 13 Q. B. Div. 572. «» See Fetter, Eq. 299; Obrlen v. Obrien, Amb. 107; Perrot v. Perrot, 3 Atk. 94. See, also, Smyth v. Carter, 18 Beav. 78; Cahn v. Hewsey, 8 Misc. Rep. 3S4, 29 N. Y. Supp. 1107; Arment v. Hensel, 5 Wash.. 152, 31 Pac. 4(>4; Web- ster V. Peet, 97 Mich. 326, 56 N. W. 558; Perry v. Hamilton, 138 Ini 271, 35 N. E. 830. Cf. Jackson v. Andrew, 18 Johns. 431. TO Whitfield v. Be wit, 2 P. Wms. 240; Castlemaia v. Craven, 22 Vin. Abr. 523, pL IL And see Bewick v. Whitfield, 3 P. Wms, 267; Bateman v. Hotch- kin, 31 Beav. 486; Honywood v. Honywood, L. R. 18 Eq. 306; Nicklase v. Mor- rison, 56 Ark. 553, 20 S. W. 414; Stowell v. Waddingham, 100 CaL 7, 34 Pac. 436. Ti See 1 Washb. Real Prop. (5th Ed.) p. 157; Smith v. Mattingly (Ky.) 28 S. W. 503. 72 1 Stim. Am. St. Law, § 1353. And see Dodge v. Davis, 85 Iowa, 77, 52 N. W. 2; Hatch v. Hatch, 31 Wkly. Law BuL 57; Donald v. Elliott, 11 Misc. Rep. 120, 32 N. Y. Supp. 821- 73 6 Edw. L c. 5. T4 1 Stim. Am. St Law, § 1332; Smith v. Mattingly (Ky.) 28 S. W. 503. But cf. Danziger v. Silberthau (Super. Ct) IS N. Y. Supp. 350. §§ 38-39) ESTATES PER AUTRE VIE. 67 prising one.^' When a life tenant becomes the heir of the one who has the reversion or remainder in fee, or if he conveys his life interest to the owner of such reversion, a merger takes place, and the smaller estate has lost its separate existence.^' Where two es- tates meet in the same person and in the same right, it is imma terial, so far as merger is concerned, whether the union is pro- duced by operation of law or by act of party. But where the two estates vest in the same person in different rights by operation of law, merger will not ensue. When the union occurred by act of party equity will not allow the estates to merge, though they would do so at common lawJ^ There will be no merger unless the two estates are of the same character. Therefore, an equitable life estate will not merge in a legal fee simple.^* A joint interest in a life estate will not merge in the reversion in severalty owned bj one of the co-tenants. ''* If an estate per autre vie is assigned to one who is a tenant for his own life, it will merge, since, as has been seen, the estate for his own life is greater than the estate pei, autre vie,** SAME— ESTATES PER AUTRE VIE. 38. When a tenant per autre vie dies before the cestui que vie without having disposed of his estate, the residue of the estate goes to his heirs, if it was given to the tenant and his heirs; otherwise, tho T» Bradford v. Griffin, 40 S. a 48S, 19 S. E, 76; Hovey v. Nellis, 98 MicJx 374, 57 N. W. 2.55. 76 2 BL Comm, 177; Co. Litt. 41b; Mudd v. Mullican (Ky.) 12 S. W. 2635 Webster v. Gilman, 1 Story, 499, Fed. Cas. No. 17,335; Gary v. Warner, 6?. Me, 571; Davis v. Townsend, 32 S. G 112, 10 S. E. 837; Bennett v. Trustee* of M. E. Church, 66 Md. 36, 5 Atl. 291; Shelton v. Hadlock, 62 Conn. 143f Han-ison v. Moore, 64 Conn. 344, 30 Atl. 55. But see Browne v. Bockover. SA Ya. 424, 4 S. E. 745; In re Butler's Estate, 14 Pa. Go. Ct. R. 667. TT Edw. Prop. Land (2d Ed.) 130. "Martin v. Pine (Sup.) 29 N. Y. Supp. 995. For equitable estates, se« post, p. 251. 7 9 See Jameson v. Hayward, 106 Gal. 682, 39 Pac 1078. And see post, ji- 332, for joint estates. »o Boykin v. Anerum, 28 S. G. 486, 6 S. E. 305. But see Rosse's Case, ft: Coke, 13a; Snow v. Boycott [1892] 3 Ch. 110. 68 E3TATK3 AS TO QUANTITY CONVENTIONAL UFK ESTATES. (Ch. 5 personal representative takes it. Before the statute of 29 Car. II., the residue of the estate belonged to the one first taking possession, who was called the " general occupant." 39. The incidents of life estates in general attach to es- tates per autre vie. There was a common-law rule that, if the tenant of an estate per autre vie died before the cestui que vie, whoever first took posses- sion of the land could hold it for the remainder of the term. Such a person was called a "general occupant." " If, however, the ten- ant had leased or assigned his estate,®* or words of limitation, as heirs or executor, had been added in the creation of the estate, then these were entitled to the residue, and they were called "spe- cial occupants." " But, by the statute of 29 Car. II.,** general occupancy was abolished, and, when a tenant per autre vie died without having disposed of his estate, if the term was not limited to the heirs, then the executor took the residue, holding it as as- sets for the payment of debts." This act also gave the owner power to dispose of it by will." The usual incidents of a life es- tate attach to an estate per autre vie.*' And in some states ajjpor- tionment of rent is provided for by statute.*' «i Co, Lltt. 41b; 2 Bl. Comm. 258. ■«2 Skelliton v. Hay, Cro. Jac. 554. «3 Mosher v. Yost, 33 Barb. (N. Y.) 277; Salter v. Boteler, Moore, 664; Bowles V. Poore, Cro. Jac. 282; Low v. Burron, 3 P. Wms. 262; Doe v. Luxton, 6 Teiuj II. 289; Atkinson v. Baker, 4 Term R. 229; Doe v. llobinson, 8 Barn. & a 296. •* Chapter 3. And see 1 Stim. Am. St Law, § 1310. «» Doe T. Lewis, 9 Mees, & W. 662. And the balance for the estate. Ripley T. Waterworth, 7 Ves. 425. But see Wall v. Byrne, 2 Jones & L. 118. 8« See, also, 1 Stlm. Am. SL Law. S 1335. •T Co. LitL 41b, • « 1 Stim. Am. St. Law, S 2023. { 40) ESTATES A3 TO QUANTTTY LEGAL LIFE ESTATES. 69 CHAPTER VI. ESTATES AS TO QUANTITY (Ctontinued)— LEGAL LIFE ESTATES. 40-^. Legal Life Estates— Estates by Marriage. 42. Estate during Coverture. 43-44. Curtesy. 45. In What Estates. 46. Incidents. 47. How Defeated. 48. Statutory Changes. 49. Dower— Definition. 50. In What Estates. 51-52. Quarantine. 53. Assignment. 54. When Value Estimated. 55. Method of Diyision. 56. By Whom Assigned. 57. Recovery by Action. 68-59. Incidents, 60. How Defeated. 61. Statutory Changes. 62. Homestead. 63. Who Entitled to Homestead. 64. Duration of Exemption. 65. In What Estates. 66-67. Amount of Exemptiou. 68. How Acquired- 69. Selection, 70. How Lost. 71. Privileged Debts, 72. Federal Homestead Act. I^EGAL LIFE ESTATES— ESTATES BY MARRIAGE. 40. In American la"w all legal life estates are estates by marriage, except : EXCEPTION— With the possible exception of estates tail after possibility of issue extinct. JO ESTATES A9 TO QUANTITY — LEGAL LIFE ESTATES. (Ch. 6 41. The legal life estates are : (a) Estates during: coverture (p. 70). (b) Curtesy (p. 73). (c) Dower (p. 83). (d) Homestead (p. 112). Legal life estates have already been defined as those created by act of law, and in our system of law tliese estates all arise out of the marital relation, with the possible exception of an estate tail after possibility of issue extinct, which is by some classed as a legal life estate, though the correctness of such classification seems doubtful. The partnership ownership of real property by husband and wife, which exists under the community system, comes up for consideration more properly under joint estates,^ and is only men- tioned here because it is in a sense an estate by marriage.' ESTATE DURING COVERTURE. 42. The estate during coverture is the right which the husband acquires at common law to the chattels real of his wife which he reduces to possession, and to the use and profits of her realty. QUAIilFICATION— This right of the husband is quali- fied by : (a) The doctrine of separate property. (b) By statutory changes in nearly all the states. By the rules of the common law, a husband acquired an interest in his wife's lands then owned or acquired during their joint lives, which was called an "estate during coverture." " This interest 1 Post, p. 3o2. The joint interest of husband and wife, called an "estate in entiioty," will be considered later, p. oJT. 2 Parties In contemplation of marriage may by contract fix the rights which each shall hare in the property of the other during life, or which the sur- vivor shall have in the property of the other after his or her decease. Des- noyer v. Jordan, 27 Minn. 295, 7 N. W. 140. « His Interest is a life estate, because it may last during his Ufe; i. e. if he •hould die before his wife. Co. Litt 351a (ButL & H. Notes) note 1; Babb v. ESTATE DURING COVERTURE. 71 gave him complete ownership of her chattels real, provided he ai>- propriated them to his use during his wife's life.* They were lia- ble for his debts,"* and he could sell, mortgage, or dispose of them without her consent; • but, if no such disposition of the chattels real was made, and she survived him, then they were hers abso- lutely.'^ As to her real estate proper, except future estates,^ the husband had a right to the use and profits of it » until the mar- riage was terminated by death or divorce;^** and this right ex- cluded any control by the wife during his life. The husband could collect the rents and sue in his name for any injury to the profits," but for injuries to the corpus of the estate it was necessary to join the wife.^2 He and his lessees were entitled to emblements.^* At common law, although the husband, being a tenant for life, could not commit waste,^* still the wife's remedy was imperfect, Perley, 1 Me. 6; Mdvln v. Proprietors, 16 Pick. (Mass.) IGl; Nunn's Adm'rs V. Givhan's Adm'r, 45 Ala. 370. * Riley's Adm'r v. RUey, 19 N. J. Eq. 229; Packer v. Wyndham, Prec. Ch. 412; Sym's CJase, Cro. Eliz. 33; Loftus' Case, Id. 279; Grute v. Locroft, Id. 287; Daniels v. Richardson, 22 Pick. (Mass.) 565. 6 Mattocks V. Stearns, 9 Vt 326. 8 Meriwether v. Booker, 5 Litt. (Ky.) 254; Appleton, C. J^ In Allen t. Hooper, 50 Me. 374; Robertson v. Norris, 11 Q. B. 916. Bnt not by will, if he die first Ck). Litt. 351a, 7 Co. Litt. 351a; Riley's Adm'r v. Riley, 19 N. J. Eq. 229. 8 See post, p. 278. 8 Chancey v. Strong, 2 Root (Conn.) 369; Burleigh v. Coffin, 22 N. H. 118; Lucas V. Rickerich, 1 Lea (Tenn.) 726; Royston v. Royston, 21 Ga, 161; Bishop V. Blair, 36 Ala. 80; Gray v. Mathis, 7 Jones (N. C.) 502; Meriwether V. Howe, 48 Mo. App. 148. And he may assign his right Edrington v. Har- per, 3 J. J. Marsh. (Ky.) 353; Bailey v. Duncan, 4 T, B. Mon. (Ky.) 256. 10 Co. Litt 351a; Burt v. Hurlburt, 16 Vt 292; Barber v. Root 10 Mass. 260. Separation does not terminate his right Haralson y. Bridges, 14 IlL 37; Van Note v. Downey, 28 N. J. Law, 219. 11 Decker v. Livingston, 15 Johns. (N. Y.) 479; Mattocks v. Stearns, 9 Vt 326; Fairchild v. Chastelleux, 1 Pa. St 176; Fairchild v. Ohaustelleux, 8 Watts (Pa.) 412; Dold v. Geiger's Adm'r, 2 Grat (Va.) 98. 12 2 Kent Comm. 131; Melvin v. Proprietors, 16 Pick. (Mass.) 161; Babb V. Perley, 1 Me, 6; Bratton v. Mitchell, 7 Watts (Pa.) 113. 13 Bennett v. Bennett, 34 Ala. 53; Stroebe v. Fehl, 22 Wis. 337; Spencer V. Lewis, 1 Houst (Del.) 223. 14 Stioebe v. Fehl, 22 Wis. 337, 72 ESTATKS A3 TO QUANTITY LEGAL LIFE ESTATES. (Ch 6 becanse she could not sue him.^* But he migrht be restrained by injunction.** When waste was committed by the husband's as- si-^m-e, tills difficulty as to the remedy did not exist.*'' Full power of alienation, including liability for debts, resided in the husband to the extent of his life interest," but he was not allowed to prej- udice his wife's inheritance in any way.*' Eijuitahl-e Doctrine — Separate Estate. As to chattels real and personal property of the wife in general, courts of equity adopted a rule that, when a husband sought their aid in reducing such property to his possession, they might compel him to settle a reasonable amount for the support of the wife and her children. This was called her "equi+y to a settlement." '• So courts of equity allow a wife to own and manage her land as if she were unmarried whenever it is settled on her in trust for her "sole and separate use." ** Other expressions are also adequate to effect the purpose." i» Davis V. Gilliam, 5 Ired. Eq. (N. a) 308; Babb v. Perley, 1 GreenL (Me.) 6. Cf . 1 Bish. Mar. Worn. 393. i« See Mellen, C. J., in Babb v. Perley, 1 GreenL (Me.) 9. Cf. Stroebe v. Fehl, 22 Wis. 337. IT Stroebe v. Fehl, 22 Wis. 337; Davis v. Gilliam, 5 Ired. Eq. (N. C.) 308; D*Jamatte v. Allen, 5 Grat. (^''a.) 499. Cf. Ware v. Ware, 6 N. J. Eq. 117. isTrask ▼. Patterson, 29 Me. 499; Butterfield v. Beall, 3 Ind. 203; Cole- man V. Satterfield, 2 Head (Tenn.) 259. 19 Butterfield v. Beall, 3 Ind. 203; Coleman v. Satterfield, 2 Head (Tenn.) 2.59. «o Barron v. Barron, 24 Vt. 375; Hall v. Hall, 4 Md. Ch. 283; White v. Gonld- In's Ex'rs, 27 Grat (Va.) 491; Beeman v. Cowser, 22 Ark. 429; Kenny v. Udall, 5 Johns. Ch. (N. Y.) 4G4. Cf. Wiles v. Wiles, 3 Md. L See, further, Schouler, Husb. & W. 5§ 160-162; Fetter, Eq. 37. «i Brandt v. Mlckle, 28 Md. 436; Beeman v. Cowser, 22 Ark. 429; Pollard V. Merrill, 15 Ala. 169; MoiTison v. Thistle, 67 Mo. 596; Porter v. Bank, 19 Vt 410. ii Prout V. R<3by, 15 WalL 471; Brandt v. Mickle, 28 Md. 436; Stuart v. Kissara, 2 Barb. (N. Y.) 493; Floumoy v. Floumoy, 86 Cal. 286, 24 Pac. 1012; Atwood v. Dolan, 34 W. Va. 563, 12 S. E. 688. Cf. Buck v. Wroten, 24 Grat fVa.) 250; In re Quinn's Estate, 144 Pa, St. 444, 22 Atl. 965. But for ex- pressions which are not sufficient, see Scott v. Causey, 89 Ga. 749, 15 S. E. 650; liart v. Leete, KM Mo. 315, 15 S. W. 976; Warren v. Costello, 109 Mo. §§ 43-44) CDBTE8Y. 73 Statutory Changes. The importance of the equitable doctrine is, however, much les- sened in this country by "Married Women's Acts" in all the states, which have made great changes in the law on this subject. In many states the husband's estate during coverture is abolished, and the wife holds her realty as if a feme sole, while in others the changes have not been so complete." Reference must be made in each state to the statutes in force. CUBTESY. 43. By common laTv a husband is entitled to curtesy, which is an estate for the life of the husband in all the -wife's realty, provided the following conditions concur : (a) Valid marriage. (b) Issue born alive and capable of inheriting. (c) Seisin in deed of the wife during coverture. (d) Death of wife before husband. 44. Curtesy is said to be initiate w^hen issue is born alive, and consummate at the wife's death. The estate in the wife's realty which the husband acquired by marriage was an estate for their joint lives,^* and the death of either husband or wife terminated it, but the right of the husband in his wife's realty was enlarged, by the birth of issue capable of inheriting, into an estate for the husband's life.^" This was called 338, 19 S. W. 29. And see Gaston v. Wright, 83 Tex. 282, 18 S. W. 5TG; Pickens' Ex'rs v. Kniseley, 36 W. Va, 794, 15 S. E. 997; Cliff ton v. Anderson, 47 Mo. App. 35. *3 1 Stim. Am. St Law, art 642; Williams, Real Prop. (17th Ed.) Am. note, 373; 1 Wasbb. Real Prop. (5th Ed.) 346, note; Schouler, Husb. & W. 248; 2 Bish. Mar. Worn. 5. 2* Melvin y. Proprietors, 16 Pick. (Mass.) 161; Polyblank v. Hawkins, 1 Doug. 329. 2 5 Co. Utt § 30a; Schermerhon v. Miller, 2 Cow. (N. Y.) 439; Adair v. Lott, 3 Hill (N. Y.) 182; Rawlings v. Adams, 7 Md. 26; Foster v. Marshall, 22 N. H. 491; Buckworth v. Thirkell, 3 Bos. & P. 652, note. The husband and wife are seised jointly. Guion y. Anderson, 8 Humph. (Tenn.) 298; Junction E. Ca y. Harris, 9 Ind. 184; Wass v. Bucknam, 38 Me. 356. 74 ESTATES AS TO QUANTITY LEGAL LIFE ESTATES. (Ch. 6 "curtesy," or, in the older books, "an estate by the curtesy of England." " Marriage, The first requisite of curtesy is lawful marriage. If the mai^ riage was absolutely void, no curtesy will attach ; but if it is only voidable, and is not annulled during the wife's life, then the hus- band will take his curtesy.*^ Birth of Issxie — Ourtesy Initiate. The husband's right to curtesy is said to be initiate as soon as tlltre is issue of the marriage." But such issue must be capable of inheriting the mother's estate. Thus the birth of a daughter would give the husband no curtesy in lands of which the wife was tenant in tail male, because the daughter could not inherit the estate." And the issue must be bom alive ^° and during the wife's life; that is, it will not be sufficient, to give curtesy, if the mother die in childbirth, and the child is afterwards taken from the womb by the Ca?sarcan operation.'^ It is immaterial whether the birt± of issue is before or after the wife's estate is acquired." 2«2 BL CkHmn. 126; Alexander v. Warrance, 17 Mo. 228. There Is con- siderable difference of opinion as to the origin of curtesy. 1 Washb. Real Prop. (5th Ed.) p. 170; Wright, Ten. 192, 193; 2 Bl. Comm. 126. Many questions which might arise in connection with curtesy will be found dis- cussed In treating of dower (post, p. S3). The rules stated there may be applied by analogy to the estate by curtesy if similar questions should arise. 27 2 Bl. Comm. 127; 1 Washb, Real Prop. (5th Ed.) 172; Wells v. Thomp- son, 13 Ala. 793. 2 8 Schermerhom v. Miller, 2 Cow. (N. Y.) 439; Comer v. Chamberlain, 6 Allen (Mass.) 166; Ryan v. Freeman, 36 Miss. 175. A child bom out of wed- lock, but made legitimate by a subsequent marriage, gives curtesy. Hunter V. WTiitworth, 9 Ala. 965. 2 9 Day V. Cochran, 24 Miss. 261; Heath v. White, 5 Conn. 228, 236; Barker V. Barker, 2 Sim. 249; Sumner v. Partridge, 2 Atk, 46. 80 Brock V. Kellock, 30 Law J. Ch. 498; GofE v. Anderson, 91 Ky. 303, 15 S. W. 866; In re Winne, 1 Lans. (N. Y.) 508; Ryan v. Freeman, 36 Miss. 175; Doe T. Roe, 5 Houst (DeL) 14; Goff v. Anderson, 91 Ky. 303, 15 S. W. 866. 31 Co. Litt 29b; MarseUis v. Thalhimer, 2 Paige (N. Y.) 42. «2 Co. Litt 29b; 2 Bl. Comm. 128; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Comer v. Chamberlain, 6 Allen (^lass.) 166; Guion v. Anderson, 8 Humph. (Tenn.) 307; Heath v. White, 5 Comi. 236; Witham v. Perkins, 2 Me. 400. Cf. Hathon v. Lyon, 2 Mich. 93. |§ 43-44) cuETEST. 75 If curtesy has once become initiate, it will not be defeated by the subsequent death of the issue, either in the mother's lifetime or after her death." In several states the birth of issue is made un- necessary by statute,^* and in Pennsylvania the husband has cur- tesy if the issue, had any been bom, could have inherited." Seisin of Wife, By the common-law rule, in order that the husband might have curtesy, it was essential that the wife be seised in deed of fact,^'' or, less accurately, that she have actual seisin,'^ However, the rule as to seisin in deed has been relaxed," and seisin in law is held suffi- cient to give curtesy in many states, particularly in the case of the wife's taking by desceilt,*' and where the land is wild and unoc- cupied.*" The seisin of a lessee is regarded as seisin of the wife.*^ 3 3 Co. Litt 29b; 2 BL Comm. 128; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Heath v. White, 5 Conn. 235; Foster v. MarshaU, 22 N. H. 491. «* 1 Stim. Am. St Law, § 3301 B; Kingsley v. Smith, 14 Wis. 3G0. S5 BrighUy, Purd. Dig. Pa. "Intestates," 4. 3 6 The reason assigned for this is that the husband can at any time perfect the wife's seisin by making an entry. 2 Ham. BL Gomm. 233, note 32; Van- arsdall v. Fauntleroy's Heirs, 7 B. Mon. (Ky.) 401; Mercer v. Selden, 1 How. 37. For the difference between seisin in fact and in law, see ante, p. 31. 3 7 Co. Litt 29a; Stinebaugh v. Wisdom, 13 B. Mon, (Ky.) 467; Petty v. Molier, 15 B, Mon. (Ky.) 591; Mercer v. Selden, 1 How. 37; Den v. Demarest 21 N. J. Law, 525; Parker v. Carter, 4 Hare, 400, 416; Davis v. Mason, 1 Pet 507. Contra, Bush v. Bradley, 4 Day (Conn.) 298. 3 8 Wass v. Bucknam, 38 Me. 356; Reaume v. Chambers, 22 Mo. 3t5, 54; Bush V. Bradley, 4 Day (Conn.) 208; Kline v. Beebe, 6 Conn. 494; Mitchell's Lessee v. Ryan, 3 Ohio St 377; Powell v. Gossom, 18 B, Mon. (Ky.) 179; Ellsworth V. Cook, 8 Paige (N. Y.) 643; INIercer v. Selden, 1 How. 37; McCorry v. King's Heii-s, 3 Humph. (Term.) 267; Adams v. Logan, 6 T. B. Mon. (Ky.) 175; Wat- kins V. Thornton, 11 Ohio St 367; Ilabb v. Griffin, 26 Miss. 579; Childers v. Bumgamer, 8 Jones (N. C.) 297. 8 9 Borland v. Marshall, 2 Ohio St 308; Day v. Cochran, 24 Miss. 261; Adair v. Lott 3 Hill (N. Y.) 182; Jackson v. Johnson, o Cow. (N. Y.) 74; Chew v. Commissioners, 5 Rawle (Pa.) 1(50; Stephens v. Himae, 25 Mo. S49; Harvey v. Wickham, 23 Mo. 115; Carr v. Giveas, 9 Bush (Ky.) 679; Enls v. Dittey (Ky.) 23 S. W. 366; Merritf s Lessee v. Home, 5 Ohio St 307; Eager v. Pumivall, 17 Ch. Div. 115; Withers v. Jenkins, 14 S. C. 597; McKee v. Cottle, 6 Mo. App. 416. *o Jackson v. Sellick, 8 Johns. (N. Y.) 262; Green v. Liter, 8 Cranch, 249; Davis V. Mason, 1 Pet 503; Mettler v. MUler, 129 ILL 630, 22 N. E. 529; Barr *i See note 41 on following page. 76 ESTATKS AS TO QUANTITY LEGAL LIFB ESTATES, (Ch. 6 Possession by a grantee of the husband is suflQcient to give cur- tesy." The rule as stated above does not apply to incorporeal hereditaments, of which no actual possession is possible.*' Death of Wife — Curtesy Consummate. If the wife dies before the husband, his right to curtesy is at once consummate, and his estate vests immediately, without any assign- ment or other formality." Curtesy, having vested in the husband, cannot be defeated by a disclaimer." SAME— IN WHAT ESTATES. 45. The husband has curtesy in the following estates; (a) In estates of inheritance. (b) In determinable estates, when they are determined by a shifting use or executory devise, and in all cases until they are defeated. (c) In equitable estates. (d) In estates in expectancy, when they vest in posses sion during the wife's life. (e) In joint estates, except joint tenancies. Estates of Inheritance. A husband, as haa been seen, has curtesy only in estates of which the wife is seised during the coverture. The estate of the wife V. Galloway. 1 McLean, 47G, Fed. Cas. No. 1,037; Den v. Wanett, 10 Ired. (N. C.) 440; McDaniel v. Grace, 15 Ark. 4G5; Day v. Cochran, 24 Miss. 261; Clay T. White, 1 Munf. (Va.) 162; De Grey v. Richardson, 3 Atk. 469; I^wry's Le.ssce v. Steele, 4 Ohio, 170; Wells v. Thompson, 13 Ala. 793; Malone v. Mc- Laurin, 40 Miss. 161. Contra, Neely v. Butler, 10 B. Mon. (Ky.) 48. *i De Grey v. Richardson, 3 Atk. 469. Or of a tenant at sufferance. Tayloe 7. Gould. 10 Barb. (N. Y.) 3S8; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Lowry's Lessee v. Stt>ele, 4 Ohio, 170; Green v. Liter, 8 Cranch, 24.5; Powell v. Gossom, IS B. Mon. (Ky.) 179; Day v. CocJiran, 24 Miss. 261; Carter v. Williams, S Ired. Eq. (N. C.) 177; Wells v. Thompson, 13 Ala. 793. " Vanarsdall v. Fauntleroy's Heirs. 7 B. Mon. (Ky.) 40L *3 Co. LItt 29a; Davis v. Mason. 1 Pet. 507; Jackson v. Sellick, 8 Johns. (N. Y.) 262; Buck worth v. Thirkell, 3 Bos. & P. 652, note. " Co. Lltt 30a; 2 BL Comm. 128. And a disclaimer by him will not divest his estate. Watson v. Watson, 13 Conn, 83. *8 Watson V. Watson, 13 Conn. 83. § 45) CURTESY IN WHAT ESTATES. 77 must also be one of inheritance.** Otherwise, it would be at an end with the death of the wife, and so there would be nothing left out of which the husband could have curtesy. That is, a fee sim- ple or a fee tail in the wife gives the husband curtesy, but a life estate does not. Determinable Estates, There is considerable confusion in the cases as to whether there is curtesy in determinable estates, which, as will be seen,*^ are estates that may come to an end before their natural termination. As to such estates, it will be impossible to do more than to state the rule as it now seems to be recognized by the weight of author- ity. When the estate which arises and cuts off the wife's inter- est is a shifting use,** or executory devise,*' the husband has curtesy. When the limitation over takes effect in some other way, there is no right to curtesy."*** If the event which is to cut off the wife's estate has not happened at her death, the husband takes his curtesy until the happening of the event, no matter what the form of limitation of the estate may be. Equit•> Tbomp. Homest. & ExemiK r. 68) HOMESTEAD WHO ENTITLED TO HOMESTEAD. 113 SAME— WHO ENTITLED TO HOMESTEAD. 63. The homestead exemption can in most states be claimed only by the head of a family, but in a few states any resident of the state is entitled to the exemption. Most of the homestead acts provide for the exemption to one who Is the head of a family, or use words of equivalent meaning.'^" But in a few states all residents of the state are given the privilege, whether the head of a family or not.^'^* The best test to deter- mine whether one claiming a homestead is the head of a family seems to be the existence of a moral duty to support dependent persons living with hinL^^"^ A husband and wife are such a fam- ily, though they have no children.^^* When a husband owning a homestead dies, the right survives to the widow for her life,^" 2 83 Thomp. Homest & Exemp. 39. Alienage does not exclude one from the benefit of homestead exemptions. Cobbs v. Coleman, 14 Tex. 594; People v. McCl£^y, 2 Neb. 7; Dawley v. Ayers, 23 Cal. 108; Sproul v. McCoy, 26 Ohio St. 577. 264 Thomp. Homest & Exemp. 52; Myers v. Ford, 22 Wis. 134; 1 Minn. St. at Large 1873, p. 630, § 165; Const. Ark. 1SG8, art. 12, § 3; Greenwood v. Mad- dox, 27 Ark. 049; Hesnard v. Plunkett (S. D.) 60 N. W. 159. And see Bank of Versailles v. Guthrey, 127 Mo. 189, 29 S. W. 1004. 28B Thomp. Homest. & Exemp. 46; Connaughton v. Sands, 32 Wis. 387; Wade V. Jones, 20 Mo. 75; Blackwell v. Broughton, 56 Ga. 390; McMurray v. Shuck, 6 Bush (Ky.) Ill; MuUins v. Looke. 8 Tex. Civ. App. 138, 27 S. W. 926. But see Powers v. Sample, 72 Miss. 187, 16 South. 293. In some cases a legal duty to support has been made the test. Whalen v. Cadman, 11 Iowa, 226; Marsh v. Lazenby, 41 Ga. 153; Sanderlin v. Sanderlin's Adm'r, 1 Swan (Tenn.) 441. Instances are: A single man supporting his mother and dependent broth- ers and sisters. Marsh v. Lazenby, 41 Ga. 153; or dependent minor brothers and sisters, Greenwood v. Maddox, 27 Ark. 649; McMurray v. Shuck, 6 Bush (Ky.) Ill; or widowed sister, with her dependent children, Wade v. Jones, 20 Mo. 75; a widower supporting his widowed daughter and her children. Black- well v. Broughton, 56 Ga. 390; or a grown-up daughter, Cox v. Stafford. 14 How. Prac. (N. Y.) 519; single woman supporting her illegitimate child, Ellis T. White, 47 Cal. 73. 2S8 Kltchell v. Burgwin, 21 111. 40; Yv'ilson v. Cochran, 31 Tex. 680. 2 87 Thomp. Homest & Exemp. 454; Fleetwood v. Lord, 87 Ga. 592, 13 S. E. 574; Fore v. Fore, 2 N. D. 260, 50 N. W. 712. But see Go wan v. Fountain, 50 BEAL PROP.— 8 114 ESTATliS AS TO QUANTITY LEGAL LIFE ESTATES. (Ch. 6 though in some states she loses the homestead by a subsequent marriage.^" On the other hand, where the wife was the owner of the homestead, the surviving husband is in some states entitled to a continuation of the exemption, although there are no minor chil- dren."*' And a husband does not lose his homestead when his wife withdraws from the family under a decree of divorce."" But in several states it is held that a widow who is a nonresident is not entitled to the homestead."^ Children, during the life of the parent who owns the homestead property, have no rights against such parent.*" But, against a surviving parent who does not own the property, they have,*'^ and in most states the minor children Minn. 2G4, 52 N. W. S62; White's Adm'r v. White, 63 Vt. 577, 22 Atl. 602. But not In Georgia, unless there are minor children. Kldd v. Lesler, 46 Ga. 231. Some cases hold that the widow must elect between her dower and homestead, Butteiiield v. Wicks, 44 Iowa, 310; or between her distributive share and homestead. Egbert v. Egbert, 85 Iowa, 525, 52 N. W. 478. And she may be compelled to choose between homestead and a devise, in a will which clearly requires such election. Meech v. Meech, 37 Vt. 414. And see Cowdrey v. Hitch- cock, 103 111. 262. 2 8S Dei V. Habel, 41 Mich. 88, 1 N. W. 964. And see Craddock v. Edwards, 81 Tex. 609, 17 S. W. 228. Conti-a, Fore v. Fore, 2 N. D, 260, 50 N. W. 712. 2 88 In re Lamb's Estate, 95 Cal. 397, 30 Pac. 508; Stults v. Sale, 92 Ky. 5, 17 S. W. 148; Roberts v. Greer (Nev.) 40 Pac. 6. 880 Doyle v. Cobum, 6 Allen (Mass.) 71; HaU v. Fields, 81 Tex. 553, 17 S. W. 82. But see Arp v. Jacobs, 3 Wyo. 489, 27 Pac. 800. See, however. Cooper v. Cooper, 24 Ohio St 489. Where the wife withdraws from the family, she loses her homestead right, if her withdrawal was not justified, Trawick v, Harris, 8 Tex. 312; Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436; but not when the husband's conduct has forced her to withdraw, Meader v. Place, 43 N. H. 307; Atkinson v. Atkinson, 40 N. H. 249; Curtis v. Cockrell (Tex. Civ. App.) 28 S. W. 129. A divorced wife cannot claim her "widow's exemption." Dob- son's Adm'r v. Butler's Adm'r, 17 Mo. 87. But see Alexander v. Alexander. 52 111. App. 195. 281 Succession of Norton, 18 La. Ann. 30; Allen v. Manasse, 4 Ala. 554; Mej-er v. Clau.s, 15 Tex. 510; Black v. Singley, 91 Mich. 50, 51 N. W. 704. 2 92 Thomp. Homest & Exemp. 470; Bateman v. Pool, 84 Tex. 405, 19 S. W. 552. «88 Thomp. Homest & Exemp. 475; Miller v. Marckle, 27 111. 405; Williams V. Whitaker, 110 N. C. 393, 14 S. E. 924; Hoppe v. Hoppe, 104 Cal. 94, 37 Pac, 894. § 64) HOMESTEAD DURATION OF EXEMPTION. 115 are entitled, after the death of both parents, to the homestead dur- ing their minority.^®* SAME— DURATION OF EXEMPTION. 64. The homestead right is an exemption: (a) To the owner for life. (b) To the surviving spouse for life, in most states. (c) To the children during their minority, in some states. The homestead interest or estate ^^^ is an exemption, on grounds of public policy, of a home to a debtor and his family."* The ex- emption continues in general for the life of the owner and of the surviving spouse, and until the minor children, if any, reach ma- jority; 2" that is, during a life or lives, and the interest is therefore most closely allied to legal life estates, and possesses many of the incidents of such estates.^^* 294 Thomp. Homest. & Exemp. 47G; Hoppe v. Hoppe, 104 Cal. 94, 37 Pac. 894; Sparkman v. Roberts (Ark.) 31 S. W. 742; Fields v. Austin (Tex. Civ. App.) 30 S. W. 386; HaU v. Fields, 81 Tex. 553, 17 S. W. 82; Tate v. Goff, 89 Ga. 184, 15 S. E. 30; Vornberg v. Ewens, 88 Ga. 237, 14 S. E. 562; Lewis v. Liclity, 8 Wash. St. 213, 28 Pac. 356. But see Haynes v. Schaefer, 96 Ga. 743, 22 S. E. 327; Moore v. Peacock, 94 Ga. 523, 21 S. E. 144. 2 95 In some states the homestead is not treated as an estate. McDonald v. Crandall, 43 111. 231; Black v, Curran, 14 Wall. 463; Atkinson v. Atkinson, 37 N. H. 434; Robinson v. Baker, 47 Mich. 619, 11 N. W. 410; Browning v. Har- ris, 99 111. 456. But see Helm v. Helm, 11 Kan. 21. 296 Capek V. Kropik, 129 111. 509, 21 N. E. 836. 297 See post, p. 382. 298 Kerley v. Kerley, 13 Allen (Mass.) 286; Hunter's Adm'r v. Law, 68 Ala. 365; Jones v. Gilbert, 135 111. 27, 25 N. E. 566; Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830. It is also an estate upon condition (see post, p. 169), namely, that it continue to be occupied as a homestead. Locke v. Rowell, 47 N. H. 46. Homestead also under some statutes resembles the commorv-law tenancy in en- tirety, since the estate goes to the survivor, and both husband and wife must join in a conveyance. See post, p. 337. lift ESTATES AS TO QUANTITY LEGAL LIKE liiTATES. (Ch. 6 SAME— IN WHAT ESTATES. 65. Any estate in possession, legal or equitable, will sup- port a homestead. EXCEPTION — In some states homestead cannot be claimed in joint estates. The iutrrest which the debtor has in the land which he claims as a homestead can, it seems, make no difference to his credit- ors.^^" Accordingly, an equitable estate, such as an equity of redemption," °<» or a contract to purchase,""^ will support a claim of homestead.^'*'* So, also, will a life estate,«°» or a leasehold.""* As to estates in common, the cases are conflicting.""'' Homestead rights in partnership realty are denied in most states.""* So a 298 Thouip. Homest. & Exemp. 144. 800 Cheatham v. Jones, t>8 N. C. 153; Doane v. Doane, 46 Vt 485. 301 McKee v. Wilcox, 11 Mich. 358; Fyffe v. Beers, 18 Iowa, 11; Bartholo- mew V. West, 2 Dill. 203, Fed. Cas. No. 1.071. 802 Wilder v. Haughey, 21 Minn. 102; McKee v. Wilcox, 11 Mich. 358; Blue V. Blue, 38 111. 9; Allen v. Hawley, 6G 111. 1G4; Bartholomew v. West, 2 Dill. 2«J0, Fed. Cas. No. 1,071; McCabe v. Mazzuchelli, 13 Wis. 478; Orr v. Shraft, 22 Mich. 2G0; Alexander v. Jackson, 92 Gal. 514, 28 Pac. 503. Contra, Garaly v. Du Bose, 5 S. C. 493. 808Thomp. Homest. & Exemp. § 150; Deere v. Chapman, 25 111. 610; Potts V. Davenport, 79 111. 455. But that the widow cannot have a homestead in such estate, see Ogden v. Ogden, 60 Ark. 70, 28 S. W. 796. 804 Thomp. Homest & Exemp. § 152; Pelan v. De Bevard, 13 Iowa, 53; Conklin v. Foster, 57 111. 104; Johnson v. Richardson, 33 Miss. 462; Maatta V. Kippola, 102 Mich. 116, 60 N. W. 300; In re Emerson's Homestead, 58 Minn. 450, 60 N. W. 23. But a tenancy at will is not sufficient. Berry v. Dobson, 68 Miss. 483, 10 South. 45. And see Colwell v. Carper, 15 Ohio St 279. 80 B Thomp. Homest. & Exemp. § 156. For cases holding the affirmative, see McClary v. Bixby, 36 Vt 254; Horn v. Tufts, 39 N. H. 478; Hewitt v. Rankin, 41 Iowa, 35; Tarrant v. Swain, 15 Kan. 146; Smith v. Deschaumes, 37 Tex. 429; Williams v, Wethered, Id. 130. See, also. Greenwood v. Maddox, 27 Ark. 648. Contra, Thurston v. Maddocks, 6 Allen (Mass.) 427; Wolf v. Flelschacker, 5 Cal. 244; Ward v. Huhn, 16 Minn. 159 (Gil. 142); West v. Ward, 26 Wis. 579; Amphlett v. Hibbard, 29 Mich. 298; Ventress v. Collins, 28 La. Ann. 783; In re Carriger's Estate, 107 Cal. 618, 40 Pac. 1032. And see note to 12 Lawy. Rep. Ann. 519. •o« Thomp. Homest & Exemp. § 175; Kingsley v. Kingsley, 39 Cal. 605; §§ 66-67) HOMESTEAD AMOUNT OF EXEMPTION. 117 widow cannot have a homestead in lands to which the husband was entitled in remainder.^"^ Title in the wife will give a homestead, though the husband be living; ■"*« but each cannot claim a home- stead. «"»» SAME— AMOUNT OP EXEMPTION. 66. The homestead statutes limit the amount of exemption either: (a) By the number of acres ; (b) By the value of the premises ; or (c) By both. 67. The limitation is different in many states for: (a) Urban homesteads, and (b; Rural homesteads. In al) states the amount of which the homestead may consist is limited, either as to the number of acres, or the value of the prem- ises, or both. Under limitations according to value, the value of improvements is added to the bare value of the land in estimating the exemption. ^^° The amount of the homestead exemption de- pends, under most statutes, on whether the homestead is urban or rural, — the former meaning a home in a town or city, and the lat- ter a home in the country, with land used in agricultural pur- euits.'"'^ But the fact that the land is within the corporate limits Rhodes v. Williams, 12 Nev. 20; Drake v. Moore, 66 Iowa, 58, 23 N. W. 263; Hoyt V. Hoyt, 69 Iowa, 174, 28 N. W. 500; Chalfant v. Grant, 3 Lea (Tenn.) 118. Contra, Hewitt v. Rankin, 41 Iowa, 35; West v. Ward, 26 Wis. 579; Mc- Millan V. Parker, 109 N. C. 252, 13 S. E. 764. 8 07 Howell V. Jones. 91 Tenn. 402, 19 S. W. 757. But see Stern v. Lee, 115 N. C. 426, 20 S. E. 736. sosThomp. Homest. & Exemp. § 184; Orr v. Shraft, 22 Mich. 260; Crane V. Waggoner, 33 Ind. 83; Tourville v. Pierson, 39 111. 440; Partee v. Stew- art, 50 Miss. 717; Murray v. Sells, 53 Ga. 257; Herdman v. Cooper, 39 111. App. 330. 8 09 Tourville v. Pierson, 39 111. 447; Gambette v. Brock, 41 Cal. 84; Mc- Adoo, J., in Holliman v. Smith, 39 Tex. 362. 810 Thomp. Homest, & Exemp. 100; Williams v. Jenkins, 25 Tex. 306; Van- story V. Thornton, 110 N. C. 10, 14 S. E. 637. Contra, Swayne v. Chase, (Tex. Sup.) 30 S. W. 1049. «ii The husband cannot, without the wife's consent, change a rural into 118 ESTATES A3 TO QUANTITY LEGAL LIFE ESTATE^. (Ch. 6 of a town or city does not make it an urban homestead, if it is used for agricultural purposes.'''^ Some cases hold that the homestead may consist of parcels of land not contiguous," '» but this is denied In others.'^* SAME— HOW ACQUIRED. 68. The homestead exemption is acquired by occupancy of the premises as a home. In some states there must also be a recorded notice that the premises are claimed as a homestead. Occupancy. In most of the states, the right to claim land exempt as a home- stead is acquired by occupancy of the premises as a home.'" To create a homestead by occupancy, the occupancy must be actual,'" an urban homestead by dividing It into town lots. Bassett v. Messner, 30 Tex. 604. Cf. Allen v. Whitaker (Tex. Sup.) 18 S. W. 160. 812 Taylor v. Boulware, 17 Tex. 74; Frost v. Rainbow, 85 Iowa, 289, 52 N. W. 19S. But see Heidel v. Benedict (Minn.) 63 N. W. 490. 813 Mayho v. Cotton, 69 N. C. 289; Martin v. Hughes, 67 N. C. 293; Wil- liams V. Hall, 33 Tex. 212; Perkins v. Quigley, 62 Mo. 498; West River Bank v. Gale, 42 Vt. 27; Shubert v. Winston, 95 Ala. 514, 11 South. 200; Webb V. Ilayner, 49 Fed. 601, 605; Grlswold v. Huffaker, 47 Kan. 690, 28 Pac. G90. .814 Reynolds v. Hull, 36 Iowa, 394; Bunker v. Locke, 15 Wis. 035; Walters v. People, 18 111. 194; True v. Morrill, 28 Vt. 672; Adams v. Jenkins, 16 Gray (Mass.) 146; Linn Co. Bank v. Hopkins, 47 Kan. 580, 28 Pac. 606; McCrosky v. Walker, 55 Ark. 303, 18 S. W. 109; Williams v. Willis, 84 Tex. 398, 19 S. W. 683; Allen v. Whitaker (Tex. Sup.) 18 S. W. 160. 8i6Thomp. Homest. & Exemp. § 198. 816 Thouip. Homest. & Exemp. 199; Gregg v. Bostwick, 33 Cal. 220; Kitch- ell v. Burgwin, 21 111. 40; Walters v. People, Id. 178; Tourvllle v. Pierson, 39 111. 446; True v. Morrill, 28 Vt. 672; McMonegle v. Wilson, 103 Mich. 204, 61 N. W. 495; Cahill v. Wilson, 62 111. 137; Campbell v. Ayres, 18 Iowa, 252; Coolidge v. Wells, 20 Mich. 79; Tillotson v. Millard, 7 Minn. 513 (GU. 419); Petty v. Barrett, 37 Tex. 84; Campbell v. Adair, 45 Miss. 170. For cases where the facts did not show sufficient occupancy, see Ev- ans V. Caiman, 92 Mich. 427, 52 N. W. 787; Tromans v. Mahlman, 92 Cal. 1, 27 Pac. 1094, and 28 Pac. 579; Sharp v. Johnston (Tex. Sup.) 19 S. W. 259. The requirement of actual occupancy is relaxed In the case of a widow or minor children surviving the owner. TItman v. Moore, 43 111. 169; Locke § 68) HOMESTEAD HOW ACQUIRED. 119 and in many states must exist at the time the adverse right against which the exemption is claimed accnies.^^^ Dedication by occu- pancy is based on the theory that the use of the premises as a home is notice to the world of the existence of the exemption.^ ^* Therefore the occupancy is required to be permanent,^" and by the family as a home.^*° It must be personal, and not by a tenant.^^^ But it is not required by the statutes that the occupancy be con- tinued any stated length of time before the exemption is acquired. So, after premises have acquired a homestead character, that char- acter is not lost by temporary interruptions in the occupancy."' Recorded Notice. In some states occupancy alone is not sufficient to create a home- stead exemption. It is required, in addition, that there be a no- tice recorded that the premises are claimed as a homestead, or the word "homestead" must be entered in the margin of the record of the title to the premises.'" It is, of course, necessary that the homestead continue to be occupied as such after the recording of the notice, or the exemption will be lost.''* V. Rowell, 47 N, H. 46; Phipps v. Acton, 12 Bush (Ky.) 375; Brettun v. Fox, 100 Mass. 234; Wright v. Dunning, 46 111. 271; Booth v. Goodwin, 29 Ark. 633; Johnston v. Turner, 29 Ark. 280. 81T Villa V. Pico, 41 Cal. 469; Lee v. Miller, 11 Allen (Mass.) 37; Titman V. Moore, 43 111. 174; McCormick v. Wilcox, 25 111. 274; Reinback v. Wal- ter, 27 111. 393. 818 Christy v. Dyer, 14 Iowa, 438; Williams v. Dorris, 31 Ark. 466; Broome V. Davis, 87 Ga. 584, 13 S. E. 749. See, also, Grosholz v. Newman, 21 Wall. 481. 819 Lee V. Miller, 11 Allen (Mass.) 37. 8 20 Spaulding v. Crane, 46 Vt. 298; McCIary v. Blxby, 36 Vt. 254; Dyson V. Sheley, 11 Mich. 527; Moerlein v. Investment Co. (Tex. Civ. App.) 29 S. W. 162; Bente v. Lange, Id. 813. 821 Holtt V. Webb, 36 N. H. 158; True v. Morrill, 28 Vt. 672. See, also, Kaster v. McWlUiams, 41 Ala. 302; Elmore v. Elmore, 10 Cal. 224. 822 Kltchell v. Burgwin, 21 111. 40; Walters v. People, Id. 178; Potts v. Davenport, 79 111. 455; Herrick v. Graves, 16 Wis. 157; Jarvals v. Moe, 33 Wis. 440; Wetz v. Beard, 12 Ohio St. 431; Bunker v. Paquette, 37 Mich. 79. 8 28 Drake v. Root, 2 Colo. 685; Wright v. Westheimer, 2 Idaho, 962, 28 Pac. 430. 82* Gregg V. Bostwlck, 83 Cal. 220; Cole t. Gill, 14 Iowa, 527; Alley v. Bay, 9 Iowa, 509. 120 ESTATES A9 TO QITANTITY LEGAL LIFE ESTATES. (Ctl. 6 69. SELECTION— The homestead may be selected by the one claiming the exemption, or set off for him by order of court. When the premises occupied as a home by a debtor exceed in area or value the exemption allowed by statute, the debtor may select the part which he will claim as his homestead. He may do so after an execution has been issued against him, provided he has uut made a selection previously. ^^"^ If the debtor fails to make a selection, the court will direct the sheriff or a board of ap- praisers to make one for him.^'^* In case division of the premises is impossible or inexpedient,^^^ in some states, the premises may be sold, and the amount which is exempt paid over to the debtor.'^' For the details of the procedure, the reader must consult the local statutes. SAME— HOW LOST. 70. The homestead right may be lost: (a) By abandonment. (b) By waiver. (c) By alienation of the premises, in some states. »2 8 Mackey v. Wallace, 26 Tex. 52G; Davenport v. Alston, 14 Ga. 271; Kent V. Agard, 22 Wis. 145. Cf. Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341. And see Thomp. Homest, & Exemp. 533. For the debtor's riglit to select in states where there is a limitation on area, but not on value, see Thomp. Homest. & Exemp. § 533; Tumlinson v. Swinney, 22 Ark. 400; Houston & G. N. R. Co. V. Winter, 44 Tex. 5'JT; How v. Bank (Minn.) 63 N. W. 632. • 26 Holden v. Pinney, 6 Cal. 234; Fogg v. Fogg, 40 N. H. 282; Gary v. I?:astabrook, 6 Cal. 457; Myers v. Ford, 22 Wis. 139; Hartwell v. McDonald, GO 111. 203; Lute v. Reilly, 65 N. C. 21; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423. And see Pinkerton v. Tumlin, 22 Ga, 105. For procedure In such cases, see Dillman v. Bank, 139 111. 209, 28 N. E. 946; Ducote v. Rachal, 44 La. Ann. 580. 10 South. 933. »2T Where the lower floor of a building occupied by a debtor as his home Is rented for a store, partition may be made horizontally, and the part used for the store sold on execution. Amphlett v. Hlbbard, 29 Mich. 298; Rhodes V. McCormick, 4 Iowa, 368; Mayfield v. Maasden, 59 Iowa, 517, 13 N. W. 652. But see Wright v. Dltzler, 54 Iowa, 620, 7 N. W. 98. ^2« Dearlng v. Thomas, 25 Ga. 223; Miller's Appeal, 16 Pa. St. 300; Dod- son's Appeal, 25 Pa, St, 232; Chaplin v. Sawyer, 35 Vt 286. § 70) HOMESTEAD HOW LOST. 121 Ahwndcmment, Like acquisition by occupancy, loss by abandonment is In all cases a question of fact,^^" and, in determining this, intention to re- turn "** and duration of absence are material points.'"^ Leasing the homestead to a tenant is not conclusive evidence of an aban- donment,*^^ but acquisition of another homestead is.**' Some statutes provide that only certain named acts or a written ac- 828 Thomp. Homest & Exemp. § 218; Feldes v. Duncan, 30 111. App. 4G9; Loveless v. Thomas, 152 III. 479, 38 N. E. 907; Stewart v. Brand, 23 Iowa, 477; Orman v. Orman, 26 Iowa, 301; Potts v. Davenport, 79 111. 459; Brennan V. Wallace, 25 Cal. 108; Shepherd v. Casslday, 20 Tex. 24; Bradford v. Trust Co., 47 Kan. 587, 28 Pac. 702; Robinson v. Swearingen, 55 Ark. 55, 17 S. W. 305; Metcalf v. Smith (Ala.) 17 South. 537; Blackman v. Hardware Co. (Ala.) 17 South. 629. The removal must be voluntary, to constitute abandonment. So leaving the home for fear of Indian hostilities would not authorize the hus- band, before returning, to execute a mortgage without the wife Joining. Moss V. Warner, 10 Cal. 296. Mere intention to abandon does not terminate the exemption. Dawley v. Ayers, 123 Cal. 108. 3 80 Moore v. Smead, 89 Wis. 558, 62 N. W. 426; McMillan v. Warner, 38 Tex. 410; Shepherd v. Cassiday, 20 Tex, 24; Gouhenant v. Cockrell, Id. 97; Potts V. ravenport, 79 III. 455; Lazell v. Lazell, 8 Allen (Mass.) 575; Kitchell V. BurgwiD, 21 111. 40; Buck v. Conlogue, 49 111. 391; Titman v. Moore, 43 111. 169; Cory v. Schuster, 44 Neb. 269, 62 N. W. 470; Cooper v. Basham (Tex. Sup.) 19 S. W. 704; Campbell v. Potter (Ky.) 29 S. W. 139; D. M. Osborne & Co. V. Schoonmaker, 47 Kan 667, 28 Pac. 711; Gregory v. Gates, 92 Ky. 532, 18 S. W. 231. 331 Fyffe V. Bsers, IS Iowa, 7; Dunton v. Woodbury, 24 Iowa, 74; Cabeen r. Mulliran, 37 111. 230; William Deering & Co. v. Beard, 48 Kan. 16, 28 Pac. 981. 832 Herrlck v. Graves, 16 Wis. 163; Austin v. Stanley, 46 N. H. 51; Camp- bell V. Adair, 45 Miss. 170; Wetz v. Beard, 12 Ohio St. 431; Pardo v, Bittorf, 48 Mich. 275, 12 N. W. 164; Wiggins v. Chance, 54 111. 175; Buck v. Conlogue, 49 111. 391; Myers v. Ford, 22 Wis. 139; Eckman v. Scott, 34 Neb. 817, 52 N. W. 822. But see In re Phelan's Estate, 16 Wis. 76; Fisher v. Cornell, 70 111, 216; Davis v. Andrews, 30 Vt, 678; Warren v. Peterson, 32 Neb. 727, 49 N. W. 703; Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110; Malone v. Komrumpf, 84 Tex. 454, 19 S. W. 607. 83 8 Woodbury v. Luddy, 14 Allen CNIass.) 1; Cahlll v. Wilson, 62 111. 137; Carr v. Rising, Id. 14; Dniry v, Bachelder, 11 Gray (Mass.) 214; Blackburn V. Ti-affic Co.. 90 Wis. 362, 63 N. W. 289; Wood v. Hawkins, 60 Ark, 262, 29 S. W. 892. Cf. Davis v. Kelley, 14 Iowa, 523; Brewer v. Wall. 23 Tex. 585; Titman v. Moore, 43 111. 1G9. But see Ross v. Porter, 72 Miss. 361. 16 South. 906; McMillan v. Warner, 38 Tex. 4ia 122 ESTATES AS TO QUANTITY LEGAL LIFE ESTATES. (Ch. 6 knowledgment shall be evidence of abandonment."* No premises can be a homestead unless they are used as such.^" A use of part of the premises for business purposes does not take away the ex- emption."" But in most states it is held that separate buildings rented to tenants will not be exempt, though they are on the home- stead lot.»" Wawer. The homestead may be made liable by an express waiver of the exemption at the time a debt is created, the waiver being made by the persons competent to sell the homestead."' The wife must, however, join in the waiver to make it effectual."* Alienation, A fraudulent conveyance of the homestead set aside by the hus- band's creditors does not estop the debtor or his wife, though she 884 Dulanty v. Pynchon, 6 Allen (Mass.) 510; Doyle v. Coburn, Id. 71: Locke V. Rowell, 47 N. H. 4G; Cross v. Everts, 28 Tex. 533; Jarvals v. Moe. 38 Wis. 445; Faivre v. Daley, 93 Cal. 6G4, 29 Pac. 25G. 886 Hoitt V. Webb, 36 N. H. 158; Stanley v. Greenwood, 24 Tex. 224; Phllleo V. Smalley, 23 Tex. 499; Kelly v. Baker, 10 Minn. 154 (Gil. 124); Tillotson v. Millard, 7 Minn, 513 (Gil. 419); Grosholz v. Newman, 21 Wall. 4SL A man can have only one homestead. Wright v. Dunning, 46 IlL 271. In Texas there may be an exemption of a "business homestead," also. Leavell V. Lapowskl, 85 Tex. 168, 19 S. W. 10(H; Webb v. Hayner, 49 Fed. 601, 605. But see Houston v. Newsome, 82 Tex. 75, 17 S. W. 603. • 86 Kelly V. Baker, 10 Minn. 154 (Gil. 124); Phelps v. Rooney, 9 Wis. 70; Orr V. Shraft, 22 Mich. 260; Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341; In re Ogburn's Estate, 105 Cal. 95, 38 Pac. 498; Groneweg v. Beck (Iowa) 62 N. W. 31. But see Rhodes v. McCormack, 4 Iowa, 368; Garrett v. Jones, 95 Ala. 96, 10 South. 702. «8T Thomp. Homest. & Exemp. 113; Casselman v. Packard, 16 Wis. 114; McDonald v. Clark (Tex. Sup.) 19 S. W. 1023. Cf. Martin Clothing Co. v. Henly, 83 Tex. 592, 19 S. W. 167. But see Milford Sav. Bank v. Ayers, 48 Kan. 602, 29 Pac. 1149; Layson v. Grange, 48 Kan. 440, 29 Pac. 585; Bur- Sher V. Henderson (Tex. Civ. App.) 29 S. W. 522. 83 8 Thomp. Homest. & Exemp. 384; Beecher v. Baldy, 7 Mich. 488; Hutch- Ings V. Huggins, 59 111. 29; Ayers v. Hawks, 1 111. App. 600; Ferguson v. Kumler, 25 Minn. 183; Moore v. Reaves, 15 Kan. 150; Webster v. Trust Co., 93 Ga. 278, 20 S. E. 310. The proceeds of sale aie not exempt Mour- aund V. Prless, 84 Tex. 554, 19 S. W. 775. 888 Ayers v. Hawks, 1 111. App. 600; Beavan v. Speed, 74 N. C. 544; Beech- «r V. Baldy, 7 Mich. 488. § 70) HOMESTEAD HOW LOST. i23 joined in the deed, to claim a homestead in the premises."" ' This is, however, denied by some courts.^" The homestead right itself cannot be sold separately from the premises out of which the right is claimed.^" But most cases hold that the homestead premises may be sold and the grantee hold them against the grantor's cred- itors."*'' In many states, however, the husband and wife must both execute the conveyance."** In these states the husband's sole deed is void, and estops neither to claim a homestead; "*' but 840Thomp. Homest. & Exemp. 352; Cox v. Wilder, 2 DiU. 45, Fed. Cas. No. 3,308; Se.ars v. Hanks, 14 Ohio St. 298; Castie v. Palmer, 6 Allen (IMass.) 401; Smith v. Rumsey, 33 Mich. 183; Murphy v. Crouch, 24 Wis. 3G5; Mul- ler V. Inderreiden, 79 111. 382. 841 Piper V. Johnston, 12 Minn. GO (Gil. 27); Getzler v. Saroni, 18 111. 511; Huey's Appeal, 29 Pa. St. 219. 842 McDonald v. Crandall, 43 111. 231; Chamberlain v. Lyell, 3 Mich. 458; Hewitt V. Templeton, 48 111. 367; Bowyer's Appeal, 21 Pa. St. 210. 8 48 Green v. Marks, 25 111. 225; Fishback v. Lane, 36 111. 437; Lamb v. Shays, 14 Iowa, 567; Morris v. Ward, 5 Kan. 239; C. Aultman & Co. v. Salinas (S. C.) 22 S. E 465. This is the rule in states where judgments against the owner are not liens upon the homestead, but In other states such judgments are liens which remain In abeyance while the homestead right exists. The latter rule prevents a sale of the homestead, except sul:>- ject to such judgment liens. Folsom v. Carll, 5 Minn. 333 (Gil. 264); Til- lotson V. Millard, 7 Minn. 513 (Gil. 419). See, also, Hoyt v. Howe, 3 Wis. 752; Allen v. Cook, 26 Barb. (N. Y.) 374; Jackson v. Allen, 30 Ark. 110. 844 Thomp. Homest. & Exemp. 401; Snyder v. People, 26 Mich. 106; Ring V. Burt, 17 Mich. 465; Wallace v. Insurance Co., 54 Kan. 442, 38 Pac. 489. So a contract to convey must be signed by the wife. Ring v. Burt, 17 Mich. 465. The rule does not apply to conveyances to the wife and children. Riehl V. Blngenheimer, 28 Wis. 84. See, also, Castle v. Palmer, 6 Allen (Mass.) 401; Malony v. Horan, 12 Abb. Prac. N. S. (N. Y.) 289; Turner v. Bernheimer, 95 Ala. 241, 10 South. 750. Cf., however, Barrows v. Barrows, 138 111. M9, 28 N. E. 983. The statutes usually provide for acknowledgment by the wife separate and apart from the husband. Cross v. Everts, 28 Tex. 523-532; Lambert v. Kinnery, 74 N. C. 348. 846 Dye V. Mann, 10 Mich. 291; Amphlett v. Hibbard, 29 Mich. 298; Rich- ards V. Chace, 2 Gray (Mass.) 383; Williams v. Starr, 5 Wis. 534; Barton v. Drake, 21 Minn. 299; Wea Gas, Coal & OU Co. v. Franklin Land Co., 54 Kan. 533, 38 Pac. 790. It is void even as to the husband. Beecher V. Baldy, 7 Mich. 488; Phillips v. Stauch, 20 Mich. 369; Myers v. Evans, 81 Tex. 317, 16 S. W. 1060. Such a conveyance Is valid as to any excess over 124 ESTATES A3 TO QUANTITY LEGAL LIFE ESTATES. (Ch. 6 where the conveyance is to secure a privileged debt,'*' or if the homestead has not been selected, the conveyance is good, be- cause as to such debts there is no homestead exemption.'*' And some cases hold that the husband's deed becomes operative by a subsequent abandonment of the premises as a homestead.*** SAME— PRIVILEGED DEBTS. 71. The homestead is exempt from liability for all debts, except: (a) Public debts, in most cases. (b) Liabilities for torts, in some states. (c) Debts contracted before the passage of the homestead law. (d) Debts contracted and liens attaching before the ac- quisition of the homestead, in many states. (e) Debts contracted in removing incumbrances, in a few states. (f) Liens for the creation, improvement, or preservation of the property, in many states. From most debts of the owner a homestead is exempt,'*' but some debts are privileged, and these are enforceable against the the amount of the homestead. Hait v. Houle, 19 Wis. 472; Ring v. Burt, 17 Mich. 4G5; Wallace v. Harris, 32 Mich. 39S; Boyd v. Cudderback, 31 111. 113; Smith V. Miller, Id. 157; Black v. Lusk, 09 111. 70. See, also, Smith v. Provln, 4 Allen (Mass.) 51G. 84 8 Bumslde v. Teri-y, 51 Ga. ISG. In some states, the husband may con- vey the reversionary interest in his homestead. Gilbert v. Cowan, 3 Lea (Tenn.) 203. 847 People V. Plumsted, 2 Mich. 4G5; Homestead Ass'n v. Enslow, 7 S. C. 1. And see Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110; Chicago, T. & M. C. Ry. Co. V. Titterington, 84 Tex. 218, 19 S. W. 472. 34 8 Brown v. Coon, 36 111. 243; McDonald v. Crandall, 43 111. 231; Vasey v. Trustees, 59 111. 188; Jordan v. Godman, 19 Tex. 273. 849 Ayres v. Grill, 85 Iowa, 720, 51 N. W. 14; Perry v. Ross, 104 Cal. 15, 37 Pac. 757; Anthony v. Rice, 110 Mo. 223, 19 S. W. 423; Webb v. Hayner, 49 iFed. 601, 605; Walters v. Association, 8 Tex. Civ. App. 500, 29 S. W. 51;. Hofman v. Demple, 53 Kan. 792, 37 Pac. 976. § 71) HOMESTEAD PRIVILEGED DEBTS. 125 homestead."" Most cases hold that the land cannot be sold sub- ject to the homestead during the time the homestead exists."^ The homestead is not exempt from taxes; "" but as to other pub- lic debts, such as fines for public offenses or liability on oflQcial bonds, the rule is not uniform."' The statutes of some states make the homestead subject to liability for torts and for the costs x)f such actions.^ ^* Debts contracted before the passage of a home- stead act are privileged in all cases, since otherwise the constitu- tional prohibition against impairing the obligation of contracts would be infringed.' '^'^ Debts contracted prior to the acquisition ■of the homestead and liens so attaching '^^ are in most states en- forceable against the homestead.'*^ They include debts for un- paid purchase mcney,'^* and vendors' liens for the same.'^^ A «6o Sfce Thomp. Homest. & Exemp. p. 246. 8 51 Thomp. Homest. & Exemp. 511; Littell v. Jones, 56 Ark. 139, 19 S. W. 497j Cross v. Weare, 62 N. H. 125. In some states the homestead descends tc the widow or childrei. free from all claims of creditors, and so is not a life estate, but embraces the whole interest of the owner. Parker v. Dean, 45 Miss. 408; Fletcher v. Bank, 37 N. H. 369; Plate v. Koehler, 8 Mo. App. 396; Schneider v. Hoilmann, 9 Mo. App. 280; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 9xt». 802 Davis V. Sta-e, 60 Ga. 76; Hubbell v. Canady, 58 IlL 426; Morris v. Ward, 5 Kan. 239; Com. v. Lay, 12 Bush (Ky.) 284. But see Hlggins v. •Bordages (Tex. Sup.) 31 S. W. 52. 8B8 Thomp. Homest. & Exemp. p. 326. 8B4 Thomp. Homest. & Exemp. 321; McLaren v. Anderson, 81 Ala. 106, 8 South. 188; Dunagan v. Webster, 93 Ga. 540, 21 S. E. 65. 86 6 Gunn V. Barry, 15 Wall. 610; Talley v. Thompson, 20 Mo. 277. 866 In some states a change of homestead Is permitted, and the new home- stead has the same exemption as the old. Mann v. Corrington (Iowa) 61 N. W. 409; White v. Kinley, Id. 176; Freiberg v. Walzem, 85 Tex. 264, 20 S. W. 60; Blum v. Light, 81 Tex. 414, 16 S. W. 1090; Broome v. Davis, 87 Ga. 584, 13 S. E. 749; Green v. Root, 62 Fed. 191. But see Peninsular Stove Co. v. Roark (Iowa) 63 N. W. 326. But existing liens are not prejudiced. Mabi-y V. Harrison. 44 Tex. 286. Cf. Dalton v. Webb, S3 Iowa, 478, 50 N. W. 58. 867 Thomp. Homest. & Exemp. 253; Hensey v. Hensey's Adm'r, 92 Ky. 164, 17 S. W. 333; Titus v. Warren, 67 Vt. 242, 31 Atl. 297; Robinson v. Leach, 67 Vt. 128, 31 AtL 32. But see Ontario State Bank v. Gerry, 91 Cal. 94, 27 Pac. 531; First Nat. Bank v. Bruce, 94 Cal. 77, 29 Pac. 488. «»8 Toole V. Dibrell (Tex. Civ. App.) 29 S. W. 387; Farmer v. Simpson, 6 Tex. 303; Stone v. Darnell, 20 Tex. 11; Barnes v. Gay, 7 Iowa, 26; Skinner 8»» Thomp. Homest & Exemp. 281. And see post, p. 192. 12G ESTATES AS TO QUANTITY LEGAL LIFE ESTATES. (Ch. & Statute giving a privilege to debts contracted in removing incum^ brances means an incumbrance under which the homestead could be sold.'"'" Debts privileged because contracted in creating, im- proving,^" or preserving the homestead include, in general, the wages of clerks, servants, laborers, and mechanics."" Improve- ments, within the meaning of such statutes, include only real fix- tures.'*' FEDERAL HOMESTEAD ACT. 72. The federal homestead act provides for the acquisition of title to public lands by actual settlers, and ex- empts the land from liability for debts contracted before the patent is issued. The federal homestead act is very different from the state home- stead laws. It provides a method of acquiring title to public lands, and, incidentally, certain exemptions during the acquisition. Un- der statutes of congress,^ «* the head of a family may acquire 160 acres of land by occupying and cultivating a certain portion of it for five years,'" and lands so acquired are not liable for ajiy debts V. Beatty, 16 Cai. 156; Christy v. Dyer, 14 Iowa, 438. But see Loftis v. Loftis, 94 Tenn. 232, 28 S. W. 1091; Lone Star Brewing Co. v. Felder (Tex. Civ. App.) 31 S. W. 524. As to wliat is purchase money, see Thomp. Homest. & Exemp. § 285; Allen v. Howley, 66 111. 164; Eyster v. Hatheway, 50 111. 521; Austin v. Underwood, 37 111. 438; Magee v. Magee, 51 111. 500; Gruhn V. Richardson, 128 111. 178, 21 N. E. 18. 860 Griffin v. Greutleu, 48 Ga. 148; Shroeder v. Bauer, 140 111. 135, 29 N. E. 500; Hensel v. Association, 85 Tex. 215, 20 S. W. 116; Watkins v. Spoull, 8 Tex. Civ. App. 427, 28 S. W. 356. 861 United States Inv. Co. v. Phelps & Bigelow Windmill Co., 54 Kan. 144, ■ 37 Pac. 982; Building & Loan Ass'n of Daliota v. Logan, 14 C. O. A. 133, 66 Fed. 827. 862 Thomp. Homest. & Exemp. 314; Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198; Farinholt v. Luckhard, 90 Va. 93G, 21 S. E. 817. 868 Greenwood v. Maddox, 27 Ark. G-IS, GOO; Marshall v. Bacheldor, 47 Kan. 442, 28 Pac. 168. 864 As to how far a state homestead is exempt from liability on Judg* ments recovered in the federal courts, see Rev. St. U. S. 1878, § 916; Thomp. Homest. & Exemp. § 28. 86B Seymour v. Sanders, 3 Dill. 437, Fed. Cas. No. 12,690. Or he may ob- tain title sooner by making certain payments. Clark v. Bayley, 5 Or. 343. § 72) FEDERAL HOMESTEAD ACT. 127 "contracted prior to the issuing of a patent tlierefor." "• But such a homestead may be mortgaged as soon as the right to a patent is complete, though the patent has not been issued; and so ex- emption from state taxation terminates at the same time."^ In case of his death, the widow may thus commute. Perry v. Ashby, 6 Neb. 291; Jarvis v. Hoffman, 43 Cal. 314. 866 Rev. St. U. S. 1878, § 2296. And see 'Dlckerson v. Cuthburth, 56 Mo. App. 647; Miller v. Little, 47 Cal. 348. Both a state and a federal home- stead cannot be held exempt at the same time. Hesnard v. Plunkett (S. D.) 60 N. W. 159. 8«T Thomp. Homest. & Exemp, 37d; Nycum v. McAllister, 33 Iowa, 374; Bellinger v. White, 5 Neb. 399; Axtell v. Warden, 7 Neb. 182; Carroll v. SafCord, 3 How. 441. And see Weare v. Johnson, 20 Colo. 363, 38 Pac. 374. 128 ESTATES A3 TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 CHAPTER Vn. ESTATES AS TO QUANTITY (Contlnued)-LESS THAN FREEHOLD. TS-75. Estates for Years. 76. Creation of Estates for Years. 77. Rights and Liabilities of Landlord and Tenant. 78-79. Rights under Express Covenants. 80-8L Rights under Implied Covenants. 82. Rights Independent of Covenants. 83. Transfer of Estates for Years. M. Termination of Estates for Years. 85. Letting Land on Shares. 80. Tenancies at Will. 87. Creation. 88. Incidents. 89. Termination. 90. Tenancies from Year to Year. 91. Creation. 92. Incidents. 93. Termination. 94. Letting of Lodgings. 95. Tenancies at Sufiferance. 96. Creation. 97. Incidents. 98. Termination, 99. Licenses. 100. Revocation of Licenses. ESTATES FOR YEARS. 73. At> estate for years is an estate created for a definite time, measured by years or fractions of a year. 74. The grantor of an estate for years is called the "les- sor" or *' landlord"; the grantee is called the "les- see" or "tenant." 75. A contract creating an estate for years is called a "lease." An estate for years is an estate less than freehold. As seen by the definition given in the black-letter text, the duration of the ea- §§ 73-75) ESTATES FOR YEARS. 129 tate is measured by years, months, etc., and not by some uncertain measure, like the continuance of a life. Definitions of a lease, and the names of the parties to a lease, have been given. The term ''lease," however, is often applied to instruments creating estates in fee or for life where a rent is reserved. By the creation of an estate for years, the modern relation of landlord and tenant is established between the creator of the estate or owner of the re- version and the grantee or owner of the estate for years. Historical. By the early common law a lessee had no interest which the law would protect against third persons, nor, indeed, against the les- sor, unless the interest in the lands rested on a covenant by deed. It had been the practice from very early times to grant leases by deed, and in such a case, if the lessor wrongfully ejected the lessee, the lessee had his remedy by action on the covenant, as in the case of any other covenant under seal. A new writ was introduced, which afforded the lessee a remedy against his lord, whether the lease was by deed or not, and also gave him a right to protection against ejectment by a third person, and probably an additional remedy, by enabling the lessee to recover possession of the land, and not merely damages for breach of covenant. This was called the "writ of ejectio firmse," — a proceeding which, by a series of fictions, was extended till, in the form of the action of ejectment, it became the appropriate means of asserting the right to the pos- session of land, under whatever title, and took its place as the statutory substitute for all the forms of real actions. Thus the interest of the termor or lessee for years, instead of resting at best npon a covenant with his lessor, and therefore being enforceable only as against him, became a right of property, which could be enforced against anv wrongdoer, by a remedy analogous to that provided for a wrongful ouster of a freeholder from his possession. Thus these interests became estates or rights of property in land.* 1 Dig. Real Prop. (4th Ed.) 176. REALPKOP.— 9 4 / 130 EaXATES A3 TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 SAME— CREATION OF ESTATES FOR YEARS. 76. The creation of estates for years is subject to the fol- Icwing rules: (a) They can be created only by contract or devise (p. 130). (b) The parties must be competent, and the lessor or testator must have an estate out of which an estate for years may be created (p. 131). (c) There must be a writing, if the estate is for more than: (1) One year in some states. (2) Three years in other states (p. 132). (d) They may begin in futuro (p. 133). (e) They may be created to continue any number of years, except: EXCEPTION— In some states, by statute, estates for years cannot be created for more than a limited number of years (p. 133). Contract or Devise. Estates for years can arise only by act of parties, not by oper- ation of law.* After an estate for years is in existence, it may be transferred by operation of law, but it cannot come into exist- ence in that w^ay. Estates for years are usually created by con- tract, — that is, by lease, — though they may arise by devise. In the latter case no contractual obligations are imposed on the dev- isee, unless there are conditions contained in the devise which the devisee becomes bound to perform by accepting the devise. Same — Lease and Agreement for a Lease. The distinction between a lease and an agreement for a future lease should be noted. Where the point is in doubt, the test in » Poppers V. Meagher, 148 111. 192, 85 N. E. 805; Board of Sup'rs of Cass Co. V. Cowgill, 97 Mich. 448, 56 N. W. 849; Sawyer v. Hanson, 24 Me. 542; Loring v. Taylor, 50 Mo. App. 80. But see Roe v. Ward, 1 H. Bl. 97; Bishop V. Howard, 2 Barn. & C 100; Skinner r. Skinner, 88 Neb. 756, 57 N. W. 534. § 76) CREATION OF ESTATES FOR YEARS. . 131 all cases is tlie intention of the parties." The distinction is Impor- tant, because a written lease, fully executed, cannot be varied by parol, while, if it is only a contract for a lease, omitted terms and conditions may be supplied according to the intention of the par- ties.* Who may Create Estates for Years. "Any person who by law may hold real estate, and who is under no legal disability, may make a lease of lands that accords with his estate or interest therein." ' The qualifications required by law for ijarties to leases are the same as for parties to a contract Therefore leases by and to infants,' lunatics, and intoxicated per- sons are voidable, rather than void.'' But, except as now changed by statute, leases by a married woman of lands not part of her separate estate are void,' the husband having the sole power to lease such lands.' Leases may be made by agents,^" guardians,^^ executors to whom land is devised,^* and trustees. But, where the cestui que trust does not join, a lessee who has notice of the trust holds as trustee himself.^' No lease of land is valid where the lessor has been disseised, » Goodtitle v. Way, 1 Term R. 735; Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Western Boot & Shoe Co. v. Gannon, 50 Mo. App. 642; Poole v. Bent- ley, 12 East, 168. * 1 Washb. Real Prop. (5th Ed.) 483; McFarlane v. Williams, 107 111. S3. 6 1 Wood, Landl. & Ten. (2d Ed.) § 80. e Clark, Cont. 210; Field v. Herrick, 101 111. 110; Griffith v. Schwender- luan, 27 Mo. 412. T 1 Tayl. Landl. & Ten. (8th Ed.) 107; 1 Wood, Landl. & Ten. (2d Ed.) 228. Cf. Nichol V. Thomas, 53 Ind. 42. But when the lunatic is under guard- ianship his leases are void. See Elston v. Jasper, 45 Tex. 409. And see V^an Deuseu v. Sweet, 51 N. Y. 378. 8 1 Wood, Landl. & Ten. (2d Ed.) 216; 1 Tayl. Landl. & Ten. (8th Ed.) Ill; Murray v. Emmons, 19 N. H. 483. » See ante, p. 71. 10 1 Tayl. Landl. & Ten. (8th Ed.) 148; 1 Wood, LandL &. Ten. (2d Ed.) 267. 11 Hughes' Minors' Appeal, 53 Pa. St. 500; Hicks v. Chapman, 10 Allen (Mass.) 463. Leases by guardians must not be for an unreasonable length of time, as beyond the minority of the ward. Ross v. Gill, 4 Call (Va.) 250; Van Doren v. Everltt, 5 N. J. Law, 460. 12 1 Wood, Landl. & Ten. (Jd Ed.) 238; 1 TayL Landl. & Ten. (8th Ed.) 144. i« 1 Wood, Landl. & Ten. (2d Ed.) 312; 1 Tayl. Landl. & Ten. (8th Ed.) 14L 132 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 and the land is held adversely." Tenants for life, as In dower, by curtesy, and per autre vie, can maJve demises of the land which are valid until the termination of the life estate.'" Joint tenants,^' tenants in common,^' and co-parceners '» can lease their undivided portions without the consent of the co-owners.^' Leases by a mortgagor pnor to the mortgage are valid against the mortgagee,^" but not if subsequent to the execution of the mortgage, where the mortgagee does not join.'^ By the statutes of frauds" of the several states, leases for longer than a year (or three years in some states) must be in writing," and some statutes require a deed " for leases of more than a specified length." The words generally used in granting an estate for years are "lease," "demise," and "farm let," signifying the creation of a present interest.*' But other words will be suffi- cient if the meaning is clear.'^ 14 1 Tayl. Landl. & Ten. (8th Ed.) 96; 1 Wood, Landl. & Ten. (2d Ed.) 32-5. 18 1 Tayl. Landl. & Ten. (8th Ed.) 122; Mclntyre v. Clark, 6 Misc. Rep. 377, 26 N. Y. Supp. 744; Sykes v. Benton, 90 Ga. 4U2, 17 S. E. 1002; Coakley v. Ghamberlain, 1 Sweeny (N. Y.) 676. 16 See post, p. 333. 17 See post, p. 335. 18 See post, p. 336. 10 1 Tayl. Laudl. «& Ten. (8th Ed.) 123. Cf. Talntef v. Cole, 120 Mass. 162. And see Grabfelder v. Gazettl (Tex, Civ. App.) 26 S. W. 436. 20 1 Tayl. Landl. & Ten. (8th Ed.) 129; Moss v. Gallimore, 1 Doug. 279; Hogers V. Humphreys, 4 Adol. & E. 299. 21 1 Tayl. Laudl. «& Ten. (8th Ed.) 128; 1 Wood, Landl. & Ten. (2d Ed.) 254. And see post, p. IflS. 2 2 For the memorandum, signing, etc., required by the statute of frauds, see Clark, Cont. p. 114, 23 1 stim. Am. St Law, § 4143; 2 Shars. & B. Lead. Cas. Real Prop. 54. 2 4 See post, p. 415. 2 5 Bee 1 Stim. Am. St Law, § 1471; 2 Shars. & B. Lead. Gas. Real Prop. 55. An d see Bratt v. Bratt 21 Md. 578. But cf., as to the other terms. Doe v. Bell, 5 Term R. 471; Doe v. Stratton, 4 Bing. 446; Richardson v. Gifford, 1 Adol. & E. 52. In the absence of such a deed, the lessee is tenant from year to year. Clayton v. Blakey, 8 Term R. 3. 28 Aveilll v. Taylor, 8 N. Y. 44; Wright v. Trevezant, 8 Car. & P. 441; Doe T. Benjamin, 9 AdoL & E. 644. «» Doe V. Ries, 8 Bing. 178; Roe v. Ashburner, 5 Term R. 163; Jackson v. § 76) CREATION OP ESTATES FOR YEARS. 133 Com/mencement. A term of years may be granted to begin in the future,*' provided the time is not postponed beyond the period allowed by the rule against perpetuities.** An estate of freehold cannot be so limited at common law, because freehold estates were transferred by feoff- ment and livery of seisin; that is, by transfer of possession. This was a present act, and livery could not be made to operate at some future time. The creation of an estate for years, to begin in fu- turo, does not violate the common-law rule, since the only right the tenant has is a contract right to have the possession at a future time. The seisin remains in the landlord, and the tenant tates no present estate. 8wme — Interesse Termini. The interest which a lessee has between the making of the lease and his entry into possession is called an "interesse termini." This interest is assignable,'" and as soon as, by the terms of the lease, the lessee is entitled to possession, he may maintain ejectment.'^ This right of entry is not destroyed by the death of the lessor or of the lessee.'* Duration, In most states, estates for years may be created for any length of time, but in a few states there are statutes which forbid their creation for more than limited periods, ranging from 10 to 20 years." Estates for years must be so limited that they will ter- Delacroix, 2 Wend. (N. Y.) 433; Watson v. O'Hem, 6 Watts (Pa.) 362; Moore V. Miller, 8 Pa. St. 272; Moshier v. Reding, 12 Me. 478; Smith v. Hubert, 83 Hun, 503, 31 N. Y. Supp. 1076. A lease of "a building" is a lease of the land on which it stands. Lanpher v. Glenn, 37 Minn. 4, 33 N. W. 10. 2 8 Colclough V. Carpeles, 89 Wis. 239, 61 N. W. 836; Cadell v. Palmer, 1 Clark & F. 372; Field v. Howell, 6 Ga. 423; Whitney v. Allaire, 1 N. Y. 305; Weld V. Tralp, 14 Gray (Mass.) 330. 28 See post, p. 322;. Gomez v. Gomez, 81 Hun, 566, 31 N. Y. Supp. 206. «o 1 Wood, Landl. & Ten. (2d Ed.) 452; Soffyns' Case, 5 Coke, 123b; Wood T. Hubbell, 10 N. Y. 488. 81 Doe V. Day, 2 Q. B. Div. 156; Gardner v. Keteltas, 3 Hill (N. Y.) 332; Trull v. Granger, 8 N. Y. 115; Whitney v. Allaire, 1 N. Y. 305, 311. 32 1 Wood. Landl. & Ten. (2d Ed.) 452; 1 Tayl. Landl. & Ten. (8th Ed.) 14; Co. Litt. 46b. ««1 Stim. Am. St Law, S 1841; 2 Shars. & B. Lead. Cas. Real Proo 44. 134 ESTATES AS TO QUANTITY I.ESS THAN FREEHOLD. (Ch. 7 rainate at a definite time, or at a time which can be made certain." However, a condition by which the estate may be determined be- fore the expiration of the time for which it is limited does not make it invalid. For instance, a demise to a man for 99 years, if he live so long, is good."* Nor does an option residing in one party to put an end to the lease at any time make it invalid."' SAME— RIGHTS AND LIABILITIES OP LANDLORD AND TENANT. 77. The rights and liabilities of landlord and tenant may, for convenience of treatment, be divided into three classes: (a) Rights under express covenants (p. 134), (b) Rights under implied covenants (p. 138). (c) Rights independent of covenants (p. 141). 78. RIGHTS UNDER EXPRESS COVENANTS— By ex- press covenants the parties may vary their rights and liabilities almost at ■will. 79. Express covenants are either: (a) Personal; or (b) Such as run -with the land. In many states, leases for more than a certain number of years must be re- corded. Post, p. 218; 1 Stim. Am. St. Law, § 1624; 1 Shars. & B. Lead. Cas. Real Prop. 56. And see Toupin v. Peabody, 162 Mass. 473, 39 N. B. 280. An estate for years may be for a single year, or even a less peiiod. Brown v. Bragg, 22 Ind. 122. 34 Murray v. Clierrington, 99 Mass. 229; Horner v. Leeds, 25 N. J. Law, 100; Cargar v. Fee, 140 Ind. 572, 39 N. E. 93; Goodright v. Richardson, 3 Term R. 402. For the method of computing time under a lease, see Atiiins v. Sleeper, 7 Allen (Mass.) 487; Deyo v. Bleakley, 24 Barb. (N. Y.) 9; Sheets v. Selden's Lessee, 2 Wall 177. «» 1 Tayl. Landl. & Ten. (8th Ed.) 86. And see Lacey v. Newcomb (Iowa) 63 N. W. 704. 8« King V. Ransom, 86 Wis. 496; 56 N. W. 1084. Cf. Clifford v. Gres- singer, 96 Ga. 789, 22 S. B. 399. And see, as to privilege of renewal, Pearce V. Turner, 150 111. 116, 36 N. E. 962; Robinson v. Beard, 140 N. Y. 107, 35 N. E. 441; Bullock v. Grinstead, 95 Ky. 261, 24 S. W. 867; Hughes v. Wlndpfen- nig (Ind. App.) 37 N. B. 432. §§ 77-79) RIGHTS AND LIABILITIES OF LANDLORD AND TENANT. 135 The mutual obligations of lessor and lessee are fixed almost en- tirely by contract; that is, by the covenants of the lease. An ex- press covenant is an agreement under seal,^^ though the same term is used in those states where seals are abolished. The most usual covenants by the lessor are for quiet enjoyment,^* against incum- brances," to repair,*" and to renew the lease." The lessee generally covenants to pay rent,*Ho insure,*^ and not to assign** or underlet.*' «7 1 Tayl. Landl. & Ten. (8th Ed.) 2, 94; Clark, Cont. 72. No precise lan- guage is necessary to constitute a covenant. It may be in tlie form of a condition. Surplice v. Farnswortli, 7 Man. & G. 576. Or an exception. Rus- sel V. Gulwel, Cro. Eliz. 657; Lowell Soutli Congregational Meeting House V. Hilton, 11 Gray (Mass.) 407. Or a recital. Penn v. Preston, 2 Rawle (Pa.) 14; Vauglian v. Matlock, 23 Ark. 9. 8 8 Shelton v. Codman, 3 Cush. (Mass.) 318; Markland v. Crump, 1 Dev. & B. (N. C.) 94; Suydam v. Jones, 10 Wend. (N. Y.) 180; Hunt v. Amidon, 4 Hill (N. Y.) 345; Friedland v. Myers, 139 N. Y. 432, 34 N. B. 1055; Campbell V. Lewis, 3 Barn. & Aid. 392. Of. Hochenauer v. Hilderbrant (Colo. App.) -10 Pac. 470; Sheets v. Joyner, 11 Ind. App. 205, 38 N. E. 830. 3 9 Ober V. Brooks, 162 Mass. 102, 38 N. E. 429; Sprague v. Baker, 17 Mass. 585; Gilbert v. Bulkley, 5 Conn. 262; Pillsbury v. Mitchell, 5 Wis. 17; Red- wine V. Brown, 10 Ga. 311. *ojohn Morris Co. v. Southworth, 154 111. 118, 39 N. E. 1099; Thomson- Houston Electric Co. v. Durant Land-Imp. Co., 144 N. Y. 34, 39 N. E. 7; Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018; Dunn v. Robbins, 65 Hun, 025, 20 N. Y. Supp. 341; Clifton v. Montague (W. Va.) 21 S. E. 858; Mumford V. Brown, 6 Cow. (N. Y.) 475; Post v. Vetter, 2 E. D. Smith (N. Y.) 248; Benjamin v. Heeney, 51 111. 492. The landlord must be notified that repairs are needed. Ploen v. Staff, 9 Mo. App. 309; Walker v. Gilbert, 2 Rob. (N. Y.) 214; Wolcott V. Sullivan, 6 Paige (N. Y.) 117. 41 Piggot V. Mason, 1 Paige (N. Y.) 412, Renoud v. Daskam, 34 Conn. 512; Blackmore v. Boardman, 28 Mo. 420; Kolasky v. Michels, 120 N. Y. (535, 24 N. E. 278. A covenant for perpetual renewal is good. Blackmore V. Boardman, 28 Mo. 420. But see Western Transp. Co. v. Lansing, 49 N. Y. 499. *« Hurst V. Rodney, 1 Wash. O. C. 375, Fed. Cas. No. 6,937; Main v. Feathers, 21 Barb. (N. Y.) 646; Jacques v. Short, 20 Barb, (N. Y.) 269; Dem- arest v. Willard, 8 Cow. (N. Y.) 206; Thomson-Houston Electric Co. v. Du- rant Land Imp. Co., 144 N. Y. 34, 39 N. E. 7. Further, as to rent, see post, p. 140. 4« Vernon v. Smith, 5 Bam. & Aid. 1; Doe v. Peck, 1 Barn. & Adol. 428; Thomas' Adm'r v. Von Kapflf's Ex'rs, 6 Gill & J. (Md.) 372. *4 See note 44 on following page. *» See note 45 on following page. 136 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 Sornetinies covenants are inserted binding him to repair,** to re- side on the premises,*^ not to engage in certain trades,*^ to build in a prescribed manner,*' or, if a farm lease, to cultivate in a cer- tain way."^" The parties may, of course, make such further special covenants as they see fit."^ Personal Covenants and Covenants Rurvnvng with the La/ncL^* Covenants which may be enforced by the assignee " of the term or of the reversion "* are said to run with the land. If a covenant touches or concerns the thing demised, and there is privity of estate between the parties, it runs with the land." If it relates to something in existence when the lease was executed, the as- *« Williams v. Earle, 9 Best «& S. 740; Matthews v. Whitaker (Tex. Civ. App.) 23 S. W. 538. -6 Kew V. Trainor, 150 111. 150, 37 N. E. 223. <6 Scott V. Brick Co., 135 N. Y. 141, 31 N. B, 1102. Cf. Standen v. Chris- mas, 10 Q. B. Div. 135. But see 1 Stim. Am. St Law, § 2045. The covenant to repair Is always Implied. See post, p. 139. *■> Tatem v. Chaplin, 2 H. Bl. 133. *8 Miller v. Prescott, 163 Mass. 12, 39 N. E. 409. And see Kugel v. Painter, 166 Pa. St. 592, 31 Atl. 338; Round Lake Ass'n v. Kellogg, 141 N. Y. 348, 36 N. E. 326. *» Mayor, etc., of New York v. Brooklyn Fire Ins. Co., 41 Barb. (N. Y.) 231; Mayor, etc., of New York v. Hamilton Fire Ins. Co., 10 Bosw. (N. Y.) 537. 50 Cockson V. Cock, Cro. Jac. 125. See, also, Callan v. McDaniel, 72 Ala. 96. Bl See Postal Tel. Cable Co. v, W. U. Tel. Co., 155 111. 335, 40 N. E. 587; Keating v. Springer, 146 111. 481, 34 N. E. 805; Pewaukee Milling Co. v. Howitt, 86 Wis. 270, 56 N. W. 784; Leydecker v. Brintnall, 158 Mass. 292, 33 N. E. 399; McManus v. Shoe, etc., Co., 1 Mo. App. Rep'r, 73; Cargill v. Thomp- son, 57 Minn. 534, 59 N. W. 638. 62 See Clark, Cont. 545, for a discussion of this subject. 6 3 The assignee is bound by privity of estate, while the personal repre- sentative is bound by privity of contract. 1 Tayl. Landl. & Ten. (8th Ed.) 308; Spencer's Case, 5 Coke. 16. See, also. Mlnshull v. Oakes, 2 Hurl. & N. 793; Martyn v. Clue, 18 Q. B. Div, 661; Hansen v. Me^er, 81 IlL 321. 6* Assignees of the lessor could not enforce covenants against the lessee or his assignees until the statute of 32 Hen. VIII. c. 34. BB 1 Tayl, Landl. & Ten. (8th Ed.) 308; Morse v. Aldrich, 19 Pick. (Mass.) 449; Piggot V. Mason, 1 Paige (N. Y.) 412; Norman v. Wells, 17 Wend. (N, Y,) L36; Wooliscroft v. Norton, 15 Wis. 198; Blackmore v. Boardman, 28 Mo. 420; Gordon v. George, 12 Ind. 408; Tatem v. Chaplin, 2 H. Bl. 133; Vernon v. Smith, 5 Barn. & Aid. 1; Vyvyan v. Arthur, 1 Bam. & C. 410; Williams v. §§ 77-79) RIGHTS AND LIABILITIES OF LANDLORD AND TENANT. 137 signees may enforce it without being: named in the lease."' But, if it relates to something not in existence at that time, the as- signees must be named in the covenant, or they cannot enforce it."^^ In no case, however, are the lessee's assigns bound by personal covenants between the original parties.'" Covenants to repair, ''• pay rent,*** cultivate in a certain mode, for quiet enjoyment, etc., run with the land,®^ as do also all implied covenants,®'' while cove- nants purely personal, such as an agreement to pay the lessee for a building to be erected by him, do not run with the land.*'^ So a covenant to build a wall in a certain place would not bind an assignee of the term.®* A lessee is bound by an express cove- nant, even though he has assigned the tenn,®'^ and so is the lessor.** Earle, L. R. 3 Q. B. 739. Cf. MinshuU v. Oakes, 2 Hurl. & N. 793. And see, for covenants running with the land, between parties not lessor and lessee, National Union Bank v. Se^r, 39 N. J. Law, 173; Hurd v. Curtis, 19 Pick. (Mass.) 459; Lyon v. Parker, 45 Me. 474. 06 Parkenham's Case, Y. B. 42 Edw. III. c. 3, pi. 14; Anon., Moore, 179, pi. 318. 6T Spencer's Case, 5 Coke, 16; Hansen v. Meyer, 81 111. 321; Masury v. Southworth, 9 Ohio St. 340; Doe v. Seaton, 2 Cromp., M. & R. 730; Verplanck v. Wright, 23 Wend. (N. Y.) 506; Wakefield v. Brown, 9 Q. B. Div. 209. 5 8 Mayor, etc., of Congleton v. Pattison, 10 East, 130; Dolph v. White, 12 N. Y. 296; Curtiss v. White, Clarke, Ch, (N. Y.) 389; Inhabitants of Plymouth v. Carver, 16 Pick. (Mass.) 183; Spencer's Case, supra; Gray v. Cuthbertson, 2 Chit. 482. Cf. Mayho v. Buckhurst, Cro. Jac. 438; Dolph v. White, 12 N. Y. 296. B8 Congham v. King, Cro. Car. 221; Twynam v. Pickard, 2 Bam. & Aid. 105. «o Trask v. Graham, 47 Minn. 571, 50 N. W. 917. But see, as to a subtenant, Holford V. Hatch, 1 Doug. 183. fli 1 Tayl. Landl. & Ten. (8th Ed.) 313; 1 Wood, Landl. & Ten. (2d Ed.) 673. 6 2 1 Tayl. Landl. & Ten, (8th Ed.) 313. 68 Thompson v. Rose, 8 Cow. (N. Y.) 266; Bream v. Dickerson, 2 Humph. ,(Tenn.) 126; Hansen v. Meyer, 81 111. 321; Mayor, etc., of Congleton v. Pat- tison, 10 East, 138; Sampson v. Easterby, 9 Bam. & O. 505. Cf. Thomas V. Hayward, L. R, 4 Exch. 311. Such a covenant may be enforced by an assignee of the lessee. Hunt v. Danforth, 2 Curt- 592, Fed. Cas. No. 6.887. 64 Spencer's Case, 5 Coke, 16a. And see Norman v. Wells, 17 Wend- (N. Y.> 136; Masury v. Southworth, 9 Ohio St. 340. •8 Barnard v. Godscall, Cro. Jac. 309. See post, p. 149. «• Jones V. Parker, 163 Mass. 564, 40 N. B. 10i4. 138 I8TATES AS TO QUANTITY LE99 THAN FREEHOLD. (Ch. 7 80. RIGHTS UNDER IMPLIED COVENANTS— The prin- cipal implied covenants in a lease are: (a) By the lessor, for quiet enjoyment and to pay taxes. (b) By the lessee, to repair, to cultivate in a husband- manlike manner, and to pay rent. 81. Implied covenants al-vrays run with the land. Implied Covenants — Bij the Lessor^ Besides express covenants, there are others which are implied by law from the execution of the lease.®' It is held that the words "demise" or "grant" imply a covenant by the lessor for quiet en- joyment." This covenant is broken only by an actual disturbance of possession or enjoyment.''" A failure of title, unless followed by an ouster, would not constitute a breach.'* And an eviction, to have that effect, must be under a legal title.''* The lessor does not covenant against trespassing or other wrongful disturbance by strangers.'^ There is also an implied covenant by the lessor that 8T For a discussion of Implied contracts, see Clark, Cont c. 13. «8 1 Tayl. Landl. & Ten. (8th Ed.) 301; 1 Wood, Landl. & Ten. (2d Ed.) 691. «B Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082; Grannls v. Clark, 8 Cow. (N. Y.) 36; Barney v. Keith, 4 Wend. (N. Y.) 502; Tone v. Brace, 8 Paige (N. Y.) 597; Stott v. Rntlierford, 92 U. S. 107; Maule v. Ashmead, 20 Pa. St. 482; Hamilton v. Wright, 28 Mo. 199; Wade v. Halligan, 16 111. 507. But see Sedberry v. Verplanck (Tex. Civ. App.) 31 S. W. 242; Groome v. Ogden City Corp., 10 Utah, 54, 37 Pac. 90. TO Dexter v. Manley, 4 Cush. (Mass.) 14; Sherman v. Williams, 113 Mass. 481; International Trust Co. v. Schumann, 158 Mass. 287, 33 N. B. 509; Dyett V. Pendleton. 8 Cow. (N. Y.) 727; Edesheimer v. Quackenbush, 68 Ilun, 427, 23 N. Y. Supp. 75; Lounsbery v. Snyder, 31 N. Y. 514; Schilling v. Holmes, 23 Cal. 227; Moore v. Weber, 71 Pa. St. 429. Of. Cole's Case, 1 Salk. 196. 71 1 Tayl. Landl. & Ten. (8th Ed.) 355; 1 Wood, Landl. & Ten. (2d Ed.) 771; Sedgwick v. HoUenback, 7 Johns. (N. Y.) 376; Stanard v. Eldridge, 16 Johns. (N. Y.) 254; Mills v. Sampsel, 53 Mo. 360. Even a recovery in eject- ment Is no breach, unless It Is followed by an ouster. Kerr v. Shaw, 13 Johns. (N. Y.) 236. T2 Morse v. Goddard, 13 Mete. (Mass.) 177; Ross v. Dysart, 33 Pa, St 452; Moore v. Weber, 71 Pa. St. 429; Mack v. Patchin, 42 N. Y. 167. T* A mere trespass by the lessor would not be a breach, as It is not an eviction. Mayor, etc., of New York v. Mable, 13 N. Y. 151; Hayner v. '§§ 80-81) RIGHTS AND LIABILITIES OF LANDLORD AND TENANT. 139 he will pay all taxes and assessments levied on the premises de- mised/* But there is no covenant implied that the premises are in a tenantable condition.'" Same — By the Lessee, On the part of the lessee, there is an implied covenant to repair.^' The duty extends, however, only to keeping a house wind and water tight,^^ and he is not liable for deteriorations resulting from or- dinary wear and tear,^® nor when the premises are accidentally burned down.^® Failure to repair constitutes permissive waste.** Smith, 63 111. 430; Avery v. Dougherty, 102 Ind. 443, 2 N. B. 123. But see Bennet v. Bittle, 4 Rawle (Pa.) 338. 7 4 stubbs V, Parsons, 3 Barn. & Aid. 516; Watson v. Atkins, Id, 647. If the lessor fails to do so, the lessee may pay them, to prevent the loss of his estate, and deduct the amount from the rent. McPherson v. Atlantic & P. R. Co., 66 Mo. 103. 7 Reeves v. McComeskey, 168 Pa. St. 571, 32 Ati. 96; Blake v. Dick, 15 Mont. 236, 38 Pac. 1072; Doyle v. Railway Co., 147 U. S. 413, 13 Sup. Ct. 333; Jaffe V. Harteau, 56 N. Y. 398; Fisher v. Lighthall, 4 Mackey (D. C.) 82; Lucas V. Coulter, 104 Ind. 81, 3 N. E. 622; Blake v. Ranous, 25 111. App. 486; Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006. But the rule is other- wise when lodgings or furnished houses are let. Smith v. Marrable, 11 Mees. & W. 5. But see Fisher v. Lighthall, 4 Mackey (D. C.) 82. 7 6 Demarest v. Willard, 8 Cow. (N. Y.) 206; Shelby v. Heame, 6 Yerg. (Tenn.) 512; Pollard v. Shaffer, 1 Dall. 210; U. S. v. Bostwiek, t)4 U. S. 53; Miller v. Shields, 55 Ind. 71; Turner v. Townsend, 42 Neb. 376, 60 N. W. 587. The lessor is never bound to repair unless there is a stipulation to that effect. Nor must he rebuild a house, if it bums down, without a covenant to do so. Sheets v. Selden, 7 Wall. 423; Leavitt v. Fletcher, 10 Allen (Mass.) 121; Gill V. Middleton, 105 Mass. 478; Doupe v. Gerrin, 45 N. Y. 119; Little v. Ma- cadaras, 29 Mo. App. 332, 38 Mo. App. 187; Heintze v. Bentley, 34 N. J. Eq. 562; Medary v. Gathers, 161 Pa. St. 87, 28 Atl. 1012; Cowell v. Lumley, 39 Cal. 151; Jones v. Millsaps, 71 Miss. 10, 14 South. 440. The duty is imposed by statute in several states. 1 Stim. Am. St. Law, § 2041; 2 Shars. & B. Lead. Gas. Real Prop. 94. 7 7 Parrott v. Barney, Deady, 405, Fed. Gas. No. 10,773a; Kastor v. New- house, 4 E. D. Smith (N. Y.) 20; Auworth v. Johnson, 5 Car. & P. 239. 7 8Torriano v. Young, 6 Car. & P. 8. 7 9 Eagle V. Swayze, 2 Daly (N. Y.) 140. And see Payne v. James, 45 La. Ann. 381, 12 South. 492. Cf., however, Peck v. Manufacturing Co., 43 111. App. 360. 80 1 Tayl. Landl. & Ten. (8th Ed.) 408; 1 Wood, Landl. & Ten. (2d Ed.) 980; Iiothrop V. Thayer, 138 Mass. 466, and cases cited. 140 ESTATES A3 TO QUANTITY LESS THAN FREEHOLD. (Cb. 7 There is also an implied covenant to cultivate in a husbandmanlike manner." But covenants to pay taxes," to insure, or not to as- sign are never implied." Same — Bent.^ A valid term of years may be created without the reservation of a rent.*" But whenever a rent is reserved there is an implied cove- nant on the part of the lessee to pay it whether he ever take pos- session or not.*' And, where there is an express covenant to pay, a destruction of the demised premises will not relieve him.*^ But when the tenant is evicted from part or all of the premises by a title paramount, his liability for rent ceases in proportion.** And when he is evicted by the landlord even from a part, the whole lia- 81 Walker v. Tucker, 70 111. 527; Aughlnbaugh v. Coppenheffer, 55 Pa. St, 347; Powley v. Walker, 5 Term R. 873; Legh v. Hewitt, 4 East, 154; Dalby V. Hirst, 3 Moore, C. P. 536. 82 Except by statute. 1 Stim. Am. St. Law, § 2042. 8 8 1 Wood, Landl, & Ten. (2d. Ed.) 701, 709; 2 Wood, Landl. & Ten. (2d Ed.) 954; 1 Tayl. Landl. & Ten. (8th Ed.) 398, 477, 479; Church v. Brown, 15 Ves. 258. 84 For rent as an incorporeal hereditament, see post, p. 375, 8 6 Sherwin v. Lasher, 9 111. App. 227; Hunt v. Comstock, 15 Wend. (N. Y.) 665. Cf. Hooton v. Holt, 139 Mass. 54, 22 N. E. 221; Osborne v. Humphrey, 7 Conn. 335. If no rent is reserved, there may be a recovery for use aud occupation, according to the real value of the premises, unless a contrary in- tention of the parties is shown. 1 Tayl. Landl. & Ten. (8th Ed.) 434; 2 Wood, Landl. & Ten. (2d Ed.) 1328. 8 8 McGlynn v. Brock, 111 Mass. 219; Mechanics' & Traders' Fire Ins. Co. v. Scott, 2 Hilt. (N. Y.) 550; McMurphy v. Minot, 4 N. H. 251. *i 1 Tayl. Landl. & Ten. (8th Ed.) 436; Peck v. Ledwidge, 25 IIL 93; Hallett V. Wylie, 3 Johns. (N. Y.) 44; Fowler v. Bott, 6 Mass. 63; French v. Richards, 6 Phila. (Pa.) 547; Holtzapffel v. Baker, 18 Ves. 115. 88 Frommer v. Roessler (Com. PI.) 33 N. Y. Supp. 13; Lansing v. Van Al- stj-ne, 2 Wend. (N. Y.) 561; Carter v. Burr, 39 Barb. (N. Y.) 59; Fillebrown v. Hoar, 124 Mass. 580; Stevenson v. Lambard, 2 East 575; Friend v. Supply Co., 165 Pa. SL 052, 30 Atl. 1134. Cf. M'Loughlin v. Craig, 7 Ir. Com. Law, 117; Folts v. Huntley, 7 Wend. (N. Y.) 210; Morse v. Goddard, 13 Mete. (Mass.) 177; Big Black Creek Imp. Co. v. Kemmerer, 102 Pa. St. 422, 29 Atl. 739; Sylvester v. Hall, 47 111. App. 304. But see Ray v. Johnson, 98 Mich. 84, 56 N. W. 1048; Miller v. Maguire, IS U. 1. 770, 30 Atl. 966. § 82) RIGHTS AND LIABILITIES -OF LANDLORD AND TENANT. 141 bility for rent is at an end.*' It is customary to reserve a right of re-entry for nonpayment of rent."" S2. EIGHTS INDEPENDENT OF COVENANTS— As inci- dents of the relation, and independent of any cov- enants, the parties have the follo^wing rights: (a) The landlord has a right to protect the reversion (p. 141). (b) The tenant is entitled to exclusive possession (p. 142). (c) He may take estovers (p. 143). (d) He is entitled to emblements -when his estate is cut off by some contingency, without his fault (p. 143). (e) He is liable for waste (p. 143). (f) The lessee, and all persons claiming under him, are estopped to deny the lessor's title (p. 143). (g) The landlord may distrain for rent (p. 145). Although the rights and liabilities of the parties to a lease are ifixed to a large extent by the terms thereof, there are some which exist by virtue of the relation of landlord and tenant There is a «» Coulter V. Norton, 100 Mich. 389, 59 N. W. 163; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059; Morris v. KetUe (N. J. Sup.) 80 AU. 879; City Power Co. V. Fergus Falls Water Co., 55 Minn. 172, 56 N. W. G85, 1006; Leishman v. White. 1 Allen (Mass.) 489; Christopher v. Austin, 11 N. Y. 216; Graham v. Anderson, 3 Har. (Del.) 364; Bennet v. Bittle, 4 Rawle (Pa.) 339; Lewis T. Payn, 4 Wend. (N. Y.) 423; Colbum v. Morrill, 117 Mass. 262; Day v. Watson, 8 Mich. 535; Smith v. Stigleman, 58 111. 141; Pendleton v. Dyett, 4 Cow. (N. Y.) 581; Neale v. Mackenzie, 1 Mees, & W. 747; Cibel and Hill's Case, 1 Leon. 110; Burn v. Phelps, 1 Starkle, ^; Morrison v. Chad wick, 7 O. B. 266; McClurg v. Price, 59 Pa. St. 420. See, also, Grabenhorst v. Nicodemus. 42 Md. 236. See, also, Royce v. Guggenheim, 106 Mass. 201; Hoeveler v. Flem- ing, 91 Pa. St. 322. But cf. Smith v. Raleigh, 3 Camp, 513; Roper v. Lloyd, T. Jones, 148; Carrel v. Read, Cro.Eliz. 374; Don-el v. Andrews, Hub. 190; Paradine V. Jane, Aleyn, 26; Ecclesiastical Com'rs v. O'Connor, 9 Ir. Com. Law, 242; Lawrence v. French, 25 Wend. (N. Y.) 443; McKenzie v. Hatton, 141 N. Y. 6, 85 N. E. 929; Ogilvie v. Hull, 5 HiU (N. Y.) 52; Edgerton v. Page, 20 N. Y. 281; De Witt v. Pierson, 112 Mass. 8; Townsend v. Wharf Co., 117 Mass. 501. When no right of re-entry is reserved, the landlord's only remedy for a breach of covenant is an action for damages. Brown v. Kite, 2 Overt (Tenn.) 533; Den v. Post, 25 N. J. Law, 285. And see post, p. 150. 142 ESTATKS AS TO QUANTITY LESS THAN FRKEUOLD. (Ch. 7" tenure existing between tliem, the tenant holding of the landlord^ and paying rent in return for the use of the land. Of the right* growing out of this tenure, we need mention only the right of the landlord to protect the reversion by maintaining actions for acts which cause a permanent injury to the premises,"^ and that he may be liable to strangers for injuries resulting from the dan- gerous condition of the premises at the time the lease was exe- outed.^^ The tenant has a right to exclusive possession,®^ which includes the right to enjoy all easements "* servient to the demised »i Slarr v. Jackson, 11 Mass. 519; French v. Fuller, 23 Pick. (Mass.) 104; Little v. Palister, 3 Greenl. (Me.) 6; Austin v. Railroad Co., 25 N. Y. 334; Ay cock V. Railroad Co., 89 N. C. 321; Mayor, etc., of Cartersville v. Lyon, 69' Ga. 577; Jesser v. Gifford, 4 Burrows, 214i; Gulf, C. & S. F. Ry. Co. t. .Smith, 3 Tex. C^v. App. 483, 23 S. W. 89; Missouri, K. & T. Ry. Co. v. Ful- more (Tex. Civ, App.) 26 S. W. 238. But see Anthony v. Railway Co., 162 Mass. 60, 37 N. E. 780. »2 Bellows V. Sackett, 15 Barb. (N. Y.) 96; Moody v. Mayor, etc., 43 Barb. (N. Y.) 282; City of Peoria v. Simpson, 110 111. 294; Reichenbacher v. Pah- lueyer, 8 111. App. 217; Marshall v. Heard, 59 Tex. 206; Todd v. Flight, 9 0. B. (N. S.) 377; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507. So the landlord may be liable to the tenant for injuries, where the former retains control of part of the tenement. Elliott v. Pray, 10 Allen (Mass.) 378; Watkins v. Goodall, 138 Mass. 533; Alston v. Grant, 3 El. & Bl. 128; Phillips V. Ehrmann (City Ct. Brook.) 28 N. Y. Supp. 519; Payne v. Irvin, 144 111. 482, 33 N. E. 756; Davis v. Power Co., 107 Cal. 563, 40 Pac. 950; Mon- tieth V. Finkbelner, 66 Hun, 633, 21 N. Y. Supp. 288; PhiUips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478; Brunker v. Cummins, 133 Ind. 443, 32 N. E. 732. But see Moynihan v. Allyn, 162 Mass. 276, 38 N. E. 497; Free- man V. Hunnewell, 163 Mass. 210, 39 N. E. 1012; McLean v. Warehouse Co., 158 Mass. 472, 33 N. E. 499; Daley v. Quick, 99 Gal. 179, 33 Pac. 859. The tenant, while he has control of the premises, is liable to strangers for neg- ligence. Stickney v. Munroe, 44 Me. 195; Pickard v. Collins, 23 Barb. (N. Y.) 4-t4; Payne v. Rogers, 2 H. Bl. 349; Anheuser-Busch Brewing Ass'n v. Pe- terson, 41 Neb. 897, 60 N. W. 373; Lee v. McLaughlin, 86 Me. 410, 30 AtL 65. So he may be liable to the landlord for Injury to the premises. Ste- vens V. Pantlind, 95 Mich. 145, 54 N. W. 716; Wilcox v. Gate, 65 Vt 478, 26 Atl. 1105; Olsen v. Webb. 41 Neb. 147, 59 N. W. 520. 8 3 Kansas Inv. Co. v. Carter, 160 Mass. 421, 36 N. E. 63; Phelps v. Ran- dolph, 147 111. 335, 35 N. E. 243. And see Bentley v. City of Atlanta, 92 Ga. 623, 18 S, E. 1013. Any right of re-entry In the lessor Is entirely a reserved right. Heermance v. Vernoy, 6 Johns. (N. Y.) 5; Dixon v. Clow, 24 Wend» (N. Y.) 188; Parker v. Griswold, 17 Conn. 288; State v. Piper, 89 N. C. 551. »* See post, p. 349. § 82) RIGHTS AND LIABILITIES OF LANDLORD AND TENANT. 143 premises." He is entitled to estovers," but not to emblements,*^ unless his interest is terminated, without his fault, by some con- tingency happening during the term." If he causes a forfeiture, his subtenant is entitled to emblements.'* A lessee is liable for waste committed either by himself ^°° or another.^"^ But he may remove his chattel fixtures without any express permission in the lease.^" Estoppel to Deny Lessor's Title. A lessee is estopped to deny his lessor's title,^°* and the estoppel extends to all claiming under the lessee.'"* It can be set up by the 9B Crook V. Hewitt. 4 Wash. 749, 31 Pac. 2S. And see Marsh v. McNider, 88 Iowa, 390, 55 N. W. 469. The tenant is bound by any easements to which the land is subject. McDermott v. Raih-oad Co., 28 Hun (N. Y.) 325; Prescott V. White, 21 Picli. (Mass.) 342. »6 Hubbard v. Shaw, 12 Alien (Mass.) 120; Walters v. Hutchlns' Adm'x, 29 Ind. 136; Harris v. Goslin, 3 Har. (Del.) 340. 97 Carney v. Mosher, 97 Mich. 554, 56 N. W. 935; Gossett v. Drydale, 48 Mo. App. 430; Baker v. Mclnturff, 49 Mo. App. 505; Maclary v. Turner, 9 Houst. (Del.) 281, 32 Atl. 325; Monig's Adm'x v. Phillips (Ky.) 29 S. W. 970. And see 1 Stim. Am. St. Law, § 2064. »8 Gray v. Worst, 129 Mo. 122, 31 S. W. 585; Munday v. O'Neil (Neb.) 63 N. W. 32; Hubbard v. Berry, 10 Ind. App. 594, 38 N. E. 77. «» Bevans v. Briscoe, 4 Har. & J. (Md.) 139. But see Samson v. Rose, 65 N. Y. 411. They cannot be claimed by a mortgagee of the lessee. Gregg V. Boyd, 69 Hun, 588, 23 N. Y. Supp. 918. And one holding an estate for years as lessee of a tenant for life may claim emblements. Dorsett v. Gray, 98 Ind. 273; Bevans v. Briscoe, 4 Har. & J. (Md.) 139; Marshall, J., in Miller v. Shackleford, 4 Dana (Ky.) 277. 100 Thorndike v. Burrage, 111 Mass. 531; Nave v. Berry, 22 Ala. 382; Fen- ton V. Montgomery, 19 Mo. App. 156; Brooks v. Rogers, 101 Ala. Ill, 13 South. 386. 101 Cook V. Transportation Co., 1 Denio (N. Y.) 91; Wood v. Griffin, 46 N. H. 230; Donald v. Elliott (Cir. Ct.) 32 N. Y. Supp. 821. 102 Mason v. Fenn, 13 111. 525; Moore v. Wood, 12 Abb. Prac. (N. Y.) 393; Bircher v. Parker, 40 Mo. 118; Chandler v. Oldham, 55 Mo. App. 139; and ante, p. 19. Cf. Davidson v. Manufacturing Co., 99 Mich. 501, 58 N. W. 475; PendlU v. Maas, 97 Mich. 215, 56 N. W. 597; Wright v. Maedonnell, 88 Tex. 140, 30 S. W. 907; Goedeke v. Baker (Tex. Civ. App.) 28 S. W. 1039. 108 Wolf V. Holton (Mich.) 62 N. W. 174; Gray v. Johnson, 14 N. H. 414; Pope V. Harkins, 16 Ala. 321; Hamilton v. Pittock, 158 Pa. St, 457, 27 Atl. 104 See note 104 on following page. 144 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 heirs or assignees of the lessor/"" but the lessee can controvert the fact of an assignment.^**' So, against the heir, he may show that the reversion was devised to a third person. ^°^ Against the les- sor, he may show that the latter has parted with his interest since making the lease,**** for the lessee may have purchased the rever- sion from the lessor,"" or have paid the rent to the lessor's as- signee."" But he cannot assert an outstanding title which he has bought in,"* nor can he accept a lease from a stranger."' How- 1079; Sexton v. Carley, 147 111. 269, 35 N. E. 411; Knowles v. Murphy (Cal.) 40 Pac. Ill; McKisslck v. Asbby, 98 Cal. 422, 33 Pac. 729; Delaney v. Fox, 2 C. B. (N. S.) 768; Voss v. King, 38 W. Va. 607, 18 S. E. 762; Dixon v. Stewart, 113 N. C. 410, 18 S. E. 325; Hackett v. Marmet Co., 3 C. C. A. 76, 52 Fed. 268. But see Lakin v. Dolly, 53 Fed. 333; Chicago & A. R. Co. v. Keegan, 152 111. 413, 39 N. E. 33; Welder v. McComb (Tex. Civ. App.) 30 S. W. 822; McKlnnis v. Mortgage Co., 55 Kan. 259, 39 Pac. 1018; Suddarth V. Robertson, 118 Mo. 286, 24 S. W. 151. The rule has been extended to ad- joining lands gained by the tenant by disseisin. Doe v. Jones, 15 Mees. & W. 580; Doe v. Rees, 6 Car. & P. 610; Andrews v. Halles, 2 El. & Bl. 349. The old common-law rule that a disclaimer of the landlord's title would cause a forfeiture Is no longer the law. Fusselnaac v. Worthlngton, 14 111. 135; Newman v. Rutter, 8 Watts (Pa.) 51; Greeno v. Munson, 9 Vt. 37; Jackson v. Vincent, 4 Wend. (N. Y.) 633. But see Newman v. Rutter, 8 "Watts (Pa.) 51. Refusal to pay rent will not cause a forfeiture. Doe v. Wells, 10 Adol. «& E. 427; Kiernan v. Terry, 26 Or. 494, 38 Pac. 671. 104 Rose v. Davis, 11 Cal. 133; Russell v. Ei-wln's Adm'r, 38 Ala, 44. 50; Derrick v. Luddy, 64 Vt. 402, 24 Atl. 1050; McLennan v. Grant, 8 Wash. 603, 36 Pac. 682. Cf. Swan v. Busby, 5 Tex. Civ. App. 63, 24 S. W. 303. 106 Blantln v. Whitaker, 11 Humph. (Tenn.) 313; Russell v. Allard, 18 N. H. 225; State v. Votaw, 13 Mont. 403, 34 Pac. 315. 10 6 Despard v. Walbridge, 15 N. Y. 377; Beall v. Davenport, 48 Ga. 165. lOT Despard v. Walbridge, 15 N. Y. 377. And see Lane v. Young, 66 Hun, 503, 21 N. Y. Supp. 838. 108 Wolf V. Johnson, 30 Miss. 513; Horner v. Leeds, 25 N. J. Law, 106; Robinson v. Mining Co., 55 Mo. App. 662; Winn v. Strickland, 34 Fla. 610, 16 South. 606; Robertson v. Biddell, 32 Fla. 304, 13 South. 358; West Shore Mills Co. V. Edwards, 24 Or. 475, 33 Pac. 987. 109 Elliott V. Smith, 23 Pa. St. 131; George v. Putney, 4 Cush. (Mass.) 355; Camley v. Stanfield, 10 Tex. 546. 110 Stedman v. Gassett, 18 Vt. 346; Welch v. Adams, 1 Mete. (Mass.) 494; Magill V. Hinsdale, 6 Conn. 4G4. 111 Sharpe v. Kelley, 5 Denio (N. Y.) 431; Drane v. Gregory's Heirs, 3 B. 11 » See note 112 on following page. § 82) RIGHTS AND LIABILITIES OF LANDLORD AND TENANT. 145 ever, if there is an eviction under a paramount title, the tenant may take a new lease from the holder of such title, and it is not necessary that he be actually expelled from the premises, to jus- tify hira in so doing. It is sufficient if the right to evict is as- serted by one entitled to the possession, and the tenant in good faith accepts a new lease to avoid eviction.^^* Distress far Rent. At common law the landlord has a remedy, called "distress." ''* for enforcing the payment of rent, by seizing personal property Mon. (Ky.) 619; Elliott v. Smith, 23 Pa. St. 131; Morley v. Rodgers, 5 Yerg, (Tenn.) 217; Anderson v. Anderson, 104 Ala. 428, 16 South. 14. And see Barlow v. Dahm, 97 Ala. 414, 12 South. 293. 112 Doe V. Reynolds, 27 Ala. 364, 376; Russell v. Fabyan, 34 N. H. 223; Ragor V. McKay, 44 111. App. 79, But see Nash v. Springstead, 72 Hun, 474, 25 N. Y. Supp. 279. 118 Morse v. Goddard, 13 Mete. CMass.) 177: Simers v. Saltus, 3 Denlo (N. Y.) 217. And see Delaney v. Fox, 2 C. B. (N. S.) 775. 11* The other remedies of the lessor can only be enumerated. For rent, they are: Debt, Bordman v. Osbom, 23 Pick. (Mass.) 295; Allen v. Bryan, 5 Barn. & C. 512; assumpsit, Smith v. Stewart, 6 Johns. (N. Y.) 46; Chambers V. Ross, 25 N. J. Law, 293; Brolasky v. Ferguson, 48 Pa. St. 434; covenant. Gale V. Nixon, 6 Oow. (N. Y.) 445; Saltoun v. Houstoun, 1 Bing. 4.38; or bill in equity, Lawrence v. Hammett, 3 J. J. Marsh. (Ky.) 287; Livingston's Ex'rs V. Livingston, 4 Johns. Ch. (N. Y.) 287; North v. Strafford. 3 P. Wms. 148. For waste, are actions to prevent, Watson v. Hunter, 5 Johns. Ch. (N. Y.) 1(!9; and for damages, Harder v. Harder, 26 Barb. (N. Y.) 409; Queen's College v. Hallett, 14 East, 489; AttersoU v. Stevens, 1 Taunt 196. To recover posses- sion, are ejectment, Jackson v. Brownson, 7 Johns. (N. Y.) 227; Penn v. DiveUin, 2 Yeates (Pa.) 309; Cobb v. Lavalle, 89 111. 331; Colston v. McVay, 1 A. K. Marsh. (Ky.) 251; and summary proceeding given by statute in most states. Fratcher v. Smith (Mich.) 62 N. W. 832; Lewis v. Sheldon, 103 IMifh. 102, 61 N. W. 269; Marsters v. Cling, 163 Mass. 477, 40 N. E. 763. The losspe's actions are: Replevin, for wrongful distress. Hunter v. Le Conte, 6 C\)w. (N. Y.) 728; trespass, for interference with his possession, Taylor v. Cooper (Mich.) 62 N, W. 157; Hey v, Moorhouse, 8 Scott, 156; Van Brunt v. Sclienck. 11 Johns. (N. Y.) 385; Lunt v. Brown, 13 Me. 236; case, for excessive distress. Hare v. Stegall, 60 111. 380 (and see Fishburne v. Engledove, 91 Va. 5-18, 22 S. E. 354); and covenant, 2 Taylor, Landl. & Ten. (8th Ed.) 260. For the ac- tion of forcible entry and detainer, see 2 Tayl. Landl. & Ten. (8th Ed.) 396; 2 Wood. Landl. & Ten. (2d Ed.) 1374; Willard v. Wanen, 17 Wend. (N. Y.) 257; Toby v. Schultz, 51 111. App. 487; and post, p. 1G5. REAL PROP. —10 146 ESTATES AS TO QUANTITY — LESS THAN FREEHOLD. (Ch. 7 found on the demised premises.^^' This remedy exists in some of our states,"" while in maiiy others it is incorporated into the law of attachments and liens."^ It lies for all rents reserved which are certain."* The distraint may be made by the lessor, or the assignee of the reversion, for all the rent due.^^' It is now re- quired, in most states, that the warrant be executed by a legal officer.^^° At common law, any chattels ^^^ found upon the prem- ises could be distrained, whether belonging to the tenant, or to others,^''" though exception was made in favor of goods brought there in course of trade.^^' The tendency of modern decisions and statutes is to restrict the right of distraining to the property of the lessee.^ ^* There is a right to sell the goods taken, if they are not redeemed within the time fixed by the statutes.^"' 118 2 Tayl. Landl. & Ten. (8th Ed.) 1G8; 2 Wood, Landl. & Ten. (2d Ed.) 1305; Newman v. Anderton, 2 Bos. & P. (N. R.) 224. Gf. Beeszard v. Capel, 8 Barn. & C. 141 ; Preseott v. Boucher, 3 Barn. & Adol. 849. 116 2 Tayl. Landl. & Ten. (Sth Ed.) 170. iiT See 1 Stim, Am. St. Law, §§ 2031-2036. And see Willard v. Rogers, 54 111. App. 583; Rogers v. Grigg (Tex. Civ. App.) 29 S. W. 654; Belser v. Youugblood, 103 Ala. 545, 15 South. 863; Manhattan Trust Co. v. Sioux City & M. Ry. Co., 68 Fed. 72; Smith v. Dayton (Iowa) 62 N. W. 650; Toney v. Goodley, 57 Mo. App. 235; Ballard v. Johnson, 114 N. O. 141, 19 S. E. 98. 118 Stewart v. Gregg, 42 S. C. 392, 20 S. E. 193. Cf. Tutter v. Fryer, Winch, 7; Paxton v. Kennedy, 70 Miss. 865, 12 South. 546. 119 Slocum V. Clark, 2 Hill (N. Y.) 475; Lathrop v. Clewis, 63 Ga. 282. But not by executor for rent accruing in decedent's lifetime. Preseott v. Bouch- er. 3 Barn. & Adol. 849. Cf. — v. Cooper, 2 Wils. 375; Parmenter v. Web- ber, 8 Taunt. 593. 120 For the details and procedure the student must consult the statutes of his state. 121 Unless of a perishable nature. Morley v, PIncombe, 2 Exch. 101. And see Van Sickler v. Jacobs, 14 Johns. (N. Y.) 434. 122 2 Wood, Landl. & Ten. (2d Ed.) 1310; Blanche v. Bradford, 38 Pa. St. 344; Spencer v. McGowen, 13 Wend. (N. Y.) 256. And see Paine v. Lock Co., 64 Miss. 175, 1 South. 56; Davis v. Payne's Adm'r, 4 Rand. (Va.) 332. 123 Brown v. Stackhouse, 155 Pa. St. 582, 26 Atl. 669; Cadwalader v. Tin- dall, 20 Pa. St, 422; Knowles v. Pierce, 5 Houst. (Del.) 178; Block v. La- tham, 63 Tex. 414. 124 2 Tayl. Landl. & Ten. (Sth Ed.) 197; Connah v. Hale, 23 Wend. (N. Y.) 475; Peacock v. Purvis, 2 Brod. & B. 362. 12 5 2 Wood, Landl. & Ten. (2d Ed.) 1322; 2 TayL Landl. & Ten. (8th Ed.) 214. The right to sell was first given by the statute of 2 W. & M. c. 5. § 83) TRANSFER OF ESTATES FOR YEARS. 147 SAME— TRANSFER OF ESTATES FOR YEARS. 83. After an estate for years has been created, the inter- erests of the parties are transferable. The transfer may be: (a) By act of parties, as -where : (1) The lessor assigns the rent or the reversion, or both (p. 147). (2) The lessee (p. 148) (I) Assigns his term, in which case the as- signee is liable on all covenants running ■with the land. (II) Sublets his term, in which case the sub- lessee is liable only to the sublessor. (b) By operation of law, as where (p. 149): (1) The interest of either party is taken on execu> tion. (2) On the lessor's death, his interest goes to his heirs or devisees. (8) On the lessee's death, his interest goes to his personal representative. Transfer hy Lessor. Unless restrained by express covenants,^'" either the lessor or the lessee may transfer his interest under a lease.^*^ The require- ments of the statute of frauds are the same for an assignment or a subletting as for the original lease.^^* An assignee of the re- version is entitled to receive the rents from the tenant after giv- ing notice of the assignment.^'^' Such assignee can enforce, and 126 Or by statute, as lessee is in a few states. 1 Stim. Am. St. liaw, § 2043; 2 Shars. & B. Lead. Cas. Real Prop. 83. HT Dixon V. Buell, 21 111. 203; Webster v. Nichols, 104 111. 160; Crommelin V. Thiess, 31 Ala. 412, 421; WoodhuU v, Rosenthal. 61 N. Y. 3S2; Gould v. School Dist., 8 Minn. 427 (Gil. 382); Indianapolis Manufacturing & Carpen- ters' Union v. Cleveland, C, C. & I. Ry. Co., 45 Ind. 2S1; Rex v. Inhabitants of Aldborough, 1 East, 597. J 28 Bedford v. Terhune, 30 N. Y. 453. "» Hunt v. Thompson, 2 Allen (Mass.) 341; O'Connor v.. Kelly, 41 Cal. 432; 148 ESTATES A3 TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 {s liable on, covenants running with the land.^'° The lessor may assign the rent to one man, and the reversion to another, or he may assign one and keep the other.^*^ So, too, he may split up the reversion into parcels, but the rent cannot be made payable to several without the consent of the tenant.^'* Transfer hy Lessee. The lessee may either assign or sublet.^^' If the interest con- veyed by him is for a shorter time than his own term, even by a day, it is a sublease; ^'"^ aud some cases hold that the reservation by the original lessee of a right of entry will have the same ef- fect.^ ^° But there may be an assignment of part of the prem- Moffatt V. Smith, 4 N. Y. 126; Childs v. Clark, 3 Barb. Ch. (N. Y.) 52; Watson y, Hunklns, 13 Iowa, 547; Page v. Culver, 55 Mo. App. 606. Prior to the statute of 4 Anne, c. 16, § 9 (which has been generally adopted in the United States), it was necessary that the tenant should agree to accept the assignee of the reversion as his landlord. This was called an "attornment." Fisher v. Deering, 60 111. 114; Burden v. Thayer, 3 Mete. (Mass.) 76; Tilford v. Flem- ing, 64 Pa. St. 300; Mortimer v. O'Reagan, 10 Phila. (Pa.) 500. But see Pox's Case, S Coke, 936. Attornment Is not now necessary, in most states. 2 Tayl. Landl. & Ten. (8th Ed.) 224; 1 Stim. Am. St. Law, § 2009; Perrin v. Lepper, 34 Mich. 292. Contra, Fisher v. Deering, 60 111. 114; Duke v. Compton, 49 Mo. App. 304. ISO Astor V. Miller, 2 Paige (N. Y.) 68; Stevenson v. Lambard, 2 East, 575; Burton v. Barclay, 7 Bing. 745; Van Home v. Grain, 1 Paige (N. Y.) 4.55; Sutherland v. Goodnow, 108 111. 528; Campbell v. Lewis, 3 Barn. & Aid. 392; JKJng V. Jones, 5 Taunt. 418. »3i Co. Litt 47a; McMurphy v. Minot, 4 N. H. 251; Crosby v. Loop, 13 lU. 025; Dixon v. Nlccolls, 39 111. 372, 384; Van Rensselaer v. Hays, 19 N. Y. 68, 99; Wineman v. Hughson, 44 111. App. 22. 182 Ryerson v. Quackenbush, 26 N. J. Law, 254; Ards v. Watidn, Cro. Eliz. 637. 183 So he may mortgage his interest. Menger v. Ward, 87 Tex. 622, 30 S. W. 853. And see Barrett v. Trainor, 50 III. App. 420; Drda v. Schmidt, 47 111. App. 267; Menger v. Ward (Tex. Civ. App.) 28 S. W. 821. Contra, as to a lease on shares. Lewis v. Sheldon, 103 Mich. 102, 61 N. W. 269. Assignment and subletting without lessor's consent may be restrained by covenant. Ray- mond V. Hodgson, 55 111. App. 423; Shannon v. GrindstafC, 11 Wash. 536, 40 Pac. 123. 134 Post V. Kearney, 2 N. Y. 394; Collins v. Hasbrouck, 56 N. Y. 157. 18 6 Linden v, Hepburn, 3 Sandf. (N. Y.) 668; People v. Robertson, 39 Barb. <>N. Y.) 9; Doe v. Bateman, 2 Barn. & Aid. 168. And see 1 Wood, Landl. & Ten. (2d Ed.) 178. I 83) TRANSFER OF ESTATES FOR YEARS. 149 ises.^"" In the case of a sublease, the subtenant is not liable for rent to the original lessor, or on the covenants of the oric^inal lease.^" But an assignee Is liable to the original lessor on all the covenants which run with the land.^" The lessee continues liable after he has assigned, on express covenants.^" But an as- signee may avoid future obligation by assigning over, whether there is an express covenant or not.^*<* The lessee and his as- signee or sublessee may insert any covenants they choose in the in- strument of transfer, and so regulate their obligations to each other. Transfer hy Operation of Law» Both the reversion and the term are subject to involuntary alien- ation, such as sale on execution. A purchaser assumes the rights and liabilities of an assignee.^*^ An assignee in banl^ruptcy or insolvency does not become liable as assignee of a term owned by his assignor until he has had a reasonable time to ascertain whether it is an available asset. Before then he is not presumed to accept.^*' A lessee may dispose of his estates for years by 136 Cook \. Jones (Ky.) 28 S. W. 960. But see Shannon v. Grindstaff, 11 Wash, 536, 40 Pac. 123. 18T 1 Tayl. Landl. & Ten. (8th Ed.) § 16; 1 Wood, Landl. & Ten. (2d Ed.) 181; Trustees of Dartmouth College v. Clough, 8 N. H. 22. But he may pay rent to avoid eviction. Peck v. Ingersoll, 7 N. Y. 528. 13 8 Fennell v. GuCfey, 155 Pa. St. 38, 25 Atl. 785; Sanders v. Partridge, 108 Mass. 556. But of. Dey v. Greenebaum, 82 Hun, 533, 31 N. Y. Supp. 610. 139 Grommes v. Trust Co., 147 111. 634, 35 N. E. 820; Wineman v. Phillips, 93 Mich. 223, 53 N. W. 168; Oonrady v. Bywaters (Tex. Civ, App.) 24 S. W. 961; Bouscaren v. Brown, 40 Neb. 722, 59 N. W. 385; Charless v. Froebel, 47 Mo. App. 45; Pittsburg Consol. Coal Co. v. Greenlee, 164 Pa. St, 549, 30 Atl. 489; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Walker's Case, 3 Coke, 22a; Calborne v. Wright, 2 Lev. 239. 140 McBee v. Sampson, 66 Fed. 416; Armstrong v. Wheeler, 9 Cow. (N. Y.) 88; Childs v. Clark, 3 Barb. Ch. (N. Y.) 52; Tlbbals v. Iffland, 10 Wash. 451, 39 Pac. 102. But see Consolidated Coal Co. v. Peers, 150 111. 344, 37 N. E. 937; Drake v. Lacoe, 157 Pa. St. 17, 27 Atl. 538; Lindsley v. Brewing Cc 59 Mo. App. 271. 141 McNeil V. Ames, 120 Mass. 481; Lancashire v. Mason, 75 N. O. 455. i42Pi-att V. Levan, 1 Miles (Pa.) 358; Bagley v. Freeman, 1 Hilt. (N. Y.) 196; Copeland v. Stephens, 1 Bam. & Aid. 594; Carter t. Warne, 4 Car & P. 191. 160 ESTATES A3 TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 will,^*» but if he fail to do so they pass on his death to his per- sonal representative, who thus becomes an assignee.'** The re- version, if not disposed of, is subject to the ordinary rules govern- ing the descent of realty; and the rent follows the reversion, un- less it has been separately assigned.^** SAME— TERMINATION OF ESTATES FOR YEARS. 84. An estate for years may be terminated: (a) By lapse of time (p. 150). (b) By forfeiture (p. 150). (c) By merger (p. 152). (d) By surrender (p. 152). (e) By destruction of the premises, in some cases (p. 153). (f) By an exercise of the power of eminent domain (p. 153). Lapse of Time. Estates for years in most cases determine by mere lapse of time; that is, the period for which the lease was made expires, and the term is thereby at an end, withojit any notice by either party.'*' Forfeiture, When the continuance of a term Is made to depend on a condi- tion, or there is a reservation of a right of re-entry for breach of i*s They pass by a devise of "personal estate." Brewster v. Hill, 1 N. EL 350. 1*4 Martin v. Tobin, 123 Mass. 85; Sutter v. Lackmann, 39 Mo. 91; Mur- dock V. Ratcliff, 7 Ohio, 119. But the rule Is otherwise in a few states, by statute. 2 Shars. & B. Lead. Cas. Real Prop. 40. The lessee's estate con- tinues liable for the rent. Hutehings v. Bank, 91 Va. 68, 20 S. E. 950. 146 Lewis V. Wilkias, Phil. Eq. (N. C.) 303. 148 Smith V. Snyder, 1G8 Pa. St. 541, 32 Atl. 64; Bedford v. M'Elherron, 2 Serg. & R. 49; Ackland v. Lutley, 9 Adol. & E. 879; Poppers v. Meagher, 148 111. 192, 35 N. E. 805; Duuphy v. Goodlander, 12 Ind. App. 609, 40 N. H. 924; Williams y. Mershon (N. J. Sup.) 30 Atl. 619; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794. And the tenant becomes a wrongdoer if he re- fuses to surrender possession. Frost v. Iron Co., 12 Misc. Rep. 348, 33 N. Y. Supp. 654; Jackson v. Parkhurst, 5 Johns. (N. Y.) 128; Ellis v. Paige, 1 Pick. (Mass.) 43; Bedford v. M'Elherron, 2 Serg. & R. (Pa.) 49. § 84) TERMINATION OF ESTATES FOR YEARS. 151 the covenants of the lease, an entry in either instance puts an end to the tenn.^*'' The courts are, however, rather averse to en- forcing forfeitures;^** and when the breach is due to accident or mistake, and can be compensated in damages, as it usually can be in the case of rent, relief will be granted the tenant.^** The relief does not extend to cases where the damages are not a mere matter of computation, as where there is a breach of a covenant not to assign, or a covenant to repair.^ °° Ke-entry for forfeiture is optional with the lessor.^ °^ The lessee cannot insist upon it, and so avail himself of his own breach/'** Acceptance of rent accruing after a breach will be a waiver of the forfeiture,^"^' but acceptance of rent due before the breach will not.^''* Other acts of the landlord may also constitute a waiver.^**"^ 147 See Carnegie Nat. Gas Co. v. Philadelphia Co., 158 Pa. St. 317, 27 Atl. 951; Heinouer v. Jones, 159 Pa. St. 228, 28 Atl, 228. In a few states the statutes require a short notice. 1 Stim. Am. St. Law, §§ 2054, 2055. 148 See Sommers v. Reynolds, 103 Mich. 307, 61 N. W. 501; Dralie v. Lacoe, 157 Pa. St. 17, 27 Atl. 538. When there Is a clause of forfeiture for nonpayment of rent a demand must be made therefor on the land, at the front door of the house, if there is a house, and at a convenient time before sunset of the very day the rent falls due, unless a demand is dispensed with by the terms of the lease. 2 Tayl. Landl. & Ten. § 493; Smith v. Whit- beck, 13 Ohio St. 471; Jackson v. Harrison, 17 Johns. (N. Y.) 66; Van Rens- selaer V. Snyder, 9 Barb. (N. Y.) 302; Connor v. Bradley, 1 How. 211; Fay- lor V. Brice, 7 Ind. App. 551, 34 N. E. 833. Cf. Haynes v. Investment Co., 85 Neb. 766, 53 N. W. 979. But see Shanfelter v. Horner (Md.) 32 Atl. 184. Under the statutes of many states, the landlord may terminate the ten- ancy, for nonpayment of rent, without any agreement to that effect. 1 Stim. Am. St. Law, § 2054. 140 Baxter v. Lansing, 7 Paige (N. Y.) 850; Gregory v. Wilson, 9 Hare, 683; Nokes v. Gibbon, 3 Drew. 681. But see Rolfe v. Harris, 2 Price, 206, note; Cage v. Russel, 2 Vent. 352. 160 2 TayL Landl. & Ten. (8th Ed.) 81. 151 Cochi-an v. Pew. 159 Pa. St. 184, 28 Atl. 219. Or his assignee, who may also claim it 2 Tayl. Landl, & Ten. (8th Ed.) 75. And see Wilson v. Gold- Btein, 152 Pa. St. 524, 25 Atl, 493. 152 Gibson v. Oliver, 158 Pa. St. 277, 27 Atl. 961; Brady v. Nagle (Tex. Civ. App.) 29 S. W. 943; Amsby v. Woodward, 6 Bam. & O. 519; Reid v. Parsons, 2 Chit. 247. 163 Jackson v. Sheldon, 5 Cow. (N. Y.) 448; Bleecker v. Smith, 13 Wend. 164 See note 154 on following page, ib6 See note 155 on following page. 152 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 Merger. An estate for years may be terminated by a merger, as where the fee is acquired by the tenant for years.^"' An estate for years will merge in a life estate,*'^ or in another term of years/ "^^ as well as in the fee. Surrender. A surrender ^"' will terminate an estate for years,*'" but only when made to the holder of the next estate. Therefore an under- (N. Y.) 530; Gomber v. Hackett, 6 Wis. 323; Newman v. Rutter, 8 Watts (Pa.) 51; Doe v. Rees, 4 Bing. N. C. 384; Doe v. Johnson, 1 Starkie, 411; Clark v. GrpeuQeld (Com. PL) 34 N. Y. Supp. 1; Koehler v. Brady, 78 Hun, 443, 29 N. Y. Supp. 388; Michel v. O'Brien, 6 Misc. Rep. 408, 27 N. Y. Supp. 173; Brooks V. Rodgers, 99 Ala. 433, 12 South. 61. The landlord must have knowledge of the breach. Jackson v. Schutz, 18 Johns. (N. Y.) 174; People's Bank v. Mitchell, 73 N. Y. 400; Garnhart v. Finney, 40 Mo. 449; Roe v. Harrison, 2 Term R. 425; Barber v. Stone (Mich.) 62 N. W. 139; Stover v. Hazelbaker. 42 Neb. 393. 60 N. W. 597; Bowling v. Crook, 104 Ala. 130, 16 South. 131. But see Miller v. Prescott, 163 Mass. 12, 39 N. B. 409. 154 Jackson v. Allen, 3 Cow. (N. Y.) 220; Hunter v. Osterhoudt, 11 Barb. (N. Y.) 33; Conger v. Duryee, 24 Hun (N. Y.) 617; Frazier v. Caruthers, 44 111. App. 61; Carraher v. Bell, 7 Wash. 81, 34 Pac. 469. 165 Lynch v. Gas Co., 165 Pa. St. 518, 30 Atl. 984; Nelson v. Eachel, 158 Pa. St. 372, 27 Atl. 1103; Frazier v. Caruthers, 44 111. App. 61; Deaton v. Taylor, 90 Va. 219. 17 S. E. 944; Little Rock Granite Co. v. Shall, 59 Ark. 405. 27 S. W. 562. But see Cleminger v. Gas Co., 159 Pa. St. 16, 28 Atl. 293; Williams V. Vanderbilt, 145 111. 238, 34 N. E. 476; Jones v. Durrer, 96 Cal. 95, 30 Pac. 1027; Moses v. Loomis, 156 111. 392, 40 N. E. 952; Doe v. Meux, 4 Barn. & G. 606; Balfour v. Russell, 167 Pa. St. 287, 31 Atl. 570. A notice to quit at the end of a certain time, given after the breach, may constitute a waiver. Doe v. Miller. 2 Car. & P. 348; Doe v. Allen, 3 Taunt. 78. 156 Roberts v. Jackson, 1 Wend. (N. Y.) 478; Carroll v. Ballance, 26 lU. 19; McMahan v. Jacoway (Ala.) 17 South. 39. Merger will also destroy cove- nants incident to the reversion. Webb v. Russel, 8 Term R. 393; Thorn v. Woollcombe. 3 Barn. & Adol. 586. 157 Even though the term be longer than the life estate can possibly last. 1 Waslih. Real Prop, (,5th Ed.) 586. 158 4 Kent. Comm. (12th Ed.) 99. The second term need not be as long as the term to be merged. Stephens v. Bridges. 6 Madd. 66. 159 For a definition of a surrender, and the requisites for. see post, P408. 180 Conway v. Carpenter. SO Hun, 428. 30 N. Y. Supp. 315; Honks v. Forst, 105 Pa. St. 23S, 30 AtL 846; Wolf v. Guffey. 161 Pa. St. 276, 28 Atl. 1117; Barn- hart V. Lockwood, 152 Pa. St. 82, 25 Atl. 237; May v. Oil Co., 152 Pa. St. 518, § 84) TERMINATION OF ESTATES FOR YEARS. 155 lessee cannot surrender to the original lessor.^'* The making of a new lease may op)erate as a surrender of the old one.^" Destruction of Premises. The destruction of the premises — for instance, where a room is leased, and the whole house is burned — puts an end to the tenancy, because the subject-matter of the lease has ceased to exist/ ^^ This is not true, of course, in the absence of an agreement, where the part destroyed is not the whole subject of the lease, as where a house and lot are leased, and the house is destroyed.^"* Taking under Power of Eminent Domain. If the demised premises are taken under the power of eminent domain, the relation of landlord and tenant comes to an end.^®* But, if only a part is taken, both lessor and lessee can claim com- pensation for the taking, and the tenancy continues.^^* 25 Atl. 564; Williams v. Vanderbilt, 145 111. 238, 34 N. E. 476; Smith v. Pender- gast, 26 Minn, 318, 3 N. W. 978; Nelson v. Thompson, 23 Minn. 508. See Burnham v. O'Grady, 90 Wis. 461, 63 N, W. 1049; Hooks v. For&t, 165 Pa. St. 238, 30 Atl. 846; Aderhold v. Supply Co., 158 Pa. St. 401, 28 Atl. 22; Hough v. Brown (Mich.) 62 N. W. 143; National Union Bldg. Ass'n v. Brewer, 41 111. App. 223. The surrender must be accepted. Pendill v. Mining Co. (Mich.) 62 N. W. 1024; Joslin v. McLean, 99 Mich. 480, 58 N. W. 467; Stevens v. Pantlind. 95 Mich. 145, 54 N. W. 716; Lane v. Nelson, 167 Pa. St. 602, 31 Atl. 864; Reeves V. McComeskey, 168 Pa. St. 571, 32 Atl. 96; Rees v. Lowy, 57 Minn. 381, 59 N. W. 310; Stern v. Thayer, 56 Minn. 93, 57 N. W. 329. 161 2 Wood, Landl. & Ten. (2d Ed.) 1152; 2 Tayl. Landl, & Ten. (8th Ed.) 95. 162 Walker v. Githens, 156 Pa. St. 178, 27 Atl. 36; Evans v. McKanna, 89 Iowa, 362, 56 N. W. 527. But see Witmark v. Railroad Co., 76 Hun, 302, 27 N. Y. Supp. 777. Cf. Beal v. Car-Spring Co., 125 Mass. 157. 168 Hecht v. Herrwagen, 13 Misc. Rep. 316, 34 N. Y. Supp. 456; Graves v. Berdan, 26 N, Y. 498; Ainsworth v. Ritt, 38 Cal. 89; Buschman v. Wilson. 2!9 Md. 553. This is regulated by statute in some states. 1 Stim. Am. St. Law, § 2062. And see Craig v. Butler, S3 Hun, 286, 31 N. Y. Supp. 963; Fleischman v. Toplitz, 134 N. Y. 349, 31 N. E. 1089. 164 Phillips v. Stevens, 16 Mass. 238; Davis' Adm'r v. Smith, 15 Mo. 467; Ross v. Overton, 3 Call (Va.) 309. But see New York Real-Estate & Bldg. Imp. Co. V. Motley, 143 N. Y. 156, 38 N. E. 103; Hunnewell v. Bangs, 161 Mass. 132, 36 N. E. 751; Meyer v. Henderson (La.) 16 South. 729. 16 6 Barclay v. Picker, 38 Mo. 143. 166 Parks v. City of Boston, 15 Pick. (Mass.) 198; Workman v. Mifflin, 30 Pa. St. 362; City of Chicago v. Garrity, 7 111. App. 474; Foote v. City of Cin- 154 ESTATES AS TO QUANTITY — LESS THAN FREEHOLD. (Ch. 7 LETTING LAND ON SHARES. 85. A letting of land on shares may make the cultivator: (a) A servant. (b) A co-tenant. (c) A lessee. Land is often cultivated under an agreement by which both the owner and the cultivator are to share in the crop.^*^ Such an agreement may establish the relation of employer and employd between the parties, a share of the crops being given in lieu of wages/'* or they may be tenants in common of the crop,^'® or the transaction may constitute a leasing with a rent payable in crops, and the usual incidents of the relation of landlord and tenant ex- ist.^^° Probably no rule can be laid down for determining the re- cinnatl, 11 Ohio, 408. And see Corrigan v. City of Chicago, 144 111. 537, 33 N. E. 74G. 187 Such holdings are now regulated by statute in some states. See 1 Stim. Am. St Law, § 2037. The cropper, or one farming on shares, cannot assign his interest. McNeeley v. Hart, 10 Ired. (N. C.) 63. 168 Tanner v. Hills, 48 N. Y. 6G2; Steel v. Frick, 56 Pa. St. 172; Chase v. McDonnell, 24 111. 236; Gray v. Robinson (Ariz.) 33 Pac. 712; Haywood v. Rogers, 73 N. C. 320; i-Jeal v. Bellamy, Id. 384. But see Harrison v. Ricks, 71 N. C. 7; State v. Jones, 2 Dev. & B. (N. C.) 544. Possession and property in the crop remain in the owner of the land. Adams v. McKesson's Ex'x, 53 Pa. St. 81; Appling v. Odom, 46 Ga. 583. 169 Walker v. Fitts, 24 Pick. (Mass.) 191; Creel v. Kirkham, 47 111. 344; De Mott V. Hagerman, 8 Cow. (N. Y.) 220; Dinehart v. Wilson, 15 Barb. (N. Y.) 595; Wilber v. Sisson, 53 Barb. (N. Y.) 258; Edgar v. Jewell, 34 N. J. Law, 259. And see Wood v. Noack, 84 Wis. 398, 54 N. W. 7S5; Caswell v. Districh, lo Wend. (N. Y.) 379; Jones v. Durrer, 96 Cal. 95, 30 Pac. 1027; Lowe v. Miller, 3 Grat. (Va.) 205; Moser v. Lower, 48 Mo. App. 85. The usual inci- dents of a tenancy in common attach to such holdings. McLaughlin v. Sal- ley, 46 Mich. 219, 9 N. W. 256; Otis v. Thompson, 1 Hill & D. (N. Y.) 131; Daniels v. Brown, 34 N. H. 454; Ferrall v. Kent, 4 Gill (Md.) 209; Hard v. Darling, 14 Vt. 214. For tenancy in common, see post, p. 335, 170 Walworth v. Jenness, 58 Vt. 670, 5 Atl. 887; Yates v. Kinney, 19 Neb. 275, 27 N. W. 132; Alwood v. Ruckman, 21 111. 200; Dixon v. Niccolls, 39 111. 372; Jackson v. Brownell, 1 Johns. (N. Y.) 267; Johnson v. Hoffman, 53 Mo. 504. Cf. Barry v. Smith, 69 Hun, 88, 23 N. Y. Supp. 261; Rich v. Hobson, 112 N. G. 79, 16 S. E. 931. The right of the landlord to the crop attaches only § 87) TENANCIES AT WILL CREATION. 155 suit of sucli an agreement which will hold good in all cases. The intention of the parties is in every instance to be given full effect.^"' ^ But if the owner is to receive a definite amount of grain or other produce, not confined to crops grown on the premises, he receives it as lessor.^^' TENANCIES AT WILL. 86. A tenancy at will is a letting of land to be held so long as neither party chooses to terminate it. SAME— CREATION. 67. Tenancies at ■will are created: (a) By a letting for an indefinite period, not in a form to pass a freehold, and without a reservation of rent. (b) By express agreement. (c) By implication of law. A tenancy at will is where a person is in possession of land let to him to hold at the will of the lessor. The tenancy, however, is one at the will of either party. A general letting without limi- tation as to duration of a term (not being in a form to pass an es- tate of freehold), or a mere permission to enter and occupy, creates a tenancy at will, provided no rent is reserved. The reservation of a rent raises a presumption that the tenancy is from year to year. on delivery. Burns v. Cooper, 31 Pa. St. 426; Caswell v. Districh, 15 Wend. (N. Y.) 379; Butterfield v. Baker, 5 Pick. (Mass.) 522; Alwood v. Euckman. 21 lU. 200; Dixon v. Niccolls, 39 111. 384; McLellan v. Whitney, 65 Vt 510, 27 Atl. 117. But see Moulton v. Robinson, 27 N. H. 550; Horseley v. Moss, 5 Tex. Civ. App. 341, 23 S. W. 1115; Gray v. Robinson (Ariz.) 33 Pac. 712; Consolidated Land & Irrigation Co. v. Ha'vley (S. D.) 63 N. W. 904. The rent is only due at hai-vest time. Lamberton v. StouEfer, 55 Pa. St. 284; Co- bel v. Cobel, 8 Pa. St. 342. But see Dixon v. Niccolls, 39 111. 372. iTi Dixon V. Niccolls, 39 111. 3S4, 386; Lewis v. Lyman, 22 Pick. (Mass.) 437; Armstrong v. Bicknell, 2 Lans. (N. Y.) 216; Moulton v. Robinson, 27 N. H. 550. But see Birmingham v. Rogers, 46 Ark. 254. 17 2 Hoskins v. Rhodes, 1 Gill & J. (Md.) 266; Newcomb v. Ramer, 2 Johns. (N. Y.) 421, note; Dockham v. Parker, 9 Greenl. (Me.) 137. And see Caruthers V. Williams, 58 Mo. App. 100. 156 ESTATES AS TO QUANTITY LESS THAN FREKHOLD. (Cil. 7 A tennncy at will may, of course, be created by express aj^ree- meiit, even with a reservation of rent, if apt words are employed."* It also arises by implication of law. In such cases the entry is usually for some other purpose than to create a tenancy. Thus one who enters under a contract to purchase, and remains after the nejiotiation has fallen throuj^h, becomes a tenant at will.^''* So a vendor or lessor, by continuing in possession, may become a tenant at will."* SAME— INCIDENTS. 88. The principal incidents of a tenancy at will are the foi- lo\ying: (a) The tenant is entitled to emblements, unless he ter- minates the tenancy himself. (b) He must not commit waste. (c; His interest cannot be sold on execution. 173 Leake, Land. 208. Cf. Doe v. Cox, 11 Q. B, 122. 174 Doe V. Cbambeilaine, 5 Mees. & W. 14; Doe v. Miller, 5 Car. & P. 595; Gould V. Thompsou, 4 Mete. (Mass.) 224; Manchester v. Doddridge, 3 Ind. 3G0. Entry under a parol contract to purcbase creates a tenancy at will. Hall V. Wallace, 88 Cal. 4S4, 26 Pac. 3U0. But if the sale is not consum- mated, by fault of the vendee, he becomes a mere trespasser, and liable only in tort for the mesne profits. Prentice v. Wilson, 14 111. 91; Howard v. Shaw. 8 Mees. & W. 118; Smith v. Stewart, G Johns. (N. Y.) 4G; Clou^rh v.. Hosford, f) N. H. 231; Bell v. Ellis' Heirs, 1 Stew. & P. (Ala.) 294; Glascock: V. Robards. 14 Mo. liuO. A tenancy at will arises when possession is taken under an agreement for a lease, Childers v, Lee (N. M.) 25 Pac. 781; Weed- V. Lindsay. 88 Ga. G86, 15 S. E. 83G; Mayor, etc., of Thetford v. Tyler, 8 Q. B. 95; or under a parol lease for more than the time allowed by the statute of frauds, Jennings v. McComb, 112 Pa. ^t. 518, 4 Atl. 812; Talamo v. Spitz- miller. 120 N. Y. 37, 23 N. E. 980. But if rent is paid the holding is from year to year. Doe v. Amey, 12 Adol. & E. 47G; Barlow v. Wainwrlght, 22. Vt. 88. 17B Howard v. Merriam, 5 Cush. (Mass.) 5G3; Bennett v. Robinson, 27 Mich. 2G; Tarlotting v. Bokern, 95 Mo. 541, 8 S. W. 547; Brooks v. Hyde, 37 Cal. 3G6; Sherburne v, Jones, 20 Me. 70; Currier v. Earl, 13 Me. 216. So of a. debtor remaining In possession after execution sale. Nichols v. Williams, 8 Cow. (N. Y.) 13. But see Tucker v. Byers, 57 Ark. 215, 21 S. W. 227; Groome Y. Almstead, 101 Cal. 425, 35 Pac 1021. § 89) TENANCIES AT WILL TERMINATION. 157 If the tenant at will puts an end to the relation of lessor and lessee, he is not entitled to emblements/^* but he is so entitled when the lessor causes the termination of the tenancy.^" The tenant's interest is forfeited for waste.^''* Estates at will are chattel interests, but cannot be sold on execution."' SAME— TERMINATION. 89. A tenancy at will may be terminated at any time by either party -without notice, except: EXCEPTION'S — (a) The parties may agree to give notice, (b) In some states, notice is required by statute. At common law, the parties to a tenancy at will terminate it at any time either one chooses to do so, and without giving any pre- vious notice of such intention to the other party. The parties may, of course, by agreement, provide for any kind of a notice they choose, and for any length of time before terminating the tenancy. The statutes of many states now require a notice before a ten- ancy at will can be terminated.^ ^° Where such notice is not re- quired, and the parties have not stipulated for one, either landlord or tenant may put an end to the tenancy by almost any act which shows such an intention.^'^ Any assertion by the lessor of his right to possession terminates the tenancy.^** An assignment by 176 Carpenter v. Jones, 63 111. 517. 17 7 Sherburne v. Jones, 20 Me. 70; Davis v. Thompson, 13 Me, 209; Simp- kins V. Rogers, 15 111. 397; Harris v. Frink, 49 N. Y. 24, 178 Daniels v. Bond, 21 Pick. (Mass.) 367; Phillips v. Ck)vert, 7 Johns. (N. Y.) 1; Rapallo, J., in Harris v. Frink, 49 N. Y. 33. And see Perry v. CaiT, 44 N, H. lis. 178 1 Stim, Am. St Law, § 1344; 2 Shars. & B, Lead, Cas. Real Prop. 169, 180 The length of notice required ranges from a few days to three months. 1 Stim. Am. St. Law, § 2051; 2 Shars. & B. Lead. Cas. Real Prop. 177, Cf. Morgan v. Powers, S3 Hun, 298, 31 N. Y. Supp. 954. 181 2 Tayl. Landl. & Ten. (8th Ed.) § 44; 1 Wood, Landl. & Ten. (2d Ed.) ai. But see Parker v. Constable, 3 Wils. 25; Jackson v. Bryan, 1 Johns. (N. Y.) S22. Death of either party terminates the tenancy. James v. Dean, 11 Yes. 383; Rising v. Stannard, 17 Mass. 282; Manchester v, Doddridge, 3 Ind, 300; Say V. Stoddard, 27 Ohio St. 478. But the tenant has a reasonable time to remove his property. Ellis v. Paige, 1 Pick. (Mass.) 43. 182 Such as selling the premises, Howard v. Merriam, 5 Cush. (ilass.) 563; 158 ESTATES AS TO QUANTITY — LESS THAN FREEHOLD. (Ch. 7 the tenant of his interest destroys the tenancy, at the landlord's option.^" TENANCIES FROM YEAB TO YEAR. 90. A tenancy from year to year is a letting of land for an indefinite number of fixed periods. SAME— CREATION. 91. A tenancy from year to year arises whenever there is a reservation of rent in a letting -which -would other-wise be a tenancy at -will, except: EXCEPTION— In a few states, by statute, a general let- ting creates a tenancy from year to year, unless a contrary intention is expressed. Estates from year to year "* include those from quarter to quar- ter,^" month to month/" and so on; the length of the periods be- Jackson v. Aldrich, 13 Johns. (N. Y.) 106; Curtis v. Galvln, 1 Allen (Mass.) 215; or leasing them, Clark v. Wheelock, 99 Mass. 14; Hildreth v. Conan, 10 Mete. (Mass.) 298; Kelly v. Waite, 12 Mete. (Mass.) 300; Groustra v. Bourgea, 141 Mass. 7, 4 N. E. 623. So does a demand of possession, Doe v. M'Kaeg, 10 Barn. & C. 721; Den v. Howell, 7 Ired. (N. C.) 496; or acts which would otherwise be trespass. Turner v. Doe, 9 Mees. & W. 643; aa an entry upon the land, Moore v. Boyd, 24 Me. 242. 183 Cooper V. Adams, 6 Cush. (Mass.) 87; Packard v. Railway Co., 48 111. App. 244; Den v. Howell, 7 Ired. (N. C.) 496. And see Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442. A denial of the landlord's tiUe will, at his option, terminate the tenancy. Willison v. Watkins, 3 Pet. 43; Currier v. Earl, 13 Me. 216; Farrow's Heirs v. Edmundson, 4 B, Mon. (Ky.) 605; Harrison v. Middleton, 11 Grat. (Va.) 527; Fusselman v. Worthington, 14 111. 135. 184 "From term to term" would be a more accurate designation of these tenancies, but the practice is otherwise. In many states there are statutes which raise presumptions as to the kind of a tenancy which arises In the absence of express contract, from a general occupancy. 1 Stim. Am. St. Law, 8 2002. 186 City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440. 186 Anderson v. Prindle, 23 Wend. (N. Y.) 616; Sebastian v. Hill, 51 III. App. 272; Lehman v. Nolting, 56 Mo. App. 549; Rogers v. Brown, 57 Minn. 223, 58 N. W. 981; Backus v. Sternberg, 59 Minn. 403, 61 N. W. 335. See, also, Cox V. Bent, 5 Bing. 185; Tress v. Savage, 4 El. & Bl. 36. §91) TENANCIES FROM YEAR TO YEAR CREATION. 159 ing measured by the time for which rent is reserved.^*'' They are, in effect, tenancies which continue until one of the parlies talvcs the steps requisite to put an end to the relation.^** By the early common law, all tenancies for an indefinite period were at will, but, to prevent the harsh effects often caused by their being ter- minable without notice, the rulings of the courts and statutory enactments have changed most of them into tenancies from year to year.^*' The principal distinction is that a reservation of rent makes a general letting a tenancy from year to year,^^° which, without a rent reserved, is at will ; ^'^ that is, a tenancy from year to year arises from a general letting with a reservation of rent,^®^ or when possession is taken under a void lease.^®^ If no rent is 187 In some states, tenancy from year to year does not exist. 1 Stim. Am. St. Law, § 2005. 188 People V. Darling, 47 N. Y. 666; Lesley v. Randolph, 4 Rawle (Pa.) 123. A tenancy may be created to continue from year to year for two years. It may be determined at the end of a year by notice, and terminates at the end of two years without notice. Doe v. Smaridge, 7 Q. B. 957. 189 1 Wood, Landl. & Ten. (2d Ed.) 85; 1 Tayl. Landl. & Ten. (8th Ed.) 62. 190 See ante, p. 155. But cf. Richardson v. Langridge, 4 Taunt. 128. 191 Herrell v. Sizeland, 81 111. 457; Cheever v. Pearson, 16 Pick. (Mass.) 266; Burns v. Bryant, 31 N. Y. 453; Sarsfield v. Nealey, 50 Barb. (N. Y.) 245; Cross V. Upson, 17 Wis. 638; Amick v. Brubaker, 101 Mo. 473, 14 S. W. 627; Wil- liams V. Deriar, 31 Mo. 13; Le Tourneau v. Smith, 53 Mich. 473, 19 N. W. 151; Blanehard v. Bowers, 67 Vt. 403, 31 Atl. 848; Den v. Humphries, 3 Ired. (N, C.) 362. And see Murray v. Cherrington, 99 Mass. 229; Sanford v. Johnson, 24 Minn. 172; Goodenow v. Allen, 68 Me. 308. 192 Second Nat. Bank v. O. E. MerriU Co., 69 Wis. 501, 34 N. W. 514; Hunt V. Morton, 18 111. 75; Ganson v. Baldwin, 93 Mich. 217, 53 N. W. 171; Lesley V. Randolph, 4 Rawle (Pa.) 123. But see Union Depot Co. v. Chicago, K. & N. Ry. Co., 113 Mo. 213, 20 S. W. 792; Salomon v. O'Donnell (Colo. App.) 36 Pac. 893. 193 Coudert v. Cohn, 118 N. Y. 309, 23 N. E. 298; Brant v. Vincent, 100 Mich. 420, 59 N. W. 169; Hosli v. Yokel, 58 Mo. App. 109; Koplitz v. Gustavus, 48 Wis. 48, 3 N. W. 754; Bateman v. Maddox, 80 Tex. 546, 26 S. W. 51; Rosen- blat V. Perkins, 18 Or. 156, 22 Pac. 598. So, too, a tenancy from year to year may arise by holding over after the expiration of an estate for years. If the acts of the parties show an intention to continue the relation of landlord and tenant, the provisions of the old lease will govern, as far as they are ap- plicable. Ashhurst v. Phonograph Co., 166 Pa. St. 357, 31 Atl. 116; Patterson V. Park, 166 Pa. St. 25, 30 Atl. 1041; Kleespies v. McKenzie, 12 Ind. App. 404, 40 N. E. 648; Johnson v. Doll, 11 Misc. Rep. 345, 32 N. Y. Supp. 132; Conway 160 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 reserved orijxinally, the actual payment of rent will make the hold- ing one from year to year."* SAME— INCIDENTS. 92. The principal incidents of estates from year to year are the following: (a) The tenant may take estovers. (b) He is entitled to emblements when the landlord ter- minates the tenancy. (c) He must repair. (d) The interests of the parties are assignable. The incidents of estates from year to year are for the most part the same as of estates for years.^"' The tenant is entitled to estovers, and to emblements, when the tenancy is terminated by the landlord,^®^ but not when the tenant terminates it. The tenant's duty to repair extends to keeping the premises wind and water tight.^^^ Either party may assign his interest,"* and on the death of the tenant his interest goes to his personal representative.^®* After the termination of the tenancy has been fixed by notice, it be- comes, in effect, equal to a term of years which has nearly ex- pired.200 v. starkweather, 1 Denio (N. Y.) 113; Hyatt v. Griffiths, 17 Q. B. 505; Amsden v. Atwood. G7 Vt. 289, 31 AtL 448; Voss v. King, 38 W. Va. GOT, 18 S. E. 762. But see Cauipau v. Michell (Mich.) 61 N. W. 81K); Chicaf,'o & S. E. Ry. Co. v. Perliins, 12 Ind. App. 131, 38 N. E. 487; Montgomery v. WilUs (Neb.) 63 N. W. 794; Goldsbrough v. Cable, 49 111. App. 554. 19* Jackson v. Bradt, 2 Gaines (N. Y.) 169; Lesley v. Randolph, 4 Rawle (Pa.) 123; Rich V. Bolton, 46 Vt. 84; Chamberlin v. Donahue, 45 Vt 50; Roe v. Lees, 2 W. Bl. 1171; Richardson v. Langrldge, 4 Taunt. 128. But see Brant V. Vincent, 100 Mich. 426, 59 N. W. 169. 19 5 Washb. Real Prop. (5th Ed.) § 637. 198 2 Tayl. Landl. & Ten. (8th Ed.) § 134; Kingsbury v. Collins, 4 Bing. 202. 197 2 Wood. Landl. & Ten. (2d Ed.) 992; 1 Tayl. Landl. & Ten. (Sth Ed.) 401. As to waste by a tenant from year to year, see 2 Wood, Landl. & Ten. (2d Ed.) 992; Toniano v. Young, 6 Car. & P. 8. 198 Bottiug V. Martin, 1 Camp. 317; Cody v. Quarterman, 12 Ga. 386. 199 Doe V. Porter, 3 Term R. 13; Cody v. Quaiterman, 12 Ga. 3S6; Pugsley V. Aikin, 11 N. Y. 494. aooi Washb. Real Prop. (5th Ed.) 637. S 93) TENANCIES FROM YEAR TO YEAR TERMINATION. 161 SAME— TERMINATION. 93. A tenancy from year to year may be terminated by either party by a notice given six months before the end of any year , and by a notice equal to the length of the periods when the tenancy is for pe- riods of six months or less. But these rules do not apply when a different notice has been provided for: (a) By agreement of the parties. (b) By statute, as is the case in some states. By the common law, to terminate a tenancy from year to year there must be a six-months notice given by the party wishing to terminate the tenancy. This notice must be so given that the six months will expire at the end of a year.^"^ Most eases hold that notice equal to the length of the periods is requisite in case of ten- ancies measured by shorter periods.='°=' The time of notice is in many states regulated by statute,^"' and any time may be fixed by the agreement of the parties.^"* The time when the tenancy is to expire must be clearly indicated, and this must be at the end of one of the periods."' Unless otherwise provided by statute, or the 301 Doe V. Watts, 7 Term R. 83; Jackson v. Bryan, 1 Johns. (N. Y.) 322; Den V. Drake, 14 N. J. Law, 523; Morohead v. Watkyns. :. B. Mon. (Kyj 228; Critchfleld v. Remaley, 21 Neb. 178. 31 N. W. 687; Right v. Darby, 1 Term R. 159; Bessell v. Landsberg, 7 Q. B. 638. But see Logun v. lierrou, S Serg. & R. (Pa.) 459. 202 Steffens v. Earl, 40 N. J. Law, 128; Sanfoid v. Harvey, 11 Cuish. (Mass., 93; Prescott v. Elm, 7 Cush. (Mass.) 346. And see Gruenewald v. Schaales, 17 Mo. App. 324; Doe v. Hazell, 1 Esp. 94. 203 See 1 Stim. Am. St, Law, § 2052; 2 Shars. & B. Lead. Cas. Real Prop. 2oa 204 Woolsey v. Donnelly, 52 Hun, 614, 6 N. Y. Supp. 23a. 205 Brown v. Kayser, 60 Wis. 1, 18 N. W. 523; Himter ?. Fmst. 47 Minn. 1, 49 N. W. 327; Finkelsteln v. Herson, 55 N, J. Law, 217, 26 Atl. 688; Stef- fens V. Earl, 40 N. J, Law, 128; Logan v. Herron. 8 Serg. & R. (Pa.) 4ri9; Prescott V. Elm, 7 Cush. (Mass.) 346; Baker v. Adams, 5 Cush. (Mass.) 99; Sanford v. Hai-vey, 11 Cush. (Mass.) 93. But see Currier t. Barker, 2 Gray (Mass.) 224. REAL PROP.— 11 162 ESTATES AS TO QUANTITY LESS THAN FREEHOLD. (Cll. 7 agreement of the parties, the notice required to terminate an es- tate from year to year need not be in writing,"' but it must be certain and definite."^ The notice should be personally served."' Although the tenancy comes to an end at the expiration of the notice,"' yet the parties may waive the effect, and continue the relation. This may be done by express agreement,"" or by acts showing such intention;"* for instance, acceptance by the land- lord of rent accruing after the expiration of the notice.^** LETTING OF LODGINGS. 94. A letting of lodgings, where the owner of the house retains possession and control, creates only a con- tract relation. The hiring of furnished apartments creates a tenancy from year to year; that is, the holding is from week to week, or from month to month, according to the periods at which rent is payable, when the terms of the demise are indefinite."^ The relation of so 8 Timmlns v. RowUnson, 3 Burrows, 1603, 1 W. BL 533; Doe v. Cric^ 5 Esp. 1U6; Eberlein v. Abel, 10 111. App. 626. 207 Doe V. Moi-phett, 7 Q. B. Div. 577; Uoe v. Smith, 5 Adol. & E, 350; Ayres V. Draper, 11 Mo. 548; Steward v. Harding, 2 Gray (Mass.) 335; Granger v. Brown, 11 Gush. (Mass.) VJl; Hanchett v. Whitney, 1 VL 311; Huyser v. Chase, 13 Mich. 102. 208 Doe V. Williams, 6 Bam. & C. 41; Jackson v. Baker, 10 Johns. (N. Y.) 270. But see Walker v. Sharpe, 103 Mass. 154; BeU v. Binihn, 30 111. App. 800; Doe v. Dunbar, Moody & M. 10. Notice to a subtenant Is not suffi- cient. Pleasant v. Benson, 14 East, 234. It Is sufficient, however, if actual knowledge of the notice is shown, for the required length of time. Alford v. Vickery, Car. & M. 280. 209 Hoske V. Gentzlinger, 87 Hun, 3, 33 N. Y. Supp. 747. 210 Supplee V. Timothy, 124 Pa. SL 375, 16 Atl. 864. 211 See Tuttle v. Bean, 13 Mete. (Mass.) 275; Doe v. Palmer, 16 East, 53. 212 Goodright v. Cordwent, Term II. 219; Collins v. Canty, 6 Gush. (Mass.) 415; Prindle v. Anderson, 19 Wend. (N. Y.) 391. Mere demand of rent so ac- cruing will not necessarily be a waiver, Blyth v. Dennett, 13 G. B. 178; nor acceptance of rent due before the expiration of the notice, Kimball v. Row- land, 6 Gray (Mass.) 224; Non-is v. Morrill, 43 N. H. 213. And see Graham v. Dempsey, 1G9 Pa. St 460, 32 Atl. 408; Conner v. Jones, 28 Cal. 59. 218 1 Wood. Landl. & Ten. (2d Ed.) 132. § 96) TENANCIES AT SUFFERANCE — CREATION. 163 landlord and tenant does not arise, however, when there is merely a letting of lodgings."* The test of such a holding is the re- tention by the owner of full possession and control of the house. In such cases there is only a contract relation.""^ The letting of "French flats" does not come within this rule, however; for they are separate dwellings, and the hirer is a lessee, even though there Is but a single outer door to the building."' Reasonable notice is all that is necessary to terminate the holding of a lodger."^ TENANCIES AT SUFFERANCE. 95. A tenancy at sufferance is a holding of lands after the expiration of a previous right to possession. SAME— CREATION. 96. For the creation of a tenancy at sufferance, the tenant must have come in by agreement, and not as a trespasser, and he must hold without agreement. Where there is a holding over by one whose right to occupy has expired, a tenancy at sufferance arises; ^^* for instance, when a tenant for years continues in possession after the end of his term.^^* Such person must have come in originally by agreement,"** and 21* As to who are lodgers, see Morton v. Palmer, 51 Law J. Q. B. 7. 216 Wilson V. MarUn, 1 Denio (N. Y.) 602; White v. Maynard, 111 Mass. 250; Cochrane v. Tuttle, 75 III. 361. 216 Musgrave v. Sherwood, 53 How. Prac. (N. Y.) 311; Young v. City of Boston, 104 Mass. 93; Porter v. Merrill, 124 Mass. 534; Swain v. Mizner, 8 Gray (Mass.) 182. 217 1 Tayl. Landl. & Ten. (8th Ed.) 78; 1 W^ood, Landl. & Ten. (2d Ed.) 133. But see Huffell v. Armitstead, 7 Car. & P. 56. 218 Doe V. Hull, 2 Dosol. & R. 38; Russell v. Fabyan, 34 N. H. 218; Eichen- green v. Appel, 44 111. App. 19; Uridias v. Morrell, 25 Cal. 31. 219 Jackson v. Parkhurst, 5 Johns. (N. Y.) 128; Moore v. Smith (N. J. Sup.) 29 Atl. 159. So a subtenant, after the termination of the original lease, Sim- kin V. Ashurst, 1 Cromp., M. & R, 261; or a tenant at will, whose estate has been terminated, Co. Litt. 57b; Benedict v. Morse, 10 Mete. (Mass.) 223. And see Kinsley v. Ames, 2 Mete. (Mass.) 29. 220 Cook V. Norton, 48 111. 20. So the entry must be lawful. Reckhow v. Schanck, 43 N. Y. 448; Cunningham v. Holton, 55 Me. 33. 164 ESTATES AS TO QUANTITY LKSS THAN FREEHOLD. (Ch. 7 not by operation of law, as a guardian, who becomes a trespasser by continuing to hold his ward's land after the ward is of age."^ Tliere is no tenancy at sufferance where the holding over is by agreement, express or implied."^' And a tenant at sufferance may at any time become a tenant at will, or from year to year, by agreement with the landlord."^ Payment of rent makes the hold- ing a tenancy from year to year. 224 SAME— INCIDENTS. 97. The principal incidents of a tenancy at sufferance are the following: (a) The tenant is estopped to deny the landlord's title. (b) He is not liable for rent. (c) He is not entitled to emblements. The relation of landlord and tenant obtains in a tenancy at sufferance only to the extent that the tenant is not permitted to deny the landlord's title."' A tenant at sufferance is not liable for rent,^2* the landlord's remedy being an action for use and oc- cupation."^ The tenant cannot claim emblements, though the landlord terminates the tenancy before the tenant has harvested his £rop. 321 Johnson, J., In Livingston v. Tanner, 14 N. Y. 69. 322 Johnson v. Carter, IG Mass. 443. But see Landis' Appeal. 13 Wkly. Notes Cas. 226. 223 Hoffman v. Clark, G3 Mich. 175, 29 N. W. 695; Emmons v. Scudder, 115 Mass. 367; Den v. Adams, 12 N. J. Law, 99. 2 24 Schuyler v. Smith, 51 N. Y. 309. 22 6 Gritfin v. Sheffield, 38 Miss. 390; Jackson v. McLeod, 12 Johns. (N. Y.) 182. 2-.:6 2 Bl. Coram. 150; Flood v. Flood, 1 Allen (Mass.) 217; Delano v. Montague, 4 Cash. (Alass.) 42. In several states he is made liable for rent by statute. 1 Stim. Am. St. Law, § 2022. And see Cofran v. Shepard, 148 Maas. 682, 20 N. E. 181. In many states a tenant who holds over when liis interest is ended, and after demand by the landlord, becomes liable for statutory pen- alties. 1 Stim. Am. St. Law, § 2060; 2 Shars. & B. Lead. Cas. Real Prop. 123. 227 ibbs V. Itichardson, 9 Add. & E. 849; National Oii-Rehuiug Co. v. Bush, 88 Pa. St 3:^5; Hogsett v. Ellis, 17 Mich. 351. But see Merrill v. Bullock, 105 Mass. 486. § 99) LICENSES. 165 SAME— TERMINATION. 98. A tenancy at sufferance may be terminated at any time, by either party, without notice, except: EXCEPTION" — In some states a notice is required by statute. A tenant at sufferance is entitled to no notice to quit,'^' except where statutes give the right.^^* The landlord can enter at any time, and thereafter treat him as a trespasser, though he cannot so treat him before entry or demand.*'** There is a conflict in the authorities as to whether the landlord may expel the tenant by force. This is because such an expulsion may be criminal.^" The better opinion seems to be that the tenant may be expelled, notwithstanding the fact that the landlord may become criminally liable therefor."^* But there will be no civil action for personal injuries suJBfered unless more force than necessary was used.^^^ LICENSES. 99. A license is an authority to do specified acts on the land of the licensor. A license is not an estate, and is not assignable. Licenses are created either by express agreement, or by implica- tion. An example of the latter is the implied license granted by 22 8 Hooton V. Holt, 139 Mass. 54, 29 N. E. 221; Jackson v. Parkhurst, 5 Johns. (N. Y.) 128; Jackson v. McLeod, 12 Johns. (N. Y.) 182; Livingston v. Tanner, 14 N. Y. 64. And see Kinsley v. Ames, 2 Mete. (Mass.) 29; Benedict V. Morse, 10 Mete. (Mass.) 223. 229 1 stim. Am. St Law, § 2050; 2 Shars. & B. Lead. Cas. Real Prop. 146. And see Minard v. Burtis, 83 Wis. 267, 53 N. W. 509. 230 1 \Yood, Landl. & Ten. (2d Ed.) 26; 1 Tayl. Landl. & Ten. (8th Ed.) 74, 231 See Clark, Cr. Law, 345. 2 32 Wilde V. Cantillon, 1 Johns. Cas. (N. Y.) 123; Overdeer v. Lewis, 1 Watts & S. (Pa.) 90; Allen v. Keily, 17 R. I. 731, 24 Atl. 776; Stearns v. Sampson, 59 Me. 568; Todd v. Jackson, 26 N. J. Law, 525. Contra, Reeder v. Purdy, 41 111. 279; Wilder v. House, 48 111. 279; Dustin v. Cowdry, 23 Vt. 631. 288 Sampson v. Henry, 13 Pick. (Mass.) 36; Adams v. Adams, 7 Phila, (Pa.) 160. 1G6 ESTATES AS TO QUANTITY — LESS THAN FREEHOLD. (Ch. 7 all business men to the public to enter tbeir stores or offices during business hours. ^^* So a license may be implied from other acts or representations of the owner of land.^^'' A license gives no in- terest in the land, but is merely a personal right.^'^ It differs from a lease of land chiefly in that the owner retains the possession of the land."^ The effect of a license is to permit the licensee to do acts upon the land which would otherwise be trespass.''^* The grant of a license carries with it the right to use the necessary and proper means to accomplish the object.-"^ The licensee is lia- ble for all damages resulting from negligent or improper execu- tion of the license,"" but not for damages which are the natural result of the acts licensed.^* ^ A license is purely personal, and can- not be assigned by the licensee.^*^ So a sale of the land by the 23 4 Gibson, C. J., in Gowen v. Exchange Co.. 5 Watts & S. (Pa.) 143. And see Kay v. Railroad Co., 65 Pa. St. 273; Cutler v. Smith, 57 111. 252; Sterling V. Warden, 51 N. H. 217; Heaney v. Heeney, 2 Denio (N. Y.) 625. So a sale of chattels gives an implied license to enter to remove them. Wood v. Mau- ley, 11 Adol. & E. 34. 23 5 So there is an ina plied license to go to a private residence to make social calls. Martin v. Houghton, 145 Barb. (N. Y.) 258; Adams v. Freeman, 12 Johns. (N. Y.) 40S. And see Gibson v. Leonard, 143 111. 1S2, 32 N. E. 182. 236 Mumford v. Whitney, 15 Wend. (N. Y.) 381; Dolittle v. Eddy, 7 Bajb. (N. Y.) 74; Ex parte Coburn, 1 Cow. (N. Y.) 568; Blaisdell v. Railroad Co., 51 N. H. 483. 2 37 Funk V. Haldetuan, .53 Pa. St. 229. And see HoUaday v. Power Co., 55 111. App. 4G3; Kabley v. Liglit Co., 102 Mass. 392; Smith v. Simons, 1 Root (Conn.) 318; Haywood v. Fulmer (Ind. Sup.) 32 N. E. 574. A license differs from an easement in not being created by deed. Morse v. Copeland, 2 Gray (Mass.) 302; Mumford v. Whitney, 15 Wend. (N. Y.) 381; Wiseman v. Luck- singer, 84 N. Y. 31; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Foot v. New Haven & Northampton Co., 23 Conn. 214. Cf. W. U. Tel. Co. v. BuUard, 67 Vt. 272, 31 Atl. 280. 238 Blaisdell v. Railroad Co., 51 N. H. 483; Sterling v. Warden, Id. 217; Miller v. Railway Co., 6 Hill (N. Y.) 61. 239 Com. V. Iligney, 4 Allen (Mass.) 310; Driscoll v. Marshall, 15 Gray (Mass.) 62. As to employ men to help remove a ponderous object from the licensor's land. Sterling v. Warden, 51 N. H. 217. 240 Selden v. Canal Co., 29 N. Y. 634; Eaton v. Winnie, 20 Mich. 156; Mc- Knight v. RatcliEf, 44 Pa. St. 156; Dean v. McLean, 48 Vt. 412. 241 Selden v. Canal Co., 29 N. Y. 634. «*2 Mumford y. Whitney, 15 Wend. (N. Y.) 381; Mendenhall v. Klinck, 51 § 100) REVOCATION OF LICENSES. 167 licensor puts an end to the authority."' A license is also ter- minated by the death of either party,"* and by the expiration of the time for which it is given.*** SAME— BSVOCATION OP LICENSES. 100. liicenses are revocable in all cases, except: EXCEPTIONS— (a) Wlien coupled with an interest. (b) When affecting only an easement of the licensor. (c) In some states, when the licensee, relying on the license, has erected improvements on the licensor's land. The general rule is that licenses ai'e revocable."* But a license coupled with an interest is not. For example, if personal prop- erty is sold, and a license given to go upon the land of the vendor to remove the goods, it cannot be revoked.^*^ A license to do acts which obstruct or destroy an easement of the licensor cannot be revoked after it is executed."* There is great conflict in the cases as to the power to revoke a license after the licensee has ex- pended moneyor erected improvements onthe land of the licensor.*** N. Y. 246; Jackson v. Babcock, 4 Johns. (N. Y.) 418; De Haro v. U. S., 5 Wall. 599. 243 Blaisdell v. Railroad Co., 51 N. H. 483. 244 Prince V. Case, 10 Conn. 375; Blaisdell v. Railroad Co., 51 N. H. 483. Or by the Insanity of the licensor. Berry v. Potter (N. J. Ch.) 29 Atl. 323. 245 Detroit & B. Plank-Road Co. v. Detroit S. Ry. Co., 103 Mich. 585, 01 N. W. 880. A conveyance of the land by the licensor will be a revocation. Jackson v. Babcock, 4 Johns. (N. Y.) 418. 2i«5 Baldwin v. Taylor, IGti Pa. St. 507, 31 Atl. 250; Bass v. Power Co., Ill N. 0. 439, 16 S. B. 402; Minneapolis W. Ry. v. Minneapolis & St L. Ry. Co., 58 Minn. 128, 59 N. W. 983; Kremer v. Railway Co., 51 Minn. 15, 52 N. W. »77. 24T Wood V. Manley, 11 Adol. & E. 34; Carter v. Wingard, 47 111. App. 296. But see Fish v. Capwell (R. L) 29 Atl. 840. It may be lost by abandonment Patterson v. Graham, 164 Pa. St. 234, 30 Atl. 247. 248 Dyer v. Sanford, 9 Mete. (Mass.) 395; Morse v. Copeland, 2 Gray (Mass.) 302; Addison v. Hack, 2 Gill (Md.) 221. 249 As holding such a license irrevocable, see Flickinger v. Shaw, 87 Cal. 126, 25 Pac. 268; Grimshaw v. Belcher, 88 Cal. 217, 26 Pac. 84; Nowlin v. Whipple, 120 Ind. 596, 22 N. E. 669; Saucer v. Keller, 129 Ind. 475, 28 N. B. 16.S K.STATES AS TO QUANTITY LESS THAN FREEHOLD. (Ch. 7 The difiiculty is that if the license is held irrevocable the effect is to transfer an interest in realty by parol. ^"^^ Some courts hold the licensor estopped to revoke."^ Others require him to place the licensee in statu quo, by compensating him for his expenditures.^"' Where the license is in the nature of a contract for a definite time, the licensee is protected by awarding him specific performance.'"* In some states all licenses are held to be revocable,'"* and the licensee without remedy.'"" 1117; Messick v. Railway Co., 128 Ind. 81, 27 N. E. 419; McBroom V. 'rhonii)son, 2,") Or. 553 Mass. 501, 40 N. E. 854. « UndiThill V. Itailway Co., 20 Barb. (N. Y.) 455; Burnett v. Strong, 26 Miss, 116; .Juni's V. Railway Co., 14 W. Va. 514. » Maitin v. Ballon, 13 Barb. (N. Y.) 119; Bell Co. v. Alexander, 22 Tex. 350. And see Webster v. Cooper, 14 How. 488; Taylor v. Mason, 9 Wheat 325; Sackett v. Mallory, 1 Mete. (Mass.) 355; Tallman v. Snow, 35 Me. 342. 10 Fiulay v. Mitchell, 3 Pet. 346. 11 Hamilton v. Elliott, 5 Serg. & R. 375; Allen v. Howe, 105 Mass. 241. As in a case where he is to pay off a mortgage, no time being expressed. Rowell V. Jewett, 69 Me. 293. 12 Marshall, C. J., in Finlay v. King, 3 Pet. 346. 13 A condition may become impossible by act of God, Thomas v. Howell, 1 Salk. 170; or by act of law, Board of Com'rs of Mahoning Co. v. Young, 8 G. C. A. 27, 59 Fed. 96; Scovill v. McMahon, 62 Conn. 378, 26 AtL 479. 1* See post, 394. Jenher v. Gumer, 16 Ch. Div. 188; Hodgson v, Halford, § 105) VOID CONDITIONS. 173 General conditions in restraint of marriage are void. Partial re- strictions on marriage, such as not to marry a named person, or any one of a named family, are generally sustained, even without a lim- itation over, but are narrowly interpreted; " and so as to conditions against marrying without consent of parents, or of those who stand in loco parentis.^ ^ Where a gift or devise is made to an unmarried woman, with a condition that the estate shall cease upon marriage, the condition, being in restraint of marriage, is said to be against the policy of the law; and it has generally been held that, unless the instrument im- posing the condition says also to whom the estate shall go in case of disobedience, the condition is deemed to have been inserted in terrorem only, and may be disregarded. Here is a distinction against the heirs of the donor, and in favor of the strangers whom he may name by way of conditional limitation, for which no good reason can be given, but which seems to be well established, for the cases are very rare in which the condition without limitation over has been deemed valid. ^^ A vo-id condition, if precedent, prevents the estate depending on it from vesting at all;^^ but, if subsequent, the condition is of no €ffect, and the estate becomes absolute.^* 11 Oh. Div. 959; Graydon's Ex'rs v. Graydon, 23 N. J. Eq. 229; Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241; Hogan v. Curtin, 88 N. Y. 162; Keily v. Monck, 3 Ridg. App. 205; Maddox v. Maddox's Adm'r, 11 Grat (Va,) 804. IB Phillips V. Ferguson, 85 Ya. 509, 8 S. E. 241. 18 Dentield, Petitioner, 156 Mass. 265, 30 N. E. 1018. 17 Otis V. Prince, 10 Gray (Mass.) 581. For other conditions which have t>eeD held illegal, see Newkerk v. Newkerk, 2 Gaines (N. Y.) 345; Brown v. Peck, 1 Eden. 140; Wren v. Bradley, 2 De Gex & S. 49. 18 Roundel v. Currer, 2 Brown, Ch. 67; Priestley v. Holgate, 3 Kay & J. 286. But see In re Moore, 39 Ch. Div. 116. i» Thomas v. Howell, 1 Salk. 170; Lowther v. Cavendish, 1 Eden, 99; Pey- ton v. Bury, 2 P. Wms. 626; CoUett v. Collett, 35 Beav. 312; Booth v. Meyer, 38 Law T. (N. S.) 125; O'Brien v. Barkley, 78 Hun, 609, 28 N. Y. Supp. 1040; Hoss V. Hoss, 140 Ind. 551, 39 N. E. 255. 174 ESTATES AS TO QUALITY — CONDITIONS LIMITATIONS. (Ch. 8 SAME— TERMINATION OF ESTATES ON CONDITION. 106. An estate on conditions subsequent is not determined by a breach of condition until there has been an entry, except: EXCEPTIONS — (a) Commencing an action of ejectment is equivalent to an entry. (b) If the grantor is in possession, the forfeiture is com- plete -w^hen a breach occurs. 106a. An estate on condition may come to a natural ter- mination -without a breach of the condition. The breach of a condition gives the grantor an option to terminate the estate.^" This he can do only by an entry,^^ but no previous demand of performance is necessary." The technical action of ejectment has the same effect, because an entry is held to be con- fessed." WTien, however, the grantor is in possession at the time a breach occurs, the forfeiture is complete without any act on his 20 It is not necessary that any damage to the grantor has been caused by the breach. Sioux City & St. P. R. Ck). v. Singer, 49 Minn. 301, 51 N. W. 905. The grantee cannot insist that he has forfeited his estate by a breach. Davenport v. Reg., 3 App. Cas. 115; Rede v. Farr, 6 Maule & S. 121. As to what constitutes a breach, see Razor v. Razor, 14ii 111, 375, 31 N. E. 678; Rose V. Hawley, 141 N, Y. 3(;G, 36 N. E. 335; City of Quincy v. Attorney General, 160 Mass. 431, 35 N. E. 1066; Hurto v. Grant, 90 Iowa, 414, 57 N. W. 899; Crawford v. Weam, 115 N. C. 540, 20 S, E. 724; Madigan v. Burns (N. H.) 29 Atl. 454. 21 Warner v. Bennett, 31 Conn. 4G8; Bowen v. Bowen, 18 Conn. 535; Hub- bard V. Hubbard, 97* Mass. 188; Guild v. Richards, 16 Gray (Mass.) 300; Adams v. Lindell, 5 Mo. App. 197; Kenner v. Contract Co., 9 Bush (Ky.) 202; Tallman v. Snow, 35 Me. 342;*Sperry v. Sperry, 8 N. H. 477; Memphis & C. R. Co. V. Neighbors, 51 Miss. 412; Phelps v. Chesson, 12 Ired. (N. 0.) 194. But see Schlesinger v. Railroad Co., 152 U. S. 444, 14 Sup. Ct. 647. A right of entry need not be expressly reserved. Gray v. Blanchard, 8 Pick. (Mass.) 284; Thomas v. Record, 47 Me. 500. 2 2 Hamilton v. Elliott, 5 Serg. & R, (Pa.) 375. 23 Ruch V. Rock Island, 97 U. S. 693; Jackson v. Crysler, 1 Johns. Cas. (N. Y.) 125; Cornelius v. Den, 26 N. J. Law, 376. After seeking to enforce a forfeiture by ejectment, the lessor cannot sue for rent subsequently ac- cruing. Jones V. Carter, 15 Mees. & W. 718. § 106) TERMINATION OF ESTATES ON CONDITION. 175 part," unless he elects otherwise." The performance of a condi- tion maj be waived, and a breach would then not work a forfei- ture.-* Or after a breach has occurred the forfeiture may be waived by express agreement, or by acts of the grantor having the same effect; " for instance, accepting performance of the condition at a subsequent time.^^ Such waiver cuts off the right to claim a for- feiture," but not the right to an action for a breach of covenant in a proper case."* Mere delay to enforce the forfeiture will not con- stitute a waiver,^ '^ and acquiescence in a breach will not bar the right to a forfeiture for a subsequent breach. ''^ Equity sometimes re- lieves from forfeitures for breach of conditions, where the breach is due to accident, and the grantor can be compensated by damages as by the payment of a sum of money with interest.^' But other- 24 Slieaffer v, Sheaffer, S7 Pa, St. 525; President, etc., of Lincoln & K. Banli V. Drummond, 5 Mass. 322; Collins v. Eiley, 44 N. H. 9; Wiilard v. Olcott, 2 N. H. 120; Guffy v. HuklU, 34 W. Va. 49, 11 S. E. 754; Andrews v. Senter, 32 Me. 394. But see Stone v. Ellis, 9 Cusli. (Mass.) 95. » 6 Andrews v. Senter, 32 Me. 394; Wiilard v. Olcott, 2 N. H. 120. «« Jones V. Doe, 2 111. 27G; Lamb v. Miller, 18 Pa. St. 448; Petro v. Cassiday, 13 lud. 289; Boone v. Tipton, 15 Ind. 270; Jones v. Railway Oo., 14 W. Va. 514; Jones v. Walker, 13 B. Mon. (Ky.) 163. So a license excusing a breach as to part of the premises discharges the whole condition. Leede's & Crompton's Case, Godb. 93. But see 7 Am. Law Rev. 616, criticising Dum- por's Case, 4 Coke, 119b, and Bnimmell v. Macpherson, 14 Ves. 173. 27 Barrie v. Smith, 47 Mich. 130, 10 N. W. 168; Sharon Iron Co. v. aty of Erie, 41 Pa. St. 341; Hubbard v. Hubbard, 97 Mass. 188; Pennant's Case, 3 Coke, 64a. 2 8 An acceptance of rent accruing after the breach is a waiver, Jackson v. Allen, 3 Cow. (N. Y.) 220; Goodright v. Davids, 2 Cowp. 803; or a demand for rent so accruing. Camp v. Scott, 47 Conn. 366; or bringing an action for it, Dendy v. NichoU, 4 C. B. (N. S.) 376. 28 Lehigh Coal & Nav. Co. v. Early, 162 Pa. St 338, 29 Atl. 736. 80 Dickey v. M'Cullough, 2 Watts & S. 88. 81 But may be strong evidence of it. Ludlow v. Railway Co., 12 Barb. (N. Y.) 440; Hooper v. Cummings, 45 Me. 359. 8 2 Doe V. Jones, 5 Exch. 498; Doe v. Bliss, 4 Taunt. 735; Ambler v. Wood- bridge, 9 Barn. & C. 376; Flower v. Peck, 1 Barn. & Adol. 428; Bleeker v. Smith, 13 Wend. (N. Y.) 530; Price v. Norwood, 4 Hurl. &, N. 512; Crocker V. Society, 106 Mass. 489; Gillis v. Bailey, 21 N. H. 149. 8 8 Rogan V. Walker, 1 Wis. 527; Sanborn v. Woodman, 5 Cush. (Mass.) 36; Hancock v. Carlton, 6 Gray (Mass.) 39; Carpenter v. Westcott, 4 R. I. 225; Henry v. Tupper, 29 Vt. 358. 176 ESTATES AS TO QUALITY CONDITIONS LIMITATION'S, (Ch. 8 wise equity will not give relief. Therefore, for breaches of condi- tions to repair, to insure, etc., equity will leave the parties to their remedies at law.'* An estate on condition may expire under the form of the limita- tion, the same as an absolute estate. Thus, where a life estate is given on condition, the death of the life tenant puts an end to the estate, though the condition has not been broken. SAME— WHO CAN ENFORCE A FORFEITURE. 107. An entry to enforce a forfeiture for a breach, of con- dition can be made only by the grantor, or his heirs, except: EXCEPTION — The assignee of a reversion after a lease- hold estate can enforce covenants -which run -with the land. The right of entry for breach of condition, to defeat an estate, cannot be reser^^ed to a third person, but only to the grantor and his heirs.*' Neither can it be assigned or transferred with a grant of the reversion.*® As to whether a devisee of the grantor may en- force a forfeiture, the cases are conflicting,*^ But these rules do 84 Dunklee v. Adams, 20 Vt 415; Green v. Bridges, 4 Sim. 96; Hill v. Bap- clay, 18 V'es. 5t>. Equity, on the other hand, will not enforce a forfeiture. Fetter, Eq. 112. SB Fonda v. Sase, 46 Barb. (N. Y.) 109; Van Rensselaer v. Ball, 19 N. Y. 100; Marwick v. Andrews, 25 Me. 525. Contra, McKlssick v. Pickle, 16 Pa. St. 140. And see Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 550. Nor can a stranger raise the question of a forfeiture. Board of Education of Normal School Dist. V. Trustees of First Baptist Church of Nonnal, 63 111. 204; Schulenberg v. Harriman, 21 Wall. 44; Rector, etc., of King's Chapel v. Pel- ham, 9 Mass. 501; Smith v. Brannan, 13 Cal. 107; Dewey v. Williams, 40 N. H. 222; Norris v. Milner, 20 Ga. 563. 3 8 Vermont v. Society for Propagation of Gospel, 2 Paine, 545, Fed. Cas. No. 16,920; Rice v. Railroad Co., 12 Allen (Mass.) 141; Nicoll v. Railroad Co., 12 N. Y. 121; Underbill v. Railroad Co., 20 Barb. (N. Y.) 455; Warner v. Ben- nett, 31 Conn. 468. 87 As holding that he cannot, see Den v. Railroad Co., 26 N, J. Law, 13. Contra, Austin v. Cambridgepcrt Parish, 21 Pick. (Mass.) 215. § 108) ESTATES ON LIMITATION. 177 not applj to leasehold estates, for the assignee pening of tbe contingency, because it was not created for any longer time. Conditions cut short an ex- isting estate. Limitations do not, but mark its natural end- A third person may take advantage of tlie happening of tke event on which the estate is limited to end.** SAME— BASE OR DETERMINABLE TEES. 109. A base or determinable fee is a fee simple, which may be terminated by the happening of a contin- gency. A fee which is liable to be terminated by a limitation is called a base or determinable fee. This is the kind of an estate which passed when a tenant in tail attempted to convey a fee simple by a conveyance which barred the issue under the entail, but not the remainder-men. The grantee took a. fee determinable on the extinc- tion of the issue who were entitled under the entail.** A base fee dependent on a collateral condition may also arise by express pro- \ision of the conveyance.*^ The most usual cases at the present time are w^here land is granted for a specified use, to revert to the grantor when that use ceases.*' Mr. Gray, however, takes the po- sition that a valid determinable fee cannot be created since the stat- 43 Scheetz v. Fitzwater, 5 Pa. St 126; Henderson v. Hunter, 59 Pa. St 335; Ashley v. Warner, 11 Gray (Mass.) 43; Miller v. Levi, 44 N. Y. 489; Sleams V. Godfrey, 16 Me. 158. An example of the importance of this distinction arises in connection with conditions in restraint of marriage. Thus an estate to A. until she man-ies is valid as an estate on limitation. But an estate to A. provided she does not marry is void because it is an estate on condition, and the condition is in restraint of marriage. Bennett y. Robinson, 10 Watts (Fa.) 348; Alann v. Jackson, 84 Me. 400, 24 Atl. 886; Jones v. Jones, 1 Q- B. Div. 279. 4 4 For a discussion of these base fees, see Challis, Real Prop. 264. 4 6 Leonard v. Burr, 18 N. Y. 90. 48 As for school purposes, Board of Education of Village of Van Wert v. Inhabitants of Village of Van Wert, 18 Ohio St 221; or for public streets, Gebhardt v. Reeves, 75 111. 301; Helm v. Webster, 85 111. 116. And see Peo- ple V. White, 11 Barb. (N. Y.) 26; Morris Canal & Banking Ck). v. Brown, 27 N. J. Law, 13; Henderson v. Hunter, 59 Pa. St 335; Boiling v. Mayor, etc, 8 Leigh (Va.) 224; Thayer v. McGee, 20 Mich. 19G. § 109) BASE OE DETERMINABLE FEES. 179 irte of quia emptores,*' The point has not, it seems, been raised in any reported case, but the validity of such limitatiMi has bepw assumed without question.^ 4« 4 7 Since the grantor has only a possibiUty o* reverter. Gray, Perp. 19. Contra, Graves, Real Prop. 135. 48 See cases cited in the preceding notes, and Slegrf v. Lauer, 148 Pa. St 236, 23 AtL 996; Sheetz v. Fitz water, 5 Pa. St 126; Pennsylvania R. Co. v Paite, 42 Pa. St 31; Rowland v. Warrwi, 10 Or. 129, 180 I3TATK3 A3 TO QUALITY M0BTQAGK3. (Ch. 9 CHAPTER IX. ESTATES AS TO QUALITY (Continued)— MORTGAGEa. 110. Mortgage Defined. 111. Parties to a Mortgage. 112. Nature of a Mortgage. 113. What may be Mortgaged, 114. Form of a ^lortgage. 115. Eights and Liabilities of Mortgagor and Mortgagee. 116. Nature of Mortgagor's Elstate. 117. Possession of Mortgaged Premises. 118. Insurance on Mortgaged Premises. 119. Accounting by the Mortgagee. 120. Debits. 121. Credits. 122. Annual Rests. 123-124. Subrogation. 125-126. Assignment of the Equity of Redemption. 127-129. Assignment of the Mortgage. 130. Priority of Mortgages and Other Conveyance*. 131. Registration. 132. Discharge of a Mortgage. 133-134. Performance. 135. Merger. 136. Redemption. 137. Form of Discliarge. 138-139. Foreclosure. 140. Kinds of Foreclosure. MORTGAGE DEFINED. 110. A mortgage is a conveyance of land as security, and is usually in the form of an estate on condition subsequent. The discussion of mortgages in this chapter includes only mort- gages of real property. A more specific definition of a mortgage than a conveyance of land as a security would exclude some of the many forms which such a conveyance may assume.^ A mortgage 1 1 Jones, Mortg. (5th Ed.) § 16. And see Draper v. Draper, 71 Hun, 349, 24 N- Y. Supp. 1127; Harriman v. Light Co., 103 Mass. 85, 39 N. B. 1004; Ander- § 110) MOBTGAQE DEFINED. 181 is an estate on condition subsequent; that is, the mortgagee has an estate which is defeated by the performance of the condition by the mortgagor. The condition is usually for the payment of money, but it may be for the support of the mortgagee,* or for his indemnity against liability.' When a mortgage is given to secure a debt, it is usually accompanied by a note or other evidence of indebtedness, though this is not essential to the validity of the mortgage; for there may be a valid mortgage without any personal liability on the part of the mortgagor, for example, when the creditor's only right to payment is out of the mortgaged property,* or when the mortgage is given to secure a debt of another than the mortgagor.* It will not be presumed that the mortgagor is personally liable, from the mere execution of the mortgage.* The time when the debt is due should be fixed with certainty, so that it may be knowD when the mortgagor is in default.' A stipulation providing that, Bon V. Smith, 103 Mich. 446, 61 N. W. 778; Baum v. Gaffy, 45 111. App. 138; Doescher v. Doescher (Minn,) 63 N. W. 736; Leiweke v. Jordan, 59 Mo. App.. 619; MerriU v. Hurley (S. D.) 62 N. W. 958; Strouse v. Ck)heii, 113 N. a 349,, 18 S. E. 323. 2 Soper V. Guernsey, 71 Pa. St 219; Flanders v. Lamphear, 9 N. H. 201; Hoyt V. Bradley, 27 Me. 242; Austin v. Austin, 9 Vt 420; Hiatt v, Paiter, 29 Kan. 765. Unless otherwise provided, the obligation to support is a per- sonal one, and cannot be assigned. Eastman v. Batchelder, 36 N. H. 141; Bethlehem v. Annis, 40 N. H. 34; Bryant v. Erskine, 55 Me. 153. But, con- tra, Joslyn V. Parlin, 54 Vt 670. And see BodweU Granite Co. v. Lane, 83 Me. 168, 21 Atl. 829. 8 Lyle V. Ducomb, 5 Bin. (Pa.) 585; Gardner v. Webber, 17 Pick. (Mass.) 407; Commercial Bank v. Cunningham, 24 Pick. (Mass.) 270; Adams v. Nie- mann, 46 Mich. 135, 8 N. W. 719; Dxmcan v. Miller, 64 Iowa, 223, 20 N. W. 161. * 1 Jones, Mortg. (5th E>L) § 70; Hodgdon v. Shannon, 44 N. H. 572. As to description of the indebtedness, see Usher v. Skate Co., 163 Mass. 1, 39 N. E. 416; Merrill v. Elliott, 55 111, App. 34; Bo wen v. RatclifE, 140 Ind. 393, 39 N, E. 860; Harper v. Edwards, 115 N. C. 246, 20 S. K 392. 6 Chittenden v. Gossage, 18 Iowa, 157; New^ Orleans Canal &. Banking Co, V. Hagan, 1 La. Ann. 62. ♦ 1 Jones, Mortg. (5th Ed.) § 678; Tnsk y. Ridge, 41 N. Y. 201; Smith r. Rice, 12 Daly (N. Y.) 307; Coleman v. Van Rensselaer, 44 How. Prac (N. Y.) 368. « 1 Jones, Mortg. (5th Ed.) § 75. When the mortgage is to secure a note, the mortgagor is entitled to days of grace. Coffin y. Loring, 5 Allen (Mass.) 182 ESTATES A3 TO QUALITY MORTQAQES. CCli- 9 on default of payment of any installment of interest or principal, the whole debt shall become due, is valid,^ PARTIES TO A MORTGAGE. 111. The parties to a mortgage must be com.peteiit to con- vey and hold real property. As to the parties who are competent to execute a mortgage,* it may be said that any one may be a mortgagor who has the capacity to transfer real property," and any one may be a mortgagee who can hold real property.^" NATURE OP A MORTGAGE, 112. There are two theories as to the nature of a mort- gage recognized in the different states: (a) The common-law theory regards a mortgage as an es- tate in land, and the mortgagee as the owner of the land. 153. As to description of the mortgage debt, see Burt t. Gamble, 98 Mich. 402, 57 N. W. 261; Dunham v. Provision CJo., 100 Mich. 75, 58 N. W. 627; -Commercial Banli v. Weinberg, 70 Hun, 597, 25 N. Y. Supp. 235; Price v. Wood, 76 Hun, 318, 27 N. Y. Supp. 691; Snow v. Pressey, 85 Me. 408, 27 Atl. :272; Gleason v. Kinney's Adm'r, 65 Vt 560, 27 AtL 208; D'Oyly v. Capp, 99 dbury, 45 Me. 447. 1*8 White V. Brown, 2 Cush. (Mass.) 412; Ely v. Ely, 80 111. 532; Stinch- fleld V. Milllken, 71 Me. 567. 1*8 Cone V. Insurance Co., 60 N. Y. 619. 200 ESTATES AS TO QUALITY MORTGAGES. (Ch. 9 121. CREDITS — He is to be credited with amounts paid for repairs and reasonable improvements, the ex- pense of collecting the rents, taxes paid, and sums expended in removing incumbrances and in pro- tecting the property (p. 201). 122. ANNUAL RESTS— In computing the account, rests are made whenever, at the end of an interest pe- riod, the net debits exceed the interest due (p. 202). When the mortgagee is in possession, he must account for the rents and profits received, and apply them to the reduction of the mortgage debt.^''° The remedy of accounting can be had only in equity.^" The mortgagor is not entitled to an accounting unless he redeems the mortgage, or on foreclosure.^"^' A junior mortgagee who redeems a prior mortgage is entitled to an accounting from the prior mortgagee, if he has been in possession.^"' An assignee of the mortgagee, who takes possession, must account,^"* and an account- ing can be compelled by the assignee of the mortgagor.^ ^* Debits. The mortgagee is chargeable with whatever he has collected as rents and profits of the mortgaged premises,^ °^ or what he should hare received if he had managed the estate as a prudent owner.^'^ 150 Reltenbaugh v. Ludwick, 31 Ta. St. 131; Chapman v. Porter, 69 N. Y. 276; Dawson v. Drake, 30 N. J. Eq. 601; Roonev v. Crary, 11 111. App. 213; Wood v. Whelen, 93 111. 153; Byers v. Byers, 65 Mich. 598, 32 N. W. 831. But he must hold as mortgagee. Daniel v. Coker, 70 Ala. 260; Young v. Omohundro, 69 Md. 424, 16 AtL 120; Ayers v. Staley (N. J. Ch.) 18 Atl. 1046. 161 Hubbell V. Moulson, 53 N. Y. 225; Dailey v. Abbott, 40 Ark. 275; Farria V. Houston, 78 Ala. 250. 152 Weeks v. Thomas, 21 Me. 465; Farris v. Houston, 78 Ala. 250. 1B8 Gaskell v. Vlquesney, 122 Ind. 244, 23 N. E. 791. 164 Strang v. Allen, 44 111. 438. 186 Ruckman v. Astor, 9 Paige (N. Y.) 517; Gelston v. Thompson, 29 Md. B86. iBopeugh V. Davis, 113 U. S. 542, 5 Sup. Ct. 622; Strang v. Allen, 44 111. 428; Donohue v. Chase, 139 Mass. 407, 2 N. E. 84; Brown v. Bank, 148 Mass. 800, 19 N. B. 382; Van Buren v. Olmstead, 5 Paige (N. Y.) 9; Walsh v. Insur- ance Co.. 13 Abb. Prac. (.\. Y.) 33. 187 Harper v. Ely, 70 111. 581; Engleman Transp. Co. v. Longwell, 48 Fed. 129; Montague v. Railroad, 124 Mass, 242. §§ 119-122) ACCOUNTING BY THE MORTGAGEE. 201 He may be liable for rents which he has not actually received, by reason of his negligence in leasing to an insolvent tenant, or by em- ploying an incompetent agent.^"* A grantee under an absolute deed which is shown to be a mortgage is chargeable only with, the reasonable value of the use of the property.^" If the mortgagee himself occupies the premises, he must credit the mortgagor with an amount equal to their fair rental value.^"<> The damages for any waste committed while the mortgagee is in possession will bo cred- ited on the mortgage debt.^®^ The mortgagee may cut wood or work a mine on the mortgaged premises, if such, is a proper mode of enjoying the profits of the estate."' If he does so, the profits must be accounted for. Credits. A mortgagee in possession must make necessary repairs,*'' and he will be allowed, in his accounting, to charge for any repairs made by him which are reasonable.*'* He is also allowed the expense of any improvements which are proper for the enjoyment of the premises, but not for mere ornamental improvements.*"" On the other hand, he is not chargeable vrith an increased rental value due to improvements made by him with which he is not credited.*®* 158 Miller v. Lincoln, 6 Gray (Mass.) 556; Greer v. Turner, 36 Ark. 17. 169 Harper's Appeal, 64 Pa. St. 315; ?iIonx)w v. Jones, 41 Neb. 867, 60 N. W. 369. Or with what he has actually received, If he has not occupied per- sonally, Morris v. Budlong, 78 N. Y. 543. 160 Montgomery v. Chadwicli, 7 Iowa, 114; Holabird v. Burr, 17 Conn. 556; Sanders v. Wilson, 34 Vt. 318. 161 Onderdonk v. Gray, 19 N. J. Eq. 65; Daniel v. Coker, 70 Ala. 260. Cf. Whiting V. Adams, 66 Vt. 679, 30 Atl. 32. 162 Irwin v. Davidson, 3 Ired. Eq. (N. C.) 311; Millett v. Davey, 31 Beav, 470. 163 Barnett v. Nelson, 54 Iowa, 41, 6 N. W. 49; Dozier v. Mitchell, 65 Ala. 511. i«4 Miller v. Curry, 124 Ind. 48, 24 N, E. 219, 374; Hicklln v. Marco, 46 Fed. 424; Sparhawk v. Wills, 5 Gray (Mass.) 423; Woodward v. Phillips, 14 Gray (Mass.) 132; Malone v. Roy, 107 Cal. 518, 40 Pac. 1040. 16 5 Harper's Appeal, 64 Pa. St. 315; Rowell v. Jewett, 73 Me. 365. And see American Button-Hole, Overseaming & Sewing-Mach. Co. v. Burlington Mut. Loan Ass'n, 68 Iowa, 326, 27 N. W. 271; Mickles t. Dillaye, 17 N. T. 80. i«6 Hagthorp v. Hook's Adm'rs, 1 Gill «& J. (Md.) 270; Bell v. Mayor, etc., 10 Paige (N. Y.) 49. 202 ESTATES A8 TO QUALITY MORTGAGES. (Ch. 9' When a mortgagee is in possession under a mistaken belief that he has absolute title, he will be allowed compensation for all improve- ments erected.^ ®^ The general rule is that the mortgagee can claim no compensation for his own services in the management of me estate.^" But in some states he is now allowed a commission for collecting the rents.^" He may employ an agent to manage the property, when necessary.^''" The principal disbursements for which he may be credited are taxes and assessments; ^^^ money paid in discharging a prior incumbrance,^ ^^ or otherwise protecting the title; ^'^ and expenses in preserving the property, such as em- ploying a watchman.^ ^* He may charge for counsel fees necessarily expended in collecting the rents.^^' Annual Rests. Whenever the rents and profits are more than the annual inter- est, a rest is made; that is, the net amount of rents and profits in excess of the interest is deducted from the mortgage debt, and from that time interest is computed only upon the balance.^ ^° If, at the end of any interest period, the rents and profits are less than the i«T Miner v, Beekman, 50 N, Y. 337; Roberts v. Fleming, 53 III. 19G; Millard V. Truax, 73 Mich. 381, 41 N. W. 328; Hadley v. Stewart, 65 Wis. 481, 27 N. W. 340; Bacon v. Cottrell, 13 Minn. IIM (Gil. 183); Troost v. Davis, 31 Ind. 34. 168 Eaton V. Slmonds, 14 Picli. (Mass.) 98; Clark v. Smith, 1 N. J. Eq. 121; Elmer v. Loper, 25 N. J. Eq. 475. 189 2 Jones, Mortg. (5th Ed.) § 1133. iTo Davis V. Dendy, 3 Madd. 170; Harper v. Ely, 70 111. 581. 171 Harper v. Ely, 70 111. 581; Dooley v. Potter, 146 Mass. 148, 15 N. E. 499; Sldenberg v. Ely, 90 N. Y. 257; Gooch v. Botts, 110 Mo. 419, 20 S. W. 192; Savings & Loan Soc. v. Burnett, 106 Cal. 514, 39 Pac. 922. 172 McCormlck v. Knox, 105 U, S. 122; Davis v. Bean, 114 Mass. 360; Com- Btock V. Michael, 17 Neb. 288, 22 N. W. 549; Fitch v. Stallings, 5 Colo. App. 106, 38 Pac. 393. 173 Hughes V. Johnson, 38 Ark. 285. 174 Johnson v, Hosford, 110 Ind. 572, 10 N. B. 407. 17 Hubbard v. Shaw, 12 Allen (Mass.) 120. 176 Van Vronker v. Eastman, 7 Mete. (IVIass.) 157; Reed v. Reed, 10 Pick. (Mass.) 398; Gladding v. Warner, 36 Vt. 54; Blum v. Mitchell, 59 Ala. 535; Jencks v. Alexander, 11 Paige (N. Y.) 619. And see Adams v. Sayre, 76 Ala. 509. §§ 123-124) SUBROGATION. 203 interest charged, no rest is made, bnt the account continues until the rents and profits due exceed the interest.*" SAME— SUBROGATION. 123. Whenever one not primarily liable for the mortgage debt pays it to protect his own rights, he is sub- stituted in equity in place of the mortgagee, and may enforce against the person primarily liable all the securities held by the mortgagee. This is called *' subrogation." 124. The persons entitled to a deceased mortgagor's realty can compel the mortgage debt to be paid out of his personal property (p. 204). Svhrogation. Subrogation is a method of enforcing payment against one ulti- mately liable on a mortgage debt^'» In effect, it is an assignment of the creditor's mortgage and other securities to the one paying the debt."" Subrogation does not arise when part only of the mort- gage debt is paid.^®° It can be claimed only in favor of one who has paid a mortgage debt not his duty to pay.^^^ A mere volunteer cannot invoke the aid of subrogation. He must have paid under some compulsion made necessary for the protection of his rights; otherwise payment extinguishes the debt.* A mortgagor who has conveyed subject to the mortgage, and who has been proceeded against personally for the mortgage debt, is entitled to subrogation 177 Bennett v. Cook, 2 Hun (N. Y.) 526; French v. Kennedy, 7 Barb. (N. Y.) 452; Moshler v. Norton, 100 lU. 63; Snavely v. Pickle, 29 Grat (Va.) 27. ITS See Fetter, Eq. p. 254; Matthews v. Trust Co., 52 Fed. 687; McCormick V. Irwin. 35 Pa. St. 111. IT 9 Barnes v. Mott, 64 N. Y. 397; Ellsworth v. Lockwood, 42 N. Y. 89; Lay- lin V. Knox, 41 Mich. 40, 1 N. W. 913; Levy v. Martin, 48 Wis. 198, 4 N. W. 85; Muir v. Berkshire, 52 Ind. 149; Sessions v. Kent, 75 Iowa, 601, 39 N. W. 914. 180 In re Graff's Estate, 139 Pa. St. 69, 21 Atl. 233. 181 Arnold v. Green, 116 N. Y. 566, 23 N. B. 1; Pease v. Egan. 131 N. Y. 262, 30 N. E. 102; Young v. Morgan, 89 Ul. 199. * See Fetter, Eq. 254. 204 ESTATES AS TO QUALITY MORTQAQES. (Ch. 9 against his grantee.^" But one loaning money to the mortgagor to pay the mortgage debt is not subrogated unless there be a special agreement to that effect.**' An indorser of a note, or a surety of tJie mortgage debt, are subrogated to the rights of the mortgagee, when compelled to discharge the indebtedness.*'* And the prin- cipal creditor is subrogated to any securities held by the surety.*" Marshal'mg. By the doctrine of marshaling,*" where a prior mortgagee is en- titled to satisfaction of his debt out of two parcels of land, a junior mortgagee, who has a lien on only one of these parcels, may be subrogated to the rights of the prior mortgagee; *'^ and some eases hold that the^ prior mortgagor may be compelled to enforce payment as far as possible out of the land which the subsequent mortgage does not cover.*" Relief of the Heal hy the Personal Estate. The personal estate of a decedent is the primary fund for the pay- ment of his debts, and therefore the deceased owner's personal prop- erty is to be applied to the payment of mortgages on his realty,*'® 182 Johnson v. Zink, 51 N. Y. 333; Stillman's Ex'rs v. Stlllman, 21 N. J. Eq. 126; Greenwell v. Heritage, 71 Mo. 459. 188 Wilton v. Mayberry, 75 Wis. 191, 43 N. W. 901; Downer v. Miller, 15 Wis. 612; Kitcbell v. Mudgett, 37 Mich. 81; Bolman v. Lohman, 74 Ala. 507. 18* Gossin V. Brown, 11 Pa. St. 527; Richeson y. Crawford, 94 111. 165; Dick V. Moon, 26 Minn. 309, 4 N. W. 39; Motley v. HaiTis, 1 Lea (Tenn.) 577. i85Demott V. Manufacturing Co., 32 N. J. Eq. 124. 186 See Fetter, Eq. p. 256. 18T Detroit Sav. Bank v. Truesdall, 38 Mich. 430; Alexander v. Welch, 10 111. App. 181; Washington BIdg. & Loan Ass'n v. Beaghen, 27 N. J. Eq. 98; Herbert v. Association, 17 N. J. Eq. 497. 188 Ball V. Setzer, 33 W. Va. 444, 10 S. E. 798; Sherron v. Acton (N. J. Ch.) 18 Atl. 978; Abbott v. Powell, 6 Sawy. 91, Fed. Cas. No. 13. And see, for other applications. Brown v. McKay, 151 111. 315, 37 N. B. 1037; Cullen v. Tinist Co., 8 Minn. 6, 61 N. W. 818; Witt v. Rice, 90 Iowa, 451, 57 N. W. 951; Henkel v. Bohnke, 7 Tex. Civ. App. 16, 26 S. W. 645; Hanes v. Denby (N. J. Ch.) 28 Atl. 798; Black v. Reno, 59 Fed. 917. 188 Hoff's Appeal, 24 Pa. St. 200; Lupton v. Lupton, 2 Johns. Oh. (N. Y.) 614; Parsons v. Freeman, Amb. 115; Woods v. Huntingford, 3 Ves. 128. But Bee Tweddell v. Tweddell, 2 Brown, Ch. 101; Scott v. Beecher, 5 Madd. 96; Loosemore v. Knapman, Kay, 123. §§ 125-120} ASSIGNMENT OF THE EQUITY OF REDEMPTION. 205 unless he has expressed a contrary intention.^®" This right can, however, be claimed only by the widow, heirs, or devisees.^ '^ Nor can it be enforced against any others than the personal represen- tative, next of kin, or residuary legatee.^" It is not available against creditors, or when the personal estate is insolvent,^" nor against a specific legatee.^"* ASSIGNMENT OF THE EQUITY OF REDEMPTION. 125. A mortgagor may assign his equity of redem^ption, but the assignment is subject to the follo^wing con- ditions, among others: (a) The equity of redemption cannot be assigned to the mortgagee at the time the mortgage is executed. (b) An assignee takes the land subject to the mortgage. (c) He does not become personally liable for the mort- gage debt unless he expressly assumes it. (d) In some states, -wrhen he does assume it, he may be sued personally by the mortgagee. 126. An equity of redemption may be transferred by op- eration of la-wr, as: (a) By descent. (b) By sale on execution. No Mortgage without an Equity of Bedemption. The mortgagor's equity of redemption is an inseparable incident of a mortgage. A mortgage cannot be created without an equity of redemption. An instrument having that effect would not be a mortgage, but an absolute conveyance, or a sale with a right to re- 190 As by specific bequests of his personal property. Hoff's Appeal, 24 Pa. St. 200. See Serle v. St Elvy, 2 P. Wms. 386. 191 Haven v. Foster, 9 Pick. (Mass.) 112; Lockbart v. Hardy, 9 Beav. 379. And see Duke of Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229. 192 Hocker's Appeal, 4 Pa. St. 497; Gibson v. McCormlck, 10 Gill &. J. (Md.) 65; Cope v. Cope, 2 Salk. 449. 19S Hocker's Appeal, 4 Pa, St. 497; Duke of Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229. 194 Oneal v. Mead, 1 P. Wms. 693; Lutkins t. Leigh, Cas. t Talb. 63. See also, Evelyn v. Evelyn, 2 P. Wms. 659; Middleton v. Middleton, 15 Beav. 450, 206 ESTATES AS TO QUALITY MORTGAGES. (Ch. 9 purchase. Nor can the equity of redemption be assigned to the mortgagee at the time the mortgage is executed.^®" The mortgagee may purchase the equity of redemption at a subsequent time,^" but such transactions are carefully scrutinized by the courts.^"^ Rights of an Assignee. After the execution of a mortgage the mortgagor may sell his equity of redemption as a whole or in parcels. So he may make successive mortgages.^®® But in each case the transfer is subject to the previous mortgage.^®* The mortgagee is a purchaser, to the extent of his claim, and as such is protected under the recording laws.'^"" He is entitled to have the whole of the mortgaged premises as security for his debt, and cannot be made to accept part of them as payment. Nor can a purchaser of the equity of redemption com- pel him to make partition.^ °^ A purchaser of the mortgagor's rights, or, as he is usually called, an "assignee of the equity of redemption," though he takes the land subject to the mortgage, may acquire a paramount title, and set it up against the mortgagee,^ °^ unless he is estoi)ped by recitals in his deed.*"' He may, however, in such case, show that the mortgage 198 Peugh T. Davis, 96 U. S. 332; Willets v. Burgess, 34 111. 494; Bayley v. Bailey, 5 Gray CSIass.) 505. 198 Ten Eyck v. Craig, 62 N. Y. 406; Phelan v. De Martin, 85 Cal. 365, 24 Pac. 725. 197 Phelan v. De Martin, 85 Cal. 365, 24 Pac. 725; Hinkley v. Wheelwright, 29 Md. 341; Peugh v. Davis, 96 U. S. 332; Oliver v. Cunningham, 7 Fed. 689. 198 Hodson V. Treat, 7 Wis. 263; Buchanan v. Monroe, 22 Tex. 537. 189 Kruse v. Scripps, 11 111. 98; Hartley v. Harrison, 24 N. Y. 170. As to leases of the mortgaged premises, see ante, p. 132. 200 Rowell V. Williams, 54 Wis. 636, 12 N. AV. 86; Bass v. Wheless, 2 Tenn. Ch. 531; Moore v. Walker, 3 Lea (Tenn.) 656; Patton v. Eberhart, 52 Iowa, 67, 2 N. W. 954; Herff v. Griggs, 121 Ind. 471, 23 N. E. 279. 201 Spencer v. Waterman, 36 Conn. 342; McConihe v. Fales, 107 N. Y. 404, 14 N. E. 285; Carpenter v. Koons, 20 Pa. St. 222; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Daniel v. Wilson, 91 Ga. 238, 18 S. E. 134. 20 2 Knox V. Easton, 38 Ala. 345. 208 Such as, that he takes subject to the mortgage, or assumes the mort- gage. Kennedy v. Borie, 166 Pa. St 360, 31 Atl. 98. But see Robinson Bank v. Miller, 153 111. 244, 38 N. E. 1078. Nor can the assignee deny its validity for failure of consideration, Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10; Haile v. Nichols, 16 Hun (N. Y.) 37; or for §§ 125-126) ASSIGNMENT OF THE EQUITY OF REDEMPTION. 207 has been paid by the mortgagor, or other matter in discharge."* The mortgagor may covenant to pay the mortgage, but otherwise his assignee is not entitled to compensation from the mortgagor if the mortgage is enforced against the land.*"" Nor is a purchaser from the mortgagor entitled to collateral security held by the mort- gagee.^"' An assignee of the equity of redemption does not become personally liable for the mortgage debt unless he expressly assumes its payment."^ When the grantee assumes the mortgage debt, the mortgagor becomes merely a surety for him, and, if ]ie is forced to pay the debt, may collect it from his grantee.^ °* The mortgagee usury, Hartley v, Harrison, 24 N. Y. 170; De Wolf v. Johnson, 10 Wheat. 367; Cleaver v. Burcky, 17 111. App. 92; Frost v. Shaw, 10 Iowa, 491. But the mortgagor may confer on his grantee a right to contest the validity of the mortgage. Bennett v. Bates, 94 N. Y. 354; Magie v. Reynolds (N. J. Gh.) 26 All. 150. 204 Hartley v. Tatham, 2 Abb. Dec. (N. Y.) 333; Williams v. Thurlow,. 31 Me. 31)2; Bennett v. Keehn, 57 Wis. 582, 15 N. W. 776. 20 5 Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Gayle v. Wilson, 30 Grat. (Va.) 166. 2 06 Brewer v. Staples, 3 Sandf. Ch. (N. Y.) 579. 207 strong V. Converse, 8 Allen (Mass.) 557; Middaugh v. Bachelder, 33 Fed. 706; Comstock v. Hitt, 37 111. 542; Trotter v. Hughes, 12 N. Y. 74; Stebbhis v. Hall, 29 Barb. (N. Y.) 524; Metzger v. Huntington, 139 Ind. 501, 37 N. E. 1084; Offut V. Cooper, 136 Ind. 701, 36 N. B. 273; Green v. Hall, 45 Neb. 89, 63 N. W. 119; Granger v. Roll (S. D.) 62 N. W. 970. Such is the effect of a clause pro- viding that "the mortgagee assumes a mortgage," etc. Coming v. Burton, 102 Mich. 86, 62 N. W. 1040; Stephenson v. Elliott, 53 Kan, 550, 36 Pac. 980; Bur- bank V. Roots (Colo. App.) 35 Pac. 275; Grand Island Sav. & loan Ass'n v. Moore, 40 Neb. 686, 59 N. W. 115; Wayman v. Jones, 58 Mo. App. 313; Wil- liams V. Everham, 90 Iowa, 420, 57 N. W. 901. And see Lennox v. Brower, 160 Pa. St. 191, 28 Atl. 839; Williams v. Moody, 95 Ga. 8, 22 S. E. 30. But cf. Carrier v. Paper Co., 73 Hun, 287, 26 N. Y. Supp. 414; Hopper v. Calhoun, 52 Kan. 703, 35 Pac. 816. But not a provision that he takes "subject to the mortgage." Tanguay v. Felthousen, 45 Wis. 30; Moore's Appeal, 88 Pa. St. 450; Walker v. Goodsill, 54 Mo. App. 631; Lang v. CadweU, 13 Mont. 458, ^ Pac. 957. He may assume the debt by a parol agreement. Merriman v. Moore, 90 Pa. St. 78; Lamb v. Tucker, 42 Iowa, 118. ao8 Flagg V. Geltmacher, 98 111. 293; Calvo v. Davies, 73 N. Y. 211; Alt v. Banholzer, 36 Minn. 57, 29 N. W. 674; Williams v. Moody, 95 Ga. 8, 22 S. E. 30. The mortgagor may take an assignment of the mortgage, and foreclose it against his grantee. 1 Jones, Mortg. (5th Ed.) § 768. He may do this without a formal assignment. Baker v. Terrell, 8 Minn. 195 (GiL 165); Risk v. Hoff- 208 ESTATES AS TO QUALITY MORTGAGES. (Ch. 9 need not accept such an agTeement between a mortgagor and his grantee;"" but, if he does accept, it constitutes a novation, and an extension of time given by the mortgagee to the grantee will dis- charge the mortgagor from personal liability, since he is merely a surety. ^'^^ When, however, it is expressed in a subsequent mort- gage that the prior mortgage is assumed, the subsequent mortgagee does not become personally liable for the prior mortgage debt."^ In some states the mortgagee may enforce an assumption of the mortgage debt by an assignee of the equity of redemption.'" Assignment hy Operation of Law. On the death of the mortgagor the equity of redemption passes to his heirs according to the rules of descent of realty.*" If the mortgage is foreclosed in his lifetime, any surplus proceeds is per- sonalty, and, on his death, goes to his personal representative. But, if the foreclosure is not until after his death, the heirs are entitled man, 69 Ind. 137. The mortgagor may bring an action against his assignee to enforce the promise before he has himself paid the debt. Rubens v. Prlndle, 44 Barb. (N. Y.) 306. 209 Fish V. Glover, 154 111. 86, 39 N. E. 1081; Connecticut Mut Life Ins. Co. T. Tyler, 8 Biss. 369, Fed. Gas. No. 3,109. a 10 Spencer v. Spencer, 95 N. Y. 353; Murray v. Marshall, 94 N. Y. 611; Calvo v. Davles, 73 N. Y. 211; Union Mut. Life Ins. Co. v. Hanford, 27 Fed. 588; George v. Andrews, 60 Md. 26; Travers v. Dorr, 60 Minn. 173, 62 N. W. 269. Cf., however, Cook v. Prindle (Iowa) 63 N. W, 187. 211 Gamsey v. Rogers, 47 N, Y. 233; Bassett v. Bradley, 48 Conn. 224. Even if the mortgage be in form an absolute deed. Pardee v. Treat, 82 N. Y. 385; Cole v. Cole, 110 N. Y. 630, 17 N. E. 682; Gaffney v. Hiclis, 131 Mass. 124. 212 1 Jones, Mortg. (5th Ed.) § 755; Clark, Cont. p. 513; Winters v. Mining Co., 57 Fed. 287; Trotter v. Hughes, 12 N. Y. 74; Osborne v. Cabell, 77 Va. 462. In some states the mortgagee can proceed only In equity. Willard v. Worsham, 76 Va. 392. In these states the mortgagor cannot release the gran- tee from liability without the mortgagee's consent. GifiPord v. Corrigan, 117 N. Y. 257, 22 N. E, 756; Douglass v. Wells, 18 Hun (N. Y.) 88. But see Gold V. Ogden (Minn.) 63 N. W. 266. In other states the mortgagee is treated as merely subrogated to the mortgagor's security, and cannot sue the assignee directly at law. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494; Booth v. Insurance Co., 43 Mich. 299, 5 N. W. 381; Crowell v. Currier, 27 N. J.'Eq. 152; Biddel v. Brizzolara, 64 Cal. 354, 30 Pac. 609. In these states the mortgagor may release his grantee without the assent of the mortgagee. O'Neill v, Clark, 33 N. J. Eq. 444. 218 See post, p. 478. §§ 127-129) ASSIGNMENT OF THE MORTGAGE. 209 to the surplus. *** An equity of redemption may be sold on execu- tion,"' even by the mortgagee,"* but, in most states, not under an' execution issuing on the mortgage debt."" The same rules apply to equitable mortgages. 218 ASSIGNMENT OF THE MORTGAGE. 127. A mortgag-ee may assign his interest, or part of it, on the following conditions: (a) It must be by deed. (b) The mortgage debt must accompany the mortgage. (c) The assignee takes the mortgage subject to the same equities as he takes the mortgage debt, and no other. 128. On the death of the mortgagee before foreclosure, his interest goes to his personal representative. 129. Before foreclosure the mortgagee's interest is not sub- ject to attachment or sale on execution. The mortgagee may assign the mortgage,^ ^* and so may his ex ecutor or administrator.* ^^ An assignment must be by deed, 221 «i* Dunning v. Bank, 61 N. Y. 497; Fliess v, Buckley, 22 Hun (N. Y.) 551. 216 Atkins V. Sawyer, 1 Pick. (Mass.) 351; Fitch v. Plnckard, 5 111. 69. And Bee Bernstein v, Humes, 71 Ala. 260. 21C Gushing v. Hurd, 4 Pick. (Mass.) 253; Seaman v. Has, 14 Colo. 536, 24 Pac. 461. 217 Young V. Ruth, 55 Mo. 515; Goring's Ex'x v. Shreve, 7 Dana (Ky.) 64; Tice V. Annin, 2 Johns Ch. (N. Y.) 125; Washburn v. Goodwin, 17 Pick. (Mass.) 137. Contra, Cottingham v. Springer, 88 111. 90. 218 Clinton Nat. Bank v. Manwarring, 39 Iowa, 281; Turner v. Watkins, 31 Ark. 429. But see Gibson v. Hough, 60 Ga. 588; Phinizy v. Clark, 62 Ga. 623. 219 A mortgage of indemnity cannot be assigned until the mortgagee has paid the debt. Abbott v. Upton, 19 Pick. (Mass.) 434; Wallace t. Goodall, 18 N. H. 439; Jones v. Bank, 29 Conn. 25. Contra, Carper v. Munger, 62 Ind. 481; Murray v. Porter. 26 Neb. 288, 41 N. W. 1111. 220 Ex parte Blair, 13 Mete. (Mass.) 126; Ladd v. Wlggin, 35 N. H. 421; Grooker v. Jewell, 31 Me. 306. *2i Warden v. Adams, 15 Mass. 233; Torrey v. Deavitt, 53 Vt 331. But «ee Kinna v. Smith, 3 N. J. Eq. 14. REAL PROP. — 14 210 ESTATES AS TO QUALITY MORTGAGES. (Cll. 9 and an assignment indorsed on the mortgage deed would not be operative at law.^*^^ An assignee of the mortgage takes the mort- gagee's interest,*** and he can foreclose in his own name.*** After an assignment, an agreement by the mortgagor and mortgagee can- not affect the assignee's rights, provided the mortgagor has had notice of the assignment**"^ There may be an assignment of part of a mortgage.*** If the mortgage is assigned without a transfer of the mortgage debt, the assignee takes only the legal title. He holds as a trustee for the protection of the mortgage debt, when that is held by another than the mortgagee.**^ But, if the mort- gage debt has not been transferred by the mortgagee, some courts hold that it passes to the assignee by the transfer of the mort- gage.*** An assignment of the mortgage debt carries with it the benefit 222 Adams v. Parker, 12 Gray (Mass.) 53. A mere delivery of the mort- gage deed, unaccompanied by the note secured, is not an assignment Bow- ers V. Johnson, 49 N. Y. 432; Merritt v. Bartholicl£, 36 N. Y. 44. 228 Anderson v. Banli, 98 Mich. 543, 57 N. W. 808; Harrison v. Yerby (Ala.) 14 South. S21; Hunt v. Mortgage Security Co., 92 Ga. 720, 19 S. E. 27. Cf. Gray v. Waldron, 101 Mich. 612, 60 N. W. 288; Geiger v. Peterson, 164 Pa. St. 352. 30 Atl. 262. 224 Irish V, Sharp, 89 111. 261. 22 6 Black V. Reno, 59 Fed. 917; Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15; Parker v. Randolph, 5 S. D. 549, 59 N. W. 722. And see Cutler v. Clem- entson, 67 Fed. 409. 226 Union Mut Life Ins. Co. v. Slee, 123 111. 57, 12 N. E. 543; McSorley v. Larissa, 100 Mass. 270; Wyman v. Hooper, 2 Gray (Mass.) 141. So part of the mortgage debt may be assigned, and with it all of the mortgage. Lang- don V. Keith, 9 Vt. 299. In several states where notes secured by a mort- gage are assigned successively, the one first due has the first right to the mortgage security. Horn v. Bennett, 135 Ind. 158, 34 N. E. 956; Stanley v. Beatty, 4 Ind. 134; Grapengether v. Fejervary, 9 Iowa, 163; Wood v. Trask, 7 Wis. 566. Contra, Cullum v. Erwin, 4 Ala. 452; State Bank v. Mathews, 45 Neb. 659, 63 N. W. 930; Bartlett v. Wade, 66 Vt. 629, 30 Atl. 4; First Nat. Bank v. Andrews, 7 Wash. 261, 34 Pac. 913. 227 Bailey v. Gould, Walk. (Mich.) 478; Merritt v. Bartholick, 36 N. Y. 44; Aymar v. Bill, 5 Johns. Ch. (N. Y.) 570; Swan v. Yaple, 35 Iowa, 248; Peters T. Bridge Co., 5 Cal. 335; Johnson v. Cornett, 29 Ind. 59; Thayer v. Campbell, 9 Mo. 280. 22 8 Philips V. Bank, 18 Pa. St. 394. But see Fletcher v. Carpenter, 37 Mich. 412. And cf. Johnson v. Clarke (N. J. Ch.) 28 AtL 558; State Bank v. Math- ews. 45 Neb. 659, 03 N, W. 930. §§ 127-129) ASSIGNMENT OF THE MORTGAGE. 211 of the mortgage,"* and, when a debt secured by a trust deed is assigned, the tmstee holds for the benefit of the assignee. ^'^ A mortgagee may set up an after-acquired title against his assignee, unless his assignment was with covenants of warranty."^ And he may show that his assignment, though absolute in form, was for security only.^^a An assignment of the mortgage carries with it all other securities which the mortgagee has for the same debt.^s An assignment raises no implied warranty as to the solvency of the mortgagor, but it does create a warranty that the mortgage debt has not beeu paid."* An assignee of a mortgage and the note which it secures takes the mortgage free from all equities of which he has no notice, because the note itself, which is the prin- cipal thing, is free from such equities.""^ But when the note is overdue, or is nonnegotiable, the mortgage is subject, in the hands of the assignee, to all the equities which existed between the orig- inal parties before notice of assignment to the mortgagor," « and the rule is the same when the mortgage is given without a mort- gage note.^'^ If the mortgagee dies before foreclosure, his interest goes to his. 229 Larned v. Donovan, 31 Abb. N. O. 308, 29 N. Y. Supp. 825; Jenkins r, Wilkinson, 113 N. C. 532, 18 S. E. 696; Gumbel v. Boyer, 46 La. Ann. 762, 15 South. 84; Longfellow v. McGregor (Minn.) 63 N. W. 1032. But see Fitcb V. McDowell, 145 N. Y. 498, 40 N. E. 205. 230 Thomas v. Linn (W. Va.) 20 S. E. 878; Clark v. Jones, 93 Tenn 639 27 S. W. 1009. 281 Weed Sewing Mach. Co, v. Emerson, 115 Mass. 554. 882 Pond V. Eddy, 113 Mass. 149. 233 Philips V. Bank, 18 Pa. St. 394. But see Smith v. Starr 4 Hun fN Y) 123. ■ *^ 2 34 1 Jones, Mortg. (5th Ed.) § 831; French v. Turner, 15 Ind. 59. 235 Button V. Ives, 5 Mich. 515; Jones v. Smith, 22 Mich. 360;' Taylor v Page. 6 Allen (Mass.) 86; Kenicott v. Supervisors, 16 Wall. 452; Preston v' Case. 42 Iowa, 549; Farmers' Nat. Bank v. Fletcher, 44 Iowa. 252; Swett y. Stark, 31 Fed. 858; Barnum v. Phenix, 60 Mich. 388, 27 N. W. 577; Helmer V. Kroliek, 36 Mich. 371; Gould v. Marsh, 1 Hun (N. Y.) 566; Lewis' v. Kirk 28 Kan. 497. Contra, Scott v. Magloughlin, 133 111. 33, 24 N. E. 1030. 236 McKenna v. Kirkwood, 50 Mich. 544, 15 N. W. 898; Fish v French 15 Gray (Mass.) 520; Owen v. Evans, 134 N. Y. 514, 31 N. E. 999. That in New York he takes it subject also to latent equities in favor of third persons seo Bush V. Lathrop, 22 N. Y. 535. 28T Corbett v. Woodwaxd, 5 Sawy. 403, Fed. Cas. No. 3,223. 212 ESTATES A3 TO QUALITY MORTGAGES. (Ch. 9 persona/ representative, and it may be assigned or otherwise disposed of bj the latter without an order of the court."' The heirs of the mortgagee cannot sell the mortgage, nor can they foreclose it.^'' Unless the mortgagee has acquired the mortgaged premises under a strict foreclosure, or has bid them in at a foreclosure sale, he has no interest which is subject to attachment, or to a sale on execu- tion. The same is time of a beneficiary under a deed of tnist.^*"* This is because the mortgage is a mere incident to the mortgage debt. The creditor's remedy is against the mortgage debt, which is the principal thing. PRIORITY OF MORTGAGES AND OTHER CO]SrVEYANCES. 130. No subsequent purchaser or incumbrancer can take priority over a conveyance of -which he has notice. Such notice may be : (a) Actual t^p. 213). (b) ImpUed (p. 215). (c) Constructive, which includes notice: (1) By recitals in title deeds (p. 216). (2) By possession (p. 216). (3) By lis pendens (p. 218). (4) By registration (p. 218). The priority of mortgages and other conveyances of realty de- pends almost entirely on the doctrine of notice.^ *^ There is a maxim of equity, that, between equal equities, priority of time pre- vails; *** but in dealing with conveyances of realty the question usually is whether the equities are equal, and they are not if the subsequent purchaser has notice of the prior conveyance. How- ass Baldwin v. Hatchett, 56 Ala. 461; Collamer v. Langdon, 29 Vt 32; Doug- lass V. Duriu, 51 Me. 121. 23 8 Collamer v. Langdon, 29 Vt. 32; Webster v. Calden, 56 Me. 204. 2*0 Marsh v. Austin, 1 Allen (Mass.) 235; Jackson v. Willard, 4 Johns. (N. Y.) 41; Kickert v. Madeira, 1 Kawle (Pa.) 325; Nicholson v. Walker, 4 111. ApiJ. 404; Scott v. Mewhirter, 49 Iowa, 487; Buck v. Sanders, 1 Dana (Ky.) 1S7. 241 See Fetter, Eq. c. 5. 2*2 Fetter, Eq. p. 36. § 130) PRIORITY OF MORTGAGES AND OTHER CONVEYANCES. 213 ever, a purchaser with notice may acquire a good title from one who purchased without notice, because otherwise the latter's free right of disposal would be abridged.^" On the other hand, a purchaser without notice can take a good title from one who had notice.'** The question of priority is in many cases affected by fraud of the prior grantee; as, where a prior mortgagee conceals the existence of his mortgage from one about to take a mortgage on the same premises,**" or, on inquiry being made, states that nothing is due on his mortgage, he is estopped to set up the mortgage against the subsequent mortgagee."* But a mortgagor is not bound to dis- close his mortgage if it is on record."^ Actnwl Notice, Whenerer a subsequent mortgagee or grantee has actual notice of a prior conveyance, he can acquire no priority over such convey- ance.''** Wlien the unrecorded conveyance has actually been seen by, or read before, the purchaser, but under circumstances where he could not well suspect the identity of the land, nor remember its de- scription, — as where lots are sold by number from a plat, and he comes himself to buy what he naturally thinks are other lots, — the purchaser is not charged with notice.'*^ Actual notice does not 243 Alexander v. Pendleton, 8 Cranch, 462; Boone v. Chiles, 10 Pet 177; Morse v. CJurtis, 140 Mass. 112, 2 N. E. 929; Boynton v. Rees, 8 Pick. (Mass.) 829; Webster v. Van Steenbergh, 4« Barb. (N. Y.) 211; Bracken v. Miller, 4 Watts & S. (Pa.) 102; Day v. Clark, 25 Vt. 397; Pringle v. Dunn, 37 Wis. 449. Contra, Sims v. Hammond, 33 Iowa, 368. But see, contra, where the deed is recorded in the meantime. Van Rensselaer v. Clark, 17 Wend. (N. Y.) 25; Bayles v. Young, 51 111, 127. But one who has taken a title, with notice, and transferred it, cannot acquire a good title by subsequently repurchasing from one who had no notice. Schutt v. Large, 6 Barb. (N. Y.) 373. 244 Wood V. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951; Choteau v. Jones, 11 111. 300; Trull v. Bigelow, 16 Mass. 406; Somes v. Brewer, 2 Pick. (Mass.) 184; Glidden v. Hunt, 24 Pick. (Mass.) 221; Fallass v. Pierce, 30 Wis. 443. 24B L'Amoureux v. Vandenburgh, 7 Paige (N. Y.) 316. «46 riatt V. Squire, 12 Mete. (Mass.) 494; Miller v, Bingham, 29 Vt. 82. And Bee Fay v. Valentine, 12 Pick. (Mass.) 40; Chester v. Greer, 5 Humph. (Tenn.) 25. 247 Brinckerhoff v. Lansing, 4 Johns. Ch. (N. Y.) 65; Paine v. French, 4 Ohio, 318; Palmer v. Palmer, 48 Vt. 69. 248 Fetter, Eq. 102. And see Wallace v. McKenzie, 104 CaL 130, 37 Pac. 659. 248 Armstrong v. Abbott, 11 Colo. 220, 17 Pac. 517; Vest v. Mlchle, 31 Grat (Va.) 149. 214 ESTATES A3 TO QUAI.ITV MORTQAQES. (Cll. 9 necessitate actual knowledge."" It may be shown by circumstantial evidence. \Miether there was such notice depends in each instance upon the facts of the case."" The test is whether the circumstances were such as to cause a reasonably prudent man to make inquiry.^"* Hut the notice must afford sufficient infonnation to make a reason- able intjuiry on, and not merely to i>ut him on inquiry.*"' For in- stance, a mere rumor is not notice.-"* A purchaser who is put on in- quiry must make a reasonable investigation of the title,*"*' and he cannot rely on statements of his grantor, or one who is interested in concealing the prior incumbrance.* "^^ He is presumed to have no- tice of facts which due inquiry would have shown him.*"*^ The burden of proof, however, is on the one who seeks to establish the existence of notice.* °* Notice, to affect a subsequent purchaser, must be received before the transaction is completed and the price 2 60 Fetter, Eq. 81. See, however, Lamb v. Pierce, 113 Mass. 72. 2B1 Lamb v. Pierce, 113 Mass. 72; White v. Foster, 102 Mass. 375; Sibley v. LetHngwell, 8 Allen (Mass.) 684; Michigan Mut Life Ins. Co. v. Conant, 40 Mich. 530; Vest v. Michie, 31 Grat. (Va.) 149; Vaughn v. Tracy, 22 Mo. 415; Specli V. Kiggin, 40 Mo. 405. 2 52 Fassett v. Smith, 23 N. Y. 252; Williamson v. Brown, 15 N. Y. 354; Baker v. Bliss, 39 N. Y. 70; Maupin v. Emmons, 47 Mo. 304; Wilcox v. Hill, 11 Mich. 256; Helms v. Chadboume, 45 Wis. 60; Brinkman v. Jones, 44 Wis. 498; Heaton v. Prather, 84 111. 330; Curtis v. Muudy, 3 Mete. (Mass.) 405; Wilson V. Hunter, 30 lud. 466. 263 Dey V. Dunham, 2 Johns. Ch. (N. Y.) 182; Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260; City of Chicago v. Witt, 75 111. 211; Maul v. Rider, 59 Pa. St 167. 254 parkhurst v. Hosford, 21 Fed. 827; Pittman v. Sofley, 64 111. 155; Otis T. Spencer, 102 111. 622; Buttrick v. Holden, 13 Mete. (Mass.) 355; Shepard v. Shepard, 36 Mich. 173; Appeal of Bugbee, 110 Pa. St. 331, 1 Atl. 273; Kerns V. .Swope, 2 Watts (Pa.) 75; Lament v. Stimson, 5 Wis. 443. 2 id Schweiss v. Woodruff, 73 Mich. 473, 41 N. W. 511; Oliver v. Sanborn, 60 Mich. 346, 27 N. W. 527; Cambridge Valley Bank v. Delano, 48 X. Y. 326; Maul V. Rider, 59 Pa. St 167; Wilson v. Miller, 16 Iowa, 111. But if Inquiry fails to disclose the prior conveyance, he Is protected. Williamson v. Brown, 15 N. Y. 354. 2 68 Blatchley v. Osbom, 33 Conn. 226; Russell v. Petree, 10 B. Mon. (Ky.) 184; Littleton v. Glddings, 47 Tex. 109. 2 87 Passumpsic Sav. Bank v. First Nat Bank, 53 Vt 82; Austin v. Pulschen (Cal.) 39 Pac. 799. Notice of an unrecorded deed is notice of all its contents. Martin v. Cauble, 72 Ind. 67; Hill v. Murray, 56 Vt. 177. »58 Ryder V. Rush, 102 111. 338; McCormIck v. Leonard, 38 Iowa, 272. § ISO) PRIORITY OP MORTGAGES AND OTHER CONVEYANCES. 216 paid.*"* If notice is received after part of the money has been paid over, the protection extends to that part, but not to money subsequently paid."' Irnplzed Notice. By the doctrine of implied notice, one who has no notice himself is presumed to have notice because of his legal relations with one who has notice. This arises most often from the relation of prin- cipal and agent,"^ which includes attorney and client."^* One who deals with real property through an agent is bound by any notice which may come to the agent in the scope of his emplo^-ment.''^' In the same way, a cestui que trust is bound by notice to his trus- tee.^^* But notice to a husband is not notice to his wife."" No- tice to a corporation can be given only by notice to an ofiQcer who has the matter in charge. Notice to the agent of a corporation is not notice to the corporation, unless it touches matters in the line of the agent's business."* The implication of notice in any case may be rebutted by showing facts which raise a presumption that the agent did not communicate his knowledge to his principal. This is the case where the agent has been guilty of fraud, or where the knowledge comes to the agent in another transaction, or under such circumstances that he will not be presumed to have remem- bered it.*" 259 Brown v. Welch, 18 111. 343; Schultze v. Houfes, 96 111. 335; Palmer v. Williams, 24 Mich. 328; Dixon v. Hill, 5 Mich. 404; Everts v. Agnes, 4 Wis. 843. 260 Baldwin v. Sager, 70 111. 503; Redden v. Miller, 95 HI. 836. 261 Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260; Bigley v. Jones, 114 Pa. St. 510, 7 Atl. 54; Sowler v. Day, 58 Iowa, 252, 12 N. W. 297. But see Reynolds v. Black (Iowa) 58 N. W. 922. 262 May V. Le Claire, 11 Wall. 217; Josephthal v. Heyman, 2 Abb. N. O. (N. T.) 22; Walker v. Schreiber, 47 Iowa, 529. 28 3 Hoppock V. Johnson, 14 Wis. 303; Tucker v. Tllton, 55 N. H. 223. 264 Pope V. Pope, 40 Miss. 516. 265 Prlngle v. Dunn, 37 Wis. 449; Satterfleld v. Malone, 35 Fed. 445. 266 Wilson V. McCullough, 23 Pa. St. 440. 26 T Armstrong v. Abbott, 11 Colo. 220, 17 Pac. 517; 1 Jones, Mortg. (5th Dd.) i 660. 216 ESTATES AS TO QUALITY MORTGAGES. (Ch. 9 O/JVitructive Notice — Becitals in Title Deeds. Constructive notice is notice implied by operation of law, and can- not be controverted by extraneous evidence.*®' One who takes a conveyance of realty is bound by the recitals in all the instruments in his chain of title,*'" such as a recital in a deed that the premises are conveyed subject to a mortgage. This is binding on a subse- quent purchaser, even though the mortgage is not recorded.*''* And so he is hound by notice of facts of which he is put on inquiry by recitals in his title deeds."^ And, when one has actual notice of an unrecorded conveyance, he is bound by all the facts of which such conveyance is notice.*^* But, when a reference in one of the deeds making up the chain of title to other deeds or writings is only incidental (for instance, if it is in a part of the deed in which other lands are granted), the purchaser is not bound to pursue the inquiry; and he has no actual, and, it seems, not even constructive, notice of the matter which may be found in those deeds.*^' Same — Possession. In most states it is held that possession by one not the owner of record is notice of the rights of the occupant,*^* as when one is J8 8 Rogers V. Jones, 8 N. H. 264. 2«8 George v. Kent, 7 Allen (Mass.) 16; United States Mortg. Co. y. Gross, 93 111. 483; Dean v. Long, 122 111. 447, 14 N. B. 34; Baker v. Mather. 25 Mich. 51; Cambridge Valley Bank v. Delano, 48 N. Y. 326; Parke v. Neeley, 90 Pa, St 52; Kerr v. Kitchen, 17 Pa. St. 433; Dailey v. Kastell, 56 Wis. 444, 14 N. W. 635; Clark v. Holland, 72 Iowa, 34, 33 N. W. 350. «To Kitchell V. Mudgett, 37 Mich. 81; Baker v. Mather, 25 Mich. 51; Garrett V. Puckett, 15 Ind. 485. 2T1 Cordova v. Hood, 17 Wall. 1; Lytle v. Turner, 12 Lea (Tenn.) 641. »72 Howard Ins. Co. v. Halsey, 8 N. Y. 271; Green v. Slayter, 4 Johns. Oh. iS; Bent v. Coleman, 89 lU. 364. 2 73 See Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S. W. 797. 274 Phillips V. CosUey, 40 Ala. 486; Byei-s v. Engles, 16 Ark. 543; Smith t. rule, 31 Cal. 180; Massey v. Hubbard, 18 Fla. 688; Sewell v. HoUand, 61 Ga. 308; Brainard v. Hudson, 103 111. 218; Sutton v. Jervis, 31 Ind. 265; Moore V. Pierson, 6 Iowa, 279; Lyons v. Bodenhamer, 7 Kan. 455; Hackwith v. Damron, 1 T. B. Mon. (Ky.) 235, Ringgold v. Brjan, 3 Md. Ch. 488; Allen v. Cadwell, 55 Mich. 8, 20 N. W. 692; New v. Wheaton. 24 Minn. 406; Vaughn f. Tracy. 22 Mo. 415; Phelan v. Brady, 110 N. Y. 587, 23 N. W. 1109; Appeal of Bugbee. 110 Pa. SL 331. 1 AtL 273. But other courts hold the contrary. Harral v. Leverty, 50 Conn. 46; Pomroy v. Stevens, 11 Mete. (Mass.) 244* Brinkman v. Jones, 44 Wis. 49S. § 130) PRIORITY OF MORTGAGES AND OTHER CONVEYANCES. 217 in possession as vendee under an executory contract to purchase,'^* or when one holds as lessee."' And most cases hold that posses- sion by a tenant is notice, not only of his own rights, but of the rights of his landlord as well."^ It is held by many courts that posses- sion is notice, although the possession is not actually known to the subsequent purchaser."* But possession is notice only during its continuance,"® and it must be visible, notorious, and exclu- sive."" Possession of part may operate as notice of a title to the whole of the premises.^^i In order that possession may constitute notice, it must be inconsistent with the title on which the pur-, chaser relies. "^ Therefore possession by a grantor is not notice to a subsequent purchaser of any right reserved, ''^^ though it may be notice of rights subsequently acquired."* On the other hand, long-continued possession by the grantor is held to be notice of any right claimed by him,"" as where he holds as mortgagor after giving a deed absolute in form."^ Possession by the mortgagor or his grantee is not notice of an unrecorded release.*" «T6 Bank of Orleans v. Flagg, 3 Barb. Ch. (N. Y.) 316. 2T6 Kerr v. Day, 14 Pa. St. 112. «7 7 u. S. v. Sliney, 21 Fed. 894; Ha worth v. Taylor, 108 HI. 275; Whitaker V. Miller, 83 111. 381; Hood v. Fahnestock, 1 Pa. St. 470; Dickey v. Lyon, 10 Iowa, 544; But see Beatie v. Butler, 21 Mo. 313; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847. 278 Ranney v. Hardy, 43 Ohio St. 157; Hodge v. Amerman, 40 N. J. Eq. 99, 2 Atl. 257; Edwards v. Thompson, 71 N. C. 177. 270 Ehle v. Brown, 31 Wis. 405; Meehan v. "Williams, 48 Pa. St. 238. 280 Morrison v". Kelly, 22 111. 610; Bogue v. Williams, 48 111. 371; Kendall V. Lawrence, 22 Pick. (Mass.) 540; M'Mechan v. Griffing, 3 Pick. (Mass.) 149; Webster v. Van Steenbergh, 46 Barb. (N. Y.) 211; Page v. Waring, 76 N. Y. 463; Ely V. Wilcox, 20 Wis. 523; Meehan v. WiUiams, 48 Pa, St 238. 281 Nolan V. Grant, 51 Iowa, 519, 1 N. W. 709; Watkins v. Edwards, 23 Tex. 443. 282 Staples T. Fenton, 5 Hun (N. Y.) 172; Plumer v. Robertson, 6 Serg. & R. (Pa.) 177; Smith v. Yule, 31 Cal. 180. 28S Newhall v. Pierce, 5 Pick. (Mass.) 450; Dawson t. Danbury Bank, 1& Mich. 489; Koon v. Tramel, 71 Iowa, 132, 32 N. W. 243. 2 84 1 Jones, Mortg. (5th Ed.) § 597. 2 85 White V. White, 89 111. 460; Ford v. Marcall, 107 111. 136; Illinois Cent. R. Co. V. McCullough, 59 111. 166; Hopkins v. Garrard, 7 B. Men. (Ky.) 312. 288 New V. Wheaton, 24 Minn. 406. «87 Briggs V. Thompson, 86 Hun, 607, 33 N. Y. Supp. 765. 218 ESTATES AS TO QUALITY MORTQAQES. (Ch. 9 SaTTie — Lis Pendens. By the doctrine of lis pendens,^" one who purchases realty from a party to a suit which involves the title thereto takes it subject to the rights of the litigants, as they may be determined by the ac- tion; that is, the pendency of the suit affecting the title to realty is constructive notice to purchasers who acquire interests in tlie property after the commencement of the action.^"' SAME— REGISTRATION. 131. By recording instruments ajffecting real property in the manner provided by statute, constructive no- tice of the contents of such instruments is given to subsequent purchasers and incumbrancers. In all states there are statutes which make it possible to give constructive notice of any conveyance affecting realty by recording the instrument in an office designated by the statute.^^" These statutes wUl be treated of in this place in their application to other kinds of instruments besides mortgages. The theory of the reg- istry acts is that, by the record of a conveyance, constructive no- tice is given of its existence and pro\'isions, because every one can examine the record. If a man does not record his deed or mort- gage, he is negligent, and should suffer, rather than an innocent purchaser.^®^ There is a difference between the effect of notice (actual or constructive), and that of recording, upon the action of a subsequent purchaser. Wliile, under the laws of many states, such a purchaser is protected against a prior, unrecorded convey- 288 See Fetter, Eq. p. 9a. 2 89 Haven v. Adams, 8 Allen (Mass.) 3G3; Jackson v. Andrews, 7 Wend. (N. Y.) 152; Boiling v. Carter, 9 Ala, 921; Blanchaid v. Ware, 37 Iowa, 305; Hersey v. Turbett, 27 Pa. St. 418; Youngman v. Railroad Co., 65 Pa. St. 278; Edwards v. Banksmith, 35 Ga. 213; Grant v. Bennett, 9G 111. 513; Smith v. Hodsdon, 78 Me. 180, 3 Atl. 276. But see Newman v. Chapman, 2 Rand. ^ and, as to such intention, their relation to each other and to the mortgage debt is material, when they hare not shown their intention by express words.*"^ However, a merger will never be prevented by the intention of the parties, where it will work wTong or injury to others.*"^ WTien one who has war- ranted against incumbrances pays a mortgage, the mortgage is dis- charged.*"* And so when payment is by the mortgagor, except un- der special circumstances, such as when the mortgagor has convey- ed the equity of redemption to one who has assumed the mortgage debt.*"" When the mortgagee acquires the right of redemption. there is no merger, if there are intervening incumbrances or liens,***® nor when the mortgagee has assigned the mortgage before he ac- 899 Gibbs V. Johnson (Mich.) 62 N. W. 145; Button v. Ives, 5 Mich. 515; Hooper v. Henry, 31 Minn. 264, 17 N. W. 476; Bell v. Woodward, 34 X. H. 90; S watts V. Bowen, 141 Ind. 322, 40 N. E. 1057. *oo Mann v. Mann, 49 111. App. 472; Sprague v. Beamer, 45 IlL App. 17; Souther v. Pearson (N. J. Ch.) 28 Atl, 450. At common law an assignment of the mortgage to the wife of the mortgagor discharged it by merger. 1 Jones, Mortg. (5th Ed.) § 850. But such is not now the rule. Model Lodging House Ass'n v. Boston, 114 Mass. 133; Newton v. Manwan-ing, 56 Hun, 045, 10 N. Y. Supp. 347; McCrory v. Little, 136 Ind. 86, 35 N. E; 836; Bean v. Boothby, 57 Me. 295. And see Bemis v. Call, 10 Allen (Mass.) 512. 4 Pa. St. 469, 30 Atl. 480; Dates v. Winslanley, 53 111. App. 023. 446 Bates v. Ruddick, 2 Iowa, 423. 447 Weiner v. Heintz, 17 111. 259; Stoddard v. Forbes, 13 Iowa, 296. 44 8 Lounsbury v. Norton, 59 Conn. 170, 22 Atl. 153. 448 Farwell v. Antis, 2 Wis. 533; Murphy v. FarweU, 9 Wis. 102; Hodgen v. Guttery, 58 111, 431; Strang v. Allen, 44 111. 428; American Buttonhole, etc., Co. V. Burlington Mut L. Ass'n, 61 Iowa, 464, 16 N. W. 527. 460 1 stim. Am. St. Law, § 1944 A, B; 2 Jones, Mortg. (5th Ed.) § 1051; Gates V. Ege, 57 Minn. 405, 59 N. W. 495. 461 Harter v. Twohlg, 158 U. S. 448, 15 Sup. Ct 883; Robinson v. Fife, 8 Ohio St. 551; Jarvis v. W^oodruff, 22 Conn. 548; Fox v. Blossom, 17 Blatchf. 852, Fed. Cas. No. 5,008. As to prescription, see post, p. 45G. 4 62 1 stim. Am. St. Law, § 1944 C. 238 ESTATES AS TO QUAIJTY MORTGAGES. (Ch. 9' courts of some states hold that the right to redeem is barred at the same time as the right to foreclose."^'' In order that possession by the mortgagee may bar the right of redemption, it is necessary that the possession be adverse during the whole period of limitation.*"* The right to redeem is lost by limitation only when the mortgagee is in possession.*" The bar of the right of redemption by lapse of time is removed by anything which shows the mortgage as still continuing, such as by the rendering of an account,*"^' the assign- ment of the mortgage,*''^ recitals by the mortgagee in a deed or will,*"^' or by proceedings to foreclose.*" SAME— FORM OF DISCHARGE. 137. The formal discharge of a mortgage may be by: (a) A reconveyance. (b) An entry of satisfaction on the record. It has been seen that, in the states where the lien theory of mort- gages prevails, the mortgage is discharged merely by performance, but the mortgage still remains a cloud upon the mortgagor's title, so that some formal discharge is necessary. The discharge of a mortgage may take the form of a reconveyance,*®" as by a quit- claim deed from the mortgagee to the mortgagor.*'^ It is gener- ics Green v. Cross, 45 N. H. 574; King v. Melghen, 20 Minn. 264 (GiL 237); Koch V. Brlggs, 14 Gal. 256. 4 54 Simmons v. Ballard, 102 N. C. 105, 9 S. E. 495; McPherson v. Hay ward, 81 Me. 329, 17 Atl. 164; Frisbee v. Frisbee, 86 Me. 444, 29 Atl. 1115. *5o Maurhoffer v. Mittnacht, 12 Misc. Rep. 585, 34 N. Y. Supp. 439; Bird v. Keller, 77 Me. 270. And see Frink t. Le Roy, 49 CaL 314; Anding v, Davis, 88 Miss. 574. *66 Edsell V. Buchanan, 2 Ves. Jr. 83. 4 57 Borst V. Boyd, 3 Sandf. Cb. (N. Y.) 501. 4B8 Hansard v. Hardy, 18 Ves. 455. 4B0 Calkins v. Calkins, 3 Barb. (N. Y.) 305; Robinson v. Fife, 3 Ohio St. 55L 48 1 Jones, Mortg. (5th Ed.) § 972; Mutual Building & Loan Ass'n v. Wyeth (Ala.) 17 South. 45. 461 Donlin v. Bradley, 119 IlL 412, 10 N. E. 11; Woodbury v. Aikin. 13 111. 639; Barnstable Sav. Bank v. Ban-ett, 122 Mass. 172. But see Weldon v. Tollman, 15 C. C. A. 138, 67 Fed. 986. As to what is a quitclaim deed, see post, p, 412. §§ 138-139) FORECLOSURE. 239 ally provided by statute that a mortgage may be discharged by putting on record a satisfaction; that is, a certificate by the mort- gagee that the mortgage has been satisfied. In many states an en- try of satisfaction on the margin of the record of the mortgage is sufficient.*" Discharge of a mortgage may be compelled by a bill in equity,*®' but in many states a penalty is provided by statute, which the mortgagor may collect of the owner of the mortgage for failure to enter satisfaction of record-*'* FORECLOSURE. 138. Foreclosure is the proceeding by which the mort- gaged premises are applied to the payment of the mortgage debt, and the right of redemption barred. 139. Foreclosure will be treated under the following heads: (a) When the right to foreclose accrues (p. 239). (b) When the right to foreclose is barred (p. 240). (c) Decree for deficiency (p. 241). (d) Personal remedies (p. 241), (e) Receivers (p. 241). (f) Kinds of foreclosure (p. 242). When the Right to Foreclose Accrues. By the early common law, a mortgagee's Interest became abso- lute by breach of the condition in the defeasance; but, after the right to an equity of redemption becamie established,*" some pro- ceeding had to be taken before the mortgagee could make the land available for the satisfaction of the mortgage debt 468 1 stim. Am. St. Law, § 1905. 463 Remington Paper Co. v. O'Dougherty, 81 N. Y. 474. 48*1 stim. Am. St Law, § 1002; Crawford v. Simon, 159 Pa. St. 585, 28 AtL 491; Spaulding v. Sones (Ind. App.) 39 N. E. 526; Jones v. Trust Co. (S. D.) G3 N. W. 553; Walker v. English (Ala.) 17 South. 715. There are in some states similar provisions as to the entry of ci'edits. Loeb v. Huddleston (AJa.) 16 South. 714. 46 B See ante, p. 183. "240 EaiATES AS TO QUALITY MORTGAGES. (Cll. 9 The right to enforce a mortgage exists as soon as there is a breach by nonpayment at the time fixed, or by failure of perform- ance of the condition of the mortgage, whatever it may be.""» But a surety or indorser of the mortgage note cannot foreclose a mort- giige given to indemnify him, until he has actually paid the note.**^' When, however, the condition of the mortgage is to save hai-mless, foreclosure proceedings may be begun on the failui*e of the mort- gagor to pay the note when due.*®* When the Bight to Foreclose is Barred. The courts have applied the statute ,of limitations, by analogy, to proceedings for the foreclosure of mortgages.*** And in some states there are special statutory provisions on the subject.*''" The right to foreclose is never barred by lapse of time, unless the mortgagor has been in possession without the pa^-ment of principal or inter- ^»st.*" Such a bar to foreclosure may be waived by recognition of the mortgage as still existing.* ^^ Discharge of the debt by the statute of lunitations does not discharge the mortgage lien,*" ex- cept in a few states.*^* A decree for deficiency cannot be had in a foreclosure suit after the debt is barred,*" nor can an equitable lien for purchase money be enforced after the debt itself is bar- *66 Harding v. Manufacturing Co., 34 Conn. 458; Trayser v. Trustees of As- bury University, 39 Ind. 556; Gladwyn v. Hitchman, 2 Vern. 135. 467 Burt V. Gamble, 98 Mich. 402, 57 N. W. 2G1; Lewis v. Richey, 5 Ind. 152; Francis v. Porter, 7 Ind. 213; Dye v. Mann, 10 Mich. 291. Cf. Kramer v. Bank, 15 Ohio, 253. 48 8 Thurston v. Prentiss, 1 Mich. 193. 46 Ray V. Pearce, 84 N. C. 485; Cleveland Ins. Co. v. Reed, 1 Biss. 180, Fed. Cas. No. 2,889. 4T0 See 1 Stim. Am. St. Law, § 1928; 2 Jones, Mortg. (5th Ed.) § 1193. And see In re Tarbell, 160 Mass. 407, 36 N. E. 55. 4T1 Locke V. Caldwell, 91 111. 417; Chouteau's Ex'r v. Burlando, 20 Mo. 482. 47 2 Schifferstein v. Allison, 123 111. 662, 15 N. E. 275; Blair v. Carpenter, 75 Mich. 167, 42 N. W. 790; Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130. 47 8 Thayer v. Mann, 19 Pick. (Mass.) 535; Michigan Ins. Co. v. Brown, 11 Mich. 265; Mott v. Maris (Tex. Civ. App.) 29 S. W. 825. 474 Pollock V. Maison, 41 lU. 516; Duty v. Graham, 12 Tex. 427; City of Ft. Scott V. Schulenberg, 22 Kan. 648; Lord v. Morris, 18 Cal. 4S2. 47 6 Hulbert v. Clark, 57 Hun, 658, 11 N. Y. Supp. 417; Slingerland v, Sherer, AA Minn. 422, 49 N. W. 237. §§ 138-139) FOBECL08URE. 241 red-*^' The statnte begins to run from the time the condition Ifi broken.* ^^ Decree for Deficiency. In almost all the states, and in the federal courts, a decree for a deficiency of the mortgage debt may be rendered in the foreclo- sure suit.*^® And for this purpose, in most states, third persons liable for the debt may be joined as defendants.*" But such a judg- ment cannot be rendered against one who has not been made a party.**" When the mortgagor or principal debtor is dead, no judg- ment for the deficiency can be rendered against his personal rep- resentative. The deficiency must be proved against his estate.*'^ Personal Remedies — Recewen, The proceedings for enforcing a mortgage, and the personal rem- edies against the debtor, are concurrent,*'^ But, in most states where judgment for the deficiency may be given on foreclosure, a personal action for the debt cannot be maintained against the debtor while foreclosure proceedings are pending,*" and in some states 4Te Borst v. Corey, 15 N. Y. 505; Llttlejohn v. Gordon, 32 Miss. 235. 47 7 The mortgagor, or the one holding under him, being In i)os®essdon. Nevitt V. BacKm. 32 Miss. 212. See Coyle v. Wilkins, 57 Ala. 108. 47 8 Grand Island Savings & Loan Ass'n v. Moore, 40 Neb. 686, 59 N. W. 115; Flentham r. Steward, 45 Neb. 640, 63 N. W. 924; Shumway v. Orchard (Wash.) 40 Pac. 634. To authorize such a judgment against a grantee, he must have assumed the mortgage. Blass v. Terry, 87 Hun, 563, 34 N. Y. Supp. 475; Williams v. Maftzger, 103 Cal. 438, 37 Pac. 411; Green v. Hall, 45 Neb. 89. 63 N. W. 119. Cf. Farmers' Loan & Trust Co. t. Grape Creek Coal Co., 13 C. C. A. 87, 65 Fed. 717. *79 Palmeter v. Carey, 63 Wis. 426, 21 N. W. 793, and 23 N. W. 586; 2 Jones, Mortg. (5th Ed.) § 1710. But not In the absence of a statute permitting it Id. But see Hilton v. Bank, 26 Fed. 202. 4 80 Williams v. Follett, 17 Colo. 51, 28 Pac. 330. Such as a nonresident who has not appeared. Schwinger v. Hlckok, 53 N. Y. 280 (a mortgagor); Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102. 481 Leonard v. Morris, 9 Paige (N. Y.) 90; Pechaud v. Rlnquet, 21 CaL 76. And see Mutual Ben. Life Ins. Co. v. Howell, 32 N. J. Eq. 146; Null v. Jones, 5 Neb. 500. 483 Rothschild V. Railway Co., 84 Hun, 103, 32 N. Y. Supp. 37; Jackson v. Hull, 10 Johns. (N. Y.) 481; Hughes v. Edwards, 9 Wheat. 489; Torrey v. Cook, 116 Mass. 163. But see Felton v. West, 102 Cal. 266, 36 Pac. 676. 48 8 Holmes v. Railway Co. (N. J. Sup.) 29 Atl. 419; Hargreaves v. Men- REAL PROP. — 16 242 ESTATES AS TO QUALITY MORTGAGES. (Ch. S such a proceeding cannot be maintained while foreclosure is pend- ing without consent of the court.*'* After foreclosure sale the creditor may sue on the mortgage debt for any deficiency which may remain unsatisfied."" As an auxiliary remedy, the mortgagee may obtain the appointment of a receiver to take charge of the mortgaged premises whenever the mortgage is insuflQcient and the mortgagor is insolvent,**® and in some cases when the mortgagor is impairing the security by committing waste.*^^ And the mortgagor may secure the appointment of a receiver when the mortgagee in possession is insolvent, and is committing waste.*" SAME— KINDS OF FORECLOSURE. 140. The principal forms of foreclosure employed in the several states are: (a) By entry and possession (p. 243). (b) By -writ of entry (p. 244). (c) By an equitable proceeding, under -w^liich there may be (1) A strict foreclosure, or (2) A decree of sale (p. 248). (d) By a poTver of sale in the mortgage or deed of trust (p. 248). There is great variety in the modes of foreclosure in use in the several states, and but little uniformity in detail in the states where the same method is used. Jurisdiction to foreclose mortgages was ken, 45 Neb. 668, 63 N. W. 951; Powell v. Patison, 100 Cal. 236, 34 Pac. 677; Winters v. Mining Co., 57 Fed. 287. 4 84 In re Moore, 81 Hun, 389, 31 N. Y. Supp. 110; Meehan v. Bank, 44 Neb. 213, 62 N. W. 490. ♦ 88 Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 880; Lansing v. Goelet, 9 Cow. (N. Y.) 346; Hunt v. Stiles, 10 N. H. 466. But see Bassett v. Mason, 18 Conn. 131. 48« Rider v. Bagley, 84 N. Y. 461; Douglass v. CUne, 12 Bush (Ky.) 608; Ugtlon V. Chalfant, 32 W. Va. 559, 9 S. E. 879. *87 Cortleyeu v. Hathaway, 11 N. J. Eq. 39; Stockman v. Wallis, 80 N. J. Eq. 449. 48 8 2 Jones, Mortg. (5th Ed.) § 1517. And see Boston & P. II. Corp. v. New York & N. E. II. Co., 12 R. I. 220. § 140) KINDS OP FORECLOSURE. 243 originally in courts of equity, and this jurisdiction is very gener- ally retained.**' In a number of states the subject is fully coverod by statutory provisions,*'** while in others the proceedings are left to the inherent powers of the court. Equitable mortgages are fore- closed in the same way as mortgages in the usual forrn.*'^ Foreclosure hy Entry and Possession. In some of the New England states,* '^ foreclosure is effected by an entry on the mortgaged premises, and the holding possession for a limited time, after which all right of redemption is barred.*'^ After the expiration of this time the mortgagee takes an absolute estate, and becomes entitled to all the rents and profits. The entry must be peaceable, and in the presence of two witnesses, who are to make a certificate of the fact, and the certificate is to be re- corded. But a certificate of the mortgagor who consents to the en- try, if duly recorded, has the same effect.*"^ An entry on part of the land is good,*''^ and, when several parcels are covered by the same mortgage, an entry on one is sufficient.*®^ Possession under the entry may be constructive.*^* Although the estate of the mort- gagee becomes absolute by the failure of the mortgagor to redeem within the time allowed, this effect may be waived by the acceptance of payment after the time for redemption has passed.*'' The rights acquired by the entry may be assigned before the time for redemp- tion has expired.'*^" Foreclosure by this method, when complete, 48»2 Jones, Mortg. (5th Ed.) § 1443. 49 1 stim. Am. St Law, art 192; 2 Jones, Mortg. (5th Ed.) c. 30. 481 Sprague v. Ckxihran, 144 N. Y. 104, 38 N. E. 1000. 492 These are Maine, New Hampshire, Massachusetts, and Rhode Island. 493 This Is three years In all the states except New Hampshire, where only one year is allowed for redemption. 2 Jones, Mortg. (5th Ed.) § 1239; 1 Stlm. Am. St Law, § 1921. 49 6 1 Stim. Am. St Law, § 1921; 2 Jones, Mortg. (5th Ed.) §§ 1259, 1261. 496 Lennon v. Porter, 5 Gray (Mass.) 318; Colby v. Poor, 15 N. H. 198. But see Spring v. Haines, 21 Me. 126. 497 Bennett v. Cooiant 10 Cush. (Mass.) 163; Green v. Pettingill, 47 N. H. 875; Shapley v. Rangeley, 1 Woodb. & M. 213, Fed. Gas. No. 12,707. 49 8 Ellis V. Drake, 8 Allen (Mass.) 161; Fletcher v. Gary, 103 Mass. 475; Deming v. Comings, 11 N. H. 474. 499 Joslln V. Wyman, 9 Gray (Mass.) 63; McNeU v. Call, 19 N. H. 403; Chase V. McLellan, 49 Me. 375. BOO Deming v. Comings, 11 N. H. 474. 244 ESTATES AS TO QUALITY MORTQAQES. (.Ch. 9 operates as a discharge of the mortgage debt, to the amount of the value of the land."^ Foreclosure J/y Writ of Entry. In the same states a mortgage may also be foreclosed by a writ of entry.'"* The proceeding is essentially the same as that by en- try and possession, except a writ of entry is brought to secure the possession. This must always be the method where a peaceable entry is impossible. A legal interest in the land is necessary to sustain the action, and the writ must be brought against the tenant of the freehold.*"^ But the mortgagor may always be joined as de- fendant, though he has assigned all his interest.""* If the plaintiff is successful, a conditional judgment is rendered, — ^that, unless defend- ant pays the amount due within two months, the plaintiff shall have possession ; and this possession, when acquired, has the same effect as possession acquired by peaceable entry, — that is, the mortgagor has still three years within which to redeem.***' Foreclosure in Equity — Parties Plaintiff. As before stated, the most usual method of foreclosure is by a proceeding in equity. In such an action the rights of all parties in the mortgaged premises are to be determined. Therefore all per- sons interested in the mortgage debt should join as plaintiffs. "^"^ However, a mortgagee who has assigned all his interest is not a proper party plaintiff,''*'^ unless the assignment was only for secur- ftoi Smith V. Packard, 19 N. H. 575. And see Ray v. Scripture (N. H.) 29 Atl. 454. BO a 2 Jones, Mortg. (5th Ed.) § 1276. In Rhode Island possession is ob- tained by an action of ejectment Id, § 1279. B03 Somes V. Skinner, 16 Mass. 348; Wheelwright v. Freeman, 12 Mote. (Mass.) 154; Young v. Miller, 6 Gray (Mass.) 152; Johnson v. Brown, 31 N. H. 405. 804 Straw T. Greene, 14 Allen (Mass.) 206; Hunt v. Hunt, 17 Pick. (Mass.) 118. BOB 2 Jones, Mortg. (5th Ed.) § 1306. Except In New Hampshire, where it is one year. B06 Jiiangels v. Brewing Co., 53 Fed. 513; Pogue v. Clark, 25 111. 351; Shirkey v. Hanna, 8 Blackf. (Ind.) 403. BOT Cutler V. Clementson, 67 Fed. 409; Whitney v. McKinney, 2 Johns. Ch. (N. Y.) 144; McGuffey v. Flnley, 20 Ohio, 474; Garrett v. Puckett, 15 Ind. 485. But see Saenger v. Nightingale, 48 Fed. 708. § 1 40) KINDS OF FORECLOSURE. 246 j^y B0 8 ^jj assignee of the mortgage, to whom the bond or note se- sured thereby has not been transferred, cannot foreclose the mort- gage/ °» But, in states where an assignment of the note carries the mortgage with it, an assignee of the note without the mortgage may bring foreclosure without joining the mortgagee with him/^° When several notes are secured by the same mortgage, the holder of one note can file a bill to foreclose, making the holders of the other notes defendants.'" A trustee mav foreclose in his own name with- out joining the beneficiaries, when their number is very large."* But a beneficiary who seeks to foreclose must always join his trus- tee."' On the death of the mortgagee, his personal representative is the proper party to bring foreclosure."* Mortgages given to per- sons in their oflicial capacity may be foreclosed by their successors in office."^" Sarne — Parties Defendant. Of parties defendant there are two kinds, — necessary and proper parties."^ ^* But the distinction is not of much importance, because all who are proper parties should be joined as defendants, 60 8 Kittle y. Van Dyck, 1 Sandf. Cb. (N. T.) 76; Cerf v. Ashley, 68 Cal. 419,. 9 Pac. 658. Or where he has guarantied payment. Burnett v. Hoffman.. 40 Neb. 569. 58 N. W. 1134. 60 9 Cooper v. Newland, 17 Abb. Prac. (N. Y.) 342; Merritt v. Bartholick, 4'* Barb. (N. Y.) 253. 510 Briggs V. Hannowald, 35 Mich. 474; Gower v. Howe, 20 Ind. 396; Swett V. Stark, 31 Fed. 858. 611 Pettibone v. Edwards, 15 Wis. 95; Myers v. Wright, 33 111. 284; Godall V. Mopley, 45 Ind. 355. That the holders of the notes cannot be joined as plaintiffs, see Swenson v. Plow Co., 14 Kan. 387. Contra, Pogue v. Clark, 25 111. 351. Joint mortgagees may join, though the debts secured are several. Shirkey v. Hanna, 3 Blackf. (Ind.) 403. 612 Chicago & G. W. Railroad Land Co. v. Peck, 112 111. 408; Lambertville Nat. Bank v. McCready Bag & Paper Co. (N. J. Ch.) 15 Atl. 388. 618 Martin v. McReynolds, 6 Mich. 70; Hambrick v. Russell, 86 Ala. 199, 6 South. 298. But see Ettlinger v. Carpet Co., 142 N. Y. 189, 36 N. B. 1055. 61* Dayton v. Dayton, 7 111. App, 136. 616 Iglehart v. Bierce, 36 111. 133. 618 See Tyler v. Hamilton, 62 Fed. 187; Galford v. GlUett, 55 111. App. 576; Pettingili v. Hubbell (N. J. Ch.) 32 AtL 76; London, Paris & American Bank V. Smith, 101 CaL 415, 35 Pac. 1027. 246 ESTATES AS TO QUALITY MORTGAGES. (Ch. 9 in order that l Tex. 635; Averltt v. Elliot, 109 N. C. 560, 13 S. E. 785. B«* Lass V. Sternberg, 50 Mo. 124. Cf. Stephen v. BeaU, 22 Wall. 329; Felton V. Le Breton. 92 Oal. 457, 28 Pac. 490. 88 B Easton v. Bank, 127 U. S. 532, 8 Sup. Ct. 1297. B8« MaxweU v. Newton, 65 Wis. 261, 27 N. W. 31; Ramsey v. Merrlam, 6 Minn. 168 (GIL 104). i 141) EQUITABLE ESTATES. 251 CHAPTER X. EQUITABLE ESTATES. 141. Legal and Equitable Estates. 142. Use or Trust Defined. 143-144. The Statute of Uses. 145. When the Statute does not Operate. 146. Classification of Trusts. 147. Express Trusts. 148-149. Executed and Executory Trusts. 150-151. Creation of Express Trusts. 152. Implied Trusts. 15a. Resulting Trusts. 154. Constructive Trusts. 155-1515. Incidents of Equitable Estates. 157-158. Charitable Trusts. LEGAL AND EQUITABLE ESTATES. 141. The various kinds of estates as to quantity and qual- ity may be either (a) Legal, or (b) Eqiiitable. We now come to a new principle upon which to classify estates, namely, their leg:al or equitable character. So far our attention has been occupied with legal interests, though equitable estates have been mentioned in treating of curtesy,* dower,* homestead,^ and mortgages.* It will now be seen that the different estates, as to quantity and quality, may any of them be held by a title which is recognized only in courts of equity.' And some estates are possible under equitable limitations which cannot be created at common law; these are estates which defeat a preceding estate, or spring into existence without a preceding freehold to support them.' Estates 1 Ante, p. 73. « Ante, p. 83. » Ante, p. 112. * Ante, p. ISO. • On the whole subject of this chapter, see Fetter, Eq. c 8. • See ante, p. 177, note 39, and post, pp. 284, 299, 252 EQUITABLE ESTATES. (Ch. 10 which are recognized by the common law are called 'legal estates." Estates which owe their existence to courts of equity are called "equitable estates." USE OR TRUST DEFINED. 142. A use or trust is an equitable right to the beneficial enjoyment of an estate, the legal title to -which is held by another person. At common law there were many restraints on the alienation of real property which impeded its full enjoyment. Estates were sub- ject to escheat and forfeiture for treason. Statutes of mortmain had been passed, which prevented lands from being conveyed to re- ligious corporations, and other restraints existed which prevented land becoming an article of commerce. In order that these burdens might be avoided, the practice of conveying lands to uses was intro- duced; that is, land would be conveyed to a person in whom the grantor had confidence, for the use of the grantor or another, and would by such grantee be disposed of or used according to the wish- es of the grantor. The clergy were probably the first to employ this method of transferring and holding land. At first there were no means by which the grantor could compel the execution of the con- fidence thus imposed, but later the chancellors, who were ecclesi- astics, gave a subpcena in chancery by which such confidences were enforced.^ Although in courts of law only the legal estate and title were recognized, yet in equity the person entitled to the beneficial in- terest was, for all purposes, recognized as owner.' In this way a dual system of ownership arose, by the legal title to the land being held by one person, and all of the beneficial rights arising out of it belonging to another. These equitable interests were held free from most of the burdens attached to common-law estates. For ex- ample, they could be conveyed without a feoffment, or could be dis- posed of by will, which was not true of a legal estate.® T See Dig. Hist Real Prop. (4th Ed.) 313; Anon., Y. B. 14 Hen. VIII. 4 pi. 5. « 2 Washb. Real Prop. (5th Ed.) 409. » 2 Pol. & M. Hist Eng. Law, 226; Burgess v. Wheate, 1 W. Bl. 123; Chud« leigh's Case, 1 Ck>ke, 120a, |§ 143-144) THE STATUTE OF USES. 253 THE STATUTE OF USES. 143. The statute of uses enacted that whenever any per- son should be seised of any lands to the use, confi- dence, or trust of another, the latter should be deemed in lawful seisin of a legal estate of a like quantity and quality as he had in the use. 144, The statute of uses is in force in many of the states of the Union (p. 254). Although many convenient purposes were served by the practice of conveying lands to uses, on the other hand it had a tendency to make titles uncertain, and was very unpopular with the great land- owners of England, because they were deprived of many of the in- cidents attached to feudal estates.^** A number of statutes were passed, attempting to prevent these results, but they proved inef- fectual. Finally the famous statute of uses^^ was enacted, which provided "that where any person or persons stand, or be seized, or at any time hereafter shall happen to be seized of and in any honours, castles, manors, lands, tenements, rents, services, reversions, re- mainders, or other hereditaments to the use, confidence, or trust of any other person or persons or of any body politick by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agree- ment, will or otherwise, by any manner means whatsoever it be, that in every such case, all and every such person and persons ♦ * * shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors," etc., "* * * to all intents, construc- tions and purposes in the law, of and in such like estates as they had or shall have and in use, trust or confidence of or in the same." ^^ The statute contained other provisions, all intended to produce the effect that, whenever a person was entitled to the beneficial interest 10 The Inconveniences arising from lands being conveyed to uses are recited In the preamble of the statute of uses. See, also, Lloyd v. Spillet, 2 Atk. 148. 11 27 Hen. VIII. c. 10. 12 Broughton v. Langley, 2 Salk. 679; Lord Altiham v. Earl of Anglesey, Gilb. Cas. 16. The possession passes immediately. Anon., Cro. EIlz. 46. Heelis v. Blaln, 18 C. B. (N. S.) 90. But see Orme's Case, L. R. 8 C. P. 281. 254 EQUITABLE ESTATES. (Ch. 10 in land, the legal title should be vested in him. An exception waa made, however, so that wives on whom a jointure had been settled would not be entitled to dower in the equitable estates of their hus- bands which should be executed by the statute.^' The statute of uses had a very important effect on conveyancing, because, as we shall see later, ^* it became possible to convey the legal title to lands by methods unknown to the common law.^* Statute of Uses m the United States. The statute of uses has been re-enacted in a nimiber of our states, either in terms or in substance, and in some others it is held to exist as part of the common law.^' Other states, however, following the lead of New York, have abolished all uses and trusts, except in cer- tain specified cases permitted by the statutes. ^^ These are: (1) Trusts implied by law, for the prevention of fraud; (2) active trusts, where the trustee is clothed with some actual power of disposition or management, w^hich cannot be properly exercised without giving him the legal estate and actual possession. SAME— WHEN THE STATUTE DOES NOT OPERATK 145. The statute of uses was held not to apply to, — \j (a) Chattel interests. yCb) Future uses. v/(c) Active uses. ■^ (d) Estates for the separate use of married women. V(e) A use upon a use. (f ) Trusts created by operation of law. According to the wording of the statute of uses, it was held that three things were necessary for its operation: There must be (1) a 18 27 Hen. VIII. c. 10, § 6. 14 Post, p. 409. 16 Lutwich v. Milton, Cro. Jac. 604; Roe v. Tranmer, 2 Wlls. 75. See, also, Sammes' Case, 13 Coke, 54. 16 2 Wa&hb. Real Prop. (5th Ed.) p. 465. The statute of uses Is not In force In Ohio. Gray, Perp. p. 45, § 68, 17 1 Stlm. Am. St. Law, § 1703. For trusts not within the statute, see Coweu V. RinaJdo, 82 Hun, 479, 31 N. Y. Supp. 554. § 145) WHEN THE STATUTE OF OSES DOES NOT OPERATE. 255 person seised to a use; (2) a cestui que use in esse; (3) a use in esse." The use, however, might be either in possession or in expectancy.^* The cases in which the statute of uses was held not to operate to vest the legal title in the beneficiary, enumerated in the black-letter text, rendered the statute practically inoperative. It was held that chattel interests were not within the statute, because there could be no seisin of such interests, and the provision of the statute was "that where any person or persons stand or be seised." ^^ Nor did the statute operate upon future uses,^^ but such uses would be executed by the statute as soon as they became vested.'" A distinction was made by the courts between active and passive uses; that is, where the trustee had no duties to perform, but merely held the legal title for the benefit of the cestui que use, the statute was permitted to operate.^ ^ But when anything was to be done by the trustee in rela- tion to the trust property, such as collecting the rents and profits, or selling the property, the statute did not operate, because the trustee could not perform these duties unless he held the title to the land.^* The former was called a passive, and the latter an active, use. Yery slight duties imposed on the trustee were sufficient to prevent the operation of the statute. '^'^ Lands conveyed to the separate use of a married woman are not within the scope of the statute, because, if the legal title should vest in her, her husband would become entitled to the control of the estate, thus producing an effect contrary to the intention with which such uses are created.-^ Under statutes 18 Wltham V. Brooner, 63 111. 344; Brent's Case, 2 Leon. 14. 19 2 Washb. Real Prop. (5th Ed.) 434. 2 Merrill v. Brown, 12 Pick. (Mass.) 216; Galliers v. Moss, 9 Barn. & C. 267; Hopliins v. Hopliins, 1 Atk. 581. 21 Wyman v. Brown, 50 Me. 139; Proprietors of Town of Shapleigh v. Pils- bury, 1 Me. 271; Savage v. Lee, 90 N. C. 320. 2 2 See Chudleigh's Case, 1 Coke, 120a, and cases In note 21 supra. 28 Posey v. Cook, 1 Hill (S. C.) 413; Ware v. Richardson, 3 Md. 505; Sul- livan V. Chambers, 18 R. I. 799, 31 Atl. 167. 2* Fay V. Taft, 12 Cush. (Mass.) 448; Barnett's Appeal, 46 Pa. St. 392; Gott V. Cook, 7 Paige (N. Y.) 521; Morton v. Barrett, 22 Me. 257; Posey v. Cook, 1 Hill (S. C.) 413; Schley v. Lyon, 6 Ga. 530. 2 Morton v. Barrett, 22 Me. 257. As soon as the active duties of the trustee are performed, the statute vests the legal estate In the cestui que trust. Feig- ner V. Hooper, SO Md. 262, 30 Atl. 911. «6 Steacy v. Rice, 27 Pa. St 75; PuUen v. RIanhard, 1 Whart. (Pa.) 514; 256 EQUITABLE ESTATES. (Ch. 10 which give a married woman the same right of disposition over her property as a feme sole, the reason for this rule would not obtain, and the legal estate would vest in her." And without such stat- utes, if a married woman conveyed her equitable estate, the statute would execute the legal title in her assignee.^* The most important ruling of the courts on the statute of uses, however, was in Tyrrell's Case,^''' about 20 years after the statute was passed, in which it was held that a use upon a use was not within the terms of the statute; that is, where an estate was conveyed to A. for the use of B. for the use of C. Before the enactment of the statute, under such a conveyance, the use to C. would be void. A use could not be engendered of a use, it was said. And after the statute it was held that the legal title would be executed in B., but that then the force of the statute would be exhausted, and B. would hold the estate for the benefit of C.«° In this way the necessity arose again for the protection of the beneficiary by the court of chancery. In other words, the courts of law treated the first use as executed by the statute, and the second as void. Such a construc- tion evidently defeated the intention of the grantor, and consequent- ly equity interposed, and gave effect to the second use. Therefore all that was necessary to avoid the effect of the statute was to add the words, "to the use of." ^^ The statute of uses does not operate upon beneficial interests created by operation of law." The equita- ble estates upon which the statute of uses was held not to operate are called "trusts," ** and their incidents are the same as those of Bush's Appeal, 33 Pa, St 85; Nevll v. Saunders, 1 Vem. 415; Harton v. Har- ton, 7 Term R. 653. But see Ware v. Richardson, 3 Md. 504. 2T Bratton v. Massey, 15 S. C. 277; Sutton v. Aikea, 62 Ga. 733; Bayer v. Cockrill. 3 Kan. 282. 2 8 Leaycraft v. Hedden, 4 N. J. Eq. 512; Imlay v. Huntington^ 20 Oonn, 146; Cooke V. Husbands, 11 Md. 492. 2 9 Dyer, 155a. 80 And see Doe v. Passingham, 6 Barn. & C. 305. But see Peacock v. East- land, L. R. 10 Eq. 17. 31 Croxall V. Shererd, 5 Wall. 2G8; Jackson v. Gary, 16 Johns, (N. Y.) 302; Jackson v. Myers, 3 Johns. (N. Y.) 388; Guest v. Farley, 19 Mo. 147. This rule has been abolished by statute in Georgia, and the use Is executed to the last beneficiary. See 1 Stim. Am. St Law, § 1701; Code, Ga, 1882, § 2315. • « See post p. 265. «8 Before the statute of uses the term "trust" was applied to equitable es- § 146) CLASSIFICATION OF TRUSTS. 257 nses before the enactment of the statute, and the rights and dnties of the owners of the two classes of estates will be treated of togeth- er in this chapter. CLASSIFICATION OF TBUSTS. 146. Trusts, according to the method of their creation, are divided into (a) Express trusts (p. 258). (b) Implied trusts (p. 264). A great deal of confusion exists in the books and cases on the subject of the classification of trusts. This has arisen principally from a loose and incorrect use of the word "implied." Some courts, as well as text writers, use the words ''implied," "resulting," and "constructive," indifferently, while in fact both resulting and con- structive trusts are implied trusts; that is, they are implied or cre- ated by operation of law. On the other hand, all trusts which can properly be called implied are either constructive or resulting. The term "implied," however, has often been used to designate certain express trusts, in the creation of which the language of the settlor is obscure, and his intention has to be inferred by the courts from the words used. These trusts can in no proper sense be tei-med im- plied, because the only question that arises is one of construction. It is sufficient to call attention at this point to the confusion which has arisen from the improper use of the words. The definitions and distinctions between the different kinds of trusts will appear as they are treated of separately. In examining the cases ft must be borne in mind that the language of the courts in many cases cannot be re- lied upon in determining the kind of trust in question. tates created for a limited period, while those of indefinite duration were called "uses." 2 Washb. Real Prop. (5th Ed.) 414. BSAL PBOP. —17 258 BQUITABLE ESTATES. (CSl. 10 EXPRESS TRUSTS. 147. Express trusts are those which are created by act of the parties. They are either (a) Executed, or (b) Executory. SAME— EXECUTED AND EXECUTORY TRUSTS. 148. An executed trust is one in ■which the terms and limitations are dejOnitely and completely declared by the instrument creating it. 149. An executory trust is one in which the limitations are not completely declared, but only an outline given, by w^hich the trustee is to declare the final limitations of the trust estates. Under an executed trust, the intention of the settlor must be taken from the instmment creating the trust,** while in the case of an executory trust the terms and limitations of the trust, as they are finally declared, are to be determined, not only by the words used, but by the circumstances surrounding the parties.'' A trust is executed when the instrument creating it contains all the terms of the trust, and is in its final form, — nothing remaining to be done but to carry out the terms as therein declared. But in an executory trust it is intended that there shall be a further and more definite declaration of the terms and limitations of the trust, and the instm- ment creating an executory trust is more in the nature of a mem- orandum containing directions according to which the trust is to be completely declared.'* 8* Wright V. Pearson, 1 Eden, 125; Austen v. Taylor, Id. 361; Jervoise v. Duke of Northumberland, 1 Jac & W. 559. 3 5 Austen v. Taylor, 1 ^Eden, 361; Neves v. Scott, 9 How. 196; Cushins v. Blake, 30 N. J. Eq. 6S9; Tallman v. Wood, 26 Wend. (N. Y.) 9. »• Wright V. Pearson, 1 Eden, 125; Jerroise v. D\ike of Northumberland, 1 Jac & W. 559. Executoiy trusts are closely applied to powers. See post, pu 3oa §§ 148-149) EXECUTED AND EXECUTORY TRUSTS. 259 Executory trusts are special or active trusts directing the trustee to settle or dispose of the land for the estates and interests required by the trust. They are so called because they have to be executed by a deed conveying the land for the estates and limitations intended, as distinguished from trusts directing the trustee to hold the prop- erty upon trusts then executed, in the sense of being then perfectly limited and defined. Executory trusts are fulfilled and discharged by the execution of a deed in conformity with the directions of the trust Executory trusts are here distinguished, as regards the lim- itation of estates, by admitting of an exceptional construction of the limitations expressed. They are often expressed in compendi- ous terms by way of instructions for the limitations directed to be made, without setting out the limitations at length, as by directing or agreeing that property shall be settled "in strict settlement," "en- tailed," settled "with usual and proper powers," or the like; in which cases the construction consists in developing the limitations in- volved in such expressions in the form best suited to carry out the general intention of the trust. And, even where an executory trust is expressed in technical terms of limitation, the terms are not nec- essarily construed with the same strictness as is applied to ordinary legal limitations; but, having regard to the directory character of the trust, the technical meaning is hdd subordinate to the general object required to be carried out.'^ The two principal classes of executory trusts are those arising under contracts for marriage settlements, and under trusts declared in wills. In the former the courts presume tliat the intention in creating the trust was to provide for the offspring of the maiTiage, and construe the terms accordingly; but in trusts arising under wills no such intention can be presumed.'' Most of the cases of exe- cutory trusts arise under limitations calling for a consideration of the rule in Shelley's Case, which will be considered in another place.'* 3 7 Tallman v. Wood, 26 Wend. (N. Y.) 9. McElroy y. McElroy, 113 Mass, 509; Cashing v. Blake, 30 N. J. Eq. 689; Wight v. Leigh, 15 Ves. 564, s8 Neves v. Scott, 9 How, 196; Gause v. Hale, 2 Ired, Eq. (N. C.) 241; Smith V. Maxwell, 1 HiU (S. C.) 101; Green v. fiumph, 2 HiU (S. C) 1; Carroll T. Eenich, 7 Smedes & M. (Miss.) 798. «» See post, p. 295. 260 KQDITABLK ESTATES, (Ch. 10 SAME— CREATION OF EXPRESS TBTTSTS. 160. An express tmst may be created by any lang^nage which shows an intention to create a trust, and "which snf&ciently designates the property, the ben- eficiary, and the terms of the trust. Under the statute of frauds, an express trust cannot be created by paroL 151. The parties to the creation of a trust are, — (a) The feoffor, or creator. (b) The feoffee, or trustee, who holds the legal title, (c) The cestui que trust, or beneficiary. The creation of an express trust is a mere matter of conveyan- cing. And being a conveyance, rather than a contract, no consider- ation is necessary to support an express trust.*" A mere contract to create a trust will not be enforced, in the absence of a considera- tion. Some cases, however, hold that such an agreement will be enforced in favor of a wife or child, though not for other relatives.** The presence or absence of consideration, however, plays an im- portant part, as will be seen when resulting trusts are consid- ered. For, if the legal title is conveyed to one who pays no con- sideration, a presumption may arise that such grantee was not in- tended to take the beneficial interest.** Any real property may be held in trust.*' The requirements as to 40 Bunn v. Wlnthrop, 1 Johns. Ch. (N. Y.) 329; Ownes v. Ownes, 23 N. J. Eq. 60; Massey v. Huntington, 118 UL 80, 7 N. E. 269; Branson v. Henry, 140 Ind. 455, 39 N- E. 256; Anon., Brooke, 89, But see Beeman v. Beeman, 88 Hun, 14, 34 N. Y. Supp. 484; HamUton v. Downer, 152 IlL G51, 38 N. E. 733. The instrameat of creation must be executed and delivered. Grovin v. De Miranda, 9 Misc. Rep, 684, 30 N. Y. Suj^. 550, *i llayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258; Bunn v. Winthrop, 1 Johns. Ch. (N. Y.) 329; Buford v. McKee, 1 Dana (Ky.) 107. *a See poet, p. 267. *3 L Perry, Tni«ts (4th Ed.) §§ 67-69; 2 Washb. Real Prop. (5th Ed.) p. 416. But a trust cannot be created in a mortgage, where it is only a lien, though there may be a trust in the mortgage debt. Merrill v. Brown, 12 Picli. (Mass,) 21& §§ 150-161) CREATION OF EXPRESS TRUSTS. 25 1 description of the property conveyed, the designation of the feoffee and of the cestui que trust, etc., are matters of conveyancing, and will be discussed in a subsequent chapter. Limitation of Trustee's Estate. In limiting the legal estate to a trustee, the strict requirements as to the use of technical words in conveying legal estates are re- laxed, and the trustee is held to take an estate sufficient to carry out the purposes of the trust.** For example, if the cestui que trust is given the beneficial interest iu fee, and only a life estate is given to the trustee, the latters estate will be enlarged to a fee, if it is . necessary to carry out the settlor's intention.*'* On the other hand, the estate of the trustee will be cut down to what is necessary to enable him to carry out the trust. In most cases this would be ac- complished by the statute of uses executing the legal estate in the beneficiary as soon as the trustee's active duties were completed.*^ Precatory Words. In the creation of an express trust, it is not necessary to use the words "use. confidence, or trust," or in fact any technical expres- sion.*^ It is sufficient if from the whole instrument an intention^ appears to create a trust.* ^ In fact, the intention of the settlor - may be shown by what are called "precatory words"; that is, by suchi expressions as "desire," "request," "entreat," "trust and confide." *^^' *♦ Neilson v. Lagow, 12 How. 98; Fisher v. Fields, 10 Johns. (N. Y.) 495; Gould V. Lamb, 11 Mete. (Mass.) 84; New hall v. Wheeler, 7 Mass. 189; Angell V. Rosenbury, 12 Mich. 241. But see CJooper v. Franklin, Cro. Jac. 400. *^ Newhall v. Wheeler, 7 Mass. 189. *6 Norton v. Norton, 2 Sandf. (N. Y.) 296; Bush's Appeal, 33 Pa. St. 85; Renziehausen v. Keyser, 48 Pa. St. 351. But see Lewis v. Rees, 3 Kay & J. 132. *7 Wright V. Douglass, 7 N. Y. 564; Raybold v. Ray bold, 20 Pa. St 308; Ready v. Kearsley, 14 Mich. 215; White v. Fitzgerald, 19 Wis. 480; Zuver v.' Lyons, 40 Iowa, 510. *8 Toms v. Williams, 41 Mich. 552, 2 N. W. 814; Taft v. Taft, 130 Mass. 461; McElroy v. McElroy, 113 Mass. 509; Kintner v. Jones, 122 Ind. 148, 23 N. E. 701. *» Warner v. Bates, 98 Mass. 274; Knox v. Knox, 59 Wis. 172, IS N. W. 155; Webster v. Morris, 66 Wis, 366, 28 N. W. 353; McRee v. Means, 34 AJa. 349; Erickson v. Willard, 1 N. H. 217; Collins v. CarUsle's Heirs, 7 B. Mon. (Ky.) 13; Bull V. Bull, 8 Conn, 47; Hunter v. Stembridge, 12 Ga, 192. But see,. 262 EQUITABLE ESTATES. (Ch. 10 No definite rule can be laid down as to when the use of such words will be suflQcient to create a trust, but it will depend in each case on the construction of the whole instrument, and the intention of the settlor appearing therefrom."" In limiting equitable estates, it is not necessary to use the same technical Avords as are required in the limitation of estates at common law. All that is necessary is suf- ficient words to show the intention."^ Statute of Fravda. At common law an express trust could be created by parol," but under the statute of frauds it must be evidenced in writing. ''^ But for this purpose any writing signed by the person against whom the trust is so to be enforced will be sufficient, if it show the existence of the tinist."* And if the statute of frauds is not set up, and the trust is admitted, it can be enforced, although created by parol, since no evidence of its existence is necessary in such case."' In some states for expressions held not to raise a trust, Hopkins v. Glunt, 111 Pa. St 287, 2 Atl. 1S3; Burt v. Herron's Ex'rs, 66 Pa. St 400; Bowlby v. Thunder, 105 Pa. St 173; Colton v. Colton, 10 Sawy. 325, 21 Fed. 5M; Sears v. Cunning- ham, 122 Mass. 538. 60 1 Perry, Trusts (4th Ed.) § 114. See cases cited In last note. Of this same nature are "trusts for maintenance." When property is given to a parent, or to one standing in that relation, and expressions as to support and edu- cation of the grantee's children are used, the propei-ty will be impressed with a trust, If It appears that such was the grantor's or testator's intention. Whit- ing V. Whiting, 4 Gray (Mass.) 240; Andrews v. President, etc., 3 Allen (Mass.) .313; Rittgers v. Rittgers, 56 Iowa, 218, 9 N. W. 188;. Babbitt v. Babbitt, 26 N. J. Eq. 44. But there will be no trrist if the expressions as to maintenance were used merely to show the motive. Rhett v. Mason's Ex'r, 18 Grat (Va.) 541. 01 Stanley v. Colt 5 Wall. 119; Neilson v. Lagow, 12 How. 98; Fisher v. Fields, 10 Johns. (N. Y.) 495; Welch v. Allen, 21 Wend. (N. Y.) 147; Gould V. Lamb, 11 Mete. (Mass.) 84; Newhall v. Wheeler, 7 Mass. 189; Angell y. Rosenbury, 12 Mich. 241; Meredith v. Joans, Cro. Car. 244; Egerton's Case, Cro. Jac. 525. 62 1 Perry, Trusts (4th Ed.) § 75. 68 29 Car. n. e. 3, § 7; Moore v. Horsley, 156 111. 36, 40 N. E. 823; C5allard V. Callard, Moore, 687; Movan v. Hays, 1 Johns. Ch. (N. Y.) 339; Sherley v. Sherley (Ky.) 31 S. W. 275; Acker v. Priest (Iowa) 61 N. W. 235. 64 steere v. Steere, 5 Johns. Ch. (N. Y.) 1; Barrell v. Joy, 16 Mass. 221; McClellan v. McClellan, 65 Me. 500; Dyer's Appeal, 107 Pa. St. 446. 66 Whiting V. Gould, 2 Wis. 552; Thornton v. Vaughan, 2 Scam. (111.) 219; Trustees of Schools y. Wright 12 111. 432; Woods y. Dille, 11 Ohio, 455. §§ 150-151) CREATION OF EXPRESS TRUSTS. 263 it is provided by statute that trusts must be created and declared in writing."*' When a trust is created by wiU, the same formalities in the execution of the will are required as for a valid devise of lands. '^ The statute of frauds applies to public or charitable trusts as well as to private." Parties. The person creating a use or trust is called the "feoffor." Any one owning land who has capacity to make a contract or a will can create a trust.*' For instance, a state ®° or a corporation, if the lat- ter is permitted by its charter, may be a feoffor.®^ The capacity of married women, infants, aliens, etc., to create trusts. Is the same as their capacity to deal with real property.'* Any one may be a trustee who is capable of taking the legal title to realty."* The United States and the states may, of course, be trus- tees, although they cannot be sued, without their consent, for the en- forcement of the trust.'* Corporations may hold lands as trustees, and many trust companies now do so." A married woman may be a trustee, and cannot plead her incapacity to deal with the title to »•! Stim. Am. St Law, § 1710; Whiting v. Gould, 2 Wis. 552; Bibb v. Hunter, 79 Ala. 351; Dunn v. Z willing (Iowa) 62 N. W. 746. But see Pinnock V. Clougb, 16 Yt. 508; Jenkins v. Eldiidge, 3 Story, 181, Fed. Cas. No. 7,266; McClellan v. McClellan, 65 Me. 500. 6T 1 Pen-y, Trusts (4th Ed.) §§ 90-94; Thayer v. Wellington, 9 Allen (Mass.) 283. 5 8 Thayer v. Wellington, 9 Allen (Mass.) 283. 6» 1 Perry, Trusts (4th Ed.) § 28. eo Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143; Buchanan T. Hamilton, 5 Ves. 722. 61 Dana v. Bank, 5 Watts & S. (Pa.) 223; Barry v. Exchange Co., 1 Sandf. Ch. (N. Y.) 2S0; Hopkins v. Turnpike Co., 4 Humph. (Team.) 403; State v. President, etc., of Bank of Maryland, 6 Gill & J. (Md.) 205. 62 See post, p. 381. 68 Commissioners of Sinking Fund v. Walker, 6 How. (Miss.) 143; 1 Perry, Trusts (4th Ed.) § 39. 64 1 PeiTy, Trusts (4th Ed.) § 41; McDonogh's Ex'rs v. Murdock, 15 How. 367; Shoemaker v. Commissioners, 36 Ind. 175. «6 Trustees of Phillips Academy v. King, 12 Mass. 546. So municipal cor- porations may be trustees. Vldal v. Girard's Ex'rs, 2 How. 127, 187. It waa formerly held that a corporation could not be a trustee, because the subpoena of the chancellor operates only upon the conscience of the trustee, and cor- porations were said to have no souls. 1 Perry, Trusts (4th Ed.) § 42. 264 EQUITABLS ESTATES. (Ch. 10 land when a trust is souf^ht to be enforced agaLnst her." The ap- pointment of a married woman as trustee, however, is often attended with many inconveniences, owing to her limited power of dealing with property. For similar reasons, an infant cannot act effect- ively as a trustee, though, of course, a trust may be enforced against liim, and his infancy will not furnish a means of defrauding his ben- eficiary.®^ An alien may act as a trastee in jurisdiction where he is permitted to hold realty, and where he is not he may act until "of- fice found," upon which the legal title would escheat to the state, but would still be held for the benefit of the cestui que trust. '^ A bankrupt or insolvent person may be a trustee,'^ and, if he became such before his insolvency, an assignment by him of his property for the benefit of creditors would not carry with it any right to the en- joyment of the property, unless the assignor had also some bene- ficial interest in it.'^" A feoffor may make himself a trustee.^ ^ Any one who has capacity to take the legal title to lauds may be a beneficiary.^' IMPLIED TRUSTS. 152. Implied trusts are those created by operation of la^w in order to do justice between the parties. They are either (a) Resulting trusts (p. 265), or (b) Constructive trusts (p. 269). Some of the cases which are treated as trusts are not properly called trusts. They are such only because the person wronged is given some of the remedies which a cestui que trust has.^^ As to «« Livingston v. Livingston, 2 Johns. Ch, (N. Y.) 537; Clarke T. Saxton, 1 Hill, Eq. (S. C.) 69; Berry v. Norris, 1 Duv. (Ky.) 302. 8 7 Jevon v. Bush, 1 Vera. 342. 88 1 Perry, Trusts (4th Ed.) § 55. 69 Sbryock v. Waggoner. 28 Pa. St. 430. 7 Carpenter v. Alaraell, 3 Bos. & P. 40; Kip v. Bank, 10 Johns. (N. T.) 63; Ontario Bank v. Mumford, 2 Barb. Ch. (N. Y.) 596. Ti Emery v. Chase, 5 Me. 232; Brewer v. Hardy, 22 Pick. (Mass.) 376; Hayes v. Kershow, 1 Sandf. Ch. (N. Y.) 258. T2 1 Perrj', Trusts (4th Ed.) § GO; Neilson v. Lagow, 12 How. 107. T8 1 Perry, Tioists (4th Ed.) § 106; 2 Pom. Eq. Jur. (2d Ed.) § 1058; Green- § 153) IMPLIED TRUSTS RESULT1^Q TRUSTS. 265- the division of implied trusts into resulting and constructive, a good deal of confusion exists; and, while the mere matter of classifica- tion may not "be attended with any important legal consequences, it seems well to make the distinction clear, and treat as constructive trusts only those into which an element of fraud enters.^* Trusts created by operation of law, as already stated, are not ex- ecuted by the statute of uses, nor are they within the statute of frauds; for. in the nature of things, they must be established by ev- idence outside of the instrument by which the legal title is trans- ferred.^* SAME— RESULTING TRUSTS. 153. Resulting trusts are those in -wrhich the court seeks to carry out the presumed intention of the parties. The principal classes of resulting trusts are: (a) Those -where the grantor disposes of only the legal title (p. 266). (b) Those -where the object of the trust fails in -whole or in part (p. 267). (c) Those -where the conveyance is taken in the name of another than the one paying the consideration (p. 267). The ruling element in a resulting trust is the probable intention of the parties.''® In every case in which a resulting trust arises, wood's Appeal, 92 Pa. St 181; Lathrop v. Bampton, 81 Cal. 17; Hammond v. Pennock, 61 N. Y. 145; Johnson v. Johnson, 51 Ohio, 44G, 38 N. E. 61. 74 2 Pom. Eq. Jur. (2d Ed.) § 1053; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447; Dewey v. Moyer, 72 N. Y. 70; Huxley v. Rice, 40 Mich. 73; Kayser V. Maugham, 8 Ck>lo. 232, 6 Pac. 803. 7 6 Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803; Bohm v. Bohm, 9 Colo. 100, 10 Pac. 790; Kennedy v. Kennedy, 2 Ala. 571; Connolly v. Keating, 102 Mich. 1, 00 N. W. 289; Cooksey v. Bryan, 2 App. D. C. 557; Rozell v. Vansyckle, 11 Wash. 79, 39 Pac. 270. 7 6 2 Pom. Eq. Jur. (2d Ed.) § 1031. Fraud is not a necessary element Tal- bott V. Barber, 11 Ind. App. 1, 38 N. E. 487. And see Thompson v. Marley, 102 Mich. 476, 60 N. W. 976w 266 EQUITABLE ESTATES. (<^h. 10 there is the transfer of the legal title to land to one who is not in- tended to hold the beneficial interest, or at least not all of it." Legal Title Only Conveyed. In the first class of resulting trusts mentioned in the black-letter text, there is a transfer of the legal title only, without any intention to convey the beneficial interest.^ ^ If a man transfers the legal title to land to one who is not entitled to the beneficial interest, the equitable title remains in the grantor, and the grantee is a mere trustee for him.''* Such cases were frequent even before the statute of uses, and were called "resulting uses." •" The reason for the rule is that a court of equity will not presume an intention to convey the beneficial interest in lands to a stranger without any consideration. If, however, there is any consideration," or in the conveyance the use is declared to be to the grantee, as is the case in modern convey- ances operating under the statute of uses, the beneficial interest passes to the grantee." A use is held to result only in cases where the fee is conveyed to the stranger. If any less estate is trans- ferred, the presumption that the grantor did not intend to benefit the stranger is rebutted, and the grantee takes the beneficial inter- est" 7T Lloyd V. Spillet, 2 Atk. 150; 1 Perry, Trusts (4th Ed.) § 125; 2 Pom. Eq. Jur. (2d Ed.) § 1031. 7 8 Hogan V. Stray bom, 65 N. C. 279; Paice v. Archbishop of CaBterbuiy, 14 Ves. 864; Levet v, Needham, 2 Verm 138; Cooke v. Dealey, 22 Beav. 196. 7 9 1 Perry, Trusts (4th Ed.) § 150; Armstrong v. Wolsey, 2 Wlls. 19. Aud »iee Burt v. Wilson, 28 Cal. 632. 80 Farrington v. Barr, 36 N. H. 86; Philbrook v. Delano, 29 Me. 410. 81 An actual consideration will prevent a trust resulting. Hogan v. Jaques, 19 N. J. Eq. 123. The consideration need not be expressed in the instrument of conveyance. Bank of U. S. v. Housman, 6 Paige (N. Y.) 526; Miller v. Wilson, 15 Ohio, 108. A good consideration is sufficient. Groff v. Rohrer, 35 Md. 327; Sharington v. Strotton, 1 Plow. 298. Cf. Mildmay's Case, 1 Coke, 175. But not friendship, Warde v. Tuddingham, 2 Rolle, Abr. 783, pi. 5. The earlier cases hold a mere nominal consideration sufficient to rebut the presumption. Barker v. Keete, Freem. 249. And see Sandes' Case, 2 Rolle, Abr. 791. 82 See post, p. 409, and cf. DiUaye v. Greenough, 45 N. Y. 438; Squire v. Harder, 1 Paige (N. Y.) 494; Jackson v. Cleveland, 15 Mich. 94. Cf. Blodgett V. Hildreth, 103 Mass. 484; Stevenson v. Crapnell, 114 111. 19, 28 N. B. 379; McKinney v. Burns, 31 Ga. 295. 8 8 Shortridge v. Lamplugh, 2 Salk. 678; Anon., Brooke, 89. § 153) IMPLIED TRUSTS RESULTING TRUSTS. 267 Failure of Object of Thist When lands are conveyed to a trustee, and the tmst fails either in whole or in part, because of illegality, or of some defect in the in- strument declaring it, as much of the trust as fails results back to the grantor, his heirs, or residuary devisee.'* The result is the same where the instrument conveying the legal title shows that the grantee is to hold it in trust, as, for instance, by the use of the words •''in trust," or "upon the trusts hereafter to be declared," and no trusts are declared, or trusts are declared as to part of the estate only. In such case the grantor holds the beneficial interest under the trust which results. ®° Consideration Paid hy Another. The third class of resulting trusts is where the purchase price is paid by one person, and the conveyance taken in the name of an- other. In these cases equity presumes that it was the intention that the one who paid the money should hold the beneficial estate." In order that this presumption may arise, however, the payment must be actually made,''' or a present obligation to pay incurred, at the time of the conveyance," and the payment must be made as a 84 Gumbert's Appeal, 110 Pa. St 496, 1 All. 437; Stevens v. Ely, 1 Dev. Eq. (N. O.) 493; Hawley v. James, 5 Paige (N. Y.) 318; Russell v. Jackson, 10 Hare, 204; Pilkington v. Boughey, 12 Sim. 114; Williams v. Coade, 10 Ves. 500. 8 8 Sturtevant v. Jaques, 14 Allen (Mass.) 523; Morice v. Bishop of Durham, 10 Ves. 521; Dawson v. Clarke, 18 Ves. 247. 8 9 Sayre v. Townsend, 15 Wend. (N. Y.) 647; Kendall v. Mann, 11 Allen (Mass.) 15; Latham v. Henderson, 47 111. 185; Mathis v. StuSaebeam, 94 111. 481; Moss V. Moss, 95 111. 449; McLenan v. Sullivan, 13 Iowa, 521; Regan V. Walker, 1 Wis. 527; Collins v. Corson (N. J. Ch.) 30 Atl. 862; Gasbe v. Young (Ohio Sup.) 38 N. E. 20; Lee v. Patten, 34 Fla. 149, 15 South. 775; Hews V. Kenney, 43 Neb. 815, 62 N. W. 204. When a co-tenant takes the le- gal title to the whole tract, a resulting trust arises. Rogers v. Donnellan (Utah) 39 Pac. 494. For evidence held insufficient to establish this form of trust, see Throckmorton v. Throckmorton (Va.) 22 S. E. 162. 8 7 Barnet v. Dougherty, 32 Pa. St. 371; Perkins v. Nichols, 11 Allen (Mass.) 542; Alexander v. Tams, 13 111. 221; Whiting v. Gould, 2 Wis. 552; Sullivan V. McLenans, 2 Iowa, 442; Howell v. Howell, 15 N. J. Eq. 75. 88 Gilchrist v. Brown, 165 Pa. St 275, SO Aa 839; Whaley v. Whaley, 71 Ala. 159. 268 EQUITABLE ESTATES. (Ch. 10" purchase, and not as a loan." A payment of part of the purchase price will raise a resulting trust, in proportion to the amount paid.** Trusts of this kind often arise in cases of joint purchase, where the title is taken in the name of one only." These resulting trasts are abolished by statute in several states, except where the title is taken in the name of another person without the consent of the person paying the purchase price.*' It is provided in each of these states, however, that these trusts may be enforced in favor of creditors ol the one paying the money.'" Same — Deed to Wife or Child. Where the legal title is taken in the name of the wife or a child of the one paying the purchase price, the usual presumption does not obtain, and no trust results; for it is considered that, when the one advancing the money takes the title in the name of one whom he is under a legal or moral obligation to support, the transaction is in- tended as an advancement or gift.** Parol evidence, however, is ad- missible to show that no such intention existed, and in this way to establish a resulting trust;*' and the transferee may, on the other hand, introduce evidence to show that an advancement was intend- ed.*^ Here, as in all other cases where a trust is sought to be es- tablished by parol evidence, the proof must be clear.* • 88 Francestown v. Deerlng, 41 N. H. 438. Cf. McGowan v. McGowan, 14 Gr^y CMass.) 119; Cramer v. Hoose, 93 111. 503; Berry v. Wiedman (W. Va.) 20 S. E. 817. 8 Smith V. Smith, 85 111. 189; Botsford v. Burr, 2 Johns. Ch. (N. Y.) 405; Say re v. Townsend, 15 Wend. (N. Y.) &47; Latham v. Henderson, 47 111. 185. 81 Robarts v. Haley, 65 Cal. 397, 4 Pac. 385; Paige v. Paige, 71 Iowa, 313, 32 N. W. 3G0. And see cases In the last note. 8 2 1 stim. Am. St. Law, § 1706; Haaven v. Hoaas, 60 Minn. 313, 62 N. W. 110. 8 3 1 Stim. Am. St. Law, fi 1706. But see McCahill v. McCahill, 11 Misc. Rep. 258, 32 N. Y. Supp. 836; Gage v. Gage, 83 Hun, 362, 31 N. Y. Supp. 903. 84 Cartwright v. Wise, 14 111. 417; Guthrie v. Gardner, 19 Wend. (N. Y.> 414; Seibold v. Christman, 75 Mo. 308. 86 Guthrie v. Gardner, 19 Wend. (N. Y.) 414; Jackson v. Matsdorf, 11 Johns. (N. Y.) 91; Persons v. Persons, 25 N. J. Eq. 250; Taylor v. Taylor, 4 Gilm. (111.) 303; Butler v. Insurance Co., 14 Ala. 777; Dudley v. Bosworth, 1^ Humph. (Tenn.) 8. »T Sldmouth V. Sidmouth, 2 Beav. 455. »• Cartwright v. Wise, 14 111. 417; Cairns v. Coleburn, 104 Mass. 274. I 154) IMPLIED TRUSTS CONSTRUCTIVE TRUSTS. 269 SAME— CONSTRUCTIVE TRUSTS. 154. Where the title to real property is acquired by fraud, the law to do justice treats the wrongdoer as a trustee for the one defrauded. Trusts so established are called constructive. Constructive trusts are raised in order to do justice between the parties, without any reference to the probable intention, and in most cases contrary to the intention, of the trustee. Constructive trusts, in all cases, arise out of fraud." » The fraud, however, need not be actual, but may be implied, — such as fraud which is presumed from the relation of the parties.'"* The kinds of constructive trusts which may arise are as numerous as the frauds by which property may be obtained. Only the principal types of such trusts which arise in relation to realty can be mentioned. Where property which is held in trust is acquired by a purchaser who has notice of the trust,'"^ or by one who pays no consideration for the transfer, t'> transi'eree will hold the property subject to a constructive tnist in favcr of the one beneficially entitled. '°=^ This same result obtains where the title is transferred by operation of law; for instance, when it descends to the heirs of the tinistee.'"' In this class of con- fitructive trust no actual fraud is necessary, and in fact it mi^ht be said that a trust already existing is continued against the transferee »» 1 Perry, Trusts (4th Ed.) § 1G6. See Frick Co. v. Taylor, 94 Ga. 683, 21 S. E. 713; Farris v. Farris (Ky.) 29 S. W. 618; Lawson v. Hunt, 153 111. 232, 88 N. E. 629; Goldsmitli v. Goldsmith, 145 N. Y. 313, 39 N. E. 1067. 100 See Fetter, Eq. p. 142; 1 Perry, Trusts (4th Ed.) § 194; Roggenkamp v. Roggenkamp, 15 C. C. A, 600, 68 Fed. 605; Cobb v. Trammell (Tex. Civ. App.) 80 S. W. 482; Haight v. Pearson, 11 Utah, 51, 39 Pac. 479. But see Brown v. Brown, 154 111. 35, 39 N. E. 983. 101 Wormley v, Wormley, 8 Wheat. 421; Oliver v. Piatt, 3 How. 333; Cald- well V. Carington's Heirs, 9 Pet. 86; James v. Cowing, 17 Hun (N. Y.) 256; Ryan v. Doyle, 31 Iowa, 53; Smith v. Walser, 49 Mo. 250; Smith v. Jeffreys, (Miss.) 16 South. 377. 402 Caldwell v. Carington's Heirs, 9 Pet. 86. 103 Randall v. Phillips, 3 Mason, 378, Fed. Cas. No. 11,555; Caines v. Grant's Lessee, 5 Bin. (Pa.) 119. 270 EQUITABLE ESTATES. (Ch. 10 of the property, rather than that a new one is created.^"* Another class of cases tn which constructive trusts are raised is where a trustee or other fiduciary person purchases property with tmst funds, and takes the title in his own name. In such case he holds the property so purchased in trust for the one entitled to the money with which the property was purchased.^"" From the principle that a trustee will not be permitted to make any profit for himself out of transactions connected with the trust property,"* if one hold- ing a fiduciary position renews a lease to lands held by the bene- ficiary the renewal will operate to the benefit of the latter. These cases arise principally where leases are renewed by a partner or by a trustee.^"^ "WTienever a man appropriates another's property, or wrongfully converts it into a changed form, the person wronged may treat the other as holding the property in trust for him. This is the case where an agent embezzles money and invests it in land. So long as the money can be traced, a trust may be established in favor of the one defrauded.^"* Another class of cases where constructive trusts are raised is where the trustee acquires the trust property by a purchase at his own sale of the property,'^ °° or by purchase or gift from the cestui que trust. ^" TVTiere a transfer of property is pro- cured by fraud or misrepresentations, a constructive trust is said to arise ex maleficio.^^^ An instance of this is where a devise is pro- 104 Gardner v. Ogden, 22 N. Y. 327; Swinburne v. Swinburne, 28 N. Y. 568; Hubbell V. Medbury, 53 N. Y. 98; Baldwin v. Allison, 4 Minn. 25 (Gil. 11). lOB Rice v. Rice. 108 111. 199; Weaver v. Fisher, 110 111. 146; Murphy v. Murphy, 80 Iowa, 740, 45 N. W. 914; Everly v. Harrison, 167 Pa. St. 355, 31 Atl. 668; Morgan v. Fisher, 82 Va. 417; Pillars v. McConnell, 141 Ind. 670, 40 N. E. 089; Merket v. Smith, 33 Kan. 66, 5 Pac. 894; Thompson v. Hartline (Ala.) 16 South. 711. 106 1 Perry, Trusts (4th Ed.) § 129. 107 Featherstonhaugh v. Fenwick, 17 Ves. 298; Ex parte Grace, 1 Bos. & P. 376. 108 Foote v. Colvin, 3 Johns. (N. Y.) 216; Oliver v. Piatt, 3 How. 833; Grouch V. Lumber Co. (^Sliss.) 16 South. 496. 108 Sypher v, McHenry, 18 Iowa, 232; Bush v. Sherman, 80 111. 160. Of. Hawley v. Cramer, 4 Cow. (N. Y.) 717. iioBerkmeyer v. Kellerman, 32 Ohio St. 239; Johnson v. Bennett, 39 Barb. (N, Y.) 237; Kern v. Chall'ant, 7 Minn. 487 (Git 393); 2 Pom. Eq. Jur. (2d Ed.) § 1053. Ill Hoge V. Hoge, 1 Watts (Pa.) 163. §§ 155-156) INCIDENTS OF EQUITABLE ESTATES. 271 cured by a false promise to hold the property for the benefit of an- other person. The courts wiU enforce such a promise by mali:ing the devisee a trustee of the property for such person.^ ^' So, if one purchases property upon a fraudulent rerbal promise to hold it for another, he will be treated as trustee for such person, as where he claims to be purchasing for the mortgagor at a foreclosure sale.^^* It is often said that a trust arises in favor of creditors where there has been a fraudulent transfer of a debtor's property; but this is a misuse of the term, because the creditors are only entitled to some of the remedies given against a trustee, and no real trust in fact ex- ists.^^* The same objection exists to treating a vendor under a contract of sale as a trustee for the vendee, or a surviving partner as a trustee of the partnership funds. INCIDENTS or EQUITABLE ESTATES. 155. A trustee is the holder of the legal title. The cestui que trust is the beneficial o-WTier. 156. The rights and duties of trustee and cestui que trust depend, in each case, upon the nature and terms of the trust. Few general principles of value can be given with reference to the rights and duties of trustees and their beneficiaries, beyond the fact that each trust contains special terms and provisions which af- fect the rights of the parties. In passive trusts, which are infre- quent from the fact of their being executed by the statute of uses in most cases, except in trusts of chattel interests,^" the beneficiary is entitled to the possession of the premises, and the exercise of aU rights of an actual owner.^^' The trustee merely holds the legal title subject to the rights of the cestui que trust.^^^ 112 Williams v. Vreeland, 29 N. J. Eq. 417; Dowd v. Tucker, 41 Conn. 197. And see Trustees of Amherst College v. Ritch, 10 Misc. Rep. 503, 31 N. Y. Supp. 885. 118 Sheriff v. Neal, 6 Watts (Pa.) 534; Ryan v. Dox, 34 N. Y. 307; Dennis v. McCagg, 82 IlL 429; Vanbever v. Vanbever (Ky.) 30 S. W. 983. 114 2 Pom. Eq. Jur. (2d Ed.) § 1057. 115 See ante, p. 255. ii« Campbell v. Prestons, 22 Grat (Va.) 396; Harris v. McElroy, 45 Pa. St iiT Stewart v. Chadwick, 8 Iowa, 463; Bowditch v. Andrew, 8 Allen (Mass.) 839; Matthews v. McPherson, 65 N. C. 189. ^72 EQUITABLE ESTATES. (Ch. 10 In active or special trusts, on the other hand, it is often necessary that the trustee retain the possession in order that he may perform the duties connected with the carrying out of the trust.^^' The principal cases of active trusts are those to convey the lands held in trust to a certain person or persons, to sell the lands, to invest the trust funds, and to hold the property and receive the rents and profits for the benefit of the cestuis que trustent.^^" Interest of the Trustee. Trust estates are generally given to two or more trustees jointly. \Vhen the instrument creating the trust is obscure, such a construc- tion would be favored."" Joint trustees, however, cannot have par- tition."^ A trust will never be allowed to fail for want of a trustee, for the court will appoint one to carry out the trust**' The questions relating to appointment and removal of trustees, their duties, etc., relate more properly to treatises on equity, and will not be considered here.*'' The incidents of a legal estate in lands attach to the title held by a trustee.^ ^* For instance, he may sell and convey ^^° or devise it by his will.**' In New York, Michigan, and some other states, prop- erty held by a trustee cannot be devised by him, but vests in the 216; Stevenson v. Lesley, 70 N. Y. 512. Retention of possession by the gran- tor does not Invalidate the trust. Williams v. Evans, 154 111. 98, 89 N. B. 698. 118 Matthews v. McPherson, 65 N. C. 189; Young v. Miles' Ex'rs, 10 B. Mon. (Ky.) 290; Shankland's Appeal, 47 Pa. St. 113; Barnett's Appeal, 46 Pa. St. 392; McCosker v. Brady, 1 Barb. Ch. (N. Y.) 329. ii» See cases last cited, and Blake v. Bumbury, 1 Ves. Jr. 514; Tidd ▼. Lister, 5 Madd. 429; Stanley v. Colt, 5 Wall. 119. 120 Saunders v. Schmaelzle, 49 Cal. 59. 121 See post, p. 344. Baldwin v. Humphrey, 44 N. Y. 609. 122 Adams v. Adams, 21 Wall. 185; Tainter v. Clark, 5 Allen (Mass.) 66; Shepherd v. McEvers, 4 Johns. Ch. (N. Y.) 136. 123 See Fetter, Eq. p. 200; 1 Perry, Trusts, § 259; 2 Pom. Eq. Jur. § 1059. 124 Devin v. Hendershott, 32 Iowa, 192; 1 Perry, Trusts (4th Ed.) § 821. 12B Shortz V. Unangst, 3 Watts & S. (Pa.) 45; Den v. Troutman, 7 Ired. (N. C.) 155. 12 8 As to the words which, In a general devise, will carry estates of which the testator holds the legal title as trustee, see Taylor v. Benham, 5 How. 238; Jackson v. De Lancy, 13 Johns. (N. Y.) 537; Merritt v. Loan Co., 2 Bdw. Ch. ates, 70 Pa, St. 350; Warland v. Colwell, 10 R. I. 869; Stearns v. Palmer, 10 Mete. (Mass.) 32; Second Congregational See. v. Waring, 24 Pick. (Mass.) 309. 131 Cox V. Walker, 26 Me. 504. 182 James v. Morey, 2 Cow. (N. Y.) 246; Mason v. Mason's Ex'rs, 2 Sandf. Ch. (N. Y.) 432; HeaJey v. Alston, 25 Miss. 190; Den v. Cooper, 25 N. J. Law, 137. But see, where the estates are not equal, Donalds v. Plumb, S Conn. 446. 188 Gardner v. Astor, 3 Johns. Ch. (N. Y.) 53. Star v. Ellis, 6 Johns. Ch. (N. Y.) 393; Hunt v. Hunt, 14 Pick. (Mass.) 374; Lewis v. Starke, 10 Smedes & M. (Miss.) 120. 134 Dig. Hist. Real Prop. (4th Ed.) 317. 188 Bowditch V. Andrew, 8 Allen (Mass.) 339. 188 1 Stim. Am, St Law, § 1720. 187 Sherman v. Dodge, 28 Vt 26; Waring's Ex'r v. Waring, 10 B. Mon. (Ky.) 331; Winona & St P. R. Co. v. St Paul & S. C. R. Co., 26 Minn. 179, 2 N. W. 489. Where it was the duty of the trustee to convey art; the request of bis cestui, a conveyance may be presumed, in order to give security to titles, KEAL PBOP. — 18 274 EQUITABLE ESTATES. (Ch. 10 have already been considered. ^^* Under a special or active trust, the rights of the beneficiary consist principally in his power to compel the trustee to perform the trust. Equitable estates are subject to payment of the owner's debts,^" though this was not the rule at common law.^*° An equitable estate may be lost by disseisin, if not recovered within the time prescribed by the statute of limita- tions.^*^ Possession by the trustee, however, is regarded as the possession of the cestui que trust, and so is not adverse, unless the trustee repudiates the trust.^*' CHARITABLE TRUSTS. 157. Charitable trusts are those created for the benefit of the public at large, or of some portion of it, and include benevolent, religious, and educational ob- jects. 158. Charitable trusts differ from private trusts principally in that (a) Less certainty of description in designating the ob- ject and beneficiaries is required. (b) A gift from one charity to another may be valid, though on a contingency 'wrhich is remote, under the rule against perpetuities. (c) The rule against accumulations probably does not apply to charitable trusts. (d) By the cy-pres doctrine, the trust funds may be ap- plied to some other object than the one designated by the creator of the trust. although In fact none has ever been made. Moore y. Jackson, 4 Wend. (N. Y.) 58. 18 8 Ante, pp. 77, 89. 189 Jackson v. Walker, 4 Wend. (N. Y.) 402; Hutchins v. Hey wood, 50 N. H. 491. 140 Pratt V. Colt, Freem. Ch. 139; Forth v. Duke of Norfolk, 4 Madd. 503. 1*1 Kane v. Bloodfrood, 7 Johns. Ch. (N. Y.) 90; HubbeU v. Medbury. 53 N. Y. 98; Halsey v. Tate, 52 Pa. St. 811; Neel v. McElhenny, 69 Pa. St. 300; Robertson v. Wood, 15 Tex, 1. H2 Zacharlas v. Zacharias, 23 Pa. St 452; Seymour v. Freer, 8 WalL 203; |§ lo7-lo8) CHARITABLE TRUSTS. 275 The terms "public trust" and "charitable trust" are practically synonymous in their use, as is shown by the following definition: "A charity, in a legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an in- definite number of persons,— either by bringing their hearts under the inlluence of education or religion; by relieving their bodies from disease, suffering, or constraint; by assisting them to establish' themselves for life; or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government." * The most usual objects for which public trusts are created are for the founding and maintaining of schools and hospitals; ^*'^ the establish- ment of funds and homes for the poor, and other dependent class- es; ^** the building and repair of churches; and the propagation of religious doctrines in other ways.^*"* After considerable conflict of opinion, it has been decided that the "statute of charitable uses," ^*« so called, was not the origin of charitable trusts, but that they ex- isted prior to the enactment of that statute, and that courts of equity have jurisdiction over them even in states where that statute has not been recognized nor re-enacted.^ *^ Public trusts are created in the same way as private trusts.*** Boone v. Chiles, 10 Pet. 177; Oliver v. Piatt, 3 How. 333; Davis v. Cobum, 128 Mass. 377. But see Halsey v. Tate, 52 Pa. St. 311; Neel v. McElhenny, 69 Pa. St. 300. * Gray, C. J., in Jackson v. Phillips, 14 Allen (Mass.) 556. 1*3 Tainter v. Clark, 5 Allen (Mass.) 66; Andrews v. Andrews, 110 III. 223; Board of Education v. Bakewell, 122 111. 339, 10 N. E. 378. Or a library. Cott- man v. Gi-ace, 41 Hun (N. Y.) 345. 1** Attorney General v. Old South Soc, 13 Allen (Mass.) 474; Shotwell v. Mott, 2 Sandf. Ch. (N. Y.) 46; Chambers v. St. Louis, 29 Mo. 543. 145 Andrews v. Andrews, 110 111. 223; Bridges v. Pleasants, 4 Ired. Eq. (N. C.) 26; Attorney General v. Wallace's Devisees, 7 B. Mon. (Ky.) 611. 1*6 43 Eliz. c. 4. 1*7 vidal V. Girard, 2 How. 127; Going v. Emery, 16 Pick. (Mass.) 107; Gil- man V. Hamilton, 16 111. 225. But see Trustees of Philadelphia Baptist Ass'n V. Hart's Ex'rs, 4 Wheat. 1. 1*8 Olliffe V. Wells, 130 Mass. 221. They are not executed by the statute of uses, because the trustees generally have actual duties to perform, and the beneficiaries are uncertain. Beckwlth v. Rector, etc., 69 (Ja. 564. 276 EQUITABLE ESTATES. (Ch. 10 BeneJici See Fisher v. Edington, 12 Lea (Term.) 189. 88 Jordan v. McClure, 85 Pa. St. 495; Craig v. Warner, 5 Mackey (D. C.) 460. 84 Dennett v. Dennett, 40 N. H. 498. See, however, Egerton v. Massey, 8 C. B. (N. S.) 338; Bennett v. Morris, 6 Rawle (Pa.) 8. 8B Archer's Case, 1 Coke, 66b; Doe v. Howell, 10 Barn. & O. 1»1. 8 6 Williams v. Angell, 7 R. I. 145. 87 Ante, p. 59. 8» 1 Stim. Am. St Law, SS 1403, 1426; 2 Snars. & B. Lead. Cas. Real Prop. 368. § 174) RULE IN Shelley's case. 295 Trustees to Preserve Contingent Remavnders. On account of the liability of contingent remainders to destruc- tion by the determination of the preceding estate, a device was in- troduced to prevent this result, as follows: After the limitation of a particular estate, — for instance, an estate to A. for life, — the re- mainder was given to trustees to preserve contingent remainders during the life of A., and then other remainders over as in the usual limitations. In these cases. If by any means A.'s life estate was determined before his death, the trustees would hold the estate un- til his death, when the other remainders would take effect as though A. had not lost his estate. The trustees were held to take vested remainders under these limitations; otherwise their estates would be destroyed like other contingent remainders.^® The stat- ute of uses does not execute the estate of the trustees.® ° If the trustees should do anything to destroy their own estate, and there- by defeat the contingent remainders depending thereon, they would be guilty of a breach of trust, and liable for the damages suffered by the remainder-men,'* SAME— RULE IN SHELLEY'S CASE. 174. If an estate of freehold be limited to a person, and by the same instrument an estate be limited in the form of a remainder, Tvhether immediately after the estate, or after other estates interposed, to the heirs, or to the heirs of the body, of the same person, the Tvords "heirs," or "heirs of the body," are words of limitation of an estate of inheritance in the an- cestor, and the heirs can take only by descent, and not as purchasers.** A grant "to A. and to his heirs," and a grant "to A. for life, and after his decease to his heirs," according to the primitive force 8» Smith V. Packhurst, 3 Atk. 135. »o Vanderheyden v. Crandall, 2 Denio (N. Y.) 9. »i 2 BL Comm. 171. For a full account of trustees to preserve contingent remainders, see Webster v. Cooper, 14 How. 488. sa Leake, Land, 343. 296 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 and effect of the expressions, were manifestly identical, inasmuch as they both conferred life estates upon A., and upon the persons designated as his heirs in succession. They were still construed as identical, notwithstanding the change in the position and inter- est of the heir consequent upon the enlarged power of alienation in the ancestor. The limitation "to the heirs," in both cases, ceased to confer directly any estate upon the persons answering to that designation, and was referred to the estate of the ancestor, which, though expressed to be, in the first place, for life, it enlarged to an estate of inheritance, so that the heir took only by descent. This is the origin and simplest form of the rule in Shelley's Case. The limitations with which we have to do in considering this rule are not, as is seen from the definition, remainders, but they are remainders in form. Tlie rule above stated is called the rule in Shelley's Case because it was applied in an early case by that uame,«3 though the rule did not originate in that case. As indi- cated by the statement of the rule given in the black letter, where a remainder is given to the heirs, or the heirs of the body, of the one who by the same instrument is given the particular estate, the word "heirs" is a word of limitation, and not of purchase; and the first taker has a fee simple, or a fee tail, as the case may be, in- stead of a life estate followed by a remainder, as the form of limi- tation would indicate." The rule in Shelley's Case applies to lease- holds as well as to freeholds." The limitations must be all in one •instrument,^® but for this purpose a resulting use in the first taker •8 Shelley's Case, 1 Coke, 88b, 93b; Moore, 130. A good discussion of the case will be found In Challls, Real Prop. 123. »4 Kleppner v. Laverty, 70 Pa. St, 70; Carson v. Fuhs, 131 Pa. St 256, 18 Atl. 1017; Butler v. Huestis, 68 111. 594; Hageman v. Hageman, 129 111. 164, 21 N. E. 814; Leathers v. Gray, 101 N. C. 162, 7 S. B. 657; Waters V. Lyon, 141 Ind. 170, 40 N. B. 662; Taney v. Fahnley, 126 Ind. 88, 25 N. B. 882; Langley v. Baldwin, 1 Eq. Cas. Abr. 185. Cf. Turman v. White, 14 B. Mon. (Ky.) 560; Pratt v. Leadbetter, 38 Me. 9; Hamilton v. Wentworth, 58 Me. 101; Perrin v. Blake, 1 W. Bl. 672. Bue see note on this case in 5 Gray, Cas. Real Prop. 99. »o Ogden's Appeal, 70 Pa. St 501; Hughes v. Nlcklas, 70 Md. 484, 17 Atl. 398; Seeger v. Leakln, 76 Md. 500, 25 Atl. 862; Home v. Lyeth, 4 Har. 6 J. (Md.) 431. »« Adams v. Guerard, 29 Ga. 651; Moor v. Parker, 4 Mod. 316. § 174) RULE IN Shelley's case. 297 is sufiBcient.®^ But if one limitation is in a will, and the other in a codicil to the will, the rule applies.®* If the word 'Tieirs" is added to the first word "heirs," as where the limitation is to A. for life, remainder to his heirs and their heirs forever, the second word "heirs" is of no effect, and A. takes a fee simple.^® The rule oper- ates upon limitations of equitable estates as well as of legal, but both the remainder and the particular estate must be of the same kind.^®° In a devise, the word "children," "sons," or "issue" may be equivalent to the word "heirs"; and, if such appears to be the intention of the testator, the rule will operate the same as if the word "heirs" had been used.^"^ On the other hand, the word "heirs" may be used as a word of purchase, where it designates certain as- certained pereons, as children. In these cases the rule does not apply, and the person designated as heir takes a remainder.^*'^ Nor is the rule applicable when the remainder is limited to the heirs of another than the person who takes the particular estate; for instance, where a life estate is given to A,, with a remainder to the heirs of A. and B., his wife.^°* An express direction, in the deed or will containing a limitation of a form within the rule in Shelley's Case, that the rule shall not operate, will be ineffectual. And the one who takes the preceding estate may convey a fee simple, or a fee tail, as the case may be, without regard to the heirs. ^''* And 87 Pibus V. Mitford, 1 Vent 372. 8 8 Hayes v. Foorde, 2 W. Bl. 698. 8 Mills V. Seward. 1 Johns. & H. 733. 100 Croxall v. Shererd, 5 Wall. 268; Ward v. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Baile v. Coleman, 2 Vern. 670; Garth v. Baldwin, 2 Ves. Sr. 646. 101 Jackson v. Jackson, 127 Ind. 346, 26 N. E. 897; Roe v. Grew, 2 Wils. 8^; Doe v. Cooper, 1 East, 229. But see Adams v. Ross, 30 N. J. Law, 50.'5; Henderson v. Henderson, 64 Md. 185, 1 Atl. 72. 102 Righter V. Forrester, 1 Bush (Ky.) 278; Mitchell v. Simpson, 88 Ky. 125, 10 S. W. 872; Papillon v. Voice, 2 P. Wms, 471; Jordan v. Adams. 9 C. B. (N. S.) 483; Cowell v. Hicks (N. J. Ch.) 30 Atl. 1091. But see Jesson V. Wright, 2 Bligh, 1. 103 Shaw V. Robinson, 42 S. C. 342, 20 S. E. 161; Frogmorton v. Wharrey, 2 W. Bl. 728. Cf. Archer's Case, 1 Coke, 66b. 104 Cf. Thong V. Bedford, 4 Maule & S. 862. But see Jenkins v. Jenkins, 96 N. C. 254, 2 S. E. 522; Fields v. Watson, 23 S. O. 42; Earnhart v. Eam- hart, 127 Ind. 397, 26 N. E. 895. 298 ESTATES AS TO TIME OF ENJOYME.N'I FUTURE ESTATES. (Cll. 11 the heirs will take the estate by inheritance only in case he does not dispose of it in his lifetime, or by will. In some states the rule in Shelley's Case has been abolished by statute/"' and the heirs take a contingent remainder, according to the form of the limitation.**" FUTURE ESTATES UNDER THE STATUTE OP USES, 175. Future estates created under the statute of uses are, — (a) Future uses (p. 298). (b) Springing uses (p. 299). (c) Shifting uses (p. 300). As has already been seen, after the Introduction of uses it be- came possible to create estates in land which could not be raised at common law.*°^ Before the statute of uses, the owner of land could enfeoff another in fee to hold for the use of the feoffor for life, and after his death to the use of a third person, etc. After the passage of the statute of uses, the legal title in such cases was executed in the beneficiaries, — that is, if the estate was vested,— and contingent estates were executed as soon as they becan>e vested, and in this way legal estates could be created which were impossible before the statute. Although freeholds could not be made to commence in future at common law, future uses were recognized before the statute of uses, and continued to be after its passage.^°^ In some of the books there is a great deal of dis- cussion as to where the seisin was in case of future uses, but this refinement is now of no value.**" SAME— FUTURE USES. 176. Future uses are uses -which take effect as remainders. Uses which take effect as remainders are most properly called future uses, though the term "contingent uses" is often applied 108 1 stlm. Am. St. Law, § 1406. 10 « Richardson v. Wheatland, 7 Mete. (Mass.) 169; Moore v. Llttel, 41 N. Y. 66. lOT Ante, p. 254. 108 Welsh V. Foster, 12 Mass. 93; Wyman v. Brown, 50 Me. 139. io» See Brent's Case, 3 Dyer, 340a; Chudlelgh's Case, 1 Coke, 120. § 177) 8PRINGIN0 USES. 299 to them. This Is incorrect, however, since such uses may take effect as vested remainders as well as contingent.^^" Remain- ders arising under the statute of uses have the same incidents as those at common law.^^* A future use must have a preceding particular estate to support it, and must not take effect in dero- gation of that estate. If these requisites fail, the limitation will take effect as a springing or shifting use.**' Contingent uses may be defeated the same as contingent remainders.*** SAME— SPRINGING USES. 177. Springing uses are uses -which take effect -without any preceding estate to support them. "A springing use is a use, either vested or contingent, limited to arise without any preceding limitation." *** Springing uses do not defeat a preceding particular estate.**' When there is a limitation of a springing use, there is also a resulting use in fee in the grantor, until the springing use tal^es effect, so that in reality the springing use operates on the preceding resulting use in the grantor in the same way that a shifting use does upon the particular estate which precedes it.**" An example of a springing use is a limitation to the use of B. and his heirs after the death of A.**^ A springing use may be contingent as well as vested.* ^^ 110 Adams v. Terre-Tenants of Savage, 2 Salk. 679; Davies v. Speed, Id. 675; Southcote V. Stowell, 1 Mod. 238; Cole v. Sewell, 4 Dru. & War. 1; Gore V. Gore, 2 P. Wms. 28. m 2 Washb. Real Prop. (5th Ed.) 663; Rogers v. Fire Co., 9 Wend. (N. T.) 611; State v. Trask, 6 Vt. 355. So they cannot be limited after an estate for years. Adams v. Savage, 2 Ld. Raym. 854; Rawley v. Holland, 22 Vin. Abr. 189, pi. 11. 112 Gore V. Gore, 2 P. Wms. 28; Davies v Speed, 2 Salk. 675. 118 See Davies v. Speed, 2 Salk. 675. 11* Cornish, Uses, 91. iiBMcKee v. Marshall (Ky.) 5 S. W. 415. Wyman v. Brown, 50 Me. 139; Egerton v. Brownlow, 4 H. L. Cas. 1, 205. 118 Shapleigh v. Pilsbury, 1 Me. 139; Nicolls v. Sheffield, 2 Brown, Ch. 215. iiT Jackson v. Dunsbach, 1 Johns. Cas. (N. Y.) 92; Mutton's Case, 8 Dyer, 274. 118 Shapleigh v. Pilsbury, 1 Me. 271, 300 KSTATE3 A3 TO TIME OF BNJOYMBNT FUTURE ESTATES. (Ch. 11 SAME— SHIFTING USES. 178. Shifting uses are uses which take effect in derogation of a preceding estate. Shifting uses are also called secondary uses, and are future limitations which cut short a preceding estate; ^" for example, a limitation to A. and his heirs, and after B. returns from Rome to 0. The estate which C. takes when B. returns from Rome cuts off the preceding estate in A. By means of a shifting use, it is possible to limit a fee after a fee.^^"* rUTURE ESTATES UNDER THE STATUTE OF WILLS- EXECUTORY DEVISES. 179. Executory devises are future estates created by de- vise under the statute of -wills, -which cannot take effect as remainders. 180. Executory de-vises may be either springing or shift- ing. The statute of uses prohibited the alienation of real property by will, which had been possible before the statute by means of uses.^^^ The inconvenience produced, however, was so great that it led to the enactment of the statute of wills ^^^ before those decisions which, as was seen, virtually repealed the statute of uses.^*' By the very liberal provisions of the statute of wills, it was possible to create any future interest in realty which could be created by means of uses before the statute of uses; and the construction placed on such limitation by the courts is more 119 Fogarty v. Stack, 86 Tenn. 610, 8 S. W. 846; Battey v. Hopkins, 6 R. 1. 443; Buckworth v. Thirkell, 3 Bos. & P. 652, note; Mutton's Case. 3 Dyer, 274; Carwardlne v. Carwardine, 1 Eden, 28, 34; Egerton v. Brown- low, 4 H. Li. Cas. 1. 120 Battey v. Hopkins, 6 R. I. 443. And see cases in last note. "1 See Dig. Hist. Real Prop. (4th Ed.) 375. 122 82 Hen. VIH. c. L 123 Ante, p. 254. §§ 179-180) EXECUTORY DEVISES. 301 liberal than the construction of future uses, owing to the attempts of the courts to carry out the intentions of the testators."* These executory limitations arising under wills are called executory devises. An executory devise may be by direct gift to the devisee, or it may be through the medium of a declaration of uses.""^ So, too, remainders may be limited by devise."' One or more re- mainders may be followed by an executory devise, but there can- not be a remainder after an executory devise, all such limitations being construed as executory devises also. These are in fact suc- cessive executory demises, like successive remainders. When, however, the first devise vests, all the others will vest as re- mainders that can,"^ Executory devises are presumed to be devises in praesenti, rather than limitations of future estates, when- ever it is possible to so construe them, so thai if they do not take effect at the death of the testator they will lapse."* But slight circumstances are in the later cases held sufficient to rebut this presumption.^^® Like other executory limitations, executory de- Tises may be either vested or contingent, and a destruction of the first devise does not defeat subsequent ones."° It is not necessary to state the distinctions between executory devises and remainders, as they have already been considered,"^ but it should be borne in 124 Annable v. Patch, 3 Pick. (Mass.) 360; Scott v. West, 63 Wis. 529, 24 N. W. 161, and 25 N. W. 18; Smith v. Kimbell, 153 111. 368, 38 N. E. 1029; Rupp V. Eberly, 79 Pa. St. 141; Wood v. Wood, 5 Paige (N. Y.) 596; Smith V. Bell, 6 Pet. 68. 12 B Crerar v. Williams, 145 111. 625, 34 N. E. 467. 126 Watson V. Smith, 110 N. C. 6, 14 S. E. 640; Nightingale v. Burrell, 15 Pick. (Mass.) 104; Hall v. Priest, 6 Gray (Mass.) 18; Manderson v. Lukens. 23 Pa. St. 31. 127 Brownsword v. Edwards, 2 Ves. Sr. 243; Doe v. Howell, 10 Barn. »&: C. 191; Pay's Case, Cro. Eliz. 878. 128 Scott V. West, 63 Wis. 529, 24 N. W. 161, and 25 N. W. 18; Kouvalinka T. Geibel, 40 N. J. Eq. 443, 3 Atl. 260; Jones v. Webb, 5 Del. Ch. 132. 129 Annable v. Patch, 3 Pick. (Mass.) 360; Rupp v. Eberly, 79 Pa, St 141; Darcus v. Crump, 6 B. Mon. (Ky.) 363; Napier v. Howard, 3 Ga. 192. 180 Moffat's Ex'rs v. Strong, 10 Johns. (N. Y.) 12; Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Smith v. Hunter, 23 Ind. 580; Randall v; Josselyn, 59 Vt. 557, 10 Atl. 577; Den v. Hance, 11 N. J. Law, 244; Mathis v. Hammond. 6 Rich. Eq. (S. C.) 121. 131 Ante, p. 285. Of. Plunket v. Holmes, 1 Lev. 11; Doe v. Scudamore, 2 Bos. & P. 289. 302 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Cll. 11 mind that there may be alternate remainders in fee which in form are much lilfe executory devises.^" An estate limited to take effect after a fee tail is always construed as a remainder, if possible, rather than as an executory devise.^ ^' It has already been stated that executory devises may be either springing or shifting, but the distinction is seldom used in the books. A shifting devise may divest the preceding estate in part only, and in cases where the first taker is given a fee, with a shift- ing devise to another of a life estate, the question often arises whether the devise will defeat the prior estate altogether, or only to the extent of the life estate. The decision in all of these cases must depend upon the intention of the testator.^"* Executory devises cannot be defeated by the tenant of the prior estate.^" Where an estate is divested by a devise over on a contingency, if the contingency happens the first estate is divested,, though the devise over be void.^"' INCIDENTS OF FUTURE ESTATES. 181. The rights of the owners of future estates are correl- atives of the duties of the tenants of the preceding estates. i»2 See Wilson v. White, 109 N. Y. 59, 15 N. E. 749; Taylor v. Taylor, 63 Pa. St. 481; Dunwoodie v. Reed, 3 Serg. & II. (Pa.) 435. 138 Allen V. Trustees, 102 Mass. 262; Parlecified by the appointment as by a devise to uses to be de- clared by the appointment.^*" Powers may be created by will or by deed, and any words which show an intention of the donor are sufficient, technical words as to the estates to be created by the power not beiijg required.^ '^ For example, a power to sell in general would give a power to sell a fee, if the donor had a fee.^^* SAME— CLASSES OF POWERS AS TO DONEE. 192. Powers are divided, -with reference to the donee's re- lation to the land affected by the.po-wer, into — (a) Powers appendant and in gross (p. 310). (b) Powers collateral, or naked pow^ers (p. 311). 193. POWERS APPENDANT AND IN GROSS— A power may be given to a donee who has some estate in the land in addition to the power. Such powers are (a) Appendant w^hen the power is to be executed w^holly or in part out of the estate of the donee. Cb) In gross w^hen the execution of the pow^er does not affect the donee's estate. i«o Leake, Prop. In Land, 377. 181 Harris v. Knapp, 21 Pick. (Mass.) 412; Cherry v. Greene, 115 El. 591, 4 N. E. 257; Brant v. Iron Co., 93 U. S. 326. 182 North V. Philbrook. 34 Me. 532; Benesch v. Clark, 49 Md. 497; Liefe y. Saltingstone, 1 Mod. 189. § 19-5) CLASSES OF POWERS A3 TO APPOINTEEg. 311 It is not necessary that the donee of a power have also an estate in the land on which the power is to operate, but he may have, and in such case the power is said to be connected or coupled with an interest. Unless he has some estate, he will not have a power coupled with an interest, although he does have an interest in the execution of the power.^®' When the estates to be created by the execution of power must take effect out of the interest in the lands held by the donee, the power is said to be appendant or ap- purtenant; for example, where one having a life estate is given, a power to make leases which must tak;e effect w^holly or in part out of his own estate.^** But, when the execution of the power will not affect the donee's estate in the lands, the power is said to be in gross, as w'hen the owner of a life estate has a power to create estates to begin after the termination of his estate.^*' 194. POWERS COLLATERAL,, OR NAKED POWERS— A po'wer raay be given to a donee "w^lio has no in- terest in the land apart from the power. Such pow^ers are called powers collateral, or naked pow^ers. A power collateral, or a naked power, or a power unconnected with an interest, is a power given to a person who had no interest in the land at the time of the execution of the instrument creating the power, and to whom no estate is limited by that instrument.^ ^' SAME— CLASSES OF POWERS AS TO APPOINTEES. 195. Pow^ers are divided, with reference to the persons who may be appointees, into (a) General powers (p. 312). (b) Special powers (p. 312). 188 Hunt V. Rousmanier's Adm'rs, 8 Wheat. 174; Osgood v. Franklin. 2 Johns. Ch. (N. Y.) 1; Coney v. Sanders, 28 Ga. 511. 184 Wilson V. Troup, 2 Cow. (N. Y.) 195; Maundrell v. Maundrell, 10 Ves. 246. 18B Wilson V. Troup, 2 Cow. (N. Y.) 195; Thorington v. Thorington, 82 Ala. 489, 1 South. 716. 186 Taylor v. Eatman, 92 N. C. 601; Potter y. Couch, 141 U. S. 29G. 11 Sup. Ct 1005. 312 ESTATES A9 TO TIME OF ENJOYMExNT FUTURE ESTATES. (Ch. 11 196. GENERAL POWERS— Under a general power, the donee can make any one he chooses an appointee. A general power is one in which the donee is given a right to app)oint the estates to any one he may choose. Such power is equal to the ownership of the fee, because the donee can convey a fee simple.^ *^ It should be noted, however, that a general power may be held in trust; that is, the donee may have the power of convey- ing a fee simple, but the conveyance will be for the benefit of other persons.^^* These are not called general powers, but powers in trust Under a general power, any person may be an appointee. For instance, the donee may appoint himself, a husband may ap- point his wife, and so on.^" 197. SPECIAL POWERS— Under a special power, the donee can make only certain designated persons ap- pointees. Special powers are (a) Exclusive when the donee must select one out of a class, and appoint to him. (b) Nonexclusive when the donee can appoint to all of the class of persons designated. A special or particular power is one in which the appointment can be made to only certain specified persons or classes of per- sons."" Under a particular power, the appointment may be to a trustee for the benefit of the appointee, but otherwise the donee Is limited, in his appointment under such a power, to the persons or class designated.^'^ In such an instrument an authority to 187 Wrl^rht V. Wright, 41 N. J. Eq. 382, 4 Atl. 855; Com. v. Williams' Ex'rs, 13 Pa. St 29; Roach v. Wadham, 6 East 289. 188 piowell V. Tyler, 91 N. C. 207; Blanchard v. Blanchard, 4 Hun, 287. 180 2 Washb. Real Prop. (5th Ed.) 714; New v. Potts, 55 Ga. 420. But see Shanlv V. Dewitt 44 Ohio St 237, 6 N. E. 25.5. 190 Wright V. Wright 41 N. J. Eq. 382, 4 Atl. 855. And see, as to powers under the New Yorli statute, which establishes a new classification, Jennings V. Con boy, 73 N. Y. 230; Coleman v. Beach, 97 N. Y. 545. 101 Hood V. Haden, 82 Va. 588; Varrell v. Wendell, 20 N. H. 431; Stuyve- sant V. Neil, 07 How. Prac. (N. Y.) 10; In re Farucombe's Trasts, 9 Ch. Div. 052. § 197) SPECIAL POWERS. 813 appoint to the children of the donor does not include the ji^rand- children,^"^ unless some special circumstances show that such must have been the intention; as, for instance, where there are no chil- dren living.^"* A power to appoint "to relations" would include only those relatives who could take under the statute of distribu- tions, but the word "issue" would include all descendants of the donor. ^®* If the power is to select one or more of certain designated per- sons, and to appoint the whole estate to him, the power is said to be exclusive. But if part of the estate may be given to each of the persons named, or the power is only to determine the amount which each shall receive, the power is nonexclusive. For example, a power to appoint "amongst the testator's children" would be a nonexclusive power, and the donee would only have a discretion as to the amount which each should receive.^'" Under a nonex- clusive power, where a number of persons or a class are named as donees, if no appointment is made the court will give the estate to all the donees, in equal shares, according to the maxim that equality is equity.^®' Until appointment, the uses revert to the grantor, unless otherwise provided,^^^ as would be the case when the estate is given to the donee for life, with a power of appoint- ing the remainder.^®* 182 Horwitz V. Norrls, 49 Pa. St. 213; Carson v. Carson, Phil. Eq. (N. C.) 57; Little v. Bennett, 5 Jones, Eq. (N. C.) 166. 188 Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045. 18* Dralie v. Dralie, 56 Hun. 590, 10 N. Y. Supp. 183; Glenn v. Glenn, 21 S. C. 308; Varrell v. Wendell, 20 N. H. 431. 188 Walsh V. Wallinser, 2 Russ. & M. 78; Gainsford v. Dunn. L. R. 17 Eq. 405. See for applications, Wilson v. Piggott, 2 Ves. Jr. 351; Rlcketts v. Loftus, 4 Younge & C. 519; Paske v. Haselfoot, 33 Beav. 125. If only one child, the whole could be appointed to that child. Bray v. Bree, 2 Clark & F. 453. As to Jllusoi-y appointments, see BurreU v. Burrell, Amb. 6G0; Butcher v. Butcher, 1 Ves. & B. 79. 196 Withers v. Yeadon, 1 Rich. Eq. Cas. (S. C.) 824; Harding v. Glyn, 1 Atk. 469; In re Phene's Trusts, L. R. 5 Eq. 346; Casterton v. Sutherland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244. See, also, Faulkner v. Wyn- ford, 15 Law J. Ch, 8. 187 Ante, p. 266. See Lambert v. Thwaites, L. R. 2 Eq. 151. 18 8 Ward V. Amory, 1 Curt. 419, Fed. Cas. No. 17,146; Burleigh v. Clough^ 62 N. H. 267. 814 ESTATES AS TO TIME OP ENJOYMENT FUTURE ESTATES. (Ch. 11 SAME— EXECUTION. 198. The execution of a power is subject to the following conditions: (a) It must be by the donee or donees named (p. 314). (b) It must be in the form provided (p. 315). (c) It must be at the time required (p. 317). (d) The defective execution of a special power will be aided in equity (p. 318). (e) The execution of a power in trust may be com- pelled (p. 318). (f) When the execution of a power is excessive, the ex- cess will be void (p. 318). Who may Execute a Power, In general, no one can execute a power as donee unless he has capacity to transfer real estate; but it is held that an infant may execute a naked power in which he has no beneficial interest; that is, one which is to be exercised for the benefit of another.^®* Such powers are called powers simply collateral. And a married woman may execute any power as to real estate without the consent of her husband; and, before the married woman's property acts, this was the usual mode of conferring upon a married woman a right to deal with her separate estate. '^°° Under a will creating powers, if no donees are named, the executors may execute the power.*°^ If two or more donees are named in the instrument creating the power, all must join in the execution,*"* unless otherwise provided. 199 Thompson v. Lyon, 20 Mo. 155. But cf. In re Cardross' Settlement, 7 Ch. Div. 728. 200 Claflin v. Van Wagoner, 32 Mo. 252; Rush v. Lewis, 21 Pa. St. 72; Ladd V. Ladd, 8 How. 10. 201 Mandlebaum v. McDonell, 29 Mich. 78; Silverthorne y. McKinster, 12 Pa. St. 07. Cf. Doyley v. Attorney General, 4 Vin. Abr. 485, pL 16, where a power was executed by the court 202 Shelton v. Homer, 5 Mete. (Mass.) 402; Wilder v. Ranney, 95 N. Y. 7; Hertell v. Van Buren, 3 Edw. Ch. (N. Y.) 20. Where executors are donees, less than all may execute if one or more refuse to act. Bonifaut v, Green- field, Cro. Eliz. 80; Zebach v. Smith, 3 Bin. (Pa.) 69. § 198) EXECUTION OF POWERS. 815 But such powers survive, and, after the death of one of the donees, may be executed by the survivor,'**" unless the power is pjiven to the several donees by name, showing that personal trust and con- fidence is imposed in them,=*°* and even in these cases the power may he exercised by the survivors, if coupled with an interest.'^"' If a power is given to executors nominatim, they may appoint under the power, though they have resigned as executors.^"' Where no personal trust or confidence is imposed on the donee of a power, it may be executed by attorney;^" otherwise the donee must use his own discretion in making the appointment.^"' The mere execution of an instrument may in all cases be by attorney.^"" A general power may be transferred, and, when a power is given to a person and his assigns, it may be executed by his assigns in fact or in law.'-*^" Form of JExecution. At common law no particular form of execution of a power was required. It might be by a simple writing.*" This, however, is now changed by statute in several states, and the execution must be by deed or will, according to the provisions of the instrument creating the power, and accompanied by the same formalities as are required for a conveyance of realty."* The form prescribed SOS Philadelphia Trust, etc., Co. v. Llppincott, 106 Pa. St 295; Franklin V. Osgood, 14 Johns. (N. Y.) 527; Lee v. Vincent, Oro. Eliz. 26; HoueU v. Barnes, Cro. Car. 382; Lane v. Debenham, 11 Hare, 188. 204 Peter v. Beverley, 10 Pet 532, 563; Franklin v. Osgood, 14 Johns. (N. Y.) 527; Tainter v, Clark, 13 Mete. (Mass.) 220; Anon., 2 Dyer, 177a, pi. 32. 208 Franklin v. Osgood, 14 Johns. (N. Y.) 527; Gutman r. Buckler, 69 Md. 7, 13 Atl. 635; Parrott v. Edmondson, 64 Ga, 332. 206 Clark v. Tainter, 7 Gush. (Mass.) 567; Tainter v. Clark, 13 Mete (Mass.) 222. 207 Howard v. Thornton, 50 Mo. 291; Bales v. Perry, 51 Mo. 449. 208 Graham v. King, 50 Mo. 22; Hood v. Haden, 82 Va. 588. 209 Singleton v. Scott 11 Iowa, 589; Bales v. Perry, 51 Mo. 449. 210 Pardee v. Llndley, 31 lU. 174; Strother v. Law, 54 HI. 413; Druid Park Heights Co. of Baltimore City y. Oettinger, 53 Md. 46; CoUins v. Hopkins, 7 Iowa, 463. 211 Ladd v. Ladd, 8 How. 10, 30; Christy v. PuUiam, 17 111. 59. ai2 4 Shars. & B. Lead. Cas. Real Prop. 46; 1 Stim. Am. St. Law, § 1659. 81(3 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Cll. 11 bj thp instrument creatinj? the power must be strictly observed. '^"^ For instance, a power to be executed by deed cannot be appointed by will, nor one to be executed by will be appointed by deed during the donee's lifetime."* The execution of a power by will is rev- ocable at any time during the donee's life.^^° If the first execu- tion of a power is void, it may be disregarded, and there can be another execution. ^^* In an instrument appointing an estate under a power an inten- tion to execute the power must appear,^^^ but the power need not be reiited or referred to.^^' Many questions arise in considering^ wills, whether the testator has exercised powers of which he was the donee, or has merely disposed of his estates. For example, a devise of "all the estate which the testator has power to dispose of" would operate as an exercise of powers held by the testator.^^' The question, however, being one of construction, cannot be gone into in detail, but a number of the cases will be found in the notes.^^° A power will be held to be executed in any case where the instni- ment can operate in no other way; as where a testator has a power 213 Hacker's Appeal (Pa, Sup.) 15 Atl. 500. Cf. Morse v. Martin, 34 Beav. 500. 214 Moore v. Dimond, 5 R. L 121; Weir v. Smith, 62 Tex. 1; Porter v.. Thomas, 23 Ga. 467. 216 1 Sujjd. Powers, 46L 218 1 SuKd. Powers, 855. 217 Blake v. Hawkins, 98 U. S. 815; Blapge v. Miles, 1 Story, 426, Fed. Cas. No. 1.479; Hutton v. Bankard, 92 N. Y. 295; South v. South, 91 Ind. 221. 218 Warner v. insurance Co., 109 U. S. 357, 8 Sup. Ct. 221; White v. Hicks, 83 N. Y. 383; Munson v. Berdan, 35 N. J. Eq. 376; Roach v. Wadham, 6- East, 289. 219 Lee V. Simpson, 134 U. S. 572, 10 Sup. Ct 631; Cowx v. Foster, 1 Johns. & H. 3U; Ferrier v. Jay, L. R. 10 Eq. 550; Bruce v. Bruce, L. R. 11 Eq. 371. See, also. Walker v. Mackie, 4 Russ. 76; Blagge v. Miles, 1 Stoi-y, 426, Fed. Cas. No. 1,479. 220 Funk V. Eggleston, 92 111. 515; Amory v. Meredith, 7 Allen (Mass.) 397; Williard v. Ware, 10 Allen (Mass.) 263; Bangs v. Smith, 98 Mass. 270; Cum- Bton V. Bartlett, 149 Mass. 243, 21 N. E. 373; Bingham's Appeal, 64 Pa. St 845; Burleigh v, Clough, 52 N. H. 267; Maryland Mut Ben. Soc. v. Clen- dinen, 44 Md. 429; HoUister v. Shaw, 46 Conn. 248; Bilderback v. Boyce, 14 S. C. 528; Andrews v. Emmot, 2 Brown, Ch. 297; Lewis v. Lewellyn, Turn. & R. 104; Grant v. Lyuam, 4 Russ. 292; Deun v. Roake, 6 Bing. 475; C 198) EXECUTION OF POWERS. 317 over certain land, but no estate therein, a devise of the land will be treated as an appointment under the power."^ Where another estate is limited until the power is executed, an appointment will put an end to such prior estate "" Time of Execution. When, from the object for which a power is created, or from express direction in the instrument creating the power, it must be exercised within a certain time, any execution after that time will be void."'' While this is the rule, there are broad exceptions. The courts look for the main purpose of the donor, and wb«^n they conclude that the sale or other appointment directed by him was his main purpose, and that the time was inserted only as a matter of choica or preference, they have sustained an execution of the power at some other time than the one directed."* When no time is prescribed for the execution of the power, it may be exe- cuted at any time which falls within the general purpose."' Thus an execution at any time during the donee's life has been held go^^d "• Pomfret v. Ferring, 5 De Gex, M. & G. 775; Thornton v. Thornton. L. R. 20 Eq. 599; Ames v. Cadogan, 12 Ch. Div. 868; Nannock v. Horton, 7 Ves. 392: Napier v. Napier, 1 Sim. 28; Webb v. Honnor, 1 Jac. & W. 352; In re Goods of Merritt, Swab. & T. 112; In re Teape's Trusts, L. R. 16 Eq. 442. 22 1 Sir Edward Clere's Case, 6 Coke, 17b; Standen v. Stauden, 2 Ves. Jr. 589; Maundrell v. Maundrell, 10 Ves. 246. 223 HoUman v. Tigges, 42 N. J. Eq. 127, 7 Atl. 347; Shearman's Adm'r v. Hicks, 14 Grat (Va.) 96; Doe v. Jones, 10 Bam. & C. 459; Jones v. Winwood, S Mees. & W. 653. For cases of lapse, see In re Harries' Trust, 1 Johns. Eng. Ch. 199; Chamberlain v. Hutchinson, 22 Beav. 44i; In re Davies' Trusts. L. R. 13 Eq. 163; Eales v. Drake, 1 Ch. Div. 217. 225 Wilkinson v. Buist, 124 Pa. St. 253, 16 Atl. 856; Fidler v. Lash, 125 Pa. St 87, 17 Atl. 240; Harvey v. Brisbin, 50 Hun, 376, 3 N. Y. Supp. 676; Harmon v. Smith, 38 Fed. 482. So the power must not be exercised before the time directed. Booraem v. Wells, 19 N. J. Eq. 87; Henry v. Simpson, 19 Grant (N. C.) 522; Jackson v. Ligon, 3 Leigh (Va.) 16L 224 Snell's Ex'rs v. Snell, 38 N. J. Eq. 119; Shaker's Appeal, 43 Pa. St. 83; Hale V. Hale, 137 Mass. 168; Hallum v. SiUiman, 78 Tex. 347, 14 S. W. 797. 226 Moores v. Moores, 41 N. J. Law, 440; Cotton v. Burkelman, 142 N. Y. 160, 36 N. E. 890. 226 1 Sugd. Powers, 330; Richardson v. Sharpe, 29 Barb. (N. Y.) 222; Bakewell v. Ogden, 2 Bush (Ky.) 265. 318 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 Defective Execution. When a general power is defectively executed, equity will not aid the appointee, unless a valuable consideration has been paid,^" but, where there are defects in the execution of a special power, the aid of a court of equity will be given,"* if there has been a sub- stantial compliance, and such defects as the omission of the requi- site number of witnesses will be supplied; "» and so, where the execution has been by will instead of by deed, it will be held good.2»» Compelling Execution. The execution of a power can be compelled only where the power is mandatory, or is a power in trust;2"that is, a power held in trust, without any discretion as to its exercise, and in which the donee has no beneficial interest, will be enforced in equity in con- formity with the trust, although not executed by the donee of the power. Thus where there is a power given to trustees to sell property and apply the proceeds upon trusts, and the trustees die without executing the power, the court will order a sale, and com- pel the heirs to join in the conveyance."' A court of equity will not execute or control a discretionary power."' Excessi/ve Execution. The execution of a power may be excessive as to the object, as when, under a special power, estates are given to some who cannot 227 Schenck V. EUlngwood, 3 Edw. Ch. (N. Y.) 175; Bradlsh r. Gibbs, 8 Johns. Ch. (N. Y.) 523; Beatty v. Clark, 20 Cal. 11; Morgan v. Mllman, 3 De Gex, M. & G. 24. See, however, Blove v. Sutton, 3 Mer. 237; Sayer'v. Sayer, 7 Hare, 377, affirmed Innes v. Sayer, 3 Macn. & G. 606; Pepper's Will, 1 Pars. Eq. Cas. 436. 228 BaiT V. Hatch, 3 Ohio, 527; Mutual Life Ins. Co. v. Everett, 40 N. J. Eq. 345, 3 Atl. 126; Clifford v. Clifford, 2 Vem. 379; Fothergil v. Fothergil, 1 Eq. Cas. Abr. 222, pi. 9; Jackson v. Jackson, 4 Brown, Ch. 462; Moodle'v. Reld, 1 Madd. 516. See, also, Johnson v. Touchet, 37 Law J. Ch. 25. 229 Wilkes V. Holmes, 9 Mod. 485; Sergeson v. Sealey, 2 Atk. 412. Or want of a seal. Smith v. Ashton, Ch. Cas. 263. See, also, Piggot v. Penrice. Prec Ch. 471. 230 Toilet v. Toilet, 2 P. Wms. 489; Sneed v. Sneed, Amb. 64. 281 Smith V. Kearney, 2 Barb. Cb. (N. Y.) 533; Doe v. Ladd, 77 Ala, 223. 282 Sugd. Powers, 588. »88 Sugd. Powers, 258, 659. 198) EXECUTION OP POWERS. 319 be donees ;2" or it may be excessive as to amount of subject-matter, when more is given than the donee had power to appoint."'' A power to sell does not authorize the donee to mortgage, in the absence of expressions showing such intention."** And a power to mortgage does not authorize a sale,"^ but the mortgage may be in the usual form, and might be by a trust deed or a mort- gage with a power of sale, if that was the usual mode of effect- ing a mortgage."* A power to appoint a fee includes power to create lesser estates, because such a power is equal to ownership in fee, and the owner of a fee simple may create any estate he chooses."" When the excess can be separated, the execution as to the remainder will be valid. For instance, in case of excessive execution as to the objects of the power, the estates appointed to those who could not take as donees would be void, and the others good."" So a lease for 40 years under a power to lease for 21 would be good as a lease for 21 years, the excess only being void.^" If conditions are improperly annexed to the appointment, the con- ditions will be treated as void, and the appointment freed from them."" «84 Alexander v. Alexander, 2 Ves. Sr. 640; Sadler r. Pratt, 5 Sim. 632. 23 5 Commissioners of Knox Co. v. Nichols, 14 Ohio St 260. See for execu- tions held good, Whitlock's Case, 8 Coke, 69b; TroUope v. Linton, 1 Sim. & S. 477; Talbot v. Tipper, Skin. 427; Thwayles v. Dye, 2 Vem. 80. 288 Green v. Claiborne, 83 Va. 386, 5 S. E. 376; Norris v. Woods, 89 Va. 873, 17 S, B. 552; Smith v. Morse, 2 Cal. 534. But see Lancaster v. Dolan, 1 Rawle (Pa.) 231; Zane v. Kennedy, 73 Pa. St 182. 28 7 1 Sugd. Powers, 514. 28 8 Wilson V. Troup, 7 Johns. Ch. (N, Y.) 25; Jesup v. Bank, 14 Wis. 331; Bolles V. Munnerlyn, 83 Ga, 727, 10 S. E. 365. A power to mortgage will au- thorize a renewal of a previous mortgage. Warner v. Insurance Co., 109 U. S. 857, 8 Sup. Ct. 221. 289 WiUiams v. Woodard, 2 Wend. (N. Y.) 487; Hedges v. Riker, 5 Johns. Ch. (N. Y.) 163. But see Seymour v. Bull, 8 Day (Conn.) 388; Hubbard v. Elmer, 7 Wend. (N. Y.) 446. 240 2 Sugd, Powers, 66. Proper appointees will take the whole. Alexander V. Alexander. 2 Ves. Sr. 640; Sadler v. Pratt 6 Sim. 632; In re Kerr's Trusts, 4 Ch. Div. 600. 241 Sinclair v. Jackson, 8 Cow. (N. Y.) 543; Powcey v. Bowen, 1 Ch. Cas. 23; Campbell v. Leach, Amb. 740. 24 2 2 Sugd. Powers (Ed. 1856) 84; Blomfield T. Eyre, 5 a B. 713. See, how- ever, In re Brown's Trust, L. R. 1 Eq. 74. 320 ESTATES A3 TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 SAME— RIGHTS OF CREDITORS. 199. Creditors of the donee of a power have no rights in the power, except: EXCEPTION — When the power is general, creditors may enforce their claims against a voluntary ap- pointee. 200. Creditors of the appointee may enforce their claims against his estate after appointment to him, but cannot compel the execution of the pow^er, except: EXCEPTION — In some states, by statute, creditors may compel the execution of a benefllcial pow^er. The donee of a power has no estate in the lands subject thereto, and his interest can be reached by his creditors only in equity.^*" Under a special power in which the donee has no beneficial interest, his creditors have no ri^hts.^** Most cases hold that creditors of the donee may levy on lands in the hands of a voluntary appointee under a general power,^*'' though the correctness of the rulinga has been doubted.^*® Creditors of the appointee under a power may levy on the lands after the power is executed, but they can- not compel an execution, even in cases of special powers.^*^ But in several states, including New York, Michigan, Wisconsin, and Minnesota, it is provided by statute that the execution of a bene- ficial power — that is, a special power under which the debtor could compel an appointment in his favor — may be compelled by the creditors of the one entitled to the appointment.''*' «48 Holmes v. Cogrhlll, 12 Ves. 206. 2*4 Johnson v. Gushing, 15 N. H. 298. 2*6 Clapp V. In;^raham, 12G Mass. 200; Knowles v. Dodge, 1 Mackey (D. O.) G6; Wales' Adm'r v. Bowdish's Ex'r, 61 Vt. 23, 17 Atl. lUOO; Lassells T. Com- wallis, 2 Vera. 465; Holmes v. Coghill, 12 Ves. 206. 2*« Com. V. Duffield, 12 Pa, St. 277; Thorpe v. Goodall, 17 Ves. 888. «4T 2 Sugd. Powers, 102. 2*« Schars. & B. Lead. Cas. Real Prop. 28; 1 Stim. Am. St Law, § 1657. J 201) DESTRUCTION OF F0WEB8. 821 SAME— DESTRUCTION. 201. Powers may be destroyed (a) By execution. (b) By death of one whose consent to the execution Is required. (c) By alienation of the estate to which the power is appendant. (d) By release, unless the power is simply collateral. (e) By cesser. A power is like a conveyance of land, and cannot be revoked by the donor after it has been created, nor will his death put an end to the right to exercise it."* A power is, of course, extinguished by its execution, and any furi;her power reserved in the instru- ment of execution would not be the same, but a new power.^'*'' The death of one whose consent to the execution of the power is required destroys the power.-" Where a power is appendant, the alienation of the estate to which the power is annexed destroys the power, in whole or in part, because the donee will not be per- mitted to execute the power in derogation of his conveyance of the estate."* So a partial alienation of the estate might suspend or qualify the power; as, where the donee has made a lease, an estate created by a subsequent execution of the power would be postponed until the termination of the lease."* A power in gross, 24 9 Wilbum V. Spofford, 4 Sneed (Teim.) 698; Armstrong v. Moore, 59 Tex. 646. 360 Hele V. Bond, Prec. Ch. 474; Hatcher v. Curtis, Freem. Ch. 61. 2 51 Kissam v. Dierkes, 49 N. Y. 602; Powles v. Jordan, 62 Md. 499. But see Leeds v. Wakefield, 10 Gray (Mass.) 514; Sohier v. Williams, 1 Curt. 479, Fed. Cas. No. 13,159. 252 Wilson V. Troup, 2 Cow. (N. Y.) 195; Farkes v. White, 11 Ves. 209; Bringloe v. Gk»odson, 4 Bing. N. O. 726. So a recovery extiuguishcs. Smith V. Death, 5 Madd. 371; Savile v. Blacket, 1 P. Wms. 777; or a fine, Bickloy V. Guest, 1 Russ. & M. 440; Walmsley v. Jowett, 23 Eng. Law & Eq. 353. And see Hole v. Escott, 2 Keen, 444. 2B3 Noel V. Henley, McCleL & Y. 302. REAIi PROP. — 21 322 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 howeyer, is not affected by an alienation of the donee's estate.^"* And a power simply collateral cannot be destroyed by the donee.^" All other powers may be released to one having a freehold in pos- session, reversion, or remainder, and so destroyed.""* The doc- • trine of merger, however, does not apply to powers, because the donee may have both an estate and a power.*" When the object for which a special power is created has failed, the power is said to be destroyed by cesser."* RULE AGAINST PERPETUITIES. 202. "No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within 21 years after some life in being at the cre- ation of the interest."^* It has already been stated that at common law freeholds could nut be created to commence in futuro, and the exceptions to this rule which have grown up have been discussed;*®" but some forms of such limitations are invalid if made to commence at a too remote period. This is called the rule against perpetuities, but unfortunately so, for a better designation would be the rule "against remoteness." The misnomer has in all probability given rise to much of the confusion which exists in relation to the rule. What is known as 2 6* 1 Sugd. Powers, 85; Maundrell v. Maundrell, 10 Ves. 246b. But see Doe V. Britain, 2 Bam. & Aid. 98. 2 68 A power simply collateral is "a power to a person not having any In- terest in the land, and to whom no estate is given, to dispose of, or charge the estate in favor of some other person." 1 Sudg. Powers, 45. See West v. Berney, 1 liuss. & M. 431. 256 D'Wolf V. Gardiner, 9 R. I. 145; Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 58'J; Albany's Case, 1 Col^e, 110b. 2 57 Benesch v. Clark, 49 Md. 497; Henderson v. Vaulx, 10 Yerk. (Tenn.) 30. 2 08 Hetzel v. Barber, 69 N. Y. 1; Shai-psteen v. Tillou, 3 Cow. (N. Y.) 651; Smith's Lessee v. Folwell, 1 Bin. (Pa.) 546; Bates v. Bates, 134 Mass. 110. But see Ely v. Dix, 118 111. 477, 9 N. E. 62 (a partial failure). 250 Gray, Perp. 144; Paxson, J., In Smith's Appeal, 88 Pa. St. 493. For the origin and history of the rule against perpetuities, see Gray, Perp. c. 5. 280 See ante, pp. 133, 284. I 202) RULE AGAINST PERPETUITIES, 323 the rule against perpetuities has nothing to do with restraints on alienation, as might be supposed, though many statutes and cases have so treated it. It is based entirely on public policy, and its only object is to prevent the creation of estates which are to vest in interest at a remote time. That this is true will be seen from the fact that interests may be too remote, though they are capable of a present, alienation."*^ The rule against perpetuities applies only to estates which are limited to vest on the happening of a contingency. This con- tingency must happen, if at all, within the prescribed period, or the estate so limited is void.^''^' The fact that it may and does happen within such time is not sufficient to make the limitation valid, if it might have happened beyond the prescribed time.^'* An estate may be limited, according to this rule, after any number of lives in beiug.^"* The only restriction suggested is that the number must not be so great that evidence of the termination of the lives cannot be obtained.^®^ In the usual form in which the nile is stated, the period of gestation is added to 21 years, but this is not strictly accurate. The same effect is reached by holding that a child in ventre sa mere is in being, so as that an estate- can vest in it.=^«« In this way it is possible that three periods of" gestation may occur in a limitation which does no«t violate the- rule.^®^ The term of 21 years after the dropping of a life whicb is allowed by the rule may be in gross without reference to the 261 Gray, Perp. § 140. 282 Jee V. Audley, 1 Cox, Ch. 324; Abbiss v. Burney, 17 Ch. Dlv. 211; In re Frost, 43 Ch. Div. 246; In re Hargreaves, Id. 401; Porter v. Fox, 6 Sim. 485; Doe V. Chains, 18 Q. B. 224, 231. See Sawyer v. Cubby, 146 N. Y. 192. 40 N, E. 869; Lloyd v. Carew, Show. Pari. Cas. 137. For a longer period made possible under statutes affecting esta/tes tail, see 1 Dembltz, Land Tit 118. 268 Stephens v. Evans' Adm'x, 30 Ind. 39; Jee v. Audley, 1 Cox, Ch. 324; Lett V. Randall, 3 Smale & G. 83. Contra, Longhead v. Phelps, 2 W. Bl. 704. 264 Or after the lives of unborn persons, if the vesting is during the lives of persons in being. Evans v. Wallver, 3 Ch. Div. 211. 266 Thellusson v. Woodford, 11 Ves. 112; Low v. Burron, 3 P. Wms. 262. See Scatterwood v. Edge, 1 Salk. 229. 266 Gray, Perp. § 220; Storrs v, Benbow, 3 De Gex, M. & G. 390; Long v. Blaekall, 7 Term R. 100. 287 "Suppose, for instance, a devise to testator's children for life, on their fleath to be accumulated till the youngest grandchild reaches twenty-one. 324 ESTATES A3 TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 minority of any person."'* Therefore a limitation of an estate after a term of 21 years is good."® In cases of contingent remain- ders, however, tlie time within which they must vest is limited to the duration of lives in being, and the period of 21 years additional is not allowed."" The time within which an estate limited must vest under the nile is computed from the death of the testator, when the limitation is by will,"^ and, v.hen by deed, from the execution of the deed."^ The rule is satisfied if the estate vests within this time, though the interest so created does not terminate until a later time.'^' The rule against perpetuities is not one of construction, but it is applied to a devise or a deed after the instrument limiting the estates is construed, and is applied regardless of the intention ; for the rule is not intended to effect the intention, but more often de- feats it."* It is only in cases of ambiguous construction that it is presumed that the intention was to limit an estate which would not be void as contravening the rule.*^' and then to be divided among all the grandchildren then living, and the Issue then living of any deceased grandchild. The testator leaves a posthumous child, who dies, leaving one child, A., born, and another, B., en ventre sa mere. B. Is born, and reaches twenty-one, but before he does so A. dies, leaving his wife enceinte, who gives biith to a child after B. reaches twenty- one. Here we have (1) the period until the testator's child Is born; (2) the life of such child; (3) the period after the death of such child until B. is born; (4) the minority of B.; (5) the period from the time when B. reaches twenty-one until A.'s child Is born. Here we have a life, a minority of twen- ty-one years, and three periods of gestation." Gray, Peip. § 222. A".d com- pare Long V. Blackall, 7 Term R. 100; Thellusson v. Woodford, 11 Ves. 112. 28 8 Beard v. Westcott, 5 Taunt. 393; Cadell v. Palmer, 1 Clark & F. 372. But see Mayor, etc., of New York v. Stuyvesant's Heirs, 17 N. Y. 34. 269 Gray, Perp. § 225; Low v. Bun-on, 3 P. Wms. 2G2. See Stephens v. Stephens, Cas. t. Talb. 228; Avern v. Lloyd, L. R. 5 Eq. 383. 270 Gray, Perp. § 294; Cattlin v. Brown, 11 Hare, 372. 271 Southern v. WoUaston, 16 Beav. 27G. «7 2 McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652. 27 8 Otis V. McLellan, 13 Allen (Mass.) 330; Mlnot v. Taylor, 129 Mass. 160; Heald v. Heald, 56 Md. 300. But see Slade v. Patten, 68 Me. 380. 27 4 Gray, Perp. § 629; Maule, J., In Dungannon v. Smith, 12 Clark & F. 546; James, L. J., in Heasman v. Pearse, 7 Ch. App. 275. «Te Post V. Hover, 33 N. Y. 593; Du Bois v. Ray, 35 N. Y. 162. § 203) RULE AGAINST PERPETUITIK8. 325 Effect of Limitations too Remote. Wlien the limitation of a future estate is void on account of the rule against perpetuities, the prior estates take effect, as if there had been no subsequent limitations.*^' But estates which are to take effect after limitations that are too remote, if vested, or if they become vested within the time prescribed by the rule, will not be affected by the void limitations.*^^ In cases where a good limitation of an estate is made, and a subsequent modification is added which would make the estate void for remoteness, the modifi- cation will be rejected, and the estate will stand as under the original limitation.*^* When there is no disposition in a will, except the void limitation, the heirs taka*'" SAME— ESTATES SUBJECT TO THE RULE. 203. The rule against perpetuities applies to all estates and interests in land, legal or equitable, but does not include (a) Vested interests. (b) Present interests. (c) PoTvers -which cannot be exercised beyond the time allo-wed by the rule. EXCEPTIONS — The following cases are recognized ex- ceptions to the rule: (a) Rights of entry for condition broken. (b) Gifts to a charity, -with a remote gift over to an- other charity. «T6 Proprietors of Church In Brattle Square v. Grant, 3 Gray (Mass.) 14L'. 277 Gray, Perp. § 251. But see Proctor v. Bishop of Bath «& Wells, 2 H. Bl. 358. So some of the limitations may vest in time, and be valid th )ug'i others fall. "Wilkinson v. Duncan, 30 Beav. Ill; Cattlin v. Brown, 11 Hare. 872; Picken v. Matthews, 10 Ch. Div. 264; Hills v. Simonds, 125 :si;.ss. 53 >. But see Pearks v. Moseley, 5 App. Gas. 714. 27 8 siade v. Patten, 68 Me. 380; Ring v. Hardwick, 2 Beav. 352; Gove v. Gove, 2 P. Wms. 28. Otherwise when the first limitation is not absolute. Whitehead v. Rennett, 22 Law J. Ch. 1020. 27 9 Fosdick V. Fosdick, 6 Allen (Mass.) 41; Wainman v. Field, Kay. 507. 326 ESTATES AS TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 The rule against perpetuities does not apply to vested interests, but only to those which are contingent.^*" Covenants running with the land are present interests, and therefore do not violate the rule.-®^ If property is vested absolutely in a person, and a con- dition is added postponing his enjoyment, such condition will be void for repugnancy if for a longer period than the minority of the person entitled to the property. Such cases have nothing to do with the rule against perpetuities.'^®" We have already seen that reversions and vested remainders are vested interests, and therefore they are not within the rule against perpetuities.''*' There is considerable con- flict as to whether contingent remainders are within the rule. It is argued that they are not within the rule, because they may be destroyed by the tenant of the preceding estate. But the better opinion is that they are subject to the rule. This is the case under statutes which prevent the destruction of such remainders by acts of the tenant of the particular estate.^** Remainders after estates tail are not too remote, because they may be barred by the tenant in tail at any time.'^*" A great many cases have arisen where there were limitations over "on failure of issue." At common law the words are held to mean an indefinite failure of issue, and not a failure at the death of the person named. '^^^ The tendency of the later cases is away from this rule,**^ and in some states it has been changed by stat- 2 80 Gray, Perp. § 205. S81 Tobey v. Moore, 130 Mass. 448; Ex parte Ralph, 1 De Gex, 219. 282 Daniels v. Eldredge, 125 Mass. 356; Josselyn v. Josselyn, 9 Sim. 63; Saunders v. Vautier, 4 Beav. 115. In re Ridley, 11 Ch. Div. 045. But see Herbert v. Webster, 15 Ch. Div. 610. See Lealie v. Robinson. 2 Mer. 303. 2 83 Gray, Perp. § 205. 2 84 Gray, Perp. §§ 281-280, and see ante, p. 2M. 285 Goodwin v. Clarli, 1 Lev. 35; Xlcolls v. Sheffield, 2 Brown, Ch. 215. See Duke of Norfolk's Case, 3 Ch. Cas. 1. And cf. Bristow v. Boothby, 2 Sim. & S. 465. 2 86 Chadock v. Cowley, Cro. Jac. 095; Burrough v. Foster, 6 R. I. 534; Ct Ashley v. Ashley, 6 Sim. 358. But otherwise as to leaseholds, Forth V. Chapman, 1 P. Wms. 603; or legacies, Nichols v. Hooper, Id. rj8. And see Hughes v. Sayer, Id. 534. 287 Anderson v. Jackson, 10 Johns. (N. Y.) 882; Benson v. Corbin, 145 N. Y. 851, 40 N. E. 11; Abbott v. Essex Co., 18 How. 202; Greenwood v. Verdon, § 203) RULE AGAINST PBRPETmTIES. 327 ute."« When the failure Is of the issue of some other person than the holder of the estate, the limitation over is an executory devise, and so void in cases of indefinite failure.^^*' But, if the remain- der is given to another on the failure of issue of the first taker, a limitation after an indefinite failure is construed to give him an estate tail, and the remainder after it therefore does not violate the rule against perpetuities. ==»° In any case where a definite failure of issue of a living person is meant, limitations over are hot within the rule, because they must take effect at the end of a life in being.^®^ When a remainder limited in a will is void on account of this rule, it will, if possible, be construed to give an estate tail in the first taker, as being as near the testator's real intention as pos- sible. This is called the cypres doctrine of construction."^ It is often stated that a contingent remainder cannot be limited to an unborn child of an unborn person. But this is believed to be inaccurate. It was founded on the exploded notion that there could not be a "possibility on a possibility." """ In the United States, rights of entry for condition broken are probably an ex- ception to the rule against perpetuities, though no sufQcient reason can be given for making the difference.^^* The rule against per petuities applies to equitable as well as to legal estates. If they 1 Kay & J. 74; Trotter v. Oswald, 1 Cox, Cli. 817; Ex parte Davies, 2 Sim. (N. S.) 114; Roe V. Jeffeiy, 7 Term R. 589; Barlow v. Salter, 17 Ves. 479. 288 1 Stim. Am. St Law, § 1415. 289 Sanders v. Cornish, Cro. Car. 230; Love v. Wyndham, 1 Mod. 50. 2 90 Tatton v. Mollineux, Moore, 809; Retherlck v. Chappel, 2 Bulst 28. 291 Gray, Perp. §§ 155-158; Davenport v. KIrldand, 156 111. 169, 40 N. E. 304; Terrell v. Reeves, 103 Ala. 264, 16 South. 54. But, contra. Child v. Baylie, Cro. Jac. 459. 2 92 Allyn v. Mather, 9 Conn. 114; Vanderplank v. King, 3 Hare, 1; Parfltt V. Hember, L. R. 4 Eq. 443; Humberston v. Humberston, 1 P. Wms. 332; Elliott V. Elliott, 12 Sim. 276; Kevern v. Williams, 5 Sim. 171. Cf. Hampton V. Holman, 5 Ch. Div. 183; Routledge v. Dorril, 2 Ves. Jr. 358; Hale v. Pew, 25 Beav. 335. But see St. Amour v. RIvard, 2 Mich. 294. 283 See Gray, Perp. §§ 287-294. Contra, that they are void, Whitby v. Mitchell, 44 Ch. Dlv. 85. 294 Brattle Square Church v. Grant, 3 Gray (Mass.) 142; Hunt v. Wright, 47 N. H. 396. Contra, Dunn v. Flood, 25 Ch. Dlv. 629. See, however, Lon don & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562. 328 ESTATES A3 TO TIME OF ENJOYMENT — FUTURE ESTATES. (Ch. 11 are vested they are not subject to the rule; otherwise they are."' The rule in fact has principally to do with cases of future uses and executory devises. A trust does not violate the rule against perpetuities because it is to continue indefinitely, if it vests within the time required, because, as has been seen, the rule against per])etuities is concerned with the vesting of estates, not with their duration."' The question of remoteness in connection with mortgages does not seem to have been raised, but Mr. Gray thinks that no good reason can be assigned why it should not apply.^" Under limitations to a class which are void because some of the persons who are to talce cannot be ascertained within the time required by the rule against perpetuities, the limitations are void as to all of the class, unless so made that the amount one is to receive is not affected by the existence of the other limitations. In the latter case those limitations will be good which can vest within the required time, and the others will be bad."^ Under limitations to a series of persons, the limitation to the first one of the series will not be rendered void by the fact that the limitations to the others are too remote.^®' Powers. The application of the rule against perpetuities to powers is stated by Mr. Gray as follows: "(1) If a power can be exercised at a time beyond the limits of the rule against perpetuities it is bad. (2) A power which cannot be exercised beyond the limits of the rule against perpetuities is not rendered bad by the fact that with- in its terms an appointment could be made which would be too remote. (3) The remoteness of an appointment depends upon its distance from its creation, and not from the exercise of the 2 95 See Abbiss v. Bumey, 17 Ch. Div. 211; Bull v. Prltchard, 5 Hare, 567; Blagrove v. Hancock, 16 Sim. 371. 29S Philadelphia v. Girard's Heirs, 45 Pa. St 9; Yard's Appeal, 64 Pa. St 95. Contra, Slade v. Patten, 68 Me. 380. 2 97 Gray, Perp. §§ 562-571. 298 Lowry v. Muldrovv, 8 Rich. Eq. (S. C.) 241; Hills v. Simonds, 125 Mass. 536; Boughton v. Bough ton, 1 H. L. Cas. 406; Storrs v. Benbow, 3 De Gex, M. & G. 390; Wilkinson v. Duncan, 30 Beav. Ill; Elliott v. Elliott 12 Sim. 276. 299 Goldsborough v. Martin, 41 Md. 488; Caldwell v. Willis, 57 Miss. 555; Dillon V. Reilly, Ir. R. 10 Eq. 152; Liley v. Hey, 1 Hare, 580; Wainman v. Field, Kay, 507. § 203) RULE AGAINST PERPETUITIES. 829 power." ""* The effect of appointments under powers wliich are too remote is the same as for estates limited in violation of the rule.^°^ Gifts to CJiarities. The rule against perpetuities also applies to gifts to charities In nearly all their forms. For instance, where there is a gift to a charity with a gift over to an individual, whether in trust for him or not, the gift over is void if it violates the rule.'»°=' So with a gift to an individual followed by a remote gift over to a charity.^ "^^ Again, property may be held in trust for an individual, to be held, on the happening of a contingency, for a charity. If the contin- gency is too remote, the gift to the charity is void.""* In the case, however, of a gift to one charity, with a gift over to another, the rule against perpetuities has been held not to apply."""" But Mr. Gray doubts the correctness of such a holding.' °« It has also been held that a gift which could not take effect at the testator's death would be held by the court a reasonable time, at least, for the benefit of the charity.'"^ «oo Gray, Perp. § 473; HiUen v. IseUn, 144 N. Y. 865, 89 N. E. 868; In re Powell's Trusts, 39 Law J. Ch. 188. Contra, Rous v. Jackson, 29 Ch. Div. 521. 801 Morgan v, Gronon, L. R. 16 Eq. 1. The appointment is bad if it might vest at a too remote period, though it does not. Smith's Appeal, 88 Pa. St. 492. An appointment over on a contingency after an appointment which violates the rule is void also. Routledge v. Dorrll, 2 Ves. Jr. 357. A power collateral to an estate tail is not void, since the tenant in tail may bar it at any time. Lantsbery v. Collier, 2 Kay & J. 709. A void clause may be re- jected, and the rest of the appointment stand. In re Teague's Settlement, L. R. 10 Eq. 564. 302 Gray, Perp. § 593; Brattle Square Church v. Grant, 3 Gray (Mass.) 142; Wells v. Heath, 10 Gray (Mass.) 17; Society for Promoting Theological Edu- cation V. Attorney General, 135 Mass. 285; Palmer v. Bank, 17 R. I. 627, 24 Atl. 109. 303 Gray, Perp. § 594; Leonard v. Burr, 18 N. Y. 96; Smith v. Townsend, 82 Pa. St. 434; Commissioners of Charitable Donations & Bequests v. De Clifford, 1 Dru. & War. 245; Attorney General v. GiU, 2 P. Wms. 309; In re Johnson's Trusts, L. R. 2 Eq. 716. so 4 Gray, Perp. §§ 595, 596. 30 5 Christ's Hospital v. Grainger, 16 Sim. 88, 1 McN. & G. 460, approved Odell V. Odell, 10 Allen (Mass.) 1, 9; Jones v. Habersham, 107 U. S. 174, 185, 2 Sup. Ct. 336; Chamberlayne v. Brockett, 8 Ch. App. 206, 806 Gray, Perp. §§ 597-603. «07 Sinnett v. Herbert, 7 Ch. App. 232. 330 ESTATES A3 TO TIME OF ENJOYMENT FUTURE ESTATES. (Ch. 11 SAME— RULE AGAINST PERPETUITIES IN THE UNITED STATES. 204. In the United States the rule against perpetuities ex- ists as at common law^, except: EXCEPTION — In some states it is provided by statute that all future estates must vest within two lives in being. As has been stated, the mle against perpetuities was established by construction of the courts. In most American states the rule has been adopted as part of the common law. In some there are statutes which are merely declaratory of the common-law rule. In others a different rule has been provided, — notably, in New York, Michigan, Wisconsin, and Minnesota, — and the time is lim- ited to the duration of two lives in being.**** RULE AGAINST ACCUMULATIONS. 205. At common law the rents and profits of land could be directed to be accumulated for the period allowed by the rule against perpetuities for the vesting of estates, but in a number of states statutes have pre- scribed a different period. At common law, rents and profits of an estate can be directed to be accumulated during the time allowed by the rule against per- petuities.*°^ This, however, has been restricted to a shorter time, in many states, by statute. In some states these periods are meas- ured by minorities; in others, a definite number of years, as 10 or 21, is prescribed, regardless of lives or minorities.*^" This rule 308 1 Stim, Am. St Law, §§ 1440, 1442. The rule in these states has been discussed at length in Chapl. Suspen. Power. And see 'Dean v. Mumford, 102 Mich. 510, 61 N. W. 7; Morris v. Bolles, 65 Conn, 45, 81 Atl. 538; Ketchum v. Corse, 65 Conn. 85, 31 Atl. 486. 809 Thellusson v. Woodford, 11 Yes. 112. • 10 1 stim. Am. St Law, § 1443; Brandt v. Brandt 13 Misc. Rep. 431, 34 N. Y. Supp. 684. The English statute on this subject is called the "Thellusson Act" (39 & 40 Geo, III. c. 98). And see In re Woods [1894] 3 Ch. 381. ■"§ 205) RULE AGAINST ACXTUMULATIONS. 331 differs, however, from the rule against perpetuities, in that direc- tions for accumulations are void only as to the excess after the time permitted.^ ^^ There is some doubt as to whether the rule against accumulations applies to gifts to charities. Where there is a present gift to a charity, with directions to accumulate the profits, if the directions are void the property will be applied to the use of the charity at once.'^' 8111 Stim. Am. St Law, § 1444; Odell v. Odell, 10 Allen (Mass.) 1; Martin V. Maugham, 14 Sim. 230. But compare Southampton v, Hertford, 2 Ves. & B. 54; Curtis v. Lukin, 5 Bear. 147. The right to the Income may be vested and only the enjoyment postponed. Smith v. Parsons, 146 N. Y. 116, 40 N. E. 736. «n Gray, Perp. { 678. 332 ESTATES AS TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12 CHAPTER "^nrr. ESTATES AS TO NUMBER OF OWNERS-JOINT ESTATES. 206. Estates as to Number of Owners. 207. Joint Estates. 208. Joint Tenancies. 209. Tenancies in Common. 210. Estates in Co-parcenary, 211-212. Estates in Entirety, 213. Estates in Partnership. 214. Incidents of Joint Estates. 21&-216. Partition. ESTATES AS TO NUMBER OF OWNERS. 206. Estates are divided according to the number of o-wn-^ ers w^ho are entitled to possession at the same time into, — (a) Estates in severalty, and (b) Joint estates. JOINT ESTATES. 207. Joint estates are those -which are o-wned by two or more persons. The joint estates at common la-w- are, — (a) Joint tenancies (p. 333). (b) Tenancies in common (p. 335), (c) Estates in co-parcenary (p. 336). (d) Estates in entirety (p. 337). (e) Estates in partnership (p. 339). The interests so far considered have been those In which the right to possession is in one person at a time. Such interests are called estates in severalty. But these same estates, as to quantity, quality, time of enjoyment, etc., may be held by t-wo or more per- sons in an undivided ownership, and when so held they are called joint estates. S 208) JOINT TENANCIES. 833 SAME— JOINT TENANCIES. 208. A joint tenancy is an o-wnership of land in commu- nity in equal undivided shares by virtue of a convey- ance whicli imports an intention that the tenants shall hold one and the same estate. The interests of all the tenants go to the last survivor. For the existence of a joint tenancy the follo"wlng unities are necessary: (a) Unity of interest. (b) Unity of title. (c) Unity of time. (d) Unity of possession. At common law all joint estates were presnmed to be joint ten- ancies unless there was a contrary provision in the instrument creating them/ but this presumption does not now obtain in many states.* Joint estates held by trustees or mortgagees continue, how- ever, in many of these states, to be joint tenancies.^ The chief in- cident of a joint tenancy is the right of survivorship by which the interest of a tenant does not pass to his heirs, but vests, after his death, in his co-tenant, or, if there be more than one, it vests in all of them. The doctrine of survivorship is applied until only one tenant remains, who then holds in severalty, and the land will go to his heirs.* A joint tenancy is said to be held "per my et per tout.'' This is translated by Blackstone as meaning by the half or moiety and by the whole," while others translate it as meaning by noth- ing and by the whole.* For the existence of a joint tenancy it is necessary that there be present the four unities as they are called.^ 1 Martin v. Smith, 5 Bin. (Pa,) 16. Cf. Caines v. Grant, Id. U9. « See post, p. 335. On the difference between tenancies In common and Joint tenancies, see Doe v. Abey, 1 Maule & S. 428. « 1 Stim. Am. St. Law, § 1371, 3, 5. * Overton v. Lacy, 6 T. B. Mon. (Ky.) 13; Spencer v. Austin, 38 Vt. 2.8; Herbemont's Ex'rs v. Thomas, 1 Cheves, Eq. (S. O.) 21. 6 2 Bl. Comm. 182. • Murray v. Hall, 7 Man., G. & S. 440, note, 445. T De Witt V. San Francisco, 2 Cal. 289. 334 ESTATES AS TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12- These are interest," title,* time,^** and possession.*^ By unity of interest, in reference to joint tenancy, is meant a similarity of estate, as regards its extent or duration, in each joint tenant. Since joint tenants hold under a grant of a single estate, their interests are necessarily the same in extent. Thus one cannot be tenant in fee simple and the others in tail, or for life, or for a term of years. But where two or more are joint tenants for life, one of them may have the inheritance in severalty, subject to the joint estate; as w here land is granted to A. and B. for their lives, and to the heirs or heirs of the body of A. By unity of the title of joint tenants is meant the creation of their interests by one and the same act; that is, by the same grant or demise. Joint tenants cannot be acquired un- der different titles. And, at common law, unity of time of com- mencement of the title was requisite; that is, the interests of the tenants must have vested at one and the same time. Thus, if the fee simple in remainder after a life estate were limited to the heirs of A. and the heirs of B., A. and B. being alive at the time of the limitation, but subsequently dying at different times, their respec- tive heirs would not be joint tenants, but tenants in common; since their interests would not have arisen at the same moment. But by means of limitations operating by way of springing or shifting use, or executory devise, the interests of joint tenants may be made to arise at different times. Unity of possession means only a joint right to possession, which is essential to all joint estates. A joint tenancy can be created only by purchase. It cannot arise by de- scent.** One joint tenant cannot convey the whole estate or any part by metes and bounds,*' but he may convey his share, and such a conveyance causes a severance of the tenancy.** That Is, when a joint tenant mortgages or conveys his share to a stranger, it 8 Wlscot'8 Case, 2 Coke, 60b; Putney v. Dresser, 2 Mete. CVlass.) 583; Jones V. Jones, 1 Call (Va.) 458. e De Witt V. San Francisco, 2 Cal. 289. 10 Strattan v. Best, 2 Brown, Ch. 233; Sammes' Case, 13 Coke, 54. 11 Thornton v. Thornton, 3 Rand. (Va.) 179. 12 1 Washb. Real Prop. (5th Ed.) 676. Cf. Putney v. Dresser, 2 Mete. (Mass.) 583. But see Rev. St. Ind. 1894, §§ 2624, 2625. 18 Porter v. Hill, 9 Mass. 34; Hanks v. Enloe, 33 Tex. G2I. 1* Robison v. Codman, 1 Sumn. 121, Fed. Cas. No. 11,970; Davidson v. Heydom, 2 Yeates (Pa.) 459. § 209) TENANCIES IN COMMON. 835 turns the joint tenancy into a tenancy in common so far as that share is concerned, though the other owners continue to hold as joint tenants between themselves with all the incidents of joint tenancy.^"^ In many states joint tenancies have been turned into ten- ancies in common by statute, or the right of survivorship has been abolished, or a power to devise has been given.^' SAME— TENANCIES IN COMMON. 209. A tenancy in common is a joint o-wnership of lands, to -which the principle of survivorship does not ap- ply. The only unity necessary for a tenancy in common is that of possession. A tenancy in common is where two or more hold the same land with interests accruing under different titles, or accruing under the same title, but at different periods, or conferred by words of limi- tation importing that the grantees are to take in distinct shares.^^ Unity of possession is necessary for a tenancy in common. A joint tenancy differs from a tenancy in common in being subject to the right of survivorship, and in requiring the four unities, while for a tenancy in common only unity of possession is necessary. Though the other unities may exist, their presence is immaterial. The in- terests may be held by several and distinct titles.^* These titles may be acquired in different ways.^* In many of the United States all joint estates are presumed to be tenancies in common, unless the contrary appears." Tenancies in common may be created by i» Simpson's Lessee v. Ammons, 1 Bin. (Pa.) 175; Brown v. Raindle, S Ves. 256. le 1 Stim. Am. St. Law, §§ 1871, 2630; 3 Share. & B. Lead. Gas. Real Prop. 15. For exceptions to ttie operation of these statutes, see 2 Jones, Real Prop. §§ 1783. 1788, 1789. IT 1 Steph. Comm. 323. 18 Mittel V. Karl, 133 lU. 65, 24 N. E. 553; Spencer v. Austin, 38 Vt. 258; Griswold v. Johnson, Conn. 363. They may arise by descent, but not at com- mon law. Fenton v. Miller, 94 Mich. 204, 53 N. W. 957. 19 2 Bl. Comm. 192. And see Putnam v. Ritchie, 6 Paige (N. Y.) 390. 20 1 Stim. Am. St. Law, § 1371 B; 3 Shars. & B. Lead. Cas. Real Prop. 20. See Case v. Owen, 139 Ind. 22, 38 N. B. 395. 336 ESTATES AS TO NUMBER OP OWNERS JOINT ESTATES. (Ch. 12 conveyances expressly providing for such estates,^^ or they may arise by implication; as where one-half of a parcel of land is con- veyed without metes and bounds, or where a certain number of acres out of a larger tract are conveyed without the particular part being designated.^^ In all cases of tenancies in common the share of each tenant, whatever the number of tenants may be, is pre- sumed to be equal to the shares of the others,^' unless it is other- wise expressly provided, or circumstances, such as unequal contri- butions to the purchase price, rebut such a presumption.''* Joint Mortgagees. Many of the rules governing joint estates apply to those who hold land in the capacity of joint mortgagees. Under the common-law theory of mortgages, joint mortgagees are, after a strict foreclo- sure, tenants in common.^'' Before the foreclosure of a mortgage given to two or more jointly, the doctrine of survivorship applies, and the survivor may foreclose the mortgage without making the heirs or the personal representative of the deceased mortgagee par- ties to the action.^ ^ If the mortgage is given to secure debts which are several, the joint mortgagees hold as tenajits in common.''^ SAME— ESTATES IN CO-PARCENARY. 210. An estate in co-parcenary is an cwrnership of land in community in undivided shares by co-heirs. Unities of interest, title, and possession are necessary for estates in co-parcenary. Estates in co-parcenary exist in only a few states. «i See Emerson v. Cutler, 14 Pick. (Mass.) 108; Martin v. Smith, 5 Bin. (Pa.) 16. "2 Preston v. Robinson, 24 Vt 583; Seckel v. Engle, 2 Rawle (Pa.) 68; Wal- lace V. Miller, 52 Cal. 6.55. 23 See Campau v. Campau, 44 Mich. 31, 5 N. W. 1062; Gregg v. Patterson, Watts & S. (Pa.) 197. 2* Rankin v. Black, 1 Head (Tenn.) G50. 2 Goodwin v. Richardson, 11 Mass. 4(59. 2 6 Appleton V. Boyd, 7 Mass. 131. For the application of the principle of Burvivorship to the mortgage debt, see 2 Jones, Mortg. (5th Ed.) § 1382. «T Burnett v. Pratt, 22 Pick. (Mass.) 556; Brown v. Bates, 55 Me. 520. §§ 211-212) ESTATES IN ENTIRETY. 837 Under the American rules of descent both male and female heirs may hold as co-parceners,^* but under rules of primogeniture only co-heiresses could be co-parceners.^' An estate in co-parcenary arises only by descent. Co-parceners may hold unequal interests because some of them may be children and others grandchildren. The doctrine of survivorship does not apply to estates held in co- parcenary.'*' In an estate in co-parcenary the unities discussed un- der joint tenancies are necessary, except the unity of time.* Es- tates in co-parcenary differ from joint tenancies in that the doctrine of survivorship does not apply, and that they arise by descent, while joint tenancies arise only by purchase. In some states this estate has been abolished, and co-heirs take as tenants in common, though in a few the tenancy still exists.'^ SAME— ESTATES IN ENTIRETY. 211. An estate in entirety is one conveyed to a man and his wife to hold jointly. The doctrine of survivor- ship applies to these estates. 212. Estates in entirety have been abolished in many states. When at common law a joint estate was conveyed to a man and his wife, the effect was not the same as if the conveyance had been to two persons not married, but the peculiar joint holding known as a tenancy in entirety arose." It is, of course, possible to con- vey to a man and his wife land to be held as a tenancy in common or a joint tenancy by the use of words indicating such an inten- tion.'" When an estate was conveyed to a man and his wife and «8 1 stim. Am. St. Law. § 1375; Hoffar v. Dement, 5 GiU (Md.) 132; GUpin V. Hollinssworth, 3 Md. 190. 2 9 Co. Lltt. §§ 241, 242, 254. 80 2 Bl. Comm. 188. •Id. 81 1 Stim. Am. St. Law, § 1375 A. 8 2 Thornton v. Thornton, 3 Rand. (Va.) 179; Hnnt t. Blackbnrn, 128 U. 8. 464. 9 Sup. Ct. 125. 8 3 Hicks V. Cochran, 4 Edw. Ch. (N. Y.) 107; McDermott v. French, 15 N. J. Eq. 78; Hoffman r. Stigers, 28 Iowa, 302; Fladung v. Rose, 68 Md. 18; RBAL PROP. — 22 338 ESTATES AS TO XU.MlJi:u uK (j'.VNKRS JOINT ESTATES. (Cli. 12 a third person, the husband and wife took only one-half, which Ihey held as tenants in entirety, while the third person took the other half, holding it in common, or as a joint tenancy, as the case might be, with the husband and wife. So, if there were more than three persona to whom the conveyance w^as made, the husband and wife would together take only one share.^^ The doctrine of sm'vivor- ship applies to estates in entirety, and they go to the heirs of the survivor only, the heirs of the first deceased taking nothing." Dur- ing the joint lives of the husband and wife the husband has the control of the joint estate, and a conveyance made by him will be effectual during his life;" but if he die first she may avoid the conveyance.'^ So land held by this tenancy may be levied on by the husband's creditors, but such a conveyance will be no more effectual against a surviving wife than a voluntary alienation.^* Estates in Entirety in the United States — Community System. In some of our states estates in entirety still exist. In some states the mamed women's acts are held to have abolished them,'* though in other states the contrary is held.*" In some jurisdic- tions they are treated as tenancies in common,*^ in others as joint tenancies.*^ Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999. But see, contra, Stuckey v. Keefe's Ex'rs, 26 Pa. St 397. 84 Barber v. Harris, 15 Wend. (N Y.) 616; Jolinson v. Hart, 6 Watts & S. (Pa.) 319. 3 5 Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397. Cf. Thornton v. Thornton, 3 Rand. (Va.) 179. 3 6 Barber v. Harris, 15 Wend. (N. Y.) 616; Bennett v. Child, 19 Wis. 362; Ames V. Norman, 4 Sneed (Tenn.) 683. 8 7 Pierce v. Chace, 108 Mass. 254; McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391 ; Washburn v. Burns, 34 N. J. Law, 18. 8 8 Farmers' & Mechanics' Bank v. Gregory, 49 Barb. (N. Y.) 155. And see MoCurdy v. Canning, 64 Pa. St. 39. 8 8 Cooper V. Cooper, 76 111. 57. 4 Bennett v. Child, 19 Wis. 362; Lewis' Appeal, 85 Mich. 340, 48 N. W. 580; Carver v. Smith, 90 Ind. 222; Zorntlein v. Bram, 100 N. Y. 13, 2 N. E. 888; Diver v. Diver, 56 Pa. St. 106. *i Hoffman v. Stigers, 28 Iowa, 302; Farmers' & Merchants' Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439. 42 Whittlesey v. Puller, 11 Conn. 337. Land may be conveyed to husband and wife as joint tenants. Wilken v. Young (Ind. Sup.) 41 N. E. 68. And see Hiles V. Fisher, 144 N. Y. 806, 39 N. E. 337. § 213) ESTATES IX PARTNERSHIP. 339 In a number of our Southern and Western states, owing to the influence of French and Spanish law, a system of property owner- ship by married persons has been adopted, called the community system. This regards the relation of husband and wife, as far as their property rights are concerned, as a kind of partnership, and as such the property is primarily liable for the debts of the com- munity." The community doctrine, however, applies only to prop- erty acquired by the spouses during the marriage,** and even as to this property there is merely a presumption that it is held in com- munity. The presumption may be rebutted, and it may be shown that the property belongs individually to the husband or to the wife.*" The husband, under the community system, has the right to control the common property.* « On the death of either spouse the common property goes one-half to the survivor and one-half to the heirs of the deceased. If there are no heirs, then the survivor takes it all.*^ SAME— ESTATES IN PARTNERSHIP. 213. An estate in partnership is one where land purchased with partnership funds is held by the members of a partnership for partnership purposes. In order that land may be held as an estate in partnership, it must be purchased with partnership funds, and for partnership pur- poses.** The equitable title to such property belongs to the part- nership as an entity in severalty, the legal title being held in trust 43 Jones V. Jones, 15 Tex. 143; Carter v. Conner, 60 Tex. 52. But see Chaffe V. Mcintosh, 36 La. Ann. 824. It is also liable for any debts of the husband. Adams v. Knowlton, 22 Cal. 283; Forbes v. Dunham, 24 Tex. 611. And for the wife's antenuptial debts. Vlautin v. Bumpus, 35 Cal. 214; Taylor v. Muii)hy, 50 Tex. 291. 44Pancoast v. Pancoast, 57 Cal. 320; Althof v. Conheim, 38 Cal. 230; Burns v. Thompson. 39 La. 377, 1 South. 913. 4 5 Cooke V. Bremond, 27 Tex. 457; McDonald t. Badger, 23 Cal. 393; Higgins V. Higgins, 46 Cal. 259; Schuyler v, Broughton, 70 Cal. 282, 11 Pac. 719. 46 1 Stim. Am. St. Law, § 6433. 47 1 stim. Am. St. Law, art. 340. 4 8 Hoxie V. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; Alkire v. Kahle, 123 IlL 496, 17 N. E. 693; Buchan v. Sumner, 2 Barb. Ch. (N, Y.) 165. 340 ESTATES AS TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12 for the firm.^' The \e^a\ title may be in one partner '^° or in all the partners. In the latter case they hold as tenants in common.'*^ The firm's interest in the land is i^ersonalty,"- and is primarily lia- ble for partnership debts.'** The surplus, if any, goes to the part- ners as tenants in common.''* INCIDENTS OF JOINT ESTATES. 214. The rights of tenants of joint estates will be treated under the follovsring heads: (a) Possession and disseisin (p. 340). (b) Accounting between co-tenants (p. 341), (c) Repairs and waste (p. 342). (d) Transfer of joint estates (p. 343). (e) Actions affecting joint estates (p. 343). Possession and Disseisin. The owners of joint estates have in general all the rights of own- ers in severalty except the right to sole possession."* Therefore the possession of one tenant of a joint estate is not adverse to his co-tenants,^^ but it may be made so by an actual disseisin of the other tenants, such as a known denial of their rights, or a long ex- clusive possession without accounting for the rents and profits. ''^ *9 Fall-child v. Fairchild, 64 N. Y. 471; Dyer v. Clark, 5 Mete. (Mass.) 562; Paige V. Paige, 71 Iowa, 318, 32 N. W. 360. BO Williams v. Shelden, 61 Mich. 311, 28 N. AV. 115; Fairchild v. Fairchild, 64 N. Y. 471. Bi Pepper v. Pepper, 24 111. App. 316; Dyer v. Clarli, 5 Mete. (Mass.) 562; Howard v. Priest, Id. 582. 52 Arnold v. Wainwright, 6 Minn. 358 (Gil. 241). And see ante, p. 24. 63 Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165; Galbraith v. Gedge, 16 B. Mon. (Ky.) 631. 64 Strong V. Lord, 107 111. 25; Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165. BBWood V. Phillips, 43 N. Y. 152; Erwin v. Olmsted. 7 Cow. (N. Y.) 229; Gower v. Quintan, 40 Mich. 572. 66 Clapp V. Bromagham, 9 Cow. (N. Y.) 530; Challefoux v. Ducharme, 4 Wis. 554. 67 M'Clung V. Ross, 5 Wheat. 116; Puckett v. McDaniel, 8 Tex. Civ. App. 630, 28 S. W. 860; Cameron v. Railway Co., 60 Minn. 100, 61 N. W. 814; LLscomb v. Root, 8 Pick. (Mass.) 376; Cummings v, Wyman, 10 Mass. 464; § 214) INCIDENTS OF JOINT ESTATES. 341 So one co-tenant may disseise the others by conveying the whole of the estate to a stranger, if the conveyance is followed by possession by the grantee/® One co-tenant cannot let the joint property be sold for taxes, and purchase it himself; if he does so, his title will not be good against his co-tenants.''® Nor can a co-tenant set up any other adverse title in himself or in another.^" Accounting hetween Co- Tenants. Trespass quare clausum does not lie against a co-tenant for taking the crops nor for cutting trees,^^ though one tenant may recover his proportion if the whole has been sold by the other tenant.®'* So one tenant cannot recover rent from his co-tenant when the latter has been occupying the joint premises,"® though the rule is otherwise in Blackmore v. Gregg, 2 Watts & S. (Pa.) 182; Feliz v. Feliz, 105 Cal. 1, 38 Pac. 521. There must be an actual ouster. Mansfield v. McGinnis, 86 Me. 118, 2P Atl. 956. °8 Clapp V. Bromagham, 9 Cow. (N. Y.) 530; Kinney v. Slattery, 51 Iowa, 353, 1 N. W. 626. But see Noble v. Hill, 8 Tex. Civ. App. 171, 27 S. W. 756; Caldwell v. Neely, 81 N. C. 114; Price v. Hall, 140 Ind. 314, 39 N. E. 941. Such a conveyance must be followed by possession, or there will be no ouster of the other tenants. New York & T. Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206. Such a purchaser fi'ora one co-tenant is not estopped to set up a title adverse to that of the joint owners. Watkins v. Green, 101 Mich. 493, 60 N. W. 44. eo Dubois v. Campau, 24 Mich. 360; Page v. Webster, 8 Mich. 263; Conn v. Conn, 58 Iowa, 747, 13 N. W. 51; Clark v. Rainey, 72 Miss. 151, 16 Soutb. 499. And see Bracken v. Cooper, 80 111. 221; Montague v. Selb, 106 111. 49. 6 Roth well V. Dewees, 2 Black, 613; Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 388; Davis v. Givens, 71 Mo. 94. An adverse title purchased by one tenant inures to the benefit of the others only when they pay their proportion of the cost. McFarlin v. Leaman (Tex. Civ. App.) 29 S. W. 44. When the co-tenants hold in remainder, the purchase of the preceding life estate by one tenant does not inure to the benefit of the others. McLaughlin v. McLaughlin, 80 Md. 115, 30 Atl. 607. Cf. Roberts v. Thorn, 25 Tex. 728; Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251. See, also, Palmer v. Young, 1 Vern. 276; Hamilton v. Denny, 1 Ball & B. 199. 61 Filbert v. Hoff, 42 Pa. St. 97. 6 2 Abbey v. Wheeler, 85 Hun, 226, 32 N. Y. Supp. 1069; McGahan v. Bank, 156 U. S. 218, 15 Sup. Ct. 347; Hayden v. Merrill. 44 Vt. 336; Richardson v. Richardson, 72 Me. 403. But see Calhoun v. Curtis, 4 Mete. (Mass.) 413. 6 3 McLaughlin v. McLaughlin, 80 Md. 115, 30 Atl. 607; Sargent v. Parsons, 12 Mass. 149; Woolever v. Knapp, 18 Barb. (N. Y.) 265; Valentine v. Healey, 8« Hun, 259, 33 N. Y. Supp. 246; Thomas v. Thomas, 5 Exch. 28; Henderson 342 ESTATES AS TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12 some states by statute,®* and there may be such a recovery if the land has been leased, and the whole of the rent collected by one ten- ant.®" A co-tenant has no claim for improvements which he has made on the common property,'® though he may be given the benefit of them in a partition of the land.®^ Repairs and Waste. One co-tenant may make necessary repairs, and enforce contribu- tion therefor against the other tenants.®" One tenant in possession of the joint property may become liable to his co-tenants for waste if he does acts which amount to a destruction of the property.®* The technical rules of waste, however, do not apply. There must be some actual injury to the estate, or the liability is not incurred.^" A tenant in possession may be restrained by injunction from ma- licious injury to the property.''^ r. Eason, 17 Q. B. 701. One tenant may take a lease from his co-tenants. Valentine v. Healey, 86 Hun, 259, 33 N. Y. Supp. 246. 8* 1 Stlm. Am, St. Law, § 1378; 3 Shars. & B. Lead. Cas. Real Prop. 98. And see McParland v. Larkin, 155 IlL 84, 39 N. E. 609. 8 Miner v. Lorman, 70 Mich. 173, 38 N. W. 18; Reynolds v. Wilmeth, 45 Iowa, 693. 6 8 Rico Reduction & Mining Co. v. Musgrave, 14 Colo. 79, 23 Pac. 458; Scott V. Guernsey, 48 N. Y. 106. 6 7 Kurtz V. Hibner, 55 111. 514; Alleman 7. Hawley, 117 Ind. 532, 20 N. E. 441. 68 Stewart v. St-^wart (Wis.) 63 N. W. 886; Leigh v. Dickeson, 12 Q. B. Div. 194; Ward v. Ward's Heirs (W. Va.) 21 S. E. 746; Pickering v. Pickering, 63 N. H. 468, 3 Atl. 744; Dech's Appeal, 57 Pa, St: 467; Beaty v. Bordwell, 91 Pa. St 438; Alexander v. Ellison, 79 Ky. 148; Fowler v. Fowler, 50 Conn. 256; Haven v. Mehlgarten, 19 111. 91. But see Calvert v. Aldrlch, 99 Mass. 74. But there is no lien on the land to secure such expenditures. Branch V. Makeig (Tex. Civ. App.) 28 S. W. 1050. But see, as to improvements by a co-parcener, Ward v. Ward's Heirs (W. Va.) 21 S. E. 746. Co-tenants must contribute for expenses incurred in defending the common title. Gosselin v. Smith, 154 111. 74, 39 N. E. 9S0. 89 Dodge V. Davis, 85 Iowa, 77, 52 N. W. 2; Childs v. RaQroad Co., 117 Mo. 414, 23 S. W. 373; Wilkinson v. Hay garth, 12 Q. B. 837. But see Walt v. Richardson, 33 Vt. 190. The amount of recovery is apportioned according to the interests of the several ownei-s. McDodrill v. Lumber Co. (W. Va.) 21 8. E. 878. 70 Martyn v. Knowllys, 8 Term R. 145. 71 Ballou V. Wood, 8 Cush. (Mass.) 48. But see Hihn v. Peck, 18 Cal. 640; Obert V. Obert, 5 N. J. Eq. 397. § 214) INCIDENTS OF JOINT ESTATES. 343 Tramfer of Joint Estates. All tenants of joint estates except those holding in entirety" may convey all or part of their interests to a stranger without the consent of their co-tenants." But they cannot, by such convey- ance, pass a valid title to any separate part of the common prop- erty.'^* So a tenant of a joint estate cannot dedicate land to the public for a street" It has already been said that one joint ten- ant, by conveying to a stranger, severs the joint tenancy,^' but such a tenant cannot devise his share, unless he be the last survivor.''^ A co-parcener may pass his interests by devise.'" Actions Affecting Joint Estates. For injuries to the possession of a joint estate or to rights grow- ing out of possession, the co-tenants should sue jointly."^' Joint tenants at common law must join in an action affecting the title," 7 2McCurdy v. Canning, 64 Pa, St 39; Ames v. Norman, 4 Sneed (Tenn.) 683; Arnold v. Arnold, 30 Ind. 805. 7 8 Peabody v. Minot, 24 Pick. (Mass.) 329; Barnes v. Lynch, 151 Mass. 510, 24 N. E. 783; Butler v. Roys, 25 Mich. 53; Rector v. Waugh, 17 Mo. 13; Simp- son's Lessee v. Ammons, 1 Bin. (Pa.) 175. Rights of curtesy and dower in joint estates have already been considered, ante, pp. 79, 92. For the words of limitation necessary to pass a fee in conveyances by joint owners, see ante, p. 37. T4 Porter v. Hill, 9 Mass. 34; Varnum v. Abbot, 12 Mass. 474. So, also, as to levy of execution, Bartlet v. Harlow, 12 Mass. 348; Starr v. Leavitt, 2 Conn. 243; Butler v. Roys, 25 Mich. 53; Peabody v. Minot, 24 Pick. (Mass.) 329; Thompson v. Barber, 12 N. H. 563. 7 8 Scott v. State, 1 Sneed (Tenn.) 629. Cf. Stevens v. Town of Norfolk, 48 Conn. 227, and Stevens v. Battel!, 49 Conn. 156. TB Ante, p. 334. 7T Wilken v. Young (Ind. Sup.) 41 N. E. 68; Duncan v. Forrer, 6 Bin. (Pa.) 193. But see Nichols v. Denny, 37 Miss. 69. The interest of a Joint tenant may be sold on execution. Midgley v. Walker, 101 Mich. 583, 60 N. W. 296. 7 8 1 Washb. Real Prop. (5th Ed.) 684. 79 Decker v. Livingston, 15 Johns. (N. Y.) 479; De Puy v. Strong, 87 N. Y. 372; Daniels v. Daniels, 7 Mass. 135; Gilmore v. Wilbur, 12 Pick. (Mass.) 120. As on a joint lease for the recovery of rent. Sherman v. Ballon. 8 Cow. (N. Y.) 304; Wall v. Hinds, 4 Gray (Mass.) 256. But see Hayden v. Paterson, 51 Pa. St. 261. 80 Wheat v. Morris, 21 D. C. 11; Marshall v. Palmer, 91 Va. 344, 21 8. B. 672; Webster v. Vandeventer, 6 Gray (Mass.) 428; Dewey v. Lambier, 7 Cal. 347. But see Lowery v. Rowland, 104 Ala. 420, 16 So. 88; Morgan r. Hudnell (Ohio Sup.) 40 N. E. 716. 344 ESTATES A3 TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12 but by statute in some states tenants of joint estates may join or not, as they choose.*^ Tenants in common and co-parceners cannot bring joint action when the title is involved." PARTITION. 215. Partition is the dividing of land held by the owners of joint estates into distinct portions, so that each may hold his share in severalty. 216. There may be a partition of all kinds of joint estates except tenancies in entirety. Partition may be either voluntary ^^ or compulsory. Voluntary par- litiou cannot be by parol ^* except for tenancies in co-parcenai-y,*" though many cases give effect to a parol partition when followed by possession of the shares in severalty." Rights may be acquired under such partition by long possession.*^ Voluntary partition should be made by mutual deeds. Joint estates may be so created that partition of them cannot be had,** but, in the absence of such 81 3 Sbars. & B. Lead. Cas. Real Prop. 20. 8 2 Inhabitants of Kehobotli v. Hunt, 1 Pick. (Mass.) 224; Hill v. Gibbs, 5 Hill (N, Y.) 56. And see Mooers v. Bunker, 29 N. H. 420. 88 But see as to riglits of third persons, Emson v. Polhemus, 28 N. J. Eq. 439. s* Duncan v. Sylvester, 16 Me. 388; Dan v. Longstreet, 18 N. J. Law, 405. But see Ebert v. Wood, 1 Bin. (Pa.) 210; Wood v. Fleet, 36 N. Y. 499. 85 2 Bl. Comm. 324; Wildey v. Bonney's Lessee, 31 Miss. 644; Boiling v. Teel, 76 Va. 487. 8 8 Wolf V. Wolf, 158 Pa. St. 621, 28 Atl. KM; Jackson v. Harder. 4 Johns. (N. Y.) 202; Shepard v. Rinks, 78 III. 188; Buzzell v. Gallagher, 28 Wis. 678. 8T Manly v. Pettee, 38 111. 128; Taylor v. Millard, 118 N. Y. 244, 23 N. E. 876; Mellon v. Reed, 114 Pa. St. 647, 8 Atl. 227; McMahan v. McMahan, 13 Pa. St. 376. See further, as to parol partition, 2 Jones, Real Prop. §§ 1940- 1950. 8 8 Winthrop v. Minot, 9 Gush. (Mass.) 405; Hunt v. W^right, 47 N. H. 396. So there may be a valid agreement not to partition. Coleman v. Coleman, 19 Pa. St. 100; Eberts v. Fisher, 54 Mich. 294, 20 N. W. 80; Avery v. Payne, 12 Mich. 540. But see Mitchell v. Starbuck, 10 Mass. 5; Keau v. Tilford, 81 Ky. 600. §§ 215-21(5; PARTITION. 345 a provision, any joint estate except estates in entirety may be di- vkled at the suit of one of the tenants without the consent of the others.^® But when compulsory partition is souglit it must be for the whole estate, and not for part of it.^° At common law, parti- tion could be compelled against the consent of the co-tenants only in the case of co-parcenary.®^ The right to compel partition by an action at law was first given by the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32. These statutes have been re-enacted in most of the United States.^^ The remedy is now, however, almost exclusively in courts of chancery, or is by a special form of action provided by statute.®^ Partition can be had only by those having seisin and possession; therefore there can be no partition of joint estates in reversion or remainder.®* In New York and a few other states vested remainders are excepted from this rule.®' In an ac- tion for partition all the co-tenants must be made parties,"^ as well as all other persons interested in the lands, such as lienholders, or they will not be bound by the action,®^ The action of partition is a local action in rem.®^ Questions of title cannot be settled in an action for partition.®'* The actual division of the land in partition 89 Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818; Rohn v. Harris, 130 111. 525, 22 N. E. 587; Danville Seminary v. Mott, 136 III. 289, 28 N. E.'54; Smith V. Smith, 10 Paige (N. Y.) 470. »o Duncan v. Sylvester, 16 Me. 888. 91 1 Washb. Real Prop. (5th Ed.) 710. 9 2 1 Washb. Real Prop. (5th Ed.) 711. And see Hall v. Piddock, 21 N, J. Eq. 311; Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283. 9 3 1 Washb. Real Prop. (5th Ed.) 723, note; Buckley v. Superior Court. 102 Cal. 6, 36 Pac. 360; Bailey v. Sisson, 1 R. I. 233. 9 4 Hodgkinson, Petitioner, 12 Piclc. (Mass.) 374; Bragg v. Lyon, 93 N. C. 151. And see as to disseisees, Rickard v. Rickard, 13 Pick. 251. 05 Hilliard v. Scoville, 52 111. 449; Howell v. Mills, 56 N. Y. 226; Jenkins v. Fahey, 73 N. Y. 355; Smalley v. Isaacson, 40 Minn. 450, 42 N. W. 352. 9 6 Holman v. Gill, 107 111. 467. 9 7 De Uprey v. De Uprey, 27 Cal. 330; Bogert v. Bogert, 53 Hun, 629, 5 N. Y. Supp. 893; Cornish v. Gest, 2 Cox, Ch. 27. But cf. Sebring v. Mersereau, 9 Cow. (N. Y.) 344; Stewart v. Bank, 101 Pa. St. 342. 98 Bonner, Petitioner, 4 Mass. 122; Corwithe v. Griffing, 21 Barb. (N. Y.) 9. 99 Fenton v. Circuit Judge, 76 Mich. 405, 43 N. W. 437; Fuller v. Montague, 8 C. C. A. 100, 59 Fed. 212. Cf., however, Welch's Appeal, 126 Pa. St. 297. 17 Atl. 623; Hayes' Appeal, 123 Pa. St 110, 16 Atl. 600. 346 ESTATES AS TO NUMBER OF OWNERS JOINT ESTATES. (Ch. 12 is made by commissioners appointed by the com't.^"" If an equita- ble division cannot be made, one of tlie co-tenants may be given a larger share than the other, and he be decreed to pay the other a sum of money called the owelty of partition.^ °^ This cannot be done, however, without his consent.^"* When one co-tenant has made improvements on the joint property, for which the others have not contributed, the court may, in its discretion, give him the land on which those improvements stand. ^*" Two or more co-tenants may have their interests set off to them to be held in severalty as regards the other tenants, but jointly between themselves.^"* If the estate to be pai-titioned consists of a number of parcels, each parcel need not be divided, but the partition may be made by as- signing the sepai'ate parcels to different tenants.^" ^ Some kinds of property, such as mills and factories, cannot be divided, In which case either an owelty of partition must be paid by the one who takes the whole property, or the property must be sold, and the money divided. ^""^ Probate courts in many states have power to make partition of estates over which they have acquired jurisdiction.^"^ After voluntary partition, if the title to the part which one co- tenant has received fails, such tenant has no remedy against his former co-tenants.^ "^ But, if the partition was compulsory, each co- tenant is in the position of a warrantor of the title of the shares 100 Enyard v. Nevins (N. J. Cli.) 18 Atl. 192; Dondoro v. Vansickle, 11 Nev. 389. 101 Green v. Arnold, 11 R. I. 3G4; Dobbin v. kex, 106 N. C. 444, US. E. 260. And see Marks v. Sewall, 120 Mass. 174; Stewart v. Bank, 101 Pa. St. 342. 102 Whitney v. Parker, 63 N. H. 416. And see Corrothers v. JoUiffe, 32 W. Va. 562, 9 S. E. 889. 10 s Town V. Needbam, 3 Paige (N. Y.) 545; St. Felix v. Rankin, 3 Edw. Ch. (N. Y.) 323; Brookfleld v. Williams, 2 N. J. Eq. 341. 104 Abbott V. Berry, 46 N. H. 369. And see Colton v. Smith, 11 Pick. (Mass.) 311. 105 iiagar v. Wiswall, 10 Pick. (Mass.) 152. 106 King V. Reed, 11 Gray (Mass.) 490; Higginbottom v. Short, 25 Miss. 160; Crowell V. Woodbury, 52 N. H. 613. But see Hills v. Day, 14 Wend. (N. Y.) 204; Miller v. Miller, 13 Pick. (Mass.) 237. 107 Appeal of Wistar, 115 Pa. St. 241, 8 AtL 797; Hurley v. Hamilton, 37 Minn. 160, 33 N. W. 912. losWeiser v. Weiser, 5 Watts (Pa.) 279; Beardsley v. Knight, 10 Vt 185; Morrice's Case, 6 Coke, 12b. §§ 215-216) PARTITION. 347 of the others, and, in the event of a failure of title, a new partition may be compelled, or there may be a reliance on the warranty.^""* Therefore, one co-tenant cannot set up an adverse title against the others after partition.*^" 109 But that a new partition cannot be compelled against an alienee after partition, see 1 Washb. Real Prop. (5th Ed.) 723. 110 Venable v. Beauchamp, 3 Dana (Ky.) 321. But of. Coleman v. Coleman, 3 Dana (Ky.) 398. 548 INCOUPOREAL HEREDITAMENTS. ^ (Ch. 13- CHAPTER XTTT. INCORrOREAL HEREDITAMENTS. 217. Definition and Kinds. 218. Easements. 219. Creation. 220. By Grant. 221. By Prescription. 222. Classification. 223. Incidents. 224. Destruction. 22o. SiJecific Easements. 226. Rights of Way. 227. Highways. 22S. Light and Air. 229-230. Lateral and Subjacent Support. 2.31. Party Walls. 232. Easements in Water. 233. Profits a Prendre. 234-23,^). Rents. 236. Franchises. DEFINITION AND KINDS. 217. An incorporeal hereditament is anything, the subject of property, -which is inheritable, and not tangible or visible. 217a. Incorporeal hereditaments in the United States are (a) Easements (p. 349). (b) Commons, or profits a prendre (p. 373). (c) Rents (p. 375). (d) Franchises (p. 378). Hereditaments are said to be either corporeal or incorporeal. A corporeal hereditament is any right of property which entitles the person in whom it is vested to the possession of the land. An in- corporeal hereditament is any right of property which is not a right to the possession of land. Incorporeal hereditaments differ from § 218) EASEMENTS. 349 corporeal hereditaments chiefly in that they are rights issuing out of land, rather than rights to land. The term "incorporeal heredita- ments" is used by some writers to include future estates, and the interests in realty which we are considering are distinguished as "hereditaments purely incorporeal." The distinction between cor- poreal and incorporeal hereditaments was, in the early law, of some importance; since rights to the possession of land were transferable only by delivery of such possession, while rights not involving pos- session of land were transferable by deed of grant. Corporeal here^ ditaments were therefore said to "lie in livery," ^ while incorporeal hereditaments were said to *^ie in grant." ^ This distinction, how- ever, is not now of practical importance; for in modem law cor- poreal as well as incorporeal hereditaments are transferable without actual delivery of possession. Other differences between the two kinds of property will be noticed as we proceed with the discussion of the various lends of incorporeal hereditaments. As enumerated by Blackstone: * 'incorporeal hereditaments are principally of ten sorts: Advowsons, tithes, commons, ways, offices, dignities, fran- chises, corodiey or pensions, annuities, and rents." However, only a few of these are now of any importance in this country, and of the others no further mention will be m8.de. EASEMENTS. *218. An easement is a right in the cwrier of one parcel of land, by reason of such ownership, to use the land of another foi a special purpose not inconsist- ent with tho general property in the latter.* Easements are rights which one man may exercise over the land of another." These rights can exist only in connection with some other land called the dominant estate, while the land over which the right is exercised is called the servient estate. Looked at from » Drake v. Wells, 11 Allen (Mass.) 141; Huflf v. McCauley, 53 Pa. St. 200. s 1 Washb. Real Prop. (5th Ed.) 37. 8 2 Comm. 21. « 2 Washb. Real Prop. 25. e Wolfe V. Frost, 4 Sandf. Ch. (N. Y.) 72; Wagner v. Hanna, 38 Cal. Ill; Harrison v. Boring, 44 Tex. 255; PeiTin v. Garfield, 37 Vt. 304. 350 INCORPOREAL UERKDITAMENTS. (Ch. 13 the standpoint of the owner of the dominant estate, the right is an easement, but from the standpoint of the servient estate it is a servi- tude. According to Mr. Washburn:^ "The essential qualities of easements are: (1) Thej are incorporeal; (2) they are imposed on corporeal property, and not upon the owner thereof; (3) they confer no right to a participation in the profits arising from such property; (4) they are imposed for the benefit of corporeal property; (5) there must be two tenements, — ^the dominant, to which the right belongs; and the servient, upon which the obligation rests." It is thus seen that easements differ from licenses principally in their duration, for licenses are generally only to do a number of specific acts on the land of the licensor. So, too, licenses are, as we have seen J for the most part, revocable, while easements are not.^ Easements differ also from commons or profits k prendre, which will be discussed later in this chapter,® in that an easement never gives the right to take anything from the corpus of the servient estate.^" SAME— CREATION. 219. Easements are created (a) By grant (p. 350). (b) By prescription (p. 352). 220. BY GRANT — Easements may be created by grant, ■wrhich includes easements arising under covenants and by implied grants. The grant of an easement must be in -writing. Easements may be created by grants, like other interests in land.^^ They need not be created in fee, but may be for a limited term.^* « Washb. Easem. (4th Ed.) 3. T Ante, p. 167. 8 Hills V. Miller, 8 Paige (N. Y.) 254; Ex parte Coburn, 1 Cow. (N. Y.) 568; Foster v. Browning, 4 R. L 47; Wallis v. Harrison, 4 Mees. & W. 538. 9 Post, p. 373. 10 Huntington v. Asher, 9G N. Y. G04; Post v. Pearsall, 22 Wend. (N. Y.) 425; Huff V. McCauley, 53 Pa. St. 206. 11 Cronkhite v. Cronkhite, 94 N. Y. 323; Wiseman v. Lueksinger, 84 N. Y. 814; Forbes v, Balenseifer, 74 111. 183; Duinneen v. Rich, 22 Wis. 550. 12 Curtis V. Gardner, 13 Mete. (Mass.) 457; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen (Mass.) §§ 219-220) CREATION OF EASEMENTS. 351 Tkey cannot be created by parol, and an attempt to do so would give only a license, wtdcli would be revocable.^' Easements may, how- ever, be either granted or reserved.^* When an easement is appur- tenant to an estate, it passes by a grant of the dominant estate, with- out express mention.^ ° Easements are sometimes conveyed by im- plication. These are called easements of necessity, and exist when- ever they are necessary to the enjoj-ment of the estate conveyed.^® Easements are often raised by covenants. A number of lots are sometimes conveyed with covenants by the grantee of each lot that he will not build within a certain distance of the street. Such cove- nants are held to impose a servitude on each lot in favor of the oth- ers.^^ In equity, also, there may be easements between two parcels of land owned by the same person, although this is not possible at law.^* For instance, an owner of two lots may construct a drain for one of them across the other, and then sell either of them. In 13 Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376; Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhlte v. Cronkhite, 94 N. Y, 323; Tinker v. Forbes, 136 111. 221, 26 N. E. 503; Minneapolis W. Ry. Co. v. Minneapolis & St. L. Ry. Co., 58 Minn. 128, 59 N. W 983. But see Wilkinson v. Suplee, 166 Pa. St. 315, 31 Atl. 36. 1* Bowen V. Conner, 6 Cush. (Mass.) 132; Inhabitants of Wintlirop v. Fair- banks, 41 Me. 307; Emerson v. Mooney, 50 N. H. 315; Ashcroft v. Railroad Co., 126 Mass. 196; Jones v. Adams, 162 Mass. 224, 38 N. E. 437; Sullivan v. Eddy, 154 111. 199, 40 N. E. 482. There must be a sufficient description of the easement. Wells v. Tolman, 88 Hun, 438, 34 N. Y. Supp. S40; Nunnelly t. Iron Co., 94 Tenn. 397, 29 S. W. 361. Cf. Borst v. Empie, 5 N. Y. 33. 10 Underwood v. Carney, 1 Cush. (Mass.) 285; Morgan v. Mason, 20 Ohio, 402. Cf. Grant v. Chase, 17 Mass. 443. isBoland v. St. John's Schools, 163 Mass. 229, 39 N. E. 1035; Atkins v. Bordman, 2 Mete. (Mass.) 457; Nichols v. Luce, 24 Pick (Mass.) 102; Weynand V. Lutz (Tex. Civ. App.) 29 S. W. 1097. See post, p. 359. 17 Tulk V. Moxhay, 2 Phil. Ch. 774; Tallmadge v. Bank, 26 N. Y. 105; Win- field V. Henning, 21 N. J. Eq. 188; Peck v. Conway, 119 Mass. 540. So an agreement to clean and repair a water course which has been granted through covenantor's land was held to run with the land. Holmes v. Buckley, Prec Ch. 39. But see Keates v. Lyon, 4 Ch. App. 218; Renals v. Cowlishaw, 11 Ch. Div. 860; Haywood v. Building Soc, 8 Q. B. Div. 403; Sharp v. Ropes, 110 Mass. 381; Norcross v. James, 140 Mass. 188, 2 N. E. 940. 18 Johnson v. Jordan, 2 Mete. (Mass.) 234; Lampman v. Milks, 21 N. Y. 505; Watts v. Kelson, 6 Ch- App. 166. But see Suffield v. Brown, 4 De Gex, J. & S. 185; Thomson v. Waterlow, L. R. 6 Eq. 36. 352 INCORPOREAL HEREDITAMICNTS. (Cll. 13 such case, if he transfer the dominjuit estate, the right to drain across the remaining lot will continue, and the same result may ob- tain if he transfers the servient estate to one who has knowledge of the existence of the drain, and the easement is necessary to the en- joyment of the other lot.^® Easements of this character and those created by covenants are often called equitable easements. 221. BY PRESCRIPTION'— Easements may be acquired by prescription by adverse user continued for the time required by the statute of limitations. At common law many easements were acquired by prescription,^" but it was held that prescription presumed a grant.^^ The acquire- ment of easements by prescription is now superseded by the doctrine of the statute of limitations.^^ To acquire an easement by prescrip- tion, it must have been exercised from time immemorial,^' but by the statute of limitations, 20 years is the time required, and in some states even a less period is provided by the statute.^* The char- acter of the acts necessary for gaining an easement under the statute of limitations and by the doctrine of prescription are the same, and the term "prescription" is generally used to denote the former. The user must be uninterrupted^^ and continuous, according to the nature 19 Thayer v. Payne, 2 Cusb. (:Mass.) 327; Tyer v. Carter, 1 Hurl. & N. 91G; Dunklee v. Railroad Co., 24 X. H. 489; Seymour v. Lewis, 13 N. J. Eq. 439. But see Nicholas v. Chamberlain, Cro. Jac. 121; Johnson v. Jordan, 2 Mete. (Mass.) 234; Collier v. Pierce, 7 Gray (Mass.) 18; Carbrey v. Willis, 7 Allen (Mass.) 364; Randall v. McLaughlin, 10 Allen (Mass.) 366; Buss v. Dyer, 123 Mass. 287; Butterworth v. Crawford, 46 N. Y. 349. 20 Cross V. Lewis, 2 Barn. & C. 686; Mayor of Kingston v. Horner, Cowp. 102. 21 Webb V. Bird, 13 C. B. (N. S.) 841; Mayor of Kingston v. Horner, Cowp. 102. 22 Claflin V. Railroad Co., 157 Mass. 489, 32 N. E. 659; Jones v. Crow, 32 Pa. St. 398; Rlcard v. Williams, 7 Wheat. 59. 23 Melvin v. Whiting, 10 Pick. (Mass.) 295. See Mayor of Kingston v. Horner, Cowp. 102. And see Kent v. Waite, 10 Pick. (Mass.) 138. The term "prescrip- tion" is, however, often used when the statute of limitations Is meant. »* Sibley v. Ellis, 11 Gray (Mass.) 417; Carger v. Fee, 140 Ind. 572, 39 N. E. 93; Boyd v. Woolwine (W. Va.) 21 S. E. 1020; 1 Stim. Am. St. Law, § 228L SB Pollard v. Barnes, 2 Cush. (Mass.) 191; Livett v. Wilson, 3 Bing. 115. A I 221) CREATION OF EASEMENTS. 358 of the easement." The statute does not begin to run while the own- er of the servient estate is under disability.'' So the period of lim- itation does not begin against a reversioner or remainder-man until he is entitled to possession of the estate." The use of the easement must be under an adverse claim of right, though color of title is not necessary.-^ S^uch use cannot be adverse if it is begun with the permission of the owner of the servient estate," or by his license."* User will not be sufficient to establish the right if it is secret." The period of adverse occupancy required by the statute need not be all by one person, but may be by a number if they are in privity." It should be observed that the public cannot acquire an easement by right of flowage may be acquired by prescription. Williams v. Barber (Mich.) 62 N. W. 155. 2 9 Bodfish V, Bodfish, 105 Mass. 817; Cox v. Forrest, 60 Md. 74; Iselln v. Starln, 144 N. Y. 453, 39 N. E. 488; Humphreys v. Blasingame, 104 Cal. 40, 87 Pac. 804; Dalton v. Angus, 6 App. Cas. 740, affirming Angus v. Dalton, 4 Q. B. Dlv. 162; Dare v. Heathcote, 25 Law J. Exch. 245. For user held In- sufficient to establish an easement across a railroad company's right of way, see Andries v. Railway Co. (Mich.) 63 N. W. 526. And for acts held insufficient to create easements In water by prescription, see Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121; Mason v. Hortou, 67 Vt 266. 31 Atl. 291. 27 Reimer v. Stuber, 20 Pa. St. 458. Disability arising after the user is begun dees not Interrupt the acquisition of the right. Tracy v. Atherton, 36 Vt. 503; Wallace v. Fletcher, 30 N. H. 434. Contra, Lamb v. Crosland, 4 Rich. Law (S. C.) 536. 2 8 Schenley v. Com., 36 Pa. St. 29; Pentland v. Keep, 41 Wis. 490. 29 Burbank v. Fay, 65 N. Y. 57; Bachelder v. Wakefield, 8 Cush. (Mass.) 248; Blanchard v. Moulton, 63 Me. 434; Richard v. Hupp (Cal.) 37 Pac. 920. And see post, p. 460. so Smith v. Miller, 11 Gray (Mass.) 145; Perrin v. Garfleld, 37 Vt. 304; Calger V. Fee (Ind. Sup.) 39 N. E. 93. See Atkins v. Bordman, 2 Mete. (Mass.) 457. That no easement is acquired by the use of a way maintained by the owner of the land for his own convenience, see Wood v. Reed (Sup.) 30 N. Y. Supp. 112. 81 Wiseman v. Lucksinger, 84 N. Y. 81; Cronkhite v. Cronkhite, 94 N. Y. 323; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149; Colchester v. Roberts, 4 Mees. & W. 769. 3 2 Cook V. Gammon, 93 Ga. 298, 20 S. E. 332; Daniel v. North, 11 East, 372. But when the user is open and uninterrupted, the servient owner is charged with notice. Bushey v. Santiff, 86 Hun, 384, 33 N. Y. Supp. 473. 33 Melvin V. Whiting, 13 Pick. (Mass.) 184; Hill v. Crosby, 2 Pick. (Mass.) 466. BKAX. PROP. — 28 3o-i INCORPOREAL HEREDITAMENTS, (Cll. 13 prescription,^* tlioui^li a dedication may be presumed from use by tbe public.^' SAME— CLASSIFICATION. 222. The principal classifications of easements are the fol- lowing: (a) Continuous and discontinuous. (b) Appendant or appurtenant and in gross. (c) Negative and afQ.rniative. (d) Natural and conventional. There are a number of classifications of easements, which, though they have no great value in law, are often met with in the books, and therefore wUl be briefly mentioned here. The first of these is the distinction between continuous and discontinuous easements, which arises from the nature of the use of the easement,^® An ex- ample of the former is a right to lateral or subjacent support,'^ while a right of way is an instance of a discontinuous easement, since the right is only exercised at intervals.^* Another classifica- tion of easements is that which divides them into easements ap- pendant or appurtenant and easements in gross.^' The former class comprise easements proper, which cannot be severed from the tene- ment with which they are connected; that is, an easement belongs to an estate and not to a person. But easements in gross are not connected with any parcel of land, and exist in a person or in the public.*" Highways are easements of this kind, and there may be 8*Pearsall v. Post, 20 Wend. (N, Y.) Ill; Ackerman v. Shelp, 8 N. J. Law, 125. «e Verona Borough v. Allegheny Val. R. R., 152 Pa. St. 368, 25 Atl. 518; Kelenk v. Town of Walnut Lake, 51 Minn. 381, 53 N. W. 703. 8 8 Larsen v. Peterson (N. J. Ch.) 30 Atl. 1094; Fetters v. Ilumphreys, 18 N. J. Eq. 260. 87 See post, p. 365. 88 See post, p. 359. 89 Dennis v. Wilson, 107 Mass. 591; Spensley v. Valentine, 34 Wis. 154; McMahon v. WiUiams, 79 Ala. 288. *o See Abbot v. Weekly, 1 Lev. 176; Fitch v. Rawling, 2 H. Bl. 393; Mounsey V. Ismay, 1 Hurl. & C. 729, 3 Hurl. & C. 486; Hall v. Nottingham, 1 Exch. Div. 1; Tyson v. Smith, 9 Adol. & E. 406; Nudd v. Hobbs, 17 N. H. 524; § 223) INCIDENTS OF EASEMENTS. 355 easements in gross in respect to the flowage of water. ■'^ Easements are also divided, with respect to the obligation imposed on the owner of the servient estate, into negative easements and alBrmative ease- ments. Under the former the owner of the servient estate is pro- hibited from doing some acts of ownership on his own property, as an easement that land shall not be built upon,*^ while in the case of an affirmative easement the owner of the servient estate is merely re- quired to permit something to be done on his land, such as piling materials on it*^ Easements are also divided into natural and con- ventional. The former exist as the outgrowth of natural rights, and are necessary, as a matter of course, for the enjoyment of the dominant estate. Instances of natural easements are rights to sup- port of land and to the flowage of water.** Conventional easements, on the other hand, are those which are created by the agreements of the parties, and add rights to the dominant estate, which, though not strictly necessary, add to its enjoyment, such as rights of way or to light and air.*' SAME— INCIDENTS. 2S3. The principal riglits and incidents growing out of easements are the following: (a) The dominant owner must use his easement, and the servient owner his estate, in a reasonable manner. (h) The dominant owner must repair the easement. (c) The servient owner must not obstruct the easement. Knowles v. Dow, 22 N. H. 387. Such rights do not exist in some states. Acker- man V. Shelp, 8 N. J. Law, 125. An easement cannot be granted in gross so that it will be assignable. Ackroyd v. Smith, 10 C. B. 164; Boatman y. Lasley, 23 Ohio St. 614. See Garrison v. Rudd, 19 111. 558, and, contra, Goodrich v. Burbank, 12 Allen (Mass.) 459; Amidon v. Harris, 113 Mass. 59. Nor to give a right of action against a third person. Hill v. Tupper, 2 Hurl. & C. 121. *i De Witt v. Harvey, 4 Gray (Mass.) 486; Bissell v. Grant, 35 Conn. 288; Poull V. Mockley, 33 Wis. 482. 42 Hills V. Miller, 3 Paige (N. Y.) 254. 48 Voorhees v. Burchard, 55 N. Y. 98; Big Mountain Imp. Co.'s Appeal, 54 Pa. St. 361. And see Melvin v. Whiting, 13 Pick. (Mass.) 184. 44 Laumier v. Francis, 23 Mo. 181. 48 Stokoe v. Singers, 8 El. & Bl. 31. 35G INCORPOREAL HEREDITAMENTS. (Ch. 13 Use of the Easement. The owner of the dominant estate must make his use of the ease- ment reasonable, so as to interfere as little as possible with the servient owner's enjoyment of his land.**" On the other hand, the latter must not use his estate in such a way as to obstruct the ease- ment or unreasonably interfere with its enjoyment.*^ The j;Tant of an easement includes a grant of all rights necessary for its use. But the use of an easement must be confined to the object for which it is granted.^' Repairs of the Easement. In the absence of a contract providing otherwise, the owner of the dominant estate — that is, the one who has the benefit of the ease- ment — must keep it in repair and condition for use.*® The ease- ment carries with it the right to do anything necessary to make re- pairs."' Obstruction of the Easeme?it. The owner of the dominant estate may have an action for the obstruction of his easement by the servient owner, though no actual damage has been caused." The owner of the dominant estate may *« Kaler v. Beaman, 49 Me. 207. 4T Wells V. Tolman, 88 Hun, 438, 34 N. Y. Supp. 840; Bakeman v. Talbot, J81 N. Y. 366; Gerrish v. Shattuck, 132 Mass. 235; Welch v. Wilcox, 101 Mass. 162; Williams v. Clark, 140 Mass. 238, 5 N. B. 802; Connery v. Brooke, 73 Pa- St. 80. Cf. Baker v. Frick, 45 Md. 337; Attorney General v. Williams, 140 Mass. 329, 2 N. E. 80, and 3 N. E. 214. Plowing part of land over which 'there is a right of way is not necessarily an interference with the easement. Moffitt V. Lytle, 165 Pa. St. 173, 30 Atl. 922. A contract to permit the use •of a wall for a sign space is an easement, and implies the right of such access ito the wall as is necessarj- for the purijose Indicated. Gunning v. Cusack, 50 111. App. 290. 4 8 Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197; Waters v. Lumber Co., ll.") N. C. f)4S. 20 S. E. 718. And see post, p. 360. Nor can the use of the dominant tenement be changed so as to increase the burden. Wood v. Saund- ers, 10 Ch. App. 582. 4» Washb. Easem. & Serv. (4th Ed.) 730; Doane v. Badger, 12 Mass. 65. But cf. Pomfret v. Rlcroft, 1 Saund. 321; Morrison v. Marquardt, 24 Iowa, 35. 60 Thayer v. Payne, 2 Cush. (Mass.) 327; Prescott v. White, 21 Pick. (Mass.) 341; WilUams v. Safford, 7 Barb. (N. Y.) 309; Hamilton v. White, 5 N. Y. 9. 61 Joyce V. Conlin, 72 Wis. 607, 40 N. W. 212; McCord v. High, 24 Iowa, 336; Amoskeag Manuf 'g Co. v. Goodale, 46 N. H. 53. For acts held not to constitute § 224) DESTRUCTION OF EASEMENTS. 357 also remove obstructions to his easement, and may enter upon tlie servient estate for that purpose." In cases where the title to the easement is clear, the owner of the servient estate may be restrained by injunction from obstructing it." SAME— DESTRUCTIOM*. 224. Easements may be destroyed (a) By release. (b) By abandonment. (c) By license to the servient cwner. (d) By misuser. (e) By merger. An easement mav be released to the owner of the servient estate^ but such release is not good if by parol, unless it be executed.'* Ease- ments may also be lost by abandonment,'^'* but this does not apply where the easement has been granted, unless there has been claim of adverse right.'* Easements are lost by abandonment only when they have been acquired by prescription.'*^ An easement may also an obstruction, see Green t. Goff, 153 111. 534, 39 N. B. 975. That a gate is not an obstruction of a right of way, see Hailman v. Fick, 167 Pa. St. 18, 81 Atl. 342. But see Rowe v. Nally, 81 Md. 367, 32 Atl. 198. 6 2 Joyce V. Conlin, 72 Wis. 607, 40 N. W. 212; McCord v. High, 24 Iowa, 336. 5 3 Herman v. Roberts, 119 N. Y. 37, 23 N. E. 442; Frey v. Lowden, 70 Gal. 550, 11 Pac. 83S; Stallard v. Gushing, 76 Gal. 472, 18 Pac. 427; Schnitzius v. Bailey (N. J. Err. & App.) 32 Atl. 219; Martin v. Price [1894] 1 Gh. 276. 54 Dyer v. Sanford, 9 Mete. (Mass.) 395; Gomstock v. Sharp (Mich.) 64 N. W. 22. A right to use a stairway in a building may be destroyed by the de- struction of the building. Douglas v. Goonley, 84 Hun, 158, 32 N. Y. Supp. 444. 55 Snell V. Levitt, 110 N. Y. 595, 18 N. E. 870; Ganny v. Andrews, 123 Mass. 155; Hickox v. Railroad Go., 78 Mich. 615, 44 N. W. 143; Town of Freedom V. Norris, 128 Ind. 377, 27 N. E. 869; Steere v. Tiffany, 13 R. I. 568; Richard r. Hupp (Gal.) 37 Pac. 920. But see Jones v. Van Bochove, 103 Mich. 98, SI N. W. 342; Pratt v. Sweetser, 68 Me. 344; Duncan v. Rodecker (Wis.) 62 N. W. 533; Suydam v. Dunton, 84 Hun, 500, 32 N. Y. Supp. 333. 5 6 Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Barnes v. Lloyd, 112 Mass. 224; Riehle v. Heulings, 38 N. J. Eq. 20; Ford v. Harris (Ga.) 22 S. B. 144; Edgerton v. McMuUan, 55 Kan. 90, 39 Pac. 1021; Lovell v. Smith, a C. B. (N. S.) 120. See, also, Ward v. Ward, 7 Exch. 838. 67 Bannon v. Angier, 2 Allen (Mass.) 128; Barnes v. Lloyd, 112 Mass. 224; 358 INCORPOREAL nEREDITAMENTS. (Ch. 13 be destroyed by a license to the owner of the servient estate to do acts upon his hind which interfere with the exercise of the ease- ment; " for instance, an easement of light and air may be lost by ;i permission given the servient owner to erect a wall on his land which would obstruct the li^ht."" If the owner of the dominant • state does anything which increases the burden of the easement, he thereby destroys his easement, unless the increase of burden can lie separated from the original.*** Easements are also destroyed by merger; that is, by a union of the dominant and servient estates in the same person."* But if the dominant estate is of greater dura* tion than the servient, the easement will only be suspended during the continuance of the servient estate.®^ And if the title to the lat- ter estate is subsequently defeated, the result is the same, — a mere suspension of the easement.**^ "\Mien there is a merger, the ease- ment is extinguished, and is not renewed by a subsequent grant of the dominant estate, though the same or a similar easement may be implied, or may arise by necessity.®* Smyles v. Hastings, 22 N. Y. 217; Wiggins v. McCleary, 49 N. Y. 346; NitzeU V. Paschall, 3 Rawie (Pa.) 76; Lindeman v. Lindsey, 69 Pa. SL 93; Erb v. Brown, Id. 216; Bombaugh v. Miller, 82 Pa. St 203. But see Owen v. Field, 102 Mass. 90. 5 8 Morse v. Copeland, 2 Gray (Mass.) 302; Addison v. Hack, 2 GUI (Md.) 221; Liggins V. Inge, 7 Bing. 682. e» Winter v. Brockwell, 8 East, 308. See, also, Morse v. Copeland, 2 Gray (Mass.) 302. «o Washb. Easem. & Serv. (4th Ed.) 704; Jones v. Tapling, 11 C. B. (N. S.) 283. Cf. Harvey v. Walters, L. R. 8 C. P. 162. ei McAllister v. Devane, 76 N. C. 57; Ritger v. Parker, 8 Gush. (Mass.) 145. «2 Thomas v. Thomas, 2 Cromp., M. & R. 34. / 6 3 Tyler V. Hammond, 11 Pick. (Mass.) 193; Dewal v. Becker, 81 Md. 537, 82 Atl. 308. e* Hurlburt v. Firth, 10 Phila. (Pa.) 135; Kiefifer v. Imhoff, 26 Pa, St 438; Miller v. Lapham, 44 Vt 416; Hazard v. Robinson, 8 Mason, 272, Fed. Gas. No. 6,281. § 226) RIGHTS OF WAY. 359 SPECIFIC EASEMENTS. 225. The following specific easements will be considered: (a) Rights of way (p. 359). (b) Highways (p. 361). (c) Light and air (p. 363). (d) Lateral and subjacent support (p. 365). (e) Party walls (p. 366). (f) Easements in water (p. 368). SAME— RIGHTS OF WAY. 226. A right of way is an easement in favor of an indi- vidual or class of individuals to have a passage on an established line over land of the servient owner to and from land of the dominant owner. Rights of way are created by the rarious methods mentioned in dis- cussing easements in general. They, however, frequently arise by im- plication, as where land granted is represented as bounded or reach- ed by a street.^ ° This is the case where a map showing such a street is referred to in the deed.'* Ways of necessity are also said to arise by implication.** They can exist only over land of the grantor, not over that of a stranger.** Though the necessity need not be absolute, yet great inconvenience or expense will not be suflQ- cient.^° Ways of necessity arise chiefly through grants of parcels «B Tobey v. Taunton, 119 Mass. 404; Franklin Ins. Co. v. Cousens, 127 Mass. 258; Crow v. Wolbert, 7 Phila. (Pa.) 178; Ford v. Harris (Ga.) 22 S. E. 144. «6 Taylor v. Hopper, 62 N. Y. 649; Regan v. Light Co., 137 Mass. 37; Chapin V. Brown, 15 R. I. 579, 10 Atl. 639. «8 Holmes v. Seeley, 19 Wend. (N. Y.) 507; Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879; Pernam v. Wead, 2 Mass. 203. 6 9 Bass V. Edwards, 126 Mass. 445; Kuhlman v. Hecht, 77 111. 570; Taylor V. Warnaiiy, 55 Cal. 350; Tracy v. Asherton, 35 Vt. 52; Bullard v. Harrison, 4 Maule & S. 387. 70 Nichols V. Luce, 24 Pick. (Mass.) 102; Oliver v. Pitman, 98 Mass. 46; Francis' Appeal, 96 Pa. St. 200; Parsons v. Johnson, 68 N. Y. 62; Pentland V. Keep, 41 Wis. 490; Field v. Mark, 125 Mo. 502, 28 S. W. 1004. 360 IXCORPORKAL HEREDITAMENTS. (Ch. 13 of land to which there is no access. It is held that the grantor must have intended to give a right to pass over his land to enable the granted estate to be enjoyed.^ ^ Where such right of way exists, the owner of the senient estate has the first right to select the waj,^^ If he neglects to do so, the owner of the dominant estate may locate the way, doing as little damage as possible.'" The rule is the same as to the location of ways created by express agree- ment if it is not otherwise provided for.^* After a right of way has once been located, it cannot be changed without the consent of both parties." Ways of necessity may be used for all purposes necessary for the enjoyment of the dominant estate;^" but other ways can be used only for the purposes for which they were created.''^ Therefore one who has the right of way to drive beasts to one lot Ti Nichols v. Luce, 24 Pick. (Mass.) 102; Holmes v. Seely, 19 "Wend. (N. Y.) 507; Wissler v. Ueishey, 23 Pa. St. 333; Miller v. Richards (Ind. Sup.) 38 N. E. 854; Boyd v. Woolwine (W. Va.) 21 S. E. 1020; Clark v. Cogge, Cro. Jac. 170; Parker v, Welsted, 2 Sid. 39, 111; Pinnington v. Galland, 9 Exch. L But sue Kingsley v. Improvement Co., 86 Me. 279, 29 Atl. 1074. Cf. Worth- ington V. Gimson, 2 El. &. El. 618; Dodd v. Burchell 1 Hurl. & C. 113; Wheel don V. Burrows, 12 Ch. Div. 31. Where one conveys to a railroad company a right of way through his land, so as to cut off access to a part thereof, he haa a way of necessity over the land conveyed. New York & N. E. R. Co. v. Board of Railroad Com'rs, 162 ilass. 81, 38 N. E. 27. And see Morris v. Edgington, 3 Taunt. 24. 12 Schmidt v. Quinn, 136 Mass. 575; Russell v. Jackson, 2 Pick. (Mass.) 574. T8 Powers V. Harlow, 63 Mich. 507, 19 N. W. 257. 1* Hart V. Connor, 25 Conn. 331. T8 Wyukoop V. Burger, 12 Johns. (N. Y.) 222; Smith v. Lee, 14 Gray (Mass.) 473; Kraut's Appeal, 71 Pa. St 64; Karmuller v. Krotz, 18 Iowa, 352. When rights of way are acquired by prescription, the user must be of some definite track. Bushey v. Santiff, 86 Hun, 384, 33 N. Y. Supp. 473; Gamett v. City of Slater, 56 Mo. App. 207; Follendore v. Thomas, 93 Ga. 300, 20 S. E. 329. 7« Gunson v. Healy, 100 Pa. St. 42. A way of necessity ceases as soon as there is another way which the dominant owner can use. Holmes v. Goring, 2 Bing. 76. But see Proctor v. Hodgson, 10 Exch. 824. 7 7 Atwater v. Bodfish, 11 Gray (Mass.) 150; French v. Marstln, 24 N. H. 440; Allan v. Gomme, 11 Adol. & E. 759; Wimbledon and Putney Commons Conservators v. Dixon, 1 Ch. Dlv. 362; Henning v. Burnet, 8 Exch. 187; Corporation of London v. Riggs, 13 Ch. Div. 798. But see Newcomen v. Coulsou, 5 Ch. Dlv. 133; Cannon v. Villurs, 8 Ch. Div. 415; Abbott v. Butler, 69 N. H. 317. § 227) HIGHWAYS. ^^61 cannot drive beasts, over that way, to another lot also.^" Where there is such an excessive use of a riftht of waj', it will gi\e the servient owner a right of action, but will not justify him in closing the way.^" A right of way may include the right to erect and main- tain a bridge.*" In the absence of other arrangement, the owner of the dominant estate is required to keep the way in repair.*^ If the owner of the servient estate has agreed to repair, and fails to do so, those entitled to the use of the way may go upon other land of the servient owner, when necessary, to pass around obstructions." Rights of way may be for footpath merely or for carriages, or they may be for both foot and horse.*' Easements of this kind may be created in such form and with such conditions as the parties choose to impose, by their express contracts.** SAME— HIGHWAYS. 227. Highways are rights of ■way in the public in general. They may be either (a) Easements, or (b) Estates in fee simple. With highways owned in fee simple we have nothing to do in this connection. The ownership in such case is in the public, — the state '8 Howell V. Rex, 1 Mod. 190. And see Skull v. Glenister, 16 O. B, (N. S.) 81; Davenport v. Lampson, 21 Pick. (Mass.) 72; French v. Marstin, 32 N. H. 81G; Kirkham v. Sharp, 1 Whart. (Pa.) 323; Lewis v. Carstairs, 6 Whart. (Pa.) 193. Cf. Williams v. James, L. R. 2 C. P. 577; Parks v. Bishop, 120 Mass. 340. 7 9 Walker v. Gerhard, 9 Phila. (Pa.) 116; Hayes v. DI Vito, 141 Mass. 233, 4 N. E. 828. 80 See Schuylkill Nav. Co. v. Stoever, 2 Grant, Gas. (Pa.) 462. 81 Wynkoop v. Burger, 12 Johns. (N. Y.) 222; Taylor v. Whitehead, 2 Doug, 745. See Gerrard v. Cooke, 2 Bos. & P. N. R. 109. 8 2 So when the servient owner has obstioicted. Farnum v. Piatt, 8 Pick. (Mass.) 339; Leonard v. Leonard, 2 Allen (Mass.) 543; Kent v. Judkins. 53 Me. 160; Haley v. Colcord, 59 N. H. 7. But cf. Taylor v. Whitehead, 2 Doug. 745; Williams v. Safford, 7 Barb. (N. Y.) 309. 83 Ballard v. Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 Mees. & W. 245. 84 Whether a way has been created or granted Is In each case a matter of construction. Espley v. Wilkes, L. R, 7 Exch. 298; Kay v. Oxley, L. R. 10 Q. B. 860. 362 INCORPOREAL HEREDITAMENTS. (Ch. 13 or the municipality.*'' It has already been said that hijjhways are not easements proper, because they are held in j^oss, and not ap- pendant to any dominant estate.*" When a highway is only an easement, the owners on each side of the road hold the fee to the middle, subject to the right of the public to pass over it.*^ The ad- joining owners, therefore, are entitled to the trees, minerals, etc.®' Highways are usually acquired by dedication, either express *' or implied by user by the public.*" Highways may also be acquired by the exercise of the right of eminent domain, in which case compen- sation must be made for the land taken.®^ No deed or other formal act is necessary for the dedication of a highway to the public. The dedication is complete when made and accepted by the public,'' and use as a highway may be sufficient to constitute an acceptance.®' Un- til there is an acceptance by the public, it does not become bound to keep the road in repair, or liable for injuries caused by its being out of repair.** Dedication of a highway may be for special pur- se Washb. Easm. & Serv. (4th Ed.) 252. 8 8 See Deerfleld v. Railroad Co., 144 Mass. 325, 11 N. E. 105; Com. v. Low, 8 Pick. (Mass.) 408; Nudd v. Hobbs, 17 N. H. 524. 8T Adams v. Rivers, 11 Barb. (N. Y.) 390. 88 Maliepeace v. Wordcn, 1 N. H. 16; Tucker v. Eldred, 6 R. I, 404; Daily v. F>tate, 51 Ohio, 348, 37 N. E. 710. And see Lade v. Shepherd, 2 Strange, 1004; Reg. V. Pratt, 4 El. & Bl. 860; Perley v. Chandler, 6 Mass. 454; Codman v. Evans, 5 Allen (Mass.) 308; State v. Davis, 80 N. C. 351. 8 9 Com. V. Inhabitants of Nevs^bmy, 2 Pick. (Mass.) 51; Warren v. President, etc., of Town of Jacksonville, 15 111. 236. 80 James v. Sammis, 132 N. Y. 239, 30 N. E. 502; Buchanan v. Curtis, 25 Wis. 99. 81 And the owner is entitled to further compensation for an additional burden, such as a railroad, Williams v. Railroad Co., 16 N. Y. 97; or street railway, Craig V. Railway Co., 39 N. Y. 404; or pipes for natural gas, Bloomfield & R, N. Gaslight Co. v. Calkins, 62 N. Y. 386. But otherwise as to sewers and reservoirs, Stoudlnger v. Newark, 28 N. J. Eq. 187; West v. Bancroft, 32 Vt 367; or telegraph lines. Pierce v. Drew, 136 Mass. 75. 9 2 Bangor House Proprietary v. Brown, 33 Me. 309, Repairing may not show acceptance. State v. Bradbury, 40 Me. 154. 93 Buchanan v. Curtis, 25 Wis. 99; Witter v. Damitz, 81 Wis. 385, 51 N. W. 575; Brakken v. Railroad Co., 29 Minn. 41, 11 N. W. 124; Rex v. Inhabitants of Leake, 5 Bam. & Adol. 469. »* Reed v. Inhabitants of Northfleld, 13 Pick. (Mass.) 94- "^ 22S) LIGHT AKD AIR. 363 poses only.®" In any case a dedication can be made only by the owner of the fee,®' A dedication of streets to a city is implied by the owner of land platting it for city lots with streets between them.®^ For injuries to highways and obstructions of them the right of action is in the public. But if any person is specially damaged, he may have an individual action."* SAME— LIGHT AND AIR. 228. An easement of light and air is a right to the unin- terrupted flow^ of light, and possibly air, to the VTin- do-ws of a building over an adjoining lot. This right can be acquired by prescription in only a few of the United States. At common law, when one had a building near the boundary line of his land, with windows opening on the adjoining lot, and had en- joyed the access of light over such lot during the period required by the statute of limitations for the acquisition of an easement, he was held to have a right not to have the light obstructed.®' This right would be infringed by the erection of a wall or building which would shut out the light from the windows of the building of the dominant estate.^°° The power to acquire this easement by prescription has »8Ayres v.. Railroad Co., 52 N. J. Law, 405, 20 Atl. 54; Mercer v. Wood- gate, L. R. 5 Q. B. 2G; Arnold v. Holbrook, L. R. 8 Q. B. 96. 8 6 Baugan v. Mann, 59 111. 492; Lee v. Lake, 14 Mich. 12; Warren v. Brown, 81 Neb. 8, 47 N. W. 633. 87 Taylor v. Hopper, G2 N. Y. 649; Chapin v. Brown, 15 R. L 579, 10 Atl. 639. Land may be dedicated for public parks in the same manner as for streets. President, etc., of City of Cincinnati v. White, 6 Pet. 431. So as to a burial place. Beatty v. Kurtz, 2 Pet. 5GG; Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.) 407. 8 8 Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44; Rogers v. Rogers, 14 Wend. (N. Y.) 131; State v. Parrott, 71 N. C. 311. And see Bateman v. Bluck, 18 Q. B. Div. 870; McKee v. Perchment, 69 Pa. St. 342. For the right to go on adjoin- ing land when a highway is impassable, see Absor v. French, 2 Show. 28; Campbell v. Race, 7 Cush. (Mass.) 408. 89 Cross V. Lewis, 2 Bam. & C. 686; Compton v. Richards, 1 Price, 27; Ren- Bhaw V. Bean, 18 Q. B. 112. Cf. White v. Bass, 7 Hurl. & N. 722; Haynes V. King [1893] 3 Ch. 439; Callis v. Laugher [1894] 3 Ch. 659. 100 Tbe inconvenience caused must be appreciable. Back v. Stacey, 2 Car. it P. 465; W^ells v. Ody, 7 Car. & P. 410; Arcedeckne v. Kelk, 2 GifC. 683. 364 INCORPOREAL HEREDITAMENTS. (Ch. 13- beon rpoojrnizod in only a fow states.^"^ It may, however, be ac- quired by express grant, and in some states it is beld that it may be raised by implied grant, as when there is a conveyance of land with buildings on it which overlook a vacant lot of the grantor.^"* Where the easement may be acquired by prescription, its acquisition may be .prevented by the erection of any stnicture which shuts off the light before the full period has elapsed which is required by the statute of liniitntions.^*" Wlien the right exists, the burden on the servient estate must not be increased by the opening of new windows or the enlargement of old ones.^"* If the old building is destroyed or pulled down, the easement can be claimed for a new structure erected in its place only when the windows are substantially the same as be- fore.*°* A change in the use of the building, however, does not destroy nor enlarge the right.^°« In speaking of this easement, the word "air" is usually added to the word 'Qight," though it seems that this is incorrect, and that the easement is only for the passage of light.^°^ No easement in a view or prospect can be acquired by prescription. ^°^ 101 Gerber v. Grabel, 16 111. 217 (but contra, Guest v. Reynolds, 68 111. 478); Robeson v. Pittenger, 2 N. J. Eq. 57; Sutphen v. Tiierkelson, 38 N. J. Eq. 318; Durel V. Boisblanc, 1 La. Ann. 407; Clawson v. Primrose, 4 Del. Ch. 643. It is denied in the following: Parker v. Foote, 19 Wend. (N. Y.) 309; Keats v. Hugo, 115 Mass. 204; Mullen v. Strieker, 19 Ohio St. 135; Haverstick v. Sipe, 33 Pa. St. 368. So, by statute, In some states. 1 Stim. Am. St. Law, § 2254; 4 Shars. & B. Lead. Cas. Real Prop. 246. 102 Palmer v. Fletcher, 1 Lev. 122; U. S. v, Appleton, 1 Sumn. 492, Fed. Cas. No. 14,403; Sutphen v. Therkelson, 38 N. J. Eq. 318. But see Maynard v. Esher, 17 Pa. St. 222; Doyle v. Lord, 64 N. Y. 432; Rennyson's Appeal, 94 Pa. St. 147. 103 Bury v. Pope, Cro. Eliz. 118. And see, Pearson, P. J., in Shell v, Kem- merer, 13 Phlla. 502. And the easement may be lost by abandonment Moore V. Rawson, 3 Barn. & C. 332. But cf. Stokoe v. Singers, 8 El. & Bl. 31; Eccle- siastical Com'rs V. Kino, 14 Ch. Div. 213. 104 Blanchard v. Bridges, 4 Adol. & E. 176. 106 Cherrington v. Abney Mi!, 2 Vern. 646. 10 6 aiartln v. Goble, 1 Camp. 320. 107 But see American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302; Field v. Barling, 149 111. 556, 37 N. E. 850; Bamett v. Johnson, 15 N. J. Eq. 481. As to windmills, see Washb. Easem. (4th Ed.) 669. 108 Butt V. Gas Co., 2 Ch. App. 158. But see Klrkwood v. Finegan, 95 Mich. 64S, 55 N. W. 457; Kessler v. Letts, 7 Ohio Cir. Ct. R. 108. ■§§ 229-230) LATERAL AND SUBJACENT SUPPORT. 365 SAME— LATEEAL AND SUBJACENT SUPPORT. 229. The easement of lateral support is the right to have one's ground supported so that it will not cave in ■when an adjoining owner makes an excavation. It exists only for the land itself, and not for erec- tions on the land. 230. The easement of subjacent support is a similar right bet^veen the owners of land w^hich has been par- titioned horizontally. The right to lateral support is, as already said, a right to have land supported by the adjoining land.^°^ It is a natural, rather than a conventional, easement. The right exists only for the land itself, and not when the burden has been increased by greater weight placed upon the land through the erection of buildings or other structures.^ ^" The right to the support of land with the buildings on it may, however, be acquired by prescription.^ ^^ When such easement does not exist, the adjoining owner must, neverthe- less, make excavation in a reasonable manner, and give notice to the other party of his intention to excavate, so that the latter may take the necessary steps to prevent his buildings from falling in.^^'' The right to subjacent support is also a natural right, but ex- ists only where land has been partitioned horizontally. This is the case when *:he surface belongs to one owner and the right to the minerals imbedded in the soil to another. The latter must not so 109 Gilmore v. DriscoU, 122 Mass. 199; Tunstall v. Christian, 80 Va. 1; Trans- portation Co. V. Chicago, 99 U. S. 635. Cf. Corporation of Birmingham v. Al- len, 6 Ch. Div. 284. As to support of a house by a house, see Solomon v. Mas- ter, etc., of Mystery of Vintners, 4 Hurl. & N. 585; Richards v. Rose, 9 Exch. 218. no Thurston t. Hancock, 12 Mass. 220; Gilmore v. DriscoU, 122 Mass. 199; Panton v. Holland, 17 Johns. (N. Y.) 92; Smith v. Thackerah, L. R, 1 O. P. 564. But see Brown v. Robins, 4 Hurl. & N. 186. 111 Hunt V. Peake, Johns. Eng. Ch. 705; Partridge v. Scott, 3 Mees. & W. 220. 112 Lasala v. Halbrook, 4 Paige (N. Y.) 169; Moody v. McClelland, 39 Ala. 45; Austin V. Railroad Co., 25 N, Y. 334; Shafer v. Wilson, 44 Md. 268; Dodd v. Holme, 1 Adol. & E. 493; Chadwick v. Trower, 6 Bing. N. C 1. 36G INCOKPOKEAL HEREDITAMENTS. (Ch. 13 operate his mine as to cause the surface to fall in.^^' The person working the mines, however, is not required to furnish support for buildinf]:s which have been placed upon the land after the severance of the ownership of the mines and the surface, unless such increased easement has been acquired by lapse of time. But, even when build- inp:s have been thus placed upon the surface, there would be a liability for negligent excavations.^^* Horizontal Ownership of Buildings. The same principles apply to the horizontal ownership of build- ings. The owner of the upper stories of a hou-se has a right to sup- port from the ow^ner of the lower portion, and an easement in the use of the halls and stairs.^^' The owner of the lower floors has an easement of protection by the roof.^^* The two owners must so use their property as not to injure each other. But the law as to their rights is still very unsettled. Some cases hold that the upper owTier must keep the roof in repair; ^^^ others say that if he fails to do so the lower owner may enter to make the necessary repairs; while still other cases tend towards the French rule, which holds that the expenses are to be borne equally.^ ^® SAME— PARTY WALLS. 231. Party ■vsralls are "walls used to support contignous structures •which belong to different proprietors. A party wall d^es not necessarily have any connection with ease- ments, for it may "(1) belong to the adjoining proprietors as ten- ants in common;^" (2) it may be divided longitudinally into two 118 Jones V. Wagner, 66 Pa. St. 429; Humphries v. Brogden, 12 Q. B. Div. 739. 11* Marvin v. Mining Co., 55 N. Y. 538; Bonomi v. Backhouse, El., Bl. & El. 622; Rowbotham v. Wilson, 8 H. L. Cas. 348. 116 Mayo V. Newhoff, 47 N. J. Eq. 31, 19 Atl. 837; Rhodes v. McCormack, 4 Iowa, 3<)S; Humphries v. Brogden, 12 Q. B. Div. 739; Harris v. Ryding, 5 Mees. & W. 60. 116 Wright, C. J., in Rhodes v. McCormack, 4 Iowa, 368, 376. iiT Loring v. Bacon, 4 Mass. 575; Ottumwa Lodge, etc., v. Lewis, 34 Iowa, 67; Cheeseborough v. Green, 10 Conn. 318; Keilw. 98b, pi. 4; Anon., 11 Mod. 7. 118 Pierce v. Dyer, 109 Mass. 374; Loring v. Bacon, 4 Mass. 575. 119 Cubitt V. Porter, 8 Bam. &. C. 257; Watson v. Gray, 14 Ch. Div. 192. §231) PARTY ^VALLS. 367 strips, each strip belonging to the adjoining owner in severalty; ^-° (3) it may belong wholly to one proprietor, subject to a right held by the other to have it maintained as a party wall; (4) it may be divided longitudinally into two moieties, each moiety subject to a cross easement, a right of support in favor of the other." ^-^ Party walls are, however, usually built one-half on the land of each pro- prietor. If a wall is so built by one party, the other need not pay one-half its cost without an express agreement.^ -^ It is usual for one of the adjoining proprietors to build the wall and the other to pay his half when he has occasion to use the wall. In some states, by statute, one owner is permitted to build one-half of a wall on the land of an adjoining proprietor, whether the latter consents or not.^^^ Such a statute has been held unconstitutional in Massa- chusetts.^^* An agreement to pay for one-half of a party wall when used does not bind assignees unless recorded, or there is no- tice.^^° When walls are constructed one-half on the land of each, each owner has an easement in the land of the other for the sup- port of the wall.^^® But this easement in the other's land is lost by the destruction of the wall."^ When the wall becomes ruinous, either may repair and compel contribution by the other; ^^^ but 120 Matts V. Hawkins, 5 Taunt. 20. Where one intending to construct a wall within the line of his lot by mistalie extends his foundation slightly onto an ad- joining lot, the wall does not thereby become a party wall. Pile v. Peilrick, 167 Pa. St. 296, 31 Atl. 646, 647. 121 Thomp. Fixt. & Easem. 93; Burton v. Moffitt, 8 Or. 29. 122 Walker v. Stetson, 162 Mass. 86, 38 N. E. 18; Wilkins v. Jewett, 139 Mass. 29. 29 N. E. 214; McCord v. Herrick, IS III. App. 423; Preiss v. Parker, 67 Ala. 500. 123 1 stim. Am. St. Law, § 2170. 12* Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214. 12 B Sebald v. MulhoUand, 11 Misc. Rep. 714, 31 N. Y. Supp.' 863; Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Joy v. Bank, 115 Mass. 60; Cole v. Hughes, 54 N. Y. 444; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198. Cf. Frohman v. Dickin- son, 11 Misc. Rep. 9, 31 N. Y. Supp. 851. But cf. Savage v. Mason, 3 Cush. ^Mass.) 500; Maine v. Cumston, 98 Mass. 317; Standish v. Lawrence, 111 Mass. 111. 126 Brooks v, Curtis, 50 N. Y. 639; Ingals v. Plamondon, 75 111. 118; Andrae r. Haseltine, 58 Wis. 395, 17 N. W. 18. 127 Partridge v. Gilbert, 15 N. Y. 601; Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Hoffman v. Kuhn, 57 Miss. 746. 12 8 Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334, Cf., however, Pierce v. Dyer, 109 Mass. 374. 368 INCORPOREAL HEREDITAMKNTS. (Ch. 13 if the wall has been destroyed there is no right to compel the other party to stand half of the expense of rebuilding.^" Each owner, in using the wall, must do nothing to weaken it or otherwise to in- jure the adjoining proprietor.^"" Partition Fences. Partition fences are in many respects like party walls. They are usually eracted one-half on the land of each, and the obligation to repair is the same as in the case of party walls.^'^ The duty to maintain such fences may exist by reason of a statute,^^^ or it may arise from agreement or prescription.^"" Such fences are usually divided into halves, each owner being required to maintain his half. SAME— EASEMENTS IN WATER. 232. The o"wner of land fronting on a natural "water course has the right to have it maintained in its natural condition; that is, the water must not be prevented from coming to him or from flo"wing away, or be polluted. Water, as a subject of ownership, was discussed somewhat in our first chapter. Rights in water depend largely on whether the water is naturally on the land or has been brought there by artifi- cial means.^"* Eights in water in its natural state consist almost entirely in a right to use it as contrasted with ownership of it When there is a defined water course, one who owns the land over which it flows, or who owns land on one bank of the stream, has a 128 Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Partridge v. Gilbert, 15 N. Y. 601. 130 Dowling V. Hemings, 20 Md. 179; Brodbee v. Mayor, etc., of London, 4 Man. & G. 714. 181 1 Stim. Am. St Law, § 2185. One may be bound to repair the whole by prescription, Blnney v. Proprietors, 5 Pick. (^lass.) 503; Anon., Y. B. 19 Hen. VL p. 83, pi. 68; Star v. Rookesby, 1 Salk. 335; Lawrence v. Jenkins, L. R. 8 Q. B. 274; or by contract, Bronson v. Coffin, 108 Mass. 175, reversed as to measure of damages, 118 Mass. 15G. 132 1 stim. Am. St. Law, art 218. 133 Cowles V. Balzer, 47 Barb. (N. Y.) 502. IS* See ante, p. 4; Earl v, De Hart, 12 N. J. Eq. 280. § 232) EASEMENTS IN WATER. 369 right to hare the flow continae without unreasonable interference by the riparian owners, either above or below him.*"' In order that there may be such a water course, a continuous flow is not nec- essary. It is sufficient if water flows in the channels at certain sea- sons of the year.*" A riparian owner *'^ has a right to use the water in a reasonable way, but he must not divert it from its course,* or detain it more than a reasonable time.*"® So he has no right to corrupt the water which flows over his land, unless such right is acquired by prescription or otherwise.*'^ Furthermore, he must not dam up the water, and cause it to flow back on the lands of the owners above,**" though, of course, an easement of this kind may 1S6 Darlington v. Painter, 7 Pa. St. 473; Prescott v. White, 21 Picli. (Mass.) 841; Omelvany v. Jaggers, 2 Hill (S. C.) 634; Tyler v. Wilkinson, 4 Mason, S97, Fed. Cas. No. 14,312; Embrey v. Owen, 6 Exch. 353; Williams v. Mor- land, 2 Barn. & C. 910; Miner v. Gilmour, 12 Moore, P. O. 131; Wood v. Waud, 3 Exch. 748; Earl of Sandwich v. Railway Co., 10 Ch. Div. 707; Sampson v. Hoddinott, 1 C. B. (N. S.) 590. 126 Shields v. Arndt, 4 N. J. Eq. 234; Eulrich v. Richter, 41 Wis. 318; New York, C. & St. L. R. Co. v. Speelman, 12 Ind. App. 372, 40 N. E. 541; Rigney r. Water Co., 9 Wash. 576, 38 Pac. 147. 187 As to easements in persons not riparian owners, see Stockport Water- works Co. V. Potter, 3 Hurl. & C. 300, Ormerod v. Mill Co., 11 Q. B. Div. 155; Nuttall V. Braccwell, L. R. 2 Exch. 1; Bristol Hydraulic Co. v. P.oyer. 67 Ind. 230. * Hogg V. Water Co., 168 Pa. St. 456, 31 Atl. 1010; Green Bay & M. Caual Co. V. Kaukauna Water Power Co., 90 Wis. 370, Gl N. AV. 1121, and 63 N. W. 1019; Southern Marble Co. v. Darnell, 94 Ga. 231, 21 S. E. 531; Vernon Irri- gation Co. V. City of Los Angeles, 106 Cal. 237, 39 Pac. 762. But a stream may be diverted if it is returned to the established channels before passing off the land of the one diverting it. Missouri Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 275. 188 Pitts V. Lancaster Mills, 13 Mete. (Mass.) 156; Elliot v. Railway Co., 10 Cush. (Mass.) 191; Garwood v. Railroad Co., 83 N. Y. 400; Snow v. Parsons, 28 Vt. 459; Canfield v. Andrew, 54 Vt. 1; Gillis v. Chase (N. H.) 31 Atl. IS; Blodgett V. Stone, 60 N. H. 167; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762. Cf. Wheatley v. Chrisman, 24 Pa. St 298. As to custom to show reasonable use, see Canfield v. Andrew, 54 Vt L 189 Jackman v. Arlington Mills, 137 Mass. 277; Smith v. Cranford, 84 Hun, 818, 32 N. Y. Supp. 375; Lewis v. Stein, 16 Ala. 214; Hayes v. Waldron, 44 N. H. 580; People v. Elk River Mill & Lumber Co., 107 Cal. 214, 40 Pac. 486. 140 McCoy V. Danley, 20 Pa. St. 85; Sprague v. Worcester, 13 Gray (Mass.) 193; Railroad Co. v. Carr, 38 Ohio St 448. REAL PROP.— 24 370 IKCORPOREAL HEREDITAMENTS. (Ch. 13 be acquired,**^ and in some states a mill owner may exercise the power of eminent domain in order to acquire such right^*' Rights to change the natural uses of water are easements, and must be ac- quired in the same ways as other conventional easements.'*^ In some states, the one first appropriating a stream of water especially for use in irrigation obtains the first right to the water ^** to the ex- tent of his appropriation.**' The rights of owners whose lands border on navigable streams are the same, so far as the law of ease- ments is concerned, as the rights of other riparian owners ; but they must not obstruct navigation.**' Where rivers are used by boom companies for the transportation of logs, the rule is that the first in has the first right to the use of the current; but they must not cause unnecessary obstruction.**' 141 But long user will not give a right to prevent the erection of a mill above. Thurber v. Martin, 2 Gray (Mass.) 894. 1*2 Washb. Easem. (4th Ed.) 445. 1*3 Russell V. Scott, 9 Cow. (N. Y.) 279; Postlethwalte v. Payne, 8 Ind. 104; Smith V. Russ, 17 Wis. 234. Cf. Shury v. Piggot, 8 Bulst. 839. 1** Smith V. O'Hara, 43 Cal. 371; Schilling v. Rommger, 4 CJolo. 100; Barnes V. Sabron, 10 Nev. 217; Wimer v. Simmons (Or.) 39 Pac. 6. Such appropria- tion on public lands is authorized by congress. Rev. St. U. S. §§ 2339, 2340. The right may be lost by abandonment. Vemon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762; Beaver Brook Reservoir & Canal Co. V. St. Vraln Reservoir & Fish Co. (Colo. App.) 40 Pac. 1066. See, also, Sampson v. Hoddinott, 1 C. B. (N. S.) 590; Embrey v. Owen, 6 Exch. 353. 1*5 Creek v. Waterworks Co., 15 Mont. 121, 38 Pac. 459. 1*8 Ensmlnger v. People, 47 111. 384; Gifford v. McArthur, 55 Mich. 535, 22 N. W. 28; Bainbridge v. Sherlock, 29 Ind. 864; Fulmer v. Williams, 122 Pa. St. 191, 15 Atl. 726; Field v. Driving Co., 67 Wis. 569, 31 N. W. 17. And see Original Hartlepool Collieries Co. v. Gibb, 5 Ch. Div. 713. The public are not entitled to a tow path along a navigable river. Ball v. Herbert, 8 Term R. 253. Contra, Reg. v. Inhabitants of Cluworth, 6 Mod. 163; Young v. , 1 Ld. Raym. 725. i*T Butterfield v. Gilchrist, 53 Mich. 22, 18 N: W. 542; Sullivan v. Jemlgan, 21 Fla. 264. Cf. Brown v. Chadbourne, 31 Me. 9; Gwaltney v. Land Co., 115 N. C. 579, 20 S. E. 465. As to what streams are "floatable," see Commis- sioners of Burke Co. v. Catawba Lumber Co., 116 N. C. 731, 21 S. E. 941. § 232) EASEMENTS IN WATER. 371 Subterranean Waters. Underground waters, when not flowing in a defined course/** but existing merely as percolations, may be diverted,^*' although by so doing the wells of adjoining landowners may be injured, ^'^'' Upon the same principle, in working a mine, subterranean waters may be drawn off from the surrounding land without incurring liability.^ ''^ But underground percolations must not be fouled by the introduc- tion of foreign substances. ^"^ No easements can be acquired by prescription in subterranean waters, because the user necessary to acquire such rights would be unknown, and therefore not adverse.^'* Surface Waters. Surface waters are such as do not flow in a regular channel.*"* The cases are conflicting as to the duty of a lower owner to receive such waters onto his land,*"" but it certainly does not exist in the 1*8 See Grand Junction Canal Co. v. Shugar, 6 Ch. App. 483. Dudden v. Guardians of Poor of the Glutton Union, 1 Hurl. & N. 627; West Cumberland Iron & Steel Co. v. Kenyon, 6 Ch. Div. 773; Burroughs v. Saterlee, 67 Iowa, 396, 25 N. W. 808. i<9 Chatfield v. Wilson, 28 Vt. 49; Phelps v. Nowlen, 72 N. Y. 39. But see Pixley V. Clark, So N. Y. 520. Under Rev. St. U. S. § 2339. Rights in per- colating waters may be acquired by prior appropriation. Sullivan v. Mining Co. (Utah) 40 Pac. 709. 100 Bloodgood V. Ayres, 108 N. Y. 400, 15 N. E. 433; Chasemore v. Richards, 7 H. L. Gas. 349; and ante, p. 5. But see Chesley v. King, 74 Me. 164; Hollingsworth & Vose Co. v. Foxborough Water-Supply Dist (Mass.) 42 N. E. 574. 151 Acton V. Blundell, 12 Mees. & W. 324; Popplewell v. Hodliinson, L. R. 4 Exch. 248. The use must not be malicious or extravagant. Willis v. City of Perry (Iowa) 60 N. W. 727. Cf. Horner v. Watson, 79 Pa. St. 242. 182 Ball V. Nye, 99 Mass. 582; Wahle v. Reinbach, 76 111. 322; Pottstowu Gas Co. v. Murphy, 39 Pa. St. 257. But see Upjohn v. Board, 46 Mich. 542, 9 N. W. 845. 158 Lybe's Appeal, 106 Pa. St 626; Haldeman v. Bruckhart, 45 Pa. St. 514. Cf. Davis v. Spaulding, 157 Mass. 431, 32 N. E. 650; Acton v. Blundell. 12 Mees. & W. 324. But see Smith v. Adams, 6 Paige (N. Y.) 435; Balston v. Bensted, 1 Camp. 463. i64Gibbs V. Williams, 25 Kan. 214; Eulrich v. Richter, 37 Wis. 226, 41 Wis. 318; Hebron Gravel Road Co. v. Harvey, 90 Ind. 192; Earl v. De Hart, 12 N. J. Eq. 280; Bowlsby v. Speer, 31 N. J. Law, 351. 155 That he must receive surface water, see Adams v. Walker, 34 Conn. 466. Contra, Gannon v. Hargadon, 10 Allen (Mass.) 106; Barkley v. Wilcox, 86 872 INCORPOREAL HEREDITAMENTS. (Ch. 13 case of city property.^"' Surface waters must not be collected by one proprietor and discharged upon the land of his neighbor in any increased quantity in one place/ "^ unless the discharge be into a regular water course.*"' Surface water may be appropriated, and prevented from reaching the natural water courses, without incur- ring liability.* ''" Eaves' Drip. The right to have water fall from the roof of one's building onto the land of another is an easement, and is call 2d the right of "eaves' drip." *°° This right may be acquired by prescription.*'* Artificial Water Courses. As already stated, rights in water which has been brought upon land by artificial means differ in many respects from the rights which we have been discussing.*'^ For instance, an artificial wa- ter course cannot be established without the consent of the lower proprietor.*'' But when such a water course has been established, no right is acquired to have it continued,*'* though it must not be N. T. 140; Lessard v. Stram, 62 Wis. 112, 22 N. W. 2S4; Abbott v. Railway Co., 83 Mo. 271; Hill v. Railroad Ck)., 109 Ind. 511, 10 N. E. 410. 106 Farlis V. Newburyport, 10 Gray (Mass.) 28; Barliley v. Wilcox, 8G N. Y. 140. 16T Noonan v. Albany, 79 N. Y. 470; Curtis v. Railroad Co., 98 Mass. 428; Hogenson v. Railway Co., 31 Minn. 224, 17 N. W. 374; Hurdman v. Railway Co., 3 C. P. Div. 1G8. Wben by the operation of pumps more water Is dis- charged upon the land of a lower proprietor than would flow there naturally, the upper proprietor Is liable for any damage which he could have prevented at a reasonable cost Pfeiffer v. Brown, 165 Pa. St. 267, 30 AtL 844. XB8 MeCormlck v. Horan, 81 N. Y. 86; Waffle v. Railroad Co., 53 N. Y. 11; Peck V. Herrington, 109 111. 611; Jackman v. Arlington Mills, 137 Mass. 277. iBDBowlsby V. Speer, 31 N. J. Law, 351; Broadbent v. Ramsbotham, 11 Exch. 602. 160 Neale v. Seeley, 47 Barb. (N. Y.) 314. Cf. Billows v. Sackett, 15 Barb. (N. Y.) 96; Harvey v. Walters, L. R. 8 C. P. 162. 161 Neale v. Seeley, 47 Barb. (N. Y.) 314. 162 Ante, p. 368. 16 8 Norton v. Volentine, 14 Vt. 239. 164 Norton v. Volentine, 14 Vt 239; Wood v. Waud, 8 Exch. 748; Greatrex V. Hay ward, 8 Exch. 291; Arkwright v. Gell, 5 Mees. & W. 203; Brymbo Water Co. V. Lesters Lime Co., 8 Reports, 329. But such a right may be acquired by prescription. Cole v. Bradbury, 86 Me. 380, 29 Atl. 1097. § 233) PROFITS A PRENDRE. 373 maliciously fouled by the one establishing it.*" The right to lay water pipes across another's land is an easement/^" and carries with it the right to enter on such land to repair the pipes.^" PROFITS A PRENDRE. 233. A profit a prendre is a right exercised by one man in the land of another, accompanied by a partici- pation in the profits of that land. Profits h prendre have already been distinguished from ease- ments as being a right to take a profit out of another man's land.^®* These rights may be as various as the nature of the soil and the things which grow thereon or are imbedded in it will permit.^*® For instance, there may be a right to mine for metals or for coal, a right to take wood or turf, or any other product of the land."° Profits k prendre have to do with our system of law chiefly as rights of common. These rights of common were privileges which the lord of an English manor granted to his tenants to take certain profits from his waste land. The principal rights of common were (1) common of pasture, (2) common of turbary, (3) common of esto- vers, (4) common of piscary. The first, or common of pasture, whs- a right in the tenants to turn their cattle out to graze on the lord's* waste. The number of cattle which each tenant had a right to de- pasture was strictly regulated by the local customs.^^* Commons of pasture are either appurtenant or appendant.^" The latter ex- 16 6 Magor V. Chadwick, 11 Adol. & E. 571. 16C Goodrich v. Burbank, 12 Allen (Mass.) 459; BIssell v. Grant, 35 Conn. 288. Cf. Amidon v. Harris, 113 Mass. 59. 167 See Goodrich v. Burbank, 12 Allen (Mass.) 459. So to enter and clean a railway for a mill. Prescott v. White, 21 Pick. (Mass.) 341. i«8 Ante, p. 350. See, also. Race v. Ward, 4 El. & BI. 702; Wlckham v. Hawker, 7 Mees. & W. 63. 169 A right to take water from a spring is not a profit a prendre. Hace v. Ward, 4 El. & Bl. 702. 170 Waters v. Lilley, 4 Pick. (Mass.) 145; Tinicima Fishing Co. v. Carter, 61 Pa. St. 21; Hill v. Lord, 48 Me. 83. 171 Whitelock v. Hutchinson, 2 Moody & R. 205; Carr v. Lambert, L. R. 1 Exch. 168. 17 2 2 Bl. Comm. 33. 374 INCORPOREAL HEREDITAMENTS, (Ch. 13 1st only In connection with arable land,*^' and give a right to pasture no other beasts than those of the plow; that is, those beast? which are necessary to the cultivation of the land to which the common is appendant. Commons of pasture appendant do not ex- ist in the United States. Commons of pasture appurtenant may exist in connection with any kind of land, and give a right to pasture other beasts than those of the plow.^'^* Common of turbary is the right to take turf or peat for fuel to bum in the tenant's house. The same term would apply to the right to take coal.^''' Common of estovers corresponded to the right of estovers, which has already been defined,"' and the kinds are the same. Common of piscary is a right to fish in the lord's waters.*'^'' It has been seen that the owner of land has the exclusive right to fish in waters thereon, ex- cept in the case of navigable rivers.^^* Such an owner must not, however, obstruct the passage of fish up and down.^^* The right to fish in another man's waters may be created by express grant or acquired by prescription.^*" The right to take fish is now ver\ largely regulated by statute in the various states. With rights of common, or any other profits k prendre, there is no obligation to maintain a supply of the things to which the right exist.-^^ Com- mons are the same as easements in their method of creation ^** and i73 Anon., Y. B. 26 Hen. VIII., p. 4. pi. 15. 174 Cowlam V. Slack, 15 East, 108; Commissioners of Sewers v. Glasse, L. R. 19 Eq. 134; Baylls v. Tyssen-Amhurst, 6 Ch. DIv. 500. 17 6 2 Bl. Comm. 34. See Wilkinson v. Proud, 11 Mees. & W. 33; Caldwell v. Fulton, 31 Pa. St. 475; Massot v. Moses, 3 S. C. 168. »7 6 Ante, p. 81. 1T7 2 El. Comm. 34. 17 8 Ante, p. 5. 17 9 Parker v. People, 111 111. 581; Boatwrlght v. Bookman, 1 Rice (S. C.) 447. And see Case v. Weber, 2 Cart. (Ind.) 108. isoTreary v. Cooke, 14 Mass. 488; Melvin v. Whiting, 7 Pick. (Mass.) 79; Smith V. Kemp, 2 Salk. 637; Benett v. Costar, 8 Taunt. 183; Seymour y. Courte- nay, 5 Burrows, 2814. 181 See Rivers v. Adams, 3 Exch. Div. 361; Chilton v. Corporation of Lon- don, 7 Ch. Div. 735. i82Tottel V. Howell, Noy, 54; Duke of Somerset v. Fogwell, 5 Barn. & C. 875; Bailey v. Stephens, 12 C. B. (N. S.) 91; Pitt v. Chick, Hut. 45; Huntington V. Asher, 96 N. Y. 604. Common appendant can be acquired only by prescrip- tion. 2 Bl. Comm. 33. And see Smith v. Floyd, 18 Barb. (N. Y.) 522; Smith T. Gatewood, Cro. Jac. 152. §§ 234-235) RENTS. 375 destruction.*" They are subject to merger,*** and cvJmmon ap- purtenant is extinguished by an alienation of a part of tlie land to which the right is attached.**" They descend with the land, but cannot be devised separate from the land.**' Rights of common are rare in the United States, but a number of cases have come be- fore the courts, in which these rights have been considered. For any more than this brief outline of rights of common the reader is referred to those cases which will be found in the notes.* *^ Profits k prendre other than rights of common are merely matters of con- tract rights between the owner of the land and the grantee of the profit.*** They are closely allied to licenses, which have already been considered.*** RENTS. 234. Rent is a profit issuing out of land, which is to be rendered or paid periodically by the tenant. Rents are of the foUo^ng kinds: (a) Rent service. (b) Rent charge. (c) Rent seek. 235. Rents charge and seek are called "fee farm rents." 183 Van Rensselaer y. Radcliflf, 10 Wend. (N. Y.) 639. See Drury v. Kent, Cro. Jac. 14. 18* Bradshaw v. Eyre, Cro. Eliz. 570; Saundeys v. Oliff, Moore, 467. 18B Tyrringham's Case, 4 Coke, 36b; Van Rensselaer v. Radcllff, 10 Wend. (N. Y.) 639; Watts v. Coffin, 11 Johns, (N. Y.) 495; Leyman v. Abeel, 16 Johns. (N. Y.) 30; Livingston v. Ketcham, 1 Barb. (N. Y.) 592; Livingston v. Ten Broeck, 16 Johns. (N. Y.) 14; Bell v. Railroad Co., 25 Pa. St, 161. But see Hall V. Lawrence, 2 R. L 218. 186 Livingston v. Ketcham, 1 Barb. (N. Y.) 592, But see Welcome v. Upton, 6 Mees. & W. 536; Leyman v. Abeel, 16 Johns. (N, Y.) 30, As to apportion- ment of commons, see Van Rensselaer v. Radcliff, 10 Wend, (N. Y.) 639; Liv- ingston v. Ten Broeck, 16 Johns. (N. Y.) 14, 187 Van Rensselaer v. Radcliff, 10 Wend, (N. Y.) 639; Livingston v. Ten Broeck, 16 Johns, (N, Y,) 14; Leyman v. Abeel, Id. 30; Smith v, Floyd, 18 Barb, (N. Y.) 522; Livingston v, Ketcham, 1 Barb, (N, Y,) 592; Inhabitants of 188 Anon., Dyer, 285, pi, 40, See Wilson v. Mackreth, 3 Burrows, 1824; Oox V. Glue, 5 C, B, 533. 189 Ante, p. 165. 376 INCORPOREAL HEREDITAMENTS. (Ch. 13 Rents have already been considered in treating of landlord and tenant,"^ but they will here be discussed as incorporeal heredita- ments. As such they are rights to receive money out of the profits of land. Estates may be created in rents, and for such purpose the same words of limitation are to be used as in creating estates in corporeal property.^^^ Estates so created are good only to the ex- tent of the grantor's interest in the rent or in the land out of which the rent issues. Estates in rent are subject to dower and curtesy, like corresponding corporeal estates; ^^^ and when the estate in the rent is one of inheritance it descends to the heirs."* The classes of rents have been named in the black letter. Rent service was the only kind of rent originally known to the common law. It was accompanied by tenure and was given as a compensation for the services for which the land originally was liable. Distress was always an incident of rent service.^^"* The statute of quia emptores, by abolishing subinfeudation, prevented the creation of a rent service in fee; ^** but such rents may exist in those states in which the statute of quia emptores has not been adopted,"^ and they may exist in all states when the rent is less than a fee simple."* A rent seek is one which is created by agreement of the parties, but no relation of tenure exists, and there was no right of distress at common law for the recovery of the rent,"* though the right was given by the statute of 4 George II. c. 28, § 5. Rent charge is the Worcester v. Green, 2 Pick. (Mass.) 425; Bell v. Railroad Co., 25 Pa. St. 161; Trustees of Western University v. Robinson, 12 Serg. & R. 29; Carr v. Wallace, 7 Watts (Pa.) 394; Hall v. Lawrence, 2 R, I. 218; Peck v. Lock wood, 5 Day (Conn.) 22. 191 Ante, p. 134. 182 Van Rensselaer v. Hays, 19 N. Y. 68; Van Rensselaer v. Read, 26 N. Y. 558. 188 2 Washb. Real Prop. (5th Ed.) 288; ante, p. 87. 18* See Sacheverel v. Frogate, 1 Vent 161. But it may be a chattel only, as when reserved on a lease for years. Knolles' Case, Dyer, 5b. i9» Kenege v. Elliot, 9 Watts (Pa.) 258. i8« Van Rensselaer v. Read, 26 N. Y. 563; Van Rensselaer y. Hays, 19 N. Y. 68. i»T Wallace v. Harmstad, 44 Pa. St. 492; Ingersoll v. Serg^nt, 1 Whart (Pa.) 837. See ante, p. 30. i»«2 Washb. Real Prop. (5th Ed.) 286. 10 9 2 Bl. Comm. 42; Cornell v. Lamb, 2 Cow. (N. Y.) 652. §§ 234-235) RENTS. 877 same thing as rent seek, except that a right of distress is given by the original agreement of the parties.*"" These two forms of rent are called collectively "fee farm rents," and differ only in the mattcf of the right of distress. Fee farm rents seldom occur in the United States. Thev may be used for the same purpose as a mortgage. Fee farm rents are often used in England to raise portions for heirs and jointures for married women. ^°^ Rents may be created either by deed ^"^ or by prescription. ^^^ When created by deed, it may be by a grant of a rent to a person to whom no estate in the land is conveyed, or by a reservation of a rent out of land granted.-"* Rents may be created by any form of conveyance which is sufficient to transfer other incorporeal hereditaments, and also they may be granted in trust, or conveyed by way of uses. After a rent has been created, it may be transferred like any other estate.^ °' The rules governing assignments of rent of the land out of which they issue, and of the reversion, if there be one, have already been con- sidered.^"' Although the rule was otherwise at common law, the owner of a rent may now divide it up, or it may descend to several heirs.^"^ When the owner of a rent service purchases part of the land out of which the rent issues, or releases a part of the rent to the owner of that land, the rent is apportioned pro rata.^"^ With a rent charge, however, it is otherwise, and the same acts would cause an extinguishment of the rent, because no apportionment is possi- ble except by a new agreement of the parties.'"" It is otherwise, soo Van Rensselaer v. Read, 26 N. Y. 558; Hosford v. Ballard, 39 N. Y. 147; Van Rensselaer v. Hays, 19 N. Y. 68. But cf. Turner v. Lee, Cro. Car. 471. And see contra, Hool v. Bell, 1 Ld. Raym. 172. 201 And see Scott v. Lunt, 7 Pet. 596; Foltz v. Huntley, 7 Wend. (N. Y.) 210; Adams v. Bucklin, 7 Pick. (Mass.) 121; Williams's Appeal, 47 Pa. St 283. 20 2 ingersoll v. Sergeant, 1 Whart. (Pa.) 337; Taylor v. Vale, Cro. Eliz. 166. Cf. Williams v. Hayward, 1 EL & El. 1040. 20 3 Wallace v. Presbyterian Church, 111 Pa. St 164, 2 Atl. 347. «04 Scott V. Lunt 7 Pet 596; Folts v. Huntley, 7 Wend. (N. Y.) 210. 205 Van Rensselaer v. Read, 26 N. Y. 558; Van Rensselaer v. Hays, 19 N. Y. 68. Cf. Trulojk v. Donahue, 76 Iowa, 758, 40 N. W. 696. 208 Ante, p. 147. 207 Cook V. BrighUy, 46 Pa, St. 439; Farley v. Craig, 11 N. J. Law, 262. But see Ryerson v. Quackenbush, 26 N. J. Law, 236. 208 Co. Litt § 222; Ingersoll v. Sergeant, 1 Whart. (Pa.) 337. 20 9 Dennett v. Pass, 1 Bing. N. C. 388. But see Farley v. Craig, 11 N. J. Law, 262. S78 INCORPOREAL HEREDITAMENTS. (Ch. 13 however, when part of the land has come to the owner of the land by descent, instead of by his own act.^'" An eviction of the tenant from the land out of which the rent is reserved will extinguish the rent, but, if the eviction is from part of the land only, the rent will be apportioned. But if the eviction is by the owner of the rent, though it be from only part of the land, the rent is extinguished.^^* Apportionment of rent as to time has been considered in another place."' The doctrine of merger applies to rents."' Distress, as a remedy for rent, we have already considered,"* as well as cov- enants for the payment of rent,"" and conditions of re-entry for its nonpayment."' The remedy by which rent may be recovered by action is governed by the form of instrument creating the rent. Thus, if the rent is created by indenture, covenant is the proper form of action;"^ while, If the creation was by a deed poll, as- sumpsit would be the remedy.'" Debt for rent lies in nearly all cases.'" FRANCHISES. 236. **A franchise is a privilege or immmiity of a public nature, which cannot be legally exercised without legislative grant." At common law, franchises are hereditaments. «io Cruger v. McLaury, 41 N. T. 219, 223. «ii 2 Washb. Real Prop. (5th Ed.) 289l «i2 Ante, p. 60. 813 Cook V. Brightly, 46 Pa, St 439. ai* Ante, p. 145. 215 Ante, p. 140. «i« Ante, p. 150. 217 Finley v. Simpson, 22 N. J. Law, 811. And see Tharsby r. Plant, 1 Ley. 259; Stevenson v. Lambard, 2 East, 575. But cf. Mlhies v. Branch, 5 Maule & S. 411. 218 Goodwin v. Gilbert, 9 Mass. 510; Johnson v. Muzzy, 45 Vt. 419; Hinsdale V. Humphrey, 15 Conn. 431. And cf. Falhera t. Corbret, 2 Barnard, 386; Johnson v. May, 3 Lev. 150. 219 FareweU v. Diclienson, 6 Barn. & C. 251; Reade v. Johnson, Cro. Eliz. 242; Newcomb v. Harvey, Garth. 161; Stroud v. Rogers, 6 Term. R. 63, note; Case of Loringe's Ex'rs, Y. B. 26 Edw. III., p. 10, pi. 5; Gibson v. Kirk, 1 Q. B. 850; Thomas v. Sylvester, L. R. 8 Q. B. 368. But see Marsh v. Brace, Cro. Jac. 334; Bord v. Cudmore, Cro. Car. 183; Pine v. Leicester, Hob. 87; Humble v. Glover, Cro. Eliz. 328; Webb v. Jiggs, 4 Maule & S. 113. § 236) FRANCHISES. 379 At common law, franchises are heritable; but now they are usu- ally held by corporations, and corporations can have no heirs. So, too, franchises are now usually granted for a term of years, and not in fee.^^" The law of franchises now pertains more properly to the law of corporations, and we will give only a brief account of some of the common-law rules. A franchise need not necessarily be a monopoly, but may be nonexclusive. Franchises are alienable, and are liable for the debts of their owners.^*^ A franchise is in the nature of a contract, being, on the one hand, a grant by the state or a municipality of certain rights and privileges which could not be otherwise exercised, in consideration for certain benefits to the public, to be supplied by the grantee. A failure of the grantees to carry out the purposes for which the franchise was granted gives cause for forfeiture of the franchise. But forfeiture is had only at the suit of the government'*^ Where an exclusive franchise has been granted, it assumes the character of a contract which is pro- tected by the constitutional provisions against impairing the obliga- tion of the contract, and therefore no conflicting franchises can be granted.^ ^^ An exclusive franchise, however, like other property, may be taken under the right of eminent domain.*'* One of the most usual franchises at common law was the right to maintain and operate a ferry.'" A right of this kind is personal property in Iowa.'" A riparian owner has no right to set up a ferry on a nav- 220 Stark v. M'Gowen, 1 Nott & McC. (S. C.) 887; Clark v. White, 5 Bush. (Ky.) 353; Conway v. Taylor, 1 Black, G03. 2 21 2 Washb. Real Prop. (5th Ed.) 310; Greer v. Haugabook, 47 Ga. 282. But see Foster v. Fowler, 60 Pa. St. 27; Yellow River Imp. Co. v. Wood Co., 81 Wis. 554, 51 N. W. 1004. 22 2 Chicago City Ry. Co. v. People, 73 111. 541; Jeffersonville v. The John Shallcross, 35 Ind. 19; Greer v. Haugabook, 47 Ga, 282. 22 3 Milhan v. Shai-p, 27 N. Y. 611; Newburgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (N. Y.) 101; Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.) 1; McRoberts v. Washburne, 10 Minn. 23 (Gil. 8). But see Hopkins v. RaUroad Co., 2 Q. E. Div. 224; Ft Plain Bridge Co. t. Smith, 30 N. Y. 44. 224 West River Bridge Co. v. Dix, 6 How. 507; In re Towanda Bridge Co., 91 Pa. St. 216. 225 Ipswich V. Browne, Sav. 11; Peter v. Kendal, 6 Barn. & C. 703, 711; Mabury v. Ferry Co., 9 O. C. A. 174, 60 Fed. 645. «a9 Lippencott v. Allander, 27 Iowa, 460. 380 INCORPOREAL HEREDITAMENTS. (Ch. 13 iffable river without authority from the state.'" When a franchise for a ferry has been accepted by the grantees, they are bound to provide accommodation for the public, and are liable for injuries caused by defect in their boats and other appliances. On the other hand, they become entitled to take toll."^ If an exclusive fran- chise has been granted for maintaining a ferry, it includes the right to enjoy it, free from interference by contiguous and injurious com- petition.-'* If another ferry was established so near as to produce such effect, it would constitute a nuisance.'^" Franchises for bridges and turnpike roads are subject to the same rules as thnoA for ferries. "^ 227 Mills V. Learn, 2 Or. 215; Prosser v. Wapello Co., 18 Iowa. 827. But see Chenango Bridge Co. v. Paige, 83 N. Y. 178; Cooper v. Smith, 9 Serg. & R. (Pa.) 26. 228 Ferrel v. Woodward, 20 Wis. 458; Willoughby v. Horrldge, 12 C. B. 742. 22 9 Huzzey v. Field, 2 Cromp., M. & R. 432; Long v. Beard, 3 Murphy (N. C.) 57; Aikin v. Railway Corp., 20 N. Y. 370. So building a bridge may interfere with a ferry. Gates v. M'Daniel, 2 Stew. (Ala.) 211; Smith v. Haskins, 3 Ired. Eq. (N. C.) 613. Cf. Newton v. Cubitt, 12 0. B. (M. S.) 32, affirmed 13 C. B. (N. S.) 864. 230 Midland Terminal & Ferry Co. v. Wilson, 28 N. J. Eq. 537; Collins v. Sw- ing, 51 Ala. 101; Walker v. Armstrong, 2 Kan. 198. 231 Ft. Plain Bridge Co. v. Smith, 80 N. Y. 44; President, etc., of Newburgh & Cochecton Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 101; Norrls v. Team- sters' Co., 6 CaL 690; Proprietors of Charles Elver Bridge t. Proprietors of Warren Bridge, 11 Pet. 420. § 237) LEGAL CAPACITY TO HOLD AND CONVBY REALTY. 381 CHAPTER XIV. LEGAL CAPACITY TO HOLD AND CONVEY REALTY. 237. Personal Capacity. 238. Infants. 239-240. Persons of Unsound Mind. 241-242, Married Women. 243-244. Aliens. 245. Corporations. PERSONAL CAPACITT. 237. Personal capacity to convey real estate is, in gen- eral, the same as capacity to contract. The power to take and hold real estate is greater in some in- stances than the po-wer to convey it. Personal capacity in connection with power to take, hold, and convey real estate has already been mentioned in connection with the various subjects of which we have treated. In the main, how- ever, the topics which have already been considered have been treat- ed of only in connection with normal persons. Power to convey real property is, in general, the same as the power to make contracts.^ Disabilities connected with personal capacity are of two kinds, — natural, such as that of insanity, and legal, as in case of married women and corporations. Some disabilities, such as infancy, may be both natural and legal. The degree of disability varies in each case. It has already been said that some persons have power to hold land, but cannot convey it. For instance, persons under disa- bility may take land by descent, though by reason of insanity or some other cause they might have no power to make a binding contract to sell it. Certain disabilities which arise from the relation of mort- gagor and mortgagee, trustee and cestui que trust, have been treated 257. Modem Statutory Conveyances. 258. Registered Titles. 259-260. Requisites of Deeds. 261. Property to be Conveyed. 262. Words of Conveyance. 263-264. Description of the Property, 265. Execution of the Writing. 266. Delivery and Acceptance, 267. Acknowledgment. 268. Witnesses. 269. Registry. 270. Covenants for Title. 271. Covenant of Seisin. 272. When Broken. 273. How Brolvon. 274. Covenant against Incumbranceit 275. How Broken. 276. Covenant of Warranty. 277. How Broken. 278. Special Warranty. 279. Covenant for Further Assuranca, 280. Estoppel. . 281. Adverse Possession. 282. Accretion. 283. Devise. 284. Descent. 285. Judicial Process. 286. Conveyances under Licences. 287. Conveyances under Decrees. 288-290. Tax Tltlos. 291. Eminent Domain. § 251) ACQUISITION OF TITLB BY STATE. 399 TITLE DEFINED. 260. Title is the means by -which the o"WTiership of real property is acquired and held. This is either (a) By descent, or (b) By purchase. The fact which in any case gives or creates ownership over real property is called title. Title signifies the manner in which estates and interests in land are acquired. At the beginning of real-prop- erty law in any country there must be an original acquisition of title to land. After title has been thus acquired all subsequent acquisitions of title to the same land must be by transfer of the title. Descent and PurcTiase. All titles are said to be acquired by descent or by purchase. Purchase means more than mere buying, it includes the acquisition of title by devise or by gift. In short title by purchase means title acquired in all ways except by descent, ACQUISITION OF TITLE BY STATR 251. Title is acquired by the state (a) By discovery, conquest, and treaty. (b) By confiscation and escheat. (c) By exercise of the right of eminent domaiii. (d) By ordinary transfer from individuals. Discovery^ Conquest^ and Treaty. In the United States the title to the land was acquired by Eu- ropean governments by discovery. The rights so gained were claimed to be exclusive against other nations, though certain rights were recognized in the Indians as occupants.^ Great Britain ac- quired title to the land within the limits of the original colonies partly by discoveiy and partly by conquests and treaties. Rights so acquired were granted to proprietors and corporations, and these 1 Martin v. Waddell's Lessee, 16 Pet. 367; Fletcher v. Peck, 6 Cranch, S7. See, aa to Indian titles, 1 Dembitz, Laud Tit. 5 65. 400 TITLE. (Ch. 16 In turn purchased the rights of the Indians. These conveyances bj the Indians were held not to convey the freehold, but merely to release the rights of the grantors.^ Private persons were, in the main, prohibited from buying lands from the Indians without authority from the government of the colony in which the lands were situated.* The rights of the crown of Great Britain passed as a result of the Revolutionary War to the states and to the United States.* Tlie rights of the states in land thus acquired, which had not been disposed of to actual settlers, were nearly all conveyed at a later time to the general government. The lands held by the United States as public domain have been increased since that time by various treaties and purchases, the treatment of which pertains rather to history than to law. Confiscation cund Escheat. In some states the lands of persons convicted of treason or felony are confiscated by the state," and in nearly all of the states, if a person dies intestate, leaving no heirs, his real property escheats to the state.' This kind of escheat is not the same as the feudal escheat which a lord could claim on the death of his tenant without heirs.^ Eminent Domain. The acquisition of land by the state under the power of eminent domain is subject to the same rules as acquisition in this way by 2 Johnson v. Mcintosh, 8 Wheat 543; Cherokee Nation v. Georgia, 5 Pet I, 17; U. S. v. Cook, 19 Wall. 591. 8 Goodell V. Jackson, 20 Johns. (N. Y.) G93. And see Marshall, C. J., In Johnson v. Mcintosh, 8 Wheat 543. * Martin v. Waddell's Lessee, 16 Pet. 3G7; Com. v. Roxbury, 9 Gray (Mass.) 451; People v. Ferry Co., 68 N. Y. 71, 78. 6 1 Stim. Am. St Law, § 11G2. The United States constitution forbids for- feiture beyond the life of the offender. Under the act of July 17, 1862, con- fiscating the property of persons in rebellion, the offender had no estate re- maining in him which he could convey. Wallach v. Van Riswick, 92 U. S. 202. When a forfeiture Is enforced, the United States or state takes only the title of the offender. Borland v. Dean, 4 Mason, 174, Fed. Gas. No. 1,660; Shields v. Schiff, 124 U. S. 351, 8 Sup. Ct 510, « 1 Stim. Am. St. Law, art 115. As to escheat of land held by an alien on office found, see ante, p. 388. T See ante, p. 30. § 253) GRANT FROM THE STATE. 401 private persons and corporations, and will be treated of in that connection.' Transfer from Private Persons. And for the same reason acquisition of land by the state from private persons by any of the modes of conveyance wiiich operate between individuals will not be considered here. The states may convey land to the United States, or vice versa, by ordinary forms of conveyance. ACQUISITION BY PRIVATE PERSONS. 252. Title is acquired by private persons (a) By grant from the state (p. 401). (b) By conveyance from individuals (p. 405). (c) By estoppel (p. 450). (d) By adverse possession (p. 466). (e) By accretion (p. 470). (f) By devise (p. 472). (g) By descent (p. 478). (h) By judicial process (p. 486). GRANT FROM THE STATE. 253. Land owned by the United States and the states is conveyed to individuals by instruments of convey- ance called patents. Titles held by private persons are, of course, originally derived from the state. In construing grants from the state the cases say the presumption is always in favor of the state, thus varying from the usual inile, which is that in conveyances all presumptions are in favor of the grantee and against the grantor.^ It is doubted, however, whether the rule as to the presumption being in favor of the state obtains in cases where the grantee has paid a valuable • Post, p. 494. » Mayor, etc., of Allegheny v. Ohio & P. R. Ck)., 26 Pa. St. 855; Townsend V. Brown, 24 N. J. Law, 80; Dubuque & P. B. Co. v. Litchfield, 23 How. 66, 88. REAL PROP. — 26 402 TITLE. (Ch. 16 consideration.^' The rule is never applied unless there Is an actual ambiguity.^^ When an estate on condition is granted by the state, no entry is necessary to revest the title in the state on breach of the condition.^* Public Land System. The lands owned by the United States are surveyed and sold according to the following plan, and states which own public lands follow the plan of the federal government very closely:^' The lands are divided, by lines manning to the cardinal points of the compass, into ranges, townships, and sections; the ranges being numbered east or west from a principal meridian. Each township contains 23,040 acres, being G miles square. The sections contain 040 acres, and are divided in halves, quarters, eighths, etc.^* By this system any portion of land may be located with certainty and accuracy by means of section, township, etc. Descriptions of this kind are sufficient in deeds.^^ The public domain can be sold only by authority of congress. This authority is exercised by either gen- eral or special acts.^* The first sales of the public domain were made in large tracts. But since this congressional survey was adopt- ed the public land has been sold through local land ofiices estab lished in the Western states; the land is first put up at auction to be sold to the highest bidder at not less than a minimum price, and, if not disposed of at that price, it is left to be sold by the land office.^' Certificate amd Patent. One who wishes to acquire public land must make an entry on the land selected, and, after making the required payment, or 10 Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 589; Hyman v. Read, 13 Cal. 444. 11 Martin v. Waddell's Lessee, 16 PeL 367, 411; Com, v. Roxbury, 9 Gray (Mass.) 492; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 589. 12 Kennedy v. McCartney's Heirs, 4 Port. (Ala.) 141, 13 See 1 Dembitz, Laud Tit. 18, 513. 1* Rev. St U. S. 1878, § 2395 et seq. 10 Bowen v. Prout, 52 111. 354. 16 Irvine v. Marshall, 20 How. 558; Bagnell v. Broderlck. 13 Pet 436. IT Rev. St U. S. 187S, § 2357. § 253) GRANT FROM THE STATE. 403 becoming entitled to the land under the provisions of the federal homestead law/* a certificate of entry is issued by the register of the land office, which entitles the claimant to a patent. The patent is the formal conveyance. It is signed by the president of the United States, or by some authorized person for him, and sealed with the seal of the United States. The cases as to the effect ot a certificate of entry and a patent are somewhat confused, and there is in particular some conflict between the decisions of the federal and the state courts. A patent is the highest evidence of title.^^ Between two patents, the first issued is superior, and the second conveys nothing.^" A patent can be assailed only for fraud or mistake, and can be avoided only by the government, or by suit in its name.'^ A patent cannot be attacked in a collateral proceed- ing." Until the patent is issued, the legal title remains in the United States.^" The equitable title, however, is in the holder of the certificate of entry." This equitable title he may sell or devise, and it descends to his heirs." His heir, devisee, or assignee may claim the patent by virtue of the certificate.'^ If the claimant dies before the patent is issued, it is issued to his heir or devisee, as the case may be." If it is issued in the name of the holder of the certificate after his death, it takes effect for the benefit of the heirs.^* 18 See ante, p. 126. i» Irvine v. Tarbat, 105 Cal. 237, 88 Pac. 896; Bagnell v. Broderlck, 13 Pet. 436. And see Maxey v. O'Connor, 23 Tex. 238. 2 Stockton V. Williams, 1 Doug. (Mich.) 546, 560. 21 Carter v. Thompson, 65 Fed. 329; San Pedro & Canon del Agua Co. v. U. S., 146 U. S. 120, 13 Sup. Ct. 94; U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. 836; U. S. v. Iron Silver Min. Co., 128 U. S. 673. 9 Sup. Ct. 195. But see Tameling v. Enimigration Co., 93 U. S. 644. 2 2 Knight V. Land Ass'n, 142 U. S. 161, 12 Sup. Ct 258. But see Miuter V. Crommelin, 18 How. 87. 2 3 u. S. V. Steenerson, 1 C. C. A. 552, 50 Fed. 504. 2 4 American Mortg. Co. v. Hopper, 56 Fed. 67. 2 5 Brill V. Stiles, 35 111. 305. 2 Brush V. Ware, 15 Pet. 93; Forsythe v. Ballance, 6 McLean, 562, Fed. Cas. No. 4,951. 2T Gait V. Galloway, 4 Pet. 332; Reeder v. Barr, 4 Ohio, 458; Shanks v. Lucas. 4 Blackf. (Ind.) 476. 2 8 Schedda v. Sawyer, 4 McLean, 181, Fed. Cas. No. 12,443; Stubblefield v. 404 TITLE. (Ch. 16 I^e-Emption. Under the pre-emption laws, which are enacted for the purpose of encouraging actual settlement of the public lands, a right is ac- quired by entry and settlement to claim a certificate of entry at the minimum price fixed for the land in preference to any other person. The right can be claimed only for 160 acres,^® and this must not be lands which have been reserved, or which are within any city or town. Nor can lands on which there are known salt or other mines or lands which are occupied for the purpose of trade or manu- facture be pre-empted.'"* One claiming the pre-emption right must not own more than 320 acres in any state or territory, and must not have abandoned, in order to make the pre-emption, a home within the state or territory wherein the pre-empted land lies.^^ The right of pre-emption is assignable only against the assignor,'* and not against the government.'* Nor is it subject to le^^ for the debts of the pre-emptor.'* The pre-emption laws were repealed by the act of March 3, 1891,'* and therefore land can no longer be acquired in this way." Bogss, 2 Ohio St. 216; Phillips v. Sherman, 36 Ala. 189. But see Gait v. Galloway, 4 Pet. 332; Galloway v. Findley, 12 Pet. 264; Blankenpickler r. Anderson's Heirs, 16 Grat. (Va.) 59. 2 9 Rev. St. U. S. § 2259. 80 Rev. St. U. S. § 2258. 81 Rev. St U. S. § 2260. And see Bogan v. Mortgage Co., 11 0. C. A. 128, 63 Fed. 192. 8 2 Delaunay v. Burnett, 9 111. 454; Camp v. Smith, 2 Minn, 155 (Gil. 131). The pre-emptor's rights descend to his heirs. Bemler v. Bernler, 147 U. S. 243, 13 Sup. Ct. 244. 8 3 Rev. St. U. S. § 2263. 8 4 Rogers V. Rawlings, 8 Port (Ala.) 320. 8 5 26 Stat 1097. 8« See 1 Dembitz, Land 'Ht 524. I 255) COMMON-LAW CONVKYANCKa. 40^ CONVEYANCES. 254. The instruments by which title is conveyed are of four kinds: (a) Common-law conveyances (p. 405). (b) Conveyances operating under the statute of uses (p. 409). (c) Modern statutory conveyances (p. 411). (d) Conveyances of registered titles (p. 412). SA.ME— COMMON-LAW CONVEYANCES. 255. The common-law conveyances are divided into (a) Primary, which include (1) Feoffment (p. 405). (2) Gift (p. 406). (3) Grant (p. 407). (4) Lease (p. 407). (5) Exchange (p. 407). (6) Partition (p. 408). (h) Secondary, w^hich include (1) Release (p. 408). (2) Confirmation (p. 408). (3) Surrender (p. 408). (4) Assignment (p. 409). (5) Defeasance (p. 409). Primary and Seconda/ry Conveyances, By primary conveyances are meant those which are original, and create estates in land. Secondary conveyances are those which enlarge, restrain, extinguish, or transfer estates already existing."' These distinctions are not now much used. Feoffinent. Feoffments, though little used in modern times, were at common law, in early times, almost the only form of conveyance used for «' 2 Bl. Coram. 310, 324. 406 TITLE. (Ch. 16 the transfer of estates in possession. Feoffment signifies the granting of a feud, and the word "feoffment" was used at common law as meaning the conveyance of a fee simple. Feoffment as a conveyance consists of a symbolical delivery of the land by the grantor or feoffor, as he was called, to the grantee or feoffee. This was done by the persons going upon the land, and the feoffor giving to the feoffee a twig or turf taken from the land, at the same time using words which showed that he intended to transfer the land to him. This ceremony was called livery of seisin.'^ There was a distinction made between seisin in deed and seisin in law. The former was when the livery of seisin took place on the land itself; the latter when the parties were not actually on the land, — as when the transfer was made in sight of the premises, but with- out an actual entry on them." In later times livery of seisin was usually accompanied by a written deed, especially when the limita- tions of the estate granted were numerous. But this deed was only evidence of title, and not a conveyance itself.*" As has already been said, a feoffment might have a tortious operation, as when a person attempted to convey by feoffment a greater estate than he himself possessed- The effect of such a feoffment was to destroy the estate which the feoffor did possess, and entitle the remainder-man to enter at once. The tortious operation of these conveyances is now abolished in the United States.** "Gift" was the term applied to a conveyance creating an estate in fee tail. The only difference between a gift and a feoffment •was that the former, while accompanied by the same ceremony ;as a feoffment, had limitations to the heirs of the body of the first donee; that is, an estate tail was created.*" 8 8 See 2 Bl. Comm. 310, 313; Terry v. Price, 1 Mo. 553; Bryan y. Bradley, 16 Com. 474. «9 Digby, Hist. Real Prop. (4th Ed.) 145. 4 French v. French, 3 N. H. 234; Smith v. Lawrence, 12 Mich. 431. Livery might be made by the delivery of the deed. Thoroughgood's Case, 9 Colie, 136a. *i See ante, p. 59. ♦2 2 Bl. Comm. 816; Plerson t. Armstrong, 1 Iowa, 282, 202. § 255) COMMON-LAW CONVEYANCES. 407 Gra/nt. "Grant" was the name of the conveyances which were proper for the transfer of incorporeal interests in land,*^ which were said "to lie in grant," and not "in livery," the latter being the term used to designate convej-ances of corporeal interests by feoffment The term "grant" is now used to designate all kinds of conveyances.** A grant did not have any tortious operation. Lease. A lease is the instrument used to create estates less than free- hold, and usually contains a reservation of rent. At common law, however, the term was applied to conveyances of particular estates as for life as well as estates in fee simple in which a rent was reserved.*' By the early common law no writing was necessary for a lease, though an entry was.*® Now, however, by the statute of frauds, there must be a writing when the lease is for more than a short period, which differs in the various states.*^ Leases have already been considered more fully in treating of estates less than freehold.*' Exchange. An exchange is a "mutual grant of equal interests," the transfer of one estate being the consideration for the transfer of the other. Exchange applies to transfers of estates in expectancy as well as of those in possession.*® But estates which are exchanged must be of the same kind, as a fee simple for a fee simple, and not a fee simple for a life estate. The estates, however, need not be of the same value. "^ To make an exchange effectual, there must be an entry, though no livery of seisin is necessary. If the estates are not in possession, a deed is required, and in the deed the word *8 2 Bl. Comm. 317; Huff v. McCauley, 53 Pa. St 206; Drake v. Wells, 11 Allen (Mass.) 141. As to a reversion, see Doe v. Cole, 7 Bam. & C. 243. ** Ross v. Adams, 28 N. J. Law, 160; Peck v. Walton, 26 Vt. 85. *B 2 Bl. Comm. 317. *« Williams v. Downing, 18 Pa. St. 60. *7 1 stim. Am. St Law, § 4143. »8 Ante, p. 128. 4» 2 Bl. Comm. 323. And see Long v. Fuller, 21 Wis. 123. 8 Wilcox V. Randall, 7 Barb. (N. Y.) 633. 40^ TITLE. (Ch. 16 "escambium" had to be used at common law, and no equivalent ex- pression was sufficient" Partition, Partition has already been treated of as the method of dividing joint estates so that the owners would hold in severalty,"- and Deeds no further consideration here. Release. We now come to the secondary conveyances, the first of which is release. A release technically is the conveyance of a future estate to one having an estate in possession, though, if the grantee has a constiTictive possession, it is suificient. For a release no liv- ery of seisin is necessary, but the future estate must be an imme- diate one; that is, with no intervening estate between the one in possession and the estate which is released." A release is like our modern quitclaim deed, except that in the quitclaim possession in the grantee is not necessary." And, further, in the release, privity of estate between the parties was required." The usual words in the release are "demise, release, and forever quitclaim." Confirmation, A confirmation is a conveyance used to make good a former voidable conveyance." It cannot be used if the conveyance which it is attempted to validate was originally void," though such an instrument would now by many courts be made operative as some other form of conveyance; for instance, as a bargain and sale." The operative words used in a confii-mation are "given, granted, ratified, approved, and confirmed." Surrender, A surrender is the converse of a release,— that Is, it Is a con- veyance by one in possession of a present vested estate of his in- Bi 2 Bl. Comm. 823. 8 2 Ante, p. 344. 63 2 Bl. Comm. 324. B* Doe V. Reed, 5 111. 117; Kerr v. Freeman, 33 Miss. 29a 6s Smith's Heirs v. Bank, 21 Ala. 125. 6 8 Adlum V. Yard, 1 Rawle (Pa.) 171, 177; Ing v. Brown, 3 Md. CTh. 521; English V. Young, 10 B. Mon. (Ky.) 14L 6T Branham v. Mayor, etc., 24 Cal. 585; Barr v. Schroeder, 32 Cal. 609. 6 8 Fauntleroy's Heirs v. Dunn, 3 B. Mon. (Ky.) 594. § 256) CONVEYANCES UNDER THE STATUTE OP USES. 409 terest to one entitled to the next estate in the remainder or rever- sion,"' as in a release, privity of estate between the parties is nec- essary, and the surrender can be only to one who holds the next immediate estate.®^ No deed, however, is necessary to the validity of a surrender.®^ The technical words used for a conveyance operat- ing as a surrender are "surrendered, granted, and yielded up.** Quitclaim deeds are now used in place of surrenders. Assignment. An assignment is, as we already know, the term applied to a conveyance of a leasehold which is already in existence.^'' So, too, there may be an assignment of a mortgage.*' Defeasance. A defeasance has been treated of in connection with mortgages, it being a condition, either in the mortgage or in the separate in strument, which makes the mortgage void on the performance of the condition.®* SAME— CONVEYANCES UNDER THE STATUTE OF USES. 256. The conveyances operating under the statute of uses are (a) Covenant to stand seised (p. 410). (b) Bargain and sale (p. 410). (c) Lease and release (p. 411). «9 Martin v. Stearns, 52 Iowa, 345, 3 N. W. 92; Scott's Ex'r T. Scott, 18 Grat (Va.) 159. 60 2 Bl. Conim. 326. «i Milling V. Becker, 96 Pa. St. 182; Whitley v. Gough, Dyer, 140b; Thomaa V. Cook, 2 Bam. & Aid. 119; Nickells v. Atherstone, 10 Q. B. 944. Cf. Dodd V. Acklom, 6 Mon. & G. 672; Pheng r. Popplewell, 12 C. B. (N. S.) 334. But see Aner v. Penn, 99 Pa. St. 370; Magennis v. MacCullogh, Gilb. Cli. 235; Roe V. Archbishop of York, 6 East, 86. And see Hamerton v. Stead, 3 Barn. & C. 478. A surrender may be implied by the acceptance of another lease, Ive V. Sams, Oro. Eliz. 521; Lyon v. Reed, 13 Mees. & W. 285; but not if the second lease is void, Davison v. Stanley, 4 Burrows, 2210; Doe v. Courte- nay, 11 Q. B. 702; Doe v. Poole, 11 Q. B. 713. And see SchiefCelin y. Carpenter, 15 Wend. (N. Y.) 400; Coe v. Hobby, 72 N, Y. 141. «2 See ante, p. 147. «3 See ante, p. 205. And see Cowles v. Ricketts, 1 Iowa, 582. «* See ante, p. 183, and 2 Bl. Comm. 327. 410 TITLE. (Ch. 16 In treating of equitable estates it was seen that the statute of uses made it possible to convey lands by instruments which would have no effect at common law.*" Three conveyances oper- ating under this statute came into general use. They were cove- nants to stand seised, bargain and sale, and leaSe and release. These conveyances are used to create legal estates. The convey- ance itself transfers an equitable estate, — that is, a use, — and the statute executes the legal estate in the cestui que use, by trans- ferring the seisin to him."® dovenant to Stand Seised. A covenant to stand seised is a conveyance operating under the statute of uses, in which the consideration is either blood or mar- riage; that is, only a good consideration is required.®^ In Massa- chusetts no consideration whatever is required for the validity of a covenant to stand seised.*^ This form of conveyance is prac- tically obsolete in the United States, though the courts, in order to give effect to the intention of the parties, will sometimes construe a conveyance to be a covenant to stand seised.®' From the nature of the consideration it could be used only to convey land to a husband or wife, children, or other kinsmen. Bargain and Sale. The conveyance called a bargain and sale was the same as a covenant to stand seised, except that a valuable consideration was required for its validity.^" Many of the cases hold that a recital in the deed of the consideration is sufficient evidence of its having been received, and the requirement for a valuable consideration has become a mere form.^^ The operation of a deed of bai'gain and «B Ante, p. 254. 68 2 Bl. Comm. 327; Chenery v. Stevens, 97 Mass. 77. «T Jackson v. Sebring, 16 Johns. (N. Y.) 515; Jackson v. Delancey, 4 Cow. {N. Y.) 427; Bell v. Scammon, 15 N. H. 381. 6 8 Trafton v, HaWes, 102 Mass. 533. 89 Eckman v. Eckman, 68 Ta. St. 460; Fisher v, Strickler, 10 Pa. St. 348; Jackson v. McKenny, 3 Wend. (N. Y.) 233; Jackson v. Swart, 20 Johns. (N. Y.) 85; Wallis v. Wallis, 4 Mass. 135. TO Wood V. Chapin, 13 N. Y. 509; Jackson v. Alexander, 8 Johns. (N. Y.) 484; Wood V. Beach, 7 Vt. 522; Bnsey v. Reese, 38 Md. 264. Ti Fetrow v. Merriwether, 53 111. 278; Jackson v. Fish, 10 Johns. (N. Y.) § 257) MODERN STATUTOKY CONVEYANCES. 411 sale is as follows: The convejance which is in the form of a con- tract to sell raises a use in the feoffee which the statute of uses executes, and thereby conveys the legal estate to the bargainee.^' In order to give notoriety to conveyances by bargain and sale, which became the usual form for transfer of lands, the statute of enrollments provides that such deeds must be enrolled within six months after their execution, or be of no validity.'^' Lease a/nd Release. To evade the requirements of the statute of enrollments the expedient called a lease and a release was devised, and soon became the most usual form for a conveyance for lands. Its operation was as follows. A lease, usually for one year, was given to the intended grantee. This was not required to be enrolled, because the statute did not make any provision for chattel interests. By a release dated the next day after the lease the reversion of the estate was conveyed to the lessee, who in this way acquired the full interest in the land without the use of any conveyance which had to be enrolled.^* SAME— MODERN STATUTORY CONVEYANCES. 257. Statutes in many states provide short forms of con- veyances, ■which are either (a) Warranty deeds, or (b) Quitclaim deeds. In a number of states short forms have been prescribed by the statutes, which are declared sufficient to convey various estates in land.'" Except where superseded by these statutory conveyances, con- veyances operating under the statute of uses may still be employed. The common-law conveyances are, however, still sufficient to transfer lands, though their use is unusual,^ ^ with the exception that feoff- 456; Jackson v. Dillon's Lessee, 2 Overt. (Tenu.) 2G1. But see Perry v. Price, 1 Mo. 553. T2 Chenery v. Stevens, 97 Mass. 77, T8 27 Hen. VIII. c. 16. T4 2 Bl. Coram. 339; I^wis' Lessee v. Beall, 4 Har. & McH. (Md.) 488. TBI Stlm, Am. St. Law, art. 148. T« Funk V. Creswell, 5 Iowa, 68; Brewer v. Hardy, 22 Pick. (Mass.) 376; Rogers v. Fire Co., 9 Wend. (N. Y.) 611. 412 TITLE. (Ch. 16 ments have been abolished in some states.'^ Where statutory forms have been provided, their exclusive use is not required. Many of the deeds now in use have a dual character from the operative words used, which frequently are "give, grant, bargain, and sell." When such words are used, courts will construe them in the way most fitted to give effect to the intention of the parties,^® but they will be held to convey legal, rather than equitable, estates, when such construction is possible."'" Warrant?/ and Quitclaim Deeds. Our most usual form of modern conveyance is called a warranty deed. Its distinguishing characteristic is that it contains, besides the words of conveyance, covenants of warranty, the meaning and effect of which will be explained subsequently.^^ Quitclaim deeds differ from warranty deeds in that they contain no such covenants, and are much like a common-law release, except, as has already been stated, they need not be to one in possession.^^ A quitclaim deed transfers only the title which the grantor has,'" and does not prevent the grantor from setting up a future acquired title.'* SAME— REGISTERED TITLES. 358. Illinois has provided by statute an optional system of title registration, the principal features of which are: (a) Certificates of title are issued to the owner of each estate in registered land for his interest (p. 413). (b) Transfers of title can be made only on the public register (p. 413). TT 1 Stim. Am. St Law, § 1470. T8 Russell V. Coffin, 8 Pick. (Mass.) 143; Trafton v. Hawes, 102 Mass. 533. T» Sprague v. Woods, 4 Watts & S. (Pa.) 194. 8 Post, p. 446. 81 Kyle V. Kavanagb, 103 Mass. 356; Rowe v. Beckett, 30 Ind. 154. 8 2 Gage V. Sanborn (Mich.) 64 N. W. 32; Mclnemey v. Beck, 10 Wash. 515, 89 Pac. 130. 88 Frost V. Society, 56 Mich. 62, 22 N. W. 189; City and County of San Francisco v. Lawton, 18 Cal. 465. But see Welch v. Button, 79 III. 465; Green Bay & M. Canal Co. v. Hewitt, 55 Wis. 90, 12 N. W. 382. § 258) REGISTERED TITLES. 413 (c) Acquisition of title by adverse possession is abol- ished as to registered land (p. 414). (d) An indemnity fund is provided to reimburse any persons who may be injured by the operation of the act (p. 414). By an act approved June 13, 1895,^* the legislature of Illinois Inaugurated a system of registration of titles following in its main lines the German Grundbuch and the Australian system of registry of titles, or the so-called Torrens title system.* The act does not become operative in any county until adopted by the voters of the county." After the act has been adopted by a county, the regis- tration of the title of any owner is optional with him.«« Certificates of Title. When a tract of land is registered, a certificate of title is made out and kept in the office of the registrar, and a duplicate given the owner. Each estate in the land is represented by a separate cer- tificate, on which are indorsed "the particulars of all estates, mort- gages, incumbrances, liens, and charges to which the owner's title is subject." *^ Joint owners may each take separate certificates for their individual interests, or may have all the interests embraced in a single certificate.^* Same — Mortgages^ Leases^ and Other Charges. Mortgages and other incumbrances, contracts to sell, and leases for not more than 10 years, are not represented by separate certifi- cates, but the instrument creating the mortgage, etc., is filed in the registrar's office, and a duplicate retained by the mortgagee or les- see, a "memorial" of the incumbrance being entered on the certifi- cate.®* Transfers of Registered Land. After land has been registered, any of the ordinary forms of con- veyance purporting to transfer the title operate only as contracts to convey, and as authority to the registrar to transfer the title.*'* The transfer itself is effected by the surrender of the duplicate * Since the text was written a similar act has been passed in Ohio. 35 Wkly. Law Bui. Append. «* Laws 111. 1895, p. 107, «» Laws 111. 1895, § 22. 85 Laws 111. 1895, § 94. «» Laws 111. 1895, §§ 48-55. 88 Laws lU. 1895, § 7. •<> Laws 111. 1895, § 45. 8 7 Laws 111. 1895, § 20. 414 TITLE. (Ch. 16 certificate of title and the issuing of a new certificate to tlie trans- feree."^ If only part of the owner's interest is transferred, another certificate is issued to him for the interest remaining in him."^ Transfers by descent, devise, or by judicial process are made by the registrar in accordance with the orders and decrees of the court.®' JVo Title hy Aobverse Possession. Section 30 of the act provides: "After land has been registered, no title thereto, adverse or in derogation to the title of the regis- tered owner, snail be acquired by any length of possession merely."^ Indemnity Fund. When land is first registered, one-tenth of one per cent, of its value must be paid to the registrar, to provide an indemnity fund, out of which the county is to reimburse any person sustaining "damage through any omission, mistake, or misfeasance of the registrar." •* SAME— REQUISITES OP DEEDS. 259. For a valid deed or other conveyance of land the follo^wing are requisites: (a) Property to be conveyed (p. 415). (b) Words of conveyance (p. 416). (c) A description of the property (p. 419). (d) A writing, executed by signing, and in some states by sealing (p. 426). (e) Delivery and acceptance (p. 433). (f) Acknowledgment, in some states (p. 436). (g) Witnesses, in some states (p. 439). (h) Registry, in some states (p. 439). 260. Acknowledgment, witnesses, and registry are not, in some states, essential to the validity of a deed, but are necessary to give priority. By the early common law, feoffments were sufficient to convey title by the mere transfer of possession, but now a writing is required by the statute of frauds for the transfer of any estate, »i Laws lU. 1895, § 39. •« Laws lU. 1895, §§ 59-82. »2 Laws 111, 1895, § 40. •* Laws 111. 1895, §§ 90-93. §261) REQUISITES OF DEEDS. . 416 except, as already seen,^* tenancies for short terms. Conveyances in writing are called deeds. The definition of a deed in real prop- erty law is, "a sealed writing conveying real estate." But in those states where seals have been abolished, written instruments which convey real estate are still termed deeds. And hereafter the term deed must be taken to mean, unless otherwise specified, a written instrument conveying the title to lands with or without a seal, according to the local laws. Deeds, however, are to be distin- guished from mere agreements to convey lands, which belong to the law of contracts.^' Instruments of conveyance, such as mort- gages and leases, are properly included under the term "deed." 261. PROPERTY TO BE CON^VTEYED— For a valid deed there must be some real property to be conveyed. In order that a deed may operate, there must be something to be conveyed. What can be conveyed by deed will be seen by referring to the discussion of what is real property, given in our first chap- ter; and the converse is also true, — that anything which is real property can only be conveyed by deed.'*" On the other hand, at common law it was held that a mere possibility of having an estate in land at a future time could not be conveyed,^^ but this rule has been somewhat relaxed. For instance, an heir has been permitted to make.a deed of lands which he expected to inherit, and when the title came to him by descent his grantee was given the benefit there- of.** But the contrary has also been held.^*'** «B Ante, p. 132. 9 6 See Clark, Cont. 103. 9TA deed is necessary for the conveyance of an Incorporeal hereditament. Duke of Somerset v. Fogwell, 5 Barn. & C. 875; Bird v. Higginson, 2 Adol. & E. 696; Tottel v. Howell, Noy, 54. And see ante, p. 35L A parol license to a tenant from year to year to quit in the middle of a quarter is bad. MoUett V. Brayne, 2 Camp. 103. A written instrument is, of course, neces- sary for the conveyance of a freehold interest in lands. Jackson v. Wood, 12 Johns. (N. Y.) 73. But see Neale v. Neale, 9 Wall. 1; Syler v. Eckhart, 1 Bin. (Pa.) 378. 9 8 Dart V. Dait, 7 Conn. 255. 99 Trull V. Eastman, 3 Mete. (Mass.) 121; Stover v. Eycleshimer, 46 Barb. (N. Y.) 84. 100 Davis V. Hayden, 9 Mass. 519. The conveyance of an expectancy can- 416 TITLE. (Ch. 16 262. WORDS OF CONVEYANCE— A valid deed must con- tain sufficient words of conveyance to transfer an estate in the land from the grantor to the grantee. This will be treated under the following heads: (a) Names of parties (p. 416). (b) Granting clause (p. 417). (c) Exceptions (p. 417). (d) Reservations (p. 418). (e) Habendum (p. 418). Names of Parties. The name of the grantor should be stated In the deed, though some cases hold that the mere signing of the grantor's name is suf- ficient.^"^ If the grantor's name is mentioned in the deed, his sign- ing the deed by a wrong name will not invalidate it^°^ The grantee in a deed must be made certain, and therefore it is generally neces- sary to name him, though a description of the person will be suf- ficient if it clearly designates who is to take; as, for instance, where the grantee is named by his ofQce.^'^' A deed of land to a "neigh- borhood" is not sufficiently certain.^ °* The grantee may, however, be designated by an assumed name, though a deed to a fictitious not be given effeet as an executory contract to convey unless there Is a suffi- cient consideration. Bayler v. Com., 40 Pa. St. 37. And cf. Gardner v. Pace (Ky.) 11 S. W. 779. loiBurge V. Smith, 27 N. H. 832; Elliott v. Sleeper, 2 N. H. 525; CatliB V. Ware, 9 Mass. 218; Lord Say & Seal's Case, 10 Mod. 40. And see Mardes V. Meyers, 8 Tex. Civ. App. 542, 28 S. W. G93. A deed signed, "A. B., Exec- utor," shows sufficiently that it is made in a representative capacity. Babcock V. Collins, 60 Minn. 73, 61 N. W. 1020. But see Agricultural Bank of Missis- sippi V. Rice, 4 How. 225; Peabody v. Hewett, 52 Me. 33; Harrison v. Simons, 55 Ala. 510; Adams v. Medsker, 25 W. Va. 127. When a husband <^onveys his life estate in his wife's lands, the fee will not pass by the wife signing the deed. Flagg v. Bean, 25 N. H. 49, 62, 63. 102 Middleton v. Findla, 25 Cal. 76. But cf. Boothroyd v. Engles, 23 Mich. 19. 10 3 Lawrence v. Fletcher, 8 Mete. (Mass.) 153. And see American Emigrant Co. V. Clark, 62 Iowa, 182, 17 N. W. 483. 104 Thomas v. Inhabitants of Marshfield, 10 Pick. (Mass.) 364. A deed to *'A. B. Deceased Estate" is void for want of a grantee. Mclnemey v. Beck, 10 Wash. 515, 39 Pac. 130. § 262) REQUISITES OF DEEDS. 417 person will not be good.^°* A mistake in the name of a corpora- tion which is to take as grantee will not make the conveyance void if the intended grantee can be ascertained.^ "• And where the grantee is uncertain, evidence is admissible to show which of several persons was intended to take,^°^ and parties to the deed are suf- ficiently designated by their first and last names without the use of a middle name; ^°* and so the addition of the word "junior" and "senior" are not necessaiy.^**^ It is usual to make some "addition"' to the names of the parties in the deed, as by giving the residence. And in the case of a married woman the name of her husband is frequently added. Granting Cla/ase. In order that any deed may be operative, it must contain words of conveyance sufficient to transfer an estate from the grantor to the grantee.^^" The technical words which are used in connection with the various forms of conveyances have already been men- tioned,^ ^^ and these words, or some equivalent of them, must be used. Therefore a deed which contains no other words of convey- ance than "sign over" wUl not pass a title.^^* Exceptions. An exception is something reserved from the operation of the deed; that is, it is something which would otherwise pass by the description of the lands to be conveyed.^^' For a valid exception, 10 B Thomas v. Wyatt, 81 Mo. 188. 106 Ashville Division No. 15 v. Aston, 92 N. C. 578. 107 Webb V. Den, 17 How. 579; Aultman & Taylor Manuf'g Co. v. Richard- son, 7 Neb. 1. 10 8 Games v. Stiles, 14 Pet. 322; Dunn v. Games, 1 McLean, 321, Fed. Gas. No. 4,176; Erskine v. Davis, 25 111. 251; Franklin v. Talmadge, 5 Johns. (N. Y.) 84. A middle initial may be important when used. See Ambs v. Rail- way Co., 44 Minn. 2G6, 4G N. W. 321. 109 Kincaid v. Howe, 10 Mass. 203; Cobb v. Lucas, 15 Pick. (Mass.) 7. 110 Hummelman v. Mounts, 87 Ind. 178; Webb v. Mullins, 78 Ala. 111. 111 Ante, pp. 36, 47, 56. 112 McKinney v. Settles, 31 Mo. 541. lis Craig v. Wells, 11 N. Y. 315; Thompson v. Gregory, 4 Johns. (N. Y.) 81; Whitaker v. Brown, 46 Pa, St. 197; Ashcroft v. Railroad Co., 126 Mass. 197; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Wiley v. Sirdorus, 41 Iowa, 224; Sloan v. Furniture Co., 29 Ohio St. 568. REAL PROP.— 27 418 TITLE. (Ch. 16 the thing excepted must be described with as much particularity as is required in the description of the land conveyed/^* All rights in the land excepted from the operation of the deed remain in the grantor as they were before the conveyance.^ ^"^ Resei'vations. A reservation is a right created out of the land granted, such as the reservation of a rent. The word "reservation," however, need not be used if the intention is otherwise clear.^^* An exception, so called, in the deed, will be construed to be a reservation if such was the intention of the parties; and a reservation will be held an ex- ception if that was the purpose.^*^ A reservation can be made only in favor of the grantor; not for a stranger.^ ^* In creating a res- ervation the same words of limitation are necessary as in the crea- tion of an estate.^^® Reservations are used generally for the cre- ation of rents,^^° but may be for other purposes, such as an ease- ment reserved to the grantor out of the land granted.^'* A reserva- tion is the same as a reddendum. Habendum. The habendum of a deed is merely formal, and is that part of the conveyance which commences with the words "to have and to hold." 11* Thompson v. Gregory, 4 Johns. (N. Y.) 81; Thayer v. Torrey, 37 N. J. Law, 339. But see Wells v. Dillard, 93 Ga. 682, 20 S. E. 263. No words of limitation are necessary. Winthrop v. Fairbanks, 41 Me. 307. Cf. Achom v. Jackson, 8G Me. 215, 29 Atl. 989. 116 Munn V. Worrall, 53 N. Y. 44; Whitalier v. Brown, 46 Pa. St 197. lie Hornbeck v. Westbrook, 9 Johns. (N. Y.) 73; Rich v. Zeilsdorff, 22 Wis. 544; Barnes v. Burl, 38 Conn. 541. 11 T Winthrop v. Fairbanks, 41 Me. 307. 118 Illinois Cent R. Co. v. Indiana & I. C. R. Co., 85 111. 211; Hornbeck v. Westbrook, 9 Johns. (N. Y.) 74. But see West Point Iron Co. v. Raymert, 45 N. Y. 703. A reservation to the grantor and a stranger to the deed for the lives of both has b-aen upheld. Martin v. Cook, 102 Mich. 267, 60 N. W. 679. 119 Ashcroft v. Railroad Co., 12G Mass. 198. But see Dennis v. Wilson, 107 Mass. 591. 120 See ante, p. 376. 121 Pettee v. Hawes, 13 Pick Olass.) 323; Hurd v. Curtis, 7 Mete, (ilass.) 91; Choate v. Bumham, 7 Pick. (Mass.) 274; Bates v. Swiger (W. Va.) 21 S. E. 874; Lacy v. Comstock, 55 Kan. 86, 39 Pac. 1024. When a right of way is reserved, the fee in the whole laud passes subject to the easement. Moffitt V. Lytle, 165 Pa. St 173, 30 Atl. 922. §§ 263-264) REQUISITES OF DEEDS. 419 The object of the habendum is to designate what estate is to pass, and contains the words of limitation.^" If the habendum is repug- nant to the granting clause, the habendum is void.^" Nor can the habendum be made to include lands which are not in the descrip- tion.^-* The habendum usually repeats the names of the grantees, and one may be named in the habendum who is not in the granting clause; for instance, a remainder-man.^ ^ 5 /jj^^ habendum may en- large the estate given in the granting clause,^ ^^ or restrict it^^^ The habendum will not be permitted to change the nature of the ownership, as by making owners in severalty joint owners.^" The uses and trusts accompanying an estate are usually limited in the habendum. 263. DESCRIPTION OF THE PROPERTY— A valid dead must contain a sufficient description of the prop- erty to be conveyed to identify it. This may be by reference to (a) Plats and maps (p. 421). (b) Monuments (p. 422). (c) Courses and distances (p. 424). (d) Quantity (p. 425). 264. All things which are appurtenant to the property described pass with it (p. 425). 122 Wager y. Wager, 1 Serg. & R. (Pa.) 374; Mitchell v. Wilson, 8 Cranch, C. C. 242, Fed. Cas. No. 9,672. 123 Major V. Buliley, 51 Mo. 227; Ratcliffe v. Marrs, 87 Ky. 26, 7 S. W. 395, and 8 S. W. 876; Flagg v. Eames, 40 Vt. 16; Budd v. Brooke, 3 Gill (Md.) 198. 124 Manning v. Smith, 6 Conn. 289. 126 Riggin V. Love, 72 111. 553; Tyler v. Moore, 42 Pa, St. 374; Irwin's Ileirs V. Longworth, 20 Ohio, 581. 126 Moss V. Sheldon, 8 Watts & S. (Pa.) 160; Jackson v. Ireland. 3 Wend. (N. Y.) 99. 127 Watters v. Bredin, 70 Pa. St. 237; Whitby v. Duffy, 135 Pa. St. 620, 19 Atl. 1005. As where, by the granting clause, a fee simple absolute would pass, the habendum may show an intention to convey a less estate. Jamaica Pond Aqueduct v. Chandler, 9 Allen (Mass.) 159, 168; Riggin v. Love, 72 lU. 553; Montgomery v. Sturdivant, 41 Cal. 290. 128 Greenwood v. Tyler, Hob, 314. In ascertaining the intention of the 420 TITLE. (Ch. 16 The object of the description in a deed is to identify the land to be conveyed, and no conveyance can be operative without a descrip- tion which is suflBcient for such purpose of identification.^^" The description, however, need not be technically accurate, or even clear. It will be sufficient if a surveyor can locate the land by the description given, and therefore a mere error will be disregard- ed. '»» Where there are material errors in a description, which are so gross that the deed cannot take effect, the instrument may be re- formed in equity.^31 Latent ambiguities in the description may al- ways be explained by parol. i" Where such ambiguities exist, or the description is conflicting, the question for the courts is one of construction. To give effect to the deed, the situation of the par- ties at the time of its execution is to be considered, and their inten- tion at that time is the test.^s" For the purpose of showing such intentions, contemporaneous writings by the parties may be used.^^* Where the terms of the description are clear, however, no question of construction arises, and the intention of the parties will not be allowed to control, though it is shown to be different from that ex- pressed in the deed.^^^ In construing a deed, grammatical con- struction and punctuation are given little effect, though they may be of value, in connection with other things."' All parts of the deed are to be construed together, and that description will be adopted which will give effect to the deed, rather than one which parties, "the entire instrument, tlie liabendum as well as the premises, is to be considered." Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049. 128 George v. Bates, 90 Va. 839, 20 S. B. 828; Wilson v. Johnson (Ind. Sup.> 38 N. E. 38; Campbell v. Johnson, 44 Mo. 247; Wofford v. McKinna, 23 Tex. 44; Dwyre v. Speer, 8 Tex. Civ. App. 88, 27 S. W. 585. 130 Mason v. White, 11 Barb. (N. Y.) 173; Bosworth v. Sturtevant, 2 Cush. (Mass.) 392; Hoban v. Cable, 102 Mich. 20(>, 60 N. W. 4G6; Eggleston v. Brad- ford, 10 Ohio, 312; Travellers Ins. Co. v. Yount, 98 Ind. 454; Wells v. Hcd- denberg CTex. Civ. App.) 30 S. W. 702; Gress Lumber Co. v. Goody, 94 Ga. 519, 21 S. E. 217; Denver, M. & A. Ry. Co. v. Lockwood, 54 Kan. 580,' 38 Pac 794. 181 See Canedy v. Marcy, 13 Gray (Mass.) 373. 132 Bybee v. Hageman, GG 111. 519; Clark v. Powers, 45 lU. 283. 133 Long V. Wagoner, 47 Mo. 178; Stanley v. Green, 12 CaL 148. 13* Putzel V. Van Brunt, 40 N. Y. Super. Ct. 501. 18 8 Kimball v. Semple. 25 Cal. 449. 13 Martind. Con v. (2d Ed.) § 98. §§ 263-264) REQUISITES OF DEEDS. 421 would make it Toid for uncertainty."^ General expressions in the deed are controlled by more specific ones,"* and surplusage is to be rejected."* All presumptions are taken most strongly against the grantor,^*" and where the deed contains two conflicting descrip- tions the grantee will, on this principle, be permitted to elect under which he will hold.^** PlaU and Maps. The principal means employed to describe land in conveyances are reference to maps and plats, description by means of monu- ments, or courses and distances, and description by the amount of land to be conveyed. Where land is described by means of refer- ence to a map or a plat, the map or plat referred to becomes a part of the deed for the purpose of that conveyance, and anything which appears thereon may affect the terms of the grant;"' as, where land is conveyed by means of reference to a plat which shows streets as in existence at certain places, the grantor may be estopped by such fact, and the grantee w^ould have a right to have a street as located on the plat"' So, also, if the land is described by a mere reference to another deed in which the land is conveyed, the effect is the same as when the reference is to the map.^** When maps or deeds are refen-ed to for purposes of description, they may be identi- fied by parol evidence."" The loss of the map or deed would not make the conveyance in which they are referred to void, but the 187 Anderson v. Baughman, 7 Mich. 69; City of Alton v. Illinois Transp. Co., 12 111. 38; Gano v. Aldridge, 27 Ind. 294. 138 Hannibal & St. J. R. Co. v. Green, 68 Mo. 169; Wade v. Deray, 50 Cal. 876. 13 9 Jackson v. Clark, 7 Johns. (N. Y.) 223; Kruse v. Wilson, 79 111. 235. 1*0 Charles River Bridge v. Warren Bridge, 11 Pet 420, 589; Cocheco Manuf g Co. v. Whlttier, 10 N. H. 305. 1*1 Armstrong v. Mudd, 10 B. Mon. (Ky.) 144. 1*2 Dolde V. Vodicka, 49 Mo. 100; Masterson v. Munro, 105 Cal. 431, 38 Pac. 1106. 1*3 See ante, p. 859. 1** Mardis v. Meyers, 8 Tex. Civ. App. 542, 28 S. W. 693; Wuestcott v. Seymour, 22 N. J. Eq. 66; Deacons of Cong. Church In Auburn v. Walker, 124 Mass. 69. But see Lovejoy v. Lovett, Id. 270. Land may be described as bounded by land conveyed In another deed. Probett v. Jenkln^on (Mich.) 63 N. W. 648. 1*6 McCullough v. Wall, 4 Rich. (S. C.) 68; Penry v. Richards, 52 Cal. 49G. 422 TITLE. (Ch. 16 contents of the lost instrument could be established by other evi- dence.*** Monuments. Monuments are permanent landmarks, established for the pur- pose of indicating boundaries.**^ They may be either natural or artificial.*** Examples of natural monuments are trees, rocks, rivers, etc. Artificial monuments are anything which may be treated by the parties as such. In describing lands by means of monuments, the monuments themselves must be identified, and it is not sufiBcient to refer to them as "a certain tree" or "stake." **° Where land is conveyed by descriptions referring to highways or nonnavigable rivers for boundaries, it is taken that the center of the highway or the river is intended.*'" When points on the bank of the river or side of the road are named in describing the land con- veyed, the cases are in conflict as to whether the boundary is in the center or at the side of the. highway or river.*''* An intention may, in any case, be expressed that the grantee shall not take to the center, as where the land is described as bounding on "the side or banks" of the highway or river. In such case the line would not be in the center, but on the edge.*'* Where no such intention is 14 8 New Hampshire Land Co. v. Tilton, 19 Fed. 73. 1*7 Black, Law Diet. "Monuments." 14 8 The monuments may be erected by the parties after the conveyanoe Is executed. Makepeace v. Bancroft, 12 Mass. 469; Lemed v. Morrill, 2 N. H. 197. 149 Drew V. Swift, 46 N. Y. 204; Bagley v. Morrill, 46 Vt. 94. 1 BO Boston V. Richardson, 13 Allen (Mass.) 146; Highways Berrldge v. Ward, 10 C. B. (N. S.) 400; Champlin v. Pendleton, 13 Conn. 23; Paul v. Carver, 26 Pa. St. 223; Fisher v. Smith, 9 Gray (Mass.) 441; Cox v. Freedley, 33 Pa. St. 124; Bissell v. Railroad Co., 23 N. Y. 61; White v. Godfrey, 97 Mass. 472; Dodd v. Witt, 139 Mass. 63, 29 N. E. 475. But see Leigh v. Jack, 5 Exch. Div. 264; Sibley v. Holden, 10 Pick. (Mass.) 249; White's Bank of Buffalo V. Nichols, 64 N. Y. 65; Kings Co. Fire Ins. Co. v. Stevens, 87 N. Y. 287; In re Robbins, 34 Minn. 99, 24 N. W. 356. 151 1 Dembitz, Land Tit. 72. And see Luce v. Carley, 24 Wend. (N. Y.) 451; Sleeper v. Laconla, 60 N. H. 201; Arnold v. Elmore, 16 Wis. 509; Watson V. Peters, 26 Mich. 508. And, as to artificial streams, see Warner v. South- worth, 6 Conn. 471; Agawam Canal Co. v. Edwards, 36 Conn. 476. Cf. Buck V. Squiers, 22 Vt. 484. iB2Halsey v. McCormick, 13 N. Y. 296; Child v. Stair, 4 Hill (N. Y.) 369, §§ 263-264) REQUISITES OP DEEDS. 423 expressed, but the usual case of the boundary line being in the middle of the road or stream exists, the grantee of the land owns to the boundary line in the center, subject to the easement of the highway or stream.^"^' The cases are in great confusion on the question of where the boundary line is when the land conveyed is bounded by a navigable river. Three different rules exist in the different states. In some states the land of the riparian proprietor is bounded by high-water mark,^°* in other states by low-water mark,^^"^ and in still others he owns to the center of the stream/ °' While the body of the Great Lakes is never subjected to riparian ownership, the ponds and smaller lakes from half a mile to three miles in width which are found in the Northwest have caused much difficulty. The same conflict exists as in the case of navigable riv- ers.^°^ In any case, if a natural body of water has been raised by artificial means, the boundary lines continue as before the change.^*' reversing 20 Wend. (N. Y.) 149; Murphy v. Copeland, 58 Iowa, 409, 10 N. W. 786; Dunlap v. Stetson, 4 Mason, 349, Fed. Cas. No. 4,164. See LowoU v. Robinson, 16 Me. 357. 153 Town of Old Town v. Dooley, 81 111. 255; Fisher v. Rochester. 6 L.ius. (N. T-.) 225; West Covington v. Freking, 8 Bush (Ky.) 121. And see ante, pp. 361, 368. 154 Barney v. Keokuk, 94 U. S. 324; McManus v. Cax-michael, 3 Iowa, 1; Wood V. Fowler, 26 Kan. 682; Mayor, etc., of City of Mobile v. Eslava. 16 Pet. 234. 156 Union Depot Street-Railway & Ti-ansfer Co. of Stillwater v. Brunswick, 31 Minn. 297, 17 N. W. 626; People v. Canal Appraisers, 33 N. Y. 461; Monou- gahela Bridge Co. v. Kirk, 46 Pa. St. 112; Wood v. Appal, 63 Pa. St. 210; Lux V. Haggin, 69 Cal. 255, 10 Pac. 674. And see Haudly's Lessee v. Anthony, 5 Wheat. 375; Booth v. Shepherd, 8 Ohio St. 247. 156 Arnold v. Elmore, 16 Wis. 509; Jones v. Pettlbone, 2 Wis. 308; Fuller V. Dauphin, 124 111. 542, 16 N. E. 917; Fletcher v. Boom Co., 51 Midi. 277, 16 N. W. 645; Webber v. Boom Co., 62 Mich. 626, 30 N. W. 469; Morgan v. Readtng, 3 Smedes & M. Oliss.) 366; Gavit's Adm'rs v. Chambers, 3 Ohio, 4!)0. 157 1 Dembitz, Land Tit. 67; Jefferis v. Land Co., 134 U. S. 178, 10 Sup. Ct. 518; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838; Clute v. Fisher, 65 Mich. 48, 31 N. W. 614; Lamprey v. State, 52 :Minn. 181, 53 N. W. 1139; Trustees of Schools v. Schroll, 120 111. 509, 12 N. E. 243; Cortelyou v. Van Brundt, 2 Johns. (N. Y.) 357. 168 Paine v. Woods, 108 Alass. 160. But see Bradley v. Rice, 13 Me. 198. 424 TITLE. (Ch. 16 Courses and Distances. Land is said to be described by courses and distances when an identified starting point is given, and the boundaries are traced from that point as so many rods or feet in a certain direction, etc.^" When such descriptions are given, the lines are always to bo taken as straight lineSj^o" and directions expressed as "north- ward," "eastward," etc., mean due north and due east.^" When monuments aud courses and distances are both given, the monu- ments control, and the distances must be lengthened or shorten- ed,^ «= though the courses and distances will control where such an intention clearly appears in the deed.^" When lands are described according to the congressional survey, and the corners — that is, the monuments— have been lost, the courses and distances, as they ap- pear on the maps and field notes of the surveyor general, will con- trol. But a difficulty arises from the fact that the chains used in making the surveys were often stretched by use, and so more land will be included in the description than would be indicated by the courses and distances. In the federal courts, and in some of the states, it is held, in conformity with the United States statutes,^ «* that the lost corner shall be established by locating it a proportion- ate distance from the nearest known corners. In this way the surplus land is divided among the several owners.^*"* In some states, however, a different rule prevails, and the lost corner is located by measuring the distance which it ought, by an accurate survey, to be from the eastern corner of the township. By this rule the surplus land all goes to the owners on the western side.^°* 189 As to the use of the words "more or less" In giving courses and dis- tances, see Blaney v. Rice, 20 Pick. (Mass.) G2; HoweU v. Merrill, 30 Mich. 283; Williamson v. Hall, G2 Mo. 405. i«o Campbell v. Branch, 4 Jones (N. C.) 313. 161 Jackson v. Reeves, 3 Caines (N. Y.) 295. 1C2 Preston v. Bowmar, Wheat. 580; Bowman v. Farmer, 8 N. H. 402; Knowles v. Toothaker, 58 Me. 172; White v. Williams, 48 N. Y. 344; Miles' V. Barrows, 122 Mass. 579. Cf. Hall v. Eaton, 139 Mass. 217, 29 N. E. 660. 183 niglnbotham v. Stoddard, 72 N. Y. 94; Buffalo, N. Y. & E. R.'co. v. Stigeler, 61 N. Y. 348. Aud see Hall v, Eaton, 139 Mass. 217, 29 N. E. 660. 16* Rev. St. U. S. § 2396. 16 5 Jones v. Kimble, 19 Wis. 429; Moreland v. Page, 2 Iowa, 139. i«6 Major V. Watson, 73 Mo. 665; Vaughn v. Tate, 64 Mo. 491- Knight v Elliott, 57 Mo. 317. f§ 263-264) REQUISITES OF DEEDS. 425 Quantity. When the quantity of land to be conveyed is given in the deed, it will not control either monuments or courses or distances/"'' though it may aid a description otherwise defective, and quantity may be made to control by express words.^*® In the absence of such words, the quantity given in a deed will have no effect unless there is a covenant as to the amount. When the quantity is given, and the words "more or less" are added, no more, is meant than what the law would imply, namely, that the grantee takes the risk as to the amount.^ °® The addition of the words "more or less" will not prevent an action for fraud when there has been a misrepre- sentation as to the amount^^** Appurtenances. The old form of a deed adds, after the description of the lands or tenements conveyed, words like the following: "With all the priv- ileges and appurtenances thereto belonging or in any way apper- taining," or, simply, 'With the appurtenances." It is doubtful whether these general words in any case enlarge the effect of the deeds.^^* The primary meaning of "appurtenances" is the ease- ments and other incorporeal hereditaments enjoyed with the land, such as rights of way, water courses, rights to light and air, etc. But it seems that whatever easements or hereditaments will pass under the general description of "privileges and appurtenances" will pass without them as mere incidents to the land, unless the in- tention to reserve such right, and to detach it from the land, is ap- parent^'^'^ But it is a general principle that "land cannot pass as an appurtenance to land," and it has been said that even the neces- sity of enjoyment cannot make one parcel of land pass as an ap- 167 Mann v. Pearson, 2 Johns. (N. Y.) 37; Pernam r. Wead, 6 Mass. 131; Emery v. Fowler, 38 Me. 99. 16 8 Moran v. Lezotte, 54 Mich. 83, 19 N. W. 757; Davis v. Hess, 103 Mo. 81, 15 S. W. 324. 169 Williamson v. Hall, 62 Mo. 405. 170 McConn v. Delany, 3 Bibb (Ky.) 46. 171 See Crosby v. Parker, 4 Mass, 110; Nicholas v. Chamberlain, Cro. Jac. 121. 172 1 Dembitz, Land Tit. 55. 426 TITLE. (Ch. 1& purtenance to another.*** But the sale of a house, mill, factory, barn, etc., will carry with it not only the soil actually covered by the building, but the "curtilage"; that is, the yard and garden that are habitually occupied with a dwelling house, and certain small parcels, with or without outbuildings, without which the mill, fac- tory, barn, etc., cannot be enjoyed, or which are left open between it and the highway.*** And where the word "appurtenances" is- added to the designation of a dwelling house or other building, it is not a mere empty phrase, but means what is habitually occupied with it even though it be an unfenced lot.*" 265. EXECUTION OF THE WRITING— A valid deed must be executed in -writing, subject to the folio-w- ing rules: (a) No consideration is necessary except for bargain and sale deeds and covenants to stand seised (p. 427). (b) No date is necessary (p. 428). (c) All blanks must be filled before delivery, except -where the la-w implies -what is to be inserted, or, in some states, -where parol authority has been given to fill them (p. 42S). (d) No alterations can be made after delivery (p. 428). (e) The grantor is presumed to know the contents of his deed (p. 429). (f) The deed must be sealed, in some states (p. 429). (g) The deed must be signed by the grantor, or by some one authorized to sign for him. Indentures are signed by the grantee also (p. 430). 178 Armstrong v. Dubois, 90 N. Y. 95; Ogden v, Jennings, 62 N. T. 526; Humphreys v. McKissock, 140 U. S. 304, 11 Sup. Ct. 779; Wilson v. Beckwith, 117 Mo. 61, 22 S. W. 639. A tree in tlie adjoining street will pass as an ap- purtenance. Gorham v. Electric Co. (Co. Ct.) 29 N. Y. Supp. 1094, 1T4 Allen V. Scott, 21 Pick. (Mass.) 25; Whitney v. Olney, 3 Mason, 280, Fed. Gas. No. 17,595. For the right to use a drain as appurtenant to a house, see Thayer v. Payne, 2 Cush. (Mass.) 327; Johnson v. Jordan, 2 Mete. (Mass.) 234. iTsAmmldown v. Ball, 8 Allen (Mass.) 293; Cunningham v. Webb, 69 Me. D2. But see Leonard v. White, 7 Mass. 6; Archer v. Bennett, 1 Lev. 131. § 265) REQUISITES OF DEEDS. 427 What Writi/ng Necessary. Deeds are to be written on paper or parchment,*^' and should be written with ink, though possibly a deed written with a pencil would be valid."^ The chief desideratum is durability. Part of the deed may be written and part printed. When there is any con- flict between the written and the printed parts, the written word* will control. ^^" Consideration. No consideration is necessary for modern statutory convey- ances."' Bargain and sale deeds, however, require, as we have seen/*" a consideration to make them valid, though the require- ment has been greatly relaxed in modem times. For a covenant to stand seised a good consideration is suflQcient.^'^ Between the parties to a deed it is valid without the payment of any considera- tion/** but it may not be so as to purchasers and creditors of the grantor who attack its validity, claiming that it is in fraud of their rights.^*' Where the receipt of a consideration is acknowledged in a deed, this may be rebutted so far as it operates as a receipt; ^'* though the amount so stated is prima facie the amount paid for the conveyance of the land.^*° When the receipt of consideration is thus acknowledged, it may operate as a waiver of the vendoi*'s lien as to subsequent purchasers.^** iTfl 2 Bl. Comm. 297. 177 1 Devi. Deeds, § 136. See Merrltt v. Clason, 12 Johns, (N. T.) 102. i7 8Martind. Conv. (2d Ed.) § 15. 17 9 Cunningham v. Freeborn, 11 Wend. (N. Y.) 241, 248; Rogers v. Hill- house, 3 Conn. 398. 180 Ante, p. 410. 181 Ante, p. 411. 182 Brown v. Brown (S. C.) 22 S. E. 412. 183 De Lancey v. Stearns, 66 N. Y. 157; Keys v. Test, 33 111. 317; Palmer r. Williams, 24 Mich. 328; Glidden v. Hunt, 24 Pick. (Mass.) 221. 184 McCrea v. Purmort, 16 Wend. (N. Y.) 460; Bullard v. Briggs, 7 Pick. (Mass.) 537; Wilkinson v. Scott, 17 Mass. 257; Goodspeed v. Fuller, 46 Me. 141. And see Mildmay's Case, 1 Coke, 175; Gale v. Williamson, 8 Mees. & W. 405. 186 Clements v. Landrum, 26 Ga. 401. And cf. Wilkes v. Leuson, Dyer,. 169a; Prafton v. Hawes, 102 Mass. 533. 186 Jackson v. M'Chesney, 7 Cow. (N. Y.) 360; per Sutherland, J. ^28 TITLE. (Ch. 16 Dat«. A date Is not strictly necessary for the validity of a deed,*'* and, when used, may be placed in any part of the instrument. A deed takes effect from the time of delivery, and prima facie the date given in the instrument is the date of delivery,"^ though this pre- sumption may be rebutted.^** Filling Blanks. When blanks are left in the deed, the deed is of no effect, unless it can be operative without the omitted words; and if the blanks are filled after delivery the deed is void."" There is an exception to this, however, in the case where the blanks which are filled are only such as would be implied by law.*"* Some cases hold that the grantee's name which has been omitted may be inserted according to the intention of the parties.*'* So, also, a deed may be delivered accompanied by a parol power to fill blanks,*" though the contrary is held by some courts.*'* Alterations. A deed must be completely written when it is delivered, and for this reason any alterations or interlineations in the instrument must be made before delivery,*" though they may be added after the deed has been signed.*'* An alteration by a stranger to the instrument does not affect the validity of a deed,*" and as to the i«T Thompson v. Thompson, 9 Ind. 323. i«« Lake Erie & W. R. Co. v. Whitham, 155 III. 514, 40 N. E. 1014; Ella- worth V. Railroad Co., 34 N. J. Law, 93; Ford v. Gregory's Heirs, 10 B. Mon. (Ky.) 175. 188 Fash V. Blalie, 44 111. 302; Blanchard v. Tyler, 12 Mich. 339; Henderaon T. Baltimore, 8 Md. 353; BUynn v. Flynn (N. J. Ch.) 31 Atl. 30. 190 Ingram v. Little, 14 Ga. 173. 191 U. S. V. Nelson, 2 Brock. G4, Fed. Cas. No. 15,862, per Marshal, C. J. 192 Duncan v. Hodges, 4 McCord (S. C.) 239; Devin v. Himer, 29 Iowa, 300. But see Chauncey v. Arnold, 24 N. Y. 330; Drury v. Foster, 2 Wall. 24. 193 Schintz V. McManamy, 33 Wis. 299; Clark v. Allen, 34 Iowa, 190; Pence V. Arbuckle, 22 Minn. 417; Otis v. Browning, 59 Mo. App. 326 (grantee's name). 194 Though an element of fraud is generally present. Upton v. Archer, 41 Oal. 85; Cooper v. Page, 62 Me. 192. 195 People V. Organ, 27 111. 26; Wallace v. Harmstad, 15 Pa. St. 462. 198 Stiles V. Probst, 69 III. 382; Penny v. Corwithe, 18 Johns. (N. Y.) 499. 19T Robertson v. Hay, 91 Pa. St. 242. § 265) REQUISITES OF DEEDS. 429 effect of such alterations by the grantee the cases are conflicting. Some courts hold that the only effect is on the remedy, — that is, that the grantee cannot bring snit on the deed;^°® while other courts hold that the validity of the deed is affected only as far as it is to be used in evidence.^®® Where alterations or interlineations are present in a deed, the presumption is that they were made before the deed was delivered,^"" though there are cases holding the con- trary.^°^ Reading. A painty to a deed, who can read, is conclusively presumed to know the contents of the instrument, though he did not actually read it before it was executed.^"^ If the grantor is blind, illitei*ate, or for any other reason unable to read, the deed must be read to him, if he requests it, and an incorrect reading will invalidate the deed.^°' Sealing. At common law a seal was necessary in the execution of a valid deed,^°* but in many states this requirement has been abolished.^"' A seal is defined to be "an impression on wax or wafer or some other tenacious substance capable of being impressed." *°' But a seal stamped on paper has been held good.*"^ In many states a seal 188 Herrick v. Malin, 22 Wend. (N. Y.) 388; Waring v. Smyth, 2 Barb. Ch. (N. y.) 133; Johnson v. Moore, 33 Kan. 90, 5 Pac. 406. 189 Hatch V. Hatch. 9 Mass. 307. aooHeiTick v. Malin, 22 Wend. (N. Y.) 388; Holton v. Kemp, 81 Mo. 661; Van Horn v. Bell, 11 Iowa, 465. 201 Montag v. Linn, 23 111. 503. 202 School Committee v. Kesler, 67 N. C. 443; Kimball v. Eaton, 8 N. H. 391. 20 3 Jackson v. Hayner, 12 Johns. (N. Y.) 469; Morrison v. Morrison, 27 Grat (WfL) 190; Lyons v. Van Riper. 26 N. J. Eq. 337. 204 Davis V. Brandon, 1 How. (Miss.) 154; Grandin v. Hernandez, 29 Hnn, S99; Le Franc v. Richmond, 5 Sawy. 603, Fed, Gas. No. 8,209. But see Moss T. Anderson, 7 Mo. 337. 20 5 1 stim. Am. St. Law, §§ 421, 1564. Such statutes are not retroactive. Wisdom V. Reeves (Ala.) 18 South. 13. 200 Warren v. Lynch, 5 Johns. (N. Y.) 239; Tasker v. Bartlett, 5 Gush. (Mass.) 359, 364; Bradford v. Randall, 5 Pick. (Mass.) 496. 207 Pierce v. Indscth, lOG U. S. 546, 1 Sup. Ct. 418; Pillow v. Roberts, 13- How. •9E73. But see Farmers' & Manufacturers' Bank v. Haight, 3 Hill (N. Y.) 493. The printed device "[L. S.]" has been held sxifficient Williams v. Starr, 5 Wis. 534, 549. 430 TITLE. (Ch. 16 may be supplied by a mere scroll, made with the pen.*"* In such case the instrmnent must declare that a seal is attached.'^" Cor- porations usually have seals of their own, though they may adopt any other in executing a deed.^^^ The seal of a corporation can only be attached by some one having authority.^^^ Where several persons execute the same deed, they may all use one seal.-^^ Signing. At common law it was not necessary that a deed be signed, though this is now required by the statute of frauds.-^* Where the statute requires the deed to be subscribed, the signature must be written at the end; but, in the absence of such provision, the signing may be at any other place."" If the party signing the deed is unable to write, he may sign it by a mark, and this would probably be true even though he could write.*^" The name of the grantor may be written by another for him, in his presence; ^^^ though, if the grantor is absent, the power to. sign his name must be in writing.^ ^^ TVTiere a deed is signed by another for the grantor without his au- thority, he may adopt the signature as his own, and ratify the ex ecution."® A deed by a corporation is to be signed in the cor- porate nama**' 2o» 1 sum. Am. St Law, § 1565; CJosner v. McCrum (W. Va.) 21 S. E. 739. But see Warren v. Lynch, 5 Johns. (N. Y.) 239; Perrlne v. Cheeseman, 11 N. J. Law, 174. 210 Jenkins v. Hurt's Com'rs, 2 Rand. (Va.) 44G. An Instrument containing the words "sealed with nay seal," but having no seal on it, is not a technical deed. Demhig v. Bullitt, 1 Blackf. (Ind.) 241. 211 Proprietors of Mill Dam Foundry v. Hovey, 21 Pick. (Mass.) 417, 428; Stebblns v. Merritt, 10 Cush. (Mass.) 27, 34. 212 See Jackson v. Campbell, 5 Wend. (N. Y.) 572. 213 Yale V, Flanders, 4 Wis. 96. But see note on seals, 3 Gray, Gas. Prop. 624. 214 1 Devi. Deeds, § 231. 215 1 Dembitz, Land Tit. 345. 21 « Devereux v. McMahon, 108 N. C. 134, 12 S. E. 902; Baker y, Dening, 8 Adol. & E. 94. 217 Conlan v. Grace, 36 Minn. 270, 30 N. W. 880; Schmitt v. Schmitt, 31 Minn. 106, 16 N. W. 543. 2i8McMurtry v. Brown, 6 Neb. 368. 21 » Bartlett v. Drake, 100 Mass. 174; Mutual Benefit Life Ins. Co. v. Brown. 30 N. J. Eq. 193. 2 20 Hatch V. Barr, 1 Ohio, 390; Zoller v. Ide, 1 Neb. 439. But see Bason v. Mining Co., 90 N. C. 417. § 265) REQUISITES OF DEEDS. 431 Scume — Power of Attorney. A power of attorney to execute a deed is an authority given a person to act in behalf of the grantor in making a conveyance of land. Such a person is an attorney in fact. For the execution of a valid power of attorney the same solemnities are required as for the execution of a deed.^^^ The power of attorney must con- tain a description of the premises to be conveyed,-^^ and in many states it must be recorded.^^^ Powers of attorney can be created only by persons who are sui juris.^** In some states, by statute, a married woman may release her dower by power of attorney. In other states it is held that a married woman cannot give a power of attorney, even though her husband joins with her.--® One mem- ber of a firm cannot convey partnership lands without a power of attorney from the other members.--® A power of attorney may be revoked at any time, unless a consideration has been paid for it; ^-^ but not if it is coupled with an interest, in which case the power to revoke must be expressly reserved, or none exists.^^^ Death of the one executing a power of attorney revokes it if it is a mere naked power. That is, one not coupled with an interest, and pow- ers o£ attorney to convey land are generally of this kind.^-^ The revocation of a power of attorney should be recorded if the power itself has been.^^" Where a power of attorney has been given, the authority cannot be delegated unless such delegation is authorized by the power.^^^ A power to several cannot be executed by less than all, in the absence of a provision to that effect.^^* Powers 221 Van Ostrand v. Reed, 1 Wend. (N. Y.) 424; Goree v. Wadswortli, 91 Ala. 416, 8 Sonth. 712. 22 2 Stafford v. Lick. 13 Cal. 240. 223 1 stim. Am. St. Law, § 1624 (10). 22 4 Dexter v. Hall, 15 "Wall. 9. 22 5 1 Dembitz, Land Tit. 403. 22 6 Frost V. Cattle Co., 81 Tex. 505, 17 S. W. 52. 2 2T MacGregor v. Gardner, 14 Iowa, 326. 228 Martind. Conv. (2d Ed.) § 241; Mansfield v. Mansfield, 6 Conn. 559. 229 Jenkins v. Atkins, 1 Humph. (Tenn.) 294. 2 30 Morgan v. Stell, 5 Bin. (Pa.) 305. 231 Loeb V, Drakeford, 75 Ala. 464. And see Rogers v. Cruger, 7 Johns. (N. ¥.) 557. 232 Cedar Rapids & St P. R. Co. v. Stewart, 25 Iowa, 115; White v. David- son. S Md. 109. 432 TITLE. (Ch. 16 of attorney are strictly construed,*" and a power to "sell" does not give authority to "convey." ''* A power to sell implies a sale for cash.*" WTiere a deed is executed by one who has a power of at- torney, it must be in the name of the grantor, and not of the agent, and the agent himself must show that he executes it for his prin- cipal, as by signing "A. [principal] by B. [agent]." *^' Some cases, however, are less exacting. A deed executed, "A. B., Agt. of C. D.," lias been held a good execution of a deed in which C. D. was the grantor.'^^ In executing a deed by virtue of a power of attorney, the attorney must purport to bind the grantor, and not himself.*'* Indentures and Deeds Poll. Conveyances are either indentures or deeds poll. The former i» an instrument executed and signed by both the grantor and the grantee. In its usual form, it is executed in duplicate. Original- ly the two pieces were cut apart by an irregular line, which gave the name to this form of deed. One part was given to each party, and when the deeds were produced in court the irregular margins, if they fitted, were evidence that the instruments before the court were genuine. This cutting of the margin is no longer usual, and an indenture means only a deed executed by both parties. Con- veyances of this kind usually begin with the words "This in- denture." *^' A deed poll on the other hand is one executed by the grantor only, and binds the grantee by its provisions only by reason of his acceptance of it. A deed poll usually conmiences with the words, '^now ye all men by these presents." **• 233 Geiger v. BoUes, 1 Thomp. & C. (N. Y.) 129; Brantley v. Insurance Co., 53 Ala. 554. 23* Tharp v. Brenneman, 41 Iowa, 251; Force v. Dutcher, 18 N. J. Eq. 401. 236 Lumpkin v. Wilson, 5 Heisk. (Tenn.) 555; Coulter v. Trust Co., 20 Or. 469, 26 Pac. 565, and 27 Pac. 266. 23 8 Townsend v. Hubbard, 4 Hill (N. Y.) 351; Clarke's Lessee v. Courtney, 5 Pet. 349. 237 Wilks V. Back, 2 East, 142. And see Devlnney v. Reynolds, 1 Watts & S. (Pa.) 328. 238 Echols V. Cheney, 28 Cal. 157; Fowler v. Shearer, 7 Mass. 14; Bassett V. Hawk, 114 Pa. SI:. 502, 8 Atl. 18. 239 Martind. Conv. (2d Ed.) § 61; Flnley v. Simpson, 22 N. J. Law, 311; Atlantic Dock Co. v. Leavitt. 54 N. Y. 35; Currie v. Donald^ 2 Wash. (Va.) 58; Maule v. Weaver, 7 Pa. St. 329. ««> Goodwin v. GUbert, 9 Mass. 510. § 266) BEQUISITB3 OF DEEDS. 433 266. DELIVERY AND ACCEPTANCE— A deed does not become operative until it is delivered and accepted, but the delivery may be in escrow. The delivery which is essential to the validity of a deed is the same as that required for the completion of a contract.^*^ A deed does not become effective until delivered,^*^ though an actual delivery of the paper is not necessary.**' The instrument must pass out of the control of the grantor,^** and, as to the effect of the acts of the parties, the intention governs in all cases.*** If the deed is taken by the grantee without the consent of the grantor, there is no de- livery, — as where it is stolen; and the grantee cannot pass title to a subsequent purchaser **• unless the grantor is estopped by his negligence from setting up his title against an innocent third per- son. ^*^ Delivery may be made to a third person for the grantee.*** This is the case where future estates are created in the same in- strument with those vesting in possession at once. The deed is 2*1 See Clark, Cont. 73. A delivery obtained by fraud is ineffectual. Golden v. Hardesty (Iowa) 61 N. W. 913. And see Raymond v. Glover (Cal.) 37 Pac. 772. «42 Mills V. Gore, 20 Pick. (Mass.) 28; Prutsman v. Baker, 30 Wis. 644; Johnson v. Farley, 45 N. H. 505; Paddock v. Potter, 67 Vt. 360, 31 Atl. 784; Boyd V. Slayback, 63 Cal. 493. Cf. Exton v. Scott, 6 Sim. 31. 243 Walker v. Walker, 42 111. 311; Dayton v. Newman, 19 Pa. St. 194; Far- rar v. Bridges, 5 Humph. (Tenn.) 411; Doe v. Knight, 5 Barn. & C. 671. 244 Fisher v. Hall, 41 N. Y. 416; Bank of Healdsburg v. Bailhacke, 65 Cal. 327, 4 Pac. 106. 246 Conlan v. Grace, 36 Minn. 276, 30 N. W. 880; Hill v. McNichol, 80 Me. 209, 13 Atl. 883. But see HinchlifC v. Hinman, 18 Wis. 139. 246 Tisher v. Beckwith, 30 Wis. 55. 247 Id. And see Gage v. Gage, 36 Mich. 229. 248 Winterbottom v. Pattison, 152 111. 334, 38 N. E. 1050; Stephens v. Hussk. 54 Pa, St. 20. A deed may become operative by being delivered to the record- ing officer, if so intended by the parties. Davis v. Davis (Iowa) 60 N. W. 507; Cooper V. Jackson, 4 Wis. 537; Stevenson v. Kaiser (Super. N. Y.) 29 N. Y. Supp. 1122; Kemp v. Walker, 16 Ohio, 118; Laughlin v. Dock Co., 13 C. C. A. 1, 65 Fed. 441. The presumption that a deed which has been recorded was delivered may be rebutted, for instance, by showing that the grantee had no knowledge of the existence of the deed. Union Mut Life Ins. Co. v. Camp- bell, 95 111. 268; Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; Russ v. Stratton, 11 Misc. Rep. 565, 32 N. Y. Supp. 767. BEAIi PROP.— 28 434 TITLE. (Ch. 16 given to the owner of the particular estate, and he accepts it for the jjrantees of the future estates.'" Where there are several grantees in a deed delivery to one is sufficient,^"" and delivery of a deed in which a corporation is granteee must be made to some one authorized to accept it for the corporation.^'" A deed retained for security is not delivered so as to become effectual."^ So there can be no delivery of a deed after the death of the grantor."' A de- livery to a third person, to be delivered to the grantee on the death of the grantor, is good.="^* Where there is a delivery to a third person for the grantee, the grantor must not retain power to recall the deed."" Not only is delivery necessary to the validity of a deed, but there must also be an acceptance by the grantee,"* though acceptance will sometimes be presumed from the grantee 149 Folk V. Yarn, 9 Rich. Eq. (S. C.) 303. »Bo Shelden v. Ei-skine, 78 Mich. 627, 44 N. W. 146. But see Hannah v. Swarner. 8 Watts (Pa.) 9. «5i Western R. Corp. v. Babcock, 6 Mete. (Mass.) 346. 262 Gudgen v. Besset, 6 El. & Bl. 986. 2 63 Jackson v. Leek, 12 Wend. (N. Y.) 107. A deed found among the gran- tor's papers after his death is of no effect, though It is fully executed and acknowledged, since there must be a delivery in the grantor's lifetime. Wig- gins V. Lusk, 12 111. 132; Miller v. Lullman, 81 Mo. 311. But see Oummings V. Glass, 162 Pa. St. 241, 29 Atl. 848. 2 64 Ruggles V. Lawson, 13 Johns. (N. Y.) 285; Poster v. Mansfield, 3 Mete. (Mass.) 412; Miller v. Meers, 155 111. 284, 40 N. E. 577; Belden v. Carter, 4 Day (Conn.) 66; Wheelwright v. Wheelwrignc, 2 Mass. 447; Hathaway v. Payne, 34 N. Y. 92; Latham v. Udell, 38 Mich. 238; Stephens v. Rinehart, 72 Pa. St. 434; Squires v. Summers, 85 Ind. 252; Dinwiddle v. Smith, 141 Ind. 818, 40 N. E. 748. The grantor must not reserve power to recall the deed, or the delivei-y is ineffectual. Cook v. Brown, 34 N. H. 460; Baker v. Haskell, 47 N. H. 479; Prutsman v. Baker, 30 Wis. 644. 2 56 Maynard v. Maynard, 10 Mass. 456. The return or cancellation of a deed after It has become operative by execution and delivery will not divest the estate conveyed, or restore the grantor to his former position. Furguson v. Bond, 39 W. Va. 561, 20 S. E. 591; National Union Bldg. Ass'n v. Brewer, 41 111. App. 223; Jackson v. Chase, 2 Johns. (N. Y.) 84; Raynor v. Wilson, 6 Hill (N. Y.) 469; Botsford v. Morehouse, 4 Conn. 550; 1 Dembitz, Land Tit. 325. But see Albright v. Albright, 70 Wis. 532, 36 N. W. 254; Com. v. Dud- ley, 10 Mass. 403; Holbrook v. Tirrell, 9 Pick. (Mass.) 105; Hopp v. Hopp, 156 111. 183, 41 N. E. 39; Cadxtallader v. Lovece (Tex. Civ. App.) 29 S. W. 666. 266 Jackson v. Phipps, 12 Johns. (N. Y.) 418; Thompson v. L^ach, 3 Lev. 284; Beardsley v. Hilson, 94 Ga. 50, 20 S. E. 272; Derry Bank v. Webster, I 266) REQUISITES OF DEEDS. 435 ha\'ing possession of the deed."' And also there may be a pre- sumption of acceptance from the beneficial character of the instru- ment,"* though this presumption does not obtain unless the grantee has knowledge of the existence of the deed."» The presumption of acceptance may be rebutted." ° When the actual delivery and acceptance of the deed consists of a number of connected acts, these acts may all be taken as having occurred together, and the date of the first of them is treated as the time when the deed takes effect and the title passes."^ This is known as the doctrine of relation. When a conveyance is beneficial to the grantee, it is held that a father may accept for an infant child, or a husband for a wife."^ Until a deed has been accepted by the grantee, it may be recalled, though there has been a delivery by the grantor. But this is not possible after there has been an acceptance."' Delivery and ac- ceptance are in each case matters to be proved by parol evidence."* Delivery in Escrow. A deed may be delivered in escrow; that is, into the keeping of a third person to be delivered to the grantee on the performance of some condition. "'^ When there is a delivery in escrow, and the 44 N. H. 264; Johnson v. Farley, 45 N. H. 505; Hibberd v. Smith. 67 Cal. 547, 4 Pac. 473, and 8 Pac. 46. But see Wilt v. Franklin, 1 Bin. (Pa.) 502; Merrills V.Swift, 18 Conn. 257. And cf. Moore v. Hazleton, 9 Allen (Mass.) 102.. 2 57 Tunison v. Chamblin, 88 111. 379; Tuttle v. Turner, 28 Tex. 759. 288 Church V. Oilman, 15 Wend. (N. Y.) 656; Jones v. Swayze, 42 3f. f. Law, 279; Stewart v. Weed, 11 Ind. 92. 259 Jaclison V. Phipps, 12 Johns. (N. Y.) 418; Younge v. Guilbeau, 3 Wall. 636; Fisher v. Hall, 41 N. Y. 416. But see Mitchell v. Ryan, 3 Ohio St. 377; Myrover v. French, 73 N. C. 609. 260 Hulick V. Scovil, 4 Gilman (111.) 159; Stewart v. Weed, 11 Ind. 92. 261 Johnson v. Stagg, 2 Johns. (N. Y.) 520. But the application of thl.s doc- trine will not be permitted to work an injury to third persons. Jackson v. Bard, 4 Johns. (N. Y.) 230. 26 2 Co well V. Daggett, 97 Mass. 434; Bryan v. Wash, 7 111. 557. And see Douglas V. West, 140 111. 455, 31 N. E. 403. 26S Warren v. Tobey, 32 Mich. 45; Souverbye v. Arden, 1 Johns. Ch. (N. Y.) 240; Albert v. Burbank, 25 N. J. Eq. 404. 284 Roberts v. Jackson, 1 Wend. (N. Y.) 478; Earle's Adm'rs t. Earle, 20 N. J. Law, 347. 26B Arnold v. Patrick, 6 Paige (N. Y.) 310; Johnson v. Branch, 11 Humph. (Tenn.) 521; Loubat v. Kipp, 9 Fla. 60. And see Blight v. Schenck. 10 Pa, St 285; Wallace v. Butts (Tex. Civ. App.) 31 S. W. 687. 436 TITLE. (Ch. 16 condition is porformed,"' the deed becomes effectual from the time of the first delivery, unless intervening rights have attached.^'^ There can be no delivery in escrow to the grantee himself,*** nor to his agent or attorney, unless the agent or attorney agrees to hold in that way; *°* otherwise, the deed would take effect as if no con- dition had been attached.^^" The deed, however, may be passed through the grantee to another person to hold in escrow.*''^ A deed delivered in escrow is of no effect until the condition accom- panying is performed, even though it is actually delivered to the grantee without the performance of the condition through the wrongful act of the depositary. '^^^ For a valid delivery in escrow there must be no power in the grantor to recall the deed.^^* The death of the grantor before the second delivery does not prevent the deed becoming effectual by the performance of the condition and a second delivery.''^* 267. ACKNOWLEDGMENT —A deed must be acknowl- edged by the grantor to be Ms voluntary act, be- fore some oflBcer designated by the statute, (a) To entitle it to record. (b) To give it validity, in some states. To maJie an acknowledgment the grantor goes before an ofiflcer, designated by statute, and declares that the deed is a genuine one, 288 See Johnson v. Baker, 4 Bam. & Aid. 440. 2 67 Hall V. Harris, 5 Ired. Eq. (N. C.) 303; Price v. Railroad Co., 34 111. 13; Foster v. Mansfield, 3 Mete. (Mass.) 414; Ruggles v. Lifwson, 13 Johns. (N. Y.) 285; Stephens v. Rinehart, 72 Pa. St. 434; Lindley v. Groff, 37 Minn. 338, 34 N. W. 26. 288 Whyddon's Case, Cro. Eliz. 520; Williams v. Green, Id. 884. See Degory v. Roe, 1 Leon. 152. Contra, Hawksland v. Gatchel, Cro. Eliz. 835. 269 Cincinnati, W. & Z. R. Co. v. llllT, 13 Ohio St. 235; Southern Life Ins. & Trust Co. V. Cole, 4 Fla. 359; Watkins v. Nash, L. R. 20 Eq. 262. 270 Stevenson v. Crapuoll, 114 111. 19, 28 N. E. 379; Miller v. Fletcher, 27 Grat. 403. 2T1 Gilbert v. Insurance Co., 23 Wend. (N. Y.) 43. 2T2 Everts v. Agnes, 6 Wis. 453; Illinois Cent. R. Co. v. McCuUough, 59 111. 170; Smith v. Bank, 32 Vt. 341. But see Blight v. Schencli, 10 Pa. St. 285; Wallace v. Harris, 32 Mich. 380. 27 8 James v. Vanderheyden, 1 Paige (N. Y.) 385. «74 Lindley v. Groff, 37 Minn. 338, 34 N. W. 26. § 267) REQUISITES OF DEEDS. 437 and his voluntary act. To this the ofiQcer makes a certificate. Provisions for aclinowledgment are purely statutory, and do not exist at common law. In some states acknowledgment is required, in the absence of witnesses to the deed, to give it any validity, while in others acknowledgment is only for the purpose of admitting the deed to record.^ ^° In many states it is provided that a deed prop- erly acknowledged may be read in evidence without further proof of the genuineness of its execution, ^'^" and this is true even though the deed has not been recorded.^^^ Other courts hold to the con- trary, however, but admit the unacknowledged deed as evidence against the grantor and his heirs.^^* In states where an unac- knowledged deed cannot be recorded, if such an instrument is ac- tually spread upon the records, it does not constitute notice,*^* though it may be actual notice to one who has examined the rec- QP^ 280 2s[o one has power to acknowledge a deed except the grantor, or one to whom he has given a power of attorney.^ ^^ When husband and wife have joined in a conveyance of the wife's land, both must acknowledge the deed; and so when a wife joins in her husband's deed.^®^ To release her dower she must acknowledge the deed, and in most states this acknowledgment must be separate and apart from the husband.'^^* An acknowledgment may be made at any time before the deed is placed on record or used in evi 27 6 1 Stlm. Am. St. Law, art. 157. See Alt v. Stoker, 127 Mo. 466, 30 S. W. 132. 27 6 1 stim. Am. St. Law, § 1572. 2T7 Keichline v. Keichline, 54 Pa. St 76. 27 8 Jackson v. Shepard, 2 Johns. (N. Y.) 77; Brown v. Manter, 22 N. H. 468; Gibbs v. Swift, 12 Gush. (Mass.) 393. In some states the grantor can be compelled to acknowledge a deed executed and delivered. Sullivan v. Chambers, 18 R. I. 799, 31 Atl. 167. 279 Blood V. Blood, 23 Pick. (Mass.) 80; Kerns v. Swope, 2 Watts (Pa.) 75; Dussaume t. Burnett, 5 Iowa, 95. Contra, Reed v. Kemp, 16 111. 445; Simpson v. Mundee, 3 Kan. 181. 280 Bass V. Estill, 50 Miss. 800; Manaudas v. Mann, 14 Or. 450, 13 Pac. 440. 281 1 Devi. Deeds, § 468. For method of proving deed where grantor is dead or refuses to acknowledge it see 1 Stim, Am. St. Law, art 159. 2 82 Southerland v. Hunter, 93 N. C. 310; Ferguson v. Kingsland, Id. 337. 2 88 1 Dembitz, Land Tit. 379; Richmond v. Voorhees, 10 Wash. 316, 88 Pac. 1014; Chester v. Breitling (Tex. Civ. App.) 30 S. W. 464. 438 TITLE. (Ch. 16 dence.*'* Certain officers are designated before whom acknowl- edgments may be taken; but if the person who takes the acknowl- edgment is a de facto officer the acknowledgment is sufficient.^®' An officer taking an acknowledgment must not, however, be a party to the deed,-*® though he may be a relative of one of the parties without invalidating the acknowledgment. '^^^ An acknowledgment must, in some states, show the place where it is taken,*^' and the certificate of acknowledgment should also show the official charac- ter of the officer taking it.^*^ The certificate of acknowledgment must, in general, contain the name of the grantor,2°° and must state the facts which constitute the acknowledgment,^^^ and a cer- tificate that the deed was "acknowledged" is not sufficient.^^* The signing of the deed need not be in the presence of the officer who takes the acknowledgment. The officer is not allowed to impeach liis certificate.^®' In some states the certificate of the officer is prima facie evidence only of the facts stated therein.^®* An of- ficer taking an acknowledgment may correct the certificate at any time to conform to the actual facts of the acknowledgment.^®'' 284 Pierce v. Brown, 24 Vt, 165; Johnson v. McGehee, 1 Ala. 186. An acknowledgment bearing date earlier than the date of the deed is good. Gest V. Flock, 2 N. J. Eq. 108. 288 Woodruff V. McHarry, 56 111. 218; Brown v. Lunt, 37 Me. 423. 286 Groesbeck v. Seeley, 13 :Mich. 329; Withers v. Baird, 7 Watts (I'a.) 227: Wilson V. Traer, 20 Iowa, 231. 2 87 Lynch v. Livingston, 6 X. Y. 422; Kimball v. Johnson, 14 Wis, 074. «88 Willard v. Cramer, 30 Iowa, 22; Hardin v. Osborne, GO 111. 93. 289 Lake Erie & W. R. Co. v. Whitham, 155 111. 514, 40 N. E. 1014; Final V. Backus, 18 Mich. 218; Johnston's Lessee v. Haines, 2 Ohio, 55. 2 90 Martind. Con v. (2d Ed.) § 259. But see Wilcoxon v. Osborn, 77 Mo. 021; Dail V. Moore, 51 Mo. 589. 2 91 Carpenter v. Dexter, 8 Wall. 513; Calumet & C. C. & D. Co. v. Russell, 68 111. 426; Myers v. Boyd, 96 Pa. St. 427. 292 Gill V. Fauntleroy's Heirs, 8 B. Mon. (Ky.) 177; Flanagan v. Young, 2 Har. & McH. (Md.) 38. But see McCormack v. James, 36 Fed. 14. 293 Central Bank v. Copcland, 18 Md. 305; Allen v. Lenoir, 53 Miss. 321. And see Kranichfelt v. Slattery, 12 Misc. Rep. 96, 33 N. Y. Supp. 27. 2 9* Jackson v. Schoonmaker, 4 Johns. (N. Y.) 161; Bdgerton v. Jones, 10 Minn. 429 (Gil. 341); Lennon v. White (Minn.) 63 N. W. 620; Hutchison v. Rust, 2 Grat. (Va.) 394. 295 Hanson v. Cochran, 9 Iloust. 184, 31 Atl. 880; Jordan v. Corey, 2 Ind. 385. But see Newman v. Samuels, 17 Iowa, 528. §§ 268-269) REQUISITES OF DEEDS. 439 268. WITNESSES— In some states one or two disinter- ested, witnesses to a deed are required by statute (a) For the validity of a deed, or, (b) In the absence of acknowledgment, to entitle it to record. At common law no witnesses were necessary to the validity of the deed."* But now, by statute, in many states, they are required. In some states witnesses are necessary to the validity of a deed, even between the parties, while in others they are required only when there is no acknowledgment.^®^ In some states only one witness is required, but in more two are necessary.^®* Some courts hold that deeds not witnessed as required by statute will support an ac- tion for specific performance.^®^ The witnesses required for deeds are such as are competent to testify.^"" The witnesses must not be interested in the conveyance at the time they act as witnesses,^ '^ though an interest subsequently acquired will not disqualify them.^°- Where there are several grantors of a joint estate, they are not competent witnesses for each other.*"* The witnesses must sign at the grantor's request,*"* and are competent to testify as to his mental soundness at the time the deed is executed.*"" 269. REGISTRY — A deed must be registered or recorded in some public ofB.ce provided by statute (a) To give it priority over other conveyances. (b) To give it validity, in some states. 898 2 Bl. Comm. 307. 29T 1 stim. Am. St. Law, §§ 1565, 156G. And see Price v. Haynes, 37 Mich. iS7; Center v. Morrison, 31 Barb. 355. 29 8 Carson v. Thompson, 10 Wash. 295, 38 Pac. 1116. 299 Day V. Adams, 42 Vt 510. 800 Frink v. Pond, 46 N. H. 125; Winsted Sav. Bank v. Spencer, 26 Conn. 195; Third Nat. Bank v. O'Brien, 94 Tenn. 38, 28 S. W. 293. 801 Winsted Sav. Bank v. Spencer, 26 Conn. 195. 8 02 Carter v. Corley, 23 Ala. 612. 308 Townsend v. Downer, 27 Vt. 119. 804 Pritchard v. Palmer, 88 Hun, 412, 34 N. Y. Supp. 787; Tate v. Lawrence, LI Heisk. (Tenn.) 503. 305 Brand v. Brand, 39 How. Prac. (N. Y.) 193. And see generally, as to statutes requiring attestation, 1 Dembitz, Land Tit. 348. 440 TITLE. (Ch. 16 Recording laws, and thoir application to deeds and other convey- ances, have already been discussed in connection with mortgages.*"' SAME— COVENANTS FOR TITLE. 270. Covenants for title are contracts contained in a con- veyance by which the grantor binds himself to the grantee as to certain facts in connection -with the title to the land conveyed. The usual covenants are: (a) Of seisin and right to convey (p. 442), (b) Against incumbrances (p. 444). (c) Of warranty and quiet enjoyment (p. 446), (d) For further assurance (p. 449). Express and Implied Covenants. Covenants are contracts, and their form and requisites are gov- erned by the law relating to that subject.'**^ If the deed in which the covenant is contained is void, the covenant is void.*"* A cov- enant cannot enlarge the estate conveyed in the instrument which contains the covenant, but a covenant may, in some instances, op- erate in the same way as words of limitation.^"" Covenants in deeds are either express or implied. The word "give" in a com- mon-law feoffment operated as a covenant of warranty during the grantor's life, but was not binding on his heirs.*" It has already been seen '" that implied covenants are raised by the use of the words "grant and demise" in a lease. So in the common-law ex- change of lands there are implied covenants of warranty by each party to the conveyance.*^' Deeds operating under the statute of «0 8 Ante, p. 218. 80 7 Clark, Cont. 72. 80 8 Scott V. Scott, 70 Pa. St, 24a 808 Terrett v. Taylor, 9 Cranch, 53; Shaw v. Galbralth, 7 Pa. St 111; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Winbome v. Downing, 105 N. O. 20, 10 S. E. 888. 810 1 Dembltz, Land Tit. 434. 811 Ante, p. 138. 8i2Goimes v. Redmon, 14 B. Mon. (Ky.) 234. But see Dean v. Shelly, 57 Pa. St. 427; WaUvor v. Renfro, 26 Tex. 142. As to implied warranty in partition, see ante, p. 346. § 270) COVENANTS FOR TITLE. 441 uses raise no implied covenants.'^' In some of our states implied covenants do not exist at all, while in others they are expressly provided for by statute; for instance, in several states it is pro- vided that the words "grant, bargain, and sell" raise implied cov- enants of seisin, against incumbrances, of warranty, and for quiet enjoyment^'* If express and implied covenants are both con- tained in. the conveyance, the express covenants control." ^° RecJ, and' Personal Covenants. Covenants are also classified as real and personal.'^' What such covenants are in the case of leases has already been discussed,'*^ and the same principles apply to covenants for title; that is, they are real, and run with the land, when they affect its value, and when their performance is made a charge upon the land.'^* Personal covenants are those which bind only the covenantor and his per- sonal representatives."^* Independent and Dependent Covena»» Maple V. Kussart, 53 Pa. St. 348; McNeil v. Jordan, 28 Kan. 7. § 280) ESTOPPEL. 453 Same — Dwision Lines. A large number of cases on estoppel in pais have arisen in con- nection with division lines and fences, and the holdings of the court are by no means uniform. If the parties, in locating the line, merely agree to put a fence or building on a certain line with- out any reference to where the actual boundary is, or if the fence or building was located otherwise than on the true line through mis- take, no estoppel arises, and either party may claim to the true line when it is discovered. *°° On the other hand, if the true line is un- known through loss of monuments, and the parties agree upon a division line, either themselves or through arbitrators, the parties are estopped to claim that such line is not the true line.*"* Estoppel hy Deed. No one can be estopped by deed who has not power to make a valid deed.*"* When title arises through estoppel by deed, the grantor is estopped to deny that he had the interest which he pur- ports to convey by his deed.*°^ When the deed is by indenture, both parties may be estopped to deny, unless one of them has been induced to execute the deed by fraud,*"* that the contract which arises from the conveyance is binding on them.*"" So, too, in o„ 18 Wall. 271; Davidson v. Young, 38 111. 145; Boggs v. Mining Co., 14 Cal. 279; Jewett v. Miller, 10 N. Y. 402; Andrews v. Lyons, 11 Allen (Mas-s,) 849. Contra, Maple v. Kussart, 53 Pa. St. 348. 400 Proctor v. Machine Co., 137 Mass. 159; Proprietors of Liverpool Wharf V. Prescott, 7 Allen (Mass.) 494; Thayer v. Bacon, 3 Allen (^lass.) 163. But not after acquiescence for the period of the statute of limitations. Chew V Morton, 10 Watts (Pa.) 321. Gosselin v. Smith, 154 111. 74, 39 N. E. 980; Fischer v. Silkmann, 125 Mo. 165, 28 S. W. 435. BIO Poignard v. Smith, 8 Pick. (Mass.) 272. ■511 Jones V. Lemon, 26 W. Va. 629. That a cestui que trust does not hold adversely to the trustee, see Jeter v, Davis, 109 N. C. 458, 13 S. E. 908. A mortgagor does not hold adversely to the mortgagee. Ivy v. Yancey, 129 Mo. 501, 31 S. W. 937; nor a mortgagee to the mortgagor, Dunton v. McCook (Iowa) 61 N. W. 977. 612 Rogers V. Johnson, 125 Mo. 202, 28 S. W. 635. 618 State V. Trontman, 72 N. C. 551; Little v. Downing, 37 N. H. 355; Throckmorton v. Pence, 121 Mo. 50, 25 S. W. 843. But in many states mar- ried women are no longer regarded as under disability. See A Dembilz, Land Tit. 1358. 614 Jackson v. Moore, 13 Johns. (N. Y.) 513; Swearingen v. Robertson, 39 Wis. 462. The infancy of one co-tenant will not prevent the statute running against the others. Peters v. Jones, 35 Iowa, 512. •18 Edson v. Munsell, 10 Allen (Alass.) 557. To prevent the running of the § 281) ADVERSE POSSESSION. 469 the disability is removed. But the disability must exist at the time the statute begins to run. Disability occurring after the statute be- gins to run will not suspend the operation of the statute.''^' It is usually provided that a short period shall be given to persons who have been under disability, for bringing their actions after the dis- ability is removed. Length of Possession Necessary. The leng; h of adverse possession iiece?sary to give title varies great- ly under the statutes of the several states. In a few states an abso- lute limit is fixed, beyond which mental unsoundness will not prevent the acquisition of title.'^^' So a few states have an ultimate limit, be- yond which neither exceptions nor disabilities can save the right of action.^^^ In many of the states a possession based either on color of title, or upon a title which is defective only in some named particu- lar, or on a mode of conveyance which it is the policy of the law to favor, is protected against the entry or suit of the dispossessed owner after a much shorter period than that which bars the right against a naked possession. ^^' Abandonment. The loss of title by abandonment applies strictly and only to in- corporeal hereditaments, and in that connection has already been treated of.^-" Title to corporeal property can be lost through aban- donment only by means of estoppel or the statute of limitations. The imperfect title which a disseisor has before the expiration of the full statutory period is, of course, lost if he abandons possession be- fore such time has expired. ^^^ But as to the effect of abandonment statute, greater disability Is necessary than to avoid a deed. Rugan v. Sabin, 3 C. C. A. 578, 53 Fed. 415; Asbury v. Fair, 111 N. C. 251, 16 S. B. 467. B16 Bunee v. Wolcott, 2 Conn. 27; Fleming v. Grlswold, 3 Hill (N. Y.) 85; Thci-p V. Raymond, 16 How. 247; Cunningham v. Snow, 82 Mo. 587; Lynch v. Cannon, 7 Houst. 386, 32 Atl. 391; Asbury v. Fair, 111 N. C. 251, 16 S. E. 467. The rule is otherwise as to infant heirs in some states. Machir v. May, 4 Bibb. (Ky.) 43; Rose v. Daniel, 3 Brev. (S. C.) 438. B17 2 Dembitz, Land Tit. 1359. 618 2 Dembitz, Land Tit. 1369. 618 Stoltz V. Doeriug, 112 111. 234; Burton v. Perry, 14C 111. 71. 34 N. E oO; Latta V. Clifford, 47 Fed. 614; Hunter v. Ayres, 15 B. Mon. (Ky.) 210. 620 Ante, p. 357. But see Dikes v. Miller, 24 Tex. 417, 424. 621 Dausch v. Crane, 109 Mo. 323, 19 S. W. 61. 470 TITLE. (Ch. 16 of the possession of land to which title has been acquired by adverse possession under the statute of limitations the cases are conflicting. The courts which hold that title by adverse possession affects only the remedy of the real owner hold also that the rights so acquired may be lost by abandonment.^" But in jurisdictions where the theory is that the statute of limitations transfers the title of the former owner to the disseisee, such a title cannot be lost by an abandonment of the premises after the full statutory period has expired.*** ACCRETION. 282. Where soil is gradually deposited on the shore of a body of -water, the land so formed belongs to the riparian owner on -whose property the deposit is formed. This is called accretion. We have already seen that anything which becomes permanently attached to land becomes a part of the realty, such as buildings and fixtures put upon the land. This rule is extended to cases of what is called title by accretion. By this is meant that material washed up by the sea on the lands of adjoining owners and soil deposited by rivers, which becomes attached to the banks, becomes the property of the owner of the land on which it is deposited.^^* This process is called alluvion, and must be a gradual process, as distinct from a sudden change.*^'^ When alluvion takes place, and soil of one owner 22 Doe V. Roe, 2G Ga. 5S2. 623 Inhabitants of School Dist. No. 4 v. Benson, 31 Me. 381; Schall v. Rail- road Co., 35 Pa. St. 191. A subsequent parol agreement will not divest the disseisor's title. Brown v. CocliereU, 33 Ala. 38. Nor does a re-entiy by the disseisee after the bar is complete revest the title In him. Faloon v. Sim- shauser, 130 111. 649, 22 N. E. 835. 524 Muhy V. Norton, 100 N. Y. 424, 3 N. E. 581; Camden & A. Land Co. v. Lippincott, 45 N. J. Law, 405. The fact that accretions are caused by ob- structions placed in the river by third persons does not change the rule. Tatum V. City of St. Louis, 125 Mo. G47, 28 S. W. 1002. Bigelow v. Hoover, 85 Iowa, IGl, 52 N. W. 124. Seaweed cast upon the beach belongs to the owner of the soil. Emans v. Tumbull, 2 Johns. (N. Y.) 314. 525Cooli V. McClure, 58 N. Y. 437; County of St. Clair v. Lovingston, 23 Wall. GS; Trustees of Hopkins' Academy v. Dicliinson, 9 Cush. (Mass.) 551. § 282) ACCRETION. 471 is gradually worn away, and is deposited upon the land of another, the title is held to pass to the latter, because the soil so deposited cannot be identijfied by its former owner.^^^ When, however, a sudden change transfers a considerable portion of soil from one owner and deposits it upon the land of another, title does not pass to the latter if the soil so transferred is removed within a reasonable time, and while it can be identified. "^^ When islands are formed in nonnavigable rivers, if the land on each side is owned by different persons, the island, if wholly on one side of the channel, belongs to the owner on whose land it forms.^^^ We have seen ^^* that the boundary line of each riparian proprietor extends to the middle of the stream. If the island is formed in the middle of the channel, it belongs one-half to each.^"** Islands formed in navigable rivers or in the sea are the property of the state or of the United States, according to the ownership of the fee in the land under the water.^^^ A person who owns a narrow strip along the bank or shore of a body of water becomes entitled to all deposits by aHu^ion.^^^ The owner of land which is being washed away may protect his property' by any means which will stop the action of the water, though he must not divert the current so as to 6 26 Lovingston v. St. Clair Co., G4 111. 56; Miller v. Hepburn, 8 Bush. (Ky.) 326; Gifford v. Yarborough, 5 Bing. 163; Foster v. Wright, 4 C. P. Div. 43S. 527 Woodbui-y v. Short, 17 Vt. 3S7, 389. When a parcel of land is suddenly left bare by the sea or a navigable river, it belongs to the state. Halsey v. McCormick, IS N. Y. 147; Attorney General v. Chambers, 4 De Gex & J. oo. See, also, Hodges v.. Williams, 95 N. O. 331. And so land gradually covered by the sea belongs to the state. Emans v. Turnbull, 2 Johns. (N. Y.) 313, 322; In re Hull & S. Ry., 5 Mees. & W. 327. 528ingraham v. Wilkinson, 4 Pick. (Mass.) 268; Minton v. Steele, 125 Mo. 181, 28 S. W. 746; McCuUough v. Wall, 4 Rich. Law (S. C.) 68. When an island formed in midchannel is subsequently connected with the mainland by the -water having receded, the title to the island is not changed. City of Vic- toria V. Schott (Tex. Civ. App.) 29 S. W. 681. 62 9 Ante, p. 422. 630 Inhabitants of Deerfield v. Arms, 17 Pick. (Mass.) 41. Trustees of Hop- kins' Academy v. Dickinson, 9 Gush. (Mass.) 544; Johnston v. Jones, 1 Black, 209, 222. 631 3 Washb. Real Prop. (5th Ed.) 61; Cox v. Arnold, 129 Mo. 337, 31 S. W. 592; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100; Heckman v. Swett, 99 Cal. 303, 33 Pac. 1099. And see ante, p. 5. 532 Banks v. Ogden, 2 Wall. 57, 69; Saulet v. Shepherd, 4 Wall. 508; Bristol V. Carroll Co., 95 111. 84. 472 TITLE. (Ch. 16 direct it against the land of another person, to the lattei^s injury."" When land is formed by the receding of a lake or pond, it belongs to the adjoining owners."^* Property which has been acquired by ac- cretion is transferred by a deed which conveys the land on which the deposit has been made."^'* A sudden change in the channel of a river does not change the boundary line of the riparian owners/^' DEVISE. 283. The title to real property may be transferred by de- vise subject to the folio w^ing conditions: (a) The will must be properly executed by a competent testator (p. 473). (b) It must contain -words of conveyance, and a descrip- tion of the property devised (p. 473). (c) Any interest in real property may be devised, ex- cept, in some states, subsequently acquired inter- ests (p. 474). (d) The law of the place where the land is situated gov- erns the devise (p. 474). (e) The devisee takes the land as a purchaser imme- diately on the testator's death (p. 475). (f) Devises are revoked if the testator's estate is di- vested after the execution of the will (p. 476). (g) In some states, if a devisee dies before the testator, the devise lapses (p. 477). B3 8 Gerrish v. Clough, 48 N. H. 9; Menzies v. Breadalbane, 3 Bligh ^N. S.) 414. BS4 Cook V. McClure, 58 N. Y. 437; Steers v. City of Brooklyn, 101 N. T. 51, 4 N. E. 7; Eddy v. St. Mars, 53 Vt. 462; Bowman v. Sunnuchs, 42 Wis. 233; Olson v. Huntamer (S. D.) 61 N. W. 479. But not when drained by ar- tificial means. Noyes v. Collins (Iowa) 61 N. W. 250. 630 Chicago Dock & Canal Co. v. Kinzie, 93 111, 415; Camden & A. Land Co. V. Lippincott, 45 N. J. Law, 409. But see Terrlere v. City of New Orleans, 85 La. Ann. 2()9. 680 Buttenuth v. Bridge Co., 123 111. 535, 17 N. E. 439; Rees v. McDaniel, 115 Mo. 145. 21 S. W. 913; Nebraska v. Iowa, 143 U. S. 339, 12 Sup. Ct. 396; Id., 145 U. S. 519, 12 Sup. Ct. 976. § 283) DEVISE. 473 Title by devise is that which is acquired by persons who are given land under a will. A will, as transferring land, differs from a deed principally in that it is an instrument operating after the death of its maker, while a deed operates inter vivos. The same instrument, however, may be construed either as a will or as a deed; the effort of the court construing such an instrument will be to carry out the intention of the maker."^^ But if it cannot take effect until after the latter's death, it will be deemed a will."*' The competency of testators to make wills, and of devisees to take lands under them, was considered in discussing personal capac- ity. °^® For the history of wills, the formalities necessary for their valid execution, requirements of probate, and the method of con- struing them, reference must be made to works on the law of wills. It will be possible here merely to discuss a few points which bear particularly on real property. Operati/oe Words in Wills. The words generally used in a will to dispose of real estate are "give and devise," but any other words which show the intention of the testator are sufficient.°*° The words of limitation which are necessary for the creation of the various interests in land by will have already been discussed in connection with the different es- tates.^*^ A will must contain a sufficient description of the prop- erty intended to be devised to identify it,^*^ though by construc- tion, in order to carry out the intention of testator, terms used in wills in describing property are often given a broader meaning than they would be in other instruments.'*' For instance, the word »S7 Taylor v. Kelly, 31 Ala. 59; Robinson v. Schley, 6 Ga. 526. B38 Turner v. Scott, 51 Pa. St. 126; Frederick's Appeal, 52 Pa. St. 338; Cofif- man v. Coffman, 85 Va. 459, 8 S. E. 672. 6 88 Ante, p. 381. B40 Jackson v. De Lancey, 11 Johns. (N. Y.) 365; Rossetter v. Simmons, 6 Serg. «fe R. (Pa.) 452. But see Stump y. Deneale, 2 Cranch, C. C. 640, Fed Cas. No. 13,560. 641 Ante, pp. 36, 48. B42 Swift V. Lee, 65 111. 336; Kilburn v. Dodd (N. J. Ch.) 80 Atl. 868; Me- Aleer v. Schneider, 2 App. D. C. 4«1; Asten v. Asten [1894] 3 Ch. 260. A mis- take in the number of the township has been held not to vitiate. I'riest y. Lackey, 140 Ind. 399, 39 N. E. 54. 643 As to residuary devises, see Smith r. Saunders, 2 W. Bl. 736. 474 TITLE. (Ch. 16 "liouse" has been held to be equivalent to "messuage," and to include not only the building itself, but the land appurtenant thereto with- in the curtilage, and other buildings upon the land/** So the word 'T3arn" has been held to carry with it the land on which it stood.^*" And the term "homestead" would be sufficient in a de- vise to transfer the property occupied as such."**® So, too, a devise of the income of land passes the land itself*^ Wliat can he Devised. The term "devise" applies only to real estate; when personal prop- erty is transferred by will the technical term proper is "bequeath," Any interest in real property may be devised, even possibilities, if the person who is to take is known."^*^ So a right of entry may be given by will.''*® Property acquired after the execution of the will may pass in several states by that will if such appears to be the intention of the testator.^^" But in other states the common- law rule to the contrary has been followed.^ ''^ What Law Governs Devises. Wills affecting real property are governed by the lex loci, not by the law of the place where the testator is domiciled at the exe- cution of the will or at his death. ^'^^ The same rule applies to 84 4 Rogers v. Smith, 4 Pa. St. 93; Otis v. Smith, 9 Pick. (Mass.) 293. But see Elliot v. Carter, 12 Pick. (Mass.) 437; Leonard v. White, 7 Mass. 6. 545 But not more than necessary for its complete enjoyment. Bennet v. Bittle, 4 Rawle (Pa.) 339. 540 Ford V. Ford, 70 Wis. 19, 33 N. W. 188; Hopliins v. Grimes, 14 Iowa, 73. 64 7 Reed v. Reed, 9 Mass. 372; Fox v. Phelps, 17 Wend. (N. Y.) 402. 64 8 Pond V. Bird, 10 Paige (N. Y.) 140; Thompson's Lessee v. Hoop, 6 Ohio St. 480. 54 9 1 Redf. Wills, 392. 6 50 Webb v. Archibald (Mo. Sup.) 28 S. W. 80; Briggs v. Briggs, 69 Iowa, 617, 29 N. W. 632; Morey v. Sohier, 63 N. H. 507, 3 Atl. 636. And see Stim. Am. St. Law, § 26.34. 651 Jackson v. Potter, 9 Johns. (N. Y.) 312; Girard v. Mayor, etc., 4 Rawle (Pa.) 323; Parker v. Cole, 2 J. J. Marsh. (Ky.) 503. For devises held insuf- ficient to pass after acquired realty, see Price's Appeal, 169 Pa. St. 294, 32 Atl. 455; Webster v. Wiggin (R. I.) 31 Atl. 824; McAleer v. Schneider, 2 App. D. C. 461. 552 White V. Howard, 46 N. Y. 159; Richards v. Miller, 62 111. 417; Kerr v. Moon, 9 Wheat. 565, § 283) DEVISE. 475 chattel interests in real property, although such interests are for most purposes treated as personal, and go to the personal repre- sentative on the death of the one intestate.''^' In many states a will executed according to the law of another state, where the testator is domiciled, is sufficient to pass real property within the state."*^* The validity of the will is not governed by the laws in force at the death of the testator, but by those which were in force when the will was made."^^ In many cases this is a rule prescribed by the statutes which make the change in the former law."* Nature of Title hy Devise. One who takes land by devise takes it not as heir of the testa- tor, but 'T)y purchase." "^ A devise takes effect at once on the death of the testator, and therefore the devisee must be in esse, so as to be competent to take title."® »One cannot be made to take land by devise against his will, though an acceptance is presumed, in the absence of a showing to the contrary.^"® Renunciation of title by de\'ise can probably only be made by deed, because his title under the will vests at once on the death of the testator, and no entry by the devisee is necessary to perfect it.^^** A devisee of land takes it, of course, subject to all liens and incumbrances which BBS Freke v. Carbery, L- R. 16 Eq. 461. B54 1 stim. Am. St Law, § 265G. BBS Taylor v. Mitchell, 57 Pa. St. 209; Mullen v. M'Kelvy, 5 Watts (Pa.) 399; Mullock v. Souder, 5 Watts & S. (Pa.) 198. A will void at the time It is executed will not become effectual by a subsequent change in the law. Lane's Appeal, 57 Conn. 182, 17 Atl. 926. BB6 Lawrence v. Hebbard, 1 Bradf. Sur. (N. Y.) 252. BB7 Bear's Case, 1 Leon. 112; Scott v. Scott, Amb. 383. Cf. Davis v. Kirk, 2 Kay & J. 391. But not when land is devised to one to whom it would descend. Clerk v. Smith, 1 Salk. 241; Allen v. Heber, 1 W. Bl. 22; Hurst v. Winchelsea, Id. 187; Chaplin v. Leroux, 5 Maule & S. 14; Doe v. Timins, 1 Barn. «& Aid. 530. But see Biederman v. Seymour, 3 Beav. 3GS. Contra, Ellis V. Page, 7 Cush. (Mass.) 161. 688 Ex parte Fuller, 2 Story, 327, Fed. Cas. No. 5,147; Ives v. Allyn, 13 Vt. 629. BB9 Pen-y v. Hale, 44 N. H. 363. B60 Webster v. Oilman, 1 Story, 499, Fed. Cas. No. 17,335; Graves v. Graves' Ex'r (Wis.) 63 N. W. 271. Cf. Hamilton v. Ritchie [1894] App. Cas. 310. 476 TITLE. (Ch. 16 may exist on the land, and subject also to the right to the testator's creditors to enforce their claims against it."^ Revocation of Devises hy Alteration of Estate. With the general subject to the revocation of wills we have no concern here, but certain rules relative to the revocation of par- ticular devises after they are made will be considered. If the tes- tator, after the execution of his will, sells the land devised, such sale is a revocation of that devise."" A contract to sell, which is en- forced by an action for specific performance after the testator's death, has the same effect '^^^ If part only of the land is sold, it operates as a revocation pro tanto."^"* A mortgage, however, on land devised is not a revocation of the devise.''^* Nor is a par- tition of land held in joint ownership. "*«« This effect is produced only when the estate of the testator is wholly divested. But the devisee would, of course, take only the equity of redemption where the land devised had been mortgaged."^" If, after conveying land which has been devised, the testator subsequently buys back the same property, at common law the devise was not thereby made operative again,"® but the rule is now otherwise in a number of states. In some states now, by statute, a change in the estate of the testator does not revoke a devise, unless the estate of the tes- tator is wholly divested.'^«« The deed which is to revoke a devise must be lawful and valid. If it is obtained by fraud, or at the time of its execution the grantor is incompetent, it does not af- »«i Hattersley v. Bissett, 52 N. J. Eq. 693, 30 Atl, 86; Hyde v. Heller, 10 Wash. 58(5, 3'J Pac. 249. 062 Walton V. Walton, 7 Johns. Ch. (N. Y.) 258; Adams v. Winne, 7 Paige (N. Y.) 97; Bosley v. Wyatt, 14 How. 390. 603 Brush V. Brush, 11 Ohio, 287; Wells v. Wells, 35 Miss. 638; Walton v. Walton, 7 .Johns. Ch. (N. Y.) 258. 664 4 K(>ut, Comm. 528, 529. 66 5 The devisee talies the land subject to the mortgage. Tucker v. Thurstan, 17 Ves. 131. 666 Brydges v. Duchess of Chandos, 2 Ves. Jr. 417; Barton v. Croxall, Tarn. 164. Nor is a lease a revocation. Hodgkinsou v. Wood, Cro. Car. 23. 687 See ante. p. 205. 668 Marwood v. Turner, 3 P. Wms. 163; Goodtitle v. Otway, 2 H. Bl. 516; Cave V. Holford, 3 Ves. 650. »«» 1 Stim. Am. St. Law, § 2810. § 283) DEVISE. 477 feet a previous devise.'^" But an intention to revoke a devise by an alteration in the testator's estate may be shown by evidence in or out of the conveyance."^^ A general devise, as of "my land," is defeated if the testator parts with all his land, but revives when he acquires other land in states where after-acquired property pass- es by a general devise.^^* Lapsed D&iyiaes. By the niles of the common law, if a devisee dies before the tes- tator, the devise lapses, and cannot be claimed by the devisee's heirs. It goes to the heir of the testator, and not to the residuary devisee.* This is, however, in some states now otherwise by stat- utory change, and the residuary devisee takes to the exclusion of the heir.f In many states also the statutes declare that, when a devise is to a child or a descendant of the testator, the devise shall not lapse if such descendant dies leaving issue who survive the tes- tator, and in other states there is no lapse in any case.! Even at common law a demise of an estate to be held in joint tenancy does not lapse on the death of one of the joint tenants, even as to his share, because the rule of survivorship vests such share in the co-tenant.|| But if the estate was a tenancy in common, there would be a lapse of the share of any co-tenant on his death.** When a devise is to a class, as to "children" of the testator, there is no lapse, B70 Graiiam v. Burch, 47 Minn. 171, 49 N. W. 697; Rich v. Gilkey, 73 Me. 695; Hawes v. Wyatt, 3 Brown, Ch. 156. BTiHocker v. Gentry, 3 Mete. (Ky.) 463; WickliCfe's Ex'rs v. Preston, 4 Mete. (Ky.) 178. B7 2 See McNaughton v. McNaughton, 34 N. Y. 201. * Van Beuren v. Dash, 30 N. Y. 393; Moore v. Dimond, 5 R. I. 121. A devise to a charity will lapse if the institution ceases to exist before the testator's 4eath. See Rymer v. Stanfleld [1895] 1 Ch. 19; Merrill v. Hayden, 86 Me. 133, 29 Atl. 949. 1 1 Stim. Am. St. Law, § 2822. See St. Paul's Church v. Attorney (Jeneral, 164 Mass. 188. 41 N. E. 231. X 1 stim. Am. St. Law, § 2823. II Dow V. Doyle, 103 Mass. 489; Jackson v. Roberts, 14 Gray (Mass.) .540; Putnam v. Putnam, 4 Bradf. Sur. (N. Y.) 308; Anderson v. Parsons, 4 Me. 480; Luke V. Marshall, 5 J. J. Marsh. (Ky.) 353. ** Horton v. Earle, 162 Mass. 448, 38 N. E. 1135; Morse v. Mason, 11 Allen (Mass.) 36; Van Beuren v. Dash, 30 N. Y. 393. 478 TITLE. (Ch. 16 but the suryivors take the share of the one deceased."^' The lapse of a particular estate does not destroy remainders which depend thereon, if they can take effect at once; that is, at the death of the testator."^* DESCENT. 284. The title to the real property of an intestate descends to certain persons designated by law, called heirs. The acquisition of title by descent is governed by the following rules: (a) Only estates of inheritance go to the heirs (p. 479). (b) Posthumous children may inherit (p. 480). (c) In most states an illegitimate child inherits from its mother and from its father, when acknowledged or legitimized by marriage (p. 480). (d) Advancements are deducted from the share of the person advanced (p. 481). (e) By the common law, inheritance is governed by cer- tain canons of descent w^hieh are in force in the United States in a more or less modified form (p. 482). (f) If an intestate leaves no heirs, his lands escheat to the state (p. 485). Title by descent is a matter which is regulated in each state by the local statutes, and in no two states are the statutes of descent exactly the same. Titles arising by descent must be examined with reference to the law as it existed at the death of the owner. The statute of the several states governing descent are at the pres- ent time subject to such frequent changes that no attempt to give any detail as to the statutes is feasible.''^'' Title by descent is, like 878 Magaw V. Field, 48 N. Y. 6G8: Downing v. Marshall, 23 N. Y. 3G6; Schafifer v. Kettell, 14 Allen (Mass.) 528; Yeates v. Gill, 9 B. Mon. (Ky.) 203. 674 Lawrence v. Hebbard, 1 Bradf. Sur. (N, Y.) 252; Goodall v. McLean, 2 Bradf. Sur. (N. Y.) 306. 67 B For an exhaustive discussion of statutes regulating descent, see 1 Dem- bitz, Land. Tit. c. 4. § 284) DESCENT. 479 title by devise, governed by the lex loci; "' that Is, the law of the state in which the land is located determines the manner in which it shall descend to the heirs of its intestate owner. These statutes, though they differ in the minor details, are all founded on the Eng- lish statute of descent, which was taken largely from the civil law. The owner of land may determine to whom it shall pass at his death by means of a will. If, however, he does not make a will, the law determines for him the division of his land among his heirs, or rather it selects those heirs. An ancestor is one from whom land descends, and an heir is one to whom land descends. It may be that an ancestor is really a descendant of the heir, as where a father inherits from a son."^" Persons who take under a will are not heirs. "'^^ What Descends to JETeirs. The word "descent" is applied only to real property. The per- sonal property of one who has died intestate is said to be "distrib- uted." "'^^ All the estates of inheritance of one who had died in- testate descend to his heirs, unless disposed of during his life.^*° The heirs, of course, take no rights in life estates held by the an- cestor unless they be estates per autre vie, so limited that the heirs take the remainder of such estates.^ *^ We have seen that chattels 87 8 Darby's Lessee v. Mayer, 10 Wheat. 465; Williams v. Kimball, 35 Fla. 49. 16 South. 783. B7 7 Pricliett's Lessee v. Parker, 3 Ohio St. 394. BT8 In re Donahue's Estate, 36 Cal. 329. An heir apparent Is one whose right of inheritance is indefeasible, provided he outlives the ancestor; for in- stance, under rules of primogeniture, the eldest son or his issue, who must be the heir to the father whenever he happens to die. An heir presumptive Is one who, if the ancestor should die immediately, would, under present cir- cumstances, be his heir, but whose right of inheritance may be defeated by the contingency of some nearer heir being born; for example, a brother or nephew, whose presumptive succession may be destroyed by the birth of a child. 2 Bl. Comm. 208. Heirs do not take as purchasers. Godolphin v. Abingdon, 2 Atk. 57. 67 9 Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671; In re Donahue's Estate, 36 Cal. 329; Swaine v. Burton, 15 Ves. 365. In some states the distinction between descent and distribution no longer exists. See 1 Dembitz, Land Tit. 204. 680 See ante, 34. 681 See ante, p. 67. 480 TITLE. (Ch. 16 real do not descend to the heirs, but go to the personal representa- tives.''*^ When the land of the decedent is subject to a right of curtesy, dower, or homestead, in states where these are only life interests, the land descends to the heir subject to these rights.'^*' The heii takes the land subject also to any claims Avhich the cred- itors of the intestate may have on it for the satisfaction of their demands.''^* Posthumous Children. Posthumous children are those who, at the death of their father, are en ventre sa mere, that is, those who are conceived but not born. By the early common law such children could not inherit,"*'' but the disability does not exist in the United States,"*' though in some states it has been removed only as to children of the intestate, and does not apply to collateral heirs. "^^ In a number of states it is provided by statute that the child must be bom within ten months after the death of the intestate in order to inherit."" A disposition of the property before such a child is bom will be bind- ing on the child, and the title will not be avoided as to a purchaser, though the child can claim its share in the proceeds of the sale, as against the other heirs."*' Illegitimate Children. Illegitimate children are those who are born out of lawful wed- lock. At common law such a child is the heir of no one, and can have no heirs save those of his body."^° Kow, in most states, an 682 Ante, p. 2. 68 3 See ante, pp. 80, 102, 115. 5 84 Belton V. Summer, 31 Fla. 139, 12 South. 371; Merrill v. Daffln, 24 Fla. 320, 4 South. 80G; Bushby v. Dixon, 3 Bam. & 0. 298; Stainback y. Harris, 11.5 N. C. 100, 20 S. E. 277. 6 8 5 But It is changed now in England. Goodale v. Gawthome, 2 Smale & G. 375; Richards v. Richards, Johns. Eng. Ch. 754. B86 1 stim. Am. St. Law, §§ 2S44, 3136. 6 87 1 Dembitz, Land Tit. 228. 5 83 1 stim. Am. St. Law, § 3136. 6 89 But see where the child is bom before the sale. Massle v. Hiatt's Adm'r. 82 Ky. 314. 690 Cooley v. Dewey, 4 Pick. (Mass.) 93; Bent's Adm'r v. St. Yram, 30 Mo. 2G8; Hicks v. Smith, 04 Ga. 809, 22 S. E. 153; Stover v. Boswell's Heir, 3 Dana (Ky.) 233. The issue of void marriages are in some states legitimate. § 284) DESCENT. 481 Illegitimate cMId inherits from the mother equally with legitimate children,''®^ and may take through the mother. In many states also illegitimate children inherit from the father if they have been acknowledged by him. In some they take from the father and mother when there are no other heirs; that is, they take only to prevent escheat. In a few states illegitimate children inherit from brothers and sisters, and in most states the mother inherits from an illegitimate child. In many states a subsequent marriage of the parents legitimizes the children, and makes them capable of inher- iting, like children born in lawful wedlock.''"* Advancerrtents. By the doctrine of advancements, when a lineal heir receives a gift or devise by way of portion or settlement in life, the amount so received is deducted from the share which that heir would other- wise receive from the ancestor.^®' This rule applies only when the advancement comes in the direct line, and not when it comes from a collateral; that is, it applies to children and grandchildren.'^^* The advancement is valued at the time it is given. ^^^ If the value ex- ceeds the share which the person advanced would otherwise receive as heir, he takes nothing as heir. If it is less than that, he receives Green v. Green, 126 Mo. 17, 28 S. W. 752. As to the legitimacy of children born after separation of the parents, see McNeely v. McNeely, 47 La, Ann. 1321, 17 South. 928. »»i See In re Waesch's Estate, 16G Pa. St. 204, 30 Atl. 1124. B9 2 1 stim. Am. St. Law, §§ 3150-3155; Dembitz, Land Tit 279. But see Hatch V. Ferguson, 15 C. O. A. 201, 68 Fed. 43. Some statutes provide that children born to persons living together as man and wife shall be legitimate. In re Matthias' Estate, 63 Fed. 523. As to evidence of legitimacy, see In re Pickens' Estate, 163 Pa. St. 14, 29 Atl. 875; Lavelle v. Corrignio, 86 Hun, 135, 33 N. Y. Supp. 376; Scanlon v. Walshe, 81 Md. 118, 31 Atl. 498; Jackson v. Jackson, SO Md. 176, 30 Atl. 752. 693 1 Stim. Am. St. Law, §§ 3160-3168. Money expended In education Is not an advancement. Brannock v. Hamilton, 9 Bush (Ky.) 446. But see Kent v. Hopkins, 86 Hun, 611, 33 N. Y. Supp. 767. 694 Beebe v. Estabrook, 79 N. Y. 246; Simpson v. Simpson, 114 111. 603, 4 N. E. 137, and 7 N. E. 287; Parsons v. Parsons (Ohio Sup.) 40 N. E. 165. An ad- vancement may exclude from participation in the real estate and not In the personalty. Palmer v. Culbertson, 143 N. Y. 213, 38 N. E. 109. 69 8 Palmer v. Culbertson, 143 N. Y. 213, 38 N. E. 199; Moore v. Burrow, 89 Tenn. 101, 17 S. W. 1035. KEAL PROP. — 31 4S2 TITLE. (Ch. 16 enough of the estate to make up the difiference. In some states, however, the advancement must be brought into hotchpot; that is, the one advanced must turn what he has received back into the corpus of the estate, so that the whole may be divided, otherwise he receives nothing in addition to the advancement/®' In some states no gift is considered an advancement unless so expressed in the instrument of transfer, or acknowledged as such in writing by the person ad- vanced. "^"^ Canons of Descent. At an early period in the history of the common law certain rules of inheritance, called the canons of descent, were formulated by Lord Chief Justice Hale, and, though these canons have been much changed as far as descent in this country is concerned, they are at the foundation of our laws of inheritance, and often have to be resorted to in construing statutory provisions. The canons are stated by Blackstone in the following form : Saine — Descending and Ascending Lines. "The first rule is that inheritances shall lineaJly descend to the issue of the person who last died actually seised in infinitum, but shall never lineally ascend." ''^» This rule has been changed in the United States, and persons in the ascending line, such as father and mother, are now permitted to inherit."* Same — Preference of Males. "A second general rule or canon is that the male issue shall be admitted before the female." ""^ This canon has not been adopted in the United States,""^ except that in some states the paternal kin in the ascending line are preferred to the maternal kin in the same degree.'"* 888 1 stlm. Am. St Law, § 8163 B, 2. 6 87 1 stim. Am. St. Law, § 31U2. And see Murphy r. Murphy (Iowa) 63 N. W. 697; Bi-unson v. Henry (Ind. Sup.) 39 N. B. 250. 60 8 2 Bl. Comm. 208. 689 1 stim. Am. St. Law, §§ 3109, 311L «oo 2 Bl. Comm. 212. eoi 1 Stim. Am. St. Law, § 3132. «o2 1 Stim. Am. St. Law, §§ 3107, 3117, 3121. § 284) DESCENT. 488 Same — Primogeniture. "A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together." *°^ This rule of primogeniture, as it is called, has been almost wholly abolished in the United States.^"* But in a few instances the statutes which have changed the com- mon-law rules of descent do not apply to remote collaterals, and consequently the common-law rule of primogeniture is still in force. So, in some states, the rule still applies to the estate of a trustee, and in Maryland a right to "elect" in partition — that is, to have first choice among the several shares — is reserved to the eldest male.®""^ Same — Per Stirpes and Per Capita. "A fourth rule or canon of descent is this: That the lineal de- scendants in infinitum of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person him- self would have done had he been living." ®°* This is called tak- ing per stirpes, and is not the rule in all the United States. In some states the heirs take per capita. ^*'^ When the heirs take per capita, the descendants of the deceased heir take the same, shares as those who stand in the same degree of relationship as the person deceased; that is, if there were two sons living, and three children of a deceased son, if they take per capita, each would have one-fifth of the intestate's real property. But if the inheritance was per stirpes, the sons would take one-third each, and the grandchildren would have each one-third of their father's third. Same — Collateral Hei/rs and Ancestral Lands. "A fifth rule is that, on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relation, being of the blood of the first purchaser, subject to the three preceding rules." *°* Lineal relations ®°' are those in the «03 2 Bl. Comm. 214. eo« 2 Bl. C!omm. 216. 604 1 stim. Am. St Law. § 3132. aoi i stim. Am. St. Law, § 3137. 606 1 Dembitz, Land Tit 225. 608 2 Bl. Comm. 220. 609 Relationship is of two kinds,— by consanguinity and by affinity. The former is relationship by blood, as that of father and son. Relationship bj affinity is that which arises by marriage, as husband and wife. By the common law, inheritance was only by consanguinity, never by affinity. But 484 TITLE. (Ch. 16 ascending or descending line, such as father, mother, grandfather, grandmother, son, daughter, grandson, and granddaughter. Col- lateral relatives are those which are neither in the direct ascending or descending series. Examples of collateral relatives are uncles, aunts, nephews, and nieces.*^" The degrees of relationship are in most states calculated according to the civil-law rules; *^^ that is, in ascertaining the degree of relationship between two persons you count up from the intestate to the common ancestor and then down to the collateral kinsman. In this way a father is related in the first degree, a brother or a grandfather in the second degree, an uncle or nephew in the third degree.*^- By the common-law rules the degrees of relationship are the same as by the civil law for all persons in the direct ascending or descending line. But for col- lateral kinsmen the degrees are calculated from the common an- cestor to the more remote descendant. In this way brothers are related in the first degree, while a nephew and an uncle are related in the second degree, and cousins are the same.'^' In many states a distinction is made in the descent of lands be- tween, on the one hand, lands which the ancestor acquires by de- scent or by gift or devise from a person from whom the lands would have descended to him,^^* and, on the other hand, lands which the ancestor acquires by purchase, including devise or gift fi*om a stranger. The lands embraced in the former class are called an- cestral. In the states where this distinction is recognized, the inheritance of ancestral lands is restricted to those who are of the blood of the "first purchaser," as he is called; that is, to those who can trace a relationship by consanguinity to the one who acquired in most of our states a husband or wife inherits all or part of the real estate of a decedent when there is no issue to take, in addition to curtesy or dower. 1 Stim. Am. St. Law, §§ 3109, 3123. «io 2 Bl. Comm. 202. 611 1 Stim. Am. St. Law, § 3139. «i2 McDowell V. Addams, 45 Pa. St. 430; Ryan v. Andrews, 21 Mich. 229; McCraeken v. Rogers, 6 Wis. 278; Martindale v. Kendrick, 4 G. Greene (Iowa) 307. 613 2 Bl. Comm. 206. «i* Oliver v. Vance, 34 Ark. 564; Galloway v. Robinson, 19 Ark. 396; Felton v. Billups, 2 Dev. & B. (N. C.) 308. Cf. Godbold v. Freestone, 3 Lev. 406. § 284) DESCENT. 485 the lands by purchase. In some of these states, persons who are not of the blood of the first purchaser cannot inherit at all; in others, they are merely postponed.®^" Smne — Wliole and Half Blood. "A sixth rule or canon * * * is that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood." ®^* By whole blood it is meant that the heir and the intestate are descendants from the same pair of ancestors. Relationship by the half blood would be when there was only one ancestor in common, as where the two persons were descendants of the same father, but of different mothers. The rule of the common law as given above has been changed in all states.* ^^ As to lands not deemed ancestral, the collaterals of the half blood are nowhere excluded altogether from the inheritance, though they are postponed or given lesser shares than the whole blood.®^* As to ancestral lands, they are in most cases where the distinction betw^een ancestral and other lands prevails post- poned to collaterals of the whole blood.' ^* Same — Preference of Hales in Collateral Lines. "The seventh and last rule or canon is that in collateral inherit- ances male stock shall be preferred to the female (that is, kindred de- rived from the blood of male ancestors, however remote, shall be ad- mitted before those from the blood of the female, however near), unless where the lands have in fact descended from a female." ®^° This rule has not been adopted in the United States. WTiere, as was seen in discussing the second canon, there is a postponement of the maternal to the paternal kin in the ascending line, the issue of such kin, who are collateral heirs of the intestate, take without any dis- tinction between males and females.®^^ Escheat. We have seen what provisions the law makes for the division of the lands of one who dies intestate, there being in most states rights of • IB 1 Stim. Am. St. Law, § 3134. 616 2 Bl. Comm. 224. Cf. Doed v. Whiclielo, 8 Term R. 21L 617 1 Stim. Am. St. Law, § 3133. 618 Petty V. Malier, 15 B. Mon. (Ky.) 591; Milner v. Calvert, 1 Mete. (Ky.) 472; Marlow v. King, 17 Tex. 177; Hulme v. Montgomery, 31 Miss. 105. 619 Den V. Jones, 8 N. J. Law, 340; Childress v. Cutter, 16 Mo. 24. •-'o 2 Bl. Comm. 234. • «- 1 Stim. Am. St. Law, § 3121. 486 TITLE. (Ch. 16 dower or curtesy in the surviving wife or husband, and the remainder going to the heirs of the owner; but, if no such heirs can be found, the land escheats to the state,'^* subject to the subsequent claims of heirs, if any are found. In some states there is no limitation on the time within which such claims may be brought forward, while in others various periods of limitation are prescribed.*** JUDICIAL PROCESS. 285. Title to real property may be acquired by virtue of judicial process, — (a) By conveyances under licenses (p. 486). (b) By conveyances under decrees (p. 488). (c) By tax sales (p. 490). (d) By condemnation under the right of eminent domain (p. 494). There are many instances where the title to land is transferred by order of a court. Titles acquired in this way are often spoken of as titles by involuntary alienation. In some cases this is an ac- curate enough designation, but the mental attitude of the owner is immaterial. The validity of this sort of titles depends on whether the proper notices to the parties in interest have been given and ^the requirements of procedure complied with in other respects. In some cases of title by judicial process, the order of the court is In itself suflScient to transfer the title. In other cases a conveyance of some kind is ordered by the court to be executed by the per- son holding the title, or by some officer of the court. SA.ME— CONVEYANCES UNDER LICENSES. 286. Licenses to convey lands are given by order of court in the following cases: (a) To personal representatives to convey the land of decedents (p. 487). 62 2 1 stira. Am. St. Law, §§ 1151, 3125. This Is not the feudal escheat, as to which see Johnsou v. Norway, Winch, 37. 623 1 stim. Am. St. Law, § 1154. § 286) CONVEYANCES UNDER UCENSES. 487 (b) To guardians to convey the land of persons under disability (p. 487). (c) To tenants in possession to convey settled estates, in some states (p. 4s8), Conveyances hy Personal Mepresentatwes. In the administration of the estate of a decedent it often becomes necessary, because of the failure of the personal estate, to sell part of the real property to satisfy the claims of creditors and pay the expenses of administration, or to pay legacies which the testator has given. When executors are given a power to sell lands by the will which appoints them, the sale is, of course, according to the intention of the testator, and not under license of court.*^* Per- sonal representatives may not dispose of realty without an order of the court.'*' Notice to persons interested or affected by the sale must be given before an order can be obtained.'** And the other formalities prescribed by statute must be followed."^ Convey a/nces hy Cuardians. In treating of personal capacity, it was seen that many persons could hold lands who had no power to convey them. But, as it is often necessary for the interests of such persons that some dispo- sition be made of their lands, as that the lands of infants or insane persons be sold to provide for their support, their guardians are authorized, on presenting the matter to the court having jurisdic- tion, to make the necessary conveyances.'*' Certain formalities, «24 White V. Moses, 21 Cal. 44; Payne v. Payne, 18 Cal. 291. 82 5 See 2 Dembitz, Land Tit. 1114; First Nat. Bank v. Hanna, 12 Ind. App. 240. 39 N. E. 1054. And cf. Worthy v. Johnson, 8 Ga, 236; Campbell V. Knights, 26 Me. 224. The order to sell must describe the land. Borders V. Hodges, 154 111. 498, 39 N. E. 597; Melton v. Fitch, 125 Mo. 281, 28 S. W. 612. 626 Rogers V. Johnson, 125 Mo. 202, 28 S. W. 635; Picard v. Moutross (Miss.) 17 South. 375. 62 7 See Durfee v. Joslyn, 101 Mich. 551, 60 N. W. 39; Melton v. Fitch, 125 Mo. 281, 28 S. W. 612; Rodgers v. Rodgers' Adm'r (Ky.) 31 S. W. 139. 6 28 See 2 Dembitz, Land Tit. §§ 151, 152; Bellamy v. Thornton, 103 Ala. 404, 15 South. 831; Williams v. Pollard (Tex. Civ. App.) 28 S. W. 1020. An estate in remainder may be sold. Wallace v. Jones, 93 Ga. 419, 21 S. B. 89. 488 TITLE. (Ch. 16 such as filing a bond,'" giving notice,"" and making a report,"* are required. Conveyances of Settled Estates. Closely akin to sales of lands of persons nnder disability are sales of settled estates; that is, when the alienation of land in the ordinary ways is impossible because the whole ownership is divided between life tenants and remainder-men, some of whom may be unborn or unascertained, there are in some states statutes which permit the sale of such lands, and the investment of the proceeds in other realty under the same limitations. Such sales are often desirable when the lands are of no beneficial value to the life ten- ants, or are subject to incumbrances.^'^ Sales of settled estates cannot be made unless there is a statute authorizing them."* SAME— CONVEYANCES UNDER DECREES. 287. The principal cases in \vrhich the title to land is transferred under a decree of court are the follow- ing: (a) Partition proceedings (p. 488). (b) Decrees for specific performance (p. 488). (c) Sales on execution (p. 489). Partition. It has already been seen that partition is the method of dividing joint estates, so that they may be held in severalty, and that par- tition may be had against the will of the co-tenants. So, too, it has been seen that a sale will be ordered when the land cannot be divided.®** Sjpe general rule is given by Mr. Black •" for determining when there has been a sufficient compliance with the statute: "When the statute under which the land is sold for taxes directs an act to be done, or prescribes the form, time, and manner of doing an act, such an act must be done in the form, time, and manner prescribed, or the title is invalid, and in this respect the statute must be strictly, if not literally, complied with- But in determining what is required to be done, the statute must receive a reasonable construction; and when no particular form or manner of doing an act is prescribed, any mode which effects the object with reasonable certainty is sufficient. But special stress should always be laid upon those provisions which are designed for the protection of the taxpayer." Judicial Sale. In some states the method of selling land for taxes by summary proceedings is not employed, but the collector of taxes is required to bring an action in a court before any power is acquired to sell the land of the person owing the taxes.^^^ These suits, as stated in the black letter, are of two kinds. If against the person who owes the taxes, jurisdiction of the person must be acquired. The judgment, when rendered, is a lien on his land, which may be enforced by execution. The other kinds of suits proceed against the land itself, as though the taxes were due from it, and notice of the proceeding to the owner of the land may be constructive only, as where it is by publication,^^* (hough such notice, when given, must contain a description of the 'iand.«^° In this kind of suit the land is ordered to be sold, and the officer making the sale gives a certificate of purchase, which, ufter a period allowed for redemption, entitles the holder to a deed. Redemption and Tax Deed. After a sale of lands for taxes, the owner is given an opportunity to redeem before the title of the purchaser becomes absolute.'®^ 6»T Tax Titles (2d Ed.) § 155. 6&8 2 Dembitz, Land Tit. 1334. As to who can sue, see San Diego Co. v. Southern Pac. R. Co., 108 Cal. 46, 40 Pac. 1052. 6 50 Schmidt v. Niemeyer, 100 Mo. 207, 13 S. W. 405; Payne v. Lott, 90 .Mo. G76, 3 S. W. 402. But see Martin v. Parsons, 49 Cal. 95. 600 Smith V. Kipp, 49 Minn. 119, 51 N. W. G56; Vaughan v. Daniels, 98 Mo. 230, 11 S. W. 573; Milner v. Shipley, 94 Mo. 106, 7 S. W. 175. 6C1 Black, Tax Titles (2d Ed.) c. 23. And see People v. Campbell, 143 -§§ 288-290) TAX TITLES. 493 At the time of the sale the purchaser is given a certificate of pur- chase. The statutes usually provide that the rights of a purchaser under a certificate may be assigned.^^* Until the period of redemp- tion expires, the owner is entitled to the possession of the land and to its profits.®®^ In most states the holder of a certificate of pur- chase is entitled to a deed on the expiration of the period of redemp- tion,^^* but in some states a foreclosure of the right of redemption is necessary,®^" The tax deed, when issued, must contain all the ele- ments required by the statute, and show by its recitals a complete performance of all that is required by law, before a sale is lawful ; such as authority,®®" assessment, and delinquency.'®^ There must ^Iso be a description of the lands sold.'®* If any of these things are wanting, the deed cannot be reformed in equity.®®* Estate Taken hy Purchaser. In many states a new title is created by a tax sale, and all con tingent rights in the land are cut off, though, when this is the rule, a remainder-man, and others having contingent interests, are given N. Y. 335, 38 N. E. 300; Douglass v. McKeever, 54 Kan. 767, 39 Pac. 703; Rich V. Braxton, 158 U. S. 375, 15 Sup. Ct 1006; Stone v. Stone, 163 Mass. 474, 40 N. E. 897. «62 An assignment in the absence of such a statutory authorization would probably be void. Billings v. McDermott, 15 Fla. 60; Sapp v. Morrill, 8 Kan. 677. 663 Elliott V. Parker, 72 Iowa, 746, 32 N. W. 494; Mayo v. Woods, 31 Cal. ■269. 664 Wettig v. Bowman, 39 111. 416. Cf. Ives v. Lynn, 7 Conn. 505. 66 6 Black, Tax Titles (2d Ed.) § 383; Alexander v. Thacker, 43 Neb. 494, 61 N. W. 738. 666 Cogel V. Raph, 24 Minn. 194; Madland v, Benland, Id. 372; Atklson v. Improvement Co., 125 Mo. 565, 28 S. W. 861; Ward v. Montgomery, 57 Ind. 276. 667 Gilfillan v. Chatterton, 38 Minn. 335. 37 N. W. 583; Hubbard v. John- fion, 9 Kan. 632. 668 Campbell v. Packard, 61 Wis. 88, 20 N. W. 672; Ellsworth v. Nelson, 81 Iowa, 57, 46 N. W. 740. For descriptions held sufficient, see Sibley v. Smith, 2 Mich. 486; Taylor v. Wright, 121 III. 455, 13 N. E. 529; Harris v. Curran, 32 Kan. 580. 4 Pac. 1044; Levy v. Ladd, 35 Fla. 391, 17 South. 635. • 69 Altes V. Hinckler, 36 111. 265; Keepfer v. Force, 86 Ind. 81; Bowers T. Andrews, 52 Miss. 596. Contra, Hickman v. Kempner, 35 Ark. 505. 494 TiTLK. (Ch. 16 an opportunity to redeem from the sale.®^° If those having such interest do not redeem, they lose their rights. Tliis extends even to the rights to dower "^ and homestead."^* In other states the tax deed passes only the interest of the person assessed. '^^ Even where this rule obtains, the rights of mortgagees will be lost if the land is sold for taxes,"^* and in the same way judgment liens and other rights growing out of and depending on the estate of the one owing the taxes are cut off.'" SAME— EMINENT DOMAIN. 291. Under the right of eminent domain, land belonging to private persons may be taken for public uses upon compensation being made. The right may be exercised (a) By the United States or the states. (b) By private persons or corporations duly authorized. The taking of land under the right of eminent domain differs from taxation in that compensation is provided to the owner when his land is taken under the former. Land can be taken under this power only for public uses. This, however, is a question of constitutional law."' As to what constitutes a taking, and as to what will be an additional burden imposed on land taken under this power, as by putting a railway on lands previously taken for a highway, the same reference must be made. Power to condemn lands under the right of eminent «To Atkins v. Hinman, 7 111. 4.37; Kunes v. McCIoskey, 115 Pa. St. 461, 9 Atl. 83; Langley v. Chapin, 134 Mass. 82; Jackson v. Babcock, 16 N. Y. 246. 671 Black, Tax Titles, § 422. But that the wife must be made a party to a tax suit, see Blevins v. Smith, 104 Mo. 583, 16 S. W. 213. •72 Shell v. Duncan, 31 S. C. 547, 10 S. E. 330. «73 Cross v. Taylor (Ga.) 6 S. E. 179; Dyer v. Bank, 14 Ala. 622. 874 Parker v. Baxter, 2 Gray (Mass.) 185; Becker v. Howard, 66 N. T. 5; Fager v, Campbell, 5 Watts (Pa.) 287. «75 Jenkins v. Newman. 122 Ind. 99, 23 N. E. 683. But, If the land Is re- deemed by the owner, the judgment lien Is not affected. Appeal of Singer (Pa. Sup.) 7 Atl. 800. The lien of prior taxes is also divested by a tax sale. Huzzard v. Trego, 35 Pa. St. 9; Law v. People, 116 111. 244, 4 N. E. S45. • 7 6 See Black, Const. Law, 355. § 291) EMINENT DOMAIN. 495 domain may be, and often is, delegated eitlier to private persons or to corporations, though, it is usually said that such persons or cor- porations must perform some public function.*''^ The provisions in the federal and state constitutions prohibiting the taking of a per- son's property without due compensation cover cases of eminent domain/^^ Damages in such cases are in some states assessed by commissioners and in others by juries. It is generally provided that the compensation must be made before the land is actually taken. Any property is subject to the exercise of this right, even including franchises."^® The United States may condemn lands belonging to a state as vrell as if owned by private persons.®^" But when the United States or a state take land under this right, they must make compen- sation, the same as other persons."'* «T7 Beekman v. Railroad Co., 3 Paige (N. T.) 45; Weir v. Railroad Co., 18 Minn. 155 (Gil. 139); In re Theresa Drainage Dist., 90 Wis. 301, 63 N. W. 288; Secombe v. Railroad Co., 23 Wall. 108; U. S. v. Certain Tract of Land, 67 Fed. 869; Jockheck v. Commissioners, 53 Kan. 780, 37 Pac. 021, «T8 Black, Const, Law, 366. «T9 Central" Bridge Corp. v. Lowell, 4 Gray (Mass.) 474; Com. v. Canal Co., 66 Pa. St 41; West River Bridge Co. v. Dix, 6 How. 507. • 80 Stockton V. Railroad Co., 32 Fed. 9. A state may condemn property of the United States. U. S. v. Railroad Bridge Co., 6 McLean, 517, Fed. Cas.' No. 16,114; U. S. v. Chicago, 7 How. 185. 681 For statutory provisions on eminent domain, see, in general, 1 Stlm. Am. St. Law, S§ 1140-1144. TABLE OF CASES CITED. [THE FIGURES REFER TO PAGES.] V. Cooper, 14G. Abbey v. Wheeler, 341. Abbey Homestead Ass'n v. WUlard, 464. Abbiss V. Burney, 294, 323, 328, Abbott V. Allen, 443. V. Berry, .346. V. Butler, 360. V. Essex Co., 326. V. Godfroy's Heirs, 191, 247. V. Kasson, 232. V. Powell, 204. V. Railway Co., 372. V. Upton, 209. V. Weekly, 354. Abbott of Sherbourne's Case, 65. Abercrombie v. Riddle, 60. Absor V. French, 363. Achorn v. Jackson, 418. Acker v. Priest, 262. Ackerman v. Shelp, 354, 355. Ackerman's Adm'rs v. Vreeland's Ex'r, 305. Ackland v. Lutley, 150. Ackless V. Seekright. 306. Ackroyd v. Smith, 355. Acton V. Blundell, 371. Adair v. Lott, 73, 75, 79. Adams v. Adams, 79, 84, 165, 272. V. Beadle, 8. V. Buchanan, 193. T. Bucklin, 377. V. Corriston, 184, 19&. V. Cuddy, 223. V. Freeman, 166. V. Guerard, 296. KEAL PROP. — 83 Adams V. Hill, 83 V. Jenkins, 118. V. Johnson, 191. V. Knowlton, 339. V. Lindell, 174. V. Logan, 75, 79. V. McKesson's Ex'x, 154. V. Medsker, 416. V. Niemann, 181. V. Parker, 210. V. Rivers, 362. V. Ross, 36, 297. V. Savage, 299. V. Sayre, 202. V. Terre-Tenants of Savage, 299. V. Walker, 371. V. Winne, 475. Addison v. Hack, 167, 168, 358. Aderhold v. Supply Co., 153. Adlum V. Yard, 408. Advance Coal Co. v. Miller, 12. Aetna Fire Ins. Co. v. Tyler, 198, Aetna Life Ins. Co. v. Corn, 232. Agate V. Lowenbein, 65. Agawam Canal Co. v. Edwards, 422. Agricultural Bank of Mississippi v. Rice, 416. Ahern v. McCarthy, 187. Ahrend v. Odiorne, 192. Aiken v. Benedict, 4. V. Railway Co., 232. Aikin v. Railway Corp., 3S0. Aiman v. Stout, 384. Ainsworth v. Ritt, 153. Alabama & G. Manuf'g Co. v. Eob- Inson, 182. Albany's Case, 322. Albee v. Carpenter, 49. (497) 498 CASES CITED. [The figures refer to pages.] Albert v. Burbank, 435. Albright v. Albright, 434. Alderson v. Caskey, 189. V. Miller, 453. Aldersou's Heirs v. Henderson, 98. Aldine Mauuf'g Co. v. Barnard, 18. Aldrich V, Husband. 12. Aldridge v. Dunn, 193. Alexander v. Alexander, 82, 114, 319. V. Cunningham, 86. V. Ellison, 342. V. Fisher, 63. V. Jackson, 116. V. Pendleton, 213. V. Tarns, 267. V. Thacker, 493. V. U. S., 4. V. Warrauee, 74, 77. V. Welch, 204. Alford V. Vickery, 162. Algonquin Coal Co. v. Northern Coal & Iron Co., 460. Alkire v. Kahle, 339. Allan V. Gomuie, 360. Alleman v. Hawley, 342. Allen V. Allen, 54, 462, 464. V. Bloomer, 57. V. Biyan, 145. V. Cadwell, 216. V. Cook, 123. V. De Groodt, 289. V. Elderkin, 196. V. Everly, 184. V. Hartnett, 109. V. Hawley, 116. V. Heber, 475. V. Hooper, 71. V. Hopper, 387. V. Howe, 172. V. Howley, 126. V. Keily, 165. V. Kennedy, 441, 449. V. Lenoir, 438. V. Loring, 193. V. McCoy, 87. V. Manasse, 114. V. Markle, 48. V. Pray, 109. V. Sayward, 441. V. Scott, 426. V. Trustees, 49, 302. T. Whitaker, 118. Alley V. Bay, 119. Allin V. Bunce, 48. All is V. BUlings, 384. V. Field, 467. Allore V. Jewell, 384. Allyn V. Mather, 327. Alston V. Grant, 142. Alt V. Banholzer, 207. V. Stoker, 437. Altemus v. Campbell, 459. Altes V. Hinckler, 493. Althof V. Conheim, 339. Alwood V. Ruckman, 154, 155. Ambler v. Woodbridge, 175. Ambs V. Hill, 19. V. Railway Co., 417. Amcotts V. Catherlch, 84. American Bank-Note Co. v. New York El. R. Co., 364. American Button-Hole, Overseaming & Sewing-Mach. Co. v. Burlington Mut. Loan Ass'n, 201, 237. American Emigrant Co. v. Clark, 416. American Mortg. Co. v. Hill, 59. V. Hopper, 403. American River Water Co. t. Ams- den, 6. Ames, Ex parte, 12. V, Cadogan, 317. V. Norman, 338, 343. V. Richardson, 198. Amesbury v. Brown, 50. Amick V. Brubaker, 159. Amidon v. Harris, 355, 373. Ammidown v. Ball, 426. Amory v. Meredith, 316. Amoskeag Mauuf'g Co. v. Goodale, 356. Amphlett v. Hibbard, 116, 120, 123, 247. Amsden v. Atwood, 160. Anderson v. Anderson, 145. V. Bank, 210. V. Baughman, 42L V. Caiy, 395. V. Coburn, 451. T. Dugas, 223. V. Jackson, 326. V. Parsons, 477, V. Prindle, 158. V. Roberts, 393. V. Smith, 180. CASES CITED. 499 [The figures refer to pages.] Ajiderson v. Spencer, 194. Anding v. Davis, 238. Andrae v. Haseltine, 367. Andrew v. Pearce, 451. Andrews v. Andrews, 108, 275. V. Bassett, 110. V. Button Co., 19. V. Emmot, 316. V. Hailes, 144. V. Lyons, 453. V. President, etc., 262. V. Senter, 175. Andries v. Railway Co., 353. Angell V. Rosenbury, 261, 262, Angus V. Dalton, 353. Anheuser-Busch Brewing Ass'n v. Peterson, 142. Annable v. Patch, 301. Ann Arbor Sav. Bank v. Webb, 231. Anon., 5, 20, 45, 50, 65, 137, 252, 253, 260, 266, 315, 366, 368, 374, 375, 395. Anon. V. Cooper, 146. Anthony v. Anthony, 288. V. Railway Co., 142. V. Rice, 120, 124. Antoni v. Belknap, 22. Apple V. Apple, 84, 91. Appleton V. Boyd, 336. Appling V. Odom, 154. Arcedeckne v. Kelk, 363. Archer v. Bennett, 426. Archer's Case, 294, 297, 303. Ards V. Watkin, 148. Arkwright v. Gell, 372. Arlin t. Brown, 192. Arment v. Hensel, 66. Armour Pack. Co. v. Wolffs 196. Arms V. Burt, 36. Armstrong v. Abbott, 213, 215. V. Bicknell, 155. V. Dubois, 426. V. Michener, 38. V. Moore, 321. V. Mudd, 421. V. Wheeler, 149. V. Wilson, 80. V. Wolsey, 266. Arnold v. Arnold, 343. V. Brown, 48. V. Elmore, 422, 423. T. Green, 203. T. Holbrook, 363. Arnold v. Iron Works, 38i. V. Mundy, 5. V. Patrick, 435. V. Ruggles, 25. V. Townsend, 384. V. Wainwright, 340. Arnold's Heirs v. Arnold's Adm'r. 92. Arnsby t. Woodward, 151. Arp V. Jacobs, 114. Argues v. Waason, 185. Asbury v. Fair, 469. Ashcroft V. Railroad Co., 351, 417. 41S. Ashhurst v. Phonograph Co., 15'J. Ashhurst's Appeal, 41. Ashley v. Ashley, 287, 326. T. Warner, 178. Ashton's Case, 108. Ashville Division No. 15 v. Aston, 417. Astbury, Ex parte, 13, 21. Asten V. Asten, 473. Astley V. Micklethwait, 293, 294. Astor V. Miller, 148. Astry V. Ballard, 64. Atherton v. Pye, 287. Atkins V. Bordman, 351, 353. V. Hinman, 494. V. Kron, 60. V. Sawyer, 209. V. Sleeper, 134. Atkinson v. Atkinson, 114, 115. V. Baker, 68. V. Improvement Co., 493. V. Miller, 191. v. Walton, 182. Atlantic Dock Co. v. Leavitt, 432. AttersoU v. Stevens, (Hi, 145. Attorney General v. Chambers, 5, 471. V. Gill, 329. V. INIarlborough, 49. V. Merrimack Manuf'g Co., 170. T. Old South Soc, 275. V. Rector, etc., 276, 277. V. Wallace's Devisees. 275. V. Williams, 356. Attwater v. Attwater, 395. Atwater v. Bodlish, 360. Atwood V. Atwood. 84, 101. V. Dolan, 72. V. Pulp Co.. 195. V. Vincent, 192. Auer V. Penn, 409. Aughinbaugh v. Coppenheffer, 140. 500 CASES CITED. [The figures refer to pages.] Aultman & Co. v. Salinas, 123. Aultnian & Taylor Manufg Co. v. Kicharcl.son, 417. Aurora Fire Ins. Co. v. Eddy, 198. Austen v. Taylor, 258. Austin V. Austin, 181. V. Cambridgeport Parish, 176. V. Pulschen, 214. V. Railroad Co., 65, 142, 365. V. Stanley, 121. V. Stevens, 61. V. Underwood, 126. Auworth V. Johnson, 139. Avelyn v. Ward, 302. Averill v. Taylor, 132, 234. Averitt v. Elliot, 250. Avern v. Lloyd, 324. Avery v. Clark, 193. V. Dougherty, 139. V. Payne, 344. Aitell V. Warden, 127. Ay cock V. Railroad Co., 142. Ayer v. Spring, 97. Ayers v. Grill, 124. V. Hawks, 122. V. Staley, 2fX). Aymar v. Bill, 210. Ayres v. Draper, 1G2. V. Railroad Co., 363. Ayton V. Ayton, 289. Babb V. Perley, 70-72. Babbitt v. Babbitt, 262. V. Day, 92, 93. Babcock v. Collins, 416. Bachelder v. Wakefield, 353. Back V. Stacey, 363. Backenstoss v. Stabler, 8. Backus V. Burke, 249. V. Sternberg, 158. Backus' Adm'rs v. McCoy, 443. Bacon v. Bowdoin, 131. V. Cottrell, 202. v. Huntington, 170. V. Lincoln, 443. V. Smith, 304. V. Van Schoonhoven, 227. Baggett V. Meux, 396. Bagley v. Freeman, 149. Bagley ▼ Kennedy, 458. V. Morrill, 422. Bagnell v. Broderick, 402, 403. Bagott V. Orr, 5. Baile v. Coleman, 297. Bailey v. Carleton, 462. V. Duncan, 71. V. Gould, 210. V. Metcalf, 230. V. Seymour, 455. V. Sisson, 345. V. Stephens, 374. Bain v. Brand, 20. Bainbridge v. Sherlock, 370t Bakeman v. Talbot, 356. Baker v. Adams, 161. V. Atherton, 14. V. Baker, 191, 488. V. Bliss, 214. V. Bridge, 38. V. Colhns, 246. V. Colony, 1S5, 19L V. Dening, 430. V. Frick, 356. V. Haskell, 434. V. Heiskell, 78. V. Hunt, 443. V. Leibert, 93. V. Mclntirff, 143. V. Mather, 216. V. Mott, 171. V. Railway Co., 104. V. Swan's Lessee, 461. V. Terrell, 207. V. Thrasher, 190. Bakewell v. Ogden, 317. Baldwin v. Allison, 270. V. Breed, 20. V. Golde, 385. V. Hatchett, 212. V. Humphrey, 272. V. Sager, 215. V. Taylor, 167. V. Tuttle, 393. Bales V. Periy, 315. Balfour v. Russell, 152. Ball V. Herbert, 370. V. Nye, 371. V. Setzer, 204. Ballard v. Carter, 272. V. Dyson, 361. V. Johnson, 146. CASES CITED. 501 [The figures refer to pages.] Ballentine v. Poyner, 64. Ballou V. Wood, 342. Balston v. Bensted, 371. Bamberger v. Geiser, 227. Bancroft v. City of Cambridge, 31. V. Curtis, 386. Bangor House Proprietary v. Brown, 362. Bangs V. Smith, 316. Banicli v. Horner, 249. Banli of America v. Banlis, 453. Banlc of Healdsburg v. Bailhaclje, 433. Banli of Louisville v, Baumeister, 185. Bank of New York v. Ballard's As- signee, 287. Bank of Orleans v. Flagg, 217. Bank of Oroville v. Lawrence, 225. Bank of South Carolina v. Rose, 236. Bank of State v. Forney, 395. Bank of Suisun v. Stark, 171. Bank of Ukiah v. Petaluma Sav. Bank, 226. Bank of U. S. v. Benning, 453. V. Housman, 266. Bank of Utica v. Finch, 229. Bank of Versailles v. Guthrey, 113. Banks v. Ogden, 471. Banning v. Bradford, 248. V. Edes, 226. Bannister v. Bannister, 110. Bannon v. Angier, 357. Barber v. Harris. 338. V. Root, 71. V. Stone, 152. Barclay y. Picker, 153. Bard v. Poole, 247. Bare v. Bare, 110. Barker v. Barker, 74, 77, 80. V. Keete, 266. V. Parker, 91. Barkley v. Wilcox, 371, 372. Barksdale v. Gamage, 54. V. Garrett, 111. Barlow v. Dahm, 145. V. McKinley, 446. V. Salter, 327. V. Wainwright, 156. Barnaby v. Baruaby, 382. Barnard v. Cushman, 234. V. Godscall, 137. Barnes v. Barnes, 168. Barnes v. Burl, 418. V. Cunningham, 83. V. Dow, 396. V. Gay, 125. V. Lloyd, 357. V. Lynch, 343. V. Mott, 203. V. Sabron, 370. Bamet v. Dougherty, 267. Barnett v. Barnett, 420. V. Johnson, 3, 364. V. Nelson. 201. Barnett's Appeal, 255, 272. Barney v. Frowner, 97. V. Griffin, 394. V. Keith, 138. V. Keokuk, 5, 423. V. McCarty, 222. Barnhart v. Lockwood, 152. Barnitz's Lessee v. Casey, 306. Barnstable Sav. Bank v. Barrett, 288. Barnum v. Barnum, 60. V. Phenix, 211. Barr v. Galloway, 75. V. Hatch, 318. V. Schroeder, 408. V. Vanalstine, 247. Barren v. Joy, 262. Barrett v. Hinckley, 183, 198. V. Ice Co., 6. v. Trainor, 148. Barrie v. Smith, 175. Barron v. Barron, 72, Barrows v. Barrows, 123. Barry v. Exchange Co., 263, 389. V. Shelby, 58. V. Smith, 154. Bartenbach, In re, 104. Bartholomew v. West, 116. Bartlet v. Harlow, 343. V. King, 276. Bartlett v. Borden, 196. V. Drake, 430. r. Gouge, 89. V. Wade, 210, 228. V. Wood. 13. Barton v. Briscoe, 396. V. Croxall, 476. V. Drake, 123. Bascome v. Albertson, 277. 602 CASES CITED. [The figures refer to pages.] Bason v. Mining Co., 430. Bass V. Edwards, 359. V. Estill, 219, 437. V. Power Co., 167. V. Wheless, 200. Bassett v. Bradley, 208. V. Hawk, 432. V. Mason, 242. V. Messner, 118. Batchelor v. Whitaker, 36. Bateman v. Bluck. 363. V. Hotchkin, GG. V. Maddox, 159. V. Pool, 114. Bates V. Bates. 322. V. Norcross, 446, 447, 455. V. Ruddick, 237. V. Schraeder, 80. V. Shraeder, 304. V. Swiger, 418, 452. Battel! v. Torrey, 383. Batterman v. Albright, 8. Battey v. Hopkins, 300. Baugan v. Mann, 363. Baum V. Gaffy, 181. V. Grlssby, 193. Baumgartner v. Peterson, 228. Baxter v. Bradbury, 451. V. Lansing, 151. V. Smith, 385. liayer v. Cockrill, 256. Bayler v. Com., 305, 416. IBayles v. Young, 213. IBayley v. Bailey, 206. V. Greenleaf, 193. Baylis v. Tyssen-Amhurst, 374. Bayzer t. Mill Co., 6. Beach v. Haynes, 37. V. Miller, 83, 446. Beadle v. Hunter, 467. Beal V. Car-Spring Co., 153. V. Harrington, 193. V. Warren, 393. Beall V. Davenport, 144. V. Fox's Ex'rs, 277. Beall's Lessee v. Holmes, 57, Bealor v. Hahn, 81. Bean v. Boothby, 232. V. Mayo, 445. V. Stoneman, 441. Bear v. Snyder, 92. V. Stahl, 103, Beard v. Nutthall, 108. V. Wescott, 324. Beardslee v. Beardslee, 88. Beardsley v. Bank, 15. v! Hilson, 434. V. Knight, 346. Bear's Case, 475. Beatle v. Butler, 217. Beatty v. Clark, 318. V. Kurtz, 363. V. Mason, 462. Beaty v. Bordwell, 342. Beavan v. Speed, 122. V. Went, 388. Beaver Brook Reservoir & Cana! Oo. V. St. Vrain Reservoir & Fish Oo., 370. Becker v. Howard, 494. Becker's Estate, In re, 23. Beckley v. Leffingwell, 287. Beckman v. Davidson, 465. Beckwith v. Rector, etc., 275. Beddoe v. Wadsworth, 456. Bedford v. Backhouse, 225. V. M'Elherron, 150. V. Terhune, 147. Bedgood v. McLain, 491. Beebe v. Estabrook, 481. V. Swartwout, 448. Beecher v. Baldy, 122, 123. Beekman v. Railroad Co., 495. Beeman v. Beeman, 260. V. Cowser, 72. Beers v. Beers, 65. V. St. John, 16. V. Strong, 101. Beeson v. Burton, 55. Beeszard v. Capel, 146. Belden v. Carter, 434. Bell V. Bruhn, 162. V. Denson, 459. V. Ellis' Heirs, 156. V. Evans, 225. V. Fleming's Ex'rs, 223. V. Mayor, etc., 60, 91, 201. V. Railroad Co., 375, 376. V, Scammon, 410. V. Twilight, 57, 59. V. Woodward, 232. Bellamy v. Thornton, 487. Bell Oo. V. Alexander, 172. Bellinger v. White, 127. CASES CITBD. 503 [The figures refer to pages.] Bellows V. Sackett, 142. Belser v. Youngblood, 146. Helton V. Summer, 480. Bemis V. Call, 232. Benedict v. Morse, 163, 16o. Beneseh Y. Clark, 310. 322. Benett v. Costar, 3»4- Benjamin v. Heeney, 13o. Benner v. Evans, 96. Bennet v. Bittle, 139, 141. 474. Bennett v. Bates, 207. T. Bennett, 71. V. Chapin, 395, V. Ctiild, 338. V. Conant, 243. V. Cook, 203. V. Harms, 103. V. Hibbert, 388. V Hunter. 491. V. Keebn, 207. V. Morris, 294. V. Robinson, 156, 177. 1<8. V. Shipley, 192. I. Trustees of M. E. Church, b< V. Waller, 455. Bennock v. Whipple, lb9. Benson v. Corbin, 326. Bent V. Coleman, 21b. V. Weeks, 102. Bente v. Lange, 119. BenUey v. City of f ^^J^^^' ^^ Benton Co. v. Czarlmsky 195^ Bent's Adm'r v. St Vram, 480. Berger t. Hoerner, 19, 23. Berkmeyer v. Kellerman, 2.0. Bemier v. Bernier, 404 Bernstein v. Humes, 209. Berrien v. Conover, 111. Berry v. Berry, 294. V. Dobson, 116. V. Insurance Co., 220. V, N orris, 204. V. Potter, 167. V. Seawall, 452. V. Snyder, 5. V. Wiedman, 268. Bessell v. Landsberg, 161. Besson v. Gribble, S4 Bethlehem v. ^^S;/^^- Bethune v. McDonald, 107. Bevans v. Briscoe, 9, 143. , Bewick v. Fletcher, 13. V. Whitfield, 66. I Bexar Bldg. & Loan Ass'n ▼. New- man, 248. I Bibb V. Hunter. 263. Bickford v. Page, 443. Bickley v. Guest, 321. Biddel v. Brizzolara, 208. Bidwell V. Greeushield, 102.^ I Biederman v. Seymour. 475. Big Black Creek Imp. Co. v. Ivem- merer. 140. Bigelow V. Hoover, 470. V. Hubbard, 445. Biggerstaff v. Marston, 226. Biggs V. Brown, 9. Bigler v. Bank, 19. Bigley v. Jones, 215. Big Mountain Imp. Co.'s Appeal, 3o0. Bilderback v. Boyce, 316. I Billings V. McDermott, 493. V. Marsh, 390. V, Taylor, 64, 88. Billows V. Sackett, 372. Bills V. Bills, 395. Bingham's Appeal, 316 I Binney v. Proprietors 3b». ' Biroher v. Parker, 23,143. Bird V. Higgiusou, 41o. V. Keller, 238. V. Stark, 463. 1 Birmingham v. Rogers, loo. Bishop v. Blair, 71. V. Boyle, 90. V. Howard, 130. Bissell V. Grant, 355, 373. V. Railroad Co.. 4 — Bissing V. Smith, 401. Black V. Curran, Ho. V. Lusk, 124. V. Mining Co., 88. V. Reno, 204. 210. V. Singley, 114. V. Zacharie, 2. , Blackburn v. Traffic Co., l-l- Blackman v. Hardware Co 1-1. Blackmon v. Blackmon, 108. Blackmore V. Boardmau, 13o, 13b. V. Gregg, 341. 4b3. Blackstone Bank V. Davis, 40. 398. Blackwell v. Broughton, 113. 504 OASES CITED. [The figures refer lo pages.] Blades v. Blades, 223. Blagge V. Miles, 31G. Blagrove v. Hancock, 323. Blain v. HaiTison, 95, 106. Blair, Ex parte, 209. V. Carpenter, 240. Blaisdell v. Railroad Co., IGG, 167. Blake v. Broughton, 230. V. Bumbury, 272. V. Dick, 139. V. Hawkins, 316. V. Ranous, 139. Blakeney v. Ferguson, 89. Blakeslee v. Sincepaugh, 4.52. Blauchard v. Blanchard, 290, 312. V. Bowers, 12, 159, V. Bridges, 364. V. Brooks, 440. y. Ellis, 451. V. Moulton, 353. V. Porter, 5. V. Tyler, 428. V. Ware, 218. Blanche v. Bradford, 146. Blaney v. Rice, 424. Blaney's Estate, In re, 110. Blankenpickler v. Anderson's Heirs, 404. Blantin v. Whitaker, 144. Blass V. Terry, 241. Blasson v. Blasson, 290. Blatchford v. Newberi-y, 284. Blatchley v. Osborn. 214. Blauvelt, In re, 24. Blazy V. McLean, 189. Bleecker v. Hennion, 94. V. Smith, 151, 175. Bless V. Jenkins, 149. Blevins v. Smith. 494. Bllgh V. Brent, 25. Blight V. Schenck, 435, 436. Blim V. Wilson, 230. Blinston v. Warburton, 38. Bliss V. .Johnson, 466. T. Misner, 14. Block V. Latham, 146. Blodget V. Brent, 84, 95. Blodgett V. Hildreth, 266. V. Stone, 369. Blodwell V. Edwards, 292. Blomfield v. Eyre, 319. Blood V. Blood, 84, 219, 437. Bloodgood V. Ayres, 37L Bloom V. Welsh, 7. Bloomfleld & R. N. Gaslight Co. t. Calkins, 362. Blough V. Parry, 384 Blove V. Sutton, 318. Blue V. Blue, 116. Blum V. Light, 125. V. Mitchell, 202. Blumberg v. Birch, 241. Blundell v. Catterall, 5. Blunden v. Baugh, 458. Blyth V. Dennett, 162. Board v. Board, 458. V. Wilson, 194. Board of Com'rs of Mahoning Co. v. Young, 172. Board of Education of Normal School Dist. V. Trustees of First Baptist Church of Normal, 176. Board of Education of State of Illi- nois V. Bakewell, 275. Board of Education of Village of Van Wert V. Inhabitants of Village of Van Wert, 178. Board of Sup'rs of Cass Co. t. Cow- gill, 130. Boatman v. Lasley, 355. Boatwright v. Bookman, 374. Bobb V. Wolff, 60. Bodfish V. Bodfish, 353. Bodwell V. Webster, 189. BodweU Granite Co. v. Lane, 181. Bogan V. Mortgage Co., 404. Bogardus v. Trinity Church, 389. Bogert V. Bliss, 230. V. Bogert, 345. V. Striker, 229. Boggs V. Mining Co., 453. Bogk V. Gassert, 190. Bogue V. Williams, 217. Bohm V. Bohm, 265. Bohon V. Bohon, 287. Boland v. St. John's Schools, 351. Boling V. Clark, 111. Bolles V. Duff, 248. V. Munnerlyn, 319. Boiling V. Boiling, 109. V. Carter, 218. V. Mayor, etc., of Petersburg, 178, 282. V. Teel, 344. CASES CITED. 505 [The figures refer to pages.l Bolmanv.Lohman 204. Bolton V. Ballard, 91. V. Myers, 24. Boltz V. Stoltz. 95 Bombaugh v. ^^^^;' ^f^^^^er Co. v Bon Air Coal. Land & Lumoer Parks, 461. Bond V. Coke, 17. Bone V. Tyrrell, 60 Bonifautv. Greenfied,314. Bonner. Petitioner, 34o. V. Peterson, 99, 1^0, 1^ Bonomi v. Backhouse 3G6. Boocock V. Phipard, 188. Boone v. Cbiles. 213, 2iO. Bjoe.rSeSiaUves,.Boone,10. Booraem v. Wells, 31.. Boorum v. Tucker, 110. BootH V. Goodwin 119. V. Insurance Co., ^^>o. V. Meyer, 173. V. Shepherd, 423. V. Starr, 449. V Terrell, 282. Boothby V. Vernon^ 79. Boothe V. Fiest, 18.. Boothroyd V. Engles 416 Boqut V. Coburn. 234 230. Board V. Cudmore, 3.8. Borders v. Hodges. 48k Bordman v. Osborn 145. Borie V. Crissman, 6U Borland v. Dean._400. V. Marshall, to. Borst V. Boyd, 238. V. Corey, 241. V Empie, 351. Bosley V. Wyatt, 475. Bostic T. Young. -22. Boston T. Richardson, 42- Boston & L. R. Corp. v. Salem & \'^''k%\ Corp. V. New York & Boston & P- f^- ^'^'^y- N. E. R. Co., 242. Bostwick V. Leach, 10. V. Williams, 448. Bosworth V. Sturtevant, 420. Bot.sford V. Burr, 268. T. Morehouse, 4^4. Botting V. Martin. 160. Bottomley v. Fairfax, 89. Bottomly V. Spencer, 108. Boughton V. Boughton, 328. ■Rnnklin V. Miller, 396. lounTBrook Mut. Fire Ins. Ass'n t. Nelson, 199. Bouscaren v. Brown, 149. Boutelle v. Bank, 38. Bowditch V. Andrew, 271. il^ Bowen v. Bowen, 174, T. Conner, 351. V Guild, 466. V. Julius, 228. V. Prout, 402. V. Ratcliff, 181, 224. Bowers v. Andrews, 493. V. Johnson, 210. Bowlby V. Thunder, 262. Bowles V. Poore, 68. Bowles' Case, 62. Bowling V. Cook, 220. V. Crook. 152. Bowlsby V. Speer, 371. 3.2. Bowman v. Farmer, 424. V. Faw. 193. V. Sunnuchs, 472. Bowyer's Appeal, 123^ Boxheimer v. Gunn._224. Boyd V. Belmont 44o V. Cudderback. 1-4. V. De La Montagme, 393. V Hunter, 92. V. Slayback, 433 V Woolwine, 3o2, 360. Boyer V. Williams 22 Boyers v. Newbanks,_100. Boykin V. Ancrum, 0._. Boynton v. Pierce, 2oo. V Rees, 213. Bozeman v. Bishop, 57. V Browning, 3»^- Bracken v. Cooper, 341. V. Jones, 463. V. Miller, 213. Brackett v. Goddajd, 8, 9. V. Leighton. S.. Braden v. Cannon, 48. Bradford v. Griffin. 67. V. Randall. 429. V. State, 34. V. Trust Co., 12L 506 CASES CITED. P?he flgiires refer to pages.] Bradish y. Gibbs, 318. Bradley v. Bailey, 9. V. Dike, 445. V. Peixoto, 395. V. Rice, 423. V. Snyder, 236, 246. Bradley's Estate, In re, 60. Bradnpr v. Faulkner, 8. Bradshaw v. Eyre, 375. Brady v. Nagle, 151. Bragg V. Lyon, 345. Brainard v. Cooper, 246, 247. V. Hudson, 216. Bralnerd v. Brainerd, 187. Brakken v. Railroad Co., 362. Bramhall v. Ferris, 41. Bramlett v. Wettin, 489. Branch v. Makeig, 342. Brand v. Brand, 439. V. Rhodes' Adm'r, 60. Brandon v. Brown, 383. V. Dawson, 106, 107. Brandt v. Brandt, 330. V. Mickle, 72. Branham v. Maj'or, 408. Brannock v. Hamilton, 481. Branson v. Yancy, 94. Brant v. Iron Co., 310. V. Vincent, 159, 160. Brantley v. Insurance Co., 432. Brastow v. Ice Co., 6. Bratt V. Bratt, 132. Brattle Square Church v. Grant, 327, 329. Bratton v. Clawson, 14. ^. Massey, 256. f. MitcheU, 71. Brawford v. Wolfe, 454. Braxton v. Coleman, 98. Bray v. Bree, 313. Bream v. Dickerson, 137. Breckenridge v. Ormsby, 384. Breeding v. Davis, 82, 83. Breese v. Bange, 220. Bremer v. Dock Co., 234. Brennan v. Wallace, 121. V. Whitaker, 15, 21. Brent's Case, 255. 298. Brettun v. Fox, 119. Brewer v. Oonnell, 105. V. Hardy, 264, 41L T. Marshall, 441. Brewer v. Staples, 207. V. Wall, 121. Brewster v. Carnes, 226. V. Hill, 150. Brickett v. Spofford, 46a Bridge v. Ward, 396. Bridges v. Linder, 190. V. Pleasants, 275. V. Purcell, 168. Bridgewater v. Bolton, 38. Briggs V. Briggs, 474. V. Hannowald, 245. V. Rice 189. V. Thompson, 217. Brill V. Stiles, 403. Brimmer v. City of Boston, 448. Brinckerhoff v. Lansing, 213. Bringloe v. Goodson, 321. Brinkman v. Jones, 214, 216. Brinkmeyer v. Helbling, 225. Bristol V. Carroll Co., 471. Bristol Hydraulic Co. v. Boyer, 369. Bristow V. Boothby, 326. Brittain v. McKay, 8. Britton's Appeal, 223. Broadbent v. Ramsbotham, 372. Broadway Nat. Bank v. Adams, 396. Broadwell v. MeiTitt, 455. Brock V. Kellock, 74. Brockway v. Wells, 191. Brodbee v. Mayor, etc., of London, 368. Brolasky v. Ferguson, 145. Bronson v. Coffin, 368, 446. Brook, Ex parte, 22. Brooke v. Pearson, 396. Brooke's Appeal, 221. Brookiield v. Williams, 346. Brooks V. Brooks, 61. V. Curtis, 367. V. Everett, 92. V. Galster, 9. V. Hyde, 156. V. McMeekiu, 105. V. Rogers, 143, 152. Brookville & Metamora Hydraulic Oo. V. Butler, 6. Broome v. Davis, 119, 125. Brough V. Higglns, 61. Broughton v. Langley, 253. V. Randall. 85. Brown r. Adams, 96. V. Bank, 200. CASKS CITED. 501 [Tbe figures Brown v. Bates. 336. V. Bo wen, 451. V. Bragg, 134. V. Bronson, 99- V Brown, 269, 427, 467. V. Budd, 193. V Caldwell, 110, 3S-. V. Chadbourne, 6, 3(0. V. Cockerell, 462, 4bo, 470. V. Coon, 124. T. Cram, 183. . V. Dean, 187. T. Dressier, 386. V. Fulkerson, 305. V. Gay, 465. V. Hospital, 48. V. Kayser, 161. V. King. 464. V. Kite, 141. V. Lawrence, 285. V. Lunt, 438. V. McKay, 182^, 204. V. Manter, 437. V. Peck, 173. V. Pbillips, 309. V. Power Co., 19, 23. V. Raindle, 335. V. Ricbards, 87. V. Robins, 305. V. Rogers, 53. V. Rose, 463. V. Rouse, 452. V. Simpson, 219. v. stackhouse, 146. V. Veazie, 491. V. Weaver, 49. V. Welcb, 215. V. Williams, 90. V. Young, 44S. Browne v. Bockover, 0., »- V Potter, 105. Browning v. Harris, 115. Brown's Ti-ust, in re, 319. Brownsword v. Edwards, SOL Bruce v. Bruce, 316. V. Nicbolson, 80. Brudnel's Case, 57. Brummellv.Macpberson.l.o. Brundage v. Association 196. Brunker v. Cummins 14 Brunson v. Henry, 260, 482. Brush V. Brush, 476. V. Ware, 403. refer to pages.] Bryan v. Bradley, 406 V. Knickerbocker, 3J7. V. Wash, 435. Bryant v. Erskine, 181. Brydges v. Duchess of Chandos. 4.6. iBSch'a^'v. Sumner. 339,340 BuchanaJi v. Buchanan. lOJ. V. Curtis, 362. V. Hamilton, 263. V Monroe, 206. i Buchanan's Lessee v. Sheffer. <7. Buck V. Conlogue, 121. ' V, Sanders, 212. V. Squiers, 422. V. Wroten, 72. iBuckeridgev. Ingram 87 ' Buckland v. Butterfield, 18. I Buckler v. Hardy, 284. Buckley v. Duff, 394 V. Superior Court, 6io. Buckner v. Street. 448. Buckworth V. Thirkell, 46, 73, .0, 7.. 300. ,^^ iBudd V. Brooke. 419. Buffumv. Hutchinson, 36. Buford V. McKee 260^ Bugbee. Appeal of, 214. 216. BuUdlng & Loan Ass'n of Dalvota LogaB. 126. IbuUv. Bull 26L V. Pritchard, ^5-3. V Shepard, 185. 1 Bullard V. Briggs. 427. V Harrison, 3o9. Bullock V. Grinstead, 134. V Wilson, 5. iBulwerv. Bulwer, 62. Bunce V. Wolcott, 469 _ Bunhamv. Kidwell. 384. 'Bunker v. Locke, US- V. paquette, 119- Bunn V. Ahl, 392. V. Winthrop, -<'^^- 1 Burba nk v. Fay. 353. V Roots. 20 (. iBurdv. Dandsdale 80. I Burden v. Thayer, 14!4. 508 CASES CITEr [The figures refer to pages.] Burdeno v. Amperse. 387. Burdet v. Hopogood, 283. Burdick v. Jackson, 191- Burge V. Smith, 107, 416. Burgess v. Mawby, 50. V. Muldoon, 81. V. Wheate, 104, 2.'52. Burgher v. Henderson, 122. Burke v. Roper, 27G. V. Valentme, 82. Burkhart v. Bucher, 49. Burleigh v. Clough, 307, 313, 310. V. Coffin, 71. Bum V. Phelps, 141. Burnett v. Burnett, 54. V. HoCfman, 245. V. Pratt, 330. V. Strong, 172. Burnham v. O'Grady, 153. Bums V. Beri-y. 224. V. Bryant, 159. V. Cooper, 155. V. Lynde, 458. V. Thayer, 250. V. Thompson, 339. Burnslde v. Terry, 124. V. Twitchell, 14, 15, 21. Burr V. Stenton, 441. Burrall v. Bender, 91. Burrell v. Burrell. 313. Burris v. Page, 53. Burrough v. Foster, 326. Burroughs v. Saterlee, 371. Burrows v. Gallup, 4G0. V. Hovland, 191, 222. Burt V. Gamble, 182. 231. 240. V. Herron's Ex'rs, 262. V. Hurlburt, 71. T. Sheep Co., IIL V. Wilson, 206. Burton v. Barclay, 14S. V. Baxter, 247. V. Moffitt, 367. V. Perry, 409. Bury V. Pope, 304. Buschman v. Wilson, 153. Busey v. Reese, 410. Bush V. Bradley, 75. V. Cooper, 228. T, Lathrop, 211. V. Marshall, 451. V. Person. 4.50. V. Sherman, 249, 27a Bushby v. Dixon, 480. Bushey v. Santiff, 353, 360. Bush's Appeal, 256, 261. Buss V. Dyer, 352. Butcher v. Butcher, 313. Butler V. Cheatham, 84, 88, 92. V. Fitzgerald. 104, 489. V. Huestis, 296. V. Insurance Co., 268. V. Roys, 343. V. Thomburg, 85. Butler's Estate, In re, 67. Butt V. Gas Co., 364. Buttenuth v. Bridge Co., 6, 472. Butterfleld v. Baker, 155. V. Beall, 72. V. Gilchrist, 370. V. Okie, 193. V. Reed, 357, 396. V. Wicks, 114. Butterman v. Albright, 8. Butterworth v. Crawford. 352. Buttrick v. Ilolden, 214. Buxton V. Inhabitants of Uxbridffe, 48^ 49. Buzlck V. Buzick, 84. Buzzell V. Gallagher, 344. Bybee v. Hageman. 420. Byers v. Byers, 200. V. Engles. 210. Byington v. Fountain, 231. Byrne v. Lowry, 466. Cabeen v. Mulligan, 121. Cadawallader v. Lovece. 434. CadeU v. Palmer. 133, 324. Cadwalader v. Tindall, 14a Cage V. Russel, 151. Cahlll V. Wilson, 118, 121. Cahn V. Hewsey, 18, 66. Cahoon v. Coe, 491. Caiger v. Fee, 353. Caillaret v. Bernard, 94. Cain V. Cain, 110. Caines v. Graxit's Lessee, 269, 333. Cairns v. Colebum, 268. Cake's Appeal, 226. Calborae v. Wright, 149. Calder v. Chapman, 222. CASES CITED. 60*J [The figures refer to pages.] Caldwell v. Carriagrton's Heirs, 269. V. Fulton, 374. V. Jacob, 61. V. Neely, 341. V. Willis, 328. Calhoun v. Curtis, 341. Calkins v. Calkins, 238. V. Munsel, 234. Callahan's Estate, In re, 291. Callan v. McDaniel, 136. Callard v. Callard, 262. Callis V. Laugher, 363. Calumet Iron & Steel Co. v, Lathrop, 21. Calumet & C. C. & D. Co. v. Russell, 438. Calvert v. Aldrich, 342. V. Rice, 64. Calvin's Case, 103. Calvo V. Davies, 207, 208. Calwell V. Warner, 234. Cambreleng v. Graham, 230. Cambridge Valley Bank v. Delano, 214. 216. Camden & A. Land Co. v. Lippen- cott, 470, 472. Cameron v. Railway Co., 340. Camley v. Staufield, 144, Camp V. Cleary, 177, 396. V. Scott, 175. V. Smith, 404. Campau v. Campau, 336. V. Dubois, 4G4. . V. Michell, IGO. Campbell v. Adair, 118, 121. V. Ayers, 118. V. Beaumont, 395. V. Branch, 424. V. Campl>ell, 90, 93. V. Carson, 38. V. Dearborn, 188. V. Ellwanger, 234, 235. V. Freeman, 224. V. Hall, 455. Y. Johnson, 420. V. Knights, 487. V. Kuhn, 384. V. Leach, 319. V. Lewis, 135, 148. V. McClure, 445. V. Mesier, 367. V. Murphy, 111. Campbell v. Packard, 491 V. Potter, 121. V. Prestons, 271. V. Race, 363. V. Sandys, 54. V. Shipley, 464. V. Whitson, 392, 393. Campbell's Case, 87. Canby t. Porter, 80. Canedy v. Marcy, 420. Canfield v. Andrew, 369. V. Ford, 3. Cannon v. Hare, 20, 102. V. McDaniel, 194. v. Villars, 360. Canny v. Andrews, 357. Capehart v. Foster, 17. Capek V. Kropik, 115. Capen v. Peckham, 10, 12. Carbrey v. Willis, 352. Cardross' Settlement, In re, 314, Care v. Keller, 111. Carger v. Fee, 134, 352. Cargill V. Thompson, 136. Carley v. Gitchell, 168. Carll V. Butman, 89. Carlton v. Buckner, 194. V. Jackson, 230. Carmichael v. Carmichael, 111. Carneal v. Banks, 388. Carnegie Nat. Gas. Co. v. Philadelphia Co., 151. Carney v. Mosher, 9, 143. Caroon v. Cooper, 90. Carpenter v. Carpenter, 184. V. Davis, 82. V. Dexter, 438. V. Insurance Co., 197, 198^ V. Jones, 9, 157. V. Koons, 206. V. Marnell, 264. V. Mitchell, 194. V. Walker, 13. v. Westcott, 175. Carper v. Crowl, 110. V. Munger, 209. Carr v. Carr, 64, 188. V. Givens, 75. 79. V. Hobbs, 192. V. Lambert, 373. V. Rising, 121. V. Wallace, 376. 510 CASES CITED. [The flgureH refer to pages.] Carraher v. Bell, 152. Carrel v. Head, 141. Carrier v. Paper Co., 207. Carriger's Estate, lu re, 116. Carrol v. City of East St. Louis, 389. Carroll v. Ballauce, 152, 183. V. Newtou, 17. V. Kenich, 259. V. Safford, 127. Carruthers v. Caruthers, 107, 108. Carson v. Blazer, 5. V. Carson, 313. V. Cochran, 240, 453. V. Fuhs, 78, 296. V. Murray, 100. V. Thompson, 439. Carter v. Burr, 140. V. Chauipiou, 219. V. Conner, 339. V. Corley, 439. V. Dale, 78. V. Goodin, 107. V. Insurance Co., 198. V. McDaniel, 92, 185. V. McMichael, 53. V, Thompson, 403. V. Warne, 149. V. Williams, 70. V. Wingard, 107. CartAvright v. Wise, 268. Caruthers v. Humphrey, 184, 228. V. Williams, 155. Carver v. Smith, .338. Carwardine v. Carwardine, 300. Cary v. Warner, 67. V. White, 224. Casborue v. Scarfe, 78. Case V. Owen, 335. V. Peters. 189. V. Phelps, 394. V. Weber, 374. Case Manuf'g Co. v. Garven, 15. Case of Loringe's Bx'rs, 378. Case of Mines, 7, 39. Cass V. Martin, 91. V. Thompson, 106. Casselman v. Packard, 122. Cassilly v Rhodes, 10. Casterton v. Sutherland, 313. Castle V. Palmer, 123. Castlemain v. Craven, 66. Caswell V. Districh, 154, 155. Cates V. Wadlington, G. Cathcart v. Bowman, 445. Catlm V. Ware, 97, 416. CattUn V. Brown, 324, 325. Caufman v. Sayre, 248. C. Aultman & Co. v. Salinas, 123. Cave V. Cave, 18, 20. V. Holford, 476. Cedar Rapids & St. P. R. Co. v. Stew- art, 431. Central Bank v. Copeland, 80, 438. Central Branch R. Co. v. Fritz, 23. Central Bridge Corp. v. Lowell, 495. Central Trust Co. of New York v. Bridges, 191. V. Kneeland, 185. Central Trust & Safe Deposit Co. v. Cincinnati Grand Hotel Co., 21. Cerf V. Ashley, 245. Chadock v. Cowley, 326. Chadwick v. TroAver. 365. Chaffe v. Mcintosh, 339. Chalfant v. Grant, 117. Chalker v. Dickinson, 5. Challefoux v. Ducharme, 340. Chamberlain v. Bell, 221. V. Hutchinson, 317. V. Lyell, 123. V. Meeder, 228. V. Thompson, 183. Chamberlayne v. Brockett, 329. Chamberlin v. Donahue, 160. Chambers v. Chambers, 289. V. Ross, 145. V. St. Louis, 275, 277. Champlin v. Pendleton, 422. Chancey v. Strong, 71. Chandler v. Cheney, 338. V. Oldham, 143. V. Simmonds, 383. V. Von Roeder, 392. Chapin v. Brown, 359, 363. V. Chapin, 78. V. Harris, 170, 177. V. Hill. 109. V. Shafer. 382. Chaplin v. Chaplin, 50, 78, Sa V. Leroux, 475. V. Sawyer, 120. V. Simmon's Heirs, 94. V. U. S.. GO. CASBS CITED. 611 [The flfi^ures refer to pages.] Chapman v. Chapman, 104, V. Holmes' Ex'rs, 444. V. Pingree, 170. T. Porter, 200. V. Price, 78. V. Scbroeder, 87, 111. Charles v. Andrews, 108. Charles River Bridge v. Warren Bridge, 421. Charless v. Froebel, 149. Chase v. Abbott, 246. V. Bank, 233. V. Box Co., 13. V. Hazelton, 63, 64, 304. V. McDonnell, 154. V. McLellan, 243. V. Peck, 233. V. Van Meter, 105. 232. V. Woodbury, 236. Chasemore v. Richards, 371. Chase's Case, 87, 99. Chatfield v. Wilson. 371. Chauncey v. Arnold, 428. Chauvin v. Wagner, 454, 455. Cheatham v. Jones, 110. Cheeseborough v. Green, 366. Cheever v. Pearson, 159. Chenango Bridge Co. v. Paige, 880. Chenery v. Stevens, 410, 411. Cheney v. Straube, 447. V. Teese, 290. Cherokee Nation v. Georgia, 400. Cherrrngton v. Abney Mil, 364. Cherry v. Arthur, 15. V. Greene, 310. Chesley v. King. 371. Chester v. Breitliug, 437. V. Greer, 213. Chew V. Chew, 80. V. Commissioners, 75, 78, 79. V. Farmers' Bank, 111. V. Hyman, 234. V. Morton, 453. Chicago City Ry. Co. v. People, 379. Chicago Dock Co. v. Kinzie, 100. Chicago Dock & Canal Co. v. Kinzie, 472. Chicago, D. & V. R. Co. v. Fosdick, 248. Chicago, T. & M. C. Ry. Co. v. Titter- ington, 124. Chicago & A. R. Co. v. Keegan, 144. Chicago & C. RoUing-Mill Co, v. Scul- ly, 233. Chicago & G. W. Railroad Land Co. v. Peck, 245. Chicago & N. W. Ry. v. Ft Howard. 15. Chicago & S. E. Ry. Co. v. Perkins. 160. Chichester v. Bicherstaff, 23. Chick V. Willetts, 184. Chickering v. Failes, 461. Chidley v. Churchwardens of West Ham, 16. Child V. Baylie, 49, 327. V. Stair, 422. Childers v. Bumgamer, 75. V. Lee, 156. Childress v. Cutter, 485. Childs v. Childs. 235. V. Clark, 148, 149. V. Railway Co., 64, 342. V. Smith, 101. Chilton V. Corporation of London, 874. Chirac v. Chirac, 388. Chisholm v. Caines, 6. V. Georgia, 31. Chiswell v. Mon-is, 100. Chittenden v. Gossage. 181. Chittock V. Chittock, 107. Chloupek V. Perotka, 454, 463. Choate v. Burnham, 418. Choteau v. Jones, 213. Chouteau v. Railway Co., 105. Chouteau's Ex'r v. Burlando, 240. Christian v. Dripps. 15. Christie v. Gage, 464. Christner v. Brown. 229. Christopher v. Austin, 141. V. Christopher, 98. Christ's Hospital v. Grainger, 829. Christy v. Dyer, 119, 126. V. Pulliam, 315. Chudleigh's Case, 252, 255, 298, 303. Chm'ch V. Brown, 140. V. Bull, 109. V. Church, 106. V. Gilman. 435. Churchill v. Hudson, 80. V. Hulbtrt, 168. Cibel V. HiU's Case, 141. Cincinnati, W. & Z. R. Co. v. Iliff, 436. Cissna v. Haines, 229. 512 CASES CITED. [The figures refer to pages.] Citizens' Bank v. Knapp, 15. Citizens' Nat. Banlv v. Dayton, 247. City Council of Augusta v. Durum, IGS. City of Alton v. Illinois Transp. Co., 421. City of Chicago v. Garrity, 153. V. McGinn, 6. V. Witt, 214. City of Denver v. Soloman, 142. City of Ft. Scott v. Schulenberg, 240. Citj' of London v. Greyme, 65. City of Peoria v. Simpson, 142. City of Quincy v. Attorney General, 174. City of St. Paul v. Chicago, M. & St. P. R. Co., 4G7. City of San Antonio v. French, 158. City of Stockton v. Weber, 171. City of Victoria v. Schott, 471. City Power Co. v. Fergus Falls Water Co., 141. City and County of San Francisco v. Fulde, 467. V. Lawton, 412. Claflin V. Claflin, 396. V. Railroad Co., 352. V. Van Wagoner, 314. Clapp V. Bromagham, 340, 341. V. Ingraham, 320. Clapper v. Kells, 135. Claik V. Allen, 428. V. Baker, 35, 48, 451. V. Banks, 9. V. Bayley, 123. V. Clark, 78, 88. V. Cogge, 3G0. V. Condit, 189. ■ V. Fisher, 445. V. Greenfield, 152. V. Gregory, 246. V. Harvey, 9. V. Henry, 180. V. Holland, 216. V. Jacobs, 194. V. Jones, 211. V. Owens, 57, 58. V. Powers, 420. V. Rainey, 341. V. Smith, 202. V. S-wift, 445. V. Tainter, 315. V. Wheelock, 158. V. White, 379. Clarke v. McClure, 460, 464. V. Saxton, 204. V. White, 223. V. Wright, 394. Clarke's Lessee v. Courtney, 482. Clarkson v. Clarkson, 53. Clary v. Owen, 21. Clavering v. Clavering, 64. Clawson v. Primrose, 364. Clay V. White, 76. Claycomb v. Hunger, 447. Clayton v. Blakey, 132. V. Clayton, 38. V. Earl of Wilton, 394- Clearwater v. Rose, 36. Cleaver v. Burcky, 207. Clemence v. Steere, 20, 63, 64. Clements v. Landrum, 427. Cleminger v. Gas Co., 152. Clepper v. Livergood, 78. Clerk v. Smith, 475. Cleveland v. Martin, 229. Cleveland Ins. Co. v. Reed, 240. Clever's Estate, In re, 7. CUfford V. Clifford, 318. V. Gresinger, 134. Cliffton V. Anderson, 73. Clifton V. Montague, 135. Climie v. Wood, 21. Clinton Nat. Bank v. Manwarring, 209, Clopton V. Bolton, 442. Clough V. Hosford, 156. Clowes V. Dickenson, 237. Clun v. Fisher, 00. Clute V. Fisher, 423. Coakley v. Cliamberlain, 132. V. Perry, 105. Coates V. Cheever, 64, 85, 88. Cobb V. Davenport, 5. V. Lavalle, 145. V. Lucas, 417. V. Trammell, 269. Cobbs V. Coleman, 113. Cobel V. Cobel, 155. Coburn, Ex parte, 166, 350. V. Herrington, 93, 99, 107. V. Stephens, 231. Cocheco Manuf 'g v. Whittier, 421, Cochran v. Cochran, 60. V. Harrow, 452. V. O'Hem, 78. V. Pew, 151. Cochrane v. Tuttle, 163. CASES CITED. 513 [The figures refer to pages.] Cocke's Ex'r v. Philips, 91. Ooclireil V. Curtis, 114. Oockrlll V. Armstrong, 92, 93. V. Dowoey, 8. Coclison V. Cocli, 136. Codman v. Evaus, 3U2, V. Winslow, 25. Cody V. Quarterman, 160. Coe V. Hobby, 409. V. Manufacturing Co., 80. V. Itailway Co., 15. Coffin V. Loring. 181. V. Parker, 236. Coffman v. Coftman, 473. Cofran v. Shepard, 164. Cogel V. Raph, 493. Coggeshall v. Home for Friendless Children, 389. Cogswell V. Cogswell, 60. V. Tibbetts, 103. Cohen v. Kyler, 20. Coker v. Whitlock, 195. Colburn v. Morrill, 141. Colby V. Duncan, 291. V. Osgood, 450. V. Poor, 243. Colchester v. Roberts, 353. Colclough V. Carpelfs, 133. Cole V. Bolard, 188. V. Bradbury, 372. V. Cole, 208. V. Gill, 119. V. Hughes, 367, 441. V. Kimball, 445. V. Lake Co., 36. V. Raymond, 447. V. Sewell, 299. Coleman, In re, 397. V. Beach, 312. V. Coleman, 344, 347. V. Lyman, 443. V. Pickett, 464. V. Satterfield, 72. V. Van Rensstlaer, 181. Coles V. Coles, 91, 95. Cole's Case, 138. CoUamer v. Langdon, 212. Collamore v. Collamore, 53. Collett V. Collett, 173. Collier V. Jenks, 17. V. Pierce, 352. EEAL PROP. — 88 Collins V. Canty, 162. V. CarHsle's Heirs, 26L V. Carman, 109. V. Corson, 267. V. Ewing, 380. V. Hasbrouck, 148. V. Hopkins, 315. V. Riley, 175. V. Warren, 94. Collomb V. Caldwell, 394. Colston V. McVay, 145. Colton V. Colton, 262. Colton V. Smith, 346. Columbia Ins. Co. of Alexandria r. Lawrence, 198. Colvllle V. Parker, 392. Col well V. Carper, 116. Coman v. Thompson, 8. Combs V. Jackson, 31. Comer v. Chamberlain, 74, 82. Commercial Bank v. Cunningham, 181. V. Hiller, 236. V. Weinberg, 182. Commissioners of Burke Co. v. Cata- waba Lumber Co., 370. Commissioners of Canal Fund v. Kempshall, 5. Commissioners of Charitable Dona- tions & Bequests v. De Clifford, 329. Commissiouei's of Homochitto River V. Withers, 6. Commissioners of Knox Co. v. Nichols, 319. Commissioners of Sewers v. Glasse, 374. Commissioners of Sinking Fund v. Walker, 263. Commonwealth v. Canal Co., 495. V. Chapin, 5. V. Dudley, 434. V. Duttield, 320. V. Inhabitants of Newbury, 862. V. Lay, 125. V. Low. 362. V. Rigney, 166. V. Robinson, 247. V. Roxbury, 400, 402. V. Tewksbury, 31, 39. V. Williams' Ex'rs, 312. Compton V. Richards, 363. 614 CASES CITED. [The figures refer to pages.] Oomstock V. Hitt, 207. I V. Michael, 202. ! V. Sharp, 357. V. Smith, 454. Conant v. Little, 96. Concord Manuf'g Ck). y. Robertson, 5. Concord Union Mut. Fire Ins. Co. v. Woodbury, lUD. Conduitt V. Ross, 3G7. Cone V. Insurance Co., 199. Coney v. Sanders, 311. Cougdon V. Morgan, 4G6. Conger v. Duryee, 152. Congham v. King, 137. Congregational Society of Dubuque v. Fleming, 12. Congregational Society of Halifax t. Starli, 37. Conklin v. Foster, 116. Oonlan v. Grace, 430, 433. Conn V. Conn, 341. Connah v. Hale, 146. Connaughton v. Sands, 113. Connecticut Mut. Life Ins. Co. v. Tal- bot, 227. V. Tyler, 208. Connely v. Rue, 246. Conner v. Jones, 162. T. Shepherd, 87. Connery v. Brooke, 358. Connolly v. Hammond, 250. V. Keating, 265. Connor v. Bradley, 151. Conover v. Insurance Co., 198. V. Wright, IIL Conrad v. Mining Co., 16, 19. Conrady v. By waters, 149. Consolidated Coal Co. v. Peers, 149. Consolidated Land & Irrigation Co. v. Hawley, 155. Conway v. Carpenter, 152. V. Starkweather, 159. V. Taylor, 379. Cook V. Babcock, 463. V. Brightly, 377, 378. V. Brown, 434. V. Cook, 101. V. Fisk, 98. V. Foster, 231. V. Gammon, 353. V. Hammond, 31, 280, 284, 306. V. Jones, 149. Cook V. McClure, 470, 472. V. Norton, 163. V. Prindle, 185, 208. V. Transportation Co., 16, 65, 143. V. Webb, 94. V. Whiting, 13. Cooke V. Bremond, 339. V. Dealey, 266. V. Husbands, 256. Cooksey v. Bryan, 265. Cooley V. Dewey, 480. V. Golden, 5, 471. Coolidge V. Wells, 118. Cooper V. Adams, 158. v. Basham, 121. V. Cooper, 114, 338. V. Cotton-Mills Co., 461, 467. V. Franklin, 261. V. Harvey, 21. V. Jackson, 433. V. Johnson, 16, 23. V. Macdouald, 82, 396. V. Merritt, 194. V. Newland, 245. V. Ord, 467. V. Page, 428. V. Smith, 380. V. Whitney, 89. V. Woolfitt, 8. Coor V. Smith, 196. Cope V. Cope, 205. Copeland v. Stephens, 149. Copp V. Swift, 12. Corbett v. Laurens, 61. V. Woodward, 211. Corbin v. Healy, 42, 48. Corbit V. Smith, 383, 384. Corby v. Corby, 57. Cord v. Hirsch, 246. Cordova v. Hood, 216. Core V. Faupell, 466. Corlies' Will, In re, 397. Cornelius v. Den, 174. Cornell v. Lamb, 31, 376. Corning v. Burton, 207. Cornish v. Gest, 345. V. Strutton, 65. Corporation of Birmingham v. Allen, 365. Corporation of London v. Riggs, 360. Corriell v. Ham, 109, 110. Corrlgan v. City of Chicago, 154. CASES CITED. 515 [The figures refer to pages.] Oorrothers v. Jolliffe, 346. Cortelyou v. Vau Brundt, 423. Oortleyeu v. Hathaway, 242. Oorwithe v. Gritliug, 345. Cory V. Schuster, 121. Cosner v. McCrum, 430. Costello V. Edson, 466. Gotlingliam v. Spi-inger, 209. Cottman v. Grace, 275. Cotton V. Burkelman, 317. Couch V. IngersoU, 441. Coudert V. Cohn, 159. Coulter V. Holland, 98. V. Norton, 141. V. Trust Co., 432. Countess of Shrewsbury's Case, 63. Cotmtryman v. Lighthill, 4. County of St Clair v. Lovingston, 470. Cover V. Black, 225. Covert V. Robinson, 49. Cowdrey v. Coit, 448. V. Hitchcock, 114. Cowell V. Daggett, 435. V. Hicks, 297. V. Lumley, 139. V. Springs Co., 40. Cowen V. Rinaldo, 254. Cowlam V. Slack, 374. Cowles V. Balzer, 368. V. Marble, 235. V. Ricketts, 409. Cowling V. Higginson, 361. Cowman v. Hall, 89. Cowx V. Foster, 316. Cox V. Arnold, 471. V. Bent, 158. V. Forrest, 353. V. Freedley, 422. V. Garst. 89, 91. V. Glue, 375. V. Jagger, 95. V. Stafford, 113. V. Walker, 273. V. Wilder, 123. Ooxe V. State, 5. Coyle V. Wilkins. 241. Crabb v. Pratt, 84. Craddock v. Edwards, 114. Crafts V. Crafts, 85. Craig V. Butler, 153. V. Cartwright, 465. Craig V. Dale, 8. V. Leslie, 23, 24. V. Miller, 246. V. Railway Co., 362. V. W^arner, 294. V. Wells, 417. Craige v. Morris, 94. Craige's Appeal, 291. Grain v. McGoon, 228. Cramer v. Hoose, 268. Crane v. BoUes, 24. V. Brigham, 16. V. Caldwell, 193. V. Palmer, 90. V. Turner, 185. V. Waggoner, 117. Cranson v. Cranson, 105. Crary v. Goodman, 465. Crawford v. Edwards, 206. V. Scoville, 385. V. Simon, 227. 239. V. Wearn, 174. Crawl V. Harrington, 89, lOff. Creecy v. Pearce, 90. Creek v. Waterworks Co., 370. Creel v. Kirkham, 154. Cregier, In re, 92. Crerar v. Williams, 301. Cresinger v. Welch, 382. Cresson v. Stout, 19. Crews' Adm'r v. Hatcher, 288, 289. Crlne v. Tifts, 7. Crispen v. Hannavan, 467. Criswell v. Ginimbling. 59. Critchfield v. Remaley, 161. Crittenden v. Johnson, 89. Crocker v. Pierce, 447. V. Society, 175. Crockett v. Crockett, 63, 64. V. Maguire, 223. V. Railway Co., IQS. Crofts V Middleton, 305. Croker v. Trevithin, 395. Crommelin v. Thiess. 147. Cromwell v. Insui-ance Co., 198. Cronkhite v. Cronkhite, 350, 351, 353. Crook V. Hewitt 143. Crooker v. Jewell, 209. Crosby v. Huston, 190. V. Loop, 148. v. Parker, 425. 516 CASES CITED. [The figures refer to pages.] Crosdale v. Lanlgan. IGS. Gross V. Everts, 122, 123. V. Lewis, '6^2, 3(i3. V. Taylor, 4U-1. V. Upson, 159. V. Weare, 125. Crouch V. Puryear, 64. Crow V. Couaut, 229. V. Wolbert, 359. Crowell V. Currier, 20S. V. Woodbury, 346. Croxall V. Sbererd. 256, 288, 291, 297. Crozler v. Bray, 285. Cruger v. Dougherty, 491. V. Jones, 273. V. McLaury. 378. Cnimlish v. Railroad Co., 227. Cubbius V. Ayres, 19. Cubit t V. Porter, 3U6. Cullen V. Trust Co., 196, 204. Cullum V. Erwin, 210. Culver V. Harper, 90. Cummings v. Glass, 434. V. Wyman, 340, 4G3. Cumston v. Bartlett, 316. Cunningham v. Brumback, 459. V. Freeborn, 427. V. Holton, 163. V. Moody, 78. V. Morrell, 441. V. Railroad Co., 250. V. Shannon. 110. y. Snow, 409. T. Webb, 426. Cupples V. Galligan, 230. Curllng'3 Adm'rs v. Curling's Heirs, 277. Curran v. Smith, 15. Currle v. Donald, 432. Currier v. Barker, 161. V. Earl, 156, 158 V. Gale. 228. Curry v. Bott, 80. Curtis V. Buckley, 191. V. Oockrell, 114. V. Galvin, 158. V. Gardner, 350. V. Hobart, 9<5, 99. v. Lukln, 331. V. Lyman, 222. V. Mundy, 214. V. Railroad Co., 372. Curtis V. Root, 225. Curtiss v. White, 137. Gushing v. Blake, 78, 258, 259. V. Hurd, 209. Cuthbertson v. Irving, 450. Cutler V. Clemenston, 210, 244. V. James, 223. V. Smith, 166. Cutter V. Cambridge, 462. CuttJS V. Com., 34. V. Manufacturing Co., 185. D Daggett V. Rankin, 191, Dail V. Moore, 438. Dailey v. Abbott, 200. V. Kastell, 216. Daily v. State, 362. Dalby v. Hirst, 140. Dale's Case, 57. Daley v. Quick, 142. Dalton V. A_ngus, 353. V. Smith, 247. V. Webb, 125. Daly V. Willis, 107. Damm v. Damm, 236. Dan V. Lougstreet, 344. Dana v. Bank, 263. Daniel Bell, The, 6. Daniel v. Coker, 200, 201, V. North, 353. V. Wilson, 20G. Daniels v. Bond, 157. V. Brown, 154. V. Daniels, 343. V. Eldredge, 326. V. Pond, 17, 18. V. Richardson, 71. Danville Seminary v. Mott, 845. Danziger v. Silberthau, 60. Darby's Lessee v. Mayer, 479. Darcus v. Crump, 301. Dare v. Heathcote, 353. Dareus v. Crump, 284. Darlington v. Darlington, 24. v. Painter, 309. Darst V. IMurphy, 188. Dart V. Dart, 415. Dashiel v. Collier, 97. Dates V. Winstanley, 237. CASES CITED. 617 P'he figures refer to pages.] Datesman's Appeal. 61. Daughaday v. Paine, 193. Dausch V. Crane, 402, 469. Davenport v. Alston, 120. V. Farrar, 89. V. Kirkland, 24, 327. V. Lampson, 361. V. Reg., 174. V. Shants, 15, 21. Davidson v. Heydom, 334. V. Manufacturing Co., 143. V. Young, 453. Davie V. Stevens, 38. Davles, Ex parte, 327. V. Speed, 299. Davies' Trusts, In re, 317. Daviess v. Myers, 60. Davis V. Andrews. 121. V. Bartliolomew, 93. V. Bean, 202. V. Brandon, 429. V. Brocklebanli, 9. V, Buffum, 22. V. Clarli, 64. V Coburn, 275. V. Davis, 100, 433. V. Dendy, 202. v. Dickson, 303. V. Emery, 14. V. Eyton, 9. V. Gilliam, 63, 64, 72. V. Givens, 341. V. Hayden, 415. V. Hess, 425. V. Holmes, 248. T. Kelley, 121. V. Kirk, 475. V. Logan, 93. V. McArthur, 467. V. Mason, 75, 76, 77. V. Payne's Adm'r, 146. V. Pierce, 231. T. Power Co., 142. V. Spaulding, 371. V. State, 125. V. Stonestreet, 190. V. Thompson, 9, 157. V. Townsend, 67. V. Walker, 101. V. Wetherell, 91. Davis* Adm'r v. Smith, 158* Davis Sewing-Mach. Co. v. Barnard, 385. Davison v. Stanley, 409. V. Whittlesby, 95. Dawkins v. Penryhn, 395. Dawley v. Ayers, 113, 121. Dawson v. Clarke, 267. V. Danbuiy Bank, 217, V. Drake, 200. V. Parsons, 93. Day V. Adams, 439. V. Clark, 213. V. Cochran, 74-78. V Watson, 141. Dayton v. Corser, 104. V. Dayton, 245. V. Newman, 433. V. Vandoozer, 8. Deacons of Cong. Church In Auburn V. Walker, 421. Dean v. Long, 216. V. McLean, 1(>6. V. ^lumford, 330. V. Shelly, 440. Deane v. Hutchinson, 19. Deans v. Pate, 105. Dearing v. Thomas, 120. Deaton v. Taylor, 152. Deavitt v. Judevine, 237. Debow V. Colfax, 9, 62. Dech's Appeal, 342. Decker v. Livingston, 71, 343. De Cordova v. Hood, 193. Deere v. Chapman, 116. Deerfield v. Railroad Co., 362. Deering v. Kerfoot's Ex'r, 93. V. Tucker, 33. Deering & Co. v. Beard, 121. De France v. Johnson, 84. Defi-aunce v. Brooks, 37. Degory v. Roe, 436. Degraffenreid v. Scruggs, 13. De Grey v. Richardson, 76, 79. De Haro v. U. S., 167. Dehoney v. Bell, 93. Dei V. Habel, 114. Dejarnatte v. Allen, 62, 72. De Lancey v. Piepgras, 459. V. Steams, 427. Delaney v. Fox, 144, 145. Delano v. Montague, 164;. 618 CASES CITED. [The figures refer to pages.] Delaunay v. Burnett, 404. Delaware, L. & W. R. Co. v. Sander- son, 4. Demarest v. Willard, 135, 139. Demby v. Parse, 20. Demill v. Reid. 287, 289. Deming v. Bullitt, 430. V. Comings, 243. De Mott V. Hiigerman, 154. V. Manufacturing Co., 204. Den V. Adams, 104. V. Cooper, 273. V. Cox, 48. V. Demarest, 75. V. Drake, 161. V. Dubois, 49. V. Fogg, 48. V. Hanee, 301. V. Howell, 158. V. Huuipiiries, 9, 159. V. Hyatt, 49. V. Johnson, 106. V. Jones, 485. V. Kinney, 64. V. Lake, 48. V. Post, 141. V. Railroad Co., 176. V. Sauls, 81. V. Troutman, 272. V. Wanett, 76. V. Ward, 81. Dendy v. Nicholl, 175. Denfield, Petitioner, 173. Denn v. Roake, 316. Dennett v. Codman, 234. V. Dennett, 282, 294. V. Hopkinson, 8. V. Pass, 377. Dennis v. McCagg, 271. V. Wilson, 354, 418. Denton v. Nanny, 89, 90, 235. Denton's Guardians v. Denton's Ex'rs, 80. Denu V. Cornell, 454. Denver, M. & A. Ry. Co. v. Lockwood, 420. Department of Public Parks, In re, 3. De Puy V. Strong, 343. Derby v. Derby, 277. Derrick v. Luddy, 144. Derry Bank v. Webster, 434. De Rush V. Brown, 89. De Ruyter v. St. Peter's Church, 246. Deshler v. Beery, 110. Desilver's Estate, In re, 31. Des Moines & Ft. D. 11. Co. v. Lynd, 451. Desnoyer v. Jordan, 70. Despard v. Walbridge, 144. Detmold, In re, 396. Detroit Sav. Bank v. Trusdail, 204. Detroit & B. Plank-Road Co. v. De- troit S. Ry. Co., 167. De Uprey v. De Uprey, 345. De Veaux v. Fosbender, 223. Devereux v. McMahon, 430. Devin v. Hendershott, 272. V. Himer, 428. Devinney v. Reynolds, 432. Dew V. Kuehn, 57. Dewal V. Becker, 358. Dewey v. Lambier, 343. V. Moyer, 265. V. Williams, 176. Dewltt V. Eldred, 51. V. Harvey, 355. V. Pierson, 141. V. San Francisco, 333, 334. De Wolf V. Johnson, 207. V. Murphy, 90. Dexter v. Hall, 431. V. Harris, 222. V. Manley, 138. Dey V. Dunham, 187, 214. V. Greenebaum, 149. D'Eyncourt v. Gregory, 18, 20. Deyo V. Bleakley, 134. Diamond v. Turner, 489. Dick V. Doughten, 105. V. Insurance Co., 199. V. Moon, 204. Dickenson v. Wright, 394. Dickerson v. Colgrove, 452. V. Cuthburt, 127. Dickey v. Lyon, 217. V. M'Cullough, 175. V. Thompson, 237. Dickinson v. Hoomes' Adm'r, 449. Dickson v. Desire's Adm'r, 443. Dietrick v. Noel, 465. Dikes v. Miller, 409. Dillahunty v. Railway Co., 447. Dillaye v. Greenough, 266. Dillard v. Dillard's Ex'rs, 387. CASES CITED. 619 [The figures refer to pages.] Dlllman v. Bank, 120. Doe V. Cole, 305, 407. Dillon V. Dillon, 54. V. Considine, 283, ?S5, 288, 292 V. Reilly, 328. 293. Dilworth v. Gusky, 38. V. Cooper, 287, 297. Dinehart v. Wilson, 154. V. Courtnay, 409. Dingley v. Dingley, 288. V. Cox, 156. Dinwiddie v. Smith, 434. V. Craig, 302. Dircks v. Brant, 9. V. Craigen, 49. Dlsher v. Disher, 60, 64. V. Crick, 102. Diver V. Diver, 338. V. Day, 133. Dixon V. Buell, 147. V. Dorvell, 287. V. Clow, 142. V. Dunbar, 162. V. Dixon, 194. V. Earl of Burlington, 65^ V. Hill, 215. V. Eyre. 302. V. NiccoUs, 148, 154, 155. V. Gatacre, 294. V. Stewart, 144. V, Glover, 395. D. M. Osborne & Co. v. Schoonmaker, V. Grady, 57. 121. v. Gregory, 464. Doane v. Badger, 356. V. Harter, 39. V. Doane, 116. V. Hawke, 396. Dobbin v. Rex, 346. V. Hazell, 161. Dobson's Adm'r v. Butler'a Adm'r, V. Howell, 285, 294, 301. 114. V. Hull, 163, 464, 468. Dobson's Estate, 24. V. Johnson, 152. Dockham v. Parker, 155. V. Jones, 144, 175, 317, 456: Docktermann v. Elder, 93. V. Knight, 433. Dodd v. Acklom, 409. V. Ladd, 318. V. Adams, 394. V. Lewis, 68. V. Burchell, 360. V. Luxton, 68. V. Holme, 365. V. M'Kaeg, 158. y. Witt, 422. V. McLoskey, 19a Dodge V. Davis, 66, 342. V. Manning, 392. V. Evans, 192. V. Meux, 152. V. Williams, 24. ■ V. Miller, 152, 156. Dodson V. Hay, 78. V. Moore, 289. Dodson's Appeal, 120. V. jNIoi-phett, 162. Doe V. Abey, 333. V. Oliver, 451. V. Allen, 38, 152. V. Palmer, 162. V. Allsop, 222. V. Passingham, 25ft. V. Amey, 156. V. Patten, 38. V, Barnard, 467. V. Pearson, 395. V. Bateman, 148. V. Peck, 135. V. Bell, 132. V. Perryn, 288. V. Benjamin, 132. V. Poole, 409. V. Bernard, 94. V. Porter, 160. V. Bliss, 175. V. Provoost, 288. V. Britain, 322. V. Reed, 223, 408. V. Brown, 467. V. Rees, 144. 152. V. Carter, 467. V. Reynolds, 145. V. Challis, 323. V. Richards, 3a V. Chamberlaine, 156. V. Rles, 132. V. Clarke, 290. V. Roach, 285. 620 CASES CITED. [The figures refer *o pages.] Doe V. Robertson, 383. V. Kobiusuii, G8. T. Roe, 74, 300, 470. V. Rushaiu, 3'J3. V, Seudamore, 79, SOL V. Seatou, 137. V. Selby. 285. V. SUirrow, 456. V. Smaridge, 159. V. Smeddle, 47. V. Smith, 102. V. Stratton, 132. V, Timins, 475. V. Tuiiuell, 184. V. Watts, 101. T. Webb, 287. V. Wells. 144. V. Williams, 102. V. W^orsley, 287. Doebler's Appeal, 40. Doed V. Whichelo. 485. Doescher v. Doescher, 181. Dold V. Geiger's Adm'r, 71. Dolde V. Vodicka, 421. Dolittle V. Eddy, 100. Dolph V. White, 137. Dommett v. Bedford, 396. Donahue's Estate, In re, 41, 479. Donald v. Elliott, 66, 143. Donalds v. Plumb, 273. Dondero v. Vansickle, 346. Dougrey v. Topping, 110. Donlin v. Bradley, 238. Donnelly v. Donnelly's Heirs, 84. V. Simonton, 229. Douohue V. Chase, 200. V. MeNichol, 171. Donovan v. Donovan, 193. Dooley v. Crist, 10. V. Potter, 202. Doollttle V. Tice, 459. Doremus v. Doremus, 107. Doren v. Gillnm, 284. Dorkray v. Noble, 230, 23L Dorr V. Dudderar, 195. Dorrel v. Andrews, 141. Dorsett v. Gray, 143. Dorsey v. Hall, 184. V. Smith, 60. Doswell V. De I.a Ijanza, 467. Doton V. Russell, 228. Doty V. Hendrix, 109. V. TeUer, 53. Douglas V. Coonley, 357, V. West, 435. Douglass V. Cline, 242. V. Dickson, 85. V. Durin, 212. V. McCrackin, 218. V. McKeever, 493. V. Wells, 208. V. Wiggins, 65. Doupe V. Gerrin, 139. Dow V. Doyle, 477. V. W^hitney, 223. Dowd V. Tucker, 271. Dowling V. Hemings, 368. Downard v. GrofC, 10, 196. Downer v. Miller, 204. Downer's Adm'rs v. Smith, 444. Downes v. Long, 288. Downing v. Marshall, 478. V. jNlayes, 400. Downs V. Allen, 95. Doyle T. Coburn, 114, 122. V. Lord, 364. V. Mellen, 195. V. Mullady, 51. V. Railway Co., 139. Doyley v. Attorney General, 314. D'Oyly V. Capp, 182. Dozier v. Gregory, 05. v. Mitchell, 201. Drake v. Drake, 313. V. Lacoe. 149, 151. V. Moore, 117. V. Paige, 185. V. Root, 119. V. W^ells, 349, 407. Drane v. Gregory's Heirs, 144. Draper v. Di-aper, 180. V. Morris, 110. Drda v. Schmidt, 148. Dreutzer v. Bell, 393. Drew V. Swift, 422. Driscoll V. Marshall, 166. Driver v. Edgar, 284. Drost V. Hall, 99. DroPte V. Hall, 98. Drown v. Smith, 63, 64. Druid Park Heights Co. of Baltimor* City V. Oettlnger, 315, CASES CITED. 521 [The figures refer to pages.] Drury v. Bachelder, 121. V. Drury, 1U7. V. Foster, 428. V. Kent, 375. Drybutter v. Bartholomew, 25. Dubois V. Beaver, 4. V. Campau, 34L V. Kelly, 17, 22. V. Ray, 324. Du Bois V. Kay, 324. Dubs V. Dubs, 78. Dubuque v. Conian, 461. Dubuque Nat. Bauk v. Weed, 186. Dubuque & P. R. Co. v. Litchfield, 401. Duclaud V. Rousseau. 184. Ducote V. Rachal, 12u. Dudden v. Guardians of Poor of the Glutton Union. 371.. Dudley v. Bosworth, 268. V. Easton, 104. V. Foote, 14. V. Warde, 20. Duer V. Boyd, 49. Duffy V. Duffy, 109. Dugdale, In re, 395. Dugger V. Dugger. 78. Duinneen v. Rich, 350. Duke V. Brandt, 106. V. Bulme, 192. V. Compton. 148. Duke of Cumberland v. Codrington, 205. Duke of Devonshiire v. Eglin, 168. Duke of Norfolk's Case, 32G. Duke of Somerset v. Fogwell, 374, 415. Dulanty v. Pynchon. 122. Dumpor's Case, 175. Dunagan v. Webster, 125. Duncan v. City of Terre Haute, 105. V. Dick, 83. V. Drury, 231. y. Forrer, 343. V. Hodges. 428. V. Miller, 181. V. Rodecker, 357. V. Sylvester. 344, 345. Duncklee v. Webber, 138. Dungannon v. Smith. 324. Dimham v. Kirkpatriok, 7. v. Provision Co., 182. Dunklee v. Adams. 176. Dunklee v. Railroad Co., 352, 445. Dunlap V. Stetson, 423. Dunman v. Railway Co., 22. Dunn V. Flood, 327. V. Games, 417. V. Robbins, 135. Dunn y. Sharpe, 182, Dunn V. Zwilling, 263. Dunning v. Bank, 2u9. Dunphy y. Goodlander, 150. Dunscomb v. Dunscomb, 78. Dunseth y. Bank, 97. Dunton v. McCook, 187, 468. V. Woodbury, 121. Dunwoodie v. Reed, 302. Durando v. Durando, 91, 92. Durant v. Muller, 53. Durel y. Boisblanc, 364. Dui-ette y. Briggs, 193. Durfee y. Joslyn, 487. Durham v. Angler, 111. Durkee v. Felton. 102. Dussaume v. Burnett, 437. Dustin V. Cowdry, 165. v. Steele, 107. Dutton V. Ives, 211, 232. y. McReynoIds. 225. y. Warschauer, 184. Duty v. Gi-aham, 240. Duval y. Becker, 195. Dwight y. Eastman. 289. D'Wolf V. Gardner. 322. Dwyre v. Speer. 420. Dye y. Mann, 123, 240. Dyer v. Bank. 494. y. Clark. 93, 340. y. Sanford, 1<">7, 357. Dyer's Appeal, 2(>2. Dyett y. Pendleton. 138. Dyke v. Rendall. I(t8. Dyson y. Sheley, 119. E Eager v. Furnlvall. 75. Eagle V. Emmet. 99. v. Swayze, 139. Eagle Fire Ins. Co. v. Cammet, 246. Eales V. Drake, 317. Earl V. De Hart. SCS, 371. Earle v. Fiske, 224, 522 CASES CITED. [The figures refer to pages.] Earle's Adm'rs v. Earle, 435. Earl of Buckinghamshire v. Drury, 107. Earnhart v. Earnhart, 297. Eastman v. Batchelder, 181. Easton v. Banli, 250. East Tennessee Iron & Ck>al CJo. v. Wlggin, 457, 4G1. Eaton V. Eaton, 384. V. Simonds, 91, 202. V. Straw, 308. V. Winnie, 1G6. Eberlein v. Abel, 1G2. Ebert v. Wood, 344. Eberts v. Fisher, 344. Ecclesiastical Com'rs v. Kino, 364. V. O'Connor, 141. Echols V. Cheney, 432. Eckford v. Berry, 189. Eckman v. Eckman, 410. V. Soott, 121. Eddy V. St. Mars, 472. Edesheimer v. Quackenbush, 188. Edgar v. Jewell, 154. Edgerton v. Jones, 438. V. McMullan, 357. Edgerton v. Page, 141. V. Young, 231. Edmands v. Insurance Co., 198. Edminster v. Hlggins, 192. Edmondson v. Welsh, 85. Edrington v. Harper, 71. EdseU V. Buchanan, 238. Edson V. Munsell, 468. Edwards v. Banksmith, 218. V. Bibb, 86, 88. V. Hammond, 171. V. Thompson, 217. V. Trumbull, 192. Edwardsville R. Co. v. Sawyer, 36. Egbert v. Egbert, 114. Ege V. Medlar, 78. V. Medlay, 77. Egerton v. Brownlow, 299, 300. V. Massey, 294. Egerton's Case, 262. Eggert V. Beyer, 226. Eggleston v. Bradford, 420. Ehle V. Brown, 217, 225. Ehrisman v. Sener, 59. Eichengreen v. Appel, 163. Ekin V. MeCracken, 384. Elam V. Parkhill, 20, 61. Eldredge v. Torrestal, 91. Eldridge v. Parish, 465. l!:ilicott V. Mosier, 98, 100. V. Pearl, 459, 462. V. Welch, 90. Elliot v. Carter, 474. V. Railway Co., 369. V. Smith, 61, 144, 145, 304. ElUott V. Elliott, 327, 328. V. Parker, 493. V. Pearsoll, 51. V. Pray, 142. V. Sleeper, 416. Ellis V. Alford, 38a. V, Dittey, 75. V. Drake, 243. V. Leek, 248. V. Page, 475. V. Paige, 150, 157. V. White, 113. Ellison V. Daniels, 196. Ellsworth V. Cook, 75. V. Lockwood, 203. V. Nelson, 493. V. Railroad Co., 428. Elmendorf v. Lockwood, 110. Elmer v. Loper, 202. Elmore v. Elmore, 119. Elston V. Jasper, 131. Elwes V. Maw, 17, 20. Elwood V. Klock, 386. Ely V. Dix, 322. V. Ely, 199, 229. V, Scofield, 226. V. Wilcox, 217, 220, 222. Elyton Land Co. v. Denny, 111. V. South & North Alabama R. Oo. 171. Emans v. Turnbull, 470, 471. Embrey v. Owen, 369, 370. Emerson v. Atwater, 187. V. Cutler, 336. V. Mooney, 351. V. Proprietors of Land, 448. Emerson's Homestead, In re, 116. Emery v. Chase, 264. V. Darling, 489. V. Fowler, '425. V. Van Syckcl, 41. Emmons v. Scudder, 164, Emson v. Polhemus, 344. Engel V. Ayer, 36. CASES CirED. 523 [The figures refer to pages.] Engle V. Hall, 230. V. White, 489. Bngleman Transp. Oo. v. Longwell, 200. English V. Young, 408. Ennor v. Thompson, 188. Ensminger v. People, 5, 370. Enyard v. Nevins, 346. Episcopal City Mission v. Appleton, 170. Equitable Trust Co. v. Christ, 12. Erb V. Brown, 358. Erickson v. Willard, 261. Erskine v. Davis, 417. Ervln V. Morris, 456. Erwin v. Olmsted, 340. Eschmann v. Alt, 246. Espley V. Wilkes, 361. Estabrook v. Hapgood, 60. V. Smith, 445, 446. Ettlinger v. Carpet Co., 245. Eulrich v. Richter, 369, 37L Evans v. Brady, 36. V. Caiman, 118. V. Evans, 77, 88. V. Horan, 384. V. Iglehart, 9. V. Kimball, 231. V. Kingsberry, 23, 24. V. Lobdale, 80, 83. V. ^IcKanua, 153. V. Walker, 323. Evelyn v. Evelyn, 205. Everly v. Harrison, 270. Eversole v. Early, 447. Everts v. Agnes, 215, 436. Ewer V. Hobbs, 183. Ewing V. Burnet, 460. V. Elcorn, 459. V. Shannahan, 36, 37. Ewing's Lessee v. Burnet, 462. Excelsior Fire Ins. Co. v. Royal Ins. Co., 199. Exton V. Scott, 433. Eyrick v. Hetrick, 396. Eyster v. Hatheway, 126. P Eager v. Campbell, 494. Fairbank v. Cudworth, 195. Fairchild v. Chastelleux, 7L V. Chaustelleux, 71. V. Fairchild. 340. v. Marshall, 109. Faivre v. Daley, 122. Falhers v. Corbret, 378. Fallass v. Pierce, 213. Falls V. Wright, 101. Falls Manuf'g Co. v. Oconto River Imp. Co., 6. Falls of Neuse Manuf'g Co. v. Brooks, 461. Faloon v. Simshauser, 470. Fanning v. Willcox, 467. Farewell v. Dickenson, 378. Farinholt v. Luckhard, 126. Farley v. Craig, 377. V. Parker, 384. Farmer v. Farmer, 384, V. Simpson, 125. Farmers' Loan & Trust Co. v. Grape Creek Coal Co., 241. V. Hendrickson, 14, 16. V. St. Joseph & D. C. R. Co., 14. Farmers' Nat Bank v. Fletcher, 211. Farmers' & Manufacturers' Bank v. Haight, 429. Farmers' & Mechanics' Bank v. Greg- ory, 338. Farmers' & Merchants' Nat. Bank v. Wallace, 338. Farncombe's Trusts, In re, 312. Farnum v. Metcalf, 234. V. Piatt, 361. Farrar v. Bridges, 433. V. Chauffetete, 12, 19. V. Heinrich, 457, 458, 465. V. Stackpole, 14. Farrington v. Barr, 266. Farris v. Farris, 269. V. Houston, 200. Farrow's Heirs v. Edmundson, 158. Farwell v. Antis, 237. Fash V. Blake, 428. Fassett v. Smith, 214. Faulkner v. Wynford, 313. Faulkner's Adm'x v. Brockenbrough, 184. Fauntleroy's Heirs v. Dunn, 408. Faure v. Winans, 199. Fay v. Brewer, 05. T. Muzzey, 17. 524 CASES CITED. [The figures refer to pages.] Fay V. Taft, 255. V. Valentine, 213. Faylor v, Brice, 151. Featlierstoubaugb v. Fenwlck, 270. Feger v. Keefer, 490. Felcher v. McMillan, 16. Feldes v. Duncan, 121. Feigner v. Hooper, 255. Feliz V. Fellz, 341. Felton V. Billups, 484. V. Le Breton, 250. V. West, 241. Fennell v. Guffiey, 149. Fentiman v. Smith. 168. Fenton v. Circuit Judge, 345. V. Miller. 335. V. Moutgomery, 143. V. Reed. 84. Fergus v. Wilmarth, 198. Ferguson v. Glassford, 227, 230. V. Kingsland, 437. V. Kumler, 122. V. Thoiiiii.^on. 38. V. Tweedy, 79. Ferrall v. Kent, 154. Ferrel v. Woodward, 380. Ferrier v. Jay, 316. Ferris v. Coover, 491. V. Ferris, l(i9. V. Quinby, 15. Ferry v. Buruell, 95. Festing v. Allen, 293. Fetrow v. Merriwether, 410. Fetters v. Humphreys, 354. Fidelity Insurance. Trust &. Safe-De- posit Co. V. Dietz, 290. Fidler v. Lash. 317. Fiedler v. Darrin, 188. Field V. Barling. 3. 364. V. Driving Co., 370. V. Herrick, 131. V. Howell. 133. V. Mark. 359. Fields V. Austin, 115. V. Bush. 59. V. Watson. 297. Filbert v. Hoff. 341. Fillebrowu v. Hoar. 140. Final v. Backus, 438. Finch V. Turner, 489. Flndlay v. Smith, 63. Finkelsteln v. Herson, 161. Flnlay v. King, 172. V. Mitchell, 172. Flnley v. Hogan, 461. V. Simpson, 378, 432. Firestone v. Firestone, 105. First Nat. Bank v. Andrews, 210. V. Bruce, 125. V. Caldwell, 192. V. Essex, 232. V. Hanna, 487. V. Salem Capital Flour-Mills Co., 194. V. Security Bank, 441. Fischer v. Silkmaun, 468. Fish V. Capwell, 167. V. French, 211. V. Glover, 208. Flshback v. Lane, 123. Fisbburne v. Engledove, 145. Fisher v. Cornell, 121. V. Deering. 148. V. Dixon. 20. v. Edington, 294. V. Fields, 261. 262. V. Hall. 433, 435. V. Lighthall, 139. V. M limine, 195. V. Rochester, 423. V. Saffer, 11. v. Smith, 42-2. V. Strickler, 410. V. Taylor, 396. Fisk V. Eastman, 92. Fitch V. Baldwin, 444, 453. V. McDowell, 211. V. Pinckard. 209. V. Rawling, 354. V. Stallings, 202. Fitzgerald v. Anderson, 23. V. Llbby, 223. Fitzhugh V. Croghan, 444, V. Foote, 96. V. Smith, 191. Fladnng v. Rose, 337. Flagg v. Bean, 80, 416. V. Eames, 419. V. Flagg, 197. V. Geltmacher, 207. V. Mann, 217. y. Munn, 190. CASES CITED 625 [The figures refer to pages.] Flanagan v Young, 438. Flanders v. Davis, 385. V. Lamphear, ISl, 197. Flannagan v. Philadelphia, 6, Fleet V. Doiland, t>0. V. Hegeman, 5. Fleetwood v. Lord, 113. Fleischman v. Toplitz. 153. Fleming v. Griswold, 4(39. V. Townsend, 3'J3. Flentham v. Steward, 241. Fletcher v. Ashburner, 23, 24. V. Bank, 125. V. Boom Co., 423. V. Carpenter, 210. V. Gary, 243. V. Fletcher, 48. V. Holmes, 184. V. Peck, 399. Flickinger v. Shaw, 1G7. Fliess V. Buckley, 209. Flood V. Flood, 164. Florida S. R. Co. v. Loring, 462. Floumoy v. Flournoy, 72. Flower v. Blwood, 229. y. Peck, 175. Flowers v. Flowers, 106. Fluke V. Fluke, 23. Flynn v, Flynn, 428. Fogarty v. Stack, 300. Foggv. Fogg, 120. Folk V. Varn, 4344. FoUendore v. Thomas, 360. FoUett V. Grant, 443. Folsom V. Carli. 123. Folts V. Huntley, 140, 377 Foltz V. Huntley, 377. Fonda v. Sage, 176. Fontaine v. Savings Inst., 85. Foot V. Dickinson. 304. V. New Haven & Northampton 166. Foote V. City of Cincinnati, 153. V. Colvin. 270. V. Insurance Co., 198. Forbes v. Balenseifer, 850. V. Dunham. 339. v. Smith. 78. Force v. Dutcher, 432. Ford V. Cobb, 13. T. Erskine, 101. V. Ford, 110, 301, 474. Ford V. Gamer's Adm'r, 32. V. Gregory's Heirs, 9, 428. V. Harris, 357, 359. V. Irwin, 188. V. Johnson, 47. V. Knapp, 345. V. Marcall, 217. Fore V. Fore, 113, 114. Forsythe v. Ballance, 403. v. Price, 8. Fort V. Allen, 453. Forth V. Chapman, 326. V. Duke of Norfolk, 274. Ft. Plain Bridge Co. v. Smith, 363, 379, 380. Fosdick V. Fosdick, 325. V. Gooding. 98. Foss V. Crisp, 81. Foster v. Browning, 350. v. Cai-son, 220. V. Dwinel, 89. v. Fowler, 379. V. Hickox, 247. V. Hilliard, 60. V. Joice, 36. V. Mansfield, 434, 436. V. Marshall, 73, 75, 80, 458. V. Robinson, 9. T. Van Reed, 199. V. Wright, 471. Foster's Appeal. 226. Fothergil v. Fothergil, 318. Foulke V. Bond, 465. Fowler v. Bott, 140. V. Fowler, 342. V. Poling, 448. V. Shearer, 106, 432. Fowley v. Palmer, 199. Fox V. B ossom, 237. V. Hinton, 462. Co, V. Phelps, 474. Fox's Case, 148. Frafton v. Hawes, 427. Francestown v. Deering, 268. Francis v. Porter, 184, 240. V. Wells, 192. Francis' Appeal, 359. Frank v. Hicks, 185, 191. Frankenthal v. Mayer, 195. Franklin v. Osgood. 315. V. Talmadge, 417. Franklin Ins. Co. v. Cousens, 359. CASES CITEO. [The figures rofer to pages.] Fraser v. Trustees, 24. Fratcher v. Smith, 145. Frazer v. Hightower, 78. Frazier v. Caruthers, 152. Frederick's Appeal, 473. Free v. Beatley, 93. V, Stuart, 2?,. Freeman, In re, 80. V. Foster, 448. V. Huunewell, 142. V. Pope, 393. Freiberg v. Walzem, 125. Preke v. Carbery, 475. French v. French, 406. V. Fuller, 142. V. Kennedy, 203. V. Lord, 93, 1(>4. V. Marstin, BGO, 361. V. Pearce, 404, V. Peters, 9U. V. Pratt, 9(J, 97. V. Richards, 140. V. Rollins, 59, 81. V. Row, 182. V. Turner, 211. Frey v. Lowden, 3.17. Frick V. Fiscus, 454. Frick Co. v. Taylor, 269. Friedland v, Myers, 135. Friedlander v. Ryder, 22. Friedley v. Hamilton, 187. Friend v. Supply Co., 140. Frink v. Le Roy, 238. V. Pond, 439. Frisbee v. Frisbee, 238. Fritz V. Tudor, 97. Frogmorton v. Wliarrey, 297. Frohman v. Dickiu.son, 3(37. Frommer v. Roessler, 140. Frost, In re, 323. V. Bank, 23i>, 235. V. Beekman, 221, V. Cattle Co., 431. V. Iron Co., 150. V. Koon, 247. V. Rainbow, 118. V. Shaw, 207. V. Society, 412, 454. Frothingham. In re, 57. Frye v. President, etc., 225. Fryer v. Rockefeller, 220. Fuchs V. Fuchs, 489. FuUam v, Stearns, 13. Fuller, Ex parte, 475. V. Dauphin, 423. V. Griffith, 224. V. Montague, 345. V. Tabor, 21. V. Trust Co., 187. Fulmer v. Williams, 370. Funk V. Creswell, 411, 447. V. Eggleston, 39, 3U9, 316. V. Haldeman, 166. V. Voneida, 441. Furenes v. Michelson, 388. Furguson v. Bond, 187, 434. Furnish v. Rogers, 290. Fusselman v. VVorthingtou, 144, 108; Fyflfe V. Beers, 116, 121. G Gadberry v. Sheppard, 170. Gaffield v. Hapgood, 18, 19. Gaffney v. Hicks. 208. Gage V. Gage, 2US, 433, V, McDermid, 228. V. Sanborn, 412. Gaines v. Gaines' Ex'r, 105. V, Mining Co., 64. V. Walker, 246, Gainsford v. Dunn, 313. Galbraith v. Gedge, 340. V. Reeves, 194. Gale V. Nixon, 145. V, Ward, 19. V. Williamson, 427. Gale's Ex'rs v. Morris, 191, 192. Gal ford v. Gillett, 245. Gallagher v. Shipley, 17. Gallatin Co. v. Beattie, 184. Galliers v. Moss, 2.15. Galloway v. Findley, 404. V. Robinson, 484. Galpin v. Abbott, 220. Gait V. Galloway, 4<)3, 404. Galway v. Bryco, 397. Gambette v. Brock, 117. Games v. Stiles, 417. Gamut V, Gregg, 248. Gann v. Chester, 193. Gannon v. Hargadon, 371, Gano V, Aldridge, 421. CASES CITED. 527 [The figures refer to pages.] Ganson v. Baldwin, 159.. Garaly v. Dubo>:<', no. Gardiner v. Derringr, 64. Gardner v. Astiir. 273. V. Brown, 2i(i. V. Finley, 14. V. Greene, 91, 92, ia5. V. Hoopex*, SO. V. Keteltas, lo3. V. Lansing, 247. V. Ogden, 270. V. Pace, 41G. V. Webber, ISl. Garfield v. Williams, 443. Garland v. Watson. '2'>0. Garner v. Anderson, 491. Garnett v. City of Slater, 360. Garnhart v. Finney, 152. .Garnsey v. Rogers, 208. Garr v. Elble, 488. Garrard v. Garrard, 108. Garrett v. Clark, 5G. V. Jones, 122. V. Moss, 380. V. Puckett, 216, 244. V. Wagner, 489. Garrison v. Hayden, 221. V. Rudd, 355. Garson v. Green, 193. Garth v. Baldwin. 297. Garwood v. Railroad Co., 369. Gary v. Eastabrook, 120. V. Woodham, 400. Garza v. Investment Co., 199. Gashe v. Young, 267. Gaskell v. Viquesuey, 200. Gass V. Wilhite, 277. Gassett v. Grout, 393. Gaston v. Wright, 73. Gatenby v. Morgan, 302. Gates V. Ege, 237. V. M'Daniel, 380. V. Sutherland. 187. Gatewood v. Tomlinson, 83. Gaunt V. Wainman, 87. Gause v. Hale, 259. V. Wiley, 48. Gavit's Adm'rs v. Chambei-s, 5, 423. Gay V. Hamilton, 189. G^yle V. Wilson, 207. Gebhardt v. Reeves, 178. Geer v. Hamblin, 92. Geib V. Reynolds, 229. Geiger v. Bolles, 432. V. Peterson, 210. Gelston v. Thompson, 200. Gelzer v. Gelzer, 108. Gent V. Harrison, 62. Genter v. Morrison, 439. Gentry v. NYagstafC, 79. George v Andrews, 208. V. Bates, 420. V. Kent, 216. V. Putney, 144. V. Wood, 223. Gerber v. Grabel, 364. Gerdlne v. Menage, 200, 207. Germania Bldg. Ass'n v. Nelll, 228. German Sav. & Loan Soc. v. De Lash- mutt, 38-4. Geirard v. Cooke, 361. Gerrish v. Clough, 472. V. Shattuck, 356. Gervoyes' Case, 108. Geist V. Flock, 438. V. Packwood, 191. Getzler v. Saroni, 123. Gibbs V. Estey, 20. v. Johnson, 232. V. Swift, 437. V. WUllams, 371. Glbert v. Peteler, 170. Gibson v Crehore, 91, 231, 247. V. Gibson, 107. V. Hough, 209. V. Hutchins, 187. V. Kelly, 6. V. Kirk, 378. V. Leonard, 166. V. McOormick, 205. V. Oliver, 151. V. Railway Co., 22. V. Sopher, 385. Giddings v. Sears, 394. V. Smith, 49. Giesen v. White, 288. Gifford V. Corrigan, 203. V. McArthur, 370. V. Yarborough, 471. Gilbert v. Bulkley, 135. V. Cowan, 124. V. Insurance Co., 438. V. Penn, 184. 628 CASES CITEC. [The figures refer io cages.] Gilchrist T. Brown, 267. V. GouKh, 224. V. McLaughlin, 465. Gilfillan v. Chatterton, 493. Gill V. Faimtleroy's Heirs, 433. V. Lyon, 237. V. Middleton, 139. V. Piuney's Adm'r, 220. Gillespie v. Allison, 283. V. Miller, 2SG. V. Reed, 219. V. ^^'orford, 81. Glllett V. Baleom, 198. GUlis V. Bailey, 175. V. Brown, 86. V. Chase, 309. Gllman v. Hamilton, 275. V. Wills, 10, 19G. Gilmore v. Burch, 78. V. Driseoll, 365. V. Hamilton, 55. V. Severn, 289. V. Wilbur, 343. GUpin V. HoUingsworth, 337. Gllson V. Gilson, 186. Glrard v. Mayor, etc., 474. Glrardin v. Lampe, 227. Gladding v. Warner, 202. Gladwyn v. Hitchman, 240. Glascock V. Robards, 156. Glasgow V. Baker, 455. Glasgow College v. Attorney General, 276. Gleason v. Kinney's Adm'r, 182, 235. V. Smith, 447. Gledden v. Bennett, 20. Glenn v. Clark, 85, 89. V. Glenn, 313. GUdden v. Hunt, 213, 427. V. Strupler, 386. Globe Ins. Co. v. Lansing, 242. Glover v. Powell, 6. Godall V. Mop ley, 245. Godbold V. Freestone, 484. Goddard v. Chase, 19. V. Winchell, 7. Gk)dfrey v. Humphrey, 38. Godman v. Simmons, 305. Godolphin v. Abingdon, 479. Godwin v. Collins, 192. V. King, 110. Goedeke v. Baker, 143. Gofif V. Anderson, 74. Golmos V. Redmon, 440, Going V. Emery, 275. Gold V. Ogden, 208. Golden v. Hardesty, 433. Goldsborough v. Martin, 328. Goldsbrough v. Gable, 160. Goldsmith v. Goldsmith, 269. Goltermann v. Schiermeyer, 459, 463. Gomber v. Hackett, 152. Gomez v. Gomez, 133. Gooch V. Atkins, 95. V. Botts, 202. Gooch's Case, 392. Goodale v. Gawthome, 480. Goodall V. McLean, 478. Goodell V. Jackson, 400. Goodeuough v. Warren, 223. Goodenow v. Allen, 159. V. Ewer, 248. Goodnow V. Lumber Co., 383. Groodrlch v. Burbank, 355, 373. V. Jones, 14, 18. Goodright v. Oordwent, 162. V. Davids, 175. v. Dunham, 287, 290. v. Morningstar, 42. V. Richardson, 134. Goodrum v. Goodrum, 98, 109. Goods of Merritt, In re, 317. Goodspeed v. Fuller, 427. Goodtitle v. Billiugton, 292. V. Otway, 476. V. Way, 131. Goodwin v. Clark, 326. V. Folsom, 454. V. Gilbert, 378, 432. V. Goodwin, 87. V. Holbrook, 441. V. Richardson, 338. V. Thompson, 5. Gordon v. Bank. 193. V. George, 136. V. Smith, 234. Gore V. Gore, 299. Goree v. Wadsworth, 431. Gorham v. Electric Co., 426. Goring's Ex'rs v. Shreve, 20^ Goss V Fro man, 103. Gosselin v. Smith, 342, 4681 Gossett v. Drydale, 9, 143. Gossln V. Brown, 204. CASBS CITED. 629 [The figures refer to pages.] Gott V. Cook, 255. Gouhenant v. Cockrell, 121. Gould V. Lamb, 261, 262. V. Marsh, 211. V. Orphan Asylum, 24. V. School Dist., 147. V. Thompson, 156. Gourley v. Woodbury, 288. Gove V. Gove, 325. Govin V. De Miranda, 260. Gowan v. Foimtain, 113. Gowen v. Exchange Co., 166. Gower v. Howe, 245. V. Quinlan, 340. V. Winchester, 247. Grabenhorst v. Nicodemus, 141. Grabfelder v. Gazetti, 132. Grace, Ex parte, 270. Graff V. Middleton, 223. Graff's Estate, In re, 203. Graham v. Anderson, 141. V. Burch, 477. V. Dempsey, 162. V. Dunigan, 102. V. Graham, 107. V. Houghtalin, 289. V. King, 315. V. Linden, 230. V. Van Wyck, 106. Graham's Heirs v. Graham, 94. Grainsford v. Dunn, 313. Grandin v. Hernandez, 429. Grand Island Sav. & Loan Ass'n v. Moore, 207, 241. Grand Junction Canal Co. v. Shugar, 371. Grandona v. Lovdal, 4. Granger v. Brown, 162. V. Roll, 207. Grannis v. Clark, 138. Grant V. Bennett, 218. V. Chase, 351. V. Duane, 234. V. Hill, 449. T. Lynam, 316. V. Sutton, 84. Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 182, 185. Grapengether v. Fejervary, 210. Graves v. Berdan. 153. V. Colwell, 455. v. Dolphin, 397. REAL PROP.— 84 Graves v. Fligor, 105. V. Graves' Ex'r, 219, 475. V. Weld. 8. Gray v. Blanchard, 170, 174. V. Cuthbertson, 187. v. Johnson, 143. V. McCune, 107. V. Mathis, 71. V. Packer, 57. V. Robmson, 154, 155. V. Shaw, 249. V. Waldron, 210. V. Worst, 143. Graydon s Ex'rs v. Graydon, 173. Great Falls Co. v. Worster, 197. Greatrex v. Hayward, 372. Green v. Armstrong, 8. V. Arnold, 346. V. Biddle, 21. V. Bridges, 176. V. Claiborne, 319. V. Cross, 238. V. Drinker, 220. V. Garrhigton, 222. V. Goff, 357. V. Green, 383. 48L V. Hall, 207, 241. V. Hewitt, 292. V. Liter, 75, 76. V. Marks, 123. V. Pettingill. 243. V. Phillips, 15. V. Putnam, 91. V. Root, 125. V. Rumph. 259. V. Sherrod, 187. V. Slayter, 216. V. Spicer, 397. V. Wilding, 383. Greenbaum v. Austrian, 106. Green Bay & M. Canal Co. v. Hewitt. 412. v. Kaukauna Water Power Oo., 353, 369. Greenby v. Wilcooks. 448. Greene v. Reynolds, 88. Greenleaf v. Grounder, 489. Greenley v. Wilcocks, 443. Greeno v. Munson, 144. Greensburg Fuel Co. v. Irwin Nat Qa« Co.. 228. Green's Estate, In re, 38. 630 CASES CITED. [The figures refer to pages.] Greenwell v. Heritage, 204. Greenwood v. Maddox, 113, 116, 126. V. Tyler, 419. V. Verdon, 326. Greenwood's Appeal, 264. Greer v. Haugabook, 379. V. Turner, 201. Gregg V. Bostwick, 118, 119. V. Boyd, 9, 143. V. Patterson, 336. V. Railway Co., 21. Gregory v. Gates, 12L V. Thomas, 229. V. Wilson, 151. Gress Lumber Co. v. Goody, 420. Grey v. McCune, 84. T. Mannock, 54. Gridley v. Bingham, 393. V. Watson, 393. Griffin v. Bixby, 4. V. Groutleu, 126. V. Griffin, 192. V, ]Marine Co., 249. T. Reece, 104. V. Sheffield, 104. Griffith V. Schweuderman, 13L Gi-iggs V. Smith, H'k Grim, Appeal of, 432. Grimes v. Kimball, 230. V. Ra gland, 4t>2. V. Wilson, 94. Grimes' Ei'rs v. Harmon, 277. Grimshaw v. Belcher, 167. Griswold v. Huffaker, 118. T. Johnson, 335. V. Little, 464. Groesbeck v. Seeley, 438. GroflP V. Rohrer, 266. Groft V. Weakland, 466. Grogan v. Garrison, 108. Grommes v. Trust Co., 149. Groneweg v. Beck. 122. Groome v. Almstead, 156. V. Ogden City Corp., 138. Gropengether v. Fejorvary, 192. Grosholz V. Newman, 119, 122. Grosvenor v. Bowen, 322. Grouch V. Lumber Co., 270. Groustra v. Bourges, 158. Grout V. Townseud, 77, 81. Grover v. Thatcher, 231. V. Wakeman, 394. Grube v. Wells, 4t!4, 465. Gruenewald v. Scliaales, 161. Gruhn v. Richardson, 126. Grussy v. Schneider, 230. Grute V. Locroft, 71. Grymes v. Bowereu, 18. Gudgen v. Besset, 434. Guerin v. Moore, 9S. Guertin v. Mombleau, 452, 455. Guest V. Farley, 256. V. Reynolds, 364. Guffy V. Hukill, 175. Guild V. Richards, 174. Guion V. Anderson, 73, 74. Gulf, C. & S. F. Ry. Co. v. Smith, 142. Gully V. Ray, 89. Gumbel v. Boyer, 211. Gumbert's Appeal, 267. Gunn V. Barry, 125. Gunning v. Cusack, 356. Gunnison v. Twitchel, 84. Gunson v. Healy, 360. Gunyon's Estate, In re, 109. Guthrie v. Gardner, 268. V. Jones, 16. Gutman v. Buckler, 315. Gwaltney v. Land Co., 370. Gwynn v. Thomas, 450. Gwynne v. City of Cincinnati, 105. H Haaven v. Hoaas, 268. Hacker's Appeal, 316. Hackett v. Marmet Co., 144. V. Reynolds, 192. Hack with v. Damron, 216. Hadley v. Stewart, 202. Haflick V. Stober, 20, 22. Hagan v. Vamey, 61. Hagar v. Brainerd, 184. V. Wiswall, 346. Hageman v. Hagemau, 296. Haggerty v. Hocken berry, 283. Hagthorp v. Hook's Adm'rs, 201. Haight V. Pearson, 209. Haile v. Nichols, 206. Haines v. ElUs, 82. Halt V. Houle, 124. Haldeman v. Bruckhart, 371. CASES CITED. 531 [The figures refer to pages.] Hale V. Hale, 317. V. James, OG, 'J8. V. Pew, 327. V. Plummer, 93. Hales V. James, 96. V. Petit, 49. Haley v. Colcord, 361. Hall V. Bray, 447. V. Chaffee, 305. V. Grouse, 225. V. Dean, 445. V. Eaton, 424. V. Fields, 114, 115. T. Hall, 72, 491. V. Harris, 436. V. Lawrence, 375, 376. V. Nottingham, 354. V. Piddock, 345. V. Priest, 301. V. Savage, 107. V. Smith, 110. V. Stevens, 404, V. Thayer, 51. V. Vandegrift, 48. V. Wallace, 156. Hallett V. Hallett, 87. V. Thompson, 41. V. Wylie. 140. Hall's Lessee v. Vandegrift, 459. Hallum V. Silliman, 317. Halsey v. McCormick, 422, 471. V. Tate, 274, 275. Halstead v. Lake Co., 388, Hambrick v. Russell, 245. V. Security Co., 2.-)0. Hamilton v. Butkwalter, 109. V. Cutts, 447. V. Denny, 341. V. Downer, 260. V. Elliott, 172, 174. V, Gilbert, 193. V, Pittock, 143. V. Ritchie, 475. V. Wentworth, 298. V. White, 356. V, Wilson, 443. V. Wright, 138. Hamlin v. Hamlin, 89, Hammerton v. Stead, 409. Hammond v, Peunock, 265. V. Peyton, 194, Hampton v. Holman, 327. Hanchett v. Whitney, 162. Hancock v. Beverly's Heirs, 224. V. Carlton, 175. V. Fleming, 232. Handly's Lessee v. Anthony, 423. Hanes v. Denby, 204. Hanford v. Blessing, 190. Hanks v. Enloe, 334, Hanlon v, Doherty, 232. Hannah v. Collins, 456, V. Henderson, 447. V. Swarner, 434. Hannibal & St. J. R. Co. v. Green, 421. Hanrahan v. O'Reilly, 450, Hanrick v. Patrick, 454. Hansard v. Hardy, 238. Hansen v. Meyer, 136, 137. Hanson v. Cochran, 438. Hapgood V. Blood, 196, V. Houghton, 170. Haralson v. Bridges, 71. Harder v, Haider, 145. Hardin v. Jordan, 423. V. Lawrence, 98. V. Osborne, 438. Harding v. Allen, 223. V. Glyn, 313. V, Handy, 384. V. Manufacturing Co., 240. Hare v. Stegall, 145. Hargreaves, In re, 323. V. Menken, 241. Harkness v. Sears, 17. Harland v. Binks, 396. Harlan's Heirs v. Seaton's Heirs, 224. Harlow v, Thomas, 448. Harmon v. Harmon, 392. V. Smith, 317, Harper v. Edwards, 181, V. Ely, 200, 202, 250. Harper's Appeal, 201. Harral v. Leverty, 216. Harries' Trust, In re, 317. Harriman v. Gray, 107. V. Light Co., ISO, 185. Harris v. Carson, 9. V. Curran, 493. V, Frink, 8, 9, 157. V, Gosliu, 143. V. Jex, 230. V. Knapp, 310. V, McElroy, 271. 532 CASES CITED. [The figures refer to pages.] Harris v. Rlchey, 464. V. Kydinjr, 30(5. V. SCO vol. 10, 14. V. Sumner, 3'J4. Harrison v. Battle, 307. V. Boring. 349. V. Boyd, iH. V. Eldridge, 91. V. Foote, 171. V. Middleton, 158. V. Moore, 07. V. Ricks, 154. V. Simons, 416. V. Sterry, 41. V. Yerby, 210. Hart V. Connor, 360. V. Dean, 32. V. Leete, 72. V. McCk)llum, IIL V. McGrew, 81. V. Randolph, 111. Harter v. Twohlg, 237. Hartford Fire Ins. Go. v. Walsh, 198. Hartley v. Harrison, 206, 207. V. Tatbam, 207. Hartley's Appeal, 189. Hartman v. Fick, 357. Harton v. Harton, 256. Hartshorn v. Hubbard, 197. Hartshorne v. Hartshome, 90. Haxtwell V. Camman, 7. V. Kelly, 23. V. McDonald, 120. Harvey v. Brisbin, 77, 317. V. Walters, 358, 372. Y. Wlckham, 75. Hanill v. Holloway, 93. Haskell v. Bissell, 220. V. Scott, 193. Hasker v. Sutton, 285. Hasklns v. Tate, 58. Hastings v. Clifford, 109. V. Dickinson, 107. V. Mace, 111. V. Stevens, 91. Hasty V. Wheeler, 65. Hatch V. Barr, 430. V. Ferguson, 455, 481. V. Haskins, 221. V. Hatch, 66, 429. Hatcher v. Curtis, 321. Hatfield v. Malcom, 246. V. Sneden, 77, 79. Hathaway v. Insurance Co., 21. V. Payne, 434. Hathon v. Lyon, 74. Haitersley v. Bissett, 476. Hauenstein v. Lynham, 388. Haven v. Adams, 218. V. Foster, 205. V. Mehlgarten, 342. Havens v. Electric Light Co., 19. V. Land Co., 305. Havei-stick v. Sipe, 364. Haward v. Peavey, 288. Hawes v. Wyatt, 477. Hawkins v. Skeggs, 9. V. Skeggs' Adm'r, 62. Hawksland v. Gatchel, 430. Hawley v. Bradford, 90. V. Cramer, 270. V. James, 267. V. Northampton, 286, 302, Haworth v. Taylor, 217, 221. Hay V. Mayer, 77. Hayden v. Merrill, 341. V. Paterson, 843. V. Smith, 229. V. Stoughton, 171. Haydon v. Haydon, 489. Hayes' Appeal, 345. Hayes v. Dl Vito, 361, V. Foorde, 297. v. Kershow, 260, 264. V. Mining Co., 16, 19. V. Railway Co., 171. V. Waldron, 369. Hayner v. Smith, 138. Haynes v. Boardman, 467. V. Investment Co., 151. v. King, 363. v. Powers, 101. V. Schaefer, 115. Hays v. Cas.sell, 490. Hayward v. Kiuney, 59. Haywood v. Building Soc., 851. V. Fulmer, 166. V. Rogers, 154. Hazard v. Draper, 198. V. Robinson, 358. Hazeltlne v. Moore, 193. Heald v. Heald, 324. CASES CITED. 638 [The figures refer to pages.] Healey r. Alston, 273. V. Worth, 219. Heaney v. Heeney, 166. Hearle v. Greenbaak, 78. Heasman v. Pearse, 324. Heath v. Bishop, 397. V. Heath, 38. V. White, 74, 75. Heaton v. Prather. 214, 221, 222. Hebron Gravel Road Co. v. Harvey, 871. Hecht V. Herrwagen, 153. Heckman v. S-wett, 5, 471. Hedges v. Riker, 319. Heelis v. Blain, 253. Heennance v. Vernoy, 142. Heffner v. Lewis, 11, 19. Heibert v. Wren, 87. Heldel v. Benedict, 118. Heinouer v. Jones, 151. Helntze v. Bentley, 139. Heisen v. Heisen. 95, 99, 110. Heister v. Madeira, 187. Heister's Lessee v. Fortner, 219. Heitkamp v. Granite Co., 195. Helbreg v. Schumann, 189. Hele V. Bond, 321. Hellwlg V. Bachman, 24. Helm V. Boyd, 188. T. Gilroy, 21. V. Helm, 115. V. Webster, 178. Helme v, Strater, 110. Helmer v. Krolick, 211. Helms V. Chadbourne, 214. Hemenway v. Cutler, 21. Hemphill v. Ross, 184. Hempstead v. Easton, 455. Henagan v, Harllee, 90. Hender v. Roye, 109. Henderson v. Baltimore, 428. V. Eason, 341. V. Ellerman, 491. V. Henderson, 297. V. Hunter, 177, 178. V. Truitt, 236. V. Vaulx, 322. Hendrix v. McBeth, 88. Hendrixson r. Cardwell, 0. Hendy v. Dinkerhoff, 12. Henegan v. Harllee, 90. Henkel v. Bohnke, 204. Henley v. Hotaling, 190. Hennessy v. Patterson, 283. Henning v. Burnet, 300. Henry v. Simpson, 317. V. Tupper, 175. Henry's Case, 20. Henschel v. Mamero, 230. Hensel v. Association, 126. Hensey v. Hensey's Adm'r, 125. Henshaw v. Bissell, 452. V. Wells, 154. Herbemont's Ex'rs v. Thomas, 83S. Herber v. Thompson, 228. Herbert v. Association, 204. V. Scofield, 192. V, Webster, 326. Herdman v. Cooper, 117. Herff V. Griggs, 200. Herman v. Roberts, 357. Heme v. Bembow, 63. Herr v. Herr, 95. Herrell v. Sizeland, 159. Herrick v. Graves, 119, 121. V. Malln, 429. Hersey v. Chapin, 158. V. Turbett, 218. Hertell v. Van Buren, 314. Hervey y. Hervey, 108. Hfcslop V. Heslop, 103. Hesnard v. Plunkett, 113, 127. Hester v. Hunnicutt, 449. Heth V. Cocke, 89, 91. Hethrington v. Graham, 103. Hetzel V. Barber, 322. Hetzell V. Barber, 231. Heuisler v. Nickum, 220, Hewitt v. Rankin, 116, 117. V. Templeton, 123. Hews V. Kenney, 267. Hey V. Moorhouse, 145. Heyward v. Judd, 248. V. Mining Co., 6. Hiatt V. Parker, 181. Hibberd v. Smith, 435. Hicklln V. Marco, 201. Hickman v. Irvine's Heirs, 87. V. Kempner, 493. V. Stewart, 450. mckox V. Railroad Co., 357. Hicks V. Chapman, 131. v. Cochran, 337. V. Smith, 480. 534 CASES CITED. [The figures refer to pages.] Hlester v. Green, 192. HIgble V. Westlake, 99. Higglnbottom v. Short, 346. Hlggins V. Bordages, 125, 489. V. Breen, 84. V. Higgins, 339. V. Kusterer, 7. V. West, 248. Highstone v. Burdette, 463. Highways Berridge v. Ward, 422. Ulginbotham v. Holme, 396. V. Stoddard, 424. Hihn V. Peck, 342. Hilburn v. Harris, 452. Hlldreth v. Conan, 158. V. Jones, 91. Hiles V. Fisher, 338. Hill V. Bacon, 288, 445. V. Barclay, 176. V. Crosby, 353. V. De Rochemont, 17. V. Epley, 451. V. Gibbs, 344. v. Gregory, 93. V. Hill, 15, 46, 48. V. Lord, 373. V. McNichol. 433. V. Meeker, 224. V. Murray, 214. V. Payson, 233. V. Railroad Co., 372. V. Robertson, 184. V. Roderick, 304. V. Sewald, 12. V. Townley, 247. ▼. Tupper, 355. V. Wentworth, 12. Hillen v. Iselin, 329. Hilliard v. Scoville, 345. Hills V. Bishop, 4. V. Day, 346. V. Miller, 350, 355. V. Simonds, 325, 328. Hill's Adm'rs v. Mitchell, 99. Hilton V. Bank, 241. Iliuchliff V. Hinman, 483. Hlnchman v. Stiles, 91. Hinde's Lessee v. Longworth, 393. Hines v. Ament, 12. Hinkley v. Black, 21. V. Wheelwright, 206. Hinsdale v. Humphrey, 378. Hirst's Estate, In re, 24. Histc V. Buckley, 21. Hitch V. Patten, 38. Hitchcock V. Bank, 24a Hitner v. Ege, 79. Hitz V. Bank, 80, 83. Hoban v. Cable, 420, 464. Hobbs V. Harvey, 91. V. Trust Co., 185. Hochenauer v. Hilderbrant, 185. Hocker v. Gentry, 477. Hocker's Appeal, 205. Hodgdon v. Shannon, 181. Hodge V. Amerman, 217. Hodgen v. Gutteiy, 237. Hodges V. Spicer, 57. V. Williams, 471. Hodgkins v. Farrington, 16& Hodgkinson, Petitioner, 845. V. Wood, 476. Hodgson V. Halford, 172. Hodson V. Treat, 206. Hoeveler v. Fleming, 141. Hoffar V. Dement, 337. Hoffman v. Armstrong, 4. V. Clark, 164. V. Kuhn, 367. V. Stigers, 337, 338. Hoff' s Appeal, 204, 205. Hol'man v. Demple, 124. Hogan V. Curtin, 173. V. Jaques, 266. V. Strayhorn, 266. Hoge V. Hoge, 270. Hogvjnson v. Railway Co., 372. Hogg V. Water Co., 369. Hogsett V. Ellis, 164. Hoile V. Bailey, 188. Hoitt V. Webb, 119, 122. Holabird v. Burr, 201. Holbird V. Anderson, 394. Holbrook v. Chamberlain, 16. V. Dickenson, 224. T. Finney, 85, 89. y. Tirrell, 434. Holden v. Boggess, 104. V. PInney, 120. V. Wells, 48, 77. Holder v. Coates, 4. Hole V. Escott, 321. Holford V. Hatch, 137. Holladay v. Power Co., 163. CASES CITED. 535 [The figures refer to pages.] Holland v. Aleock, 276» V. Bank, 249. V. Hodgson, 21. Holley V. Glover, 93, Holliman v. Smith, 117. Hollingsworth & Vose Co. v. Foxbor- ough Water-Supply Dist., 871- HoUister v. Shaw, 31G. V. Young, 464. Hollman v. Tigges, 317. HoUoman v. Holloman, 96. 'Holly Manuf'g Co. v. New Chester Water Co., 12. Holman v. Bailey, 228. V. Gill, 345. Holmes v. Book, 90. V. Buckley, 351. V. Coghill, 320. V. Conway, 351. v. Godson, 395. V. Goring, 360. V. Penney, 396. V. Prescott, 293. V. Railway Co., 241. V. Seely, 359, 360. V. Tremper, 17. Holton V. Guinn, 93. V. Kemp, 429. Holtzapffel v. Baker, 140. Homestead Ass'n v. Enslow, 124. Honore's Ex'r v. Bakewell, 194. Honywood v. Honywood, 66. Hood V. Fahnestock, 217. V. Haden, 312, 315. V. Oglander, 395. Hooker v. Hooker, 79. Hooks V. Forst, 152, 153. Hool V. Bell, 377. Hooper v. Cummings, 170, 17C5w T. Henry, 232. Hooton V. Holt, 140, 165. Hoots V. Graham, 95. Hoover v. Buck, 489. Hopkins V. Garrard, 217. V. Glunt, 262. V. Grimes, 474. V. Hopkins, 255, 285. V. Railroad Co., 379. V. Smith, 172, V. Turnpike Co., 263. Hopp V. Hopp, 434. Hoppe V. Hoppe, 114, 115, Hopper V. Calhoim, 207. V. Hopper, 100. Hoppock V. Johnson, 215, Horbach v. HiU, 190. Hord V. James, 248. Horn V. Bennett, 210. v. Keteltas, 188. V. Tufts, 116. Horubeck v. Westbrook, 418. Home V. Lyeth, 296. Horner v. Leeds, 134, 144. V. Renter, 460, 465. V. Watson, 871. Horseley v. Moss, 155. Horton v. Earle, 477. Horwitz V. Norris, 313. Hosford V. Ballard, 377. V. Johnson, 236. Hoske V. Gentzlinger, 162. Hoskins v. Rhodes, 155. Hosll V. Yokel, 159. Hoss V. Hoss, 173. Houck V. Yates, 5, Houell V. Bames, 315. Hough V, Brown, 153, Houghton V, Hapgood, 78. House V, Fowle, 104, 107. V, Jackson, 92. Houston V. Newsome, 122. V. Smith, 84. Houston & G. N. R, Co. t. Winter, 120. Hovey v. Nellis, 67, How V, Bank, 120, Howard v, Merriam, l,j6, 157. T, Peace Soc, 277. v. Priest, 340, V. Shaw, 156, 220. V, Thornton, 315, Howard Ins. Co. v. Halsey. 210. Howard's Estate, In re, 171. Howe, Ex parte, 191. V. Andrews, 6. T. W^arren, 34. Howell V. Hale, 452. V, Howell, 267. V. Jones, 117. V. MerrUl, 424. V. Mills, 345, V. Rex, 361, T. Richards, 442. V. Schenck, 9. y. Tyler, 312. 536 Cases cited. [The figures refer to pages.] Howlett T. Dllts, 84, lOe. Howze v. Barber, 38. Hoiie V. Carr, 339. Hoyle V. Hallway Co., 15. Hoyt V. Bradley, 181. V. Howe, 123. V Hoyt, 117. V. Swar, 386. Hubbard v. BeiTy, 143. V. Elmer, 319. V. Hubbard, 174, 175. V. Johnson, 493. V. Kiddo, 459, 400. V. Shaw, 143, 202. V. Turner, 226. Hubbell V. Canady, 123. V. Medbury, 270, 274. V. Moulson, 200. Hucklns V. Straw, 196. Hudson V. Sieere, 93. Huebsclimami v. McHenry, 21, 23. Huey's Appeal, 123. Huff V. Farwell, 237. V. Land Co., 447. V. McCauley, 349, 350, 407. Huffell V. Armltstead, 163. Huffmaster v. Ogden, 85. Hughes V. Allen, 93. V. Edwards, 186, 241. V. Graves, 456. V. Johnson, 202. T. Nicklas, 296. T. Robotham, 281, V. Sayer, 326. V. Sheaff, 190. V. Windpfennig, 134. Hughes' Minors' Appeal, 181. Hughs V. Pickering, 459, 466, 467. Hulbert T. Clark, 240. Hulburt V. Emerson, 44. Hulett V. Insurance Co., 224. V. Soullard, 191. V. Whipple, 193. Hulick V. Scovil, 435. Hull & S. Ry., In re, 471. Hulme V. Montgomery, 485. Huls V. Buntin, 461. Humberston v. Humberston, 327. Humble v. Glover, 378. Humes v. Bernstein, 462. Hummelman v. Mounts, 417. Humphrey v. Phinney, 97. Hatnpbreys v. Blasingame, 363» V. McKissock, 426. Humphries v. Brogden, 366. Hunkins v. Huukius, 10(i. Hunnewell v. Bangs, 153. Uunuicut V. Peyton, 458, 465. Hunt V. Amidou, 135. V. Blackburu, 337. V. Conistock, 140. V. Danforth, 137. V. Hall, 304. V. Hunt, 195, 244, 273. V. Iron Co., 12. V. Johnson, 219. V. Mortgage Security Co., 21(X V. Morton, 159. V. MuUanphy, 13. V. Nolen, 246. V. Peake, 365. V. Rousmanier's Adm'rs, 311. V. StUes, 242. V. Thompson, 147. V. Waterman, 193. V. Watkins, 9, 60, 61. V. Wright, 327, 344. Hunter v. Anderson, 24. V. Ayres, 469. v. Bryan, 57. V. Frost, 161. V. Le Conte, 145. V. Osterhoudt, 152. V. Stembridge, 261. V. Trustees of Sandy Hill, 363. V. Whitworth, 74. Hunters v. Waite, 393. Hunter's Adm'r v. I^aw. 115. Huntington v. Allen, 462. V. Asher, 350, 374. Huntley v. Hole, 451. V. Russell, 62, 65, 66. Hunton v. Nichols, 466. Hupp v. Hupp, 34. Hurd V. Curtis, 137, 418. v. Cushiug, 55. V. Darling, 154. V. Grant, 100. V. Shelton. 171, Hurdman v. Railway Co., 372. Hurlburt v. Firth, 358. Hurley v. Estes, 184. V. Hamilton, 346. CASBS CITSD. 637 [The figures refer to pages.1 Hurst V. Hurst, 396. V. Rodney, 135. V. Winchelsea, 475. Hurto V. Grant, 174. Huston V. Clark, 15. V. Seeley, 95. Hutchings v. Bank, 150. V. Huggins, 122. Hutchings' Adm'r v. Bank, 78. Hutcbms V. Dixon, 80. V. Heywood, 274. V. Masterson, 12, 20. Hutchinson v. Swartsweller, 229. Hutchison v. Rust, 438. Huth V. Dock Co., 383. Hutton V. Bankard, 316. Hutzler v. Phillips. 192. Huxley v. Rice, 2G5. Huyser v. Chase, 1G2. Huzzard v. Trego. 4i>4. Huzzey v. Field. 380. Hyatt V. Cochran, 221. V, Griffiths, IGO. Hyde v. Baldwin, 453. V. HeUer, 476. Hylton V. Brown. 21. Hyman v. Devereux, 24. V. Kelly, 184. V. Read, 402. Hymes v. Esty, 448. Ibbs V. Richardson, 164. Iglehart v. Bierce, 245. Illinois Cent. R. Co. v. Illhiois, 5. V. Indiana & I. C. R. Co., 418. V. McCullough, 217, 436. Illinois Fire Ins. Co. v. Stanton, 197. Imlay t. Huntington, 256. Independent Dist of Oak Dale v. Fagen, 457. Indianapolis Manufacturing & Car- penters' Union v. Cleveland 0. C. & I. Ry. Co., 147. Indianapolis Water Co. v. Nutte, 441. Ing V. Brown, 408. Ingalls V. Atwood, 188. Ingals V. Plamondon, 367. Ingersoll v. Sergeant, 31, 376, 377. IngersoU's Estate, In re, 24. Inglis V. Trustees, 276. Ingraham v. Meade, 313. V. Wilkinson, 5, 471, Ingram v. Little, 328. V. Morris, 90. Inhabitants of Deerfield t. Arms, 471. Inhabitants of First Parish In Sud- bury V. Jones, 21. Inhabitants of Plymouth v. Carver, 137. Inhabitants of Rehoboth v. Hunt, 34-1. Inhabitants of School Dist. No. 4 v. Benson, 470. Inhabitants of West Roxbury v. Stod- dard, 6. Inhabitants of Windham v. Inhabit- ants of Portland, 95. Inhabitants of Winthrop v. Fairbanks, 351. Inhabitants of Worcester v. Green, 375. Innes v. Sayer, 318. Innis V. Templeton, 452. Insurance Co. v. Stinson, 197. International Bank of Chicago r. WIl- shire, 233. International Trust Co. v. Schumann, 138. Interstate Bldg. & Loan Ass'n t. Mc- Cartha, 222. Ipswich V. Browne, 379. Ipswich Manuf'g Co. v. Story, 229. Irish V. Sharp, 210. Irvine v. Greever. 78. V. Irvine, 383. V. Marshall. 402. V. Newlln, 293. V. Tarbat, 403. Ii-win V. Covode, 64. V. Davidson, 201. V. Patchen, 452. Irwin's Heirs v. Longworth, 419. Isele V. Bank, 445. Iselin V. Starln, 353. Isham V. Morgan, 3. Ive V. Sams, 409. Ives V. Allyn, 475. V. Lynn, 493. Ivie V. Stringfellow's Adm'r, 490. Ivy V. Yancey. 195, 451, 468. Izard V. Middleton, 54. 533 CASES CITED. rrhe figures refer to pages.] Jaokman v. Arlington Mills, 369, 372. Jackson v. Aldrich, 158. V. Alexander, 410. V. Allen, 123, 152, 175. V. Andrew, G3, 66. V. Andrews, 218. V. Aspell, 95. V. Austin, 226. V. Ayers, 453. V. Babcock, 167, 494. V. Baker, 162. V. Bard, 435. V. Berner, 463. T. Bradford, 455. V. Bradt, IGO. V. Brownell, 154. V. Brownson, 63, 145i. V. Bryan, 157, 161. V. Bull, 39. T. Cadwell, 490. V. Cairns, 459. V. Campbell, 430. V. Carpenter, 382. V. Cary, 256. V. Chamberlain, 225. V. Chase, 434. T. Chew, 302. V. Churchill, 100, 109. V. Clark, 421. V. Cleveland, 266. V. Crysler, 174. V. Delacroix, 132. V. Delancey, 272, 410, 473. V Dillon's Lessee, 411, V. Dubois, 225. T. Dunsbach. 299. V. Elston, 223. V. Embler, 57. V. Fish, 410. V. Ford, 226. V. Foster, 464. V. Harder, 344. V. Harrison, 151. V. Haviland, 459. V. Hayner, 429. V. Hodges, 82. V. Housel, 38. V. Hull, 241. T. Huntington, 460, 463. T. Ireland, 419. Jackson v. Jackson, 83, 297, 318, 4S1. V. Johnson, 74, 75, 76, 303. V. Kip, 88. V. Lawrence, 187. V. Leek, 434. V. Leonard, 467. V. Llgon, 317. V. Loomis, 21. V. M'Chesney, 427. V. McKenney, 410. T. McLeod, 164, 165. T. Mancius, 57, 59. V. Matsdorf, 268. V. Merrill, 38. V. Moore, 468. T. Morse, 491. V. Myers, 256. V. Noble, 302. V. O'Donaghy, 95. V. Ogden, 453. V. Page, 223. V. Parkhurst, 150, 163, 165. V. Phillips, 275, 276, 277. V. Phipps, 434, 435. V. Potter, 474. V. Reeves, 424. V. Roberts, 477. V. Robins, 395. V. Schoonmaker, 281, 303, 438. V. Schutz, 152, 395. V. Sebring, 410. V. Sellick, 75, 76, 303. V. Sheldon, 151. V. Shepard, 437. V. Smith, 465. V. Stevens, 187, 446. V. Swart, 410. V. Thompson, 302. V. Tibbits, 464. V. Vanderheyden, 453, 458. V. Van Hoesen, 57. V. Van Valkenburgh, 214, 215w V. Van Zandt, 35. v. Vermllyea, 461. V. Vincent, 144. V. Von Zodlitz, 398. V. Walker, 274. V. Weaver, 234. 248. V. Wells, 57. V. Willard, 184, 212, V. Winslow, 448. T. Wood, 415. CASES CITED. 539 [The figures refer to pages.] Jackson «. WoodruCE, 461, 462. V. Wright, 454. Jacob V. Howard, 305. Jacobs V. Rice, 80. Jacques v. Short, 135. Jaffe V. Harteau, 139. Jamaica Pond Aqueduct Corp. v. Chandler, 350, 419. James v. Cowing, 269. V. Dean, 157. V. Morey, 1.S6, 220, 232, 273. V. Sammis, 362. V. Vanderheyden, 436. Jameson v. Hayward, 67. Jamison v. Periy, 195. Janney v. Sprigg, 77. Jarechi v. Society, 21. Jarvais v. Moe, 119, 122, Jarvis v. Dutcher, 192. V. Frink, 232. V. Hoffman, 127. V. Woodruff, 237. Jauretche v. Proctor, 395. Jee V. Audley, 323. Jefferies v. Fort, 85. Jefferis v. Land Co., 423. Jeffersonville v. The John Shallcross, 379. Jeffery v. Hursh, 186. Jencks v. Alexander, 202. V. Smith, 8. Jenkins v. Atkins, 431. V. Eldridge, 263. V. Fahey, 32, 345. V. Gething, 18, 19. V. Hopkins, 445. V. Hurt's Com'rs, 430. V. Jenkins, 297, 382. V. Jenkins' Heirs, 84. V. Keymes, 394. V. McCurdy, 10. V. Newman, 494. V. Wilkinson, 211. Jenkinson v. Auditor General, 491. Jenks V. Horton, 60. V. Pawlowski, 172. Jenkyn v. Vaughan. 394. Jenner v. Gurner, 172. V. Morgan, 60. Jennings v. Conboy, 312. V. McComb, 156. Jennings v. O'Brien, 170. Jennison v. Hapgood, 90, 91. Jenny v. Jenny, 100. Jeremy v. Elwell, 6. Jerome v. McCarter, 247. Jervoise v. Duke of Northumberland, 258. Josser V. Gifford, 142. Jessou V. Wright, 297. Jesup V. Bank, 319. Jeter v. Davis, 468. Jevon V. Bush, 264. Jewell V. Porter, 386. V. Warner, 49, 53. Jewett V. MUler, 453. V. Tomlinson, 231, 247. Jiggitts V. Jiggitts, 105. Jockheck v. Commissioners, 495. John and Cherry Sts., In re, 184. John MoiTis Co. v. Southworth, 135. Johnson v. Baker, 436. V. Bennett, 270. V. Branch, 435. V. Brown, 244. V. Caitrell, 90. V. Carter, 164. V. Cawthorn, 193. V. Clarke, 210. V. Cornett, 210. V. Gushing, 320. V. Doll, 159. V, Farley, 433, 435, V. Harmon, 236. V. Hart, 338. V. Hoffman, 154. V. Hosford, 202. V. Houston, 184. V. Jacob, 86. V. Johnson, 64, 249, 265, V. Jordan, 351, 352, 426. V. McGehee, 438. V. Mcintosh, 31, 400. V. May, 378. V. Moore, 429. V. :Mosher, 2L V. Muzzy, 378. V. Neil, 96. V. Norway, 486. V. Perley, 87. V. Plume, 85. V. Richardson, 4, 118. V. Skillman, 353. V. Smith, 60. 540 OASES CITED. [The figures refer to pages.] Johnson v. Stagg, 435. V. Touchet, 318. V. Van Velsor, 189. V. White, 195. V. Williams, 223. V. Zink, 204. Johnson's Estate, In re, 109. Johnson's Ex'r v. Wiseman's Ex'r, 18. Johnson's Trusts, In re, 329. Johnston v. Jones, 471. V. Turner, 119. V. Vandyke, 97. V. Zane, 41. Johnston's Lessee v. Haines, 488. Jones V. Adams, 351. V. Bank, 209. V. Bochove, 357. V. Brewer, 9G, 100. V. Bull, 13. V. Butler, 383. V. Carter, 174. V. Chamberlin, 220. V. Crow, 352. V. Doe, 175. V. Dm-rer, 152, 154. ▼. Franklin. 446, 447. V. Gerock, 83. V. Gilbert, 115. V. Habersham, 329. V. Hollopeter, 96. V. Hughes, 88. V. Johnson, 6. V. Jones, 84, 98, 178, 334, 339. V. Kimble, 424. V. Lapham, 246. V. Lemon, 468. V. Millsaps, 139. V. Parker, 137. V. Pettibone. 423. V. Powell, 111. V. Pullen, 249. V. Railway Co., 172, 175. V. Ramsey, 12. V. Smith, 211. V. Swayze, 435. V. Swearingen, 284. V. Tainter, 226. V. Tapling, 358. V. Thomas, 196. V. Trust Co., 239. V. Van Bochove, 357. T. Wagner, 366. Jones V. Walker, 175. V. Webb, 301. V. Webster, 185. V. Winwood, 317. Jones' Ex'rs v. Jones, 24. V. Stills, 57. Jorda' V. Adams, 297. V. Corey, 438. V. Godman, 124. V. Katz, 189. V. McClure, 36, 294. V. Roach, 53. V. Sayre, 184. V. Woodin, 397. Joseph Smith Co. T. McGulnness, 19L Josephthal t. Heyman, 215. Joslin V. McLean, 153. V. Rhoades, 395. V. Wyman, 243. Joslyn V. Parlin, 181. V. RockweU, 491. Josselyn v. Josselyn, 326. Jossey V. White, 57. Josslyn V. McCabe, 22. Jourdain v. Fox, 188, 454. Jourdan v. Haran, 93. 'joy V. Bank, 367. Joyce V. Conlin, 356, 357. V. W^illiams, 453. Joyner v. Farmer, 250. Judd V. Seekins, 231. Judge V. Insurance Co., 198. V. Reese, 189. Judkins v. Woodman, 196. Junction R. Co. v. Harris, 73. K Kabley v. Light Co., 160. Kade v. I^uber, 84. Kain v. Fisher, 101. Kaine v. Weigley, 393. Kaler v. Beaman, 356. Kane v. Bloodgood, 274. V. Sanger, 449. Kannady v. McCarron, 183. Kansas City Land Co. v. Hill, 21«,. 289. Kansas Inv. Co. v. Carter, 142. Karchner v. Hoy, 171. Karmuller v. Krotz, 360, CASES CITED. 641 [The flgnres refer to pages.] Kaster v. McWilliams, 119. Kastor v. Newhouse, 139. Katz v. Scnnaier, 454. Kay V. Oxley, 361. V. Railroad Co., 166. V. Whitaker, 246. Kayser v. Maugham, 265. Kean v. TUford, 344. Kearney v. Kearney, 57, 61. Keates v. Lyon, 351. Keating v. Condon, 24. V. Springer, 136. Keating Implement Co. v. Marshall Electric Light & Power Co., 14. Keats V. Hugo, 364. Keeler v. Eastman, 63, 64. V. Keeler, 15. Keepers, etc., of Harrow School v. Alderton, 63. Keepfer v. Force, 493. Keerl v. Fulton, 79. Kelchline v. Keichline, 437. Keily v. Monck, 173. Keith V. Horner, 192, 193. Keithley v. Wood, 18!t. Kelenk v. Town of Walnut Lake, 354. Keller v. Ashford, 208. Kellett V. Shepard, 92. Kelley v. BaU, 110. V. Canary, 85. Kellog V. Richardson, 393. Kellogg V. Malin, 446. T. Robinson, 446. Kelly V. Austin. 12. V. Baker, 122. V. Waite, 158. Kelsey v. Durkee, 16. Kemp V. Bradford, 288. V. Walker. 433. Kendall v. Hathaway, 13. V. Lawrence, 217, 382. V. Mann, 267. Kendrick v. Latham, 461. Kenege v. Elliot, 370. Kenlcott v. Supervisors, 211. Kennedy v. Borie, 206. V. Kennedy, 50, 265. V. McCartney's Heirs, 402. V. Moore, 231. 246. T. Northup. 224. Kenner v. Contract Co., 174. Kenny v. Udall, 72. Kent V. Agard, 120. V. Gerhard, 192. V. Hartpoole, 79. V. Hopkins, 481. V. Judkins, 361. V. Riley, 393. V. Waite, 352. Kentucky Railroad Tax Cases, 491. Kenyon v. Kenyon, 86, 99. V. Lee, 305. V. Shreck, 247. Kepple's Appeal, 395. Kerley v. Kerley, 115. Kern v. A. P. Hotaling, 230. V. Chalfant, 270. Kerngood v. Davis, 195. Kernochan v. Insurance Co., 199. Kerns v. Swope, 214, 437. Kerr v. Bell, 383. V. Day, 217. V. Freeman, 408. V. Kingsbury, 23. V. Kitchen, 216. V. Moon, 474. V. Shaw, 138. Kerr's Trusts, In re, 319. Kesner v. Trigg, 224. Kessler v Letts, 364. Ketchum v. Corse, 330. V. Shaw, 90. Kettleby v. Atwood, 23. Kevem v. W^ilUams, 327. Kew V. Trainor, 136. Keyport, etc., Steamboat Go. v. Farm- ers' Ti-ansp. Co., 6. Keys V. Test, 427. Keyser v. Mitchell, 41. Key's Lessee v. Davis, 384. Kidd V. Dennison, 63, 64. V. Lesler, 114. Kiddall v. Trimble, 111. Kieffer v. Imhoff, 358. Kiene v. Gruehle, 57. Kier v. Peterson, 7, 65. Kiernan v. Terry, 144. Kilbum V. Dodd, 473. Kilpatrick v. Baltimore, 171, Kimball v. Blaisdell, 456. V. Bryant, 443. V. Eaton, 429. 542 CASES CITBD. [The figures refer to pages.] Kimball v. Johnson, 438. V. liowlaud, lt>2. V. Sample, 420. Kimmel v. Benna, 454. Kincaid v. Howe, 417. King V. Carmichael, 462, 465. V. Foscue, 62. V. Fowler, 9. V, Gilson, 446. V. Howland, 9. V. Jones, 148, 450. V. King, 90. V, Meighen, 238. V. Miller, 63. V. Ransom, 134. V. Reed. 346. V. Smith. 467. V. Stetson, 83. V. Whittle. 62. V. Wilcomb, 17. Kingdom v. Nottle, 443, 450. Kingman v. Harmon, 290. Kingsbury v. Collins, 8. 160. Kings Co. Fire Ins. Co. v. Stevens, 422. Klngsley v. Ames, 163, 165. V. Holbrook, 8. V. Improvement Co., 360. V. Klngsley, 116. V. Purdom, 228. V. Smith, 75. Klnna v. Smith, 209. Kinney v. Ensign, 229. V. SlatteiT, 341. Klnsell V. Billmgs, 20. Kinsley v. Ames, 163, 165. Klnsolvmg v. Pierce, 111. Klntner v. Jones, 261. V. McRae, 105. Kip V. Bank, 264. Klrcher v. Schalk, 184. Kirehman v. Lapp, 18. Kirk V. Dean, 106. Kirkham v. Sharp, 361. Kirkman v. Brown, 463. Kirkpatrlck v. :Mathlot, 34L. Klrkwood v. Flnegan, 364. Klssam v. Barclay, 16. V. Dlerkes, 321. KltcheU V. Burgwin, 113, 118, 119, 121 V. Mudgett. 204,216. Kittle V. Van Dyck, 85, 245. Klttredge v. Woods, 18. Kleespies v. McKeuzk-, 159, Klein v. McNamara, ISS. Kleppner v. Laverty, 29d. Kliene v. Gruehle, 57. Kline v. Beebe, 75. Klock V. Walter, 187. Kloess V. Katt, 21. Knadler v. Sharp, 445. Knlckerbacker v. Seymour, 88. Knight V. Browne, 396. V. Elliott. 424. V. Land Ass'u, 403. V. Thayer, 452, 455. Knolles' Case, 376. Knowles v. Dodge, 320. V. Dow, 355. V. Kennedy, 447. V. Murphy, 144. V. Pierce, 140. V. Rabliu, 2:x>. V. Toothaker. 424, 453. Knox V. Easton, 1S3, 206. V. Hook, 464. V. Knox, 201. Koch V. Briggs, 238. Koehler v. Brady, 152. Koerper v. Railway Co., 220. Kolasky v. Michels, 135. Koon V. Tramel. 217, 224. Koplltz V. Gustavus, 159. Kortright v. Cady, 228. Kottenbrock v. Cracraft. SO. Kouvallnka v. Gelbel, 301. Kraemer v. Adelsberger, 190. Kramer v. Bank, 240. Kranlchfelt v. Slatteiy, 438. Kraut's Appeal, 360. Kremer v. Railway Co.. 167. Kripp V. Curtis. 359. Ivrouse V. Ross, 18. Kruse v. Scrlpp.s. 206. V. Wilson, 421. Kugel V. Painter, 136. Kuhlman v. Hecht. 359. Kuhn V. Kaler. 87. Kunes v. McCloskey. 494. Kurtz V. Hibner, 342. Kuydendall v. Devocmou, 109. Kyger v. Ryley, 184. Kyle v. Kavanngh, 412. CASES CITED. 543 [The figures refer to pages.] Lacey v. Newcomb. 134. Lackman t. Wood, 458. Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 7, 222. Lacy V. Comstock, 418. V. Lockett, 125. Ladd V Ladd, 314, 315. T. Wlggin, 209. Lade v. Slieperd, 362. Lafferty v. Milligan, 445. Laflin v. Griffiths, 15. Lahens t. Dupasseur, 273. Laidley v. Aiken, 226. Lake v. Doud, 191. Lake Erie & W. R. Co. v. Kennedy, 168. V. Whitham. 328, 438. Lake Superior Ship Canal, Ry. & Iron Co. V. McCann, 12. Lakln v. Dolly, 144. Lamar v. Scott, 83, 100. Lamb v. Burba nk, 450. V. Crosland, 353. V. Foss, 197. V. Jeffrey, 235. V. Miller, 175. V. Pierce, 214. V. Shays, 123. V. Tucker, 207. Lambert v. Kinnery, 123. V. Thwaites, 313. Lamberton v. Stouffer, 155. Lambertville Nat. Bank v. McCready Bag & Paper Co., 245. Lamb's Estate, In re, 114, Lamoimt v. Stimson, 214. L'Amom-eux v. Vandcuburgh, 213. Lampert v. Haydel, 41. Lampet's Case, 286, 305. Lampman v. Milks, 351. Lamprey v. State, 423. Lamson v. Drake, 234. Lancashire v. Mason, 149. Lancaster v. Dolan, 319. Lancaster County Bank v. Staufifer, 80. Lance's Appeal, 189. Landers v. Beck, 188. Landis' Appeal, 164. Landon y. Piatt, 13. Lane v. Debenham, 315w V. Duchac, 222. V. King, 10. V. Logue, 224. V. Ludlow, 194. V. Nelson, 153. V. Shears, 188. V. Woodruff, 449. V. Young, 144. Lane's Appeal, 475. Lang V. Cadwell, 207. V. Cox, 19. Langdou v. Ingram's Guardian, 40. V. Keith, 210. Langley ^. Baldwin, 296. V. Chapin, 494. V. Vaughn, 191. Lanham v. Wilson, 53. Lanpher v. Glenn, 133. Lanphere v. Lowe, 13. Lansing v. Goelet, 242. V. Van Alstjne, 140. Lansing Iron & Engine Works t. Walker, 12. Lautsbery v. Collier, 329. Large'8 Case, 395. Larned v. Donovan, 211, 220. Larrowe v. Beam, 97. Larsen v. Peterson, 354. Lasala v. Halbrook, 365. Lasher v. Lasher, 110, V. McCreery, 490. Lashley v. Souder, 171. Lass V. Sternberg, 250. Lassell v. Reed, 17, 18. Lassells v. Cornwallis, 320. Latham v. Atwood, 8. V. Henderson, 267, 268. V. Udell, 434. Lathrop v. Bampton, 265. V. Bank, 389, 452. V. Clewis, 146. Latimer v. Logwood, 461. Latta V. Clifford, 469. Laughlin v. Dock Co., 433. Laughlin v. Braley, 185. Laum'er v. Francis, 355. Lavelle v. Corrignio, 481. Law V. People, 494. Lawrence, In re, 104. V. Fletcher, 416. 544 CASES CITED. [The figures refer to pages.] Lawrence t. French, 141. V. Hammett, 145. V. Hebbard, 475, 478. V. Jenkins, 3G8. V. Springer, KiS. Lawson v. Hunt, 269. V. Morton, 98. V. Nicholson, 230. Lawton v. Lawton. 17, 20. V. Salmon, 15, 20. Laylin v. Knox, 203. Layson v. Grange, 122. Laytin, In re, 61. Lazell V. Lazell, 121. Leake v. Benson, 78. V. Robinson. 326. Leaper v. Neagle, 57. Leathers v. Gray, 296. Leavell v. Lapowski, 122. Leavitt v. Fletcher, 139. V. Lamprey, 107. Leaycraft v. Hedden, 256. Lechmere & Lloyd, In re, 289. Lee V. Bumgardner, 4. V. Clark, 226. V. Gaskell, 10. V. Lake, 363. V. Lindell, 93. V. McLaughlin, 142. V. Miller, 119. V. Patten, 267. V. Simpson, 309, 316. V. Vincent, 315. Leede's & Crompton's Case, 175. Leeds v. Wakefield, 32L Leeper v. Baker, 463. Le Franc v. Richmond, 429. Leggett V. Doremus, 307. Lcgh V. Hewitt, 140. Lehigh Coal & Nav. Co. v. Early, Lehman v. Nolting, 158. Lehndorf v. Cope, 47, 59. Leigh V. Dickeson, 342. V. Jack, 422. Leishman v. White, 141. Leiweke v. Jordan, 181. Leland v. Gassett, 17. Lemar v. Miles, 16. Lemon v. Graham, 37. Lenfers v. Henke, 88. 99. Lennig'B Ex'rs Y. White, 461. 175. Lennon v. Porter, 243. V. White, 438. Lennox v. Brower, 207. Leonard v. Burr, 178, 282, 329. V. Clough, 20. V. Colcord, 361. V. Leonard. 361, 467. V. Morris, 241. V. White, 426, 474. Lepage v. McNamara, 277. Lerned v. Morrill, 422. Lesley v. Randolph. 159, 160. Lessard v. Stram, 372. Lessee of Thompson's Heirs v. Green, 80. Lester v. Garland, 398. L'Etourneau v. Henquenet, 290. Le Tourneau v. Smith, 159. Lett V. Randall, 323. Levet V, Needham, 268. Levy V. Ladd, 493. V. Martin, 203. Lewes v. Ridge, 449. Lewis V. Baird, 220. V. Caperton's Ex'r, 193. Carstairs, 36L Coffee Co., 6. Jones, 18. Kirk, 211, 226. Klotz, 10. Lewellyn, 316b V. Lewis, 109. V. Lichty, 115. Lyman, 155. McNatt, 9. Nangle, 234. Payn, 141. Pier Co., 23. Rees, 261. Richey, 240. Sheldon, 145, 148. Smith, 109. Starke, 273, Stein, 369. Wilkins, 150. Lewis' Appeal, 338. Lewis' Lessee v. Beall, 411, Leydecker v. Brintnall, 1381. Leyman v. Abeel, 375. Liefe v. Saltingstone, 310. Liford's Case, 49. CASES CITED. 646 [The figures refer to pages.] Ligare v. Semple, 103. Liggins V. Inge, 3.")S. Liley v. Hey, 32S. Lillibridge v. Coal Co., 4. Linahan v. Barr, 12. Lincoln v. Perry, 479. Lincoln Bldg. & Sav. Ass'n v. Hass, 185. Linclauer v. Yoiinglove, 454. Liudeman v. Liudsey, 358, Linden v. Graham. 102. V. Hepburn, 148. Lindley v. Dakin, 444. V. Groff, 43(J. Lindsay v. Garvin, 229. Lindsley v. Brewing Co., 149. Linn Co. Bank v. Hopkins, 118. Lion V. Burtiss, 302. Lippencott v. Allander, 379. Liscomb v. Root, 340. Lissa V. Posey, 193. Litchfield v. Cud worth, 80. IJthgow V. Kavenagh, 38. Littell V. Jones, 125. Little V. Bennett, 313. V. Downing, 4G2, 4G8. V. Giles. 451. V. Macadaras, 139. V. Palister, 142. V. Willford, 277. Littlejohn v. Gordon, 241. Little Kock Granite Co. v. Shall, 152. Littleton v. Giddings, 214. Livett V. Wilson, 352. Livingston v. Bell, 394. V. Greene, 284. V. Ketcham, 375. V. Livingston, 264. v. Reynolds, 304. V. Tanner, 164, 165. v. Ten Broeck, 375. Livingston's Ex'rs v. Livingston, 145. Lloyd V. Carew, 323. v. Conover, 93. V. Hoo Sue, 235. V. Spillet, 253, 266. Lobdell V. Hayes, 106. Locke V. Caldwell, 240. V. Rowell, 59, 115, 118, 122. Lockett V. Lockett, 38. Lockhart v. Hardy, 205. Lockman v. Rellly, 247. REAL PROP. — 35 Lockwood V. Benedict, 246. Loddington v. Kinie, 287, 290. Loeb V. Drakeford, 431. V. Huddleston, 2.39. Loftis V. Loftis, 126. Lofton V. Murchison, 38. Loftus' Case, 71. Logan V. Bell, 309. V. Eaton, 453. V. Herron, 161. V. Phillips, 108. Lomas v. Wright, 292. 302. Lombard v. Culbertson, 222. London, Paris & American Bank v. Smith, 245. London & S. W. Ry. Co. v. Gomm, 327. Loudon & Westminster Loan & Dis- count Co. V. Drake, 22. Lone Star Brewing Co. v. Felder. 126. Long V. Beard, 380. V. Blackall, 323, 324. V. Cruger. 454. V. Dollarhide, 223. V. Fuller, 407. V. Long, 236. V. Mast, 464. V. Mellet, 235. V. Moler, 445. V. Wagoner, 420. Longfellow v. McGregor, 211. Longhead v. Phelps, 323. Loomer v. Wheelwright, 232. Loomis V. Brush, 387. V. Knox. 234. V. Pingree, 491. V. Wilbur, 61. Loosemore v. Knapman, 204. Lord V. Bunn, 397. V. Lord, 110. V. MoiTis, 240. Lord Altham v. Earl of Anglesey, 253. Lord Say & Seal's Case, 416. Loring v. Bacon, 366. V. Eliot, 280. V. Taylor, 130. Lorman v. Benson, 6. Losey v. Bond, 34. V. Houghton, 166. V. Hughes, 118. V. Jackson, 224. Maugham, 331. McReynolds, 245. Parsons, 492. Pine, 67. Price, 357. Roe, 23. Smith, 229, 333, 336. V. Stearns, 409. V. Tobin, 150, 281. V. Waddell, 5, 31. V. Waddell's Lessee, .399, 400, 402. Martin Clothing Co. v. Henly, 122. Martindale v. Kendrick, 484. Martin's Heirs v. Martin, 106. Martyn v. Clue, 136. V. Knowllys, 342. Marvin v. Ledwith, 288. V. Mining Co., 366. V. Smith, 107. V. redder, 230. Marwick v. Andrews, 176. Marwood v. Turner, 476. Maryland Mut. Ben. Soc. v. Clendinen, 310. Mary Portington's Case, 51. Ma sen v. Horton, 353. Mask V. Allen, 452. Mason v. Fenn, 143. V. Mason's Ex'rs, 273. V. White. 420. Massey v. Hubbard, 216. V. Huntington, 260. V. Modawell, 24. Massie v. Hiatt's Adm'r, 480. Massot V. Moses, 374. Masters v. Pollie, 4. Masterson v. Munro, 421. V. Pullen, 24. Masury v. Southworth, 137. Mathews v. Duryee, 90. Mathewson v. Smith, 90, 91. Mathis V. Board of Assessors, 6. V. Hammond, 301. V. Stufflebeam, 267. Matlock V. Lee, 101. 650 CASES CITED. [The figures refer to pages.] Matthews v. Hudson, 304. V. McPherson, 271, 272. V, Trust Co., 203. V, Ward, 31. V. Wliitaker, 13G. Matthias' Estate, In re, 481. Mattocks V. Steams, 71, 81. Matts V. Hawkins, 3G7. Maul V. Rider, 214. Maulding v. Scott, 286. Maule V. Ashmead, 138. V. Weaver, 432. Maundrell v. Maundrell, 311, 317, 322. Maupiu V. Emmons, 214. Maurhoffer v. Mittnacht, 238. :Mautz V. Buchanan, 96. Maxey v. O'Connor, 403. Maxon v. Gray, 95. Maxwell v. Newton, 250. Maj V. Le Claire, 215. V. Oil Co., 152. Mayburry v. Brien, 85, 89, 92, 93. :.Iayfield v. Maasden, 120. Mayham v. Coombs, 222. Mayho v. Buckhurst, 137. V. Cotton, lis. Maynard v. Esher, 364. V. Hunt, 230. y. Maynard, 434. Mayo V. Newhoff, 366. V. Woods, 493. Mayor of Kingston v. Horner, 352. Mayor, etc., of Allegheny v. Ohio & P. R. Co., 401. Mayor, etc., of Cartersville v. Lyon, 142. Mayor, etc., of City of Mobile v. Es- lava, 423. Mayor, etc., of Congleton v. Pattison, 137. Mayor, etc., of New Orleans v. U. S., 31. Mayor, etc., of New York v. Brook- lyn Fire Ins. Co., 136. V. Hamilton Fire Ins. Co., 136. V. Mabie, 138. V. Stuyvesant's Heirs, 324. Mayor, etc., of Thetford v. Tyler, 156. Maywood Co. v. Village of Maywood, 219. Meacham v. Buntling, 81. V. Steele, 236. Meader v Place, 114. Mebane v. Mebane, 397. Mechanics' & Traders' Fire Ins. Co. v. Scott, 140. Mecum v. Railroad Co., 442. Medary v. Gathers, 139. Medley \ Medley, 88, 306. Mooch V. Meech, 114. Meehan v. Bank, 242. V. Forrester, 187. V. Williams, 217. Meig's Appeal, 12. Meley v. Collins, 4.52. Mellon V. Reed, 344. Mellon's Appeal, 224. Melross v. Scott, 193. Melton V. Fitch, 487. Melvin v. Proprietors, 71, 73, 80, 458. V. Whiting, 352, 353, 355, 374. Jklemphis & C. R. Co. v. Neighbors, 174. Mendenhall v. Klinck, 166. Monger v. Ward, 148. Menzies v. Breadalbane, 472. Meraman's Heirs v. Caldwell's Heirs. 80, 81, 303. Mercer v. Selden, 75. V. Woodgate, 363. Merchants' Nat. Bank v. Stanton, 21. Merchants' & Farmers' Bank v. Her vey Plow Co.. 224. Mercier v. Railway Co., 37. Meredith v. Joans, 262. Meriwether t. Booker, 71. V. Howe, 71. Merket v. Smith, 270. Merreck v. Wallace, 221. Merrill v. Brown, 255, 260. V. Bullock, 164. V. Baffin, 480. V. Elliott, 181. V. Emeiy, 109, 286. V. Hayden, 477. V. Hurley, 181. V. Luce, 220. Merrills v. Swift, 435. Merriman v. Moore, 207. Merritt v. Bartholick, 210, 245. V. Clasou, 427. V. Disney, 38. V. Hosmer, 236. V. Hughes, 458. V. Judd, 16, 23. CASES CITED. 551 [The figures refer to pages.] Merritt v. Loan Co., 272. V. Morse, 447, 449. V. Scott, 61. V. Simpson, 3S3. Merritt's Lessee v. Home, 75. Mershon v. Castree, 196. Meserve v. Meserve, 96, 99. Meservey v. Snell, 449. Messer v. Reginnitter, 466. Messick v. Railway Co., 168. Metcalf V. Smith, 121. Methodist Church v. Remington, 389. Methodist Episcopal Church v. Clark, 277. Mettler v. Miller, 75. Metz V. Todd, 229. Metzger v. Huntington, 207. Meyer v. Glaus, 114. V. Henderson, 153. Mhoon V. Cain, 464. Michel V. O'Brien, 152. Michigan Ins. Co. of Detroit v. Brown, 240, 246. .Aiichigan Mut. Life Ins. Co. v. Conant, 214. V. Cronk, 21. Michigan Trust Co. v. Lansing Lum- ber Co., 196. Mickles v. Dillaye, 201. Middaugh v. Bachelder, 207. Middlebrook v. Corwin, 17. Middlemore v. Goodale, 450. Middleton v. Findla. 416. V. Middleton, 205. V. Pritchard, 5. Mldgley v. Walker, 343. Midland Ry. Co. v. State, 15. Midland Terminal & Ferry Co. v. Wil- son, 380. Mildmay's Case, 50, 82, 266, 427. Miles V. Barrows, 424. V. Miles, 64. Milford Sav. Bank v. Ayers, 122. Milhan v. Shai-p, 379. Millar v. Humphries, 459. Millard v. Truax, 202. Milledge v. Lamar, 88. Miller v. Aldrich, 198. V. Baker, 8, 17. V. Beverly, 100. V. Bingham, 213. V. Bradford, 221. Miller V. Claik, 249. V. Craig, 384. V. Curry, 201. V. Ewing, 454. V. Fletcher, 436. V. Hepburn, 471. V. Lapman, 358. V. Levi, 178. V. Lincoln, 201. V. Little, 127. V. Lullman, 434. V. Maguire, 140. V. Marckle, 114. V. Meers, 434. V. MiUer, 81, 306, 316, 455. V. Plumb, 20. V. Prescott, 136, 152. V. Railway Co., 166. V. Richards, 360. V. Shackleford, 80, 143, 303. V. Shields, 64, 139. V. Thompson, 206, 246. V. Tipton, 184. V. Waddingham, 13, 21. V. Wilson, 84, 266. MUler's Appeal, 120. Millett V. Davey, 201. V. Lagomarsino, 461, 462. MlUikan v. Patterson, 491. Milling V. Becker, 409. Mills V. Catlin, 443. V. Franklin, 38. V. Gore, 433. V. Learn, 380. V. Railway Co., 171. V. Sampsel, 138. V. Seward, 297. V. Smith, 223. V. Van Voorhies, 91. 247. Milner v. Clavert, 485. V. Shipley, 492. Milnes v. Branch, 378. Milton V. Turner, 221. Mims V. Mims, 221. Minard v. Burtis, 165. Miner v. Beekman, 202. V. Gilmour, 369. V. Lorman, 342. Mines, Case of, 7, 39. Minneapolis Mill Co. v. Minneapolis St St. L. Ry. Co., 108. V. Tiffany, 31. 552 CASES CITED. [The figures refer to pages.] Minneapolis W. Ry. v. Minneapolis & St. L. lly. Co., 107, 331. Minuig v.Batdorff, 288. Minot V. Broolis, 4G1. V. Taylor, 324. Minsliull V. Oakos, 136, 137. Winter v. Crouimelin, 403. Minton v. Steele, 471. Mission of Immaculate Virgin v. Cro- nin, 400. Missouri, K. & T. Ry. Co. v, Fulmore, 142. Missouri Pac. Ry. Co. v. Keys, 369. Mitchell V. Billingsley, 22. V. Campbell, 38. V. Coombs, 229. V. Kiunard, 454. V. Pillsbury, 445. V. Ryan, 435. V. Simpson, 297. V. Starbuck, 344. V. >Yarner, 3. 445. V. Wilson, 419. V. Winslow, 185. Mitchell's Lessee v. Ryan, 75. Mittel V. Karl, 335. Mizell V. Burnett, 171. Model Lodging House Ass'n v. Boston, 232. Moerlein v. Investment Co., 119. Moffatt V. Smith, 148. Moffat's Ex'rs v. Strong, 301, 302. Moffitt v. Lytle, 350, 418. Mohawk & H. R. Co. v. Clute, 25. Mohr V. Tulip, 384. MoUett V. Brayne, 415. Monig's Adm'x v. Phillips, 143. Monongahela Bridge Co. v. Kirk, 423, Monroe v. Trenholm, 396. Montag V. Linn, 429. Montague v. Railroad, 200. V. Selb, 341. Monteith v. Finkbeiner, 142. Montello, The, 6. Montgomery v. Beecher, 187. V. Chadwick, 201. V. Dorion, 388. V. Sturdivant, 419. V. Willis. 150, 100. Moodie v Reid, 318. Moody V. Fleming, 400. V. Harper, 111. Moody V. King, 77, 86, 831 V. McCleUand, 305. V. Mayor, etc., 142. Mooers v. Bunker, 344. Moomey v. Maas, 247. Moor V. Parker, 296. Moore. In re, 173, 242. V. Boyd, 158. V. Bunow, 481. V. Calvert, 79. V. Collishaw, 466. V. Crawford, 205. V. Dimond, 57, 316, 477. V. Esty, 85, 88. V. Frost. 111. V. Hazleton, 435. V. Horsley, 202. V. Hunter, 219. V. Jackson, 274. V. Kime, 228. V. Littel, 298. V. Mayo:-, etc., 84, 104. v. Miller, 133. V. Peacock, 115. V. Perry, 171. V. Pierson, 216. V. Rawson, 304. V. Reaves, 122. V. Rollins, 88. V. Simonson, 00. V. Sm.TW, 7. v. Smead, 121, 454. v. Smith, 10, 163. V. Starks, 246. V. Townshend, 03. V. Wade, 188. V. Walker, 206. V. Weber, 138. V. Wood, 143. Moores v. Moores, 317. Moore's Appeal, 207. Moore's Heirs v. Moore's DevisecB, 277. Moran v. Hagerman, 190. V. Lezotte, 425. Morecock v. Dickins, 225. Morehead v. Watkyns, 161. Morehouse v. Cotheal, 63. Moreland v. Page, 424. Morey v. Hoyt, 22. V. Sohier, 474. Morgan v. Conn. 98. V. Fisher, 270. CASES CITED. 653 [The figures refer to paffos] Morgan v. C.ronon. 329. V Hammett, 2;Jo. V. Heudrew, 'J7. V. Huduell, 343. V. Kiug, 6. V. Mason, 351. V. Milniau, 3ia V. Morgan, 48. V Powers, 157. V. Reading, 6, 423. V. Smith, 445. V SteU, 431. V. Varick, 14. Morice v. Bishop of Durham, 267. Morley v. Pincombe, 146. V. Rodgei-s, 145. Morling v. Brownson, 182. Moroney's Appeal, 225. Morrice's Case, 34(5. Morrill v. Kilner, 394. Morris v. Bolles, 330. V. Endlong, 201. V. Edgington, 300. V. Kettle, 141. V. McClary, 462. V. Nixon, 136. V. Ward, 123, 125. Morris' Appeal, 15. Morris Canal & Banking Co. v. Brown, ITS. Morrison v. Bean, 249. V. Berry, 13. V. Brand, 190. V. Brown, 219. V. Chadwick, 141, T. Funk, 225. V. Kelly, 217. V, Larkin, 491. V. Marquardt, 356. V. Morrison, 220, 429. T. Thistle, 72. Morrow v. Jones, 187, 201. Morse v. Aldricb, 136. V. Copeland, 166, 167, 358. V. Curtis, 213. V. Goddard, 138, 140, 145. V. Martin, 316.^ V. Mason, 477. V. Smith, 235. V. Whitcher. 197. Mortimer v. O' Reagan, 148. Morton v. Barrett, 255. V. Xoble, 106. V. Palmer, 163. Mosely v. Reily, 491. Moser v. Lower, 154. Moses V. Loomis, 152. V. MIcou, 396. Mosher v. Mosher, 87, 93. Mosher v. Yost, 68. Moshier v. Meek, 192, 193. V. Norton, 203. V. Reding, 133. V. Reynolds, 34. Moss V. Anderson, 429. V. Gallimore, 132. V. Moss, 267. V. Scott, 459. V. Sheldon, 419. V. Warner, 121. Motley V. Harris, 204. Mott V. Hagerman, 154. V. Maris, 240. V. Palmer', 3, 12. Moulton V. Robinson, 155. Mounsey v. Ismay, 354. Moursund v. Preiss, 122. Movan v. Hays, 262. Mowry v. Bradley, 93. Moynihan v. Allyn, 142. Mudd V. Mulliean, 67. Muehlberger v. Schilling, 192. ]Muir V. Berkshire, 203. :\Iulcahy v. Fenwick, 226. Muldrow V. Robison, 221. Mulford V. Brown, 230. Mulholland's Estate, In re, 8. Mullany v. Mullany, 82. Mullen V, M'Kelvy, 475. V. Strieker, 364. Muller V. Inderreiden, 123. Mullins V. Looke, 113. Mullock V. Souder, 475. Mulry V. Norton. 470. Mulvey v. Gibbons, 250. Mumford v. Brown, 135, * V. Whitney, 166. Munday v. O'Neil, 143. ^lunn V. Worrall, 418. Munroe v. Ward, 458. Munson v. Berdan, 316. V. Munson, 228. 554 CASES CITED. [The figm-es refer to pages.] Murdock v. Chapman, 185. V. Gifford, 13, 15, 20. V. Ratcliff, 150. Murphy v. Barnard, 220, 228. V. Galley, 189. y. Copeland, 423. V. Grouch, 123. V. Doyle, 460. V. Farwell, 237. V. Murphy, 270, 482. Murray v. Cherrington, 134, 159. V. Emmons, 131. V. Hall, 333. V, Hudson, 460. V. Jones, 302. V. Marshall, 208. V. Porter, 209. V. Sells, 117. Murrell v. Mathews, 49. Muse V. Hotel Co., 452. Musgrave v. Sherwood, 163. Musick V. Barney, 462. Mussey v. Pierre, 81. Mutton's Case, 299, 500. Mutual Benefit Life Ins. Co. v. Brown, 430. V. Howell, 241. Mutual Building & Loan Ass'n v. Wy eth, 238. Mutual Life Ins. Co. of New York v Dake. 221, 222. V. Everett, 318. V. Newell, 195. V. Shipman, 185. "Muzzarelli v. Hulshizer, 441. Myers v. Boyd, 438. V. Evans. 123. V. Ford, 113, 120, 121. v. Wright, 245. Myrover v. French, 435. N Naltner v. Tappey, 229. Nannock v. Horton, 317. Napier v. Howard, 301. V. Napier, 317. Napper v. Sanders, 290. 292. Nash V. Springstead, 145. Nason v. Allen, 95. National Bank v. North, 18. National Oil-Refining Co. v. Bush, 164. National Union Bank v. Segur, 137. National Union Bldg. Ass'n v. Brewer, 153, 434. Navassa Guano Co. v. Richardson, 184. Nave V. Berry, 143. Nazareth Literary & Benevolent Insti- tute V. Lowe, 90. Neal V. Bellamy, 154. V. Gregory, 452. Neale v. Mackenzie, 141. V. Neale, 415. V. Seeley, 372. Nebraska v. Iowa, 472. Needham v. Allison, 18. Neel V. McElhenny, 274, 275. V. Neel, 64. Neely v. Butler, 76. Neilson v. Lagow, 261, 262, 264. Neligh V. Michenor, 184. Nelson v. Atkinson, 189. V. Brown, 109. V. Eachel, 152. V. PInegar, 183. V. Pomeroy, 110. V. Russell, 284. V. Thompson, 153. V. Trigg, 467. Nelson's Heirs v. Boyce, 225. Neves v. Scott, 258, 259. Nevil v. Saunders, 256. Nevil's Case, .46. Nevitt V. Bacon, 241. New V. Potts, 312. V. Wheaton, 216, 217. Newburgh & G. Turnpike Koad Co. V. Miller, 879. Newcomb v. Harvey, 378. V. Ramer, 155. Newcomen v. Goulson, 360. New England Jewelry Co. v. Merriam, 231. New England Loan & Trust Co. v, Spitler, 384. Newhall v. Bank, 90. V. Pierce, 217. v. Wheeler, 261, 262. New Hampshire Land Co. v. Tllton, 422. Newis V. Lark, 395. CASES CITED. 555 [The figures refer to pages.] Newkerk v. Newkerk, 38, 173. Newman v. Anderton, 146. V. Chapman, 218. V. Newman, 109. V. Ilutter, 144, 152. V. Samuels, 438. New Orleans Canal & Banking Co. v. Hagan, 181. Newstead v. Searlos, 393. Newton v. Cubitt, 380. V. Manwarring, 232. New Vienna Bank v. Johnson, 191. New York, C. & St L. R. Co. v. Speel- man, 309. New York Real-Estate & Bldg. Imp. Co. V. Motley, 153. New York Security & Trust Co. v. Saratoga Gas & Electric Light Co., 182. New York & B. Bridge, in re, 104. New York & N. E. R. Co. v. Board of Railroad Com'rs, 3G0. New York & T. Land Co. v. Hyland, 341. Xichol V. Levy, 171. V. Thomas, 131. Nicholas v. Chamberlain, 352, 425. Nichols V. Baxter, 198. V. Denny, 343. V. Eaton, 41, 397. V. Glover, 193. V. Hooper, 326. V. Levy, 41. V. Luce, 351, 359, 360. V. Otto, 250. V. Reynolds, 464. V. Williams, 156. Nicholson v. Bettle, 302. V. Drennan, 58. V. Walker, 212. Nickells v. Atherstone, 409. Nicklase v. Morrison, 66. Nicoll V,. Railroad Co., 176, 281, 282. Nicolls V. Sheffield, 299, 326. Nightingale v. BurreU, 48, 301. V. Hidden, 78. Niles V. Nye, 91. Nitzell V. Paschall, 358. Niven V. Belknap, 451. Noble V. Bosworth, 20. V. Hill, 341. V. Sylvester, 13. Nocrosi V. Phillippi, 78. Nodine v. Greenfield, 246. Noel V. Henley, 321. V. Jevon, 89. Noffts V. Koss, 91. Noke V. Awder, 451. Nokes V. Gibbon, 151. V. Smith, 41. Nolan V. Grant, 217. Noonan v. Albany, 372. Norcross v. Griffiths, 5. V. James, 351. Norman v. Wells, 136, 137. Norman's Ex'x v. Cunningham, 78. Norris v. Harrison, 60. V. Milner, 176. V. Morrill, 162. V. Teamsters' Co., 380. V. Woods, 319. North V. Hammer, 460. North V. Philbrook, 36, 310. v. Strafford, 145. Northcut V. Whipp, 86, 88. Northrop v. Wright, 460. Northrup's Lessee v. Brehmer, 223. Norton, Succession of, 114. V. Henry, 236. V. Jackson, 447. V. Norton, 261. V. Yolentine, 372. Norwich Fire Ins. Co. v. Boomer, 199. Nottes' Appeal, 193. Nowlin V. Whipple, 167. Noyes v. Collins, 472. V. Hall, 246. V. Stone, 101. Nudd V. Hobbs, 354, 362. Null V. Howell, 92, 111. V. Jones, 241. Nunnelly v. Iron Co., 351. Nunn's Adm'rs v. Givhan's Adm'r, 71. Nuttall V. Bracewell, 369. Nutter v. Russell, 305. Nycum v. McAllister, 127. Nye V. Alfter, 461. V. Railroad Co., 104. o Oakford v. Robinson, 246. Oakland Cemetery Co. v. Bancroft, 13. 656 CASES CITED. [The figiu-es refer to pases.] Oaldey r. Oakley, 94, 105. Oatman v. Goodrich. 82. Ober V. Brooks, 135. Oberholtzer's Appeal, 220. Obert V. Obert, 342. O'Brien y. Barkley, 173. V. Kusterer, 16. Obrien v Obrien, G6. Oceau Grove v. Asbury Park, 4. O'Connor v. Kelly, 147. Odell V. Buck, 383, 384. V. Odell, 329, 331. Odessa Imp. tS: Irr. Co. v. Dawson, 171. O'Donnell v. Hitchcock, 11, 13. OEfut V. Cooper, 207. O'Gara v. Neylon, 111. Ogburn's Estate, In re, 122. Ogden V. Ball, 443. V. Chalfant, 242. V. Jennings, 42(3. V. Ogden, 78, 116. V. Stock, 21, 23. Ogden's Appeal, 296. Ogilvie T. Hill, 141. Ogle V. Turpin, 226. Ogontz Land & Imp. Co. v. Johnson, 172. Ohio & M. R. Co. V. Weber, 3. Gland's Case. 02. Olcott V. Gabert, 37. Ollphant V. Burns. 222, 4.50. Oliver v. Cunningham, 206. V. Piatt, 269, 270, 275. V. Pitman. 3.59. V. Sanborn. 214. V, Vance, 484. Olliffe V. Wells, 275. Olney v. Hull. 291. Olsen V. Webb, 142. Olson V. Huntamer, 472. V. Merrill, 5. Omaba & St. L. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 185. Omelv.nny v. Jaggers. 369. Onderdonk v. Gray, 201. Ondis V. Bates, 103. Oneal v. Mead. 205. O'Nell V. Vanderburg, 455. O'NeiU V. Clark, 208. Ontario Bank v. Mumford, 264. Onta.rio State Bank v. Gerry, 125. Onward Building Soc. v. Smithson, 454 Oregon Ry. & Nav. Co. v. Mosler, 21. Orford v. Benton, 79. Original Hartlepool Collieries Co. r- Gibb, 370. Orland's Case, 9. Orman v. Orman, 121. Ormerod v. Jlill Co., 369. Orme's Case, 253. Orr V. Shraft, 116, 117, 122. Orrick v. Durham, 193. Ortman v. Chute, 106. Osborne v. Cabell, 208. v. Humphrey, 140. V. Ketcham, 182. Osborne & Co. v. Schoonmaker, 121. Osgood V. Franklin, 308, 31L v. Howard, 19. V. Osgood, 191. Otis V. Browning, 42a V. Mcl^^llan, 324, V. Parshley, 92. V. Prince, 173. V. Smith, 474. V. Spencer, 214, 394. V. Thompson, 154. Ott's Ex'x V. King, 191. Ottumwa Lodge, etc., v. T^wls, .366. Ottumwa Woolen Mill Co. v. Hawley,. 12 Oulds V. Sansom, 387. Overand v. ;\Ienczer, 466. Overdeer v. Lewis, 165. Overfield v. Christie, 467. Overman v. Sasser, 20. Overman's Appeal, 396. Overseers of l^or of City of Boston r. Sears, 37. Overton v. I^acy, .333. Owen V. Association, 182. V. Evans, 211. V. Field, 177, 3.58. V. Hyde, 64. V. Peacock, 111. Owlngs V. Emery. 64. Ownes V. Ownes, 260. Oxley, Ex parte, 396. Pacific Gas Imp. Co. v. EUert. 5. Pacific Nat. Bank v. Windram, 396. Packard v. Ames, 170. CASES CITED. 557 [The figures refer to pages.] Packard v. Railway Co., 158. V. Ryder, 5. Packer v. Wyndbam, 71. Paddock v. Potter, 185, 433. Padelford v. Padelford, 61, 64. Padgett V. Cleveland, 21. Page V. Culver, 148. V. Wariug, 217. V. Webster, 341. Paice V. Archbishop of Canterbury, 2G0. Paige V. Paige, 2G8, 340. Paine v. French, 213. V. Lock Co., 14G. V. Mason, 220. V. Woods, 423. Paine's Case, 77. Palmer v. Bank, 329. V. Culbertson, 481. V. Fletcher, 3G4. v. Forbes, 14. V. Hawes, 120, 122. V. Palmer, 213. V. Williams, 215, 427. V. Young, 341. Palmeter v. Carey, 241. Pancake v. Cauffman, 187, 189. Pancoast v. Pancoast. 339. Panton v. Holland, 305. Papillon V. Voice, 297. Paradine v. Jane, 141. Pardee v. Lindley, 315. V. Treat, 208. v. Van Anken, 234. Pardo v. Bittorf, 121. Parfitt V. Member, 327. Park V. Baker, 16. Parke v Neely, 21G. Parkenham's Case, 137. Parker v. Barker, 451. V. Baxter, 494. V. Beasley. 230. V. Carter. 75. V. Cole, 474. V. Constable, 157. V. Dean, 125. V. Foote, 3G4. V. Griswold. 142. • V. Hayden, 110. V. Leach, 288. V. Lincoln, 182. V. Parker, 101, 285, 302. Parker v. People, 374. V. Railroad Co., 185. V. Randolph, 210. V. Welsted, 3(30. Parkes v. White, 321. Parkhurst v. Hosford, 214. Parkins v. Coxe, G4. I'arkist v. Alexander, 219. Parkman v. Bowdoin, 49. Parks V. Bi.shop, 361. V. City of Boston, 153. V. Newburyport, 372. Parmenter v. Webber, 148. Parret v. Shaubhut, 219. Parrish v. Parrish, 93, 98, 99. Pan-ott V. Barney, 139. V. Edmondson, 315. Parsons v. Copeland, 15, 19. V. Freeman, 204. V. Johnson, 3.59, V. Parsons, 481. V. Welles, 233. V. Winslow, Gl. Partee v. Stewart, 117. Parton v. Allison, 95, 99. Partridge v. Cavender, 397. V. Dorsey, 49. V. GUbert, 367, 3G8. V. Scott. 3G5. Paske V. Haselfoot, 313. Passumpsic Sav. Bank v. First Nat. Bank, 214. Patch V. Keeler. 98. Patrick v. Sherwood, 60. Patridge v. Cavender. 397. Patterson v. Arthurs, 446. V. Graham, 167. V. Park, 159. V. Patterson, 106. V. Trust Co., 185. Pattison v. Shaw, 247. Patton V. Eberhart, 206. Patty V. Pease, 229. Paul V. Carver, 422. V. Wltman, 449. Paxson V. Lefferts, 446. Paxton V. Kennedy, 146. Payne v. Atterbury, 194. V. Avery, 192. v. Becker, 95. V. Irvin, 142. V. James, 139. 658 CASES CITED. [The figures refer to pages.] Payne v. Lott, 402. V. Payne, 77, 78, 110, 487. V. Rogers, 142. Pay's Case, 301. Pea V. Pea, 20. Peabody v. Hewett, 41G. V. Minot, 343. V. Patten, 91. Peacock v. Eastland, 256. V. Purvis, 8, 14G. Pearce v. Turner, 134. Pearks v. Moseley, 325. Pearsall v. Post, 354. Pearson, In re, 396. V. Howey, 84. V. Pearson, 83. Pease v. Egan, 203. V. Kelly, 192. Peay v. Peay. 88. Peeare v. Choteau's Adm'r, 442. Pechaud v. Rinquet, 241, Peck V. Conway, 351. V. HerrlngtoD, 372. V. Ingersoll, 149. V. Jones, 448. V. Ledwidge, 140. V. Lockwood, 376. V. Manufacturing Co., 139. V. Walton, 407. Peckham v. Hadwan, 90. 92. Peirce v. Goddard, 10, 23. Pelan v. De Bevard, 116. I'ellizzarro v. Reppert, 109. Pells V. Brown, 302. Pelton V. Farmin, 248. Pence v. Arbuckle, 428. Pendill v. Maas, 143. V. Mining Co., 153. Pendleton v. Dyett, 141. V. Vandevier, 59. Peninsular Iron Co. v. Eells, 190. Peninsular Stove Co. v. Roark, 125. Penn v. Divellin, 145. Penn v. Ott, 184. Penn v. Preston, 135. Pennant's Case, 175. Penniman v. Cole, 394. V. French, 8. Pennington's Ex'rs v. Yell, 95. Pennsylvania R. Co. v. I'arke, 179. Penny v. Corwithe, 428. Pennybecker v. McDougal, 13. Penry v. Richards, 421. Pentland v. Keep, 353, 359. People V. Appraisers, 5. V. Board of Education of Grand Rapids, 34. V. Campbell, 492. V. Canal Appraisers, 423, .V. Conklin, 388. V, Darling, 159. V, Elk River Mill & Lumber Co., 6, 369. V. Ferry Co., 400. V. McClay, 113. V. Organ, 428. V. Piatt, 5. V. Plumsted, 124. V, Robertson, 148. V. Tibbetts, 6. V. Van Rensselaer, 459. V. White, 178. People's Bank v. Mitchell, 152. People's Ice Co. v. The Excelsior, 6. Peoria & P. U. Ry. Co, v. Tamplin, 461. Pepper v. Pepper, 340. v. Thomas, 108. Pepper's Will, 318. Perkins v. Nichols, 267. V. Quigley, 118. V. Swank, 17. Perley v. Chandler, 362. Pernam v. Wead, 359, 425. Perrin v. Blake, 290. V. Carey, 277. V. Garlield, 349, 353. V. Lepper, 148. Perrine v. Cheeseman, 430. Perrot v. Perrot, 66. Perry v. Ashby, 127. V. Carr, 17, 157. V. Grant, 193. V. Hale, 475. V. Hamilton, 66. V. Kline, 49. V. Perryman, 108. V. Price, 406, 411. V. Ross, 124. V, Terrel, 9, 61. Peifsons V. Persons, 268. Peter v. Beverly, 308, 315. V. Kendal, 879. CASES CITED. 55 U [The figures refer to pages.] Peters v. Bridge Co., 210. V. Jones, 468. Peterson v. Clark, 304. Petro V. Cassiday, 175. Petry v. Ambroslier, 193. Pettee v. Hawes, 418. Pettibone v. Edwards, 245. PettingiU v. Devin, 223. V. Hubbell, 245. Petty V. Barrett, 118. V. Malier, 95, 485. V. Molier, 75. Peugh V. Davis, 200, 206. Pewaukee Milling Co. v. Howitt, 136. Peyton v. Bury, 173. V. Jeffries, 98. Pfanner v. Sturmer, 9. Pfeiffer v. Brown, 372. Pharis v. Leachman, 94. Phelan v. Boyd, 21. V. Brady, 216. V. De Martin, 206. V. Fitzpatrick, 188, 235. Phelan's Estate, In re, 121. Phelps V. Chesson, 174. V. Fockler, 226. V. Nowlen, 371. V. Phelps. 89, 282, 284. V. Randolph, 142. V. Rooney, 122. Phene v. Popplewell, 409. Phene's Trusts, In re, 313. Phifer v. Barnhart, 223. Philadelphia v. Girard's Heirs, 328. Philadelphia Trust, etc., Co. v. Lip- pincott, 315. Philbrook v. Delano, 192, 266. Philips V. Bank, 210, 211. V. Leavitt, 234. Philleo V. Smalley, 122. Phillips V. Brown, 309. V. Clark, 452. V. Costley, 216. V. Covert, 157. V. Ehrmanu, 142. V. Ferguson, 173. V. Green, 382. V. Harrow, 397. V. Library Co., 142. V. Roquemore, 225. V. Sherman, 404. V. Stauch, 123. V. Stevens, 153. Phinizy v. Clark, 209. Phipps V. Acton, 119. v. Ennlsmore, 396. Pibus V. Mitford, 297. Picard v. Montross, 487. Pickard v. Collins, 142. Picken v. Matthews, 325. Pickens v. Webster, 7. Pickens' Estate, In re, 481. Pickens' Ex'rs v. Kniseley, 73. Pickering v. Pickering, 342. Plckwell V. Spencer, 38. Pierce v. Brown, 438. V. Chace, 338. V. Drew, 3G2. V. Dyer, 366, 367. V. Goddard, 23. V. Hakes, 78. V. Indseth, 429. Pierson v. Armstrong, 400. V. Lane, 53. Pifer V. Ward, 90. Piggot V. Mason, 135, 13G. V. Penrice, 318. Pike V. Gleason, 232. V. Robinson, 463. Pike's Will, In re, 384. Pile V. Pedrick, 367. Pilldngton v. Boughey, 267. PiUars v. McConnell, 270. Pillow V. Roberts, 429. Pillsbuiy V. Mitchell, 135. Pinchain v. Collard, 192. Pinckney v. Burrage, 457. Pine V. Leicester, 378. Pinkerton v. Tumlin, 120. Pinkiun v. City of Eau Claire, 176. Pinnington v. Galland, 360. Pinuock V. Clough,' 263. Piper V. Johnston, 123. Pit V. Chick, 374. Pittman v. Sofley, 214. Pitts V. Lancaster Mills. 309. Pittsburg Consol. Coal Co. v. Green- lee, 149. Pitzman v. Boyce, 168. Pixley V. Clark, 371. V. Hugging, 225. Pizzala v. Campbell, 94. Planters' Bank v. Davis, 79. Plate V. Koehler, 125. Platner v. Sherwood, 85. Plato V. Roe, 187. 560 CASES CITED. [The figures refer tc pages.] riatt T. Squire, 213, 234. Pleasant v. Benson, 1G2. Plimpton r. Insurance Co., 19S. Ploen V, Staff, 135. Plucbe V. Jones, 457. IMumer v. Guthrie, 188. V. Plumer, 17. V. Robertson, 217. Plunket V. Holmes, 301. Poe V. Paxton's Heirs, 193. PofeTie V. Clark, 244, 245. Poignand v. Smith, 195, 4G8. Pointlexter v. Blackburn, 9, G2. Pollard V. Barnes, 352. V. Cocke, 223. V. Hagan, 5. V. ^Merrill, 72. V. Shaaffer, 65, V, Shaffer, 139. V. Slaughter, 88. Polley V. Johnsou, 8. Pollock V. Maison, 240. V. Speidel. 48, 49. Polyblauk v. Hawkins, 73. Pomeroy v. Pomeroy, 105. Pomfret v. Perring, 317. V. PJcroft, 35G. Pomroy v. Stevens, 216. Pond V Bird, 474. V. Eddy, 211. Ponder v. Cheeves, 462. Pool V. Blakie, 78, 82. Poole V. Beutley, 131. Poole's Case, 16. Poor V. Horton, 84. V. McClure, 5. Pope V. Hanmer, 459. V. Harkins, 143. V. Mead, 05. V. Pope, 215. Poppers V. Meaglier, 130, 150. Popplewell V. Hodkinson, 37L. Porch V. Fries, 83. Porter v. Bank, 72. V. Fox, 323. V. Greene, 224. V. Hill, 334, 343. V. Lazear, 104. V. Merrill, 1G3. V. Thomas, 316. V. Wheeler, 452. Portington's Case, 51. Posey V. Cook, 255. Post V. Hover, 324. V. Kearney, 148. V. Pearsall, .''.50. V. Velter, 135. Postal Tel. Cable Co. r. W. U. TeL , Co., 13G. Posten V. Miller, 233, 235. Postlethwaite v. Payne, 370. Potter v. Couch, 311, 395. V. Cromwell, 10. V. McDoweU, 393. v. Thornton, 389. V. Wheeler, 93. Potts V. Davenport, 116, 119, 121. v. Gilbert, 4G2, 467. V. Plaisted, 230. Potts' Appeal, 49. Pottstown Gas Co. v. Murphy, 371. Potwin V. Blasher, 447. Poull V. Mockley, 355. Powcey V. Bowen, 319. Powell V. Bergner, 19. V. Gossom, 75. 76, 78. V. Manufacturing Co., 97, 107. V. Patison, 242. V. Rich, 8. Powell's Trusts, In re, 329. Powers V. Harlow, 360. V. Insurance Co., 198. V. Lumber Co., 234. V. McFarran, 224. V. Sample, 113. Powles V. Jordan, 321. Povvley V. Walker, 140. Prater v. Hoover, 79. Pratt V. Colt, 274. V. Curtis, 393. V. Felton, 109. V. Leadbetter. 290. V. Levan, 149. V. Sweetser, 357. Pratt's Lessee v. Flamer, 48. Preiss v. Parker, 367. Prentice v. Wilson, 156. Preschbaker v. Fearaan, 189. Prescott V. Boucher, 146 v. Elm, 161. V. Nevers, 458. V. Tnieman, 445. V. White, 143, 358, 309, 373. CASES CITED. 561 [The figures refer to pages.] President, etc., of City of Cincinnati v. White, 303. President, etc., of Lincoln & K. Banli V. Drummond, 175. Pies di'n , etc., of Ntwburgli & Cochee- tou Turnpike Road v. Miller, 380. Preston v. Bowmar, 424. V. Carr, 306. V. Case, 211. V. Robinson, 336. Prewit V. Wilson, 394. Prewitt V. Ashford, 454. Price V. Brown, 460. V. Cutts. 191. V. Hall, 293, 341. V. Haynes, 439. V. Hobbs. 84, 97. T. Jenkins, 394. T. Norwood, 175. V. Pickett, 9, 60, 62. V. Price's Heirs, 25. V. Railroad Co., 436. V. Wood, 182. Price's Appeal, 474. Prichard v. James, 53. Prickett's Lessee v. Parker, 479. Priddy v. Griffith. 88. Priest V. Cummings, 103. V. Lackey, 473. V. Wheelock. 229. Priestley v. Holgate, 173. Prince v. Case, 167. Prindle v. Anderson, 162. Prlngle v. Dunn, 213, 215, 219. Pritchard v. Palmer, 439. Probett V. Jenkinson, 421. Proctor V. Blgelow, 111. V. Bishop of Bath & Wells, 325. V. Hodgson, 360. V. Machine Co., 453. Prodgers v. Langham, 393. Proffltt'V. Henderson, 62. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 380, 402. Proprietors of Church In Brattle Square v. Grant. 283, 2S4, 292. 325. Proprietors of Enfield v. Permit, 37. Proprietors of Liverpool Wharf v. Pres- cott, 453. Proprietors of Mill Dam Foundry v. Hovey, 430. REAL PROP.— 86 Proprietors of Town of Shapleigh y. Pilsbury, 255. Proprietors of Township No. 6 v. Mc- Farland, 458. Prospect Park & C. I. R. Co. y. Coney Island & B. R. Co., 489. Prosser v. Wapello, 380. I'rout V. Roby, 72. V. Wiley, 383. Pruitt V. Holland, 53. Prutsman v. Baker, 433, 434. Pry V. Pry, 219. Puckett V. McDanlel, 340, 463. Pugh V. Arton, 22. V. Bell, lOG. Pugsley V. Aikln, 160. Pullen V. Pullen, 104. V. Rianhard. 255. Pulling's Estate, In re. 105. Purdy V. Huntington, 233. Purefoy v. Rogers, 285. Putnam v. Putnam, 477. V. Ritchie, 335. Putney v. Dresser, 334. Putzel V. Van Brunt, 420. Pyer v. Carter, 852. Pyle V. Pennock, 15. Pynchon v. Stearns, 63. Pyne v. Dor, 62. Q Queen's College v. Hallett, 145. Quinby v. Paper Co., 13. Qulnnerly v. Qulnnerly, 222. Quinn's Estate, In re, 72. R Rabb v. Grlflin, 75. Raby v. Reeves, 453. Race v. Ward, 373. Ragor V. McKay, 145. Ragsdale v. O Day, 85, 89. Railroad Co. v. Carr, 369. Ralls V. Hughes, 111. Ralph, Ex parte, 326. Ralston v. Ralston, 101. Rambo v. BpII. 94. Ramboz v. S to well, 455. 562 CASES CITEC. [The figures refer to pages.] Ramsey v. Glenny, 4(i4. V. Merriam, 250. Randall v. Josselyu, oUl. V. McLaughlin. 3o2. V. I'hillips, 2GU. Randolph v. Doss, 85. Rands V, Kendall, 84, 184. Rank V. Hanna, 105. Rankin v. Black, 330. V. Miller, 223. Ranney v. Hardy, 217. Ratcliffe V. Marrs, 419. V. Mason, 85, 93. Rausch, In re, 107. V. Rausch, 397. Rautenbusch v. Donaldson, 78. Rawley v. Holland, 299. Rawlings v. Adams, 73, 78, 105, V. Lowndes, 85. Rawlins v. Buttel, 103. Rawson V. School Dist. 170. Ray v. Alexander, 53. V. Johnson, 140. T. Pearce, 240. V. Pung, 105. V. Scripture, 244. Raybold v. Raybold, 261. Raymond v. Glover, 433. V. Hodgson, 148. V. Holden, 455. V. Palmer, 195. V. Raymond, 443. V. White, 19. Rayner v. Lee, 95, 491. Raynor v. Wilson, 434. Razor V. Razor, 174. Read v. Stedman, 280. Reade v. Johnson, 378. V. Livingstone, 393. Reading v. Finrey, 491. Ready v. Kearsley, 261. Reardon v. Murphy, 172. Reasoner v. Edmundson, 444. Reaume v. Chambers, 37. 75. Reckhow V. Schanck, 163. Rector v. Waugh, 37, 343. Rector, etc., of King's Chapel v ham, 176. Redden v. Miller, 215. Rede v. Farr, 174. Redlon V. Barker, 13. Redwine v. Brown, 135. Reece v. Miller, 5. Reed v. Farr, 453. V. Inhabitants of Northfleld, 362. v. Kemp, 219, 437. V. Kennedy, 92. V. Reed, 79, 202, 474. V. Shepley, 89. V. Whitney, 106. Reeder v. Barr, 403. V. Purdy, 165. V. Sayre, 9. Reed's Ex'rs v. Reed, 64. Reel V. Elder, 103. Rees V. Lowy, 153. v. McDaniel, 472. Reese v. Kinkead, 192. V, Smith, 451. V. Waters, 8L 100. Reeve v. Long, 290. Reeves v. McComeskey, 139, 153. Reg. V. Inhabitants of Cluworth, 870. V. Pratt, 362. Regan v. Light Co., 359. Reichenbach v. Railway Co., 171. Reichenbaeker v. Pahmeyer, 142. Reid V. Parsons, 151. Reiff V. Horst, 107. V. Reiff, 9, 62. Reigard v. McNeil, 188. Reilly v. Phillips, 249. Reimer v. Stuber, 353. Reinback v. Walter, 119. Reinhart v. Lantz, 42. Reinoehl v. Shirk, 48, 302. Reitenbaugh v. Ludwick, 200. Reitzel v. Eckard, 92. Remington Paper Co. v. O'Dougherty, 239. Rempt V. Geyer, 189. Renals v. Cowllshaw, 351. Rennie's Estate, In re, 61. Rennyson's Appeal, 364. Renoud v. Daskam, 135. Renshaw v. Bean, 363. Renwick v. Wheeler, 228. Renziehausen v. Keyser, 261. Rerick v. Kern, 168. Pel- Retherick v. Chappel, 327. Reusens v. Lawson, 461. Rex V. Burchell, 395. V. Inhabitants of Aldborough, 147. V. Inhabitants of Leake, 362. V. O'tley, 13. Reybm-n v. Wallace, 60. CASES CITED. 563 [The figures reiet to pages.] Reynolds v. Black, 215. V. Crispin, 287. V. Harris, 490, V. Hull, lis. V. McCurry, 95. V. New Yorli Security & Trust Oo., 12. V. Reynolds, 92, 103. V. Webster, 225. V. Wilmeth, 342. Rliea V. Meriditti, 104. Khett V. Mason's Ex'r, 262. Kliines v. Baird, 188. Ithiodes V. McOormacli;, 122, 366. V. McCoruaiclx, 120. V. Otis, 6, 168. V. Whitehead, 293. V. Williams, 117. Ricard v. Williams, 352. R'ce V. Adams, 15. V. Nelson, 111. V. Railroad Co., 176. V. Railroad Corp., 171. V. Rice, 270. Rich V. Bolton, 100. V. Braxton, 493. V. Cockell, 387. V. Gilkey, 477. V. Hobson, 154. y. ZeUsdorlf, 418. Richard v. Bent, 445. V. Hui)p, 353, 357. Richards v. Chace, 123. V. Miller, 474. V. Richards, 110, 171, 480. V. Rose, 3G5. v. Thompson, 247. Richardson v. Copeland, 14. V. Gifford, 132. V. Harms, 99. V. Hockenhall, 231. V. Langridge, 159, 160. V. Noyes, 302. V. Pate, 386. V. Richardson, 302, 341. V. Sharpe, 317. V. Skoltield, 91, 105. V. Wheatland, 290, 291, 298. V. York, 57. Richeson v. Crawford, 204. Richmond v. Voorhees, 437. Rickard v. Rickard, 345, 464. Rickert v. Madeira, 212. Ricketts v. Loftus, 313. V. Railroad Co., 309. Rico Reduction & Mining Co. v. Mus- grave, 342. Riddell v. Riddell, 93. Rider v. Bagley, 242. Ridler, In re, 393. Ridley, In re, 326. Riehl V. Bingenheimer, 123. Riehle v. Heuliugs, 357. Rieman v. Wagner, 466. Riggin V. Love, 419. Riggs V. Sally, 42. Right V. Bucknell, 455. V. Darby, 161. Righter v. Forrester, 225, 297. Rigler v. Cloud, 78. Rigney v. Water Co., 369. Rigor V. Frye, 464. Riley v. Water Power Co., 7. Riley's Adm'r v. Riley, 71. Ring V. Biu^, 123, 124. V. Hardwick, 325. Ringgold V. Biyan, 216. Ripley v. Waterworth, 68. Risien v. Brown, 168. Rising V. Stannard, 157. Risk V. Hoffman, 207. Ritchie v. Ege, 489. V. Railway Co., 171. Ritger v. Parker, 358. Rittgers v. Rittgers, 262. River v. Withers, 6. Rivers v. Adams, 374. V. Gooding, 110. Roach V. Davidson, 94. V. Wadham, 312, 316. Roan V. Holmes, 91. Roane v. Baker, 225. Robarts v. Haley, 268. Robbins, In re, 422. V. Eaton, 382. v. Kinzie, 107. V. Robbins, 90, 104. Roberts v. Cambridge, 489. V. Fleming, 202. V. Greer, 114. V. Halstead, 227. V. Jackson, 152, 435. V. Railroad Co., 454. V. Stevens, 896. V. Thorn, 341. v. Whiting, 59, SO. 5Gi CASES CITED. [The figures refer to papres.] RoDertson v. Biddell, 144. V. Corsett, lt>. V. Hiiy. 428. V. Norris. 71, 80. V. Stevens, 79. V. Wilson, 3U5. V. Wood, :i74. Robeson v. Pitt(>uger, 364. Robie V. Cbapmau, 78. Robinson v. Baker, 115. V. Bates, 106. V. Beard, 134. V. Buck, 82. V. Ezzell. 7. V. Fife, 237, 238. V. Leach, 125. V. Litton, 304. V. Miller, 92, 94, 99. V. Mining Co., 144. V. Robinson, 57. V. Schley, 473. V. Swearingen, 121. V. Wood, 302. Robinson Bank v. Miller, 206. Robinson's Estate, In re, 53. Robison v. Codman, 89, 334. Rochford v. Hackman, 396. Rochon V. Lecatt, 81. Rockingham v. Fenrice, 60. Rockwell V. Hobby, 192. .Rodgers v. Burchard. 223, 224. V. Rodgers' Adm'r, 487. V. Wallace, 307. "Roe V. Archbishop of York, 409. V. Ashburner, 132. V. Galliers, 396. V. Grew, 297. V, Harrison, 152, 396. V. Jeffery, 327. V, Lees, 160. V. Tranmer, 254. V. Ward, 130. Roet V. Somerville, 62. Regan V. Walker, 175, 186, 188, 2(^7. Rogers V. Brokaw, 12, 13, 21. V. Brown, 158. V. Cruger, 431. V. Donnellan, 267. V. Fire Co., 299, 411. V. Gillinger, 14. V. Grigg, 146. V. Herron, 235. Rogers v. Ilillhouse. 427. V. Humphreys, 132. V, Johnson, 468, 487. V. Jones, 216. V. Moore, 57, 59. V. Rawlings, 404. V. Rogers, 303. V. Smith, 474. V. Tucker, 226. V. Walker, 384. Roggenkamp v. itoggenkarap, 269. Rohn V. Harris, 289, 345. Rolfe V. Harris, 151. Roome v. Phillips, 2S9. Rooney v. Crary, 2U0. Roosevelt v. Bank, 230. V. Thurman, 395. Roper V. Lloyd, 141. Rose V. Chandler, 247. V. Daniel, 469. V. Davis, 144. V. Hawley, 174. V. Sanderson, 80. V. W^atson, 194. Roseboom v. Van Vechten, 55. Rosenblat v. Perkins, 159. Rosenthal v. Mayuugh, 110. Roseville Alta Mia. Co. v. Iowa Gulch Min. Co., 13. Rosher, In re, 395. Ross V. Adams, 407. V. Drake, 288. V. Dysart, 138. v. Gill, 131. v. Overton, 153. V. Porter, 121. V. Whitson, 192. V. Wilson, 93. Rosse's Case, 67. Rossetter v. Simmons, 473. Rosslter v. Cossit, 90. Rothschild v. Railway Co., 241. Rothwell V. Dewees, 341. Roundel v. Currer, 173. Round Lake Ass'n v. Kellogg, 130. Rountree v. Denson, 455. Rous V. Jackson, 329. Roush v. Miller, 85. Routledge v. Dorril. 327, 329. Rowbotham v. Wilson, 366. Rowe V. Beckett, 412. V. Bridge Corp., 6. CASES CITED. 665 [The figures refer to pages.] Rowe V. Hamilton, 108. V. NaUy, 857. Rowell V. Jewett, 172, 201. V. Williams. 206. Rowland v. Carroll, 98. V. Warren, 54, 179. V. Williams, 460, 465. Roy V. Monroe, 23. Royce v. Guggenheim, 141. Royston v. Royston, 71. Rozell V. Vansyckle, 265. Rubens v. Prindle, 208. Ruch V. Rock Island, 174. Ruckman v. Astor, 200. V. Outwater, 17, 18. Rudebaugh v. Rudebaugh, 288. Rue V. Dole, 188, 190. Rugan V. Sabin, 469. Ruggles V. Lawson, 434, 436. Rumfelt V. Clemens, SSlJ. Rumsey v. Railway Co., 5. Rimyan v. Stewart, 91. Rupp V. Eberly, 301. Rush V. Lewis, 314. Rusk V. Fenton, 385. Russ V. Perry, 110. V. Steele, 448. V. Stratton, 433. Russel V. Gulwel, 135. Russell, Ex parte, 894. V. Allard. 144. V. Bank, 64. V. Coffin, 412. V. Erwin's Adm'r. 144. V. Fabyan, 145, 163. V. Jackson, 267, 360. V. Petree, 214. V. Scott, 370. V. Southard, 186, 188. V. Woodward, 396. Russell's Appeal, 219. Rutherford v. Greene's Heirs, 37. Ryan v. Adamson, 198. V. Andrews, 484. V. Brown, 6. V. Dox, 188, 27L V. Doyle, 269. V. Freeman. 74. Ryder v. Rush, 214. Ryerson v. Quackenbush, 148, 877. Rymer v. Stanfield, 477. 6 Sacheverel v. Frogate, 376. Sackett v. Mallory, 172. V. Sackett, 62. Sadler v. Pratt, 319. Saenger v. Nightingale, 244. Safiford v. Sa fiord, 92. Sager v. Tupper, 230, 235. Saint V. Pilley, 22. St. Amour v. Rivard. 327. St. Clair v. Williams, 96. St. Felix V. Rankin, 346. St. John V. Conger, 220. St. Louis. A. T. H. R. Co. y. Nugent, 462. St. Louis Iron & Maeh. Works v. BZim- ball, 219. St. Louis University v. McCune, 465. St. Paul's Church V; Attorney General, 477. Salmon v. Bennett, 393. V. Hoffman, 192. Salomon v. O'Donnell, 159. Salter v. Boteler, 68. V. Sample, 23. Saltmarsh v. Smith. 95. Saltonstall v. Sanders, 276. Saltoun V. Houstoun, 145. Sammes' Case, 254, 334. Sampson v. Cotton Mills, 10, 22. V. Easterby, 137. V. Henry, 165. V. Hoddinott, 369, 370, Samson v. Rose, 9, 143. Sanborn v. Adair, 223. V. Sanborn, 187. V. Woodman, 175. Sand V. Hughes, 464. Sanderlin v. Sanderlln's Adm'r, 113. Sanders v. Comish, 327. V. Ellington, 9. V. McMillian, 98. V. Partridge. 149. V. Wilson, 201. Sandes* Case, 266. Sandford v. McLean, 90, 104. San Diego v. Southern Pac. R. Co., 492. Sands v. Hughes, 464. V. Pfeiffer, 21, 23. 566 CASES CITED. [The figures refer to pases.] Sands AJe Brewing Co., In re, 198. Sandwich v. Railway Co., 309. Sandwich Manuf g Co. v. Zellmer, 452, 4:)"). Sanford v. Goodell, 397. V. Harvey, IGl. V. Hill, 236. V. Jackson, 110. V. Johnson, 159. V. Lackland, 397. San Pedro & Caiion del Agua Co. v. U. S., 403. Sapp V. Morrill, 493. Sargeant v. Rowsey, 237. Sargent v. Parsons, 341. V. Towne, 39. V. Wilson, 247. Sarles v. Sarles, G3. Sarsfield v. Nealey, 159. Satchell v. Doram, 219. Satterfield v. Maloue, 215. Saucer v. Keller, IGT. Saulet V. Shepherd, 471. Saunders v. Blythe, 106. V. Railway Co., 5. V. Schmaelzle, 272. V. Vautier, 326. Saundeys r. Oliff, 375. Savage v. Burnham, 109. V. Lee, 255. V. Mason, 367. Savile V. Blacket, 321. Savings & Loan Soc. v. Burnett, 202, 224, 225. Sawley v. Northampton, 285. Sawyer v. Cubby, 323. V. Hanson, 130. V. Kendall, 467. V. Twiss, 18. Say V. Stoddard, 157. Sayer v. Sayer, 318. V. Tnpper, 230. Sayers v. Hoskiuson, 64. V. Wall, 78. Sayles v. Purifying Co., 13. Sayre v. Townsend, 267, 268. Scales V. Cockrill, 467. Scammell v. Wilkinson, 387, Scammon v. Campbell, 97. Scania n v. Cobb, 385. V. Wright, 380, 388. Scanlon v. Walshe, 481. Scarry v. p:idridge, 246. Scatterwood v. Edge, 323. Sch.Tofor V. Schaefer, 57. Scliaefller v. IMichling, 445. Schaffcr v. Kettell, 478. Scliall V. Railroad Co., 470. SchearfE v. Dodge, 230. Schedda v. Sawyer, 403. Scheetz v. Fitzwater, 178, 282. Schenck v. Ellingwood, 318. Schenk v. Peay, 491. Schenley v. Com., 353. Schermerhon v. Miller, 73, 74, 80. Schermerhorn v. Miller, 74. V. Negus, 395. Schieffelin v. Cai-penter, 409. Schifferstein v. Allison, 240. Schilling v. Holmes, 138. V. Rommger, 370. Schlntz V. McManamy, 428. Schlesinger v. Railroad Co., 174- Schley v. Lyon, 255. Schmidt v. Niemeyer, 492. V. Quinn, 360. Schmitt V. Schmitt, 430. Schuebly v. Schnebly. 87, 96. Schneider v. Hoffmann, 125. Schnitzius v. Bailey, 357. Schofield v. Homestead Co., 443. School Committee v. Kesler, 429. School Dist. V. Lindsay, 168. v. Trustees of First Baptist Church of Normal, 176. SchoiT V. Etling, 110. Schroeder v. Bauer, 126. Schulenberg v. Harriman, 176. Schultz V. Schultz, 388. Schultze V. Houfes, 215. Schuster v. Schuster, 81. Schutt V. Lai-ge, 213. Schuyler v. Broughton, 339. V. Smith, 164. Schuylkill Nav. Co. v. Stoever, 361. Schwab Clothing Co. v. Claunch, 249, 389. Schwatken v. Daudt, 109. Schweiss v. Woodruff, 214. Schweitzer v. Wagner, 89. Schwinger v. Hickok, 24L. Scofield V. Alcott, 283. v. Olcott, 288. CASES CITED. 667 [The figures refer to pages.] Scott V. Beecher, 204. V. Brick Co., 13G. V. Causey, 72. V. Delaney, 4G0. V. Guernsey, 82, 342. V, Henry, 234. V. Howard, 95. V. Lunt, 377. V, Maglouglilin, 211. V. ilewliirter, 212. V. MlUs, 4G3. V. Scott, 440, 475. V. State, 343. V, Twiss, 443. V. Webster, 195. V. West, 801. Scott's Ex'r V. Scott, 409. Scovill V. McMahon, 172. Scripture v. Johnson, 236. Scudmore v. Scudmore, 23. Seahrook v. Mikell, 286, Seager v. McCabe, 88. Seaman v. Hax, 209. Sears v. Cunningham, 262. V. Hanks, 123. Sebald v. Mulholland, 367. Sebastian v. Hill, 158. Sebring v. Mersereau, 345. Secard's Lessee v. Davis, 224. Secheverel v. Dale, 49. Seckel v. Engle, 336. Secombe v. Railroad Co., 495. Second Congregational Soc. v. First Congregational Soc, 277. V. Waring, 273. Second Nat. Bank v. O. E. Merrill Co., 159. Security Co. v. Cone, 288. S'ecurity Loan & Tinist Co. v. Willa- mette Steam ]SIills Lumbering & Manuf g Co., 16. Sedberry v. Verplanck, 138. Sedgwick v. Hollenback, 138, 444, 448. V. Laflin, 36. Seedhouse v. Broward, 21. Seeger v. Leakin, 296. V. Pettit, 12. Seekright v. Moore, 85. Seeley v. Manning, 195. Seibold v. Clu-istman, 268. Selden v. Canal Co., 166. Sellers v. Sellers, 221. Sentill V. Robeson, 78. Sergeson v. Sealy, 318. Serle v. St. Elvy, 205. Sessions v. Kent, 203. Sewall V. Wilmer, 308. Sewell V. Holland, 216. V. Price's Adm'r, 188. Sexton V. Carley, 144. V. Wheaton, 394. Seymor's Case, 51. Seymour v. Bull, 319. V. Carli, 464. V. Courtenay, 374. V. Freer, 274. V. Lewis, 352. V. Sanders, 126. Shaeffer v. Weed, 90. Shafer v. Wilson, 365. Shaffer v. McCloskey, 231. Shall V. Biscoe, 192. Shalter's Appeal, 317. Shand v. Hanley, 394. Shanfelter v. Plorner, 151. Shank v. Dewitt, 312. Shankland's Appeal, 272. Shanks v. Lucas, 403. Shannon v. Grindstaff, 148, 149. V. Hall, 221. V. Kinny, 467. Shape V. Schaffuer, SO. Shapleigh v. Pilsbury, 290, 299. Shapley v. Rangeley, 243. Sharington v. Sti'otton, 266. Sharon Iron Co. v. City of Erie, 175. Sharp V. Johnston, 118. V. Ropes, 351. Sharpe v. Kelley, 144. Sharpsteen v. Tillou, 322. Shattuck V. Gragg, 87, 96. v. Hastings, 170. Shaughnessey v. Leary, 356i. Shaupe v. Shaupe, 95. Shaw V. Carbrey, 14. V. Ford, 395. V. Galbi-aith, 4-10. V. Railroad Co., 248. V. Robinson, 297. Shay V. McNamara, 456. Sheafe v. Gushing, 57. V. O'Neil, 95, 388. SheafCer v. Sheaffer, 175. 568 CASES CITED. [The figures refer to pases.l Shearer v. Field, '2:ib. V. Mlddletou, 4m. Shearman v. Uicks, 308. V. Irvine's Lessee, 4u9. Shearman's Adm'r v. llicks, 317. Shee V. Hale, 396. Sheets v. Joyuer, 135. V. Selden, 139. V. Seldeu's Lessee, 134. Sheetz v. Fltzwater, 179. Sheffey v. Bank, 21i4. Shelby v. Hearne, 189. Shelden v. Erskine, 434. Sheldon v. Patterson, 248. Shell V. Duncan, 494. y. Kemmerer, 364. Shelley's Case, 290. Shelton v. Carroll, 95. V. Codman, 135. T. Flcklin, 15. V. Hadlock, 67. V. Homer, 814. Shepard v. Kinks, 344. V. Shepard, 214, 386. Shepherd v. Cassiday, 121. V. McEvers, 272. V. May, 228. Sherard v. Sherard's Adm'r, 99. Sherburne v. Jones, 9, 156, 157. Sheriff v. Neal, 271. Sherley v. Sherley, 262. Sherman v. Ballou, 843. V. Dodge, 273. V. Newton, 109. V. Sherman, 228. V. Williams, 188. Sherred v. Cisco, 867, 368. Sherrou v. Acton, 204. Sherry v. Frecking, 4. Sherwin v. Lasher, 140. Sherwood v. Saxton, 190. Shields V. Arndt, 369. V. Lozear, 228. , V. Russell, 189. V. Schitr, 400. Shiell V. Sloan, 90. Shillaiier v. Robinson, 190. Shinkle's Assignees v. Bristow, 106. Shipley v. Bunu, 382. Shipp V. Snyder, 93. Shirkey v. Ha una, 244, 245. Shirley v. Crabb, 168. V. Shirley, 194. Shively v, Bowlliy, 5. Shoecraft v. Bloxham, 191. Shoemaker v. Commissioners, 263. V. Huffnagle, 49. Shope V. Scbaffuer, 91. Shores v. Carley, 79. Short V. Caldwell, 226. Shortall v, Hinckley, 80. Shortridge v. Lamplugh, 260. Shortz V. Unangst, 272. Shotwell V. Mott, 275. Shrunk v. Navigation Co.. 5. Shryock v. Waggoner, 264. Shubert v. Winston, IIS. Shultz v. Sanders, 490. Shumway v. Orchard, 241. Shury v. Piggot, 370. Sibley v. Ellis, 852. V. Holden, 422. V. Johnson, 107. V. Lefflngwell, 214. V. Smith, 493. Sidenberg v. Ely, 202. Sidmouth v. Sidmouth, 268. Sidney v. Sidney, 109. Sigourney v. Larned, 220. Silsby V. Bullock, 82. Silverthorne v. McKinster, 314. Simers v. Saltus, 145. Simkin v. Ashurst, 163. Simmons v. Ballard, 238. Simons v. Bank, 225. Slmonton v. Gray, 91. Simpkins v. Rogers, 22, 157. Simpson v. Downing, 467. v. Leech, 93. V. IMundee, 192, 219, 437. V. Simpson, 481. Simpson's Lessee v. Ammons, 835, 343. Sims V. Hammond, 213. Sinclair v. Armitage, 185, 191. V. Jackson, 319. V. Learned, 234. V, Slawson, 221. Singer, Appeal of, 494. Singleton v. Scott, 249, 815. Singleton's Ex'r v. Siugleton's Helra, 97. Sinnett v. Herbert, 329. Sioux City & St. P. R. Co. v. Singer, 174. Sir Edward Clere's Case, 317. CASES CITED. 569 [The figures refer to pages.] gkelUton v. Hay. 68. Skelton v. Scott, 195. Skinner v. Beatty, 125. V. Crawford, 4ti0. V. Skinner, 130. V. Wilder, 4. T. Young, 235. Skull V. Glenlster, 361. Slade V. Patten, 324, 325, 328. Slater v. Rawson, 32, 449, 456. Sleeper v. Laconia, 422. Slegel V. Lauer, 170, 179, 281, 282. Sllngerland v. Sherer, 240. Sloan V. Campbell, 194. V. Fiu'niture Co., 417. Slocum V. Clark, 146. Small V. Small, 194. Smalley v. Isaacson, 345. Smart v. Waterhouse, 100. V. W ha ley, 84. Smiley v. Wright, 110. Smith V. Adams, 371. V. Ashton, 318. V. Bank, 436, 489. V. Bell, 286, 301. V. Blake, 13. V. Brand, 248. V. Brannan, 176. V. Burtis, 458. V. Chapin, 467. V. Cranford, 309. V. Cremer, 189. V. Crosby, 190. V. Dayton, 146. V. Death, 321. y. Deschaumes, 116. V. Eustis, 89, 91. V. Floyd, 874, 375. V. Garey, 307. V. Gatewood, 374. V. Handy, 107. r. Haskins, 380. V. Hodsdon, 218. V. Horlock, 287. V. Hubert, 133. V. Hunter, 301, V. Jeffreys, 2G9. y. Jewett, 61, 64. V. Kearney, 318. V. Kemp, 374. V. Kimbell, 301, T. Kipp, 492. Smith V. Lawrence, 408. V. Lee, 360. T. Levlnus, 5. V. McCarty, 85. V. McKay, 464. V. Marrable, 139. V. Martin, 229. V. Mattingly, 66. V. Maxwell, 259. V. Miller, 124, 353. V. Morse. 319. V. Neilson, 219. V. O'Hara, 370. V. Packard, 244. V. Packhurst, 295. V. Parsons, 331. V. Pendergast, 153. V. Pierce, 489. V. Poyas, 61. V, Price, 8. V. Provin, 124. V. Raleigh, 141. V. Reich, 467. V. Rice, 181. V. Roberts, 232. V. Rumsey, 123. V. Russ, 370. V. Saunders, 473. y. Shuler, 196. V. Simons, 106. y. Smith,^ 82, 84, 93, 192, 268, 846. Y. Snyder, 150. V. Stanley, 91. V, Starr, 211. V, Stewart, 145, 156. V. Stigleman, 141, V. Swan, 232. y. Thackerah, 365. V. Towers, 396. V. Townsend. 229, 329. V. Walser, 269. V. West. 291. y. Whitbeck, 151. y. Williams, 455. y. Yule, 216, 217. Smith Paper Go. v. Servln, 15. Smith's Appeal, 49, 50, 80, 322, 829. Smith's Heirs v. Bank, 408. V. Smith, 99. Smith's Lessee v. Folwell, 322. Smlthurst v. Edmimds, 185. Smoot y. Lecatt, 81. 670 CASES CITED. [The figures refer to pages.] Smylcs T. Hastlnjjs, 358. Smyth V. Carter, 06. Snavely v. Pickle, 203. Snedeker v. Warring, 13, 21. Sneed v. Sneed, 318. Snell V. Levitt, 357. Saeirs Ex'rs v. Snell, 317. Snow V. Boycott, 67. V. Parsons, 3G9. V. Pressey, 182. V. Pulitzer, 141. y. Stevens, 91. Snyder v. People, 123. V. Snyder, 231. V. Sponable, 387. Society for Promoting Theological Ed- ucation V. Attorney General, 329. SofCyns' Case, 133. Sohier v. Eldredge, 61. V. Trinity Church, 170. V. Williams, 321. Solicitors' Loan & Trust Co. v. Wash- ington & I. Ry. Co., 237. Sellers v. Sellers, 5. Solomon v. Master, etc., of Mystery of Vintners, 365. Somers v. Schmidt, 447, 449. Somes v. Brewer, 213. V. Skinner, 244, 451. , Sommers v. Reynolds, 151. Soper V. Guernsey, 181. South V. South, 316. Southampton v. Hertford, 831. Southcote V. Stowell, 299. Souther v. Pearson. 232. Southerland v. Hunter, 437. Southern v. Wollaston, 324. Southern California Lumber Co. v. McDowell, 489. Southern Life Ins. Co. v. Cole, 436. Southern Marble Co. v, Darnell, 369. Southern Pac. R. Co. v. Doyle, 190. South Western Ry. v. Thomason, 25. Souverbye v. Arden, 435. Soverhill v. Suydam, 229. Sowler V. Day, 215. Spalding v. Hershtteld, 109. Spangler v. Stanler, 87, 88. Sparhawk v. Wills, 201. Sparkman v. Roberts, 115. Sparrow v. Hovey, 463, 468. V. Kingman, 105. Spaulding v. Crane, 119. V. Hallenbeck, 171. V. Sones, 239. Speck V. Riggin, 214. Spencer v. Austin. 333, 335. V. Ayrault, 231. V. Carr, 452. V. Lewis, 62, 71. v. McGowen, 146. V. Slater, 392. V. Spencer, 208. V. Waterman, 206. V. Weston, 111. Spencer's Case, 8, 136, 137. Spensley v. Valentine, 354. Sperry v. Sperry, 174. Spinney v. Barbe, 18. Sprague v. Baker, 135. V. Beamer, 232. V. Bond, 187. V. Cochran, 243. V. Coenon, 491. V. Woods, 412. V. Worcester, 369. Spraker v. Van Alstyne, 89. Spring V. Haines, 243. V. Russell, 6. Springer v. Lehman, 196. Springfield Fire & Marine Ins. Co. t. Allen, 198. Sproul v. McCoy, 113. Spruance v. Darlington, 109. Spurgin v. Adamson, 235. Squier v. Mayer, 20. Squire v. Harder, 206. Squires v. Summers, 434. Stafford v. Lick, 431. V. Van Rensselaer, 192. Stainback v. Harris, 480. Stallard v. Cushiug, 357. Stauard v, Eklridge, 138, 444. Standen v. Chrismas, 186. V. Standen, 317. Standish v. Lawrence, 367. Stanley v. Beatty, 210. V. Colt, 37, 170, 262, 272. V. Green, 420. V. Greenwood, 122. Stansbury v. Hubner, 395. Stansell v. Roberts, 226. Stanwood v. Dunning, 85. CASES CITED. [The figures refer to pages.] 571 Staples V. Brown, 80. V. Kmery, 17. V. Feiitou, 217. Star V. Ellis, 273. V. Rookesby, SCa Stark V. Brown, 247. V. M'Gowen, 37S. V. Olseu, 226. Starr v. Jackson, 142. V. Leavitt, 343. State V. Black River Phosphate Co., 6. V. Bradbury, 3(J2. V. Brown, 280. V. Davis, 3U2. V. Eason, G. V. Elliot, 18. V. Evans, 3U3, V. Gerard, 270. V. Gilmanton, 6. V. Jones, 154. V. Moore, 8. V. Pacific Guano Co., 5. V. Parrot t, 303. V. Piper, 142. V. Pottmeyer, 4, 6. V. President, etc., of Bank of Mary- land, 263. V. Raglaud, 184, V. Stephenson, 8. V. Suttle, 459. V. Trask, 299. V. Trontman, 468. v. Votaw, 144. State Bank v. Hinton, 89. V. Mathews, 210. V. Whittle, 393. Steacy v. Rice, 255. Steamboat Magnolia v. Marshall, 6. Stearns v. Godfrey, 177, 178. V. Palmer, 273. V. Sampson, 105. Stebbins v. Hall, 207. V. Merritt, 430. Stedman v. Gassett, 144. Steed V. Preece, 23. Steel V. Board of Education, 105. V. Frick, 154. Steele, In re, 61. V. Carroll, 89. V. La Frambois, 92. Steere v. Steero. 262. V. Tiffany, 357. Steers v. City of Brooklyn, 472. Steffens v. Earl, 161. Stehlin v. Stehlin, 110. Stehman v. Stehman, 285. Steib V. Whitehead, 396. Steiger's Adm'r v. Hillen, 111. Stein V. Stein, 99, 105. V. Sullivan, 220. , Steinmetz's Estate, In re, 387. Stell V. Barham, 36. Stephen v. Beall, 250. Stephens v. Bridges, 152, 281. V. Evans' Adm'x, 323. V. Hussk, 433. V. Hume, 75. V. Insurance Co., 197. V. Rinehart, 434, 436. V. Stephens, 324. Stephenson v. Boody, 454. V. Elliott, 207. Sterling v. Penlington, 79. V. Warden, 106. Stern v. Lee, 117. V. Thayer, 153. Stevens v. Battell, 343. V, Campbell, 246. V. Cooper, 236. V. Ely, 267. V. Kelley, 6. V. Melcher, 60. V. Owen, 87, 107. V. Pantlind, 142, 153. V. Pierce, 139. V, Railway Co., 10, 15. V. Smith, 106; V. Town of. Norfolk, 343. V. Winship, 59. Steven's Estate, In re, 171. Stevens* Heirs v. Stevens, 96, 99. Stevenson v. Crapnell, 266, 436. V. Kaiser, 433. V. Lambard, 140, 148, 378. V. Lesley, 272. Steward v. Harding, 162. Stewart v. Bank, 345, 346. V. Barclay, 79. V. Brand, 121. V. Chadwick, 271. V. Clark, 56. V. Drake, 447. V. Gregg, 146. V. McMahan, 229. 572 CASES CITED. [The figures refer to pages.] Stewart v. McMartln, 95. V. McSweeuey, 220. V. Neely, 305. V. Piatt, 224. V. Ross, 82. V. Smith, 98. V. Stewart. 110, 342. V. Weed, 435. V. Wood, 194. Stewart's Lessee v. Stewart, 94, 105. Stickney v. Munroe, 142. Stieff V. Ilartwell, 491. Stiles V. Probst, 428. Stillnian v. Flenniken, 20. Stlllman's Ex'rs v. Stillman, 204. Stlllwell V. Doufjhty, 59. V. Ha mm, 23:?. Stlnchfield v. Milliken, 199. Stlnebaiigh v. Wisdom, 75. Stiuson V. Ross, 19G. V. Sumner, lOfJ. Stirbling v. Ross, 104. Stivers v. Home. 223. Stockbridge Iron Co. v. Hudson Iron Co., 417. Stockman v. Wallis, 242. Stockport Waterworks Co. v. Potter, 369. Stockton V. :Martin, 49. V. Railroad Co., 495. V. Williams. 403. Stockwell V. McHenry, 222. V. Sargent, 101. Stoddard v. Forbes, 237. V. Gibbs, 79. V. Whiting, 188. • Stoerer v. Stoever. 188. Stokes V. Berry, 457. V. McAllister. 94. V. McKlbbin, 78. V. Norwood. 109. Stokoe V. Singers, 355, 364. Stoltz V. Doering, 469. Stone V. Darnell, 125. V. Ellis, 175. V. Fitts, 4.54, V. McMullen, 48. V. Stone, 493. V. Vandermark, 109. Rtookey v. Stookey, 97. Storrs V. Benbow. 32.'?, 328. Story V. Springer, 188. Stott V. Rutherford. 138. Stoudinger v. Newark, 362. Stoughton, Appeal of, 7. V. Leigh, S7, 88. Stout V. Lye, 246. V. Merrill, 383, Stover V, Boswell's Heir, 480. V. Eycleshimer, 415. V. Hazelbaker, 152. V. Jack, 6. Stow V. Tifft, 85. Stowe V. Banks, 189. Stowell V. Waddingham, 66. Strang v. Allen. 200, 237. Strange v. Spaulding, 460. Strattan v. Best, 334. Strauss v, Abrahams. 392. Straw V. Greene, 244. Strawn v, Strawn, 455. Streeper v. Abeln, 445, Street v, Saunders, 101. Stdckland v. Parker, 12, 13. Strobe v. Downer, 247. Stroebe v. Fehl, 71. 72. Strohm v. Good, 193. Strong V. Clem, 95. v. Converse. 207. V, Doyle, 18, V, Insurance Co,, 197. V. Lord, 340, V, Powell, 454. V, White, 3. Strother v. Law, 315. Stroud V. Lockart. 223. V. Rogers, 378. Stroup V. Stroup, 89. Strouse v. Cohen, 181. Stuart V. Kissam, 72. V. Lowry, 451, Stubblefield v, Boggs, 403. V. Menzies, 303. Stubbs V. Parsons, 139. Stuckey v. Keefe's Ex'rs, 338. Studdard v. Wells, 171. Studstill V. Willcox, 461. Stiill V. Graham. 87, 106. Stults V, Sale. 114. Stultz V. Dickey, 9. Stump V. Deneale, 473. V. Findlay, 59. Sturgeon v. Wingfleld, 456, Sturges V. Hart, 228. CASES CITED. 673 [The figures refer to pages.] Sturtevant v. Jaqii^s, 267. Stuyvesant v. Neil, 312. Sudbury v. Jones, 21. Suddarth v. Robertson, 144. Suffield V. Brown, 351. Sullivan v. Carberry, 23. V. Chambers, 255, 437. V. Eddy. 351, 433, 460. V. Jernifjan, 370. V. McLenans, 207. V. Mining Co., 371. Sumerel v. Sumerel, 110. Summer v. Babb. 95, 97, 101, 106. V. Bromley. 248. Sumner v. Partridge, 74, 77. V. Skinner, 247. V. Stevens, 465. Sunderlin v. Stnithers, 455. Supplee V. Timothy, 162. Surplice v. Farnsworth, 135. Susquehanna & W. V. R. & Coal Co. V. Quick, 466. Sussex Co. Mut. Ins. Co. v. Woodruff, 199. Sutherland v. Goodnow, 148. V. Rose, 233. V. Sutherland, 85. Sutliff V. Forgey, 85, 95. Sutphen v. Therkelson. 364. Sutter V. Lackmann, 150. Sutton V. Aiken, 256. V. Jervls, 216. Suydam v. Dunton, 357. v. Jones, 135, 441. Swam V. Mizner, 163. Swaine v. Burton, 479. V. Ferine, 60, 91. Swan V. Busby, 144. V. Yaple, 210, 229. Swatts V. Bowen, 232. Swayne v. Chase, 117. Sweaney v. Mallory, 110. Swearingen v. Lahner, 182. V. Robertson, 468. Sweet V. Myers, 18. Sweetapple v. Bindon, 23, 78. Sweetzer v. Atterbury, 187. Swenson v. Plow Co., 245. v. Seale, 488. Swetland v. Swetland, 187. Swett V. Stark, 211, 245. Swift V. Edson, 246. V. Lee, 473. y. Mulkey, 461. V. Stovall, 452. V. Thompson, 13. Swlhart v. Swihart, 109. Swinburne v. Swinburne, 270. Sykes v. Benton, 132. V. Sykes, 92. Syler v. Eckhart, 415. Sylvester v. Hall, 140. Symmes v. Drew, 98. Sym's Case, 71. Synge v. Synge, 396. Sypher v. McHenry, 270. T Tabele v. Tabele, 99. Tabor v. Robinson, 16, 20. Tacey v. Irwin, 491. Taft V. Stetson, 12. V. Taft, 108, 261. Tainter v. Clark, 272, 27.". 315. V. Cole, 132. Talamo v. Spitzmiller, 156. Talbot V. Cruger, 23. V. Hill, 101. v. Tipper, 319. Talbott V. Barber, 265. Talley v. Thompson, 125. Tallmadge v. Bank, 351. Tallman v. Snow, 172, 174. V, Wood, 258, 259. Taltarum's Case, 51. Tameling v. Emigration Co., 403. Taney v. Fahnley, 296. Tanguay v. Felthonsen, 207. Tanner v. Hills, 154. Tappan v. Deblois, 277. Tarbell, In re, 240. Tarbuck v. Tarbuck, 302. Tarlotting v. Bokern. 156. Tarrant v. Swain, IIG. Tasker v. Bartlett, 429. Tate V. Goff. 115. V. Lawrence, 439. V. Tally, 49. Tatem v. Chaplin, 136. Tatton V. Mollineux, 327. 574 CASES CITED. [The figures rtfer ^o pages.] Tatiim V. City of St. T.ouis, 470. rayloe v. Dug^er, 4G4. V. Gould, TO, 79. Taylor v. Benham, 272. V. Boulware, 118. V. Cooper, 145. V. Cox, 384. V. Eatman, 311. V. Hopper, 359, 363. V. Horde, 4158, V. Kearn, 106. V. Kelly. 473. V. Lawrence, 111. V. McCrackin, 94. V. Mason, 172. V. Millard, 344, 351. V. Mitchell, 475. V. Murphy, 339. V. Page, 211. V. Porter, 31, 41, 234, 235. V. Smith, 78. V. Sutton, 170. V. Taylor, 48, 107, 268, 287, 302. V. Townsond, 14. V. Trust Co., 182. V. Vale, 377. V. Warnaky, 359. V. AVhitehead, 361. V. ^Yright, 493. TeaCf V. Hewitt, 10, 11, 13. Teague's Settlement, In re, 329. Toape's Trusts, In re, 317. Temple v. Scott, 290. V. Whittier, 232. Templeman v. Biddle, 9. Ten Eyck v. Craig, 206. V. Town of Warwick, 6. Terhune v. Elberson, 8. Terrell v. Reeves, 287, 327. Terrett v. T'^ylor, 440, 446. Terriere v. City of New Orleans, 472 Thackara t. Mintzer, 396. ThaiT) V. Brenneman, 432. Tharpe v. Dunlap, 194. Thayer v. Bacon, 4.53. V. Campbell, 210. V. McGee, 178. V. Mann, 240. V. Payne, 352, 356, 426. V. Thayer, 105. V. Torrey, 418. Thayer v. Wellington, 263. Tlicllusson V. Woodford, 323, 324, 830, Theresa Drainage Dist., In re, 495. Third Nat. Bank v. O'Brien, 439. Thomas v. Bland, 441. V. Bridges, 193. V. Cook, 409. V. Crout, 19, 22. V. Hayward, 137. V. Hesse, 98. V. Howell, 172, 173. V. Inhabitants of Marshfleld, 416. V. Jenks, 394. V. Linn, 211. V. Record, 174. V. Simpson, 95. V. Stickle, 455. V. Sylvester, 378. V. Thomas, 60, 341, 858, V. Wyatt, 417. Thomas' Adm'r v. Von KapfE's Ex'rs, 135. Thompson v. Barber, 343. V. Burhans, 462. V. Chandler, 234. V. Cochran, 90. V. Egbert, 109. V. Gregory, 417, 418. V. Hartline, 270. V. Hill, 290. V. Holladay, 182. V. Hoop, 286. V. Leach, 434. V. Lyon, 314. V. McCorkle, 105. V. Marley, 265. V. jNIarshall, 184. V. Merrill, 455. V. jSIorrow, 97. V. Murphy, 59. V. Railroad Co., 185. V. Rose, 137. V. Thompson, 106, 42«. V. Vance, 86. Thompson's Lessee v. Hoop, 474. Thoms V. King, 104. Thomson v. Ludington, 291. V. Peake, 38. V. Waterlow, 351. Thomson-Houston Electric Co. v. Dur- ant Land-Imp. Co., 135. CASES CITED. 675 [The flffures refer to pages.] Thong V. Bedford, 297. Thorington v. Thorington, 311. Thorn v. Sutherland, 23. V. WooUcombe, 152. Thornburg v. Wiggins, 338. Thorndike v. Burrage, 143. Thornton v. Burch, 9. V. Knox's Ex'r, 192. V. Thornton, 317, 334, 337, 338. V. Vaughan, 262. Thornton's Ex'rs v. Krepps, 77. Thoroughgood's Case, 406. Thorp V. Raymond, 469. Thorpe v. Goodall. 320. Thresher v. Water Works, 13. Throckmorton v. Pence, 468. V. Throckmorton, 267. Thurber v. Martin, 370, V. Townsend, 82, S3. Thurman v. Cameron, 442. Thursby v. Plant, 378. Thurston v. Dickinson, 61. V. Hancock, 365. V. Maddocks, 116. V. Prentiss, 240. Thwayles v. Dye, 319. Tibbals v. Iffland, 149. V. Jacobs, 393. Tice V. Annin, 209. Tidd V. Lister, 272. Tifft V. Hoiton, 12, 13, 21. Tilden v. Streeter, 189. Tileston v. Newell, 441. Tllford V. Fleming, 14& Tilley v. King, 171. TlUinghast v. Bradford, 397. V. Goggeshall, 78. Tillotson V. Millard, 118, 122, 123. V. Prlchard, 441. Tillson V. Moulton, 187. Tilton V. Hunter, 223. Timmins v. Rowlinson, 162. Tinicum Fishing Co. v. Carter, 373, Tink V. Walker, 89. Tinker v. Forbes, 351. Tinney v, Tinney, 108. Tipton V, Wortham, 250. Tisdale v, Jones, 108. Tisher v. Beckwith, 433. Titcomb v. Yantyle, 383. Titman v. Moore, 118, 119, 121. Titus V. Mabee, 14. V. Neilson, 90. V. Wan-en, 125. Titzell V. Cochran, 302. Tobey v, Moore, 326. V. Reed, 196. V. Taunton, 359. Tobias v. Ketchum, 110. Toby V, Schultz, 145. Tod V, Baylor, 98. Todd V, Flight, 142, V. Jackson, 165. V. Johnson, 235. V. Nelson, 394. V, Outlaw, 225, V, Oviatt, 79. V, Sawyer, 396, Toll V, Wright, 457. Toll Bridge Co. v. Osborn, 25. Tolle V. Alley, 221. Toilet V, Toilet, 318. Tomlin v. Railway Co., 5. Tomlinson v. Insurance Co., 198. Tompkins v. Elliot, 441. V. Fonda, 95. Toms V. Williams, 261. Tone V. Brace, 138. Toney v. Goodley, 146. Tooke V. Hardeman, 110. Toole V. Dibrell, 125. Toomer v. Randolph, 183. Toomey v. McLean, 101. Torrey v. Burnett, 23. V, Cook, 229, 241. V. Deavitt, 209. V. Minor, 110, 111. Torriano v. Young, 139, 160. Tottel V. Howell, 374, 415. Totten V. Stuyvesant, 93, Toupin V. Peabody, 134. Tourville v. Pierson, 117, 118. Tousley v. Tousley, 221. Towanda Bridge Co., In re, 379. Towle V. Ayer, 31. Town V, Needham, 346. Towne v. Bowers, 9. V, Fiske, 18, 21. Town of Freedom v. Norris, 357. Town of Old Town v. Dooley, 423. Townsend v. Brown, 401, V. Downer, 439. 676 CASEb CITEC. [The figures refer *o pages.] Townsend v. Hubbard, 432. V. Townseud, 1U8. V. Westacott. 394. V. Wharf Co., 111. Tracy v. Atherton, 353, 359. V. Jenks, 221. Trafton v. Hawes, 410, 412. Transportation Co. v. Chicago, 365. Trask v. Graham, 137. V. Patterson, 72. Traveller's Ins. Co. v. Patten, 24(5. V. Youut, 420. Travers v. Dorr, 208. Trawick v. Harris, 114. Trayser v. Trustees of Asbury Uni- versity, 240. Treary v. Cooke, 374. Tress v. Savage, 158. Trich's Ex'r v. Trich. 384. Trimble v. Smith, 4G2. Tripp V. Hasceig, 8. Trolan v. Rogers, 455. Trollope v. Linton, 319. Tromans v. Mahlman, 118. Troost v. Davis, 202. Trotter v. Hughes, 207, 208. V. Oswald. 327. True v. Haley, 234. V. Morrill, 118, 119. Truett V. Fuuderburk, 85, 109. TtuU V. Bigelow, 213. V. Eastman, 415, 448, 456. V. Fuller, 15. V. Granger, 133. Trulock V. Donahue, 377. Truman v. Weed, 218. Trumbull v. Trumbull, 8G. Trusdell v. Lehman, 57. Trustees of Amherst College v. Ritch, 271. Trustees of Dartmouth Colh'ge v. Clough, 149. Trustees of East Hampton v. Kirk, 460. Trustees of Hopkin.s' Academy v. Dickinson, 470, 471. Trustees of Philadelphia BaptistAss'n V. Hart's Ex'rs, 275, 277. Trustees of Phillips Academy v. King, 263. Trustees of Poor of Queen Anne's Co. V. Pratt. 104. Trustees of Putnam Free School v. Fisher, 460. Trustees of Schools v. SchroU, 5, 423. V. Wright, 262. Tnistees of Western University v. Robinson, 376. Trustees, etc., of Queen Anne's Co. T. I'ratt, 90. Tryon v. Munson, 184. Ticker v. Byers, 156. V. Eldred, 362. v. Moreland, 382. 383. V. Price, 467. V. Thurstan, 476. V. Tilton, 215. Tudor Iron Works v. HItt, 19. Tuft V. Adams, 448. Tuite V. Miller. 444. Tulk V. Moxhay. 351. TuUett V. Armstrong, 396. Tumlinson v. Swinney, 120. Tunison v. Chambliu, 394, 435. Tuiistall V. Christian, 365. Turman v. White, 296. Turner v. Beruheimer, 123. V. Davis. 23. 24. V. Doe, 158. V. Flenniken, 237. V. Kennedy, 23. V. Lee, 377. V. Moore, 462. V. Rusk. 384. V. Scheiber. 109. V. Scott, 473. V. Tovpnsend, 139. V. Watkins, 209. V. Wright, 62. Turner Coal Co. v. Glover, 195. Turpin v. Ogle, 220. Tusk V. Ridge, 181. T utter V. Fiyer, 146. Tuttle V. Bean, 162. V. Brown. 231. V. Turner, 435. V. Willson, 111. Tweddell v. Tweddell, 204. Twynam v. Plckard, 137. Twyne's Case, 393. Tygret v. Potter, 189. Tyler v. Hamilton, 245. V. Hammond. 358. V. Johnson, 126. CASBS CITSD. 677 [The flgures refer to pages.] Tyler v. Moore, 419. V. Wbeeler. 82. V. Wilkinson, 369. Tyrrell's Case. 256. Tyrringham's Case, 375. Tyson V. Smith, 354. Umbenhower v. Miller, 189. Underbill v. Railroad Co., 170, 172, 176. Underwood v. Birchard, 448. V. Carney, 351. V. Curtis, 24. Unger v. Leiter, 90. Union Depot Co. v. Chicago, K. & N. Ry. Co., 159. Union Depot Street-Railway & Trans- fer Co. of Stillwater v. Brunswick, 423. Union Mut. Life Ins. Co. v. Campbell, 433. V. Hauford, 208. V. Kirchoff, 236. V. Slee, 188. 210. Union Pac. Ry. Co. v. U. S., 452. United States v. Appleton, 364. V. Bostwick, 139. V. Certain Tract of Land, 495. T. Chicago, 495. V. Cook, 400. V. Duncan, 109. V. Fisher, 41. V. Iron Silver Min. Co., 403. V. Minor, 403. V. Nelson, 428. V. Railroad Bridge Co., 495. V. Sliney, 217. V. Steenerson, 403. U. S. Bank v, Burson, 230. United States Inv. Co. v. Phelps & Bigelow Windmill Co., 126. United States Mortg. Co. v. Gross, 216. Upchurch v. Anderson, 32. Upington v. Corrigan, 171. Upjohn V. Board, 371. Upton V. Archer, 428. Uridias v. Morrell, 163. Usher v. Skate Co., 181. Utermehle v. McGreal, 249. KEAL PROP. — 37 Valentine v. Healey, 341, 342. Vanarsdall v. Fauntleioy's Heirs, 75, 76. 79. Vanatta v. Brewer. 177. Van Beuren v. Dash. 477. Vanbever v. Vanbever, 271. Van Bibber v. Williamson, 61. Van Brunt v. Scbenck, 145. Van Buren v. Olmstead. 189, 200, Vance v. Vance, 107, 108. Van Cleaf v. Burns, 104. Vanderheyden v. Crandall, 295. Vanderkarr v. Vanderkarr, 441. Vandei-plauk v. King. 327. Vanderpoel v. Van Alleu, 13. Van Deusen v. Sweet, 131, 384. V. Young, 304. Van Doren v. Everitt, 9, 10, 131. Van Duyne v. Thayre, 91. Van Duzer v. Van Duzer, 80. ^'ane v. Lord Barnard, 62. Van Giesen v. W^bite, 288. Van Hoozer v. Coi^y, 185. Van Horn v. Bell, 429. Van Home v. Campbell, 395. V. Grain, 148. V. Fonda, 341. Van Keuren v. Corkins, 227, Van Meter v. Thomas, 34. Vann v. Marbury, 226. Van Ness v. Paeard, 17, 22. Van Note v. Downey, 71. Van Ostrand v. Reed. 430. Van Rensselaer v. Ball, 169, 176. V. Clark, 213. V. Dennison. 31. 169, 185. V. Hays, 31. 148. 376, 377. V. Poucher. 32. V. Radcllff, 375. V. Read, 376. 377. V. Smitb, 31. V. Snyder, 151. Vansant v. AUmon, 228. Van Sickler v. Jacobs. 146. Vanstory v. Thornton, 117. Van Thorniley v. Peters, 225. Van Vechten v. Terry, 246. Van Vronker v. Eastman, 90, 202. Van Wagner v. Van Nostrand, 443. Van Wyck v. Seward, 393. 678 CASES CITEn. [The figures refer to pages.] Varney v. Stevens, 60. 2S9. Varnum v. Abbott, 34,"^. Yarrell v. Wendell, 312, 313. Vartle v. Underwood, UO. Vasey v. Ti-ustees, 124. Vason V. Ball, 184. Vaughan v. Daniels, 492. V. Greer, 224, V. Matlock, 135. Vaugbeu v, Haldeman, 18. Vangbn v. Stuzaker, 444. V. Tate. 424. V. Tracy, 214, 216. Veal V. Fortson, 382. Veazle v. Dwinel, 6. Vegbte V. Power Co., 1G8. Tenable v. Beaucbamp, 347. V. Railway Co., 105, 110. Ventress v. Collins, 110. Verlander v. Harvey, 97. Vermont v. Society for Propagation of Gospel, 176. Verner v. Beltz, 195. Vernon v. Smitb, 135, 136. v. Wrigbt, 38. Vernon Irrigation Co. v. City of Los Angeles, 869, 370. Vernon's Case, 108. Verona Borougb v. Allegheny Val. R. R.. 354. Verplanck v. Wrigbt, 137. Vest V. Micbie, 213, 214. Vickers v. Heui-y, 104. V. Leigb, 87. Vidal V. Girard, 275. V. Girard's Ex'rs, 263. Viele V. Judson, 452. Villa V. Pico, 119. Village of Brooklyn v. Smith, 4, 6. Village of Dwigbt v. Hayes, 168. Vincent v. Spooner, 108. Vinson v. Gentry, 104. A^lautin v. Bumpus, 339. Voelckner v. Hudson, 94. Volk V. Eldred, 6. Voller V. Carter, 50. Voorbees v, Burcbard, 355. V. McGinnis, 11, 15, 20. Voorhis v. Freeman, 14, 15. V. Westervelt, 225. Vornberg v. Ewens, 115. Voss V. King 144, 160. Vreeland v. Jacobus, 90. Vyvyan v. Arthur, 136. w Waddell v. Ratlew, 290. Wade V. Brewing Co., 15. V. Deray, 421. V. Halligan, 138. V. Johnson, 463. V. Jones, 113. V. Malloy, 60. Wadbams v. Swan, 455. Wadleigb v. Janvrin, 13, 14. Wadsworth v. Miller, 83. V. Wadsworth, 388. V. Williams, 393. Waesch's Estate, In re, 481. Waffle V. Railroad Co., 372. Wager v. Wager, 419. Wagner v. Hanna, 349. Wable V. Reinbach, 371. Wainman v. Field, 325, 328. Wainwright v. McCullough, 5. Wait V. Belding, 38. V. Richardson, 342. Wakefield v. Brown, 137. Wakeman v. Banks, 197. Waldo V. Cummings, 396. Wales' Adm'r v. Bowdish's Ex'r, 820. Walker v. Armstrong, 380. V. Board, 5. v. English, 239. V. Fitts. 154. V. Gergard, 361. V. Gilbert, 135. V. Gitbens, 153. V. Goodsill, 207. 232. V. Griswokl. 91. V. Hall, 455. V. Long, 83. V. Mackie, 316. V. Mining Co., 189. V. Benfro, 440. V. Schreiber, 215. V. Schuyler, 97. 98. V. Sharpe, 162. V. Sherman, 15. V. Stetson, 367. V. Tucker, 140. V. Vincent, 395, CASES CITED. 679 [The figures refer to rages.] Walker v. Walker, 433. Walker's Adm'r v. Deaver, 445. Walker's Case, 149. Wall V. Byrne, 68. V. Hinds, 17, 18, 343. Wallace v. Butts, 435. V. Fletcher, 353. V. Gooddall, 209. V. Hall's Heirs, 94. V. Harmstad, 31, 370, 428. V. Harris, 124, 43G. V. Insurance Co., 123. V. Jones, 487. V. McKenzie, 213. V. Miller, 33G. V. Presbyterian Church, 377. Wallach v. Van Riswick, 400. Waller v. Mardus, 95. V. Waller's Adm'r, 89, 104. Wallls V. Harrison, 350. V. Wallls, 410. Walls V. Baird, 229. Walmsley v. Jowett, 321. V. Milne, 21. Walsh V. Insurance Co., 200. V. Wallinger, 313. Walters v. Association, 124. V. Hutchins' Adm'x, 143. V. People, lis, 119. V. Walters, 229. Walton V. Cronly's Adm'r, 187. V. Follansbee, 451. V. Walton, 47G. V. Wray, IG. Walworth v. Jenness, 154. Wamble v. Battle, 192. Wansbrough v. Maton, 13. Ward V. Amory, 297, 313. T. Cochran, 459. V. Green, 23G. V. Huhu, IIG. V. Montgomery, 493. V. Sheppard, 64. V. Thompson, 80. V. Ward, 357. V. Ward's Heirs, 342. Warde v. Tuddingham, 2GG. Warden v, Adams, 209. V. Jones, 394. Ware v. Cann, 395. V. Richardson, 255, 256. V. Ware, 72. Warford v. Noble, 104. Waring v. Loder, 197, 198. V. Smyth, 429. Warlng's Ex'r v. Waring, 273. Warland v. Colwell, 273. Warn v. Bickford, 450. Warner v. Bates, 261. V. Bennett, 170, 174, 176. V. Insurance Co., 31G, 319. V. South worth, 422. V. Tanner, 55. V. Van Alstyne, 90. Warnock v. Campbell, 385. Warren v. Brown, 363. V. Costello, 72. V. Fenn, 193. V. Frederichs, 468. V. Leland, 8. V, Lynch, 429. 430. V. Peterson, 121. V. President, etc., of Town of Jacksonville, 3G2. V. Tobey, 435. • V. Warren, 109. Washburn v. Burns, 338. V. Cutter, 463. V. Goodwin, 209. V. Merrills, 187. Washington Bldg. & Loan Ass'n y. Beaghen, 204. Washington Ice Co. v. Shortall, 6. Wass V. Bucknam, 73, 75, 79, 80. Waterbury v. Sturtevant, 393. Waterman. V. Soper, 4. Waters v. Crabtree, 186. V. Lilley, 5, 373. V. Lumber Co., 356. V. Lyon, 296. V. Margerum, 51. V. Tazewell, 78. Watkins v. Edwards, 217. V. Goodall, 142. V. Green, 60, 341, 468. V. Hill. 229. V. Holman, 41. V. Nash, 436. V. Spoull, 126. V. Thornton, 75, 79. Watriss v. Bank, 23. Watson V. Atkins, 139. V. Foxon, 287. V. Gray, 866. 680 CASES CITED. [The figures refer to pages.] Watson V. Hunk Ins, 148. V. Hunler, 145. V. O'Hern, 133. V. Peters, 422. V. Smith, 301. V. Speuce, 246. V. Watson, 76, 80, 453. Watson's Estate, In re, 86. Watteugel v. Schultz, 198. Watters v. Bredln, 170, 419. V. Jordan, 103. Watts V. Ball, 78. V. Coffin, 375. V. Kelson, 3.j1. Waj-raau v. Jones, 207. Wead V. Larkin, 441. Wea Gas, Coal & Oil Co. v. Franklin Land Co., 123. Weale v. Lower, 292. Weare v. Johnson, 127. Weatherhead v. Stodd;ird, 28S. Weaver v. Brown, 194. V. Crenshaw, 94. V. Fisher, 270. V. Gregg, 93. V. Sturtevaut, 95. Webb V. Archibald, 474, V. Bird, 352.' V. Den, 417. V. Hayner, 118, 122, 124. V. Honnor, 317. V. Jiggs, 378. V. Mullins, 417. V. Rice, 187. V. Robinson, 193. V. Russel, 152. V. Townsend, 87. T. Ti'ustees, 77. Webber v. Boom Co., 423. V. Clarke, 460. V. Ramsey, 223. Weber v. Anderson, 467. V. Huerstel, 182. Webster v. Calden, 212. V. Cooper. 172, 295. V. Ellsworth, 79. V. Gilman, 07, 475. V. McCuUough, 193. V. Morris, 261. V. Nichols, 147. V. Peet, 66. V. Trust Co., 122. Webster v. Vandeventer, 343. V. Van Sleeubergh, 213, 217. V. Webster, 61, 63. V. Wiggin, 474. Webster's Trustee v. Webster, 38. Wedekind v. Hallenberg, 288. Wedge V. Moore, 89. Weed V. Lindsay, 156. Weed Sewing Mach. Co. v. Emerson, 211. Weeks v. Thomas, 200. Weeton v. Woodcock, 22. Wehrniann v. Conklin, 452. Weiner v. Heintz, 237. Weir V. Mosher, 230. V. Railroad Co., 495. V. Smith. 316. V. Tate. 87, 89. 93. Weise v. Smith, 6. Weiser v. Weiser, 346, 453. Weisinger v. Murphy, 80. Welborn v. Anderson, 461. Welch V. Adams, 144. V. Allen, 262. V. Anderson, 96, 109. V. Button, 412. V. Phillips, 183. V. Wilcox, 356. Welch's Appeal, 345. Welch's Heirs v. Chandler, 78. Welcome v. Upton, 375. Weld V. Traip, 133. Welder v. McComb, 144. Weldon v. Tollman, 228, 238. Welland Canal Co. v. Hathaway, 450. Weller v. Weller, 77, 88. Welles V. Cowles, 25. V. Olcott, 48. Wells V. Dillard, 418. V. Heath, 329. V. Hedenberg, 420. V. Ody, 363. V. Prince, 468. V. Ritter, 286. V. Thompson, 74, 76, 81. V. Tolman, 351, 356. V. Wells, 476. Welsh V. Foster, 298. V. Solenberger, 80. V. Welsh, 392. Wendell v. Crandall, 288. V. "Van Rensselaer, 451, 452. CASES CITED. 681 [The figures refer to pages.] Wentworth y. Wentworth, 96. West V. Bancroft, 362. V. Bemey, 322. V. Stewart, 448. V. Ward, 116, 117. V. Williams, 306. Westchester Fire Ins. Co. v. Foster, 198. Westcott V. Campbell, 97. V. Delano, 8. West Covington v. Freliing, 423. West Cumberland Iron &. Steel Co. v. Kenyon, 871. Western Boot & Shoe Co. v. Gannon, 131. Western Maryland Railroad Land & Imp. Co. V. Goodwin, 249. Western Massachusetts Ins. Co. v. Riker, 198. Western Min. & Manuf'g Co. v. Pey- tona Cannel Coal Co., 448. Western N. C. Ry. Co. v. Deal, 16, 19. Western R. Coi"p. v. Bat>cocli, 434. Western Transp. Co. v. Lansing, 135. Weston V. Sampson, 5. V. Weston, 18. West I'oint Iron Co. v. Raymert, 418. West River Bank v. Gale, 118. West River Bridge Co. v. Dix. 379, 495. West's Appeal, 230. West Shore Mills Co. v. Edwards, 144. Wettig V. Bowman, 493. Wetz V. Beard. 119, 121. Wetzel V. Richcreek, 442, 444. Weynand v. Lutz, 351. W^halen v. Cadman, 113. Whaley v. Whaley, 267. Wheat V. Morris, 343. Wheatland v. Dodge, 48. Wheatley v. Chrisman, 369. Wheatley's Heirs v. Calhoun, 85. Wheaton v. Andress, 57. Wheeldon t. Burrows, 360. Wheeler v. Gorham, 59. V. Hotchklss, 81. V. Insurance Co., 198. V. Kirtland. 105. V. Morris, 91. V. Smith, 277. V. Walker, 170, 177. Wheelwright v. Freeman, 244. V. Wheelwright, 434. Whipple V. Fowler, 210. Whitaker v. Brown, 417, 418. V. Miller, 217. V. Shooting Club, 46a Whitbeck v. Cook, 444. Whitby V. Duffy, 419. y. Mitchell, 327. Whltcomb V. Taylor, 280. White V. Amdt, 20, 22. y. Bass, 363. y. Bond, 234. y. Brown, 199. y. Clarke, 94. y. Cutler, 61, 87, lOL y. Davidson, 431, y. Denman, 220. y. Fitzgerald, 2bX y. Foster, 214. 222. y. Godfrey, 422. y. Gouldin's Ex'rs, 72. y. Hampton, 231. y. Hicks, 316. v. Howard, 277, 474. V. Kinley, 125. v. Maynard, 163. V. Moses, 487. v. Patten, 446, 455. V. Railway Co., 168. V. Rittenmyer, 184. y. Story, 98. V. White, 103. 217. V. Whitney, 448. v. Williams, 193, 194, 424. V. Willis, 87. Whiteaker y. Belt, 104, 111, Whited V. Pearson, 110. Whitehead v. Bennett, 16. y, Foley, 461. y. Hall, 235. y. Middleton, 91. y. Rennett, 325. Whitelock V. Hutchinson, 873. White's Adm'r v. White, 114. White's Appeal, 12. White's Bank of Buffalo y. Nichols, 422. Whitesides y. Cooper, 287, 447. Whitfield y. Bewlt, 66. Whiting v. Adams, 201, V. Bank, 490. v. Brastow, 13. V. Edmunds, 464. 582 CASES CITED. [The figures refer to pages.] Whiting ▼. Gould, 2G2, 263, 267. V. Xichols, 111. V. Whiting, 262. Whitley V. Gough, 409. Whltlook's Case, 319. Whitmarsh v. Cutting, 9. V. Walker, 8. Whltmire v. Wright, 87. Whitney v. Allaire, 133. V. Buckman, 184. V. McKlnney, 244. V. Marshall, 85. V. Olney, 426. V. Parker, 346. V. Salter, 289. Whittacre v. Fuller, 229. Whittelsey v. Hughes, 249. Whittlesey v. Fuller. 338. Whyddon's Case, 436. Whyte V. Mayor, etc., of Nashville, 101, 102. Wickham v. Hawker, 373. WIckliffe V. Ensor, 460. WIckllffe's Ex'rs v. Preston, 477. Wickman v. Robinson, 194. WIggenhom v. Kountz, 5. Wiggins V. Chance, 121. V. Klrby, 460. V. Lusk, 434. V. McCleary, 358. Wight V. Leigh, 259. V. Shaw, 454. Wlghtman v. Laborde, 103. V. Schleifer, 106. Wilber v. Sisson, 154. Wilburn v. SpoEford, 321. Wilcox V. Bates, 187, 188. V. Cate, 142. V. Hill, 214. V. Randall, 106. 407. V. Wheeler, 37. V. Wilcox, 110. Wilcoxon V. Osborn, 438, Wilde V. Cantillon, 165. Wilder V. Haughey, 116. V. House, 165. V. Ireland, 443. V. Ranney, 314. Wlldey V. Bonney's Lessee, 344. Wiles V. Wiles, 72. Wiley V. Ewalt, 385. V. Sirdorus, 417. Wilken V. Young, 338, 343. Wilkes V. Holmes, 318. V. Leuson, 427. V. Lion, 285. Wilkes-Barre v. Wyoming Historical & Geological Soc, 37. Wilkins v. Jewett, 367. Wilkinson v. Buist, 317. V. Duncan, 325, 828. V. Haygarth, 342. V, Parish, 03. V. Proud, 374. V. Scott, 427. V. Suplee. 351. V. W^ilkinson, 64. Wllks V. Back, 432. Willard, In re, 234. V, Cramer, 438. V. Harvey, 230. V. Olcott. 175. V. Reas, 192. V. Rogers, 146. V. Warren, 145. V. WMllard, 345. V. Worsham, 208. Willcox V. Foster, 230. Willets V. Burgess, 206. Willey V. Laraway, 111. William Deering & Co. v. Beard, 121. Williams v. Angell, 294. V. Barber, 353. V. Barrett, 89. V. Chambers-Roy Co., 189. V. Clark, 356. V. Coade, 267. V. Deriar, 159. V. Dorris, 119. V. Downing, 407. V. Earle. 136. V. Evans, 272. V. Everham, 207. V. FoUett, 241. V. Green, 436. V. Haddock, 24. V. Hall, 118, 425. V. Hayward, 377. V. Insurance Co., 199. V. James, 3(>1. V. Jenkins, 117. V. KeiT, 247. V. Kimball, 479. y. McAliley, 467. CASES CITED. 5S3 [The figures refer to pages.] Williams V. McCarty, 193. V. Martzger, 241. V. Merslion, 150. V. Moody, 207. V. Holland, 3U9. ■ V. Pollard, 487. V. Railroad Co., 302. V. Hand, 4G6, V. Safford, 356, 3G1. V. Shelden, 340. V. Smith. 219. V. Starr, 123, 229, 429. V. Thurlow. 207, V. Vanderbilt, 152, 153. V. Vreeland, 271. V. Washington, 249. V. Wethered, 116. V. Whitaker, 114. r, Willis, 118. V. Woodard, 319. V. Woods, 90. Williams' Appeal, 377. Williams' Case, 78, 99. Williamson v. Brown, 214. V. Hall, 424. 425. V. Jones, 4, 64. V. Railway Co., 15. V. Wachenheim, 393. Williamston & T. Ry. Co. v. Battle, 168. Williard v. Ware, 316. Willingham v. Hardin, 223. Willion V. Berkley, 46, 47. Willis V. Bucher, 49. V. City of Perry, 371. V. Gay, 193. V. Henderson, 246. V. Martin, 309. Willison V. Watkins, 158. Wllloughby V. Horridge,- 380. Wilson V. Beckwith, 426. V. Bigger, 385. V. Branch, 386. V. Cochran, 113, 443. V. Denig, 290. V. Dresser, 34. V. Duguld, 313. V. Edmonds, 61, 65. T. Forbes, 6, V. Goldstein, 151. V. Henfy, 462. V. Hunter, 185, 214, 485. Wilson V. Johnson, 420. V. McCullongh, 215. V. Mackreth, 375. V. Martin, 163. V. Miller, 214. V. Oatman, 97. V. Parker, 61, 289. V. Patrick, 188. V. Piggott, 313. V. Proctor, 115. V. Traer. 438. V. Troup, 311, 319, 32L V. Welch, 5. V. White, 302. V. Wilson, 184. V. Wright, 185. Wilsons V. Doe, 491. Wilt V. Franklin, 435. Wilton V. Mayberry, 204, Wimbledon and Putney Commons Conservators v. Dixon, 360. Wimer v, Simmons, 370. AVinaus v. Peebles, 387. Winborne v. Downing, 440. Winchester v. Charter, 393. Wineman v. Hughson, 148. r. Phillips, 149. Winlield v. llenning, 351. Wing V, Gray, 17. Winkler v. Winkler's Ex'rs, 78. Winn V. Abies, 465. V. Ingilby, 18. V. Strickland, 144. Winne, In re, 74. Winona & St. P. R. Co. v. St. Paul & S. C. R. Co., 273. Wlnslow V. Insurance Co., 15, 21. Winsor v. Mills, 395. Winsted Sav. Bank v. Spencer, 439. Winter v. Brockwell, 358. Winterbottom v. Pattison, 433. Wintermute v. Light, 8, Winters v. Mining Co., 208, 242. Winthrop v. Fairbanlis, 418, V. Minot, 344. Winton's Appeal, 248. Wiscot's Case. 50. 334. Wisdom V. Reeves, 429. Wiseman v. Lucksinger, 166, 350, 351, 353, Wissler v. Ilershey, 360. Wistar's Appeal, 346. 584 CASES CITED. (The figures refer lo pages.] Wltham V. Broonor, 255. V. Perkins, 74. Withers v. Baird, 438. V. Jenkius, 75, 77-79. V. Yeadon, 313. Withy V. Mumford, 449. Witmark v. Railroad Co., 153. Witt V. Rice, 204. Witter V. Damitz, 3G2. Wofford V. McKiuna, 420. Wolcott V. Sullivan, 135. W^olf V. Fleiscbacker, 110. V. Guftey, 152. V, Holton, 143. V. Johnson. 144. V. Wolf. 344. Wolfe V. Frost, IGG, 349. V. Van Nostrand, 302. Wood V. Appal, 423. V. Armour, 195. V. Bayard, 53. V. Beach, 410. V. Chambers, 393. V. Chapin, 410. V. Clark, 393. V. Fleet, 344. V. Fowler, 6, 423. V. Griffin, 143. V. Hawkins, 121. V. Hubbell, 133. V. Keyes, 98. V. Leadbitter, 1U8. V. Manley, 16G, 167. V. Mann, 213. V. Manufacturing Co., 185. V. Morehouse, 247. V. Noack, 154. T. Phillips, 340. V. Reed. 353. V. Saunders, 35G. V. Town of Edenton, 6. V. Trask, 184, 210. V. Truax, 383. V. Wallace, 91. V. Wand. 3G9. 372. V. Whelen, 20U. V. Wood, 301. Woodbury v. Aikin, 238. V. Luddy. 121. V. I'arshley. 168. V. Short, 471. Woodham v. Bank, 21, Woodhull V. Kosonthal, 147. Woodman v. Pitman, G. Woodruff V. MoHarry, 438. V. Mutschler, 227. V. Robb, 190. Woods, In re, 330. V. Dille, 262. V. Hilderbrand, 184. V. Huntlngford, 204. V. Shields, 248. V. Wallace. 91. V. Woods, 233. Woodward v. Boro, 221. V. Dowse, 103. V. Phillips, 201. V. Pickett, 196. Woodward-Holmes Co. v. Nudd, 93. Woodworth v. Carman, 188. V. Paige, 106. Wooldridge v. Lucas, 85. Woolever v. Knapp, 341. Wooliscroft V. Norton, 136. Woolley V. Holt, 184. Woolsey v. Donnelly, 161. Wooten V. Bellinger, 192. Worcester Nat. Bank v. Cheney, 238. Word V. Box, 462. Workman v. Greening, 187, 188. V. MlfHln, 153. Worman v. Teagarden, 170. Wormley v. Wormley, 269. Worrell v. Forsyth, 108. Worthiugton v. Gimson, 360. Worthy v. Johnson, 487. Wragg V. Comptroller General, 192. Wren v. Bradley, 173. Wright V. Brown, 489. V. Cartwrlght, 286. V. Ditzler, 120. V. Douglass, 261. V. Dunning, 119, 122. V. Gelvln, 85. V. Germain. 383. V. Henderson, 184. V. Herron. 49, 77. V. Jennings, 60. V. Lake, 19(5. V. Langley, 217. V. Macdonell. 23. V. Macdonnell, 143. V. Pearson, 258. V. Sperry, 195. CASES CITED. 585 [The figures refer to pages.] Wright V. Tallmadge, 309. V. Tichenor, 461. V. Trevezaut, 132. V. Westheimer. 119. V. Wright, 38, 305, 312. Wronkow v. Oakley, 107. Wuestcott V, Seymour, 421. Wunderle v. Wunderle, 388. Wusthoff V. Dracourt, 57. W. U. Tel. Co. V. Bullard, 166. Wyatt V. Barwell, 218. V. Irrigation Co., 34. V. Smith. 80. Wyatt's Estate. 60. Wyman v. Brigden, 41. V. Brown. 255, 2U8, 299. V. Hooper, 210. Wynkoop v. Burger, 360, 361. V. Cowing, 187. Wynne v. Hudson, 121, 124. Yale V. Flanders, 430. V. Seely, 8. Yancey v. Tatlock, 446. Yard's Appeal, 328. Yaryan v. Shriner, 192. Yates V. Kinney, 154. V. Van De Vogei't, 459. Yearworth v. Pierce, 17. Yeates v. Gill, 478. Yeaton v. Roberts, 284. Yellow River Imp. Co. r. Wood Co. 379. i:elverton v. Hlllard, 466. Young, In re, 288. Young V. , 370. V. Anon., 370. V. Board man, 109. V. City of Boston, 163. V. Guy, 224. V. Langbein, 77. V. Miles' Ex'rs, 272» V. Miller, 244. V. Morehead, 92. V. Morgan, 203. V. Omohundro, 200. V. Ruth, 209. V. Spencer, 65. V. Tarbell, 91. 101. V. Thrasher, 93, 97. V. Young, 305. Youngblood v. Eubank, 19. V. Vastine, 224. Younge v. Guilbeau, 435. Younghusband v. Gisborne, 397. Youngman v. Railroad Co., 1U6, 218. Younts V. Starnes, 455. Youse V. Norcum, 386. z Zabrlskie v. Railroad Co., 273. Zacbarias v. Zaeharias, 274. Zackry v. Lockard, 83. Zaegel v. Kuster, 234. Zane v. Kennedy, 319. Zebach v. Smith, 314. Zimmerman v. Lebo, 109. Zoller V. Ide, 430. Zorntlein v. Bram, 338. Zuver T. Lyons, 26L. INDEX. [THE FIGURES REFER TO PAGES.] A ABANDONMENT, of homestead, 121. destruction of easements by, 357. of possession by joint disseisor, 460. of title by adverse possession, 4G9. ACCEPTANCE. of deeds, 433. ACCOUNTING, by mortg-agee, 199. debits, 200. credits, 201. annual rests, 202. between co-tenants, 341. ACCRETION, title by, 470. alluvion, 470. ACCUMULATIONS, rule against, 330. application to charitable trusts, 276. ACKNOWLEDGMENT, of deeds, 436. ACTIONS, for breach of covenant of warranty, 449. real and personal, 1. affecting joint estates, 343. ACTIVE TRUSTS, Incidents of, 272. ACTIVE USES, statute of uses does not operate on, 254. REAL PROP. (587) 588 INDEX [The figures refer to pages.] ACTUAL NOTICE, 213. ADAPTATION FOR USE. as test of character of fixture, 16. ADVANCEMENTS, 481. ADVERSE POSSESSION, by mortgagor against mortgagee, 195. against remahider-man, 464. by joint disseisors, 466. possession by trustee not, 274. abolished under system of registered titles, 414. title by, 456. requisites of, 456. seisin and disseisin, 458. effect of descent cast, 459. must be actual, 459. ouster necessary, 459. color of title, 460. disseisin, Intention necessary, 460. must be visible or notorious, 460. what possession is adverse, 463. when possession up to division fence is adverse, 468. must be exclusive, 465. must be continuous, 466. tacking, 466. against whom possession is aa verse, 468. length of possession necessary, 469. abandonment, 469. ADVOWSONS, 849. AFFINITY. relationship by, 483. AFFIRMATIVE EASEMENTS. 354. AFTER-ACQUIRED PROPERTY, may be mortgaged, 185. AFTER-ACQUIRED TITLE, mortgagee may set up against his assignee, 211. AGENTS, leases by, 131. AGREEMENT TO MORTGAGE^ treated as a mortgage, 191. AGRICULTURAL FIXTURES, 17. INDEX. 689 [Tbe figures refer 'co pages.] AIDS, incidents of tenure, 29. ALIENAGE, as defeating dower, 103. ALIENATION, see "Restraints on Alienation.'* history of right of, 390. power of, when acquired, 45. of fee simple, 39. voluntary and involuntary, 40. of life estates, 59. of estate during coverture, 72. of homestead, 122. of tenancies from year to year, 160. of future estates, 305. of franchises, 379. destruction of common appurtenant by, 3T.j. by disseisor, 467. clauses forbidding, 394. clauses of forfeiture for, 394. ALIENS, capacity of to hold and convey realty, 387. inheritance by, 388. naturalized citizens, 388. title of divested by office found, 388. ALLODIAL, land declared to be, in many states, 31. ALLUVION, title by, 470. ALTERATION OF ESTATE, revocation of devise by, 478. ALTERATIONS, in deeds, 428. ALTERNATE REMAINDERS, 287. AMBIGUITIES, latent, in description of property, 420. A.NCESTOR, defined, 479. ANCESTRAL LANDS AND COLLATERAL HEIRS, 483. 690 INDEX. [The figures refer to pa^es.] ANCIENT DEMESNE, defined, 27. ANNEXATION, as test of character of fixture, 18. constructive, 14. party making, 19. ANNUAL CROPS. not real property, 7. what are, 8. are Incorporeal hereditaments, 349. ANNULMENT OF MARRIAGE. defeating dower, 104. APPENDANT POWERS, 310. APPENDANT EASEMENTS, 354. APPOINTEES, of power defined, 307. classes of powers as to, 311. APPOINTMENT, powers of. 309. APPORTIONMENT, of rent, 377. in life estates, 60. in estates per autre vie, 68. in estates in dower, 102. APPURTENANCES, 425. APPURTENANT EASEMENTS, 354. ASCENDING LINES, in title by descent, 4S2. ASSIGNEE, of equity of redemption, rights of, 206. ASSIGNMENT, of dower, 95. of common right, 96. against common right, 96. when value estimated, 97. method of division, 98. by whom, 99. recovery by action, 100. of lease, 148. liability of assignee, 149, , INDEX. 591 [The figures refer to pages.] ASSIGNMENT— Continued, of equity of redemption, 20a. by operation of law, 208, of mortgage, 209. by operation of law, 21L of mortgage debt, 210. of trustee's title, 273. a common-law conveyance, 409. ASSUMED NAME, grantee in deed may be designated by, 416. ATTACHMENT, mortgagee's interest before foreclosure not subject to, 212. ATTORNEY, power of, to execute deed, 431. AT WILL, see "Tenancies at Will," 156. AUSTRALIAN SYSTEM, of registering titles. 413. n BANKRUPT AND INSOLVENT LAWS, 394. BARGAIN AND SALE, 410. BARRING ESTATE TAIL, 50. BASE FEES, 178. BENEFICIAL POWER, 320. BENEFICIARY, defined, 2G0. in charitable trusts may be^ indefinite, 276w BLANKS, fiUing, in deeds, 428. BLOOD, see "Half Blood." BOND FOR TITLE, may be mortgaged, 185. assignment of, may be a mortgage, 191 BOOM COMPANIES, rights of, 370. BOUNDARIES, desci'iption in deeds, 419. 592 INDEX. [The figures refer to page«.| BREACH, of covenant of warranty, action for, 449. BREACH OF CONDITIONS, termination of estates on condition, ITOw BRIDGES, franchises for, 380. BUILDINGS, horizontal ownership of, 366, CAESAREAN OPERATION, 74. CANONS OF DESCENT, 482. CAPACITY, personal, to hold and convey realty, SSI- CERTIFICATE, of acluiowledgment, 438. and patent, 402. of purchase in tax titles, 493. CESTUI QUE TRUST, defined, 260. rig'hts of, 271, interest of, 273, is disseised by disseisin of trustee, 468. CHARGES, on land under registered titles, 413. CHARITABLE TRUSTS, defined, 274. distinguished from private, 274. beneficiary indefinite, 276. doctrine of cy-pres, 276. perpetuities and accumulations, 276. creation of, 275. objects of, 275. CHARITIES, defined. 275, gifts to, application of rule against perpetuitle«, 320 CHATTEL FIXTURES, defined, 10. INDEX. 593 [The figures refer to pageau] CHATTEL INTERESTS, estate tail in,. 49. statute of uses does not operate on, 254. CHATTELS REAL, defined, 24. CHILDREN, illegitimate, 480. posthumous, 480. CIVIL LAW, computation of relationship by, 484. CLAIM OF TITLE, necessary in adverse possession, 465. CLASS, limitations to, and rule against perpetuities, 328 COLLATERAL HEIRS, defined, 484. and ancestral lands, 483. COLLATERAL POWERS, 311. COLOR OF TITLE, 460. COMMON, tenancies in, 335. rights of defined, 373. of estovers, 373. of pasture, 373. appurtenant and appendant, 373, of piscary, 373. of turbary, 373. rights of, in United States, 375. COMMON LAW, future estates at, 279. computation of relationship by, 484. conveyances, 405. powers, 308. theory of mortgage, 183. COMMON RECOVERY, 50. conveyance by married woman by, 888. COMMUNITY SYSTEM, 338. COMPENSATION, for land taken under right of eminent domain, 496. REAL PROP. — 38 594 INDEX. [The figures refer to pages.] COMPULSORY PARTITION, 344. CONDEMNATION OF LAND, under power of eminent domain, 494. CONDITION, estates on, see "Estates on Condition." CONDITIONAL FEES, what are, 45. CONDITIONS, precedent and subsequent, 170. void, 172. effect, 173. breach of, in estates on condition. 175. relief against, 175. subject to rule against perpetuities, 320. against alienation, 395. of forfeiture for alienation, 395. CONFIRMATION, a common-law conveyance, 408. CONFISCATION AND ESCHEAT, acquisition of title by, 399. CONGRESSIONAL SURVEY, 402. CONQUEST, acquisition of title by, 399. CONSANGUINITY, relationship by, 483. CONSIDERATION, for deeds, 427. CONSTRUCTION, of description in deed, 420. CONSTRUCTIVE NOTICE, by possession, 216. by lis pendens, 218. by registration, 218. CONSTRUCTIVE POSSESSION, seisin in law is, 32. in acquisition of title by adverse possession, 480. CONSTRUCTIVE TRUSTS. see "Trusts." CONTINGENCY, on which remainder may depend, 292. INDEX. 696 [The flgaires refer to pages.] ^ CONTINGENT INTERESTS, rule against pei-petuities applies to, 320. CONTINGENT REMAINDERS, Bee "Remainders," CONTINUOUS EASEMENTS, 354. CONTINUOUS POSSESSION, in acquisition of title by adverse possession, 468. tacking, 466. CONTRIBUTION. to redeem mortgage, 236. CONVENTIONAL EASEMENTS, 354. CONVENTIONAL LIFE ESTATES, 5a. CONVEYANCES, registration, see "Registration." priority of, 212. actual notice, 213. implied notice, 215. constructive notice, 216. possession, 216. recitals in title deeds. 2ia. lis pendens, 218. registration, 218. fraudulent 392. kinds of, 405. primary and secondary, 405. at common law, 405. feoffment, 405. gift, 406. grant, 407. lease, 407. exchange, 407. partition, 408. release, 408. confirmation, 408. surrender, 408. assignment, 409, defeasance. 409. under statute of uses, 409. covenant to stand seised, 410. bargain and sale, 410. lease and release, 411. 596 INDEX. [The figures refer to pages.] CONVEYANCES— Continued, modern statutory, 411. warranty and quitclaim deeds, 412. registered titles, 412. certificate of title. 413. under judicial process, 486. licenses, 48G. by guardian, 487. by personal representatives, 487. of settled estates, 488. decrees, 488. tax titles, 490. eminent domain, 494. COPARCENARY, estates in, 336. COPARCENERS, lease by, 132. COPYHOLD TENURE. 29. CORNERS. when lost, how located, 424. CORODIES, 349. CORPORATION, capacity to hold and convey realty, 389. deeds by, how signed, 430. CORPOREAL HEREDITAMENTS, 348. CO-TENANTS, accounting between, 341. COURSES AND DISTANCES, description by, 424. COVENANT. to stand seised, 410. creation of easements by, 351. Independent and dependent, 441. express, rights of landlord and tenant under. 134. Implied, rights of landlord and tenant under, 138. real and personal, 441. personal, In leases, 136. running with the land, in leases. 136. not subject to rule against perpetuities, 326. of title, 440. express and Implied, 440. INDEX. 697 [The figures refer to pages.i COVENANT— Continued, of seisin, 442. how broken, 442. when broken, 442. against incumbrances, defined, 444. how broken, 444. of warranty, defined, 446. how broken, 446. action for breach, 449. estoppel by, 454. special, 446. of quiet enjoyment, 448. for further assurance, 449. COVERTURE, estate during, 70. power of husband over chattels real, 71. power of husband over real estate, 71. alienation of, 72. separate estate, 72. equitable doctrine, 72. statutory changes, 73. abolished, 73. CREDITORS. whether constructive trust in favor of, 27L rights of, in powers, 320. restraints on alienation in favor of, 392. CROSS REMAINDERS, 286. CURTESY, defined. 73. requisites, 73. birth of issue, 74. Caesarean operation, 74. not necessary in Pennsylvania, 75. marriage, 74. seisin of wife, 75. death of wife, 76. initiate, 74. consummate, 76. In what estates, 76. estates of inheritance, 76. determinable estates, 77. equitable estates, 77. 598 INDEX- [The figures refer tc pages.] CURTESY— Continued, estates in expectancy, 79. joint estates, 79. Incidents. 79. alienation, 80. liability for debts, 80. how defeated, 81. alienage, 81. annulment of marriage, 81. conveyance by wife, 81. desertion, 81. devise, 81. forfeited by feoffment, 8L statutory changes, 82. CY-PRES. application of doctrine of, to charitable trusts, 278. D DATE, whether requisite in deeds, 428. DEATH OF HUSBAND, requisite of dower, 85. dower consummate by, 85. DECREE. for deficiency in foreclosure, 24L of sale in foreclosure, 248. conveyance under, 488. DB DONIS CONDTTIONALIBUS. statute of, creating estates tail, 44, 46. DEED, when required in creation of estates for years, 132. absolute may be a mortgage, 187. of trust may be a mortgage, 190. defined, 415. requisites of, 414. designation of grantee, 4ia granting clause, 416. names of parties, 416. words of conveyance, 410. • exceptions, 417. reservations, 418. INDEX- 599 [The figures refer to pages.] DEED— Continued, habendum, 418. description of property, 419. plats and maps, 421. monuments, 422. courses and distances, 424. quantity, 425. appurtenances, 425. execution of the writing, 426. what writing necessary, 427. consideration, 427 date, 428. alterations, 428. filling blanks, 42a reading, 429. sealing, 429. signing, 430. power of attorney, 431. Indentures and deeds poll, 432» delivery and acceptance, 433. delivery In escrow, 435. acknowledgment, 436. registry, 439. witnesses, 439. estoppel by, 453. under tax titles, 492. poll and Indenture, 432. DEFEASANCE, a common-law conveyance, 409. DEFICIENCY, decree for in foreclosure, 241. DEFINITE FAILURE OF ISSUE, 326. DEGREES OF RELATIONSHIP, how computed, 484. DELIVERY, of deeds. 433. in escrow, 433. DEMESNE. tenants in, 35. DENYING LESSOR'S TITLE, lessee estopped, 143. 600 INDEX. [The figures refer to pages.] DEPENDENT COVENANTS, in deeds, 441. DEPOSIT OF TITLE DEEDS, may be a mortgage, 192. DESCENDING LINES. in title by descent, 482. DESCENT. of future estates, 300. and purchase, 399. title by, 478. what descends to heirs, 479. illegitimate children, 480. posthumous children, 480. advancements, 481. hotchpot, 482. canons of, 482. descending and ascending lines, 482. preference of males, 482. in collateral lines, 485. collateral heirs and ancestral lands, 483. per stirpes and per capita, 483. primogeniture, 483. whole and half blood, 485. escheat, 485. DESCENT CAST, what Is, 459. effect of, on right of entry, 439. DESCRIPTION OF PROPERTY, In deeds, 419. In wills, 473. DESTRUCTION. of vested remainders, 289. of contingent remainders, 293. liability to, removed by statute, 293. of powers, 321. of easements, 357. of profits a prendre, 375. of premises, termination of estates for years by, 153. DETERMINABLE ESTATES, curtesy in, 77. dower in, 88. INDEX. 601 rrhe figures refer to pages.] DETERMINABLE FEES, 17a DEVICES, to bar dower, 105. DEVISES, executory, see "Executory Devise.** shifting, see "Shifting Devise." creation of fee simple by, 38. title by. 472. requisites of, 472. nature of, 475. operative words in wills. 473. what can be devised, 474. what law governs, 474. renunciation of, 475. revocation by alteration of estate, 4781. lapsed devises, 477. DISABILITY OF PERSONS, affecting title by adverse possession, 468. DISCHARGE, of mortgage, 227. by payment, 227. by performance, 227. by tender, 230. by merger, 231. by redemption, 233. form of, 238. DISCONTINUOUS EASEMENTS, 354. DISCOVERY, acquisition of title by state by, 399. DISSEISEE. leases by, 131. DISSEISIN. by mortgagor, 195. equitable estates, lost by, 274. of joint owner, 340. what is. 404. leaves mere right of entry, 458. giving title by adverse possession, 45i DISSEISOR. alienation by, 467. 602 INDEX. [The figures refer to pages.] DISTANCES, description by courses and, 424. DISTRESS, for rent, 145. an incident of rent service, 376. DIVISION LINES, estoppel In pais, 453. DIVORCE, defeating dower, 104. DOMESTIC FIXTURES, 18, DOMINANT ESTATE, 350. DONEE. of estate tail, 42. of power, 307. classes of powers as to, 31o. DONOR, of estate tall, 42. of power, 307. DOWER. defined, 83. requisites, 83. marriage, 84. seisin of husband, 84. transitory, 84. death of husband, 85. inchoate, 84. consummate, 85. In what estates, 86. estates of inheritance, 88. in estate tail, 72. In rents, 87. lands capable of enjoyment, 87. Inheritance by issue, 88. determinable estates, 88. equitable estates, 89. mortgages, 89. estates in expectancy, 91. dower out of dower, 9L joint estates, 92. partnership lands, 93. quarantine, 94. INDEX. 603 [The figures refer tc pages.] DOWER -Continued, assignment. 95. of common right, 96. against common right, 96. when value estimated, 97. method of division, 98. by whom assigned, 99. recovery by action, 100. Incidents, 101. emblements, lOL estovers, 101. repairs, 101. waste, 101. apportionment of rent, 102. Improvements, 102. taxes, 102. how defeated, 102. alienage, 108. elopement and adultery, 103. annulment of marriage, 104. loss of husband's estate, 104. conveyance by husband, 105. devices to bar, 105. release by wife, 106. Jointure, 107. widow's election, 109. testamentary provision, 109. statutory provision, 110. estoppel, 110. statute of limitations and laches, IIL waste, 111. statutory changes, 112. right of, not breach of covenant of seisin, 444. DRUNKARDS. capacity to convey real property, 385. E EASEMENTS, defined. 349. essential qualities, 350. distinguished from licenses, 350. dominant estate, 350. servient estate, o50. 604 INDEX. [The figures refer to pages.] EASEMENTS— Continued, creation, 350. by grant, 350. by parol, 351. by covenants, 351. by prescription, 352. equitable. 351. classification, 354. appendant or appurtenant and In gross, 354. continuous and discontinuous, 354. natural and conventional, 354. negative and affirmative, 354. Incidents, 355. obstruction, 356. repairs, 356. use of easements, 356. destruction, 357. by release, 357. by abandonment, 357. by license, 357. by misuser, 357. by merger, 357. specific, 359. rights of way, 359, repair of, 361. highways, 361. dedication, 362. light and air, 363. lateral and subjacent support, 365. horizontal, ownership of buildings, 366. party walls, 366. In water, 368. surface waters, 371. subterranean waters, 371. eaves' drip, 372. artificial water courses, 372. existence of, not breach of covenant of seisin, 444. as breach of covenant against incumbrances, 444. EAVES' DRIP, 372. EJECTMENT. termination of estate on condition by, 174. INDEX. 605 [The figures refei- to pages.] ELECTION. testamentary provision In lieu of dower, 109. statutory provision in lieu of dower, 110. ELOPEMENT. defeating dower, 103. EMBLEMENTS, what are, 8. an incident of life estates, 61. of estate during coverture, 71. of dower, 101. of estates for years, 143. of tenancies at will, 156. of tenancies from year to year, 160. tenant at sufferance not entitled to, 164. mortgagor no right to, 196. right of tenant of mortgagor to, 196. EMINENT DOMAIN, termination of estates for years by, 153. taking franchises under, 379. acquisition of title under, by state, 399. taking land under, not breach of covenant of warranty, 448. title by, 494. compensation for land taken under righi of, 495. ENTAIL. see "Estates Tail." barred by common recovery, 51. ENTIRETY. estates in, 337. ENTRY. right of, to defeat estate on condition, 174, 178. and possession, foreclosure by, 243. on public lands, 402. EQUITABLE WASTE, 62. EQUITABLE CONVERSION, defined, 23. EQUITABLE EASEMENTS, 351. EQUITABLE ESTATES, 251. curtesy in, 77. dower in, 89. mortgages, 89. 606 INHEX. [The figures refer to pages.] EQCTTABLE ESTATES— Continued, homestead in, 116. use and trust defined, 252. etatute of uses, 253. when statute does not operate, 254. classification of trusts, 257. executed and executory trusts, 258. express trusts, 258. creation, 2G0. limitation of trustee's estate, 261. precatory words, 261. statute of frauds, 262. parties. 263. Implied trusts, 264. resulting trusts, 265. legal title only conveyed, 266. consideration paid by another, 267. failure of object of trust, 267. deed to wife or child, 268. constructive trusts, 269. 'fraud an essential element of, 269. devise procured by fraud, 270. in favor of creditors, 271. Incidents, 271. active trusts, 272. passive trusts, 271. interest of trustee, 272. Interest to cestui que trust, 273. liability for owner's debts, 274. lost by disseisin, 274. possession by trustee not adverse, 274. subject to rule against perpetuities, 327. EQUITABLE THEORY, of mortgage, 183. EQUITABLE RIGHTS, may be mortgaged, 185. EQUITY OF REDEMPTION, no mortgage without, 205. assignment of, 205. rights of assignee, 206. by operation of law, 208. INDEX. 607 [The figures refer to pages.] ESCAMBIUM. must be used in common-law exchange, 407. BSCHEAT, an incident of tenure, 30. acquisition of title by, 399, 485. ESCROW. delivery of deed in, 435. ESTATES, defined. 33. classification of, 33. of freehold, 34. quantity of, 34. of inheritance, 35. dower in, 86. dower in rents, 87. in fee simple, 35. estates tail, 42. life estates, 55. restraints on alienation of, 395. per autre vie, 67. general occupancy, 68 incidents of, 68. conventional life estates, 56. legal life estate, estates by marriage, 6a during coverture, 70. curtesy, 73. dower, 83. less than freehold, 128. as to quality, 169. on condition, 169. mortgages, 169. on limitation, 177. as to time of enjoyment, 279. present and future, 279. in expectancy, dower in,' 91. as to number of owners, 332. joint estates, 332. unknown forms cannot be created, 40. particular, 284. powers distinguished from, 308. ESTATES FOR YEARS, defined, 128. 608 INDEX. [The figures refer to pages.] ESTATES FOR TEARS— Continued, history of, 129. creation, 130. contract or devise, 130. lease and agreement for lease, 130. who may create, 131. form, 132. commencement, 133. duration, 133. interesse termini, 133. rights and liabilities of landlord and tenant, see "Landlord and Tenant' transfer, 147. by lessor, 147. by lessee, 148. by operation of law, 149. termination, 150. lapse of time, 150. forfeiture, 150. merger, 152. surrender, 152. taking into power of eminent domain, 153. destruction of premises. 153. letting land on shares, 154. homestead in, 116. restraints on alienation of. 390. ESTATES IN COPARCENARY, partition of, 344. ESTATES IN ENTIRETY, 337. in the United States, 338. partition of, 344. ESTATES IN EXPECTANCY, see "Future Estates." ESTATES IN PARTNERSHIP. 339. ESTATES ON CONDITION. distinguished from estates on limitation, 17T, conditions precedent and subsequent, 170. void conditions, 172. effect of, 173. termination, 174. who can enforce a forfeiture, 176. INDEX. 60* [The fisrures refer to pages.] ESTATES ON LIMITATION. defined, 177. distinguished from estates on condition, 177. base or determinable fees, 178. ESTATES TAIL, defined, 42. donor and donee, 42. classes of, 43. general tail, 43. special tail, 43. male, 44. female, 44. origin, 44. creation of, 47. words of limitation, 47. words of procreation, 47. In chattel interests, 49. incidents of, 49. tenant need not pay interest on Incumbrances, 49. curtesy, 50. dower, 50. merger, 50. duration of, 50. barred by common recovery, 50. by fine, 51. by deed, 52. in United States, 52. abolished in some states, 53. tenant in tail after possibility of issue extinct, 52. In estates per autre vie, 54. quasi entail, 53. restraints on alienation of, 395. ESTATE TAKEN BY PURCHASER, at tax sale, 493. ESTOPPEL. dower defeated by, 110. to deny lessor's title, 143. tenant at sufferance, 164. title by, defined, 450. in pais, 451. division lines. 453. by deed, 453. KEAL PROP.— 39 610 INDEX. [The figures refer to page«.l ESTOPPELr-Contlnued, by covenants of warranty, 454. by quitclaim deed, 454. by recitals, 454. in conveyance by joint tenants, 455. of married women, 455. ESTOVERS. house bote, 61. fire bote. 61. hay bote. 61. plough bote, 61. Incidents of life estates, 61. of dower, 101. of tenancies from year to year, 160. mortgagor entitled to, 195. common of, 373. EVICTION. extinguishment of rent by, 378. EXCEPTIONS, In deed, 417. EXCESSIVE EXECUTION, of powers, 318. EXCHANGE, a common-law conveyance, 407. EXCLUSIVE FRANCHISES, may be protected as contracts, 379. EXCLUSIVE POSSESSION. necessary in acquisition of title by adverse possession, 465. EXCLUSIVE POWERS, 312. EXECUTED TRUSTS, 258. EXECUTION, interest of tenant at will cannot be sold on, 156. mortgagee's interest before foreclosure not subject to, 212. purchasers at, when protected under recording act, 225. of powers. 314. form of, 315. time of, 317. compelling, 318. defective, 318. excessive, 318. INDBX. 611 [Tbe figures refer to yagea.] EXECUTORS. leases by, 131. EXECUTORY DEVISES, defined, 300. destruction of. 302. alienation, 305. descent of, 306. EXECUTORY TRUSTS. 258. EXEMPTIONS. see "Homestead." EXPRESS COVENANTS, rights of landlord and tenant under, 134. in deeds, 440. EXPRESS TRUSTS, see "Trusts." F FAILURE OF ISSUE. rule against perpetuities, 326. FAILURE OF OBJECT. of resulting trust, 267. FEDERAL HOMESTEAD ACT, 126. FEE, defined, 35. under feudal system, 27. FEE CONDITIONAL. at common law, 45. became estates tail. 45. FEE FARM RENTS, 375. FEE SIMPLE, defined. 35. creation, 36. by deed. 36. words of limitation, .^6- in quitclaim deed, 37. by devise, 38. by joint tenant, 37. right of user, 39. alienation, 39. voluntary, 40. involuntary, 40. restraints on, 395. €12 INDEX. [The figures refer to pages.] FEE TAIL. see "Estates Tall." FENCES. pai-tition, 3G8. when possession up to Is adverse, 403. FEOFFMENT. defined, 405. tortious, operation of, 406. FERRIES. rights to operate are franchises, 379. personal property In Iowa, 379. FEUDAL SYSTEM. 26. FEUD. defined, 27. FICTITIOUS PERSON, deed to, void, 416. FIEF. defined, 27. FILLING BLANKS, in deeds. 428. FINE, barring estate tail by, 51. conveyance of married woman by, 386. FIRE BOTE, defined, 61. FIRST PURCHASER, inheritance of ancestral lands by Issue of, 484. FISH, rights of common, 874. FIXTURES. defined and classified, 10. real and chattel. 10. what are removable, 11. intention the test of character, 12. character determined by express contract, 12. by statutory regulation, 12. by annexation, 13. constructive annexation, 14. by adaptation for use of realty, 15. INDEX. 613 [The figures refer to pages.] FIXTURES— Continued, by nature, 16. trade fixtures, 16. agricultural fixtures, 17. domestic fixtures, 18. by party making annexation, 19. time of removal, 22. covered by mortgage of land, 185. removal of, breach of covenant of warranty, 448. FORECLOSURE, see "Mortgage." FORFEITURE. an incident of tenure, 80. re-entry for, 150. termination of estates for years by, 150. of estate on condition, vpalver, 175. who can enforce, in estates on condition, 176. of particular estate may destroy contingent remaindor, 293. of franchises. 379. for alienation, clauses of, 394. of title for nonpayment of taxes, 490. FOSSILS. are real property, 7. FRANCHISES, defined. 378. are incorporeal hereditaments, 349. alienation, 379. forfeiture, 379. taken under right of eminent domam, 379. ferries. 379. personal property in Iowa, 379. for bridges on turnpike roads, 380 FRANKALMOIGNE. defined, 28. FRAUD, see "Statute of Frauds." an essential element of constructiv*' trusts. 260. FRAUDULENT CONVEYANCE, restraints on alienation, 392. when conveyance of homestead is not, 393. test of. 393. marriage a valuable consideration, 393. G14 INDEX [The figures refer to pages.] FREE ALMS, tenure by, 28. FREE AND COMMON SOCAGE, tenure in, 28. FREEHOLDS, defined, 34, when long terms of years are, 35. in future. 284. estates for years may be created In futuro, 133. FRUCTUS INDUSTRIALES, defined, 9. FURTHER ASSURANCE, covenant for, 449. FUTURE ACCESSIONS, covered by mortgage, 185. FUTURE ADVANCES, mortgages for, 224. FUTURE ESTATES, defined, 279. curtesy in, 79. dower in, 91. homestead In, 117. may be mortgaged, 184. at common law, 279. reversions, 280. possibility of reverter, 281. remainders, 281. how created, 282. when they must take effect, 283. freehold in futuro, 284. the particular estate, 284. distinguished from shifting uses and devises, 285^ cross, 286. successive. 286. alternate, 287. vested, 288. remainders to a class, 288. destruction of, 289. contingent, 289. . - distinguished from rested, 290. estates which will support, 291. INDEX. 615 [The Q.^ures refer to pages.] FUTURE ESTATES— Continued, New York Code definition of, 291. test of, 291. contingency on which remainder may depend, 292. destruction of, 293. by destruction of particular estate, 293. by expiration of particular estate, 293. by forfeiture of particular estate, 293. by merger of particular estate, 293. trustees to preserve, 293. liability to be destroyed removed by statute, 293. rule In Shelley's Case, 295. under statute of uses, 298. future uses, 298. springing uses. 299. shifting uses. 300. under statute of wills, 300. executory devises, devises presumed to be In praesentl, 301. executory devises, destruction of, 301. incidents of, 302. tenure, 303. waste, 304. alienation, 305. descent of. 306. FUTURE USES, defined, 298. statute of uses does not operate on, 254. descent of, 306. FUTURO. freehold In, 284. o GENERAL OCCUPANCY, of estates per autre vie, 68. GENERAL POWERS, 312. GERMAN GRUNDBUCH, 413. GIFT. creation of estate tail is, 42. GIFTS TO CHARITIES. application of rule against perpetuities, 829. GLOUCESTER, statute of, 66. 616 INDBX. [The figrures refer to pages.] GRAND SERJEANTY, defined, 28. GRANT. creation of easements by. 350. from state to private persons, 401. a common-law conveyance, 407. GRANT AND DEMISE. implied covenant by, 440. GRANTEE. In deed, designation of, 416. GRANTING CI.AUSE. requisites of, In deeds. 417. GRANTORS, of joint estates not competent witnesses for each other, 439. GROSS, powers in, 310. GRUNDBUCH. the German, 413. GUARDIANS, leases by, 131. conveyances by, 487. HABENDUM, in deeds, 418. HALF BLOOD, descent to, 485. HAY BOTE, defined. 61. HEAD OF A FAMILY, who is. 113. HEIRS. as word of limitation of fee simple, 87. who are. 479. collateral, defined, 484. and ancestral lands, 483. what descends to, 497. HEREDITAMENTS. defined, 3. corporeal and Incorporeal, 348. INDEX. 617 [The figures refer to pages.] HIGHWAYS, defined, 361. dedication of, 362. as boundaries, 422. HOMESTEAD, defined. 112. origin, 112. head of a family, who Is, 118. who entitled to, 113. duration of, 115. in what estates, 116. amount of exemption, 117. urban and rural, 117. how acquired, 118. occupancy, 118. recorded notice, 119. selection, 120. how lost. 120. abandonment, 121. alienation, 122. waiver, 122. privileged debts, 124. debts contracted before incumbrances, 124. debts contracted before passage of homestead law, 124. debts contracted before acquisition, 124. liabilities for tort, 124. liens for creation, improvements, and preservation, 124. public debts, 124. federal. 126. when conveyance of not fraudulent, 393. HORIZONTAL DIVISION. of realty, 4. easements created by, 365. HOSTILE POSSESSION. necessary in acquiring title by adverse possession, 463. HOTCHPOT, 482. HOUSE BOTE, defined, 61. I ICE. by whom owned, 6. IDIOTS. capacity to hold and convey real property, 383. 618 INDEX. [Tlie figures refer to r^gen.} IMMOVABLES, and movables, 3. IMPLICATION, ways of necessity by, 359. IMPLIED COVENANTS, rights of landlord and tenant under, 138. by lessor. 138. by lessee, 139. to pay rent, 140. In deeds. 440. IMPLIED NOTICE. 215. IMPLIED TRUSTS, see "Trusts." IMPROVEMENTS, by life tenant, 61. by dowress, 102. covered by mortgage, 185. by mortgagor, 195. in partition of Joint estates, 846. INCLOSURE. as evidence of adverse possession, 459. INCORPOREAL HEREDITAMENTS, defined, 348. Ivinds of, 348. easements, 349. distinguished from licenses, 350. dominant estate, 350. servient estate, 350. essential qualities, 350. creation, 350. by grant, 350. by covenants, 351. by parol, 351. by prescription, 352. classification, 354. appendant or appurtenant and in gross, 8&L continuous and discontinuous, 354. natural and conventional, 354. negative and affirmative. 354. Incidents, 355. use of easement, 356. INDEX. 6i9 [The figures refer to pages.] INCORPOREAL HEREDITAMENTS— Continued, repairs, 356. obstruction, 356. destruction, 357. by abandonment, 357. by license, 357. by merger, 357. by misuser. 357. by release, 357. specific easements, 359. rights of way, 359. repair of, 361. highways, 361. light and air, 363. lateral and subjacent support, 365. horizontal ownership of buildings, 368. party walls, 366. partition fences, 368. in water. 368. subterranean waters, 371. surface water, 371. eaves' drip, 372. artificial water courses, 372. profits a prendre, 373. rents, 375. effect by quia emptores, 376. charge and seek. 375. service, 375. application of merger, 378L franchises, 378. alienation, 379. forfeiture. 379. taking under eminent domain, 379. for ferries, 379. for bridges and turnpike roads, 380. INCUMBRANCES, tenant in tail need not pay off, 49. Interest on, payment by life tenant, 60. INDEFEASIBLE SEISIN, covenant of, 443. INDEMNITY FUND. under registered title, 414. 620 INDEX. [The figures refer to pages.] INDENTURES, and deeds poll, 432. INDEPENDENT COVENANTS, In deeds, 441. INFANTS. leases by, 131. power to hold and convey realty, 382. disseisin of, 468, INFEUDATION. defined, 27. INFORMAL MORTGAGE. may be effective in equity, 191. INHERITANCE, estates of, defined, 35, 76. by aliens, 388. by naturalized citizens, 388. INSANE PERSONS, capacity to hold and convey realty, 383. disseisin of, 468. INSOLVENT LAWS. 394. INSURANCE. on mortgaged premises, 197. INTENTION TO DISSEISE, necessary for title by adverse possession, 460. INTERESSE TERMINI, 133. INTEREST, unity of, In joint tenancies, 333. INTOXICATED PERSONS, leases by, 131. IRRIGATION. rights to water, 370. ISSUE. failure of, 326. J JOINT DISSEISOR. abandonment of possession by, 408. JOINT ESTATES, curtesy in, 79. dower in, 92. partnership lands, 93. INDEX. 621 [The figures refer to pages.] JOINT ESTATES— Continued, letting land on shares may create, 154. defined, 332. joint tenancies, 333. tenancies in common, 335. estates in coparcenary, 336. estates in entirety, 337. in the United States, 338. community system, 338. estates in partnership, 339. incidents of, 340. possession and disseisin, 340. accounting between co-tenants, 341. repairs and waste, 342. actions affecting, 343. transfer of, 343. partition, 344. method of division, 345. question of title cannot be settled, 345. failure of title. 34G. compulsory, warranty of title, 346, Improvements, 346. grantors of, not competent witnesses for each other, to deed, 439. estoppel In conveyance of, 455. JOINT MORTGAGES, 336. JOINT OWNER. what is disseisin of, 464. JOINT TENANCIES, 333. unities, 333. conveyances by one tenant, 334. partition of, 344. JOINT TENANT, lease by, 132. JOINTURE. legal and equitable, 107. JUDGMENT, ~ reversal of, effect on title, 490. JUDGMENT CREDITORS. when protected under recording acta, 225. JUDGMENT LIEN, as breach of covenant against incumbrances, 445. 622 INDEX. [The fl^urea refer to pas»^.] JUDICIAL PROCESS, title by, 486. conveyances under licenses, 486. by personal representatives, 487. by guardians, 487. of settled estates, 488. conveyances under decrees, 488. specific performance, 488. partition, 488. sales on execution, 489. effect of reversal of judgment, 490. tax titles. 490. forfeiture, 490. ministerial sales, 491. Judicial sale, 492, redemption, 492 tax deed, 492. estate taken by purchaser, 493. eminent domain, 494. compensation for land taken under right of, 493. K KNIGHT'S SERVICE, tenure by, 27. L LACHES, defeating dower, 111. LAKES, as boundaries, 423. LAND, is real property, 3. LANDLORD. defined, 128. LANDLORD AND TENANT, rights and liabilities, 134. under express covenants, 134. , covenants running with the land, 136. personal covenants, 136. under implied covenants, 138. covenants by the lessor, 138. covenants by the lessee, 139. rent, 140. INDEX. 623 [The figures refer to pages.] LANDLORD AND TENANT— Continued, independent of covenant, 141. landlord's right to protect reversion, 141. tenant's right to exclusive possession. 142. ^ tenant estopped to deny landlord's title, 143. tenant's right to estovers, 143. tenant's right to emblements, 143. tenant's liability for waste, 143. distress for rent, 145. disseisin of tenant is disseisin of landlord, 468. LANDS. tenements and hereditaments, 3. LAND SYSTEM, public. 402. LAPSED DEVISES, 479. I^PSE OF TIME. termination of estates for years by. 150. LATENT AMBIGUITIES. in description of property, 420. LATERAL AND SUBJACENT SUPPORT, 365. LAWFUL SEISIN, covenant of, 443. LEASE, defined, 128. a common-law conveyance, 407. when writing necessity for, 407. under registered titles, 413. Is a deed, 415. not breach of covenant of seisin, 444. as breach of covenant against incumbrances, 446. LEASEHOLD. see "Estates for Years." LEGAL CAPACITY. to hold and convey realty, 381. infants, 382. persons of unsound mind, 383. drunkards, 385. married women, 385. conveyance from husband, 388^ separate examination, 386. wills of, 387. 624 INDBX. [The figures refer to pages.] LEGAL CAPACITY— Continued, aliens, 387. inheritance by, 388. office found, 388. Inheritance by naturalized citizens, 388. corporations, 389. LEGAL ESTATES, 251. LEGAL LIFE ESTATES, 69. homestead has incidents of, 115. LESSEE. defined. 128. Implied covenants by, 139. transfer of estate by, 148, LESSOR, defined, 128. implied covenants by, 138. transfer of estate by, 147. LETTING LAND ON SHARES, 154. LETTING OF LODGINGS, the relation established, 1(52. r.EX LOCI, governs title by devise, 474. LIABILITY FOR TORT. homestead not exempt from, 124- LICENSES. defined. 165. creation, 165. incidents of, 166. not assignable, 166. revocation, 167. distinguished from easements, 350. destruction of easements by, 357. conveyances under, 486. LIEN, vendor's, an equitable mortgage, 192. vendee's, an equitable mortgage, IM. LIEN THEORY, of mortgage, 183. INDEX. 626 [The figures refer to pages.] LIFE ESTATES, defined, 55. creation of, 55. kinds of, 55. per autre vie. 55. conventional, 56. creation, words of limitation, 57. legal, 69. incidents, 58. alienation, 59. Interests on Incumbrances, 60. apportionment of rent, 60. emblements, 61. estovers. 61. Improvements, 61. repairs, 61, waste, 62. merger. 66. estate by curtesy has incidents of, 79. homestead in, 116. restraints on alienation of, 395. IJGHT AND AIR, easement of, 363. LIMITATION. estates on, see "Estates on Limitation." of trustee's estate, 261. In creation of fee simple. 36. technical words of, not required in creation of powers, 309. title by, 457. words of in wills, 473. LINEAL RELATIONS, defined. 483. LIS PENDENS, is constructive notice, 218. LIVERY OP SEISIN, 406. LOCATION. of rights of way, 360. LODGINGS. see "Letting of Lodgings.** REAL PROP. —40 626 INDEX. [The figures refer to pages.] LOGGING, rigbts of boom companies. 370. LOST CORNERS, how located, 424. LUNATICS. leases by, 131. M MALES. preference of, In descent, 482. In collateral lines. 485. MANURE, when realty, 17. MAPS. in descriptions in deeds, 42L MARRIAGE. an incident of feudal tenure, 29. a requisite of curtesy, 74. a requisite of dower, 84. Is a valuable consideration. 393. MARRIED WOMEN, leases by, 131. capacity to hold and convey real property, 885. conveyance from husband, 386. separate examination, 386. wills of. 387. acknowledgment by, 437. estoppel of, by conveyance, 455. disseisin of. 468. MARRIED WOMEN'S ACTS, 73. MARSHALING, of mortgage securities, 204. MERGER. estate tail not subject to, 50. an incident of life estates, 66. termination of estates for years by, 152. discharge of mortgage by, 231. of particular estate may destroy contingent remainder, 293. destruction of easements by, 357. destruction of profits a prendre by, 375. application of, to rents, 378. INDEX. 627 [The figures refer to pages.] METALS. when real property, 7. MILITARY TENURES, abolished, 29. MILLS. water rights, 370. MINERALS, when real property, 7. MINES. when opening is waste, 64. MINISTERIAL SALES. tax titles by, 491. MISUSER, of easement, destruction by, 857. MONOMANIA, as affecting capacity to convey realty, 384, MONTH TO MONTH, tenancies for, see "Tenancies from Year to Year." MONUMENTS. description by, in deeds, 422. MORTGAGEE, rights and liabilities, see "Mortgages." purchase by, at foreclosure, 249. MORTGAGES, registration of, see "Registration." dower in, 89. is an estate on condition, 169. defined, 180. the usual condition of defeasance, 181. parties to, 182. theories of, 182. nature, 183. what may be mortgaged, 184. form of, 186. deed absolute, 187. parol defeasance, 187. sale with agreement to reconvey, 189. deed of trust, 190. equitable mortgage, 190. agreement to mortgage, 191. Informal mortgage may be efiCective In equity, 191. €28 INDEX. [The Q&ures refer to pages.] MORTGAGES— Continued, vendor's lien, 192. vendee's Hen, 194. deposit of title deeds. 192. rights and liabilities of mortgagor and mortgagee, 194. nature of mortgagor's estate, 195. possession of mortgaged premises, 196. insurance on mortgaged premises, 197. accounting by mortgagee, 199. debits, 200. credits, 201. annual rests, 202. marshaling, 204. subrogation, 203. relief of the real by the personal estate, 204. fissignment of equity of redemption, 205. no mortgage without an equity of redemption. 205. assignment of, 209. by operation of law, 211. priority, 212. actual notice, 213. Implied notice, 215. constructive notice, 215. possession, 216. recitals In title deeds, 210. lis pendens. 218. registration, 218. discharge of, 227. performance, 227. payment, 227. tender, 230. merger, 231. redemption, 233. who may redeem, 234 amount payable, 235. contribution to redeem, 236. redemption, when barred, 237. form of, 238. foreclosure, 239. when right accrues, 239. when right is barred, 240. personal remedies, 241. decree for deficiency, 241. INDEX. 629 [The figures refer to pages.] MORTGA G E S— Continued, receivers, 24L kinds of, 242. by entry and possession, 248. by writ of entry, 244. In equity, 244. parties plaintiff, 244. parties defendant, 245. strict foreclosure. 248. decree of sale, 248. power of sale, 248. purchase by mortgagee, 249. when subject to rule against perpetuities, 828. joint. 336. under registered titles, 413. are deeds, 415. as breach of covenant against Incumbrances, 444. not breach of covenant of seisin, 444. not revocation of devise, 476. MORTGAGOR, rights and liabilities, see "Mortgages." lease by, 132. disseisin of mortgagee by, 195. MORTMAIN, statutes of, 389. MOVABLES AND IMMOVABLES, 8. N NAKED POWERS. 311. public officer selling for taxes has, 491. NAME. assumed, grantee may be designated by. 4l«i, NATURAL EASEMENTS, 354. NATURALIZED CITIZENS. inheritance by, 388. NAVIGABLE RIVERS, ownership of bed, 5. as boundaries, 422. NECESSITY, ways of. 359. NEGATIVE EASEMENTS, 354. 630 INDEX. [The flgui-es refer to pages.] NONEXCLUSIVE POWERS, 812. NOTICE, acquisition of homestead by, 119. to terminate tenancy at will, 157. to terminate tenancy from year to year, 161. to terminate tenancy at sufferance, 1G5. priority of conveyances depends upon, 212. actual, 213. Implied, 215. constructive, 218. possession, 210. recitals in title deeds, 216. lis pendens, 218. registration, 218. of what facts registration Is, 222. to whom registration is, 222. NOTORIOUS POSSESSION, necessary In acquiring title by adverse possession, 462, NUISANCE. owner in fee simple must not maintain, 39. NUMBER OF OWNERS, estates as to, 332. o OBSTRUCTION. of easements, 356. OCCUPANCY. acquisition of homestead by, 118. title by, 457. OCCUPANTS, general and special of estates per autre vie, 68. OFFICE FOUND, divesting title of aliens, 388. OFFICER. De facto, acknowledgment before, 488. OFFICES. are Incorporeal hereditaments, 349. OPTION TO PURCHASE, may be mortgaged, 185. OUSTER. necessary in acquisition of title by adverse possession, 459. INDEX. 631 [The figures refer to pages.] OWNERS. number of estates as to, 332. OWNERSHIP, no absolute ownership of land under feudal system, 27. P PAIS, estoppel In, 451. PAROL. easements cannot be created by, 351. PAROL DEFEASANCE, mortgage may have, 187. PARTICULAR ESTATE, preceding a remainder, 284. destruction of, may destroy contingent remainder, 293. expiration of, may destroy contingent remainder, 293. forfeiture of, may destroy contingent remainder, 293. merger of, may destroy contingent remainder, 293. PARTIES. to a mortgage, 182. in creation of express trusts, 263. names of, in deeds, 416. PARTITION, of joint estates, 344. questions of title cannot be settled in, 345. compulsory, warranty of title, 346. failure of title in, 346. Improvements, 346. horizontal, easements created by, 365. a common-law conveyance, 408. right of eldest male to elect, 483. conveyance of title by, 488. PARTITION FENCES, 368. PARTNERSHIP, realty, homestead In, 118. dower In, 93. estates In, 339. partition, 344. PASSIVE TRUSTS, incidents of, 271. 632 INDEX. [The figures refer to pages.] PASTURE. common of, 378. PATENT AND CERTIFICATE, 402. PAYMENT, discharge of mortgage by, 227. PENSIONS, Incorporeal hereditaments, 349. PER AUTRE VIE, defined, 55. PER CAPITA, taking, in title by descent, 483. PERFORMANCE, discharge of mortgage by, 227. PER MY ET PER TOUT, 333. PERPETUITIES. • rule against, 322. not one of construction, 324. limits alienation of fee simple, 40. distinguished from restraints on alienation, 322. to what estates the rule applies, 323. gifts to charities, 329. effect of limitations too remote, 325. application to charitable trusts, 276. application to powers, 328. in United States, 330. PERSONAL CAPACITY. to hold and convey realty, see "Legal Capacity.** and restraints on alienation, 392. PERSONAL COVENANTS, in leases, 136. In deeds, 441. PERSONAL ESTATE. bound to relieve mortgaged realty, 204. PERSONAL INTERESTS IN LAND, 24. PERSONAL REMEDIES, In foreclosure, 241. PERSONAL REPRESENTATIVES, conveyances of land by, 487. PERSONS OP UNSOUND MIND, power to hold and convey realty, 383. INDEX. 63? [The figures refer to pages.] PER STIRPES. taking, in title by descent, 483. PETTY SERJEANTY, defined, 28. PISCARY, common of, 373. PLATS AND MAPS. in descriptions in deeds, 421. PLOUGH BOTE, defined. 61. POSSESSION, see "Adverse Possession." lessee's exclusive right to, 142. of mortgaged premises, 196. is constructive notice, 216. by trustee not adverse, 274. unity of, in joint tenancies, 333. unity of, in tenancy in common, 335. constructive, 460. of joint estates, 340. POSSIBILITY. may be devised, 474. of reverter, 281. on a possibility, 327. of issue extinct, tenant In tail after, 52. POSTHUMOUS CHILDREN, descent to, 480. POWER OF ATTORNEY, to execute a deed, 431. POWER OF SALE, foreclosure by, 248. POWERS. defined, 306. donor defined, 307. donee defined, 307. appointee defined, 307. distinguished from estates, 308. common-law powers, 308. creation, 309. revocation and appointment, 309. (J34 INDEX. [The figures refer to pages.] POWERS— Continued, classes of, as to donee, 310. appendant and in gross, 310. collateral or naked powers, 311, classes of, as to appointees, 311. general powers, 312. special. 312. exclusive, 312. Donexclusive, 312. execution, 314. who may execute, 314. form of, 315. time of. 317. compelling, 318. defective. 318. excessive, 318. rights of creditors, 320. beneficial powers. 320. destruction, 321. application of rule against perpetuities to, 328. naked, public officer, selling for taxes has, 49L TRECATORY WORDS. in creation of express trusts, 26L TRECEDENT. see "Conditions Precedent and Subsequent PRE-EMPTION. of public lands, 404. laws repealed. 404. PREFERENCE OF MALES, In title by descent, 482. in collateral lines, 485. PRESCRIPTION, creation of easements by, 352. light and air. 363. PRESENT ESTATES, and future. 279. PRIMARY AND SECONDARY. conveyances, 405. PRIMOGENITURE, 4S3. PRIORITY. of mortgages and other conveyances, 212. INDEX. 635 [The figures refer to pages.] PRIVATE PERSONS, acQuisition of title by, see "Title.'» PROCREATION, words of, In creating estates tall, 47, PROFITS A PRENDRE, 373. commons, 373. creation, 374. destruction, 375. alienation, 375. merger. 375. PROPERTY. real and personal, L. PROTECTION, of reversion by landlord, 141. PUBLIC DEBTS. homestead not exempt from, 124. PUBLIC DOMAIN, sale of, 402. PUBLIC LANDS, entry on, 402. pre-emption, 404. PUBLIC LAND SYSTEM, 402. PUBLIC TRUSTS, see "Charitable Trusts." PURCHASE, title by, 399. PURCEIASE MONEY MORTGAGE, priority of, 225. Q QUALITY OF ESTATES, 169. QUANTITY, description by, 425. QUANTITY OF ESTATES, 84. QUARANTINE, 94. QUARRIES, when opening Is waste, 64, QUASI ENTAIL, defined, 53. 636 INDEX. [The figures refer to pages.] QUIA EMPTORES. statute of. 30. application to rent service In fee, 876. QUIET ENJOYMENT, covenant of, 448. QUITCLAIM DEEDS. 412, technical words of limitation not necessary in, 87. covenant of special warranty in, 448. estoppel by, 454. whether color of title, 461. B RAILROAD OARS, whether real fixtures, 14, 16. READING. of deeds, when requisite, 429. REAL AND PERSONAL PROPERTY, L. importance of distinction, 2. REAL COVENANTS, in deeds, 441. UEAL FIXTURES, defined. 10. REAL PROPERTY. equitable conversion, 23. corporate shares not, 24. long terms of years are, in some states, 2A. RECEIVERS. In foreclosure. 241. RECITALS IN TITLE DEEDS, constructive notice, 216. estoppel by, 454. RECOVERY. conveyance by married woman by, 386. REDDENDUM, same as reservation, 418. REDEMPTION. see "Equity of Redemption." discharge of mortgage by, 233. INDEX. 637 [The figures refer to pages.] REDEMPTION— Continued, of mortgage, who may redeem, 234. amount payable, 235. contribution, 23G. when barred, 237, from tax sale, 492. RE-ENTRY, for forfeiture, 150. REGISTERED TITLES. 412. certificates of title, 418. transfers. 413. adverse possession abolished, 414. indemnity fund, 414. REGISTRATION. constructive notice by, 218. what instruments recorded, 219. manner of recording, 220. of what facts record is notice, 222. to whom, record is notice, 222. of deeds. 439. RELATIONS, who are lineal, 483. RELATIONSHIP. by consanguinity and aflSnlty, 483. RELEASE. of dower by wife, 106. destruction of easements by, 357. a common-law conveyance, 408. RELIEF. an incident of feudal tenure, 29. REMAINDER-MAN. adverse possession against, 464. REMAINDERS, defined, 281. how created, 282. when they must take effect, 283. freehold in future, 284. the particular estate, 284. distinguished from shifting uses and devises, 285. cross. 286. successive, 286. 638 INDEX. [The figures refer to pages.] REMAINDERS— Continued, alternate, 287. vested. 288. destruction of, 289. not subject to rule against perpetuities, 320. contingent. 289, distinguished from vested, 290. estates which will support, 29L. New York Code definition, 291. test of, 291. contingency on which remainder may depend, 292. destruction of. 293. by destruction of particular estate, 293. by expiration of particular estate, 293. by forfeiture of particular estate, 293. by merger of particular estate, 293. trustees to preserve, 293. liability to destruction removed by statute, 293. whether subject to rule against perpetuities. 826. tenure, 304. alienation, 305. descent of, 306. REMEDIES, for waste, 66. . REMOTENESS, rule against, 322. RENT. apportionment of, 60, 377. in estates per autre vie, 68. to dowress, 102. dower In, 87. implied covenant to pay, 140. distress for, 145. tenant at sufferance not liable for, 164. may be mortgaged, 185. charge and seek, 375. service, 375. distress. 376. effect of quia emptores, 376. estates in, 870. as an incorporeal hereditament, 875. creation, 377. INDEX. 639 [The figures refer to pages.] RENT— Continued, application of merger. 378. extinguished by eviction, 378. RENUNCIATION. of title by devise, 475. REPAIRS, of rights of way, 361. by life tenant, 61. when failing to make is waste, 65. by dowress, 101. duty of tenant from year to year to make, 160. of easements, 356. by joint tenants, 342. REQUISITES OF DEEDS, see "Deeds." RESERVATION, in deeds, 418. same as reddendum, 418. RESTRAINTS ON ALIENATION, 390. history of right of alienation, 390. kinds of, 390. imposed by law, 390. by form of estate, 392. in favor of creditors, 392. personal capacity, 392. bankrupt and insolvent laws, 394. Imposed in creation of estate, 394. separate estates of married women, 398. spendthrift trusts. 396. RESULTING TRUSTS, Bee "Trusts." RESULTING USES, 266. REVERSAL OF JUDGMENT, effect of on title by sale on execution, 490. REVERSION. landlord's right to protect, 141. defined, 280. tenure, 303. alienation of. 305. descent of, 306. not subject to rule against perpetuities, 323- 640 INDEX. [The figures refer to pages.] REVERTER. possibility of. 281. REVOCATION, of license, 167. powers of, 309. RIGHTS OF COMMON, see "Commons." RIGHT OF ENTRY, to defeat estate on condition, 176. whether subject to rule against perpetuities, 327. by disseisee, 458. RIGHT OF USER, of fee wimple, 39. RIGHT OF WAY, 359. by necessity, 360. use of, 360. location, 360. not a breach of covenant of seisin, 444. RIPARIAN OWNER, easements of, 369. RIVERS. as boundaries, 422. ROYAL MINES. none in United States, 7. RULE AGAINST ACCUMULATIONS, see "Accumulations." RULE AGAINST PERPETUITIES, see "Perpetuities." RULE IN SHELLEY'S CASE, 295. RURAL, homestead. 117. s SALE, power of, see "Power of Sale." with agreement to reconvey may be a mortgage, 189. judicial, tax title by, 492. on execution, see "Execution." title by, 489. effect of reversal of judgment, 490. INDEX. S^i [The figures refer to pages.] SCUTAGE. origin, 29. SEAL, defined, 429. when necessary for deed, 429. SECONDARY CONVEYANCES, 405. SEISIN, defined, 31. in fact, 31, 406. In law. 31, 406. transitory as giving dower, 84. of future estates, 303. title by adverse possession, 458. of wife requisite of curtesy, 75. SELECTION OP HOMESTEAD, 120. SEPARATE ESTATE. of wife. 72. restraints on alienation of, 396. SEPARATE EXAMINATION, of married woman, 386. SEPARATE USE. statute of uses does not operate on estates for, 254. SERIES. limitations to and rule against perpetuities, 328. SERJEANTY. defined, 28. SERVIENT ESTATE. 350. SETTLED ESTATES, conveyances of, 488. SEVERANCE. may make real fixtures personalty, 14. SHELLEY'S CASE, rule in, 295. SHIFTING DEVISE, distinguished from remainder, 285. SHIFTING USES. 300. distinguished from remainder, 285. alienation, 305. KEAL PROF. — 41 642 INDEX. [The figures refer to pages.] SIGNING. requisite of deeds, 430. SOCAGE. tenure In, 28. SPECIAL OCCUPANTS. of estates per autre vie, 68. SPECIAL POWERS, 312. exclusive and nonexclusive, 312. SPECIAL WARRANTY, covenant of, 446. SPECIFIC EASEMENTS. 359. SPECIFIC PERFORMANCE, conveyance of title by, 488. SPENDTHRIFT TRUSTS, 396. may prevent involuntary alienation, 41, SPRINGING USES. 299. alienation, 305. STATE. acquisition of title by, 399. discovery, conquest, and treaty, 399. confiscation and escheat, 399. transfer from individuals, 399. power of eminent domain, 399. grant from, to private persons, 401. STATUTE. de donis conditionalibus, 44, 46. of Gloucester, 06. of frauds, creation of estates for years, 132. in creation of express trusts, 262. of limitations, barring dower. 111. title by, 457. of mortmain, 389. of quia emptores, 30. of uses. 253. when the statute does not operate, 254. in the United States, 2-54. future estates under, 298. conveyance under, 409. of wills, future estates under, 300. INDEX, 643 [The figures refer to r&K^s.] STATUTORY CONVEYANCE. 41L STRICT FORECLOSURE. 248. SUBINFEUDATION. prohibited by quia emptores, 30. SUBJACENT SUPPORT, 365. SUBLEASE, defined. 148. liability of subtenant, 149. SUBROGATION, of insurer to rights of mortgagee, 199, 203. SUBSEQUENT, see "Condition Precedent and Subsequent.** SUBTENANTS, under feudal system, 26. SUBTENURE. what is. 27. SUBTERRANEAN WATERS, easements in, 371. SUCCESSIVE REMAINDERS. 286. SUFFERANCE. see "Tenancy at Sufferance.** SUPPORT. lateral and subjacent, 365. SURFACE WATERS, easements in, 371. SURRENDER, termination of estates for years by, 152. a common-law conveyance, 408. SURVEY, the congressional, 402. SURVIVORSHIP. doctrine of, in joint tenancies, 337. in estates in entirety. 338. T TACKING. of adverse possession. 466. TALTARUM'S CASE, recognized common recoveries, 51. 644 INDEX. [The figures refer to pages.] TAX DEED, 492. TAXES. fee simple liable for, 41. payment by dowress, 102. as breach of covenants against Incumbrances, 445. TAX TITLES. 490. by forfeiture, 490. ministerial sales, 491. Judicial sale, 492. redemption, 490, 492. tax deed. 492. estate taken by purchaser, 493 . TENANCIES. at will defined, 155. incidents, 156. termination, 157. from year to year, 158. incidents, 160. termination, 161. at sufferance, 163. creation, 163. incidents, 164. termination, 165. in common defined, 835. unities necessai*y. 335. joint mortgages, 336. partition of, 344. creation, 158. TENANT. see "Landlord and Tenant" under feudal system, 26. defined, 128. by curtesy, lease by, 132 in dower, lease by, 132. in common, lease by, 132. TENDER. discharge of mortgage by, 230. TENEMENTS, 3. TENURE. defined, 26. kinds of. 27. INDEX. 645 [The figures raier to pagea] TENURE— Continued, by knight's service, 27. by serjeanty, 28. by grand serjeanty, 28. by petty serjeanty, 28. in frankalmoigne, 28. in socage, 28. villein, 28. incidents, 29. aids, 29. marriage, 29. relief. 29. wardship, 29. escheat and forfeiture, 30. services commuted for money payments, 29. military abolished, 29. , statute of quia emptores, 30. in United States, 31. unknown forms cannot be created. 40. of future estates, 303. in capite, 27. in chief, 27. TIME, unity of, in joint tenancies, 333. of enjoyment, estates as to, 279. of execution of power, 317. TITHES, 349. TITLE. denned. 399. unity of, in joint tenancies, 333. acquisition of, by state, 399. by confiscation and escheat, 399. by discovery, conquest, and treaty, 399. by transfer from individual, 399. under power of eminent domain, 399. descent and purchase, 399. acquisition by private persons, 401. by grant from state, 401. public land system, 402. certificate and patents, 402. pre-emption, 404. pre-emption laws repealed, 404. G46 INDEX. [The figures refer to pag^^s.] TITLE— Continued, conveyauce, 405. common-law conveyances, 405. registered, 412. certificates of. 413. transfers, 413. adverse possession abolished, 414. Indemnity fund, 414. requisites of deeds, 414. property to be conveyed, 415. granting clause, 417. names of parties, 416. words of conveyance, 416. exceptions, 417. reservations, 418. habendum, 418. description of the property, 419. plats and maps, 421. monuments, 422. courses and distances, 424. quantity, 425. appurtenances, 425. execution of the writing, 426. consideration, 427. what writing necessary, 427, date, 428. alterations, 428. filling blanks, 428. reading, 429. sealing, 429. signing, 430. power of attorney, 431. indentures and deeds poll, 432. delivery and acceptance, 433. delivery in escrow, 435. acknowledgment, 436. witnesses, 430. registry, 439. covenants for, 440. express and implied, 440. real and personal, 440. Independent and dependent, 441. of seisin, 442. INDEX. 647 [The figures refer to pages.] TITLE— Continued, when broken, 442. how broken, 442. against incumbrances, 444. how broken, 444. of warranty, 44G. how broken, 446. action for breach, 449. special warranty, 446. for further assurance, 449. by estoppel, 450. division lines, 453. by adverse possession, 456. requisites of, 456. seisin and disseisin, 458. effect of descent cast, 459. must be actual, 459. ouster necessary, 459. constructive possession, 460. color of title. 460. Intention to disseise necessary, 460. must be visible or notorious, 462. must be hostile and adverse, 463. when possession up to division fence is adverse, 463. must be exclusive, 465. must be continuous, 466. tacking, 466. joint disseisors, 466. against whom possession Is adverse, 468. disabilities of persons, 468. abandonment, 469. length of possession necessary, 469. by occupancy, 457. by accretion, 470. alluvion, 470. by devise, 472. description of property, 473. operative words. 473. what can be devised, 474. what law governs, 474. nature of. 475. renunciation of, 475. 648 INDEX. [The figures refer to pages.] TITLE— Continued, revocation by alteration of estate, 476. lapsed devises, 477. by descent, 478. what descends, 479. posthumous children, 480. illegitimate children, 4S0. advancements, 481. hotchpot, 482. canons of descent, 482. descending and ascending lines, 482. preference of males. 482. in collateral lines, 485. collateral heirs and ancestral lands, 483. primogeniture, 483. whole and half blood, 485. escheat, 485. by Judicial process, 486. conveyances under licenses, 486 by guardians, 487. by personal representatives, 487. of settled estates, 488. under decrees, 488. partition, 488. specific performance, 488. sales on execution, 489. effect of reversal of judgment, 490. ■ tax titles. 490. forfeiture, 490. ministerial sale, 49L judicial sale, 492. tax deed. 492. redemption, 490, 492. estate taken by purchaser, 493. eminent domain, 494. compensation for land taken under right of, 495. procured by fraud raises constructive trust, 270. TITLE DEEDS, mortgage by deposit of, 192. recitals in, constructive notice, 210, TORRENS* TITLE SYSTEM, 412. TRADE FIXTURES, 16. INDBX. 649 [The figures refer to pages.] TRANSFER, of estates for years, 147. by operation of law, 149. of joint estates, 343. of registered titles, 413, TRANSITORY SEISIN, as giving dower, 84. TREATY. acquisition of title by, 399. TREES, when real property, 8. when fixtures, 21. when cutting is waste, 64. TRUSTEE, defined, 260. leases by, 131. limitation of estate of, 261. rights and liabilities of, 271. interest of, 272. possession by, not adverse, 274. to preserve contingent remainders, 293. disseisin of, is disseisin of cestui que trust, 468. TRUST. deed of, may be a mortgage, 190. defined, 252. classification of, 257. executed and executory, 258. express. 258. creation of, 260. precatory words, 261. statute of frauds, 262. parties, 263. Implied. 264. resulting, 265. legal title only conveyed, 266. consideration paid by another, 267. failure of object of trust, 267. deed to wife or child, 268. constructive, 269. fraud an essential element of, 269. raised by titles procured by fraud, 270. creditors do not have, 271. 650 INDEX. [The figures refer to pages.] TRUST-Contlnued, charitable, defined, 274. objects of. 275. creation, 275. distinguished from private, 274. beneficiary indefinite, 276. doctrine of cy-pres, 276. perpetuities and accumulations, 276. when subject to rule against perpetuities, 328. spendthrift, 396. by operation of law, statute of uses does not operate on, 254. TURBARY, common of, 373. TURNPIKE ROADS. franchises for, 380. TYRRELL'S CASE, 256. u UNITY. of interest In joint tenancy, 333. of possession in joint tenancies, 333. in tenancy in common, 335. of time in joint tenancies, 333. of title in joint tenancies, 333. UNRECORDED CONVEYANCES, see "Registration." UNSOUND MIND. persons of, power to hold and convey realty, 383. URBAN HOMESTEAD, 117. USE, sec "Trust." defined, 252. origin, 252. upon a use, statute of uses does not operate on, 254. V VENDEE'S LIEN, an equitable mortgage. 194. VENDOR'S LIEN, an equitable mortgage, 192. VESTED INTERESTS, rule against perpetuities does not apply to, 326. INDEX. ^^^ [The figures refer to pages.) VESTED REMAINDERS, see "Remainders." VILLEINAGE, 28. VILLEIN TENURE, 28. VISIBLE POSSESSION, necessary in acquiring title by adverse possession, 463. VOID CONDITIONS. 172. VOLUNTARY PARTITION, 344. VOLUNTARY WASTE, 62. VOUCHING TO WARRANTY, in common recovery, 50. w WAIVER. of homestead, 122. of forfeiture of estate on conditions, 175. WALLS, see "Party Walls." WARDSHIP. an incident of tenure, 29. WARRANTY. doctrine of, in common recovery, 51. assignment of mortgage does not create, 211. covenant of, 446. estoppel by, 454. WARRANTY DEEDS. 422. WASTE. equitable, 62. voluntary. 62. tenant without impeachment for, 62. husbandry, 63. cutting trees, 64. mines and quarries, 64. buildings and fences, 65. by strangers, liability of tenant for, 65. as incident of estate during coverture, 71. defeating dower. 111. lessee liable for, 143. tenant in tail not liable for, 49. life tenant liable for, 62. 652 INDEX [The figures refer to pages.] WASTE3— Continued, an incident of tenancies at will, 158. by mortgagor, 195. protection of future estates, 304. by joint tenants, 342. remedies for. 66. double and treble damages for, 68. WATER, when rights in are real property, 4. easements in, 368. subterranean, 371. surface, 371. WATER COURSE. what is, 369. artificial, 372. WAY. rights of, see "Rights of Way." WEAKNESS OF MIND, as affecting capacity to hold and convey realty, 383> WHOLE BLOOD. descent to, 485. WILLS. see "Statute of Wills." of married women, 387. transfer of title by, 473. WITNESSES, to deeds, 439. WOMEN. see "Married Women.** WORDS OF LIMITATION, see "Limitation." WRITING. what requisite in deeds, 428. WRIT OF ENTRY, foreclosure by, 244. Y YEAR TO YEAR, see "Tenancy from Year to Year.** WBBT PUBLISaiNO CO., PBIMTEBB AND BTEBBOTVPKB«. BT. PADL, MOTX. 2^t?e f)onibook Scries Comprises elementary treatises on all the principal sub- jects of the law. The books are made on the same gen- eral plan, in which certain special and original feature s are made prominent. Cl^e "Jjornbook plan" Is to set forth the leading principles in black-letter (like this) And to give the necessary amplification, explanation, ap- plication, etc., under the principles, in type like this. The authorities are grouped in footnotes at the bottom of the page.* This shows why these books are found so serviceable as practitioners' handbooks. A lawyer may want to be re- minded of the law ; in that case he wants it presented in such a way that he can pick out what he needs with the least trouble. *The Hornbook Series now includes treatises on Aconey. Admi- ralty, Bailments, Bills and Notes, Common-Law IMcadiiiir. Constitu- tional Law, Contracts, Corporations, Criminal Law, Criminal Pro- <'edure. Damages, Elementary Law, Equity Jurisprudence. Equity Pleading, EA'idence. Executors and Administrators, Federal .Juris- diction and Procedure, Insurance, International Law, Interpreta- tion of Laws, Mining Law. Negligence, Partnership. Persons and Domestic Relations. Public Corporations, Real Property, Sales, Torts (2 vols.) and Wills. Uniform price, $3.75 a volume, delivered. Bound in American Law Buckram. West Publishing Co. St Paul, Minn. 100 William St. 225 Dearborn St. New York. Chicago. CG55t)a ^avvovos on Hecjiigcnce. 1899. G34 pages. $3.75 delivered. By MORTON BARROWS, A. B., LL. B. TABLE OF CONTENTS. Chap. 1. Definition and Essential Elements. 2. Contributory Negligence. 3. Liability of Master to Servant. 4. Liability of Master to Third Persons. 5. Common Carriers of Passengers. 6. Carriers of Goods. 7. Occupation and Use of Land and Water. 8. Dangerous Instrumentalities. 9. Negligence of Attorneys, Physicians, and Public Officers. 10. Death by Wrongful Act. 11, Negligence of Municipal Corporations. C05o9-1 Black on Construction anb 3nterprctation of £atps. 1S96. 509 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, and Treatises on Constitution- al Law, Judgments, etc. TABLE OF CONTENTS. Chap. 1. Nature and Office of Interpretation. 2. Construction of Constitutions. 3. General Principles of Statutory Construction. 4. Statutory Construction ; Presumptions. 5. Statutory Construction ; Words and Phrases. 6. Intrinsic Aids in Statutory Construction. 7. Extrinsic Aids in Statutory Construction. 8. Interpretation with Reference to Common Law. 9. Retrosiiective Interpretation. 10. Construction of Provisos, Exceptions, and Saving Clauses. , 11. Strict and Liberal Construction. , 12. Mandatory and Directory Provisions. 13. Amendatory and Amended Acts. 14. Construction of Codes and Revised Statutes. 15. Declaratory Statutes, 16. The Rule of Stare Decisis as Applied to Statutory Construc- tion. 17. Interpretation of Judicial Decisions and the Doctrine of Prec- edents. CB555>-2 Slack's Constttutional taw, 1910. SGS pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary. Treatises on Judgments, Tax Titles, Bankruptcy, etc. Third Edition. TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. The United States and the States. 3. Establishment and Amendment of Constitutions. 4. Construction and Interpretation of Constitutions. 5. The Three Departments of Government. 6. The Federal Executive. 7. Federal Jurisdiction. 8. The Powers of Congress. 9. Interstate Law as Determined by the Constitution. 10. The Establishment of Republican Government. 11. Executive Power in the States. 12. Judicial Powers in the States. 13. Legislative Power in the States. 14. The Police Power. 15. The Power of Taxation. 10. The Right of Eminent Domain. IT. Municipal Corporations. IS. Civil Rights, and Their Protection by the Constitution. 19. Political and Public Rights. 20. Constitutional Guaranties in Criminal Cases. 21. Laws Impairing the Obligation of Contracts. 22. Retroactive Laws. C6559a-3 Cl^ilbs on 5urcti)sl?ip anb 1907. 572 pages. $3.75 delivered. By FRANK HALL CHILDS, of the Chicago Bar. TABLE OF CONTENTS. Chap. 1. Definitions, Parties, Distinctions, and Oassifications. 2. Formation of the Contract. 3. The Statute of Frauds. 4. Construction of the Contract. 5. Rights and Liabilities as Between the Creditor and the Sure- ty. 6. Rights and Liabilities of the Surety and of the Principal as to each other. 7. Rights and Liabilities of Co-Sureties as to each other. 8. Parties to Negotiable Instruments Occupying the Relation of Sureties. 9. Official Bonds. 10. Judicial Bonds. 11. Bail Bonds and Recognizances. CG559-i Clark on Contracts. 1904. 093 pages. $3.75 delivered. By WM. L. CLARK, Jr. Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Contract in General. 2. Offer and Acceptance. 3. Classification of Contracts. 4. Requirement of Writing. 5. Consideration. G. Capacity of Parties. 7. Reality of Consent. 8. Legality of Object. 9. Operation of Contract. 10. Interpretation of Contract. 11. Discharge of Contract. 12. Agency. 13. Quasi Contract. CG559— 5 Clark on Corporations. 1907. 721 pages. .'?3.75 delivered. By WM. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Of the Nature of a Corporation. 2. Creation and Citizenship of Corporations. 3. Effect of Irregular Incoriwration. 4. Relation between Corporation and its Tromoters. 5. Powers and Liabilities of Corporations. 6. Powers and Liabilities of Corporations. 7. Powers and Liabilities of Corporations. 8. The Corporation and the State. 9. Dissolution of Corporations. 10. Membership in Corporations. 11. Membership in Corporations. 12. Membership in Corporations. 13. Management of Corporations— Officers and Agents. 14. Rights and Remedies of Creditors. 15. Foreign Corporations. Appendix. C6.JO9-0 Clark's Criminal £atr>. 1902. 517 pages. §3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of tbe Law of Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Defiuitiou of Crime. 2. Criminal Law. 3. Classification of Crimes. 4. The Mental Element in Crime. 5. Persons Capable of Committing Crime. G. Parties Concerned. 7. The Overt Act. 8. Offenses against the Person. 9. Offenses against the Person. 10. Offenses against the Habitation. 11. Offenses against Property. 12. Offenses against the Public Health, Morals, etc. 13. Offenses against Public Justice and Authority. 14. Offenses against the Public Peace. 15. Offenses against the Government. 16. Offenses against the Law of Nations. 17. Jurisdiction. IS. Former Jeopardy. C655D-7 Clark's Criminal Proccburc. 1895. 665 pages. ?3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of Criminal Law," aud a "Handbook of Contracts." TABLE OF CONTENTS. Chap. 1. Jurisdiction. 2. Apprehension of Persons and Property. 3. Preliminary Examination, Bail, and Commitment. 4. Mode of Accusation. 5. Pleading— The Accusation. G. Pleading— The Accusation. 7. Pleading — The Accusation. 8. Pleading — The Accusation. 9. Pleading — The Accusation. 10. Pleading and Proof. 11. Motion to Quash. 12. Trial and Verdict. 13. Proceedings after Verdict. 14. Evidence. 15. Habeas Corpus. J CG559-8 Crostpcll on (Sxecutors anb Clbmtnistrators. 1S97. G96 pages. .$3.7." delivered. By SIMON GREENLEAF CROSWELL, Author of "Electricity," "Patent Cases," etc. TABLE OF CONTENTS. Chap. Part 1.— DEFINITIONS AND DIVISION OF SUBJECT. 1. Definitions and Division of subject. Part 2.— APPOINTMENT AND QUALIFICATIONS. 2. Appointment in Court. 3. Place and Time of Appointment and Requisites Therefor. 4. Who may Claim Appointment as Executor. 5. \Yho may Claim the Right to Administer. 6. Disqualifications for the Office of Executor or Administrator. 7. Acceptance or Renunciation. 8. Proceedings for Appointment of Executors and Administra- tors. 9. Sijecial Kinds of Administrations. 10. Foreign and Interstate Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. Part 3.— POWERS AND DUTIES. 13. Inventory — Appraisement — Notice of Appointment. 14. Assets of the Estate. 15. Management of the Estate. 16. Sales and Conveyances of Personal or Real Assets. 17. Payment of Debts and Allowances — Insolvent Estates. 18. Payment of Legacies. 19. Distribution of Intestate Estates. 20. Administration Accounts. Part 4.— TERMINATION OF OFFICE. 21. Revocation of Letters — Removal — Resignation. Part 5.— REMEDIES. 22. Actions by Executors and Administrators. 23. Actions against Executors and Administrators. 24. Statute of Limitations— Set-off. 25. Evidence and Costs. C6o59-9 Costiijan on IHinina 'iaw. 1908. 7Go pages. §3.75 delivered. By GEORGE P. COSTIGAN, Jr. Dean of the College of I^w of the University of Nebraska. TABLE OF CONTENTS. Chap. 1. The Origin and History of American Mining Law. 2. The Mining Law Status of the States, Territories, and Posses- sions of the United States. 3. The Laud Department and the Public Surveys. 4. The Relation Between Mineral Lands and the Public Land Grants. 5. The Relation Between Mineral Lands and Homestead, Timlier and Desert Entries. G. The Relation Between Mineral Lands and the Various Public Land Reservations. 7. The Relation Between Mineral Lands and Townsites. 8. Definitions of Practical Mining Terms. 0. Definitions of Mining Law Terms. 10. The Discovery of Lode and Placer Claims. 11. Who INIay and Who May not Locate Mining Claims. 12. The Location of Lode Claims. 13. The Location of Mill Sites. 14. The Location of Tunnel Sites and of Blind Lodes Cut by Tun- nels. 15. The Location of Placers and of Lodes within Placers. 16. The Annual Labor or Improvements Requirements. 17. The Abandonment, Forfeiture, and lielocation of Lode and Placer Mining Claims. 18. Uncontested Application to Patent Mining Claims. 19. Adverse Proceedings and Protests Against Patent Applications. 20. Patents. 21. Subsurface Rights. 22. Coal Land and Timber and Stone Land Entries and Patents. 23. Oil and Gas Leases. 24. Other Mining Contracts and Leases. 25. Mining Partnerships and Tenancies in Common. 26. Conveyances and Liens. 27. Mining Remedies. 28. Water Rights and Drainage. Appendices. C6559-9y3 (Saton on €quity. 1901. 734 pages. $3.75 delivered. By JAMES W. EATON, Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports. Eaton and Greene's Negotiable Instruments Law, etc. 1 1 TABLE OF CONTENTS. Origin and History. General Principles Governing the Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. Bona Fide Purchasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. Powers, Duties, and Liabilities of Trustees. Mortgages. Equitable Liens. Assignments. Remedies Seeking Pecuniary Relief. Specific Performance. Injunction. Partition, Dower, and Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. CG559-10 (Barbner on Wills. 1903. 726 pages. .$.3.75 tlelivered. By GEORGE E. GARDNER, Professor in the Boston University Law School. TABLE OF CONTENTS. Chap. 1. History of Wills — Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make Wills, and Wills Resulting from Agree- ment. 5. Who may be a Testator. G. Restraint upon Power of Testamentary Disposition — Who may be Beneficiaries — What may be Disposed of by Will. 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Actions for the Construction of Wills. 13. Construction of Wills — Controlling Principles. 14. Construction — Description of Subject-Matter. 15. Construction — Description of Beneficiary. 10. Construction — Nature and Duration of Interests. 17. Construction — Vested and Contingent Interests — Remainders — Executory Devises. IS. Construction — Conditions. 19. Construction — Testamentary Trusts and Powers. 20. Legacies — General — Specific — Demonstrative — Cumulative —Lapsed and Void — Abatement — Ademption — Advance- ments. 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator's Debts. 23. Election. 24. Rights of Beneficiaries Not Previously Di.scussed. CG559-12 (Beovq,e on Partncrst?tp. 1S97. GIO pages. $3.75 delivered. By WILLIAM GEORGE. TABLE OF CONTENTS. Chap. 1. Definition and EstablLshment of Relation. 2. Kinds of Partnersliips and Partners. 3. Cliaracteristic Features of Partnerships. 4. Implied Rights and Liabilities Inter Se. 5. Articles of Partnership. 6. Rights and Liabilities as to Third Persons. 7. Actions Between Partners. 8. Actions Between Partners and Third Persons. 9. Dissolution. 10. Limited Partnerships. 11. Joint-Stock Companies. C6559-13 ^alc on Bailments anb Carriers. 1896. 675 pages. $3.75 delivered. By WM. B. HALE. TABLE OF CONTENTS. Chap. 1. In General. 2. Bailments for Sole Benefit of Bailor. 3. Bailmeut.s for Bailee's Sole Benefit. 4. Bailments for Mutual Benefit — Pledges. 5. Bailments for Mutual Benefit — Hiring. 6. Innkeepers. 7. Carriei-s of Goods. 8. Carriers of Passengers. 9. Actions against Carriers. CU55y— 15 ^alc on Damages. 189G. 470 pages. $3.75 delivered. By WM. B. HALE, Author of "Bailmeuts and Carriers." TABLE OF CONTENTS. Chap. 1. Definitions and General Principles, 2. Nominal Damages, 3. Compensatory Damages. 4. Bonds, Liquidated Damages and Alternative Contracts. 5. Interest. 6. Value. 7. Exemplary Damages. 8. Pleading and Practice. 9. Breach of Contracts for Sale of Goods. 10. Damages in Actions against Carrier. 11. Damages in Actions against Telegraph Companies. 12. Damages for Death by Wrongful Act. 13. Wrongs Affecting Real Property. 14. Breach of Marriage Promise. CG.>:;9-ic f)ah on (Eorts. 1890. (J3G pages. .$3.75 delivered. By WM. B. HALE. Autbor of "Kailments and Carriers," etc. TABLE OF CONTENTS. Chap. 1. General Nature of Torts. 2. Variations in Normal Right to Sue. 3. Liabilicy for Torts Committed by or witli Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies for Torts — Damages. 6. Wrongs Affecting Freedom and Safety of Person. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. C6559-17 ^opUins on Keal Property. 189G. 589 pages. $3.7."i delivered. By EARL P. HOPKINS, A. B. LL. M. TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure and Seisin. 3. Estates as to (Inantity— Fee Simple 4. E.states as to Quantity— Estates Tail. 5. Estates as to Quantity — Conventional Life Estates. 0. Estates as to Quantity— Legal Life Estates. 7. Estates as to Quantity— Less than Freehold. 8. Estates as to Quality on Condition— on Limitation. 9. Estates as to Quality— Mortgages. 10. Equitable Estates. n. Estates as to Time of Enjoyment— Future Estates. 12. Estates as to Number of Owners — Joint Estates. 13. Incorporeal Hereditaments. 14. Legal Capacity to Hold and Convey Realty. 15. Restraints on Alienation. IG. Title. CG559-18 fyu}{}cs> on Clbiniralti). I'JOl. 504 pages. .$3.75 delivered. By ROBERT M. HUGHES, M. A. TABLE OF CONTENTS. The Origin and History of tlie Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Sulgect-Matter. General Average and Marine Insurance. Bottomry and Respondentia ; and Liens lor Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Towage Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected l)y the Ilarter Act of February V\ lSn.3. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circumstances, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of I'leadiug and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation. Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High Seas and Ct)ast Wa- ters. (4) The Lake Rules. (5) The Mississippi Valley Rules. (G) The Act of March ;>. 18!)!», as to Obstructing Channels. 3. The Limited Liability Acts. Including: (1) The Act of March 3, 1S.")1. as Amended. (2) The Act of June 2tj, 1SS4. 4. Section 941, Rev. St., as Amended, Regulating Bonding of Ves- sels, o. Statutes Regulating Evidence in the Federal Courts. (5. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. C6551>-19 ^ugl^cs on ^cbcval 3urisbiction anb Proccbure. 1904. G34 pages. $3.75 delivered. By ROBERT M. HUGHES, of the Norfolk Bar, Author of "Huglies on Admiralty." and Lecturer at the George Washington University Law School. TABLE OF CONTENTS. Chap. 1. Introduction — What it Comprehends. 2. The District Court — Its Criminal Jurisdiction and Practice. 3. Same — Continued. 4. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. 5. The District Court— Bankruptcy. 6-8. Same — Continued. 9. The District Court — Miscellaneous Jurisdiction. 10. The Circuit Court — Original Jurisdiction. 11-12. Same — Continued. 13. The Circuit Court — Jurisdiction by Removal. 14-15. Same — Continued. IG. The Circuit Court— Jurisdiction by Remova-1— Original Juris- diction of the Supreme Court — Other Minor Courts of Orig- inal Jurisdiction. 17. Procedure in the Ordinary Federal Courts of Original Juris- diction — Courts of Law. IS. Procedure in the Ordinary Federal Courts of Original Juris- diction — ^Courtij of Equity. 19. Same — Continued. 20. Appellate Jurisdiction— 'The Circuit Court of Appeals. 21. Appellate Jurisdiction — The Supreme Court. 22. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an appendix. C6559-20 3n9ersoU on Public Corporations. 1901. 73S pages. $3.75 delivered. By HENRY H. INGERSOLL, LL. D., Dean of the Uuiversity of Tennessee School of Law. TABLE OF CONTENTS. Part 1.— QUASI CORPORATIONS. Chap. 1. Nature, Creation, Classification. 2. Quasi Corporations — Liahilities, Elements, Counties, Property, etc. 3. Same — Continued. 4. Same — Continued. Part 2.— MUNICIPAL CORPORATIONS. 5. Municipal Corporations. G. Their Creation — How — By What Bodies — Subject to What Re- strictions, etc. 7. Their Alteration and Dissolution. 8. The Charter. 9. Legislative Control. 10. Proceedings and Ordinances. 11. Officers, Agents, and Employes. 12. Contracts. 13. Improvements. 14. Police Powers and Regulations. 15. Streets, Sewers, Parks, and Public Buildings. IG. Torts. 17. Debts. Funds, Expenses, and Administration. IS. Taxation. 19. Actions. Part 3.— QUASI PUBLIC CORPORATIONS. 20. Quasi Public Corporations. 21. Railroads. 22. Electric Companies. 23. Water and Gas Companies. 24. Other Quasi Public Corporations. CG559-21 3a$gai*b on Corts. 1895. 2 vols. 1307 pages. $7.50 delivered. By EDWIN A. JAGGARD, A. M., LL. B., Professor of the Law of Torts in Minnesota University Law School. TABLE OF CONTENTS. Part 1.— IN GENERAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2.— SPECIFIC WRONGS. 6. Wrongs Affecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 14. Common Carriers. CG559-22 HTcKclrcy on €t)ibcncc. 1907. 540 pages. .$:?.7o delivorod. By JOHN JAY McKELVEY, A. M., LL. B., Author of "Conimou-Law rioading," etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Introductory. 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. 7. Confessions. S. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 13. Examination of Witnesses. 14. Writings. 1.5. Demurrers to Evidence. 06559-23 rtorton on Bills anb Ticks. 1900. GOO pages. .$3.75 delivered. By PROF. CHARLES P. NORTON. Third Edition: By Francis B. Tiffany. TABLE OF CONTENTS. Chap. 1. Of Negotiability so far as it Relates to Bills and Notes. 2. Of Negotiable Bills and Notes, and their Formal and Essen- tial Requisites. 3. Acceptance of Bills of Exchange. 4. Indorsement. 5. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. DefeDses as against Purchaser for Value without Notice. 8. The Purchaser for Value without Notice. 9. Of Presentment and Notice of Dishonor. 10. Checks. Appendix. CG5d9-24 5t?tpman on Coinnion £air Plcabiuy. 1895. G15 pages. $3.75 ck-liverod. By BENJAMIN J. SHIPMAN, LL. B. Second Edition. TABLE OF CONTENTS. Chap. 1. Forms of Action. 2. Forms of Action. 3. Tlie Parties to Actions. 4. Tlie Proceedings in an Action. 5. The Declaration. G. The Production of the Issue. 7. Materialty in Pleading. 8. Singleness or Unity in Pleading. 9. Certainty in Pleading. 10. Consistency and Simplicity in Pleading. 11. Directness and Brevity in Pleading. 12. INIiscellaneous Rules. Appendix. CG559-25 5l7ipman on (f qutty PIcabing. 1897. G44 pages. $3.75 delivered. By BENJ. J. SHIPMAN, LL. B., Author of "Sliipman's Commou-Law Pleading." TABLE OF CONTENTS. Chap. 1. Equity Pleading in General. 2. Parties. 3. Proceedings in an Equitable suit. 4. Bills in Equity. 5. The Disclaimer. 6. Demurrer. 7. The Plea. 8. The Answer. 9. The Replication. CG559-2G 5mitl/s elementary taw. 1896. 3G7 pages. .$.'^.75 (lelivered.. BY WALTER DENTON SMITH, Instructor in the Law Department of the I'niversity of Michigan. TABLE OF CONTENTS. Chap. Part 1.— ELEMENTARY JURISPRUDENCE. 1. Nature of Law and the Various Systems. 2. Government and its Functions. 3. Government in the United States. 4. The Unwritten Law. 5. Equity. 6. The Written Law. 7. The Authorities and their Interpretation. 8. I'ersons and Personal Rights. 9. Property. 10. Classification of the Law. Part 2.— THE SUBSTANTIVE LAW. 11. Constitutional and Administrative Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incor])oreal Hereditaments. 1.5. Estates in Real Property. 10. Title to Real Property. 17. Personal I'roperty. 15. Succession After Death. 19. Contracts. 20. Special Contracts. 21. Agency. 22. Commercial Associations. 23. Torts. Part 3.— THE ADJECTIVE LAW. 24. Remedies. 25. Courts and their Jurisdiction. 2G. Procedure. 27. Trials. CG.J.19-2T {Tiffctnij on Ctgcncy. 1903. GOO pages. $3.7o aelivered. By FRANCIS B. TIFFANY, Author of "Death by Wrongful Act," "'Law of Sales," etc. TABLE OF CONTENTS. Chap. Part 1.— IN GENERAL. 1. Introductory — Definitions. 2. Creation of the Relation of Principal and Agent — Appointment. 3. Same (continued) — Ratification. 4. What Acts Can be Done by Agent — Illegality — Capacity of Parties — Joint Principals and Agents. 5. Delegation by Agent — Subagents. 6. Termination of the Relation. 7. Construction of Authority. Part 2.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person — Contract. 9. Same (continued). 10. Admissions by Agent — Notice to Agent. 11. Liability of Principal to Third Person — Torts and Crimes. 12. Liability of Third Person to Principal. Part 3.— RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PERSON. 13. Liability of Agent to Third Person (including parties to con- tracts'). 14. Liability of Third Person to Agent. Part 4.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND agi:js't. 1.5. Duties of Agent to Principal. 10. Duties of Principal to Agent. Appendix. C(;.jr,i)--J8 (Tiffany on Persons anb Domestic delations. 1909. GuG pages. $3.75 delivered. By WALTER C. TIFFANY. Second Edition : Edited by Roger W. Cooley. TABLE OF CONTENTS. Chap. Part 1.— HUSBAND AND WIFE. 1. Marriage. 2. Persons of the Spouses as Affected by Coverture. 3. Rigbts in Property as affected by Coverture. 4. Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. 5. Wife's Equitable and Statutory Separate Estate. 6. Antenuptial and Postnuptial Settlements. 7. Separation and Divorce. Part 2.— PARENT AND CHILD. 8. Legitimacy, Illegitimacy, and Adoption. 9. Duties and Liabilities of I'arents. 10. Rigbts of Parents and of Cbildren. Part 3.— GUARDIAN AND AVARD. 11. Guardians Defined — Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship — Enforcing Guardian's Liability. Part 4.— INFANTS, PERSONS NON COMPOTES MENTIS. AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5.— MASTER AND SERVANT. 16. Creation and Termination of Relation. C6559a-29 Ciffany on Sales. 1908. 534 pages. $3.75 delivered. By FRANCIS B. TIFFANY, A. B., LL. B. Author of "Tiffany on Death by Wrongful Act." Second Edition. TABLE OF CONTENTS. Chap. 1. Formation of the Contract. 2. Formation of the Contract — Under the Statute of Frauds. 3. Effect of the Contract iu Passing the Property — Sale of Spe- cific Goods. 4. Effect of the Contract in Passing the Property — Sale of Goods not Specific. 5. Fraud, and Pietentiou of Possession. 6 Illegality. 7. Conditions and Warranties. 8. Performance. 9. Rights of Unpaid Seller against the Goods. 10. Action for Breach of the Contract. Appendix: Sales Act — English Sale of Goods Act. CG559a-30 Vance on 3n5urana\ 1896. GS3 pages. .<;:1.75 dolivcred. By WILLIAM REYNOLDS VANCE, Professor of Law in the George Washiugton University. The principal object of this treati.se is to give a consistent state- ment of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the iiiles peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the mucii desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties — Concealment, Consent of the I'arties — Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insuranca Appendix. CG559-31 IPilson on 3nternatio]ial £axp. 1910. G23 pages. .$3.75 delivered. By GEORGE GRAFTON WILSON. TABLE OF CONTENTS. Chap. 1. Persons in International Law. 2. Existence, Independence and Equality. 3. Property and Domain. 4. Jurisdiction. 5. Diplomatic Relations. G. Consular and Other Relations. 7. Treaties and Other International Agreements. 8. Amicable Means of Settlement of International Differences. 0. Xon-Amicable ^Measures of Redress Short of War. 10. Nature and Commencement. 11. Area and General Effect of Belligerent Operations. 12. Rights and Obligations During War. 13. Persons During War. 14. Property on Land. 1.5. Property on Water. IG. Maritime Capture. 17. Rules of War. 15. Military Occupation and Government. 19. Prisoners, Disabled and Shipwrecked. 20. Xon-IIostile Relations between Belligerents. 21. Termination of War. 22. Nature of Neutrality. 23. Visit and Search. 24. Contraband. 2.J. Blockade. 2G. Continuous Voyage. 27. Unneutral Service. 28. Prize. 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