ajnrnf II ICaui ^rt^nnl IGibrary KF 380.M66r"""'™"">"-"'™'^ ^'liM™,m* '^^' PropertyCbased on Minor' 3 1924 018 810 006 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018810006 THE LAW OF REAL PROPERTY (BASED ON MINOR'S INSTITUTES) BY RALEIGH COLSTON MINOR. M.A., B.L. PROFESSOR OF LAW IN THE tJNlVERSITV CF VIRGINIA AND JOHN WURTS, M.A., M.L. PROFESSOR OF LAW IN YALE UNIVERSITY ST. PAUL, MINN. WEST PUBLISHING CO. 1910 Copyright, 1909. BY RALEIGH C. 'MINOR AND WEST PUBLISHING CO. (Minor & W.Keai Prop.) PREFACE. Credit must be g-iven to Professor Raleigh Colston Minor for every- thing in this book except the American modifications of the common law, and those I must assume responsibility for. Professor Minor is not to be held in any degree responsible for the scope of the book. In my own work of teaching, I have long felt the need of a text-book on Real Property which did not undertake to give the laws of all the States, and Professor .Minor generously consented to allow his two-volume work on the subject, published in 1908, to be used as a basis for such a book. My plan has been to produce a book which would set forth the common law of Real Property, showing wherein it has been repealed in this country as contrary to our fundamental law or the spirit of our institutions, and to show such statutory changes as are of general im- portance. In carrying out this plan, therefore, I have omitted several special topics dependent on local statutes, a treatment of which might be looked for in a book of general reference on Real Property but which would have deprived this book in a large measure of its raison d'etre. John Wurts. New Haven, Conn., January 5, 1910. (iil)* TABLE OF CONTENTS. Page Division I.— The Tenures of Real Property 1 Chapter I. — The Tenures of Real Property 1 Division II. — The Seveeal Kinds op Real Property, and Their In- cidents 13 Chapter II. — Corporeal Hereditaments or Lands 15 III. — Incorporeal Hereditaments 58 IV. — Incorporeal Hereditaments, Continued — Ease- ments 81 V. — Licenses 114 Division III. — The Various Estates ob Interests in Real Property. .. 121 Pabt I. — The Various Estates in Land, as Respects Their Quan- tity or Duration 123 Chapter VI. — The Seisin 123 VII. — The Fee Simple v:\'2 VIII.— The Fee Qualified 145 IX. — The Fee Conditional 148 X.— The Fee Tail Lll XI. — Life Estates in General IGl XII. — Life Estate by the Curtesy 178 XIII.— Life Estate in Dower 109 XIV. — Estates for Years or Leasehold Estates 2(;S XV.— Estates at Will 289 XVI.— Estates by Sufferance 205 XVII.— Estates from Year to Year 298 XVIII.— Landlord and Tenant 302 XIX.— Waste :;31 Paet II. — The Various Interests in Land, as Respects iue Qual- ifications OF Interest 347 Chapter XX.— Uses 347 XXL— Trusts 3.j0 XXIL— Conditions 390 XXIII.— Mortgages 429 XXIV.— Equitable Liens 4(59 Part III. — The Various Estates in Land, as Respects the Time OP Enjoyment 473 Chapter XXV. — Remainders 475 XXVI.— Reversions *. 529 / , XXVII. — Executory Limitations 535 Minor & W.Real Prop. (v) VI TABLE OF CONTENTS. Page Paet IV. — The Vaeious Estates in Land, as Respects the Com- munity OF Interest Theeein 571 Caiapter XXVIII. — Joint Tenancy 57:^ XXIX. — Tenancy by Entireties 5S(: XXX. — Tenancy in Common 539 XXXI. — Tenancy in Coparcenary 596 Division IV. — Modes of Acquiring Title to Real Pboperty 604 Part I. — Title by Descent 607 Chapter XXXII. — Title by Descent at Common Law 609 Pabt II. — Title by Purchase 620 Cliapter XXXIII.— Title by Occupancy 621 XXXIV.— Title by Accretion 623 XXXV. — Title by Adverse Possession Under Statute of Limitations 628 XXXVI.— Title by Prescription 646 XXXVII. — Title by Conveyance — Alienation In General. . 656 XXXVIII.— Title by Conveyance, Continued— The Deed.. 677 XXXIX.— Title by Conveyance, Continued— The Sev- eral Species of Conveyance 737 XL.— Title by Devise 764 XLL— Title Under Bsercise of Powers 786 XLII.— Title by Estoppel 818 XLIII.— Title by Dedication 823 XLIV.— The Registry or Recording Acts 826 TABLE OF CASES CITED. [the figukes kefeb to sections.] -V. Cooper, 72. Abbiss V. Burney, 636, 704. Abbott V. Bradstreet, 604. V. Cottage City, 1068. V. Kansas City, St. J. & C. B. R. Co., 119. Abercrombie v. Riddle, 203. Abby V. Goodrich, 918. Abrahall v. Bubb, 388. Ackerman v. Hunsicker, 554. V. Shelp, 300. Ackroyd v. Smith, 86, 87, 125. V. Smithson, 417. Acton V. Blundell, 59. V. Woodgate, 923. Adams v. Beadle, 41. V. Beekman, 222. Y. Gillespie, 638. V. Marshall, 100. T. Van Alstyne, 115. Addington v. Wilson, 1006. Addison v. Hack, 108, 122, 126, 127. Aderholt v. Henry, 571. Aggas V. Pickerell, 556. Aiken v. Gale, 571. V. Smith, 327. Aikman t. Harsell, 298, 299. Ainsworth v. Ritt, 366. Akerly v. Vilas, 912. Alabama State Land Co. v. Kyle, 832. Albany's Case, 1061. Albert v. Albert, 704. V. State, 355. Alcutt V. Lakin, 38. Aldin V. Clark, 96. Aldine Mfg. Co. v. Barnard, 32. Aldred's Case, 118. Aldrich v. Cooper, 564, 571. V. Husband, 34. Alexander v. Alexander, 227, 269, 1053. V. De Kermel, 924. V. Ellison, 759. V. Hodges, 498. V. Mills, 1060. Alexander's Cotton, 155. Alexandria Sav. Inst. v. Thomas, 554. Alger V. Kennedy, 373. Allan V. Gomme, 106. Allen r. Allen, 188, 727. V. Bartlett, 346. V. De Groodt, 841. V. Evans, 116. V. Howe, 527. V. Patrick, 569. V. Poole, 859. V. Trustees of Ashley School Fund, 643. V. Weber, 60. Allender v. Sussan, 374. Alley V. Carleton, 103. V. Rogers, 573. Allison V. Allison, 595, 597, 604, 639, 653. V. Kurtz, 1050. Allore V. Jewell, 944. Almy V. Church, 823. Alsberry v. Hawkins^ 270. Altcmus V. Campbell, 826. Althorf V. Wolfe, 352. Amcotts V. Catherick Co., 254. American Locomotive Co. v. Hoffman, 55. Ames V. City of San Diego, 823. V. Norman, 745. Amidon v. Harris, 86. Amory v. Kannoffsky, 306. Amos V. Amos, 606. Ancaster v. Mayer, 564. Anderson v. Brown, 693. V. Cary, 518. MiNOB & W.Real Peop. (vii) Vlll CASES CITED. [The figures refer to sections.] Anderson v. Cincinnati Southern Ry., 53. V. Dugas, lOSl. V. Hays, S55. V. Prindle, 320, 348. V. Tompliins, 883. Andrae v. Haseltine, 116. Andrews v. Brown, 19, 247. V. Day Button Co., 35. V. Gillespie, 913. V. Senter. 49S. Angle V. Marshall, 888. Angus V. Dalton, 849. Anon, 171, 283, 393, 529, 547. Anthony v. Lapham, 53. Anthracite Sav. Bank v. Lees. 606. Antomarchi v. Russell, 103, 110. Anworth v. Johnson, 386. Appling V. Eades, 1024. Archer v. Helm, S35. Archer's Case, 615, 628. Ards V. Watkins, 366. Arglesse v. Muschamp, 465. Arkwright v. Gell, 120. Armentrout v. Gibbons, 1076. Armistead v. Hartt, 443, 677. V. Kirby, 563. Armstrong v. Kerns, 1060. y. Maybee, 370. "v. Risteau, 820. V. Stovall, 892. V. Wilson, 394. Armstrong's Foundry, 155. Arnold v. Arnold, 249. V. Brown, 173, 447. V. Foot, 53. V. Mundy, 56. Arnsby v. Woodward, 366, 376. Artrip v. Rasnake, 565. Asay V. Hoover, 1037, 1057. Ascough's Case, 314. Asher Lumber Co. v. Cornett, 40. Ashley V. Ashley, 643. Astley V. Reynolds, 862. Astry V. Ballard, 384. Atherton v. Pye, 642. Atkin V. Merrell, 310. Atkins V. Kron, 203. Atlanta Mills v. Mason, 107. Atlee V. Backhouse, 862. Attorney General v. Doughty, 118. V. Hall, 708. V. Federal St. Meetinghouse, 123. Attorney General v. Hnbbuck, 19. V. Merrimack Mfg. Co., 151, 520. V. Paruther, 858. V. Sutton, 171, 644. V. Tarr, 1070. Attwater v. Attwater, 518. Atwater v. Bodfish, 88, 107. Atwood V. Atwood, 251. V. Norton, 321. V. Shenandoah Valley R. Co., 1054. Aubin V. Daly, 62. Augustus V. Seabolt, 638. Aulick V. Wallace, 656. Ai-;sterberry v. Oldham, 903. Austin V. Austin, 306. V. Hudson River R. Co., 386. V. Minor. 832. V. Oakes, 1035. V. Thomson, 337. V. Trustees of Charlestown Fe- male Seminary, 859. V. Sawyer, 38. V. Smith, 306. Avelyn v. Ward, 690. Avery v. Clark, 586. v. Dougherty. 358, 368, 912. V. Maxwell, 117. Ayers v. Reidel, 835. Ayliffe v. JIurray, 454. Ayres v. Pennsylvania R. Co., 1068. B Babcocfc V. Kennedy, 557. V. Wyman, 536. Bachelder v. Wakefield, 126. Backenstoss v. Stabler, 38, 41. Backhouse v. Bouomi, 113. v. Wells, 140. Backus V. McCoy, 906. Badger v. Badger, 831. Bagot V. Bagot, 384. Bailey, Petitioner, 1046. V. Carleton, 840. V. Kilburn, 357. V. Robinson, 456. V. Stephens, 67. Baily v. Smith, 567. Baird v. Boucher, 1050. Bakeman v. Talbot, 847. Baker v. Fawcett, 555. V. Hart, 69. V. Jones, 498. CASES CITED. [The figures refer to sections.] Baker v. Jordan, 40. V. Rice, 97. :Bakewell v. Ogden, 1053. Baldwin v. City of Buffalo, 1070. V. Timmins, 907. V. Wallcer, 76. Balfour v. Welland, 441;. Ball V. Dunstervllle, 8SS, 920. V. Nye, 59, 352. V. Taylor, 920. Ballard v. Butler, 112. V. Child, 913. V. Denimon, S51. V. Dyson, 111. V. Tomliuson, 59. Ballentine v. Wood, GOl. Baltimore City v. Appold, 53. V. Warren Mfg. Co., 54. Baltimore Dental Ass'n v. Fuller, 348. Baltimore & O. R. Co. v. Gould, 1070. ^Bancroft v. Wardwell, 341. Banghart v. Flummerfelt, 93. Bangs V. Parker, 106. V. Potter, 103. Bank of Augusta v. Earle, 63. Bank of Commerce v. Owens, 285. Bank of Lansingburgh v. Orary, 40. Bank of Marietta v. Pindall, 565. Bank of Metropolis v. Guttschlick, 556. Bank of Montgomery County's Appeal, 554. Bank of Ogdensburg v. Arnold, 262. Bank of Pennsylvania v. Wise, 41, 365. Bank of State v. Forney, 518. Bank of United States v. Carrington, 421. V. Daniel, 954. Jiank of Utica v. Mersereau, 357. Bank of Waltham v. Inhabitants of Waltham, 20. Banks v. Banks, 1021. V. Haskie, 317. V. Sutton, 203, 314. V. Whitehead, 912. Bannon v. An^ier, 105. Barber v. Harris, 744. V. Root, 227. Barbour v. Barbour, 212. Barclay v. Howell, 832, 842, 1070. Bard V. Elston, 321. Bardeu v. Keverberg, 863. Barker v. Barker, 222, 254. Barker v. Clark, 848. Barldey v. Wilcox, 119. Barlisdale v. Elam, 504. V. Halrston, 126. Barlow v. Wainwright, 320, 347, 348. Barnard v. Edwards, 299. V. Whipple, 121. Barnard's Lessee v. Bailey, 518. Barnes v. Crowe, 1028. V. Lloyd, 87. V. Wood, 287. Barnett v. Gaines, 909. Barney v. Frowner, 304. V. Keokuk, 56. V. McCarty, 1030. Barns v. Wilson, 368. Barnum v. Barnnni, 203, 647, 690. V. Phenix, 567. Barre v. Fleming, 909. Barren v. Sabine, 540. Barrett v. Boddie, 373. V. Failing, 212. V. Hinckley, 565. V. Rockport Ice Co., 60. Barrie v. Smith, 496, 516, 527. Barrington v. Tristram, 172. Barrow v. Landry, 119. V. Richard, 475. Barry v. Edlavitch, 116. Barthell v. Peter, 888. Barton v. Bidgeway, 449. Berwick's Case, 214. Barwick v. Thompson, 820. Bashaw v. Wallace, 959. Basset v. Nosworthy, 435, 579, 939. Bassett v. Bradley, 570. V. Maynard, 125. V. Salisbury Mfg. Co., .119. Batchelder v. Dean, 317, 325. V. Keniston, 814. Batchelor v. Brereton, 892. Bates V. Ball, 861. V. Bates, 249. V. Boston & N. Y. C. R. Co., 920. V. Norcross, 295. Bates' Case, 252. Batterman v. Albright, 38, 41. Batting v. Martin, 347. Baugher v. Wilkins, 35S, 368. Bauman v. Boeckeler, 1069. Bayard v. Hargrove, 1070. Baylor v. Baltimore &, O. R. Co., 117. Bay V. Williams, 570. CASES CITED. [The figures reler to sections.] Beach v. Grain, 370. Beaman v. Russell, 959. Bean v. French, 93. Beard v. Murphy, 114, 119. V. Nuthall, 292. Beardslee v. Beardslee, 252. Beardsley v. Hotchkiss, 1037. Bearpark v. Hutchinson, 809. Beatty v. Clark, 1054. V. Kurtz, 106S. Beaty v. Bordwell, 759. Eeauclerk v. Dormer, 707. Beavers v. Smitli, 310. Becar v. Flues, 321. , Beck V. De Baptist, 579. Beckett v. Cordley, 581. Beckford v. Parnecott, 1028. Beck's Appeal, 1035. Beckwith v. Howard, 322. tiedell's Case, 999. Bedford v. Terhune, 374. Beekman v. Frost, 1080. Beeson v. Burton, 336. Beham v. Potter, 1070. Belcher v. Belcher, 1044. Bell V. American Protective League, 377. V. Ellis, 341. V. McClintock, 55. V. Mayor, 203. V. Nealy, 280. V. Ohio & P. R. Co., 70. Bellasls v. Hester, 325. Bellefontaine Imp. Co. v. Nledring- haus, 813, 816. Beller v. Robinson, 317. Bellis V. Bellis, 833. Bells v. Gillespie, 171. Bender v. George, 377. V. Luckenbach, 420. Benedict v. Benedict, 126. v. Morse, 343. Benham v. Potter, 1070. Benjamin v. Wilson, 321. Benne v. Miller, 813. Bennet v. Davis, 224. Bennett v. Gaddis, 1020. V. Garlock, 147. V. Reeve, 68. V. Trustees M. E. Church, 201. Benson v. Chester, 68. Bentley v. Root, 108. Benton v. Crowell, 882. Benton v. Johncox, 53. Bergman v. Roberts, 357. Berkeley v. Hardy, 888. Berry v. Mutual Ins. Co., 580. V. Wade, 237. Bertles v. Nunan, 745. Best V. Jenks, 298. Bettison v. Budd, 357. Bevans v. Briscoe, 42, 44. Beverley v. Beverley, 603. Beverley's Case, 858, 861. Bewick v. Fletcher, 26. V. Whitfield. 393. Bibb V. Thomas, 1024. Bieknell v. Comstock, 820. Bigelow V. Ayrault, 952. V. Hubbard, 909. V. Shaw, 60. Biggs V. Brown, 45. Bigley v. Watson, ■ 600. Bilderback v. Boyce, 1050. Billan v. Hercklebrath, 212. Billings V. Taylor, 265, 384. Bingham v. Bingham, 954. Bingham's Appeal, 1050. Bingham's Case, 607. Binkley v. Forkner, 25. Birch V. Linton, 859. V. Wright, 557. Birmingham v. Allen, 113. V. Kirwan, 295. Birnle v. Main, 573. Bishop V. Bishop, 34. V. Remple, 1050. V. Truett, 826. Bishop of Bath's Case, 317. Bishop of Winchester v. Knight, 393. Bisquay v. Junelot, 116. Bittinger v. Baker, 48. Black V. Gilmore, 322, 363, 897. V. O'Hara, 852. Blackburn v. Stables, 628. Blackmore v. Boardman, 315. Blair v. Security Bank, 925. V. Snodgrass, 420. V. Thompson, 245. Blaisdell v. Morse, 892. V. Portsmouth, G. F. & C. R. R., 125. Blake v. Everett, 909. V. Graham, 1076. V. Sanderson, 357. Blake's Case, 569. CASES CITED. [Tho figures refer to sections.] XI Blanchard v. Baker, 53. V. Blanchard, 600. V. Brooks, 557, 659, 1066. Blantin v. Whltaker, 357. Bleecker v. Smith, 498. Blennerhasset v. Sherman, 948. Blevins v. Smith, 269. Bligh V. Brent, 20. Bliss V. Johnson, 826. V. Whitney, 26. Bloch V. Isham, 116. Blondeau v. Sheridan, 913. Bloodworth v. Stevens, 365. Bloomer v. Waldron, 1037. Blore V. Sutton, 1054. Blount V. Harvey, 903. Blow V. Maynard, 249, 250, 284. Blumenberg v. Myres, 346. Blyth V. Dennett, 349. Boardman v. Reed, 928. Board of Education of City & County of San Francisco v. Martin, 823. Board of Education of Incorporated Village of Van Wert v. Inhabitants of Town of Van Wert, 106S, 1070. Board of Regents for Normal School Dist. No. 3 V. Painter, 1068. Board of Trustees of Oberlin College V. Blair, 434. Board of Works v. United Tel. Co., 17. Boatman v. Lasley, 86. Bodflsh V. Bodfish, 848. Bogardus v. Trinity Church, 879. Bogget v. -Frier, 863. Bohannon v. Combs, 284. Boisseau v. Fuller, 327. Bolivar Mfg. Co. v. Neponset Mfg. Co., 53, 852. Boiling v. Boiling, 291. Bolton V. Bishop of Carlisle, 960, 961. Bombaugh v. Miller, 105. Bonafous v. Rybot, 529. Bond V. Godsey, 265, 266. v. Willis, 96. Bone V. Tyrrell, 205. Bonewlts v. Wygant, 816. Bonnelli v. Blakemore, 93. Bonner v. De Loach, 117. V. Peterson, 306. Bonomi v. Backhouse, 113. Bool V. Mix, 859. Boone v. Ohiles, 435. Boone v. Moore, 892. Booraem v. North Hudson County R. Co., 1070. V. Wells, 1051. Booth V. Adams, 758. V. Starr, 913. Boraston's Case, 317, 599, 601, 602, 603, 604. Boreel v. Lawton, 358, 368, 373. Borland v. Marshall, 214, 215. Borough of Birmingham v. .^nderson, 931. Borough of Bradford v. Pickles, 59. Borst V. Corey, 556. V. Empie, 94. Bostick V. Winton, 1055. Boston Water Power Co. v. Boston & W. R. Co., 64, 89. Boston & L. R. Corp. v. Salem & L. R. Co., 64, 65. Boston & P. R. Corp. v. Doherty, 108, 122, 127. Bcstwick V. Williams, 912. Boswell V. Goodwin, 539, 554. Boutelle v. Bank, 1047. Bouvier v. Strlcklett, 815. Bovee v. Hinde, 923. Eovey v. Smith, 1037. Bowe V. Hunkling, 355. Bowen v. Beck, 570. V. Bowen, 475. V. Collins, 259. V. Conner, 94. V. Guild, 826. V. Team, 108. Bowers v. Bowers, 40. Bowles V. Poore, 809. Bowles' Case, 140, 253, 393, 615, 626, 759. Bowling V. Crook, 498. V. Dobyn, 677. Bowlsby V. Speer, 119. Bowne V. Lynde, 571. Boyd V. Beck, 539. V. Carlton, 304, 309. V. Conklin, 119. V. Cook, 1024. V. Eby, 1006. V. Hunter, 249, 252, 314. V. Slayback, 024. Boyd's Estate, In re, 1042. Boyers v. Newbanks, 306. Boykin v. Ancrum, 201. Xll CASES CITED. [The figures reler to sections.] Boyle V. Peabody Heiglits Co., 315. V. Tamlyn, 117. Boynton v. Boynton, 295. Bozeman v. Browning, 859. Brace v. Duchess of Jlarlborough, 579. Brackett v. Persons Unknown, 266. Bradford v. Griffin, 201. V. Foley, G.j4. T. Monks, 1047, 1048. Bradley v. Bailey, 42. y. Fuller, 557. V. Holdsworth, 20. Bradley's Fish Co. v. Dudley, 848. Bradstreet v. Clark, 488. Braicbridge v. Cook, 668. Braman v. Bingham, 92.3. Branch v. Bowman, 186. V. Doane, 845. Brandon v. Old, 861. V. Robinson, 525, 526. Brann v. Monroe, 924. Branton v. Griffits, 41. Brant v. Virginia Coal & Iron Co., 1067. Braxton v. Coleman, 304. Bray v. Bree, 1042. Breckenridge v. Auld, 551. Brecknock Nav. v. Pritchard, 396. Bredon's Case, 333, 670. Breeding v. Davis, 227, 228. Brennan v. Whitaker, 25, 34. Brent v. Chapman, 820. V. Washington, 172. Bresee v. Bradfield, 447. Brett V. Donaghe, 140. Brewer v. Conover, 341. V. Herbert, 18. Brewster v. Kidgile, 903. V. Kitchin, 903. Brice V. Randall, 96. V. Stokes, 453. Bridges v. Pureell, 126. Bridgewater v. Bolton, 140. Briggs V. Hall, 84, 366, 373. V. Thompson, 373. Bright v. Buckman, 1073. V. Knight, 421. V. Walker, 107. Briukley v. Hambleton, 377. Bvinkmeyer v. Browneller, 554. Bristow V. Boothby, 1049. Britton v. Thornton, 706. Broadbent V. Ramsbotham, 58, 119, 853. Broaddus v. Turner, 640. Broadhurst v. Morris, 719. Broadus v. Rosson, 442. Brock V. Bear, 135, 835. Brockenbrough v. Ward, 495. Broderick y. Broderick, 943. Brograve v. Winder, 1018. Bromfleld v. Crowder, 600, 601, 677. Bronson v. Coffin, 115. Brooke y. Mernagh, 381. V. Washington, 19, 247, 422. Brooks V. Curtis, 100, 115, 116. V. Everett, 249. V. Marbury, 949. V. Reynolds, 118. Brookville & M. Hydraulic Co. v. But- ler, 60. Broom v. Hore, 366. Brossart v. Corlett, 106. Brothers v. Hurdle, 42. Brough T. Higgins, 202. Broughton v. Pensacola, 785. V. Randall, 245. Brown v. Allen, 94. v. Baldwin, 25. v. Banner Coal & Coal Oil Co., 978. V. Bowen, 55. v. Brown, 701. V. Chadbourne, 56, 57. V. Chicago, B. & K. C. R. Co., 833. V. Higgs, 1031, 1046, 1047, 1052. V. McGowan, 324. V. Morris, 49. y. Osgood, 949. V. Parsons, 317. V. Renshaw, 1060. V. Rice, 954. V. Robins, 114. V. Simons, 553. V. Spilman, 61, 69. V. Stone, 112. V. Thorndike, 1021. V. Thurston, 38, 41, 42. V. Westerfield, 923. Browne v. Molliston, 1005. Brownell v. Curtis, 1076. Brownson v. Hull, 744. Brown's Trusts, In re, 1053. Brownsword v. Edwards, 700. CASES CITED. [The figures refer to sections.] xni Bruce v. Bissell, 601. Bruerton's Case, 366. Bruley v. Garvin, 123, 127. Brumagin v. Bradshaw, 832. Brummell v. Harris, 835. V. JlcPhersoii, 497, 525. Brunton v. Hale, 847. Bryan v. Hyre, 1011. T. Ramirez, 1067. V. Stump, 888. Buck V. Buck, 420. V. Pickwell, 40. V. Winn, 247. Buckeridge v. Glasse, 425. Buckles T. Lafferty, 881. Buckley v. Barber, 732. V. Kenyon, 74. Buckout V. Swift, 34. Buckworth v. Thirkell, 233. Budd V. Hiler, 38. Buell V. Cook, 327. Buffalo City Cemetery r. City of Buf- falo, 121. Buffalo, N. Y. & E. R. Co. v. Stigeler, 932. Buffar T. Bradford, 172, 719. Bugg V. Seay, 939. Buggett V. ileux, 519. Building Light & Water Co. v. Fray, 906, 907, 913. Bull, Petition of, 107. V. li^ntucky Nat. Bank, 526. y. Kingston, 708. Bullard v. Bowers, 262, 302. V. Harrison, 96. Bullock V. Dommitt, 370, 396. V. Dowues, 601, 604. V. Stones, 714. V. Wilson, 56. Bulwer v. Bulwer, 43. Bumgardner v. Allen, 555. Buntin v. City of Danville, 1069. Burbank v. Whitney, 681, 690. Burch V. Smith, 943. Burdick v. Cheadle, 350. Burdine v. Burdine, 244. Burdis v. Burdis, 469, 470, 499. Burger v. Grief, 571. Burgess v. Lamb, 387. Burghardt v. Turner, 839. Burgner v. Humphrey, 113. Burhans v. Hutcheson, 567. Burke v. Shaver, 505. Burk V. Hill, 909. Burk's Appeal, 287. Burleigh v. Piper, 41. Burley's Case, 628. Burling v. Read, 345. Burn V. Burn, 888. V. Phelps, 373. Burnell v. Malouey, 835. Burnes v. McCubbin, 371. Burnett v. Thompson, 334. Burnham v. McQuesten, 851. V. Webster, 56. Burr V. Beers, 570. T. Stenton, 322, 368. Burroughs v. Saterlee, 58. Burrows v. Gallup, 826. 833. Burrus v. Wilkinson, 912. Burtinshaw v. Gilbert, 1(I29. Burtners v. Keran, 899, 10G4. Burton v. Burton, 270, 888. V. Leroy, 952. V. Smith, 378. Burwell v. Hobson, 53, 07. Bury V. Young, 923. Buschman v. Wilson, 366. Bushfield v. Meyer, 568. Bustard's Case, 250. Butcher v. Butcher, 344, 1036. V. Creel, 94. Butler v. Buckingham, 287. V. Gazzam, 1037. V. Peck. 119. V. tJ. S., 888. Butler & Baker's Case, 887, 925. Butt V. Ellett, 361. V. Imperial Gas Co., 118. Buttenuth v. St. Louis Bridge Co., 815. Butterfield v. Reed, 105, 108. Buzby's Appeal, 604. Byassee v. Reese, 40. Byers v. Locke, 939. Cabell v. Vaughan, 995. Cadaval v. Collins, 862. Cadell V. Palmer, 695, 696. 697. Cadwalader v. Bailey, 67, 86, 87. Cagle V. Parker, 93. Cahill V. Palmer, 833. Caldwell v. Fulton, 49, 69. V. Jacob, 202. XIV CASES CITED. [The figures refer to sections.] Caldwell v. Slade, 351. Calhoun v. Jones, 1006. Callen v. Hilty, 122. Callis V. Kemp, 707. Calvert v. Aldrich, 759. V. Rice, 266, 382. Calvin v. Fraser, 1024. Calvo V. Davies, 570. Cambridge v. Rous, 1031. Camden Mut. Ins. Ass'n v. Jones, i;y5. Camp V. Cleary, 518,' 525. Campbell v. Davis, 950. V. French, 1021. v. Holt, 820. V. Leach, 1033. V. Murphy, 303. V. Roddy, 25. V. Sandys, 653. V. Smith, 570. V. Wallace, 826. V. Wilcox, 891. V. Wilson, 118. Canfield v. Andrews, 53. Cannavan v. Conklin, 350. Cannon v. Barry, 382. Canny v. Andrews, 105. Capron v. Green way, 88, 107. Carbrey v. Willis, 120. Cardigan v. Armitage, 63. Care v. Keller, 299. Carleton v. Franconia Iron & Steel Co., 353. v. Redihgton, 126. Carlin v. Chappel, 113. V. Paul, 102. Carlisle v. Cooper, 852. Carlton v; Blake, 100. Cam V. Haisley, 432. Carnall v. Wilson, 299, 300. Carneal v. Lynch, 310, 748. Carney v. Kain, 147, 1058. V. iiosher, 46. Caroenter v. Koons, 571. Carpenter v. Allen, 25. V. Garrett, 131, 213, 214, 215. v. Gold, 50. ' V. Koons, 571. V. Longan, 565, 567. V. Snellings, 891. V. Walker, 22. Carpenter's Estate, In re, 880. Carper v. Marshall, 539, 587. Carr v. Oarr, 240. Carr v. Givens, 214, 215, 217. V. Williams, 287. Carrol v. Bleneow, 186, 863. Carson v. Carson, 1046. V. Godley, 350. Carter v. Chevalier, 840. V. Dale, 224. V. Denman, 909, 913. V. Doe ex dem. Chaudron, 920. V. Goodwin, 302. Cartwright v. Maplesden, 108, 122, 127. Caruthers v. Hall, 571. Cary v. Daniels, 53. v. Prentiss, 539. Casbome v. Scarfe, 257. Casebeer v. Mowry, 55. Case V. Hoffman, 119. Case Mfg. Co. v. Garven, 27. Casey v. Gregory, 357. Cassilly v. Rhodes, 48. Cass V. Thompson, 267. Casterton v. Sutherland, 1046, 1052. Castillero v. V. S., 49. Castner v. Riegel, 113. Castro V. Geil, 821. Catasauqua Bank v. North, 23, 32. Catlin v. Brown, 704. V. Ware, 303, 304. Cator V. Pembroke, 386. Cattlin V. Brown, 701. Caufield v. Clark, 835. Cazassa v. Cazassa, 924. Central Bridge Corp. v. City of Low- ell, 64. Central Wharf & West Dock Corp. v. Proprietors of India Wharf, 103. Chadeayne v. Robinson, 119. Chadleigh's Case, 607. Chadock v. Cowley, 640, 642. ChafCee v. Franklin, 263. Chamberlain, In re, 38, 41. Chamberlayne v. Dummer, 387, 388. Chambers v. Pleak, 357. Champlin v. Champlin, 271. Chance v. Branch, 835. Chandler v. Cheney, 747. V. Rushing, 840. T. Simmons, 859. V. \ on Roeder, !tel. Chanet v. Villeponteaux, 1048. Chaney v. Chancy, 264. Chapin v. Brown, 102. CASES CITED. [The figures refer to sections.] XT Chapin v. Crow, 604. Chapman v. Bluck, 327. V. Chapman, 244, 727, V. Floyd, 106S. V. Holmes, 913. V. Price, 224. V. Sims, 978. V. Turner, 543. Chappell V. New York, N. H. & H. R. Co., 94, 895. Charles River Bridge Co. v. Warren Bridge, 65. Charless v. Rankin, 113, 114. Chartiers Block Coal Co. t. Mellon, 61, 69. Chase v. Silverstone, 59. V. Tacoma Box Co., 26. V. Walker, 902. V. Weston, 913. V. Wingate, 31. Chasemore v. Richards, 58, 59, 119, 853. Chase's Case, 249, 282, 310. Chastey v. Ackland, 118. Chasy t. Gowdy, 1058. Chatfield v. Wilson, 59. Cheek v. City of Aurora, 823. Cheeseborough v. Green, 21. Cheetham v. Hampson, 350. Cheever v. Pearson, 336. Chesapeake & O. R. Co. v. Walker, 813, 869, 879, 1067. Chesley v. King, 59, 118. Chester Emery Co. v. Lucas, 49. Chesterfield v. Bolton, 396. V. Janssen, 946, 947. Chestnut v. Tyson, 912. Chatham v. Williamson, 70. Chew V. Commissioners of Southwark, 215. V. Keller, 600, 601, 657. Chicago & N. W. R. Co. v. Hoag, 849. Chilcott v. Hart, 647. Child V. Chappell, 102. Chipman v. Palmer, 54. Cholmley's Case, 646, 648. Cholmondeley v. Clinton, 550, 653. V. Meyrlck, 653. Chowning v. Cox, 545. Christian v. Cabell, 18. V. Dripps, 27. Christy v. Pulliam, 1049. V. Spring Valley Water Works, 840. Church V. Church, 263. V. Gilman, 923. V. Wells, 121. Churchill v. Dibhen, 865. T. Reamer, 220. City of Baltimore v. Frick, 1069. City of Bedford v. Willard, 823. City of Boston v. Richardson, 8;?4, 932. City of Chicago v. Chicago, R. I. & P. E. Co. 1069. V. Middlebrooke, 823. City of Cincinnati v. Penny, 113. V. White, 1068. City of Cleveland v. State Bank, 1037. City of Covington v. McNickle, 823. City of Ft. Smith v. McKibbin, 823. City of Galveston v. Williams, 108. City of Hannibal v. Draper, 1068. City of Hartford v. New York & N. E. R. Co., 1070. City of Jacksonville v. Lambert, 119. City of London v. Greyme, 881. City of New York v. Corlies, 350. City of New York v. Law, 85, 86. City of Norfolk v. Nottingham, 1069. City of Peoria v. Simpson, 350. City of Portsmouth v. Shackford, 1035. City of Quincy v. Jones, 113, 114, 853. City of Richmond v. Gallego Mills Co., 1068. City of Rome v. Omberg, 113 City & County ' of San Francisco v. Calderwood, 1070. V. Iiawton, 978. Claflin v. Boston & A. R. Co., 94, 895. Claiborne v. Henderson, 257, 259. Clanton v. Estes, 600. Clap V. Draper, 38. Clapp V. Ingraham, 430. Clark V. Baker, 915. V. Banks, 45. V. Chamberlin, 928. V. Clark, 212. V. Oogge, 99. V. Conroe's Estate, 912. V. Debaugh, 97. V. Fisher, 1008. V. Harvey, 42. V. Hill, 26. V. Hulsey, 835. V. Hutzler, 933. V. McGee, 902. V. Martin, 902. V. Middlesworth, 1044, XVI CASES CITED. [The figures refer to sections.] Clark V. Mmiroe, 245. Y. Oliver, 464. V. Parsons, 1067. V. Seirer, 287. T. Swift, 913. V. Wheelock, 337, 342. Clarke v. Courtney, 888. V. Curtis, 389, 390, .398, 304. V. McClure, 832, 838. V. Merrill, 317. Clarkson v. Bootli, 841, V. Skidmore, 358. Clary v. Clary, 1006. V. Owen, 25, 34. Clauncli T. Allen, 912. Clavering v. Olavering, 265, 384. Clay, In re, 1047. V. Chenault, 708. V. Sliarpe, 547. Claycomb v. Munger, 913. Clayton v. Biakey, 320. Clearwater v. Rose, 140. Clement v. Bank of Rutland, 913. V. Wheeler, 388. v. Youngman, 69. Clendenin t. Maryland Const. Co., >1070. Clepper v. Livergood, 223. Clare's Case, 416, 651, 1050. Cleveland Co-operative Stove Co. v. Wheeler, 350. Clifford v. Burlington, 1054. Clift V. Clift, 310. Clifton V. Montague, 355. Clinton v. Myers, 53. Clive's Case, 1052. Clough V. Bowman, 928. V. Hasford, 341. Clowes V. Dickenson, 571. Clun V. Fisher, 207. Clun's Case, 207, 302, 365, 366. Clyne v. Helmes, 350. Coal Creek Min. Co. v. Heck, 94. Coalter v. Hunter, 834, 845. Coates V. Cheever, 265, 302, 310, 384. Coates v. Louisville & N. R. Co., 1047. Cobb V. Arnold, 357. f V. Davenport, 851. V. Lavalle, 813. Cochran v. Flint, 21, 23. V. O'Hern, 224. V. Van Surlay, 860. Cocke V. Philips, 220, 249, 688. Cocker v. Cowper, 126. Cockran v. Guild, 909. Cockrill V, Armstrong, 262. Cody V. Quarterman, 347. Coffin V. Coffin, 394, 1006. Cofiman v. Huck, 341. Ooggins' Appeal, 704. Coggs v. Bernard, 539. Cogswell V. Tlbbetts, 280. Colbert) V. Rings, 290. Colby V. Kenniston, 1073. V. Osgood, 910. Coldiron v. Asheville Shoe Co., 18, 420. Cole V. Green, 381. V. Hadley, 102. V. Sewell, 646. V. Wade, 1047. V. Winnipisseogee Lake Cotton & Woolen Mfg. Co., 130. Colegrove v. Dios Santos, 22, 35. Coleman v. Chadwick, 49. v. Seymour, 653. Coles V. Berryhill, 1074. y. Coles, 246. V. Withers, 539, 556, o67, Collamer v. Kelley, 991. Collier v. Cowger, 914. V. Jenks, 31. Collins V. Benbury, 56. V. Canty, 349. V. Castle, 902. V. Chartiers Valley Gas Co., 58. V. Collins, 600. V. Foley, 1033. V. Lynch, 833. V. Prentice, 99, 103. Collins Mfg. Co. v. Marcy, 475, 527. Collup V. Smith, 1020. Colson V. Colsou, G20. Colthirst V. Bejushin, 650. Columbia College v. Lynch, 002. Columbia Oil Co. v. Blake, 61. Colvin V. Warford, 344. Comber v. Hill, 642. Combe's Case, 732, 888. Combs V. Combs, 708. Comer v. Chamberlain, 218, 226. Commercial Bank v. Cnnuingham, 554. Com. V. Birchett, 64. v. Burcher, 429. V. Chapin, 5(3. V. Dudley, 961. CASES CITED. [The figures refer to sections.] XVll Com. V. Gibson, 829. V. Hersey, 21. V. Vincent, 56. Conduitt V. Koss, 903. Confiscation Cases, 155. Congdon v. Morgan, 832. Conger v. Atwood, 300. Congham v. King, 378. Congleton v. Pattison, 375, 901, 903. Congregational Soc. v. Starlj, 146. Conklln v. Egerton, 1047, 1048. Connecticut Mut. Life Ins. Co. t. Tal- bot, 565. Conner v. Woodflll, 852. Connolly v. Brantsler, 295. Connor v. Sullivan, 849. Couover v. Smith, 375. V. Wright, 299. Conrad v. Long, 507. V. Saginaw Min. Co., 29, 35. Consumers' Ice Co. v. Bixler, 374. Converse v. Converse, 1005. Conway v. Alexander, 541. Conyers v. Scott, 852. Cooch V. Goodman, 920. Coogler V. Rogers, 1067. Cook V. Cook, 172, 2C4, 719. V. Fountain, 413. V. Garrard, 642. V. Humber, 323. V. Pridgen, 126. V. Seaboard Air Line Ry., 53, 55. V. Stearns, 122. V. Tullis, 425. Cooke, Ei parte, 648. V. Clayworth, 861. Cool V. Peters Box & Lumber Co., 123. Cooley V. Board of Wardens of Port of Philadelphia, 56. Coolidge V. Learned, 844. Coombes v. Thomas, 1079. Coombs V. Jordan, 21. Coomler v. Hefner, 348. Cooper V. Adams, 337. V. Cooper, 152. V. Davis, 537. V. Hepburn, 606. V. Johnson, 29. V. Jones, 642. V. McDonald, 224. V. Trustees of First Presbyterian Church, 121. V. AVoolft, 38. Mi^'OK & W.Real Phop.— b Coots V. Yewell, 606. Copeland v. McAdory, 912. Cope V. Rowland, 940. Ooppage V. Alexander, 507, 512, 513, 514. Coi'^et's Case, 649, 711. Corbett v. Hill, 21. V. Laurens, 202. Corder v. Morgan, 547. Cordova v. Hood, 435. Cornell v. Todd, 94. Corning, Ex parte, 584. V. Gould, 105, 109. Cornish v. Cawsy, 325. Corporation of London v. Riggs, 94, 96, 99, 895. Corr V. Porter, 269, 283, 285. Corse V. Chapman, 601, 606, 1044. Cory V. Cory, 861. Coryton v. Helyar. 184. Coster's Ex'rs • v. Bank of Georgia, 1081. Costigan v. Pennsylvania R. Co., 903. Cotting V. De Sartiges, 1050. Cottrell V. Hampton, 441. Couch V. Eastham, 1006. Coulter V. Norton, 373. Coulthard v. Davis, 815. V. Stevens, 812. Counden v. Gierke, 607. Countess of Darby's Case, 603. Courtney v. Taylor, 555. Coupe V. Piatt, 350. Cowan V. Radford Iron Co., 335, 336. Coward v. Marshall, ](J22. Cowell V. Colorado Springs Co., 469, 518, ri27, 672, 869. Cowen V. Sunderland, 355. Cowlam V. Slack, 68. Cowles V. Kidder, 55, 125, 126. Cowling V. Higginson, 847. Cox V. Arnold, 813, 816. V. Couch, 932. V. FoiTest, 105, 848, 851. V. James, 102. V. McGowan, 859. Coyle V. Davis, 541. Crabtree v. Baker, 119. V. Bramble, 258. Craddock v. Riddlesbarger, 38, 41. Craft V. Latourette, 588. Craig V. First Presbyterian Church, 121. XVlll CASES CITED. [The figures refer to sections.] Craig V. Leslie, 18. V. Van Bebber, 839. V. Watson, 42. Craige v. Morris, 300. Cralle v. Cralie, 212. Crampton v. Prince, 586. Cranciie v. Brancli, 835. Crane v. Brigliam, 29. Orary v. Goodman, 835. Crawford v. Jones, 857. V. Langmaid, 1035. V. Patterson, 475, 902. V. Witherbee, 903. Creecli v. Croclcett, 343. Creekmur v. Creekmur, 198. Cregier, In re, 220, 250. Creigh v. Henson, 335. Crenshaw v. Slate River Co., 57, 812. Crest V. Jack, 21. Crews V. Pendleton, 17, 48. Cribbing v. Markwood, 946. Criswell v. Grumbling, 194. Croade v. Ingraham, 294. Crocker v. Old South Society In. Bos- ton, 498. Croft V. Lumley, 525. Crofts V. Powel, 54T. Crommelin v. Thiess, 347. Crone v. Odell, 172. Crooker v. Holmes, 948. V. Jewell, 913. Crosdale v. Lanigan, 122, 126. Crosland v. Pottsville Borough, 119. V. Rogers, 100. Cross V. Lewis, 853. V. Marston, 21. Crosse v. Young, 912. Grossman v. Field, 677. Crouch V. Fowle, 368. V. Puryear, 265, 384. Crow V. Kightlinger, 214. Crowell V. Hospital of St. Barnabas, 570. V. Packard, 909. Croxall V. Shererd, 820. Crump V. Norwood, j53. Cruse V. McKee, 1036, 1053. Crusoe v. Bugby, 371. Cubitt T. Porter, 116. Cueman v. Broadnax, 1049. Culbertson v. Stevens, 245. Culver V. Rapper, 262. Gumming v. Gumming, 571. Cundell v. Dawson, 940. Cunningham v. Holton, 337. V. Horton, 347. V. Moody, 258, 275, 104S. V. Robertson, 840. Curl V. Lowell, 344. Currey, In re, 519. Currie v. Donald, 924. Currier v. Barker, 347. Curtis v. Curtis, 946. V. Galvin, 342. V. Leavitt, 920. Gurtiss V. Ayrault, 59, 119. Gushing v. Spalding, 518. Cutler V. Smith, 124. D Da Costa v. Davis, 503. Dakin v. Williams, 497. Dale V. Bartley, 638. Daley v. Norwich & W. R. Co., 350, 354. Dalton V. Angus, 114. Daly V. James, 1051. V. Wise, 355. Dame v. Dame, 21, 25. Dana v. Valentine, 105, 118. Danforth v. Smith, 262. Daniel v. Gamplin, 724. V. Leitch, 564. V. McManama, 233. V. Mason, 866. V. North, 118. V. Wood, 121. Daniel Bell, Tie, 56. Daniels v. Pond, 31. Darcey v. Bayne, 727. Darcus V. Crump, 638. Darcy v. Blake, 223, 257. Dark v. Johnston, 88, 125, 126. Darley Colliery Co. v. Mitchell, 113. Dartmouth College v. Woodward, 64, 65. Datesman's Appeal, 202. Daud v. Kingscote, 66. Dauenhauer v. Devine, 116. Davenport v. Magoon, 381. V. Oldis, 642. V. Regina, 498. V. Shants, 25. V. Sovil, 2S7. CASES CITED. [The figures refer to sections.] XIX Davidson T. Kemper, 430; V. Keed, 1068. Davie v. Brlggs, 255. Davies v. Miller, 143. Davis V. Bawcum, 657. V. Brocklebank, 342. V. Calvert, lOOS. V. Christian, 19, 247. v. Coblens, 821. V. Dudley, 859. V. Eastham, 34. V. Emery, 34. V. Eyton, 46. V. Getchell, 53. V. Gilliam, 382. V. Howcott, 1051. V. Jones, 287. V. Judd, 920. V. Leo, 394. V. McArtliur, 830. V. Mason, 215, 223. V. Morriss, 953. V. Norton, 654. V. Pacific Imp. Co., 923. V. Parker, 287. V. Smith, 912. V. Stevens, 719. V. Stroud, 840. V. Townsend, 302. V. Waddington, 324, 336. V. Winslow, 56. T\avock V. Nealon, 829. Dawson v. St. Paul Fire & Marine Ins. Co., 102, 106. V. Watkins, 832. Day V. Brenton, 433. V, Caton, 116. V. Chism, 912. V. Cochran, 222, 832, 83& V. Day, 56. V. Trigg, 928. V. Walden, 103, 105, 108. Deacon v. Doyle, 909. Dean v. Richmond, 212. V. Walker, 570. Dean of Windsor v. Glover, 72, 76. Dearborn v. Taylor, 283. Deare v. Hutchinson, 35. Dearmond v. Dearmond, 271. Deaton v. Taylor, 498. Debow V. Colfax, 46. Deck V. Tabler, 421. Deerly v. Duchess of Mazarine, 863. Deery y. Cray, 931. Degman v. Degman, 1036, 1055. Degraffenreid v. Scruggs, 26. De Gray v. Monmouth Beach Club House, 902. V. Klchardson, 215. De Haro v. V. S., 126. Delahoussaye v. Judice, 119. Delano v. Montague, 321. Dellett v. Kemble, 1067. Demarest v. Wynkoop, 556, 822. Demby v. Parse, 36. Demill v. Reid, 63G, 639. Deming v. Bullitt, 920. De Mott V. Hagerman, 42. Demuth v. Amvreg, 852. Den V. Demarest, 214. V. Fogg, 152. V. Roake, KM). Deneale v. Morgan, 1048. Den ex dem. Read v. Richman, 1081. Denham v. Holeman, 832. Denn v. Barnard, 820. V. Cartright, 317. v. Gillot, 613. V. Puckey, 644. V. Slater, 152. Dennett v. Hopkinson, 41. Dennis v. Wilson, 86. Denton v. Clark, 1048. v. Leddell, 100. De Peyster v. Michael, 516, 518, 522, 523. Deuster v. McCamus, 573. Devaynes v. Robinson, 1037. Devereux v. McMahon, 920. Devonshire v. Eglin, 126. Devore v. Sunderland, 907. De Wahl v. Braune, 863. Dew v. Clark, 1006. De Witte v. De Witte, 172, 719. Devritt v. Pierson, 373. Dexter v. Beard, 903. V. Manley, 358. D'Eyncourt v. Gregory, 36. Dick V. Harby, 1047, 1050. Dickens v. Barnes, 928. Dickenson v. Dickenson, 1014. Dickerson v. Colgrove, 820, 1067. Dickinson v. Dickinson, 891. V. Hoomes, 377. Dickinson's Appeal, 450. Dickson's Trust, 525. XX CASES CITED. [The figures refer to sections.] Didier v. Patterson, 554. Diehl V. Emlg, 923, 924. Digby V. Atkinson, 370. Dill V. Board of Education of City of Camden, 102. V. School Board, 103, 108. Dillard v. Dillard, 1046, 1047. Billing V. Murray, 53. Dimmick v. Lockwood, 914. Dlngley v. BufEum, 337. D'.rcks V. Brant, 44. Disher V. Disher, 382. Divver v. McLaugblin, 554. Dix V. Atkins, 317. Dixon V. Clayville, 5G8. V. NiccoUs, 361. T. Parker, 536. Doane v. Badger, 112. Dob'bins v. Duquid, .358. Dobson V. Jones, 324. Dodd V. Burchell, 96. V. Holmes, 113. Dodge V. MoClintock, 126. V. Stacy, 848. V. Walley, 928. Dodson V. Hay, 223. Doe V. Allen, 16. V. Amey, 347. V. Applin, 171. V. Ashburner, 327. V. Barksdale, 821, 822. V. Bell, 347. V. Bingham, 959, 961. V. Brabant, 690. V. Browne, 336, 348. V. Burnsale, 138, 595. V. Burt, 21. V. Carleton, 712. V. Carter, 525. V. Chamberlaine, 335. V. Chaplin, 730. V. Clare, 327. V. Coins, 143, 170. V. Considine, 147. V. Dixon, 317. V. Ellis, 644. V. Eyre, 691. V. Fonnereau, 50.j, 707. V. Galloway, 928. V. Groves, 327. V. Gwinnell, 304. V. Harris, 1024. V. Hazell, 348. Doe V. Hull, 344. T. Laming, 615. V. Langdon, 432. V. Lock, 94, 895. T. Lyde, 706. V. McKaeg, 342. V. Martin, 275, 653, 1045. V. Masters, 478. V. Moore, 601, 677. Y. Morgan, 683, 723. V. Norvell, 601, 677. V. Oliver, 899, 1064, 1066. V. Palmer, 349. V. Parratt, 724. V. Pearson, 518. V. Perkes, 1024. V. Perryn, 606. V. Plowman, 432. V. Porter, 347. V. Richards, 336. V. Robinson, 188. V. Samuel, 347. V. Scott, 655. V. Seaton, 1065. V. Shepard, 654. V. Smaridge, 343. V. Smith, 327. V. Turner, 42. V. Underdowu, 1031. V. Wandlass, 372. V. Watt, 525. V. Webb, 643. V. Weller, 275, 1045. v. "Wilson, 382. V. Wood, 69, 347. Doe ex dem. Arden v. Thompson, 935. Doe ex dem. Barnes v. Provoost, 600, 606. Doe ex dem. Harrington v. Roe, 691. Doe ex dem. Phillip's Heirs v. Por- ter, 935. Doe ex dem. Poor v. Considine, 601, 606. Doe ex dem. Thompson v. Anderson, 172. Doherty v. Allman, 381. Dohoney v. Taylor, 1051. Dolph V. Hand, 859. v. White, 375. Donaldson v. Gibner, 1007. Donegan v. Donegau, 747. V. Hentz, 587. Donellan v. Read, 321. CASES CITED. [The figures refer to sections.] XXI Donohoo V. Lea, 420. Donovan v. Ward, S59. Dooley V. Stringham, 381. Doollttle V. Ivewis, 1041. Doran v. Piper, 1038. Dority v. Dunning, 107. Dorman v. Ames, Do. V. Bates Mfg. Co., 102. Dorr V. Jotinson, 706. V. Lovering, 606, 704. Dorrell v. Jolinson, 343. Dorris v. King, 40. V. Sullivan, 93. Dorrity v. Eapp, 114. Dougherty v. Matthews, 497. Douglas T. Ooonley, 103. Douglass V. Dickson, 245. Dougrey v. Topping, 295. Dovaston v. Payne, 117. Dow V. Doyle, 643. Dowell V. Tucker, 822. Downard v. GrofE, 48. Downer v. Smith, 900, 909. Downing v. Marshall, 678. V. Mayes, 826. Down shire v. Sandys, 387, 388. Doyle V. Lord, 97. V. Union Pac. R. Co., 355. Drake v. Brown, 659. V. Lacoe, 374. V. Wells, 126, 127. Dresser v. Missouri & I. R. Const. Co., 1076. Drew V. Peer, 126. Druid Park Heights Co. of Baltimore City V. Oettinger, 1046, 1047. Drummond v. Drummond, 691. Drummonds v. Richards, 555. Drury v. Drury, 290. V. Foster, 959. V. Hoiuen, 571. V. Kent, 67. Drusadow v. Wilde, 1050. Dubher v. Trollope, 628. Dubois V. Beaver, 17. V. Kelly, 30. Dubois Cemetery Co. v. Griffin, 1070. Duckett V. Crider, 822. Dudley v. Dudley, 271. V. Foote, 23, 34. Duffleld V. Eosenzweig, 69. Dugdale, In re, 518, 526. Duhring v. Duhring, 19, 247. Duke V. Harper, 321. Duke of Portland v. Topham, 1055. Dulaney v. Dulaney, 62. V. Willis, 585. Dulany v. Middleton, 677. Dumn V. Eothermel, 320. Dumpor's Case, 475, 493, 497, 525. Dunbar v. Woodcock, 682. Duncan v. City of Terre Haute, 269. V. Jaudon, 434, 435. V. Louisville, 567. V. Rodecker, 103. Duncklee v. Wetober, 358, 368. Duncomb v. Duncomb, 276, 467. Duncombe v. Felt, 387. Dundas v. Hitchcock, 295. Dunham v. Kirkpatrick, 49. V. Lamphere, 56. V. Osborn, 250, 251, 252. Dunklee v. Wilton R. Co., lOO, 909. Dunlap V. Bullard, 374, 991. Dunn V. Flood, 672. Dunnage v. White, 861. Dunnock v. Dunnock, 271. Dunscomb v. Dunscomb, 223. Dunseth v. Bank of United States, 304. Duppa V. Mayo, 207, 372, 468. Durando v. Durando, 249, 250. Durham & S. R. Co. v. Walker, 94, 895. Durour v. Motteux, 1031. Duryee v. City of New York, 408. Dutcher v. Culver, 74. Duval V. Bibb, 998. Dwinell v. Bliss, 923. Dyer v. City of St. Paul, 113. V. Dyer, 419, 421, 425. V. Eldridge, 835. V. Sanford, 93. Dyett V. Pendleton, 373. Eager v. Furnivall, 215. Eakin v. Brown, 350. Eames v. Salem & L. E. Co., 117. Earl V. De Hart, 119. Earle v. Artx)gast, 332, 356. T. Fiske, 1076. V. Wilson, 712. Earl of Portmore v. Taylor, 296. Earl of Salisbury y. Lambe, 053. XXll CASES CITED. [The figures refer to sections.] Easterbrooks v. Tillinghast, 417. Easterly v. Keney, 430. East Hampton y. Kirk, 813. East Jersey Iron Ck). v. Wright, 126. Eastman v. F'oster, 568. Eaton V. Wliitaker, 321. Eaves v. Vial, 415. Ecclesiastical Com'rs v. Kino, 107. Eckerson v. Crippen, 853. Eclipse Oil Co. v. Soutb Penn. Oil ■Co., 336. Edgerton v. Page, 373. Edmison v. Lowry, 373. Edmundson v. Montague, 295. Edmunds v. Povey, 579. Bdrington v. Harper, 287, 536. V. Newland, 538. Edson V. Munsell, 846. Edwards v. Bibb, 233. V. Freeman, 783. V. Hale, 344. V. Hammond, 600, 601, 677. V. New York & H. R. Co., 350. V. Thom, 1079, 1081. V. West, 420. Bffinger v. Hall, 18. V. Lewis, 836. Ege V. Ege, 360. Ehrman v. Mayer, 366. Bldredge v. Forrestal, 249, 250, 252. Eldred v. Meek, 70S, 704. Electric City Land & Improvement Co. V. West Ridge Coal Co., 903. Eleventh Ave., In re, 1069. Eliason v. Grove, 100. Elias V. Snowdon Slate Quarries Co., 384. Ellington v. Ellington, 840. Elliot V. Fitchburg R. Co., 53. Elliott, Ex parte, 1057. V. Carter, 564. V. Davis, 888. V. Merryman, 436, 438, 440, 441, 442. V. Rhett, 17, 97, 100. V. Sackett, 570. V. Sleeper, 892. V. Smith, 357. V. Stone, 343. Ellis V. Bassett, 97, 109. V. Blue Mountain Forest Ass'n, 96. V. Clark, 923. V. Ellis, 462. Ellis V. Page, 1010. V. Paige, 42, 321, 342. Ellithorpe v. Reidesil, 41. EUwood V. Plummer, 600, 669. Elmendorf v. Lockwood, 205, 299. Elmondorfe v. Carmlchael, 873. Elterman v. Heyman, 588. Elwes V. Maw, 21, 23, 29, 30, 34, 35, 36. Elwood V. Klock, 251, 269. Embury v. Sheldon, 600. Emerick v. Tavener, 196, 198, 357, 467. Emerson v. Harris, 232, 242. v. Proprietors of Land, 912. V. Simpson, 375. Emery v. Fowler, 935. V. Raleigh & G. R. Co., 55, 852. V. Wase, 287. Emmons v. Scudder, 346. Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 63. Engel V. Ayer, 86, 94, 144. Engle V. Haines, 571. Enos V. Sanger, 570. Epps V. Flowers, 859. Erck' V. Church, 830. Ehrman v. Mayer, 366. Erickson v. ,Raflferty, 560. Erskine v. North, 198. V. Townsend, 557. Eslave V. Lepretre, 245. Espley V. Wilkes, 102. Essex V. Atkins, 865. Esterly v. Keney, 430. Eureka Co. v. Edwards, 859. Evans v. Bicknell, 1067. V. Bidwell, 357. V. Brady, 145. V. Evans, 233, 1021. V. Hamrick, 374, 378. V. Rice, 585. V. Roanoke Sav. Bank, 579. V. Roberts, 41. V. Spurgin, 831. Evans' Lessee v. Webb, 298. Everett v. Edwards, 100. Everson v. McMulleu, 302. Ewing V. Burnet, 832, 842. V. Litchfield, 530, 531. V. Smith, 1054. Falconer, Succession of, 1080. Fallass V. Pierce, 1081. CASES CITED. [The figures refer to sections.] XXlll Fargason v. Edrington, 1076. Farlow v. Farlow, 1050. Farmer v. Kay, 299. Farmers' Bank v. Mutual Assur. Soc, 377. Farmers' Nat. Bank v. Gates, 570. Farrand. v. Gleason, 759. Farrar v. Winterton, 420. I'arrington v. Kimball, 377. Faulcon v. Johnston, 42. Faulk V. Dashiell, 1037. FauUuier v. Brockenbrough, 549. V. Davis, 1046, 1051. V. Faulkner, 294. Fawcett V. York & N. M. R. Co., 117. Fay, Petitioner, 63. V. Brewer, 386, 393, 557. V. Cheney, 557. V. Muzzey, 31. V. Wood, 1066. Feeney v. Howard, 939. Feital V. Middlesex R. Co., 351. Fellowes V. City of New Haven, 113. Fellows V. Miner, 463. Feltiplace v. Gorges, 865. Fenlason v. Rackliff, 34. Fentiman v. Smith, 126. Fenton v. Holloway, 861. Fentress v. Pocahontas Fowling Club, 932. Feoffees of Grammar School in Ips- wich V. Proprietors of Jaffrey's Neck Pasture, 96. Ferguson v. Cornish, 817. V. Franklin, 445. V. Spencer, 126. Ferrea v. Knipe, 53. Ferrell v. Ferrell, 849. Ferrin v. Errol, 435. Ferris v. Irving, 888. V. Quimby, 27. Ferry v. Liable, 1037. Ferson v. Dodge, 656. Festing v. Allen, 604, 636, 674. Ficklin v. Rixey, 302, 909. Fidler v. Lash, 1058. Field V. Mark, 96. V. Mills, 374. V. Snell, 913. Fifield V. Bank, 21. V. Farmers' Nat. Bank, 23. Filbert v. Hoff, 758. Filler v. Tyler, 285. Finch V. Ullman, 835. Findlay v. Smith, 266, 382, 384. Findley v. Findley, 294. Finlayson v. Finlayson, 939. Finley v. Simpson, 570. Firestone v. Firestone, 244, 271. First Baptist Church v. Witherell, 121. First Baptist Soc. v. Grant, 121. First Nat. Bank v. Beegle, 40. V. Honeyman, 1076. First Universalist Soc. v. Boland, 672. Fischer v. Johnson, 124, 126. Fish V. Dodge, 350. Fishburne v. Ferguson, 858. Fisher v. Dixon, 34. V. Fair, 86. V. Grimes, 249, 250. V. Lighthall, 355. v. Thirkell, 350, 351. V. Wister, 708. Fisk v. Cushman, 300. Fiske V. Tolman, 539, 570. Fitchburg Cotton Manufactory Corp. V. Melven, 365. Fitch V. Johnston, 903. Fitzgerald v. Anderson, 35. V. Standish, 1048. Fitzhugh V. Croghan, 906. V. Foote, 741. Fitzpatrick v. Boston & M. R. Co., 105. V. Fitzpatrick, 172. Flack v. AMllage of Green Island, 1070. Fladung v. Rose, 744. Flagg V. Flagg, 557. T. Geltmacher, 570. Flaherty v. Moran, 118. Flanary v. Kane, 420, 915, 928, 1066. Flaten v. Moorehead, 104. Fleischman v. Bowser, 949. Fletcher v. Ashburner, 18, 258. V. Ashley, 271. v. Evans, 124. V. Herring, 31. v. Holmes, 538. Flickinger v. Shaw, 126. Flower, In re, 1042. Floyd V. Floyd, 1008. V. Ricks, 38, 41. Fludice v. Lombe, 324. Pluker V. Georgia R. & Banking Co., 126. Flynn v. Flynn, 269. Fogarty v. Finlay, 1080. XXIV CASES CITED. [The figures refer to- sections.] Foley V. Burnell, 526. V. Wyeth, 113. Folsom V. Town of Underhill, 1070. Foote V. Burnet, 914. V. Gooch, 34. Foot V. New Haven & N. Co., 126. Forbes v. Balenseifer, 122, 126. V. Com., 106. V. Gracey, 49. V. Smitli, 223. Ford V. Cobb, 25, 26, 84. V. Harris, 105. V. Wilson, 826. Forsaith v. Clark, 143. Forsythe v. Price, 42, 45. Fosdick V. Gooding, 309. T. Schall, 25. Foster v. Browning, 122. V. Crenshaw, 564. y. Joiee, 140. V. Lord Rommey, 276. V. Marshall, 227. T. Peyser, 356, 368. V. Robinson, 45. V. Smith, 708. V. Trustees of AthenjEum, 421. V. Wright, 813. Foster's Appeal, 19, 1024. Fothergill v. Fothergill, 1054. Fowell y. Forest, 569. Fowler v. Duhme, 677. V. Shearer, 282, Fowlkes V. Wagner, 518. Fox V. Hall, 978. V. Mackreth, 456, 457, 458, 881. V. Rumery, 638. V. Thibault, 1080. V. Union Sugar Refinery, 102. Francis v. Cline, 421. V. Cockrell, 350. V. Schoellkopf, 118. Francks v. Whitaker, 639. Frank v. Frank, 923. Franklin v. Brown, 855. V. Osgood, 1033, 1047. Franks v. Cravens, 23, 34. V. Duchesse de Pienne, 863. V. Morris, 427, 428. Frazier v. Brown, 853. V. Frazier, 695, 696, 1052. Frederick v. Frederick, 172. Freeman v. Bellegarde, 932. V. Butters, 1033, 1035, Freeman v. Eacho, 1054 V. Foster, 909. V. Freeman, 522. v. Headley, 385. V. Prendergast, 1047. V. West, 325. French v. Inhabitants of Quincy, 520. V. Lord, 283. V. Old South Society, 672. V. Pearce, 835. V. Qniney, 151. V. Rollins, 196. V. Vradenburg, 564. V. Williams, 86, 87. French's Lessee v. Spencer, 10G6. Frewen v. Relfe, 740. Frey v. Clifford, 1076. Friedlander v. Ryder, 35. Fritsch v. Klausing, 1057. Frogmorton v. Holyday, 690. Frontin v. Small, 888. Fronty v. Godard, 1086. Frost V. Courtis, 829. V. Peacock, 263. Fry V. Payne, 773. V. Stowers, 835. Frye v. Bank of Illinois, 5-54. Fugate V. Pierce, 828. Fuhr V. Dean, 93, 125. Fuller V. Conrad, 238, 303, 312. Fulper V. Fulper, 744. Funk V. Halderman, 40. 61, 66, 70. V. McReynolds, 568. V. Voneida, 909. Fussell V. Gregg, 432. Gable v. Wetherholt, 357. Gaffleld v. Hapgood, 32, 35. Gaffney v. Hicks, 570. Gage V. Gage, 829. V. Ward, 245. Gaines v. Gaines, 244. V. Green Pond Iron Miu. Co., 265, 884. V. Poor, 903. Gainsford v. Dunn, 1036. Galbraith v. Gedge, 19, 247. Gallagher v. Dodge, 118. V. Shipley, 31. Gallego V. Attorney General, 464. Gambell y. Trippe, 1047. CASES CITED. [The flgurea refer to sections.] XXV Gamble's Succession, 121. Gannett v. Albree, 497. Gannon v. Hargadon, 119. Gano V. Vanderveer, 35S, 368. Garbut v. Hilton, 512, 514. Gardner v. Dering, 382. V. Early, lOSl. v. Gardner. 1005, 1008, 1021. V. Greene, 240. V. Keteltas, 358, 912. V. Newbiirgb. 53. ■Gardnier v. Guild, 657. Garland v. Garland, 32G. Garnons v. Knight, SS7. Garnsey v. Rogers, .j70. <5arrard v. Lord Lauderdale, 923. V. Tuck, 432. Garrett v. Christopher, 978. V. Clark, 348. V. Rainsey, 840. V. Weinberg, 829. Garrison v. Rudd, 86. Garth v. Cotton, 393. Garton y. Bates, 318. <5arwood v. New York Cent. & H. R. R. Co., 53. Gaskill V. Sine, 572. Gaskins v. Finks, 1049, 1054. Gatenby v. Morgan, 691. Gates v. Seibert, 699. Gatewood v. Gatewood, 223, 551. -Gaw r. HufEman, 301, 953. Gawtry v. Lelaud, 119. Gayheart v. Cornett, 833. Gazley v. Huber, 1070. Gearheart v. Thorp, 892. Geary v. Physic, 891. Gehlen v. Knorr, 53. •Geil V. Geil, 282. Gelatt V. Ridge, 888. General Electric Co. v. Transit Equip- ment Co., 21, 23. ■Genesee Chief v. Fitzhugh, 56. Genet v. Hunt, 1042. <}eorge v. Andrews, 570. V. Bates, 928. V. Putney, 357. V. Wood, 572. Georgia Southern R. Co. v. Reeves, 903. Gerber's Estate, In re, 704. Gerenger v. Summers, 848. Gerrish v. Clough, 813. i Gibbs V. Estey, 34. V. Marsh, 1047. Gibson V. Chouteau, 823, 1066. V. Crehore, 301. V. Eller, 542. V. Gibson, 294. V. Green, 539. V. Herriott, 1067. V. Holden, 375. Giffen v. Barr, 1080. Gifford V. Corrigna, 570. Gilbert v. Sanderson, 570. V. Wiltz, 642, Gildersleeve v. Hammond, 114. Giles V. Simonds, 122, 123, 127. Gilham v. Madison County, 119. Gill V. De Armant, 21, 23. V. Middleton, 350. Gillenwaters v. Campbell, 859. Gillespie v. Bailey, 859. V. Moon, 955. Gillis V. Brown, 249. V. Gillis, 1018. V. Nelson, 112. Gilman v. Bell, 1035. V. Hoare, 322. V. Philadelphia, 56. V. Wills, 48. Gilmer v. Mobile & M. R. Co., 903. Gilmore v. DriscoU, 113, 114, 852. V. Hamilton, 336. V. Severn, 172. Gindrat v. Montgomery Gas Light Co., 1050. Gish T. Moomaw, 910. Gittings V. Moale, 833. Given v. Hilton, 18. Glasgow V. Mathews, 1069, 1070. Glasscock v. Smither, 1022. Gleason v. Hamilton, 957. Gleeson v. Virginia Midland R. Co., 55. Glen Mfg. Co. v. Weston Lumber Co., 833. Glickauf v. JIaurer, 350. Glidden v. Bennett, 26. V. Blodgett, 657. Glover v. Stillson, 643, Gluckauf V. Reed, 1067. Goddard v. Winchell, 17. Godfrey v. Alton, 1069. V. Humphrey, 143. Godolphin v. Abingdon, 607. XXVI CASES CITED. [The figures refer to sections.] Godolphin v. Godolpliin, 1033. GofC V. Anderson, 226. Going V. Emery, 1044. Goldsborough v. Martin, 691, 698. Goodall V. Godfrey, 97. Goodburn v. Stevens, 247. Gooding v. Riley, 34. Goodman v. Hannibal & St. J. R. Co., 2S. Goodrich v. Burbank, 86. V. Jones, 31, 34. Goodright v. Cord went, 349. V. Cornish, 638, 712. V. Gator, 478. V. Glazier, 1029. V. Harwood, 1022. V. Parker, 601. Goodson V. Brothers, 833. Goodspeed v. Fuller, 939. Gpodtitle V. Bailey, 1066. V. Billington, 683. V. Holdfast, 529. V. Southern, 928. V. Way, 327. Goodwin y. Richardson, 557. Gorbell v. Davison, 604. Gordon v. Gordon, 712, 1038. V. Levi, 653. V. Whitlock, 1014, 1022. Gore V. Gibson, 861. V. Gore, 691, 698. V. Lawson, 823. V. Townsend, 269. ■Gorton v. Hadsell, 121. Gosling T. Warburton, 295. Gosson V. Ladd, 1047. Gott V. Gandy, 347. Gould V. Boston Duck Co., 53, 55. V. Carr, 826. V. Lamb, 147. v. Lynde, 939. V. Mather, 1048. V. 'Thompson, 335. Gourdin v. Deas, 606. Gove V. Gather, 285. Gowen v. Philadelphia Exchange Co., 124. Gower v. Eyre, 382. Gowlett V. Hansforth, 529. Grace M. E. Church v. Dobbins, 100. GraefC v. De Turk, 1035, 1036. Grafton v. Moir, 9-1, 895. Graham v. Burch, 1020. Graham v. Graham, 290, 773. V. Pierce, 757. V. Woodson, 333. Grandona v. Lovdal. 17. Grange v. Tining, 1060. Grant v. Lyman, 1050. v. Ramsey, 321. Grantham v. Hawley, 47. Graves v. Berdan, 113, 366. V. Dolphin, 525, 526. V. Smith, 115, 116. V. Trueblood, 220. V. Weld, 42, 43. Gray v. Bailey, 747. V. Blanchard, 406, 527. V. Lynch, 1033, 1048. V. McWilllams, 119. V. Rumrill, 1006. GrayWll v. Burgh, 287. Grayson v. Richards, 961, 984. Gre^trex v. Hayward, 853. Greber v. Kleekner, 334. Gree v. Rolle, 842. Green v. Armstrong, 40. V. Butler, 540. V. Green, 859. V. Hart, 565. V. Hewitt, 656. V. James, 378. V. King, 724. V. Liter, 840. V. Pennington, 823, 840, 842, 850, 932. V. Phillips, 22, 23, 27, 29, 34. V. Putnam, 49. V. Skipwith, 891. V. Stone, 570. Greenby v. Wilcocks, 906, 913. Greene v. Anglemire, 835. V. Cole, 393, 395, 396. Greenland v. Waddell, 18. Greenleaf v. Francis, 59. Greenough v. Turner, 892. v. Welles, 1046, 1047. Green's Case, 498. Greenwood v. Coleman, 859. Greer v. Greer, 858. V. Van Meter, 97, 100. Gregg V. Tesson, 841. Gregor v. Cady, 356. Gregory v. Frayser, 861. V. People, 1066. V. Winston, 271, 947. CASES CITED. [The figures refer to sections.] XXVU Greneley's Case, 227. Grenier v. Klein, 269. Grey v. Cuthbertson, 375, 378. Grice v. Scarborough, 909. Griffin v. Knisely, 327, 346. V. New Jersey Oil Co., 554. Griffith V. Spratley, 946. V. Thomson, 707. Grigby v. Cox, 865. Grigg V. Landis, 498. Grigsby v. Hair, 568. Grimley v. Davidson, 116. Grimmer t. Friedericb, 600. Grissom v. Hill, 151, 520. Grist V. Hodges, 912. Grogan v. Garrison, 294. Groves v. Cox, 691. Grubb V. Grubb, 49, 67. Grube v. Wells, 835. Guest V. Reynolds, 118. GufCey v. O'Reiley, 1067. Guild V. Richards, 498. Guion V. Anderson, 226, 227. Gulliver v. Wicket, 680. Gunning v. Carman, 205. Gunson v. Healy, 106. Guterman v. People, 63. Guthrie v. Jones, 29. V. Owen, 299. V. Russell, 914. (Jutman v. Buckler, 1048. Gwathmeys v. Ragland, 565. Gwynn v. Jones, 344. V. Schwartz, 835. G Wynne v. City of Cincinnati, 269. H Hadlock v. Bulfinch, 539. 1-Iaflick V. Stober, 35. I lagan v. Campbell, 813, 816. V. Varney, 202. Hagensick v. Castor, 915. Hagerty v. Lee, 94. Haggerty v. Lee, 895. Hague V. Wheeler, 61. Hahn v. Baker Lodge No. 47, 103. V. Hutchinson, 518, 526. Hail V. Reed, 61. Hale V. Hale, 1051. V. James, 303. V. McLea, 58. V. Plummer, 19. Hale V. Wilkinson, 891. Hales V. Van Berchen, 584 Haley v. Sheridan, 868. Hall V. Cazenove, 325. V. Dean, 909. V. Hall, 678, 701. V. La France Engine Co., 604. V. Lawrence, 67, 70. V. Lund, 96. V. McLeod, 96, 1069. V. Myers, 346. V. Priest, 643. V. Stephens, 745. V. Wallace, 335. V. Warren, 681, 690. Hallet V. Thompson, 526. Halligan v. Wade, 373. Halsey v. Goddard, 708. Ham V. Kendall, 25. Hamer v. Knowles, 114. Hamilton v. Feary, 355. T. Hughes, 259. V. Mound City Mut. Life Ins. Co., 1055. v. Nutt, 1078. Hamlett v. Hamlett, 172. Hamlin v. Hamlin, 259. V. Thomas, 1051. Hammond v. Port Royal & A. R. Co., 527. V. Schife, 93. V. Thompson, 365. V. Woodman, 112. Hampton v. Holman, 171. Hannan v. Osborn, 606. Hannay v. McEntire, 394. Hannon v. Hounihan, 300, 328. Hanrick v. Patrick, 1066. Hansen t. Meyer, 375. Hansford v. Elliott, 600. Hanson v. McCue, 853. Hard v. Wadham, 495. Hardaker v. Moorhouse, 1060. Hardenbergh v. Hardenbergh, 744. Harding v. Glyn, 1052. Hardin v. Hardin, 892. Hardy v. City of Memphis, 1070. V. Galloway, 516. Hargrave v. King, 371. Harkness v. Sears, 30, 34, 36. Harle v. McCoy, 341. Harlow v. Lake Superior Iron Co., 66, 70. XXVllI CASES CITED. [The figures refer to sections.] Harmon v. Harmon, 124. Harnett v. Maltland, 393, 395. Harper t. Little, 888. V. Vaughan, 203. Harrell v. Houston, 835. V. Miller, 40. Harrer v. Wallner, 747. Harrington v. Roe, 691. V. Watson, 366. Harris v. Carson, 44. V. Elliott, 421. V. Frank, 378. V. Frink, 42, 335. V. Harris, 240, 1024. V. Miller, 93. V. Ryding, 113. V. Scovel, 23, 34. V. Thomas, 387. Harrison v. Foreman, 600. V. Harrison, 462. V. Jackson, 888. V. Manson, 447. V. Middleton, 336, 347. V. Moore, 201. ' V. Simons, 892. Harrod v. Myers, 859. Hart V. Burch, 299. y. McCoUum, 299. V. Windsor, 322. Hartford v. Brady, 117. Hartford & S. Ore Co. v. Miller, 49. Hartung v. Witte, 835, 903. Hartwell v. Camman, 49. Harvey v. Alexander, 939. T. Brydges, 345. V. Walkers, 106. Harwood v. Benton, 909. Hassell v. Gowtliwaite, 809. Hastings v. Dickinson, 294. Hatch V. Palmer, 302. V. Straight, 783. Hatcher v. Fineaux, 839. Hatchett v. Hatchett, 1035, 1036. Hatfield v. Sneden, 233. V. Thorp, 1018. Hathaway v. Juneau, 928. Hatter v. Ash, 325. Haugh's Appeal, 59. Haven v. Grand Junction R. & Depot Co., 920. V. Wakefield, 327. Haverstock v. Sipe, 853. Hawes v. Humphrey, 1020. Hawke v. Buyart, 507. Hawkins v. Bohling, 677. V. Chapman, 147. V. Kent, 1049. V. Skeggs, 43, 46. Hawley v. Bradford, 269, 285. V. iClowes, 394. Hawlins v. Shippam, 108, 122, 126, 127. Haworth v. Herbert, 280. Hawpe V. Bumgardner, 39, 266. Haxall V. Shippen, 202. Hay V. Mayer, 230, 233. Hayden v. Stone, 1060, 1070. Hayes v. Bowman, 812. . V. Boylan, 924. V. Foorde, 612. V. Waldron, 53, 54. V. Waverly & P. R. Co., 902. Hayner v. Smith, 373. Haynes v. Boardman, 828. Hays V. Doane, 34. v. Wood, 423. Hayward v. Kinney, 194. Haywood v. Brunswick, etc., Build- ing Soc, 902. Hazeltine v. Case, 54. Hazelton v. Putnam, 17, 85. Hazlett V. Sinclair, 903. Head v. Bgerton, 577. Heald v. Heald, 647, 691, 698. Heard v. City of Brooklyn, 1070. V. Fairbanks, 41. V. Read, 1058. Hearle v. Greenbank, 223, 865. Hearne v. Lewis, 365. Heartt v. Kruger, 100, 108. Heath v. Randall, 122, 123, 127. V. Wliite, 222, 226. v. Williams, 53, 55. Heaton v. Prather, 1078. Heavilon v. Heavilon, 41. Hebbard v. Haughian, 939. Hecht V. Dettman, 41. Heed v. Ford, 259. Heflin v. Bingham, 38, 94, 125. Heid V. Vreeland, 570. Heil'bron v. Fowler Switch Canal Co., 53. Heintze v. Bentley, 554. Heisen v. Heisen, 298. Heiskell v. Trout, 417. Helm V. Wilson, 833. CASES CITED. [The figures refer to sections.] ZZIX Helwig T. Jordan, 350. Hemliauser v. Decker, 1037. Hemingway v. Scales, 7l>4, Hemphill v. Fljnn, 343. V. Giles, 347. V. Pry, 1038. Henderson v. Blackburn, 1044. Hendricks v. Stark, 116. Hendrix v. McBeth, 265. Hendrixon v. Cardwell, 44. Henkle v. Assurance Co., 055. Henrette v. Booth, 324. Henry v. Carson, 822. V. Davis, 536. V. Koch, 97. V. Baiman, 939. Hensley v. Brodie, 23, 34. Hephurn t. Dubois, 866. Herbert v. Wren, 310. Herlakenden's Case, 27, 34. Hermitage t. Tompkins, 322. Heron v. Hoffner, 1048. Hershey t. Metzger, 38. Herter v. Mullen, 346, 347. Heth V. Cocke, 223, 262, 263, 295, 301, 314. V. Richmond, 425. Hext V. Gill, 394. Hick V. Mors, 1020. Hickey v. Lake Shore & M. S. R. Co., 903. Hickman v. Link, 828. Hickok V. Hine, 56. Hicks T. Ward, 1035, 1037. Hiester v. Green, 586. Higginbotham v. Holme, 648. Higgins V. California Petroleum & Asphalt Co., 366. V. Carlton, 1018. T. Flemington Water Co., 53. Hilbourn v. Fogg, 357. Hildreth v. Googins, 96. V. Thompson, 298. Hiles V. Fisher, 744, 745, 747. Hill V. De Rochemont, 31. V. Hill, 122. v. Jones, 1055. V. Rockingham Bank, 678. T. Sewald, 25. V. Tupper, 87. Hilleary v. Hilleary, 298. Hills V. Metzenroth, 902. V. Simonds, 606, 647, 704. HinchlifEe v. Shea, 269, 283, 284. Hinde v. Charlton, 121. Hinkle v. Hinkle, 294. Hinkson v. Lees, 657. Hinton v. Hinton, 244. Hintze v. Thomas, 377. Hirth V. Graham, 40. Hitchens v. Hitchens, 249. Hitchins y, Basset, 1022. Hitner t. Ege, 332, 356. Hoagland y. Crum, 36.5. Hobson V. Hobson, 435. Hodges V. Shields, 357. Hodgkins v. Farrington, 126. Hodgson y. Gascoigne, 42. Hodsden v. Lloyd, 865. Hoeveler v. Fleming, 373. Hoce V. Baum, 349. Hoffman v. Armstrong, 17. V. Kuhn, 103, 115, 116. Hogan V. Barry, 902. V. Jaques, 415. Hoge V. Hoge, 1014. Hogsett V. Ellis, 341. Holbrook v. Chamber! in, 29. V. Young, 337. Holden v. Wells, 230. Holder y. Coates, 17. Holdfast V. Downing, 1018. Hole V. Rittenhouse, 840. HoUaday v. Marsh, 117. y. Willis, 540, 544. Holland v. Hodgson, 23, 26. V. Long, 848. Hollen y. Runder, 22. Hollingsworth v. Sherman, 826, 827. Hollis V. Burns, 348. T. Pool, 347. HolUster y. Shaw, 1050. Holme, V. Strautman, 928. Holmes v. Coghill, 1035. y. Goring, 103. V. Grant, 541. y. Seely, 96. V. Sellers, 968. y. Tremper, 30. Holt V. Hogan, 1055. y. Wilson, 744. Holt's Will, In re, 1018. Holtzman y. Douglas, 827. Holyoke Water Power Co. v. Lyman,. 64. Home y. Richards, 57, 832. XXX CASES CITED. [The figures refer to sections.] Honaker v. DufC, 526. Hood V. Haden, 1047, 1050. Hooker v. Hooker, 253, 276, 467. Hookham v. Cliambers, 863. Hooper v. Wilkinson, 119. Hooton V. Holt, 359. Hoover v. Neff, 1008. Hopewell Mills t. Taunton Sav. Bank, 28, 25. Hopkins v. Grimshaw, 672. V. Hopkins, 410, 674, 713. y. Ward, 432. V. Warner, 570. Hopkinson v. Rolt, 554. Hoppes V. Cheek, 912. Hopson V. Fowlkes, 747. Horn V. Baker, 35. V. Bennett, 568. V. Indianapolis Nat. Bank, 25. Horner v. Watson, 49. Horton v. Whitaker, 654. Horwitz V. Norris, 1053. Hotchkiss V. Middlekauf, 888. Hot Springs Lumber & Mfg. Co. v. Revercomb, 56. Houghton V. Hapgood, 223. House V. Burr, 317. V. Jackson, 249, 253. V. Metcalf, 350. Houston V. Laffee, 126. V. Smith, 249, 314. Houx V. Batteen, 892. V. Seat, 126. Hovenden v. Lord Annesley, 550. Hovey v. Nellis, 201. Howard v. Carpenter, 343, 1054. V. Carusi, 706. V. Duke of Norfolk, 696, 700, 716. V. Fessenden, 21. V. Harris, 536, 540, 541, 543, 550, 551, 556, 565. T. North, 928. V. Priest, 19, 247. V. Shaw, 341. Howard Ins. Co. v. Halsey, 572. Howbert v. Cauthorn, 597, 599, 600, 602, 604, 640. Howe V. Andrews, 60. V. Batchelder, 40. T. Hodge, 702. V. Morse, 600. Howell V. Barnes, 1048. V. Schenck, 42, 48. Howeth V. Anderson, 370. Hoxsey v. Hoxsey, 708. Hoxton V. Griffith, 719. Hoy V. Holt, 370. V. Sterrett, 53. V. Varner, 269, 283, 285, 301, 302, 314. Hoyt V. Jaques, 1037. Hrouska v. Janke, 892. Hubbard v. Hubbard, 498. Huck V. Flentye, 116. Hudson V. Barham, 446. V. Hudson, 1035. Hudson Iron Co. v. Stockbridge Iron Co., 955. HufC V. McCauley, 66, 93, 126. HufCman v. Starks, 321. Hugein V. Baseley, 945. Hughes T. Bingham, 1068. V. Edwards, 556. V. Tabb, 438. V. Williams, 443. Hughs V. Pickering, 826, 829. Huguenin v. Courtenay, 18. Hull V. Culver, 1038. Hull, etc., Ry., In re, 812, 813. Hulme V. Tenant, 865. Hulvey v. Hulvey, 299, 300, 828, 829. Hulwig V. Fenner, 1035. Humbertson v. Humbertson, 171. Humble V. Langston, 377. Hume V. Hord, 865. Humphrey v. Pegues, 64. Humphries v. Brogden, 21, 113. V. Cousins, 59. Hunnicutt v. Peyton, 840. Hunsinger v. Hofer, 1076. Hunt V. Bay State Iron Co., 23. V. Blackburn, 744. v. Comstock, 359. V. Cope, 373. V. Hunt, 839. V. Rhodes, 954. V. Rousmanler, 585, 954, 1033. V. Thompson, 375. V. Watkins, 203. V. Wickliffe, 840. Hunter v. Parker, 888. V. Spotswood, 831. V. Trustees of Village of Sandy Hill, 1068. V. Watson, 872. V. Whitworth, 218, 226. CASES CITED. [The figures refer to sections.] xxxi Huntington v. Asher, 66, 67. T. Parkhurst, 320. Hurd V. Curtis, 902. Hurst V. Dulaney, 302. V. Hurst, 691. Hussey v. Ryan, 351. Husted's Appeal, 303. Huston V. Cantril, 585. V. Cincinnati & Z. R. Co., 903. V. Clark, 22. 27. Hutchings v. Commercial Bank, 224. Hutchins v. Carleton, 892. V. Heywood, 430. HutcMnson v. Maxwell, 515, 516, 519, 523, 525, 526, 648. V. Rust, 924. Hutzler Bros. v. Phillips, 540. Huyck V. Andrews, 909. Hyatt V. Griffiths, 343. V. Wood, 343, 345. V. Zion, 284. Hyde v. Price, 863. I laege v. Bossieux, 302, 569. Idle V. Cooke, 653.' Idley V. Bowen, 1024. Iggulden V. May, 315, 317. Illinois Cent. R. Co. v. Illinois, 56. Inches v. Dickinson, 374. V. Hill, 600. Ingalls V. Hobbs, 355. V. St. Paul, M. & M. R. Co., 21. Ingals V. Plamondon, 116. Inge V. Murphy, 300. IngersoU v. Lewis, 826. T. Sergeant, 84. Inglj^« V. Trustees of Sailors' Snug Harbor, 463, 704. Ingraham v. Baldwin, 357. r. Meade, 1035. Ingram v. Ingram, 1047. V. Morris, 301. V. Pelham, 582. V. Threadgill, 57. Inhabitants of Deerfield v. Arms, 56, 814. Inhabitants of Milford v. Holbrook, 350. Inhabitants of West Roxbury v. Stod- dard, 60. Inhabitants of Winthrop v. Fairbanks, 94. Inhabitants of Worcester v. Eaton, 859. Innls V. Jackson, 287. Interstate Coal & Iron Co. v. Clint- wood Coal & Timber Co., 17, 49. Ireland v. Nichols, 498. Irvin V. Clark, 606. Irvine v. Greever, 421, 425. V. Irvine, 488, 859. V. Perry, 572. Irwin V. Covode, 384. V. Dixion, 1069. Isett V. Lucas, 568. Izon V. Gorton, 347. J Jack V. Martin, 119. Jackman v. Arlington Mills, 119, 350. Jackson v. Aspell, 299. V. Babcock, 126. V. Brown, 171. V. Brownson, 382. v. Burchin, 859. V. Carpenter, 859. V. Counts, 858. V. Davenport, 1041. V. Everett, 604. v. Farmer, 345. V. French, 467. V. Glaze, 951. V. Jansen, 1058. V. Johnson, 213, 214, 218, 226, 822. V. Kisselbrack, 827. V. Ligon, 1051. V. The Magnolia, 56. V. Manicus, 196. V. Matsdorf, 783. V. Merrill, 143. V. Miller, 335. V. Morse, 345. V. Noble, 691. y. Phillips, 703. V. Phipps, 923. V. Pleasanton, 428. V. Richards, 198. V. Root, 892. V. Rowland, 357. V. Schoonmaker, 325, 841. V. Sears, 839. XXXll CASES CITED. [The figures refer to sections.] Jackson v. Stackhouse, .538. V. Sublett, 659. V. Topping, 475. T. A'anderheyden, 299. T. Yinceut, 198. V. Walker, 430. V. Walton, 21. T. Wells, 143. V. Wheeler, 467. V. Woodruff, 840. Jackson ex dem. Welden v. Harrison, 371. Jacob V. Howard, 659. James v. Cochrane, 555. V. Fields, 262. V. Kibler, 317, 318. V. Oades, 536. V. Plant, 107. V. Upton, 302. Jameson v. Rixey. 81. James River & K. Co. v. Thompson, 64. Jamison v. Glascock, 447. Janes v. Jenkins, 97, 909. Jarnigan v. Malrs, 102. Jarrett v. Stevens, 830. Jay V. Michael, 99. Jee V. Audley, 698. Jeffer v. Gifford, 395. Jefferies v. Allen, 263, 295. Jefferson v. Jefferson, 395. Jeffrey v. Walton, 891. Jenkins v. Fovpler, 118. V. Harrison, 287. V. Hopkins, 909. V. Jenkins, 892. V. Lykes, 122, 123, 125, 126, 127. V. JlcCoy, 42. V. Rhodes, 271. Jenks V. Cohvell, 25. V. Horton, 205. V. Williams, 118. Jenner v. Morgan, 207, 365. Jennings v. Moore, 568. Jermyn v. Arscot, 711. Jesser v. Armentrout, 421. Jesson V. Wright, 615, 629. Jiggetts V. Davis, 171. John Hancock Mut. Life In«. Co. v. Patterson, 100. Johns V. Fritchey, 861. Johnson v. Archibald, 932. V. Carpenter, 567. V. Dixon, 332, 356. Johnson v. Hannahan, 345. V. Hiibbell,,1019. V. Johnson, 382. V. Medlicott, 861. V. Rice, 573. V. Sherman, 377. V. Shields, 298. V. Skillman, 126. V. Smith, 205. V. Touchet, 1054. V. Van Velsor, 295. V. Warren, 516, 527. V. Williams, 978. V. Wiseman, 32. V. Zink, 571. Johnston v. Case, 827. V. Jones, 814. V. Smith, 283. Johnston's Estate, In re, 699, 703. Jones V. Bragg, 285. V. Brewer, 306. V. Carter, 478, 780. V. Clifton, 1035, 1043. V. Comer, 556. V. Devore, 269. V. Habersham, 859. V. Hobson, 1048. V. Hughes, 292. V. Jones, 224, 335, 394, 805, 923. V. Marcy, 321. V. Mitchell, 1031. V. Morgan, 633. V. New Tork Guaranty & I. Co., 554. V. Parker, 378. V. Powell, 295. V. Robbins, 926. V. Roe, 715. V. Thorn, 427. V. Towne, 121. V. Van Bochove, 105. r. Westcomb, 690. v. AVillis, 348. Jordan v, Buena Vista Co., 587. V. VA-e, 909. V. Land, 849. V. Richmond Home for Ladies, 038. V. Sayre, 538. Josslyn V. McCabe, 35. Joynes v. Statham, ri36. Julian V. Boston, C. F. & X. B. R. Co., 29.1. Jull V. Jacobs, 038. CASES CITED. [Tbe figures refer to sections.] XXXlll Jumel V. Jumel, 572. Junk V. Canon, 259. Jupp V. Buckwell, 744. Jutte V. Hughes, 119. Kabley v. Worcester Gas Co., 327. Kalley v. Baker, 888. Kane v. Bloodgood, 831. V. Mackin, 923. V. Vandenburgh, 387. KaufEman v. Griesemer, 119. Kay V. Duchesse de Pienne, 863. Kea V. Robeson, 928. Kearney v. Kearney, 202. V. Macomb, 540, 866. Keating v. City of Cincinnati, 113. V. Condon, 374. Y. Springer, 97, 118. Keats V. Hugo, 97, 120, 853. Keckley v. Union Bank, 862. Keecb v. Sanford, 424, 426, 427. Keefer v. Scliwartz, 1050. Keegan v. Cox, 859. Keeler v. Keeler, 27, 34. Kehr v. Snyder, 814. Keim y. O'Reilly, 1047. Keller v. Ashford, 570. Kelley v. Mains, 708. V. Whitney, 567. Kellogg V. Dickinson, 121. V. Malin, 906, 909. Kelly V. Dutch Church of Schenec- tady, 358. V. Lehigh Min. & Mfg. Co., 580. V. McGrath, 271. V. Owen, 270. Kelsey v. Reuier, 909. Kelso's Appeal, 295. Kemp V. Com., 823. V. Derrett, 347. Kempe's Case, 711. Kendall v. Hathaway, 26. V. Honey, 313. Kennedy v. Kingston, 1046, 10.j2. V. Owen, 903. Kenuer v. American Contract Co., 496. Kent V. Mahaffey, 1024. V. Morrison, 1037. V. Waite, 94. T. Welch, 368. Kenyon v. Kenyon, 249. MiNOB & W.Rbal Pbop.— c Keppell V. Bailey, 903. Kerfoot v. Cronin, 1076. Kerns t. Swope, 1079. Kerr v. Day, 420. V. Freeman, 978. V. Kingsbury, 35. V. Lunsford, 1006. V. "Verner, 643. Kerrison v. Smith, 126. Kesner v. Trigg, 1076. Ketchum v. Walsworth, 747. Key T. Hughes, 450. V. Weathersbee, 638. Keyes v. Wood, 567. Kidney v. Coussmaker, 648. Kier v. Peterson, 61, 265. Kilburn v. Adams, 850, 851, 852. Kile V. Giebner, 29. Kille V. Ege, 924. Killmore v. Howlett, 40. Kilpatrick v. Barron, 1051. Kimball v. Cochecho R. R., 96. V. Ladd, 849. V. Rowland, 349. V. Sattley, 40. V. Second Congregational Parish, 121. Kincaid v. McGowan, 49. Kiucaid's Appeal, 121. King V. Adderley, 325. V. Fowler, 48. V. Fraser, 1081. V. King, 539. V. Lord Tarborough, 812. V. Miller, 379, 382. V. Murphy, 105. V. Norfolk & W. R. Co., 469. V. Pedley, 350. V. Smith, 812. T. Wells, 94. V. Wilson, 317. Kingman v. Harmon, 677. Kingsbury v. Collins, 42. Kingsley v. Holbrook, 40. V. McFarland, 21. Kinlyside v. Thornton, 303, 396. Kinnalrd v. Miller, 704. Kinney v. Beverley, 826. Kinsolving v. Pierce, 299. Kirk V. Hamilton, 1067. y. Lynd, 867. Kirkman v. Jervis, 324. Kirkudbright v. Kirkudbright, 783. xxxiv CASES CITED. [The figures refer to sections.] Kirtland v. Passett, 341. Kissam v. Dierkes, 1059. Kister v. Reeser, 94, 895. Kitchen v. Pridgen, 347. Kittaning Academy v. Brown, 823. Kittredge v. Woods, 31, 38, 41. Kitty V. Fitzliugh, 831. Kitzmiller v. Van Rensselaer, 285. Kivett V. McKeitlian, 126. Kleeman v. Frisbie, 567. Kline v. Kline, 271. Klinilj; v. Price, 536. Kliukener v. School Directors of Mc- Keesport, 1068. Knapp V. Knapp, 1024. Kneller v. Lang, 833. Knight V. Earl of Plymouth, 443, 1049. V. Ellis, 143, 170. V. Indiana Coal & Iron Co., 336. V. Watts, 450. V. Tarborough, 1049. V. Xarbrough, 1035, 1036, 1052. Koen V. Bartlett, 384. Koiner v. Rankin, 840. Kramer v. Carter, 912. V. Cook, 317. Krider v. Ramsay, 374. Kuecken v. Voltz, 94. Kutz V. McCune, 909. Lackey v. Holbrook, 345. Lacy V. Kynaston, 995. V. Pixler, 859. Ladd V. City of Boston, 93, 902. Lade v. Halford, 711. Ladue v. Detroit & JI. R. Co., 5.54. Lady Ann Fry's Case, 276. Lafayette & I. R. Co. v. Adams, 850, 354. Lafferty v. Milligan, 909. La Frombois v. Jackson, 832. Iiagorio v. Dozier, 969. Laguerenne v. Dougherty, 347. Lamar v. Hale, 939. V. Miles, 29. V. Scott, 299. Lamb V. Crosland, 844, 846. Lambe v. Manning, 126. Lambert v. Thwaites, 1046, 1052. Lambert's Lessee v. Paine, 143. Lampet's Case, 473, 505. Lampman v. Mills, 97. Lamson v. Clarkson, 357. Lancashire v. Mason, 357. Landon v. Piatt, 26. Land V. Shipp, 269, 283, 285, 289, 295, 302. Lane v. Debenham, 1048. V. Dighton, 425. V. King, 48. V. Tidball, 545. Lang V. Waring, 19. Langley v. Chapin, 527. Langmaid v. Higgins, 934. Lang's Heirs v. Waring, 422. Lanier v. Booth, 852. Lanigan v. Kille, 322, 358. Lansdowne v. Lansdowne, 954. Lansing Iron & Engine Works v Walker, 21. Lansing v. Smith, 56. Lantz V. Massie, 601. Lapere v. Luckey, 17. Larrowe v. Beam, 304. Larue v. F^rrem Hotel Co., 350. Lasala v. Holbrook, 853. Lassell V. Reed, 31. Lathrop v. Clewis, 76. Lattimer v. Livermore, 118. Laughlin v. Fream, 892. Laughran v. Smith, 347. Laughter's Case, 503. Lawes v. Bennett, 420. Law- Guarantee & Trust Co. v. Jones, 1O50. Lawrence v. Brown, 295. V. Jenkins, 115. V. Montgomery, 913. V. Smith, 698. V. Springer, 126. Lawrence's Estate, In re, 691, 69<5, 698, 1037, 1042. Lawson V. Morrison, 1019, 1021, 1024, 1025, 1028, 1029. V. Morton, 259, 309. Lawton v. Lawton, 36. V. Salmon, 36. V. Ward, 87. Lea V. Polk County Copper Co., 1073. Leach v. Duvall, 271. V. Forney, 287. V. Jay, 131. Leake v. Robinson, 703, 704. Lean v. Schutz, 186, 863. CASES CITED. [The figures refer to sections.] XXXV Ijeamed v. Cutler, 269, 283. Liearoyd v. Godfrey, 350. Leavitt v. Lamprey, 250, 251, 299, 313, 892. y. Leavitt, 335. Lee V. Alston, 382. V. Bank of United States, 519, 865. V. Bumgardner, 49. V. Gansel, 324. V. Lee, 1005. T. Lindell, 246. T. Monroe, 943. V. iluggeridge, 1054. V. Patillo, 447. V. Rlsdon, 33. V. Simpson, 1050. Leeds v. Wakefield, 1059. Lefebvre's Estate, In re, 420. Leflingwell v. Warren, 820. Leggett V. Doremus, 1060. Lehigh Valley R. Co. v. McFarlan, 844, 849. Lehndorf v. Cope, 194. Leigh V. Dickesou, 759. Leiper's Appeal, 420. Letter v. Pike, 378. Leland v. Adams, 143. Leland's Appeal, 287. Leman v. Whitley, 415. Lemayne v. Stanley, 1015. T^nch V. Lench, 425. Lenfers v. Henke, 265, 310. Lennox v. Hendricks, 835. Leonard T.' Burr, 691. V. Clough, 23, 34. V. Leonard, 96, 303, 848. V. St. John, 853. Leonard Lovie's Case, 651, 653. Leslie V. Pound, 330. Lester v. Garland, 325. Letts V. Kessler, 17, 118. Levy V. Yerga, 835. Lewis V. Apperson, 269, 295, 302. V. Christian, 56. V. City of Portland, 1069. V. Intendant & Town Council of Gainesville, 63. V. Jones, 31. V. Klotz, 48. V. Lee, 863. V. McGee, 872. V. Ocean Nav. & Pier Co., 33. Lewis y. Rosier, 34. V. Smith, 302. y. Stein, 54. Lide v. Hadley, 87. Liford's Case, 40, 42, 66, 96. Llggins V. Inge, 108, 122. Lilllbridge v. Lackawanna Coal Co., 17, 49. Lincoln y. Burrage, 903. Lindeman r. Lindsey, 105, 108. Lindley y. O'Reilly, 1044. Lindsay y. Springer, 835. y. Winona & St. P. R. Co., 42. Lines y. Darden, 1036. Linkenhoker v. Graybill, 96, 103. Linthicum y. Ray, 87. Linton v. Brown, 923. v. Hart, 84, 366. V. Laycock, 600. Lionherger y. Baker, 1076. Lipscomb v. McClellan, 840. Lipsky v. Borgmann, 21. List y. Cotts, 49. y. Hornbrook, 116. Litchfield v. Preston, 570, 571. Literary Fund y. Dawson, 463, 704. Little y. Bennett, 1053. y. Heaton, 478. y. Pearson, 341. y. Poole, 940. Littlefleld v. Crocker, 283. y. Getchell, 913. Little's Appeal, 677. Livingston y. McDonald, 119, 550. V. Story, 550. Lloyd y. Brantou, 513. Lock y. Fulford, 571. Locke v. Frasher, 357. y. Furze, 358. V. James, 1021. Lockwood y. Ewer, 546. y. Sturdevant, 906. Lockwood Co. v. Lawrence, 54, 540. Lockyer v. Savage, 648. Loddlngton v. Kime, 138, 140, 595, 639. Loebenthal v. Raleigh, 1037. Logan V. Gardner, 859. v. Moulder, 913. V. Simmons, 271. Lomas y. Wright, 690. London, etc., R. Co. y. Gomm, 902. XXXVl CASES CITED. [The figures refer to sections.] Long V. Blackall, 178, 6&5, 696, 697, 700. V. Buchanan, 122, 123, 127. V. Fitzsimmons, 332, 3d6. Longford v. Eyre, 1049. Longhead v. Phelps, 703. Loomis V. McClintock, 1051. Lord V. Wormwood, 117. Lord Koss v. Whitman, 384. Lord Vaux's Case, 270. Loring v. Blake, 699. V. Marsh, 1033. V. Norton, 932. Loughran v. Ross, 35. Louisville Banking Co. v. Leonard, 554. Louisville & F. R. Co. v. Ballard, 117. Louisville & N. R. Co. v. Covington, 105. V. Koeble, 86. V. Quinn, 108. Lounsberry v. Snyder, 373. Love V. Shields, 824. Lovelace's Case, 920. Lovell V. Cragin, 568. V. Frost, 826. Lovering v. Lovering, 647. I-«w V. Burron, 697. V. Elwell, 345. I.-owry V. Fisher, 284. V. Muldrow, 704. Loyd V. Loyd, 691, 695, 696, 698, 699, 704. Lucas V. Brooks, 357. Lucy V. Tennessee & C. R. Co., 830. Lukins v. Aird, 950. Lumbard v. Aldrich, 928. Lusk V. Pelter, 832. Lutterloh v. Town of Cedar Keys, 1070. Luxtord V. Cheeke, 276, 656. Lybe's Appeal, 58, 50. Lyman v. Hale, 17. Lynch v. Allen, 815. Ijynchburgh Traction Co. v. Guill. 1069. Lynchburg Perpetual Building Ass'n V. Fellers, 572. Lynn's Appeal, 384. Lyon V. Cunningham, 335. V. Parker, 902. Lysle V. Williams, 325. Lytle V. Pope, 555. n/i Mabary v. Dollarhide, 826. McAlester v. Landers, 338. McAllister v. Devane, 104. McArthur v. Scott, 677, 701. Macaulay v. Dismal Swamp Land Co., 266, 382. V. Smith, 995. McBryde v. Wilkinson, 1054. McCabe v. Bellows, 285, 301. V. Bruere, 835. V. Swap, 302. McCallum v. Germantown Water Co., o4. MeCall V. Walter, 29. MeCamant v. Nuckolls, 1035. McCarthy v. Nicrosi, 93. McCauley v. Grimes, 245. McClanachan v. Siter, 579. MeClanahan v. Porter, 303, 304. McCIeary v. Ellis, 519, 526. McClenahan v. Gwynn, 368. McClintic v. Wise, 568, 369. McClintock' s Appeal, 38. McClure v. Harris, 245. V. Faben, 946. v. Roman, 554. McCounel v. Kibbe, 113. McConnell v. Blood, 27, 34. McCord V. Oakland Quicksilver Min. Co., 384. McCormick v. Horan, 55. V. Taylor, 306. McCorry v. King, 213, 214, 227. McCraney v. MeCraney, 212, 269. McCrea v. Marsh, 122, 126. V. Purmort, 939. Maccubbin v. Cromwell, 264. McCullough V. Irvine, 36. V. Wall, 56, 37, 816. McDaniel v. Cummings, 119. V. McDaniel, 303. McDaniels v. Colvin, 554. McDevitt V. Lambert, 348. Macdonough v. Starbird, 29. McDowell V. Steele, 948. McFadden v. Allen, 25. V. Haynes c& De Witt Ice Co., 60. McFarland v. Chase, 342. V. Stone, 822. McFarlane v. Williams, 74. McGary v. Hastings, 912. CASES CITED. [The figures refer to sections.] XXXVll McGee V. "Walker, 41. McGehee v. McGehee, 303. McGeuness v. Adriatic Mills, 54. JIcGeorge v. Hoffman, 849. ilcGettigan v. Potts, 114. McGinniss v. Fernandes, 42. McGinn v. Tobey, 1079. McGlennery v. Miller, 866. McGrath v. Boston, 327. V. "Wallace, 826. McGreevy v. McGrath, 690. McGregor v. Brown, 379. McGrew t. Harmon, 912. Machir v. Funk, 1050, 1051. Melnerney v. Beck, 872. Mcintosh V. Lown, 370. Mclver v. Bastbrook. 35. Mack V. Patchin, 358, 308. ilcKaig V. McKaig, 300. Mackay v. Bloodgood, 920. McKeage v. Hanover Fire Ins. Co. 23. McKean v. Brown, 212. McKenzie v. Childers, 902. V. Elliott, 848. McKeown v. McKeown, 421. Mackey t. Hyde Park, 1069. McKildoe t. Darracott, 498. McKissick v. Pickle, 475. Mackreth v. Symmons, 586. McLaughlin's Will, In re, 1005. Macleay, In re, 518. McLeery t. McLeery, 2.50. McLendon v. Horton, 194. McLoud V. Roberts, 504. McMabon v. Gray, 299. V. "V\Mlliams, 902. McManus v. Cooke. 126. MeMasters v. Negley, 233. McMath V. Levy, 30. McMillan v. Cox, 1037. V. Cronin, 112. V. Solomon, 21. McMorris v. "Webb, 859. McMuUin v. Erwin, 834. McMurray v. Dixon, 835, 957. V. McMurray, 8.10. McNab V. Robertson, 58. McNeely v. Langan, 828, 829. V. McNeely, 601. McNeil V. Ames, 374. McNish V. Pope. 244. McPhers>on v. McPherson, 357. McPherson y. Reese, 920. V. Rollins, 1078. McKae v. Farrow, 1048. iloRea V. Central Nat. Bank, 23, 26, 34. McTavish v. Carroll, 88. Madden v. Madden, 682. Maddox v. Maddox, 509, 512, 514. Madigan v. McCarthy, 34. Madison v. Larmon, 699. Madoc v. Jackson, 653. Magee v. Mellon, 295. V. Young, 269. Maggort V. Hausbarger, 370. Magie v. Reynolds, 565. Magnolia, The, 56. Magor V. Chadwick, 120. Magruder v. Peter, 556. Magwire v. Riggin, 269. Mahan v. Brown, 118. Mahoney v. Young, 267. Mahoning County Com'rs v. Young, 1070. Major V. Ficklin, 955. v. Lansley, 8G5. Maiden's Case, 882. Maline v. Keighley, 1052. Jlallett V. Simpson, 869. Malloney v. Iloran, 284. Malone v. Hobbs, 1024. v. McLaurin, 214, 220. Maloney v. Kennedy, 224. Mandelbaum v. McDonell, 518. Mandel v. McClave, 269, 283. Mander v. Falcke, 902. Manikee v. Beard, 271. Mann v. Jackson, 511. Manning v. Laboree, 250. Manning's Case, 716. Manuel v. Wvm, 868. Manwaring v. Jenison, 26, 34. Marburg v. Cole, 744, 745. Marines v. Goblet, 1067. Markham v. Merrett, 19, 247. Markland v. Crump, 913. Marlborough v. Godolphin, 1033. Marsellis v. Thalhimer, 226. Marsh v. Brace, 374. v. Lee, 579. v. Love, 1051. V. Whitemore, 456, 459. Marshall v. Heard, 350. v. Mellon, 265. xxxviii CASES CITED. [The figures refer to sections.] Marsliall v. Moseley, 365. V. Rutton, 863. Marsteller v. McLean, 821. llarston v. Hobbs, 900. Mai-tln V. Blanchett, 321. V. Drinan, 903. V. Dwelly, 287. V. Jett, 119. V. Knapp, 41. V. Martin, 365, 378. V. Merritt, 287. V. Thayer, 1005, 1006. V. White, 952. Martyn v. Mowlin, 569. Marvin v. Brewster Iron Min. Co., 49, 66, 113, 114. V. Smith, 295. Mason v. Mason, 283. V. Wheeler, 1050. Massie t. Heiskell, 831. V. Watts, 465. Massot V. Moses, 49, 66, 69. Masters v. Masters, 1014. Masterson v. Pullen, 420. Masury v. Southworth, 375. Mathews v. Ferrea, 823. Mathis V. Hammond, 690. ilatthews v. McDade, 1050. :Mattocli;s V. Stearns, 212. Matts V. Hawkins, 116. Maule V. Ashmead, 368. Maundrell v. Maundrell, 275, 653, 1045. Mauzy v. Sallars, 425. May V. Joynes, 463. T. May, 313. JIayburry v. Brien, 245, 246. Mayer y. Wilkins, 951. Mayfair Property Co. v. Johnston, 116. Mayhew v. Hardesty, 376. Mayho v. Buckhurst, 3T5, 901, 903. Mayor of Congleton v. Pattison, 375, 901, 903. Maywood Co. v. Maywood, 102. Maywood v. Logan, 355. Meacham v. Bunting, 212, 224. Mead v. Haynes, 812. V. Merritt, 465. Meagher v. Hayes, 21, 25. Meakings v. Cromwell, 1048. Mebane v. Mebane, 525. V. Patrick, 846. Mechelen v. Wallace, 323. Medley v. Medley, 233, 691. Meeker v. Breintnall, 1050. Meeks v. Thompson, 442. Meikel v. Borders, 978. Melizet's Appeal, 269. Mellor V. Spateman, 854, 855. Melius V. Snowman, 227. Meltram v. Devon, 712. Melvin v. Proprietors of Locks & Ca- nals, 227. V. Whiting, 846. Memmert v. McKeen, 909. Mendenhall v. Klinck, 125. Merced Min. Co. v. Boggs, 49. Mercer v. Kelso, 1005. T. Woodgate, 1068. Merchants' Bank v. Ballou, 435. V. Campbell, 943. V. Thomson, 302. Merchants' Nat. Bank v. Stanton, 25. Meredith v. Frank, 99, 100. V. Joans, 409. Meriwether v. Garrett, 785. Merriam v. Miles, 570. V. Simonds, 678, 691. Merrifleld v. City of Worcester, 54. V. 'Cobleigh, 488. V. Lombard, 54. Merrills v. Swift, 923. Merriman v. Cover, 506. V. Moore, 539, 570. Merritt v. Brinkerhoff, 53. V. Closson, 368. V. Scott, 202. Merryman v. Bourne, 198, 357, 467. V. Hoover, 432. Messinger's Appeal, 848. Metcalfe v. McCutchen, 835. Metcalf V. Hart, 122, 124, 126. Methodist Episcopal Church v. Jaques, 1054. Metropolitan R. Co. v. Fowler, 16. Meux V. Jacobs, 34. Meyers v. Schemp, 34. Michael v. Foil, 939. Michigan Mut Life Ins. Co. v. Cronk, 21, 34. Michoud v. Girod, 881. Middlebrook v. Corwin, 31. Middleton v. Johns, S26. Mifflin's Appeal, 1042. Mildmay's Case, 525, 649. CASES CITED. [The figures refer to sections.] XXXIX JMiles V. Harford, 703. ililhoUen v. Rice, 1052. Mill y. Bodley, 828. Milledge v. Lamar, 233. inner V. Beverly, 306. V. Black Eocli Springs Imp. Co., 58, 59. V. BroAvn, 93. V. Bumgardner, 822. V. Cheney, 42. V. Emans, 658. V. Holcomtie, 451, 452, 453. Y. Moore, 708. V. Morris, 370. V. New York, 64. V. Pence, 299. V. Shackleford, 343. V. State, 122. V. Thompson, 570. V. Wills, 394. Miller's Estate, In re, 706. Miller's Will, In re, 690. Milliken v. Welliver, 638. Mills V. Harris, 420. T. Penny, 835. V. St. Clair County, 63. Mines, Case of, 49. Minneapolis Co-operative Co. v. Wil- liamson, 366. Minneapolis Mill Co. v. Minneapolis & St. L. R. Co., 126. Minneapolis W. R. Co. v. Minneapolis & St. L. Ry. Co., 126. Minor v. Hill, 568. Mlnot V. Prescott, 1038. Mississippi Mills Co. v. Smith, 54. Mitchell V. Burnham, 1076. V. City of Rome, 852, 853. V. Johnson, 1052. V. Ladew, 565, 568. V. Leavitt, 516, 527. V. Moore, 224. V. Reynolds, 504. v. Ryan, 214, 923. V. Seipel, 100. V. Warner, 913. Mizzell V. MeGowan, 119. Moelle V. Sherwood, 978. Monaghan v. Memphis Pair & Exposi- tion Co., 105. Monks V. Dykes, 324. Monmouth Park Ass'n v. Wallis Iron Works, 529. Monongahela Bridge Co. v. Kirk, 56. Montague v. Allen, 1005. V. Jeoffreys, 1020. Montgomery v. Trustees of Slasouic Hall in City of Augusta, 116. Monypenny v. Dering, 702. Moodie v. Reid, 1028. Moody V. King, 233. V. McClelland, 113, 114. V. Wright, 946. Mooers v. Wait, 382. Moon V. Stone, 172. Moor V. Veazie, 56. Moore v. Boyd, 347. V. Brooks, 615. V. City of New York, 269, 283. V. Com., 429. V. Crose, 87. V. Darby, 220, 227, 228, 269. v. Esty, 249. y. Frankenfleld, 358. V. I^rost, 299. V. Greene, 826. V. Hazleton, 923. V. Johnston, 906. V. Jordan, 939. V. Lyons, 600. V. Merrill, 913. V. Mustoe, 421. V. Rawson, 105. V. Simonson, 205. V. Smaw, 49. V. Tisdale, 295. V. Vail, 912. V. Waller, 306. V. Weber, 355, 356, 358, 368. Moores v. Moores, 1038. Morehead v. Watkyns, 348. More's Case, 525. Morgan v. Bissell, 327. V. Gronow, 1042. V. Haley, 912, 913. V. Meuth, 107. V. Morgan, 223. Morley v. Kennoldson, 509. Morris v. Bacon, 565. V. Caudle, 870. v. French, 25. V. McCarty, 744. V. Owen, 1085, 1046, 1052. V. Peay, 321. V. Stephenson, 287. Morris' Cotton, 155. CASES CITED. [The figures refer to sections.] Morrison v. Marquardt, 118. Morse v. Blood, 518. V. Copeland, 93, 108, 122, 127. y. Crawford, 1006. V. Garner, 375. V. Martin, 1054. Mortlock V. Buller, 287. Morton v. Notle, 269, 284. V. Tewart, 719. Mory V. Michael, 1050. Mostly T. Mosby, 782, 1047. Moseley's Trusts, In re, 704. Moses V. Loomis, 496, 498. Mosher v. Moslier, 246, 267. Moss V. Crallimore, 557. ilotley V. Motley, 295. Mott V. Ackerman, 1051. V. Palmer, 21, 25, 34. Mouerby's Case, 1021. Moule V. Garrett, 377. Moulton V. Robinson, 74. Mountain v. Bennet, 861. Mountjoy's Case, 66, 70. Mowry v. City of Providence, 1068. Mudd V. Mullican, 201. Muldrow V. Fox, 1048. MuUany v. Mullany, 220, 223, 224. Mullen V. Sti-lcker, 97, 853. Muller V. Bayly, 865. V. Landa, 57. Mullreed v. Clark, 706. Mulry V. Norton, 814, 816. JIumford v. Brown, 759. V. Whitney,- 121, 126. Munger v. Tonawanda R. Co., 117. Murdock v. Chapman, 932. V. Gifford, 26. V. Murdock, 226. Murly V. McDermott, 116. Murphy's Estate, In re, 1048. Marphy v. "Welch, 848. ^U^rray v. Albertson, 355. ^'. Barlee, 865. V. Cherrington, 317. V. Hall, 724. V. Harway, 497. V. Rickard, 888. Murrell t. Roberts, 378. Muse V. Friedenwald, 220. Musgrove v. Bonser, 1079. , Mustard v. Wohlford, 859. Mutton's Case, 723. Mutual Assur. Soc. v. Stone, 579. Mutual Ben. Life Ins. Co. v. Rector, etc., of Grace Church, 516. Mutual Life Ins. Co. r. Everett, 1054. V. Shlpman, 299, 1050. Muzzarelli v. Hulshizer, 902. Myers v. Daviess, 504. V. Dunn, 96. v. Kingston Coal Co., 336. V. Safe-Deposit & Trust Co., 1053. V. Zetelle, 4.^0. Mygatt V. Coe, 902, 913. N Naill V. Maurer, 204. Names v. Names, 7'57. Napier v. Bulwinkle, 120, 853. Xapper v. Sanders, 608, 652, 654. National Union Bank of Dover v. Se- gur, 903. Xeal V. Henry, 55. Nebraska v. Iowa, 813, 815. Needham v. Allison, 81. V. Branson, 745. Needles v. Needles, 946. Neel T. Neel, 384. Neff V. Ryman, 198. Neill V. Keese, 415. Nellis V. Lathrop, 357, 366. Nelly v. Boyce, 677. Nelson v. Brewery Co., 350. V. ^rown, 570. V. Carrington, 1048, V. Davidson, 884. Nepeau v. Doe, 344. Nettleton v. Sikes, 127. Neubert v. Massman, 950. Nevil's Case, 62. Nevltt V. Woodburn, 702. Nevvbrough v. Walker, 358. Newburgh & C. Turnpike Road Co. v. Miller, 65. Newby v. Blakey, 820. Newcomen v. Coulson, 106. Newell V. Hill, 117. Newhall v. Ireson. 53. V. Wheeler, 147. New Jersey Zinc Co. v. New Jersey Frankllnite Co., 49. Newkerk v. Newkerk. 143, 516. Newley v. Jackson, 335. Newman v. Anderton, 323. CASES CITED. [Tlie figures refer to sections.] xii IS'ew Orleans, J. & G. N. R. Co. v. Moye, 1069. Newport News Shipbuilding & Dry Dock Co. V. Jones, 56. Newport News & O. P. Ry. & Electric Co. V. Hampton Roads Ry. & Elec- tric Co., 64, 65. Newport Waterworks v. Sisson, 420. Newsom v. Holesapple, 700. V. Pryor, 932. Newsome v. Bowyer, 186, 863. Newton V. Wilson, 76. New York Life Ins. Co. v. Mayer, 283. New York, etc., R. Co. v. Railroad Com'rs, 99. New York & L. B. R. Co. v. Borough of South Amboy, 1070. Nicedemus v. Young, 892. Nice's Appeal, 1081. Nicholas v. Chamberlain, 97, 100. V. Kershner, 1006. Y. Nicholas, 780. NichoUs V. Maynard, 529. Nichol V. Lytle, 835. Nichols V. Council, 823. V. Eaton, 430, 526. V. Gould, 946. V. Luce, 06, 99. V. New England Furniture Co., 931. Nicholson v. Munigle, 365. Nickell V. Tomlinson, 283. Nickerson v. Swett, 957. Nldever v. Ayears, 978. Xiehaus v. Shepherd, 813. Nimmo V. Com., 823. Xininger v. Norwood, 119. Nixon V. Armstrong, 1018. V. Porter, 826. Noble V. Smith, 41. V. Sylvester, 49. Noel V. Bewley, 253. Noftsger V. Barkdoll, 124. Nokes' Case, 368, 897. Noonan v. Lee, 912. V. Pardee, 113. JSforfleet v. Cromwell, 93. Norfolk City v. Cooke, 832. Norfolk's Case, 716. Norfolk & W. R. Co. v. Carter, 119. V. De Board, 112. V. Obenchain, 105, 108. Norman v. Cunningham, 724, 744, 745. Norris v. Harrison, 207. V. Litchfield, 350. V. Milner, 475. North Adams Universalist Soc. v. Bo- land, 691. Northcut V. Whipp, 233, 252, 254. Northern Transp. Co. v. Chicago, li:!, 114. Northern Trust Co. v. Snyder, 375. North V. James, 822. Norton v. Babcock, 909. V. Craig, 31. V. Kelley, 945. V. Norton, 313. V. Dashwood, 34. V. Volentine, 53. Norway v. Rowe, 394. Norwood V. Washington, 951. Nova Cesarea Harmony Lodge No. 2 V. White, 374. Nowlin Lumber Co. v. Wilson, 120. Noyes v. Colby, 117. Nurse v. Craig, 863. Nye V. Lovitt, 141, 602, 899. V. Taunton Branch R. Co., 209. Gates V. Frith, 360. V. Jackson, 172. O'Bannon v. Roberts, 773. Obert v. Dunn, 114. Cecum Co. V. A. & W. Sprague Mfg. Co., 124. Ocean Grove Camp Meeting Ass'n v. Asbury Park Com'rs, 59. O'Connor v. Memphis, 368. O'Donnell v. Hitchcock, 26. V. Penney, 835. Ogden V. Gibbons, 65. Ogilvie V. Hull, 373. Oglesby v. Hughes, 335. O'Hara v. Richardson, 833. Okeson v. Patterson, 849. Gland's Case, 42, 46. Oldham v. Sale, 244. Old South Soc. V. Wainwright, 826. Olin V. Henderson, 835. Oliver v. Alabama Gold Life Ins. Co., 321. V. Hook, 103. Olliffe V. Wells, 1014. Olmsted's Estate, In re, 1021. xlii CASES CITED. [The figures refer to sections.] Dlney V. Fenner, S52. V. Gardiner, 850. V. Hull, 600. Omelvany v. Jaggers, 55. Oney v. West Buena Vista, 102. Onions v. Tyrer, 1021, 1023. Oppenheim v. Henry, 678. Orman v. Day, 116. Ormes' Case, 409. Osborne v. Cabell, 570. Osbrey v. Bury, 653. Osgood V. Franklin, 732, 944, 1018. V. Howard, 35. Oswald V. Wolf, 103. Otis V. Smith, 21. Otterback v. Bohrer, 704. Ott T. Kreiter, 102. Overdeer v. Lewis, Si'). Overfield v. Christie, b2S, S29. Overman v. Sasser, 30. Overseers of Poor v. Sears, 146. Overstreet v. Manning, 1076. Overton v. Davisson, 832, 840. Owen v. Ellis, 1050. V. Hyde, 266. V. Robbins, 259. V. Slatter, 295. Owens V. Dickinson, 865. Owings V. Jones, 350. Owsley V. Harrison, 699. Oxford Tp. V. Columbia, 823. Packer v. Welsted, 90. Packington v. Packington, 387. Padelford v. Padelford, 382. Page V. Esty, 315. V. Fowler, 42. V. Symonds, 121. Paget v. Melcher, 604. Pa pets' Case, 393. Paige v. Chapman, 567. Paine v. Barnes, ]044. V. Chandler, 97. V. Jones, 570. V. Jleller, 18. V. Wagner, 172, 719. V. Woods, 60. Paine's Case, 208, 220, 220, 230, 275, 1045. Palmer v. Edwards, 991. V. Fletcher, 118. Palmer v. Halford, 696. V. Palmer, 103. Panton v. Holland, 114. V. Jones, 346. Pardee v. Treat, 570. Parntt V. Hember, 171. Parham v. Tompson, 38, 41. Parish v. Whitney, 903. Parke v. City of Seattle, 113, 114. Parker v. Brown, 906. V. Foote, 118, 852, 853. V. Griswold, 53. V. Hotchkiss, 853. V. Mercer, 568. V. Nightingale, 93, 902. V. Obear, 299. V. Parker, 303. V. Ross, 638. V. Sears, 1048. V. Wallis, 832. Parkhurst v. Van Cortland, 93. Parkman v. Welch, 573. Parks V. City of Newburyport, 119. V. Hears, 926. Parrish v. Parrish, 19, 246, 247. Parsons v. Baker, 1046, 10.52 V. Camp, 31. V. Parsons, 62. V. Trustees of Atlanta Univer- sity, 1070. Partridge v. First Independent Church, 121. V. Gilbert, 100, 103, 114, 116. V. Scott, 114. Pasley v. English, 832. Patrick v. Colerlck, 122, 123, 127. Patten v. Scott, 823. Patterson v. Stoddard, 335. V. Wilson, 1050. Pattison's Appeal, 38, 41. Patton V. Ludington, G77. V. Moore, 34. V. Stewart, 245. Paul V. Frierson, 604. V. Nurse, 371. Paxton V. Harrier, 572, V. Rich, 539. Payne v. Becker, 305. V. Johnson, 1050. V. Rogers, 350. Peabody v. Hewett, 892. Peachy r. Somerset, 528, 529, 530, 53i. CASES CITED. [The figures refer to sections.] xliiii Peacock v. Eastland, 409. V. Monk, 865. Pearce v. Gardner, 1051. V. McClenaghan, 107. Pearks v. Moseley, 705. Peck V. CaiT, 1005, 1006. V. Ingersoll, 366, 376. r. Loyd, 108, 122, 127. Peden v. Chicago, R. I. & P. R. Co., 903. Peek V. Roe, 118. Peirce v. Goddard, 21. V. Grice, 21, 25, 29, 35, 817, 347. Peirsol v. Roop, 1059. Pells V. Brown, 171, 644, 680, 706, 716. Pemberton v. Pemberton, 1024. Pendleton v. Vandevler, 196. Penhallow v. Dwight, 38, 41. Penn r. Baltimore, 465. V. "Whitehead, buo. Pennant's Case, 473, 498, 525. Penniman's Will, In re, 1021. Pennock v. Lyons, 497. Pennoyer v. Allen, 118. Pennsylvania College Cases, 64. Pennsylvania R. Co. v. Parke, 151, 520. Penrice v. Penrlce, 313. Pentland v. Keep, 853. Penton v. Robart, 29, 35. Penzel v. Brookmire, 568. People V. Canal Appraisers, 56. V. Darling, 348. V. Detroit White Lead Works, 118. V. Gillis, 327. V. Kirk, 812. V. Lambier, 813. People's Gas Co. v. Tyner, 59, 61, 62. People's Ice Co. v. Steamer Excelsior, 60. Pepin County v. Prindle, 516, 527. Pepper's Appeal, 1053. Perkins v. Adams, 816. V. Fisher, 681, 690, 703, V. Richardson, 866. Pernan v. Wead, 932. Perrin v. Blake, 620. Perrot v. Perrot, 393. Perry v. Aldrich, 365. V. Calhoun, 306. V. Davis, 496. V. Penn. R. Co., 87. V. Phillips, 715. Perry's .\ppeal, 568. Pery v. White, 642. Peter v. Beverly, 1033, 1048. V. Kendal, 63, 64. Peters v. Bain, 948. V. Bowman, 907. V. Cartier, 978. r. Newkirk, 366. V. Tunell, 586. Peterson v. Laik, 859. Pettigrew v. Village of Evansville, 119. Pettingill v. Porter, 96. Petts V. Gaw, 935. Petty V. Petty, 271. Petz V. Voight Brewery Co., 356. Phelps V. Nowlen, 59, 118. Phifer v. Barnhart, 1081. Philadelphia Baptist Ass'n v. Hart, 464. Philadelphia, W. & B. R. Co. v. Kerr, 353. Phillips V. Brown, 1047, 1050. V. Croft, 536. V. Ditto, 218, 226. V. Ferguson, IS. V. Halliday, 121. V. Harrow, 699. V. Hulsizer, 543. V. Phillips, 19, 247. V. Rhodes, 67. V. Smith, 382. V. Stevens, 370. Phinizy v. Guernsey, 18. Phippard v. Mansfield, 642. Phoenix Ins. Co. v. Continental Ins. Co., 902. Piatt V. Vattier, 839. Pickard v. Sears, 1067. Pico v. Colimas, 112. Pidcock V. Potter, 1006. Pierce v. Cleland, 93. V. Dyer, 114. V. Hakes, 643. V. Keator, 67. V. Shaw, 568. V. Trigg, 422. Pierre v. Fernald, 118, 848, 853. Pierson v. Garnett, 1052. Piggot V. Penrice, 1054. Pigot V. Bullock, 393. Pike V. Stephenson, 601. Pillow V. Roberts, 920. V. Southwest Virginia Imp. Co., 727, 771. T. Wade, 283. xlir CASES CITED. [The figures refer to sections.] Pillsbury v. Moore, 53. Pirn V. City of St. Louis, 822. Pinhorn v. Souster, 337. Pinniugton v. Galland, 96, 99. Piper V. Douglas, 737. Pittsburg &i L. A. Iron Oo. v. Lalce Superior Iron Co., bSo. Pitts V. Lancaster Mills, 53. Pitt V. Smith, 861. Pitznian v. Boyee, 126, 853. Pixley V. Bennett, 283. V. Clark, 55. Piatt V. Sleop, 668. Platner v. Slierwood, 186. Pleasant v. Benson, 347. Pleasants v. Pleasants, 700, 704. Plimpton V. Converse, 107. Plowman v. Williams, 909. Plummer v. Russell, 919. Plunkett V. Holmes, 253. Poe V. Dixon, 570. Poignard v. Smith, 834. Poindexter v. May, 117. Polack V. Shafer, 324. Pollard V. Xoyes, 302. T. Slaughter, 233. Pollock T. Farmers' Loan & Trust Co., 73. Polock V. Pioche, 370. Poison V. Ingram, lOo. Pomfret v. Ricroft, 96, 112, 395. Pool V. Lewis, 53. Poole V. Bentley, 327. Poole's Case, 27, 28. Pope V. Mead, 305. Pordage v. Cole, 495. Porter v. Bradley, 707. V. Durham, 119. T. Merrill, 324. V. Noyes, 909. V. Porter, 212, 227, 1006. V. Robinson, 300. V. Turner, 1054. Porter's Case, 704. Portland v. Prodgers, 863. Post V. Kearney, 991. V. Pearsall, 66. V. Rolirback, 703. V. Weil, 902. Potter V. Couch, 516, 518, 523. V. Everitt, 299. V. Gardner, 438, 442'. Potts T. House, 1005, 1006, 1008. PouU V. Mockley, 86. Powell V. Cheshire, 394. V. Dayton, 386. V. Monson & Brimfield Mfg. Co., 303, 304. V. Morgan, 333. V. Powell, 1021. V. Sims, 97, 853. T. White, 555. Powell's Trusts, In re, 1042. Power V. Tazewells, 832. Powis V. Smith, 726. Powles V. Jordan, 1059. Powlet V. Bolton, 393. Pownal V. Taylor, 902. Prather v. McDowell, 802. Pratt V. H. M. Richards Jewelry Co., 366. V. Lamson, 853. V. Ogden, 126. V. Sweetser, 105. Pray v. Stebbins, 745. Preble v. Maine Cent. R. Co., 835. Prescott V. Edwards, 1069, 1070. V. Long, 172. V. Trueman, 909. V. White, 112, 909. V. Williams, 909. Preston v. Bowmar, 932. V. Virginia Min. Co., 833. Prestons v. McCall, 985, 9S6. Prevot V. Lawrence, 357. Price V. Courtney, 1037. V. Hall, 636. v. Hobbs, 303. V. Lyon, 121. V. Methodist Episcopal Church, 121. V. Pickett, 43. V. Price, 20. V. Thompson, 1070. V. Town of Breckenridge, 1070. Prince v. Bearden, 536. V. Case, 125, 126. T. Wilbourn, 851. Pringle v. Witten, 906. Prison Ass'n v. Russell, 1031. Pritts V. Ritchey, 259. Proctor V. Bishop of Bath, 704. V. Hodgson, 96. Prodage v. Cole, 495. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 65. CASES CITED. [The figures refer to sections.} xlv Proprietors of Church in Brattle Square v. Grant, 702. Proprietor* of Jlill Dam Foundry v. Hovey, 920. Proprietors of New South Meeting House, In re, 121. Proprietors of South -Congregational Meetinghouse in Lowell v. City of Lowell, 21. Providence Bank v. Billings, 64. Provost of Queen's College v. Hallett, 395. Pi-y V. Pry, 1079. Pugh V. Duke of Leeds, 325. Pugsley V. Aikep, 347. Pulitzer v. Livingston, 699. Purcell v. Goshorn, 287. Purdy v. Hayt, 638. Purefoy v. Rogers, 253, 636, 651, 674, 683. Purner v. Piercy, 40. Pusey V. Gardner, 415. Putnam v. Tuttle, 94. Pybus V. Mitford, 612. Pyer v. Carter, 100. Pynchon v. Stearns, 379. Pyne v. Franklin, 172, 719. Q Quarles v. Lacy, 545. Queen v. St. George Union, 324. Quicksall v. City of Philadelphia, 1069. Quincy v. Jones, 114. Quintini v. City of Bay St. Louis, 118. Quivey v. Baker, 10G6. R Rahy V. Reeves, 903. Racouillat v. Sansevain, 1079. Radhurn v. Jervis, 62. Radcliff V. Mayor, etc., of Brooklyn, 113. Railroad Co. v. Carr, 55. Railsback v. Walke, 321. Raines v. Walker, 1066. Ralston v. Ralston, 268, .303. V. Town of Weston, 823. Ramsdill v. Wentworth, 102T. Ramsey v. Glenny, 835. Ramsey's Case, 812. Randall v. Randall, 19, 247. Randall v. Russell, 682. Randolph v. East Birmingham L. Co., 1046. Raney v. Heath, 6O0. Rangeley v. Midland R. Co., 8G. Raper v. Sanders, 1051. Rapier v. Tramways Co., 118. Ratcliffe V. Mason, 264. Ratcliffe's Case, 798. Rausch V. Moore, 299. Rawlinson v. Duchess of Montague, 800. , Rawlyn's Case, 322. Rawson v. Bell, 93. Rawston V. Taylor, 119. Ray V. Lynes, 118. V. Pease, 935. V. Pung, 275, 1045. V. Sweeney, 97. Raymond v. Andrews, 346. V. Raymond, 906. Rayner v. Lee, 298. V. Kugent, 121. Raynolds v. Carter, 539. 555. Read v. Willis, 719. Reade v. Reade, 658. Reading of Judge Trowhridge, 557. Ready v. Hamm, 262. Beckhow v. Schanck, 337, 344. Rector V. Waugh, 148. Reddick v. Long, 840. Redfield v. Buck, 952. Bedford v. Clarke, 439, 442. V. Gibson, 418. Redmond v. Excelsior Sav. Fund & Loan Ass'n, 1067. Red River Roller Mills v. Wright, 54. Redwine v. Brown, 913. Reed V. Lewis, 317. V. Lukens, 18. V. Morrison, 295. V. Reed, 220, 384. V. Swan, 38, 41. V. Whitney, 259. Re.eder v. Sayre, 320. Reel V. Elder, 280. Rees V. McDaniel, 815. Reeve v. Attorney General, 535. V. Long, 594. Regan v. Howe, 923. Reg. V. Chamberlain, 66. V. Chorley, 105. V. St. Paul's, 920. xlvi CASES CITED. £Th6 figures refer to sections.] Reg. V. Watts, 350. V. Westbrook, 74. Reid V. Garnett, 849. V. Rhodes, 935. V. Shergold, 1054. ReJdy v. Small, 1043. RelfC V. Horst, 283. Reilly v. Ringland, 42. Reimer v. Stuber, 846, 852, 853. Reitzelv. Eckard, 250. Rennyson's Appeal, 97. Rerick v. Kern, 126. Rex V. Pomfret, 74. Reyburn v. Wallace, 205. Reynolds v. Cook, 49, 1066. V. Reynolds, 250, 251. V. Waller, 861. Reysen v. Roate, 60. Rhea V. Forsyth, 87. Rhett V. Mason, 1046, 1052. Rhoads v. Davidheiser, 119. Rhodes V. Dunbar, 118. V. McCormick, 113. V. Otis, 56, 126. V. Town of Brightwood, 10G9. V. Whitehead, 53. 55, 674. Rice V. Adams, 27, 34. V. Lumley 212. V. Roberts, 93. V. Sanders, 570. Rich V. Sydenham, 861. Richard v. Mumford, 1024. Richards v. Attleborough Branch R. Co., 104. V. Bergavenny, 628. V. Chambers, 1054. V. Noi-thwest Protestant Dutch Church, 121. V. Rose, 100. Richardson v. Campbell, 529. V. Clements, 94. V. Copeland, 34. V. Crocker, 1038. V. Gifford, 347. V. Langridge, 347. V. Vermont Cent. R. Co., 113. • V. Wheatland, 604. V. Wyman, 260, 284. Richart v. Scott, 853. Richmond City v. Gallego Mills Co., 1070. Richmond, F. & P. R. Co. v. Louisa R. Co., 64, 65. Richmond Ice Co. v. Crystal Ice Co., 370. Richmond & D. R. Co. v. purham & N. R. Co., 126. Ricker v. Butler, 833. Riddle V. Littlefield, 936. V. Whitehall, 19, 422. Rideout V. Knox, 118. Ridgway v. Masting, 269, 234. Rigby V. Benjaett, 96. Riggs V. Murray, 1043. V. Palmer, 880. Right v. Beard, 335. V. Bucknell, 1066. V. Creber, 606. V. Darby, 343, 348. Rigler v. Cloud, 224. Riley v. Griffin, 932. V. Lissner, 356. Ripley v. Cross, 357. Rippin's Goods, 1021. Risher v. Adams, 604. Rising T. Stannard, 342. Ritchie V. Putnam, 299. Ritger v. Parker, 88, 107. Riverside Cotton Mills v. Lanier, 97. Rivis V. Watson, 366. Roach V. Wadham, 375, 376, 901, 1045. Roads V. Trumpiugton, 324. Roanoke Cemetery Co. v. Goodwin, 121. Roath V. Driscoll, 59, 853. Robbins v. Robbins, 301. Robeno v. Marlett, 1050. Roberts v. Bozon, 547. V. Lewis, 1044. V. Round, 1024. V. Whiting, 227. Robertson v. Campbell, 551. V. Gaines, 1047. Robie V. Flanders, 299. Robinson v. Allison, 828, 1048. V. Bates, 269, 283, 284. V. Clapp, 97. V. Deering, 321, 342. V. Gardiner, 64. V. Leavitt, 538. V. Miller, 250, 306. V. Rett, 447, 454, 455. V. Randolph, 143. V. Shaeklett, 301. V. AVilliams, .554. V. Willoughby, 536. CASES CITED. [The figures refer to sections.] xlvii Kobinson v. Wood, 691. Robison v. Female Orphan Asylum, 690. Rochford v. Hackman, 525, 526. Rockingham v. Penrice, S65. Rockwell V. Morgan, 310. Rodgers v. McCluer, 572. lloe V. Archbishop of York, 961. V. Bedford, 633. V. Farrars, 839. V. Griffith, 715. V. Jeffery, 707. RofCey v. Henderson, 127. Rogers V. Boynton, 357. V. Brokaw, 26, 34. V. Cox, 122, 123, 124, 127. V. Gilinger, 34. V. Grider, 745. V. Hurd, 8.59. V. Payne, 569. V. Sinsheimer, 115, 116. Rolfe & Rumford Asylum v. Lefebre, 696. Roller V. Murray, 465. Rome Gaslight Co. v. Meyerhardt, 109. Rood V. Hovey, 600. Rooke V. Rooke, 658. Roome V. Phillips, 600. Rorer Iron Co. v. Trout, 943. Rose V. Bunn, 94. Roseburgh v. Sterling, 287. Rose Hill Cemetery Co. v. Hopkinson, 121. Rosenfield v. Arrol, 351. Rosenthal v. JIayhugh, 295. Rosewell v. Pryor, 118. Rosher, In re, 518. Ross V. Adams, 606. V. Butler, 118. V. Drake, 600. V. Goodwin, 826. V. Kennison, 539. V. Jlilne, 887, 902. V. Norvell, 536, 550. V. Overton, 84, 36G, 370, 396. V. Thompson, 848. Rosser V. Depriest, 447. Rosse's Case, 201. Roswell's Case, 393. Rotch V. Rotch, 604. Roulston V. Clark, 850, 354. Eoundtree v. Brantley, 852. Rous V. Jackson, 1042. Rowan V. Hull, 888. Row V. Dawson, 565, 566, 569. Rowbotham v. Wilson, 93. Rowe V. Bentley, 831. V. St. Paul, M. & M. R. Co., 119. Rowell V. Klein, 42. Rowlett V. Daniel, 998. Rowton V. Rowton, 259. Royal V. Aultman, 438. Royall V. Lisle, 832. Royce v. Guggenheim, 373. Ruckman v. Outwater, 31. Ruffner v. Hill, 932. Runyan v. Jlersereau, 565. Rushin V. Shields, 923. Russ V. Mebius, 415, 939. V. Perry, 295. Russel V. Russel, 584, 585. Russell V. Fabyan, 343, 340. V. Jackson, 96. V. Richards, 21, 25. V. Russell, 747, 1037. V. Shenton, 350. V. Watts, 97, 118. Rust V. Low, 115, 117. V. Whittle, 287. Rutherford v. Clark, 1038. Rutland JIarble Co. v. Ripley. 49, 69. Ryan v. Mahan, 1035. Ryckman v. Gillis, 49. Ryder v. Wager, 564. Ryerson v. Quackenbush, 360, 366. Rylands v. Fletcher, 119. Rymes v. Clarkson, 891. Sabine v. Johnson, 55. Saddler v. Lee, 58. Sadler v. Pratt, 1053. V. Taylor, 540. Safe Deposit & Trust Co. of Baltimore V. Sutro, 1047. SafEord v. SafCord, 249, 250, 251. St. Albans v. Shore, 495. St. Andrews' Lutheran Church's Ap- peal, 903. St. Bede College v. Weber, S35. St. Helens' Smelting Co. v. Tipping, 118. St. Louis. I. M. & S. R. Co. v. O'BaugL, 903. xlviii CASES CITED. [The figures refer to sections.] St. Louis, J. & C. R. Co. V. Mathers, 504. St. Louis Nat. Stock Yards Oo. v. Wiggins Ferry Co., 126. St. Louis V. Rutz, 815, 816. Saltmarsh v. Smith, 298, 299. Sammes' Case, 409, 723. Sampson v. Burnside, 126. V. Camperdown Gotton Mills, 35. V. Graham, 23, 34. V. Henry, 345. V. Hoddinott, 120, 853. Samson v. Rose, 42, 46. Samuel v. Marshall, 861. Sanderliu v. Baxter, 97. Sanders v. Ellington, 44. V. McMillian, 303, 304, 310. V. Martin, 115, 116. V. Partridge. 377. V. Ransom, 931. Sanford v. Harney, 348. V. McLean, 859. San Francisco v. Fulde, 830. San Leandx'o v. Le Breton, 1069. Sargent v. Ballard, 848. V. Smith, 346. Saunders v. Blythe, 299. V. Webber, 1047. Saunders' Case, 384. Sawyer v. Kendall, 828, 829, 830. V. McGillicuddy, 350. V. Twiss, 31. V. Wilson, 12.";. Saxton V. Hitchcock. 544. V. Webber, 691, 698. Say V. Barwick, 861. V. Stoddard, 327. Sayer v. Sayer, 1054. Sayers v. Hoskinson, 382, 334. Scales V. Cockrill, 830. Scammon v. Campbell, 304. V. Sawyer, 932. Scatterwood v. Edge, 655, 097. Scheldt V. Crecelius, 1038. Schermerhorn v. Negus, 518. Schlesinger v. Kansas City & S. R. Co., 478. Schneider v. Morris, 891. Schofleld V. Cox, 565. School Committee v. Kesler, 917. Schulenberg v. Harriman, 473, 475. Schultz V. Bower, 113. V. Byers, 114. Schultz V. Schultz, 1024. Schuyler v. Leggett, 347. Schwallback v. Chicago, M. & St. P. Ry. Co., 1078. Schwalm v. Beardsley, 116, 031, 932. Scioto Fire Brick Co. v. Pond, 49. Scofleld V. Olcott, 677. Scott V. Bentel, 97. V. Bryan, 1050. V. Davis, 1054. V. Harwood, 678 V. McJlillan, 903. V. Moore, 87, 95, 97, 105, 103. V. Scott, 979, 991. V. Simons, 350. V. Tyler, 509, 511, 512, 513, 514, 523. Scratten v. Brown, 812. Scriver v. Smith, 909. Scrope's Case, 1050. Scully V. Murray, 320. Seager v. McCabe, 265. Seagrave v. Seagrave. 212. Sears v. Dillingham, 1018. V. Hayt, 848. V. King, 931. V. Putnam, 704. V. Smith, 321. Seaver v. Fitzgerald, 699. 703. Secrest v. McKennan, 259. Security Co. v. Snow, 1047. Sedgwick v. HoUenback, 906, 909, 912. V. Lafflin, 140. See v. Craigen, 171, 044. Segar v. Edwards. 427. Seibert v. Levan, 100. Seidensparger v. Spear, 126. Selb V. Montague, 302. Selby V. Greaves, 74. Selden v. Camp, 347. V. Delaware & H. Canal Co., 122, 126. V. Keen, 511. Sellers v. Reed, 601. Sellman v. Bowen. 299, 313. Selwin v. Selwin, 715. Semmes v. Semmes, 1021. Seneca Nation of Indians v. Knight, 57. Sere v. Bitot, 1076. Sewall V. Wiliuer, 1050. Seward v. Jackson, fi.j2. Sexton V. Chicago Storage Co., 374. CASES CITED. [The figures refer to sections.] xlix Seymor's Case, 159, 196, 231. Seymour v. McKinstry, 586. Shacklett v. Roller, 1024. Shadden v. Hembree, 691. Shaffer v. Richardson, 280. Shakespeare v. Alba, 321. Shalter's Appeal, 1051. Shanks v. Lancaster, 888. Shannon v. Bradstreet, 1054. V. Hall, 1070. Sharon Iron Oo. v. City of Erie, 497. Sharp V. Johnson, 826. V. Ropes, 902. Y. Shenandoah Furnace Co., 840. Sharpe v. Orme, 1079. Shattuck T. Lovejoy, 371. Shauer v. Alterton, 951. Shaw V. Bowman, 45. V. Coffin, 525. V. Farnsworth, 327. V. Hoffman, 336. V. Loud, 892. V. Vincent, 287. Sheafe v. O'Nell, 298. Shearer v. Shearer, 19. Shearman v. Hicks, 1033. Shee V. Hale, 648. Sheen v. Rickie, 22. Sheffield v. Orrery, 656. Shelburn v. Inchiquin, 955. Shelby v. Guy, 820. Shellenberger v. Ransom, 880. Shelley v. Nash, 296. Shelley's Case, 171, 215, 253, 602, 600, 610, 611, 612, 614, 632, 633, 683, 723, 1045. Shelton v. Ficklin, 25, 27, 34. V. Homer, 1047. Shepherd v. Burkhalter, 1079. V. Cummings, 347. Sherman v. Plleks, 1049. V. Willett, 41. V. Williams, 358, 368. Shermer v. Shermer, 70S. Sherred v. Cisco, 103, 116. Sherwood v. Moelle, 978. Shields v. Batts, 298, 299. V. Titus, 87. Shindelbeck v. Moon, 350. Shlppen V. Whlttier, 566. Shirley v. Crabb, 103. Shirras v. Caig, 554. Shoemaker v. Walker, 249. MiNOK & W.Real Pbop.— d Shoenberger v. Lyon, 94. Shoot V. Galbreath, 313. Short V. Smith, 1021. Shotwell V. Sedam, 295. Shurtz V. Thomas, 295. Shuttleworth v. LeFleming, 67. Sicard v. Davis, 919. Sidall's Estate, In re, 699. Siddons v. Short, 96. Sigourney v. Munn, 19, 247. Silsby Y. Trotter, 49, 66. Silverwood v. Latrobe, 121. Simar v. Canaday, 269. Simkin v. Ashurst, 343. Simmerman y. Souger, 1008. Simmons v. Lyle, 300. V. Spratt, 872, 892. Simpson v. Boston & JI. R. Co., 94. V. Walker, 1020. Sims V. Everhardt, 859. V. Sims, 415, 416, 1014. Singer Mfg. Co. v. Lamb, 859. Sinton v. Boyd, 600. V. Butler, 350. Sioux City Terminal R. & Warehouse Co. V. Trust Co. of North America, 699. Sioux City & St. P. R. Oo. v. Singer, 527. Sip Y. Lawback, 295. Sisson V. Hibbard, 25. Skally V. Shute, 373. Skeate v. Beale, 862. Skinner v. Wilder, 17. Skipwith V. Cabell, 1021. Y. Cunningham, 887, 923. Slack V. Bird, 600. Slagel V. Hoover, 951. Slater v. Moore, 959. v. Ra\YSon, 907. Slaughter v. Cunningham, 859. Slee v. Manhattan Co., 556. Sloan V. Lawrence Furnace Co., 49, 94. Slocum V. Seymour, 40. Sloman v. Walker, 528. Sloniger v. Sloniger, 299. Small V. Proctor, 243. V. Small, 604, 1003. Smiles v. Hastings, 96. Smiley v. Wright, 295. Smith V. Addleman, 304. v. Agawam Canal Co., 55. V. Ashton, 1054, CASES CITED. [Tha figures refer to sections.] Smith V. Barham, 38, 41. V. Barrie, 527. V. Bowes, 1054. V. Brannan, 475. V. Champney, 41. V. Chapman, 171. V. City of Rome, 384. V. City of Seattle, 113. V. Olarli, 527. V. Collyer, 394. V. Cooley, 69. V. Curtis, 1050. y. Death, 1061. V. Gardner, 538. V. Goulding, 126. V. Griffin, 96. V. Hardesty, 1035. V. Henning, 1038. V. Hornback, 826. V. Johnston, 41. V. Kerr, 332, 356. V. Lancaster, 324. V. Langewald, 108. V. Lord Camelford, 653, 1035. V. McCorkle, 823. V. Mclntyre, 1033, 1044. V. Mapleback, 979. V. Marrable, 323, 355. V. Maryland, 56. V. Mawhood, 940. V. Mundy, 357. V. Packhurst, 276. V. Price, 38, 41. V. Raleigh, 373. V. Rice, 604. V. Richards, 943. V. Smith, 271, 303, 859. V. Surman, 40. V. Usher, 643. V. Washington City, V. M. & G. S. R. Co., 556. V. Whitney, 29. V. Yule, 1073. Smith Paper Co. v. Servln, 27. Smith's Appeal, 600. Smithwick v. Ellison, 31. Smyth, Ex parte, 207, 362, 305. V. Carter, 381. Smythe v. Smythe, 509, 1044. Snavely v. Pickle, ,556. Snedeker v. Warring, 23, 20. Sneed v. Sneed, 10.54. Snell V. Levitt, 105. Snell V. Snell, 1051. Snodgrass v. Reynolds, 358. Snow V. Boycott, 201. V. Parsons, 53, 54. V. Perkins, 31. Snowden v. Tyler, 1076. Sobey v. Brisbee, 321. Sohier v. Eldredge, 365. V. Trinity Church, 121. Somerset v. Fogwell, 93. Sonday's Case, 171, 644. Southard v. Central R. Co., 151, 527. South-by V. Stonehouse, 710, 865. Southern Pac. R. Co. v. Dufour, 59. Southern R. Co. v. Glenn, 455. Southern v. Wallaston, 701. Spackman r. Steidel, 108. Spader v. Lawler, 554. Spaulding v. Abbot, 87. V. Bradley, 978. Spencer's Case, 361, 375, 901, 903. Spencer v. Weston, 299. Spicer v. Martin, 902. Spiller V. Andrews, 313. Sprague v. City of Worcester, 55. V. Stone, 1026. Sprigg V. Bank of Mt. Pleasant, 536. Spring Garden Bank v. Hurlings Lum- ber Co., 704. Springle v. Shields, 287. Sprinkle v. Hayworth, 1014. Squire v. Harder, 415. Stafford v. Buckley, 62. V. Coyney, lOOS. Staines v. Morris, 904. Stall V. Wilbur, 38, 41. Stambaugh v. Yeates, 41. Stamper v. Sunderland, 323. Standen v. Standen, 1050. Staples V. Emerj-, 31. Star V. Rookesby, 115. State V. Atherton, 1070. V. Black River Phosphate Co., 56. V. Burt, 49. V. Goodnow, 34. v. Martin, 375. V. Pottmeyer, 60. V. President, etc., of Bank of Ten- nessee, 785. V. Suttle, 108. V. Trask, 1068. V. Travis County, lOVO. State Sav. Bank v. Kereheval, 23, 26. CASES CITED. [The figures refer to sections.] Stearns v. City of Richmond, 113, 114. Steed v. Hinson, 361. Steele, In re, 202. V. La Frambois, 250. T. Mart, 325. V. Sioux Valley Bank, 978. V. Spencer, 1081. V. Steele, 301. Steere v. Steere, 421. V. Tiffany, 105. StefCens v. Earl, 348. Stegall V. Stegall, 280. Stein V. Burden, 53. T. Dalim, 105, 108, 122, 127. Steininger v. Williams, 321. Steinmeyer v. Steinmeyer, 571. Stelz V. Shreck, 747. Stephens v. Britridge, 625. V. Leach, 826. V. Stephens, 692, 713. Sterger v. Van Sicklen, 350. Sterling v. Baldwin, 40. T. Penlington, 214, 758. V. Warden, 122, 123, 125, 126, 127. Stevens v. Cooper, 573. V. Kelley, 60. V. Lawton, 172. V. Rose, 387, 388. V. Smith, 214, 207. V. Stevens, 126, 310. V. Taylor, 498. V. Thompson, 759. V. Van Clieve, 858. V. Webb, 503. V. Winship, 196, 1038. Stevenson v. Texas & P. R. Co., 1077. V. Wallace, 100. Stewart v. Chadwick, 298. V. Doughty, 38, 41. v. Hartman, 96. V. Llspenard, 858, 1005. T. Long Island R. Co., 374, 375, 376. V. Preston, 565. Stickney's Will, In re, 672. Stlllman r. Flenniken, 34. Stimpson v. Bishop, 565. Stimson v. Thorn, 309. Stinchcomb v. Marsh, 888. Stinson v. Sumner, 269, 284, 914. Stockbridge Iron Co. v. Hudson Iron Co., 49, 66, 144. Stocker v. Berney, 820. Stocker v. Foster, 1055. Stockport Waterworks Co. v. Potter, 53, 853. V. Campbell, 26. V. Hunter, 21, 323, 366. T. Phelps, 42. Stoddard v. Emery, 378. Stokely v. Slayden, 214. Stokes v. Payne, 1037. V. Russell,- 901. v. Van Wyck, 141, 628. Stone V. Sledge, 892. Stonestreet v. Doyle, 727. Stoney v. Bank of Charleston, 295. v. Shultz, 557. Storrs V. Benbow, 704. Story V. Odin, 118. Stott V. Francy, 946. V. Rutherford, 368. Stoughton V. Leigh, 49, 249, 205, 310, 384. Stoughton's Appeal, 49, 61. Stout V. Stout, 699. Stow V. Tifft, 245. Strafford v. Wentworth, 207. Straight v. Harris, 1076. Strathmore v. Bowes, 271, 947. Stratton v. Best, 723. Straus V. Rost, 600. Strayer v. Long, 296. Stringfellow v. Tennessee Coal, Iron & R. Co., 823. Strong V. Clem, 269, 290, 305. v. Converse, 302, 570. V. Doyle, 31. Stuart V. Clark, 56, 57. V. Pennis, 38, 40. StubbS V. Sargon, 463. Stucke V. Milwaukee & M. R. Co., 117. Stuckey v. Keefe, 744. Studholme v. Hodgson, 714. V. Mandell, 503. Stukeley v. Butler, 40. Stultz v. Dickey, 45. Stump V. Findlay, 196. Sturgeon v. Wingfield, 322, 1064. Sturges V. Bridgman, 118. Stuyvesant v. City of New York, 151, 520. V. Davis, 498. V. Woodruff, 848. Suburban Co. v. Turner, 604. Suflleld V. Brown, 100, \n CASES CITED. [Tlie figures refer to sections.] Sullens V. Chicago, R. I. & P. K. Co., 55. Sullivan v. Jones, 25. V. Royer, 118. V. Zelner, 853. Sully V. Schmitt, 373. Sulphur Mines Co. v. Thompson, 126, 127, 824, 834, 888, 1033. Summers t. Donnell, 310. V. Roos, 5.54. Sumner v. Hampson, 19, 247. T. Partridge, 220, 222, 254. Supervisors of Bedford County v. Bed- ford High School, 522, 902. Surget V. Arighi, 358, 368. Susquehanna & W. V. B. & Coal Co. V. Quick, 832, 913. SutlifE V. Atwood, 76. Suttle V. Richmond, 835. Sutton V. Head, 903. V. Mandeville, 369. V. S-utton, 904. Sutton's Hospital Case, 874. Suydam v. Jackson, 332, 356, 386. Swaine v. Ferine, 203, 271. Swain v. Mlzner, 324. Swansborough v. Coventry, 97. Sweaney v. Mallory, 295. Swedish-American Nat. Bank v. Con- necticut Mut. Life Ins. Co., 102. Sweeney v. "Warren, 1038. Sweetapple v. Bindon, 223, 257, 258. Swett V. Cutts, 119. Swift V. Calnan, 116. Swindon Water Works Co. v. Canal Xav. Co., 53. Swords V. Edgar, 350. Sykes v. Sykes, 249,^ 252. Sylvester v. Ralston, 341. Talib V. Baird, 940. V. Binford, 897. Tabor V. Foy, 567. Taggart v. Warner, 109. Tainter v. Clark, 1047, 1048. Talamo v. Spitzmiller, 320. Taliaferro v. Minor, 442. Talley v. Robinson, 862, 891. Tallmadge v. East River Bank, 902. Tallman v. Coffin, 375. V. Mui-phy, 373. Taltarum's Case, 176, 177, 179. Tampa Waterworks Co. v. Cline, 53, 58, 59. Tamworth v. Ferrers, 387. Tantum v. Green, 951. Tapia v. De Martini, 554. Tapling v. Jones, 118. Tarbuck v. Tarbuck, 690. Tardy v. Creasy, 85, 902. Tarpley v. Gunnaway, 262. Tate V. Fratt, 115, 116. v. Liggat, 435. V. Tally, 171. Taylor v. Baldwin, 759. V. Benham, 18, 443, 448, 450. V. Burnsldes, 826, 840. V. Cleary, 140, 141, 171, 615, 633. V. Com., 56. V. Cussen, 865, 892. V. Dyches, 87. V. Eatman, 1050. V. Fickas, 119. V. Fomby, 835. V. Forbes, 887. V. Glaser, 920. V. Hill, 758. V. Horde, 820. V. Martindale, 62. V. Millard, 109. V. Page, 567. V. Preston, 570. V. Short, 573. V. Shum, 904. V. Taylor, 639. V. Whitehead, 112. Taylor's Jiistate, 301. Teaff V. Hewitt, 22, 23, 26, 27. Tempest v. Rawlings, 327. Templemau v. Biddle, 45. Temple v. Temple, 1005. Templeton v. Twltty, 218, 226. V. Yoshloe, 119. Tenant v. Gold win, 59. Terhune v. li^lberson, 38, 41. Terry v. Fitzgerald, 446. V. McClung, 1070. V. Rodahan, 1050. Terstegge v. First German Benev. Soc. 366. Tevis V. Richardson, 287. Tew V. Jones, 341. V. Wintertou, 292. Teyuham v. Webb, 653. CASES CITED. [The figures refer to sections.] liii Thayer v. Arnold, 117. V. Mann, 556. V. Payne, 97. V. Thayer, 271. Thellusson v. Woodforci, 097, 716. Thoemke v. Fiedler, 12(3, 8o3. Thomae v. Thomae, 691. Thomas v. Ci'out, 35. V. Davis, 26. V. Gammel, 286, 859. V. Gregg, 1042. V. Hayward, 375. V. Hesse, 309. V. Nelson, 347. V. Record, 475. V. St. Pa-Jl's M. E. Cliurch, 909. V. Sorrell, 122. V. Thomas, 107. 203. T. Vonkapff, 375. V. Wyatt, 892. Thompson v. Bird, 571. V. Brown, 443, 450. V. Crocker, 55. V. Davenport, 540. V. Gregory, 93. V. I^each, 25.3. V. Maddux, 567. V. Morrow, 303, 304. V. Norris, 1055. V. Perry, 244. V. Rose, 373. V. Sheppard, 935. V. Thompson, 243, 570. V. Vance, 249. Thornbrough v. Baker, 536, 563. Thorndike v. Reynolds, 1049. Thornton v. Burch, 42. v. Grant, 814. V. Thornton, 724, 744, 745. Thoroughgood's Case, 917. Thorp V. Thorp, 405. Thrasher v. Ballard, 1035, 1036, 1054. Throckmorton v. Price, 1080. Thurbee v. Dwyer, 348. Thurber v. Martin, 53, 853. Thursby v. Plant, 378. Thurston v,. Hancock, 114. Thwaytes v. Dye, 1037. Tibbetts v. Home, 25. Tickle v. Brown, 850. Ticknor v. McClelland, 41. Titft V. Horton, 22, 25, 34. TiUotson V. Doe ex dem. Kennedy, 357. Tillotson V. Smith, 53. Timberlake v. Parish, G38. Tinicum Fishing Co. v. Carter, 67, SO. Tinker v. Forbes, 87. Tinsley v. Jones, 171. Tobey v. Moore, 672. Tod v. Baylor, 303, 304. v. Flight, 350. Tolle V. Correth, 53. Toilet V. Toilet, 1054. Tolman v. Sparhawk, 835. Tomkins v. Miller, 1044. Tomlinson v. Nickell, 230, 233, 1046, 1052. Tompkins v. Harwood, 118. V. Mitchell, 423. V. Powell, 434. Toomes v. Slade, 536. Topham v. Duke of Portland, 1055. Torrey v. Cook, 560. y. Minor, 295. Towles V. Burton, 1014. V. Fisher, 1050. , Towne v. Fiske, 32. Town V. Hazen, 127. Townley v. Bed well, 420. V. Sherborne, 448, 453. Town of Freedom v. Norris, 813. Townsend v. Tickell, 887. v. Walley, 1039, 1041. v. Ward, 570. Townshend v. Moore, 332, 356, 386. V. Thomson, 558. Tracy v. Atherton, 96, 844, 846. Trafton v. Hawes, 939. Trammell v. Trammell, 125. Traphagen v. Irwin, 1076. Trask v. Donoghue, 460. V. Trask, 923. Traute v. White, 116. Treat v. Dorman, 41. Trebett v. Prison Ass'n of Virginia, .53. Treport's Case, 333, 670. Tress v. Savage, 348. Trevett v. Prison Ass'n of Virginia, 53, 54. Trevivan v. Lawrence, 1005. Tribble v. Frame, 345. Trimm v. Jlarsh, 5.38. Tripe v. Marcy, 1078. Tripp v. Hasceig, 38, 41. Trotter v; Cassaday, 824, 840. liv CASES CITED. [The figures reler to sections.] Trotter v. Hughes, 570. Trout V. Pratt, 1055, 1058. Truell V. Tyson, 1051. Trumbull v. Trumbull, 249. Trustees of First Baptist Church v. Bigelow, 121. Trustees of Hollis' Hospital, In re, 6T2. Trustees of Hopkins Academy v. Dick- inson, 816. Trustees of Mayville v. Boon, 63. Trustees of Methodist Episcopal Church of Hoboken v. City of Ho- boken, 1068, 1009. Trustees of Poor of Queen Anne's County V. Pratt, 301. Trustees of Third Presbyterian Con- gregation V. Andruss, 121. Tuckahoe Canal Co. v. Tuckalioe, & J. R. Co., 63, 65. Tucker v. Moreland, 859. T. Sandidge, 1005, 1006. V. Thurston, 535. T. Tucker, 271. V. Vance, 299. T. Wilson, 546. Tuggle V. Berkeley, 487, 542. Tullit V. Tuilit, 393. Tully V. Harloe, 554. Tunis V. Grandy, 327, 366, 373. Tunstall v. Christian, 100 113, 114, 118, 853. Turk V. Ritchie, .j.j5. TurnbuU v. Mann, 556. Turner v. jjoe, 342. v. Hart, 852. V. Kerr, 544. V. Meyers, 211. v. Scott, 1014. V. Stephenson, 840. T. Street, 425. V. Thompson, 97, 118. V. Turner, 62. Turpin v. Saunders, 357, 820. Tuttle V. Eskridge, 729. V. Robinson, 34. V. Walker, 94. Twyman v. Hawley, 335. Twynam v. Pickard, 378. Tykes v. Smith, 865. Tyler v. Herring, 439. Tyret's Case, 410. Tyrringham's Case, 68, 69, 70. Tyson v. Post, 34. u Udell y. Peak, 823. Ulbricht v. Eufaula Water Co., 53. Underbill v. Collins, 366. Union Mut. Life Ins. Co. v. Hanford, 570. Union Nat. Bank v. Moline, Mil'burn & Stoddard Co., 554, 572. United Land Co. v. Great Eastern R. Co., 106. United Society v. Brooks, 123, 127. U. S. v. Bostwick, 332, 356, 379, 381, 384. V. De Repentigny, 473. V. Hooe, 554. V. King, 928. V. Nelson, 888. University v. Tucker, 384. Upton V. Archer, 959. V. Townend, 373. Urquhart v. Brayton, 570. Usher v. Richardson, 295. Utica Bank v. Mersereau, 322. Utterson v. Utterson, 1024. Uvedaii v. Uvedall, 652. Valentine v. Penny, 67. Valentine's Will, In re, 1024. Valley Palls Co. v. Dolau, 96. Valliant v. Dodemede, 377. Van Alst v. Hunter, 1005. Vanarsdall v. Fauntleroy, 214. Van Brunt v. Van Brunt, 677. Van Buren t. Olmstead, 536. Vance v. Vance, 294. Van Cleaf v. Burns, 240. Vandergrift v. Rediker, 117. Vanderzee v. Aclom, 653. Van Doren v. Everitt, 45. Van Duzer t. Van Duzer, 227. Vane v. Lord Barnard, 388. Van Grutten v. Foxwell, 600. Van Hanswyck v. Wiese, lOJo. Van Horn y. Clark, 93. Van Home v. Campbell, 708. Van Keuren v. McLaughlin, 107G. Van Kleeck y. Dutch Ref. Church 1031. Vanmeter v. Vanmeter, 420, 475, 902. Van Ness v. Pacard, 21, 23, 29, 30, 36. Van Note v. Downey, 227. CASES CITED. [The figures refer to sections.] Iv "Van O'ljinda v. Lothrop, 102. Van Osdell v. Champion, 519, 526. Van Rensselaer v. Kearney, 915, 1066. V. RadclifC, 66, 68, 69, 70. Varrell v. Wendell, 1053. Vaughan v. Farmer, 1044. A'aughen v. Haldeman, 32. Veshte V. Raritan Water Power Co., 93. Venables v. Jlorris, 612, 613, 631, 1045. ^'enable v. Wabash W. R. Co., 269. Vernam v. Smith, 357, 358, 368. Vernon v. Smith, 375, 378. Vetter's Appeal, 76. Viall V. Carpenter, 103. Vidal V. Girard, 464. Viele V. Judson, 1078. Vigo V. Emery, 443. Village of Delhi v. Youmans, 59. Vincent v. Michel, 120. Virginia Hot Springs Go. v. Grose, 54. Virginia Midland R. Co. v. Barbour, 824, 833, 834. A'irginia & T. Coal & Iron Co. v. Fields, 978. Viterbo v. Friedlander, 356. "V'ogelsmeier v. Prendergast, 815. Vogler V. G«iss, 108, 122, 127. Vollmer's Appeal, 116, 12C. \'oorhees r. Burchard, 87. T. McGinnis, 27. ^'oorhis V. Freeman, 34. Vosburgh V. Teator, 835. ^"ought V. VoTjght, 923. Vynior's Case, 1002. Vyvyan v. Arthur, 374, 375, 378. w Waddell v. Waddell, 606. Wade V. Colvert, 861. V. Donau Brewing Co., 27. V. Malloy, 203. V. Miller, 298. Wadleigh v. Janvrin, 23, 34. Wadsworth v. Smith, 57. V. Tillotson, 50, 53. Wager v. Link, 570. Wagner v. Coen, 443. V. Hanna, 86. Wagstaft V. Smith, 865. Wahle V. Reinbach, 59. Wainscott v. Silvers, 370. Wait V. Baldwin, 38, 40. V. Wait, 212. Walden v. Bodley, 198, 467. Walford v. Duchesse de Pieune, 863. Walke V. Moore, 1033, 1049, 1050. Walker v. Cronin, 59. V. Deaver, 909. V. Hughes, 840. T. Kelly, 287. V. Lewis, G47, 702, 703. V. Neville, 313. V. Xew Mexico & S. P. R. Co., 119. V. Pierce, 112. V. Schuyler, 304. V. Sherman, 27, 34. V. Tyler, 421. V. Watrous, 117. Walker's Case, 361, 366, 374. Wall V. Bright, 420. V. Hinds, 32. V. Wall, 1014. Wallace v. Fletcher, 846. V. Scoggins, 321. Waller v. Long, 529. v. Martin, 220. Wallis V. Harrison, 126. Walpole V. Lord Conway, 653. Walsh V. Kelly, 212. V. Lonsdale, 74. V. Wallinger, 1046, 1052. V. Wilson, 302. V. Young, 859. Walsingham's Case, 159. Walters v. Hutchins, 382. V. Jordan, 280. Walton V. Walton, 1020, 1029. V. Waterhouse, 370, 396. V. Wray, 29. Walwyn v. Coutts, 923. Wanger v. Hippie, 851. Want V. Stallibrass, 1051. Ward V. Arredondo, 465. v. B;arrows, lOSS, 1058. V. Bartholomew, 829. V. Carp River Iron Co., 384. V. Cochran, 824, 833, 840. T. Cooke, 554. V. Cresswell, 844. V. Fagin, 356. V. Kilpatrick, 26. V. Ward, 105, 369, 759. v. Warren, 852, 853. Warden v. Richards, 104& Ivi. CASES CITED. [The figures refer to sections.] Ware v. Cann, 518. V. Owens, 269. V. Roland, 604. Waresey v. Perkins, 324. Warfel v. Knott, 932. Warfleld v. Castleman, 205. Waring v. Clarke, 56. V. Waring, 657. Warner v. Bennett, 151, 520. V. Connecticut Mut. Life Ins. Co., 1050. V. Hltchlns, 370. V. aiason, 615. V. South-worth, 932. V. Van Alstyne, 245. Warren v. Blake, 88, 101. V. Bowdran, 826. V. Chamhers, 813. T. Lynch, 920. Y. Synae, 93, 105. V. Twllley, 246. V. Wagner, 332, 356, 366, 370, 373. Washington v. Abraham, 420. Washington City Sav. Bank v. Thorn- ton, 913. Washington Ice Co. v. 'Shortall, 56, 60. Washington Mills Emery Mfg. Co. v. Commercial Fire Ins. Co., 94. Washington Natural Gas Co. v. John- son,. 377. Wass V. Bucknam, 214, 217, 758. AVasserman v. Jletzger, 435, 579. Wasson v. English, 447. Waters v. Gooch, 313. Waterson t. Devoe, 538. Watkins v. Green, 205. V. Quarles, 702. V. Robertson, 420, 939. T. Tucker, 94. Watriss'v. First Nat. Bank, 33. Watrous v. Blair, 1073. V. Morrison, 835. Watson V. Billings, 859. V. Bloren, 106. V. Gray, 115, 116. V. Hunter, 394. V. Smith, 946. V. Watson, 228. Wattles V. South Omaha Ice & Coal Co., 366. Watts V. Ball, 223, 257. V. C. I. Johnson & Bowman Real Estate Corp. 93, 105, 103, 847. Watts V. Cole, 999. V. Watts, 757. V. Welman, 909. Weale v. Lower, 603. Weatherall v. Geering, 525. Weathersly v. Weathersly, 540. Weaver v. Crenshaw, 300. V. Gregg, 246, 269. . V. Sturtevant, 298. Webb V. City of Demopolis, 823. V. Hearing, 644. V. Hoselton, 538. V. Russell, 901. V. Trustees of First Baptist Church, 233. Webber v. Closson, 117. Webster v. Lowell, 848, 851, 852. Weed v. Lindsay, 335. Weigmann v. Jones, 118. Weimar v. Fath, 1048. Weinberg v. Rempe, 1076. Weir V. Humphries, 252. V. Tate, 249. Wels V. Meyer, 103. Weiss V. South Bethlehem Borough, 1069. Welch V. Beers, 571. V. Wilcox, 111. Welcome v. Upton, 67. Weld V. Nichols, 903. Welles V. Bailey, 57, 813. Wellesley v. Mornlngton, 1055. Wells V. Garbutt, 100. V. McCall, 519. Welsh V. Phillips, 565. V. Taylor, 105. Wentworth v. Weutworth, 308. Wentz's Appeal, 1033. Wertheimer v. Wayne Circuit Judge, 407. Wescott V. Delano, 127. West V. Berney, 1060, 1001. V. Lassels, 366. V. McKinney, 840. V. Stewart, 21. V. Walker, 290. Westcott V. Campbell, 303, 304. Western Granite & Marble Co. v. Knickerbocker, 118. Western North Carolina R. Co. v. Deal, 25, 29. Western Transp. Co. v. Lansing, 317. Westfall V. Cottrills, 928. CASES CITED. [The figures reter to sections.] Ivii Westmoreland & Cambria Natural Gas Co. V. De Witt, 61. Weston V. W'eston, 32. West Point v. Bland, 10G9. West River Bridge Co. v. Dix, 64. West Virginia Transp. Co. v. Ohio Riv- er Pipe Line Co., 903. Wetherbee t. Ellison, 31. Wetherell, Ex parte, 584. Wetbersbee v. Farrar, 1076. Wetmore v. Bruce, 93. Wetzell V. Ricbcreek, 906. Weybright v. Powell, 706. Wbaley v. Stevens, 87, 852. Wbarton v. Stoutenburgb, 321. Wbeatley v. Baugh, 58, 59, 119, 853. V. Calhoun, 19, 245, 263, 422. r. Obrlsman, 53. Wheaton y. Gates, 121. Wheeldon v. Burrows, 100. Wbeeler v. Clark, 852. V. Earle, 366, 376. V. Frankentbal, 321. V. Hotcbkiss, 212. V. Smith, 464. V. Sohier, 913. V. Wheeler, 946. V. Wilder, 105. V. Winn, 832. Wheelock v. Jacobs, 59. Wheelwright t. Wheelwright, 923. Whipple V. Foot, 38, 41. Whitaker v. Brown, 94. V. Greer, 313. Whitbeck v. Cook, 906. Whitby V. Mitchell, 646, 647, 1041. White V. Bass, 100. V. Burnley, 840. V. Collins, 628. V. Cuyler, 888. V. East Lake Land Co., 53. V. Foster, 40. V. King, 122, 123, 127. V. Luning, 932. V. McPheeters, 659. V. Manhattan R. Co.. 108, 122. V. Maynard, 122, 324. V. New York & N. E. R. Co., 94. V. Pollock, 923. V. Wager, 294. V. Wagner, 379, 386, 393. V. White, 21, 283, 310. V. W^illiams, 932. Whitefield v. Dewit, 384, 393. Whitehead v. Morrill, 568. V. Whitehead, 45U. W'hitehouse v. Cummings, 96, 99. 103. White River Turnpike Co. v. Vermont Cent. R. Co., C4. Whitesides v. Cooper, 604. Whiting v. Brastow, 26. V. Ohlert, 321. V. Pittsburg Opera House Co., .321. Whitlock's Case, 363. Whitmarsh v. Cutting, 44. Whitmore v. Learned, 421. Whitney v. Allaire, 318. V. Lee, 106. Whittaker v. Peri-y, 343. Whitton V. Whitton, 488. Wickersham v. Orr, 93. V. Savage, 1047. Wickham v. Hawker, 94, 125, 895. V. Lewis, 1076. V. Richmond Standard Steel Spike & Iron Co., 76. Wickham & Northrop v. Richmond Standard Steel Spike & Iron Co., 359. Wiggins Ferry Co. v. Ohio & M. R. Co., 2.1. Wigglesworth v. Dallison, 45. Wilbourn v. Shell, 1021. Wilcox v. Hubard, 295. V. Randall, 267. V. Wheeler, 146, 147. Wilder V. City of St. Paul, 105. V. House, 345. V. Ranney, 1048. Wild's Case, 70, 172, 719. Wilkes V. Holmes, 1054. Wilkins v. French, 537. V. Jewett, 116. Wilkinson v. Adam, 184. V. Parrie, 3o-i. V. Leland, 1011. V. Proud, 69. V. Scott, 93S. V. Stafford, 443. V. Wilkinson, 507. Wilks V. Back, 888. V. Burns, 1049. Willcox V. Hines, 35.5. Willet V. Brown, 247. Iviii CASES CITED. [The figures refer to sections.] Willey V. Norfolk Southern R. Co., 105. Williams v. Baker, 813. V. Bolton, 393. V. Burrell, 897, 904. V. CUitty, 690. V. Daldn, 497. V. Earle, 371. V. First Presbyterian Society in Cincinnati, 1068. V. Gibson, 49, 66. V. Howard, 76. V. James, 106. V. Jones, 51S. V. Ladew, 343. V. McXamara, 387. T. Owen, 540. V. Price, 555. V. Scott, 826. V. Teachy, 565. V. Wait, 357. V. Wallace, 832. V. Williams, 299. Williamson v. Beckham, 1054. V. Oodrington, 897. V. Gordon, 579. V. Jones, 265, 394. V. New Jersey Southern E. Co., 34. V. Paxton, 347. V. Steele, 41. Willis V. Gattman, 952. V. Moore, 38, 41. Willis' Ex'r v. Com, 82, 83. Willison V. Watkins, 198, 467. Willoughby v. Lawrence, 86, 93. Wilmar v. Bridges, 249. Wilmington Water Power Co. v. Ev- ans, 93. Wilms V. Jess, 113, 114. Wilson. Ex parte, 557. V. Branch, 859. V. Chalfant, 03, 126. V. Cochran, 909. V. Davisson, 203, 204, 263, 296. V. Duguid, 1046, 1052. V. Hatton, 323, 355. V. Hayward, 568. V. Hunter, 835. V. Inloes, 928. V. Langhorne, 657, 658. V. Jladdison, 172. 719. V. Martin, 122, 324. V. iSIaryland Life Ins. Co., 1037. Wilson V. Mason, 1047, 1048. V. Parker, 202. V. Piggott, 1035. V. Widenham, 906. Wimbledon, etc., Conservators, v. Dix- on, 106. Wimple V. Fonda, 657. Winder v. Nock, 443. Wine V. Markwood, 171. Wing V. Chase, 920. V. Cooper, 540. V. Gray, 30. Winkler v. Miller, 978. Winn V. Abeles, 835. V. Village of Rutland, 119. Winslow V. Merchants' Ins. Co., 27. 34. Winsor v. Mills, 516, 518, 523. V. Pratt, 1021. Winston v. Jones, 1044. Winterbottom v. Ingham, 341. Winter v. Brockwell, 108, 122, 127. Winter's Estate, In re, 600. Winters v. Franklin Bank, 568. Wiscot's Case, 624, 737. Wiseman v. Eastman, 125. V. Lucksinger, 122, 126, 852. Wissler v. Hershey, 109. Wiswall V. Hall, 287. V. Stewart, 447. Wiswell V. Bresnahan, 468. Withers v. Carter, 578. V. Larrahee, 336. v. Yeadon, 1046. Withy V. Mumford, 913. Witts V. Horney, 421. Witty V. Matthews, 356. Wolf V. Van Metre, 435. V. Violett, 555. Wolfe V. Frost, 85, 89, 121. v. Hines, 1048. Womrath v. McCormick, 601. Wood V. Boyd, 144, 892. V. Fowler, 60. V. Holly Mfg. Co., 25. \. Keyes, 309. V. Leadbitter. 93. 122. 126. 127. V. McGuire, 677. V. iMauley, 122, 123, 127. V. Alichigan Air Line R. Co., 126. V. Saunders. 106. V. Seely, 295. V. Trask, 568. CASES CITED. [Tha figures refer to sections.] lix Wood V. Veal, 118. Woodbridge v. Winslow, 1042. Woodbury v. Luddy, 287. Wood County Petroleum Co. v. West Virginia Transp. Co., 61. Woodgate v. Fleet, 378. Woodman v. Pitman, 60. Woodruff V. Cook, 293. V. Erie R. Co., 357. V. PaSdock, 108. V. Pleasants, 704. Woodruff & Beach Iron Works v. Adams, 21. Woods V. Early, 761. V. Hilderbrand, 537. V. North, 906. Woods' Case, 724. Woodson V. Perkins, 553. Woodward v. Dowse, 280. V. James, 1008. V. Jewell, 1037. V. Seaver, 892. V. Seely, 122. Woodworth v. Bank of America, 959. V. Payne, 121. Woodyear v. Schaefer, 54. Woolam V. Hearn, 955. Wooldridge v. Wilkins, 304. Wooster v. Cooper, 1058. Wormley v. Wormley, 442. Worsham v. Callison, 259. Worthington v. Cooke, 366. Worthy v. Caddell, 1076. Wortley v. Birkhead, 579. Wright V. Blackwood, 866. V. Burroughes, 378. V. Denn, 143. V. Lancaster, 892. V. JIattison, 840. V.' Slinshall, 420. V. Moore, 847. V. Rose, 547. V. Stavert, 323, 324. Wright V. Stockport, 324. V. Tukey, 1069, 1070. V. Wakeford, 1049. V. Wright, 715, 1035. V. Young, 287. Wyatt V. Harrison, 114. Wyman v. Ballard, 909. V. Oliver, 264. Wynkoop v. Burger, 112. V. Wynkoop, 121. Wynn v. Garland, 93, 126. V. Harman, 322, 1065. Yancey v. Savannah & W. R. Co., 496 Yates V. Clark, 1050. Yerex v. Eineder, 119. Yetzer v. Thoman, 835. Youghiogheny River Coal Co. v. Pierce, 67. Young v. Bankier Distillery Co., 54. V. Dake, 321. v. Kinkead, 677. V. Morehead, 249. V. Mutual Ins. Co., 1050. V. Paul, 287. V. Spencer, 381. V. Tarbell, 306. V. Thrasher, 313. V. Young, 420, 1047. Youngblood v. Eubank, 35. Young's Estate, In re, 744. Zeininger v. Schnitzler, 116. Zell v. Ream, 345. Zoebisch v. Tarbell, 350. Zollman v. Moore, 954. Zouch V. Parsons, 859. v. Willingale, 349. Zule V. Zule, 365. THE LAW OF REAL PROPERTY DIVISION I. THE TENURES OF REAE PROPERTY. CHAPTER I. THE TENURES OF REAL PROPERTY. § 1. Modern Rules Derived from Feudal Principles. 2. Origin of the Feudal System. 3. Introduction of Feuds into England. 4. Nature of the Feudal Relation. 5. Same — Subinfeudation — Statute of Quia Bmptores. 6. The Several Classes of Feudal Tenures. 7. Incidents of the Feudal Tenures. 8. I. Reliefs. 9. II. Aids. 10. III. AVardship. 11. IV.' Marriage. 12. V. Fines for Alienation. 13. VI. Escheat for Lack of Heirs. 14. Conversion of Military into Socage Tenures. 15. Tenure in the United States Generally. § 1. Modern Rules Derived from Feudal Principles. Many of the legal principles controlling real property to-day may be traced to the ancient constitution of feuds that prevailed in England, and indeed on the continent also, abotit the time of the Norman Con- quest and afterwards. Without some acquaintance with the funda- mental conceptions upon which the feudal system was founded and with the incidents of that system, it would be impossible to grasp fully some of the most important of the rules that govern the use and transfer of land. § 2. Origin of the Feudal System. The constitution of feuds derived its origin fi^om the military policy of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who brought it from their own original countries, and continued it in their respective colonies as the most likely meanfe to secure their own acquisitions. To that end large districts were Minor «& W.Real Pkop. — 1 rU § 2 ORIGIN OF FEUDAL SYSTEM. [Ch. 1 allotted by the conquering general to the superior officers of the army, and by them dealt out in smaller parcels or allotments to the inferior officers and most deserving soldiers. Those allotments were called foeda, feuds, fiefs, or fees ; which last appellation, in the northern languages, signifies a conditional stipend or reward, the condition annexed being that the possessor should do service faith- fully to him by whom they were given, for which purpose he took the juramentum fidelitatis, or oath of fealty; and in case of the breach of this condition and oath, by not performing the stipulat- ed service, or by deserting the lord in battle, the lands were again to revert to him who granted them.^ Allotments thus acquired naturally engaged such as accepted them to defend them, and, as they all sprang from the same right of conquest, no part could subsist independent of the whole; where- fore all givers, as well as receivers, were mutually bound to defend each others' possessions. But as that could not be done effectually in a tumultuous, irregular way, government, and to that purpose subordination, was necessary. Thus the feudal connection was es- tablished, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutual- ly prepared to muster, not only in defence of each man's several property, but also in defence of the whole, and of every part, of their newly acquired domain ; the produce of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquest.^ Scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as "well as their personal valor, alarmed all the princes of Europe, that IS, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all, of them thought it necessary, upon the principle of self-protection, to enter into the same or a similar plan of policy. For whereas, before, the possessions of their subjects were perfectly allodial (that is, wholly independent, and held of no superior at all), now they parcelled out their royal territories, or persuaded their subjects to surrender up and retake their own landed property, under the like feudal obliga- tions of military duty. And thus, in the compass of a very few years, the feudal constitution, or the doctrine of tenure, extended itself over all the western world ; which alteration of landed prop- 1 2 Min. Insts. 62. 2 2 Min. Insts. 62, 63 ; 2 Bl. Com. 45 et seq. See, also, Kobertson's Charles v., Intro. ; Montesq. Sp. L., B. xxx, xxxi ; Hallam, Mid. Ages, c. II ; 1 Spence, Eq. Jur. 28 to 103. (2) Ch. 1] INTRODUCTION OF FEUDS INTO ENGLAND. § 3 erty, in so very material a point, necessarily drew after it an altera- tion of laws and customs, so that the feudal laws, in respect to lands, soon drove out the Roman, which had hitherto so universally obtained, and now became for several centuries measurably lost and forgotten.' § 3. Introduction of Feuds into England. The feudal policy, which had thus been by degrees established over all the continent of Europe, seems not to have been received in England, at least not universally, and as a part of the national constitution, till the reign of William the Norman. Not that traces are wanting of something similar amongst the Saxons, but not so extensive, nor attended with the rigor that was afterwards imported by the Nor- mans, perhaps because the Saxons were settled in England fully two centuries before feuds arrived at their full vigor and maturity on the continent.* The introduction of the feudal tenures into England by King William does not seem to have been effected immediately after the Conquest, nor by the mere arbitrary power of the conquerer, so much as by his address, and by adroitly availing himself of the peculiar situation of his Saxon subjects, so as to procure the assent of the common council of the realm to the innovation.^ After the fatal battle of Hastings (A. D. 106'6), he had of course rewarded his Norman followers with as large donations of land as were at his disposal, which, considering the immense slaughter of English nobility in the battle, must have been great. The fruit- less insurrections which followed, and the numerous forfeitures occurring therefrom, still further increased his ability to attach the Norman chiefs to his victorious standard. It is probable, therefore, that within a very few years after his accession to the crown of England, no inconsiderable portion of the landed estates of the kingdom were in the possession of Norman proprietors, who, of course, by their own choice, and as the result of a very natural poli-, cy on the part of the king, held according to that system of feudal military subordination to which both they and he had been accus- tomed in Normandy.' The consequence was that the same instinct of self-preservation, which led to the adoption of the feudal policy on the part of the several states of continental Europe, operated to constrain the great body of the Saxon thanes to consent ultimately to exchange their comparatively free, if not allodial, landholding for the mili- 3 2 MiD. lusts. 63; 2 Bl. Com. 47; Hal lam, Mid. Ages, c. II; 1 Spence, Eq. Jur. 28 et seq. *2 Min. Insts. 63. '2 Mln. Insts. 63. 8 2 Min. Insts. 64. (3) § 3 INTRODUCTION OF FEDDS INTO ENGLAND. [Cll. 1 tary tenures of the Normans. A feudal lord and his vassals, con- nected by the mutual obligation of protection and service, acted in vigorous concert, and, so far as the feudal circle was concerned, made amends for the feeble administration of the public magistrate. By the united force of this martial combination, injuries offered to any of its members were pretty sure to be avenged, and retorted with interest. The allodial proprietors, on the other hand, were in some measure aliens and outlaws in the midst of society, and, being thus exposed without any adequate legal protection, were fain to take shelter within the feudal association, and, rendering their lands to the king, were content to receive them back upon the terms of fealty and homage, preferring the security of vassals to the unprotected dignity of freemen.' Thus it was that William found it no very difficult task to prevail upon an assemblage of his nobility, probably about A. D. 1086, to consent formally to introduce the feudal tenures by law, in con- sequence of which it became a necessary principle (though in reality a mere fiction) of English tenures "that the king is the uni- versal lord, and original proprietor of all the lands in his kingdom ; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, and to be held upon feudal services." ' By this step, indeed, our English ancestors probabl)' designed nothing more than a system of military defence; but the Norman interpreters, skilled in all the niceties of the feudal constitution, gave a very different construction to the proceeding, introducing upon it not only the rigorous doctrines which prevailed in the duchy of Normandy, but also such fruits and incidents, such hardships and services, as were never known to other nations, as if the Eng- lish had in fact, as well as theory, owed everything to the bounty of their sovereign lord." § 4. Nature of the Feudal Relation. The retainer to whom the iise of the land was granted in return for feudal services was said to hold the land under or of his lord, becoming his tenant (teneo, to hold) or vassal, and the relation thus established between lord and vassal was called tenure ; while the thing so holden was styled a tenement. '^° 7 2 Min. Insts. 64. « 2 Min. Insts. 64 ; 2 Bl. Com. 48 et seq. » 2 Min. Insts. 64, 65 ; 2 Bl. Com. 48 et seq. ; 1 Tb. Co. Lit. 244. n. (3) ; Mr. Hargrave's note, continued and enlarged upon by Mr. Butler, Id. 913, App'x; Sullivan Lects. 254, Lect. 27: 1 Reeves, Hist. Eng. Law, 9; 1 Hume's England, Api>'x I. and II.; Hallam, Mid. Ages, c. Till; Anglo- Sax. Cbrou. A. D. 1086. 10 2 Min. Insts. 68; 2 Bl.,Com. 53-60; 1 Wasbburn, Real Prop. 18, 19. (4) Ch. 1] NATURE OF FEUDAL RELATIONS. § 4 Such tenants as held immediately vmder the king were called tenants in capite (or in chief), whilst the king himself was called lord paramount (Fr. paramont, above, from par or per, intensive, and amont, above). If the tenants in capite let out their lands to subordinate tenants, though they still continued tenants to the king, they were lords to the undertenants, who might themselves become lords to tenants still lower in the scale. These inter- mediate lords received the appellation mesne lords, or mesnes, and the undertenants, at least those lowest in the scale, were known as tenants paravail (Fr. par, intensive, and aval lowest) .^^ A feud, fief, or fee was conferred upon a vassal by means of a form of conveyance called "feoffment" ; and the ceremony by which he was admitted to its actual enjoyment and possession was known as an "investiture," later taking the name "livery of seisin.'' ^^ This consisted of an open and notorious, though symbolical, de- livery of the possession of the land in the presence of other vas- sals ; this, in the absence of any general acquaintance with reading and writing, being relied upon as affording the best available evi- dence of title. ^'^ The relationship of lord and vassal implied on the lord's part the duty of protecting the vassal in the enjoyment of his feud, and of supplying him with a new one of equal value, if deprived of the first by paramount title (the latter being the origin of the doc- trine of ancient warranty).^* Upon the vassal's part, the relationship implied fealty (i. e. an oath of fidelity) and homage (in. case of hereditary feuds), which consisted in kneeling in the presence of his fellows and professing that "he did become the lord's man (devenib vester homo) from that day forth, of life and limb and earthly honor." ^^ According to the nature of the services to be rendered the feud was either a proper feud or an improper feud. If a "proper feud," these services were of a military character, as to serve the lord in his public or private wars, and (originally) were of an uncertain dura- tion. ^^ At first "proper feuds" were the only ones known to the law, but as civilization advanced, and it was discovered that "peace 11 2 Min. Insts. 68. 12 2 Min. Insts. 65; 1 Washburn, Real Prop. 19. For a fuller description of livery of seisin, see post, 132 et seq. 13 2 Bl. Com. 53. 1*2 Min. Insts. 65 ; 2 Bl. Com. 57 ; 1 Washburn, Real Prop. 20. The doc- trine of ancient warranty is explained, post, § 897 et seq. 1=2 Min. Insts. 66; 2 Bl. Com. 45, note (3), 53, 54; 1 Th. Co. Lit. 253, note (c). 18 1 Washburn, Real Prop. 19; Wright, Ten. 5, 27. (5) § 4 NATURE OF FEUDAL RELATIONS. [Ch. 1 hath her victories, no less renowned than war," there arose a class of feuds called "improper feuds," in which services of a peaceful sort, such as the cultivation of the lord's land, the commutation of •military service in agricultural labor or products, money, etc., were substituted in the place of the warlike services at first demanded. ^^ It will be seen that, in time of war, the feudal system gave the king directly or indirectly the power to call out the full military strength of the kingdom, the only limitation being found in the period during which he could demand his subjects' services, the amount of such service to be required of the vassal in any year being generally limited by the terms of the donation. Subject to such restrictions, the king might call upon his tenants in capite to aid him in his wars. They must summon their imme- diate vassals, who in turn must summon theirs, until finally the units of the system — the lowest tenants in the series (tenants paravail) — be reached. It was this ability to mobilize rapidly a fighting force, inherent in the feudal system, that gave it vitality and popularity. As the services gradually ceased to be of a military character, its useful- ness was impaired, and it began to sink to its decay. While in its vigor, however, this system of military defense, in default of a better, could be regarded by the courts no otherwise than as sacred, and indeed for centuries no agreements nor trans- actions tending to impair its efSciency were favored. Hence it became an established feudal rule that a tenant could not, without the lord's assent, assign nor dispose of his feud to a stranger, so as to make him responsible to the lord for the feudal services, since the reason for conferring the feud was the personal capacity of the feudatory to render the services — a capacity which a stranger to the lord might not possess or might be unwilling to exercise in the lord's behalf. For analogous reasons, the lord could not transfer nor assign his seignory or duty of protection without the vassal's assent. ^^ It is to be observed that the feudal prohibition upon the tenant's alienation of his fief or feud applied to dispositions thereof by will with equal force and reason as to his alienation to a stranger inter vivos. Hence at common law there could be no such thing as a valid will of lands (except by the special custom of particular places, as in the "gavelkind" tenure), nor was there a statute per- mitting land to be devised until 32 Hen. VIII, c. 5." 17 2 Min. Insts. 67; 2 Bl. Com. 58; 1 Washburn, Real Prop. 19. 18 2 Min. Insts. 67; 2 Bl. Com. 57. The consent of a vassal to the transfer of the seigniory or overlordship w.ns called an attornment. in 2 Min. Insts. 997, 998; 2 Bl. Com. 84; 1 Washburn, Real Prop. 82- post, §§ 6, 1003. (C) Ch. 1] CLASSES OF FEUDAL TENURES. § 6 § 5. Same — Subinfeudation — Statute of Quia Emptores, ■While, as shown in the preceding section, the vassal could not transfer his feud to a stranger, so as to' shift upon him (and re- lieve himself of) the duty to render to the lord the services agreed upon, without the lord's assent (for which the latter gradually came to charge a considerable sum known as a "fine for aliena- tion"), yet the vassal might assign the land to a stranger, to be held imder the alienor by feudal services ; the vassal or alienor being still responsible to the lord for the services he had agreed to render. This proceeding was termed subinfeudation (as op- posed to alienation), and was freely allowed and much practiced in the earlier feudal times, down to the reign of Edward I.^° In the year 18 Edw. I (A. D. 1289) the Parliament passed the statute "quia emptores terrarum," so called from its leading words. This statute was of great importance in shaping and developing the English law of real property. It prohibited subinfeudation, and enacted that a grantee of lands in fee simple should thenceforth hold immediately of the superior lord, by the same services where- by the grantor had formerly held, and not of the grantor. But the statute did not apply to the king's tenants in capite.'^ This statute, while abolishing the right to subenfeofif, bestowed the far more important right of transferring the fee without con- sulting the lord's wishes, thus doing away with the odious and onerous "fines for alienation," and conferring upon the fee simple owner the complete jus disponendi, at least with respect to transfers inter vivos. ^^ § 6. The Several Classes of Feudal Tenures. In feudal law the tenure denoted not only the actual holding of land under or of an- other, but also the terms or conditions upon which he held. These were prescribed at the tinre of the donation of the feud, except in the case of a purely military or "proper" feud, in which case the conditions or services were implied by law.^^ 20 2 Min. Insts. 637; 1 Pollock & Maitland, Hist. Eng. Law, 310; Dlgby, Hist. Real Prop. 1.56. 212 Min. Insts. 637; 2 Bl. Com. 72, 289; 1 Washburn, Real Prop. 31. 22 2 Min. Insts. 45, 637; 2 Bl. Com. 72; 1 Washburn, Real Prop. 31, 32. 23 1 Wasbburn, Real Prop. 22. Mr. Washburn thus describes the usual division and occupation of feudal manors: "The lord reserved to himself a demesne contiguous to his castle sufficient for the purposes of his house, his cattle, etc. The remainder was divided into four parts. Upon one of these was settled a number of military tenants sufficient to do that part of the service which was due to his superior lord. Another was for the use of his socage tenants, who ploughed his lands or returned to him- the pre- scribed quantity of corn, cattle, etc. One part was for the lord's villeins, who performed the servile offices upon the manor of carrying out manure, building fences, etc., at the pleasure of the lord. The remaining part was (7) § 6 CLASSES OF FEUDAL TENURES. [Ch. 1 The feudal tenures were classified, according to the dignity of the service rendered, into free and base tenures; and, according to the amount of the service, into certain and uncertain.^* Tenure in chivalry or knight-service was a free tenure, the mili- tary service incident to which was uncertain in amount; the con- dition being to follow the lord in his wars for such period as he should demand, not to exceed generally forty days in each year. This was originally regarded as the most honorable of all the ten- ures, and was a "proper" feud.^^ But as, with the progress of civilization, warlike instincts yielded to the arts of peace, it came to be regarded as entirely becoming the dignity of a freeman to exchange for the uncertain military service the condition of paying to the lord a certain sum of money or a certain quantity of corn, cattle, etc., or performing a certain amount of labor such as plowing the lord's lands. These were called socage tenures (Anglo-Saxon, soc, privilege) — or tenures in free and common socage — and were characterized by services free and certain in amount, and yet not military.^" The base services were such as a freeman might not perform without more or less sacrifice of dignity and honor, and were in the main performable only by peasants and serfs. If the service was not only base, but also uncertain or unlimited in amount, the tenure was that of pure villeinage, which in few essential respects differed from slavery. The villein was obliged to do whatever was demanded of him.^^ If the service, though base, was certain in amount, the tenure was denominated villein-socage, and at a later period the tenure in ancient demesne.-^ These were the four most prominent forms of tenure, though there were in use at different times and places in England various reserved as waste land, out of which the tenants of the manor supplied them- selves with wood, etc., for their fires, fences and repairing their buildings, and with pasturage of their cattle upon what were called commons. ♦ * • Each of these manors had a domestic court of its own, made up of the sev- eral vassals of the lord, who were freeholders and were called the pares curiae. These had important parts to perform — among them, after feuds be- came alienable, the duty of witnessing the ceremony of homage, investiture and the like, by which lands were transferred." 1 Washburn, Real Prop. 22, 23. 2*2 Min. Insts. 69. 2 6 2 Min. Insts. 71; 2 Bl. Com. 61 et seq. ; 1 Stephen, Com. 176, 177. 28 2 Min. Insts. 70; 2 Bl. Com. 60 et seq., 79 et seq.; 1 Stephen, Com. 193 ; 1 Washburn, Real Prop. 23 ; Burr. Law Diet. Socage. 27 2 Min. Insts. 70; 2 Bl. Com. 61, 62. This subsequently became the copyhold tenure. 2 Min. Insts. 77. 2 8 2 Min. Insts. 70, 79; 2 Bl. Com. 62, 98, 99. (8) Oh. 1] INCIDENTS OF FEUDAL TENURES. § 7 modifications of these, some of which are briefly described in the appended foot-note.-" § 7. Incidents of the Feudal Tenures — Enumeration. Original- ly the relation of lord and vassal was in large measure that of protector and dependent, partaking somewhat of a patriarchal character. But it was also a political and military institution. It is necessary to hark back to these original conceptions if we would understand the incidents that gradually attached themselves to the system, finally becoming so burdensome as to cause its overthrow. These incidents were not foreseen by the English people when they admitted the Norman military tenures. They appear to have supposed that by consenting to admit those tenures they did noth- ing more than agree that they held their lands mediately or im- mediately of the king; that they would be faithful and true to him and his successors ; and that they would attend him in his wars for any period of time not exceeding forty days yearly. The other consequences, which proved so oppressive, were fastened upon them by the superior craft of the Norman lawyers.^" The more important of these incidents were (1) reliefs ; (2) 2 9 The tenure by grand sergeanty is a species of military tenure in capite, quite similar to knight-service. The service was usually of an honorary sort, as to carry the king's banner, his sword, or the like. In tenure by cornage the service stipulated was to wind a horn at the approach of the king's enemies. This was a species of grand sergeanty. 2 Min. Insts. 73 ; 2 Bl. Com. 73, 74. Tenure by escuage or scutage arises where a military tenant commuted Ws military services by the payment of money. 2 Min. Insts. 74 ; 2 Bl. Com. Y4, note (15). Tenure in frankalmoign (free alms) is a spiritual tenure, arising in case of religious corporations, such as monasteries ; the service stipulated being prayers for the repose of the soul of the donor and his heirs, etc. 2 Min. Insts. 70 ; 2 Bl. Com. 102. Petit sergeanty is a tenure in capite by the service of rendering annually «ome small implement of war, e. g., a bow, sword, lance, etc. 2 Min. Insts. 75 ; 2 Bl. Com. 81. Burgage tenure occurs In some of the ancient English boroughs (whence its name). It recognized especially the three local customs of (1) Borough- English (by which the youngest, instead of the oldest, son succeeds as heir) ; <2) Free-Bench (by which the widow is endowed of all, instead of one-third, of her husband's lands) ; and (8) the custom in particular places, even prior to statute 32 Hen. VIII, c. 5, of devising land by will. 2 Min. Insts. 75, 76. Gavelkind tenure still prevails in the county of Kent, where the Saxon resistance to the Normans was most obstinate. Its distinguishing properties are (1) that the tenant might aliene at the age of fifteen ; (2) that the land is not subject to escheat for felony ; (3) that the lands are devisable by will, independently of statute 32 Hen. VIII, c. 5 ; and (4) that the lands descend to all the sons together. 2 Min. Insts. 76. ao2 Min. Insts. 71; 2 Bl. Com. 63. (9) § 8 BELIEFS. [Oh. 1 aids; (3) wardship; (4) marriage; (5) fines for alienation; and (6) escheat for lack of heirs.^^ § 8. Same — I. Reliefs. Fiefs were originally voluntary dona- tions by the lord to the vassal, the form of which was to be strictly observed, lest the lord be construed to have given away more than he intended. Hence originally it was held, even after feuds became hereditary in the tenant's family, that that child, of a deceased ten- ant was to succeed to the feud who was nominated by the lord (who might thus protect himself against a weak or treacherous tenant). The one upon whom the lord's choice fell would usually make him a complimentary present, which was called a relief (rele- vare, to raise up), because the inheritance was thus raised up from its fallen condition. This present gradually came to be demanded as a right by the lord, who would thus charge heavily for the exer- cise of his choice, so that it finally became a very oppressive bur- den. ^^ § 9. Same — II. Aids. These also were in their origin mere benevolences, granted voluntarily by the tenant to the lord in times of difficulty and distress; but in process of time they came to be ex- acted as a right. They were usually claimed in cases where it was necessary to raise a sum of money, or its equivalent, either (1) to ransom the lord's person from captivity; or (2) to aid in knighting the lord's eldest son — a ceremony attended with much pomp and ex- pense, which took place usually when the son reached the age of fifteen ; or (3) to provide a marriage portion for the lord's eldest daughter.'^ § 10. Same — III. Wardship. Since the prompt performance of services, especially those of a military character, was essential to the efficiency of the feudal system, it became customary, after the heredity of feuds was established, for the lord upon the death of the tenant to take the decedent's lands into his own custody and himself provide for the performance of the services during the minority of the heir. This was known as the right of wardship, and included also the custody and education of the ward himself, upon the plausible ground that the lord was the party most interested in training him to be a good soldier. This incident of tenure was peculiarly oppressive, since the lord was under no obligation to ac- count to the ward for the profits of the land during the wardship.'* § 11. Same — IV. Marriage. Growing out of the right of ward- ship was the jus maritagii or right to dispose of the ward in mar- si 2 Mln. Insts. 71, 76, 78. 32 2 Min. Insts. 72 ; 2 Bl. Com. 65 ; 1 Washburn, Real Prop. 23. 24. 33 2 Jlin. Insts. 72; 2 Bl. Com. 63; Gilbert, Ten. Introd. xlx, xx. 8*2 Min. Insts. 72; 2 Bl. Com. 67 et seq. ; 1 Th. Co. Lit. 132, note (1), 288. (10) Ch. 1] MILITARY TENURES ABOLISHED. § 14 riage, or, if the ward declined, the right to demand the value of the marriage ; that is, as much as any one would bona fide give the lord for such an alliance. If the ward contracted a marriage without the lord's consent the forfeiture was doubled. This was at first confined to female heirs, for which there was this much show of reason, that it intimately concerned the lord's welfare and safety that a female vassal should marry one friendly, and not hostile, to him.^^ § 12. Same — V. Fines for Alienation. As already shown, it was not originally permitted a vassal to dispose of his feud to an- other, substituting a new tenant, perhaps inimical to the lord, with- out the latter's assent. In process of time the lords began to make merchandise of their consent in such cases, and would give it only when paid for at a round rate. This operated as a very burdensome restraint upon alienation, and was abolished by the statute quia emptores, 18 Edw. I, save as to the king's tenants in capite. As to the latter, the practice continued (the money value of the lord's consent being fiijally fixed at one-third of one year's profits) until A. D. 1660, when all military tenures and tenures in capite, with their oppressive incidents, were finally abolished by an act of Parlia- ment converting all tenures save frankalmoign, grand sergeanty and copyhold, into free and common socage. ^° § 13. Same — VI. Escheat for Lack of Heirs. An escheat oc- curred wherever the tenant of an hereditary fief or feud died, leav- ing no blood relations capable of inheriting it, or where the blood of the tenant by reason of his conviction of treason or felony be- came attainted or corrupted so as to be incapable of transmitting in- heritance.^'' § 14. Conversion of Military into Socage Tenures. The bur- densome incidents above described, though originally applicable to military tenures alone, soon came for a while to be applied to socage tenures also. But long before the abolition of the military tenures by statute, 12 Car. II, c. 24 (A. D. 1660), the socage tenures had been stripped of these shackles, and had been freed from most of the burdens imposed by the feudal policy. On this account the tenure in free and common socage became the favorite tenure of lands, supplanting in considerable degree the tenure in chivalry. And when, upon the accession of Charles II, the Parliament determined 36 2 Min. Insts. 73; 2 Bl. Com. 70. 36 2 Min. Insts. 74 ; 2 Bl. Com. 72, 77. 3T2 Min. Insts. 73; 2 Bl. Com. 72, 73. In the United States, generally, the doctrine is that conviction of treason or felony does not work a corrup- tion of blood, nor a forfeiture of estate — at least for a longer period than the life of the felon. Post, § 785 ; 2 Min. Insts. 560. (11) § 15 TENURES IN UNITED STATES. [Ch. 1 to abolish the military tenures, the easiest method of doing so was to convert them into tenures in free and common socage, which was done accordingly.'* § 15. Tenure in the United States Generally. The only feudal tenure ever recognized in this country was that of free and common socage, that being the tenure upon which all the grants of colonial land by the crown were based. And, at the time these grants were made, the socage tenure had already been stripped of all its bur- densome incidents, so that they never existed here.'" But after the Revolution even the shadowy subservience to sovereignty evidenced by the socage tenure became distasteful, and many of the colonies, upon attaining their independence, at once passed acts, either abolishing all tenure in terms or declaring their lands for the future to be held upon an allodial (in contradistinc- tion to feudal) tenure, which is merely another way of saying that tenure is abolished.*" 38 2 Min. Insts. 74. ss 1 Washburn, Real Prop. 39, 40. *o 1 Washburn, Real Prop. 40, 41. Socage tenure is presumed to exist still in Pennsylvania, New Jersey, and South Carolina, but in no other states. 1 WashburnTEeal Propr41 ; Gray, Ferpet t§ 25-28. (12) DIVISION II. THE SEVERAL KINDS OF REAL PROPERTY, AND THEIR INCIDENTS. § 16. Real Property Corporeal and Incorporeal. Real prop- erty may consist in lands, tenements, and hereditaments, the last term signifying property which may be inherited by the heir of a deceased owner. *^ Although this is not a logical classification, it is the usual one and for that reason is adhered to.*^ Of these terms the least comprehensive is "land," including only land itself, and such tangible, visible things as are attached thereto or found therein, such as houses, trees or crops growing thereon, mineral under the surface, etc. — in short, everything fixed upon it and everything belonging or attached to it, above and below the surface, ab solo usque ad coelum.*^ The term "tenement" is somewhat more comprehensive than "land," for it may include intangible, invisible rights in the land of another (such as a right of way over another's land) as well as corporeal property itself. It is a term of feudal origin, and includes everything of a permanent nature, capable of being holden of a feudal superior, for example, lands, houses, ways, franchises, commons, etc.^* 41 2 ilin. Insts. 4 ; 2 Bl. Com. 15. *2 It is illogical, because the gi-oiinds of classification are not identical. The terms "lands" and "tenements" denote the physical nature of the prop- erty, while the term "hereditaments" denotes the quantity of interest, as that the owner possesses an estate of inheritance, and not merely a life interest or one smaller still. 43 Post, § 17 ; 2 Min. Insts. 4 ; 2 Bl. Com. 17 et seq. ; 1 Th. Co. Lit. 197 et seq. ; 4 Kent, Com. 468 ; 2 Washburn, Real Prop. 625. There are several subordinate terms descriptive of different sorts of land holdings, of which it will suffice to mention more specifically the following: The term "messuage" includes the dwelling, garden and curtilage and (probably) the orchard ; and "house" (or "mansion house" or "dwellhig house") has much the same meaning. 2 Min. Insts. 5 ; 2 Bl. Com. 19, note (7) : 1 Th. Co. Lit. 21.5. note (35). The term "curtilage" denotes the space included within the general fence which immediately surrounds the principal messuage, embracing the out- buildings and yard closely adjoining a dwelling. 2 Min. Insts. 5 ; 1 Chitty, Gen. Pr. 17.j. 44 2 Min. Insts. 5; 2 Bl. Com. 16, 17; 1 Th. Co. Lit. 219. It is, of course, not to be confounded with the same term applied in modern times to houses built for the purpose of renting them. Similarly, the term "tenant," as now used, is to be distinguished from the same term as used under the feudal system. (1.3) § 16 CORPOREAL AND INCORPOREAL RIGHTS. The term "hereditament" does not denote the character of the property owned, but rather the estate or interest possessed by the owner. Any property which, upon the owner's death, may go to his heirs (not to his personal representative) is a hereditament.*^ There are but few instances of personalty possessing this pe- culiarity. One instance is that of heirlooms, such as family por- traits, plate, etc., which in England are sometimes by local custom heritable by the heir.*" Another example may be found in the case of annuities and corodies, which, if expressly limited to one and his heirs, though personal in their nature, descend to the heir, not to the personal representative.*'' But, save for these, and perhaps a few other, instances of per- sonal hereditaments, they consist in the main of lands and tene- ments. Hence the term "hereditaments" is often used loosely as synonymous with "lands and tenements," regardless of the quan- tity of interest possessed by the owner — in other words, as synony- mous with "real property," or "tenements." Technically, however, it is synonymous with "estates of inheritance." In this loose sense of the word, rather than in its technical sense, real property may be properly divided into corporeal and incor- poreal hereditaments ; the former comprehending visible and tangi- ble property, corresponding to the term "lands" above described, and the latter including invisible and intangible rights issuing out of lands, or concerning, annexed to, or exercisable upon or within the same, such as a right of way over the land of another, a right to drain one's land through those of another, etc. These will be examined more fully in the following chapters.*^ *B2 Min. Insts. 5, 6 ; 2 Bl. Com. 17; 1 Th. Co. Lit. 219. See Doe v. Allen, 8 T. R. 497 ; Metropolitan Ry. Co. v. Fowler, 1 Q. B. 165, 171, [1893] App. Cas. 416. 46 3 Min. Insts. 68, 70; 2 Bl. Com. 428; Co. Lit. 18b, 185b. Heirlooms are not generally regarded in the United States as devolving upon the heir of the deceased ovcner, but upon his personal representative, except, perhaps, in case of chattels intimately associated with the land. See 3 Min. Insts. 70. i-r Post, § 62; 2 Min. Insts, 37, 38. 48 See 2 Min. Insts. 6 et seq. ; 2 Bl. Com. 17 et seq. ; 2 Th. Co. Lit. 199, 200. (14) CHAPTER II. CORPOREAL HEREDITAMENTS OR LANDS. 17. Land. 18. Equitable Conversion. 19. Partnership Realty. 20. Land Belonging to a Corporation. 21. Buildings upon Land — Single Story or Room. 22. Fixtures. 23. Definition of Real Fixtures. 24. Circumstances from Which Intention to Annex Permanently may be Deduced. 25. I. Express Agreement as to Permanency of the Annexation. 26. II. Character of the Annexation. 27. III. Adaptation of the Chattel for Use with the Freehold. 28. IV. Nature and Purpose of the Fixture. 29. 1. Trade Fixtures. 30. 2. Agricultural Fixtures. 31. 3. Manure as a Fixture. 32. 4. Domestic and Ornamental Fixtures. 33. V. Interest of Annexor in the Land. 34. 1. Annexor the Fee-Simple Owner of the Land. 35. 2. Annexor Tenant of the Land for Years or at Will. 36. 3. Annexor Tenant of Land for Life. 37. Fructus Naturales and Fructus Industriales. 38. Fructus Naturales — Trees, Grass, etc., Growing upon the Land. 39. Estovers. 40. Trees, etc., after Severance. 41. Fructus Industriales — Growing Crops — General Nature and Incidents. 42. Emblements. 43.. Requisites for Emblements — Enumeration. 44. 1. Tenant's Estate Expected to Terminate before Harvest. 45. Eight to Away-Going Crops by Local Custom. 46. II. Tenant's Estate Terminated by His Own Act or Default. 47. III. Crops Not Planted by Tenant 48. IV. Tenant's Estate Terminated by Title Paramount. 49. Minerals and Mines. 50. Water and Water Rights — Corporeal Rights. 51. I. Surface Streams. 52. 1. Rights of Upper Riparian Owners as against Lower Propria tors. 53. A. Appropriation of Water. 54. B. Pollution of Water. 55. 2. Rights of Lower as against Upper Proprietors — Obstruction of Flow. 56. 3. Public or Navigable Waters. 57. 4. Private or Unnavigable Waters. 58. IT. Subterranean Streams. 59. IIT. Percolating Waters. 60. Ice. 61. Petroleum Oil and Natural Gas. (15) § 17 LAND. [Ch. 2r § 17. Land. In its ordinary acceptation, land embraces not only a particular portion of the earth's surface, but also all that is below or above that surface, ab solo usque ad_coelmu. Hence, in the absence of stipulations to the contrary, a conveyance of "land" will pass all houses, trees, crops, water, etc., resting upon or grow- ing out of the soil, and all minerals or other valuable things found beneath it, as well as all rights to the space above it.^ Thus the owner of land commits no tort if he cuts ofiE the limbs of trees overhanging his land, though the trees themselves grow upon the land of another, since he is entitled to a free approach to his land from above. ^ So, also, no one may shut off the light from above, illuminating a house below through a skylight, unless- such right has been granted by the owner of the land expressly or by implication.^ On the same principle, the owner of land is entitled to damages for trespass, or to an injunction, or to damages in condemnation proceedings, if a telegraph or telephone company stretches its wires over his land.* But, notwithstanding this general rule, cases sometimes arise where, by special agreement, the ownership of the surface and of the things above or below the surface may be in different per- sons. Thus, a grantor may convey the surface of the land, re- serving the right to all minerals under the surface, or vice versa.'^ Such a division of ownership creates two separate estates or in- 12 Min. lusts. 4; Crews v. Pendleton, 1 Leigh (Va.) 305, 19 Am. Dec. 7.50; Broom's Legal Maxims, 290; Goddard v. AYiucliell, 86 Iowa, 71, 52 X. W. 1124, 17 L. R. A. 788, 41 Am. St. Rep. 481. 2 Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep. .j37 ; Graudona v. Lot- dal, 78 Cal. 611, 21 Pac. 360, 12 Am. St. Rep. 121. But he is not the owner of the limb, nor of the fruit attached thereto. They belong to the owner of the land from whose surface the trunli of the tree springs, though its roots run into another's soil. Hoffman v. Armstrong, supra ; Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728; Skinner v. Wilder, 38 Vt. 115, S8 Am. Dec. (;45. If the tree springs from the bouudary line, it belongs to the owners of the two tracts as tenants in common, at least prima facie. Hoffman v. Arm- strong, supra; Dubois v. Beaver, 25 N. Y. 123, 82 Am. Dee. 326; Skinner V. ^YiIder, supra; Lyman v. Hale, supra; Holder v. Coates, 1 Moodv & M 112. 3 Letts V. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177 ; Lapere V. Luckey, 23 Kan. 534, 33 Am. Rep. 196. See Hazelton v. Putnam, 3 Pin (Wis.) 107, 54 Am. Dec. 162; Elliott v. Rhett, 5 Rich. Law (S. C.) 405 57 Am. Dec. 750, note. ' i Board of Works v. United Telephone Co., 13 Q. B. Div. 904. B Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., 105 Va. 574. 591, 54 S. E. 593; Lillibridge v. Lackawanna Coal Co.. 143 Pa 293 ""> Atl 1035, 13 L. R. A. 627, 24 Am. St. Rep. .544. In such cases, while' tl'ie" mine- owner may not remove the necessary subterranean support of the surface (IC) Ch. 2] EQUITABLE CONVERSION. § 18 terests in the same land, not a common interest like that of joint- tenants or tenants in common. They are the owners of distinct subjects of entirely different natures. Hence the title to the free- hold of the one, either in the surface or in the minerals, cannot be acquired by the other merely by his long-continued ownership of his own property ; ° and the purchase of the outstanding title by the one does not enure to the benefit of the other, as it would if they were joint tenants or tenants in common.' The use to which the land is put, or its form, is immaterial. It may be in the form of meadows, pastures, arable land, building lots, woods, moors, parks, marshes, lakes, etc. ; but it is always land. Hence, if one were about to convey a lake or a pond, it would not be proper to describe it as so many acres of water (for that would pass only the right of fishery therein), but as so many acres of land covered with water.* § 18. Same — Equitable Conversion. The equitable doctrine of conversion sometimes demands that money should be regarded for certain purposes as though it were land, and vice versa. The doc- trine is based upon the general maxim of courts of equity that "that is to be regarded as done, which ought to be done," and arises in cases where money is agreed or directed to be invested in land, or where land is agreed or directed to be sold and the proceeds to be devoted to a particular purpose. In such cases, if the rights of third persons, or some public policy, or a supervening agreement or di- rection of the parties interested do not intervene, equity is accus- tomed to impress at once upon the property that character which it is ultimately bound to assume when the agreement or direction shall have been carried out.' Thus, a testator directed $5,000 to be invested in land and divid- ed among certain relatives, with the condition precedent that none of them should marry into a -certain family, and if they should their the surface owner must not impose additional burdens by the erection of buildings to be supported by the mineowner. 1 Washburn, Real Prop. 8. 6 Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., 105 Va. 574, 592, 54 S. E. 593. 7 Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., 105 Va. 574. 592, 54 S. E. 593. It is to be observed, however, that the prima facie pre- sumption is in favor of the owner of the surface, and is against such a sever- ance. Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., supra. 8 2 Min. Insts. 6 ; 2 Bl. Com. 17, 18 ; 2 Th. Co. Lit. 199, 200. » 2 Min. Insts. 221 ; Phillips v. Ferguson, 85 Va. 509, 8 S. E. 241, 1 L. R. A. 837, 17 Am. St. Rep. 78 ; Taylor v. Benham, 5 How. 233, 12 L. Ed. 130 ; Given v. Hilton, 95 U. .'I. .")91, 596, 24 L. Ed. 458; Greenland v. Wa^^eU, 116 N. Y. 2.34, 22 N. E. 367, 15 Am. St. Rei). 400; Fletcher v. Ashburner, 1 Brown, Ch. 497, 1 WIi. & Tud. Lead. Cas. Eq. 1118, 1123, 1157. Minor & .W.Real Pkop.— 2 (17) § 18 EQUITABLE CONVERSION. [Ch. 2 shares to be cut off, and $3 given them instead. One of them did marry into the prohibited family. It was held that while, in gen- eral, money bequeathed to be invested in land is considered in equi- ty as land, yet in this case, since the condition precedent had been violated by one of the devisees, she could not take, and since, there- fore, as to her share no conversion occurred, that her share remain- ed money, and as such went to the residuary legatee.^" Similarly, if a contract be made for the sale and conveyance of land, the vendor is immediately regarded in equity as the trustee of the land for the purchaser, and the purchaser as the trustee of the purchase money for the seller. The vendee's interest, although no conveyance of the title has been made, is treated in equity as real estate, and is devisable and descendible accordingly ; while the ven- dor's interest is in equity personalty, and passes and is disposed of as such.^^ If the land appreciates or deteriorates in value before the con- veyance is made to the vendee, the benefit accrues to, or the loss falls upon, him, and not upon the vendor,^^ unless the conveyance is delayed by the vendor's fault beyond the proper time, in which case a loss from deterioration in value falls upon the vendor, as, for example, where the delay is caused by the vendor's bad or defective title. ^^ § 19. Same — Partnership Realty. One of the most prominent instances of equitable conversion arises in case of lands held by a partnership, purchased with partnership funds and for partnership purposes. If land is thus purchased by a firm, though at law the partners are joint tenants or tenants in common of the land, there is no doubt but that in equity a conversion occurs, and the land is to a certain extent regarded as though it were part of the personal assets of the firm. There is, however, some question as to the extent of the con- version. 10 Phillips V. Ferguson, 85 Va. 509, 8 S. E. 241, 1 L. R. A. 837, 17 Am. St. Rep. 78. In Effinger v. Hall, 81 Va. 94, 107, it was held, e converse, that land directed by will to be sold is at once in equity stamped as personalty, but that those entitled thereto might elect that it retain its original form, and thus prevent the actual conversion. See 3 Pomeroy, Eq. Jur. § 1175. 112 Min. Insts. 221; Coldiron v. Asheville Shoe Co., 93 Va. 364, 25 S. E. 238; Craig v. Leslie, 8 Wheat. 577, 4 L. Ed. 460. See 3 Pomeroy, Eq. Jur. § 1150 et seq, ; 2 Story, Eq. Jur. § 1212 et seq. 12 Paine v. Meller, 6 Ves. Jr. 349; Reed v. Lukens, 44 Pa. 200, 84 Am. Dec. 425; Brewer v. Herbert, 30 Md. 301, 96 Am. Dec. 582; 15 Ilarv. Law Rev. 733. But see 9 Harv. Law Rev. 106; Huguenin v. Courtenay, 21 S. C. 403, 53 Am. Rep. 688. 13 Christian v. Cabell, 22 Grat, (Va.) 82; Phinizy v. Guernsey, 111 Ga. 34G, 36 S. E. 796, 50 L. R. A. 680, 78 Am. St Rep. 207. (18) Ch. 2] EQUITABLE CONVERSION. § 19 Some of the authorities hold that land thus purchased is con- verted into personalty only for the purpose of winding up the part- nership affairs and paying off its creditors, and that, after that is done, the remaining interests therein of the individual partners are in the nature of interests in land, and not personalty.^* But the English doctrine, and the view in some of the states, is that the land so purchased is converted out and out into personalty for all purposes, not only as between the members of the partner- ship, respectively, and as to the creditors of the firm, but also as between the representatives of a deceased partner and those sur- viving. In such case, although the legal title to the land be partly or wholly in the heir or devisee of the deceased partner, yet in equity it is still deemed partnership assets, in respect of which the firm is cestui que trust and, the holder of the legal title a mere trus- tee. Hence upon the death of one of the partners, whereby in gen- eral the firm is dissolved, the survivor or survivors become entitled, as representing cestui que trust, to have the land sold, and the proceeds (after paying the debts of the firm) divided between the surviving partners and the personal representative (not the heir) of the deceased partner.^" So, also, under the latter view, the consort of such deceased part- ner would not be entitled to dower or curtesy in the lands thus purchased and held by the firm, since dower and curtesy can only be had in the deceased consort's real estate.^" But under the former view, which is the one most widely adopted in this country, such consort would take dower or curtesy in such of the partnership land as remained after the settlement of the part- nership affairs.^'' It must be observed, however, that if two or more persons, in con- templation of a partnership, as for milling, mining, or farming, purchase land, to be used for such business, on the individual re- sponsibility of the partners, and not with partnership funds, nor 1* Riddle V. Whitehill, 135 U. S. 621, 635, 10 Sup. Ct. 924, 34 L. Ed. 282 ; Shearer v. Shearer, 98 Mass. 107; Lang v. Waring, 25 Ala. 625, 60 Am. Dec. 533 ; Foster's Appeal, 74 Pa. 391, 15 Am. Rep. 553. 15 2 Min. Insts. 139 et seq. ; Attorney General v. Hubbuck, L. R. 13 Q. B. Div. 275, 289 ; Phillips v. Phillips, 1 My. & K. 649 ; Randall v. Randall, 7 Sim. 271; Wheatley v. Calhoun, 12 Leigh (Va.) 272, 37 Am. Dec. 654; Parrish v. Parrish, 88 Va. 529, 532, 14 S. B. 325; Brooke v. Washington, 8 Grat. (Va.) 255, 56 Am. Dec. 142 ; Sigourney t. Munn, 7 Conn. 11 ; Gal- braith v. Gedge, 16 B. Mon. (Ky.) 631; Andrews v. Brown, 21 Ala. 437, 36 Am. Dec. 252. But see Davis v. Christian, 15 Grat. (Va.) 11, 36. 16 Post, § 247; 2 Min. Insts. 140; Parrish v. Parrish, 88 Va. 529, 532, 14 S. E. 325 ; Howard v. Priest, 5 Mete. (Mass.) 582 ; Sumner v. Hampson, 8 Ohio, 328, 32 Am. Dec. 722 ; Duhring v. Duhring, 20 Mo. 174. II Tiffany, Real Prop. § 187. (19^ § 19 EQUITABLE CONVERSION. [Ch. 2 on partnership responsibility, or where the purchase is collateral to their partnership business, and not as a means of carrying that on, the land is not converted into partnership stock, but retains its character of realty. To raise a partnership trust by such a pur- chase, it must be made at the time with partnership funds or on partnership responsibility, as well as for partnership purposes.^* Thus, where W. and C. agreed to purchase two hundred acres of land on which was a mill, and, having done so, commenced and carried on the business of milling as partners for several years, it was held that there was no conversion into personalty, but that they were tenants in common of the land, and their wives entitled to dower.^* But even though the purchase money, or an installment thereof, should' chance to have been paid out of the social funds, if it be paid for and on behalf of one of the individual partners, this would not raise such a trust, nor give the firm title to anything more than reimbursement. In such case, dower or curtesy would accrue to the consort of the deceased owner.^" It seems hardly necessary to mention that this conversion arises only where the purchasers are partners at the time of the pur-^ chase, and operates only so long as the lands constitute a portion of the partnership property. As soon as the firm disposes of the land it loses its character (in equity) of personalty, and resumes the character of land. Hence, where two parties entered into the business of buying and selling lots, taking and giving deeds there- for as tenants in common, and lands were sold accordingly in the lifetime of both partners, it was held that by such sale the lots were withdrawn from the joint stock and that, upon the death of one of the partners, his widow might claim dower in the lands thus sold.^^ Lastly, it should be observed that, even where the land has been purchased with partnership funds and for partnership purposes, the theory of conversion may be repelled, not perhaps as against the creditors of the firm, but as to the partners themselves, and their heirs, personal representatives and consorts, respectively, by any clear and express stipulation to the contrary, contained in the ar- ticles of partnership, or made at the time of the purchase or after- wards.^^ 18 2 Min. Insts. 140. 141; 1 Washlmrn, Real Prop. 161; Wheatley v. C.tI- houn, 12 Leigh (Va.) 264. 3T Am. Dec. 0.-i4 ; Hale v. Phimmer, 6 Ind. 121. 18 Wlieatley v. Calhoun. 12 Leisli (Va.) 264, 37 Am. Dec. 6.>1. 20 2 Jlin. Insts. 141 ; Wheatley v. Calhoun, 12 Leigh (Va.) 264, 273, 37 Am. Dec. 634. ziMarkham t. Jlerrett. 7 How. (Miss.1 437, 40 Am. Dec. 76; "Wheatley v. Calhoun, 12 Leigh (Ya.) 264, .ST Am. Deo, 654 ; 1 Washburn, Real Prop. 101- 22 2 Min. Insts, 141; 1 Greenleaf, Cruise, 180. (20) (Jil. 2] BUILDINGS APAKIMENTS. § 21 § 20. Same — Land Belonging to a Corporation. Land belong- ing to a corporation differs in no respect from land belonging to private individuals, so far as the interest of the corporation itself therein is concerned. But the interest of a stockholder in the land of his corporation, as represented by his certificaite of stock, though by some of the older authorities regarded as real estate,-^ is, according to the mod- ern view (even independently of statute), nothing but personalty, like any other shares of stock. Such shares are indeed only evi- dences of a right to claim a proportionate part of the company's profits, or, in the event of a dissolution, a proper share of the as- sets. The land, buildings and structures of a railroad, telegraph or canal company, or other corporation, even a land company, as well as all its other property, constitute merely the instruments whereby the stock is made to produce a profit, and belong for that purpose not to the individual corporators, but to the corporation itself.^* § 21. Buildings upon Land — Single Story or Room. Buildings erected upon land, whether of timber, brick, or stone, without re- gard to the use to which the structure is to be put, are generally considered part of the realty, though the materials of which they are composed are personal property at the time of their adaptation to the purpose.^" But the ownership of a house erected upon land may sometimes be severed from that of the land by express stipulation or implied understanding, in which case the house is to be regarded as per- sonalty. Thus a building erected upon the land of another, by the latter's license and consent, is regarded as personalty belonging to the person who erected it, and does not pass to a purchaser of the land, unless he is a purchaser without notice of the severence of 23 2 Min. Insts. 150; Price v. Price, 6 Dana (Ky.) 107. See Park, Dower, 113. 24 2 Min. Insts. 150; Angell & Ames, Corp. § 557; Bligli v. Brent, 2 Yo. & Col. (Exch.) 268, 294 ; Bradley v. Holdsworth, 3 M. & W, 423 ; Bank of Wal- tham V. Inhabitants of Waltham, 10 Mete. (Mass.) 334. 25 2 Min. Insts. 4; 2 Bl. Com. 17; Mott v. Falmet; .. 1 N. Y. 564; Coombs V. Jordan, 3 Bland (Md.) 284, 22 Am. Dec. 236 ; TJlpsEy v. Borgmann, 52 Wis. 256, 9 N. W. 158, 38 Am. Rep. 735. It would seem that a building merely resting upon the surface of the ground, and not securely attached thereto by foundations, etc., is not to be regarded as part of the land, but as per- ' sonalty merely. Indeed, In case of trade fixtures, the same may be some- times said of permanent buildings whose foundations are in the ground ; the tenant being given the right to remove them at the end of the term as being his property, and not part of the land. Post, § 29; 2 Min. Insts. 609 et seq. ; Elwes V. Maw, 3 East, 38; Vanr Ness v. Pacard, 2 Pet. 142, 146, 7 L. Ed. 374. '~ ~~ (21) ^:,, § 21 BUILDINGS APARTMENTS. [Ch. 2 the ownership ; and the action of trover will lie for the house if the owner of the land refuses to permit its removal.^* It is otherwise if the owner of the land has never consented to the erection of the building thereon." Hence if one, through ig- norance of his title or by mistake, builds upon the soil of another, he can neither claim the building itself nor compensation for his materials and workmanship.^* For analogous reasons, if a building is placed upon mortgaged land, with the consent of the mortgagor, but without the consent of the mortgagee, it becomes part of the land and is covered by the mortgage ; an agreement to the contrary being immaterial if the mortgagee be not a party to it. And a purchaser of the prop- erty at a sale under the mortgage acquires title to the building as well as the land, though he has notice of the claim of the third par- ty to the building, as a part of the protection due to the mort- gagee." On the other hand, a dwelling house may be real estate and owned in fee simple, though its owner may have no further in- terest in the land upon which it stands than the right to keep it there permanently and enjoy the use of it.^° So, also, one may possess an estate in a single story or room in a house, or even in part of a room, and may be seised thereof,^^ and may maintain 2 6 Russell V. Richards, 11 Me. 371, 26 Am. Dec. 532, note; Fifield v. Bank. 148 111. 163, 35 N. E. 802, 39 Am. St. Rep. 166, note. But the sale of the land by the owner would operate a revocation of the license to keep the house there, and it must be removed within a reasonable time thereafter, unless an- other license is obtained from the new owner. Dame v. Dame, 38 N. H. 429, 75 Am. Dec. 195 ; Russell v. Richards, supra. 27 Kingsley v. McFarland, 82 Me. 231, 19 Atl. 442, IT Am. St. Rep. 473. note ; Crest v. Jack, 3 Watts (Pa.) 289, 27 Am. Dec. 353 ; West v. Stewart, 7 Pa. 122. In such case it can only be removed by the party erecting it if he is a tenant of the land and the building is a removable fixture. Post, § 33 et seq. ; 2 Min. Insts. 009 et seq. ; Elwt's v. Maw, 3 East, 38. And It is not a removable fixture, if the terms of the lease require him to erect It, and there is no agreement for its removal by the lessee. Peirce v. Grice 92 Va. 767, 24 S. E. 392. 28 1 Washburn, Real Prop. 4. See Crest v. Jack, 3 Watts (Pa.) 239, 27 Am. Dec. 353 ; West v. Stewart, 7 Pa. 122. 2 Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St Rep. 819. 3 1 Washburn, Real Prop. 7; McMillan v. Solomon, 42 Ala. 356, 94 Am. Dec. 654; Howard v. Fessenden, 14 Allen (Mass.) 124; Dame v. Dame, 38 X. H. 429, 75 Am. Dec. 195 ; Ingalls v. St. Paul, M. & M. Ry. Co., 39 Minn 479, 40 N. W. 524, 12 Am. St. Rep. 676. 31 Co. Lit. 48b; 1 Preston, Est. 214; 1 Washburn, Real Prop. 7; Corbett V. Hill, L. R. 9 Eq. 671 ; Doe v. Burt, 1 T. R. 701 ; Humphries v. Brogden, 12 Ad. & El. (N. S.) 747, 756; Com. v. Hersey, 144 Mass. 298, 11 N. E. 116; Proprietors of South Congresational Meetinghouse in Lowell v. City of Lowell, 1 Mete. (Mass.) 538 ; Cheeseborough v. Green, 10 Conn. 318, 20 Am. (22) Ch. 2] FIXTURES. § 22 an action of ejectment therefor if deprived of its possession; ^^ and this, although, if the house or room be destroyed, all interest of the owner thereof in the land on which it stood be thereby lost.^° If we take the reverse case and suppose the owner of the land to appropriate building materials belonging to another, without the latter's assent, and to use such materials in the erection of a build- ing on the former's land, the general rule is that the title to such materials (now composing the structure) vests in the owner of the land, because the materials themselves have lost their identity, though the owner of the materials of course retains his right of action for their value against the owner of the land and building.^* It is otherwise as to chattels which, still preserving their original ; identity, are annexed to a building by the owner thereof without the consent of the owner of the chattel. ^^ § 22. Fixtures. Things originally real in their nature may, by the mode of dealing with them, become personalt}^, and things originally personal may become realty. Thus part of the soil may be taken to make brick, or stone m.ay be taken from a quarry, or growing trees may be severed from the land for lumber. So long as either of these are part of, imbedded in, or attached to, the land they are realty, but as soon as they are detached they become per- sonalty. Yet all of them may once more be converted into realty by being used in the erection of a building 'on that or other land. But though personalty may thus be converted into realty by be- coming fixed or attached to land or to buildings thereon, it does not follow that such will always be the case. Indeed, there is a large class of personal things which, when attached to land or buildings, becomes realty or remains personalty, according to the circumstances of the case, or according to the persons as between whom the question arises. Such articles are termed "fixtures,'' and the main questions that arise with respect to them relate to the right of the original owner of such chattels to sever them again from the land and restore to Dec. 396 ; McMillan v. Solomon, 42 Ala. 356, 04 Am. Dec. 654 ; Mott v. Palmer, 1 N. T. 564 ; White v. White, 16 X. J. Law, 202, 31 Am. Dec. 2ffi~" "' ' 3 2 Doe V. Burt, 1 T. R. 701; Otis v. Smith, 9 Pick. (Mass.) 298. 3 3 Stockwell V. Hunter, 11 Mete. (Mass.) 448, 45 Am. Dec. 220. 34Peirce v. gndJ aril. 22 Pick. (Mass.) 559, 33 Am. Dec. 764; Woodruff & Beach Iron Works v. Adams, 37 Conn. 233; Cross ly. Marsto n. 17 Vt. 533, 44 Am. Dec. 353 ; Lansing Iron & Engine Works v. Walker,"^l Mich. 409, 51 N. W. 1061, 30 Am. St. Rep. 488. See Jackson v. Walton, 28 Vt. 43; Michigan Mut. Life Ins . Co. v. C ronk, 93 Mich. 49, 52 N. W. 1035. 3 5 Cochran v. Flint, 67 N. H. "514 ; Gill v. De Armant, 90 Mich. 425, 51 N. W. 527; Gfeneral Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460, 42 Atl. 101. (23) § 22 FIXTUEES, [Ch. 2 them their character of personalty after the objects which induced him primarily to annex them have been accomplished, or when it becomes advantageous to him to sever the ownership. This use of the term "fixtures" involves an ambiguity, because it is uncertain whether in using the term one is referring to chattels annexed to land where the ownership of the chattels may subse- quently be separated from that of the land, or where it may not be so separated. Indeed, it is not seldom used by judges as well as text-writers in these two opposite senses. The student, there- fore, should take care to observe, in reading cases and expositions upon the subject, what precise meaning is attached to the term by the expositor. Thus for the most part any confusion of thought will be avoided, despite the confusion of terms.'" The confusion thus introduced into the terminology of the sub- ject may be obviated, to some extent at least, by denominating such fixtures as retain their character as personalty "personal fix- tures," and those which have become inseparably part of the land "real fixtures." " § 23. Same — Definition of. Real Fixtures. The subject of fix- tures may be perhaps best discussed by defining real fixtures, and developing the controlling principles from that definition. Real fixtures consist of things, originally chattels personal, which have been annexed to land, or to things permanently attached to land, by the owner of the chattels or with his assent, and with the intention to make the annexation permanent. All others are per- sonal fixtures. '' 1. In the first place, thatthe things annexed to the land must, be- fore their annexation, have been personal chattels, is a self-evident proposition, needing no elucidation. '' 2. In the second place it is to be observed from the definition that the chattels may be annexed either to the land itself (as in some instances of temporary structures or trade-buildings "") or 36 2 Min. Insts. 607, 608. See Colegrove v. Dios Santos, 2 B. & Cr. 76; Hollen V. Runder, 1 Or., Mees. & Rose. 276 ; Sheen v. Rickie, 5 M. & W. 181 ; Green v. Phillips, 26 Grat. (Va.) 752, 759, 21 Am. Rep. 323 ; TeafE v. Hewitt! 1 Ohio St 511, 59 Am. Dec. 634 ; Huston v. Clark, 162 Pa. 435, 29 Atl. 866 ; Tifft_v^ T;Torton. 53 N. Y. 377, 13 Am. Rep. 537; Carpenter ■ft Walker 140 MasSni6, 5 N. B. 160. 3 7 See Hopkins, Real Prop. 11. 38 See 2 Min. Insts. 607 ; TeaflC v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634 ; Green v. Phillips, 26 Grat. (Va.) 752, 759, 21 Am. Rep. 323. 3 9 2 Min. Insts. 608; Green v. Phillips, 26 Grat. (Va.) 752, 750, 21 Am Rep. 323. 40 Post, § 29 et seq. ; 2 Min. Insts. 609; Elwes v. Ma we, 3 East, 38; Van Ness V. Pacard, 2 Pet. 142, 146, 7 L. Ed. 374. (24r 'Ch. 2] FIXTURES. § 23 to structures or other things already permanently attached to the land. It is not necessary that the chattel be itself in contact with the soil; it may be attached to the walls or floors of a house. ''^ 3. In the next place, it is in general essential, in order that the fixture may be a real fixture, that the chattel should have been an- nexed by the owner thereof or with his consent, since persons with- out an interest have usually no right to alter the nature of another's property.*^ An exception to this principle has already been pointed ■out in the case of materials taken for the construction of a building without the consent of the owner of such materials, inasmuch as "they have lost their identity.^' 4. The'^Ssent oTTlie owner of the land or building to the an- nexation is immaterial. Even without it the chattel becomes a real fixture and part of the land itself, provided the other require- ments exist, though the owner of the land and annexed chattel may, in the exercise of his jus disponendi over all his property, sever them if he chooses, and thus restore to the chattel its original char- acter.** 5. The most important element of the definition is the intention with which the annexation is made. In order that it may be a real fixture and become part of the land itself, it is essential that the ■chattel should have been annexed permanently ; that is, without in- tention to remove it or sever the connection between it and the land.*' This intention, however, is to be drawn from the surround- ing circumstances or the express agreement of the parties, not from their mere declarations nor from idle conjecture.** *i 1 TifEany, Real Prop. § 231. 42 Gill V. De Armant, 90 Jlich. 42.5, 51 N. W. 527 ; Cochran v. Flint, 57 N. H. 514; General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460, 42 Atl. 101 ; 1 Tiffany, Real Prop. § 231. 43 Ante, § 21. •«4 Sampson v. Oraham, 96 Pa. 403 ; HarrlsV;_gcovel, 85 Mich. 32, 48 N. W. 173; Franks v. Cravens, 6 W. Va. 185; rfensley v. Brodie, 16 Ark. 511; Dudley v. Foote, 63 N. H. 57, 56 Am. Rep. 489; Leonard v. Clough, 133 N. T. 292, 31 N. E. 93, 16 L. R. A. 305. 4 5 Holland v. Hodgson, L. R. 7 C. P. 328; Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 6-34; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; McRe%,y^i^entral_jrat. Bank, 66 N. Y. 489 ; Fifleld v. Farmers' Nat. Bank, 148 111. 163, 35 N. E. 802, 39 Am. St. Rep. 166; Snedeker v. Warring, 12 N. X. 170; State Sav. Bank v. Kercheval, 65 Mo. 683, 27 Am. Rep. ^ITT- 46 McKeage v. Han over J 'lre Ins. Co., 81 N. T. 38, 37 Am. Rep. 471 ; State Sav. Bank v. Ker cheval , 65 Mo. 682, 27 Am. Rep. 310; "Wadleigh v. Janvrin, 41 N. H. 503, 77 SHTDec. '780; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; Catasauqua Bank v. North, 160 Pa. 308, 28 Atl. 694 ; Snedeker v. Warring, 12 N. Y. 174. ' ' (25) § 24 INTENTION TO ANNEX. [Ch. 2 § 24. Same — Circumstances from Which Intention to Annex Permanently may be Deduced. The most important of the cir- cumstances from which this intention is deduced are the following : (1) Express agreement as to the permanency of the annexation ; (2) the character of the annexation as whether the severance of the chattel would tear or cause injury to the freehold; (3) the adapta- tion of the chattel for use with the freehold; (4) the nature and purposes of the fixture, whether for trade, agricultural, domestic or ornamental purposes; (5) the interest in the land of the party making the annexation, according as it is more or less permanent, the probability of an intention to annex permanently being in pro- portion to the permanency of the interest claimed in the land by the annexor. In some cases, one of these may afford well-nigh conclusive evi- dence of an intent to annex the chattel permanently to the free- hold ; in others, several or all of them must combine. The cir- cumstances of each case must determine the intent. § 25. Same — I. Express Agreement as to the Permanency of the Annexation. Articles annexed, which might otherwise be con- sidered real fixtures and part of the land, may by express agree- ment be made to retain their personal character.*^ For example, if one should annex chattels to another's land by the "license or permission of the latter, there is prima facie an agreement that they shall not become real fixtures, or part of the land, and hence they are removable at the pleasure of the own- er of the chattels.** And so, if the owner of land, after placing a mortgage upon chattels for the purchase price or otherwise, or incumbering the chattels in any other way as by purchasing them with a reservation of title in the vendor, should annex such chat- tels to his land, there must be implied from the existence of the chattel mortgage or other incumbrance an intention on his part *' Shelton v. Ficklln, 32 Grat. (Va.) 727, 742, et seq. ; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St Rep. 235 ; Dame v. Dame, 38 N. H. 429, 75 Am. Dee. 195 ; Mottv. Palmer, 1 N. Y. 564 ; Tifft vJHfirton, 53 N. Y. 377, 13 Am. Rep. 537 ; SIssotTv. Hib- bard, 75 N. Y. 542^ Sullivan v. Jones, 14 S. C. 362 ; Goodman v. Hannibal & St. J. R. Co., 45 Mo. 33, 100 Am. Dec. 336. See Ford v. Cobb, 20 N. Y. 344; Binkley v. JEorfe«ep,vll7 Ind. 176, 19 N. E. 753, 3 L. R. A. 33; Camp- bell V. Roddy, 44 N. J. Bq. 244, 14 Atl. 279, 6 Am. St. Rep. 889. *8Ante, § 21 ; Wiggins Ferry Co. v. Ohio & M. R. Co., 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055 ; Ham v. Kendall, 111 Mass. 297 ; Western North Carolina R. Co. v. Deal, 90 N. C. 110; Merchants' Nat. Bank v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Rep. 491; Brown v. Baldwin, 121 Mo. 126, 25 S. W. 863. But see Peirce v. Grice, 92 Va. 767, 24 S. E. 392. (26) Ch. 2] CHARACTER OF ANNEXATION. § 26 that the chattels are not to be annexed permanently, to the detri- ment of the mortgagee or lienor.*" Where there is an agreement of this kind, imposing an obliga- tion upon the landowner not to annex the chattels permanently, the obligation rests equally upon a purchaser of the land with notice of the agreement or obligation, and the chattel may be severed from the land by the one entitled thereto as against him; '^° but, according to the weight of authority, not as against a purchaser of the land for value and without notice."^ On the other hand, if the owner of the land first mortgages his land, then mortgages the chattels, and subsequently annexes the chattels to the land, as between the two mortgagees, the mortgagee of the chattels has priority, so far as that can be given him without impairing the security previously given to the mortgagee of the land.^^ § 26. Same — II. Character of the Annexation. The mode of annexation of a chattel will often be of weight in determining whether the intent is to annex it to the freehold permanently or only temporarily.'*^ Thus, if the chattel is actually attached to the land or building, so that it cannot be detached therefrom without seriously tearing or io Carpenter v. Allen, 150 Mass. 281, 22 N. B. 900 ; Hunt v. Bay State Iron Co., 97 Mass. 279; Tibbetts v. Home, 65 N. h. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am. St. Rep. 31 ; Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33; Campbell v. Rod' tty ; 4r ~N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 889 ; Davenport v. Shants, 43 Vt. 546 ; Jenks v. Colwell, 66 Mich. 420, 33 X. W. 528, 11 Am. St. Rep. 502. 5 Morris v. French, 106 Mass. 326; Wood v. Holly Mfg. Co., 100 Ala. 326, 13 South. 948, 46 Am. St. Rep. 56 ; Horn v. Indianapolis Nat. Bank, 125 Ind. 3S1, 25 N. E. 558, 9 L. R. A. 676, 21 Am. St. Rep. 231. 51 Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 521, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235 ; Brennan v. Whitaker, 15 Ohio St. 446 ; Daven- port V. Shants, 43 Vt. 546 ; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. Rep. 8S9 ; Tibbetts v. Home, 65 N. H. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am. St. Rep. 31; Jenks v. Colwell, 66 Mich.' 420, 33 N. W. 528, 11 Am. St. Rep. 502. But see J'ifft v. H orton, 53 N. Y. 377, 13 Am. Rep. .537; Ford v. Cobb, 20 N. Y. 34Cr~HqSIf»-Ealmer, 1 N. X. 564; Russell v. Richards, 10 Me. 429, 25 Am. Dec. 254. 5 2Fosdick V. Schall, 99 U. S. 235, 25 L. Ed. 399; Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. -St. Rep. 819 ; Clary v. Owen, 15 Gray (Mass.) 522 ; McFadden v. Allen, 134 N. Y. 489, 32 N. E. 21, 19 L. R. A. 446 ; Daven- port V. Shants, 43 V f. b46T Merchants' Nat. Bank v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Rep. 491 ; Binkley V;_Fflr]fner, 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33 ; Hill v. Sewald, 53 Pa. 271, 91 Am. Dec. 209. osTeaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634; O'Donnell v. Hitch- cock, 118 Ma"Sgr3Sl ; Rogers v. Brokaw, 25 N. J. Eq. 496 ; Kerdall v. Hath- away, 67 Vt 122, 30 Atl. 859; Chase v. Tacoma Box Co., 11 Wash. 377, 39 Pac. 639. (27) § 26 CHAEACTER OP ANNEXATION. [Ch. 2 injuring the freehold, as in the case of a house with foundations in the earth, or staircases, marble mantles mortised in the walls, wainscoating (fastened by nails, but not by screws), etc., it is a strong, though not always conclusive, indication that the annexa- tion was intended to be permanent, and such fixtures will general- ly be considered real fixtures, while the reverse of these conditions is some evidence at least that the annexation was intended to be temporary only.°* Occasionally, however, chattels of a heavy and permanent char- acter, even though not actually imbedded in, nor attached to, the freehold, but merely held in place by their own weight, such as buildings, fences, etc., have been held to be real fixtures, though no tearing of the freehold would result were they removed."^ § 27. Same— III. Adaptation of the Chattel for Use with the Freehold. The fact that the particular fixture is peculiarly adapted for use with the realty is a pregnant indication that it was intended to be permanently annexed, and that it is therefore a real fixture. Especially is this true, if the chattel in question is not only useful in connection with the land or building, but usually accompanies such property, or is indispensable to its proper and complete en- joyment.''* Thus, machinery, engines, boilers, etc., in mills and factories, without which the business could not be conducted, are real fix- tures, and not ordinarily susceptible of legal removal save by the owner of the land; °^ and so are Avindow shutters, doors, keys, mill- 54 2 Min. Insts. 608; McRea v. Central N at. Ban k, 66 N. Y. 495; Ward V. Kilpatrick, 85 N. Y. 413, 39 Am. Rep. 674"; ForO- v. Cobb, 20 N. Y. ' 344 ; - Murdock v. Glffor d, 18 N. Y. 28; Bliss v. WhitneyTT'Allen (Mass.) 114, 85 Am. Decr'TtST'Tniiting v. Brastow, 4 Pick. (Mass.) 310; Degraffenreld v. Scruggs, 4 Humpb. (Tenn.) 451, 40 Am. Dec. 658; Clark v. Hill, 117 N. C. 11, 23 S. B. 91, 53 Am. St. Rep. 574; Bewick v. Fletcher, 41 Mich. 625, 3 N. W. 162, 32 Am. Rep. 170 ; Manwarlng v. Jenison, 61 Mich. 117, 27 N. W. 899; State Sav. Bank y. Kercheval, 65 Mo. 687, 27 Am. Rep. 310; Thomas V. Davis, 76 Mo. 75r?3~SiS. Rep. 756; Teaff v. Hewitt, 1 Ohio St. 511, 534, 59 Am. Dec. 634. 5 B Holland v. Hodgson, L. R. 7 C. P. 334; Snedek er v. Warring. 12 N. Y. 170; Stockwell v. Campbell, 39 Conn. 364, 12 Am. Rep. 393; Landon v. Piatt, 34 Conn. 517 ; Glidden v. Bennett, 43 N. H. 306. 68 2 Min. Insts. 612; Green v. Phillips, 26 Grat. (Va.) 752, 759, 21 Am. Rep. 323; Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634; Smith Paper Co. V. Servin, 130 Mass. 511; Huston v. Clark, 162 Pa. 435, 29 Atl. 866, 868; Ferris v. Quimby, 41 Mich. 202, 2 N. W. 9; Wade v. Donau Brewing CX>., 10 Wash. 284, 38 Pac. 1009. 57 2 Min. Insts. 612; Winslow v. Merchants' Ins. Co., 4 Mete. (Mass.) 306, 38 Am. Dec. 368 ; McCounell y. Blood, 123 Mass. 47, 25 Am. Rep. 12 ; Walker V. Sherman, 20 Wend. (X. Y.) 636; Voorhees v. JIcGinnis, 48 N.TTTS^ Rice V. Adams, 4 Har. (Del.) 332; Keeler v. Keelerr31 N.'jTlq. 181;' Case (28) Ch. 2] TRADE FIXTURES. § 29 Stones, and the like, though capable of being detached without breaking or tearing the building — although at the time actually de- tached for a temporary purpose, as to be painted, etc. They are parts of the freehold, and cannot be seized under execution as per- sonalty, nor removed by a tenant without liability for waste, though the tenant himself annexed them to the premises.^* § 28. Same — IV. Nature and Purposes of the Fixture. The na- ture of the fixture and the uses to which it is to be put furnish very important evidence of the intention with which it is annexed to the freehold. Chattels are usually thus annexed either for purposes of trade, of agriculture, or for domestic or ornamental purposes. Permanent annexation is most strongly presumed where the chattel is affixed to the freehold for domestic or ornamental pur- poses, least strongly in case of trade and agricultural fixtures. In- deed, in the case of trade and agricultural fixtures, the presumption that they are personal and removable fixtures is due rather to a broad public policy for the encouragement of these pursuits than to any particular presumption of intention. § 29. Same — 1. Trade Fixtures. With respect to trade fixtures, it is well settled both in England and in the United States that they occupy a favored position, and, to encourage trade, are more freely removable than domestic, or ornamental, or (in England) agricul- tural fixtures. Indeed, the general rule may be said to be that they are freely removable, at least as between tenant and landlord. •** Thus, showcases, counters and shelves, °° boilers and engines,*^ Mfg. Co. T. Garven, 45 Ohio St. 289, 13 N. E. 493; Christian v. Dripps, 28 Pa. 271. 58 2 Min. Insts. 612; Green v. Phillips, 26 Grat. (Va.) 752, 761, 21 Am. Rep. 323; Shelton v. Ficklin, 32 Grat. (Va.) 727; Winslow v. Merchants' Ins. Co., 4 Mete. (Mass.) 314, 38 Am. Dec. 368; Poole's Case, 1 Salk. 368; Heriakenden's Case, 4 Co. 64a. 5 9 2 Min. Insts. 610 et seq. ; Guthrie v. Jones, 108 Mass. 191; Holbrook v. Chamberlin, 116 Mass. 155, 17 Am. Rep. 146 ; Smith v. Whitney, 147 Mass. 479, 18 N. B. 229 ; Kile v. Giebner, 114 Pa. 381, 7 Atl. 154 ; Conrad v. Saginaw Min. Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817 ; Poole's Case, 1 Salk. 368; Elwes V. Maw, 3 East, 38, 2 Smith, Lead. Cas. 191; Van Ness v. P ac- ard, 2 Pet. 137, 7 L. Ed. 374. -^ 6 Guthrie v. Jones, 108 Mass. 191; McOall v. Walter, 71 Ga. 287. 61 Cooper V. Johnson, 143 Mass. 108, 9 N. E. 33; Holbrook v. Chamberlin, 116 Mass. 155, 17 Am. Rep. 146; Conrad v. Saginaw Min. Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817 ; Crane v. Brigham, 11 N. J. Eq. 29 ; La- mar V. Miles, 4 Watts (Pa.) 330; Green v. Phillips, 26 Grat. (Va.) 752, 760, 21 Am. Rep. 323. (29) § '1% TEADB FIXTURES. [Cll. 2 a vat in a soap factory/^ and even buildings,"^ have been held to be personal fixtures and removable. In Penton v. Robart/'' the building removed by the tenant con- sisted of a brick foundation let into the ground, with a chimney belonging to it, and upon this foundation a superstructure of wood brought by the tenant from elsewhere, and used for trade purposes, had been erected. It would seem that the tenant took away, not only the wooden superstructure, but the brick foundation and chimney. This, however, the report of the case leaves in doubt. But Lord Kenyon held that the tenant had done no more than he had the right to do, the erection being for trade purposes, and no reference is made to the question whether or not the whole build- ing was removed. § 30. Same — 2. Agricultural Fixtures. With respect to agri- cultural fixtures, such as barns, sheds, etc., the English doctrine is that they are not easily removable like trade fixtures, but for the most part are real fixtures and not to be severed."^ But in the United States the tendency is to regard fixtures annexed by the tenant for agricultural purposes as entitled to no less favor than those annexed for purposes of trade. There is with us, considering the unpeopled condition of a large propor- tion of the territory of these states, a manifest policy to promote the cultivation and improvement of the country. The owner of the soil, as well as the public, has every motive to encourage the ten- ant to devote himself to agriculture and to favor any erection which shall aid this result. But, as Judge Story observes in a leading case, what agricultural tenant could afford to erect structures of much ex- pense or value if he is to lose his whole interest therein by the very act of erection? '^ § 31. Same — 3. Manure as a Fixture. In connection with agri- cultural fixtures, it may be observed that manure made on a farm, as a result of the feeding to stock of crops raised thereon, is gen- «2 Poole's Case, 1 Salk. 368. 8 3 Elweg-v^Iaw, 3 East, 38, 2 Smith, Lead. Cas. 191; Penton v. Bobart, 2 East, SsYTan Nfiss-vrHPacajd, 2 Pet. 142, 146, 7 L. Ed. 374 ; Western North Carolina R. Co. v. Deal, 90 N. C. 110; Macdonough v. Starbird, 105 Cal. 15, 38 Pac. 510 ; Walton v. Wray, 54 Iowa, 531, 6 N. W. 742. 84 2 East, 88. See, also. Van Ness v. Pacard, 2 Pet. 142, 146, 7 L. Ed. 374. But see Peirce v. Grice, 92 VaT767, 24 S. E. 392. 85 2 Min. Insts. 610, 611; Elwes v. Mawe, 3 East, 38, 2 Smith, Lead. Cas, 191. 8 6 2 Min. Insts. 611 ; Van Ness v. Pacard, 2 Pet. 145, 7 L. Ed. 374. See Wing V. Gray, 36 Vt. 261; Harimess v. Sears, 26 Ala. 493, 62 Am. Dec. 742; DutMSiS..s,_ Kelly, 10 Barb. (N. Y.) 496; Holmes j. Tremper, 20 Johns. (N. X.) 29, 11 Am. Dec. 238; McMath v. Levy, 74 Mis"si 450, 21'^outh. 9, 523. (30) Ch. 2] DOMESTIC FIXTURES. § 32 erally regarded as a real fixture, and is not removable by a tenant for years or at will." On the same principle, such manure passes by a conveyance of the land, in the absence of an agreement to the contrary;"* and upon a mortgage of the land, the mortgagor after maturity of the mortgage may be enjoined from removing it by the mortgagee."' So, it has been held that such manure goes, upon the death of the fee-simple owner of the land, to the heir along with the land, and not to the personal representative of the deceased owner; ^^ and that, though piled in heaps and not scattered over the land as it has fallen, it is real property, and therefore not subject to an ex- ecution.'^ On the other hand, if the manure be brought upon the land from elsewhere, as from a livery stable, or if the stock is fed with feed raised elsewhere, the manure is a personal fixture, and as such is removable by a tenant for years or at will, in the absence of a con- trary agreement.''^ In such case, likewise, it will not pass with the land under a conveyance.'^ § 32. Same — 4. Domestic and Ornamental Fixtures. Domestic and ornamental fixtures are the least easily removable of all. There are not the same reasons of policy here as exist in the case of trade and (in this country) agricultural fixtures to permit an easy severance of them. In general, therefore, they may be removed — at least by another than the fee-simple owner of the land to which 67 2 Mm. Insts. 605 ; Daniels v^Pond, 21 Pick. (Mass.) 371, 32 Am. Dec. 269; Middlebrook v. Corwin, 15 ' WenJ (N. Y.) 169; Hill v. De Rochemont, 48 N. H. 87 ; Sawyei'~vrT^ss, 26 N. H. 345 ; Lewis v. Jones, 17 Pa. 262, 55 Am. Dec. 550; Gallagher vTSfflpley, 24 Md. 418, 87 Am. Dec. 611; Parsons V. Camp, 11 Conn. 530. But see Smithwick v. Ellison, 24 N. C. 326, 38 Am. Dec. 697; Staples v. Emery, 7 Me. 201. 68 Kittredge v. Woods, 3 N. H. 503, 14 Am. Dec. 393; Needham v. Allison. 24 N. H. 355 ;' Goodri ch Y;_ Jflnes, 2 Hill (N. Y.) 142 ; Norton v. Craig, 68 Me. 275; Wetherbee v. EiHsonTT^ Vt. 379. But s ee Ruckman v. Cutwater, 28 N. J. Law, 581. ' ' 6 9 Chase v. Wingate, 68 Me. 204, 28 Am. Rep. 86. 7 Fay V. Muzzey,, 13 Gray (Mass.) 53, 74 Am. Dec. 619. See Sawyer v. Twiss, 26 N. H. 345. 71 Sawyer v. Twiss, 26 N. H. 345. 7 2 Fletcher v. Herring, 112 Mass. 382; Strong v._JDayJfir' 110 Mass. 92; Daniels v. PoBd^21 Pick. (Mass.) 367, 32 Am. Dec. 269; Lassell v. Reed, 6 Me. 222 ; Gnf>rlriflT_ y. .To""', 2 Hill (N. Y.) 142 ; Middleb rook y . Corwin. 15 Wend. (N. X.) 169; Snow v. Perkins, 60 N. H. 493, 49 Am. Rep. 333; Sawyer v. Twiss, 26 N. H. 345; Gallagher v. Shipley, 24 Md. 418, 87 Am. Dec. 611 ; Lewis v. Jones, 17 Pa. 267, 55 Am. Dec. 550. 73 Snow V. Perkins, 60 N. H. 493, 49 Am. Rep. 333 ; Needham y. Allison, 24 N. H. 355; Fay y. Muzzey, 13 Gray (Mass.) 53, 74 Airir Dec. 619. See Collier v. Jenks, 19 ffTiri's?, 32 Atl. 208, 61 Am. St. Rep. 741. (31) , § 32 DOMESTIC FIXTURES. [Ch. 2 they are attached — only where the circumstances indicate strongly the intention that the annexation should be merely temporary, as that the chattel is so affixed as to be easily detachable without tearing or injuring the freehold/* and that it is not essential to the complete enjoyment thereof.'" Hence mirrors, wardrobes, stoves, radiators, lavatories, chan- deliers, chimney pieces, marble mantles, and even wainscoating, fixed by screws, etc., have been frequently held to be removable by a tenant for years, without imputation of waste, when annexed by himself.''" § 33. Same — V. Interest of the Annexor in the Land. One of the most important circumstances in ascertaining the probable in- tention with which chattels have been annexed to lands or build- ings is the interest or estate possessed by the annexor in the latter. Questions of this sort are apt to arise most frequently in the fol- lowing cases : (1) Where the annexor is the fee-simple owner of the land ; (2) where the annexor is tenant of the land for years or at will ; and (3) where he is tenant of the land for life. § 34. Same — 1. Annexor the Fee-Simple Owner of the Land. If the proprietor of the land himself annexes the chattels, a doubt as to his intention to annex them permanently will in most cases be resolved in favor of such an intent, upon the theory that his design is to place permanent improvements upon his property, which will enhance its usefulness and consequently its market value. Such fixtures are in general real fixtures, and become a permanent part of the land or buildings to which they are attached. Hence, if the owner of the inheritance die intestate, such fix- tures ordinarily descend to the heir together with the land, and do not, unless previously severed by the owner, go to his personal rep- resentative.''' So, also, if he sell or convey the land, not having severed the chattels therefrom, they pass with the land to which 74Ante, § 26. fsAnte, § 27. 76 2 Jlin. lusts. 608 ; Towne v. Fiske. 127 JIass. 125, 34 Am. Rep. 353 ; Weston V. AYeston, 102 Mass. 514; Wall v. Hinds, 4 Gray (Mass.) 256, 64 Am. Dec. 64; Gaffield v. Hapgood, 17 Pick. (Mass.) 192, 28 Am. Dec. 290; Catasaiiqua Bank v. NortnMeOTPa. 303, 28 Atl. G94 ; A'auglien v. Haldeman. rt"! Pa. .^22, 75 Am. Dec. 622 ; Aldine Ml'?. Co. v. Barnard. 84 Mich. 632, 48 X. W. 280 ; Johnson v. Wiseman, 4 Mete. (Ky.) 357, 83 Am. Dec. 475. Ti'l Min. Insts. 612; Herlakenden's Case, 4 Co. 63b; Elwes v. Maw, 3 East, 38. 2 Smith, Lead. Cas. 191 ; Fisher v. Dixon, 12 01. & F. 312 ; Green V, Pbilliiis, 26 Grat. (Va.) 752, 759, 21 Am. Rep. 323; Gibbs v. Estey, 15 Gray (Mass.) 587; Stillman v. Flenniken, 58 Io^ya, 450, 10 N. W. 842, 43 Am. Rep. 120: Tuttle v. Robinson, 33 N. II. 104; Hays y. Doane, 11 N. J. Eq. 84. The doctrine of "trade fixtures" has no application here. Fisher V. Dixon, 12 CI. & F. 312; Harkness t. Sears, 20 Ala. 493, 62 Am. Dec. 742; Foote V. Gooeh, 96 N. C. 265, 1 S. E. 525, 60 Am. Rep. 411. (32) Ch. 2] ESTATE OF ANNEXOR. § 34 they are annexed; ^' and the same is true if he mortgage it,'° unless the chattels themselves are subject to mortgage or lien at the time they are annexed.*" In like manner they will pass by a devise of the land, though not specially mentioned ;^^ and, being part of the land, they can- not be levied upon under an execution of fieri facias.'^ All that has been said above is subject to the qualification that the fee-simple owner, after annexing the chattels and thus giving them the character of real estate, may, at any time before the rights of third parties to the land intervene, sever the connection, and thus restore to the chattels their character of personalty distinct from the land. This severance may be actual, by detachment of the fixture ; ^' or it may be constructive, by express or implied agreement to that effect on the part of the owner of the land. Thus, if the owner of the land sells or agrees to sell the fixture 78 2 Min. Insts. 612; Green v. Phillips, 26 Grat. (Va.) 7:i2, 21 Am. Rep. 323; Gibbs v. Estey, 15 Gray (Mass.) 587; Ford v. Cobb, 20 N. Y. 344; Walker v. Sherm an, 20 Wend. (N. Y.) 636; Mott vtT'STmWj. 1 N. Y. 564; Stillman vT-FT5nnIEen, 58 Iowa, 450, 10 N. W. 842,~43 Am! Rep. 120; Wins- low V. Merchants' Ins. Co., 4 Mete. (Mass.) 310, 38 Am. Dec. 368; Wadleigh V. Janvrin, 41 N. H. 503, 77 Am. Dec. 780; Leonard v. Clough, 133 N. Y. 292, 31 N. E. 93, 16 L. R. A. 305; Michigan Mut. EffeTM^Qp. v. Cronk, 93 Mich. 49, 52 N. W. 1035. But see Davis v.T^asthamrSi Ky.lie. T9 2 Min. Insts. 612; Meux v. Jacobs, L. R. 7 H. L. 481; Shelton v. Fick- lin, 32 Grat. (Va.) 727 ; Winslow v. Merchants' Ins. Co., 4 Mete. ( JIass.) 300, 38 Am. Dec. 368; Clary v. Owen, 15 Gray (Mass.) 522; McDonnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12 ; McRea v. Cen.tcal_-iIat,-.Bank, 66 N. Y. 489 ; Tifft V. Horton, 53 N. Y. 377, 13 Am. Rep. d37 ; Rogers v. Brokaw, 25 N. J. Eq. 496 ; Williamsoh'v. New Jersey Southern R. Co., 29 N. J. Eq. 311 ; Bren- nan v. Whitaker, 15 Ohio St. 446. 8 Ante, § 25. 81 Norton v. Dashwood, [1896] 2 Ch. 497. 82 2 Min. Insts. 612 ; Green v. Phillips, 26 Grat. (Va.) 752, 21 Am. Rep. 323. 8 3 Sampson v. Graham, 96 Pa. 405; Franks v. Cravens, 6 W. Va. 185; Harris X- . Scove l, 85 Mich. 32, 48 N. W. 173: Hensley v. Brodie, 16 Ark. 511. But the~detachment must be with the intent to sever permanently. Bishop V. Bisho p, 11 N. Y. 123, 62 Am. Dec. 68 ; Goodrich v. Jones, 2 Hill (X. Y.) 142; Lewis v. Rosier, 16 W. Va. 333 ; Voorhis v. Freeman, 2 Watts & S. (Pa.) 116, 37 Am. Dec. 490 ; Wadleigh v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780. An accidental severance, as by tempest, or a wrongful severance by one not entitled to make it, will effect no change in the nature of the arti- cle against the wish of the landowner. 2 Jliu. Insts. 603 ; Herlakenden's Case, 4 Co. 62a ; Lewis v. Rosier, supra ; Patton v. Moore, 16 W. Va. 428, 37 Am. Rep. 789 ; Rogers v. Gi linger^ O Pa. 185, 72 Am. Dec. 694 ; Qpodrich V. Jones, supra. But see Budkout vT Swift, 27 Cal. 433, 87 Am. Dec. "SO ; State V. Goodnow, 80 Mo. 271. Minor & W.Real Peop.— 3 (33) § 34 ESTATE OF ANNEXOE. [Oh. 2 separate from the land,** or mortgages it,*° the mere agreement operates as a constructive severance, and makes the fixture an entity distinct from the land, so that it will not pass with the land upon a conveyance of the latter — at least, if the purchaser of the land have notice of such agreement.*" It is worthy of notice that, since, until severance, the fixture is real property, a transfer of the same is a transfer of real prop- erty, and must accord with the provisions of the statute of frauds relating to conveyances of, and contracts to convey, land.*' § 35. Same — 2. Annexor Tenant of the Land for Years or at Will. If the party annexing the chattels is merely a lessee of the premises for a limited time, it is hardly probable that in annexing chattels of value he intends thereby to make a permanent gift of them to improve the landlord's property. There must be clear evi- dence of so eccentric a purpose, as, for example, that he fastens the chattel to the land in such a manner that it cannot be detached without tearing or otherwise injuring the freehold.** Whether the fixture thus annexed by the tenant is a real fixture or a personal one (and as such removable by him) depends upon the circumstances and considerations which have been already out- lined in the preceding sections. It must be observed, however, that the removal of the fixture (when it is removable) by the lessee must take place during the term ; that is, before the possession is relinquished or, in case of a tenant for life or at will, within a reasonable time after the termi- nation of the estate. If postponed, the removal or attempt at re- 8*Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899: Dudley v. Foote. 03 N. H. 57, 56 Am. Rep. 489: Davis v. Kmery, 61 Me. 140, 14 Am. Rep. 5.53. But see Aldrich v. Husband, 131 Mass. 480; Madisan v. McCarthy, 108 JIass. 376, 11 Am. Rep. 371: Gihbs v. Estey, 15 Gray (Mass.) .^87. 85 Tyson v. PostjJi];8 N. Y. 217, 15 N. e. 316, 2 Am. St. Rep. 409; Gooding V. Riley, 50 WrETSooT 8 6.Shelton v. Ficldin, 32 Grat. (Va.) 727. 7.36; Brennan v. Whitaker, lo Ohio St. 446 ; Fenlason v. RacklifC, 50 Me. 302. According to some decisions, even if the purchaser of the land is without notice of the agreement, he is still bound thereby, and cannot claim the fixtures under his conveyance. Richardson v. Copeland, 6 Gray (Mass.) 536, 66 Am. Dec. 424 ; Keeler v. Keeler, 31 N. J. Eq. 181. 8 7 Dudley v. Foote, 63 N. H. 57. 56 Am. Rep. 489; L eona.r d v. Clough, 1.S3 N. Y. 292, 31 N. E. 93, 16 L. R. A. 305; Rice v. A5amsr4 Har. (Del.) .".32; Meyers v. Schemp, 67 111. 469. "-— ~~~- 88 2 Min. Insts. 613; Youngblood v. Eubank, 68 Ga. 630; Thomas v. Crout, 5 Bush (Ky.) 37 ; Osgood v. Howard, 6 Me. 452, 20 Am. Dec. .322. See Deane v. Hutchinson, 40 N. J. Eq. 83, 2 Atl. 292; Andrews v. Day Button Co.,_122.X^ Y. 348, 30 N. B. 831; Teirce v. Grice, 92 Va. 763, 24 S. E. 392 ;' Conrad "v. Saginaw Min. Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817; Gaffield v. Hapgood, 17 Pick. (Mass.) 192, 28 Am. Dec. 290. (34) Ch. 2] FEUCTUS NATUEALES, ETC. § 37 moval, while not waste (for waste can occur only during a ten- ancy), is a trespass, for the articles remaining fixed to the land aft- er the term is ended become the property of the landlord along with the land itself.'" § 36. Same — 3. Annexor Tenant of Land for Life. If the an- nexor of the chattels is a tenant for life of the land, a case is pre- sented which is intermediate between the other two. It will require stronger circumstances to permit a tenant for life, or his personal representative, to remove fixtures thus attached, than it would to authorize such a removal by a tenant for years or at will ; and, on the other hand, less pregnant circumstances will justify a tenant for life in treating the fixtures as personal than would suffice if the question were to arise between the heir and personal representative of a deceased fee-simple owner of land who had himself annexed the fixtures, or between a vendor and vendee, or mortgagor and mort- gagee, of the land.*" § 37. Fructus Naturales and Fructus Industriales. In determin- ing the question whether the vegetable growths of the soil are to be regarded as part of the soil (land) or as personalty, a distinction must be drawn between those products which grow spontaneously or with only occasional care bestowed upon them and those which are the result of annual labor and cultivation. The first class is known as "fructus naturales" ; the second as "fructus industriales." The former (fructus naturales) are very generally regarded as real estate, while the latter (fructus industriales) are for the most part, though not always, held to be personalty, even while still attached to and growing upon the land."^ 89 2 Mm. Insts. 613; Penton v. Robart, 2 East, 88; Elwes y. Maw, 3 East, 38, 2 Smitb, Lead. Cas. 191; Horu \\ Baker, 9 East, 21.j ; Lee" v. Rlsdon, 7 Taunt. 188 ; Colegrave v. Dios Santos, 2 B. & Cr. 7G ; Sampson v. Camper- down Cotton Mills (C. C.) 64 Fed. 939; Haflick v. Stober, 11 Ohio St. 482; Priedlander v. Ryder, 30 Neb. 783, 47 N. W. S3, 9 L. R. A. 700; Josslyn v. McCabe, 46 Wis. 591, 1 N. W. 174. But if the tenant holds over with the consent of the landlord, he does not lose his right of removal. Lewis v. Ocean Nav. & Pier Co., 1 25 N. Y. 341. 26 N. E. 301 ; Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554! If, however, he accepts a new lease with different terms he may lose the right. Jlclver v. Estabrook, 134 Jlass. 550 ; Watriss V. First Nat. Bank, 124 Mass. 571, 26 Am. Rep. 694; Loughran_L_a9SS, 45 N. Y. 792, 6 Am. Rep. 173. See Kerr v. _KinssM£Zi_39 Mich. 150, 33 Am. Rep. 362. 90 2 Min. Insts. 614. See Elwes v. Maw, 8 East, 38, 2 Smith, Lead. Cas. 191; Lawton v. Salmon, 1 H. Bl. 260, note; Lawton v. Lawton, 8 Atk. 12; D'Eyncourt v. Gregory, L. R. 3 Eq. 382; Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 743, 744; Overman v. Sasser, 107 N. C. 432, 12 S. E. 64, 10 L. R. A. 722 ; Van Ness v. Pacardf 2 Pet"l.37, 7 L. Ed. 374 ; McCullough v. Irvine, 13 Pa. 438 ; Hemh^TTPiiise' 53 Ark. 526, 14 S. W. 899, 12 L. R. A. 87. 91 Post, §§ 38, 41. (35) § 37 FEDCTUS NATUKALES, ETC. [Oh. 2 The distinctions between these two classes of products and the principles governing them will be developed in the succeeding sec- tions. § 38. Fructus Naturales— Trees, Grass, etc., Growing upon the Land. It is well settled that trees, grass, and other spontaneous growths, requiring little or no periodical cultivation, while grow- ing upon the land, are part thereof, and are not to be regarded as chattels. Thus, they are held to pass with the land upon a sale, convey- ance or mortgage thereof, unless expressly reserved or excepted ; '^ and also upon a devise thereof in the absence of a contrary inten- tion shown in the will,"^ unless the growths have already been dis- posed of to a third person, in which case, of course, they will not pass, if the purchaser of the land purchases with notice of such transfer or incumbrance.^* On the same principle, fructus natu- rales are not subject to levy under execution, but must be subjected to debts as land; °^ and they pass to the heir.'" § 39. Same — Estovers. The tenant of land for life, for years or at will, in the absence of agreement express or implied, has in gen- eral no direct interest in the fructus naturales growing thereon, save to gather the mast or fruit of them, and to utilize the growing 92 Stuart V. Pennis, 91 Ya. 688, 691, 22 S. B. 509; Batterman v. Albright, 122 N. Y. 484, 25 N. B. 856, 11 L. R. A. 800, 19 Am. St. Rep. 510 ; Reed v. Swan, 133 Mo. 100, 34 S. W. 483; Smitli y. Price, 39 111. 28, 89 Am. Dec. 284 ; Ti-ipp v. Hasceig, 20 Mich. 254, 4 Am. Rep. 388 ; Terhune v. Elberson, 3 N. J. Law, 726 ; Kittredge v. Woods, 3 N. H. 503, 14 Am. Dec. 393 ; Floyd V. Ricks, 14 Ark. 286, 58 Am. Dec. 374 ; Backenstoss v. Stabler, 33 Pa. 251, 75 Am. Dec. 592; Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438. In case they are reserved by the grantor or mortgagor, he thereby impliedly reserves also such a right in the soil as is sufficieut to sustain them and the right to enter on the land for the purpose of removing them. Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776 ; Clap v. Draper, 4 Mass. 2G6, 3 Am. Dee. 215 ; McClintock's Appeal, 71 Pa. 365; Wait v. Baldwin, 60 Mich. 622, 27 X. W. 607, 1 Am. St. Rep. 551 ; Alcutt v. Lakin, 33 N. H. 507, 66 Am. Dec. 739. 83 In re Chamberlain, 140 N. Y. 390, 35 N. E. 602, 37 Am. St. Rep. 568 ; Stall V. Wilbur, 77 N. Y. 158; Budd v. Hiler, 27 N. J. Law, 43; Smith v. Barham, 17 N. C. 420, 25 Am. Dec. 721 ; Cooper v. Woolft, 2 Hurl. & N. 122. 94 Austin v. Sawyer, 9 Cow. (N. Y.) 39; Willis v. Jloore, 59 Tex. 628, 46 Am. Rep. 284; Hershey v. Metzgar, 90 Pa. 218; Wait v. Baldwin, 60 Mich. 622, 27 N. W. 697, 1 Am. St. Rep. 551. 95 Stuart V. Pennis, 91 Va. 688, 691, 22 S. E. 509. See Whipple v. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442 ; Stewart v. Doughty, 9 Johns. (N. Y.) 108; CiacldcK-k v. Riddlesbarger, 2 Dana (Ky.) 205; Parham v. Tompsoa, 2 J. J. Marsh. (Ky.) 159 ; Penhallow v. Dwight, 7 Mass. 34, 5 Am. Dec. 21 ; Pattison's Appeal, 61 Pa. 294, 100 Am. Dec. 637 ; Willis v. Moore, 59 Tex, 628, 46 Am. Rep. 284. 96 Stuart v. Pennis, 91 Va. 688, 691, 22 S. E. 509. (36) Ch. 2] TEEES, EITC, AFTER SEVERANCE. § 40 trees for shade. The general ownership remains in the proprietor of the inheritance, and it is waste if the tenant cuts them down or injures them. Even if they are severed by accident (as by tempest) or by a third person, though at once losing the character of realty, they remain the property of the owner of the inheritance."^ But an important qualification must be noted to this general principle, in the case of estovers (Fr. estoffer, to furnish) or botes (Ang.-Sax. bot, amends or compensation) ; that is, the right im- pliedly given to every tenant for life, for years or at will ^* to cut down and use as much of the timber growing on the premises as he may require for purposes of fuel, repairs, fences, etc., provided he takes no more than is necessary for these purposes and uses it for no other. If he takes it for sale or exchange, he is guilty of waste."' § 40. Same — Trees, etc., after Severance. After the trees, grass, or other fructus naturales are severed from the land, they at once lose their character as part of the land, and become personal prop- erty. The severance may be actual, as by cutting down timber, or it may be constructive, the trees, etc., actually continuing to grow upon the soil as before. In either case, immediately after the sever- ance, the fructus naturales become personalty, though in case of a constructive severance the owner of the fructus naturales has an in- terest in the soil itself, in the nature of an easement, sufficient for their support and nourishment, with the right to enter upon the land to remove them.^ Such a constructive severance occurs where the owner of the land sells trees growing thereon,^ or even where he mortgages them (after the maturity of the mortgage).^ It also occurs when he sells the land, excepting the trees growing thereon.* 97 2 Min. Insts. 603 ; ante, § 34. 88 2 Min. Insts. 603; 2 Bl. Com. 144; Hawpe v. Bumgardner, 103 Va. 91, 96, 48 S. E. 554. 99 2 Min. Insts. 101, 603; 2 Bl. Com. 122, 282; 1 Th. Co. Lit. 624; Hawpe V. Bumgardner, 103 Va. 91, 96, 48 S. E. 554. Somewhat analogous to this is the tenant's right, at any reasonable time he pleases, to cut down under- wood, so that he does not destroy the young timber and subsequent growth. 2 Min. Insts. 603, 604 ; " post, § 882. 1 Liford's Case, 11 Co. 46b ; White v. Foster, 102 Mass. 375 ; Wait v. Bald- win, 60 Mich. 622, 27 N. W. 697, 1 Am. St. Rep. 551 ; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173 ; Asher Lumber Co. v. Cornett, 58 S. W. 438, 22 Ky. Law Rep. 569, 56 L. R. A. 672 ; Baker v. Jordan, 3 Ohio St. 438. 2 Bae. Abr. Executors (H) 3 ; Stukeley v. Butler, Hobart, 300 ; Asher Lum- ber Co. V. Cornett, 58 S. W. 438, 22 Ky. Law Rep. 569, 56 L. R. A. 672; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173. 3 Bank of Lansingburgh v. Crary, 1 Barb. (N. Y.) 542, 547 ; Kimball v. Sattley, 55 Vt. 285. 45 Am. Rep. 614. See First Nat. Bank v. Beegle, 52 Kan. 709, 35 Pac. 814, 39 Am. St! Rep. 365. * Baker v. Jordan, 3 Ohio St. 438 ; Sterling v. Baldwin, 42 Vt. 306. (37) § 40 TREES, ETC., AFTER SEVERANCE. [Ch. 2 While, as just shown, a sale of the growing trees, etc., converts them at once into personalty, it is quite another thing to say that such sale is itself a sale of personalty. The point is of especial im- portance in respect to the operation of the statute of frauds, which provides that no action shall lie upon "any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them," unless the contract or a memorandum or note thereof be in writ- ing, signed by the party to be charged thereby or his agent.° The weight of authority seems to be in favor of the view that a sale of grass or trees growing upon land, or of fruit growing upon such trees, is, prima facie at least, a sale of an interest in land, and therefore comes within the statute,^ unless under the agreement the title is not to pass until the products have been severed, in which case the contract is for the sale of chattels, and is governed by an- other provision of the statute of frauds : "No contract for the sale of any goods, wares, and merchandises for the price of £10 sterling or upwards shall be allowed to be good, except the buyer shall ac- cept part of the goods and actually receive the same, or give some- thing in earnest to bind the bargain, or in part payment, or that some note or memorandum be in writing signed by the party to be charged or his agent." '' § 41. Fructus Industriales — Growing Crops — General Nature and Incidents. If the vegetable products are the result of annual labor and cultivation, and especially if annually renewed and gath- ered, like cereals and garden products, they are fructus industriales, and are for many purposes, after they have matured, considered as personalty, even before severance, while for other purposes they are regarded as part of the land from which they spring. Thus, upon a conveyance, sale, mortgage or devise of the land upon which the crops are growing, they, like fructus naturales, pass therewith, in the absence of a stipulation to the contrary.^ B 29 Car. II. c. 3, § 4. This statute has been substantially followed by the statutes of most of our states. Clark, Cont. 91. 6 Stuart V. Pennis, 91 Va. 688, 22 S. B. 509 ; Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, 19 L. R. A. 721, 40 Am. St. Rep. 641 ; Slocum v. Seymour, 36 N. J. Law, 138, 13 Am. Rep. 432; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173 ; Howe v. Batchelder, 49 N. H. 204 ; Green v. Armstrong, 1 Denio (N. T.) 550; Bowers v. Bovvers, 95 Pa. 477; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Buck v. Pickwell, 27 Vt. 158; White v. Foster, 102 Mass. 375. But see Byassee v. Reese, 4 Mete. (Ky.) 372, 83 Am. Dec. 481; Burner v. Piercy, 40 Md. 212, 17 Am. Rep. 591. ' 29 Car. II. c. 3, § 17. This provision of the statute has also been sub- stantially followed in most of our states. Clark, Cont. 136. See Killmore V. Hewlett, 48 N. Y. 569; Dorris v. King (Tenn. Ch. App.) 54 S. W. 083; Smith V. Surman, 9 B. & Cr. .501. sAnte, § 40. See Terhuue v. Elberson, 3 N. J. Law, 726; Smith v. Price, (38) Ch. 2] GROWING CROPS. § 41 On the other hand, if the owner of the land sells the crops grow- ing thereon, whether this is a sale of land (to which the fourth sec- tion of the statute of frauds is applicable) or of personalty (to which the seventeenth section applies) depends upon whether the crops are, at the time of the sale, ripe and ready for harvest. If so, they no longer need to draw sustenance from the soil, their association with it is terminated, and they are to be regarded as personalty; whereas if they are not yet ripe, and until they are, they are part of the realty, just as are fructus naturales.® On the same principle, if the owner of the land die intestate, the fructus industriales, if already mature and ready for harvest, pass to the personal representative, and not to the heir.^" For the same reason, the fructus industriales, if immature and unripe, cannot be levied on under an attachment or execution as personalty. ^^ But, if ripe, they are to be regarded as personalty, and hence may be levied upon as such under an attachment or execu- tion." 39 111. 28, 89 Am. Dec. 284 ; Tripp v. Hasceig, 20 Mich. 254, 4 Am. Rep. 38S ; Heavilon v. Heavllon, 29 Ind. 509 ; Batterman v. Albright, 122 N. T. 484, 25 N. E. 856, 11 L. R. A. 800, 19 Am. St. Rep. 510; Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374; Kittredge v. Woods, 3 N. H. 503, 14 Am. Dec. 393; Backenstoss v. Stabler, 33 Pa. 251, 75 Am. Dec. 592 ; Reed v. Swan, 133 JIo. 100, 34 S. W. 483 ; Treat v. Dorman, 100 Cal. 623, 35 Pac. 86 ; Brown v. Thur- ston, 56 Me. 126, 96 Am. Dec. 438; Adams v. Beadle, 47 Iowa, 439, 29 Am. Rep. 487 ; Stall v. Wilbur, 77 N. Y. 158 ; In re Chamberlain, 140 N. Y. 390. 35 N. E. 602, 37 Am. St. Rep. 568 ; Smith v. Barham, 17 N. C. 420, 25 Am. Dec. 721. 9 Bank of Pennsylvania v. Wise, 3 Watts (Pa.) 406 ; Noble v. Smith, 2 Johns. (N. Y.) 52, 56, 3 Am. Dec. 399; Smith v. Champney, 50 Iowa, 174; Burleigh v. Piper, 51 Iowa, 649, 2 N. W. 520; Ellithorpe v. Reidesil, 71 Iowa, 315, 32 N. W. 238 ; Branton v. Griffits, 2 C. P. Div. 212. But see Smith V. Johnston, 1 Pen. & W. (Pa.) 471, 21 Am. Dec. 404 ; Ticknor v. McClelland, 84 111. 471 ; Williamson v. Steele, 3 Lea (Tenn.) 527, 31 Am. Rep. 652. 10 Sherman v. Willett, 42 N. Y. 146 ; Penhallow v. Dwight, 7 Mass. 34, 5 Am. Dec. 21; McGee v. Walker, 106 Micli. 521, 64 N. W. 482; Dennett v. Hopkinson, 63 Me. 350, 18 Am. Rep. 227. 11 Ellithorpe v. Reidesil, 71 Iowa, 315, 32 N. W. 238 ; Martin v. Knapp, 57 Iowa, 336, 10 N. W. 721 ; Hecht v. Dettman, 56 Iowa, 679, 7 N. W. 495, 10 N. W. 241, 41 Am. Rep. 131 ; Whipple v. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442 ; Stewart v. Doughty, 9 Johns. (N. Y.) 108 ; Parham v. Tompson, 2 J. J. Marsh. (Ky.) 159 ; Willis v. Moore, 59 Tex. 628, 46 Am. Rep. 284. In Ellithorpe v. Reidesil, supra (an attachment of unripe crops), the court says: "The whole proceeding was on the theory that the crops were personal property, and could be levied on and sold as such ; but while they remained immature and were being nurtured by the soil, they were attached to and constituted part of the realty. They could no more be levied on and sold on execution as personalty than could the trees growing on the premises." But see Craddock v. Riddlesbarger, 2 Dana (Ky.) 206 ; Stambaugh v. Yeates, 2 Rawle (Pa.) 161. 12 1 Washburn, Real Prop. 5; Penhallow v. Dwight, 7 Mass. 34, 5 Am. (39) § 42 EMBLEMENTS. [Ch. 2 § 42. Same — Emblements. The principles regulating fructus industrials examined in the preceding section suppose the crops to be planted by the fee simple proprietor of the land. We are now to consider the case of a tenant of the land for life, for years or at will whose estate in the land terminates before the crops have been harvested, and the right to such crops as between him or his per- sonal representative and the fee simple proprietor. Under certain conditions the tenant (or his personal representa- tive) is given the right, notwithstanding the termination of his in- terest in the land, to enter thereon and continue the cultivation of the crop, to harvest the same when it matures, and to remove it when harvested. In such cases the crops are termed "emblements" and are regarded as personalty belonging to the tenant, or if he be dead to his personal representative.^^ The right pertains to a ten- ant for life,^* or for the life of another, where cestui que vie dies in the lifetime of the tenant pur auter vie ; ^^ to a tenant at will, whose estate is terminated without his default; ^' to a tenant from year to year, where the tenancy is terminated by notice from the land- lord; ^^ and in certain cases even to a tenant for years, if his estate terminates irregularly and unexpectedly, as where the landlord is himself only a life tenant and dies, thereby immediately terminat- ing the interest of his tenant for years. ^' But tenants by sufferance are not entitled to emblements, since they have no rightful posses- sion, being only not trespassers; ^* nor are those who have unlaw- fully disseised another.^" Dec. 21 ; Heard v. Fairbanks, 5 Mete. (Mass.) Ill, 38 Am. Dec. 394 ; Pat- tison's Appeal, 61 Pa. 294, 100 Am. Dec. 037; Evans v. Roberts, 5 B.'& Cr 13 2 Min. Insts. 102 et seq. ; 2 Bl. Com. 122, 123; 1 Wasbburn, Real Prop. 102. 1*2 Min. Insts. 102; 2 Bl. Com. 122; Thornton v. Burch, 20 Ga. 791. 15 Graves v. Weld, 5 B. & Ad. 105; Bradley v. Bailey, 56 Coun. 374, 15 Atl. 740, 1 L. R. A. 427, 7 Am. St. Rep. 316; Bevans v. Briscoe, 4 Har. & J. (Md.) 139 ; Reilly v. Ringland, 39 Iowa, 106. 10 2 Min. Insts. 104, 199; Gland's Case, 5 Co. 116a; Harris v. Friuk, 49 N. Y. 24, 10 Am. Rep. 318 ; Samson v. Rose, 65 N. Y. 411 ; Ellis v. Paige, 1 Pick. (Mass.) 43 ; Reilly v. Riufiland, 39 Iowa, 106 ; Brown v. Thurston, oO Me. 126, 96 Am. Dec. 438 ; Howell v. Scbenck, 24 N. J. Law, 89. "2 Taylor, Landl. & Ten., § 534; Kingsbury v. Collins, 4 Bing. 202: Clark V. Harvey, 54 Pa. 142. 18 2 Min. Insts. 104; 2 Bl. Com. 122 et seq., 146; 1 Washburn, Real Prop. 102 et seq. is>2 Min. Insts. 104; 2 Bl. Com. 146; 1 Washburn, Real Prop. 103; Doe v. Turner, 7 M. & W. 226 ; Miller v. Cheney, 88 Ind. 466, 470. 2 Hodgson v. Gascoigne, 5 B. & Aid. 88; DeMott v.' Hagerman, 8 Cow (N. Y.) 220, 18 Am. Dec. 443; Brothers v. Hurdle, 32 N. C. 490, 51 Am! Dec. 400 ; McGinniss v. Fernandes, 135 HI. 69, 26 N. E. 109, 25 Am.' St. Rep (40) Ch. 2] EMBLEMENTS REQUISITES, § 43 The tenant's right to emblements is based upon grounds of justice and expediency. There is an obvious propriety in permitting him that sows to reap, so that he may be compensated for the labor and expense of tilling, manuring and sowing the soil. And public policy is thereby best subserved, in that it encourages husbandry by as- suring to the cultivator of the soil the fruits of his labor, thereby leading him, because he sows in hope, to sow liberally, and, since he is sure to reap, to cultivate with diligence and thrift. ^^ It should be particularly noted that the doctrine of emblements does not warrant the continued occupancy by the tenant of any part of the premises except so much as may be occupied by the growing emblements themselves.-'' Subject to this qualification, the tenant may enter upon the land, cultivate the crop, cut and har- vest it when mature, and remove and dispose of it ; and if inter- fered with in the reasonable exercise of these privileges by the land- lord, he may maintain an action therefor.^' Whether, at common law, the tenant shall be required to pay rent for the premises occupied by the emblements for the time elapsing between the termination of his estate and the harvesting, is some- what doubtful. But the better opinion seems to be that, unless the estate is terminated by the act of the lessor (as in case of an estate at will), the tenant or his personal representative shall pay rent.^* § 43. Same — Requisites for Emblements — Enumeration. The general common-law principle of emblements is that the fructus in- dustriales belong to the tenant or his personal representative in all those cases where crops have been sowed by the tenant, whose es- tate is unexpectedly terminated before harvest, without default of the tenant (by the act of God, of the law or of a third person), and in no other cases. ^° Put negatively (for convenience of treatment), emblements will not be allowed in the following cases, discussed more fully in "the f^ ' ""' — — 34" ; Craig v. Watson, 68 Ga. 115 ; Rowell v. Klein, 44 Ind. 290, 15 Am. Rep. 235. But, if a disseisor plant crops and harvest them, it is said that he acquires a good title to them. 1 Tiffany, Real Prop. § 224 ; Faulcon v. Johns- ton, 102 N. 0. 264, 9 S. B. 394, 11 Am. St. Rep. 737 ; Stockwell v. Phelps, 34 N. Y. 36.3, 90 Am. Dec. 710; Page v. Fowler, 39 Cal. 412, 2 Am. Ren. 4f!2 ; Jenkins v. McCoy, 50 Mo. 348 ; Lindsay v. Winona & St. P. R. Co., 29 Minn. 411, 13 N. W. 191, 43 Am. Rep. 228. But see Liford's Case, 11 Co. 51. 212 Min. Insts. 102; 2 Bl. Com. 122; 1 Washburn, Real Prop. 101, 102; 1 Lom. Dig. 41. 22 2 Min. Insts. 102, 103; 2 BI. Com. 122, 123; 1 Washburn, Real Prop. 102 et seq. 23 2 Min. Insts. 102 ; Forsythe v. Price, 8 Watts (Pa.) 282, 34 Am. Dec. 465. 2* 2 Min. Insts. 106 ; 2 Plowd. Rep. Queries, 44a, 239 ; 1 Washburn, Real I'rop. 105 ; 1 Lomax, Ex'rs, 430. 2s2 Min. Insts. 103, 105, et seq. ; 2 Bl. Com. 122, 123, note (3); 1 Wash- (41) § 44 EMBLEMENTS — REQUISITES. [Cll. 2 succeeding sections : (1) Where the tenant expects his term to end before harvest and yet sows; (2) where his estate, even though of uncertain duration, is terminated before harvest by his own act or default; (3) where the crops are not sown by the tenant; (4) where the land is lost to the tenant by title paramount. § 44. Same — I. Tenant's Estate Expected to Terminate before Harvest. In this case, all the grounds upon which emblements are given cease to apply. A tenant who plants crops knowing that his interest in the land will cease before they can be harvested has no claim in justice or policy to the consideration of the law. He has generously or foolishly bestowed his time, his labor and his money upon the land for the benefit of his successor in interest, not for his own.^" Hence a lessee for a term certain (say, one year), who plants crops which cannot mature before his term is ended, is en- titled to no emblements.^'' But if the lessee's estate be for his life, or for the life of another, or until a marriage or other uncertain event, etc., and the lessee sows and his estate terminates without his default before harvest by his death, or 'the death of cestui que vie, or by the occurrence of the marriage or other event, his personal representative (in the first case), or he himself (in the second and third), may have free ingress and egress to cultivate, harvest, and carry away the crop.^* A tenant by the curtesy is a life tenant, and therefore his person- al representative is entitled to emblements.^" But in the case of a tenant in dower, though she also is a life tenant, the common law prohibited emblements to her personal representative ; the reason ■ assigned being that she was prestimed to have gotten the crops growing on her husband's lands at the time of his death, and that she ought not to get this benefit at the end as well as at the begin- ning of her estate.^" But by the English statute of Merton ^^ em- blements of dower lands may pass and be disposed of as in other cases of life estates. ■> So, also, though the tenant be a lessee for years (a term certain), burn, Real Prop. 103 et seq. ; Price v. Pickett, 21 Ala. 741 ; Hawkins v. Skeggs, 10 Humph. (Tenn.) 31; Graves v. Weld, 5 B. & Ad. 105; Bulwer v. Bulwer, 2 B. &_Ald. 471. 26 2 Min. Insts. 105; 2 Bl. Com. 122, note (.3) ; 1 Washburn, Real Prop. 103. 27 Harris v. Carson, 7 Leigh (Va.) 632, 30 Am. Dec. 510 ; Whitmarsh v. Cutting, 10 Johns. (N. Y.) 360; Sanders v. Ellington, 77 N. C. 255; Dircks V. Brant, 56 Md. 500 ; Heiadrlxon v. Cardwell, 68 Tenn. 389, 40 Am. Rep. 93. 28 2 Min. Insts. 103; 1 Lorn. Dig. 42; 2 Bl. Com. 122. See, also, cases cit- ed ante, § 42. 2 2 Min. Insts. 103, 104; 2 Bl. Com. 122. 30 2 Min. Insts. 104; 1 Washburn, Real Prop. 103. 81 20 Hen. Ill, c. 2. (42) Ch. 2] EMBLEMENTS — REQUISITES. § 46 yet if he receive his lease from one who is himself only a tenant for life, and who dies, thereby unexpectedly terminating the former's estate, the lessee is upon common-law principles entitled to emble- ments. Even though the landlord (the tenant for life) should termi- nate his estate by his own act (and so not himself be entitled to em- blements), yet that circumstance will not prevent his sublessee or assignee from asserting his claim thereto. Hence, if a tenant du- rante viduitate (during widowhood) should sublease or assign part of the premises, and then marry in defiance of the prohibition, though she would by her marriage defeat her own title to the em- blements growing on that portion of the premises retained by her, the sublessee or assignee of the other part would not lose his right to the crops growing on his part, he being in no default. ^^ § 45. Same — Right to Away-Going Crops by Local Custom. In England and in some of these states (for example, Pennsylvania, New Jersey, and Delaware), by the usage of particular localities, which is allowed to enter into and form a part of the contract of lease, a tenant for a term certain, who sows with a knowledge that his lease will expire before harvest, may notwithstanding be enti- tled to the emblements. This is termed the doctrine of "away-go- ing crops" (though it might more properly be styled the "right of the away-going tenant to the crops)." ^^ § 46. Same — II. Tenant's Estate Terminated by His Own Act or Default. Here again neither justice nor policy — the grounds up- on which emblements rest — demands that the tenant, even though he knows not the end of his term, should have emblements. He has deliberately terminated his estate before harvest by his own act or default, and he has no right to complain of the ensuing consequen- ces. He can claim emblements only where his estate is determined by an act of God, of the law, of the lessor, or of some person other than himself.^* Hence, if a tenant at will himself terminates the estate, if a ten- 32 2 Min. Insts. 104 ; 2 BI. Com. 124 ; 1 Washburn, Real Prop. 104 ; Bevans V. Briscoe, 4 Har. & J. (Md.) 139. 33 2 Min. Insts. 105; 1 Washbiu-n, Real Prop. 106; Wigglesworth v. Dalli- son, 1 Dougl. 201, 207, note (8) ; Stultz v. Dickey, 5 Bin. (Pa.) 285, 6 Am. Dec. 411; Biggs V. Brown, 2 Serg. & R. (Pa.) 14; Van Doren v. Everitt, 5 N. J. Law, 460, 528, 8 Am. Dee. 615; Shaw v. Bowman, 91 Pa. 414; Forsythe v. Price, 8 Watts (Pa.) 282, 34 Am. Dec. 465; Templeman v. Blddle, 1 Har. (Del.) 522; Clark v. Banks, 6 Houst. (Del.) 584; Poster v. Robinson, 6 Ohio* St. 90. 34 2 Min. Insts. 105, 106 ; 1 Washburn, Real Prop. 103 ; Gland's Case, 5 Co. 116a; Davis v. Eyton, 7 Bing. 154; Carney v. Mosher, 97 Mich. 554, 56 N. W. 935 ; Samson v. Rose, 65 X. Y. 411 ; Hawkins v. Skeggs, 10 Humph. (Tenn.) 31 ; Debow v. Colfax, 10 N. J. Law, 128. (43) § -46 EMBLEMENTS REQUISITES. [Ch. 2 ant durante viduitate marries, if a tenant for life commits suicide, or if a tenant "during coverture" himself commits the act which leads to a divorce terminating his estate, in^all these cases emble- ments will be denied. With respect to the last mentioned, it may be observed that the mere commencement of divorce proceedings by the party aggrieved does not deprive that party of emblements, for it is the sentence of the court that dissolves the marriage and terminates the tenancy, and that is an act of the law.^^ It is further to be noted that if the tenant sells the growing crop, and then terminates his estate by his own act, the assignee of the crop will have no more right thereto than the tenant himself, and cannot claim the emblements.^* § 47. Same — III. Crop Not Planted by Tenant. At common law the tenant is not entitled to emblements, if at the time his es- tate terminates he has merely prepared the ground for the crop, without having planted it ; nor is he, it seems, even entitled to com- pensation for such preparation.'^ Again, not only must the crop have been planted at the time of the termination of the tenant's estate, but it must have been planted by the tenant himself (or his agent). Hence, if A., seised of land, sows it, and afterwards conveys it to B. for life, remainder to C. for life, and B. dies before harvest, B.'s executor shall not have em- blements, but they shall go with the land to the remainderman (C) ; and should C. also die before harvest, they will return with the land to the reversioner (A).'* Upon like principles, if a woman seised in fee or for life sows her land and then marries, and her husband dies before the crop is sev- ered, she, and not his personal representative, shall have emble- ments, though, if the husband survive until after the harvest, he is at common law entitled to the crop.'* And so, if a life tenant plants crops, and afterwards assigns or sublets his estate to another, and dies before harvest, the assignee or sublessee is not entitled to the crops, for he has not planted them himself." 35 2 Mln. Insts. 105, 106; 2 Bl. Com. 122, note (3), 123; 1 Washburn, Real Prop. 103; 1 Lomax, Bx'rs, 422; Gland's Case, 5 Co. llGa. 36 1 Washburn, Real Prop. 104 ; Debow v. Colfax, 10 N. J. Law, 12S. 3T2 Mln. Insts. 103; 2 Bl. Com. 122, 123, note (3); 1 Washburn, Real Prop. «103 et seq. 38 2 Mln. Insts. 106 ; 1 Lomax, Ex'rs, 422 ; Grantham v. Hawley Hobart 133. 39 2 Mln. Insts. 106; 1 Washburn, Real Prop. 104. 40 1 Washburn, Real Prop. 104. (44) Ch. 2] MINERALS AND MINES. § 49 § 48. Same — IV. Tenant's Estate Terminated by Title Para- 1 mount. In such case, the tenant's lease being avoided ab initio, the right to emblements does not attach.*^ Hence, if the owner of the fee mortgages the land, and after- wards leases it to a tenant who plants crops, if the mortgage is foreclosed before harvest, the mortgagee's title is superior to that of the tenant (supposing the mortgage to have been recorded or the tenant to have had notice thereof), and the tenant cannot claim em- blements as against the mortgagee unless he has planted with the mortgagee's consent. The crops pass with the land to the mort- gagee, whether planted by the mortgagor or his tenant. *- But the opposite result obtains if there be merely a priority of lien, no estate or title in the land passing to the lien creditor — and that, even though the lien is acquired before the land is leased. A mere lien, even a superior lien, does not create a title paramount. Hence a purchaser under a judgment lien is postponed to a tenant who leases the land and plants it before a sale of the land under the judgment lien.*^ § 49. Minerals and Mines. By the term "minerals," as here used, is meant solid rock or ore, not substances of a liquid or gase- ous consistency, like petroleum oil or natural gas, which are also sometimes classified as minerals. Different principles control the latter, and the discussion of them is reserved for a subsequent sec- tion.** As we have heretofore seen, the ownership of land in general in- cludes not only the surface of the soil, but everything beneath it,*^ including all veins and strata of ore, clay, stone, etc., imbedded in the earth; and while -thus "in place" these substances are real es- tate, though upon a severance therefrom by one authorized to make it they become personalty, like other things severed from land.*= *i King V. Fowler, 14 Pick. (Mass.) 238 ; Howell v. Schenck, 24 N. J. Law, 89. 42 2 Min. Insts. 106 ; 1 Washburn, Real Prop. 106 ; Crews v. Pendleton, 1 Leigh (Va.) 297, 19 Am. Dec. 750 ; Lane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dee. 105; Gilman v. Wills, 66 Me. 273; Downard v. Groff, 40 Iowa, 597. See Lewis V. Klotz, .39 La. Ann. 259, 1 South. .539 ; Cassilly v. Rhodes, 12 Ohio, 88. 43 2 Min. Insts. 106 ; 1 Washburn, Real Prop. 106 ; Bittinger v. Baker, 29 Pa. 66, 70 Am. Dec. 154. 44 Post, § 61. 45 Ante, §§ 16, 17. 46 Forbes v. Gracey, 94 U. S. 762. 24 L. Ed. 313 ; Merced Mining Co. v. Boggs, 3 Wall. 304, 18 L. Ed. 245 ; Brown v. Morris, 83 N. C. 2.j1 ; State v. Burt, 64 N. C. 619 ; Noble v. Sylvester, 42 Vt. 146 ; Dunham v. Kirkpatrick. 101 Pa. 36, 47 Am. Rep. 696 ; Stoughton's Appeal, 88 Pa. 198 ; Hartwell v. (45j § 49 MINERALS AND MINES. [Ch. 2 The minerals in place under the surface are susceptible of an ownership distinct from that of the surface, and may constitute a separate corporeal hereditament. The title to the surface and soil may be vested in one person, and that to the mines and minerals under the surface in another.*'' In construing grants of mining rights, care must be taken to dis- tinguish between the conveyance of the minerals themselves in place (which usually confers upon the grantee the exclusive owner- ship and control thereof, and implies a license to dig for and remove them) and the mere grant of an authority, license, or profit a pren- dre, under which the grantee is entitled to mine the ore, stone, etc., and remove it, in which case he has no interest in the land or in any ore save that actually mined. In the latter case, also, unless ex- pressly stipulated, the grantee's right to mine is not exclusive of the right of the owner of the soil or his assignee to do likewise.** In either aspect, in the absence of stipulation, the grantee is en- titled to so much of the minerals only as he may obtain without detriment to the rights of the owner of the surface.*' And on the other hand the surface owner may not impose additional burdens, such as buildings, etc., on the surface, so as to impair the rights of the mine owner. ^" Camman, 10 N. J. Eq. 128, 64 Am. Dec. 448. By the common law of England, however (though it is otherwise in this country, at least as to the public lands of the United States), all gold and silver ores, though found upon the lands of private individuals, belong to the king by virtue of the royal prerogative See Case of Jlines, Plowd. 310 ; Moore v. Smaw, 17 Cal. 222, 79 Am. Dec. 123. *TAnte, § 17; Interstate Coal & Iron Co. v. Clintwood Coal & Timber Co., 105 Va. .574, 54 S. E. 593 ; Lee v. Buni£;ardner, 86 Va. 315, 10 S. E. 3 : Stough- ton V. Leigh, 1 Taunt. 402 ; Chester Emery Co. v. Lucas, 112 Mass. 424 ; Cald- well V. Fulton, 31 Pa. 47.'>, 72 Am. Dec. 760 ; Lillibridge v. Lackawanna Coa! Co., 143 Pa. 293, 22 Atl. 1035. 13 L. R. A. 627, 24 Am. St. Rep. 544 ; Marvin v. Brewster Iron llin. Co., 5.1 N. Y. .538, 14 Am. Rep. 322 ; Kincaid v. McGowan, 88 Ky, 91, 4 S. W. 8(12. 13 L. R. A. 289; Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368; Massot v. Moses, 3 S. C. 168, 16 Am, Rep. 697 ; Sloan v. Lawrence Furnace Co., 29 Ohio St. 568. 48 Castillero v. United States, 2 Black. 168, 17 L, Ed. 360; Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955 : Reynolds v. Cook, 83 Va. 817. 3 S. E. 710, 5 Am. St. Rep. 317; Williams v. Gibson, 84 Ala. 228, 4 South. 350. 5 Am. St. Rep. .368; New .lersey Zinc Co. v. New .Tersey Franklinite Co., ]3 N. .1. Eq. 322 ; List v. Cotts, 4 W. Va. .543 ; Ryekman v. Gillis, 57 X. Y. 6S, 15 Am. Rep. 464; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Grubb V. Grubb, 74 Pa. 25; Scioto Fire Brick Co. v. Pond, 88 Ohio St, 65; Hart- ford & S. Ore Co. v. Miller, 41 Conn. 112; Stockbridge Iron Co. v, Hudson Iron Co., 107 Mass. 290 ; Massot v. Moses, 3 S. C. 108, 16 Am. Rep. 697 ; Funk V. Haldeman, 53 Pa. 229; Silsby v. Trotter, 29 N. .1. Eq. 228. 49 Coleman v. Chadwick, 80 Pa. 81, 21 Am. Rep. 93. 50 1 Washburn, Real Prop. 5; Green v. Putnam, 8 Cush. (Mass.) 21; Hor- ner v. Watson, 79 Pa. 242, 21 Am. Rep. 55. (40) Ch. 2] SURFACE STREAMS. § 53 § 50. Water and Water Rights — Corporeal Rights. Water rights may be either corporeal, as where the question is of the own- ership and the right to use the water itself, or incorporeal ease- ments in the lands of another, carrying the right to rid one's land of surplus or undesirable water by shedding it upon or through adjoining land. The former class only will be considered under this discussion of corp>oreal property, the latter being postponed to be treated in the chapter dealing with Easements. Our attention will here be confined to water viewed as tangible, corporeal property, and in this aspect we shall consider owner- ship in (1) surface streams ; (2) subterranean streams ; and (3) percolating waters. °^ § 51. I. Surface Streams. Streams flowing in natural channels are the God-given means of furnishing water to man and beast and to the thirsty earth. They furnish the natural drainage of cities, supply in increasing amount the power that drives mills and fac- tories, and constitute natural and economical highways for naviga- tion and commerce. It is manifest, therefore, that rights to the use, consumption or diversion of running water may be of very great consequence, and fully deserve the protection and regulation of the law. This pro- tection and regulation the law affords by the application of well- defined rules, which may, for the most part, be summarized in the general statements that each riparian proprietor is entitled to use the water and to have it continue to flow as it has been accustomed to flow, and, on the other hand, since the other riparian owners have the same right, that he cannot himself interfere materially with such flow.'" Otherwise expressed, each riparian owner may make such use of the water flowing through or past his land as he may choose, provided he does not impair the equal rights of the other riparian proprietors. The main question is when does he impair such rights. § 52. Same — 1. Rights of Upper Riparian Owners as against Lower Proprietors. This topic naturally divides itself into two heads: (1) The right to appropriate, use and consume the water as it passes : and (2) the right to pollute it. § 53. Same — A. Appropriation of Water. The well-settled gen- eral rule on this point is that each riparian proprietor has ex jure naturae an equal right to the reasonable use of water running in a 51 See Carpenter v. Gold, 88 Va. 551, 14 S. E. 329 ; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391. 52 1 Tiffany, Real Prop. § 297 ; 3 Kent. Com. 439 et seq. ; Angell, Water Courses, §§ 88, 95, et seq. ; Gould, Waters, § 204. (47) § 53 APPKOPBIATION OF WATEK. [Ch. 2 natural course through or by his land for every useful purpose to which it can be applied, whether domestic, agricultural or manu- facturing, provided it continues to run, after such use, as it is wont to do, without material diminution or alteration and without pol- lution; but he cannot diminish its quantity materially or exhaust it (except perhaps for domestic purposes and in the watering of cattle) to the prejudice of the lower proprietors, unless he has ac- quired a right to do so by grant, prescription or license.^' It is to be observed that, if the use of the water by the upper pro- prietor is unreasonable or otherwise illegal, the lower proprietor may maintain an action or sue out an injunction, although there may have been no actual, but only potential, damage; that is, a possible future injury from the present invasion of the right.''* In such cases the action or injunction is permitted in order to vindi- 53 2 Min. Insts. 28; 3 Mln. Insts. 17; Hoy v. Sterrett, 2 Watts (Pa.) 327, 27 Am. Dec. 313; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391; Tillotson V. Smith, 82 N. H. 90, 64 Am. Dec. 355 ; Elliot y. Fitchburg R. Co., 10 Cush. (Mass.) 191, 57 Am. Dec. 85 ; Garwood v. New York Cent. & H. R. R. Co., 83 N. Y. 400, 38 Am. Rep. 452; Gelilen v. Knorr, 101 Iowa, 700, 70 N. W. 757, 36 L. R. A. 697, 63 Am. St. Rep. 416 ; Benton v. Johncox, 17 Wash. 277, 49 Pac. 495, 39 L. R. A. 107, 61 Am. St. Rep. 912 ; White v. East Lake Land Co., 96 Ga. 415, 23 S. E. 393, 51 Am. St. Rep. 141 ; Tampa Waterworks Co. V. Cline, 37 Pla. 586, 20 South. 780, 33 L. R. A. 376, 53 Am. St. Rep. 202. As to the proprietor's right to exhaust the supply of water in his domestic use and in watering his cattle, see Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394 ; Anthony v. Lapham, 5 Pick. (Mass.) 175 ; Arnold v. Foot, 12 Wend. (N. Y.) 330; Anderson v. Cincinnati Southern Ry., 86 Ky. 45, 5 S. W. 49, 9 Am. St. Rep. 263 ; Ferrea v. Knipe, 28 Cal. 341, 87 Am. Dec. 128 ; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631. That only reasonable use of the water may be made for manufacturing and irrigating purposes, see Pitts v. Lancaster Mills, 13 Mete. (Mass.) 156; Gould v. Boston Duck Co., 13 Gray (Mass.) 442 ; Ulbricht v. Eufaula Water Co., 80 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72 ; Jlerritt v. BrinkerhofE, 17 Johns. (N. Y.) 306, 8 Am. Dec. 404 ; Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373 ; Wheatley v. Chrisman, 24 Pa. 298, 64 Am. Dec. 657 ; Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636, and note. As to what Is a reasonable use of water for manufacturing purposes, see (in addi- tion to cases above cited) Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723 ; Cary V. Daniels, 8 Mete. (Mass.) 406, 41 Am. Dec. 532 ; Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468 ; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105; Pool V. Lewis, 41 Ga. 302, 5 Am. Rep. 526; Baltimore City v Appold 42 Md. 442. 6* Trevett v. Prison Ass'n of Virginia, 98 Va. 332, 30 S. E. 373, 50 L. R. A. 564, 81 Am. St. Rep. 727, 6 Va. Law Reg. 148, note; Ulbricht v. Eufaula Wa- ter Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72 ; Parker V. Griswold, 17 Conn. 288, 42 Am. Dec. 730; Bolivar Mfg. Co. v. Nejionset Mfg. Co., 16 Pick. (Mass.) 241, 247 ; Cary v. Daniels, 8 Mete. (Mass.) 4G6, 41 Am. Dec. 532 ; Davis -s. Getchell, 50 Me. 602, 79 Am. Dec. 036, note; Heath v Williams, 25 Me. 200, 43 Am. Dee. 272. (48) Ch. 2] APPEOPEIATION OF WATER. § 53 cate the plaintiff's right and to prevent the loss of it by adverse tiser, or prescription, which might result if the user were permitted to continue unquestioned for the period of prescription.^'' While an upper proprietor has no legal right to divert permanent- ly the flow of the water from the lower proprietors, he may reason- ably alter the course of the stream while it is upon his land for pur- poses of irrigation, though he thereby lengthens the channel through which it must run before reaching the lands below and thus causes some decrease of its volume, if only by evaporation and absorption. De minimis non curat lex, and a right of action by a lower proprietor under such circumstances would depend upon the nature and extent of the injury complained of and the manner of using the water. '^^ But if the diversion be for an artificial use (for example, supplying a city with water), in contradistinction to a natural use (for example, domestic or agricultural purposes), it seems such a diversion is actionable without proof of special dam- age.®^ In conclusion of the subject, it is to be observed that the right to use water running in natural channels is confined to those who own land immediately upon the stream, and does not extend (nor can it be assigned) to persons owning property not bordering on , the stream.^* 5 5 Newlaall v. Ireson, 8 Gush. (Mass.) 595, 54 Am. Dee. 790; Garwood v. New York Cent. & H. R. R. Co., 83 N. Y. 400, 38 Am. Rep. 452 ; Pillsbury v. Moore, 44 Me. 154, 69 Am. Dec. 91; Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 739; Gardner v. Newburgla, 2 Johns. Ch. (N. Y.) 162, 7 Am. Deo. 526, note. But if the lower proprietor (the complainant) is not actually us- ing the water and is not actually damaged by the misuse thereof, he can re- cover only nominal damages. Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394. Or in equity he can only enjoin the improper use of the stream to the extent that it may work a sensible injury to him "for any purpose for which he may now or in the future have use for said water." Ulbricht v. Eufaula Wa- ter Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72; Garwood V. New York Cent. & H. R. R. Co., 83 N. Y. 400, 38 Am. Rep. 452. 5 6 Cook V. Seaboard Air Line Ry., 107 Va. 35, 57 S. E. 564, 10 L. R. A. (N. S.) 966, 122 Am. St. Rep. 825; Norton v. Volentine, 14 Vt. 239, 39 Am. Dec. 220; Blanchard v. Baker, 8 Greenl. (Me.) 253, 23 Am. Dec. 504; Stein V. Burden, 29 Ala. 127, 65 Am. Dec. 394 ; Canfleld v. Andrews, 54 Vt. 1, 41 Am. Rep. 828 ; Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385. The right to divert freshet water is no less clear than the right to divert the ordinary stream, provided the extra water be not thereby thrown in increased volume on adjacent land. Cook v. Seaboard Air Line Ry., supra ; Burwell v. Hob- son, 12 Grat. (Va.) 322, 65 Am. Dec. 247. 5T Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72. 58 Swindon Water Works Co. v. Canal Nav. Co., L. R. 7 H. L. 697 ; Stock- port Waterworks Co', v. Potter, 3 Hurl. & C. 300; Higgius v. Plemington Wa- ter Co., 36 N. J. Eq. 538 ; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 South. Minor & W.Real Peop. — 4 (49) § 54 POLLUTION OF WATER. [Ch. 2 § 54. Same — B. Pollution of Water. In general, the upper pro- prietor cannot in using the water impair its quality, so that it will come to the lower proprietors in a polluted condition.^' But this rule is' qualified by the other, no less important, that each proprie- tor is entitled to a reasonable use of the water as it passes him, and, if pollution is a necessary consequence of a perfectly reasonable use of the water, it is to the lower proprietor damnum absque injuria."" And one who purchases land lying upon a stream permanently polluted by sewage, or with knowledge of such pollution, is never- theless not estopped from maintaining an action for damages for the pollution."^ § 5S. Same — 2. Rights of Lower as against Upper Proprietors — Obstruction of Flow. The right most apt to be claimed by a lower proprietor is that of obstructing the flow of the stream by dams, etc., whereby the water is caused to flow back and submerge the lands of the upper proprietors, or interfere with their mills or factories. In the absence of an agreement express or implied, or a statute authorizing such submergence or interference, it is well settled that the lower proprietor has no such right, since to hold otherwise would be to set at naught the means supplied by Providence for the natural drainage of the country."^ 78, 4 L. R. A. 572, 11 Am. St. Rep. 72 ; Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 17 Pac. 535, 7 Am.- St. Rep. 183. 5 9 Young V. Banlder Distillery Co., [1893] App. Cas. 601; Lewis v. Stein. 16 Ala. 214, 50 Am. Dec. 177; McGenness v. Adriatic Mills, 116 Mass. 177; Merrifleld v. Lombard, 13 Allen (Mass.) 16, 90 Am. Dec. 172 ; Chipman v. Palmer, 77 N. T. 51, 33 Am. Rep. 566 ; McCallum v. Germantown Water Co., .'54 Pa. 40, 93 Am. Dec. 656; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419; Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 South. 26, 30 Am. St. Rep. .546, note. 60 Trevett v. Prison Ass'n of Virginia, 98 Va. 332, 36 S. E. 373, .50 L. R. A. 564, 81 Am. St. Rep. 727 ; Snow v. Parsons, 28 Vt. 459, 07 Am. Dec. 723 : Merrifleld v. City of Worcester, 110 Mass. 216, 14 Am. Rep. 502; Lockwood Co. V. Lawrence, 77 Me. 297, 52 Am. Rep. 763 ; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105 ; Red River Roller Mills v. Wright, 30 Minn. 249, 15 N. W. 167, 44 Am. Rep. 194; Baltimore City v. Warren Mfg. Co., 59 Md. 96; Hazeltine v. Case, 46 Wis. 391, 1 N. W. 66, 32 Am. Rep. 715 ; 1 Tiffany, Real Prop. § 297. 01 Virginia Hot Springs Co. v. Grose, 106 Va. 477, 56 S. E. 222. 62American Locomotive Co. v. Hoffman, 105 Va. 343, 54 S. E. 25. 6 L. R. A. (N. S.) 252 ; McCormick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479 ; Pixlev V. Clark, 35 N. Y. 520, 91 Am. Dec. 72 (injury by percolation, not by sub- mersion) ; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406 ; Thompson v. Crocker, 9 Pick. (Mass.) .59; Gould v. Boston Duck Co., 13 Gray (Mass.) 442; Omelvany v. Jaggevs, 2 Hill (S. C.) 634, 27 Am. Dec. 417; Cowles v. Kidder, 24 N. H. 364. 57 Am. Dec. 287; Casebeer v. Mowry, 55 Pa. 419, 93 Am. Dec. 766; Neal v. Henry, Jleigs (Tenn.) 17, 33 Am. Dec. 125; Heath v. (50) Ch. 2] PUBLIC OR NAVIGABLE WATERS. § &Q On the other hand, an obstruction of the flow which causes no injury to upper proprietors is unobjectionable, and the fact that injury is caused thereby in times of extraordinary flood, such as is not reasonably to be looked for, is immaterial."* But submergence of, or interference with, the rights of owners above, when the re- sult of ordinary or periodical freshets, comes within the rule, and the lower proprietor is liable for the damage resulting."* Before leaving the subject, it may be well to state that acts have been passed in many states authorizing imder certain circumstan- ces these obstructions of the flow, and providing for the compensa- tion of upper proprietors whose lands are subjected thereby to over- flow, etc. These are usually known as "Mill Acts." "' § 56. Same — 3. Public or Navigable Waters. A distinction is to be noted between public or navigable streams and those that are private or unnavigable. At common law, navigable or public waters are those wherein the tide ebbs and flows."" But while, in the United States, the com- mon-law rule with regard to tidal waters is generally followed, this rule has been quite generally modified by the courts, and any water in this coiintry is navigable (and therefore public) which is navi- gable in fact; that is, capable of transporting the products of the country in mass, or upon which general commerce may be conduct- ed."' In other words the stream must be one capable of being nav- igated by vessels such as are usually employed in commerce (say of twenty tons burden or more) and which communicates with other states or countries, whether the tide ebbs and flows therein or not Williams, 25 Me. 209, 43 Am. Dec. 265; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631. esAmerican Locomotive Co. v. Hoffman, 105 Va. 343, 54 S. B. 25, 6 L. R. A. (N. S.) 252 ; Smith v. Agawam Canal Co., 2 Allen (Mass.) 355 ; Emery v. Raleigh & G. R. Co., 102 N. C. 209, 9 S. E. 139, 11 Am. St. Rep. 727 ; Sabine V. Johnson, 35 Wis. 185; Sullens v. Chicago, R. I. & P. Ry. Co., 74 Iowa, 659, 38 N. W. 545, 7 Am. St. Rep. 501 ; Dofman v. Ames, 12 Minn. 451 (Gil. 347) ; Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458. See Cook v. Seaboard Air Line Ry., 107 Va. 35, 57 S. E. 564, 10 L. R. A. (N. S.) 966, 122 Am. St. Rep. 825. a^American Locomotive Co. v. Hoffman, 105 Va. 343, 54 S. E. 25, 6 L. R. A. (N. S.) 252; Sprague v. City of Worcester, 13 Gray (Mass.) 193; Bell v. McCIintock, 9 Watts (Pa.) 119, 34 Am. Dec. 507; Railroad Co. v. Carr, 38 Ohio St. 448, 43 Am. Rep. 428. See, also, cases cited in the preceding note. 66 1 Tiffany, Real Prop. § 297; Gould, Waters, §§ 253, 579-623. 6 6 Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; McCuUough v. Wall, 4 Rich. Law (S. C.) 68, 53 Am. Dec. 715; Stuart v. Clark, 2 Swan (Tenn.) 9, 58 Am. Dec. 49; Rhodes v. Otis, 33 Ala. 578, 73 Am. Dee. 439; Monongahela Bridge Co. v. Kirk, 46 Pa. 112, 84 Am. Dec. 527. 6 7Hickok V. Hine, 23 Ohio St. 523, 13 Am. Rep. 255. (51) § 56 PUBLIC OE NAVIGABLE WATERS. [Ch. 2 and whether directly connected with the ocean or not. All wa- ters other than these are unnavigable and private."* Navigable or public tidal waters, and the beds underlying them, belong to the state and are subject to its control; that is, they be- long to the whole people of the state in their sovereign capacity for the common use of the citizens, the state itself being regarded as a mere trustee. ''^ Hence the Legislature cannot grant an indefeasi- ble title thereto or to the rights therein to any private person, whether individual or corporation.''" But in other respects the pow- er of the state Legislature over the public rights of navigation and fishing in any waters within its bounds is unrestricted, provided it does not interfere with the exclusive power of the federal Legisla- ture to regulate commerce under the federal Constitution.'^ Subject to the limitations above mentioned, a stjite may by law regulate the use of fisheries, oyster beds, wharves, landings, dams, etc., within its territorial limits, though in navigable waters.'^ The line of private ownership is generally ordinary high-water mark, upon the seashore. Below this the land belongs to the state, «a Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224 ; Tlie Daniel Ball, 10 Wall. 563, 19 L. Ed. 999 ; Jackson v. The Magnolia, 20 How. 296, 15 L. Ed. 909; Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. Ed. 1058; Waring v. Clarke, 5 How. 441, 12 I>. Ed. 226 ; Monongahela Bridge Co. v. Kirk, 46 Pa. 112, 84 Am. Dec. 527; People v. Canal Appraisers, 33 N. Y. 461; Bullock V. Wilson, 2 Port. (Ala.) 436 ; Collins v. Benbury, 27 N. C. 118, 42 Am. Dec. 155 ; State v. Black River Phosphate Co., 27 Fla. 276, 9 South. 205. But see Washington Ice Co. v. Shortall, 101 111. 46, 40 Am. Rep. 196; Brown v. Chadbourne, 31 Me. 9, 1 Am. Rep. 641; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 386; Inhabitants of Deerfleld v. Arms, 17 Pick. 41, 28 Am. Dec. 276; Day v. Day, 22 Md. 530. A stream, though not floatable (e. g., for logs) in its usual and continuous condition, may still be regarded as a floatable stream, and as such subject to public use, if by increased precipitation, at seasons recurring periodically with reasonable certainty, the flow of water suffices for the substantial use of the public for the transportation of the products of field or forest. Hot Springs Lumber & Mfg. Co. v. Revercomb, 106 Va. 176, 55 S. E. 580, 9 L. R. A. (N. S.) 894. 6 9 Newport News Shipbuilding & Dry Dock Co. v. Jones, 105 Va. 509, 54 S. E. 314, 6 L. R. A. (N. S.) 247 ; Taylor v. Com., 102 Va. 759, 47 S. E. 875, 102 Am. St. Rep. 865 ; Lansing v. Smith, 4 Wend. (N. Y.) 9, 21 Am. Dee. 89 ; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573 ; Moor v. Veazie, 32 Me. 343, 52 Am. Dec. 655 ; Arnold v. Mundy, 6 N. J. Law, 1, 10 Am. Dec. 356. TO Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. 71 Cooley V. Board of Wardens of Port of Philadelphia, 12 How. 299, 13 L. Ed. 996; Oilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96; Smith v. Maryland, 18 How. 71, 15 L. Ed. 269. See Newport News Shipbuilding & Dry Dock Co. v. Jones, 105 Va. 509, 54 S. E. 314, 6 L. R. A. (N. S.) 247; Taylor v. Com., 102 Va. 759, 47 S. E. 875, 102 Am. St. Rep. 865. T2 Smith V. Maryland, 18 How. 71, 15 L. Ed. 269 ; Com. v. Vincent, 108 Ch. 2] SUBTERRANEAN STREAMS. § 58 subject to the right of the riparian owner to wharf out to the chan- nel." Upon tidal streams, the line is generally, but not always, or- dinary low-water mark, subject to a like easement.'* But with re- spect to navigable nontidal streams the rule differs in different states. In some, the state owns the bed from low-water line; in others, the riparian proprietors own the bed, prima facie, to the middle of the stream.'^ § 57, Same — A. Private or Unnavigable Waters. The bed of a private or unnavigable stream belongs to the owner of the soil through which it flows. But if the banks are owned by different persons, each owns prima facie to the middle of the stream (ad filum fluminis), though this presumption may be rebutted by proof of a grant or exception of the whole bed by one of the owners to the oth- er, or by or to their predecessors in the title.' ° § 58. II. Subterranean Streams. Underground waters may as- sume three different characters or phases. They may consist of (1) water running in well defined and known channels beneath the ground; (2) water running in veins or channels, which cannot be traced; and (3) water running in no defined channel, but merely percolating or oozing through the land. The two last mentioned, however, are practically synonymous, and will be treated together in the following section as percolating water. The present section will be devoted to the discussion of water running in well defined and known channels. It is well settled that subterranean waters which are gathered into sufficient volume to possess an appreciable value, and flow in a clearly defined and known channel, since it is easily practicable to avoid diverting them, are subject to the same rules as govern the use of water flowing on the surface." Mass. 447 ; Burnham v. Webster, 5 Mass. 266 ; Dunham v. Lamphere, 3 Gray (Mass.) 268. See Lewis v. Christian, 101 Va. 135, 43 S. E. 331. T3 Barney v. Keoliuk, 94 U. S. 324, 24 L. Ed. 224. 74 Tiffany, Real Prop. § 264. 7 5 Tiffany, Real Prop. § 265. 76 2 Miu. Insts. 23; Home v. Richards, 4 Call (Va.) 441, 2 Am. Deo. 574; Crenshaw v. Slate River Co., 6 Rand. (Va.) 245, 261; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525 ; Brown v. Chadbournei 31 Me. 9, 1 Am. Rep. 641 ; McCuUough V. Wall, 4 Rich. Law (S. C.) 68, 53 Am. Dec. 715; Stuart v. Clark, 2 Swan (Tenn.) 9, 58 Am. Dec. 49; Ingram v. Threadgill, 14 N. C. 59 ; Welles v. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48 ; Seneca Nation of Indians v. Knight, 23 N. Y. 498; Muller t. Landa, 31 Tex. 265, 98 Am. Dec. 529. The rule stated in the text applies also in this country to those rivers whose beds are not owned by the state, but by the riparian proprietors, subject to the public right of navigation. Ante, § 56. 77 Miller T. Black Rock Springs Imp. Co., 99 Va. 747, 40 S. E. 27, 86 Am. (53) § i58 STJBTBERANEAN STREAMS. [Ch. 2 In limestone regions especially, streams often of great volume and power pursue their subterranean courses for great distances and then emerge from their caverns, furnishing power for machin- ery or supplying towns and settlements with water. To say that these streams might be obstructed or diverted merely because they run through underground channels is to forget the rights and du- ties of man in relation to flowing water. Such streams are sub- ject in general to the same rules as govern surface streams.'* § 59. III. Percolating Waters. In this class, it will be remem- bered, fall not only those waters which merely ooze or filtrate through the soil, but also those that flow in some quantity or vol- ume, but in undefined and unknown channels.'" Such waters are for the most part regarded merely as a part of the land under whose surface they percolate, and fall within the general doctrine giving to the owner of land all that lies beneath the surface, whether it be solid rock, porous earth, veins or strata of stone or ore, or veins or percolations of water. In digging upon his own land for the foundations of a building, for minerals or for wa- ter, the owner of the land may appropriate for his own purposes such percolating waters ; and if in the exercise of such rights he disturbs, intercepts or drains ofif the water collected from under- ground percolations in his neighbor's spring or well, the loss to the neighbor falls within the description of damnum absque injuria, and is in general no ground for an action or an injunction.*" St. Eep. 924, 7 Va. Law Reg. 556; MeXab v. Robertson, 1 App. Cas. 134: Wbeatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721, note. See also, cases citeri in note 78, infra. 7 8Wlieatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721, note; Lybe's Appeal, 106 Pa. 626, 51 Am. Rep. 542; Collins v. Chartiers Valley Gas. Co., 131 Pa. 143, 18 Atl. 1012, 6 L. R. A. 280, 17 Am. St. Rep. 791 ; Saddler v. Lee, 66 Ga. 45, 42 Am. Rep. 62; Tampa Watenvorks Co. v. Cline, 37 Fla. 586, 20 South. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262; Hale v. McLea, 53 Cal. 578 ; Burroughs v. Saterlee, 67 Iowa, 396, 25 N. W. 808, 56 Am. Rep. 350 ; Chasemore v. Richards, 7 H. L. Cas. 349 ; Broadbent v. Ramsbotham, 11 Exch. 602. 7 8Ante, § 58. In this connection the term "defined channel," it is said, means "a contracted and bounded channel, although the course of the stream may be undefined by human knowledge" ; and the term "known" means "the knowledge by reasonable inference from existing and observed facts in the natural or pre-existing condition of the surface of the ground. 'Known,' in this rule of law, is not synonymous with 'visible,' nor is it restricted to knowledge derived from exposure of the channel by excavation." Miller v. Black Rock Springs Imp. Co., 99 Va. 747, 757, 40 S. E. 27, 86 Am. St. Rep. 924, 7 Va. Law Reg. 556; 14 Mews, E. C. L. 1955. 80 3 Min. Insts. 18; Miller v. Black Rock Springs Imp. Co., 99 Va. 747; 40 S. B. 27, 86 Am. St Rep. 924. 7 Va. Law Reg. 556 ; Chasemore v. Richards, 7 II. L. Cas. 349 ; Acton v. Blundell, 12 M. & W. 324 ; Wheelock v. Jacobs, (54) Ch. 2] ICE. § 60 The reasons for this doctrine are obvious. The law does not give one man the right to require another's land to serve as a mere filter for his spring or well. Percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the proper and reasonable enjoyment of one's land. The difficulty, also, of ascertaining the fact of the disturb- ance, as well as its extent, would be insurmountable.^^ But while the owner of land, in the proper and reasonable en- joyment thereof, may divert or intercept percolating water from his neighbor's well or spring, he has no right to pollute it in any way to the injury of the neighbor's water supply. If his reasonable use of his own property involves such pollution, as in case of a cess- pool, it is his duty to keep the polluted water upon his own land.*- § 60. Ice. The right to gather and appropriate ice formed up- on rivers, ponds, etc., depends upon the ownership of the bed under the water from which it is formed. If the water is private, the ice, like the water itself, is part of the realty until severance, and be- longs to the owner of the bed, and not to the owrier of a mere ease- ment of flowage.*^ But ice formed on public waters belongs, it 70 Vt. 162, 40 Atl. 41, 4.3 L. R. A. 105, 67 Am. St. Rep. 659 ; Southern Pac. R. Co. V. Dufour, 95 Cal. 615, 30 Pac. 783, 19 L. R. A. 92, note ; Tampa Wa- terworks Co. V. Cline, 37 Fla. 586, 20 South. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262; Roath v. DriscoU, 20 Conn. 533, 52 Am. Dec. 352; Wheatley V. Baugh, 25 Pa. 528, 64 Am. Dec. 721 ; Lybe's Appeal, 106 Pa. 626, 51 Am. Rep. 542 ; Curtiss v. Ayrault, 47 N. Y. 73 ; Village of Delhi v. Youmans, 45 N. Y. 362, 6 Am. Rep. 100; People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. B. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433, note ; Ocean Grove Camp Meeting Ass'n V. Asbury Park Com'rs, 40 N. J. Eq. 447, 3 Atl. 168; Greenleaf v. Francis, 18 Pick. (Mass.) 117 ; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419 ; Chatfield v. Wilson, 28 Vt. 49. If done maliciously and wantonly, it is questionable if he is to escape liability, though the better view is that this Is immaterial. Borough of Bradford v. Pickles, [1895] App. Cas. 587 ; Chat- field V. Wilson, supra ; Walker v. Cronin, 107 Mass. 556 ; Phelps v. Nowleu, 72 N. Y. 39, 28 Am. Rep. 93. But see Roath v. Driscoll, supra; Wheatley V. Baugh, supra ; Chesley v. King, 74 Me. 164, 43 Am. Rep. 569. 81 Wheatley v. Baugh, 25 Pa. 528, G4 Am. Dec. 721, 723, and other cases cited, supra. 8 2 Tenant v. Gold win, 1 Salk. 360; Humphries v. Cousins, 2 C. P. DIv. 239; Ballard v. Tomlinson, 29 Ch. Div. 115; Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56 ; Haugh's Appeal, 102 Pa. 42, 48 Am. Rep. 193 ; Wahle v. Reinbach, 76 111. 322 ; 1 Tiffany, Real Prop. § 300. ssBrookville & M. Hydraulic Co. v. Butler, 91 Ind. 134, 46 Am. Rep. 580; State V. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224; Woodman v. Pitman, 79 Me. 456, 10 Atl. 321, 1 Am. St. Rep. 342, note; Stevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813 ; Paine v. Woods, 108 Mass. 172 ; Howe v. Andrews, 62 Conn. 398, 26 Atl. 394 ; Bigelow v. Shaw, 65 Mich. 341, 32 N. W. 80O, 8 Am. St. Rep. 902 ; Allen v. Weber, 80 Wis. 531, 50 N. W. 514, 14 L. R. A. 361, 27 Am. St. Rep. 51. (55) § 61 OIL AND GAS. [Ch. 2 seems, to him who first appropriates it,^* except in those states where the bed of a navigable stream belongs to the riparian pro- prietors; ^° the only public right in such streams being that of nav- igation. § 61. Petroleum Oil and Natural Gas. These substances, while undoubtedly partaking in some measure of the nature of minerals, and sometimes classified as such,*" are governed with respect to their ownership by the rules governing the ownership and control of percolating waters, to which, on account of their fluid and fugi- tive character, they are closely analogous. Like them, oil and gas possess the power and tendency to escape from the position they occupy at a given moment.^^ In either aspect, however, they are part of the land under which they are stored, and therefore possession of the land is possession of the oil or gas, the control of which belongs to the owner of the land, and where a conveyance is made of the oil or gas the lease or deed is in effect usually to be considered a grant of part of the cor- pus of the estate, and not of a mere profit a prendre, at least where the grantee is thereby given the exclusive right to take the oil and gas.** I But owing to its fugitive nature, if the oil or gas escape from the land under whose surface it is stored, and go into other land or come under another's control, the title of the former owner is lost.*' 81 Barrett v. Eockport Ice Co., 84 Me. 155, 24 Atl. 802, 16 L. R. A. 774; Washington Ice Co. v. Shortall, 101 111. 46, 40 Am. Eep. 196; Inhabitants of West Roxbury v. Stoddard, 7 Allen (Mass.) 158 ; Wood v. Fowler, 26 Kan. 682, 40 Am. Eep. 330 ; Reysen v. Roate, 92 Wis. 543, 66 N. W. 599. But see McFadden v. Haynes & De Witt Ice Co., 86 Me. 319, 29 Atl. 1068. See 1 Tiffany, Real Prop. § 270. 8 5 1 Washburn, Real Prop. (6th Ed.) § 2, note; People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 6 N. W. 636, 38 Am. Rep. 246. 8 6 Ante, § 49; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; People's Gas Co. v. Tyner, 131 Ind. 277,' 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433 ; Funk v. Haldeman, 53 Pa. 229. STKler V. Peterson, 41 Pa. 362; Westmoreland & Cambria Natural Gas Co. V. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731. See Wood County Petroleum Co. v. West Virginia Transp. Co., 28 W. Va. 211, 57 Am. Rep. 650. 88 Stoughton's Appeal, 88 Pa. 198, 201 ; Westmoreland & Cambria Natural Gas Co. V. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731; Hague v. Wheeler, 157 Pa. 324, 27 Atl. 714, 22 L. R. A. 141, 37 Am. St. Eep. 736 ; Hall V. Reed, 15 B. Hon. (Ky.) 479; Columbian Oil Co. v. Blake, 13 Ind. App. 680, 42 N. E. 234. See Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 293 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645. 8 8 People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433; Westmoreland & Cambria Natural Gas Co. r. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304. (50) Ch. 2] OIL AND GAS. § 61 And if an adjoining, or even a distant, owner drills his land and taps the gas or oil deposit, so as to disturb or destroy the flow of oil or gas on the land of another, the latter has no remedy. The substances have become temporarily at least the property of the former and under his control.'" 90 Brown v. Spilman, 155 IT. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Peo- ple's Gas Co. V. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 433, 31 Am. St. Rep. 433; Westmoreland & Cambria Natural Gas Co. V. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731. (57) CHAPTER III. INCORPOREAL HEREDITAMENTS. 62. I. Annuities and Corodies. 63. II. Franchises — In General. 64. , Impairment or Rescission of Francliise. 65. Exclusiveness of Franchise. 66. III. Profits a Prendre and Commons. 1. General Nature. 67. 2. Commons Annexed to Land or in Gross. 68. 3. Instances of Profits S, Prendre or Commons. A. Common of Pasture. 69. B. Other Instances of Commons. 70. 4. Apportionment of Commons. 71. IV. Rents — Different Meanings of Term "Rent" 72. Definition of a Rent. 73. Qualities of a Rent. 1. A Right. 74. 2. To a Certain Profit 75. 3. Issuing Periodically. 76. 4. Out of Lands and Tenements Corporeal. 77. 5. In Compensation or Return (Reditus). 78. 6. For Land That Passes. 79. Rents Service, Rents Charge and Rents Seek. 80. 1. Rents Service. 81. 2. Rents Charge and Rents Seek. 82. Estates Which May Be Had in Rents. 83. Same — Maximum Estate iu Rent Service. 84. Apportionment of Rents. § 62. I. Annuities and Corodies. An annuity is a right to claim a certain yearly (or periodical) sum of money in fee simple, for life ,,or for years, and chargeable only on the person of the grantor.^ •X corody is very similar in its nature to an annuity, being a right to claim a certain periodical allotment of victual and provision for one's maintenance in fee simple, for life or for years, and chargeable on the person only of the grantor.^ 1 2 Min. Insts, 38 ; 1 Th. Co. Lit. 449 ; Dulaney v. Dulaney, 105 Va. 483, .'54 S. E. 40. If the payment is charged on the lands of the grantor, Instead of on his person, it is in the grantee's election to treat It as a rent granted, in which case it ceases to be an annuity and becomes real property. 2 Min. Insts. 38; post, § 71. But at the election of the grantee the charge upon the grantor's lands may be waived, and then It Is simply an annuity, and per- sonalty only. 2 Min. Insts. 38 ; 2 Bl. Com. 40, note (34) ; 1 Th. Co. Lit. 449, 450. An annuity is also to be distinguished from an "income" or "interest" derived from the Investment of a fund for one's benefit. One entitled to such "Income" is taxable on the principal represented thereby, but the owner of an annuity is not. Dulaney v. Dulaney, supra. 2 2 Min. Insts. 37; 2 Bl. Com. 40; Jacob, Law Diet Corody. (58) Ch. 3] FRANCHISES. § 63 Neither of these rights is real property. They are strictly 'per- sonal, but possess the peculiarity, if given to the grantee "and his heirs," of passing to the heirs of the deceased owner, and not to his personal representative, like other personal property. Hence, though personalty, they are classed as incorporeal hereditaments.*. But they are not "tenements,"* and hence are not within the statA ute "de donis conditionalibus," converting fees conditional into fees tail,° nor within the statutes of mortmain.^ § 63. II. Franchises^ — In General. A franchise is a special right or privilege conferred on a person by grant (actual or presumed) from the government, which otherwise he could not enjoy.' Numerous franchises exist in modern times, many of which have no connection whatever with real property, while others are not themselves real property. Indeed, only a very few are to be class- ed as realty. Thus, the right to vote is a franchise, and perhaps the most prominent instance in modern times is the right of persons to form themselves into a corporation, and the privileges conferred by the charter upon such a body ; yet the first of these has no connec- tion whatever with land, and the last no necessary connection there- with. Certainly, neither of them is in itself real property.* A franchise is to be regarded as^real property only when it is ex- ercisable in or relates directly to particular land or other property real. Perhaps the most important instances of such franchises are the rights to operate (and charge toll for the operation of) a ferry, a toll road, canal, bridge, or grist mill. If such privileges are grant- ed by the state in perpetuity to an individual, they constitute here- ditaments, and upon the owner's death descend to his heir, and not to his personal representative ; and they are to be assigned or trans- ferred as real property.^ Thus, a ferry right is the right to carry passengers across streams or bodies of water from one point to another for a compensation. It is a franchise, and cannot be set up without a grant of the Legis- lature. The right does not belong inherently to the riparian pro- prietors, even though owning both banks or termini of the ferry, 3 2 Min. Insts. 37, 38 ; Nevil's Case, 7 Co. 34b ; Stafford v. Buckley, 2 Ves. Sr. 170 ; Turner v. Turner, Ambl. 776 ; Aubin v. Daly, 4 B. & Aid. 59 ; Radburn v. Jervis, 3 Beav. 450. See Taylor v. Martindale, 12 Sim. 158 ; Pai> sons V. Parsons, L. R. 8 Eq. 260. *Ante, §§ 4, 16. B 13 Edw. I, c. 1 ; 2 Bl. Com. 40, note (34) ; 2 IVTin. Insts. 38 ; post, § 165. 8 7 Edw. I, St. 2 ; 2 Min. Insts. 38 ; 1 Th. Co. Lit. 492 ; post, § 874 et seq. 7 2 Min. Insts. 35 ; 2 Washburn, Real Prop. 19 ; Bank of Augusta v. Earle, 13 Pet. 519, 595, 10 L. Ed. 274. 8 2 Min. Insts. 35. See 1 Tiffany, Real Prop. § 5 ; ante, § 20. » Tuckahoe Canal Co. v. Tuckahoe & J. R. R. Co., 11 Leigh (Va.) 42, 76, (59) § 64 IMPAIEING OR RESCINDING FRANCHISE. [Ch. 3 but it implies a right to land passengers on either bank.^" Nor is it necessarily coincident or synonymous with the ownership of the water on which it is exercised.^^ § 64. Same — Impaifliient or Rescission of Franchise. The grant of a franchise by the state is in the nature of a contract, the obligation of which the federal Constitution prohibits the state to impair by subsequent legislation.^^ But, notwithstanding this constitutional provision, the state au- thorities may alter or rescind the franchise in the following cases : 1. Where the right to alter ^ rescind has been expressly reserv- ed in the grant itself or by general statutes passed prior to the grant and applicable thereto. In such cases the franchise may be termi- nated in accordance with the terms of the reservation.^^ 2. In case of misuser_ar_njQnuser. The proper remedy in such cases is a writ of quo warranto in the name of the state (and of the state alone), calling upon the party or corporation exercising the franchise to show by what authority or warrant he or it does so; or by a quasi criminal proceeding by an information in the nature of a quo warranto.^* 3. In the exercise of the sovereign right of eminent do main. Even though there be no reservation of the right to cancel the grant, and no misuser nor nonuser of the franchise, the state may take the fraftchise for public purposes upon the payment of a just compensa- tion, just as it may take other private property; or it may delegate the power of eminent domain to municipal corporations, or to quasi public corporations, such as public service corporations.^" 36 Am. Dec. 374 ; Gunterman v. People, 138 111. 518, 28 N. E. 1067 ; Trustees of Mayville v. Boon, 2 J. J. Marsh. (Ky.) 224 ; Lewis v. Intendant & Town Council of Gainesville, 7 Ala. 85; Enfield Toll Bridge Co. v. Hartford & X. H. R. Co., 17 Conn. 40, 60, 42 Am. Dec. 716. 10 Peter v. Kendal, 6 B. & Cr. 703, 13 E. C. L. 703; Fay, Petitioner, 15 Pick. (Mass.) 243, 254 ; 2 Wasbburn, Real Prop. 20, 21. 11 Fay, Petitioner, 15 Pick. (Mass.) 243, 249, 253; Mills v. St. Clair County Com'rs, 3 Scam. (111.) 53. 12 2 Min. Insts. 35;, Const. U. S. art. 1, § 10, cl. 1; Dartmouth College v. Woodward, 4 Wheat. 629, 4 L. Ed. 629 ; Providence Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 ; Humphrey v. Pegues, 16 Wall. 249, 21 L. Ed. 326 ; Robin- son V. Gardiner, 18 Grat. (Va.) 509. 13 2 Min. Insts. 36; Pennsylvania College Cases, 13 Wall. 190, 20 L. Ed. 550 ; Miller v. New York, 15 Wall. 478, 21 L. Ed. 98 ; Holyoke Water Power Co. V. Lyman, 15 Wall. 500, 21 L. Ed. 133. 14 2 Min. Insts. 36 ; Bac. Abr. Informations (A) ; Newport News & O. P. Ry. & Electric Co. v. Hampton Roads Ry. & Electric Co., 102 Va. 795, 807, 47 S. E. 839 ; Com. v. Birchett, 2 Va. Cas. 51. But the mere negligence of the proprietor constitutes no ground of cancellation. Peter v. Kendal, 6 B. & Cr. 703, 13 E. C. L. 703 ; Nevvport News & O. P. Ry. & Electric Co. v. Hampton Roads Ry. & Electric Co., supra. IB 2 Min. Insts. 37; James River & K, Co. t. Thompson, 3 Grat. (Va.) (60) Oh. 3] EXCLUSIVENESS OF FRANCHISE. § 65 Thus a Legislature may authorize a bridge to be erected so as to occupy and destroy a ferry ; or a railroad company or a municipal corporation may be authorized to appropriate the bridge property or milling rights of another; or one railway company may be au- thorized to take the franchise of another railway company, though the prior grant be ever so exclusive, provided compensation is se- cured to the party thus deprived of the prior franchise. ^° 4. In the exercise of the police power.^'' § 65. Same — -Exclusiveness of Franchise. Subject to the limita- tions mentioned in the preceding section, the identical franchise is •always exclusive, since to encroach upon it would be to impair the obligation of the contract implied in the grant thereof. But in respect to a rival franchise, not intended to operate over the exact ground occupied by the first, but so near as to seriously affect its earning power, there is some difference of opinion as to whether the grant of the new franchise impairs the obligation of the old. The answer depends finally upon the construction placed upon the grant of the first franchise, and upon the extent of that grant. If, for example, the grant of a ferry or bridge franchise should ex- pressly limit the distance within which no other ferry or bridge shall be erected, the Legislature could not constitutionally author- ize a second ferry or bridge within the prescribed distance, save in the exercise of eminent domain, or as described in the preceding section.^' But if there is no such limitation expressed in the grant of the first franchise, a more difficult question arises. Is the grant to be construed as intended to be exclusive as to rival franchises, as in the case just mentioned? The better opinion is that a franchise is exclusive only where it is expressly declared in the grant to be so. Monopolies are odious, and are never to be implied in a public 270 ; West River Bridge Co. v. Dix, 6 How. 507, 12 L. Ed. 535 ; Richmond, F. & P. R. Co. V. Louisa R. Co., 13 How. 83, 14 L. Ed. 55 ; Central Bridge Corp. V. City of Lowell, 4 Gray (Mass.) 474; Boston Water Power Co. v. Boston & W. R. Co., 23 Pick. (Mass.) 360. 16 Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. 71, 83, 14 L. Ed. 55 : White River Turnpike Co. v. Vermont C«nt. R. Co., 21 Vt. 590; Boston & L. R. Corp. V. Salem & L. R. Co., 2 Gray (Mass.) 1; Central Bridge Corp. v City of Lowell, 4 Gray, 474; Boston Water Power Co. v. Boston & W. E. Co., 23 Pick. (Mass.) 360. 17 Newport News & O. P. Ry. & Electric Co. v. Hampton Roads Ry. & Electric Co., 102 Va. 795, 47 S. E. 839. 18 Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.) 1; New- burgh & C. Turnpike Road Co. v. Miller, 5 Johns. Ch. (X. T.) 101, 9 Am. Dec. 274; DaKmouth College v. Woodward, 4 Wheat. 518, 638, 4 L. Ed. 629. (61) § 66 PROFIT A PRENDRE COMMONS. [Ch. 3 grant, being unfriendly in the main to the prosperity and conven- ience of society.^" § 66. III. Profits a Prendre and Commons — 1. General Nature. A profit a prendre is a right to take a part of the soil or the products of the soil from the land of another person; fof example, to cut down and take away timber, to dig turf"'(for fuel, etc.) or coal or other minerals, to pasture one's cattle on another's land, to fish in another's waters, to take sand, gravel, or stone. ^^ The profit a pren- dre is so called because it always involves the use of another's land for the purpose of obtaining a profit therefrom, in contradistinction to an easement, which involves the right of using another's land, but taking no profit therefrom, as in case of a right of way.^^ The grant of a profit a prendre carries with it by necessary impli- cation the right to do anything upon the land in which it is to be enjoyed that is reasonably necessary for the proper exercise of the right to take the stipulated profit. Hence, if the profit is estovers or timber, the owner of the profit a prendre may enter upon the land for the purpose of cutting and removing it; ^^ and one enti- tled to take minerals from another's land may dig and mine therein for the purpose."^ Profits a prendre may be either exclusive of any right on the part of the owner of the land to take the same class of profit therefrom, or they may be enjoyed in common with the owner of the land, in which case they are often designated "commons." The prima facie presumption in case of all such grants is that the owner of the land does not intend to deprive himself of all enjoyment of the profits 19 2 Min. Insts. 36; Tuckahoe Canal Co. v. Tuckahoe & J. R. R. Co., 11 Leigh (Va.) 69, 36 Am. Dec. 374; Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. 71, 14 L. Ed. 55; Charles River Bridge Co. v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773 ; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. (Mass.) 344. See Newport News & O. P. Ry. & Elec- tric Co. V. Hampton Roads Ry. & Electric Co^ 102 Ya. 705, 47 S. E. 839. But see 3 Kent, Com. 459; Ogden v. GibbtWi 4 Johns. Ch. (N. Y.) 160; Newburgh & C. Turnpy^ Road Co. v. Miller, 5 Johns. Ch. Ill, 9 Am. Dec. 274. = 2 Min. Insts. 9, 13, 15, 16; 1 Tiffany, Real Prop. § 3.34; 2 Bl. Com. 32; 1 Th. Co. Lit. 229, 230 ; 3 Kent, Com. 406 et seq. ; Van Rensselaer v. Rad- clifC, 10 Wend. (N. Y.) 639, 25 Am. Dec. 582; Reg. v. Chamberlain, 9 Ad. & El. 444. 21 Post, § 89; Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652; Post V. Pearsall, 22 Wend. (N. Y.) 425 ; Huff v. JlcCauley, 53 Pa. 206, 91 Am. Dec. 203. 2 2Liford's Case, 11 Co. 52 a. 23 Cardigan v. Armitage, 2 B. & Cr. 197 ; Daud v. Kingscote, 6 M. & W. 174 ; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am. Rep. 322 : Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368. (63) Ch. 3] COMMONS ANNEXED OR IN GEOSS. § 67 granted, and that the grant therefore is not exclusive; in other words, the presumption is always in favor of the grant creating a common, though this may be rebutted by a plain expression to the contrary, or perhaps in a strong case by inference from the sur- rounding circumstances.^* A common or profit a prendre is closely analogous to an ease- ment in most respects, and therefore a consideration of the princi- ples applicable to one will suffice for the other also. This consid- eration will be postponed to the following chapter dealing specifical- .ly with easements, except as to matters wherein the common or profit a prendre is peculiar. We shall here discuss, as briefly as may be : (1) The nature of commons, as being appurtenant to land or in gross (that is, attached to the person only of the grantee) ; (2) the more prominent in- stances of commons ; and (3) the apportionment of commons. § 67. Same — 2. Commons Annexed to Land or in Gross. Prof- its a prendre may pertain to land (that is, they may be annexed to land in the hands of the owner of the profit) ; or they may be in gross (that is, annexed merely to the person of such owner). In the case of profits a prendre or commons appurtenant to land, the land to which the right of profit is annexed is the "dominant tenement," and the land in which the right is to be exercised or en- joyed is the "servient tenement," just as in the case of easements.-^ The prominent idea underlying this sort of profit a prendre is that its function and raison d'etre is to supply the land to which it is appurtenant with something in which it is lacking, and therefore the extent of the right must be limited by the needs of that land, not by the personal desires or purposes of the owner thereof. Consequently, if a right is claimed in the land of another to take therefrom all the wood, turf, etc., the claimant may desire, for purposes of sale or of use upon other land, as well as of use upon the land to which the right is claimed to be appurtenant, these facts of themselves show that such profit a prendre or common can- not be appurtenant to land, but must be in gross, if it exists at all."'* 2* Jlountjoy's Case, Co. Lit. 164 b; Stoekbrldge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Silsby v. Trotter, 29 N. J. Eq. 228; Funk v. Haldeman, 53 Pa. 229; Massot v. Moses, 3 S. 0. 168, 16 Am. Rep. 697; Harlow v. Lake Superior Iron Co., 36 Mich. 105. 2 5 Post, § 87; Phillips v. Rhodes, 7 Mete. (Mass.) 322; Hall v. Lawrence, 2 R. I. 218, .57 Am. Dec. 715; Grubb v. Grubb, 74 Pa. 25; Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652. 2 6 Bailey v. Stephens, 12 C. B. (N. S.) 91; Valentine v. Penny, Noy, 145; Hall V. Lawrence, 2 R. I. 218, 57 Am. Dec. 715. See Huntington v. Asher, 96 N. Y. 604, 48 Am. Rep. 652. (63) § 67 COMMONS ANNEXED OB IN GROSS. [Ch. 3 On the Other hand, if the profit a prendre or common is in gross, its extent depends altogether upon the agreement or prescriptive user of the parties, and is independent of the ownership of any land by the claimant of the right.^' Important consequences depend upon whether the right is ap- purtenant to land or in gross. If the former, it will always pass upon a conveyance of the land, without special mention, unless expressly excepted from the operation of the conveyance; and fur- thermore, since the extent of the right appurtenant is, as shown above, always measured by the needs of the dominant tenement, it follows that once a common appurtenant always a common appur- tenant; the profit cannot be separated from the dominant tenement by a grant thereof, reserving the land, or by a grant of the land re- serving the right.^* Neither of these principles has any application in the case of profits a prendre or commons in gross. § 68. Same — 3. Instances of Profits A Prendre or Commons — A. Common of Pasture. At common law the typical and most im- portant of these rights was that of pasture, generally in the form of a common.^' This existed under the feudal system, as an incident of the grant of lands upon feudal services, especially those of a mili- tary character; the tenant being authorized (as an implied incident of the grant) to pasture his cattle upon the waste lands of the lord, his own land being all supposed to be arable or utilized otherwise than for pasture.'"' It might also be created, independently of the feudal relation, but only (in such case) by express grant or pre- scription. ^"^ In the first case, the common was termed "appendant," and was always annexed to land ; in the second case, it depends up- on the nature of the grant, or of the user (in case it is created by prescription) whether it is appurtenant to land or is to be deem- ed a right in gross. ^^ The feudal law looked with favor upon the common of pasture appendant, because its existence supposed the strengthening of 2T2 Min. Insts. 13; Welcome v. Upton, 6 M. & W. 536; Shuttleworth v. LeFleming, 19 C. B. (N. S.) 687; Pierce v. Keator, 70 N. Y. 419, 26 Am. Rep. (512; Youghiogheiiy River Coal Co. v. Pierce, 153 Pa. 74, 2."i Atl. 1020; Tin- icum Fishing Co. v. Carter, 01 Pa. 21, 100 Am. Dec. .597 ; Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 20. 14 L. R. A. 300. 28 Drury v. Kent, Cro. Jac. 14; Plall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715. 29 2 Min. Insts. 9 et seq. 30 2 Min. Insts. 10; 2 Bl. Com. 33; Bennett v. Reeve, Willes, 227. See ante, § 6. 312 Min. Insts. 12; 1 Th. Co. Lit. 228, note (6); 2 Bl. Com. 33; Cowlam V. Slack, 15 East, 108. 3 2 2 Min. Insts. 12, 13. (G4) Ch. 3] COMMON OF PASTURE. § 08 the barony, perhaps of the kingdom, by the introduction of a new miHtary tenant; while it correspondingly discouraged the common of pasture appurtenant, created by mere grant or prescription, and the common in gross, because they not only did not necessarily in- volve the strengthening of the barony or kingdom, but might read- ily involve the reverse, inasmuch as the owner of the common thus acquired might be a foreigner draining the resources of the barony and kingdom.^* The idea animating common of pasture appendant under the feudal law was that the tenant, being granted in general only arable land, all of which would be in cultivation, must be given some means of pasturing the cattle needed by him to plough and manure such land. Hence only such cattle were pasturable on the lord's waste lands by virtue of this right as would be proper for these purposes, such as horses, sheep and oxen, but not hogs or goats, though cattle not belonging to the commoner might be included if used by him ; ^* and with respect to the number of beasts to be pastured the rule established was the so-called rule of "levancy and couchancy," meaning that so many beasts might be pastured on the servient tenement in the summer as the dominant tenement could supply food for during the winter.^" On the other hand, commons appurtenant by mere grant or prescription and commons in gross depend for their existence as well as for their extent upon the terms of the grant or upon the character and extent of the user upon which the prescriptive claim is based. Hence, it follows that such commons may be annexed to other than arable lands; ^^ that the commoner need not necessarily be confined to beasts that may be used in ploughing or manuring the land, but in the absence of express stipulation may pasture any sort of beast; ^^ and that the number of beasts to be pastured will be regulated by the grant or prescriptive user, though if not other- wise prescribed the rule of "levancy and couchancy" will be ap- plied.^' It is to be observed that the common of pasture appendant, being an incident of feudal tenures, can exist, even in England, only where 33 2 Min. Insts. 12. See Van Eensselaer v. Radcliff, 10 Wend. (N. T.) 639, 25 Am. Dee. 582. 34 2 Min. Insts. 10; 2 Bl. Com. 33; 1 Th. Co. Lit. 226, 227, note (R), note (S) ; Bennett v. Reeve, Wllles, 227. 35 2 Min. Insts. 10, 11, 12; Tyrringham's Case, 4 Co. 37b, 37 a, note (F) ; Bennett v. Reeve, Willes, 231, 232; Benson v. Chester, 8 T. R. 396. 36 2 Min. Insts. 12. 3 7 2 Min. Insts. 12; 1 Th. Co. Lit. 227; 2 Bl. Com. 33. 38 2 Min. Insts. 12; 1 Th. Co. Lit. 227, note (S). Minor & W.Revl Prop.— 5 (05) § 68 COMMON OF PASTURE. [Oh. 3 the origin of the particular common claimed can be traced back to the times of feudal manors, not later than the time of Edward I.^® In this country generally they cannot exist at all, because they are connected historically with grants to military tenants by lords of manors, of which there have been no instances with us.*° Commons appurtenant (by grant or prescription), however, and commons in gross, may exist here, since they have no necessary connection with the feudal system, and are based entirely upon the express agreement of the parties or upon prescriptive user.*^ In conclusion, the student should note that common "append- ant" is confined strictly to common of pasture. Commons of other sorts may be in gross or appurtenant to land by express grant or by prescription, but there can be no implied grant of them as incident to the creation of feudal tenements. § 69. Same — B. Other Instances of Commons. 1. Common of estovers or botes is the right to go upon the land of another and cut timber thereon, in common with the owner of the land, for the pur- pose of fuel (fire-bote), of repairing houses (house-bote), of mak- ing and repairing agricultural tools (plough-bote, or cart-bote), or of making and repairing hedges or fences (hedge-bote).^'' This right of common of estovers is to be carefully distinguished from the ex- clusive right of every tenant for life or years to get similar sup- plies in reasonable quantities, known as the tenant's right of es- tovers.^* Especially is this distinction to be noted in cases where the enjoyment of the profit a ^prendre is itself exclusive, and not in common with the owner of the servient estate. 2. Common of turbary is the right of getting turf for fuel from another's land in common with him ; and if the right be exclusive of the servient owner, it is still a profit a prendre, though not a common.^* But in the nature of things such a right will rarely be in gross ; it will usually be appurtenant to land, and the same is true of the common of estovers. Hence, there must be a fit rela- tion between the enjoyment of the right and the needs of the domi- nant estate. Common of turbary therefore can only be appurtenant to a dwelling (and not to mere land), and the use must be confined to the commoner's own house. ''^ ■io 2 Min. Insts. 11. *» 2 Min. lusts. 11. 4i 2 Min. Insts. 13. 42 2 Min. Insts. 16, 17; 2 Bl. Com. 35. See Van Rensselaer v. Eadcliff, 10 Wend. (N. Y.) (;3!), 25 Am. Dec. 582. 43 2 Min. Insts. 16 ; ante, § 39. a 2 Min. Insts. 15; 3 Bl. Com. 3-1. See Wilkinson v. Proud, 11 M. & W. 33 ; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760 ; Massot v Moses 3 .S. C. 168, 16 Am. Rep. 697. 4B 2 Min. Insts. 16 ; 2 Bl. Com. 34, note (26) ; Tyrringham's Case, 4 Co. 37 a, (66) Ch. 3] APPORTIONMENT OF COMMONS. § 70 3. Common of piscary (fishing) is the right to fish in the private waters of another person in common with him. If it is an exclusive right, it is not a common, though still a profit a prendre.*" 4. Mineral rights, such as taking coal, ore, stone, sand, gravel, seaweed, oil and gas, etc., from the lands of another may be acquir- ed in the form of a profit a prendre, which may or may not be a common ; " the presumption, it will be remembered, being that a grant of such rights is not intended to be exclusive.** § 70. Same — 4. Apportionment of Commons. Where the domi- nant or the servient estate comes into the hands of several persons, and in other cases also, it sometimes becomes necessary to deter- mine how the benefits or burdens of the common or profit a prendre are to be distributed. This is termed "apportionment." In the solution of these questions there are two qualifying prin- ciples that must always be borne in mind : (1) That no apportion- ment will be made which leads to overcharging the land — that is, increasing the burden upon it ; and (2) that an apportionment must not contravene the feudal policy, with which some of them are connected.*' Thus, a profit a prendre or common in gross, authorizing an un- defined taking of profits from another's land, cannot be assigned to several persons, so as to allow each to take such unlimited amount, since it would lead to overcharging the servient estate, nor could each separately take any limited amount, since there could be no measure of how much each should take.^" If the amount of profits *6 2 Min. Insts. 13, 14. Public waters constitute at common law a common fishing ground for all citizens ; but tliis is to be distinguished from a common of fishery, which exists in private waters and, in this country, in some streams which are navigable in fact, but whose beds are privately owned. Such streams are not public fishing grounds. Ante, § 56. Any one claiming an e S-Clusive right to fish in public waters must show a grant from the com- monwealth, such as is sometimes given by statute in the case of crabbing grounds, oyster beds, etc. 2 Min. Insts. 13. The distinction between public and private waters has been noticed, ante, §§ 56, 57. *7 2 Min. Insts. 15; Doe v. Wood, 2 B. & Aid. 738; Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955 ; Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304 ; Baker v. Hart, 123 N. Y. 470, 25 N. E. 948, 12 L. R. A. 60 ; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645 ; Duffield v. Rosenzweig, 144 Pa. 520, 23 Atl. 4 ; Clement v. Youngman, 40 Pa. 341; Smith v. Cooley, 65 Cal. 46, 2 Pac. 880. *8 Ante, § 66. It must also be remembered that the right to dig for and take away the minerals is to be distinguished from the ownership of the min- erals acquired by a conveyance of them from the fee simple owner. See ante, :§ 49. 49 5 Min. Insts. 11. 6 kountjoy's Case, Co. Lit. 164b; Chetham v. Williamson, 4 East, 469; (67) § 70 APPORTIONMENT OF COMMONS. [Ch. 3 to be taken is definitely determined, this would not give each of the assignees the right to the whole of that amount, for the same rea- son as before, but each would be entitled to his separate proportion, unless such apportionment would overcharge the land, in which case they must unite and exercise the right in common. ''^ It will be remembered that the extent of a profit or common ap- purtenant to land is to be measured by the needs of the land, and the exercise of the right cannot go beyond those needs. ^^ Hence, upon the assignment of the dominant tenement to sev- eral persons, or its descent upon, or devise to, several persons, the question whether the profit or common will be correspondingly ap- portioned or distributed among them depends upon whether this would lead to an overcharge of the servient tenement; and this in turn would depend upon the terms of the agreement creating the right of profit or common. If the grant is to be construed as pro- viding for future increases in the amount of profits to be taken as the needs of the dominant tenement increase, there would be no undue increase of burden caused by the division of the ownership of the dominant tenement, and an apportionment would take place. Thus, where the right is "to pasture such cattle as may be kept on the dominant tenement," each assignee or other owner of part of the dominant estate is entitled to a right of pasture for such cat- tle as may be kept upon his part of the land.''' If, on the other hand, the grant is to be construed as fixing definitely for all time, as of the date of the grant, the needs of the dominant tenement which are to be supplied from the servient, a di- vision of the dominant estate amongst several might lead to an overcharge of the servient tenement, and if so apportionment will not be made. Thus, where one owns a dominant tenement, with a single dwelling house thereon, and is granted the right of estovers for fuel or of turbary in another's land, and the dominant tenement is afterwards divided amongst several, each of whom claim the right of fuel for the dwelling house on his part of the land, no such apportionment can be made, as it would clearly overcharge the servient land. In such case, it is said that the right is extinguish- ed ; " but it is not easy to see why the assignee of that part of the Funk V. Haldeman, 53 Pa. 229, 244; Harlow v. Lake Superior Iron Co., 3& Jllch. 105, 121. 01 See cases cited supra. 62 Ante, § 67, and eases cited in note 20. 5 3 Co. Lit. 122a; Tyrringham's Case, 4 Co. 37a; Wild's Case, 8 Co. 78b; Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639, 25 Am. Dec. 582 ; Hall v. Lawrence, 2 R. I. 218, 57 Am. Dec. 715. 4 Van Rensselaer v. Radcliff, 10 Wend. (N. Y.) 639, 25 Am. Dec. 582; Bell V. Ohio & P. R. Co., 25 Pa. 161, 64 Am. Dec. 687. (GS) Ch. 3] DIFFERENT MEANINGS OF "KENT." § 71 dominant land containing the original dwelling house should not have a better right to the profit than the others, and should not therefore be entitled to enjoy it.^^ Where the servient tenement is divided amongst several alienees or coparceners, there is no difficulty in making a proper apportion- ment, since no increase of burden upon the servient estate would result.^" But where the owner of the dominant tenement is the alienee of part of the servient estate, the right of common (if ap- purtenant by grant or prescription) is extinguished on the ground that to enforce it in its entirety would overcharge the remainder of the servient estate, and to apportion it would be contrary to the feudal policy, which, as we have seen, looked with disfavor upon such rights, as tending to weaken and dissipate the resources of the barony and, ultimately, of the kingdom. ^^ Hence the courts, if they could not jitstly enforce such rights in their entirety, would refuse to enforce them at all.^^ The principle just enunciated applies, however, only where the owner of the dominant tenement acquires part of the servient estate by purchase ; if he acquires it by descent, the law will not do the vain thing of casting the descent of the profit upon him by its own act (intended for his benefit) and then defeating it and accordingly the common or profit is apportioned. °' Nor does the principle apply in the case of common of pasture appendant, for it was looked upon with favor by the courts, as indicating a strengthening of the feudal barony, and therefore ap- portionment would take place, even where part of the servient es- tate was purchased by the owner of the dominant tenement."" § 71. IV. Rents— Different Meanings of Term "Rent." There are three distinct things to which the term "rent" may be, and is, applied. It is important that the student should learn to discrimi- nate between these at the very outset af the discussion. A landlord may lease land to a tenant, say for five years or in fee simple, at an annual rent of $100. By this transaction the land- lord loses (for the period of five years, or forever, as the case may be) his right to the land, acquiring in its place a right to expect of the tenant $100 a year. The right is, or may be, an incorporeal hereditament, since it may belong to him in fee simple, and thus de- BB 2 Min. Insts. 16, 17. oe 2 Min. Insts. 11, 12, 16. 07 Ante, § 68 ; 2 Min. Insts. 12. 08 2 Min. Insts. 12, 16, 17. 8 2 Min. Insts. 13 ; 1 Th. Co. Lit. 227; Bac. Abr. Commons (B). See Wild's Case, 8 Co. 78b. 00 Ante, § 68 ; 2 Min. Insts. 11 ; 1 Th. Co. Lit. 217 ; Tyrringham's Case, 4 Co. 37a, note (F) ; Wild's Case, 8 Co. 78b ; Bac. Abr. Common (E). (69) § 71 DIFFERENT MEANINGS OF "bENT." [Gh. 3 scend to his heirs upon his death, and is known as a rent. This is a rent reserved or rent groper."^ On the other hand, as the tenant pays the ^KJlTTadTyear to the landlord, he is said to pay him the "rent," and the landlord pockets the "rent" ; the term "rent" being- used here, not as signifying the right above described, but as in- dicating the profit accruing 'from the right. In this sense, rent is not real property at all, but is merely personalty, like any other sum of money, or chose in action. In other vs^ords, while the right to expect the annual or periodical payment of a sum of money or other profit is a rent, and real property before the payment ac- crues, yet after it has accrued, though still called (erroneously) "rent," it is in reality only a chose in action or (if actually paid) a chattel — in either case only personal property."^ This confusion will be avoided if we call the second case "arrears of rent," instead of "rent." The first instance, above mentioned, of rent reserved (or rent proper), which may be real property, and wRWr-arises where land is transferred from the lessor to the lessee for which the rent is a return or exchange, is to be carefully distinguished from the case where the owner of land, as a means of securing the payment'oi a debt, agrees to pay another a certain sum annually or periodical^ ly for a term of years, for life or in fee simple, charging the pay- ment thereof upon his land. Such a transaction creates__a _ rent graft ed, _pr an improper rent, which, in its definition, resembles a rent reserved oFrent proper in all particulars save that it is m}t iri_ return for the transfe r of land.*' But while much alike in defini- tion, th^'are very "dissimilar in many of their attributes and inci- dents. § 72. Definition of a Rent. A rent reserved or proper rent is defined as follows : A right to a certain profit, issuing annually or periodically out of lands and tenements corporeal, in retiirji for land that passes.'* ' On the other hand, a rent granted or improper rent is defined to be a right to a certain profit, issuing annually or periodically out of lands and tenements corporeal, where no land passes.'''' A transaction involving the periodical payment of money may be a perfectly good contract, but unless it conforms to one of the above definitions it cannot be good as a rent, and will not have all the incidents and qualities of the latter; amongst others, the right of distress will be lacking."" ei Post, §§ 72, 73. 6 2 Post 5 73. es Post. §§ 72. 77, 78. 64 2 Min. Insts. 39; ] Th. Co. Lit. 442; Gilbert. Rents, 9. «s 2 Min. Tnsts. 41 ; Gilbert. Rents. 26. 27. ««2 Min. Insts. 39; 1 Th. Co. Lit. 441, note (B.) ; v. Cooper, 3 (70) Ch. 3] KENT — EIGHT TO A CBBTAIN PROFIT. § 74 § 73. Qualities of a Rent — 1. A Right. It will be remembered that a rent is a right, of which the arrears periodically accruing are merely the fruits, which constitute personal property. This is one of the instances where confusion of thought has sometimes re- sulted from confusion of terminology. A landlord to whom a ten- ant pays money due on account of his lease does not collect rent, nor does the tenant pay him rent, though each in popular language is said to do so. In such case, properly speaking, the landlord col- lects and the tenant pays arrears of rent ; that is, the periodically accruing fruits or profits of the right belonging to the landlord by virtue of the lease. °^ In consequence of the omission to observe this obvious distinc- tion between the incorporeal right (which may be realty) and the corporeal fruits or profits -accruing periodically therefrom, we have it laid down that no action of debt lies by the common law for the arrears of a freehold rent, reserved on a lease for life or in fee sim- ple, during the continuance of the freehold estate out of which it is- sues, "because the law would not suffer a real injury to be remedied by an action merely personal." °' Hence, special legislation was re- quired both in Englaiid and in this country to make arrears of a freehold rent recoverable in an action of debt.*" So in Pollock v. Farmers' Loan & Trust Co.^" (the famous in- come tax case) the income tax law of Congress was attacked on the ground that it was a direct tax, and should have been levied as such under the federal Constitution. The court, having previously held that all taxes upon land were direct taxes, here decided that a tax upon income derived from the collection of arrears of rent from land was likewise a tax upon land, and therefore a direct tax. § 74. Same — 2. A Certain Profit. In the next place the right must be to a profit; that is, something not before in esse, whether in labor, provisions, part of the annual product, money, or other thing. Hence a reservation (or more accurately an exception) of Wils. 375; Dean of Windsor v. Glover, 2 Saund. 302. For example, the following incidents attach in greater or less degree to a rent, which would not attach to a mere contract. A rent is, or may be, real estate, and, if an estate of inheritance exists therein, is descendible to the heirs, while a mere contract would ordinarily go to the personal representative. A rent usually passes with the reversion, which would not ordinarily be the case with a mere contract. The arrears of rent may be recovered by the sum- mary process of distress, while a mere contract would be enforceable by the regular and more tedious process of the courts. 87 2 Min. Insts. 39 ; ante, § 71. «8 2 Min. Insts! 39; 1 Rol. Abr. 595; 3 Th. Co. Lit. 270, note (U). «o 2 Min. Insts. 39; St. 8 Anne, c. 14. 10 158 U. S. 601, 635, 15 Sup. Ct. 912, 39 L. Ed. 1108. (71) § 74 EENT — EIGHT TO A CERTAIN PROFIT. [Ch. 3 the trees or herbage already growing on the land transferred, while good as a contract, would not constitute a rent, because not a prof- it ; and still less would a reservation or exception of part of the land itself.-'i It is also necessary, in order that the transaction be a rent, that the profit be certain — that is, of ascertained amount — or at least capable of being made certain, upon the niaxim "Id certum est quod certum reddi potest." Hence a reservation of labor or money, etc., without affording means of determining the amount, is not a rent ; but if it were of so much money as W. shall name, or of the shearing of all the sheep on the grantor's estate, it would be good as a rent.^^ § 75. Same— 3. Issuing Periodically. Rent must issue periodi- cally, though it is not essential that it should issue from year to year. It is sufficient if it accrues from period to period, whether the interval be less or more than a year ; for example, from month to month, from half year to half year, every quarter, every two years, etc.''^ But it must be payable from period to period, during the whole continuance of the grantee's estate; otherwise, though it may be good as a contract, it cannot be a rent. Hence, if the purchase mon- ey of land is payable in instalments, but not at intervals continuing through the whole duration of the grantee's estate, it is not a rent.'* § 76. Same — 4. Out of Lands and Tenements Corporeal. A rent can only issue out of lands and tenements corporeal,^ ^ or from the personal property necessary for their proper enjoyment, as, for example, where a house or lodging is let already furnished.''® 71 2 Min. Insts. 39, 40 ; Moulton v. Robinson, 27 N. H. 550 ; Buckley v. Kenyon, 10 East, 139 ; Rex v. Pomfret, 5 Maule & S. 139 ; Reg. v. Westbrook, 10 Q. B. 178. 72 2 Min. Insts. 39, 40; 1 Th. Co. Lit. 440, 441; Gilbert, Rents, 10; 2 Ld. Raym. 1161; Selby v. Greaves, Ij. R. 3 C. P. 594; Walsh v. Lonsdale, 21 Ch. Div. 9 ; Dutcher v. Culver, 24 Minn. 584 ; McFarlane v. Williams, 107 111. 33. 73 2 Min. Insts. 40 ; 2 Th. Co. Lit. 414. 74 2 Min. Insts. 40. 75 2 Min. Insts. 40; Vetter's Appeal, 99 Pa. 52; Baldwin v. Walker, 21 Conn. 168; Lathrop v. Clewis, 63 Ga. 282, 287; Sutliffi v. Atwood, 15 Ohio St. 186. 76 Williams v. Howard, 3 Munf. (Va.) 277; Wickham v. Richmond Standard Steel, Spike & Iron Co., 107 Va. 44, 57 S. B. 647, 11 L. K. A. (N. S.) 836. In such cases the rent is said to issue out of both land and personalty in point of render, but out of the lands only in point of remedy, the recourse being to them alone to distrein. Hence, if the chattels are lost or destroyed during the term, without the tenant's default, the rent is diminished or apportioned accordingly. Dean of Windsor v. Glover, 2 Saund. 303, 304; Newton v. Wilson, 3 Hen. & M. (Va.) 470. (72) Ch. 3] RENT COMPENSATION OB EETUEN. § 77 Thus, if one, seised in fee simple of a way or a profit a prendre or common, should lease it for years, reserving a periodical com- pensation therefor, while it may be upheld as a contract, it is not a rent, because it issues out of an incorporeal, not a corporeal, heredit- ament.^' § 77. Same — 5. In Compensation or Return (Reditus). The four qualities of rents mentioned in the preceding sections have flowed equally from the definition of rent reserved or proper rent and from that of a rent granted or improper rent.'* The quality now to be discussed, as well as the next, belongs to the rent reserved alone, and not to the rent granted. Rent reserved (or proper rent) supposes a transfer of land for which it is the compensation or return. Hence it is a rule of the common law that it must be reserved payable to the grantor of the land, or "his heirs," and not to a third person, for else it would not be a return for the land that has passed." And not only is a reservation to a third person not good as a rent at common law, but it was altogether void, even as a contract, upon much the same grounds as was the assignment of a chose in action. For, if per- mitted, the reservation might be made to persons of power and in- fluence, who might extort from the tenant more than was contracted for, thus tending to maintenance.^" The rigor of this common-law doctrine has, it is true, been softened in modern times by the con- struction of the courts ; but it is even now good only as a contract, not as a rent.'^ Under the common-law rule, therefore, if a father seised in T7 2 Jlin. Insts. 40 ; Gilbert, Rents, 20 et seq. ; 1 Th. Co. Lit. 441, 442. The reasons usually assigned for this doctrine are (1) that the person en- titled cannot distrein for the arrears since the tenement is incorporeal ; (2) that he could not at common law have a writ of assize, because the recognitors of assize could not have a view of the subject out of which the compensation would be issuing ; and (3) that Incorporeal hereditaments were originally created and allowed for the public good, and therefore were not deemed fit subjects of private profit. Only the first of these is satisfactory — at least, at the present day. Hence, although reversions and remainders are incorporeal, yet upon a grant of either, reserving a return or compensation, this is a proper rent ; for although there can be no distress until by the termination of the particular estate the interest in reversion or remainder comes Into possession, yet then the grantor of the land may distrein for all arrears not barred by limitation. 2 Min. Insts. 40 ; Gilbert, Rents, 21, 23 ; 1 Th. Co. Lit. 442. 78 For these definitions, see ante, § 72. 79 2 Min. Insts. 40. 80 2 Min. Insts. 41; Gilbert, Rents, 54 et seq.; 1 Th. Co. Lit. 442, note (C),; Bac. Abr. Rents (G) ; 3 Kent, Com. 463. 812 Washburn, Real Prop, 8. (73) § 78 RENT RETUEN FOB LAND THAT PASSES. [Ch. 3 fee leased land, reserving the rent payable to his "son," the whole transaction was void (though now good as a contract, but not as a rent) ; for in such case the word "son" is not equivalent to "heirs," but the son takes as a purchaser, and is regarded as any other third person or stranger.*^ § 78. Same — 6. For Land That Passes. It is the crowning characteristic of a rent reserved or proper rent that it is in compen- sation or return for land that passes. Hence the transaction is not a rent (though it may be upheld as a contract), if it be a compensa- tion not for land, but for a inere chattel, or for a right, that passes. Thus, where a disseisee releases his right in the land to his dis- seisor, reserving a periodical return, this does not constitute a rent.^** Rents granted or improper, on the other hand, do not in gen- eral suppose the transfer of any land between the parties, but mere- ■ly a charge upon the lands of the payer of the rent of a sum of mon- ey payable periodically to the payee. But they have enough of the qualities of a rent to cause them to be called by that name, and to attach to them in certain cases the right of distress.** § 79. Rents Service, Rents Charge and Rents Seek. "Three manner of rents there be," says Littleton, "that is to say, rent serv- ice, rent charge and rent seek." *° This classification of rents is based upon the right of distress incident thereto. Such right al- ways attaches, as of common right, to a rent service, but in the other cases usually depends at common law for its existence upon the stipulations of the parties ; it being a rent charge if there are such stipulations, and a rent seek if there be none.*' § 80. Same — 1. Rents Service. A rent service is always a rent reserved upon a grant of lands, where a reversion is left in the gran- tor.*' It will be seen, therefore, that a rent service arises always 82 Bac. Abr. Rents (G) ; Hobart, 130. 83 2 Mill. Insts. 41; Gilbert, Rents, 26, 27; 1 Th. Co. Lit. 442. 84 2 Min. Insts. 41; Gilbert, Rents, 19, 20; 1 Th. Co. Lit. 705, 707; Bac. Abr. Rents (A), 2. 85 1 Th. Co. Lit. 442; 2 Min. Insts. 42. 86 2 Min. Insts. 44 et seq. ; Gilbert, Rents, 14 et seq. ; 1 Th. Co. Lit. 444 et seq. It will suffice to make the rent a rent charge if there appears an in- tent to charge the lands with distress for a sum certain. The words may be words of covenant, or license, as that "the grantee may distrein." 1 Th. Co. Lit. 459; Gilbert, Rents, 39 et seq. 87 2 Min. Insts. 42; Gilbert, Rents, 9, 15; 1 Th. Co. Lit. 443, 444; Bac. Abr. Rents (A). It is designated "rent service," as the old writers tell us, because it hath some corporeal service incident unto it, which at the least is fealty, and for the most part consisted originally of military services. 1 Th. Co. Lit. 442 ; Bac. Abr. Rents (A), 1 ; 2 Min. Insts. 42. (74) Ch. 3] RENTS CHARGE AND BENTS SECK. § 81 by reservation, and is always in return for the land out of which it issues; *^ and moreover it supposes a tenure? of the grantor and a reversion in him.*' The most important characteristic, at common law, of rents serv- ice is that the arrears are recoverable always by distress, as of com- mon right, without any stipulation to that effect; the purpose orig- inally being to procure the prompt rendition of the services upon which the safety of the barony, and even of the kingdom, might de- pend.'"' The rule still exists, though the ancient feudal reasons for it have long since ceased to operate. The modern reason for al- lowing the arrears of rent service to be recovered ex proprio vigore by distress is for the benefit of the poorer class of tenants."^ Thus, the right of distress, which was first introduced for the sake of the public safety, is continued for the benefit of poor tenants, the land- lord's interest not being the inducing motive at either period."^ § 81. Same— 2. Rents Charge and Rents Seek. While rent service must always be a rent reserved because of the necessity for a reversion, rent charge and rent seek may be either a rent reserved or a rent granted. In case of rent reserved, if the grantor of the land transfers his entire interest therein, leaving no reversion in himself, the rent reserved thereon cannot be a rent service, but must be either a rent charge or rent seek. And so, if the rent be not a rent reserved at all, but a rent granted, it cannot be a rent service, but must be either a rent charge or a rent seck."^ Whether a rent (not a rent service) is a rent charge or a rent seek depends at common law for the most part upon the stipulations as to distress therein. No right of distress exists as a general thing in these cases at common law unless stipulated for. Wherever there is such a stipulation, the rent is a rent charge; if there is no such clause, it is a rent seek (reditus siccus ; that is, a dry or barren ' rent)."* But there are three exceptions, even at common law, to this gen- es 2 Min. Insts. 42 ; 1 Th. Co. Lit. 442. 88 2 Min. Insts. 43; 1 Th. Co. Lit. 444; 2 Bl. Com. 42. »o In modern times taxes are recoverable by distress for similar reasons. 2 Min. Insts. 43. 01 If tlie recovery of the arrears of rent is made easy and prompt, land- lords are induced to admit the poorer class of tenants more readily, with- out demanding from them the rent in advance or collateral security for its payment; the tenant's household goods being generally security enough for at least a quarter's or a half year's rent. 2 Min. Insts. 43. »2 2 Min. Ingts. 43. 93 2 Min. Insts. 45 et seq. »4 2 Min. Insts. 44 et seq. ; Gilbert, Rents, 14 et seq. ; 1 Th. Co. Lit. 444 et seq. (75) § 81 KENTS CHARGE AND BENTS SECK. [Ch. 3 eral principle, all of which arise in cases of rent granted, and are based probably upoil the fact that there is in these cases a valuable compensation in lands for the grant of the rent. In these excep- tional cases, though not cases of rent service, distress is allowed as a matter of right, independently of stipulation to that effect."^ These three exceptional cases are : (1) Rent granted for owelty (Fr. egalite, equality) of partition, where in dividing land between two or more co-tenants it becomes necessary to equalize the parti- tion by a rent granted by him who receives more of the land to him who receives less ; (2) rent granted in lieu of dower, where, upon assigning dower to a widow, it is found not practicable or conven- ient to assign the widow her precise share of the land (in such case, she may consent to receive a rent granted in lieu of her dower or part of it, issuing out of the lands whereof she is dowable) ; and (3) rent granted in lieu of land, upon an exchange of lands, where the lands exchanged are of unequal value, the inequality being sought to be obviated by this means. In each of these cases rights in land are surrendered, in consideration whereof the rent is granted. °' § 82. Estates Which May Be Had in Rents. Since a rent re- served is a return for an interest in land transferred by the payee of the rent to the payer,"^ the interest of the payee in the rent must always be commensurate with the estate of the payer thereof in the land transferred to the latter. Thus, if the grantor of the land transfers to the grantee a term for years therein, reserving rent, he has an estate for the same number of years in the rent that the grantee has in the land. If he conveys an estate in the land for the grantee's life, he has an estate in the compensatory rent for the grantee's life. If he con- veys an estate for his own life in the land, he has an estate for his own life in the rent. If he conveys a fee simple in the land, he himself has a fee simple in the rent. And so in every case of rent reserved the measure of the estate of the grantor of the land in the rent is determined by the measure of the grantee's estate in the land conveyed. But in the case of rent granted no land passes at all, and the estate in the rent granted depends entirely upon the intent and stipulations of the parties. One may grant a rent in fee simple, for life, or for years. In either case, however, it is only where the owner of the rent 9 5 2 Min. Insts. 45, 46. 98 2 Min. Insts. 45, 46 ; Gilbert, Rents, 19, 20 ; 1 Th. Co. Lit. 705 et seq. ; Bac. Abr. Rents (A), 2; Jameson v. Rixey, 94 Va. 342, 26 S. E. 861, 64 im. St. Rep. 726. "Ante, §§ 77, 75. (76) Ch. 3] APPORTIONMENT OF RENTS. § 84 has an estate of inheritance therein that a rent can be termed with accuracy an incorporeal hereditament. In the present discussion of rents attention will be confined in the main to such points as present themselves with regard to fee-simple rents, sometimes designated fee farm rents. Rents reserved upon an ordinary lease for life or for years will be discussed more fully hereafter, in con- nection with the chapter on Landlord and Tenant."' § 83. Same — Maximum Estate in Rent Service. It will be re- membered that a rent service always supposes a tenure of and a reversion in the grantor."" Prior to the statute quia emptores,^ a fee-simple estate might have been had in a rent service, because by the original common law, even upon the grant of a fee-simple interest in lands, there re- mained a tenure of and a reversion in the grantor.^ But the enact- ment of that statute altered this feudal principle, and since that date there has existed no tenure of nor reversion in the grantor of a fee simple.^ It follows, therefore, that a rent reserved upon a grant of a fee-simple interest in lands can never be a rent service.* The largest estate to which a reversion is incident, which can now be had in lands is in England a fee qualified, and in the United States generally a life estate. Hence, since the estate in the rent reserved corresponds to the interest in the lands transferred, the largest estate which may now be had in a rent service is in Eng- land a fee tail, and here a life estate. ° § 84. Apportionment of Rents. Most of the questions relating to the apportionment of rents reserved will be discussed in a subse- quent chapter upon the relation of Landlord and Tenant." Only such will be considered here as should be presented at this point in contrast to the principles applicable to rents granted, which form the main topic of discussion at this time. We have seen heretofore a noteworthy distinction drawn be- 8 An estate in fee simple in a rent reserved Is often termed a "ground rent." See Willis' Ex'r v. Com., 97 Va. 667, 34 S. B. 460. Post, § 359 et seq. s 9 Ante, § 80. lAnte, § 5. 2Ante, § 5; 2 Min. Insts. 54. sAnte, § 5 ; 2 Min. Insts. 54 ; 2 Washburn, Real Prop. 6, 7. * 2 Min. Insts. 54. 5 2 Min. Insts. 54 ; ante, § 88. A rent service, therefore, can never be with us a strict hereditament. But a rent reserved upon a grant of lands in fee simple is a hereditament. It is simply not a rent service, because there is no reversion, but must always be either a rent charge or rent seek. Rents reserved upon the grant of a fee simple Interest in the land are often designated ground rents. See Willis' Ex'r v. Com., 97 Va. 667, 34 S. E. 460. « Post, § 365 et seq. (77) § 84 APPORTIONMENT OF RENTS. [Ch. 3 tween commons of pasture appendant and commons appurtenant by express grant or prescription, in regard to the amount of favor shown them, respectively, in the matter of their apportionment when part of the servient tenement is purchased by the owner of the dominant tenement.'' The same distinction exists, and for the same feudal reasons, between rents reserved and rents granted. The existence of a rent reserved, like that of a common appendant, originally indicated the introduction of a new tenant into the feud, perhaps into the king- dom, and the consequent strengthening of the military force ; where- as rent granted, like common appurtenant, implied nothing of the sort, but rather a weakening of the feudal resources of the barony or the kingdom. Hence, in the case of rent reserved, as in the case of common appendant, the law looked with favor upon the transaction, and would enforce it in its entirety or modify it as justice dictated; while rent granted, like common appurtenant, would be extinguish- ed altogether, if it should become unjust to enforce it in its en- tirety.* Thus, if the recipient of a rent reserved purchase a part of the land out of which it issues, th.e rent, being a return for the land transferred, is apportioned; that is, it is extinguished pro rata only.^ But if it be a rent granted, and the recipient of the rent purchases any part of' the premises out of which it issues, the rent is altogether extinct, not only as a rent, but as an annuity also, though previously it might have been treated, at the grantee's election, in either light. ^" " So, according to the weight of opinion, at common law, if the holder of a rent granted should release part of the rent to the gran- tor thereof, the residue of the rent is wholly discharged, and there T Ante, §§ 68, 70. s 2 Miii. Insts. 54. 9 2 lllu. Insts. 55, 58 ; 1 Tli. Co. Lit. 466 ; Gilbert, Rents, 179. But If the rent be an entire thing and incapable of apportionment as where the rent consists of one horse per year or the defense of a fortress, no appor- tionment can take place. In such case, whether the rent is to be wholly paid or wholly extinguished depends upon whether the purpose of the rent is pro bono publico. If for the public good, it must be carried out in its entirety; if not, It need not be paid at all. 2 Min. Insts. 56, 60; 1 Th. Co. Lit. 471, 472; Gilbert, Rents, IG.j, 166. 10 2 Min. Insts. 55, 56; 1 Th. Co. Lit. 463 et seq. ; Bac. Abr. Rents (M) ; Gilbert, Rents, 152 et seq. But this applies only where the holder of the rent purchases part of the land by his own act If he acquires It by descent (an act of the law) the rent will be apportioned pro tauto. 2 JMin. Insts. 57; 1 Th. Co. Lit. 463, 464, 466, 474; Gilbert, Rents, 151 et seq.; Bac. Abr. Rents (M). See ante, § 70. (78) 'Ch. 3] ^ APPORTIONMENT OF RENTS. § 84 is no apportionment ; ^^ while the opposite is true if the rent thus released be a rent reserved/^ On the other hand, since a rent granted is not a return for the land out of which it issues, the mere fact that the grantor of the rent is subsequently evicted from part or all of the land by title paramount,^ ^ or that the lands, or the buildings thereon, are de- stroyed in whole or in part,^* affords no ground to abate the rent, since the land was not the consideration for the rent. The whole rent must be paid, without abatement. But in the case of rent reserved the eviction of the lessee by a stranger claiming under superior title is a ground for the abate- ment of the rent pro tanto ; ^^ while an eviction of the tenant by the lessor from any part of the land, however small, causes a sus- pension of the whole rent till such part be restored to him.^" If the leased premises, or part thereof, or the buildings thereon, are destroyed, as by fire, earthquake, submergence by water, and the like, the effect thereof upon the tenant's obligation for the rent is important. The general principle of the common law' is that, when a tenant leases property, he buys it (so to speak) for the term of the lease. It is his during that period, and ceases in the main to belong to the lessor. Hence any loss that occurs falls upon the tenant, who continues bound for the stipulated rent (which in this view is merely the purchase price of the premises), regard- less of how valueless the premises may subsequently become to him. This_ view is adopted in full by the common law, so far as relates to the destruction in whole or in part of buildings and struc- tures upon the land leased. There is no abatement of the rent, but the whole is to be paid, partly for the reason just mentioned, and partly, also, because it is necessary to stimulate the tenant to the proper care of the premises, and to guard against frauds which the lessor would often not be in a condition to establish. If the lessee means to decline such responsibility, he must at common law so stipulate in his lease. ^^ 112 Washburn, Real Prop. 17, 18; Tud. Lead. Gas. 197. But see 2 Min. Insts. 56. 12 2 Min. Insts. 58; 1 Th. Co. Lit 467, note (E, 1); Ingersoll v. Sergeant, 1 Whart. (Pa.) 337; Tud. Lead. Cas. 196. 13 2 Min. Insts. 59; 1 Tii. Co. Lit. 467. 14 1 Til. Co. Lit. 468. 15 2 Min. Insts. 58; 1 Th. Co. Lit. 468. See post, § 306. 16 2 Min. Insts. 56; 1 Th. Co. Lit. 470, note (H, 1); Gilbert, Rents, 178; Briggs V. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326 ; Linton v. Hart, 25 Pa 193, 64 Ana. Dec. 691. See post, § 366. 17 2 Min. Insts. 59, 60; 1 Th. Co. Lit. 469, note (G, 1); Ross v. Overton, 3 Call (Va.) 309, 2 Am. Dec. 552. (79) § 84 APPORTIONMENT OF RENTS. [Ch. 3 On account of the hardship of the case, however, the common law excepted from this principle the case where the leased land it- self, or part thereof, was destroyed, as by earthquake or the sub- mergence by water, holding that the rent must in such case be ex- tinguished pro tanto.^^ It should be noted that in this country the common law upon this subject has been largely modified by statute. 18 2 Min. Insts. 58; 1 Th. Co. Lit. 469, note (G, 1) ; Gilbert, Rents, 187. (80) CHAPTER IV. INCORPOREAL, HEREDITAMENTS, CONTINUED— V. EASEMENTS. § 85. I. Nature of Easements. 86. Easements in Gross. 87. Easements Appurtenant to Land. 88. Quasi Easements. 89. Easements Distinguished from Profits a Prendre. 90. Easements Distinguislied from Licenses. 91. II. Modes of Acquiring Easements — Enumeration. 92. 1. Easements Acquired by Natural Right. 93. 2. Easements Acquired by Express Grant. 94. 3. Easements Acquired by Express Reservation or Exception, 95. 4. Easements Acquired by Implied Grant. 96. A. Easements by Necessity. 97. B. Quasi Easements Converted into Easements. 98. 5. Easements Acquired by Implied Reservation. 99. A. Reserved Easements by Necessity. 100. B. Quasi Easements Converted into Reserved Easements by Transfer of Servient Tenement. 101. 6. Easements Acquired by Prescription. 102. 7. Easements Acquired by Estoppel. 103. III. Modes of Extinguishing Easements. 1. Cessation of Purposes of Easement. 104. 2. Easements Extinguished by Express Release. 105. 3. Easements Extinguished by Abandonment (Implied Release). 106. 4. Easements Extinguished by Change of Condition of Domi- nant Tract. 107. 5. Easements Extinguished by Union of Dominant and Servient Tracts. 108. 6. Easements Extinguished by Adverse Acts of Servient Owner. 109.. 7. Easements Extinguished by Transfer of Servient Tract to a Purchaser without Notice. 110. IV. Particular Instances of Easements, Their Use and Enjoyment. 1. Ways, 111. The Several Classes of Ways. 112. Repair of the Way. 113. 2. Support of Land. 114. 3. Support of Buildings. 115. 4. Party Walls and Division Fencea. 116. A. Party Walls. 117. B. Division Fences. 118. 5. Light, Air and Prospect. 119. 6. Drainage of Surface Water. 120. Same — Right of Drip from Eaves of a House. 121. 7. Pews in Churches and Cemetery Rights. § 85. I. Nature of Easements. Easements correspond to the "servitudes" of the civil law, and consist of rights (variously acquir- ed) on the part of one person either (1) to use the land of another MiNOK & W. Reai, Pbop.— 6 fSl') § 86 NATURE OF EASEMENTS. [Ch. 4 (the servient tract) in a particular manner and for a particular pur- pose, or (2) to compel the owner of the servient tract to refrain from certain uses of his own land ; the rights in either case not being in- consistent with a general property in the owner of the servient tract. Instances are rights of way, of drainage, of light and air, etc.^ § 86. Same — Easements in Gross. It would seem upon prin- ciple that one, in some instances at least, might be capable of pur- chasing a right of using another's land for purposes personal to the purchaser and independent of his ownership of particular land, as in the case of the purchase of a burial lot in a cemetery or a pew; and, indeed, the possibility of such an interest in another's land is quite generally admitted in this country. Such an easement is call- ed an easement in gross. ^ Even in this country, however, there is much dispute as to whether an easement in gross is to be regarded as such an interest in land as that it can be transferred to another or be inherited by the heirs of the owner upon his death. But if there can be such an interest in land as an easement in gross, by the weight of reason at least (if not of authority) it should be so trans- ferable and inheritable, provided, of course, it does not lead to over- burdening the servient land.' Bvtt, in any event, the instances of such easements are so few that a presumption may well exist that easements are intended to be created appurtenant to land, imtil the contrary is established.* § 87. Same — Easements Appurtenant to Land. By far the greater number of easements are found appurtenant to land, a domi- 1 2 Min. Insts. 24 ; 2 Washburn, Real Prop. 25 ; 3 Kent, Com. 434 at seq. See Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676 ; Hazelton v. Putnam, 3 Pin. (Wis.) 107, 54 Am. Dec. 158, 161 ; Wolfe v. Frost, 4 Sandf. Ch. (N. T.) 72, 89. = French v. Williams, 82 Va. 4H2, 4 S. E. 501 ; Amidon v. Harris, 113 Mass. 59 ; Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161 ; Mayor, etc., of City of New York v. L|^, 125 N. Y. 380, 26 N. E. 471 ; Willoughby t. Law- rence, 116 111. 11, 4 N. E. 356, 56 Am. Rep. 758; Wagner t. Hanna, 38 Cal. Ill, 99 Am. Dec. 354. See post, § 121. But in England the existence of ease- ments in gross has been denied, it being there held that every easement must be appurtenant to some dominant tract. Ackroyd v. Smith, 10 C' B. 164; Rangeley v. Midland Ry. Co., 3 Ch. App. 300. 3 Goodrich v. Burbank, 12 Allen (Mass.) 459, 90 Am. Dec. 161 ; Engel v. Ayer, 85 Me. 448, 27 Atl. 352 ; PouU v. Mockley, 33 Wis. 482. But see Tini- cum Fishing Co. v. Carter, 61 Pa. 21, 100 Am. Dec, 597; Fisher v. Fair, 34 S. C. 203, 13 S. E. 470, 14 L. R. A. 333 ; Boatmaa/C Lasley, 23 Ohio St. 614 ; Garrison v. Rudd, 19 111. 559 ; Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 20, 14 L. R. A. 300. 4 French v. Williams, 82 Va. 462, 4 S. E. 591 ; Dennis v. Wilson, 107 Mass. 591 ; Cadwalader v. Bailey, 17 R. I. 495, 23 Atl. 20, 14 L. R. A. 300 ; Wagner V. Hanna, 38 Cal. Ill, 09 Am. Dec. 354; Louisville & N. R. Co. v. Koeble, 104 111. 455. (S2) Ch. 4] BASEMENTS APPURTENANT, § 87 nant tenement, without which, indeed, many of them could not be created at all. Their very existence supposes a dominant tract, as in the case of drip, drainage, etc. It is this circumstance that has sometimes led to the denial of the existence of such an interest as an easement in gross. It is a general principle controlling easements appurtenant to land that the measure of the enjoyment of the easement is the needs of the land to which it is appurtenant, just as in the corresponding case of a profit a prendre appurtenant to land, and therefore it can be used for no purpose which does not conduce to the benefit of the dominant tract.^ Hence, if one acquires a right of way over an- other's land, appurtenant to a particular dominant tenement only, he has the right to use such way only for the purpose of going to or from that tract. He cannot use it to reach other tracts ; such use not being beneficial to the dominant tract. ° Hence, in a grant of a right of way, it is expedient to extend the "dominant tract" so as to take in all places to which the grantee is likely to desire to go, which may be accomplished best, perhaps, by stipulating for the right of way to the place designated "and to all places between and be- yond." ■^ While, according to the better opinion, as has been shown in the preceding section, easements may be created in gross, they must be so created ab initio. An easement appurtenant to land cannot be converted into an easement in gross by any attempted separation of the ownership of the easement and of the dominant tenement, as by a conveyance of the dominant estate, the owner reserving or ex- cepting the easement, or vice versa. Such an attempt avails noth- ing.* The easement, notwithstanding, continues to adhere to the dominant estate to which it is appurtenant, and passes with it to the grantee thereof, though not specially mentioned. Once appurten- ant, it is always appurtenant.^ » Ackroyd v. Smith, 10 C. B. 164 ; Hill v. Tupper, 2 Hurl. & C. 121 ; Lintlii- cum V. Ray, 9 Wall. 241, 19 L. Ed. 657 ; Whaley v. Stevens, 27 S. C. 549, 4 ,S. E. 145 ; Moore v. Grose, 43 Ind. 30. See ante, §§ 67, 70. 6 2 Min. Insts. 19 ; Lawton v. Ward, 1 Ld. Raym. 75 ; Ackroyd v. Smith, 10 C. B. 164 ; and other cases cited supra. 7 2 Min. Insts. 19. See Perry v. Penn. R. Co., 55 N. J. Law, 178, 26 Atl. 829 ; French v. Williams, 82 A'a. 462, 4 S. B. 591. a Ackroyd v. Smith, 10 C. B. 164 ; Cadwalader v. Bailey, 17 R. I. 495, 2.'! Atl. 20, 14 L. R. A. 300 ; Moore v. Crose, 43 Ind. 80. » Voorhees v. Burchard, 55 N. X. 98 ; Moore v. Crose, 43 Ind. 30 ; Barnes V. Lloyd, 112 Mass. 224 ; Rhea t. Forsyth, 37 Pa. 503, 78 Am. Dec. 441 ; Lide y. Hadley, 36 Ala. 627, 76 Am. Dec. 338 ; Shields v. Titus, 46 Ohio St. 528, 22 N. E. 717 ; Tinker v. Forbes, 136 111. 221, 26 N. E. 503 ; Taylor v. Dyches, 69 Ga. 455 ; Spaulding v. Abbot, 55 N. H. 423. See Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749. (S3) § 88 QUASI EASEMENTS. [Ch. 4 § 88. S^me-^Quasi Easements. It is a general principle of the law that one cannot have an easement in his own land ; the full and complete ownership swallowing up and merging the mere right to use it in one particular way." But the owner of land may have been accustomed during his ownership to use one part of the land in order to confer a benefit upon another part, as by establishing a drain, an aqueduct, a roadway, etc. While this does not of itself constittite an easement, so long as the two tracts remain in the same hands, it may, under certain conditions presently to be examined," create an easement when the two tracts come into the possession of separate parties. Meanwhile, and until such a separation of owner- ship takes place, it is convenient to designate the relation between the two tracts as a potential or quasi easement; that is, a connection that is liable to become a true easement upon the severance of the possession of the respective tracts. § 89. Same — Easements Distinguished from Profits a Prendre. An easement differs from a profit a prendre in that a profit a prendre always supposes the right to take some corporeal profit from the lands of another,^^ while an easement merely confers a right to use another's land, or to compel the latter to abstain from using it in a particular way, without taking any corporeal profit therefrom." Thus the easements of passage, drainage, drip, support, etc., do not suppose the taking of corporeal substance or profit from the servient estate, but the right to take fish from another's waters, or herbage, clay, gravel, mineral, etc., from his land, these being cor- poreal substances, is a profit a prendre.^* § 90. Same — Easements Distinguished from Licenses. A chap- ter will be presently devoted to licenses, their nature and incidents. It is sufficient for present purposes to point out that a license differs very materially from an easement, in that it constitutes no interest in land whatever, and is not real estate, but is a mere authority, usually revocable at pleasure and not transferable, to do a certain act or series of acts, for example, to hunt, upon the lands of another, without conferring any interest in the land itself.^ ° On the other 10 2 Min. Insts. 20; 2 Washburn, Real Prop. 26; Atwater v. Bouflsh, 11 Gray (Mass.) 150 ; Warren y. Blake, 54 Me. 276, 89 Am. Dec. 748 ; Capron v. Greeuway, 74 Md. 289, 22 Atl. 269 ; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732 ; McTavish v. Carroll, 7 Md. 352, 61 Am. Dec. 353 ; Ritger v. Parker, 8 Cush. (Mass.) 145, 54 Am. Dec. 744. 11 Post, §§ 97, 100. 12 Ante, § 66. 13 2 Washburn, Real Prop. 26. 112 Washburn, Real Prop. 26; Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Boston Water Power Co. v. Boston & W. R. Corp., 16 Pick. (Mass.) 512, 522. 15 Post, § 122 et seq. ; 2 Min. Insts. 28. (84) Ch. 4] • EASEMENTS BY EXPRESS GRANT. § 93 hand, an easement is the very opposite of this, being an interest in land, which is usually irrevocable and freely transferable in connec- tion with the dominant tenement, as other interests in land are, sub- ject to the same limitations.^" § 91. II. Modes of Acquiring Easements — Enumeration. Ease- ments may arise: (1) By natural right; (2) by express grant; (3) by express reservation or exception; (4) by implied grant; (5) by implied reservation; (6) by prescription; (7) by estoppel. § 92. 1. Easements Acquired by Natural Right. There are cer- tain easements in land which pertain to adjacent land as a matter of right, without any grant, prescription or reservation being necessary to their creation. Such is the right to support of land by adjacent or subjacent land,^' and the right to the natural drainage of the surface water collected upon one's land over and into the adjacent lands of another,^ ^ etc. § 93. 2. Easements Acquired by Express Grant. Easements, like other incorporeal hereditaments, at common law were said to "lie in grant"; that is, could in general be created and transferred only by deed, a writing under seal — a form of conveyance known to the common law as a "grant." ^' This principle applies, even though the easement be for a term of years, however short, or an estate at will; ^° and it still applies in this country, it would seem, notwithstanding the statutes of conveyances, which generally pro- vide that "no estate of inheritance, nor of freehold, or for a term of more than [so many] years, in lands, shall be conveyed unless by deed or will"; for wh.ile, under this statute, an oral conveyance of land for a term of five years or less will be good, an oral grant of an easement for the same or greater period is generally regarded as creating only a license. ^^ 16 2 Min. Insts. 28. n Post, § 113 ; 2 MIn. Insts. 24. is Post, § 119. 19 Wood T. Leadbitter, 13 M. & W. 842; Somerset v. Fogwell, 5 B. & Cr. 875; Dyer v. Sanford. 9 Mete, (ilass.) 395, 43 Am. Dec. 399; Morse v. Cope- land, 2 Gray (Mass.) 302 ; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484 ; ^iff-- V. McCauley, 53 Pa. 206, 91 Am. Dec. 203 ; Thompson v. Gregory, 4 Joiifl^ (N. - Y.) 81, 4 Am. Dee. 255 ; Oagle v. Parker, 97 N. C. 271, 2 S. E. 76 ; Veglite v. Raritan Water Power Co., 19 N. J. Bq. 142. It the interest In the easement is a permanent one in fee simple, as it will ordinarily be presumed to be in the absence of evidence to the contrary, the rule of the common law is as strict as it is In the conveyance of land in requiring the use of the word "heirs." Bean v. Frencli, 140 Mass. 229, 3 N. B. 206 ; post, § 140. 20 See eases cited supra. 21 Huff V. UcGafi)/^, 53 Pa. 206, 91 Am. Dec. 203; Harris v. Miller, Meigs (Tenn.) 158, 33 aK Dec. 138; Bonelli v. Blakemore, 66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550 ; Banghart v. Flummerfelt, 43 N. J. Law, 28 ; Dorris V. Sullivan, 90 Cal. 279, 27 Pac. 216 ; Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. (85) § 93 EASEMENTS BY EXPRESS GRANT. [Ch. 4 So long as the instrument creating the easement is a writing un- der seal, the form of it is immaterial, provided the intent appears clearly. Thus it may be in the form of a covenant,^ ^ or in the form of a mere license or authority. ^^ It is worthy of note, also, that in equity at least a contract for the creation of an easement, like a contract for the conveyance of land, will be specifically enforced and of itself creates an equitable easement; and this is true though the contract be not under seal, and even though it be merely oral, if it has been partly performed by the proposed grantee of the easement in such manner that the breach of the contract cannot be compensated for in mere dam- ages.^* Where an easement is thus expressly created, its use and enjoy- ment must be confined to the terms and purposes of the grant or reservation creating it. If granted in general terms, without par- ticularly specifying the mode of enjoyment, it may be used in any manner and for any purpose reasonably within the terms of its crea- tion or reasonably necessary. Thus, where an alley way between two houses is expressly reserved, without specifying its mode of en- joyment, though it be not used as a passway, the use of it as a source of light and air is a common and ordinary use of such alleys, and reasonably within the terms of the grant, and the continued fail- ure to use it as a passway was held not to constitute an abandon- ment of the easement.^ ^ 195 ; Wilmington Water Power Co. v. ]5,Tans, 166 111. 548, 46 N. E. 1083. But see Parkhurst v. Van Cortland, 14.J^fins. (N. T.) 15, 7 Am. Dec. 427; Van Horn V. Clark, 56 N. J. Bq. 476, 40*^tl. 203 ; Pierce v. Cleland, 133 Pa. 189, 19 Atl. 352, 7 L. K. A. 752; Wilson v. Cbalfant, 15 Ohio, 248, 45 Am. Dec. 574 — in which cases, however, the easement or license had been acted on by the licensee, who had been thus put to expense and could not be placed in statu quo. This was held to make the license irrevocable, practically amount- ing to an easement. See post, § 126. 2 2Rowbotham v. Wilson, 8 H. L. Cas. 348, 362; Ladd v. Boston, 151 Mass. 585, 24 N. B. 858, 21 Am. St. Rep. 481 ; Wetmore v. Bruc^^afis N. Y. 319, 23 N. B. 303 ; Warren v. Syme, 7 W. Va. 475 ; McCarthy v. Mcrosi, 72 Ala. 332, 47 Am. Rep. 418; Willoughby v. Lawrence, 116 111. 11, 4 N. E. 356, 56 Am. Rep. 758 ; Norfleet v. Cromwell, 64 N. C. 1 ; 2 Washburn, Real Prop. 28. 2 3 See 1 Th. Co. Lit. 4.59; Gilbert, Rents, 39 et seq. 24 See Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Miller v. Brown, 33 Ohio St. 547 ; Hammond v. SchifC, 100 N. C. 161, 6 S. E. 753 ; Wickersham V. Orr, 9 Iowa, 253, 74 Am. Dec. 348; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dee. 632 ; Rawson v. Bell, 46 Ga. 19.. The general doctrines touch- ing the equitable title to real property created by a contract in writing under the statute of frauds, and by an oral contract partly performed are considered elsewhere. Ante, § 18. 2 5 Watts V. C. I. Johnson & Bowman Real Estate Corp., 105 Va. 519, 525, 54 S. E. 317. (SO) Ch. 4] EASEMENTS BY KESEEVATION OR EXCEPTION. § 94 § 94. 3. Easements Acqxfired by Express Reservation or Excep- tion. In England the terms "reservation" and "exception" are sepa- rate and distinct in meaning, the term "reservation" being applied to those provisions in a conveyance which call for the return to the grantor of some profit to issue in future out of the land conveyed, as a part of the future crops grown on the land, or a money rent, etc., the most usual instance being that of the reservation of a rent in a lease of land ; while the term "exception" applies to those provisions which except from the operation of the conveyance certain parts (already existent) of the thing conveyed, which without such excep- tion would pass under the general terms of the conveyance, as where one conveys lands, excepting the trees growing thereon, or except- ing certain buildings, or the growing crops, etc.^" An easement, being in strictness neither a profit issuing from the land nor itself a part of the servient tenement, cannot therefore arise in England in either of these ways, and it' becomes necessary there in such cases to fall back upon the fiction of a regrant of the ease- ment by the grantee of the land to the grantor — that is, if both par- ties have signed the conveyance, the theory is that the conveyance operates first as a grant to the grantee of all interest in the land, and secondly as an immediate grant back to the grantor by such grantee of the easement described. ^^ But in the United States very generally the logical and historical significance of these terms has been lost sight of, and they are used almost interchangeably, or rather the courts, without regard to the particular terms used in the conveyance, construe the language as an exception or reservation, according to the character of right in- tended to be created thereby — as a "reservation" if the right should properly arise by reservation, and as an "exception" if that be the proper means of creating the right intended."* 2 6 Post, § 144; Co. lAtt. 21a, 47a; Slieppard's Touchstone, 77, 80; Doe v. Lock, 2 Ad. & B. 743 ; Durham & S. R. Co. v. Walker, 2 Q. B. 940 ; Washing- ton Mills Emery Mfg. Co. v. Commercial Fire Ins. Co. (C. C.) 13 Fed. 646; King V. Wells, 94 N. C. 344 ; Brown v. Allen, 43 Me. 590 ; Cornell v. Todd, 2 Denio (X. ^ 130 ; Shoenberger v. Lyon, 7 Watts & S. (Pa.) 184 ; Heflin v. Bingham}/o6 Ala. 566, 28 Am. Rep. 776; Putnam v. Tuttle, 10 Gray (Mass.) 48. See Butcher v. Creel, 9 Grat. (Va.) 201. 27 1 Tiffany, Real Prop. § 316; Durham & S. Ry. Co. v. Walker, 2 Q. B. 940 ; Wickham v. Hawker, 7 M. & W. 63 ; Corporation of London v. Riggs, 13 Ch. Div. 798. 2 8 Engel V. Ayer, 85 Me. 453, 27 Atl. 352; White v. New York & N. E. R. Co., 156 Mass. 181, 30 N. E. 612; Hagerty v. Lee, 54 N. J. Law, 580, 25 Atl. 319, 20 L. R. A. 631 ; Whitaker v. Brown, 46 Pa. 197 ; Goal Creek Min. Co. V. Heck, 15 Lea (Tenn.) 497 ; Watklns v. Tucker, 84 Tex. 428, 19 S. W. 570 ; Sloan V. Lawrence Furnace Co., 29 Ohio St. 568. (87) § 94 EASEMENTS BX IMPLIBD GRANT. [Ch. 4 Indeed, the courts of this country have gone still further, and have held that easerheilts, though strictly speaking not susceptible of creation by either of these means if their origitial significance be preserved, may arise by reservation, thus modifying this term so that it ttiay create rights of use in the land cohveyed as well as right of profit therein; ^^ and even though called an "exception" it will be construed as a "reservation," so as hot to defeat the easement.'" Hence, in this country, there is no need to resort to the theory of a regrant of the easement in such cases, and therefore no necessity that the conveyance should be signed by both parties, in order that an easement be created; the signature of the grantor alone being sufficient.'^ § 95. 4. Easements Acquired by Implied Grant. The founda- tion principle upon which rests the creation of easerrients by implied grant is to be found in the maxim, "Cuicunque aliquis quid concedit, concedere videtur et id sine quo res ipsa non potuit," meaning that a grant of land or other property carries with it, by implication, as incident thereto, everything reasonably necessary to the enjoyment of the thing granted, which it is in the power of the grantor to bestow.'^ Easements arising thus by implied grant divide themselves into two classes : (1) Easements arising by necessity ; and (2) ease- ments arising from quasi easements upon a grant of the quasi domi- nant tenement. § 96. Same — A. Easements by Necessity. Easements are some- times implied upon a grant of land, because without them the prop- erty granted could not be used by the grantee, or could not be used for the purpose for which it was granted. Such easements are said 2 9 Simpson v. Boston & M. R. Co., 176 Mass. 350, 57 N. E. 674; Claflin v. Boston & A. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638; Chappell V. New York, N. H. & li. R. Co., 62 Conn. 195. 24 Atl. 997, 17 L. R. A. 420 ; Grafton v. Moir, 180^IJ/y. 465, 29 N. E. 974, 27 Am. St. Rep. 533 ; Kister v. Reeser, 98 Pa. 1, 42 ijn. Rep. 608 ; Engel v. Ayer, 85 Me. 453, 27 Atl. 352. 30 See Claflin v. Boston & A. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638 ; Inhabitants of Winthrop v. Fairbanks, 41 Me. 307 ; and cases cited supra. 31 Claflin V. Boston & A. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638; Biowen v. Conner, 6/Cusli. (Mass.) 132 ; Kent v. Walte, 10 Pick. (Mass.) 138 ; Rose V. Bunn, atSC Y. 275 ; Borst v., Emple, 5 N^y: 33 ; Inhabitants of Wiu- throp T. FairbaiSks, 41 Me. 307 ; Tuttle v. Waker, 46 Me. 280 ; Hagerty v. Lee, 54 N. J. Law, 580, 25 Atl. 319, 20 L. R. A. 631 ; Haggerty v. Lee, 50 N. J. Eq. 464, 26 Atl. 537 ; Kister v. Reeser, 98 Pa. 1, 42 Am. Rep. 608 ; Richard- son V. Clements, 89 Pa. 503, 33 Am. Rep. 784 ; Kuecken v. Voltz, 110 111. 264. 3 2 2 Min. Insts. 19, 27; Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St Rep. 749. (88) Ch. 4] BASEMENTS BY NECESSITY. § 96 to arise by necessity — that is, by a necessary inference — since other- wise the whole grant would be nugatory.^' Thus, if one sells land to be used for a factory, retaining adjoin- ing land, he impliedly grants such an easement in respect to the pol- lution of water or of air as is reasonably necessary for that particu- lar mode of using the land granted.^* But the most usual and important of these easements is the right of way by necessity, which arises where one conveys to another land, which is either entirely surrounded by the lands of the grantor, or else is bordered in part by the land of a stranger and in part by the lands of the grantor. In either case the grantee of the land, even in the absence of express stipulation, has a way by necessity over the grantor's land, since otherwise the land granted to him would be unapproachable and useless. The grantor cannot take advantage of the absence of stipulation thus to derogate from his own grant. ^^ It is important to observe in case of the implied grant of a way by necessity thdt the necessity referred to is the subjective necessity of the inference that the parties so intended at the time of the grant, not the objective necessity to make the land profitable or useful. Hence, if the land granted is at the time surrounded on all sides by the lands of strangers, over which the grantor has no power or con- trol, no right of way can arise in favor of the grantee by necessity, because neither the implied nor express grant of the grantor could give the grantee any rights over the lands of third persons. ^° There- fore it is a general rule governing Ways by necessity that in order to establish such a way it is essential that the alleged dominant and servient tenements should be proved at some time in the past to have belonged to the same person. ^^ For the same reason the kind of 3 3 2 Min. Insts. 19; Bond v. Willis, 84 Va. 796, 6 S. E. 136. 84 Hall V. Lund, 1 Hurl. & C. 676 ; Aldin v. Clark, [1894] 2 Ch. 437. So, upon a grant of land for a building, tlie grantor impliedly grants also such support as may be reasonably necessary. SiddoDs v. Short, 2 C. P. Div. 572 ; Eigby V. Bennett, 21 Ch. Div. 559. 35 2 Min. Insts. 19; Liford's Case, 11 Co. 52a; Pomfret v. Ricroft, 1 Saund. 322b, note (5), (6) ; Pinnington v. Galland, 9 Bxch. 1 ; Bond v. Willis, 84 Va. 796, 6 S. E. 136 ; Linkenhoker v. Graybill, 80 Va. 838 ; Holmes v. Seely, 19 Wend. (N. Y.) 507; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 303; Leonard v. Leonard, 2 Allen (Mass.) 543 ; Kimball v. Cochecho E. R., 27 N. H. 448, 59 Am. Dec. 387. 36 See Bullard v. Harrison, 4 M. & S. 387 ; Tracy v. Atherton, 35 Vt. 52, 82 Am. Dec. 621 ; Ellis v. Blue Mountain Forest Ass'n, 69 N. H. 385; 41 Atl. 856, 42 L. R. A. 570. 37 Proctor V. Hodgson, 10 Exch. 824; Bullard v. Harrison, 4 M. & S. 387; Ellis V. Blue Mountain Forest Ass'n, 69 N. H. 385, 41 Atl. 856, 42 L. R. A. 570 ; Whltehouse v. Cummings, 83 Me. 98, 21 Atl. 743, 23 Am. St. Rep. 756 ; Tracy V. Atherton, 35 Vt. 52, 82 Am. Dec. 621 ; Brice v. Randall, 7 Gill & J. (Md.) 349 ; Stewart v. Hartman, 46 Ind. 331. (89) § 96 EASEMENTS BY NECESSITY. [Ch. 4 way, and the sort and quantity of traffic over it, as measured by the reasonable necessities and enjoyment of the land, are to be deter- mined by the condition and mode of enjoyment and use of the land at the time of the grant of the dominant estate, not the condition and mode of use thereof at a later period.^* In the case of ways by necessity, it is the intention of the parties that is sought to be inferred from the uselessness of the land to the grantee (unless such a right of way is implied). Whether degrees of uselessness may be admitted as a ground of determining this in- tention is a question upon which the courts are divided. Upon prin- ciple it would seem that, if there already be another mode of access to the land, though much less convenient, or more expensive to develop, the reason for the inference of a grant of a way by neces- sity ceases.^" In the enjoyment of a way, by necessity or by other implication, the route to be followed is in the first instance to be determined by the owner of the servient estate, for the claimant of the easement is bound to exercise his right so as to occasion the least possible in- jury or inconvenience to the owner of the servient tract. All he can claim is that the way be reasonably convenient. But if the servient owner neglects or refuses to locate the way, the owner of the ease- ment may do so, subject to the restraint just mentioned, and he can- not then be held liable as a trespasser for passing over the servient land." § 97. Same — B. Quasi Easements Converted into Easements. We have seen that, while no one can have a real easement in his own land, he may be accustomed to utilize part of his land for the 3 8 Corporation of London v. Riggs, 13 Ch. Div. 798; Feoffees of Grammar School in Ipswich v. Proprietors of Jeffrey's Necli Pasture, 174 Mass. 572 55 N. B. 462. 39 Dodd V. Burchell, 1 Hurl. & C. 11.3 ; Nichols v. Luce, 24 Pick. (Mass.) 102, 35 Am., Dec. 303 ; Hall v. McLeod, 2 Jletc. (Ky.) 98, 74 Am. Dec. 400 ; White- house T. Cummings, 83 Me. 98, 21 Atl. 743, 23 Am. St. Rep. 756 ; Valley Falls Co. V. Dolan, 9 R. I. 489; Field v. Marli, 125 Mo. 502, 28 S. W. 1004. But under some decisions a way by necessity will be implied, if the other access involves disproportionate labor or expense. See Feoffees of Grammar School in Ipswich v. Proprietors of Jeffrey's Neck Pasture, 174 Mass. 572, 55 N. E. 462 ; Pettlngill v. Porter, 8 Allen (Mass.) 1, 85 Am. Dec. 671 ; Smith v. Griffin, 14 Colo. 429, 23 Pac. 905. But if, though another access exists or may be created, it is insufficient or not available for the general uses to which the land is to be put within the contemplation of the parties, the reasons for the infer- ence of a grant of a way by necessity apply with full force. Myers v. Dunn, 49 Conn. 71; Feoffees of Grammar School In Ipswich v. Proprietors of Jef- frey's Neck Pasture, supra ; Hildreth v. Googins, 91 Me. 227, 39 Atl. 550. io 2 Washburn, Real Prop. 51 ; Russell v. Jackson, 2 Pick. (Mass.) 574, 578; Holmes v. Seely, 19 Wend. (N. Y.) 507 ; Smiles v. Hastings, 24 Barb. (N. Y.) 44. (90) Ch. 4] EASEMENTS FROM QUASI EASEMENTS. § 97 benefit of another part, thereby creating a relation between the two parts, which may be termed a quasi easement, which, however, con- stitutes no real interest separate and apart from his general owner- ship of both tracts, and his consequent right to use either as he sees fit." But upon the same principle adverted to as the foundation of ease- ments by implied grant generally, namely, that where one grants land he is presumed to pass all in his power to confer that is reason- ably necessary to the enjoyment of the land granted,*^ if the owner of the two tracts should convey the quasi dominant tenement, re- taining the quasi servient tract, the grant of the former carries with it by implication the right to the continued use of the servient tract, as it had been previously used. But this is subject to the qualifica- tion, at least where the servient estate subsequently or simulta- neously comes into possession of some one other than the original owner, that the quasi easement is (1) apparent, (2) continuous, and (3) reasonably necessary to the enjoyment of the dominant tract. *^ Thus, in Sanderlin v. Baxter,** two estates, "Woodlawn" and "Fairfield," separated only by a public road, were both owned by W., who drained Woodlawn by ditches through Fairfield to the riv- er. In 1811, W. granted Woodlawn to A. (under whom the plain- tiff claimed), and in 1820 he devised Fairfield to D. (under whom the defendant claimed). The deed and will were both silent about the drainage; but at the time Woodlawn was conveyed these draining ditches were open and visible, operating regularly and continuously, and were then, as they continued to be, necessary for'the convenient and beneficial use and enjoyment of Woodlawn, for which purpose they were continuously used down to 1878, when they were ob- structed by Sanderlin, the then owner of Fairfield. Thereupon Bax- ter, the owner of Woodlawn, enjoined Sanderlin from obstructing the ditches, and the injunction was made perpetual. On the other hand, in Scott v. Beutel,*^ a like relief was denied because the easement claimed was not obvious and apparent, nor known by the purchaser to exist at the time of the purchase. In Paine v. Chandler *" pipes for the supply of water were laid through one tract to another, both tracts at the time belonging to "Ante, § 88. 42 Ante, § 95. 43 2 Min. Insts. 26; Nicholas v. Chamberlain, 3 Cro. (Jac.) 121; Lampman V. Mills, 21 N. Y. 505 ; Elliott v. Rhett, 5 Rich. (S. 0.) 405, 57 Am. Dec. 753, 759, note ; Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749 ; River- side Cotton Mills V. Lanier, 102 Va. 148, 45 S. B. 875 ; Thayer v. Payne, 2 Cush. (Mass.) 327. *4 76 Va. 304, 44 Am. Rep. 165. 46 23 Grat. (Va.) 6, 7. ^e 134 N. Y. 385, 35 N. E. 18, 19 L. R. A. 99. (91) § 97 EASEMENTS FROM QUASI EASEMENTS. [Ch. 4 the same owner, but the ownership later became separated; aiid it was held that the easement, being apparent, continuous and neces- sary, passed with the transfer of the dominant tract. Upon the same principle, it is the doctrine in England that if one owns two adjacent vacant lots, and upon one places a building whose windows overlook the other vacant lot, and he subsequently conveys the lot with the building on it, retaining the vacant one, the grantee is entitled to an easement of light over the vacant lot, which cannot subsequently be obstructed by the erection of a build- ing on such vacant lot.*'' But this doctrine has been repudiated quite generally in this country, on the same grounds as the doctrine of ancient lights acquired by prescription,*' namely, that it would tend to check the upbuilding of towns, and to burden the land un- duly." The conditions under which the separation of the ownership oc- curs is immaterial. There may be successive transfers of the re- spective tracts, or the transfers may be simultaneous, as where the two are transferred to different persons by one devise, or one decree of partition or of foreclosure.^" § 98. 5. Easements Acquired by Implied Reservation. These easements, while classified in the same way as easements arising by implied grant, rest upon a different basis. The latter, as we have seen, is based upon the principle that one who grants land is pre- sumed to intend to pass out of himself to the grantee of the land everything which is necessary for the reasonable use and enjoyment of the land granted, since otherwise he would derogate from his own grant." " Swansborough v. Coventry, 9 Bing. 303. 4 8 For the doctrine of "ancient lights," see post, § 118. 49 Keats T. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629 ; Keating v. Springer, 146 111. 481, 34 N. E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175 ; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379 ; Ray v. Sweeney, 14 Bush (Ky.) 1, 29 Am. Rep. 388. But a few courts follow the English rule. Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 794; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300. Others make the decision depend upon whether the light is actually necessary to the use of the building. Renny- son's Appeal, 94 Pa. 147, 39 Am. Rep. 777 ; Powell v. Sims, 5 W. Va. 1, 13 Am. Rep. 629; Turner v. Thompson, 58 Ga. 268, 24 Am. Rep. 297; Robinson v. Clapp, 65 Conn. 365, 32 Atl. 939, 29 L. R. A. 582. 60 2 Min. Insts. 27; Bur well v. Hobson, 12 Grat. (Va.) 322, 63 Am. Dec. 247; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484 ; Ellis t. Bassett, 128 Ind. 118, 27 N. E. 344, 25 Am. St. Rep. 421 ; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 794 ; Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep. 671 ; Clark v. Debaugh, 67 Md. 430, 10 Atl. 241 ; Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653 ; 'Russell V. Watts, 25 Ch. Dlv. 559, 10 App. Cas. 590. 61 Ante, §§ 95, 96 ; 2 Min. Insts. 27. (92) Ch. 4] EASEMENTS BY IMPLIED EBSBRVATION. § 100 It is obvious that an implied reservation of an easement cannot be based upon these grounds ; indeed, they rest upon the very oppo- site presumption (arising under certain peculiar conditions), name- ly, that the parties have intended that the grantor should retain something, instead of passing it with the land, and also that they should have designed that he to some extent should derogate from his own grant. The implied reservations of easements must be based upon grounds of public policy, which does not approve of the ownership of lands without the practical capacity to make them useful and beneficial to the community, and hence, in order to make the land retained by the grantor productive and useful to the public (the individual grantor's interest being only incidental), it may be- come necessary to imply an easement in land conveyed (the servient estate) in favor of the dominant tract retained by the grantor. But there is found more difficulty in establishing an inference of the im- plied reservation than of the implied grant of an easement, as will appear in the following sections. Easements arising by implied reservation are classified, like those arising by implied grant into (1) easements by necessitj% and (2) easements arising from quasi easements upon a grant of the quasi servient tenement. § 99. Same — A. Reserved Easements by Necessity. Thus, if we suppose the owner of land to convey the same, retaining, however, a central building or farming tract, surrounded on all sides by the land conveyed, and without stipulating for any right of way to the surrounded tract, since it would be contrary to public policy to per- mit such tract to remain forever useless and unproductive, it will be assumed that the parties intended that the grantor should reserve a way by necessity over the lands conveyed ; and the ^ame presump- tion arises, though the grantor's excepted tract is bordered on some sides by the lands of strangers. ^^ § 100. Same — B. Quasi Easements Converted into Reserved Easements by Transfer of Servient Tenement. The earlier doctrine in England seems to have been in favor of the implication of an easement reserved by the grantor to the same extent as in the case of one impliedly granted to the grantee, where there was a sever- 52 Clark v. Cogge, 3 Cro. (Jac.) 170 ; Corporation of London v. Riggs, 13 Cli. Div. 798; Pinnington v. Galland, 9 Exch. 1; Packer v. Welsted, 2 Sim. 39, 111 ; New York, etc., R. Co. v. Railroad Com'rs, 162 Mass. 81, 38 N. B. 27 ; •Nlcliols V. Luce, 24 Pick. (Mass.) 102, 35 Am. Dec. 802; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61 ; -Whiteliouse v. Cummlngs, 83 Me. 91, 21 Atl. 743. 23 Am. St. Rep. 756 ; Jay v. Michael, 92 Md. .198, 48 Atl. 61 ; Meredith v. Frank, 56 Ohio St. 479, 47 N. E. 656. (93) § 100 EASEMENTS BY IMPLIED RESERVATION. [Ch. 4 ance of the ownership by the transfer of the servient tenement, the grantor retaining the quasi dominant estate. °^ But the later English cases seem to repudiate this rule, on the ground that a grantor cannot thus derogate from his own grant, in the absence of express stipulations, except, perhaps, where the ease- ment is of strict and obvious necessity.^* In the United States the same difficulty has been encountered, and the same divergence of view exists ; but, since no absence of an easement of this sort is apt to make the land totally useless and un- productive, the modern tendency is in the direction of the later Eng- lish cases, denying the implication of a reservation by the grantor, except, as in England, where the easement is strictly and obviously necessary.^^ But an exception must be noted to this general tendency against the creation of this sort of easement by the implied reservation of the grantor in the case of reciprocal quasi easements, which gener- ally consist of the mutual support of two buildings by one another. Thus, where one erects buildings on two adjacent lots, which build- ings mutually support each other, and he then conveys one of the buildings, retaining the other, the easement of support for his build- ing is impliedly reserved by the grantor, in consideration of the support impliedly granted to the grantee. Each is a quasi dominant, as well as a quasi servient, tenement.^" § 101. 6. Easements Acquired by Prescription. Prescriptive ti- tle is based upon the presumption of a grant, arising after long-con- s3 Nicholas v. Chamberlain, 3 Cro. (Jac.) 121 ; Pyer v. Carter, 1 Hurl. & N. 916 ; 2 Min. Insts. 28. 5*2 Min. Insts. 28; White v. Bass, 7 Hurl. & N. 722; Suffield v. Brown, 4 De Gex, J. & S. 185; Wheeldon v. Burrows, 12 Oh. Div. 31; Elliott v. Rhett, 5 Ri^. (S. C.) 405, 57 Am. Dec. 75.3, 768, note. ■' Adams v. Marshall, 138 Mass. 228, 52 Am. Rep. 271 ; Wells v. Garbutt, N. r. 430, 30 N. E. 978 ; Crosland v. Rogers, 32 S. C. 130, 10 S. E. 874 ; ■Eliason v. Grove, 85 JId. 215, 36 Atl. 844 ; Mitchell v. Seipel, 53 Md. 251, 36 Am. Rep. 404 ; Meredith v. Frank, 56 Ohio St. 479, 47 N. E. 656. But see 2 Jlin. Insts. 27, 28 ; Seibert v. Levan, 8 Pa. 383, 49 Am. Dee. 525 ; Grace JI. E. Church V. Dobbins, 153 Pa. 294, 25 Atl. 1120, 34 Am. St. Rep. 706 ; Denton v. Leddell, 23 N. J. Eq. 64 ; Greer v. Van" Jleter, 54 N. J. Eq. 270, 33 Atl. 704 ; John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 2 N. E. 1S8, 53 Am. Rep. 550 ; Dunklee v. Wiltou R. Co., 24 N. H. 489. S6 Wheeldon v. Burrows, 12 Ch. Div. 31; Suffield v. Brown, 4 DeGex, J. & S. 185 ; Richards v. Rose, 9 Exch. 218 ; Stevenson v. Wallace, 27 Grat. (Va.) 77 ; Tunstall V. Christian, 80 Va. 1, 56 Am. Rep. 581 ; Carlton v. Blake. 152 Mass. 176, 25 N. B. 83, 23 Am. St. Rep. -818 ; Everett v. Edwards, 149 Mass. 588, 22 N. E. 52, 5 L. R. A. 110, 14 Am. St. Rep. 462'; Ueatftt v. Kruger, 121 N. Y. 386, 24 N. E. 841, 9 L. R. A. 135, 18 Am. St. Ren/ S29 : Brooks v. Cur- tis, 50 N. Y, 639, 10 Am. Rep." 545 ; Partridge v. GllbeDt, 15 N. Y. 601, 69 Am. Dec. 632. V V (94) Ch. 4] EASEMENTS BY ESTOPPEL. § 102 tinued, adverse, uninterrupted, notorious, exclusive enjoyment of a right in the land of another, under a claim of title."*' The extent and mode of enjoyment of an easement by prescrip- tion depends upon the extent of the user during the prescriptive period and the customary mode of enjoyment thereof during that period. ''^ § 102. 7. Easements Acquired by Estoppel. Easements are sometimes created by estoppel ; for example, if the vendor of land actually or constructively makes representations as to the existence of an easement appurtenant to the land sold to be enjoyed in land which the vendor has not sold. Thus, where a vendor describes the land sold as bounded on a street described as running through the vendor's unsold land, the vendor is, as against his vendee (though not necessarily as against the public, or third persons), estopped to deny the existence of such a street ; the conveyance practically cre- ating a private right of way over the vendor's land along the route described in favor of the grantee.^^ So, also, a right of way in favor of the grantee, or an easement of light and air, may be created by a description in a deed by reference to a plat by which adjacent land of the vendor is appropriated to use as a street or a park.^" Nor are these results afifected by the fact that the vendor does not own the alleged servient lands at the time of such representa- tions, provided he subsequently acquires them. The estoppel takes effect, and the easement is created, as soon as this subsequent ac- quisition of title accrues to the vendor, upon much the same princi- ple as where the title to after-acquired lands themselves is acquired by estoppel.*^ 5 7 Post, §§ 843, 844. bs gee post, § 847. 59Esp)ey V. Wilkes, L. R. 7 Exch. 298; Van O'Linda v. Lothrop, 21 Pick. (JIass.) 292, 32 AmrDec. 261 ; Cole v. Hadley, 162 Mass. 579, 39 N. E. 279 ; Cox V. James, ^5^. Y. 557 ; Ott v. Kreiter, 110 Pa. 370, 1 Atl. 724 ; Carlin v. Paul, 11 Mo. 32, 47 Am. Dec. 139; Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 136 (Gil. 102), 2 Am. Rep. 109 ; Dorman v. Bates Mfg. Co., 82 Me. 438, 19 Atl. 915. See post, § 1067. 60 1 Tiffany, Real Prop. § 320 ; Oney v. West Buena Vista L. Co., 104 Va. 580, 52 S. E. 343, 2 L. R. A. (N. S.) 832, 113 Am. St, Rep. 1066 ; Fox v. Union Sugar Refinery, 109 JIass. 292 ; Child v. ChappdL"9 N. T. 246 ; Dill v. Board of Education of City of Camden, 47 N. J. Eq. 42:?; 20 Atl. 739, 10 L. R. A. 276 ; Chapln V. Brown, 15 R. I. 579, 10 Atl. 639; Maywood Co. v. Maywood, 118 111. 61, 6 N. E. 866. 61 Post, § 1066; 1 Tiffany, Real Prop. § 320; Jarnigan v. Mairs, 1 Humph. (Tenn.) 473 ; Swedish-American Nat. Bank v. Connecticut Mut. Life Ins. Co., 83 Minn. 377, 86 N. W. 420. (95) § 103 EXTINGUISHMENT OF EASEifENTS. [Qh. 4 § 103. III. Modes of Extinguishing Easements^-1. Cessation of Purposes of Easement. If the particular purpose for which the easement is granted is fulfilled, or otherwise ceases to exist, the easement also falls to the ground.*^ In determining questions of this sort, the terms of the grant, or, if it be implied, the circumstances from which the implication arises, are to be looked to in order to ascertain the scope and extent of the easement. Thus, if the easement consist of a right to maintain on adjoining land a staircase leading to a building on the dominant tract, and the dominant building is destroyed or torn down, it would depend upon the construction of the original grant whether the easement was intended to be appurtenant to that particular build- ing only, or to another building substituted in its place.*' It has been very generally laid down that rights of way by neces- sity terminate as soon as the necessity which has called them into existence ceases, as when the user thereof acquires another mode of access."* Since the creation of the easement is the direct result of the implied intention of the parties, and not of the mere necessi- ty as such,°^ the conclusion above reached, if correct, must be due to the fact that the implied grant is of an easement of passage, to last only so long as the necessity therefor exists, and not of a way to endure permanently, such as would arise under a grant of a way in ordinary terms. The implication first mentioned would be more likely to arise in the case of a way reserved by necessity, since that is based less upon the implied intention of the parties than upon the bare necessity of the case and public policy.*" 6 2 Linkenhoker v. Gray bill, 80 Va. 835; Central Wharf & Wet Dock Corp. V. Proprietors of India Wharf, 123 Mass. 567 ; Bangs v. Potter, 135 Mass. 245 ; Weis V. Meyer, 55 Ark. 18, 17 S. W. 339 ; Day v. Walden, 46 Mich. 575, 10 N. W. 26 ; I-Iahn v. Baker Lodge, No. 47, 21 Or. 30, 27 Pac. 166, 18 L. R. A. 158, 28 Am. St. Rep. 723. / 6 3 Douglas V. Coonley, 15G ^Y. 521, 51 N. E. 283, 66 Am. St. Rep. 580; Shirley v. Crabb, 138 Ind. 200, 37 N. E. 130, 46 Am. St. Rep. 376; I-Iahn v. Baker Lodge, No. 47, 21 Or. 30, 27 Pac. 16G. 13 L. R. A. l.">8, 28 Am. St. Rep. 723. So, also, in the case of the destruction of a party wall, or of the^build- iDgs separated thereby. Douglas j-. Cx)onley, supra ; Partridge v. Gii ; Collins v. Prentice, 15 Conn. 39, 38 Am. Dec. 61 ; Oliver v. Hook, 47 Md. 301 ; Alley v. Carleton, 29 Tex. 78, 94 Am. Dec. 260 ; Oswald v. Wolf, 120 111. 200, 21 N E 839. 6 6Ante, § 96. eeAnte, § 99. (96) Cll. 4J ABANDONMENT OF EASEMENTS. § 105 § 104. 2. Easements Extinguished by Express Release. If the owner of the dominant estate expressly release to the servient own- er the outstanding right to use the latter's land for the purposes of the easement, it is obvious that this should extinguish the ease- ment. ^^ The only principle to be here noted is that, even at common law, such a release is required to be under seal, since it must rise to the same dignity as the instrument creating the easement (a grant). ^'^ § 105. 3. Easements Extinguished by Abandonment (Implied Release). Prolonged nonuser of an easement, standing alone, does not suffice to show an abandonment, even though the nonuser con- tinues for twenty years or other prescriptive period.''^ In addition; to the mere nonuser, there must be either acts on the part of the owner of the dominant tract, showing an intent to abandon perma- nently the use of the servient land,"* or acts of the owner of the servient tract, showing an intent to obstruct the dominant owner's enjoyment of the easement.'^ It is not necessary, however, that the nonuser, when accompanied by other acts of the dominant owner, should continue for the full period of prescription. '^^ 67 See Richards v. Attleboroiigh Branch R. Co., 1.^3 Mass. 120, 26 N. E. 418: McAllister v. Devane, 76 N. C. 57; Flaten v. Moorehead, 58 Minn. 324, ."9 X. W. 1044. 68 2 Miu. Insts. 20; 1 TifCany, Real Prop. § 329; Co. Litt. 264 h; Bac. Abr. Release (D). 6 9 Moore v. Rawson, 3 B. & Cr. 332; Ward v. Ward, 7 Exch. 838; Watts 1-. C. T. Johnson, etc.. Corp., lU.") \'a. .jl!), rCj, 'i-l S. E. 317; Norfolk & \V. R. Co. V. Obenchain, 107 Vay506, 59 S. B. 604; King v. Murphy, 140 M;iss. 254, 4 N. E. 566; Butterfiel^/V. Reed, 160 Mass. 361, ;35 X. E. 1128; Canny v. An- drews, 123 Mass. 155; Bannon v. Angler, 2 Allen (JIass.) 128; Dana v. Valentine, 5 Mete. (JIass.) 8; Welsh v^ff^ylor, 134 X. Y. 450, 31 X. E. 89(;. IS L. R. A. 535; Bombaugh v. Miller, 82 Pa. 203; Liiidenian v. Lindsey, 09 Pa. 93, 8 Am. Rep. 219; Willey y. Xorfolk Southern R. Co., 96 N. C. 408, 1 S. E. 446; Poison y. Ingram, 22 S. C. 541; Ford y. Harris, 95 Ga. 97^ 22 S. E. 144; Dill v. ?fho(l Board. 47 X. J. Eq. 421, 20 Atl. 739, 10 L. B.'. A. 276; Jones y. Xan Bochoye. 103 Mich. 98. 61 N. W. 342; Day v. Walden, 46 Mich. ."7.1. 10 N. AV. 26; Pratt v'. Sweetser, 68 Me. 344; Wheeler v! Wilder. 61 X. H. 2; Steere y. Tiflfany. ]3 R. I. 568. '0 Moore y. Rawson, 3 B. & Cr. 3;!2 ; Watts y. C. I. Johnson & Bowman keal Estate Corp., 105 Va. 525, 54 S. E. 317 : King v. Murnjif, 140 Mass. 254, 4 X. E. .566; Canny y. Andrews. 123 Jiass. l."i."j; Rnell v^fi^itt, 110 N. Y. 595. 18 N. E. 370, 1 L. B. A. 414; Stein v. Dahm, 96 Ala. 481, 11 South. 597; Eouisyille & X. R. Co. y. Coyingtou. 2 Bush (Ky.) .j26 ; Moiiashan y. Memphis Fair & Exposition Co., 95 Tenn. 108, 31 S. W. 497 ; Willey y. Xorfolk Southern R. Co., 96 N. C. 408. 1 S. E. 446; Fitzpatrick v. Boston & M. R. Co., 84 Me. 33, 24 Atl. 432 ; Jones y. Van Bochoye, 103 Mich. 98, 61 X. W. 342. 71 See post, § 108; Xorfolk & W. R. Co. y. Obenchain, 107 Va. 601, 59 S. E. 604. 72 Moore v. Rawson, 3 B. & Cr. 332; Reg. v. Chorley, 12 Q. B. 515; Scott Minor & W.Real Pp.op. — 7 (gjs § 106 CHANGE OF CONDITION OF DOMINANT TRACT. [Ch. i § 106. 4. Easements Extinguished by Change of Condition of Dominant Tract. The effect upon an easement of a change or al- teration in the character of the dominant tract, involving an increas- . Cd use of the servient land, depends, in the case of an easement by express grant or reservation, upon the construction of the language used; the general rule being that the easement is intended to con- tinue, whatever changes or alterations may occur in the dominant tenement.'^ But if the intention is shown to confine the enjoy- ment of the easement to the needs of the dominant tenement as they exist at the time of the grant, and a subsequent change occurs in such tenement that necessarily and unavoidably, calls for an in- creased use of the servient tract, so that the easement cannot con- tinue to be used as first intended, the change extinguishes the ease- ment.^* Thus it has been held that if the owner of a private house, to which a right of drainage through the lands of another is appur- tenant, changes his house into a sanitarium, the easement of drain- age is extinguished.' ° So, also, upon the conveyance of the domi- nant tenement amongst several persons, whether each of the gran- tees is entitled to use the easement as before is a question of the construction of the original grant or reservation.'" On the other hand, if the easement arises by prescription, a change in the dominant estate calling for a burden upon the servi- ent land exceeding that devolving upon it by its customary use during the prescriptive period, if the increased use is inseparable from the former use, will operate an extinguishment of the ease- ment." V. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749 ; Canny v. Andre-n-s, 123 Mass. 155 ; Fitziiatvick v. Boston & M. R. Co., 84 Me. 33, 24 Atl. 432 ; Steere v. Tiffany, 13 R. I. 568 ; Louisville & N. R. Co. v. Covington, 2 Bush (Ky.) 526. But, see, Warren v. Syme, 7 W. Va. 474; Corning v. Gould, 16 Wend. (N. T.) 531 ; Cox v. Forrest, 60 Md. 74 ; Wilder v. City of St. Paul, 12 Minn. 192 (Gil. 116) ; Norfolk & W. R. Co. v. Obenchain, 107 Va. 601, 59 S. E. 604. 7 3 Newcomen v. Coulson, 5 Ch. Div. 133; United Land Co. v. Great Eastern R. Co., 10 Ch. App. 586; Bangs v. Parker, 71 Me. 458; Gunson v. Healy, 100 Pa. 42 ; Forbes v. Com., 172 Mass. 289, 52 N. E. 511 ; ante, § 103. 74 Harvey v. Walkers, L. R. 8 C. P. 162; Allan v. Gomme, 11 Ad. & E. 759; Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 136 (Gil. 102), 2 Am. Rep. 109; Brossart v. Corlett, 27 Iowa, 288. '5 Wood v. Saunders, 10 Ch. App. 582. 7 6 Gunson v. Healy, 100 Pa. 42; Watson v. Bioren, 1 Serg. & R. (Penn.) 227, 7 Am. Dec. 617 ; Forbes v. Com., 172 Mass. 289, 52 N. E. 511 ; Whitney V. Lee, 1 Allen (Mass.) 198, 79 Am. Dec. 727; Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 136 (Gil. 102), 2 Am. Rep. 109 ; Brossart v. Corlett, 27 Iowa, 288. 7T Williams v. James, L. R. 2 0. P. 577 ; Wimbledon, etc.. Conservators v. Dixon, 1 Ch. Div. 362. (98) Ch. 4] ADVERSE ACTS OF SERVIENT OWNER. § 108 In the case of easements arising by implied grant or reservation, the measure of the extent of the user is the needs of the dominant tenement at the time the implied grant or reservation arises,''' and any subsequent change in the dominant tract which involves una- voidably an increase of burden upon the servient tract will accord- ingly extinguish the easement. § 107. 5. Easements Extinguished by Union of Dominant and Servient Tracts. Since one cannot have an easement in his own land, the general ownership of the servient tract merging the mere right to use the same for a particular purpose, it follows that, when the dominant and servient estates become vested in the same per- son in fee simple, the easement is completely extinguished and merged, becoming a mere ordinary incident of the general owner- ship of the servient tract. ^* But, in order that such complete extinguishment take place, it is necessary that the same person own both tracts in fee simple and by the same sort of title. If he has only a life estate or a term for years in one or both tracts, though for the time being the owner of both, this does not extinguish the easement, but merely suspends it until the termination of his interest in one of the tracts or in both, after which it is ipso facto revived.*" So, also, the fact that the owner holds the legal and equitable ti- tle to one tract, while holding merely the bare legal title or the bare equitable title to the other, prevents an extinguishment of the easement; *^ and so would the fact that the user's interest in one of the tracts is undivided, as where he is a joint tenant or tenant in common thereof.*^ § 108. 6. Easements Extinguished by Adverse Acts of Servient Owner. An easement, once created, is not extinguished by the mere acts of the servient owner in themselves, however adverse they may be to the enjoyment of the easement by the dominant pro- prietor, and however clearly they may indicate the desire and in- 7 8 Ante, § 96. 79 2 Min. Insts. 20; Bright v. Walker, 1 Cromp. M. & R. 211, 219; At- -water v. Boaflsh, 11 Gray (Mass.) 150; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748 ; Plimpton v. Converse, 42 Vt. 712 ; Capron v. Greeuway, 74 Md. 289, 22 Atl. 269 ; Morgan v. Meuth, 60 Mlcb. 238, 27 N. W. 509. 80 2 Min. Insts. 20; Thomas v. Thomas, 2 Cromp. M. & R. 34; James T. Plant, 4 Ad. & E. 749; Pearce v. McClenaghan, 5 Rich. Law (S. C.) 178, 55 Am. Dee. 710. See Petition of Bull, 15 R. I. 534, 10 Atl. 484. 81 Ritger V. Parker, 8 Cush. (Mass.) 145, 54 Am. Dec. 744; Pearce v. Mc- Clenaghan, 5 Rich. Law (S. C.) 178, 55 Am. Dec. 710 ; Ecclesiastical Com'rs V. Kino, 14 Ch. Dlv. 213. 82 Atlanta Mills v. Mason, 120 Mass. 244 ; Dority v. Dunning, 78 Me. 381, •6 Atl. 6. (99) § 103 ADVEESB ACTS OF SERVIENT OWNEE. [Ch. 4 tention of the servient owner to put a stop to the use of his land. There must be added to those acts other circumstances showing an intention on the part of the dominant owner to abandon or release the easement. Thus, if adverse acts of the servient owner are coupled with the nonuser of the easement by the dominant owner this will generally be evidence, as we have seen, of an abandonment of the easement, even though such adverse acts and nonuser have not lasted during the prescriptive period.** So, also, if the servient owner should by adverse acts lasting through the prescriptive period obstruct the dominant owner's en- joyment, intending to deprive him of the easement, he may by pre- scription acquire the right to use his own land free from the ease- ment, and thus extinguish it, provided his adverse acts constitute a legal interference with the other's right and would give rise to a right of action by him.** Lastly, the servient owner may extinguish an easement by per- forming acts thereon permanently obstructive of the easement un- der the license or authority of the owner of the easement; for in such case the license is irrevocable, if it authorizes the erection of buildings on the servient estate or other acts involving expendi- ture, and such expenditure has been made in whole or in part.*' Thus, in Winter v. Brockwell,*" one entitled to an ' easement of light over another's land gave a license to the servient owner to erect a building on the servient land which obstructed the light, and it was held that the license was irrevocable, and the easement ex- tinguished. 8 3 Ante, § 105. Si Watts V. C. I. Johnson & Bowman Real Estate Corp., 105 Va. 525, 54 S. E. 317; Norfolk & W. R. Co. v. Obenchain, 107 Va. 601, 59 S. E. 604; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Smith v. Langewald, 140 Mass. 205, 4 N. E. 571 ; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021 ; Liudeman v. LIndsey, 69 Pa. 93, 8 Am. Rep. 219; Spackman v. Steidel, 88 Pa. 453; State v. Suttle, 115 N. C. 784, 20 S. E. 725; Bowen v. Team, Rich. Law (S. C.) 298, GO Am. Dec. 127; Louisville & N. R. Co. v. Quinn, 04 Ky. 310, 22 S. W. 221 ; Dill v. School Board, 47 N, J, Eq, 421, 20 Atl. iry.K 10 L. R, A. 276 ; Bentley v. Root, 19 R. I, 205, 32 Atl. 918 ; City of Galveston v. Williams, 69 Tex. 449, 6 S. W. 8G0 ; Day v. Walden, 46 Mich, 575, 10 X, W. 20, ssllawlins v, Shippam, 5 Bl & Cr, 221, explaining Winter v. Brockwell, 8 East, 308 ; Liggius v. Inge, 7 Bing. 682 ; Boston & P. R, Corp, v, Doherty, 154 Mass, 314, 28 N, B. 277; Jlorse v. Copeland, 2 Gray (Mass,) 302; Cart- wright V. Maplesden, 53 N. Y. 022 ; White v. Manhattan Ry, Co,, 139 N, Y, 19, 34 N. E. 887; Stein v. Dahm,. 96 Ala. 481, 11 South, -597: Vogler v, Geiss, 51 Md, 407; Addison v. Hack, 2 Gill (Md.) 221, 41 Ain. Dec. 421. But see Peck v. Loyd, 38 Conn, 56G. See post, § 127. 86 8 East, 308. See Hawlins v. Shippam, 5 B. & Cr. 221. (100) Cll. i] CLASSES OF WAYS. S-JJ^ § 109. 7. Easements Extinguished by Transfer of Servient Tract to a Purchaser without Notice. Certain easements are of such a nature that the use and enjoyment of them is obvious and apparent, for example, the right of drip, surface drains, etc. ; while the use and enjoyment of others are or may be hidden and invisible to the physical eye, such as underground drainage, or may be entire- ly consistent with the absence of all right to such use, as in the case of the easement of light, air, or prospect over a vacant lot. The last two classes of easements may readily escape the notice of a purchaser of the servient lot, and it would be an injustice to him to require him to admit such a burden, when he buys without notice thereof. Hence it is a well-established principle governing the purchase of servient tenements that an easement therein is ex- tinguished unless the purchaser has either actual notice of the ex- istence of the easement, or constructive notice from the recordation of the express grant or reservation creating it, or from the fact that its use and enjoyment is open and visible.^'' § 110. IV. Particular Instances of Easements, Their Use and Enjoyment — 1. Ways. These are divided into public and private; but it is only the latter class that constitutes private property in real estate, and to it our attention will be confined. The private way is perhaps the most frequently occurring and the most typical of all easements, and the principles regulating the use and enjoyment of ways in the main regulate the other easements also. The principles applicable to ways have already been so fully con- sidered that it is scarcely necessary to examine the subject further, except in regard to the various classes of ways and the repair of the way. § 111. Same — The Several Classes of Ways. Ways include both highways and private ways ; but, as has been already said, the latter meaning is the one usually intended, and it is in that sense alone that it belongs to the subject of easements. A highway, or public road, is a way common to all persons, and at common law may be a foot way, horse way, drift or drive way, etc.** If it is not common to all persons, but only to the residents of a particular locality, it is at common law distinguished as a com- mon way.** 8 7 Scott V. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Kep. 749; Taylor y.^ Millard, 116/X Y. 244, 23 N. E. 376, 6 L. R. A. 667; Coruing v. Gould, le'^ Wend. (N. Y.) 531 ; Rome Gaslight Co. v. Meyerhardt, 61 Ga. 287 ; Wissler v. Hersbey, 23 Pa. 333 ; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 25 Am. St. Rep. 421 ; Taggart v. Warner, 83 Wis. 1, 53 N. W. 33. See ante, §§ 97, 100. 88 2 Min. Insts. 17. 89 2 Mln. Insts. 17. Until a period comparatively recent, the legal idea (101) § 111 CLASSES OF WATS. [Ch. 4 The several classes of private ways are a foot way, a horse or drift way (for a horse or the driving of cattle) and a cart way (for any manner of wheel vehicle). A cart way includes in general all the rest, and a horse or drift way includes a foot way ; but one who has only a foot way cannot ride or drive cattle over it, nor can one entitled only to a drift way pass over it with a vehicle.'" § 112. Same — Repair of the Way. When there is no stipula- tion to the contrary, it is the duty of the grantee of the way to re- pair it, and he always has a right to enter upon the servient land for that purpose."^ The grantor (the servient owner) is only bound to repair when it is so agreed.'^ When it is the duty of the servient owner to repair, and he fails to do it, the owner of the easement may go upon the adjacent lands of the servient owner whenever the way becomes foundrous and impassable; but he has no such privilege if it is his own duty to repair.^^ § 113. 2. Support of Land. Every owner of land is entitled, as a matter of natural right, to the support of his land by (1) adja- cent land, and (2) subjacent land, and therefore is entitled to re- cover damages from the servient owner for excavating or improv- ing the servient land, if it causes a sinking or disturbance of his own. This right he is as much entitled to as to the land itself, with- out any grant by the servient owner or any act of acquisition on his own part."* of a higliway was that it should lead from town to town, and therefore the ancient form of Indictment for obstructing it showed the termini. The modern idea, however, is, as above stated, that it is common to all people alike. 2 Min. Insts. 17, 18. 2 Min. Insts. 19; 1 Th. Co. Lit. 233, 234, note (B, 1) ; Ballard v. Dyson, 1 Taunt. 279; "Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113, note. 912 Min. Insts. 20; Pomfret v. Ricroft, 1 Saund. 322a, note (3), 323, note (6) ; Brown v. Stone, 10 Gray (Mass.) 61, 69 Am. Dec. 303 ; Prescott v. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266; McMillan v. Cronin, 75 N. Y. 474 ; Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 219 ; Walker v. Pierce, 38 Yt. 94 ; Pico v. Colimas, 32 Cal. 578. 92 2 Min. Insts. 20; Norfolk & W. R. Co. v. De Board, 91 Va. 700, 22 S. E. 514, 29 L. R. A. 825 ; Walker v. Pierce. 38 Vt. 94 ; Doane v. Badger, 12 JIass. 65 ; Wynkoop v. Burger, 12 Johns. (N. T.) 222 : Ballard y. Butler, 30 Me. 94 ; Gillis v. Nelson, 16 La. Ann. 275. 93 2 Min. Insts. 20. In the case of a highway, which is for the service of the public, if the usual track is impassable, it is for the general good that people should be entitled to pass in another line ; and the person whose land is thus invaded must seek his redress, it is presumed, against the overseer, or other public officer, whose duty it is to keep the road in repair. 2 Min. Insts. 20; 2 Bl. Com. 36; Taylor v. Whitehead, 2 Dougl. 749. 84 2 Min. Insts. 24; Humphries v. Brogden, 12 Q. B. 739; Northern Transp. Co. V. Chicago, 99 U. S. 635, 25 L. Ed. 336 ; Tuustall v. Christian, 80 Va. 1, (102) Ch. 4] SUPPORT OF LAND. § 113 The burden of this support extends to so much of the adjacent land, whether owned entirely by one person or not, as is naturally required to afford the proper support,"" but does not extend to land which, in the natural state of things, is so far distant that no exca- ' vations upon it will affect the other land, though the intervening land has been so excavated that the supported land has come to rely (though not by nature) for support upon the more distant land."" But the right is merely the right of support, not the right to de- mand that the supporting land shall remain in its natural condi- tion (for that would put an end to all excavations and improve- ments), and hence, if the servient owner substitutes artificial sup- port, it will sufHce if efficient. It follows, also, that there is no right of action until the plaintiff's land actually sinks.*" According to the prevailing doctrine in the United States, the rule has no application where the excavation is made by the munic- ipal authorities in the course of grading a street."* But this doc- trine is not recognized in every state, and it would seem that the minority view is sustained by the better reason."" A similar natural right of support exists, as against subjacent land, in cases where the ownership of the surface of the land and of the minerals and soil under the surface is in separate persons ; the principles being the same as govern lateral support or the support by adjacent land.^ 56 Am. Rep. 581; Gilmore v. Driscoll,^'122 Mnss. 199, 23 Am. Rep. 312; Moody V. McClelland, 39 Ala. 4.'. 84 Am. Dec. 770 : Richardson v. Vermont Cent. R. Co., 25 Vt. 465, 60 Am. Dec. 283; Charless v. Rankin, 22 Mo. 566, GG Am. Dec. 642. 95 Birmingham v. Allen, 6 Ch. Div. 284; Keating v. City of Cincinnati, 38 Ohio St. 141, 43 Am. Rep. 421. 96 Birmingham v. Allen, 6 Ch. Div. 284. But see Foley v. Wyeth, 2 Allen (Mass.) 131, 79 Am. Dec. 771. 9 7 Backhouse t. Bonomi, 9 H. L. Gas. 503; Bonomi v. Backhouse, El., Bl. & El., 654 ; Darley Colliery Co. v. Mitchell, 11 App. Cas. 127 ; Schultz v. Bower, 57 Minn. 493, 59 N. W. G31. 47 Am. St. Rep. 630; Smith v. City of Seattle, 18 Wash. 484, 51 Pac. 3057, 63 Am. St. Reii. 910. But see Noonan V. Pardee, 200 Pa. 474. .50 Atl. 2.5.'i. 55 h. R. A. 410, 86 Am. St. Rep. 722. See_ 15 Harv. Law Rev. 574. 98 2 Dillon, Mun. Corp. §§ 989, 990; RadelifC v. Mayor, etc., of Brooklyn, 4 N. Y. 19.5\ife Am. Dec. ?,r,7 ; Fellowes v. City of New Haven, 44 Conn. 240, 26 Am. Relp^ 447 ; :\Iayor. etc., of City of Rome v. Omberg, 28 Ga. 46, 73 Am. Dee. 748; City of Quincy v. Jones, 70 111. 231, 20 Am. Rep. 240. See 1 Va. Law Reg. 619. 9 9 Stearns v. Richmond, 88 Va. 992. 14 S. E. 847, 29 Am. St. Rep. 758; D.yer v. City of St. Paul, 27 Jlinn. 457. 8 X. W. 272 ; Parke v. City of Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. GS, .34 Am. St. Rep. 839 ; Keating V. City of Cincinnati, 38 Ohio St. 141. 43 Am. Rep. 421; City of Cincinnati V. Penny, 21 Ohio St. 499, 8 Am. Rep. 73. 1 Humphries v. Brogden, 12 Q. B. 739 ; Marvin v. Brewster Iron Min. Co., (103) § 113 SUPPORT OF LAND. [Ch. 4 The right of support, wherever it exists, whether by natural right or by agreement, supposes an absolute obligation upon the servi- ent owner, regardless of any negligence on his part in making the excavations or improvements. If he is guilty of negligence, and ex- cavates without due care and warning, and buildings fall or are weakened as the result, he is liable, even in the absence of any easement of support.'' § 114. 3. Support of Buildings. The natural right of support, either lateral or subjacent, applies in general only to land in its nat- ural state. If such a right is claimed for the added weight of build- ings, or for the support of buildings by buildings an express grant or reservation of an easement to that effect must be shown. ^ But an exception is to be noted to this general principle, in the case where, as a result of the excavation, the land would have fall- en any way, even without the added weight of the building. In such case, according to the better vie'w, the owner may recover dam- ages for the building as well a^ for the land.* § 115. 4. Party Walls and Division Fences, Party walls and division fences have much the same general meaning; the first be- 55 N. Y. 538, 556, 14 Am. Rep. 322 ; Carlin v. Cliappel, 101 Pa. 348, 47 Am. Rep. 722 ; Burgner v. Humphrey, 41 Ohio St. 340 ; Wilms v. Jess, 94 111. 464, 34 Am. Rep. 242. This applies, also, as betwjieii the upper and lower floors of a building. See Graves v. Berdan, ^ X. "S. 501 ; McConnel v. Kibbe, 33 111. 175, 85 Am. Dec. 265 ; Rhodes v. TileCormick, 4 Iowa, 375, 6S Am. Dec. 063 ; Harris v. Rj ding, 5 M. & W. 60. 2 2 Min. Insts. 24 ; Dodd v. Holmes, 1 Ad. & El. 493 ; Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 042, 648, note. a 2 Min. Insts. 24 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Partridge v. Scott, 3 M. & W. 220 ; Dalton v. Angus, 6 App. Cas. 740 ; Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; Pierce v. Dyer, 109 Mass. 374, 12 Am. Rep. 710; Thurston v. Hancock, 12 Mass. 220, 7 Am. Dee. 57; Tunstall v. Chris- tian, 80 Va. 1, 56 Am. Rep. 581 ; Northiern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336 ; Dorrity v. Rappf 72 N. Y. 307 ; Marviri' v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am. Kep. 322 ; Partridge v. Gilbert, 15 N. Y. 001, 69 Am. Dec,^632; Wilms v. Jess, 94 111. 464, 34 Am.'-ftep. 242; Panton V. Holland, 17v Johns. (N. Y.) 92, 8 Am. Dec. 369; Jloody v. McClelland, 39 Ala. 45, 84 Anr: Dec. 770; Charless v. Rankin, 22 Mo. 566, 60 Am. Dec. 642; City of Quincy v. Jones, 76 111. 231, 20 Am, Rep. 243. 4 Brown v. Robins, 4 Hurl. & N. 186 ; Hamer v. Knowles, 6 Hurl. & N. 454 ; Stearns v. City of Richmond, 88 Va. 992, 14 S. E. 847, 29 Am. St. Rep. 758; Wilms v. Jess, 94 111. 464, 34 Am. Rep. 242; Parke v. City of Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. 68, 34 Am. St. Rep. 839; Beard v. Murphy, 37 Vt. 99, 86 Am. Dec. 693. But se^ Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312; Panton v. Hollaeyiri7 Johns. (N. Y.) 92, 8 Am. Dec. 369 ; Schultz v. Byers, .53 X. J. Law, 442, 22 Atl. 514, 13 L. R. A. 569, 26 Am. St. Rep. 435; t^uincy v. Jones, 76 111. 231, 20 Am. Rep. 243; Gildersleeve v. Hammond, 100 Mich. 431, 07 X. W. 510, 33 I.. R. A. 46; Mc- Gettigan v. Potts, 149 Pa. 155, 24 Atl. 198; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901. (104) •Ch. 4] PARTY WALLS. § 11(5 ing applied to the case of a dividing wall between two buildings be- longing to different owners, each having an interest in the wall, and the latter to a fence or hedge between two tracts of land, the ■owner of each tract having an interest in the fence or hedge. ^ But the nature of the interests held by the adjoining owners in these two subjects are somewhat different, and therefore they had best be treated separately. § 116. Same — A. Party Walls. An easement in a party wall may exist in two forms : (1) The wall may be the property of one of the owners, being erected entirely upon his land, but by grant or prescription subject to an easement of support for beams, raft- ers, etc., on the part of the owner of the adjacent house, and a right by him to have it maintained as a party wall." (2) The wall m.ay be built partly on the land of each of the adjoining owners, each therefore owning his half of the wall, but with reciprocal or mutual easements of support, etc. The latter is much the more usu- al form.^ , Apart from statute or agreement, the owner of one tract has no right to build a wall partly on another's land, and, if he does so, he cannot compel the adjoining proprietor to contribute to the ex- pense of its erection or its maintenance ; ^ and, furthermore, such 5 As to party walls, see Watson v. Gray, 14 Ch. Div. 192 ; Rogers v. Siii- slieimer, 50 N. T. 646; Brooks v. Curtis, 50 N. Y. 639, 10 Am. Rep. 545: Tate V. Fratt, 112 Cal. 613, 44 Pac. 1061; Graves v. Smith, 87 Ala. 450, 6 South. 308, 5 L. R. A. 298, 13 Am. St. Rep. 60; Sanders v. Martin, 2 Lea (Tenn.) 213, 31 Am. Rep. .598 ; Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Reji. 491. As to division fences, see Star v. Rookesby, 1 Salk. 335 ; Lawrence v. Jenkins, L. R. 8 Q. B. 274; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Id., 118 Mass. 156; Rust v. Low, 6 Mass. 90; Castner v. Riegel, 54 N. J. Law, 498, 24 Atl. 484 ; Adams v. Van Alstyne, 25 N. Y. 232. 6 Rogers V. Sinsheimer, 50 N. Y. 646 ; Tate v. Fratt, 112 Cal. 013, 44 Pac. 1061; Barry v. Edlavitch, 84 Md. 95, 35 Atl. 170, 33 L. R. A. 294. 7 Schwalm v. Beardsley, 106 Va. 409, 56 S. B. 135 ; Brooks v. Curtis, 50 TST. Y. 639, 10 Am. Rep. 545 ; Partridge v. Gilbert, 15 N. Y. 601, 69 Am. Dec. 632; Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 549; Graves v. Smith, 87 Ala. 4.50, 6 South. 308, 5 L. R. A. 298, 13 Am. St. Rep. 60; Sanders v. Martin, 2 Lea (Tenn.) 213, 31 Am. Rep. 598 ; Hoffman v. Kuhn, 57 Miss. 740, 34 Am. Rep. 491 ; Bloch v. Isham, 28 Ind. 37, 92 Am. Dec. 287 ; Dauenhauer V. Devine, 51 Tex. 480, 32 Am. Rep. 627 ; Ingals v. Plamondon, 75 111. 118 ; Andrae v. Haseltine, 58 Wis. 395, 17 N. W. 18, 46 Am. Rep. 635. If these easements do not exist, the wall is mere property, owned either entirely by one of the parties or in common by both, and is subject to the ordinary rules governing property of that description. Watson v. Gray, 14 Ch. Div. 192 ; Cubitt V. Porter, 8 B. & Cr. 257; Mayfair Property Co. v. Johnston, [1894] 1 Ch. 508; Matts v. Hawkins, 5 Taunt. 20; Murly v. McDermott, 8 Ad. & E. 138 ; Montgomery v. Trustees of Masonic Hall in City of Augusta, 70 Ga. ■38; Sherred'v. Cisco, 4 Sandf. Ch. (N. Y.) 480. 8 2 Min. Insts. 28 ; 3 Kent, Com. 437 et seq. (105) § 116 PARTY WALLS. [Oh. 4 adjoining proprietor may use the wall, though not contributing to its erection or maintenance, since it has become part of his land by its erection thereon without his consent.'' Statutory provisions touching party walls exist in some states, usually in the form of an authority to the owner of land to place a wall partly on adjoining land, the owner of the latter to have the right to use the same upon proper contribution to the expense.^" § 117. Same — B. Division Fences. At common law, in the case of division fences, as of party walls, there is no obligation upon one landowner to assist in the erection or maintenance thereof, in the absence of agreement, express or implied. ^^ But quite generally in this country statutes have been enacted enabling adjoining proprietors, without an agreement to that effect, to compel contributions to the erection and maintenance of divi- sion fences.^^ Independently of statute, there exists no obligation upon the owner of land to fence it in, in order to keep out trespassing per- sons or cattle ; there being at common law an absolute obligation upon other persons to remain on their own lands or the highways and public places, and to keep their cattle there, by means of fences or otherwise. In other words, in the case of cattle and domestic animals, the common law placed the duty upon the owner of the animals to keep them upon his own land by fences or other means, and imposed no duty upon the owner of other land to keep them out." 9Ante, § 21; Sherred v. Cisco, 4 Sandf. Ch. (N. Y.) 4S0; Allen v. Evans, 161 Mass. 485, 37 N. B. 571 ; Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214 ; Antomarchi v. Eussell, 63 Ala. 336, 35 Am. Rep. 40 ; Bisquay v. Jeunelot, 10 Ala. 245, 44 Am. Dec. 483 ; List v. Hornbrook, 2 W. Va. .340 ; Orman v. Day, 5 Pla. 385; Grlmley v. Davidson, 133 111. 116, 24 N. E. 439. But an agreement to contribute to tbe expense of the wall is sometimes presumed from the acquiescence of the adjoining owner in its construction, knowing that the builder expects to be repaid. See Day v. Caton, 119 Mass. 513, 20 Am. Eep. 347 ; Huck v. Flentye, 80 111. 258 ; Zeininger v. Schnitzler, 48 Kan. 63, 28 Pac. 1007. 10 See 2 Min. Insts. 28; Jones, Easements, § 633 et seq. ; Vollmer's Appeal, 61 Pa. 118 ; Swift v. Calnan, 102 Iowa, 206, 71 N. W. 233, 37 L. R. A. 462,. 63 Am. St. Rep. 443. Such legislation has been held to be constitutional. Swift V. Calnan, supra. But see Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214 ; Traute v. White, 40 X. J. Eq. 437, 19 Atl. 196. 11 2 Min. Insts. 2S ; 3 Kent, Com. 437 et seq. ; Rust v. Low, 6 Mass. 95 ; Newell v. Hill, 2 Mete. (Mass.) 1.S2; Walker v. Watrous, 8 Ala. 493, 42 Am. Dec. 646. 12 2 Min. Insts. 28. 13 2 Bl. Com. 211; Boyle v. Tamlyn, 6 B. & Or.- 329. 337; Polndexter v. May, 98 Va. 148, 34 S. E. 971, 47 L. R. A. 588,. 6 Ya. Law Reg. 388, note; Baylor v. Baltimore & O. R. Co., 9 W. Va. 270; Thayer v. Arnold, 4 Mete. (lOG) Ch. 4] LIGHT, AIE AND PROSPECT. § 118 It is to be noted, also, that in the absence of statute the common- law rule as to the necessity for fences applies to railroad tracks, as well as to the lands of individuals ; that is, that the railroad com- pany is not bound to fence out trespassing cattle, and is not liable for injuries to such cattle unless guilty of such negligence as would make it liable to any trespasser.^* § 118. 5. Light, Air and Prospect. While one has no natural right to either light, air or prospect, and cannot object because he has been cut off from either by the erection of buildings upon adja- cent vacant land,'^^ even though this be done maliciously and for the sole purpose of injuring or annoying him,^° yet with respect to such air as he does get he is by»natural right- entitled to have it rea- sonably pure, and free from pollution by the use made of the_ad-J jacent land, as by the smoke, odors, dust or vapors of railroad trains, factories, etc.,^^ unless he has surrendered or released such right by grant or by abandonment.^' (Mass.) 589 ; Rust v. Low, 6 Mass. 90 ; Holladay v. Marsh, 3 Wend. (N. T.) 143, 20 Am. Dec. 678; A'andegrift v. Rediker, 22 N. J. Law, 185, 51 Am. Dec. 262; Noyes v. Colby, 30 N. H. 143; Bonner v. De Loacli, 78 Ga. 50, 2 S. B. 546 ; Webber v. Closson, 35 Me. 26. The only exception to this rule is in the case of cattle properly driven or being on a highway or in some other public place where they may legitimately be. Dovaston v. Payne, 2 H. Bl. 527 ; Hartford v. Brady, 114 Mass. 466, 19 Am. Rep. 377 ; Avery v. Maxwell, 4 N. H. 36 ; Lord v. Wormwood, 29 Jle. 282, 1 Am. Rep. 586. i*Fawcett v. York & N. M. R. Co., 16 Q. B. 610; Eames v. Salem & L. R. Co., 98 Mass. 560, 96 Am. Dec. 676; Munger v. Tonawanda R. Co., 4 N; Y. 349, 53 Am. Dec. 384 ; Vandegrift v. Rediker, 22 N. J. Law, 185, 51 Am. Dec. 262; Louisville & F. R. Co. v. Ballard, 2 Mete. (Ky.) 177; Stucke v. Jlllwaukee & M. R. Co., 9 Wis. 202. isAldred's Case, 9 Co. 59; Attorney General v. Doughty, 2 Ves. Sr. 453; Russell V. Watts, 10 App. Cas. 590, 596, 610; Butt v. Imperial Gas Co., 2 Ch. App. 158; Taplingv^ Jones, 11 H. L. Cas. 290; Jenks v. Williams, 115 Mass. 217 ; Mahan v.^pipown, 13 Wend. (N. Y.) 261, 28 Am. Dec. 461 ; Gallagher V. Dodge, 48 Conn. "^87, 40 Am. Rep. 182; Pierre v. Fernald, 26 Me. 436, 46 > Am. Dec. 573 ; Western Granite & Marble Co. v. Knickerbocker, 103 Cal. Ill, 37 Pac. 192 ; Guest v. Reynolds, 68 111. 478, 18 Am. Rep. 570 ; Tompkins V. Harwood, 24 N. J. Law, 425 ; Bay v. Lynes, 10 Ala. 63 ; Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 South. 625, 60 Am. Rep. 62. 16 Rideout v. Knox, 148 M^s. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; Phelps v. Nowl^72 N. Y. 39, 28 Am. Rep. 93; Mahag^Af^rown, 13 Wend. (N. Y.) 261, 28rAm. Dec. 461 ; Jenkins v. Fowler, 24 Pa. 308 ; Gal- lagher v. Dodge, 48 Conn. 387, 40 Am. Rep. 182; Letts v. KgaSler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177. But see Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510 ; Peek v. Roe, 110 Mich. 52, 67 N. W. 1080 ; Chesley v. King, 74 Me. 164, 43 Am. Rep. 569. 17 St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642 ; Rapier v. Tram- ways Co., [1893] 2 Ch. 588; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 18 Sturges V. Bridgman, 11 Ch. Div. 852; Dana v. Valentine, 5 Mete. (Mass.) 8. (107) § 118 LIGHT, AIE AND PROSPECT. [Ch. 4 But an owner of land may acquire the easements of air or light by express grant, or its equivalent.^' With respect, however, to the acquisition of these rights by pre- scription, the general tendency in the United States is against this mode of acquiring the right to light or air over vacant lots on the ground that it would contravene public policy, lead to overburden- ing the land, and interfere with the upbuilding of the country;^" but in England such acquisition by prescription is recognized as creating an easement, this being known, when applied to light, as the doctrine of "ancient lights." ^^ The same distinction between the American and English views exists in the case of the easements of light and air acquired by im- plied grant or reservation upon the severance of quasi dominant and quasi servient tenements. ^^ While there is some question as to whether there can exist such an easement as that of mere prospect or view, because of the in- definiteness and uncertainty of what constitutes a good prospect, and because it is matter of delight only (as the older books express it) and not of necessity,^^ it is probable that, where the right to the continued enjoyment of a fine prospect has been expressly granted over a vacant lot, the erection of a building thereon or other ob- struction thereto would be actionable. § 119. 6. Drainage of Surface Water. We have considered elsewhere the rules applicable to rights in water flowing in natu- ral channels or water courses, which are not strictly easements, but rights to a corporeal substance.-'' But the right of one proprietor to have the surface water (col- 654; Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221; People v. Detroit White Lead Works. 82 Mich. 471, 46 N. Vv". 735, 9 L. R. A. 722; Sullivan V. Royer, 72 Cal. 248, 13 Pac. 655, 1 Am. St. Rep. 51; Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609, 43 Am. Rep. 728 ; Francis v. SchoeUkopf, 53 N. Y. 1.j2. isChastey v. Ackland, [1895] 2 Ch. 389, [1897] App. Cas. 1.55; Brooks v. Reynolds, 106 Mass. 33^ Story v. Odin, 12 Mass. 157, 7 Am. Dec. 46 ; Lat- timer v. Livermore^2 N. Y. 174; Weigmann v. Jones, 163 Pa. 330, 30 Atl. 198 ; Keating v. Springer. 146 111. 481, 34 N. E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175 ; Turner v. Thompson, 58 Ga. 268, 24 Am. Rep. 297. 20 3 Miu. Insts. 24, 25; Tunstall v. Christian, 80 Va. 4, 56 Am. Rep. 581; Morrison v. JNlarquardt, 24 Iowa, 35, 92 Am. i)ec. 451 ; Story v. Odin, 12 Mass. 157, 7 Am. Dec. 50, note ; Parker v. ff(x>fe, 19 Wend. (N. Y.) 309. 213 Min. Insts. 21; Aldred's Case, 9 Co. 38, note (B) ; Palmer v. Fletcher, 1 Lev. 122 ; Rosewell v. Pryor,- 1 Ld. Raym. 713, 2 Salk. 459 ; Campbell v. Wilson, 3 East, 294; Daniel v. North, 11 East, 372; Wood v. Veal, 5 B. & Aid. 4.-)4. = 2 Ante, § 97. 23 3 Min. Insts. 23; Aldred's Case, 4 Co. 58b. 24Ante. § 50 et sea. (108) Oh. 4] DRAINAGE OF SURFACE WATER. § 119 lecting from rain, snow and the like, and not flowing in defined channels) drain from his land upon the lower land of an adjacent proprietor, or the right of the lower proprietor to obstruct such drainage and thus throw such water back upon the lands of the first owner, are, instances of true easements, and are appropriately to be discussed here. The surface water, collected from rains or snow in small pools, or rising in variable quantities out of marshy and boggy ground, having no defined course and flowing in no natural channel, the supply being merely casual and occasional, can generally be of little use to him upon whose land it collects, and the question usu- ally is not how far he may use it to the detriment of a lower pro- prietor, but how far he may get rid of it, though to the injury of a lower proprietor. It is to be noted in the first place that since the supply is not constant, nor wont to flow in a defined channel, a lower proprietor is not entitled ex jure naturae to the watdfr, as in the case of water flowing in a natural water course, and he has no right to complain if it is cut off altogether before reaching some defined natural chan- nel, though it might have found its way, if undiverted and not meanwhile evaporated or absorbed, into some brook, and so have contributed to work his mill, or otherwise to benefit him.^^ But litigation as to surface water usually arises with respect to the right of one proprietor to rid himself thereof by permitting it in natural course, or by inducing it by artificial means, to flow upon neighboring land; or, conversely, with respect to the neighbor's right to obstruct its flow and throw it back upon the land of the first proprietor. There are three cases that may arise here. (1) If the flow, such as it is, flows in a natural and defined chan- nel along which the water has been wont to drain from the land above, the authorities seem agreed that the lower proprietor has no right to obstruct the flow, in the absence of grant or prescription.^" (2) If the flow is aided by ditches or other artificial means, so as to discharge the surface water in volume upon the lower lands, ii seems equally well settled that the upper proprietor has exceed- 2 5 Cliasemore t. Richards, 7 H. L. Cas. 349; Rawston v. Taylor, 11 Exch. 3S2; Broadbent v. Ramsbotham, 11 Exeli. 614, 61 .'i; Jack v. Martin, 12 Wend. (X. Y.) 329 ; ParlvS v. City of Newburyport, 10 Gray (llass.) 28 ; Ciir- tiss V. Ayrault, 47 N. T. 73; Case v. Hoffman, 100 Wis. 314, 72 X. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728; Wheatley v. Baugli, 2.j Pa. 528, 64 Am. Dec. 721. 26 Martin v. Jett, 12 La. 501, 32 Am. Dec. 120; Earl v. De Hart, 12 N. J. E 508 ; Kimball v. Second Congregational Parish, 24 Pick. (Mass.) 347 ; Wheaton V. Gates, 18 N. Y. 395 ; Cooper v. Trustees of First Presbyterian Church, 32: Barb. (N. Y.) 222; Kincaid's Appeal, 66 Pa. 411, 422, 5 Am. Rep. 377; Kel- logg V. Dickinson, 18 Vt. 266. 40 Church v. Wells, 24 Pa. 250; Kincaid's Appeal, 66 Pa. 412, 5 Am. Rep_ 377 ; Craig v. First Presbyterian Church. 88 Pa. 51, 32 Am. Rep. 417 ; Kim- ball V. Second Congregational Parish, 24 Pick. (Mass.) 347; In re Proprietors, of New South Meeting House, 13 Allen (Mass.) 497, 517; Daniel v. Wood, 1 Pick. (Mass.) 102, 11 Am. Dec. 151. Upon the same principles the owners, of tombs and vaults in churches possess only the exclusive right to bury their dead there, and have no title to the land or church. They cannot pre- vent a sale, demolition, or rebuilding of the church by the proper authorities-- of the congregation, nor the removal of the remains from the tombs wheiL such removal Is in other respects conducted according to law. Sohier t_ (112) Ch. 4] PEWS CEMETERY EIGHTS. § 121 Upon analogous principles, where one purchases a burial lot in a cemetery, he does not buy the land itself, but only the right to use the lot for the purposes for which the land has been dedicated ; no formal deed being necessary to confer this easement, which is to be enjoj'ed in the mode permitted and agreed upon by the rightful own- er, if not unreasonable nor contrary to the terms of the original dedi- cation.*^ Every purchaser of a burial lot is affected with notice of the limitations placed upon his holdings by law and by the charter and by-laws of the company holding the title to the land, and he- purchases his lot with the full knowledge and implied understanding: that a change of circumstances may in time demand a change of location. Hence the soil may be sold in fee, discharged of all ease- ments, if only the remains resting there be properly and lawfully removed. ^^ TrluitT Church, 109 Mass. 1. See Buffalo City Cemetery v. City of Buffalo, 4(j X. Y. 50.5. ii Itoanoke Cemetery Co. v. Goodwin, 101 Va. 60.j. 44 S. E. 769: Mumford y. Whitiie.v, 1.". Wend. (N. Y.) 380, 30 Am. Dec. CO ; Wolfe v. Frost, 4 Sandf. Ch. (X. Y.) 72 ; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 505 ; Kin- caid's Appeal, 66 Pa. 420, 5 Am. Rep. 377; Eayner v. Xugent, 60 Md. 515; Page V. Symonds, 63 X. H. 17, 56 Am. Rep. 481 ; Silver^vood v. Latrobe, 68 Md. 620, 13 Atl. 161 ; Rose Hill Cemetery Co. v. Hopkinson, 114 111. 209, 29 X. E. 685. 42 Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769 ; Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506, 515, note ; Craig v. First Presbyterian Church, 88 Pa. 42, 32 Am. Rep. 417; Richards v. Northwest Protestant Dutch Church, 32 Barb. (N. Y.) 42; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Partridge v. First Independent Church, 39 Md. 631; Price v. Methodist Episcopal Church, 4 Ohio, 515. Minor & W.Real Peop. — 8 ^ (113) CHAPTER V, LICENSES. § 122. Nature of a License. 123. Licenses Executory, Executed and Coupled with an Interest. 124. Creation of Licenses. 125. Assignability of Licenses. 120. Revocation of Licenses. 127. Same — Irrevocable Licenses. § 122. Nature of a License. Licenses, while not incorporeal hereditaments nor easements, nor, indeed, interests in land at all, are in many respects similar to easements and under certain condi- tions may become such. A license is an authority conferred by the owner of land upon another to do an act or a series of acts upon the former's land, the licensee possessing no estate or interest in the land itself, or else an authority conferred upon the owner of servient land by one entitled to an easement therein to do an act or series of acts upon the servient land in obstruction of the easement,^ including by im- plication an authority, in either case, to do whatever additional thing may be necessary to the accomplishment of the authorized act or acts.^ Thus, one may have a license to hunt or fish upon another's land, or to flood it, or to cut timber or gather fruit thereon, or to go upon another's land upon purchase of a ticket to witness a game, .show or other spectacle, etc.^ So a license of the second class 1 2 Min. lusts. 28 ; 1 Washburn, Real Prop. 661 ; Wood v. Leadbitter, 13 M. & W. 837 ; Hawlins v. Shippam, 5 B. & Or. 221 ; Liggins v. Inge, 7 Bing. GS2 ; Cooit v. Stearns, 11 Muss. 533 ; Wiseman v. Luclisinger, 84 N. Y. 31, 38 Am. Rep. 479; Foster v. Browning, 4 R. I. 47, 67 Am. Dec. 505; .Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80 ; Addison v. Hack, 2 Gill (Md.) 221, 41 Am. Dec. 421; Vogler v. Geiss, 51 Md. 407; Stein v. Dahm, 96 Ala. 481, 11 South. 597 ; Peck v. Loyd, 38 Conn. 566 ; Morse v. Copeland, 2 Gray (Mass.) 302 ; Boston & P. R. Corp. v. Doherty, 154 Mass. 314, 28 N. E. 277 ; Cartwright v. Maplesden, 53 N. Y. 622. ' If no time be fixed wherein the license is to be exercised, it must in general be exercised within a reasonable time. Hill v. Hill, 113 Mass. 103, 18 Am. Rep. 455. 2 Patrick v. Colerick, 3 M. & W. 483 ; Wood v. Manley, 11 Ad. & E. 84 ; Giles V. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; Heath v. Randall, 4 Gush. (Mass.) 195; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Long V. Buchanan, 27 Md. 502, 92 Am. Dec. 653; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152 ; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19 ; White V. King, 87 Mich. 107, 49 N. W. 518. 3 License to flood land. Woodward v. Seely, 11 111. 157, 50 Am. Dec. 445 ; to erect buildings, Crosdale v. Lanigan, 129 N. Y. 604, 29 N. E. 824, 26 Am. St. Rep. 551 ; to cut timber, Callen v. Hllty, 14 Pa. 286 ; to witness spectacle, (114) Ch. 5] CLASSES OF LICENSES. § 123 arises where one entitled to an easement of light over another's land, or entitled to flood it, gives authority to the servient owner to erect a structure on his own land which will obstruct the light or the flow.* And instances of implied licenses may be seen where upon a license to hunt, the hunter has an implied license to remove the game killed, or in the right to enter and remove trees which one has been authorized to cut down.° The underlying theory of a license is in general (subject to quali- fications to be noted later) that it confers a mere authority or per- mission, which is a matter of personal trust and confidence, and does not create any interest or estate in the land, like an easement. Hence, licenses are in general freely revocable by the licensor," are not usually transferable or assignable,'' and are not subject to the requirements of the statute of frauds as to the formalities of their creation.* It is scarcely necessary to add that a license to do a particular act involves the implied condition that it should be done with due care and skill, and does not excuse the licensee from responsibility for damage to the licensor not contemplated by the parties, which is the result of the performance of the licensed acts in an unskillful or negligent manner.' § 123. Licenses Executory, Executed and Coupled with an In- terest. Licenses may be said to be executory, when the acts au- thorized thereby are yet to be performed; and executed, when the acts have already been performed. A license is coupled with an interest, when, accompanying a grant of an easement or profit a prendre, or other right to enter upon land for a particular purpose, or a grant of property upon such land, there is expressed or implied an authority or permis- sion to act upon the land in a manner necessary for the complete operation of the grant, or complete enjoyment of the thing granted. etc., Wood V. Leadbitter, 13 M. & W. 838 ; McCrea v. Marsh, 12 Gray (Mass.) 211, 71 Am. Dec. 745, 14 Harv. L. Rev. 455 ; to pass over land, Forbes v. Balenseifer, 74 111. 183 ; to use lodgings, no exclusive right to the premises being given. White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28 ; Wilson v. Martin, 1 Denio (N. T.) 602. i Winter v. Brockwell, 8 East, 308 ; White v. Manhattan Ry. Co., 139 N. Y. 19, 34 N. B. 887 ; Morse v. Copeland, 2 Gray (Mass.) 302. 5 Thomas v. Sorrell, Vaughan, 330, 351 ; Wood v. Leadbitter, 13 M. & W. 838 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80 ; Metcalf v. Hart, 3 Wyo. 513, 27 Pac. 900, 31 Pac. 407, 31 Am. St. Rep. 122 ; Long v. Buchanan, 27 Md. 502, 92 Am. Dec. 653 ; Miller v. State, 39 Ind. 267. 6 Post, §§ 126, 127. 7 Post, § 125. 8 Post, § 124. » Selden v. Delaware & H. Canal Co., 29 N. Y. 640. (115) § 123 CLASSES OF LICENSES. [Ch. 5 Thus, where one is given the right, by way of profit a prendre, to enter upon another's land and cut timber, there is implied, if not expressed, a license to remove the timber when cut; and this is a license coupled with an interest or grant, since without the authority to remove the felled timber the grant of the timber would be worthless.^" Upon the same principle, if one places his chattels upon the land of another by the latter's permission, or purchases chattels already upon the vendor's land, he has an implied license in each case to remove the chattels from the land, and such license is coupled with an interest. ^^ These distinctions are important in connection with the assign- ability and revocability of licenses, considered a little later. ^^ § 124. Creation of Licenses. A license, not being an interest in land, does. not come within the purview of the statutes of frauds in their provisions touching the conveyance of or contract to convey lands and interests therein. Hence a license may be created oral- ly, in writing or under seal, or it may be implied, no particular formalities being necessary.^' § 125. Assignability of Licenses. A license, being a mere per- sonal trust and privilege, cannot ordinarily be assigned to another.^'' But this general principle is subject to two qualifications, as follows: (1) The servants or agents of the licensee may perform the au- thorized acts, whenever this was within the contemplation of the 10 Giles V. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; United Society V. Brooks, 145 Mass. 410, 14 N. 'B. 622; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19 ; White v. King, 87 Mich. 107, 49 N. W. 518 ; Bruley v. Garvin, 105 Wis. 625, 81 N. W. 1038, 4S L. R. A. 839 ; Cool v. Peters Box & Lumber Co., 87 Ind. 531. 11 Patrick v. Colerick, 3 M. & W. 483; Wood v. Manley, 11 Ad. & E. 34; Giles V. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; Heath v. Randall, 4 Cush. (Mass.) 195; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. SO; Long V. Buchanan, 27 Md. 502, 92 Am. Dec. 653; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152. 12 Post, §§ 125, 126, 127. 13 Fletcher v. Evans, 340 Mass. 241, 2 N. E. 837; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152 ; Noftsger v. Barkdoll, 148 Ind. 531, 47 N. E. 960 ; Met- calf V. Hart, 3 Wyo. 513, 27 Pac. 900, 31 Pac. 407, 31 Am. St. Rep. 122; Occum Co. V. A. & W. Sprague Mfg. Co., 34 Conn. 529 ; Harmon v. Harmon, 61 Me. 222; Cutler v. Smith, 57 111. 252; Fischer v. Johnson, 106 Iowa, 181, 76 N. W. 658; Gowen v. Philadelphia Exchange Co., 5 Watts & S. (Pa.) 141, 40 Am. Dec. 489. See ante, § 122. i*Ackroyd v. Smith, 10 C. B. 188; Wickham v. Hawker, 7 M. & W. 63; Mendenhall v. Klinck, 51 N. Y. 246 ; Cowles v. Kidder, 24 N. H. 364, 57 Am. Dec. 287; Blaisdell v. Portsmouth, G. F, & C. R. R., 51 N. H. 483; Prince V. Case, 10 Conn. 375, 27 Am. Dec. 675; Dark v. Johnston. 55 Pa. 164, 93 Am. Dec. 732: Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484. (IIG) Ch. 5] REVOCATION OF LICENSES. § 126 parties. Thus, where the license is to do an act on another's land, the performance of which would reasonably require the employment and assistance of other persons, as to build a house, or cut timber, etc., the employment of such persons is not a breach of the license.^ ^ (2) If the Kcense is coupled with an interest it is assignable with, and as part of, the interest, so that if one has chattels upon the land of another with his consent, since he has a license to remove them coupled with his interest in the chattels, that license will pass along with the chattels, should he assign the latter to a third person. ^° § 126. Revocation of Licenses. For the same reason as that given in the preceding section, viz., that a license is a mere personal trust or privilege, the general rule of law is that licenses are freely revocable at the option of the licensor, even though in doing so he violates the terms of a contract, and is liable in damages therefor ; and the licensee becomes a trespasser and is liable as such if he en- ters upon the land after the revocation of his license.^' Thus, where A. and B. mutually gave each other a license to do acts upon the other's land, each was held to be a revocable license, though one had expended money on the other's land, relying upon such license. ^^ By the weight of authority, as well as upon principle, the licensee cannot continue to exercise an oral license after it has been revoked (though, if it is based upon contract, he may sue for the breach thereof), even though he has been at considerable expense in prepar- ing to exercise, or in the actual enjoyment of, the license.'-^ Thus, isWickham v. Hawker, 7 M. & W. 63 ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80. 16 Bassett V. Maynard, Cro. (Eliz.) 819; Wickham v. Hawker, 7 M. & W. 63 ; Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776 ; Sawyer v. Wilson, 61 Me. 529 ; Wiseman v. Eastman, 21 Wash. 163, 57 Pac. 398. 17 1 Washburn, Real Prop. 663 ; Wood v. Leadbitter, 13 M. & W. 845 ; Fentiman v. Smith, 4 East, 107 ; Barksdale v. Hairston, 81 Va. 764 ; De Haro V. United States, 5 Wall. 599, 18 L. Ed. 681; Hodgkins v. Farrington, 1.50 Mass. 19, 22 N. E. 73, 5 L. R. A. 209, 15 Am. St. Rep. 168 ; McCrea v. Marsh, 12 Gray (Mass.) 213, 71 Am. Dec. 745; Wiseman v.' Lucksinger, 84 N. Y. 31. 38 Am. Rep. 479 ; Sterling v. Warden, 51 N. h. 217, 12 Am. Rep. 80 : Huff V. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843, 12 Am. St. Rep. 328 ; Wood v. Michigan Air Line R. Co., 90 Mich. 334, 51 N. W. 263; Seidensparger v. Spear, 17 Me. 123, 35 Am. Dec. 234 ; Johnson v. Skillman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192. 18 Dodge V. McClintock, 47 N. H. 383. The fact that a consideration was paid for the license is immaterial. Wood v. Leadbitter, 13 JI. & W. 838 ; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479 ; Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732; Kivett v. McKeithan, 90 N. C. 106. But see Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843, 12 Am. St. Rep. 328. 18 1 Washburn, Real Prop. 666; Kerrison t. Smith, [1897] 2 Q. B. 445; (117) § 126 EEVOCATION OP LICENSES. [Ch. 5 where the licensee at some expense cut a drain in the land of the licensor to bring water, enjoying the privilege for several years, after which the licensor revoked the license, it was held that the licensee was without a remedy.^" So, when the license was to build a house or a dam upon the land of another, the licensee has been held bound to remove it upon a revocation of the license, without right to claim compensation for the loss.^^ This conclusion is denied by some of the courts which seem dis- posed to hold that, by his acquiescence in the expenditure, the licen- sor is estopped to revoke the license, or at least should reimburse the licensee before revoking it, which is in effect to convert the li- cense into an easement or interest in the land itself, which if the license is oral would be in contravention of the statute of frauds. ^^ It seems, however, to be admitted that if the transaction be one which, if it were under seal, would create an easement, it being classed as a license merely because it is oral, upon a part perform- ance thereof by the licensee by the expenditure of money or other- wise, a court of equity may regard it as an equitable easement, and therefore irrevocable.^^ McCrea v. Marsh, 12 Gray (Mass.) 211, 71 Am. Dec. 745; Hodgkins v. Far- rington, 150 Mass. 19, 22 N. E. 73, 5 L. li. A. 209, 15 Am. St. Rep. 16S; Crosdale v. Lanigan, 129 N. Y. 604, 29 N. B. 824, 26 Am. St. Rep. .551; Hous- ton V. Laffee, 4U N. H. 505; Lawrence v. Springer, 49 N. J. Eq. 289, 24 Atl. 933, 31 Am. St. Rep. 702; Richmond & D. R. Co. v. Durham & N. R. Co., 104 N. C. 658, 10 S. E. GoO ; Nowlin Lumber Co. v. Wilson, 119 Mich. 406, 78 N. W. 338 ; Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030 ; Jlinneapolis Mill Co. V. Minneapolis & St, L. Ry. Co., 51 Minn. 304, 53 N. W. 639 ; Pitz- man v. Boyce, 111 Mo. 387, 19 S. W. 1104, 33 Am. St. Rep. 537. 2 Hawlins v. Shippam, 5 B. & Cr. 221 ; Cocker v. Cowper, 1 Cr., M. & R. 418 ; Foot v. Xew Haven & N. Co., 23 Conn. 223 ; Sampson v. Burnside, 13 N. H. 264. 21 Bachelder v. Wakefield, 8 Cush. (Mass.) 252; Smith v. Goulding, Cush. 155 ; Stevens v. Stevens, 11 Mete. (Mass.) 251, 45 Am. Dee. 203 ; Jack- son V. Babcock, 4 Johns. (N. Y.) 418 ; Mumford v. Whitney, 15 Wend. (N. Y.) 380, 30 Am. Dec. 60; Benedict v. Benedict, 5 Day (Conn.) 464; Addison V. Hack, 2 Gill (Md.) 221, 41 Am. Dec. 421; Prince v. Case, 10 Conn. 378, 27 Am. Dec. 675 ; Trammell v. Trammell, 11 Rich. Law (S. C.) 474 ; Cowles v. Kidder, 24 N. H. 3(M. 57 Am. Dec. 287. 22 The following decisions hold a license irrevocable in such a case: Rhodes v. Otis, 33 Ala. 578, 73 Am. Dee. 439 ; Ferguson v. Spencer, 127 Ind. 66, 25 N. E. 1035; Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am. Dec. 497; Drew v. Peer, 93 Pa. 234; Cook w Pridgen, 45 Ga. 331, 12 Am. Rep. 582 ; Wynn v. Garland, 19 Ark. 23. 68 Am. Dec. 190 ; Wilson v. Chalfant. 15 Ohio, 248, 45 Am. Dec. 574; Flickinger v. Shaw, 87 Cal. 126, 25 Pac. 268, 11 L. R. A. 134. 22 Am. St. Rep. 2:U ; Metcalf v. Hart, 3 Wvo. 513, 27 Pac. 900, 31 Pac. 407, 31 Am. St. Rep. 122. 23 1 Washburn, Real Prop. 669; Devonshire v. Eglin, 14 Bear. 530; JIc- Manus v. Cooke, 35 Ch. Div. 681 ; Wiseman v. Lucksinger, 84 X. Y. 31, 38 (118) Ch. 5] lERBVOCABLB LICENSES. § 127 It is to be observed that if the license has been executed by the performance of the acts authorized, or some of them, a subsequent revocation of the Hcense will not make the licensee responsible for the acts already done, nor for the consequences thereof, even though such consequences continue to cause damage after the revocation, unless the licensee has had reasonable time and opportunity to avert them.''* As to the modes of revocation, it is enough to say that the license may be revoked either by an instrument under seal or in writing, or orally, or by implication from the acts and conduct of the licensor, the essential question being, has the licensor intended to revoke.^ ^ Thus such intention may be implied from the licensor's transfer of the land to a stranger; -" and the death of the licensor revokes the license (unless it be coupled with an interest), since the license is personal on both sides, and the licensee cannot plead the license of the ancestor for a trespass upon the land of the licensor's heir or devisee.^' § 127. Same — Irrevocable Licenses. There are two classes of cases wherein it seems to be agreed that licenses may become ir- revocable. They are as follows : (1) If the license is to do an act upon the licensee's own land, in obstruction of an easement therein, if the act be permanent, such as / Am. Rep. 479 ; St. Louis Nat. Stock Yards Co. v. Wiggins Ferry Co., 112 111. 384, 54 Am. Rep. 243; Jobnson v. Sklllman, 29 Minn. 95, 12 N. W. 149, 43 Am. Rep. 192. 2 i Smith V. Goulding, 6 Cush. (Mass.) 155; Stevens v. Stevens, 11 Mete. (Mass.) 251, 45 Am. Dec. 203 ; Pratt v. Ogden, 34 N. T. 20 ; Selden v. Dela- ware & H. Canal Co., 29 N. X. G39 ; Foot v. New Haven & N. Co., 23 Conn. 214. 2 5 Wood V. Leadbitter, 13 JI. & W. 83S; Hodgkins v. Farrington, 150 Mass. 19, 22 N. E. 73, 5 L. R. A. 209, 15 Am. St Rep. 168 ; Carleton v. Eed- ington, 21 N. H. 291, 311; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Pitzman v. Boyee, 111 Mo. 387, 19 S. W. 1104, 33 Am. St. Rep. 536 ; Flukei- V. Georgia Railroad & Banking Co., 81 Ga. 461, S S. E. 529, 2 L. R. A. 843, 12 Am. St. Rep. 328; Forbes v. Balenselfer, 74 111. 183; Fischer v. Johnson, 106 Iowa, 181, 76 N. W. 058. 2« Wallis V. Harrison, 4 ^1. & W. 538; Drake v. Wells, 11 Allen (Mass.) 141 ; VoUmer's Appeal, 61 Pa. 118 ; Seidensparger v. Spear, 17 Jle. 123, 35 Am. Dec. 234 ; Houx v. Seat, 26 Mo. 178, 72 Am. Dec. 202 ; Minneapolis W. R. Co. V. Minneapolis & St. L. Ry. Co., 58 Minn. 128, 59 N. W. 983 ; Jen- kins V. Dykes, 19 Fla. 148, 45 Am. Rep. 19. 2TDe Haro v. United States, 5 Wall. 599, 18 L. Ed. 681; Hodgkins v. Farrington, 150 JIass. 19, 22 N. E. 73, 5 L. R. A. 209, 15 Am. St. Rep. 168; Bridges V. Purcell, 18 N. C. 492; East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248; Lambe v. Manning, 171 111. 012, 49 N. E. 509; post, § 127. See 14 Harv. Law Rev. 73; Sulphur Mines Co. v. Thompson, 03 Va. 293, 25 S. E. 232. (119) § 127 IKREVOCABLE LICENSES. [Ch. 5 the erection of a building and it is actually performed, the license cannot thereafter be revoked. ^^ (3) The second instance of irrevocable licenses is to be foimd in the case of a license coupled with an interest. Thus when one has sold chattels situated upon his own land, the sale implies a licence to the purchaser to come upon the land to take and carry the chat- tels away, which the vendor cannot revoke until at least a reason- able opportunity has been offered to the purchaser to take them away.-" So, if one gives another an oral license to cut trees on his land at an agreed price, to be carried away, after the trees have been cut the vendor cannot revoke the license to remove such trees, since the licensee has acquired an interest in the trees by the fact of sev- erance.^" Whether or not, before severance, the license to remove the trees becomes irrevocable depends upon whether the oral trans- action between the parties passes title to the growing trees. In most jurisdictions it does not.^^ Under this view, until severance the landowner may revoke the license, and a conveyance of the land to a third person would constitute such a revocation, as soon as known to the licensee, who would then become a trespasser should he after- wards cut the trees. ^^ So, also, if the license be coupled with an interest, the death of the licensor will not operate a revocation thereof, though it is otherwise if the license be not coupled with an interest.'^ 28Hawlins v. Shippam, 5 B. & Cr. 221; Winter v. Brockwell, 8 East, 308; Morse v. Copeland, 2 Gray (Mass.) 302; Boston & P. R. Co. v. Doberty, 154 Mass. 314, 28 N. E. 277 ; Cartwrlght v. Jlaplesden, 53 N. Y. 622 ; Vogler v. Geiss, 51 Md. 407 ; Addison v. Haclc, 2 Gill (Md.) 221, 41 Am. Dec. 421 ; Stein V. Dahm, 96 Ala. 481, 11 South. 597. See Peck v. Loyd, 88 Conn. 566. 2 9 Wood V. Manley, 11 Ad. & E. 34; Wood v. Leadbitter, 13 M. & W. 856; Heatli V. Randall, 4 Cush. (Mass.) 195; Nettleton v. Sikes, 8 Mete. (Mass.) 34; Giles V. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152 ; Long v. Bucbanan, 27 Md. 502, 92 Am. Dec. 653. And so if one by the consent of a landowner places his chattels on another's land. Patrick v. Colerick, 3 M. c& W. 483 ; Giles v. Simonds, supra ; Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80. 3 United Society v. Brooks, 145 Mass. 410, 14 N. E. 622; Giles v. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373 ; Bruley v. Garvin, 105 Wis. 625, 81 X. W. 1038, 48 Jj. R. A. 839 ; White v. King, 87 Jlich. 107, 49 N. W. 518 ; Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19. 31 Ante, § 40. 32 RofCey V. Henderson, 17 Q. B. 586 ; Giles v. Simonds, 15 Gray (Mass.) 441, 77 Am. Dee. 373 ; Drake v. Wells, 11 Allen (JIass.) 143, 144 ; Town v. Hazen, 51 N. H. 596 ; Wescott v. Delano, 20 Wis. 516, 517. 33Ante, § 126. See Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232. (120) DIVISION III. THE VARIOUS ESTATES OR INTERESTS IN REAL PROPERTY. § 128. Preliminary Outline of Discussion. The term "estate" in real property law is to be carefully distinguished on the one side from corporeal property itself,'* and on the other from the "title" by which property is acquired and held; the latter indicating the evidence of ownership (as where one acquires land by deed or will) or the channel through which it is acquired, as where one obtains property by prescription, descent, occupancy, accretion, etc.'' The legal signification of the term "estate" (status) is the relation in which one stands with regard to his property, or the interest he has therein.'^ These relations or interests may be of various sorts and degrees, several of which may coexist in the same land in the hands of several persons. Some illustrations may make this clearer : (1) A., owning land in fee simple, leases it to B. for the latter's life or for a term of years; B. subleasing it to C. for a lesser period still.''' Here we have three persons, each having a different estate or interest (in respect of quantity or duration) in the same land at the same time; A.'s interest or estate being a fee simple, B.'s being an estate for life or for years, as the case may be, and C.'s being an estate for a smaller number of years than B.'s. It is fur- ther to be observed (in respect of the time of enjoyment of the pos- session of the land) that C. alone has the present possession of t)ae land during his term, but B. and A. nevertheless still have the estate for years or life estate and the fee simple, which each had before, subject to the interests that have been carved out of them. Until, however, the land itself comes into the actual possession of B. and A., respectively, their estates are future estates only, while C. has a present estate. The future estates of B. and A. are known as "re- versions," being what is left in them after granting out the lesser estates. (2) If G. gives land to C. for ten years, the land then to go to B. 31 It is sometimes used popularly, but incorrectly, to Indicate the corporeal property itself, as where one, viewing a farm, pronounces it to be "a fine es- tate." 3 5 The various titles by which one acquires real property are considered hereafter in Division IV of this work. See post, § 784 et seq. 38 2 Min. Insts. 79. 3 7 In tUs case B.'s "estate" is for life or for years, as the case may be; his "title" is under the lease by A. (121) § 128 ESTATES IN LAND. for life, and after B.'s death to go to A. in fee simple, C. has present estate for years (ten years) in possession ; B. an estate for life, the enjoyment of which by actual possession is in futuro, though the ownership thereof is in prassenti ; and A. an estate in fee simple, future as to enjoyment, though present as to ownership, like B.'s estate. The future estates of B. and A., respectively, are termed "remainders," being what is left of G.'s entire grant, after the pre- ceding estate to C. has been disposed of. (3) Again, land may be given to A. in fee simple, but in trust for B. in fee simple. Here both A. and B. have fee-simple estates (in respect of the quantity of estate), but in respect of quality their es- tates are widely different. A. is a trustee, and has the legal estate (recognized by the courts of law), but no beneficial interest, which is entirely vested (under the direction of the courts of equity) in B., the cestui que trust or equitable owner. (4) Land may be given to A. in fee simple, but upon a condition,, the noncompliance with which may cause a forfeiture of the estate ; or A. may place a lien upon the land held by him in fee simple; either of which circumstances will qualify A.'s otherwise absolute fee simple estate. (5) Once more. A., B., and C, instead of possessing successive interests at the same time in the same tract of land, as in the first two examples above given, may have simultaneous rights to the possession of the same tract, as where land is conveyed to A., B., and C. as joint tenants or tenants in common thereof, etc. In the first and second examples above mentioned, the estates or interests of the parties are viewed from the standpoints of the quantity or duration of the estate, and of the time of its enjoyment, whether in prassenti or in futuro ; in the third and fourth examples, from the standpoint of the quality or the qualifications which may be attached to an interest in land; and in the fifth, from the stand- point of the community of interests which may be created therein. These four viewpoints supply the four great heads under which the whole subject of Estates in Land may be appropriately discuss- ed. Hence this section of the work will be divided into four parts, as follows : Part L The various estates in land, as respects their quantity or duration. Part n. The various estates in land, as respects the quality or the qualifications of interest. Part IIL The various estates in land, as respects the time of their enjoyment (present or future). Part IV. The various estates in land, as respects the community of interests therein. (122) PART I. The Various Estates in Land, as Respects Their Quantity OR Duration. CHAPTER VI. THE SEISIN. § 120. The Freehold. ■ 130. Seisin. 131. Various Sorts of Seisin. 132. "Livery of Seisin" and "Grant." 133. Origin of Livery of Seisin. 134. Nature of Livery of Seisin. 135. Disseisin. 136. Abeyance of the Freehold. 137. Classification of Estates of Freehold and Estates Less than Freehold. § 129. The Freehold. Under the feudal system the dignity and influence of the feudatory depended in part upon the nature of the services (free or base) which might be demanded of him and which gave character to the tenure by which he held the land.^ But it also depended in no small measure upon the quantity of interest he was to enjoy in the land. No interest in land was anciently regarded as worthy the accept- ance of a freeman and a soldier unless it were an estate which might at least last for life, and was not held at the will of another. If the interest were of this kind it was and still is known as a free- hold estate (liberum tenementum), which may be defined as an es- tate of indeterminate duration, other than an estate at will or by sufferance.^ By the very terms of this definition it does not include an estate held merely at the will of another,' nor estates by sufferance ; * nor does it comprehend estates for years or "chattels real," since the utmost duration of such an estate is definitely fixed and not indeter- minate. All these are estates "less than freehold." ° But it includes the fee-simple estate, since it lasts forever, and all other estates of inheritance, that is, estates capable of being inherited by the heirs or heirs of the body of the owner upon his death." It lAnte, §§ 4, 6. 2 2 Jlin. Insts. 80; 1 Washburn, Real Prop. 29; 1 Th. Co. Lit. 621, note (C). 3 For estates at will, see post, § 335 et seq. * For estates by sufferance, see post, § 343 et seq. 6 Post, §§ 137, 317. « Post, §§ 137, 138, 157, 162, 165, et sei. (123) § 129 THE FREEHOLD. [Ch. 6 includes also an estate for the life of the tenant, or for the life of an- other, or any estate of uncertain duration which may last during the tenant's life, though liable to be terminated sooner by the happening of some contingency.^ Thus, not only is a fee simple given to A. and his heirs a freehold estate, but so, also, is an estate given to A. for his life, or to A. for the life of B., or to A. during coverture or durante viduitate (during widowhood), or to A. as long as he resides abroad or until he re- turns from Europe. All these are estates of indeterminate duration, and are therefore freehold estates. So, also, a lease for as many years as B. shall live confers a freehold estate.* But if the estate be of defined duration, it is not a freehold, though it may possibly endure during the tenant's entire life, or even though it may by its terms be terminated by the tenant's death. Thus, an estate to A. for five hundred years, though it must necessarily out- last the tenant's life, is not a freehold, but a term for years or chattel real, for it is of defined duration. And a lease "for one hundred years if A. shall so long live" is also an estate of defined duration, and therefore not a freehold but a term for years, though it may, and probably will„ terminate with A.'s death before the lapse of the hundred years."" Furthermore it is to be observed that a freehold estate can never be carved out of a chattel interest or out of an estate of defined dura- tion (which is alwa}rs, in the eye of the law, less than a freehold) for the obvious reason that the less cannot contain the greater. Hence, if A. has an estate for years, though it be for a thousand years, and gives it to B. for life, or if he gives B. for his life a diamond ring or a certificate of stock or a bond, B.'s interest in each of these cases is a life interest in personal property and is itself personalty, and not a freehold estate (which is always real property).^" The common law recognized no interest in land to be "real prop- erty" unless it were a freehold, and no one as the actual owner of land unless he were a tenant of the freehold. He alone was "the tenant" under the feudal system. He alone could be called upon to render military service, and he alone could sue and be sued in a real action in respect to the title. ^^ But with the abolition of the feudal system and its incidents, the term "freehold" has come to signify merely the quantity of in- T 2 Mint. Insts. 100 ; 2 Bl. Com. 104, 121 ; 1 Washburn, Real Prop. 2&. 8 2 Mill. Insts. 100, 191. 9 2 Min. Insts. 191 ; 2 Bl. Com. 143 ; 1 Th. Co. Lit. 628, 632. 10 2 Min. Insts. 192. 11 2 Min. Insts. 83; 2 Bl. Com. 107, note (7) ; 3 Th. Co. Lit. 102, 103, note (G). (124) Ch. 6] . VARIOUS SOETS OP SEISIN. § 131 terest in the land, and has no reference to the quality or dignity of the possessor.^^ § 130. Seisin. The tenant of a freehold estate is said to be seised- thereof. The terms "seised" and "seisin" signify respectively "pos- sessed of a freehold" and "possession of a freehold." ^^ The doctrine of seisin plays so prominent a part in the law of real property, even to-day, that it becomes necessary to examine it more closely. Since the tenant of the freehold was looked to for the performance of the military and other services incident to the tenure, it followed upon grounds of public policy that there could be only one seisin at a time of a single tract of land. To have held otherwise would have been to divide the responsibilities, to render the title more or less uncertain, and materially to impair the efficiency of the feudal sys- tem. Hence, if land were granted to A. for life, remainder after A.'s death to B. and his heirs, while this would create a freehold estate lor life in A., and also a freehold estate of fee simple in B., only A. would have the seisin or "the freehold." The seisin or immediate possession of the freehold would not vest in B. until after A.'s death. On the other hand, if the conveyance'were "to A. for ten years, re- mainder to B. and his heirs," while A. would have the immediate possession of the land under his term for years, he would not have the seisin of the freehold, but B. would have the seisin, that is, the immediate freehold in possession. Thus it will be seen that while the owner of the inheritance may be seised also of the immediate freehold in possession, it frequently happens that the inheritance is in one, while the freehold or seisin is in another.'* § 131. Various Sorts of Seisin. At common law there were two sorts of seisin, seisin in deed (or in fact) and seisin in law. (1) Seisin in deed, as it related to corporeal property, signified at common law the pedis positio ; that is, the actual possession of the immediate freehold — not necessarily the actual possession of the land itself, for that might be in the possession of a tenant for years or at will.'^ If the property of which the seisin is alleged be incor- poreal, such as a profit a prendre, a rent or an easement, actual seisin of a freehold interest therein could only be shown by its actual exer- cise or use or the enjoyment of the fruits thereof, since the property 12 2 Bl. Com. 103. 13 1 Washburn, Real Prop. 34, 35. One is not "seised" of a term for years, nor of an estate at will, nor of a chattel. One is "possessed" of these. 1*2 Min. Insts. 83; 1 Washburn, Real Prop. 36, 37. iBAnte, § 128; 2 llln. Insts. 122, 123. (125) § 131 VARIOUS SOETS OF SEISIN. [Ch. 6 itself is a mere intangible right, not capable of visible and tangible possession.^" But even at common law it was not necessary, in order to a seisin of an entire freehold, that the freeholder should be in actual occupa- tion and enjoyment of every piece and parcel of the land, provided no one else was in adverse possession thereof. The actual occupa- tion of a portion, with seisin given in the name of the whole, sufficed to'vest the tenant with seisin of the whole, except as to so much as might be in the adverse possession of another. ^^ As to the part adversely held, the tenant would not have the seisin thereof, but merely a right of peaceable entry thereon or a right of action there- for, which is quite different from the seisin. ^^ After the enactment of the statute of uses and the statute of wills another sort of seisin in deed was recognized, namely a constructive seisin, as distinguished from the actual seisin required at common law for a seisin in deed or in fact. Such constructive seisin, how- ever, could only exist as to land not in the adverse possession of an- other; the grantee or devisee, in the latter case, acquiring only "a right of entry or of action," if he would take anything.^' (2) Seisin in law, on the other hand, arises in the single instance of an heir acquiring land or incorporeal property by descent from an ancestor, and is confined to the period between the ancestor's death and the time the heir actually enters upon the land himself or by his agent or tenant, or, in the case of incorporeal property, the period between the ancestor's death and the heir's actual use or enjoyment of the property. After his entry upon the land or his enjoyment of the incorporeal property, the seisin in law is at once converted into seisin in fact.^° . § 132. "Livery of Seisin" and "Grant." There were at common law various forms of conveyance appropriate to the transfer of dif- ferent sorts of estates or interests in land, or, under varying circum- stances, to the transfer of the same interest. Thus, a "feoffment" 18 Sheppard's Touchstone, 228; Co. Litt. 9a, 9b, 49a, 172a. I'Thus, if the lands were situated all in one manor though consisting of different parcels, entry upon one in the name of all sufficed as to all, since the same pares curiae were witnesses in respect to all the lands in that manor. But, if the parcels were in different manors, entry must have been made up- on each. And so in later times, if lands were situated in different counties, there was required an entry upon the lands in each county to give an actual seisin thereof. 2 Miu. Insts. 748 ; 1 Washburn, Real Prop. 32, 33, 35 ; 2 Bl. Com. 315, 316 ; 2 Th. Co. Lit. 335, 337. 18 2 Min. Insts. 12.-5, 141. 10 Post, § 213; 2 Min. Insts. 122, 123; 2 Bl. Com. 127; Leach v. Jay, 9 Ch Div. 42 ; Carpenter v. Garrett, 75 Va. 135. 20 2 Min. Insts. 124; 1 Th. Co. Lit. 559; 1 Washburn, Real Prop. 36. (126) Ch. 6] OEIGIN OF LIVERY OF SEISIN. § 133 was appropriate to the transfer of a fee-simple estate; ^^ a "gift" to the transfer or creation of a fee tail ; ^^ a "lease," to the creation of any estate less than that owned by the grantor; ^^ an "assignment," to the transfer of the entire interest of the grantor,^* etc. Eut in every case, if the interest transferred or created by the conveyance were a freehold interest in land, there was at common law an accompanying ceremony common to them all. That cere- mon}' was the formal "investiture" of the transferee with the seisin of the land — a solemn function taking place in the presence of the other tenants upon the manor (pares curiae) as witnesses. This ceremony consisted in the symbolical delivery of the possession of the land, through the delivery of a turf or twig or key or some other emblem of the land itself, and was called "livery of seisin" (that is, the delivery of the possession of the freehold). ^^ Hence lands, as to the conveyance of the immediate freehold, were said at common law to "lie in livery." Even at common law, however, if it were for any reason impos- sible to deliver the corporeal possession of the freehold, as where the property itself which was to be transferred was incorporeal, or was a remainder or reversion after a freehold estate in another ^^ (so that the remainderman or reversioner, not having the seisin, could not deliver it to his transferee), it was sufficient, and indeed neces- sary to substitute a deed (technically called a "grant") in lieu of the solemn ceremony of livery of seisin.^'' Such property was said to "lie in grant, and not in livery," since it passed by grant or deed alone, and not by livery of seisin. But the ceremony of actual livery of seisin was at best cumber- some and little adapted to the needs of a people advanced in the arts of civilization, so that it has long since been supplanted by the much more convenient constructive livery supplied by the statute of uses ^^ and the statute of wills. ^^ § 133. Origin of Livery of Seisin. The practice of requiring livery of seisin to accompany the creation or transfer of freehold estates seems to have originated in the feudal ceremony of inves- titure.'" 21 Post, § 965. 2 2 Post, § 966. 2 3 Post, § 967. 24 post, § 991. 25 2 Min. Insts. 745 et seg. 28 See Instances of such interests, ante, § 128. 2T 2 Min. Insts. 777, 778, 422; 2 Bl. Com. 316, 317; 2 Th. Co. Lit. 356. So a release by a reversion or remainderman to the tenant of the freehold must have been by deed, post, § 976 ; and so with a confirmation by way of enlarge- ment, post, §§ 989, 990. 2 8 Post, § 397 et seq., § 673. 2 9 Post, §§ 1003, 673. 3 Something similar to this was practised in the East in the earliest (127) § 133 ORIGIN OF LIVERY OF SEISIN. [Ch. 6 Investitures were doubtless designed at first to demonstrate in conquered countries the fact of the actual possession of the lord who assumed to donate the land, showing that he did not grant a bare litigious right (which the soldier tenant might be ill qualified to prosecute), but a peaceable and firm possession. And at a time when writing was little used a mere oral gift at a distance from the premises given was not likely to be either long or accurately retain- ed in the memory of bystanders little interested in the transaction.^^ That this ceremony should have been retained in the common law (the law of a wise and thoughtful, if unlettered, people) as a public and notorious act, whereby the country might take notice of and at- test the transfer of the estate, and all parties concerned be secured and confirmed in their rights touching the same, was a suggestion of prudence too natural to be overlooked. ^^ § 134. Nature of Livery of Seisin. "There be," sa}'s Lord Coke, "two kinds of livery of seisin, viz., a livery in deed and a livery in law. A livery in deed is where the feoffer, taking the ring of the door, or a turf or twig of the land, delivereth the same to the feoffee in name of seisin of the land;" and a "livery in law is where the feoffer sayeth to the feofifee, being in view of the house or land, 'I give you yonder land, to you and your heirs, and go enter into the same and take possession accordingly,' and the feofifee doth accord- ingly, in the life of the feoffer, enter." °^ If, in the latter case, through fear of his life or bodily harm the feoffee dare not enter, his "continual claim," made yearly in due form of law as near to the lands as he dare go, sufficed at common law without an entry. ^* § 135. Disseisin. Disseisin is the condition that results when the rightful owner of the freehold is deprived of his seisin by. anoth- er. He is then said to be "disseised," and is termed a "disseisee," while the perpetrator of the wrong is termed a "disseisor." A disseisin can be accomplished only by an actual occupation of at least a portion of the land, accompanied by an intention to oust the lawful occupant or to claim the land permanently as against the world. ^'^ A mere trespass upon the land, or the occupation thereof times. Witness Abraham's purchase of the cave of Machpelah, Gen. xxiii, 17, 18 ; and the imrchase by Boaz of the inheritance of Ruth's deceased h usband. Ruth, iv. 7-9. See 2 Min. lusts. 746. SI 2 Min. Tnsts. 746. 32 2 Min. Insts. 746; 2 Bl. Com. 311. 3 3 2 Th. Co. Lit. 335, 346; 2 Min. Insts. 748; 2 Bl. Com. 315. 34 2 Min. Insts. 749; 2 Bl. Com. 316. 36 2 Min. Insts. 578; Brock v. Bear, lOO Va. 565, 42 S. E. 307. In the case of incoriDoreal rights, since such rights are Incapable of actual corporeal pos- session, so, also, they are incapable of actual corporeal dispossession. A dis- (128) Gh. 6] DISSEISIN. § 135 temporarily only, without intent to hold it permanently, is not a disseisin ; nor is the intent to hold it permanently sufficient, if unac- companied by an occupation of part of the land at least. The two must concur.'* The effect of a disseisin is thus described by Mr. Preston : "It takes the seisin or estate from one man and places it in another. It is an ouster of the rightful owner of the seisin. It is the com- mencement of a new title, producing that change by which the estate is taken from the rightful owner and placed in the wrongdoer. Im- mediately after a disseisin, the person by whom the disseisin is com- ihitted has the seisin or estate, and the person on whom the injury is committed has merely the right or title of entry" or the right of action. "As soon as a disseisin is committed, the title consists of two divisions:, First, the title under the estate or seisin (though unlawful) ; and secondly, the title under the former ownership." ^' Hence, while the disseisin converts the disseisee's former seisin into a mere right of entry or of action, it gives the disseisor a new title, the basis of which is the bare possession, which is defeasible by the disseisee by the exercise, within the period prescribed by law, of his right to enter upon the land or to recover the possession in an action at law.^^ At common law, however, the title of the disseisor while in pos- session was good to the extent that he might pass a prima facie title to a purchaser by feoffment with livery of seisin, or by fine or com- mon recovery,^' which might be defeated by the disseisee only through a tedious and expensive action at law. These forms of con- veyance were regarded at common law as of such peculiar solemnity as to pass prima facie whatever estate they purported to pass, reduc- ing the disseisee to disprove in a court of law the validity of the purchaser's title and depriving him of the summary and more con- venient redress by way of peaceable entry. Hence these particular forms of conveyance were designated "tortious conveyances." *° So, also, at common law, if the disseisor died while in posses- sion, his heir took his ancestor's title free from the right before ex- isting in the disseisee to recover the seisin by a mere entry; the theory being that the disseisor, having to render the military serv- ices due upon the tenure, would fight better, knowing that if he fell seisin of sucti rights can be established only by proof that the enjoyment of them has been usurped by another than the owner. 36 2 Min. Insts. 578 et seq. 37 Preston, Abst. Tit. 284. 88 2 Min. Insts. 518 et seq. S9 These conveyances are explained, post, §§ 282, 965 ; 2 Min. Insts. 991 et seq. *o Post, § 196 ; 2 Min. Ins.ts. 598. MiNOK & W.Eeal Peop.— 9 (129) § 136 ABEYANCE OP THE FEEEHODD. [Ch. 6 in battle his heir would be in a better position with respect to the title than he himself was — the same principle that now animates many of the governments of the world to pension the widows and children of soldiers who have fallen in battle. The common-law maxim controlling this case was : "Descensus tollit seisinam" (De- scent tolls or takes away the right of entry) ; and the disseisee was left to the inconvenient redress by an action at law.*'^ § 136. Abeyance of the Freehold. Since the immediate freehold could only be created or transferred at common law with livery of seisin — that is, with the delivery of the possession — it would have been an absurd self-contradiction to attempt with one breath to de-' liver the possession and with the same breath to postpone to a future date the enjoyment of that possession. Hence no principle of the common law was more firmly established than that a freehold estate could not be made to spring up or commence in futuro, unless there be an estate preceding it, to the owner of which livery might be made. The livery of seisin must take effect in prsesenti, or not at all." To the reason above mentioned may be added two others, viz. : (1) If the freehold were thus allowed to be in abeyance for a time — that is, in the immediate possession of nobody — there would be none to render the military services due under the feudal system; and (3) there would be none to sue or be sued for the title during such abeyance.*^ But by the statutes of uses and of wills, which, as will appear more fully hereafter,** dispense with actual livery of seisin at least, a conveyance of the freehold to take effect in the future, even though not preceded by another estate, does not put the freehold in abey- ance, but leaves it still in the grantor until the time arrives or the event happens at which the possession is to go to the grantee. Such conveyances are therefore now freely allowed, and are termed "Ex- ecutory Limitations." *'' § 137. Classification of Estates of Freehold and Estates Less than Freehold. Li respect of quantity or duration, the great divi- sion of estates is, as has already been suggested, into freehold es- tates and estates less than freehold. 412 Min. Insts. 519; 2 Bl. Com. 196, 197. 42 2 Min. Insts. 83, 747. The qualification mentioned in the text, viz.: "Un- less there is an estate preceding it to the owner of which livery might be made" — explains the existence at common law of freehold remainders such as are mentioned, ante, § 128. 4 3 2 Min. Insts. 83; 2 Bl. Com. 107, note (7) ; 3 Th. Co. Lit. 102, 103, note (G). 4 4 Post, § 397 et seq., 673, 1003. 4 6 2 Min. Insts. S3, 431, et seq. ; post, § 673 et seq. (130) Ch. 6] CLASSIFICATION OF ESTATES. § 137 Freehold estates are divided into (1) estates of inheritance, that is, estates of such duration as to be susceptible of descent upon the heir of the owner after the latter's death ; and (3) freehold estates less than estates of inheritance, that is, estates of indeterminate duration (and therefore freeholds), but which cannot endure longer than during the life of some person, though sometimes terminable sooner, and therefore often referred to as life estates. Estates of inheritance are classified as (1) Estates in fee simple ; (2) estates in fee qualified, or base fees; (3) estates in fee condi- tional ; and (4) estates in fee tail. Freeholds less than estates of inheritance (or life estates) consist of (1) freeholds created by act of the parties; and (2) freeholds created by act of the law. Life estates by act of the parties are classified as (1) estates for the tenant's own life; (2) estates for the life of another (pur auter vie) ; or (3) estates for an indeterminate period, which may or may not coincide with a life, as an estate during coverture, or durante' viduitate (during widowhood), or as long as Z. resides abroad, or until Z. returns from abroad, etc. Life estates by act of the law, are (1) estates tail after possibil- ity of issue extinct; (2) estates by the curtesy; and (3) estates in dower. Estates less than freehold are classified as follows: (1) Estates for years ; (2) estates at will ; (3) estates from year to year ; and (4) estates by sufferance. In tabulated form the classification of estates is as follows: I. Estates of Freebold. A. Estates of Inheritance. 1. Fee Simple. 2. Fee Qualified or Base Fee. 3. Fee Conditional. 4. Fee Tail. B. Estates Not of Inheritance (Life Estates). 1. By Act of the Parties. a. Estate for Tenant's Own Life. b. Estates for Life of Another (Pur Auter Vie). c. Estates Which Jlay Last for Life, but Terminable by an Uncertain Event 2. By Act of the Law. a. Estates Tail after Possibility of Issue Extinct. b. Curtesy. c. Dower. II. Estates Less than Freehold. A. Estates for Years. B. Estates at Will. C. Estates from Tear to Tear. D. Estates by SufCerance. (131) CHAPTER VIL THE FEB SIMPLE. i 138. Nature and Extent of Fee-Simple Owner's Interest 139. Origin and Growtli of thp Fee Simple. 140. Necessity for the Word "Heirs" — Usually Indispensable in Common- Law Conveyances. 141. "Heirs" Not Always a Word of Limitation. 142. Exceptions to Common-Law Rule Requiring "Heirs" in Transfer of Fee Simple — Enumeration. 143. I. "Heirs" Dispensed with in Case of Devises of Land. 144. II. "Heirs" Dispensed with in Exceptions (but Not in Reservations) in a Conveyance. 145. III. "Heirs" Dispensed with upon Reference to Another Deed Con- taining the Word. 146. IV. "Heirs" Dispensed with in Case of a Corporation Grantee. 147. V. "Heirs" Dispensed with in Case of Conveyance to a Trustee. 148. VI. "Heirs" Dispensed with in Release or Quitclaim Deeds. 149. "Heirs" Dispensed with by Statute. 150. Incidents of the Fee Simple — Enumeration. 151. I. Power of Alienation by Owner of Fee Well-Nigh. Unlimited. 152. II. Fee Simple Descendible to the Heirs General. 153. III. Fee Simple Subject to Dower and Curtesy. 154. IV. Fee Simple Subject to Owner's Debts. 155. V. Fee Simple Subject at Common Law to Forfeiture for Treason and Felony. 156. VI. Fee Simple Subject to Escheat. § 138. Nature and Extent of Fee-Simple Owner's Interest. An estate in fee simple is the entire and absolute property of the sub- ject-matter, and therefore when one grants such an estate he can make no further disposition of the property (save by way of substi- tution), for he has already granted the whole and entire interest that it is possible for him to have, and consequently nothing re- mains in him.^ The substitution of another estate for a fee simple is at com- mon law practicable only when the fee simple granted is a future and contingent estate, which happens not to vest, in which case another estate, a fee simple for example, may be limited to take its place; but the rules of the common law, hereafter explained, forbade the substitution of another estate in the room of a freehold estate that has once vested.^ The case of the substitution of a contingent fee simple, which never vests by reason of the failure to happen of the event upon which it is to vest, is variously designated at common law as the doctrine of concurrent fees, or of alternative remainders, or re- 1 2 Min. Insts. 80, 81. 2 2 Min. Ingts. 81 ; post, § 473 et seq., 737. (132) Ch. 7] ORIGIN AND GEOWTH OF FEE SIMPLE. § 139 mainders upon a double contingency, or remainders upon a con- tingency in a double aspect. For example, if a conveyance be made "to A. for life, remainder, if A. should die leaving issue, to B. and his heirs, but if A. die leaving no issue at his death to C. and his heirs," B. and C. would each have fee-simple estates, but con- tingent ones by way of remainder, so that C.'s fee simple is to take effect only in case B.'s fails to vest (by reason of A.'s leaving no issue at his death).* But by conveyances operating, not at common law, but under the statutes of wills and of uses,* whereby valid executory or future limitations unknown to the common law may be created, the sub- stitution of one fee simple for another may be made even after the first is vested. It may be divested upon a subsequent contingency, and the property be transferred to another person in fee simple, the rationale of which will be hereafter explained.^ § 139. Origin and Growth of the Fee Simple. The origin of the fee simple is to be found in the remote antiquity of the feudal age. At the first introduction of feuds, as they were gratuitous, so, also, they were precarious, held at the mere will of the lord, who was the sole judge whether his vassal performed his services ably and faithfully.^ When the Teutonic hordes ceased to be migratory and began to covet fixed habitations, the notion of a more permanent tenure began to prevail. Advancing first to estates for fixed periods of short duration (one or two years), the feuds gradually came to be given for the life of the feudatory. '^ The next step was to grant qualified estates of inheritance ; tha,t is, the feud was expressly permitted to pass to the heirs upon the feudatory's death, provided the lord consented that it should do so, the lord at first making it purely a matter of favor which of the tenant's children he would choose. The child pre- ferred usually acknowledging the lord's good will by presents- of horses, money, arms and the like. These presents were called re- liefs, because they served to raise up (relevare) and re-establish the inheritance which had fallen by the feudatory's death.* 3 Post, § 595 ; 2 Siiri. Insts. 81 ; Loddington f . Kime, 1 Ld. Raym. 203 ; Doe V. Burnsall, 6 T. R. 30. 4 Post, § 675. B Post, § 680 ; 2 Th. Co. Lit. 87, note (L), 27, 768, Butler's note II ; Fearne, Rem. 399 et seq., note (d). 6 2 Min. Insts. 66. 7 2 Min. Insts. 66 ; 2 Bl. Com. 55. 8 2 Min. Insts. 66, 67 ; 2 Bl. Com. 55, 56 ; ante, 8 7. (133^ § 139 ORIGIN AND GROWTH OF -PEE SIMPLE. [ph. 7 The last stage was the creation and recognition of unqualified estates of inheritance, which gradually grew up from the qualified estate above described. Feuds, if expressly granted to the feuda- tory and his heirs, came by degrees to be universally extended to the vassal's sons, or to such of them as the lord named, and the form of the donation was at this stage strictly followed. If limited to the vassal's heirs, the feud passed to the male lineal descendants in infinitum, and to none others (that is, to those succeeding generations only which were of the blood of the first feudatory). And originally the descent extended to all the sons alike, without distinction of primogeniture; but, the tendency of this rule being to divide the land and the corresponding responsibility for the feudal services into infinitesimal parcels, the feud began to de- scend to the eldest son in exclusion of all the rest.' Finally, the term "heirs" came to include the collateral relatives of a deceased owner as well as his lineal descendants.'^" The inheritable quality of the feud was confined, however, to grants to the feudatory and his heirs, the "heirs" being originally included as donees in the grant, so that in feudal times the ten- ant in fee simple was not permitted to aliene his estate without the consent of the heir presumptive; but this feudal rule was ab- rogated about the time of Henry III (A. D. 1216-1272), and since that time, while independently of statute the word "heirs" was still necessary to create an estate of inheritance, yet it ceased to signify that the "heirs" took any estate under the grant, the word merely describing or limiting the estate taken by the grantee. ^^ § 140. Necessity for the Word "Heirs" — Usually Indispensable in Common-Law Conveyances. As pointed out in the preceding section, it was a rule of the feudal law in the creation of feuds that the form, of the donation was to be strictly followed, lest the lord be construed to give more than he designed. Hence it came to be an almost unbending rule of the common law that no estate of inheritance could be conveyed to a feudatory or tenant without the use of the word "heirs." ^' In general, no circumlocution nor paraphrase will at common law take the place of the technical word "heirs" (or "heirs of the body"). Though the grantor's intention be ever so clear to transfer to the grantee an estate to endure forever, unless the conveyance 9 2 Min. Insts. 67 ; 2 Bl. Com. 56. 10 2 Bl. Com. 55 et seq., 107 ; Cole v. Winniplsseogee Lake Cotton & Woolen Mfg. Co., 54 N. H. 242, 279. 11 2 Bl. Com. 289 ; 1 Washburn, Real Prop. 83, 84. 12 2 Min. Insts. 83, 84; 2 Bl. Com. 107, 108; 1 Th. Co. Lit. 493. (134) Ch. 7] "heirs" sometimes word of purchase. § 141 be in the technical form "to the grantee and his heirs," or "to the grantee and the heirs of his body," it passes nothing more, at common law, than a life estate. ^^ It will be observed that the word "heirs," when thus used in a conveyance, does not serve to vest any estate or interest in the heirs themselves. Its function, at least in modern times, is to mark out, limit, or describe the estate given to the grantee; and hence the word "heirs" so used in a conveyance is termed a word of limitation (in contradistinction to words of purchase, which create an estate in the person or persons indicated by the word of purchase). Thus, the words "children" and "sons" are not in general words of limitation, describing the estate given to the an- cestor alone by the conveyance, but are words of purchase, vesting an estate in those persons. For example, if one conveys land "to A. and his heirs," A. takes a fee-simple estate and his sons take nothing by virtue of the conveyance; whereas, if the conveyance be "to A. and his sons," a joint estate for life would at common law be vested thereby in A. and his sons, and if "to A. and his sons and their heirs," A. and his sons would take a joint estate in fee simple.^* § 141. "Heirs" Not Always a Word of Limitation. In order that the word "heirs" used in a conveyance should be construed as a word of limitation, it must embrace not only the immediate de- scendants or relatives of the first or second generations, but it must be intended to extend to all future generations of successors, how- ever remote. It must embrace within its scope an indefinite, if not infinite, succession of descendants or collaterals entitled to succeed each other in the inheritance throughout the ages.^" In this sense the term "heirs" or "heirs of the body" is strongly contrasted with 13 Thus a grant to one "in fee simple" would nevertheless carry only a life estate at common law. Bridgewater v. Bolton, 6 Mod. 106, 109; Taylor v. Cleary, 29 Grat. (Va.) 448. And so would a grant to one "and his successors and assigns forever," Sedgwick v. Laflin, 10 Allen (Mass.) 430 ; or to a grantee "and his generation so long as the waters of the Delaware shall run," Foster V. Joice, 3 Wash. C. C. 498, Fed. Cas. No. 4,974 ; or to one "and his executors, administrators, and assigns," Clearwater v. Rose, 1 Blackf. (Ind.) 137. 1* 2 Min. Insts. 84 ; 1 Th. Co. Lit. 496 ; 2 Th. Co. Lit 145, note (P) ; Feame, Rem. 149 et seq. ; Lewis Bowles' Case, 11 Co. 80a; Loddington v. Kime, 1 Ld.. Raym. 203, 1 Salk. 224; Backhouse v. Wells, 1 Eq. Abr. 184, pi. 27; Brett v. Donaghe, 101 Va. 788, 45 S. E. 324. 16 2 Min. Insts. 84 ; Fearne, Rem. 178, 179 ; Stokes v. Van Wyck, 83 Va. 724, 731, 3 S. B. 387. "Heirs of the body" has the same general signification, save only that it embraces lineal descendants alone, and not collateral relatives. Nye v. Lovitt, 92 Va. 710, 24 S. E. 345. (135) § 141 "hbies" sometimes word of purchase. [Cb. 7 "children" or "softs," efc, which for the most part embrace descend- ants of the first degree or generation only." But if the grantor's intention appear upon the face of the con- veyance to use the tetm "heirs" as applicable only to particular relatives, or to a particular class or generation of relatives, not to the succeeding generations in indefinite succession, the word loses its character as a word of limitation, and becomes a word of pur- chase." Hence a conveyance "to A. and the heirs of his body now living" would not at common law pass an inheritance to A., but simply a joint estate for life to A. and such of his descendants as were living at the time of the conveyance.^* § 142. Exceptions to Common-Law Rule Requiring "Heirs" in Transfer of Fee Simple — Enumeration. Notwithstanding the un- bending character of this rule, there are several cases, even inde- pendently of statute, in which the word "heirs" may be dispensed with. It will suffice to note the following: (1) In case of devises of land; (2) in case of exceptions (but not reservations) in a con- veyance; (3) in case of a grant of an interest by reference to an- other conveyance which uses the word "heirs" ; (4) in case of a con- veyance to a corporation ; (5) in case of a conveyance to a trustee ; (6) in case of a release or quitclaim deed. These will be consider- ed in their order. § 143. Same — I. "Heirs" Dispensed with in Case of Devises of Land. Wills of land or devises were unknown to the feudal law, and, save by the custom of particular places, were not permitted in England until the statute of 32 Hen. VIII (A. D. 1541). By that time the rigor of feudal construction had begun to wear away, and hence the English judges felt somewhat more at liberty to disregard the rigorous technical rules applicable to common-law convey- ances, and, in construing the newly authorized devises of land, to look more closely to the real intention of the testator than they had ever permitted themselves to do in the case of conveyances at common law. To this liberality they were further urged by the fact that a testator was often inops consilii in executing his will, thus making it necessary to choose between frustrating most de- vises for want of the proper technical words or dispensing with technical language and the legal certainty thereby engendered.^' One of the modifications, thus made by the courts in the case of devises, in the rigorous technical rules of construction applicable at common law to conveyances, was the dispensing with the Word "heirs" in a devise in order to create an estate of inheritance, pro- 16 2 Min. Insts. 84. is Taylor V. Cleary, 2fy Gralt. (Va.) 44S. IT 2 Jlin. Insts. 84. J9 2 Jlin. Insts. 85 ; 2 Bl. Com. 108, note (11). (136) Ch. 7] "hbiks" not required in exceptions. § 144 vided the testator's intent to create such an estate otherwise ap- pear upon the face of the will. Any words showing the intent that the land shall descend in indefinite succession, after the devisee's death, to his successors, or indicating that the devisee is intended to take a perpetual estate, will suffice.^" Thus, in wills (but not in deeds), such words as '"issue," "de- scendants," "offspring," "seed," and the like, and even "children" and "sons," have frequently been held to be equivalent to the term "heirs of the body." ^^ So, a devise of "my estate" in lands (the tes- tator owning the fee simple therein), or of "all my rights," or of "all my estate," or a devise to one "in fee simple" or "forever," have each and all been held to create in the devisee a fee-simple estate, though the Word "heirs" be not used.^^ But unless the intent appears upon the face of the devise to give more than a life estate, the common-law rule applies to devises as to conveyances, and nothing but an estate for life passes. Thus, in case of a devise of Blackacre "to A." (without further words), A. takes only an estate for his life, just as if the transfer were by deed.^^ § 144. Same — II. "Heirs" Dispensed with in Exceptions (But Not in Reservations) in a Conveyance. Attention has already been called to the distinction between an exception in a conveyaince and a reservation.^* A reservation, it will be femembered, vests in the grantor a new interest or right, growing or issuing out of the land conveyed (as in the case of the reservation of a rent or a profit a prendre), and coming into being after the conveyance. If it does not contain words of inheritance, it creates at common law Only an estate for the life of the grantor.^^ The operation of an exception, on the other hand, is merely to retain in the grantor a portion of the property which, without it, would pass to the grantee under the general terms of the con- veyance, and he holds the excepted portion as of his former title ; 20 2 Min. lusts. 85; 2 Bl. Com. 108; Wright v. Denn, 10 WHeat. 204, 6 L. Ed. 303 ; Robinson v. Kandorlpli, 21 F!a. 629, 58 Am. Hep. 692. 212 Min. Insts. 84, 91; 2 Bl. Com. 114, 115; Doe v. Collis, 4 T. R. 299; Kniglit V. Ellis, 2 Bro. Ch. 578. 22 2 Bl. Com. 108; Davies v. Miller, 1 Call (Va.) 127; Godfr^v. Humphrey, 18 Pick. j(Mass.) 537, 29 Am. Dec. 621; Newkerk v. Newkft«tef "2 Gaines j^. Y.) 345 ; Leland v. Adams, 9 Gray (Mass.) 171 ; Jackson v. Merrill, 6 .T^iffias. (N. Y.) 185, 5 Am. Dec. 213 ; Lambert's Lessee v. Paine, 3 Or. 97 ; Forsaith v. Clark, 21 N. H. 409 ; Robinson vr Randolph, 21 Fla. 629, 58 Am. Rep. 692. 23 Jackson v. Wells, 9 JoltosK (N. Y.) 222. See, also, cases cited supra. 2 4 Ante, § 94. V 26 2 Min. Insts. 50, 51; Bngel v. Ayer, 85 Me. 448, 27 Atl. 852, 354. (137) § 144 "hbiks" not eequikbd in exceptions. [Ch. T no new title thereto being created in him. Hence no words of inheritance are necessary.^"' But the distinction between exceptions and reservations is so often found to be uncertain and obscure that the two expressions have to a great extent, at least in this country, come- to be inter- changeably employed. A reservation is often construed as an ex- ception in order that the obvious intention of the parties may not be defeated. ^^ § 145. Same — III. "Heirs" Dispensed with upon Reference to Another Deed Containing the Word. The omission of words of limitation in a conveyance at common law may be supplied by a reference to some other conveyance which does contain the word '•heirs." ^« Mr. Preston lays down the doctrine thus : "Words of direct and immediate reference will suffice. The word 'heirs,' or 'successors' [in case of a corporation grantee], need not be in the identical deed of grant or other mode of assurance by which the estate is granted or conveyed. Thus where one to whom lands have been granted in fee does, after reciting the grant or without any recital, grant the lands to another as fully as they -were granted to him ; or where a man grants two acres to A. and B., to hold one acre to A. and his heirs and the other to B. 'in form aforesaid' * * * — jj^ these and like instances the fee simple will pass without limitation to the heirs in express terms. The fee passes by reason of the words of direct and immediate reference." ^^ § 146. Same — IV. "Heirs" Dispensed with in Case of a Cor- poration Grantee. Strictly speaking, there can be no "heirs" to a corporation, since it can never die. Hence that word is out of place when used in a conveyance to a corporation. In its stead the technical term "successors" is used, and is perhaps required in the case of a corporation sole in order to create a fee-simple inter- est. But if the grantee is a corporation aggregate, as is usually the case, the word "successors," even at common law, is of little importance, for although without it the estate created is at com- mon law for the grantee's life only, yet corporations are or may be perpetual.^" 2 6 Engel V. Ayer, 85 Me, 448, 27 Atl. 352, 354; Wood v. Boyd, 145 Alass. 179, 13 N. E. 476 ; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290. 27Ante, § 94 ; Engel v. Ayer, 85 Me. 448, 27 Atl. 352. 2 8 Com. Dig. Estate (A, 2); Sheppard's Touchstone, 101; Evans v. Brady, 79 Md. 142, 28 Atl. 1061, 1002. 2 9 2 Preston, Est. 2. 30 2 Min. Insts. 85; 2 Bl. Com. 109; 1 Washburn, Real Prop. 90; Congre- gational Soc. V. Stark, 34 Vt. 243; Wilcox v. Wheeler, 47 N. H. 488; Over- seers of Poor V. Sears, 22 Pick. (Mass.) 126. (138) Ch. 7] "heirs '' WHEN NECESSARY IN RELEASE DEEDS. §. 148 § 147. Same — V. "Heirs" Dispensed with in Case of Convey- ance to Trustee. It is a general maxim of the law, or rather of the courts of equity, that a trust will never be allowed to fail merely for vvant of a trustee, and hence the estate of the trustee is measured, not by the express terms of the grant to him, but byjjthe extent of the estate limited to the beneficiary or cestui que trust. If the beneficial interest be given "to cestui que trust and his heirs," thus creating in him an equitable fee simple, the trustee will take a sim- ilar estate, though words of inheritance be omitted in his case. For, if the trustee were given only a life estate, the trust would fail at his death merely for want of a trustee. ^^ Gn the other hand, if an estate in the trustee less than a fee simple will suffice for the execution of the trust, the trustee's es- tate will be so limited, it is said, in spite of the language of the conveyance.^' § 148. Same^ — VI. "Heirs" Dispensed with in Release or Quit- claim Deeds. If the purpose of the conveyance be not to pass an interest directly to the grantee or to enlarge his estate, but merely to extinguish a right belonging to the grantor, there is no need of words of inheritance. In such case, the right once extinguished is forever extinguished, and cannot be revived by the releasee's death. Thus, if a disseisee releases his outstanding right to the disseisor,^'' or if one entitled to an easement, such as a right of way, release the same to the owner of the servient estate,'* or if a joint tenant or coparcener convey his share of the land to a co-ten- ant by release,'^ in all these cases the word "heirs" may be dis- pensed with in the conveyance. But if a tenant in common convey his share to a co-tenant, the conveyance operates to pass an estate to the grantee, which was not before in him, and hence only a life estate would pass to him at common law, unless there are words of inheritance.'"' And so, if a reversioner or remainderman in fee should release to the par- ticular tenant without words of limitation, since the conveyance 311 Washburn, Real Prop. 90; 1 Perry, Trusts, § 312 et seq. ; Doe v. Con- sidine, 6 Wall. 458, 18 L. Ed. 869 ; Gould v. Lamb, 11 Mete. (Mass.) 84, 45 Am. Dec. 187 ; Wilcox v. Wheeler, 47 N. H. 488 ; Newhall v. Wheeler, 7 Mass. 189 ; Bennett v. Garlock, 79 N. Y. 302, 35 Am. Kep. 517 ; Hawkins v. Chapman, 36 Md. 83. See Carney v. Kain, 40 W. Va. 758, 23 S. B. 650. s2 1 Tiffany, Real Prop. § 20, and cases cited supra. 3 3 Com. Dig. Estate (A, 2). 31 2 Preston, Est. 58. 3= 1 Washburn, Real Prop. 89 : Rector v. Waugh, 17 Mo. 13, 57 Am. Dec. 251. 36 2 Preston, Est. 56, 58; 1 Washburn, Real Prop. 89, 90; Rector v. Waugh, 17 Mo. 13, 57 Am. Dec. 251. (139); § 149 "hbies" dispensed with by statute. [Ch. 7 enlarges the estate of the particular tenant, only a life estate would at comrhon law pass.^' § 149. "Heirs" Dispeihsed with by Statute. In many of the states statutes have been passed abrogating the requirerrient of words of inheritance to create an estate of inheritance.^* it rhay perhaps be gravely doubted whether these statutes ap- ply to interests arising by reservation to the grantor, which inde- pendently of statute, as we have seen, require words of inherit- ance.^* Thus, if upon a lease of latid in fee a perpetual rent is re- served payable to the lessor (without mentioning the heirs), the rent goes at common law, upon the lessor's death, neither to his heirs nor personal representatives, but ceases altogether.*" It is not perceived how thes'e statutes alter this result, unless their equity be supposed to extend to such a case.*^ § 150. Incidents of the Fee Simple — Enumeration. The inci- dents pertaining to the fee-simple estate rnay be enumerated as fol- lows : (1) A well-nigh unlimited power of alienation on the part of the owner; (2) descendible to the heirs general; (3) subject to dower and curtesy; (4) subject to the owner's debts; (5) subject at common law to forfeiture for treason and felony; and (6) subject to escheat. § 151. Same — I. Power of Alienation by Owner of Fee Weil- Nigh Unlimited. Under the feudal law, it will be remembered, the tenant of the fee simple, as well as of other freeholds, was not per- mitted to aliene his estate so as to deprive the lord of his military services, unless the lord assented thereto (which gave rise to the burdensome fines for alienation).*^ The tenant of the fee simple could only subenfeoff his grantee, which subinfeudation did not terminate his responsibility for the feudal services to the lord of the fee, but merely made the tenant's grantee responsible to him (the tenant) for a proper rendition of them, while he remained re- sponsible to the lord of the fee.*^ The system of subinfeudation, as well as the fine for alienation (except only as to the king's tenants in capite), was abolished by the statute of quia emptores, 18 Edw. I, which provided that the grantee of the fee-simple tenant should no longer hold of the gran- 37 2 Preston, Est. 62 ; 1 Washburn, Real Prop. 90. 3 8 1 Washburn, Re.il Prop. 56, note 2; 1 TIflfany, Real Prop. § 20. 3 9 Ante, § 144. 40 2 Mln. Insts. 50; Gilbert, Rents, 04, 65; 2 Th. Co. Lit. 413; Bac. Abr. Rents (H). *i See 2 Min. Insts. 51. *2Ante, § 12; 2 Min. Insts. 73 ; 2 Bl. Com. 72. «sAnte, § 5. (140) Ch. 7] FEJS SIMPLJB DESCENDIBLE TO HEIES GENERAL, § 152 tor and be responsible to him for the feudal services while the gran- tor remained responsible, as before, to the lord of the fee, but that the tenant's grantee himself should thereafter hold of the chief lord of the fee. Since the enactment of that statute the tenant of the fee simple has possessed the complete jus disponendi, so far as the conveyance of the property is concerned.** But it was not until a much later period that the owner of the fee was given the untrammeled right to devise his land,*^ and to have it entirely sub- ject to his debts. *° Bj.it even at the present day the power of disposition by the fee- simple owner may be restricted within reasonable limits by the terms of the grant. A condition may be inserted that he shall not convey to a particular person or class of persons, or that he shall not aliene within a limited period ; and if the grantee be a corpora- tion it may in general be stipulated that the land shall not be aliened at all, because corporations are created for specific purposes, and such restrictions tend to confine them within the prescribed hmits.*'' § 152. Same — II. Fee Simple Descendible to the Heirs General. The fee simple, upon the death of the owner intestate, descends to his "heirs"; that is, to those persons named by the law as his successors, without other regard to sex, age or line of relationship than the law itself provides. Hence a conveyance "to A. and his heirs female" will create no preference in the . female heirs over the heirs male, unless the law itself creates or permits such pref- erence, as it does not in the case of the fee simple.*' So a limitation "to A. and his heirs on the part of his mother" is of no effect to alter the line of descent.*" **Ante, § 5; 2 Min. Insts. 54; 2 Bl. Com. 72; 1 Washburn, Real Prop. 84. 45 The English statute of wills was passed in 32 Hen. VIII (A. D. 1541). See post, § 1002 et seq. 4C See post, § 154. * 7 Post, § 516 et seq.; 2 Min. Insts. 86, 288, et seq.; 2 Th. Oo. Lit. 25 et seq. ; 1 Washburn, Real Prop. 85 ; Attorney General v. Merrimack Mfg. Co., 14 Gray (Mass.) 586 ; French v. Quincy, 3 Allen (Mass.) 9 ; Stuyvesant v. May- or, etc., of City of New York, 11 Paige (N. Y.) 414 ; Southard v. Central R. Co. of New Jersey, 26 N. J. Law, 13 ; Pennsylvania R. Co. v. Parke, 42 Pa. 31 ; Warner v. Bennett, 31 Conn. 468; Grissom v. Hill, 17 Ark. 483. *8i Washburn, Real Prop. 93; 2 Bl. Com. 113 et seq.; 1 Th. Co. Lit. 547. It is otherwise in the case of the fee tail, where the sex of the heirs may be designated. Post, § 168. But a limitation in a devise to one and "his heirs njale" has been held to create an estate tail male in the grantee. See Denn V. Slater, 5 T. R. 335 ; Den v. Fogg, 3 N. J. Law, 385 ; Cooper v. Cooper, 6 R, I. 261. *» 1 Washburn, Real Prop. 93; Co. Litt. 27, 130. (141) § 153 FEE SIMPLE SUBJECT TO DOWER AND CURTESY. [Ch. 7 § 153. Same — III. Fee Simple Subject to Dower and Curtesy. This incident is not peculiar to fee-simple estates, but is applicable to all estates of inheritance. =" They are all in general subject to the curtesy or dower of the consort of the deceased owner, when- ever the requisites therefor exist. ''^ § 154. Same— IV. Fee Simple Subject to Owner's Debts. By the feudal law land held by feudal tenure was not subject to the debts of the owner, lest the debtor tenant be substituted, without the lord's consent, by one inimical to the lord's interests, and the feudal rule requiring the lord's consent to an alienation by the tenant be thus evaded and abrogated. ^^ In process of time, however, the lands of a deceased owner be- came liable to his debts of record and to his debts of specialty (that is, under seal) expressly binding the heirs, provided the lands had descended upon the heir and had remained in his hands until suit was brought to enforce the debt.'^' By statute 13 Edw. I, c. 18, lands of a living debtor were al- lowed to be subjected upon a judgment against him under a "writ of elegit." This statute enacted that "when a debt should be re- covered or a recognizance should be acknowledged in the king's court, or when damages should be adjudged, it should be in the election of the plaintiff to sue out a writ commanding the sheriff to make the debt or damages out of the goods and chattels of the debt- or, or to deliver to the creditor all the chattels of the debtor (except oxen and beasts of the plough) and a moiety of his land, until the debt should be levied by a reasonable price or extent, and if the creditor were ejected from that tenement, he should recover the same by writ of novel disseisin and afterwards if need be by a writ of redisseisin." The right of election given the creditor under this statute, and the entry upon the rolls after he had chosen this remedy — "quod elegit sibi executionem fieri de omnibus catallis et medietate terrse" — gave the writ of elegit its name.^* Generally in this country land is, by statute, liable to sale on ex- ecution against the owner and is charged with the payment of his debts upon his death, provided his personal estate is not sufficient to pay them. 5 Post, §§ 220, 249. 51 2 Min. Insts. 86, 115 et seq., 135 et seq. 5 2 2 Min. Insts. 302. 63 2 Min. Insts. 86; 2 Bl. Com. 161, 465, note (36); Bac. Abr. Heir (F) ; 1 Washburn, Real Prop. 02. 54 2 Min. Insts. 302; 2 Bl. Com. 161; Bac. Abr. Execution (C) 2. (142) Ch. 7] FEB SIMPLE SUBJECT TO ESCHEAT. § 156 § 155. Same — V. Fee Simple Subject at Common Law to For- feiture for Treason and Felony. An attainder or conviction of treason or felony, in addition to tlie corporal punishment inflicted, worked at common law a forfeiture of the culprit's lands — in the case of treason, forever ; and in the case of felony (other than trea- son), for the life of the felon and a year and a day thereafter.^^ A further consequence at common law of an attainder of treason or felony was that the blood of one attainted was so corrupted as to lose its heritable quality. Hence, if an ancestor dies leaving no other heir than a person so attainted, the latter is at common law incapable of inheriting; ^^ or if the ancestor is himself so attainted, his whole blood is corrupted, and there is none who may claim the land by reason of relationship to him, so that at common law the land escheats for want of heirs capable of inheriting.^' In this country, by the Constitution of the United States, no at- tainder of treason (that is, treason against the United States) shall work corruption of blood or forfeiture of estate except during the life of the person attainted. ^^ Previous to 1860 it was provided by act of Congress that no conviction or judgment for treason, mur- der, piracy, etc., should work corruption of blood or forfeiture of estate.^' Since that time, however, especially during the period of the Civil War and immediately thereafter, forfeitures under the laws of the United States have been vastly multiplied, chiefly in connection with rebellion.*" § 156. Same — VI. Fee Simple Subject to Escheat. Escheat oc- curs whenever inheritable blood is lacking to inherit the fee, for it is a maxim of general policy that no property in a state should, if possible, be without an owner. The feudal system made this principle peculiarly necessary in early days, it being essential that there should always be a tenant ready to render the military services. Hence it was regarded as one of the incidents of feudal tenure that if a tenant of the fee simple die leaving no heir, or none capable of inheriting the land, it escheats to the lord of the fee.*^ 5 5 2 Min. Insts. 87, 589; 2 Bl. Com. 267, 268. 6 6 2 Min. Insts. .5."^6, o.jT ; 2 Bl. Com. 2.J1 et seq. 5T 2 Min. Insts. 556, 557. 58 2 Min. Insts. 87 ; Const. U. S. art. 3, § 3, cl. 2. It will be observed that attainder of felony is not mentioned in this provision of the. Constitution. 59 2 Min. Insts. 87; 1 Brightly, Dig. 221. «o 2 Min. Insts. 87; 2 Brightly, Dig. 199 et seq. ; Alexander's Cotton, 2 Wall. 404, 17 L. Ed. 915 ; Armstrong's Foundry, 6 Wall. 769, 18 L. Ed. 882 ; Morris' Cotton, 8 Wall. 511, 19 L. Ed. 481 ; Confiscation Cases, 7 Wall. 454, 19 L. Ed. 196, 20 Wall. 92, 22 L. Ed. 320. siAnte, § 13; 2 Min. Insts. 54S, 549; 2 Bl. Com. 72, 73. (143) § 156 FEE SIMPLE SUBJECT TO ESCHEAT. [Ch. 7 The want of inheritable blood may be due at common law to three causes : (1) The absolute absence of any legitimate heirs ; (2) the alienage of such heirs ; and (3) their attainder of treason or felony.^^ It is to be observed that no estate less than a fee simple (or a fee qualified) can escheat, for such lesser estate always sup- poses a reversioner or remainderman who possesses the ultimate fee, to whom the land may go without the necessity for an escheat. Thus, if a tenant in fee tail die without issue, or an estate for life terminates before its regular course is run, the land does not es- cheat, but in the first case goes over to the reversioner or remain- derman, and is in the second case thrown open at common law to general or special occupancy, the nature of which will be explained hereafter."^ In this country, while the feudal tenures do not in general ex- ist, the same principle requires that land belonging to one who dies without heirs should escheat — not to the feudal lord, as there is none, but to the state itself.** And in this country generally there are statutory provisions authorizing escheat in such cases and prescribing the mode of procedure and the official who shall perform this function. 6 2 Ante, i 155, post, § 785; 2 Min. Insts. 555 et seq. 2 Bl. Com. 72, 73. 6 3 Post, § 807 et seq. 64 Ante, § 13. (144) CHAPTER VIII. THE FEE QUALIFIED OR BASE FEB. § 157. Fee Qualified Distinguished from a Fee Simple. 158. Fee Qualified Distinguished from a Fee upon Condition. 159. Descendible Freeholds. 160. Quasi Reversion in Grantor after a Fee Qualified. 161. Incidents of the Fee Qualified. § 157. Fee Qualified Distinguished from a Fee Simple. A fee qualified or base fee, though an estate of inheritance, and at com- mon law requiring, like a fee simple, the word "heirs" for its creation, is to be distinguished from the fee simple by the charac- teristic that it is liable to terminate regularly, not only upon a total failure of heirs (in which case it escheats, just as a fee simple would do), but also by running out its regular course without a failure of the tenant's heirs. It ma}^ by its general limitation continue for- ever, but it is subject to some further limitation by virtue of which it may terminate at any moment upon the occurrence of a desig- nated contingency.^ Thus, a conveyance, "to A. and his heirs, peers of the realm," or "to A. and his heirs, lords of the manor of Dale," or "to A. and his heirs as long as Z. shall have heirs of the body," or "to a town, as long as the judicial proceedings of the town shall be held on the premises," etc., are instances of fees qualified.^ § 158. Fee Qualified Distinguished from a Fee upon Condition. While a fee qualified is liable to be terminated by the happening of some event before there is a total failure of heirs (which distin- guishes it from a fee-simple absolute),^ care must be taken, on the other hand, to distinguish it from a fee simple upon condition, which is also liable to terminate by the happening of some event before the heirs are exhausted. The distinction between the fee qualified and the fee simple ~ upon condition is the distinction, hereafter to be noted, between a "common-law limitation" (or a "special limitation") and a "con- dition subsequent." ■* Postponing a fuller explanation, it will suf- fice at this place to point out that a condition subsequent terminates an estate prematurely — that is, before the time arrives at which, 1 2 Min. Insts. 87. 2 2 Min. Insts. 87 ; 2 BI. Com. 109 ; 1 Th. Co. Lit. 507, note (30) ; 1 Prestoa . Est. 431. 3 Ante, § 157. * Post, § 479. MiNOE & W.Real Pbop.— 10 (I'lS) § 158 FEE QUALIFIED OR FEE ON CONDITION. [Oh. 8 by the express terms of its original limitation, it should regularly terminate — and is created by such words as "if," or "provided that, or "upon condition that," etc. ; while a special limitation is itself a part of the original limitation, marking out or describing the utmost period during which the estate may endure, that is, until the event happens which of itself terminates the estate. A special limitation is created by the use of such words as "until," or "as long as," or "while," or "during," etc. To this latter class belong fees qualified.^ Thus, a conveyance of land "to A. and his heirs, as long as they remain citizens of Virginia" is a fee qualified in A., which may last forever, but which may terminate at any time not only by the ex- haustion of A.'s heirs, but by their ceasing to be citizens of Vir- ginia. On the other hand, a conveyance "to A. and his heirs (in fee simple), but if they should cease to be citizens of Virginia, the estate to terminate," creates a fee simple in A. upon a condition subsequent. § 159. Descendible Freeholds. There is a certain class of in- terests which (strictly speaking) ought not to be classed as fees qualified, because they cannot by possibility endure forever, but which nevertheless are freehold estates, and may endure for ages. Such is a conveyance "to A. and his heirs, as long as a certain tree (or building) shall stand." This would seem to be an intermediate estate between a life estate and a fee qualified, enduring longer than a life and descend- ible to the heirs, but yet not a base fee, because not capable in the nature of things of lasting forever.* But it seems to be settled now that such an estate is to be re- garded, in most respects at least, as if it were a base or qualified fee, and not as creating a distinct class of estates of inheritance.'' As will appear in the following section, there is one respect at least in which it differs from a fee qualified. § 160. Quasi Reversion in Grantor after a Fee Qualified. In the case of a grant of the fee-simple absolute, there can be no re- version left in the grantor, for the fee simple, which is the entire estate, has departed from him unconditionally. But if the fee simple be given upon a condition subsequent, there is a possibility, if not a probability, that the estate will once 5 Post, § 479. 6 2 Min. Insts. 87, 88. ^ 2 Min. Insts. 88 ; 1 Wasliburn, Real Prop. 94 ; 4 Kent, Com. 49. Plowden and Preston call It a '.'determinable fee." Walsingham's Case, 2 Plowd. o.iT ; 1 Preston, Est. 432, 441. Tjord Coke, more logically, calls it a "descendible freehold." Seymor's Case, 10 Co. 98a. (146) Ch. 8] INCIDENTS OF FEE QUALIFIED. § 161 more return to the grantor upon the breach of the condition, or the failure to comply therewith. This possibility is not a reversion, however, but a mere contingent "possibility of reverter," or "quasi reversion," and is not regarded at common law as an interest in land at all. So it is, also, in the case of fees qualified. Since the fee quali- fied may endure forever, nothing is left in the grantor at common law save a "possibility of reverter," or a "quasi reversion," which may become an interest in the future by the arrival of one of the regular periods of expiration marked out for the estate in its original limitation. Such was the remarkable instance mentioned by Lord Hale of the grant by Henry HI of the manor of Penrith and Sourby "to Alexander, King of Scotland, and his heirs. Kings of Scotland." Alexander, having daughters, one of whom mar- ried the Earl of Hunt, died leaving no heir who was King of Scotland; whereupon it was adjudged that the estate was deter- mined, and that the manor reverted to the heir of Henry IH, who was Edward I, and he recovered it accordingly.* But' if the interest is a "descendible freehold" ' — an estate that cannot last forever — a true reversion, it is said, remains in the grantor.^" § 161. Incidents of the Fee Qualified. The owner of the fee qualified, as long as the estate continues and the possession re- mains in him or his heirs, enjoys the same rights in respect to it which he would have if he were tenant of the fee simple. Hence all the incidents of the fee-simple estate attach also to the fee quali- fied, and no further reference to them need here be made.^^ 8 2 JXln. Insts. 87. » Ante, § 159. lo 1 Washburn, Real' Prop. 95. 112 Min. Insts. 88; 1 Washburn, Real Prop. 95; ante, § 150 et seq. (147) CHAPTER IX. THE FEE CONDITIONAIi. § 162. Nature of the Fee Conditional at Common Law. 163. Fee Conditional Converted into Fee Simple by Birth of Issue. 164. Objections on Part of Nobility to Fee Conditional. 165. Fee Conditional Converted into Fee Tail by Statute "De Donis Con- di tionalibus." § 162. Nature of the Fee Conditional at Common Law. At common law, the term appropriate to the creation of a fee condi- tional was the phrase "heirs of the body." A conveyance "to B. and the heirs of his body" created a fee conditional at common law. The reader must observe that the fee conditional estate is to be carefully distinguished from a fee simple upon condition, in that it is not every condition that constitutes a fee conditional. For the fee conditional there is but one condition, namely, that the grantee shall have heirs of the body.^ § 163. Fee Conditional Converted into Fee Simple by Birth of Issue. The birth of issue being a fulfillment of the condition, the estate upon general principles ought to become immediately ab- solute for all purposes whatsoever. But the doctrine of the com- mon law was that the fee conditional thereby became an absolute fee simple, for three purposes only, namely; (1) To aliene in fee simple ; (2) to charge with rents, commons and other incumbran- ces ; and (3) to forfeit for treason. If, however, none of these things happened before the issue died, the estate lost its character of fee simple, and became once more a fee conditional, as before ; and if the grantee should finally die without issue the land reverted to the grantor, whilst if he should die leaving issue (none of the three things above mentioned having happened) the land descended to such issue as a fee conditional. - Under this state of the law, the grantee of a fee conditional, as soon as he had fulfilled the condition by having issue, would generally hasten to convey the land in fee simple to some friend, 1 2 Jlin. Insts. 88 ; 2 Bl. Com. 110 ; 1 Preston, Est. 477. A conveyance to one "and the heirs of his body" was thus at common law in effect equivalent "to one and his heirs, if he should have heirs of the body." 1 Tiffany, Real Prop. § 22. 2 2 Min. Insts. 88 ; 1 Th. Co. Lit. 508, 509 ; 2 BL Com. Ill, note (17) ; 1 Washburn, Real Prop. 98. (148) Ch. 9] FEE CONDITIONAL CONVERTED INTO FEE TAIL. § 1G5 taking back from him immediately a fee simple in lieu of the fee conditional before owned by him, thus frustrating the family ob- jects of the limitation and defeating the possibility of reverter previously existing in the donor. ^ § 164. Objections on Part of the Nobility to Fee Conditional. The nobility objected especially to the power of alienation in fee simple enjoyed by the donee of the fee conditional, upon birth of issue, and to the liability of the estate thereupon to be for- feited for treason. These attributes of the fee conditional did indeed affect their order injuriously in three ways. In the first place, the nobles were for the most part the donors of these estates, and by according to the donee the power to aliene in fee simple the possibility of reverter was practically destroyed. In the sec- ond place, when an improvident noble was the donee, he was thus empowe'red to aliene the family estates to the detriment of the aggregate power a.nd influence of the order. And in the third place, the nobles being the main participants or victims in the frequent real or pretended treasons of the feudal period, the for- feiture of these estates for treason redounded for the most part to their disadvantage.* § 165. Fee Conditional Converted into Fee Tail by Statute "De Donis Conditionalibus." In consequence of the objections above enumerated, the nobility (who then constituted practically the whole Legislature), under the plausible pretext of giving full ef- fect to the will of the donor, proposed and carried the famous statute of Westminster II, 13 Edw. I, c. 1, usually called the "stat- ute de donis conditionalibus" (concerning fees conditional), which, in respect to lands and tenements, converted fees conditional into fees tail."^ i The effect of this statute was to destroy the power of alienation in fee simple and of charging the estate with incumbrances, after the birth of issue, and to relieve the estate from liability to for- feiture for treason. Thenceforth the estate remained in effect a perpetual fee conditional, though called an estate tail.° The courts construed the statute de donis to create three distinct estates, upon a conveyance by G. "to A. and the heirs of his body" : One estate (of inheritance) in A., the donee; another in the heirs of A.'s body, of which A. could by no means deprive them ; and a » 2 Min. Insts. 88 ; 2 Bl. Com. 111. * 2 Mln. Insts. 89 ; 2 Bl. Com. Ill, 112. 2 Mln. Insts. 89 ; 2 Bl. Com. Ill, 112, 113, note (18) ; 1 Tli. Co. Lit. 213, 219, 514; 3 Th. Co. Lit. 105, 106, note (10). • 2 Min. Insts. 89. (149) § 165 FEE CONDITIONAL CONVERTED INTO FEE TAIL. [Ch. 9 third, by way of reversion (not merely a "possibility of reverter"), upon a failure of the heirs of A.'s body, in the donor or his heirs.' The estate thus created by way of reversion in the donor or his heirs was a vested, and not a contingent, estate, for all true rever- sions are vested; * the estate tail, unlike the fee conditional and fee qualified, being regarded as distinctly a lesser estate than the fee simple, and an estate which in the eye of the law could not last for- ever. T 1 Washburn, Real Prop. 100, 101. s Post, § 672. (150) CHAPTER X. THE FEE TAIL. § 166. Origin of Estates Tail. 167. Tilings Which May Be Entailed. 168. Estates Tail General and Special — Male and Female. 169. Words of Inheritance Necessary in Common-Law Conveyances to Create an Estate Tail. 170. Words of Inheritance Necessary in a Devise to Create an Estate Tail. 171. Estates Tail Created by Implication in Devises. 172. Kule in Wild's Case. 173. Estates Othervs-ise Fees Simple Reduced to Fees Tail by Implication. 174. Mischiefs of Estates Tail. 175. DifBculties in the Way of Remedying These Mischiefs. 176. First Method of Barring or Conveying Entails — Taltarum's Case. 177. Later Assaults upon Entails in England. 178. Existing State of Entails in England. 179. Incidents of Estates Tail. 180. Estate Tail after Possibility of Issue Elxtinct. 181. The Fee Tail in the United States Generally § 166. Origin of Estates Tail. The fee tail originated, as shown in the preceding section, in the statute de donis conditionalibus, 13 Edw. I, c. 1 (A. D. 1285), which converted the fee conditional into the estate tail. This statute provided in substance that the will of the donor, according to the form of expression in the deed of gift (per formam doni) should be observed, so that he, to whom any tenement was given on such condition as formerly would create a fee conditional, should have no power to aliene the same, but that it should remain to his issue after his death, or if there were no issue should revert to the donor or his heirs. ^ The name fee tail (feudum talliatum) was borrowed from the feudists, amongst whom it signified any mutilated or truncated inheritance from which the heirs general were cut off; or, as some say, because ownership of the subject was cut into two parts, one going to the donee and the heirs of his body and the other remain- ing as a reversion in the donor.' § 167. Things Which May Be Entailed. The word employed in the statute de donis is "tenement," which denotes any corporate inheritance capable of being holden of a feudal superior, and also includes all inheritances issuing out of, annexed to, or exercisable within, the same, for example, not only lands, but likewise rents 1 2 Min. Insts. 89; 2 Bl. Com. 112; 1 Th. Co. Lit. 512 et seq. 2 2 Min. Insts. 89 ; 2 Bl. Com. 112, note (m) ; 1 Th. Co. Lit. 512, 525, 526. (151) § 1G7 FEE TAIL THINGS WHICH MAY BE ENTAILED. [Ch. 10 of all kinds, commons, dignities, uses, and other profits granted out of lands or which concern certain places, all of which may be en- tailed under the statute. But mere personal chattels are not entailable, and, if given to one "and the heirs of his body," the absolute estate therein passes to the grantee. Neither is an annuity nor a corody entailable, for, though incorporeal hereditaments, they are not tenements ; but these latter, if limited to the grantee "and the heirs of his body," remain as at common law fees conditional.' § 168. Estates Tail General and Special — Male and Female. The will of the donor was made so supreme by the statute de donis that not only might he limit the inheritance to the special heirs of the donee's body, but he was permitted to prescribe both the par- ents, and even the sex, of the heirs ; a permission peremptorily de- nied in the case of a fee simple, so that a limitation to a grantee and his heirs male is simply surplusage with respect to the word "male," and amounts merely to an ordinary fee simple descendible to the heirs general, regardless of sex.* If only one parent is named, as in the case of a conveyance "to A. and the heirs of his body," the estate is a fee tail general, and this in turn may be an estate tail male general or an estate tail female general, according as the sex of the heirs of A.'s body is designated in the original limitation.^ If both parents are named, as in the case of a conveyance "to A. and the heirs of his body upon his present wife, M., begotten," the estate is a fee tail special, which will be an estate tail male special or an estate tail female special according as the sex of the heirs is designated. If the sex of the heirs of A.'s body is not men- tioned at all, the estate created is simply an estate tail special or general, as the case may be." If the sex of the heirs be designated, as upon a conveyance "to A. and the heirs female of his body," all future heirs of the estate must not only themselves answer the description of sex contained in the gift, but can claim only through persons who answer that descriptioh. Thus, in the case just mentioned, if A. only has a son, who himself only has a daughter, the latter cannot succeed to the estate tail (though her father be dead at the time of A.'s death) for she claims through a male.'' sAnte, § 62 ; 2 Jlin. Insts. 89, 90 ; 2 Bl. Com. 113, note (18) ; 1 Th. Co. Lit. 213, 219, 514 ; 3 Th. Co. Lit. 105, 106, note (10). i 2 Min. Insts. 90 ; 2 Bl. Com. 113 et seq. ; 1 Tii. Co. Lit. 547 ; ante, § 152. B 2 Min. Insts. 90, 01 ; 2 Bl. Com. 113, 114 ; 1 Th. Co. Lit. 530, 541, 551. « 2 Min. Insts. 90, 91 ; 2 Bl. Com. 113 et seq. ; 1 Th. Co. Lit. 530, 541, 551. T 1 Washburn, Real Prop. 109. (152) Ch. 10] 'fee TAIL BY IMPLICATION. § 171 § 169. Words of Inheritance Necessary in Common Law Con- veyances to. Create an Estate Tail. At common law, in the crea- tion of estates tail as of other estates of inheritance, the word "heirs" was indispensable (qualified in the case of the fee tail by other words, such as "of the body," showing from whom the heirs are to spring). But no particular words of procreation are requi- site; that is, words showing of whose body the issue is to be be- gotten. It is enough if it appears with reasonable certainty from whom the issue is to spring.* Thus, a conveyance "to A. and his heirs, namely, the heirs of his body," or "to A. and his heirs, of himself lawfully issuing or begotten," or "of his wife begotten," all these suffice to create an estate tail." But, as in other instances of inheritances created at common law by deed, no synonym nor circumlocution can in general sup- ply the place of the word "heirs." Without that word, the con- veyance will usually create a life estate only, though other words be used having the same meaning as "heirs of the body." Thus, a conveyance "to A. and the issue of his body," or "to A. and his lineal descendants," or "to A. and his seed," or "to A. and his off- spring," will only at common law create a life estate in A., if used in a deed.^" § 170. Words of Inheritance Necessary in a Devise to Create an Estate Tail. In the creation of an estate tail by devise, as in the creation of a fee simple by the same means, ^^ the intention of the testator is looked to rather than any technical form of words. Hence, if that intention be clearly expressed or necessarily implied to create an estate tail, such will be the effect, though the formal words of inheritance be absent. ^^ Thus, a devise "to A. and his issue" (or "descendants," or "seed," or "offspring") would create an estate tail in A., though if it were a deed a mere estate for, the grantee's life would arise.^^ § 171. Same — Estates Tail Created by Implication in Devises. The testator's intention may be shown by necessary implication, as well as by the express language of the will, so that the essential words of inheritance, though entirely absent, may often be im- plied, if the testator's manifest intention makes it necessary; or 8 2 Min. Insts. 91 ; 2 Bl. Com. 114, 115 ; 1 Th. Co. Lit. 520, 521. » 2 Preston, Est. 485 ; 1 Washburn, Real Prop. 110. 10 2 Preston, Est. 480 ; 1 Washburn, Real Prop. 110. "Ante, I 143. 12 2 Jlln. Insts. 91. 13 2 Min. Insts. 91 ; 2 Bl. Com. 114, 115 ; Doe v. Collis, 4 T. R. 299 ; Knight T. Ellis, 2 Bro. Ch. 5TS. (153) § 171 FEE TAIL BY IMPLICATION. [Ch. 10 words used in the will that would not ordinarily be construed as words of limitation, e. g. "children," may be so interpreted when it becomes necessary in order to carry out the testator's intention. Thus, upon a devise "to A. for life, and if he die without issue to B. and his heirs," it is apparent that the testator intends that, should A. die leaving issue, the estate upon A.'s death should go to such issue. Hence there would at common law be implied in such a devise after A.'s life estate the words "remainder to A.'s is- sue," causing the devise to read by implication as follows : "To A. for life, remainder to A.'s issue, and if he die without issue to B. and his heirs." ^* This would at common law create an estate tail in A. by force of the rule in Shelley's Case, as will be hereafter ful- ly explained.^" So, if there be a devise to an unborn person for life, with re- mainder in tail either to his child or to his children, successively or in common, it is the manifest intention of the testator that the child or children should take an estate in the land. But under the rules of the common law a remainder to the child, children or is- sue of an unborn person is void. In order, therefore, to effectuate the general' intent of the testator to give the child or children an estate, it is necessary to imply an estate tail in the unborn person instead 6f the life estate expressly given him by the will."^* So, too, in case of a devise "to A. for life, remainder to his chil- dren," where there is a manifest intent that the children should take an inheritance, which they could not do directly for want of words of inheritance, it has been held that A. takes an estate tail by implication, in order to eiTectuate the general intent ; the word "children" being construed as equivalent to "issue," thus giv- ing ground for the operation of the rule in Shelley's Case.^' 1* Pells V. Brown, 3 Cro. Jae. 590; Anon. 3 Dyer, 354a; Souday's Case, 9 Co. 128 a, note (B) ; Attorney General v. Sutton, 1 P. Wms. 757 ; Doe v. Ap- plin, 4 T. R. 87 ; Jiggetts v. Davis, 1 Leigh (Va.) 3G8, 418 ; See v. Cralgen, 8 Leigh (Va.) 449 ; Tinsley v. Jones, 13 Grat. (Va.) 289 ; Wine v. JIarkwood, 31 Grat. (Va.) 50, 51 ; Tate v. Tally, 3 Call (Va.) 354 ; Bells v. Gillespie, 5 Band. (Va.) 273. 10 Post, § 610 et seq. But the rule in Shelley's Case is now abolished in several of the states. 16 Gray, Perpet. § 643 et seq. ; 1 Jarman, Wills, 263 ; Fearne, Rem. 204, Butler's note ; Humbertson v. Humbertson, 1 P. Wms. 332 ; Parfitt v. Hem- ber, L. R. 4 Eq. 443 ; Hampton v. Holman, 5 Ch. Div. 183 ; Jackson v. Brown, 13 Wend. (N. T.) 437. For the rule making void such remainders, see post, § 646. 17 2 Min. Insts. 465; Smith v. Chapman, 1 Hen. & M. (Va.) 240, 299, 302; Taylor v. Cleary, 29 Grat. (Va.) 448. (154) Ch. 10] FEE TAIL RULE IN WILD'S CASE. § 172 § 172. Same — Rule in Wild's Case. Another prominent in- stance of an estate tail by implication in a devise arises under what is known as the rule in Wild's Case.^* This rule is that in case of a devise "to A. and his children arid their heirs," or simply "to A. and his children," if A. has no chil- dren at the time of the devise, a fee tail is vested in A., because the intention of the testator to give the children an estate can only be effectuated by supposing that he used the word "children" in the sense of "issue" or "heirs of the body," and so, in order to ac- complish the intent, A. would take an estate tail by implication, such as is allowed in wills, but not in deeds. ^° On the other hand, if the same limitation were found in a deed of feoffment or other conveyance inter vivos under the same cir- cumstances, the whole fee simple or a life estate (according to the presence or absence of the word "heirs") would vest in A., not to be divested even partially by the subsequent birth of children; for the conveyance, being intended to operate in praesenti, would pass nothing to the nonexistent children (though born later), and it cannot be construed as creating a remainder to the children, be- cause that is not consistent with the intent.^" In construing the terms of the rule in Wild's Case, the mean- ing of the phrase "at the time of the devise" is not entirely set- tled. It seems, however, to be the better opinion that we are not to understand thereby the date of execution of the will, but the date when it is to take effect, whether that be the death of the testator or a time subsequent thereto.^^ If there are children living at the time of such a devise (and in this case, the principle extends to conveyances also), they will take, if a contrary intention does not appear, as purchasers under the devise or conveyance, a joint estate with the parent — at com- 18 Wild's Case, 6 Co. 17 a and b. 19 2 Min. lusts. 84, 85; 1 Th. Co. Lit. 496; Wild's Case, 6 Co. 17 a and b ; Stevens v. Lawton, 1 Cro. Eliz. 121 ; Frederick v. Frederick, 1 Cro. Ellz. 334; Crone t. Odell, 1 Ball & Beat. 439; Gates v. Jackson, 2 Str. 1172; Doe ex dem. Thomason v. Andersons, 4 Leigh (Va.) 122 ; Moon v. Stone, 19 Grat. (Va.) 130, 328. 20 2 Min. Insts. 84, S5, and other authorities cited supra. 212 Min. Insts. 85*; 2 Jarman, Wills, 75, 307, 312; BufCar v. Bradford, 2 Atk. 220; Gilmore v. Severn, 1 Bro. Ch. 582; Prescott v. Long, 2 Ves. Jr. 690 ; Barrington v. Tristram, 6 Ves. 345 ; Crone v. Odell, 1 Ball & Beat. 459 ; Hamlett v. Hamlett, 12 Leigh (Va.) 350, 357, 369 ; Brent v. Washington, 18 Grat. (Va.) 528. (155) § 173 FEE TAIL FEE SIMPLE REDUCED. [Ch. 10 mon law, a joint fee simple or a joint life estate according as the word "heirs" is or is not used.^^ § 173. Same — Estates Otherwise Fees Simple Reduced to Fees Tail by Implication. Not only may estates, otherwise life estates, be raised by implication to the dignity of fees tail, as pointed out in the preceding sections, but the process may be reversed, and estates, otherwise fees simple by virtue of the employment of the word "heirs," etc., may in a devise be cut down to fees tail by the use of qualifying words showing an intent to employ the word "heirs" in the sense of "heirs of the body" or "issue." Thus, a devise "to A. and his heirs, if he should have lawful is- sue, but if he die .without issue then over," etc., creates an estate tail in A; by implication; it being evident that the testator uses the word "heirs" as equivalent to "heirs of the body" or "issue." ^^ § 174. Mischiefs of Estates Tail. The statute de donis, in thus creating estates tail and tying them up in families ("a family law" it has been well called), proceeded upon the insidious suggestion that a man ought to be permitted to do what he will with his own property; whereas, the idea of property being deduced from the general welfare, it is a perversion and abuse to allow it to be used in such a way as to injure the community. It is remarkable that so astute a prince as Edward I, not impro,perly styled "the English Justinian," did not anticipate the mischief likely to ensue as well to the crown as to the body of society, and refuse to sanction an enactment conceived exclusively in the interests of the nobility. It may be conjectured that some motive not traceable in history in- fluenced him to consent to what his judgment could hardly have approved.^* Indeed, the mischiefs resulting to society at large from the establishment of estates tail were many and very soon patent to all. Since the issue took a distinct estate, of which they could be deprived by no act (voluntary or involuntary) of the tenant in tail, some of the most important and harmful consequences en- sued. Thus, (1) children were rendered insubordinate, because they knew they could not be disinherited, even partially ; (2) lessees of the tenant in tail were ousted of their leases by the tenant's death, the lands thereupon going to the issue per formam doni; 2 2 See 2 Min. Insts. 84; Wild's Case, 6, Co. 17 a and b; Cook v. Cook, 2 Vern. 545; Butfar v. Bradford, 2 Atk. 221; Wilson v. Maddison, 2 To. & Coll. 81; P.yne v. Franklin, 5 Sim. 458; De Witte v. De Witte, 11 Sim. 41; Paine v. Wagner, 12 Sim. 188; Pitzpatrlck v. Fitzpatrick, 100 Va. 553, 42 S. E. 306, 93 Am. St. Rep. 976. 23 1 Washburn, Real Prop. 110; Arnold v. Brown, 7 R. I. 188. 24 2 Min. Insts. 91, 92; 1 Th. Co. Lit. 510 et seq. (156) Ch. 10] FEE TAIL FIRST BARRED IN TALTARUM'S CASH. § 176 (3) creditors of the tenant in tail, having advanced money or goods on the faith of the land, were defrauded of their debts, since to charge the entailed estate for a longer period than the tenant's own life would be to deprive the issue of their interest ; (4) public pros- perity was checked by the inalienability of the land entailed ; and (5) treasons were encouraged, since the entailed estates were not forfeitable for treason except during the life of the tenant, and the nobility, holding most of their lands in this way, cared less for their personal safety than for the security and aggrandizement of their families. ^° Of all these mischievous consequences of the law of entails the most important and far-reaching was that the lands were rendered inalienable. Experience has demonstrated that the prosperity of a community depends much upon the freedom with which property may be transferred "from hand to hand. Any obstructions to such transfer are therefore hindrances to the general well-being. To make any considerable proportion of the property of a country by law inalienable, whether under the pretext of conforming to the will of him who granted it or of securing a support for families, will be found to exert a demoralizing influence upon society, to paralyze its energies, and to destroy its thrift.^" § 175. Difficulties in the Way of Remedying These Mischiefs. The mischiefs attending the law of entails, described in the pre- ceding section, were early acknowledged, but it was difficult to devise an available remedy. The statute, too, had been drawn with such consummate skill and foresight, and the enactment so completely covered and prohibited the conveyance of the estate tail by any form of conveyance at that time discovered, that, despite the wishes of the judges and of the people, no opening was found to evade its restrictions for nearly two hundred years; that is, until 12 Edw. IV (A. D. 1473)." § 176. First Method of Barring or Conveying Entails — Talta- rum's Case. In 12 Edw. IV (A. D. 1473) it was decided by the judges in Taltarum's Case that the claim of the issue, as well as the reversion in the donor, might be barred by means of a common recovery suffered by the donee in tail.^' 25 2 Min. Insts. 92; 2 Bl. Com. 116. 26 2 Min. Insts. 92. The transfer of an estate tail at common law by a "tortious conveyance" — that Is, a feoffment or fine — worked a discontinuance of the entail and a forfeiture in favor of the reversioner or remainderman. It was otherwise if the conveyance were an "innocent" one. See post, § 194. 27 2 Min. Insts. 93 ; 2 Bl. Com. 116, 117. 28 2 Min. Insts. 93; 2 Bl. Com. 117; Taltarum's Case, Year Book 12 Edw. IV, pi. 25, f. 19 ; Digby, Hist. Real Prop. 250 et seq. ; Challis, Real Prop. 244. (157) § 176 FEB TAIL — FIRST BARRED IN TALTARUM'S CASE. [Ch. 10 A "common recovery" is a collusive suit instituted by the in- tended grantee of land against the proposed grantor, ostensibly to recover by title paramount the land proposed to be conveyed, in which by collusion and agreement of the parties a judgment is given by default to the grantee under a pretended paramount claim. ^^ § 177. Later Assaults upon Entails in England. The armor of these "coarcted inheritances" (as an old writer quaintly styles them) having been thus once pierced by Taltarum's Case, attacks were soon made upon them in other directions, some of which it would scarcely be profitable at this day to mention.^" By the statute 26 Hen. VIII, c. 14, all estates of inheritance (under which words estates tail were covertly included) are de- clared forfeitable for treason. And by the statute, 32 Hen. VIII, c. 36, a fine duly levied by the tenant in tail was declared to be a complete bar to the fee tail, as to all persons claiming under it; thus repealing pro tanto the statute de donis, which had expressly prohibited the use of a fine to bar the entail.^^ Finally, by 3 and 4 Wm. IV, c. 74 (A. D. 1833), fines and common recoveries are abolished, and estates tail are permitted to be con- veyed by a mere deed enrolled in the court of chancery, but not by will.^^ § 178. Existing State of Entails in England. Since 3 and 4 Wm. IV, c. 74 (A. D. 1833), estates tail have been made much more easily and cheaply barrable in England than formerly, all that is necessary being a simple deed executed by the tenant in tail and enrolled in chancery; but they cannot under this statute be barred by will.^' 29 2 Min. Insts. 93; 2 Bl. Com. 117, 357 et seq. ; 1 Washburn, Real Prop. 102, 103. A somewhat similar mode of conveyance at common law was a fine, which differed from a common recovery in that the land went to the pretended claimant (the proposed purchaser) — not by default — but by a com- promise of the claim, upon which the court would render a judgment in favor of the purchaser for so much of the land to be conveyed as was embraced by the compromise. 1 Washburn, Real Prop. 102. Fines originated at a much earlier period than common recoveries, and were in use at the time the statute de donis was enacted, so that the statute took pains expressly to prohibit the conveyance of estates tail by fine. Re- coveries, being introduced at a later period, were not mentioned in the statute de donis, and therefore could be legitimately admitted by the courts as a means of barring the entail. 30 See 2 Min. Insts. 94. 312 Min. Insts. 94; 2 Bl. Com. 118, 348, et seq. 32 2 Min. Insts. 94; Williams, Real Prop. 46, 49, et seq. 3 3 2 Min. Insts. 95 ; Williams, Real Prop. 49 et seq. (158) Gh. 10] FEE TAIL — INCIDENTS. § 179 Since estates tail have become so easily barrable, lands can now in England be kept entailed only by frequent resettlements on successive generations by means of marriage settlements, which have consequently become very common there. ^^ These settlements are usually in the form of a conveyance "to the husband and wife for their lives, remainder to the survivor for life, remainder to the first and other sons of the marriage in tail, remainder to the daughters of the marriage in tail, remainder to the right heirs of the grantor" (usually the husband)."^ It will be observed (for future reference) that the longest period during which this land can be kept inaliei;iable (by common recovery or under 3 and 4 Wm. IV, c. 74, above alluded to) is until the first son of the marriage becomes twenty-one. Immediately thereupon he may convey his estate tail by common recovery or (in later times) by deed enrolled in chancery.'^ § 179. Incidents of Estates Tail. The most prominent inci- dents of the fee tail, as it now exists in England are the following : 1. Tenant in Tail Not Liable for Waste. — Waste is defined to be "a permanent injury to the inheritance arising otherwise than by an act of God or a public enemy." ^' Waste, therefore, can never be alleged of one who owns an estate of inheritance, as does a tenant in tail.^* 2. Estate Tail Subject to Curtesy and Dower. — This also arises from the fact that an estate tail is an estate of inheritance, in all of which estates possessed during the coverture the consort has dower or curtesy.^" 3. Estates Tail Barrable. — This was not originally an incident of the fee tail, but, being first allowed in Taltarum's Case by means of common recoveries, has of later years been permitted quite freely by deed enrolled in chancery, though not by will.*" 4. Estate Tail Not Subject to Merger. — It is a general rule of the law, presently to be discussed,*^ that when a smaller and a larger estate come into the same hands, the larger merges the smaller, and the latter is totally extinguished. But this rule does not apply if the smaller estate is a fee tail, which is not merged 3*1 Washburn, Real Prop. 104. 35 2 Min. Insts. 272; 2 Bl. Com. 174, note (21); Long v. Blackall, 7 T. R. 101. 3 6 See post, § 700. sr Post, § 379. 38 2 Min. Insts. 94, 95; 2 Bl. Com. 115, 116; 1 Washburn, Real Prop. 112. 39 2 Min. Insts. 95 ; 2 Bl. Com. 116. See post, §§ 208, 220, 237. *o Ante, §§ 177, 178 ; 2 Min. Insts. 95. *i Post, § 665 et sect. (159) § 179 FEE TAIL INCIDENTS. [Ch. 10 in the fee simple, though both be in the same hands. On the con- trary, the fee tail remains a distinct estate, as before, descendible to the issue only and (originally at least) inalienable from them (now alienable by deed enrolled).*^ 5. Estate Tail Forfeitable for Treason. — This incident, not orig- inally belonging to the fee tail, attaches thereto by virtue of the statute 26 Hen. VIII, c. 13.*^ § 180. Estate Tail after Possibility of Issue Extinct. This is in reality a life estate created by act of the law. It arises out of estates tail special only, as where land is given "to A. and the heirs of his body of his present wife, M., begotten," and M. dies without issue. There is now a complete extinction of all possibility of is- sue to succeed to the property, and A.'s new interest is described, by a long, but needful, periphrasis, as an "estate tail after possibility of issue extinct." After the death of M. without issue, A. is in truth no more than a tenant for life, but with some of the privileges of a tenant in tail, as he previously was. Thus, for example, he is dispunishable for waste, out of regard to the inheritance of which he was lately seised.^* § 181. The Fee Tail in the United States Generally. Very gen- erally in the United States the fee tail has been abolished, or con- verted into some other form of estate, by statute, upon the theory that family estates of this kind are not in the main conducive to the welfare of a republic. In many of the states the fee tail has been converted into an estate for life, with remainder in fee simple to the issue ; in others the estate tail has been converted outright into the fee simple. In only two or three (of which Delaware and Maryland are instances) is the estate tail retained, and even in those states the tenant in tail may convey in fee simple. In South Carolina the peculiar doctrine is held that the statute de donis was never in effect there ; the an- cient fee conditional of the common law being created upon a conveyance to one "and the heirs of his body." *^ *2 2 Mm. Insts. 95 : 1 Washburn, Real Prop. 113. 43 Ante, § 177; 2 Min. Insts. 94, 95. a 2 Min. Insts. 114; 2 Bl. Com. 124, 125, note (6). 4 5 See 1 AVashburn, Real Prop. 117, note, wliere the laws of tie various states touching the fee tall are collected. (160) CHAPTER XI. LIFE ESTATES IN GENERAL. § 182. General Nature of Life Estates. 183. Life Estates by Act of the Law. 184. Life Estates by Act of the Parties — ELxpress or Implied. 185. Life Estates Cieated by Ti-ausfer, Keservation or Exception, 186. 1. E.states for Tenant's Own Life. 187. 2. Estate Pur Auter Vie. 188. Comniou and Special Occupancy Incident to Kstates Pur Auter Vie. 189. Doctrine as to General and Special Occupancy. 100. 3. Estates Not Expressly for Life, but Which May Last for Life. 191. Incidents of Life Estates in General — Enumeration. 192. I. Life Tenant's Eight to Eiablements. 193. II. Life Tenant's Right to Estovers. 194. III. Life Tenant's Power to Aliene the Life Estate. 193. IV. Forfeiture of Life Estate for Certain Defaults of the Tenant 196. 1. "Tortious" Alienation by Tenant of Greater Estate than He Has. 197. 2., Tenant's Claim in Court of Record of Greater Estate than He Owns. 198. 3. Tenant's Disclaimer of Landlord's Tenure. 199. V. I..ife Tenant's Liability for 'R'^aste. 200. VI. Life T'enant's Right to Remove Fixtures. 201. VII. Life Estates Subject to Jlerger. 202. VIII. Life Tenant's Duties and Rights as to Repairs and Improve- ments. 203. IX. Life Tenant's Duty to Keep Down Interest and to Pay In- cumbrances. 204. Same — Mode of Ascertaining Present Value of a Life Estate. 20.5. X. Life Tenant's Duty to Pay Taxes and Local Assessments. 206. XI. Life Tenant's Duty to Defend the Title, if Attacked. 207. XII. Apportionment of Rent upon Life Tenant's Death, in Case of a Sublease. § 182. General Nature of Life Estates. Life estates, being es- tates of indeterminate duration, are freehold estates, and must there- fore pass at common law by livery of seisin, but yet are not estates of inheritance, since they terminate upon the death of the tenant or of another living person. They are classified, as has already been sho'wn,^ as follows : I. Estates for Life by Act of t-he Parties. 1. Estates for the Tenant's Own Life. 2. Estates for the Life of Another (Pur Auter Vie). 3. Estates 'Which. May Last for Life, but are Terminable Sooner by a Contingency. II. Estates by Act of the Law. 1. Estate Tail after Possibility of Issue Extinct. 2. Estate by the Curtesy. 3. Estate in Dower. 1 Ante, § 137. Minob&'SV.Real Pkop.— 11 (161) § 183 LIFE ESTATES BY ACT OF LAW. [Ch. 11 § 183. Life Estates by Act of the Law. When created by act of the law itself, no livery of seisin is necessary even at common law, for that implies an act of the parties; but the law itself vests the estate in the tenant, without the necessity for a deed or act on the part of the latter. § 184. Life Estates by Act of the Parties — Express or Implied. A life estate arises by act of the parties, when it is the result of some agreement or transfer, to be accompanied always at common law by livery of seisin or (in the case of incorporeal hereditaments which did not lie in livery) by grant.^ Hence it follows that life estates created at common law by act of the parties, at least as to corporeal property, must always be express, and could never be implied without words of grant. But though the intent be to create an estate of inheritance, if the words of grant are not sufficient for that purpose, and yet there is a conveyance to the grantee, he will at common law take a life estate, as in case of a grant "to A." (with- out words of limitation), or even "to A. in fee simple."^ In wills, however, which were introduced into the English law of real property at a much later stage, the intention of the testator was looked to rather than the presence or absence of any particular tech- nical words ; * and, since wills did away with the necessity for livery of seisin as to the lands devised, the courts had no difficulty in rais- ing up life estates therein by mere implication, where the implica- tion is a necessary one. Thus, a devise "to the testator's heir after the death of testator's wife" vests a life estate in the wife, though no interest be expressly given her. For since the testator's heir is to take only after the wife's death, and the testator has made no ex- press provision for the disposition of the land in the meanwhile, he must have intended that it should go to the wife till her death. In- deed, there is no one else to whom it could go.^ But let it be observed that in construing a will conjecture must not be taken for certainty. The implication, which may thus abro- gate the technical rules of the common law, must be not only a pos- sible, but a necessary, implication, which means, however, not a natural necessity, but so strong a probability of intention that a contrary design would be absurd, and therefore cannot be imputed to the testator. Hence, in the example above supposed if the testa- tor should give the land to a stranger after his wife's death, no life estate would be implied in the wife, for meanwhile until the wife's death there is the testator's heir to whom the land may go.° 2 Ante, § 132. a Ante, §§ 139, 140. * Ante, § 143. B 2 Min. Insts. 1075 ; 2 Bl. Com. 381, note (23). «2 Min. Insts. 1073; 2 Bl. Com. 381, 382, note (23), (25); 1 Tli. Co. Lit. (162) Ch. 11] LIFE ESTATES — FOE TENANT'S OWN LIFE. § 186 § 185. Life Estates Created by Transfer, Reservation or Excep- tion. While life estates by act of the parties are usually created by grant or devise, it is not essential that they should be so created. They may arise also by reservation, and sometimes by exception.'' Thus, upon a lease of land for the tenant's life, a rent may be re- served to the lessor during the term. This would constitute in the lessor an estate in the rent for the life of the lessee (an estate pur auter vie) .' So one having a fee simple in land may convey the same to anoth- er in fee to commence after the grantor's death. The estate remain- ing in the grantor would be an estate for his life, not by grant, nor by reservation, but by exception.^ § 186. 1. Estates for Tenant's Own Life. A devise or convey- ance to one for his life will always pass to the grantee an estate for his life at least, and may pass even a fee simple, if the absolute pow- er of disposition is conferred upon the life tenant.^" An estate thus limited for the tenant's life was liable at common law to be terminated by the civil, as well as the natural, death of the tenant. Hence conveyances and devises are often expressed to be "during the natural life" of the tenant. But in this country, no such distinction exists, there being with us no such thing as civil death. The word "natural," therefore, is now mere surplusage. "^^ If an estate be conveyed "to A. for life," a doubt may arise wheth- er this is intended to pass an estate for the life of the grantee or for the life of the grantor. The general rule of construction in such case is that the grant is to be construed most strongly against the gran- tor, to pass the greatest estate that can reasonably pass under the words chosen by the grantor in making his conveyance, provided such an interpretation of the ambiguous language works no wrong to third persons. Hence a conveyance such as that above mention- ed usually passes an estate for the grantee's life, that being as to him more beneficial than an estate for any one else's life. But if the grantor himself had only an estate for his own life, it would be other- wise, and A. would be construed to take only an estate for the gran- 547, note (N) ; Wilkinson v. Adam, 1 Ves. & B. 466 ; Coryton v. Helyar, 2 Cox, 348. 7 The distinction between reservations and exceptions- has already been pointed out. Ante, §§ 94, 144. 8 Ante, § 137. » 1 Washburn, Real Prop. 122. 10 Ante, § 151. 112 Mln. Insts. 100; 2 Bl. Com. 121; 4 Bl. Com. 380; Newsome v. Bowyer, .'.,Wms. 38; Lean v. Schutz, 2 Wm. Bl. 1198; Carrol v. Blencow, 4 Esp. 27; Branch v. Bowman, 2 Leigh (Va.) 170; Platner t. Sherwood, 6 Johns. Ch. (N. X.) 118. (163) § 187 LIFE ESTATES — PUR AUTER VIE. [Ch. 11 tor's life, for the latter cannot be presumed to have intended to work a wrong upon those entitled to the property after his death. ^^ § 187. 2. Estate Pur Auter Vie. An estate for the life of a per- son other than the grantee, being of indeterminate duration, is an estate of freehold. The tenant is styled a tenant pur auter vie, and the party during whose life the estate is to be held is denominated cestui que vie.^' § 188. Same — Common and Special Occupancy Incident to Es- tates Pur Auter Vie. Upon a conveyance "to A. for the life of B.," should A. die before B., the common law found itself in a quandary as to the ownership of the estate. It could not go to A.'s heirs, be- cause it is not an estate of inheritance ; it could not go to his per- sonal representative, because it is a freehold, and not a chattel in- terest; it could not return to the grantor, for that would be repug- nant to the grant (which takes the estate out of the grantor until B.'s death) ; it could not escheat, for only the fee simple escheats. In this condition of things the common law was forced to fall back up- on elemental principles, and to throw the property open to the occu- pancy of thfe iirst comer who should possess himself of it. This was called general or common occupancy.^* But if the grant were "to A. and his heirs during the life of B.," the case was somewhat altered at common law. True, it is still not an estate of inheritance (notwithstanding the word "heirs"), for it is granted only for B.'s life ; but it is manifest that the grantor has here foreseen the contingency that A. might die before B., and has ex- pressly provided for it by naming the heirs of A. as the persons to take upon his death in the lifetime of cestui que vie. Accordingly^ the common law enforces that intention, and gives the land to A.'s heirs, who take, not indeed as heirs — that is, by descent (for it is not an estate of inheritance) — but as special occupants named by the grantor himself, thus obviating the mischievous and turbulent tendencies of common or general occupancy whenever the parties, were prudent enough to insert such a limitation. ^° 12 2 Min. Insts. 98; 1 Th. Co. Lit. 620; 2 Bl. Com. 120; 1 Washburn, Real Prop. 121. 13 2 Min. Insts. 98; 2 Bl. Com. 120. Perliaps the most usual instances of estates pur auter vie arise where a tenant for his own life assigns his interest to another, and where upon a lease for the tenant's own life, rent is reserved payable throughout the term. In the first instance the assignee is tenant of the land for the life of his assignor, and in the second the landlord is en- titled to the rent during the life of the tenant. 1^2 Min. Insts. 98, 99; 2 Bl. Com. 259; 1 Th. Co. Lit. 625, 626, note (H) ; 1 Washburn, Real Prop. 126. IS 2 Min. Insts. 99; 2 Bl. Com. 259; 1 Th. Co. Lit 326, note (I); 1 Wash- burn, Real Prop. 127. a64) Ch. 11] LIFE ESTATES WHICH MAY LAST FOR LIFE. § 190 The heirs in such case, however, do not take as purchasers, but as representing their ancestor (though not by descent).^" Hence the ancestor (the tenant pur auter vie) is at liberty to convey all the estate he has in the land, and if he afterwards die, living cestui que vie, his heirs, do not take as purchasers, but are bound by their ancestor's conveyance, the assignee holding the estate until the death of cestui que vie.^' But in order that the assignor's entire interest should thus pass, leaving nothing in his heirs, it seems that he himself must convey to his assignee "and his heirs." Otherwise, upon the death of the assignee, living cestui que vie, the heirs of the original tenant pur auter vie are entitled as special occupants. Thus, in Doe v. Robinson,^* an estate was limited to A. and his heirs during several lives. A. devised to J. (without words of limi- tation) and J. died before cestui que vie. It was held that the heirs of A., not the heirs of J., should take the remnant of the estate. § 189. Same — Doctrine as to General and Special Occupancy. In the United States, as well as in England, statutory provisions have come to the aid of the common law, and have abolished the absurd doctrine of general or common occupancy. Some of these statutes make the estate pur auter vie descendible, and others de- clare that it shall be treated and administered as a chattel interest.^" § 190. 3. Estates Not Expressly for Life, but Which May Last for Life. Such estates do not include estates expressly for life, but liable to be prematurely defeated by the happening of a condition subsequent. Here, as in the case of a fee qualified and elsewhere, care must be taken to distinguish between an estate upon condition subsequent and an estate upon special limitation.^" It is the latter class of estates we are now to consider. Thus, a conveyance "during coverture," or "until marriage," or "durante viduitate," or "as long as Z. resides abroad," creates an estate of this character.^^ But a conveyance "to A. for life, but if he marries X. his estate to cease and determine," is an express life estate upon con- dition subsequent, and does not belong to the class of life estates we are now considering. It must be noted, however, that to create a life estate of this class it is not enough that the estate may last during a life, or indeed that it must necessarily endure throughout a life. Thus, a term for one thousand years would embrace the lives of many generations, but it 16 2 Min. Insts. 99. i' See 1 Washburn, Real Prop. 127. 18 8 B. & Cr. 296. See, also, Allen v. Allen, 2 Dr. & W. 307. 19 1 Washburn, Real Prop. (6th Ed.) §§ 234, 23.5, where the various statutes are collated. 20 See ante, § 158; post, § 479. 21 2 Min. Insts. 100; 2 Bl. Com. 121. (105) § 191 LIFE ESTATES — INCIDENTS IN GENERAL. [Ch. 11 is nevertheless not a life estate, but a term for years only.^^ And the same may be said of a conveyance "to A. for one hundred years if he shall so long live." While such an estate is determinable by the death of A., if it happens before the expiration of the hundred years, the ultimate termination of the estate is a fixed and certain date, which constitutes it a leasehold, not a freehold, estate.^' § 191. Incidents of Life Estates in General — Enumeration. In case of life estates created by act of the law as well as those created by act of the parties, there are certain incidents which are annexed to the estate by the law itself, unless the parties, in case of the latter class of life estates, by stipulation deprive the estate of some of these incidents ; or the parties may annex to such estates by express covenants, conditions or stipulations such incidents as they may see fit, not contrary to law.^* § 192. I. Life Tenant's Right to Emblements. The subject of emblements has already been fully discussed in another connection, and the student is advised at this point to turn to that discussion.^^ It suffices here to state that, since every life estate is in its very na- ture an estate which must terminate unexpectedly, emblements are allowed to the life tenant's personal representative, or, if the estate be pur auter vie, to the tenant himself; provided that the crops are sown by the tenant himself and that he has not terminated the es- tate by his own act.^"* The only exception to this general principle arises at common law in the case of a tenant in dower, whose personal representative was denied emblements, because the widow was presumed to have gotten the crops growing on her dower lands at the husband's death. ^^ But by the English statute of Merton it is provided that emblements of dower lands shall pass and may be disposed of like those on any other lands held for life.^^ § 193. IL Life Tenant's Right to Estovers. This subject, also, has been previously discussed, and to that discussion the student is now referred.^" The right of the life tenant, as well as that of a tenant for years or at will, is fully established to cut as much wood, etc., on the premises as may be necessary to supply the needs of the land and buildings leased in the matter of fuel, of repairs, etc.*" 2 2 Ante, § 129. 2 3 Ante, § 129; 2 Min. Insts. 191; 3 Bl. Com. 143; 1 Th. Co. Lit. 628, 632. 24 2 Min. Insts. 100; 2 Bl. Com. 122; 1 Th. Co. Lit. C24. 2 6 Ante, § 41 et seq. 26 2 Min. Insts. 103, 105, et seq.; 1 Washburn, Real Prop. 134. 27 Ante. § 44; 2 Min. Insts. 104; 1 Washburn, Real Prop. 134. 2 8 20 Hen. Ill, c. 2. 2 8 Ante, § 39. 3» 2 Min. Insts. 101; ante, § 39. (160) Ch. 11] LIFE ESTATES POKFEITUEB. § 195 It is to be remembered, also, that this right is not to be enjoyed by the tenant in common with the owner, hke a profit a prendre, but exclusive of him, at least in the absence of express stipulation, so that the landlord is a trespasser, and may be sued as such by the tenant, if he attempts to enter and cut down the trees, etc., during the continuance of the estate. °^ § 194. III. Life Tenant's Power to Aliene the Life Estate. In discussing the incidents of a fee-simple estate, it was pointed out that the power to aliene the fee can be restricted only by reasonable conditions as to persons and time."^ But in the case of life estates it is otherwise, and according to the better opinion the life tenant may be absolutely restrained from all assignment of the estate during his tenancy — at least, where the restriction is imposed for the protection of the remainderman or re- versioner.^^ In the absence, however, of conditions restraining the assignment of the interest, a life estate is as freely alienable as the fee simple,'* though nothing more than an estate for the tenant's life can pass to the assignee, unless the life tenant's estate be coupled with a power to lease for a longer term, or for a term certain, or with a power to convey in fee, in which cases the life tenant's death would not neces- sarily terminate the assignee's estate.'^ § 195. IV. Forfeiture of Life Estate for Certain Defaults of the Tenant. There are certain acts of a tenant for life or years which are so detrimental to the reversioner or remainderman that the law annexes to every such estate an implied condition that they shall not be done ; and if the tenant does these acts his estate is thereby forfeited to the remainderman or reversioner, who may enter for the breach of the implied condition. '° The acts of the tenant, which are thus grounds of forfeiture of his estate, are at common law: (1) The tenant's alienation by a "tor- tious" conveyance of a greater estate than he has ; (2) his claim in a court of record of a greater estate than he is entitled to ; and (3) his disclaimer in a court of record to hold of the landlord. '' 31 2 Min. Insts. 101. See post, § 334. 3 2 Ante, § 151. See post, § 517 et seq. 3 3 Post, § 525'; 2 Min. Insts. 290, 291. 3^2 Min. Insts. 291; Criswell v. Grumbling, 107 Pa. 408; Hay ward v. Kinney, 84 Mich. 591, 48 N. W. 170. 3 5 2 Min. Insts. 770; 2 Th. Oo. Lit. 433, note (C. 1) ; Lehndorf v. Cope, 122 III. 317, 18 N. E. 505 ; McLendon v. Ilorton, 95 Ga. 54, 22 S. E. 45. 3 6 2 Min. Insts. 263 et seq. ; post, § 467. 37 2 Min. Insts. Ill et seq., 263 et seq. (167) § 196 LIFE ESTATES — TORTIOUS CONVEYANCE. [Ch. 11 § 196. Same — 1. "Tortious" Alienation by Tenant of Greater Estate than He Has. At common law the conveyances of feoff- ment with livery of seisin, fine, and common recovery were attended by a peculiar consequence. These conveyances were regarded as particularly solemn acts, so much so, indeed, that when executed by one in possession of land they were held at common law to import prima facie verity at least. Hence, if they purported to pass a fee simple (for example), they prima facie passed that estate, regardless of the real interest possessed by the grantor or his power of aliena- tion. The prima facie title to such estate as appeared upon the face of these conveyances being thus vested in the grantee, if that estate were larger than the grantor possessed, his remainderman or reversioner would be compelled to abandon his right to enter upon the land peaceably at the termination of the grantor's estate, and must resort to an action at law to rebut the prima facie title vested by such conveyance in the grantee of the tenant. And, since the action at law was much more tedious and expensive than the simple entry after the termination of the tenant's estate, it was regarded as a grievous wrong done by the tenant to the reversioner or re- mainderman. Hence these particular conveyances were known at common law as "tortious conveyances," and by way of punishment therefor the tenant's estate was at once terminated (and with it his assignee's interest) ; the remainderman or reversioner acquiring the right to enter thereon at once, just as though the life tenant had died.^s But in case of such forfeitures third persons who had already dealt with the life tenant in respect to his proper estate were saved harmless, and hence the remainderman or reversioner, upon such entry, was held to take the estate subject to any charges or incum- brances properly placed upon the estate by the life tenant ; the land not being freed therefrom until the life tenant's death. ^° Thus if the life tenant, before making a tortious conveyance, had sublet the premises for ten years, though the remainderman or reversioner would succeed to the estate immediately upon the tortious convey- ance, he could not oust the subtenant, but would be entitled to re- ceive the rent from him. The tenant for life cannot by his own act defeat an interest which he himself has lawfully created.*" The only conveyances deemed "tortious" at common law were the three above mentioned ; that is, the feoffment, fine and recovery 38 2 Min. Insts. Ill; 2 Bl. Com. 274; Stump v. Findlay, 2 Rawle (Pa.) 168, 19 Am. Dec. 632 ; French v. Rollins, 21 Me. 372 ; Emerlck v. Tavener, 9 Grat. (Va.) 220, 225, 58 Am. Dec. 217. 39 2 Min. Insts. 267, 268. *o 2 Bl. Com. 275. (108) Ch. 11] LIFE ESTATES DISCLAIMEE OF TENURE. § 198 (none of which are now in practical use in the United States). No other conveyance would have the effect of forfeiture, because the remainderman or reversioner suffers no harm except where the con- veyance is tortious. In other cases, even at common law, no greater estate could pass to the alienee than the tenant has the right to con- vey. Hence, if the convej^ance were a conveyance under the statute of uses, though purporting to pass a fee simple, nothing would ac- tually pass, even prima facie, save the tenant's own life estate.*^ § 197. Same — 2. Tenant's Claim in Court of Record of Greater Estate than He Owns. This was a ground of forfeiture at common law, and, there being no statute abolishing it, it is believed to have the same effect at present in this country.*^ Thus, if a tenant for life sues for an estate in fee simple, or any estate greater than his own, or so pleads in court as expressly or by implication to assert such greater estate to be in him, these are virtual disclaimers of ten- ure, punished by forfeiture of the life tenant's estate, or rather oper- ating as a termination of the tenant's interest by his voluntary re- jection of the title. *^ § 198. Same — 3. Tenant's Disclaimer of Landlord's Tenure. Such a disclaimer may take place in a court of record or in pais. If a tenant for life or for years neglects to render the lord the services or rent due, and upon an action brought to recover them disclaims in a court of record to hold of the lord, this would by the common law always induce a forfeiture of his estate, for reasons similar to those mentioned in the preceding sections, or rather it may be re- garded as a voluntary and solemn denial by the tenant that he is en- titled to his estate, which estops him from afterwards relying upon it, and makes him thenceforth a trespasser. This doctrine, it is believed, is as applicable in this cotintry as at common law.** And if the disclaiming tenant wa,s possessed of a term for years (but not in case of a freehold), it seems that the original common law would forfeit the tenant's estate for a disclaimer in pais as well *i 2 Min. lusts. 11] ; 2 Th. Co. Lit. 207, 581, note (B) ; Gilbert, Uses, 102, 140 ; Seymor's Case, 10 Co. 96a ; Bmerick v. Tavener, 9 Grat. (Va.) 220, 225, 58 Am. Dec. 217; Pendleton v. Vandevier, 1 Wash. (Va.) 381; Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178 ; Jackson v. Mancius, 2 Wend. (N. Y.) 357. 42 2 Min. Insts. 112. *3 2 Min. Insts. 112; 2 Bl. Com. 276; 2 Th. Co. Lit. 208, note (E). But see 1 Washburn, Real Prop. 126. *4 2 Min. Insts. 112 ; 2 Bl. Com. 275 ; 2 Th. Co. Lit. 208, note (D) ; Willison v. Watkins, 3 Pet. 47, 48, 7 L. Ed. 596 ; Walden v. Bodley, 14 Pet. 156, 162, 10 L. Ed. 398 ; Merryman v. Bourne, 9 Wall. 592, 601, 19 L. Ed. 683 ; Emerick V. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217. (169) § 198 LIFE ESTATES— DISCLAIMER OP TENURE. [Ch. 11 as in a court of record.*^ In modern times a life tenant's disclaimer in pais is as operative as that of a tenant for years. The doctrine is applicable at the present day to all tenants, whether the disclaim- er be in a court of record or in pais/^ and from that moment the tenant's possession becomes adverse to the landlord, provided the disclaimer be clear, positive and continued, and known to the land- lord.*^ The same general principle applies in all cases in which the land- . lord seeks to enforce his rights against the tenant, for example, in an action to recover the arrears of rent. The tenant will not be permitted, in order to escape the liability imposed by the relation of landlord and tenant, to deny the landlord's title — that is, he is estopped to deny it — save in certain cases where the landlord's ti- tle has actually ceased before the right sought to be enforced has accrued, or where at that time it has been supplanted by the better title of another, etc. This principle of estoppel to deny the land- lord's title will be discussed hereafter.** § 199. V. Life Tenant's Liability for Waste. Waste is any per- manent injury to the inheritance, not occasioned directly by an act of God, or of a public enemy, and will be considered much more fully hereafter.*^ Waste may arise from neglect merely, or from acts committed by a stranger (who in legal contemplation is presumed to have the ac- quiescence of the tenant), in which cases it is termed permissive waste ; or it may arise from the voluntary and deliberate act of the tenant, such as the cutting of timber, etc., in which case it is volun- tary waste. °° Thus, if a house be unroofed by a tempest, this is not waste, because occasioned directly by an act of God; but to permit any further incidental injury to accrue for want of a roof, temporary or permanent, is permissive waste. °^ At common law those persons only were responsible for waste who, not having the inheritance (the owner of which was of course IB Jackson v. A'incent, 4 Wend. (N. Y.) 633, 636, 637. See Bmerick v. Tav- ener, 9 Grat. (Va.) 220, 58 Am. Dec. 217. * 6 Jackson v. Richards, 6 Cow. (N. Y.) 617, 620; Merryman v. Bourne, 9 Wall. 592, 601, 19 L. Ed. 683 ; Walden v. Bodley, 14 Pet. 156, 162, 10 L. Ed. 398. *7Neff V. Ryman, 100 Va. 523, 42 S. B. 314; Erskine v. North, 14 Grat. (Va.) 60, 66 ; Creekmur v. Creekmur, 75 Va. 430. 48 Post, § 357. 49 Post, § 379 et seq. 00 Post, §§ 381 et seq., 391 ; 2 Mln. Insts. 112 ; 3 Th. Co. Lit. 234, note (F) ; 1 WashbTirn, Real Prop. 146 et seq. 61 Post, §' 386; 2 Min. Insts. 112. (170) Ch. 11] LIFE ESTATES MERGER. § 201 incapable of committing it), had come into the possession by act of the law, either as tenants by the curtesy, in dower, or as guardians in chivalry. Tenants who came in by act of the parties were re- strained otiLy by their covenants. But the statute of Marlebridge, 52 Hen. Ill, c. 23, made all tenants for life or years liable for waste. °^ The penalty for waste at common law is merely the damage ac- tually sustained, as estimated by a jury. But, that being found in- sufficient to prevent it, the statute of Gloucester, 6 Edw. I, c. 5, di- rected that the tenant should forfeit the thing (i. e., the place) wast- ed, and in addition three times the amount of the damage actually sustained by the owner of the inheritance.^' § 200. VI. Life Tenant's Right to Remove Fixtures. The gen- eral nature of fixtures, and the principles controlling their remova- bility by a tenant, who has placed them upon the leased premises for his own profit and convenience, without making him liable as for waste, have been discussed in earlier sections of this work.°* In this connection the student need only be reminded that the attaching of fixtures by a life tenant furnishes more of a basis for the presumption that the fixture is a real fixture, intended as a per- manent addition to the freehold, than where they are attached by a tenant for years ; and hence there is a less degree of removability as between tenant for life and the reversioner or remainderman than there is as between landlord and tenant for years. ^° § 201. VII. Life Estates Subject to Merger. If a life estate come into the same hands as hold the fee simple or other freehold interest, and by the same sort of title, the general rule is that the greater freehold merges or extinguishes the lesser. Hence, if a fee simple, fee qualified or fee tail pass by descent, conveyance or devise to a life tenant, the life estate previously in the tenant is merged in the greater estate thus coming into his hands. ^* If the inheritance thus granted to the life tenant be granted him upon a condition subsequent, the merger takes place notwithstand- 5 2 Post, § 390 et seq. ; 2 MIn. Insts. 112, 113; 2 Bl. Com. 282 et seq.; 3 Th. Co. Lit. 241, note (M). 5 3 Post, § 392; 2 Min. Insts. 113; 2 Bl. Com. 283, 284; 3 Th. Co. Lit. 241, note (M). 5-4 Ante, § 22 et seq. 6 6 Ante, § 36. 5 1 Washburn, Real Prop. 124; Bradford v. Griffin, 40 S. 0. 468, 19 S. E. 76; Hovey v. Nellls, 98 Mich. 374, 57 N. W. 255; Mudd v. Mullican, 12 S. W. 263, 11 Ky. Law Rep. 417 ; Bennett v. Trustees JI. E. Church, 66 Md. 36, 5 Atl. 291 ; Harrison v. Moore, 64 Conn. 344, 30 Atl. 55. (171) § 201 LIFE ESTATES MEKOER. [Ch. H ing the condition. And the subsequent breach of the condition will, it seems, deprive the grantee not only of the inheritance thus condi- tionally conveyed to him, but also of his original life estate, since that has been merged into the inheritance and extinguished. ^'^ As between two life estates, since an estate for the tenant's own life is always regarded, as to him, as more beneficial and therefore a larger estate than an estate pur auter vie, the latter merges in the former, and upon the life tenant's death, living the former cestui que vie, no interest remains to him.^' On the other hand, if a term for years and a freehold estate come into the same hands, the freehold usually merges and extinguishes the term for years. ''^ § 202. VIII. Life Tenant's Duties and Rights as to Repairs and Improvements. In the absence of express stipulation, it is not the duty of a tenant for life or for years to repair the premises further than is necessary to prevent liability for waste. A fortiori, he is not compellable to make improvements.*" On the contrary, the question has rather been in these cases whether the life tenant or his personal representative or assignee can recover of the reversioner or remainderman the value of the re- pairs or improvements he has voluntarily placed upon the premises. The better view is that at common law he has no such right.'"- Thus, if a life tenant conveys to another a fee simple (which in law would only operate as an assignment of the grantor's life estate), and the assignee places permanent improvements upon the premi- ses, the reversioner is at common law entitled to the improvements as well as to the land, and the assignee is entitled to no compensa- tion therefor."^ 7 1 Washburn, Real Prop. 124; Co. Lit. 218b. 58 2 Min. Insts. 198; 3 Preston, Conv. 225; 1 Washburn, Real Prop. 123; Boykln v. Ancrum, 28 S. C. 480, 6 S. E. 305, 13 Am. St. Rep. 698. But see Rosse's Case, 5 Co. 13a ; Snow v. Boycott, [1892] 3 Ch. 110. In the absence of any other method of determining the relative extent of the two freeholds, as in the case of the two estates pur auter vie, it is probable that recourse must be had to the principle that, as between two estates of the same de- gree, the reversionary estate shall be presumed the greater, merging the other estate. See 2 Min. Insts. 197, 198. 09 2 Min. Insts. 197; 2 Th. Co. Lit. 557, note (K). 8 Ante, § 199; Brough v. Higgins, 2 Grat. (Va.) 408, 412; Kearney v. Kearney, 17 N. J. Eq. 59, 70. But see In re Steele, 19 X. J. Eq. 120. oiOorbett v. Laurens, 5 Rich. Eq. (S. C.) 301; Wilson v. Parker (Miss.) 14 So. 264; Merritt v. Scott, 81 N. C. 385; Hagan v. Varuey, 147 111. 281, 35 N. E. 219. See Datesman's Appeal, 127 Pa. 348, 17 Atl. 1086, 1100 ; Cald- well V. Jacob, 27 S. W. 86, 16 Ky. Law Rep. 21. 92 Ante, § 21 ; Hagan v. Varney, 147 111. 281, 35 N. B. 219. (172) Ch. 11] LIFE ESTATES — INTEREST A^-D INCUMBIiANCBS. § 203 If premises already insured against fire come to one for his life, with remainder or reversion in another, and a fire occurs, entitling the owner to the insurance money in whole or in part, questions may arise as to the ownership of the insurance money, and the duty to apply it to the rebuilding of the house or the repairing of the damage caused by the fire."'' In Haxall v. Shippen,''* it was held that, where the building was totally or nearly destroyed, the realty was in effect converted into personalty, taking the form of the insurance money, and the parties thereafter had a like interest in the insurance money that they be- fore had in the building; that is, the tenant for life was entitled to the use of it or the income from it for his life, and the reversioner or remainderman to the principal upon the life tenant's death. And the life tenant cannot by applying the money to the rebuilding of" the house (without his successor's assent) defeat the successor's right to the principal of the insurance money after the life tenant's death. Nor, on the other hand, can the reversioner or remainder- man compel the life tenant to apply the money to the rebuilding of the house. Both must consent in order that the insurance money may be legitimately so employed. But it is otherwise if the extent of damage to the house by fire is comparatively small. In Brough v. Higgins,"^ under such cir- cumstances, when the life tenant had repaired the building at her own expense, it was held that she was entitled to be fully reimburs- ed out of the insurance money. §, 203. IX. Life Tenant's Duty to Keep Down Interest and to Pay Incumbrances. If property comes to a life tenant already subject to a mortgage or other incumbrance, it is the duty of the life tenant to pay the interest' annually accruing on the debt so se- cured until it is paid off — ^throughout his whole life, if the incum- brance does not mature sooner. If he fails to do so, he is liable to the reversioner or remainderman for any loss that may result."" But if the debt falls due and the incumbrance is foreclosed in the tenant's lifetime, as between himself and the reversioner or remain- derman, he is not bound to pay the whole principal, but only so 6 3 Haxall V. Sbippen, 10 Leigh (Va.) 536, 34 Am. Dec. 745; Brough v. Hig- gins, 2 Grat. (Va.) 408. 6 4 10 Leigh (Va.) 536, 34 Am. Dec. 745. 65 2 Grat (Va.) 408. es 1 Washburu, Real Prop. 129; Banks v. Sutton, 2 P. Wms. 716; Barnum V. Baruum, 42 Md. 251 ; Thomas v. Thomas, 17 N. J. Bq. 356 ; Hunt v. Watkins, 1 Humph. (Tenn.) 498; Wade v. Malloy, 16 Hun. (N. Y.) 226. See 2 lliu. Insts. 142. (173) § 204 LIFE ESTATES — ASCEKrAINING PRESENT VALUE. [Ch. 11 much thereof as would correspond to the aggregate of all the an- nual payments of interests that would accrue, were he to continue paying the same during his life, reduced to cash calculated at com- pound interest; the duration of the tenant's life being computed according to approved mortality tables, making due allowance for the peculiar conditions of each case.'^ § 204. Same — Mode of Ascertaining Present Value of a Life Es- tate. In case of a commutation of a life estate into money, as upon a sale of a life tenant's interest or otherwise, it often becomes im- portant to ascertain with accuracy the present value of the life es- tate. Independently of statute, this is usually accomplished by means analogous to, or rather the reverse of, the method used to compute the proportion a life tenant is to pay upon the principal of an incumbrance falling due and foreclosed in the tenant's life- time, described in the preceding section. In the latter case, it will be remembered, the amount to be paid by the life tenant is the ag- gregate of his annual interest payments (continued during his whole life) reduced to cash calculated at compound interest. ''' In the case now to be considered the question is, how much is to .be paid to the life tenant in lieu of his life estate in the land? This is estimated, independently of statute, by ascertaining the av- erage annual profits coming, or which should come, to him from the estate, computing the duration of his life as before, and aggre- gating the cash value at compound interest, of such annual profits extending through his whole lifetime."" 67 2 Min. Insts. 143; 1 Washburn, Real Prop. 129, 130, 131; Wilson v. Davisson, 2 Rob. (Va.) 384; Harper v. Vaughan, 87 Va. 426, 12 S. E. 785; Abercrombie v. Riddle, 3 Md. Ch. 320; Bell v. Mayor, 10 Paige (N. X.) 49; Swaine v. Ferine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318 ; Atkins v. Kron, 43 N. C. 1. While tables of mortality are necessary for accurate computations of the duration of the life, the following rule of De Moivre (De Moivre, Chances and Annuities, 265, 283) produces approximate results, and may be used in rough calculations : Regarding eighty-six as practically the extreme limit of human life, deduct the actual age of the party from that number and divide the re- mainder by two ; the quotient being the probable further duration of the life in question. Thus, supposing one to be fifty years old, his probable expecta- 86-50 36 tion of life is expressed by = = 18 years. 2 Min. Insts. 144, 145, note. 2 2 6 8 Ante, § 203. 68 2 Min. Insts. 143, and note; 3 "Va. Law Reg. 69 et seq. ; Wilson v. Davisson, 2 Rob. (Va.) 384. This may be done arithmetically, thus : Sup- posing the life tenant's probable duration of life, as derived from the tables (174) Ch. 11] LIFE ESTATES DEFENSE OF TITLE. § 206 § 205. X. Life Tenant's Duty to Pay Taxes and Local Assess- ments. Since taxes and local assessments are liens upon the land, the same general principles govern the life tenant's duties here as in case of other incumbrances.'"' Taxes are annual payments, like the interest payments upon an incumbrance, and it is therefore the duty of the life tenant to meet them regularly and promptly. Indeed, it is generally required that the land shall be listed for taxation in the name of the life tenant, if there be one.'^ But assessments for local benefits, paid in lump by the life ten- ant, are analogous to the case of the payment of the principal of the incumbrance, not of the payment of annual interest thereon merely; and hence the life tenant, upon payment of such assess- ments, is entitled to contribution from the reversioner or remainder- man, just as he would be if called upon to pay the principal of any other incumbrance on the land.^^ § 206. XI. Life Tenant's Duty to Defend the Title, if Attacked. It was a principle of the old common law that no person could be made defendant in a real action save the tenant of the freehold,'' and in order to prevent injury or loss to the reversioner or remain- derman, or to a sublessee, it was the duty of a life tenant to defend of mortality, is five years, and her annual income from the property is sixty dollars, the computation would be as follows: First year's income paid now instead of at end of first year....$ 56.604 Second year's income paid now instead of at end of second year.... 53.400 Third year's income paid now instead of at end of third year.... 50.377 Fourth year's income paid now instead of at end of fourth year.... 47.525 Fifth year's income paid now instead of at end of fifth year.... 44.855 Present value of the life estate $252.Y61 But this process is intolerably tedious, if the annual sum be considerable and the probable duration of life long. For another method, by the use of logarithms, the student is referred to 2 Min. Insts. 143, note. 7 Ante, § 203. Ti See, for the doctrine independently of statute, Jenks v. Horton, 96 Mich. 13, 55 N. W. 372; Watkins v. Green, 101 Mich. 493, 60 N. W. 44; Gunning V. Carman, 3 Redf. Sur. (N. Y.) 71 ; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796; Johnson v. Smith, 5 Bush (Ky.) 102. ■r2 Ante, § 203 ; 1 Washburn, Real Prop. 130 ; Reyburn v. Wallace, 93 Mo. 326, 3 S. W. 482 ; Moore v. Simonson, 27 Or. 117, 39 Pac. 1105. There may be some question, however, whether the principle applicable here is not rather that applied to improvements placed upon the land by the life tenant, in which case he has no right of contribution from his successor. Ante, § 202. T3Ante, § 136. (175) § 206 LIFE ESTATES DEFENSE OF TITLE. [Ch. 11 such actions to the uttermost, calling to his assistance (or "pray- ing in aid"), if he thinks fit, the reversioner or remainderman.''* This right of "praying in aid" was mainly incident to the writ of right, and with the abolition of that writ by statute in this coun- try, and the introduction of the statutory action of ejectment, the "prayer in aid" has also ceased to exist, at least in its common-law form. § 207. XII. Apportionrrxent of Rent upon Life Tenant's Death, in Case of a Sublease. If a tenant for life leases to an undertenant,, and dies during the sublease, one of two conditions might occur at common law: (1) The life tenant might die upon a day interme- diate between the dates fixed for the payment of the rent; or (2) he might die on the very day appointed for the payment of some installment of the rent. If the life tenant die upon an intermediate day, at common law the property at once went over to the reversioner or remainder- man (unless the life tenant were given a special power to lease for a longer period than his own life), the sublessee's estate was at once terminated, and he was not required to pay any of the rent accrued since the last rent day, on the ground of failure of consider- ation and because the contract to pay rent was an entire thing which, agreeably to the maxim, "Annua nee debitum judex non separat," could not be apportioned. "* But if the life tenant died on the very rent day itself, though the rent was not strictly due until midnight of that day, allowance was at common law made for the extraordinary hardship of the case, and the entire rent was held to be payable to the life tenant's per- sonal representative as though it had already accrued.'^ The latter rule probably remains as at common law, but the for- mer has been altered in England by the statute 11 Geo. II, c. 19, enacting that under the circumstances first above described the rent shall be apportioned, and that so much of the rent as shall have fallen due at the termination of the life estate shall be paid by the undertenant to the personal representative of the life tenant or, if he be a tenant pur auter vie, shall be paid to himself. '''' And simi- 74 1 Washlnirn, Real Prop. 78, 129 ; 1 Preston, Est. 207, 208. 76 2 Jlin. Insts. 52, 113; 2 Bl. Com. 124; 1 Tb. Co. Lit. 476, note (P. I.); Ex parte Smyth, 1 Swanst. 338, 339, note; Cluu's Case, 10 Co. 128a; Clua V. Fisher, 2 Cro. (Jac.) 309; Jenner v. Morgan, 1 P. Wms. 392; Norrls y. Harrison, 2 Madd. 268. 76 2 Min. Insts. 52, 113; Bac. Abr. Rents (H) ; Strafford v. ' Wentworth, 1 P. Wms. 180; Bx parte Smyth, 1 Swanst. 344, note. 77 2 Min. Insts. 53. (176) Ch. 11] LIFE ESTATES APPORTIONMENT OP RENT. § 207 lar statutory provisions have been generally enacted in this coun- try. '« Under the English statute, which in terms applies only in case of a sublease made by a tenant for life, it has been repeatedly held that the common-law rule is not thereby obviated which declares that the rent follows the reversion, and that, upon the death of a lessor seised in fee simple before the rent becomes due, the rent is payable to his heir, and not to his personal representative.'"' 78 2 Washburn, Real Prop. (6th Ed.) § 1209. 70 2 Min. Insts. 53; 1 Lorn. Dig. 736; Norris v. Harrison, 2 Madd. 268; Duppa V. Mayo, 1 Saund. 288c, note (17) (2). The English statute is held to apply to those cases only where the lease comes to an end by the occurrence of the event which raises the question. If, notwithstanding the lessor's death, the lease binds the reversioner or remainderman, as would be the case if the lessor owned the property In fee, or has leased under a power to execute a lease extending beyond his own life estate, the mischief aimed at by the statute does not arise. In such case the reversioner or remainderman will always succeed to the whole rent, without abatement. 2 Min. Insts. 53 ; Strafford v. Wentworth, Prec. In Chan. 556, 557 ; Clun's Case, 10 Co. 128a, n. (F) ; Ex parte Smyth, 1 Swanst. 351 (opinion of Lord Kenyon). MiNOK & W.Rbal Peop.— 12 (177) CHAPTER XII. LIFE ESTATE BY THE CURTESY. 5 208. Definition of Estate by the Curtesy. 209. Origin of tlie Estate by tlie Curtesy. 210. Requisites for Curtesy — Enumeration. 211. I. The Marriage Necessary for Curtesy. 212. Effect of Divorce. 213. II. The Seisin of the Wife Requisite for Curtesy. 214. Seisin in Fact (Actual or Constructive) Usually Required for Curtesy. 215. Wife's Seisin in Law When Sufficient for Curtesy. 216. No Curtesy in Mere Right of Entry or of Action. 217. Sole Seisin by the Wife. 218. Wife may be Seised at Any Time during the Coverture. 219. Wife's Seisin Unlawful or Wrongful. 220. III. The Wife's Estate of Inheritance. 221. No Intermediate Freehold Estate Permitted. 222. Wife's Inheritance must be Heritable by Issue of the Mar- riage as Heirs of the Wife. 223. Wife's Inheritance may be Equitable as Well as Legal. 224. Curtesy in Wife's Equitable Separate Estate. 225. Curtesy in Wife's Statutory Separate Estate. 226. IV. For Curtesy Issue must be Born Alive during the Coverture. 227. Tenancy by Curtesy Initiate at Common Law. 228. V. Death of the Wife. 229. VI. Curtesy a Prolongation of the Wife's Inheritance — General Rule. 230. Consort's Estate a Fee Simple or Fee Tail Where Consort Dies without Heirs. 231. Consort's Estate a Fee Qualified. 232. Consort's Inheritance Terminated by Condition Subsequent. 233. Consort's Inheritance a Conditional Limitation. 234. Destruction of Subject-Matter of Consort's Estate. § 208. Definition of Estate by the Curtesy. Most of the im- portant points touching the estate by the curtesy flow from the definition, which it is necessary therefore to master thoroughly. It may be defined as follows : When a man takes a wife lawfully seised at any time during the coverture of an estate of inheritance, legal or equitable, such as that the issue of the marriage may b}' possibility inherit it as heirs to the wife, has issue by her born alive during the coverture, and the wife dies, the husband surviving has an estate in her lands for his life, by way of prolongation annexed by law to the wife's estate, which is called an estate by the curtesy.^ 1 2 Min. Insts. 114 ; 2 Bl. Com. 126 ; 1 Th. Co. Lit. 551, 55G, et seq. ; Paine's Case, 8 Co. 35a. (178) Ch. 12] CURTESY — EFFECT OF DIVORCE. § 212 § 209. Origin of the Estate by the Curtesy. The full designa- tion of the estate is "the estate by the curtesy of England" (Latin, per legem Anglise). It is so called, says Littleton, because it "is used in no other realm but in England only," ^ which seems to be a mistake in fact ; for not only is it found in Scotland and Ireland (whither it may have been introduced from England), but it pre- vails or did prevail formerly in other countries also, though not under this name. The' laws of the Alemanni (Germans) define the estate almost in the very terms used by the laws of England. Blackstone considers that it takes its name from the husband's attendance on the lord's court (curtis) as one of the vassals in right of his wife, whilst Mr. Wooddeson and Mr. Christian are dis- posed to hold that it originally signified nothing more than an es- tate by the courts of England, as in Latin the tenant is styled "tenens per legem Anglias." This last opinion seems the most satisfactory.' § 210. \ Requisites for Curtesy — Enumeration. The requisites for curtesy, as disclosed by the definition, the discussion of which will go far towards unfolding the whole subject, are as follows : (1) Marriage; (2) the seisin of the wife at some time during the coverture; (3) the inheritance must also be in the wife, such as that the issue of the marriage may by possibility inherit it as heirs of the wife; (4) issue must be born alive during the coverture; (5) the death of the wife; and (6) the curtesy must be a prolongation of the wife's estate annexed by law. § 211. I. The Marriage Necessary for Curtesy. Since the right of curtesy is dependent upon a marriage between the parties, a marriage which is absolutely void, being in law. no marriage at all, is not sufficient.* Nor for the same reason will a voidable mar- riage suffice; that is, if it be actually avoided by a decree of court during the lifetime of the parties (it cannot be avoided after- wards).'' § 212. Same — Effect of Divorce. Where the marriage is dis- solved by divorce, a distinction must be taken between a divorce 3. vinculo and a divorce a mensa. In case of a divorce a vinculo, though the marriage terminates only from the date of the decree, it is now well settled generally a Lit. § 35. 3 2 Mm. Insts. 115 : 1 Th. Co. Lit. 586. note (A) ; 2 Bl. Com. 126, 127, note (8) ; 1 Washburn, Real Prop. 170. 4 2 Min. Insts. 115, 116 ; 1 Th. Co. Lit. 557, note (B) ; 1 Washburn, Real Prop. 172; Turner v. Meyers, 1 Hagg. Consist. 414. 5 1 Washburn, Real Prop. 172; 1 Th. Co. Lit. 557, note (B). See 2 Min. Insts. 117, 118. (179) § 212 CUETESY — 'EFFECT OF DIVORCE. [Ch. 12 throughout the United States that curtesy (and in a corresponding case, dower) in the lands of the divorced consort must be denied, since until the coverture is terminated it is a mere inchoate right or contingent possibility, and not a vested interest." In case of a divorce a mensa, the right to curtesy (or dovsrer) was not, at common law, in the least affected, nor were any of the other marital rights of either consort in the property of the other. Its sole effect was to separate the parties and permit them to live apart.'' § 213. II. The Seisin of the Wife Requisite for Curtesy. The definition of curtesy' requires that the wife should be "seised of the land at some time during the coverture." The seisin of a freehold, as has been elsewhere pointed out,'' may be either a seisin in fact (which ma)^ be actual, or construct- ive under the statutes of uses and of wil'ls, which did away with the necessity of an actual livery of seisin) or a seisin in law. Both of these forms of seisin are to be carefully distinguished from a mere right of entry upon or action for land, which arises where some one other than the true owner is in adverse possession of the land.'" Seisin in law, it will be remembered, arises where land comes to one by descent (act of the law) and before the heir has entered upon the land himself, or by his agent or tenant; there being no one else in adverse possession. ^^ Seisin in fact or in deed arises where the true owner is in actual or constructive possession of land — actual, where he (or his agent or tenant) holds the land by visible actual occupation and pos- session; constructive, where, having derived his title by purchase, as under a deed or will, not by descent, he has not actually occu- pied the land, but no one else is in adverse possession thereof, the « Porter v. Porter, 27 Grat. (Va.) 600; Cralle v. Cralle, 79 Va. 188; Bar- rett V. Failing, 111 U. S. 523, 4 Sup. Ct. 598, 28 L. Ed. 505 ; Wait v. Wait, 4 N. Y. 101; Barbour v. Barbour, 46 Me. 9; Billan v. Hercklebrath, 23 lud. 71 ; McKean v. Brown, 83 Ivy. 208 ; Rice v. Lumley, 10 Oliio St. 596 ; Mc- Craney v. MeCraney, 5 Iowa, 232, 68 Am. Dee. 702. In those states where the tenancy by curtesy initiate (which is at common law a vested estate immedi- ately upon the birth of issue during the coverture) still exists, it may be that a divorce a vinculo subsequent to the birth of issue would not deprive the hus- band of his curtesy. Meacham v. Bunting, 156 111. 586, 41 N. E. 175, 26 L. R. A. 618, 47 Am. St. Rep. 239. But see Wheeler v. Hotchkiss, 10 Conn. 225; Mattocks V. Stearns, 9 Vt. 326. ^ 2 Min. Insts. 121, 122 ; 2 Bl. Com. 130 ; Seagrave v. Seagrave, 13 Ves. 443 ; Dean v. Richmond, 5 Pick. (JIass.) 461 ; Clark v. Clark, 6 Watts & S. (Pa.) 85 ; Walsh v. Kelly, 34 Pa. 84. 8 Ante, § 208. » Ante, § 131. loAnte, § 131. "Ante, § 131. (180) Ch. 12] CURTESY SEISIN EEQUIEED. § 214 title in such case, by virtue of the statutes of uses and wills, being complete without entry. It is further to be observed in this con- nection that the title to an equitable estate is not a mere right of entry or of action, but a seisin, which may be a seisin in law or a seisin in fact (actual or constructive) according to the circumstan- ces.^^ § 214. Same — Seisin in Fact (Actual or Constructive) Usually Required for Curtesy. If the wife has only a right of entry or of action, the husband can never, at common law, take curtesy; ^^ and if she has during the coverture merely a seisin in law, the husband has curtesy only in exceptional cases hereafter to be noted.^* The general rule of the common law is that, in order that the husband may have curtesy, the wife must be seised in fact at some time during the coverture.^^ This seisin may be construct- ive, as well as actual, and if the wife derives the land, hot by descent, but by purchase, as by deed under the statute of uses, or by will, there being no one in adverse possession, her title is complete even without entry, and the husband's curtesy attaches. ^° So, also, upon the principle that the possession of one joint- tenant, tenant in common or coparcener is the possession of all, the husband of such a co-tenant, although she has never been in actual possession of any part of the land durirlg the coverture, is entitled to curtesy therein, since she has been constructively seised in fact on account of the possession of the land by one or more of her co-tenants.^'' A reason frequently assigned for requiring seisin in fact for curtesy is that otherwise the issue of the marriage could not in- herit as heirs of the wife; the common-law rules of descent re- 12 Ante, § 131; 2 Min. Insts. 122, 123; Carpenter v. Garrett, 75 Va. 129; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 43-1; McCorry v. King, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165. 13 Post, § 216 ; 2 Min. Insts. 125. 1* Post, § 215 ; 2 Min. Insts. 124.. 16 2 Min. Insts. 122 et seq. ; 2 Bl. Com. 127; 1 Th. Co. Lit. 558, note (6): 2 Tb. Co. Lit. 177, 179; Barwick's Case, 5 Co. 94; Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. Dec. 205; Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Rep. 747; Vanarsdall v. Fauntleroy, 7 B. Mon. (Ky.) 401; Malone v. McLaurin, 40 Miss. 161, 90 Am. Dec. 320. 18 2 Min. Insts. 123; 1 Washburn, Real Prop. 181; Carpenter v. Garrett, 75 Va. 129, 135; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 434; McCorry v. King, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165; Malone v. Mc- Laurin, 40 Miss. 161, 90 Am. Dec. 320. 17 Post, §§ 727, 758, 771; 1 Washburn, Real Prop. 137; Sterling v. Pen- llngton, 2 Eq. Cas. Abr. 730 ; Wass v. Bucknam, 38 Me. 360. (181) § 214 CURTESY — SEISIN KEQUIRED. [Ch. 12 quiring for that purpose actual seisin in the ancestor.^' That this, however, cannot be the real reason, is shown by the fact that while, for purposes of descent, the seisin must be in the an- cestor at the time of his death, for purposes of curtesy it is not necessary that the wife should die seised, but only that she be seised at some time during the coverture,^' and furthermore by the fact that dower (which by its definition, like curtesy, requires that the deceased consort should have been seised of such an es- tate as that the issue of the marriage may inherit as heirs) should demand pari ratione, were this the true reason, an actual seisin by the husband, whereas it is a familiar principle that for dower it is sufficient if the husband have a seisin in law.^" The true reason for requiring for curtesy a seisin in fact in the wife seems to be in order to stimulate the husband to em- ploy proper diligence in reducing his wife's title to lands into actual possession, so that her interests may not suffer by his neglect. A parallel policy is adopted by the common law in respect to a wife's choses in action, which do not by that law become the husband's unless he reduce them to possession during the coverture. ^^ Lord Coke hints at this reason when, having stated seisin in law to suffice for dower, he accounts for the di- versity in respect to curtesy by observing that "it lieth not in the power of the wife to bring it to an actual seisin, as the husband may do of his wife's land." ^^ But this principle does not extend so far as to deprive the hus- band of curtesy if he permits one to disseise, the wife during the coverture, though such disseisin continues throughout the residue of their married life, provided that at some time during the cover- ture she was seised in fact.^* 18 2 Min. Insts. 123, 527; 2 Bl. Com. 208; 1 Th. Co. Lit. 577, 578; post, § 798. 18 2 Min. Insts. 123, 527; 2 Bl. Com. 208; 1 Th. Co. Lit. 557; post, § 218. 2 Post, § 241; 2 Min. Insts. 123; 1 Th. Co. Lit. 574. 212 Min. Insts. 124; 1 Washburn, Real Prop. 181. It seems such a re- duction of the wife's lands into possession might be made by a vendee, after a sale by the wife and husband under a deed, and such reduction would re- dound to the husband's benefit and give him curtesy, if the deed to the vendee should turn out to be void for want of proper acknowledgment by the wife or for other reasons. See Vanarsdall v. Fauntleroy, 7 B. Mon. (Ky.) 401. 22 1 Th. Co. Lit. 574 ; 3 Th. Co. Lit. 309, 310, note (0) ; 2 Min. Insts. 124. See Den v. Demarest, 21 N. J. Law, 525. 23 Borland v. Marshall, 2 Ohio St. 308; Mitchell v. Ryan, 3 Ohio St. 377. But it seems to be otherwise if the adverse possession continues so long as to vest title in the adverse occupant. Stokely v. Slayden, 8 Baxt. (Tenn.) 307 ; Crow V. Klghtlinger, 25 Pa. 343. (1S2) Ch. 12] CDRTBST — SOLE SEISIN BY WIFE. § 217 § 215. Same — Wife's Seisin in Law When Sufficient for Cur- tesy. The general rule is that seisin in law on the part of the wife does not suffice to give the husband curtesy. Hence, where an ancestor dies leaving land to descend upon his heir (a married woman), who dies before she actually enters (or in case of an incorporeal hereditament before she actually uses or enjoys it), there being no one in adverse possession, she is only seised in law during the coverture, and the husband is ordinarily denied cur- tesy.2* There are, however, some exceptional cases wherein curtesy is allowed, even though the wife be seised only in law. One such case is where it is impossible to obtain seisin in fact during the coverture. Thus, if a man seised of a rent in fee hath issue, a daughter, who is married and hath issue, and he dieth seised, and the daughter before the rent becomes due dieth, she had but a seisin in law, and yet the husband shall be tenant by the curtesy, because he could by no industry attain to any other seisin.-^ It is to be observed, further, that if the wife be one of several heirs, upon the principle that the possession of one coparcener (coheir) is the possession of all,^" the fact that her coparceners have entered and taken possession will redound to her benefit and will make her seised in fact, though she herself (or her agent or tenant) has never entered. Hence, the other conditions existing, her husband is entitled to curtesy.^' § 216. Same — No Curtesy in Mere Right of Entry or of Action. Upon common-law principles already mentioned, no curtesy is al- lowed (unless by statute) in mere rights of entry upon or of action for lands in the adverse possession of another ; that is, where such adverse possession continues throughout the coverture. § 217. Same — Sole Seisin by the Wife. Another qualification of the wife's seisin arose out of the common-law principle of the jus accrescendi or survivorship between joint tenants.^* In order that the husband be given curtesy at common law, it was necessary that the wife be sole seised; that is, that she be not seised as joint ten- ant with another, for in the latter event, upon the wife's death the 24 2 Min. Insts. 124; 2 Bl. Com. 127; 1 Th. Co. Lit. 559; Carpenter v. Garrett, 75 Va. 129, 135. 25 2 Min. Insts. 124; 1 Th. Co. Lit. 558, 559; Shelley's Case, 1 Co. 97; DeGray v. Richardson, 3 Atk. 469 ; Eager v. Furnivall, 17 Ch. Div. 115 ; Da- vis v. Mason, 1 Pet. 503, 7 L. Ed. 239 ; Chew v. Commissioners of Southwark, 5 Rawle (Pa.) 160; Borland v. Marshall, 2 Ohio St. 308. 2 6 Post, § 771. 27 Carr v. Oivens, 9 Bush (Ky.) 679, 15 Am. Rep. 747. 2 8 Post, § 732. (183) § 217 CUETESY SOLE SEISIN BY WIFE. [Ch. 12 whole estate would at common law survive to the surviving joint tenant or tenants by a title superior to the husband's curtesy.''^ In the United States the doctrine of survivorship between joint tenants has been for the most part abolished. Since the attribute of survivorship never belonged to tenancies in common or in coparcenary, the husband even at common law might have curtesy in lands so held by the wife.^° § 218. Same — Wife may be Seised at Any Time during the Cov- erture. In order that the husband may have curtesy, it is not nec- essary at common law that the wife should be seised of the land at the time of her death. It suffices that she is seised at any time during the coverture, either before or after the birth of issue; ^^ and the fact that she acquires the property after the child's death is immaterial. ^^ At common law, however, since a married woman could only pass title to her lands by a fine or common recovery, which were collu- sive suits brought by the proposed purchaser against the wife, found- ed upon a pretended superior title, in which suit the husband must have been joined with the wife as defendant,^^ the husband could not in general claim curtesy in any lands conveyed by the wife dur- ing the coverture, because his joinder with her in the fine or recov- ery barred his curtesy, and so the practical result at common law was that he could only claim curtesy in the lands of which the wife was seised at her death (or in lands of which she had been dis- seised during coverture).^* § 219. Same- — Wife's Seisin Unlawful or Wrongful. The hus- band's curtesy being carved out of the wife's estate, it is obvious that he can have no better title as tenant by the curtesy than the wife herself has during the coverture. Hence, if the wife, during the coverture, or the tenant by the curtesy after her death, is evict- ed by a stranger claiming under a paramount title, thus establish- ing that the wife never had a lawful seisin, it frustrates any claim to curtesy founded thereon, as under similar circumstances the wife's claim to dower is defeated.^" 29 2 Min. Insts. 124, 125, 476; 1 Th. Co. Lit 564, 745, 746; post, § 732. 30 2 Min. Insts. 499, 507; Carr v. Givens, 9 Bush (Ky.) 679, 15 Am. Rep. 747 ; Wass v. Bucknam, 38 Me. 356. 31 Comer v. Chamberlain, 6 Allen (Mass.) 166; Hunter v. Whitworth, 9 Ala. 965. 3= Jackson v. Johnson, 5 Cow. (N. T.) 74, 15 Am. Dec. 433; Phillips v. Ditto, 2 Duv. (Ky.) 549 ; Templeton v. Twitty, 88 Tenn. 595, 14 S. W. 435. 33 2 Min. Insts. 091 et seq. ; post, § 282. 3 4 Ante, § 294. 3 6 2 Min. Insts. 128, 129 ; 1 Th. Co. Lit. 5G0, note (D), 618, note (R) ; 4 Kent, Com. 32, 33. (184) Ch. 12] CURTESY — wife's estate of inheritance. § 220 But it should be observed that the husband of one wrongfully seised may hold his curtesy against all persons save him to whom the seisin rightfully belongs and those claiming under him.^* § 220. III. The Wife's Estate of Inheritance. In order to cur- tesy, not only must the wife have the seisin in fact — that is, the immediate freehold in possession (actual or constructive) — but she must also have an estate of inheritance in the land of which she is seised. Hence seisin in fact, standing alone, does not necessarily give curtesy, for the wife may be seised in fact of a life estate mere- ly. She must have the inheritance.^" For curtesy, therefore (and the same is true of dower), the de- ceased consort must have had some time dviring the coverture (1) the immediate seisin, or an estate of freehold in possession ; (2) the first estate of inheritance ; (3) without any intermediate estate of freehold.^* Thus, if a woman seised in fee leases land to D. for D.'s life (or for her own), reserving rent throughout the term, marries, has is- sue, and dies before D.'s estate terminates (or at the same time), her husband cannot have curtesy in the land, because of that she has never, during the coverture, had the immediate estate of free- hold in possession (that being in D.) ; nor in the rent, for in that she had no estate of inheritance, but only an estate for the life of D. (or for her own life).'' But if the woman above supposed leases to D. for a term of years, the other circumstances remaining the same, and dies before the term is up, never having parted with the immediate freehold in pos- session-, and entitled to the inheritance also, the husband will be given curtesy in the reversion after the term for years ; that is, as owner of the reversion during his life he is entitled to the rent an- nually accruing from the lease, and after its termination to the land itself for the residue of his life.*" Applying the same principles, it will be seen that upon a con- veyance or devise "to A. for life, remainder to W. in fee" (A. and W. both being married women), the husband of A. has no curtesy 3s 1 Washburn, Real Prop. 228. 37 2 Min. Insts. 127; Muse v. Friedenwald, 77 Va. 57; Churchill y. Reamer, 5 Bush (Ky.) 256 ; Graves v. Trueblood, 96 N. C. 495, 1 S. E. 918 : Waller v. Martin, 106 Tenn. 341, 61 S. W. 73, 82 Am. St. Rep. 882 ; Mullany v., Mullany, 4 N. J. Eq. 16. 31 Am. Dec. 238 ; Sumner v.- Partridge, 2 Atk. 47. 38 2 Min. Insts. 127; 1 Th. Co. Lit. 560, note (E & F) ; post, §§ 252, 253. 3»2 Min. Insts. 127; 1 Th. Co. Lit. 559, .560, note (10), 582; Cocke v. Phil- ips, 12 Leigh (Va.) 248 ; Malone v. JIcLaurin, 40 Miss. 161, 90 Am. Dec. 320 ; Reed v. Reed, 3 Head (Tenn.) 491, 75 Am. Dec. 777 ; Moore v. Darby, 6 Del. Ch. 193, 18 Atl. 768, 13 L. R. A. 346, 348. io 2 Min. Insts. 127 ; 1 Th. Co. Lit. 559, 560, note (10), 582 ; Moore v. Darby, 6 Del. Ch. 193, 18 Atl. 768, 13 L. R. A. 346, 348. (185) § 220 CURTESY — wife's ESTATE OF INHERITANCE. [Ch..l2 upon her death, because A. has not an estate of inheritance ; nor is W.'s husband entitled to curtesy, supposing W. to die during A.'s lifetime, because W. during the coverture is not seised of the imme- diate freehold in possession.*^ So, also, where upon the death of the wife's ancestor she, as his heir, enters upon the land and assigns dower therein (that is, one- third) to the ancestor's widow for her life, and, having had issue, she dies in the lifetime of the ancestor's widow, the husband sur- viving is entitled to curtesy in the remaining two-thirds only of the inheritance derived by his deceased wife from her ancestor, and not in the one-third assigned to the ancestor's widow as her dow- er; for as to that third the wife's seisin was in contemplation of law terminated by the assignment of the widow's dower, not from the time of the assignment only, but by relation from the ancestor's death, so that in law she is not seised of that third at any time dur- ing the coverture.*^ But if the ancestor's widow should die before the wife, the latter becomes immediately seised of the land where- in the former had been endowed, so that upon the wife's death the husband takes the whole land by way of curtesy.*^ § 221. Same — No Intermediate Freehold Estate Permitted. As indicated in the preceding section, not only must the wife have the immediate freehold in possession and the first estate of inheritance, but there must be between these two estates no intervening vested estate of freehold ; that is, it must not remain so throughout the coverture. An intervening vested remainder for a term of years only does not affect the husband's curtesy, nor perhaps does a con- tingent remainder, whether of freehold or for years, provided it re- mains contingent throughout the coverture, and does not become vested, or otherwise prevent a merger of the lesser freehold in pos- session by the inheritance.** Thus, a conveyance or devise "to W. for her life, remainder to B. for life, remainder to W. and her heirs," would give W. (1) the "Malone v. McLaurin, 40 Miss. 161, 90 Am. Dec. 320; Reed v. Reed, 3 Head (Tenn.) 491, 75 Am. Dec. 777. 42 2 Min. Insts. 127, 128; 1 Th. Co. Lit. 574, 575; Reed v. Reed, 3 Head (Tenn.) 491, 75 Am. Dee. 777 ; In re Cregier, 1 Barb. Cli. (N. Y.) 598, 45 Am. Dec. 416. See post, § 250. *3 These principles are applicable to dower as well as to curtesy, and when applied to dower find expression in the maxim, "Dos de dote, peti non debet." Fuller explanations will be found in connection with the treatment of dower Post, §§ 250, 251; 2 Min. Insts. 152, 153. **Post, §§ 252, 253; 2 Min. Insts. 128; 2 Bl. Com. 137, note (30); 2 Th. Co. Lit. 292, note (1) ; 1 Bright, Husb. & Wife, 519 ; 1 Scribner, Dower, 233, 235. The termination during the coverture, by surrender or otherwise, of the Intermediate freehold restores the right of curtesy (or dower). 1 Scribner, Dower, 234. (186) Ch. 12] CURTESY — wife's estate must be heritable. § 222 immediate freehold (for her hfe) in possession, and also (2) the first estate of inheritance (by virtue of the limitation to "W. and her heirs") ; but W.'s husband would nevertheless be denied curtesy in general because of the interpolated freehold remainder in B., which is a vested remainder, and will continue so throughout the coverture unless B. dies during W.'s lifetime or the intermediate remainder is otherwise destroyed.*^ § 222. Same — Wife's Inheritance must be Heritable by Issue of the Marriage as Heirs of the Wife. The husband's right of cur- tesy in the wife's estate of inheritance is subject by the terms of the definition itself to the further qualification that her estate must be such an estate of inheritance "as that the issue of the marriage may by possibility inherit the same as heirs to the wife." *^ Though by the terms of the deed or will creating the wife's estate the issue of the marriage are to take the estate upon her death, still if they are not to take as heirs of the wife (that is, by descent), but are to take as purchasers under the deed or will, the husband is denied curtesy.*' Thus, if a testator devises land "to W. and her heirs, but if she die leaving issue, then to her children and their heirs," the hus- band has no curtesy, because any issue of the marriage taking the land at W.'s death take it by purchase as devisees expressly nam- ed in the will, and not by descent as heirs of the wife.*' And this principle applies, it seems, even though the issue of the marriage may by possibility inherit as heirs of the wife, if that cannot possi- bly happen during the husband's lifetime. Thus, in Sumner v. Partridge,*" the devise was "to the wife and her heirs, and if she die before her husband, then the estate to pass to her children and their heirs." It was held that the husband was not entitled to cur- tesy though the children of the marriage might by possibility take as heirs of the wife in the event of the wife surviving the husband. They were to take as devisees only in the event that the wife died before the husband ; but that would be the very case in which the husband might claim curtesy. So, also, if the wife has an estate tail female, and she has only male issue, the husband would at common law be denied curtesy.'^* 45 2 Min. Insts. 128. *6 Ante, § 208. *7 2 Min. Insts. 128; 1 Th. Co. Lit. 577, 578; Barker v. Barlter, 2 Sim. 249; Sumner v. Partridge, 2 Atk. 37 ; Adams v. Beekman, 1 Paige (N. Y.) 631. •4 8 2 Min. Insts. 128; Barker v. Barker, 2 Sim. 249; Adams v. Beekman, 1 Paige (N. Y.) 631. 49 2 Atk. 37. 50 1 Washburn, Real Prop. 186; 2 Bl. Com. 128; Day v. Cochran, 24 Miss. 261 ; Heath v. White, 5 Conn. 228, 236. (187) § 223 cuETBSx — wife's equitable estate. [CU. 12 § 223. Same — Wife's Inheritance may be Equitable as Well as Legal. Upon the first introduction into -England of equitable es- tates (that is, uses) — in the latter part of the reign of Edward III, about A. D. 1370 — the common law refused to recognize them, and the courts denied curtesy in them. But the popularity of uses and the prompt conversion of most of the landed property of the realm into that form of holding speedily compelled the courts to retrace their steps, and to hold that the husband might have curtesy in the wife's equitable estates, provided the other requisites therefor ex- isted.^^ Even at common law the husband is entitled to curtesy, not only in estates of inheritance whereof the wife is seised as cestui que trust under an express trust, but also in money converted into land under the doctrine of equitable conversion and in the wife's equi- ties of redemption. Thus, if money is directed to be invested in land for the wife's benefit, or if before marriage she has become the vendee of land, though the money be not actually invested in land, nor a deed to the land she has purchased be actually made to her, at any time during the coverture, the husband is yet entitled in equity to curtesy therein, for equity regards that as done which ought to be done, and an equitable conversion of the money into land occurs. ^^ On the other hand, when land devised to the wife is directed by the will to be sold in the discretion of the executor, who sells accordingly, the husband is entitled to curtesy in the proceeds, since there was a time during the coverture when the wife was seised of the land it- self, and a court of equity will regard the proceeds of the sale as land to protect the husband's curtesy right.^^ With respect to the wife's equities of redemption, incident to mortgages executed before the wife's marriage, the husband un- doubtedly has curtesy therein, if the mortgage be not foreclosed in 61 2 Min. Insts. 125 ; 2 Bl. Com. 127, note (9) ; 1 "Washburn, Real Prop. 173 ; Sweetapple v. Bindon, 2 Vem. 536; Watts v. Ball, 1 P. Wms. 108; Hearle v. Greenbank, 3 Atk. 695, 717; Darcy v. Blake, 2 Sch. & Lefr. 388; Morgan v. Morgan, 5 Madd. 408; Davis v. Mason, 1 Pet. 503, 7 L. Ed. 239; Mullauy v. Mullany, 4 N. J. Eq. 16, 31 Am. Dec. 238. 6 2 Sweetapple v. Bindon, 2 Vern. 536; Dodson v. Hay, 3 Bro. Ch. 404. 6 3 Dunscomb v. Dunscomb, 1 Johns. Ch. (N. T.) 508, 7 Am. Dec. 504. So, where an executor or trustee sells the land of a female heir or cestui que trust under such circumstances that she has the option of confirming the sale and taking the money or avoiding the sale and taking back the land, and she elects to take the money, her husband is in equity entitled to curtesy therein, at least if she die before it is paid over. Houghton v. Hapgood, 13 Pick. (Mass.) 154. See, also, Clepper v. Livergood, 5 Watts (Pa.) 113; Forbes v. Smith, 40 N. C. 369. (188) Ch. 12] CURTESY — wife's equitable separate estate. § 224 the wife's lifetime, so that at her death the equity of redemption still subsists as an equitable interest in the land.'** But if the mort- gage is foreclosed in the wife's lifetime, whether the mortgage has been executed before or after the marriage, the surplus remaining after satisfying the mortgage debt is personalty. § 224. Same — Curtesy in Wife's Equitable Separate Estate. In the absence of a contrary intention shown by the settlor in the in- "Strument of settlement, or appearing from the surrounding circum- stances, the husband at common law takes curtesy in the wife's equitable separate estates of inheritance, whereof she is seised dur- ing the coverture; the general principle being that the marital rights of the husband are not to be divested further than the terms or circumstances of the settlement clearly require. °° Thus, if the wife's separate estate is created by the gift of the husband himself, whether directly or through a trustee, it excludes the husband's curtesy in such lands, in the absence of a reserva- tion by him of his marital rightp in the land thus bestowed.^^ And so it would be if the settlement expressly excludes the hus- band's curtesy, or perhaps if it expressly gives the wife the power to convey as if she were unmarried, that is, without a joinder of the husband in her conveyance; for if he was intended to retain cur- tesy in the land so granted the settlor would not have authorized her to convey by her sole act.^' So, also, if by necessary inference from the language used the intent of the settlor is manifest to exclude the husband's curtesy, as by a gift to the wife to her sole and separate use "free from all claims or demands of her husband now or at any time hereafter,'' the husband's curtesy is negatived. "^^ If there is nothing in the language of the settlement to indicate an intention that the husband shall not enjoy his marital rights, a 64 See 2 Min. Insts. 142 ; 1 Loin. Dig. 102 ; Heth v. Cocke, 1 Rand. (Va.) 344; Gatewood v. Gatewood, 75 Va. 407. 55 2 Min. Insts. 126; 1 Washburn, Real Prop. 176; Maloney v. Kennedy, 10 Sim. 254; Mitcliell v. Moore, 16 Grat. (Va.) 275; Carter v. Dale, 3 Lea (Tenn.) 710, 31 Am. Rep. 660. 66 2 Min. Insts. 126; Jones v. Jones, 96 Va. 749, 32 8. E. 463; Rigler v. Cloud, 14 Pa. 861. But if tlie equitable separate estate be given by a third person to the husband as trustee for the wife, this conclusion does not neces- sarily follow. Meacham v. Bunting, 156 111. 586, 41 N. E. 175, 28 L. R. A. 618, 47 Am. St. Rep. 239. 6 7Bennet v. Davis, 2 P. Wms. 316; Cochran v. O'Hern, 4 Watts & S. (Pa.) 95, 39 Am. Dec. 60. But see Carter v. Dale, 3 Lea (Tenn.) 710, 31 Am. Rep. 660 ; Mullany v. Mullany, 4 N. J. Eq. 16, 31 Am. Dec. 238. 68 2 Min. Insts. 126; Chapman v. Price, 83 Va. 394, 396, 11 S. E. 879; Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. 950. (189) § 225 CURTESY — wife's statutory separate estate. [Ch. 12 different case is presented. In such case, in England, where the rule is that a married woman may convey her equitable separate estate, whether it be land or personalty, as if she were a feme sole, imless the settlement forbids, it is held very properly that the hus- band is not entitled to curtesy, for such must in legal contempla- tion have been the intent of the settlor.^" § 225. Same — Curtesy in Wife's Statutory Separate Estate. In the United States it is now generally provided by statute that, ex- cept the wife's equitable separate estate, all the property of a mar- ried woman "heretofore or hereafter acquired" shall be her statu- tory separate estate; but these statutes vary greatly as to the do- minion which they concede to the wife over this class of property, and consequently as to what will operate to bar the husband's curtesy. § 226. IV. For Curtesy Issue must be Bom Alive during the Coverture. It is difHcult to assign a satisfactory reason for the re- quirement of the common law that for curtesy issue must be born alive during the coverture. This requirement is possibly connected with the fact that cur- tesy was originally looked upon rather as an estate by descent than by purchase, and, being considered in some sort a prolongation of the wife's inheritance, was only permitted when the wife has is- sue."" But perhaps a more probable explanation may be found in the feudal policy that encouraged the feudatory to multiply chil- dren who might perforrh the military services, and that permitted him to remain during his life responsible for such services in the place of his children. Whatever the reason, the rule itself is rigidly adhered to — so much so, indeed, that if the wife die in childbirth, and the child is after her death, by a Cassarean section, ripped from the womb alive, no curtesy is allowed."^ The fact that the child is en ventre 5 9 Cooper V. McDonald, L. R. 7 Ch. Div. 300; Chapman v. Price, 83 Va. 392, 394, 11 S. E. 879. 6 This seems to be the explanation adopted by Mr. Washburn. 1 Wash- burn, Real Prop. 186. But it is unsatisfactory, since curtesy is no more a continuation of the wife's inheritance than dower is of the husband's, yet admittedly no issue is required for dower. Nor is it perceived why birth of issue is necessary to the continuation of the wife's inheritance, since she may have collateral heirs upon whom it may descend; and it is an established rule that though the wife die totally without heirs, if she has had issue born alive, the husband takes curtesy as a prolongation of the wife's estate. Post, § 230. "2 Min. Insts. 133; 2 Th. Co. Lit. 562; 2 Bl. Com. 127; 1 Washburn, Real Prop. 187 ; Paines Case, 8 Co. 3oa ; Marsellis v. Thalhimer, 2 Paige (N. X.) 35, 21 Am. Dec. 66 ; GofE v. Anderson, 91 Ky. 303, 15 S. W. 860, 11 L. R. A 825. (190) Ch. 12] CURTESY INITIATE AT COMMON LAW. § 227 sa mere at the time of the wife's death, while reckoned by the law sufficiently in being to enable the child itself to take an estate for its own benefit, will not suffice to confer rights upon third persons. It must be actually born within the period required.*^ But it is immaterial whether the issue be born before or after the acquisition of the property, or whether the wife still owns the property at the time of the birth of the issue, ^^ or whether she has acquired the property after the death of the issue."* Nor is it nec- essary, in order to give the husband curtesy, that the issue of the marriage should be the only heirs to inherit from the wife. Thus, if a wife, having issue born of a former marriage, marries again and has issue, the husband takes curtesy in all the wife's estates of in- heritance, though the issue of that marriage must share the inheri- tance with the issue of the former marriage."^ As to the evidence that the child is born alive, it was supposed during the infancy of medical science that the child must have been heard to cry. But in modern times any medical or other evidence of an independent circulation of the blood suffices. *° It is an interesting inquiry how far, if at all, this rule requiring birth of issue during the coverture has been modified by the stat- utes, existing in many states, which permit the legitimation of bas- tards by a subsequent marriage of the parents. The proper answer depends in large measure upon the reasons for the common-law rule, which as we have seen are veiled in obscurity. It has been held in Alabama, however, that the legitimation of a bastard by subsequent marriage, though no issue be born in wedlock, entitles the husband to curtesy.*.^ § 227. Same — Tenancy by Curtesy Initiate at Common Law. At common law, before the birth of issue the husband was en- titled as a marital right to the use, control and management of the wife's freehold estates (except her equitable separate estate) ; but he held this interest only in right of his wife and jointly with 62 Jiarsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66. 63 1 Co. Lltt. 30a ; 2 BI. Com. 128 ; 1 Washburn, Real Prop. 18G ; Comer V. Chamberlain, 6 Allen (Mass.) 166; Hunter v. Whltworth, 9 Ala. 965; Jack- son Y. Johnson, 5 Cow. (N. T.) 74, 15 Am. Dec. 434; Heath v. White, 5 Conn. 228, 236 ; Guion v. Anderson, 8 Humph. (Tenn.) 307. 6*1 Co. Litt. 30a ; Jackson v Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 434 ; Templeton v. Twitty, 88 Tenn. 595, 14 S. W. 435; Phillips v. Ditto, 2 Duv. (Ky.) 549. 6 5 Heath v. White, 5 Conn. 228, 236. 66 2 Min. Insts. 133; 2 Bl. Com. 127; 1 Th. Co. Lit. 563. 6 7 Hunter v. Whitworth, 9 Ala. 965. For curtesy in the case of a legally adopted child, see Murdock v. Murdock, 74 N. H. 77, 65 Atl. 392. (191) § 227 CURTESY INITIATE AT COMMON LAW. [Ch. 12 her, and by the feudal law he must do homage for the land in con- junction with her."* But, after the birth of issue alive during the coverture, the nature of the husband's interest during the remainder of the wife's life undergoes a change at common law. He at once becotnes "tenant by the curtesy initiate" (which upon the wife's death is converted into "curtesy consummate") ,"' and as such he becomes entitled to rights other than and additional to the rights he possesses merely as husband. By the feudal law, from that time he does homage alone, and not in conjunction with the wife ; and he may make a feoffment in fee or a lease for his life or a charge upon the lands which the heirs of the wife cannot during his lifetime avoid.''" He may also forfeit his estate for felony, which until issue be born he could not do, because the wife, not he, is the tenant.''^ After birth of issue, the husband's estate is not defeated by the attainder of the wife, the tenancy continuing in him as the sole tenant;''^ and if, after birth of issue, the husband be disseised, the disseisor's possession, it is said, is adverse to him alone, not to the wife, nor her heirs, un- til his death.'^ Furthermore, after birth of issue, the husband's curtesy initiate is at common law liable to be subjected to his debts, nor can he defeat the creditor's rights by any disclaimer of his curtesy, nor by an appeal to equity on the part of his wife or children.''* These and other like incidents pertaining to curtesy initiate seem to indicate that it should be regarded, for most purposes at least, as a vested interest in the husband, even before the death of the wife, and not a mere contingent possibility of interest, such as he has before the birth of issue.'' ° 68 2 Min. Insts. 134; 1 Th. Co. Lit. 558; Bac. Abr. Curtesy (D) ; Greneley's Case, 8 Co. 72b, 73a; Breeding v. Davis, 77 Va. 639, 646, 46 Am. Rep. 740; Barber v. Root, 10 Mass. 260 ; Van Note v. Downey, 2S N. J. Law, 219. 68 2 Min. Insts. 133, 134; 2 Bl. Com. 128; 1 Th. Co. Lit. 563, note (H). 70 2 Min. Insts. 134; 1 Tli. Co. Lit. 558; 'Bac. Abr. Curtesy (D) ; Greneley's Case, 8 Co. 72b, 73a. 71 2 Bl. Com. 126 ; Porter v. Porter, 27 Grat. (Va.) 604. 72 1 Hale, P. C. 359; Co. Lit. 351a, 40a; Porter v. Porter, 27 Grat. (Va ) 604. 73 Foster v. Marshall, 22 N. H. 491. But this is probably not the true rule. See Guion v. Anderson, 8 Humph. (Tenn.) 298, 325 ; McCorry v. King, 3 Humph. (Tenn.) 267, 39' Am. Dec. 165; Melvin v. Proprietors of Locks & Ca- nals, 16 Pick, (iuass.) 161 ; Melius v. Snowman, 21 Me. 201. 7't 2 Min. Insts. 134 ; 1 Washburn, Real Prop. 189 ; Breeding v. Davis, 77 Va. 646, 46 Am. Rep. 740 ; Roberts v. Whiting, 16 Mass. 186 ; Van Duzer v. Van Duzer, 6 Paige (N. Y.) 366, 31 Am. Dec. 257. 7sBut statutes abolishing the curtesy of the husband, while held uncon- stitutional so far as they attempt to destroy the curtesy consummate (the (192 J Ch. 12] CURTESY PROLONGATION OF WIFE'S ESTATE. § ' 229 § 228. V. Death of the Wife. The fifth requisite for curtesy is the death of the wife. Upon the happening of this event, the cur- tesy, which before was curtesy initiate, becomes curtesy consum- mate, vesting an immediate estate in the husband for his Hfe in the whole of the wife's lands of inheritance. It is the natural, not the civil, death of the wife which consummates the husband's right of curtesy. ''° Immediately upon the wife's death the husband succeeds to her lands by act of the law, without the necessity of any assignment (such as is necessary in the case of dower) ; and since it comes to him by act of the law he cannot disclaim it or otherwise prevent it from vesting in himself.''^ § 229. VI. Curtesy a Prolongation of the Wife's Inheritance — General Rule. Cases sometimes arise wherein, by reason of some collateral contingency, the wife's inheritance may come to an end, as where at common law she dies without any heirs, or in case of a fee tail she dies without heirs of her body, or where the estate ter- minates upon some condition or contingency. In all such cases the general rule by which to ascertain whether curtesy (and the same rule applies to dower) shall be allowed may be thus stated: If the consort's inheritance expires by the regular efflux of the period marked out by the original limitation of the estate, leaving the consort's previous seisin unimpaired, curtesy and dower are prolongations of the consort's estate annexed by law ; and though that estate, according to its ostensible terms, has expired, yet (sup- posing the consort dead at the time of such expiration) curtesy and dower are annexed to the consort's estate as continuations thereof. But if the consort's estate is terminated in such a manner as to de- feat, annul, or impair the previous seisin as from the beginning, or if the consort's estate terminates in his or her lifetime, or if the sub- ject-matter of the consort's estate ceases to exist, in none of these wife being dead at the date of tlie statute), as violating the fourteenth amend- ment to the federal Constitution declaring that "no state shall deprive any person of property [that is, vested property rights] without due process of law," have been held to be not unconstitutional when applicable to curtesy initiate, thus indicating that for this purpose at least the curtesy initiate is not a vested estate. Alexander v. Alexander, 8.5 Va. 369, 7 S. E. 235, 1 L. R. A. 125 ; Porter v. Porter, 27 Grat. (Va.) 599 ; Moore v. Darby, 6 Del. Ch. 193, 18 Atl. 768, 13 L. R. A. 346. T6 2 Min. Insts. 133, 134, 155; 2 Bl. Com. 132, 133; 1 Th. Co. Lit. 569, 5S0 ; Breeding v. Davis, 77 Va. 639, 646, 46 Am. Rep. 740 ; Moore v. Darby, 6 Del. Ch. 193, 18 Atl. 768, 13 h. R. A. 346, 347. T7 2 Min. Insts. 183 ; 1 Washburn, Real Prop. 142 ; Watson v. Watson, IS Conn. 83. Minor & W.Real Prop.— 13 (193) § 229 CURTESY PROLONGATION OF WIFB's ESTATE. [Ch. 12 cases can there be a continuation or "prolongation" of the consort's estate by way of curtesy or dower.^^ Applications of these principles will be given in the following sections. § 230. Same — Consort's Estate a Fee Simple or Fee Tail Where Consort Dies without Heirs. Let us first suppose the case where the consort is seised in fee simple and dies without any blood rela- tions. In such case the consort's estate is terminated by the reg- ular efflux of the period originally marked out for it (that is, while the consort had heirs) ; the consort's previous seisin remaining un- impaired. Here, the other conditions existing, the husband would be entitled to curtesy in the consort's estate, or the wife to dower (therein, as continuations or "prolongations" of such estate annexed by law.''" Upon similar principles, if the consort have an estate tail and die without surviving issue, the fee tail is terminated by the reg- ular efflux of the period originally marked out for it, without im- pairing the consort's previous seisin, and therefore curtesy or dow- er would attach as a prolongation of the estate tail, which was in the consort until his or her death. ^^ § 231. Same — Consort's Estate a Fee Qualified. There seems to be considerable confusion amongst the text-writers as to whether curtesy and dower should be allowed in fees qualified or base fees, which, it will be remembered, are estates that may last forever, but may also come to an end at any moment by the lapse of some period of limitation originally contained in the grant.*^ The gen- eral opinion seems to be that curtesy and dower are to be denied therein.*^ With deference, it is submitted, however, that this statement, if taken literally, is hardly maintainable upon principle or authori- ty. Take, for example, a conveyance "to A. and her heirs, as long as B. has heirs of his body." Should A. marry, have issue and die, B. or the heirs of his body being still existent, A.'s husband must upon every principle be given curtesy; for A. is seised during the T8 2 Min. Insts. 129; 1 Th. Co. Lit. 561, note (1.3) ancl (G), 565, note (L) ; Paine's Case, 8 Co. 34a, 1 Leon. 1C7. See, also, the following sections. 7 2 Min. Insts. 130; 1 Bright, I-Iusb. and Wife, 348. 80 2 Min. Insts. 131 ; 1 Tli. Co. Lit. 561, note (13) and (G), 565, note (L) ; 1 Bright, Husb. and Wife, 133 ; Paine's Case, 8 Co. 34a, 1 Leon. 167 ; Hay v. JIayer, 8 Watts (Pa.) 203, 34 Am. Dec. 453 ; Holden v. Wells, 18 R. I. 802^ 31 Atl. 265 ; Tomlinson v. Nlcliell, 24 W. Va. 148. 81 Ante, § 157. 8 2 See 2 Min. Insts. 130; 1 Washburn, Real Prop. 177, 178; 1 Roper, Husb. and Wife, 37 et seq. ; 4 Kent, Com. 49. (194) Ch. 12] CURTESY TEEMINATION OF CONSORTS INHERITANCE. § 232 coverture of an estate of inheritance (still existing) such as that the issue of the marriage may inherit it as A.'s heirs, and has had issue born alive during the coverture. All the requisites for curtesy ex- ist here, and the husband would take it accordingly. But if, after the wife's death, B. and the heirs of his body should cease to exist, the husband's curtesy (and in a corresponding case, the wife's dower) ceases to exist also.^^ Supposing, however, in the same case, that B., in the lifetime of A., should die without heirs of his body, whereupon A.'s estate ceas- es to exist, and A. afterwards dies, A.'s husband would be denied curtesy (or A.'s wife, in a corresponding case, dower) ; for though A.'s estate would thus come to an end by the regular efflux of the period marked out for it, without impairing A.'s previous seisin, curtesy or dower could not be a "prolongation" of A.'s estate, be- cause there is no estate in A. at his or her death to which the cur- tesy or dower could be annexed as a continuation thereof.'* § 232. Same — Consort's Inheritance Terminated by Condition Subsequent. Suppose a conveyance "to W. and her heirs, but if she die under twenty-five her estate to cease and determine." Sup- pose, further, that W. marries, has issue and dies under twenty-five. The reader must here take note of an explanation, elaborated hereafter, namely, that in case of a freehold estate given upon an express condition subsequent the seisin does not terminate merely upon the happening of the contingency, but only upon the re-entry of the grantor or his heirs for the condition broken ; and when the grantor does so re-enter, he enters by title paramount, defeating or impairing the grantee's seisin from the beginning, the grantor be- ing thereupon seised as he was before the grant, or as if there had never been any grant. *° Applying these principles, it will be seen that the mere death of W. under twenty-five does not, of itself, put an end to her estate, and until the re-entry of the grantor or his heirs her husband may 83 See 1 Scribner, Dower, 292 et seq., 297 ; Seymor's Case, 10 Co. 96a. lu that case a tenant in tail, witli remainder over, conveyed in fee simple to Seymor by bargain and sale (an Innocent conveyance under the statute of uses), which did not operate a discontinuance of the entail, but permitted the issue in tail or the remainderman to enter after the death of the tenant in tail. See ante, § 174, note 25. The court held that Seymor's wife was en- titled to dower in the fee simple thus conveyed, but that her dower was de- terminable by the death of the tenant in tail. 8 4 This is probably the case which the text-writers have in mind when they lay down the rule unqualifiedly that curtesy and dower cannot be had in fees qualified. See 2 Jlin. Insts. 130 ; 1 Scribner, Dower, 197 ; Park, Dower, 162 ; 1 Tiffany, Real Prop. § 183. 8 6 Post, § 474. (195) § 232 CURTESY TERMINATION OP CONSORt's INHERITANCE. [Oh. 12 enter upon the land and enjoy curtesy therein." But immediate- ly upon such re-entry by the grantor or his heirs, the wife's previ- ous seisin is impaired or defeated ab initio, and the husband's claim of curtesy falls to the ground, since it cannot lawfully be based up- on an unlawful seisin on the part of the wife.*^ In the case above supposed the condition is one necessarily in- volving the consort's death (under the age of twenty-five). If we now suppose a conveyance "to W. and her heirs, but if B. dies un- der twenty-five W.'s estate to cease and determine" (or upon any other condition not involving W.'s death) precisely the same prin- ciples apply, together with others already noticed. Thus, if W. die, living B. (still under the age of twenty-five), W.'s husband takes curtesy; but his estate is liable to be defeated by the grantor's re- entry, should B. afterwards die under twenty-five. On the other hand, should B. die under twenty-five in W.'s lifetime, her estate terminates upon the grantor's re-entry as before, and, upon her death subsequently, her husband would be denied curtesy, not only because the grantor's re-entry is by title paramount, and impairs or defeats W.'s previous seisin ab initio, but also because W. has no estate at her death to which the curtesy might be annexed by law as a prolongation or continuation thereof.^ ° § 233. Same — Consort's Inheritance a Conditional Limitation. A conditional limitation, it must be observed, differs in practical effect from an estate upon condition subsequent, in that the former estate, upon the breach of a condition subsequent, goes over to a third person, and does not revert to the grantor or his heirs by re- entry. Thus, upon a conveyance or devise "to W. and her heirs, but if W. die under twenty-five then her estate to cease and deter- mine," is an estate upon condition subsequent, as shown in the pre- ceding section. But a conveyance or devise "to W. and her heirs, but if she die under twenty-five then to B. and his heirs," is a condi- tional limitation in W., which upon the happening of the named event requires no re-entry -on the part of the grantor or his heirs 8 6 Park, Dower, 150; 1 Scribner, Dower, 290, 297; 1 Tiffany, Real Prop. § 183. 87 Ante, § 219; 2 Min. Insts. 131; 1 Scribner, Dower, 291; Park, Dower, 153 ; 4 Kent, Com. 49 ; Emerson v. Harris, 6 Mete. (Mass.) 475. 88 See 1 Washburn, Real Prop. 267; Park, Dower, 153; 1 Scribner, Dower. 291 ; Emerson v. Harris, 6 Mete. (Mass.) 475. In case of entry for breach of a condition implied, as where the consort has an estate tail, which is discon- tinued by reason of an alienation in fee by tortious conveyance, the consort's seisin is not impaired thereby, yet for the last reason given in the text there would be no curtesy. See 2 Min. Insts. 131, 132. (196) Ch. 12] CURTESY — DBSTEUCTION OF CONSORT'S PROPERTY. § 234 to terminate it, but goes over to B. of its own accord and immedi- ately.'* In case of such a conditional limitation as that above mentioned, should W. die under twenty-five, it will be seen that her husband (the other conditions existing) is entitled to curtesy as a prolonga- tion of her estate annexed by law ; for she has during the cover- ture an estate of inheritance, which is not terminated before her death, but runs out the regular period marked for it without im- pairing the previous seisin of W. Indeed, the authorities seem wdl agreed that in a case like this, where the consort's estate is a con- ditional limitation determinable upon a contingency necessarily in- volving the death of the consort, curtesy and dower are freely al- lowed."' If, however, the event upon which the consort's estate is to ter- minate is one not involving the consort's death, as in case of a de- vise "to W. and her heirs, but if B. returns from abroad then at once to B. and his heirs, "W. has an estate which may terminate in her lifetime and go over to B., in which case, should B. return during W.'s life, curtesy (or in a corresponding case, dower) could not be annexed by law as a "prolongation" or continuation of W.'s estate (though her estate comes to its regular expiration, without impairing her previous seisin), and hence curtesy (or dower) must be denied."^ Finally, should B. return from abroad after W.'s death, the cur- tesy (or dower) which has attached in the meanwhile, it would seem, continues to exist as a prolongation of the estate of the con- sort who has died seised ; the previous seisin of the consort having been in no wise impaired by the passing of the estate to B. upon his return."^ § 234. Same — Destruction of Subject-Matter of Consort's Es- tate. If the subject-matter in which the consort's inheritance is to 89 The theory of conditional limitations and the principles controlling them are fully discussed' elsewhere. See post, §§ 480, 680, et seq. 90 2 JXin. Insts. 132; 1 Washburn, Real Prop. 272 et seq. ; 1 Atkinson, Con- vey. 258 ; Buckworth v. Thirkell, 3 Bos. & Pul. 652, note ; Moody v. King, 2 Bing. 447 ; Medley v. Medley, 27 Grat. (Va.) 568 ; Tomlinson v. Nickell, 24 W. Va. 148 ; Hatfield v. Sneden, 54 N. Y. 285 ; McMasters v. Negley, 152 Pa. 803, 25 Atl. 641 ; Hay v. Mayer, 8 Watts (Pa.) 203, 34 Am. Dec. 453 ; Evans t. Evans, 9 Pa. 190 ; Webb v. Trustees of First Baptist Church, 90 Ky. 117, 13 S. W. 362 ; Northcut v. Whipp, 12 B. Mon. (Ky.) 65 ; Daniel v. McManama, 1 Bush (Ky.) 544 ; Pollard v. Slaughter, 92 N. C. 72, 53 Am. Rep. 402 ; Milledge V. Lamar, 4 Desaus. (S. C.) 617, 637. But see Edwards v. Bibb, 54 Ala. 475 ; 4 Kent, Com. 50 ; Park, Dower, 178 et seq. ; 2 Sugden, Powers, 31 ; 3 Preston, Abst. Tit. 373. 81 See 1 Washburn, Real Prop. 180; 2 Min. Insts. 133. » 2 Ante, § 231. (197) § 234 CURTESY— DESTRUCTION OF CONSORT'S PHOPERTT. [Ch. 12 be enjoyed ceases altogether to exist, of course there can be no curtesy nor dower therein. °^ Thus, if the consort's property consists in a building or part of a building (without owning the land on which it rests), and the building is burned down and not rebuilt during the coverture, it is obvious that there is nothing left wherein curtesy or dower may be enjoyed.^* So, where one makes a gift in tail, reserving a rent payable'' throughout the term, marries, has issue and dies in the lifetime of the tenant in tail, and then the tenant in tail dies without issue, the consort could have no curtesy nor dower in the rent because it has ceased to exist with the estate tail for which it was the compensa- tion ; nor in the land because the donor in tail was never seised of that during the coverture. But if the donor were still living when the donee in tail dies without issue, the land would revert to the donor during the coverture, and curtesy or dower would be allow- ed therein.'^ 93 2 Min. Insts. 133, 155. o*As to tlie right of tenant by tlie curtesy or In dower to the Insurance money, supposing the house insured, see ante, § 202. 65 2 Min. Insts. 183, 155; 1 Th. Co. Lit. 561; 1 Bright, Husb. and Wife, 132. (198) CHAPTER XIII. LIFE ESTATE IN DOWER. 235. Points of DifEerence between Dower and Curtesy. 236. Several Species of Dower at Common Law — Enumeration. 237. Definition of Dower at Common Law. 238. Origin and Design of Dower. 239. Requisites of Dower — Enumeration. 240. I. The Marriage. 241. II. Tlie Husband's Seisin. 1. Seisin In Fact or in Law. 242. 2. Husband's Seisin Unlawful. 243. S. Husband's Right of Entry or Action. 244. 4. Husband's Seisin Beneficial. 245. 5. Husband's Seisin Transitory or Momentary. 246. 6. Sole Seisin of Husband. 247. 7. Seisin of Husband as Partner in Trade. 248. III. The Husband's Inheritance. 249. 1. Husband must be Seised during Coverture of an Estate of Inheritance. 250. 2. Doctrine of "Dos de Dote, Petl Non Debet." 251. Judgment for Dower on Behalf of Senior Widow Equiva- lent to Assignment Thereof. 252. 3. Effect of an Intervening Vested Freehold Estate. 253. 4. Effect of an Intervening Contingent Freehold Estate. 254. 5. Husband's Inheritance must be Heritable by the Issue (if Any) as Heirs of the Husband. 255. IV. Death of the Husband. 256. V. Dower a Prolongation of Husband's Inheritance Annexed by Law. 257. Dower in Equitable Estates of the Husband. 1. In General. 258. 2. Equitable Conversion — Dower in Money Directed to be Invested in Land. 259. 3. Dower in Vendee's Equitable Estate under a Contract to Convey Land. 260. Dower In Mortgaged Land. 1. Dower Paramount to Mortgage. 261. 2. Dower Subordinate to Mortgage. 262. 3. Dower before Foreclosure. 263. 4. Dower after Foreclosure. 264. Dower in Rents, Franchises and Other Incorporeal Property. 265. Dower in Mines and Quarries. 266. Dower in Wild and Uncultivated Lands. 267. Dower in Lands Exchanged. 268. Dower In Crops. 269. I. General Nature of Wife's Contingent Right of Dower. 270. II. Effect of Alienage of Husband or Wife in Preventing Creation of Contingent Dower Right. 271. III. Effect of Antenuptial Conveyance by Husband in Preventing Contingent Dower. (199) LIFE ESTATE IN DOWEE. [Oh. 13 § 272. IV. Sundry Devices to Prevent Wife's Inctioate Dower from Ac- cruing — In General. 273. 1. First Device to Prevent Dovi^er— Objections Tliereto. 274. 2. Second Device, and the Objections Thereto. 275. 3. Third Device, and the Objections Thereto. 276. 4. Fourth Device, and the Objections Thereto. 277. V. Ck>ntingent Dower Barred or Defeated after It has Accrued — Discussion Outlined. 278. (I) Dower Barred by Recovery of Land under Title Para- mount. 279. (II) Dower Barred by Divorce. 280. (Ill) Dower Barred by Wife's Elopement and Living in Adultery. 281. (IV) Dower Barred by Wife's Joinder with Husband in Transfer. 282. 1. Common-Law Doctrine as to Married Women's Conveyances. 283. 2. Effect of Wife's Joinder in Husband's Conveyance. 284. 3. Effect of Wife's Joinder in Husband's Void Con- . veyance. 285. 4. Effect of Wife's Joinder in Husband's Mortgage or Deed of Trust. 286. 5. Effect of Joinder of Wife Who Is an Infant, In- sane or under Disabilities. 287. Specific Enforcement in Equity of Husband's Contract to Convey Land. 288. (V) Jointure as a Bar to Dower. 1. Origin. 289. 2. Requisites for Jointure under the English Statute of Uses. 290. 3. Equitable Jointure. 291. 4. Law Controlling Whether Provision for Wife Bars Dower. 292. 5. Effect of Loss of Jointure. 293. 6. Advantages of Jointure over Dower. 294. (VI) Effect of Wife's Agreement with Husband to Relinquish Her Dower. 295. (VII) Wife's Dower Barred by Estoppel. 296. VI. (Commuted Value of Contingent Dower Interest. 297. Dower Consummate — Discussion Outlined. 298. I. Inchoate Dower Converted into Dower Consummate. 299. II. Widow's Rights and Duties before Assignment of Dower. 1. In General. 800. 2. The Widow's Quarantine. 301. 3. Relative Priorities as between Dower and Husband's Debts. A. Debts Contracted before Marriage. 302. B. Priorities as between Dower and Husband's Debts Contracted after Marriage. 303. III. The Assignment of Dower. (I) Valuation of Lands Whereof Widow Is Dowable as against Husband's Heir or Devisee. 804. (II) Valuation of Dower Lands as against Husband's Alienee. (200) Ch. 13] DOWER CONTKASTED WITH CURTESY. § 235 4 305. (Ill) To Whom Dower is to be Assigned. 306. (IV) By Whom Dower is to be Assigned. 307. (V) The Instrument of Assignment — Warranty. .H08. (VI) Conditional Assignment of Dower. 309. (VII) Dower Assignable Only out of Dowable Lands. 310. (VIII) Jlodes of Setting Apart Dower. 311. (IX) Compulsory Assignment of Dower. 1. T,egal Process to Compel Assignment. 312. 2. How to Set Apart Dower upon Legal Process. 313. 3. Damages Recovered in Suit for Dower. 314. IV. Widow's Rights and Duties after Assignment of Dower. § 235. Points of Difference between Dower and Curtesy. In the main the principles regulating dower are closely analogous to those regulating curtesy, and hence much that has been said in the preceding chapter touching curtesy must be here repeated, though perhaps in somewhat different form or connection. On the other hand, some of the principles appearing in the following sec- tions for the first time might equally have been applied to curtesy. There are, however, certain essential differences between the two estates, and a principle applicable to dower, in some respect where- in it differs from curtesy may not be applicable to the latter. The differences between these two analogous estates depend mainly upon either (1) differences in the requisites of the two es- tates ; or (2) in the quantity of land to which the estate attaches ; or (3) in the sex and condition of the persons to whom the rights respectively accrue. So far as the requisites are concerned, the dower interest differs from that by the curtesy in that (1) dower is permitted in estates of inheritance whereof the husband is seised in law as well as in fact ; ^ and (2) in not requiring that there should be any issue born of the marriage.^ In respect to the quantity of land passing to the tenant by the curtesy and the tenant in dower, respectively, while the tenant by the curtesy obtains the whole of his wife's lands of inheritance up- on her death,^ the tenant in dower is entitled to an undivided one- third of the husband's lands of inheritance, which undivided por- tion is converted into an interest in severalty only by the assign- ment of her dower to the widow by him who has the inheritance, or freehold, or by order of court.* This assignment of dower, which 1 Post, § 241. For the requisite of seisin for curtesy, see ante, § 210 et seq. 2 Post, § 254 ; 2 Min. Insts. 183. For curtesy issue must be born alive dur- ing the coverture. Ante, § 226 et seq< 3 Ante, § 208. * Post, §§ 306, 310, 311 ; 2 Min. Insts. 183. § 235 DOWER CONTRASTED WITH CURTESY. [Ch. 13 is entirely unnecessary in the case of curtesy, since the husband is entitled to the whole of the wife's lands, gives rise to many ques- tions in relation to dower which do not appear at all in the case of curtesy. In respect to the sex and condition of the tenants, respectively, important differences between the two estates arise by reason of the fact that the tenant by the curtesy is the husband, who is gen- ^rall)^ sui juris during the coverture, and not dependent upon, nor usually obtaining, support from his wife, while the tenant in dow- er is the wife, under disability at common law throughout the cov- erture while the dower is inchoate or contingent, and after her husband's death in general dependent upon the means of support and the provision he has left her. These conditions constitute a very essential difference between the tviro, the fruits of which appear in too many different ways to be here enumerated, but which will unfold themselves to the thoughtful student as he reads the discus- sion to follow, and compares the dower rights and obligations of the wife with the curtesy rights and obligations of the husband. § 236. Several Species of Dower at Common Law — Enumera- tion. The older writers enumerate several species of dower, name- ly: (1) Dower ad ostium ecclesiae; (2) dower ex assensu patris; (3) dower de la plus belle ; (4) dower by the custom of particular places; and (5) dower at common law, or more properly, common dower.^ Of these, the last is the only one recognized in this country, and is the one which constitutes the subject for discussion in this chap- ter. As the other kinds of dower have only a historical interest in this country, the student who is interested in the subject must be referred to an older work for information." § 237. Definition of Dower at Common Law. Dower at com- mon law is defined as follows : Where a woman marries a man lawfully seised at any time dur- ing the coverture of an estate of inheritance, such as that the issue of the marriage (if any) may by possibility inherit it as heirs to the husband, and the husband dies, the wife, surviving, as tenant- in dower, is entitled to have one-third thereof assigned her for her life as a prolongation of the husband's estate annexed by law.' It will be observed that the definition of dower at common law differs from that of curtesy before given ' in that (1) the common 6 2 Min. Insts. 155, 156 ; 2 Bl. Com. -132 et seq. 6 2 Min. Insts. 134, 153 ; 1 Th. Co. Lit. 569, 578. 'Ante, § 208. (202) Ch. 13] DOWEE THE MAKHIAGB. § 240 law does not permit dower in equitable inheritances, while it does permit curtesy therein ; * (2) no issue need be born of the marriage in order that the wife may take dower, while for curtesy the birth of issue alive during the coverture is essential;" (3) the wife as tenant in dower takes only one-third of the deceased husband's lands, which being undivided necessitates an assignment of her par- ticular third, while the tenant by the curtesy takes the whole, and therefore needs no assignment to identify the land to which he is entitled ; ^° and (4) the tenant in dower is the widow,while the ten- ant by the curtesy is the husband. § 238. Origin and Design of Dower. Dower seems to have originated among the Germans. The feudists recognized it in the maxim, "Non uxor marito, sed uxori maritus affert." The usage was for the husband and oldest son to go to war, whilst the wife and other children tilled the soil and raised provisions for the sol- diers. Hence, as she had the third part in toil, upon her husband's death she was allowed a third part of the feud for her life for the maintenance of herself and the younger children. The Saxons ap- pear to have first introduced it into England, and the Normans to have regulated it according to the usages of Normandy. ^^ Though originally designed for the sustenance of the widow and the nurture and education of the younger children, the latter ob- ject is in modern times merged in the former, and she is under no legal obligation to employ her dower for the latter purpose.^^ It is also in modern times regarded as a means of equalizing the mari- tal rights of the husband and wife, respectively, in the property of the other.^^ § 239. Requisites of Dower — Enumeration. The requisites of dower may be enumerated as follows : (1) The marriage ; (2) the seisin of the husband ; (3) the husband's estate of inheritance ; (4) the death of the husband ; and (5) the prolongation or continuation of the husband's estate. § 240. I. The Marriage. The same principles apply here as in the case of curtesy.^* It suffices to repeat that if the marriage is void per se, or, where voidable only, if it be avoided in the lifetime of both parties, or if the marriage status be dissolved by a divorce s Ante, § 223 ; post, § 257 et seq. The reasons for this difference will ap- pear hereafter. See post, § 257. 8 Ante, § 226 et seq. 10 2 Min. Insts. 183. 112 Min. Insts. 13.5; Bac. Abr. Dower; 1 Th. Co. Lit. 567, note (A). 12 2 Min. Insts. 135; 2 Bl. Com. 129, 130; 1 Th. Co. Lit. 567, note (1) ; 1 Scribner, Dower, 23 et seq. ; Fuller v. Conrad, 94 Va. 238, 26 S. E. 575. 13 2 Min. Insts. 135. i* Ante, § 211. (203) § 241 DOWER — husband's seisin in fact ok law. [Ch. 13 a vinculo, no dower is allowed ; the maxim of the common law be- ing, "Ubi nullum matrimonium, ibi nulla dos." ^^ § 241. II. The Husband's Seisin — 1. Seisin in Fact or in Law. While curtesy, as has been shown,^^ requires seisin in fact (actual or constructive) on the wife's part at some time during the cover- ture, seisin in law being sufficient only where a seisin in fact is im- possible, the requirement for dower is less rigorous. For dower the husband must at common law be seised at some time during the coverture ; but his seisin may be either in fact or in law. Seisin in fact is dispensed with for dower, because "it lieth not in the pow- er of the wife to bring the husband's land to an actual seisin, as the husband may do of the wife's land." ^' As in curtesy, the seisin need not continue during the whole cov- erture. It is enough if it exists beneficially in the husband for ever so short a period during the coverture. The husband's alienation after marriage, without the wife's assent, or his disseisin by a wrongdoer (unless for a period prior to the husband's death which bars his title by the statute of limitations), will not affect the wife's claim. ^* § 242. Same — 2. Husband's Seisin Unlawful. As in the case of curtesy, in order that dower may attach, the husband's seisin must be lawful so far as relates to the persons against whom the widow is claiming dower. But the unlawfulness of the husband's seisin defeats the dower only as to those persons who possess a bet- ter right to the land than the husband does. Strangers cannot take advantage thereof; but as against those having a superior title, neither the husband nor the successor to his title — that is, the dow- ress — can set up an inferior title. ^* Thus, if the deed to the husband is void as to third persons be- cause unrecorded, or made with intent to defraud creditors, etc., while the wife would be denied dower as against such third persons, she is entitled thereto as against all others as to whom the hus- band's seisin is valid and binding.^" IB Ante, § 211 et seq. ; 2 Min. Insts. 135 et seq. ; 1 Th. Co. Lit. 557, note (B), 561, 571, note (C) ; 1 Washburn, Real Prop. 221, 254; Harris v. Harris, 31 . Grat. (Va.) 33, 34 ; Van Cleaf v. Burns, 118 N. Y. 549, 23 N. E. 881, 16 Am. St. Rep. 782 ; Carr v. Carr, 92 Ky. 552, 18 S. W. 453, 36 Am. St. Rep. 614. See 1 Scribner, Dower, c. 6 et seq. The validity of a foreign marriage is usually controlled by the lex celebrationis of the marriage. Minor, Confl. Laws, §§ 73, 77, 78 ; 1 Washburn, Real Prop. 222, 223 ; 1 Scribner, Dower, 147. 10 Ante, § 214. 17 1 Th. Oo. Lit. 574; 2 Min. Insts. 138, 139; 1 Scribner, Dower, 263; ante, I 214. 18 2 Min. Insts. 139 ; 1 Th. Co. Lit. 568, note (B), 609. 19 Washburn, Real Prop. 227, 228. 20 Emerson v. Harris, 6 Mete. (Mass.) 475. (204) Ch. 13] DOWER — husband's seisin beneficial. § 244 So the widow of a disseisor is entitled to dower in the lands of which her husband has been illegally seised during the coverture, except as against him who is rightfully entitled to the seisin. ^^ Hence a recovery of the land from the husband in an action of eject- ment (which determines the plaintiff's title to be better than that of the husband) bars the wife's dower.^^ This, however, is sub- ject to the qualification that if the recovery is obtained from the husband by his collusion, with a view to defeat the wife's dower, his fraud shall be unsuccessful. A collusive recovery of this kind does not bar the wife's dower.^^ But it was much questioned at common law whether a recovery against the husband by mere default, without evidence of his con- currence in a design to defeat his wife's dower, would not operate as a bar thereto. Indeed, the better opinion seems to be that at common law such a recovery does bar dower.^* Hence by statute Westm. II, 13 Edw. I, c. 4, it was provided in England that the widow shall have her dower notwithstanding such recovery by de- fault against the husband. ^^ § 243. Same— 3. Husband's Right of Entry or Action. If the husband is not only not himself seised of the land at any time during the coverture, but if through that entire period some one else is in adverse possession of the land, he has during the coverture only a right of entry upon the land or of action therefor.^' In this, at common law, the wife has no dower, as in a corresponding case the husband would have no curtesy,^^ because at no time during the coverture is the consort seised of the land, as the definitions of both estates require. ^^ But it is otherwise if, during the cover- ture, the husband reduces his right of entry or action into posses- sion, or if he is disseised after the marriage occurs.^' § 244. Same — 4. Husband's Seisin Beneficial. The mere fact that the husband is seised of the inheritance during the coverture does not suffice for dower, unless that seisin be for the husband's 211 Washburn, Real Prop. 228. 22 1 Th. Co. Lit. 618, note (R, 1) ; 1 Bright, Husb. and Wife, 350. 23 2 Jlin. Insts. 165. 2*2 Min. Insts. 165; Bac. Abr. Dower (F). 26 2 JMin. Insts. 165. 2 6 Ante, §§ 131, 214, 216. 27 Ante, § 216. 28 2 Jlin. Insts. 141; 1 Scribner, Dower, 255 et seq. ; Small v. Proctor, 15 Mass. 495; Thompson v. Thompson, 46 N. C. 431. 29 1 Washburn, Real Prop. 225. But a mere judgment in favor of the hus- band for the land is not suflBcient. The husband must have been actually put in possession of the land during the coverture.' 1 Scribner, Dower, 257. (205) § 244 DOWEE — husband's seisin beneficial. [Oh. 13 own use and benefit. While the mere use and benefit in the hus- band, standing alone (that is, the equitable estate alone), did not at common law confer dower upon the wife,'*" on the other hand it is equally well settled that the naked legal title in the husband during the coverture, the beneficial ownership being in another, gives the wife no right to dower. At least a court of equity will enjoin the widow from setting up a claim to dower founded upon such a seisin.'^ Thus the widow of a trustee or mortgagee is not entitled to dower in the land given in trust or mortgaged; the hus- band not being beneficially seised of the land."- This principle is applicable not only to express trusts, but to resulting, implied or constructive trusts also. Hence, if the land of which the husband is seised was paid for by the funds of an- other (which would create an implied trust in the husband for the benefit of him who advanced the consideration),^^ the widow receives no dower.^* So, also, if the husband secures a conveyance of land to himself by fraudulent misrepresentations under circum- stances entitling the grantor to hold the fraudulent grantee as a constructive trustee, and he does hold him accordingly, there is no dower on the part of such grantee's widow, though it is other- wise, if the defrauded grantor elects to confirm the transaction. ^° It follows from these principles that, where a trustee in a deed of trust to secure debts executes a deed of release, it is not neces- sary that his wife should unite in such release, since the wife of a mere trustee is not entitled to dower. '^^ Another prominent illustration of the same principle is to be found in cases where the husband before marriage contracts to convey land, but never actually conveys the legal title, or, if he does so after his marriage, fails to unite his wife with him in the deed. In such cases the wife is not entitled to dower, for in equity (the court regarding that as done which ought to be, or is agreed to be, done") the husband is during the coverture a mere trustee of the land for his vendee, holding only the bare legal title. '* And 30 Post, § 2.57 et seq. ; ante, § 224. 312 Min. Insts. 147; 4 Kent. Com. 43; Hinton v. Hinton, 2 Ves. Sr. 634. 32 2 Min. Insts. 147 ; 2 Bl. Com. 137, note (30) ; 1 Th. Co. Lit. 576, note (25). 3 3 Post, § 421 et seq. 34 Tliompson v. Perry, 2 Hill, Eq. (S. C.) 204, 29 Am. Dec. 68. 3 5 See McNish v. Pope, 8 Rich. Eq. (S. C.) 112. 36 2 Jlin. Insts. 147; 2 Bl. Com. 137, note (30). 3 T Ante, § 18; post, § 420. 38 2 Min. Insts. 147; Burdine v. Burdine, 98 Va. 515, 523, 36 S. E. 992, 81 Am. St. Rep. 741 ; Oldham v. Sale, 1 B. Mon. (Ky.) 77 ; Firestone v. Fire- stone, 2 Ohio St. 415. This applies as well to contracts to devise as to con- (206) Oh. 13] DOWER — husband's seisin transitory. § 245 it appears to be immaterial whether or not the vendee be in default in the payment of the purchase money throughout the vendor's coverture; his mere default not giving the vendor the right to re- enter and take possession until the vendee has had reasonable no- tice and an opportunity to amend his fault. ^^ § 245. Same — 5. Husband's Seisin Transitory or Momentary. In order to dower, the law requires that the husband should be beneficially seised at some time during the coverture, but the period and duration of the enjoyment of such seisin is immaterial.*" Thus, where a father, seised of land, and his son were hanged from the same cart, the son being observed to struggle a little longer, the father's land was held to have descended upon the son for the brief span of his existence after the father's death, and the son's widow was therefore dowable.*^ The same principle applies in the case of liens placed upon the land by the husband immediately after acquiring the property, provided the acquisition of the property and the subsequent lien are independent transactions. But if the purpose of the subsequent lien is merely to secure the payment of the purchase money by the husband, in pursuance of a prior understanding between the par- ties that such lien should be given, the execution of the mortgage, deed of trust, etc., though in fact subsequent to the conveyance to the husband, is in contemplation of law contemporaneous there- with, so that the intermediate seisin of the husband is not to be regarded as for his benefit. In such case, even though the husband die without executing the lien agreed upon, his wife is denied dower, and hence it is unnecessary that she should unite in such mortgage or deed of trust when it is executed.*^ ve.y land. Burdine v. Burdine, supra. In Gaines v. Gaines, 9 B. Mon. (ICy.) 205, 48 Am. Dec. 42.n, 428, it was lield tliat the same principle is applicable where the husband had before marriage made a bona fide gift to a child of a former marriage who took possession and improved the land, claiming it as his own, before the coverture. 3 Chapman v. Chapman, 92 Va. 537, 539, 24 S. E. 225, 53 Am. St. Rep. 823. 40 2 Min. Insts. 139, 146 ; 1 Th. Co. Lit. 576, notes (G), (H) ; 2 Bl. Com. 131 ; 1 Washburn, Real Prop. 228 ; Bac. Abr. Dower (e, 2) ; McCauley v. Grimes, 2 Gill & J. (Md.) 318, 20 Am. Dec. 434 ; McClure v. Harris, 12 B. Mon. (Ky.) 261; Douglass v. Dickson, 11 Rich. L. (S. C.) 417; Wheatley v. Calhoun, 12 Leigh (Va.) 274, 37 Am. Dec. 654. 41 Brougton v. Randall, 2 Cro. (Eliz.) 503 ; 2 Min. Insts. 146 ; 2 Bl. Com. 132 ; 1 Washburn, Real Prop. 228. 4 2 2 Min. Insts. 146; 1 Washburn, Real Prop. 229 et seq. ; Mayburry v. Brien, 15 Pet. 21, 39, 10 L. Ed. 646; Wheatley v. Calhoun, 12 Leigh (Va.) 274, 37 Am. Dec. 654; Eslava v. Lepretre, 21 Ala. 504, 56 Am. Dec. 266; Clark v. (207) § 245 DOWER — husband's seisin tbansitoby. [Gh. 13 Thus, in McCauley v. Grimes/^ for the purpose of dividing cer- tain land amongst a number of heirs, the land was conveyed to H., who executed bonds to the several heirs for the payment of their shares, securing the bonds by a mortgage upon the land ; H.'s wife not uniting in the mortgage. It was held that she was only entitled to dower therein subject to the mortgage. The same principle is to be applied where a conveyance is made to the husband with a vendor's lien to secure the purchase price, whether such vendor's lien be expressly reserved in the conveyance or implied by law (where the implied vendor's lien has not been aboHshed).** In such case the vendee's widow is denied dower in the land conveyed because, quoad the vendor's lien, the vendee is not beneficially seised. *° But it must not be overlooked that if the lien be created in pur- suance of an after arrangement, not in the contemplation of the parties when the land was acquired, the husband's seisin, how- ever brief, is beneficial, and the wife takes dower, unless she has united with the husband in the execution of the mortgage or deed of trust.*^ § 246. Same — 6. Sole Seisin of Husband. If the husband be a joint tenant, the common-law doctrine is that upon his death the land goes to the surviving tenants ; those claiming under him by title arising subsequent to his death, such as his heirs, his devisees and his widow, being cut out, unless he survives all the other ten- ants, or unless the joint tenancy is destroyed before his death. *^ But a widow may be endowed, even at common law, of the lands held by her husband as tenant in common or in coparcenary; no right of survivorship being recognized in these cases. ^^ In such cases the dower must be assigned to the widow, to be held (as the husband himself was seised) undividedly with the co- tenants; the widow becoming herself a co-tenant with them. But any of the co-tenants, including the dowress, though she is only Munroe, 14 Mass. 351; Stow. v. Tifft, 15 Johns. (X. Y.) 458. 8 Am. Dec. 260; MeCauley v. Grimes, 2 Gill & J. (Md.) 318, 324, 20 Am. Dec. 434. 4 3 2 Gill & J. (Md.) 318, 20 Am. Dec. 434. *4 See 2 Washburn, Real Prop. (6th Ed.) § 1028, for the statutes in the vari- ous states on the subject of the vendor's lien. 45 2 Min. Insts. 146; Culbertson v. Stevens, 82 Va. 406, 4 S. E. 007; Patton V. Stewart, 19 Ind. 233 ; Warner v. Van AlstjTie, 3 Paise (N. Y.) 513. 40 2 Min. Insts. 146; 1 Washburn, Real Prop. 233; Blair v. Thompson, 11 Grat. (Va.) 441; Gage v. Ward, 25 Me. 101. 47 Post, § 732; 2 Min. Insts. 139; Mayburry v. Brien, 15 Pet. 21, 10 L. Ed. 646. 4S2 Min. Insts. 139; 1 Washburn, Real Prop. 208. (208) Ch. 13] DOWEE — husband's inheritance. § 248 tenant for life, may then demand a partition, so as to hold in severalty.*" If the husband be a co-tenant, and upon a partition suit a decree be made in his lifetime for the sale of the land for purposes of par- tition, there is a dififererice of opinion as to whether the wife, not having been made a party to the suit, is divested of her dower by the decree and sale as against the purchaser at the sale. The better view, even independently of statute, is that her dower rights are„ divested.^" § 247. Same — 7. Seisin of Husband as Partner in Trade. We" have seen elsewhere ^^ that land held by a partnership, if purchased with partnership funds and for partnership purposes, is according to the better opinion to be regarded in equity as converted out and out into personalty, not only for the purpose of paying the part- nership debts, as some of the authorities hold,^^ but for all pur- poses, as between the members of the firm or as between the sur- viving partners and the representatives of the deceased. ^'^ Under the latter view it is apparent that the widow of a deceased partner must be denied dower altogether in such case, even in the surplus left after pa}-ing all the partnership debts. '^^ § 248. III. The Husband's Inheritance. Under this head we shall consider the following points : (1) The general requirement that the husband must be seised of an estate of inheritance during the coverture; (2) the doctrine of "Dos de dote peti non debet"; (3) ■19 2 Min. Insts. 1.59; 1 Tli. Co. Lit. 593, note (C, 1); Pan-ish v. Pan-lsh, 88 A'a. .')29. 14 S. E. .32o. 50 2 Min. Insts. 139; 1 Washburn, Real Prop. 208; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262; Weaver v. Gregg, Ohio St. .547, 67 Am. Dec. 35,5; Warren v. Twille.y, 10 Md. 39. See Coles v. Coles, 15 Johns. (N. Y.l .■522. Even in case of a voluntary partition in which the husband unites, the better opin- ion seems to be that the partition, if fair and just to her, cuts off the wife's dower in the lands allotted to the husband's co-tenants, though she do not as- sent thereto. See Lee v. Lindell, supra; Mosher v. ilosher, 32 ile. 414. 51 Ante, § 19. 52 1 Washburn, Real Prop. 209; Howard v. Priest, 5 Mete. (Mass.) 582: Goodburn v. Stevens, 1 Md. Ch. 437, 5 Gill, 1 ; JIarkham v. Merrett, 7 How. (Miss.) 437, 40 Am. Dec. 7ii; Willet v. Brown, fi.'i Mo, 138, 27 .\m. Rep. 2(j5. 53 Ante, § 19; 2 Min. lusts. 140; Phillips v. Phillips, 1 My. & K. 649; Ran- dall V. Randall, 7 Sim. 271; Brooke v. Washington, 8 Grat. (Va.) 2."i5, 56 Am. Dec. 142; Buck v. Winn, 11 B. Mon. (Ky.) 326; Galbraith v. Gedge, 16 B. Mon. (Ivy.) 631; Andrews v. Brown, 21 Ahx. 437. 56 Am. Dec. 252; Sigourney v. Munn, 7 Conn. 11. But see Davis v. Christian, 15 Grat. (Ya.) 36. 54 2 Min. Insts. 140; Parrish v. Parrish, 88 Va. .")2;>, r,S2, 14 S. E. 325 ; Sumner T. Hampson, 8 Ohio, .328, 32 Am. Dec. 722; Duhring v. Duhring, 20 Mo. 174. Under the other view the partner's widow is entitled to dower in the surplus.- See 1 Washburn, Real Prop. 209. Minor & W.Re.\l Prop.— 14 (209) § 249 DOWER SEISIN DURING COVERTURE. [Ch. 13 the effect of the interpolation of a vested freehold estate between the immediate freehold in possession and the first estate of inherit- ance; (4) the effect of the similar interpolation of a contingent free- hold estate; and (5) the husband's estate of inheritance must be such as that the issue of the marriage (if any) may inherit it as heirs to the husband. § 249. Same — 1. Husband must be Seised during Coverture of an Estate of Inheritance. In accordance with the terms of the definition of dower it is essential that the husband shall at some time during the coverture be seised of an estate of inheritance, such as that the issue of the marriage (if any) may inherit it as heirs to the husband. °° Hence it is not sufficient that the husband throughout the cover- ture is merely entitled to the inheritance by way of reversion or remainder after a freehold estate in another, for the requirement that he be "seised" of the inheritance implies that the husband must have the actual possession and enjoyment thereof, which is incon- sistent with the seisin of a freehold estate in another lasting throughout the coverture.^" But if the estate preceding the hus- band's reversion or remainder be only a term for years, though it actually last throughout the coverture, the seisin of the inheritance is in the husband all the time. The existence of such a term for years presents no obstacle to the wife's dower.°^ On the other hand, the husband's seisin of a mere life estate throughout the coverture is not sufficient for dower. He must be seised of the inheritance itself at some time during the cover- ture.^^ But if the husband unites both of these conditions in himself, and lias at some time during the coverture both the immediate seisin 'of the freehold and the inheritance by way of reversion or remain- der, the estate of inheritance merges the lesser freehold, and the husband is thereafter directly seised of the inheritance itself, un- Bs Ante, § 237. 50 2 Mill. Insts. 150; Cocke v. riiilips, 12 Leigh (Va.) 248; Safford v. Saf- ford, 7 Paige (N. Y.) 259, 32 Am. Dec. 633; Wilmarth v. Bridges, 113 Mass. 407 ; Houston v. Smith, 88 N. C. 312 ; Young v. Morehead, 94 Ky. 608, 23 S. W. 511; Gardner v. Greene, 5 E. I. 104; Durando v. Durando, 23 N. Y. 331. 6T1 Scribner, Dower, 230; Co. Lit. 32a; Boyd v. Hunter, 44 Ala. 705; Weir V. Tate, 39 N. 0. 264 ; Sykes v. Sykes, 49 Miss. 190. 58 2 Min. Insts. 150; Gillis v. Brown, 5 Cow. (N. Y.) 388; Thompson v. Vance, 1 Mete. (Ivy.) 669; Trumbull v. Trumbull, 149 Mass. 200,- 21 N. E. 366, 4 L. R. A. 117; Kenyon v. Kenyon, 17 R. I. 539, 23 Atl. 101, 24 Atl. 787; Fisher v. Grimes, Smedes & M. Ch. (Miss.) 107. Thus, where the husband is "seised of an estate pur auter vie aud dies before cestui que Tie, the wife is denied dower. Gillis v. Brown, supra; Fisher v. Grimes, supra. (210) Ch. 13] DOWER SEISIN DURING COVERTURE. § 249 less such merger is prevented by the fact that a freehold estate in another intervenes between the immediate freehold in possession and the first estate of inheritance.^*" The effect of such interven- tion of a freehold estate will be considered more fully hereafter."" To illustrate these principles : (1) If a man leases land to another for life, reserving- a rent throughout the term, then marries, and dies before the lease has expired, his widow is denied dower in the land, because the hus- band at no time during the coverture has the immediate free- hold thereof in possession, but only the reversion after a freehold in another; nor could she take dower in the rent, because in that the husband has only an estate corresponding to that of the lessee in the land (that is, an estate for life)."^ On the other hand, should the man lease only for a term of years, then marry, and die before the term has expired, the wife is dowable, for the husband has never parted with the freehold or with the inheritance. She does not, indeed, oust the tenant for years, whose claim is paramount to hers; but she is dowable in the reversion of which the husband is seised during the coverture, and as the owner of one-third of the reversion for her life she has one-third of the rent, which fol- lows the reversion."^ (2) If a conveyance be made "to A. for ten years, remainder to B. and his heirs," though B. die before A.'s ten-year term has ex- pired, his widow is to be endowed, for B. is seised of the inheritance during the coverture; A.'s possession of the term for years not interfering with B.'s seisin."^ But if the conveyance be "to A. for h'fe, remainder to B. and his heirs," if B. dies first, B.'s widow is not entitled to dower, because at no time during B.'s coverture has 69 2 Min. Insts. 150; 1 Th. Co. Lit. 560, notes (B), (P), 582, note (M) ; Park. Dower, 57; 1 Scribner, Dower, 230, 235, et seq. ;. 4 Kent, Com. 40; El dredge V. Forrestal, 7 Mass. 253 ; Moore v. Esty, 5 N. H. 479. See House v. Jackson, 50 N. Y. 161. 60 Post, §§ 252, 253. 812 Min. Insts. 151; 1 Th. Co. Lit. 559, 560, note (10), 582, 583; Blow v. Maynard, 2 Leigh (Va.) 30, 56; Houston v. Smitli, 88 N. C. 312. If the lease -were in fee, then the husband -would be seised of the rent in fee during the •coverture, and the widow -would take dower therein. But if in the latter case the grantor of the land, before marriage, should buy back an estate in the land for his own life (whereby the whole rent is suspended during his life- time), and then marries and dies, his widow could riot be endowed either of the rent or of the land. 2 Min. Insts. 151; 1 Th. Co. Lit. 560. 82 2 Min. Insts. 151; 1 Th. Co. Lit. 559, 560, note (10), 582, note (40); Stough- ton V. L*gh, 1 Taunt. 410 ; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 278 ; Weir v. Tate, 39 N. C. 264. 63 1 Washburn, Real Prop. 204, 205; Bates v. Bates, 1 ,Ld. Raym. 326; Hitchens v. Hitchens, 2 "Vern. 403. (211) § 249 DOWER — SEISIN DDEING COVERTURE. [Ch. 13 B. the immediate freehold in possession (or the seisin), but only a remainder in fee simple after a freehold estate in another.** If, however, A. should die before B., while A.'s widow would not be dowable, because A. has not the inheritance, his death gives B. the immediate seisin of his estate of inheritance, and upon B.'s death B.'s widow is dowable."^ (3) Again, in the example, last given ("to A. for life, remainder to B. and his heirs"), if during the lifetime of both parties either should buy up the other's estate, so as to give to the same party both the immediate freehold in possession and the first estate of inheritance, without an intervening freehold estate, the inheritance merges or extinguishes the lesser freehold, and thenceforth the par- ty is immediately seised of the inheritance itself, and his wife is dowable, whether A. or B. dies first.^" § 250. Same— 2. Doctrine of "Dos da Dote, Peti Non Debet." It is an established principle of the law of dower that the widow's title dates from the moment of her husband's death, and though it be not assigned in specific land until later, yet when it is assigned the title thereto dates by relation from the husband's death, not from the time of assignment. The dower is a mere continuation of the husband's estate, cutting off any intermediate seisin in any one else."' Thus, if we suppose the husband to have derived his lands by devise or descent from his father, he must endow his father's widow, and thereupon her seisin, being a continuation of her hus- band's, defeats the seisin of the devisee or heir as to the one-third so assigned her, as from the date of the father's death. Hence, should the son die in the lifetime of the dowress, himself leaving a widow, the junior widow is dowable only of one-third of the re- maining two-thirds of the land, for of the one-third already assigned the senior widow as her dower the junior husband has never in contemplation of law been seised during the coverture ; such seisin as he obtained by devise or descent having been defeated, as of the time of his father's death and the beginning of his own title, by his subsequent assignment of dower to the senior widow. This is the 6*1 Washburn, Real Prop. 204; Cocke v. Philips, 12 Leigh (Va.) 248; Brooks V. Everett, 13 Allen (Mass.) 457; Durando v. Durando, 23 N. Y. 331; Arnold V. Arnold, 8 B. Mon. (Ky.) 202 ; Shoemaker v. "Walker, 2 Serg. & R. (Pa.) 554. 6s 1 Washburn, Real Prop. 204. See cases cited supra. 6 6 See post, § 605 et seq.; ante, § 201. 67 2 Min. Insts. 152; 1 Th. Co. Lit. 574, 575, notes (E), (F) ; 1 Washburn, Real Prop. 268, 269. (212) Ch. 13] DOWER DOS DE DOTE. § 250 doctrine expressed by the maxim, "Dos de dote, peti non debet" — that is, dower cannot be assigned out of dower."* If under like circumstances the heir or devisee dies before having assigned dower to the senior widow, the duty will then devolve upon his successor in the freehold to endow both widows. Should he endow the senior widow first, the same principles apply as be- fore. Such assignment defeats the junior husband's seisin as to her one-third from the beginning, and as to that portion creates in the junior husband during the coverture only a reversion after a life estate in the senior widow. The junior widow is dowable, there- fore, as before, only in the remaining two-thirds of the land.^" In neither of these cases, it should be observed, is the junior widow's dower to be increased after the death of the senior widow (the junior husband being then dead), for of the senior widow's share the junior husband is seised at no time during the cover- ture.'"' But if in the last case above mentioned the tenant of the freehold endows the junior widow first, and afterwards the senior widow, the endowment of the latter, it seems, defeats the assign- ment to the junior widow pro tanto; but after the senior widow's death the junior, according to the weight of authority, if not of reason, is restored to her dower in the whole land.'^ So far we have supposed the title of the junior husband to begin upon the death of the senior husband, under a claim by de- vise or descent. But if the junior husband takes the land from the senior in the latter's lifetime by conveyance, etc., a different result is obtained. In such case there is a period prior to the senior husband's death during which the junior husband is seised of the whole estate, which seisin is only defeated by the assignment of dower to the senior widow from the date of the senior husband's death, not from the date of the conveyance to the junior husband. Hence, while the senior widow is dowable of the whole land (sup- es 2 Min. Insts. 152; 1 Th. Co. Lit. 574, 575, notes (B), (F) ; 1 Washburn, Real Prop. 269: Blow v. Maynard, 2 Leigh (Va.) 29; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416; Dunham v. Osborn, 1 Paige (N. Y.) G34; Safford v. Safford, 7 Paige, 259, 32 Am. Dec. 633 ; Durando v. Durando, 23 N. Y. 331; Eldredge v. Forrestal, 7 Mass. 253; Robinson v. Miller, 2 B. Mon. (Ky.) 284, 288. 6 9 2 Min. Insts. 153; 1 Washburn, Real Prop. 269; 1 Scribner, Dower, 326; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416; McLeery v. McLeery, 65 Me. 172, 20 Am. Rep. 683. 7 Safford v. Safford, 7 Paige (N. Y.) 259, 32 Am. Dec. 633; Reynolds v. Reynolds, 5 Paige (N. Y.) 161. 71 2 Min. Insts. 153; 1 Th. Co. Lit. 575, note (F) ; 1 Washburn, Real Prop. 269 ; 1 Scribner, Dower, 327 ; In re Cregier, 1 Barb. Ch. (N. Y.) 598, 45 Am. Dec. 416; Reitzel v. Ecliard, 65 X. C. 673; Steele v. La Frambols, 68 111. -irjO. (213) § 250 DOWEE DOS DE DOTE. [Oh. 13 posing her not to have united with her husband in the conveyance), the junior widow is also dowable of the whole; that is, she takes by way of dower one-third of the whole land, which, however, is to be assigned out of the two-thirds remaining after the assign- ment of dower to the senior widow.''^ This principle is applicable in all cases where a married man purchases land by conveyance inter vivos from another married man, whose wife does not unite with him in conveying the land to the former, and also to cases where the grantee, though not married at the time of the conveyance, marries before the death of the grantor.'' § 251. Same — ^Judgment for Dower on Behalf of Senior Widow Equivalent to Assignment Thereof. It is in general necessary to the operation of the maxim Dos de dote that the senior widow's dower be actually assigned her, for it is upon the assignment that her title relates back to her husband's death, defeating the seisin of his successor.''* But an actual assignment of the dower is dispensed with if a court has rendered a judgment or decree for the senior widow's dower, though in fact she never takes posses- sion of it.'^ Thus, in Dunham v. Osborn,'" a bill was filed for the partition of certain lands subject to dower claims by the widows of succes- sive owners. The court decreed that the senior widow was entitled to dower in the whole, but ordered that the land be sold and that she take her dower out of the proceeds, while allowing the junior fz 2 Min. Insts. 15.3; 1 Th. Co. Lit. 574, 575, notes (E), (P) ; Bustard's Case, i Co. 122 ; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; Reynolds V. Reynolds, 5 Paige (N. Y.) 161 ; Dunham v. Osborn, 1 Paige (N. Y.) 634 ; Du- rando t. Durando, 23 N. Y. 331; Reitzel v. Eckard, 65 N. C. 673; Manning v. Laboree, 33 Me. 343. But see 1 Washburn, Real Prop. 269 et seq., where the view is taken that the junior widow takes dower in the whole, but subject to the dower of the senior widow; that is, she is to take at first only one-third of the remaining two-thirds, to be increased after the senior widow's death to one-third of the whole, upon the theory that, while the junior husband's seisin is mot defeated by the assignment of dower to the senior widow, it is inter- rupted during her lifetime. 73 1 Washburn, Real Prop. 270. It is otherwise If the grantee acquires the land after the senior husband's death, as by a conveyance from his executors. The doctrine, Dos de dote, applies in full force, as if the junior husband had taken by devise or descent. Fisher v. Grimes, 1 Smedes & M. Ch. (Miss.) 107. 74Ante, § 250. 7 6 Leavitt v. Lamprey, 13 Pick. (Mass.) 882, 23 Am. Dec. 685; Atwood v. Atwood, 22 Pick. 283 ; Dunham v. Osborn, 1 Paige (X. Y.) 634 ; Reynolds v. Reynolds, 5 Paige (N. Y.) 161; Safford v. SafEord, 7 Paige (N. Y.) 259, 32 Am Dec. 633 ; Elwood v. Klock, 13 Barb. (N. Y.) 50. 78 1 Paige (N. Y.) 634. (214) Oh. 13] DOWER INTERVENING VESTED FREEHOLD. § 252 Vifidow dower only in the remaining two-thirds of the proceeds. In this case the senior widow never took possession of any part of the land, nor had it been allotted to her by metes and bounds, but the court had decreed that she was entitled to dower, though it would have been inconvenient to have assigned it in the land it- self. The court's decree was regarded as equivalent to an actual assignment. On the other hand, in Elwood v. Klock,'" a vendor sold by his sole deed certain land to the vendee, who sold in the same manner to the defendant. After the vendor's death, his widow (the senior widow) sued at law for her dower, but before she recovered judg- ment therefor she released her dower to the defendant. The court held that the release merely extinguished the dower right of the senior widow, without passing any interest to the defendant, and that the widow of the first vendee had full dower rights, not subject to be defeated or interfered with by the senior widow's claim of dower (now extinguished). § 252. Same — 3. Effect of an Intervening Vested Freehold Es- tate. It has alreadjr been pointed out that for dower (and also for curtesy) it is essential that the consort should not only be seised durmg the coverture of a freehold estate, but he must be seised of the inheritance itself. He may be seised of the immediate estate of freehold in possession and of the estate of inheritance as separate estates ; but in such case the inheritance generally merges or extin- guishes the lesser freehold, leaving the consort seised directly and immediately of the inheritance itself.'* Thus, if an estate be given "to A. for life, remainder to B. and his heirs," and A. subsequently purchases B.'s remainder, a merger takes place, A. is seised directly of the inheritance, and A.'s widow is dowable.'" But it is a principle of the law governing merger that no merger of the lesser freehold occurs unless the inheritance is the next vested estate in remainder or reversion, without any intervening vested estate of freehold, and also without any intervening freehold inter- est by way of contingent remainder created at the same time and by the same act with the other estates.*" Hence the intervention of a vested freehold interest between the immediate freehold in posses- sion and the first estate of inheritance prevents a merger, whether all the estates are created by the same conveyance, as in case of a conveyance "to H. for life, remainder to B. for life, remainder to " 13 Barb. (N. Y.) 50. 's Ante, §§ 201, 249 ; post, § 665 et seq. 7 9 Beardslee v. Beardslee, 5 Bart). (N. Y.) 324. 80 Post, §§ 333, 601; 2 Min. Insts. 4ii4t 420; 2 Th. Co. Lit. 557, note (K); 3 Preston, Conv. 107 et seq. (215) § 252 DOWER INTERVENING VESTED FREEHOLD. [Ch. 13 H. and his heirs," or whether they arise at different times or by dif- ferent acts, as where H., seised in fee, conveys "to A. for life, re- mainder to B. for life" and then buys back A.'s life estate. In no such case does H. become seised directly of the inheritance, but only of the lesser freehold with a remainder or reversion of the inherit- ance, at least so long as B. is living. Applying these principles to dower (and curtesy), it will be per- ceived that if the circumstances are such that the lesser estate is merged in the inheritance *^ the husband is then seised during the coverture directly of the inheritance itself, and the wife takes dower. But though the husband has the immediate freehold in possession and the first estate of inheritance, if there be an intermediate vested estate of freehold, and as long as it continues, no merger can occur, and the wife is denied dower (as in a corresponding case the hus- band is denied curtesy).'^ But a merger of the lesser freehold by the inheritance is not pre- vented by the intervention of a vested remainder for years onl}', and hence the interpolation of such a remainder between the immediate freehold in possession and the first estate of inheritance, both of which are vested in the husband, will not defeat the wife's dower.*' She can only enjoy it, however, subject to the term for years al- ready created.** If the intervening vested estate, though a freehold, is terminat- ed during the coverture, there is no longer any obstacle to the merger of the husband's lesser estate by the inheritance, of which, therefore, the husband would become directly seised during the cov- erture, so that the widow is dowable as if there had never been an intervening freehold.*^ Suppose, for instance, a conveyance "to H' for life, remainder to B. for life, remainder to H. and his heirs." If B. should assign his estate to H. (or in technical language "surrender" it), the obstacle to the merger of H.'s life estate by his inheritance would be at once removed, and if this were done before or during the coverture, H.'s wife is dowable. It would be otherwise, however, if B. does not 81 An example of this is presented in Beardslee v. Beardslee, supra. 82 2 Min. Insts. 151; 1 Tli. Co. Lit. 560, notes (E), (F), 582, note (M); 4 Kent, Com. 39; 1 Seribner, Dower, 233; 1 Washburn, Keal Prop. 20i; Bates' Case, 1 Ld. Raym. 326; Dunham v. Osborn, 1 Paige (X. Y.) 634; Eldredge v. For- restal, 7 Mass. 253 ; Northcut v. Whipp, 12 B. Mon. (Ky.) 65. 83 1 Seribner, Dower, 233; Park, Dower, 77; 4 ICent, Com. 39; Bates' Case, 1 14. Raym. 326 ; Weir v. Humphries, 39 N. C. 273; Boj'd v. Hunter, 44 Ala. 705; Sykes v. Sykes, 49 Miss. 190. 81 1 Seribner, Dower, 233; Boyd v. -Hunter, 44 Ala. 705. 85 1 Seribner, Dower, 234; Park, Dower, 74; Co. Lit. 29a. (216) Ch. 13] DOWER — INTERVENING CONTINGENT FREEHOLD. § 253 surrender his entire estate, as where he surrenders or leases to H. for H.'s life only.^" So, also, taking the example above given, if B. should die during H.'s lifetime, the merger would then at once occur and H.'s widow be dowable. § 253. Same — 4. Effect of an Intervening Contingent Freehold Estate. It is quite well settled at common law that an intermediate contingent remainder of freehold intervening between an immediate freehold in possession and the first estate of inheritance does not prevent a merger of the lesser freehold by the inheritance, if they have come into the same hands at different times and by different acts.*^ Thus, if a conveyance be made to A. for life, with a con- tingent remainder to B. for life, remainder to H. in fee, and H. sub- sequently purchases A.'s life estate (or A. purchases H.'s inherit- ance), the inheritance and the lesser estate coming into the same hands at different times and by different acts, the inheritance merges the lesser freehold at common law and destroys B.'s contingent re- mainder.^^ In such case it is manifest that the wife should take dower at common law.^" But a different rule prevails at common law in the case where the lesser freehold in the husband, the contingent remainder in the third party and the ultimate inheritance of the hvisband are all created by the same conveyance and at the same time, as upon a conveyance to H. for life, with a contingent remainder to B. for life, remainder to H. in fee. To permit a merger of H.'s life estate by his inherit- ance, and thus destroy the intermediate contingent remainder in B., would be to disappoint the manifest intention of the grantor (or tes- tator), and hence, out of respect to that intention, no such merger occurs, even at common law, as will destroy the intermediate re- mainder. ^^ Whether the wife's dower is defeated in such case depends upon the further question whether any merger at all takes place. Upon this point the authorities are divided ; some holding that no merger whatever occurs, that the case is therefore analogous to that of an intervening vested estate of freehold, and that the wife's dower is 86 1 Scribner, Dower, 234. ST Post, §§ 333, 839; 2 Min. Insts. 424, 429; 2 Th. Co. Lit. 557, note (K) ; 3 Preston, Conv. 107 et seq. ss The destruction of B.'s remainder will be e.xplained in connection witli ttie discussion of contingent remainders. See post, § 636. 89 1 Scribner, Dower, 237; 1 Wasliburn, Real Prop. 20.5; Fearne, Cont. Rem. 317, 318, 322; Noel v. Bewley, 3 Sim. 103; Thompson v. Leach, 2 Salk. 427, 2 Vent. 198 ; Hooker v. Hooker, Cas. temp. Hardw. 13 ; Purefoy t. Rogers, 2 Sauud. 380; C5rump v. Norwood, 7 Taunt. 302. 80 2 Min. Insts. 424, 429 ; post, § 691. (217) § 253 DOWER — INTERVENING CONTINGENT FEBBHOLD. [Ch. 13 totally defeated. ^^ But the better view is believed to be that in such case there is a merger sub modo, a qualified merger, which gives the husband the inheritance immediately, but subject to open up and let in the intervening remainder when it is ready to vest."^ In this aspect of the case, the husband being seised directly of the inheritance during the coverture, the wife would take dower, her estate subject to be defeated, however, by the happening of the event upon which the intermediate contingent remainder is to be- come vested. °' In conclusion, it may be added that in any event, if the contingent remainder becomes vested during the coverture and remains a vest- ed freehold remainder at the death of the husband, the wife cannot take dower.^* § 254. Same — 5. Husband's Inheritance must be Heritable by the Issue (if Any) as the Heirs of the Husband. A¥hile it is not necessary, in order that the wife may take dower, that there should be any issue of the marriage, '"^ yet it is essential that the husband's inheritance be of such character that it may descend upon the issue of the marriage, should there be any, as heirs of the husband. In this respect dower in no way differs from curtesy, except that cur- tesy requires that issue be actually born alive during the cover- ture."" If the issue is, by the terms of the instrument creating the hus- band's estate, to take the property by purchase (as devisees, etc.) after the husband's death, and not by descent from him, the wife must be denied dower, though the husband be seised during the 91 See 1 Hilliard, Real Prop. (2d Ed.) 134, § 49; Park, Dower, 70 et seq. and 1 Wasliburn, Real Prop. 206, citing Hooker v. Hooker, Cas. temp. Hardw 13, 2 Barnard (K. B.) 200, 380; Plunkett v. Holmes, T. Raym. 30; Lewis Bowles' Case, 11 Co. 80; Crump v. Norwood, 7 Taunt. 362; Tud. Cas. 43 Fearne, Cont. Rem. 343, 344; 1 Atk. Conv. 256. 9 2 1 Scribner, Dower, 239, citing Purefoy v. Rogers, 2 Saund. 380, 387 Lewis Bowles' Case, 11 Co. 79a, SOa; Co. Litt. 28a; Fearne, Cont. Rem, 36 ; Preston, Rule in Shelley's Case, SO ; 3 Preston. Conv. 113, 489 ; 1 Roper, Husb. and Wife, 9,362 et seq. ; 2 Greenleaf, Cruise, 272, 273 ; Park, Dower, 61, G2. This is certainly true in cases to which the rule in Shelley's Case is ap- plicable, as in case of a conveyance to H. for life, with contingent remainder to B. for life, remainder to the heirs of H. See 2 Jlin. Insts. 405, 406 ; Fearne, Cont. Rem. 37; Lewis Bowles' Case, 11 Co. SOa; post, § 626. 03 1 Scribner, Dower, 239, 246; Park, Dower, 73; House v. Jackson, 50 N. y. 161. 8 4 See ante, § 252. »B 2 Min. Insts. 183; 1 Scribner, Dower, 229; Oo. Lit. 40b. 06 Ante, §§ 220, 226. (218) Gh. 13] DOWER — PROLONGATION OF HUSBANd's BSTATH. § 25(> coverture of the inheritance." In Barker v. Barker,"^ land was devised to the husband and his heirs, but if he should die leaving issue then to his children and their heifs. It was held that the wife should take no dower, because if there -were any children of the marriage they would necessarily take as purchasers under the de- vise, and not by descent from the father. Upon similar principles, if an estate be given to the husband and the heirs of his body by a certain wife, creating an estate tail special in the husband, upon the death of the wife named and his remar- riage, the second wife would have no dower.'" § 255. IV. Death of the Husband. The fourth requisite for dower is the death of the husband. It is the natural, not the civil death of the husband that consummates the title of the wife to dow- er.i But upon common-law principles a presumption of death seems to be raised in case of any person who for seven years has not been heard from. Nevertheless, the law raises no presumption as to the precise time of death. But it may be inferred that he died before the expiration of the seven years, if it appears that within that period he encountered some specific peril or came within the range of some impending or imminent danger which might reasonably be expected to destroy life.^ § 256. V. Dower a Prolongation of Husband's Inheritance An- nexed by Law. The general rule is the same for dower as for cur- tesy.^ If the husband's estate expires by the regular efflux of the period marked out for it by its original limitation, leaving the pre- vious seisin of the husband unimpaired, dower is a prolongation or continuation of the husband's inheritance annexed by force of law; but if (1) the husband's estate is terminated in such a manner as to defeat and annul the husband's seisin from the beginning (as by re-entry for express condition broken), so that in contemplation of law he was never seised during the coverture; or (2) if the hus- band's inheritance terminates (and is not merely transferred by him) in his lifetime, so that at his death there exists no estate to which the dower may be annexed, as a prolongation or continuation 07 2 Min. Insts. 152; 1 TIl Oo. Lit. 577, 578; Barker v. Barker, 2 Sim. 249; Sumner v. Partridge, 2 Atk. 47. 08 2 Sim. 249. See, also, Sumner v. Partridge, 2 Atk. 47, discussed ante, § 222. 09 2 Bl. Com. 131; Park, Dower, 79; Amcotts v. Oatherick, Cro. (Jac.) 615; Northcut V. Wbipp, 12 B. Mon. (Ky.) 65. 1 2 Min. Insts. 155 ; 1 Th. Co. Lit. 569, 580 ; 1 Bl. Com. 132, 133. 2 Davie v. Briggs, 97 U. S. 628, 24 L. Ed. 1086. 3 Ante, § 220. (219) § 257 DOWER — EQUITABLE ESTATES IX GEXERAL. [Cb. 13 thereof (as in case of a fee qualified or a conditional limitation, the termination of which is dependent upon some event happening be- fore the husband's death) ; or (3) if the subject-matter of the hus- band's estate ceases to exist with his death or before it — in none of these cases can the wife take dower.* § 257. Dower in Equitable Estates of Husband. — 1. In General By the original common law neither curtesy nor dower was permit- ted in uses or equitable estates. And while in process of time the common law came to allow curtesy in the equitable estates of in- heritance whereof the wife was seised at some time during the coverture, just as if the estate were legal, dower therein has always been denied at common law.^ But while the English common-law rule in this respect has been followed in some jurisdictions in the United States, the general rule, frequently by express statutory provision, is to admit the widow to * For the full discussion of these principles, accompanied by many illus- trations, only a brief resume of which has been attempted here, see ante. § 229 et seq. See, also, 2 Min. Insts. 129, 153, iri4. The student is advised to turn to the previous discussion and review It thoroughly. BAnte, § 223; 2 Min. Insts. 12.j, 141; 2 Bl. Com. 127, note (9); 1 Th. Co. Lit. 559, note (9), 5TG, note (2.1) ; Darcy v. Blake, 2 Sch. & Lefr. 388 ; Claiborne v. Henderson, 3 I-Ien. & M. (Va.) 322, 368, 380. This (iiversity is thus explained: When curtesy came to be allowed by the courts in equitable estates, there was no such difficulty in the way of adopting the new rule as existed in the case of dower. A married woman seised of an equitable estate, whether her husband was entitled to curtesy or not, could not trans- fer it at common law save by fine or common recovery — collusive suits which, upon common-law principles, could only be brought against the wife by uniting the husband with her as defendant. The wife, therefore, could make no conveyance without the husband's assent and joinder, which would operate to bar his curtesy if or when he had any. Hence the courts, in modi- fying their previous rulings and permitting curtesy thereafter in equitable estates, were not confronted with the difficulty that they might thereby im- ])air the titles of persons who had theretofore purchased such equitable es- tates from married women. But in the case of the wife's dower the opposite was true. Husbands, in conveying their equitable or other estates, need join their wives in the con- veyance merely for the purpose of barring their dower, and if the wives had no -dower (as in equitable estates) they were not joined in the conveyances of their husbands ; the purchasers accepting the conveyances on the faith of the decisions that the -wife would be denied dower therein. To have altered this rule (save by act of Parliament) would have necessarily resulted in the courts having to apply the new rule retrospectively to such past conveyances, and this would have impaired many titles. The courts, therefore, mercifully, perhaps, but very illogically, declined to extend the new rule to dower in- terests. See 2 Min. lusts. 125 ; 2 Bl. Com. 127, note (9) ; Sweetapple v. Bindon, 2 Vem. 536: Watts v. Ball, 1 P. Wms. 108; Casbonie v. Scarfe, 1 .\tk. 603: Darcy v. Blake, 2 Sch. & Lefr. 28S. (220) Ch. 13] DOWER — EQUITABLE ESTATE OF VENDEE. § 259 dower in the equitable estates of the husband, although in most jurisdictions it is only allowed in such equitable estates as the hus- band died seised of, thus permitting the husband to convey them by his sole act during the coverture.^ § 258. Same — 2. Equitable Conversion — Dower in Money Di- rected to be Invested in Land. The principle upon which a court of equity proceeds in regarding money directed by a grantor or testa- tor to be invested in land as if it were land is that equity regards as done what ought to be done.^ Hence, where money is directed by a will or deed to be invested in land for the benefit of a husband, he thereby at once acquires an interest which in equity is treated for most purposes as land, but it is only an equitable interest in land.^ At common law, dower is denied in this, as in all other equitable interests," though curtesy is permitted therein/" § 259. Same — 3. Dower in Vendee's Equitable Estate under a Contract to Convey Land. If the owner of land agrees to convey the same to a vendee, the latter at once takes an equitable interest in the land to be conveyed, and thenceforth the vendor holds the land in equity in trust for the benefit of the vendee. This is but one form of the doctrine of equitable conversion. ^^ The common-law rule denying dower in equitable estates seems to have been generally applied, both in England (prior to 3 and 4 Wm. IV, c. 105, allowing dower in such estates) and in most of these states (in the absence of statute), to this instance of equitable interests as well as to others. ^^ Nevertheless these equitable inter- ests, in this country, fall within the general rule already mention- ed ^^ which is applied in most jurisdictions, and the wife's dower will attach to such lands as a husband retains, at his death, under a mere 6 1 Scribner, Dower, 406, 413, et seq. ; 1 "Washburn, Real Prop. 234, 235 ; 1 Tiffany, Real Prop. § 184. 'Ante, § 18. 8 Fletcher v. Ashburner, 1 Bro. Ch. 497, 1 White & Tud. Lead. Cas. Eq. lll.S; ante, § 18. 8 Crnbtree v. Bramble, 3 Atk. 680 ; Cunningham v. Moody, 1 Ves. Sr. 174 : Fletcher v. Ashburner, 1 Bro. Ch. 497, 1 White & Tud. Lead.' Cas. Eq. 1118 ; Park, Dower, 136. 10 Ante, §§ 213, 257; Sweetapple v. Bindon, 2 Vern. 536; Cunningham v. Moody, 1 Ves. Sr. 174; Fletcher v. Ashburner, 1 Bro. Ch. 497, 1 White & Tud. Lead. Cas. Eq. 1118. "Ante, § 18 et seq.; 2 Min. Insts. 221. 12 Rowton V. Ro\Tton, 1 Hen. & M. (Va.) 92; Claiborne v. Henderson, 3 Hen. c& M. (Va.) 322 ; Reed v. Whitney, 7 Gray (Mass.) 533 ; Hamlin v. Ham- lin, 19 Me. 141 ; Secrest v. McKenna, 6 Rich. Eq. (S. C.) 72 ; Bowen v. Col- lins, 15 Ga. 100. 13 Ante, § 257. (221) § 260 DOWEE — MORTGAGED rROPERTY. [Gh. 13 contract of sale, subject, however, to the vendor's lien for the unpaid balance of the purchase money.^* § 260. Dower in Mortgaged Land — 1. Dower Paramount to Mortgage. ,When the inchoate right of dower of the wife has once attached to land by reason of the seisin of the husband, the right cannot be either divested or impaired by the sole act of the husband in mortgaging the land. Such a mortgage would be subordinate to the dower right; and upon the death of the husband, whether before or after foreclosure, the widow would be entitled to have her dower assigned without regard to the interest either of the mortgagee or of the purchaser of the land at foreclosure sale.^^ § 261. Same — 2. Dower Subordinate to Mortgage. On the oth- er hand, the right of-dower attaches subject to the mortgage in the following cases: (1) When the mortgage is in force at the time of the marriage; (2) when the land is already mortgaged at the time of the conveyance to the husband ; and (3) when the land is conveyed to the husband during coverture, and as part of the same transaction he gives back a mortgage, in which his wife does not join, to secure the whole or a part of the purchase price. ^® And although the wife's inchoate right of dower has already attached to the land, it is now everywhere provided by statute that by joining with her husband in the execution of a mortgage she may bar her right of dower in favor of the mortgagee and those claiming under him, thus subordinating her dower right to the mortgage. But when she joins with her husband in executing the mortgage, the wife's rights are not affected in favor of others than the mortgagee and his privies. The dower right is not extinguished ; and conse- quently, if the mortgage be redeemed by either the husband or his heirs, the right is fully restored." § 262. Same — 3. Dower before Foreclosure. Whatever may be the nature of a mortgagee's interest — whether by the mortgage he acquires the legal estate in the land, or a mere lien ^* (which is not 14 Hamilton v. Hughes, 6 J. J. Marsh. (Ky.) 581; Lawson v. Morton, 6 Dana (Ky.) 471; Heed v. Ford, 16 B. Mon. (Ky.) 114; Prltts v. Ritchey, 29 Pa. 71; Junk v. Canon, 34 Pa. 286; Worsham v. Callison, 49 Mo. 206; Owen V. Robbins, 19 111. 545. i5Ante, § 241. 18 Ante, § 245. 17 Post, § 269. IB There are, in the United States, two "theories" of mortgage. One Is the legal or common-law theory, by which the land is conveyed to the mort- gagee as security. The mortgagee acquires the legal title to the land, with the right of possession. But equity considers him as holding the legal es- tate in trust to restore It to the mortgagor upon payment of the debt. This leaves an equitable estate in the mortgagor, which is the subject of (222") Oh. 13] DOWER MORTGAGED PROPERTY, § 263 either a legal or an equitable estate) — his wife, at his death before the maturity of the debt, anid, indeed, at all times before foreclosure, takes no dower. If a mortgage creates a mere lien, there is no es- tate to which t"he right of dower could attach in favor of the mort- gagee's wife. If the mortgage vests the mortgagee with the legal estate, he acquires but the bare naked legal title, without any present beneficial interest, and this, upon principles already con- sidered, is not the subject of dower.^' On the other hand, the mortgagor's widow, under the same cir- cumstances, assuming the mortgage to be paramount, would be en- titled to dower, subject to be defeated by foreclosure.^" § 263. Same — i. Dower after Foreclosure. After the foreclo- sure of the mortgage and the death of the mortgagee, the right of the mortgagee's widow to dower depends upon whether the mortgaged land, upon such foreclosure, goes absolutely to the mortgagee, or whether he only has the right to have the property sold, the bal- ance after paying the debt and interest to be paid to the mortgagor. The former is the common-law doctrine ; the latter prevails in most of the states of this country. The most important and difficult questions arising in this con- nection relate to the dower rights of the mortgagor's widow in the equity of redemption or surplus upon the foreclosure of the mort- gage. The foreclosure may take place (1) after the husband's death, or (2) in his lifetime. (1) If the mortgage be foreclosed after the mortgagor's death, so that at death he still has at least an equitable estate in the land, dower may be had therein. ^^ (2) If the mortgage be foreclosed in the husband's lifetime, the land sold, and a surplus be left after paying off the debt and inter- dower (see ante, § 257) until suspended by the assertion on the part of the mortgagee to his right of possession, or destroyed by foreclosure. A mortgage, under the lien theory, creates in the mortgagee nothing but a potential right to have the land sold to pay the debt. These theories are explained more fully in the chapter on Mortgages, post, § 532 et seq. 10 Ante, § 244 ; 2 Min. Insts. 147. 20 2 Min. Insts. 142; Heth v. Cocke, 1 Rand. (Va.) 344; Bullard v. Bowers, 10 N. H. 500; James v. Fields, 5 Heisk. (Tenn.) 394; Tarpley v. Gunnaway, 2 Cold. (Tenn.) 246; Ready v. Hamm, 46 Miss. 422; Cockrill V. Armstrong, 31 Ark. 580; Culver v. Harper, 27 Ohio, 464; Danforth v. Smith, 23 Vt 247, 259. And the same would seem to be true if the wife unites in a mortgage executed by the husband during the coverture. See Bank of Ogdensburg v. Arnold, 5 Paige (N. Y.) 38. As to the obligation of the mortgagor's widow, after assignment of her dower in mortgaged land, to pay interest upon the mortgage debt, and the principal thereof when It falls due, see ante, §§ 203, 261. 21 2 Min. Insts. 142 ; Heth v. Cocke, 1 Rand. (Va.) 344. (223) § 263 DOWEll ilOKTGAGED PROPERTY. [Ch. 13 est, such surplus, independently of statute, no longer constitutes an interest in land, but is merely personalty, as if by relation to the time when the lien was created.^^ Hence, if the mortgage is executed before the marriage, and is foreclosed in the husband's lifetime, the mortgagor's wife, in the absence of statute, would get no dower in the surplus, which would be regarded as personalty from a time antedating the coverture. ^^ It would seem to be otherwise, however, if the mortgage be ex- ecuted after the marriage, the wife uniting therein ; for the surplus is personalty only from the creation of the lien, and there would in this case be a time during the coverture, prior to such lien, when the husband's interest would be an interest in land.^* § 264. , Dower in Rents, Franchises, and Other Incorporeal Property. It is not essential that the husband be seised of lands in order that the wife may have dower. She is dowable as well in other property, provided it be real estate whereof the husband is during the coverture seised of an estate of inheritance.^'' Thus the widow may have dower in a rent of inheritance.^" Hence, if one seised of land in fee simple conveys it in fee, reserving a:n annual rent to himself and his heirs forever, marries and dies, his widow is entitled to one-third of this fee simple rent for her life as tenant in dower. ^' And so, if one grants an annual rent issuing out of lands to one in fee simple, upon the death of the grantee, his widow has dower in the rent granted. Rents being thus sometimes the subjects of dower (and curtesy), there may devolve upon the consort the necessity to elect "whether to insist upon his or her rights of curtesy or dower in the rent or in the land out of which it issues. Hence, if the husband after marriage, his wife not uniting, conveys land of which he is seised to another in fee simple, reserving a rent to himself and his heirs forever, in such case the husband has been seised during the cover- ture of both land and rent. But the widow cannot have dower 22 2 Min. Insts. 142; Wilson v. Davisson, 2 Rob. (Va.) 384. 23 2 Min. Insts. 142; Wilson v. Davisson, 2 Rob. (Va.) 384. See Wheatley V. Calhoun, 12 Leigh (Va.) 264, 37 Am. Dec. 654; Frost v. Peacock, 4 Edw. Ch. (N. Y.) 678. 24 See Ratcliffe v. Mason, 02 Ky. 100, 17 S. W. 438 ; Chaney v. Chaney, 38 Ala. 35 ; Cook v. Cook, 20 N. J. Eq. 375 ; Church v. Church, 3 Sandf. Ch. (X. Y.) 434; Maccubbin v. Cromwell, 2 Har. & G. (Md.) 443; Jefferles v. Allen, 33 S. C. 268, 11 S. E. 764 ; Chaffee v. Franklin, 11 R. I. 578. as The wife is dowable only in lands and tenements. 2 Bl. Com. 131; Lift. § 36. 2 2 Min. Insts. 148. 27 2 Min. lusts. 151. (224) Ch. 13] DOWER MIXES AND QL'Ar.RIER. § 265 of both, but will be constrained to elect between them, holding the land, of course (if she elect to take that), discharged of the rent.'' So, also, a widow is dowable of fisheries, franchises, and in- deed of all incorporeal hereditaments,-" except annuities and cor- odies, which last are not lands or tenements, but are personalty.'" § 265. Dower in Mines and Quarries. As to mines and quar- ries which have been opened and worked at the time of the hus- band's death, it is well settled both in England and in this coun- try that the dowress has the right to continue to work such as are- found thus already opened and worked upon the land assigned" to her by way of dower ^^ — and this, whether or not the working" of the mines or quarries has been long discontinued. It is still att open mine.^^ A mine is an "open" mine, the profits of which may be enjoyed by the dowress, if any part of the ore bed or deposit of mineral has been excavated for the purpose of mining the same. In such case the mine consists of the whole bed and the strata lying under it, and in order to reach such mine new pits or shafts may be sunk up- on the original vein and to the underlying strata. ''^ But if the mines or quarries have never been opened or worked before the husband's death, the decided weight of authority is to the effect that the widow cannot, by virtue of her dower right, take out the ore, slate, stone, etc., contained therein, without being guilty of waste.'* 28 2 :Min. Insts. 1-48. 2» In the case of easements and profits a prendre appendant to land, the widow only gets dower in the easement or profit tl prendre where she is dowable of the land to which it is appendant. 1 Scrlbner, Dower, 199 ; Park, Dower, 114; 1 Washburn, Real Prop. 168; Wyman v. Oliver, 75 Me. 421. soAnte, § 62 ; 2 Min. Insts. 148; 1 Washburn, Real Prop. 219. And, indeed, a franchise may be likewise personal rather than real property, in which case, of course, curtesy and dower therein must be denied. Ante, § 63 ; 2 Min. Insts. 148, 149. 312 Min. Insts. 149; 1 Th. Co. Lit. .581, note (L) ; 3 Th. Co. Lit. 237, note (II); 1 Washburn, Real Prop. 217; Clavering v. Clavering, 2 P. Wms. 388; Stoughton Y. Leigh, 1 Taunt. 402 ; Crouch v. Puryear. 1 Rand. (Va.) 258, 10 Am. Dec. 528; Billings v. Taylor, 10 Pick. (Mass.) 4r,0, 20 Am. Dec. 533; Coates V. Cheever, 1 Cow. (X. Y.) 400; Ileiiurix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680. 32 Coates V. Cheever, 1 Cow. (X. Y.) 460; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603. 33 2 Min. Insts. 149; Crouch v. Puryear, 1 Rand. (Va.) 258, 10 Am. Dec. 528; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891 ; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263. 34 2 Min. Insts. 149; Bond v. Godsey, 90 Va. 564, 566, 39 S. E. 216: Stoughton v. Leigh, 1 Taunt. 402; Williamson v. Jones. 43 W. Va. 502, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891 ; JIarsball v. Mellon, 179 Pa. MiNOB & W.Real Pkop.— 15 (225) § 265 DOWER — MINES AND QUARRIES. [Ch. 13 Thus, in Bond v. Godsey," it was held that in estimating the commuted value of an estate by the curtesy in certain lands, chiefly valuable for their timber and the underlying minerals, but upon which no mines had been opened, the value of the minerals should be deducted from the gross value of the land, since the tenant by the curtesy had no interest in, and no right to open and work, unopened mines. § 266. Dower in Wild and Uncultivated Lands. While it is generally true of all tenants for life or for years that they cannot, without committing waste, cut down timber growing upon the land save in the exercise of the right of estovers,^" yet (1) if the land had been habitually utilized in that way, or (2) if the land is chiefly valuable for the timber, or (3) if the land, when denuded of its timber, is more valuable than before, and the market value of the timber is less than the cost of clearing the land, in none of these cases is it waste in a tenant for life by act of the parties to cut it down, because in the first two cases it is the evident intention of the grantor or testator that the tenant should thus utilize and en- joy the land, and in the last the cutting of the timber would not con- stitute a permanent injury to the inheritance.'^ Whether this same principle is applicable to tenants in dower and by the curtesy, who come in by act of the law is more doubtful. Even here, however, if the cutting of the timber results in no perma- nent injury to the inheritance, but rather in a benefit, as in the third case above mentioned, it would seem clear that the tenant in S71, 36 Atl. 201, 35 L. R. A. 810, .57 Am. St. Rep. 601. The right of a dowress to open new mines is to be distinguished from tliat of otlier life tenants, who come in by act of the parties, not of the law. The rights of the latter must in 'large measure depend upon intention, while the rights of the dowress (or the tenant by the curtesy) are independent of intention. One who leases for life to another mineral lands, ^yhich are known to both parties to be such and to be useful for nothing save mining, must be held to have intended to pass mining rights, though no mines be actually opened. Kier v. Peterson, 41 Pa. .361 ; Seager v. McCabe, 92 Mich. 186, 52 N. W. 299, 16 L. R. A. 247, 250. The same principle is not necessarily applicable to the rights of a dowress. For the rights of a life tenant with respect to oil and gas (fugitive in their nature), see 7 Va. Law Reg. 365. 3 09 Va. 564, 39 S. E. 216. But see Seager v. McCabe, 92 Mich. 186, 52 ^. W. 299, 16 L. R. A. 247. 36Aute, §§ 38, 39; Hawpe v. Bumgardner, 103 Va. 96, 48 S. E. 554. See Calvert v. Rice, 91 Ky. 533, 16 S. W. 351, 34 Am. St. Rep. 240, note. 3T2 Min. Insts. 149; Findlay v. Smith, 6 Munf. (Va.) 134, 8' Am. Dec. 733; Macaulay v. Dismal Swamp Land Co., 2 Rob. (Va.) 507, 530; Bond v. Godsey, 99 Va. 564, 567, 39 S. E. 216; Owen v. Hyde, 6 Terg. (Tenn.) 334, 27 Am. Dec. 467. (226) Ch. 13] DOWER LANDS EXCHANGED. § 267 dower or by the curtesy might thus utilize the land without risk of impeachment for waste. ^* In other cases, such as the first two above mentioned, the courts are divided upon the right of the tenant in dower (or by the cur- tesy) to make use of the land by cutting and selling the timber thereon. The life tenant by act of the parties is entitled to do so, because such was the probable mode of enjoyment intended by the parties; but the tenant in dower (and by the curtesy), coming in by act of the law, can rest their claim upon no such ground. Upon general principles such acts upon the part of the dowress would seem to be waste. ^" In any event, however, it would seem there must be left enough timber to satisfy the necessities of the land itself; what will suffice for that purpose being a question of fact, to be determined upon all the circumstances of the case.^° § 267. Dower in Lands Exchanged. There is at common law a conveyance termed an "exchange," *^ the peculiarity of which, when once validly created, is that by a single act and instrument it effects a complete exchange of ownership in several tracts of land between the several parties to it. It operates at one and the same moment to divest the title of one tract out of the former owner and vest it in another, while at the same time divesting the latter of his tract and vesting it in the first party. It operates an exchange of the tracts by one conveyance, and dispenses with the necessity of mu- tual conveyances between the parties. If a party to an "exchange" should fail to unite his wife in the conveyance, and should later die, he will have been seised during the coverture of both tracts, or rather, in contemplation of law, since the one tract is a substitute for the other, he will have been seised of either tract. In such case, therefore, the widow is dowable of either tract ; but she cannot have dower in both. She will be required to •elect between them.*^ 38 2 Min. Insts. 149; Bond v. Godsey, 99 Ya. 564, 567, 30 S. B. 216. See Owen V. Hyde, 6 Xerg. (Tenn.) 334, 27 Am. Dec. 467. 38 1 Washburn, Real Prop. 218 ; Brackett v. Persons Unknown, 53 Me. 238, 87 Am. Dec. 548, note. 40 Macaulay v. Dismal Swamp Land Co., 2 Rob. (Va.) 507, 528; Bond v. Godsey, 99 Va. 564, 568, 39 S. B. 216. 41 For a more detailed account of this conveyance, see post, § 969. 42 2 Min. Insts. 150; 1 Th. Co. Lit. 576; 1 Washburn, Real Prop. 208; Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. Dec. 205. The fact that .she subsequently unites with her husband in conveying the tract last ac- quired does not indicate an election to take dower in that tract, but rather the reverse. Mahoney v. Young, 3 Dana (Ky.) 588, 28 Am. Dec. 114. (227) § 267 DOWER LANDS EXCHANGED. [Ch. 13 But if, instead of the technical conveyance of "exchange," the parties simply execute mutual conveyances, each of his own tract to the other, there is considerable question as to whether this doc- trine can be applied, on the ground that in the latter case the hus- band has during the coverture been seised of both tracts, not merely of either, and hence that the widow, not having united in the hus- band's conveyance of his former tract, is entitled to dower in both.*^ § 268. Dower in Crops. The widow, succeeding to the hus- band's lands as tenant in dower, succeeds also to the annual crops growing upon the land of which she is endowed at the time of her accession, as against the husband's personal representative or his heir or devisee.** And upon the rather unfair presumption that such crops are always growing upon the land when her dower is assigned the widow's personal representative is refused emblements upon her death, as a sort of compensation to the husband's estate for the supposed earlier loss.*^ But this unjust rule was altered in Eng- land by the statute of Merton, 20 Hen. Ill, c. 2.*» § 269. I. General Nature of Wife's Contingent Right of Dower. The right of dower is consummated and raised to the dignity of an estate in land by the death of the husband only.*' Before that event, and while the coverture continues, the wife's right of dower is merely inchoate, a contingent possibility, and not a vested es- tate.** At the same time, it is a valuable right which will be fully, protected by the courts. Indeed it is a general maxim that the law favors dower.*" Some important results flow from the fact that the right of dower during the coverture is a mere possibility or contingent right. 43 1 Washburn, Real Prop. 208, 209; 1 Scribner, Dower, 284; Cass v. Tbompson, 1 N. H. 65, 8 Am. Dec. 30; Mosber v. Mosher, 32 Me. 412. See Wilcox V. Randall, 7 Barb. (N. Y.) 033. But see Maboney v. Xoung, 3 Dana (Ky.) 588, 28 Am. Dec. 114. a Ralston v. Ralston, 3 G. Greene (Iowa) 533. 45Ante, § 44 ; 2 Jlin. Insts. 104. Even at common law the rule was other- wise in case of the tenant by the curtesy. Ante, § 44. 46Ante, § 44; 2 Min. Insts. 104; 1 Washburn, Real Prop. 220. *7 Post, § 298 ; ante, § 255. ^siloy V. Varner, 100 Va. 002 et seq., 42 S. E. COO; Flynn v. Flynn, 171 Mass. 312, 50 N. E. 650, 42 L. R. A. 08, 08 Am. St. Rep. 427 ; Moore v. Mayor, etc., of City of New York, 8 N. Y. 110, 59 Am. Dec. 473 ; Hawley y. Bradford, 9 Paige (N. Y.) 200, 37 Am. Dec. 390 ; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322 ; McCraney v. JlcCraney, 5 Iowa, 232, 68 Am. Dec. 702. io Lewis V. Apperson, 103 Va. 624, 49 S. E. 978, 68 L. R. A. 867, 100 Am. St. Rep. 903 ; Simar v. Canaday, 53 N. Y. 304, 13 Am. Rep. 523; Gore v. Town- send, 105 N. C. 228, 11 S. E. 160, 8 L. R. A. 443 ; Mandel v. McClave, 46 Ohio St. 407. 22 N. E. 290, 5 L. R. A. 519, 15 Am. St. Rep. 627; Duncan v. City of Terre Haute, 85 Ind. 104 ; Grenier v. Klein, 28 Mich. 17. (228) Ch. 13J DOWER — NATURE OP CONTINGENT RIGHT. § 269 Tims, it is settled that the Legislature may constitutionally abol- ish dower, and make the statute applicable even to women al- ready married and possessed of a contingent dower interest, not- withstanding the fourteenth amendment, prohibiting the states to deprive any person of property "without due process of law," for this applies only to vested rights. °° So, also, it is established that the joinder of the wife with the husband in a conveyance or mortgage of his lands only releases and extinguishes the wife's contingent right of dower, and passes no in- terest from the wife ; so that one who receives such a conveyance or mortgage, if the wife survive the husband, cannot be regarded as the assignee of the wife's dower estate and entitled to assert it as she might have done but for the conveyance, but merely as the as- signee of the husband's interest, with the wife's claim to dower ex- tinguished.^^ But such release or extinguishment operates only as between the wife and the purchaser or his privies. Hence, if the husband's deed, in which the wife has joined, is set aside by cred- itors as fraudulent and void, the wife is restored to her dower rights. ^- Again, by reason of the fact that the wife's dower interest during the coverture is a bare contingency or possibility, upon a condemna- tion under eminent domain of the husband's lands for public use, the contingent right of dower is discharged; and, though no sepa- rate compensation is made to her, she cannot after her husband's death recover dower in the lands so taken. ^'^ Nor can she claim soAlexander v. Alexander, 85 Va. 369, 7 S. E. 335, 1 L. R. A. 125 ; Jloore v. Darby, 6 Del. Ch. 193, 18 Atl. 768, 13 L. R. A. 346 ; Magee v. Young, 40 Miss. 164, 90 Am. Dec. 322 ; Ware v. Owens, 42 Ala. 212, 94 Am. Dec. 672 ; Jlelizet's Appeal, 17 Pa. 449, 55 Am. Dec. 573 ; Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355 ; Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200. 512 Mln. Insts. 175; 1 Washburn, Real Prop. 261; Land v. Shipp, 98 Va. 284, 36 S. B. 391, 50 L. R. A. 560 ; Hawley v. Bradford, 9 Paige (N. Y.) 200, 37 Am. Dec. 390 ; Moore v. Mayor, etc., of City of New York, 8 N. Y. 110, .j9 Am. Dec. 473 ; Elwood v. Klock, 13 Barb. (X. Y.) 50 ; Hinchliffe v. Shea, 103 N. Y. 153, 8 N. E. 477 ; Learned v. Cutler, 18 Pick. (Mass.) 9 ; Magwire v. Rig- gin, 44 Mo. 512, 515. 52 Post, § 284 ; 1 Washburn, Real Prop. 261 ; Corr v. Porter, 33 Grat. (Va.) 278, 285 ; Hinchliffe v. Shea, 103 N. Y. 153, 8 N. E. 477 ; Robinson v. Bates, 3 Mete. (Mass.) 40 ; Richardson v. Wyman, 62 Me. 280, 16 Am. Rep. 459 ; Ridg- way V. Masting, 23 Ohio St. 294. 13 Am. Rep. 251. But see Morton v. Noble, 57 111. 176, 11 Am. Rep. 7. Upon similar principles, if the grantee of the hus- band in a deed wherein the wife unites recovers in a suit against the husband upon his covenant of seisin (whereby the husband's deed is avoided), it has been held that he can no longer plead the deed in defeat of the wife's dower. 1 Washburn, Real Prop. 262 ; Stinson v. Sumner, 9 Mass. 143, 6 Am. Dee. 49. 5 3 Moore v. Mayor, etc., of City of Xew York, 8 N. Y. 110, 59 Am. Dec. 473 ; Gwynne v. City of Cincinnati, 3 Ohio, 24, 17 Am. Dec. 576. (2-2'J) § 270 DOWER — EFFECT OF ALIENAGE. [Ch. 13 in such case the right to any separate portion of the money received for the land either immediately or upon condition that she survive the husband."* And upon similar reasoning the contingent dower interest of the wife is destroyed by a sale of the husband's lands for delinquent taxes.°° § 270. II. Effect of Alienage of Husband or Wife in Preventing Creation of Contingent Dower Right. A distinction is to be noted between the prevention and the defeat of dower. Under certain cir- cumstances the contingent right of dower is prevented altogether from accruing; the wife never acquires it. Under other circumstan- ces the contingent dower right may be created, but may be subse- quently barred or defeated or relinquished by the wife's own act or by other means. The former of these two results was effected at common law by the alienage of either husband or wife. At common law, an alien is incapable of holding any real estate whatever (save only terms for years to a very limited extent for purposes of habitation or of trade), and therefore an alien husband might possess no land of which a citizen wife could be endowed, nor might the alien wife of a citizen husband pretend to claim the freehold estate of dower.°° But many of the states have entirely removed the disabilities of alienage, and others have modified the common-law rule by stat- ute.'^' Furthermore, the rights of aliens may be controlled by a treaty of the United States with a foreign nation ; such treaty being "the supreme law of the land." "^ § 271. III. Effect of Antenuptial Conveyance by Husband in Preventing Contingent Dower. Inasmuch as the wife can take 54 Flynn v. Flynn, 171 Mass. 312, 50 N. B. 650, 42 L. R. A. 98, 68 Am. St. Rep. 427. And it is said tliat a voluntary dedication by the husband alone to a public use is equivalent to a condemnation, in cutting off the wife's contin- gent dower right. Venable v. Wabash, West. Ry. Co., 112 Mo. 103, 20 S. W. 493, 18 L. R. A. 68; 1 Washburn, Real Prop. 279. But see Nye v. Taunton Branch R. Co., 113 Mass. 277. 5 Jones T. Devore, 8 Ohio St. 430. But see Blevins v. Smith, 104 Mo. 583, 16 S. W. 213, 13 L. R. A. 441. 56 2 Min. Insts. 165 ; 1 Th. Co. Lit. 572, 573 ; 1 Bl. Com. 372, note (6). By the statute 7 and 8 Vict. c. 66, if an alien woman marry an English subject she becomes naturalized. And a similar doctrine prevails in the United States under the act of Congress regulating naturalization. Rev. St. U. S. §§ 351, 1994 ; 2 Min. Insts. 165 ; 1 Washburn, Real Prop. 252. See 1 Scribner, Dower, 151 et seq. ; Kelly v. Owen, 7 Wall. 498, 19 L. Ed. 283 ; Burton v. Burton. 40 N. Y. 373 ; Alsberry v. Hawkins, 9 Dana (Ky.) 177, 33 Am. Dee. 540. 57 See 1 Washburn, Real Prop. (6th Ed.) p. 263, where the statutes of the various states are collated. 58 Const., U. S. art. 6, § 2. (230) Ch. 13] DOWER — EFFECT OF ANTENUPTIAL CONVEYANCE. § 271 dower only in the lands of which the husband is seised at some time during the coverture, the general rule is that there can be no dower in lands which the husband has conveyed absolutely (or even con- tracted to convey) before marriage. °'' But to this general rule there is an exception which demands brief consideration, namely, where the husband executes a conveyance in anticipation of his marriage, and with intent to defraud the prospec- tive wife of her marital rights ; and the same rule applies to curtesy. Indeed, the law goes so far as to declare that a conveyance made by husband or wife, upon the eve of marriage, without the knowledge of the prospective consort, is deemed in fraud of such consort's marital rights, and is therefore voidable by her or him.'^" This principle, however, is subject to several qualifications. Thus it has been held admissible for one consort to convey property on the eve of marriage without the other's knowledge, in order to se- cure or satisfy a just debt.^^ And it is said that this may be done by the wife, even in order to provide for the children of a former marriage.''- While this may be true where it is the wife who con- veys thus on the eve of marriage, it seems to be pretty well estab- lished that the husband cannot thus convey to a child by a former marriage, or to a mother or other relative, without the knowledge and in fraud of his intended w*ife, and such a conveyance is voidable by her.«3 So, if the conveyance is made before the marriage is contemplat- ed, notwithstanding the marriage may in fact occur soon after, it is not voidable for fraud."* 5 9 Ante, §§ 244, 245. It is otherwise if lie has merely mortgaged tlie land be- fore marriage, for the wife is still dowable as against all persons but the mort- gagee and those claiming under him. Ante, § 260 et seq. 60 2 Min. Insts. 674; Jenkins v. Rhodes, 106 Va. 564, 56 S. E. 332; Leach V. Duvall, 8 Bush (Ky.) 201 ; Manikee v. Beard, 85 Ky. 20, 2 S. W. 545 ; Swaine V. Ferine, 5 Johns. Ch. (N. Y.) 482, 9 Am. Dec. 318 ; Kelly v. JIcGrath, 70 Ala. 75, 45 Am. Rep. 75 ; Kline v. Kline, 57 Pa. 120, 98 Am. Dec. 206 ; Logan v. Simmons, 38 N. C. 487 ; Dunnock v. Dunnock, 3 Md. Ch. 140 ; Smith t. Smith, 6 N. J. Eq. 521 ; Tucker v. Tucker, 29 Mo. 350 ; Dearmond v. Dearmond, 10 Ind. 194 ; Thayer v. Thayer, 14 Vt. 122, 39 Am. Dec. 211. 61 Fletcher v. Ashley, 6 Grat. (Va.) 332. 62 2 Min. Insts. 674. 63 Thayer v. Thayer, 14 Vt. 107, 39 Am. Dec. 211; Petty v. Petty, 4 B. Hon. (Ky.) 215, 39 Am. Dec. 501. But it is otherwise if there is some anterior equi- table claim on the part of the donee, e. g., antecedent promises, indebtedness, etc. Firestone Vv Firestone, 2 Ohio St. 415 ; Champlin v. Champlin, 16 R. I. 314, 15 Atl. 85 ; Dudley v. Dudley, 76 Wis. 507, 45 N. W. 602, 8 L. R. A. 814. 6*2 Min. Insts. 674; Strathmore v. Bowes, 1 Ves. Jr. 22, 1 White & Tud. Lead. Cas. Eq. 395 ; Gregory v. Winston, 23 Grat. (Va.) 102. (231) § 272 DOWER DEVICES TO PREVENT ACCRUAL. [Ch. 13 § 272. IV. Sundry Devices to Prevent Wife's Inchoate Dower from Accruing — In General In former times great ingenuity was exercised by conveyancers to formulate conveyances which, while preventing the accrual of the wife's dower and thus rendering it un- necessary for the husband, when he might wish to transfer his inter- est, to go through the tedious and expensive proceedings of fines and recoveries required by the common law in order that a wife might validly release her dower," ^ yet might vest in the husband grantee the complete and absolute property, dominion and control of the land conveyed."" Before examining these devices in detail, it will be well to note carefully the purpose in view. The design is to give the husband an indefeasible inheritance, enjoyable in praesenti, freely alienable by his sole act during the coverture or devisable at his death, with- out any claim of dower upon the wife's part."' Of course it would be easy by invoking simple principles already discussed to prevent the accrual of the wife's dower ; but to accom- plish this without curtailing in any way the husband's enjoyment of the property and his power of disposition over it is a more diffi- cult problem. For example, nothing would be easier than to prevent the wife's dower by giving the husband only a life estate; "* or by giving to another the immediate freehold during the coverture, and the in- heritance to the husband by way of remainder; "" or by giving the husband the immediate inheritance with the proviso that if he have children the estate shall go to the children as purchasers or devisees, not as heirs of the husband;'" or by interposing an intermediate vested estate of freehold between the immediate freehold of the hus- band in possession and the husband's inheritance;'^ or at common 8 5 Post, § 282. 6 2 Jlin. iDsts. 168. Tlie various devices by which this result was accom- plished, though no longer of as great practical account as formerly, seeing that the wife may release her dower easily and inexpensively in modern times by, merely uniting with the husband in his deed of conveyance or mortgage, are yet of importance, not only because they well illustrate many of the im- portant and abstruse principles governing dower, but also because circum- stances may arise where, by reason of domestic uuhappiness and contention, or for other reasons, a husband may desire to purchase land to which no claim of dower may legally attach, and which he may freely transfer without the necessity of obtaining his wife's assent, or where, in the examination of titles, it may become important to ascertain whether, as a matter of fact, a wife's dower has attached as an incumbrance upon the title. The same principles are applicable in the main to prevent the curtesy of the husband. «T 2 Min. Insts. 168. osAnte, § 240. eoAnte, § 249. TOAnte, § 254. 7 1 Ante, § 2o2. (232) Oh. 13] DOWER — DEVICES TO PREVENT ACCRLAIi. § 274 law by giving the husband an equitable estate only/^ or an estate •owned by him as a joint tenant with another (that is, if the husband die first) ; ^' or in still other ways. All of these are, or have been, adequate for the mere purpose of preventing the wife's dower; but they are all obnoxious to the objection that the husband's dominion and control over the property is more or less curtailed. § 273. Same — 1. First Device to Prevent Dower — Objections Thereto. The first device consists of a conveyance in the form fol- lowing: "To H. (husband) and a trustee and their heirs, but as to the trustee and his heirs, in trust for H. and his heirs." It depends for its effect upon the common-law principle that for dower the hus- band must be sole seised.'* The objections to this device, even at common law, are serious, so far as concerns the husband's complete enjoyment and control of the property. For, if the trustee survives, the whole estate vests in him under the common-law doctrine of survivorship between joint tenants,''^ excluding, it is true, the wife's dower as to the legal estate, while the equitable estate in the husband and his heirs is not at common law subject to dower; '"' but this is done at the expense •of creating an equitable estate in the husband and his heirs, which is more or ''less objectionable. The trustee may be faithless and refuse to convey the legal title to the husband, or his heirs or as- signees, or, by a positive breach of trust, may embarrass the title, necessitating a suit in equity; and at all events there would be the trouble and expense of procuring the title to be divested out of the trustee. Besides all this, the husband may survive the trustee, in which case the complete legal title would vest in him by survivor- ship and might thus become subject to dower.''' In this country generally this device would be of no avail, because a widow is dowable of equitable estates enjoyed by the husband at the time of his death. § 274. Same — 2. Second Device, and the Objections Thereto. The second device to prevent the accrual of dower depends simply upon the common-law principle that the wife is not dowable of an equitable estate ; '^^ the conveyance being made in some such form as the following: "To a trustee and his heirs in trust for H. and liis heirs." '» 72 Ante, § 257 et seq. 73 Ante, § 246. 74 2 Min. Insts. 168; 1 Bright, Husb. and Wife, 516; ante, § 246. 75 Post, § 732. 7 6Ante, § 257 et seq. 77 2 Min. Insts. 168, 169 ; 1 Briglit, Husb. and Wife, 516, 517. TsAnte, § 257 et seq. 79 2 Min. Insts. 169; 1 Bright, Husb. and Wife, 517. (233) § 274 DOWER — DEVICES TO PREVENT ACCRUAL. [Ch. 13- Even at common law the objections stated in the preceding sec- tion with respect to the embarrassments of title connected with equi- table estates would discourage the use of this device to attain the end desired. And in the United States generally it would be utterly- worthless to prevent dower, since dower is freely allowed in equi- table estates.*" § 275. Same — 3. Third Device, and the Objections Thereto. The third device depends upon the principle that the exercise of a power of appointment by one having an interest in land defeats the appointor's seisin from the beginning; the appointee holding, not under the appointor, but under the donor of the power.'^ Thus a conveyance or devise "to such uses as H. shall appoint, and until appointment to the use of H. and his heirs," prevents the accrual of dower on the part of H.'s widow if H. should make the appointment (which amounts to a complete power of disposition) ;. the appointee of H. being regarded as holding under H.'s grantor or testator, and-H.'s seisin being wholly defeated by the appointment. Until an appointment by deed or will H. is seised of the inheritance and has the full enjoyment of the land. And though, if H. dies with- out exercising the power of appointment, his widow is entitled to dower, yet H. has the full enjoyment and power of disjjpsition, and may if he choose by an appointment by sole deed or by will defeat the wife's dower altogether.*^ § 276. Same — 4. Fourth Device, and Objections Thereto. The fourth device depends upon the principle that in order to dower,, the husband must have the immediate estate of freehold in posses- sion and the first estate of inheritance, without an intervening estate of freehold.*^ Taking advantage of this principle, the plan of the device is to give the husband the immediate freehold and also the inheritance, but by the same conveyance to interpolate between these two estates an intermediate freehold estate in another, which,, however, shall be so remotely contingent in fact as not seriously to interfere with the husband's powers of disposition. The device usually appears in the form of a conveyance or devise "to H. for his life, and if by any means that estate should come ta 8 2 Jlin. Insts. 169; ante, § 257 et seq. 81 Post, § 1041; 2 Min. Insts. 169, 821; 1 Briglit, Husb. and Wife, 518; Paine's Case, 8 Co. 34b, note (A) ; Maundrell v. JIaundrell, 10 Ves. 263 ; Ray V. Piing, 5 B. & Aid. 561. 82 2 Min. Insts. 169; 1 Bright, Husb. and Wife, 342, 518; 1 Wasliburn, Real Prop. 268 ; Ray v. Pung, 5 B. & Aid. 561 ; Maundrell v. Maundrell, 10 Ves. 263, 264; Cunningham v. Moody, 1 Ves. Sr. 177; Doe v. Martin, 4 T. R. 65; Doe V. ^\'eller, T T. R. 478. 83Ante, §§ 252, 253. ^L';J4) Ch. 13] DOWER — DEVICES TO PREVENT ACCRUAL. § 276 an end in H.'s lifetime,** remainder to Z. for the residue of H.'s life, remainder after H.'s death to H. and his heirs." ^^ The intervening remainder to Z. is practically negligible, so far as it afifects H.'s en- joyment and control of the property, or his ability to dispose of it to a purchaser. But whether he must unite his wife with him in the conveyance or may convey by his sole act (that is, whether the wife's dower is prevented or not) depends upon three diiificult points, namely: (1) Is Z.'s estate a valid remainder; if so (2) is the re- mainder in Z. a vested or contingent remainder; and (3) if contin- gent, does the interpolation thereof, between the two estates in H. by the same conveyance prevent the accrual of the wife's dower ? (1) It has been questioned whether Z.'s remainder is valid as a remainder, upon the ground that it violates that rule for remainders, presently to be considered, which demands that a remainder must await the regular expiration of the estate preceding it, and must not take effect in derogation thereof.^' But that it is a good remainder , is an indubitable, though not an undoubted, fact.*^ The explana- tion afiforded by Mr. Fearne (none of the other writers seem to have vouchsafed any explanation at all) is merely that forfeiture for the breach of an implied condition is "one of the regular modes of deter- mination incident to an estate for life and to which its nature is sub- ject in its original limitation." *' The limitation in question, there- fore, is in effect a limitation "to H. for life or until his estate shall by some means come to an end in his lifetime, and in the latter case to Z.," etc. Hence Z.'s estate is not in derogation of H.'s life estate, but awaits its regular termination by one of the two limitations appointed to determine it.*' 8* This could only occur by a voluntary surrender by H. of bis estate or by the improbable event of a forfeiture by H. for the breach of one of the con- ditions implied by law in every grant of an estate for life or years. Ante, § 185 et seq. 85 2 Min. Insts. 171; Fearne, Cont. Rem. 217, 218, 347; 1 Bright, Husb. and Wife, 518, 519 ; Duncomb v. Duncomb, 3 Lev. 437. 86 Post, § 592. 87 2 Min. Insts. 172; Duncomb v. Duncomb, 3 Lev. 437; Hooker v. Hooker, Cas. temp. Hardw. 17 ; Smith v. Packhurst, 3 Atk. 135. The fact is indeed the foundation of the practice of limitations to trustees to preserve contingent remainders. Fearne, Const. Rem. 217, 218, 326, 347 ; post, §§ 636, 637. 8 8 Fearne, Cont. Rem. 16; 2 Min. Insts. 172. 88 2 Min. Insts. 172. So presented, the explanation is sustained and confirm- ed by Lord Vaux's Case, 1 Cro. (Eliz.) 269, wherein a grant to A. until B. re- turned from beyond sea or died, and then to C, was held a good vested re- mainder in C. So, in Luxford v. Cheeke, 3 Lev, 125, 126, the devise "to W. for life if she do not marry, but if she do marry, remainder to B.," was held to create a valid vested remainder in B., to take effect at her death if she do not marry, and if she do marry immediately upon the marriage. See, also, (235) § 276 DOWEE — DEVICES TO PREVEXT ACCRUAL. [Ch. 13 (2) Conceding Z.'s remainder to be good as a remainder, the sec- ond question is whether it is a vested or a contingent remainder. Mr. Fearne holds it to be a vested remainder, and he is supported in this view by the weight of authority.^" (3) If Z.'s remainder be contingent, the question whether it pre- vents the dower of H.'s wife depends, as we have seen, upon the mooted question whether the merger of H.'s lesser freehold by his inheritance is prevented by the interpolation by the same convey- ance of a contingent remainder of freehold between the two estates, ihe better opinion seeming to be that the merger takes place sub modo; that is, subject only to the rights of the remainderman when the remainder is ready to vest, thus giving the wife dower, subject to the rights of the remainderman.''^ § 277. V. Contingent Dower Barred or Defeated after It has Accrued — Discussion Outlined. Supposing the dower right not to have been prevented in its very inception, so that it has attached to the husband's property as an inchoate interest or a contingent pos- sibility, we are now to examine some of the more important means by which it may be barred or defeated during the coverture. It may be conceded as a general proposition that, after the inchoate dower has once attached to land whereof the full and right- ful title belongs to the husband, it constitutes an incumbrance thereon which cannot be divested by the sole act of the husband,"^ but only by the consent, or at least by the default, of the wife.°^ The modes of barring or defeating dower may be enumerated as follows: (1) The recovery of the land by title paramount; (2) divorce, as a bar to dower; (3) the wife's elopement from the husband and her living in adultery with another; (4) wife's joinder Lady Ann Fry's Case, 1 Vent. 199; Foster v. Lord Romney, 11 East. 594; Fearne, Cont. Rem. 19; 2 Th. Co. Lit. 59, approving Lord Vaux's Case. In these cases, upon either termination, the remainder was to take efCeet. 90 Fearne, Cont. Rem. 216, 217; 2 Min. Insts. 172; Duncomb v. Dunoomb, 3 Lev. 437; Hooker v. Hoolier, Cas. temp. Hardw. 17; Smith v. Parlvhurst, 3 Atk. 135; 4 Bro. Cas. Pass. -353; Lord Vaux's Case, 1 Cro. (Eliz.) 2(39; Lux- ford V. Cheeke, 3 Lev. 125, 126. But since Z. is not to take the remainder upon either termination of H.'s estate (that is, either upon forfeiture or upon H.'s death), but only in case it is terminated in one of the modes — by forfeiture — and it being uncertain whether it will ever so terminate, and even most im- probable that it ever will, it is difficult to see how Z.'s remainder can be other than contingent. 91 Ante, § 2.53. 2 There seems to be an exception to this rule in the case of a voluntary dedication by the husband alone of his land to a public use, which is regard- ed as equivalent to a condemnation thereof. Ante, § 269. 9S For the use of "trust terms attendant upon the inheritance" to bar dow- er, see 2 Min. Insts. 16G et seq. (23{)) Ch. 13] DOWER BAR BY ELOrEJIENT AND ADULTERY. § 280 with the husband in his transfer of the land; (5) jointure, as a bar to dower; (6) wife's agreement with the husband to rehnquish her dower as a bar thereto; (7) wife barred of her dower by es- toppel. § 278. (I) Dower Barred by Recovery of Land under Title Paramount. If the land be conveyed to the husband upon a con- dition subsequent which is broken, the grantor's re-entry for the breach of the condition is under a paramount title, avoiding the husband's seisin ab initio, and the wife's dower is defeated."* So it is, also, if the husband's land is taken b}' condemnation pro- ceedings, under the paramount title of the state by virtue of its pow- er of eminent domain.'^ And where the land is sold by order of court subjecting it to a lien which has precedence over the wife's dower right, her dower in the land is thereby defeated, though she may have dower in the surplus."" So, also, a judgment actually recovered for the land by a claim- ant under a title superior to that of the husband necessarily defeats the wife's dower, since her title to dower can rise no higher than its source, the husband's title to the land, and the recovery, if bona fide, shows his title to have been inferior to that of the claimant."' § 279. (II) Dower Barred by Divorce. We have already dis- cussed pretty fully the effect of divorce a vinculo and a mensa in defeating the estate by the curtesy."* Precisely the same principles apply to dower. It is sufficient to remind the reader that a divorce a vinculo de- feats both curtesy and dower, as well the rights of the innocent as of the guilty party, and as to property already acquired as well as to that acquired thereafter, while a divorce a mensa, or judicial separation, is at common law no bar to such rights."" § 280. (Ill) Dower Barred by Wife's Elopement and Living in Adultery. Even though there be no divorce or perpetual separa- tion, it is provided by the EngHsh statute Westm. II (13 Edw. I, c. 34) that if a wife, of her own free will, leave her husband and live in adultery, she shall be barred of her dower, unless her hus- band be afterwards reconciled to her and suffer her to live with him. In the construction of this statute, it has been held that going willingly with or to an adulterer, or a voluntary separation from her husband followed by adultery, is a "living in adultery," though she remains not with her paramour continually, or be detained by 94 Ante, § 242. 95 Aute, § 269. 96 Ante, § 2G3. 97 Ante, § 242; 2 Min. Insts. 165; Bac. Abr. Dower (F). »e Ante, § 212. »" Ante, § 212. (237) § 280 DOWER — BAR BY ELOPEMENT AND ADULTERY. [Ch. 13 him against her will ; also, that the husband's license and previous consent to the adultery will not purge her guilt nor repel its conse- quences ; and that, while subsequent cohabitation is in general satis- factory proof of reconciliation, it is not necessarily so, and recon- ciliation, as well as cohabitation, is requisite to rehabilitate the wife.^ The fact that the wife is compelled by her husband's conduct to leave him, if she afterwards refuses to return to him and lives in adultery, does not prevent the bar.^ But if the husband first de- serts the wife, her subsequent adultery does not bar her dower, in the absence of a divorce.^ It is further to be observed that under the statute she must have left her husband. If she commits adul- tery while still living with him, her dower is not thereby barred.* On the other hand, her mere desertion of the husband, no adultery being committed, does not bar her dower. § 281. (IV) Dower Barred by Wife's Joinder with Husband in Transfer. The wife's release of her contingent or inchoate dow- er interest by uniting with the husband in his transfer of the land is in modern times much the more usual means of barring dower; but the present easy and convenient mode of doing this by the simple joinder of the wife in the husband's deed was unknown to the common law, and is the result of legislation which, being in derogation of the common law, is in general to be strictly con- strued and followed.'* § 282. Same — 1. Common-Law Doctrine as to Married Wo- men's Conveyances. The disabilities which at common law beset married women and rendered void their contracts, executed as well as executory, were based upon two grounds : (1) That the wife's identity was regarded for such purposes as merged in that of her husband, constituting them one person in law, and that one the hus- band; " and (2) that the wife was presumed to be under the coer- cion and controlling influence of her husband, and her contracts, therefore, to be made under a practical duress.'' 1 2 Min. Insts. 165; 1 Th. Co. Lit. 609,'610, notes (108), (H, 1); Haworth v. Herbert, 2 Dy. 106 b; Woodward v. Dowse, 10 C. B. (N. S.) 722, 732; Stegall V. Stegall, 2 Brock, 256, 260, Fed. Cas. No. 13,351 ; Bell v. Nealy, 1 Bailey (S. C.) 312, 19 Am. Dec. 686; Reel v. Elder, 62 Pa. 316, 1 Am. Rep. 414; Walters V. Jordan, 35 N. 0. 361, 57 Am. Dec. 558. 2 Bell V. Nealy, 1 Bailey (S. C.1 312, 19 Am. Dec. 686. 3 Reel V. Elder, 62 Pa. 316, 1 Am. Rep. 414; Sbaffer v. Richardson, 27 Ind. 122 ; Cogswell v. Tlbbetts, 3 N. H. 41. 4 1 Washburn, Real Prop. 253; Cogswell v. Tibbetts, 3 N. H. 41. s Post, § 283, note. 6 2 Min. Insts. 173 ; 1 Bl. Com. 442, 444. 7 2 Min. Insts. 173; 1 Bl. Com. 444. (238) Ch. 13] DOWEn — ^wife's joinder in conveyance. § 282 These presumptions of the common law, from a business stand- point, effectually tied the hands of a married woman and (aided by the common-law rule that her personalty becomes vested in the husband immediately upon the marriage) reduced her to a condi- tion of pupilage and dependence upon her husband which was both highly inconvenient and shocking to modern ideas of propriety and justice. Indeed, the inconvenience of this principle, as applied to the transfer of property, early became so great that the courts set themselves to find some way of evading the rule as to the, mar- ried woman's conveyances of land, without surrendering the gen- eral principle. At a remote period, therefore, it came to be the settled law of England that a married woman might convey lands and interests therein by means of the collusive suit known as a "fine," and, later, by means of a "common recovery," wherein the intending purchaser, upon a pretense of a superior title, would bring an action against the husband and wife jointly, laying claim to the land proposed to be sold. In the fine, the parties, by leave of court, pretended to compromise the suit by the surrender of the land to be convej^ed, acknowledging the title thereto to be in the prospect- ive purchaser, all of which was made matter of record in the court, and judgment would be given therefor to the prospective pur- chaser.^ The common recovery was based upon similar principles, save that, instead of a compromise, the defendants (the prospective grantors) would by nonappearance permit a judgment by default to be rendered against them for the land to be conveyed.' These collusive proceedings, of course, had the connivance of the judges, who saw in them the opportunity for a freer transfer of lands. By these means the obstacles above mentioned to a married wo- man's conveyance of her interests in land were removed. The legal identity of husband and wife did not go so far as to prevent one claiming under a paramount title from recovering land from a married woman in a suit brought for that purpose against her and her husband jointly; and the necessary joinder of the husband in the suit secured his assent to the transfer. Thus the first objec- tion, the legal identity of the husband and wife — was obviated.^" The other objection — that the influence of the husband operated as a coercion of the wife — was rendered nugatory by the court- made rule that the wife be examined privily and apart from her husband by the court or some accredited officer thereof, to ascertain 8 2 Min. Insts. 1Y3, 991 ; 2 Bl. Com. 348; Williams, Real Prop. 46, 47, 212. » 2 Min. Insts. 993 et seq.; 2 Bl. Com. 357 et seq. 10 2 Min. Insts. 174. (239) § 282 DOWER — wife's joixdek in conveyance. [Ch. 13 that she was acting vohmtarily and not under the husband's in- fluence and coercion. ^^ The same objections existed at common law if the land were the husband's, and he sought to convey it with the wife's assent, free from her dower. She could not unite directly in the husband's conveyance because of her disabilities, and hence resort must be had to the same methods of conveyance ; that is, by fine or recovery. These cumbersome modes of transferring lands involved both time and expense, and upon the first settlement of this country were almost immediately superseded by statutory provisions per- mitting the joint deed of the husband and wife, executed in the manner designated by the statutes, effectually to pass the title of both husband and wife to any property possessed by either. Hence in practice fines and common recoveries have rarely been used in the United States. ^^ In the case of married women's conveyances under such stat- utes, it is to be noted that the first ground of the married woman's common-law disability (that is, the legal identity of the husband and wife) is obviated- by the inherent force of the statute itself ; whi-le the second ground (that is, the controlling influence of the husband) may be evaded in the same manner as at common law, by the privy examination of the wife apart from the husband, or if the Legislature sees fit by the direct force of the statute. ^^ Another general proposition applicable to such conveyances may be derived from the principle that legislative acts in derogation of the common law are to be strictly construed. That proposition is that no substantial requirement of such statutes can be omitted without invalidating the transfer — at least, so far as the married woman's share in it is concerned.^* § 283. Same— 2. Effect of Wife's Joinder in Husband's Convey- ance. Should the husband by his sole act convey, mortgage or con- tract to convey his land to another, the wife's contingent right of dower remains to her, and should she survive her husband she may enforce it against the grantee, mortgagee or vendee, to whose claims the dower is superior.^^ But she may during the lifetime of her husband release her contingent right of dower to such gran- tee, mortgagee or vendee, and, indeed, to any tenant of the free- hold, except the husband himself.^^ 11 2 Miu. lusts. 174; 2 Bl. Com. 351. 12 1 Washburn, Real Prop. 2."i(j; Fowler v. Shearer, 7 Mass. 14; Chase's Case, 1 Bland (Md.) 20(j, 17 Am. Dec. 277. 18 2 Min. Insts. 174, 175. 14 2 Mln. Insts. 174, See Geil v. Geil, 101 Va. 773, 4-5 S. E. 325. 15 Post, § 297 et seq. 10 Land v. Shipp, 98 Va. 284, 3G S. E. 391, 50 L. R. A, 500; Anon, 2 Cro. (240) Ch. 13] DOWER — wife's joinder in conveyance. § 284 If the wife unites in the husband's conveyance, her joinder does not actually transfer any estate from the wife ; for her inchoate dower is a mere contingent possibihty, not an estate. Her joinder operates merely as a release enuring by way of extinguishing her future contingent rights as against the purchaser and those claim- ing by, through or under him. Hence one who receives such a release cannot in general be regarded as an assignee of the wife's, dower right (in the event she survives her husband) and entitled to assert it as she might have done but for the release.^' So, also,, a release of her dower to the husband's grantee has been held not to prevent her from claiining dower against a mortgagee of the land, whose claim was inferior to that of the wife for dower, though superior to that of the husband's grantee. ^^ § 284. Same — 3. Effect of Wife's Joinder in Husband's Void Conveyance. If the husband's conveyance is void or avoided by decree of court, since the wife's joinder only operates to extinguish her contingent dower as against the grantee and those claiming un- der him, it is apparent that the wife's dower right remains in her unimpaired, because the grantee has never taken a valid and right- ful interest in the husband's lands under the deed.^^ Hence, if a husband executes a conveyance which is fraudulent as between the parties and is set aside, and the purchase money required to be re- (.Tac.) 1.51; Mason v. Mason, 140 Mass. 0.3, 3 N. E. 10 ; Pixley v. Bennett. 11 Mass. 298 ; Moore v. Mayor, etc., of City of New York, 8 N. Y. 110. 59 Am. Dec. -;t;'.; .Johnston v. Smitli, 70 Ala. 108; Reiff v. Horst. .5.1 Md. 47; New York Life Ins. Co. v. Mayer, 108 X. X. 655, 15 N. E. 444; Tillow v. AVade, 31 Ark. t;78. 17 2 Min. Insts. 175; Hoy v. Vamer, 100 Va. 600, 42 S. B. 690; Oorr v. Porter, 33 Grat. (Va.) 286; Learned v. Cutler, 18 Pick. (JIass.) 9; Robinson v. Bates, 3 Mete. (Mass.) 40; Moore t. Mayor, etc., of City of New York, 8 .\. Y. 110, 59 Am. Dec. 473; HincUliffe v. Shea, 103 X. Y. 153, 8 X. E. 477: AVhite V. White, 16 N. J. Law, 202, 31 Am. Dec. 232 ; French v. Lord, 69 Me. 537 ; Dearhorn v. Taylor, 18 X. H. 1.5;j; Nickell v. Tomlinson, 27 W. Va. 697; Man- del V. McClave, 46 Ohio St. 407, 22 X. E. 290. 5 L. R. A. 519, 15 Am. St. Rep. 627. The title is not to two estates or interests — that of the husband and that of the wife — but to one estate, that of the husband, discharged of the wife's contingent claim of dower. Corr v. Porter, supra. 18 Littlefield v. Crocker, 30 Me. 192. The student should remember that the circumstances under which, and the instrument by which, a wife may release her inchoate right of dower are en- tirely governed by statute, which is always strictly construed, and that the statutes in the several states are not uniform. Whether her capacity is con- fined to a release by joining with her husband in an instrument purporting to convey the land, or extends to a release executed by herself alone, and whether she can act through an attorney in fact, are questions which can only be answered by the statute of the state in which the land lies. See Wash- burn, Real Prop. (6th Ed.) § 425. 10 Ante, §283. Minor & W.Real Pbop.— 16 (241) § 284 DOWEE — wife's joinder in conveyance. [Ch. 13 funded, the wife, though joining- in the deed in good faith, is enti- tled to her dower in the land.^" So, if the conveyance be valid as between the parties, but void or actually avoided by decree of court as to third persons, such as cred- itors, the same result follows — at least, as against the creditors or other third persons. Hence, if the husband's conveyance (in which the wife unites) is made with intent to defraud creditors, and has been set aside at their instance, the wife's dower is thereby re- stored to her, and she can claim it as against the creditors ; for her release operated to extinguish it only as against the grantee and those claiming under, not paramount to, him." But if only part of the land conveyed is required to satisfy the defrauded creditors, the grantee being entitled to the rest, it would seem clear that as to that portion the wife's release would be effectual to bar her dower. For similar reasons, it has been held that if the husband's gran- tee recovers in an action on the covenant of seisin (the effect of which is to avoid the deed) the wife's dower is thereby revived.^^ § 285. Same — 4. Effect of Wife's Joinder in Husband's Mort- gage or Deed of Trust. If the wife unites in a mortgage or deed of trust upon the husband's land to secure a debt due by him, in this case, also, her joinder operates to release her dower merely as against the mortgagee or trustee and those claiming by, though or under them.^' Thus, in a case where the wife united in a deed of trust executed by her husband upon land already subject to a mechanic's lien, which was therefore paramount to the deed of trust, though subordinate to the wife's dower, upon a sale of the land un- der the mechanic's lien, it was held that the purchaser thereat could not defeat the widow's claim to dower in the land by pleading her joinder in the deed of trust.^* 20 Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49; Morton v. Noble, 57 111. 176, 11 Am. Rep. 7. = 1 1 AVashburn, Real Prop. 261; Blow v. Maynard, 2 Leigh (Va.) 30; Rob- inson V. Bates, 8 Mete. (Mass.) 40; HincMieCe v. Shea, 103 N. Y. 153, 8 N. E. 477; Malloney v. Horan, 49 N. Y. Ill, 10 Am. Rep. 335; Richardson v. Wy- man, 62 Me. 280, 16 Am. Rep. 459 ; Ridgway v. Masting, 23 Ohio St 294, 13 Am. Rep. 251; Lowry v. Fisher, 2 Bush (Ky.) 70, 92 Am. Dec. 475; Bohannon V. Combs, 97 Mo. 446, 11 S. W. 232, 10 Am. St. Rep. 328. See Hyatt v. Zion, 102 Va. 909, 48 S. E. 1. 2 2 Stinson v. Sumner, 9 Mass. 143, 6 Am. Dec. 49. 23 2 Scribner, Dower, 307; Corr y. Porter, 33 Grat. (Va.) 285; Hoy v. Var- ner, 100 Va. 604, 42 S. E. 690; McCabe v. Bellows, 7 Gray (Mass.) 148, 66 Am. Dec. 467; Jones v. Bragg, 33 Mo. 337, 84 Am. Dec. 49; Gove v. Gather, 23 111. 634, 76 Am. Dec. 711. 2 4 Gove V. Gather, 23 111. 634, 76 Am. Dec. 711. See, also, Kitzmiller y. Van Rensselaer, 10 Ohio St. 63. (242) Ch. 13] DOWER — husband's contract to convey. § 287 And even as to the mortgagee or trustee and their privies the wife's dower is extinguished by her joinder only so far as is neces- sary to secure the debt. If that be paid by the husband himself or his personal representative, her dower right is at once restored entire, and if it is found necessary to sell the land under the mort- gage or deed of trust, or if to save it from sale the mortgage debt is paid by some one interested other than the husband or his per- sonal representative, she has dower in the surplus.^' Nor can the wife, merely because she unites in the husband's mortgage, without pledging herself personally nor her property as security for the husband's debt, be regarded in any sense as a surety for her husband, and hence entitled to exoneration out of his other estate or out of the surplus after the sale of the property and the payment of the debt; that is, she is not entitled to be paid the full- value of the dower right she has lost by joining in the mortgage, but she is to be paid only one-third of the surplus.'^ § 286. Same — 5. Effect of Joinder of Wife Who is an Infant, In- sane or under Disabilities. The statutes authorizing the wife to unite in the husband's conveyance to bar her dower were intended to obviate no other disability on the part of wife save coverture alone. ^^ Hence, if a married woman is an infant, the fact that she has united with the husband in his deed does not operate to bar her dower. Her deed is as voidable as that of any other infant.^^ If the wife be insane, her joinder in the husband's deed would of course be nugatory, but provision is made in several states by stat- ute to permit the husband nevertheless to pass a title unimpeachable by the wife through the decree of a court of equity ; the insane wife, or her committee if there be one, being made a party to the pro- ceeding. § 287. Same — Specific Enforcement in Equity of Husband's Contract to Convey Land. If the husband, without the joinder of his wife, enters into a contract to convey a title to the vendee free from the claims of the vendor's wife for dower, there was formerly much diversity of opinion in England as to the power of the court of chancery to compel the specific performance of the contract.^' But the more recent and the better English opinion is that to com- 2 5 See ante, § 260 et seq. ; Land t. Shipp, 100 Va. 337, 41 S. E. 742. gee Filler v. Tyler, 91 Va. 458, 22 S. B. 235. 26 Hoy V. Varner, 100 Va. 602 et seq., 42 S. E. 690; Land v. Shipp, 100 Va. 337, 41 S. E. 742; Hawley v. Bradford, 9 Paige (X. Y.) 200, 37 Am. Dec. 390; Bank of Commerce v. Owens, 31 Md. 320, 1 Am. Rep. 60. 27 2 Min. Insts. 174, 654. 2 8 Thomas v. Gammel, 6 Leigh (Va.) 9, 12, 15. 2 8 2 Seribner, Dower, 316, 317. See Jlorris v. St^henson, 7 Ves. 474; Rust v. Whittle, Lath. 94 ; Berry t. Wade, Finch, ISO. (243) § 287 DOWER — husband's contract to convey. [Ch. 13 pel the husband to specific performance of such a contract is to place an unfair duress upon the wife to do an act she is under no legal obligation to do, and that the vendee must therefore be relegated to his action at law against the husband for damages.^" Nor does the fact that the wife has united with the husband in his contract to convey, in the absence of statute, afifect this result ; for the wife's contract is at common law totally void, and is as if she had never assented thereto. She cannot be compelled to join in the conveyance, nor can her husband be compelled to induce her to con- sent to unite therein, for that would be to bring upon her a cruel moral constraint that would be unjust to her.^^ And in the United States this is undoubtedly the prevailing doctrine, in the absence of statute. ^^ But the courts are much divided upon the question whether such a contract can be enforced against the husband alone as to his rights in the land, leaving the wife's rights therein intact, where she re- fuses to join in the conveyance. Some courts hold that the hus- band cannot be compelled to convey at all in such case, unless the purchaser is willing to pay the full purchase price, deducting noth- ing on account of the failure of the wife to release her dower, on the ground that to allow the purchaser an abatement of the price on this account would be to make a new contract for the parties and in a sense would constitute a coercion of the wife.^^ Other courts hold that the husband may be compelled to convey such title as he can give, allowing the purchaser an abatement of the purchase price by way of compensation for the incumbrance of the wife's dower; the measure of such abatement being the commuted value of the dower interest with which the wife refused to part.^* 30 2 Min. Insts. 886; 2 Scribner, Dower, 317; 2 Story, Eq. Jur. § 732 et seq. ; Emery v. Wase, 8 Ves. 514 ; Mortlock v. Buller, 10 Ves. 305 ; Innls v. Jackson, 16 Yes. 367 ; Davis v. Jones, 1 Bos. & Pul. N. R. 267. 31 Emery v. Wase, 8 Ves. 514 et seq., and other cases cited supra. 32 2 Min. Insts. 886; 2 Scribner, Dower, 318; Graybill v. Brugh, 89 Va. 805, 17 S. B. 558, 37 Am. St. Rep. 894, 21 L. R. A. 1.33 ; Butler v. Bucldngham, .-. Day (Oonn.) 492, 5 Am. Dec. 174 ; JIartin v. Dwelly, 6 Weud. (N. Y.) 9, 21 Am. Dec. 245 ; Wiswall v. Hall, 3 Paige (N. Y.) 313 ; Tevis v. Richardson, 7 T. B. Mon. (Ky.) 655 ; Edrington v. Harper, 3 J. J. Marsh. (Ky.) 353, 20 Am. Dec. 145 ; Purcell v. Goshorn, 17 Ohio, 105, 49 Am. Dec. 448 ; Davenport v. Sovil^ 6 Ohio St. 459 ; Roseburgh v. Sterling, 27 Pa. 292. So a deed incomplete from a defective acknowledgment or want of delivery will not be enforced as a con- tract to convey. Jenkins v. Harrison, 66 Ala. 345 ; Martin v. Dwelly, supra ; Carr v. Williams, 10 Ohio, 305, 36 Am. Dec. 87 ; Leland's Appeal, 13 Pa. 84. 3 3 Graybill v. Brugh, 89 Va. 895, 898, 17 S. E. 558, 37 Am. St. Rep. 894, 21 L. R. A. 133. And see Burk's Appeal, 75 Pa. 141, 15 Am. Rep. 5S7 ; Clark v. Seirer, 7 Watts (Pa.) 107, 32 Am. Dec. 745. 34 Barnes v. Wood, L. R. 8 Eq. 424, 38 L. J. Ch. 683; Woodbury v. Luddy, 14 Allen (Mass.) 1, 02 Am. Dec. 731; Davis v. Parker, 14 Allen (Mass.) 94; (-M4) Ch. 13] DOWER ORIGIN OP JOINTURE. § 288 § 288. (V) Jointure as a Bar to Dower — 1. Origin. Soon after the first introduction of uses into England (in the latter part of the reign of Edward III, about A. D. 1370), and while they were as yet only equitable estates,^ ° they became so prevalent, by reason of the escape they afforded from many of the feudal turdens attaching to the legal title held by feudal tenure, that it became the custom for expectant husbands, since the wife would not be dowable of uses (equitable estates), to make some special provision for their wives on the eve of marriage by way of marriage settlement.^" This was commonly done by revoking the existing uses of a por- tion of their lands, the power to do which was usually reserved, and limiting them anew "to the use of the husband himself until mar- riage, then jointly to the use of the husband and wife during the coverture, remainder to the use of the survivor for life, remainder to the first and other sons of the marriage in tail, remainder to the daughters of the marriage in tail, remainder to the heirs (general) of the husband." The joint estate to the husband and wife during the coverture thus created gave rise to the designation "jointure," which means nothing more than a joint estate."' But when the statute of uses (27 Hen. VIII, c. 10) was enacted, its chief object was to convert uses into legal estates, in which in the main it succeeded."* In consequence of this enactment the hus- band at once became legally seised of the lands he had held before only by way of use, and all the then wives in England, who had such marriage settlements as above described, would themselves have had a joint estate at law such as they would before have in equity. Furthermore, the equitable estate of inheritance belonging to the husband having been thus converted by the statute into a legal es- tate of inheritance, the then wives would become dowable in those lands, as well as entitled to the jointure created by the marriage set- tlement, and would thus have received a double provision, had not the statute of uses itself, in anticipation of this difficulty, declared that a jointure, provided it had certain attributes, should constitute an absolute bar to the widow's dower."" Young V. Paul, 10 X. J. Eq. 401, 64 Am. Dec. 456 ; Wright y. Young, 6 Wis. 127, 70 Am. Dec. 453 ; Leach v. Forney, 21 Iowa, 271, 89 Am. Dec. 574 ; Sprin- gle V. Shields, 17 Ala. 295; Martin v. Merritt, 57 Ind. 34, 26 Am. Rep. 45; Walker v. Kelly, 91 Jlich. 212, 51 N. W. 934. See Shaw v. Vincent, 64 N. C. 690. 3 5 Uses were converted for the most part into legal estates by the Statute of Uses, 27 Hen. VIII, c. 10. See post, § 401. 3 6 2 Min. Insts. 177. 37 2 Min. Insts. 177, 272; 2 Bl. Com. 137. 3 8 See post, §§ 401, 408, et seq. 88 2 Min. Insts. 177; 2 Bl. Com. 137, 138. (245) § 289 DOWER REQUISITES OF JOINTURE. [Ch. 13 § 289. Same — 2. Requisites for Jointure under the English Stat- ute of Uses. The English statute of uses declared that when a wife's jointure possessed the following five attributes it should be an absolute bar to her dower in a court .of law if made before marriage, while if made after marriage she could elect either : It was neces- sary (1) that the jointure be of lands, tenements, or hereditaments; (3) that the jointure be an estate of freehold in the wife, for the life of the wife, at least; (3) that it take effect immediately upon the husband's death ; (4) that it be made to herself, and not to another in trust for her; and (5) that it be expressly declared to be given in lieu of her whole dower.*" The jointure may be made either before or after marriage ; but by an express provision of the statute of uses, if made during the cover- ture, the widow may elect between jointure and dower.*^ § 290. Same — 3. Equitable Jointure. If the foregoing five req- uisites be not all found in the provision made by the husband for the wife, and yet it is manifest that the husband did not intend her to have the provision and her dower also, such provision will, if made with the express assent of the wife, operate in equity, to bar her dower as effectually as legal jointure; and equity will interfere by injunction to restrain the widow from claiming her dower at law.*^ The property settled may be either real or personal ; *' but the provi- sion must be fair and adequate.** Equitable jointure made before marriage is a complete bar to dower ; but if made during coverture, or by will, the widow is put to her election.*^ § 291. Same — 4. Law Controlling Whether Provision for Wife Bars Dower. The question whether a provision in lieu of dower shall bar the dower is a part of the law of dower, and is to be deter- mined by the law of the place where the land is situated (lex situs), though the testator reside elsewhere, upon the general principle of the Conflict of Laws that all matters connected with the title to real estate are regulated by the lex situs of the land.*° But the question whether a bequest or devise to the wife, not expressed to be in lieu of dower, shall be presumed to be so intend- ed, is a matter of the interpretation of the will, and, in case of a bequest of personalty at least (and probably, also, in the case of a 40 2 Min. Insts. 177; 1 Th. Oo. Lit. 611; 2 Bl. Com. 138; Land v. SMpp, 98 Va. 291, 36 S. E. 391, 50 L. R. A. 560. 41 27 Hen. VIII, c. 10, § 9 ; 2 Bl. Com. 138. 4 2 1 Roper, Husb. and Wife, 486. 4 3 Driiry v. Drury, 2 Eden, 39; Colbert v. Rings, 231 111. 404, 83 N. E. 274. 44 Graham v. Graham, 143 X Y. 573, 38 X. E. 722 ; West v. Walker, 77 Wis. 057, 46 N. W. 819. 46 1 Reeves, Real Prop. § 513. 48 Minor, Confl. Laws, §§ 11, 12. (246) Ch. 13] DOWER — -AGREEMENT TO RELINQUISH. § 294 devise of land), is to be determined in accordance with the law of the testator's domicil (lex domicilii).*' Hence, where a testator, domiciled in New York, bequeathed personal property to his wife, but made no disposition of his land in Virginia, there being no in- herent incompatibility between the wife's claim to her jointure and her claim to dower, the provision of the personalty not being ex- pressed to be in lieu of her dower, it was held that the law of New York (lex domicilii) must decide whether the provision was intend- ed to be in lieu of dower. And since that law declared that there must be on the face of the will a demonstration of the testator's in- tent to cut out dower, the widow was allowed to take both provi- sions.** § 292. Same — 5. Effect of Loss of Jointure. Under the English statute, since the jointure is the consideration for the wife's sur- render of her dower rights, the loss by title paramount of the prop- erty given her by way of jointure operates, to vest in her once more a right to her dower pro tanto, since the husband's provision for her out of property not rightfully his is no provision at all.*" It is to be observed in conclusion that, if the value of the jointure of which she is deprived is greater than that of her entire dower in- terest, she is not entitled to recover anything in excess of her legal dower. The purpose of the statute is not to increase the share in her husband's lands to which the widow is entitled by way of dower. °'' § 293. Same — 6. Advantages of Jointure over Dower. Passing by any advantage accruing to the widow by reason of the superior value of the jointure in a particular case, as compared with the value to be placed upon the widow's dower lands, or vice versa, and sup- posing them to be pecuniarily of equal value, the principal advan- tage the jointure possesses over dower is that the widow may enter upon her jointure immediately upon her husband's death, without any formal process, merely as his grantee or devisee, whilst she must wait for her dower to be assigned to her, and if it be delayed, can compel its assignment only by process of law.^^ § 294. (VI) Effect of Wife's Agreement with Husband to Re- linquish Her Dower. If the ensuing marriage is the only considera- tion to support such relinquishment, no other provision being made 47 Minor, Confl. Laws, § 13 ; Boiling v. Boiling, 88 Va. 524, 14 S. E. 67. 4 8 Boiling T. Boiling, 88 Va. 524, 14 S. E. 67. 49 1 Th. Co. Lit. 570, note (6), 614, note (M, 1); 2 Bl. Com. 138; Statute of Uses, 27 Hen. VIII, c. 10, § 7. See Jones v. Hughes, 27 Grat. (Va.) 560. 60 2 Scribner, Dower, 433; Beard v. Nuthall, 1 Vern. 427; Tew v. Winter- ton, 3 Bro. Ch. 489, 1 Ves. Jr. 451. 51 2 Min. Insts. 180 ; 1 Th. Co. Lit. 615, note (0, 1) ; 2 Bl. Com. 138. (247) § 294 DOWER — AGRREMENT TO RELINQUISH. [Ch. 13 by the expectant husband for her in lieu of her dower thus surren- dered, it would seem that such an unconscionable contract between persons so related ought not to be upheld.^^ ' A case arises where there is a mutual antenuptial agreement on the part of husband and wife each to relinquish all marital rights in the other's property. The weight of authority in this case seems to favor the proposition that such an antenuptial agreement is a bar to the wife's dower.^' A postnuptial agreement, entered into by the wife on one side and the husband on the other, by which she relinquishes or agrees to relinquish her dower to him, his heirs, or his grantees, is void, as are all a married woman's contracts at common law.^* § 295. (VII) Wife's Dower Barred -by Estoppel. There are certain cases, not falling strictly under any of the modes of barring dower heretofore described, wherein the widow may be in equity, if not at law, estopped to claim her dower. (1) Thus, while it is a general rule of the common law that dower, being a claim to a freehold, cannot be barred by a collateral satis- faction, as by the payment to the widow of money before and in- stead of an assignment of her dower, or by the assignmeat to her of lands in which she is not dowable, or of a rent issuing out of such lands, even though she consent to the arrangement,"*^ yet in equity a different rule prevails, and the valid acceptance of a freehold or leasehold interest in other lands, or of a sum of money, or of any other collateral satisfaction in lieu of her dower estops her to claim her dower, provided she be sui juris and apprised of her rights. "^^ (2) So the wife's acceptance of an interest in the land of which she is dowable, which is inconsistent with a claim to dower in those lands, will estop her to claim dower, at least pro tanto, if she be sui juris at the time of such acceptance. Hence, if she accept from the heir a lease for life of the whole of her husband's estates of inherit- 6 2 Ilinkle v. Hinkle, 34 W. Va. 142, 11 S. E. 993; Croade v. Ingraliam, 13 Pick. (Mass.) 33 ; Hastings v. Dickinson, 7 Mass. 153, 5 Am. Dec. 34 ; Gibson V. Gibson, 15 Mass. 106, 8 Am. Dec. 94 ; Vance v. Vance, 21 Me. 3G4 ; Grogan V. Garrison, 27 Oliio St. 59. 5 3Findley v. Findley, 11 Grat. (Va.) 434; Faulkner v. Faulkner, 3 Leigla (Va.) 255, 23 Am. Dec. 264 ; Hinkle v. Hinkle, 34 W. Va. 142, 11 S. E. 993 ; Naill V. Maurer, 25 Md. 532. The Virginia cases are dicta. 5 4 White V. Wager, 2.j N. Y. 328. 65 2 Min. Insts. 160; 2 Scribner, Dower, 253. 56 2 Min. Insts. 160; 2 Scribner, Dower, 253; Land v. Shipp, 98 Va. 284, 36 S. E. 391, 50 L. R. A. 560 ; Jones v. Powell, 6 Johns. Ch. (N. Y.) 194, 200 ; Warfield v. Castleman, 5 T. B. Mon. (Ky.) 517 ; Reed v. Jlorrison. 12 Serg. & R. (Pa.) 18 ; Camden Mut. Ins. Ass'n v. Jones, 23 N. J. Eq. 171 ; Shotwell y. Bedam, 3 Ohio, 5. (248) Oh. 13] DOWER — BAR BY ESTOPPEL. § 295 ance, since she cannot claim dower out of them without partially defeating such lease, she is estopped to claim her dower." But if the interest be conveyed to the wife by the husband before his death, while she is non sui juris, and is inconsistent with her claim of dower, this shows that it is intended to be in lieu of her dower, and in equity upon general principles would put her to her election between the provision and dower. ^' (3) Occasionally, also, the widow may be estopped to claim dow- er by reason of her covenants, as where, after the husband's death, she conveys his lands with covenants of warranty, she is estopped from afterwards claiming dower against her grantees. °° But if she thus conveys without covenants of warranty, the general rule is that the doctrine of estoppel does not apply."" (4) Fraudulent practices on the part of the wife, whereby per- sons are induced to purchase the husband's land, relying upon the wife's assurances that she waives her dower and will not claim it, constitute, it is in general held, another case of estoppel. ^'^ And her standing by at the sale, and permitting the land to be sold free of dower without protest, though apprised of her rights, is calculated to deceive and defraud the purchaser, and to induce him to pay a 67 2 Scribner, Dower, 259 ; 1 Roper, Husb. and Wife, 462. And if she en> cepts a lease for a term of years in the whole of the husband's lands, which is not expressed to be in lieu of her dower therein, her dower right is suspend- ed during the continnance of the leasehold interest. 2 Scribner, Dower, 259 ; Park, Dower, 214. 58 2 Min. Insts. 1005; 1 Jarman, Wills, 458; Gosling v. Warburton, 1 Cro. 352, 358 ; Jeffeiies v. Allen, 34 S. C. 189, 13 S. E. 365. 63 2 Scribner, Dower, 271; Motley v. Motley, 53 Neb. 375, 73 N. W. 738, 68 Am. St. nep. 608; Sip v. Lll^^•back, 17 N. J. Law, 442; Lawrence v. Brown, 5 N. T. 394, 401 ; Owen v. Slatter, 26 Ala. 547, 62 Am. Dec. 745 ; Edmundson v. JXontague, 14 Ala. 370. 6* Ante, § 204; 2 Mln. Insts. 143. 65 For extensive tables of this description, see 2 Scribner, Dower, Appendix; 3 Va. Law Reg. 69 et seq. ; 2 Min. Insts. 183 ; Wilson v. Davisson, 2 Rob. (Ya.) 384. 06 Strayer v. Long, 86 Va. 557, 563, 10 S. E. 574. These computations, how- ever, it will be observed, only affect to find the average results in a vast num- ber of cases, and are liable to be greatly disturbed in any one or a few cases by peculiarities of constitution, locality, occupation, habits of life, and other circumstances, to which therefor reference must be had wherever a practical result is sought. The extent to which the average estimates ought to be chang- ed by these peculiar circumstances is not susceptible of definition, but must (250) Ch. 13] DOWEB EIGHTS BEFORE ASSIGNMENT. § 299 § 297. Dower Consummate — Discussion Outlined The wife's dower, which is contingent or inchoate during the coverture, be- comes consummate upon the death of the husband and the assign- ment to the widow of her dower. It is the assignment that finally creates her a tenant of the land in severalty for her life. Hence the discussion of this, the last great head of dower, revolves around the assignment of the widow's dower. We shall consider the following topics : (1) The conversion of dower inchoate (or contingent) in- to dower consummate by the husband's death and the assignment of the dower; (2) the rights and duties of the widow before assign- ment; (3) the assignment of dower; and (4) the rights and duties of the widow after the assignment of dower. § 298. I. Inchoate Dower Converted into Dower Consummate. The right of dower, which, before the husband's death, is merely in- choate and contingent upon the wife's surviving the husband, be- comes consummate and vested upon the husband's death. Even then, however, it does not become an estate, but is merely a right of action until the land which she is to take as dowress has been actually set apart and assigned her as her dower. Until her dower has been thus set apart for her by metes and bounds, or by some ar- rangement which will secure to her the beneficial enjoyment of the dower right, she is entitled only to an undivided one-third interest in the lands whereof she is dowable, and a right to sue for the same if it be illegally withheld from her,"^ but not to a right of entry be- ' cause the limits and boundaries of her part of the land are not mark- ed out until the assignment.'^ § 289. II. Widow's Rights and Duties before Assignment of Dower — 1. In General. The widow's dower right, prior to assign- ment, being nothing more than a mere right of action, and not an estate, it follows that the same common-law principle which forbids the assignment of choses in action and rights of entry prohibits the widow to convey her dower right before assignment to another, so as to allow the latter to sue therefor in his own name — at least in a depend upon the exercise of a sound discriminating judgment. 2 Jlin. Insts. 183 ; Shelley v. Nash, 3 Madd. 232 ; Earl of Portmore v. Taylor, 4 Sim. 182. 67 1 Washburn, Real Prop. 313 ; 2 Scrlbner, Dower, 25 et seq. ; 1 Tiffany, Real Prop. § 198 ; AiUman v. Harsell, 98 N. Y. 186 ; Sheafe y. O'Neil, 9 Mass. 9; Wade.v. Jliller, 32 N. J. Law, 296; Saltmarsh v. Smith, 32 Ala. 404; Shields t. Batts, 5 J. J. Marsh. (Ky.) 12 ; Best v. Jenks, 123 111. 447, 15 N. E. 173 ; Weaver v. Sturtevant, 12 R. I. 537 ; Rayner v. Lee, 20 Mich. 384 ; Stew- art V. Chadwick, 8 Iowa, 463. ssHildreth v. Thompson, 16 JIass. 191; Evans' Lessee v. Webb, 1 Teates (Pa.) 424, 1 Am. Dee. 308; Hilleary v. Ililleary, 20 Md. 274 ; Heisen v. Heisen, 145 111. 658, 34 N. E. 597, 21 L. R. A. 434 ; Johnson v. Shields, 32 :Me. 424. (251) § 299 DOWER — EIGHTS BEFORE ASSIGNMENT. [Gh. 13 court of law."' But in equity the widow's assignee is in general fully protected and allowed to sue for the right assigned him in that forum in his own name.'" Even at common law there was never any difficulty about the widow's ability to release her dower right to a tenant of the freehold." For the same reason, namely, that the widow before assignment has a mere right of action, the dower right cannot in a court of law ■be subjected to her debts, even where interests in land may gener- ally be so subjected. '- So, also, since at common law the widow before assignment has_ no right of entry or of action in any particular portion of the land, her rights are not affected by a statute of limitations barring entry upon or action for land after a certain number of years. In other words, the possession of the heir, devisee or alienee of the land is not in such case adverse to her, and the statute of limitations does not apply.''^ Since, however, the wife has no right of action until the'husband's death, no possession can begin to run against her be- fore that date, and hence no disseisin of her husband during the coverture, however long continued, can affect her right to dower if she proceeds within the statutory period after her husband's death.''* 6 9 1 Washburn, Real Prop. 313, 314 ; 2 Scribner, Dower, 42 et seq. ; Leavltt V. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; Jackson v. Aspell, 20 Johns. (N. Y.) 411 ; Ritchie v. Putnam, 13 Wend. (N. Y.) .524 ; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; Carnall v. Wilson, 21 Ark. 62, 76 Am. Dec. 351 ; Saltmarsh v. Smith, 32 Ala. 404 ; Tucker v. Vance, 2 A. K. Marsh. (Ky.) 458; Hart v. Burch, 130 111. 420, 22 N. E. 831, 6 L. R. A. 371. Some of the cases allow -the assignee of the widow's claim to sue in a court of law in the name of the widow. McJIahon v. Gray, 150 Mass. 291, 22 N. E. 923, 5 L. R. A. 748, 15 Am. St. Rep. 202 ; Lamar v. Scott, 4 Rich. Law (S. C.) 516 ; Robie v. Flanders, 33 N. H. 524. TO 2 Scribner, Dower, 45 ; Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 24 X. B. 177; Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 200; Potter v. Everitt, 42 N. C. 152. 712 Scribner, Dower, 314; Elmendorf v. Lockwood, 57 N. Y. 322; Saun- ders V. Blythe, 112 Mo. 1, 20 S. W. 319; Carnall v. Wilson. 21 Ark. 62, 76 Am. Dec. 351 ; Sloniger v. Sloniger, 161 111. 270, 43 N. E. 1111. 72 2 Scribner, Dower, 39; Rausch v. Moore, 48 Iowa, 611, 30 Am. Rep. 412; Aikman v. Harsell, 98 N. Y. 186; Shields v. Batts, 5 J. J. Marsh. (Ky.) 12. 73 1 Washburn, Real Prop. 313 ; 4 Kent, Com. 70 ; Parker v. Obear, 7 Mete. (Mass.) 24; Spencer v. Weston, 18 N. C. 213; Guthrie v. Owen, 10 Yerg. (Tenn.) 339; Miller v. Pence, 132 111. 151, 23 X. E. 1030; Sellman V. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524; Barnard v. Edwards, 4 N. H. 107, 17 Am. Dec. 403. But see Kinsolving v. Pierce, 18 B. Mou. (Ky.) 782; Conover v. Wright, 6 X. J. Eq. 613, 47 Am. Dec. 213; Care v. Keller, 77 Pa. 487. 74 Williams v. Williams, 89 Ky. 381, 12 S. W. 760, 6 L. R. A. 637 ; Farmer (252) Ch. 13] DOWER — QUAEA^'TI^;E. § 300 On the other hand, if the widow is in possession of the land, to- gether with an heir, even without any actual assignment of dower, her possession is in privity with the heirs or devisees of the hus- band, and not adverse to them, unless she asserts a superior title so open, notorious and continuous as will fully and clearly show the altered character of her possession and knowledge of such change on the patt of the adverse claimants."* § 300. Same— 2. The Widow's Quarantine. By the original common law, the widow had no right, prior to the assignment of her dower, to enter upon the husband's lands nor to retain possession thereof, nor even to remain in his mansion house an hour after his death. From that moment, if she continued to reside there, it was merely by the sufiferance of the heir.'" But by Magna Charta, 9 Hen. Ill, c. 7 (A. D. 1225), the widow was authorized to remain forty days (quarantine) in the deceased husband's chief mansion house, within which time dower must be assigned her, and meantime she was to have reasonable estover, or support in food and clothing, out of the estate. "But of little ef- fect," says Lord Coke, "was this statute, for that no penalty was provided if it was not done." '^ The authorities are agreed that the right of quarantine belongs to the widow only so long as she remains a widow, so that if she marries again she forfeits it and must fall back upon her dower rights at common law.'* A question has also been made as to whether the quarantine is an estate of freehold or only an estate at will. While some of the courts have regarded it as a freehold on the ground that it may endure during the wife's lifetime,'" the better opinion is that it is analogous to an estate at will, since the heir, devisee or alienee may at any time assign dower and thus put an end to the widow's pos- V. Ray, 42 Ala. 125, 94 Am. Dec. 033 ; Hart v. McCollum, 28 Ga. 478 ; Miller V. Pence, 132 111. 151, 23 N. E. 1030 ; Moore v. Frost, 3 N. H. 126. 7 5 Hulvey v. Hulvey, 92 Va. 185, 186, 23 S. E. 233. v6 2 Min. Insts. 157 ; 1 Th. Co. Lit. 584, note (Q) ; Gilbert, Tenures, 26. 77 2 Min. Insts. 158; 1 Th. Co. Lit. 584; 1 Lorn. Dig. 109; Simmons v. Lyle, 32 Grat. (Va.) 752, 755; Fisk v. Cushman, 6 Gush. (Mass.) 20, 52 Am. Dec. 701; Carnall v. Wilson, 21 Ark. 62, 76 Am. Dec. 351. There was speedily a demand for additional legislation; and accordingly by tlie statute of Merton (20 Hen. Ill, c. 1), the widow 'was allowed to recover damages in her writ of dower unde nihil habet from the time of her husband's death, provided the husband died seised. 2 Min. Insts. 158 ; 1 Th. C\). Lit. 5S4, 585, notes (45), (R) & (S). 7 8 2 Min. Insts. 158 ; 1 Th. Co. Lit. 584 ; Bac. Abr. Dower, (B) 1. 7 0Ackermau v. Shelp, 8 N. J. Law, 125; Craige v. Morris, 25 N. J. Eq 467. See, also, 4 Kent, Com. 62. (253) § 300 DOWBE QUARANTINE. [Oh. 13 session, and it is of too precarious a nature to be classed as a free- hold.^" The statute gives no quarantine except where the husband has a mansion house wherein the widow may remain. Hence if during the coverture the couple have resided in a house not belonging to the husband, the mere fact that he owns lands adjacent does act suf- fice for the operation of the statute.*^ And if at the husband's death a third person is occupying the house under a title which would debar the widow from taking possession thereof immediate- ly, as where it is occupied by a tenant under a lease from the hus- band and wife extending beyond the husband's lifetime, she cannot take advantage of the statute.*^ Nor is the widow bound, it seems, to occupy the premises in per- son. She may, it has been held, rent them to a third person. ^^ And whether her occupancy of the mansion be in person or by a tenant, her possession begins in privity with the husband's heirs or devi- sees, and not adverse to them, though it may become adverse if she notoriously, openly and continuously claims the possession under a superior title. ^* § 301. Same — 3. Relative Priorities as between Dower and Hus- band's Debts — A. Debts Contracted before Marriage. If the debts are contracted by the husband before the coverture, and are not charged specifically upon the land by lien or incumbrance, such as a mortgage, deed of trust, vendor's or mechanic's lien, judgment, etc., the claim of the widow to dower is paramount.''* If the debts have been before the marriage specifically charged upon the land, by way of mortgage, attachment or other lien, they take priority over the wife's dower, which only attaches after the coverture begins.'" If the lien is created on the very day upon which the marriage occurs, though at an earlier hour, it will never- theless be postponed to the dower, since the law knows no fraction of a day and favors dower.'' And the fact that the lien, though 8 Simmons v. Lyle, 32 Grat. (Va.) 752, 757. See, also, We.iver v. Cren- shaw, 6 Ala. 873 ; Inge v. Murphy, 14 Ala. 289 ; Porter v. Robinson, 3 A. K. Marsh. (Ky.) 253, 13 Am. Dec. 153. Hence the widow is not liable for the taxes under a statute providing that the taxes shall be charged against the tenant of the freehold. Simmons v. Lyle, supra. 81 McKaig V. McKaig, 50 N. .J. Eq. 325, 25 Atl. 181. 8 2 Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 462. 8 3 Carnall v. Wilson, 21 Ark. 02, 76 Am. Dec. 351; Conger v. Atwood, 28 Ohio St. 134, 22 Am. Rep. 4G2. 84 Hannon v. Hounihan, 85 Va. 437, 12 S. E. 157; Hulvey v. Hulvey, 92 Va. 185, 23 S. B. 233. 8 6 2 Min. Insts. 182 ; 1 Th. Co. Lit. 568, note (B). 86 2 Min. Insts. 180, 181. 8 7 2 Min. Insts. 181; 1 Washburn, Real Prop. 217; Robinson v. Shacklett, 29 (254) Ch. 13] DOWER PEIOEITIBS AS AGAINST HUSBAND'S DEBTS. § 301 created prior to the coverture, is not recorded until afterwards, would seem to be immaterial, since the recordation is required only as against creditors of the husband and purchasers from him, and the widow in her claim of dower is neither the one nor the other.*^ And where the debts are of the husband's own contracting, and he has received the benefit of the money thus raised, as between the dowress and the other representatives of the husband after his death (that is, his personal representative, heir or devisee), the dowress is entitled to have the incumbrances thus created by the husband satis- fied out of the personalty in the hands of the personal representa- tive, or out of the lands in the hands of the husband's heirs or devi- sees.'° But if the debts are not of the husband's contracting, as where the lands come to him before or during the coverture already in- cumbered, the widow must take her dower cum onere ; for the hus- band's personal and general estate is not liable for the debts of oth- er persons, and in the instance supposed is not bound to exonerate the wife's dower from incumbrances charged upon it by others than the husband himself.'" In such case, however, the widow may be endowed of the land, subject to the incumbrances, which would imply that she must keep down the interest on her third. But when the debt falls due, since the incumbrancer is not bound to accept his debt in parcels, he may demand that the widow shall pay the whole principal or else submit to a foreclosure in respect of the whole property; and if she pays the whole accordingly, she may compel the heir, devisee or other person interested in the rdnaining two-thirds to contribute pro rata."^ Grat. (Va.) 99; Eobbins v Robbing, 8 Blackf. (Ind.) 174; Trustees of Poor of Queen Anne's County v. Pratt, 10 Md. 5 ; Ingram v. Morris, 4 Har. (Del.) 111. 8 8 See Hoy v. Varner, 100 Va. 605, 42 S. E. 690. But if she takes jointure in lieu of dower, she is a purchaser for value even though she take by v^ill, and while It is liable for her husband's debts it is only so liable after the other property of the husband is exhausted. Gaw v. Huffman, 12 Grat. (Va.) 628; Steele v. Steele, 64 Ala. 438, 38 Am. Rep. 15; Taylor's Estate, 175 Pa. 60, 34 Atl. 307. 89 2 Min. Insts. 142, 181; 1 Th. Co. Lit. 568, note (B) ; Heth v. Coeke, 1 Rand. (Va.) 344. »o 2 Blin. Insts. 181 ; 1 Bright, Husb. and Wife, 388. 91 2 Min. Insts. 181 ; 1 Bright, Husb. and Wife, 344, 387 ; Gibson v. Crehore, 3 Pick. (Mass.) 475, 5 Pick. 146 ; McCabe v. Bellows, 7 Gray (Mass.) 148, 66 Am. Dec. 467. See ante, § 203. By parity of reason, if the wife's separate estate becomes charged with the debt of the husband himself, his estate Is to exonerate hers ; but it is not so if the debt were not originally the hus- band's, as where the wife received her separate property charged therewith, and the husband promises to pay it. Here the wife's separate property is (255) § 302 DOWBE — PEIOEITIES AS AGAINST HUSBAND'S DEBTS. [Ch. 13 § 3021 Same — B. Priorities as between Dower and Husband's Debts Contracted after Marriage. If not specifically charged upon the husband's land by mortgage, deed of trust, judgment, or attach- ment, or by a vendor's or mechanic's lien, or otherwise, the debts of the husband are always inferior to the wife's dower. It is im- material whether the debts are contracted before or after the mar- riage. If the husband's debts contracted after marriage are specifically charged upon the land, they are paramount to the widow's dower in two cases only, namely: (1) Where the wife has assented to the incumbrance by uniting with her husband in executing it; and (2) where the land comes to the husband already charged with the lien or incumbrance. (1) If the wife unites with the husband in placing a mortgage or deed of trust upon the husband's property to secure a debt, she thereby pro tanto releases her dower interest in favor of the mort- gagee or deed of trust creditor, and subordinates her dower to his debt. Thenceforth she is entitled to dower only in the equity of redemption — that is, in the surplus remaining after satisfying the mortgage (it being immaterial whether the mortgage be foreclosed in the husband's lifetime or after his death) ^^ — unless the husband in his lifetime, or a purchaser from him under agreement to assume the mortgage, pays the debt, in which case her full dower right is revived, though it is otherwise if the purchaser voluntarily pays it.'' But if the wife does not unite in the mortgage or deed of trust, the fa^t that she consents to the incumbrance in some other way (unless sufficient to estop her),"* or that she does not assent there- to at all, does not defeat her dower as against the incumbrancer.^' (2) If the land comes to the husband already charged with a lien, such as a judgment, attachment, vendor's or mechanic's lien, or primarily liable, ancl not the husband's estate. 2 Min. Insts. 181 ; 1 Bright, Husb. and Wife, 270 et seq. »2Ante, § 263; Land v. Sblpp, 100 A'a. 337, 41 S. E. 742; Hoy v. Varner, 100 Va. 600, 42 S. E. 690. 93Ante, § 203; James v. Ui^ton, 96 Va. 296, 31 S. E. 2.-.."> ; Land v. Shipp, 100 Va. 337, 41 S. E. 742; McCabe v. Swap, 14 Allen (Mass.) 188; Strong V. Converse, 8 Allen 557, 85 Am. Dec. 732; Everson y. ilcMullen, 113 N. Y. 293, 21 N. E. .12. 4 L. R. A. 118, 10 Am. St. Rep. 445 ; Selb v. Montague, 102 111. 446; Pollard v. Xoyes, 60 X. II. 184; Carter v. Goodwin. 3 Ohio St. 75 ; Hatch v. Palmer, 58 Me. 271 ; 1 Tiffany, Real Prop. § 184. 8* Lewis V. Apperson, 103 Va. G24, 49 S. E. 978, 106 Am. St. Rep. 903, 68 L. R. A. 867. sBFicklln v. Rixey, 89 Va. 832, 17 S. E. 325, 37 Am. St. Rep. 891; Walsh V. Wilson, 130 Mass. 124 ; Merchants' Bank y. Thomson, 55 N. T. 7 ; Lewis V. Smith. 9 N. Y. 502, 01 Am. Dec. 706; Davis v. Townsend, 32 S. C. 11'^ 10 S. E. 837. (-5«) Ch. 13] DOWEE ASSIGNMENT VALUATION. § 303 a mortgage or deed of trust, the lien or incumbrance is paramount to the wife's dower, and she is therefore entitled to dower in the sur- plus only, unless the incumbrance is discharged by the husband in his lifetime, or by a purchaser of the land who has bound him- self to assume the payment of the lien debt as a part of the pur- chase money, or by the husband's administrator after his death, in which cases the wife's dower right in the land revives.'"' It will be remembered, also, in this connection, that one who pur- chases land, and as a part of the same transaction, though subse- quently, executes a mortgage or deed of trust upon the land con- veyed to secure the purchase money, is regarded as having received the land. already subject to the lien, and hence, the incumbrance being paramount to the widow's dower already, it is not necessary that she should unite in executing it.'^ § 303. III. The Assignment of Dower. — (I) Valuation of Lands Whereof Widow Is Dowable as against Husband's Heir or Dev- isee. When dower comes to be assigned to the widow, she is en- titled to have set apart one-third in productive value of her hus- band's lands whereof she is dowable, not merely one-third in quan- tity, so that it is necessary to assign to her such portion of the husband's lands as may give her one-third of the annual income or profits of the entire estate, of which she is dowable. ^^ If the husband dies seised of the lands wherein the dower is claim- ed, so that the widow seeks an assignment or recovery of her dow- er from her husband's heir or devisee, the rule is universal that she is entitled to one-third in value, as estimated at the time of such as- signment or recovery."" Hence if the land, after the husband's death, appreciates in val- ue from natural causes, or if the heir improves it, as by planting crops or building houses thereon, such enhanced value accrues to the widow's benefit when her dower is assigned her. It is the heir's own folly or liberality if he makes such improvements before the 06 laege v. Bossieux, 15 Grat. (Va.) 83, 76 Am. Dec. 189; Coates v. Cheever, 1 Cow. (N. Y.) 460 ; Billiard v. Bowers, 10 N. H. 500 ; Hatch v. Palmer, 58 Me. 271. 97Ante, § 245; Hurst v. Diilaney, 87 Va. 444, 12 S. E. 800. 98 1 Washburn, Real Prep. 297, 298; Fuller v. Conrad, 94 Va. 233, 26 S. E. 575 ; Leonard v. Leonard, 4 Mass. 533 ; Smith v. Smith, 5 Dana (Ky.) 179 ; McDaniel v. McDaniel, 25 N. C. 61. 99 2 Min. Insts. 157; 1 Washburn, Real Prop. 298; 1 Tiffany, Real Prop. § 200 ; 2 Scribner, Dower, 595 ; Tod v. Baylor, 4 Leigh (Va.) 498 ; Catlin v. Ware, 9 Mass. 218, 6 Am. Dec. 56; Parker v. Parker, 17 Pick. (Mass.) 230; Powell V. Monson & Brimfield Mfg. Co., 3 Mason, 347. 868, et seq., Fed. Cas. No. 11,356 ; Thompson v. Morrow, 5 Serg. & R. (Pa.) 289, 9 Am. Dec. 3r„s ; Husted's Appeal, 34 Conn. 488; Hale v. James, 6 Johns. Ch. (N. Y.) 258,. MiNOB & W.Real Peop.— 17 (257) § 304 DOWER — ASSIGNMENT VALUATION. [Ch. 13 widow's dower is assigned.'- And so it is, also, if the land depre- ciates in value, from natural causes at least, the widow must bear her proportion of the loss.^ § 304. (II) Valuation of Dower Lands as against Husband's Alienee. If the husband has conveyed the land during the cover- ture, without uniting the wife in the conveyance, or the wife's dow- er is otherwise paramount to the title of the alienee, of whom an assignment or recovery of her dower is sought by the widow, there is a difference between the English and the American view of the valuation of the dower interest. In England the rule seems to be the same against the alienee as against the heir or devisee of the husband, namely, that the land is in all cases to be valued as at the time of the assignment or recovery of the dower, not as of the date of the purchase by the alienee, and hence that the widow gets the benefit of all im- provements placed upon the land by the alienee, even during the husband's life, as well as of the enhancement of value arising from natural causes.^ On the other hand, the general doctrine in the United States seems to be that while the wife takes her dower from the alienee valued, as in England, at the time of assignment or recovery, pro- vided the enhancement of value accrues from extraneous or natural causes,* yet an increase in the value of the land due entirely to the 10 Am. Dec. 328; McGehee v. McGehee, 42 Miss. 747; Price v. Hobbs, 47 Md. 386; McClanahan v. Porter, 10 Mo. 746. 1 1 Washburn, Real Prop. 298 ; 2 Scribner, Dower, 595 ; Catlln v. Ware. 9 Mass. 218, 6 Am. Dec. 56 ; Thompson v. Morrow, 5 Serg. & R. (Pa.) 289, 9 Am. Dec. 358; Parker v. Parlter, 17 Picli. (Mass.) 2.36; Hale v. James, 6 Johns. Ch. (N. T.) 258, 260, 10 Am. Dec. 328; Ralston v. Ralston, 3 G. Greene (Iowa) 533. 2 1 Washburn, Real Prop. 298 ; 2 Scribner, Dower, 598 ; Hale v. James, 6 Johns. Ch. (N. Y.) 2.58, 260, 10 Am. Dec. 328; Powell v. Monson & Brim- field Mfg. Co., 3 Mason, 347, 368, Fed. Gas. Xo. 11,356 ; Campbell v. JIurphy, 55 N. C. .357, 362 ; Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 39 Am. St. Rep. 19, 25, 18 L. R. A. 425, note; Westcott v. Campbell, 11 R. I. 378. There is some question as to whether the widow is to lose by the diminution in the value of the land due to the waste of the heir or devisee himself. Mr. Washburn seems to thinii that such depreciation of value is not to be counted against the widow. 1 Washburn, Real Prop. 298. But see 1 Tiffany, Real Prop. § 200. In such case the widow is at least entitled to maintain an action for damages against the heir or devisee for her loss caused by his de- fault. See 1 Washburn, Real Prop. 298 ; 1 Roper, Plusb. and Wife, 349 ; Sanders v. McMillian, supra. 3 2 Scribner, Dower, 604 et seq. ; Doe v. Gwinnell, 1 Q. B. 682, 41 Eug. Com. Law, 728. But see 2 Min. Insts. 157. ' 1 Washburn, Real Prop. 299, 300 ; Powell v. Monson & Brimfield Mfg. Co., 3 Mason, 375, Fed. Cas. No. 11,35G ; Braxton v. Coleman, 5 Call (Va.) (258) Ch. 13] DOWER BX WHOM ASSIGNED. § 306 alienee's improvements thereon, as by buildings, etc., will not be reckoned in the estimate,'' nor, it seems, will a depreciation of value due to waste committed by the alienee during the husband's life- time, though it is otherwise if the waste is done after the husband's death.« § 305. (Ill) To Whom Dower Is to Be Assigned. Since inde- pendently of statute the dower right before assignment is, like a chose in action or right of entry, not assignable at law, it follows that no person can demand dower in a court of law save the widow herself. If she has assigned her interest, the better opinion is that her assignee may sue therefor in a court of equity in his own name ; but in a court of law, if he can sue at all, he must sue in the name of his assignor (the widow).' § 306. (IV) By Whom Dower Is to Be Assigned. The assign- ment of dower is not necessarily a judicial act or proceeding, and may therefore be accomplished without the aid of a court or judi- cial officer, merely by arrangement between the widow and the tenant of the freehold.' Nor need it, like a judicial act, be perform- ed by a disinterested person. On the contrary, a person repre- senting interests antagonistic to the widow, such as the husband's heir, devisee or alienee, is authorized to assign her dower, and this at common law even though he be an infant." But quite generally in the United States, if the tenant of the free- hold is an infant, the power to assign the widow her dower is vest- ed in his guardian, or, if he be non compos, in his next friend.^" 433, 2 Am. Dec. 592; Sanders v. McMillian, 98 Ala. 144, 11 Soutli. 750, 39 Am. St. Rep. 19, 18 L. R. A. 425, note; Thompson v. Morrow, 5 Serg. & R. (Pa.) 289, 9 Am. Dec. 358; Westcott v. Campbell, 11 R. I. 378; Boyd v. Carlton, 69 Me. 200, 31 Am. Rep. 268 ; McClanahan v. Porter, 10 JIo. 750 ; Dunseth v. Bank of United States, 6 Ohio 77 ; Smith v. Addleman, 5 Blackf. {Ind.) 406; Scammon v. Campbell, 75 111. 223. But see Tod v. Baylor, 4 Leigh (Va.) 498; Walker v. Schuyler, 10 Wend. (N. Y.) 480. 5 Braxton v. Coleman, 5 Call (Va.) 433, 2 Am. Dec. 592 ; Tod v. Baylor, 4 Leigh (Va.) 498, 576; Catlin v. Ware, 9 Mass. 218, Am. Dee. 56; Baruej Y. Frowner, 9 Ala. 901; Wooldridge v. Wilkins, 3 How. (Miss.) 360: Lar- rowe V. Beam, 10 Ohio, 498 ; and cases cited supra. 6 Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 39 Am. St. Rep. 19. 18 L. R. A. 425. ■7 Ante, § 299 ; Pope v. Mead, 99 N. Y. 201, 1 N. E. 671 ; Payne v. Becker, 87 N. Y. 153; Strong v. Clem, 12 Ind. 37, 74 Am. Dec. 20O. sAustin V. Smith, 50 Me. 74, 79 Am. Dec. 597. 9 2 Scribner, Dower, 78 ; Moore v. Waller, 2 Rand. (Va.) 418 ; Jones v. Brewer, 1 Pick. (Mass.) 314 ; Young v. Tarbell, 37 Me. 509 ; McCormick v Taylor, 2 Ind. 336. 10 2 Min. Insts. 159; Miller v. Beverly, 1 Hen. & M. (Va.) 372; Jones \ Brewer, 1 Pick. (Mass.) 314; Robinson v. Miller, 1 B. Mon. (Ky.) 88; Young (259) § 306 DOWEK — BY WHOM ASSIGNED. [Ch. 13 Indeed, the general rule is that whoever may be compelled, by adverse proceedings, to make or submit to an assignment of dow- er, may make such assignment voluntarily. It should therefore be assigned by a tenant of the freehold, whether the rightful ten- ant or not, and none can in general assign it unless he be a tenant of the freehold ; dower being itself an estate of freehold. It is not sufficient that he have a leasehold or chattel interest.^^ But, on the other hand, it is not necessary that he be a rightful tenant of the freehold. Though he be a mere disseisor, the widow is not bound to wait for the assignment of her dower until the husband's heir or other person lawfully entitled recovers the seisin, provided she does not collude with the disseisor. ^^ But an assignment of dower by a disseisor will only be supported to the extent that it would be if the heir himself had made the assignment. ^^ If there be joint tenants of the freehold, the right to assign dow- er is vested in either, since each is seised of the whole per mie et per tout, and the assignment made by either is obligatory upon his co-tenant.^* If an infant heir, or his guardian, assign too much dower to the widow, he may at full age have a "writ of admeasurement of dower"; but if the heir is an adult, and assigns too much, he is without remedy, in the absence of fraud. ^^ The widow's acceptance is essential to the binding effect of a voluntary assignment of her dower. She cannot be made to take less than her right by any ex parte act of the tenant of the free- hold.^* And such acceptance estops her subsequently to deny her husband's title to the lands of which she has been thus endowed.^' § 307. (V) The Instrument of Assignment — Warranty. For a valid voluntary assignment of dower the law does not require a deed nor even a writing, because the assignment is not a convey- V. Tartel], 37 Me. 509; Boyers v. Newbanks, 2 Ind. 388. But see Bonner V. Peterson, 44 111. 2.13. 112 Min. Insts. 158, I.jO ; 2 Scribner, Dower, T.j ; 1 Th. Co. Lit. 591, note (Z), 606. 12 2 Min. Insts. 159; 2 Scribner, Dower, 76, 77. 13 2 Scribner, Dower, 77. 1* 2 Scribner, Dower, 79. It would seem, liowever, to be otherwise as to tenants in common and coparceners, who are seised each of an undivided moiety only. See post, §§ 748, 766, 768. 15 2 Min. Insts. 160; 2 Bl. Com. 136. IS 2 Scribner, Dower, 71 ; Austin v. Austin, 50 Me. 74, 79 Am. Dec. 597. In this case the court says that, in order that a voluntary assignment o( dower "bind the widow, it is necessary not only that the assignment be accepted, but she must also enter upon It." IT Perry v. Calhoun, 8 Humph. (Tenn.) 531. (260) Ch. 13] DOWER — ASSIGNMENT DOWABLE LANDS. § 309 ance. It is sufficient if it be by parol, though, of course, it would be imprudent not to have a written memorial of the transaction. The dower, however, does not pass by the assignment, but by in- tendment of law as a continuation of the husband's estate. ^^ To every assignment of dower — at least, if it be made by the husband's heir — a warranty in law is annexed to the effect that the widow, if evicted by title paramount, shall recover in value, not according to that which she hath lost, but a third of the two re- maining thirds of the lands whereof she is dowable, and doubtless, since the first assig^nment has failed, as of the value at reassign- ment.i' § 308. (VI) Conditional Assignment of Dower. It is a prin- ciple of the common law that the assignment of dower to the widow must be absolute, unconditional, and without any exception or reservation in diminution of its value, any such condition being void and inoperative. The reason is that the widow comes to her dower "in the. per" and not "in the post" (that is, by her husband's death, and not afterwards by any grant from the heir or terre ten- ant) ; that her estate is merely a continuation or prolongation of her husband's; and that the heir or terre-tenant is but a minister of the law to mark and set out her dower share,^" and without authority to make any conditions. But in equity such conditional assignment, if fair and just, and agreed to by the widow, is valid upon the equitable principles of estoppel and election. ^^ § 309. (VII) Dower Assignable Only Out of Dowable Lands. It is another principle of the common law that dower may be as- signed only out of lands (including buildings) of which the widow is dowable, or of a rent issuing out of such lands, if such an assign- ment be practicable. Else the assignment is no bar in a court of law to a recovery of dower anew, because a title to a freehold es- tate cannot be barred by a collateral satisfaction — a doctrine which, as we have seen, is controlled in equity, where such collateral satis- faction, if validly and fairly agreed to by the widow, will repel any subsequent claim on her part to dower. ^^ But, in making the assignment, regard is to be had mutually to the rights of all parties concerned; and hence, if the husband has sold a portion of his land and dies seised of other land, her 18 2 Min. Insts. 159; 2 Scribner, Dower, 73; 1 Th. Co. Lit. 592, note (A, 1). i» 2 Hin. Insts. 159. 20 2 Min. Insts. 160; 2 Scribner, Dower, 82; 1 Bright, Husb. and Wife, 379. See Wentwortti v. Wentworth, 1 Cro. (Eliz.) 452. 212 Min. Insts. 160 ; 2 Scribner, Dower, 82. 2 2 Ante, § 295; 2 Min. Insts. 160; 1 Lorn. Dig. 114. (261) § 3i09 DOWER ASSIGNMENT DOWABLE LANDS. [Ch. 13 dower ought to be assigned out of the latter tract in exoneration of the land sold, provided, at least, that no injustice be thus done the widow.^' For a like reason, if the lands of which the widow is dowable have been parcelled out among several alienees, the rights of these alienees should be protected as far as possible, and therefore dower should be assigned out of each separate tract, though but for these conveyances the widow might elect to receive an assignment of a single tract to be held in severalty in satisfaction of her dower in the whole. ^* Indeed, since the widow is to be endowed, as above shown, in the land remaining with the husband rather than in that aliened by him, wherever that can be done without injustice to the wife, it would seem that the first tract aliened ought to be exempted as far as possible and the dower taken out of the balance, and so with each tract aliened, and thus the lands be subjected to the widow's dower in the inverse order of their alienation, subjecting that of which the husband dies seised first of all. This is the rule adopted where lands subject to other incumbrances are aliened in parcels, and no reason is perceived why the same rule should not be applicable to dower. ^° § 310. (VIII) Modes of Setting Apart Dower. The usual method of allotting dower, where practicable, is to set it apart in the lands of the husband by metes and bounds, although by mutual agreement an assignment by metes and bounds may be dispensed with.2« But cases frequently arise where it is impossible or highly incon- venient or detrimental to the interests of all concerned to attempt an assignment by metes and bounds. In such cases some special mode of endowment may be adopted which will insure substantial justice to all parties, as by granting the widow a proportionate part of the rents and profits, or a right of alternate occupation and en- joyment.^^ For example, if the property be not susceptible of di- 23 2 Min. Insts. 160; 2 Scribner, Dower, 106; Stimson v. Thorn, 2.5 Grat. (Va.) 284. See Wood v. Keyes, 6 Paige (N. Y.) 478; Lawson v. Morton, 6 Dana (Ky.) 471. 24 2 Scribner, Dower, 603; Thomas v. Hesse, 34 Mo. 13, 84 Am. Dec. 66; Fosdick V. Gooding, 1 Greenl. (Me.) 30, 10 Am. Dec. 25 ; Boyd v. Carlton, 69 Me. 200, 31 Am. Rep. 268. 2 6 See post, § 572. 26 2 Min. Insts. 159 ; 1 Th. Co. Lit. 592, note (B, 1) ; Bac. Abr. Dower (D) 1. 27 Parli, Dower, 2.52 ; Stoughton v. Leigh, 1 Taunt 402 ; Stevens v. Stevens, 3 Dana (Ky.) 371 ; Sanders v. McMillian, 98 Ala. 144, 11 South. 750, 39 Am. St. Rep. 19, 18 L. R. A. 42.5: Clift v. Clift, 87 Tenn. 17, 9 S. W. 198, 360; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 277; Rockwell v. Morgan 13 N. J. Eq. 389. (202) Ch. 13] DOWBE COMPULSORY ASSIGNMENT. § 311 vision, as a mill, a franchise, a mine, etc., the widow is to be en- dowed in some special manner, so as to attain the substantial jus- tice of the case as near as may be, as of every third toll dish, or for a third of the time, or of a third of the rents and profits, etc.''' Or in any case a rent may be granted her, in lieu of her dower or of a portion thereof. But the rent granted must issue out of the lands whereof she is dowable; if not, it is not at law a bar to a further recovery of dower, though in equity, if she accepts it as such, and is sui juris and fully apprised of her rights, she will be estopped to claim dower. -^ Again, if the husband is seised as a tenant in common or co- parcener, since the husband himself owns only an undivided share of the land, it is manifest that the widow cannot be endowed by metes and bounds. In the nature of the case she can only be en- dowed, as her husband was seised, of an undivided portion, which would constitute the widow a tenant in common with the husband's co-tenants for her life. Either tenant then may demand a partition of the land, so as to hold in severalty; ^^ and the fact that the dow- ress is only tenant for life, while her co-tenants hold in fee simple, is no bar to a suit for partition.^ ^ While the court, in assigning the widow her dower, as has been seen, may give her an annual rent granted issuing out of the lands of which she is dowable in lieu of her dower therein, or may give her one-third of the annual rents and profits of such land where it is impracticable to assign dower by metes and bounds, it cannot, without the widow's assent, assign her a gross sum of money in one payment as a satisfaction of her dower claim — at least, if it be possible to assign the dower otherwise.^ ^ § 311. (IX) Compulsory Assignment of Dower. — 1. Legal Pro- cess to Compel Assignment. At common law there were only two methods by which the widow might recover her dower: (1) The 28 2 Min. Insts. 159; 1 Th. Co. Lit. 581; Stoughton v. Leigh, 1 Taunt 402; Coates v. Cheever, 1 Cow. (N. Y.) 4G0; Lenfers v. Henke, 73 111. 405, 24 Am. Rep. 263. 29Ante, § 295; 2 Min. Insts. 159, 160; 1 Th. Co. Lit. 581. 30 2 Min. Insts. 159; 2 Scribner, Dower, 80; 1 Th. Co. Lit. 593, note (0, 1). 31 Carneal v. Lynch, 91 Va. 117, 20 S. E. 959. 3 2 White V. White, 16 Grat. (Va.) 264, SO Am. Dec. 706; Herbert v. Wren, 7 Cr. 370 ; Summers v. Donnell, 7 Heisk. (Tenn.) 565 ; Beavers v. Smith, 11 Ala. 20; Atkin v. Merrell, 39 111. 62. See 2 Min. Insts. 164. When, with the consent of the parties, the court assigns a gross sum, it is measured by the present value of the widow's dower interest, which is computed, as in case of other life estates, by the aid of the statutory tables regulating the com- mutation of life interests. Ante, §§ 204, 296. (263) § 311 DOWER COMPULSORY ASSIGNMENT. [Ch. 13 "writ of dower unde nihil habet";=' and (2) the "writ of right of dower." =* Both of these have long since given way in practice to the suit in equity for the recovery of dower. The courts of equity first assumed jurisdiction to assign dower in consequence of the ob- stacles which the widow encountered in the tedious common law actions — obstacles arising from the difficulty in ascertaining some- times the precise lands of which she was dowable, sometimes the person to be sued, and the relative priorities of dowress, incum- brancers and alienees, etc. It has been an acknowledged branch of equity jurisdiction for more than a century, and there is now no need to allege any special ground of equitable intervention or that there is no adequate remedy at law.'^ The common-law action of ejectment did not lie for dower, be- cause the widow before assignment of dower had not the right of entry, which was essential to that action. § 312, Same — 2. How to Set Apart Dower upon Legal Process. At common law the sheriff is to execute the judgment of the court in the writ of dower unde nihil habet, or the writ of right of dower, by assigning not only one-third of each tract, but a third of each species of land, as arable, meadow, pasture, wood, etc.'° But in equity, and in the statutory remedy by action of eject- ment, the assignment is made by commissioners ; and in equity, at least, much more liberal modes of division are tolerated than would be countenanced at common law — the primary object being to give the widow one-third of the income arising from the estate, without injustice to others, rather than to give her one-third of the lands themselves ; that is, one-third in value is to be assigned in such man- ner as shall best subserve the mutual convenience of the parties. This rule is adopted equally to protect the widow against having an unproductive part of the land assigned to her and to guard heirs or others from being left, during the widow's life, without means of support.^'' § 313. Same — 3. Damages Recovered in Suit for Dower. By the common law, since the tenant of the freehold, whether the hus- 33 This was applicable in case no dower had. as yet been assigned the widow out of the tract in which she now seelis dower. By the statute of Mei-ton (20 Hen. Ill, c. 1) damages were also allowed to be recovered in this action, thus converting it from a real into a mixed action. 2 Min. Insts. IGl. 3* This was applicable to recover dower alone, without damages. 2 Min Insts. 161. 35 2 Jlin. Insts. 161, 162; 1 Story, Eq. Jur. § 621 et seq. 36 2 Min. Insts. 163. 3T 2 Min. Insts. 163, 164 ; Fuller v. Conrad, 94 Va. 233, 26 S. E. 575. (264) Ch.. 13] DOWER — RIGHTS AND DUTIES AFTER ASSIGNMENT. § 314 band's heir or his alienee, was entitled to the possession of the land, and to receive the rents and profits thereof until dower is assigned the widow either voluntarily or by judgment of the court, there could be no recovery by the widow of rents and profits during the time her dower was withheld.^' But by the statute of Merton, 20 Hen. Ill, c. 1, the common- law rule was modified, and widows were allowed to recover dam- ages in a writ of dower unde nihil habet,''' the damages to con- sist of the "value of the whole dower to them belonging, from the death of their husbands until the date that the said widows, by judgment of our court, have recovered seisin of their dower." This statute, however, applied only where the husband died seised, and was inapplicable as against the husband's alienee,*" though upon a suit brought in equity against an alienee to recover the dower and for an account of rents and profits, it is customary, even in the absence of statute, to decree damages (so-called) from the time of the demand made upon the alienee to assign the dower and his refusal to do so, but not from the husband's death. *^ § 314. IV. Widow's Rights and Duties after Assignment of Dower. After assignment of her dower, the widow takes a free- hold estate for her life, vested in possession, and in general the same rights and duties devolve upon her as upon any other ten- ant for life. But the estate, once created by the assignment, does not date from that time, but relates back to the death of the hus- band, and in contemplation of law is an estate in the widow from that event.*^ Since the widow's dower is a prolongation or continuation of the husband's seisin, she becomes liable to her due proportion (one- 38 2 Min. Insts. 161, 163 ; 1 Tiffany, Real Prop. § 201. 39 See ante, § 311, and note 1 ; 2 Min. Insts. 161. 40 2 Min. Insts. 163; 1 Tli. Co. Lit. 584, 58.5; Norton v. Norton, 94 Ala. 481, 10 South. 436 ; May v. Jlay, 7 Fla. 207, 68 Am. Dec. 431 ; Shoot v. Gal- breath, 128 III. 215, 21 N. E. 217; Sellman v. Bowen, 8 Gill & J. (Md.) .50, 29 Am. Dec. 524. By damages are to be understood, according to the English authorities, the profits of the third part of the estate since the death of the husband (after deducting proper expenditures), and such additional sum as will compensate the widow for any further loss she may have sustained by the detention of her dower. 2 Scribner, Dower, 704 ; Spiller v. Andrews, 8 Mod. 25 ; Walker v. Neville, 1 Leon. 56 ; Penrice v. Penrice, 2 Barnes, 191. *i 2 Scribner, Dower, 709 et seq. ; Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524*; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 685; Whitaker v. Greer, 129 Mass. 417; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104. But in Kentucky the damages are to be reckoned only from the commencement of the suit. Garton v. Bates, 4 B. Mon. 366; Waters v. Gooch, 6 J. J. Marsh. 586, 22 Am. Dec. 108; Kendall t. Honey, 5 T. B. Mon. 283. 42Ante, § 250; 2 Scribner, Dower, 772 et seq. (265) § 314 DOWEE EIGHTS AND DUTIES AFTBE ASSIGNMENT. [Oh. 13 third) of all duties and services to which the estate was subject in his possession, and for such one-third she is answerable to the person entitled to claim them. Thus, upon a conveyance to the husband in fee simple, reserving a rent payable annually forever to the grantor and his heirs, the widow is entitled upon the hus- band's death to dower in the land, but she must during her life pay one-third of the rent annually accruing.*' So, also, she is bound to pay her share (one-third) of the interest annually accruing upon liens or incumbrances upon the husband's land which are paramount to her dower, just as other life tenants must do.** And she cannot seek for reimbursement or exoneration for the outlay from the husband's heirs or personal representatives if the debt be not of the husband's contracting, but rested upon the land when he acquired it.*'* But if the debt were contracted by the husband himself, and the creditor's lien is paramount to the dower, the dowress is en- titled to have the incumbrance cleared off out of the husband's per- sonal estate in the hands of the husband's personal representative, and if that be insufficient out of the lands in the hands of the hus- band's heirs or devisees.*" In this latter case, therefore, the widow is not called upon to contribute anything to pay the annual interest until the personalty and the other lands of which the husband dies seised are exhausted.*' The principles just mentioned apply equally to the duty of the dowress with respect to contributing to pay off an incumbrance paramount to her dower, which falls due during her lifetime.*' But if we suppose the widow to have paid off the incumbrance, and to be seeking contribution from the other estate of the husband, in a case in which she is entitled to it, the question arises, what is the proportion of the debt that ought to be paid by the widow? If she were entitled to one-third of the land in fee simple, she clear- ly ought to pay one-third of the debt. But she is only a life tenant of a third of the land, and as such bound to pay one-third of the annual interest, but not bound to pay an entire third of the prin- cipal. Her obligation in the matter of the payment of the principal of the debt is measured in the same way as in case of other life ten- ia 2 Jlin. Insts. 181, 182 ; 1 Th. Co. Lit. 508, note (2) ; 1 Bright, Husb. and Wife, 394, 395 ; Ascougli's Case, 9 Co. 135 a, 135 b. **Aiite, § 203; 2 Min. Insts. 142. 46 2 Min. Insts. 142; 1 Tb. Co. Lit. 576, note (25); 1 Bright, Husb. and Wife, 344, 387 ; Banks v. Sutton, 2 P. Wms. 716 ; ante, § 300. 4 6Ante, § 301; 2 Min. Insts. 142. 4T 2 Min. Insts. 142, 143 ; 1 Th. Co. Lit. 568, note (B) ; 1 Bright, Husb. and Wife, 344, S87 ; Heth v. Coclie, 1 Rand. (Va.) 344. 48Ante, § 301 ; 2 Min. Insts. 142, 143. (2G6) Ch. 13] DOWER RIGHTS AND DUTIES AFTER ASSIGNMENT. § 314 ants, by estimating by means of the life tables her probable dura- tion of life and aggregating the present values in cash at compound interest of all the annual interest payments she would have to make upon the debt if it remained unpaid during her lifetime.*' If the land in which dower is assigned is subject to an exist- ing lease for years, created before the coverture, or otherwise paramount to the wife's dower, the widow is dowable only of the reversion, and as a reversioner is entitled to her proportionate share of the rent.**" If, however, the dower is paramount to the lease for years, she is then dowable of the land itself, and may oust the lessee pro tanto. The last proposition is also true if the lease be for life. But if the freehold lease be paramount to the wife's dower, because executed by the husband before marriage, the widow is dowable neither of the land (since the husband has not the seisin during the coverture) nor of the rent (since in that he has not an estate of inheritance). ^-'- And, lastly, if the freehold lease be para- mount to the dower by reason of the joinder of the wife therein, the wife's joinder defeats her dower only to the extent necessary to protect the rights of the lessee for life, so that, while the widow cannot claim dower in the land as against the lessee, she may claim dower in the reversion (of which, her husband has been seised dur- ing the coverture of an estate of inheritance), and therefore be en- titled to one-third of the rent, if any, paid by the life tenant, and to her third of the land itself after the life tenant's death. ^^ In conclusion, it may be observed that if the husband has, be- fore coverture, made a lease for years upon a condition subsequent, and dies before the lease expires, and after the assignment of dower the condition is broken, the better view is that the dowress cannot enter for the condition broken — not at common law, because at common law only the grantor or his heirs could enter for breach of. condition ; ^^ and not under the statute 32 Hen. VIII, c. 34, for that statute only extends the right of entry for condition broken to the assignees of the reversion, that is, persons entitled to the rever- sion by act of purchase or by act of the parties, whereas the dowress is entitled thereto by act of the law."* isAnte, § 203; 2 Min. Insts. 1,43, and note. See Hoy v. Varner, 100 Va. 600, 42 S. E. 690. 60Ante, § 249; 2 Scribner, Dower, T76. See Boyd v. Hunter, 44 Ala. 705 ^ Weir V. Tate, 39 N. C. 264. BiAnte, § 249; 2 Min. Insts. 151; Houston v. Smith, 88 N. C. 312. 62 See ante, § 269. 1 3 Post, §§ 297, 298; 2 Min. Insts. 273; 2 Scribner, Dower, 776. »* See 2 Scribner, Dower, 776, 777. (267) CHAPTER XIV. ESTATES FOR YEARS OR LEASEHOLD ESTATES. % 315. Origin and Nature of Estates for Yearf 316. Definition of a Term for Tears. 317. Fixed Period of Duration Necessary to an Estate for Tears. 318. Necessity for Entry to Consummate ttie Estate for Years. 319. Modes of Creating Estates for Tears. 320. 1. Estates for Years Created by Lease. 321. 2. Estate for Tears Created (in Equity) by Executory Contract to Lease. 322. 3. Estates for Tears Created by Estoppel. 323. Property Wlierein Estates for Years may be Enjoyed. 324. Estates for Tears Distinguished from Mere Lodgings. 325. The Commencement of the Lease. 326. Estates for Years may Commence or Shift to Another In Futiiro. 327. Same— Lease to Commence in Puturo Distinguished from Executory Contract to Lease. 328. Incidents of Estates for Tears — Discussion Outlined. 329. 1." Tenant's Power to Aliene Estate for Years. 330. 2. Tenant's Right of Estovers. 331. 3. Tenant's Right to Emblements. 332. 4. Tenant's Liability for Waste. 333. 5. Doctrine of Merger. 334. 6. Tenant's Rights to Exclusive Possession of Premises. § 315. Origin and Nature of Estates for Years. By the original feudal law no estate less than freehold was recognized as an in- terest in lands. If one held an estate for years only or at will, he held no interest in the land itself, but merely a right by way of con- tract, so that at any moment the contract might be broken by the lessor's eviction of the tenant, who would have no recourse save an action for damages for breach of the contract.^ Hence estates for years were originally entirely precarious, at the arbitrary will of the giver, and were liable, even after they became more perma- nent, to be defeated by collusive recoveries suffered by the lessor ; complete protection being afforded to the tenant against such re- coveries only by the statute 21 Hen. VHI, c. 15.^ But as early as 1 1 Washburn, Real Prop. 462, 403. "The possession of such tenants," says Mr. Washburn, "was esteemed of so little consequence that they were con- sidered as bailiffs or servants of the lord, holding possession of the laud Jure alieno and not jure iDroprio, who were to receive and had contracted to account for the profits at a settled price, rather than as having any property of their own." 1 Washburn, Real Prop. 463. See 2 Min. Insts. 190. 2 2 Min. Insts. 190; Bracton, 27 b ; 2 Bl. Com. 141, 142; 1 Th. Co. Lit. 628. (268) Ch. 14] ESTATES FOR YEARS ORIGIN AND NATURE. § 315 the reign of Edward III the tenant for years was permitted, by means of the writ of ejectione firmas (and later by the action of ejectment) to recover possession of the land from which he had been evicted either by his lessor or by a stranger, thus giving him a direct interest in the land itself, which before he had not.' For the reasons above given, estates for years were originally regarded as of little worth, and, being rather choses in action than' freeholds, were held to pass upon the tenant's death to his personal representative, and not to his heir, nor might they in any way be made descendible to the heir; in short, such estates were, and are, regarded as belonging in almost all respects to the same general class as movable goods, being termed, like them, chattels, but dis- tinguished from them as chattels real (expressive of their immo- bility).* And so, for like reasons, a freehold estate cannot be derived from or carved out of a term for years, however long, any more than it might be created in a personal chattel, so that, if one possessed of a long term for years (say five hundred years) should give it to some one for his life, the estate for life would be only a chattel, not a freehold, interest. So, also, a rent, granted for life, issuing out of a long term for years, while a good charge as long as the term lasts, is only a chattel, because it issues out of a chattel interest." It will be seen, therefore, that, while in modern times a tenant for years, within the limits of his estate, has in most respects as full and perfect enjoyment of the land leased (albeit it is a mere chattel) as has a freeholder, there are still many traces of the orig- inal differences in nature and origin that once existed between them. Among the more important of these the following may be mentioned : 1. Estates for years are chattels real, and, upon the death of the owner intestate, go to his personal representative, and not to his heir, while a freehold estate, independently of statute, never goes to the owner's personal representative. 2. In former times, any interest whatever granted in or carved out of a chattel carried with it the whole property in the chattel, as is still the case upon a conveyance of a chattel to one and the heirs of his body (even in states which retain the estate tail in lands), so that there could be no reversion nor remainder in a chat- tel after a preceding estate therein, however small. And the same principle is applicable to estates for years (being chattels real), as 3 1 Washburn, Real Prop. 464 ; 1 Tiffany, Real Prop. § 36. 4 2 Min. Insts. 190, 197; 2 Bl. Com. 142, 386. 8 2 Min. Insts. 197. (209) § 315 ESTATES FOR YEARS ORIGIN AND NATURE. [Oh. 14 to any other chattel, while with respect to freehold estates in land the rule of the common law was very different. Thus if A., owning land in fee simple, transfers it "to B. for life or for years, remainder to C. and his heirs," there is no difficulty at common law in recognizing the distinct interests of both B. and C. in the land ; but if A. owns a diamond ring, or a term for three hundred years, and disposes of it as above, B. would in former times take the whole property, and C. would take nothing." A different doctrine, however (at first confined to wills, but now applicable to any conveyance), prevails in modern times, and it is now settled that a term for years, as well as any other chattel, may be limited to one for his life, the residue of the term to go upon his death to another.^ 3. No estate less than a freehold is ever created by act of the law. Thus no estate can arise by descent (an act of the law), save an estate of inheritance in lands. So, also, estates by the curtesy and in dower, etc., are life estates. 4. Most of the duties imposed by the law upon owners of land are imposed upon the tenant of the freehold ; the law ignoring him who has possession of the land for a term of years, however long. § 316. Definition of a Term for Years. An estate for years is one that is created by a contract or by estoppel, whereby the ten- ant is given the possession of lands or tenements, and enters upon the same for a period of time fixed or agreed upon by the parties.' This definition calls for a consideration of three points, which will be discussed in the sections immediately following, namely: (1) The necessity for a fixed period of duration; (2) the neces- sity for entry; and (3) the modes of creating the estate. § 317. Fixed Period of Duration Necessary to an Estate for Years. It is the characteristic of a freehold estate that it is of un- certain and indeterminate duration. Just the reverse is true of a term for years. It must be of a certain, fixed duration, terminat- 6 2 ilin. lusts. 192. 7 2 Min. Insts. 192. And by Tvay of executory limitation it may be given over to any number of persons, whether in esse or ascertained or not, provid- ed the future limitation must take effect, if at all, within a life or lives in be- ing, and ten months (the period of gestation) and twenty-one years thereafter ; that is, within the time demanded by the rule against perpetuities. 2 Min. lusts. 192, 193 ; 3 Th. Co. Lit. 296, note (D) ; 1 Washburn Real Prop. 468, 469 ; post, § 695. A covenant contained in a lease for its renewal indeflnitely, at the option of the lessee, does not violate the rule against perpetuities, since there is no postponement of the possession, and will be enforced in equity. Iggulden V. May, 9 Ves. 92.5; Boyle v. Pcabody Heights Co., 46 ild. 623; Blackmore v. Boardman, 28 AIo. 420 ; Page v. Esty, 54 Me. 819. 8 See 1 Washburn, Real Prop. 463 ; 2 Min. Insts. 184 ; i>ost, § 319 et seq. (270) Ch. 14] ESTATES FOB YEARS FIXED PERIOD NECESSARY. § SIT ing on a day named or which may be named, though it is not nec- essary that it should endure for one or more years. It ma}"- expire at the end of one or more years, or months, or weeks, or at any intermediate period, if only it be definitely agreed that it cannot endure longer than a given date." But id certum est quod certum reddi potest. Hence, if one leas- es to another for as many years as J. S. shall name, it is a good lease for years. ^^ On the other hand, a lease for as many years as J. S. shall live does not create an estate for years but a freehold, which at common law required livery of seisin to perfect it. But a lease for one hundred years if J. S. shall so long live, or a lease to A. during B.'s minority, or until B. becomes twenty-one, or to endure for a certain time after the happening of a certain contingency (e. g., the payment of a sum by the lessee to the lessor), creates an estate of defined duration, and therefore an estate for years, though in the first case it may and probably will expire before the lapse •of the hundred years, by the uncertain happening of the death of J. S., or in the second, though B. may not actually live till his twen- ty-first birthday, or in the third, the lessee may never pay the mon- ey to the lessor, or the time of payment is uncertain. ^^ ,Upon the same principle it has been held that a lease for seven or fourteen years is good as an estate for seven years, and for four- teen as soon as the lessee shall so elect. ^^ And if a lease be made "for one year, and so on from year to year," it constitutes an estate for two years certain, as does a lease "for years" fixing no partic- ular number.'^^ Upon the same reasoning, an estate until the lessee may, out of the rents and profits, repay himself a certain sum of money, as in the case of a creditor in possession under the writ of elegit '^^ or otherwise, is a valid estate for years. ^° And so, if a lease be made to one for a year, with a privilege of holding for three years, and the tenant continues to hold after the expiration of the first year, the duration of the term, before uncertain, becomes fixed by his election to hold for three years, unless, indeed, this election is to 9 2 JXin. Insts. 191 ; 2 Bl. Com. 143; 1 Tb. Co. Lit. 628, 632. , 10 2 Jlin. Insts. 191. 112 Jlin. Insts. 191, 416; 1 "VVashbum, Real Prop. 471; 1 Tiffany, Real Prop. § 39; Boraston's Case, 3 Co. 20 a; Bisliop of Bath's Case, 6 Co. 34 b; Murray v. Ctierrington, 09 Mass. 229; Western Transp. Co. v. Lansing, 49 N. Y. 499; Batchelder v. Dean, 16 N. H. 265; Reed v. Lewis, 74 Ind. 433, 39 Am. Rep. 88. 12 2 Min. Insts. 754; Doe v. Dixon, 9 East, 15; Ferguson v. Cornish, 2 Burr 1034. 13 1 Washburn, Real Prop. 471; Denn v. Cartright, 4 East, 29. 14 2 Min. Insts. 303. 15 Batchelder v. Dean, 16 N. H. 265, 268; 2 Min. Insts. 303. (271) § 317 ESTATES FOR YEARS FIXED PERIOD NECESSARY. [Ch. 14 be indicated, by agreement, in some particular manner, as by no- tice, and the method is not pursued by the tenant/' It may be observed, also, that if a lease for a fixed number of years contain a covenant of renewal at the option of the lessee, and the lessee elect to renew, the performance of the covenant by the lessor is not a new lease, but merely a fuller performance of the first. ^' But a general covenant for "renewal" binds the lessor to renew for one term only, of equal duration with the first term, and if the tenant holds over without renewal he becomes a tenant from year to year.^' § 318. Necessity for Entry to Consummate the Estate for Years. A lessee at common law does not become possessed of an estate for years by virtue of the lease alone. The common law also requires that he shall have entered upon the premises. Not until such en- try does the lessee at common law acquire an estate in the land. Before that time he has mere right of entry. ^^ This bare right of entry is called his interest in the term, or interesse termini. When he (or if he be dead, his personal representative) has enter- ed, he is at common law then, and not before, possessed of the es- tate or term (terminus) ; and the relation of landlord and tenant dates from that period.^" In modern times, however — indeed, since the statute of uses (27 Hen. VIII, c. 10) — if the lease is by way of bargain and sale under that statute (as it usually is when the landlord is seised of a free- hold), the constructive possession conferred by the statute itself, as will be more fully explained hereafter, supersedes the necessity for an actual entry on the lessee's part.^^ 16 1 "Washburn, Real Prop. 471 ; Dix v. Atkins, 130 Mass. 171; Kramer v. Cook, 7 Gray (Mass.) o.jO: Clarke v. Men-ill, ."il X. H. 41.j ; Seller v. Robinson, 50 Micli. 264, 15 N. W. 448. See James y. Kibler, 94 Va. IG.j, 26 S. E. 417, 3 Va. Law Reg. 444. 17 House y. Burr, 24 Barb. (N. Y.) 52.">; Bro\yn v. Parsons, 22 Micb. 24. See .Tames v. Kibler, 94 Ya. IG.'i. 26 S. E. 417. 3 Ya. Law Reg. 444. If tbe landlord refuses to renew in accordance with his covenant, he may be com- pelled to do so in equity. Iggulden y. May, 9 Yes. 925; Banks y. Haskie, 45 Md. 207; ante, § 315. i« King V. AA'ilsou, 98 Va. 259, 35 S. E. 727; Peirce y. (irice, 92 Ya. 763, 24 S. E. 392. 19 2 Min. Insts. 191; 1 Th. Co. Lit. 028; 1 ^Vasbburn, Real Prop. 472; .lames v. Kililer, 94 Ya. 165, 26 S. E. 417, 3 Ya. Law Reg. 444. 20 2 Min. Insts. 191; 1 Washburn, Real Prop. 472; James v. Kibler, 94 Ya. 165, 26 S. E. 417, 3 Va. Law Reg. 444. A privity of contract, though not of estate, is created by the mere agreement of the parties before entry, so that the lessee becomes immediately bound upon his covenants. 1 Washburn, Real Prop. 498. But an assignee of the interesse termini would not be. 21 Post, § 412; 1 AYashburn, Real Prop. 473. But see James y. Kibler, 94 Ya. 165, 26 S. E. 417,^3 Va. Law Reg. 444. (272) Ch. 14] ESTATES FOR VEAUS CREATION BY LEASE. § 320 The word "term," therefore, does not merely signify the time specified in the lease, or the number of years it is to run, but also the estate itself. Hence the "term" (meaning estate) may expire during the continuance of the time, as where a tenant for two years surrenders or forfeits his estate at the end of the first year.^^ The tenant for years is not seised of the land, but only possessed of the term. There is, therefore, no ceremony (other than at com- mon law the entry above mentioned) necessary to create it, cor- responding to the livery of seisin deemed essential at common law to the creation of a freehold.^' Contrasting the entry required for the creation of an estate for years with the livery of seisin necessary for a freehold, it may be observed that, while the latter usually called for the presence of both the grantor and grantee upon the premises, the entry of the lessee for years could be made in the absence of the lessor, or even after his death, and might be made by the personal representative of the lessee, or his assignee, after the latter's death. ^■' § 319. Modes of Creating Estates for Years. An estate for 5-ears may arise by means of (1) a conveyance known as a lease ; (2) by a contract to lease in the future (in equity) ; and (3) by estoppel. § 320. Same — 1. Estates for Years Created by Lease. A lease is one of the original common-law conveyances, and alwa3^s suj>- poses a reversion in the grantor."^ It is an executed agreement by which the grantor (called the lessor) conveys to the grantee (called the lessee) any estate in the premises less than his own. It is the usual mode of creating an estate for years. ^^ = 2 2 Min. Insts. 191; 1 Washburn, Real Prop. 408. Lord Coke puts a case of a lease for twenty-one years and afterwards a second lease to begin "at the exph'ation of the term aforesaid of twenty-one years." If the first lessee surrenders his estate (thereby terminating it), the second lease takes effect at once; but, if the second lease is "from the expiration of the twenty-one years aforesaid," it must await the efflux of the whole time mentioned. Co. Lit. 4.5 b; Sheppard, Touchst. 274. 2 3 2 Min. Insts. VJI . 2*2 Min. Insts. 191; 1 Washburn, Real Prop. 472; 1 Tiffany, Real Prop. § 38; 4 Kent, Com. 97; Whitney v. Allaire, 1 N. Y. .'JOri. 2» I'c^st, § 0117. A lease may also take effect under the statute of uses. Ante, § 318; post, §§ 412, 998, 'lOOO. ^0 2 Min. lusts. 750, 7.j1 ; 2 Bl. Com. 317; 2 Th. Co. Lit. 403, note (A). If it pa-ss the grantor's entire estate, it is not a lease, but an assignment, 2 Min. Insts. 751, 795. A lease is to be carefully distinguished from an executory contract to lease, which, while frequently approaching closely to an executed lease (especially where the possession under the lease is to commence at a. future day), depends upon different principles. See post, § 321. Mince & W.Real Pkop.— 18 (273) § 320 ESTATES FOR YEARS — CREATION BY LEASE. [Ch. 14 At common law, since even an estate of inheritance or of free- hold did not require any writing for its creation, so a fortiori did not a lease for years, how long soever the term, nor did it require the livery of seisin so indispensable at common law to the creation of a freehold. The only safeguard and notoriety demanded by the common law in the case of the lease of land for years was the entry by the lessee already described.^'' The simple ceremonies of livery and entry might answer well enough for an unlettered people, who knew more of the sword than of the pen; nay, for such a people they were perhaps the best ex- pedients that could have been devised. But as society has advanced to a higher plane of culture and refinement, written memorials of transactions and a public and general registry have been found to afford a far more efficient protection to the interests of the parties and of the public.^' Accordingly, it was long ago provided in England by'the statute of frauds, 29 Car. II, c. 3, §§ 1, 2, 3, that no estates of inheritance or of freehold, or for a term exceeding three years, shall be convey- ed except by deed or writing. And this enactment has been more or less closely imitated throughout the United States. If, therefore, the estate conveyed does not exceed three years in England, or whatever the statutory period may be in one of the United States, it may be created as at common law by parol ; that is, verbally. ^^ If, despite the statute, it is attempted to lease by parol for a pe- riod greater than the statute permits, and the tenant takes posses- sion by virtue of the lease, it does not operate to give him the es- tate agreed upon, for that would be to set the statute at nought; nor can the tenant be looked upon as a trespasser, since he is in possession by the owner's consent. The English statute of frauds expressly declares that the tenant shall in such case be regarded as a tenant at will ; and in this country there is no doubt but that the same result follows upon general principles.^" But, though the tenant's estate under such a void lease, begins as an estate at will, it may be converted speedily into an estate from year to year up- on the payment and acceptance of rent, as will appear hereafter.^^ 2 7 Ante, § 318; 2 Min. Insts. 184; 1 Tli. Oo. Lit. 630, 631; 2 Bl. Com. 144. But no entry is required if tlie lease takes effect under tlie statute of uses. Ante, § 318. 2 8 2 Min. Insts. 184, 185. 2 9 2 Min. Insts. 185 ; 2 Th. Co. Lit. 404, note (A). 3 2 Min. Insts. 198; 1 Washburn, Real Prop. 622. See post, § 335. 81 Post, § 347; Clayton y. Blakey, 8 T. B. 3; Talamo v. Spitzmiller, 120 (274) Ch. 14] ESTATES FOE YEARS CONTEACT TO LEASE. § 321 § 321. Same— 2. Estate for Years Created (in Equity) by Ex- ecutory Contract to Lease. An executory contract to lease land is to be viewed from two standpoints : (1) The right of the lessee to bring an action for damages for the breach thereof ; and (2) the right of the lessee to the possession of the land itself under such contract, which right, if the agreement be for a term exceeding five years and be not by deed (that is, under seal), will be recognized and enforced only in a court of equity. A consideration of the sec- ond topic necessarily involves more or less a consideration of the first also. At common law an executory contract for the conveyance of an estate even of freehold, and a fortiori of a term for years, might have been by parol or verbal merely. But the same policy which wisely sought to prevent frauds and perjuries by requiring exe- cuted conveyances to be by deed or will has dictated, also, that ex- ecutory contracts to convey or to lease for a term should be better authenticated than by the parol testimony of witnesses. Hence the English statute of frauds, 29 Car. II, c. 3, while providing in the first three sections for the conveyance or lease of land, provides in the fourth for executory contracts to convey or to lease, declaring substantially that no action shall lie to charge any person upon a contract for the sale of land or of any interest therein, unless the contract or some memorandum or note thereof be in writing, signed by the party to be charged thereby or his agent, duly authorized. But some question has been made, in case of an oral contract for the lease of land for exactly one year, though the lease is to be ex- ecuted the next day, whether an action thereon is not prohibited by another clause of the statute of frauds, namely, that declaring that no action shall lie upon a contract not to be performed with- in one year, unless it be in writing. The answer to this question depends upon the act that constitutes the performance of the con- tract to lease. If that act be the making of the lease (and upon its face it would appear to be so), and if under the terms of the contract the lease is to be executed within one year, or even if it may be executed within one year, the statute does not apply.^^ This N. Y. 37, 23 N. B. 980, 8 L. R. A. 221, 17 Am. St. Rep. 607; Reeder v. Sayre, 70 N. y. 180, 26 Am. Rep. 567; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Dumn v. Rothermel, 112 Pa. 272, 3 Atl. 800 ; Barlow v. Wainwrlght, 22 Vt. 88, 53 Am. Dec. 79 ; Scully v. Murray, 34 Mo. 420, 86 Am. Dec. 116; Hunting- ton V. Parkhurst, 87 Mich. 38, 49 N. W. 597, 24 Am. St. Rep. 146. 32 Donellan v. Read, 3 B. & Ad. 809; Becar v. Flues, 64 N. Y. 518; Young V. Dake, 5 N. Y. 463, 55 Am. Dec. 356; Railsback v. Walke, 81 Ind. 409; HufC- man v. Starts, 31 Ind. 474; Sobey v. Brisbee, 20 Iowa, 105; Whiting v. Oh- lert, 52 Mich. 462, 18 N. W. 219, 50 Am. Rep. 265 ; Sears v. Smith, 3 Colo. (275) § 321 ESTATES FOR YEARS CONTRACT TO LEASE. [Ch. 14 is certainly the more logical view. But by some of the decisions, the contract is fully performed only by the termination of the ten- ant's enjoyment under the lease, which, if the lease were for one year and to commence at a future day, would bring it within the scope of this clause of the statute. ^^ However this may be, it seems certain that if the tenant has tak- en possession of the premises under the oral contract, and has made improvements or otherwise expended money thereon, so that the parties cannot be placed in statu quo, this is a part performance of the contract, which in equity is sufficient to take the case out of the statute of frauds, and to entitle the tenant to specific perform- ance.^* But though in a court of equity a contract for a lease, even if it be oral (and followed by possession and acts of part performance), may be regarded as an actual lease, conferring an equitable interest upon the lessee during the term agreed upon, it is otherwise in a court of law, and the tenant, though in possession under the oral agreement — indeed, because of that fact — is nothing more than a tenant at will."^ § 322. Same — 3. Estates for Years Created by Estoppel. If one having no title to land leases it, nevertheless, to another by deed or contract, the lessee acquires, of course, no title thereto by virtue of the lease. But if the lessor subsequently acquires title to the land at any time during the term agreed upon, he is estopped to deny the title of his lessee under the lease he himself has exe- cuted.^* Thus, where one, in possession of premises but without 287; Wallace v. Scoggins, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 753, note; Steininger v. Williams, 63 Ga. 475. 3 3 Wallace v. Scoggins, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749, 753, note; Wheeler v. Frankenthal, 78 111. 124; Martin t. Blancliett, 77 Ala. 288; Oliver v. Alabama Gold Life lus. Co., 82 Ala. 417, 2 South. 445; Delano v. Montague, 4 Cnsh. (Mass.) 42; Whiting v. Pittsburg Opera House Co., 88 Pa. 100; Atwood v. Norton, 31 Ga. 507; Jones v. Marcj-, 49 Iowa, 188. 3* Wharton v. Stouteiiburgh, 35 N. J. Bq. 266; Benjamin v. AVilson, 34 Minn. 517, 26 N. W. 725 ; Morrison v. Peay, 21 Ark. 110; Bard v. Elston, 31 Kan. 274, 1 Pac. 565. Even the payment of an installment of rent seeois to be a sufficient part performance to support a decree for specific performance on the part of the lessor or the lessee, as the case may be. Gj-ant v. Ramsey, 7 Ohio St. 158; Shaliespeare v. Alba, 76 Ala. 851; Steininger v. Williams, 63 Ga. 475 ; Baton v. Whitaker, 18 Conn. 222. 44 Am. Dec. 586. 3 5 Ellis V. Paige, 1 Pick. (Mass.) 43; Duke v. Harper, 6 Yerg. (Tenn.) 280, 27 Am. Dec. 4(i2; Robinson v. Deering, 56 Me. 357, et seq. 86 2 Min. Insts. 767; 1 Washburn, Real Prop. 484; 1 Taylor, Landl. & Ten. § 87 et seq.; Sturgeon v. Wingfield, 15 M. & AV. 224; Rawlyn's Case, 4 Co. 53; Utica Bank v. Mersereau, 3 Barb. Ch.^ (N. Y.) 528, 567, 49 Am. Dec. 189. See post, § 1065 et seq. This applies to leases made by an heir ap- (27G) Oh. 14] ESTATES FOE YEARS CREATED BY ESTOPPEL. § 322 title thereto, leased them with a covenant tha| the lessee should enjoy the premises without interference by the lessor or any one claiming under him, and the lessor subsequently acquired a title to the premises, it was held that the lessee might hold as against this newly acquired title by force of the lessor's covenant. ^^ It was at one time thought that, to produce this effect, the lease must be by deed indented, whereby the deed becomes the act of both parties, so that the estoppel must be mutual. Hence infants, married women, or other persons disabled to execute a deed, could not take advantage of a lease enuring in this way.^^ But it is now recognized that a tenant is estopped to deny his landlord's title, though the tenant be under such disabilities as would invalidate his agreements, and regardless of the form of instrument under which he claims ; the tenant's estoppel flowing merely from his pos- session under the lessor's consent, a contract or assurance on his part being immaterial.^" Hence the mutuality of estoppel is se- cured, and the lessor is estopped on his part to deny the lessee's title as against his own lease, so long as the_ lessee retains posses- sion, whether the lessee be under disabilities or not. No indenture is necessary to create such mutual estoppel.*" Upon -similar principles, if a lease for years cannot take effect immediately by reason of a prior lease of the same premises not yet expii-ed, the second lease may operate presently by estoppel for so much of the term as may be left after the expiration of the prior lease.*^ The estoppel in such cases arises from the express or implied as- surance in the lease that the lessor has a good title and that the tenant shall have quiet enjoyment of the premises. It is not, how- ever, confined, in its operation to the parties to the lease, but runs with the land and is binding upon all persons claiming under the parties, as the heir of the landlord claiming by descent, or his as- signee, or other privy in estate.*^ But if the lease shows upon its parent, a contingent remainderman, or one entitled to a contingent executory devise, etc. 3" Burr V. Stenton, 43 N. Y. 462, 466. In this case the lessor made an ex- press covenant for quiet enjoyment, but it is apprehended that this is im- material; such a covenant being implied in all leases under seal. Post, § 368; 2 Min. Insts. 193; 1 Washburn, Real Prop. 518, 519; Black v. Gilmore, 9 I^eigh (Va.) 448, 33 Am. Dec. 253 ; Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 79T; Beckwith v. Howard, 6 R. I. 1; Hart v. Windsor, 12 M. & W. 68, 85. 38 1 Washburn, Real Prop. 484. 3 9 Post, § 35T. 40 1 Taylor, Landl. & Ten. §§ 89, 90 ; 1 Washburn, Real Prop. 484. 411 Taylor, Landl. & Ten. § 88; Gilman v. Hoare, 1 Salk. 275. 42 1 Taylor, Landl. & Ten. § 91. (277) § 322 ESTATES FOR YEARS CREATED BY ESTOPPEL. [Oh. 14 face, by way of recital or otherwise, that the landlord has no inter- est at the time of the demise, his subsequent acquisition of title to the premises does not enure to the benefit of the lessee by way of estoppel.*^ If the lessor has any title at all at the time of the demise, though not the title he attempts to transfer to the lessee, the latter does not acquire a title to the premises by estoppel, but only such title as the lessor may lawfully pass at the time of the lease, notwith- standing his subsequent acquisition of a better title. Thus, if a tenant pur auter vie makes a lease for years and then purchases the reversion in fee, the death of cestui que vie, even before the lapse of the term marked out in the lease, puts an end to the ten- ant's estate, which cannot by way of estoppel feed upon the re- version subsequently acquired by the lessor.** The reason is that the lease operates by way of estoppel only as a last resort, as it were, upon the maxim, Ut res valeat magis quam pereat, and hence, if it may operate by way of passing an interest (though a less in- terest than that agreed to be conveyed), it shall not operate by estoppel.*^ § 323. Property Wherein Estates for Years may be Enjoyed. Estates for years may be had in any property corresponding to the description of lands and tenements. But ordinarily only such real property is the subject of lease (so as to create the relation of land- lord and tenant) as, if the estate created were a freehold, might have passed by livery of seisin at common law; that is, corporeal hereditaments. With respect to incorporeal hereditaments, while corresponding contracts may be made as to them, and estates for years created, the relation of landlord and tenant does not arise. *^ While these estates are usually created in entire houses or tracts of land, it is not always so. They may be possessed in parts of a house only, and for this purpose it is immaterial whether the house be divided vertically or horizontally. The house may be leased by sections ; one tenant leasing one side from basement to attic, and another the other side, with common or separate stairways. Or a tenant may lease one story, as in flats and apartment houses. The subdivision may be smaller still, and a tenant may lease a single *8 1 Taylor, Landl. & Ten. % 88; Hermitage v. Tompkins, 1 Ld. Raym. 729. 44 2 Min. Insts. 767, 768 ; 1 Washburn, Real Prop. 485 ; 1 Taylor, Landl. & Ten. § 87 ; Wynn v. Harman, 5 Grat. (Va.) 157. 4 5 2 Min. Insts. 767, 768. 4 6 1 Washburn, Real Prop. 493. But where land leased to a tenant for years has appurtenant to it a right of way over adjacent land, or other ease- ment therein, such easement will usually pass with the land to the tenant for the period of the lease. (278) Oh. 14] ESTATES FOE YEARS DISTINGUISHED FROM LODGINGS. § 324 room. But such agreements, to constitute actual interests in land, must be made clearly with that intent. Otherwise, they will be considered as mere lodgings.*' § 324. Estates for Years Distinguished from Mere Lodgings. An estate in a house for years (which may include an interest for a month or a week) is to be carefull)' distinguished from a mere letting or demise of lodgings, as in a hotel or a boarding house, which does not create an interest in the property, but is a mere license arising by contract between the parties; the control of the premises remaining with the owner of the house. In order that a contract of this sort should create an estate for 3-ears or actual interest in the building and land, it is necessary that the tenant have exclusive control and possession of the prem- ises leased, subject to his responsibilities under the law and un- der the covenants, conditions and restrictions reasonably stipulat- ed in the lease.*" A lodger, on the other hand, merely occupies a portion of the tenement; the control and ultimate right to the possession remaining in the owner. In such cases the respective rights of the owner and the lodger depend upon the particular con- tract and laws controlling them, not upon the general law of land- lord and tenant.** Hence a lodger cannot bring an action of trespass if unlawfully entered upon by the landlord or a third person, and is not liable for rent or to distress (in the absence of statute), or for damages in assumpsit for use and occupation, but can only sue and be sued upon the contract between the parties. °° So, also, his agreement is not within the provisions of the statute of frauds relating to leases and contracts to lease real estate, since the lodger has no interest in the realty.^i 47 1 Taylor, Landl. & Ten. § 66; Newman v. Anderton, 5 B. & P. 224; Smith V. Marrable, 11 M. & W. 5; Wilson y. Hatton, 2 L. R. Exch. Div. 336; Meclielen v. Wallace, 7 Ad. & E. 49; Cook v. Humtoer, 11 C. B. (N. S.) 44; Wright V. Stavert, 2 B. & E. 721, 725; Stamper v. Sunderland, L. R. 3 O. P. 388; Stocljwell v. Hunter, 11 iletc. (Mass.) 448, 45 Am. Dec. 220. 48 1 Taylor, Landl. & Ten. § 66 ; Wright v. Stocliport, 5 M. & G. 83 ; Queen V. St. George Union, L. R. 7 Q. B. 90; Henrette v. Booth, 15 C. L;. (N. S.) 100; Swain v. Mizner, 8 Gray (Mass.) 182, 69 Am. Dec. 244 ; Porter v. Merrill, 124 Mass. 5.34. 49 1 Taylor, Landl. & Ten. § 66; Kirkman v. Jervis, 7 D. P. C. 678; Fludice y. Lombei Cas. temp. Hardw. 307; Dohson v. Jones, 5 M. & G. 112; Waresey V. Perkins, 7 M. & G. 151 ; Brown y. McGowan, L. R. 5 C. P. 239 ; Roads v. Trumpington, L. R. 6 Q. B. 56, 62. 5 1 Taylor, Landl. & Ten. § 66; Lee v. Gansel, Cowp. 1;' Fludice v. Lombe, Cas. temp. Hardw. 307; Monks v. Dykes, 4 M. & W. 567; Smith v. Lancaster, L. R. 5 C. P. 246 ; Davis y. Waddington, 7 M. & G. 85 ; and cases cited su- pra. 61 Brown v. McGowan, L. R. 5 0. P. 239 ; Wright t. Stayert, 2 E. & E. (279) § 325 ESTATES FOE YEARS — COMMENCEMENT OF LEASE. [Ch. 14 § 325. The Commencement of the Lease. The true date of a lease, like that of any other conveyance, is not necessarily the date written in the lease itself, but the date of its delivery to the lessee, at which time only it becomes operative.''- It is, therefore, in gen- eral unimportant when it was written, or even signed, and it is com- petent to show by parol when it was delivered, though no date, or an impossible one, or a different one from that of its actual de- livery, be inserted in the lease. "^ But if the date of the commence- ment of the estate is entirely uncertain, and there is nothing to re- move the uncertainty, as in the case of a lease from November 20, without indicating what November, the lease is void for the un- certainty."* It is a 'general rule of the common law in respect to the compu- tation of time that where the time is to run from an act done, the day on which the act is done is to be excluded from the computa- tion. ''^ But in computing the time of the commencement of a lease, for example, where the lease is to run a year from its date, it may well be doubted whether the same rule is applicable.'"' Lord Coke and the older writers insigt upon a distinction between the compu- tation "from the day of the making" and "from the making" of the lease, holding that, where the computation is to be "from the day of the making," the day of the making of the lease is to be exclud- 721, 725; White v. Maynard, 111 Mass. 2.10, 15 Am. -Rep. 28; Wilson v. Mar- tin, 1 Denio (N. Y.) 602 ; Polack v. Sliafer, 46 Cal. 270. In one of tlie Eng- lisli cases it is said that the criterion by which an estate for years is to be distinguished from a mere contract for lodgings is "the possession of the street door. If exclusive control is retained hy the landlord, so that the ten- ants could only come in and go out with his assent and permission, then it may he said that they are mere inmates and lodgers, and not lessees." Queen V. St. George Union, L. R. 7 Q. B. 90, 97, 98. 52 2 Min. lusts. 731 et seq. ; post, § 916. 53 2 Min. Insts. 75.3; 1 Washburn, Real Prop. 469; Bac. Abr. Lease 12) ; Hall V. Cazenove, 4 East, 477, 481 ; Steele v. Mart, 4 B. & Cr. 272 ; Jackson V. Schooumaker, 2 Johns. (X. Y.) 230; Batchelder v. Dean, 16 N. H. 205, 2(;S. Thus, where a lease purported to bear date March, 1783, and to run "from March last past" for thirty-five years, it was held competent to show by parol that the lease was not delivered until after March, 1783, and that it began, therefore, in March, 1783, not in Jlarch, 1782. Steele v. Mart, supra. 6* 2 Min. Insts. 753; Bac. Abr. Lease (2). 6 5 2 Min. Insts. 190; 2 Bl. Com. 140, note (3) ; Baylor, Bills, 155; Lester v. Garland, 15 Ves. 253. Thus, if a negotiable security Is payable so many days after sight, the day of presentment or of sight is not to be reckoned ; and so, where a security is to be given within sl.x months after the testator's death, the day of the death is to be excluded. 2 Min. Insts. 100. 58 2 Min. Insts. 754. A large number of cases upon this point will be found collected in a note to 49 L. R. A. 210. (280) Ch..l4] ESTATES FOE YEARS — MAY SHIFT TO ANOTHER. § 320 ed, while, if it is to be "from the making," the day is to he in- cluded."'' But the more modern and the better doctrine appears to be that the word "from" may in the strictest propriety of language be tak- en as either inclusive or exclusive of the day, according as the cir- cumstances of the case may require."* Thus, in a lease made un- der a power to grant leases in possession, but not in futuro, the word "from" ought to be construed as intended to include the day of the making, for otherwise the lease would be inoperative.^'* In- deed, it is perhaps not too much to say that in general the words "from the date," when used to pass an interest, are to be construed as inclusive of the day,"" upon the well-settled rule of construc- tion that conveyances are to be construed most strongly against the grantor and in favor of the grantee. ^^ § 326. Estates for Years may Commence or Shift to Another in Futuro. The common law rigorously enforced the rule pro- hibiting the abeyance of the freehold, and such an estate was nev- er permitted at common law to spring up in futuro, unless there is a preceding estate; the freehold taking effect in the latter event as a remainder.''^ Nor did the common law permit a freehold once vested to be divested upon the happening of a future contingency, so as to go over to a third person. Hence, if a conveyance be made "to A. and his heirs, but if A. die under twenty to C. and his heirs," the estate in C. is at common law of no effect, even though A. die under twenty.*' The livery of seisin required at common law to create a freehold estate is at the foundation of both of these principles. For, since hvery of seisin is nothing more than the delivery of the possession of the freehold by the grantor to the grantee, it must operate im- mediately or not at all ; it cannot take effect in futuro ; and hence it is that an estate of freehold cannot at common law be made to commence in futuro, without a tenant of a preceding estate to whom the livery maj' be given."* 67 2 Min. Insts. 7.54; 2 Th. Co. Lit. 407, 408; Cornish v. Cawsy, Aleyn, 77. 58 2 Jlin. Insts. 754. 59 Freeman v. West, 2 Wils. 265 ; Pugh v. Dulie of Leeds, Cowp. 714 ; Hat- ter V. Ash, 1 Ld. Raym. 48. 60 2 Min. Insts. 754; Bellasis v. Hester, 1 Ld. Raym. 280; King v. Adder- ley, 2 Dougl. 465. 612 ilin. Insts. 754, 1058; 4 Kent, Com. 95, note (B) ; Lester v. Garland, 15 Ves. 248 ; Lysle v. Williams, 15 Serg. & R. (Pa.) 135. 6 2 Ante, § 136; post, § 676 et seq. 6 3 Post, § 680. 81 Ante, I 136; 2 Bl. Com. 144, 165, 166, 314; 3 Th. Co. Lit. 102, note (G). (281) § 326 ESTATES FOR YEARS MAY SHIFT TO ANOTHER. [Ch. 14 And since livery of seisin was the reliance of the common law to give notoriety to a transfer of a freehold, that law also demand- ed that the freehold thus notoriously created, if it is terminated otherwise than by the regular expiration of its original limitation, as upon a breach of condition, be terminated by an act of equal notoriety with the livery creating it. This act of corresponding notoriety was found in the re-entry of the grantor or his heirs for the condition broken; and it was a principle of the common law that upon a grantor's re-entry for condition broken he was seised of the land as before the grant, under paramount title (that is, he is seised as if there had never been a grant), thus wiping out all subsequent limitations dependent upon the happening of the con- tingency."^ Remembering that these results flowed from the common-law requirement of livery of seisin, it will be readily seen that since actual livery of seisin was dispensed with, as it has been under the statutes of uses,"" and of wills,"'' the consequences above men- tioned have ceased to follow, so that now for several centuries past estates. of freehold have been freely created to commence in fu- turo without any preceding estate, and have been permitted, when once vested, to shift over to another person upon the happening of a contingency. Such estates are known generally as executory limitations, or specifically as executory uses or executory devises, and in another aspect as springing or shifting limitations, accord- ing as they spring up in futuro without a preceding estate or shift from one to another upon the happening of a contingency."^ It has been necessary thus to anticipate briefly the very impor- tant principles regulating executory limitations of freehold estates in order that the creation of future estates for years may be prop- erly understood. With respect to the latter, it is to be observed that, no livery of seisin being required at common law to commence such estates, but only an ex parte entry (which might be made in the absence of the lessor or after his death, or even after the lessee's death by his personal representative"'), there was never any difficulty in cre- ating a term for years, to commence in futuro.'" And for the same reason such an estate might, even at common law, be made to cease before its regular expiration, and to shift over to another upon the 6 5 Post, §§ 480, 680. 6 27 Hen. VIII, c. 10. 07 32 Hen. VIII, c. 1 ; 34 Hen. VIII, c. 5 ; :20 Car. II, c. 3, § 5. 8 Post, § 675 et seq. 6 9 Ante, § 318. 70 2 Min. Insts. 191, 192, 2 Bl. Com. 143, 144, 165. (282) Ch. 14] ESTATES FOE TEARS TO COJaSIENCE IN PUTTJRO. § 327 happening of a future contingency, without the necessity for any re-entry of the grantor to terminate the first talter's estate." § 327. Same — Lease to Commence in Futuro Distinguished from Executory Contract to Lease. It is often important and some- times difficult to determine wliether a particular written instru- ment is intended as a present executed lease, with the possession to be given in futuro (that is, a lease to commence in futuro), or as a present executory contract to execute in futuro a lease. And, indeed, the same question presents itself where the possession is given immediately whether the writing is intended as a present lease or a contract to execute a lease in the future. These are questions of the intention of the parties, to be gather- ed from the entire instrument and from the surrounding circum- stances, rather than from particular words or expressions in any single part of the instrument. If the intention is shown to part with the possession immediately, the agreement will usually be construed to be a present lease; and so if the intent be shown to give the possession to the lessee at any time before the execution of the stipulated future lease. In such cases, the agreement for a further lease is regarded simply as an indication that the first lease has been hurriedly drawn and is a preliminary draft, and that the second is designed to be merely a fuller and more perfect assur- ance of title. ''^ Thus, where it was stipulated that "A. agrees to let and B. agrees to take" certain premises for a designated term of years, and upon compliance with certain terms A. was to ex- ecute a lease, but meanwhile that "this agreement shall be consid- ered binding till one fully prepared can be produced," the instru- ment was held to be a lease in prassenti; the possession being given and the court considering that the stipulation for a future and more formal lease might be for the more convenient underletting or as- signment of the premises.''^ But, if a fuller lease is to be executed before the possession 'is given, the first instrument is to be regarded merely as an execu- tory contract for a lease to be made in the future, and as such 71 2 Min. Insts. 192; 2 Th. Co. Lit. 87, 88. Hence a demise "to J. S. for one hundred years, but if he do not pay $1,000 on January 1, his estate to go over to B. C," immediately by the original common law vests an estate for the balance of the hundred years in B. C. if J. S. do not pay the money promptly. 2 Min. Insts. 192. 72 2 Min. Insts. 751; 1 Washburn, Real Prop. 480, 481; Morgan v. Bissell, 3 Taunt. 65; Goodtitle v. Way, 1 T. R. 735; Doe v. Clare, 2 T. R. 739; Tem- pest V. Ravplings, 13 East, 18; Doe v. Groves, 15 East, 244; Boisseau v. Ful- ler, 96 Va. 45, 30 S. B. 457; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 341. 73 Poole V. Bentley, 12 East, 168; Doe v. Groves, 15 East, 244. (283) § 327 ESTATES FOE YEARS — TO COMMEN'CE IN FDTURO. [Oh. 14 need not be under seal at all, but must be in writing if the contract be for a lease for more than one year, or if the lease is not to be executed within one year.'* If, as a matter of fact, the lessee does not assume possession un- der the contract, and the intention whether to give possession be- fore or after the execution of the future lease cannot be clearly gathered from the instrument itself, the acts and declarations of the parties, it seems, may be looked to in aid of the construction to be placed upon the agreement.'^ Should these aids fail also, the further test is laid down that, if the agreement of the parties leaves nothing incomplete or unprovided for that is essential to a good lease, the agreement is to be regarded as a present demise.''^ On the other hand, though the agreement is in perfect form, the most proper words of leasing being made use of, yet if, upon the whole instrument, there appears the intent that it shall be taken only as a preliminary draft of the real lease, the law will rather do violence to some of the words used than to the manifest intent of the parties by construing that to be a present lease which is plain- ly intended only as an agreement for one.'' § 328. Incidents of Estates for Years — Discussion Outlined. The general rights and obligations of the landlord and the tenant of land, respectively, depend in part upon the law and in part up- on the covenants and stipulations contained in the lease, which will be more fully discussed hereafter in examining the relation of land- lord and tenant.'^ Attention will now be confined to those inci- dents which are annexed by law to estates for years. We shall consider: (1) The tenant's power of alienation; (2) his right of estovers ; (3) his right to emblements ; (4) his lia- bility for waste; (5) the doctrine of merger; (6) the tenant's right to the exclusive possession of the premises. § 329. Same — 1. Tenant's Power to Aliene Estate for Years. At common law a tenant for years, like a tenant for life, was re- 7 4 Ante, § 321; 1 Washburn, Real Prop. 481; McGrath v. Boston, 103 Mass. 300; People v. Gillis, 24 Wend. (N. Y.) 201 ; Buell v. Cook, 4 Conn. 238 ; Aiken V. Smith, 21 Vt. 172; Griffin v. Knlsely, 75 111. 411. In Buell v. Cook, supra, the lessor was to obtain an authority from another person before he could make a valid lease. It was held, therefore, that the contract was executory. So, in McGrath v. Boston, supra, the agreement was held executory, because it was stipulated that a lease was to be given after repairs were made. '5 Doe V. Ashburner, 5 T. R. 163; Chapman v. Bluck, 4 Biug. X. C. 187. '0 1 Washburn, Real Prop. 482; Kabley v. Worcester Gas Co., 102 Mass. S92 ; Shaw v. Farnsworth, 108 Mass. 357 ; Haven v. Wakefield, 39 111. 509. T' 2 Min. Insts. 751; Goodtitle v. Way, 1 T. R. 735; Doe v. Clare, 2 T. R. 739; Tempest v. Rawlings, 13 Bast, 18; Doe v. Smith, 5 East, 530; Tunis v. Grandy, 22 Grat. (Va.) 125, 126. '8 Post, § 350 et seq. (2&4) Ch. 14] ESTATES FOR YEAES EIGHT TO EMBLEMENTS. § 331 stricted in his power of aliening his estate by the single limitation that he must not by "a tortious conveyance aliene a greater estate than he has, the penalty being a forfeiture of his estate to the re- versioner or remainderman.'" But the tenant may be restricted in his power to aliene by cove- nants, or by conditions in the lease terminating the estate upon any attempt by him to assign or sublease the premises, which con- ditions, even though in absolute restraint of his power to assign or sublease, are not void, as they would be if attached to a fee sim- ple,^" but are valid and binding.*"- In the absence, however, of any such restrictions imposed by the parties' own stipulations, the law imposes none, and permits the tenant to aliene his estate (1) by sublease ; and (2) "by assign- ment. A sublease exists where the tenant alienes the land for only a part of his time, leaving a reversion in himself, while by an assign- ment he transfers his whole interest to another — either in the en- tire land or in part thereof — leaving no reversion in himself as to the part disposed of.*^ The essential difference between the two modes of alienation is ■ that the undertenant, in the case of a sublease, is neither in priv- ity of contract nor in privity of estate with the original lessor, while the assignee of the lessee for years is in privity of estate with the original lessor, and succeeds to the rights and liabilities accruing to the lessee upon his covenants — at least upon such of the cove- nants as run with the land.*" § 330. Same — 2. Tenant's Right of Estovers. In respect of estovers, the tenant for years, unless it be otherwise stipulated, has the same right as a tenant for life to cut down or take and use for the necessities of the land leased such timber and other natural sup- plies as he may need for fuel, repairs, etc.** An analogous right to which the tenant is entitled is that of cut- ting down underbrush at any time, so that he does not destroy the young timber and subsequent growth.*^ § 331. Same — 3. Tenant's Right to Emblements. Emblements, it will be remembered, accrue only to tenants whose estates (1) come to an unexpected end, (2) without their own default, and (3) where the tenant himself has planted the crops. *° ' TO Ante, § 194 et seq. si Post, § 525. 80 Ante, § 151; post, § 516 et seq. «^ Post, § 374 et seq. S3 These principles are discussed quite fully hereafter. See post, § 374 et seq. 8* Ante, §§ 39, 193. 8 5 2 Min. Insts. 603, 604. «« Ante, § 42 et seq. (285) § 331 ESTATES FOE YEARS— EIGHT TO EMBLEMENTS. [Ch. 14 It is obvious that the first of these requirements would in most cases stand in the way of any claim to emblements as incident to the termination of an estate for years, since in its very nature the end of such an estate is definite and fixed, and not unexpected — except that in some states by local custom the doctrine of "away- going crops" permits a lessee for years to take the crops growing upon the land at the termination of the lease. *^ But, even independently of the doctrine of "away-going crops," cases may arise in which a tenancy for years may come to an un- expected end, and if it does the tenant is at common law entitled to emblements. Thus, if a tenant for life leases to another for years, and the latter plants a crop, and before harvest the life tenant dies, whereby the lessee's estate is immediately terminated without his default, the lessee is at common law entitled to the emblements, and to free ingress and egress to cultivate and harvest the same.^^ § 332. Same— 4. Tenant's Liability for Waste. The subject of waste will be discussed quite fully hereafter,*^ so that it may here be dismissed in a few words. Waste is any permanent injury to the inheritance, arising other- wise than by an act of God or a public enemy,"" and the tenant for years is under the same obligations with respect thereto as a ten- ant for life.^^ The lessee has the right to use the premises, in the absence of a contrary stipulation, in any way he pleases, so that he be not guilty of waste, unless he has leased them for a particular purpose, in which case he is confined to that use or to uses very similar. One who leases a building for hotel purposes, for instance, cannot convert it into a public seminary."^ As a result of his liability for waste, also, the tenant is to a cer- tain extent bound to make repairs, not, by any means, that he is bound to replace structures dilapidated or destroyed by time or use, or to substitute new structures for old, in the absence of a stipulation to that effect;"" but under his liability for waste, if 87 Ante, § 45. 8 8 Ante, § 44; 2 Min. Insts. 104, 196; 2 Bl. Com. 124, 145; 1 Washburn, Real Prop. 141. 8 Post, § 379 et seq. 9 Post, § 379. »i Ante, § 199. For the tenant's right to remove fixtures, see ante, §§ 35, 36. 2 2 Min. Insts. 761 ; 1 Washburn, Real Prop. 358, 359; 1 Taylor, Landl. and Ten. § 343. 3 Post, § 379; United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65; Smith V. Kerr, 108 N. Y. 31, 15 N. E. 70, 2 Am. St Rep. 362; Johnson v. Dixon, 1 Daly (N. Y.) 178 ; Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923; Long v. Fitzsim- (286) Ch. 14] ESTATES FOR YEARS MERGER. § 333 a house be unroofed by a tempest, or a door or window blown in, while not liable for the initial damage, which is caused by the act of God, and is therefore not waste, the tenant would be responsi- ble for any damage subsequently ensuing to the building by the inroads of the weather. It is his duty to put up a temporary roof, door or window, or otherwise keep out the weather, or he is lia- ble for permissive waste.'* § 333. Same — 5. Doctrine of Merger. It is a general rule of the common law, already observed,'" that two estates in the same land, the one larger and the other smaller, will not be supposed to be vested in the same party in his own right at the same time. The lesser is merged, swallowed up and extinguished by the greater. This is always true, in a court of law at least, if the greater estate be a freehold and the lesser a term for years, provided there be no estate intervening between the two, and provided, further, that the two estates are not originally limited to the same person. "^ Merger depends upon the intention, actual or presumed ; and hence no merger occurs in any case where it is the manifest in- tention that it should not take place. Upon a conveyance "to A. for ten years, remainder to B. for twenty years,'' if A. surrender his interest to B., the purpose may be either (1) to increase B.'s estate by the addition of the ten years belonging to A., or (2) with- out increasing B.'s estate to permit him to enjoy his own twenty- year estate ten years earlier than he otherwise would. If the last is the real intent, and such is prima facie presumed to be the case, there is a merger of A.'s term into B.'s; if the first, there is no merger, and B. takes the estate for the entire period of thirty years. "^ The presumption of merger, however, seems to be strong- er in case of a reversion than in case of a remainder.'* mons, 1 Watts & S. (Pa.) 530 ; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 416. 91 Post, §§ 379, 386; Co. Lit. 53a; 2 Min. Insts. 614; Hitner v. Ege, 23 Pa. 305; Suydam v. Jackson, 54 N. Y. 450; Townshend v. Moore, 33 N. J. Law, 284. »5 Ante, § 201. The only exception is the case of an estate tall. Ante, § 191. 86 2 Min. Insts. 197, 430. The first of these provisos depends upon the principle that merger is never permitted if the rights of third persons are thferehy Impaired; and the second, upon the principle that merger is a mat- ter of the intention of the parties, and no presumption of such an Intent will arise if the grantor himself has conveyed both estates to the same person by the same conyeyance. 07 2 Min. Insts. 430; 2 Th. Oo. Lit. 557, note (K); 1 Washburn, Real Prop. 586, 587 ; 3 Preston, Conv. 201 ; Bredon's Case, 1 Oo. 77a ; Treport's Case, 6 Co. 15a. B8 1 Washburn, Real Prop. 586. (287) § 333 ESTATES FOR YEARS MERGER. [Ch. 14 It is to be observed that while, as between a freehold and a term for years, the former is always regarded as the greater estate, as between two estates for years the reversionary estate by way of remainder or reversion is regarded as the greater, in which the other merges, though in point of fact it may be limited to endure for a shorter period. ^^ It is also to be noted that even if the circumstances are such as, in a court of law, would call for a merger, a court of equity will re- lieve against it, if to enforce it would result in injury to innocent third parties.^ Thus, in a Virginia case, A. leased to B. for twen- ty years, with liberty to B. to surrender the lease at any time be- fore the expiration of the term upon payment of five shillings. A. devised the rents during the term to his five daughters, and the fee to his son. P., who sold to B., who then surrendered his lease. It was held that this should not operate as a merger, and thereby disappoint the daughter's legacies.^ § 334. Same — 6. Tenant's Right to Exclusive Possession of the Premises. The theory of the law, upon a lease for years, as well as for life, is that during the period of the lease the land belongs exclusively to the lessee, unless rights of entry, etc., are reserved to the lessor by the lease itself. In the absence of any such reserva- tion or exception, the lessor is so effectually divested of the pos- session during the term that he cannot maintain an action of tres- pass against a stranger who enters and cuts trees upon the prem- ises, or commits other acts of trespass, even though the tenant him- self be restrained by his covenants from doing such acts.^ In a case of this kind, the tenant may sue the stranger in trespass for the unlawful entry; but the landlord should sue in trover for the value of the trees.* The lessee is entitled to the exclusive possession during the term as against the lessor as well as third parties, in the absence of stip- ulations to the contrary, and the lessor becomes a trespasser if he enters upon the premises without the lessee's consent, express or implied.'^ 9 9 2 Mill. Insts. 197. 1 2 Min. Insts. 198; Powell v. Morgan, 2 Yern. 90; Graham v. Woodson, 2 Call (Va.) 249. 2 Graham v. Woodson, 2 Call (Va.) 249. 3 1 Washburn, Real Prop. 497 ; Greber v. Kleekner, 2 Pa. 2S9. But had the landlord excepted the trees from the lease, he might maintain trespass. 1 Washburn, Real Prop. 497, 498. i Burnett v. Thompson, 51 N. C. 210, 21,3. The same principles would gov- ern the taking from the premises by a stranger of the crops, minerals, etc. 1 Washburn, Real Prop. 498. 6 1 Washburn, Real Prop. 498. (2S8) CHAPTER XV. ESTATES AT WILL. § 335. Nature and Creation of Estate at Will. 336. Nature of Estates Determinable at the Will of One Party Only. 337. Tenant at Will Cannot Assign His Interest. 338. Incidents of Estates at Will. 1. Estovers. 339. 2. Emblements. 340. 3. Liability of Tenant at Will for Waste. 341. 4. Liability of Tenant at Will for Rent. 342. Termination of Estates at Will. § 335. Nature and Creation of Estate at Will. An estate at will arises where lands or tenements are expressly demised by one person to another to be held during the joint wills of both parties ; or it may arise by implication of law wherever one person is put in possession of another's land with the owner's consent, but under an agreement which does not suffice to create in the tenant an estate of freehold or for years. ^ Thus, at common law, if one enters upon land under a feoffment purporting to pass a freehold, but without livery, the freehold does not pass, but the tenant is in possession by the agreement and con- sent of the owner, and a tenancy at will is created.^ So, if one enter upon land under a verbal lease from the owner for a term required by the statute of frauds to be created by a writ- ten instrument, or a verbal conveyance for life or in fee, the ten- ant cannot take the estate agreed upon in the lease or conveyance ; yet he is in possession by the consent of the owner, without any definite estate in the land, and hence a tenancy at will arises by implication.^ So, also, it is in the case of a vendee of land under a contract of sale who is put in possession, vvhile in equity he is regarded as the true owner, if entitled to specific performance, he is in a court of law regarded only as a tenant at will.* And so in 1 2 Min. Insts. 198 ; 1 Washburn, Real Prop. 612. 613, 623 ; 2 Bl. Com. 14r, ; 1 Tb. Co. Lit. 63T, note (A). = 2 Min. Insts. 745 ; 2 Bl. Com. 311. s 2 Min. Insts. 198 ; Leavitt v. Leavitt, 47 N. H. 329 ; Gould v. Thompson, 4 Mete. (Mass.) 224; Hall v. Wallace, 88 Cal. 434, 26 Pac. 360; Patterson v. Stoddard, 47 Me. 3.55, 74 Am. Dec. 490 ; Harris v. Frink, 49 N. Y. 24. 10 Am. Rep. 318 ; Doe v. Chamberlaine, 5 M. & W. 14 ; Right v. Beard, 13 East, 210. See Lyon v. Cunningham, 136 Mass. 532. But see 1 Taylor, Landl. & Ten. § 25, note, and cases there cited. 4 1 Washburn, Real Prop. 622 ; Twyman v. Hawley, 24 Grat. (Va.) 514, 18 Am. Rep. 661; Creigh v. Henson, 10 Grat. (Va.) 232; Jackson v. Miller, 7- MiNOE & W.Real Prop.— 19 (289)- § 335 ESTATES AT WILL — NATURE AND CREATION. [Gh. 15 the case of a mortgagor (under the common-law theory) or gran- tor in a deed of trust, who remains in possession of the premises mortgaged without any express stipulation that he may remain there until default.^ Since the tenant in possession under such circumstances has a lawful interest in the land, and is no trespasser nor wrongdoer, he cannot be evicted nor sued in ejectment until he has received no- tice that the tenancy is terminated and that he must surrender the premises." It must be observed, however, that if the estate at will arises by implication it remains an estate at will only until the payment and acceptance of rent. Immediately thereupon it becomes an estate from year to year, which is quite a different estate.'' At present the only estate which, despite the payment and acceptance of rent, may remain an estate at will, is that created expressly to terminate at the will of either party. § 336. Nature of Estates Determinable at the Will of One Par- ty Only. A tenancy at will is at the will of both parties, and ei- ther the lessor or the lessee may always terminate it at pleasure.' But this does not necessarily mean that an estate cannot be cre- ated which may be expressed to be terminable at the will of only one of the parties, but that, if created, it must be regarded either as an estate at will, and therefore terminable, upon the principle of mutuality, at the will of either party," or else as an estate for the period named in the lease, liable to be suddenly determined by the exercise of the option of one of the parties.^" Oow. (N. Y.) 747 ; Weed v. Lindsay, 88 Ga. 68G, 1.5 S. E. 836, 20 L. R. A. 33 ; Freeman v. Headley, 33 N. J. Law, 523; Jones v. Jones, 2 Rich. Law (S. 0.) :542 ; and cases cited supra. 12 Min. Insts. 198; Creigli v. Henson, 10 Grat. (Va.) 2.32. « 2 iliu. Insts. 199 ; Right v. Beard, 13 East, 210 ; Xewley v. Jackson, 1 B. & Cr. 448 ; Twymau v. Hawley, 24 Grat. (Va.) 514, 18 Am. Rep. 661. T 2 Jlln. Insts. 200 ; post, § 347. s 2 Min. Insts. 199 ; 1 Th. Co. Lit. 637 ; 2 Bl. Com. 145 ; Cowan v. Radford Iron Co., 83 Va. 551, 3 S. E. 120 ; Oglesby v. Hughes, 96 Va. 115, 30 S. E. 439 ; Cheever v. Pearson, 16 Pick. (Mass.) 266 ; Knight v. Indiana Coal & Iron Co., 47 Ind. 105, 17 Am. Rep. 692 ; Doe v. Richards, 4 Ind. 374 ; Withers v. Larra- bee, 48 Me. 570. But see Efflnger v. Lewis, 32 Pa. 367. 9 2 Min. Insts. 199 ; Cowan v. Radford Iron Co., 83 Va. 551, 3 S. E. 120. See, also, Cheever v. Pearson, 16 Pick. (Mass.) 266 ; Knight v. Indiana Coal & Iron Co., 47 Ind. 105, 17 Am. Rep. 692 ; Eclipse Oil Co. v. South Penn Oil Co., 47 W. Va. 84, 34 S. E. 923. But see Gilmore v. Hamilton, 83 Ind. 196. 10 1 Washburn, Real Prop. 613 ; . Doe v. Browne, 8 East, 165 ; Beeson v. Burton, 12 C. B. 647 ; Davis v. Waddington, 7 M. & G. 37, 4T, note ; Myers v. Kingston Coal Co., 126 Pa. 582, 17 Atl. 891; Effinger v. Lewis, 32 Pa. 3G7; Shaw v. Hoftman, 25 Mich. 162. (290) Ch. 15] ESTATES AT WILL ESTOVERS. § 338 It seems to be pretty clear that if the estate is expressly declared terminable at the will of one of the parties, and nothing is said as to its binding effect on the other, it is an estate at the will of both parties, and either may terminate it at his option. ^^ But if either party is bound by the terms of the lease for a particular period, with an option in the other to terminate it when he pleases, it would seem that, while this vests an interest in the lessee, it is not properly an estate at will, but a conditional estate for the term agreed upon, liable to be determined suddenly by the exercise of the option/^ Thus, where the tenancy was stipulated to be for five years, unless the lessor should desire to build upon the leased premises, in which case the lessee was to quit, it was held not to be a tenancy at will, but one upon condition, and terminable only upon reasonable no- tice to the lessee of the lessor's intention to build. ^^ § 337. Tenant at Will Cannot Assign His Interest. A tenancy at will is regarded by the law as a very precarious interest, being terminable at any moment at the mere caprice of either party, and hence, though of indeterminate duration, is not an estate of free- hold.i* For the same reason, the tenant at will cannot execute a bind- ing assignment of the premises to a third person ; the attempt to do so operating a termination of the estate, if the lessor so desires.^ ^ But, if he merely subleases, it seems that the underlease is valid, as between him and his sublessee, so long as the tenant at will is permitted to occupy the premises.^* In any event, the lessee or assignee of the tenant at will, from the original lessor's point of view, is not to be regarded as him- self a tenant at will, but merely as a tenant by sufferance, unless the lessor accepts rent from him and thereby makes him a tenant from year to year.^^ § 338. Incidents of Estates at Will— 1. Estovers. In the ab- sence of stipulations to the contrary, a tenant at will may cut and 11 Cowan v. Radford Iron Co., 83 Va. 551, 3 S. B. 120; Harrison v. Middle- ton, 11 Grat. (Va.) 527 ; Doe v. Richards, 4 Ind. 374. 12 1 Washburn, Real Prop. 613 ; Shaw v. Hoffman, 25 Mich. 162; and other cases cited supra. 13 Shaw V. Hoffman, 25 Mich. 162. 14 Ante, § 129. i5Pinhorn v. Souster, 8 Exeh. 763, 772; Clark v. Wheelock, 99 Mass. 14; Cooper V. Adams, 6 Cush. (Mass.) 87 ; Reckhow v. Schanck, 43 N. Y. 448 ; Say V. Stoddard, 27 Ohio St. 478 ; Cunningham v. Helton, 55 Me. 33, 38 ; Dingley V. BufCum, 57 Me. 381 ; Austin v. Thomson, 45 X. H. 117. 18 1 Washburn, Real Prop. 614. See Holbrook v. Young, 108 Mass. 83, 85. II 1 Washburn, Real Prop. 614. (291) § 339 ESTATES AT WILL — EMBLEMENTS. [Ch. 15 use such timber, etc., on the premises as may be necessary for fuel or repairs upon the premises so leased, like any other tenant.^ ^ § 339. Same — 2. Emblements. Since the estate of a tenant at will is of uncertain duration, if he plants crops and the estate is terminated before harvest not by his act, he is, like other tenants of uncertain interests, entitled to the emblements, and to free in- gress and egress to cultivate, harvest and carry them away. But it is otherwise if the estate be terminated by the exercise of his will, or by his default.^" § 340. Same — 3. Liability of Tenant at Will for Waste. It seems that a tenant at will, committing voluntary waste, is con- sidered thereby to have terminated his estate, and he becomes straightway liable to the lessor as for a trespass, like a stranger, and not as for waste, like a tenant. But for permissive waste he is, in England, not liable at all, not falling within the terms of the statute of Marlebridge, 52 Hen. Ill, c. 23, which declares all tenants for life or for years liable for waste, but omitting tenants at will.^" § 341. Same — 4. Liability of Tenant at Will for Rent. If the estate be an expressly created estate at will, the tenant at will is liable for rent in accordance with the stipulations and intent of the parties, like other tenants, and a failure to pay the same may be remedied as in other cases. And if, by the will or act of the lessee, the estate be terminated before a rent day, the tenant is bound to pay the rent up to the next rent day, for otherwise an injustice would be done the lessor.^^ On the other hand, if the estate be determined before rent day by the will or act of the lessor, upon the maxim; "Annua nee deb- itum judex non separat," the tenant would at common law escape all liability for rent accruing since the last rent day.^^ In cases where the estate at will has arisen by implication of law, there being no express agreement to pay rent, as where a vendee of land under a contract of sale is put in possession of the premises, his liability to pay rent for his use and occupation de- pends upon circumstances. 18 2 Min. lusts. 199; ante, § 39. 19 2 Min. Insts. 199; 1 Th. Co. Lit. 638 et seq.; ante, § 42 et seq. 20 2 Min. Insts. 199 ; 1 Th. Co. Lit. 644, 645. 21 2 Min. Insts. 200 ; 2 Bl. Com. 14T. But this is an insufficient expedient to prevent injustice, since the lessee might, in view of it, terminate the estate on, or just before, a rent day, and thus leave the premises without a tenant. 2 Min. Insts. 200. 22 2 Min. Insts. 52. See ante, § 207. In the United States, generally, rent is apportionable by statute. ■ (292) Oh. 15] ESTATES AT WILL TERMINATION. § 342 Thus, if the ultimate failure of the contract is the fault of the vendor, the vendee is not bound to pay rent for his previous oc- cupation, in the absence of an express stipulation to that effect.^^ But if, after the contract of purchase is entirely at an end, and known to be so, the proposed purchaser continues to hold posses- sion, there arises an implied undertaking on his part to pay for such vise and occupation.-'' On the other hand, if the failure of the contract is due to the fault of the vendee, as by his refusal to perform the contract or to accept a conveyance, he is liable to the vendor in damages for his use and occupation. Some of the courts have held in such case that he may be made liable in assumpsit for use and occupation, implying a contract to pay rent upon equitable grounds ; but the better opinion is that a contract is not to be implied from circum- stances, the occurrence of which never entered into the minds of either party, and hence that the owner's remedy in such case is not in assumpsit, but in trespass or trespass on the case.^^ § 342. Termination of Estates at Will. A tenancy at will is terminable at any time, at the will of either party. The exercise of this option may be either (1) express, as by declaring that the lessee shall or will hold no longer (the declaration to be made on the premises, or made known to the other party) ; ^^ or (2) implied, as by the exercise of any act of ownership on the part of the lessor, inconsistent with the continued existence of the lessee's estate, such as the lessor's entry on the premises and cutting timber or har- vesting crops growing thereon, or his feoffment or lease of the premises to another, to commence immediately ; or, on the part of the lessee, by any act of abandonment or desertion of the premises, for example, the assignment of the premises to another, or by any act of destruction, such as the commission of voluntary waste ; or, as to either, by death. But the marriage of a feme, whether she be the lessor or the lessee, does not of itself terminate a tenancy at will." 23 Winterbottom v. Ingham, 7 Q. B. 611 ; Tew v. Jones, 13 M. & W. 14 ; How- ard V. Shaw, 8 JI. & W. 118 ; Little v. Pearson, 7 Pick. (Mass.) 301, 19 Am. Dec. 289 ; Sylvester v. Ralston, 31 Barb. (X. Y.) 286 ; Bell v. Ellis, 1 Stew. & P. (Ala.) 294 ; Coffman v. Huck, 24 Mo. 496 ; Harle v. ilcCoy, 7 J. J. Marsh (Ky.) 318, 23 Am. Dec. 407. 21 Howard v. Shaw, 8 M. & W. 118; Hogsett v. Ellis, 17 Mich. 351. 25 1 Washburn, Real Prop. 626; Kirtland v. Passett, 2 Taunt. 14.5; How- . ard V. Shaw, 8 M. & W. 123 ; Bancroft v. Wardwell, 13 Johns. (N, Y.) 489, 7 Am. Dec. 396 ; Brewer v. Conover, 18 N. J. Law, 214 ; Bell v. Ellis, 1 Stew. & P. (Ala.) 294 ; Clough v. Hasford, C N. H. 231. 26 2 Min. Insts. 199; 2 Bl. Com. 146; 1 Th. Co. Lit. 646, 647. 27 2 Min. Insts. 199, 200; 2 Bl. Com. 146; 1 Th. Co. Lit. 648; Clark v. (293) § 342 ESTATES AT WILL TERMINATION. [Oh. 15 But, while the estate is thus terminated at once, the law is not so unjust as to deny the tenant the right to enter thereafter upon the premises within a reasonable time for the purpose of removing his effects (including emblements, when he is entitled to them).^^ It is to be observed that no formal notice, such as is demanded in the case of a tenancy from year to year, is necessary to termi- nate an estate at will. The omission of notice may often result in injustice to one or the other of the parties — an injustice which the common law attempted to obviate by entitling the tenant, on the one hand, to emblements and to a reasonable time to remove his effects without being regarded as a trespasser; and, on the oth- er, by entitling the lessor to rent up to the next rent day if the tenancy were terminated by the act of the lessee.^' These protections against injustice were, however, so inade- quate on either side to prevent the parties severally from doing a prejudice to one another, that the courts have for more than a century past inclined to lean as much as possible against construing leases to create estates at will by implication, but rather tenancies from year to year (especially where rent is reserved) for the termi- nation of which a notice to quit is necessary. But, of course, if the estate is expressly stipulated to be an estate at will, it must be so regarded.'"' Wheelock, 99 Mass. 14; McFarland v. Chase, 7 Gray (Mass.) 462; Curtis v. Galvin, 1 Allen (Mass.) 215 ; Robinson v. Deering, 56 Me. 357 ; Davis v. Broc- klebank, 9 N. H. 73. 28 2 Min. Insts. 200; 1 Wasliburn, Real Prop. 620; Doe v. McKaeg, 10 B. & Cr. 721 ; Turner v. Doe, 9 M. & W. 647 ; Ellis v. Paige, 1 Pick. (Mass.) 43 ; Rising V. Stannard, 17 Mass. 282. 29Ante, § 341; 2 Min. Insts. 200; 2 Bl. Com. 146, 147. 8 2 Min. Insts. 200; 2 Bl. Com. 147; post, § 347. (294), CHAPTER XVI. ESTATES BY SUFFERANCE. § 343. Nature of Tenancy by Sufferance. 344. Termination of Tenancy by Sufferance. 345. Landlord's Liability for Forcible Expulsion of Tenant by Sufferance. 346. Liability of Tenant by Sufferance for Rent. § 343. Nature of Tenancy by Sufferance. The so-called "estate" by sufferance arises where one comes into possession of land for a time by a lawful title, but keeps it afterwards without any title at all.i The simplest illustration of this is where one takes a lease for a year or other period, and after that period has expired continues to hold the premises without any new lease from the lessor, though a fresh lease is implied if the lessor receive rent from him ; the tenant by sufferance in such case becoming a tenant from year to year.^ But the tenancy may arise in other cases, as in case of a tenant per auter vie holding over after the death of cestui que vie,^ or a tenant at will whose estate has been terminated by the lessor's act,* or undertenants who hold after the expiration of the original lease, ^ or a grantor of land agreeing to deliver possession by a certain day and holding over." But the term "estate by sufferance" is somewhat of a misnomer, for the tenant by sufferance has no real interest in the land. He is merely not a trespasser, out of regard to the lawful estate of which he has lately been possessed,' nor is he in possession by the permis- sion or consent of his former lessor. On the contrary, his possession is tortious and wrongful, though it does not originate in tort.* 1 2 Min. Insts. 202; 1 Wasbburn, Real Prop. 648; 2 Bl. Com. 150. 2 2 Min. Insts. 202, 203 ; 2 Bl. Com. 150, notes (10), (11) ; Right v. Darby, 1 T. R. 159; Hyatt v. Griffiths, 17 Q. B. 505; Doe v. Smaridge, 7 Q. B. 957; Miller V. Shackleford, 4 Dana (Ky.) 278. 3 1 Washburn, Real Prop. 640. 4 Benedict v. Morse, 10 Mete. (Mass.) 223 ; Creech v. Crockett, 5 Cush. (Mass.) 133; Elliott v. Stone, 1 Gray (Mass.) 571; Williams v. Ladew, 171 Pa. 369, 33 Atl. 329 ; Hemphill v. Flynn. 2 Pa. 144 ; Howard v. Carpenter, 22 Md. 10. 5 Simkin v. Ashurst, 1 Cr,, M. & R. 261. 8 Hyatt V. Wood, 4 Johns. (X. X.) 150, 40 Am. Dec. 258. ^ 2 Min. Insts. 203 ; 2 Bl. Com. 150 ; Dorrell v. Johnson, 17 Pick. (Mass.) 263. 8 2 Bl. Com. 150 ; Dorrell y. Johnson, 17 Pick. (Mass.) 263 ; Russell v. Fab- yan, 34 N. H. 218. (295) § 344 ESTATES BY SUFFERANCE — TERMINATION. [Ch. 16 § 344. Termination of Tenancy by Sufferance. Since the tenant by sufferance has no real interest in the land, he can interpose no objection to a (peaceable) entry upon the premises at any time by the owner and his resumption of the possession, though it be done without giving the holdover tenant notice.' But if, instead of a peaceable entry, the landlord resort immediately to an action of ejectment or a writ of unlawful detainer, the tenant by sufferance may defend at common law upon the ground that the owner must first enter, or demand the possession, before he can sue therefor. The reason is that the law, which presumes no wrong in any man, supposes the tenant to continue in possession, prima facie at least, by as lawful a title as that under which he first took possession, un- less the owner of the land by some public and avowed act, such as an entry or a demand of the possession, declares his continuance in possession to be tortious and unlawful.^" A tenancy by sufferance is also terminated by an assignment of the premises ; the assignment passing nothing at all. The assignee, if put in possession, ig a mere trespasser, and holds, not under the owner, but adversely to him ; and if the possession be continued long enough it will ripen into a title under the statute of limitations.^^ These consequences do not attach to the possession of the tenant by sufferance himself, however long continued, for he is holding un- der the owner, and not adversely. "^^ But after the owner's entry upon the premises, or his demand of the possession, the holdover tenant then becomes a trespasser if he remain there, and his posses- sion becomes adverse. ^^ § 345. Landlord's Liability for Forcible Expulsion of Tenant by Sufferance. In the United States the statutes generally expressly provide for the recovery of land by the writ of forcible entry in cases where one, no matter how good or bad his title may be, is forcibly ejected from land by another; and this statute would un- doubtedly embrace the case of a tenant by sufferance forcibly eject- ed from the premises by the landlord, and give the tenant the right to recover the possession. But while the tenant may thus recover the possession upon a writ of forcible entry, and while the owner may even be liable crim- 9 1 Washburn, Real Prop. 631. 10 2 Mill. Insts. 203; 2 Bl. Com. T50, notes (10), (11). ul Washburn, Real I'rop. 0.54; Xepeau v. Doe, 2 M. & W. 911; Reckbow V. Schanck, 43 N. Y. 448. 12 1 Washburn, Real Prop. G.o3 ; Doe v. Hull, 2 Dowl. & R. 38; Edwards v. Hale, 9 Allen (Mass.) 4(34, 465; Colvln v. Warford, 20 Md. 396; Gwyiin v. Jones, 2 Gill & .1. (Md.) 173. 13 Butcher v. Butcher, 7 B. & Cr. 399; Curl v. Lowell, 19 Pick. (Mass.) 27. (296) Ch. 16] ESTATES BY SUFFERANCE — RENT. § 346 inally for his breach of the peace, the better opinion is that he is not liable in a civil action for trespass, nor for assault and battery, nor for injury to the occupant's goods. ^■' § 346. Liability of Tenant by Sufferance for Rent. The \-ery gist of a tenancy by sufferance is that there is no privity of contract nor of estate between the owner and the tenant, for the tenant is not in possession by contract, nor has he any estate which he can trans- fer or transmit, or which can be enlarged by release. ^° Indeed, it differs from all other tenancies in this very respect, that there is no agreement, express or implied, under which it exists. The moment the possession is held under an agreement, it becomes a tenancy at will or from year to year, and ceases to be a tenancy by sufferance.^" Hence it follows that a tenant by sufferance cannot be held liable for rent, however long continued his possession, because a liability for rent supposes that he is in possession by agreement, express or irnplied, which is inconsistent with a tenancy by sufferance. ^^ This doctrine has been altered in England by statute,^* and in some of the states of this country. But while no rent, as such, can be recovered of a tenant by suf- ferance, and no action of assumpsit for use and occupation lies against him (because he is not in by contract), the mesne profits accruing during his occupation may be recovered as damages in an action of trespass or of ejectment.^' If, however, the tenant by sufferance offers and the landlord accepts rent, the tenancy is at once converted into a tenancy from year to year.^° 1* 1 Washburn, Real Prop. 655 et seq. ; Harvey v. Brydges, 14 M. & W. 442 ; Burling v. Read, 11 Q. B. 904 ; Hyatt v. Wood, 4 Jolins. (N. Y.) 150, 4 Am. Dee. 258 ; Jackson v. Jlorse, 16 Johns, 197, 8 Am. Dec. 306 ; Jackson v. Farm- er, 9 Wend. (N. Y.) 201 ; Overdeer v. Lewis, 1 Watts & S. (Pa.) 90, 37 Am. Dec. 440 ; Johnson v. Hannahan, 1 Strob. (S. C.) 313 ; Lackey v. Holbrook, 11 Mete. (Mass.) 458 ; Sampson v. Henry, 13 Pick. (Mass.) 36 ; Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Zell v. Ream, 31 Pa. 304; Tribble v. Frame, 7 J. J. Marsh. (Ky.) 601, 23 Am. Dec. 439. But see Whlttaker v. Perry, 38 Vt. 107 ; Wilder v. House, 48 111. 280. IS 1 Washburn, Real Prop. 651. 18 1 Washburn, Real Prop. Col. 17 2 Min. Insts. 202, 203; Emmons v. Scudder, 115 Mass. 307; Ilerter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 L. R. A. 703, 70 Am. St. Rep. 517, note ; Russell V. Fabyan, 34 N. H. 223 ; Griffin v. Knisely, 75 111. 411. See Panton v. Jones, 3 Campb. 372. 18 4 Geo. II, c. 28, providing that a tenant holding over without the own- er's assent shall be liable to pay double rent. 19 1 Washburn, Real Prop. 652; Sargent v. Smith, 12 Gray (Mass.) 426; Raymond v. Andrews, 6 Gush. (Mass.) 265. 2 Post, § 347; Hall v. Myers, 43 Md. 446; Blumenberg v. Myres, 32 Gal. 93, 91 Am. Dec. 561 ; Allen v. Bartlett, 20 W. Va. 46. (297) CHAPTER XVII. ESTATES FROM TEAR TO YEAR. I 347. Origin and Nature of Estates from Year to Year. 348. Tlie Notice to Quit. 349. Waiver of the Notice. § 347. Origin and Nature of Estates from Year to Year. Be- cause of the uncertainty attendant upon the termination of estates at will and the injustice to the landlord attendant upon estates by sufferance, the courts have for more than a century past endeavored to evade these inconveniences, by construing such estates, wher- ever possible, to be tenancies from period to period; and from the circumstance that leases and rent are generally measured by yearly periods, they are usually known as estates from year to year, though in a particular case the period may be shorter, as from quar- ter to quarter, from month to month, etc.^ Every general letting, if the .lessor accepts yearly rent or rent measured by any aliquot part of a year, if not expressed to be an estate at will, is an estate from year to year. Hence, where a ten- ant for years or pur auter vie holds over, and the lessor receives rent from him, he becomes thereby a tenant from year to year, though until the payment of rent he is a tenant by sufferance. So, if the lessee of a tenant for life continues to hold after the termina- tion of his lessor's estate, and the remainderman receives rent from him, he is a tenant from year to year. So, whilst a parol lease for a term exceeding five years, or of freehold, and possession given thereunder, makes a tenancy at will until rent is paid, it then be- comes a tenancy from year to year.^ And upon like principles there may be a demise from month to month, or from week to week, or from quarter to quarter, etc., where the terms of the agreement indicate such a holding.* 1 2 Min. Insts. 200, 201 ; 1 Washburn, Real Prop. 633 et seq. 2 2 Min. Insts. 200, 201; 2 Bl. Com. 147, note (7); 1 Th. Co. Lit. 648, note (27), (Fi; 1 Washburn, Real Prop. 634: Doe v. Bell, 5 T. R. 471; Doe v. Sam- uel, 5 Esp. 173; Richardson v. Langridge, 4 Taunt 128; Harrison v. Middle- ton, n Grat. (Va.) 527, 548; Williamson y. Paxton, IS Grat. (Va.) 475, 497; Peirce v. Grice, 92 Va. 763, 767, 24 S. E. ;-!n2; Thomas v. Nelson, 69 N. Y. 118: Laughran v. Smith, 7.5 X. Y. 20.3; Shepherd v. Cummings, 1 Cold. (Tenn.) 354; Laguerenne v. Dougherty, 35 Pa. 45 ; Crommelin v. Thiess, 31 Ala. 418, 70 Am. Dec. 499. See Herter v. Mullen, 159 N. Y. 28, 53 N. E. 700, 44 U R. A. 703, 70 Am. St. Rep. 533, note. 3 2 Min. Insts. 201; 2 Bl, Com. 147, note (8); Kemp v. Derrett, 3 Campb. 511. (298) Ch. 17] ESTATES FKOM YEAK TO TEAR — NATURE. § 347 Tenancies from year to year do not, like estates at will, termi- nate upon the death of either party, or of both, nor at the mere will of either, but, once commenced, continue until terminated by the proper legal notice, even though the premises or the reversion be assigned to another.* Although indeterminate as to duration until notice is given, they belong to the class of estates for years ; the term, after notice, being regarded as for a definite period, ex- piring with the time of the notice. It therefore goes to the personal representative of the tenant upon his death. ^ Indeed, all the rights and liabilities ordinarily devolving upon a tenant for years devolve in like manner upon a tenant from year to year, save only that the tenancy does not terminate at a time certain, but only after proper notice. Thus, a tenant from year to year, like a tenant for years, has a right to the possession of the premises, in the absence of a contrary stipulation, even exclusive of the landlord himself, and may sue the latter for trespass if he enters thereon without per- mission. ° And if the tenant from year to year holds over after his estate is terminated by due notice, he is a tenant by sufferance, as a tenant for years would be in like case, until rent is paid and ac- cepted, when he again becomes a tenant from year to year, as be- fore.^ It is a general rule controlling estates from year to year that the tenant holding over under a prior lease, after becoming a tenant from year to year, continues to enjoy the benefit and to bear the burden of all the stipulations contained in the original lease, not inconsistent with the new tenancy by which he holds. ^ Thus, if the tenant has held over under a lease providing that the tenant shall make all necessary repairs, and by the payment of rent he becomes a tenant from year to year, he is presumed to have con- tinued that obligation." * 2 Jlin. Insts. 201 ; Batting v. Martin, 1 Campb. 317 ; Pleasant y. Benson, 14 East, 234. But as to tlie assignee of tlie reversion, see Hemphill t. Giles, 66 N. 0. 512. 5 2 Min. Insts. 201 ; 1 Wasbburn, Real Prop. 637 ; Doe v. Porter, 3 T. R. 13 ; Doe V. Wood, 14 M. & W. 682; Cody v. Quarterman, 12 Ga. 386; Pugsley v. Aikin, 11 N. Y. 494 ; Kitchen v. Pridgen, 48 N. C. 49, 64 Am. Dec. 593. = Moore v. Boyd, 24 Me. 242; Cunningham v. Horton, 57 Me. 422; ante, § 334. He also continues liable at common law, as a tenant for years would, for the rent though the premises burn down. Izon v. Gorton, 5 Bing. N. C. 501. 7 1 "Washburn, Real Prop. 637; Selden v. Camp, 95 Va. 527, 28 S. B. 877. 8 2 Min. Insts. 200; Peirce v. Grice, 92 Va. 763, 767, 24 S. E. 392. 8 Doe V. Amey, 12 Ad. & E. 476 ; Richardson v. Gifford, 1 Ad. & E. 52. He is not bound to make repairs in the absence of a stipulation to that effect. Gott V. Gaudy, 2 El. & B. 845. (299) ^ 347 ESTATES FEOM YEAR TO YEAR NATURE. [Ch. 17 So, if the tenant has originally come into possession under a parol lease for a term required by the statute of frauds to be creat- ed by a written instrument, which before payment of rent makes him a tenant at will and after such payment a tenant from year to year,^" he is governed by the stipulations contained in the parol lease, which are not inconsistent with his estate from year to year.^^ § 348. The Notice to Quit. Notice that the tenant must or will quit the premises is the method adopted by the law — and the sole method — of terminating a tenancy from year to year. This notice constitutes the all-sufficient device to prevent injustice to either party by the sudden termination of the estate.^^ At common law, if the tenancy be strictly one from year to year, the period of notice is six calendar months, expiring always at the end of some current year of the tenancy; that is, the notice must be given at least six months before the end of some current year. Such notice is sufficient, at common law, if it be by parol, unless stipulated otherwise; but it is always advisable to give it in writ- ing. And if there be any doubt as to the time when the year ends, it is prudent to give the notice to take effect "at the expiration of the current year of the tenancy, which shall expire next after the end of one-half year from the service of the notice." ^^ The notice should be served, at common law, on the landlord's own tenant, and not on a sublessee of the tenant, and it may be served either personally or upon a servant or other responsible person at the dwelling house of the tenant. If merely left on the premises, it is not sufficient, unless it appear that it came to the tenant's hands. ^* 10 Ante, § 320. 112 Mill. Insts. 201; Doe v. Bell, 5 T. R. 471; Ciu-rier v. Barker, 2 Gray (Mass.) 224; Hollls v. Pool. 3 Mete, (ilass.) 350; Schuyler v. Leggett, 2 Cow. (N. Y.) 660; Barlow v. Wainwright, 22 Vt. 88, 52 Am. Dec. 79. 12 2 Min. liists. 201; 2 Bl. Com. 147, note (7) ; 1 Washburn, Real Prop. 638. See 2 Taylor, Landl. & Ten. § 466 et seq. The only exception seems to be where the tenancy originates as an estate at will by implication under a parol lease, conveyance or contj-act. In such case, it seems, the tenancy from year to year may terminate without notice at the end of the term named In the parol lease. 2 Taylor, Landl. & Ten. § 469 ; 1 Tiffany, Real Prop. § 59 ; Doe V. Browne, 8 East, 165; Tress v. Savage, 4 El. & B. 36; Thurbee v. Dwyer, 10 R. I. 355; Garrett v. Clark, 5 Or. 464; Morehead v. Watkyns, 5 B. Hon. (Ky.) 228; Barlow v. Walnwright, 22 Vt. 88, 52 Am. Dec. 79. 13 2 Min. Insts. 201'; 2 Bl. Com. 147, note (8) ; 1 Th. Co. Lit. 648, note (F) ; 1 Washburn, Real Prop. 639. The notice must also be direct and positive, not in the alternative, as to quit or pay the rent, etc., nor conditional. 1 Wash- burn, Real Prop. 640; Baltimore Dental Ass'n v. Fuller, 101 Va. 627, 44 S. B. 771. 1* 1 Washburn, Real Prop. 642. But, even though the notice be insufficient for any reason, the party to whom it is given may, by his conduct, be estopped (300), Ch. 17] ESTATES PROM YEAR TO YEAR WAIVER OF NOTICE. § 34!) In case of a tenancy from quarter to quarter, month to month, etc., the common-law period of notice is inapplicable, but the prin- ciple is the same and there must still be notice to quit; the period of the notice being in general measured by the length of the term, as a quarter's notice for tenancies from quarter to quarter, a month's notice for tenancies from month to month, etc.'^' § 349. Waiver of Notice. Where notice to quit has been giv- en, it may be v^^aived by the party giving the notice, in which case the situation will remain as if no notice had ever been given. Such waiver may be either express or implied. On the lessor's part, it may be implied (1) from a subsequent acceptance of rent from the tenant, or (2) a distress or action instituted by him for rent accruing subsequently to the expiration of the notice, or (3) from the subse- quent giving of a new notice to take effect at a later period than the first. On the lessee's part, notice to quit given by him may be waived (1) by paying rent subsequently accrued, or (2) by giving a new notice.^* But the acceptance by the lessor, after notice, of rent due at the time of notice, does not alter the effect of the notice given. ^'^ Xor, it is said, is the mere demand by the lessor of rent accruing after the expiration of the notice of itself a waiver of the notice. ^^ to deny Its sufllciency. See Baltimore Dental Ass'n v. Fuller, 101 Va. 627, 44 S. E. 771. IB 1 Washburn, Real Prop. 643; 1 Taylor, Landl. & Ten. § 57; Right v. Dar- by, 1 T. R. 159; Doe v. Hazell, 1 Bsp. 94; Sanford v. Harvey, 11 Cush. (Mass.) 93; People v. Darling, 47 N. Y. 666; Anderson v. Prindle, 23 Wend. (N. Y.) 616; Hollis v. Burns, 100 Pa. 206, 45 Am. Rep. 379; Jones v. Willis, 53 N. C. 430; Steffens v. Earl, 40 N. J. Law, 128, 29 Am. Rep. 214 ; Coomler v. Hefner, S6 Ind. 108; McDevitt v. Lambert, 80 Ala. 536, 2 South. 438. 16 2 Min. Insts. 202; 1 Washburn, Real Prop. 638; 1 Th. Co. Lit. 650, note (F) ; Goodright v. Oordwent, 6 T. R. 219 ; Zouch v. Willingale, 1 H. Bl. 311 ; Doe V. Palmer, 16 East, 53 ; Collins v. Canty, 6 Cush. (Mass.) 415 ; HofE v. Baum, 21 Cal. 120. " Kimball v. Rowland, 6 Gray (Mass.) 224. 18 1 Washburn, Real Prop. 639 ; Blyth v. Dennett, 13 C. B. 178. (301) CHAPTEfl XVIII. LANDLOED AND TENANT. § 350. Landlord's Obligations to Strangers. 351. Tenant's Obligations to Strangers — Discussion Outlined. 352. 1. Third Person Injured Not upon the Leased Premises. 353. 2. Third Person upon the Premises by Invitation or License. 3.54. 3. Third Person a Trespasser or Intruder on the Premises. 355. The Mutual Obligations of Landlord and Tenant Toward One An- other — I. Landlord's Duty to Furnish Habitable Premises. 356. 11. Duty of Making Repairs. 357. III. Tenant's Estoppel to Deny Landlord's Title. 3.58. IV. Landlord's Duty to Protect Tenant in His Possession. 359. V. Reservation of Rent — 1. Mode of Reserving Rent. 360. 2. Persons to Whom Rent May be Reserved Payable. 361. 3. Assignment of Rents and of Remedies Therefor. 362. 4. Place and Time for the Payment of Rent. 363. 5. Persons Entitled to Rent Not in Arrear. 364. 6. Persons Entitled to Rent in Arrear. 365. 7. Apportionment of Rent. A. In Point of Time. 366. B. In Point of Amount. 367. VI. The Usual Covenants Contained in Leases — Discussion Out- lined. 368. 1. Covenants of Title. 369. 2. Covenant for Rent. 370. 3. Covenant to Repair. 371. 4. Covenant Not to Assign without Leave. 372. 5. Covenant That Lessor may Re-enter for Default in Pay- ment of Rent or for Breach of Any Covenant in the Lease. 373. VII. Landlord's Duty Not to Evict Tenant. 374. VIII. Assignment and Sublease of the Premises. 375. IX. Covenants Running with the Land. 376. Privity of Estate Necessary to Covenants Running with the Land. 377. Duration of Benefits and Burdens of Covenants. 378. X. Covenants Running with the Reversion. § 350. Landlord's Obligations to Strangers. So far as third parties are concerned, the obligations of both landlord and tenant towards them arise in the main either from negligence or from the maintenance of a nuisance on the leased premises. As a general rule, the landlord is not responsible to strangers for the negligent use of the premises while in the possession of the tenant.^ 1 1 Taylor, Landl. & Ten. § 175; Cheetham v. Hampson, 4 T. R. 318; Eakin v. Brown, 1 E. D. Smith (N. Y.) 36 ; City of New York v. Corlies, 2 Sandf. Ch. (302) Ch. 18] LANDLORD AND TENANT — DUTIES TO STRANGERS. § 350 But if, at the time of the lease, there exists a nuisance upon the premises, even though it only becomes active and deleterious by the tenant's ordinary use and occupation of the premises, the land- lord is liable to any person injured thereby, the lessee being appar- ently regarded as the lessor's agent.^ Thus the owner of a mill was made liable for injuries to one whose horse was frightened by the sails of the mill, though it was at the time being operated by a ten- ant.' And in another case the landlord was held liable for the ten- ant's act in polluting a water course by discharging sink water therein, the leased building being adapted to be used in that way.^ Of course, the tenant in such cases might be liable also. In other cases the sole responsibility may rest upon the landlord, as where injuries result to a third party from the faulty or defective construction of a leased building,^ or from its ruinous condition at the time of the demise.^ And even though there be no defect at the time of the lease, if the landlord still holds, or should resume during the term, control of the premises in respect to the matter that has caused the injury, he is liable for injuries to third persons resulting therefrom.' Thus, where an elevator upon leased premises (run by the lessee's servant) was to be kept in repair exclusively by the (N. Y.) 301; Shindelbeck v. Moon, 32 Ohio St. 264, 80 Am. Rep. oS4; Cleve- land Co-operative Stove Co. v. Wheeler, 14 111. App. 112. 2 Jackman v. Arlington Mills, 137 Mass. 277; Fish v. Dodge, 4 Denio (N. Y.) 311, 47 Am. Dec. 254 ; House v. Metcalf, 27 Conn. 631 ; Owings v. Jones, 9 Md. 108. 3 House V. Metcalf, 27 Conn. 631. * Jackman v. Arlington Mills, 137 Mass. 277. 5 King V. Pedley, 1 Ad. & E. 827; Learoyd v. Godfrey, 138 Mass. 315; Larue v. Farren Hotel Co., 116 Mass. 67; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Scott v. Simons, 54 N. H. 426. See Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659. 8 Todd v. Flight, 9 C. B. (N. S.) 377 ; Nelson v. Brewery Co., L. R. 2 C. P. Div. 311; City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep. 083; Mar- shall V. Heard, 59 Tex. 266. So, if the landlord knowingly demises the prem- ises for a purpose for which they are unfit, he may he liable to strangers for injuries resulting from such use by the tenant. Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Owings v. Jones, 9 Md. 108; Carson v. Godley, 26 Pa. Ill, 67 Am. Dec. 404; Helwig v. Jordan, 53 Ind. 21, 21 Am. Rep. 189. Upon the same principle one who erects a building on his premises for purposes of public exhibitions, such as a theatre, and leases the same, is yet liable to third persons for injuries resulting from his negligence in not exercising due care in its erection and in not insuring that it is reasonably fit for the pur- pose. Francis v. Cockrell, L. R. 5 Q. B. 501. See\ Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659. ■: Leslie v. Pound, 4 Taunt. 649 ; Coupe v. Piatt, 172 Mass. 458, 52 N. E. 526, 70 Am. St. Rep. 293 ; Cannavan v. Conklin, 1 Daly (N. Y.) 509 ; Sawyer V. McGillicuddy, 81 Me. 318, 17 Atl. 124, 3 L. R. A. 458, 10 Am. St. Rep. 260; Sinton v. Butler, 40 Ohio St. 158. (303) § 351 LANDLORD AND TENANT DUTIES TO STRANGERS. [Ch. IS lessor, it was held that the lessor, not the lessee, was responsible for an injury to a third person resulting from a defect that should have been repaired.^ So, if the lessor is under covenant to repair, and the injury to a third person has arisen from this want of repair, though the tenant is liable in the first instance, the landlord may be directly sued by the party injured in order to avoid circuity of action.' § 351. Tenant's Obligations to Strangers — Discussion Outlined. The tenant's obligations to third persons spring in general from his duty to keep the premises in repair and so to use the property in his possession as not to cause injury to others.^" If it be in the tenant's power legally to have remedied the defect or cause of the injury, it is in no case a defense to an action against the tenant that the defect or cause of the injury should under the contract have been remedied by the lessor.^^ Under this head, three cases may arise: (1) Where the third person injured is not upon the premises at all, as a passer-by upon the street; (3) where he is upon the premises by invitation or li- cense; and (3) where he is a trespasser or intruder. § 352. Same — 1. Third Person Injured Not upon the Leased Premises. The tenant is liable to third persons, even though they be not on the leased premises at all, for injuries resulting to them from the careless and negligent use or management of the leased property. Thus, if a passer-by is injured by the tenant's failure to keep the area in front of his house fenced properly, or the cellar doors opening upon the street sufficiently closed, the tenant is liable for injuries resulting from his negligence.^^ And so, if he directs 8 Sinton v. Butler, 40 Ohio St. 158. aRegiua v. Watts, 1 Salk. 357; Russell v. Shenton, 3 Q. B. 449; Nelson v. Brewery Co., L. R. 2 O. P. Div. 311; Payne v. Rogers, 2 H. Bl. 050; Gill v. -Aliddleton, 105 Mass. 477, 7 Am. Rep. 548 ; Inhabitants of Milford v. Holbrook, 9 Allen (Mass.) 17, 85 Am. Dec. 735 ; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 41^2 ; Glickauf v. Maurer, 75 111. 289, 20 Am. Rep. 238. But see Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594; Clyne v. Helmes, 61 N. J. Law, 358, 39 Atl. 767; Burdlck v. Cheadle, 26 Ohio St. :'.!)3. 20 Am. Rep. 767. But these responsibilities do not extend necessarily ti) suc-h persons as are upon the premises unlawfully or contrary to order. See Roulston v. Clark, 3 E. D. Smith (N. Y.) ;:!6G; Daley v. Xorwich & W. R. Co., 2(1 Conn. 591, 68 Am. Dec. 413 ; Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. .540 ; ■ Lafayette & I. R. Co. v. Adams, 20 Ind. 370 ; Zoebiseh v. Tarbell. 10 Allen (Mass.) 385, 87 Am. Dec. 660. 10 1 Taylor, Landl. & Ten. § 192. The lawfulness of the possession is Im- material. Feital v. Middlesex Ry. Co., 109 Mass. 398, 12 Am. Rep. 720. 11 Caldwell v. Slade, 156 Mass. 84. 30 N. E. 87 ; Hussey v. Ryan, 64 Md. 426, 2 Atl. 729, 54 Am. Rep. 772 ; Rosenfield v. Arrol, 44 Minn. 395, 46 N. W. 768, 20 Am. St. Rep. 584; Fisher v. Thirkell, 21 Mich. 1, 4 Am. Rep. 422. 12 1 Taylor, Landl. & Ten. § 192. ' ("04) Ch. 18] LANDLORD AND TENANT HABITABLE PREMISES. § 355 his servant to remove snow or ice from the roof, who negligently throws the same down into the street, injuring a passer-by,^' or if he maintains a nuisance upon the premises, such as a sink or cess- pool, from which polluted water filters upon his neighbor's land, in- juring a cellar or a well, or causing ill health.^* § 353. Same — 2. Third Person upon the iremises by Invitation or License. If a third person is upon the premises by the invitation of the tenant, express or implied, or by his permission or license, the tenant is bound to exercise reasonable care to prevent damage to such person arising from any defect in the construction of the building which he knows of, or has reason to apprehend. ^° But he is not liable for injuries which ordinary precautions on the part of the stranger might have prevented. Thus, where the plaintiff, for want of a light, fell down an ordinary stairway in a dark passage, and was injured, it was held he could not recover, though the ten- ant's servant had directed him to go where he did.^* § 354. Same — 3. Third Person a Trespasser or Intruder on the Premises. A tenant is in general under no obligation to make or keep the premises in safe condition, so far as concerns strangers who are willfully or negligently trespassing or intruding thereon with- out permission. In such cases, even though the tenant be negli- gent, he is not generally liable,'^' imless the negligence be so gross as to imply a wanton disregard of consequences or a malicious de- sign to injure.^* § 355. The Mutual Obligations of Landlord and Tenant Toward One Another — I. Landlord's Duty to Furnish Habitable Premises. A lessee of land is a quasi purchaser, and as such is bound to inspect the property before leasing it. He is subject to the principle of caveat emptor. The law implies no warranty on the part of the lessor as to the condition of the premises, and the lessee cannot complain that they were not, at the commencement of the tenancy, in a habitable condition, or were not adapted to the tenant's pur- poses.^" i3Althorf V. Wolfe, 22 N. T. 366. 1* Ball V. Nye, 99 Mass. 582, 97 Am. Dec. 56. isCarleton v. Frauconia Iron & Steel Co., 99 Mass. 216; Philadelphia, W. & B. R. Co. V. Kerr, 25 >Id. 521. 16 Wilkinson v. Farrie, 1 Hurlst. & C. 633. 17 1 Taylor, Landl. & Ten. § 194; Roulston v. Clark, 3 E. D. Smith (N. Y.) 366. But see Daley v. Xorwlch & W. R. Co., 26 Conn. 591, 68 Am. Dec. 413. 18 Lafayette & I. R. Co. v. Adams, 26 Ind. 76. 19 Doyle V. Union Pac. R. Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. Ed. 223; Bowe V. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Franklin v. Brown, 118 N. y. 110, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744; Clifton v. Montague, Minor & W.Real Prop.— 20 (305) § 355 LANDLORD AND TENANT — HABITABLE PREMISES. [Ch. 18 But the principle of caveat emptor applies only to those defects which might be discovered by the tenant upon inspection. It does not extend to cases where the premises contain concealed defects of construction, or are infected with contagious or infectious disease, which, though known to the landlord, were unknown to the tenant and not discoverable by inspection.^" § 356. II. Duty of Making Repairs. It is an obvious duty of the tenant, in the absence of contrary stipulation, to return the premises to the landlord at the end of his term in substantially the same condition as when they were received by him, excepting only the deterioration naturally resulting from lapse of time and ordinary wear and tear, because such damage would occur whether the prem- ises were in the possession of the landlord or the tenant, and cannot be justly ascribed to the latter, and he is not to be held liable there- for." But if the premises are injured by the tenant's own voluntary acts or by his negligence such injury is denominated waste, and he must repair the damage or be liable therefor.^^ Furthermore, though the injury be not primarily the result of his own act or negligence, as where the roof is blown off by a tempest (an act of God), or a room 40 W. Va. 207, 21 S. E. 858, 52 Am. St. Rep. 872, 33 L. R. A. 449; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Maywood v. Logan, 78 Mich. 135, 43 N. W. 1052, 18 Am. St. Rep. 431. In England, however, there seems to be an exception made in the case of a lease of a furnished house, on the ground that a warranty is there implied that the house is fit for Immediate habitation. Smith V. Marrable, 11 M. & W. 5; Wilson v. Hatton, 2 Bxch. Div. 336. And the same exception has been recognized in Massachusetts. Ingalls v. Hobbs, 156 Mass. 348, 31 N. E. 286, 16 L. R. A. 51, 32 Am. St. Rep. 460. But it lias been generally repudiated in this country. See Murray v. Albertson, 50 X. J. Law, 167, 13 Atl. 394, 7 Am. St. Rep. 787; Fisher v. Lighthall, 4 Mackey (D. C.) 82, 54 Am. Rep. 258; Daly v. Wise, 132 N. Y. 306, 30 N. E. 837, 16 L. R. A. 236; Franklin v. Brown, 118 N. Y. 110, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744. 2 Doyle v. Union Tac. R. Co., 147 U. S. 413, 13 Sup. Ot. 333, 37 L. Ed. 223; Cowen V. Sunderland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. Rep. 469; Daly V. Wise, 132 N. Y. .306, 30 X. E. 837, 16 L. R. A. 236 ; Maywood v. Logan, 78 Mich. 135, 43 N. W. 1052, 18 Am. St. Rep. 431 ; Anderson v. Hays, 101 Wis. 538, 77 N. W. 891, 70 Am. St. Rep. 930, note; Hamilton v. Feary, 8 Ind. App. 615, 35 N. E. 48, 52 Am. St. Rep. 485. Indeed, some of the authorities indicate that the landlord may be held liable for injuries to the tenant resulting from concealed defects of which the landlord has no knowledge, if by due diligence he might have discovered them. W^illcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 41 L. R. A. 278, 66 Am. St. Rep. 770, note; Albert v. State, 66 JId. 325, 7 Atl. 697, 59 Am. Rep. 159. 21 1 Taylor, Landl. & Ten. § 343; United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65. 22 Post, § 380 et seq. (306) Oh. 18] LANDLORD AND TENANT — ESTOPPEL TO DENY TITLE. § 357 is flooded by the bursting of a pipe, he is bound as speedily as pos- sible so to repair the roof or the pipe — temporarily, at least — as to prevent further damage, or else he is responsible for such further damage, as for permissive waste. ^^ But he is not, in such case, in the absence of agreement, bound to restore things to their original con- dition, nor to substitute new structures for old, his only obligation being to prevent further damage.^* Except by virtue of this lia- bility for waste, the tenant is not otherwise required to repair in the absence of covenant or agreement to that effect. And the landlord, in the absence of covenant, is never bound to keep the leased premises in repair, since in contemplation of law the tenant has purchased the premises from the landlord for the period during the tenancy.^ ^ § 357. III. Tenant's Estoppel to Deny Landlord's Title. Few principles in the law of landlord and tenant are more firmly estab- lished than that a lessee put in possession of land by his lessor shall not, so long as he retains possession under the lease, be permitted to deny that the lessor had title to the premises at the time he made the lease in any action brought against him by the lessor to recover possession of the premises or to recover the rent reserved in the lease. ^° By the original common law such an estoppel arose only where the lease was by deed indented (that is, under the seal of the lessee as well as of the lessor). It was effective only against the lessee 23 Suydam v. Jackson, 54 N. Y. 450; Townshend v. Moore, 33 N. J. Law, 284 ; Hitner v. Ege, 23 Pa. 305. 2* United States v. Bostwick, 94 tJ. S. 53, 24 L. Ed. 65; Smith v. Kerr, 108 N. Y. 31, 15 N. E. 70, 2 Am. St. Rep. 362; Jolinson v. Dixon, 1 Daly, (N. Y.) 178 ; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923; I^ong v. Fitzsimmons, 1 Watts & S. (Pa.) 530. For his liability under an express covenant to repair, see post, § 370. 25 2 Min. Insts. 193; Viterbo v. Friedlander, 120 U. S. 707, 7 Sup. Ct. 962, 30 L. Ed. 776 ; Foster v. Peyser, 9 Cush. (Mass.) 242, 57 Am. Dec. 43 ; Witty V. Matthews, 52 N. Y. 512; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Ward V. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 651 ; Petz v. Voigt Brewery Co., 116 Mich. 418, 74 N. W. G.jI, 72 Am. St. Rep. 531. But though the landlord be not bound to repair, yet if he voluntarily undertakes to do so, and does the work so negligently that the tenant is thereby damaged, the latter may hold the landlord responsible. Riley v. Liss- ner, 160 Mass. 330, 35 N. E. 1130 ; Gregor v. Cady, 82 Jle. 131, 19 Atl. 108, 17 Am. St. Rep. 466. 2 6 2 Min. Insts. 763; 2 Taylor, Landl. & Ten. § 705; Emerick v. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217; Turpin v. Saunders, 32 Grat. (Va.) 27; Mer- ryman v. Bourne, 9 Wall. 599, 19 L. Ed. 683; Bailey v. Kllburn, 10 Mete. (Mass.) 176, 43 Am. Dec. 423; Tillotson v. Doe ex dem. Kennedy, 5 Ala. 407, 39 Am. Dec. 830. (307) § 357 LANDLORD AND TENANT ESTOPPEL TO DENT TITLE. [Oh. 18 himself, and lasted during the term named in the lease, and was ap- plicable, even though the tenant has not occupied the premises, for "by the making of the lease the estoppel dOth grow."'^^ But in modern times the estoppel has been extended so as to em- brace estoppel in pais as well as estoppel by deed, and is therefore no longer confined to cases where the lease is by deed indented. It is based upon a very sensible and often applied principle of reason and honesty, that one shall not be permitted, in general, to deny, when he wishes to avoid a liability, a fact which he has previously admitted by words or conduct in order to obtain a benefit. Thus, one who has hired a horse of A. and has obtained the advantage he thereby sought, cannot say, when called upon to pay the hire or to return the horse, that it is not A.'s horse. Such denials savor for the most part of bad faith, and, as between landlord and tenant especial- ly, are generally recognized as inadmissible. The doctrine extends in like manner to persons claiming under either party, as a privy in estate or by contract, such as the heir, personal representative, as- signee or subtenant.-* This estoppel in pais is based upon the tenant's possession by per- mission of the landlord, and is entirely independent of the instru- ment of lease or the duration of the term.^" TJiis fact, that the es- toppel is based upon the permissive possession of the tenant, is the chief key to the problems that present themselves in this connec- tion. The estoppel continues only so long as this permissive posses- sion continues. Hence the tenant may at any time, upon a surren- der of his possession to the landlord, deny the landlord's title from that moment, but he cannot do so as long as he retains such pos- session, even though the time designated in the lease has expired,^* or though the lease itself be invalid for some reason. ^^ But after a surrender of his possession to the landlord the tenant may set up against him a paramount title acquired by him while 27 2 Min. Insts. 764; 2 Th. Co. Lit. 410, 415, 416, note (M), 417; Com. Dig. Estoppel (A, 2), (A, 3). See Lamson v. Cku-lisou, 113 Mass. 348, 18 Am. Rep. 498. 28 2 Min. Insts. 763; Emerick v. Tavener, 9 Grat. (Va.) 220, 58 Am. Dec. 217; Blalie v. Sanderson, 1 Gray (Mass.) 332; WoodrufE v. Erie R. Co., 93 X. T. 609 ; Bergman v. Roberts, 61 Pa. 497 ; Blantin v. Wliitalier, 11 Humph. (Tenn.) 313. 2 9 1 Taylor, Landl. & Ten. § 89 ; Vernam v. Smith, 15 N. Y. 327. See 1 Tlf- Cany, Real Prop. § 50 ; 6 Am. Law Rev. 1, 19. soHilbourn v. Fogg, 99 Mass. 11; Vernam v. Smith, 15 N. Y. 327; Rogers V. Boynton, 57 Ala. 501. The fact that the tenant is in possession already when the lease is made is immaterial. Locke v. .Frasher, 79 Va. 413; Emerick V. Tavener, 9 Grat. (Va.) 223, 224, 58 Am. Dec. 217. 31 Ripley v. Cross, 111 Mass. 41; Crawford v. Jones, 54 Ala. 459. (308) Ch. 18] LANDLORD AND TENANT PROTECTION OP POSSESSION. § 358 tenant.'^ And if the tenant be evicted by title paramount, either actually or constructively, the basis of the estoppel, namely, the tenant's possession by permission of the landlord, is swept away, and he may set up such paramount title in another as against his lessor.^' It is also to be noted that the title which the tenant is estopped to dispute is that possessed by the landlord at the commencement of the term. Hence he may show that the landlord's title has expired since the beginning of the term, either by its own limitation or by the lessor's transfer thereof, *** or that it has been adjudged invalid, or has been disposed of at a judicial sale.^° Upon the same principle, if one in possession of land is induced by fraud or mistake arising out of misrepresentations to believe that another has a better title and therefore takes a lease from him, the former is not estopped to defend against the recovery of the land by the latter by setting up the mistake and showing he himself has the better title.^^ § 358. IV. Landlord's Duty to Protect Tenant in His Posses- sion. While on the one hand, as has just been pointed out, the ten- ant is estopped to deny the landlord's title, it is on the other hand equally the landlord's duty to defend and maintain the tenant's right to the possession of the land leased.^' To this end the law implies a covenant on the lessor's part, merely from the relation of landlord and tenant and independently of the form of the lesse, whether writ- ten or oral, or of the words in which it is expressed, to the effect 32 2 Mill. lusts. 7G4; 1 Tiffany, Real Prop. § 50; Gable v. Wetlierholt, 116 111. 313, 6 N. E. 453, 56 Am. Rep. 7T4; Bank of Utica v. Mersereau, 3 Barli. Ch. (N. Y.) 528, 49 Am. Dec. 189. 33 2 Min. Insts. 763; George v. Putney, 4 Cusli. (Mass.) 351, 50 Am. Dec. 788; Chambers v. Pleak, 6 Dana (Ky.) 426, 32 Am. Dec. 78. 34 2 Min. Insts. 763; Lamson v. ClarUson, 113 Mass. 348, 18 Am. Rep. 498; Hilbourn v. Fogg, 99 Mass. 11 ; Jackson v. Rowland, 6 Wend. (N. Y.) 666, 22 Am. Dec. 557 ; Smith v. Mnndy, 18 Ala. 182, 52 Am. Dec. 221. SB Elliott V. Smith, 23 Pa. 131; Hodges v. Shields, 18 B. Mon. (Ky.) 828; Lancashire v. Mason, 75 N. 0. 455. And this, even though the tenant him- self be the purchaser. Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Ami Dec. 285; Jackson v. Rowland, 6 Wend. (X. Y.) 666, 22 Am. Dec. 557; Casey v. Gregory, 13 B. Mon. (Ky.) 505, 56 Am. Dec. 581 ; Bettison v. Budd, 17 Ark. 546, 65 Am. Dec. 442 ; McPherson v. McPherson, 33 N. C. 391, 53 Am. Dec. 416. 38 2 Min. Insts. 763; Locke v. Frasher, 79 Va. 409; Ingraham v. Balclwin, 9 N. Y. 45 ; Evans v. Bidwell, 76 Pa. 497 ; Williams v. Wait, 2 S. D. 210, 49 N. W. 209, 39 Am. St. Rep. 768. In the absence of such fraud or mistake it Is otherwise. Lucas v. Brooks, 18 Wall. 436, 21 L. Ed. 779; Williams v. Waltr supra ; Prevot v. Lawrence, 51 N. Y. 219 ; Cobb v. Arnold, 8 Mete. (Mass.) 398 ; Locke V. Frasher, supra. 8T 2 Min. Insts. 759. (309) § 358 LANDLORD AND TENANT PROTECTION OP POSSESSION. [Ch. 18 that the lessee shall have quiet enjoyment of the premises during his term.^* But this covenant does not protect the tenant against any acts (short of eviction under paramount title) of a stranger, trespasser or wrongdoer acting without authority from the landlord, but only against the wrongful acts of the lessor himself or the acts of those claiming under a paramount title. ^' To constitute a breach there- of, the lessee must have been evicted, either actually or construc- tively, by the lessor or those claiming under him, or by some person having paramount title.*" As to the measure of damages upon an action for a breach of the covenant, the courts are divided. In some states (by analogy to the measure of damages in actions for a breach of the covenant for quiet enjoyment often found in conveyances in fee simple, where the damages are in general limited to the purchase money paid by the grantee, with interest)*^ it is held, in the absence of fraud or fault on the lessor's part, that merely nominal damages may be re- covered by the lessee, together with such mesne profits as the lessee has been compelled to pay the true owner, upon the theory that the tenant's release from the further payment of rent is a sufficient re- imbursement for his loss of the term.*^ But in England, and in some of the states of this country, the damages are to be measured by the value of the lease at the time of the eviction. *** ssRawle, Gov. § 274; Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082; Mack V. Patchin, 42 N. Y. 167, 1 Am. Rep. 506 ; Avery v. Dougherty, 102 Ind. 443, 2 N. B. 123, 52 Am. Eep. 680 ; Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279. Furthermore, a covenant of title (that the lessor has lawful power to make the lease) is implied in case of written leases from the words "demise," "let," or "lease" employed in the instrument. Rawle, Gov. §§ 270, 272. But it seems this latter covenant cannot be implied in an oral lease. Rawle, Gov. § 274; Vernam v. Smith, 15 N. Y. 327; Gano v. Vanderveer, 34 N. J. Law, 293. 3!> Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Gardner v. Ket- eltas, 3 Hill (N. Y.) 330, 38 Am. Dec. 637; Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Surget v. Arighi, 11 Smedes & M. (Miss.) 87, 49 Am. Dec. 46. *o Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170; Moore v. Frankenfield, 25 Minn. 540; McAles- ter v. Landers, 70 Gal. 79, 11 Pac. 505. *i Post, § 914. 43 1 Taylor, Landl. & Ten. § 317; Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 797 ; Kelly v. Dutch Ghurch of Schenectady, 2 Hill (X. Y.) 116 ; Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506. 43 Lock V. Furze, L. R. 1 C. P. 441 ; Newbrough v. Walker, 8 Grat. (Va.) 16, 56 Am. Dec. 127; Dexter v. Manley, 4 Gush. (Mass.) 14; Snodgrass v. Rey- nolds, 79 Ala. 452, 58 Am. Eep. 601 ; Clarkson v. Skidmore, 46 N. Y. 297 ; Dob- bins V. Duquid, 65 111. 464. (310) Ch. 18] LANDLORD AND TENANT EENT PAYABLE TO WHOM. § 360 § 359. V. Reservation of Rent — 1. Mode of Reserving Rent. It is not essential to the validity of a lease that there should be any stipulation for the payment of rent, for a lease is an executed con- tract and, as between the parties, needs no valuable consideration to support it.** Nor, if rent is reserved, are any particular words nec- essary for the purpose, though such words as "reserving," "render- ing," "returning," "yielding," or "paying" are usual and proper tech- nical terms to indicate that intention ; but other words showing the intent will suffice.*^ Where several distinct premises are leased by one instrument, but the reservation is of one entire rent, the landlord may distrein on either of the premises for the whole rent, or in a proper case may re-enter upon either. But if the reservation be in the first instance several, and not entire, it is otherwise. Thus, a lease of three houses, reserving $500 as rent, to wit, for one house $300, for anoth- er $150, and for the third $50, is an instance of an entire reservation, enabling the lessor to distrein upon any one of the houses for the whole $500 rent; but a lease of three houses, reserving $300 for the first, $150 for the second, and $50 for the third, is a several reserva- tion, wherein the lessor can only distrein or re-enter upon the prem- ises severally for the respective rents.** If the lease is executed by several persons as lessors, having sev- eral titles, although the reservation is by joint words, yet from the nature of the titles it must be understood as a several reservation, upon which they must distrein or re-enter severally. Thus, if two tenants in common make a lease, reserving rent, the reservation, though made by joint words, shall follow the nature of the reversion in the lessors which is several. In the case of joint tenants it would be otherwise.*^ § 360. Same — 2. Persons to Whom Rent may be Reserved Pay- able. It is an inflexible rule of the law that the rent stipulated for in the lease must be reserved therein payable to none other than the lessor or his heirs (or if the lessor himself has only an estate for years, the lessor or his personal representative). It may never be reserved payable to a third person, because if reserved to a stranger it would not be a return for the land that passes by the lease, as the *i Hooton V. Holt, 139 Mass. 54, 29 N. B. 221; Hunt t. Comstock, 15 Wend. (N. Y.) 665 ; post, § 936. 4 5 2 Min. Insts. 48; Bac. Abr. Rents (D) ; Gilbert, Rents, 30, 32, et seq. 46 2 Min. Insts. 48; Gilbert, Rents, 34 et seq. See Wiclcham & Northrop v, Richmond Standard Steel, Spike & Iron Co., 107 Va. 44, 57 S. E. 647; 11 L. R. A. (N. S.) 836. *^ 2 Min. Insts. 48; Gilbert, Rents, 37; Bac. Abr. Rents (E). (311) § 361 LANDLORD AND TENANT ASSIGNMENT OF RENT. [Ch. 18 definition of a rent reserved demands ; and also in order to avoid the danger of maintenance.*^ § 361. Same — 3. Assignment of Rents and of the Remedies Therefor. As just observed, a rent cannot be originally reserved in the lease payable to a stranger to the title. But once properly re- served to the lessor and his heirs, or to the lessor and his personal representative, as the case may be, it is susceptible of being assigned by him to a stranger, though this could not be done at common law by a direct assignment of the rent itself, leaving the reversion still in the lessor, for the same reason that induced the common law to prohibit the assignment of choses in action and rights of entry or action in lands, namely, the danger of maintenance.'" But even at common law it was a well-established principle that "the rent follows the reversion," and hence, if the lessor assigns the reversion to a stranger, the rent prima facie passes as incident there- to ; ^^ and such stranger assignee of the reversion may recover the rent at common law by distress or by action of debt, but he cannot at common law have the benefit of any right of entry for breach of a condition to pay the rent, or any other condition in the lease, nor a right to maintain an action upon a covenant to pay rent or any oth- er covenant in the lease. ^^ These latter privileges were conferred upon the assignee of the reversion by the statute 33 Hen. VIII, c. 34. That statute, which was occasioned by the dissolution of the monasteries and the em- barrassments in which the new grantees of the monastery rever- sions, as well as the tenants of the monastery lands, found them- selves involved, gave mutual redress in all cases of landlord and tenant where the landlord has assigned his reversion, in respect to other matters as well as to rent, giving to the owner of the reversion and his assignees on the one side and to the tenant of the land and his assignees on the other a mutual right to take advantage of all conditions and covenants in the lease by re-entry or action.'* § 362. Same — L Place and Time for the Payment of Rent. If the place of payment of the rent is designated in the lease, it must 18 Ante, § 77; 2 Min. Insts. 49; Bac. Abr. Rents (G); Gilbert, Rents, 54; Gates V. Fi-ith, Hob. 130a ; Bge v. Ege, 5 Watts (Pa.) 138; Ryerson v. Quack- enbusb, 26 N. J. Law, 236. 4 8 2 Min. Insts. 640, 641, 839. 5 2 Min. Insts. 49; Walker's Case, 3 Co. 22 ; Butt v. Ellett, 19 Wall. 544, 22 L. Ed. 183; Steed v. Hinson, 76 Ala. 298; Dixon v. Niccolls, 39 111. 372, 89 Am. Dec. 312. 51 2 Min. Insts. 49. 62 2 Min. Insts. 49, 50; 2 Th. Co. Lit. 84, 88, note (M, 2); Spencer's Case, 5 Co. 16a, 1 Smith, Lead. Cas. 68; post, § 375 et eeq. (312) Ch. 18] LANDLORD AND TENANT KENT PERSONS ENTITLED. § 363 be paid there; ^' otherwise, rent is both demandable and payable on the premises."* As to the time of payment, in the absence of express stipulation on the subject, rent, being a retribution or return for the land leased, is payable at the end of the year, month or other period designated." If there is an express stipulation, it will control, and if the language is ambiguous it is to be interpreted with reference to the leading fact that the rent is a return for the land leased. Hence, in a lease for years, a reservation of rent "payable at Michaelmas and Lady Day, in even portions," is construed to mean payable annually on those days. And if it be made payable annually, without saying during the whole term, yet it is to be so construed.^' As to the hour of the day when rent falls due, it is to be observed that for all purposes connected with the counting of money the com- mon-law rule is that the rent shall be regarded as falling due at or before sunset of the last day, or at least when there is sufficient day- light left to see to count the money. Hence rent must be demanded, tendered or paid at or before this hour.°^ But for other purposes (as for purposes of distress, action, succession, etc.) rent is not due until midnight of that day. Hence, if a lessor, seised in fee simple, dies between sunset and midnight, the rent falling due on that day goes to his heir and not to his personal representative."' § 363. Same — 5. Persons Entitled to Rent Not in Arrear. The most comprehensive and practical plan is to reserve the rent payable during the term, without saying to whom. The law will then dis- tribute it to the persons entitled ; that is, to every one to whom the reversion shall appertain."" Hence, if a lessor seised in fee leases, I'eserving the rent during the term, since upon his death the rever- sion passes to his heir or devisee, the rent following the reversion passes likewise ; and if the lessor himself be possessed only of a term for years, the rent still following the reversion, goes to his personal representative. "'' And so in each case, though the rent be reserved generally, without stating for how long or to whom, since it is a return for the land, it is presumed to be of equal duration with the 03 2 Min. Insts. 61 ; Gilbert, Rents, SS et seq. " 2 Min. Insts. 61 ; Gilbert, Rents, 87, 88. B5 2 Min. Insts. 49 ; Bac. Abr. Rents (P). OS 2 Min. Insts. 49; Bac. Abr. Rents (F). 57 2 Min. Insts. 51 ; Bac. Abr. Rents (H) ; Gilbert, Rents, 52 ; Clun's Case, 10 Co. 127; Ex parte Smyth, 1 Swanst. 343, note. 88 2 Min. Insts. 52, and cases cited supra. is»2 Min. Insts. 50; Whitlock's Case, 8 Co. 71a; Gilbert, Rents, 64. •0 2 Min. Insts. 53; Gilbert, Rents, 66, 67; Bac. Abr. Rents (H). (313) § 363 LANDLORD AND TENANT EBNT PERSONS ENTITLED. [Ch. 18 demise, and after the lessor's death (and during his lifetime also) belongs to him who has the reversion. *'■ If the rent be reserved expressly to the lessor alone (not naming heirs or personal representative) and the lease be for a term of years, upon the principle "Expressio unius exclusio alterius est," it goes at common law neither to the heir nor personal representative of the lessor, but ceases altogether at his death. "^ If, the other cir- cumstances remaining the same, the lease is in fee simple, the lessor still takes only an estate for life in the rent at common law, because of the want of words of inheritance (heirs), which are essential at common law even where the inheritance is created by a reserva- tion.^^ Another case of difficulty deserves some attention — where the rent (not made payable expressly throughout the term) is reserved to the lessor and his personal representative, where the heir is the proper party to succeed to the reversion, or vice versa. The law uses all the industry imaginable to conform the reservation to the estate, but this disposition may be thwarted by the terms in which the parties express themselves. Thus, if it appears that the rent is to be paid throughout the term, it will follow the reversion and be payable to him who has that, although it be reserved to the wrong representative. But if it do not clearly appear that the rent was de- signed to continue during the whole term, and it is expressly reserv- ed to an improper person, as to the executor instead of the heir, or vice versa, the rent will cease upon the lessor's death."* If the rent is reserved payable to one of two joint tenants, a distinction must be noted between the case where the rent is reserv- ed by parol (that is, not under seal) and where it is reserved by deed indented (that is, where both parties unite in the deed). In the former case the rent following the reversion accrues to both joint tenants ; in the latter the parties are estopped by their indenture from claiming the rent save in accordance with the deed, and it goes in its entirety to the joint tenant to whom it is reserved. *° §. 364. Same — 6. Persons Entitled to Rent in Arrear. Rent in its technical meaning is a right to a profit, and is readily distinguish- able from the arrears of rent, which are the profits themselves and 61 2 Mln. Insts. 50 ; Bac. Abr. Rents (H). 62 2 Min. Insts. 50; Gilbert, Rents, 64, 65; Bac. Abr. Rents (H) ; 2 Th. Co. Lit 413. 63Ante, § 144. •4 2 Min. Insts. 51 ; Gilbert, Rents, 65 et seq. ; Bac. Abr. Rents (H) ; 2 Th. Co. Lit. 413, note (K). 6 5 2 Min. Insts. 51; Gilbert, Bents, 63. (314) Oh. 18] ' LANDLORD AND TENANT RENT APPORTIONMENT. § 365 in all cases personal property or choses in action. ^° Hence rent fallen due before the lessor's death is never payable to the heir, but always to the personal representative of the lessor."'' Nor do the arrears of rent pass upon the assignment of the reversion to an assignee, without express mention.'* § 365. Same — 7. Apportionment of Rent — A. In Point of Time. Rent is apportionable or divisible in two aspects : (1) In point of time; (2) in point of amount. The first is to be dealt with in this section. At common law, rent is not regarded as accruing from day to day, like interest, but is an entire thing and becomes due en masse only upon the day designated for its payment.*^ Hence, if the landlord is a tenant in fee and dies between two rent days, no part of the rent since the last rent day is yet due, and his personal representative is therefore entitled to none of it, but it all goes to the heir or devisee, the reversioner.''" For the same reason, if a landlord assign his re- version between rent days, he ceases to have any claim to the rent subsequently accruing, unless he expressly reserves the same in the assignment.'^ And so, if the tenant be evicted by title paramount from the whole of the leased premises, or by the lessor himself from any part thereof, between rent days, the landlord can at common law claim no part of the rent accrued before the eviction occurred.'^ Upon the same principle, if the lessor is himself only a tenant for life, and dies between rent days, his personal representative is at common law entitled to no rent, because there are no arrears of rent until the ensuing rent day, and, being a tenant for life only, no re- version descends to his heir, so that he is not entitled to the rent; nor can the reversioner or remainderman (after the life estate) re- cover it, for the lease ceases with the death of the life tenant 6 6 Ante, §§ 73, 74 ; 2 Min. Insts. 39. 6T 2 Min. Insts. 53. 8 8 It should be noted that arrears of rent is a chose In action, which could not be assigned at common law. See ante, § 361. e»l Tiffany, Real Prop. § 361; Clun's Case, 10 Co. 127a; Sohier v. El- dredge, 103 Mass. 345, 351 ; Marshall v. Moseley, 21 N. Y. 280 ; Bloodwortb V. Stevens, 51 Miss. 475. 7 See authorities, supra. 712 Min. Insts. 757; Bank of Pennsylvania v. Wise, 3 "Watts (Pa.) 394; Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572. 72 2 Min. Insts. 59 ; Clun's Case, 10 Co. 127a ; Fitchburg Cotton Manu- factory Corp. V. Melven, 15 Mass. 270; Nicholson v. Munigle, 6 Allen (Mass.) 215; Hammond v. Thompson, 168 Mass. 531, 47 N. B. 137; Zule v. Zule, 24 Wend. (N. Y.) 76, 35 Am. Dec. 600. See post, § 441. (315) § 365 LANDLORD AND TENANT KENT APPORTIONMENT. [Oh. 18 lessor/' and the reversioner or remainderman is at common law entitled only to rent falling due in his time; hence the lessee for years would at common law escape altogether the payment of rent since the last rent day.'* But even at common law, if the life tenant die upon the rent day itself, though prior to midnight of that day (at which hour in strictness the rent falls due)," owing to the hard- ship of the case and upon the principle "De minimis lex non curat," • an exception is made to the general principle, and the rent is regard- ed as having already fallen due, and hence goes in full to the lessor's personal representative.'* This common-law principle has been changed in England by stat- ute, at least so far as relates to the last case mentioned; that is, where the lessor is tenant for life and his undertenant's estate is terminated by the lessor's death, the statute apportioning the rent in such case between the lessor's personal representative and his reversioner or remainderman." The matter is also generally regu- lated by statute in the United States.'^ § 366. Same — B. In Point of Amount. In pursuance of the rule that the rent follows the reversion, if the landlord assigns his reversion, or part thereof, in parcels to different persons, the rent to fall due after such assignment is to be apportioned among the different owners of the once single reversion.'" But the landlord may by express agreement assign the reversion, reserving to him- self the rent to fall due thereafter, in which case, of course, there is no reason for apportionment ; or, vice versa, he may assign the rent amongst several without assigning the reversion, in which case the rent is to be apportioned among the various assignees according to their rights. "' On the other hand, a tenant may assign the land itself to several parties in different parcels, and thus, if the landlord assents to such 73 It would be otherwise if tlie life tenant had leased under a power per- mitting him to make leases extending beyond his own life. Rockingham v. Penrice, 1 P. Wms. 177. '*Ante, § 207; 2 Min. Insts. 52; Jenner v. Morgan, 1 P. Wms. 391; Ex parte Smyth, 1 Swanst. 339, 340, note ; Clun's Case, 10 Co. 128a ; Perry v. Aldrieh, 13 N. H. 343, 38 Am. Dec. 493 ; Hoagland v. Crum, 113 111. 365, 55 Am. Rep. 424. 7 6 Ante, § 362. 7 8 Ante, § 207; 2 Min. Insts. 52; Rockingham v. Penrice, 1 P. Wms. 180. T7 11 Geo. II, c. 19. 7 8 1 stim. Am. Stat. Law, §§ 2027, 2028. 79 2 Min. Insts. 58; Co. Litt. 14Sa; West v. Lassels, 1 Cro. (Ellz.) 851: Ehrman v. Mayer, 57 Md. 612; Worthington v. Cooke, 56 Md. 51; Linton V. Hart, 25 Pa. 193, 64 Am. Dec. 691. sol Tiffany, Real Prop. § 362; Ards v. Watkins, 1 Cro. (Ellz.) 637; Elvis T. Watson, 5 M. & W. 255 ; Ryerson v. Quackenbush, 26 N. J. Law, 236. (316) Oh. 18] LANDLORD AND TENANT RENT APPORTIONMENT. § 366 assignments, may divide the burden of the rent. But it is worthy of note that a tenant cannot, without the landlord's assent, by an assignment or sublease of the premises lessen his own personal re- sponsibility or that of the whole land for the entire rent due the landlord. Hence an assignment or sublease of part of the land by the lessee, without the lessor's consent, does not affect the land- lord's right to distrein chattels on any part of the premises, or to sue the lessee for the entire rent, or to re-enter for breach of an ex- press condition subsequent. ^^ Since the rent is a return for the land leased, if the reversion and the leasehold become united in the same person, whether by the tenant's surrender to the reversioner or the reversioner's release to the tenant, or otherwise, the tenant's estate is extinguished by merger, and the rent therefore ceases,^^ or if there be a transfer of only part of the land to the reversioner, there is a merger pro tanto and an apportionment of the rent results.*^ For the same reason, if the tenant is evicted from the premises or part thereof by a stranger under a paramount title, the rent ought to be, and is proportionably reduced.^* But if the lessee be evict- ed by the lessor himself from any, even the least part, of the prem- ises, it operates a suspension of the entire rent during the whole year of the tenancy (or other period for which the rent is reserved) in which the eviction occurs, and that notwithstanding the tenant remains in undisturbed possession of the residue and of much the greater portion of the premises, and soon regains possession of the part of which he was evicted.^ ^ SI Walker's Case, 3 Co. 24a; Broom v. Here, 1 Cro. (Eliz.) 633; Arnsby V. Woodward, 6 B. & Cr. 519 ; Wheeler v. Earle, 5 Cush. (Mass.) 31, 51 Am. Dec. 41; Peck v. Ingersoll, 7 N. Y. 528. s2Amory v. Kannoffsky, 117 Mass. 351, 19 Am. Rep. 416; Underbill v. Collins, 132 N. Y. 269, 30 N. E. 576 ; Terstegge v. First German Benev. Soc, 92 Ind. 82, 47 Am. Rep. 135; Pratt v. H. M. Richards Jewelry Co., 69 Pa. 53 ; Minneapolis Co-operative Co. v. Williamson, 51 Minn. 53, 52 N. W. 986, 38 Am. St. Rep. 473. 83 2 Min. Insts. 58; 1 Th. Co. Lit. 466; Gilbert, Rents, 179; Walker's Case, 3 Co. 22b ; Ehrman v. Mayer, 57 Md. 612 ; Peters v. Newkirk, 6 Cow. (N. Y.) 103; Nellis v. Lathrop, 22 Wend. (N. Y.) 121, 34 Am. Dec. 285; Higgins V. Cali:fornla Petroleum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087. If the rent be indivisible, e. g., a horse, since it cannot be apportioned, it is extinct altogether. 2 Min. Insts. 56; 1 Th. Co. Lit. 471; Gilbert, Rents, 165; Bruerton's Case, 6 Co. 1. 84 2 Min. Insts. 58; 1 Th. Co. Lit. 468; Gilbert, Rents, 148, 149; Clun's Case, 10 Co. 128. 85 2 Min. Insts. 56, 759, 760; 1 Th. Co. Lit. 470, note (H, 1) ; Gilbert, Rents, 178 ; Briggs v. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326 ; Tunis v. Grandy, 22 Grat. (Va.) 109, 110, 120. But see 1 Washburn, Real Prop. 348 et seq. (317) § 366 LANDLORD AND TENANT KENT APPORTIONMENT. [Ch. 18 In view of the fact that the law regards the tenant as a qtiasi pur- chaser of the premises leased, the rent being the quasi purchase price, a strict adherence to principle would demand that no subse- quent destruction of the premises or of any portion thereof, even though without the tenant's fault, should relieve the tenant from responsibility for the price he has agreed to pay. But the common law, making an illogical concession to the hardship of the tenant's situation, abates the rent proportionally, if the very thing out of which the rent issues, the land itself, is partially or wholly destroy- ed, as where the land is permanently submerged or swept away by water.^" Upon this principle, where one leases a room or apart- ments in a building which is destroyed by fire, he is at common law relieved from his obligation to pay rent, because there is no land leased, strictly speaking, but only the building, out of which the rent issues ; the destruction of that bringing the case within the common-law exception. ^^ No such concession, however, was allowed by the common law in the case of a lease of land and buildings, where the buildings were partially or wholly destroyed by fire or other cause, but the tenant must continue to pay the entire rent throughout the term, though he were in no default.^* § 367. VI. The Usual Covenants Contained in Leases — Dis- cussion Outlined. If the parties to a lease wish to bind themselves or each other to duties not required of them by the general law of landlord and tenant, they may do so by inserting the stipulation; (1) In the form of a condition, upon the breach of which the lease may terminate ; or (2) in the form of a personal covenant, upon the breach of which the injured party is entitled to sue the other for damages for breach of the covenant ; or (3) in the form of a cove- nant, but with a right of entry reserved in case of a breach, which practically makes it a condition, and assimilates it to the first case Conditions contained in leases in no way differ from condi- tions in other conveyances, and will be discussed at large here- 8 6 Ante, § 84; 2 Min. Insts. 58, 59; 1 Th. Co. Lit. 469, note (G, 1); Gil- bert, Rents, 187. 8 7 See Warren v. Wagner, 75 Ala. 188, 51 Ain. Rep. 446; Graves v. Berdan, 26 N. T. 498; Stockwell v. Hunter, 1.1 Mete. (Mass.) 448, 45 Am. Dec. 220; Buschman v. Wilson, 29 Md. 553 ; Harrington y. Watson, 11 Or. 143, 3 Pac'. 173, 50 Am. Rep. 465 ; Ainsworth v. Rltt, 38 Cal. 89 ; Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N. W. 785, 36 L. R. A. 424, 61 Am. St. Rep. 570, note. 8 8 Ante, § 84; 2 Min. Insts. 60; 1 Th. Co. Lit. 469, note (G, 1); Ross v Overton, 3 Call (Va.) 309, 2 Am. Dec. 552. (318) Oh. 18] LANDLORD AND TENANT COVENANTS OF TITLE. § 368 after.'" They need not be more particularly mentioned in this connection. Covenants may be either implied or express, and may relate to any lawful subject in the contemplation of the parties. No at- tempt will be made here to enumerate all the various covenants which may, or even which should, be included in leases. -They depend in great measure upon the condition arid situation of the leased premises and the circumstances and wants of the parties. Only a few of the more important and frequently recurring will be mentioned. They will be considered in the following order; (1) The cove- nants of title; (2) the covenant for rent; (3) the covenant to re- pair; (4) the covenant not to assign without leave; (5) covenant for re-entry for nonpayment of rent or breach of covenants. § 368. Same — 1. Covenants of Title. A covenant of title is a stipulation on the part of the lessor, in one form or another, that he is transferring to the lessee a good title to the land leased, and that the lessee shall enjoy quiet and undisturbed possession of the same throughout the tenancy. Such covenants may be express, or implied by the law. A covenant for the quiet enjoyment of the leased premises in favor of the lessee is implied from the use of words of demise, such as "demise," "let" or "lease." °° Indeed, according to the weight of authority, at least in this country, such a covenant may be implied in a lease for years merely from the relation of land- lord and tenant, though there be no special words of demise, as in case of a verbal lease. *^ Moreover, there may be implied from proper words of demise (but not from the mere relation of landlord and tenant) a covenant that the lessor has lawful power to make the lease. "^ Of course there may also be express covenants of quiet enjoy- ment and of lawful power to demise, and if their terms are more 8 9 Post, § 466 et seq. 90 2 Min. Insts. 193 ; McClenahan v. Gwynn, 3 Mimf. (Va.) 556 ; Blaclv V. Gilmore, 9 Leigli (Va.) 448, 33 Am. Dec. 253; Stott v. Rutherford, 92 U. S. 107, 23 L. Ed. 486; Foster v. Peyser, 9 Gush. (Mass.) 242, 57 Am. Dec. 43; Maule v. Ashmead, 20 Pa. 482; Crouch v. Fowle, 9 N. II. 219, 32 Am. Dec. 350. 91 Rawle, Gov. § 274 ; Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082 ; Mack V. Patchin, 42 N. T. 167, 1 Am. Rep. 506; Barns v. Wilson, 116 Pa. 303, 9 Atl. 437 ; Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279 ; Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680. But in Virginia tbe doctrine seems to be otherwise. Black v. Gilmore, 9 Leigh (Va.) 446, 33 Am. Dec. 253. 92 1 Tiffany, Real Prop. § 43; Rawle, Gov. § 274; Gano v. Vanderveer, 34 N. J. Law, 293 ; Vernam v. Smith, 15 N. Y. 327. (3J9) § 368 LANDLORD AND TENANT COVENANTS OF TlTLja. [Ch. 18 restricted in scope than the implied covenants would be in their ab- sence, they have the effect of restricting to the same extent the im- plied covenants themselves. °^ Nevertheless, the covenant of quiet enjoyment only protects the lessee against an eviction by the lessor or by a stranger under a paramount title, and does not embrace mere acts of trespass or wrongdoing on the part of either lessor or stranger, nor even an unlawful eviction by a stranger.'* § 369. Sam,© — 2. Covenant for Rent. A covenant to pay rent is implied, on the part of the lessee, from the words "yielding and pay- ing" the stipulated rent, and probably from any words designating the amount of rent to be paid, though they be the words of the lessor as in the first instance above given ; for by his acceptance of the lease the words constitute an implied engagement or cove- nant by the lessee to pay the rent at the end of the year or other period for which it is reserved payable, and upon that covenant the lessor may found an action of debt or any other appropriate action for the rent.'^ Indeed, a promise to pay rent may be implied without the use of any particular words, and without any express, lease, though in such case the action is rather in the form of an indebitatus assump- sit for use and occupation than of an action to recover rent eo nomine. Such an action will lie at common law upon the implied promise arising from the use and occupation of land by permis- sion, or upon an express general promise to pay rent satisfactory to the landlord.'^ But this implied obligation, resulting as it does from the mere relation of landlord and tenant, continues no longer than the lessee retains the premises, ceasing if he assigns them ; whilst an express covenant to pay rent binds the lessee personally, independently of his interest in the land.'^ 8 3Rawle, Gov. § 275; Nokes' Case, 4 Co. 80b; Kent v. Welch, 7 Johns. (N. Y.) 258, 5 Am. Dec. 266; Burr v. Stenton, 43 N. Y. 462; O'Connor v. Memphis, 7 Lea (Tenn.) 219; Merritt v. Closson, 36 Vt. 172; Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350. 9 4 Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Boreel v. Law- ton, 90 N. Y. 293, 43 Am. Rep. 170; Moore v. Weber, Jl Pa. 429, 10 Am. Rep. 708; Surget v. Arighl, 11 Smedes & M. (Miss.) 87, 49 Am. Dec. 46; Baugher v. WUkins, 16 Md. 35, 77 Am. Dec. 279. For acts constituting evic- tion by the landlord, see post, § 373. 86 2 Mln. Insts. 775; 2 Th. Co. Lit. 2.j2, Butler's note. 96 Sutton V. Mandeville, 1 Munf. (Va.) 407, 4 Am. Dec. 549. See Ward v. Ward, 40 W. Va. 611, 21 S. B. 746, 52 Am. St. Rep. 911, 29 L. R. A. 449. »7 2 Mln. Insts. 775 ; 1 Washburn, Real Prop. 326, 333, 334. (320) Ch. 18] LANDLORD AND TENANT — COVENANT TO REPAIR. § 370 § 370. Same — 3. Covenant to Repair. In the absence of ex- press stipulation, the lessee is under no other obligation to repair the premises than is imposed upon him by the general and obvious duty to return the premises at the end of the lease in as good condi- tion as possible, excepting deteriorations resulting from ordinary wear and tear and damage which is the direct consequence of in- evitable forces, or acts of God or a public enemy. In other words the law implies no covenant on the part of the lessee to repair, ex- cept to the extent necessary to prevent him from being guilty of waste. ^^ With respect to the tenant's express covenants upon this point, a distinction is to be noted at common law between a covenant tg repair and a covenant to return the premises in good condition, ordinary wear and tear excepted, or words to that effect — a distinc- tion which, while not universally recognized, is quite generally ob- served. A covenant in the latter form is generally looked upon as nothing more than an embodiment in words of the duty resting upon the lessee at common law, and does not make him responsible for destruction of the premises or injury thereto by causes which would not involve the tenant in liability for waste, either voluntary or permissive. '^ But if the covenant be in the form of a promise to repair, or to return or keep or leave or surrender the premises in good re- pair, or wherever there are no qualifying words showing some design to limit the lessee's responsibility, it is a well-established principle of the common law that the lessee is thereby obligated to rebuild the destroyed premises at all events, though the destruc- tion be caused by the act gf God, such as lightning or flood, and without any fault on the part of the tenant.^ The rigor with which »8 Post, § 379 ; 2 Min. Insts. 194. s^Maggort V. Hansbarger, 8 Leigh (Va.) 536; Warner v. Hitchins, .5 Barb. (N. T.) 666; Mcintosh v. Lown, 49 Barb. (X. Y.) 550; Armstrong v. Maybee, 17 Wash. 24, 48 Pac. 737, 61 Am. St. Rep. 898 ; Wainscott v. Silvers, 13 Ind. 500; Howeth v. Anderson, 25 Tex. 557, 78 Am. Dec. 538; Miller v. Morris, 55 Tex. 412, 40 Am. Rep. 814; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446. 1 2 Min. Insts. 923 ; Walton v. Waterhouse, 3 Saund. 420, 422a, note ; Bullock V. Dommitt, 6 T. R. 650; Digby v. Atkinson, 4 Campb. 278, note: Richmond Ice Co. v. Crystal Ice Co., 99 Va. 244, 37 S. E. 851; Phillips v. Stevens, 16 Mass. 238 ; Beach v. Crain, 2 N. Y. 87, 49 Am. Dec. 369 ; Hoy V. Holt, 91 Pa. 88, 36 Am. Rep. 659; Polock v. Pioche, 35 Cal. 416, 95 Am. Dec. 115, note; Armstrong v. Maybee, 17 Wash. 24, 48 Pac. 737, 61 Am. St. Rep. S98; Mcintosh r. Lown, 49 Barb. (N. Y.) 550; Wainscott v. Silvers, 13 Ind. 500. MiNOK & W.Real Pbop.— 21 (S21) § 370 LANDLORD AND TENANT COVENANT TO REPAIR. [Ch. 18 this covenant, as well as that for the payment of rent, is enforced at common law, is well illustrated by the Virginia case of Ross v. Overton,^ where a mill, leased a.t a given rent for seven years and with a covenant to return in good repair, was swept away by a flood. It was held that the tenant must at common law not only continue to pay the rent throughout the term without abatement, but must also rebuild the mill under his covenant to return in good repair. In conclusion, it must be observed that the law implies no obliga- tion upon the lessor to repair the leased premises. If such respon- sibility rests upon him, it must be by virtue of his express agree- ment.' § 371. Same — 4. Covenant Not to Assign without Leave. While a tenant at will cannot assign, though he may sublease his estate, the assignment operating as a termination of the estate,* it is otherwise with regard to tenants for life or for years, who are permitted freely to assign or sublet unless restricted by covenants or conditions in the lease, which restrictions, however, may be ab- solute or qualified.' But such restrictions are not favored by the law and are strictly construed.* It is to be observed that such a covenant, if it appears in the lease, does not invalidate an assignment or sublease made by the tenant, but he is merely liable in damages for the breach of the covenant. But in this as in other cases, if the stipulation be in the form of a condition, or in the form of a covenant with the further stipulation for a right of entry in case of its violation (which makes the covenant equivalent to a condition), an assignment or sublease of the premises is a ground of forfeiture b^ the tenant, and the land- lord may re-enter.'' § 372. Same — 5. Covenant That Lessor may Re-enter for De- fault in Payment of Rent or for Breach of Any Covenant in the Lease. This is a quite usual and a very important covenant to be contained in a lease. Its efifect is practically to convert what are covenants in form into conditions, the breach of which permits the lessor to enter and terminate the estate, instead of confining 2 3 Call, 309, 319, 2 Am. Dec. 552. ••Ante, § 337. • 2 MIn. Insts. 193. BAnte, §§ 194, 329; post, § 525. 6 Post, § 525 ; 2 Min. Insts. 194 ; 1 Washburn, Real Prop. 337. A condi- tion or covenant not to assign is therefore not violated by a sublease. Crusoe V. Bugby, 2 W. Bl. 766; Jackson ex dem. Welden v. Harrison, 17 Johns. (N. T.) 66 ; Hargrave v. King, 40 N. C. 430. ^ Paul V. Nurse, 8 B. & Cr. 480 ; Williams v. Earle, L. R. 3 Q. B. 739 ; Shattuck V. Lovejoy, 8 Gray (Mass.) 204; Burnes v. McCubbin, 3 Kan. 221, 87 Am. Dec. 468 ; post, §§ 372, 473. (322) Ch. 18] LANDLOED AND TENANT DUTY NOT TO EVICT. § 373 him to an action for damages for breach of the covenant. It gives him the option to do either — an option he does not have if it be a pure covenant on the one side or a pure condition on the other. But, in the application of this covenant to re-entry for default in the payment of rent, it is necessary that the lessor before making the re-entry should demand of the tenant that he pay the rent, un- less there be a contrary agreement." § 373. VII. Landlord's Duty Not to Evict Tenant. Upon the eviction of the tenant, three important consequences follow: (1) The lessee is entitled to sue the landlord upon his covenant of quiet enjoyment ; ° (2) the lessee's estate is thereby terminated as to the land so taken, and he ceases to be estopped to deny the landlord's title as to that land; ^^ and (3) there is an abatement of the rent.^^ These results follow equally, whether the eviction be by a stranger under paramount title or by the lessor, except only that in the mat- ter of the abatement of the rent, the law seeks to punish the lessor for his wrongful act, and hence suspends the entire rent, though the lessee be evicted by the lessor from a small part of the prem- ises only, while if the eviction be by a stranger under title para- mount the rent is merely reduced pro tanto.^^ An eviction of the tenant by the landlord may be either actual, as where the tenant or his sublessee is actually dispossessed of the premises, or part thereof,^^ or constructive, not involving an actual dispossession, but consisting of some permanent act of the land- lord, with the intention, and with the effect, of depriving the ten- ant of the full enjoyment of the premises, forcing the tenant to leave oi abandon the premises.^* But the landlord's mere entry upon the land and doing acts of trespass there, however aggravated, there being no claim of ownership, does not amotmt to an eviction, actual or constructive, but only gives the tenant an action for damages. '^^ To constitute a constructive eviction, as indicated by the defini- tion thereof above given, four conditions must concur: (1) The landlord's act must be of a permanent character, that is, not a mere 8 Duppa V. Mayo, 1 Saund. 287, note 16 ; Doe v. Wandlass, 7 T. R. 117. oAnte, § 358. loAnte, § 357. "Ante, § 366. i2Ante, § 366. IS Burn v. Phelps, 1 Stark. 94 ; Briggs v. Thompson, 9 Pa. 338. 1* 1 Tiffany, Real Prop. § 51 ; Upton v. Townend, 17 C. B. 30 ; Briggs v. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326; Tunis t. Grandy, 22 Grat. (Va.) 130; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Hayner v. Smith, 63 111. 430, 14 Am. Rep. 124. 15 2 Min. Insts. 760 ; .Smith v. Raleigh, 3 Campb. 513 ; Upton v. Townend, 17 C. B. 30; Briggs v. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326; Tunis v. Grandy, 22 «rat. (Va.) 130 ; Skally v. Shute, 132 Mass. 367 ; Lounsbery v. Snyder, 31 N. Y. 514; Dyett v. Pendleton, 8 Cow. (N. Y.) 727; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446. (323) § 374 LANDLORD AND TENANT ASSIGNMENT OR SUBLEASE. [Ch. 18 temporary act of trespass, or producing temporary inconvenience to the tenant; ^^ (2) the landlord's act must be done with the in- tention (implied, if not expressed) to deprive the owner partially at least of the enjoyment of the property leased, this intention, always difficult to establish, being generally for the jury to determine;" (3) the act must have the effect designed, that is, must deprive the tenant of the full enjoyment of the premises; ^* and (4) the tenant must, by reason of the landlord's act, have been induced to aban- don the premises in whole or in part. He cannot remain in pos- session of the entire premises, and yet claim that he has been evicted.^* § 374. VIII. Assignment and Sublease of the Premises. In the absence of stipulations to the contrary, a tenant may always assign or sublease the premises.^" The difiference between an assignment and a sublease is marked, not only in their respective natures, but in their effects also. An assignment is a total transfer to another of all the tenant's interest in the whole or a part of the premises, leaving no interest in the assignor as to the land assigned,^^ and the assignee steps, as it were, into the shoes of his assignor, succeeding to all his rights and lia- bilities ; in other words, he is a privy in estate of the lessor, and a privy in contract of the lessee (but not of the lessor). ^^ A sublease, on the other hand, is a transfer of only part of the lessee's estate in the land leased, or in part thereof, leaving a re- version in the lessee as to the land sublet. ^^ The sublessee is not 16 See supra. "Upton V. Towuend, 17 C. B. 30; Hunt v. Cope, Cowp. 242; Skally v. Shute, 132 Mass. 367 ; Tallman v. Murphy, 120 N. X. 345, 24 X. E. 71G. 18 Upton V. Townend, 17 C. B. 30; Skally v. Shute, 132 Mass. 367; Royce V. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Sully v. Schmitt, 147 X. Y. 248, 41 N. E. 514, 49 Am. St. Rep. 6.59; Dyett v. Pendleton, 8 Cow. (N. Y.y 727; Ogi"vie v. Hull, 5 Hill (X. T.) 52; Coulter v. Norton, 100 Mich. 38;), 59 N. W. 163, 43 Am. St. Rep. 458; Halligan v. Wade, 21 111. 470, 74 Am. Dec. 108; Hoeveler v. Fleming, 91 Pa. 322; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117 ; Edmison v. Lowry, 3 S. D. 77, 52 N. W. 583, 17 L. R. A 275, 44 Am. St. Rep. 775. 18 1 Tiffany, Real Prop. § 51; Dewitt v. Pierson, 112 Mass. 8, 17 Am. Rep. 58; Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170; Edgerton v. Page, 20 N. Y. 281 ; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446 ; Bar- rett V. Boddie, 158 111. 479, 42 N. E. 143, 49 Am. St. Rep. 172. 2 Ante, § 371; 1 Taylor, Landl. & Ten. § 402. 21 Post, § 991 et seq. 2 2 Post, §§ 376, 991, et seq.; Walker's Case, 3 Co. 22a; Marsh v. Brace, 2 Cro. (Jac.) 334 ; Drake v. Lacoe, 157 Pa. 17, 38, 27 Atl. 538 ; Consumers' Ice Co. V. Bixler, 84 Md. 437, 35 Atl. 1086; Nova Cesarea Harmony Lodge No. 2 V. White, 30 Ohio St. 569, 27 Am. Rep. 492. See 7 Am;- Law Rev. 245. 23 1 Taylor, LandJ. & Ten. § 109 ; Stewart v. Long Island R. Co., 102 N- (324) Ch. 18] LANDLORD AND TENANT COVENANTS RUN WITH LAND. § 375 in privity, either of estate or of contract, With the original landlord, and therefore neither can enforce any personal liability against the other, they being in law total strangers to each other. ^* The fact that the lessee, in making the transfer to another, re- serves a rent greater or less than he himself has stipulated to pay the landlord for the premises, does not prevent the transfer from being treated as an assignment, at least so far as concerns the orig- inal landlord, if the interest transferred by the lessee is his whole interest in either the entire land or in part thereof.^' The assign- ment may take place, not only by voluntary transfer, but also by act of the law, as where the tenant's estate passes to a purchaser at a judicial sale, or to an assignee in bankruptcy or insolvency,"^ or to the tenant's personal representative upon his deatli.^^ § 375. IX. Covenants Running with the Land. Covenants con- tained in a lease or conve}'ance of land are said to run with the land "when they are of such character that the benefits and burdens thereof pass with the land to the assignee, into whosesoever hands the land may come." ^' In order that a covenant may run with the land, and the benefits and burdens pass, two circumstances must concur: (1) The cove- nant must refer to something which affects the nature, quality or value of the land leased or conveyed ; and (2) there must be a priv- ity of estate between the parties concerned. ^° Hence, if a lessor leases land to a tenant, stipulating in the lease that the tenant will leave the premises in good repair, or that he shall pay the taxes, or keep the premises insured, or pay the rent, T. 601. 8 N. E. 200, 55 Am. Rep. 844 ; Krider v. Ramsay, 79 N. C. 354. 2* Post, § 376. 25 1 Washburn, Real Prop. 333; 1 Taylor, Land]. & Ten. §§ 16, 426; Stewart v. Long Island R. Co., 102 N. T. 601, 8 N. E. 200, .j."> Am. Rep. 844 ; Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394 ; Sexton v. Chicago Stor- age Co., 129 111. 318, 21 N. E. 920, 16 Am. St. Rep. 274; Field v. Mills, 33 X. J. Law, 254. But see Dunlap v. Bullard, 131 Mass. 161. 2 6 McNeil V. Ames, 120 Mass. 481; Evans v. Hamrick, 61 Pa. 19, 100 Am. Dec. 595. 2T 2 Taylor, Landl. & Ten. §§ 460, 461 ; 2 Bl. Com. 386 ; Vyvyan v. Arthur, 1 B. & Cr. 410; Allender v. Sussan, 33 Md. 11, 3 Am. Rep. 171; Keating V. Condon, 68 Pa. 75 ; Inches v. Dickinson, 2 Allen (Mass.) 71, 79 Am. Dec. 765. 28 2 Min. Insts. 775. Covenants running with the land are not confined to leases, but are to be found also in conveyances of the fee simple, as in case of covenants of title. Post, § 903. 29 2 Min. Insts. 716; Rawle, Cov. 281; Bac. Abr. Covenant (B), 3, 4; Spencer's Case, 5 Co. 15b, 1 Smith, Lead. Cas. 92, 96, et seq. ; Morse v. Gar- ner, 1 Strob. (S. C.) 514, 47 Am. Dec. 570, note; Gibson v. Holden, 115 111. 109, 3 N. E. 282, 56 Am. Rep. 151, note. (325) § 375 LANDLOED AND TENANT COVENANTS EUN WITH LAND. [Ch. 18 or not commit waste, etc., or stipulating that the lessor will repair, or that he has lawful power to demise, or that the tenant shall have quiet possession, all these are covenants which concern or affect the nature, quality or value of the land itself, and if the lessee should subsequently assign all his interest in the premises, or in part of them, to another, the assignee, being in privity of estate with the lessor, the covenants run with the land, so that the assignee must bear the burdens and may enjoy the benefits of the covenants.^" In order that the assignee be thus bound or benefited, it is not necessary, even at common law, that assigns be expressly men- tioned in the covenant as beneficiaries or obligors thereof, except in the single instance where the covenant relates to something not in esse, as where the lessee binds himself to the future building of a wall or structure on the premises. In this case, the assignees of the lessee are not bound to build such structures unless assigns be expressly mentioned. ^^ On the other hand, the mere intention of the parties that as- signs shall be bound by their covenants, as evidenced by the men- tion of "assigns" or otherwise, does not cause the covenant to run with the land, if the covenant is not one concerning or affecting the land.^^ Thus, where in a lease of land, with liberty to erect a silk mill, the lessee covenanted for himself, his executors and assigns, not to hire persons to work in the mill who were settled in other parishes, without a parish certificate, and afterwards assigned the lease, it was held that the covenant was not one that ran with the 30 2 Min. Insts. 775, 776 ; Spencer's Case, 5 Co. 15b, 1 Smith, Lead. Cas. 92, 96, et seq. ; Hunt v. Thompson, 2 Allen (Mass.) 341 ; Stewart v. Long Island R. Co., 102 N. Y. 601, 8 X. E. 200, 55 Am. Rep. 844 ; State v. Martin, 14 Lea (Tenn.) 92, 52 Am. Rep. 167; Northern Trust Co. v. Snyder, 46 U. S. App. 179, 76 Fed. 34, 22 C. C. A. 47 ; Id., 46 U. S. App. 587, 77 Fed. 818, 23 C. C. A. 480; Thomas t. Vonkai^ff, 6 Gill & J. (Md.) 372; Vyvyan v. Arthur, 1 B. & Cr. 410. But a covenant in a lease or conveyance of land to pay a certain sum of money to a stranger is not a covenant concerning or affecting the land, and therefore does not run with the land. Mayho v. Buckhurst, Cro. (Jac.) 438; Dolph v. White, 12 N. T. 296. Nor is a cove- nant not to maintain a competing business within a certain distance of the premises. Thomas v. Hayward, L. R. 4 Exch. 311. 312 Mln. Insts. 775, 776; 1 Washburn, Real Prop. 332; Spencer's Case, 5 Co. 15b, 1 Smith, Lead. Cas. 92, 96, et seq. ; Congleton v. Pattison, 10 East, 138; Grey v. Cuthbertson, 2 Chit. 482; Thompson v. Rose, 8 Cow. (N. Y.) 266 ; Tallman v. Coffin, 4 N. Y. 134 ; Hansen v. Meyer, 81 111. 321, 25 Am. Rep. 282 ; Emerson v. Simpson, 43 N. H. 475, 80 Am. Dec. 184, 82 Am. Dec. 1C8. See Sims, Cov. 108. 32 2 Min. Insts. 715; Spencer's Case, 5 Co. 16, 1 Smith, Lead. Cas. 92 et seq. ; Congleton v. Pattison, 10 East, 130 ; Conover v. Smith, 17 N. J. Eq. 51, 86 Am. Dec. 247; Masury v. Southworth, 9 Ohio St. 340; Gibson v. Ilolden, 115 111. 199, 3 N. E. 282, 56 Am. Rep. 146. (326) Gh. 18] LANDLORD AND TENANT DURATION OF COVENANTS. § 377 land, affecting neither its nature, quality nor value, and that the assignee was not bound thereby.^' And so a covenant to pay Cer- tain sums annually for the use of the poor does not run with the land;'* nor a covenant to build a house on land other than that demised, or to pay a collateral sum to a stranger; nor a covenant to return the cattle, or cattle of like value, leased with the prem- ises.' ' Such covenants are collateral to the land, and do not run therewith. They are beneficial or burdensome to the tenant with- out regard to his continued occupancy of the land leased, and his assignees are not benefited nor bound thereby, though they be ex- pressly named. '* § 376. Same — Privity of Estate Necessary to Covenants Run- ning with the Land. Though a covenant concerns or afifects the nature, quality or value of the land leased or conveyed, it does not run therewith, except in the hands of persons in privity of estate with the original lessor or grantor.''' Hence, where land is grant- ed to W. with power of appointment, and with a covenant by W. and his assigns to pay rent, and W. appoints to J., who covenants to pay the same rent, J. or his representative cannot be sued by the original grantor upon W.'s covenant to pay rent, because J. does not hold under W., but under the original grantor.'^ So, also, while the assignees of a lease are in privity of estate with the original lessor, it is otherwise with the tenant's sublessee, who, not succeeding to the entire interest of the lessee in the whole or in part of the premises, does not stand in his shoes, and is nei- ther in privity of estate nor of contract with the original lessor." § 377. Same — Duration of Benefits and Burdens of Covenants. So far as the original parties to a covenant (the lessor and lessee) are concerned, they are in privity of contract with each other, and 33 Congleton v. Pattison, 10 East, 130. 34 Mayho v. Buckhurst, Cro. (Jac.) 438 ; 2 Min. Insts. 715. 36 2 Min. Insts. 715; Spencer's Case, 5 Co. 16b, 1 Smith, Lead. Cas. 92, GO, et seq. ; Bac. Abr. Covenant (E), 3 ; Rawle, Cov. 281 et seq. 36 2 Min. Insts. 775; 1 Washburn, Eeal Prop. 331; Vyvyan v. Arthur, 1 B. & Cr. 410; Vernon v. Smith, 5 B. & Aid. 11. 37 2 Min. Insts. 715, 716; Bac. Abr. Covenant (E), 3; Roach v. Wadhani, 6 Bast, 289. 38 Roach V. Wadham, 6 East, 280. 3 9Ante, § 374; 2 Min. Insts. 799; Sims, Cov. 99; Stewart v. Long Island R. Co., 102 N. Y. 601, 8 N. E. 200, 55 Am. Rep. 844; Mayhew v. Hardesty, 8 Md. 479. But the lessor cannot be deprived, without his consent, of any right of entry upon the entire premises for breach of condition or covenant by the sole act of the tenant in subleasing. Ante, § 366; Arnsby v. Wood- ward, 6 B. & Cr. 519; Wheeler v. Earle, 5 Cush. (Mass.) 31, 51 Am. Dec. 41 ; Peck v. Ingersoll, 7 N. Y. 528. (327) § 377 LANDLORD AND TENANT DURATION OF COVENANTS. [Oh. 18 the benefits or burdens of their contract attach to them personally, regardless of their continued ownership or occupancy of the re- version or the land, respectively.*" In case, however, of the lessee's assignment of the premises, while the lessee continues liable to the lessor upon his personal covenant, he is regarded as liable as a surety only ; the primary liability resting upon the assignee of the premises, if the covenant be one that runs with the land.*^ But the assignee's responsibility or rights upon covenants run- ning with the land are based, not upon privity of contract with the original lessor, but upon privity of estate, and accrue only by virtue of his ownership or occupancy of the premises. They there- fore endure so long as the assignee continues to occupy the prem- ises, and cease the moment he assigns them, though it be to a beg- gar, or though he assign the premises with the express design to relieve himself of his responsibilities.*" But this does not mean that an assignee, after having himself violated a covenant running with the land, may escape responsibility therefor by assigning the premises to another. He is liable for, or may take advantage of, all breaches occurring in his time, whether or not his interest in the premises continues.*^ But he is never liable for a breach of cove- nants, whether express or implied, occurring before the assignment to him nor after he assigns to another ; nor, on the other hand, can he sue the lessor for such breaches of the covenants by him.** Hence, if a lessee covenants to rebuild a house on the leased prem- ises within a time limited, and fails to do so, and then assigns his lease, the assignee is not chargeable; the covenant not having been broken by him.*^ It follows from what has been said that a covenant already broken ceases at once to pass with the land, because the breach must occur during the occupancy of the assignee, in order that he may be liable for or take advantage of it. When broken, the covenant ceases to io 2 Min. Insts. 716. 41 Moule V. Garrett, L. R. 7 Exch. 101 ; Humble v. Langston, 7 M. & W. 517; Farrington v. Kimball, 126 Mass. 31.S, 30 Am. Rep. 680; Bender v. George, 92 Pa. 36 ; Brlnkley v. Hambleton, 67 Md. 169, 8 Atl. 904. 42 2 Min. Insts. 716; Valliant v. Dodemede, 2 Atk. .546; Bell v. American Protective League, 163 Mass. 558, 40 N. E. 857, 28 L. R. A. 452, 47 Am. St. Rep. 481 ; Sanders v. Partridge, 108 Mass. 556 ; Washington Natural Gas Co. V. Johnson, 123 Pa. 576, 16 Atl. 799, 10 Am. St. Rep. 553; I-Iintze v, Thomas, 7 Md. 346; Johnson v. Sherman, 15 Gal. 287, 76 Am. Dec. 481. 43 2 Min. Insts. 716, 798, 799. 44 2 Min. Insts. 799 ; Rawle, Gov. 285 et seq. ; Farmers' Bank v. .Mutual Assur. Soc, 4 Leigh (Va.) 69; Dickinson v. Hoomes, 8 Grat. (Va.) 353, 395, 396. 15 2 Min. Insts. 799. (328) Ch. 18] LANDLORD AND TENANT COVENANTS REVERSION. § 3'7S run with the land, and becomes a mere chose in action in the hands of him v^rho had the land or the reversion at the time of the breach. § 378. X. Covenants Running with the Reversion. While it seems always to have been admitted at common law, upon an as- signment of the land, that the benefits and burdens of covenants in the lease pass with the land to the assignee thereof, it is equally an accepted doctrine of the common law that, upon an assignment of the reversion by the lessor, the assignee of the reversion can neither maintain actions on the express covenants against the lessee, nor is he liable to be sued by the lessee or his assignee upon the lessor's express covenants. Such express covenants are at com- mon law said to run with the land, but not with the reversion.*" With covenants in law, or implied covenants, it is otherwise. They pass even at common law with the reversion, so that the assignee of the' reversion may sue the tenant for the rent reserved, a promise to pay which is implied from such phrases as "yielding and paying" or "reserving" the stipulated rent.*'' But when Henry VIII abolished the monasteries in England, and, confiscating their lands (which for the most part were leased out upon long terms), transferred the reversions in them to his fa- vorites, it was found that under this doctrine of the common law these royal and noble assignees could not enforce the express cove- nants in the leases, and the value of their reversions was thus seri- ously impaired. The king thereupon prevailed upon Parliament to enact the statutes 31 Hen. VIII, c. 13, and 32 Hen. VIII, c. 3J:, the primary purpose of which was to permit the assignees of the rever- sion to enforce covenants, though Parliament was induced to make the right mutual, and to allow the assignee of the reversion to be sued as well as to sue upon the express covenants contained in the lease, provided the covenant be of such a character that, if the land were assigned, the covenant would run with the land.** It is apparent from the tenor of the statute that it extends only to leases for life or years, and not to conveyances of the fee simple, and it is held to apply to assignees where a reversion in part of the land is assigned, as well as where a part of the reversionary estate is carved out of the reversion and assigned.*" 4»2 Min. Insts. 799; Thursby v. Plant, 1 Saund. 240. *7Ante, § 369; 2 Min. Insts. 799, 800; Vyvyan v. Arthur, 1 B. & Cr. 410. For other implied covenants on the part of lessee and lessor, respectively, see ante, §§ 414, 415. ■18 2 Min. Insts. 800; 2 Th. Co. Lit. 89 et seq., note (M, 2). *9 2 Min. Insts. 800; Sims, Gov. 98, 99; Congham v. King, Cro. Car. 221; Twynam v. Pickard, 2 B. & Aid. 105; Wright v. Burroughes, 3 C. B. 683; Harris v. Frank, 52 Miss. 155 ; Leiter v. Pike, 127 111. 287, 20 N. E. 23. (329) § 378 LANDLORD AND TENANT COVENANTS EEVBESION. [Ch. 18 It is to be observed that the lessor remains liable personally on his covenants, even though he assigns the reversion (though the assignee also becomes liable), since, as in case of an assignment by the lessee, the privity of contract continues.^" It is immaterial whether the assignment of the reversion be vol- untary or by operation of law,^"^ but it is essential that the assignee should have come in of the same estate in respect of which the cove- nant was made. Hence, if he comes in by title paramount, the stat- ute does not apply. Thus, if a lessee for twenty years leases for ten, and afterwards surrenders to him in reversion, the reversioner, being in by the elder title, which merges the one surrendered, can- not have the benefit of a condition or covenant entered into by the under lessee. ^^ BO Grey v. Cuthbertson, 2 Chit. 482; Jones v. Parker, 163 Mass. 564, 40 N. E. 1044, 47 Am. St. Rep. 485. But it is said that the lessor cannot sue for a breach of a covenant running with the land which occurs after his assignment of the reversion. ^Stoddard v. Emery, 128 Pa. 436, 18 Atl. 339. See Green v. James, 6 M. & W. 656 ; Vernon v. Smith, 5 B. & Aid. 11. 61 Burton v. Smith, 13 Pet. 464, 10 L. Ed. 248; Woodgate v. Fleet, 44 N. Y. 1 ; Evans v. Hamrick, 61 Pa. 19, 100 Am. Dec. 596 ; Murrell v.' Roberts, 33 N. C. 424, 53 Am. Dec. 419 ; Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364. 02 2 Min. Insts. 801. (330) CHAPTER XIX. WASTE. § 379. Definition and General Nature of Waste. 380. Several Kinds of Waste. 381. I. Voluntary Waste. 1. Destruction or Altering of Houses. 382. 2. Cutting Timber. 383. 3. Changing the Course of Husbandry. 384. 4. Taking of Earth, Stone, Minerals, etc., by Tenant. 385. 5. Removal of Fixtures, or Injuries Thereto. 386. II. Permissive Waste. 387. III. Equitable Waste. 1. Destruction of Ornamental and Shade Trees. 388. 2. Malicious Waste by Tenant without Impeachment of Waste. 389. 3. Protection of Equitable Owners. 390. The Tenants Punishable for Waste. I. At Common Law. 391. II. Tenants Punishable In England by Statute. 392. Punishment for Waste. 393. The Persons Entitled to Complain of Waste. 394. Remedies for Waste. I. Injunction in Equity. 395. II. Trespass on the Case. 396. III. Assumpsit and Covenant. § 379. Definition and General Nature of Waste. Waste isany permanent injury to the inheritance, arising otherwise than by an act of God or of a public enemy, or (perhaps) by an act for which no one is in any manner responsible (such as an accidental fire.) ^ The last, clause of this definition is doubtful at common law, it being said by Lord Coke that the burning of a house by mis- chance is waste,^ and Lord Hardwicke lays down the general prop- osition that the destruction of a house by fire is waste, and the ten- ant must rebuild.^ 1 See 2 MIn. Insts. 112 ; Co. Lit. 53a ; 4 Kent, Com. 82 ; White v. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674; Pynchon v. Stearns, 11 Mete. (JIass.)' .304, 45 Am. Dec. 207 ; McGregor v. Brown, 10 N. T. 114 ; King v. Jliller, 09 N. C. 583, 6 S. E. 660. In the language of Blackstone, waste is a spoil or destruc- tion, not arising from an act of God or of a public enemy, in houses, gardens, trees, lands, or other corporeal hereditaments, to the disherison of him who has the immediate remainder or reversion in fee simple or fee tall. The gen- eral heads of waste are in houses, in timber, in minerals and in land, although whatever else tends to the destruction or to the depreciation of the value of the inheritance is likewise waste. 2 Bl. Com. 281, 282 ; 3 Th. Co. Lit. 233 et seq. FoT the scope of the phrase "act of God," see notes to 2G L. R. A. 103 ; 95 Am. Dec. 121. 2 Co. Litt. 53a. 8 , 1 Ves. 462. (331) § 379 WASTE GENERAL NATURE. [Ch. 19 But, if this was the rule of the common law, it was changed in England, as to destruction by fire not, arising from the negli- gence of the tenant or his servants, by the statute 6 Anne, c. 31. And in this country the rule, even in the absence of such statutes, seems to be that destruction by accidental fire, at least, does not constitute waste, if, indeed, this exemption does not extend to any destruction not caused by the tenant's voluntary or negligent Set, or that of his servants.* It should be observed that while destruction occasioned, without fault of the tenant, directly by an act of God, as by tempest, light- ning, flood, and the like, or by act of a public enemy, or (according to the American view above enunciated) by pure accident, is not waste, yet if further damage ensue from the tenant's failure prompt- ly to repair, temporarily at least, such injury, as by replacing tem- porarily a roof taken off by tempest, such further damage is waste." But there is no obligation upon the tenant to make general repairs or to restore the premises to the substantial condition in which they were when they received the injury. They must simply be made by the tenant wind and water tight as soon as possible, so that they shall receive no additional damage from the weather, etc." And even though the injury be the direct result of an act of God, yet if the act of God would not have caused such injury except for the previous neglect of the tenant, it is still waste. Thus, if a ten- ant allows leased premises to remain unrepaired so long as to weaken them, so that the building is easily blown down by a storm it ought to have withstood if in proper condition, it is waste. And so if retaining walls, intended to keep out the inroads of water, are overthrown by a sudden flood, it is still waste if the destruction be the result of the tenant's neglect to repair or duly to secure them.'' § 380. Several Kinds of Waste. Waste may be classified into legal waste, or waste recognized in a court of law, and equitable waste, recognized in a court of equity only. Legal waste is divided into voluntary and permissive. Voluntary waste is the result of the tenant's acts of commission, as the unauthorized destruction of houses or cutting down of trees or digging of minerals ; while permissive waste results from acts *4 Kent, Com. 82; United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65. But see post, § 3SG, and 2 Min. Insts. 615, as to destruction caused by a stran- ger, or by any cause, not an act of God or of a public enemy. 5 2 Min. Insts. 601, 614 ; ante, § 356. « 2 Min. Insts. 601 ; 2 Bl. Com. 281 ; 3 Tli. Co. Ht. 235, 236, note (E) ; Bac. Abr. Waste (C) and (E). 1 2 Min. Insts. 602 ; 3 Tb. Co. Lit. 236, note (P) ; Bac. Abr. Waste (E). (332) Ch. 19] WASTE DBSTEUCTION OR ALTERATION OF HOUSE. § 381 of omission or the negligence of the tenant, as by suffering a house to fall by the neglect of necessary repairs, or by the negligent break- ing of doors, windows, etc., or, possibly, from the deliberate or neg- ligent act of strangers or from pure accident.' We shall therefore consider: (1) Voluntary waste; (2) permis- sive waste ; and (3) equitable waste. § 381. I. Voluntary Waste — 1. Destruction or Altering of Houses. To pull down a house and rebuild it less than before is certainly waste; and it seems at common law to be no less waste to rebuild it greater than before, because, it is said, it is to the prejudice of the owner of the inheritance, for it is more charge to repair ! A better reason is that the consequent alteration in the description of the premises might impair the evidence of the own- er's title. Indeed, Lord Coke holds it to be waste even to build a new house where there was none before.' But in England, at least, this seems to be no longer the rule if the value of the land has been increased by the rebuilding — a doctrine much more con- formable to modern ideas of justice and reason.^" Burning a house, whether by negligence or mischance, seems also in England to have been at common law regarded as waste. But by statute 6 Anne, c. 31, no action is to be prosecuted against any person in whose house or chamber any fire accidentally begins. In this country, however, it is believed that this would not be regard- ed as waste, even in the absence of a statute corresponding to 6 Anne, c. 31." So, at common law, any alteration in a house is waste, whether for the better or the worse. Thus it is waste to tear down a wall between two rooms, or to convert a hall or a parlor into a stable, or to pull down an attic overhead, or to remove a door or window. And so it was formerly waste to convert a house of one descrip- tion into a different one, though it be of more value, because, it is said, the alteration in the nature of the thing may make it less fit for the owner's purpose, and at all events may impair the evidence of the identity of the property. '^^ It is probable, however, in mod- 8 2 Min. Insts. 601. « 2 Mln. Insts. 602 ; 3 Th. Co. Lit. 233, note (A), 235, note (C) ; Smyth v. Carter, 18 Beav. 78; 'Cole v. Green, 1 Lev. 309; City of London v. Greynie, Cro. (Jac.) 181 ; Young v. Spencer, 10 B. & Cr. 145 ; Davenport v. Magoon, 13 Or. 3, 4 Pa<;. 299, 57 Am. Rep. 1 ; Dooley v. StringliarQ, 4 Utah, 107, 7 Pac. 405. 10 Doherty v. Allman, 3 App. Cas. 709; Brooke v. Jlernagh, L. R. ]3 Ir. 86. 11 Ante, § 379; 4 Kent, Com. 82; United States v. Bostwlck, 94 U. S. 53, 24 L. Ed. 65. But see 2 Min. Insts. 615. 12 2 Min. Insts. 603; 3 Th. Co. Lit. 235, note (C) ; Bac. Abr. Waste (C) 5, 6; Cole V. Green, l' Lev. 309. (333) § 382 WASTE — CUTTING TIMBER. [Ch. 19 ern times that the rule would be otherwise, if the alteration results in increasing the value of the property. Indeed, it has been so held in England.^^ § 382. Same — 2. Cutting Timber. Timber trees, and fruit trees also, are parcel of the inheritance.^'' The particular tenant, in the absence of contract, is only entitled to the mast or fruit of them, and to the benefit of the shade, but the general ownership remains in the owner of the inheritance. Hence, though severed, they still belong to the owner of the inheritance, whether severed by accident or by wrongful act, and if cut down by the tenant, he is guilty of waste. ^' But this proposition must be taken in subordination to several other important principles ; as, (1) To the great principle that in those regions of country where forests are extensive and cleared land is worth more than it is with the timber and viood growing upon it, so that cutting the timber, instead of injuring the inheritance permanently, rather enhances its value, the cutting of the timber, even for purposes of sale, is not waste.^" (2) To the right of a tenant to cut wood by way of estovers or botes for house-bote, fire-bote, cart-bote and hedge-bote, unless restrained (which is quite usual) by particular covenants or ex- ceptions in the lease. '^^ But this gives the tenant no right to sell the timber, though the proceeds be applied to repairs ; ^* and he should not cut growing timber, so long as he has dead or inferior wood at his disposal that would answer his purpose.^' (3) To the right which the tenant has at any reasonable time he pleases to cut down underwood for the purpose of thinning the 13 Doherty v. Allman, 3 App. Cas. 709 ; Brooke v. Mernagli, L. R. 23 Ir. 86. i^As to ornamental and shade trees, ttiey are protected in equity, and it Is equitable waste to cut them down, but it is not legal waste. Post, § 387. 15 Ante, § 40; 2 Min. Insts. 603. 16 2 Min. Insts. 603; Mooers v. Wait, 3 Wend. (N. Y.) 104, 20 Am. Dec. 667; Jackson v. Brownson, 7 Johns. (N. T.) 227, 5 Am. Dec. 258 ; Sayers v. Hoskin- son, 110 Pa. 473, 1 Atl. 308 ; King v. Miller, 99 N. C. 683, 6 S. E. 660 ; Davis V. Gilliam, 40 N. C. 308 ; Cannon v. Barry, 59 Miss. 289 ; Johnson v. Johnson, 2 Hill Eq. (S. G.) 277, 29 Am. Dec. 72 ; Disher v. Disher, 45 Neb. 100, 63 N. W. 368. See Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733 ; Macaulay V. Dismal Swamp Land Co., 2 Rob. (Va.) 507. i7Ante, § 39. 18 2 Min. Insts. 603 ; 3 Th. Go. Lit. 239 ; Lee v. Alston, 1 Ves. Jr. 78 ; Gower V. Eyre, Gowp. 160 ; Padelford v. Padelford, 7 Pick. (Mass.) 152 ; Gardner v. Dering, 1 Paige (N. Y.) 573 ; Galvert v. Rice, 91 Ky. 533, 16 S. W. 351, 34 Am. St. Rep. 240 ; Walters v. Hutchins, 29 Ind. 136. 19 Doe V. Wilson, 11 East, 56; Padelford v. Padelford, 7 Pick. (Mass.) 152; Johnson v. Johnson, 18 N. H. 594. (334) Oh. 19] WASTE REMOVAL OF MINERAL. § 384 growth or otherwise, provided he does not destroy the stubs from which it grows nor injure the young timber and subsequent growth.^" § 383. Same — 3. Changing the Course of Husbandry. To con- vert land from one species to another, as arable into meadow, or meadow into pasture, or either into wood, or e converso, etc., these are all acts of waste ; not only because it changes the course of hus- bandry contrary, perhaps, to the designs and plans of the owner of the inheritance, but because also it afifects the evidence as touch- ing the identity of the estate, although this latter reason would be generally of little weight in the United States, where lands are commonly described by metes and bounds, and seldom by the char- acter which they happen to have at the time, as arable, pasture, etc. But if lands be sometimes meadow, and then pasture, and then arable, the conversion of it from one to another is admitted not to be waste in England ; and hence it may be concluded that it is never waste thus to change the character of the land, according to the course of approved husbandry.^^ § 384. Same — i. Taking of Earth, Stone, Minerals, etc., by Tenant. A particular tenant for life, for years or at will has in gen- eral no right to take clay, gravel, sand, soil, and the like from the leased premises, unless it was one of the recognized modes of mak- ing profit from the land before the commencement of the tenancy,^^ or unless it be in the nature of estovers for the repair or irnprove- ment of the leased premises. ^^ To open the land, hitherto unopened, and take away its mineral contents, such as metal, coal, marble or other rock, or oil or gas or other substance of the land, is waste, for it is a detriment to the inheritance ; but if the mines, pits or quarries were open before, it is not waste for the tenant to continue the working of them for his own benefit, it being regarded as a taking of the regular profits of the land." 2 2 Jlin. Insts. 603, 604 ; 2 Bl. Com. 281 ; Phillips v. Smith, 14 JI. & W. 589. 212 Min. Insts. 604; 2 Bl. Com. 282; Bac. Abr. Waste (C), 1. The rights of an agricultural tenant with respect to manure made upon the premises has been already quite fully considered. Ante, § 31. 22 United States v. Bostwick, 94 V. S. 53, 24 L. Ed. 65 ; University v. Tuck- er, 31 W. Va. 621, 8 S. E. 410 ; Coates v. Cheever, 1 Cow. fN. T.) 460 ; Reerl V. Reed, 16 N. J. Eq. 248 ; Smith v. City of Rome, 19 Ga. 89, 63 Am. Dec. 298. See ante, § 266. 23 2 Min. Insts. 606; Co. Lit. 53b; Bac. Abr. Waste (C), 3. 24 2 Min. Insts. 605 ; Co. Lit. 54b ; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 733 ; Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 56 Am. St. Rep. 884, 31 L. R. A. 128 ; Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308 ; Lynn's Ap- peal, 31 Pa. 44, 72 Am. Dec. 721 ; Gaines v. Green Pond Iron Min. Co., 33 N. J. (335) § 384 WASTE — REMOVAL OF MINERAL. [Ch. 19 But if before the commencement of the tenancy the mine or quarry was worked solely for the benefit of the premises, as to se- cure materials for the repair of buildings thereon, and not for gen- eral purposes, as for sale, the tenant, it seems, is restricted to the same or similar uses.^^ Whether the discontinuance of work in a mine or quarry, prior to the commencement of the lease, prevents the tenant from work- ing it, depends upon whether the discontinuance is such as to show an apparent intention on the part of the previous owner to devote the land to other uses and to abandon the mine or quarry finally. If so, the tenant must not work it, though he may do so if the dis- continuance were merely from want of capital, the lack of a market for the output, etc.^" It is considered the same mine or quarry where it consists of the same stratum or vein of mineral deposit or a vein or stratum underneath the same, and capable of being reached by sinking the original shaft to a greater depth. But if the vein is the same, the tenant is not obliged to confine himself to the original shaft. He may sink new ones at pleasure, within the limits of the land, but so only as to reach the same mine, not a new one.-" It is worth while to observe that when one makes a lease for life or years of land containing minerals, without mention of mines in the lease, the lessee may dig and take the profits of such mines only as were open at the time of the making of the lease. And if the owner lease the land, "together with the mines therein," and there are on the land some mines then open, this shall extend to the open mines alone, and not to any as yet unwrought. But if at the mak- ing of the lease there be no open mines on the land, and the lease is made of the lands, "together with all mines therein," the lessee may open new mines, for otherwise the mention of the mines would be of no effect.'^* Eq. 003 ; McCord v. Oakland Quicksilver Jliu. Co., C4 Cal. 134, 27 Pac. 8G3, 40 Am. Rep. 686. 2s Ellas V. Snowdon Slate Quarries Co., 4 Apjs. Cas. 4.j4; Ward v. Carp River Iron Co., 47 Mich. 65, 10 N. W. 109. But see Neel v. Neel, 10 Pa. 323. 2 6 Bagot V. Bagot, 32 Beav. 509; Stoughton v. Leigli, 1 Taunt. 402; Gaines V. Green Pond Iron Min. Co., 32 N. J. Eq. 86. 2- 2 Min. Insts. 605; 3 Th. Co. Lit 23T, note (H) ; Bac. Abr. Waste (C), 8: Whitefleia v. Dewit, 2 P. Wms. 242 ; Clavering v. Claveriug, 2 P. Wms. 388 ; Stoughton V. Leigh, 1 Taunt. 402 ; Ellas v. Snovs-don Slate Quarries Co., 4 App. Cas. 406 ; Crouch v. Puryear, 1 Rand. (A'a.) 258. 10 Am. Dec. 528 ; Findlay v. Smith, 6 Munf. (Va.) 134, 8 Am. Dec. 738 ; Billings v. Taj-lor, 10 Pick. (Mass.) 400, 20 Am. Dec. 533 ; Irwin v. Covode, 24 Pa. 162 ; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603. 28 2 Min. Insts. 605; 3 Th. Co. Lit. 237; Bac. Abr. Waste (C), 3; Saunders' (336) Ch. 19] WASTE — UESTiiUCTlON OF SHADE TKEliS. § 387 § 385. Same — 5. Removal of Fixtures, or Injuries Thereto. The principles determining whether particular chattels affixed to the freehold are to be regarded as real or personal fixtures, and regu- lating the right of the tenant to remove them and deal with them as his own, have been heretofore noted at length.^' Suffice it to say here that unless the fixture comes within one of the classes which the tenant is permitted to carry away upon the termination of his estate, it ceases to be his property when he annexes it to the land, and he is liable as for waste upon his injury or removal of it. § 386. II. Permissive Waste. Permissive, sometimes called neg- ligent, waste is generally defined as matter of omission, such as suffering a house to fall or deteriorate for want of necessary re- pairs.^" It would seem, however, to be somewhat more comprehensive than this language would imply. Thus it would certainly em- brace negligent acts of destruction (unless indeed, such acts are re- garded as acts of commission and the resulting waste as voluntary waste). And it has been held to be waste on the part of the ten- ant if the destruction be done by a mob.'^ If this be correct, it would seem that it must also be waste if the injury be done by a single stranger; ^^ and there is an excellent reason for this, in that the stranger in injuring the premises is guilty of a trespass, for which, being a wrong to the possession, an action lies only by the tenant in possession, and the owner of the inheritance would be left remediless for the injury to the inheritance, unless he be allowed to hold the tenant responsible, leaving the latter to his action against the wrongdoer. ^^ § 387. III. Equitable Waste— 1. Destruction of Ornamental and Shade Trees. There are some acts and omissions really very damaging to property, of which yet the common law, originating amongst an uncultured- and unrefined people, takes no notice; e. g., Case, .3 Co. ]2; Astry v. Ballard, 2 Lev. ISo; Lord Ross v. Whitman, 14 M. vt W. 870. See ante, § . -DAnte, § 22 et seq. 30 2 Min. Insts. 614; 2 Bl. Com. 218; Anworth v. Johnson, 5 Car. & P. 239; Suydam v. Jackson, 54 X. T. 450 ; Townshend v. Moore, 33 N. J. Law, 284. 31 White V. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674 ; 2 Jlin. Insts. 615. 32 2 Jlin. Insts. 615; Fay v. Brewer, 3 Pick. (Slass.) 203: Austin v. Hudson River R. Co., 25 N. Y. 334 ; Powell v. Dayton, S. & G. R., R. Co., 16 Or. 33, 16, Pac. 863, 8 Am. St. Rep. 251. 33 But in America, at Iea.st, it is believed that it is not waste if the destrut"- tion occurs from pure accident for which no one can be held responsible, as in case of fire spreading from house to house, etc. Ante, § 379. 'MiNOB & W.Reai, Pkop.— 22 (337) § 387 WASTE DESTRUCTION OF SHADE TREES. [Oh. 19 the destruction of ornamental, shelter and shade trees, etc. In the -progressive refinement of society this was felt to be an increasing grievance, and at length the Court of Chancery, with very doubt- ful propriety (the proper recourse being to the Legislature to change the law), undertook in such cases to afford relief, thus giving rise to one instance of what has come to be known as equita- ble waste, being cognizable nowhere else but in equity.'* It is certainly a just cause of reproach to the common-law courts that after those appendages of ornamental and sheltering trees, etc., had come to be recognized as adding materially to the annual and to the fee-simple value of tenements occupied as residences, those courts should still subbornly have refused to admit that the destruction of such things, although it was so detrimental to the inheritance, constituted waste, thereby obliging landlords to go for protection into courts of equity. Thus, in Packington v. Packing- ton,'" Lord Hardwicke restrained a t'^rant for life without im- peachment of waste from cutting down ornamental trees. And this precedent has since been followed in a number of cases, limiting the interposition of equity at length to such trees or shrubs as are planted or growing for ornament or for shade and shelter.'^ § 388. Same — 2. Malicious Waste by Tenant without Impeach- ment of Waste. Another instance of equitable interposition, which is classed as equitable waste, is where a tenant without impeach- ment of waste is guilty of making an unconscientious use of his power by willful, malicious, extravagant or "humorous" destruction of the premises.'^ This principle seems to have been first declared and acted on by Lord Nottingham in Abrahall v. Bubb,'* but it was later applied by Lord Cowper in the much more famous case of Vane v. Lord Barnard,'" so that that case is often referred to, erroneously, as having established the doctrine. Lord Barnard was tenant for life 3i2 Mln. Insts. 602; 2 Story, Bq. Jur. § 915; Bac. Abr. Waste (N) ; Down- shlre V. Sandys, 6 Ves. 107 ; Burgess v. Lamb, 16 Ves. 185 ; Harris v. Thomas, 1 Hen. & JI. (Va.) 18 ; Kane v. Vandenburgh, 1 Johns. Ch. (X. Y.) 12. 3 5 3 Atk. 215, 216; 2 Min. Insts. 605. 3 8 Chamberlayne v. Dummer, 1 Bro. Ch. 16(i; Downshire v. Sandys, 6 Ves. 106 ; Tamworth v. Ferrers, 6 Ves. 419 ; Williams v. McXamara, 8 Ves. 70 ; Bui-gees v. Lamb, lij Ves. 185 ; 2 Mln. Insts. 605. But see Stevens v. Rose, 69 Mich. 259, 37 X. W. 205 ; Duncombe v. Felt, 81 Mich. 332, 45 N. W. 1004. 3 7 2 Min. Insts. 616. 38 2 Swanst. 172, Freem. 53. 39 2 Vern. 738. See Chamberlayne v. Dummer, 3 Bro. Ch. 565, note (a) ; Downshire v. Sandys, 6 Ves. 110 ; Stevens v. Rose, 69 Mich. 259, 37 N. W. 205 ; Clement v. Wheeler, 25 X. H. 361 ; Bac. Abr. Waste (N) ; 2 Story, Eq. Jur. i 915 ; 2 Min. Insts. 617. (338) Ch. 19] WASTE TENANTS LIABLE AT COMMON LAW. § BQO of Raby Castle, without impeachment of waste, remainder to his son, against whom, having conceived some displeasure, he got two hundred workmen together, and of a sudden, in a few days, stripped the castle of the lead, iron, glass doors and boards, etc., to the value of i3,000. Lord Chancellor Cowper granted an in- junction to stay further waste, and decreed Lord Barnard to re- pair the injury he had done to the castle, under the direction of one -of the masters. § 389. Same — 3. Protection of Equitable Owners. A third in- stance of equitable waste is where the party aggrieved has equitable rights only; and, indeed, it has been said that the courts of equity will grant an injunction to stop waste more strongly where there is a trust estate. Thus, for instance, in case of a mortgage, or other lien, express or implied, if the party in possession, whether mort- gagor or mortgagee, commits waste, or threatens to commit it, an injunction will be granted, although (indeed, because) there is no remedy at law.*" § 390. The Tenants Punishable for Waste— I. At Common Law. A very brief reflection will show that an absolute tenant in fee simple, with no incumbrance or charge on the premises, can- not usually be punishable, or in any wise accountable, for waste, how great soever the destruction lys indiscretion or caprice may prompt him to commit. His heir, to be sure, may be the sufferer, with a marred inheritance, but nemo est hasres viventis ; and be- sides, he has it in his power, by alienation in his lifetime, or by devise, to disappoint the expectations of his next of kin, who would otherwise have been his heirs, so that they have no fixed interest in the inheritance until it actually descends upon them. Whilst, therefore, waste of the premises may be as to them undoubtedly damnum, it is damnum absque injuria. *'■ Tenant in tail, and indeed every tenant of the inheritance, is likewise privileged to commit what waste he pleases, by virtue of his ownership of the inheritance; for since waste is a destruc- tion or permanent injury of the inheritance, how can the owner ■of the inheritance be accountable or punishable therefor? Always supposing that there is no charge or incumbrance thereon; for, if there be such charge or incumbrance, the person entitled thereto has his security thereby lessened and impaired, and may reason- ably complain of waste, and will in equity be protected against it.*^ io 2 Min. Insts. 617 ; 2 Story, Eq. Jur. § 914 ; Clarke v. Curtis, 11 Leigh (Va.) 559, 37 Am. Dec. 625. 41 2 Min. Insts. 617; 3 Bl. Com. 224. 4 2 2 Min. Insts. 617; 2 Bl. Com. 115; Clarke v. Curtis, 11 Leigh (Va.) 559, 37 Am. Dec. 625. (339) § 390 WASTE — TENANTS LIABLE AT COMMON LAW. [Ch. 19 No tenant, therefore, is accountable for waste, except one who has an estate not of inheritance ; and at common law those tenants only of estates not of inheritance are so punishable who come to their several estates by act of the law — that is, tenants by the cur- tesy, tenants in dower, and guardians in chivalry. Those tenants of particular estates who come in by the act of the parties are at common law liable not otherwise than upon their covenants; and if the landlord make no provision, by express agreement, against waste, he is in those cases (independently of statute) without remedy, and is left to sufifer the consequences of his neglect.*^ § 391. Same— II. Tenants Punishable in England by Statute. In favor of the owner of the inheritance, it was provided by the statute of Marlebridge (52 Hen. Ill, c. 23, A. D. 1268) that a man from henceforth shall have a writ of waste against him that holds by the law of England (that is, by curtesy), or otherwise for term of life, or for term of years, or a woman in dower. So that for more than six hundred years past in England all tenants for life or for years have been punishable for waste, both permissive and volun- tary, unless their leases were made, as sometimes they are, without impeachment .of waste (absque impetitione vasti) ; that is, that no man shall sue the tenant (impetere) for waste committed or suf- fered. But tenant in tail after possibility of issue extinct is not impeachable for waste, because his estate, at its creation, was an estate of inheritance, and so not within the statute. It is not to be- understood, however, when one is without impeachment of waste, that he is at liberty to commit in the premises what destruction soever it may please him. The original doctrine, indeed, was that the privilege merely exempted the tenant from the penalties of the statute of Gloucester, 6 Edward I, c. 5 (viz., forfeiture of the place wasted, and treble damages), and did not prevent the property in timber severed from the land from passing to the landlord. But ultimately it was settled that the privilege extended also to vest such timber in the tenant, and that the only limitation was that the waste should not be malicious, extravagant, or "humorous." ** Neither, under the statute of Marlebridge and Gloucester, does an action for waste lie against a tenant at will, the statutes applv- ing in terms only to tenants for life and for years. But although a tenant at will cannot be sued for waste eo nomine, yet the com- , mission of an act of destruction, which in a tenant for years or 43 2 Min. Insts. 618; 2 Bl. Com. 282; 3 Tli. Co. Lit. 247; Bac. Abr. Waste (H). "Ante, § 382; 2 Min. Insts. G18, 619; 2 Story, Eq. Jur. § 915; Bac. Abr.. Waste (X). (340) Ch. 19] WASTE PERSONS ENTITLED TO COMPLAIN. § 393 life would be waste, determines the estate of tenant at will, and he is then liable to an action for the waste as for a trespass. Hence it is frequently, but inaccurately, said that tenant at will is liable for voluntary waste, meaning that he is liable for such acts as in other tenants are voluntary waste, but in him are trespasses. For permissive waste, it is established that, under the statutes in ques- tion, tenant at will is not liable, but only by virtue of express stip- ulations.*^ § 392. Punishment for Waste. At common law the punishment for waste was merely the actual damage thereby occasioned to the owner of the inheritance, in contradistinction to the treble damages and forfeiture of the place wasted exacted by the statute of Glou- cester.*" § 393. The Persons Entitled to Complain of Waste. As waste is a permanent injury to the inheritance, it follows that it cannot be committed, at least to be properly styled waste, save against one who is the owner of the inheritance, and not against one who is proprietor merely of a less estate, notwithstanding he may be in- jured by the act in question. It is also an established principle of the common law that the party complaining must have the imme- diate inheritance without an intermediate estate of freehold, for an intervening estate for years is no impediment. Hence, if a lease be made to A. for life, remainder to B. for life, remainder to C. in fee, no action of waste lies for C. during the continuance of B.'s estate, but only in case B. dies, or surrenders his estate. But if the lease were to A. for life, remainder to B. for years, remainder to C. in fee, an action lies presently for any waste committed by A. dar- ing the term in remainder, the mean term for years being no im- pediment.*' But although no action of waste lies where there is such an in- termediate estate of freehold, yet if waste be done by felling tim- ber, the person entitled to the inheritance may seize or maintain an action for the trees; for as soon as they are severed from the land by an act of God, or of the tenant, or otherwise, they become the property of him who has the first estate of inheritance.*' Still it is manifest that the reversioner or remainderman, al- thpugh he has not the immediate inheritance, and notwithstanding *5 2 Min. Insts. 619; 1 Th. Co. Lit. 644, 645, note (19); Bac. Abr. Waste (H). ie 6 Edw. I, c. 5. See 2 Min. Insts. 621 ; 2 Bl. Com. 283. 4T 2 Min. Insts. 622 ; 3 Th. Co. Lit. 24.5. 48 2 Min. Insts. 622; 3 TTi. Co. Lit. 246, note (Q) ; Pagets' Case, 5 Co. 79b; Bowles' Case. 11 Co. 81b ; Plgot v. Bullock, 1 Ves. Jr. 484 ; Whitefield v. De- wit, 2 P. Wms. 241. (341) § 393 WASTE PERSONS ENTITLED TO COMPLAIN. [Ch. 19 the existence of an intervening freehold, may sufifer damage, as the person entitled to such interposed estate also may, from any such destruction or permanent injury to the inheritance; and it would be a reproach to the law if it allowed no redress for that damage, simply because the wrong did not amount to what is technically styled waste. Accordingly, such wrong committed against a per- son who either has not the inheritance, or not the immediate rever- sion or remainder in fee, is designated quasi waste, and is re- dressed, not by the action of waste, but by action on the case, and that whether the waste be voluntary or permissive.*' And upon the principle that waste is a wrong not in general ca- pable of being completely repaired by damages to all interested in the premises, whether they have an inheritance or not, or the im- mediate reversion or not, a court of equity is accustomed to inter- pose by way of injunction to prohibit its commission, and, as inci- dent thereto, to compel an account of the damage already done. Thus a tenant for life in remainder, though he has no property in the timber which may be severed, nor any right to cut it himself when the estate comes into his possession, yet has such an inter- est in the mast and shade of the trees as will justify a court of equi- ty, at his instance, in enjoining the tenant from cutting them."" And although, in such case, there be no person capable of main- taining an action at law, and although, yet further, the party guilty of the waste dies, so that the wrong is finally remediless at common law, yet, wherever the question is brought within the cognizance of equity, that court says that unauthorized waste shall not be com- rnitted with impunity; and the produce of the wrongful act shall not redound to him who perpetrated it, but shall be laid up for the benefit of the contingent remainderman, and the whole succession of limitations.^^ Upon like principles, wherever there is an equitable lien (e. g., that of a vendor), or, indeed, any equitable estate, the party claim- ing it may obtain redress for and against the waste by injunction in equity."^ 4!) 2 Mill. Insts. 623; 3 Th. Co. Lit. 241, note (M) ; Greene v. Cole, 2 Saund. -.'2, note (7) ; Kinlyside v. Thornton, 2 W. Bl. 1111 ; Harnett v. Maitland, 10 M. & W. 202 ; White y. Wagner, 4 Har. & J. (Md.) 373, 7 Am. Dec. 674 ; Fay v. Brewer, 3 Pick. (Mass.) 203. 50 2 Mln. Insts. 023, 024: Perrot v, Perrot, 3 Atk. 95; Roswell's Case, 1 Roll. Abr. 377 ; Be\Yick v. Whitfield, 3 P. Wms. 206. 268. note (F). 512 Min. Insts. 024; 2 Bl. Com. 281, note (18); Bishop of Winchester v. Knight, 1 P. Wms. 407 ; Anon., 1 Ves. ,Ir. 93 : Williams v. Bolton, 1 Cox, 72 ; Powlet V. Bolton, 3 Ves. 377; Tullit t. Tnllit, 1 Ambl. 376; Pigot v. Bullock, 1 Ves. Jr. 479, 484, notes. ^ 52 2 Min. Insts. 024 ; Clarke v. Curtis, '11 Leigh (A'a.) 559, 37 Am. Dec. G2.-. (342) Oh. 19] WASTE — REMEDIES INJUNCTION. § 394 Tenants in common, joint tenants, and coparceners are not al- lowed, at common law, to sue one another for waste of the prem- ises, because they may at any time arrest the waste by entering thereon, and possessing themselves of their respective shares. This defect in the law was, in England, remedied by statute 13 Edw. I, c. 22, which, in terms, was applicable to tenants in common alone, but whose equity was held to embrace joint tenants also, although not coparceners, because they could obtain redress by compelling partition. An heir cannot maintain an action for waste done in the time of his ancestor, nor a grantee of the reversion for such as was com- mitted before the grant, because neither had any interest at the time the waste was done.*'' And as waste is a tort not in itself savoring of contract, although it may be a breach of contract, the action for it does not, at com- mon law, survive in favor of the landlord's personal representa- tive, nor against the tenant's, upon the death of either, in pursu- ance of the common-law doctrine that every action for tort dies with the person, although actions ex contractu survive. By statute i Edw. Ill, c. 7, this principle was so altered as to admit of the actions surviving in case of torts to personal propert}- ; but as that statute did not apply to real property, no action for waste survived for or against a decedent's estate under it any more than at com- mon law.^* And in equity, even in England, relief may be had, notwith- standing the wrongdoer's death, in pursuance of the general doc- trine which prevails in the Court of Chancery, in all cases of fraud, that the remedy never dies with the person, but that the court will follow the assets of the party liable to the demand into the hands of his personal representatives.'^'' § 394. Remedies for Waste^" — I. Injunction in Equity. The courts of equity, upon bill exhibited therein, complaining of waste, 53 2 Min. Insts. 62,j ; 3 Tli. Co. Lit. 243. 244, note' (X); Greene v. Cole, 3 Saund. 252, note (7). 54 2 Jlin. Insts. C25 ; 1 Cliitty. PI. 78 et seq., 102 ; 3 Th. Co. Lit. 244, note (O). 55 2 Min. Insts. 625; Bac. Abr. Waste (O) ; Gartli v. Cotton, 1 Yes. Sr. .524. 526. 56 Besides the remedies here discussed, there were formerly, and still are theoretically, two other remedies, namely: (1) The writ of estrepement, occur- ring in a pending suit for lands and prohibiting the defendant from commit- ting waste thereon pending the suit, 2 Min. Insts. C2G ; and (2) the writ of waste, formerly used to recover the place wasted as well as treble damages, and therefore a mixed action. The action of trespass on the case has for all practical purposes taken its place. 2 Min. Insts. 629 et seq., 631. (343) § 394 WASTE REMEDIES — INJUNCTION. [Oh. 19 have for more than two centuries been accustomed to grant an in- junction in order to stay waste, upon the ground that damages con- stitute an inadequate compensation for such an injury as waste, which affects the substance of the inheritance, or that otherwise there is no sufficient remedy at law. And this is now become the most usual way of preventing waste, especially as the court not only inhibits the commission of any future injury of the sort, but as inci- dent thereto obliges the defendant to account for the damages sus- tained by the plaintiff in consequence of that already done." The other considerations which give occasion to a court of eq- uity's interference to prevent waste are very multiform, as that the plaintiff has only an equitable title ; that the waste apprehended is the destruction of timber trees planted or reserved, not for timber, but for ornament, shade or shelter, etc. ; that the tenant, being with- out impeachment of waste, is about to commit a destruction, wan- ton, malicious, or peculiarly ruinous to the property ; that the appre- hended waste will be mischievous to owners of the inheritance not yet in being, or not ascertained ; that the owner of the inheritance colludes with the tenant committing the waste, to the detriment of intervening remaindermen ; that some other collusion exists by which the legal remedies against waste are evaded, or that in any other way a permanent injury to the substance of real property by the tenant will go unredressed unless equity shall intervene. But it must not be forgotten that, wherever there is an adequate redress without such extraordinary aid of the court of equity, its interposi- tion must be denied. ^^ Neither vague apprehension of an intention to commit waste, nor information given by a third person, who states only his belief, but not the grounds of it, will sustain an application for an injunction. The affidavits need not necessarily set out positive acts, but they must state at least explicit threats. A court of equity never grants an injunction on the notion that it will do the defendant no harm, if he does not intend to commit the act in question. Some positive and sufficient reasons must be shown to call for it.^" It will be observed that it is vain to expect the aid of a court of equity, save only in case of equitable waste, if nothing is sought but 67 2 Min. Insts. 627, 628; 3 BI. Com. 227; 4 Kent, Com. 77; Miller v. Wills, 95 Va. 337, 28 S. E. 337 ; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 64 Am. St. Rep. 891, 38 L. R. A. 694 ; Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572. 58 2 Min. Insts. 628; 2 Bl. Com. 282, note (22); Mitford, Eq. PI. 123; 2 Story, Eq. Jur. § 911 et seq. ; Bac. Abr. Waste (N), (0) ; Norway v. Rowe, 19 Ves. 155 ; Clarke v. Curtis, 11 Leigh (Va.) 559, 577, 582, 37 Am. Dec. 625. 68 2 Min. Insts. 628; Hannay v. McEntire, 11 Ves. 54; Ooffln v. Coffin, Jac 72 ; Hext v. Gill, 7 Ch. App. 699. (344) Ch. 19] WASTE — REMEDIES — TRESPASS OX THE CASE. § 395 amends for waste already committed. Equity (except in case of equitable waste) takes cognizance exclusively to avert future waste, but, having once got possession of the cause, will complete the re- dress by compelling the offending tenant to account for the waste done, in order to avoid a needless multiplication of suits."" It is a general rule that, in order to sustain an application for an injunction in restraint of waste, the party making the application must set forth and verify an express and positive title in himself (or in those whose interests he has to support). An hypothetical or disputed title will not suffice. "'^ Hence, when the title is disputed, as between devisee and heir at law^, an injunction to stay waste will not be granted, on the application of either party."^ § 395. Same — II. Trespass on the Case. In former times, when the punishment for waste was the place wasted and treble damages, these were recoverable in a single action known as the writ of waste. This action lay only for technical legal waste, and not for quasi waste," ^ and hence lay only in favor of the owner of the in- heritance. But the action of trespass on the case for waste has long practical- ly superseded the writ of waste, as well in England as in the United States. The plaintiff derives the same benefit from it as from an action of waste in the tenuit ; that is, where the tenant's term is ex- pired, and the landlord, having regained possession of the land, by virtue of his reversion, can, in the nature of things, have no other redress than to recover damages; and although the plaintiff cannot, in an action on the case, recover the place wasted when the tenant is still in possession, as he may do in an action of waste in the tenet, yet this latter action was found, by experience, to be so imperfect and defective a mode of recovering seisin of the place wasted, that the plaintiff derived little or no advantage from it ; and, therefore, where the lease is by deed, care is or ought to be taken to give the lessor power of re-entry in case the lessee, underlessee, or assignee of either, commit any waste or destruction, and an action on the case is then better adapted for the recovery of mere damages than an action of waste in the tenuit. It has also this further advantage over an action of waste, an advantage already repeatedly referred 80 2 ilin. Insts. 629 ; 2 Rob. Pr. (1st Ed.) 230 ; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 64 Am. St. Rep. 891, 38 L. R. A. 694 ; Watson v. Hunter, 5 Jolins. Cb. (N. Y.) 169, 9 Am. Dec. 295 ; Hawley v. Clowes, 2 Johns. Ch. (N. Y.) 122 ; Armstrong v. Wilson, 60 111. 226. 612 Min. Insts. 629; Davis v. Leo, 6 Ves. Jr. 787. «2 2 Min. Insts. 629 ; 2 Bl. Com. 282, note (22) ; Jones v. Jones, 2 Meiiv. 174 ; Smith V. Collyer, 8 Ves. 90. 6 3 Ante, § 392. (345) § 396 WASTE — REMEDIES ASSUMPSIT AND COVENANT. [Oh. 19 to, namely, that it may be brought by him in reversion or remaindef for life or years, as well as in fee, and whether the reversion be im- mediate or not. The action on the case, however, did not at first prevail without considerable opposition, although at length it is definitely established as the usual and the preferable remedy, as well for permissive as for voluntary waste, and as well against the as- signee of the tenant as against the tenant himself.^* § 396. Same — III. Assumpsit , and Covenant. These remedies are treated together because, although at common law they can never be concurrent, yet they are strictly correlative ; the action of covenant lying when the agreement not to commit waste is under seal, and trespass on the case in assumpsit when the agreement is not under seal. For voluntary or commissive waste, trespass on the case is the most usual remedy ; but if there is also a demand for money, as for rent, or for damages for some breach of contract other than the doing of waste, it may be more eligible to join in one suit the claim for damages for waste and that for the money, or for the breach of other contracts, and then the action must be assumpsit or covenant. There seems to be no doubt that, in case of an agreement not to do waste, the landlord has his election, in case of waste done, to bring either case for the waste, or the appropriate action for the breach of the agreement. If by the special agreement the landlord acquires a new remedy, he does not therefore lose that which he had before.*^ And sometimes it will be advantageous to the lessor to prefer the action on the agreement ; for whilst destruction wrought by the act of God, or of a public enemy, or other inevitable accident, is not waste, and therefore no action lies for it as such, yet if the lessee has obliged himself by agreement to rebuild or repair, without mak- ing any exception, he is bound to do it at common law, even though the injury be brought about, without his default, by the act of God, or other inevitable casualty. "* On the other hand, it may sometimes be expedient to eschew the action upon the agreement and bring trespass on the case for the waste. 61 2 Min. Insts. 632; 3 Bl. Com. 227, note (?) ; Jefferson v. Jefferson, 3 Lev. 130 ; Jeffer v. Gifforcl, 4 Burr. 2141 ; Greene v. Cole, 3 Saund. 252, note (7) ; Provost of Queen's College v. Hallett, 14 East, 489; Harnett v. Maitland, 16 M. & W. 257, 262. 65 2 Min. Insts. 633; Kinlyside v. Thornton, 2 W. Bl. 1111, 1113; Greene V. Cole, 3 Saund. 252. note (7) ; Pomfret v. Ricroft, 3 Saund. 323b, note (7). ", 156; 2 Th. Co. Lit. 87, note (h, 2). *^ 2 Min. Insts. 269; 2 Th. Co. Lit. 87, note (L, 2). 48 Post, § 680; ante, § 474; 2 Jliu. Insts. 20'J; Fearue, Rem. 383, note (a). Minor & W.Real Prop.-2(; (401) § 480 CONDITIONS — CONDITIONAL LIMITATIONS. [Ch. 22 hold, being liable to determine, without entry by the grantor or his heirs, upon the happening or not happening of the event indicated, and the subsequent estate taking its place ; e. g., a devise, or grant, etc., to A. and his heirs, but if A. die without having married W., then to Z. in fee.*' Conditional limitations could not exist at common law. They arise only out of certain conveyances owing their existence to stat- utes, the effect of which is to dispense with livery of seisin.^" § 481. Same — Reason Why Conditional Limitation Over is Void at Common Law. As already stated, the reason is because, at com- mon law, in order to give effect to the condition, the grantor, or his heirs, must re-enter, and thus being restored to his or their original estate and seisin, will avoid as much the subsequent limitation as the immediate estate. ^^ Thus, in case of a feoffment with livery at common law "to A. and his heirs on condition that if A. marry Z. then the land shall go to W.," the only way in which A.'s estate can, at common law, be terminated in case of a breach of the condition, is by the re-entry of the feoffer or his heirs, who, upon entering, would be seised of the same estate as they had before the feoffment, which, of course, could not be without destroying the limitation to W., as well as the estate of A.^= Again the subsequent estate is void as a remainder, because by the very definition of a remainder it must not take effect in deroga- tion of the preceding estate, but must await its regular expiration. ^^ Hence, upon a conveyance at common law, with livery of seisin, "to A. for life, but if A. marries W to go at once to B. and his heirs," the estate of B. by the terms of the limitation is not to await the regular expiration of A.'s estate (that is, A.'s death), which is necessary for a valid remainder, but is to cut short and interrupt A.'s estate before its regular expiration, or, as it is expressed, is to take effect in derogation of A.'s estate. The result is, at common law, that A.'s marriage to W. does not ipso facfo terminate A.'s estate, which remains in him until it is terminated by the re-entry of the grantor or his heirs, and upon such re-entry the grantor or his heir is seised of the original estate by paramount title, thus not 49 2 Mm. Insts. 2G9 ; 2 Bl. Com. 155; 2 Th. Co. Lit. 87, note (L, 2), 768, Butler's note II. 5 2 ilin. Insts. 270; 2 Th. Co. Lit. 768, Butler's note II. 61 2 Min. Insts. 268, 270 ; 2 Th. Co. Lit. 97, 99, note (W, 2), 768, Butler's note II. 5 2 Ante, § 474; 2 Min. Insts. 267, 270. 53 2 Min. Insts. 270; 2 Th. Co. Lit. 136, note (F) ; post, §§ 592, 650. ('4021 Ch. 22] CONDITIONS — WHO MAY PBRFOEM. § 483 only destroying A.'s estate ab initio, but at the same time wiping out all subsequent limitations over to others. °* § 482. Same — Conditional Limitation Over Good under Statutes of Uses and Wills. The statutes of uses and of wills having dis- pensed with the notoriety of livery to commence the freehold estate, the corresponding notoriety of entry to terminate the freehold has also been dispensed with in all cases where, upon the happening of a contingency, the land is to go over to another, and so, since the passage of the above-mentioned statutes, B. would take a valid es- tate by way of conditional (or shifting or executory) limitation."^ But if upon th _ happening of the contingency the estate is not to go over to another, but merely to cease and determine, the common- law rule still prevails, and the grantor or his heirs must, in order to terminate the grantee's estate, enter actually or constructively for breach of the condition, or institute an action therefor. § 483. Who may Perform Conditions. The general doctrine is that all persons may perform, or ofifer to perform, the conditions, who have an interest to do so ; that is, who have an interest in the condition on the one side, or in the land on the other. Hence, upon a grant with condition to be void upon the payment of money upon a day named, the grantor's heir, or personal representative, in case of his death before the day, although neither of them be named, may pay or tender the money, and so fulfill the condition, and defeat the grantee's estate. So, also, upon a grant with condition to be void unless the grantee shall pay a certain sum by a day named, if the grantee aliens the property before the day, either he or the alienee may, at the day, perform the condition, by paying or tendering the money ; he, because he has an interest as party and privy in the con- dition, and the alienee, because he has an interest in the land.^" If no day be named for performance of the condition, the time (unless the contrary be expressed) is limited always to the life of him who is to perform it, and in some cases, where that latitude would be productive of injustice, is restricted to a reasonable time. This consideration will sometimes modify the doctrine above stated. Thus, if no day be named for the payment of the money by the grantor in the first case, the time to perform the condition expires with his life, unless the contrary appear, and then, of course, pay- ment cannot be made or tendered by his heir or personal representa- tives, unless they be expressly named. So in the second case, if no day for the payment be appointed, the grantee has not during his 64 Ante, i 474. 64 Ante, § 474:. B5 2 Min. Insts. 270, 271; post, § 680 et seq. fi» 2 Mln. Insts. 278; 2 Th. Co. Lit. 38 et seq. (403) § 483 CONDITIONS — WHO MAY PERFORM. [Ch. 22 life to make it, since it would be unjust that, having the land, hq should retain the money also ; but he or his alienee must pay within a reasonable time, and if he omits to do so the condition is broken, and neither he nor his alienee can afterwards save it by a tender of the money. '^^ A stranger cannot, in general, intrude himself into the business, and a tender of payment by such a one may be denied and disregard- ed, as not being a performance of the condition. To this principle there seem to be but two exceptions, namely, where a stranger ten- ders in the name and on behalf of an infant, or idiot, and where he tenders in the name and on behalf of the proper party, and the pay- ment is accepted by him to whom it is tendered, and afterwards rati- fied by the person who might have made it, for omnis ratihabitio retrotrahitur et mandato asquiparatur.^' § 484. Strictness Demanded in Performance of Conditions — Conditions Precedent. As estates are to arise upon the perform- ance of conditions precedent, they are regarded with liberality, and whilst they must always be fulfilled, not colorably merely, but bona fide and substantially, yet it suffices to perform them according to the intent and meaning, albeit the letter and words cannot be per- formed. This is in pursuance of the maxim which requires words to be construed most strongly against the user of them. But other- wise it is, as we shall see, of conditions subsequent, that destroy an estate ; for they are to be taken strictly, unless it be in certain special cases. And in no case can an estate vest until the condition prece- dent is performed.'^" § 485. Same — Conditions Subsequent. Conditions subsequent go to defeat estates which have vested, and to change the existing state of things. Hence they are regarded less favorably than condi- tions precedent, and must be performed with more strictness, as a general rule."" If a condition consists of divers parts in the conjunctive, whether it be subsequent or precedent, all the parts must be performed, un- less it be impossible to be so performed, when it is to be taken in the disjunctive ; but otherwise it is, if it be in the disjunctive, for then the performance of either will suffice. And if it be both in the con- junctive and disjunctive, the disjunctive is understood to refer to the whole, and to make all disjunctive."^ B7 2 Min. lusts. 278; 2 Tb. Co. Lit. 4.". note (E, 1). 68 2 Mill. Insts. 2T8, 279; 2 Th. Oo. Lit. 43. 68 2 Min. Insts. 292; 2 Th. Ck). Lit. 58, 59. 60 2 Min. Insts. 292, 29.3; 2 Th. Co. Lit. 59. 61 2 Min. Insts. 203 ; 2 Tli. Co. Lit. 58, 59, notes (M, 1), (X, 1). (404) Ch. 22] CONDITIONS TIME OF PERFORMANCE. § 488 § 486. Time of Performance of Conditions. If a particular time is appointed for performance, the condition must be performed at or before the appointed time, and the right to perform passes to an aHenee or to the personal representative, or may descend to the heir.''^ But, if no particular time is appointed for performance, it must in general be performed at least within the lifetime of the party obligated to perform, and when that latitude would be productive of injustice it must be performed within a reasonable time."' § 487. Same — Condition When to be Performed within a Rea- sonable Time. The condition must be performed within a reason- able time, when the act to be done is merely transitory (not local), e. g., the payment of money, the delivery of a deed, etc. ; or where promptness of performance is needful in order to protect the rights of the other parties, e. g., feoffment on condition that feoffee pay, or in case of a conditional sale, etc. That the feoffee should have the estate, and retain the money also, indefinitely, is not just, and there- fore he or his alienee must pay within a reasonable time.^* § 488. Same — When Party Has During Life to Perform Condi- tion. Where prompt performance of the condition in no wise con- cerns the other party, the time is protracted through the performer's life, e. g., feoffment on condition that if feoffor pays, etc., he may re-enter. Here, since the feoffee is in possession of the land, it is supposed not to concern his interests how long the feoffor may de- lay the performance, and so the feoffor has his lifetime in which to pay.*^ But the party to perform the condition is liable to be hastened by request where the act to be done is local (and not transitory), and it concerns the other party that it be done promptly; e. g., con- dition that feoffee shall re-enfeoff feoffor."^ Furthermore, where the performance of a condition depends in any way upon the pleasure of the performee, as regards the manner or time of performance, or as to whether it shall be performed at all, or depends upon information peculiarly in his possession, he must request performance of the condition before he can claim a for- feiture."' 6 2 2 Min. Insts. 293, 278 ; ante, § 483 ; 2 Th. Co. Lit. 45. 6 3 2 Min. Insts. 293; 2 Th. Co. Lit. 45, note (B, 1). 6* 2 Min. Insts. 293 ; 2 Th. Co. Lit. 45, note (E, 1) ; Bac. Abr. Conditions (P, 3). See Tuggle v. Berkeley, 101 Va. 83, 43 S. E. 199. 65 2 Min. Insts. 293. 86 2 Min. Insts. 294; 2 Th. Co. Lit. 47; Bac. Abr. Conditions (P, 3). 6 7 1 Tiffany, Real Prop. § 71; 1 Smith, Lead. Cas. 132; Whitton v. Whit- ton, 38 X. H. 127, 75 Am. Dec. 163; Bradstreet v. Clark, 21 Pick. (Mass.) 389; (405) § 489 CONDITIONS — ^PLACB OP PEHFORMANCE. [Ch. 22 § 489. Place of Performance of Conditions. If a particular place for the performance be named, that is of course the proper place for the performance of the condition, unless subsequently changed by mutual consent.'* If no certain place be appointed, the place of performance is to be determined by adverting to the character of the act to be done in performance of the condition ; a distinction being made between conditions to pay money and conditions to do a collateral thing."" § 490. Same — Condition to Pay Money. If the condition be to pay rent, in the absence of stipulation as to the place of payment, the rule of law is that it must be paid upon the leased premises, or tendered or demanded there.'" But if the condition is to pay money generally, it is to be per- formed by payment to the payee wherever he may be found within the state, and it is the payer's business to seek him out.'^ § 491. Same— Condition to Do a Collateral Thing.— 1. To De- liver an Article. If the performer of the condition be the grower or manufacturer of, or a dealer in, the article to be delivered, the place of delivery, in the absence of a contrary agreement, is the performer's farm, factory, or shop.'^ If the performer of the condition is not a grower, manufacturer or dealer, and the articles are easily p,ortable, such as cattle and the like, they are deliverable at the residence of the performee; ''^ but if they are cumbrous and not easily portable, such as timber, they are deliverable where the performee shall appoint, or if he, upon application, names no place, or an unreasonable one, then at such reasonable and convenient place as the performer shall appoint giv- ing the performee reasonable previous notice, if practicable.''* § 492. Same— 2. Collateral Condition Other than the Delivery of Articles. The condition is to be performed where the performee shall reasonably appoint, or if, when applied to, he names no place, Merrifield v. Cobleigh, 4 Cush. (Mass.) 182; Irvine v. Irvine (Ky.) 15 S. W. 311 ; Royal v. Aultman, 116 Ind. 424, 19 N. E. 202, 2 L. R. A. 526. 6 8 2 ilin. Insts. 294. 6 9 2 Min. Insts. 294. 70 2 Min. Insts. 294; 2 Th. Co. Lit. 40; Bac. Abr. Conditions (P, 4). 71 2 Min. Insts. 294; 2 Th. Co. Lit. 47 et seq.; Bac. Abr. Conditions (P, 4). '22 Min. Insts. 294; 2 Greenleaf's Cruise, 29; 2 Greeuleaf, Ev. § 609 et seq. '3 2 Min. Insts. 294; 2 Greenleaf's Cruise, 29; 2 Greenleaf, Bv. § 609 et seq. '4 2 Min. Insts. 294; 2 Greenleaf's Cruise, 29; 2 Greenleaf, Ev. § 009 et seq. (406) Ch. 22] CONDITIONS FAILURE TO PERFORM. § 4:95 or an unreasonable one, then where the performer shall reasonably appoint, giving the performee reasonable previous notice, if practi- cable. '^ § 493. Default of Performee as Excuse for Nonperformance of Condition. It is a general maxim of the law that a man shall not profit by his own wrong. Hence, if the performee is absent at the proper time and place, when his presence is needful to the act of performance, this practically constitutes a waiver of performance, and the obligor is excused from performing the condition at any other time or place. ^° And the positive and deliberate obstruction by the performee of the performance of the condition a fortiori excuses nonperform- ance.'^ § 494. Same — Tender of Performance and Refusal. This will also excuse the obligor from performing the condition. Thus, if a grantor on condition to pay money (as a mortgago.r) at the day and place appointed makes a legal tender of the money to the gran- tee, and it is refused, or if the condition be that the grantee shall enfeoff, and at the appointed day and place he offers to enfeoff, and it is refused, in these cases the tender and refusal are equivalent to performance, so far as the condition is concerned. And if the condi- tion be to do a collateral thing, or to pay money, if it is a sum in gross, collateral to the land, the benefit thereof is, by the tender and refusal, wholly and forever lost, there being no remedy therefor at law. If there were a covenant or promise to pay the money, or to do the collateral thing, tender and refusal do not necessarily extin- guish that, since, although the condition be gone, the covenant re- mains, and may be enforced by action, if the covenantor is in de- fault. '^ § 495. Same — Performee's Failure to Do the First Act. Thus, if previous notice or request is required, or any precedent condition is to be fulfilled by the performee, the omission of such previous notice, request, or antecedent condition excuses nonperformance by the obligor.'" Whether any stipulation is a condition precedent to the perform- ance of the condition in question is sometimes a perplexing ques- tion. It is admitted to depend upon the intention of the parties, as 75 2 Min. lusts. 295; 2 Greenleaf s Cruise, 29; 2 Greenleaf, Ev. § 609 et seq. 76 2 Min. Insts. 297; Dumpor's Case, 4 Co. 119b, 1 Smith, Lead. Cas. 47 et seq., 105 et seq. ; post, § 497. 77 2 Min. Insts. 297; 2 Greenleaf s Cruise, 34. 78 2 Min. Insts. 297; 2 Tli. Co. Lit 68 et seq. 79 2 Min. Insts. 298; St. Albans ¥. Shore, 1 H. Bl. 270, 273, note; Hard V. Wadbam, 1 East, 619. (407) § 496 CONDITIONS — WAIVER BY PERFORMANCE. [Oh. 22 disclosed by their language ; but that intention is not unfrequently hard to explore. If the condition is to pay money, this general rule may be stated, that where the thing which is the consideration for the money is to be done before the time arrives for the payment, the doing of the thing is a condition precedent to the payment of the money, and in an action at law must be necessarily averred and proved before the money can be recovered. But where the time appointed for the payment of the money does arrive, or may arrive, before the time appointed for the doing of the thing, the latter is not a condition precedent to the demand of the money.'" § 496. Waiver by Performee of Performance of Condition. The performee may undoubtedly waive the performance of the condi- tion ; but mere indulgence or silent acquiescence does not imply a waiver. The conduct from which it may be implied must be such as cannot be reconciled with a purpose to insist upon the condi- tion.^^ But even an express waiver of the performailce of a condi- tion contained in a deed would be of no avail, if such consent to the nonperformance be by parol merely,*^ unless by his silence or verbal acquiescence the grantor has induced the grantee to expend money on the property in the belief that the condition will not be enforced, in which case the grantor would be estopped to enforce it.^^ § 497. Same — Rule in Dumpor's Case. Under the authority of Dumpor's Case ^* the rule has been' promulgated, with doubtful propriety, that a license once given for the brea'ch of a condition discharges it forever.*^ So far as this rule is applied to conditions to do or not to do a single act at or by a certain time and at a certain place, it would clearly seem to be founded upon correct principles ; for if the obligor be excused from performance of such a condition at the time and place stipulated, to compel him to perform it at some other time and 80 2 Min. Insts. 298; Thorp v. Thorp, 1 Salk. 177; Pordage v. Cole, 1 Saund. 319; Brockenbrough v. Ward, 4 Rand. (Va.) 355. 812 Min. Insts. 298. 82 1 Washburn, Real Prop. 454; Perry v. Davis, 3 C. B. (N. S.) 769; Gray v. Blanchard, 8 Pick. (Mass.) 284, 291. 8 3 Kenner v. American Contract Co., 9 Bush (Ky.) 202; Yancey v. Savannah & W. R. Co., 101 Ala. 284, 13 South. 311 ; Moses v. Loomis, 156 111. 302, 40 N. E. 952, 47 Am. St. Rep. 194 ; Barrie v. Smith, 47 Mich. 180, 10 N. W. 168. Si 4 Co. 119b, 1 Smith. Lead. Cas. 47 et seq., 105 et seq. 8 6 Williams, Real Prop. 398; 1 Washburn, Real Prop. 317, note; DaUin V. Williams, 17 Wend. (N. T.) 447; Williams v. Dakin, 22 Wend. 209; Gan- nett V. Albree, 103 Mass. 372 ; Wertheimer v. Wayne Circuit Judge, 83 Mich. 56, 47 N. W. 47, 21 Am. St. Rep. 587, 588, note; Sharon Iron Co. v. City of Erie, 41 Pa. 341. See 1 Tiffany, Real Prop. § 72; 7 Am. Law Rev. 616. (408) Ch. 22] CONDITIOXS — WAIVER OF FORFEITURE. § 498 place would be, not to enforce the old condition, but to make a new agreement for the parties.'® In Dumpor's Case *' the facts were that a lease was made upon a condition that "the lessee and his assigns (presumably by opera- tion of law, as personal representatives, etc.) should not aliene with- out the special license of the lessor," and it was held that, if the li- cense were once given, the condition was thereafter null and void.** But, notwithstanding this decision, it seems quite certain that the rule there laid down is not applicable to conditions of a continuing and recurrent character, which contemplates repeated or periodical acts, and therefore repeated or periodical possibilities of breach. Thus, if there be a condition in a lease that the lessee shall pay a stipulated rent at the beginning of each month, the fact that the landlord excuses the lessee from one such payment would not dis- charge the entire condition, or rather series of conditions.*'' § 498. Waiver of Forfeiture for Breach of Condition. Not only may the performance of a condition be waived, as just shown, but there may likewise be a waiver, express or implied, of the grantor's right of re-entry for a breach already committed ; but such a waiver can arise only after the grantor, or his heir, has received knowledge of the breach.^" Wherever the grantor, after knowledge of the breach, does any act which unequivocally recognizes the grantee's interest as still subsisting, it amounts to a waiver of the forfeiture.'^ Hence, if, after knowledge of the breach, a lessor accepts rent from 'the lessee or his assignee which has accrued since the date of the breach, it amounts to a waiver of the forfeiture, though he pro- tests against such a conclusion when he receives the nioney.^^ 86 Ante, §§ 493, 494. 87 4 Co. 119b, 1 Smith, Lead. Cas. 47 et seq., 105 et seq. 8 8 See Penuock v. Lyons, 118 JIass. 92; Murray v. Harway, 56 N. Y. 337; Dougherty v. Matthews, 35 Mo. 520, 88 Am. Dec. 126; Brummell v. Mc- Pherson, '14 Ves. 173. 8 9 See 1 Tiffany, Eeal Prop. § 72; notes to Dumpor's Case, 1 Smith, Lead. Cas. 105, 108, 110. 80 2 Min. Insts. 298; 1 Smith, Lead. Cas. 110; Guild v. Richards, 16 Gray (Mass.) 309 ; Stevens v. Taylor, 58 Iowa, 664, 12 N. W. 625 ; Andrews v. Senter, 32 Me. 394. 81 Green's Case, Cro. (Eliz.) 3; Deaton v. Taylor, 90 Va. 219, 17 S. E. 944; Hubbard v. Hubbard, 97 Mass. 188, 93 Am. Dec. 75; Duryee v. City of New York, 96 X. Y. 477 ; Grigg v. Landis, 21 N. J. Eq. 494. D 2 Davenport v. Eegina, 3 App. Cas. 115; Pennant's Case, 3 Co. 64a; McKildoe v. Darraeott, 13 Grat. (Va.) 278; Bowling v. Crook, 104 Ala. 130, 16 South. 131; Stuyvesant v. Davis, 9 Paige (N. Y.) 427; Moses v. Loomls, 156 111. 392, 40 N. E. 952, 47 Am. St. Rep. 198, note. (409) § 498 CONDITIONS WAIVER OF FORFEITURE. [Ch. 'I'l Such a waiver, it should be observed, operates only on previous breaches, and does not afifect the right to take advantage of a subse- quent breach. A waiver of future performance, such as was discuss- ed in the two preceding sections, is not thus to be inferred from a waiver of forfeiture for a past breach.'"' Nor can the waiver of the forfeiture for a breach of condition af- fect the question as to what will constitute a subsequent breach, as b)' extending the time for the performance of the condition. Thus, in an English case,"* it was held that, though a previous breach of condition to repair had been waived by the acceptance of rent, a for- feiture might be subsequently enforced for nonrepair after the lapse of a reasonable time after the repairs became necessary, though such reasonable time had not elapsed since the receipt of the rent. § 499. Impossible Conditions — I. Conditions Precedent. So far as land is concerned, it is an invariable principle of the common law that conditions precedent must be performed before the estate can vest.°° It follows, therefore, that if such condition becomes im- possible, at whatsoever time, or by whatsoever means, even though it be by the act or default of the grantor, yet no estate can arise."* It may be added, further, that if the condition precedent is uncer- tain, so that it cannot be ascertained to have been fulfilled, no estate can arise. Thus, in case of a grant to A. (a man), on condition that he shall be married before Z. (a woman), and they intermarry to- gether, no estate arises for the uncertainty."' § 500. II. Impossible Conditions Subsequent — 1. Impossible When Created. As the performance of the condition is to defeat the estate, the impossibility of performance, when the condition was created, makes the grantee's estate absolute, which must have been the intent of the grantor from the beginning. Hence, in a grant with condition to be void if the grantor shall go from New York to London in an hour, the condition, being (at least, at present) im- possible, is void, and the grantee's estate is absolute."* '■>'■ McKildoe v. Darracott, 13 Grat. (Va.) 278 ; Crocker y. Old South Society In Boston, 106 Mass. 489 ; Ireland v. Nichols, 46 N. Y. 41.3 ; Bleecker V. Smith, 13 Wend. (N. T.) 533; Alexander v. Hodges, 41 Jlich. 001, 3 N. W. 187. 94 Baker v. Jones, 5 Exch. 498. 9 5 Ante, §§ 468, 472. 98 2 Min. Insts. 279 ; 2 Th. Co. Lit. 18 note (K), 22, 23, note (N) ; 1 Lom. Dig. 349 ; Burdis v. Burdis, 96 Va. 81, 30 S. E. 462, 70 Am. St. Rep. 825, and note. 97 2 Mln. Insts. 279, 280; 2 Th. Co. Lit. 18. 8S2 Jlin. Insts. 280; 2 Th. Co. Lit. 22. (410) Ch. 22] CONDITIONS MADE IMPOSSIBLE BY PEEFORMER. § 502 The impossibility contemplated is that which is inherent and per- manent, not merely improbable, or out of the power of that party, or out of human power, to control. Thus, a condition that "a mar- ried man shall marry such a woman," that "the Pope shall be in London within a week," or that "it shall rain to-morrow," are none of them impossible.^' § 501. Same — 2. Performance Subsequently Made Impossible by Act of God or of Performee. If a condition annexed to lands be possible at the making of the condition, and afterwards become impossible by the act of God, or of the beneficiary of the condition, }'et the estate or right to which the condition is incident shall not be avoided. Thus, if a man make a grant on condition that the grantor shall, within one year, go to Europe about the affairs of the grantee, and within a year the grantor die, or commit a felony for which he is kept in close prison, so that in one event it is impossible by the act of God, and in the other by the act of the grantor himself, that the condition should be performed, yet the estate of the grantee is absolute ; for if the land should by construction of law be taken from the grantee, this would be, in the one case, for the condition which was made for the grantee's benefit to work a damage to him, and in the other, for the grantor, who was the cause of the impossibility of the condition being performed, to take advantage of tlie nonper- formance ; that is, of his own wrong.^ Upon the same principle, if an estate be given to A. and his heirs, but unless he marry B. by a certain day his estate to cease, and B. dies, or the grantor marries her himself, the estate is absolute in A.^ So, also, if the benefit of the condition is to redound to the gran- tor, no impossibility of compliance brought about by the act of the grantee shall work any injury to the grantor, who shall avoid the grantee's estate just as if he had fulfilled the condition, for else the- grantee would take advantage of his own wrong. The student will not fail to observe that the condition is supposed always to be subsequent, as we have seen that the common law holds it to be invariably necessary that a condition precedent should be performed before the estate can vest.' § 502. Same — 3. Performance Subsequently Made Impossible by Act of Performer. If the condition is made impossible of per- formance by the act of the party whose duty it is to perform it, as no man is allowed to profit by his own wrong, the condition is look- ed upon as performed, and the grantee's estate is defeated.* 99 2 Miu. Insts. 280; 2 Th. Co. Lit. 2.3. note (O). 1 2 Min. iDsts. 280, 281 ; 2 Tli. Co. Lit. 19, 21. 2 1 Washburn, Real Prop. 447. a 2 Min. Insts. 290. * 2 Miu. Insts. 281 ; 2 Tli. Co. Lit. 50. (411) § 503 CONDITIONS — CONJUNCTIVE AND DISJUNCTIVE. [Ch. 22 § 503. Same — 4. Impossible Conditions in the Conjunctive and Disjunctive. If one of two conditions conjunctive be impossible at the time it was created, or become impossible afterwards, by the act of God, the other must be performed, and in general the per- formance of that will be sufficient.^ But if the conditions are in the disjunctive or alternative, the party originally having an election which he will perform,* it is said he is not to be deprived of that choice by the act of God. Hence, if one of the alternatives becomes, after the creation of the condition, providentially impossible, he is excused from the performance of the other; but not, it seems, if the condition were for the benefit of the performee, and certainly not if it became impossible otherwise than by the, act of God, and especially by the default of the obligor him- self. Thus, where the condition was to settle lands on Jane G. and her heirs, or else that the obligor would leave her by his will a pro- portionate legacy, and J. G. died before obligor, whereby it became by the act of God impossible to leave her a legacy by the obligor's will, it was held that he was discharged from the other alternative of settling lands on J. G.'s heirs.' But had the condition been to settle land on Jane G. or her heirs, so that the heirs would have been, not merely by representation, but directly, the objects of the condition, it might have been otherwise.^ And it has been adjudged that when the condition was to make a lease for the life of the obligee before such a day, or pay him ilOO, and the obligee died before the day, yet that obligor should pay the £100. So, also, where the lessee of a mill covenanted (and cove- nants and conditions in this regard stand on the same footing) to leave the millstones in as good plight as he found them, or else to pay such damages as A. should assess, and A. made no assessment, it was held that it was the duty of the obligor to have procured the assessment; and as that alternative had failed by his own default, he should not be excused from the other.' The propriety of the doctrine has, indeed, been questioned in all cases, save where the impossibility of performing one of the alterna- tives is occasioned by the act of the obligee.^" § 504. Illegal Conditions— I. General Effect of Illegal Condi- tions. The effect of an illegal condition in general depends upon B 2 Min. Insts. 296 ; 2 Tix. Co. Lit. 58, €0 ; 2 Greenleaf s Cruise, 33. « Ante, § 485 ; 2 Min. Insts. 293, 290. , 7 2 Min. Insts. 290 ; Laughter's Case, 5 Co. 22a. 8 2 Jliu. Insts. 296, 297. 9 2 Min. lusts. 297; Studtiolme v. Mandell, 1 Ld. Raym. 279; Da Costa V. Davis, 1 Bos. & P. 242. 10 2 Min. lusts. 297; Bac. Abr. Conditions (K, 2); Da Costa v. Davis 1 Bos. & P. 242 ; Stevens v. Webb, 7 Carr. & P. 61. (412) Gh. 22] CONDITIONS PRO TURPI CAUSA. § 505 whether the condition be, precedent or subsequent. The general rule of the common law is, as we have seen, that the estate cannot vest in any case of condition precedent, unless the condition be com- plied with ; and when the condition is illegal, public policy will not permit one to derive a benefit from an illegal act, so that, even though the condition were performed, still the estate could not take effect. It is therefore void, whether the condition is or is not ful- filled.i^ If' the condition is stibsequent, the condition is void, and the es- tate remains unimpaired, and would be so even though the condi- tions were performed, for the reasons just stated. ^^ Indeed, to generalize, in all cases of illegal conditions, the law, being concerned to remove all temptations and inducements to crimes and unlawful acts, so directs its policy as shall be best cal- culated to discourage what it condemns, and in so doing always acts so as, to deprive the person to be benefited by the performance of an illegal condition of that benefit, thus removing the temptation to violate the law. Thus, if the illegal condition be annexed to a bond, the bond is void, because thereby the wrong is most effectual- ly rebuked and prevented, whilst if annexed to an estate, its effect (always with the same design) depends on whether the condition be precedent or subsequent. If precedent, the estate is void ; if subse- quent, it is absolute. ^^ § 505. II. Conditions Pro Turpi Causa. The principles just considered will elucidate most of the instances of immoral condi- tions that present themselves. Thus, where the condition of a bond is that the obligee and obligor should live together in illicit cohabita- tion, the bond is void, the condition being pro turpi causa. If it be given in consideration of past cohabitation with an unmarried wo- man, it is not liable to the same objection, and is good, because it shall be intended as a compensation for the wrong done. If, how- ever, either party be married, and that fact were known to the other at the time, the obligation is tainted with incurable illegality, wheth- er the consideration were past or future cohabitation.^* But in case of a deed (an executed contract) conveying an estate upon condition of future sexual intercourse or other illegal or im- 112 Ante, § 468; 2 Min. Insts. 287; 2 Th. Co. Lit. 22, 24, note (P). 12 2 Min. Insts. 287; 2 Th. Co. Lit. 21, note (N), 24, note (P) ; Myers v. Daviess, 10 B. Mon. (Ky.) 394; Barksdale v. Blam, 30 Miss. 694; St. Louis, J. & C. R. Co. V. Mathers, 71 111. 592, 22 Am. Rep. 122. 13 2 Min. Insts. 282; 2 Th. Co. Lit. 23; Mitchell v. Reynolds, 1 P. Wms. 189. li 2 Min. Insts. 282; 2 Th. Co. Lit. 24, note (P). A promise of marriage made upon condition of sexual intercourse is illegal and void. Burke v. Shaver, 92 Va. 345, 23 S. E. 749. (413) § 506 CONDITIONS RESTRAINT OF TRADE. [Ch. 22 moral condition, the condition, if subsequent, would be void, and the estate absolute. ^^ § 506. III. Conditions in Restraint of Trade. The general doc- trine is that all restraints of trade (which the law much favors), if nothing more appear, are illegal. But this general doctrine is not without exceptions. For example, if the restraint have reference to a limited space, more or less extended, according to the nature of the business, or is to endure for a reasonable and limited time only, it is not illegal.^" § 507. IV. Conditions in Restraint of Marriage. These are not strictly illegal conditions, since they are not conditions to do an illegal act nor to omit a legal duty, but they tend to affect injurious- ly that important policy of the state which seeks to encourage, not only marriage itself, but the utmost freedom of choice in selecting a mate, and, being contrary to public policy, are for that reason treat- ed as equivalent to illegal conditions, at least where the result is to restrict marriage unreasonably, or in some cases if they restrict marriage at all.^' Such conditions are to be viewed in the following aspects : (1) Marriage brocage conditions ; (2) conditions in restraint of marriage annexed to conveyances or devises of land; (3) conditions in re- straint of marriage annexed to legacies charged upon land ; (4) con- ditions in restraint of marriage distinguished from limitations until marriage; (5) similar conditions annexed to legacies charged upon personalty. These will be taken up in their order.^* § 508. Same — 1. Marriage Brocage Conditions. Conditions stipulating for the procuring of marriages are justly regarded as of ruinous consequences, in general, to the happiness of one or both of the parties, and as tending to delude persons of fortune. Such con- ditions, therefore, invariably invalidate all bonds to which they are annexed, and if annexed to estates, when precedent, the estate can- not take effect, and when subsequent, the estate cannot be defeated. Nor is it material whether the procurement of a marriage is the 16 Ante, § 504. IS 2 Min. Insts. 282, 283; 2 Tli. Co. Lit. 24, note (P). See Jlerriman v. Cover, 104 Va. 428, 51 S. B. 817. "See post, §§ 512, 513; Wilkinson v. Willvinson, L. R. 12 Eq. 604. In this case it was held that a condition involved in its performance a prob- able separation of husband and wife. Conditions involving divorce or sep- aration between husband and wife are in general void. 2 Jarman, Wills, 852, note (a) ; Conrad v. Long, 33 Mich. 78 ; Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422, 27 Am. St. Rep. 391. 18 2 Jlin. Insts. 283 et seq. ; Coppage v. Alexander, 2 B. Mon. (Ky.) 313, 38 Am. Dec. 153, note. (414) Oh. 22] CONDITIONS — RESTRAINT OF MARRIAGE. § 511 past consideration, or future condition, of the transaction. Such attorneyship is aHke frowned upon under all circumstances. And, upon like principles, any private arrangement, infringing the open and public agreement on the marriage, is held to be fraudulent and void.^* § 509. Same — 2. Conditions Restricting Marriage Annexed to Conveyance or Devise of Land. The common-law principles touch- ing the effect of illegal conditions are applicable here in general.^" If the condition be precedent, however restrictive of marriage, it must be complied with before the estate can vest; ^^ and if the con- dition be subsequent, its validity depends upon whether it is unrea- sonably restrictive of marriage or not, according to the principles of the common law. Thus, where a testator gave certain property to his daughter, but declared that as, in consequence of a nervous debility, she was unfit for the control of herself, his will was that she should not marry, and that, if she did, the gift should be void, the condition was held to be invalid, and the estate absolute. ^^ But, by the current of authority, conditions restraining persons widowed from marrying again are sustained as valid. ^^ § 510. Same — 3. Conditions Restricting Marriage Annexed to Legacies Charged on Land. In this case, also, as in that of condi- tions restraining .marriage annexed to conveyances or devises of land, the principles of the common law have always been freely ap- plied by the Courts of Chancery, uninfluenced by the peculiar views (drawn from the civil law) applied by the ecclesiastical courts to similar conditions annexed to legacies charged upon personal prop- erty,^* but which never had any jurisdiction over legacies charged upon real property. Hence exactly the same principles are appli- cable in the case of legacies charged upon land as in the case of the conveyance or devise of the land itself.^" § 51 L Same — 4. Conditions in Restraint of Marriage Distin- guished from Special Limitations until Marriage. The general dis- 19 2 Mm. Insts. 283; 2 Th. Co. Lit. 24, note (P) ; 1 Parsons, Contracts, 556. 20 Ante, § 504. 212 Min. Insts. 285, 265; 1 Th. Co. Lit. 19, note (K) ; Scott v. Tyler, 2 Bro. Cli. 488, 2 White & Tud. Lead. Gas. Eq. 318. 22 2 Min. Insts. 286; 1 Th. Co., Lit. 19, note (K) ; 1 Story, Eq. Jur. § 288; Morley v. Rennoldson, 2 Hare, 570, 579; Scott v. Tyler, 2 Bro. Ch. 431, 2 White & Tud. Lead. Cas. Eq. 319; Smythe v. Smythe, 90 Va. 688, 19 S. E. 175 ; Maddox V. Maddox, 11 Grat. (Va.) 804. 23 2 Min. Insts. 285; 1 Story, Eq. Jur. § 285; 1 Roper, Legacies, 832; 2 Jarman, Wills, 44, note (2) ; Scott v. Tyler, 2 Bro. Ch. 488, 2 White & Tud. Lead. Cas. Eq. 319. 2* Post, § 512 et seq. 2 6 Ante, § 509; 2 Min. Insts. 284 et seq. (415) § 511 CONDITIONS EESTEAIXT OF MARRIAGE. [Ch. 22 cinction existing between conditions and special or common-law lim- itations has been already noted. Applying that distinction to the present case, it will be observed that, while an estate upon condi- tion subsequent unreasonably restrictive of marriage is absolute and without condition (the condition being void),-" it is otherwise if the restraint of marriage (though total) is in the form of a special limitation, the function of which is to mark out the extreme limit of the duration of the estate, beyond which it cannot endure without making a new contract for the parties. Thus a devise "to A. until she marries, and then the land to pass to Z.," is a limitation, and good; whilst a "devise to A. for life, on condition that, if she marries, the land shall pass to Z.," is a condi- tion, and, because it absolutely prohibits marriage, is void — that is, the condition is void, and, being a condition precedent to Z.'s estate, Z. can take no interest, present or future, in the land conveyed.^' § 512. Same — 5. Conditions Restraining Marriage Annexed to Legacies Charged upon Personalty — A. In General. Marriage is an institution of such importance to the well-being and happiness, and even to the continuance, of society, that it is impossible for any system of law to regard restraints tending materially to affect its freedom without disapprobation. The civil and canon law deem any clogs whatsoever upon the perfect freedom of marriage inex- pedient, and invalidate all conditions which restrict it in any man- ner. The common law, on the other hand, holds it to be illegal to prohibit marriage altogether, or even to impose restrictions upon it for an unreasonable period, or subject to unreasonable terms; but it does not condemn conditions whereby marriage is moderately and reasonably restrained in respect of time, place, person, consent of guardian, etc.^* The blending of these discordant views of policy, in a very inhar- monious and irregular manner, has made a strange patchwork of the law, as administered in the English courts and our own, touch- ing the subject of the annexation to legacies of conditions restrain- ing marriage. Legacies payable out of the personalty only were originally cognizable in England in the ecclesiastical courts alone, which, being regulated by the principles of the civil and canon law, esteemed all conditions in restraint of marriage to be opposed to the 2 6 Ante, §§ 509, 510. 2 7 2 Min. Insts. 285; Scott v. Tyler, 2 Bro. Ch. 488, 2 White & Tud. Lead. Cns. Eq. .321 ; Selden v. Keen, 27 Grat. (Ya.) r)»2 et seq. ; JIann v. Jackson, S4 Me. 400, 24 Atl. 886, 16 L. K. A. 707, 30 Am. St. Rep. 358. 26 2 .Min. Insts. 283, 284; Coppage v. Alexander, 2 B. Mon. (Ky.) 313, 38 Am. Dee. 153, note. (41G) Ch. 22] CONDITIONS RESTRAINT OF MARRIAGE. § 513 well-being of society, and void. Hence, when the Court of Chan- cery, at a later period, assumed a concurrent jurisdiction to enforce the payment of legacies, upon the ground of the trust involved, it adopted for the most part, but not wholly, the doctrines and rules it found prevailing upon the subject in the ecclesiastical courts ; it being manifestly undesirable that the subject should have a different measure of justice, according as he happened to sue in one or the other tribunal.''® The doctrines of the Court of Chancery in respect to such con- ditions, when annexed to devises, and to legacies charged on lands, are uniform, and easily intelligible. The complexity is in respect of legacies charged on personalty alone ; and in them it grows out of the fact that the Court of Chancery did not, as to them, adopt wholly the rules which it found prevailing in the ecclesiastical courts, nor without a certain regard to the principles of the common law. On the contrary, whenever it discovered that the testator's in- tention was fixed to make the condition respecting marriage indis- pensable to the enjoyment of his bounty, and that otherwise he de- signed the gift to go over to some one else, the condition prevailed, unless it was entirely prohibitory or unreasonably restrictive of marriage, when the common law held it to be void.^° Hence, in all cases of legacies given upon conditions affecting liberty of marriage, the most important inquiry is whether the leg- acy be payable out of the real or out of the personal estate ; and the next most important point to be observed is whether it is given over to some one else if the conditions be not complied with.^' § 513. Same — B. Legacy Given Over to Another upon Mar- riage. The condition, whether precedent or subsequent, must be complied with, unless it be imreasonably restrictive of marriage, in which case it is wholly void, and the legacy is absolute. The stu- dent will observe what a mihgling is here of the principles of the civil and common law. The civil law, alone considered, would have disregarded the condition under all circumstances, and have held the legacy always absolute. The common law, considered alone, would have pronounced the condition, whether precedent or subsequent, necessary to be observed, unless it were unreason- ably restrictive of marriage, in which event it would have disre- garded the condition subsequent as void, so making the legacy 29 2 ilin. Insts. 284. 30 2 Min. Insts. 284, 285; 1 Story, Eq. Jur. § 283 et seq.; Garbut v. Hilton, 1 Atk. 381; Scott v. Tyler, 2 Bro. Ch. 431, 2 White & Tud. Lead. Cas. Eq. 266 et seq. ; JIaddox v. JIaddox, 11 Grat. (Va.) 804 ; Ooppage v. Alexander, 2 B. Mon. (Ky.) 313, 38 Am. Dec. 153, note. 31 2 Jlin. Insts. 285. Minor & W.Real Prop.— 27 (417) § 513 CONDITIONS RESTRAINT OF MARRIAGE. [Ch. -2 absolute; but in the case of the condition precedent it would not have suffered the legacy to vest until the condition had been per- formed. The Court of Chancery, therefore, has adopted the civil law only in allowing the legacy to vest in the case of the prece- dent condition in the last instance, notwithstanding its nonper- formance. In all other particulars it has followed its own doc- trines; that is, those of the common law.^^ The reason for allowing such an effect to the bequest over is dif- ferently stated. Some treat it as an emphatic manifestation of the testator's intent, whilst others consider that it is the interest of the legatee over who takes by way of conditional limitation, which makes the difference; and this latter view seems the better found- ed." § 514. Same — C. Legacy Not Given Over upon Marriage. In this case, if the condition is precedent and unreasonably restrictive of marriage, the condition is void and the legacy absolute; other- wise the condition must be observed.'* If the condition be subsequent, it is inoperative in any event to defeat the legacy; for if unreasonably restrictive of marriage it is void, and if not it is deemed merely in terrorem.^" § 515. Repugnant Conditions. Conditions are repugnant, and therefore void, when they are inconsistent with the legal nature and incidents of the estate granted, to which they are annexed.'" The most usual instances of repugnancy arise in case of condi- tions, annexed to an estate, (1) not to aliene the estate granted; (2) that it shall not be subject to the grantee's debts; and (3) not to use it in particular ways or for particular purposes. These will .be examined in the following sections.'' 52 2 Mln. Insts. 286; 1 Th. Co. Lit. 19, note (K); Scott v. Tyler, 2 Bro. Ch 488, 2 White & Tud. Lead. Cas. Eq. 320; Coppage v. Alexander, 2 B. Mon (Ky.) 313, 38 Am. Dec. 153, note. 33 2 Min. Insts. 286; Scott v. Tyler, 2 White & Tud. Lead. Cas. Eq. 320 Lloyd V. Branton, 3 Meriv. 117. 34 2 Min. Insts. 287; 2 Th. Co. Lit. 19, note (K) ; 1 Story, Eq. Jur. § 290 Garbut v. Hilton, 1 Atk. 381 ; Scott v. Tyler, 2 Bro. Ch. 431, 2 White & Tud. Lead. Cas. Eq. 266, 318. See Coppage v. Alexander, 2 B. Mon. (Ky.) 313, 38 Am. Dec. 153, note. 35 2 Min. Insts. 287; 2 Th. Co. Lit. 19 note (K) ; 1 Story, Eq. Jur. § 288; Scott V. Tyler, 2 White & Tud. Lead. Cas. Eq. 319; Maddox v. Maddox, 11 Grat. (Va.) 804, 810. See Coppage v. Alexander, 2 B. Mon. (Ky.) 313, 38 Am. Dec. 153, note. 36 2 Min. Insts. 287; 2 Th. Co. Lit. 26 et seq.; Hutchinson v. Maxwell, 100 Va. 175, 40 S. B. 655, 57 L. R. A. 384, 93 Am. St. Rep. 944. BT 2 Min. Insts. 287 ; 2 Th. Co. Lit. 25 et seq, (418) Ch. 22] CONDITIONS RESTRAINT OF ALIENATION. § 517 § 516. I. Conditions in Restraint of Alienation — 1. Annexed to Grant of Fee Simple — General Rule. It will be remembered that amongst the incidents which the law generally attaches to fee- simple estates was mentioned an unlimited power of alienation.^' It follows that a condition not to aliene (with certain qualifications, presently to be mentioned), when annexed to the grant of a fee- simple estate, is repugnant to this incident or quality, and for that reason is void.'' Not only is such a condition repugnant to the incident of un- limited power of alienation belonging to an estate in fee simple, but, as Lord Coke observes, it is "absurd and repugnant to reason, that he that hath no possibility to have the land revert to him should restrain his feoffee in fee simple of all his power to aliene. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel, real or personal, and give or sell his whole in- terest or property therein, upon condition that the donee or vendee shall not aliene, the same is void, because his whole interest or property is out of him, so as he hath no possibility of a reverter, and it is against trade and traffic, and bargaining and contracting be- tween man and man ; and it is within the reason of our author (Littleton) that it should oust him of all power given to him. Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem." *" § 517. Same — Qualifications of General Rule — Discussion Out- lined. To the general rule above stated, that conditions annexed to the grant of the fee simple in restraint of alienation are repugnant and void, there are certain qualifications and exceptions to be not- ed. These are (1) where the restriction is reasonable ; (2) where the property is conveyed to a married woman as her equitable 3 8 Ante, § 151; 2 Mm. Insts. 86. 30 2 Min. Insts. 288, 289; i Kent, Com. 131; 2 Jarman, "Wills, 13 et seq.; 2 Th. Co. Lit. 25 €t seq. ; Hutchinson v. Maxwell, 100 Va. 175, 40 S. E. 655, 57 L. R. A. 384, 93 Am. St. Rep. 944. See Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721; De Peyster v. Michael, 6 N. Y. 467, 57 Am. Dec. 470, note; Winsor v. Mills, 157 Mass. 362, 32 N. B. 352. Hardy v. Galloway, 111 N. 0. 519, 15 S. E. 890, 32 Am. St. Rep. 828; Mutual Benefit Life Ins. Co. V. Rector, etc., of Grace Church, 53 N. J. Eq. 413, 32 Atl. 691. 40 2 Th. Co. Lit. 26; 2 Min. Insts. 288 ; Hutchinson v. Maxwell, 100 Va. 175, 176, 40 S. E. 655, 57 L. R. A. 384, 93 Am. St. Rep. 944. Indeed, the tend- ency is adverse to the support of any condition which is merely the result of caprice, and is not calculated to benefit any person or property. Mitctiell V. Leavitt, 30 Conn. 587 ; Barrie v. Smith, 47 Mich. 130, 10 N. W. 168 ; John- son T. Warren, 74 Mich. 495, 42 N. W. 74; Pepin County v. Prlndle, 61 Wis. 301, 21 N. W. 254. Thus a condition requiring the devisee to live In a par- ticular town has been held Invalid as merely the result of caprice. Newkerk V. Newkerk, 2 Caines (N. Y.) 345. (419) § 518 . CONDITIONS— RESTRAINT OF ALIENATION. [Ch. 22 separate estate; (3) where the grantee is a corporation; (4) where the condition is annexed to a tract other than that conveyed ; (5) where the condition is annexed to a bond; (6) where the restriction is in the form of a special limitation ("until" he aliens). § 518. Same— A. Restrictions Reasonable. According to the better opinion, though, it must be confessed, with strong dissent, a condition annexed to the grant of a fee simple imposing reason- able restrictions upon the grantee's power of alienation is admis- sible, if the restriction of the power be limited to a reasonable time,^^ or be confined to a few designated persons.*^ But a condi- tion that the grantee may transfer the estate granted to a certain class of persons only (unless the class constitutes a very large proportion of the community) is by the weight of authority in- valid." If the condition undertakes to pronibit the transfer by one par- ticular method, as by will, by mortgage, or by deed, the condition is void.** And the condition is equally void whether it seeks to prohibit a voluntary or an involuntary alienation, so that a condition that a fee simple granted shall terminate if the grantee becomes a bank- rupt, or if the land has to be sold under order of court upon a judg- ment against him, is a void condition.*'' § 519. Same — B. Married Woman's Equitable Separate Es- tate. Another qualification of the doctrine that conditions restrain- 412 Min. lusts. 288; 2 Th. Co. Lit 27, note (R) ; Camp v. Cleary, 76 Va. 140 ; Fowlkes v. Wagner (Tenn. Ch. App.) 46 S. W. 586. Some of the cases distinguish between a vested and a contingent estate, holding that such a restriction is invalid if the estate he vested, but valid if the nonalienation of the estate is a condition precedent to the vesting. See Mandlehaum v. Mc- Donell, 29 Mich. 78, 18 Am. Rep. 61 ; Potter v. Couch. 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721; Bank of State v. Forney, 37 N. C. 181; Anderson v. Gary, 36 Ohio St. 506, 38 Am. Rep. 602; De Peyster v. Michael. 6 N. Y. 467, 57 Am. Dec. 470, note. 12 2 Min. Insts. 288 ; 2 Th. Co. Lit. 27, note (R) ; Cowell v. Colorado Springs ■ Co., 100 TJ. S. 55, 25 L. Ed. 547; Wlnsor v. Mills, 157 Mass. 362, 32 N. B. 852. But see 4 Kent, Com. 131; Barnard's Lessee v. Bailey, 2 Har. (Del.) 56; Wil- liams V. Jones, 2 Swan (Tenn.) 620. See De Peyster v. Michael. 6 N. Y. 467, 57 -Am. Dec. 470, note. *3 Gray, Restraints on Alien. § 41; In re Rosher, 26 Ch. Div. 801; Att- water v. Attwater, 18 Beav. 330 ; Anderson v. Gary, 36 Ohio St. 506, 38 Am. Rep. 602; gchermerhorn v. Negus, 1 Deuio (N. Y.) 448; Morse v. Blood, 68 Min. 442, 71 N. W. 682. But see Doe v. Pearson, 6 East, 173 ; In re Macleay. L. R. 20 Eq. 186. 44. 4. Debt Not Extinguished by the Conveyance. 545. Mortgage Distinguished from Deed of Trust to Secure Debts. 546. Pov?er of Sale Reserved to the Mortgagee. 1. In Case of Chattel Mortgage. 547. 2. In Case of Mortgage of Land. 548. Character of Mortgagor's Estate before Default. 549. Character of Mortgagor's Estate after Default at Law. 550. Mortgagor's Equity of Redemption. 551. To Redeem, Mortgagor must Pay Mortgage Debt with Interest. 552. Conditions of Redemption — Tacking of Debts to Mortgages. 553. 1. Tacking of Debts Specifically Charged on Mortgaged Land. 554. 2. Mortgage to Secure Future Advances. 555. Mortgagee's Right to Recover Deficit by Personal Action. 556. Effect of Lapse of Time on Mortgagor's Right to Redeem. 557.' Character of Mortgagee's Estate before Default. 558. Character of Mortgagee's Estate after Default. 559. Mortgagee's Remedies. by Action at Law. 1. Action for the Money. 560. 2. Action of Ejectment for the Land. 561. Mortgagee's Proceedings in Equity to Foreclose. 562. Proper Parties to Bill to Foreclose. 563. Who Entitled to Mortgage Money upon Mortgagee's Death. 564. "Who Liable for Mortgage Money upon Mortgagor's Death. 565. Mortgagee's Assignment of the Debt Secured by Mortgage. 566. Assignment of Nonnegotiable Instrument Secured by Mortgage or Deed of Trust. 567. Assignment of Negotiable Instrument Secured by Mortgage or Deed of Trust. 568. Assignment of Mortgage Debt in Successive Parcels. 569. Assignment or Release of Mortgage Debt to Mortgagor. (429) § 532 MORTGAGES PURPOSES. [Ch. 23 § 570. Hortgagor's Assignment of Mortgaged Land. 571. Mortgagor's Assignment of Part of the Land. 572. Successive Assignments of the Land in Parcels. 573. Assignments of the Land by Concurrent Alienations. 574. Assignment of Mortgaged Land for Life Assignee. 575. Priorities as between Mortgages— General Rule. 576. Applications of General Rule. 577. 1. Later Incumbrance, Aided by Legal Title, Preferred to Incum- brance Prior in Point of Time. A. Where Later Incumbrancer Gets Possession of the Title Deeds. 578. B. Where First Conveyance Is Defective. 579. C. Where Later Incumbrancer Acquires the Legal Title- Tacking. 580. 2. Later Incumbrance Made Superior by Misconduct of Prior In- cumbrancer. 581. 3. Later Incumbrance Made Superior by Failure to, Record Prior Incumbrance under Registry Statutes. 582. 4. Equities Superior to Legal Title, if Latter Acquired with No- tice of the Former. 583. Application of Payments Made upon Mortgage Debt. § 532. Incumbrances for Purposes of Security. There are some further qualifications of estates in land, arising by way of lien or incumbrance. These may be divided into two great classes: (1) Those incumbrances which are created by act and contract of the parties; and (3) those which arise by operation of law — i. e., by ex- press statutory enactment, or by an implication of intention drawn from the acts of the parties. To the first class belong mortgages and deeds of trust to secure debts. The use of deeds of trust to secure debts is so locally re- stricted that its particular consideration is beyond the scope of this work. To the second class belong judgment liens and the liens of me- chanics and materialmen, and others of like character, all of which owe their existence to local statutes. The consideration of these statutory liens is also beyond the scope of our work. But those liens which arise by implication of law, being founded on principles of equity whose existence is everywhere acknowledged, however much there may be a lack of uniformity in their application, demand our attention. While the purpose of all statutory and implied liens on land is to secure the payment of money, that of a mortgage may be to secure either the payment of money or the doing of some collateral thing. § 533. Mortgages in the United States. In this country, mort- gages are divided into two great classes : (1) Common-law, or legal, mortgages, and (3) lien theory mortgages. To which of these (430) Ch. 23] MORTGAGES EQUITY OF REDEMPTION. § 535 classes a mortgage belongs depends upon the law of the state in which the mortgaged property is situated. While the nature of a mortgage under one theory differs essen- tially from that under the other, the object is the' same under either theory, and, so far as their different natures permit, the equitable principles applied in adjusting the rights of the dififerent persons interested are common to both. § 534. Nature of a Mortgage — I. Under the Common-Law Theory. 1. The Mortgagee's Estate. A mortgage is a convey- ance of property on condition to be void if a sum of money be paid, or a collateral thing be done, by a designated time. The estate of the mortgagee is one on condition subsequent. The performance of the condition divests the mortgagee of his estate and restores the right of possession to the mortgagor without the necessity of a re- conveyance. Until the performance of the condition, the mortgagee is entitled to the possession of the land as the legal owner. But if default be made in payment of the debt or in performance of the collateral thing to be done, so that it is now impossible to perform the condition, the estate of the mortgagee at once becomes ab- solute.^ The name mortgage (equivalent to the Latin mortuum vadium), is said by Littleton and Coke to be given to this security because if the grantor (the debtor) does pay, the land is dead to the cred- itor, and if he does not pay, it is dead to himself.^ § 535. Same — 2. Equity of Redemption. It is not clearly as- certained when the equity of redemption was first allowed. As Lord Coke makes no mention of it, it may be presumed not to have been generally acknowledged at the period of the publication of his first Institute, the commentary upon Littleton, which was in 1621 ; but in the first year of the reign of Charles II (A. D. 1660), we 1 2 Min. lusts. 332 ; 2 Th. Co. Lit. 34 ; 2 Bl. Com. 158. The notion of mortgages, and of the redemption thereof, seems to have been derived from the civil or Roman law, which distinguished between a pledge or pawn (pignus) on the one side (where the possession passed to the creditor), and a hypotheca on the other (where it remained with the debtor). In the latter case, if the money be not paid, the creditor is obliged to obtain a judicial sentence before the property of the subject is vested in him, and meanwhile it is liable to redemption, which idea, derived from the civil law, seems to have aided in suggesting that right to redeem which the courts of equity have for over two centuries enforced in respect to mortgages. The name mortgage (equivalent to the Latin mortuum vadium) is said by Littleton and Coke to be given to this security because, if the grantor (the debtor) does pay, the land is dead to the creditor, and, If lie does not pay, it Is dead to himself. 2 Min. Insts. 332. 2 2 Min. Insts. 332 ; 2 Th. Co. Lit. 34, (431) § 535 MORTGAGES — EQUITY OF REDEMPTION. [Ch. 23 find the right supported as a thing of course. It must, therefore, have been estabHshed during the period of the Commonwealth or temp. Charles I, or in the latter years of James I.^ An equity of redemption is defined to be an equitable right inherent in the land (a title in equity, and something" more than merely a trust), which binds all persons, whereby, although the condition be not strictly performed, so that the estate is forfeited at law, yet if the debtor pay the money, with interest, within a reasonable time, he is entitled in equity to call on the creditor for a reconveyance of the land. The mortgagor is thus enabled to con- strain the mortgagee, who has possession of his estate, to deliver it back, and account for the rents and profits received, on payment of his whole debt and interest, thereby, as Blackstone observes, turning the mortuum into a kind of vivum vadium.* On the other hand, the mortgagee, as soon as default is made, may call upon the mortgagor in equity to redeem his estate pres- ently, or else in default thereof, to be forever foreclosed from re- deeming the same ; that is, to lose his equity of redemption without possibility of recall.'* The reason for the allowance of the equity of redemption is to be found in the general maxim of the courts of equity, that penalties and forfeitures are always to be relieved against when the substan- tial object in view can be attained, and the other party put essen- tially in statu quo, without enforcing them. It is obvious that a mortgage is meant only as a security for the money, and that if, within a reasonable time, although not within the time limited, the money be paid with interest, the object of the transaction is substantially attained, and the creditor ought to be satisfied." § 536. Same — 3. Equity of Redemption Inseparably Incident to Every Mortgage. The right of redemption is so carefully guarded by courts of equity that they will suffer no agreement in a mort- gage deed to prevail whereby the right to redeem is waived, and the estate is to become an absolute purchase in the mortgagee upon any event whatever. If it can be discerned, or proved by parol, that the estate was intended as a security for money, it is a mort- gage, and without regard to stipulations to the contrary, it has in- separably incident to it an equity of redemption. Nor is this right to redeem confined to the mortgagor, and persons in privity with 3 2 Min. Insts. 33.o ; 2 Story, Eq. .Tur. § 1014. 4 2 Min. Insts. 334, 33.5; 2 Bl. Com. inn ; 2 Th. Co. Lit. 32, note (Z) ; Keeve V. Atty. Gen., 3 Atk. 223; Tucker ^. Thurston, 17 Ves. 133. 5 2 Jlin. Insts. 335 ; 2 Bl. Com. 1 .10. 6 2 Min. Insts. 335 ; 2 Story, Eq. Jur. § 1013 et seq. (432) Oh. 23] MOETGAGES — EQUITY OF REDEMPTION. § 537 him, as his heirs, personal representatives, and assignees, but it extends also to subsequent incumbrancers, and to all persons claim- ing any interest whatever in the premises, as against the mortgagor. Hence a person claiming under a deed voluntary, and therefore void as against a subsequent mortgagee, may redeem, for the voluntary deed is binding on the mortgagor. A fortiori, may one claiming for valuable consideration, as tenant under the mortgagor, or a judg- ment creditor, or a tenant by elegit, or a tenant by the curtesy, or in dower.' It is a wholesome and well-known general rule of evidence to ex- clude verbal testimony to contradict or alter any writing, yet not- withstanding it is allowed, as said above, to prove by parol that a conveyance absolute on its face was in fact intended only as a se- curity for money; that is, as a mortgage, with the inevitable con- comitant of an equity of redemption. It is admitted, however, that the evidence, in order thus to refute the express terms of the deed, must be clear, and the proof cogent. For this acknowledged excep- tion to the general rule, several reasons are given, as (1) that a mistake has been made, or else a fraud committed in carrying out the intention of the parties, by making the conveyance absolute instead of conditional, and that it is a peculiar function of a, court of equity to correct such mistakes ; (2) that the admission of parol evidence in such cases is necessary in order to prevent oppression and fraud on the part of creditors ; and (3) that the equity to re- deem incident to a mortgage is analogous to, or rather is itself, a resulting trust, which has always been allowed to be established by verbal testimony.^ § 537. Same — 4. Equity of Redemption an Estate in the Land. An equity of redemption, as we have seen, is a mere creature of a court of equity, founded on the principle that, as a mortgage is only a pledge to secure money, it is but natural justice, and is, more- over, the substance of the transaction, to consider the ownership of 7 2 Min. Insts. .33.5, .3.36 ; 2 Th. Co. Lit. 40, note (Z) ; Howard v. Harris, 1 Vern. 190, 2 Wliite & Tud. Lead. Cas. Eq. 41.5 et seq., 430 et seq. ; James v. Oades, 2 Vern. 402 ; Tooines v. Slade, 7 Ves. 273 ; Ross v. Xorvell, 1 Wash. (Va.) 14, 1 Am. Dec. 422. 8 2 Min. Insts. 336 ; Thornbrough v. Balcer, 2 White & Tnd. Lead. Cas. Eq. 418, 431; Joynes v. Statham, 3 Atk. 389; Dixon v. Parljer, 2 Ves. Sr. 225; Siirigg v. Banli: of Mt. Pleasant, 14 Pet. 201, 10 L. Ed. 419; BalicocI? T. Wyman, 19 How. 299, 15 L. Ed. 644; Ross v. Norvell, 1 Wash. (Va.) 14, 1 Am. Dec. 422; Robinson v. Willoughby, 65 N. C. .520; Phillips v. Croft, 42 Ala. 477; Klinik v. Price. 4 W. Va. 4, 6 Am. Rep. 268; Edrington v. Harper, 3 J. J. Marsh. (Ky.) 355. 20 Am. Dec. 145 ; Prince v. Bearden, 1 A. K. .Marsh. (Ky.) 170; Hoiiry v. Davis, 7 Johns. Ch. (N. y.) 40; Van Buren V. Olmstead, 5 Paige (X. Y.) 9. Minor & W.Real Prop.— 28 (433) § 53,7 MORTGAGES EQUITY OF REDEMPTION. [Ch. 23 the land as still vested in the mortgagor, subject only to the mort- gagee's legal title, so far as needful for his security. It is some- thing more than a mere trust, being inherent in the land, and bind- ing all persons, whether they come in in the post, or otherwise. Whilst the mortgagor, entitled to an equity of redemption, is in possession of the land, he is deemed, in nearly every jurisdiction in this country, to be seised thereof as against all persons whomso- ever but the mortgagee and his assigns, so that until the mortgagee assert his right of possession, or foreclose the equity of redemp- tion, the mortgagor's interest is subject to all the incidents of a legal estate, including dower and curtesy, and may be levied upon and sold for the mortgagor s debts." And a striking illustration of the legal phase of this double-faced interest, which from one point of view is a complete legal estate, from the other, a mere equity, is the right of the mortgagor to maintain an action of eject- ment (which must be based on a legal title) against third persons.^" 1 Jones, Mortgages, §§ 11, 15 ; Wilkins v. French, 20 Me. Ill ; Cooper v. Davis, 15 Conn. 556. 10 Woods V. Hilderbrand, 46 Mo. 2S4, 2 Am. Rep. 513. Mortgage (Mortuum Vadium) Distinguished from Tivum, Vadium. Glan- ville, in tlie time of Henry II (about A. D. 1170), describes two kinds of pledges as then existing, namely, one where the seisin of the lands has been delivered to the creditor for a definite term, and it has been agreed that the proceeds and rents shall in the meantime reduce the debt ; and the other, where the seisin has been in like manner delivered for a definite term, but the fruits and rents received in the interval In no measure tend to reduce the demand. To the former transaction he assigns no name, but it seems to have been well enough known to the law of Normandy by the designation of vivuni vadium. The latter he calls mortgage (mortuum vadium), and characterizes It as an unjust and dishonest agreement, although not prohibited by the king's court. 2 Miu. Insts. 331. Vivum vadium is described by Lord Coke as where a man borrows flOO of another, and maketh an estate of lands to him until he hath received the said sum of the issues and the profits of the land ; so as in this case neither money dieth nor land is lost, and therefore it is called vivum vadium. 2 Th. Co. Lit. 34 ; 2 Min. Insts. 331 ; 2 Bl. Com. 157. There is another trans- action quite similar to the ancient vivum vadium, not unknown in England at the present day, termed a "Welsh mortgage," the peculiarity of which is that upon default the mortgagee does not take the mortgaged land absolutely, but only until out of the rents and profits thereof he may reimburse himself for the principal and interest of the debt. See post, § 550 ; 2 Min. Insts. 357, 358. Mortgage Distinguished from Pledge or Pawn. The difference between a pledge or pawn and a mortgage is twofold: (1) A pledge is necessarily chat- tel property, or movables alone ; a mortgage may be either of personal or real estate. (2) A pledge passes only a special property to the pawnee, the general property remaining still with the pawner, but with the jjrivilege to the pawnee to sell at auction, if the money be not paid upon giving reasonable opportunity (434) Oh. 23] MORTGAGES IMPLIED PERSONAL LIABILITY. § 539 § 538. Same — II. Under the Lien Theory. In naany of the states of this country, the character of a mortgage has been essen- tially changed by doing away with the mortgagee's legal estate, with his consequent right of possession of the land. This reduces the mortgage to a mere lien, or right to have the specific property mortgaged sold and the proceeds applied to the payment of the debt. The mortgagee has no estate in the land either at law or in equity. One result of this is that, after default, the mortgagee cannot be- come the absolute owner of the property by a strict foreclosure, cut- ting off the equity of redemption ; for prior to default he had no de- feasible estate which could be made absolute. '■'■ Another result is that payment after default (as well as before) destroys the lien, for no lien can exist without a debt, and therefore no reconveyance of the land is necessary; whereas under the common-law theory, if payment were made after default, a reconveyance is necessary, for the legal estate in the mortgagee has become absolute at law.^^ The mortgagor has the right to pay the debt when it becomes due and at any time before a consummated sale under foreclosure, and this right will be protected in equity. This right to pay the debt and discharge the lien is called (but not with technical accuracy) an "equity of redemption'' ; and the same term is often (and still more inaccurately) applied to the estate of the mortgagor in the land.^' § 539. Mortgage Implies Personal Liability Also on Part of Mort- gagor. It is worthy to be noted that for the most part every pledge implies a debt, and therefore an action lies on a mortgage to recover the money thereby sought to be secured, unless it be stipulated that the recourse shall be to the subject mortgaged alone. Hence, where the subject, being personalty, is lost or destroyed without the default of the mortgagee, he may still recover the money, by an action against the mortgagor. And this is equally true, whether •there be a promise to pay contained in the mortgage or not; but that to the debtor to redeem, and apprising him of the time and place of sale ; a mortgage vests a legal title conditionally in the mortgagee, and if the con- dition be not performed by the payment of the money at the time stipulated. the title becomes absolute at law, altliough equity In modern times will compel the allowance of a right of redemption. 2 Min. Insts. 332 ; 4 Kent, Com. 138. 11 Fletcher v. Holmes, 32 Ind. 497; Webb v. Hoselton, 4 Neb. 308, 19 Am, Eep. 638 ; Smith v. Gardner, 42 Barb. (N. Y.) 356 ; Trimm v. Marsh, 54 N. Y, 599, 13 Am. Rep. 623 ; Edrington v. Newland, 57 Tex. 627 ; Jordan v. Sayre, 29 Fla. 100, 10 South. 823 ; Waterson v. Devoe, 18 Kan. 223. 12 2 Jones, Mortgages, § 889; Jackson v. Stackhouse, 1 Cow. (N. Y.) 122, 13 Am. Dec. 514; Robinson v. Leavltt, 7 N. H. 73. 13 2 Washburn, Real Prop. (6th Ed.) § 1045. (435) § 539 MORTGAGES — IMPLIED PERSONAL LIABILITY. [Ch. 23 circumstance may make a difference in the action proper to be brought, and in the application of the statute of limitations.^* And so a change in the evidence of the debt does not discharge the mortgage. A mortgage secures the debt and not merely the note or bond or other evidence of it. No change in the form of the evidence, or the mode or time of payment — nothing short of the actual payment of the debt, or an actual release — will operate to discharge the mortgage.^" Thus the fact that the creditor obtains a judgment for the debt in a court of law does not discharge the mortgage, or other lien;^' nor does the taking of a new bond;^^ nor even the surrender or can- cellation of the bond taken at the time the debt was contracted, un- less such is the manifest intent, for the bond is merely one of the two securities of the creditor, to either of which he may resort at pleasure, but both of which are distinct from the debt itself. '^^ In- deed, the lien securing the debt continues to exist until it is clearly shown that it has been waived, released or satisfied, the burden of proving which is on the party alleging it.^' But if the land subject to the mortgage be conveyed by the mort- gagor, the purchaser, in the absence of an agreement by him to assume the mortgage, is not liable personally to pay the mortgage, since it is not his debt, but the land in his hands is liable, he having purchased it subject to the mortgage (supposing him to have notice thereof) ; but the mortgagor still remains personally liabte as before. If, however, the purchaser expressly assumes the payment of the mortgage as part of the consideration for the conveyance to him, while this does not, without the consent of the mortgagee, release the mortgagor altogether, it makes him responsible only subsidia- rily, as surety, and the mortgagee is the principal debtor.^" §. 540. Mortgage Distinguished from a Conditional Sale. A conditional sale is not a security for money, but is what its designa- 14 2 Min. Insts. 333, 334 ; Bac. Abr. Bailment (B) ; King v. King, 3 P. Wms. 360; Coggs v. Bei-nard, 2 Ld. Raym. 917; Raynolds v. Carter, 12 Leigh (Va.) 170, 37 Am. Dec. 042. 1=2 Min. Insts. 334; Gibson v. Green, 89 Va. 524, 16 S. E. -661, 37 Am. St. Rep. 888, note ; I-Iadlocls; v. Bnlflncb, 31 Me. 246 ; Boyd v. Beet, 29 Ala. 703. lePaxton v. Rich, 85 Va. 378, 7 S. E. 531, 1 L. R. A. 639; Gary v. Pren- tiss, 7 Mass. 63. 17 Carper v. Marshall, 98 Va. 438, 30 S. E. 526; Boswell v. Goodwin, 31 Conn. 74, 81 Am. Dec. 169. 18 Coles V. Withers, 33 Grat. (Va.) 186. 18 2 Washburn, Real Prop. (6th Ed.) § 1119. 2oFiske v. Tolman, 124 Mass. 254. 26 Am. Rep. 659; Slerriman y. Moore^ 90 Pa. 78; Ross v. Kennison, 38 Iowa, 396. (43G) Oh. 23] MORTGAGES — CONDITIONAL SALE DISTINGUISHED. § 541 tion imports, namely, a sale in good faith, and a sale on condition that the vendor may repurchase on certain terms, which must be strictly complied with. Of course, therefore, no equity of redemp- tion is incident to such a sale, because, as it is not the design of the transaction to secure the payment of money, a court of equity has no ground to say the substantial object can as well be reached by the payment at a subsequent time, with interest, as by a prompt compliance with the condition ; nor does it follow that the party can thereby be put in statu quo.'^ As a conditional sale has no equity of redemption incident to it, the attempt is not unfrequently made to give to what is really in purpose and intent a mortgage, the aspect of a conditional sale ; and as the terms in which they are conceived are very similar, it is usually requisite to resort to parol evidence, extrinsic to the deed creating the estate, to determine the true character of the transac- tion. If, upon the whole investigation, it shall appear that a secu- rity for money was intended, it is a mortgage, whatever may be its terms ; and it will be remembered that to a mortgage the right of redemption is inseparably annexed.^ ^ And if, on the other hand, it shall, upon the whole, appear that it was a conditional sale, the per- formance of the condition punctually at the time cannot be dis- pensed with. But doubtful cases are generally declared to be mort- gages.^^ The character of the transaction, however, is fixed in its incep- tion, and is unaffected by subsequent events unless they amount to a new contract.^* § 541. Same — Marks of Distinction — 1. No Price or an Inade- quate One Set on the Property. The marks whereby a mortgage is discriminated from a conditional sale are these : (1) That no price, . or an inadequate one, is set on the property; (2) that the grantor remains in possession ; (3) that there is a covenant or promise obli- 212 Min. Insts. 337; Barrell v. Sabine, 1 Vern. 268; Howard v. Harri.s, 1 Vern. 190, 2 White & Tud. Lead. Cas. Eq. 416, 431; Holladay v. Willis, 101 Va. 279, 43 ^. E. 616. 2 2 Ante, § 536; 2 Min. Insts. 335, 336. 23 2 Min. Insts. 337, 338; Howard v. Harris, 1 Vern. 190, 2 White & Tud. Lead. Cas. Bq. 417, 434, et seq. ; Williams v. Owen, 5 My. & Or. 303 ; Thomp- son T. Davenport, 1 Wash. (Va.) 127 ; Weathersly v. Weathersly, 40 Miss. 462, 90 Am. Dec. 344; Wing v. Cooper, 37 Vt. 169. See Hutzler Bros. v. Phillips, 26 S. C. 136, 4 Am. St. Rep. 699, note. 24 Holladay v. Willis, 101 Va. 274, 43 S. E. 616 ; Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583 ; Green v. Butler, 26 Cal. 595 ; Kearney y. Macomb, 16 N. J. Eq. 189. (437) § 541 MORTGAGES CONDITIONAL SALE DISTINGUISHED. [Ch. 23 ging the grantor to buy back the property; and (4) that the convey- ance does not extinguish the debt.^^ Where no price is contemplated or discussed, or a price grossly inadequate, it is pregnant evidence that a mortgage was in view, and not a purchase on condition, since an omission to state or to have reference to a stipulated price is a natural and usual concomi- tant of a mortgage, but is hardly reconcilable with the notion of a sale and purchase; and a grossly inadequate price, if it were treated as a sale, would savor of fraud.^* § 542. Same — 2. Grantor in Continued Possession of the Prop- erty. The grantor's remaining in possession is strong proof that the transaction is a mortgage, inasmuch as it is usual in such cases, and is not an ordinary concomitant of a sale.^' § 543. Same — 3. Covenant or Promise Obliging the Grantor to Re-Buy. That the grantor should oblige himself to repay the money is natural and proper in a mortgage, but hardly compatible with the idea of a conditional sale. In the latter case the grantor reserves the privilege of paying, but does not bind himself to do so. The want of such a promise does not, indeed, necessarily establish the transaction to be a conditional sale, for if it can be shown other- wise to be a mortgage, a promise, as we have seen, is implied ; but it is an important circumstance, tending to prove that a conditional sale was designed. ^^ § 544. Same — 4. Debt Not Extinguished by the Conveyance. A mortgage is a security for a debt, while a conditional sale is a pur- chase, accompanied by an agreement to resell on particular terms. The existence of a debt is necessary to a mortgage. Hence, if there be no debt, or if the conveyance extinguishes the debt and is so in- tended, so that the plea of payment would bar an action thereon, an agreement then or thereafter with the debtor or grantor giving him an opportunity to reacquire the title is a conditional sale.^' § 545. Mortgage Distinguished from Deed of Trust to Secure Debts. The deed of trust differs in form from a mortgage in that while the latter is a conveyance to the creditor himself (the mort- 2S2 Min. Insts. 3.38; 2 Washburn, Real Prop. (Ctli Ed.) § 989 et seq. 26 2 Min. Insts. 338 ; Howard v. Harris, 1 Vern. 190, 2 White & Tud. Lead. Cas. Eq. 435 et seq.; Conway v. Alexander, 7 Or. 218; Coyle v. Davis, 116 U. S. 108, 6 Sup. Ct. 314, 29 L. Ed. 583 ; Holmes v. Grant, 8 ipaige (N. T.) 213. 27 2 Min. Insts. 338 ; Tuggle v. Bevkelej', 101 Va. 83, 43 S. E. 199 ; Gibson V. Eller, 13 Ind. 124. See 1 Jones, Mortgages, § 274. 28 2 Min. Insts. 338, 339; Howard v. Harris, 1 Vern. 190, 2 ■\^^lite & Tud. Lead. Cas. Eq. 438 et seq. ; Phillips v. Hulslzer, 20 N. J. Eq. 308 ; Chapman V. Turner, 1 Call (Va.) 288, 1 Am, Dec. 514. aeHolladay v. Willis, 101 Va. 279, 280, 43 S. E. 616; Turner v. Kerr, 44 Mo. 429 : Saxton v. Hitchcock, 47 Barb. (N. y.) 220. (438) Ch. 23] MORTGAGES — POWER OF SALE IN MORTGAGEE. § 547 gagee), but upon condition to be void if the debt secured thereby is paid at maturity, a deed of trust to secure the debt is a convey- ance to a third person in trust to sell the land conveyed, if the debt be not paid at maturity, and out of the proceeds, after paying the expense of executing the trust, to pay the creditor his debt with interest, and to pay over the balance to the debtor or his represent- atives.^" The difference in effect between the two forms of incumbrance is mainly to be found in the fact that in case of the mortgage, for the protection of the mortgagor or debtor, it is required of the mortgagee that he must ask the aid of the court of equity to de- cree a foreclosure of the mortgage, a more or less expensive and tedious procedure, while in the case of a deed of trust the trustee, who is supposed to be representing impartially the interests of both creditor and debtor, may be and is entrusted with the authority to sell the property and distribute the proceeds justly and properly, without the necessity of a judicial decree of foreclosure. It is at all events his duty to act impartially and disinterestedly, and he ought to disregard the suggestions of either party inconsistent with the character he holds, and with his impartial duty as the agent of both.^i § 546. Power of Sale Reserved to the Mortgagee — 1. In Case of Chattel Mortgage. In England such a power is uniformly admit- ted, as it is also by the common law in the case of chattels pawned (that is, where the possession is delivered to the creditor), after no- tice to redeem. ^^ § 547. Same — 2. In Case of a Mortgage of Land. In England, it seems, unfortunately, to have been settled that a power of sale, even of lands, may be i-eserved to the mortgagee, whose disposition of the property will be supported in equity. The practice had gain- ed some foothold, when it was powerfully shaken by the objection manifested to it by Lord Eldon, in 1825, in Roberts v. Bozon;^^ but it seems now to have been recognized in many cases. ^* 30 2 iiin. Insts. 340. 312 Min. Insts. 340; 1 Tucker, Com. 103 et seq. ; Quarles v. Lacy, 4 Munf. (Va.) 251; Lane v. Tidball, Gilmer (Va.) 132; Chowning v. Cox, 1 Rand. (Va.) 311, 10 Am. Dec. 530. 32 2 Mln. Insts. 3.50, 351; 4 Kent, Com. 139; Lockwood v. Ewer, 2 Atk. 303 ; Tucker v. Wilson, 1 P. Wms. 201, 1 Bro. Ch. 494. 33 1 Powers, Mortg. 9, note. 34 2 Min. Insts. 3.51; Corder v. Alorgan, IS Ves. 344; Clay v. Sharpe, 6 Ves. 346 ; Crofts v. Powel, Comyn, 003 ; Anon. 6 Madd. 10 ; Wright v. Rose, 7 Sim. & Stu. 323. (439) § 547 MORTGAGES POWER OF SALE IN MORTGAGEE. [Oh. 23 In some of the states of this country the exercise of this power of sale is forbidden by statute; in others, while its exercise is per- mitted, it is so hedged around with statutory restrictions that it is seldom resorted to. In any case, it is a cumulative remedy and does not preclude a foreclosure. "It is one species of foreclosure; but it does not preclude jurisdiction in equit}'." ^^ § 548. Character of Mortgagor's Estate before Default. If there be a stipulation in a common law mortgage that the mortga- gor shall remain in possession until default of payment, he is con- sidered until then tenant for years of the mortgagee. But as soon as default occurs, if he continues in possession at all, it is as tenant at will, or more properly by sufferance, to the mortgagee, but not so as to entitle him to emblements.^* If there be no stipulation (as, however, there usually is) for the continued possession of the premises by the mortgagor, until de- fault, if he occupies theln at all, it is as tenant at will, or perhaps by sufferance ; and in either character he can lay no claim to the emblements.'^ Obviously, the foregoing can have no application to the case of a lien theory mortgage, for under it the mortgagee acquires no es- tate in the land.^^ § 549. Character of Mortgagor's Estate after Default at Law. At law, after default, the legal title is vested in the mortgagee, the mortgagor being merely his tenant at will, or perhaps by sufferance, but entitled to no emblements.'"' But under the lien theory a default works no change in the estate of the mortgagor.*" § 550. Mortgagor's Equity of Redemption. In equity, the mort- gagor has that right to redeem within a reasonable time, which has been already described as an equity of redemption. The time which shall be deemed reasonable is not definitely fixed. As long as the mortgagor continues in possession, no limit is imposed: and if that possession continue adversely a sufficient length of time, it amounts to an extinction of the lien. The right to redeem is liable to be limited, or barred by the lapse of time, only when the mortgagee has been in the uninterrupted enjoyment of the prem- ises for a considerable period. That period has long been fixed at twenty years, by analogy to the bar of a right of entry by the 36 2 Jones, Mortgages, § 1773. 37 2 Min. Insts. 355. 36 2 Min. Insts. 3.35; 2 Bl. Com. 158. ssAnte, § 538. 30 2 Min. Insts. 3oG ; 2 Bl. Com. 159, note (11); Faulkner v. Brocken. brough, 4 Rand. (Va.) 245. 4oAnte, § 538. (440) Ch. 23] MORTGAGES REDEMPTION PAYMENT. § 551 Statute of limitations (21 Jac. I, c. 16), according to the English cases ; but according to the view adopted in this country, in conse- quence of the lapse of that time warranting the presumption of an abandonment of the equity, as of all other equities, and as in like manner it warrants, even in a court of law, a presumption of satis- faction of a debt.*^ There is a class of securities known as Welsh mortgages, whose peculiarity it is to allow a perpetual right of redemption, after an indefinite period of time, the mortgagee entering and taking the profits as a substitute for the interest, until the debt is discharged by the mortgagor, but having no power to enforce the payment of the debt, nor the redemption of the land. It bears, therefore, some resemblance to the vivum vadium, but with this difference, that in the case of the latter security the mortgagee took posses- sion and received the profits towards his debt, whereby the estate pledged worked out, as it were, its own redemption. But both the Weflsh mortgage and the vivum vadium have gone into practical disuse, even in England.''^ In order to exhibit the terms upon which the mortgagor is al- lowed to redeem, it will be necessary to advert to : (1) The pay- ment of the mortgage money, with interest; (2) the tacking of sub- sequent debts to mortgages ; (3) the right to recover any surplus not satisfied by the mortgaged subject. § 551. Same — To Redeem, Mortgagor must Pay Mortgage Debt with Interest. The mortgagor, proposing to redeem, will be ex- pected to pay the principal money, with interest, after deducting therefrom, if the mortgagee has been in possession, the rents and profits derived, or which, with reasonable care, might have been derived, from the mortgaged estate, less the expenses actually in- curred by the mortgagee, as in hiring an agent, etc., but allowing him nothing for his own trouble, even though there be a private agreement to that effect. The mortgagee in possession, besides ac- counting for the actual profits received whilst he held the prop- erty, and such as, but for his willful default, he might have receiv- ed, is also chargeable with any waste or dilapidation committed by him, or suffered by his neglect. A mortgagee may charge taxes paid, and expenses incurred in keeping the estate in repair, and al- so in defending the title, but not for expenses incurred in specula- *i 2 Min. Insts. 357 ; 2 Bl. Com. 159, note (8) ; Howard v. Harris, 1 Vern. 190, 2 White & Tad. Lead. Cas. Eq. 425 et seq. ; Hovenden v. Lord Annesley, 2 Sch. & Lefr. 636; Cholmondeely v. Clinton, 2 Jac. & Wall^. 151; Ross v. Norvell, 1 Wash. (Va.) 14, 1 Am. Dec. 422 ; 2 Jones, Mortgages, § 915. 42 2 Min. Insts. 358; 2 Bl. Com. 157; 1 Wastiburn, Real Prop. 470; Liv- ingston T. Story, 11 Pet. 388, 9 L. Ed. 746. (441) § 551 MORTGAGES— REDEMPTION PAYMENT. [CL. 2S tions or adventures, as in opening mines and quarries, etc., nor for insurance (which may be for his own security), unless by the con- sent of the mortgagor.*^ Whether a mortgagee in possession shall be credited by the value of the permanent and beneficial improvements which he may have put on the premises is a controverted question. It seems that he should always be so credited with them to the extent of the rents and profits ; and the better opinion would seem to be that he is to be allowed the whole value, at least of such improvements as may have been made before the suit to redeem was instituted.** An agreement to set the profits of the property against the in- terest, where they must, in the ordinary course of things, greatly exceed the legal rate, is oppressive (it has been even said to be usurious) and void, and the account of profits is to be taken in the usual way.*^ As to the persons who may claim to redeem, it is a general rule that the right to redeem belongs to any one who has an interest in or lien upon the land. Hence the assignee of the equity of re- demption, the heir or devisee of the mortgagor, or, if the mortgagor were the owner merely of a term for years, his personal representa- tive, a consort entitled to dower or curtesy in the land, a jointress, a subsequent incumbrancer, such as a joint creditor, or a subsequent mortgagee, or an assignee in bankruptcy — all these may offer to redeem.*^ § 552. Same — Conditions of Redemption — Tacking of Debts to Mortgages. When the mortgagor presents himself to redeem, if the creditor has made subsequent advances, or the mortgagor is otherwise indebted to him, it would, of course, be very acceptable to the creditor if he could constrain the debtor to pay the debts subsequently or otherwise contracted, as the price or condition of his being allowed to redeem the land from the mortgage. But in order that the creditor may exact such a condition, either (1) the debt must be of such a character as will constitute a specific charge on the land, or (2) it must be a constituent part of the original agreement that it shall be included in the security.*' 43 2 Min. Insts. 358, 359; Howard v. Harris, 1 Vern. 100, 2 White & Tud. Lead. Cas. Eq. 429, 430. a 2 Min. Insts. 359; 4 Kent, Com. 167; Breckenridge v. Auld, 1 Rob. (Va.) 1.58, 159. *5 2 Min. Insts. 359; Robertson v. Campbell, 2 Call (Va.) 430. 4<5 2 Min. Insts. 359; Howard v, Harris, 1 Vern. 100, 2 AVliite & Tud. Lead Cas. Eq. 415, 424; Gatewood v. Gatewood, 75 Va. 408. Even a grantee from the mortgagor under a voluntary deed may offer to redeem. 2 Min Insts 330. 4' 2 Min. Insts. 359. (442) Oh. 23] MORTGAGES REDEMPTION TACKING OF DEBTS. § 553 § 553. Same — 1. Tacking of Debts Specifically Charged on Mortgaged Land. The ground on which the debt specifically charged on the land by lien, etc., may be tacked to the mortgage (such is the homely phrase of the court of equity) is to avoid a multiplicity of suits, and, as some say, also because he who asks equity should do it. Why (equity asks) allow a redemption with- out paying the additional debt, when the consequence will be the in- stitution of another suit to charge it upon the subject? Why not • avoid the necessity for the second suit by obliging the debtor to pay both debts upon his suit to redeem the mortgage? and especial- ly as thereby the policy will be effectuated of compelling him who asks equity to do equity.^' Hence, as above stated, in order that the principle may apply, the debt proposed to be tacked to the mortgage must be such as will constitute a specific charge on the land after it is redeemed from the mortgage.*" The process of tacking is applicable in all cases where the mort- gaged subject is specifically charged with the subsequent debt. Hence it is applicable as against a personal representative, in case of a mortgage of a term for years, etc., or as against a married wo- man's separate property, etc.^" In general, no simple contract debt constitutes a specific charge against one's lands whilst one is living, and hence the tacking of a subsequent debt is not, in general, allowed against the mortgagor. However, in all cases where the subsequent debt is a specific charge on the lands in the possession of the mortgagor, the principle will apply, as where it is a judgment debt, or a recognizance or a de- linquent tax. So, where the subsequent debt is a specific charge upon the separate estate of a married woman, it will be tacked to a mortgage of the same estate, so as to compel her to pay such debt as the condition of redeeming the mortgage.''^ If the mortgagor be dead, then, at common law, bond debts bind- ing the heir, and debts of record, constituted a specific charge on the lands in the hands of the obligor's heir, and afterwards, by the statute of fraudulent devises (3 & 4 W. & M. c. 14), in the hands of his devisee. Where the debt was of this character, therefore, it might be tacked to the mortgage. In this country, generally, all debts are a specific charge on a decedent's lands, and so all debts may be thus tacked. 48 2 Min. Insts. 360; Woodson v. Perkins, 5 Grat. (Va.) 3.11. 4 9 2 Min. Insts. 362; Woodson v. Perkins, 5 Grat. (Va.) 3.j2. 60 2 Min. Insts. 362 ; Woodson v. Perkins, 5 Grat (Va.) 3.j2. 61 2 Min. Insts. 361 ; Woodson v. Perkins, 5 Grat. (Va.) 302 ; Brown v. Simons, 44 N. H. 475. (443) § 553 MORTGAGES KBDEMPTION TACKING OF DEBTS. [Ch. 23 But as against a subsequent incumbrancer, the assignee of an equity of redemption, or a subsequent purchaser from the mort- gagor's heir or devisee, the tacking in question is not allowed, as they manifestly do not come within the principle.^^ § 554. Same — 2. Mortgage to Secure Future Advances. A mortgage or deed of trust may contemplate and provide for se- curing future advances, as well as the advances presently made. Such a mortgage or deed of trust is always valid and binding as against the mortgagor and his representatives, and those claiming under him with notice that such future advances are to be made, or without valuable consideration. And the registry of the mortgage or deed of trust is notice to subsequent purchasers and incumbran- cers of the existence and extent of the obligation thus incurred by the mortgagee, provided the mortgage or deed of trust is sufficient- ly clear, certain and accurate to give the necessary information, so that subsequent parties may, by inspection of the deed and by com- mon prudence and ordinary vigilance, ascertain the extent of the in- cumbrance.^^ This case of tacking rests for its scope and extent entirely upon the contract of the parties, as disclosed in the mort- gage or deed of trust. ^* A different question is presented when we come to consider the right of the mortgagee or creditor secured by such a mortgage or deed of trust to make subsequent advances in accordance with the terms of the deed after he has notice of the fact that a new mort- gage subsequent to his has been placed upon the same land or that the land has been conveyed to another. The better view seems to be that if the original mortgagee has bound himself to make future advances when demanded, he may make such advances and they will take priority, under his original mortgage or deed of trust, over the 52 2 Min. Insts. 361. 53 2 Min. Insts. 360; United States v. Hooe, 3 Cr. 73; Shirras v. Caig, 7 Cr. 34; Jones v., New Yorli Guaranty & I. Co., 101 U. S. G22, 2.5 L. Ed. 1030 ; Alexandria Saving Inst. v. Thomas, 29 Grat. (Va.) 487 ; Didier v. Patterson, 93 Ya. 534, 2.5 S. E. 661; Robinson v. Williams. 22 X. T. 380; Divver v. JIcLaughlin, 2 Wend. (N. Y.) 596, 20 Am. Dec. 6.5.5, 658, note ; Com- mercial Bank v. Cunningham, 24 Pick. (Mass.) 270, 33 Am. Dec. 322: Bos- well V. Goodwin, 31 Conn. 74, 81 Am. Dec. 169; Summers v. Rbos, 42 Miss. 749, 2 Am. Rep. 653; McDaniels v. Colvin, 16 Vt. 300, 42 .im. Dec. 512; Louisville Banking Co. v. I^onard, 90 Ky. 106, 13 S. W. 521 ; Tully v. Har- loe, 35 Cal. 302, 95 Am. Dec. 102. The future advances constitute a sufficient consideration to support the assignment as to existing creditors of the grantor, and it is not to be set aside as to them as being voluntary, merely because there are no existing debts secured thereby. Alexandria Saving Inst. V. Thomas, supra. 5*2 Min. Insts. 260. (444) Ch. 23] MORTGAGES FUTURE ADVANCES. § 554 claims of a subsequent bona fide incumbrancer or purchaser, though at the time of making such advances he has notice of the existence of the subsequent deed ; ^^ though some of the decisions take the view that the right of the prior mortgagee to make advances ceases, as against a subsequent purchaser or incumbrancer, in all cases as soon as he receives notice of such subsequent deed.^° Yet another question arising in this connection relates to the effect of the registry of a subsequent incumbrance as notice, so far as concerns later advances made by the original mortgagee. Thus where M. executes a mortgage to A. to secure future ad- vances, and subsequently executes another mortgage on the same land to B., which is recorded, is such registry notice to A. of the existence of B.'s incumbrance when A. comes to make later ad- vances under the original mortgage to A.? In other words, is A. a subsequent purchaser (as to the later advances) taking by a later title than B., or does he (even as to such later advances) take un- der a title prior to B.'s? '^^ Here, again the authorities are in conflict, some holding that the original mortgage constitutes a separate lien for each advance as it is made, at least when the making of the advances is volun- tary, so that as to any advances made after the recordation of a sub- sequent incumbrance the mortgage securing such advances is sub- sequent and subordinate thereto ; the mortgagee being thus bound to consult the records before making an advance.^* Other authori- ties take the view that all the advances, even those later than the subsequent incumbrance, are secured by the one single mortgage, which is itself prior to the subsequent incumbrance, and hence that the registry of the subsequent incumbrance, being notice only to subsequent purchasers, is not notice to the prior mortgagee, who ssAlexaiidria Saving Inst v. Thomas, 29 Grat (Va.) 489; Heintze v. Bentley, 34 N. J. Eq. .!i62 ; Boswell v. Goodwin, ,31 Conn. 74, 81 Am. Dec. Kifi : Brhikmeyer v. Browneller, 55 Ind. 487; McClure v. Roman, 52 Pa. 4."iS: Union Nat Banli v. Moline, Milburn & Stoddard Co., 7 S. D. 201. 7.3 X. W. 527; Tapia v. De Martini, 77 Cal. 383, 19 Pac. 641, 11 Am. St Rep. 288, note. s6 See Hopkinson v. Rolt, 9 H. L. Cas. 514; Griffin v. New Jersey Oil Co., 11 N. J. Eq. 49; Spader v. Eawler, 17 Ohio, 371, 49 Am. Dec. 461; Acker- mau V. Hunsicker, 85 N. Y. 43, 39 Am. Rep. 621 ; McDaniels v. Colvin, 16 Vt. 300, 42 Am. Dec. 512 ; Ladue v. Detroit & M. R. Co., 13 Mich. 380, 87 Am. Dec. 7.j9. 5 7 The question is raised, but not decided, in Alexandria Saving Inst. v. Thomas, 29 Grat. (Va.) 489. 68 Ladue v. Detroit & M. R. Co., 13 Mich. 380, 87 Am. Dec. 759; Spader V. Lawler, 17 Ohio, 371, 49 Am. Dec. 461; Bank of Montgomery County's Appeal, 36 Pa. 170 ; 2 Tiffany, Real Prop. § 513. (445) § 555 MOETGAGBS — PERSONAL ACTION FOR DEFICIT. [Ch. 23 may make the advances until he has actual knowledge of the sub- sequent incumbrance.^^ § 655. Mortgagee's Right to Recover Deficit by Personal Ac- tion. If the property mortgaged is not sufficient to satisfy the debt, or if, being personalty, it be lost or destroyed, it seems to be an established principle, as in justice and good sense it ought to be, that in the absence of any stipulation to the contrary the mortgagee is a creditor of the mortgagor for the surplus left unpaid. Every pledge implies a loan, and every loan implies a debt, so that, even although there be no express promise to pay, one is always implied from the mere existence of a mortgage or pledge.""* The character of the action to be brought will depend at common law on whether the promise is contained expressly in the deed of mortgage or of trust, or in some other instrument under seal, or whether it is merely implied, or, if express, is in an instrument not under seal. In the former case the action may be either debt or covenant, and in the latter debt or trespass on the case in as- sumpsit."^ The mortgagee may pursue concurrently his remedy in equity upon the mortgage, and his remedy at law upon the accompanying promise, whether express or implied, and there seems to be no suffi- cient reason why the court of equity itself may not, upon a bill to foreclose the mortgage, at once decree the sale of the mortgaged subject, and pronounce a personal decree against the mortgagor for any surplus which the proceeds of the sale may leave unsatisfied. To do so consults economy and dispatch, tends to prevent multi- plicity of suits, and is in conformity with the principle that when equity obtains legitimate cognizance of a subject, for the purpose 503 Pomeroy, Eq. Jur. § 1199; Union Nat. Bank v. Moline, Milburn & Stoddard Co., 7 N. D. 201, 73 N. W. 527; Ackerman v. Hunsicker, 80 N. Y. 43, 39 Am. Rep. 621; Ward v. Cooke, 17 N. J. Eq. 93; Frye v. Bank of Illinois, 11 111. 367; McDaniels v. Colvin, 16 Vt. 300, 42 Am. Dec. 512; Tapia v. De Martini, 77 Cal. 383, 19 Pac. 641, 11 Am. St. Rep. 288, note. eo2 Min. Insts. 362; Williams v. Price, 5 Munf. (Va.) 527; Bumgardnev V. Allen, 6 Munf. (Va.) 445 ; Raynolds v. Carter, 12 Leigh (Va.) 170, 37 Am. Dec. 642. See Turk v. Ritcliie, 104 Va. 587, 52 S. E. 339. 012 Min. Insts. 362; 1 Tucker, Com. 114; Ponblanque, Eq. B. Ill, c. 1, § 12 ; Drummond v. Richards, 2 Munf. (Va.) 337. As to whether there is a promise to be derived by construction from the words of the instrument or not, see Bac. Abr. Debt (A) ; Id., Obligation (B) ; 1 Dy. 226 ; Baker v. Fawcett, referred to by Tucker, P., in Powell v. White, 11 Leigh (Va.) 318; 2 Rob. Pr. (2d Ed.) 40; Courtney v. Taylor, 6 Man. & Gr. 851; Lytle v. Pope, 11 B. Mon. (Ky.) 311; James v. Cochrane, 7 W. H. & G. 177. It de- pends upon the intention of the parties, and in general the ordinary terms of a deed of trust do not .iustify the implication of an actual promise to pay. Wolf V. Vlolett, 78 Va. 57, 60. (446) Ch. 23] MORTGAGES — LAPSE OF TIME TO REDEEM. § 556 of relief, it administers complete justice, without turning the par- ties around to another tribunal."^ This is the practice of the Unit- ed States Circuit Courts. °^ § 556. Effect of Lapse of Time on Mortgagor's Right to Re^ deem. Redemption is not allowed without some regard to the lapse of time; not that the case is within the statute of limitations, but, although the mortgagor is indulged with considerable latitude in point of time for redemption, because property is usually mort- gaged for much less than its real value, and when a mortgagee re- ceives his principal, interest, and costs, he cannot complain of an injury, yet to this indulgence there is a necessary limit. And as it is extremely difKcult for a mortgagee who has been long in pos- session to render an account of profits, the courts of equity have laid it down as a rule that, where the mortgagor has suffered the mortgagee to continue for twenty years after forfeiture in the quiet and uninterrupted possession of the lands mortgaged, the right of redemption shall be presumed to be abandoned."* Whether the bar to redemption arises from the analogy of the statute of limitations, or from mere presumption of abandonment, such as occurs in case of all equitable rights, is a question of some moment ; for, if it proceeds from the analogy of the statute of limi- tations, the period would be different in different states. But whatever may be the source and ground of the limitation, it is admitted to be a mere presumption, capable of being repelled by circumstances sufficient to satisfy the mind that, in the par- ticular case, it is ill-founded. Thus, not only will it be repelled by the existence of any of the impediments which would repel the bar of the statute (infancy, insanity, etc.), but also by any circumstan- ces of fraud or oppression on the part of the mortgagee tending to clog or embarrass the redemption, and by even a slight act of the mortgagee, or his representative, acknowledging the continued right of the mortgagor, such as by keeping private accounts of the profits of the estate, as if it were still redeemable, especially if kept with the mortgagor, etc., or by conveying subject thereto, or offering to purchase it, or even by a parol recognition in conversation of the mortgagor's right, provided it were clear and unequivocal.""^ 62 2 Min. Insts. 362, 303; 4 Kent, Com. 183. 6 3 Equity Rule 92. 64 2 Min. Insts. 370, 371 ; 2 Rob. Pr. (1st Ed.) 253 ; Aggas y. Pickerell, 3 Atk. 225 ; Jones v. Comer, 5 Leigh (Va.) 353 ; Hughes v. Edwards, 9 Wheat. 497, 6 L. Ed. 142; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 135, 8 Am. Dec. 467; Slee v. Manhattan Co., 1 Paige (N. Y.) 48. 65 2 Min. Insts. 357; Turnbull v. Mann, 99 Va. 46, 37 S. E. 288; Snavely (447) § 556 MORTGAGES LAPSE OF TIME TO REDEEM. [Ch. 23 There is, indeed, a very marked distinction between the personal obligation of the debtor and the security furnished by a lien ex- pressly reserved or a mortgage, with respect to the bar of the stat- ute of limitations. Thus, in Hanna v. Wilson, ^° it was held, that, although an action at law might be barred by the statute of limita- tions, yet the right of the creditor to resort to the lien, in that case the vendor's lien, being a right in equity, is not affected by any lapse of time, short of the period sufficient to raise a presumption of payment.^^ § 557. Character of Mortgagee's Estate before Default. At law, before default, the mortgagee (under the common-law theory) has always the legal estate, with the right to the possession or not, ac- cording to the stipulations of the mortgage deed.®* And hence such a mortgagee, after giving notice of the mortgage to the tenant in possession, under a lease prior to the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to what accrues afterwards, and he may distrein for it after such no- tice.'"' In equity the common-law mortgagee is a trustee for the mort- gagor, and, under either theory, if in possession, is subject to ac- count for rents and profits, and for any waste committed by him, with a lien on the premises for his debt, but obliged to yield posses- sion if the money be paid according to the condition.'" § 558. Character of Mortgagee's Estate after Default. At law, after default in performing the condition, the common-law mort- gagee is, to all intents and purposes, the legal owner of the land, in V. Piclde, 29 Grat. (Va.) 38; Howarii v. Harris, 1 Vern. 190, 2 White & Tud. Lead. Cas. Eq. 425 et seq. 6 6 3 Grat. (Va.) 245, 46 Am. Dec. 190. 67 2 Min. lusts. 371 ; Angell, Lim. § 73. The same doctrine was applied in the case of a mortgage, in Thayer v. Mann, 19 Picls;. (Mass.) 535, and is confirmed by Magruder v. Peter, 11 Gill & J. (Md.) 217; Borst v. Corey, 15 X. Y. 505 ; Bank of Metropolis v. Guttsehllck, 14 Pet. 29, 10 L. Ed. 335 ; Coles V. Withers, 33 Grat. (Va.) 196; Smith v. Washington City, V. M. & a. S. R. Co., 33 Grat. (Va.) 620. OS 2 Min. Insts. 356; 2 Bl. Com. 158; Erskine v. Townsend, 2 Mass. 493, 3 Am. Dec. 71 ; Reading of Judge Trowbridge, 8 Mass. 551 ; Goodwin v. Rich- ardson, 11 Mass. 469; Fay v. Brewer, 3 Pick. (Mass.) 203; Flagg v. Plagg, 11 I'ick. (Mass.) 475; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Fay v. Cheney, 14 Pick. (Mass.) 399 ; Bradley v. Fuller, 23 Pick. (Mass.) 49.' 69 2 Min. Insts. 356; Bac. Abr. Mortgage (C) ; 2 Th. Co. Lit. 36, note (Z) ; Ex parte Wilson, 2 Ves. & B. 252 ; Babcock v. Kennedy, 1 Vt. 457, 18 Am. Dec. 697; Stouey v. Shultz, 1 Hill, Eq. (S. C.) 405, 27 Am. Dec. 437; Moss V. Crallimore, 1 Dongl. 282, 283; Birch v. Wright, 1 T. R. 383, 384. 70 2 Min. Insts. 3.56. (448) Ch. 23] MORTGAGES — EJECTMENT BY MORTGAGEE. § 560 whom the legal estate is vested, and who is entitled to the posses- sion."^ But in equity the mortgagee is reckoned a mere trustee for the mortgagor, accountable for rents and profits, and for waste, and to be allowed for expenses actually incurred, but not a compensation for his trouble.'^ § 559. Mortgagee's Remedies by Action at Law — 1. Action for the Money. The creditor, instead of enforcing his claim in rem against the mortgaged subject, may bring an action at law to recov- er the money, unless it has been expressly stipulated that he shall look to the property only. Even though there be no promise to pay contained in the mortgage itself, yet, as we have seen, every pledge implies a debt, and a promise to pay it. If the promise to pay is express and under seal, whether contained in the deed of trust or mortgage, or in some other specialty, the proper action for the money at common law is debt or covenant ; if not under seal, wheth- er express or implied, the action is debt or trespass on the case in assumpsit.'' The mortgagee may pursue his remedy thus at law, upon the promise to pay, whether express or implied, and his remedy in eq- uity upon the mortgage, concurrently; and it seems he may proceed in equity at the same time to foreclose the debtor's equity of re- demption, and to obtain a personal decree against him for any sur- plus which may remain unsatisfied by the proceeds of the mortgaged subject.''* § 560. Same — 2. Action of Ejectment for the Land. If the common-law mortgagor remains in possession, the mortgagee may sue in ejectment to recover the land whilst he has a bill of fore- closure depending. He may pursue both his equitable and his legal remedies at the same time.'"' And for the purpose of securing the rents and profits of the land, the mortgagee may bring ejectment, whether before or after default, unless restrained by the terms of the mortgage, or by some stat- ute.'« 712 Jlin. Insts. 372; Bac. Abr. Mortgage (C). See Townsliend v. Thom- son, 139 N. y. 152, 34 N. E. 891. T2 2 Min. Insts. 372; Bac. Abr. Mortgage (C). 73Ante, § 555; 2 Min. Insts. 374, 375; 4 Kent, Com. 182 et seq. 7*2 Min. Insts. 375; 4 Kent, Com. 183. TsTorrey v. Cook, 116 Mass. 163; Erickson v. Rafferty, 79 III. 209. T6 2 Washburn, Real Prop. (6th Ed.) § 1044. In, some states a mortgagee even under the common-law theory is by statute denied the right of pos- session of the land until condition broken. Minor & W.Real Prop.— 29 (449) § 561 MORTGAGES — FOEECLOSDRE IN EQUITY. [Oh. 23 § 561. Mortgagee's Proceedings in Equity to Foreclose. The mortgagee, as soon as default of payment occurs, may file a bill to foreclose (as the technical phrase is) the mortgagor's equity of re- demption; that is, to appoint a time, usually six months, although it may be less, within which, if the money be not paid, the mortgagor shall be forever foreclosed, or barred of his right to redeem. In England, the practice is to decree foreclosure of the equity of re- demption, and that the mortgagee have the absolute right of prop- erty; and in some of the states of this country, in which the com- mon-law mortgage is retained, the same rule prevails. This is term- ed strict foreclosure. In other states, a sale of the property is de- creed, and, after payment of the debt and costs, the residue, if any, is returned to the debtor or his assignee. This is termed equitable foreclosure, and it is the only method of foreclosure by judicial process in those states which adhere to the lien theory.''' § 562. Same — Proper Parties to Bill to Foreclose. All junior in- cumbrancers existing at the filing of the bill and all persons stand- ing in privity with the mortgagor subsequent to the mortgage are to be made parties, partly in order to prevent multiplicity of suits, and that the proceeds of the mortgaged estate may be duly and finally distributed, and partly in order to give security and stability to the purchaser's title, since he can take a title only against the parties to the suit. The rule is that all persons who have a right to redeem should be made parties. Prior incumbrancers have no right to redeem, and therefore they are not, in general, proper parties ; the decree of fore- closure taking effect subject to their prior rights.'^ The bill is usually filed by the creditor, or his assignee, or his personal representative.'^ § 563. Who Entitled to Mortgage Money upon Mortgagee's Death. The doctrine as to the person to whom mortgage money is payable was settled so early as the reign of Charles II, by Lord Nottingham, in the leading case of Thornborough v. Baker,^" upon the principle that the mortgage was only a security for the money due, which came from the personal estate, and therefore, in the ab- sence of any stipulation to the contrary, the proceeds shall return thither again. If there is any direction in the mortgage itself as to who is to receive the money, it is to be respected. If there be no such direction, it is to be paid to the mortgagee, if he be living, or to "2 Jones, Mortgages, § 1318 et seq. 78 1 Foster, Fed. Prac. § 44 ; 2 Jones, Mortgages, § 1439. 7 9 2 Min. Insts. 376, 377; 4 Kent, Com. 18-5 et seq. 80 3 Swanst. 628, 2 White & Tud. Lead. Gas. Eq. 403 et seq. (450) Oh. 23] MORTGAGES — LIABILITY ON DEATH OF MORTGAGOR. § 564 his assignee. If the mortgagee be dead, not having assigned the mortgage, or debt, the money is to be paid to his personal represen- tative, and not to his heir, although, in case of default in a mortgage in fee, the legal title descends to the heir. Where the heir is, by the terms of the mortgage itself, designated to receive it, it must be paid to him accordingly; and where it is expressly appointed to be paid either to the heir or to the personal representative in the disjunc- tive, the mortgagor, at the day of payment, may pay it to which he will ; but if he make default, and pay it not at the day, his election is gone, and he must pay the personal representative.'^ This proposition is not to be understood as if the mortgagee may not, by his will, vest the beneficial interest in the heirs, or in whom he will ; but it is apprehended that it will pass as personalty, and therefore must go into the hands of the personal representative, like any other personalty disposed of by will, and be subject to the payment of the decedent's debts, after which the personal represen- tative will hold it as trustee for the person to whom the will gives it. '2 Upon similar reasoning it is held that after the death of a creditor secured by a deed of trust on real property, there can be no valid sale under the deed of trust until the creditor's personal representa- tive has qualified upon his estate, except with the consent of the debtor and of all persons interested in the debt secured.'^ § 564. Who Liable for Mortgage Money upon Mortgagor's Death. The premises mortgaged are a pledge for a debt, which is constituted by the mortgage itself. If there be a covenant in the mortgage deed, or a collateral bond for the payment of the money, it is a specialty debt; otherwise, a simple contract debt. Hence, in either case, the mortgagee is a creditor of the mortgagor, and is en- titled to be paid out of the personal assets of the mortgagor, as well as out of the mortgaged estates.^* As long as the mortgagor survives, no question arises ; but upon his death it becomes an interesting inquiry whether the debt (which the creditor may charge on either fund) shall ultimately be a burden on the mortgaged subject, or on the general personal estate of the 'debtor. The general principle in equity is that the fund which re- ceived the benefit shall make satisfaction ; and as, for the most part, the personal estate was increased by the money secured, so the per- sonal estate shall be first applied towards the payment of the mort- 81 2 Min. Insts. 382 ; 2 Th. Co. Lit. 55, 52, note (L, 1) ; 4 Kent, Com. 161. 82 2 Min. Insts. 382. 83Armistead v. Klrby, 106 Va. 585, 56 S. E. 570. 84 2 Min. Insts. 385, 386. (451) § 564 MORTGAGES — LIABILITY ON DEATH OP MORTGAGOR. [Ch. 23 gage. Hence the personal representative of a mortgagor is, in gen- eral, compellable to redeem a mortgage for the benefit of the heir, and a fortiori for the benefit of the devisee. This principle is well illustrated by the case of Dandridge v. Minge.*° In that case the heir and distributee of the mortgagor was a feme covert, and it was held that it was the duty of the per- sonal representative of the mortgagor to apply the personal assets to redeem the land for the benefit of the married woman and her heirs, and that no arrangement between such representative and the husband would justify the diversion of the assets from that object, because in s'uch case she loses her real estate, unless the husband shall think fit to pay the debt, and he would have held the personal assets divested of any claim on the part of her and her heirs. *^ This, the natural order, may, of course, be reversed at the pleas- ure of the decedent, who may exonerate his personal estate, and charge his debts, one and all, first on the real estate, although such an intent must be clearly manifested, which is not sufficiently done by directing his debts to be paid out of his lands, because he may have designed by that to create only an auxiliary fund. He must not only charge his real, but must exempt his personal, property. Such an exemption is effected, not, indeed, as against the creditor, but as against the real representative, that is, the heir of the testator, by the specific gift of a chattel in his will.*' Where the mortgage debt was not originally contracted by the decedent, but the lands come to him by purchase or descent, sub- ject to the mortgage, as the reason for the doctrine above stated no longer exists, the doctrine itself is not applicable. The mortgaged estate is the primary fund for the payment of the debt, and the personal estate, if liable at all, is merely auxiliary. And so it is, a fortiori, where one purchases an equity of redemption, unless, in- deed, by unequivocal acts he adopts the mortgage debt as his own.^^ § 565. Mortgagee's Assignment of the Debt Secured by Mort- gage. A mortgage being a mere security for the debt, and col- 80 4 Rand. (Va.) 397. 86 2 JXiii. Insts. 386; 1 Story, Eq. Jur. § 571. See Frencli v. Vradenburg, 10.J Va. 16, 52 S. E. 695, 3 L. E. A. (N. S.) 898, 115 Am. St. Rep. 838; El- liott V. Carter, 9 Grat. (Va.) .'3-11 . 87 2 Min. lusts. 386; Foster v. Crenshaw, 3 Muuf. (Va.) 514; McLoud v. Roberts, 4 Hen. & JI. (Va.) 444 ; Ryder v. Wager, 2 P. Wms. 329, 335 : Aldrieh v. Cooper, 8 Ves. 382, 2 White & Tud. Lead. Cas. Eq. 17.j; Aucaster V. Mayer, 1 Bro. Ch. 454, 1 White & Tud. Lead. Cas. Eq. 432 et seq., 446 et seq., 451 et seq. 88 2 Min. Insts. 386, 387; Aneaster v. Mayer, 1 Bro. Ch. 4."i4, 1 White & Tud. Lead. Cas. Eq. 447, 454; Daniel v. Leitch, 13 Grat. (Va.) 207. (132) Ch. 23] MORTGAGES ASSIGNMENT OP SECURED DEBT. § 565 lateral to it, an assignment of the debt, which is the principal, will, in equity at least, carry with it the mortgaged property, which is only the accessory, and which cannot exist independently of the debt to which it is the incident. And, on the other hand, an assign- ment of the mortgage will prima facie transfer the debt.^' The mode of assignment may be very various. Whatever would give the money will carry the estate in the land along with it to every purpose ; and so whatever will extinguish the debt will extin- guish the mortgage. On the other hand, as long as the debt re- mains capable of identification, however changed may be the se- curity (as in case of negotiable notes secured by mortgage, and re- newed from time to time), the mortgage continues to subsist.'" No particular form of assignment is required, nor, though the obligation be under seal, is it necessary that the assignment there- of be in writing. If the consideration be proved (as it probably would be prima facie by a written assignment), and the intention to assign be apparent, the equitable title passes. Hence the mere delivery of the written evidence of the debt, with intent to transfer it, proves and constitutes an assignment. °^ It is to be observed in respect to the assignment of mortgages, notwithstanding that much insisted on, and in its time very whole- some, rule of the common law which, says Lord Coke, "the great wisdom and policy of the sages and founders of our law have pro- vided, that no possibility, right, title, nor thing in action shall be granted or assigned to strangers, for that would be the occasion of multiplying of contentions and suits, of great oppression of the people, and the subversion of the due and equal execution of jus- tice," °^ yet in the courts of equity such assignments, have been 89 2 Min. Insts. 372; 3 Pomeroy, Eq. Jur. § 1210; Carpenter v. Lougan, IG Wall. 271, 21 L. Ed. 313; Morris v. Bacon, 123 Mass. 58, 25 Am. Rep. 17; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N. E. 586, 3 Am. St. Kep. 655; Mitchell v. Ladew, 36 Mo. 526, 88 Am. Dec. 156; Runyan v. Mersereau, 11 Johns. (N. Y.) 534, 6 Am. Dec. 393; Green v. Hart, 1 Johns. (N. y.) 580; Stewart v. Preston, 1 Fla. 11, 44 Am. Dec. 621; Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Williams v. Teachey, 85 N. C. 402; Barrett v. Hinckley, 124 111. 32, 14 N. E. 863, 7 Am. St. Rep. 331. 90 2 Min. Insts. 372; Artrip v. Rasnake, 96 Va. 284, 31 S. E. 4; Stimpson V. Bishop, 82 Va. 198. See 1 Lom. Dig. 440; Howard v. Harris, 1 Vern. 190, 2 White & Tud. Lead. Cas. Eq. 446, 447; Owathmeys v. Ragland, ] Rand. (Va.) 466; Schofield v. Cox, 8 Grat. (Va.) 535, 536; Magie v. Rey- nolds, 51 N. J. Eq. 113, 26 Atl. 150. 912 Min. Insts. 384; 2 Rob. Pr. (2d Ed.) 222 et seq., 257 et seq. ; 2 Story, Eq. Jur. § 1040b ; Bank of Marietta v. Pindall, 2 Rand. (Va.) 475 ; 2 White & Tud. Lead. Cas. Eq. 231 et seq. 92 2 Min. Insts. 383 ; Lampet's Case, 10 Co. 48a. (453) § 566 MORTGAGES ASSIGNMENT OF SECURED DEBT. [Ch. 23 from a very early period admitted, and the rights of the assigns pro- tected and enforced. Indeed, even the courts of law^ have long since come to recognize the assignee's rights so far as to permit him to prosecute his demand in the name of the assignor, without the lat- ter's assent; the court intervening, if need be, to inhibit the assignor from denying the use of his name, or in any wise obstructing or in- terfering with the suit."^ § 566. Same — Assignment of Nonnegotiable Instrument Secur- ed by Mortgage or Deed of Trust. The assignee of a debt or chose in action (not negotiable) secured by mortgage or deed of trust, taking only an equitable interest, takes it, as well as the mortgage or deed of trust securing it, subject to all the equities which the debtor has or may acquire against the assignor before the debtor has notice of the assignment, or, as it is sometimes expressed, the assignee cannot be in a better condition than the assignor. Nor does it afiect the application of this principle that the assignment is for value, and without notice, nor that after assignment the debtor acknowledged the demand to be just.*"* But whilst no acknowledgment made after assignment will pre- clude the debtor from proving, if he can, any equity against the assignor, acquired before he had notice of the assignment, he will be estopped from setting up any equity or defense, however well founded originally, if by his assurance made beforehand he has in- duced the assignee to acquire the debt.^'^ And upon like principles, if, even after notice of the assignment, the debtor expressly or impliedly promise payment to the assignee, he will be concluded thereby, if to allow the retraction of the prom- ise would operate a fraud upon the assignee, as when, relying upon the debtor's promise, the assignee takes no steps, which he might otherwise have successfully taken, to get payment or additional se- curity from the assignor, who afterwards becomes insolvent. "^ 93 2 Min. Insts. 383, 384; 2 Story, Eq. Jur. §§ 1039, 1040; Row v. Dawson, 1 Ves. Sr. 331, 2 White & Tud. Lead. Cas. Eq. 201, 205. 94 2 Mm. Insts. 384 ; 2 Story, Eq. JuT. § 1047 ; Row v. Dawson, 1 Ves. Sr. 331, 2 White & Tud. Lead. Cas. Eq. 215, 233, et seq. ; Shippen v. Whit- tier, 117 111. 282, 7 N. E. 642. The principle that an assignment of the debt works in equity an assignment of the mortgage security Is attended by no difficulty in those states in which the foreclosure proceedings are equitable. But in the states which adhere to the common-law theory of mortgage and the strict foreclosure thereof, inasmuch as the equitable assignment still leaves the legal estate outstanding in the mortgagee, a strict foreclosure, which only bars the equity of redemption, would still leave the mortgagee the legal owner of the land, although as trustee for his assignee. 95 2 Min. Insts. 385. «e 2 Min. Insts. 385 ; 2 Pomeroy, Eq. Jur. 812. (454) Ch. 23] MORTGAGES ASSIGNMENT OF SECURED D-EBT. § 568 § 567. Same — Assignment of Negotiable Instrument Secured by Mortgage or Deed of Trust. While, as has been shown, the ordi- nary rule is that, where a debt secured by mortgage is assigned, the mortgage is an incident of the debt and passes along with it, yet if the debt secured be negotiable an important question arises whether the mortgage is so intimately connected with the debt as to partake of its characteristic or negotiability. In other words, if the debt be evidenced by a negotiable note secured by mortgage, and the note is assigned to a bona fide holder for value and without notice of equi- ties, does the mortgage which secures the note pass to the assignee likewise free from equities ? Although perhaps the majority of decisions are in favor of the doctrine that the mortgage partakes of the nature of the note it se- cures, so as to render it negotiable also, thus preventing the mort- gagor from setting up antecedent equities in defense of foreclo- sure,^'' the better view on principle (and sustained by very respect- able authority) is believed to be that the holder of the negotiable security takes the mortgage subject to equities, on' the ground that he has two distinct securities, to either of which he may resort, the one a negotiable note, the other the mortgage, the latter being mere- ly an additional and collateral security; ^^ that the two together do not constitute the negotiable security, but only the note ; and that the mortgage is and remains a mere common-law security, not negotiable.*" § 568. Same — Assignment of Mortgage Debt in Successive Par- cels. When several bonds, notes or other demands are secured by one mortgage, deed of trust or other lien, and are assigned in suc- cession to different persons, it is competent for the parties, by agree- ment, to fix the order in which they shall be paid out of the secur- ity; and this agreement may be inferred from the facts surrounding the transaction. But if there are no facts from which such infer- ence can be drawn, the courts are at variance as to how the applica- tion shall be made in case the property is not sufficient to pay all 9 7 Carpenter v. Longan, IC Wall. 271, 21 L. Ed. 313; Taylor v. Page, a Allen (Mass.) 86 ; Duncan v. Louisville, 13 Bush (Ky.) 378, 26 Am. Rep. 201 ; Thompson v. Maddux, 117 Ala. 468, 23 South. 157; Paige v. Chapman, r,H N. H. 333; Kelley v. Whitney, 4.5 Wis. 110, 30 Am. Rep. 697; Burhans v. Hutcheson, 25 Kan. 62.5, 37 Am. Rep. 274; Barnum v. Phenix, 60 Mich. 388, 27 N. W. 577 ; Keyes v. Wood, 21 Vt. .331. 98 See Coles v. Withers, 33 Grat. (Va.) 186. 99 2 Pomeroy, Eq. Jur. § 704, note; 3 Pomeroy. Eq. ,Tur. § 1210, note (2): Baily v. Smith, 14 Ohio St. 396, 84 Am. Dec. .■>s.5 ; Johnson v. Carpenter, 7 Minn. 176 (Gil. 120) ; Kleeman v. Frisbie, 63 111. 482 ; Tabor v. Foy, 56 Iowa, 539, 9 N. W. 897. (455) § 569 MORTGAGES KELEASE TO MOETGAGOE. [Ch. 23 the demands. (1) In some states the demands are to be paid in the order of the date of maturity;^ (3) in others, ratably without ref- erence to time at all ; ^ and (3) in others, in the direcr order of the dates of their assignment, upon the principle that the assignment of the first bond or note to the first assignee carries with it (without regard to the date of maturity) the transfer of so much of the lien as is necessary to pay the demand assigned, and thereby gives to such assignee a preference over the assignor, who then remained the holder of the other claims embraced in the lien ; and this preference would not be taken away by subsequent assignments ; and so with each assignee thereafter in succession.^ In other words, upon the first assignment the assignee, upon a deficiency of the fund, would certainly be preferred to the assignor, and any subsequent assignee of other of the notes could only take subject to existing equities ; and standing in the position of the assignor, he must, like him, be ex- cluded from coming in on the security until the claim of the first assignee is satisfied.* § 569. Same — Assignment or Release of Mortgage Debt to Mortgagor. Since the mortgage is a mere incident of the debt, and passes and is extinguished (in equity) by whatsoever transac- tion passes or extinguishes the debt which it secures, it follows that a release or assignment of the debt to the debtor, extinguishing the debt, operates also as a release or discharge of the mortgage. But whilst a release of the debt, which is the principal, discharges the mortgage, which is the incident, it will easily be perceived that the converse is not true. A release of the mortgage does not dis- charge the debt, unless the tenor of the release prove such to 1 Isett V. Lucas, 17 Iowa, 503, 83 Am. Dec. 572 ; Mitchell v. Ladew, 36 Mo. ."i20, 88 Am. Dec. 156 ; Minor v. Hill, 58 Ind. 176, 26 Am. Rep. 71 ; Winters V. Franklin Bank, 33 Ohio St. 2.50; Wilson v. Hayvvard, 6 Fla. 171; Wood V. Trask, 7 Wis. 566, 76 Am. Dec. 230; Funk v. McReynolds, 33 111. 481. Even here, however, if the mortgage provides that on default in the payment ■ of one of the notes all shall at once become due, upon such default all are entitled to be paid ratably. Whitehead v. Morrill, 108 N. C. 65, 12 S. E. 894 ; Bushfleld v. Meyer, 10 Ohio St. 334 ; Pierce v. Shaw, 51 W'is. 316, 8 N. W. 209. But see Horn v. Bennett, 135 Ind. 158, 34 N. E. 321, 24 L. R. A. 800. 2Lovell V. Cragin, 136 U. S. 147, 10 Sup. Ct. 1024, 34 L. Ed. 372; East- man V. Foster, 8 Mete. (Mass.) 19; Perry's Appeal, 22 Pa. 43, 60 Am. Dee. 03 ; Penzel v. Brookraire, 51 Ark. 105, 10 S. W. 15. 14 Am. St. Rep. 23 ; Parker v. Mercer, How. (Miss.) 320, 38 Am. Dec. 438; Dixon v. Clayville! 44 Md. 573 ; Jennings v. Moore, 83 Mich. 231, 47 N. W. 127 21 Am St Rep 601. 3 2 Min. Insts. 3&3 ; McClintic v. Wise, 25 Grat. (Va.) 454, IS Am. Rep. 694 ; Griggsby v. Hair, 25 Ala. 327. * 2 Min. Insts. 373. (456) Oh. 23] MORTGAGES ASSIGNMENT OF MORTGAGED LAND. § 570 have been the intent. And so, although an assignment of the debt is an assignment of the mortgage, yet an assignment of the mort- gage, unless it seem intended as an assignment of the debt, as prima facie it is, does not operate to transfer or extinguish the debt.^ But while the general rule is that an assignment or release of the mortgage to the mortgagor operates an extinguishment of the mortgage, merging it in his general ownership of the property mortgaged, a court of equity may intervene to prevent such merger or extinguishment, if such a course be to the advantage of the mort- gagor and is not detrimental to the interests of creditors or other third parties, and is not repugnant to conscience.^ As to the form of the release, the doctrine at common law was that, wherever the obligation was under seal, the release must be by act as solemn, that is, under seal, in pursuance of the maxim, Eodem modo quo oritur eodem modo dissolvitur. If the promise were not under seal, it seems that it was only necessary to have a valuable consideration. But this doctrine is much shaken by the later American adjudications. However, it would be prudent to have the release always under seal.'' It must be observed, however, that if a mortgage or deed of trust has been duly registered, and thus made an incumbrance upon the land as against creditors and subsequent purchasers for value and without notice, there should likewise be entered upon the records the satisfaction and release of the. same, in order that the title may thus be made clear upon the records. § 570. Mortgagor's Assignment of Mortgaged Land. If the mortgagor assigns the mortgaged land to one without notice by registry or otherwise of the existence of the mortgage, such as- signee under the modern registry laws takes free from the mort- gage. If the assignee of the land takes it with notice of the mortgage, he takes subject thereto, and the land in his hands is liable for the mortgage debt, just as it would be had it remained in the hands of the mortgagor ; but the purchaser of the land is not personally bound to pay the debt, unless he has expressly or impliedly agreed to pay it, as where he expressly assumes the payment of the mortgage or he purchases at a reduced consideration because of 6 2 Min. lusts. 382, 383; JIartyn v. Mowlin, 2 Burr. 978; Row v. Dawson. 1 Ves. Sr. 331, 2 White & Tud. Lead. Cas. Eq. 2.38 ; laege v. Bossieux, m Grat. (Va.) 99, 76 Am. Dec. 189 ; McClintic v. Wise, 25 Grat (Va.) 448, 53G. 18 Am. Rep. 694 ; Allen v. Patrick, 97 Va. 521, 34 S. E. 451. eAllen v. Patrick, 97 Va. 521, 34 S. E. 451. 7 2 Min. Insts. 385 ; Bac. Abr. Release (A) 1 ; Blake's Case, 6 Co. 44a ; Fowell V. Forest, 2 Saund. 473, note (1) ; Rogers v. Payne, 2 Wils. 276. (457) § 570 MORTGAGES ASSIGNMENT OF MORTGAGED LAND. [Ch. 23 the mortgage.^ If the assignee does thus assume the payment of the mortgage debt, he thereby becomes the principal debtor, and the original mortgagor is only liable subsidiarily, as a surety." And while the mortgagee may continue to hold the mortgagor personally liable upon his contract to pay the debt, notwithstand- ing the assumption of the mortgage by the purchaser of the land,^" he may also, it seems, hold the purchaser directly responsible, though he is not a party to the agreement between the mortgagor and the purchaser — a right based sometimes upon the principle that one may sue upon a contract to which he is not a party if it be made for his benefit,^'^ and sometimes upon the theory of the subrogation of the mortgagee to the rights of the mortgagor (the surety) against the purchaser (the principal debtor) .^^ 8 Elliott V. Sackett, 108 U. S. 132, 2 Sup. Ct. 375, 27 L. Ed. 678 ; Litchfield V. Preston, 98 Va. 530, 37 S. E. 6 ; Osborne v. Cabell, 77 Va. 467; Strong V. Converse, 8 Allen (Mass.) 557, 85 Am. Dec. 732 ; Fiske v. Tolman, 124 Mass. 254, 26 Am. Eep.^659 ; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Campbell v. Smith, 71 N. T. 26, 27 Am. Rep. 5; Taylor v. Preston, 79 Pa. 436 ; Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494. 33 L. Ed. 667 ; Bowen v. Beck, 94 N. T. 86, 46 Am. Rep. 124; Pinley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252; Green v. Stone, 54 N. J. Eq. 387, 34 Atl. 1099. 55 Am. St. Rep. 577 ; Rice v. Sanders, 152 Mass. 108, 24 X. E. 1079, 8 L. R. A. 315, 23 Am. St. Rep. 804 ; Farmers' Nat. Bank v. Gates, 33 Or. 388, 54 Pac. 205, 72 Am. St. Rep. 724 ; Townsend v. "Ward, 27 Conn. 610 ; Held v. Vree- land, 30 N. J. Eq. 591 ; Thompson v. Thompson, 4 Ohio St. 333. 8 Union Mut. Life Ins. Co. v. Hanford, 143 U. -S. 187, 12 Sup. Ct. 437, 36 L. Ed. 118; Osborne v. Cabell, 77 Va. 467; George t. Andrews, 60 Md. 26, 45 Am. Rep. 706 ; Paine v. Jone's, 76 N. Y. 274 ; Calvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130; Nelson v. Brown, 140 Mo. 580, 41 S. W. 960, 02 Am. St. Rep. 755 ; Merriam v. Miles, 54 Neb. 566, 74 N. W. 861, 69 Am. St. Rep 731. 10 Nelson v. Brown, 140 Mo. 580, 41 S. W. 960, 62 Am. St. Rep. 755; Poe v. Dixon, 60 Ohio St. 124, 54 N. E. 86, 71 Am. St. Rep. 713 ; Merriam v. Miles, 54 Neb. 56G, 74 N. W. 861, 69 Am. St. Rep. 731 ; Flagg v. Geltmacher, 98 111. 293. 11 Gifford V. Corrigan, 117 N. Y. 257, 22 N. E. 756, 6 L. R. A. 610, 15 Am. St. Rep. 50S; Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. 327; Dean v. Walker, 107 111. 540, 47 Am. Rep. 467 ; Bay v. Williams, 112 111. 91, 54 Am. Rep. 209 ; Poe v. Dixon, 60 Ohio St. 133, 54 N. E. 86, 71 Am. St. Rep. 713 ; Enos Y. Sanger, 96 Wis. 150, 70 N. W. 1096, 37 L. R. A. 862, 65 Am. St. Rep'. 38; Merriman v. Moore, 90 Pa. 78; TJrquhart v. Brayton, 12 R. I. 169; Gilbert v. Sanderson, 56 Iowa, 349, 9 N. W. 293, 41 Am. Rep. 103. See 15 Harvard Law Rev. 808. 12 Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Osborne V. Cabell, 77 Va. 462 ; Crowell v. Hospital of St. Barnabas, 27 N. J. Eq 650 • Wager v. Link, 134 N. Y. 122, 31 N. E. 213 ; Miller v. Thompson, 34 Mich' 10; Hopkins v. Warner, 109 Cal. 136, 41 Pac. 868. See 15 Harvard Law Rev. 7G7, 787 ; 2 Tiffany, Real Prop. § 528. (458) Ch. 23] MORTGAGES ASSIGNMENT OF LAND IN PARCELS. § 572 When the assignee of the mortgaged land is not an absolute pur- chaser, but only a second mortgagee, who assumes the first mort- gage, his assumption of the mortgage debt is to be viewed dif- ferently; for, the land not being his own, it cannot be supposed that he intended to make the debt his own, nor to indemnify the mortgagor and save him from his indebtedness, but only that he intends to lend the amount of the first mortgage to the mortgagor. In such case the first mortgagee has no personal claim against the second mortgagee, as he would if he were a» absolute purchaser.^* § 571. Same — Mortgagor's Assignment of Part of the Land. If a mortgagor assigns to another part of the land mortgaged, re- taining the rest, it is equitable and just — at least, in case the deed of conveyance contains covenants upon which the purchaser could hold the mortgagor responsible for defective title — that the land retained by the mortgagor should first be subjected to the mort- gage debt, and that the alienee's portion be subjected only to the extent necessary to make good the deficit, and if under such circum- stances the alienee pay the mortgage debt he is entitled to contribu- tion or exoneration from the mortgagor to the extent of the value of the land retained by him.'^* But the alienee is not entitled to exoneration out of the land retained by the mortgagor, if the deed contains no covenants of title or warranty or quiet enjoyment, etc., since in such case the alienee has no claim against the mortgagor, in the absence of fraud or mistake; ^^ nor, a fortiori, where the alienee assumes the mortgage debt.^" § 572. Same — Successive Assignments of the Land in Parcels. If the mortgagor, having aliened one portion of the mortgaged land with the consequences just depicted, should assign other por- 13 Bassett v. Bradley, 48 Conn. 234 ; Garnsey v. Rogers, 47 N. X. 233, 7 Am. Rep. 440; Pardee v. Treat, 82 N. Y. 385. See Gaffney v. Hicks, 181 Mass. 124. 14 2 Min. Insts. 308; Aldrich v. Cooper, 2 White & Tud. Lead. Cas. Eq. 291 et seq. ; Clowes v. Dickenson, 5 Johns. Ch. (N. Y.) 235 ; Engle v. Haines, 5 N. J. Eq. 186, 43 Am. Dec. 624; Cuniming v. Gumming, 3 Ga. 460; Lock V. Fulford, 52 111. 166 ; Caruthers v. Hall, 10 Mich. 40. 15 3 Pomeroy, Eq. Jur. § 1225; Aldrich v. Cooper, 2 White & Tud. Lead. Cas. Eq. 296, 303 ; Aderholt v. Henry, 87 Ala. 415, 6 South. 625, 6 L. R. A. 451 ; Carpenter v. Koous, 20 Pa. 222 ; Steinmeyer v. Steinmeyer, 55 S. C. 9, 33 S. E. 15; Aiken v. Gale, 37 N. H. 501. 16 3 Pomeroy, Eq. Jur. §§ 1205, 1225; Litchfield v. Preston, 98 Va. 530, 37 S. E. 6 ; Carpenter v. Koons, 20 Pa. 222 ; Welch v. Beers, 8 Allen (Mass.) 151 ; Bo-wne T. Lynde, 91 N. Y. 92 ; Johnson v. Zink, 51 N. Y. 333 ; Burger V. Grief, 55 Md. 518; Engle v. Haines, 5 N. J. Eq. 186, 43 Am. Dee. 624; Thompson v. Bird, 57 N. J. Eq. 175, 40 Atl. 857; Drury v. Ilolden, 121 IJl. 130, 13 N. E. 547. (459) S 572 MORTGAGES — ASSIGNMENT OF LAND IN I'ARCELS. [Oh. 23 tions of the land retained by him, such later assignee stands in the shoes of his assignor (the mortgagor) so far as the rights of the first alienee are concerned, and takes the land conveyed to him cum onere, so that the first alienee has against him all the rights of contribution and exoneration that he would have had against the land retained by the mortgagor." But as against the mort- gagor this second alienee stands in the same position with refer- ence to so much of the mortgaged land as the mortgagor still re- tains as did the first alienee upon the conveyance to him. Hence it follows that, if the mortgagor thus makes successive assignments of the mortgaged land to different persons, the various tracts are to be subjected in the inverse order of their alienation, beginning with any part of the mortgaged land, if any, which is retained by the mortgagor, next that portion last assigned, and so on.^^ But this rule is dependent upon the right of the successive alienees to hold the mortgagor primarily responsible for the discharge of the lien. If the deed of conveyance contains no covenants, or there is an assumption of the mortgage by an alienee, no rights of con- tribution or exoneration arise against the mortgagor as to the land retained by him, and hence none will arise as against the subsequent alienees of such land.'^^ It is further to be observed, in connection with the subject of successive alienations of mortgaged land, that if the land be thus successively assigned in parcels, so that the equities of the owners of the respective parcels are unequal and the parcels are liable in the inverse order of alienation, and the mortgagee, having notice of these alienations, releases a parcel which is primarily respon- sible, he thereby discharges or releases those parcels which are sec- ondarily liable in the order of their several liabilities to an extent equal to the value of the parcel first released.^" And if the alienee of the latter parcel has assumed the payment of the whole lien, and he is thereafter released by the creditor, or with his consent, the property secondarily liable is thereby released altogether. -"■ But 17 2 Mm. Insts. 306 et seq. ; 2 Tiffany, Real Prop. § 530. 18 2 Min. Insts. 308. See Rodgers v. McCluer, 4 Grat (Va.) 81, 47 Am. Dec. 715; Jumel v. Jumel, 7 Paige (N. T.) 591; Irvine v. Perry, 119 Cal. 3.12. 51 Pac. 544 ; Union Nat. Banli of Osliliosli v. Moline, Milburn & Stoddard Co., 7 N. D. 201, 73 N. W. 527. 10 See authorities cited, ante, § 571. 20 Lynchburg Perpetual Building Ass'n v. Fellers, 96 \a. 337, 31 S. E. 505, 70 Am. St. Rep. 851. See 3 Pomeroy, Eq. Jur. § 1226; Howard Ins. Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478; George v. Wood, 9 Allen (Mass.) 80, :8 2 Min. Insts. 404 ; Fearne, Rem. 30, 33 ; 2 Th. Co. Lit. 143, note (P) ; 2 Rolle, Abr. 418. 8 9 2 Min. Insts. 405; 1 Th. Co. Lit. 743; Fearne, Rem. 35, 36. 1 2 Min. Insts. 405 ; Fearne, Rem. 30 ; 1 Tli. Co. Lit. 745 et seq. ; Wiscot's Case, 2 Co. 61a, note (G), Thomas' Ed. (503) § 625 REMAINDERS RULE IN SHELLEY'S CASE. [Ch. 25 jointly, but the rule applies, and A. and B. take several inheritances, and are tenants in common thereof.^ It may not be amiss to add, that in England, if A. and B. were a 'man and a woman who could intermarry legally, and the limita- tion were to the heirs of their bodies, they would take a joint in- heritance in tail.' § 626. Same — 5. Intervention of Remainder between Ancestor's Estate and Limitation to the Heirs. For example, upon a devise or grant to A. for life, remainder to Z. for life, if he should survive W., remainder to A. 's. heirs, the limitation to the heirs of A. unites with A.'s freehold only sub modo, opening, if necessary, to let in the intervening estate.* And so it is, also, if the intervening estate be vested, as in case of a limitation to A. for life, remainder to B. for life, remainder to A.'s heirs. ^ § 627. Same — 6. Remainder to Heirs Contingent upon Some Uncertain Event. If the remainder to the heirs, etc., is in form con- tingent upon some event, as in case of a limitation to A. for life, and, if A. survive B., remainder to A.'s heirs, etc., the rule operates, and A. takes an inheritance, but contingent upon his surviving B."' § 628. Same — 7. Subsequent Limitation to the Heir (in the Singular) without Words of Limitation Superadded. Thus, upon a grant or devise to A. for life, remainder to A.'s "heir," notwith- standing the word is in the singular number, yet without superadd- ed words of limitation such as existed in Archer's Case,' it is nomen collectivum (importing indefinite succession), so that the rule applies, and the ancestor takes an estate in fee simple.* In Archer's Case," the limitation was "to R. A. for life, and aft- erwards to the next heir male of R. A., and to the heir male of the body of such next heir male." These words of superadded limita- tion were held to prevent the application of ftie rule, and to vest in R. A.'s heir male a contingent remainder in tail male. 2 2 Min. Insts. 405 ; 2 Th. Co. Lit. 743 ; Fearne, Rem. 36 ; Stephens v. Britrklge, 1 Lev. 36. 3 2 Min. Insts. 405 ; Fearne, Rem. 36 ; 1 TIi. Co. Lit. 743. * 2 Min. Insts. 405 ; Fearne, Rem. 37 ; Lewis Bowles' Case, 11 Co. 80a. 6 Fearne, Rem. 29 ; Colson v. Colson, 2 Atk. 246. e Fearne, Rem. 34 ; 1 Preston, Est. 319, 333. 'Arclitrs' Case, 1 Co. 66b. 8 2 Min. Insts. 406 ; Fearne, Rem. 17S ; Archer's Case, 1 Co. 66b ; Burley's Case, 1 Vent. 230; White v. Collins, Com. 301; Richards v. Bergavenny, 2 Vera. 325, note (1) ; Dubber v. Trollope, 2 Amhl. 453, note (2) ; Blackburn V. Stables, 2 Ves. & B. 370, 371 ; Stokes v. Van Wyck, 83 Va. 731, 3 S. E. 387, »1 Co. 66b. (504) Ch. 25] REMAINDBES RULE IN SHBLLETl'S CASE. § 632 § 629. Same — 8. Limitation to Heirs, etc., in Indefinite Succes- sion, but with Inconsistent Words of Modification Superadded. If the intent appear to be that the persons who are to take the so- called remainder shall be the heirs, or heirs of the body, etc., of the first taker, in indefinite succession, the rule is applicable, notwith- standing words of modification are superadded which are incon- sistent with the estate of inheritance in the ancestor which the rule gives. Thus, in the leading case of Jesson v. Wright,^" the devise was in substance to William for life, and then to the heirs of his body, share and share alike, as tenants in common; and it was determined, after great consideration, by the House of Lords, that William took an estate tail, out of regard to the general intent. § 630. Same — 9. Where Ancestor Takes Freehold Estate by Im- plication. For example, in case of a devise to Z. for life after the death of A. (devisor's heir), remainder to W. for life, remainder to A.'s heirs, A. takes an estate for life by implication, for since Z. is not to have the land until after A.'s death, and A. is the heir of the devisor, there would be no one to whom it could go unless A. took it; and this estate for life by implication unites with the limitation to A.'s heirs as readily as if it had been granted in ex- press terms. ^^ So, where A. covenants to stand seised to the use of the heirs male of his body, he excepts by implication an estate for life, which, united with the estate limited to the heirs male of his body, gives him at common law an estate tail male.^^ § 631. Same — 10. Limitation to Heirs, etc.. Created by Different Instrument, but under Power of Appointment Contained in Same Instrument. For example, a limitation to the use of A. for life, and after his decease to such uses as Z. shall appoint, who afterwards, in A.'s lifetime, appoints the use to the heir of A. It being a well- understood principle that an appointee claims always under the instrument which created the power, it follows that the heirs of A. stand in the same position as if the instrument limiting the use to A. had afterwards itself made the limitation to his heirs. ^^ § 632. Same — 11. Application of Rule in Shelley's Case to Per- sonal Property. The rule in Shelley's Case, or more accurately an analogous rule, is applied to limitations of terms for years and of personal chattels nearly as in case of freeholds in lands. Thus, if 10 2 Bligh, p. C. 1. "Ante, § 184; 2 Min. Insts. 407; Fearne, Rem. 40 et seq. 12 2 Washburn, Real Prop. 2T0. 13 2 Min. Insts. 407; Fearne, Rem. 74; VenaWes v. Morris, 7 T. R. 342, 347. (505) § 632 EBMAINDEHS RULE IN SHELLBY's CASE. [Oh. 25 a term for one hundred years, or a personal chattel, be given to A. for life, and afterwards to A.'s heirs, these latter words are con- strued generally to be words of limitation, and the whole property vests in A. The only diversity seems to be that a less circum- stance is allowed, in case of personalty, to show the intention that the heirs, etc., should take as purchasers.'* The rule has also, been applied in limitations of estates pur auter vie. Thus, if an estate for three lives be given to M. for life, and the land afterwards to M.'s heirs, M. takes the whole prop- erty.^^ § 633. Same— 12. Application of Rule in Shelley's Case to Wills. There seems to be no essential difference in the application of the rule to wills and to deeds. The rule is not a medium for ascertaining the intent, but supposes the intent to be ascertained by the methods usually employed therefor. Wills being, for the most part, more complicated in their provisions, and less formal in their phraseology, a difficulty is more frequently experienced in deter- mining the intention in them than in the case of deeds; and this appears to be the only diversity between the two classes of assur- ance in this particular. Where the estate is so given that, after the limitation of a freehold to the ancestor, it is to go to every person who can claim as heir to the ancestor, the word "heirs" must be a word of limitation. That is, if the limitation to the heirs is so calculated and directed that the person claiming under it must entitle himself merely under the description of heir to the first taker, in the technical sense of the word, and if there is nothing to restrain the same words from equally extending to and com- prehending all other persons successively answering the same de- scription, or from entitling them alike under it, and eo nomine only, then, whether the limitation be contained in a deed or a will, the rule applies, and the ancestor takes an estate of inheritance. '■^ It is also to be observed that in wills words may be given the effect of words of limitation, and be construed as equivalent to the words "heirs" or "heirs of the body," which would not have such meanings if used in deeds. Indeed, in the latter form of conveyance, no words can take the place of "heirs" or "heirs of the body," so as to allow application of the rule in Shelley's Case. But in wills such words as "issue," "descendants," "offspring," 1*2 Min. Insts. 407, 408; Fearne, Rem. 492 et seq., note (a). 115 2 Min. Insts. 408; Fearne, Rem. 496. 16 2 Min. Insts. 408; Fearne, Rem. 186 et seq., 194 et seq., 199 et seq.; 2 Th. Co. Lit. 147, note (P) ; Jones v. Morgan, 1 Bro. Ch. 219 et seq. ; Roe v. Bedford, 4 M. & S. 364; Taylor v. Cleary, 29 Grat. (Va.) 44S, 4^2. (506) Ch. 25] BEMAINDEES TERMINATION OF PRECEDENT ESTATE. § 636 "seed," and sometimes even "children," when used to denote an indefinite succession, suffice for the operation of the rule.^^ § 634. Same — 13. Application of Rule to Trust Estates. The important distinction here is between trusts executory, wliere, as generally happens in marriage articles, the actual and complete drafting of the limitation is referred to a future conveyance or set- tlement which is directed to be afterwards made, and trusts ex- ecuted, where the limitation is finally drafted as it is to stand, and no such executory medium is contemplated. In executed trusts, the rule in Shelley's Case is applied with scarcely less uniformity than in legal estates; whilst in executory trusts, the court regards the end and consideration of the transaction, and will construe the projected limitation to the heirs to carry the inheritance to the an- cestor, or to give an estate by way of contingent remainder to the heirs, as will best subserve the Apparent intent.^' § 635. Effect upon Remainder of Subsequent Destruction or Termination of Particular Estate — 1. In Case of Vested Remainder. A vested remainder, once validly created, with a particular estate preceding it, is not affected by any subsequent destruction or ter- mination of the particular estate, except that such destruction or termination may in some instances accelerate the possession and enjoyment of the property by the remainderman.^" § 636. Same — 2. In Case of Contingent Remainder — A. At Common Law. The destruction or termination (not the mere transfer to another) of the particular estate before the remain- der is ready to vest in interest always at common law defeats the remainder, in pursuance of that characteristic feature, already adverted to, that a remainder must vest in right during the contin- uance of the particular estate, or eo instanti that it determines.^" A contingent remainder, therefore, may fail as to one part, and take effect as to another, wherever the particular estate is in sev- eral persons, as tenants in common or in severalty, or the remainder is limited to several, some of whom may come in esse before the'^ determination of the particular estate, and others not.^^ Thus, if lands be limited to A. and B. as tenants in common, or in separate portions, for their lives respectively, remainder to the 17 Ante, § 143. 18 2 Min. Insts. 408, 409; Fearne, Rem. 55, 90 et seq., 114 et seq., 136 et seq., 143 et seq. ; 1 Preston, Est. 382 et seq., 387 et seq. ; 2 Th. Co. Lit. 145, note (P). 19 Post, § 638; 2 Min. Insts. 391, 392; 2 Th. Co. Lit. 134; 1 Tiffany, Real Prop. § 128. 20Ante, § 594 ; 2 Min. Insts. 392, 423 ; 2 Bl. Com. 171. »i 2 Min. Insts. 423 ; 2 Th. Co. .Lit. 137, note (K). (507) § 636 REMAINDERS TERMINATION OF PRECEDENT ESTATE. [Oh. 25 heirs of Z., and A. dies in the lifetime of Z., the remainder at com- mon law will fail as to A.'s part of the land, whereas, supposing B. to survive Z., it will be good as to B.'s. And so if land be limited to A. for his life, remainder to the unborn children of Z., the re- mainder will be good as to so many of Z.'s children as are born in A.'s lifetime, and void as to those born afterwards. ^^ So, also, in case of a limitation by way of remainder to a class, such as children, the remainder fails at common law as to all members of the class who come into being or come within the description of the class after the termination of the particular es- tate. ^^ But even at common law, in case of a remainder to chil- dren, etc., a child en ventre sa mere at the termination of the par- ticular estate is regarded as in being and ascertained, so that the remainder to him, being vested,^ will not fail.^* And so, upon a grant to A. for life, remainder to B. if he survives C, the remain- der to B. fails at common law if A. die before C.^° It may be observed that these common-law principles as to the failure of a contingent remainder because of a gap or interval be- tween the particular estate and the remainder are founded on the rules governing the legal seisin, and never applied to equitable re- mainders; the seisin in such case being vested in the trustee and not in the particular tenant.^^ In order that these principles apply, it is immaterial whether the particular estate runs out its regular termination, or whether it be destroyed before its regular expiration by some supervening cause or act. In either event, if the particular estate ceases to ex- ist before the remainder vests in right, the remainder fails at com- mon law. Thus, where the particular tenant forfeits his estate by breach of an implied condition, as by tortious conveyance,^'' and the gran- tor enters for the breach, while the grantor is thereupon for some purposes seised under, and not paramount to, the particular ten- ant,^ ^ so that he cannot avoid the charges and incumbrances created by the latter as he might in the case of entry for breach of express condition, ^^ yet it seems the particular estate is by such entry de- 2 2 2 Min. Insts. 423. 23Ante, § 606; 1 Tiffany, Real Prop. § 123; 2 Jarman, "S^'i^s, 1027; Fest- Ing V. Allen, 12 M. & W. 279 ; Demill v. Reid, 71 Md. 175, 17 Atl. 1014. 24 2 Min. Insts. 393, 394; 1 Tiffany, Real Prop. § 123. 2 i5 Price V. Hall, L. R. 5 Eq. 399. 2 6 1 Tiffany, Real Prop. §123; 2 Jarman, Wills, 1027; Fearne, Rem. 303; Abbiss V. Burney, 17 Cli. Div, 211. 2 T Ante, §§ 196, 329, 466; 2 Min. Insts. Ill, 423. 2 8Ante, § 466; 2 Min. Insts. 56, 131, 267; 2 Th. Co. Lit. 117. 2oAnte. § 473. (508) Oh. 25] EEMAINDEES TERMINATION OF PRECEDENT ESTATE. § 637 feated (not merely transferred), although the grantor is not seised as of his original estate, but only of an estate of like duration as that of the particular estate which his entry determined.'" Hence such a forfeiture and consequent entry defeats a contingent, but does not affect a vested, remainder; the latter taking effect in possession. at the time originally proposed.''^ So, wherever the particular estate and the inheritance come together in the same hands, by act of the parties (except where the coalition occurs by the instrument which created the particu- lar estate and the remainder), the particular estate is merged, and ceases to exist, and the intermediate contingent remainders depending on such particular estate are, at common law, destroy- ed. Thus, if A. be tenant for life, remainder after the death of Z. to B. for life, remainder to W. in fee, and whilst B.'s remainder is in contingenc}^ A. buys W.'s remainder in fee, A.'s life estate is there- by merged, and B.'s contingent remainder is destroyed.'^ § 637. Same — B. Trustees to Preserve Contingent Remainders. The method formerly employed in England to prevent the destruc- tion of contingent remainders, by reason of the determination or destruction of the particular estate pending the contingency (which is said to have been invented by Sir Orlando Bridgeman and other eminent counsel during the time of the civil wars, A. D. 1643 to 1660), is by the intervention of an estate to trustees for the residue of the period of the particular tenant's estate, and until the remain- der is ready to vest in interest, to commence whenever his estate shall come to an end-. Thus, an estate is limited to A. for life, re- mainder, in case that estate should come to an end or be in any wise destroyed before the subsequent remainder is ready to vest in in- terest, to a trustee, Z., and his heirs, until the contingent remainder is ready to vest in interest, remainder to B.'s unborn son.^' But by act of Parliament (1845) ^* it is now provided in England that a contingent remainder shall not be liable to fail, or to be de- stroyed or barred, merely by reason of the destruction or merger of any preceding estate, before the vesting of the remainder or the de- termination of such preceding estate, by any other means than the natural effluxion of time, or some event on which it was in its crea- tion limited to determine.*" 30 2 Jlin. Insts. 42.3, 424; 2 Th. Co. Lit. 117. 31 2 Min. Insts. 424. 32 2 Min. Insts. 424; Fearne, Rem. 340; Purefoy v. Rogers. 2 Saund. 386. 33 2 Min. Insts. 423; 2 Bl. Com. 171, 172; Fearne, Rem. 326 et seq. ; 2 Th. Co. Lit. 137, note (K). 3*7 and 8 Vict. c. 76. 8 5 2 Min. Insts. 424, 425; Hill, Trustees, 490, 491. (509) § 637 EEMAINDEES TERMINATION OF PRECEDENT ESTATE. [Ch. 25 In most of the states of this country there exist statutes modeled on the English act of Parliament; but in the states in which there is no such legislation the device of trustees to preserve contingent remainders is still resorted to.^° § 638. Acceleration of Remainders. When a remainder is vest- ed in right, the enjoyment of the possession only being postponed to a future day, the premature happening of the event upon which the remainderman is to come into possession, such as the premature termination or the destruction of the particular estate, does not (as in the case of a contingent remainder at common law) destroy the remainder, but causes it, or rather the enjoyment of the possession of it, to be "accelerated." ^^ Thus, when land is granted or devised "to A. for life, remain- der to B. in fee," and A. cannot take because of some personal in- capacity to receive the title (as where A. is an alien enemy), B.'s remainder is accelerated; that is, his enjoyment of the possession begins at once, instead of awaiting the death of A.'^ So, where the particular tenant is the testator's widow, and she renounces the testamentary provision, electing to take the inter- est in her deceased husband's estate given her by law, the remain- der following upon her particular estate is accelerated. ^° And so, if the particular estate is destroyed by forfeiture for breach of implied condition or by merger, it would seem the same result would follow. So upon a devise to A. for life, remainder to C. for life, remain- der to X. in fee, if C. should die during the lifetime of A. and X., the remainder to X. is thereby accelerated, so as to take effect im- mediately upon A.'s death.*" And if the vested remainder is preceded by a contingent re- mainder which fails to take effect, as where land is granted or devised "to A. for life, remainder, if B. survive C, to B. for life, remainder to D. in fee," and B. dies before C, in such case D.'s remainder is accelerated.*^ 3 6 2 Washburn, Real Prop. (6th Ed.) § 1600. 3 7 1 Tiffany, Real Prop. § 128; 1 Jarman, Wills, 536. 38 1 Tiffany, Real Prop. § 128; Jull v. Jacobs, 3 Ch. Div. 712; Darcus v Crump, 6 B. Mon. (Ky.) 363; Key v. Weathersbee, 43 S. C. 414, 21 S. E. 324, 49 Am. St. Rep. 846. 3 8 1 Tiffany, Real Prop. § 128; Timberlake v. Parish, 5 Dana (Ky.) 345; Fox V. Rumery, 68 Me. 121 ; Adams v. Gillespie, 55 N. C. 244 ; Parker v. Ross, 69 N. H. 213, 45 Atl. 576 ; Milliken v. Welllver, 37 Ohio St. 460. 40 Jordan v. Richmond Home for Ladies, 106 Va. 710, 56 S. E. 730. 41 1 Tiffany, Real Prop. § 128; 1 Jarman, Wills, 536; Goodright v. Cornish, I Salk. 226. (510) Ch. 25] CEOSS-KEMAINDEES EXPRESS LIMITATION. § 640 It is to be observed that a contingent remainder, not having the capacity to take effect in possession until the happening of the con- tingency, even though the possession become vacant, is not sus- ceptible of acceleration,*^ but, on the contrary, is destroyed at com- mon law upon the failure or destruction of the particular estate before the remainder is ready to vest.*^ § 639. Alternative Remainders. We have seen that it is a gen- eral principle of the law, growing, indeed, out of the very nature of things, that there cannot be a remainder limited after a vested fee simple, for the fee simple is the whole estate, and that once dis- posed of there can be nothing left to give to another by way of re- mainder. It is just as impossible to have a remainder after a vest- ed fee simple as it is for the grantor to have a reversion after the grant of a fee simple.** But if the fee simple is given conditionally or contingently only, so that it is not vested, but dependent for vesting upon the hap- pening of a condition precedent, there is no reason why the gran- tor should not be permitted to make an alternative disposition of the fee simple, to vest only in case the first fails to vest. Such limitations are recognized as good contingent remainders at com- mon law, and are known as "alternative remainders," or sometimes as "remainders upon a contingency in a double aspect" or as "re- mainders upon a double contingency." *^ Thus, in Loddington v. Kime,** the limitation was to A. for life and if he have a son to that son in fee simple, and if he have no son then to B. in fee. It was held that both remainders were con- tingent until a son was born to A., when the remainder to A.'s son would vest, and B. be excluded and his remainder destroyed; while, if no son was born to A., B.'s remainder would vest upon A.'s death. § 640. Cross Remainders — 1. Expressly Limited. When land is given to two or more, either severally or as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them in case they should happen to survive, or in case the first taker should die without heirs of his body, etc., and so reciprocally ; 42 1 Tiffany, Real Prop. § 128 ; Augustus v. Seabolt, 3 Mete. (Ky.) 155 ; Purdy V. Hayt, 92 N. Y. 446; Dale v. Bartley, 58 Ind. 101. 43Ante, § 720. ^^Ante, § .50.5. 4 6 Ante, § 595; 2 Min. Insts. 395; 1 Tiffany, Real Prop. § 125; Pearne, Rem. 373 ; Loddington v. Kime, 1 Salk. 224 ; Allison v. Allison, 101 Va. 556, 44 S. E. 904, 63 L. R. A. 920 ; Prancks v. WMtaker, 116 N. C. 518, 21 S. E. 175; Demill v. Reld, 71 Md. 175, 17 Atl. 1014; Taylor v. Taylor, 63 Pa. 481, 3 Am. Rep. 565. 4 6 1 Salk. 224. (511) § 640 CROSS-EEMAINDERS EXPRESS LIMITATION. [Ch. 25 as if a man give lands to his two children for their lives, as tenants in common, and direct that, upon the failure of heirs of the body of one of them, his share shall go over to the other in fee, and vice versa. ^^ Such ulterior limitations are always contingent by reason of the ■uncertainty of the remainderman, and are styled cross remainders, because each of the grantees has reciprocally a remainder in the share of the other; and it is a rule respecting them that in a deed they can be given only by express limitation, and shall never be im- plied, though it is otherwise with respect to wills, which are ex- pounded more liberally, with a view to the presumable intent of the donor, for in these, cross remainders can be raised, not only by actual limitation, but by any expression from which the design to create them can be reasonably inferred. It is said that, even in a will, although cross remainders are favored as between two, yet among more than two the presumption is against them, subject still, however, to be controlled by a plain intention to the contrary.** Thus, if A., seised in fee, devises land to B., C, and D. for their lives, whether in severalty or as tenants in common, with remainder as they respectively die, and after their respective deaths to the sur- vivors or survivor, such remainders are cross remainders, and on the death of B. his land will remain to C. and D. as tenants in com- mon, and on the death of C. the whole will remain to D. for his life." And so, under the doctrine of entails, if the devise had been to B., C. and D., and the heirs of their bodies, as tenants in common, -with remainder, in case any of them should die without issue, to the survivors or survivor, B.'s land at his death without issue would remain to C. and D. as tenants in common m tail, and on the death of C. and failure of his issue the whole would remain to D. in tail.^" These, it will be observed, are instances of cross remainders ex- press, and in none of them would the next remainderman or rever- sioner be entitled to the land, until all the particular estates to B., C. and D., and the remainders also to those parties, were deter- mined.''^ § 641. Same — Shares of Survivors. If there be a limitation to A., B. and C. for their lives, with cross remainders between them, 47 2 Min. Insts. 500. 48 2 Min. Insts. 500; 1 Stephens, Com. 326; 1 Tli. Co. Lit. 774 et seq., note (I). See Howbert v. Cautliorn, 100 Va. 654, 42 S. B. 683. 48 2 Min. Insts. 1075. 60 2 Min. Insts. 1075. 012 Min. Insts. 1075; Chadock v. Cowley, Cro. (Jac.) 695; Broaddus T. Turner, 5 Rand. (Va.) 308. (512) Ch. 25] CROSS-REMAINDERS IMPLIED IN WILLS. § 642 upon A.'s death the right to his share undoubtedly passes to B. and C. But upon the subsequent death of B. some question may be raised whether C. becomes entitled by way of cross remainder to both the original and the accrued shares of B., or only to his original share. ^^ § 642. Same — 2. Cross Remainders Implied in Wills. In deeds, cross remainders do not arise without express limitation, or at least without words clearly expressing an intention to give them ; but in wills they may be freely created by implication, wherever it appears from the testator's language to have been his intention that the whole estate should go over to the ulterior remainderman, or, by way of reversion, to the heir at law all together, and that no part of it should pass or descend to him till the happening of the par- ticular event indicated, such as the failure of issue on the part of all the first takers. °^ Thus, where a man having two sons devised part of his lands to one of them and his heirs, and the remaining part to the other and his heirs, adding, "I will that the survivor of them shall be heir to the other, if either of them die without issue," it was held that they were tenants in common in tail, with cross remainders implied."** And so a devise "to my two daughters, E. and A., and their heirs, equally to be divided between them, and in case they happen to die without issue then I give and devise all the said lands to my neph- ew," creates estates tail in the two daughters with cross remain- ders.^^ The implication, however, must be a necessary one, or else the cross remainders do not arise. ^° It was at one time conceived that cross remainders could not be implied between more than two persons, in consequence, it was said, of the confusion which would arise from the division of the estate among many, as by reason of the uncertainty which might exist whether the surviving shares should vest in the parties as joint ten- ants, or as tenants in common, and for what estate, and also for the technical reason (merely feudal) to avoid the splitting of tenures, and consequently of services. ^'^ 62 See 2 Min. Insts. 500 ; 1 Tiffany, Real Prop. § 126. E3 2 Min. Insts. 1076; Cooper v. Jones, 3 B. & Aid. 425; Pery v. White, Cowp. 780, 781; Pliippard v. Mansfield, Cowp. 800. s*2 Min. Insts. 1076; Chadock v. Cowley, Cro. (Jac.) 695. 55 2 Min. Insts. 1076; 3 Lom. Dig. 371. 56 2 Min. Insts. 1076 ; Comber v. Hill, 2 Stra. 969 ; Davenport v. Oldis, 1 Atk. 579. 57 2 Min. Insts. 1076, 1077; Gilbert v. Wiltz, Cro. (Jac.) 655; Cook v. Garrard, 1 Saund. 185a, note (6) ; Pery t. Wlilte, Cowp. 780. MiNOB & W. Real Pbop.— 33 (513) § 642 CEOSS-EEMAINDERS IMPLIED IN WILLS. [Ch. 25' But this doctrine has been essentially modified for a century past, the true rule being, as was observed by lyord Mansfield in Pery v. White,^' that wherever cross remainders are to be raised by impli- cation between two, and no more, the presumption is in favor of cross remainders ; where they are to be raised between more than two, there the presumption is against cross remainders. But this presumption may be answered by circumstances of plain and mani- fest intention either way.^^ § 643. Same — Instances of Implied Cross Remainders. Thus, where land is devised to several persons (if more than two, the pre- sumption is against the cross remainder) for their respective lives, and after their deaths (or after the death of the last survivor of them) to other persons, the life tenants prima facie take cross re- mainders for life by implication, since the property is not to go over to the ultimate remaindermen, until the death of the last life ten- ant; an intention to bring all the property together being pre- sumed. ''' So, where lands are devised to several persons in tail, but, upon a failure of the issue of all of them, with a limitation over to another, cross remainders in tail are implied of necessity after the termina- tion of the respective estates tail in each by the failure of his issue."^ Thus, if there were a devise to A. and B. as tenants in common in tail, and if both should die without issue to Z. in fee, cross re- mainders in tail are mutually implied between A. and B., because it is plain that the testator did not design the ulterior remainder to Z. to take effect until the issue of both A. and B. failed; and, if there were no such implication, then on A.'s dying without issue, living B., his estate tail would have expired, and yet there would be no person provided by the will to take the property, and hence the tes- tator would be, as to that interest, intestate, when it is manifest that he did not design to be so.°^ But in those states in which es- tates tail have been abolished by converting them into estates in fee simple, this instance of cross remainders can no longer exist as such, because no remainder can be limited after a fee simple."^ Bs Cowp. 780. B!>2 Min. Insts. 1077; Pery v. White, Cowp. 780; Phippard v. Mansfield, Cowp. 800 ; Atherton v. Pye, 4 T. R. 713. 6 Ashley v. Ashley, 6 Sim. 358; Dow v. Doyle, 103 Mass. 489; Kerr v. Verner, 66 Pa. 326; Smith v. Usher, 108 Ga. 231, 33 S. E. 876; Glover v. Stillson, 56 Conn. 316, 15 Atl. 752. 012 Min. Insts. 1077; 2 Jarman, Wills, 1339 et seq. ; Doe v. Webb, 1 Taunt. 234; Allen v. Trustees of Ashley School Fund, 102 Mass. 262; Hall V. Priest, 6 Gray (Mass.) 18; Pierce v. Hakes, 23 Pa. 231. 82 2 Min. Insts. 1078; 2 Jarman, Wills, 5.56 et seq. «» 2 Min. Insts. 95, 454 et seq., 1077 ; ante, § 595. (514) Oh. 25] KEMAINDBRS — CONTINGENT MAT VEST WHEN. § 644 In case of a devise to several persons in tail (in England), assum- ing the intention to be clear that the estate is not to go over to the remainderman until all the devisees shall have died without issue, the effect of not implying cross remainders among the tenants in tail would be to produce a chasm in the limitations, inasmuch as some of the estates tail might be spent, while the ulterior devise could not take effect until the failure of all."* But in case of a devise in fee, as the primary gift includes the tes- tator's whole estate or interest, and that interest remains in the objects in every event, until, by the terms of the limitation, it is divested, a partial intestacy can never arise, for want of implying a limitation to the other co-devisees. On the contrary, to introduce cross limitations by implication amongst the co-devisees in such a case would be to divest a clear and unambiguous absolute gift, upon the mere conjecture that the testator designed it, when, if he has willed such a result, he has, at all events, not plainly signified it."^ Cross remainders are implied after an estate tail, in such case, as we have seen, in order to avoid an undesigned intestacy on the part of the testator. But if the devise be to A. and B. as tenants in com- mon in fee simple, but if both should die under thirty (or should die without issue, etc.) to Z. in fee, if A. dies under thirty (or without issue, etc.), there is no need, in order to effectuate the testator's purpose, to suppose that A.'s part was designed to devolve upon B., since it may descend to A.'s heirs until the event happens upon which it is to go over to Z. ; that is, the death of both A. and B. under thirty (or without issue, etc.). Hence there is no necessity to imply a cross limitation in such a case, and in the absence of such necessity it will not be implied."" § 644. Restrictions upon Period within Which a Contingent Remainder may Validly Vest in Right — Enumeration. An essen- tial principle of policy in all well-regulated states is that property should not be permitted to be so limited as to restrict its free aliena- tion and circulation through the various channels of trade and commerce. We have already seen instances of the application of this principle in the reasons leading to the establishment of the rule in Shelley's Case,"'' and in the condemnation of conditions im- posing unreasonable restraints upon the alienation of fee-simple es- tates."' But these precautions would in large measure be vain, if the owner of land might by deed or will create estates in futuro, de- 64 2 Min. Insts. 1077. s^Ante, § 620. 85 2 Min. Insts. 1077, 1078. esAnte, §§ 151, 516, et seq. 8« 2 Min. Insts. 1078 ; 2 Jarman, Wills, 556 et seq. (515) § 644 REMAINDERS — CONTINGENT MAY VEST WHEN. [Ch. 25 pendent upon some contingency, the happening of which might be postponed for generations, during all of which time the alien- ability of the land would be destroyed or greatly impaired, and the general usefulness of the property curtailed in proportion. Hence it is necessary that measures be adopted by the law to pre- vent the creation of contingent interests which by their terms are to vest in right at an unreasonably remote period in the future. It is to be especially observed that it is the remote vesting in right and not in possession that is to be objected to; for, if the re- mainder or limitation be vested in right, any uncertainty of title or right is removed, and the land becomes alienable with comparative freedom. A vested remainder is never void for remoteness, how- ever long the possession may be deferred; as in case of a grant to A. in fee tail, remainder to B. and his heirs, in which case, though the fee tail may not come to an end for generations, so that the en- joyment of the possession by B. or his heirs may be deferred in- definitely, yet B.'s remainder is a perfectly valid vested remainder."' But in the case of contingent remainders the law imposes sev- eral checks, more or less effective, upon the long deferred vesting of the estate, as follows : (1) The postponement of the vesting is limited by the duration of the particular estate; (2) contingent remainders to children, heirs or issue of unborn persons are not permitted; and (3) applicability to contingent remainders of the ordinary rule against perpetuities. § 645. Same — 1. Postponement of Vesting of Contingent Re- mainders Limited by the Duration of the Particular Estate. The ability to tie up lands by way of contingent remainder and keep them out of the channels of trade is checked in large measure by the requirement of the common law that such remainders must vest in right during the continuance of the particular estate, or at the very moment it determines, or else it is void; '" for, since the particular estates are usually estates for the lives of persons in be- ing, the remainder in such case must be so limited as to vest, if at all, within such lives in being or immediately upon their termina- tion.'^ But cases might arise in which the preceding particular estate is a fee tail, or a succession of limitations of life estates to persons, some of whom might not be in esse, so that this check, whereby 69 2 Mln. Insts. 456; Fearne, Rem. Butler's Note, c. 1; Gray, Perpet. § 111; Sonday's Case, 9 Co. 128a; "Webb v. Hearing, Cro. (Jac.) 415; Pells V. Brown. Cro. (Jac.) 590; Atty. Gen. v. Sutton, 1 P. Wms. 758, 766; Doe v. Ellis, 9 East, 382; Denn v. Puckey, 5 T. R. 303; See v. Craigen, 8 Leigh (Va.) 449. "Ante, § 594. ti See 2 Min. Insts. 414. (516) Ch. 25] EEMAINDEES — EULE AGAINST PEEPETUITIBS. § 647 contingent remainders might be kept within reasonable limits, was not always applicable, even at common law. § 646. Same — 2. Contingent Remainders to Children, Issue, Heirs, etc., of an Unborn Person are Void. Another check upon the tying up of land indefinitely by way of contingent remainder, much more effectual than that just mentioned, is provided by the common-law rule that no remainder is valid which is to the heirs, heirs of the body, issue, descendants, children or child, sons or son, etc., of an unborn person. Hence, in case of a limitation to a per- son in esse (A.) for life, and after his death to his unborn child for life, remainder to the eldest son (or heirs, issue, children, etc.) of such unborn child, the last remainder is void, even though A. has a child during the continuance of the particular estate, and though a son be born to that child before A.'s death.''' Thus, future limitations by way of contingent remainder are restricted to quite narrow limits in respect to inalienability, in no case by possibility exceeding a life or lives in being and some years over.'^ § 647. Same — 3. Applicability to Contingent Remainders of Ordinary Rule against Perpetuities. The difficulty, now under discussion, of preventing the tying up of future contingent estates has been also felt — more acutely, indeed^n the case of interests limited by way of executory limitation. To the latter class of limitations the courts have long applied a rule, known as the rule against perpetuities, presently to be discussed at length,''* namely, that no contingent executory limitation shall be valid, unless by its terms it must necessarily vest in right, if it vests at all, within life or lives in being and ten months (the period of gestation) and twen- ty-one years thereafter. 7 2 2 Min. lusts. 414; Fearne, Rem. 250, 502; 1 Th. Co. Lit. 128, note (F) ; Williams, Real Prop. 274, 469 ; Whitby v. Mitchell, 44 Ch. Div. 85 ; Cholmley's Case, 2 Co. 51b. This rule had Its origin in the more general principle (not now, however, regarded as of universal application, by any means, 2 Wash- burn, Real Prop. 254 ; Williams, Real Prop. 227, 253, note 2 ; Cole v. Sewell, 2 H. L. Cas. 186) that no contingent remainder shall be valid if limited upon a double possibility ; that is, upon two several contingencies, not independent and collateral, but the one requiring the previous existence of the other, and yet not necessarily arising out of it. This is called a possibility upon a pos- sibility, and according to the older authorities is never admitted. 2 Min. Insts. 413, 414 ; Fearne, Rem. 250 ; 1 Th. Co. Lit. 128, note (P) ; Cholmley's Case, 2 Co. 51b. Thus, while a remainder limited to the flrst-born son of B. (a living person), who has no son then born, is valid, it is void if limited to the flrst-born son of B.. named Thomas. 2 Min. Insts. 414. But this con- clusion is now denied. 2 Washburn, Real Prop. 254 ; Cole v. Sewell, 2 H. L. Cas. 186. 78 2 Min. Insts. 414. t* Post, § 694 et seq. (517) § 647 EEMAINDEES RULE AGAINST PEEPBTDITIBS. [Oh. 25 The question now to be discussed is whether this same rule is applicable to contingent future estates arising by way of contin- gent remainder as well as to those arising by way of executory limitation.''^ Mr. Williams contends that there are two different rules against perpetuities — one, just mentioned, for executory limitations, and the other, considered in the preceding section, for contingent re- mainders.^* Professor Gray, on the other hand, insists that there is but one rule, and that is the one admittedly applicable to execu- tory limitations." In England, Mr. Williams' view seems to have been recently sustained in Whitby v. Mitchell,''^ where it was held that a remain- der limited to the children of an unborn person was void, even though the settlement expressly added the words, "provided such children shall be born within life or lives now in being and twenty- one years thereafter." Upon the assumption that this proviso- would have made the estate valid, had it been an executory limita- tion,^' this decision seems to indicate that Mr. Williams' conten- tion is regarded as sound, and that in England the rule for contin- gent remainders declaring that a remainder to the child of an un- born person is void is considered an independent rule, and not merely one instance of the ordinary rule against perpetuities.^" § 648. Effect upon Remainder of Illegality of Contingency. The law will never adjudge a grant good by reason of a possibility or expectation of a thing which is against law, for that, says Lord Coke, is "potentia remotissima et vana, which, by intendment of law, nunquam venit in actum." Hence, a remainder to an unborn, or rather to an unbegotten, bastard, it is said, is void, for "the law does not favor such a generation." The legality of a contingency on which a remainder is limited becomes sometimes a question in "Sin the following discussion of this point, an article by Professor 0. A. Graves in 4 Va. Law Reg. 641 et seq., is extensively drawn upon and quoted. 7 s Williams, Real Prop. (17th Ed.) 469. 77 Gray, Perpet §§ 191 et seq., 201, 284, et seq. ; 1 Jarman, Wills, 521 et seq. See Barnum v. Barnum, 26 JId. 119, 90 Am. Dec. 103, note. 7 8 42 Ch. Div. 494, 44 Ch. Div. 85. 7 8 It might, perhaps, be questionable whether, even if this had been an executory limitation instead of a remainder, this proviso would be effectual to bring the case within the rule against perpetuities, without designating or ascertaining the persons or classes of persons during whose lives the limita- tion was to run. 80 The ordinary rule against perpetuities was applied In the following American cases: Lovering v. Levering, 129 Mass. 97; Hills v. Slmonds, 125 Mass. 536; Heald v. Heald, 56 Md. 300; Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L. B. A. 41 ; Walker v. Lewis, 90 Va. 582, 19 S. E. 258. (518) Ch. 25] REMAINDERS REPUGNANCY. § 649 connection with limitations over, by way of remainder, upon at- tempts to aliene, charge, or otherwise dispose of the subject, or in the event of insolvency or bankruptcy, being taken in execution, or in any way becoming liable to be vested in a stranger; and such limitations seem to be recognized as legal, notwithstanding they may operate to screen the subject from the debts of the own- er. So far as that result is concerned, however, it would appear that the property must not move from the party for whose benefit the stipulation is made, who cannot be permitted to hedge his ef- fects about with exemptions from liability for his own debts, how- ever a stranger may so contrive that what he gives to another shall be thus exempt from the debts of the donee. ^'■ § 649. Same — Contingency Repugnant to Some Rule of Law, Self-Contradictory, or Inconsistent with the Nature of the Particu- lar Estate. Those cases where the contingency upon which the subsequent limitation is intended to take effect is repugnant to some rule of law, or contrariant in itself, or inconsistent with the quality or nature of the particular estate, and where, consequently, the re- mainder is void, demand special attention. Thus a contingency upon which a remainder is limited must de- termine or avoid the whole, and not a part only, of the estate to which it is annexed ; and, therefore, a limitation whereby a preced- ing estate for life or in tail is interrupted for a certain period, to be again afterwards revived, with a remainder following, is not admis- sible, and the remainder is void. Suppose, for instance, that there is a grant to A. in tail, provided that, if A. make any attempt to aliene or discontinue the estate tail, the same shall absolutely cease during his life, as though A. were naturally dead, and thereupon the premises shall remain to B. for the residue of A.'s life, and after A.'s death shall remain and descend to the heirs of A.'s body, as if no interruption had occurred; the remainder limited to B. is void, be- cause it is limited upon a contingency repugnant to the rule of law above-mentioned, namely, that the whole, and not a part only, of an estate must be avoided by a proviso, or else the same is of no effect. The remainder is further void, because the proviso is repugnant to the nature and quality of an estate tail, in prohibiting the aliena- tion thereof, even by fine, etc.. And, again, the remainder is void, 812 Mln. Insts. 413; Feame, Rem. 249, note (A); Cholmley's Case, 2 Oo. olb ; 2 Th. Co. Lit. 128, note (F) ; Lockyer v. Savage, 2 Stra. 947 ; Kidney V. Coussmaker, 1 Ves. 436, Sumner's note; Ex parte Cooke, 8 Ves. 353, Sumner's note; Shee v. Hale, 13 Ves. 407, Sumner's note; Hlgglnbotham v. Holme, 19 Ves. 91. See Hutchinson v. Maxwell, 100 Va. 176, 177, 40 S. B. 655, 93 Am. St. Rep. 944, 57 L. R. A. 384; ante, § 504. (519) § 650 RBMAINDEES — ^DEROGATION OF PARTICULAR ESTATE. [Ch. 25 because the proviso is contrariant in itself, proposing to determine the estate tail as if tenant in tail were dead, whereas such an estate is not determined by the tenant's death, but by his death without issue. And, finally, the remainder is void, because the proviso upon which it is limited proposes to defeat the preceding estate, so that the remainder does not await the regular expiration of that estate.*^ § 650. Same — Limitation to Take Effect in Derogation or Sub- stitution of Particular Estate Not Valid as a Remainder. A re- mainder, by its definition, must await the regular expiration of the preceding estate, and cannot take effect in derogation thereof.*' In the preceding section an instance of such an estate was men- tioned. In case of a gift in tail to A., with condition not to aliene in fee by feoffment, remainder to B. in fee, the condition, prohibit- ing, as it does, not fine, etc., which are legitimate modes of aliening a fee tail, and cannot lawfully be restrained, but a conveyance which is wrongful, is a lawful and valid condition; yet the remainder limited thereupon is void, because it can only take effect in deroga- tion of the preceding estate, and also because, at common law, A.'s estate can only be determined by the re-entry of the grantor, etc., which, as we have seen, defeats the remainder, as well as the par- ticular estate.** Further to illustrate this proposition, suppose a grant to A. until Z. returns from abroad, and then remainder to W.'s unborn son, in fee. This is a valid remainder; but if the limitation had been to A. for life, and if Z. return from abroad, remainder immediately to W.'s unborn son in fee, the limitation would have been void as a remainder for the reason stated, though good as an executory, shift- ing or conditional limitation. *° But whilst no remainder can be valid which is limited to take effect in derogation of the particular estate, it must be observed that, if the contingency has no effect in abridging the particular estate, the remainder may be good; arid this consideration will sometimes control the construction (ut res valeat, etc.), so as, in a doubtful case, to justify the inference that the words of contingency were not intended to limit the estate of the particular tenant, but to mark the taking effect of the remainder. Thus, if land be grant- ed to A. for life, and if Z. marry W. then remainder to B., the 82 2 Min. Insts. 414, 415; Fearne, Rem. 252 et seq. ; Corbet's Case, 1 Co. 84a, note (T), 85a ; Mildmay's Case, 6 Co. 40b, 41a. See post, § 650. 8 3 Ante, §§ 590, 592. 84 2 Min. Insts. 415. 85 2 Min. Insts. 415, 416; Fearne, Rem. 261 et seq. ; 2 Th. Co. Lit 28, 128, note (F) ; Colthirst v. Bejushin, 1 Plowd. 24, 24a. (520) Ch. 25] REMAINDERS DISPOSITION OF INHERITANCE. § 651 contingency shall not be understood as shortening A.'s life estate (for that would avoid the remainder), but as constituting the event upon which B.'s remainder is to vest in interest, awaiting, however, the expiration of A.'s life estate before it comes into possession.*' § 651. Disposition of the Inheritance Pending the Contingency. Where a remainder of inheritance is limited in contingency by way of use, or devise (or perhaps grant), the inheritance pending the contingency, if not otherwise disposed of, remains in the grantor or his heirs, or in the devisor's heirs, until the contingency happens to take it out of them. Thus upon a devise to A. for life, remainder to Z.'s heirs, the fee descends upon and remains in the devisor's heirs until by Z.'s death his heirs are developed and ascertained, and then it devolves on them.^^ Where the limitation of the contingent inheritance is contained, not in a conveyance by way of use, or devise, or grant, but in a conveyance operating at common law, a less uniform doctrine pre- vails as to the disposition of the inheritance, pending the contin- gency. Some have held that, in case of a lease to A. for life, re- mainder to the heirs of B. (B. being living), no estate at all remains in the grantor, and that he cannot enter for the forfeiture, in case of a feoffment in fee by the tenant for life; whilst others, though disinclined to admit that any estate remains in the grantor in such case, still allow him a right of entry for any forfeiture incurred by tenant for life, as well as on the determination of his estate by death before the contingency happens. These opinions are founded on an assumption that the remainder must pass out of the grantor at the time of the livery, and consequently that no estate shall remain in him after such livery; and, therefore, in the case supposed (of a lease to A. for life, remainder to the heirs of B.), they say the re- mainder is in abeyance, or in nubibus, or in gremio legis, though by way of compromise between common sense and the supposition of the inheritance passing out of a man, where there is no person in rerum natura, no object, as Mr. Fearne says, besides hard, and hardly intelligible, words for the reception of it at the time of the livery, they are compelled to admit such a species of interest to remain in the grantor as entitles him to enter and reassume the estate, in the event that the particular estate determines before the contingent remainder can take effect.*' 88 2 Min. Insts. 416; Fearne, Rem. 262, 363; Colthirst v. Bejushln, 1 Plowd. 23 et seq. 87 2 Min. Insts. 417; Fearne, Rem. 351 et seq.; Clere's Case, 6 Co, 17b; Leonard Lovie's Case, 10 Co. 78, 85b; Purefoy v. Rogers, 2 Saund. 380. 88 2 Min. Insts. 417. (521) § 651 REMAINDERS DISPOSITION OF INHERITANCE, [Ch. 25 But, if the inheritance passes at all, it seems to be a necessary conclusion that it passes to somebody; whilst, if it does not pass to anybody, one might reasonably suppose that it does not pass at all. However profound a solution of this difficulty, as Mr. Fearne observes, may be discoverable by legal adepts, in the expressions "in abeyance," "in nubibus," or "in gremio legis," it really seems a more arduous undertaking to account for the operation of a feoff- ment, in annihilating the inheritance, or transferring it to the clouds, and afterwards regenerating or recalling it at the beck of some con- tingent event, than to reconcile to the principles, as well of common law as of common sense, a suspension of the complete operation of such feoffment, in regard to the inheritance, until the intended chan- nel for its reception comes into existence. The inheritance was in the grantor or testator at the time of making the limitation, and_ it is confessedly not included in it. The natural conclusion seems to be that it remains where it was, namely, in the grantor, or in the testator's heirs. When the future disposition takes effect, then the interest passes pursuant to the terms of the limitation ; but if such future disposition fails of effect, either by reason of the determina- tion of the particular estate, failure of the contingency, or other- wise, what is there then to draw the inheritance out of the grantor or his heirs, or the heirs of the testator? '' § 652. EfTect of Interpolation of Contingent Remainder be- tween Particular Estate and Ulterior Remainder — 1. Intervening Remainder Not a Fee Simple. Where the intervening contingent remainder is less than a fee simple, the remainder limited after- wards may be either a vested or a contingent remainder according to the terms of the limitation. There is no necessity, in the nature of things, that it should be contingent."" So there may be a succession of contingent remainders, one of which, though later in order, may become vested while the prior ones remain contingent. Thus, if an estate be limited "to A. for life, remainder to A.'s first and other sons (not in being) in tail, remainder to B. for life, remainder to B.'s first and other sons (not in being) in tail, the remainders to the sons of A. and B., respective- ly, are contingent, because the remaindermen are not in being, yet the remainder to B. is vested, though following a contingent re- mainder in tail to the sons of A., and if a son should be born to B. his remainder would also, at once, become vested, though the first remainder in tail to A.'s son still unborn, remains contingent.*^ 89 2 Min. Insts. 418; Fearne, Rem. 360 et seq. ; 2 Bl. Com. 107, note (8). 90 2 Min. Insts. 418, Fearne, Rem. 223 et seq. siUvedall t. Uvedall, 2 Rolle, Abr. 119. (522) Ci. 25] EEMAINDEES — INTERPOLATION. § 653 In Napper v. Sanders,'^ the feoflfer made a feoffment "to her own use for life, remainder to use of feoffees for eighty years, if N. S. and E. S. his wife so long live, and if E. S. survives N. S., her husband, then to her for life, and after.her death to B. S. in tail, and upon default of issue to E. N., D. S., and F. S. and the heirs of their bodies, remainder to the heirs of the feoffor." This limitation is very instructive. If it be analyzed, with refer- ence to the exception to the second class of contingent remain- ders,^= and to the second exception to the third class of contingent remainders,"* it will be found to present the following succession of estates : (1) A life estate in the feoffor ; (2) a vested remainder' to feoffees for the joint lives of E. S. and N. S. ; (3) a contingent remainder to E. S. for her life (contingent upon her surviving N. S., her husband) ; (4) an estate tail in B. S. by way of vested re- mainder after the death of E. S. (not being in any way dependent upon E. S. surviving her husband) ; (5) a joint estate tail, by way of vested remainder, in E. N., D. S., and F. S., after the termina- tion of the estate tail in B. S. ; and (6) the so-called remainder to the heirs of the feoffor is not a remainder, nor a case for the opera- tion of the rule in Shelley's Case, but is a mere reservation of the reversion in the feoffor, which the law itself would have reserved in her, had she said nothing about it. It operates nothing."' § 653. Same — 2. Intervening Remainder a Fee Simple. Where there is a contingent limitation in fee simple absolute, no estate limited afterwards can be vested. Thus, a devise to A. for life, remainder to his issue male and his heirs for ever, and if he die without issue male, remainder to B. in fee, creates in B. a contin- gent remainder, because the preceding limitation to the issue of A. was contingent and in fee. In such case B. takes an alternative remainder (or a remainder upon a double contingency, or upon a contingency in a double aspect, by all of which names it is desig- nated). "° In Allison v. Allison,"^ the limitation was "to my daugh- ter for life, and at her death to be equally divided among her chil- dren, should any survive her ; if she should die without issue, or if her surviving child or children should die before becoming of age, then the property bequeathed for the benefit of my daughter is to be divided among my heirs at law according to the laws of the state of Virginia." It was held that the remainder to the children was 82 Hutt, IIT. 03Ante, § 603. »4Ante, § 607. OB See 2 Washburn, Real Prop. 244. ssAnte, §§ 595, 639; 2 Min. Insts. 418; Fearne, Rem. 225, 229; 2 Wash- burn, Real Prop. 534, 535. 8 7 Allison V. Allison, 101 Va. 555, 44 S. E. 904, 63 L. R. A. 920. (523) § 653 KBMAIN0EES INTBEPOLATION. [Ch. 25 a contingent remainder in fee, and, that being so, the subsequent limitation to the testator's heirs at law was also contingent, though the heirs meant were such as existed at the testator's death, and were, therefore, ascertained persons. It is to be observed, also, that, while the court speaks of this last limitation as a "remainder," it is not strictly so in fact, but is a quasi reversion or possibility of reverter in the testator's heirs, being an instance of the second ex- ception to the third class of contingent remainders. °^ In that case, the distinction was immaterial. Upon this principle, it has been sometimes insisted that if a limitation be made to A. for life, with power to appoint in fee sim- ple, and in default of appointment to B. in fee, the existence of the power to appoint in fee suspends the effect of the subsequent limi- tation to B., and keeps it contingent until the exercise of the power becomes impossible."^ But the better opinion is believed to be that any such subsequent remainder, which would not be otherwise contingent, is not made so by the intervention of the power of ap- pointment, but is vested, subject, however, to be divested by a sub- sequent execution of the power. Thus, where by marriage settle- ment lands were limited to the wife, as separate estate, for her life, remainder to the husband for life, and then to such of the chil- dren of the marriage for such estates and in such parts and propor- tions as the husband and wife should appoint, and, in default of appointment, remainder to the children of the marriage, as tenants in common in fee simple, it was held that, notwithstanding the power of appointment in the father and mother, the remainder to the children was vested, being liable, however, to be divested if an appointment should be made.^ The same doctrine applies also to personalty; and where money is absolutely given over in default of appointment, the gift over is vested, subject to be divested by the execution of the power.^ ssAnte, § 607. s>9 2 Min. Insts. 419; Leonard Lovies' Case, 10 Co. 85a; Walpole v. Lord Conway, 3 Barnad. Oh. 153; Smith v. Lord Camelford, 2 Ves. Jr. 704. 1 2 Mm. Insts. 419 ; Doe v. Martin, 4 T. R. 39. See Fearne, Rem. 229 ; 2 Sugden, Powers (3d Am. Ed.) 2rA ; Idle v. Cooke, 2 Ld. Raym. 1150 ; Madoc V. Jackson, 2 Bro. Ch. 588 ; Vanderzee v. Aclom, 4 Ves. 787 ; Reade v. Reade, 5 Ve- 748 ; Maundrell v. Maundrell, 10 Ves. 265 ; Cliolmondeley v. Clinton, 2 Jac. & Walker, 40; Osbrey v. Bury, 1 Ball & Beat. 53, 57; Campbell v. Sandys, 1 Sch. & Lefr. 293. 2 2 Min. Insts. 419 ; 2 Sugden, Powers (3d Am. Ed.) 5 ; Gordon v. Levi, 1 Ambl. 364; Coleman v. Seymour, 1 Ves. Sr. 209; Ld. Teynham v. Webb, 2 Ves. Sr. 208 ; Cholmondeley t. Meyrick, 1 Eden, 77 ; Earl Salisbury v. Lambe. 1 Eden, 465 ; Rooke t. Rooke, 2 Eden, 8 ; Reade v. Reade, 5 Ves. 748, (524) Ch. 25] REMAINDERS CONTINGENT PRECEDENT ESTATE. § 654 § 654. Effect upon Ulterior Limitations of Contingency Annex- ed to Preceding Estate — 1. Preceding Estate Subject to Condition Precedent That Never Happens. If the preceding estate is itself a contingent remainder that never vests because of the nonoccur- rence of the condition precedent upon which it is dependent, the general rule of construction is that this does not invalidate the ul- terior limitations. The nonoccurrence of the contingency merely affects the preceding estate to which it is at first annexed, without extending to the ulterior limitations.^ Thus, there was a devise to Z. (testator's son) for life, re- mainder to Z.'s first and other sons by any future wife in tail, with a proviso that, if Z. should afterwards intermarry with anj^- body akin to M. A., Z.'s then wife, the foregoing limitations to the issue of such future marriage should cease and determine, and the efetate should pass to the testator's nephews. After the testa- tor's decease M. A. died, and then Z. died, without issue, and with- out having married again. The contingency of the son's marrying again, in the manner prescribed, was held to affect only the estates limited to his future issue, and the limitation to the nephews was sustained.* Again, a testator, who had three sisters, for whom he wished to provide, one of whom, however, was married, and during her husband's life would need, as he thought, no assistance, devised lands to trustees in fee, in trust to receive the rents and profits, and pay the same to his sisters E. and M., until the decease of the husband of his sister S., and, in case S. should then be living, to pay the same thenceforward to the three sisters severally, in thirds, for their lives, with remainder, severally, to their first and other sons in tail, remainder over. The married sister, S., died in her husband's lifetime, without issue, and afterwards the other sisters died without issue. It was held that the contingency of S.'s surviving her husband related only to her own life interest in the rents and profits of the lands, and that the subsequent limita- tions were not affected thereby, and consequently took effect." The construction, in these cases, appears to depend on the testa- tor's apparent intention not to extend the contingency beyond the estate to which it is annexed. If he seems to have contemplated no distinction, the contingency will equally affect the whole chain of ulterior limitations. Thus, in case of a devise to W. H., the 3 2 Min. lusts. 419, 420 ; Fearne, Rem. 234 et seq. 4 Bradford v. Foley, 1 Dougl. 63 ; 2 Min. Insts. 419, 420. 6 2 Min. Insts. 420 ; Fearne, Rem. 234 et seq. ; Horton v. Whltaker, 1 T. R. 346 ; Napper r. Sanders, Hutt. Il9. (525) § 655 REMAINDERS CONTINGENT PRECEDENT ESTATE. [Oh. 25 testator's son, in tail, and if testator's wife should survive W. H., and he die without issue, remainder to her for life, remainder to M. S. for life, and after her decease (the said W. H. being dead without issue as aforesaid), remainder over, the testator's wife having died before W. H., it was held that the intent was to make, not the wife's life estate alone, but the whole train of subsequent limitations, dependent on the contingency of the wife's surviving W. H. (as was shown especially by his renewing the mention of it in connection with the last), and that, the contingency having fail- ed, the subsequent limitations never took efifect.' § 655. Same — 2. Limitation Dependent upon Contingent Termi- nation of a Preceding Contingent Estate That Never Takes Ef- fect. Here the ulterior limitation upon its face appears to be de- pendent upon two contingencies — (a) that the preceding estate should vest and take effect; and (b) that such preceding estate should determine in a particular manner. The failure of the pre- ceding estate to vest at once eliminates the possibility of the occur- rence of either contingency. Yet the general rule of construction in this case, as in the preceding, is that while, if the preceding es- tate does vest or take effect, its termination in the manner pre- scribed is a condition precedent to the vesting of the ulterior lim- itation, it is not the intention to make that a condition precedent under all circumstances, and, if the preceding estate never vests at all, the subsequent limitations are usually allowed to take effect any way ; it being presumed that it is not the existence of the pre- ceding estate, but its termination in the prescribed manner in case it does come into existence, that is the condition precedent to the subsequent limitation.' Thus, in case of a devise to trustees for eleven years, remainder to the first and other son (not in being) of B., in tail, provided they should take the testator's surname, and if they would not, or should die without issue, remainder to the first son of C, remainder over, B. died without having had any son, and C. had a son at the time of the devise. It was admitted that the limitation to B.'s sons was good only as an executory devise, the preceding estate not be- ing an estate of freehold, and it was held that the limitation to the son of C. was valid and effectual.' § 656. Same — 3. Limitation Contingent upon Termination of Preceding Estate in a Designated Manner, Where the Estate is e 2 Min. Insts. 420 ; Fearne, Rem. 236 ; Davis v. Norton, 2 P. Wins. 393 ; Doe V. Shepard, 1 Dougl. 75. 7 2 Min. Insts. 421 ; Fearne, Rem. 237. 8 2 Min. Insts. 421 ; Scatterwood v. Edge, 1 Sallt. 229 ; Doe v. Scott, 3 M. & S. 305. (526) Ch. 25] REMAINDERS — TRANSFER. § 658 Vested and Terminates Otherwise. In general, where the preced- ing estate takes place, and the condition is not performed, the re- mainder will not take effect at the expiration of such preceding es- tate, save where the apparent general intention calls for it. Thus, in case of a devise to the testator's wife for life, upon this express condition, only, that if she should marry again the property should go forthwith to his eldest son in tail, remainder over, and the wife died without marrying again, Lord Hardwicke, chiefly upon the emphatic language used in stating the contingency, held that the limitation in tail to the son was not vested, but contingent upon the wife's marrying again, which she did not do." § 657. Transfer of Remainders — 1. Transfer of Vested Remain- ders. A vested remainder is susceptible of transfer, by the common law, to the same extent as an estate in possession, either by con- veyance inter vivos, by devise or by descent.^" But as to the conveyance inter vivos of a vested remainder of freehold, at least if preceded by a freehold, such remainders always lay in grant and not in livery ; that is, they passed, even at common law, by deed, and not by livery of seisin, since it was impossible for the remainderman to deliver the seisin, because the seisin would be in the particular tenant and not in the remainderman.^^ § 658. Same — 2. Transfer of Contingent Remainders. A con- tingent remainder of inheritance is transmissible by descent to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens, supposing the continued exist- ence of the remainderman not to enter into and make part of the contingency itself, upon which the remainder is intended to take ef- fect. And wherever a contingent remainder is descendible, it is, independently of any statute, devisable by will.^^ 9 2 Min. Insts. 421 ; Fearne, Rem. 238 et seq. ; Sheffield v. Orrery, 3 Atk. 282 ; Luxf ord v. Cheeke, 3 Lev. 125. But if the language used in the limita- tion in Sheffield v. Orrery had been less emphatic, it is probable the limita- tion would have been construed as If it had read to the testator's wife for life, and upon her remarriage or death to his eldest son in tail, etc., in which case the son's remainder would have been vested. See 1 Jarman, Wills, 759 ; Luxf ord v. Cheeke, 3 Lev. 125 ; Ferson v. Dodge, 23 Pick. (Mass.) 287 ; Aulick V. Wallace, 12 Bush (Ky.) 531; Green v. Hewitt, 97 111. 113, 37 Am. Rep. 102. 10 2 Mln. Insts. 422; Waring v. Waring, 96 Va. 641, 82 S. E. 150; Gard- nier v. Guild, 106 Mass. 25 ; Wimple v. Fonda, 2 Johns. (N. T.) 288 ; Chew v. Keller, 100 Mo. 362, 13 S. W. 395 ; Hinkson v. Lees, 181 Pa. 225, 37 Atl. 338 ; Glidden v. Blodgett, 38 N. H. 74 ; Davis v. Bawcum, 10 Heisk. (Tenn.) 406. 112 Min. Insts. 422; Wilson v. Langhorne, 102 Va. 637, 47 S. E. 871. 12 2 Min. Insts. 421 ; Fearne, Rem. 364 ; Wilson v. Langhorne, 102 Va. 638, 47 S. E. 871. (527) § 658 REMAINDERS TRANSFER. [Ch. 25 As to conveyances inter vivos, while vested remainders lying in grant as they do pass by deed without livery, a contingent re- mainder is a mere right or possibility and, except in equity, cannot at common law be transferred before the contingency, otherwise than by estoppel, as by matter of record, or of deed indented, though it may be released to him in possession (the release in such case operating by way of extinguishment).'^^ § 659. Liability of Remainders for Debts of Remaindermen. It is a general principle of morals as well as of law that any property which the owner may sell or mortgage, and which therefore adds to his general credit in his community, ought also to be, as it usual- ly is, subject to his debts, and liable to be sold therefor at the in- stance of his creditors. This principle, generally speaking, is applicable to remainders as well as to other property, and so far as vested remainders are concerned they are fully liable for the owner's debts and may be subjected thereto just as the like property in possession would be.^* But if the remainder be contingent by reason of the uncertainty of the remainderman, as it is inalienable, '° so for the same reasons it cannot be subjected by creditors under attachment, judgment, or otherwise. But if the remainderman is ascertained, and his es- tate is alienable otherwise than by estoppel (in some states such remainders are alienable by statute), it would seem unjust to with- draw it from reach of creditors, and the weight of authority seems to be in favor of subjecting it.'" 13 2 Min. Insts. 422; Fearne, Rem. 365; 1 TifCany, Real Prop. § 129; Miller v. Emans, 19 N. Y. 385. See post, § 977. 1* Blanchard v. Brooks, 12 Pick. (Mass.) 47; Drake v. Brown, 68 Pa. 223 ; Jackson v. Sublett, 10 B. Mon. (Ky.) 467 ; Ellwood v. Plummer, 78 N. C. 392. 16 Ante, § 658. 16 Drake v. Brown, 68 Pa. 223 ; Jacob v. Howard, 22 S. W. 332, 15 Ky. Law Rep. 133 ; White v. McPbeeters, 75 Mo. 286. (528) CHAPTER XXVI. REVERSIONS. § 6G0. Nature of a Reversion. 661. Incidents of a Reversion. CG2. Reversions Distinguislaed. from Remainders. 663. Difference in Mode of Descent. 664. Difference in Respect of Liability for Grantor's Debts. 665. Merger of Particular Estate — Nature of Merger 666. Two or More Estates (Not Mere Rights) in Same Land must Meet in Same Person. 667. Reversionary Estate must be at Least as Large as Particular Estate. 668. The Rights in Which the Several Estates are to be Held. 669. Doctrine W.here the Several Estates are Limited by the Same In- strument. 670. Effect of Intention in Preventing Merger. 671. Effect of Concurrence of Legal and Equitable Estates ' in Same Person. 672. Quasi Reversions or Possibilities of Reverter. § 660. Nature of a Reversion. A reversion is the remnant of an estate continuing in the grantor, undisposed of, after the grant of a part of his interest. It dififers from a remainder in that it arises by- act of the law, whereas a remainder is by act of the parties. A rever- sion, moreover, is the remnant left in the grantor, whilst a remainder is the remnant of the whole estate disposed of, after a preceding part of the same has been given away. It is called a reversion from the returning of the land to the possession of the grantor or his heirs, after the estate granted is ended. "A reversion (reversio) cometh," says Lord Coke, "of the Latin word revertor, and signifieth a re- turning again ; and therefore reversio terrse tanquam terra revertens in possessione donatori, sive hseredibus suis post donum finitum." ^ From the nature of a reversion it is obvious, as has been said, that it is not created, but arises by construction of law, and that it supposes that the grantor has not parted with his whole estate. Hence, upon the grant of a fee simple, 'whether absolute or quali- fied, there can be no reversion, for the fee simple is always the whole; but wherever one assigns his whole estate, whether that be in fee, or in life or years, there being no remnant left in him, nor the possession returning to him, there is in like manner no rever- sion. A distinction is made, however, between a reversion, which is an estate vested in praesenti, although to be enjoyed in futuro, and 11 Th. Co. Lit. 138; 2 Min. Insts. 425; 2 Bl. Com. 175. Minor & W.Reai, Prop.— 34 (^29') § 660 EEVBESIONS — NATUEF,. [Ch. 26 capable of being transmitted by descent, devise, or grant, and a mere possibility of reverter, such as before the statute de donis condition- alibus existed in the case of conditional fees, and now exists in all cases where the fee is limited in contingency, as in base or qualified fees, and in grants to a perpetual corporation during its existence, or to A. for life, remainder to B.'s unborn son in fee.^ The basis of this distinction lies in the fact that reversions are always vested estates, corresponding to vested remainders, while the mere possibility of reverter is always contingent and corres- ponds to a contingent limitation. A section at the close of this chapter will be devoted to a brief consideration of the latter. Wherever one possessed of lands grants a smaller estate than his own, he has a reversion; that is, as soon as his grantee's estate is complete and ended, the possession will revert or return to him. A lessor seised in fee leases for years ; the lessee's estate does not begin until he enters, and until then, therefore, the lessor has not the reversion.^ One cannot be said to be seised of a reversion after a freehold estate, but entitled to it by a vested right, which the law is as careful to protect as it is to guard those of the tenant in possession ; and we have seen that, at common law, if a particular tenant aliened by a tortious conveyance a greater estate than he had, he thereby divest- ed the reversion, and converted the reversioner's right of entry into a right of action, whereby a forfeiture of the particular estate was incurred, and the reversioner was admitted to enter immediately for the forfeiture. § 661. Incidents of a Reversion. The incidents of a reversion at common law are fealty and rent. Fealty is merely the outward token and recognition of the rela- tion of landlord and tenant; and although the outward expression has fallen into disuse with us, the relation, of course, may subsist, and, indeed, even in England, the relation is understood to be re- ferred to, rather than the ceremony, when the word is used there. In this sense, as the mere recognition of the fact of the relation of landlord and tenant, it is manifest that fealty is an inseparable con- comitant of the reversion, ex vi termini.* Rent is an usual, but not, like fealty, an inseparable, incident to the reversion. If no rent were originally reserved upon the creation of the particular estate, of course none belongs to the reversion ; and even though rent were reserved, yet the reversion may be granted excepting the rent, or the rent excepting the reversion. A grant 2 2 Mm. Insts. 425, 426 ; 2 Bl. Com. 175. i 2 Min. Insts. 427. 8 2 Min. Insts. 426. (530) Ch. 2Q] EEVBRSIONS DISTINGUISHED FROM EBMAINDERS, § 664 of the reversion, however, if there be nothing to the contrary in the grant, carries the rent with it, as an incident thereto.^ § 662. Reversions Distinguished from Remainders. To con- found things differing in nature, because of some resemblances, is always undesirable, if for no other reason, because it tends to habits of indistinct thought; but, besides this general consideration, there are some important and essential differences between the two. Thus . incidents belong to a reversion, as fealty and rent, which do not attach themselves as of course to a remainder.* Another important difference between the two lies in the fact that the entire doctrine of covenants running with the land and with the reversion has its application in the case of reversion, and has no cojinection with remainders.^ So, also, the right to re-enter for the breach of an express condi- tion pertains to the owner of the reversion only, and never to a re- mainderman, as such.' Still another important difference is in the nature of the title taken in the two cases. By a remainder a new title is created, the re- mainderman taking by purchase, while the reversioner merely re- tains his old title, with its privileges and burdens, modified only by the fact that he has given up the immediate possession and en- joyment of the property to the tenant of the particular estate. This gives rise to differences (1) in respect of the modes of de- scent, at common law, of a reversion and a remainder, respectively; and (3) in respect of their liability for the grantor's debts." § 663. Same — Difference in Mode of Descent. At common law, a reversion descends like the old title, of which, indeed, it is a part, in the same line therewith, and keeping to the blood of the same first purchaser, whilst a remainder is a new estate acquired by pur- chase, and passes in the line of the new purchaser.^" § 664. Same — Difference in Respect of Liability for Grantor's Debts. Unless there be a specific lien or charge on the land, the remainderman (being a purchaser) is not liable for the general debts of the grantor from whom he derived the estate, whilst a reversion- er must pay the ancestor's debts to the extent of the value of his reversion; that is, at common law, the ancestor's debts of record, B 2 Min. Insts. 427 ; 2 Bl. Com. 176 ; 4 Kent, Com. 355. 8 2 Min. Insts. 427. sAnte, § 475. 7 Ante, §§ 374, 375, et seq. 9 2 Min. Insts. 427, 428. 10 2 Min. Insts. 427, 428; 2 Bl. Com. 176, 243. This is the common-law rule ; but the student must remember that in this country descents are regu- lated by statutes, which, while uniform in some respects, differ in the matter of the descent of reversions. (531) § 665 REVERSIONS MERGER. [Ch. 26 and specialty debts, binding the heirs expressly, and in this coun- try all his debts. Reversions expectant on estates for years are present assets in the hands of the heir; but, if expectant on estates of freehold, they are only quasi assets, to be levied on when they fall in, and in such case the plaintiff may take judgment, quando acciderint.^^ § 665. Merger of Particular Estate — Nature of Merger. A mer- ger occurs whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate, where- by the less is immediately annihilated, or is said to be merged — that is, sunk or drowned — in the greater. Thus, if there be tenant for years, and the reversion in fee simple descends to or is purchas- ed by him, the term for years is merged in the inheritance, and shall never exist any more. Its object is to accelerate the possession, or at least the enjoyment of the estate in which the merger takes place. Its effect is to consolidate the two estates, and confound them into one, the measure of which is that of the more remote of the two, which is not enlarged by the accession of the preceding estate. '^^ § 666. Same — Two or More Estates (Not Mere Rights) in Same Land must Meet in Same Person. This proposition leads Lord Coke to discriminate between several estates (e. g., grant to A. for life, remainder to B. for life), and one estate with several limita- tions (e. g., grant to A. for the life of Z., X., and W.). In the latter case, there is no room for the application of the doctrine of merger; in the former, if A. surrenders to B., or B. releases to A., a merger takes place. ^^ § 667. Same — Reversionary Estate must be at Least as Large as Particular Estate, Thus, an estate at will may merge in an estate for years; estates for years may merge in each other, or in estates of freehold or inheritance; estates for life may merge in each other; estates in fee qualified, or fee conditional, may merge in any estate of like extent with themselves, and a fortiori in the fee simple abso- lute. But, by the express provision of the statute de donis, estates tail are generally privileged from merger.^* § 668. Same — The Rights in Which the Several Estates are to be Held. The several estates must be held in the same legal right, 112 Min. Insts. 428; 2 Th. Co. Lit. 152, note (R). 12 2 Min. Insts. 428, 429; 2 Bl. Com. 177; 2 TIi. Co. Lit. 557, note (K). See ante, § 333. 13 2 Min. Insts. 429; 2 Th. Co. Lit. 557, note (K) ; 3 Preston, Conv. 55 et seq. ; Ross' Case, 5 Co. 14. 1*2 Min. Insts. 429; 2 Th. Co. Lit. 557, note (K) ; 3 Preston, Conv. 16G. et seq. (532) Gh. 26] REVERSIONS — MERGER. § 671 or, when held in different legal rights, one of them must not be an accession to the other by the mere act of the law; i. e., it must be by purchase. Hence, if a husband, possessed of a term in right of his wife, pur- chases the inheritance in reversion or remainder, or if an executor, possessed of a term in right of his testator, purchases the reversion in fee, in both these instances the term will merge. But when the accession of one estate to the other is merely by act of the law, as by marriage, by descent, by executorship, etc., no merger will ensue where the estates are held in different rights ; that is, one of them in one's own private right, and the other in auter droit. ^^ § 669. Same — Doctrine Where the Several Estates are Limited by the Same Instrument. The doctrine of merger will not alter the quality of one of two estates in the same person, or destroy a con- tingent remainder, when the several estates are limited by the same instrument, and some other person is concerned in the merger. Thus, in case of a limitation to A. and B. for their joint lives, re- mainder to Z.'s unborn son for life, remainder to A.'s heirs, A.'s life estate does not merge in his fee simple, for that would dissolve the jointure, exclude B.'s life estate, and defeat the contingent re- mainder of Z.'s unborn son.'^" § 670. Same — Effect of Intention in Preventing Merger. The doctrine of merger does not apply when the union of the two es- tates arises from the joint act of their respective owners, with an intention that the estate of their assignee should continue for the collective time of their several estates.^'' § 671. Same — Effect of Concurrence of Legal and Equitable Es- tates in Same Person. A legal estate cannot merge in an equitable one, but an equitable may, and generally does, merge in a legal one, although not without reference to the intention of the parties. The legal fee governs the order of succession ; indeed, the legal title de- termines the order of succession, as far as the same person has the legal estate, and is the equitable owner; and therefore equi- table interests will be absorbed in, and extinguished by, the legal interests as far as they are united, but not beyond the measure of the legal interests.^* 16 2 Min. Insts. 429, 430; 3 Preston, Conv. 285 et seq., 309; Braicbridge v. Cook, 2 Plowd. 418 ; Piatt v. Sleop, Cro. (Jac.) 375. See 2 Th. Co. Lit. 557, note (K), 563, note (L), 556, notes (H), (I). 18 2 Min. Insts. 430; 2 Th. Co. Lit. 557, note (K) ; 1 Tli. Co. Lit. 744, 746, notes ; 3 Preston, Conv. 376 et seq. IT 2 Min. Insts. 430; 2 Th. Co. Lit. 557, note (K) ; 3 Preston, Conv. 50, 409, 441 ; Bredon's Case, 1 Co. 77a ; Treport's Case, 6 Co. 15a. 18 Ante, § 431; 2 Min. Insts. 228, 430; 2 Th. Co. Lit. 557, note (K) ; 3 Pres- ton, Conv. 567 et seq. (533) § 672 QUASI KEVEESIONS. [Oh. 26 § 672. Quasi Reversions or Possibilities of Reverter. In contra- distinction to reversions, which are vested estates, these interests are contingent, and are well described by the term "mere possibili- ties of reverter." They arise, at common law, upon a conveyance in fee conditional,^" or upon the creation of a fee qualified,^" or upon the conveyance of a fee simple upon condition subsequent.^^ In none of these cases is there any vested interest in the land left in the -grantor by way of reversion, but only a bare possibility that the land will return to him, upon the happening or failure to happen of the various contingencies upon which the estate granted may de- pend. The interest of the grantor is purely contingent.^^ In England it is the recognized doctrine that these interests, like other contingent future interests, are subject to the rule against perpetuities, so that, if land is there conveyed in fee simple upon a condition subsequent, where the contingency upon which it is to terminate may be postponed beyond a life or lives in being and ten months and twenty-one years thereafter, the condition is simply void and the estate absolute and without condition ; that is, the' grantor's possibility of reverter ceases to exist. ^^ But in the Unit- ed States it seems to be held quite generally that the rule against perpetuities has no application to mere possibilities of reverter.^* At common law these contingent estates could not be conveyed directly at law,^" though they might, perhaps, pass by estoppel. isAiite, § 162 et seq. 21 Ante, § 477. 20 Ante, § 160. 22 1 Tiffany, Real Prop. § 116. 23 1 Tiffany, Real Prop. § 155; In re Trustees of HoUis' Hospital, [1899] 2 Ch. 540. See Dunn v. Flood. 25 Ch. Dlv. 629. 24 Hopkins V. Grimshaw, 165 U. S. 342, 17 Sup. Ct. 401, 41 L. Ed. 739 ; Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. Ed. 547 ; Tobey v. Moore. 130 Mass. 448 ; First Universalist Society v. Boland, 155 Mass. 171, 29 N. E. 524, 15 L. R. A. 231; French v. Old South Society, 106 Mass. 479; In re Stickney's Will, 85 Md. 79, 103, 36 Atl. 654, 35 L. R. A. 693, 60 Am. St. Rep. 308. See Gray, Perpet. § 304 et seq. ; 5 Va. Law Reg. 721. 2 5 Ante, § 658. (534) CHAPTER XXVII. EXECUTORY LIMITATIONS. 673. Definition of an Executory Limitation. 674. No Limitation Once Valid as a Remainder can Ever Tliereafter Take Effect as an Executory Limitation. 675. The Several Classes of Executory Limitations — Enumeration. 676. I. Springing Limitations. 677. 1. Vested Springing Limitations — Construed to be Vested if ' Possible. 678. Same— Gifts to a Class. 079. 2. Contingent Springing Limitations. 680. II. Shifting or Conditional Limitations — Their Origin and Nature 681. Same — Shifting ■ or , Conditional Limitations Always Contin gent. 682. III. Future Interests in Chattels. 683. Differences between Executory Limitations and Remainders — Enu- meration. 684. I. Necessity for Preceding Particular Estates. 685. II. Proper Subjects of Executory Limitations and Remainders. Respectively. 686. III. Jlodes of Their Creation, Respectively. 687. IV. In Respect of Their Liability to be Barred or Destroyed. 688. V. In Respect of Their Liability to Dower and Curtesy. 689. VI. Applicability of the Rule in Shelley's Case. 690. Effect of Failure of Preceding Estate — Executory Limitation Ac- celerated. 691. Effect of Failure or Regular Expiration of Ulterior Limitation. 692. Alternative Limitations. 693. Cross Limitations. 694. The Rule against Perpetuities — Necessity for the Rule. 695. The Precise Terms of the Rule. 696. The Period Prescribed by the Rule against Perpetuities. 697. Meaning of "Life or Lives in Being." 698. Mere Improbability that Limitation will Take Effect beyond the Period Prescribed Immaterial. 699. Rule Applies Only to Contingent Interests. 700. Considerations Leading to the Adoption of the Particular Period Prescribed by the Rule. 701. The Time from Which the Period is to be Estimated. 702. Effect of Remoteness of Limitation. 703. Severability of the Contingencies. 704. Instances of Application of Rule against Perpetuities to Springing Limitations. 705. Instances of Application of Rule to Shifting or Conditional Limita- tions. 1. Limitations Shifting upon an Indefinite Failure of Heirs, Heirs of the Body, Issue, etc. 706. 2. Failure of Heirs, etc., at a Definite Time, Not Too Remote. 707. 3. Limitations upon a Dying without Heirs, Heirs of the Body, Issue, etc. (535) § 673 EXEC. LIM'n DEFINITION. [C]l. 27 § 708. An Ulterior Limitation is Void if Full Power of Disposition of the Property be Expressly Given to the First Taker. 709. If One Limitation in a Conveyance be Executory, All Subsequent Ones are in General Executory Limitations Also. 710. Any Number of Executory Limitations, Even of tbe Fee Simple, may Succeed One Another, if Not Too Remote. 711. Limitations must Not, upon a Future Contingency, Cease as to Part, and Vest and Revest. 712. Limitation to Person Not in Esse, may be Valid, if Not Too Remote. 713. Disposition of Title to Property Devised, Pending the Contingency. 1. Lands. 714. 2. Disposition of Title to Chattels Prior to Vesting of an Executory Limitation. 715. Transfer of Executory Limitations and Their Liability for Debts. 716. Trusts for Accumulation. § 673. Definition of an Executory Limitation. An executory limitation is defined to be a limitation of a future estate in lands which is contrary to the common-law rules of limitation regulating the creation of remainders, but which is practicable under the stat- utes of uses and of wills, by reason of their dispensing with actual livery of seisin to create a freehold.'- § 674. No Limitation Once Valid as a Remainder can Ever Thereafter Take Effect as an Executory Limitation. Since, by its definition, an executory limitation is one which is contrary to the common-law rules governing the creation of remainders, it fol- lows necessarily that no limitation which in its creation was good as a remainder falls within the scope of the definition of an ex- ecutory limitation, even though, for some cause arising after its creation, it ceases to be good as a remainder. Hence it is a rule of the law that a limitation, once a remainder, is always a remainder, and can never take eft'ect as an executory limitation.^ Thus, upon a conveyance by feoffment with livery, or under the statute of uses, or upon a devise, "to A. for life, and after his death to such of his children as shall become twenty-one," this creates a valid contingent remainder, which at common law can vest only in such of A.'s children as shall have reached twenty-one at A.'s death. If at that time all of A.'s children are under twenty- one, their estate fails altogether as a remainder at common law; but it cannot be sustained as an executory limitation because dur- ing A.'s lifetime it was a valid contingent remainder.' But if the 12 Jlin. Insts.,430; Fearne, Rem. 386, note (6), 382, note (a), 10 et seq., note (h). 2 2 Min. Inst.s. 431 ; Fearne, Rem. 385, note (b) ; Purefoy v. Rogers, 3 Saund. 388, note. 3 Festing v. Allen, 12 M. & W. 279 ; Rhodes v. Whitehead, 2 Drew & S. 532. (536) ■Ch. 27] EXEC. LIM'N VALIDITY AS REMAINDER. § 674 original limitation were to A. for life, remainder to such of A.'s children as become twenty-one after A.'s death, this could never be good as a remainder, because of the certainty of an interval or a gap between the particular estate and the remainder,* and hence, if the limitation is contained in a will or in a deed operating under the statute of uses, it might take effect as an executory limitation.^ So, upon a devise "to A. for life, remainder to B. in fee, if he survives C", the limitation to B. is a contingent remainder at its creation, which would fail at common law if B. dies before C, and once good as a remainder it could not be sustained as an executory limitation. But if the original limitation were "to A. for life, and aft- er one year from A.'s death to B. in fee, if he survives C", B.'s es- tate could never take effect as a remainder because of the interval, -and hence could be sustained as an executory limitation." So, if the particular estate, intended to precede the remainder, should be insufficient for the purpose or should fail to take effect at all, so that the ulterior limitation could never take effect as a remainder because of the total absence or insufficiency of the pre- ceding estate to support it, the limitation may be sustained as an executory limitation, having never been valid as a remainder. Hence, upon a devise of a contingent remainder of freehold, pre- ceded by an estate for years, as to A. for ten years remainder to the heirs of B.,. since the latter estate, under the rule of the common law demanding that a contingent remainder of freehold shall be preceded by an estate of freehold,'' cannot be a valid remainder, it may take effect as an executory limitation.* So, also, if the limitation is by will, and the particular tenant dies before the testator, so that his estate lapses and never takes effect, the subsequent limitation could never be good as a remainder, and therefore may be upheld as an executory limitation. ° Thus, upon a devise to B. for life, remainder to the first and other sons of B. successively in tail, remainder to the future sons of C. successively for life — where B. died without issue before the testator, and at the testator's death C. had no sons, but some were born later— the limitations to C.'s sons, which were originally intended to take ef- fect as remainders, but failed to do so because of B.'s death before the testator without issue, were supported as executory limita- tions.^" But if, in the case put, the particular tenant had survived the testator, though only for a day, the limitation to C.'s sons *Ante, § 594. TAnte, § 592. 5 In re Lecbmere, 18 Ch. Div. 524. sAnte, § 592. eAnte, § 594. 9 2 Min. Insts. 447. 10 2 Min. Insts. 447; Fearne, Rem. 52.o, 526; 2 Washburn, Real Prop. 348; Hopkins V. Hopkins, Cas. temp. Talbot, 44. (537) § 675 EXEC, lim'n — CLASSES. [Oh. 27 would have taken effect as a remainder, and could not thencefor- ward have been sustained as an executory limitation. § 675. The Several Classes of Executory Limitations — Enu- meration. Executory limitations arising under the statute of uses are frequently designated generically executory or future uses, and those arising under the statute of wills are generally known as ex- ecutory devises; but they are all executory limitations, and are subject to the same rules. But there is another classification of executory limitations which is more important from the standpoint of the application of prin- ciples. They are to be classified as follows : (1) Springing limi- tations, that is, freehold estates to commence in futuro, without any, or a sufficient, preceding estate; (2) shifting or conditional limitations, that is, the substitution of a freehold estate vested in one person by an estate in another; and (3) future or executory in- terests in chattels. § 676. I. Springing Limitations. At common law a freehold estate in land to commence in futuro, without any, or without a sufficient, preceding estate, cannot be created, because, as we have seen, it cannot arise without livery of seisin, which must in its nature take effect immediately, or not at all, and if it should take effect so far as to pass the freehold out of the grantor, the same would be vested in nobody, but would be in abeyance, contrary to the established policy of the common law as to freeholds; ^^ but in conveyances operating under the statutes of uses and wills, which pass the freehold without livery of seisin, this reason does not ap- ply. The freehold remains in the grantor, or in the devisor's heirs, until the time appointed for it to take effect, and then passes to the grantee or devisee, by the force and effect of the several statutes. The future limitation may be either appointed to arise upon a con- tingency (e. g., a devise to the heirs of A., who is yet living, or to the unborn son of A.), in which case it is a contingent limitation, or at a period certain (e. g., a grant to A. for life, or in fee, to com- mence five years from date), in which case it is vested; but in either case, in order to constitute an executory limitation, there must be no, or no sufficient, preceding particular estate to give it effect as a remainder, for the rule admits of no exception, being, indeed, as we have seen, of the essence of the definition, that no estate can be construed to be an executory limitation which is ca- pable of taking effect as a remainder.^^ 11 2 Mln. Insts. 431 ; 3 Th. Co. Lit. 102, note (G) ; 2 Bl. Com. 165, 166. 12 2 Min. Insts. 431, 432; Fearne, Rem. 395 et seq., note (d), 3S2, note (a), S94 et seq. ; 1 Th. Co. Lit. 646, note (C). (538) Oh. 27] EXEC. LIm'n VESTED SPRINGING LIMITATIONS. § 677 In devises, such limitations are not otherwise known than as executory devises; but when they occur in conveyances operating under the statute of uses, they are called springing uses. However created, they must, if contingent, be so Hmited as necessarily to take effect, if at all, within the period prescribed, of a life or lives in be- ing and ten months and twenty-one years thereafter.^^ These springing limitations are either (1) vested, or (2) con- tingent, depending upon whether they are subject to a condition precedent and whether the beneficiaries are ascertained. § 677. 1. Vested Springing Limitations — Construed to be Vest- ed if Possible. In conformity to the rule of construction applicable to estates upon condition, namely, that in case of doubt an instru- ment will be construed, if possible, as not creating an estate upon condition, especially upon condition precedent, ^^ it is a general prin- ciple governing springing limitations that they are to be regarded as creating vested, and not contingent, interests, where such a con- struction is reasonable and practicable ; that is, as creating inter- ests vested in right, with only the possession thereunder deferred.^"^ Thus the use of such words of futurity as "when," "at," "after," "in the event of," etc., if they refer to an event which must neces- sarily happen, the time of its occurrence alone being unascertained, are not generally construed as creating conditions precedent to the vesting of the estate in right, but only as marking the time when the enjoyment of the possession is to commence.^" Upon this principle a devise "after" the payment of debts or legacies gives the devisee a vested estate, subject merely to a charge created for such debts or legacies, and does not postpone the vest- ing." 13 2 Min. Insts. 432; Fearne, Rem. 382, note (a), 373, 392; 2 BI. Com. 172, 173, 434, note (51) ; Gilbert, Uses, 78, Sugden's note (5). 14 Ante, § 469. 16 1 Tiffany, Real Prop. § 141; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct 652, 28 L. Ed. 1015 ; Young v. Kinkead, 101 Ky. 252, 40 S. W. 776 ; Van Brunt V. Van Brunt, 111 N. Y. 178, 19 N. E. 60 ; Dulany v. Middleton, 72 Md. 67, 19 Atl. 146; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94; Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623; Patton v. Ludington, 103 Wis. 629, 79 X. W. 1073, 74 Am. St. Rep. 910. leAnte, § 601; 2 Min. Insts. 416, 417; Doe v. Moore, 14 East, 601; Doe V. Norvell, 1 M. & S. 334 ; Edwards v. Hammond, 3 Lev. 132 ; Bromfield v. Crowder, 1 Bos. & P. (N. R.) 313. In tlie case of future limitations of chattels, the same doctrine is applied with qualifications. 3 Min. Insts. 592. But see 1 Jarman, Wills, 762 ; 1 Tiffany, Real Prop. § 141 ; Kingman v. Harmon, 131 111. 171, 23 N. E. 430. Ill Tiffany, Real Prop. § 141 ; 1 Jarman, Wills, 777 ; Bowling v. Dobyn, 5 Dana (Ky.) 434 ; Little's Appeal, 117 Pa. 14, 11 Atl. 520 ; Scofleld v. Olcott, 120 111. 362, 11 N. E. 351 ; Neely v. Boyce, 128 Ind. 1, 27 N. E. 169. (539) § 677 EXEC. LIM'n VESTED SPRINGING LIMITATIONS. [Oh. 27 So, also, as in the case of remainders,^* a question of construc- tion may arise upon a devise to the "surviving" children of A., whether the term "surviving" is to be referred to the death of the testator or to some other future event. In such case, if the gift is immediate — that is, if it is intended to take effect in possession immediately upon the testator's death — there is no other time to which it can be referred except that of the testator's death. '^^ But, if the possession be postponed to a period later than the testator's death, there is not the same necessity of construction. For ex- ample, if the devise be to the surviving children of A. after the death of B., a question may be raised as to whether the devisees intended by the testator are the children of A. who are living at the testator's death (whose possession, however, would be post- poned until the death of B.), or whether they are to be such of A.'s children as are living at B.'s death. In the former event, the dev- isees are ascertained persons, whose estates would be vested in right, but with the possession postponed till B.'s death; in the lat- ter, the devisees could not be ascertained until B.'s death, and would therefore take contingent estates. § 678. Same — Gifts to a Class. Just as, in the case of a remain- der to a class, the remainder is vested if, or as soon as, any members of the class are in existence or answer the description of the class, but is contingent until that time,^" so in the case of springing limi- tation to a class, such as a devise to the children, brothers, nephews, etc., of A., the possession not being postponed by the terms of the devise beyond the testator's death, the children, etc., who are liv- ing at the testator's death are prima facie the beneficiaries of the will, to the exclusion of after-born children, etc.^^ If the possession is in terms postponed to a period subsequent to the testator's death, or, in case of a deed, subsequent to its execution and delivery, each of the children, brothers, nephews, etc., living at the testator's death (or at the execution of the deed) take prima facie vested es- tates, subject to open up and let in children, etc., born thereafter, but prior to the date when possession is to be given. ^^ 18 Ante, § 600. isArmlstead v. Hartt, 97 Va. 316, 33 S. E. 616; Grossman y. Field, 119 Mass. 170. 20 Ante, § 606. 211 Tiffany, Real Prop. §142; 2 Jarman, Wills, 1010; Scott- v. Harwood, 5 Madd. 332; Merrlam v. Simonds, 121 Mass. 198; Downing v. Marshall, 23 N. X, 373, SO Am. Dec. 290 ; Wood v. McGuire, 15 Ga. 202. 22 1 Tiffany, Real Prop. § 142; 2 Jarman, Wills, 1011; Oppenheim v. Henry, 10 Hare, 441; Hall v. Hall, 323 Mass. 120; Hill v. Rockingham Bank, 45 N. H. 270. (540) Oh. 27] EXEC. LIM'n SHIFTING OE CONDITIONAL. § 680 § 679. 2. Contingent Springing Limitations. A springing limi- tation is contingent (corresponding to a contingent remainder), whenever it is limited to a person unascertained or not in being or upon the happening of an uncertain event or condition precedent, there being no preceding estate, or no sufficient one, to support it as a contingent remainder. In other words, wherever the limita- tion, but for the initial absence of a sufficient preceding estate, would be a valid contingent remainder, it will operate as a contin- gent springing limitation. But if it has ever once taken effect as a remainder, though it subsequentlj^ fails as such, it can never there- after take effect as an executory limitation of any sort.^^ Thus, a limitation to the heirs, heirs of the body, issue, unborn child, etc., of B. (a living person), without a preceding estate of freehold, or with no preceding estate at all, is a contingent spring- ing limitation, as would also be a limitation to B. upon the marriage of A., or a limitation to such of B.'s children as shall attain the age of twenty-one, B. having none of that age at the time of the gift, etc. In the main, as we shall find in the course of the discussion, quite similar rules are applicable to springing limitations as apply to remainders; the differences betweea them being not so much differences of construction, as in origin (the one existing at com- mon law, the other only under statutes) and in the requirement of a preceding estate for remainders, but not for springing limita- tions. § 680. II. Shifting or Conditional Limitations — Their Origin and Nature. The student will recall that two of the rules govern- ing remainders are (1) that no remainder can be limited after a vested fee simple;^* and (2) that no remainder, which is to take effect in derogation of the preceding estate, is valid, it being es- sential that the remainder await its regular expiration. ^^ The common-law principle is that a freehold estate once created can in general be terminated prematurely in advance of the period marked out in its original limitation only by a re-entry of the gran- tor or his heirs for a condition broken, for as the estate is created by livery of seisin, an equally notorious ceremony was required for its premature termination, and that was found in the re-entry above mentioned. And upon such re-entry the grantor or his heirs was seised, as of his original estate, by title paramount, thus wiping out and destroying, not only the estate terminated, but all ulterior limitations contained in the same grant as well.^' It is for this 2 3 Ante, § 674. 25 Ante, §§ 592, 6.50. 24Ante, § 595: 26Ante, §§ 474, 481. (541) § 680 EXEC. LIM'N SHIFTING OR CONDITIONAL. [Oh. 27 reason that a remainder must await the regular expiration of the preceding estate, and cannot take effect in derogation thereof. But the statutes of uses and wills having dispensed with the necessity of livery to create the freehold, there is no longer the same necessity for the grantor's re-entry to determine it premature- ly, and in fact such estates may in modern times be ended pre- maturely, and, if limited over to another, pass to such persons with- out any re-entry, by way of shifting or conditional limitation. ^^ Thus, if a devise were made to A. and his heirs, and in case A. should die under twenty-five (or in case B. should die, leaving no issue at his death, or in case A. should marry W., or any other condition) then to Z. and his heirs, the limitation to Z., while in- valid as a remainder, because limited after a vested fee simple, and because it must take effect in derogation of A.'s estate, if it is to take effect at all, is valid as a conditional limitation, and would give Z. the fee, of which A.'s death under twenty-five (or marriage, etc.) had divested A.^* So, if the devise were to A. for life, and should a named event happen (such as A.'s marriage to W.) then at once to B. in fee, B.'s estate could not take effect as a remainder, because it would be in derogation of A.'s estate ; but it would be sustained as an executory limitation of the second class, that is, as a shifting or con- ditional limitation.^" But if the words "at once" were omitted, it would be construed as intended to be limited to await the regular expiration of A.'s estate, and thus might take effect as a remain- der. In other words, A.'s marriage to W. or other event would not be construed as a condition subsequent attached to A.'s estate, but merely as a condition precedent attached to B.'s ^^ § 681. Same — Shifting or Conditional Limitations Always Con- tingent. Since shifting limitations arise, not upon the regular ter- mination of the preceding estate, but after it has been prematurely divested upon a contingency or condition subsequent, they must necessarily be always contingent. But the preceding estate may itself be either a present estate in possession, a vested or contingent remainder, or a vested or contingent executory limitation, either springing or shifting. Thus, upon a conveyance or devise "to A. in fee, but if A. die un- der thirty then to B. in fee," A.'s estate is vested in possession, and the shifting or conditional limitation to B. is contingent upon A.'s 27 2 Min. Insts. 432 ; 2 Th. Co. Lit. 87, note (L, 2), 768, Butler's Note II. 28 2 Mm. Insts. 433; 2 Bl. Com. 173, 174; Feanie, Rem. 399 et seq., note (d) ; Pells V. Brown, Cro. (Jac.) 540 ; Gulliver v. Wicket, 1 Wils. 105. 2 "Ante, § 592. so Ante, §§ 470, 594. (542) Ch. 27] EXEC. LIM'n FUTURE INTERESTS IN CHATTELS. § 682 dying under thirty. And so it would be if the devise were "to X. for life, remainder after X.'s death to A. in fee, but if A. die under thirty then to B. in fee," or "to A. in fee after the death of X., but if A. die under thirty then to B. in fee" (in the first case A., taking a vested remainder, and in the second a vested springing limitation)'. So, upon a devise "to C.'s eldest son (unborn) in fee, but if he die under thirty to B. in fee," the preceding estate is a contingent springing limitation, and if it were preceded by a freehold particular estate, would be a contingent remainder. But in all of these cases equally the limitation to B. is contingent upon the death under thirty of the tenant of the preceding estate. ^^ § 682. III. Future Interests in Chattels. A gift of a term for years, or any other chattel, after a previous disposition thereof for life, or indeed for any time, was originally held void, because it was thought that, being by many accidents subject to be lost, destroyed, or otherwise impaired, and the exigencies of trade, moreover, requir- ing a free circulation thereof, it would tend to quarrels and strife, and to obstruct the freedom of commerce, if such limitations in re- mainder were generally tolerated and allowed. But yet, in process of time, in last wills, such limitations of chattels in remainder, even after a life estate therein, were permitted, though originally that indulgence was shown only when the use merely of the chattels, and not the chattels themselves, was given to the first taker; the prop- erty being supposed to continue all the time in the executor of the testator. That distinction, however, as also the distinction between such limitations by will and by deed, has long been disregarded, and remainders, both by deed and by will, have for more than a hundred years past been as freely allowed in case of terms for years, and of other chattels, as in case of freehold estates in lands, with two qualifications only, namely: First, that the things given shall not be such as are consumed in the use (in which case the first taker becomes the absolute owner of the subject) ; and secondly, that even in England, and much more with us, an estate tail to the first taker carries with it the fee simple.'^ Having reference to the foregoing explanation, the limitations in future of terms for years, or other chattels, can hardly be classed with propriety, in modern times, amongst executory limitations — 31 Post, § 691; 1 Tiffany, Real Prop. § 147; Hall v. Warren, 9 H. L. Cas. 420; Burbank V. Whitney, 24 Pick. (Mass.) 146, 35 Am. Dec. 312; Perkins V. Fisher, 8 C. C. A. 270, 59 Fed. 801. 82 2 Min. Insts. 433, 434; 2 Bl. Com. 398, 174; 2 Kent, Com. 352; 2 Th. Co. Lit. 646, note (C) ; Fearne, Rem. 402 et sea. ; Dunbar v. Woodcock, 10 Leigh (Va.) 628. (543) § 682 EXEC. LIm'^ST — FUTURE INTERESTS IN CHATTELS. [Gh. 27 not when they are merely remainders, since as remainders they are equally good by deed as by will; nor when they want the attributes of remainders, for they do not owe their validity and effect to either of the statutes which give rise to executory limitations, nor to any statute whatsoever, but simply to the principles of the common law. Thus, if the owner of a term for one hundred years, or of a horse,^ gives the same, whether by deed or will, to A. for life, and after- wards to Z., the limitation to Z., according to the modern view of the common law, is a vested remainder in fee, governed by rules closely analogous to those which control remainders in case of free- hold estates in lands. And so, also, if the owner of a term for one hundred years, or of a horse, gives it by deed or will to A., to take eflfect five years hence, or to A. in fee, and if he should leave no is- sue living at his death to Z. in fee, there is no occasion to invoke anything but the common law, nor, indeed, is there anything else to invoke, in order to give full effect to the limitations. There being no livery of seisin required in the transfer of chattels, and no similar notoriety to determine any interest in them, A.'s future limitation, in the first instance, may spring up at the appointed time, and Z.'s shift from A. to himself, upon the appointed contingency, without the aid of any statute, just as in freehold estates may be the case by the force and effect of the statutes of uses and of wills. -Such limitations of chattels, however, are for the most part, con- trolled by the same rules which govern executory limitations proper, and, without inconvenience, may be called by the same name, noting the few differences which exist, as they occur.^^ One of the most prominent differences between future limita- tions of chattels (which, however, appHes only to chattels personal), and of freehold estates in lands, relates to the consumability of the subject. The doctrine seems to be that gifts for life of things con- sumed in the use, such as provisions needed for subsistence during the current year, admit of no subsequent limitation, but vest the absolute property in the donee; but that, as to other subjects of personalty, not consumed in the use, a limitation, even after a life estate, is allowable, with a varying degree of responsibility in the life tenant, or his representatives, for the forthcoming and condition of the several articles, according to their character. Thus, as to things which are intended for use, and are not reproductive, such as agricultural implements and work cattle, the life tenant's estate is answerable only for the forthcoming of such of them as were in existence at the life tenant's death, in the state in which they then were, although worn and impaired, supposing such deterioration or 33 2 Mln. lusts. 434. (544) Ch. 27] EXEC. LIM'n — DISTINGUISHED FROM REMAINDERS. § 684 destruction not to have been brought about by his default; com- modities adapted to reproduction, such as brood mares, flocks of sheep, and the like, the tenant for life is bound to keep up in kind, and his estate is accountable for them accordingly, unless de- stroyed or impaired by casualty ; and money, whether given directly, or the proceeds of chattels vi^hich either were sold, or in the ordinary course of business were subjects of sale, the life tenant's estate must account for as of his death. *** § 683. Differences between Executory Limitations and Remain- ders — Enumeration. It must be remembered that an estate is never to be construed to take effect as an executory limitation, if it has ever taken effect as a common law remainder, either vested or con- tingent ; for which, also, there are reasons of policy, which a close study of the diflferences presently to be mentioned will disclose.'? In order to understand the differences between executory limita- tions and remainders we must have regard to (1) the necessity for the existence of a preceding particular estate ; (2) the proper sub- ject of executory limitations and of remainders, respectively; (3) the modes of creating them, respectively; (4) the difference between them in respect to the liability to be barred or destroyed) (5) the difference in respect to liability to dower and curtesy, respectively; and (6) the applicability to them, respectively, of the rule in Shel- ley's Case.'*' § 684. Same — I. Necessity for Preceding Particular Estate. In an executory limitation no preceding estate is needed. The estate, though a freehold (since no livery of seisin is required), inay spring up at any future period not too remote, or may shift from one to another. And, if there be a preceding estate, it is not necessary that the executory limitation should vest when such preceding estate determines. To a remainder, on the other hand, a preceding estate is by the definition thereof indispensable, and its determination be- fore the remainder is ready to vest, or its taking effect in derogation thereof, is, at common law, fatal thereto.'^ 3*2 Min. Insts. 434, 435; Dunbar y. Woodcock, 10 Leigh (Va.) 628, 653; Randall v. Russell, 3 Heriv. 194. But see Madden v. Madden, 2 Leigh (Va.) 377, 389, 392. 3 5 Ante, § 674; 2 Min. Insts. 435; Pearne, Rem. 393, 394; Purefoy v. Rogers, 3 Saund. 388, note ; Doe v. Morgan, 3 T. R. 763 ; Goodtitle v. Billing- ton, 2 Dougl. 758. 3 6 2 Min. Insts. 435. 37Aiite, § 592; 2 Min. Insts. 436; Fearne, Rem. 399 et seq., note (d), 382, note (a), 416, note (a), 418 ; 2 Waslaburn, Real Prop. 356. If the remainder is vested, the termination of the particular estate before the remainder falljs in does not, even at common law, affect the remainder. Ante, § 722. MiNOE & W.Rbal Peop.— 35 (545) § 685 EXEC. LIM'n DISTINGUISHED FROM REMAINDERS. [Oh. 27 § 685. Same — II. Proper Subjects of Executory Limitations and Remainders, Respectively. Executory limitations relate to both real and personal property, and are governed by the same general rules, whatever the subject, while remainders originally existed in lands only. But this difference has in modern times virtually ceased to exist, remainders being allowed in chattels with scarcely less free- dom than in freehold estates in lands. ^^ § 686. Same— III. Modes of Their Creation, RespectiveV- Ex- ecutory limitations of freehold estates in lands can be created only by conveyances operating under the statutes of uses and of wills, whereby livery of seisin is dispensed with, and not by conveyances operating at common law. Remainders may be created by either - class of conveyance.^" § 687. Same — IV. In Respect of Their Liability to be Barred or Destroyed. Executory limitations are incapable of being barred by the alienation, or any other act, or by any omission, of the per- sons seised of the preceding estate, because the title of the execu- tory devisee or grantee is not through, or as privy to the immediate taker, but quite independent of him ; nor are such executory limi- tations affected by a recovery suffered by the first taker, because the supposed recompense, which is the principal ground for the operative effect of a recovery, cannot consistently be presumed to extend to the future devisee or grantee, whose title is independent of such first taker's ; nor are they liable to merger when the de- feasible estates and the future limitation become vested in the same person. Contingent remainders, on the other hand, may be de- stroyed at common law by fine or recovery, by merger of the par- ticular estate, or by any displacement thereof. And this is stated to be in England the great and essential difference.*" § 688. Same— V. In Respect of Their Liability to Dower and Curtesy. In the case of conditional limitations, under certain cir- cumstances, the preceding estate, supposing it to be an inheritance, is liable to dower and curtesy, which are not defeated by its actual determination.*^ But no remainder, whether contingent or vested, if it comes after a freehold, admits of dower or curtesy. Nor can there be dower or curtesy in the future limitation, for a like reason. Nor, of course, in case of a remainder, does the preceding particular 38 2 Min. Insts. 433, 436; 2 Bl. Com. 398, 174, 175; Fearne, Rem. 5, note (c), 401, note (e), 416, note (a), 418. 39 2 Min. Insts. 430, 431; Fearne, Rem. 416, note (aV ■40 2 Min. Insts. 436, 437 ; Fearne, Rem. 416, note (a), 418 ; Hargrave, Law Tracts, 518; 2 Wasliburn, Real Prop. 356. *iAnte, §§ 233, 256. (546) Ch. 27] EXEC. LIM'n FAILURE OF PRECEDING ESTATE. § 690 estate admit of dower or curtesy, for that with us, since the aboli- tion of estates tail, can never be an estate of inheritance.*^ § 689. Same — VI. Applicability of Rule in Shelley's Case. The rule in Shelley's Case is not applicable to executory limitations, as we have seen that it is at common law, in case of nominal contin- gent remainders, apparently because the limitation to the ancestor and the heirs are not parts of the same estate, but are distinct and independent dispositions of the subject.^' § 690. Effect of Failure of Preceding Estate — Executory Limi- tation Accelerated. Where there is a conditional limitation, to take effect in derogation of a preceding estate upon the occurrence of some contingent event, if, for any reason not connected with that contingency, the preceding estate never takes effect, as where the first taker dies before the testator (in which case the devise to him lapses and is void at common law), or where the first taker nev- er comes into existence, the general rule is that the ulterior limita- tion, if limited to an ascertained person, is accelerated and takes ef- fect at once.** Thus, where one devises land to the child of which his wife is (supposed to be) then enceinte, and if such child die under twenty- one then over, the wife as a matter of fact not being pregnant, the devise over will take effect immediately upon the testator's death.* '* And so, if for any reason the preceding estate is void, the limitation over will take effect immediately.*" But, while such is the general rule, an exception, thereto must be noted where the circumstances of the failure of the first estate are such as would have excluded the second taker altogether, had the first estate taken effect.*^ Thus, upon a devise "to A. in fee, but if he die under twenty-five to B. in fee," if A. never comes into existence, or if he has died under twenty-five and before the testator, the limitation to B. is accelerated. But if he should die 42 2 Mm. Insts. 437; 2 Washburn, Real Prop. 374; Cocke v. Philips, 12 TLeigh (Va.) 248. 4 3 Ante, § 609 et seq. ; 2 Min. Insts. 437; Fearne, Rem. 276. 44 1 Tiffany, Real Prop. § 147 ; Fearne, Rem. 237, 509 ; 2 Jarman, Wills 1642 et seq. ; Avelyn v. Ward, 1 Ves. Sr. 420 ; Robison v. Female Orphan Asylum, 123 U. S. 702, 8 Sup. Ct. 32 T, 31 L. Ed. 293; Perkins v. Fisher, 8 C. C. A. 270, 59 Fed. 801 ; In re Miller's Will, 161 N. Y. 71, 55 N. E. 385 ; Mathis V. Hammond, 6 Rich. Eg. (S. C.) 121. 45 2 Min. Insts. 433; 1 Tiffany, Real Prop. § 147; Jones v. Westcomb, 1 Eq. Cas. Abr. 245, pi. 10; Frogmorton v. Holyday, 3 Burr. 1618. 46 1 Tiffany, Real Prop. § 147; Hall v. Warren, 9 H. L. Cas. 420; Bur- bank V. Whitney, 24 Pick. (Mass.) 146, 35 Am. Dec. 312; Perkins v. Fisher, S C. C. A. 270, 59 Fed. 801. 47 1 Tiffany, Real Prop. § 147 ; Tarbuck v. Tarbuck, 4 L. J. Ch. 129 ; Doe (547) § 691 EXEC. LIM'n EXPIRATION OF ULTERIOR LIMITATION. [Ch. 27 before the testator, but after having reached twenty-five, the devise over to B. can never take effect.** § 691. Effect of Failure or Regular Expiration of Ulterior Limi- tation. It is a general rule governing conditional limitations that where a valid disposition of property is followed by a limitation over, which from some cause fails to take effect, that fact does not invalidate the previous disposition.*" • On the contrary, if the beneficiary of the ulterior limitation should never come into existence, or the ulterior limitation is void for remoteness, or otherwise is, or becomes, void, upon the hap- pening of the designated contingency, since the estate cannot upon that event go, as directed, to the second taker, a grave ques- tion arises whether the estate shall remain in the first taker, not- withstanding the occurrence of the event which was designed to determine it, or whether, his estate terminating, the property should return to the grantor or the testator's heirs. In other words, the question at issue is whether the contingency designated is intended by the grantor or testator to operate pri- marily as a condition precedent to the vesting of the ulterior limi- tation, or as a condition subsequent attached to the preceding es- tate. In England the general rule seems to be to regard it as the in- tention to make the condition operate primarily as a condition sub- sequent, terminating the preceding estate, even though the limita- tion over cannot take effect, except where the ulterior limitation is void for remoteness, as violating the rule' against perpetuities, in which case the preceding estate continues to exist, despite the oc- currence of the event upon which it was to have gone over, for in- dependent reasons considered later. ^° But in the United States generally the opposite view is taken, and the condition is regarded as a condition precedent to the vesting of the ulterior limitation rather than as a condition subsequent to V. Brabant 4 T. R. 706; Lonias v. Wright, 2 My, & K. 769; McGreevy v. McGratli, 1.52 Mass. 24, 25 N, E, 29; Mathis v. Hammond, 6 Rich. Eq. (S, C) 127. 48 Doe V. Brabant, 4 T. R, 70G ; Williams v. Chitty, 3 Ves. 549; 1 Tiffany, Real Prop, § 147, note 268, ■iisGoi-e V, Gore, 2 P, Wms, 28; Loyd v. Loyd, 102 Va, 527, 46 S. E. 687; Goldsborough v, Martin, 41 Md. 488; Heald v, Ileald. 56 Md. 300; Law- rence's Estate, 136 Pa, HrA. 20 Atl. 521, 11 L, R. A. 85, 20 Am. St. Rep, 925; Saxton V. Webber, 83 Wis. 617, 53 N, W, 905, 20 L, R. A. 509. 60 1 Tiffany, Real Prop. § 148 ; Sugden, Powers (3d Ed.) 513 ; Doe v. Eyre, 5 C.^B. 713; Robinson y. Wood, 27 L, J, Ch. 726; Hurst y. Hurst, 21 Ch, Div, 278. See 20 Am. & Eng. Ency. Law (1st Ed.) 947, note. (548) Ch. 27] EXEC. LIM'n ALTERNATIVE LIMITATIONS. § 692 the estate of the first taker, and hence the preceding estate is not terminated, but continues in the first taker according to the original Hmitation, unless a contrary intention clearly appear on the face of the instrument.-''^ Upon the same principle, namely, that the grantor's or testator's intention is to regard the contingency as a condition precedent to the ulterior limitation rather than a condition subsequent to the prior limitation, it is held, even in England, that the happening of the event defeats the prior limitation only to the extent necessary to permit the ulterior limitation to vest. Thus, upon a devise to A. in fee, but if B. marry C. then to B. for life, and B. marries C, while A.'s estate is defeated to the extent necessary to give B. an estate for his life, upon his death the land will return to A. or his heirs, and not to the heirs of the testator. ^^ § 692. Alternative Limitations. Alternative limitations are closely analogous to alternative remainders, already discussed.^' They consist of executory limitations, made in the alternative, so that if the contingency upon which the first is to take effect does not happen, so as to vest the first estate, the second and alternative limitation may take effect and vest in its place, while, if the first vests, the second is of no effect. '"'■' In the nature of things, both the limitations must be contingent- until the event happens that is to determine which of them shall vest. Both the limitations may be springing, or both may be con- ditional or shifting, limitations ; but they are contingent until one vests, whereupon the other is destroyed. Thus, upon a devise "to the eldest son (unborn) of A. in fee, but if A. have no son to B. in fee at A.'s death,'' the limitation to B., as well as that to A.'s son, is a springing limitation. On the other hand, upon a devise "to A. in fee, but if A. dies leaving issue at his death then to such issue, if he dies leaving no issue at his death then to B. in fee," the limitations to A.'s issue and to B. are 511 Tiffany, Real Prop. § 148; Gray, Perpet. § 250.; Medley v. Medley, 81 -ya. 265 ; Drummond v. Drummond, 26 N. J. Eq. 234 ; Groves v. Cox, 40 X. J. Law, 40 ; North Adams Universalist Sec. v. Boland, 155 Mass. 171 : Merriam v. Simonds, 121 Mass. 198 ; Shadden v. Hembree, 17 Or. 14, IS Pac. 572. But see Leonard v. Burr, 18 N. Y. 96. 52 1 Tiffany, Real Prop. % 148 ; Gatenby v. Morgan, .1 Q. B. Div. 685 ; Jackson v. Noble, 2 Keen, 590; Tbomae v. Thomae (N. J.) 18 Atl. 355. See 2 -Washburn, Real Prop. 346. Contra, Doe ex dem. Harrington v. Roe, 1 Houst. (Del.) 398. 5 3 Ante, § 639. 04 1 Tiffany, Real Prop. § 144; Fearne, Rem. 508, 514; Stephens v. Stephens, Cas. temp. Talbot, 228. (549) § ' 692 EXEC. LIM'n ALTERNATIVE LIMITATIONS. [Ch. 27 alternative limitations, but both are shifting or conditional limita- tions. ^° It may also be noted in this connection that there may be a limi- tation over to a person, which will in one event operate as an alter- native remainder, and in another event as an executory limitation. Thus, upon a devise "to A. for life, remainder to his issue, and if he have no issue, or if, in case he has issue, such issue should die under twenty-one, then over to B.," B. has an alternative contingent remainder after A.'s life estate so long as A. has no issue ; but as soon as A. has issue the remainder to such issue vests, and the al- ternative remainder to B., contingent upon A.'s having no issue, fails altogether. But immediately upon the birth of A.'s issue B. acquires an entirely new estate by way of conditional (though not alternative) limitation, dependent upon the death under twenty-one of the issue, in whom the estate is now vested. ^^ § 693. Cross Limitations. The principles governing cross limi- tations may be gathered in the main from the analogous principles applicable to cross remainders, already considered.^' If, after an estate has been limited in fee simple to two or more persons, it is provided that upon the happening of a certain event, or certain events, as upon the death of one or more of them without living is- sue, the share of the deceased shall pass to the other or others, the ulterior limitations cannot take effect as cross remainders, because the preceding estate is a fee simple, but are valid as cross limita- tions. '^^ But, as has been explained in connection with cross remainders, there is no necessity, even in a will, to imply cross limitations, since such an implication is never necessary in order to avoid an intes- tacy, as it sometimes is in case of cross remainders, and if permit- ted would result in di^'esting upon conjecture merely estates in fee simple already vested. '" Thus, upon a limitation "to A., B. and C. in fee, and if they (all) die without issue to Z. in fee," upon the death of A. without issue, his share would descend to his heirs, un- til B. and C. also die without issue, in which event Z. would take. There is no need, upon A.'s death without issue, to imply a cross limitation over to B. and C.°° "See 1 Tiffany, Real Prop. § 144, note 255. 66 Doe V. Selby, 2 B. & Cr. 926 ; 1 Tiffany, Real Prop. § 144, note 256. 6 7 Ante, § 640, et seq. 6 8 Ante, § 595; 1 Tiffany, Real Prop. § 145; 2 Jarman, Wills, 43. See An- derson V. Brown, 84 Md. 261, 35 Atl. 937. 5 "Ante, § 642 et seq.; 2 Min. Insts. 1077, 1078. 6 Ante, § 643. (550) Oh. 27] EXEC. LIM'n — RULE AGAINST PERPETUITIES. § 695 § 694. The Rule against Perpetuities — Necessity for the Rule. The necessity for the appHcation of some such rule as this to ex- ecutory limitations, and indeed to all executory contingent inter- ests, was observed when, upon the development of these new classes of future interests, it was found that, not iDeing subject to the checks and trammels imposed by the common law upon remainders, it might be easy to pile one contingent limitation upon another in in- definite succession, and thus for indefinite periods arrest the aliena- tion of lands and still more disastrously of chattels — a practice which might be of even more signal prejudice to the well-being of society than the statute of entails had been prior to Taltarum's Case." Suppose, for example, a testator to devise his land to the eldest son of the eldest son of the testator's eldest son. In the absence of a rule such as the rule against perpetuities, land might be tied up, as in this case, so as to be incapable of substantial use and en- joyment by any one for generations, until the' particular devisee designated by the testator, however remote, should come into exist- ence ; and although, in the meantime, the estate would vest in the testator's heirs, pending the arrival of such devisee, or other remote contingency, they would possess a defective title, and would be unable to aliene the land save within the limits of the contingency to which it is subject and for a totally inadequate price. The same result might follow upon a devise of an indefinite suc- cession of shifting limitations, as upon a devise to A. in fee, and upon a total failure of A.'s heirs at any future time to B. in fee, and upon a like failure of B.'s heirs to C. in fee, and so on down the alphabet. Any prospective purchaser of the land from A. or his heirs would stand confronted with the possibilit}- that A.'s heirs would at some time be exhausted, in which event B. would be en- titled to the land by title paramount to that of such purchaser. He would therefore either decline to purchase at all, or buy as a specu- lation, paying only a proportion of the true value. The result of such limitations, if permitted without check or re- straint, would be a tendency to tie up property and remove it for in- definite periods out of the channels of trade and commerce, to the great detriment of society. § 695. Same — The Precise Terms of the Rule. The considera- tions presented in the preceding section have induced the courts to establish the principle that, though such future interests may be limited to as many persons successively as the grantor or testator may 'think proper, yet they must all be in esse during the life of eiAnte, §§ 176, 644, et seq. ; 2 Min. Insts. 93, 271, 437. (551) § C95 EXEC. LIM'N RULE AGAINST PERPETUITIES. [Oh. 27 the taker of tl.e first estate; for then, as it was said, the candles are all lighted and consuming together, and the ultimate limitation is in reality only to that person who happens to survive the rest. More recently, this period has been somewhat prolonged by the addition thereto of the period of gestation and twenty-one years (the age at which one thus born after the termination of the lives in being might first validly aliene the property). Hence the canon established upon this svibject, as it exists in modern times, is that every contingent executory limitation, in or- der to be valid, shall be so limited that it must necessarily vest in interest, if at all, within a life or lives in being, ten months and twenty-one years thereafter; the period of gestation being allowed only in those cases where it is actually a factor. ^^ § 696. Same — The Period Prescribed by the Rule against Per- petuities. The precise period which has, after, some fluctuations but all looking to the same principle, been finally established is contained in the rule as stated in the last section, namely, that every contingent executory limitation, whether springing or shift- ing, whether of real or personal property, is void if it be not so limited that it must necessarily vest, if at all, within life or lives in being, ten months and twenty-one years thereafter, including the ten months in the estimate only where gestation is actually an element.'^" But if the time during which the contingent limitation is not to vest is not measured by lives at all, but merely by a definite or indefinite number of years, it is then necessary that the designated period for the vesting should not be postponed beyond twenty-one years, all reference to lives in being and the period of gestation being stricken from the rule in such case.^* § 697. Same— Meaning of "Life or Lives in Being." The "lives in being," which in part constitute the period during which a limi- 62 2 Mill. lasts. 437, 438; 2 Bl. Com. 174, note (21); Fearne, Rem. 420. note (f), 444, note (a) ; 2 Washburn, Real Prop. 3.57 et seq. ; 1 Jarman, Wills, 2.50 et seq. : Long v. Blackall, 7 T. R. 100 ; Cadell v. Palmer, 10 Bing. 14(!. 1 CI. & F. 372; Loyd v. Loyd, 102 Va. .527, 40 S. E. 687; Frazier v. Frazier, 2 Leigh (Va.) 642. 83 2 Min. Insts. 271, 4.38; 2 Washburn, Real Prop. 3.57; 2 Bl. Com. 174, note (21) ; 2 Th. Co. Lit. 578, note (A) ; Howard v. Duke of Norfolk, 2 Swanst. 454 ; Cadell v. Palmer, 10 Bing. 140, 1 CI. & F. 372 ; Long v. Blackall, 7 T. R. 100 ; Loyd v. Loyd, 102 Va. 527, 46 S. E. 0S7 ; Frazier v. Frazier, 2 Leigh (Va.) 642. See, also, Lawrence's Estate, 130 Pa. 3.54, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925, note; Barnum v. Barnum, 26 Md. 119, 90 Am. Dec. 101, note. 64 1 TifiCauy. Real Prop. § 154; Palmer v. Ilnlford, 4 Russ. 403; Rolfe & Rumford Asylum v. Lefebre, 69 N. H. 238, 45 Atl. 1087. (552) Ch. 27] EXEC. LIM'n RULE AGAINST PERPETUITIES. § 698 tation may remain contingent, may be indefinite in number, provid- ed "the candles are all lighted and consuming together," and provid- ed, further, that it is possible to ascertain as a fact the termination of the life of the last survivor of those whose lives are being counted in the estimate, so that it may be definitely determined when the period of twenty-one years thereafter is to commence."^ Nor need the persons whose lives are being counted have any connection whatever with the property disposed of; that is, they need take no estate or interest therein, nor need they be relatives of the bene- ficiaries."" A life is "in being," within the rule, even though the person be not yet born, if he be en ventre sa mere at the date of the creation of the interest, as in the case of a limitation to the child of the testator's posthumous son ; such son being regarded as in being at the date of the creation of the interest, that is, at the testator's death. Here the period of gestation is prefixed to the life, so as to constitute it in its entirety a life in being.'''' But the period of gestation, instead of being prefixed to the life to make it a life in being, may by the terms of the rule be added at the end of the life in being, where the circumstances call for it. Thus, upon a limitation to a grandson (unborn) of the testator who shall attain twenty-one years, the life of the testator's son is the life in being, and upon the latter's death his son may be en ventre sa mere. The limitation is valid, because if it vests at all it must necessarily vest within a life in being (the testator's son), ten months (the grandson en ventre sa mere) and twenty-one years thereafter. °* Hence it may in particular instances become necessary to estimate in the measurement of the time two periods of. gestation — one at the beginning of the life in being and the other at the end thereof. Thus a devise to the testator's grandchildren who attain the age of twenty-one is not too remote, though the only grandchild who at- tains such age is a posthumous son of a posthumous son of the testator."^ § 698. Same — Mere Improbability that Limitation will Take Ef- fect beyond the Period Prescribed Immaterial. The requirement 65 2 Min. Insts. 438; 1 Tiffany, Real Prop. § 154. 6« 1 Tiffany, Real Prop. § 154; Thellusson v. Woodford, 11 Ves. 112; Cadell V. Palmer, 1 CI. & P. 372. See Scatterwood v. Edge, 1 Salk. 220; Low V. Burron, 3 P. Wms. 262. 6 7 Long V. Blackall, T T. R. 100; Thellusson v. Woodford, 11 Ves. 112. 6 8 Cadell V. Palmer, 1 CI. & F. 372. 6«1 Tiffany, Real Prop. § 154; Gray, Perpet. § 221; Thellusson v. Wood- ford, 11 Ves. 112. (553) § 698 EXEC. LIm'n — RULE AGAINST PERPETUITIES. [Ch. 27 that the contingent executory interest must necessarily vest in right, if it vests at all, within the period prescribed by the rule, is an abso- lute requirement, and knows no exception. The mere improbability that the vesting will occur after that period, how great soever that improbability may appear, will not make the limitation good. The rule against perpetuities requires that it be legally impossible that the event upon which the future limitation is to vest in interest be postponed beyond life or lives in being, and ten months and twen- ty-one years. ^° Thus a devise or conveyance to such children of a living person as may be living at a time too remote under the rule is void, though the age of the living person be such (say eighty years) as to render it practically (though not legally) impossible that children should be born to him or her, other than those already living. ^^ On the other hand, the possibility that the limitation will never vest does not prevent it from being a valid disposition under the rule, provided that, if it vests at all, it must vest within the pre- scribed period; and where there are several of such limitations, the fact that some of them may never vest will not in general affect the validity of those that do vest.^^ § 699. Same — Rule Applies Only to Contingent Interests. It is to be especially observed that the rule against perpetuities is not aimed against a long deferred vesting of the possession, but against the indefinite postponement of the vesting in right ; it being the lat- ter, rather than the former, that materially interferes with the alien- ability of the property. The rule therefore applies only to contin- gent interests ; that is, interests either limited to persons not ascer- tained or not in being, or limited upon the occurrence of an uncer- tain event (a condition precedent) .^^ Hence the rule has no appli- cation where the limitation must take effect, if at all, immediately 7 Gray, Perpet. § 214; Lawrence v. Smith, 163 111. 149, 45 N. E. 259. 71 1 Tiffany, Real Prop. § 154 ; Gray, Perpet. §§ 215, 215a ; Jee v. Audley, 1 Cox, 324. 72Ante, § 839; Loyd. v. Loyd, 102 Va. 527, 4G S. E. 68T ; Lawrence's Es- tate, 136 Pa. 354, 20 Atl. 521, 11 L. R. A. 85, 20 Am. St. Rep. 925 ; Heald v. Heald, 56 Md. 300; Goldsborough v. Martin, 41 Md. 488; Saxtou v. Webber, 83 Wis. 617, 53 N. W. 905, 20 L. R. A. 509 ; Gore v. Gore, 2 P. Wms. 28. 73 Gray, Perpet. § 205 et seq. ; Loyd v. Loyd, 102 Va. 528, 46 S. E. 687; Sioux City Terminal Railroad & Wareliouse Co. v. Trust Co. of North America, 27 C. C. A. 73, 82 Fed. 124; Howe v. Morse, 174 Mass. 491, 55 N. E. 213 ; Johnston's Estate, 185 Pa. 179, 39 Atl. 879, 64 Am. St. Rep. 621 ; Stout V. Stout, 44 N. J. Eq. 479, 15 Atl. 843; Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635 ; Owsley v. Harrison, 190 111. 235, 60 N. E. 89 ; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434. (554) Ch. 27] EXEC. LIM'n EDLB AGAINST PERPETUITIES. § 701 Upon the death of life tenants in whom the previous estate is vest- ed.'^ And the fact that the right to the possession or enjoyment of a vested interest is deferred to a remote period does not bring it with- in the operation of the rule. Hence it is that a vested remainder aft- er an estate tail or after a lease for 999 years is valid; ^^ and so it is in case of a vested springing limitation to arise after a remote period. § 700. Same — Considerations Leading to the Adoption of the Particular Period Prescribed by the Rule. This particular period was adapted by analogy to the utmost period during which, at com- mon law, land could be kept inalienable by way of remainder. Thus, in marriage settlements (where the effort is to preserve the estate as long as possible within the limits of one or two families), the estate may be limited to H. and W. during their joint lives, re- mainder to the survivor for life, remainder to the first and other sons of the marriage successively in tail, remainder to the daughters in tail, remainder in fee to H.'s right heirs, and until the first person to whom a remainder in tail is limited comes of age, the land is in- capable of being aliened in fee simple. And as that person may, at the death of H., be en ventre sa mere, the time in such case would be prolonged for the term of gestation, making the utmost period of inalienability of the inheritance at common law one or more lives in being, the limit of gestation, and twenty-one years afterwards, which has, therefore, for more than two centuries constituted the "rule against perpetuities" in respect to lands, and a fortiori as to chattels.'^ ° § 701. Same — The Time from Which the Period is to be Esti- mated. The rule is to be applied — that is, the measurement of the period prescribed by the rule is to commence — as of the time when the future contingent interest is created. In the case of a deed, this would be the date of the delivery of the deed; and in case of a will, the date of the testator's death. If the limitation, as measured by the rule, is then too remote, no subsequent change of circumstances, by which it would thenceforth TiLoyd V. Loyd, 102 Va. 528, 46 S. E. 687. 7 5 1 Tiffany, Keal Prop. § 155; Gray, Perpet. § 205 et seq. ; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Loxing v. Blake, 98 Mass. 253; Sid- dall's Estate, 180 Pa. 127, 36 Atl. 570 ; Gates v. Seibert, 157 Mo. 254, 57 S. W. 1065, 80 Am. St. Rep. 625; Madison v. Larmon, 170 111. 65, 48 N. B. 556, 02 Am. St. Rep. 356. T6 2 Min. Insts. 438, 439; 2 Bl. Com. 174, note (21); Fearne, Rem. 444, note (a); Howard v. I>uke of Norfolk, 2 Swanst. 454; Long v. Blackall, 7 T, R. 101 ; Pleasants v. Pleasants, 2 Call (Va.) 319, 336. (555) § 701 EXEC. LIM'n— EULE AGAINST PERPETUITIES. [Oh. 27 become impossible that the limitation should vest later than a life or lives in being and ten months and twenty-one years thereafter, will render the limitation valid. It, is either valid for all time or void for all time from the moment of its creation. ''^ Thus, a limitation to D. in fee, after a total failure of the heirs male of C.'s body, is void for remoteness, since the failure of C.'s heirs male, viewed at the time of the creation of the estate, may be postponed for indefinite generations, and though, as a matter of fact, it subsequently transpires that C. never has any heirs of the body, this will not make good the limitation to D., which was too remote at its creation.'''' So, also, in a will, the state of affairs, as they appear to the testa- tor at the time of the execution of the will, plays no part in the ap- plication of the rule against perpetuities, but only the condition of affairs existing at the testator's death, at which time the limitations tmder the will are first created.^' Hence, in case of a devise "after A.'s death to such children of his as attain the age of twenty-five," the limitation on its face is void for remoteness, since a child not yet in being might be the only one to reach twenty-five, and he might not do so within a life in being (A.'s life), ten months and twenty-one j^ears thereafter. Y,et, before the testator's death, the circumstances may be so altered, as by the death of A., that if the limitation be viewed (as it must be) as at the time of the testator's death it must necessarily vest, if at all, within the period prescribed by the rule; for since upon A.'s death before the testator there can be no children of his save those already in being (or en ventre sa mere), the limitation must vest, if at all, within lives in being.*" § 702. Same — Effect of Remoteness of Limitation. A limita- tion which is too remote is itself absolutely void, leaving any pre- vious interests, intended to be abridged by the void limitation, un- affected thereby, and therefore rendered alienable. Thus, in case of a devise to A. in fee simple, but if there be at any future time a failure of A.'s heirs then over to B. in fee simple, the limitation to B. being void for remoteness, A. takes an indefeasible fee sim- ple, which he may aliene freely, without regard to the condition attached.*^ 7T 2 Mill. Insts. 447; Gray, Perpet. § 231; Cattlin v. Brown, 11 Hare 372; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1013; Hall v. Hall, 123 Mass. 120. 78 2 Mln. Insts. 447; Fearne, Rem. 524. ■79 1 Tiffany, Real Prop. § 154; Gray, Perpet. § 231; Brown v. Brown, 86 Tenn. 277, 6 S. W. 869, 7 S. W. 640, and cases cited supra. 80 1 Tiffany, Real Prop. § 154; Southern v. Wallastou, 16 Beav. 276. 81 Gray, Perpet. §§ 247, 250; Proprietors of Church In Brattle Square v. Orant, 3 Gray (Mass.) 142, 63 Am. Dec. 725; Howe v. Hodge, 152 111. 252, (556) Ch. 27] EXEC. LIm'n — RULE AGAINST PERPETUITIES. § 703 But if there be ulterior limitations contingent upon the termina- tion of that which is too remote, which themselves must necessarily vest, if at all, within life or lives in being and ten months and twen- ty-one years thereafter, upon the same principles as are applicable in a corresponding case of contingent remainders following upon es- tates that never vest,*- such ulterior limitations are in general to be upheld,**^ especially if the ulterior limitation is not intended to take efifect in derogation of the remote limitation, but to take effect in case that shall never vest.** § 703. Same — Severability of the Contingencies. A court is not at liberty to separate a limitation which is too remote into two lim- itations — one to take effect in case the contingency occurs within the period, and the other in case it occurs beyond the period — uphold- ing it as to the former, and invalidating it as to the latter. If the grantor or testator has made it one single limitation, it must stand or fall as a single limitation.*^ Thus, upon a devise to A. in fee, but if he shall leave no son who shall have reached the age of twenty-five then to B. in fee, the limitation to B. is absolutely void, notwithstanding it might be possible to split the contingency into two parts, as follows : (1) In case A. has no son at all ; and (2) in case he has sons that shall not have reached the age of twenty-five at A.'s death ; and though the first of these contingencies would not be too remote, since it must be definitely determined within A.'s lifetime or twenty-one years thereafter whether he left any sons. But the court cannot thus dissect the contingency created by the testator into its com- ponent parts and make of each a separate contingency.*^ While the court cannot do this, the testator or grantor can do it himself, and, when he does so, the limitation over may be good upon the happening of one contingency, while void as to the other. Thus if the above-mentioned devise should read "to A. in fee, but if he leaves no son, or if he leaves no son over twenty-five, then to B. 38 N. E. 1083 ; Nevitt v. Woodburn, 190 111. 283, 60 N. E. 500 ; Watkins v. Quarles, 23 Ark. 179. 8 2 Ante, § 705 et seq. 83 1 Tiffany, Real Prop. § 157 ; Gray, Perpet. § 251 et seq. ; Walker v. Lewis, 90 Va. 582, 19 S. E. 258. But see Monypepny v. Bering, 2 De G., M. & G. 145. 8* Walker v. Lewis, 90 Va. 582, 19 S. E. 258. «Bl Tiffany, Real Prop. § 157; Gray, Perpet. § 331; Eldred v. Meek, 183 111. 26, 55 N. B. 536, 75 Am. St. Rep. 86; Post v. Rohrback, 142 III. 600, 32 N. E. 687. See Johnston's Estate, 385 Pa. 179, 39 Atl. 879, 64 Am. St. Rep. 634, note. 8 8 See authorities supra. (557) § 704 EXEC. LIM'n RULE AGAINST PERPETUITIES. [Oh. 27 in fee," the limitation to B. in the first alternative is good, while that in the second is void for remoteness. ^^ , § 704. Same — Instances of Application of Rule against Per- petuities to Springing Limitations. Instances of the application of the rule to contingent springing limitations are quite common. Thus, a devise to such of the sons of A. (who is living at tes- tator's death) as shall take holy orders is void for remoteness, since a son of A., should he take orders at all, may not do so within twenty-one years after the death of A. (life in being). ^^ So, a devise to the first son of A. who attains the age of twenty-five (A. having no son of that age at the testator's death) is too remote and void, since no son of A. need necessarily reach that age during A.'s life, or within twenty-one years after his death. ^'' And so, while a devise to the first son of A. who attains the age of twenty-one is valid, since he must attain that age, if at all, dur- ing A.'s lifetime (life in being) or in ten months (gestation pe- riod) and twenty-one years thereafter,"" yet if the devise be to the first son of A. who should attain the age of twenty-two, the limi- tation is void for remoteness, since that age might be reached only by a son born after A.'s death, in which case the vesting would be postponed bej^ond the ten months and twenty-one years after the death of A." Again, a devise to such of the testator's grandchildren as shall attain the age of twenty-one is not too remote, for, if the testator has no children living at his death or born thereafter, the grand- children themselves constitute the hves in being; and if the testa- tor leave children, they constitute the lives in being, and there could be no grandchild who would not become twenty-one within a life or lives in being and ten months and twenty-one years there- after. But if the age limit were twenty-two, instead of twenty-one, as supposed, the limitation to the grandchildren would be void for remoteness, in case the grandchildren do not themselves constitute the lives in being. "^ 8 7 1 Tiffany, Real Prop. § 157; 2 Redfield, Wills, 573; Longhead v. Phelps, 2 W. Bl. 704; Leake v. Robiuson, 2 Meriv. 363; Miles v. Harford, 12 Ch, Div. 691; Walker v. Lewis, 90 Va. 582, 19 S. E. 258; Halsey v. Goddard (C. C.) 86 Fed. 25 ; Perkins v. Fisher, 8 C. C. A. 270, 59 Fed. 801 ; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Jackson v. Phillips, 14 Allen (Mass.) o72. 8 8 Proctor V. Bishop of Bath, 2 Bl. 358. «9 Abbiss V. Burney, 17 Ch. Div. 211. «o Woodruff V. Pleasants, 81 Va. 37. 91 Otterback v. Bohrer, 87 Va. 548, 12 S. E. 1013 ; Woodruff v. Pleasants 81 Va. 37. 8 2 Leake v. Robinson, 2 Meriv. 363; In re Moseley'^ Trusts, L. R. U Eq (558) Ch. 27] EXEC. LIM'n — RULE AGAINST PERPETUITIES. § 705 It should be noted, in this connection, that wherever the con- tingent limitation is to a class, the vesting of the limitations, as to all, being postponed beyond the period prescribed by the rule, the limitation is void as to all the members of the class. Thus, in case of a devise to such of the testator's grandchildren as shall thereafter reach the age of twenty-five (the testator having chil- dren living at his death), since, as viewed at the testator's death, it cannot be told which, if any, of the grandchildren will reach the required age within the prescribed period, the limitation is void as to all the members of the class, even as to those who become twenty-five within the period."^ But if the gifts to the members of the class are independent gifts to each, the gift to one member thereof ma}' be valid, while that to another may be void for re- moteness.'* Similar principles prevail also in the case of limitations made in contemplation of an act of the legislature, or the acquisition of a charter, so as to make the disposition designed legal and valid. Such limitations, to be valid, must be accornpanied by some provi- sion requiring them to take effect within the period prescribed. Thus, if the act is to redound to the personal benefit of persons in esse, or if it is to be procured by living persons designated, as the testator's executors, or "within a reasonable time," or "as soon as possible," the contingency is not too remote, and the limitation is valid."^ § 705. Same — Instances of Application of Rule to Shifting or Conditional Limitations. — 1. Limitations Shifting upon an Indefi- nite Failure of Heirs, Heirs of the Body, Issue, etc. It is very clear that any limitation which is only to take effect upon a failure 499; Pearks v. Moseley, 5 App. Cas. 714; Otterback v. Bohrer, 87 Va. 548. 12 S. E. 1013; Woodruff v. Pleasants, 81 Va. 37; Gerber's Estate, 196 Pa. 366, 46 Atl. 497 ; Eldred v. Meek, 183 111. 26, 55 N. E. 536, 75 Am. St. Rep. 86. 93 1 Tiffany, Real Prop. § 157 ; Gray, Perjjet. § 369 et seq. ; 1 Jarman, WUls, 229 ; Pearks v. Moseley, 5 App. Cas. 714 ; Sears v. Putnam, 102 Mass. 5 ; Coggins' Appeal, 124 Pa. 10, 16 Atl. 579, 10 Am. St. Kep. 565 ; Eldred v. Meek, 183 111. 26, 55 N. E. 536, 75 Am. St. Rep. 86. 8*1 Tiffany, Real Prop. § 157; Gray, Perpet. § 389 et seq.; 1 Jarman, Wills, 229 ; Catlin v. Brown, 11 Hare, 372 ; Storrs v. Benbow, 3 De 6., M. & G. 390 ; Albert v. Albert, 68 Md. 352, 12 Atl. 11 ; Lowry v. Muldrow, 8 Rich. Eq. (S. C.) 241 ; Hills v. Simonds, 125 Mass. 536 ; Dorr v. Lovering, 147 Mass. 530, 18 N. E. 412. See Loyd v. Loyd, 102 Va. 527, 46 S. B. 687. 86 2 Min. Insts. 444; Porter's Case, 1 Co. 24; Pleasants v. Pleasants, 2 Call (Va.) 319, 337; Inglis v. Trustees of Sailors', Snug Harbor, 3 Pet. 115 et seq., 7 L. Ed. 617 ; Literary Fund v. Dawson, 10 Leigh (Va.) 152, 1 Rob. (Va.) 418 ' 419 • Kinnaird v. Miller, 25 Grat. (Va.) 107. See Spring Garden Bank v. Hurlings Lumber Co., 32 W. Va. 357, 9 S. B. 243, 3 L. R. A. 583. (559) § 706 EXEC. LIM'n — RULE AGAINST PERPETUITIES. [Oh. 27 of one's heirs, or heirs of the body, or issue, or descendants, etc., at any period whatsoever, may, in the event, be postponed beyond the prescribed term of a hfe or Hves in being, and twenty-one years and a few months, and will, therefore, be void for remoteness. Thus, where lands are given by will or grant to A. and his heirs, and upon the failure of his heirs to Z. in fee, one has no difficulty in perceiving that the limitation to Z. is inconsistent with the rule against perpetuities, and is invalid. The mind easily accepts the same conclusion where the limitation to Z. is to take effect upon the failure of the heirs of A.'s body, or of A.'s issue, or of A.'s descendants, since any of those events may, in the course of na- ture, be postponed for many generations, or may never occur at all."" § 706. Same— 2. Failtire of Heirs, etc., at a Definite Time, Not Too Remote. If the failure of heirs, heirs of the body, issue, de- scendants, etc., upon which the limitation is to shift over to an- other, must by the terms of the limitation occur, if at all, at a time not too remote, as at the time of the death of the first taker, or at the termination of other lives in being, the rule against perpetuities is not violated, and the subsequent limitation is valid. . Thus, upon a devise to A. in fee, but upon a failure of his heirs (or heirs of the body or issue, etc.), at his death, then to Z. in fee, the limitation to Z. is not too remote and is valid. "^ So, also, though the contingency upon which the estate is to shift over to an- other be apparently an indefinite failure of heirs, etc., yet if the second taker is given only an estate for his life, so that, if it vests at all, it must vest in his lifetime (life in being), the rule against perpetuities is not violated, and the second limitation is valid."* And it will be remembered that at common law, where an estate is limited without words of inheritance, the grantee takes only a life estate."" § 707. Same — 3. Limitations upon a Dying without Heirs, Heirs of the Body, Issue, etc. If the limitation be to A. in fee, but if A. die without heirs, issue, etc., then to Z. in fee, one would think it the more legitimate construction (Mr. Hargrave calls it "6 2 Mill. Insts. 439. 9J 1 Januan, ^Yills, S24 ; Pells v. Browu, Cro. (Jac.) 590; Britton v. Thorn- to-.i, 112 U. S. 526, 5 Sup. Ct. 291, 28 L. Ed. 816; Dorr y. Joliuson, 170 Mass. ."i40, 40 N. E. 919; Miller's Estate, 145 Pa. 5G1, 22 Atl. 1044; Newsoru v. Molesapple, 101 Ala. 682, 15 South. 644 : Weybriglit v. Powell, 86 Md. 573, 39 Atl. 421 ; MuUreed v. Clark, 110 Mich. 229, 68 N. W. 138, 989. 98 2 Min. Insts. 441 ; 3 Lom. Dig. 419 ; Fearne, Rein. 4S8 ; 2 Th. Co. Lit. 646, note (C) ; Doe v. Lyde, 1 T. E. 598. ""Ante, § 140. (5G0) Ch. 27] EXEC. LIm'n POWER OF DISPOSITION IN FIEST TAKER. § 708 the vulgar, in contradistinction to the technical, construction) that the limitation over to Z. was to occur in case A. had no heirs at the time of his death, in which event it would be good, and would take effect in possession in case it turned out that A. did have no heirs at his decease.^ But these and similar phrases (e. g., "if he die without heirs," or "without heirs of his body," or "without issue," or "without descendants ;" or "upon his dying without heirs," etc. ; or "leav- ing no heirs," etc.) have long been settled (unless there be other words of qualification) to refer to a general and indefinite failure of heirs, etc., at any future time. So that every executory limita- tion, limited to take effect on such words, is at common law void. Nor is it material in such cases how the fact actually turns out. The possibility that the event may, in point of time, exceed the limits allowed, vitiates the limitation ab initio, and also defeats all the limitations that may succeed it, although not themselves too remote.^ The generality of the words "heirs," or "heirs of the body," etc., may be restrained to the period prescribed, by any other words sufficient for the purpose, and then the devise over will be good. Thus, if the limitation were to A. in fee simple, but if he die with- out heirs living at his death (or leaving no heirs behind him) to Z. in fee, the failure of heirs would be tied up and restricted to the death of A., and so the limitation to Z. would be good. But the word "lend" applied to the first taker, or a direction that the es- tate limited over upon the failure of issue of the first taker, shall, in the event of his leaving issue, be distributable to such issue as he may think fit, will not confine the failure of issue within the prescribed limits, and consequently will not save the subsequent limitation from being too remote, and, therefore, void.^ This common law rule of construction has been reversed in Eng- land and in a majority of the states by statute, so that these expres- sions we have been considering are made to import, prima facie, a definite failure of issue or heirs of the person named; that is, at \the time of his death.* § 708. An Ulterior Limitation is Void, if Full Power of Dis- position of the Property be Expressly Given to the First Taker. lAnte, § 706 ; 2 Min. .Insts. 440 ; Hargrave, Law Tracts, 519. 2 2 Min. Insts. 440; Hargrave, Law Tracts, 519; 2 Th. Co. Lit. 646, note (C) ; Beau'clerk v. Dormer, 2 Atk. 308 ; Doe v. Fonnereau, 2 Dougl. 487 ; Griffitli V. Tliomson, 1 Lelgli (Va.) 321. sAnte, § 706; 2 Min. Insts. 440; Porter v. Bradley, 3 T. E. 143; Eoe v. Jeffery, 7 T. E. 589 ; Oallis v. Kemp, 11 Grat. (Va.) 85. * 2 Eeeves, Eeal Prop. § 955. MiNOB & W.Eeai, Pbop.— 36 (561) § 708 EXEC. LIm'n POWER OF DISPOSITION IN FIRST TAKER. [Ch. 27 Upon a principle almost the reverse of that animating the rule against perpetuities, but with a like result, namely, the invalidat- ing of the ulterior limitation, it is an established rule that where the full and absolute power to dispose of the property is given to the first taker, and only what is left undisposed of by him is to go to the second taker, the second limitation is void (1) for repug- nancy, and (2) because of the uncertainty of the property to go to the second taker. In holding the ulterior limitation thus void for repugnancy, the courts proceed upon the theory that a true conditional limitation, from its very nature, must hamper and trammel the first taker's power of alienation, and if that power is expressly given the first taker, unhampered and untrammeled, in order to carry it into effect, the subsequent limitation must be declared void. The two' inten- tions of the grantor or testator are inconsistent and self-contradic- tory, and one or the other must give way.^ Thus, upon a devise to A. and the heirs of his body, and if he should die leaving no heirs of his body then living so much of de- visor's estate as A. shall be possessed of at his death to G., it is uncertain whether anything will remain to be the subject of the limitation over, which for that reason is void. And it is void also for repugnancy to the estate of the first taker, over which either expressly or by construction A. is given the power of dis- position." § 709. If One Limitation in a Conveyance be Executory, All Subsequent Ones are in General Executory Limitations Also. An executory limitation may confer either an estate in fee simple or a less estate. On every estate conferred by an executory limitation, another executory limitation may be limited, and if the estate con- ferred by an executory limitation be an estate for life or for years, it may be followed by a quasi remainder ; but whilst the executory estate, after which the remainder is to arise, is in suspense, it is not properly a remainder, but an executory limitation, which is to 2 Min. Insts. 443, 444; 1 Tiffauy, Real Prop. § 140; Howard v. Oarusi, 109 U. S. 725, 3 Sup. Ct. .575, 27 L. Ed. lOSO ; Fisher v. Wister, 154 Pa. 65, .25 Atl. 1009; Combs v. Combs, 07 JId. 11, S Atl. 757, 1 Am. St. Rep. 359; ;Clay V. Chenault, 55 S. W. 729, 21 Ky. Law Rep. 1485, and cases cited infra. 6 2 Min. Insts. 444; 4 Kent, Com. 270; 1 Roper, Legacies, 642; Atty. Gen. V. Hall, Fltzg. 314, 8 Vln. Abr. 103, pi. 50; Miller v. Moore, 9 Vin. Abr. 248, pi. 21 ; Bull v. Kingston, 1 Meriv. 314 ; Shermer v. Sbermer, 1 Wash. (Va.) 266, 1 Am. Dec. 460. See Howard v. Carusi, 109 U. S. 725. 3 Sup. Ct. 575, 27 L. Ed. 1089; Van Home v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771, 53 Am. St. Rep. 160 ; Foster v. Smith, 156 Mass. 879, 31 N. E. 291 ; Hoxsey v. Hoxsey, 37 N. J. Eq. 21 ; Kelley v. Meins, 135 Mass. 231. (562) Gh. 27] EXEC, lim'n — all executory if one executout. § 709 be converted into a remainder on a particular event. Thus, if land be devised to A. and his heirs, and if A. should not leave issue living at his decease to B. for life, and after B.'s decease to C. in fee, C. would have during A.'s life (whilst the contingency is in suspense), ■ only an executory fee ; but if A. should die without issue in B.'s lifetime, C. would take a vested remainder, and an estate in fee simple in possession, if A. should survive B. and then die without issue.'' So, upon a devise to A. for life after the death of B., remainder after A.'s death to C. in fee, A.'s estate is a springing limitation until the death of B., and so is C.'s estate, since there is no par- ticular estate in possession to support either as a remainder. But upon B.'s death A.'s estate of freehold comes into possession, and C.'s springing limitation then becomes a vested remainder. The general proposition is founded on the very nature of ex- ecutory limitations, which, it will be remembered, are either limi- tations of freeholds to commence in futuro, without any preced- ing estate, or of estates to take the place of fees already vested. No estate following such a limitation, therefore, can be a remainder — not in the first instance, because a remainder must, by the defini- tion thereof, be preceded by a particular estate in possession ; nor in the second, because no remainder can be limited upon a vested fee simple.^ '. Thus, it is seen that while no limitation, once valid as a re- mainder, can ever thereafter take effect as an executory limita- tion,^ the converse of the proposition is by no means true; it frequently happening that a limitation once taking effect as an executory limitation, either springing or shifting, may at a later period, under altered conditions, become a remainder. Instances of this sort of transformation have already appeared in the pre- ceding paragraphs. Another illustration of it may be seen in Brownsword v. Edwards,^" which was a case of a devise to A. and his heirs in trust to receive the rents and profits until B. should attain twenty-one, and if B. should attain twenty-one or have is- sue then to B. and the heirs of his body, but if B. should happen to die before twenty-one "and" (which was read as if it were "or") without issue, remainder over to S., etc., the inheritance, being vest- ed in A., the trustee, subject to be divested in case B. attained the age of twenty-one, or had issue, made the subsequent limitations at first executory; but when B. had satisfied the contingency, as he did by attaining the age of twenty-one, whereby the land vested T 2 Min. Insts. 445 ; Fearne, Rem. 503, note (g). ©Ante, § 674. 8 2 Min. Insts. 445 ; Fearne, Rem. 504. ao 2 Ves. Sr. 247. (563) § 709 EXEC. LIM'N ALL EXECUTORY IP ONE EXECUTOEY, [Oh. 27 in him in possession for an estate tail, the limitation to S. became a remainder.^^ The fact that the subsequent limitation is executory does not necessarily mean that it is contingent. It may be so limited as from the beginning to be certain of taking effect (saving only the possibility of its expiring before the former -estate vests or fails), either in default of the foregoing estate taking effect at all, or by way of remainder after it, if it should take effect." Thus, in South- by V. Stonehouse,^^ where the devise was in substance of the profits of the lands to S. for life, and after his death of the lands themselves to the testatrix's children in tail, and in default of issue of the tes- tatrix to J. H. in fee, and the testatrix died leaving an infant daugh- ter, who shortly afterwards died, the limitation to the children in tail, without a particular estate going before, was executory, and thus made the interest of J. H. also executory, but not contingent. Had the testatrix left no children, he would have taken a vested in- terest expectant on S.'s death, as in the event that happened he took a vested interest, by way of remainder, after the estate tail of the daughter.^* And it is necessary, furthermore, to observe that, when the first limitation is a fee, since those following cannot be remainders, they are liable at common law to be defeated by the remoteness of the contingency whereon they are limited, supposing that to be the in- definite failure of issue. § 710. Any Number of Executory Limitations, Even of the Fee Simple, may Succeed One Another, if Not Too Remote. While it is true as a general proposition that any number of executory limi- tations may succeed one another in a conveyance, and they will all be valid, if not too remote, a qualification must be noted in that, if one of the fees chance to vest in right, subject to no condition which may divest it, all the rest are defeated. Thus, in case of a devise to A. and his heirs, and if he die without a son living at his death then in fee simple to the first son of B. who attains twenty- one, and if he has no son then in fee simple to his first daughter who lives to be twenty-one, if no daughter then in fee simple to C, all the limitations are good; but if that to B.'s son vests in right, it defeats all that follow, etc.^° § 711. Limitations must Not, upon a Future Contingency, Cease as to Part, and Vest and Revest. This doctrine seems to be found- ed in the main upon considerations of convenience and policy. The" 112 Min. Insts. 445, 446; Fearne, Rem. 506. is 2 Ves. Sr. 613. 12 2 Mm. Insts. 446; Fearne, Rem. 507. »*2 Min. Insts. 44a 16 2 Min. Insts. 447; Fearne, Rem. 514, note (h). (564) Ch. 27] EXEC. LIM'n — TO PERSON NOT IN ESSE. § 712 uncertainty of ownership which would result from such partially divested limitations, and the consequent difficulty of determining against whom proceedings should be had touching the title to lands so situated and to subject them to debts, as well as other inconven- iences, constitute very sufficient reasons for adhering to the prin- ciple, which is a very ancient one, although its application to ex- ecutory limitations is, of course, modern, as the limitations them- selves are. The doctrine has always existed in respect to condi- tions and common-law limitations, as to which it has ever been a maxim that they must defeat the whole estate, and cannot deter- mine it for a part only. Thus, a condition, annexed to a feoffment in fee, that if the feoffee die, his heir being under age, his estate shall cease during the minority of the heir, is utterly void ; so, also, is a condition that an estate tail shall, upon a contingency, cease as if tenant in tail were dead, which, if it had any effect, would only suspend it during the tenant's life, to revest in his issue ; and so, in like manner, it is with executory limitations. An attempt to suspend an estate during the infancy of the party succeeding to it, or upon any other contingency, and again to revest it, is fu- tile, and the limitation is void.^^ A rent, common, or other incorporeal hereditament, newly creat- ed, may be limited to cease for a time, and again to revest, as with the proviso that if the grantee die, his heir within age, the terre- tenant, should, during the minority, be quit of the rent. The rea- son seems to be that, as it is a newly created subject, no adverse claim to it can exist, for the 9ame latitude is not allowed in limita- tions of rents, etc., previously existing.^^ § 712. Limitation to Person Not in Esse may be Valid, if Not Too Remote. In the infancy of executory limitations before their limits were definitely ascertained, and whilst yet they were scarce- ly distinguished from limitations in conveyances at common law, there was sometirtles, naturally enough, an absiird rigor of con- struction resorted to, in order to guard against too great a latitude in what was justly esteemed a violent inndvation upon the old common law. Amongst the iristances of this excessive jealousy, none is more rernarkable than the principle, which was at one time asserted, that whilst a limitation to a nonexisting person per verba de futuro — that is, when the party came into being — was valid, yet 16 2 Min. Insts. 448; Fearne, Rem. 526, 530, note (r), 274, 275; Corbet'.s Case, 1 Co. 87a, 87b; Jermyn v. Arscot, cited 1 Co. 85a; Lade v. Halford, 3 Burr. 1416, 1 W. Bl. 428, 2 Ambl. 479. 17 2 Min. Insts. 448 ; Fearne, Rem. 529 ; Corbet's Case, 1 Co. 87a ; Kempe's Case, 1 Ld. Raym. 52. (565) § 712 EXEC. LIM'N- — TO PSKSON NOT IN ESSE. [Ch. 27 if the limitation were per verba de present! — that is, mentioning the party as a person in present existence — it was void. Upon this principle, it was insisted that a devise to an infant en ventre sa mere could not be sustained, although it was admitted that, if the limitation were to the child when born, it would be unquestionably- good. At present, however, this needless distinction between lim- itations to nonexisting persons, per verba de presenti, and per ver- ba de futuro, is very little regarded and is allowed to affect those cases only where there is not the least circumstance from which to collect the testator's or grantor's intention of anything else than an immediate limitation to take effect in presenti.^ ^ A limitation to a child en ventre sa mere, although by words de presenti, is now subject to no other doubt than the uncertainty of the description; and there can never be any uncertainty if it be described as the child of which such a woman is enceinte (with- out reference to the paternity), even though it be illegitimate. If, however, it be a bastard, it cannot be described as the child of such a man, since that can never be certain, although, if described as the child of the mother, it does not vitiate the description that the limitation assumes such an one to be the father.^' But if the motive of the gift is the belief that the bastard is the son of such a man, and not the fact that he is so, the gift will gen- erally stand ; or where it is evidently the intent of the testator or grantor to give the property to that individual in any event (the cause of the gift not being that a particular person is his father), the mere description of the bastard as the child of such a man, his identity being otherwise ascertained, will not affect the validity of the gift.^o But in no case, it is said, upon principles of public policy, can a limitation be validly made to an illegitimate child, neither born, nor in ventre matris — that is, not yet begotten — ^when the will or deed is executed, so that, although such a child be afterwards born, yet it cannot take.^^ An illustration of this common-law distinction between present and future words might perhaps arise even to-day. Thus, upon a devise tO a society, now in existence, but incapable of taking the property devised, the devise would be void, nor would it in gen- 18 2 Min. Insts. 448, 449; Fearne, Kern. 553 et seq. ; Goodright v. Cornish, Salk. 226 ; Doe v. Carleton, 1 WIls. 225. i» 2 Min. Insts. 449. 20 1 Min. Insts. 446. 212 Min. Insts. 449; 2 Lom. Ex'rs, 35; Earle v. Wilson, 17 Ves. 528; Gordon v. Gordon, 1 Meriv. 150 et seq. ; Meltram v. Devon, 1 P. Wms. 529. (566) Ch. 27] EXEC. LIM'n DISPOSITION PEIOE TO VESTING. § 714 eral become valid by the subsequent acquisition of the capacity to take. But a devise to such society, when it shall become capable of taking, would be good as an executory devise, if not too-re- mote.^^ § 713. Disposition of Title to Property Devised, Pending the Contingency — 1. Lands. It is a rule that wherever there is an ex- ecutory devise of real estate, and the freehold is not in the mean- time disposed of, the freehold and inheritance descend to the tes- tator's heirs at law. And so, where a preceding estate is limited, with an executory devise over of the land, the intermediate profits between the determination of the first estate and the vesting of the limitation over will go to the heir at law, if not otherwise dis- posed of. Indeed, every interest and all profits, not disposed of, out of real estate, pass to the heir, and that not by the will of the testator, but by the act of the law. Hence, in case of a devise to A. in fee, to commence six months after testator's death, during those s^x months the estate descends to and continues in the heirs ; and hence, also, where a testator devised lands to B. for life, remain- der to B.'s sons successively, remainder to the unborn sons of C, and provision was made for the disposition of the rents and profits dur- ing the minorities of those who were to take in future, and B. died in the testator's lifetime, whereby B.'s life estate, and the remain- ders to his sons, failed, the limitations to C's sons ensued as ex- ecutory devises, and the profits from the testator's death till the birth of a son to C. went to the testator's heirs at law.^^ But it should be observed that a devise of all the rest and res- idue of the real estate will pass to the residuary devisee, as well the profits from the testator's death to the time of the estate's vest- ing, as from the termination of the first estate to the vesting of a subsequent one.^* § 714. Same— 2. Disposition of Title to Chattels Prior to the Vesting of an Executory Limitation. Where there is no residuary clause, nor other particular disposition of it, it seems that personal property and its profits, between the testator's death and the vest- ing of an executory estate, or between the determination of the first limitation and the vesting of a s^ibsequent one, will accumu- late for the benefit of the person next to take by virtue of the lim- itations. Thus, where a testator bequeathed personalty to the first 22 2 Washburn, Real Prop. 345 ; ante, § 704. 23 2 Min. Insts. 449, 450; Fearne, Rem. 537; Hopkins v. Hopkins, Cas. temp. Talbot, 51, 52. 2*2 Min. Insts. 450; Fearne, Rem. 544; Stephens v. Stephens, Cas. temp. Talbot, 228. (567i § 715 EXEC. LIM'N TRANSFER AND LIABILITY FOE DEBTS. [Ch. 27 son of A. when he should attain twenty-onfe, and A. had no son at the testator's death, Lord Hardwicke held that the profits of the property should accumulate until A.'s son, who might be afterwards born, attained the age of twenty-one, and then pass to him. And so where a testator bequeathed chattels, including several leasehold houses for years, to M., an infant, and if M. should die before twen- ty-one, and his mother should have no other child, then to W. ; M. died during infancy, and Lord Hardwicke decreed that the rents and profits from the death of M. till the contingency should hap- pen were to accumulate, and to be added to the capital, and if M.'s mother should have no other child they should go to W.^^ § 715. Transfer of Executory Limitations, and Their Liabil- ity fQr Debts. Much the same principles apply with respect to the transmissibility of executory limitations, whether vested or con- tingent, and their liability for the debts of the owner, as apply in the case of remainders.^^ Executory limitations in all manner of property, lands a^d per- sonalty, by the modern construction, are capable of being devised by will, assigned, or conveyed by deed, and of being transmitted by inheritance and succession to the devisee's or grantee's heirs or personal representatives, although it seems that, in case of the assignment of possibilities, the assignee's remedy and protection are in equity.^'' § 716. Trusts for Accumvdation. The general rule, as we have seen, touching executory limitations, is that any future limitation may be made, sO as the same is to take effect within a life or lives in being, including in those lives children then en ventre sa mere, and twenty-one years beyond the expiration of such life or lives and the time of gestation, so as to allow for the birth of a child in ventre matris. Under this rule, prescribing the bounds to execu- tory limitations, it is in the power of the testator or grantor to suspend not only the ownership of the inheritance for the limited time but also to suspend for a like period the intermediate enjoy- ttient, so as to accumulate the income and add it to the principal, and thus aggrandize the remote issue of the family, at the expense of the present, and perhaps of the two or three succeeding genera- 25 2 Min. lusts. 450; Fearne, Rem. 546, 547; Bullock v. Stones, 2 Ves. Sr. 521 ; Studholme v. Hodgson, 3 P. Wms. 300. 2 6 Ante, § 657 et seq. ; 2 Min. Insts. 421, 422. 27 2 Min. Insts. 451, 421, 422 ; Fearne, Rem. 366, 550, et seq. ; Wright v. Wright, 1 Ves. Sr. 411 ; Selwin v. Selwln, 1 W. Bl. 254, note (m) ; Roe v. Griffith, 1 W. Bl. 605; Jones v. Roe, 3 T. R. 93; Perry v. Phillips, 1 Ves. Jr. 254, 256. For the application of the doctrine of transmissibility to legacies payable at a future time, see Fearne, Rem. 5.52, note (g) ; 2 Min. Insts. 451 (568) Ch. 27] EXEC. LIM'n TRUSTS FOR ACCUMULATION. § 716 tions. Availing himself of this rule, one Peter Thellusson, a French- man by birth, but from an early age settled in London, as a mer- chant, and who had there accumulated a fortune of over £700,000, by his will, dated in 1796, and consummated by his death in 1797, made a settlement of his large estate in a manner which produced a very lively sensation in England. He left surviving him a wife and three sons, all married, and three daughters, of whom one was married, and a number of grandchildren, the offspring of his sons. He gave his "dear wife" 300 guineas, a certain quantity of plate, cer- tain wines and liquors, her own jewels and ttinkets, and i2,140 a year for life, subject to certain conditions; to his sons, including previous advancements, £23,000 each; to his daughters a provision of about £12,000 each, and to other persons trifling legacies besides ; and then the great bulk of his estate (about £600,000) to trustees in trust to cause the income to be accurhulated during the lives of all his sons, and all his grandsons living at his death, or then en ventre sa mere, and at the expiration of that period, to be divided into three lots, one to go to the family of each son — that is, one to the eldest male lineal descendant then living of each, in tail male, with cross remainders over amongst such descendants.^^ 28 2 Min. Insts. 451, 452; Fearne, Rem. 53S, note (x), 435, note (h) ; Thellusson v. Woodford, 4 Ves. 227. It was computed by the actuaries em- ployed for the purpose that, according to the probabilities of life, the period of accumulation might equal ninety-flve years ; that there was more than an equal chance that it would exceed seventy,, and a reasonable probability of its reaching eighty years ; that within the last-named space of time every £100 would be increased fifty-fold, so that the amount then to be dis- tributed would be in round numbers £30,000,000! This will was assailed with all the vigor and learning of the English bar. aud Mr. Hargrave particularly distinguished himself by an arguraent of ex- haustive research, in which he went over the whole judicial history of execu- tory liinita tions, from the first faint intimation of the -possibility thereof, in 2 & 3 Ph. & M., A. D. 1555 (2 Dy. 124a), through their feeble development in the reign of Elizabeth, to their distinct recognition by Lord Coke, in Mat- thew Manning's Case, 8 Co. 946, their final establishment in Pells v. Brown, Cro. Jac. 590, and the rules by degrees laid down for their regulation, in point of time, in the subseqilent cases, allowing at first only one life within which the future limitations should take effect, then several lives, wearing out the same time, and finally, with many an Intervening struggle, any number of lives in being and twenty-one years after, with an allowance of the time of gestation for a posthumous child. In the course of this great argument, Mr. Hargrave passed in review all the leading cases upon the subject, showing the gradual modifications, and occasional fluctuations of opinion, down to the great Case of Perpetuities, as it is called (Howard v. Duke of Norfolk, 3 Ch. Cas. 1, 2 Swanst. 454), and sought to deduce from the general tenor of the cases, amongst other in- ferences, first, that executory limitations, and the rules governing them, (569) § 716 EXEC. LIm'n TEUSTS FOR ACCUMULATION. [Gh. 2T This will was sustained and the decision gave rise to the statute 39 and 40 Geo. Ill, c. 98 (A. D. 1800), whereby such trusts of ac- cumulation in England by will are limited, for the most part, to a period of twenty-one years from the testator's death. ^° Similar acts have been passed in several of the states of this coun- try, although the statutes vary as to the period for which property may be tied up for accumulation. originated from an exercise of discretion by the judges, for the sal^e of general convenience; secondly, that there was in the courts a right of fur- ther exercising their discretion for the same purpose, whenever cases preg- nant with any great evil shall provoke it; thirdly, that from the infancy of executory limitations to their maturity there has prevailed amongst the greatest judges an intense jealousy of their liability to abuse, and a decided aversion to extending their limits. He then proceeds to arraign, with great and just severity, the "frenzy of posthumous avarice" evinced by the testator, and to point out various particulars wherein he thought he had exceeded aS well the letter as the spirit of the limits so jealously assigned for future limitations, and concludes with a very notable peroration, in which he in- troduces Lord Nottingham, who by his judgment in the Duke of Norfolk's Case (3 Ch. Cas. 1, 2 Swanst. 454) had confirmed and defined with remarkable force and precision the doctrine of executory limitations, as applauding and enforcing the decree which the advocate hoped would be pronounced against the will, and he ingeniously makes that celebrated founder of modern equity sum up the historical statement, and the argument, vrith great terseness and vigor. The Thellusson Case was finally disposed of in the House of Lords in 1859. The last surviving grandson, died in February, 1856, and immediately the litigation was renewed in order to determine who was the "eldest male lineal descendant" of the oldest son, Peter Isaac Thellusson ; there being no dispute as to the representative of the youngest son, Charles, and the sec- ond son, George Woodward T., having died without male descendants, whereby the property was to be divided into two instead of three parts. The plaintiff in the bill, the "Hon. Arthur Thellusson," born in 1801, the son of Peter Isaac, was his "eldest male descendant," then living, yet "Lord Rundlesham," the defendant, though himself born in 1840, was the only son of Frederick, an older son of Peter Isaac, and therefore claimed to be the "eldest male descendant" in point of representation, and according to the intent of the testator, and so it was held, both by the Master of the Rolls and by the House of Lords. The fund, when thus distributed, had increased but littlel See 2 Min. Insts. 454. 28 2 Min. Insts. 453; Fearne, Rem. 540, note (x). (570) PART IV. The Various Estates in Land, as Respects the Community op Interests Therein. § 717. Severalty of Interest and Community of Interest Distin- guished. Estates of any quantity or duration, absolute or qualified, in presenti or in futuro, may be held in severalty; that is, by a single tenant, or by a plurality of tenants possessing a common in- terest in the estate, such as it is. In the latter case, the estate is said to be held in (1) joint tenancy, (2) tenancy by entireties, (3) tenancy in common, or (4) tenancy in coparcenary, respectively, according to the circumstances.^" A tenant or occupant of lands is said to hold them in severalty, when he holds them in his own right only, without any other per- son being connected with him in point of interest during his estate therein. This is the most usual way of holding an estate, and, therefore, the same observations may be made here that were made in the preceding chapter, touching estates in possession, as con- tradistinguished from those in expectancy — that there is little or nothing peculiar to be remarked concerning estates in severalty, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise, and that in laying down general rules and doctrines we usually apply them to such estates as are held in severalty. We may, therefore, proceed to consider the other class of estates, where there is a plurality of tenants.^^ 80 2 Min. Insts. 465, 466 ; 2 Bl. Com. 179 et seq. »i2 Min. Insts. 466; 2 Bl. Com. 179. (571) CHAPTER XXVIIL JOINT TENANCY. § 718. Nature of a Joint Tenancy. 719. Modes of Creating a Joint Tenancy. 720. The Properties of a Joint Tenancy. 721. 1. Unity of Title. 722. 2. Unity of Interest or Estate. 723. 3. Unity of Time. 724. 4. Unity of Possession. 725. Incidents of a Joint Tenancy — Enumeration. 726. 1. EfEect of Lease by Two Joint Tenants Reserving Rent. 727. 2. Livery of Seisin, Surrender or Notice to, or Entry or Possession by, One Joint Tenant Enures to All. 728. 3. Joint Tenants must at Common Law Convey One to Another by Release. 729. 4. Joint Tenant can Do No Act Tending to Defeat or Injure Estate of Co-Tenant. 730. 5. Joint Tenants must Sue and be Sued Jointly. 731. 6. Liability of Joint Tenants to Co-Tenants for Waste Done or Profits Received. 732. 7. Survivorship or Jus Accrescendl. 733. Modes of Terminating a Joint Tenancy — Discussion Outlined. 734. 1. Destruction of Unity of Title by Transfer of Tenant's Share to a Stranger. 735. 2. Destruction of Unity of Title by Transfer of Tenant's Share to One of His Co-Tenants. 736. 3. Destruction of Unity of Estate by Transfer of Part of Joint Tenant's Estate. 737. 4. Destruction of Unity of Estate by Acquisition of Inheritance by One of Several Joint Tenants for Life or Tears. 738. 5. The Unity of Time Indestructible. 739. 6. Destruction of Unity of Possession by Voluiitary Partition. 740. Deed Necessary for Voluntary Partition of Freeholds. 741. EfiCect of Voluntary Partition. 742. 7. Destruction of Unity of Possession by Compulsory Partition. 743. Advantages and Disadvantages of Dissolving the Jointure. § 718. Nature of a Joint Tenancy. An estate in joint tenancy is where lands or tenements are granted or devised to two or more persons, to hold in fee simple, for life, for years, or at will. It is sometimes called an estate in jointure, which has the same meaning as joint tenancy; but in common speech the term jointure is now usually confined to that joint estate (as in its origin it was) which is vested in husband and wife, as a statutory satisfaction and bar of the woman's dower.^ 1 2 Min. Insts. 466, 477 ; ante, § 288 et seq. ; 2 Bl. Com. 180. (572) Ch. 28] JOINT TENANCY MODES OF CREATION. § 719 Joint tenants, tenants by entireties, tenants in common, and co- parceners, all have this common characteristic, that they hold pro indiviso, or promiscuously. So that one person is not seised or possessed exclusively of one acre, and another person of another (for then they would be tenants in severalty), but the interest and possession of each extend to every specific portion of the whole land of which they are co-tenants. And, accordingly, in all of them the possession of one is considered for most purposes as that of all. In many points of view, however, these several species of estates are materially distinguishable in character and properties, as will be perceived in the successive unfolding and development of each.^ § 719. Modes of Creating a Joint Tenancy. A joint tenancy arises by act of the parties, and never by act of the law. It may be created by devise, or by any conveyance inter vivos, by words which give an estate to a plurality of persons, without adding any restrictive, exclusive, or explanatory words. Thus, if an estate be granted to A. and B., and their heirs, this mak.es them joint ten- ants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both.* And so a devise or grant to A. and his children, supposing that A. has children living then, or at the testator's death, creates a joint tenancy in A., and those children, at common law, for life. But in case of a will, those children only are included who were in being at the testator's death, unless a contrary intention can be in- ferred from the provisions of the will or the circumstances of the case.* On the other hand, supposing A. to have no children at the date of the grant, or at the testator's death, the word "children," unless the context requires a different construction, is a word of limita- tion, and vests a fee tail in A.* Formerly joint tenancy was much favored, for the feudal rea- son that it prevented the division of the useful services, such as military or agricultural services, or rent, and the multiplication of 2 2 Min. Insts. 466, 467 ; 1 Stephens, Com. 312. 3 2 Min. Insts. 467 ; 2 Bl. Com. 180 ; 1 Stephens, Com. 325, 326. 4 2 Min. Insts. 467; 2 Jarman, Wills (5th Ed.) 154, note, 156, anS cases tited, 393, 394 ; Cook v. Cook, 2 Vern. 545 ; Buffar v. Bradford, 2 Atk. 221 ; Bead v. Willis, 1 Collier, 87; Morton v. Tewart, 2 To. & Col. Ch. 81, 82; Wilson V. Maddison, 2 Yo. & Col. Ch. 375; Pyne v. Frajiklin, 5 Sim. 458; De Witte v. De Witte, 11 Sim. 41; Paine v. Wagner, 12 Sim. 188. 6Ante, § 172 ; 2 Min. Insts. 467 ; 2 Jarman, Wills (5th Ed.) 389, 392 ; Wild's Sase, 6 Co. 17a, 17b ; Davis v. Stevens, 1 Dougl. 321 ; Broadhurst v. Morris, 2 B. & Ad. (22 E. O. L.) 1. (573) § 720 JOINT TENANCY — PROPERTIES OF. [Ch. 28 the merely honorary services, such as fealty.* But for more than a century past the courts have laid hold of every available expres- sion to construe estates given to a plurality of tenants as tenancies in common. And although this innovation began in equity, and in reference to wills, yet it has long prevailed in the courts of com- mon laW as well, and the doctrine extends to deeds as uniformly as to wills. Hence such expressions as "equally to be divided," "share and share alike," "respectively between and amongst them," will, according to this modern construction, convert into a tenancy in common, what would once have been a joint tenancy.'' § 720. The Properties of a Joint Tenancy. The properties of a joint estate are derived from its unity, which, as Blackstone re- marks, is fourfold: The unity of interest, the unity of title, the unity of time, and the unity of possession, or more properly, en- tirety of interest. Or, in other words, joint tenants have one and the same interest or estate, arising by one and the same convey- ance, commencing at one and the same time, and held by one and the same undivided possession. Perhaps the tenancy is still better expressed by Lord Coke, who, speaking after Bracton, describes the joint tenant as "sic totum tenens et nihil tenens, scilicet totum conjunctim et nihil per se separatim." * The properties, however, may be well enough classed under the several unities above mentioned, namely: (1) Unity of title; (2) unity of interest or estate; (3) unity of time; and (4) unity of pos- session. ° § 721. Same^l. Unity of Title. The estate of joint tenants must be created by one and the same act, whether legal or illegal, as by one and the same grant, or one and the same disseisin. For joint tenants cannot arise by descent, or act of the law, but merely by purchase, or acquisition by the act of the party ; and unless that act be one and the same, the two tenants would have different ti- tles, of which one might prove good and the other bad, thereby destroying the jointure.^" § 722. Same — 2. Unity of Interest or Estate. Joint tenants must have one and the same interest. One cannot be tenant for life, and another for years; one cannot be tenant in fee, and the other for life. On the other hand, however, there may be joint ten- 6 2 Min. Insts. 467, 496. 7 2 Min. Insts. 467, 468; 2 Bl. Com. 380, note (4); 1 Th. Co. Lit. 773, note (42) ; Hoxton v. Griffith, 18 Grat. (Va.) 574. 8 2 Min. Insts. 468 ; 2 Bl. Com. 180 ; 2 Th. Co. Lit. 733. 9 2 Min. Insts. 468. 10 2 Min. Insts. 468 ; 2 Bl. Com. 181 ; 2 Th. Co. Lit. 728, 731. (574^ Ch. 28] JOINT TENANCY UNITY OF TIME. § 723 ants as to a portion of the fee, with a several interest in one or more of them as to the residue. Thus, as Littleton remarks : "If lands be given to two and to the heirs of one of them, this is a good jointure, and the one hath a freehold and the other a fee simple. And if he which hath the fee dieth, he which hath the freehold shall have the entirety by sur- vivor for term of his life. In the same manner it is where tene- ments be given to two and the heirs of the body of one of them engendered, the one hath a freehold and the other a fee tail, etc." To which Lord Coke subjoins this comment: "By this section, and the 'etc' in the end of it, they are joint tenants for life, and the fee simple or estate tail is in one of them ; and because it is by one and the same conveyance, they are joint tenants, and the fee simple is not executed to all purposes, as hath been said before." ^^ § 723. Same — 3. Unity of Time. The estates of joint tenants must vest in interest at one and the same period, as well as by one and the same title; as in case of a present estate made to A. and B., or a remainder in fee to A. and B. after a particular estate, in either case A. and B. are joint tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder (which is contingent) be limited to the heirs of A. and B., and during the con- tinuance of the particular estate A. dies, whereby the remainder of one m^oiety is vested in his heir, and then B. dies, thereby vesting the other moiety in the heir of B.; now A.'s heir and B.'s heir are not joint tenants of this remainder, but tenants in common, for one moiety vested at one time, and the other at another. So, if an estate be granted to A. for life, remainder to B. and the eldest son of Z. (he having at the time no son), and their heirs, B. does not take in joint tenancy with Z.'s eldest son, because B. takes a vested remainder in a moiety immediately on the execution of the con- veyance, while the remainder in the other moiety does not vest un- til a son is born to Z. ; nor at all at common law, if A. dies first. If a son is born to Z. in A.'s lifetime, still B. had up to that period no joint interest with him, the tenancy was not ab initio a joint tenancy, and not being so at first cannot become so afterwards. ^^ In conveyances operating under the statute of uses, and in de- vises, it is not needful that the. original vesting of the several es- tates should be at the same time. It suffices if the parties take by the same conveyance. Thus, a devise to A. and his children (A. Ill Th. Co. Lit. 746, 744; Fearne, Rem. 23, 24, 28, 29; 2 Min. Insts. 468, 469. 12 2 Min. Insts. 469, 470; 2 Bl. Com. 181; 1 Stephens, Com. 313; 1 Th. Co. Lit. 731, 732. (575) § 724 JOINT TENANCY UNITY OF POSSESSION. [Gh. 28 having one child at the time of the will, and others afterwards) car- ries a joint estate to A. and all his children in being at the death of testator; the estate vesting in those in existence at that time, and afterwards opening to let in those subsequently born. This devia- tion from the rule prevailing at common law has been accounted for by supposing that, upon the introduction of the new tenant, the old estate is revoked, and a new estate arises, which vests at the same time in all then in being, or ready to take. The explanation, however, is not altogether satisfactory, since it appears that, if the first party alienes or charges the estate before the second is born, or ready to take, the alienation or charge, though void in respect to the share of the second party, will continue good in respect to the share of the first, which it is supposed could not be the case if that person's original estate had been revoked. The tendency of the modern adjudications is to hold that it is a joint claim by the same conveyance, and not the vesting at the same time, which makes joint tenants, and that the rule is the same in conveyances at common law and under the statutes of uses and wills. ^^ § 724. Same — i. Unity of Possession. What Blackstone, and most writers after him, have denominated unity of possession, might with more propriety be styled entirety and equality of in- terest; for, while they continue to hold together, they'are not con- sidered as holding in distinct shares, but each is equally entitled to the whole. And, on the other hand, though the entirety ceases for the purpose of alienation, every co-tenant being entitled at pleasure to transfer separately his own share, yet the equality remains ; for each is capable of conveying an equal share with the rest. This combination of entirety of interest with the power of transferring in equal shares is expressed by the ancient law maxim that every joint tenant is seised per mie et per tout, which seems to import a seisin not by the moiety and by the whole, as Blackstone represents (using the word "my," instead of "mie"), but by nothing and by the whole, the French mie meaning not moiety, but nothing. This is clearly conveyed by Lord Coke, who, commenting on the phrase per mie et per tout, remarks (citing Bracton as already mentioned) : Et sic totum tenet, et nihil tenet, scil., totum conjunctim, et nihil ner se separatim. "And albeit they are so seised, as for example, where there be two joint tenants in fee, yet to divers purposes each 18 2 Min. lusts. 470; 2 Bl. Com. 182, note (8); Fearne, Rem. 313 et seq., note (e); 2 Th. Co. Lit. 732, note (D) ; Gilb. Uses, 104; 4 Kent, Com. 358, note (d) ; Shelley's Case, 1 Co. 101, a, note (Q, 3), Thomas' Ed. ; Mutton's Case, 3 Dy. 274 b; Samme's Case, 13 Co. 57; Stratton v. Best, 2 Bro. Ch. 240, notes (2) and (a) ; Doe v. Morgan, 3 T. R. 765. (576) Ch. 28] JOINT TENANCY — LEASE BY TWO TENANTS. § 726 of them hath but a right to the moiety, as to enfeoff, give or devise," etc." This mode of possession (per mie et per tout), by entireties in common and nothing separately, with the power of transferring in equal shares, which is an essential characteristic of a joint es- tate, excludes the possibility of husband and wife being joint ten- ants ; they constituting but one person in law. When land is con- veyed to them, after marriage, not expressly to hold as tenants in common, they are said to be seised by entireties ; but in consequence of their legal oneness, neither can dispose of any part without the assent of the other, but the whole must remain at common law to the survivor.^" From the entirety of interest in each of the co-tenants results the most remarkable incident or consequence of a joint estate, namely, that it is subject to survivorship or the jus accrescendi, presently to be explained.^^ § 725. Incidents of a Joint Tenancy — Enumeration. The inci- dents or consequences of joint tenancy all depend upon that en- tirety of interest which has just been described, and which is in- dicated by the phrase per mie et per tout, which, it must be remem- bered, imports that joint tenants, while the jointure endures, own by entireties together, and nothing separately, but with power of transferring in equal shares. ^^ , § 726. Same— 1. Effect of Lease by Two Joint Tenants, Re- serving Rent. The rent shall enure to both, in respect of their joint reversion, even though it were in terms payable to one only; but if the lease and reservation of rent had been by deed indented, the rent would have enured to him only to whom it was reserved.^'* But upon a joint lease by two or more joint tenants, there may be a separate reservation to each; and, if so, there must be separate ac- tions for the arrears ; and even where the reservation of rent was, 14 2 Min. Insts. 470, 471 ; 2 Bl. Com. 182 ; 1 Stephens, Com. 314, 315, note (m) ; Daniel v. Camplin, 7 M. & Gr. 172, note (c) ; Murray v. Hall, 7 Man. Gr. & S. 455, note (a) ; Appendix Wythe's Rep. (Va.) 391 (Minor's Ed.), note by Mr. W. Green. 15 Post, § 744 et seq. ; 2 Min. Insts. 471; 1 Stephens, Com. 314, 315; 1 Th. Co. Lit. 739-'40, note (L) ; Case of Alton "Woods, 1 Co. 30a, note (E, 1) ; Green v. King, 2 W. Bl. 1211 ; Doe v. Parratt, 5 T. R. 652 ; Thornton v. Thorn- ton, 3 Rand. (Va.) 179 ; Norman v. Cunningham, 5 Grat. (Va.) 63 ; Heming- way V. Scales, 42 Miss. 1, 93 Am. Dec. 425, 2 Am. Rep. 586. 16 Post, § 732; 2 Min. Insts. 471, 472, 476; 2 Bl. Com., 182; 1 Stephens, Com. 315. IT Ante, § 695; 2 Min. Insts. 472, 470; Wythe (Va.) Rep. (Minor's Ed.V 396, note by Mr. W. Green. 18 2 Min. Insts. 472 ; 2 Th. Co. Lit. 84 ; 1 Th. Co. Lit. 734 ; 2 Bl. Com. 182. Minor & W.Real Prop.— 37 (577) § 727 JOINT TENANCY — POSSESSION OF ONE ENURES TO ALL. [Ch. 28 in the first instance, joint, yet, if it were not under seal, a notice from one of the joint tenants to the lessee to pay him separately," and a payment, accordingly, is evideijce of a fresh separate demise of his share, and for subsequent arrears he must sue separately.*® § 727. Same — 2. Livery of Seisin, Surrender or Notice to, or Entry or Possession by, One Joint Tenant Enures to All. These depend upon the entirety of interest vested in joint tenants, since each has the whole jointly and nothing separately.^" And so it is of a release and confirmation respectively, to one of several joint tenants. They enure to all, and for the same rea- son.-'- Since the possession by one joint tenant is the possession by all, it follows that one cannot maintain an action of trespass against his fellow in respect to the land, because he has an equal right to enter on any part of it. And, upon like principles, one joint tenant is incapable of maintaining an action of ejectment against another, unless there is proof of an actual ouster, or of some other act amounting to a total denial of the plaintiff's right as co-tenant, of which an undisturbed sole possession for many years may afford proof. ^^ And when the adverse possession thus established has continued uninterruptedly for the length of time prescribed by the statute of limitations, it will give a good and sufficient title to the occupant.^^ And as every joint tenant, and tenant in common, occupies a position of trust and confidence towards his companions, he is not, as a general rule, allowed to purchase an outstanding adverse title to the common property for his own benefit, to the exclusion of his co-tenants. But the co-tenant must, within a reasonable time, make his election to claim the benefit, and contribute to the expense of the purchase ; and if he unreasonably delays, until there is a change in the condition of the property, or in the circumstances of the parties, he will be held to have abandoned all claim to the benefit of the new acquisition. But in order that this presumption may arise, it should appear, not only that he has been apprised of the purchase, but of the adverse claim set up under it, by his companion, for he may 19 2 Min. Insts. 472; 2 Bl. Com. 182, uote (11); Powis v. Smith, 5 B. & Aid. 8.50. 20 2 Min. Insts. 472 ; 2 Bl. Com. 182 ; 1 Tli. Co. Lit. 734, note (D) ; 2 Th. Co. Lit. 378; Cliapman v. Chapman, 91 Va. 308, 21 S. E. 813, 50 Am. St. Rep. 846; Pillow v. Southwest Virginia Imp. Co., 92 Va. 144, 23 S. E. 32, 53 Am. St. Rep. 804: 212 Min. Insts. 473; 2 Th. Co. Lit. 4G.">. note (Z), 530. 22 2 Min. Insts. 473. 2 3 2 Min. Insts. 473; Stonestreet v. Doyle, 75 Va. 356, 40 Am. Kep. 731. (578) Ch. 28] JOINT TENANCY INJURY TO CO-TENANT, ' § 729 reasonably suppose that the acquisition is made in support of the common title, and may act on that supposition. The burden in such a case is upon the purchasing tenant to show that his co-tenant had notice, both of the purchase and of the exclusive claim, in conse- quence of it, asserted by him. The conveyance by the purchasing tenant to a third person, is not, in itself, such a notice ; nor are the acts of purchase and conveyance acts equivalent to an actual ouster, in pursuance of the statute above referred to.^* § 728. Same — 3. Joint Tenants must at Common Law Convey, One to Another, by Release. No conveyance, operating by livery of seisin, would be proper between joint tenants, because, each ten- ant being seised of the whole conjointly, there is nothing that can be delivered to him which he does not possess already. On the oth- er hand, and for the same reason, a release is the proper form of assurance, each having the legal possession or seisin of the whole, so that, when one parts with his interest to the rest, he is simply dismissed from the joint ownership ; his fellow or fellows still con- tinuing seised of the whole as before. The release in such case operates by way of passing an estate (de mitter Testate).^'* § 729. Same — 4. Joint Tenant can Do No Act Tending to De- feat or Injure Estate of Co-tenant. His co-tenant being seised equally with himself of the whole, and the possession of one being the possession of both, whatever conveyance or lease either tenant may make, although it profess to be of all, operates to pass only his part. And if it be a simple charge, not amounting to an actual transfer of the estate, and the maker of it die first, the survivor takes the property at common law, discharged of all the incum- brances, according to the maxim "Jus accrescendi proefertur oneri- bus, sed alienatio rei proefertur juri accrescendi." ^* But although the seisin of a joint tenant is per totum et per nihil (of the whole jointly, and of nothing severally), and although his capacity is to transfer a distinct share undivided, and not by metes and bounds, yet a joint tenant's conveyance by metes and bounds is not void. It cannot, indeed, affect injuriously the co-tenant, but as against the grantor, it is effectual to pass his interest in the land making the grantee tenant in common with the co-tenant. 24 2 Min. Insts. 473 ; Pillow v. Southwest Virginia Imp. Co., 92 Va. 145, 23 S. E. 32, 53 Am. St. Rep. 804; Darcey v. Bayne, 105 Md. 365, 66 Atl. 434, 10 L. R. A. (N. S.) 863; Allen y. Allen, 114 Wis. 615, 91 N. W. 218. See, 1 Washburn, Real Prop. (6th Ed.) § 859. 25 2 Min. Insts. 4T4; 2 Th. Co. Lit. 514; 1 Th. Co. Lit. 765, note (E) ; Gilbert, Ten. 73, 74. 26 2 Min. Insts. 474; 2 Bl. Com. 193, note (13); 1 Th. Co. Lit. 748; Tuttle T. Eskridge, 2 Munf. (Va.) 330. (579) § 730 JOINT TENANCY JOINDEK IN ACTIONS. [Ch. 28 § 730. Same — 5. Joint Tenants must Sue and be Sued Jointly. This is an inevitable consequence of the entireties by which joint tenants are seised. Their estates being one and the same, their titles one and the same, and their interest entire, per totum con- junctim, et per nihil separatim, there can be no foundation for any- thing but a joint suit, whether the joint tenants are plaintiffs or de- fendants, unless, indeed, they avail themselves of their rather incon- sistent capacity to transfer distinct shares for a time, as by separate leases reserving rent, in which case they not only may, but must, sue for the rent separately; and if they have occasion to bring an action to recover the land thus separately demised, it must be a separate action. ^^ § 731. Same — 6. Liability of Joint Tenants to Co-Tenants for Waste Done or Profits Received. At common law, a joint tenant was not liable at all to his co-tenants for waste committed or profits received by him. This doctrine arose out of the consideration that either tenant had a right to the separate occupancy of the whole, and that, if one permitted his fellow to occupy the premises ex- clusively, he had only himself to blame for waste committed, or for any surplus above his due share of profits received, unless, in the latter case, the co-tenant in possession had been constituted ex- pressly the bailiff or agent of his companion, when an action of ac- count always lay against the party receiving.^* But as to waste, this principle was corrected by Stat. Westm. II (13 Edw. I, c. 22, A. D. 1285), whereby the action of waste is given to one tenant in common of the inheritance against another, who makes waste in the common estate, the equity of which statute was held to extend to joint tenants, but not to coparceners, because they could always guard against such an injury by compelling par- tition, which the common law did not permit joint tenants and tenants in common to do. In respect of nonaccountability for sur- plus profits over and above his proper share, received by one co- tenant, no remedy was applied by statute until 4 Anne, c. 16 (A. D. 1706), whereby joint tenants and tenants in common were made accountable, one to another, for receiving more than their due share of the profits of the common estate. Coparceners it seems were not mentioned in this statute for the same reason as before, name- ly, that they had it in their power to prevent the injury by com- pelling a partition. ^^ But notwithstanding the mention by the statute of the action of account, the usual proceeding is not by that action, but by a bill in 27 2 Min. Insts. 474, 475; 2 Bl. Com. 182, notes (11), (12); 1 Th. Co. Lit. 7.33 ; Doe v. Chaplin, 3 Taunt 126. 28 2 Jlin. Insts. 475. 2i>2 Min. Insts. 475. (580) Ch. 28] JOINT TENANCY SURVIVORSHIP. § 732 equity, which, by its commissioner, can adjust the account more conveniently than can be done in the action at law, where resort must be had to several persons as auditors.'" § 732. Same — 7. Survivorship or Jus Accrescendi. The doc- trine of survivorship is the grant incident of joint estates, which more than any other distinguishes them from the other instances of estates held in common. It is the immediate consequence of the peculiar mode in which joint tenants are seised, namely, per totum et per nihil, or per mie et per tout; for if A. and B. are joint ten- ants in fee, and each is seised of the whole jointly, but of nothing separately (but with capacity to transfer an equal share), and A. dies, he can transmit nothing to his heir, but leaves B. seised as before of the whole, but now with no one to share with him.'^ This right of survivorship is called the jus accrescendi, because the right upon the death of one joint tenant accumulates and in- creases to the survivors; or as Bracton and Fleta express it, "Pars ilia communis accrescit superstitibus, de persona in personam, usque ad ultimum superstitem." It is usually, but not necessarily, mutual. Thus, if lands be let to A. and B. during the life of A., if B. dies, A. has all by survivorship ; but if A. dies, the estate is at an end, and B. takes nothing.'^ Notice must, moreover, be taken of a diversity, as to survivor- ship, between a bare trust or authority and a trust coupled with an interest. The bare trust or authority does not survive; the latter does, as in the case of a deed of trust.'' And also a farther diversity, as to survivorship, should be noted, between joint estates in chattels generally, which are subject to the fus accrescendi, and in capital or stock in trade, amongst merchants and traders, as to which there is no survivorship, out of regard to the interests of trade, the maxim being "Jus accrescendi inter mercatores pro beneficio commercii, locum non habet." '* But although the title to partnership chattels does not survive, and, therefore, the surviving partner has no power to dispose of the deceased partner's share, but the same goes to the latter's personal representative, yet it is otherwise as to the choses in action of the partnership. They do survive, and the remedy is to be prosecuted 30 2 Min. Insts. 476; 2 Bl. Com. 183, note (14); 3 Bl. Com. 227; 3 Th. Co. Lit. 245, note (26), 346, note (15); 1 Story, Eq. Jur. §§ 446, 466. 312 Min. Insts. 476; 2 Bl. Com. 183, 184; 1 Th. Co. Lit. 736 et seq. 3 2 2 Min. Insts. 476 ; 2 Bl. Com. 184, note (16) ; 1 Th. Co. Lit. 737. 3 3 Post, § 1048; 2 Min. Insts. 476, 477; 1 Th. Co. Lit. 738; Combe's Case, 9 Co. 75b; 1 Sugden, Powers, 143; Mosby v. Mosby, 9 Grat. (Va.) 590, 591; Osgood V. Franklin, 2 Johns. Ch. (N. Y.) 19, 20, 7 Am. Dec. 513. 84 2 Min. Insts. 477 ; 1 Th. Co. Lit. 738, note (I) ; 3 Th. Co. Lit. 297. (581) § 733 JOINT TENANCY TERMINATION. [Ch. 28 in the name of the surviving partner. The chattels in possession are to be distributed between the survivor and the personal rep- resentative of the deceased partner, in the same manner as they would have been upon a voluntary dissolution inter vivos.^' § 733. Modes of Terminating a Joint Tenancy — Discussion Out- lined. We have seen that every joint estate has four properties or unities, namely, the unities of title, estate, time and possession. The destruction of any one of these (that is capable of destruction) will destroy the joint tenancy. Hence we are to consider the fol- lowing modes of destroying or terminating the joint estate : (1) The destruction of the unity of title by the transfer of the ten- ant's share to a stranger; (2) the destruction of the same unity by the transfer of a joint tenant's share to one of his co-tenants; (3) the destruction of the unity of estate by the transfer of part of one joint tenant's estate to a stranger or to a co-tenant; (4) the destruction of the same unity by the acquisition of the inherit- ance by one of two joint tenants for life or for years ; (5) there can be no destruction of the unity of time; (6) the destruction of the unity of possession by voluntary partition; (7) the destruction of the same unity by compulsory partition under decree of court. If any other unity than that of possession be destroyed, the joint ten- ancy is converted into a tenancy in common. ^° § 734. Same— 1. Destruction of Unity of Title by Transfer of Tenant's Share to a Stranger. If one joint tenant conveys his share to a third person, according to the power reserved to him (notwith- standing he is otherwise seised only per totum, conjunctim), or in equity, which looks upon what ought to be done as actually done, if he contracts to convey, the jointure is severed, as to the tenant so conveying, and as between his alienee and the other tenants, it is turned into a tenancy in common. For instance, if A., B. and C. are joint tenants in fee, and A. alienes to Z., Z. is thenceforward, as to B. and C, a tenant in common, but, as between themselves, B. and C. are still joint tenants. But a devise of one's share by will is no severance of the jointure; for no will takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has, therefore, a priority to the other) is already vested, "where- by it appeareth," says Lord Coke, "that Littleton, by these words — post mortem, et per mortem — though they jump at one instant, SB 2 Min. Insts. 477; Story, Partn, § 342; Buckley v. Barber, 6 Exch. 177 et seq. 3 8 Ante, § 721 et seq. (582) Ch. 28] JOINT TENANCY — TERMINATION. § 737 yet alloweth priority of time in the instant, which he distinguisheth by per and post" ; the rule of law being that jus accrescendi prsefer- tur ultimse voluntati.^^ § 735. Same — 2. Destruction of Unity of Title by Transfer of Tenant's Share to One of His Co-Tenants. Thus, if A., B. and C. be joint tenants in fee, and C. convey, or in equity contract to convey, his share to B., the jointure is dissolved as to C.'s share; for, whilst the two remaining parts are still held in jointure, B. holds C.'s original share by a different title, taking effect at a dif- ferent time, by means of a different conveyance, and as to that share is a tenant in common with A.^^ The proper mode, at common law, whereby one joint tenant should convey to his fellow, is not by feoffment, or by any con- veyance operating, at common law, by livery of seisin, which is, indeed, impossible, each tenant being already seised of the whole, but by release, which enures by way of mitter Testate, and not by way of extinguishment.^ ° § 736. Same— 3. Destruction of Unity of Estate by Transfer of Part of Joint Tenant's Estate. Thus, if there be two joint tenants in fee, and one makes a lease for life of his share, this defeats the jointure ; for it destroys the unity of title, as well as of interest, the reversion following the condition of the freehold. Although, if the tenant for life die in the life of both the original joint tenants, they become joint tenants as before. And so, if there be two joint tenants for years, and one of them lets his share for a part of the term, the jointure is severed, it seems irrevocably.^" § 737. Same — i. Destruction of Unity of Estate by Acquisition of Inheritance by One of Several Joint Tenants for Life or for Years. If there iDe several joint tenants for life (or for years), and the inheritance is afterwards purchased by, or descends upon, ei- ther, it is a severance of the jointure; for the lesser estate merges in the inheritance, and thus the tenants cease to have the same es- tate or interest. But, as we have seen, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure without merging in the inherit- 37 2 Min. Insts. 478, 479 ; 2 Bl. Com. 185, 186, note (18) ; 1 Th. Co. Lit. 752 et seq., 759, 755, note (U). 38 2 Min. Insts. 479; 2 Bl. Com. 186; 1 TIi. Co. Lit. 764. 39 2 Min. Insts. 479; 1 Tli. Co. Lit. 765, note (E). *o 2 Min. Insts. 479 ; 2 Bl. Com. 163 ; 1 Tli. Co. Lit. 754 et seq., 760 et seq. But if the joint tenancy is a freehold, a lease for years will not destroy the jointure, because none of the unities is thereby destroyed. The tenants are, notwithstanding the lease for years, possessed of the same interest (freehold), vested by the same title and at the same time, as before. ■ (583) § 738 JOINT TENANCY TERMINATION. [Ch. 28 ance, because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate.*^ § 738. Same — 5. The Unity of Time Indestructible. The unity of time respects only the original commencement of the joint es- tate, and cannot (being now past) be affected as to the original par- ties by any subsequent transactions.*^ § 739. Same — 6. Destruction of Unity of Possession by Vol- untary Partition. The joint tenancy may be destroyed, without any alienation, by disuniting the possession of the tenants by par- tition of the land among them. For as joint tenants must be seised per totum et per nihil, everything that tends to prevent their being seised throughout the whole is a severance of the jointure. Hence, if two joint tenants part their lands and hold them in severalty (or in equity agree to do so), they are no longer joint tenants ; for they have now no joint interest in the whole, but only a several inter- est in the respective parts. And for that reason, also, the right of survivorship is by such separation destroyed.*^ Such partition may be either (1) by common consent of the sev- eral co-tenants, or voluntary partition; (2) by decree of court, or compulsory partition. By the common law all the joint tenants might agree to make partition of the lands, but one of them could not compel the oth- ers so to do ; for, this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar uni- versal consent — a reason which has been justly characterized as more specious than solid, good sense seeming rather to indicate that in cases capable of severance of interest the jointure should continue, as in case of partnership, so long as both parties should consent, and no longer.** § 740. Same — Deed Necessary for Voluntary Partition of Free- holds. Partition of estates of freehold between joint tenants made by consent, even at common law, requires a deed ; mutual livery of seisin between the parties (which is sufficient in case of tenants in common) being impracticable in consequence of that entirety of seisin which is so marked a characteristic of joint tenancy. But *i2 Min. Insts. 479, 480; 2 BI. Com. 186; 1 Th. Co. Lit. 744, 745, note (N) ; Wiscot's Case, 2 Co. 60b, 61a, uote (G). *2 2 Mln. Insts. 480 ; 2 Bl. Com. 185. 43 2 Mln. Insts. 480; 2 Bl. Com. 185. *4 2 Min. Insts. 480 ; 2 Bl. Com. 185 ; 1 Th. Co. Lit. 753 ; 1 Story, Eq. Jur. § 647. (584) Ch. 28] JOINT TENANCY ADVANTAGES OF DISSOLUTION. § 743 an agreement to make partition may be enforced in equity, although not under seal, whenever a similar agreement to convey would be enforceable.*^ § 741. Same— Effect of Voluntary Partition. If the parties la- bor under no disability, and no fraud or misrepresentation is shown, an inequality in value, or irregularity in proceeding, will not affect the validity of the partition, especially if it has been long acquiesced in by the parties. *° But when the parties, or either of them, labor under any dis- ability, or there has been fraud or misrepresentation in making the partition, a court of equity will within a reasonable time set the partition aside, and correct it in those particulars wherein it is liable to objection, just as the court would do in case of any other transac- tion, attended by similar objections.*^ § 742. Same — 7. Destruction of Unity of Possession by Com- pulsory Partition. This is the most usual method of determining estates held in common, whether as joint tenants, tenants in com- mon or estates in coparcenary; its effect, like that of voluntary partition, being due to the fact that the unity of possession is there- by destroyed. § 743. Advantages and Disadvantages of Dissolving the Join- ture. In general, it is advantageous for joint tenants to dissolve the jointure, where the right of survivorship still subsists; for, since by the dissolution the jus accrescendi is taken away, each tenant may transmit his own part to his own heirs. Sometimes, however, that very privilege of survivorship confers a marked advantage, and then, of course, the continuance of the joint tenancy is desir- able. Thus, if A. and B. be joint tenants for life, during the join- ture each has an estate in the whole for the life of his companion, and if he survive for his own life also ; whereas, if they make parti- tion, each has an estate in his own share for his own life merely.*' *5 2 Min. Insts. 480, 481; 1 Th. Co. Lit. 704, 705, note (57), 753, note (R) ; 2 Th. Co. Lit. 449, note (G) ; Frewen v. Eelfe, 2 Bro. Ch. 224. 4s 2 Min. Insts. 481 ; 1 Th. Co. Lit. 692, 708. 47 2 Min. Insts. 481; 1 Th. Co. Lit. 692, 710, 712; Fitzhugh v. Foote, 3 Call (Va.) 17. *8 2 Min. Insts. 494; 2 Bl. Com. 187. (585) CHAPTER XXIX. TENANCY BY ENTIRETIES. § 744. Nature of Tenancy by Entireties. 745. Incidents of Tenancy by Entireties. 1. Disability of Either Consort to Convey His or Her Share Durlng^ the Coverture. 746. 2. Doctrine of Survivorship. 747. Termination of Tenancy by Entireties. § 744. Nature of Tenancy by Entireties. The tenancy by en- tireties is governed by much the same principles that control joint tenancy. Indeed, in one aspect, it may be said to be a joint tenan- cy, modified by the common-law principle that the husband and wife are but one person^ for this tenancy can exist only where the persons to whom the property is given are husband and wife at the time of the gift; it not being created by a conveyance or de- vise to persons in joint tenancy who afterwards marry. ^ It is not essential, however, that the husband and wife should be the only grantees or devisees ; but if there are other grantees, the husband and wife (because of their legal identity) are regarded as one person only, so that they take only one share between them, not a share apiece. Thus, if land be granted or devised to a hus- band and wife and another, the husband and wife, prima facie at least, take one-half of the estate between them, and the third per- son the other half.' If land be thus given to a husband and wife, whether it is to be regarded as a tenancy by entireties, or a joint tenancy, or a ten- ancy in common merely, is a matter of the intention of the gran- tor or testator; but in the absence of a clear intent manifested to 1 2 Min. Insts. 471 ; Thornton v. Thornton, 3 Rand. (Va.) 179 ; Norman v. Cunningham, 5 Grat. (Va.) 63; Morris v. McCarty, 158 Mass. 11, 32 N. E. 938; Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266; Brownson v. Hull, 16 Vt. 309, 42 Am. Dec. 517. 2 2 Min. Insts. 471 ; 1 Tiffany, Real Prop. § 165 ; Morris v. McCarty, 158 Mass. 11, 32 N. E. 938; Ilardenbergh v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371; Holt v. Wilson, 75 Ala. 58; Stuckey v. Keefe, 26 Pa. 397 See Hlles v. Fisher, 144 N. Y. 306, 39 N. B. 337, 43 Am. St. Rep. 762, 30 L. R. A. 305, and note. 3 2 Min. Insts. 471 ; 4 Kent, Com. 363 ; 1 Washburn, Real Prop. 425 ; Jupp V. Buck-well, 39 Ch. Div. 148; Thornton y. Thornton, 3 Rand. (Va.) 179; Barber v. Harris, 15 Wend. (N. Y.) 615; Hardenbergh t. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371. (586) Ch. 29] TENANCY BY ENTIRETIES DOCTRINE OP SURVIVORSHIP. § 746 the contrary it is prima facie to be regarded as a tenancy by en- tireties.* § 745. Incidents of Tenancy by Entireties — 1. Disability of Ei- ther Consort to Convey His or Her Share during the Coverture. It is one of the incidents of a joint tenancy, as we have seen/ that while the tenants hold per mie et per tout, yet each may convey to a co-tenant or to a stranger a distinct share. In this respect, the tenancy by entireties differs radically from an ordinary joint tenancy. While the husband at common law, under his ordinary marital right of disposing of and managing his wife's lands during the coverture, might during the coverture con- trol and dispose of his wife's share of the land held by entireties,' yet with this exception, in consequence of their legal oneness, nei- ther can dispose absolutely even of his or her own part of the prop- erty without the other's assent, but the whole remains at common law to the survivor.' § 746. Same — 2. Doctrine of Survivorship. We have seen that survivorship existed at common law as between joint tenants be- cause of the manner of their holding — per mie et per tout.'' This being the doctrine of the common law with respect to joint ten- ants, it should have been, and was, a fortiori applicable to tenants by entireties, whose oneness or identity was much more pronounced than that existing between joint tenants." Furthermore, the ten- ancy by entireties being a distinct form of tenancy, the statutes abolishing joint tenancies in various states have been held not ap- plicable to tenancies by the entireties.^" 4 1 Tiffany, Real Prop. § 165 ; 1 Preston, Est. 132 ; 4 Kent, Com. 363 ; Hunt V. Blackburn, 128 U. S. 464, 9 Sup. Ct. 125, 32 L. Ed. 488; Pulper v. Fulper, 54 N. J. Eq. 431, 34 Atl. 1063, 32 L. R. A. 701, 55 Am. St. Rep. 590 ; Hiles V. Fisher, 144 N. Y. 313, 39 X. E. 337, 43 Am. St. Rep. 762, 30 L. R. A. 305 ; Young's Estate, 166 Pa. 645, 31 Atl. 373 ; Pladung v. Rose, 58 Md. 13. sAnte, § 724. 8 1 Tiffany, Real Prop. § 165 ; Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361; Ames V. Norman, 4 Sneed (Tenn.) 683, 70 Am. Dec. 269 ; Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302. 7 2 Min. Insts. 471 ; 2 Bl. Com. 182 ; 4 Kent, Com. 362 ; 1 Tiffany, Real Prop. § 165 ; Thornton v. Thornton, 3 Rand. (Va.) 179 ; Norman v. Cunning- ham, 5 Grat. (Va.) 63; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337, 43 Am. St. R«p. 762, 30 L. R. A. 328, note ; Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462; Rogers v. Grider, 1 Dana (Ky.) 242; Needham v. Branson, 27 N. C. 426, 44 Am. Dec. 45 ; . Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266. sAnte, § 732. » 2 Min. Insts. 477. See authorities cited ante, § 745. 10 1 Washburn, Real Prop. (6th Ed.) § 915. (587) § 747 TENANCY BY ENTIRETIES TERMINATION. [Oh. 29 § 747. Termination of Tenancy by Entireties. The estate by entireties might be terminated at common law by the joint deed of husband and wife conveying the share of either or the shares of both, it becoming a tenancy in common with the grantee in the first instance and a tenancy of the grantee in severalty in the secr ond; but neither consort could at common law by his or her sole act convey his or her share, so as to destroy the consort's right of survivorship upon the death of the one who makes such convey- ance.^^ Nor could land so held be partitioned during the cover- ture, since this would imply a separate interest in each tenant, con- trary to the fundamental conception of the tenancy at common law.^2 But a divorce or dissolution of the marriage terminates the ten- ancy at common law, rendering the tenants thenceforth joint ten- ants, as they would have been had they never been married;^' and then, of course, partition might be obtained by either.^* 11 Ante, § 745. 12 Gray v. Bailey, 117 N. C. 439, 23 S. E. 318; Chandler v. Cheney, 37 Ind. 391 ; Ketchum v. Walsworth, 5 Wis. 95, 68 Am. Dec. 49 ; 1 TifEany, Keal Prop. § 165. 13 1 Tiffany, Real Prop. § 165 ; Stelz v. Shreck, 128 N. T. 263, 28 N. E. 510, 13 L. R. A. 325, 26 Am. St. Rep. 475; Donegan v. Donegan, 103 Ala. 488, 15 South. 823, 49 Am. St. Rep. 53; Hopson v. Powlkes, 92 Tenn. 697, 23 S. W. 55, 23 L. R. A. 805, 36 Am. St. Rep. 120 ; Russell v. Russell, 122 Mo. 235, 26 S. W. 677, 43 Am. St. Rep. 581 ; Hiles v. Fisher, 144 N. X. 306, 39 N. B. 337, 43 Am. St. Rep. 762, 30 L. R. A. 333, note. 14 1 Tiffany, Real Prop. § 165; Russell v. Russell, 122 Mo. 235. 26 S. W. 677, 43 Am. St. Rep. 581; Harrer v. Wallner, 80 111. 197. (588) CHAPTER XXX. TENANCY IN COMMON. § Y48. Nature of the Tenancy in Common. 749. Modes Whereby Tenancy in Common may be Created — Enumeration. 750. 1. Express Limitation. 751. 2. Grant of Undivided Part of One's Land to a Stranger. 752. 3. Grant or Devise of Lands to Tvco or More Persons "Equally to be Divided between Them," etc. 753. 4. Breaking Up of Estates in Joint Tenancy or in Coparcenary. 754. Properties of Tenancy in Common. 755. Incidents of Tenancy in Common — Enumeration. 756. 1. To Sue and be Sued Severally. 757. 2. Actions of Waste and Account. 758. 3. Possession by One Tenant in Common Enures to All. 759. 4. Repair of Premises Belonging to Tenants in Common. 760. 5. No Survivorship between Tenants in Common. 761. 6. Mode Whereby One Tenant in Common may Convey His Share to His Co-tenant. 762. Termination of Tenancy in Common. 1. Union of All the Shares in One Person. 763. 2. Partition between Tenants in Common, § 748. Nature of the Tenancy in Common. A tenancy in com- mon is where two or more hold the same land, with interests ac- cruing under different titles, or accruing under the same title, but at different periods, or conferred by words of limitation importing that the grantees are to take in distinct shares.^ In this tenancy there is not necessarily any unity of title, for one may hold by purchase from A., and another by purchase from B. ; nor any unity of time, for one's estate may have vested fifty years ago, and that of the other but yesterday; nor any unity of estate or interest, for one tenant in common may be entitled in fee simple, and the other for life or for years. Neither is there that entirety of interest which so remarkably characterizes joint tenancy, for each is seised or possessed of a distinct though undivided share; from which also it follows that there is no survivorship, that is, by the effect of the tenancy itself, for by express limitation there may be. The union consists or may consist only in this : That they hold the same land pro indiviso, by a possession in common, or promiscuously.^ 1 2 Min. Insts. 494 ; 1 Stephens, Com. 323 ; Carneal v. Lynch, 91 Va. 117, 20 S. E. 959, 50 Am. St. Rep. 819. 2 2 Min. Insts. 494, 495; 2 Bl. Com. 191, 192; 1 Stephens, Com. 323; 1 Th. Co. Lit. 758. (589) § 749 TENANCY IN COMMON — MODES OF CREATION. [Ch. 30 § 749. Modes Whereby Tenancy in Common may be Created — Enumeration. A tenancy in common may be created by (1) a limitation to two or more persons to hold expressly as tenants in common; (2) a grant of part of one's land to a stranger; (3) a devise or grant of lands to two or more persons, equally to be di- vided between them; and (4) a breaking up of estates in joint tenancy and in coparcenary. § 750. Same — 1. Express Limitation. "If lands be given to two," says Littleton, "to have and to hold, scil., the one moiety to the one and his heirs, and the other moiety to the other and his heirs, they are tenants in common ;" and Lord Coke adds that the reason is because they have several freeholds, and an occupation pro indiviso. And so it is if lands be given to two or more to hold as tenants in fcommon, and not as joint tenants.^ § 751. Same — 2. Grant of Undivided Part of One's Land to a Stranger. "If a man, seised of certain lands, enfeoff another of the moiety of the same land (and the like law is if it be of a third or fourth part), without any speech of assignment or limitation of the same moiety in severalty, at the time of the feofifment, then the feoffee and the feoffor shall hold their paits of the land in com- mon ;" for as they do not derive their titles by the act of the law, but by that of the parties, they are not parceners, and as they do not claim by one and the same conveyance, taking effect at one and the same time, they are not joint tenants, nor are they seised in severalty, but pro indiviso. They must therefore be tenants in common.* § 752. Same — 3. Grant or Devise of Lands to Two or More Persons, "Equally to be Divided between. Them," etc. The doc- trine that the phrases "equally to be divided," "share and share alike," "respectively between and amongst them," etc., will make a tenancy in common, was at first confined to wills, and to the courts of equity, but has long prevailed in the courts of law also, and in reference not only to wills, and to conveyances under the statute of uses, but also in respect to conveyances at common law.^ This is an instance of a change of policy in the law, to which allusion has already been made. Formerly joint tenancy was much favored, and the common law, in its construction, leaned to it rath- er than to tenancy in common ; because the divisible services is- suing from land (as rent, etc.) were not divided, nor the entire serv- 3 2 Min. Insts. 495 ; 1 Th. Co. Lit. 772 ; 1 Stephens, ' Com. 325 ; 2 Bl. Com. 193. *2 Mm. Insts. 495; 1 Th. Co. Lit 773; 1 Tuclcer, Com. 182. sAnte, i 729 ; 2 Min. Insts. 496, 497 ; 2 Bl. Com. 180, note (4). (590) '74 ; Crensbaw v. Slate River Co., 6 Rand. (Va.) 245 ; The King v. Lord Yarborough, 3 B. & Or. 01 ; Scratteu v. Brown, 4 B. & Cr. 485 ; In re Hull, etc.. Railway, 5 JI. & W. 331 ; Abbot of Ramsay's Case, 3 Dy. 326b ; The King V. Smith, 2 Dougl. 444 ; People v. Kirk, 162 111. 138, 45 K. E. 830, 53 Am. St Kep. 289, note ; Coulthard v. Stevens, S4 Iowa, 241, ,50 N. W. 983, 32 Am. St. Rep. 307, note. 6 2 llin. Insts. 563 ; 2 Tiffany, Real Prop. § 453 ; Gould, Waters, § 155 ; In re Hull, etc., Railway, 5 M. & W. 327; Chesapeake & O. R. Co. v. Walker, 100 Va. 82, 40 S. E. 033. 914; East Hampton v. Kirk, 84 X. T. 218, 38 Ajn. Rep. 505; Cox v. Arnold, 120 Mo. 337, 31 S. W. .^i02, .50 Am. St. Rep. 450; Warren v. Chambers, 25 Ark. 120, 91 Am. Dec. 538, 4 Am. Rep. 23; Hagan V. Campbell, 8 Port. (.\la.) 9, 33 Am. Dec. 277 et set]., note. 1 Chesapeake & O. R. Co. v. Walker, 100 \a. 82 et seq., 40 S. E. 633, 914. (G24) Ch. 34] TITLE By ACCRETION AVULSION. § 815 bed ceases to belong to B., and becomes the property of A.' And so, if A. should own only one side of the stream, which would bring his boundary to the middle of the stream," the middle line of the stream remains the boundary, though such middle line itself changes as a result of the change in the stream's location.^" It is worthy of note that the title to such accretion is subject to any incumbrances or rights of third parties to which the original land to which it has attached itself is subject, such as a lien, an easement or an outstanding lease. ^^ So, if the statute of limita- tions" has partially run against the owner's right to recover his orig- inal land, his right to recover the alluvion dies with the right to recover the former.^'' § 814. Same — Apportionment of Alluvion. Where there are several contiguous riparian proprietors, and the alluvion (or relic- tion) is formed along the entire shore line, the general and better rule seems to be that, in order to ascertain the respective propor- tions of the new land accruing to each owner, the new shore line should be divided between or among them in proportion to the length of their old water fronts, and that the points of division of the new frontage should then be connected by straight lines with the termini of the old water fronts, these straight lines constituting the lateral boundary lines of the several owners as respects the allu- vion. ^^ § 815. Avulsion. In the case of avulsion, when land is added by some sudden action of the water, such as a sudden change of 8 2 Tiffany, Real Prop. § 453 ; Foster t. Wright, 4 C. P. Div. 438 ; Welles V. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48. 9 Ante, §§ 56, 57. 10 Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186 ; Welles V. Bailey, 55 Conn. 292, 10 Atl. 565, 3 Am. St. Rep. 48 ; Gerrish v. Clough, 48 N. H. 9, 9T Am. Dec. 561, 2 Am. Rep. 165; Niehaus v. Shepherd, 26 Ohio St. 40. 11 Cobb V. Lavalle, 89 111. 331, 31 Am. Rep. 91 ; Town of Freedom v. Nor- ris, 128 Ind. 377, 27 N. E. 869 ; People v. Lambier, 5 Denio (N. Y.) 9, 47 Am. Dec. 273 ; Williams v. Baker, 41 Md. 523. 12 2 Tiffany, Real Prop. § 453; Belief ontaine Imp. Co. v. Niedringhaus, 181 111. 426, 55 N. E. 184, 72 Am. St. Rep. 269 ; Benne v. Miller, 149 Mo. 228, 50 S. W. 824. 13 2 Tiffany, Real Prop. § 454; Johnston v. Jones, 1 Black 209, 17 L. Ed. 117 ; Inhabitants of Deerfield v. Arms, 17 Pick. (Mass.) 41, 28 Am. Dec. 270 ; Batchelder v. Keniston, 51 N. H. 496, 12 Am. Rep. 143. See Mulry v. Nor- ton, 100 N. Y. 424, 3 N. E. 581, 53 Am. Rep. 206. But the application of this rule may be subject to modification in a particular case in view of peculiar circumstances. See Batchelder v. Keniston, supra; Thornton v. Grant, 10 R. I. 477, 14 Am. Rep. 701 ; Kehr v. Snyder, 114 111. 313, 2 N. B. 68, 55 Am. Rep. 866. MiNOE & W.Rbal Pbop.— 40 (625) § 815 TITLE BY ACCRETION— AVULSION. [Ch. 34 the course of the stream, or the violent tearing away of a body of land from its old position and lodging it in a new, the circum- stances being such that the land continues to be capable of identifi- cation, there is no change of ownership at all.^* Thus, if the mid-line of a stream is the boundary line between A. and B., a sudden change in the location of the stream, and a shifting of the middle line, will not affect the boundary, which remains at the old line.^^ § 816. Islands Newly Formed. The same distinction is to be noted here as in the case of accretions between islands created by avulsion and by a more slow and gradual process. If the island be formed by a sudden change in the course of a stream or its division into two beds, or by a sudden encroach- ment of the sea, etc., the soil remaining capable of identification as before, the ownership of the land does not change.^* But if the island be not so formed, but arises by a gradual pro- cess, howsoever slow and imperceptible, the island thus formed belongs to the owner of the bed of the stream, not to the riparian proprietors, unless they happen to own the bed upon which it is formed. If it be a public, or navigable, water, the water belongs to the public, and the new island follows the ownership of the bed. If the water be private, the bed is usually private also, and belongs to the riparian owner or owners. '^^ If the two banks of a private stream belong to different pro- prietors, since each as a general rule owns the bed to the middle line of the stream, an island formed in such a position that the filum fluminis runs through it will belong in part to one riparian owner and in part to the other; the dividing line being the pro- 14 St. Louis V. Rutz, 138 U. S. 226, 11 Sup. Ct. 357, 34 L. Ed. 941; Nebras- ka V. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186; Vogelsmeier v. Prendergast, 137 Mo. 271, 39 S. W. 83; Coulthard v. Davis, 101 Iowa, 625, 70 N. W. 716 ; Lyncli v. Allen, 20 N. G. 190, 32 Am. Dec. 672. 15 2 TifCany, Real Prop. § 453; Buttenuth v. St. Louis Bridge Co., 12S 111. 535, 17 N. E. 439, 5 Am. St. Rep. 54r, ; Rees v. McDaniel, 115 Mo. 145, 21 S. W. 913 ; Bouvier v. Stricklett, 40 Neb. 792, 59 N. W. 550. 18 2 Tiffany, Real Prop. § 455; Gould, Waters, § 166; Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 544 ; Bonewits v. Wygant, 75 Ind. 41. 17 Ante, § 56; 2 Min. Insts. 564; 3 Kent, Com. 428; St. Louis v. Rutz, 188 U. S. 226, 11 Sup. Ct. 357, 34 L. Ed. 941 ; Mulry v. Norton, 100 N. Y. 426, 3 N. E. 581, 53 Am. Rep. 212; Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 548; Perkins v. Adams, 132 Mo. 131, 33 S. W. 778; Cox v. Arnold, 129 Mo. 337, 31 S. W. 592, 50 Am. St. Rep. 450 ; McCullough v. Wall, 4 Rich. Law (S. C.) 68, 53 Am. Dec. 715 ; Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am. Dec. 280, note; Bellefontaine Imp. Co. v. Niedringhaus, 181 111. 426, 55 N. E. 184, 72 Am. St. Rep. 280, note. (626) Ch. 34] TITLE BY ACCRETION — ISLANDS NEWLY FORMED. § 816 longation of the filum fluminis.^' If the island be entirely on one side of the filum fluminis, it belongs altogether to the riparian owner who owns that side of the bed. It would seem logically to follow, the middle of the stream di- viding the lands of the opposite proprietors, that upon the creation of such an island the filum fluminis would shift, and thus the par- ty owning the island would incidentally shove forward his bound- ary line. And if we suppose the operation repeated, and new is- lands arising from time to time on the far side of the first, it might happen that these also would belong to the owner of the first, though they actually arise on the far side of the original boundary line.^» 18 3 Kent, Com. 428; Trustees of Hopkins Academy v. Dickinson, 9 Cush. (Mass.) 548 ; Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am. Dec. 280, note. i» Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am. Dec. 280, note. (637) CHAPTER XXXV. TITLE BY ADVERSE POSSESSION UNDER STATUTE OF LIMITATIONS. § 817. Origin of Statutes of Limitation as Applicable to the Recovery of Land. 818. "Continual Claim" as Prolonging the Period of Limitation. 819. Common-Law Doctrine That "Descent Tolls Entry." 820. Statute of Limitations a Source of Legal Title to Adverse Occupant as Well as a Bar to the Claimant. 821. Disabilities of Claimant as Prolonging the Statutory Period. 822. Same — Tacljing of Disabilities. 823. Nullum Tempus Occurrit Regi. 824. Nature of Occupant's Possession in General. 825. Duration of Occupant's Possession. 826. Continuity of Occupant's Possession. 827. Tacking of the Possession of One Occupant to That of Another. 828. 1. Death of First Occupant. 829. 2. Transfer by First Occupant. 830. 3. Disseisin of First Occupant. 831. Fraudulent Possession of Occupant. 832. Notoriousness of Occupant's Possession. 833. Exclusiveness of Occupant's Possession. 834. Hostile Character of Occupant's Possession. 835. Same — Occupation through Mistake as to Boundaries. 836. Adverse Possession Negatived in Certain Cases — Enumeration. 837. 1. Where the Parties Claim under the Same Title. 838. 2. Where the Possession of Occupant is Consistent with Claimant's Title. 839. 3. Where Occupant has Acknowledged Claimant's Title. 840. Actual and Constructive Possession of Occupant under Color of Title. 841. No Disseisin of one Whose Right of Possession Is Future. 842. Nature of Claimant's Entry in Order to Oust an Adverse Occupant. § 817. Origin of Statutes of Limitation as Applicable to the Re- covery of Land. From a very early period of the law — that is, from the twelfth century — probably in consequence of some nonextant statute or assize, in ancient time, as Coke expresses it, there was a limitation imposed on real actions, even on that most favored one, the writ of right, namely, that it should not avail to recover real property where the right of the claimant accrued prior to the time of Henry I, that is, the first year of his reign (A. D. 1100) ; after- wards, by 20 Henry III, c. 8, the limitation was reduced to the time of Henry II (A. D. 1154) ; and later still, by 3 Edw. I, c. 39, and 13 Edw. I, c. 46, to 1 Richard I (A. D. 1189), when after an inter- val so long as practically to interpose no limitation at all, by 32 Henry VIII, c. 2 (A. D. 1541), and 21 Jac. I, c. 16 (A. D. 1624), a (628) Ch. 35] ADVERSE POSSESSION DESCENT TOLLS ENTRY. § 819 period of years was fixed as a bar, not to writs of right only, but to most of the other remedies for things real ; so that, by one con- stant law, certain limitations might serve with equal convenience, both for the time present and for all times to come.^ And this policy has been ever since pursued, not only in the mother country, but also generally in the United States. § 818. "Continual Claim'" as Prolonging the Period of Limita- tion. At common law, if one is prevented by threats or violence L from entering on lands where he has a right of entry, and will maket his claim as near the premises as may be, and will repeat it from year to year, he does, at common law, by such continual claim, as it is called, keep alive his right of entry and of action.'' But this method of preventing the running of the statute has been expressly abolished in some of the states of this country, and in others the statutes are so broad in their terms as to have abol- ished it by necessary implication. § 819. Common-Law Doctrine That "Descent Tolls Entry." At common law, if a disseisor or other wrongdoer dies possessed of the land of which he became seised by his own unlawful act, and the same descends to his heir, the heir hath thereby obtained an ap- parent right, though the actual right of possession remains in the person disseised; but the latter cannot divest this apparent right by a mere entry, or other act of his own, but only by an action at law, for, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose an- cestor died seised, than in one who has no such presumptive evi- dence to urge in his own behalf. The descent, in such a case, is said to toll, or take away, the seisin, agreeably to the maxim "De- scensus tollit seisinam." ^ This doctrine arose from considerations connected with feudal policy, which was always solicitous to provide some one at hand to perform the feudal services, and to offer to the military vassal, as one of the strongest incentives to courage in battle, the assur- ance that, if he fell, his children or heirs would be, as to their in- heritance, better off even than himself, being exempt from all dan- ger of any eviction by sudden entry, or any otherwise than by the slow process of a real action.* This doctrine has been expressly done away with by some of our state statutes; but, upon principle, the reason for the rule no longer 1 2 Min. Insts. 568, 569 ; Bac. Abr. Limitations (B). 3 2 Min. Insts. 576 ; 2 Bl. Com. 316 ; 3 Bl. Com. 175. 8 Ante, § 135 ; 2 Min. Insts. 519 ; 2 Bl. Com. 196. *2 Min. Insts. 519; 2 Bl. Com. 196, 197; 3 Bl. Com. 176. (629) § 820 ADVEESE POSSESSION STATUTE OF LIMITATIONS. [Oh. 35 existing in this country, it would seem that it ought to have no ap- pHcation here. § 820. Statute of Limitations a Source of Legal Title to Ad- verse Occupant as Well as a Bar to Claimant. The statute of lim- itations, above described, is not only a defense which the occupant may interpose in bar of the plaintiff's action for the land, but it also constitutes a source of title to the occupant, to which he may appeal to sustain an action of ejectment brought by him as plain- tiff, whether against the rightful claimant or a third person, pro- vided the occupant's possession has been such as will cause the statute of limitations to have run in his favor.^ Thus, where one has been in honest, uninterrupted and adverse possession of the subject in question for the period prescribed by the statute as a bar, and is then deprived of the possession, he may found his title, upon his previous possession, and maintain an ac- tion for the subject accordingly. Lapse of time in such cases not only bars the remedy, but extinguishes the adversary's right'." § 821. Disabilities of Claimant as Prolonging the Statutory Pe- riod. Under the English statute, 21 Jac. I, c. 16, the infancy, cover- ture, imprisonment, or insanity of the disseisee existing at the time of the disseisin, or the fact that he was beyond the seas at that time, arrested the running of the statute. In this country, to ascertain what circumstances will arrest the running of the statute, the local statute must be consulted.'' A disability will not have the effect of prolongj,--ig the statutory period, unless it existed at the time the right of action accrued ; for, if the statute once begins to run, no supervening disability will stop it.» In the case of coparceners and tenants in common, since they may sue severally to recover their shares, if there be an ouster of 5 2 Min. Insts. 574. See cases cited infra. « 2 Min. Insts. 574 ; Stocker v. Berney, 1 Ld. Raym. 741 ; Barwick v. Thompson, 7 T. R. 492 ; Newby v. Blakey, 3 H. & M. 37, 66 ; Brent v. Chap- man, 5 Cr. 358, 361 ; Shelby v. Guy, 11 "Wheat. 361, 6 L. Ed. 495 ; Turpin v. Saunders, 32 Grat. (Va.) 27 ; Denn v. Barnard, Cowp. 597 ; Taylor v. Horde, 1 Burr. 60, 119, 126; Lefflngwell v. Warren, 2 Black, 605, 17 L. Ed. 261; Croxall V. Shererd, 5 Wall. 269, 289, 18 L. Ed. 572; Dickerson v. Colgrove, 100 U. S. 583, 25 L. Ed. 618 ; Bieknell v. Comstock, 113 U. S. 152, 5 Sup. Ct. 399, 28 L. Ed. 962; Campbell v. Holt, 115 U. S. 623, 6 Sup. Ct. 209, 29 L. Ed. 483. ^ For a compilation of the statutes, see 3 Washburn, Real Prop. (6th Ed.) p. 148. 8 Davis V. Coblens, 174 U. S. 719, 19 Sup. Ct. 832, 43 L. Ed. 1147 ; Castro V. Geil, 110 Cal. 292, 42 Pac. 804, 52 Am. St Rep. 84. (6.30). Ch. 35] ADVERSE POSSESSION NULLUM TEMPUS. § 823 all, the disability of one of the co-tenants does not preserve the ti- tle of another, but merely his own title." § 822. Same — Tacking of Disabilities. If a person labor under several disabilities when the cause of action accrued, he may avail himself of that which continues longest; but, when the period of liihitation prescribed by the statute once begins to run, it will con- tinue to do so, notwithstanding any supervening disability in the party himself or in another. Neither can a disability which arises after the title accrued be taken advantage of, though the later one occurs before the first is at an end ; or, as it is commonly expressed, one disability cannot be tacked to another.^" And where the claimant dies still under disability, and is suc- ceeded by another also under disability, the time for bringing the suit or making the entry is not thereby prolonged. The two dis- abilities cannot be tacked. ^^ § 823. Nullum Tempus Occurrit Regi. At common law, no lapse of time barred the king's title, the maxim of the law being "Nullum tempus occurrit regi." And so it is in this country, in respect to the claims of the state (and the federal government, al- so), except where it is otherwise provided by statute. '^^ But the ordinary statutory limitation will begin to run in favor of an adverse occupant as soon as the ownership of the land passes from the state to the state's grantee.^^ 9 2 Min. Insts. 575 ; Marsteller v. McLean, 7 Cr. 156 ; Doe v. Barksdale, 2 Brock. 444, 445, Fed. Cas. No. 8,317. 10 2 Min. Insts. 576; 2 Tiffany, Real Prop. § 439; Doe v. Barksdale, 2 Brock. 436, Fed. Cas. No. 8,317; Jackson v. Johnsoq/^ Cow. (X. Y.) 74, 15 Am. Dec. 433 ; North v. James, 61 Miss. 761 ; Demarest v. Wynkcjpp, 3 Johns. Ch. (N. Y.) 129, 8 Am. Dec. 476 ; Duckett v. Crider, 11 B. Mom (Ky.) 188 ; McFarland v. Stone, 17 Vt. 165, 44 Am. Dec. 825. But see Miller v. Bum- gardner, 109 N. 0. 412, 13 S. E. 935. 11 2 Min. Insts. 577 ; et seq. ; Pirn v. City of St. Louis, 122 Mo. 654, 27 S. W. 525 ; Henry v. Carson, 59 Pa. 297 ; Dowell v. Tucker, 46 Ark. 438. 12 2 Min. Insts. 575; Bac. Abr. Limitation; Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534; Kemp v. Com., 1 Hen. & M. (Va.) 85; Gore v. Lawson, 8 Leigh (Va.) 462; Nimmo v. Com., 4 Hen. & M. (Va.) 57, 4 Am. Dec. 488; Green v. Pennington, 105 Va! 805, 54 S. E. 877. 13 2 Tiffany, Real Prop. § 440; Smith v. McCorkle, 105 Mo. 135, 16 S. W. 602; Stringfellow v. Tennessee Coal, Iron & R. Co., 117 Ala. 250, 22 South. 997; Patten v. Scott, 118 Pa. 115, 12 Atl. 292, 4 Am. St. Rep. 576; Nichols V. Council, 51 Ark. 26, 9 S. W. 305, 14 Am. St. Rep. 20 ; Mathews v. Ferrea, 45 Cal. 51 ; Udell v. Peak, 70 Tex. 547, 7 S. W. 786. But the decisions are not in accord as to the time when such private ownership commences ; some holding that it does not begin until the issue of the patent, others that it begins as soon as the land is paid for and the individual becomes entitled to the patent 2 Tiffany, Real Prop. § 440. (631) § 823 ADVERSE POSSESSION NULLUM TEMPUS. [Ch. 35 According to the better view, since a municipal or quasi munic- ipal corporation is but the agent of the state, the same maxim ap- plies to these, and adverse possession will not give title as against them — at least, so far as relates to land held by them in their gov- ernmental and public capacity.^* It is otherwise as to land owned or claimed by them in their private capacity, such as gas works, water works, etc.^° § 824. Nature of Occupant's Possession in General. In order that adverse possession under the statute of limitations may operate as a bar to the claimant's right of entry or of action, and to vest a title to the land in the occupant, it is necessary (1) that the pos- session of the occupant, or of those claiming under or after him, should have lasted during the period prescribed by the statute ; (2) that such possession should meanwhile have been continuous and uninterrupted by any return of the land to the ownership of the claimant; (3) that the occupant's possession should have been free from fraud; (4) that it should have been visible and notori- ous; (5) that it should have been exclusive; (6) that it should have been hostile; and (7) that it should be actual, in general, though sometimes a constructive possession by the occupant un- der color of title (that is, under a paper title) will suffice.^* The possession, to give the occupant title, must embrace all of these elements ; the want of any one of them being fatal to his ti- tle. Thus, in Ward v. Cochran,^' the jury in an ejectment suit having brought in a special verdict to the effect that the defend- ant's possession of the land had been "open, continued, notorious and adverse" for the time required by the statute, the court held that, inasmuch as the jury had failed to find the possession to have 14 2 Tiffany, Real Prop. § 440; 2 Dillon, Munic. Corp. § 667 et seq. ; Almy V. Cliurch, 18 R. I. 182, 26 Atl. 58; Cheek r. City of Aurora, 92 Ind. 107; Webb V. City of Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 62; Ral- ston V. Town of Weston, 46 W. Va. 544, 33 S. E. 326, 76 Am. St. Rep. 834 ; Board of Education of City and County of San Francisco v. Martin, 92 Cal. 209, 28 Pac. 799 ; Kittaning Academy v. Brown, 41 Pa. 269. But see City of Covington v. McNiclile, 18 B. Mon. (Ky.) 262; Oxford Township v. Columbia, 38 Ohio St. 87 ; City of Fort Smith v. McKibbin, 41 Ark. 45, 48 Am. Rep. 19. 15 2 Dillon, Munic. Corp. § 675; Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005; City of Chicago v. Middlebrooke, 143 111. 265, 32 N. E. 457; City of Bedford v. Willard, 133 Ind. 562, 33 N. E. 368, 36 Am. St Rep. 563. 16 2 Min. Insts. 578, 579; 3 Th. Co. Lit. 4; Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195 ; Sulphur Mines Co. of Virginia v. Thomp- son, 93 Va. 294, 25 S. E. 232 ; Virginia Midland R. Co. v. Barbour, 97 Va. 118, 33 S. E. 5.54 ; Trotter v. Cassaday, 3 A. K. Marsh. (Ky.) 365, 13 Am. Dec. 185, note ; Love v. Shields, 3 Yerg. (Tenn.) 405. " 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195. (632) Ch. 35] ADVERSE POSSESSION — CONTINUITY. § 826 been exclusive and actual, it was an imperfect verdict, and a venire facias de novo should be awarded. § 825. Duration of Occupant's Possession. The duration of the adverse possession is prescribed by the statute of the state in which the land lies ; and it varies from five to thirty years. It may also vary in the same state according to circumstances.^' § 826. Continuity of Occupant's Possession. The possession of the occupant, or of those claiming under or after him, must contin- ue uninterruptedly during the statutory period. If there be an in- terruption, during which the possession of the original claimant, or those holding under him, is restored, or recognized as existing, after which interruption possession is resumed by the occupant, the running of the limitation period not only ceases during the period of the interruption, but ceases altogether, and the count must be begun anew upon the occupant's resumption of possession.^" Such a break in the continuity of the possession may occur up- on the occupant's abandonment of the premises ; ^" but the mere fact that the acts of possession are not continuous, day in and day out, or that there are cessations of actual occupancy, does not nec- essarily show an interruption of the possession, the consequences depending on the nature of the land and of the acts in question, and upon the circumstances of the particular case.^^ A break in the continuity of the possession may also arise from the actual ouster, or open and notorious acts amounting to an oust- er, of the occupant by the rightful owner, and his resumption of the possession of the occupied land, within the statutory period; ^^ or by the occupant's recognition of the true owner's right to the 18 3 Washburn, Eeal Prop. (6th Ed.) p. 148 et seq. 19 2 Min. Insts. 577; Kinney v. Beverley, 2 Hen. & M. (Va.) 318, 341; Tay- lor V. Burnsides, 1 Grat. (Va.) 165, 189, 202; Middleton v. Johns, 4 Grat. (Va.) 129 ; Old South Soc. v. Wainwright, 156 Mass. 115, 30 N. E. 476 ; Bliss V. Johnson, 94 N. 'Sp^So ; Armstrong v. Risteau, 5 Md. 256, 59 Am. Dec. 115 ; Ross V. Goodwin, 88 Ala. 390, 6 South. 682. 20 2 Min. Insts. 581 ; Taylor v. Burnsides, 1 Grat (Va.) 165, 201, 210 ; Hol- lingsworth v. Sherman, 81 Va. 674 ; Downing v. Mayes, 153 111. 330, 38 N. E. 620, 46 Am. St. Rep. 896; Stephens v. Leach, 19 Pa. 262; Nixon v. Porter, 38 Miss. 401 ; Sharp v. Johnson, 22 Ark. 79. 21 2 TifCany, Real Prop. § 437 ; Downing v. Mayes, 153 111. 330, 38 N. E. 620, 46 Am. St. Rep. 896 ; Hughs v. Pickering, 14 Pa. 297 ; Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137. 22 2 Min. Insts. 581; Taylor v. Burnsides, 1 Grat. (Va.) 165, 208, 210; Bow- en V. Guild, 130 Mass. 121 ; Altemus v. Campbell, 9 Watts (Pa.) 28, 34 Am. Dec. 494; Burrows v. Gallup, 32 Conn. 493, 87 Am. Dec. 186; Campbell v. Wallace, 12 N. H. 362, 37 Am. Dec. 219. (633) § 827 ADVERSE POSSESSION TACKING. [Ch. 35 possession ; ^^ or by the owner's recovery of the land in the action of ejectment.^* § 827. Same — Tacking of the Possession of One Occupant to That of Another. If an occupant, before he has been in possession of the land as against the true owner for the full statutory period, dies or transfers his interest in the land to another, or is disseised by a third person, a question is at once presented whether the suc- cessor to the first occupant is entitled to have the possession of the first occupant counted in with his own, or "tacked," in order to hasten the vesting of the title by adverse possession under the statute of limitations. Various considerations are to be looked to in answering these questions, and it is advisable to take up the cases above presented in succession; the general principle being that the two possessions, to be tacked, must be in privity or connected. ^^ § 828. Same — 1. Death of First Occupant. It appears to be conceded that if, upon the occupant's death, his heir or devisee im- mediately enters and takes possession of the land, his possession may be tacked to that of his ancestor or testator, so that the two periods may be reckoned as one in estimating the duration of the adverse possession.^* So the widow of the occupant, being entitled to quarantine,^' and an immediate entry upon the land for that purpose, may "tack" such possession to the possession of her deceased husband.^* But it is said to be otherwise with respect to the ordinary dower rights of the widow, because of the break of continuity between the hus- band's death and the time of the assignment of her dower.^" It .23 2 Tiffany, Real Prop. § 437; Warren v. Bowdran, 15G Mass. 280, 31 N. B. 300 ; Ingersoll v. Lewis, 11 Pa. 212, 51 Am. Dec. 536 ; Williams v. Scott, 122 N. C. 545, 29 S. E. 877 ; Lovell v. Frost, 44 Cal. 471. 24 2 Tiffany, Real Prop. § 437 ; Moore v. Greene, 19 How. 69, 15 L. Ed. 533 ; Bishop v. Truett, 85 Ala. 376, 5 South. 154 ; Smith v. Hornback. 4 Lltt. (Ky.) 232, 14 Am. Dec. 122 ; Gould v. "Carr, 33 Fla. 523, 15 South. 259, 24 L. R. A. 130; McGrath v. Wallace, 85 Cal. 622, 24 Pac. 793; Mabary v. Dollarhide, 98 Mo. 198, 11 S. W. 611, 14 Am. St. Rep. 639. 2 Holtzman v. Douglas, 168 U. S. 278 ; 18 Sup. Ct. 65, 42 L. Ed. 466 ; John- ston V. Case, 131 N. C. 491, 42 S. E. 957. See Hollingsworth v. Sherman, 81 Va. 674. 28 2 Tiffany, Real Prop. § 438; Haynes v. Boardman, 119 Mass. 414; Saw- yer V. Kendall, 10 Cush. (Mass.) 241; McNeely v. Langan, 22 Ohio St. 32; Overfield v. Christie, 7 Serg. & R. (Pa.) 173 ; Fugate v. Pierce, 49 Mo. 441. 27 Ante, § 300. 28 Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157. See Hulvey v. Hulvey, 92 Va. 182, 185, et seq., 23 S. B. 233. 29 2 Tiffany, Real Prop. § 438; Sawyer v. Kendall, 10 Cush. (Mass.) 241; Robinson v. Allison, 124 Ala. 325, 27 South. 461. But see Mill v. Bodley, 4 T. B. Men. (Ky.) 248 ; Hickman v. Link, 97 Mo. 482, 10 S. W. 600. (634) Ch. 35] ADVERSE POSSESSION — PEATJDULENT POSSESSION. § 83l will be remembered, however, that upon assignment the widow takes, by relation, as from her husband's death. ^^ § 829. Same — 2. Transfer by First Occupant. Upon a trans- fer of his rights (such as they are) by the first occupant to a sec- ond, who immediately enters and continues the possession with- out a break, the weight of authority, though perhaps not of reason, is in favor of the latter's right to "tack" his possession to that of his grantor; ^^ yet, rather inconsistently, it is quite generally held that the transfer, not being of any actual legal interest in the land, need not conform to the statute of frauds, and may be oral.'^ It would seem upon principle that, if the transfer of the first occu- pant's potential title by adverse possession should avail his gran- tee to hasten the vesting of his own title by adverse possession, it should be regarded as a sufficiently valuable interest in the land to require its transfer to conform to the statute regulating the trans- fer of interests in land, or, per contra, if the transfer passes no in- terest in the land, it should create no privity between the parties and should be given no effect in hastening the running of the stat- ute of limitations.^^ § 830. Same — 3. Disseisin of First Occupant. However it may be where there is a contractual connection between the successive occupants, such as has just been considered, it seems to be quite generally conceded that, if the first adverse occupant is disseised by his successor, the latter, for want of privity, cannot tack the dis- seisee's possession to his own.'* § 831. Fraudulent Possession of Occupant. A fraudulent pos- session can prove nothing as to the proper right of the party who insists on such possession, or as to any presumed relinquishment of the adverse claimant. It is an acknowledged principle, at least 30 Ante, § 250. See Hulvey v. Hulvey, 92 Va. 182, 23 S. E. 233. 31 Frost T. Courtis, 172 Mass. 401, 52 N. E. 515; Overfield v. Christie, 7 Serg. & R. (Pa.) 173 ; McNeely v. Langan, 22 Ohio St. 32 ; Gage v. Gage, 30 N. H. 420. But see Garrett v. Weinberg, 48 S. C. 28, 26 S. B. 3. 32 2 Tiffany, Real Prop. § 438; Hughs v. Pickering, 14 Pa. 297; McNeely V. Langan, 22 Ohio St. 32 ; Com. v. Gibson, 85 Ky. 666, 4 S. W. 453 ; Davock V. Nealon, 58 N. J. Law, 21, 32 Atl. 675. 3 3 See Sawyer v. Kendall, 10 Cush. (Mass.) 241; Ward v. Bartholomew, 6 Pick. (Mass.) 409. See, also, Hulvey v. Hulvey, 92 Va. 182, 23 S. E. 233. 34 2 Tiffany, Real Prop. § 438 ; Sawyer v. Kendall, 10 Cush. (Mass.) 241 ; Lucy V. Tennessee & C. R. Co., 92 Ala. 246, 8 South. 806 ; Erek v. Church, 87 Tenn. 580, 11 S. W. 794, 4 L. R. A. 641 ; Jarrett v. Stevens, 36 W. Va. 445, 15 S. B. 177 ; San Francisco v. Fulde, 37 Cal. 349, 99 Am. Dec. 278. But see Davis V. McArthur, 78 N. C. 357 ; Scales v. Cockrill, 3 Head. (Tenn.) 432. (635). § 832 ADVERSE POSSESSION NOTORIOUSNESS. [Oh. 35 in courts of equity, that in cases of fraud the statute of limitations commences not to run, in general, until the fraud is discovered.^'* § 832. Notoriousness of Occupant's Possession. It is by no means the purpose of the statute of limitations to permit one man to deprive another of his land by fraud and chicanery, or by acts of ownership exercised in secret, so that the owner might not reason- ably be expected to know of the adverse claim. On the contrary, it is well established that the occupant's entry upon the land must be followed by acts of ownership, sufficiently pronounced and con- tinuous in character to charge the owner with notice of the occu- pant's adverse claim, such as continued residence on the land, or the cultivation and improvement thereof, or in some cases the build- ing of fences, or in the case of wild mountain lands acts perhaps even less pronounced.^" The character of the acts necessary to give to the party the sei- sin required must, of course, vary with the situation of the land and the condition of the country. In a settled and cultivated region, an actual occupation and pernancy of the profits may be requisite; whilst in the wilderness a possession less definite might suffice, if it appeared that the property was not susceptible of a stricter oc- cupation. But it must always be an actual, visible, notorious and continued possession. And hence wild and uncultivated lands, re- maining completely in a state of nature, cannot be the subject of adversary possession. If such notoriety and continuousness of sei- sin in the adverse claimant were not demanded, any proprietor of vacant lands might be disseised and deprived of his lands without his knowledge or the possibility of protecting himself.'^ Such being the character of adversary possession, it has been made a question whether such possession can be had of lands cov- ered with water. There is no doubt, however, that acts of owner- 3B2 Min. Insts. 578; 2 Story, Eq. Jur. §§ 1521, 1521a; Hunter jc^Spots- wood, 1 Wash. (Va.) 145; Kane v. Bloodgood, 7 Johns. Ch. (N.V30 122, 11 Am. Dec. 417 ; Kitty v. Pltzhugh, 4 Rand. (Va.) 600 ; Evans v. ^urgln, 11 Grat. (Va.) 623 ; Rowe v. Bentley, 20 Grat. (Va.) 760 ; Massle y. Heiskell, 80 Va. 789, 804 ; Badger y. Badger, 2 Wall. 92, 17 L. Ed. 836. 8 2 Min. Insts. 580; Overton y. Davisson, 1 Grat. (Va.) 217, 42 Am. Dec. 544; Lusk v. Pelter, 101 Va. 790, 45 S. E. 333; Alabama State Land Co. y. Kyle, 99 Ala. 474, 13 Soutli. 43 ; Susquehanna & W. Val. Railroad & Coal Co. V. Quick, 68 Pa. 189; Congdon y. Morgan, 14 S. C. 587; Brumagin v. Brad- shaw, 39 Cal. 24. 50 ; Ewing v. Burnet, 11 Pet. 53, 9 L. Ed. 624 ; Barclay y. Howell, 6 Pet. 513, 8 L. Ed. 477. See cases cited infra. 37 2 Min. Insts. 580, 581 ; Overton y. Davisson, 1 Grat. (Va.) 217, 225, 42 Am. Dec. 544 ; Lusk v. Pelter, 101 Va. 790, 45 S. E. 333. See Roy^ll v. Lisle, 15 Ga. 545, 60 Am. Dec. 712; La Frombois y. Jackson, 8 Cow. (N. Y.) 604, 18 Am. Dec. 463 ; Ewing y. Burnet, 11 Pet. 41, 9 L. Ed. 624. (636) Ch. 35] ADVERSE POSSESSION EXCLUSIVENESS. § 833 ship may be habitually and notoriously exercised in respect to lands so situated, as by staking them off, insisting upon the exclusive right to use and enjoy them, and in other like ways, and so an ad- versary possession may be established.^* On the other hand, the mere sporadic and occasional entry up- on the land for the purpose of surveying the same, or of cutting and sawing timber, the possession being transient, is not enough to operate a disseisin of the rightful owner; nor, if it were, is it such continuous, exclusive, and notorious possession as can by it- self support a claim of title in opposition to the superior title of the true owner.'" Finally, it is to be observed that, if the occupant's possession was begun in privity with the rightful claimant, a higher degree of notoriety must attach to the possession than would be demand- ed if there were no such relation between the parties ; for the priv- ity is itself an explanation of the possession, and the rightful own- er is not bound to seek another, unless notice of the fact of the dis- loyal severance of the privity be brought home to him. Hence, in such case, there must be a clear, positive, and continuous disclaim- er and disavowal of the title of the rightful owner, and the asser- tion of an adverse right brought home to the adverse claimant. The possession must have become tortious and unlawful by the dis- loyal acts of the party in possession, so open, notorious and con- tinued as to show fully and clearly the changed character of his possession and notice thereof to the rightful claimant. This prin- ciple is applicable, for example, as between vendor and vendee un- der an imperfect contract of sale, as between landlord and tenant, grantor and grantee (the grantor remaining in possession), and other cases of the same sort.^" § 833. Exclusiveness of Occupant's Possession. It is one of the essentials of adverse possession that it be exclusive — that is, that it exclude and deny all idea of ownership either in the true owner or in a third person ; *^ of the true owner, because, if he is also in 88 2 Min. Insts. 581; Power v. Tazewells, 25 Grat. (Va.) 786; Norfolk City V. Cooke, 27 Grat. (Va.) 436, 437. See Austin v. Minor, 107 Va. 101, 57 S. E. 609. 38 2 Min. Insts. 580; Dawson v. Watkins, 2 Eob. (Va.) 259, 269; Pasley v. Bnglish, 5 Grat. (Va.) 141, 152, 157 ; Denham v. Holeman, 26 Ga. 182, 71 Am. Dec. 198; Parker v. Wallis, 60 Md. 15, 45 Am. Kep. 703; Wheeler v. Winn, 53 Pa. 122, 91 Am. Dec. 186 ; Williams v. Wallace, 78 N. C. 354. *o Day V. Cochran, 24 Miss. 261 ; Clarke v. McClure, 10 Grat. (Va.) 305 ; 3 Washburn, Real Prop. (6th Ed.) § 1975 ; Aug. Lim. 401. *iWard V. Cochran, 150 U. S. 597, 14 Sup. Ct 230, 37 L. Ed. 1195; Vir- ginia Midland R. Co. v. Barbour, 97 Va. 118, 33 S. E. 554 ; Collins v. Lynch, (637) § 833 adVbese possession — bxcltjsivbnbss. [Ch. 35 possession, or has a right to the possession, the possession of an- other would in law be regarded either as a trespass merely, or as in the exercise of a license, neither of which theories would give rise to an adverse possession;*^ and of third persons, because if he permits others also to exercise acts of ownership upon the land (except as his tenants or licensees) he is asserting a title not in him- self, but in the public.*' On the other hand, it is to be observed that a grantee under an invalid transfer, who is in actual and exclusive possession of an entire tract for the requisite period, takes a title to the entire tract By adverse possession, exclusive of the rights of others who were tenants in common with his grantor, provided the grantor has con- veyed to him the whole tract, and not merely his individual in- terest therein.** § 834. Hostile Character of Occupant's Possession. As no one can be barred by the statute of limitations unless he is out of pos- session, and as the possession of one claiming under another is considered as in fact the possession of the latter, it follows that, in order to plead the statute of limitations successfully, the posses- sion must be adverse to that of the true owner under some claim of right such as will exclude any recognition of the latter's rights. It is not necessary, however, that there should be color of title (that is, written evidence of title, such as a deed, a patent from the state, etc.).*^ It is immaterial whether the claim of right be true or false, good or bad, in the first instance ; but if there be a mere claim, without color of title, the adverse holding of the occupant is always con- 167 Pa. 635, 31 Atl. 921; Cahill v. Palmer, 45 N. T. 478; Goodson v. Broth- ers, 111 Ala. 589, 20 South. 443. '^ 42 2 Tiffany, Real Prop. § 442; Bellis v. Bellis, 122.JMass. 414; O'Hara v. Richardson, 46 Pa. 385 ; Brown v. Chicago, B. & K. C. Ry. Co., 101 Mo. 484, 14 S. W. 719. Y ' *3 2 Tiffany, Real Prop. § 442 ; Kneller v. Lang, 137 N. Y. 589, 38 N. E. 555; Burrows v. Gallup, 32 Conn. 493, 87 Am. Dec. 186; Gittings v. Moale, 21 Md. 135. ■tt Preston v. Virginia Mining Co., 107 Va. 248, 57 S. E. 651 ; Rlcker v. But- ler, 45 Minn. 545, 48 N. W. 407. 45 2 Min. Insts. 578; Coalter v. Hunter, 4 Rand. (Va.) 58. 15 Am. Dec. 726; City of Boston v. Richardson, 105 Mass. 372. The phrase "claim of title" is to be distinguished from "color of title" in this connection ; the lat- ter applying only to that particular sort of claim which is based upon some written muniment of title, it being imniaterlal whether It be valid or void. See Sulphur Mines Co. of Virginia v. Thompson, 93 Va. 294, 25 S. E. 232 ; Nelson v. Davidson, 160 III. 254, 43 N. E. 361, 31 L. R. A. 325, 52 Am. St. Rep! 338 ; McMullin v. Erwin, 58 Ga. 427. (638) ■Ch. 35] ADVERSE POSSESSION — MISTAKE AS TO BOUNDARIES. § 835 fined to that portion of the land actually occupied.*" On the oth- er hand, if the adverse possession be under color of title, the pos- session may, under certain circumstances, extend beyond the lim- its of the land actually occupied, and may embrace all the land cov- ered by the deed or other muniment of title under which the occu- pant claims.*'' § 835. Same — Occupation through Mistake as to Boundaries. If one, either of set purpose or with entire indifference to the rights of his neighbor, builds upon or otherwise occupies openly and no- toriously his neighbor's land, there is no doubt but that this con- stitutes an adverse possession which will ripen after the lapse of the statutory period into a perfect legal title. *^ But if he is acting through a bona fide mistake as to his bound- aries, honestly believing that he is upon his own land, and without any intention of ousting his neighbor, the question is more difficult of solution, as where he builds a few inches over his neighbor's line by mistake, believing he is on his own lot. The solution depends upon the intention with which the posses- sion is taken and held. If the intention be to take and hold the land at all events, whether it belong to the occupant or not— that is, to oust any adverse claimant, if necessary — the case comes under the first instance above described, and the possession would clear- ly be adverse. **• But if the occupant have no such intention in his mind, but only the intention to use and enjoy his own property in a proper and lawful way, the courts are divided as to whether this constitutes the possession adverse.^" 46 Virginia Midland R. Co. v. Barbour, 97 Va. 122, 33 S. E. 554 ; Poignard V. Smitti, 8 Pick. (Mass.) 272 ; 3 Washburn, Real Prop. (6tb Ed.) § 1967. 47 Post, § 840 et seq. 48 2 Tiffany, Real Prop. § 443 ; Brock v. Bear, 100 -Va. 565, 42 S. E. 307 ; McMurray v. Dixon, 105 Va. 605, 611, 54 S. E. 481; Pinch v. Ullman, 105 Mo. 255, 16 S. W. 863, 24 Am. St. Rep. 383, note ; Taylor v. Fomby, 116 Ala. 621, 22 South. 910, 67 Am. St. Rep. 149 ; Watrous v. Morrison, 33 Pla. 261, 14 South. 805, 39 Am. St. Rep. 139; Wilson v. Hunter, 59 Ark. 626, 28 S. W. 419, 43 Am. St. Rep. 63 ; Grube v. Wells, 34 Iowa, 148 ; Preble v. Maine Cen- tral R. Co., 85 Me. 260, 27 Atl. 149, 21 L. R. A. 829, 35 Am. St. Rep. 366. 49 See authorities cited supra. 50 Authorities holding that the innocence of the possession is immaterial, provided it be actual and visible, are Tolman v. Sparhawk, 5 Mete. (Mass.) 469; Crary v. Goodman, 2'2S^Y. 170; French v. Pearce, 8 Conn. 439, 21 Am. Dec. 680 ; Burnell v. Maloney, 39 Vt. 579, 94 Am. Dec. 358 ; Metcalfe v. Mc- Cutchen, 60 Miss. 145 ; Yetzer v. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122 ; Greene v. Anglemire, 77 Mich. 168, 43 N. W. 772 ; Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522 ; Ramsey v. Glenny, 45 Minn. 401, 48 N. W. 322, 22 Am. St. Rep. 736; Levy v. Xerga, 25 Neb. 764, 41 N. W. 773, 13 Am. St. Rep. 525. The following cases require the possession, in order that it be considered ad- (639) § 835 ADVERSE POSSESSION MISTAKE AS TO BOUNDARIES. [Ch. 35 It may be observed, also, in this connection, that if two adjacent landowners, whose boundary line is in dispute, agree orally upon a line, by way of compromise, and they take and hold possession up to that line for the statutory period, the mere possession will in time ripen into a title by adverse possession; but since neither party can disclaim to hold the freehold acquired under his deed, or transfer the same to another, save by deed, will, or in a court of record, the parties can in a court of law acquire no title by virtue of the parol agreement itself, nor in any way alter the rights al- ready vested in them under their respective deeds. °^ It would seem, however, upon principle, that in equity such an agreement, though by parol, being partly performed by the surrender of the posses- sion, should be regarded as transferring mutually the equitable ti- tle up to the boundary line agreed upon, at least as between the parties. But if the dispute as to the boundary line has originated by rea- son of the ambiguous language of the deeds conveying the land, one interpretation locating the boundary line at one place, anoth- er interpretation locating it elsewhere, and the agreement of the parties determines at which of these places it is to be located, mere- ly interpreting the ambiguous language of the deeds, the agreement in such case is very generally held not to involve a transfer of the title to land, and hence the boundary line becomes fixed by such agreement, though it be merely oral.^^ verse, to be with the intent of claiming to the assumed boundary, even though that boundary be incorrect: Ayers v.t Reidel, 84 Wis. 276, 54 N. W. 588; Mills V. Penny, 74 Iowa, 172, 37 N. "^ 135, 7 Am. St. Rep. 474 ; Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138 ; McCabe v. Bruere, 153 Mo. 1, 54 S. W. 450; Chance v. Branch, 58 Tex. 490; Caufleld v. Clark, 17 Or. 473, 21 Pac. 443, 11 Am. St. Rep. 845 ; and the cases cited in previous note. Bi McMurray v. Dixon, 105 Va. 611, 54 S. E. 481 ; Fry v. Stowers, 98 Va. 417, 36 S. E. 482 ; buttle v. Richmond, F. & P. R. Co., 76 Va. 284, 286 ; Wa- trous v. MorrisouysS Fla. 261, 14 South. 803, 39 Am. St. Rep. 139;- Vosburgh v. Teator, 32 N/ Y. 561; Nichol v. Lytle, 4 Yerg. (Tenn.) 456, 26 Am. Dec. 240; Olin v. Hfenderson, 120 Mich. 149, 79 N. W. 178; Gayheart v. Cornett, 42 S. W. 730, 19 Ky. Law Rep. 1052 ; Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Lennox v. Hendricks. 11 Or. 33, 4 Pac. 515. 62Watrous v. Morrison, 33 Fla. 261, 14 South. 805, 39 Am. St. Rep. 139; Brummell v. Harris, 148 Mo. 430, 50 S. W. 93; St. Bede College v. Weber, 1G8 111. 324, 48 N. E. 165; O'Donnell v. Penney, 17 R. I. 164, 20 Atl. 305; Lindsay v. Springer, 4 Har. (Del.) 547; Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. 880; Clark v. Hulsey, 54 Ga. 608; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731; Pittsburg & L. A. Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395 ; Helm v. Wilson, 76 Cal. 476, 18 Pac. 604 ; Archer V. Helm, 69 Miss. 730, 11 South. 3 ; Glen Mfg. Co. v. Weston Lumber Co. (C C.) 80 Fed. 242. (640) Ch. 35] ADVERSE POSSESSION CONSISTENT WITH TITLE. § 838 § 836. Adverse Possession Negatived in Certciin Cases — Enu- meration. The adverse character of a possession, though it be long continued, may be negatived by the existence of certain circumstan- ces, which, either as matter of law or matter of fact, take the case outside the realm of adverse possession. These cases may be enumerated as follows : (1) Where the par- ties claim under the same title; (2) where the possession of one party is consistent with the title of the other; (3) where the oc- cupant has acknowledged the claimant's title. § 837. Same— 1. Where the Parties Claim under the Same Ti- tle. The instances falling under this head are derived chiefly from England, our own cases affording few or none. Thus, if a father die seised in fee, leaving two sons, and his younger son enters to the prejudice of the elder, and before him, although it amounts prop- erly to an ouster of the elder by abatement, yet the statute does not operate against the elder son, because the law presumes that the younger entered, claiming the land as heir to his father, in or- der to preserve the inheritance in the family, and not as designing a wrong to his brother, and so his possession is the possession of the elder, who claims by the same title. ^^ So, also, if a sister enters upon the land descended from her fa- ther, before her brother, the legal heir, can do so, and remain in possession more than the time prescribed by the statute of limita- tions, yet will it not avail her for a like reason, because the law will intend that she entered as heir to the father, to preserve the inheritance, and not adversely to the brother, who claiming by the same title, her possession enures as his.^* It must be observed that in both of these cases, if the lawful heir enters, and then is ousted by the younger brother or sister, it would be irripossible to assign so charitable an interpretation to his act, and the possession of the wrongdoer is adverse. ^^ § 838. Same — 2. Where the Possession of Occupant Is Con- sistent with Claimant's Title. This is the case where the posses- sion of one is the possession of the other, as in the instance of agent relatively to the principal, or of a tenant in respect to his landlord ; or where the estate of the party in possession and that of the claim- ant form dififerent parts of one and the same estate, as in the in- stance of a particular tenant and the remainderman ; or where the relation of trustee and cestui que trust, or of mortgagor. and mort- gagee, or of vendor and vendee, or of co-tenancy, subsists between the parties. B3 2 Min. Insts. 583 ; 3 Th. Ck). Lit. 47, 48, note (Y), 50 et seq. 64 2 Min. Insts. 583. 55 2 MIn. Insts. 583; 3 Th. Co. Lit. 50. Minoe&W.RbalPbop.— 41 (641) § 838 ADVERSE POSSESSION CONSISTENT WITH TITLE. [Ch. 35 But in all such cases this consistency of the possessions of each lasts only so long as the possessions are not distinctly antagonistic, and immediately upon a clear, positive, and open disclaimer or dis- avowal by the occupant that he is holding in privity with the true owner the possession becomes adverse.''^ And it will be remembered that in case of co-tenants, whether joint tenants, tenants in common, or co-parceners, notwithstand- ing the general rule that the possession of one is the possession of all, yet the possession of one such tenant may become adverse to the others, upon an actual ouster of them or any other act amount- ing to a total denial of the rights of the others as co-tenants. ^^ So the possession of a lessee is that of the lessor, as long as the lease subsists, and that although no rent be paid ; but when the rent is not a merely nominal one, the omission to pay it, or to make any other acknowledgment of a tenancy for a great number of years, might be evidence of an adverse possession.^* § 839. Same — 3. Where Occupant Has Acknowledged Claim- ant's Title. Where the occupant has acknowledged title to be in the claimant during the statutory period, the possession of the oc- cupant is not deemed adverse; the acknowledgment negativing such a conclusion.^" § 840. Actual and Constructive Possession of Occupant under Color of Title. While, in order that an occupant's possession may ripen into a legal title under the statute of limitations, it is a gen- eral rule that his possession must be actual, and that a mere con- structive possession (arising from the possession of a deed or other paper title describing the boundaries of the land claimed thereun- der), though for the statutory period, will not suffice,'"' yet an actual possession of part of the land in dispute may sometimes aid a con- B6 2 Min. Insts. 583; 3 Washburn, Real Prop. (6tli Ed.) § 1976; Clarke v. JfcCIure, 10 Grat. (Va.) 305 ; Day v. Cochran, 24 Miss. 261. See ante, §§ 832, 727, 758, 771. OT Ante, §§ 727, 758, 771 ; 2 Mln. Insts. 473, 499, 505. 58 2 Mln. Insts. 584. 50 2 Miii. Insts. 585; Roe v. Farrars, 2 Bos. & P. 546; Hatcher v. Fineaux, 1 Ld. Raym. 740 ; Jackson v. Sears, 10 Johiis. (N. Y.) 435, 441 ; Hunt v. Hunt, 3 Mete. (Mass.) 375, 37 Am. Dec. 138T Burghardt v. Turner, 12 Pick. (Mass.) 534 ; Piatt v. Vattier, 9 Pet. 416, 9 L. Ed. 173. 00 2 Mln. Insts. 579, 580; 2 Tiffany, Real Prop. § 441; Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195; White v. Burnley, 20 How- 235, 15 L. Ed. 886 ; Lipscomb v. McClellan, 72 Ala. 151 ; Walker v. Hughes, 90 Ga. 52, 15 S. B. 912 ; Christy v. Spring Valley Water Works, 97 Cal. 21, 31 Pac. 1110. Possession may sometimes be constructive only. Thus, when the commonwealth grants lands to a first patentee. It puts him constructively into possession, notwithstanding at the time of the emanation of the patent there was an actual occupation of the premises by another person; for sucli (642) Ch. 35] ADVERSE POSSESSION ACTUAL AND CONSTRUCTIVE. § 840 structive possession of the rest, so as to permit the adverse oc- cupant to acquire title to the whole after the lapse of the statutory period. In other vvords, as a common-law principle, the actual posses- sion of a part of a tract of land in dispute, claimed under a paper title (that is, under color of title), may sometimes be construed as a possession of the whole tract, so as to give the occupant a ti- tle thereto after the statutory period, upon the principle that one who has notice of an actual adverse occupancy of part of his land under a claim based upon a written document defining the bound- aries claimed is also chargeable with notice that the claim is lim- ited only by the terms of the document itself, supposing the bound- aries to be described therein with sufficient accuracy to identify them ; the validity of the document being immateriaL^^ Such notice, however, cannot be reasonably charged to the first grantee unless the adverse claimant actually occupies part of the land owned by the former; for he cannot be supposed to be put upon inquiry by reason of the fact that the adverse claimant is in actual possession of his own land or of that of a third person, but only where he is in occupancy of the land of the first grantee. Hence the junior grantee must be in actual possession of part of the land in dispute (the "interlock," as it is called), in order that the person's possession (as the commonwealtli is incapable of being disseised) cannot be adversary. And sucli elder patentee's seisin continues until some one actually enters by a pedis positio under an adverse claim of title, when, the grantee being dispossessed, the statute of limitations begins to run against him, and in a competent time, if the actual adversary possession continues, will bar his claim ; but a junior grant from the commonwealth does not of itself have the effect of determining the first patentee's constructive seisin. Hence, where a patentee of the commonwealth, having no actual, but only the constructive, seisin arising from the commonwealth's grant, brings an ac- tion against an occupant of the land who claims title by possession, it is com- petent to the defendant to prove a prior commonwealth's grant (although he has no privity with the grantee therein), because that defeats the plaintiff's constructive seisin, by an adverse constructive seisin in the first patentee, and so destroys all title to recover of the occupant, the plaintiff having nei- ther actual nor constructive possession. 2 Min. Insts. 579, 580. This is sim- ply an application of the well-settled rule that a plaintiff in ejectment must recover on the strength of his own title, and cannot rely on the weakness of the -defendant's. Hehee a defendant in ejectment may always defend by showing an outstanding paramount title in a third person, unless his entry was in privity with the plaintiff, or they both claim from the same source. 61 Koiner v. Rankin, 11 Grat. (Va.) 427*; Sharp v. Shenandoah Furnace Co., 100 Va. 27, 40 S. E. 103 ; Green v. Pennington, 105 Va. 801, 54 S. E. 877 ; Wright V. Mattison, 18 How. 50, 15 L. Ed. 280 ; Carter v. Chevalier, 108 Ala. 563, 19 South. 798; Reddick v. Long, 324 Ala. 260, 27 South. 402; Ellington V. Ellington, 103 N. C. 54, 9 S. E. 208 ; Davis v. Stroud, 104 N. C. 484, 10 S. E. 666; Jackson y. Woodruff, 1 Qow. (N. Y.) 276, 13 Am. Dec. 525. \i (643) § 840 ADVERSE POSSESSION ACTUAL AND CONSTRUCTIVE. [Ch. 35 principle "possession of part is the possession of the whole" shall apply. ''^ Moreover, the constructive possession is dependent for its efifect upon the actual possession of part of the land in dispute, and con- tinues or fails with it. Consequently, if the occupant conveys that part of the tract which constituted his actual possession, but not the whole tract, he loses his constructive possession of the residue, unless he takes actual possession of some part thereof, or, rather, he loses the benefit that might attach to a constructive possession aided by an actual possession of part.*' At common law, the application of these principles seems to be confined to those cases where the rightful owner (the senior gran- tee) has no actual possession of any part of his tract ; for .the prin- ciples apply equally to both grantees, and the actual possession of part of his tract by the rightful owner constitutes on his part also a constructive possession of the whole. And as between the two constructive possessions of that part of the land in dispute (the interlock) not actually occupied by either, the senior grantee, hav- ing the eldest, as well as the rightful, seisin, should prevail, thus confining the junior grantee to that part of the interlock actually occupied by him.** But if the senior grantee be not in actual possession of any part of his tract, the common-law principle above mentioned applies, and the junior grantee's actual possession of part of the interlock will aid his constructive possession of the remainder, so as to make it superior to the purely constructive possession of the senior gran- tee, thus giving the junior grantee adverse possession of the whole interlock, which, if held long enough, will ripen into a perfect title. °* § 841. No Disseisin of One whose Right of Possession is Future. It is universally true at the present day that the statute of limita- tions does not begin to run against any person until a right of ac- tion has accrued to him. Hence no disseisin of a life tenant can af- 6 2 Taylor v. Burnsides, 1 Grat. (Va.) 1G5, 191, 192; Koiner v. Hankin, 11 Grat. (Va.) 420 ; Green v. Pennington, 105 Va. 801, 54 S. E. 877 ; Garrett v. Ramsey, 26 W. Va. 345 ; Hole v. Rittenhoiise, 2.3 Pa. 401 ; Turner v. Stephen- son, 72 Mich. 409, 40 N. W. 735, 2 L. R. A. 277 ; Bailey v. Carletou, 12 N. H. 9, 37 Am. Dec. 190. See 2 Tiffany, Real Prop. § 444. 6 3 ShJirp V. Shenandoah Furnace Co., 100 Va. 33, 40 S. E. 103; Trott«r v. Cassady, 3 A. K. Marsh. (Ky.) 365, 13 Am. Dec. 183; West v. McKinney, 92 Ky. G38, 18 S. W. 633; Cunningham v. Robertson, 1 Swan (Tenn.) 138; Chandler v. Rushing, 38 Tex. 591. • 6 4 Green v. Liter, 8 Cr. 229; Hunt v. Wickliflfe, 2 Pet. 201, 7 L. Ed. 307; Hunnicutt v. Peyton, 102 U. S. 333. 369, 26 L. Ed. 113. 6 5 Overton v. Davisson, 1 Grat. 223, 224, 42 Am. Dec. 544; Green v. Pen- nington, 105 Va. 804, 54 S. E. 877; 3 Washburn, Real Prop. (6th Ed.) § 1982 •et seq. (C44) Ch. 35] ADVERSE POSSESSION — NATUEB OF ENTRY TO OUST. § 842 feet the reversioner or remainderman, until the termination of the life estate.^" So, also, in the case of a future contingent limitation, whether by way of remainder or executory limitation, since the party's title under it does not accrue until the happening of the contingency entitles Jiim to the possession, the statute does not begin to run against him until that time."'' § 842. Nature of Claimant's Entry in Order to Oust an Adverse Occupant. The entry must, of course, appear to have been upon the. land claimed, and it must also appear that it was not a mere casual entry, but made animo clamandi, intending to assert his claim, and was followed by a possession, continuous and actual, by means of residence, improvement, cultivation, or other open, no- torious, and habitual acts of ownership.*^ It is admitted that an entry into one of several parcels of land in the same county may avail as an entry into all, provided the en- try is made in the name of all, and the several parcels are, as to the freehold, in the hands of the same person. But if the freehold is in different parties, or if it be in different counties, or if the entry is not made in the name of all parcels, it is good for no more than the parcel actually entered upon. Hence, if there be three several disseisors of different parcels, as each is a several tenant of the free- hold of his parcel, there must be a separate entry upon every one, and not upon one in the name of all. -So, also, there must be a separate entry if a disseisor of an entire parcel let the land for life, say in three parcels, to three several tenants. But if, in the latter case, he should let it for years to three several tenants, an entry into any one of the parcels, in the name of all, will serve for the whole."* And it should be observed that the entry of the equitable owner (e. g., cestui que trust) is as effective to repel the bar of the stat- ute of limitations as that of the possessor of the legal title.'"' 88 Allen V. De Groodt, 98 Mo. 159, 11 S. W. 240, 14 Am. St. Rep. 626 ; Jack- son V. Schoonmaker, 4 Jc^s. (N. Y.) 390; Gregg v. Tesson, 1 Black, 150, 17 L. Ed. 74. 67 2 Min. Insts. 578; Clarkson v. Booth, 17 Grat. (Va.) 489, 490, et seq. 68 2 Min. Insts. 585; Ewing v. Burnet, 11 Pet. 53, 9 L. Ed. 624; Barclay v. Howell, 6 Pet. 513, 8 L. Ed. 477. The party in possession "cannot be disseis- ed or ousted, except by an actual invasion of his boundary by some act or acts palpable to the senses, and which will serve to admonish him that his seisin is molested; otherwise, he might be disseised of his freehold not only without his knowledge, but without the possibility of his knowing it." Green V. Pennington, 105 Va. 806, 54 S. U. 877. 68 2 Min. Insts. 585, 586; 3 Th. Co. Lit. 15 et seq.; Angell, Lim. § 377. TO 2 Min. Insts. 586 ; Gree v. Rolle, 1 Ld. Raym. 716. (645) CHAPTER XXXVI. TITLE BY PRESCRIPTION. ' § 843. Nature of Title by Prescription. 844. Kind of Property Acquirable by Prescription. 845. The Prescriptive Period — In General. 846. Same— Allowance for Disabilities of Riglitful Owner. 847. Extent of Rigbt Acquired by Adverse User. 848. Continuity of User Necessary. 849. Effect of Mere Protests on Part of True Owner upon the Adverse User. 850. Notoriousness of Adverse User. 851. Exclusiveness of Enjoyment. 852. Hostile Character of the User. 853. Same — Criterion of Hostile User. 854. No Estate Less than One of Inheritance can be Acquired by Prescrip- tion. 855. Distinction in Pleading between Prescribing in a Que Estate and in Oneself and One's Ancestors. § 843. Nature of Title by Prescription. By the common law, when a person (and those under whom he claims) has been used to enjoy certain incorporeal property immemorially, that is, for a time such that the memory of man (whether by the proper knowl- edge of any man living, or by record or sufHcient matter of writing) runneth not to the contrary, and his possession has been also hon- est, uninterrupted and adverse, he acquires thereby what is known as a title by prescription, which is founded on the natural presump- tion that he who has a quiet and uninterrupted possession for a cer- tain number of years has a just right to the subject possessed, or else he would not have been suffered to continue in the enjoyment of it. Such protracted acquiescence on the part of other claimants in an adverse possession, supposing it to be honest and unaccom- panied by fraud, necessarily supposes some good reason, though perhaps unknown, for which the claim was forborne, and requires in sound policy, and with a view to the peace of society, that any opposing title should be regarded as abandoned.^ § 844. Kind of Property Acquirable by Prescription. Nothing but such things as lie in grant (at common law, incorporeal here- ditaments) can be claimed by prescription, such as easements, rights of way, profits a prendre, franchises, rights to the use of water, etc. But no prescription, properly so called, can give title to lands (corporeal hereditaments).'^ 1 2 Min. Insts. 564 ; 3 Bl. Com. 262 ; 2 Th. Co. Lit. 198. 2 2 Min. Insts. 566. (646) Ch. 36] PKESCEIPTION PROPERTY ACQUIRABLE. § 844 The reason for this restriction of prescriptive title to incorporeal rights lying in grant is not easy to discover; the peace and gen- eral interests of society requiring that the long and quiet enjoy- ment of lands should confer a title, no less than the long and quiet enjoyment of incorporeal rights. And so Bracton seems to have laid down the law: "Longa enim possessio (sicut jus), parit jus possidendi, et tollit actionem vero domino."^ But at a very early period the diversity was established, perhaps because of the difference between the modes of transfer of the re- spective classes of property, the one lying in grant and the other in the higher and more solemn transaction of livery, which might cause an abandonment or surrender of the first to be inore readily presumed than of the spcond ; or possibly it may have resulted in consequence of the enactment of a statute limiting actions for lands, and, if not so established, it has at all events been fostered and ren- dered more prominent by the long succession of such statutes. Thus Lord Coke says : "In ancient time the limitation in a writ of right was from the time of Henry I.* * * * After that by the statute of Merton (20 Hen. HI, c. 8), the limitation was from the time of Henry II, and by the statute of Westm. I (3 Edw. I, c. 39), and Westm. II (13 Edw. I, c. 46), the limitation was from the time of Richard I^ * * * since altered by a profitable and nec- essary statute, made anno 32 Henry VIII (c. 2), and by that act the former limitation in time in a writ of right is changed and re- duced to sixty years next before the teste of writ; and so of other actions, as by the statute appeareth." ^ Indeed, the theory of the common law seems to be that title by prescription is nothing more than the conclusive supposition of a grant, which by lapse of time has been lost or destroyed. Hence, if the right in question could not have arisen from a grant at all, the groundwork of the title fails. However, every prescriptive claim may be good, supposing it to be accompanied by honest, uninter- rupted, adverse, and immemorial possession, wherever it might by possibility have had a lawful commencement.' 3 2 Min. Insts. 566. * This would seem to have been by virtue of some statute or assize, which is not extant ; the earliest statute whose complete text survives being Magna Charta, or 9 Hen. III. See Hale's Hist. Com. Law, 152, 150, 171, 172; 1 Reeve's Hist. Eng. Law, 264, 316; 2 Reeve's Hist. Eng. Law, 121; 2 Min. Insts. 566. 5 3 Th. Co. Lit. 230 ; 2 Min. Insts. 566. 2 Min. Insts. 567 ; 2 Bl. Com. 265, note (4) ; 2 Tiffany, Real Prop. § 445 ; Lamb v. Orosland, 4 Rich. Law (S. C.) 536; Coolidge v. Learned, 8 Pick. (Mass.) 504 ; Tracy v. Atherton, 36 Vt. 503 ; Lehigh Valley R. Co. v. McFar- lan, 43 N. J. Law, 605. (647) § 844 PRESCRIPTION PROPERTY ACQUIRABLE. [Ch. 36 So, also, if the right or interest claimed can arise by matter of record alone, then it cannot arise by a mere grant. Thus, in re- spect to the royal franchises of deodands, of felon's goods, etc., as they are not forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself, or rather the right to the forfeiture, cannot be claimed by an inferior title. On the other hand, the franchises of treasure-trove, waifs, estrays, etc., as they exist in England, may be claimed by prescription ; for they arise from contingencies in pais, and not from any matter of record.'' And so it is, also, in case of a right common to all, and hence not susceptible of special grant to one. Thus, the right of fishing in the sea being a right common to all, a .prescription for such a right annexed to certain tenements is bad.^ § 845. The Prescriptive Period — In General. As has been point- ed out, the theory of the common law is that the adverse enjoy- ment must have continued immemorially, that is, from a time where- of the memory of man runneth not to the contrary, in order that a prescriptive right to the easement or other incorporeal property may arise.' But practically the courts permit such immemorial enjoyment to be conclusively presumed from the proof of an enjoyment for a reasonable period, fixed at common law ^° arbitrarily at twenty years of honest, uninterrupted, notorious, exclusive and adverse en- joyment, and in many of the states in this country, by analogy to the statute of limitations affecting lands, at the period prescribed by the statute. ^^ In fixing the time or event from which the computation of the period is to commence, we must look to the time at which it first becomes complete ; that is, where the other party's use and enjoy- ment of his land, actual or potential, is first interfered with. Thus, where the question relates to the flooding of lands by a mill dam, the date from which the computation is to commence is the date when the dam is first put in condition to stop the water, and not when the structure was first begun. ^^ § 846. Same — Allowance for Disabilities of Rightful Owner. In those states which draw their prescriptive period from analogy ^ 2 Mill. Insts. 567, 568 ; 2 Bl. Com. 265 ; 2 Th. Co. Lit. 200. 8 2 Mln. Insts. 568 ; Bac. Abr. Common (A) ; Ward v. Cresswell, Wllles, 263. 9 Ante, § 843; 2 Min. Insts. 504. 10 2 Blln. Insts. 506; Coalter v. Hunter, 4 Rand. (Va.) 64, 15 Am. Dec. 726. 11 3 Washburn, Real Prop. (6tli Ed.) § 1879. 12 Brancli v. Doaue, 17 Conn. 402. (648) Ch. 36] PEESCRIPTION CONTINUITY OP USER. § 848 to the period contained in the statutes of limitations relating to land, the analogy carries the courts on to the allowance of the same disabilities on the part of the rightful owner as are allowed by those statutes, and subject to the same restrictions.^* § 847. Extent of Right Acquired by Adverse User. Since the right claimed is based upon continuous user for the prescriptive period, it follows that the right arises only to the extent of the cus- tomary user.'-* While in the case of an easement arising by ex- press grant the language of the grant is to be examined to define and limit the rights of the parties, ^° in the case of an easement arising by prescription, the only way of determining these rights is by ref- erence to the user; that is, the accustomed mode and extent of the enjoyment of the right claimed.^" Thus, whether one claiming a way over another's land by pre- scription is entitled to a footway, horsewa!y or carriageway depends upon the mode in which he has been accustomed to use his neigh- bor's land.^^ § 848. Continuity of User Necessary. The principles that gov- ern the adverse user of the occupant necessary to give him a pre- scriptive title are for the most part identical with those governing the adverse possession of an occupant of land necessary to give him title under the statute of limitations, which have been discussed pretty fully in the preceding chapter. Thus it is well settled that the adverse user must be continuous and uninterrupted throughout the prescriptive period, by which is not meant that the user must necessarily continue every moment of the time, day in and day out, but that it must be constant in the sense wherein that term is used when applied to such rights as the one in question (involving the idea that the right of user should never have been abandoned, even for a moment), and that the en- joyment must not have been interrupted by acts of ownership on 13 Ante, §§ 821, 822; 2 Tiffany, Real Prop. § 447; Lamb v. Crosland, 4 Rich. Law (S. C.) 536; Melvin v. Whiting, 13 Pick. (Mass.) 185; Edson v. Munsell, 10 Allen (Mass.) 557; Tracy v. Atherton, 36 Vt. 503; Mebane v. Patrick, 46 N. C. 23 ; Wallace v. Fletcher, 30 N. H. 434 ; Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744. 14 2 Washburn, Real Prop. 41; 2 Tiffany, Real Prop. § 322. 15 Watts V. C. I. Johnson & Bowman Real Estate Corp., 105 Va. 520, 524, 54 S. E. 317. 16 2 Washburn, Real Prop. 41; Watts v. C. I. Johnson & Bowman Real Es- tate Corp., 105 Va. 520, 524, 54 S. E. 317. 17 2 Washburn, Real Prop. 41; Cowling v. Higginson, 4 M. & W. 245; Brunton v. Hale, 1 Ad. & E. 792. See Watts v. C. I. Johnson & Bowman Real Estate Corp., 105 Va. 524, 525, 54 S. E. 317 ; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731 ; Bakeman v. Talbot, 31. N. Y. 366, 88 Am. Dec. 279, note. (649) § 848 PRESCRIPTION CONTINUITY OF USER. [Ch. 36 the part of the true owner, or of another, that would for the time being have the effect of destroying the adverse occupant's enjoy- ment, or rendering the right impossible of enjoyment. ^^ For instance, a right of way may be acquired by prescription, if the right is exercised at the pleasure of the adverse claimant, though the exercise be only occasional ; ^' whereas, in the nature of things, the enjoyment of light or air adversely, or the use of a drain, would be automatic and more or less continuous night and day.^" Similarly, if the owner of land, over which a right of way is claim- ed adversely, blocks the right of way so as to render a passage im- possible, this destroys the continuity of possession ; ^^ but if he merely renders the passage less convenient than formerly, without blocking it altogether, it would not necessarily result in breaking the continuity. ^^ Another instance of break in the continuity of the adverse user may occur where there is a time before the completion of the pre- scriptive period at which both the dominant and servient estates belong to the same person, for the whole easement, if any there be, is thereby extinguished.^" It is to be observed that successive adverse users, if there be privity between the successors in. adverse enjoyment, may, like suc- cessive adverse possessions of land, be tacked the one to the oth- er, so as to aggregate the prescriptive period.^* § 849. Effect of Mere Protests on Part of True Owner upon the Adverse User. The weight both of reason and authority is in favor of the view that mere protests and expostulations on the part of the true owner will have no effect whatever, so far as concerns the breaking of the continuity of enjoyment by the adverse claimant. 18 2 Min. Insts. 564, 566 ; 2 Tiffany, Real Prop. § 448 ; Sears v. Hayt, 37 Conn. 406 ; Webster v. Lowell, 142 Mass. 324, 8 N. E. 54 ; Bodflsli v. Bodfish, 105 Mass. 317 ; Messinger's Appeal, 109 Pa. 290, 4 Atl. 162 ; Gerenger v. Sum- mers, 24 N. C. 229. 18 Bodfish V. Bodfish, 105 Mass. 317; Cox v. Forrest, 60 Md. 74. 20 2 Washburn, Real Prop. 46, 47. 21 2 Tiffany, Real Prop. § 448 ; Sears v. Hayt, 37 Conn. 406 ; Barker v. Clark, 4 N. H. 380, 17 Am. Dec. 428. 2 2 Webster v. Lowell, 142 Mass. 324, 8 N. E. 54; McKenzie v. Elliott, 134 111. 156, 24 N. E. 965 ; 2 Tiffany, Real Prop. § 448. 2 3 Ante, § 107; 2 Tiffany, Real Prop. § 448; Murphy v. Welch, 128 Mass. 489 ; Stuyvesant v. Woodruff, 21 N. J. Law, 133, 47 Am. Dec. 156 ; Pierre v. Pernald, 26 Me. 436, 46 Am. Dec. 573. 2 4 Ante, § 827 et seq. ; 2 Tiffany, Real Prop. § 446; Holland y. Long, 7 Gray (Mass.) 486; Leonard v. Leonard, 7 Allen (Mass.) 277; Sargent v. Bal- lard, 9 Pick. (Mass.) 251 ; Bradley's Pish Co. v. Dudley, 37 Conn. 136 ; Dodge V. Stacy, 39 Vt. 558 ; Ross v. Thompson, 78 Ind. 90. (650) Ch. 36] PBESCEIPTION EXCLUSIVE ENJOYMENT. § 851 Indeed, the fact that the owner during twenty years (or the pre- scriptive period) contents himself with mere protests against the use of his land, when he might and should have taken steps to pre- vent it, but strengthens the presumption that the adverse claimant has right on his side, and constitutes the enjoyment more hostile than before. Hence the doctrine usually accepted is that such pro- tests cause no breach in the continuity of the adverse claimant's enjoyment.^"* § 850. Notoriousness of Adverse User. The very fact that one party is using the land of another at all is in general a sufficiently notorious fact, or soon becomes so ; but cases may arise where the acts of user and enjoyment are secretly done, with the very pur- pose of working a fraud and surprise upon the owner. The general principle is the same as in the case of adverse pos- session. It is not essential that the owner of the land should ac- tually know of the adverse use to which his land is being put; but it is essential that the acts should be open and notorious, so that he may have an opportunity to know of them.^" § 851. Exclusiveness of Enjoyment. Here, also, the principle is the same in the case of prescription as in the case of adverse pos- session, namely, that the adverse user must be exclusive, but the application is somewhat different; for the prescriptive right claim- ed is merely the right to use, not to occupy, the owner's land, and it is by no means necessarily inconsistent with the exclusiveness of the claimant's use of the land that others also claim the right to use it, or that the owner uses it in the same way, provided the claimant's user is based upon a claim of right independent of the others, and provided such other's use of the land does not inter- rupt his enjoyment of it.^^ Thus, where one claims a right of way by prescription over another's land, the fact that there is a road or path over which 26 2 Tiffany, Real Prop. § 448; Angus v. Dalton, 3 Q. B. Div. 93, 4 Q. B. Div. 172, 186; Lehigh Valley K. Co. v. McFarlan, 43 N. J. Law, 605; Mc- George v. Hoffman, 133 Pa. 381, 19 Atl. 413 ; Connor v. Sullivan, 40 Conn. 26, 16 Am. Rep. 10 ; Jordan v. Land, 22 S. G. 159 ; Ferrell v. Ferrell, 1 Baxt. (Tenn.) 329 ; .Kimball v. Ladd, 42 Vt. 747 ; Okeson v. Patterson, 29 Pa. 22. Contra, Chicago & N. W. Ry. Co. v. Hoag, 90 111. 339 ; Reid v. Garnett, 101 Va. 47, 43 S. E. 182, 8 Va. Law Reg. 723, note. 2 6 Ante, § 832; 2 Min. Insts. 564, 566; Olney v. Gardiner, 4 M. & W. 496, 500; Tickle v. Brown, 4 Ad. & E. 369; 2 Washburn, Real Prop. (6th Ed.) § 1254; Green v. Pennington, 105 Va. 801, 54 S. E. 877. 27 2 Tiffany, Real Prop. § 449 ; Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635 ; Webster v. Lowell, 142 Mass. 324, 8 N. B. 54 ; Wanger v. Hippie (Pa.) 13 Atl. 81 ; Kllburn v. Adams, 7 Mete. (Mass.) 33, 39 Am. Dec. 754 ; Cox V. Forrest, 60 Md. 74. (651) § 851 PRBSCEIPTION EXCLUSIVE ENJOYMENT. [Ch. 36 he goes, and that such road or path is used by others, or by the owner, as well as by himself, does not prevent him from acquiring the right by prescription to pass over the way ; nor is his acquisi- tion of such right in the least inconsistent with a like acquisition by others, either by grant or prescription, the right of each being exclusive of the rights of the others.-' But if his user be merely in common with the rest of the com- munity, or with a certain class, and under no individual claim of right, while he might thus, in England, perhaps, and in some of these states, claim a right by local custom, he could claim none by prescription. ^° § 852. Hostile Character of the User. The user must be hos- tile or adverse to the true owner; that is, it must not be by his permission or license, though it is not essential that it should be actually against his will or consent (which would involve the own- er's actual knowledge of the adverse user).^" It is also essential, in order that the user may be adverse, that it be such as would give rise to a right of action or of legal redress on the part of the owner of the land, since otherwise he would have no power legally to break the continuity of the user, and would be deprived of his rights without the power to prevent it.^^ Thus the use of a public highway by an individual, though he use it for the prescriptive period, gives him no private right of way over the land, should the public way be abandoned or discontinued; for the owner could have brought no action against him to prevent his user, so long as the way is public. But, should he continue the 2 8 See authorities supra. 2 9 Kilburn v. Adams, 7 Mete. (Mass.) 33, 39 Am. Dec. 754; Oobb v. Daven- port, 32 N. J. Law, 369 ; Prince v. Wilbourn, 1 Rich. Law (S. C.) 58 ; Burn- ham V. McQuesten, 48 N. H. 446. 30 2 Tiffany, Real Prop. § 450; Kilburn v. Adams, 7 Mete. (Mass.) 33, 39 Am. Dec. 754 ; Parker v. Foote, 19 Wend. (N. Y.) 309 ; Ward v. Warren, 82 N. Y. 265; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479; Demuth v. Amweg, 90 Pa. 181 ; Conyers v. Scott, 94 Ky. 128, 2l S. W. 530 ; Lanier v. Booth, 50 Miss. 410 ; Conner v. Woodflll, 126 Ind. 85, 25 N. E. 876, 22 Am. St. Rep. 568 ; Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744. siGilmore v. Driscoll, 122 Mass. 199, 207, 23 Am. Rep. 312; Carlisle v. Cooper, 19 N. J. Eq. 256; Roundtree v. Brantley, 34 Ala. 544, 73 Am. Dec. 470 ; Emery v. Raleigh & G. R. R. Co., 102 N. C. 210, 9 S. E. 139, 11 Am. -St. Rep. 727 ; Mitchell v. City of Rome, 49 Ga. 19, 15 Am. Rep. 669 ; Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243. But the fact that he could in his action recover only nominal damages is immaterial, since he may thereby none the less vindicate his rights. Bolivar Mfg. Co. v. Neponset Mfg. Co., 16 Pick. (Mass.) 241 ; Parker v. Foote, 19 Wend. (N. Y.) 309 ; Olney t. Fenner, 2 R. I. 211, 57 Am. Dec. 711. (652) Ch. 36] PRESCRIPTION CRITERION OF HOSTILE USER. § 853 use after the highway is abandoned, he might then, after the lapse of the prescriptive period, acquire a right thereto. ''^ § 853. Same — Criterion of Hostile User. The principles enunci- ated in the preceding section afford an excellent working criterion whereby to determine in most cases whether there may be a title by prescription at all in a given case, and, if so, when the prescrip- tive period begins to run. Since one cannot in general be deprived of his enjoyment of his own property by a mere user of another, unless and until he has had an opportunity to prevent such user by legal process,^ ^ it follows that there can be no hostile or adverse user, such as is essential to title by prescription, until there has accrued to the owner of the land a right by action or other legal process to prevent such user. Hence the accrual of the right of action or other legal redress may be taken as the starting point of a title by prescription, and as the criterion by which to determine whether a particular easement or other incorporeal hereditament may be acquired by prescription at all.''* Thus, if a lower riparian owner, during the prescriptive period, appropriates an excessive quantity of water from a stream, this would not give him a prescriptive right thereto as against an upper proprietor, who would have no legal means of preventing it, ex- cept by appropriating the water himself.^^ So one cannot acquire a prescriptive right to water percolating from other land, nor to a flow of surface water from other land, since no right of action nor of legal process to prevent the use of it accrues to the owner of the land from which the water flows. ^^ So it is, also, in this country, at least, with regard to the doctrine of ancient lights. One cannot, by receiving light into his windows over a vacant lot for twenty years (or the prescriptive period), ac- 32 2 Tiffany, Real Prop. § 450; Webster v. Lowell, 142 Mass. 324, 8 N. E. 54 ; Wheeler v. Clark, 58 N. X. 267 ; Whaley v. Stevens, 27 S. 0. 549, 4 S. E. 145 ; Black v. O'Hara, 54 Conn. 17, 5 Atl. 598. 3 3 Ante, § 852. 3* See cases cited infra. 85 2 Tiffany, Real Prop. § 451; Sampson v. Hoddinott, 1 O. B. (N. S.) 590; Stockport Waterworks Co. v. Potter, 3 Hurl. & C. 300 ; Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468; Pratt v. Lamson, 2 Allen (Mass.) 273, 288; Parker v. Hotchkiss, 25 Conn. 321. See Leonard v. St. John, 101 Va. 752, 45 S. E. 474. 36 Ante, §§ 59, 119 ; Chasemore v. Richards, 7 H. L. Cas. 349 ; Broadbent V. Ramsbotham, 11 Exch. 602 ; Greatrex v. Hayward, 8 Exch. 291 ; Wheatley V. Baugh, 25 Pa. 528, 64 Am. Dec. 721; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352 ; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299 ; Frazier v. Brown, 12 Ohio St. 294. (G53) § 853 PRESCRIPTION — CRITERION OP HOSTILE USER. [Ch. 36 quire a prescriptive right to the continued use of such light, and prevent the ov^mer of the lot from building thereon ; for the first party's use of the light is not actionable, nor remediable by any proceeding at law, but only by his placing some physical obstruc- tion upon his own lot, which the law should not compel him to do if he does not wish it.*" And the same principle applies to pre- vent a prescriptive right from attaching in the case of support for a building by adjacent land or by another building.'^ , Applying the same criterion, a prescriptive right may be acquir- ed as against a reversioner, though he has never been in posses- sion of the land at any time during the adverse user, if he has dur- ing that period the right to institute legal proceedings to stop the adverse user.'" So the fact that the user was commenced by permission or li- cense of the owner rebuts the adverse character of the user, unless it be established that the permission or license was withdrawn by the owner or repudiated by the claimant before the prescriptive pe- riod commenced to run, in which case a right of action would have accrued to the owner.*" § 854. No Estate Less than One of Inheritance can be Acquir- ed by Prescription. A tenant for life, for years, or at will, cannot prescribe, by reason of the imbecility of his estate. For, as pre- scription is usage beyond legal memory, it is absurd that such a tenant should pretend to prescribe for ^anything, when his estate commenced within the memory of man. These particular tenants, therefore, must prescribe by virtue of the previous enjoyment of the right, pleading that J. S. and his ancestors had immemorially used to have the right in question (e. g., a right of common), as appurtenant to the land, and that J. S. had leased the land to the STAnte, § 118; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Parker v. Foote, 19 Wend. (N. Y.) 309 ; Havei-stick v. Sipe, 33 Pa. 368 ; Powell v. Sims, 5 W. Va. 1, 13 Am. Rep. 629; Pierre v. Fernald, 26 Me. 436, 46 Am. Dec. 573; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379; Napier v. Bul- wiukle, 5 Rich. Law (S. C.) 311. 38 2 Tiffany, Real Prop. § 451; Tunstall v. Christian, 80 Va. 1, 56 Am- Rep. 581; Richart v. Scott, 7 Watts (Pa.) 460, 32 Am. Dec. 779; Mitchell V. City of Rome, 49 Ga. 19, 15 Am. Rep. 669 ; Sullivan v. Zeiner, 98 Cal. 346. 33 Pac. 209, 20 L. R. A. 730. But see Lasala v. Holbrook, 4 Paige (N. Y.) 169, 25 Am. Dec. 524 ; City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243. 3 9 Cross V. Lewis, 2 B. & Cr. 686; Reimer v. Stuber, 20 Pa. 458, 59 Am. Dec. 744. See Ward v. Warren, 82 N. Y. 285; Pentland v. Keep, 41 Wis. 490. ^oEckerson v. Crippen, 110 N. Y. 585, 18 N. E. 443, 1 L. R. A. 487; Pitz- man v. Boyce, 111 Mo. 387, 19 S. W. 1104, 33 Am. St. Rep. 536; Thoemke V. Fiedler, 91 Wis. 386, 64 N. W. 1030. (654) Ch. 36] PRESCEIPTION PLEADING. § 855 particular tenant for the term, etc. And, indeed, even a tenant in fee simple, when he claims by prescription a right appurtenant to land, must allege in pleading his seisin in fee, and then aver that he and all those whose estate he hath in the land, from time where- of the memory of man is not to the contrary, had, and of right ought to have had, the privilege in question, which is termed, from the phrase, "those whose estate he hath," prescribing in a que estate. ^"^ § 855. Distinction in Pleading between Prescribing in a Que Estate and in Oneself and One's Ancestors. When one prescribes in a que estate (that is, in himself, and those whose estate he has), nothing can be included in his claim but such things as are ap- pendant or appurtenant, that is, incident to lands ; for it would be absurd to claim anything as the consequence or appendix of an es- tate with which the thing claimed has no connection. But if he prescribed in himself and his ancestors, he may prescribe for any- thing whatsoever that lies in grant, not only things appurtenant to land, but also things in gross. Thus he may prescribe in a que estate for a right of common appurtenant to a certain tract of land, but for a common in gross he can prescribe only in himself and his ancestors.*^ *i 2 Min. Insts. 567 ; 2 Bl. Com. 204, 265 ; Mellor v. Spateman, 1 Saund. 346. 42 2 Min. Insts. 568; 2 Bl. Com. 266; Mellor v. Spateman, 1 Saund. 346. (655) CHAPTER XXXVII. TITLE BY CONVEYANCE— I. ALIENATION IN GENERAL. § 856. Nature of Alienation In General. 857. Subject-Matter of Alienation. 858. Incapacity to Aliene of Person Non Compos Mentis. 859. Incapacity of Infants to Aliene. 860. Same — Conveyance of Infants' Lands in the United States by Statute. 861. Incapacity of Person Intoxicated to Aliene. 862. Incapacity of Person under Duress to Aliene. 863. Incapacity of Married Woman to Aliene. At Common Law. 864. Use of Fines and Common Recoveries. 865. Married Woman's Equitable Separate Estate. 866. Married Woman's Statutory Conveyance in the United States. 867. Incapacity of Person Attainted of Treason or Felony to Convey. 868. Incapacity of an Alien to Convey. 869. Incapacity of a Corporation to Convey. 870. Incapacity to be an Alienee. In General. 871. Grantee InsuiBciently Designated. 872. Alienee Dead at Time of Transfer. 873. Alien as Alienee. 874. Corporation as Alienee. In England. 875. First Device to Evade Law of Mortmain. 876. Second Device to Evade Statutes of Mortmain. 877. Third Device to Evade Statutes of Mortmain. 878. Fourth Device to Evade Statutes of Mortmain. 879. Corporation as Alienee in the United States. 880. Person Attainted of Treason or Felony as Alienee. 881. Fiduciary as Alienee. § 856. Nature of Alienation in General. The most usual method of acquiring a title to real estate, as Blackstone remarks, is that by alienation, conveyance, or purchase in its limited and popular sense, under which may be comprised any method whereby estates are voluntarily resigned by one man, and accepted by another, wheth- er that be effected by sale, gift, marriage settlement, devise, or oth- er transmission of property by the mutual consent of the parties.^ The general doctrine of the common law, as well in the United States as in England,, is that the law of the place where the prop- erty is situated — the lex loci rei sitae — exclusively governs real prop- erty in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them. The title, 1 2 Min. Insts. 635 ; 2 Bl. Com. 287. (656) Oh. 37] COXVBYANCE ALIENATION IN GENERAL. § 856 therefore, to real property can be acquired, passed, and lost only according to the lex loci rei sitse.^ Alienation, as a means of acquiring real estate, is not of equal antiquity in the common law of England with that of taking it by descent ; for although it is generally admitted that unlimited pow- er of alienation existed prior to the Conquest, in the time of the Saxons, yet the introduction of the system of feuds, which follow- ed close after the Conquest, wrought a total revolution in this par- ticular.^ For we may remember that, by the feudal law, a pure and gen- uine feud could not be transferred from one feudatory to another without the c'onsent of the lord, lest thereby a feeble tenant, or one liable to suspicion, might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abil- ities and fidelity he could depend. Neither could the feudatory then subject the lands to his debts; for thus the feudal restraint of alienation would have been easily evaded. And as he could not aliene it in his lifetime, so neither could he bj^ will defeat the suc- cession, by devising the feud to another family ; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the es- tate, even with the consent of the lord, unless he had also obtained the consent of his next apparent or presumptive heir. And, there- fore, it was very usual in ancient feoffments to express that the alienation was made by consent of the heirs of the feoffor, or some- times for the heir app.a.rent himself to join with the feoffor in the grant. And, on the other hand, as the feudal obligation was look- ed upon as being reciprocal, the lord could not aliene or transfer his seigniory, without the consent of his vassal ; for it was esteemed unreasonable to subject a feudator}-, without his own consent, to a new superior, with whom he might have a deadly enmity, or even to transfer his fealty, without his being thoroughly apprized of it, that he might know with certainty to whom his renders and serv- ices were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighboring clan. This consent of the vassal was expressed by what was called attorning, or professing to accept the new lord in the tourn or place of the old, which doctrine of attornment was afterwards extended to all lessees for life or years. For if one bought an estate with any lease for life or years standing out thereon, and the lessee or = 2 Jlin. Insts. 635 ; Story, Confl. Laws, §§ 424, 428, 434, 404 ; Minor, Confl. Laws, § 11 et seq. 3 2 Miu. lusts. C3.J. Minor & W.Real Prop.— 42 (657) § 856 CONVEYANCE ALIENATION IN GENERAL. [Ch. 3T tenant refused to attorn to the purchaser, and to become his ten- ant, the grant or contract was in most cases void, or at least in- complete, which was also an additional clog upon alienations. But by degrees this feudal severity is worn off, and experience has shown that property best answers the purposes of civil life, especially in commercial countries, where its transfer and circula- tion are perfectly free and unrestrained.* § 857. Subject-Matter of Alienation. At common law, a gran- tor can convey no title to lands, unless it be fortified and sanctioned by the possession. The naked right, whether it be the right of possession or the right of property, is not capable of Jjeing convey- ed, lest it should enable the great men of large social and political influence to obtain pretended titles, whereby justice might be trod- den down, and the weak oppressed. But this principle does not hinder reversions and vested remainders from being granted, nor contingent remainders, where the owner is ascertained, because the possession of the particular tenant is the possession of him in remainder or reversion.'' This doctrine of the common law remains in full force in this country in those states that have not legislated on the subject." § 858. Incapacity to Aliene of Person Non Compos Mentis. Ac- cording to Lord Coke, the phrase "non compos mentis" expresses any and every kind of mental aberration, and is, he says, the "most sure and legal'' for that purpose, including (1) idiots, who from their nativity are wanting in understanding ; (2) lunatics, who some- times have understanding and sometimes hot ; (3) persons non- sane, who by sickness, grief, or other accident have wholly lost their memory and understanding; and (4) persons drunken, who hy their own vicious act have for a time deprived themselves of their understanding and memory.' In modern times nonsane persons include idiots and lunatics, the latter word being commonly used to signify all who, by any event supervening after birth, are deprived of their understanding, wheth- i 2 Min. Insts. 635 ; 2 Bl. Com. 287, 288. 5 2 Min. Insts. 640, 641; 2 Bl. Com. 290, note (6). And by the English statute of "pretensed titles" (that is, pretended titles), 32 Hen. YIII, c. 9, no person was allowed to convey or take, or to bargain to convey or take, any pretensed title to lands or tenements, unless the grantor, or those undet' whom he claimed, shall have been in possession of the same, or of the re- version or remainder thereof, one year ne.xt before, under penalty of for- feiting the whole value of the lands, etc. 2 Min. Insts. 641 ; 4 Bl. Com. 125, 136. 6 1 Washburn, Real Prop. (6th Ed.) § 103. 7 3 Th. Co. Lit. 45, 46 ; 2 Min. Insts. 642. (058) Ch. 37] CONVEYANCE— BY INCOMPETENTS. § 858 er with or without lucid intervals; whilst persons drunken are as- signed to a separate class.^ A very remarkable doctrine is recognized by Littleton and Lord Coke as undoubted law,' namely, that if a nonsane person executes a conveyance he shall not plead his want of reason (although his lieir may) to invalidate his conveyance, because "no man of full age shall be received in any plea by the law to disable his own person," to which was sometimes added the further reason that, if he were really out of his senses, he could not know whether he had made the conveyance or not.^" To the credit of the law this doctrine has been, in later times, ab- solutely and wholly repudiated and abandoned ; and it is admit- ted that in all cases the party himself, as well as his heir, may in- validate any conveyance, or other contract, made whilst in a state of mental aberration. ^^ In respect to the amount o-f mental weakness or disturbance which will invalidate a conveyance or other contract, the rule is the same as in the case of wills. Mere weakness of understanding is no ob- jection to a man's disposing of his own estate. Courts cannot meas- ure people's capacities, nor examine into the wisdom and prudence of their property dispositions. If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions. The test of legal ca- pacity is said to be that the party is capable of recollecting the property he is about to dispose of, the manner of distributing it, and the objects of his bounty. But, of course, the particular act must be attended with the consent of his will and understanding; for although the person may labor under no legal incapacity to do a valid act, or make a contract, yet if the circumstances of the whole transaction taken together, mental weakness being one of them, show that consent, the very essence of the act, was wanting, it is not valid. ^^ Much less derangement or weakness of mind is sufficient to make a deed voidable (as for fraud) than is necessary to render it ab- solutely void (for want of an agreeing mind), and in the iirst in- stance, if the grantee or a purchaser from him takes without no- 8 2 Jlin. Insts. 643 ; post, § 861. 9 3 Til. Co. Lit. 44 et seq. 10 2 Min. Insts. 643; 2 Bl. Com. 291, 292; Beverley's Case, 4 Co. 123b. 112 Min. Insts. 643; 2 Kent, Com. 451; 2 Bl. Com. 292, note (9); 1 Story, Eq. Jur. § 227. 12 2 Min. Insts. 643; Greer v. Greer, 9 Grat. (Va.) 332, 333; Stevens v. Van Clieve, 4 Wash. C. G. 262, Fed. Cas. No. 13,412; Stewart v. Lispenard, 2G Wend. (N. T.) 255. (659) § 858 CONVEYANCE BY INCOMPETENTS. [Ch. 3T tice of the intellectual defects of the grantor, he acquires a good title, or at least he must be placed in statu quo as a condition of setting aside the conveyance. The circumstances of the case must be looked to.^' Derangement of mind must h-e proved by him who alleges it; but if general derangement be once estabhshed, and an act is alleged to have been done in a lucid interval, the burden of proof is on the party alleging such lucid interval to show sanity and com- petence at the time of the act. And the evidence applying to such interval ought to go to the state and habit of the person, and not relate to a casual interview, as to the degree of self-possession in the particular act.^* § 859. Incapacity of Infants to Aliene. Whilst some contracts of an infant are valid and a few are void,^^ the great bulk of his business transactions are voidable at the election of the infant up- on attaining his majority, and to this latter class belongs for the most part an infant's conveyance of his land; ^^ that is, an infant's conveyance of land is effectual to transfer the title thereto, unless it be repudiated by him after attaining his majority, which may be done even though the grantee has meanwhile conveyed to a bona, fide purchaser without notice.^' At common law, since the conveyance, if of a freehold, must have been accompanied by livery of seisin, it could be repudiated by the infant only by an act of equal solemnity; that is, by entry.^* 13 Jackson v. Counts, 106 Va. 12, .54 S. B. 870; Clark, Cont. 268. 14 2 Mln. Insts. 644; 1 Greenleaf, Ev. § 42; Atty. Gen. v. Paruther, 3 Bro. Cli. 441; Fishburne v. Ferguson, 84 Va. 87, 108, 4 S. E. 575. 15 1 Min. Insts. 510 et seq. 16 2 Min. Insts. 644; 1 Min. Insts. 510 et seq.; 2 Kent, Com. 235; Mustarrl V. Wohlford, 15 Grat. (Va.) 337, 76 Am. Dec. 209; Tucker v. Moreland, 10- Pet. 71, 9 L. Ed. 345, 1 Am. Lead. Cas. 251 ; Dolph v. Hand, 156 Pa. 91, 27 Atl. 114, 36 Am. St. Eep. 25, note; Jackson v. Carpenter, 11 Jolins. (N. T.) 539; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 573, note. As to validity of a marriage settlement executed by an infant, in re- spect to personal and real estate, respectively, in England and In this coun- try, see Smith v. Smith, 107 Va. 116 et seq., 57 S. E. 577. IT 2 Tiffany, Real Prop. § 502. Mustard v. Wohlford, 15 Grat. (Va.) 329, 340, 76 Am. Dee. 209 ; Irvine v. Irvine, 9 Wall. 617, 19 L. Ed. 800 ; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 582, 661, note; Gillespie v. Bailey, 12 W. Va. 70, 29 Am. Rep. 445; Bool v. Mix, 17 Wend. (N. Y.) 119, 3] Am. Dec. 285; Slaughter v. Cunningham, 24 Ala. 260, 60- Am. Dec. 463; Harrod v. Myers, 21 Ark. 592, 70 Am. Dec. 409; Logan v. Gardner, 136 Pa. 588, 20 Atl. 625, 20 Am. St. Eep. 939. 18 2 Tiffany, Real Prop. § 502; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285 ; Jackson v. Burchin, 14 Johns. (N. Y.) 124 ; Rogers v. Hui'd, 4 Day (Conn.) 57, 4 Am. Dec. 182. See Irvine v. Irvine, 9 Wall. 617, 19 L. Ed- 800. (660) Ch. 37] CONVEYANCi:— INFANTS. § 859 But in modern times any act manifesting clearly an intention to repudiate the conveyance is regarded as sufficient." Thus, riot only an entry.^" but also the institution of an action of ejectment by the infant to recover the land,^^ or the institution by him of a suit to cancel the conveyance,-^ or an inconsistent conveyance sub- sequently made by him to another person, ^^ all constitute sufficient evidence of the infant's intention to repudiate the conveyance, pro- vided the acts of repudiation occur after he becomes of age.-* And, on the other hand, if after he comes of age he expressly confirms the conveyance, or unequivocally recognizes it as valid, he is thence- forward precluded from repudiating it.^^ But, according to the better opinion, the fact that he merely fails to repudiate the con- veyance within a reasonable time after he comes of age does not of itself operate as an affirmance of a conveyance made during his minority. For that purpose, such quiescence must continue for the period required for the running of the statute of limitations.^'' 19 2 Tiffany, Real Prop. § 502. 2 Inhabitants of Worcester v. Eaton, 13 Mass. 371, 7 Am. Dec. 155; Green v. Green, 09 N. T. .")53, 25 Am. Rep. 233. 21 Birch V. Lintou, 78 Va. 584, 49 Am. Rep. 381; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, IS Am. St. Rep. 583, note. 22 Gillespie v. Bailey, 12 W. Va. 70, 89, 29 Am. Rep. 445; Watson v. Billings, 38 Ark. 278, 42 Am. Rep. 1. 2 3 Mustard v. Wohlford, 15 Grat. (Va.) 329, 76 Am. Dee. 209; Tucker v. Moreland, 10 Pet. 58, 71, et seq., 9 L. Ed. 345, 1 Am. Lead. Gas. 251 ; Peter- son V. Laik, 24 Mo. 541, 69 Am. Dec. 441; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 065, note. 24Zouch V. Parsons, 3 Burr. 1794; Tucker v. Moreland, 10 Pet. 75, 9 L. Ed. 345, 1 Am. Lead. Cas. 251; Sims v. Everhardt, 102 U. S. 300, 20 L. Ed. 87; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 664 et seq., note : Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117 ; Bool V. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285 ; Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409. If the infant die without having either re- pudiated or affirmed the conveyance, his heirs (if the infant's estate be one of inheritance) or his personal representative (if the estate be less than in- heritance) may repudiate it. 2 Tiffany, Real Prop. § 502 ; Austin v. Trustees of Charlestown Female Seminary, 8 Mete. (Mass.) 196, 41 Am. Dec. 497; Bozeman v. Browning, 31 Ark. 364; Gillenwaters v. Campbell, 142 Ind. 529, 41 X. E. 1041 ; Singer Mfg. Co. v. Lamb, 81 Mo. 221. 25 2 Tiffany, Real Prop. § 502; Keegan v. Cox, 116 Mass. 289; Lacy v. Plxler, 120 Mo. 383, 25 S. W. 206 ; Cox v. McGowan, 116 N. O. 131, 21 S. E. 108 ; Allen v. Poole. 54 Miss. 323. 26 Birch V. Linton, 78 Va. 584, 49 Am. Rep. 381; Wilson v. Branch, 77 Va. 65, 46 Am. Rep. 709 ; Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87 ; Craig V. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 675, note; Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; McMurray v. Me- Murray, 66 X. Y. 175 ; Davis v. Dudley, 70 Me. 236, 35 Am. Rep. 318 ; Dono- (661) § 859 CONVEYANCE — INFANTS. [Ch. 37 It will be remembered that the fact that the infant is a mar- ried woman at the time of the conveyance, and executes the same under a statute permitting married women to convey upon con- forming with certain requirements, does not deprive her of this right or privilege of repudiating the conveyance after coming of age ; it being a settled rule of construction of such statutes that they are designed to obviate the one disability of coverture, and not the other and additional disability of infancy.^'' § 860. Same — Conveyance of Infant's Lands in the United States by Statute. The common-law disability of an infant in the matter of aliening lands, while intended as a protection to his youth- ful inexperience, frequently operated as a hardship upon him, when for any good reason it became necessary or beneficial to his inter- est to convey, lease or mortgage his property, so that statutes have been enacted in most of the states authorizing the conveyance or exchange, the lease, or the incumbrance of an infant's lands by a proceeding in equity instituted by the guardian of the infant. The procedure, being statutory, should be in substantial compliance with the statute in every particular, though, being remedial, the statutory requirements are to be construed liberally.^* § 861. Incapacity of Person Intoxicated to Aliene. The plea of drunkenness was formerly regarded with as little favor in civil as it still is in criminal cases. For although Lord Coke classes a drunk- ard as non compos mentis, yet he allows him no indulgence on that account. "As for a drunkard," says he, "who is voluntarius daemon, he hath (as has been said) no privilege thereby, but what hurt or ill he doth, his drunkenness doth aggravate it." ^'' But for more than a century this rigorous doctrine has been much relaxed, and it is agreed that drunkenness invalidates, or renders voidable, all contracts and transactions where (1) the drunken- ness was brought about by the opposite party; (2) a fraudulent advantage was taken of it; (3) it deprived the party of his reason, and of an agreeing mind. Although, in this last case, the inebriate van V. AVard, 100 Mieli. 601, 59 N. W. 254 ; Peterson v. Laik, 24 Mo. 541, 69 Am. Dec. 441. But see cases cited in note to Craig v. Van Bebber, supra. 2 7 Ante, § 286; 2 Min. Insts. 654; Thomas v. Gammel, 6 Leigh (Va.) 9; Walsh V. Young, 110 Mass. 396; Sandford v. McLean, 3 Paige (N. Y.) 117, 23 Am. Dec. 773 ; Greenwood v. Coleman, -34 Ala. 150 ; Watson v. Billings, 38 Ark. 278, 42 Ajn. Rep. 1; Epps v. Flowers, 101 iV. C. 158, 7 S. E. 680; McMorris v. Webb, 17 S. C. 558, 43 Am. Kep. 629. 28 3 Washburn, Real Prop. (6th Ed.) § 2054; Cochran v. Van Surlay, 20 Wend. 365, 32 Am. Dec. 570. 29 3 Tla. Co. Lit. 46; 2 Min. lusts. 644, 645; Beverley's Case, 4 Co. 124b; 1 Plowd. Com. 19. (662) Ch. 37] COXTEYANCE DURESS. § 862 may be made liable for necessaries, like a lunatic, upon a promise implied.^" The mere fact that one is drunk when he enters into a contract is no ground for setting it aside, at least in equity, unless under one or the other of the circumstances above stated; ^^ but when a person's habitual addiction to intoxication renders him extremely subject to imposition, such habits, though not carried to an excess constituting absolute incapacity, lay a ground for strict examina- tion whether any instrument executed by him does not in itself, or in the attendant circumstances, contain evidence that advantage was taken of those habits.'^ If the grantor's drunkenness has been brought about by the grantee, or if the latter has taken advantage of it (even though the grantor has not lost his reason because of the intoxication), these are such flagrant badges of fraud on the part of the grantee as to render the conveyance voidable both at law and in equity.^^ But if the intoxication at the time of the conveyance is so com- plete as to deprive the grantor of reason and of an agreeing mind, it would seem upon principle, without reference to the question of fraud, that the conveyance should be wholly void, not merely void- able, as in the other cases, since there is (by supposition) an ab- solute want of understanding and agreeing mind, without which there can be no contract.^* § 862. Incapacity of Person under Duress to Aliene. In order to give validity to a contract, the law requires the free assent of the party to be charged. Indeed, without freedom of will and choice, 30 2 Min. Insts. 645; 1 Chitty, Cont. 192; Smith, Cont. 202; 1 Parson, Cont. 311, note (n) ; Story, Cont. § 86 ; Gore v. Gibson, 13 M. & W. 025 et seq. 312 Min. Insts. 645; Jolinson v. Medlicott, 3 P. Wms. 130; Cory v. Cory, 1 Yes. Sr. 19 ; Coolie t. Clayworth, 18 A'es. 15 et seq. ; Rich v. Sydenham, 1 Ch. Cas. 202. 32 2 Min. Insts. 645; Say v. Barwick, 1 Yes. & B. 199; Dunnage v. White, 1 Swanst. 150 ; Mountain v. Bennet, 1 Cox, 35.j ; Samuel v. Marshall, 3 Leigh (Ya.) 572. 33 2 Min. Insts. 645; Johnson v. Medlicott, 3 P. AVms. 130, note (A); Cory V. Cory, 1 Ves. Sr. 19 ; Coolie v. Clayworth, 18 A'es. l.j, et seq. ; Gregory v. Frayser, 3 Campb. 4.j4 ; Brandon v. Old, 3 Carr. & P. 410 ; Reynolds v. ^Yaller, 1 Wash. (Va.) 1C4, 194. 34 2 Min. Insts. 640; Pitt v. Smith, 3 Campb. 33; Fenton v. Holloway, 1 Stark. 126 ; Brandon v. Old, 3 Carr. & P. 440 ; Gore v. Gibson, 13 M. & W. 025; Cooke v. Clayworth, 18 Ves. 10; Samuel v. Marshall, 3 Leigh (Ya.> 572 ; Johns v. Frltchey, 39 Md. 258 ; Bates v. Ball, 72 111. 108. But it must be admitted that a strong array of authority is in favor of the view that the conveyance in such case is voidable merely. See cases cited in note to Wade v. Colvert, 2 Mill, Const. (S. C.) 27, 12 Am. Dec. 653. (G63) § 862 CONVEYANCE DURESS. [Ch. 37 it is absurd to talk of consent or of contract at all. An agreement or conveyance, therefore, extorted by violence or terror, is voidable by him who is subjected to such constraint. But, although it is immaterial whether the constraint proceeds from the other contract- ing party, or from his agent, or some one acting by collusion with him, yet, if no connection is shown to exist between the other con- tracting party and the perpetrator, the validity of the contract is not affected by any violence, nor, in general, by any fraud of which the latter, being such stranger, may have been guilty."^ And so, on the other hand, the general rule is that the duress must be suffered by the part)' who enters into the contract, and that if a stranger, not under its influence, enter into an agreement, in order to obviate the duress which another undergoes, the agree- ment is good. But it seems that the duress to a wife or child would avoid a contract, given under its influence, by the husband or parent.^" Duress may consist either of actual violence, or threat thereof,^'' and may thereifore consist in (1) duress of imprisonment, and (2) duress of threats (per minas).^* The actual violence which constitutes such duress resolves itself always into illegal imprisonment, which- may be in the common prison, or elsewhere, provided only it is a restraint of the person, and is unlawful, or, if lawful, undue and illegal force be used, or the party is made to endure unnecessary and unlawful privation, as want of food, etc., and in order to free himself from such unlaw- ful restraint, or privation, is induced to make the contract, etc.'° Duress per minas, or by threats, on the other hand, is where the party enters into a contract, induced thereto by a reasonable fear, occasioned by threats of (1) loss of life ; (2) loss of member or mayhem; (3) grievous bodily hurt; or (4) imprisonment.*" But a menace of a mere battery, or of a trespass on lands or goods, is not duress, and consequently does not affect the validity of a contract induced thereby; for the law considers that such a threat is not sufficient to overcome a firm and prudent man, seeing that adequate redress may be obtained for such injuries, whereas, for serious and actual personal violence, no damage can be an adequate compensa- SB2 Min. Insts. 646; 1 Chltty, Cont. 269; Bac. Abr. Duress (B) ; Talley V. Robinson, 22 Grat. (Va.) 890. 30 2 Min. Insts. 646; 1 Chitty, Cont. 269; Bac. Abr. Duress (B). 3' 1 Bl. Com. 136, 137. 3 8 2 Min. Insts. 646. 39 2 Min. Insts. 646, 647; 1 Bl. Com. 136, 137; 1 Chitty, Cont. 269; Cadaval V. Collins, 4 Ad. & E. 858. 40 2 Min. Insts. 647 ; 1 Chitty, Cont. 269 ; Bac. Abr. Duress (A). (664) Ch. 37] CONVEYANCE MARRIED WOMEN — COMMON LAW. § 863 tion, and, therefore, even a man of ordinary firmness may be unable to withstand the threat and immediate danger of such personal mischief.*^ It is laid down in the old books *- that a threat to burn one's dwelling is not duress, such as to avoid a bond, etc., made under its influence, because adequate amends may be recovered. But it may well be doubted whether, in modern times, that principle would prevail ; burning a dwelling being not only an offence in some circumstances capital, but being incapable of adequate reparation . in damages, and seriously endangering life.*^ So a threat to prosecute for felony a friend or near relation does not constitute such duress as to avoid a note given in consequence of the threat and in order to avert the prosecution.** § 863. Incapacity of Married Woman to Aliene — At Common Law. Partly upon the theory that at law the wife is one with her husband and that her identity is merged in his, and partly upon the theory that in matters of business in which both r«-e concerned a married woman seldom persistently maintains an opinion and will adverse to her husband, or, in other words, is under her husband's constraining influence,""^ the common law adopts the general rule that a married woman can make no contract nor conveyance, such acts being absolutely void — and this, even though the husband have deserted the wife, or though they live apart by consent, or though they be divorced a mensa, etc.*'' 412 Min. iDSts. 647; 1 Chitty, Cont. 269, 270; Bac. Abr. Duress; Atlee V. Backhouse, 3 JI. & W. 642, 650 ; Astley v. Reynolds, 2 Stra. 917 ; Skeate V. Beale, 11 Ad. & E. 983. 42 Bac. Abr. Duress ; 3 Th. Co. Lit. 69. 43 2 ilin. Insts. 647 ; 1 Chitty. Cont. 272. 44 2 Mill. Insts. 647; Keckley v. Union Bank, 79 Va. 465. 466. 45 2 Min. Insts. 648; ante, § 282. 46 2 Min. Insts. 651; Bac. Abr. Bar. c& F. (M) ; 1 Th. Co. Lit. 133, 134; Marshall v. Button, 8 T. K. .545; Nurse v. Craig, 2 Bos. & P. (N. R.) 148: Hyde v. Price, 3 Ves. Jr. 433 ; Lewis v. Lee, 3 B. & Cr. 291 ; Hookham v. Chambers, 3 Br. & B. (7 E. C. L.) 92; Bogget v. Frier, 11 East, 303; Kay V. Duchesse de Pienne, 3 Campb. 123. To this general doctrine, however, there are some marked exceptions. Thus, for her own protection and advantage, a married woman is allowed to act as a feme sole — (1) Where her husband is civiliter mortuus. At common law this happens when he is attainted of treason or felony, has abjured the realm, or is banished or transported. 2 Bl. Com. 121 ; 4 BI. Oom. 380; Portland v. Prodgers, 2 Vem. 104; Newsome v. Bowyer, 3 P. Wms. 38 ; Lean v. Schutz, 2 W. Bl. 1198 ; Carrol v. Blencow, 4 Esp. 27. (2) Where the husband is an alien enemy. Deerly v. Duchess of Mazarine, 1 Salk. 116. But see De Wahl v. Braune, 1 H. & N. 181. (3) Where the husband is an alien and has never been in this country. See (665) § 863 CONVEYANCE MARRIED WOMEN — COMMON LAW. [Ch. 37 Hence any device, which would make possible a conveyance by a married woman, must surmount or elude these two obstacles — the merger of the wife's legal identity in the husband's and his con- straining influence upon her. By an act of Parliament it might have been done with entire facility ; but an act of Parliament was not easily obtained in the earlier stages of the law, and meanwhile the daily needs of society pressed strongly for the recognition of married women's alienations in some form.*'' § 864. Same — Use of Fines and Common Recoveries. As shown in the preceding section, an act of Parliament not being practicable, the courts and lawyers were put to their invention. It was ob- served that no principle forbade a married woman to be sued, and so her oneness with her husband might be obviated by a collusive ^ suit brought by the intended grantee against the feme covert and her husband, in which there might be, by compromise, or by default, a judgment rendered for the land. And as to the husband's con- straint, it was easy to elude that objection by an examination of the wife, before judgment was allowed to be entered, so as to satisfy the court that she understood the transaction and freely assented to it. And thus, by the device of fines and common recoveries, but especially of fines, the desired end was achieved; nor was any parliamentary method introduced (notwithstanding the American precedents) until by 3 and 4 Wm. IV, c. 74, aided by 8 and 9 Vict, c. 106, and 19 and 20 Vict. c. 108, a married woman was enabled to convey, as with us, with far greater facility and cheapness, by deed, executed with the concurrence of her husband, and accompanied by a privy examination and acknowledgment before certain public functionaries.*^ § 865. Same — Married Woman's Equitable Separate Estate. A'Vhile the common law, as pointed out in the preceding sections, viewed with great strictness the married woman's incapacity, the court of equity, at quite an early period, undertook in some cases to give her much greater freedom in respect to her equitable separate estate. The principle established in equity was that, in the cases Kay V. Duchesse de Pierrne, 3 Campb. 123; Marshall v. Rutton, 8 T. R. 545 ; 1 Bl. Com. 443. note (42). The former doctrine, laid down in Walford v. Duchesse de Pienne, 1 Esp. 554, and Franks v. Duchesse de Pienne, 1 Esp. 558, that the wife may act as a feme sole whenever the husband is an alien, if he has gone abroad, is over- ruled. Cases supra ; Barden v. Keverberg, 2 M. & W. 61, 04 ; 1 Chit. Cont. (11 Am. Ed.) 252, 253. *7 2 Min. Insts. G52. *8Aute, § 282; 2 Min. Insts. 653; 2 Bl. Com. 355; Williams, Real Prop. 226. (066) oil. 37] CONVEYANCE MAEEIED WOMEN— EQUITABLE ESTATE. § 865 proper for the application of the principle, the intention of the par- ty who created the equitable estate in the wife should control, at least in large measure, the question whether the wife should be per- mitted to convey the property so given her, and the method by which such conveyance should be effected. Property thus bestowed upon the wife is known as her equi- table separate estate, and for its creation it is essential that the in- tention should be manifest to settle it upon the wife to her separate use, free from the control of her husband.'"' The whole doctrine of the equitable separate estate is the crea- ture of equity, and sets at naught all or most of the principles of the common law touching the marital relation, and also touching property generally. Thus a wife may be enabled to dispose of her separate estate as freely, and with less solemnity, than a feme sole, to charge it merely by implication, as a feme sole cannot do, and may also be restrained from conveying or charging it at all, a re- straint adverse to one of the most settled doctrines of the general law of property.^" In respect to the power of alienation of a wife's separate estate, a distinction is made between real and personal property.''^ As to personal property, the jus disponendi is incident to it in the fullest manner. The wife may dispose of it absolutely at her pleasure, by deed or will, as if she were a feme sole, unless the in- strument which creates the estate and vests it in her shall impose restrictions, and then these restrictions will constitute the law of the case.^^ In respect to real property, her power of disposition is more cir- cumscribed. If she is not in terms allowed, by the instrument which clothes her with the separate estate, to aliene it in some designated way, she can do so only by will duly executed (for which she must be given statutory capacity), or by deed executed with the formalities prescribed for married women (which will be con- sidered in the following section). ^^ And, it seems, though permit- 4 9 1 Min. Insts. 345 et seq. ; Jones v. Jones, 96 Va. 749, 32 S. E. 463. BOAnte, § 519; 2 Min. Insts. 648; 1 Min. Insts. 345 et seq., 351, 355 et seq. ; 2 Bl. Com. 293, note (12). 51 2 Min. Insts. 648 ; 1 Bishop, Mar. & Div. §§ 860, 869, note (1). 6 2 2 Min. Insts. 648; 1 TIi. Co. Lit. 132, note (N) ; 2 Story, Eq. Jur. § 1393; Grigby v. Cox, 1 Ves. Sr. 518 ; Peacoclt v. Monk, 2 Ves. Sr. 191 ; Feltiplace V. Gorges, 1 Yes. Jr. 46, note (a) ; Wagstaff v. Smith, 9 Ves. 520 ; Essex v. Atkins, 14 Ves. 547; Major v. Lansley, 2 Russ. «& My. 355; Penn v. White- head, 17 Grat. (Va.) 503, 94 Am. Dec. 478. 53Ante, § 282 ; post, § 866 ; 2 Min. Insts. 649 ; Taylor v. Cussen, 90 Va. 40, 17 S. E. 721. (667) § 865 CONVEYANCE — MARRIED WOMEN EQUITABLE ESTATE. [Oh. 37 ted to aliene otherwise than in pursuance of the statute, she is not thereby prechided from adopting the statutory mode.°* The rents and profits of her separate real estate constitute per- sonalty, and may be disposed of accordingly, unless invested in lands. '^^ Where the wife has the power of disposition, she may bestow her separate property as well on her husband as on a stranger, and that not by giving it to a third person to give to him, but by con- veyance directly to himself (unless where she conveys under the statute). But a court of equity will not give sanction or effect to a conveyance to the husband, without first subjecting the wife to a privy examination, and adopting such other precaution as shall seem needful to ascertain her freedom of action.^" As to the wife's power to charge her equitable separate estate, the English doctrine is that, although a married woman is incapable, in general, of charging her person during the coverture with any engagement whatsoever, yet, as she may dispose of her separate estate in chattels as if she were sole, she may charge it also at her pleasure, unless restricted by the instrument creating the estate. And not only may she charge it directly and expressly, but also by implication. Thus, if a married woman promise to pay money, or to do a collateral thing, the promise, so far as her person is con- cerned, is merely void ; but if she has separate personal estate, or, indeed, real estate either, she is considered as intending by the promise, whether verbal or written, to charge the estate with it. For, it is argued, she must have intended something by her prom- ise ; and as she must be taken to know that she could not charge her person by it, the promise must be construed (ut res valeat, etc.) as designed to pledge her separate estate, notwithstanding the diffi- culty of conceiving upon what principle she can charge her estate thus, by implication, when she is admitted not to be sufficiently a free agent to bind her person by express words.''' § 866. Same — Married Woman's Statutory Conveyance in the United States. From an early date statutes have existed in this 54 2 Mln. Insts. 649 ; Lee v. Bank of United States, 9 Leigh (Va.) 209. 55 2 JIlu. lusts. 649; 2 Briglit, Husb. and Wife, 224 et seq. ; Hume v. Hord, 5 Gi-at. (Va.) 374 ; Southby v. Stonehouse, 2 Ves. Sr. 610 ; Hearle T. Green- bank, 1 Ves. Sr. 301 ; Hodsden v. Lloyd, 2 Bro. Cli. 534 ; Churcliill v. Dibben, 9 Sim. 447. 06 2 Min. Insts. 649; 2 Story, Eq. Jur. §§ 1395, 1396; 2 Bright, Husb. and Wife, 257; Grigby v. Cox, 1 Ves. Sr. 518; Essex v. Atkins, 14 Ves. 542; Tykes v. Smith, 1 Ves. Jr. 189 ; Muller v. Bayly, 21 Grat. (Va.) 521. 5T 2 llin. Insts. 6r)0 ; 2 Bright, Husb. and Wife, 252 et seq. ; Hulme v. Tenant, 1 Bro. Ch. 16, 1 White & Tud. Lead. Gas. Eq. 361 et seq. ; JIurray v. Barlee, 3 My. & K. 223 ; ONvens v. Dickinson, 1 Cr. & Phil. 53, 54, note (13). (608) Ch. 37] CONVEYANCE ATTAINTED PERSONS. § 867 country by which the deeds of married women have been effectual, not only to bar their inchoate rights of dower, but also to convey their separate estates, statutory or equitable. These statutes sub- stitute certain formalities in the execution or acknowledgment of a deed for the fines and common recoveries of the common law ; and in some cases, the recordation of such a deed is a prerequisite to its validity. As the legislation on the subject is by no means uni- form, the statutes must be studied locally for their provisions. The allowance of such a conveyance is an exception to the gen- eral principles of the common law, and must for that reason be strictly construed. A literal compliance with the prescribed forms is not, indeed, required ; but any substantial departure therefrom, in whatever particular, will wholly invalidate the instrument. '^^ It is to be noted that these statutes only remove the disabilit}' of coverture for the purpose of conveying the land or of barring dow- er. Consequently they do not by implication enable a married woman to bind herself by any covenant in her deed, nor to estop- herself thereby.^' § 867. Incapacity of Person Attainted of Tresison or Felony tO' Convey. At common law, persons attainted of treason or felony are incompetent to convey from the time of the offence committed, because from that time the lands are liable to be forfeited to the crown. *" The common-law rule is not in force in the United States. Nev- ertheless Congress has passed several acts, known as "Confiscation Acts," under which property is subject to forfeiture. Under one of these acts, land used for insurrectionary purposes with the con- sent of the owner may be judicially declared forfeited, and the fee may be sold, notwithstanding the provision of the United States Constitution which declares : "No attainder of treason shall work 5 8 Hepburn v. Dubois, 12 Pet. 375, 9 L. Ed. 1111; McGlennery v. Miller, 90 N. C. 215. "iSfor does the fact that she has received the consideration and kept it, or induced the purchaser to make expensive improvements, suffice to pass the title." 3 Washburn, Real Prop. (6th Ed.) § 2101. See Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815. 6 6 Perkins v. Richardson, 11 Allen (Mass.) 539. But some of the statutes go further than merely to give effect to the deed, and they permit the grantor (married woman) to bind herself by her covenants. 3 Washburn, Real Prop. (6th Ed.) § 2106. As an example of the strictness with which these statutes are construed: A power to convey by a deed executed according to certain formalities will not enable a married woman to convey by attorney, although the power of attorney be executed with the formalities prescribed for the deed. Kearney r. Macomb, 16 N. J. Eq. 189; Wright v. Blackwood, 57 Tex. 644. 60 2 Min. Insts. 655, 589; 2 Bl. Com. 290. (6G9) § 868 CONVEYANCE — ALIENS. [Ch. 37 corruption of blood or forfeiture, except during the life of the per- son attainted." ^^ § 868. Incapacity of an Alien to Convey. At common law aliens may take lands by purchase, or act of the party, but not by descent, which is an act of the law; nor can they, although they may take by purchase, hold even in that case. Hence, as lands in the possession of an alien are always liable to be forfeited, he can at common law make no good title thereto.'^ In this country the disabilities of aliens have been removed in whole or in part by state statutes, and in some cases by foreign trea- ties. But, even where the disabilities of alienage still exist, an alien may hold land acquired by purchase until office found, and mean- while pass a good title thereto."^ § 869. Incapacity of a Corporation to Convey. In England corporations acquiring lands without license from the crown, con- trary to the statutes of mortmain, are, by those statutes, liable to forfeit the same, and therefore can convey no perfect title thereto.*^ But generally in this country, even where the law expressly pro- hibits a corporation from "acquiring" more than a certain amount of real estate, if, notwithstanding, it does acquire more, and then transfers the same, such transfer is valid, and passes a good title to the purchaser, upon the theory that, if the corporation has violated the law, it is for the state to complain thereof through a writ of quo warranto or other proceeding for the revocation of the charter, or possibly for the escheat of the land (as being without a lawful own- er), but private persons cannot take advantage of the corporation's violation of law."^ § 870. Incapacity to be Alienee — In General. Lands may in general be aliened to any person whomsoever; the exceptions be- 01 Article 3, § 3, par. 2. The Supreme Court lield that under Act Aug. 6, 1861, c. 60, 12 Stat. 319, the fee in the property could constitutionally be con- fiscated by virtue of the power given to Congress to naake rules concerning captures on land and water (article 1, § 8). The confiscation is not a punish- ment meted out to the owner for his act, but is decreed because the property has been devoted to insurrectionary purposes and must sufeer the conse- quences. Kirlc V. Lynd, 106 U. S. 315, 1 Sup. Ct. 296, 27 L. Ed. 193. 62 2 Min. Insts. 655, 656; 2 Bl. Com. 293. 63 1 Washburn, Real Prop. (6th Ed.) §§ 131, 132; 1 Dembitz, Land Titles, 303. See Haley v. Sheridan, 190 N. T. 331, 83 N. E. 296; Manuel v Wulff 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532. 6*2 Min. Insts. 589 et seq„ 656; 2 Bl. Com. 268. 6 5 Chesapeake & O. R. Co. v. Walker, 100 Va. 69, 40 S. E. 633 914- Co well V. Colorado Springs Co., 100 U. S. 55, 25 L. Ed. 547; Jones v. Habersham 107 U. S. 174, 2 Sup. Ct. 336, 27 L. Ed. 401 ; Mallett v. Simpson, 94 N C 3 1, .j5 Am. Rep. 595. But see 2 Min. Insts. 596. (G70) Ch. 37] CONVEYANCE — ALIENEE DEAD. § 872 ing fewer than in the case of persons ahening, because every con- veyance is supposed to be for the benefit of the grantee."" Thus persons wanting in understanding or in freedom of will may take as alienees; and as it is usually for the alienee's benefit, the conveyance will be commonly good until the party, being re- stored to competency, shall plainly declare his intention to waive it. Thus, an infant or nonsane person may be a grantee, with the privilege, upon the removal of his disability, to agree to or avoid it, without any cause shown ; a privilege which descends also to his heir, if he dies before the removal of the disability, or before agree- ing to the transaction. And so, when a married woman is grantee, the conveyance is not void, as it is where she is grantor, but con- tinues good during coverture, unless avoided by the husband's dis- sent, and, after the coverture ended, may be avoided or confirmed by her or her heirs. "^ § 871. Same — Grantee Insufficiently Designated. Persons in- sufficiently designated, so that it is not reasonably certain who is intended, can take nothing by any sort of conveyance. So, if the beneficial object for which the conveyance is designed be undefined, the conveyance is void. Hence a conveyance to an unincorporated association (as a religious congregation, etc.), or to the unborn bastard child of such a man, or for an object of general philanthropy (as the establishment of a place of education, or the benefit of the trade of a town), is independently of statute, inoperative and void."* § 872. Same — Alienee Dead at Time of Transfer. A deed to a grantee who is dead at the time the deed is executed is void at com- mon law for want of a grantee, and the fact that the deed is to the dead man "and his heirs" does not carry title to his heirs, because those words were not intended to be words of purchase, but merely words of limitation, describing the estate of the grantee; it being intended that the heirs should take, if at all, by descent only from the grantee, and not as purchasers under the deed."'' 66 2 Mm. Insts. 656; 2 Bl. Com. 292; 2 Tli. Co. Lit. 214; Sheppard's Touchst. 235. 67 2 ilin. Insts. 656 ; 2 Bl. Com. 292 ; 2 TIi. Co. Lit. 214, 215 ; Sheppard's Touchst. 235. Even an infant en ventre sa mere, if sufHciently described, may take as a grantee in a deed. See Morris v. Caudle, 178 111. 9, 52 N. E, 1086, 44 L. R. A. 489, note, 69 Am. St. Rep. 2S2. 6 8 Ante, § 463 et seq. ; 2 Min. Insts. 657. 60 1 Devlin, Deeds, § 187; Lewis v. McGee, 1 A. K. Marsh. (Ky.) 199; Hunter v. Watson, 12 Cal. 363, 376, 73 Am. Dec. 543. See, also, Mclnerney V. Beck, 10 Wash. 515, 39 Pac. 130; Simmons v. Spratt, 22 Fla. 370. It would probably be otherwise, if the deed were to the dead grantee "or his heirs." (671) § 872 CONVEYANCE ALIENEE DEAD. [Ch. ST Independently of statute, the same rule applies to a devise, so that if a devisee is dead at the time the testator executes the will, or, indeed, if he dies at any time before the death of the testator him- self, the devise is void, or, in technical language, lapses, and the heirs of the dead devisee are not entitled to the property thus de- vised, even though expressly mentioned.'" § 873. Alien as Alienee. The common law, under no circum- stances, permitted aliens to hold lands, save that persons engaged in trade might hire habitations and houses of business ; and any alien who presumed to acquire any permanent estate in real prop- erty, whether in fee simple, for life, or for years, was liable to have the same immediately escheated to the crown. '^ We have already seen that the disabilities of alienage have to a large extent been removed in this country b)' statute.''^ § 874. Corporation as Alienee — In England. Alienation in mortmain (in mortua manu) is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. But these purchases having been in early times made chiefly by religious houses (e. g., monasteries, etc.), in consequence whereof the lands became perpetually inherent in one dead hand (monks being esteemed civilly dead), this has occasioned the general ap- pellation of mortmain to be applied to alienations to all corpora- tions, and the religious houses themselves to be principally con- sidered in forming the statutes of mortmain. And it will be curi- ous, in deducing the history of these statutes, to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the pertinacity with which suc- cessive Parliaments pursued them through all their artifices; how now remedies still begot new evasions, till the Legislature at last, though not without repeated failures, obtained a decisive victory.'^ . By the common law, after the feudal restraints upon alienation were worn away, any man might dispose of his lands to any other private person at his own discretion, and a corporation is as ca- pable of purchasing as an individual.'* But in consequence of feudal policy, in part, but also from high considerations of general expediency, it was always, and in England still is, necessary for corporations to have license in mortmain from 'opost, § 3030 et seq. -lAnte, § 868; 2 Min. Insts. 658; 1 Min. Insts. 164 et seq. See Elmou- darff V. Carmiehael, 3 Litt. (Ky.) 472, 14 Am. Dec. 97, note. '2 Ante. § 868. 73 2 Mill. Insts. 590; 2 HI. Com. 268. 7-4 2 Min. Insts. ."90, 591; 1 Tli. Co. Lit. 188 et seq.; Case of Sutton's Hospital, 10 Co. 300. (072) Ch. 37] CONVEYANCE STATUTES OF MORTMAIN. § 87G the c^o^yn, to enable them, not indeed to purchase, but to hold, lands ; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits by the vesting of lands in tenants that can never be attainted or die. And, indeed, such licenses in mortmain seem to have been necessary before the Norman Conquest. But besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was an inter- mediate lord between the king and the alienor, to obtain his license^, also (upon the same feudal principles), for the alienation of the spe- cific land. And if no such license was obtained, the king or other lord might respectively enter on the land so aliened in mortmain as a forfeiture. Yet such were the influence and ingenuity of the clergy that (notwithstanding this fundamental principle) the most consid- erable dotations to religious houses happened within less than two centuries after the Conquest.''' § 875. Same — First Device to Evade Law of Mortmain. The first device in order to evade the necessity for a license seems to have been this : The tenant who meant to alienate, first conveyed his lands to the religious house, and instantly took them back again to hold as tenant to the monastery, which kind of instantaneous seisin was probably held not to occasion any forfeiture, and then, by pretext of some other forfeiture, or escheat accruing in conse- quence of the feudal relation, the society entered into these lands in right of such their newly acquired seigniory, as immediate lords of the fee. But when these dotations began to grow numerous, it was observed that the feudal services ordained for the defence of the kingdom were every day visibly withdrawn, that the lords were curtailed of the fruits of their seigniories, their escheats, wardships, reliefs, etc., and that the circulation of landed property from man to man (a vastly important element of prosperity in every state) began to stagnate; and, therefore, in order to arrest those mischiefs, it was ordered by the s'econd of Henry Ill's great charters, and aft- erwards by that printed in the statute book (9 Hen. HI, c. 36, A. D. 1225), which, by the way, is the earliest English statute now extant, that none should "give his lands to any religious house" and that all such contrivances should be void, and the land be for- feited to the lord of the fee.'" § 876. Samei — Second Device to Evade Statutes of Mortmain. As the prohibition contained in Magna Charta extended only to 75 2 Mill. Insts. .591; 2 Bl. Com. 268, 269; 1 Stephens. Com. 422. T6 2 Min. Insts. .591, 592; 2 Reeves, Hist. Eng. I.iiw. 84, 85; 2 Bl. Com 269, 270 ; 1 Stephens, Com. 422, 423, note (g) ; 1 Stats, at Large, 9 Hen. Ill, c. 36. Minor & W.Real Pkop.— 43 (678) § 877 CONVEYANCES STATUTES OF MORTMAIN. [Ch. 37 religious houses, bishops, and other sole corporations, were not in- cluded therein; and the aggregate ecclesiastical bodies also found means to creep out of this statute, by buying in lands that were bona fide holden of themselves, as lords of the fee, and thereby evading the forfeiture, or by taking long leases for years. This was the second device adopted in order to evade the necessity for a li- cense. It was speedily met by the statute de religiosis (7 Edw. I, St. 2, A. D. 1279), which provided that no person, religious or other, whatsoever, should buy or sell, or receive under pretence of a gift or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself any lands or tenements in mortmain, upon pain that the immediate lord of the fee, or on his default for one year, the lords paramount, and in default of them, the king, might enter thereon as for a forfeiture.''^ § 877. Same — Third Device to Evade Statutes of Mortmain. Notwithstanding the solicitude with which this statute seems to have been penned, a method of evasion (their third device) was soon discovered by the ecclesiastics. This was to recover lands by default, in a collusive suit brought by the religious house against the person who had in contemplation to bestow lands in mort- main ; for although this proceeding, being by consent, was in fraud of the policy of the law, yet, as the statute 7 Edw. I, extended only to gifts and conveyances between the parties, the justices held that the religious and ecclesiastical persons did not appropriate such lands per titulum doni vel alterius alienationis, as it was expressed in the statute, and that they were not within the words aut alio quovismodo arte vel ingenio, because, the recoveries being prose- cuted in a course of law, they were presumed to be just and lawful, and therefore it was determined that they were not within the stat- ute. And thus the ecclesiastics had the honor of inventing those fictitious adjudications of right, which constituted for several cen- turies the great assurance of the kingdom, under the name of com- mon recoveries. But upon this Parliament intervened again, and by statute Westm. II, 13 Edw. I, c. 32 (A. D. 1285), enacted that in such cases a jury shall try the true right of the demandants or plaintiffs to the land, and, if the religious house or corporation be found to have it, they shall still recover seisin, otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the default of the immediate or other lord; and when, in the eighteenth year of the same sover- eign, the statute quia emptores was passed, allowing all men to 77 2 Min. Insts. 592; 2 Bl. Com. 270; 1 Stephens, Com. 423; 2 Reeves, Hist. Eng. Law, 154. (674) Ch. 37] COXVEYAXCES — TO CORPORATIONS. § 879 alienate their lands, a proviso was inserted that this should not ex- tend to authorize any kind of alienation in mortmain.'' ° § 878. Same — Fourth Device to Evade the Statutes of Mort- main. The fourth device vi^as more ingenious and more far-reach- ing in its consequences than any of the preceding. For almost a hundred years after 13 Edw. I, c. 32 (A. D. 1285), the clergy were constrained to content themselves with such acquisitions of lands as they could obtain a license for from the crown. In the latter part of the reign of Edward III, however (say about A. D. 1370), they fell upon a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees (whom in modern times we should style trustees) to the use of the religious houses, thus distinguishing between the possession and the use, and themselves receiving the actual profits, while the seisin of the land remained in the nominal feoffee, who was held by the courts of equity, after some fluctuations, to be bound in conscience to account to his cestui que use (so the beneficiary was called) for the rents and profits of the estate. And it is to this invention, the idea of which was derived from the fidei commissa of the Roman law, that the Anglican world is indebted for the introduction of uses and trusts, the nature of which we have already seen,''^ and which enter so largely into modern property arrangements. But, unfortunately for the inventors themselves, they did not long en- joy the advantage of their new device, for the statute 15 Rich. II, c. 5 (A. D. 1392), enacts that the lands which had been so pur- chased to uses should be amortised (that is, conveyed in mortmain) b}- license from the crown, or else be aliened to some other use, and that all future purchases in that way were to be considered as with- in the statutes of mortmain. And civil or lay, as well as ecclesias- tical, corporations are also declared to be within the mischief, and of course within the remedy, provided by those laws.^" The clergy, finding that the Legislature was as persistent in an- nulling and obviating their contrivances as they had been fruitful and ingenious in devising them, now gave up the contest, and no more attempted to thwart the settled policy of the realm. ^^ § 879. Same — Corporation as Alienee in the United States. The English statutes of mortmain are not in force in this country, ex- cept in Pennsylvania.*^ The charters of corporations, however, generally limit the amount of real property they may acquire. 78 2 Jlin. Insts. 592, 593; 2 Bl. Com. 271. TOAnte, § 397 et seq. ; 2 Min. Insts. 204 et seq. 80 2 Min. Insts. 593, 594; 2 Bl. Com. 271, 272; 1 Stephens, Com. 425; 3 Beeves, Hist. Eng. La\v, 178, 179. 81 2 Min. Insts. 594. s2 2 Kent, Com. 283. (G75) § 880 CONVEYANCES TO ATTAINTED PERSONS. [Ch. 37 These statutes are liberally construed, and according to the pre- vailing opinion, if a corporation purchase land in excess of its needs, the title is notwithstanding good in the corporation, even as to the excess, except perhaps at the instance of the state itself, in a proceeding instituted directly for the purpose of depriving the corporation of the property, as by escheat; and even this is very doubtful. Indeed, the better opinion seems to be that while the state may for such cause institute a proceeding in the nature of a quo warranto, or an equivalent procedure, to forfeit the charter of the corporation, the title to the land itself remains in the corpo- ration or its alienees, and upon the dissolution of the corporation its property does not go to the state by way of escheat for lack of owners, but after payment of debts is to be divided among the stock- holders in proportion to the shares they hold.*' § 880. Persons Attainted of Treason or Felony as Alienees. A person attainted of treason or felony may, at common law, before or after attainder, be a grantee ; but he cannot hold the thing grant- ed, for, if the king or lord will, he may have it from him by forfei- ture or escheat.** In this country attainder of f&lony nowhere works corruption of blood, and thus a person attainted may not only take, but may hold and dispose of, lands as freely as others.^" § 881. Fiduciary as Alienee. Trustees, agents, attorneys, and other persons occupying a fiduciary relation, cannot lawfully deal for their own benefit touching the subject-matter committed to them ; and any such transactions are regarded as constructively fraudulent (however transparently fair they may actually be), and are voidable at the election of the beneficiary.** 83 Chesapeake & O. R. Co. v. Walker, 100 Va. 69, 40 S. E. 633, 914; Bo- gardus v. Trinity Cliurch, 4 Sandf. Ch. 633, 757. «4Ante, § 785; 2 Jlin. lusts. 588, 659; 2 Tli. Co. Lit. 214; 3 Preston, Abst. 407. 85 3 Wasliburn, Real Prop. (6tli Ed.) § 18.">8; Carpenter's Estate, 170 Pa. 203, 32 Atl. 037, 29 L. R. A. .145, .50 Am. St. Rep. 705; Shellenberger v. Ransom, 41 Neb. 031, 59 N. W. 935, 25 L. R. A. 564. A doctrine which bears some resemblance to the common-law "corruption of blood" has been enunciated in New York. It was held, on the ground that no one should be allowed to talie advantage of his own wrong, that one killing his ancestor for an estate which would naturally come to him by the statute of descents could not inlierit. 3 Washburn. Real Prop. (0th Ed.) § 1858, citing Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340. 12 Am. St. Rep. 819. 86 2 Min. Insts. 659; 1 Story, Eq. Jur. § 311 et seq. ; 3 Sugden, Vendors, 225; Pox V. Mackreth, 2 Bro. Ch. 400, 2 Cox, 320, 1 White & Tud. Lead. Cas. Eq. 105, 126, et seq. ; Buckles v. Lafferty, 2 Rob. (Va.) 294, 40 Am. Dec. 752 ; Michoud v. Girod, 4 How. 554, 11 L. Ed. 1076. See ante, § 424 et seq. ((i7(j) CHAPTER XXXVIII. TITLE BY CONVEYANCE CONTINUED— II. THE DEED, § 882. Circumstances under Which a Deed is Required. Common-Law Doctrine. 883. Doctrine in England under Statute of Frauds. 884. Doctrine in the United States by Statute. S8.5. General Nature of a Deed. 886. Several Kinds of Deed. Deeds Indented and Deeds Poll. 887. Effect of Deeds Poll and Deeds Indented, Respectively, as to Per- sons Not Parties Thereto. 888. Conveyances Made by Agents or Attorneys in Fact under Powers of Attorney. 889. Competency of Parties to Deed. 890. The Form and Formalities of a Deed — Discussion Outlined. 891. I. Deed Written on Paper or Parchment. 892. II. The Premises. 893. III. The Habendum. 894. IV. The Tenendum. 895. V. The Reddendum. 896. VI. The Condition Clause. 897. VII. The Ancient Warranty or Covenant Real. 898. Effect of Ancient Warranty as to Compensation Made for Loss of Land by Title Paramount. 899. Effect of Ancient Warranty in Rebutting or Estopping the Claims of Warrantor or His Heirs. 900. VIII. Personal Covenants in the Deed. 901. Personal Covenants Not Running with the Land. 902. Personal Covenants Affecting Land Not Conveyed. 903. Personal Covenants Running with the Land. 904. Personal Covenants of Title — Implied Covenants of Title. 905. Express Covenants of Title — Enumeration. 906. Covenant of Seisin. 907. Covenant of Right and Power to Convey in Fee Simple. 908. Covenant for Quiet Enjoyment. 909. Covenant against Incumbrances. 910. Covenant for Further Assurance of Title. 911. Covenant of Special Warranty. 912. Covenant of General Warranty. 913. Liaiiility of Remote Grantors upon Personal Covenants of Title. 914. Extent or Measure of Recovery upon Personal Covenants of Title. 915. Effect of Personal Covenants of Title in Estopping Gran- tor to Set Up After-Acquired Title. 916. IX. Conclusion of the Deed. 917. X. Reading the Deed. 918. XL Sealing and Signing the Deed. 1. Origin of the Seal. 919. 2. Deed to be Signed as Well as Sealed. (677) DEED. [Ch. 38 § 920. 8. Nature of the Seal. Common-Law Doctrine. 921. Statutory Requirements as to Sealing In the United States. 922. XII. Delivery of the Deed. 923. Mode of Making Delivery. 924. Proof of Delivery. 925. Conditional Delivery or Delivery In Escrow. 926. XIII. Attestation of Deed by Witnesses or Acknowledgment Thereof by Grantor. 927. XIV. Registry of the Deed. 928. Description of Property Conveyed. In General. 929. Various Methods of Describing Land In Conveyances — Enumeration. 930. I. Description by Government Survey. 931. II. Description by Reference to Plat or Map. 932. III. Description by Monuments, Courses and Distances or by Metes and Bounds. 933. IV. Description of City Lots by Reference to Streets and Num- bers. 934. V. Description by Reference to a Prior Conveyance. 935. VI. Description by Quantity of Land or Number of Acres. 936. VII. Effect of Deed in Passing with the Land aU Buildings, Privi- leges and Appurtenances. 937. The Consideration Supporting the Deed — Discussion Outlined. 938. I. Effect of Want of Consideration. 039. II. Effect of Recital in Conveyance of Payment of Consideration. 940. III. Illegal Considerations in General. 941. IV. Considerations Involving Fraud — Discussion Outlined. 942. A. Fraud in Esse Contractus, That Is, In the Execution of the Conveyance. 948. B. Fraud in the Procurement or Inducement, Directed against a Party to the Deed. 1. Actual Fraudulent Representations or Concealments. 944. 2. Fraud Manifested In Inequitable Bargains. 045. 3. Fraud Presumed from the Circumstances and. Condi- tion of the Parties. 946. C. Fraud in the Procurement or Inducement, Directed against Third Persons. (A) Catching Bargains with Heirs, Reversioners and Other Expectants. 947. (B) Fraud Directed against Third Persons Generally. 948. (C) Conveyances in Fraud of Creditors. 949. Same— The Grantor's Intent. 950. Same — The Form of the Transfer or Conveyance. 951. Same— Grantee's Participation In Grantor's Fraud. 952. Same— The Want of Consideration. 053. V. Considerations Involving llistake or Misapprehension. 054. (I) Considerations Involving Mistakes of Law. 955. (II) Considerations Involving Mistakes of Fact. 956. Effect upon Deed, Validly Executed, of Matter Arising Ex Post Facto — Discussion Outlined. (678) Ch. 38] DEED — STATUTE OF FRAUDS. § 883 § 957. I. Effect of Erasure, Interlineation or Other Alteration. 1. In Case of Contracts Executed. 958. 2. In Case of Contracts Executory. A. Alteration by a Stranger. 959. B. Alteration by Party to Contract or One Interested. 960. II. Effect of Breaking Off or Defacing the Seal. 961. III. Effect of Cancelling the Deed. 962. IV. Disclaimer of Title by Grantee. 963. V. Effect of . Disagreement of Persons Whose Concurrence Is Necessary. § 882. Circumstances under Which a Deed is Required — Com- mon-Law Doctrine. No writing was required at common law for any form of conveyance, except for the conveyance of incor- poreal rights by way of grant — a form of conveyance yvhose use at common law was confined to the transfer or creation of those rights which were incapable of passing by livery of seisin, and which were therefore said to lie in grant. ^ Otherwise, for the transfer of terms for years, nothing was required but a verbal agree- ment, consummated by the lessee's taking possession, whether the lessor were present or not, or whether he were living or not; for the transfer of freeholds there must have been an agreement in presenti, and an actual delivery of the possession of the freehold by the vendor to the vendee, i. e., a livery of seisin. Hence lands, as to the immediate freehold thereof, were said to lie in livery.^ Contracts to convey either a freehold or a term for years may, at common law, be by parol, without any writing whatever.^ § 883. Same — Doctrine in England under Statute of Frauds. Under the English statute of frauds a'nd perjuries, 29 Car. II, c. 3, §§ 1^, all original estates of freehold, and for a term exceeding three years, can be conveyed only by a deed or writing ; and all assignments, whether of leases for years, or for life, and all sur- renders of the same must also be by deed or note in writing. Free- holds, however, must be accompanied by livery of seisin. Those not exceeding three years can be conveyed by parol agreement and entry, as at common law.* Contracts for future conveyances, or for future leases, for any in- terest whatever in lands, are by section 4 of the statute, required 1 Post, § 968 ; ante, § 132. 2 Ante, §§ 132, 320 ; 2 Jlin. Insts. G60, 80, 184 ; 2 Bl. Com. 144 ; 1 Th. Co. Lit. 630, note (6), 318, note (T) ; 2 Th. Co. Lit. 404, note (A), 224, note (A). 3 Ante, § 321 ; 2 Min. Insts. 660 ; 1 Th. Co. Lit. G28. 630, note (6) ; Maldon's Case, Cro. Eliz. 33; Benton v. Crowell. Cro. Eliz. 30C. 4 2 Min. Insts. GGO; 2 Th. Co. Lit. 404, note (A), 566, note (5). (679) § 883 DEED — STATUTE OP FRAUDS. ' [Ch. 38 to be in writing, and signed by the party to be charged or his agent.'' And by the later statute, 8 & 9 Vict. c. 106 (usually termed "the statute of grants"), it is provided that all lands, as to the convey- ance of the immediate freehold thereof, shall lie in grant as well as in- livery" — that is, shall pass by deed (alone) as well as by livery of seisin. ° § 884. Same — Doctrine in the United States by Statute. By statutes which are generally known as the "statutes of convey- ances," and which follow more or less exactly the English statute 29 Car. II, c. 3, §§ 1, 2, 3, a deed is required in nearly every state in this country in order to convey, inter vivos, any freehold estate or for a specified term of years in land. There are also statutes, known as the "statutes of parol agree- ments," corresponding to 29 Car. II, c. 3, § 4, by which executory contracts for the sale of land or for the lease thereof for more than a specified time (generally one year) are required to be in writ- ing, signed by the party to be charged, or his agent. Furthermore, the effect of the statutes of conveyances is that in almost any state a deed which conforms to the requirements of the statute dispenses with the necessity for livery, actual or construct- ive, and, whether in presenti or in futuro, will be upheld, although it could not be sustained for any reason as a common-law convey- ance or as a conveyance under the statute of uses.^ § 885'. General Nature of a Deed. A deed (factum) is a writ- ing on parchment or paper, sealed and delivered.^ Except under comparatively recent statutes (or, at common law, in case of the conveyance of incorporeal rights by way of grant "), the deed does not of itself operate as a conveyance of the realty, but merely as an evidence that it has been conveyed — a mere muni- ment or evidence of the title, which, while not essential to the validity of the conveyance at common law, was a very common and most important accompaniment thereof, since it gave a much more secure foundation to the title than the memories of witnesses of the livery of seisin could furnish. '^'' There were many different modes of conveyance at common law, each appropriate to a particular condition of affairs, such as a "feoff- B 2 Min. Insts. 660. s o Mln. Insts. 660. ^ 2 Min. Insts. 661 ; 3 Washburn, Real Prop. (6th Ed.) § 2264. s 2 Min. Insts. 661 ; 2 Th. Co. Lit. 224, 232 ; Sheppard's Touchst. 50. What is a sealing, and what a delivery, will be explained later. Post, S 920 et seq., 922 et seq. See 2 Min. lusts. 661, 727 et seq., 731 et seq. ; 2 Bl. Com. 305 et seq. « Post, § 968. 10 Ante, § 132. (680) Ch. 38] DEED — INDENTED OE POLL. § 886 ment" to pass a fee simple, a "gift" to create a fee tail, a "lease" wherever there was a reversion in the grantor, an "exchange," a "re- lease," a "surrender," etc., all of which will be considered hereaft- er/^ Few, if any, of these absolutely required at common law that a deed should accompany them, but to all a deed was the usual ac- companiment, because of the additional security thereby given to the title transferred. It was not until the statute of frauds, 29 Car. II, c. 3, §§ 1, 2, 3, that a deed or writing was required to accompany a conveyance of land, as we have seen.^- § 886. Several Kinds of Deed — Deeds Indented and Deeds Poll. Deeds are either (1) deeds indented, or (2) deeds poll. A deed indented (or indenture) is a deed inter partes, where the parties on opposite sides mutually stipulate. ^^ A deed indented, or an indenture, is so called because originally all deeds inter partes, where the parties mutually stipulated, were indented or toothed like a saw, on the edge, a practice which is ac- counted for thus : Formerly, deeds being more concise than they have since become, it was usual to write both parts (each party having a copy — a part, as it was called) on the same piece of parch- ment, with some word, or letters of the alphabet written between them, through which the parchment was cut, either in a straight or indented line (more frequently the latter), in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists, and with us chirographa, or handwritings, the word chirographum being usual- ly that which is divided in making the indenture ; and this custom was still preserved in England, in making out the indentures of a fine, down to a very recent period (A. D. 1834), when, by statute 3 & 4 Wm. IV, c. 74, fines were abolished. But for many genera- tions past, in ordinary transactions, indenting only is used, or rather cutting the parchment or paper in a waving line on the top or side, without cutting through any letters at all ; and it seems now to serve little other purpose than to give name to the species of the deed. Indeed, the better opinion is that it is the deed's being inter partes, that is, containing mutual stipulations between the parties, and not its having its top or side indented, which constitutes an in-, denture. When the' several parts of an indenture are interchange- ably executed by the several parties, that part or copy which is ex- ecuted by the grantor is usually styled the original, and the rest are counterparts ; though in modern times it is most frequent for all the parties to execute every part, which renders them all originals.^* 11 Post, § 964 et seq. 12 Ante, § 883. i« 2 MIn. Insts. 6G2. 1*2 Min. Insts. 662, 663; 2 BI. Com. 295, 296; Williams, Real Prop. 74, 75. (681) § 886 DEED INDENTED OE POLL. [Oh. 38 A deed poll, on the other hand, is a deed, the stipulations of which are altogether on one side, without any reciprocal stipulations on the other.^^ It owes its designation to the fact that originally it was not indented on the edge, but smooth (factum politum).^* The deed poll is not, strictly speaking, an agreement between two or more persons, but a declaration under seal by some one or more particular persons respecting an agreement or stipulation made by him or them with some other person or persons.^'' § 887. Same— Effect of Deeds Poll and Deeds Indented, Re- spectively, as to Persons Not Parties Thereto. A deed poll, wheth- er deriving its effect from the common law or some statute, does, immediately upon its execution by the grantor, devest the estate out of him, and put it in the party to whom it is by the deed ap- pointed to pass, though in his absence, and without notice to him, till some disagreement to such estate appears. No man, indeed, can be forced to take an estate against his will ; but the law natural- ly presumes that every estate is beneficial to the party to whom it is given, and, therefore, that he assents to it until and unless he renounces it. And hence, in such cases, the assent of the grantee is implied, first, because of the supposed benefit; secondly, because it is incongruous and absurd that when a conveyance, at least by a deed poll, is completely executed on the grantor's part, the estate should continue in him ; thirdly, and especially, in order to pre- vent any uncertainty as to where the freehold is vested. Accord- ingly, while on the one hand acceptance of a deed is not essential to give it validity, disseijt is one of the modes of avoiding it.^^ A deed indented, or an indenture, on the other hand, is a mutual agreement between two or more persons, whereby each stipulates for something on his part. And where a conveyance is effected by means of such a deed, although at common law, if a limitation were made by way of remainder to a stranger, not a party to the deed, it is valid if the stranger, upon the determination of the particular es- tate, enters and agrees to have the lands by force of the indenture, 16 2 Min. lusts. G63. io2 Min. Insts. 663; 2 Bl. Com. 296. 17 2 Min. Insts. 900. 18 2 Min. Insts. 900. 901; 2 Bl. Com. 309; Sheppard's Touchst. 285; But- ler & Baker's Case, 3 Co. 26b, note (B) ; Townsend v. Tickell, 3 B. & Aid. 31 ; Garnons v. Knight, 5 B. & Cr. 671 ; Sklpwith v. Cunningham, 8 Leigh (Va.) 281 et seq., 31 \m. Dec. 642. If the grantee accepts a deed, without himself executing it, the deed containing what purports to be covenants on his part to pay notes given for deferred purchase money, his acceptance of the deed binds him to observe such promises or imdertakings as are therein Imposed upon him, but his obligation is not in the nature of a promise under seal, but a simple contract only. Taylor v. Forbes, 101 Va. 663, 44 S. E. 888. (682) Ch. 38] DEED — POWER OF ATTORNEY. • § 888 SO that he would thereupon be bound to perform any conditions contained in the indenture; yet no stranger can take, in this case, any present estate in possession, because he is a stranger to the deed." § 888. Conveyances Made by Agents or Attorneys in Fact under Powers of Attorney. Because of the owner's prolonged absence, or his nonresidence, or for other reasons, it is sometimes necessary or convenient to appoint an agent who may make a valid convey- ance of one's land. An important distinction exists between such an agent or at- torney in fact and the ordinary "real estate agent"or broker (whose function is merely to bring the vendor and vendee together) in re- spect to the form of the authority given them, respectively. In the case of the real estate agent or broker, his authority is not to convey the land or any interest therein, and need not, there- fore, be under seal, nor, independently of statute, even in writing. He performs his duty and is entitled to his commissions when he procures a purchaser who is ready, willing and able to buy upon the terms laid down by the vendor.^" But if the agent's authority extends to the execution of a con- veyance in the name of his principal, it is a general rule that one acting under a power of attorney cannot execute for his principal a sealed instrument, unless the power of attorney be sealed. The authority must be equal in dignity and solemnity with the thing to be done.^^ This is true, even though the agent's authority ex- tends only to the filling in of a blank space in a deed.^^ 19 2 Min. Insts. 901; 2 Th. Co. Lit. 130, 131; Ross v. Milne, 12 Leigh (Va.> 218, 37 Am. Dec. 646. 2 Gelatt V. Ridge, 117 Mo. 553, 23 S. W. 882, 38 Am. St. Rep. 683, note ; Barthell v. Peter, 88 Wis. 316, 60 N. W. 429, 43 Am. St. Rep. 906. Nor can he be deprived of his commissions by a failure of title. Note to Kalley v. Baker, 28 Am. St. Rep. 547 ; Barthell v. Peter, supra. And -where the agent agrees to receive his commissions ratably out of each payment as made, and there is a clause in the contract of sale providing for a forfeiture of all past payments and the rescission of the contract upon failure of the vendee to meet any payment at maturity, to which the agent assented, upon a default, this stipulation wsls enforced, and it was held that the agent was not en- titled to his commissions upon the future payments. Murray v. Rickard, 103 Va. 132, 48 S. E. 871. 212 Min. Insts. 730; Sheppard's Touchst. 57; 2 Rob. Pr. (2d Ed.) 14 et seq. ; Com. Dig. Attor. (C, 1), (C, 5) ; Harrison v. Jackson, 7 T. R. 209 ; El- liott V. Davis, 2 Bos. & P. 338 ; Berkeley v. Hardy, 5 B. & Cr. 355 ; Hotch- kiss V. Middlekauf, 96 Va. 649, 32 S. E. 36, 43 L. R. A. 806; United States V. Nelson, 2 Brock, 64, Fed. Cas. No. 15,863. But see Butler v. United States, 21 Wall. 273, 22 L. Ed. 614. 32 2 Min. Insts. 739 ; post, § 959. (C83) § 888 • DEED POWER OP ATTORNEY. [Ch. 38 And although it is an established rule that one partner cannot bind the other partners by deed, without a sealed authority,^' yet if the deed be made in the partners' presence and by their authority, though oral only, it is good and binding upon them.^* And if it be an act not requiring a sealed instrument (such as the assignment of the personal chattels of the partnership), it seems to be valid where it is done with the partner's consent, although not in his presence, not as the party's deed, but as an instrument of assent. ^^ It is to be observed that powers of attorney are construed strict- ly, and, though the intention of the parties is to be considered in construing the language used, the authority of the attorney can never be considered to be greater than that warranted by the lan- guage of the instrument or indispensable to the effective opera- tion of such authority. Hence a power of attorney which merely authorizes the agent to demand and receive all real and personal property of the principal does not confer authority to sell arid con- vey his real estate.^" A conveyance made by an attorney in fact ought, according to every consideration of good sense, to be made in the name, not of the attorney, but of the principal ; and accordingly the common law reasonably holds conveyances made in the name of the attorney, notwithstanding they purport to be made by him as attorney in fact, to be inoperative to transfer title.-' It has been held, however, that although the words of convey- ance were those of the attorney, yet if purporting to be in his capacity as attorney, and the instrument be signed with the name of the principal, by the attorney, it operates to convey the estate; and if the words of conveyance be the words of the principal, the manner of signing it is of no importance. It may be either "P. by A.," or "A. for P." " In conclusion, it may be remarked that a power of attorney to execute a deed, like any other agency, is revocable at the pleasure of the principal, even though it be expressly stipulated to be ir- 2 3 Harrison v. Jackson, 7 T. R. 207; 2 Min. Insts. 730. 2*2 Min. Insts. 730; Ball v. Dunsterville, 4 T. R. 313; Burn v. Burn, 3 Ves. Jr. 578. The same principle applies to other cases of agency. 25 2 Min. Insts. 730; Hunter v. Parker, 7 M. & W. 344; Burton v. Burton, 1 Chit. 707 ; Anderson y, Tompkins, 1 Brock, 462, Fed. Cas. Xo. 365. 2 6 Hotchldss V. Middlekauf. 90 Va. 649, 32 S. E. 36, 43 L. R. A. 806. " 2 Min. Insts. 901 ; Bae. Abr. Lease (I), 10 ; C!oinbe's Case, 9 Co. 7oa, 76b ; Frontin v. Small, 2 Ld. Raym. 1418; Wiite v. Cuyler, 6 T. R. 176; Clarke v. Courtney, 5 Pet. 349, 8 L. Ed. 140 ; Stinchcomb v. Marsh, 15 Grat. (Va.) 202, 210. See Shanks v. Lancaster, 5 Grat. (Va.) 119, 50 Am. Dec. 108. 28 2 Min. Insts. 730; Bryan v. Stump, 8 Grat. (Va.) 241, 56 Am. Dec. 139; Wilks V. Back, 2 East, 142. (684) Oh. 38] DEED — FORMALITIES. § 890 revocable,'" unless it be coupled with an interest in the land, in which case it is revocable, so long as the interest continues, even without express contract to that effect.'" Like other agencies, al- so, unless coupled with an interest, it is revoked by the death of the principal. °^ § 889. Competency of Parties to Deed. The grantor in the deed must, of course, be legally competent to execute the convey- ance, and the grantee to receive the land under the deed. This topic of the capacity to aliene and to be an alienee has already been considered, and the student is referred to that discussion. ''^ § 890. The Form and Formalities of a Deed — Discussion Out- lined. Below ^^ is appended a form of an ancient charter or deed 29 Angle V. Marshall, 55 W. Va. 671, GT9, 47 S. E. 882; Rowan v. Hull, 55 W. Va. 335, 47 S. E. 92, 104 Am. St. Rep. 998. If revoked, there may, of course, be an action upon the breach of the contract. 3 Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232; Angle v. Mar- shall, 55 W. Va. 671, 679, 47 g. E. 882. 31 Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232; Angle v. Mar- shall, 55 W. Va. 671, 679, 47 S. B. SS2 ; Harper v. Little, 2 Me. 14, 11 Am. Dec. 25 ; Ferris v. Irving, 28 Cal. 648. 3 2 Ante, § 858 et seq., § 870 et seq. 3 3 Ancient Charter or Deed of Feoffment (Deed Poll). Know all men that I, William, son of William de Segenho. have given, granted, and by this my present deed have con- firmed unto John, son of the late John de Saleford, in con- sideration of a certain sum of money to me in hand paid be- forehand, one acre of my arable land, lying in Saleford plain, adjacent to the land of the late Richard de la Mere; to Have and to Hold the whole of the aforesaid acre of land, with all its appurtenances, unto the said John and his heirs and assigns, of the chief lords of the fee ; Rendering and doing annually, to the said chief lords therefor, due and ac- customed service. And I, the aforesaid William, and my heirs and assigns, the whole of the aforesaid acre of land, with all its appurtenances, to the aforesaid John de Sale- ford, and his heirs and assigns, against all persons will war- rant forever. In testimony whereof, to this present deed I have affixed my seal; In the presence of the following wit- nesses, Nigel de Saleford, John the miller of the same town, and others. Dated at Saleford, on Friday next before the feast of Saint Jlary the Virgin, in the sixth year of the Reign of King Edward, son of King Edward. L. S. Memorandum, that on the day and year within written, full and quiet seisin of the within specified acre, with the appurtenances, was given, and delivered by the within-nam- ed William de Segenho, to the within-named John de Sale- ford, in their proper persons, according to the tenor and ef- fect of the within-written deed, in the presence of Nigel de Saleford, John de Seybrooke, and others. (685) Premises. Habendum and Tenendum. Reddendum Warranty. Conclusion. Livery of Sel- siji endorsed. § 890 DEED FORMALITIES. [Ch. 38 of feoffment, which the student is advised to study carefully, as presenting a simple illustration of the formal and orderly parts of a deed of conveyance. For purposes of comparison and study, a form of a modern deed of bargain and sale (in the form of an in- denture) is also appended.^* ^i Conveyance of Lands by Bargain and Sale (Indenture.) (4 Min. Insts. 1.j96.) This indenture, made this day of , in the year of our Lord 18 — , between C. C, of , and E., his wife, of the one part, and D. D., of , of the other part — Witnesseth, that the said C. C, and E., his wife, for and in consideration of the sum of dollars to them in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, release and confirm to the saifl D. D., and his heirs and assigns for ever, with general warranty, all of that certain tract or parcel of land lying in , and con- taining by estimation [or by recent survey] acres, be the same, how- ever, ever so much more or less, and bounded as follows, to wit: Beginning at [describe the boundaries of the land]. Together with all the appurtenan- ces to the said land belonging or in any wise appertaining. To have and to hold the said tract or parcel of laud, with its appurtenances aforesaid, unto the said D. D., his heirs and assigns for ever. And the said C. C, for himself and his heirs, doth covenant and agree with the said D. D., his heirs and assigns, in manner and form following to wit: That the said C. C. [or "the said C. C, and E., his said wife"] is [or "are"] seised in fee-simple of the said tract or parcel of land, with its appurtenan- ces aforesaid. That the said G. C, and E., his \yife, have good right and lawful power to convey the said tract or parcel of land, with its said appurtenances, to the said D. D. in fee-simple. That the said D. D., and his heirs and assigns, shall have quiet and peace- able possession of the said land, and its appurtenances aforesaid, for ever. That the said tract or parcel of land, with its appurtenances aforesaid, is free from all Incumbrances and charges whatsoever ; and That the said C. C, and E., his wife, will execute such further assurances of and for the said land, and its appurtenances, as may be requisite to make the title thereto of the said D. D., his heirs and assigns, sure and complete for ever. Witness the hands and seals of the parties, the day and year first above written. C. C. [Seal.] E. C. [Seal.] D. D. [Seal.] If there are no stipulations to be made by the grantee, the form of the deed may be altered to that of a deed poll, thus: (Deed Poll.) Know all men that 0. C, and E., his wife, for and in consideration of — ^ dollars to them in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, do grant, bargain, sell, release, and confirm unto D. D., of , his heirs and assigns, forever, with general warranty, all that tract or parcel of land, etc. [as in the form above, and as no date is mentioned in the beginning, the conclusion would be:] Witness the hands and seals of the said C. C, and E., his wife, this day of , in the year of our Lord 18 — . (686) Ch. 38] DEED — PREMISES. § 892 The various formal parts and formalities of a deed ^' are com- monly enumerated as follows : (1) Deed must be written on paper or parchment; (2) the premises; (3) the habendum; (4) the tenen- dum; (5) the reddendum; (6) the conditions; (7) the warranty; (8) the covenants; (9) the conclusion of the deed; (10) the reading of the deed; (11) sealing and signing the deed; (12) delivery of the deed; (13) attestation or acknowledgment of the deed; (14) recor- dation of the deed.^° § 891. I. Deed Written on Paper or Parchment. A deed may be written or printed in any character or language, and, it is be- lieved, in ink, or with pencil, but it must be upon paper or parch- ment ; for if written on stone, board, linen, leather, steel, or brass, or the like, it is no deed, although it is doubtless a good agreement in writing. Wood, stone, or steel may be more durable, and linen less liable to rasures; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities, for there is nothing else so durable, and at the same time so little liable to alteration — nothing so secure from alteration, that is at the same time so durable. It must have also the regular stamps required by the stamp law (if any such enactments are in existence), or else it cannot, perhaps, be given in evidence, and under circumstances may be void.^^ § 892. II. The Premises. The premises contain the names of the parties, the recital of whatever circumstances may be needful to explain the reasons of the transaction, the consideration which induced the deed, the recital of payment of purchase money or part SB It is not absolutely necessary in law to have all the formal parts that are usually drawn out in deeds, so as there be sufficient words to declare, clearly and legally, the party's meaning. But as those formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wis- dom of successive ages, it is prudent not to depart from them without good reason, or urgent necessity. Frequently the reason for using particular ex- pressions will appear after many years' study, when before, upon a cursory consideration, the words seemed unnecessary, if not improper. 2 Min. lusts. 705 ; 2 Bl. Com. 298, notes (7), (8) ; 4 Kent, Com. 460, 461. 36 See 2 Min. Insts. 705 ; 2 Bl. Com. 298 et seq. 37 2 Min. Insts. 704; 2 Bl. Com. 297; Chitty, Cont. 72; Schneider v. Mor- ris, 2 M. & S. 285 et seq.; Geary v. Physic, 5 B. & Cr. 234; Jeffrey v. Wal- ton, 1 Stark. 267; Byrnes v. Clarkson, 1 Phil. 22; Dickinson v. Dickinson, 2 Phil. 173 ; Green v. Skipwith, 1 Phil. 53 ; Hale v. Wilkinson, 21 Grat. (Va.) 78; Talley v. Robinson, 22 Grat. (Va.) 896; Campbell v. Wilcox, 10 Wall. 421, 19 L. Ed. 973 ; Carpenter v. Snellings, 97 Mass. 452. But that Congress cannot by a stamp act make void a deed purporting to convey land within one of the states (although it might be excluded as evi- dence of title In the United States courts), see 3 Washburn, Real Prop. (6th Ed.) S 2085. (687) § 892 DEED PREMISES. [Ch. 38 thereof, and whatever is necessary to make it clearly intelligible what is the subject of the grant and who is the grantor and the grantee. '' While the premises should designate the name of the grantor with reasonable certainty, it is sufficient if the description is ac- curate enough to identify him, even though the name given in the instrument be not his actual name.^" Thus, a conveyance by "the heirs" of a decedent is good, provided such heirs can be identi- fied ; *" and a conveyance in the first person, if signed by the gran- tor in such manner as to identify him, would also be good, at least, if there be only one grantor.*^ But if there are several grantors, as where a husband and wife, or two co-owners, unite in a deed, each grantor should be named in the premises as a grantor in the deed, and the mere signing of the deed by one not so named will not pass his or her interest in 'the property conveyed.*" Upon the same principle the grantee must be named in the conveyance or so described as to be capable of identification.*' A conveyance to a grantee already dead is, as we have seen, void ; ** but, if the deed is to the heirs of a dead man, they are susceptible of identification, and the deed is valid. *'^ § 893. III. The Habendum. The function of the habendum is to determine what estate or interest is granted by the deed, al- though this may be, and generally is, stated in the premises, in 38 2 Min. Insts. 705; 2 Bl. Com. 298; 2 Th. Co. Lit. 240; Sheppard's Touchst. 52. 74. 39 Jenkins v. Jenkins, 14S Pa. 216, 23 Atl. 985; Houx v. Batteen, 68 Mo. 84 ; Nicodemus v. Young, 90 Iowa, 423, 57 N. W. 906. 4 Blaisdell v. Morse, 75 Me. ,''i42. 41 2 Tiffany, Real Prop. § 380; Elliot v. Sleeper, 2 N. H. ,525; Jackson v. Root. 18 Johns. (N. X.) 60 ; Hutchins y. Carleton, 19 N. H. 487. But see Pea- body V. Hewett, 52 Me. 33, 83 Am. Dec. 486. 4 2 Ante, § 866; 2 Min. Insts. 654; 2 Tiffany, Real Prop. § 380; Taylor v. Cussen, 90 Va. 40, 17 S. E. 721 ; Leavitt v. Lamprey, 13 Pick. (Mass.) 382, 23 Am. Dec. 085 ; Oreenough v. Turner, 11 Gray (Mass.) 334 ; Batchelor v. Brereton. 112 U. S. 396, 5 Sup. Ct. 150, 28 L. Ed. 748; Laughlin v. Fream, 14 W. Va. 322 ; Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Prather v. McDowell, 8 Bush (Ky.) 46; Harrison v. Simons, 55 Ala. 510. But see Elliot v. Sleeper, 2 X. H. 525; Woodward v-. Seaver. 38 N. H. 29; Armstrong v. Stovall, 26 Miss. 275 ; Hrouska v. Janke, 66 Wis. 252, 28 N. W. 166. 43 Ante, § 871; 2 Min. Insts. 657; 2 Tiffany, Real Prop. § 380; Wood v. Boyd, 28 Ark. 75; Simmons v. Spratt, 20 Fla. 495; Hardin v. Hardin, 32 S. C. 599, 11 S. E. 102; Wright v. Lancaster, 48 Tex. 250; Thomas v. Wyatt, 31 Mo. 1S8, 77 Am. Dec. 640. 4 4 Ante. § S72. 45 2 Tiffany, Real Prop. § 380; Shaw v. Loud, 12 Mass. 447; Gearheart v. Thorp. 9 B. Mon. (Ky.) 31 ; Boone v. Moore, 14 Mo. 421. (688) Ch. 38] DEED REDDENDUM. § 895 which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to the estate granted in the premises. In case of such irreconcilable repugnancy, the premises generally prevail, for the habendum cannot divest an es- tate already vested by the premises.*^ Thus, at common law, upon a grant (in the premises) "to A. and the heirs of his body," habendum, "to him and his heirs for- ever," A. would take a fee tail, with a remainder in fee simple ex- pectant thereon ; but had the premises been "to A. and his heirs," habendum, "to him for life," the habendum would be utterly void, for an estate of inheritance is vested in A. before the habendum comes, and is not to be subsequentl)'- divested or taken away by it — unless, at least, a contrary intent can be clearly gathered from the whole deed.*^ § 894. IV. The Tenendum. In modern times, even in England, the tenendum is of little practical use, and in deeds conveying a fee simple is retained only by custom. It was formerly employed to set forth the feudal service to be rendered for the land by the gran- tee, and also to show of whom the land was to be holden ; but as the statute of quia emptores (18 Edw. I, c. 1) has caused all fee- simple lands to be held of the chief lords of the fee, and as all ten- ures, with a few unimportant exceptions, were by 12 Car. II, c. 24, reduced to free and common socage, the occasion for the clause of tenendum, in conveyances in fee simple, has in a great degree passed away, and it is usually pretermitted.*"* And in this country, where all feudal tenures are abolished, the tenendum is improper, or at least superfluous, in conveyances of the fee simple. § 895. V. The Reddendum. The function of the reddendum is to set forth the return (reditus), which in feudal times, for the most part, accompanied all conveyances, even those in fee simple, being generally military services. The reddendum may still be properly used in conveyances in fee, when (as sometimes happens) an an- nual or periodical rent is reserved as a compensation or return for the property; and in conveyances for life, for years, or at will, a clause of reddendum is by no means infrequent. A reddendum, it will be observed, must be to the grantors, or some or one of them, and not to any stranger to the deed.*^ 46 2 Mln. Insts. 705 ; 2 Bl. Com. 298 ; 2 Th. Co. Lit. 241. *T 2 Bl. Com. 298. 48 2 Min. Insts. 706 ; 2 Bl. Com. 298, 299 ; 2 Th. Co. Lit. 241, 242, note (R) ; Sheppard's Touchst. 52, 79. i!>2 Min. Insts. 706; 2 Bl. Com. 299; 2 Th. Co. Lit. 142, note (S) ; Shep- pard's Touchst. 52, 80. Minor & W.Real Prop.— 44 (C89) § 895 DEED — REDDENDUM. [Ch. 38 Furthermore, the reddendum or reservation clause is, in this country at least, frequently used for the purpose of retaining in the grantor certain incorporeal rights or easements in the land con- veyed/" § 896. VI. The Condition Clause. It is unnecessary to repeat here the principles controlling conditions, which have already been quite fully examined.^^ In practice, most conveyances in fee simple are unconditional ; and, of course, if no conditions are to be stipulated, there will be no condition clause in the deed."^ § 897. VII. The Ancient Warranty or Covenant Real. "A warranty," says Lord Coke, "is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same; and either upon voucher or by judgment in a writ of war- rantia chartse, to yield other lands and tenements to the value of those that shall be evicted by a former title; or else may be used by way of rebutter;" that is, to repel or rebut the claims of the< grantor himself, or of his heirs, to the lands. It extends to no lease for years or to any other chattel, and if proper words of war- ranty are applied to such interests they are to be construed as creat- ing only a personal covenant.^' Warranty may be either (1) implied, or (2) express. It is implied wherever, upon the conveyance of a freehold, there is a reversion in the grantor and the land is held of him. At com- mon law, this is the case even in conveyances in fee simple, and, therefore, a warranty at common law is implied in all cases of free- hold conveyances, at least where the word "dedi" is used. But 00 Ante, § 94 ; Claflin v. Boston & A. R. Co., 157 Mass. 489, 32 N. E. 659, 20 L. R. A. 638 ; Grafton v. Moir, 130 N. Y. 465, 29 N. E. 974, 27 Am. St. Rep. 533; Kister v. Reeser, 98 Pa. 1, 42 Am. Rep. 608; Haggerty v. Lee, 50 N. J. Eq. 464, 26 Atl. 537 ; Chappell v. New York, N. H. & H. R. Co., 62 Conn. 195, 24 Atl. 997, 17 L. R. A. 420. This is contrary to tlie common-law idea of a reservation, which was that the grantor thereby reserved to himself some new thing issuing out of the thing granted, not before in esse; e. g., rent. Ante, § 94 ; Doe v. Lock, 2 Ad. & E. 743 ; Durham, etc., R. Co. v. Walker, 2 Q. B. 940. Accordingly, it has been held In England that an easement cannot thus be created by a mere reservation ; and where it appears to be so, It is in reality a regrant by the grantee, such an efCect not being given to it un- less the grantee also has signed the deed. Ante, § 94 ; Tiffany, Real Prop. §§ 316, 383; Durham, etc., R. Co. v. Walker, supra; Wlckham v. Hawker, 7 M. & W. 63 ; Corporation of London v. Riggs, 13 Ch. Dlv. 798. Bi Ante, § 466 et seq. B2 2 Min. Insts. 706, 707. 03 2 Th. Co. Lit. 245, 249, note (D), 250, note (F) ; 2 Min. Insts. 707; 2 Bl. Com. 300; Williamson v. Codriugton, 1 Ves. Sr. 516. (690) Ch. 38] DEED ANCIENT WARRANTY. § 89'^ when the statute quia emptores (18 Edw. I, c. 1) had declared that, upon conveyances in fee simple, the tenure should be, not of the grantor, but of the chief lord of the fee, implied warranty became limited to tenants in tail, for life and for years, although in estates for years it is only a personal covenant; but in the case of free- holds (i. e., of estates tail and for life) a warranty is implied only where the word "dedi" is used; and with us, as well as in Eng- land, upon a conveyance in fee simple, the grantor is no further liable for the title than he expressly covenants to be, except in case ■of fraud or material mistake, and except, also, in case of partition or exchange of lands, where either party is evicted of his share, in which case the other and his heirs are bound to warranty, for which no better reason is given than that they enjoy the equivalent in land.^* Express technical warranty can be created by no word whatso- ever, except "warrantizo," or in English "warrant." If any other word or phrase be substituted, or be joined with the word "war- rant" (save only the auxiliary "will" or "shall"), it is not the ancient "covenant real," but becomes a modern personal covenant of ti- tle. And so, also, an ancient warranty can be annexed to no es- tate less than freehold ; and hence, if the proper words of warranty be applied to a lease for years, or to any chattel, it is a personal covenant, so that, if a conveyance of land in fee simple comprised chattels also, the same words ("I will warrant") are construed as creating an ancient warranty as to the land, and a personal cove- nant as to the chattels. Hence, if the grantor says "I will war- rant" the land, etc., it is the ancient warranty; but "I will warrant and defend," or "I covenant or agree to warrant," or "I will war- rant a term for years," etc., are modern and personal covenants of title. And it should be observed that an express warranty always supersedes one implied. '''^ Ancient warranty, as it affects the heirs of the warrantor, is of 'three sorts: (1) Lineal; (2) collateral; and (3) commencing by disseisin. (1) The lineal warranty is' that which descends in the same line with the land warranted; that is, in the same line that the land would have descended in, had it not been sold, and that, whether the descent be lineal or collateral. Thus, if the owner of land sells it 64 Ante, §§ , 83 ; 2 Min. Insts. 707, 708 ; 2 Bl. Com. 300 ; 2 Th. Co. Lit. 252, 253, note (K) ; Rawle, Cov. Tit. 853 et seq. ; Williams v. Burrell, 1 Co. B. 429 et seq. ; Black v. Gilmore, 9 Leigh (Va.) 448, 449, 33 Am. Dec. 253. •0 2 Min. Insts. 708 ; 2 Bl. Com. 301 ; 2 Tli. Co. Lit. 250 et seq. notes (D), (F), 256; Nokes' Case, 4 Co. 80b; Williamson v. Codrington, 1 Ves. Sr. 511; ■Tabb V. Binford, 4 Leigli (Va.) 132, 26 Am. Dec. 317. (691) § 897 DEED ANCIENT WARRANTY. [Ch. 38 with warranty, and then dies leaving his nephew as his heir, the warranty is lineal, while the descent of it from the uncle to the nephew is collateral. ^^ (2) The collateral warranty means a warranty that descends, not in the same line with the land warranted, but from a different ancestor. Thus, if a tenant by the curtesy or in dower aliene his or her life estate in fee simple with warranty, and then die leaving a son, the common heir of both parents, the warranty is collateral, because it descends from one parent while the land descends from the other." (3) Warranty commencing by disseisin arises where the very conveyance in which the warranty is found immediately follows an act of disseisin by the warranting ancestor perpetrated against the heir or against the ancestor on the other side, or where the convey- ance itself operates as such (as where a father, tenant for years, with remainder to his son in fee, alienes to a stranger in fee simple, with warranty. Such warranty, being founded on tort or wrong of the warrantor himself, is too palpably injurious to be supported, and is not binding, even at common law, upon the warrantor's heirs ; for it cannot be presumed that an ancestor- unjust enough to commit such a wrong against his heir will be so just as to leave him a recompense. Warranty by disseisin, it will be observed, is in all cases collateral. '^^ § 898. Same — Effect of Ancient Warranty as to Compensation Made for Loss of Land by Title Paramount. The warrantor him- self is, of course, always bound to make compensation when the land is lost by title paramount; but when he is dead, the liability of his heir to do so depends, at common law : First, on the fact that he is named in the warranty. "Hseredes mei," says Lord Coke, "are words of necessity, for otherwise the heirs are not bound." ^^ And, secondly, on his having assets descended to him from the- warranting ancestor. This doctrine applies without discrimination to both lineal and collateral warranty."" The obligation arising out of the warranty on the part of the war- rantor and his heirs (supposing the latter to have assets by descent, and to the extent of such assets) is at common law to render for any 56 2 Min. Insts. 708; 2 Bl. Com. 301; 2 Th. Co. Lit. 274, 278, et seq., note (M, 1). 67 2 Min. Insts. 708; 2 Bl. Com. 301, 302 ; 2 Th. Co. Lit. 274 et seq. 08 2 Jlin. Insts. 709; 2 Bl. Com. 302 ; 2 Th. Co. Lit 297, note (2), 302. 08 2 Th. Co. Lit. 250, note (G) ; 2 Min. Insts. 709. 80 2 Min. Insts. 709; 2 Bl. Com. 242 et seq., notes; 2 Th. Co. Lit. 186, note (A). (692) Ch. 38] DEED — PERSONAL COVENANTS. § 900 part of the land warranted, lost by title paramount, its equivalent in value in other lands, having reference to the value at the time of the making of the warranty.^^ § 899. Same — Effect of Ancient Warranty in Rebutting or Es- topping the Claims of Warrantor or His Heirs. The claims of the warrantor cannot in general be asserted at common law in oppo- sition to his own warranty, and the claim of his heir is at common law likewise repelled or rebutted by the warranty of the ancestor, whether the heir actually derived any heritage from the warranting ancestor or not, and whether the warranty be lineal or collateral."^ It is to be observed that a covenant real of warranty, when annexed to an assurance by feoffment, fine, or common recovery, had not only the ordinary and personal effect of rebutting or re- pelling the grantor or his heirs from claiming the land, as by force of the estoppel of the deed, but also the much higher operation actually to transfer and pass to the grantee any estate in the land which the grantor may afterwards have acquired."' But an after-acquired title, where the assurance is by grant, or by release, or under the statute of uses, is not actually passed by direct operation of law, however the grantor and his heirs under such assurances may be estopped to claim it."* Where, however, the land is conveyed without any warranty at all, the grantor is in general not estopped to set up an after- acquired title, unless there be some claim or representation in the conveyance that the grantor is seised of, or has full power to con- vey, the estate which the deed purports to convey."^ § 900. VIII. Personal Covenants in the Deed. Covenants, as here used, are stipulations by either party, contained in a deed of conveyance, for the truth of certain facts, or to perform or give something to another. Thus the grantor may covenant that he hath a right to convey, or for the grantee's quiet enjoyment, or the like ; the grantee may covenant to pay the purchase money, or to pay rent, or to keep the premises in repair. Covenants in mod- ern times supply the place of ancient warranty, and something more. Thus they may oblige the grantor to be answerable for the «i 2 Min. Insts. 713 ; 2 Th. Co. Lit 304, 308 ; 2 BI. Com. 302. 82 2 Min. Insts. 709, 710, 711. 83 Post, § 1064; 2 Min. Insts. 710; Rawle, Cov. Tit. 319 et seq. ; 2 Th. Co. Lit. 353, note (B, 1), 456, 457; Sheppard's Touclist. 204, 210; Burtners v. Keran, 24 Grat. (Va.) 66. 64 2 Min. Insts. 710; Rawle, Cor. Tit. 320, 321; Bigelow, Estoppel. 337, 360, et seq. ; Doe v. Oliver, 5 M. & R. 202, 2 Smitli, Lead. Cas. 511, 514, et eeq. ; Nye v. Lovitt, 92 Va. 710, 24 S. E. 345. See post, §§ 1064, 1066. SB 2 Min. Insts. 710; post, § 1066 et seq. (693) § 901 DEED — COVENANTS NOT RUNNING WITH LAND. [Ch. 38 goodness of the title he sells, but they may also relate to any other matter; and when they concern the title to the land sold, they have this great advantage over the ancient warranty, that they enable the grantee to charge with damages in money both the personal and real estate of the grantor, if there is a breach of the agreement, whereas the warranty can be redressed by the recovery of lands only.^° § 901. Same — Personal Covenants Not Running with the Land. Covenants which do not run with the land are such covenants as do not affect the nature, quality or value of the thing conveyed, independently of collateral circumstances, however they may af- fect the parties collaterally, in respect of other lands owned by them. The designation by which they are described, namely, that they do not run with the land, marks their most distinctive char- acteristic ; that is, that they do not pass with the land to the as- signee thereof, either to benefit or to charge him, notwithstanding assigns be specially mentioned.*'' Thus, where in a lease of land, with liberty to conduct a water course through it, and to erect a silk mill, the lessee covenanted for himself, his executors, etc., and assigns, not to hire persons to work in the mill who were settled in other parishes, without a par- ish certificate, and afterwards assigned the lease, it was held that the covenant was not one that ran with the land, affecting neither its nature, quality, nor value, and that the assignee was not bound thereby.*^ So a covenant to pay so much annually for the use of the poor does not run with the land; '" nor a covenant to build a house on land other than that conveyed ; nor to pay a collateral sum of money (other than rent) to the grantor, or any money to a stranger; nor a covenant to return cattle or cattle of like value, leased with the premises." It is not enough, however, that the covenant concerns or affects the land conveyed; but, in order to make it run with the land, there must be a privity of estate between the contracting parties. Hence, if mortgagor and mortgagee unite in a lease for years, and the lessee covenant with the mortgagor and his assigns to pay rent and do repairs, and the mortgagee afterwards assign his interest, the assignee can maintain no action against the lessee, because, al- oe 2 Mln. Insts. 714 ; 2 Bl. Com. 304. 8 7 Ante, § 367 et seq., 375 et seq. ; 2 Min. Insts. 715. 68 2 Min. Insts. 715; Mayor of Congleton v. Pattison, 10 Bast, 130. 69 Mayho v. Buckhurst, Cro. Jac. 438; 2 Min. Insts. 715. 70 2 Min. Insts. 715; Spencer's Case, 5 Co. 16b, 1 Smith, Lead. Cas. 92, 96, et seq. ; Bac. Abr. Covenant (E), 3; Rawle, Gov. Tit. 281 et seq. (094) Ch. 38] DEED COVENANTS LAND NOT CONVEYED. § 902 though the covenants relate to the land, yet there is no privity of estate between the mortgagee's assignee and the mortgagor with whom the lessee covenanted. ^^ For the most part, a covenant which relates to the land runs with it, and an assignee is liable to observe it, although assigns be not named; but as to this doctrine there seems at common law to be this exception : That if the covenant, although it concern the land, yet relates directly to a thing not then in esse, the covenant is not binding on an assignee unless expressly named. Thus, if in a lease the lessee covenants to build a wall on the land, and afterwards assigns, the assignee is under no obligation to erect the wall, unless the covenant were for the lessee and his assigns.'^ § 902. Same — Personal Covenants Affecting Land Not Con- veyed. Occasionally cases arise wherein the owner of one tract of land agrees or covenants with the owner of an adjacent tract for the doing or not doing of certain acts upon his land, whereby the adjacent landowner will be benefited, without the transfer or con- veyance of any land between them. In such cases the question may present itself how far such covenants or agreements are en- forceable by or against not only the original parties to the agree- ment, but by or against persons subsequently acquiring either tract of land. Of course, the original parties to such a contract will have all the remedies for its breach, both at law and in equity, that would accrue upon the breach of any other contract. But, if we suppose either tract to be assigned to a third per- son, the question whether the covenant may be enforced by or against such assignee presents more difficulty. Since the covenant does not run with the land (no land hav- ing been conveyed at the time the covenant was made), and since the assignee was not a party to the original covenant, it would seem that upon common-law principles he could neither sue nor be sued in a court of law, at least where the contract is under seal, for it is a principle of the common law that no person can sue upon a contract under seal, even though it be made for his benefit, unless he be a party thereto.''* TiAnte, § 380; 2 Min. Insts. 715; Webb v. Russell, 3 T. R. 402, 403; Stokes V. Russell, 3 T. R. 678, 1 H. Bl. 563 ; Roach v. Wadham, 6 Bast, 269. 7 2 Ante, § 375; 2 Min. Insts. 716; Bac. Abr. Covenant (E), 3; Spencer's Case, 5 Co. 156, 1 Smith Lead. Cas. 92, 96, et seq. 78 2 Min. Insts. 451 ; Ross v. Milne, 12 Leigh (Va.) 204, 218,. et seq., 37 Am. Dec. 646 ; Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676. See Sims, Cov. 196 ; Sugden, Vend. (14th Ed.) 581 et seq. ; Mygatt v. Coe, 124 N. Y. 212, 26 N. E. (C95) § 902 DEED — COVENANTS LAND NOT CONVEYED. [Ch. 38 But a court of equity, either upon the theory that the cove- nant creates a trust for the benefit of subsequent purchasers or assignees, or upon the theory that it creates an easement, vt^ill often enforce by injunction restrictions upon the use of the land agreed upon by the original parties, even though the land shall have come into the hands of subsequent purchasers.'* The most usual instance of the application of these principles is the case of a division of a tract of land into lots and the sale thereof to independent purchasers, who all take subject to the same covenants touching the use of the property ; the covenants being for the benefit of all the purchasers. The court of equity, at the instance of one or more of such purchasers will enjoin the violation of the covenant by another of the purchasers.' ° And it seems to be immaterial whether the complainant has purchased his lot before or after the party who is guilty of violating the cove- nant." § 903. Same — Personal Covenants Running with the Land. Covenants which run with the land are those which affect the nature, quality, or value of the thing conveyed, where there is privity of estate between the contracting parties, as a covenant to pay rent, to repair, to be answerable for the title, etc. Cove- nants of this description pass with the land, and are binding on, 611, 11 L. R. A. 646 ; Id., 147 N. Y. 456, 42 N. B. 17 ; Hurd v. Curtis, 19 Pick. (Mass.) 4.59 ; Lyon v. Parker, 45 Me. 474. 7 4 Ante, § 475; 2 Min. Insts. 274; 2 Tiffany, Real Prop. § 348 et seq. ; Spicer v. Martin, 14 App. Cas. 12 ; Mander v. Faicke, [1891] 2 Cli. 554 ; Lon- don, etc., R. Co. V. Gomm, 20 Ch. Div. 562; Haywood v. Brunswick, etc.. Building Soc, 8 Q. B. Div. 403; Vanmeter v. Vanmeter, 3 Grat. (Va.) 148; Crawford v. Patterson, 11 Grat. (Va.) 364 ; Pownal v. Taylor, 10 Leigh (Va.) 172, 34 Am. Dec. 725 ; Supervisors of Bedford County v. Bedford High School, 92 Va. 295, 23 S. E. 299 ; Ladd v. City of Boston, 151 Mass. 585, 24 N. E. 858, 21 Am. St. Rep. 481 ; Hogau v. Barry, 143 Mass. 538, 10 N. E. 253 ; Chase v. Walker, 167 Mass. 293, 45 N. E. 916; Columbia College v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615 ; Muzzarelli v. Hulshizer, 163 Pa. 643, 30 Atl. 291 ; Mc- Mahon v. Williams, 79 Ala. 288 ; Clark v. MeGee, 159 111. 518, 42 N. E. 965 ; Phcenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400; Post v. Well, 115 N. Y. 361, 22 N. E. 145, 5 L. R. A. 422, 12 Am. St. Rep. 809. 76 2 Tiffany, Real Prop. §§ 351, 352, et seq.; Spicer v. Martin, 14 App. Cas. 12 ; Collins v. Castle, 36 Ch. Div. 243 ; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632 ; Sharp v. Ropes, 110 Mass. 381 ; Hills v. Metzenroth, 173 Mass. 423, 53 N. E. 890 ; Clark v. Martin, 49 Pa. 289 ; McMahon v. Wil- liams, 79 Ala. 288 ; Hayes v. Waverly & P. R. Co., 51 N. J. Eq. 345, 27 Atl. 648. 76 2 Tiffany, Real Prop. § 352 ; Spicer v. Martin, 14 App. Cas. 12 ; Mack- enzie v. Childers, 43 Ch. Div. 265 ; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632 ; De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 24 Atl. 388 ; Tallmadge v. East River Bank, 26 N. Y. 105. (GOG) Ch. 38] DEED COVENANTS EUNNING WITH LAND. § 903 and in favor of, the assignee, although assigns be not expressly named; but it should be observed that the liability of the assignee is confined to the period of his occupancy, or at least of his interest in the land, whilst that of the lessee or grantee himself may con- tinue indefinitely, being expressly undertaken." Omitting from present consideration covenants contained in leases, and confining our attention to deeds conveying the fee- simple title, it may be well to observe that the courts are not at one with respect to the question whether the burdens, as well as the benefits, of covenants relating to the land, contained in a fee-simple conveyance, are to be regarded as running with the land. So far as the benefits of such covenants are concerned, it seems to be generally conceded that they pass with the land, and that subsequent purchasers of the land may sue if the covenant be vio- lated." But the main question relates to the passing of the burdens of such covenants. In England it appears to be established that they do not run with the land, so as to make subsequent purchasers thereof bound to perform them, upon the very reasonable ground that thus perpetual restrictions upon the use of land might be im- posed at the caprice of individuals, and the land thus come to fu- ture generations hampered and trammelled.'' American authori- ties on this question are not in agreement.*" 7 T Ante, § 375; 2 Min. Insts. 716; Bac. Abr. Covenant (E), 3, 4; 2 Th. Co. Lit. 325, note (G, 8) ; Rawle, Cov. Tit. 281 et seq. ; Spencer's Case, 5 Co. 15b, 1 Smith, Lead. Cas. 92, 96, et seq. ; Congleton v. Pattison, 10 East, 130 ; May- bo V. Bnckhurst, Cro. Jac. 438. 78 2 Tiffany, Real Prop. § 343 ; Sims, Cov. 136 ; Raby v. Reeves, 112 N. C. 688, 16 S. E. 760; Gaines v. Poor, 3 Mete. (Ky.) 503, 79 Am. Dec. 559; National Union Bank of Dover v. Segur, 39 N. J. Law, 173; St. Louis, I. M. & S. R. Co. V. O'Baugb, 49 Ark. 418, 5 S. W. 711; Peden v. Chicago, R. I. & P. R. Co., 73 Iowa, 328, 35 N. W. 424, 5 Am. St. Rep. 680. 79 2 Tiffany, Real Prop. § 344; Clark, Cont. 549; Brewster v. Kidgile, 12 Mod. 166 ; Brewster v. Kitchin, 1 Ld. Raym. 317 ; Auster berry v. Oldham,' 29 Ch. Div. 750. In Keppell v. Bailey, 2 My. & K. 517, Lord Brougham says: "It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of any owner. * * * Great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying real, property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote." 80 Cases taking the English view are West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527; Weld v. Nichols, 17 Pick. (Mass.) 538; Martin v. Drinan, 128 Mass. 515; Parish v. Whitney, 3 Gray (Mass.) 516; Kennedy v. Owen, 136 Mass. 199; Lincoln v. Burrage, 177 Mass. 378, 59 N. E. 67, 52 L. R. A. 110 ; Scott v. McMillan, 76 N. Y. 141 ; National Union Bank of Dover v. Segur, 39 N. J. Law, 184; Costigan v. (697) § 903 DEED COVENANTS RUNNING WITH LAND. [Ch. 3S The most important by far of covenants in fee-simple convey- ances, which run with the land, are those which relate to the title (generally designated "covenants of title"), and the subject will be developed especially with reference to them in the succeeding sections. § 904. Same — Personal Covenants of Title — Implied Covenants of Title. Upon the conveyance of a fee simple or other entire in- terest of the grantor (leaving no reversion in him), covenants of title are never implied, though they are sometimes implied in leas- es." In the former case, if the grantee has taken no express cove- nants of title, he is, in the absence of fraud or mutual mistake, with- out redress, if evicted under title paramount.*^ § 905. Same — Express Covenants of Title — Enumeration. The covenants of title, usual in England in the case of conveyances of the fee simple, and therefore generally designated "English cove- nants of title," and which are gradually gaining ground in the Unit- ed States, cover very thoroughly all the points that the experience of ages has taught are likely to arise to endanger the grantee's ti- tle to the land conveyed. The English covenants are in substance as follows: (1) That the grantor is seised in fee simple of the land ; (2) that the grantor has good right and lawful power to convey the land in fee simple; (3) that the grantee, his heirs and assigns, shall have quiet pos- session, and shall hold and enjoy the premises granted without eviction or disturbance; (4) that the land granted is free from in- cumbrances; and (5) that the grantor and his heirs shall execute all such further assurances of title to the land as shall be reasonably required by the grantee, his heirs or assigns.*' Pennsylvania R. Co., 54 N. J. Law, 233, 23 Atl. 810 ; Blount v. Harvey, 51 N. C. 186; Hartung v. Witte, 59 Wis. 285, 18 N. W. 175. Some of the cases taking the opposite view are Gilmer v. Mobile & M. R. Co., 79 Ala. 569, 58 Am. Rep. 623 ; Georgia Southern R. Co. v. Reeves, 64 Ga. 492 ; Fitch v. John- son, 104 111. Ill ; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198 ; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254 ; Sutton v. Head, 86 Ky. 156, 5 S. W. 410, 9 Am. St. Rep. 274; Hickey v. Lake Shore & M. S. R. Co., 51 Ohio St. 40, 36 N. E. 672, 23 L. R. A. 396, 46 Am. St. Rep. 545 ; Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 236 ; Dexter v. Beard, 130 N. T. 549, 29 N. B. 983 ; St. Andrew's Lutheran Church's Appeal, 67 Pa. 512 ; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. 500, 41 Atl. 458 ; Crawford V. Witherbee, 77 Wis. 419, 46 N. W. 545, 9 L. R. A. 561. 81 Ante, § 368 ; 2 Min. Insts. 717. 82 2 Min. Insts. 717; Rawle, Cov. Tit. 353 et seq. ; Williams v. Bur- rell, 1 C. B. 429 et seq. ; Sutton v. Sutton, 7 Grat. (Va.) 234, 5(J Am. Dec. 109. 83 2 Min. Insts. 717, 718; 2 Th. Co. Lit. 325, note (G, 3); Rawle, Cov. Tit. 3S et seq., 101 et seq., 105 et seq., 145 et seq., 164 et seq. (698) Cll- 38} DEED — COVENANT OF SEISIN. § 906 In addition to, or rather, in perhaps the majority of cases, in the place of, these English covenants of title, there are also in use in this country the covenants of general and special warranty; the covenant of general warranty being practically equivalent to the third English covenant above enumerated, and the special war- ranty being even more restricted.** These various covenants of title we shall now examine in their order. § 906. Same — Covenant of Seisin. The first of the English covenants of title, namely, that the grantor is seised in fee simple of the land he purports to convey, is known as the covenant of seisin. According to the better view, the term "seised," as used in this covenant, means such seisin (including constructive seisin) '= as may now be had under the statutes of uses and wills, and applies only to seisin under a lawful claim of right, and not, as at common law, to the possession of a disseisor, who is at common law none the less seised, though his title be unlawful.*" In accordance with this view, the covenant amounts to an undertaking or repre- sentation that the grantor has the estate, in quantity and quality, which he purports to convey.*^ But the covenant is not broken by the existence of liens and incumbrances on the land, or of rights of user therein, which do not amount to giving the seisin of the land to another, as in the case of inchoate dower, vendor's, mechanics' or judgment liens, etc.** It would be otherwise, however, as to dower consummate (at least, after assignment), or where others own an interest in common with the grantor.** ; 84 Post, § 911 et seq. ssAnte, §§ 131, 840. 88 There are a few cases which take the latter view, and hold that the covenant of seisin is not broken if the grantor be actually in possession of the freehold, though his claim be unlawful, since he is, under the common- law interpretation of the term "seised." Raymond v. Raymond, 10 Cush. (Mass.) 134; Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61; Wilson v. Wi- denham, 51 Me. 566 ; Backus v. McCoy, 3 Ohio, 211, 17 Am. Dec. 585 ; Wet- zell V. Richcreek, 53 Ohio St. 62, 40 N. E. 1004. 87 2 Tiffany, Real Prop. § 395; Greenby v. Wilcocks, 2 Johns. (N. T.) 1,^ 3 Am. Dec. 379; Woods v. North, 6 Humph. (Tenn.) 309, 44 Am. Dec. 312; Pringle v. Witten, 1 Bay (S. C.) 256, 1 Am. Dec. 612; Lockwood y. Sturde- vant, 6 Conn. 385 ; Parker v. Brown, 15 N. H. 186. 8 8 Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 429, 19 Am. Dec. 139 ; Whitbeck v. Cook, 15 Johns. 483, 8 Am. Dec. 272 ; Moore v. Johnston, 87 Ala. 220, 6 South. 50 ; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426. 8 8 Sedgwick v. Hollenback, 7 Johns. (N. Y.) 376; Downer v. Smith, 38 Vt. 464. (699) § 906 . DEED COVENANT OF SEISIN. [Ch. 38 The covenant of seisin is broken, if at all, as soon as it is made, but the damages therefor are not necessarily the consideration paid, but are to be measured by the actual loss sustained ; so that if the covenantor, before any injury results, corrects the defect in the title, the recovery for the breach of the covenant will be limited to nominal damages only."" It may be observed in conclusion that since this covenant is bro- ken, if at all, as soon as made, the grantor is not responsible under it to any assignee of the grantee, but only to the grantee himself; broken covenants no"t running with the land.°^ § 907. Same — Covenant of Right and Power to Convey in Fee Simple. The covenant of right and power to convey is for the most part equivalent to the covenant of seisin ; °^ but cases may arise wherein there may be a right or power to convey in fee simple, without any seisin in the grantor at all, as where the conveyance is made under a power of appointment. In such case, the covenant of seisin would not be appropriate.^^ § 908. Same — Covenant for Quiet Enjoyment. This covenant is practically identical in effect with the covenant of general war- ranty, and its meaning and efifect will be set forth in connection with the discussion of that covenant."* § 909. Same — Covenant against Incumbrances. An incum- brance, as here used, is any right to or interest in the land, or the right to charge, subject, or use the same, subsisting in third per- sons, to the diminution of the value of the land, but consistent with a transfer of the fee simple to the grantee. °° Thus any lien, wheth- er it be a mortgage, a judgment or attachment lien, a lien for taxes, a vendor's or mechanics' lien, etc., is embraced by the covenant."* »o Building, Light & Water Co. v. Fray, 96 Va. 559, 32 S. E. 58. 01 Ante, § 903. 92 Building, Light & Water Co. v. Fray, 96 Va. 559, 32 S. E. 58; Peters v. Bowman, 98 U. S. 56, 25 L. Ed. 91 ; Baldwin v. Timmins, 3 Gray (Mass.) 302. 13 2 Tiffany, Real Prop. § 396. See Devore v. Sunderland, 17 Ohio, 52, 49 Am. Dec. 442 ; Slater v. Rawson, 6 Mete. (Mass.) 439. 91 Post, § 912 et sea. 06 2 Tiffany, Real Prop. § 397; Prescott v. Trueman, 4 Mass. 630, 3 Am. Dec. 246 ; Huyck v. Andrews, 113 N. Y. 81, 20 N. B. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Lafferty v. Milligan, 165 Pa. 534, 30 Atl. 1030; Kelsey v. Remer, 43 Conn. 129, 21 Am. Rep. 638. 06 2 Tiffany, Real Prop. § 397; Wyman v. Ballard, 12 Mass. 304; Jenkins V. Hopkins, 8 Pick. (Mass.) 346; Norton v. Babcock, 2 Mete. (Mass.) 510; Cockran v. Guild, 106 Mass. 29, 8 Am. Rep. 296 ; Hall v. Dean, 13 Johns. (N. Y.) 105 ; Funk v. Vonelda, 11 Serg. & R. (Pa.) 109, 14 Am. Dec. 617 ; Thomas V St. Paul's M. E. Church, 86 Ala. 138, 5 South. 508; Plowman v. Williams, 6 Lea (Tenn.) 268 ; Crowell v. Packard, 35 Ark. 348. (700) Ch. 38] DEED COVENANT AGAINST INCUMBRANCES. § 909 The covenant also affords protection to the purchaser against private easements, such as a right of way, or a right to maintain a drain, etc., of which he has no notice, but not against a pubHc highway."^ But an easement created by the conveyance of a quasi servient tenement is not within the protection of the covenant, nor is the creation of such an easement affected by the fact that the conveyance of such quasi servient estate contains a covenant against incumbrances.'^ So, also, a natural easement, such as the right of support of land by adjacent or subjacent land, or the right to the uninterrupted flow of a stream, is not within the scope of the covenant, and is not to be regarded as an incumbrance."^ But the existence of a right of dower, whether inchoate or con- summate, is a violation of the covenant against incumbrances— at least, if the dower be not already assigned.^ In the latter case it would seem to be rather a violation of the covenant of seisin or of right and power to convey.^ Whether the incumbrance is one not intended by the parties to be included within the covenant is a question of intention, to be established by reference to the conveyance as a whole, its subject- matter, the relation of the parties to it and to each other, and the knowledge of the existence of the incumbrance on the part of the grantee." Thus, if the grantee assumes the payment of a mort- gage on the land, the existence of such mortgage is not a breach of the covenant against incumbrances, though not expressly ex- cepted.* But the fact that the grantee has notice of the incumbrance, while important as an evidence that the incumbrance was not in- 97 2 Min. Insts. 721 ; 2 Tiffany, Real Prop. § 39T ; Jordan v. Eve, 31 Grat. (Va.) 1 ; Deacon v. Doyle, 75 Va. 261 ; Blake v. Everett, 1 Allen (Mass.) 248 ; Preseott v. White, 21 Pick. (Mass.) 341, 32 Am. Dec. 266 ; Wilson v. Cochran, 40 Pa. 333 ; Scriver v. Smith, 100 N. Y. 471, 3 N. E. 675, 53 Am. Rep. 224. 88 2 Tiffany, Real Prop. § 397; Harwood v. Benton, 32 Vt. 724; Dunklee v. Wilton R. Co., 24 N. H. 489. 99 2 Tiffany, Real Prop. § 397 ; Preseott v. Williams, 5 Mete. (Mass.) 429, 39 Am. Dec. 688. 1 Ficklin v. Rixey, 89 Va. 832, 17 S. E. 325, 37 Am. St. Rep. 891 ; Porter V. Noyes, 2 Me. 22, 11 Am. Dec. 30 ; Bigelow v. Hubbard, 97 Mass. 195 ; Bar- nett V. Gaines, 8 Ala. 373; Walker v. Deaver, 79 Mo. 604; Carter v. Den- man, 23 N. J. Law, 260. 2 Ante, § 906 ; Sedgwick v. HoUenback, 7 Johns. (N. Y.) 376 ; Downer v. Smith, 38 Vt. 464. 3 2 Tiffany, Real Prop. § 397 ; Rawle, Gov. Tit. § 85 ; Memmert v. McKeen, 112 Pa. 315, 4 Atl. 542 ; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300 ; Kutz v. McCune, 22 Wis. 628, 99 Am. Dec. 85; Barre v. Fleming, 29 W. Va. 314, 1 S. E. 731. - Freeman v. Foster, 55 Me. 508 ; Watts v. Welman, 2 N. H. 458. (701) § 910 DEED — COVENANT FOR FURTHER ASSURANCE. [Oh. 38 tended to be within the scope of the covenant, is by no means con- clusive upon that point, for it might well be that the grantee ex- pected the grantor to clear it off before executing the deed, or out of the purchase money. ^ § 910. Same — Covenant for Further Assurance of Title. Un- der this covenant the grantee may only demand that his grantor do such further acts as may be reasonably necessary to perfect the title. He cannot demand nor expect that the grantor should do acts which are unnecessary, or impossible of performance; nor can he reject acts that constitute all that is reasonably necessary, merely because they are not satisfactory to him.^ Unlike the other covenants heretofore considered, which, for the most part, sound in damages, the remedy for the breach of this covenant is more often a suit for specific performance, which con- stitutes it a valuable covenant for the grantee.' § 911. Same — Covenant of Special Warremty. This covenant only protects the grantee against the claims or demands of the grantor or of those claiming by, through or under him. Indeed, it is, for the most part, confined to deeds executed by persons in a fiduciary capacity, who are not making the convey- ance for their own benefit, such as trustees, commissioners of the court, etc., though occasionally a deed is found, containing such a covenant, executed by the owner of the land himself to an ill- advised grantee.* § 912. Same — Covenant of General Warranty. This covenant protects the grantee against the lawful claims of all persons whom- soever. The general warranty is, in fact and in essence, substantially the same as a covenant for quiet enjoyment, and it is believed that no action lies upon it until eviction, or at least disturbance of the pos- session." It is immaterial whether this eviction is the act of the Rawle, Gov. Title, § 88 ; Funk v. Voneida, 11 Serg. & R. (Pa.) 112, 14 Am. Dec. 617 ; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432; Burk v. Hill, 48 Ind. 52, 17 Am. Rep. 731; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Grice v. Scarborougli, 2 Speers (S. C.) 649, 42 Am. Dec. 391. 6 2 Tiffany, Real Prop. § 399 ; Rawle, Gov. § 99 et seq. ; Gish v. Moomaw, 89 Va. 376, 17 S. E. 324. 7 2 Tiffany, Real Prop. § 399 ; Rawle, Gov. § 99 et seq. ; Colby v. Osgood, 29 Barb. (N. Y.) 339. 8 2 Min. Insts. 718. »2 Min. Insts. 719; Rawle, Gov. 210, 211, et seq.; Morgan v. Haley, 107 Va. 334, 58 S. E. 564, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846 ; Emerson V. Proprietors of Land, 1 Mass. 464, 2 Am. Dec. 34; Kramer v. Carter, 136 (702) ■Ch. 38] DEED COVENANT OF GENERAL WARRANTY, § 912 grantor, or of a third person claiming under paramount title. ^^ Such eviction, however, need not be actual, but may sometimes be ■constructive, as where the covenantee is compelled under decree of court to purchase the adverse claim or to surrender the posses- sion.'^^ But it is not broken by a tortious disturbance, or even by an eviction, by a mere stranger under no claim of title, since that is beyond the grantor's control, and the grantee has a legal rem- edy against the trespasser or disseisor.^^ A fortiori, a mere tres- pass, there being no eviction, either actual or constructive, is not a breach of the covenant, whether the trespasser be the grantor or a third person.^' The covenant is broken if, at'the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, without any other act on the part of either the grantee or the claimant ; such failure to get possession being regard- ed as tantamount to an eviction.^* And it will be observed that such a covenant as this can never be treated as a covenant against incumbrances, for that would be a departure from its terms, and would make it unavailable by an assignee of the grantee; for as to any prior incumbrance it would be broken at the instant of the execution of the grantor's deed, and, having thus become a mere right of action, would not pass by the grantee's assignment.^'' Mass. 504; Copeland v. McAdory, 100 Ala. 553, 13 South. 545; Bostwick v. Williams, 36 111. 65, 85 Am. Dee. 385. 10 2 Tiffany, Real Prop. § 398 ; Sedgwick v. Hollenback, 7 Johns. (N. T.) 376 ; McGrew v. Harmon, 164 Pa. 115, 30 Atl. 265, 268 ; Akerly v. Vilas, 23 Wis. 207, 99 Am. Dec. 165 ; Davis v. Smith, 5 Ga. 274, 48 Am. Dec. 279 ; Bur-. rus V. Wilkinson, 31 Miss. 537. 11 Morgan v. Haley, 107 Va. 334, 335, 58 S. B. 564, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846 ; McGary v. Hastings, 39 Oal. 360, 2 Am. Rep. 456. 12 2 TifEany, Real Prop. § 398 ; Noonan v. Lee, 2 Black, 499, 17 L. Ed. 278 ; Gardner v. Keteltas, 3 Hill (N. T.) 330, 38 Am. Dec. 637 ; Chestnut v. Tyson, 105 Ala. 149, 16 South. 723, 53 Am. St. Rep. 101 ; Hoppes v. Cheek, 21 Ark. 585. 13 2 Tiffany, Real Prop. § 398; Crosse v. Young, 2 Show. 425; Claunch v. Allen, 12 Ala. 159 ; Avery v. Dougherty, 102 Ind. 443, 2 N. B. 123, 52 Am. Rep. 680. For the distinction between actual and constructive eviction, with il- lustrations, see ante, § 373. 1*2 Min. Insts. 718; Rawle, Cov. 220 et seq. ; Day v. Chism, 10 Wheat. 449, 6 L. Ed. 363 ; Morgan v. Haley, 107 Va. 334, 58 S. E. 564, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846 ; Banks v. Whitehead, 7 Ala. 83 ; Moore v. Vail, 17 111. 190 ; Grist v. Hodges, 14 N. C. 200 ; Clark v. Conroe's Estate, 38 Vt. 469. 18 2 Min. Insta. 719; Grist v. Hodges, 14 N. C. 200; 3 Washburn, Real Prop. (6th Ed.) § 2389. (703) § 913 DEED — COVENANTS OF TITLE BY EBMOTB GRANTOES. [Ch. 38 § 913. Same —• Liability of Remote Grantors upon Personal Covenants of Title. There are certain of the covenants of title that are broken as soon as made, if broken at all; and these do not run with the land, since broken covenants cease immediately upon breach to pass with the land.^' Such are the covenants of seisin, and of the right to convey,^' and, it seems, the covenant against in- cumbrances also.^° But, except in these cases, covenants of title run with the land, so that a remote assignee of the land may sue thereon when a breach occurs in his time ; and this right is not affected by the fact that his immediate grantor has also given him covenants of title which are violated by the same eviction. He may sue either.^" But no owner of the land, after parting therewith, may sue a prior grantor, until he has himself been compelled to pay damages on his own covenant, in favor of one claiming under him, this being re- garded as equivalent to an eviction. But for this rule, several judgments might be recovered against a remote grantor for the same breach by successive owners of the land.^° And where one covenantor is thus sued upon his covenant by the party evicted and judgment recovered against him, in order that he may sue a prior covenantor for reimbursement, the burden is ordinarily upon him to prove in his action that the evictor had a valid title. But he may relieve himself of this burden, if, in the prior suit wherein judg- ment has been recovered against him, he should have notified the le Ante, §§ 906, 907. IT Ante, § 906 ; Building, Light & Water Co. v. Fray, 96 Va. 559, 32 S. E. 58 ; Mygatt v. Coe, 124 N. Y. 212, 26 N. B. 611, 11 L. R. A. 646 ; Greenby v. Wilcoclis, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; Mitchell v. Warner, 5 Conn. 498 ; Chapman v. Holmes, 10 N. J. Law, 20 ; Clement v. Bank of Rutland, 61 Vt. 298, 17 Atl. 717, 4 L. R. A. 425 ; Lawrence v. Montgomery, 37 Cal. 188 ; Ballard v. Child, 34 Me. 355. 18 2 Min. Insts. 719; 2 Tiffany, Real Prop. § 401; Washington City Sav. Bank v. Thornton, 83 Va. 104, 2 S. E. 193 ; Clark v. Swift, 3 Mete. (Mass.) 390 ; Mitchell v. Warner, 5 Conn. 498 ; Carter v. Denman, 23 N. J. Law, 260 ; Lawrence v. Jlontgomery, 37 Cal. 183 ; Moore v. Merrill, 17 N. H. 75, 48 Am. Dec. 593 ; Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 338 ; Blondeau v. Sher- idan, 81 Mo. 545. See ante, § 907. 19 2 Tiffany, Real Prop. § 401; Morgan v. Haley, 107 Va. 331, 58 S. E. 56-1, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846 ; Rawle, Cov. § 216 ; Markland V. Crump, 18 N. C. 101, 27 Am. Dec. 230 ; Withy v. Mumford, 5 Cow. (N. T.) 137. 20 2 Tiffany, Real Prop. § 401; Rawle, Cov. § 216; Wheeler v. Sohler,. 3 Cush. (Mass.) 222; Withy v. Mumford, 5 Cow. (N. Y.) 137; Markland v. Crump, 18 N. C. 94, 27 Am. Dec. 230; Booth v. Starr, 1 Conn. 244, 6 Am. Dee. 233; Redwine v. Brown, 10 Ga. 311; Chase v. Weston, 12 N. H. 413; Clement v. Bank of Rutland, 61 Vt. 208, 17 Atl. 717, 4 L. R. A. 425. (704) Ch. 38] DEED — MEASURE OF RECOVERY ON PERSONAL COVENANT. § 914 more remote covenantor of the pendency of such prior action and requested him to defend it.^^ Neither the covenantee nor any subsequent owner of the land can in general, after having parted with the land, release the cove- nant, so as to deprive a subsequent owner of the land of his right to sue thereon ; and, indeed, it is very questionable whether he can do so while he still holds the land, so far as concerns a subse- quent purchaser without notice of such release. ^^ § 914. Same — Extent or Measure of Recovery upon Personal Covenants of Title. Because of the danger imposing a grievous • burden upon the grantor, in case he should unwittingly convey a defective title, the courts of England, of most of the states, and of the United States have persistently declined to measure the damages, upon a breach of covenant of title, by the value of the land lost as at the time of eviction, but have held that the proper measure of recovery is the value of the land at the time of the warranty, that is, at the time of the conveyance ; and the best standard of such value is in general the price agreed upon at the time of the sale or so much thereof as has been paid (with interest from the date of the eviction and the legal and taxable costs ex- pended in the action in which eviction occurs) .^^ It should be noted in this connection that, if the grantee recovers judgment upon a breach of the covenant of seisin (and probably upon a covenant of power to convey also), the effect is to establish judicially that the grantor is not seised of the land conveyed (or has not the power to convey the same), the logical and legal con- clusion from which seems to be that the grantor's deed to the gran- tee (wherein the covenant occurs) must be deemed to be void.^* In case of a breach of the covenant against incumbrances, the amount the grantee has been compelled to pay in order to satisfy the outstanding incumbrance, or the loss he has actually sustained by reason of the enforcement thereof, constitutes the measure of the recovery, provided it does not exceed the total amount of the consideration or purchase price for the land actually paid by him.^° 21 Rawle, Cov. § 117; Andrews v. Gillespie, 47 N. T. 487. 22 2 Tiffany, Real Prop. § 401 ; Abby v. Goodrich, 3 Day (Conn.) 433 ; Clay- comb V. ilunger, 51 111. 373 ; Crooker v. Jewell, 29 Me. 527 ; Chase v. Weston, 12 N. H. 413 ; Field v. Snell, 4 Cush. (Mass.) 504 ; Susquehanna & W. V. R. & Coal Co. V. Quick, 61 Pa. 339. But see Littlefleld v. Getchell, 32 Me. 392. 23 Hale, Dam. § 158. The states which have adopted the value of the land at the time of eviction as the measure of damages are Connecticut, Maine, Massachusetts, South Carolina and Vermont. See 3 Washburn, Real Prop. (6th Ed.) § 2414. 24 Stinson v. Sumner. 9 Mass. 143, 6 Am. Dee. 49. 2BDimmick v. Lockwood, 10 Wend. (N. Y.) 142; Foote v. Burnet, 10 Ohio, Minor & W.Reai. Prop.— 45 (705) § 915 DEED — ^AFTEE-ACQUIKBD TITLE ESTOPPBL. [Ch. 38 § 915. Same — Effect of Personal Covenants of Title in Estop- ping Grantor to Set Up After-Acquired Title. When land is con- veyed without any covenants of title, the grantor is, in general, not estopped to set up a title which he has afterwards acquired. On the other hand, a covenant of title does work an estoppel in such case, partly in order to avoid circuity of action, seeing that, if the grantor were allowed to recover upon the after-acquired ti- tle, he would be immediately liable to the grantee upon his cove- nant of title to the extent of the value of the land ; but also for an- other still more urgent reason, namely, that honesty and fair dealing forbid that one shall assert a right in opposition to his own aver- ments and representations. Hence a grantor is estopped to set up a title which he has afterwards acquired, not only where there is a covenant of general warranty, but in any case where the deed of conveyance recites or affirms, expressly or impliedly, that the gran- tor is seised of the estate which the deed purports to convey, and upon the faith of which the bargain was made.^® § 916. IX. Conclusion of the Deed. This part of a deed in general includes an affirmation that the signatures and seals at- tached thereto are those of the parties stipulating, in some such form as the following: "Witness the signatures and seals of the parties." ^^ This part of the deed also comprehends the date, which is not essential; so that though there be no date, or a false or impossible date, the deed is yet valid. The true date is the time when the deed is proved to have been delivered (being, indeed, only the rendering of the Latin phrase, datum et deliberatum), but prima facie it is the time named as the date. The time of acknowledg- ment, or other authentication for registry, sometimes determines, or at least assists in determining, the true date.^* § 917. X. Reading the Deed. It is necessary to the validity of a deed, as of any other instrument, that the party executing the same should know, or should have a fair opportunity to know, its contents. The essential thing is to acquaint the grantor in the deed 317, 36 Am. Dee. 90; Guthrie v. Russell, 46 Iowa, 269, 26 Am. Rep. 135; Col- lier V. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107. See Hale, Dam. § 159. 2 8 Post, § 1066; 2 Min. Insts. 710; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703; Flanary v. Kane, 102 Va. 566, 46 9. E. 312; Clark v. Baker, 14 Cal. 612, 76 Am. Dec. 449 ; Hagensick v. Castor, 53 Neb. 495, 73 N. W. 932. 2T See post, § 10."2. 2 8 2 Min. Insts. 726, 727; 2 Bl. Com. 304; Bac. Abr. Lease (I), 1. See post, § 1058. (TOG) Ch. 38] DEED — SIGNATURE. § 919 with its contents, and it is immaterial whether that be done by his reading the instrument for himself, or by its being read to him. In the latter case it must, of course, be truly read; and if misread as to any part, it is, as to so much at least, and doubtless as to all dependent thereon, merely void. But if correctly read, the fact that it was misunderstood does not affect the validity of the instru- ment.^" § 918. XI. Sealing and Signing the Deed — 1. Origin of the Seal. The use of seals as marks of authenticity to letters and oth- er writings is extremely ancient. We read of it among the Jews and Persians in the earliest records of history. And in the book of Jeremiah there is a remarkable instance, not only of an attesta- tion by seal, but also of the other formalities usually attending a Jewish purchase.*" In the civil or Roman law, also, seals were the evidence of truth. *^ But in the times of the Saxons they were not much used in Eng- land. The Saxon method was, for such as could write, to sub- scribe their names, and, whether they could write or not, to affix the sign of the cross, a custom which illiterate persons observe to this day, by signing a cross for their mark when unable to write their names ; and this inability to write, and therefore making a cross in its stead, is honestly avowed by one of the Saxon kings at the end of his charters — propria manu, pro ignorantia literarum, signum sanctse crucis expressi et subscripsi. In like manner, and for the same insurmountable reason, the Normans, a brave but un- lettered nation, upon their first settlement in France, used the practice of sealing only, without writing their names, which cus- tom continued when learning made its way among them, though the reason had ceased, and was by them, upon the Conquest, intro- duced into England instead of the English method of parties writ- ing their names and signing with the sign of the cross. And in the reign of Edward I every freeman, and even such of the more substantial villeins as were fit to be put upon juries, had their dis- tinct, particular seals. ^^ § 919. Same — 2. Deed to be Signed as Well as Sealed. Sealing alone (without signing) was sufficient in England to authenticate 29 2 Mln. Insts. 727; 2 Bl. Com. 304; Thoroughgood's Case, 2 Co. 9; School Committee v. Kesler, 67 N. C. 443. so 2 Mln. Insts. 727; 1 Kings, ch. xxl; Daniel, ch. vl; Esther, ch. vlli; Jer. ch. xxxU. 31 2 Mln. Insts. 727. 3 2 2 Mln. Insts. 727, 728; 2 Bl. Com. 305, 306; 2 Th. Co. Lit. 233. (707) § 919 DEED SIGXATUEH. [Ch. 38 a deed, until the statute 29 Car. II, c. 3, expressly directed signing in grants of land and some other kinds of deeds. As a general thing in this country, the statutes require deeds to be signed. But down to within a recent date there were a few states in which the statutory requirement went no further than the "sealing and delivery" in the presence of witnesses.^' § 920. Same — 3. Nature of the Seal — Common-Law Doctrine. By the original common law a seal was universally defined, until recently, to be an impression on wax, or some other tenacious material. But of late imposing authorities make it at least possible that hereafter, by an act of court-made law, it will be held (contrary to the notorious fact) that, by the common law, a seal is an im- pression on any substance capable of receiving and retaining an impression, and, therefore, as well on the paper or parchment it- self, as on wax or wafer.-" It was held at common law that the impression need not be ac- knowledged as a seal in the body of the instrument, and that wheth- er a writing is sealed or not is to be proved by the fact when it is produced, while the question whether the impression appearing on the wax is the seal of the party is to be proved like any other fact, and, furthermore, that several parties may seal with one seal, or acknowledge one impression as the seal of all.'^ A statement in the instrument that it is sealed does not suffice as a substitute for a seal.^" § 921. Same — Statutory Requirements as to Sealing in the United States. As a general thing in this country natural persons are permitted to substitute a "scroll" for the common-law seal, and 83 Wms. Real Prop. 120; Sicard v. Davis, 6 Pet. 324, 8 L. Ed. 342; Plum- mer v. Russell, 2 Bibb (Ky.) 174. 3*2 Mill. lusts. 661, 728; 1 Min. Insts. ."lOS ; 1 Sugden, Powers, 282, 28.S. c. vl, § Iv, 9 ; Bac. Abr. Obligation (C) ; Reg. v. St. Paul's, 7 Q. B. 238, 239 : Pillow V. Roberts, 13 How. 473, 474, 14 L. Ed. 228 ; Curtis v. Leavitt, 15 N. Y. 9; Bates v. Boston & N. Y. 0. R. Co., 10 Allen (Mass.) 251; Haven v. Grand Junction R. & Depot Co., 12 Allen (Mass.) 337. 35 2 Min. Insts. 728, 729; Bac. Abr. Obligation (C) ; Com. Dig. Faits (A. 2); Ooddard's Case, 2 Co. 5a ; 1 D.ver, 19a ; Ld. Lovelace's Case, W. Jones, 268 ; Ball V. Dunsterville, 4 T. R. 313; Cooch v. Goodman, 2 Ad. & B. 598; Ball V. Taylor, 1 Car. & P. 417; Warren v. Lynch, 5 Johns. (N. Y.) 244; Mackay v. Bloodgood, 9 Johns. (N. Y.) 285; Proprietors of Mill Dam Foundery v. Hovey, 21 Pick. (Mass.) 417, 428 ; Devereux v. McJIahon, 108 N. C. 134, 12 S. E. 902, 12 L. R. A. 205 ; Wing v. Chase, 35 Me. 260 ; Taylor v. Glaser, 2 Serg. & R. (Pa.) 502 ; Carter v. Doe ex dem. Chaudron, 21 Ala. 88. 36 Taylor v. Glaser, 2 Serg. & R. (Pa.) .n02 ; McPhersou v. Reese, 58 Miss. 749 ; Deming v. Bullitt, 1 Blackf. (Ind.) 241 ; Davis v. Judd, 6 Wis. 85. (708) Ch. 38] DEED — MODE OF DELIVERY. § 923 in some states the distinction between sealed and unsealed instru- ments has been entirely abolished.*^ § 922. XII. Delivery of the Deed. The next requisite of a valid deed is that it be delivered to the party himself or his agent. A deed takes effect only from this delivery ; for, if the date be false or impossible, the delivery ascertains the time of it. And if an- other person seals the deed, yet if the party deliver it himself, he thereby adopts the sealing, and by parity of reason the signing also, and makes them both his own.^^ The deed of a corporation needs no delivery, the affixing of the common seal giving perfection to it vi^ithout any further ceremony, at least if it be done with that intent; for if the order to affix the seal be accompanied by a direction to the officer to retain the con- veyance in his hands until certain conditions be complied with, the sealing does not amount to delivery.^' § 923. Same — Mode of Making Delivery. The usual mode of making delivery of a deed is to take it up and say, "I deliver this as my act and deed." But it may be without words, or by mere words, without any act of delivery ; as if the writing, sealed, be handed to the grantee, or whilst it lies upon the table, the feoffor says to the feoffee, "Take the writing; it is sufficient for you," or, "Take it as my deed," or the like. Nor, indeed, is a formal delivery essential, if there be acts evidencing an intention to deliver. It is not even, essential that the grantee should be present at the time, or the delivery be personally made to and accepted by him. And al- though there must be an acceptance of the deed (which is usually implied in the delivery), and presumed from the beneficial char- acter of the transaction, supposing it be for the grantee's benefit, there is no necessity that the acceptance should take place imme- diately upon the delivery.*" The deed need not be delivered to the grantee in person in order to be effectual. If delivered to a third person unconditionally, and without reserving the right to recall it or otherwise to control its 3T 2 Reeves, Real Prop. §§ 1106, 1107. 38 2 Min. Insts. 731; 2 Bl. Com. 307. 39 2 Min. Insts. 731; Angell & Ames, Corp. § 227. 40 2 Min. Insts. 731 ; 2 Bl. Com. 306, note (17) ; Sheppard's Touchst. 57 et seq. ; 4 Kent, Com. 454 et seq. ; 2 Th. Co. Lit. 234, 235 ; Frank v. Prank, 100 Va. 627, 42 S. B. 666 ; Church v. Gilman, 15 Wend. (N. Y.) 656, 30 Am. Dec. 82, 89, note; Jones v. Jones, 6 Conn. Ill, 16 Am. Dee. 39, note. See Brown V. Westerfield, 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. 537, note. The re- cording of a deed is not delivery, but it affords prima facie evidence of de- livery. Davis V. Pacific Imp. Co., 118 Cal. 45, 50 Pac. 7; Ellis v. Clark, 39 Fla. 714, 23 South. 410. (709) § 923 DEED — MODE OF DELIVERY. [Ch. 38 use, with direction to deliver to the grantee after the grantor's death, or upon any certain future event, the delivery is effectual to pass title to the grantee, and the grantor cannot recall it.*^ But whilst a deed may be delivered, not only to the grantee him- self, but to any stranger for his use, or declared to be delivered although the grantee be absent, yet if delivered to a stranger, or even to the grantee himself, without any declaration or other mat- ter to show that it is for the use of the grantee, it is not a sufficient delivery.^^ On the other hand, since delivery is a matter of inten- tion, not of physical or manual transfer, it would seem that a dec- laration to a third person of an intention that the deed shall take effect would be quite as effective as a manual transfer to him, if it can be satisfactorily established.*' And whilst it is not indispensable that the grantee's acceptance should ensue immediately, and his subsequent assent relates back to the delivery, yet if there be no subsequent acceptance, or none before some other party acquires, for valuable consideration, by conveyance of the grantor or otherwise, a right to the property or to charge it, the deed is ineffectual.** § 924. Same — Proof of Delivery. The delivery of the deed, like any other fact, may as well be inferred from circumstances as proved by positive testimony. Thus, although the subscribing witnesses remember nothing of the delivery, nor even of the trans- action itself, yet if they' recognize their signatures to the attesta- tion, and especially if they declare that they know what is neces- sary for the valid execution of such an instrument, and would not have attested it, had they not supposed everything was regularly *i Frank v. Frank, 100 Va. 627, 42 S. E. 666 ; Trask v. Trask, 90 Iowa, 318, 57 N. W. 841, 48 Am. St. Rep. 446 ; White v. Pollock, 117 Mo. 467, 22 S. W. 1077, 38 Am. St. Eep. 671; Bury y. Young, 98 Cal. 446, 33 Pac. 338, 35 Am. St. Rep. 186 ; Wheelwrlgbt v. Wheelwright, 2 Mass. 454, 3 Am. Dec. 66; Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. 539, note. ■12 2 Min. Insts. 732; Sheppard's Touehst. 57; Mitchell v. Ryan, 3 Ohio St. 377; Jackson v. Phipps, 12 Johns. (N. Y.) 418; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315 ; Braman v. Bingham, 26 N. Y. 483 ; Bovee v. Hinde, 135 111. 137, 25 N. E. 694 ; Dwinell v. Bliss, 58 Vt. 353, 5 Atl. 317. 43 2 Tiffany, Real Prop. § 406; Regan v. Howe, 121 Mass. 424; Moore v. Hazelton, 9 Allen (Mass.) 102; Vought v. Vought, 50 N. J. Eq. 177, 27 Atl. 489; Kane v. Mackin, 9 Smedes & M. (Miss.) 3S7 ; Rushin y. Shields, 11 Ga. 636, 56 Am. Dec. 436; DieM v. Emig, 65 Pa. 320; Linton v. Brown (0. C.) 20 Fed. 455. **2 Min. Insts. 732; Skipwith v. Cunningham, 8 Leigh (Va.) 271, 31 Am. Dec. 642 ; Walwyn v. Coutts, 3 Meriv. 707, 3 Sim. 14 ; Garrard v. Lord Lauderdale, 3 Sim. 1 ; Acton v. Woodgate, 2 My. & K. 97 ; Brovyn y Wester- field, 47 Neb. 399, 66 N. W. 439, :>3 Am. St. Rep. 544. note. (710) Ch. 38] DEED — CONDITIONAL DELIVERY. § 925 done as required by law, it justifies the conclusion, in the absence of any contrary testimony, that the delivery took place.*" So, also, it seems that the signing, sealing and acknowledgment of a conveyance raises a presumption of delivery.** § 925. Same — Conditional Delivery or Delivery in Esctow. The delivery of a conveyance may be either absolute or conditional. Of absolute delivery nothing particular needs to be said, for every delivery is presumed to be absolute, unless it appears to be condi- tional. It is of the essence of a conditional delivery (or escrow) of a sealed instrument, perfect on its face, that it should be made, not to the grantee himself, nor to his known agent (for then it must perforce be absolute for the most part, and any condition annexed will be void), but made to a stranger, to be delivered by him, as the deed of the grantor, when certain conditions are complied with. It is then styled an escrow, in respect to which Mr. Preston enu- merates the following principles : (1) The writing does not operate as a deed till the second de- fivery. (2) The deed is of none effect until the conditions be perform- ed, although the grantee obtain possession of it, or even though the person deputed to make the second delivery wrongfully turn it over to him. (3) On the second delivery rightfully made, it takes effect by relation, in respect of title and right to the intermediate rents, from the original delivery. (4) Supposing the conditions performed, and the deed delivered the second time, its effect is not impaired by the death of either or both of the parties, or by a supervening disability in the grantor, such as coverture of a feme, before the second delivery.*' As the escrow takes effect from the original delivery, if the grantor were then under disability, as of infancy, from which he is relieved before the second delivery, yet the deed operates noth- ing; but if at the first period there be a mere impediment connected 4B 2 Min. Insts. 732 ; Currle v. Donald, 2 Wash. (Va.) 58. See Hayes v. Boylan, 141 111. 400, 30 K. B. 1041, 33 Am. St. Rep. 326, note; Cazassa v. Cazassa, 92 Tenn. 573, 22 S. W. 560, 20 L. R. A. 178, 36 Am. St. Rep. 112. 40 2 Min. Insts. 733; Hutchison v. Rust, 2 Grat. (Va.) 394; KlUe v. Ege, 79 Pa. 15; Diehl v. Emig, 65 Pa. 320; Braiin v. Monroe, 11 Ky. Law Rep. 324. But see Boyd v. Slayback, 63 Cal. 493; Alexander v. De Kermel, 81 Ky. 345. 47 2 Min. Insts. 734, 735; 3 Preston, Abst. Tit. 73 et seq. ; Sheppard's Touchst 59; Butler & Baker's Case, 3 Co. 35b; Blair v. Security Bank, 103 Va. 762, 50 S. E. 262. (711) § 925 DEED— CONDITIONAL DELIVERY. [Ch. 38 with the situation of the property, and having no concern with his personal capacity to contract, and the impediment is removed prior to the second delivery, the deed is good. Thus, where a disseisee, being out of possession, makes at common law a lease for years, and delivers it to a stranger as an escrow, bidding him enter on the land, and there to deliver the writing to the lessee, as his deed, it is a good lease.** And whatever form of words be employed, care must be taken that the language shall signify that the instrument is delivered as the grantor's writing of escrow, and not as his deed ; for in the latter case, although it is to be delivered to the grantee only on some future event, yet it is the grantor's deed immediately, and the third person is a trustee of it for the grantee, so that, if the grantee obtain the writing from the trustee before the event happens, it will avail him fully, at least in a court of law, and the grantor is put to his remedy against the trustee.*^ § 926. XIII. Attestation of Deed by Witnesses or Acknowledg- ment Thereof by Grantor. The attestation of the deed by wit- nesses is not at common law essential to the validity of the deed, but only a proper and convenient method of establishing its gen- uineness and authenticity. '''' In this country, the local statute must be consulted in order to determine (1) whether attestation is required, and if so, (2) how many witnesses are required, and (3) in certain states, the result of a lack of attestation. There are states in which attestation is necessary in order to give a deed validity between the parties, and others in which a deed may be valid as between the parties without attestation, but invalid as against subsequent purchasers even with notice."^ A witness need not actually see the deed executed. If the gran- tor acknowledge it to him, that is sufficient. °^ The acknowledgment of the grantor before certain functionaries designated by the statutes on the subject is not a part of the deed and does not generally affect its validity as between the parties, but is necessary to entitle the deed to record, unless it be proved 48 2 Min. Insts. 73.5; Sheppard's Touchst. 59; Butler's & Baker's Case, 3 Co. 35b. 4 9 2 Min. Insts. 73.1, 736. 60 2 Min. Insts. 736 ; 2 Bl. Com. 307, note (18). 51 2 Reeves, Real Prop. § 1114. 52 2 Min. Insts. 736; Parks v. Mears, 2 Bos. & P. 217; Jones v. Eobblns, 74 Tex. 615, 12 S. W. 824. (712) Ch. 38] DEED DESCRIPTION OB" PROPERTY. § 928 for record in some other alternative method provided by statute, €• S-' by the oath of one of the vvritijesses.^' § 927. XIV. Registry of the Deed. The statutes of the dif- ferent states vary as to the necessity for recording. As a general proposition it is not necessary in order to give effect to the deed as between the parties. At least one state requires it.^* In other states only certain classes of deeds, e. g., deeds of married women and tax deeds, are required to be recorded. But the record of a deed is necessary in order to protect the gran- tee against lien creditors of, and subsequent purchasers from, the grantor without notice. § 928. Description of Property Conveyed — In General. It is obvious that, in order to pass any property, the deed or other in- strument transferring the same must describe the property intend- ed to be conveyed with sufficient accuracy to identify it. Other- wise, the conveyance is void for vagueness and indefiniteness.'^^ And if the description be so vague and uncertain as not to be self- explanatory, the burden rests upon those claiming under it to show by evidence aliunde to what it truly applies; ^^ and, in the absence of such evidence, that rule of construction is adopted which de- clares that ambiguous or doubtful language in a deed is to be con- strued most strongly against the grantor, and that the grantee- shall have the benefit of such doubt or ambiguity, provided such con- struction does not work an injury to the rights of third persons. °' While a deed is always void if the description of the property conveyed be too vague and indefinite, it is not necessarily void if' the description be false, paradoxical as this may seem. For it is a well-established rule for the construction of such instruments that if, after rejecting so much of the description as is false, enough 63 2 Reeves, Real Prop. § 1115. But a few of the states require the ac- knowledgment to give the deed validity, even as between the parties. 54 Maryland, Code Pub. Gen. Laws, art. 21. 5 5 George v. Bates, 90 Va. 839, 20 S. E. 828; United States v. King, 3 How. 787, 11 L. Ed. 824 ; Kea v. Robeson, 40 N. C. 373 ; Dickens v. Barnes, 79 N. C. 490; Westfall v. Cottrills, 24 W. Va. 763; Clark v. Chamberlln, 112 Mass. 19; Lumbard v. Aldrich, 8 N. H. 81, 28 Am. Dec. 381; Wilson V. Inloes, 6 Gill (Md.) 121 ; - Holme v. Strautman, 35 Mo. 293 ; Howard v. North, 5 Tex. 290, 51 Am. Dee. 769. 56 Latent, but not patent, ambiguities may be explained by parol evidence, and facts existing at the time of the conveyance and prior thereto may be proved by parol evidence, with a view of establishing a particular line as being the one contemplated by the parties, when, by the terms of the deed, such line is left uncertain. 57 But this rule is only applied as a last resort. Clough v. Bowman, 15 N. H. 504 ; Dodge v. Walley, 22 Cal. 228, 83 Am. Dee. 61. (713) § 928 DEED DESCRIPTION OF PEOPBRTY. [Ch. 38 remains to identify the thing described, the instrument is operative, the legal maxim being, "Falsa demonstratio non nocet, cum de corpore constat.'' ^* There are various methods of describing land in deeds of con- veyance, and frequently the parties, not content with one form of description, seek to make the assurance doubly sure by resorting to several. In such cases great caution should be observed to see that the different descriptions are not inconsistent with, or repug- nant to, one another. If they are thus repugnant, one or the other of three consequences will result. Either the deed will (1) be made hopelessly vague and indefinite, and will therefore be void alto- gether; or (2) that description is adopted which is most certain, though it may not be the one really intended; or (3) that portion which is repugnant may be rejected altogether, and if a sufficient description remains to identify the property intended to be trans- ferred the deed will stand; or (4) that interpretation of ambiguous descriptive words may be adopted which would be most beneficial to the grantee.^" § 929. Same — Various Methods of Describing Land in Convey- ances — Enumeration. Aside from the very dangerous and unsuit- able method of describing the land conveyed in general terms, such as "the estate," or "the farm," or "the mill," or such and such "woods" or "mountain lands," or "all my real es- tate," etc., which, even though they may suffice to pass the land intended, are obnoxious to the objection that they describe it by means of attributes more or less transient and temporary, and therefore liable to change with time, so that in the course of years the land conveyed may become increasingly difficult of identifica- tion,*"* the methods of description most usually employed in convey- ances as furnishing lasting and permanent means of identifying the land are the following: (1) Description by government sur- vey, though this does not exist in the older states; (2) description by reference to a plat or map; (3) description by monuments, courses and distances, or by metes and bounds; (4) description of city lots by reference to streets and numbers; (5) description by reference to prior conveyance; (6) description by the quantity of land or the number of acres ; (7) the effect of a deed in including 6S2 Min. Insts. 1063; Day v. Trigg, 1 P. Wms. 286; Doe v. Galloway, 5 B. & Ad. 43 ; Goodtitle v. Southern, 1 JI. & S. 299 ; Boardman v. Reed, 6 Pet. 345, 8 L. Ed. 415 ; Hathaway v. Juneau, 15 Wis. 264 ; Flanary v. Kane 102 Va. 547, 46 S. B. 312, fiSl. 5 3 Washburn, Real Prop. (6th Ed.) § 2315 et seq. «o See 2 Tiffany, Real Prop. § 387. (714) Ch. 38] DEED DESCRIPTION OF PROPERTY PLATS. § 931 buildings, privileges and appurtenances along with the land con- veyed. § 930. Same — I. Description by Government Survey. In those newer states of the Union, which have been carved out of the pub- lic domains of the United States, it is customary to describe land conveyed in accordance with the system of "rectangular surveys" established long since by act of Congress. °^ Mr. Tiffany, in his excellent treatise on the law of Real Property, describes this sys- tem as follows : ^' "By this system, the public lands are divided into 'townships,' each six miles square, these being formed by lines running east and west, six miles apart, which are crossed at intervals of six miles by lines running north and south. Each township, thus in- cluding approximately thirt3'-six square miles, is divided into thir- ty-six rectangular portions, each one mile square, called a 'sec- tion.' A section is the smallest subdivision of which the lines are actually run on the ground, but smaller subdivisions are recog- nized, there being the 'quarter section,' containing one hundred and sixty acres, formed by running lines at right angles from points on the section boundaries half way between the corners, and 'quarter quarter sections' of forty acres each. The areas of the various divisions do not, however, always correspond exactly to the figures above given, owing to irregularities in the land and the convergence of the meridians, as one goes further north. "Each tier of townships, running north and south, is known as a 'range,' and the range is described with reference to a line known as the 'principal meridian' ; while each tier of townships, running east and west, is described with reference to some parallel of lati- tude taken as a 'principal base line.' Thus, a township is referred to as being a certain number north or south of a certain base line, and a certain number east or west of a certain meridian. "The thirty-six sections in the township are numbered consecu- tively, beginning at the northeast corner and counting west there- from, and then proceeding east on the tier of sections next below, and so on until section thirty-six is reached in the southeast corner. "The quarter section or quarter quarter section is defined with reference to the (section of which it forms a part, as when one conveys 'the southeast quarter of the northwest quarter of section ten, in township thirty-five nortji, range five east.' " § 931. Same — II. Description by Reference to Plat or Map. A reference in the conveyance to a plat or map for the purpose of 81 Rev. St. § 2395 et seq. (U. S. Comp. St. 1901, p. 1471). 62 2 Tiffany, Real Prop. § 388. See, also, Warvelle, Abst. Tit. 138 et seq. (715) § 931 DEED DESCRIPTION OF PKOPBETT PLATS. [Ch. 38 describing the land conveyed makes such plat or map in effect a part of the conveyance, and it may then be used to identify the land."' But in such case care should be taken to have the plat recorded along with the deed (unless it has already been recorded in connection with some prior deed), or else the means of identifi- cation of the property is liable to be lost or destroyed. This method of description is quite usual in case of a large tract of land divided into smaller lots for purposes of sale, such lots being first carefully surveyed and then numbered upon the plat, and upon their transfer described either by metes and bounds, cor- responding to the survey, or by their number upon the plat or map, or both.^* § 932. Same — III. Description by Monuments, Courses and Distances, or by Metes and Bounds. In those older states, which have not the advantage of the government survey, as previously de- scribed, °° the most usual and safest method of describing land, at least country land, is by metes and bounds ; that is, by the selection of certain landmarks or "monuments'' of as permanent a nature as possible, situated at the angles of the boundary lines, and by survey marking the courses and distances between them. The ac- curate description of these monuments (if permanent) and the ac- curate statement of the courses and distances between them con- stitute perhaps the best and safest description practicable, in the absence of a government survey. The purpose, of course, is to mark out the boundaries by math- ematical lines, and to this end monuments are not essential, though very useful for the purpose of correcting defective measurements. Usually, both monuments and courses and distances are employed, and, if there be any irreconcilable divergence between them, the courts will look to the intention of the parties, so far as it can be ascertained, to determine which should prevail. But, in the ab- sence of evidence of intention on this point, the general presump- tion is that a call for fixed monuments is to take precedence over inconsistent calls for courses and distances, upon the theory that the former are more apt to have been in the minds of the parties than mere imaginary mathematical lines."''' «S2 TiEfany, Real Prop. § 389; Schwalm v. Beardsley, 106 Va. 407, 56 S. B. 135 ; Deery v. Cray, 10 Wall. 263, 19 L. Ed. 887 ; Borough of Birmmgham V. Anderson, 48 Pa. 253; Nichols v. New England Furniture Co., 100 Mich. 230, 59 N. W. 155; Sears v. King, 91 Ga. 5T7, 18 S. E. 830; Sanders v. Ran- som, 37 Pla. 457, 20 South. 530. 6* See 2 Tiffany, Real Prop. § 389. 6 5 Ante, § 930. 6 8 2 Min. Insts. 22, 23; 2 Tiffany, Real Prop. § 390; Fentress t. Pocahontas (716) Ch. 38] DEED DESCRIPTION — STREET AND NUMBER. § 933 So, also, in case of a conflict between the distance of one line and the course of another, the general rule is that the intention of the parties shall control, and no arbitrary rule can be laid down that the distance must yield to the course, or vice versa. *^ A "monument" consists of any object or mark on the land which may serve to locate the boundary line at a given point. It may be a river, rock, tree, or other natural object, more or less permanent, or it may be artificial, as a wall, post, ditch or road.'^ If a corner monument be itself a part of adjoining land or a structure thereon, as a house, which includes the land under it, the boundary, in the absence of evidence of a contrary intent, will begin at or extend to the side or edge of the monument only.*' But if the monument does not itself constitute land, nor involve the occupation of land, such as a river, highway, wall, tree or post, the boundary line in general extends to the center thereof.'" A "course" is the direction in which a line runs, stated with ref- erence, not to its terminus, but to its correspondence with a cer- tain point of the compass;'^ while surveyors' tables of measure- ments are ordinarily used in measuring the distances, that is, rods, perches, poles, etc. § 933. Same — IV. Description of City Lots by Reference to Streets and Numbers. While the conveyance of a house in a city by its street and number is a sufficiently certain description, it would be imprudent to depend upon that alone, as the system of numbering might at any time be altered, and the possibility might throw doubt and uncertainty around the title. The system of streets in a city, however, is sufficiently per- manent to be regarded as a good monument from which the calls for distances may be made. Caution must be exercised, however, Fowling Club, 108 Va. 155, 60 S. E. 633; Newsom v. Pryor, 7 Wheat. 10. .-, L. Ed. 382; White v. Luniiig, 93 U. S. 514, 23 L. Ed. 938; Murdock v. Chapman, 9 Gray (Mass.) l."i(j ; Pernam v. Wead, 6 Mass. 131 ; Buffalo, N. Y. & B. R. Co. V. Stigeler, 01 X. T. 348; Wliite v. Williams, 48 N. Y. 344; Cox V. Couch, 8 Pa. 147 ; Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726 ; John- son V. Archibald, 78 Tex. 96, 14 S. W. 266, 22 Am. St. Rep. 27. 6T Green v. Pennington, 105 Va. 808, 54 S. E. 877 ; Ruffner v. Hill, 31 W. Va. 434, 7 S. E. 13; Preston v. Bowmar, 2 Bibb (Ky.) 493; Loring v. Norton, 8 Me. 61 ; Scammon v. Sawyer, 4 Jle. 429. 6 8 2 Tiffany, Real Prop. § 390. 6 9 Sehwalm v. Beardsley, 106 Va. 409, 56 S. E. 135; City of Boston v. Richardson, 13 Allen (Mass.) 146, 1.54. 7 Sehwalm v. Beardsley, 106 Va. 409, ."i(j S. E. 135; City of Boston v. Richardson, 13 Allen (Mass.) 146. 1.54 ; Freeman v. Bellegarde, 108 Cal. 179, 41 Pae. 289, 49 Am. St. Rep. 76; Warner v. Southworth, 6 Conn. 471; Warfel v. Knott, 128 Pa. 528, 532, 18 Atl. 390. 71 2 Tiffany, Real Prop. § 390. (717) § 934 DEED DESCRIPTION REFERENCE TO PRIOR DEED. [Ch. 38 in such descriptions, to give accurately, with reference to the points of the compass or otherwise, the particular corners of the intersecting streets from which the measurements are to be made, as well as the directions or courses and distances.''* The distances in such cases are usually measured by feet and inches. § 934. Same — V. Description by Reference to a Prior Convey- ance. It is quite usual in describing land conveyed in a deed to refer to a prior deed conveying the same land, whereby the descrip- tion contained in the prior deed is made part of the latter. If the first description is accurate, and the land conveyed by both deeds is identically the same tract, neither more nor less, this is an excellent mode of describing land, as it tends to prevent, rather than to create, confusion in the title.''^ § 935. Same — VI. Description by Quantity of Land or Number of Acres. This, like the last mentioned, is generally used merely as a subordinate and inferior mode of describing the land convey- ed. Indeed, it is not a description of boundaries at all, but is some- times useful as corrective or cumulative matter of description. If, however, it is inconsistent with the other more important and val- uable elements of description, it must give way to them. Thus, where the quantity, or estimated quantity, of land to be transferred is inconsistent with the calls for monuments or courses and dis- tances, or with a description in a prior deed to which reference is made, it must yield to them.'* § 936. Same^VII. Effect of Deed in Passing with the Land All Buildings, Privileges and Appurtenances. "L,and, in the legal signification," says Lord Coke, "comprehendeth any ground, soil or earth whatsoever, as meadows, pastures, woods, moors, waters, marshes, furzes and heath." "It legally includeth also castles, houses and other buildings." '" And from the same authority we learn that all things appendant and appurtenant to the land, as in- cidents or adjuncts thereto, such as easements, profits d prendre, etc., shall pass with the manor, without express mention.'" But T2 See Clark v. Hutzler, 96 Va. 73, 30 S. E. 469. 's Langmaid v. Hlggins, 129 Mass. 353. TiReid V. Rhodes, 106 Va. 701, 56 S. B. 722; Doe ex dem. Arden t. Thompson, 5 Cow. (N. T.) 371 ; Petts v. Gaw, 15 Pa. 218 ; Emery v. Fowler, 38 Me. 99; Thompson v. Sheppard, 85 Ala. 611, 5 South. 334; Doe ex dem. Phillip's Heirs v. Porter, 3 Ark. 18, 36 Am. Dec. 448; Ray v. Pease, 95 Ga. 153, 22 S. E. 190. 75 1 Th. Co. Lit. 197; 2 Mln. Insts. 918. 78 1 Th. Co. Lit. 205; 2 Mln. Insts. 918. (718) Ch. 38] DEED — RECITAL OF PAYMENT OP CONSIDERATION. § 939 land cannot be appurtenant to other land, so as to pass by deed, unless it comes within the description contained in the deed.'^ All these propositions, namely, that the grant of land at com- mon law carries with it, as included therein, without express men- tion, all trees, houses and other buildings (for cujus est solum, ejus est usque ad coelum), and also things appendant and appurte- nant thereto, are well settled.''* § 937. The Consideration Supporting the Deed — Discussion Outlined. The important and extensive subject of the considera- tion to support a conveyance may be developed under the follow- ing heads: (1) Efiect of want of consideration; (2) effect of a recital in the conveyance of the payment of the consideration ; (3) illegal considerations; (-i) considerations involving fraud; (5) con- siderations involving mistake or misapprehension. § 938. I. Effect of Want of Consideration. As between the parties, a conveyance needs no consideration to support it, being an executed contract, except that, at common law, in order that a deed may take effect as a bargain and sale under the statute of uses, a valuable consideration must move from the bargainee, and, in order that it may operate as a covenant to stand seised, there must be, at common law, a consideration of natural love and affection ; that is, the covenantee must be nearly related to the covenantor by blood or afHnity.'^^ Before leaving this branch of the subject, it may be observed that a consideration, the performance of which is utterly and naturally impossible, can confer no benefit, and is therefore equivalent to no consideration at all ; nor will the law notice an act that is obviously impracticable and ridiculous, as that A. shall go from San Francisco to London in an hour. In such cases, the situation is the same as if no consideration at all were mentioned in the conveyance.*" § 939. II. Effect of Recital in Conveyance of Payment of Con- sideration. Where there is a valuable consideration to support the conveyance, it is usual to recite the fact in the conveyance, as well as the amount thereof; and indeed, even in cases of gift, it is quite usual, though scarcely necessary in modern times, to recite the payment of a nominal consideration, such as one dollar, upon the theory that there should be a valuable consideration to support TT Riddle V. Littlefleld, 53 N. H. 508, 16 Am. Rep. 388 ; 3 Washburn, Real Prop. (6th Ed.) § 2308. 78 2 Mln. lusts. 919 ; Sheppard's Touchst. 89 et seq., where ample explana- tions and illustrations are given. T 9 Ante, §§ 400, 404; 2 Min. Insts. 807, 809. 80 2 Min. Insts. 703 ; 1 Chitty, Cont. 64. (719) § 939 DEED RECITAL OP PAYMENT OF CONSIDERATION. [Gh. 38 the deed as a bargain and sale, and also in order to rebut any im- plication of a resulting trust in favor of the grantor.*^ E converso, the recited consideration can never be questioned or contradicted, as between the parties, (1) for the purpose of showing that the deed was not founded on a valuable consideration, and so defeat it; or (2) for the purpose of raising a resulting trust in the grantor, es- pecially where a third person, in reliance upon such recital, has ac- quired rights thereunder. In the absence of fraud or mistake, the recital must be treated as conclusive for the purpose of giving effect to the operative words of the conveyance. ^^ It is also customary, where the whole or part of the consider- ation has been paid in cash at the time of the conveyance, to ac- knowledge therein the receipt of so much as has been paid, and such acknowledgment or recital is, as between the parties, con- clusive of the fact that there was a valuable consideration, for the purpose of supporting the conveyance.'^ But it is not conclusive either upon the parties or upon third persons as to the amount of the consideration paid or due.'* Indeed, as to third persons hav- ing no connection with the deed, such a recital, even though in writing and under seal, is mere hearsay, and will not ordinarily be received in evidence at all.'^ § 940. III. Illegal Considerations in General. The law habit- ually seeks to discourage the doing of illegal acts or acts contrary to public policy, and, in the main, experience has proved that the best way to discourage them is to leave either guilty party without si-inte, § 41.^; 2 Min. Tnsts. 219, 807; 2 Tiffany, Real Prop. § 384 ; 2 Story, Eq. Jur. § 1199 : Watkins v. Robertson. 105 Va. 284 et seq., .5-4 S. E. 3.3, 5 L. R. A. (X. S.) 1194, 11.5 Am. St. Rep. 880 ; Gould v. Lyude, 114 Mass. 306; Feeney v. Howard, 79 Cal. .-|25, 21 Tae. 484, 4 L. R. A. 826, 12 Am. St. Rep. 162; Moore v. Jordan, 05 Miss. 229, 3 Soutb. 737, 7 Am St. Rep G41. 8 2 Trafton v. Hawes, 102 Mass. 541, 3 Am. Rep. 494. S3 2 Tiffany, Real Prop. §384; 2 Pomeroy, Eq. Jur. § 1030; Devlin, Deeds, § S34 ; McCrea v. Purmort, 16 Wend. (X. Y.) 460, 30 Am. Dec. 103 ; Finlay- sou V. Finlayson, 17 Or. 347, 21 Pac. 57, 3 L. R. A. 801, 11 Am. St. Rep. 836 ; Russ v. Mebius, 16 Cal. 350. "2 Mill. Insts. 689, 690; 1 Greenleaf, Ev. § 26, note (1); Harvey v. Alex- niKler, 1 Rand. (Va.) 219, 10 Am. Dec. 519; McC'rea v. Purmort, 16 Wend. ( X. Y.) 460, 30 Am. Dec. 103 ; H« 2 Min. Insts. 672. '■>T 2 Min. Insts. 672; 1 Januan, ^Yills, 35 et seq. ; 1 Redfleld, Wills, 50» et seq., .514 et seq. (724) Ch. 38] DEED COXRIDKRATIOX INVOLVIXn FRAUD.. §' 946 Transactions between attorney and client, parent and child, guardian and ward, and other persons connected by peculiarly con- fidential relations, are looked upon with jealousy, and if improp- er advantage is taken of the parental or tutorial authority, or of the influence belonging to the relation, the transaction will be invali- dated; and, as between guardian and ward, it is established that a deed of gift, or a release made by the ward soon after coming of age, and at the very time of accounting and delivering up the estate, or before delivering up the estate, without any settlement, is absolutely void, upon a principle of public policy, as construc- tively fraudulent, although, in truth, it be fair, and much more if the circumstances evince actual fraud. '* Moreover, trustees, agents, attorneys, and other persons occupying a fiduciary relation, are peremptorily inhibited from dealing for their own benefit touch- ing the subject matter committed to them; and any such transac- tions are regarded as constructively fraudulent, and voidable at the election of the beneficiary."" It should be observed, however, that where a legal capacity is shown to exist, that the party had sufficient understanding to com- prehend clearly the nature of the business, that he consented free- ly to the special matter about which he was engaged, and no fraud or undue influence is shown to have been used to bring about the result, the validity of the disposition cannot be impeached, however unreasonable, or imprudent, or unaccountable it may seem to oth- ers.^ § 946. C. Fraud in the Procurement or Inducement, Directed against Third Persons — (A) Catching Bargains with Heirs, Re- versioners and Other Expectants. Bargains made with or convey- ances taken from heirs, reversioners, or other expectants, in the lifetime of their ancestors or relations, from whom is the expecta- tion of the estate, tend to deceive and disappoint the relations from whom the expected property is to be derived.^ These have been generally mixed cases, compounded of all or several species of fraud; there being sometimes proof of actual fraud, which is always decisive. The proof of fraud is generally supplied by inference from the circumstances or condition of the OS 2 Min. Insts. 672, 673 ; 1 Story, Eq. Jur. § 317 et seq. ; 1 Jarman, Wills, 36 et seq., note (1). A similar principle is applicable to grants obtained by a person having a spiritual ascendency over another who is in a state of reli- gious delusion or extravagant excitement. 2 Min. Insts. 673 ; Norton v. Kelley, 2 Eden, 2S0; Hugeln v. Baseley, 14 Ves. 273. 9 9Ante, § 424 et seq. ; 2 Min. Insts. 245 ; 1 Story, Eq. Jur. § 311 et seq. 1 2 Min. Insts. 673. 2 2 Min. Insts. 698. (725) § 946 DEED — CONSIDERATION INVOLVING FRAUD. [Ch. 38 parties contracting — weakness on one side, and usury, or extortion taking advantage of weakness, on the other. The nature of the bargain, e. g., its unconscionableness, although there be no cir- cumvention, often detects the fraud. And in most cases have con- curred deceit and illusion practiced on other persons not privy to the agreement, as on the father or other relation from whom comes the expectation of the estate. The expectant has been induced to conceal his circumstances from those whose advice and encourage- ment might have tended to his relief, and also to his reformation ; and the ancestor being deceived to leave his estate, not as he de- signed, to his heir or family, but to the artful intriguers who have already divided the spoil. ^ In all cases of this sort, it is incumbent upon the party dealing with the expectant to establish, not only that he took no advantage, and was guilty of no direct fraud, but that he paid a full and ade- quate consideration, and that the contract is above all exception.* Indeed, the better opinion, in this country, at least, seems to be that an expectant heir or devisee has no interest in the ancestor's or testator's estate, during the latter's lifetime, that can be sold, incumbered or devised.^ In England this doctrine has been applied not only to expectant heirs, but also (with doubtful expediency) to reversioners and re- maindermen, dealing with property already vested in them, but not in possession, and, therefore, apt to be under-estimated by the necessitous, the improvident and the young.° But this English rule of policy, which deprives the owner of a vested remainder or reversion of the free alienation of his prop- erty, and, obliging him to forego any benefit which he might de- rive by negotiating a private sale thereof, constrains him to sell at public auction (so as to afford satisfactory proof of an adequate price), or to hold on to an unproductive reversion or remainder, perhaps till the decline of life, is not adapted to the usages or senti- ments of society in this country. The adult proprietor of a vested interest in property, whether in reversion or remainder, is not thus 3 2 Min. Insts. 698 ; 1 Story, Eq. Jur. § 334. 4 2 Mln. Insts. 698 ; 1 Story, Eq. Jur. § 336 ; Chesterfield v. Janssen, 2 Ves. Sr. l.-i." et seq., 1 White & Tud. Lead. Cas. Eq. 410. ^-Wheeler v. Wheeler, 2 Mete. (Ky.) 474, 74 Am. Dec. 421; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dee. 85, note. But in Indiana it has been held that he can do so with the consent of the ancestor. McClure v Raben 133 Ind. 507, 33 N. B. 275, 36 Am. St. Rep. 588. See Curtis v. Curtis, 40 Me! 24, 63 Am. Dec. Ora, 054, note. 6 2 Min. lusts. 698 ; 1 Story, Eq. Jur. § 337 et seq. ; Chesterfield v. Jans- sen, 2 Ves. Sr. 155 et seq. ; 1 White & Tud. Lead. Cas. Eq. 410, 411. (726) Ch. 38] DEED — CONSIDERATION INVOLVING FRAUD. § 947 to be reduced to a condition of pupilage, from regard to any such supposed rule of policy, or for the purpose of extending to him an ambiguous protection. All attempts thus to fetter the action of the owner by restricting his power' of alienation, really operate in- juriously to him. The doctrine of imputing fraud as a matter of law is not favored with us. The inquiry, in such cases as we are considering, should be whether in the particular case actual fraud existed. Inadequacy of price, youth, inexperience, indebtedness, distress, are circumstan- ces to be looked to and weighed in determining whether, in the particular instance, the bargain is so unconscionable as to demon- strate some gross imposition, circumvention, or undue influence ; and so to justify relief on the ground of fraud. In the absence of such proof of actual fraud, it is not incumbent on the purchaser of such an interest in the way of a reversion or remainder, more than in the case of property in possession, in order to make good the bargain, to show that a full and adequate consideration was paid.'' § 947. (B) Fraud Directed against Third Persons Generally. "Particular persons in contracts," says Lord Hardwicke in Ches- terfield V. Janssen,* "shall not only transact bona fide between themselves, but shall not transact mala fide in respect of other per- sons, who stand in such relation to either as to be affected by the contract, or the consequences of it." Hence clandestine agree- ments to return part of the portion of the wife, or provision stip- ulated for by the husband, to the parent or guardian ; or convey- ances or bonds taken as rewards for securing marriages ; or a se- cret agreement of a debtor compounding with his creditors, that if a certain one of them will sign the deed, he will pay him more than a ratable proportion of his debt — all these will be set aside in equity, as injurious to the third persons who are thereby respec- tively deceived." So a conveyance made by a feme sole, in contemplation of mar- riage, without the intended husband's knowledge, is deemed in fraud of his marital rights, and therefore voidable ; " and by parity 7 2 Min. Insts. 699 ; Xichols v. Gould, 2 Yes. Sr. 422 ; Griffith v. Spratley, 1 Cox, 383 ; Cribbins v. Jlurkwood, 13 Grat. (Va.) 507, 508, C7 Am. Dec. 775 : Watson Y. Smith, 110 X. C. 6, 14 S. B. 640, 28 Am. St. Rep. 665; Stott v. Fraiiey, 20 Or. 410, 26 Pac. 271, 23 Am. St. Rep. 135, note; Moody v. Wright, 13 Mete. (Mass.) 17, 46 Am. Dec. 713, note. s 2 Ves. Sr. 165, 1 White & Tud. Lead. Gas. Eq. 406, 407. 9 2 Min. Insts. 673, 674; Chesterfield v. Jaiissen, 2 Ves. Sr. 156, 1 White & Tud. Lead. Cas. Eq. 406, 407. loAnte, § 271; 2 Min. Insts. 674. This principle, however. Is subject to several qualifications. Thus it is admissible for the wife, in contemplatiou (727) § 948 DEED CONSIDERATION INVOLVING FRAUD. [Ch. 38 of reason, if a man seised in fee of lands should, just before his marriage, without the privity of the intended wife, convey the same, it deprives the wife of her dower therein, and is liable to be invalidated at her instance, as in fraud of her rights.^^ § 948. (C) Conveyances in Fraud of Creditors. The English statute of 13 Eliz. c. 5, enacted that any transfer of real or personal property which was made with the intent to hinder, delay and de- fraud the creditors of the transferror, should be absolutely void as to such creditors, saving only the rights of bona fide purchasers for a valuable consideration. The provisions of this statute have been adopted everywhere in this country, either by express stat- ute, or as part of the common law of the states. ^^ As between grantor and grantee, no conveyance is afifected by this rule; but, notwithstanding the fact that a conveyance may have actually passed the title to land into a grantee, a creditor of the grantor is enabled to levy his execution on the land in the hands of the grantee and cause it to be sold as the property of the gran- tor." No bona fide purchaser for a valuable consideration is afifected by the rule ; but neither the payment of a full price, nor actual ig- norance of the grantor's intent to hinder, delay, or defraud his creditors, will avail a grantee who purchases with imputed notice of his grantor's intent.^* § 949. Same — The Grantor's Intent. The law presumes that a man intends the natural consequences of his acts. Therefore, wher- ever a conveyance has the effect of hindering or delaying a cred- itor in collecting, by the ordinary legal processes, what the gran- tor owes him, the law conclusively presumes the conveyance to be in fraud of creditors, and therefore void as to them, unless the grantee is a purchaser in good faith for a valuable consideration.'^ And it is immaterial that the actual motive for the transfer is the of marriage, to convey her proiDerty withoat the husband's knowledge in order to secure a just debt, and even to provide for the children of a previous marriage. She may also convey her property to whom she will, if it be done before the marriage is contemplated, notwithstanding it may, in fact, occur soon after. Strathmore v. Bowes, 2 Cox, 28, 1 Ves. Jr. 22, 1 White & Tud. Lead. Cas. Eq. 395 ; Gregory v. Winston, 23 Grat. (Va.) 102. 11 2 Min. Insts. 674. 12 Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. 3.54, 33 L. Ed. 696. 13 1 Story, Eq. Jur. § 353; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687. 11 Blennerhasset v. Sherman, 105 U. S. 100, 26 L. Ed. 1080. 15 McDowell V. Steele, 87 Ala. 493, 6 South. 288; Fleischman v. Bowser, 02 Fed. 259, 10 C. 0. A. 370. (728) Ch. 38] DEED CONSIDERATION INVOLVING FRAUD. § 951 meritorious one of preserving it to be applied to the payment of the grantor's debts under circumstances more advantageous to his creditors. Thus a debtor may be threatened with executions at a time of general low prices, when a forced sale of his property would result in its sacrifice for an amount insufficient to pay his debts. Were he now to make any transfer of his property in order to pre- serve it until it could be sold to better advantage, with the full in- tention of applying it in whole to the payment of his creditors, it is a fraudulent transfer. ^^ But a transfer of property by a debtor to his creditor in pay- ment of a pre-existing claim is not necessarily fraudulent, although the transaction results in defeating the collection of their claims by other creditors. ^^ § 950. Same — The Form of the Transfer or Conveyance. It is immaterial what form of transfer a debtor adopts with the pur- pose or with the result of defrauding his creditors. The transac- tion may take the form of a straightout conveyance, of a mortgage or lien of any kind, of collusive legal proceedings,^** or even of a deed absolute on its face, intended as (and being actually as be- tween the parties) a mortgage. The last case affords a good il- lustration of the proposition that any transaction that has the ef- fect of deceiving creditors as to the amount of a debtor's prop- erty or the value of his interest therein is fraudulent. It is per- fectly permissible for a debtor to mortgage his property to secure a pre-existing debt. But suppose the mortgage take the form of an absolute deed; the creditors, being informed of this deed, are naturally led to believe that their debtor no longer has any interest or estate in this property left which they could subject to the pay- ment of their claims. The creditors are thus hindered and delayed, because they are misled into believing that their debtor has no in- terest left in the mortgaged property; whereas, in fact, he has an equity of redemption upon which they could have levied, had they known of it.^° § 951. Same — Grantee's Participation in Grantor's Fraud. If the grantee knows of the grantor's fraudulent intent, the payment of a valuable consideration will not validate the conveyance.^" Ac- 18 Brown v. Osgood, 25 Me. 505. 17 Preferential payments to creditors are permitted by the common law. Brooks V. Marbury, 11 Wheat. 78, 6 Ij. Ed. 423. 18 20 Cyc. 392. i»Lukins v. Aird, 6 Wall. 78, 18 L. Ed. 750; Campbell v. Davis, 85 Ala. 56, 4 South. 140 ; Neubert v. Massman, 37 Fla. 91, 19 South. 625. 20 Slagel V. Hoover, 137 Ind. 314, 36 N. E. 1099 ; Chandler v. Von Roeder, 24 How. 224, 16 L. Ed. 633. (729) § 952 DEED — CONSIDERATION INVOLVING FRAUD. [Oh. 38 tual knowledge is not, however, necessary on the part of the gran- tee. Knowledge may be imputed to him. And while a purchaser is always permitted to open negotiations under the presumption that he is dealing with an honest man,-^ nevertheless, if before the transaction is completed he learns of anything which would cause a man, of ordinary business prudence to pause and inquire, and inquiry would have led to a knowledge of the grantor's fraudulent intent, notice will be imputed to him with the same effect as if he had had actual knowledge.-^ § 952. Same — The V^ant of Consideration. As between the payment of one's debts and the performance of the most sacred natural obligations, the common law insists that the payment of debts must come first. ^^ All conveyances not based upon a val- uable consideration are termed ''voluntary," and are void as against the creditors of the grantor — at least, the existing creditors. The consideration need not, as matter of law, be adequate; but seri- ous inadequacy aifords an indication of a lack of good faith on the part of the grantee. It is a suspicious circumstance, which in- creases in significance the greater the discrepancy between price and value.^* It is a "badge of fraud."^^ § 953. V. Considerations Involving Mistake or Misapprehen- sion. In cases of plain mistake or misapprehension, though not the effect of fraud or contrivance, equity will rescind the conveyance, if the error goes essentially to the substance of the contract, so that the purchaser does not get what he bargained for, or the vendor sells that which he did not design to sell ; or if the circumstances do not demand the total rescission of the contract, the court will give relief by adjusting a compensation between the parties.^" The distinction chiefly to be here noted is between mistakes of *law and mistakes of fact. 21 Jackson v. Glaze, 3 Okl. 143, 41 Pac. 79. 22 Norwood V. Washington. 13C Ala. 657, 33 South. 869; Mayer v. Wil- kins, 37 Fla. 244, 19 .South. 632 ; Tantum v. Green, 21 N. J. Eq. 364 ; Shauer V. Alterton, 1.51 TJ. S. 607, 14 Sup. Ct. 442, 38 L. Ed. 286. 23Redfleld v. Buck, 35 Conn. 328, 95 Am. Dec. 241; Seward v. Jackson, 8 Cow. (N. X.) 406; Burton v. Le;-oy, 5 Sawy. 510, Fed. Cas. Xo. 2,217. 24 Martin v. White, 115 Ga. SCO, 42 S. E. 279; Bigelow v. Ayrault, 46 Barb. (N. Y.) 143 ; Willis v. Gattman, 53 Miss. 721. 2 5 li'or other badges of fraud, see 20 Oyc. 439 et seq. 26 2 Min. Insts. 699; Gaw. v. Huffmai;), 12 Grat. (Va.) 028. The student should note that in cases of trust, of mistake, of fraud, or contract, equity may entertain jurisdiction wherever the person is found within the state, nlthouf'h the lands lie beyond Its limits. Davis v. Morriss, 76 Va. 21. (730) Ch. 38] DEED CONSIDERATION INVOLVINGt MISTAKE. § 953' § 954. (I) Considerations Involying Mistakes of Law. The general doctrine is that ignorance or mistake of the law does not affect contracts or conveyances. If they are entered into in good faith, and are free from misapprehension as to facts, although un- der a mistake of the law, they are for the most part valid. ^' In respect, however, to the vendor's or vendee's ignorance in law of the title he proposes to convey or to acquire, a number of cases, both in England and in this country, establish that, notwithstand- ing the general doctrine, and although there may not appear to be any fraud, a court of equity will not refuse to give relief under cir- cumstances, by either rescinding the contract in whole or in part, or by otherwise decreeing compensation to one or other of the par- ties.^' § 955. (II) Considerations Involving Mistakes of Fact. Where an act is done or a conveyance executed under a mistake or ignor- ance of matter of fact, material to the transaction and an efHcient inducement thereto, the general rule is that a court of equity will relieve by setting the conveyance or act aside. Thus, if A. buys land of B., to which B. is supposed to have a good title, and it turns out that, in consequence of facts unknown alike to both parties, he has no title at all, equity will cancel the transaction, and cause the purchase money to be restored to A., putting both parties in statu quo.^' The mistake, however, must be made out by the clear- est and most satisfactory testimony; the burden of proof being on the complainant.'" Where there is a material mistake in the substance of the thing contracted for, so that the purchaser does not get substantially what he bargained for, and the seller parts with what he had no idea of selling the contract or conveyance ought to be vacated. To hold otherwise would to be to make a contract for parties, rath- er than to enforce one.^^ 2v2 Mln. lusts. 700; Zollman t. Moore, 21 Grat. (Va.) 313; Hunt v. Rhodes, 1 Pet. 15, 7 L. Ed. 27; Bank of U. S. v. Daniel, 12 Pet. 5.5, 9 L. Ed. 989. 28 2 Jlin. Insts. 700; 1 Story, Eq. Jnr. §§ 120 et sag., 126, note (1); Bing- ham V. Bingham, 1 Ves. Sr. 126 ; Lansdowne v. Lansdowne, 2 Jac. & Walk. 205 ; Hunt v. Rousmanier, 8 Wheat. 214, 5 L. Ed. .j89 ; Hunt v. Rhodes, 1 Pet. 15, 16, 7 L. Ed. 27 ; Brown v. Rice, 26 Grat. (Va.) 470 et seq. 29 2 Min. Insts. 700, SOI, et seq.; 1 Story, Eq. Jur. § 140 et seq. 30 2 Min. Insts. 701; Woolam v. Hearn, 7 Ves. 211, 2 White & Tud. Lead. Cas. Eq. 540, 547, et seq., 558 et seq. ; Henkle v. Assurance Co., 1 Ves. Sr. 317; Shelburn v. Inchiquin, 1 Bro. Ch. 338, 350; Major v. Ficklin, 85 Va. 737, 8 S. E. 715; Hudson Iron Co. v. Stockbrldge Iron Co., 107 JIass. 290; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 595, 630, 7 Am. Dec. 550. 31 2 Min. Insts. 701. (731) § 955 DEED — CONSIDERATION INVOLVING MISTAKE. [Ch. 38 But in respect to judicial sales the maxim "caveat emptor" ap- plies with considerable strictness. The court undertakes to sell only the title, such as it is, of the parties to the suit, and the pur- chaser must ascertain for himself whether the title is liable to im- peachment; and if he has just grounds of objection for want or defect of title, he must present them to the court before the con- firmation of the sale. Ordinarily, objections after confirmation come too late.'^ § 956. Effect upon a Deed, Validly Executed, of Matter Aris- ing Ex Post Facto — Discussion Outlined. Supposing a deed to have been in every respect validly executed, there are certain cir- cumstances whiqh, occurring after its execution, may avoid it, or at least impair its effect. Those may be enumerated as follows : (1) Erasure, interlining, or other alteration; (2) breaking off or defacing the seal; (3) delivering it up to be cancelled; (4) dis- claimer of title by the grantee; (5) disagreement of persons whose concurrence is necessary in order for the deed to stand. § 957. I. Effect of Erasure, Interlineation or Other Alteration — 1. In Case of Contracts Executed. An important distinction as to the effect of an erasure, interlineation, or alteration in a deed, is between conveyances or contracts executed on the one side, and contracts executory on the other. No erasure nor alteration in a conveyance, nor even the can- cellation thereof by mutual consent of the parties, can divest an estate already vested by the operation of the deed; for that would be in conflict with the statute of conveyances. But, the estate be- ing vested according to the original tenor of the deed, if the erasure or alteration makes it impossible to see what that was, and there is no extrinsic evidence to show it, such erasure or alteration may in that way be fatal to the title evidenced by the conveyance.^' The fact, however, that the deed contains immaterial interlinea- tions or alterations will not affect its value as evidence of title in an action for the land.^* § 958. Same — 2. In Case of Contracts Executory — A. Altera- tion by a Stranger. In respect to the erasure or alteration of con- tracts executory, the most material consideration is whether it were made by a stranger, in which case it is styled a spoliation, or 32 2 Min. Insts. 701. 33 2 Mln. Insts. 738; 2 Bl. Com. 309, note (22); McMurray v. Dixon, 105 Va. 005, 54 S. E. 481. See Gleason v. Hamilton, 138 N. Y. 353, 34 N. E. 288, 21 L. R, A. 210; Nickerson v. Swett, 135 Mass. 514. 3-i 1 Greenleaf, Ev. §§ 566, 507. (732) Ch. 38] DEED ALTERATION. § 959 by a party to the instrument, or one interested therein, when it is known as an alteration."^ The alteration made by a stranger to the instrument — that is, a spoliation — in no wise affects the validity of the instrument, pro- vided only the original tenor of it can be made to appear. The remedy upon the instrument thus changed may be either in a court of law or in equit}' ; the latter forum obtaining cognizance, because formerly the courts of law declined to allow the contents of a deed to be proved otherwise than by the deed itself, and because, also, it was often necessary to demand a discovery upon oath of the original tenor of the writing, and, independently of statute, a court of law has no power to coerce a discovery.^" § 959. Same — B. Alteration by Party to Contract or One Inter- ested. If the change be immaterial, or of such matter as the law itself would supply, and be made innocently, it does not affect the validity of the writing, which, however, is binding only according to its original terms and effect ; and, if they cannot be proved, the instrument can, of course, avail nothing. But where the change relates to a matter material, or although it be immaterial, where it appears to have been made with an ill intent, the writing is avoid- ed so far as it relates to what is executory. So far as it actually vests an estate, no subsequent alteration, by whomsoever made, or with what intent soever, can divest it, although, as already explain- ed, it may defeat the estate by reason of the failure of proof.'' Thus, where an alteration of the date of a bond in suit was made form 1878 to 1879, apparently without guilty intent on the part of either party, and not having the efffct of barring action on the bond through the operation of the statute of limitations, it was held to be an immaterial alteration, innocently made, and therefore to be overlooked.'* It should be observed that this doctrine is by no means confined to sealed instruments, but applies as well to all writings (including contracts to convey land). No party to any writing is to be allow- ed to tamper with it by any alteration, either material or made with a bad intent, without subjecting himself to the just penalty of thereby avoiding the instrument altogether, so far as its future ef- fect is concerned. And it must be remembered that it is a well- 35 2 Min. Insts. 738; 1 Greenleaf, Ev. § 565 et seq. 3«2 Min. Insts. 738; 1 Greenleaf, Ev. § 565 et seq. 37 2 Min, Insts. 7.38, 739; 1 Greenleaf, Ev. § 565 et seq.; Bashaw v. Wal- lace, 101 Va. 733, 45 S. E. 290. As to wliat is a material, and what an immaterial, alteration, see Woodvvorth v. Bank of America, 19 Johns. (N Y.) 391, 10 Am. Dec. 267 et seq., note. 88 Bashaw v. Wallace, 101 Va. 733, 45 S. E. 290. (733) § 959 DEHD ALTERATION. [Ch. 38 established principle that every endorsement or memorandum at- tached to the writing, with the knowledge of the parties, at the time of its execution, is as much a part of it as if it had been con- tained in the body of the instrument.^" It is an important question, where an erasure, interlineation, or alteration appears, whether it was made prior or subsequent to the execution of the writing. It seems to be the better opinion (in pursuance of the maxim, "Omnia rite acta prssumuntur") that the presumption is that it was made before the execution, if nothing appear to the contrary, such as a difference in the color of the ink, or in the handwriting, and the like. When any such circumstance of suspicion occurs, it must, in general, be explained, in order to make the writing available.*" The principle of erasure, etc., applies to the filling of blanks. Thus a blank filled after the paper is signed, without the consent of the party concerned therein, or his duly authorized agent, avoids the instrument. When the instrument is under seal, an agent to fill a blank must be empowered under seal, or by the personal pres- ence and assent of the party to be affected.*^ It is worth while to observe that a deed or writing may be con- sidered as an entire transaction, operating as to the different par- ties from the time of execution by each, but not perfect till the execution by all. Any alteration made in the progress of such a transaction still leaves the instrument valid as to the parties pre- viously executing it, provided the alteration does not affect their situation. Thus if, when A. executes the writing, there are blanks, which are filled up before B. executes it, but the filling up does not affect A., the obligation and effect of the writing as to A. is not thereby impaired.*^ It is usual and prudent, in order to obviate all suspicion and un- certainty, when any erasure, interlineation, or alteration is made in a deed or other writing, to note it as having been made before execution, at the foot of the deed, so as to be authenticated by the signature, or in the clause of attestation.*^ 30 2 Mln. Insts. 739. 40 2 Mill. Insts. 739; 1 Greenleaf, Ev. §564; 2 Th. Co. Lit 232, note (13) ; 3 Th. Co. Lit. 371, note (11); 2 Parsons, Cont. 228, note (a); Beamau v. Russell, 20 Vt. 205, 49 Am. Dec. 775 et seq., 782, note ; Slater v. Moore, 80 Va. 26, 9 S. E. 419. ■41 2 Mln. Insts. 739 ; Sheppard's Touchst. 54 ; Drary v. Foster, 2 Wall, 24, 17 L. Bd. 780; Upton v. Archer, 41 Cal. 85, 10 Am. Eep. 266. *2 2 Min. Iilsts. 740; 2 Bl. Com. 308, note (20); Doe v. Bingham, 4 B & Aid. 675. •4 3 2 Min. Insts. 740; 3 Washburn, Real Prop. (6th Ed.) § 2097. (734) Ch. 38] DEED CANCELLATION, § 961 § 960. II. Effect of Breaking Off or Defiacing the Seal. It was originally held that if the seal of a deed was broken off, or so de- faced that no sign of it could be seen (unless the party bound by the instrument did it), the deed was avoided; so that the avul- sion of the seal was a species of erasure or alteration, and was gov- erned in general by the same principles. The modern doctrine, however, is that if it appear that the seal has been affixed, and was afterwards broken off or defaced by accident, or by a stranger, the validity of the deed is not thereby affected. And an estate once vested is not divested by the destruction of the seal on the con- veyance, whosoever did it, or with whatsoever intent; but, as a seal is requisite to make the instrument a deed, it will be need- ful to show that there was once a lawful seal.** § 361. III. Effect of Cancelling the Deed. In this case, also, the distinction between executed contracts (or conveyances) and executory contracts is all-important. In the case of a conveyance, where the estate is once vested, the cancellation of the deed can- not divest it, because, as already explained, it would offend the statute of conveyances. *° And yet there may arise cases in which the destruction of the deed with the intent to revest the estate in ■ the grantor will practically have that effect, if coupled with other facts which would raise an estoppel against the grantee. Thus, if A. convey to B., who afterwards surrenders the deed with the request that A. destroy it, and executes a new conveyance to C, B. will be estopped to set up the fact that he ever owned the land and that his legal ownership never passed back to A.*^ But in the case of an executory contract, where the parties mu- tually agree that it shall be delivered up to be cancelled, that is, to have lines drawn over it in the form of lattice-work, or cancelli (though the phrase has long been used figuratively for any manner of obliteration or defacement), and it is cancelled accordingly or destroyed, the contract is avoided.*^ a 2 Jlin. Insts. 740 ; 2 Bl. Com. 308, note (21) ; Bolton y. Bishop of Car- lisle, 2 H. Bl. 263. But the doctrine of the avulsion of the seal in executory- contracts was relaxed at an earlier period than in the case of rasures, etc., it having been long admitted that the validity of the Instrument is not af- fected if it appears, or there is reason to presume, that the seal was torn off by accident, or by a stranger, or was destroyed by time. 2 Min. Insts. 741 ; 2 Bl. Com. 308, note (21) ; Sheppard's Touchst. 70. 46 2 Min. Insts. 741; 2 Bl. Com. 309, note (22); Doe v. Bingham, 4 B. & Aid. 672; Roe v. Archbishop of York, 6 East, 86; Bolton v. Bishop of Car- lisle, 2 H. Bl. 263 ; Grayson v. Richards, 10 Leigh (Va.) 57. 4 6 Commonwealth v. Dudley, 10 Mass. 403. See 3 Washburn, Real Prop. (6th Ed.) § 2182. 17 2 Min. Insts. 741 ; 2 Bl. Com. 308 ; Sheppard's Touchst. 70. (735) § 962 DEED DISCLAIMER BY GRANTEE. [Oh. 38 § 962. IV. Disclaimer of Title by Grantee. Where the convey- ance is by deed indented, as the grantee by executing the deed ac- cepts the estate, he cannot afterwards disclaim, although, of course, he may reconvey it. But in case of a deed poll it is said that, al- though the estate conveyed passes to the grantee independently of his assent, so that, if he does not choose to accept it, he must form- ally disclaim the title, yet he is not estopped so to do.** The distinction, above adverted to, between disclaiming the ti- tle, whereby the effect of the conveyance is avoided, and reconvey- ing the estate, which recognizes the previous conveyance as good and effectual, is sometimes of great practical importance; as, for example, where a condition or covenant is annexed to the grant. In that case, as we have seen, by accepting the estate, the grantee becomes personally obliged to perform the condition or covenant, notwithstanding the burden may exceed the benefit,*^ so that, in case of a reconveyance, the obligation, if third persons were con- cerned in it, would still remain, whilst in case of a disclaimer, the effect of the original deed being annulled, the grantee would be exonerated from all responsibility.^" § 963. V. Effect of Disagreement of Persons Whose Concur- rence is Necessary. Thus, at common law, if a husband, where a feme covert is concerned, or the wife herself after the coverture' is ended, disagrees to the conveyance, it is thereby avoided. ^^ In this country, however, in those states that have enacted statutes converting all the wife's property into her separate estate, this is no longer the law, but the wife only has such right to disagree to the conveyance as if she were unmarried, and the husband has no right at all to disagree to it on her behalf. So, if an infant, a lunatic or a person under duress, when these disabilities are removed, disagree to a conveyance, it is thereby avoided. ^^ + 8 2 Min. Insts. 741. 4»Ante, § 377. bo 2 Miu. lusts. .741, 742. 612 Jliii. lusts. 742; 2 Bl. Com. 309. 62Ante, § 871; 2 Min. Insts. G56, 742; 2 Bl. Com. 309. (73«) CHAPTER XXXIX. TITLE BY CONVEYANCE CONTINUED— III. THE SEVERAL SPECIES OF CONVEYANCE. § 964. Outline of Discussion. 965. Original or Primary Conveyances at Common Law. I. FeofCment. 906. II. Gift. 967. III. Lease. 908. IV. Grant. 909. V. Exchange. 970. VI. Partition. 971. Derivative or Secondary Common Law Conveyances. 972. I. Release. 973. Several Ways in AVhicli a Release may Enure or Operate — Enumeration. 974. 1. Release Enuring by Way of Passing a Right. 975. 2. Release Enuring by Way of Passing an Estate. 976. 3. Release Enuring by Way of Enlarging an Estate. 077. 4. Release Enuring by Way of Extinguishment. 978. 5. Quitclaim Deeds. 070. II. Surrender. 080. I'ossession of Surrenderor. 081. ' Estate of Surrenderee. 082. Privity of Estate between Surrenderor and Surrenderee. 983. Doctrine as to Livery of Seisin. 984. The Written Evidence of Surrender. 985. Doctrine of Surrender in Law. 986. Efitect of Surrender. 987. III. Confirmation. 988. Confirmation Operating to Make Sure a Voidable Estate. 989. Confirmation Operating to Enlarge a Particular Estate. 990. Requisites of a Confirmation. 991. IV. Assignment. 992. Mode of Assignment. 993. What may be Assigned. 994. Eights and Liabilities Arising out of the Assignment of a Lease. 995. V. Defeasance. 996. Conveyances Operating under the Statute of Uses. I. Conveyances Operating with Actual Transmutation of the Pos- session. 997. II. Conveyances Operating under the Statute of Uses without Ac- tual Transmutation of Possession. 998. 1. Conveyances Operating as a Bargain and Sale. 999. 2. Conveyance Operating as a Covenant to Stand Seised. 1000. 3. Conveyance by Lease and Release. 1001. Conveyances Operating under State Statutes. § 964. Outline of Discussion. Having in the preceding chap- ter explained the general nature of deeds, and more particularly of MiNOB & W.Real Prop.— 47 (737) § 964 CONVEYANCES. [Ch. 39 deeds of conveyance of landed property, we are now to consider the several species of conveyances of lands, together with their re- :spective incidents, of all of which species of conveyances the deed is the common instrument — by usage at common law and by posi- tive requirement under the English statute of frauds and the vari- ous statutes of conveyances. The main division of conveyances is into (1) conveyances oper- ating at common law ; and (2) conveyances operating under stat- utes. Common-law conveyances are in turn divided into original or primary conveyances, by means whereof the benefit or estate is created or first arises, not necessarily supposing any other pre- vious transaction touching the property transferred, and derivative or secondary conveyances, whereby a benefit or estate previously created is enlarged, restrained, transferred or extinguished. The original or primary common-law conveyances are (1) feoff- ment; (2) gift; (3) lease; (4) grant; (5) exchange; and (6) partition. The derivative or secondary common-law conveyances are (1) release; (2) surrender; (3) confirmation; (4) assignment; and (5) defeasance. The statutory conveyances, or conveyances operating under stat- utes, are (1) those taking effect by way of use under the statutes of uses, which embrace conveyances operating with actual trans- mutation of the possession, such as a feoffment, fine or recovery to A. to the use of B., and also those operating without transmuta- tion of the possession, including (a) conveyances by way of bar- gain and sale, (b) conveyances by way of covenant to stand seis- ■ ed, and (c) conveyances by way of lease and release; and (2) tconveyances operating under state statutes. In tabulated form, these various forms of conveyance, which will Idc discussed seriatim in the following sections, appear as follows : I. Common-Law Conveyances. A. Original or Primary Conveyances. 1. Feoffment. 2. Gift. 3. Lease. 4. Grant. 5. Exchange. 6. Partition. B. Derivative or Secondary Conveyances. 1. Release. 2. Surrender. 3. Confirmation. 4. Assignment. 5. Defeasance. <738) Oh. 39] CONVEYANCKS — FEOFFMENT, § 9Go II. Statutory Conveyances. A. Conveyances Operating under the Statute of Uses. 1. Conveyances Operating with Actual Transmutation of Posses- sion. 2. Conveyances Operating without Actual Transmutation of Pos- session. a. Conveyances by Bargain and Sale. b. Conveyances by Covenant to Stand Seised. c. Conveyances by Lease and Release. B. Conveyances Operating under State Statutes. § 965. Original or Primary Conveyances at Common Law — I. Feoffment. A feoffment is derived from the verb to enfeoff, feof- fare, or infeudare, to give one a feud ; and therefore feoffment is properly donatio feudi. It is the most ancient method of convey- ance, the most solemn and public, and therefore the most easily remembered by the public, and proved. It is applied to corporeal property alone, and as Lord Coke says "properly betokeneth a con- veyance in fee," although it is sometimes improperly used with ref- erence to estates of freehold merely, as for life. He that so gives, or enfeoffs, is called the feoffor, and the person enfeoffed is denom- inated the feoffee.^ The common law required no deed nor writing in order to con- stitute an effectual feoffment. Such a requirement would have been ill-suited to so illiterate a population as composed the Saxon and Norman communities ; nor was it made until so recently as the statute of frauds, etc., 29 Car. II, c. 3, §§ 1, 2, 3, (A. D. 1678), in England, to which the statutes of conveyances with us correspond.^ But mere words, whether contained in a deed or expressed oral- ly, do not suffice, at common law, to perfect the feoffment. There remains to be performed the indispensable ceremony of livery of seisin, without which the feoffee has but a mere estate at will. The word "seisin" imports the possession of a freehold, and the phrase ^'livery of seisin" signifies the actual delivery by the feoffor to the feoffee of the corporeal possession of the freehold of lands or tene- ments, which was held absolutely necessary to complete the dona- tion; so that livery of seisin is no other than the pure feudal in- vestiture or delivery to the grantee of the corporeal possession of the lands. ^ Although the feoffor may have no lawful estate in the premises, or a less one than the feoffment accompanying the livery specifies and purports to pass, yet such solemnity and importance is attach- 1 2 Mln. Insts. 744 ; 2 Th. Co. Lit. 332, 353 ; 1 Th. Co. Lit. 622 ; 2 Bl. Com. .309. 2 2 Min. Insts. 745. »Ante, § 133 et seq. (739) § 966 CONVEYANCES GIFT. [Ch. 39 ed by the common law to the ceremony of livery, that supposing the grantor to be in possession, the full compass of the estate des- ignated passes, liable to be .devested by action only, and not by entry. Hence wrongful conveyances thus sanctioned by livery are known as tortious conveyances, because they are liable to be in this manner perverted so as to work a tort or wrong to the true owner.* § 966. II. Gift. The conveyance by gift (donatio) is properly applied to the creation of an estate tail, as feoffment is to that of a fee simple, and lease to that of an estate for life or for years. It differs in nothing from a feoffment but in the nature of the estate passing by it ; for the operative words are the same, namely, "do" or "dedi"; and gifts in tail, like all estates of freehold, are equally imperfect without livery of seisin as are feoffments in fee simple. And this is the only distinction which Littleton seems to take when he says : ° "It is to be understood that there is feoffor and feoffee, donor and donee, lessor and lessee," namely, as he explains, that feoffor is applied to a feoffment in fee simple, donor to a gift in tail, and lessor to a lease for life or for years, or at will. In com- mon acceptation, gifts are not unfrequently confounded with grants, presently to be mentioned." § 967. III. Lease. A lease is a conveyance of lands or tene- ments (usually in consideration of a rent or other annual or peri- odical recompense) for life, for years or at will, but always for a less time than the lessor hath in the premises ; for if it be for the grantor's whole interest, supposing the grantor to have an estate for life or years, it is more properly an assignment (one of the sec- ondary conveyances) than a lease. ^ The subject of leases has been fully discussed heretofore in treat- ing of estates for years. ^ § 968. IV. Grant. A grant is the regular method, by the com- mon law, of transferring the property of incorporeal hereditaments, or of things whereof, from their nature, livery cannot be had. For which reason, as all corporeal hereditaments, such as lands and houses, are at common law said to lie in livery, so the others, as commons, rents, ways, franchises, remainders, reversions, etc., are said to lie in grant. The operative technical words of a grant, are "dedi et concessi," hath given and granted : but any other words that show the intention of the parties will have the same effect,. ^Ante, § 196. 5 i Th. Co. Lit. 022. 6 2 Mill. Insts. 749, 750 ; 2 Bl. Com. .310, 317. 7 2 Jliii. Insts. 750, 7.51 ; 2 Bl. Com. 317 ; 2 Th. Co.- Lit. 403, note (A). sAnte, §§ 315 et seq., 400 et seq. (74Q) Cli. 39] CONVEYANCES — GRANT. § 968 such as aliene, limit and appoint, bargain and sell, etc. Even v^rhere A. granted and agreed that, in consideration of a certain rent, B. should have a way over his lands, it was held to be a grant of a right of way, and not a mere covenant for enjoyment." A feoffment might at common law be made by parol only, the operative ceremony designed to give certainty and notoriety to the transaction b^ing livery of seisin; but a grant required a deed always, even at common law, a deed (as livery is impossible) af- fording the only sufficient evidence of what was done.'^" Grants need no consideration of value or of blood to give them effect as between the parties; and, when made appHcable to the transfer of land (as they have been by statute), they may for that reason be effectual in creating ulterior limitations to persons not in being or not ascertained, which might fail if they were created by bargain and sale or covenant to stand seised, as being outside of the considerations which ought to support them.^^ At common law, as we have seen, no freehold estate in corporeal property can be created to commence in futuro for two reasons : (1) That the freehold can pass only by livery of seisin, which is incompatible with any but an immediate estate in presenti ; (2) that if it were allowed, there would be no one to perform mean- while the feudal services, or if need were, to sue or be sued for the subject. That this last reason of policy was the more operative is demonstrated by the fact that a grant of a freehold estate in rents, or other incorporeal hereditaments, already in esse, or cre- ated, to commence in futuro, is void at common law, although, of course, no livery is required or is possible, whilst an original grant of a freehold estate in a rent, etc., created de novo, may be made to begin in futuro, for no stranger can have occasion to sue, nor any one to be sued, for any rent, etc., thus newly created. ^^ The operation of a grant at common law is materially different from that of a feoffment ; for, as we have seen, a feoffment by force of the livery operates immediately upon the possession, without regard to the actual estate or interest of the feoffor, but a grant only operates on the estate of the grantor, and will pass no more than the grantor is by law enabled to convey. Hence a grant, though tortious, can never operate to produce a forfeiture, as a feoffment does. This rule is conjectured to have arisen from the 9 2 Min. Insts. 777, 778 ; 2 Bl. Com. 317 ; Holmes v. Sellers, 3 Lev. 305. 10 2 Mln. Insts. 778; 2 Th. Co. Lit. 356. But a grant— that Is, a deed- Is just as necessary for the transfer of an estate for years in an incorporeal hereditament as it is for a freehold. 11 2 Min. Insts. 778. 12 2 Min. Insts. 778, 779. (741) § 969 CONVBXANCES — EXCHANGE. [Ch. 319 circumstance that, a grant being always by deed, the grantee's es- tate might be known by inspection of the deed, and so it was not needful, in order to protect the interests of purchasers, to regard more as passing than the grantor possessed and could really give. However, another reason, at least as satisfactory, is suggested by Gilbert, C. B., namely, that a grant is a secret conveyance, and ought not to be allowed the same extensive operation as a feoff- ment, with its notorious livery of seisin.^' § 969. V. Exchange. This term does not signify mere recip- rocal conveyances. An exchange is a single conveyance, contain- ing a mutual grant of equal interests in lands, the one in considera- tion of the other. The word "exchange" is so individually requisite and appropriated by law to this case that the conveyance without it cannot operate as an exchange. It can be supplied by no other word, nor expressed by any circumlocution. The estates exchang- ed must be equal in quantity — not of value, for that is immaterial, but of interest, as fee simple for fee simple, life estate for life es- tate, and lease for years for lease for years, and the like ; and in this aspect an estate in joint tenancy is esteemed equal to, and is, therefore, exchangeable with, a tenancy in common. The exchange may be of things that lie either in grant or in livery, and they may be exchanged, the one kind for the other. But even in the exchange of freeholds in corporeal property, no livery of seisin is necessary to perfect the conveyance. Entry, however, must be made on both sides; for if either party die before entry the exchange is void for want of sufficient notoriety, except that if one has entered, he shall not first begin to avoid the transaction. There is incident to an exchange, tacitly implied in the word, a condition and a warranty. By virtue of the condition, if either party be evicted from any part of the land he receives by defect of the other's title, he may re-enter upon his own land and avoid the exchange in toto. And by virtue of the warranty (which is an ancient warranty, and not a modern covenant of title), upon a like eviction, he may vouch and recov- er over of the other party so much of his own land (the warranty applies to no other) as is equal in value to what he has lost.^* Lord Coke enumerates five elements as necessary at common law to the perfection of an exchange, namely:^" (1) That the estates given be equal ; (2) That the word escambium, exchange, be used; 13 2 Min. Insts. 779; Gilbert, Ten. 122; 2 Th. Co. Lit. 402, note (Q, 1). 14 2 Min. Insts. 781 ; 2 El. Com. 323 ; 2 Tli. Cci. Lit. 448, note (G). ' 16 2 Til. Co. Lit. 446; 2 Min. Insts. 781. (742) Ch. 39] CONVEYANCES — DERIVATIVE AT COMMON LAW. § 971 (3) That there be an execution by entry or claim in the life of the parties; (4) That if it be of things that lie in grant, it must be by deed indented; (5) That if the lands be in several counties, there ought to be a deed indented; or if the things lie in grant, albeit they be in oac county. It is to be observed that there can be but two distinct parties to an exchange as intimated by Littleton; ^^ but there may be any number of persons, so they constitute only two parties in interest. Thus, as we have seen, two or more joint tenants may exchange with two or more tenants in common,^'' or a wife may unite with her husband on one side to exchange lands with another person or persons on the other. And if the deed of exchange omits the name of the grantee of one of the parcels of land, the court may supply the omission and give effect to the deed, if, on inspection of the deed, enough shall appear to show in whom the title to that parcel vested.^* § 970. VI. Partition. At common law, as between joint ten- ants and tenants in common, a partition is a conveyance, and in the case of joint tenants must, at common law, be evideiiced by a deed; livery of seisin being as to them mutually impracticable. In the case of tenants in common, it must be evidenced by livery of seisin, in case of freehold. If the estate be less than freehold, it is believ- ed that tenants in common may make partition by parol. ^^ But by the English statute of frauds, 29 Car. II, c. 3, §§ 1, 2, 3, if the estate to be partitioned is for more than three years, it must be by deed or writing; and in the United States it is regulated by the statutes of conveyances. As between coparceners, however, a partition is not at common law deemed a conveyance at all, for it is said it makes no degree in deducing title, since the partition between coparceners was at common law compulsory, and therefore might be made by parol and without livery on either side.^° § 971. Derivative or Secondary Common- Law Conveyances. Secondary or derivative conveyances are so called, as we have seen, because they suppose some prior transaction touching the same subject between the same parties, or by one of them, or, as Black- stone says, presuppose some other. conveyance precedent, and only 16 2 Th. Co. Lit. 446; 2 Min. lusts. 782. 17 2 Min. Insts. 782; 2 Th. Co. Lit. 447, note (8). isLagorio v. Dozier, 91 Va. 503, 504, 22 S. B. 239. 19 2 Bl. Com. 324. 202 Min. Insts. 783. (743) § 971 CONVEYANCES — DERIVATIVE AT COMMON LAW. [Oh. 39 serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance.^"^ The derivative or secondary conveyances are : (1) Release; (2) surrender; (3) confirmation; (4) assignment; (5) defeasance. § 972. I. Release. A release, in the most general sense, is the discharge of a man's right, virhether it be of his right to actions, personal, real, or mixed, or of the right he has in lands or tene- ments. "Releases," says Littleton, "are in divers manners, viz. : Releases of all right which a man hath in lands or tenements, and releases of actions, personal and real, and other things." ^^ It is with releases in the former of L,ittleton's senses, namely, as a mode of conveyance of rights in lands or tenements, that we have now to do. In Ihis sense, a release is defined to be a discharge or a conveyance of a man's right in lands or tenements to another that hath some former estate therein. ^^ Brief as is Littleton's treatise on Tenures, he illustrates the na- ture of the release by a form : "Releases of all the rights which men have in lands or tene- ments, etc., are commonly made in this form or to this effect : "Know all. men by these presents, that I, A. of B., have remised, released, and altogether from me quitclaimed to C. of D., all the right, title, and claim which I have, or by any means may have, of and in one messuage, with the appurtenances, in F.," etc. Upon which Coke's comment is : "Here Littleton showeth prec- edents of releases of right; and precedents doth both teach and il- lustrate, and therefore our student is to be well stored with prec- edents of all kinds." =* § 973. Same — Several Ways in Which a Release may Enure or Operate — Enumeration. Releases, as conveyances of land, or trans- fers or 'discharges of rights therein, in respect to their operation, are divided at common law into four several sorts, viz. : (1) Re- leases that enure by way of passing a right — de mitter le droit; (2) releases that enure by way of passing an estate — de mitter Testate ; (3) releases that enure by way of enlarging an estate^ ■d'enlargir Testate; and (4) releases that enure by way of extin- guishing a right — d'extinguisher le droit; " to which may be add- ed (5) a more modern kind, known as a quitclaim deed.^^ 21 2 Bl. Com. 324 et seq. ; ante, § 964. 22 2 Th. Co. Lit. 451 ; 2 Mill. Insts. 783. 23 2 Mln. Insts. 783; 2 Bl. Com. 324. 2 4 2 Th. Co. Lit. 452; 2 Min. Insts. 784. 26 2 Min. Insts. 784; 2 Bl. Com. 324, 325; 2 Th. Co. Lit. 451, note (A), 459 et seq. 28 Post, § 978. (744) Ch. 39] CONVEYANCES — RELEASE PASSING ESTATE. § 975 § 974. Same — 1. Release Enuring by Way of Passing a Right. Releases are said to enure by way of passing a right (de mitter le droit), where nothing but the bare right passes, of which the most frequent instance is that of disseisee to disseisor. In a release of this kind no words of limitation are requisite, even at common law; for if made for a daj-, or an hour, it is as strong as if made to the releasee and his heirs forever. But it is indispensable that the releasee should be in possession, either of the land, or of a rever- sion or remainder therein; and that not of a term of years, but of a freehold, albeit it be a wrongful one, as in case of the disseisor. The lessee for years is only the bailiff of the freeholder, on whom the entry and action must be, and the latter only therefore is ca- pable of receiving a release of the right. ^^ But no privity is req- uisite for such a release, as it is in case of a release enuring by way of enlargement.^^ Hence a disseisee may release his outstanding right to the disseisor's tenant for life.^^ The common law requires that the releasee should have posses- sion of the land, or at least of an undivested right therein, by way of reversion or remainder, in conformity with that ancient maxim of the law which forbids a right of entry, or a chose in action, to be granted or transferred to a stranger, whereby, says Lord Coke, "is avoided great oppression, injury, and injustice." '" § 975. Same — 2. Release Enuring by Way of Passing an Estate. When two or more persons become seised of the same estate by a joint title, either by contract or descent, as joint tenants or co- parceners, and one of them releases his right to the other, such re- lease is said to enure by way de mitter Testate, of passing an es- tate; for where two several persons come in by the same feudal con- tract, one of them may discharge to the other the benefit of such contract by a release, because no notoriety is needful, for there was a sufficient notoriety in the prior feudal contract. Thus, two co- parceners come into one entire feud descending from their ancestor, and therefore they may release privately to each other without any notoriety, because they take by the former descent, which estab- lished them in possession. But since coparceners do also transmit distinct estates to their children, they may also pass their estates by distinct feoffments. But joint tenants can only pass their es- 27 2 Jlin. Insts. 784, 7S.j ; 2 Th. Co. Lit. 459 et seq., note (W) ; Gilbert, Ten. 54. 2 8 Post, § 976. And of course no livery of seisin is required, since the re- leasor is not in possession. 2 9 2 Th. Co. Lit. 464, 465 ; 2 Min. Insts. 785. so 2 Th. Co. Lit. 464, 113, note (K, 3). (745) § 975 CONVEYANCES RELEASE PASSING ESTATE. [Gh. 3&' tates to one another by release, for they all come in by the first feudal contract ; and therefore a second feoffment cannot give any further title or notoriety, because every person is supposed to be in by his elder title, which, in the case of joint tenants, is the original feoffment, so that a second feoffment would be useless. In releases that enure by way of passing an estate, privity of estate, as already explained, is necessarily supposed ; but words of inheritance are riot necessary, for the parties are not in by the release, but by the orig- inal feudal contract, which passes an inheritance to all of them, and the release only discharges the right of one of them.^^ One tenant in common cannot release to his companion, because they have distinct freeholds, but the}- must, at common law, pass their estates by feoffment and livery of seisin ; for as their estates were, or may have been, created by different acts and different liveries, they must also convey to each other by distinct liveries. ^^ § 976. Same — 3. Release Enuring by Way of Enlarging an Es- tate. Releases enure by way of enlargement of an estate when the possession and inheritance are separated for a particular time; and he who has the reversion and inheritance releases all his right and interest in the lands to the person who has the particular estate. Such releases are said to enure by way of enlargement, and to be equal to an entry and feoffment, and to amount to a grant and at- tornment, and no livery is possible, at least if the releasee already have a freehold estate. ^^ That a release may operate by way of enlargement, at common law, three circumstances are requisite : (1) That the releasee should have a vested estate in possession ; (2) that the releasor should have a vested estate in reversion or remainder, expectant mediately or immediately, upon the estate of the releasee ; (3) that there should be a privity of estate between the releasor and the re- leasee.^* The instances of such releases show that it is not sufficient that the releasee should have a mere inchoate executory interest, as an interesse termini, or a contingent remainder, or any other executory and contingent interest, nor that he should have a mere right or title of entry, as a lessee for life, after he has been disseised, or a lessee for years, after he has been ousted, and while his interest re- mains a mere right or title of entry. But a release may be made to 312 Min. Insts. 7SG ; Gilbert, Ten. 72 et seq. ; 2 Th. Co. Lit. 514, note (T, 3). 82 2 Min. Insts. 786 ; Gilbert, Ten. 74. 33 2 Min. Insts. 787: 2 Th. Co. Lit. 499, note (Z, 2). 34 2 Min. Insts. 787; 2 Tli. Co. Lit. 499, note (Z, 2). (746) Oh. 39] CONVEYANCES RELEASE EXTINGUISHMENT. § 977 a tenant at will or by elegit, or to a lessee after he has made an un- derlease for years ; but not to a tenant by sufferance, nor to a tres- passer in possession.^' There must subsist, between releasor and releasee, the relation of lessor and lessee, or of particular tenant and remainderman or reversioner, so that there may be a privity of tenure between them. And for the purpose of this doctrine the assignee or representative of the lessee stands in the place of the lessee ; and the assignee or representative, whether heir or devisee, of the reversioner, stands in the place of the reversioner; and the ability of making, and ca- pacity of receiving, such enlargement by release continues, although the lessee, etc., or his assignee, create a particular estate derived out of his own estate ; and although the reversioner create a par- ticular estate, which is interposed between the interest of the par- ticular tenant and the reversion ; for, notwithstanding such particu- lar estates, there is a continuing privity between the lessee or his assignee, on the one hand, and the reversioner or remainderman, or his assignee, on the other. But it should be observed that an estate created out of a particular estate is not, during such particular es- tate, capable of enlargement by release of the remainder or re- version expectant on such particular estate, because in such case there is no privity. The material rule applicable to the subject seems to be that the particular estate, the remainder or remainders, and the reversion, are all parts of the same estate.^" Releases which operate by enlargement of estate require, at com- mon law, the same technical words of limitation as feoffments or grants.^' § 977. Same — 4. Release Enuring by Way of Extinguishment. A release enures by way of extinguishing a right where it destroys the right, instead of passing anything to the releasee. It operates thus because, for some reason, it cannot in law operate to pass what it purports to release, and it is therefore construed, according to the maxim, "Ut res valeat magis quam pereat," to extinguish the right which it cannot transfer.^* Thus, if a tenant for life is disseised, and the lessor releases the reversion to him in fee, the release cannot at common law pass the reversion, because the releasee is not in possession; but ut res valeat, it operates to extinguish it and the rent along with it.*° 35 2 Min. Insts. 787; 2 Th. Co. Lit. 499, note (Z, 2), 503 et seq. 36 2 Min. Insts. 787, 788; 2 Th. Co. Lit. 499, note (Z, 2) ; 2 BI. Com. 1G4. 87 2 Min. Insts. 788. 3 8 2 Min. Insts. 788. 39 2 Min. Insts. 788; 2 Th. Co. Lit. 389' et seq., 493, note (R, 2). So, also, where a landlord releases the rent to his tenant, the latter cannot at once (747) § 977 CONVEYANCES RELEASE EXTINGUISHMENT. [Oh. 39 A married woman's release of her contingent dower interest by uniting in her husband's deed or contract to convey,*" or the re- lease of a contingent remainder by the remainderman to one in pos- session/^ are instances of this sort of release; and so is the re- lease of a power of appointment.*^ § 978. Same — 5. Quitclaim Deed. The quitclaim deed, as used in this country, is a development of the common-law release, having acquired its name from one of the words commonly used in such instruments/^ It is used sometimes in cases where the common- law release would operate by way of enlarging the estate, and sometimes where such release would enure by way of passing a right. The quitclaim deed purports to convey merely whatever title to the land the grantor may have, and its use excludes any im- plication that he has a good title, or, indeed, any title at all.** Hence it contains no covenants of title, and in Virginia, as in some of the other states, its employment is deemed in itself notice to the purchaser of a possibly defective title, and puts him upon inquiry, so that he cannot claim to occupy the position of a bona fide purchaser,*"* though the better view seems to be that this con- clusion is not justified by the purpose of the language of the quit- claim deed.*° The quitclaim deed has an advantage over the common-law release in that it is not necessary for the former that the grantee be in possession.*' both pay and receive it, aud so the release can pass nothing, but It extin- guishes the rent. 2 Min. Insts. 788. *oAnte, § 283. ^lAnte, § 658. *2 Post, § 1061. •isAnte, § 972. 44 2 Tiffany, Real Prop. § 377 ; City and County of San Francisco v. Law- ton, 18 Cal. 4(i5, 70 Am. Dec. 187; Garrett v. Christopher, 74 Tex. 453, 12 S. W. G7, l.j Am. St. Rep. 850 ; Kerr v. Freeman, 33 Miss. 292. 4 6 Virginia & T. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S. E. 420; Gar- rett V. Christopher, 74 Tex. 454, 12 S. W. 67, 15 Am. St. Rep. 850; Peters V. Cartier, 80 Mich. 124, ir, N. W. 73, 20 Am. St. Rep. 508 ; Steele v. Sioux Valley Bank, 79 Iowa, 339, 44 N. W. 564, 7 L. R. A. 524, IS Am. St. Rep. 370; Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243; 2 Tiffany, Real Prop. § 482. 46 2 Tiffany, Real Prop. § 482 ; Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. 426, 37 L. Ed. 350; Brown v. Banner Coal & Coal Oil Co., 07 111. 214, 37 Am. Rep. 105; Fox v. Hal], 74 Mo. 315, 41 Am. Rep. 316; Chapman v. Sims, 53 Miss. 154; Nidever v. Ayers, 83 Cal. 39, 23 Pac. 192. But, even in states where the grantee In a quitclaim deed is himself charged with notice of defects, a purchaser from him for value is not so charged, for then the occurrence of one quitclaim deed in the chain of title would render 47 2 Tiffany, Real Prop. § 377 : Spauldiug v. Bradley, 79 Cal. 449, 22 Pac. 47 ; Eerr v. Freeman, 33 Miss. 292. (748) Ch. 39] CONVEYANCES — SDERENDBR. § 981 § 979. II. Surrender. A surrender (sursumredditio), or render- ing up, is of a nature directly opposite to a release ; for as a release operates by the transfer or discharge of a right, usually to one in possession of the land, so a surrender is the yielding up of the pos- session to him who has the outstanding right. Thus, if the landlord relinquishes his reversion to his tenant for life or years, it is a re- lease (operating by enlargement) ; whilst if tenant for life or years gives up his possession to the landlord, who has the reversion, it is a surrender.** A surrender is defined to be a yielding up of the possession of an estate for life or years to him that hath the immediate reversion or remainder, wherein the particular estate may merge or drown, by mutual agreement between them.**" The proper words of a surrender are "surrender, grant, and yield up," but any form of words by which the intention of the parties is sufficiently manifested will operate as a surrender. Thus, if lessee for years "remise, release, discharge, and quitclaim" to lessor his right, title, and interest in and to the lands, or if lessee for life "leases" to lessor for lessee's life, it will amount to a surrender.^" § 980. Same — Possession of Surrenderor. The person who sur- renders must be in possession. Hence a tenant for life disseised, or a tenant for years ousted, cannot surrender to his lessor before re-entry, because he has nothing but a right. So, & lessee for years who has never entered, and has, therefore, only an interesse ter- mini, cannot surrender; nor can a widow entitled to dower, before her dower is assigned. An estate at will is also not surrenderable ; but that seems to be because any act of surrender is regarded aS being more fitly construed to be a determination of the will.^^ § 981. Same — Estate of Surrenderee. The person to whom the surrender is made must have a greater estate immediately in re- version or remainder, in which the estate surrendered may merge; that is, it must be in law greater, as a reversion and remainder are always deemed to be, in comparison with the particular estate. Thus, a lessee for years may surrender to him who has the re- the title practically unmarketable. 2 Tiffany, Real Prop. § 482; Sherwood V. Moelle (C. C.) 36 Fed. 478, 1 h. R. A. 797; Meikel v. Borders, 129 Ind. 529, 29 N. E. 29 ; Winkler v. Miller, 54 Iowa, 476, 6 N. W. 698. 48 2 Min. Insts. 789. 49 2 Min. Insts. 789; 2 Bl. Com. 328; 2 Th. Co. Lit. 651. 50 2 Min. Insts. 789; 2 Th. Co. Lit. 551, note (A); Smith v. Mapleback, 1 T. R. 441 ; Scott v. Scott, 18 Grat. (Va.) ir,0. 512 Min. Insts. 789, 790; 2 Th. Co. Lit. 554, note (D) ; 2,B1. Com. 320. But the possession of a sublessee is the possession of the lessee. 2 Min. Insts. 790; post, § 981. (749) 1 982 CONVEYANCES SUEKENDER. [Oh. 39 version only for years, even though the lease be for several years, and the reversioner has it for only one, or a less term still. Hence, also, before a lessee enters, having only an interesse termini, his surrender to the lessor is void as a surrender, not only because the lessee has no possession, as we have seen, but because the lessor has no reversion. The reversion or remainder, it will be observed, must be immediate. Thus, if A., lessee for thirty years, demise to B. for ten, B. cannot surrender to the original lessor, the owner of the fee simple, because the reversion is not immediate; but if A. surrender his lease to his lessor, the reversion of the latter being then immediate, B. may surrender to him.^^ § 982. Same — Privity of Estate between Surrenderor and Sur- renderee. A privity of estate between the parties is essential, for else there would be no immediate reversion or remainder in which the estate surrendered might merge. Thus, if tenant for thirty years make a lease for ten, and both join in a surrender to the rever- sioner in fee, the surrender is good for both the estates, and yet, as we have seen, the lessee for ten years could not surrender by him- self, for want of privity; but when the other joins with him, his surrender shall be taken in law to precede, and that of the lessee for ten years to follow, which shall then be good.^^ § 883. Same — Doctrine as to Livery of Seisin. Livery of seisin is not, at common law, necessary to the surrender of a free- hold, nor is entry on the part of the surrenderee to the surrender of a term; for there is a privity of estate between the parties, their several interests being indeed parts of the same estate, and, livery or entry having been once made at the creation of it, there is no need of it as between the parts afterwards. ^^ A surrender is perfected by the bare grant in the way of sur- render; for although the assent of the surrenderee is necessary to impart mutuality to the transaction, yet that consent is presumed, as it is in all conveyances (seeing that they import a benefit), until the contrary appears. ^^ § 984. Same — The Written Evidence of Surrender. The com- mon law requires no writing to make a surrender good. Like all other conveyances where an actual and visible possession may be transferred, it may be by parol. But since the statue of frauds and 52 2 Min. Insts. 790 ; 2 Th. Co. Lit. 552, note (B), 511, note (Q, 3) ; 2 El. Com. 326. 53 2 Min. Ipsts. 790; 2 Tli. Co. Lit. 554, note (D) ; 2 Plowd. 541. S'l 2 Min. Insts. 790 ; 2 Tli. Co. Lit. 551, note (A) ; 2 Bl. Com. 326. 55 2 Min. Insts. 790, 791; 2 Th. Co. Lit 551, note (A); Slieppard's Touclist. 301, note (3). (750) Ch. 39] CONVEYANCES SURRENDER. § 985 perjuries in England, 29 Car. II, c. 3, §§ 1, 2, 3, and the correspond- ing statues in this country the policy of having a deed or note in writing as evidence of surrenders, and also of assignments, has in all cases been insisted on. Hence the mere cancellation of a lease for life, or for a term exceeding five years, with intent ever so em- phatically declared, does not operate a surrender, nor revest the land in the lessor.^® § 985. §ame — Doctrine of Surrender in Law. A surrender may be either in deed, that is, by express words, or it may be in law. A surrender in law is where, by the legal effect of the transaction between the parties, a surrender must have been in their contem- plation, and is, therefore, implied, being as Lord Coke expresses it, "wrought by consequent, by operation of law." ^'^ Thus, if the lessee for life or years, or the assignee of either, takes a new lease of the reversioner, whether for a greater or shorter term than before — to himself alone, or to himself and another — in the same or in another right; in short, wherever the first lease and the second cannot subsist together, there is a surrender in law of the first, for the parties, by making a contract of as high a nature for the same thing, must have tacitly consented to dissolve the former, for without the dissolution of that the lessor could not grant the interest which the second lease purports to pass and the lessee has accepted. Hence, in cases where no such incompatibility exists between the continuance of the first lease and the second transaction, but where they may stand together, there is no sur- render in law. If, therefore, the lessee only license the lessor to enter upon the land in order to make a feoffment thereof, or for any specific purpose, not inconsistent with the continuance of the lease; or if the .second lease be of another, and not the same thing as the first, as where the first lease is of the land, and the second of a rent or other profit out of the land'; or if the second lease is not to begin until the first ends ; or if the second lease is not merely voidable, but void — in all these cases there is no surrender in law.^* 6 6 Ante, § 957; 2 Min. Insts. 791; 2 Tli. Co. Lit. 551, note (A); Grayson y. Richards, 10 Leigh (Va.) 61. 67 2 Min. Insts. 791 ; 2 Th. Co. Lit. 555. 58 2 Min. Insts. 791, 792; 2 Th. Co. Lit. 554 et seq., notes; Sheppard's Touchst. 301 ; Prestons v. McCall, 7 Grat. (Va.) 121. It is worthy of observa- tion that a surrender In law is in some cases of greater force than a sur- render in deed. Thus, an interesse termini may be surrendered in law, by the lessee's accepting another lease from the lessor, whilst, as we have seen, it cannot be conveyed by surrender in deed, for want of possession in the lessee and of the reversion in the lessor. 2 Th. Co. Lit. 554; 2 Min. Insts. 792. (751) § 983 CONVEYANCES SURRENDER. [Ch. 39 * , § 986. Same — Effect of Surrender. Upon surrender, there is not only a merger/* but all stipulations and covenants contained in the lea^e surrendered, must come to an end with the lease it- self; and this is alike true, whether it be a surrender in law or in deed.'"' But covenants already broken are, of course, not discharged by the surrender; nor are grants of interest, or charges created by the lessee during the continuance of the lease, in any wise af- fected."^ § 987. III. Confirmation. A confirmation is defined by Lord Coke to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a par- ticular estate is increased."^ An instance of the first branch of the definition is, if tenant for life leaseth for forty years. Here the lease for years is voidable by him in reversion, in case the tenant for life should die during the term ; yet if the reversioner, before the death of tenant for life, confirm the estate of the lessee for years, it is then no longer void- able, but sure. The latter branch, or that which tends to the in- crease of a particLilar estate, may be illustrated by the case of ten- ant for term of years, to whom the lessor confirms the land, to have for term of his life or in fee simple, whereby the term for years is enlarged, in one case, to the compass of a life estate, and in the other of a fee simple."^ The proper words of confirmation are "give, grant, ratify, ap- prove, and confirm"; but any words which plainly manifest the intent will suffice."* The modes whereby a confirmation enures or operates are : (1) To make sure a voidable estate ; and (2) to enlarge a particular es- tate, in which latter respect its effect is similar to that of a re- lease."' , § 988. Same — Confirmation Operating to Make Sure a Void- able Estate. A confirmation, being an approbation of, or assent to, an estate already created, by which the confirmor, as far as it is in his power, strengthens and makes it valid, it is manifest that it can have this operation only with respect to estates voidable or ssAute, §§ 333, 6G5, et seq. ; 2 Min. lusts. 428 et seq., 792. 60 2 Min. lusts. 792; Prestons y. JlcCall, 7 Grat. (Va.) 121. 612 Min. Insts. 792; Slieppard's Tonclist. 301. 62 2 Th. Co. Lit. 516; 2 Bl. Com. 32.5; 2 Min. Insts. 792. 63 2 Min. Insts. 793; 2 Bl. Com. 325, 320; 2 Th. Co. Lit. 538. 64 2 Min. Insts. 793; 2 Bl. Com. 325; 2 Tli. Co. Lit. 517. 6 5 Ante, § 976. (752) Ch. 39] CONVEYANCES — CONFIRMATION. § 990 defeasible, and can have no effect on estates which are absolutely void. "A confirmation," says Coke, "doth not strengthen a void estate ; for a confirmation may make a voidable or defeasible estate good, but it cannot work upon an estate that is void in law." °° For a confirmation operating to make sure a voidable estate, no privity is necessary as it is in the case of a release (or con- firmation), enuring by way of enlargement. Hence, if my tenant for life makes a lease for years, although I cannot release to the lesse for years for want of privity, yet I may confirm his estate, so as to make it unavoidable. So I cannot release to the termor of my disseisor, because there is no privity between us, but only a bare right; but I may confirm the termor's existing estate. Con- firmation requires no words of limitation, such as heirs ; for if the confirmee's estate be made sure, even for a minute, it can never be defeated by the confirmor, whilst, without words of limitation, a release, at common law, enlarges the releasee's interest merely to a life estate. •'' § 989. Same — Confirmation Operating to Enlarge a Particular Estate. The enuring of a confirmation to enlarge a particular es- tate is, as Gilbert, C. B., observes, foreign to its business and pur- pose, and is, indeed, due to the special words employed, and not to the nature of the conveyance. So far as it thus operates, a confirmation differs little from a release enuring by way of en- largement, and, like that, requires (1) that the confirmee should have a vested estate in possession, and not a mere right; (2) that the confirmor should have a vested estate in reversion or remainder, expectant mediately or immediately on the estate of the confirmee ; and (3) that there should be a privity of estate between the confirm- or and confirmee.*^ • § 990. Same — Requisites of a Confirmation. For a valid con- firmation, it is essential that there be : (1) A precedent estate in the confirmee, rightful or wrongful, in his own or in another's right ; (2) in the confirmor an estate of his own, out of which the confirma- tion may enure ; and (3) a deed. 66 2 Th. Co. Lit. 516, note (A) ; 2 Jlin. Insts. 793. This operation of a confirmation (namely, to make sure a voidable estate) is the proper work of such a conveyance. If It goes to enlarge the confirmee's estate, It is by force of the words of enlargement which are employed, and is foreign to its proper business and object. Gilbert, Ten. 75 ; 2 Th. Co. Lit. 516, note (A) ; 2 Min. Insts. 793. 67 2 Min. Insts. 793, 794 ; Gilbert, Ten. 75 et seq. ; 2 Th. Co. Lit. 521 et seq. 68 Gilbert, Ten. 75; 2 Min. Insts. 794; 2 Bl. Com. 326; 2 Th. Co. Lit. 391), note (Z, 2). See ante, § 976. No livery is necessary at common law, nor' indeed possible, if the confirmee is already in possession of a freehold estate^ MiNOB & W.Eeal Pkop.— 48 (753) § 990 CONVEYANCES — CONFIRMATION. [Ch. 39 In regard to the latter, it seems always to have been necessary, even at common law, that a confirmation should be evidenced by deed, there being no visible and notorious change of possession ac- companying it."" § 991. IV. Assignment. An assignment, in a general sense, is a transfer, or making over to another, of the right one has in any estate or property; but, in the sense of a conveyance of lands or tenements, it is usually applied to an estate for life or years. It dif- fers from a lease only in this : That by a lease one grants an in- terest less than his own, reserving to himself a reversion; in an assignment he parts with the whole property, and the assignee stands for many purposes in the place of the assignor.'"* The proper words of assignment are "assign, transfer, and set over," but not to the exclusion of any other language that plainly expresses the idea. Thus, if one leases the land to another for his entire term, reserving a rent, or if he underlets, it is an assign- ment, and not an underlease, although a rent be reserved.'^ All that is essential to make a good assignment is the intention to place the beneficiary exactly in the place of the assignor. If his terms of holding are different, as at an increased rent, though the whole estate is transferred, it is not an assignment, but an un- derlease.'^ § 992. Same — Mode of Assignment. At common law, an as- signment of a lease, whether for life or years, may be made by parol only, although, if it were for life, it ftiust be accompanied (as the transfer of every freehold in lands must be) by livery of seisin. But since the statute of frauds and perjuries, 29 Car. II, c. 3, §§ 1, 2, 3, the policy has been to require it to be, in all cases (in pursuance of section 3), even where the interest assigned does not exceed three years, by deed or writing.''^ There needs no valuable consideration to support an assignment, the liabilities incident to the lease, as to pay rent, etc., which the assignee assumes, being always sufficient.'* § 993. Same — What may be Assigned. An assignment, as a specific mode of conveyance, is properly applicable, it will be re- «» 2 Min. Insts. 794. The deecl is .ihvays necessary at common law in cases where no livery of seisin can be given. Ante, § 132. TO 2 Min. Insts. 795 ; 2 Bl. Com. 326, 327. 712 Min. Insts. 795; 2 Th. Co. Lit. 506, note (S) ; Palmer v. Edwards, 1 Dougl. 187, note ; Scott v. Scott, 18 Grat. (Va.) 159 et seq., 177 et seq. '2Dunlap V. BuUard, 131 JIass. 101; Post v. Kearney, 2 N. Y. 394, 51 Am. Dec. 303 ; CoUamer v. Kelley, 12 Iowa, 319. 73 2 Min. Insts. 795. 74 2 Min. Insts. 795 ; 2 Th. Co. Lit. 566, note (S). C754) Ch. 39] CONVEYANCES ASSIGNMENT. § 904 membered, only to the transfer of the lessee's whole estate, when such estate is for life or years. '° It is often used, however, in a more general sense, to signify the transfer of any estate or interest whatever in real property ; and ■ as the general principles which regulate the transaction in its more comprehensive signification are the same as those which govern it in its more limited and proper sense, there will be no need in stat- ing those principles to discriminate between the two senses. The doctrine is that every estate and interest in lands and tenements, and every present and certain estate or interest in incorporeal hereditaments, such as rents, ways, franchises, etc., may be as- signed, so that if, in leases for life or years, it is intended to re- strict or bar the power of assignment, it must be done by special and precise stipulations. Even though the interest be future, as a term for years to commence at a subsequent period, it may be as- signed ; for it is vested in praesenti, though it is to take effect in enjoyment only in futuro.'" But no right of entry or of action can be assigned at common law, so that if one is disseised, and assigns his right to another be- fore he has entered on and dispossessed the disseisor, the assign- ment is void, which Coke explains to be "for avoiding of mainte- nance, suppression of right, and stirring up of suits." " But even at common law, although the assignment of such interests does not pass the legal title, yet it creates an equitable ownership which the Court of Chancery protects, and to which it gives effect.^ ^ A distinction must be noted, in respect to assignability, between a naked power or license, which is not capable of being assigned, and a power or license coupled with an interest, which may be. Thias, if a stranger has authority to cut and sell timber trees from certain lands, he cannot assign the authority ; but if a lessee of the land has such power conferred upon him, by assigning the lease, he may pass the power with it.^" § 994. Same — Rights and Liabilities Arising out of the Assign- ment of a Lease. These rights and liabilities depend, for the most part, upon the stipulations and conditions, express and implied, con- tained in the lease; and in general, forasmuch as they arise as inci- dent to the assignment, they cease and determine when the as- signee's possession ceases under the assignment. Thus, if he as- signs over his interest and parts with the possession, he is no longer 7 5 Ante, § 991. 76 2 Jlin. Insts. 796. 77 2 Th. Co. Lit. 566, note (S), 85; ante, § 477; 2 Min. Insts. 796. 7 8 2 Min. Insts. 796. See ante, § 477. 7»Ante, § 125; post, § 1047; 2 Min. Insts. 796. (755) § 994 CONVEYANCES ASSIGNMENT. [Oh. 39 answerable for any rent which may accrue afterwards, nor for the breach of any of the agreements contained in the lease ; not even though he should assign to a beggar, nor though the person to whom he assigns neither takes actual possession, nor receives the lease.*" The rights and liabilities arising upon an assignment have been fully discussed elsewhere,*'^ and the discussion need not be re- peated. Suffice it to say that the general doctrine is that, in re- spect to the lessor and his representatives, the assignee of the land may have the benefit of, and is chargeable with, all the cove- nants contained in the lease which run with the land, and are broken during the continuance of his interest. But at common law the assignee of the reversion is neither liable upon any express covenants contained in the lease, nor is entitled to the benefit there- or, either as against the lessee, or his assignee — a doctrine which it has been found needful materially to modify by statute. ^^ § 995. V. Defeasance. A defeasance is a collateral deed, made at the same time with a feoffment, or other conveyance, containing certain conditions, upon the performance of which the estate then created may be defeated. And in this manner mortgages were for- merly made, the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoff- ment was rendered void on repayment of the money borrowed at a specified time. And this, when executed at the same time with the original feoffment, was considered as part of it, and therefore only indulged ; no subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of sim- plicity, though when uses were afterwards introduced, a revocation of such uses was permitted by the courts of equity. But things merely executory, or to be completed by matter subsequent, as rents, annuities, covenants, promises, and the like, were always liable to be recalled by defeasances, made subsequent to the time of their creation, by the party entitled to enjoy them.*'' A defeasance, it will be observed, differs from a condition in be- ing contained in a separate deed, executed at the same time with the original, whilst a condition is contained in the same deed. And this diversity has led, in a great degree, to the disuse of defeasances in practice, partly because they were often employed as a cover for ■ 80 2 Min. Insts. 706, 797 ; 2 Tb. Co. Lit. 566, note (S) ; 2 Rob. Pr. (2d Ed.) 102 ; Staines v. JXorrls, 1 Ves. & B. 11 ; Taylor v. Shum, 1 Bos. & P. 21. siAnte, § 374 et seq., 1131. 8 2 31 Hen. VIII, c. 13, and 32 Hen. VIII, c. 34. See ante, § 378. 8S2 Mln. Insts. 801; 2 Bl. Com. 327; 2 Th. Co. Lit. 122, 123, note (O, 3). See Macaulay v. Smith, 132 N. Y. 524, 30 N. E. 997. (756) Ch. 39] CONVEYANCES UNDER STATUTE OF USES. § 996 fraud, and so became objects of suspicion, and partly from the ap- prehension that, as the conveyance without the defeasance was ab- solute, if the defeasance were lost, the proof of the condition might be difficult, if not impossible.'* The defeasance must contain sufficient words, as that the thing shall be void in the event designated, although no particular ex- pressions are indispensable. But it must always be by matter as high as the thing to be defeated. Hence an obligation under seal cannot be defeated or discharged by writing unsealed.*^ § 996. Conveyances Operating under the Statute of Uses — I. Conveyances Operating with Actual Transmutation of the Posses- sion. The student will recall that the statute of Uses, 27 Hen. VIH, c. 10, in substance provides that wherever any person is seised by any ways or means whatsoever of any lands, tenements, or hereditaments to the use of another, the possession of him that is seised shall be transferred to him who has the use, for the estate he has in the use, as effectually and fully as if he had been enfeoffed of the land with livery of seisin. '° It will likewise be remembered that conveyances operate under the statute in two ways, either with or without actual transmuta- tion of the possession to a third party for the use of the bene- ficiary.^' Conveyances which operate under the statute of uses, with actual transmutation of the possession, suppose that a conveyance oper- ating at common law is made by the grantor to the intended trus- tee (as by feoffment, lease and release, fine, common recovery, etc.), accompanied by a declaration of the uses and trusts to which it' is designed the trustee shall be seised. For example, a feoffment, with livery of the land, is made by the grantor, whom we may call A., to the trustee, T., and his heirs, in trust for, or to the use of (the form of the phrase is immaterial), cestui que use, C, and his heirs. The common law operates to transfer the land, by means of the feoffment and livery, to T., and then the statute takes the seisin out of him, and transfers it to C' This class of conveyances is employed in England in marriage settlements, and wherever it is desired to create future uses in favor of persons not in being or not ascertained; and there is a grave 84 2 Min. Insts. 801; Sheppard's Tbuchst. 396 et seq. 80 2 Min. iQSts. 801; 2 Tli. Co. Lit. 122, note (O, 3); Cabell v. Vaughan, 1 Saund. 291, note (1) ; Lacy v. Kynaston, 2 Salk. 575 ; Slieppard's Touchst. 397. 8 8 Ante, §401; 2 Min. Insts. 804. 8 T Ante, § 401; 2 Min. Insts. 804 et seq. 88 2 Min. Insts. 805 ; ante, § 401, (757) § 996 CONVEYANCES UNDER STATUTE OF USES. [Ch. 39 doubt whether the statute applies to execute such uses when created by bargain and sale, because, it is said, cestui que use cannot, in the nature of things, have supplied the valuable consideration which the conveyance requires.*" This statement resolves a question which is liable to perplex the student, namely: Why resort to a feoffment, or other com- mon-law conveyance, to vest the land in one person, in order that the statute may take it out of him and transfer it to another? Why not at once convey it to that other? The statute must, of course, have included uses declared on such conveyances, in order to ac- complish its purpose of abolishing uses altogether; but the ques- tion relates rather to the reasons which influence grantors to choose the apparently roundabout method of conveyance by feoffment to uses, instead of some more direct mode of transfer, as by simple feoffment and livery immediately to the intended beneficiary. It will be perceived that by conveying thus by feoffment, etc., to the uses declared, there is created in the feoffee, etc., what may be de- nominated a kind of reservoir of seisin, which will apply to (or serve, as it is termed) any future uses which are limited agreeably to law, without the embarrassment arising from the necessity that cestui que use should be within the consideration. Hence it is that this mode of conveyance is in England invariably used in family settlements, which often contemplate very remote limitations, and always limitations to persons not in being."" § 997. II. Conveyances Operating under the Statute of Uses, without Actual Transmutation of Possession. Since, prior to the enactment of the statute of uses, a use might be raised, either by a declaration contained in or annexed to a feoffment or other convey- ance transmuting the possession of the land to another person, who was then a trustee, for the uses declared, or, as it was usual to style him, feoffee to uses, or by any contract founded upon an adequate consideration, without any actual transfer of the possession, the bargainor being himself, in that case, the trustee, so, also, under 27 Hen. VIII, c. 10, which embraces all uses, howsoever created, we have a similar division. "'^ The adequate consideration on which a contract or covenant must be founded, in order to raise a use before the statue, as well as since, may be either, first, a consideration of value, in which case the instrument is known as a bargain and sale ; or it is, secondly, a consideration of natural love and affection for the covenantor's 89 2 Mln. Insts. 208, 805 ; Gilbert, Uses, 163, note (5), 398, note (2). »o 2 Min. Insts. 805, 806. »i 2 Min. Insts. 806. (758) Ch. 39] CONVEYANCES — BARGAIN AND SALE, § 998 wife, or some near relative, when the instrument has been always designated as a covenant to stand seised. And these two exhaust the modes of raising uses prior to the statute without actual trans- fer of the possession, and in principle exhaust such modes under the statute. There is, however, under the statute, a third mode, ac- cording to the usual classification, whereby a bargain and sale is made for a year, and the bargainee, being thus put statutorily into possession for a year, is thereby enabled to receive a release enuring by way of enlargement; "^ and to this the name of lease and release has been given. We are to consider, then, under the head of con- veyances operating without transmutation of possession : (1) Con- veyance by bargain and sale ; (2) conveyance by covenant to stand seised; and (3) conveyance by lease and release.'" § 998. Same — 1. Conveyances Operating as a Bargain and Sale. A bargain and sale is a contract by which one agrees for any val- uable consideration (it is not indispensable that it should be money, as Lord Chief Baron Gilbert insists) to stand seised of his lands to the use of another. At common law it might have been by words only, without writing; but by statute 27 Hen. VIII, c. 16, it was required, if it were for an estate of inheritance or of freehold, to be by deed indented and enrolled; and by the statute of frauds and perjuries, 29 Car. II, c. 3, §§ 1, 2, 3, it must be in writing, even though it relates to estates for years only, if it exceed three years.'* By such a contract a use arises to the bargainee, to whom the statute immediately passes the legal estate and possession of the land for the estate or interest that he had in the use, without any entry, or other act on his part.'^ ' The proper technical words of this conveyance are "bargain and sell"; but they are by no means essential to its operation.'^ The material thing is a valuable consideration, afld, therefore, if for such consideration a man, without making livery of seisin, covenant to stand seised, or gives and enfeoffs, or aliens, grants and demises, it will operate as a bargain and sale."^ The consideration, if valuable, may be a trifling one, and the actual amount need not be stated; nor, if it be expressed in the deed, need it be actually paid, no averment or proof to the contrary 32 2 Min. Insts. 787. '3 2 Min. Insts. 806. 94 2 Min. Insts. 806; Gilbert, Uses, 187, note (10), 95, note (5); 2 Th. Co. Lit. 578, note (B). »6 2 Min. Insts. 807; 2 Th. Co. Lit. 578, note (B), 461, note (Q). 98 For form of conveyance by bargain and sale, see ante, § 890, note. 97 2 Min. Insts. 807; 2 TtL Co. Lit. 578, note (B) ; Bowlett v. Daniel, 4 Munf. (Va.) 473. (759) § 998 CONVEYANCES BARGAIN AND SALE, [Oh. 39 being admitted. Indeed, it seems not absolutely necessary that the consideration should be mentioned at all in the deed, as extrinsic proof of any valuable consideration not inconsistent with the deed is admissible." For every conveyance under the statute of uses, there must be a use, and a seisin to serve it. Hence a person not seised (that is, not possessed of a freehold) cannot convey by bargain and sale. Thus, whilst all corporeal hereditaments, of which the bargainor has a seisin, and all incorporeal hereditaments in actual existence, may be conveyed thereby, and whilst one seised of a freehold in lands may, by bargain and sale, convey a term for years, no term for years already created can be so transferred, because the owner has no seisin, as the statute requires.^' Contingent uses limited to a person not in esse, or not ascer- tained, it is said, cannot be raised by bargain and sale, because the intended cestui que use cannot provide the consideration ; and it is asserted that a consideration paid by other parties, as for ex- ample, by the precedent tenant for life, would not suffice ; ^ and yet it is admitted, that when there are several bargainees, as A., B., and C, a consideration furnished by any one will enure to all ; nay, where the remainder is vested, a consideration paid by the particu- lar tenant will enure to the successors. Thus, if A. agree, for a valuable consideration paid by B., to stand seised to the use of B. for life, remainder to C., the statute will execute as well the re- mainder to C. as the particular estate to B. It is even said that, if the consideration be paid by a stranger, it will suffice.^ A bargain and sale (like a covenant to stand seised, and a lease and a release, operating under the statute of uses), is said to be an innocent conveyance, in contradistinction to a tortious one.^ Nei- ther of these three conveyances passes any interest but that which the seller may lawfully pass. They therefore produce no discon- tinuance when made by a tenant in tail, nor any forfeiture when made by a tenant for life. These conveyances, moreover, of them- selves pass only a use ; the legal estate and possession being trans- ferred by the statute. Hence no use can be limited upon the estate of the bargainee, etc., so as to be executed by the statute ; but the »8Ante. § 938; 2 Min. Insts. 807; 2 Th. Co. Lit. 579, note (B), 9, note (E) ; Gilbert, Uses, 96, note (6), 462; Duval v. Bibb, 4 Hen. & M. (Va) 113 i Am. Dec. 506. ' 99 2 Min. Insts. 807; Gilbert, Uses, 492; 2 Th. Co. Lit. 578, note (B). 1 2 Min. Insts. 808 ; Gilbert, Uses, 398, note (2), 163, note. 2 2 Min. Insts. 808 ; Gilbert, Uses, 45S, 96, note (7). sAnte, § 196. (700) Ch. 39] CONVEYANCES COVENANT TO STAND SEISED. § 999 second use is no more than an equitable estate (as all uses were prior to the statute), under the denomination of a trust.* When the statute of uses was enacted, its framers easily foresaw that conveyances would frequently be made by bargain and sale, being a conveyance of a private nature, not requiring the notoriety of livery ; and in order to protect society against the ill consequences of such secrecy, it was enacted in the same session of Parliament, by statute 27 Hen. VIII, c. 16, that such bargains and sales should not enure to pass an estate of inheritance, or of freehold, unless fhey were by deed indented and enrolled, within six months from the date, in one of the courts of record at Westminister, or with the custos rotulorum of the county where the lands lay; and to this day this is the only general statute of registry in England.'^ § 999. Same — 2. Conveyance Operating as Covenant to Stand Seised. A conveyance by covenant to stand seised, like that by bargain and sale, is a contract by which one agrees to stand seised of his lands to the use of another ; but it differs from a bargain and sale in the fact that a deed is in all cases necessary," and also in the consideration required for it, which, instead of being valuable, is a consideration of natural love and affection for a near relative, or a wife ; friendship, long acquaintance, having been school- fellows, or even love for a bastard child, not being sufficient to raise a use, and therefore not sufficient for the operation of the statute. Supposing the consideration sufficient, the covenantee, by deed, acquires the use, to which the statute transfers the cor- poreal possession of the land, without his ever seeing it, by a kind of parliamentary magic, as Blackstone observes.' The consideration is the foundation of this conveyance, and* if that exist, the words "covenant to stand seised" are not essen- tial, but may be substituted by any words demonstrative of the intent, such as grant, bargain, sell,. assign, enfeoff, etc.; nor is it needful, supposing that there is the near kindred, etc., expressly to declare the consideration.' It will be observed that a covenant to stand seised can raise no 4Ante, § 410 ; 2 Min. Insts. 216, 808 ; 2 Th. Co. Lit. 581, note (B). 5 2 Min. Insts. 807, 808; 2 Tli. fco. Lit. 579, note (B) ; Gilbert, Uses, 200 et seq.. 320; Williams, Real Prop. 423. 6 2 Min. Insts. 809 ; Gilbert, Uses, 243, note (4). 7 2 Bl. Com. 338; 2 Min. Insts. 809; 2 Th. Co. Lit. 580, note (B) ; Gilbert. Uses, 456, note (4). 8 2 Min. Insts. 809; 2 Bl. Com. 338, note (59); 2 Th. Co. Lit. 580, note (B) ; Gilbert, Uses, 251, note (2), 250, note (10) ; Bedell's Case, 7 Co. 40 ; Watts V. Cole, 2 Leigh (Va.) 662. (761) § 1000 CONVEYANCES LEASE AND RELEASE. [Cll. 39' use in favor of strangers to the consideration ; and hence, if one covenants with three persons, one of whom is his brother, to stand seised to their use, it raises a use in favor of the brother alone, and operates only to transfer the possession to him, he taking all.'' So no one can transfer lands by this conveyance who cannot be seised to a use, and who has not a vested estate in possession, re- mainder or reversion in the lands; nor can any. property be trans- ferred by it which cannot be conveyed to uses.^" § 1000. Same — 3. Conveyance by Lease and Release. The con- veyance by lease and release consists of two parts, namely, a lease for a short period, say a year, which, when it is consummated by statutory possession in the lessee, is followed by a deed of release, which operates by way of enlargement, enlarging the lessee's estate to the full compass of the terms of the release. This was a con- veyance very well known to the common law before the statute of uses, being employed hardly less frequently than feoffment; but at common law the lessee, in order to qualify himself to receive the re- lease, was obliged actually to enter and take possession of the prem- ises, and then only was competent to have the reversion released to him." In lease and release, taking effect under the statute of uses, the lease is a bargain and sale for a year, whereby the possession is, by the operation of the statute, transferred to the lessee for a year, without any actual entry on his part, and thus he is prepared to receive a common-law release from the lessor, enuring to enlarge his estate to the extent of the terms of the release. Theoretically, therefore, the lease should be executed first; but it is immaterial how short a time may intervene, and in practice they are general- ly executed at the same meeting of the parties. It is said, indeed, that they may be contained in the same deed ; nay, that the recital of the lease in the release is sufficient evidence of the lease, as against the releasor and those claiming under him, but not as to others, without proof that the lease once existed and is losf.^^ As the lease operates as a bargain and sale under the statute of uses, whatever is requisite to a bargain and sale is necessary to it. None can convey by it who cannot be seised to a use, nor can any property be transferred by this means, which is incapable of being « 2 Min. Insts. 809 ; Gilbert, Uses, 246, 457, note (5) ; 2 Th. Co. Lit. 580, note (B). 10 2 Min. Insts. 809; 2 Th. Co. Lit. 581, note (B). 11 Ante, § 976; 2 Min. Insts. 809, 787; Gilbert, Uses, 325, 228, note (2). 12 2 Min. Insts. 810; Gilbert, Uses, 228, 229; 2 Th. Co. Lit. 581, note (B). (762) Ch. 39] CONVEYANCES — UNDER STATE STATUTES. § 1001 conveyed to a use: and it no more creates a discontinuance or for- feiture than does a bargain and sale, or a covenant to stand seised. ^^ The conveyance by lease and release under the statute of uses is said to have been invented by Sergeant Moore, at the request of Lord Norris, in order to prevent some of his relations from learn- ing from the public records, or from the notorious ceremony of liv- ery, what disposition he should make of his estate. Had he con- veyed it by feoffment at common law, the livery of seisin would have given a necessary notoriety to the transaction ; if by lease and release, at common law, the need of actual entry by the lessee Avould have made it only a little less notorious ; if he had employed a bar- gain and sale, the statute required an enrolment as to all freeholds, which again would have occasioned the publicity which it was de- sired to avoid ; but by lease by bargain and sale for a year, the pos- session was in law transferred to the lessee, as if he had entered, the necessity for enrolment was obviated, and thus by two secret deeds the fee simple was conveyed. By this device the general registry of conveyances, which was contemplated by 27 Hen. VIII, c. 16, as a substitute for the notoriety of livery, was evaded, and rendered of little effect.^* § 1001. Conveyances Operating under State Statutes. There are in probably all of the states statutes of conveyances which pre- scribe with what forms land may be conveyed. These provisions are in addition to those of the statutes of frauds which require a deed for the creation or transfer of estates in land greater than for a certain term of years. Under these statutes of conveyances, where the statutory conditions exist and the statutory form is used, the deed will, by force of the local statute, operate to pass the title, without the necessity for livery of seisin or for resorting to the statute of uses. But it is to be remembered that everywhere a deed which for any reason cannot take effect under the local statute may take ef- fect under the statute of uses as a bargain and sale or a covenant to stand seised, provided the conditions exist which are necessary to raise a use which the statute will execute.^'' 13 2 Min. Insts. 810; 2 Tli. Co. Lit. 581, note (B) ; Gilbert, Uses, 228 et seq., note (2). 14 2 Min. Insts. 810, 811; 2 Bl. Com. 339; 2 Th. Co. Lit. 582, note (B) ; 4 Reeves, Hist. Eng. Law, 335. 15 2 Tiffany, Real Prop. § 377. (763) CHAPTER XL. TITLE BY DEVISE, § 1002. Nature of Wills of Land, or Devises. 1003. Origin of Devises. 1004. Capacity to Devise Land, or Testamentary Capacity. 1005. I. Unsoundness of Mind. 1. In General. 1006. 2. Lunacy and Monomania. 1007. II. Tlie Age of Capacity. 1008. III. Effect of Fraud, Force or Undue Influence upon Testator. 1009. Capacity to Take under a Devise. 1010. Same — Devise Void Where It is to Testator's Heir, to Take in Like Manner as He would Take as Heir. 1011. Disclaimer of Title by Devisee. 1012. What Property is Devisable. 1013. Formalities Required in the Execution of a Devise. 1014. The Will must be in Writing. 1015. The Signature of the Testator. 1016. Holographic Will. 1017. Attestation of Will by Subscribing Witnesses. 1018. The Competency of the Attesting Witnesses. 1019. The Revocation of Wills. 1020. I. Express Revocation of Wills. 1021. Express Revocation Dependent upon Intention. 1022. 1. Express Revocation by Subsequent Will or Codicil Executed Like a Will. 1023. 2. Express Revocation by Declaration to That Effect in Writing Executed Like a Will. 1024. 3. Express Revocation by Destroying the Will, with In- tent to Revoke the Same (Animo Revoeandi). 1025. II. Implied Revocation of Wills. 1. Implied from a Subsequent Change of Estate. 1026. 2. Revocation Implied from Testator's Subsequent Marriage. 1027. 3. Revocation Implied from Subsequent Birth of Pretermit- ted Children. 1028. Republication or Revival of Revoked Wills. 1029. Effect of Revocation of Revoking Will. 1030. Lapsed Devises. 1031. Effect of Lapse upon Residuary Clause. 1032. Probate and Recordation of Wills. § 1002. The Nature of Wills of Land or Devises. The word "devise" (from Fr. deviser — to speak) means a gift by will of real property, whilst the words "legacy" and "bequest" both signify a gift by will of chattels. Hence "devisee" means one to whom real property is devised, and "legatee" one to whom personal prop- erty is bequeathed.^ 1 2 Min. Insts. 997 ; 2 Th. Co. Lit. 636, 646. (764) Ch. 40] WILLS — ORIGIN OF DEVISES. § 1003 A will is a declaration, made in due form of law, of a man's mind or last will of what he would have to be done with his estate, whether real or personal, after his death. The word "testament" is synonymous with it; the two words being indiscriminately used in our law.^ A will or testament is always in its nature ambulatory, that is, revocable during the lifetime of the maker ; and if truly a will, and not partaking of the nature of a contract, it cannot be made ir- revocable by the most express declaration.^ § 1003. Origin of Devises. Prior to the Norman Conquest, the better opinion seems to be that lands were freely devisable amongst the Anglo-Saxon and Danish people of England, though it would appear to have been rather adopted from the remnant of the Ro- man laws and customs which they found there, than brought from their own country; for Tacitus, writing of the ancient Germans, says, "Successores sui cuique liberi at nullum testamentum.'' * After the Conquest (A. D. 1066), and the introduction of the system of feuds, the power of devising lands ceased, except by the custom of particular places, and except, also, as to terms for years in lands, which, on account of their original imbecility and insignificance, were regarded as personalty, and as such were al- ways, like other chattels, disposable by will. This limitation of the testamentary power, as to freehold estates, proceeded partly from the solemn form of transferting land by livery of seisin in- troduced at 'the Conquest, which could not be complied with in case of a last will, partly from a jealousy of deathbed dispositions, but principally from the general restraint of alienation incident to the rigors of the feudal system, as it was established, or at least perfected, by the first William, abou't twenty years after his succes- sion (say about A. D. 1086). ^ In the reign of Edward I, the statute of quia emptores (18 Edw. I, c. 1, A. D. 1290), removed in great measure this latter bar to the exercise of testamentary power; that is, as to all freeholders, ex- cept the king's tenants in capite, as to whom it was also removed by statute, 1 Edw. Ill, c. 12 (A. D. 1327). But the two former obstructions still continued to operate, and Parliament was not moved, either by its own wisdom or the demands of the people of 2 2 Min. Insts. 997 ; Bac. Abr. Wills (A). 3 2 Min. Insts. 997 ; 2 TJi. Co. Lit. 646 ; 4 Kent, Com. 520 ; Vynior's Case, S Co. 82a. 4 Germ. XX ; 2 Min. Insts. 997. 6 2 Min. Insts. 998; 2 Bl. Com. 374; 2 Tli. Co. Lit. 636, note (2); ante, §315. (765) § 1003 WILLS ORIGIN OF DEVISES. [Ch. 40 England, to relax or remove the common law restriction in respect to alienating lands by will, until 32 Henry VIII (A. D. 1541). That the English people, jealous as they are, and have ever been, of their rights of property, should have acquiesced so long in their deprivation of the right to dispose of their lands by will, is a re- markable phenomenon, which is only partially explained by the introduction of uses. It will be remembered, that uses came into fashion in the latter part of the reign of Edward III (say about A. D. 1370), and that, ere the lapse of many years, declarations of the use by will were readily protected and enforced in equity as declarations made by any other sort of instrument Avere ; and we saw that uses were not a little recommended to public favor by the fact that they were thus devisable," and that through that medium the power of devising lands was thus exercised in effect and reality. But when, in 1536, the famous statute, 27 Hen. VIII, c. 10, was enacted, which was designed to abolish uses altogether, by trans- ferring the possession or legal estate to the use, and was at first supposed to have accomplished its interided purpose, although in the sequel it proved far otherwise, and uses were as easily created as before — when that statute was enacted, and the people found themselves (as was thought) deprived of the power of devising their lands through the medium of uses, they dealt so potentially with the Parliament as, within the then wonderfully short period of five years, to obtain the statute since known as the "statute of wills and devises." ' But by neither of the first statutes of wills was any form or ceremony prescribed, save that the will should be in writing; and very many frauds and perjuries having thence resulted, wholesome safeguards and detailed directions were devised and provided by the oft-cited statute of frauds and perjuries, 29 Car. II, c. 3, for wills, and also for certain other transactions, of which copious ex- planations have already been presented. From what has been said, it is apparent that in every country which derives its jurisprudence from England (as do all these states except Louisiana) the right to aliene freehold estates in lands at all, and the mode of alienation, must depend on statute law; and hence the extent of the right, and the mode of exercising it, mav oAnte, § 39S ; 2 Mill. Insts. 908, 20.j. 7 2 Mill. Insts. 998, 999; .32 Hen. VIII, c. 1, explained by 34 Hen. VIII, c. 5 (A. D. 1.541, 1543) ; 2 Tli. Co. Lit. 636, note (2). These statutes permittee! to be devised all the testator's socage and two-thirds of his chivalry lauds; and 12 Car. II, c. 24 (A. D. 1660), having for the most part converted the chivalry tenures of England into socage tenures, pretty much all the lands in the kingdom became thereby devisable. 2 Min. Insts. 999. (766) Ch. 40] WILLS SANITY OF TESTATOR. § 1005 be expected to vary, more or less, in the several communities so situated, although, in respect to wills of lands especially, the stat- utes of the American states generally have been derived from a common English original, besides copying from one another, and are, therefore, in structure, and even in terms, closely assimilated. § 1004. Capacity to Devise Land, or Testamentary Capacity. The right to devise lands at all being statutory, the statue deter- mines also the persons who shall be deemed competent by the law so to dispose of their real estate. The age of testamentary capacity varies from fourteen to twen- ty-one years. It will be found that, while married women general- ly are given the capacity to make a will, they are in some states restricted in favor of their surviving husbands as to the amount of property which they can dispose of. Everywhere it is expressly required that a testator be of sound mind,* and, on general principles, he must not have been induced to make his will by fraud, force, or undue influence. § 1005. I. Unsoundness of Mind — 1. In General. It is exceed- ingly difficult to lay down any general rules of universal applica- tion, by which to determine whether a testator is of such unsound mind as to deprive him of testamentary capacity. Some of the older cases seem disposed to go very far in up- holding the wills of persons of weak intellect, holding in effect that, if there be a glimmer of reason, testamentary capacity is es- tablished.' But the more recent, and the better, view seems to be that each case should be judged according to the circumstances, and to call upon the propounder of the will to satisfy the conscience of the court that the testator, when he executed the will, was ca- 8 3 Washburn, Real Prop. (Otli Ed.) § 2436. 9 See Stewart v. Lispenard, 20 Wend. (N. Y.) 2.j.j ; Potts v. House, 6 Ga. 324, 50 Am. Dec. 346, 348, note; Lee v. Lee, 4 McCord (S. C.) 183, 17 Am. Dec. 722. In Stewart v. Lispenard, supra, the court held a will valid, though executed by a woman who all her life was incapable of taking care of herself, and had to be watched, nursed and put to bed like a child. She could not be taught the Lord's Prayer, nor to read nor write. The utmost scope of her education was to spell words of two syllables. The court, in that case, laid down the following rules, which would scarcely at present be recognized, at least, not in their entirety: (1) That weakness of mind will not avoid a will, if it does not amount to idiocy, lunacy or total imbe- cility; (2) tbat in passing upon a will courts do not attempt to measure the extent of the testator's understanding ; for if he . be not totally deprived of reason, whether he be wise or unwise, he is the lawful disposer of his prop- erty, and his will stands as a reason for his actions ; (3) that a person's <:apacity may be perfect to dispose of property by will, and yet inadequate for the management of other business. (767) § 1005 WILLS SANITY OP TESTATOE. [Oh. 40 pable of knowing and understanding (1) the nature of the business he is then engaged in, (2) the elements of which the will is com- posed, and (3) the dispositions made therein of his property, both as to (a) the estate disposed of, (b) the persons to whom he means to give it, and (c) the manner in which it is to be distributed among them.i" Mere eccentricity, however great, does not suffice to invalidate a will.^^ So mere old age does not of itself deprive one of the capacity to make a will. The want of recollection of names is one of the earliest symptoms of the decay of memory from old age ; but it does not create a testamentary incapacity, unless it be quite to- tal, or extends to the immediate family and property of the tes- tator.12 An habitual drunkard is competent to make a will, unless his constant intoxication has produced settled derangement of his men- tal faculties, or unless he was so intoxicated at the time of executing the will as to have lost temporarily the use of his reason and mem- ory. The condition of mental incapacity is the point to be con- sidered, and that may be produced by a single act of intoxication.^^ 10 1 Redfleld, Wills, 130; Converse v. Converse, 21 Vt. 170, 52 Am. Dec. 58; Tucker v. Sandidge, 85 Va. 555, 8 S. E. 650; Martin v. Thayer, 37 W. Va. 38, 16 S. E. 489. 11 Mercer v. Kelso, 4 Grat. (Va.) 106; Lee v. Lee, 4 McCord (S. C.) 183, 17 Am. Dec. 722 ; Potts v. House, 6 Ga. 324, 50 Am. Dec. 346, note. Tluis, in Lee v. Lee, supra, tlie testator supposed himself continually haunted by witches, devils and the like, which he fancied were always worrying him. He believed that all women are witches ("in which," says the learned court, "he was perhaps not so singular"). He lived in the strangest manner, wore an extraordinary dress, and slept in a hollow log. He imagined that the Wiggins (relatives whom he wished to disinherit) were in his teeth, and to dislodge them he had fourteen sound teeth extracted. He had the quarters of his shoes cut off, saying that if the devil got into his feet he could drive him out the easier. His clothes at his death were appraised at one dollar. He always shaved his head close, so that, as he said, in the contests with the witches, they might not seize hold of his hair, and also to make his wits glib. He fancied at one time he had the devil nailed up in a fireplace at oue end of the house, and had a mark made across his room over which he never would pass, nor would he suffer it to be swept. He cut off the tails of all his hogs and cattle close to the roots, saying the cows made themselves poor fighting the flies with their tails, but cut them off and they would get as fat as squabs. And yet, notwithstanding these and many other hallucinations and whimsicalities, the will was established. See note to Potts v. House, supra. 12 1 Redfield, Wills, 97 et seq. ; Van Alst v. Hunter, 5 Johns. Ch. (N. T.) 148; Browne v. Molliston, 3 Whart. (Pa.) 129. See Montague v Allen 7,S Va. 592, 49 Am. Rep. 384. 18 Temple v. Temple, 1 Hen. & M. (Va.) 476; Peck v. Gary, 27 N. X. 0, (768) Ch. 40] WILLS SANITY OF TESTATOR. § 1006 Formerly, deaf and dumb persons were prima facie supposed to be without intellect, since they do not possess the ordinary inlets of learning and knowledge. But this presumption was re- buttable by particular proof of intelligence, as where they could write or make their wishes readily known. In recent times, how- ever, with the modern facilities for instructing such unfortunates and the widespread extent of such instruction, there is no reason to indulge any presumption at all against their intelligence, though the courts will jealously guard against any imposition practiced upon them.^* § 1006. Same — 2. Lunacy and Monomania. Lunacy may be either total or partial ; the one existing at all times and extending to all subjects, the other occurring only at particular times or ex- tending only to particular hallucinations. In either case, when the hallucination enters into and afl'ects the provisions of the will, it invalidates the instrument, which result would always occur if the insanity be total. But if the lunacy is partial only, and the will is made in a lucid interval, or the hallucinations of the testator do not relate to the matters or persons mentioned in the will, it is valid. ^^ The fact that a testator has disinherited all his relatives, or has preferred collateral relatives to his next of kin, is only a circum- stance tending to show mental incapacity, and, standing alone, is of no value for the purpose of showing the testator's incompetency ; .S4 Am. Dec. 220. note; Gardiier v. Garctuer, 22 Wend. (X. Y.) 52G, 34 Am. Uee. 340; McLaughlin's \Yill, 2 Redf. Sur. (K Y.) 513. 14 1 Redfield, Wills, .'52 et seq. 15 Potts V. House, 6 Ga. 324, 50 Am. Dec. 3.53, 3.54. note; Pidcock v. Pot- ter, 08 Pa. 342, 8 Am. Rep. 181 , 188, note ; Dew v. Clark, 1 Hagg. Ecc. 311. The last case is a striking illustration of that delusion in relation to the act in question, which may defeat a will, while the testator may be sane on all other suhjects. In that case the testator was a sensible man, conduct- ing himself rationally in his affairs and in the ordinary transactions of life. His friends never even suspected that he was deranged. Yet it was shown that he labored under some strange hallucinations both as to himself and his daughter. She was proved to have been always amiable in her dispo- sition, of superior talents and engaging manners, diligent, patient, dutiful and religious ; j et in the deluded mind of the father she was the most extraor- dinary instance of depravity, vice, crime, profligacy and disobedience, and quite irreclaimable, while he considered himself a pattern of fatherly tender- ness and affection, though tying his daughter to a bed post and flogging her unmercifully, and compelling her to perform the most menial drudgery. These impressions were recorded in his will, but Sir John Xichnls. taking a dif- ferent view of both father and daughter from that of the testator, jjronounced against the testator's competency and the validity of the will. See Boyd V. Eby, 8 Watts (Pa.) 71, 72. MiNOB & W.Eeal Prop.— 49 (769) § 1006 WILLS — SANITY OF TESTATOR. [Ch. 40 for a testator may do what he wills with his own, though he act unjustly to his relatives. But, taken with other circumstances, the fact of such disposition may be of considerable weight in es- tablishing mental unsoundness or undue influence.^' The proof of the testator's insanity may be made either by the subscribing witnesses to the will, by expert medical evidence, or by the evidence of any person cognizant of the circumstances, dis- position, daily life or actions of the testator. Such person is al- ways at liberty to testify to the facts within his knowledge, and is sometimes permitted to give his impression of the testator's general mental condition. And in any event the proof must be clear and convincing.^'' § 1007. II. The Age of Capacity. In most states this is fixed, for wills of real property, at twenty-one years ; in some, it is eigh- teen years; and in one (Georgia), fourteen years. ^^ The only point that need demand our attention under this head is whether testator of nonage has the same right as he would have in the case of a contract made by him to confirm the will when he comes of age, without republishing it or executing a new will. The English authorities lay down the rule, seemingly without qualification, that the mere ratification of the will by the infant testator, after he becomes of legal age to execute it, renders it a valid instrument, without a republication or a re-execution there- of.^' But while this may be true as to wills of personalty, the right to make which in general exists at common law, and is not de- pendent upon statute, it would seem that in the case of devises of land, which can be made at all only by virtue of statute, the devise Is void (not merely voidable) if the statute is not conformed to, and is therefore incapable of ratification, otherwise than by re- executing the will after the testator reaches the age prescribed by the statute for that purpose.^" 16 Peck V. Gary, 27 N. Y. 9, 84 Am. Dec. 220, note; Calhoun v. Jones, 2 Redf. Sur. (N. Y.) 38; Addington v. Wilson, 5 Ind. 137. 61 Am. Dec. 81, note ; Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235, note ; Niclaolas v. Kersh- ner, 20 W. Ya. 251 ; Couch v. Eastham, 29 W. Va. 784, 3 S. E. 23 ; Martin V. Thayer, 37 W. Va. 38, 16 S. E. 489; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668. 17 1 Redfield, Wills, 31, 32; Gray v. Rumrill, 101 Va. 507, 44 S. E. 697; Tucker v. Sandidge, 85 Va. 540, 8 S. E. 650; Porter v. Porter, 89 Va. lis. 15 S. E. 500; Potts v. House, 6 6a. 324, 50 Am. Dec. 333, note; Clary v. Clary, 52 N. C. 78 ; Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349, note. 18 3 Washburn, Real Prop. (6th Ed.) p. 506, where the statutes of wills, of the various states and territories are collated. 19 1 Williams, Ex'rs, 16; Bac. Abr. Wills (B). 20 1 Redfield, Wills, 19. (770) Ch. 40] WILLS FRAUD, FORCE OR UNDUE INFLUENCE. § 1008 § 1008. III. Effect of Fraud, Force or Undue Influence upon the Testator. It is manifest that a will, to be valid, must express and represent the real, as well as the last, will of the testator. Hence, where physical constraint is employed, the will is invalid. But it is in like manner void wherever it appears that the testator's freedom of volition has been impaired in consequence of his im- becility, some deception practised upon him, his undue confidence, his overweening affection, or otherwise. ^^ The principles controlling the doctrine of undue influence are necessarily vague, because of the extreme difficulty — not to say impossibility — of defining such influence. The cases also are nu- merous and various almost beyond parallel ; and if one should be- come familiar with them all, it would tend but little to disclose any salient principle which would resolve the next case. It is believed that the doctrine may be fairly summarized in the propositions following, namely : (1) Undue influence, in order to avoid a will, must annul the testator's freedom of purpose, and render the instrument the off- spring of the will of others, rather than of his own ; (2) Honest intercession, argument and persuasion addressed to the testator's understanding, conscience or affection, not controlling his will in opposition to his judgment or inclination, and not cou- pled with fraud or imposition, will not amount to undue influence, though urged beyond the bounds of strict propriety ; (3) Influence gained by kindness and affection will not be re- garded as undue, if no imposition nor fraud be practised, even though the testator be induced thereby to make an unequal or even an unjust distribution of his property; (4) The influence, in order that it shall be undue, must be ex- erted specifically, upon the very act of making a will in favor of particular parties ; and (5) It must mislead him to the extent of making a will essential- ly contrary to his duty. These propositions are sustained by a long array of authorities and decisions. ^^ 212 Min. Insts. 1047; 1 Jarman, Wills (oth Am. Ed.) 35, note 1; 1 Red- field, Wills, 508 at seq., 524, 535, 537 ; Simmerman v. Songer, 29 Grat. (Va.) 24. 22 2 Min. Insts. 1040, 1048; Hoover v. Neff, 107 Va. 441, 59 S. E. 428; 1 Redfield, Wills, 524 et seq. ; Small v. Small, 4 Greenl. (Me.) 220, 16 Am. Dec. 257 et seq., note. See, also, Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402, note; Gardner v. Gardner, 22 Wend. (N. Y.) 526, 34 Am. Dec. 340, 354, note; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Floyd V. Floyd, 3 Strob. (S. C.) 44, 49 Am. Dec. 629; Woodward v. James, 3 Strob. 552, 51 Am. Dec. 649 ; Potts v. House, 6 Ga. 824, 50 Am. Dee. 355. (771) § 1009 WILLS — CAPACITY TO TAKE DEVISE. [Oh. 40 § 1009. Capacity to Take under a Devise. There are no in- capacities in this respect imposed upon natural persons, except ahen enemies. Married women, aliens, lunatics, and infants may be devisees. The only other restrictions on capacity that we find, either in England or in this country are imposed upon corpora- tions.^^ § 1010. Same— Devise Void, Where, It is to Testator's Heir, to Take in Like Manner as He would Take as Heir. The law forbids a testator to devise lands to his heir, to take them in like manner as he would take them as heir, in order to prevent title by descent from being confounded with title by purchase. Such confusion, in feudal times, would have affected the tenure of lands, and at a later period would have impaired the interests of creditors, certain of whom could charge with their debts lands descended, but not lands de- vised, except in pursuance of a comparatively modern statute (3 & 4 Wm. & M. c. 14), known as the statute of fraudulent devises.^* The test by which we may determine the applicability of the doc- trine to any particular case is to strike out the devise to the heir, and if he would still take the same interest as the will gives him the devise is void. § 1011. Disclaimer of Title by Devisee. No one can be com- pelled to take land by devise. But the decisions in the different states are not in accord as to whether a disclaimer may be by parol or must be by deed.^^ § 1012. What Property is Devisable. While at common law a will passed what personal property the testator had at his death, under the statute of wills it was held that a will could only pass such real property as the testator owned at the time of making the will. It is believed that this doctrine has been changed by statute every- where in this country, so that a will may pass subsequently ac- quired real property. The point to be noticed in this connection is that some of the statutes make the will, in the absence of any expression of intention as to whether after-acquired lands should pass, speak as of the time of making the will, thus excluding after- acquired lands ; others make the will speak as of the time of the death of the testator, thus including such lands. In any case the question is one of intention, which must be gathered from the terms of the will, aided by the statutory presumption. =" 23 3 Waslibnrn, Real Prop. (Gth Ed.) § 2438. 24 2 MiD. Insts. 1045. See Ellis v. Tage, 7 Cnsh. (Mass.) 161. 2 5 Bryan v. Hyre, 1 Rob. (Va.) 94, 39 Am. Dec. 24G; Wilkinson y. Leland, 2 Pet. C27, 7 L. Ed. 542 ; 4 Kent, Com. 533. 2 3 Washburn, Real Prop. (6tli Ed.) § 2434. (772) Cll. 10] WILLS NECESSITY OF WIUTIXG. § IDli § 1C13. Formalities Required in the Execution of a Devise. In this respect, as in other matters relating to wills of lands, the stat- ute must be closely followed, or else the will is void. The statute that governs a will of lands is that of the state in which the land devised is situated.^'' In the analysis of every statute it will be necessary to consider the following heads : (1) The will must be in writing ; (2) the sig- nature of the testator; (3) the holograph will; (4) the attestation by the subscribing witnesses ; (5) the competency of the witnesses. § 1014. Same— The Will must be in Writing. It is not ma- terial upon what matter or stuff it be written, whether paper or parchment, linen, leather, stone, or metal, or in what tongue, or whether in print or manuscript, with ink or in pencil, or in what kind of handwriting, or character, so it is legible, and the meaning be capable of being deciphered. Neither is it material whether it be expressed at large, or by mere notes, usual or unusual, or wheth- er sums of money, etc., be written in words or in figures, provided the meaning be free from ambiguity and doubt.^^ A will, however, if in writing, need not be confined to one pa- per, but may consist of several testamentary papers of different dates, and the expression in the paper subsequently executed, "This is my last will," is not entitled to any weight, in the absence of a clause revoking former wills. In such cases, if the subsequent pa- per is merely supplemental, it will be treated as a codicil ; if par- tially conflicting, that of later date will operate to revoke the former only so far as the provisions of the two are conflicting or incom- patible, the court adopting that construction which will give ef- fect to all the testamentary papers, if possible, sacrificing the earlier papers only to the extent that they are clearly irreconcilable with the later. ^^ It is to be observed that the whole will must be in writing as the statute directs, and hence a gift (absolute on the face of the will) to one named as devisee is none the less absolute because ac- companied by verbal instructions creating a trust in the devisee for the benefit of another. Any unwritten part of a will is void and inoperative, in the absence of fraud. But if it appears upon the 27 But in many states it is enacted that a will executed according to the law of the state where the testator resides shall be valid in the enacting state. 3 Washburn, Real Prop. (6th Ed.) § 2427. Even in such case, how- ever, the validity of the will depends upon the lex rei sitae. 28 2 Min. Insts. 1011; Bac. Abr. Wills (D), 1; Masters v. Masters, 1 P. Wms. 425, 426; Dickenson v. Dickenson, 2 Phill. (2 Eng. Eccl.) 173. Will written on a slate admitted to probate. See 7 '\'a. Law Reg. 63. 2 9 Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. (773) § 1014 WILLS NECESSITY OF WEITING. [Ch. 40 face of the will that the property is given to the devisee by way of trust for another, while verbal instructions as to the beneficiary cannot be given effect, the beneficiary may sometimes be inferred from that portion of the will which is in writing; if not, then he holds it for the benefit of the testator's heirs or residuary devisee.^" But an exception to this rule is allowed in equity, where the dev- isee has procured an absolute devise to himself by promising the testator that he would hold it for the benefit of another, and after- wards refuses to perform his promise, claiming the property in his own right under the will and for his own benefit. This exception is allowed upon the ground of the trust resulting from the confidence reposed in him by the testator, and because not to do so would be to permit the devisee to profit by his own fraud, and to convert the statute of wills into a law for the consummation of fraud, instead of for its prevention.'^ It may be further observed in this connection that a written pa- per may be good as a will, though not in testamentary form or without the testator's knowledge that he has made a will. Thus, writings in the form of deeds, letters, bonds, notes, etc., have been held to be effectual as wills, where they were not intended to take efifect until after the maker's death, and actually represent the ex- pression of the party's last will, supposing always that the require- ments of the statute of wills have been complied with.'^ § 1015. Same— The Signature of the Testator. The English statute, 29 Car. II, c. 3, § 5, did not prescribe where the signature should be placed, and soon after the enactment of the statute, it was determined in the great case of Lemayne v. Stanley, ^'^ that it was immaterial, if the name were written by the testator himself, or by his direction and in his presence, where it appeared; whether at the top or bottom, or in the margin. This decision (made 33 Car. II, A. D. 1682) was often regretted, but never directly over- ruled, until it was done by statute both in England and in many states of this country. It was agreed that the object in requiring the testator's signature was twofold, namely: (1) To connect him with the paper; and (2) to afford proof of the finality, or completion 3 Sims V. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Kep. 772; Olliffe v. Wells, 130 Mass. 221. siPomeroy, Eq. Jur. §§ 430', 919, 1054; Sims v. Sims, 94 Va. 583, 27 S. E. 436, 64 Am. St. Rep. 772; Sprinlde v. Hayworth, 26 Grat. (Va.) 392; Towles V. Burton, Rich. Eq. Cas. (S. C.) 146, 24 Am. Dec. 409, note; Hoge V. Hoge, 1 Watts (Pa.) 163, 26 Am. Dec. 52, note. 3=2 Min. Insts. 1037; Wall v. Wall, 30 Miss. 01, 64 Am. Dec. 147; Tur- ner V. Scott, 51 Pa. 126. 33 3 Lev. 1; 2 Min. Insts. 1011. (774) Ch. 40] WILLS ATTESTATION. § 1018 of the testamentary intent. It was admitted, also, that the first object was satisfactorily attained by the testator's signature oc- curring anywhere in the paper. But it was insisted that the sec- ond object was wholly frustrated by allowing the signature to be anywhere else but at the end; and in response to the suggestion that the finality of testamentary intent was proved by the attesta- tion of the subscribing witnesses, it was said that the statute de- signed two safeguards, the attestation of the witnesses, and the signature also, and that the courts thwarted the design of the Legislature when they dispensed with either.^* Then, in 1850, came the statute (taken from 7 Wm. IV and 1 Vict. c. 26; see, also, 15 and 16 Vict. c. 24) requiring that the signature should be affixed in such a manner as to make it mani- fest that the name was intended as a signature ; and this legislation has been followed in many states of this countrj-, some of the stat- utes specifically requiring (as in New York) that the will be sub- scribed by the testator. ^^ The testator may "subscribe'' by making his mark.^° Nowhere in this country is a seal required to give validity to a will." § 1016. Same — Holographic Will. Some of our statutes dispense with the necessity for attesting witnesses altogether if the will is "holographic" — wholly written by the testator.'^ § 1017. Same — Attestation of Will by Subscribing Witnesses. Not only do the statutes prescribe the number of witnesses, but some of them are very strict in requiring that the witnesses shall see the testator sign and that they shall subscribe their names as witnesses in the presence of the testator and of each other. ^° It is important that the attestation clause should recite every fact in this regard made essential by the statute. § 1018. Same — The Competency of the Attesting Witnesses. The attesting witnesses (two or more in number) must be com- petent. The word employed in the statute,, 29 Car. II, c. 3, § 5, and in many of the American statutes, is "credible." However, it was universally agreed that "credible" meant no more and no less than "competent," so that no progress was made in substituting 34 2 Min. Insts. 1011, 1012; 2 Bl. Com. 370, 377, note (9). S5 See the compilation of statutes In 3 Washburn, Seal Prop. (6th Ed.) p. 506. 3 6 Van Hanswyck v. Wlese, 44 Barb. (X. Y.) 494. 3 7 See the compilation of statutes, supra. 3 8 See 3 "Washburn, Real Prop. (6th Ed.) p. 506 et seq. 3 9 See 3 Washburn, Real Prop. (0th EG.) p. 506 et seq. (775) § 1018 WILLS — ATTESTATION. [Oh. 40 the one word for the other, as some of the American statutes have done.*" It is useless to rehearse the conditions which, at common law, rendered a witness incompetent. Suffice it to say that the statutes removing- the incompetency of witnesses by reason of interest do not apply to the attesting witnesses to a will, as far as proving the will is concerned.*^ Hence, a beneficiary under a will should never be called to witness it. In England a devise to a witness is void ; but generally in this country such devise is vaHd if there are the requisite number of witnesses to prove the will in addition to such devisee, who is incompetent as a witness.*^ The competency required of the witnesses relates to the time of the execution of the will, and not to the time of probate." § 1019. The Revocation of Wills. Wills of all kinds are in their nature revocable, or ambulatory, as it is styled, and cannot by the most express words be made otherwise, although, to be sure, a contract may be disguised under the name and appearance of a will, which, according to the nature of contracts, will be irrev- ocable.** Originally in England, even wills of land might have been re- voked by words only; the statute of wills, 32 & 3-i Hen. VIII, being silent as to revocations.*" The English statute of frauds,*" how- ever, provided against the mischief which would have ensued, had the omission continued, by enacting that no devise in writing should be revoked, except by some other will, codicil, or writing, 40 2 Min. Insts. 1013. 413 Washburn, Real Prop. (6th Ed.) § 2431; Nixon v. Armstrong, 38 Tex 290. 4 2 3 Washburn, Real Prop. (6th Ed.) § 2431. 43 Holdfast V. Downing, 2 Str. 1254 ; Hatfield v. Thorp, 5 B. & Aid. 5S9 : Brograve v. Winder, 2 Yes. Jr. 636; 2 Min. Insts. 1013. See, also. Sears V. Dillingham, 12 Mass. 358; In re Holt's Will, 5G Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434; Iliggins v. Carlton, 28 Md. 115, 92 Am. Dec. 666 ; Gillis v. Gillis, 96 Ga. 1, 23 S. E. 107, 30 L. R. A. 143, 51 Am. St. Rep. 121. Thus it is admitted that, if the attesting witnesses are dead (and it is believed the same principle wonld ap]ply, if they should become otherwise incompetent), the will may be probated upon the testimony of oth- er witnesses as to the signatures of the attesting witnesses, etc., which could only be upon the theory that the incompetency of the attesting witnesses at the time of probate does not impair the validity of the will. See 2 Min. Insts. 1037. 44 2 Min. Insts. 1021; 6 Va. Law Reg. 389; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 784, note. 4 5 2 Min. Insts. 1021 ; Lawson v. ilorrison, 2 Dall. (Pa.) 286, 1 L. Ed. 384, 1 Am. Dec. 288, 2 Am. Lead. Cas. 043. 46 29 Car. II, c. 3, § 6. (776) Oh. 40] WILLS REVOCATION. § 1020 or by burning, tearing, cancelling or obliterating the same by the testator, or by another in his presence, and by his direction. But to these modes of revocation the courts of chancery added, by con- struction and implication, two others, namely, by a subsequent change of estate on the part of the testator, and by a subsequent marriage and birth of a child (or in case of a woman, subsequent marriage alone), which two latter circumstances, however, those courts held to afford a mere presumption, which might be repelled, either by other circumstances, or by declarations to the contrary.*' The subsequent change in the manner of holding the estate (as if he should sell and afterwards buy it back again) operated a conclusive revocation, not on the basis of the testator's intention,, which was wholly immaterial, but on the ground that the statute of wills did not enable one to devise what he had not at the mak- ing of the will, and the subsequent sale and repurchase was regard- ed, logically enough, as a new acquisition.''^ Statutes in this country have adopted a similar policy by pre- scribing the modes of revoking wills, and some of them define what shall be implied, as well as express revocations. § 1020. I. Express Revocation of Wills. The statutes are em- phatic in declaring that no express revocation can be made except in the modes prescribed, and, moreover, that a destruction or muti- lation, in order to work a revocation, must be with the intent to revoke. And, independently of statute, a valid conveyance by the owner of land, subsequent to the execution of his will, to the extent that it is inconsistent with the will, revokes it.*" "But if the conveyance be void or voidable, as by reason of the want of proper formalities, the want of capacity of the grantee to take, or for fraud, though in England it seems to have the effect of revoking the will," ^^ it is very doubtful if such effect would be given it in this country.^^ 47 Post §§ 1022, 1023; 2 Min. Insts. 1021; Bac. Abr. Wills (H), 1. *8 2 Mill. Insts. 1021. if> Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481 ; Collup v. Smith, S9 Va. 264, 1.5 S. E. 584. 50 1 Jarman, Wills (4th Ed.) 165 ; Montague v. Jeoffreys, Moore, 429 ; Hick V. Mors, Ambl. 215 ; Simpson v. Walker, 5 Sim. 1. It is said, how- -ever, that this rule is no longer in force in England, on the theory that, as a valid conveyance no longer effects a revocation if the title becomes re- vested in testator, one which is invalid should be given no greater effect. 2 TifEany, Real Prop. § 417; 1 Jarman, Wills, 133. Bi See Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456 ; Gra- ham V. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St. Rep. 339 ; Bennett v. <3addis, 79 Ind. 347 (777) § 1021 WILLS — REVOCATION. [Oh. 40' § 1021. Same — Express RevoGation Dependent upon Intention. Express revocation of every sort depends on intention, to be de- rived, when the revocation is by subsequent will or declaration in writing, from the words, interpreted according to law, and, when by the cancellation or destruction of the will, from the surrounding- circumstances and the act done. And although, when the revoca- tion is by words contained in writings, parol evidence is not admis- sible to alter their meaning, yet it may often be employed to prove circumstances which will rebut the prima facie inferences to be gathered from words or conduct, showing that the imputed inten- tion did not exist, or that it really applied to something else, and not to the instrument canceled, destroyed, or revoked. ^- Thus, if the revocation appear to have been founded on a mis- apprehension ' of existing circumstances, as upon a mistaken im- pression in respect to the death of a former legatee, whether it be derived from words or acts, the revocation is inoperative. For example, an English testator, by will dated August, 1790, gave a legacy of £500 each to the grandson and granddaughter of his sis- ter, the parties being described as residing in Virginia, and 5th Jan- uary, 1791, added a codicil revoking the bequest, the legatees "be- ing all dead." The legatees were not dead, and Lord Chancellor Loughborough held that the legacies were not revoked.^'^ In this case, if the mistaken assumption that the legatees were all dead had not appeared upon the face of the will as the reason for the rev- ocation, the fact that this was the real, though mistaken, cause- thereof could not have been shown by extrinsic evidence.^* So, also, if the ground for revocation, as stated by the testa- tor in the codicil, had not been the mistaken assumption of fact, but had been a belief that the legatees were all dead, upon which belief he acted, or if the revocation is stated to be based upon cer- tain advice given the testator, though the advice be grounded in misapprehension of the facts, since in these cases the testator is acting upon the belief or upon the advice, each of which is a real fact, the will is revoked.^" And so, when any of the words or clauses in a will are erased, merely for the purpose of substituting others which cannot legally 62 2 Min. Insts. 1025. See Moureby's Case, 1 Ilagg. (3 Eng. Ecel.) 378; Evans v. Evans, 10 Ad. & El. 228; Lawson v. lloi-rison, 2 Dall. (Pa.) 286,' 1 L. Ed. 884, 1 Am. .Dec. 288, 2 Am. Lead. Cas. 648, 649 ; Skipwith v Ca- bell, 19 Grat. (Va.) 758. 53 Campbell v. Freucb, 3 Ves. Jr. 321 ; 2 Jlin. lusts. 1025. 64 Skipwith V. Cabell, 19 Grat. (Va.) 758. 6 6 Skipwith T. Cabell, 19 Grat. (Va.) 758. (778) Ch. 40] WILLS — REVOCATION, § 1022 take effect, the purpose of revocation will be considered subsidiary to that of substitution, and both will fail of effect together.''^ This principle of "dependent relative revocation," as it is sometimes termed, has been applied where a testator has cancelled certain clauses of his will, with the intention of substituting others, but without re-executing the will after making the alterations, and the cancellation has been held not a revocation.-" And so where a tes- tator destroys his will under the mistaken impression that a pre- viously revoked will would thereby be rendered valid. °^ § 1022. Same — 1. Express Revocation by Subsequent Will or Codicil, Executed Like a Will. A subsequent will or codicil, duly executed, operates as a revocation of a former one in all cases where it contains an express clause revoking all former wills, or where it makes a different and incompatible disposition of the land devised by the former one.^^ The intention to revoke is what gives effect to the revocation, and therefore, where such an intent appears, the subsequent will or codicil will operate a revocation of the prior will, notwith- standing such subsequent will, etc., may be void from disability in the devisee to take, as where it is to the poor of the parish of C, or to an unincorporated association, etc., in which cases . the devise is ineffectual by reason of the uncertainty of the in- tended beneficiaries. Hence, also, if there be no clause of express revocation in the subsequent will, and the disposition of the prop- erty be not inconsistent with the formei will, there is no revocation of the former, but both are good.'"' From the principle just stated it follows that, although it ap- pears in proof, and be found, that there was a subsequent will, 08 2 Min. Insts. 1025; Short v. Smith, 4 East, 419; Locke v. James, 11 M. & W. 901; Eippin's Goods, 2 Curt. 332; Onions v. Tyrer, 2 Vern. 742. = 7 2 Tiffany, Real Prop. § 417; Wiusor v, Pratt, 2 Bred. & B. 650; Wil- boiirn V. Shell, 59 Miss. 205, 42 Am. Rep. 363 ; Gardner v. Gardner, 65 N. H. 2H(), 19 Atl. 651, 8 L. R. A. 383; In re Penniman's Will, 20 Minn. 245 (Gil. 220), 18 Am. Rep. 368. •-» Powell V. Powell, L. R. 1 Prob. & Div. 209. But the fact that the act of destruction is accompanied by an intention to make another will in the future does not prevent the act from effecting a revocation, though the in- tent to execute a new will be never carried out. 2 Tiffany, Real Prop. § 417; Brown v. Thomdlke, 15 Pick. (Mass.) 388; Semmes v. Semmes, 7 Har. & J. (Md.) 388; Banks v. Banks, 65 Mo. 432; Olmsted's Estate, 122 Cal. 224, 54 Pac. 745. 9 2 Min. Insts. 1022. 60 2 Min. Insts. 1022; Coward v. Marshall, Oro. (Eliz.) 721; Gordon v. Whitlock, 92 Va. 723, 24 S. E. 342. (779) § 1023 WILLS— REVOCATION. [Ch. 40 but it does not appear what were its contents, or whether it even revoked the previovis will, or made a disposition .of the property- incompatible therewith, there is no revocation, not even though it be found that the disposition was different, but in what par- ticulars is unknown. ^^ § 1023. Same — 2. Express Revocation by Declaration to That Effect, in Writing, Executed Like a Will. The English statute of frauds, 29 Car. II, c. 3, makes a difference between the mode of executing a will (as to which section 5 requires that the witnesses should subscribe in the presence of the testator), and a revocatory declaration in writing, as to which section 6 requires that the de- visor should sign in the presence of the witnesses, without requiring that the witnesses should subscribe in the testator's presence. And this difference led to some subtle distinctions. Thus, it was held that whilst a will might be revoked by a written declaration, al- though the witnesses did not subscribe in the testator's presence, yet it would not be revoked by an instrument intended to operate as a will, and containing a clause of revocation, which the attesting witnesses did not subscribe in the testator's presence, and that, not being valid as a will, for which it was designed, it could not be treated as a good writing to revoke the first will, it being the sole purpose of such a writing to revoke or destroy a previous will, and not to make a new disposition of property."^ The American statutes, however, seem to obviate all diversities of this kind, requiring the revoking declaration to be executed like a will, just as the revoking will or codicil is. § 1024. Same — 3. Express Revocation by Destroying the Will, with Intent to Revoke the Same (Animo Revocandi). The Ameri- can statutes declare that a will may be revoked by the destruction or mutilation of it by the testator, or some one in his presence and by his direction, with the intent to revoke. The statutes specify several acts in this connection, thus : "Cutting," "tearing," "burn- ing," "obliterating," "cancelling," "destroying the will or the sig- nature thereto." ^^ In order, by this means, to effect the revocation of a will, there must be done some one of the acts specified, however slight it 612 Min. Insts. 1023; Hitchins v. Basset, 2 Salk. 592, note (a); Good- right V. Harwood, 3 Wils. 497, 511, et seq. See Glasscock v. Smither, 1 Call (Va.) 479. 02 2 Min. lusts. 1023; Onions y. Tyrer, 1 P. Wms. 344, 2 Vern. 741. 8 3 See the compilation of statutes in 3 Washburn, Real Prop. (6th Ed.) p. 506 et seq. C780) oil. iO] WILLS — REVOCATION. § 1024 may be, and with the specified intent. Mere words and direc- tions, how pointed and peremptory soever, will not suffice."* Hence, where a blind man orders his will to be destroyed, and believes that it is destroyed accordingly^, but no act is done towards its destruction, it is not a revocation. "'^ On the other hand, any of the acts mentioned, however slight they may have been, if accompanied by the intent to revoke, and if the testator, with that intent, has done all he designed to do in pursuance of his purpose, will operate a revocation, but not if he abandons his purpose before he completes the act which he designed.""^ And where a will is found after the testator's death, among his repositories, mutilated or defaced, it is presumed to have been done by himself, and done animo revocandi."^^ So, also, where the tes- tator has his will in his own custody, and after his death it cannot be found, the presumption is that he destroyed it himself."' And if there be duplicates of the will in the possession of different per- sons, including the testator himself, and that copy in his own cus- tody be not found after his death, all are revoked, for all together constitute but one will."^ It appears that if a testator, who has duplicates of his will in his possession, cancels or destroys one of them, and preserves the other in its original condition, the presumption is in favor of a revocation ; but it may be rebutted by evidence that such was not the intent.'" But where he destroys or cancels the only copy in his possession, the presumption of revocation is so strong that nothing short of the most direct and positive evidence will justify 64 2 Mm. Insts. 1024; Pemberton v. Pemberton, 13 Ves. 290; Doe v. Har- ris, 6 A(J. & EI. 209 ; ilalone v. Hobbs, 1 Rob. (Va.) 346, 39 Am. Dec. 263. 6 5 Kent V. Mabaffey, 10 Ohio St. 204; Boyd v. Cook, 3 Leigh (Va.) 32. 66 2 Mill. Insts. 1024; Bibb v. Thomas, 2 W. Bl. 1064; Doe v. Perkes, 3 B. & Aid. 489. « - 2 Jlin. Insts. 1024. 6«2 Min. Insts. 1024; Knapp v. Knapp, 10 N. T. 276; Idley v. Bowen, 11 Wend. (N. Y.) 227; Foster's Appeal, 87 Pa. 67, 30 Am. Rep. 340; In re Valentine's Will, 93 Wis. 46, 67 N. W. 12. But this presumption may be rebutted by evidence that the will was accessible to others, who might have destroyed it, or by showing that the testator's intentions as to the dispos- al of his property remained unchanged till his death. 2 Tiffany, Real Prop. § 417; Chaplin, Wills, 3.58, 3G1 ; Schultz v. Schultz, 35 N. Y. 653, 91 Am. Dec. 88; Harris v. Harris, 10 Wash. .j5u, 39 Pac. 148. 69 2 Jlin. Insts. 1024; Shacklett v. Roller, 97 Va. 639, 34 S. B. 492; App- ling V. Eades, 1 Grat. (Va.) 286; L.iwson v. Morrison, 2 Dall. (Pa.) 286, 1 L. Ed. 384, 1 Am. Dec. 288, 2 Am. Lead. Cas. Gry.i et »vq. 70 2 Min. Insts. 1024; Pemberton v. Pemberton, 13 Ves. 310; Roberts v. Round, 3 Hagg. 548; Utterson v. Utterson, 3 Ves. & B. 122. (781) § 1025 WILLS EBVOCATION. [Oh. 40 the inference that an outstanding duplicate is not within the scope of the revoking intention.'^ § 1025. II. Implied Revocation of Wills — 1. Implied from a Subsequent Change of Estate. In England, as we have seen, im- plied revocations of wills arose, not out of the terms of the statute of frauds, 29 Car. II, c. 3, §§ 5, 6, but in spite of very positive pro- visions in that statute to the contrary, out of the construction of the courts of chancery. The courts, both of law and equity, from the time of the enactment of the statutes of wills, 32 & 34 Hen. VIII, had assimilated wills of lands to conveyances, and were, therefore, by that construction, obliged to consider them as embracing, not such lands as the testator might own at his death (as was the con- struction of wills of chattels), but such only as he possessed at the date of the will. Hence, if at any time after making his will he sold the lands then owned by him, the will could no longer be applicable to them, although he should afterwards reacquire them, and die seised thereof. And so, any alteration of the testator's es- tate after the making of the will would have in like manner the ef- fect to defeat the will, at least pro tanto ; that is, to the extent of the alteration. Thus arose one of the > instances of implied revo- cation.'^ § 1026. Same — 2. Revocation Implied from Testator's Subse- quent Marriage. Another constructive revocation the courts of equity derived, notwithstanding the peremptory language of the statute of frauds, 29 Car. II, c. 3, § 6, from considerations of do- mestic duty and convenience, where, after the making of the will, the testator, if a woman, married, or, if a man, married and had a child born. This, however, was founded upon a mere presumption of a purpose on the testator's part to put the will aside, in order to provide for persons who had become thus intimately connected with him, and in the woman's case upon the additional consider- ation that a will is in its nature ambulator}^, and, as after marriage she could not change it, if it were not revoked by the marriage, it would be practically not a will, but a grant." Seeing, therefore, that the implication is founded upon a pre- sumption of intention, the courts held that it might be repelled, as we have seen, by showing that no such intention existed, either 712 Min. Insts. 1025; Richard v. Munford, 2 Phil. 23- Calvin v Fraser 2 Ilagg. 266. "2 Min. Insts. 1025, 1026; Lawson v. Morrison, 2 Dall (Pa) 286 1 L Ed. 384, 1 Am. Dec. 288, 2 Am. Lead. Cas. 668 et seq. ; Bac Ibr Wills (H) 1 73 2 Min. Insts. 1026; Bac. Abr. Wills (H), 1; Spraage v. Stone, 2 Ambl! (782) ■Ch. 40] > WILLS REPUBLICATION. § 1028 by express declarations, or by circumstances, as tliat the wife and children were adequately provided for otherwise.^'' § 1027. Same — 3. Revocation Implied from Subsequent Birth of Pretermitted Children. "There are provisions in the statutes of many, if not all, of the United States for posthumous children, where none is made in the will of the testator, in some cases avoid- ing the will altogether, and also, in some cases, for children not named in the will when the omission is accidental. But a testator may omit, if he sees fit, to make any provision for any or all of his children, and the will nevertheless will be valid, if he clearly indi- cates thereby that such was his understanding and intention." '^ § 1028. Republication or Revival of Revoked Wills. What is meant precisely by the publication of a will is not entirely clear. It is supposed to be the declaration by which a person designates that he means to give effect to a paper as his will, although it does not seem to be necessary that he should describe it as being his will ; and his silently signing it, and procuring witnesses duly to attest it according to the statute, would doubtless be a sufficient declara- tion." Prior to the statute 29 Car. II, c. . 3 (which in terms placed the republication of wills on the same footing as their execution), any act or expression was sufficient to set up even a revoked will (not physically destroyed), which showed an intention to treat the will as a valid and subsisting instrument. Thus, in that state of the law, the subsequent verbal "allowance" of a will was held a suffi- cient republication to pass after-acquired lands, if the terms em- ployed adequately comprehended them, as was also a parol decla- ration that after-acquired lands should go with others previously devised. Republication, apart from and prior to the statute of frauds, was in fact the converse of a revocation, and, like it, was open to the whole range of parol evidence. ^^ Republication is of two kinds, express and constructive: Ex- press, where the testator repeats those ceremonies which are re- quired for the valid execution of a will, with the avowed desi-^n of republishing it; and constructive, where a testator, for some oth- 74 4 Kent, Com. 521, 523. 7B 3 Washburn, Real Prop. (6th Ed.) § 2474. Where a child is omitted in a will, the burden of proving that it was intentionally done is on the devi- see who claims under the will. Ramsdill v. Wentworth, 106 Mass. 320. 76 2 Min. Insts. 1029 ; Moodie v. Reid, 7 Taunt. 355 ; Lawson v. Morri- son, 2 Dall. (Pa.) 286, 1 L. Ed. 884, 1 Am. Dec. 288, 2 Am. Lead. Cas. 675. 77 2 Min. Insts. 1029; Beckford v. Parnecott, Cro. (Eliz.) 493; Barnes v. Crowe, 2 '^'es. Jr. 497 ; Lawson v. Morrison, 2 Dall. (Pa.) 286, 1 L. Ed. 384, 1 Am. Dec. 288, 2 Am. Lead. Cas. 674 et seq. (783) § 1029 WILLS— REVOCATION OP REVOKING WILL. [Cll. 40 er purpose, makes a codicil to his will, in which case the effect of the codicil, independently of statute, if it contains no internal evidence of a contrary intention, is to republish the will, and thus bring it down to the date of the codicil. ''* § 1029. Same— Effect of Revocation of Revoking Will. Inde- pendently of statute, it is a vexed question whether, if a subsequent will revokes a former will, and be itself revoked, the former is thereby revived ; and upon that point a reasonable distinction ap- pears to be taken between those acts of revocation of the first will which are not essentially testamentar};' in their nature, but absolute (e. g., by cancellation or destruction, etc., or b}- revocatory declara- tion in writing), and those which are contained in subsequent wills, etc., which in their nature are ambulatory and revocable — the bet- ter opinion being, as it seems, that the effect of an absolute or un- conditional revocation is final, and cannot be annulled or varied by any evidence of a subsequent change of intention, short of a repub- lication or re-execution ; whilst, if the revocation be by a subsequent will, its own ambulatory and revocable character is communicat-ed to all acts of which it is made the medium, and that, therefore, the cancellation or other revocation of a revoking will is to be regard- ed as a revival of that which it revoked.' ° § 1030. Lapsed Devises. Where a devisee dies before the tes- tator, the devise — at least that part of it which refers to the dead devisee — is at common law liable to become void, or, according to the technical phrase, to lapse. The general doctrine, at common law, is that a devise lapses in all cases where the devisee dies before the testator. And if the devise be to several, as tenants in common, and one of them dies in the testator's lifetime, his share lapses. But by force of statute, in some of our states, if a devise be made to a son or grandson of the testator, it will take effect in favor of his heirs, if he die before the testator.^" § 1031. Same — Effect of Lapse upon Residuary Clause. Inas- much as a will of lands is presumed at common law to speak the intention of the testator at the time he made the will, a residuary -s2 Mm. Insts. 1020, .1030; Lawson v. Morrison, 2 Dall. (Pa.) 28G, 1 L. Ed. 384, 1 Am. Dec. 288, 2 Am. Lead. Cas. i;7i;. 7 9 2 Min. Insts. 1030; Burtinshaw v. GiUiert, Cowp. 40; Goodrlght v. Glazier, 4 Burr. 2.")12, Cowp. 87; Walton v. Walton, 7 Johns. Cli. (X. T.) 258, 11 Am. Dec. 456; Lawson v. Morrison, 2 Dall. (Pa.) 2118, 1 L. Ed. 384, 1 Am. Dee. 288, 2 Am. Lead. Cas. 600 et seq. 80 3 Wasliliurn, Real Prop. (Oth Ed.) § 2448; 2 Min. Insts. 1040. And some statutes permit the issue of any devisee dying before the testator to take. (784) Oh. 40] ' WILLS PROBATE AND EBCORDATION. § 1032 devisee can take no more than what was then intended for him, and hence a. devise that lapses, or otherwise fails, goes to the testator's heir, and not to the residuary devisee.*^ § 1032. Probate and Recordation of Wills. The probate of a will is the official proof made before the proper and appointed tribunal of the due execution of the will, ascertaining it to be the genuine and lawful expression of the last wishes of the deceased in respect to his property, whereupon it is ordered to be recorded as and for the last will of the decedent, and the original is de- posited and preserved in the clerk's office of the court of probate. The student will observe that the construction of the will is not submitted to the court of probate. The sole subject for its con- sideration is whether the paper in question contains the last authen- tic expression of the decedent's wishes touching the disposition to be made of his property after his death, and whether the testator is competent to make such a will. The meaning of the paper, or whether it has any meaning at all, must be determined by other tribunals. Wills of chattels must always be admitted to probate, in order to avail anything to the parties who claim under them. Until they thus receive the sanction of the proper court, they cannot be recognized in any court of law or equity. But, as to a will of lands, probate is not indispensable to its validity. Such will may, in every case where there is occasion to use it in evidence, be formally proved to have been executed as the statute requires, and that will suffice (except as against bona fide purchasers of the land from the testator's heir, without notice of the will and for valuable consideration). But the will must be proved afresh in each case.*^ Considerations of expediency, however, require that a will of lands be probated — principally in order that the title may thus be made matter of record. 812 Min. Insts. 1009; 4 Kent, Com. 540 et seq. ; 2 Redfield, Wills, 115, 117, note 34; Durour v. Motteux, 1 Ves. Sr. 322; Doe v. Underdown, Wllles, 29G ; Cambridge v. Rous, 8 Ves. 2.5 ; Brown v. Higgs, 4 Ves. 708, .note b ; Jones V. Mitchell, 1 Sim. & Stu. 294; Prison Association v. Russell, 103 Vn. 563, 49 S. E. 966; Van Kleeck v. Dutch Ref. Church, 6 Paige (N. T.) 600; Id., 20 Wend. (X. Y.) 4.-i7. 82 2 Min. lusts. 1031 ; 2 Bl. Com. 508 ; Robinson, Forms, 285. MiNOE & W.Real Peop.— 50 (785) CHAPTER XLI. TITLE UNDER EXERCISE OF POWERS. § 1033. I. The Nature of Powers in General. 1034. Same — ^Definitions of Terms. 1035. II. The Scope of the Power. 1. In Respect to the Appointees. 1036. The Doctrine of "Illusory Appointment." 1037. 2. Scope of the Power in Respect to the Estates or Interests That may be Created. 1038. 3. Scope of the Power in Respect to the Conditions and Pur- poses Thereof. 1039. III. The Several Sorts of Powers. 1. Powers at Common Law. 1040. 2. Statutory Powers. 1041. 3. Powers Taking Effect- as Executory Limitations or in Equity. 1042. Application of Rule against Perpetuities to Appointments under Powers. 1043. 4. Powers of Revocation. 1044. 5. Powers Arising by Implication. 104.5. IV. The Exercise of the Power. 1. Effect of Proper Exercise of Power. 1046. 2. Powers Coupled with a Trust — Exercise of Power Man- datory. 1047. 3. Delegation of the Power. 1048. 4. Exercise of the Power in Case of Several Joint Donees. 1049. 5. aianner of Exercising the Power. 1050. 6. The Exercise of a Power is a Question of the Donee's In- tention. 1051. 7. Time of Exercise of Power. 1052. V. Exercise of the Power Not in Accordance with Its Terms. 1. Effect of Failure to Exercise the Power. 1053. 2. Excessive Exercise of the Power. 1054. 3. Defective Exercise of Power — Aided in Equity. 1055. 4. Fraudulent Exercise of Power. 1050. VI. Extinction or Suspension of Powers — Discussion Outlined. 1057. 1. Final and Complete Exercise of the Power. 10.58. 2. Cessation of Purposes for Which Power was Created. 1059. 3. Failure of Condition Precedent to the Exercise of the Power. 1060. 4. Donee Estopped to Exercise the Power. 1061. 5. Release of Powers. § 1033. I. The Nature of Powers in General. In the absence of restrictions imposed by tlie instrument creating an estate in land — which restrictions are regarded with more or less disfavor by the law"^ — the power to ahene and dispose of one's interest in land is incident to the right of ownership itself. 1 Ante, § 516 et seq. (786) ■Ch. 41] POWER — NATURE IN GENERAL. § 1033 But powers of disposition are frequently conferred upon per- sons, which are entirely out of proportion to their interests in the land, being conferred sometimes, indeed, upon persons who have no interest whatever in the land itself, but only the power to dispose of it or to name (or appoint, as the technical phrase is) the persons who shall take interests therein, or upon persons whose interests in the land would of themselves justify a very lim- ited power of disposition, but who are given extraordinary pow- ers in the exercise of which they may dispose of interests in the land greater than they themselves possess. Thus, while it is a general principle of equity that one who pur- chases land from a trustee with notice of the trust is himself noth- ing more than a constructive trustee, holding the legal title for the benefit of cestui que trust,'' yet cases frequently arise where a power of sale or of lease is given expressly or by implication to a trustee, in which case he may sell or lease the land to a pur- chaser, and the latter will take a good title, even though he has notice of the trust, not because of any inherent right of disposition in the trustee, but by reason of the power of sale or lease conferred upon him.^ Such a power is always conferred upon the trustee in a deed of trust to secure debts, and is of frequent occurrence in trusts rfor married women and other persons under disability, when the trust is an active trust and the trustee vested with considerable discretion. ■* Instances of it are found quite often, also, in wills, where land is devised to the executor, with power to sell for the payment of debts or legacies, or for the best interests of the es- tate committed to his care ; the executor in such cases holding the legal title to the land as a trustee.*^ But powers are by no means confined to trustees. They are often to be found vested in tenants for life or of lesser estates, who may be authorized to convey or lease greater interests than they themselves possess; the general purpose being to enable the ten- ant to obtain terms of sublease, etc., more advantageous to himself and to the land than might be secured if he were confined to the disposition of his own interest alone." 2 Ante, § 434 et seq. 3 1 Tiffany, Real Prop. § 276; Collins v. Foley, 63 Md. 158, 52 Am. Rep. oO.j ; Wentz's Appeal, 106 Pa. .301. 4 Wallce V. Moore, 95 Va. 729, 30 S. E. 374. B 1 Tiffany, Real Prop. §§ 273, 276 ; post § 1047. So a power of appoint- ment may be vested in one who already has the fee-slniple estate for his own benefit. Shearman v. Hicks, 14 Grat. (Va.) 96. 6 2 Min. Insts. 816. (787) § 1033 POWER — NATURE IN GENERAL. [Ch. 41 Such powers as those mentioned in the two preceding para- graphs, where the power is given to one already possessing an in- terest in the land upon which the power is to be exercised, are known as "powers coupled with an interest," and are essentially different in some respects from a "naked" or "bare'' power, to be exercised by one who has no title to, nor interest in, the land itself.'' A "naked" or "bare" power may be conferred upon one who has no interest whatever in the land itself, as where a testator, without devising the land to his executor, confers upon the latter by his will the power to sell the same for the payment of debts or legacies.' So, also, if A. conveys or devises land to such per- sons as B. shall appoint by deed or will, B. possesses a "naked" or "bare" power. In such a case, B. though himself entitled to no estate in the land, has a general power of appointment or disposi- tion, which could scarcely be greater if he owned the fee simple." § 1034. Same — Definitions of Terms. A "power," in the sense here used, may be defined as a proprietary right in a person to cre- ate an estate or interest in the land or to impose a lien or charge thereon, which, when exercised, takes effect in diminution, deroga- tion or destruction of the rights of others or of the person himself in the land, by reason of the power alone, without reference to the person's ownership of the estate.^" The creator of the power is usually designated the "donor of the power" ; the person upon whom the power is conferred is the "donee of the power"; while the person in favor of whom a power of appointment is exercised is the "appointee," and the act of ex- ercising it is the "appointment." ^^ 7 1 Tiffany, Real Prop. § 279 ; Godolphin v. Godolpliin, 1 Ves. gr. 21 ; Jlarlborougli v. Godolpliin, 2 Ves. Sr. 60; Loring v. Marsh, 6 Wall. 337, 334, 18 L. Ed. 802; Peter v. Beverly, 10 Pet. 532, 9 L. Ed. 522; Franklin V. Osgood, 14 Johns. (N. Y.) .553; Gray v. Lynch, 8 Gill (Md.) 403. Powers of appointment, etc., coupled with an interest, are, however, to be carefully distinguished from powers of attorney (agency) coupled with an interest; the latter being of importance only in connection with the question wheth- er the agency is revoked by the death of the principal, whereas a power of appointment, etc., conferring as it does a proprietary right, is usually ir- revocable, whether coupled with an interest or not. See Hunt v. Rousma- nier, 8 Wheat. 174, 5 L. Ed. 589 ; Sulphur Mines Co. v. Thompson, 93 Va. 20-1, 25 S. E. 232. A brief discussion of powers of attorney to execute deeds will be found, ante, § 888. 8 1 Tiffany, Real Prop. § 273. Post, § 1035 ; Freeman v. Butters, 94 Va. 400, 26 S. E. 845. 10 1 Tiffany, Real Prop. pp. 603, 604. 11 1 Tiffany, Real Prop. § 277. (788) Ch. 41] POWER — SCOPE AS TO APPOINTEES. § 1035 § 1035. II. The Scope of the Power— 1. In Respect to the Ap- pointees. Powers may be either general or special (or "particular" or "limited"). A power is general, if the donee is thereby author- ized to dispose of any estate or interest in the land, and to any person whatsoever; while it is a special, particular or limited pow- er if, by the instrument creating it, the appointment is restricted to particular persons or a particular class of persons, or is restricted as to the estates or interests in the land that may be created, or as to the purposes or conditions of its exercise. ^^ In the case of a general power, since there is no restriction upon the possible appointees, the donee of the power may name himself as the appointee. ^^ Should he do so, or should he appoint to a volunteer, the exercise of the power cuts off the rights of those to whom the estate is limited in default of appointment, and the land becomes subject to the donee's debts, as if it were his own.^* But the mere potential right of the donee of the power to make himself the appointee, unless and until it is actually exercised in his own favor (or in favor of a volunteer), does not, at common law, constitute him the owner of the property or render it liable for his debts ; for he may make no appointment at all, either to him- self or to another, and until the power is exercised the person who is to take in default of appointment has at least an equal equity with the donee's creditors and, in addition, the legal title. ^° In the case of a special power, on the other hand, where the limitation upon the exercise of the power relates to the possible appointees, the appointment can be made only in favor of the specified person or persons, or the specified class of persons; for instance, a power given by will to B. to appoint among the tes- tator's children cannot be lawfully exercised by an appointment to his sons-in-law or grandchildren.^" A special power to appoint among a class of persons, such as children, may vest a discretion in the donee of the power to select among members of the class, in which case the power is termed 12 1 Tiffany, Real Prop. § 277. 13 1 Tiffany, Real Prop. § 281; HicUs v. "Ward, 107 N. 0. 392, 12 S. E. 318, 10 L. R. A. 821; Beck's Appeal, 116 Pa. -547, 9 Atl. 942. 14 Freeman v. Butters, 94 Va. 406, 26 S. E. 845. 15 Freeman v. Butters, 94 Va. 406, 26 S. E. 845; Holmes v. Coghill, 7 Ves. 499 ; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908 ; Crawford v. Lang- maid, 171 Mass. 309, 50 N. E. 606; Ryan v. Mahan, 20 R. I. 417, 39 Atl. 893; Gilman v. Bell, 99 111. 144. 16 2 Min. Insts. 820; Smith v. Lord Camelford, 2 Ves. Jr. 698; Hud- son T. Hudson, 6 Munf. (Va.) 356; Kniglit v. Tarbrough, Gilmer (Va.) 31; Morris v. Owen, 2 Call (Va.) 526; Austin v. Oakes, 117 N. Y. 577, 23 N. E. 193 ; Smith v. Hardesty, 88 Md. 387, 41 Atl. 788. (789) § 1036 POWER — "Illusory appointment." [Ch. 41 an "exclusive" power, because the donee has the power to exclude certain members of the class from participation in the appoint- ment.^' But more usually, perhaps, the power is "nonexclusive"; that is, the donee is given no discretion nor authority to exclude any member of the class altogether, however it may be as to his authority to give unequal shares to the various members of the class. Instances of nonexclusive powers arise in case of powers to appoint "to" or "amongst" or "between" all the children of such a person, or "amongst the testator's sons in such shares as the donee shall determine," etc.^^ § 1036. Same— The Doctrine of "Illusory Appointment." In the case of nonexclusive powers, such as are described in the pre- ceding section, the question sometimes arises as to the right of the donee to give a mere nominal share to one or more members of the class, or, in technical phrase, to make an "illusory appointment" to certain members of the class. In England, independently of statute, the rule was established in equity that such an "illusory appointment" is invalid. It was never required, however, that there should be an equal distribu- tion amongst the class, but only that a substantial share be allot- ted to each member ; a large latitude of discretion being allowed the donee of the power. ^^ But this doctrine has now been abro- gated in England by a statute which, in effect, authorizes a donee in all such cases to make an appointment excluding members of the class, if he sees fit to do so, unless a minimum share for each member of the class is mentioned in the original instrument creat- ing the power.^" In this country the former English doctrine with regard to il- lusory appointments generally obtains. ^^ 17 1 Tiffany, Real Prop. § 281; Ingraham v. Meade, 3 Wall. Jr. 32, Fed. Cas. No. 7,045 ; Graeff v. De Turk, 44 Pa. 527 ; Hulwig v. Fenner, 9 R. I. 410; City of Portsmontla v. Shackford, 46 N. H. 423. IS 1 Tiffany, Real Prop. § 281 ; Wilson v. Piggott, 2 Ves. Jr. 351 ; Knight v. Yarbrough, Gilmer (Va.) 27; Hudson v. Hudson, 6 Munf. (Va.) 352; Thirasli- er V. Ballard, 35 W. Va. 524, 14 S. E. 232; Hatchett v. Hatcliett, 103 Ala. 556, 16 South. 550 ; Wright v. Wright, 41 N. J. Eq. 382, note, 4 Atl. 855. i»2 Min. Insts. 820, 821; Sugden, Powers, 449, 938; 2 Th. Co. Lit. 590, note (B) ; Butcher v. Butcher, 1 Ves. & B. 79. 20 37 & 38 Vict. e. 37, § 1. An earlier English statute sanctioned illusory appointments. See Gainsford v. Dunn, L. R. 17 Eq. 405. 212 Min. Insts. 820, 821; McCamant v. Nuckolls, 85 Va. 331, 12 S. E. 160; Knight V. Yarbrough, Gilmer (Va.) 27; Thrasher v. Ballard, 35 W. Va. 524, 14 S. E. 232 ; Hatchett v. Hatchett, 103 Ala. 556, 16 South. 550 ; Cruse V. McKee, 2 Head. (Tenn.) 1, 73 Am. Dec. 186 ; Degman v. Degman, 98 Ky. 717, 34 S. W. 523. But in some of the states the donee is regarded as hav- (790) Ch. 41] POWER SCOPE AS TO ESTATE CREATED. § lOSfl If the appointment be set aside as illusory, or for other cause, or if no appointment is made, the fund is to be distributed equally in equity among all the members of the class ; the power of appoint- ment in such case being in the nature of a trust." § 1037. Same — 2. Scope of the Power in Respect to the Es- tates or Interests That may be Created. A power may be special (or particular or limited) by reason of restrictions imposed upon the donee with respect to the estate he may create, as well as with respect to the appointees. In general, the terms in which the power is expressed will de- termine what kind and quantity of estate the donee may create; the tendency being towards liberality in the construction of the terms. Thus a power to divide property among the children of the donor of the power is held to confer a discretion upon the donee, and he is not bound to give a fee simple to each child, but may appoint to one for life, with a remainder or executory limi- tation to another.^" So a power to appoint a fee-simple estate or a power in gen- eral terms will usually authorize an appointment of a freehold less than a fee simple,-* or the creation of a mortgage. -° So, also, a power to sell land (as in case of an executor or trustee) carries with it, without express mention, the power to make a conveyance of the land sold in fee simple to the purchaser.^" But a mere power of sale, in the absence of evidence of a contrary intent on the part of the donor of the power, does not usually au- thorize a mortgage of the land;^'' nor does it authorize an ex- change, but only a sale for money. ^^ iug the right to make mere nominal appointments to some members of the class. Graeff v. De Turk, 44 Pa. .527; Fronty v. Godard, Bailey, Ecj. (S. 0.) 517; Lines v. Darden, 5 Fla. 51. 22 2 Min. Insts. 821; 2 Th. Co. Lit. 590, 591. 23 1 Tiffany, Real Prop. § 281; Sugden, Powers, 682; Beardsley v. Hotch- kiss, 96 N. Y. 201, 218. See Lawrence's Estate, 136 Pa. 354, 20 Atl. 521, 11 L. E. A. 85, 20 Am. St. Rep. 925. 2*2 Min. Insts. 820; 1 Tiffany, Real Prop. § 281; Bovey v. Smith, 1 Vern. 84. 2 5 1 Tiffany, Real Prop. § 281 ; Thwaytes v. Dye, 2 Vern. 80 ; Asay v. Hoover, 5 Pa. 21, 45 Am. Dec. 713; Hicks v. Ward, 107 N. C. 392, 12 S. E. 318, 10 L. R. A. 821. 26 1 Tiffany, Real Prop. § 281 ; Sugden, Powers, 398 ; Hemhauser v. Deck- er, 38 N. J. Eq. 426. 27 1 Tiffany, Real Prop. § 281; Sugden, Powers, 425; 2 Perry, Trusts, § 768; Hoyt v. Jaques, 129 Mass. 286; Perry v. Lalble, 31 N. J. Eq. 566; Bloomer v. Waldron, 3 Hill (N. X.) 361; Butler v. Gazzam, 81 Ala. 491, 1 2 8 See note 28 on following page. (791) § 1038 POWER — SCOPE AS TO CONDITIONS AND PURPOSES. [Ch. 41 § 1038. Same — 3. Scope of the Power in Respect to the Condi- tions and Purposes Thereof. A power may also be special by rea- son of the restricted purposes or conditions for or upon which the power is to be exercised. Thus, if there be a condition precedent to the exercise of the power it must be complied with, or else the power cannot be validly exercised. Hence, if a power of sale, such as that given to a trus- tee in a deed of trust to secure debts, is to be exercised only upon the request or with the assent of another, a sale without such re- quest or assent is invalid. ^^ So a power to sell land, when neces- sary for the support of a certain person, is not properly exercised if there be no such necessity.^" So, also, a power in a trustee or executor to sell land for the payment of debts is not validly exercised if there are no debts to be paid.'^ § 1039. III. The Several Sorts of Powers— 1. Powers at Com- mon Law. It is in general repugnant to the common-law notions of conveyancing (which demanded that freehold estates in land should be created by livery of seisin) to permit the creation of es- tates by means of the exercise of a power, other than such as is merely inherent in the ownership of the land itself; and hence, so South. 16 ; McMillan v. Cox, 109 Ga. 42, .34 S. E. 341 ; Wilson v. Maryland Life Ins. Co., 60 Md. 150; Stokes v. Payne, 58 Miss. 614, 38 Am. Rep. 340; Trice v. Courtney, 87 Mo. 387, 56 Am. Rep. 453. But it is otherwise If the design of the power of sdle is to raise money for some particular purpose or to pay off charges upon the land. Sugden, Powers, 425; Kent v. Morri- son, 153 Mass. 137, 26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616 ; Faulk V. Dashiell, 62 Tex. G42, 50 Am. Rep. 542; Loebenthal v. Raleigh, 36 N. J. Eq. 169 ; Devaynes v. Robinson, 24 Beav. 86. 28 1 Tiffany, Real Prop. §281; 2 Perry, Trusts, § 769; Woodward v. Jew- ell, 140 U. S. 247, 11 Sup. Ct. 784, 35 L. Ed. 478; Russell v. Russell, 36 N. Y. 581, 93 Am. Dec. 540 ; City of Cleveland v. State Bank, 16 Ohio St. 236, 88 Am. Dec. 445. 2 9 1 Tiffany, Real Prop. § 285; Sugden, Powers, 252; Richardson v. Crock- er, 7 Gray (Mass.) 190; Gordon v. Gordon (Tenn. Ch. App.) 46 S. W. 357. 3 Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Minot v. Prescott, 14 Mass. 496 ; Hull v. Culver, 34 Conn. 403 ; Scheldt v. Crecelius 94 Mo. 322, 7 S. W. 412, 4 Am. St. Rep. 384. 311 Tiffany, Real Prop. § 285; Sweeney v. Warren, 127 N. Y. 420, 28 N. E. 413, 24 Am. St. Rep. 468; Hemphill v. Pry, 183 Pa. 593, 38 Atl! 1020: Moores v. Moores, 41 N. J. Daw, 440 ; Ward v. Barrows, 2 Ohio St. 242. But a purchaser, it seems, is not charged with notice of the nonexistence of debts, unless the power is so tardily exercised as to raise a presumption of the pay- ment of the debts from lapse of time. 1 Tiffany, Real Prop. § 285; Smith V. Slclntyre, 37 C. C. A. 177, 95 Fed. oSo ; Rutherford v. Clark, 4 Bush (Ky ) 27; Doran v. Piper, 104 Pa. 430, 30 Atl. 306; Smith v. Hennlng, 10 W Va. 596. (792) Ch. 41] POWER EFFECT AS EXECUTORY LIMITATIONS. § 1041 far as freehold interests in land are concerned, the creation of them by the exercise of such powers was in the main unknown to the original common law/^ prior to the introduction of uses. To this general rule there was, perhaps, one exception, in the case of a power given in a will to executors, authorizing them to sell lands for the payment of debts or legacies. Such powers did, indeed, exist at common law in those rare cases where land was devisable by the local custom of particular places; ^^ and after the passage of the statute of wills (32 Hen. VIII, c. 1, explained by 34 Hen. VIII, c. 5), making lands devisable generally, the validity of such powers in wills continued to be recognized.^* It is prob- able, however, that, instead of treating this kind of power as an ex- ception to the general common-law principle, it should be classi- fied, like other powers in wills, under the head of powers of ap- pointment taking effect as executory limitations, presently to be described.^'* § 1040. Same — 2. Statutory Powers. Powers to aliene land are said to be "statutory," when they are conferred by statute. In such case, an alienation under the exercise of the power derives its ef- fect from the statute, not from the instrument through or by which the alienation is made.^^ Instances of such powers may be found in the English statute conferring upon life tenants the power to make leases extending beyond their own lives,^' or in the bankruptcy act of Congress, conferring upon the assignee in bankruptcy the power to sell the bankrupt's property.^* § 1041. Same — 3. Powers Taking Effect as Executory Limita- tions or in Equity. One of the advantages of uses, as they existed in England prior to the statute of uses, was that they set at defiance the common-law rules flowing from the necessity of livery of seisin to create freehold estates, and permitted such estates (in the nse) to spring up in futuro, without any preceding particular estate, or to shift from one to another upon the happening of some future con- tingency.^^ 3 2 Ante, §§ 136, 399. 3 3 Ante, §§ 6, 1003; 1 Tiffany, Real Prop. S 273; Co. Litt. 112b. 34 1 Tiffany, Real Prop. § 273 ; Co. Litt. 112b ; Townsend v. Walley, Moore, 341. 3 5 Post, § 1041. 3 6 Sugden, Powers, 45; 1 Tiffany, Real Prop. § 274. 37 1 Tiffany, Real Prop. § 274. 3s Act July 1, 1898, c. 541, § 70, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451) ; Collier, Bankruptcy, 454. 8 8 Ante, § 399. (793) § 1041 POWEE EFFECT AS EXECUTORY LIMITATIONS. [Ch. 41 Among other methods of creating such future estates in uses were recognized appointments to future uses, whereby the grantor would convey land to a feoflfee to hold to such uses as he (the feoffor) or another should appoint in the future by some desig- nated method, as by deed or by will ; the appointee, when thus designated, taking the use by virtue of the original feoffment to uses, and not by virtue of the deed or the will appointing him. When the statute of uses *" was passed, which converted uses into legal estates, this form of conveyance continued of frequent occurrence, with the same results, save that the appointee would thenceforward take a legal estate, where before he would have taken a mere use or equitable interest.*^ A similar consequence flowed from the enactment of the stat- ute of wills, five years later,*^ so that thereafter land might be devised to vest in futuro according to the direction or "appoint- ment" of a person named in the will.^'' In both these cases there is in effect an executory limitation to a person to be named in futuro; and upon an appointment by the donee of the power, the appointee takes an interest in the land, as if there had been an executory limitation to him in the original instrument creating the power. In other words, the deed, will or other instrument by or through which the donee exercises the power is not the appointee's source of title (which is to be found in the original instrument of the donor of the power), but is merely the vehicle or channel through which the appointee's claim to the property under the original instrument is assured.** Thus, one may convey land to A. and his heirs to such uses as A. (or B., or even the grantor himself) may appoint, and upon the making of the appointment in favor of C. and his heirs, the use, prior to the statute of uses, and since that statute (in England) the land itself, vests in C. in fee simple by way of springing limita- tion, just as if the original limitation had been to him ; the fee re- sulting, until appointment, to the grantor or his heirs.* ^ Similarly, A. may devise land to such persons and for such estates as B. may appoint, and if B. appoints to C. in fee or for *o 27 Hen. VIII, c. 10. *i 2 Min. Insts. 817 ; 1 Tiffany, Real Prop. § 275. *2 32 Hen. VIII, c. 1 ; 34 Hen. VIII, c. 5. 43 2 Mm. Insts. 818 ; 1 Tiffany, Real Prop. § 275 ; Sugden, Powers, 199 ; Townsend v. Walley, Moore, 341. 4 4 Post, § 1045; 2 Min. Insts. 821; Sugden, Powers, 31, 147, 196; 2 Th. Co. Lit. 590, note (B) ; Doolittle v. Lewis, 7 T. R. 48 ; Jackson t. Daven- port, 20 Johns. (N. Y.) 551. 4B 1 Tiffany, Real Prop. § 275. (794) Ch. 41J POWER EULE AGAINST PERPETUITIES. § 1042 life the estate named will vest in C. as by an executory devise under A.'s will.*" ;,;, It is to be observed, however, in accordance with the general rule, that if the future estate thus created by the exercise of the power of appointment can take effect as a rejjiainder, it must do so, and thenceforward cannot be sustained .a§, an, executory limi- tation.*^ Where a future use is executed by the statute of uses, it is converted into a legal estate, and is good by way of an executory limitation ; if unexecuted by the statute of uses, it remains a use or equitable estate ; but in either event, the future estate is good, and is recognized in equity, if not at law; and so it is with other sorts of equitable estates. Hence we sometimes find future equita- ble estates created under the exercise of powers, which, while not taking effect strictly as executory limitations under the statutes of uses or wills, are nevertheless good, and governed by rules analo- gous to those controlling powers of appointment taking effect as executory limitations. These are usually designated "equitable" powers.*' § 1042. Same — Application of Rule against Perpetuities to Ap- pointments under Powers.. The rule against perpetuities is as fully applicable to executory limitations created by the exercise of a power as to other sorts of executory limitations. Whether such an executory limitation does violate the rule is to be determined in part by an examination of the terms of the instrument creating the power and in part by the terms of the instrument by or through which the power is exercised. If, by the terms of the original instrument creating it, the power may by possibility be exercised at a period later than that prescribed by the rule, the power cannot be validly exercised at all; for the rule declares that the limitation is invalid unless it be so limited that it must necessarily vest, if at all, within a life or lives in being, ten months and twenty-one years thereafter.** Hence a power given to a life tenant, yet unborn, to appoint by will (or, it would seem, by deed), is void, since the appointment might be made at a time beyond the legal period. ^^ 4« 1 Tiffany, Real Prop. § 275. *7Aiite, § 674; 1 Tiffany, Real Prop. § 273; Wliitby v. Mitchell, 42 Ch. Div. 494, 44 Ch. Div. 85. 48 2 Min. Insts. 818; 1 Tiffany, Real Prop. § 276; Sugden, Powers, 200. 4»Ante, § 698; 1 Tiffany, Real Prop. § 294; Gray, Perpet. § 475; Bris- tow V. Boothby, 2 Sim. & S. 465; Woodbridge v. Winslow, 170 Mass. 388, 49 N. E. 738. 6 Morgan v. Gronow, L. R. 16 Eq. 1. (795)' § 1042 POWER RULE AGAINST PERrETUITIES. [Oil. 41 Supposing the power to be one which, by the terms of its crea- tion, must be exercised, if^ at all, within the time fixed by the rule against perpetuities, the question yet remains, in case it be exercised by the appointment of a future estate (measured from the date of the exercise of the power), whether the future estate thus created is valid under the rule against perpetuities, and at what time the computation of the period is to begin. If the limitation in question be created under the exercise of a special power, the period fixed by the rule begins to run at the time of the creation of the power, not at the time of its exercise.^'- But if the power be general, not restricted as to time, estate or objects, and exercisable either by conveyance or by will, this is equivalent, it is said, to absolute ownership, and its exercise is on the same footing as an original conveyance. Consequently the period fixed by the rule in such cases is to be computed from the time of the exercise of the power, and not from its creation. ^^ § 1043. Sanae — 4. Powers of Revocation. Growing out of, and closely analogous to, powers of appointment taking effect as ex- ecutory limitations are powers of revocation. A power, to reside in the grantor, to revoke a common-law con- veyance was deemed by the common law repugnant to the convey- ance, and was never admitted."'' But upon the introduction of uses, which comprised in essence merely the right to direct the person seised of the legal estate in what manner and to whom 'he should convey the land, it was concluded that there was no repugnancy in permitting the person creating the use to follow the bent of his will, and, if he reserved the power to revoke, to extend that indul- gence to him accordingly; the Court of Chancery affecting great liberality in directing the uses according to the apparent intent of the parties. And that doctrine having been fully established prior to the statute of uses, and that statute proposing that cestui que use 51 1 TifCany, Real Prop. § 294 ; Gray, Perpet § 514 et seq. ; Sugden, Pow- ers, 396; Lawrence's Estate, 136 Pa. 355, 20 Atl. 521, 11 L. B. A. 85, 20 Am. St. Rep. 925; In re Boyd's Estate, 199 Pa. 497, 49 Atl. 299; Thomas V. Gregg, 76 Md. 169, 24 Atl. 418. And if the power is to be exercised by will only, though it is general in point of appointees, estate, and copditions and purposes, it is regarded as a special power within the doctrine. See Gray, Perpet. §§ 526, 526b; In re Powell's Trusts, 39 L. J. Ch. 188; Law- rence's Estate, supra ; Genet v. Hunt, 113 N. Y. 158, 21 N. E. 91. But see Rous V. Jackson, 29 Ch. Div. 521 ; In re Flower, 55 L. J. Ch. 200. 52 1 Tiffany, Real Prop. § 294; Gray, Perpet. §524; Bray v. Bree, 2 01. & F. 453; Mifflin's Appeal, 121 Pa. 205, 15 Atl. 525, 1 L. R. A. 453, 6 Am. St. Rep. 781; Lawrence's Estate, 136 Pa. 355, 20 Atl. 521, 11 L. R. A. 83, 20 Am. St. Rep. 925. 63 2 Min. Insts. 815. (796) Ch. 41] POWEE — BT IMPLICATION. § 1044 should have the land as before he had the use, the legal estate thus created under the statute of uses has always been deemed rev- ocable, if the right to revoke is reserved, in like manner as the use had been before.** By means of a power of this sort the grantor of an estate may reserve to himself, or even to a third person, the power to re- voke the grant, and to limit new uses in lieu thereof; as in case of a conveyance by A. to the use of B. and his heirs, reserving a power in A. to revoke the use thus limited, in which case B.'s es- tate in fee will terminate on the exercise of such power. °'' And so, in case of a devise to T. and his heirs to his own use for his life, and after his death to the use of C. and his heirs, but with pow- er in T., by deed or will, to revoke the use in favor of C. and his heirs, and to litnit new uses in lieu thereof, in which case C.'s in- terest terminates upon the exercise of T.'s power of revocation', and the fee shifts over to T.'s appointees. *° § 1044. Same — 5. Powers Arising by Implication. Powers sometimes arise merely by implication from the language used in a conveyance or will. Thus, in case of a trustee or executor ap- pointed by will, a power to sell land, though not expressly given by the will, may be implied from its provisions, if they impose up- on him duties as to the distribution of the estate, to the perform- ance of which a power of sale is essential; °' for example, when he is required by the will to divide the estate among certain per- sons, and the estate is not divisible in kind."* So, also, in some jurisdictions at least, a power of disposition is implied in a life tenant, by reason of a limitation over to another of "what remains undisposed of" by such life tenant at his or her death, in which case the first taker takes merely a life estate, cou- pled with a power of appointment of the reversion, and in default of appointment to the second takers.*^ 54 2 Min. lusts. 815; Gilbert, Uses, 313, 158, 159, note (5). 65 2 Min. Insts. 815 et seq. ; 1 Tiffany, Real Prop. § 275; Sugden, Pow- ers, 363, 478 ; Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908 ; Riggs v. Mur- ray, 2 Johns. Ch. (N. Y.) 565; Reidy y. Small, 154 Pa. 505, 26 Atl. 602, 20 L. R. A. 362. 66 2 Min. Insts. 815; Sugden, Powers, 106 et seq. ; Gilbert, Uses, 314 et seq. 57 1 Tiffany, Real Prop. §280; 2 Perry, Trusts, § 766; Going v. Emery, 16 Pick. (Mass.) 107, 26 Am. Dec. 645; Lindley v. O'Reilly. 50 N. J. Law. 636, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802 ; Belcher v. Belcher, 38 N. J. Eq. 126 ; Winston v. Jones, 6 Ala. 550 ; Vaughan v. Farmer, 90 N. C. 607. 58 Corse V. .Chapman, 1.53 N. T. 406, 47 N. E. 812 ; Tomlsins v. Jliller (X. J.) 27 Atl. 484. 69 1 Tiffany, Real Prop. § 280; Clark v. Middlesworth, 82 Ind. 240; Pnire V. Barnes, 100 Mass. 470; Smith v. Mclntyre, 37 C. C. A. 177, 95 Fed. 585: (797) § 1045 POWER EFB^ECT OF PROPER EXERCISE. [Ch. 41 § 1045. IV. The Exercise of the Power— 1. Effect of Proper Exercise of Power. It is a well-established principle that when the donee of a power of appointment exercises the power and appoints one to take under it, the appointee holds, not under the donee of the power, but under the donor, that is, under the instrument executed by the donor which creates the power; the intermediate seisin of the donee of the power under the same instrument, if any, being wholly defeated by the appointment.*" If, however, the conveyances creating the power of appointment is a bargain and sale or covenant to stand seised under the statute of uses, there is perhaps a question- whether the appointee, who has not supplied the valuable consideration or is not related to the donor of the power, is within the consideration so as to permit him to take the interest arising after the appointment under the donor's deed."^ We have already seen instances of the application of the prin- ciples that an appointee under a power takes under the donor and not under the donee. Thus it has been shown that the dower of H.'s wife is defeated in case of a conveyance "to such uses as H. shall appoint, and until such appointment to the use of H. and his heirs," in case H. (even without the joinder of his wife) should ap- point in his lifetime."^ So, also, though the rule in Shelley's Case is applicable only where the ancestor's freehold and the remainder to the heirs, etc., are limited by the same instrument, yet in ac- cordance with the same principle, if there be a limitation "to the use of A. for life, and after his death to such uses as Z. shall ap- point," and Z., in A.'s lifetime, appoints the use to the heirs of A., it is the same as if the original instrument had limited the es- tate in the first instance to the heirs of A. by way of remainder Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747; Henderson V. Blfickburn, 104 111. 227, 44 Am. Rep. 780. See Smythe v. Smytlie. 90 Va. 638, 19 S. E. 175. But it is usually held that where an estate is given to one generally (e. g. "to A."), with a ijower of disposition implied by a limi- tation over of "what remains undisposed of," or the like words, it creates a fee simple in the first taker, as a matter of the construction of the gran- tor's or testator's intent. Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747 ; Id., 144 U. S. 6.53, 12 Sup. Ct. 781, 30 L. Ed. 579. 6 Ante, § 1041; 2 Min. Insts. 109; Ray v. Pung, 5 B. & Aid. 561; Maun- drell v. Maundrell, 10 A^es. 203 et seq. ; Paine's Case, 8 Co. 34b, n. (A) ; Cunningham v. Moody, 1 Ves. Sr. 177 ; Doe v. Martin, 4 T. R. 05 ; Doe v. Weller, 7 T. R. 478; Venables v. Morris, 7 T. R. 342, .347; Roach v. Wad- ham, 6 East, 289. 012 Min. Insts. 170; Gilbert, Uses, 398, note (2), Introduction, Iv; I Spence, Eq. ,Tur. 450, 451. 02 Ante, § 275. (708) 'Gh. 41] POWER COUPLED WITH TRUST. § 1046 after A.'s life estate, so that the rule in Shelley's Case applies at common law."^ And so, if land be leased to W. with power of appointment, and with a covenant by W. and his assigns to pay the rent, and W. ap- points to J., the appointee cannot be sued by the original lessor upon W.'s covenant to pay rent because, since J. does not hold un- der W., but under the original donor of the power, there is no priv- ity of estate between W. and J., such as is required to constitute a covenant running with the land/* § 1046. Same — 2. Powers Coupled with a Trust — Exercise of Power Mandatory. The donee of a power, strictly so called, can never be compelled to exercise the power; it being in the nature of a privilege or right, the exercise of which is optional and dis- cretionary with the donee.*"^ But sometimes what is really a trust is appareled in the garb of a power, in which case a court of chancery will compel the ex- ecution of the so-called power. Such a power is denominated "a power coupled with a trust," or "a power in the nature of a trust," and arises in cases where the execution of the power is imposed upon the donee as an imperative duty, admitting no exercise of discretion on his part. Thus, if a power of sale be given by will to the executor therein named, with specific directions to apply the proceeds for the benefit of certain persons, or to pay certain debts, this would be a power coupled with a trust, the specific execution of which chancery would enforce. •*" The nonexecution of such a power is aided in equity on the same principle upon which courts of equity enforce any trust ; and if the donee fails or refuses to exercise the power, or dies without exercising it, the court of equity will itself exercise it, so far as it can. In such case, if the power be for the benefit of a class of per- sons (as "children," "sons," etc.), though the donee might have had the right to exercise a discretion in the selection of the mem- bers of the class who should benefit thereby, yet if he fails or re- 6 3 Ante, § G31 ; 2 Min. Insts. 407; Fearne, Rem. 74; Venables v. Mor- ris, 7 T. R. 342, 347. 6* Roach V. Wadham, 6 East, 280. See ante, § 376. 65 1 Tiffany, Real Prop. § 278; Sugden, Powers, 588; 2 Story, Eg. Jur. § 1061; 1 Perry, Trusts, § 248; Dillard v. Dillard, 97 Va. 442, 34 S. B. 60. 6 6 Sugden, Powers, 588; Brown v. Higgs, 8 Ves. 561; Faulkner v. Davis, 18 Grat. (Va.) 651, 98 Am. Dec. 698; Greenough v. Welles, 10 Cush. (JIass.) 571 ; Bafley, Petitioner, 15 R. I. 60, 1 Atl. 131 ; Druid Park Heights Co. of Bal- timore City V. Oettinger, 53 Md. 46 ; Randolph v. East Birmingham L. Co., 104 Ala. 35.5, 6 South. 126, 53 Am. St. Rep. 64; 1 Tiffany, Real Prop. § 278; 2 Story Bet. Jur. § 106 ; 1 Perry, Trusts, c. 8. (799) § 1046 POWER — COUPLED WITH TEUST. [Ch. 41 fuses to exercise the power, and the court of equity is called upon to enforce an execution thereof, the court has no authority to ex- ercise such discretion, but must enforce it in favor of all the mem- bers of the class equally, upon the maxim that equality is equity."' In such cases of powers coupled with a trust, that is, powers to appoint among a certain class of persons, where the donee has failed to appoint, it sometimes becomes necessary for the court of equity, in ascertaining the share of each member of the class, to determine whether each member of the class takes a vested interest in the property from the date of the original instrument creating the trust (in which case, the heirs, devisees or assignees of any deceased member of the class may be assigned by the court the portion that would have gone to the deceased member, had he been living at the date of the distribution), or whether the intent of the donor of the power is that the property should go only to such mem- bers of the class as might have taken it if the power were properly exercised by the donee thereof. Such a question would arise in case of a power given to A. to appoint by last will among a class, such as the testator's children. If A. fails to appoint by will, and some of the children of the testa- tor have died during A.'s lifetime, leaving children, the court must determine whether the latter children are to be included in the dis- tribution of the fund, taking their parent's portion, or are to be ex- cluded, leaving the fund to be distributed among those members of the class named (the testator's children) who are living at the time of A.'s death (when the power was to be exercised). If the instrument creating the power contains an express gift to the class, accompanied by a power in another to determine the shares in which they shall take, the court of equity regards the gift as vested in all the members of the class from the beginning, and therefore the heirs or devisees of the dead members of the class will be given the portions that would have gone to the de- ceased members, had they continued alive until the distribution.'' '^ But if the instrument creating the power does not expressly give the property to the class, but merely confers a power upon the donee to appoint among the class, the presumption is that only 67 2 Min. lusts. 821; 1 Perry, Trusts, §§ 250, 2.':5.j ; Lambert v. Thwaites, L. R. 2 Eq. 151 ; Brown v. Higgs, 8 Ves. 561 ; Parsons v. Baker, 18 Ves. 470 ; Morris v. Owen, 2 Call (Va.) 520 ; Tomlinsou v. Nickell, 24 W. Va. 148; Withers v. Yeadon, 1 Rich. Eq. (S. C.).324. 08 Lambert v. Thwaites, L. R. 2 Eq. 151 ; Casterton v. Sutherland, 9 Ves. 445; Wilson v. Duguld, 24 Ch. Div. 244; Rhett v. Mason, 18 Grat. (Va.) 541 ; Carson v. Carson, G2 N. C. 57 ; 1 Tiffany, Real Prop. § 290. See post, § 1052. (800) <-'ll. 41] POWER — DKLKGATIOX. § 10-iT such members of the class are to take as could have taken if the power had been exercised by the donee himself, so that if he is to appoint among "children" by will (without an express gift to the "children"), since he can only appoint among the children, and not among the grandchildren, the donee would be confined in his appointment by will to such of the children as are living at his death, and the court, in its distribution, would be confined to the same persons."" § 1047. Same — 3. Delegation of the Power. It is a general . maxim of the law, applicable to all cases where a discretion has been vested by one person in another, that the exercise of a discre- tionary authority cannot be delegated (delegatus non potest dele- gare). In the absence of proof of a contrary intent in the creation of the power, this principle is in general applicable to powers of all sorts, not "coupled with an interest," except in the case of a "pow- er coupled with a trust," in which case there is no discretion vested in the donee, but the exercise of the power is imperative, as has just been shown.'" In general, since the gift of a power implies a personal trust and confidence, it cannot be transferred or delegated to another, unless a right of transfer or delegation is expressly conferred or n2cessarily implied.''^ Thus the donee of a special power cannot exercise it by appointing to another a life estate, with power to such life tenant to appoint in remainder.'^ But this principle has no application to cases where there is no discretion, on the one side, or, upon the other, where there is no relation of trust or confidence. Hence a power in the nature of a trust — an imperative power, admitting of no discretion in the donee — whether given to the donee personally, or as trustee or executor, will be enforced in equity, if the donee, or one of the donees, re- fuses to execute it, or dies without having done so, or in any other case of its nonexecution.'^ 60 1 TifCiiiiy. Real Proji. S -Un ; Lanibert v. Thwaites, L. R. 2 Eq. 151: Walsh V. Wallin'jjer, 2 Russ. & :\I. 78; Kennedy v. Kingston, 2 Jac. & W. 431. See jiost. § l(i."i2. 7 Ante. § lOJlJ. Til Tiffany. Real rrop. § 2,S2 : Sng'len. I'dwers. 179; 4 Kent, Com. 327; Ingram v. Ingram, 2 Atk. 88; Hood v. Iladen. S2 Va. .ISS ; Slielton v. Ho- mer, 'i Mete. (Mass.) 4(;2 ; Keini y. O'Reilly, ."14 X. .T. E(]. 418. .34 Atl. 1073; Pliillips V. Brown, 16 R. I. 27!». 15 Atl. 90; Wilson y. Mason. I."i8 111. 304, 313, 42 N. E. 134, 49 Am. St. Rej). I(i2; Saunders v. Webber. 39 Cnl. 2S7. 7 2 Hood V. Haden. 82 A'a. .")SS ; Wickershani y. Sayage. .18 Pa. 'Mr,. 7 3 Ante, § 1046; Bro\yn y. Hig.gs. S Ves. ."iin ; (iibbs y. Marsh, 2 Mete. (Mass.) 243; Greenongh y. Welles, 10 Cnsh. (Mass.) 571; Franklin y. Os- MiNOB & W.Real Prop.— 51 (801) § 1047 POWEE DELEGATION. [Ch. 41 On the other hand, if the power is general, unrestricted as to the beneficiaries and the manner of its exercise, since there is no relation of trust or confidence established, and the power is equiva- lent to ownership, the donee may delegate the exercise of it, or may appoint to such uses as another shall appoint.^* Still another exception, or apparent exception, to the principle that the right to exercise a power cannot be delegated, arises in the case of power conferred upon trustees, executors, or other fiduciaries, in their official, and not in their personal, capacities. This exception, if such it may be called, is grounded in the inten- tion of the creator of the power, and is based upon the fact that, in such cases, the trust or confidence is reposed in the official, and not in the person ; and his successor in office has the same claim to be trusted and to execute the power as had the official to whom it was originally given. Hence, in case of a power given to a trus- tee, where it appears from the terms of the instrument creating the power that it is attached to the official merely, it may be exercised by a substituted trustee in the event of the death, resignation or removal of the original trustee. ^° But if there is a personal dis- cretion involved in the exercise of the power, only the original trustee may exercise it, and neither his assignee, heirs, personal representative, nor a substituted trustee can do so, in the absence of statute.' ° If a sole executor, to whom the will gives a power of sale, should refuse to qualify, or should resign or die, the administrator c. t. a., in the absence of an intent to the contrary, or of a statute au- thorizing it, cannot exercise the power.''' good, 14 Johns. (N, Y.) .")27 ; Gosson V. Ladd, 77 Ala. 223 ; Dick v. Harby, 48 S. C. .51ij, 26 S. E. 900; Robertson v. Gaines, 2 Humph. (Tenn.) 367. Til Tiffany, Real Prop. § 282 ; Sugden, Powers, 181, 195. See Coats v. Louisville & N. R. Co., 13 Ky. Law Rep. 557, 17 S. W. 564; Dillard v. Dil- lard (Va.) 21 S. E. 669. 7 5 1 Tiffany, Real Prop. § 282 ; 2 Perry, Trusts, § 508 ; Bradford v. Monks, 132 Mass. 405; Boutelle v. Bank, 17 R. I. 781, 24 Atl. 838; Druid Park Heights Co. of Baltimore City v. Oettinger, 53 Md. 46 ; Safe Deposit & Trust Co. of Baltimore v. Sutro, 75 Md. 361, 23 Atl. 732 ; Freeman v. Prender- gast, 94 Ga. 3G9, 21 S. E. 837. See, also, post, § 1048. 7 6 1 Tiffany, Real Prop. § 282; Cole v. Wade, 16 Ves. 27; Gosson v. Ladd. 77 Ala. 223 ; Young v. Young, 97 N. C. 132, 2 S. E. 78 ; Gambell v. Trlppe, 75 Md. 252, 23 Atl. 461, 15 L. R. A. 235, 32 Am. St. Rep. 388; Security Co. V. Snow, 70 Conn. 288, 39 Atl. 153, 66 Am. St. Rep. 107. See Dillard v. Dil- lard, 97 Va. 442, 34 S. E. 60. 77 1 Tiffany, Real Prop. § 282; 2 Perry. Trusts, § 500; In re Clay, 16 Ch. Div. 3 ; Tainter v. Clark, 13 Mete. (Mass.) 220 ; Conklin v. Egerton, 21 Wend. (N. Y.) 429. In the case of a devise of land to the executor to be sold, etc., the executor takes an interest in the land, not a mere power of (802) Ch. 41] POWER EXERCISE IN CASE OP JOINT DONEES. § 1048 § 1048. Same — 4. Exercise of the Power in Case of Several Joint Donees. In general, the assumption of the law is that, when a power is given to several donees jointly, it is the donor's inten- tion to repose his confidence in them all jointly, and not to trust to the individual discretion of each, or to that of any less than the whole number. Hence, unless a contrary intent is shown by the instrument creating the power, or it is otherwise declared by stat- ute, the general rule is that, where a "bare" or "naked" power is given to two or more donees jointly, they must all unite in the exercise thereof; ''^ and the death or refusal of one or more of the donees to act will prevent the valid exercise of the power.'"' But if the power, though "naked," be given to persons in an official capacity, rather than personally, as in the case of a power of sale given to joint executors, it seems that the power may be exercised by less than the whole number, if some of them die, or refuse to qualify.'" On the other hand, if the power is not a "bare" or "naked" pow- er, but one "coupled with an interest" '^ (that is, when the power is conferred upon persons who are also given the title, as in the case of land devised to trustees or executors, with a power of sale), since, upon the death of one of the joint tenants of the title, the estate at common law survives, so also does the power. ^^ Indeed, in case of powers coupled with an interest, not only is it permissible for less than the whole number of donees, trustees or executors to exercise, the power upon the death of one or more .'■:ile, and he takes it as a trustee, and not as an executor. Mosby v. Mosby, Grat. (Va.) 590, 611. Tsi Tiffany, Real Prop. § 282; 1 Perry, Trusts, § 294; 2 Story, Eq. Jur. § 1062 ; McRae v. Farrow, 4 Hen. & M. (Va.) 444. 78 1 Tiffany, Real Prop. § 282 ; 2 Perrj', Trusts, §§ 499, 505. See Lane v. De'cenham, 11 Hare, 188; Peter v. Beverly, 10 Pet. 532, 564, 9 L. Ed. 522; Parker v. Sears, 117 Mass. 513; Tainter v. Clark, 13 Mete. (Mass.) 220; Osgood V. Franklin, 14 Johns. (N. Y.) 527; Conklin v. Egerton, 21 Wend. CN. Y.) 430 ; Robinson v. Allison, 74 Ala. 254 ; Muldrow v. Fox, 2 Dana (Ky.) 79; Gray v. Lynch, 8 Gill (Md.) 403; Gutman v. Buckler, 69 Md. 7, 13 Atl. 635. 80 1 Tiffany, Real Prop. § 282; Sugden, Powers, 128; Howell v. Barnes, Cro. (Car.) 382; Nelson v. Carrington, 4 Munf. (Va.) 332, 6 Am. Dec. 519; Peter v. Beverley, 10 Pet. 532, 564, 9 L. Ed. 522; Bradford v. Monks, 132 Mass. 405 ; In re Murphy's Estate, 184 Pa. 310, 39 Atl. 70, 63 Am. St. Rep. 802; Fitzgerald v. Standish, 102 Tenn. 383, 52 S. W. 294; Weimar v. Fath, 43 N. J. Law, 1. But see Jones v. Hobson, 2 Rand. (Va.) 499. 81 Ante, § 1033. 8 2 See authorities cited supra. See, also, Deneale v. Morgan, 5 Call (Va.) 407 ; Gould v. Mather, 104 Mass. 283 ; Wilder v. Ranney, 95 N. Y. 7 ; Wil- son v. Mason, 158 111. 304, 42 N. E. 134, 49 Am. St. Rep. 162. (803) § 1048 POWER EXERCISE IX CASE OP JOINT DONEES. [Ch. 41 of them, but an exercise of the power by the rest of the number is equally permissible where one (or more) refuses to qualify, is removed, or resigns.*^ But if all the executors refuse to qualify, resign, die, or are removed, the administrator c. t. a. is not at common law permitted to exercise the power in their stead, though it is otherwise in the case of the substitution of one set of trustees by another — at least, when the confidence has been reposed in them officially, and not personally.^* § 1049. Same — 5. Manner of Exercising the Power. It is a general rule that all the forms and circumstances prescribed by the instrument creating the power must be strictly observed, includ- ing whatever limitations may exist as to the time of execution, the mode of execution, the persons who are to exercise the power, the persons who are to take, and the shares to be allotted to them sev- erally.*'^ Thus, though the execution of powers defective in merely formal points may sometimes be aided in a court of equity,*^ yet in a court of law if the particular instrument whereby the power is to be ex- ecuted is specified it must be adopted ; so that, if a deed be requir- ed, a will does not suffice, and, if a will is prescribed, the execu- tion of the power by deed is void, unless the deed is in its nature testamentary, in which event the mere fact that it is in the form of a deed will not invalidate it.^' On the other hand, nothing need be added to the requirements. Hence, if a writing under hand and seal is required, it need not be delivered ; and, if required to be "duly attested," it suffices if there be one witness.** So, independently of statute, whatever number of witnesses be required, that number must be had, although exceeding the limit usually necessary; and in like manner, if a less number be requir- ed by the instrument creating the power, a less number will suffice. 83 1 Tiffany. Real Prop. § 282 ; Warden v. Richards. 11 Gray (Mass.) 277 : Gould V. Matlier, 104 Mass. 283 : Weimar v. Fath, 43 X. J. Law, 1 ; Den- ton V. Clark, 30 N. J. Eq. 534; Mealvings v. Crom\yell. 5 N. Y. 136; Heron V. Iloffner, 3 Rawle (Pa.) 393; Chanet v. Villeponteaux, 3 McCord (S. C.V 20 : Wolfe V. Hines, 03 Ga. 329, 20 S. E. 322. 84 Ante, § 1047. 8=2 Min. Insts. 818, 810; 2 Tli. Co. Lit. 587, note (B) ; Hawluns y. Kent, 3 Kast, 410; 1 Sugden, Po\vers, 211, 2,"in, 278. 8 8 Post, § in.-jl. 8T2 Min. Insts. 810; 2 Tli. Co. Lit. .587, note (B) ; Wilks v. Burns, 60 Mil. G4; Gaskins v. Finks, 00 Va. 384, 1!) S. E. l(j(i. 8«2 Min. Insts. 819; 2 Tli. Co. Lit. ."iSS, note (B) ; Sherman y. Hicks, 14 Grat. Oli; Wright y. Wakeford, 17 Yes. 454a. (S04) l,'ll. 11] POWER EXERCISE AS yfESTKIX OF INTENTION. § 1030 But if the power is to be executed "'by will" (without more) the rule is that the will must be made as the statute of wills requires : "'•' and if the instrument creating the power contains no restrictions, express or implied, upon the mode of execution, it may be exercised by any instrument sufficiently showing an intent to execute it, pro- vided at least it would suffice to pass title to the property if it be- longed to the donee of the power."" It is noteworthy that a will made in execution of a power not only so operates, but has in most respects the qualities of a proper will. Thus it is ambulatory until the testator's death, and may be revoked, as, of course, without reserving a power of revocation, as is necessary where the power is executed by deed. So the ap- pointment lapses by appointee's death in testator's lifetime (unless where a statute may prevent), and confers no interest in any case except from his death. "^ The instrument by which the power is executed need not re- cite the power, and it will be good, although it includes other sub- jects, the property of the appointor. And notwithstanding the power may have contemplated but one instrument, yet if several be employed, which in effect are but one, it suffices."^ § lOSO. Same — 8. The Exercise of a Power is a Question of the Donee's Intention. It is not essential at common law that the do- nee of the power, in executing it, should recite the power or refer to it in any manner, provided there be an actual or legal intent to ex- ercise it. Such an intent may, at common law, be shown in three ways — either (1) by specific reference to the power itself; (2) by specific reference to the property which is the subject of the pow- er; or (3) by reason of the fact that the donee's act would be in- effectual unless considered as an exercise of the power.'** Thus, if the donee of a naked power over certain land conveys 89 2 Mill. Insts. St9; 2 Th. Co. Lit. 588, note (B) ; Longford v. Eyre, 1 P. Wms. 700. 6 Kniglit V. Yarborongli, 4 Rand. (Va.) 566; Cueman y. Broadnax, 37 N. J. Law, .508; Christy v. Pulliam, 17 111. 59; Sugden, Powers, 203; 2 Min. Insts. 819. 91 2 Min. Insts. 820 ; 2 Th. Co. Lit. 588. .589, note (B). But if one by will gives a donee power to appoint, the donee may exercise the power in the lifetime of the testator who created the power, and such exercise will be valid to pass the estate at the death of the donor, if his will remains un- revoked. Thorndlke'v. Reynolds, 22 Grat. (Va.) 27, 28. 8 2 Post, § 1050; 2 Min. Insts. 820; 2 Th. Co. Lit. 589, note (B) ; Walke V. Moore, 95 Va. 735, 736. .30 S. E. 374. 93 Walke V. Moore, 95 Va. 735. 7:m\. .30 S. E. 374; Hood v. Haden, 82 Va. 594; Lee v. Simpson, 134 U. S. 572, 5U0, 10 Sup. Ct. G31, 3:3 L. Ed. 1038; Den V. Roake, 6 Biug. 475. (805) § 1050 POWER — EXERCISE AS QUESTION OF INTENTION. [Cll. 41 or clevises the specific land, since he has no estate in the land upon which the conveyance or devise may operate, it must be regarded as intended as an exercise of the power, for else it could have no opera- tion at all."* And even though the donee have an estate in the land, if the interest given under the execution of the power be greater, this points to the donee having in mind the exercise of the power, which, it seems, will be conclusively presumed, though in fact the donee believes he is conveying or devising his own prop- erty, and is not aware that he has a power merely to dispose of the greater estate. °° Thus the conveyance of a fee by one who has a life estate, with power over the fee, is an exercise of the power.'" But if the interest disposed of is no -greater than the estate the donee of the power has in the land itself, the general presumption is that his transfer is intended to operate upon his own interest, and not under the power."' If the donee's conveyance or devise does not refer specifically either to the power or to the particular land, but uses general ex- pressions descriptive of land or interests therein, which may or may not embrace the land subject to the power, such as "all my land," "all the residue of my land," "my leasehold property," etc., and the donee of the power owns no interest in land to which such expres- sions can refer, his conveyance or will must be regarded as intend- ed to be an exercise of the power, since otherwise it would be in- 9*1 TifEany, Real Prop. § 283; Sugden, Powers, 289, 290; Clere's Case, 6 Co. I7b; Scrope's Case, 10 Co. 143b; Hood v. Haden, 82 Va. 588; Taylor V. Eatman, 92 N. C. 601 ; Scott v. Bryan, 194 Pa. 41, 45 Atl. 135 ; Matthews Y. Mc-Dade, 72 Ala. 377; Terrj' v. Rcdahan, 79 Ga. 278, 5 S. E. 38, 11 Am. St. Rep. 420 ; Dick v. Harby, 48 S. C. 516, 26 S. E. 900. 95 1 Tiffany, Real Prop. § 283; Sugden, Powers, 348; Walke v. Moore, 95 Va. 736, 30 S. E. 374; Hood v. Haden, 82 Va. 594; Allison v. Kurtz, 2 Watts (Pa.) 18.1 ; Drusadow v. Wilde, 63 Pa. 172 ; Terry y. Rodahan, 79 Ga. 278, r, S. E. 38, 11 Am. St. Rep. 420; Young v. Mutual Ins. Co., 101 Tenn. 311, 47 S. W. 428: Bishop v. Remple, 11 Ohio St. 282; Tates v. Clark, 56 Miss. 212; Baird v. Boucher, 60 Miss. 326; Gindrat v. Montgomery Gas Light Co., S2 Ala. 596, 2 South. 327, 60 Am. Rep. 769; Farlow v. Earlow, 83 Md. 118, ;U .\.tl. .S37; Owen v. Ellis, 64 Mo. 77; AVarner v. Conn. Mut. Life Ins. Co., 109 U. S. 357, 3 Sup. Ct. 221, 27 L. Ed. 962. 9 'V^'alke v. Moore, 05 Va. 729, 30 S. E. 374 ; Warner v. Conn. JIut. Life Ins. Co., 109 U. S. 337, 3 Sup. Ct. 221, 27 L. Ed. 062; Gindrat v. Montgom- ery Gas Light Co., 82 Ala. 596, 2 South. 327, 60 Am. Rep. 769 ; Law Guaran- tee & Trust Co. V. Jones, 103 Tenn. 245, 58 S. W. 219; Baird v. Boucher, 00 Miss. 326. 97 1 Tiffany, Real Prop. § 283; Clere's Case, 6 Co. 17b; Den v. Roake, 6 Bing, 475: Walke v. Moore. 95 Ta. 720, 30 S, E. 374; Robeno v, Marlatt, 136 Pa. 35, 20 Atl. 512 ; Mutual Life Ins. Co, of New York y. Shipman, 119 N. Y. 324, 24 X. E. 177; Phillips y. Brown, 16 R. I. 279, 15 Atl. 90; Payne V. Johnson, 95 Ky. 175, 24 S. W. 238, 009; Towles v. Fisher, 77 N. C. 437. (806) Ch. 41] POWER TIME OF EXERCISE. § 1051 effectual and a mere nullity."' But if the donee owns other inter- ests in lands, to which these expressions may be held to refer, the better rule, independently of statute, is that such a general convey- ance or devise does not show an intent to execute the power, and will be confined in its operation to the interests actually owned by the donee. °° § 1051. Sam,e — 7. Time of Exercise of Power. The construc- tion of the original instrument creating the power will usually de- termine whether time is to be regarded as of the essence of the pow- er; the general rule being that, if the power is already existing, its exercise is valid, though taking place beyond the time fixed for its exercise, the provision as to the time within which the power is to be exercised being usually regarded as directory only, and not man- datory. Such, at least, is the general rule in case of powers coupled with an interest, as where a power of sale is conferred upon trus- tees, or where land is devised to executors with power to sell.'- On the other hand, if the instrument creating the power provides that it is not to come into existence until some future event, and such future event has not yet transpired when the power is exer- cised, the premature exercise thereof is at least inoperative until the happening of such future event, if not totally void.^ Upon this principle, if a power to sell land in which another has a life estate be given to a trustee or executor, the power can- 08 1 Tiffany, Real Prop. § 283; Sugden, Powers, .318; Standeii v. Standen, 2 Ves. Jr. .589 ; Grant v. Lyman, 4 Riiss. 292 ; Keef er v. Solnvartz, 47 Pa. 503 ; Mory v. Michael, 18 Md. 227 ; Smith y. Curtis, 29 X. J. Law, 352. See JNIaehir v. Funk, 90 Va. 287, 18 S. E. 197. 89 1 Tiffany, Real Prop. § 283; Sugden, Powers, 312; Den v. Roalie, 6 Bing. 475; Bingham's Appeal, 04 Pa. 345; Mason v. Wheeler, 19 R. I. 21, 31 Atl. 426, 01 Am. St. Rep. 734; Ootting v. De Sartiges, 17 R. I. 668, 24 Atl. 530. 16 L. R. A. 367 ; Sewall v. Wilnier, 132 Mass. 131 ; Holllster v. Shaw, 40 Conn. 248; Meeker v. Breintnall, 38 N. J. Eq. 345; Patterson v. Wilson. 64 JId. 193, 1 Atl. 68 ; Bilderback v. Boyee, 14 S. C. 528. 1 Tiffany, Real Prop. § 284 ; Pearce v. Gardner, 10 Hare. 2S7 ; Jackson V. Ligon, 3 Leigh (Va.) 161; Hale v. Hale, 137 Mass. 168; Mott v. Acker- man, 92 X. Y. .5.39; Marsh y. Love, 42 N. J. Eq. 112, Atl. 889; Shalter's Appeal. 43 Pa. 83, 82 Am. Dec. .5.52. But see Daly v. James, 8 Wheat. 495, .5 L. Ed. 670. It may sometimes be exercised under the direction of a court of equity after the death of the donee of the power. See Faulkner v. Da- vis. 18 Grat. (Va.) 651, 98 Am. Dec. 698. 2 Machir v. Funk, 90 Va. 289. 18 S. E. 197 ; Loomis v. McClintock, 10 Watts (Pa.) 274; Booraem v. Wells, 19 X. J. Eq. 87; Want v. Stallibrass, L. R. 8 Exch. 175. Thus, where a husband by his will gives land to his wife until she marries again, and in the event of her remarriage gives his executor power to sell the land, the exercise of the power by the executor, the testator's widow remaining unmarried, is ineffectual and void. Raper y. Sanders, 21 Grat. (Va.) 00. (807) § 1052 POWER EFF10<'T OF FAILURE TO EXERCISE. [Ch. 41 not be validly exercised in the lifetime of the life tenant, unless all the parties interested are sui juris and consent thereto, and not even then unless this is consistent with the substantial purpose of the donor of the power." But if the power given be to sell im- mediately the remainder or reversion after the life estate (not the land itself), it would seem to be exercisable immediately. § 1052. V. Exercise of the Power Not in Accordance with Its Terms — 1. Effect of Failure to Exercise the Power. If the power is a power in the nature of a trust (or "coupled with a trust"), a failure by the donee to exercise the power is not very material, since the court of equity may itself execute it, or — what amounts to the same thing — may treat it as if it were already executed. The only difference between the court's execution of such a power and the donee's arises where the power is in favor of a class of persons, amongst whom the donee has a discretion to select. In such case, while the donee, in exercising the power, may exercise the discre- tion, and, according to his power, either exclude some members of the class altogether or give them smaller portions than others, the court of equity (upon the donee's failure to exercise the power) has no such discretion, and must divide the property among all the members of the class in equal shares.* Thus, where land is given by a testator to his wife for her life, with power to appoint it at her death to and amongst his children, as she shall deem best, and she makes no appointment, the prop- erty is divided in equity equally among the children, in pursuance of the trust created by the will.° In case of a power to appoint among a class, whether the death of one or more members of the class, prior to the time fixed for 3 1 Tiffany, Real Prop. § 284 ; Siigden, Powers, 260 ; Want v. Stallibrass, Tj. R. 8 Exch. 175 ; Jackson v. Ligon, 3 Leigh (Va.) 161 ; Kilpatrieli v. Bar- ron, 125 N. Y. 751, 26 N. E. 02."i ; Booraem v. Wells, 19 N. J. Eq. 87; Do- lioney v. Taylor, 79 Ky. 124. The consent of the life tenant alone, even though the time of sale has been postponed solely on his account, is not suf- ficient, according to the better view. Want v. Stallibrass, L. R. 8 Exeh. I7.'i; Jackson v. Ligon, 3 Leigh (Va.) 161; Raper v. Sanders, 21 Grat. (Va.) 00; Davis v. Howcott, 21 N. C. 4(50. But see Truell v. Tyson, 21 Beav. 439; Snell v. Snell, 38 N. J. Eq. 119; Hamlin v. Thomas, 126 Pa. 20, 17 Atl. 5m. *Ante, §§ 1036, 1046. s 2 Min. InstS. 821 ; Harding v. Glyn, 1 Atk. 469, 2 White & Tud. Lead. Cas. Eq. 08."i, 687, et seq. ; Pierson v. Garnett, 2 Bro. Ch. 45 ; Brown v. Higgs, 8 Ves. 561; Maline v. Keighley, 2 Ves. Sr. 333, 529; Parsons v. Baker, 18 Xes. 476; Jlorris v. Owen, 2 Call (Va.) .520; lOiight v. Yarbrough, Gilmer (Va.) 27 ; Mitchell v. Johnson, 6 Leigh (Va.) 461 ; Milholleu v. Kice, 13 W. Va. 510, 564 ; Tomlinson v. Nickell, 24 W. Va. 148. (808) Oh. 41] POWER — EF'FECT OF FAILURE TO EXERCISE. § 1052 the appointment, divests his interest in case of the ultimate failure to appoint, or whether the interest of each member of the class is SO vested in him that, upon his premature death, his share will in equity go to his heirs or devisees, seems to turn, as we have seen, upon the question whether the property is by the original instru- ment expressl)^ and directly given to the whole class, with power in the donee only to name in what shares and in what manner the members are to take, or whether the general power is given the donee to appoint to and among the class, nothing to be given to the class itself directly.'' In the last case, the interest does not vest in any particular mem- ber of the class until either he is selected by the donee or the ap- pointment is thrown into equity by the donee's failure to appoint. Hence, upon the death of a member of the class before one or the other of these two events, his interest will not go to his heirs or devisees.^ But in the first case mentioned, the land being given by the original instrument to the whole class, each member takes a vested interest immediately, which, though subject to be divested in whole or in part by the subsequent exercise of the power by the donee, is good and valid unless and until it be so divested. Hence, in this case, upon the death of a member of the class and the ulti- mate failure of the donee to exercise the power, the court of equity, in enforcing the trust, will give the heirs or devisees of the de- ceased member their ancestor's equal portion.* Thus, in Lambert v. Thwaites,^ where the property was given to A. for life, and after his death to all A.'s children, to be divided among them in such shares as A. should declare by will, and A. did not exercise the power, it was held that the surviving children, and also the devisees of a deceased child, were all entitled in equity to share in the property. If the power be not in the nature of a trust, that is, if its execution be not imperative or mandatory, but optional with the donee, and he fails to exercise it, the ultimate destination of the property will depend upon whether there are limitations over in default of ap- pointment. If there are such limitations over, the beneficiaries named therein are of course entitled to the property according to 6 Ante, § 1046. ^ Ante, § 1046 ; Lambert v. Thwaites, L. R. 2 Eq. 151 ; Kennedy v. King- ston, 2 Jac. & W. 431 ; Walsh v. Wallinger, 2 Russ. & M. 78. 8 Ante, § 1046 ; Lambert v. Thwaites, L. R. 2 Eq. 1.51 ; Casterton v. Suth- erland, 9 Ves. 445; Wilson v. Duguid, 24 Ch. Div. 244; Rhett v. Mason, 18 Grat. (Va.) 541. »L. R. 2 Eq. 151. (S09) § 1053 POWER EXCESSIVE EXERCISE. [Oh. 41 the terms of the limitations over. But if there is no ulterior dis- position of the property in the event of a failure to appoint, as where land is devised to L. for life and then to such uses as she shall appoint, and L. makes no appointment, the land results to the heir or residuary devisees of the donor of the power.^" § 1053. Same — 2. Excessive Exercise of the Power. An excess- ive exercise of a power, that is, an exercise which goes beyond the authority of the donee or the scope of the power, can occur only in case of special powers, since the very essence of a general power is that it is unrestricted and unlimited in its scope.'^ Any restriction imposed upon the donee in respect to the exer- cise of the power makes the power to that extent a special pow- er. Such powers, as we have seen, may be restricted in point of (1) the appointees; (2) the interests or estates to be created; (3) the conditions and purposes of the execution. ^- If the donee exceed his authority by appointing to persons none of whom are objects of the power, the power is badly executed, and the exercise is simply void : but if the donee combines among the appointees persons who are, as well as those who are not, ob- jects of the power, it will be valid as to the former, if the shares intended for them can be ascertained.^^ Thus, where a power to appoint among members of a class was exercised by appointing life estates to the members of the class, with remainders to their chil- dren, the appointments for life were regarded as valid, while the remainders were divided among the members of the class. ^* When the execution is excessive in point of estate or interest created by the appointment, the general rule is that, while the ex- ecution is totally void at law, it will be upheld in equity, save as to the excess. Thus, where a donee, who is given power to ap- point for life (or for years), appoints in fee (or for a greater num- ber of years), the appointment will in equity be void as to the ex- cess only.^" 10 2 Min. lusts. S21; 2 Th. Co. Lit. 579 et seq. ; Clive's Case, 6 Co. 180: Fi-azier v. Frazier, 2 Leigh (Va.) G42, 649. 11 Ante, § 1035. 12 Ante, § 1035 et seq. 13 1 Tiflfany, Real Prop. § 28(1; Alexander v. Alexander, 2 Yes. Sr. 640; In re Brown's Trusts, L. R. 1 Eq. 74; Sadler v. Pratt. 5 Sim. 632; Hor- witz V. Xorris, 40 Pa. 213 ; Cruse y. McKee, 2 Head. (Tenn.) 1, 73 Am. Dec. isn. But see Varrell v. Wendell, 20 N. H. 431; Mvers v. Safe-Deposit & Trust Co., 73 Md. 413, 21 Atl. 58 ; Little y. Bennett, 58 N. C. 156. 1* Horwitz V. Norris, 49 Pa. 213. 15 2 ilin. lusts. 820; 1 Tiffany, Real Prop. § 286; Sugden, Powers, 519, 521; Campbell y. Leach, Ambl. 740. (810) Ch. 41] POWER — DEFECTIVE EXERCISE AIDED IN EQUITY. § 1054 If the execution is excessive in point of conditions or qualifi- cations imposed by the donee upon the interests of the appointees, as by postponing the time of vesting, or requiring the appointees to pay money, etc., such conditions or quaHfications will be reject- ed, if separable from the exercise of the power, and the appoint- ment will be sustained free from them.^° § 1054. Same — 3. Defective Exercise of Power — Aided in Eq- uity. Except in the case of a power in the nature of a trust, eq- uity does not attempt to relieve against the nonexecution of pow- ers ; ^^ but against a defective execution thereof, which renders the appointment bad at law, equity will sometimes give relief in favor of one having an equity superior to the holder of the title by com- pelling the party entitled in default of appointment to convey a good title to the appointee. ^^ Such relief will be given only in favor of (1) appointees who have paid a valuable consideration, such as purchasers, lessees, or creditors of the donee; ^* or (2) where there is a meritorious con- sideration of love and affection, existing between the donee and appointee, by reason of which the donee is bound to make pro- vision for the appointee, as where the appointee is the wife or legitimate child of the donee (rarely in other cases) ; ^° or (3) in favor of a charity.^'- Aside from a fraudulent exercise of a power (which will be con- sidered in the following section), the defects in the execution of a power which will be aided in a court of equity are defects C|f form only, not of substance. ^^ Thus, where the instrument creating the power calls for an ap- pointment by an instrument under seal, and the seal is omitted, 16 1 Tiffany, Real' Prop. § 286; Sugden, Powers, 515, 526; Sadler v. Pratt, .-. Sim. 632; Pepper's Appeal, 120 Pa. 235, 13 Atl. 929, 6 Am. St. Rep. 702. "Ante, § 1046. 18 2 Min. Insts. 822; 1 Tiffany, Real Prop. § 287. See Atwood v. Shen- andoah Valley R. Co., 85 Va. 966, 9 S. E. 748; Thrasher v. Ballard, 35 W. Ya. 524, 14 S. E. 232. 19 2 Min. Insts. 822; 1 Tiffany, Real Prop. § 287; Sugden, Powers, 533; Williams, Real Prop. 298; Toilet v. Toilet, 2 P. Wms. 489, 1 White & Tud. Lead. Cas. Eq. 227, notes; Mutual Life Ins. Co. v. Everett, 40 N. J. Eq. 345, 3 Atl. 126; Howard v. Carpenter, 11 Md. 259; Beatty v. Clark, 20 Cal. 11. 20 2 Min. Insts. 822; 1 Tiffany, Real Prop. § 287; Sugden, Powers, 534; Fothergill v. Fothergill, 1 Eq. Cas. Abr. 222, pi. 9; Morse v. JIartin, 34 Beav. 500; Porter v. Turner, 3 Serg. & R. (Pa.) 108. 211 Tiffany, Real Prop. § 287; Sugden, Powers, 534; Sayer v. Sayer, 7 Hare, 377; Piggot v. Penriee, Finch, Prec. Ch. 471. 22 2 Min. Insts. 822; 1 Tiffany, Real Prop. § 287. (811) § 1054 POWER — DEFECTIVE EXERCISE AIDED IN EQUITY. [Ch. 41 equity will cure the defect ;^^ and so, also, where the appoint- ment is made by an instrument having less than the number of witnesses prescribed by the instrument creating the power. ^* So, also, if a power, which should have been executed by deed, is exercised by will, equity will relieve.-' But if the power is re- quired to be executed by will, it cannot in general be exercised by deed ; for that would be contrary to the intention of the cre- ator of the power, which is to have the donee reserve entire con- trol over its exercise until his death, an intention which would be defeated by any other than a testamentary instrument. ^^ In equity, even a covenant or agreement to execute a power, if supported b}^ a valuable consideration, and within the statute of frauds, is regarded as equivalent to an exercise ther-eof.^^ It is said that equity will relieve, also, against a defective exe- cution of a power, where there is any fraud or surprise (accom- panied with fraud), or where the donee is prevented by accident or disability from fully exercising his power. -^ But it will not in general relieve against the defective execu- tion of a statutory power, for that would defeat the statutory re- quirements as to the mode of execution.-* § 1055. Same — 4. Fraudulent Exercise of Power. The donee of a general power, since he is absolutely unrestricted as to the purposes for which he may exercise it, can never be guilty of a fraud upon the power. But the donee of a special power is usu- ally given the power for some particular purposes or reasons, and if he exercises it in a particular way for some ulterior purpose or 23 Smith V. Ashton, 1 Cb. Cas. 263 ; Freeman v. Eacho, 79 Va. 43. 24 2 Jlin. Tnsts. 822; 1 Tiffany, Real Prop. § 287; Wilkes v. Holmes, 9 Mod. 48.J. 25 2 Min. Insts. 822; 2 Th. Co. Lit. .jO.-J, note (B) ; 1 Tiffany, Real Prop. § 287; Sugden, Powers, .Vi8 ; Toilet v. Toilet, 2 P. Wms. 489, 1 White & Tud. Lead. Cas. Eq. 227; Sneed v. Sneed, Ambl. 64, Cowp. 264. But see Williamson y. Beckham, 8 Leigh (Va.) 27, 2N. 26 2 Jlin. Insts. 822 ; Reid v. Shergold, 10 Ves. 380 ; Richards v. Cham- bers, 10 Ves. 586; Lee v. JIviggeridge, 1 Ves. & B. 118; Scott v. Davis, 4 ily. & Cr. 90 ; Williamson v. Beckh;im, 8 Leigh (Va.) 2r> et seq. ; Gaskins V. Finks, 90 Va. .'^l, 19 S. B. 166; Methodist Episcopal Church v. Jaques, 3 Johns. Ch. (X. Y.) 114 ; Ewing v. Smith, 3 Dessaus. (S. C.) 417, 5 Am. Dec. .J.J 7. 2T 1 Tiffany, Real Prop. § 287; Sugden, Powers, 550; Clifford v. Bur- lington, 2 Veru. 379; Fotbergill v. Fothergill, 1 Eq. Cas. Abr. 222, pi. 9; Shannon v. Bradstreet, 1 Sch. & Lefr. 52; Blore v. Sutton, 3 Meriv. 237; Howard v. Carpenter, 11 JId. 250. See Johnson v. Touchet, 37 L. J. Ch -^5 28 2 Min. Insts. 822. 29 1 Tiffany, Real Prop. § 287; McBryde v. Wilkinson, 29 Ala. 662; Smith V. Bowes, 3S JId. 403. (812) Ch. 41] POWER EXTINCTION BY B"'INAL EXEIiCISB. § 1057 reason of his own, not within the contemplation of the donor of the power, as for his own pecuniary profit where this is not con- templated, this constitutes a fraudulent execution against which equity will relieve in favor of those defrauded thereby.'"' Thus, it is a fraud upon the power for a father having a power of appointment among his children to appoint to a child in bad health and likely to die, in order that he himself may inherit;^'- or for a father to appoint to a son in order that he may act as bail for the father. ^^ But where there is no design of ulterior profit to the donee, not contemplated in the original creation of the power, an appointment made because of mere prejudice in favor of or against certain mem- bers of the class is not a fraud upon the power, and cannot be set aside. ^^ § 1056. VI. The Extinction or Suspension of Powers — Discus- sion Outlined. Powers may be extinguished, or at least suspend- ed, in five cases : (1) Where the power has been finally and fully exercised, so that the entire interest to be appointed has been vest- ed in appointees ; (2) where the purposes for which the power is to be exercised have ceased to exist; ■ (3) where a condition pre- cedent to the exercise of the power fails of occurrence ; (4) where the donee of the power is estopped to exercise it because its ex- ercise would work a fraud upon innocent parties; and (5) where the power is released by the donee. § 1057. Same — 1. Final and Complete Exercise of the Power. The execution of a power in its entirety may be accomplished by a single act, or it may be capable of accomplishment by several successive, but partial, acts, as where the donee of a general pow- er appoints an estate for life at one time, and a fee simple at an- other." But in any event, so soon as the entire interest in the whole property subject to the power has been given out to appointees, 30 2 Min. Insts. 822; 1 Tiffany, Real Prop. § 289; Duke of Portland v. Topliam, 11 II. L. Cas. 32 ; Trout v. Pratt, 106 Va. 441, 5C S. E. 1G5, 8 L. K. A. IX. S.) 398; Stocker v. Foster. 178 Mass. :>m. 60 X. E. 4(J7 : Thom- son V. Xorris, 20 N. Eti. 489; Degman v. Degman, 98 Ky. 717, 34 S. W. ri23 ; Holt V. Hogan, 58 X. i\ 82. siWellesley v. Momingtou, 2 Kay & J. 143. s2 Eostick V. Winton, 1 Sneed (Tenn.) .524. 33 1 Tiffany, Real Prop. § 289; Topliam v. Duke of Portland, .5 Ch. App. '>7. >See Hill v. .Tones, es. :n.1. so 2 Min. Insts. 817; Gilbert, T'ses, 316. 012 Min. Insts. S17; (Jilbert, Uses, ^IIG, 317; Sugden, Towers, 49; West r. Berney, 1 Russ. ..^ M. 431. (81(J) Ch. 41] POWER — RELEASE OF. § 1061 released at common law, except when the power is for the ben- efit of the donee himself, such as a power to charge the land with a debt for his own benefit. °^ Save in these cases, the general rule of the common law is that a power may be released by the donee thereof to the remainder- man, reversioner or person having an immediate estate of freehold in the land. This applies whether it be a power appendant or ap- purtenant or a power in gross. ^^ A release of a power, when validly made, operates by way of extinguishment of the power. ^* B2 1 Tiffany, Real Prop. § 291 ; Sugden, Powers, 49 ; West v. Berney, 1 Russ. & M. 431. This is now altered in England by the conveyancing act of 1881 (section 52) which authorizes any donee of a power to release it by deed or contract not to exercise it. 63 2 Min. Insts. 817 ; 2 Washburn, Real Prop. 308 et seq. ; Sugden, Pow- ers, 82 et seq. ; Albany's Case, 1 Co. 110b ; West v. Berney, 1 Russ. & M. 431 ; Smith v. Death, 5 Madd. 371. 54 2 Washburn, Real Prop. 308 et seq. See ante, § 977. MiNOE & W.Real Prop.— 52 (817) CHAPTER XLII. TITLE BY ESTOPPEL. § 1062. Outline of Discussion. 1063. L Transfer of After-Acquired Title. 1064. 1. Transfer by Feoffment, Fine or Recovery. 1065. 2. Transfer by Lease. 1066. 3. Transfer by Conveyance Containing Covenants or Repre- sentations of Title. 1067. II. Transfer of Existing Title by Estoppel Arising from Represen- tations. § 1062. Outline of Discussion. There are two methods in which title to land may pass by estoppel, namely: (1) In case of the transfer of an after-acquired title by estoppel arising from a con- veyance of the land made prior to the acquisition thereof by the grantor ; (2) in case of the transfer of title by estoppel arising from an oral or written misrepresentation on the part of the owner of land, whereby an innocent purchaser is misled into purchasing a defective title. § 1063. I. Transfer of After-Acquired Title. When one con- veys land to which he, at the time, has no title, but subsequently acquires title thereto, such after-acquired title sometimes enures by estoppel to the grantee. We shall examine briefly the following instances of the opera- tion of this principle: (1) Where the prior transfer is by feoff- ment at common law, fine or recovery; (2) where it is by lease; and (3) where it is by a conveyance containing covenants or repre- sentations of title. § 1064. Same — 1. Transfer by Feoffment, Fine or Recovery. If a grantor, having no title to land, should nevertheless convey it at common law by a feofl^ment with livery, or by a fine or com- mon recovery, and should subsequently acquire a title thereto, such feoffment, fine or recovery always operated to transfer to the feoffee, etc., the after-acquired title, provided there was contain- ed therein the "ancient warranty" or covenant real. In such cas- es, as we have seen,^ the warranty had not only the ordinary and personal effect of rebutting the claim of the grantor or his heirs to the land under the after-acquired title, by virtue bf the estop- pel of the warranty, but also the much higher operation of actu- 1 Ante, § 899. (818) Ch. 42] ESTOPPEL — COVENANTS OF TITLE. § 1066 ally transferring and passing to the grantee the after-acquired es- tate." § 1065. Same' — 2. Transfer by Lease. At common law a lease, made by a person who has no estate, or at least no vested estate, in the premises, while it can operate nothing immediately, may operate by estoppel, in case the lessor should afterwards acquire the land. Thus, if an heir apparent, or a contingent remainder- man, or one having a contingent interest under an executory de- vise, or who has no title whatever, makes a lease by indenture, and subsequently an estate in the land yests in him, the indenture will at common law operate by way of estoppel to entitle the lessee to hold the land for the term of years granted him; and this estop- pel, when it becomes effectual and can operate on the interest, will be fed by the interest, and the lease will be regarded as a lease carved out of an actual ownership.^ A lease operates by way of estoppel upon the maxim, "Ut res valeat, magis quam pereat;" and therefore, if it can operate by way of passing an interest, it shall not operate by estoppel. Hence, where a lessor possessed of an interest leases an estate which may not endure beyond the period of his own interest, though in fact the leased estate does last the longer, a title subsequently ac- quired by the lessor will not operate by estoppel to keep alive the leased estate; as where A., lessee for the life of B., makes a lease for twenty years by deed indented, and afterwards purchases the reversion in fee, and B. dies, A. shall avoid his own lease, see- ing that it takes effect out of A.'s own original interest (which was terminated by B.'s death), and therefore did not operate by estoppel.* § 1066. Same — 3. Transfer by Conveyance Containing Cove- nants or Representations of Title. At common law the doctrine of title to after-acquired property by estoppel was confined to the four forms of conveyance mentioned in the two preceding sections, and was not applied to such conveyances, as a grant, release or bargain and sale." 2 2 Min. Insts. 710 ; Rawle, Cov. § 243 ; 2 Th. Co. Lit. 353, note (B, 1), 456, 457 ; Doe v. Oliver, 10 Barn. & Cr. 181 ; Sturgeon v. Wingfleld, 15 Mees. & W. 224 ; Burtners v. Keran, 24 Grat. (Va.) 66. 3 2 Min. Insts. 767 ; 2 Th. Co. Lit. 415, note (L) ; Bac. Abr. Leases (O) ; Trevivan v. Lawrence, 1 Salk. 276 ; Doe v. Seaton, 2 Cromp., M. & R. 72S. 4 2 Min. Insts. 767, 768 ; 2 Th. Co. Lit. 416, note (L), 432 ; Wynn v. Har- man, 5 Grat (Va.) 157. BAnte, § 899; 2 Min. Insts. 710; Rawle, Cov. §§ 244, 246, 262; Right v. Bucknell,-2 Barn. & Ad. 278; Doe v. Oliver, 5 M. & R. 202, 2 Smith's Lead. Cas. 511, 514, et seq. ; Reynolds v. Cook, 83 Va. 821, 3 S. E. 710, 5 Am. St. C819) § 1066 ESTOPPEL COVENANTS OF TITLE. [Oh. 42 But it is generally admitted that if a conveyance of any kind purports to transfer a good title to certain property, whether this appears from recitals, covenants, or in any other manner, there is, in equity at least, a personal estoppel upon the grantor thereafter to deny that such estate has actually passed to the gran- tee, or to claim the land under a subsequently acquired title as against the grantee, in part to avoid circuity of action, and in part on general equitable grounds of good faith and estoppel." The distinction between a personal estoppel upon the grantor and an estoppel by which the after-acquired title actually passes seems to be important only where the grantor subsequently con- veys the after-acquired title to a third person. In such case, 'if the estoppel be merely upon the grantor personally, it would not bind such subsequent purchaser of the after-acquired estate, at least, if he be a purchaser for value and without notice of the deed made before the acquisition of the title by the grantor; while if the estoppel operates to pass the after-acquired title it- self, it is equally as binding upon a purchaser from the grantor, even, it seems, though for value and without notice, as upon the original grantor.'' It should be noted, however, that no estoppel occurs, if the con- veyance purports to transfer merely such interest as the grantor owns at the date thereof as in case of a quitclaim deed, and the fact that such conveyance contains covenants for title is im- material.^ It should also be observed that the transfer of after-acquired ti- tle by estoppel on the part of a covenantor supposes that he has acquired the subsequent title on his own account and not as a mere trustee, express or indirect, for another. Hence if he buys the subsequent title with another's money, whereby he becomes an im- Eep. 317. In some of the states, however, siicli effect is given to these con- veyances, especially if they contain certain covenants for title. Rawle, Gov. § 248. e Ante, § 915 ; 2 Min. Insts. 710 ; Rawle, Gov. §§■ 245, 255 ; Bigelow, Es- toppel, 395 ; Goodtitle v. Bailey, Cowp. 601 ; Eight v. Bucknell, 2 Barn. & Ad. 278 ; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703 ; Flan- ary v. Kane, 102 Va. 549, 566, 46 S. E. 312, 681. 7 Rawle, Gov. § 259 ; 2 Tiffany, Real Prop. § 456 ; Bigelow, Estoppel, 413 et seq. See Reynolds v. Gook, 83 Va. 822, 823, 3 S. E. 710, 5 Am.' St. Rep. 317 ; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703 ; French's Les- see V. Spencer, 21 How. 228, 16 L. Ed. 97. 8 Rawle, Gov. § 250 ; Hanrick v. Patrick, 119 U. S. 156, 175, 7 Sup. Gt. 147, 30 L. Ed. 396 ; Blanchard v. Brooks, 12 Pick. (Mass.) 47 ; Fay v. Wood, (15 Mich. 390, 32 N. W. 614; Gibson v. Ghouteau, 39 Mo. 536; Quivey v Ba- ker, 37 Cal. 465. (820) Ch. 42] ESTOPPEL — EEPRESENTATIONS. § 1067 plied trustee for him who advances the consideration,' this woflld not operate to vest such after-acquired title in his grantee by es- toppel.^" § 1067. II. Transfer of Existing Title by Estoppel Arising from Representations. It has long been an established and familiar rule in the courts of equity that one who knowingly makes a false representation to another, upon which the latter acts, is bound to make the representation good,^^ and also that one's fraudulent fail- ure to make known one's title to a person about to purchase the land from another reverses the ordinary rule of priorities, and postpones the former's claim to that of the purchaser.^^ Thus, if a person, having title to land, openly disclaims any interest therein, or fails to assert his rights when he should do so, and thereby causes one ignorant of the true state of the title to purchase the land from a third person, he is estopped there- after — in equity, at least — to assert any claim to the land.^* So, also, the true owner may be estopped to set up his title against a person who has expended money for improvements on land under the belief that he has a perfect title to the land, if the true owner rests under an obligation to inform him of the true condition of the title.^* 9 Ante, § 421. 10 2 Min. Insts. 710, 711; Gregory v. Peoples, 80 Va. 357, 358; Raines v. Walker, 77 Va. 95. See ante, § 915. iiBigelow, Estoppel, 557; Evans v. Bieknell, 6 Ves. 174. 12 2 Tiffany, Real Prop. § 457; 2 Pomeroy, Eq. Jur. §§ 686, 731. These equitable principles are now, however, generally recognized and enforced in courts of law as well as of equity. 2 Tiffany, Real Prop. § 457. See Pick- ard V. Sears, 6 Ad. & El. 469. 13 Dickerson v. Colgrove, 100 tl. S. 578, 25 L. Ed. 618; Chesapeake & O. R. Co. V. Walker, 100 Va. 70, 40 S. E. 633, 914; Coogler v. Rogers, 25 Fla. 853, 7 South. 391; Marines v. Goblet, 31 S. C. 153, 9 S. E. 803, 17 Am. St. Rep. 22; Guffey v. O'Reiley, 88 Mo. 418, 57 Am. Rep. 424; Bryan v. Ra- mirez, 8 Cal. 461, 68 Am. Dec. 340. To constitute an equitable estoppel that will operate to transfer title to property, the party estopped must have been apprised of the true state of his own title, and must have been guilty of fraud, actual or constructive, or of negligence so gross as to imply fraud, and the other party must not only be destitute of all knowledge of the true state of the title, but of any convenient means of acquiring such knowl- edge, and he must have relied upon the admissions of the party estopped to such an extent as that he will be injured by allowing the truth of them to be disproved. Chesapeake & O. R. Co. v. Walker, supra. 14 2 Tiffany, Real Prop. § 457; Kirk v. Hamilton, 102 V. S. 68, 26 L. Ed. 79; Redmond v. Excelsior Savings Fund & Loan Ass'n, 194 Pa. 643, 45 Atl. 422, 75 Am. St. Rep. 714; Dellett v. Kemble, 23 N. J. Eq. 58; Gibson V. Herriott, 55 Ark. 85, 17 S. W. 589, 29 Am. St. Rep. 17. But the mere fail- ure to assert one's title, without actual misrepresentation in respect there-' (821) § 1067 ESTOPPEL REPRESENTATIONS. [Cb. 42 In conclusion, it is worthy of observation that an estoppel of this kind is to be distinguished from the sort discussed in the pre- ceding sections by the fact that since this sort is based upon a representation that one has not the title, and not that he has it, it is ineffectual to transfer a title subsequently acquired by the party making the misrepresentation.^" to, does not operate an estoppel, if the purchaser has notice of the true own- er's title by recordation or otherwise. Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 337, 23 L. Ed. 927; Clark v. Parsons, 69 N. H. 147, 39 Atl. 898, 76 Am. St. Rep. 157. 15 2 Tiffany, Real Prop. § 457; Gluckauf v. Reed, 22 Cal. 468; Donald- son V. Hibner, 55 Mo. 492. (822) CHAPTER XLIII. TITLE BY DEDICATION. § 1068. The Nature of Dedication. 1069. The Intention to Dedicate. 1070. Acceptance of the Dedlcationj § 1068. The Nature of Dedication. Dedication is a form of transfer of land by which an individual grants to the public rights of user in his land, as where one dedicates land to the public use for a highway, park, square, cemetery, school or, in some states, for religious or charitalble purposes.^ A dedication of land to public uses may be made, like any other grant, subject to conditions, reservations or restrictions up- on its use by the public. Thus a highway may be dedicated for use at particular seasons, or for certain purposes, only,^ or for use by pedestrians alone, or by a certain class of vehicles.' § 1069. The Intention to Dedicate. No special form or cere- mony is required for a dedication, and the statute of frauds is not applicable thereto, so that neither deed nor writing is necessary to the validity of a dedication to public uses ; the only essential, so far as the grantor is concerned, being clear and unequivocal evi- dence of an intention to dedicate.* Mere acquiescence by the owner in the use of the land by the 1 2 Tiffany, Real Prop. § 421 ; Elliott, Roads and Streets, c. 5 ; City of Richmond v. Gallego Mills Co., 102 Va. 165, 45 S. E. 877; (parks and squares) City of Cincinnati v. White, 6 Pet. 431, 8 L. Ed. 452; Abbott v. Cottage City, 143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 143 ; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554; (cemeteries) Hunter v. Trustees of the Village of Sandy Hill, 6 Hill (N. Y.) 407 ; Howry v. City of Providence, 10 R. I. 52 ; Davidson v. Reed, 111 111. 167, 58 Am. Rep. 613; (schools) Klinkener v. School Directors of McKeesport, 11 Pa. 444 ; Board of Education of In- corporated Village of Van Wert v. Inhabitants of Town of Van Wert, 18 Ohio St. 221, 98 Am. Dee. 114; Chapman v. Floyd, 68 Ga. 455; Board of Regents for Normal School Dist. No. 3 v. Painter, 102 Mo. 464, 14 S. W. 938, 10 L. R. A. 493 ; (charitable and religious purposes) Beatty v. Kurtz, 2 Pet. 566, 7 L. Ed. 521; City -of Hannibal v. Draper, 15 Mo. 634; Williams v. First Presbyterian Society in Cincinnati, 1 Ohio St. 478. 2 Mercer v. Woodgate, L. R. 5 Q. B. 26 ; Hughes v. Bingham, 135 N. Y. 347, 32 N. B. 78, 17 L. R. A. 454; Ayres v. Pennsylvania R. Co., 52 N. J. Law, 405, 20 Atl. 54. 3 Stafford v. Coyney, 7 Barn. & Cr. 257 ; Trustees of Methodist Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696. * Lynchburg Traction Co. v. Guill, 107 Va. 86, 57 S. B. 644 ; Wright v. Tukey. 3 Cush. (Mass.) 290; Hall v. McLeod, 2 Mete. (Ky.) 98, 74 Am. Dec 400 ; Godfrey v. Alton, 12 111. 29, 52 Am. Dec. 476. (823) § 1069 DEDICATION INTENT. [Oil. 43 public does not, standing alone, establish the intention to dedicate it permanently to the public use; ° but such use, especially if long continued, taken in connection with other circumstances, may raise a presumption of such an intention on the part of the owner.' If the owner of land divides it into lots for sale, intersecting it by streets and alleys regularly laid off upon the ground, this constitutes a dedication of the land so occupied by streets to high- way uses.'' But if the streets are not actually opened up, but only appear on plats or maps, to which reference is made in the deeds to the lots, it is more questionable whether this amounts to a dedica- tion, independently of statute, though perhaps the weight of au- thority is in favor of the view that it is at least an inchoate dedi- cation, liable to be abrogated by subsequent events, such as aban- donment of the -project.^ § 1070. Acceptance of the Dedication. Until the dedication is accepted by the public, it is in the nature of a mere offer or license by the owner, which he may withdraw at any time,' and which will impose no responsibility for maintenance or repairs upon the B Mackey v. Hyde Park, 134 U. S. 84, 10 Sup. Ct 512, 33 L. Ed. 860; West Point V. Bland, 106 Va. 797, 56 S. E. 802; Hayden v. Stone, 112 Mass. 346; Weiss V. South Bethlehem Borough, 136 Pa. 294, 20 Atl. 801 ; Lewis v. City of Portland, 25 Or. 133, 35 Paci 256, 22 L. R. A. 736, 42 Am. St. Kep. 777. 6 Buntin v. City of Danville, 93 Va. 200, 204, 24 S. E. 830 ; Weiss v. South Bethlehem Borough, 136 Pa. 294, 20 Atl. 801; City of Chicago v. Chicago, R. I. & P. Ry. Co., 152 111. 561, 38 N. E. 768 ; New Orleans, J. & G. N. R. Co. V. Moye, 39 Miss. 374. On the other hand, however, the intention to dedicate may be rebutted — in some measure, at least — by proof that the owner has continued to pay taxes upon the land. 2 Tiffany, Real Prop. § 422 ; Ban- man V. Boeckeler, 119 JIo. 189, 24 S. W. 207; San Leandro v. Le Breton, 72 Cal. 170, 13 Pac. 405; Rhodes v. Town of Brightwood, 145 Ind. 21, 43 N. E. 942. f Elliott, Roads and Streets, §§ 117, 118 ; 2 Tiffany, Real Prop. § 422 : Glasgow V. Mathews, 106 Va. 14, 54 S. E. 991; City of Norfolk v. Notting- ham, 96 Va. 34, 30 S. E. 444 ; Invin v. Dixion, 9 How. 10, 31, 13 L. Ed. 25 ; Trustees of Methodist Episcopal Church of Hoboken v. City of Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 006; Quicksall v. City of Philadelphia, 177 Pn. 301, 35 Atl. 609 ; Mayor & City Council of Baltimore v. Frick, 82 Md. 77, .33 Atl. 435. 8 See authorities cited in the preceding note. But see In re Eleventh Avenue, 81 N. Y. 436; Prescott v. Edwards, 117 Cal. 298, 49 Pac. 178, 59 Am. St. Rep. 186. In such case, the individual purchasers of the lots at least would acquire private rights of way over the streets thus mapped out. 2 Tiffany, Real Prop. § 820. » Terry v. McClung, 104 Va. 599, 52 S. E. 355; Hayden v. Stone, 112 Mass. 346; Baldwin v. City of Buffalo, 35 N. Y. 375; Price v. Town of Breckenridge, 92 Mo. 378, 5 S. W. 20; Prescott v. Edwards, 117 Cal. 298 49 Pac. 178, 59 Am. St. Rep. 186 ; Clendenin v. Maryland Const. Co " 86 Md. 80, 37 Atl. 709. (824) Ch. 43] DE-DICATION ACCEPTANCE. § 1070 public authorities/" neither of which consequences result if there has been an acceptance. ^^ This acceptance by the state or municipal authorities may be informal or implied, as well as formal and express, as when the authorities in charge of such matters, without express acceptance, make repairs and improvements.^^ Indeed, after an ofifer of dedi- cation, acceptance may often be presumed by the jury from mere user by the public, though the authorities take no notice of the offer.i^ If land be dedicated for particular public uses, and the dedi- cation is accepted, the authorities are bound to use it for such purposes, and their user of the land for other purposes may be restrained in equity upon the application of owners of other land injured by such user/* or by the dedicator himself, if he has re- tained the ultimate ownership of the land in his own hands.^"' But such improper use by the authorities does not terminate the right of the public to use the land in the manner prescribed by the dedicator.^® In case the use for which the land is dedicated to, and accepted by, the public is abandoned or becomes impossible, the land re- verts to the original dedicator or those claiming under him.^^ 10 Elliott, Roads and Streets, § 1.jO ; Ricliniond City v. Gallego Mills Co., 102 Va. 165, 4.5 S. E. 877; Booraem v. North Hudson County Ry. Co., 39 N. J. Eq. 465; City and County of San Francisco v. Calderwood, 31 Cal. 585, 91 Am. Dee. 545 ; State v. Atherton, 16 N. H. 203. 11 Terry v. McClung, 104 Va. 599, 52 S. E. 355. 12 Richmond City v. Gallego Mills Co., 102 Va. 165, 45 S. E. 877; Wright V. Tukey, 3 Gush. (Mass.) 290 ; Dubois Cemetery Co. v. Griffin, 165 Pa. 81, 30 Atl. 840 ; Folsom v. Town of Underhill, 36 Vt. 580. 13 Richmond City v. Gallego Mills Co., 102 Va. 165, 45 S. E. 877; Attorney General v. Tarr, 148 Mass. 309, 19 N. E. 358, 2 L. R. A. 87 ; Flack v. Village of Green Island, 122 N. Y. 107, 25 N. E. 267 ; New York & L. B. R. Co. v. Borough of South Amboy, 57 N. J. Law, 252, 30 Atl. 628; City of Hartford V. New York & N. E. R. Co., 59 Conn. 250, 22 Atl. 37 ; Parsons v. Trustees of Atlanta University, 44 Ga. 529. 14 2 Tiffany, Real Prop. § 424; Gazley v. Ruber, 3 Ohio St. 399; State v. Travis County, 85 Tex. 435, 21 S. "W. 1029 ; Price v. Thompson, 48 Mo. 363 ; Lutterloh v. Town of Cedar Keys, 15 Fla. 306. 15 Hardy v. City of Memphis, 10. Heisk. (Tenn.) 127; 2 Tiffany, Real Prop. § 424. 16 2 Tiffany, Real Prop. § 424; Barclay v. Howell, 6 Pet. 498, 8 L. Ed. 477; Hardy v. City of Memphis, 10 Heisk. (Tenn.) 127. 17 2 Tiffany, Real Prop. §§ 365, 424; Glasgow v. Mathews, 106 Va. 14, 54 S. E. 991; Mahoning County Com'rs v. Young, 8 C. C. A. 27, 59 Fed. 96; Benham v. Potter, 52 Conn. 248; Baltimore & O. R. Co. v. Gould, 67 Md. 60, 8 Atl. 754; Bayard v. Hargrove, 45 Ga. 342; Board of Education of Incorporated Village of Van Wert v. Inhabitants of Town of Van Wert, 18 Ohio St. 221, 98 Am. Dec. 114 ; Heard v. City of Brooklyn, 60 N. Y. 242. (825) CHAPTER XLIV. THE REGISTRY OR RECORDING ACTS. § 1071. Origin of tlie Registry Laws. 1072. Purposes of tlie Registry Laws. 1073. Different Kinds of Notice. 1074. What Instruments Entitled to Record. 1075. Effect of Authorized Record. 1. As Between the Parties. 1076. 2. As to Subsequent Purchasers. 1077. 3. As to Encumbrancers or Creditors. 1078. Of what Facts the Record is Notice. 1079. Effect of Unauthorized Record. 1080. Effect of a Mlstalce by the Recording Officer. 1081. Of Priority in Recording. § 1071. Origin of the Registry Laws. The common law does not require any deed or writing in order to pass the title to lands, and of course, therefore, knows nothing of the doctrine of registry. The only notoriety which it demands in such transactions, and the only one compatible with the illiteracy of ancient Anglo-Norman society, is livery of seisin for estates of freehold, and entry for es- tates for years. ^ The first essay towards the policy of registering conveyances, other than conveyances of record, such as fines and common re- coveries, is to be found in the statute of enrollments (27 Hen. Vin, c. 16), which is an appendage to the famous statute of uses (27 Hen. VHI, c. 10). The framers of the statute of uses could not fail to perceive that, by means of its provisions, estates, even of inheritance, in lands might be created and transferred by deed merely, without actual livery of seisin, and, therefore, with a secrecy eminently promotive of fraud, and inconvenient to society ; and it was, therefore, enacted by the statute of enrollments, at the same session of Parliament which passed the statute of uses, that conveyances by bargain and sale (which were the more likely to be prostituted to bad ends) should not enure to pass a freehold un- less the same 'were by "writing indented, sealed and enrolled" in one of the courts of Westminster, or'else with the custos rotulorum of the county, within six months after the date of the writing. Clandestine bargains and sales of terms for years were deemed not worth regarding, such interests, indeed, having been perfectly pre- carious, and subject to the caprice or good faith of the lord, until lAnte, § 138 et seq. (826) Ch. 44] EEGISTEY — ORIGIN OF LAWS. § 1071 about six years before, when, by statute 21 Henry VIII, c. 15, the termor was protected against those fictitious recoveries whereby previously he was liable to be at any moment divested of his es- tate.'' The policy thus hesitatingly and imperfectly inaugurated was almost immediately frustrated by the ingenious adaptation of the lease and release to the purpose of conveying the title to lands,^ whereby conveyances might be as secret as could be desired. Nor does Parliament appear to have made any further effort to pre- vent so mischievous a result until the statute 2 & 3 Anne, c. 4 (A. D. 1704), which, together with several subsequent statutes, provided for a general registry of conveyances in the counties of York and Middlesex; and with so little favor were these at- tempts regarded that so philosophic an observer as Blackstone, aft- er fifty years' experience, speaks more than doubtfully of the utility of their results. "However plausible," says he, "these pro- visions may appear in theory, it hath been doubted by very com- petent judges whether more disputes have not arisen in those coun- ties by the inattention and omission of parties, than prevented by the use of the registers." * In the United States the Legislatures have been far more alive to the advantages of a general registration of all conveyances of, liens on, and transactions affecting lands, and the system has been gradually perfected, until it is believed there is little touching the title to lands which it concerns a purchaser or creditor to know which is not required to be set down in the registry of the county or corporation where the land is, and that registry is made so con- venient of access that for one to be deceived argues, in general, a negligence so gross as to exclude sympathy for the sufferer.^ There are many ways in which registration may be made to af- fect the title to land with which we are not here concerned. For example, the record of a judgment, of a mechanic's lien, or of a lis pendens, in those states which have substituted a statutory re- corded notice of lis pendens for the old doctrine of imputed notice, 2 2 Min. Insts. 938 ; 2 Bl. Com. 338 ; Bac. Abr. Barg. & Sale (E). sAnte, I 1000 ; 2 Mln. Insts. 810, 988. * 2 Min. Insts. 938 ; 2 Bl. Com. 343. : In some ways the public records cannot be relied on to disclose the state of a title. Births, marriages, and deaths affect titles ; yet even in those states which require a record of these events, the place of the event deter- mines the place of record. So, also, a disseisor may acquire the ownership of land by adverse possession; but there is no way in which he can make his title a matter of record under the recording acts. It Is true that the title can be made matter of judicial record by means of a bill in equity against the former owner to remove a cloud from the complainant's title. (827) § 1072 EEGISTEY PCRPOSBS. [Ch. 44 must be carefully looked for by the title searcher. But in these and other like cases the record not only gives the notice to the world, but itself creates — or, at least, marks the inception of — the lien or other change in the title. We are here concerned only with the recordation of those transactions, such as conveyances, mort- gages, leases, powers of attorney and executory contracts to con- vey, as are, in general, perfectly good as between the parties there- to in the absence of any record. § 1072. Purposes of the Registry Laws. The registry laws, or "recording acts," with which we are here concerned, provide for the making and keeping of a public record of certain instruments affecting the title to land. The purpose of this record is not to fur- nish proof of the state of the title, or even of the transaction set forth in a recorded instrument, but to give to every person propos- ing to acquire by purchase an interest in land which has already been conveyed, bargained away, encumbered, or leased by the per- son from whom such interest is to be acquired, or his privy, notice of such prior conveyance, contract, encumbrance, or lease. In considering the subjects of Trusts and Mortgages it was ex- plained how the application of the doctrine of "bona fide pur- chaser" would operate in certain cases to displace a claim to or in- terest in land, whether legal or equitable, in favor of a subsequent purchaser or encumbrancer of the land, who acquired his interest in good faith, for a valuable consideration and without notice of the prior claim. The recording acts are intended to prevent the in- justice which must be done to somebody imder the very necessary bona fide purchaser rule, by making the record of the instrument creating the prior claim constructive notice of the existence of such instrument to all subsequent purchasers. A purchaser or mort- gagee of land, therefore, has only himself to blame if he neglects the opportunity which the law offers him of giving this constructive notice, and no injustice is done him where the law treats the instru- ment under which he claims as void as against a subsequent pur- chaser of the same property who took without notice of his prior right.' § 1073. Different Kinds of Notice. The notice of a prior con- veyance which may be brought home to a subsequent grantee, so as to prevent him as a bona fide purchaser from displacing the prior conveyance, is of three kinds : Actual ; implied ; and con- 8 In connection with the general statement in the text concerning the beneficent purpose of the recording acts, the student should read what is said post, § 1081, about the anomalous acts in some of the states, which are so framed as actually to defeat their own object. (828) Ch. 44] EEGISTEY INSTRUMENTS ENTITLED. § 1074 structive. They all have the same effect. A subsequent grantee is said to have actual notice of a prior conveyance when he knows of its existence at the time he takes his own conveyance. He has implied notice when he has knowledge of facts which are justly and naturally calculated to excite the suspicion in the mind of a person of ordinary care and prudence that a prior conveyance has been made- — a suspicion that would prompt an inquiry which, if made, would lead to the discovery of the prior conveyance.' Con- structive notice is that* forced upon every purchaser of an interest in land by a conclusive presumption of law, which holds him to have acquired his interest with knowledge of all prior properly re- corded conveyances in the chain of title. This statutory construct- ive notice does not take the place of the other kinds of notice, so that a subsequent grantee could not take advantage of a prior grantee's failure to record his deed, if he took with notice of such prior deed.^ § 1074. What Instruments Entitled to Record. Before going into the effect of the record of a deed or other instrument, it is necessary to inquire what instruments are entitled to record. In the first place, as the whole matter of registration is the crea- tion of statute, no instrument is entitled to record unless its regis- tration is authorized by statute. Some of the statutes are more liberal than others in this respect. It is believed that most of the statutes are on the same lines as that of New York," which pro- vides for the registration of every written instrument by which any estate or interest in real property is created, transferred, mort- gaged, or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, ex- cept a will, a lease for a term not exceeding three years, an ex- ecutory contract for the sale or purchase of land, and powers of at- torney. While leases are specifically mentioned in most of the re- cording acts, the statutory term varies from one to five years. ^'' Moreover, there are states in which executory contracts and pow- 1 Ckimpare, ante, § 951. Thus, the open, notorious possession of land by a grantee under an unrecorded deed is notice to a subsequent grantee of the possessor's title. Lea v. Polk County Copper Co., 21 How. 493, 16 L. Ed 203; Bright v. Buckman (C. C.) 39 Fed. 243; Colby v. Kenniston, 4 N. H. 262; Smith v. Yule, 31 Cal. 184, 89 Am. Dec. 167; Watrous v. Blair, 32 Iowa, 63. 8 See cases cited supra. 9 Real Prop. Law, § 240. 10 Stimson's Am. Stat. Law, § 1624. Patents are not generally entitled to the benefit of the recording acts. Coles v. Berryhill, 37 Minn. 58, 33 N W. 213. (829) § 1074 EEGISTET INSTRUMENTS ENTITLED. [Gh. 44 ers of attorney are entitled to record and afford constructive no- tice.^^ Secondly, no instrument is ever entitled to record unless it is acknowledged or proved in a manner pointed out by the statute.^^ § 1075. Effect of Authorized Record — 1. As Between the Par- ties. The student is reminded that, as between the parties to an in- strument conveying or encumbering real property, it is generally true that the recording of the instrument is not necessary to its va- lidity,^" that even without record the instrument is perfectly good as between the parties thereto, and that the only result to be obtain- ed by recording the instrument is the notice which is thereby con- clusively given to certain persons of the fact that such instrument has been executed and delivered. § 1076. Same — 2. As to Subsequent Purchasers. Whatever the terms of the recording acts, their effect is to render every instru- ment which is required to be recorded absolutely void as against certain persons until and unless recorded. The persons in whose favor such unrecorded instrument is held void are the persons pro- tected by these acts ; and it is obvious that it behooves every gran- tee or mortgagee to place his -deed promptly on record or run the risk of losing his interest in favor of some person whom he had failed to notify of his deed. Although there is no difference between the states as to the principle of registration, some acts extend their protection to more classes of persons than others do. But one class of persons is universally protected — subsequent pvtrchasers for a valuable con- sideration, without notice of a prior unrecorded instrument. One who takes by descent is obviously not a purchaser, and, oth- erwise, he would not be entitled to protection against a prior un- recorded deed of his ancestor, for he pays no valuable considera- tion. But a purchaser from the heir will be protected to the same extent as if he had purchased from the ancestor.^* A mortgagee is a purchaser within the meaning of the term as used in the re- cording acts; ^^ and so is a trustee under a deed of trust to secure debts.i" 1 1 In some of these states these instruments are specifically mentioned ; in others, the courts have held the general terms of the statutes as broad enough to include them. Webb, Record of Title, §§ 29, 37 ; 2 Reeves, Real Prop. § 1121. 12 Post, § 1079. 13 Ante, § 926. 1* Earle v. Fiske, 103 Mass. 491; Blake v. Graham, 6 Ohio St. 580, 67 Am. Dec. 360. i5Fargason v. Edrington, 49 Ark. 207, 4 S. W. 763; Weinberg v. Rempe, 1.1 W. Va. 829. 16 Wickham v. Lewis, 13 Grat. (Va.) 427; Kesner v. Trigg, 98 U. S. 50, (830) Ch. 44] REGISTRY EFFECT SUBSEQUENT PURCHASERS. § 1076 Subsequent purchasers will not be protected unless they have paid a valuable consideration/' which must have been paid before notice is received of the prior deed.^* It is not necessary that the consideration be money. Marriage is a valuable consideration.^ ° As to whether the cancellation of an antecedent debt is a valuable consideration, the authorities dififer; but the better opinion seems to be that it is not.^" The notice given by the record of a deed is not to the whole world, but only to those subsequently acquiring an interest from the same source. Thus, while a purchaser of mortgaged land would take with notice of a recorded mortgage, the record of the deed of conveyance would not be notice to the mortgagee. ^^ And while the record of the assignment of a mortgage would be notice to a subsequent assignee thereof, it would not be notice to the mortgagor or his assigns. ^^ Nor would the record of a deed be notice to a subsequent purchaser from a conflicting claimant, for the two deeds are not in the same chain of title; i. e., the two grantees do not claim from the same source. ^^ Once the record is properly made, it is made for all time, and the destruction of the record will not affect the notice, so that a subsequent purchaser, who, by reason of the destruction of the record, has really had no chance to learn of its existence, will be affected by the constructive notice to the same extent as if the record had not been destroyed.^* 25 L. Ed. 83. It is otherwise of an assignee in insolvency to pay creditors, for in his case the necessary valuable consideration is absent, and such as- signee takes the property subject to all the equities to which it was subject in the hands of the assignor, although he had no notice of them. Sere v. Pitat, 6 Cranch, 332, 3 L. Ed. 2i0 ; Brownell v. Curtis, 10 Paige (N. Y.) 210 ; ^-au Keuren v. JIcLaughlin, 21 N. J. Eq. 163. 17 2 Pom. Eq. Jur. § 74T; Snowden v. Tyler, 21 Neb. 199, 31 N. W. CGI; Frey v. Clifford, 44 Cal. 385 ; AVorthy v. Caddell, 76 N. C. 82. isHunsinger v. Hofer, 110 Ind. .390, 11 N. E. 463; Dresser v. Missouri & I. B. Const. Co., 93 U. S. 92, 23 L. Ed. 815. A mere recital of payment in the subsequent conveyance is not enough. Overstreet v. Manning, U7 Tex. 657, 4 S. W. 24.8. 19 Lionberger v. Baker, 88 Mo. 447. 20 Webb, Record of Title, § 207, where a large number of authorities are collated on both sides of the proposition. 2iWethersbee v. Farrar, 97 N. C. 106, 1 S. E. 616; First Nat. Bank v. Honeyman, 6 Dak. 275, 42 N. W. 771. 2 2 Mitchell V. Burnham, 44 Me. 302; Jones, Mortgages, § 473. 2 3 Kerfoot v. Cronin, 105 111. 609; Traphagen v. Irwin, 18 Neb. 105, 24 N. W. GS4 ; Straight v. Harris, 14 Wis. 509. As to the effect of a disseisor's recorded deed as notice to a subsequent grantee of the disseisee, see Wade, Notice, § 205. 24Armentrout v. Gibbons, 30 Grat. (Va.) 632; Shannon v. Hall, 72 111. 354, 22 Am. Rep. 146. (831) § 1077 EEGISTEY — EFFECT ENCUMBRANCERS AND CREDITORS. [Oh. 44 § 1077. Same — 2. As to Encumbrancers and Creditors. Most of the recording acts specify the creditors of a grantor as entitled to protection, along with subsequent purchasers, as against a prior unrecorded deed. As a general thing, the word "creditors," in this connection, is construed to mean only those creditors who, before the record of the prior deed, obtain some lien upon the land, by reason of the nature of the debt, or by judgment, levy of execution or attachment, or otherwise. ^° But in Virginia, West Virginia, and Tennessee, the term includes general creditors, and the same is true in those few states in which the record of a deed is requisite to its validity as between the parties. ^° § 1078. Of What Facts the Record is Notice. The proper rec- ord of an instrument is constructive notice of every fact affecting the title which is therein recited, or which is alluded to in such way as to put a reasonably prudent man upon an inquiry which, if instituted, would have resulted in bringing the fact to light and of the existence and terms of every instrument (although unrecord- ed) which is recited, and of all matter of law which results from the terms of the instrument. Thus the record of a mortgage with power of sale puts a subsequent purchaser upon notice of an ex- ecution of the power, although the latter does not appear on the record.^'' So, if a deed appeared on its face to be executed in fraud of a trust, the record would be notice of the fraud, and a purchaser under the deed would take accordingly.''^ So one who buys land under a recorded deed must take notice of whatever cove- nants it contains that run with the land.^" It is important to note, however, that record is not notice of facts outside of the subsequent purchaser's chain of title. ^^ Sup- 2 5 Stevenson v. Texas & P. R. Co., 105 U. S. 703, 26 L. Ed. 1215. The student is liere reminded that at common law a judgment does not operate as a lien on real property belonging to the judgment debtor, and that one who furnishes labor or materials for the improvement of land acquires at common law, no lien on the land analogous to liens given by the common law to certain bailees of chattels. All such liens upon land are of statutory creation. 2 6 Webb, Record of Title, § 196. 2rHeaton v. Prather, 84 111. 330. See Hamilton v. Nutt, 34 Conn. 501; Viele V. Judson, 82 N. y. 32 ; Tripe v. Marcy, 39 N. H. 439 ; Webb, Record of Title, § 176 et seq. 2 8McPherson v. Rollins, 107 N. Y. 317, 14 N. E. 411, 1 Am. St. Rep. 826. The student is advised to refresh his memory upon the subject of construc- tive trusts, ante, § 424, et seq. 2 8 Schwallback v. Chicago, M. & St. P. Ry. Co., 69 Wis. 292 34 N W 128, 2 Am. St. Rep. 740. 3 Webb, Record of Title, § 180. (832) Ch. 44] REGISTRY — EFFECT OP MISTAKE. § 1080 pose that A. conveys to B., who fails to put his deed on record. B. then conveys to C, reciting the deed from A. C.'s deed being recorded, a purchaser from him must take notice of the unrecorded, deed from A. to B., with its recitals and covenants, for it is in his chain of title. But, under a like state of the record,, a subse- quent bona fide purchaser from A. would not, by reason of C.'s re- corded deed, be obliged to take, notice of the prior unrecorded deed from A. to B. § 1079. Effect of Unauthorized Record. The mere copying in- to the record book of an instrument which the statute does not authorize to be recorded has no effect whatever as constructive notice; that is to say, subsequent purchasers and encumbrancers are not bound to take notice of it. A deed that is void for any reason, as for forgery,^^ or the lack of proper execution,^" or be- cause it was never delivered (where delivery is an essential to validity), ^^ is not entitled to record. Moreover, it is a general prerequisite to the registration of any instrument that its execution be acknowledged before some designated officer, whose certificate must show that the statute has been substantially complied with,^* or that the execution be proved by the oath of one of the subscrib- ing witnesses. '° Nevertheless, the unauthorized record of an instrument may furnish actual notice of its existence and contents to one who sees it in examining the records. '° § 1080. Effect of a Mistake by the Recording Officer. It seems to be the rule everywhere that, when an instrument is properly re- corded, the ;time at which the constructive notice begins is the time when the instrument was filed. But whether the record is only to be considered as made when the instrument is actually regis- tered, the effect thereof as to notice relating back to the time of filing, or, in contemplation of law, the record itself is complete at the time of filing, the courts are not in accord." The question in a given state is an important one, for upon its answer will depend 31 McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848: Try V. Pry, 109 111. 466. 3 2 Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 528; Racouillat v. Sansevain, 32 Cal. 376. 3 3 Edwards v. Thom, 25 Fla. 222, 5 South. 707. 3 4 Coombes v. Thomas, .j7 Tex. 321; Sharpe v. Orme, 61 Ala. 263. 3 5 For a digest of the recording acts of the various states, see Webb, Rec- ord of Title, § 227 et seq. 3 6 Musgrove v. Bonser, 5 Or. 313, 20 Am. Rep. 737; Kei-us v. Svvope, 2 Watts. (Pa.) 75. 3 T It should be noted that the fact that in some states the record dates- from the filing and in others from the registration is not generally due to. MiNOB & W.Real Pkop.— 53 (833) § 1080 REGISTRY EFFECT OF MISTAKE. [Oh. 44 the determination of who must suffer from the mistakes of the recorder. SucK mistakes may be made in incorrectly copying the instrument, or in copying it into the wrong book, or even in a total omission to register it.*** Let us suppose the case of a mortgage for $10,000 executed by A. to B. This mortgage is duly filed for record by B., but the recorder, in copying it, makes the amount of the debt secured read t$l,000. Subsequently A. applies to C. for another loan, offering the same land as security. C. examines the records and finds a prior mortgage for what appears to be $1,000. Being satisfied with the security offered on the basis of what the record shows, he ad- vances the money and takes a second mortgage, without notice of the true amount of the first mortgage. In the event of a fore- closure and sale, the proceeds being insufficient to pay both mort- gages in full, how are the funds to be distributed? If the record of B.'s mortgage dated from the filing, B. did all that the law re- quired of him, and his rights are not impaired by the error of the recorder. He is entitled to be paid the amount of his mortgage in full out of the proceeds of sale. In this case the loss caused by the recorder's mistake will fall on C, although he was not in fault. ^n the other hand, if the record began with the actual recording, the notice to subsequent purchasers was limited to the facts dis- closed, and therefore C. took with notice only of a prior mortgage for $1,000.^* As to C, B.'s mortgage would be void as security for more than $1,000, and the funds would be distributed thus : First, B. would be entitled to $1,000; then C. would be entitled to be paid the full amount of his mortgage ; and if there were anything left it would be applied on B.'s mortgage. In those states where the record is notice of only the facts which appear on the record, it is incumbent on one who files his deed to see to it that the recorder does his work properly; otherwise he will run the risk of seeing a subsequent bona fide purchaser or creditor displace his estate or security.'"' The latter rule is the one adopted in most of the states, and it would seem to be the sounder and the one better in accord with the principles of equity. ^^ But whether the loss occasioned by a mistake in recording fall any essential differences In the statutes, but to differences of opinion on a question of construction. 3 8 Throckmorton v. Price, 28 Tex. 605, 91 Am. Dec. 334. 3 Beekman v. Frost, 18 Johns. (N. Y.) 544, 9 Am. Dec. 246. ■10 Barney v. McCarty, 15 Iowa, 515, 83 Am. Dec. 427; Succession of Falconer, 4 Rob. (La.) 7. *i See Webb, Record of Title, §§ 10, 17, where the authorities on both sides of this question are collated. (834) Ch. 44] REGISTRY — PRIORITY. § 1081 on the grantee, under one rule, or on a subsequent purchaser, under the other, the party damaged has a right of action against the recorder on his official bond.*'' § 1081. Of Priority in Recording. When we come to consider the conditions under which the rights of a bona fide purchaser are given by the various recording acts to a subsequent purchaser, we find that the states have ranged themselves into three groups : First, those states which unconditionally avoid a prior unrecord- ed deed in favor of a subsequent purchaser for a valuable consider- ation without notice. In these states, it is not necessary that the subsequent purchaser record his deed in order to gain priority un- der the act,*^ although, obviously, he ought to record it in order to protect himself against a third purchaser. Second, those states in which the prior deed is avoided in favor of a subsequent purchaser only on condition that the subsequent deed shall be first recorded. Here, although a subsequent pur- chaser acquire his interest in good faith and without notice of a prior unrecorded deed, if the first purchaser succeed in recording his deed first, he will not be postponed to the second purchaser.** In these states, prudence on the part of a grantee requires that the delivery of a deed and its filing for record be practically simul- taneous acts. Third, those states which give to every grantee a definite time within which he may record his deed without fear of being dis- placed by a subsequent bona fide purchaser without notice ; the rec- ord, if it be made within the prescribed time, relating back to the delivery of the deed.*^ It would seem that the states falling with- in this class withhold the very protection to give which was the raison d'etre of the recording acts. In these states, the record of a deed after the prescribed time has the effect of notice, but only from the date of record,* ° there being no relation back to the date of delivery. *2 Giffen v. Barr. 60 Vt. .599. 1.5 Atl. 190: Fox v. Thibault, 33 La. Ann. 32 ; Fogarty v. Finlay, 10 Cal. 239, 70 Am. Dec. 714. 43 Steele v. Spencer, 1 Pet. 552, 7 L. Ed. 259 ; Gardner v. Early, 72 Iowa, 518, 34 N. W. 311; Edwards v. Tliom, 25 Fla. 222, 5 South. 707. *4Fallass v. Pierce, 30 Wis. 443. In Webb, Record of Title, § 13, it i.s stated that this is the rule by the express terms of the acts in nearly one- third of the states and territories. 45iPhifer v. Barnhart, 88 N. C. 333; King v. Fraser, 23 S. C. 543; Ander- son V. Dugas, 29 Ga. 440. 46Anderson v. Dugas, 29 Ga. 440; Coster's Ex'rs v. Bank of Georgia, 24 Ala. 37 ; Den ex dem. Head v. Richman, 13 N. J. Law, 43 ; Nice's Appeal, .-4 Pa. 200. (835) INDEX. [the figuees refek to sections.] A ABANDONMENT, of dedicated land, 1070. of easement extinguishes it, 105, 108, 1070. wliat is, 93. of equity of redemption, 556. of leased premises, an eviction, 373. of user affects prescriptive title, 848. of vendor's lien, 587. ABEYANCE, of freehold, 136, 326, 592, 594, 651, 676. of inheritance, 651. ABSTRACT OF TITLE, see Description ; Recordation ; Registry. ACCEPTANCE, of deed, 887, 962. See Deed, of grantee in deed poll presumed, 887. of offer to dedicate, 1070. See Dedication, of remainderman not a party to deed, S87. ACXJIDENT, nonexecution of power due to, aided, 1054. See Power. ACCOUNTING FOR RENTS AND PROFITS, see Rents and Profits, between coparceners, 731, 773. between joint tenants, 731. between tenants in common, 731, 757. in partition suits, 773. ACCRETION, alluvion as an, 811, 813, 814. avulsion as an, 815, 816. gradual and imperceptible, 811, 813, 814. island formed by, 816. land formed by, belongs to whom, 812-816. neither gradual nor sudden, 812, 816. reliction as an, 811, 813, 814. several sorts of, 811. sudden, 815, 816. title by, 811-816. Minor & W.Real Prop. (837) 838 INDEX. [The figures refer to section!.] ACKNOWLEDGMENT, of claimant's title stops running of statute of limitations, 839. of writings for registry. certificate of, 1074, 1079. date of, evidence of date of deed, 916. equivalent to proof by witnesses, 926. evidence of authenticity of deed, 1074. evidence of delivery of writing, 924. necessity for registry, 926. not necessary as between the parties, 926. registry after, 1074. ACRE, sale of land by the, 935. See Description ; Mistake of Fact. ACTION, assignment of right of, 993. dower, before assignment, a right of, 298, 299. dower in right of, 243. for Infringement of water rights, 51-55, 58, 59. See Water Rights. for waste, 393, 395, 396. See Waste. no curtesy in right of, 213, 216. of debt for freehold rent, 73. of ejectment, see Ejectment ; Eviction ; Title Paramount. right of, necessary for prescription, 852, 853. See Prescription. seisin distinguished from right of, 131. ACT OF GOD, covenant to repair embraces injuries by, 370. injury by, not waste, 379. ACT OP LEGISLATURE, rule against perpetuities applied to limitations made in contemplation of, 704. See Rule against Perpetuities. ADJACENT LAND, support by, easement, 100, 113, 114. natural right to, 92. use when way impassable, 112. ADMINISTRATOR, C. T. A., see Executor. ADMISSION TO RECORD, nature of, 1079. ADULTERY, effect of wife's, upon dower, 279, 280. ADVANCEMENT, thrown into hotchpot, 783. ADVERSE ACT, of servient owner suspends easement when, 108. ADVERSE POSSESSION, acts amounting to, 832, 838. actual or constructive, under color of title, 840. against grantee of state, 823. against husband after birth of issue, 227. against one claiming by executory limitation, 841. INDEX. SSd [The ggures refer tA sections.] ADVERSE POSSESSION— Continued, against remainderman or reversioner, 841. against widow before dower, assigned, 290. as a source of title, 820. as between coparceners, 771, 832, 838. as between co-tenants, 727, 7.'58, 771, 832, 838. as between joint tenants, 727, 832, 838. as between landlord and tenant, 198, 832, 838. as between mortgagor and mortgagee, 832, 838. as between tenants in common, 758, 832, 838. as between trustee and cestui, 832, 838. assignee of tenant by sufferance is in, 344. constructive, aided by actual, superior to merely constructive, 840. constructive, under color of title, 840. continuity of, 82Ch-830. devisee of one in, may tack possessions, 828. disabilities as prolonging period of, 821. disability of one co-tenant inures to all, 821. disclaimer by tenant of landlord as origin of, 198. disseisor of one in, cannot tack possessions, 830. distinguished from prescription, 843. dowress cannot tack possessions, 828. duration of, 821, 825. entry of claimant to oust one In, 842. exclusiveness of, 833, 851. fraudulent, 831. from mistake of boundaries, 835. grantee of one in, may tack possessions, 829. heir of one in, may tack possessions, 828. hostile character of, 834. nature of, 824. negatived when, 836-839. new right or title acquired by claimant, 841. no, against one whose right of possession is future, 841. no, against state or municipality, 823. no seisin of land whereof another is in, 213, 216. no, where occupant acknowledges claimant's title, 839. no, where occupant's possession is consistent with claimant's title, 838. no, where parties claim under same title, 837. notice of, to owner, 832, 840. notorious, 832. of grantee of tenant in common as against grantor's co-tenants, 833. of interlock as between junior and senior grantee, 840. of land covered with water, 832. of minerals under surface, 17. of one beginning possession in privity with owner, 832. of part, possession of whole when, 840. of widow's quarantine, 300. owner of surface not in, to owner of subjacent minerals, 17. period of, 821. privity necessary to tack possessions, 827-830. prolonged by claimant's disabilities, 821, 822. record of deed of disseisor as notice to grantee ,of disseisee,. 1076. .'?40 INDEX. [The flgurea refer to sections.] ADVERSE POSSESSION— Continued, requisites for, 824, 832. senior constructive, superior to junior, 840. tacking of disabilities, 822. tacking of possessions, 827-830. under claim of title, 834. under color of title, 834, 840. without color of title, confined to actual occupancy, 840. AFTER-ACQUIRED TITLE, of servient tract estops grantor to deny easement, 102. See Easement. transfer of, by estoppel, 915, 1062-1066. See Estoppel. transfer of, by feoffment, 1064. transfer of, by lease, 1065. transfer of, by warranty, 915, 1066. transfer of, by will, 1012. See Will. AGENT, see Power of Attorney, authority of, to make deed must be under seal, 888. See Deed, authority of, under statute of frauds, 888. See Statute of Frauds, delivery of deed to, 923, 925. filling in of blanks in deed by, 959. license exercisable by, when, 125. power cannot be delegated to, 1047. See Power. AGRICULTURAL FIXTURES, 30, 31. see Fixture. AID, . incident to feudal tenure, 9. praying in, 206. AIR, EASEMENT OP, see Easement, acquired by grant, 118. acquired by grant, but not by prescription nor implication, 118. arises by estoppel when, 102. pollution of, 96, 97. ALIEN, ancestor an, 785. conveyance by, 868. conveyance to, 270, 872. dower of, 270. dower of wife of, 270. See Dower. escheat of lands of, 785. heir an, 785. wife of may contract as feme sole, 863. ALIENATION, see Assignment ; Contract to Convey ; Conveyance ; Dedication ; Deed ; Devise; Power; Will, by tortious conveyance, 196, 329. See Tortious Conveyance, condition in restraint of, 151, 51C-525. See Condition. fines for, 12. of estate for life, 194, 196. See Life Estate. of estate for years, 329. See Estate for Years. INDEX. 841 [The figures refer to sections.] ALI ENATCION— Continued, of fee simple, 151. of fee tail, 174, 17(3-178. See Fee Tail. of land subject to mortgage, 570-574. See Deed of Trust ; Mortgage, power of, see Power. annexed to life estate creates fee when, 186, 708. incidental to estate for life, 194. Incidental to estate for years, 329. incidental to feuds, 4, 5, 12. in tenant in tail restricted, 166. ALIENEE, see Assignee; Purchaser. ALIEN ENEMY, incompetent to be a devisee, 1009. wife of, competent to contract, 863. ALLEY, see Easement, abandonment of, 93. dedication of, 1068-1070. See Dedication, used for light and air, as well as passage, 93. ALLODIAL TENURE, 2, 3. ALLUVION, apportionment of, 814. nature of, 811, 813. title to land by, 811, 813, 814. ALTERATION, of building, when waste, 381. of course of husbandry, waste, 383. See Waste. of executed contract, 957-959. of executory contract, 958, 959. ALTERNATIVE EXECUTORY LIMITATION, 692, 702. see Executory Limitation. ALTERNATIVE REMAINDER, 138, 595. see Contingent Remainder ; Remainder. ANCIENT DEMESNE, tenure in, 6. ANCIENT LIGHTS, 97, 118. ANCIENT WARRANTY, see Warranty, Ancient. ANIMALS, FENCING AGAINST, 117. ANIMUS RBVOOANDI, accompanying burning, etc., of will, 1024. See Wills- ANNUITY, definition of, 62. descendible to heirs when named, 16. distinguished from rent granted, 62. distinguished from "interest" or "income," 62. dower in, 264. 842 INDEX. [The figures refer to sections.] ANNTTITT— Continued, fee conditional in, 107. no estate tail in, 167. , not a "tenement," G2. not within statute de donis, 62. not within statutes of mortmain, 02. personalty, but descends to heir, 10, 02. ANTENUPTIAL CONVEYANCE, as preventing curtesy or dower, 271, 294. See Curtesy; Dower. APARTMENT, lease of, 323. "lodgings" distinguished from lease of, 323, 324. ownership of, 21. APPENDANT, see Appurtenant, common, 68-70. See Common ; Profit a Prendre, power, 1000. See Power. APPT.ICATION OP PAYMENTS, to debt secured by lien, 583. APPLICATION OF PURCHASE MONEY, purchaser to see to, 430-442. APPOINTMENT UNDER POWER, see Power. appointee within consideration under statute of uses, 1045. See Statute of Uses. creates estate by virtue of original instrument, 275, 1041, 1045. exclusive, 1035. illusory, 1036. nonexclusive, 1035. rule against perpetuities applied to, 1042. See Rule against Perpetuities. APPORTIONMENT, of alluvion, 814. of common, or profit 3. prendre, 70. of rent granted, 84. of rent reserved, 84, 207, 365, 366. See Rent. APPURTENANT TO LAND, easements or profits k prendre may be, 67-70, 936. See Easement ; Profit a. Prendre, land cannot be, 930. power, is coupled with an interest, 1060. is extinguished by donee's transfer of his own interest, 1060. See Power. ARREARS OP RENT, 71, 73. see Rent. ASSESSMENT, lite tenant's duty to pay local, 205. ASSIGNEE, see Assignment; Purchaser, appointed under power as, of donor of power, 1041, 1045. See Power, bound by covenant in lease when, 375, 378. See Covenant. INDEX. 84^ [The figures refer to sections,] ASSroXEE— Continued, dower assigned to widow's, 299, 305. dower of widow of, as against assignor's widow, 250, 251. See Dower; Priority, liability of, on covenant confined to time of occupancy, 377, 903. mention of, in covenant, 901. not liable on covenant broken before or after his occupancy, 377. of deferred payments due vendor may subject land to lien, 565-569. of land subject to lien, 570-574. of tenant for life or years. acceptance of new lease by, a surrender of old one, 985. See Sur- render, entitled to emblements when, 44, 46, 47. See Emblements, license by, to lessor to enter for specific purpose not a surrender, 985. release to lessee's, 976. release by lessor's, 976. rights and liabilities of, see Assignment ; Covenant, statutory power of, in bankruptcy to sell, 1040. suit by, against remote assignor on covenant, 913. ASSIGNMENT, see Alienation ; Assignee ; Conveyance ; Covenant, apportionment of rent on, of leased premises, 366. as a secondary conveyance at common law, 964, 971. assignee holding at increased rent, 991. assignee in shoes of assignor, 991. by widow of her dower before it is assigned her, 299. See Assignment of Dower ; Dower, distinguished from lease, 967, 991. See Lease, formalities of, 318, 991, 992. liabilities of assignee cease upon his, 994. nature of, 991. of debt secured by mortgage, 565-569. See Deed of Trust ; Mortgage, of dower, see Assignment of Dower ; Dower, of estate at will, 337. See Estate at Will. of estate by sufferance terminates it, 344. See Estate by Sufferance, of estate for life, 151, 194, 196. See Life Estate, of estate for years, 329. See Estate for Years, of fee simple, 151. See Pee Simple, of fee tail, 176-178. See Fee Tail, of land subject to mortgage or deed of trust, 570-574. of lease, 375-377. of license, 125. See License, of mortgage, effect of record as notice, 1076. of naked power, 993. of power coupled with an interest, 903. See Power, of remedies for rent, 361. of rent, 360, 361, 366. See Rent, of reversion. carries rent with it, 361, 366. covenants running with, 378. of right of entry or action, 476, 477, 993. parol, sufficient at common law, 992. property subject to, 993. 844 INDEX. [The figures refer to sections.] ASSIGNMENT— Continued, proper words of, 991. rights of assignee cease upon his, 994. transferror's whole estate must be assigned, 993. valuable consideration not essential to, 992. See Consideration. ASSIGNMENT FOR BENEFIT OF CREDITORS, see Creditor ; Fraudulent Conveyance, assignee not purchaser for valuable consideration, 1076. greater ratio secured to creditor if he will assent to fraudulent. 947. takes property of assignor subject to equities, although having no notice, 1076. ASSIGNMENT OF DOWER, see Dower, by whom assigned, 306. compulsory, 311-313. conditional, 308. in land whereof husband Is co-tenant, 246. instrument of, 307. judgment for dower, equivalent to, 251. out of dowable land only, 309. relates back to husband's death, 250, 251, 314. setting apart of dower upon, 310, 312. to whom assigned, 305. valuation of land for purpose of, 303, 304. warranty implied upon, 307. ATTACHMENT LIEN, creditors secured by, cannot take first mortgage and squeeze out second mortgage, 579. have no priority over defective first mortgage, 578. not purchasers, 578. See Creditor; Priority, growing crops liable to, 41. ATTAINDER OF TREASON OR FELONY, see Felony; Treason, effect of, upon conveyance, 867, 880. effect of, upon descent of land, 785. escheat because of, 785. ATTESTATION, of deed, 920. of will, 1017. See Attesting Witness ; Will of Land, form of, 1017. ATTESTING WITNESS TO DEED, authentication for registry by, 926, 1074, 1079. proof of deed by, equal to acknowledgment, 926. See Acknowledgment. proof of delivery of deed by, 924. subscription of deed by, not necessary, 926. unnecessary to validity of deed, 926. ATTESTING WITNESS TO WILL, see Will of Land, competency of, 1018. distinguished from witness called to prove will, 1017. form of attestation, 1017. INDEX. 845 [The figures reler to sections.] ATTESTING WITNESS TO WILL— Continued, no, required for holograph will, 1016. party as, 1018. signature of testator made before, 1017. signature of, to appear at end of will, 1017. to will in exercise of power, 1049, 1054. want of, does not defeat holograph will, 1016. ATTORNEY, see Agent; Power of Attorney. ATTORNMENT OF TENANT, 4, 856. AVULSION, of seal, 960. title to land by, 815, 816. See Accretion. AWAT-GOING CROPS, CUSTOM OF, 45. B BANKRUPTCY, grant to one until, 526. statutory power of sale in assignee in, 1040. See Power. BARGAIN AND SALE, see Conveyance ; Deed ; Statute of Uses ; Use. appointee under power in, within consideration, 1045. See Consideration ; Power, conveyance by, 401, 997, 998. form of deed of, 890. innocent conveyance, 1060. lease and release a form of, 1000. transfer under power in gross by, does not extinguish power, 1060. use created by, 400, 401. valuable consideration necessary to, 400, 401, 997. BASTARD, capacity of, to inherit, 785. deed to unborn, when void, 871. love for, does not support conveyance when, 999. remainder to unbegotten, void, 648. BLANKS, FILLING IN OF, 888, 959. BOND, condition not to aliene land annexed to, 522. See Condition, may take effect as a will, 1014. See Will of Land. BOROUGH-ENGLISH, TENURE BY, 6. BOTES, see Estovers. BOUNDARY, see Description, adverse possession from mistake of, 835. See Adverse Possession; Mis- take, oral compromise as to, 835. ^46 INDEX. [The figures refer to sections.] BUILDING, see Apartment. a fixture, 21-36. See Fixture. apportionment of rent on destruction of, 84, 366. distress for rent of furnislied, 76. See Rent. erected on another's land without permission belongs to owner of land, 21. erected on mortgaged land, 21. fixture may be annexed to, as well as to land, 23. license to erect on another's land, 21, 122. See License. ownership of, and of land severable, 21. support of, 114. tenant erecting, recovers no compensation for, 202. waste in, 26. See Waste. BURGAGE TENURE, 6. BURIAL RIGHTS, 121. c CANCELLATION, of deed, 961. of executory contract, 961. of lease, not a surrender, 984. See Surrender, of signature to will, 1024. of will, 1024. See Will of Land. CAPACITY OF ATTESTING WITNESS, see Attesting Witness to Deed ; Attesting Witness to Will. CAPACITY OF GRANTEE IN DEED, exists in general. 870. grantee an alien, 873. See Alien. a corporation, 874-879. a fiduciary, 881. a married woman, 870. See Married Woman. an infant, 870. an insane person, 870. attainted of treason or felony, 880. insufficiently designated. 871. unborn bastard, G48, 871. unincorporated body, 871. CAPACITY OF GRANTOR IN DEED, alien, 868. attainted of treason or felony, 867. corporation. 869. drunken, 861. infant, 8.")9, 860. insane person, 8.58. married woman, 282-287, 863-866. See Married Woman. non compos mentis, 858. under duress, 862. CAPACITY TO BE X DEVISEE, 1009, 1010. CAPACITY TO DEVISE, 1004, lOOS. INDEX. 847 [The figures refer to sections.] CEMETERY, dedication of land for, 1068-lOTO. See Dedication, rights in burial lot in, 121. See Easement, trust for, 464. See Trust. CERTIFICATE, of acknowledgment, 1074, 1079. See Acknowledgment ; Recordation ; Reg- istry. CESTUI QUE TRUST, see Trust ; Trustee. CESTUI QUE USE, see Statute of Uses ; Trust ; Use. CESTUI QUE VIE, see Life Estate ; Occupancy. CHARITY, dedication of land for, 106S-1070. See Dedication. defective execution of power in favor of, aided in equity, 1054. See Power, devise to, 464. trust for, 464. CHATTEL, annexed to land, 22-3G. See Fixture. executory limitation in. 682. See Executory Limitation. life estate in, 315. losing its identity on annexation to lands, 21, 23. may become realty, 22. mortgage of, see Mortgage. no fee tail in, 167. real, see Estate for Tears ; Landlord and Tenant ; Lease. recourse to, to dlstrein, 7(i. remainder in, 315, 682. See Remainder. rent does not issue out of, 76, 78. See Rent. CHILDREX, as heirs, 798. See Descent ; Heirs. as word of limitation in will, 143, 170-172. as word of purchase, 143, 172. illusory appointment among, 1036. power of appointment among, 1035, 1037, 1046. See Power. provisions for, a consideration to support deed, 999. will revoked in favor of pretermitted, 1027. CHIVALRY TENURE, 6, 14. CHURCH, devise to, 464. . pew in, 121. tomb in, 121. trust for, 404. vault in, 121. CITY, liability of, for support of land, 113. lot described in deed, 929, 933. See Description. 848 INDEX. [The figures refer to sections.] CIVIL DEATH, no, In United States, 186. of consort, does not give rise to curtesy or dower, 228, 255. of husband allows wife to contract, 803. terminates life estate, 186. CODICIL, see Will, republication of will by, 1028. revocation of will by subsequent, 1022. COLLATERAL CONDITION, see Condition. COLLATERAL HEIRS, see Heirs. COLLATERAL POWER, see Power, distinguished from power "simply collateral," 1060. is a power coupled with an interest, 1060. not extinguished by donee's transfer of his own interest, 1000. unless by tortious conveyance, 1000. same as a power in gross, 1060. COLLATERAL RELATIONSHIP, DEGREES OF, 791-793. see Descent ; Heirs, canon-law rule, 791. civil-law rule, 792. common-law rule, 793. COLLATERAL WARRANTY, 897-899. see Warranty, Ancient. COLOR OF TITLE, adverse possession under, 834, 840. See Adverse Possession. COMMISSIONER, dower assigned by, 300, 312. COMMON FISHERY, cannot be subject of prescription, 844. COMMON-LAW LIBIITATION, see Special Limitation. COMMON RECOVERY, a tortious conveyance, 196. See Tortious Conveyance. fee tail barred by, 176-178. See Fee Tail. married woman's conveyance by, 282, 864 See Married Woman. transfer of after-acquired title by, 1064. See Estoppel. COMMON, RIGHT OF, see Profit a Prendre, appendant to land, 68-70. apportionment of, 70. appurtenant to land, 67-70. definition of, 66. distinguished from easement, 06. extent of, measured by needs of land, 67- grant of, carries everything needful for enjoyment of, 66. INDEX. 849 [The figures reler to sections.] COM510N, RIGHT OF— Continued, in gross, 67-70. is a form of profit a, prendre, 66. nature of, 66. of estovers, 69, 70. of gravel, 69, 70. of minerals, 69, 70. of pasture, 68, 70. of piscary, 69, 70. of turbary, 69, 70. prescriptive title to, 843, 855. See Prescription, rent cannot issue out of a, 76. COMMONWEALTH, statute of limitations does not usually run against, 823. See Adverse Pos- session; Statute of Limitations. COMMUTED VALUE, of dower interest, 265, 296. of life estate, 204. COMPENSATION, see Damages. in equity for mistake, 953. See Mistake. COMPETENCY, of parties to deed, see Capacity of Grantee In Deed ; Capacity of Grantor in Deed, of subscribing vritnesses to wills, 1018. See Attesting Witness to Will. COMPLETE PURCHASER, application of doctrine of, 435. doctrine of, applied to purchaser of trust estate, 435. See Trust; Trus- tee. COMPROMISE, oral, as to boundary line, 835. CONCEALMENT, effect of, upon conveyance, 943. estoppel from fraudulent, 1067. CONDEMNATION, see Eminent Domain, of franchise, 64. right of dower in land after, 269. CONDITION. any person interested may perform, 483. appointment under power violative of, rejected, 1053. assignment of dower on, 308. assignment of right of entry for breach of, 476, 477. clause for, in deed or lease, 896. compliance with, 471. conjunctive, 4S5, 503. construction of, 470, 484, 485, 677. construed as subsequent rather than precedent, 677. curtesy in estate upon, 232. defeasance containing, 466, 995. MiNOE & W.Real Pbop. — 54 850 INDEX. [The figures refer to sections.] CONDITION— Continued, definition of precedent, 466. definition of subsequent, 466. delivery of deed upon, 925. See Escrow. destroyed by surrender of possession, 986. disjunctive, 485, 503, 563. distinguislied from defeasance, 466, 995. dower in estate upon, 232, 256. dowress cannot enter for breach of, in husband's lease, 314. effect of disclaimer under deed upon, 902. effect of re-entry for breach of, 474, 481. «ffect of violation of precedent, upon equitable conversion, 18. excuse for nonperformance of, 493-495. executory limitation subject to precedent, 679, 691. fee simple upon, distinguished from fee qualified, 158. forfeiture for breach of, relieved against in equity, 528-531. illegal, 504. implied, attached to fee simple, 467. implied in an exchange against eviction, 969. Implied in grant of estate for life, 195-198, 467. claim in court of record of greater estate, 197. disclaimer of tehure of landlord, 198. tortious conveyance, 196. implied in grant of estate for years, 329, 467. Impossible In the conjunctive and disjunctive, 503. precedent, 499. subsequent, 500-503. , in law, or special limitation, 479, 511, 523, 526. in restraint of alienation, 516-525. annexed to bond, 522. annexed to estate for life or years, 525. annexed to fee simple, 516-523. annexed to fee tail, 524, 649, 650. annexed to grant to corporation, 520. annexed to tract other than one granted, 521. annexed to wife's equitable separate estate, 519. in form of special limitation, 523. in restraint of marriage, 507-514. annexed to conveyance or devise of land, 509. annexed to legacies charged on land, 510. annexed to legacies charged on personalty, 512-514. in form of special limitation, 511. in restraint of trade, 506. land exempted by, from liability for grantee's debts, 526. liability of assignee upon, in lease, 994. liquidated damages, 531. marriage brocage, 508. merger in case of estate upon, 201. mode of creating, 470. modes of re-entry for breach of, 478. nature of, 466. noncompliance with, 472-478. penalty distinguished from remission of part of debt, 529. INDEX. 851 [The figures refer to seotions.l CONDITION— Continued, penalty relieved against in equity, 528-531. place of performance of, 48&-492. power extinguislied by failure of precedent, 1059. precedent, 466, 468, 470-472, 484. precedent, illegal, 504. precedent, impossible, 499. precedent, remainder dependent on, is contingent, 599-634. precedent, restraining marriage, 508, 509, 513, 514. presumed to lie subsequent rather than precedent, 600, 601. pro turpi causa, 505. quasi reversion after fee simple upon, 160. remainder defeated by subsequent, 592, 600, 650. remainder subject to precedent. Is contingent, 599, 600. repugnant, 515-527, 649. reservation of right of entry for breach of, 475. restricting use of premises granted, 527. right of entry for breach pf, passes with reversion, 476. not otherwise assignable, 477. rule in Dumpor's Case, 497. strictness in performance of, 484, 485. subsequent, 466, 469, 471, 472, 479, 480, 485. distinguished from conditional limitation, 480-482. distinguished from special limitation, 158, 190, 470, 511, 523, 520. illegal, 504. impossible, 500-503. in restraint of marriage, 508, 509, 511, 513, 514. repugnant, 515-527, 649. tender of performance of, 494. time of exercise of power, when a precedent, 1051. time of performance of, 483, 486-488. upon which fee conditional is held, 162. waiver of forfeiture for breach of, 498. waiver of performance of, 496, 497. whole estate, not part only, avoided by breach of, 649. who may perform, 483. will made upon, expressed, 1014. CONDITIONAL LIMITATION, see Executory Limitation, curtesy in, 233. distinguished from condition subsequent, 480--482. dower in, 233, 256. CONDITIONAL SALE, distinguished from mortgage, 540-544. CONFIRMATION, a secondarj' conveyance at common law, 9G4, 971. definition of, 987. inuring to enlarge a particular estate, 989. no livery necessary, 989. practically same as release by enlargement, 989. privity of estate necessary, 989. 852 INDEX. [The figures refer to sections.] CONFIRMATION— Continued, inuring to make sure a voidable estate, 988. applies only to voidable, not void, estate, 988, no privity of estate necessary, 988. no words of limitation needful, 988. instances of, 987. of infants' conveyance, 859. proper words of, 987. requisites of, 990. CONFISCATION ACTS OF CONGRESS, 867. CONFLICT OF LAWS, conveyance of land governed by lex situs, 856. law controlling wbat is a jointure, 291. CONSIDERATION, advancement of, by one other tban grantee raises trust, 421-423, 425. antecedent debt as, for conveyance under registry law, 1076. validity as to creditors, 949. appointee under power within the, under statute of uses, 1045. cestui que use must be within the, 996, 998. conveyance without, creates resulting trust, 415. validity of, as to creditors, 949, 9.52. See Voluntary Conveyance. deed of trust to secure antecedent debt, a transfer for valuable, under registry law, 1076. effect of recital in deed of payment of, 939. effect of want of, in deed, 938. as between parties, 938. as to existing creditors, 952. See Voluntary Conveyance, fraudulent, 941-952. See Fraudulent Conveyance, illegal, 940. immoral, 940. inadequacy of, as evidence of fraud, 944, 952. in restraint of marriage, 940. in violation of public policy, 940. involving mistake or ignorance, 953-955. See Mistake, marriage a valuable, 1076. no, needed to support a "grant," 968. nor an assignment of a lease, 902. of marriage, 1076. of natural love and affection, 400, 401, 999. proof of, by parol, 892, 998. recital of payment of, in a deed, 892. to support bargain and sale, 400, 401, 996, 998. to support covenant to stand seised, 400, 401, 999, to support lease and release, 1000. CONSTRUCTION, of condition, 470, 484, 485, 677. of deed against grantor, 186, 928. See Limitation. of provision for wife as jointure, 291, 292. of will, see Limitation. C50NSTRUCTIVE TRUST, 413, 424-428. see Trust. INDEX. 853 [The figures refer to sections.] CONTINGENT CURTESY, see Curtesy; Dower. CONTINGENT DOWER, see Dower. CONTINGENT ESTATE, by way of executory limitation, see Executory Limitation. by way of possibility of reverter, see Quasi Reversion. by way of remainder, see Contingent Remainder. CONTINGENT INTEREST, in members of a class, created by power coupled with a trust, when, 1046. CONTINGENT REMAINDER, see Limitation ; Remainder. alternative, 595, 639. attachment of, 659, 664. awaits regular expiration of preceding estate, 592, 650. cannot be accelerated, 638. classes of, 598-634. construed as vested when possible, 600. defeated by destruction of preceding estate, 594, 636, 637. by preceding estate void in Its creation, 593. definition of, 597. dependent on condition precedent not connected with termination of pre- ceding estate, 599. dependent on contingent termination of preceding estate, 599. dependent on contingent termination of preceding estate that never takes effect, 655. dependent on termination of preceding estate in designated manner, which ends otherwise, 656. disposition of Inheritance pending contingency, 651. double contingency, or contingency in double aspect, 138. due to possibility of gap, 594. 596, 597, 602. due to uncertainty of event, 597, S99. due to uncertainty of remainderman. 597, 604-634. effect of, interposed between freehold and Inheritance to bar curtesy or dower, 220, 221, 249, 252, 258. effect upon, of forfeiture of preceding estate for breach of Implied con- dition, 636, 637. of illegality of contingency, 648, 649. of merger of preceding estate, 636, 637. inheritance in abeyance, 651. Interpolation of fee simple, between particular estate and ulterior re- mainder, 653. Interpolation of, less than fee simple, 652. judgment, a lien on, 659, G64. liability of, for debts, 659, 664. limitations by way of, see Limitation. limited to certain person and on certain event, but without capacity to take effect, 602. limited to person unascertained or not in being, 604. limited upon an uncertain event, 599. must arise by same instrument and at same time as preceding estate, 593. must depend on event which may never happen, 599. 854 INDEX. [The figures refer to sections.] CONTINGENT REMAINDER— Continued, must not take effect in derogation of preceding estate, 592, 650. nature of, 597. of freehold, preceded by term for years, void as a, 592, G02, 00.3. but good as executory limitation, 592, 602, 603. of freehold, to be preceded by freehold, 592. period within which, may vest, 644-647. possibility of gap between preceding estate and, the usual criterion of a, 594, 602. precedent estate subject to condition precedent that never happens, 654. premature termination of preceding estate defeats, 592-594, 645. release of, by way of extinguishment, 977. rule against perpetuities applied to, 647. See Rule against Perpetuities. subject to attachment, 659, 664. subject to condition precedent, 599-601. subject to judgment lien, 659, 664. to heirs, issue, children, etc., of unborn person void, 646. to heirs, issue, descendants, etc., 602, 604, 607, 608. to heirs, etc., after freehold in ancestor — the rule in Shelley's Case, 60i»- 634. See Rule in Shelley's Case. to unbegotten bastard, invalid, 648. transfer of, 658. trustee to preserve, 637. CONTINGENT USES, 998, 999. CONTINUAL CLAIM, abolished in some states, 818. as prolonging period of limitation, 818. nature of, 134, 818. on livery of seisin, without entry, 134. CONTRACT, executed, see Conveyance; Deed, executory, • alteration of, 958, 959. cancellation of, 961. to convey land, see Contract to Convey Land ; Conveyance ; Specific Per- formance; Statute of Frauds, to execute power, equivalent to execution, when, 1054. to lease land, 321, 327. See Contract to Convey Land; Lease. . to mortgage, an equitable mortgage, 245, 585. CONTRACT TO CONVEY LAND, see Conveyance ; Specific Performance ; Statute of Frauds, appreciation in value accrues to vendee, 18. as security for purchase money, an equitable mortgage, 585. chattel annexed to land passes under, 34. deterioration in value accrues to vendee, IS. devise of hind subject to prior, 420. dower, in vendee's interest under, 259. In vendor's interest under, 244. See Dower, equitable conversion under, 18, 420. See Equitable Conversion, fixture severed by, 34. interest of vendee under, becomes land by equitable conversion, 18, 420. oral, when good, 883, 884. INDEX. 855 [Tbe figures refer to sections.] CONTRACT TO CONVEY LAND— Continued, registry of, 1074. required usually to be in writing, 883, 884. specific performance of, see Specific Performance. wherein wife has not joined, 287. vendee under, by one in adverse possession may tack possession, 829. where land has been previously devised, 420. wife's joinder in husband's, as bar to dower, 288. CONTRIBUTION, by land descended or devised with dower to pay incumbrances, 301. to build division fences, 117. to build party wall, 116. CONVERSION, see Equitable Conversion. CONVEYANCE, by agent under power of attorney, 888. See Agent ; Power of Attorney. by alien, 868. by assignment, see Assignmept. by bargain and sale, see Bargain and Sale. by confirmation. 987-990. by corporation, 869. by covenant to stand seised, see Covenant to Stand Seised. by deed, see Deed. by deed indented, 890. by deed poll, 890. by defeasance, 466, 964, 971, 995. by donee of power coupled with an Interest extinguishes power, when, 1060. See Power, by drunken person, 861. by exchange, see Exchange, by feoflfment, 890, 965. See Feoffment, by fine, 282, 864. by gift, 966. by grant, 968. See Grant, by joint tenant of estate of co-tenant, 729, by lease, 967. See Lease, by married woman. at common law, 282, 863, 864. to her husband, 865. See Married Woman, by mortgagor, 539. by one attainted of treason or felony, 867. by one coparcener to another, 774. by one joint tenant to another, 728. by one tenant in common to another. 761. by partition, 970. See Partition, by release, 972-978. See Release, by surrender, 979-986. See Surrender, by tenant by entireties, 745, 747. capacity of grantee in, 870-881, 889. of grantor in, 858-869, 889. chattels annexed to land pass by, of land, 34. common-law, 964^995. 85G INDEX. [The figures refer to sections.] CONVEYANCE— Continued, condition clause in, 896. See Condition. deed of, see Deed ; Statute of Frauds. deed not a, but mere evidence of a, 885. deed when necessary for a, 882-884. derivative or secondary, 971-995. effect of, of dominant tract to convert quasi easements into easements, 97. of servient tract, 100. fraudulent, see Fraudulent Conveyance, fructus naturales pass with, of land, 38. severed from land by, become personalty, 40. grantee in, see Assignee ; Complete Purchaser ; Purchaser, habendum clause in, 893. Se6 Habendum ; Premises, invalid, may create estate at will, 335, 347. nature of, 856. of fixture apart from land severs, 34. of land carries growing crop, 41. also growing trees, etc., 38. of land devised revokes will, 1025. of land on which license to be exercised revokes license, 126. of minerals apart from surface of land, 49. of oil or gas, a grant of land, not of mere profit a prendre, 61. of servient tract to purchaser without notice extinguishes easement, 109. original or primary, 964-970. origin of, 856. power of revocation in, 1043. of sale carries power to make, 1043. See Power, premises clause in, 892. See Premises, reddendum clause in, 895. rent or easement reserved in, 895. registry of, 1071, 1074. subject-matter of, 857. tenendum clause in, 894. to alien, 873. to corporation, 874-879. See Corporation, to dead grantee, 872. to Infant, or Insane person, 870. to married woman, 870. to one attainted of treason or felony, 880. trustee to execute, as directed by cestui, 433. under duress, voidable. 862. See Duress, under statute of uses, 996-1000. bargain and sale. 997. 998. covenant to stand seised, 999. lease and release, 1000. under statutes, 996-1001. validity of, governed by lex situs of land, 856. words of limitation in, 140-149. See Words of Limitation. CONVEYANCES, statute of, see Statute of Frauds. statute of fraudulent, see Fraud ; Fraudulent Conveyance. COPARCENER, accounting of one, to another for profits, 773. action by, or against, when joint, 770. INDEX. 857 [The figures refer to sections.] COPARCENER— Continued, adverse possession of one, against anotlier, 771, 832, 838. assignment of dower to wife of, in undivided portion, 310. compulsory partition, 776. conveyance by one, to another, 774, 975. curtesy in land held by wife as, 214, 215, 217, 775. deed for voluntary partition, 780. disability of one, does not prevent running of statute of limitations against another, 821. dower in land held by husband as, 246, 775. entry by one, inures to all, 771. estate of, always an inheritance, 765. existence of interest of, as breach of covenant of seisin, 906. heir succeeding to estate pur auter vie by special occupancy not a, 765. hotchpot applied to, 782, 783. See Hotchpot, incidents of estate of, 769-776. liability of one, to another, for profits, 773. for trespass, 772. for waste, 393, 772. modes of partitioning land, 780. nature of, 764. partition between, 776, 780, 781, 970. See Partition, possession of one, inures to all, 214, 215, 771. properties of estate of, 766-768. takes by descent, 764, 765. termination of estate of, 777-781. transfer by one, to stranger terminates estate of, 778. union of all shares in hands of one, terminates estate of, 779. unity of estate or Interest, 767. unity of possession, 768. unity of title, 766. unity severed terminates estate of, 777, 778. voluntary partition, 780, 781. implies a warranty, 781. with wife, possession of. Is wife's possession, for purpose of curtesy, 214, 215. OORODY, definition of, 62. decendible to heirs when named, 16, 62. dower in, 264. fee conditional in, 167. not converted into estate tail, 167. Is personal property, 62. not a "tenement," 02. not within statutes of mortmain, 62. CORPORATION, as grantee in deed, 874-879. at common law, 874, 875. in United States, 879. statutes of mortmain, 875-878. as grantor in deed, 869. condition restraining alienation annexed to grant to, 520. 858 INDEX. [The figures refer to sections.] CORPORATION— Continued, grant to impeachable only by state, 869, 879. no delivery needed (or deed of, 922. "nullum tempus occurrit regi" applies to municipal, 823, stockholder's interest in land of, personalty, 20. title to land of dissolved, 78D. words of limitation in deed to, 146. CORPOREAL HEREDITAMENTS, see Land. COUPLED WITH AN INTEREST, agency, 888. See Agent ; Power of Attorney, license, 123, 124, 126, 127. See License, power, 1033, 1047, 1048, 1050, 1060. See Power. COURSES AND DISTANCES, see Description, description of land by references to, 932. intent governs as between, 932. meaning of, 932, 933. measure of, 932, 933. monuments preferred to, 932. COVENANT, against incumbrances, 909, 912-914. broken, if at all, when made, 913. measure of damages upon, 914. not same as general warranty, 912. assignee to be mentioned, when, 375, 901. assignee's liability upon, in lease, 994. broken, does not run with land, 377, 903, 913. but may be expressly assigned, 903. creating an easement in equity, 902, 903. creating a trust in equity. 902. destroyed by surrender of possession, 986. unless already broken, 986. does not run with land as against appointee under power, 376. nor against sublessee, 376. does not run with reversion, if reversioner comes in by title paramount, 378. dower barred by wife's, when, 295. effect of, in estopping grantor to set up after-acquired title, 915. effect upon, of disclaimer under deed, 962. express, of title, 905-915. for benefit of others than parties, 902. for further assurance, 910. for re-entry for default, 372. grant of easement in form of a, 93. implied, 358, 368, 904. impossible of performance, .503. in conjunctive and disjunctive, 503. in deed of fee simple, 905-915. in deed of married woman's separate estate, 806. In lease, 367-372, 375-378. liability of assignee of land upon, 994. INDEX. 859 [The figures refer to sections.] COVENANT— Continued, liability of assignee of reversion upon, 994. liability of remote grantors upon, 913. measure of recovery upon, 358, 914. merger of estate may prevent running of, 378. not running with land, 901, 902. not to assign without leave, 371. of general warranty, 912. of quiet enjoyment, 358, 908. implied in lease, 358. of renewal in lease, 317. of right and power to convey, 907, 913. broken, if at all, when made, 913. may be used where grantor has no seisin, 907. of seisin, 906. effect of recovery upon, as bar to dower, 269, 284. of special warranty, 911. of title, 358, 368, 904-915. implied, 358, 904. no, in quitclaim deeds, 978. release of, by grantee after assignment, ineffectual, 913. runs with land usually, 913. except covenants broken, etc., 913. transfer of after-acquired title by estoppel arising from, 915, 1066. See Estoppel. of warranty, implied upon assignment of dower, 307. implied upon an exchange, 969. implied upon a partition, 781. personal, in deed, 900. privity of estate necessary to running of, 376, 901, 902. real, 897-899. See Warranty, relating to land not conveyed, 902. rights of assignee of reversion under, 994. running of benefits of, 903. running of burdens of, 903. running with land, 375-377, 903-915. application of power of appointment In case of, 1045. record of deed as notice, 1078. running with reversion, 378. .to execute power, equivalent to execution when, 1054. to pay rent, 366, 369. to repair, 370. to stand seised for love and affection. appointee under power in, not within consideration, 1045. consideration to support, 400, 401. conveyance by, under statute of uses, 401, 999. transfer by donee of power in gross by, does not extinguish power, 1060. iSee Power. use created by. 400, 401. CREDITOR, attachment lien, has no priority over defective first mortgage, 578. cannot subject more than debtor's interest, 425, 578. condition that land shall not be subjected to debts, 525, 526. 860 INDEX. [The figures refer to sections.] CREDITOR— Continued, conveyances in fraud of, 948-952. S^ Fraudulent Conveyance. definition of, under registry laws, 1077. dower before assignment not subject to debts, 299. dower in estate void as to, 242, 269, 284. equity of redemption subjected by, 537. executory limitation subjected by, 715. fee simple subjected by, 154. fee tail not subject to, 174. instruments to be recorded as against, 1074. judgment lien, has no priority over defective first mortgage, 578. See Priority. levy of execution on land conveyed in fraud of creditors, 948. mortgagee a personal, of mortgagor, 555, 559. mortgage implied from deposit of title deeds as against, 584. of cestui que trust may subject trust, 430. of deceased landowner may subject it, 154, 787. of donee of general power may subject land to donee's debts, when, 1035. of donee of power, made appointee under defective exercise thereof, aid- ed in equity, 1054. of husband, when superior to wife's dower, 301, 302. of trustee may subject trust estate when, 425, 444. power of attorney to, authorizing sale, equivalent to equitable mortgage, 585. remainder to be subjected by, 659. tacking of debt to mortgage, 552-554. See Tacliing. wife's release of dower does not operate as against a, who sets aside hus- band's deed, 242, 269, 284. CROPS, curtesy in growing, 268. dower in growing, 268. when personalty and when realty, 41-48. See Emblements; Fructus In- dustriales. CURTESY, see Dower, antenuptial conveyance in fraud of, 271, 947. arises by act of law, 784. barrable by sundry devices, 272-276. commuted value of, 265. death of wife essential to, 228. definition of, 208. distinguished from dower, 235, 237. divorce, bars, 212. dos de dote applied to, 220. duties of tenant by, in general, see Life Estate, husband's interest before birth of issue, 227. in conditional limitation, 238. in coparcenary estate, 775. in equitable estates, 223, 224. in equitable separate estate, 224. In equity of redemption, 537. INDEX. 861 [The figures refer to sections.] CURTESY— Continued, in executory limitation, 233, 688. in fee qualified, 231. in fee simple, 153. In fee simple absolute, wife dying without heirs, 230. in fee simple upon condition subsequent, 232. in fee tail, 179, 222. in fee tail, wife dying without issue, 230. initiate after birth of issue, 227. a vested interest, 227. adverse possession against, 227. becomes consummate after wife's death, 227. in joint estate of inheritance, 217. in land acquired by wife after birth and death of issue, 218, 226. in land disposed of by wife before birth of issue, 218, 226. in land wherefrom wife is evicted, 219. in land whereof wife is seised at her death, 218. in land whereof wife is unlawfully seised, 219. in partnership land, 19. in property destroyed, 234. in remainder, 220, 688. in reversion, 220. In right of entry or action, 213, 216. in statutory separate estate, 22.'5. in surplus, after satisfying lien, 223. in uses, 398. issue born alive during coverture essential to, 226. issue must take as heirs, not as purchasers, 222. legitimation of bastard, effect of, 220. marriage necessary for, 211. merger of possession by inheritance for, 221. nature of wife's Inheritance for, 220, 221. no, in life estate, 220. no intervening freehold allowed between possession and inheritance, 221. origin of, 209. possession by co-tenant of wife sufficient for, 214, 215. prolongation of wife's estate, 229. reauisites for, 210. rights of tenant by. In general, see Life Estate, seisin for. at any time during coverture, 213, 218. in fact usually required for, 214. in law when sufficient for, 214, 215. sole, effect of, 217. tenant by, entitled to emblements. 44. See Crops ; Emblements. waste by, 390-391. See Waste, wife's estate heritable by issue as heirs of wife, 222. CURTILAGE, meaning of, 16. CUSTOM, of away-going crops, 45. 862 INDEX. [The figures refer to sectloiu.] DAM, obstructing flow of stream,. 55. DAMAGES, see Compensation, for breacli of contract for sale of land, 914. for breach of covenant of title, 358, 900, 914. for breach of covenant real, or warranty, 897, 898. for eviction of tenant, 358. for violation of easement, 112-114, 116-119, 852, 853. for waste, 392. for withholding dower, 313. DATE OP DEED, acknowledgment as evidence of, 916. See Acknowledgment, false, 916. fixed by date of delivery, 916, 922. See Delivery. Impossible, 916. DEAF AND DUMB PERSON, will of, 1005. DEATH, civil, 186, 228, 863. See Civil Death. of husband essential to dower, 255. of licensor revokes license when, 126, 127. of principal revokes power of attorney when, 888. presumption of, arising from absence, 255. DEBTS, see Creditor ; Lien. DECEDENT, debts of, chargeable on land of, 154. See Descent ; Heirs. DECLARATIONS AS EVIDENCE, see Evidence ; Parol, of intent to deliver deed, 923. of intent to republish will, 1028. of intent to revoke will, 1021, 1024. See Will of Land. DEDICATION, abandonment of property arising by, 1070. acceptance of, by public authorities, necessary to complete, 1070. binds authorities to use land as designated, 1070. depends on intention. 1069. easements created by, IOCS. implied, 1070. Interests created by, 10G8. nature of, 1068. no special form or ceremony for, 1069. not within statute of frauds, 1069. See Statute of Frauds. offer of, revocable, 1070. of land by husband's sole act bars dower, 269. presumption of, 1070, INDEX. 863 [The Sgurea refer to sections.] DBOTCATION— Continued, public authorities not bound by until acceptance of, 1070. reversion to dedicator, 1070. subject to conditions or restrictions, 1068. DE DOXrS CONDITIONALIBUS, STATUTE OF, 165, 166. see Fee Tall. DEED, acceptance of, 887, 962. acknowledgment of, for registry, see Acknowledgment. alteration in, 957-959. appurtenances pass with land under a, 936. assignment of dower requires no, 307. See Assignment of Dower ; Dower. assignment requires, when, 992. See Assignment. attainder of treason or felony affects, how, 867, 880. attesting witnesses to, 926. See Attesting Witness to Deed. authentication of, for registry by witnesses, 926. See Registry. bargain and sale requires, when, 998. See Bargain and Sale. book, registry In, see Recordation ; Registry. by agent under power of attorney, 888. See Agent; Power of Attorney. by alien, 868. by corporation, 869. See Corporation. by drunken person, 861. by infant, 859. by Insane person, 858. by married woman, 282-287, 863-866, 892. See Married Woman. cancellation of, 961. capacity of parties to, 858-881, 889. See Capacity of Grantee iu Deed ; Capacity of Grantor In Deed, cemetery lot may pass without, 121. conclusion of, 916. condition clause in, 896. See Condition, confirmation requires, 990. See Confirmation, consideration for, 937-939. See Consideration. contingent remainder passes by, 638. See Contingent Remainder ; Re- mainder, covenants, personal, 900. covenant to stand seised requires, 998. See Covenant to Stand Seised, date of. 916, 922. dedication requires no, 10C9. See Dedication, delivery of, 922-925. See Delivery. conditional, 923. declarations as evidence of, 923. .depends upon intention, 923. fixes date of deed, 922. In escrow, 1144. in grantee's absence, 923. mode of making, 923. no, needed for deed by corporation, 922. proof of, 923, 924. signatures of attesting witnesses as evidence of, 924. subsequent assent of grantee relates back to date of, 923. to grantee's agent, 923. 864 INDEX. [The figures refer to sections.] DEED— Continued, descriptions in, see Description. ambiguous, construed against grantor, 928. "falsa demonstratio," etc., 928. modes of describing land in, 929-935. by government survey, 930. by reference to plat or map, 931. by monuments, courses, and distances, 932. by reference to prior conveyance, 934. by reference to quantity of land, 933. 'by reference to streets and numbers, 933. vague, avoid, 928. disagreement to, of persons whose assent is necessary, 963. infant, 963. lunatic, 963. married woman, 963. person under duress, 963. disclaimer of 'title by devisee, when by, 1011. by grantee under, 962. See Disclaimer, duress avoids a, 862, See Duress, easement created by, 100. See Easement, erasure in, 957-959. estoppel from covenants in, passes after-acquired title, 1066. estoppel of tenant to deny landlord's title independent of, 357. See- Es- toppel, exchange requires, when, 969. See Exchange, fee tail alienable by, 177, 178. forms of, 890. fraud in consideration for, 941-952. See Fraud ; Fraudulent Conveyance, fraud in execution of, 942. general natui'e of, 885. grantee in, described, 892. grantor in, described, 892. See Description, grant requires, 968. same under local statutes, 1001. habendum clause in, 893. See Habendum ; Premises, indented. 880, 887. form of, 890. joint tenants convey to each other by release, 728. lease requires when, 320, 882, 884, 967. See Statute of Frauds, license created without, 124. See License, livery of seisin in, 134. mistake in execution of, 917. See Mistake, mortgage, deed absolute on face intended as, fraudulent as to creditors, 950. mortgage implied from deposit of title, .584. See Mortgage, parol evidence to show a, absolute on its face to be a mortgage, 53'j. See Evidence; Parol, partition between coparceners requires, when, 780. partition between joint tenants requires, 740, 761, 970. partition under decree of court requires no, 970. See Partition, poll, 886, 887. form of, 890. INDEX. 865 [The figures refer to sections.] DEEI>— Continued, power exercised by, containing general expressions, wben, 1050. power exercised by, not a sufficient exercise of a power by will, 1049, 1054. power of sale carries power to make, 1037. power to be exercised by, can be exercised by will, wben, 1049, 1054. See Power, premises in, 1109, 1110. See Habendum ; Premises, property transferable by, S57. quitclaim, 978. reading of, necessary, 917. record ns notice of covenants contained in instrument, 1078. of trust appearing on face of instrument, 1078. reddendum clause in, 895. registry of, 1074^1077. See Registry. as to subsequent purchaser from conflicting claimant, 1076. vmauthorized recordation, 1079. release of easement must be by, 104. release of trust, trustee's wife need not unite in, 244. release requires, when, 569, 976, 978. See Release, seal attached to, broken off or def aced,^ 960. seal necessary to, 918, 919. See Seal. seisin in, 131. signature to, essential, 919. statute of frauds requires, when, 335, 347, 883, 884. See Statute of Frauds, substituted for livery of seisin under statutes, 884. surrender requires, when, 983, 984. tacking of possessions by one holding under, from adverse occupant, 829. See Tacking, tenendum clause in, 894. to alien, 873. to corporation, 874-879. See Corporation, to dead grantee, 872. to infant, 870. to insane person, 870. to married woman, 870. See Married Woman, to one attainted of treason or felony, 880. use assignable by, 398. when required for conveyance, 882-884. will converted from, 1014. words of limitation in a. 140-140. See Words of Limitation, written on paper or parchment, 891. DEED OF TRUST TO SECURE DEBT, see Mortgage; Trust; Trustee, analogous to mortgage, 532. assumption of, by purchaser. excludes it from covenant against incumbrances, 909. makes purchaser principal debtor, 570. I'evives dower of grantor's widow, when, 302. covenant against incumbrances Includes, 909. creditor secured by, a purchaser, 1076. See Creditor, curtesy in surplus after satisfyiuj,', 223. distinguished from mortgage. r)4.j. dower in land subject to, 24."), 301, 302. MiNOE & W.Real Pkop. — 55 866 INDEX. CThe figures refer to sections.] DEED OF TRUST TO, SECURE DEBT— Continued, dower in surplus after satisfying, 262-263. dowress' duty to pay, 203, 314, 574. dowress liable to pay off, 314. intervention of equity in case of, 452. joinder of wife in husband's, 285. life tenant's duty to pay interest and principal of, 203, 314, 574. priority of, 575-582, 1076. See Priority. registry of, 1074. sale by trustee under, 452. DEFEASANCE, a derivative or secondary conveyance, 964, 971. distlnguislied from a condition, 995. disused in modern times, 995. mortgages formerly created by, 995. nature of, 466, 995. DELIVERY, conditional, or escrow, 925. necessary to a deed, 885. not necessary to deed in exercise of a power, when, 1049. of deed, 922-925. See Deed. of lease, 325. DEODANDS, franchise of, cannot arise by prescription, 844. DEPOSIT OP TITLE DEEDS, equitable mortgage by, 584. DERELICTION, title to land by, 811, 813, 814. DESCENDANTS, AS "WORD OF LIMITATION, 143. see Words of Limitation. DESCENDIBLE FREEHOLD, 159. DESCENT, see Coparcener; Heirs, alienage affects, how, 785. apportionment of rent or common affected by, of servient land upon owner of former, 70, 84. attainder of treason, etc., affects, how, 785. canons of, at common law, 797-804. collateral heirs take by, at common law, 802-804. if not of half blood, 785, 803. male stock preferred to female, 804. collateral relationship, 791-793. canon-law rule to measure degrees of, 791. civil-law rule, 792. common-law rule, 793. covenant binds heirs to extent of assets descended, 898. degrees of relationship, 790-793. heirs apparent and presumptive, 796. heirs' liability for ancestor's debts, 787. heirs taking as special occupants do not take by, 188. heirs taking by, see Coparcener; Heirs. INDEX. 867 [The figures refer to sections.] DESCENT— Cbntinued, hotchpot applied to, 782, 783. See Hotchpot. inheritance cast upon heir, 794. kindred, lineal and collateral, 78^-793. lineal ancestor as heir by, 7t>8. lineal descendants take by, 798-801. lineal kindred, 790. male heirs preferred to female at common law, 799. possessio fratris, at common law, 795. primary canons of, 797-802. primogeniture at common law, 800. secondary canons of, 797, 803, 804. subject-matter at common law, 794. title by, arises by act of law, 784, 806. distinguished from title by purchase, 621, 784, 786, 787, 806. In United States, 805. nature of, 788. tolls entry, 135, 819. doctrine abolished In some states, 819. DESCRIPTION, ambiguity of, construed against grantor, 928. appointment under power by words of general, 1050. appurtenances pass under, of land, 936. "falsa demonstratio non nocet," etc., 928. modes of, of land in deed, 929-935. by government survey, 930. by metes and bounds, 932. by monuments, courses, and distances, 932. by number of acres or quantity, 935. by reference to plat or map, 931. by reference to prior conveyance, 934. by reference to streets and numbers, 933, of grantee In deed, 712, 871, 892. of grantor In deed, 892. of lake or pond, conveyed by deed, 17. oral compromise of boundary, in case of doubtful, 835. trust void for vagueness of, 463, 464. vague and indefinite, avoids deed, 928. DESERTION, effect of wife's, upon dower, 280. DEVISE, see Will of Land, lapse of, 1030, 1031. See Lapsed Devise, of dominant and servient tracts converts quasi easement Into easement, 97, 100. real fixtures pass under, 34. use created by, 401. DEVISEE, see Win of Land, capacity to be a, 1009, 1010. catching bargain with, 946. contribution of, with widow's dower to pay Incumbrance, 301. 868 INDEX. [The figures refer to sections.] DEVISEE— Continued, damages against, for withholding dower, 313. disclaimer of title by, 1011. distinguished from legatee, 1002. dower assigned by, 306. dower in land of, before land sold is subjected, 309. dower of widow of, as against testator's widow, 250, 251. exoneration of dower out of lands of, 301. release by lessor's, 976. valuation of land of, for dower, 303. DISABILITIES, allowance for, in case of adverse possession, 821, 822. in case of prescription, 846. of infant, 821, 859. of insane person, 821, 858. of married woman, 282, 821, 863-866. See Married Woman, of person attainted, 867, 880. DISCLAIMER, of tenure of landlord by tenant, 198, 467. of title. by devisee, 1011. by grantee in deed, 962. of trust, by trustee, 460. DISJUNCTIVE CONDITION, 485, 503. see Condition. DISSEISIN, see Adverse Possession; Statute of Limitation, curtesy, where wife is guilty of, 219. dower assigned by one guilty of, 306. dower how aflfected by husband's, during coverture, 299. dower in estate of one guilty of, 242. effect of, in general, 135. emblements do not pass to one guilty of, 42. nature of, 135. of tenant by curtesy initiate, 227. record of deed of disseisor as notice to grantee of disseisee, 1076. release by disseisee to disseisor, 974. reserving return, not good as a rent. 78. release by disseisee to disseisor's life tenant, 974. warranty commencing by, 897. See Warranty. DISTANCES AND COURSES, see Description, intent governs as between, 932. land described by reference to monuments and, 932. meaning of "course," 932. measure of "distance," 932, 933. monuments preferred to, 932. DISTRESS, see Rent, for rent charge, 80, 81. for rent granted, when, 80, 81. INDEX. 869 [The figures refer' to sections.] DISTRESS— Contiuued,, for rent of furnished house, 76. for rent of incorporeal hereditament, 76. for rent of remainder or reversion, 76. for rent seek, 80, 81. for rent service, 80. DIVISION FENCE, 115, 117. see Fence. DIVORCE, after, wife may convey as feme sole, 863. curtesy barred by, when, 212. dower barred by, when, 212, 240, 279. tenancy by entireties tenrinated by, 747. DOCKETING OF JUDGMENTS, see Recordation ; Registry. DOMESTIC FIXTURES, 32. see Fixture. DOMINAJSfT TRACT, see Common,; Easement; Profit 9, Prendre. DOWER, action to recover, 313. alienage of husband or wife prevents, when, 270. alienee's widow's, as against grantor's widow's, 250, 251. all of husband's lands given as, by custom of free bench, 6. antenuptial agreement to relinquish as bar to, 294. antenuptial conveyance by husband as preventing, 271. antenuptial conveyance in fraud of, 947. antenuptial debts of husband when prior to, 301, 314. arises by act of law, 784. assignable only out of dowable lands, 309. assignment of, 303-314. See Assignment of Dower. acceptance of, essential, 306. after, widow's rights and duties, 314. before, a mere right of action, but no right of entry, 298. before, conveyance of, 299. before, release of, 299. before, statute of limitations does not run against widow, 299. before, subject to debts, 29f). before, widow's quarantine, 300. before, widow's rights and duties, 299, 300. by metes and bounds, 310. by parol, 307. by whom to be made, 306. compulsory, 311-313. conditional, 308. gross sum in Men of, 310, how set apart upon, 310. in land conveyed in successive parcels, 309. instrument of, 307. in undivided shares, 246, 310. judgment for, equivalent to assignment of, 251. 870 INDEX. [The figures refer to sections.] DOWE'E^Oontinued, relates back to husband's death, 250, 251, 314. rent granted in lieu of, 310. to widow or her assignee, 305. valuation of land for, as against alienee, 304. as against heir or devisee, 303. warranty accompanies, 307. barrable by sundry devices, 272-276. barred, by acceptance of collateral satisfaction, 295, 309. by acceptance of estate in dowable lands inconsistent with, 295. by adultery and elopement of wife, 280. by agreement of wife to relinquish, 294. by condemnation proceedings, 269, 278. by covenants of wife, when, 295. by dedication of land to public use, 269. by divorce, 279. by elopement and adultery of wife, 280. by estoppel, 295. by eviction under title paramount, 278. by fraud of wife, 295. by joinder in husband's deed, 281-287. See Joinder. by jointure, 288-293. See Jointure. by power of appointment exercised, 275, 1045. by recovery by title paramount, 278. bill in equity to recover, 311, 313. commuted value of, 265, 296. consummate upon husband's death, 297, 298. contingent right of, 269. when wife's statutory separate estate, 866. contract to convey, 287. specific performance of, 287. conveyance in fraud of, 271. conveyance of insane wife's. 286. conveyance of wife's, 286, 299. covenant against incumbrances covers, 909. covenant of, seisin covers, when, 269, 906. damages in suit for, 313. death of husband essential to, 355. definition of, 237. design of, 238.' devisee's widow's, as against testator's widow's, 250, 251. distinguished from curtesy, 235, 237. distress for rent granted in lieu of, 81. "dos de dote peti non debet," 250, 251. applied to curtesy, 220. "due process of law," applicable to contingent, 269. duties of tenant in, in general, 299, 300, 314. See Life Estate, election of widow, to take dower or jointure, 289, 290. See Jointure. to take in rent or in land, 264. to take in tracts exchanged, 267. emblements for tenant in, 44. entry by tenant In, for breach of condition, 314. freehold Interposed between seisin and inheritance, 252, 253, 276. INDEX; 871 [The figures refer to sections.] DO\rER— Continued, grantee's widow's, as against grantor's widow's, 250, 251. heir's widow's, as against ancestor's widow's, 250, 251. in annuities, 264. inclioate riglit of, 269. in eondiitioual limitation, 233, 256, 68S. in constructive trust, 244. in coparcenary estates, 775. in corodies, 264. in crops, 268. in equitable conversion, 258. in equitable estates, 257-263, 273, 274. in equity of redemption, 260-263, 537. in estate void as to creditors, 242. in exchanged lands, 267. in executory limitation, 233, 256, 688. in fee qualified, 231, 256. in fee simple, 153. after death of husband without heirs, 230, 256. In fee tail, 179, 230, 256. in fee upon condition subsequent, 232, 256. in fishery, 264. in franchise, 264, 310. in improvements, 303, 304. in incorporeal property, 264, 310. in inheritance of husband, 248, 249. in joint estates, 246, 273. in land condemned for public use, 269. In land contracted to be sold, by husband, 244. to husband, 259. in land conveyed in successive parcels, 309. in land dedicated to public use, 269, 277. in land recovered by judgment against husband, 242. in land sold under decree of partition, 246. in life estate, 249. in mines, 265, 310. in mortgaged land, 260-263. in partnership lands, 19, 247. in quarry, 265, 310. in remainder, 249, 688. in rents, 264, 314. In reversion, 249-251, 314. in rights of entry or action, 243. in surplus after payment of lien, 262, 263, 314. in uses, 398. in wild land, -266. issue not essential to, 254. issue taking as purchasers, not as heirs, 254. joinder of wife to bar, 281-287. See Joinder. releases, but passes nothing, 269. jointure as bar to, 288-293. See Jointure, judgment for, equivalent to assignment of, 251. 872 INDEX. [The figures refer to seotlona.J DOWER— Continued, Legislature's right to abolish, during coverture, 269. marriage essential to, 211, 212, 240. measure of damages in suit for, 313. mortgagee's wife not entitled to, 244. not a vested estate during coverture, 269. origin of, 238. paramount to mortgage, 260. postnuptial debts of husband vi^hen prior to, 302, 314. power of appointment used to prevent, 275, 1045. priority of, over husband's debts, 245, 301, 302, 314. over other liens, 245. See Priority. vendee's widow's, over vendor, as to unpaid purchase money, 259. prolongation of husband's estate, 229, 237, 256. purchaser's widow's as against grantor's widow's, 250, 251. quarantine, 300. recovery of, by action or suit, 311, 312. re-entry by tenant in, for breach of condition, 314. release of, by wife's joinder In deed, 281-287. See Joinder. only operates in favor of grantee and his privies, 251, 269. operates to extinguish, but passes nothing, 251, 269, 977. rent in lieu of, 295. requisites of, 239. seisin of husband for, 241, 242, 244, 245, 252. beneficial, 244. in fact, 241. In law, 241. of inheritance, 252, 253, 276. transitory, 245. unlawful, 242. species of, at common law, 236. subordinate to mortgage, 261. surrender of, before assignment of, 980. tacking of possession by tenant in, to husband's adverse possession, 828. trustee's wife not entitled to, 244. valuation of, 265, 296. valuation of land for, 303, 304. waste by tenant In, 390-391. DRAINAGE, easement of, created from quasi easement, 97, 100. extinguished, 106. 'See Basement, of surface water, 92, 119. DRIP, EASEMENT OP, 120. see Easement. DRUNKENNESS, effect of, upon conveyance, 861. upon will, 1005. DtTB PROCESS OF LAW, contingent dower abolished by, 269. DUMPOR'S CASE, RULE IN, 497. INDEX. 873 [The figures refer to sections.] DURESS, deed made under, voidable, 862. disagreement of persons under, to deed, 963. married woman under, of her husband, 282. of Imprisonment, 862. of threats, 862. to child, 862. to stranger, 862. to wife, 862. will void for, 1008. DWELLING HOUSE, see Building, meaning of, 16. DYING WITHOUT ISSUE, limitation upon a, 171, 173. See Limitation. EASEMENT, abandonment of, extinguishes, 105. acquired, by dedication, 1068. by estoppel, 102. See Estoppel. by express exception, 94. by express grant, 93. by express reservation, 94. by Implied grant, 95. by implied reservation, 98-100. by natural right, 92. by necessity, 96, 99, 103. by prescription, 101, 106, 843, 844. See Prescription, adverse act of servient owner extinguishes, 108. air as an, 118. appurtenant to land, 86, 87. once, always, 87. burial rights In cemetery as, 121. by necessity, 96, 99, 103. cessation of purposes of, extinguishes, 103. classes of, 110-111. covenant against incumbrances Includes, 909. dedication creates, when, 1068. deed necessary for, 102. distinguished from common, 66. from license, 90. from profit 8, prendre, 66, 89. division fence as an, 115, 117. drainage as an, 97, 100, 106. drainage of surface water as an, 92, 119. See Surface Water. drip as an, 120. equitable, created by contract to grant, 93. estoppel creates, 102. exception creates, 94. extent of enjoyment of, measured by needs of land, 87, 96, 106. or by terms of grant, 93. 874 INDEX. [The figures refer to sections.] EASEMENT— Continued, extinguishment of, by abandonment, 105. by adverse acts of servient owner, 108. by cessation of purposes of, 103. by change of condition of dominant tract, 106. by release, 104. by transfer of servient tract to purchaser without notice, 109. by union of dominant and servient tracts in one person, 107. grant creates, 93, 95. in gross, 86. license to obstruct, 122, 127. , regarded in equity as an, when, 126. lies in grant, not in livery, 93. light as an, 118. natural right to, 92. nature of, 85. necessity may create, 96, 99, 103. negative, 85. oral grant of, usually only a license, 93. party wall as an, 115, 116. passes with land, 936. pew as an, 121. pollution of air or water as an, 96. positive, 85. prescription creates, 101, 106, 843, 844. prospect as an, 118. quasi, converted into, 97, 100. release of, extinguishes, 104. reservation creates, 04, 98-100, 895. support of land and buildings as an, 113-114. suspension of, 107. transfer of servient tract to purchaser without notice extinguishes, 109. union of dominant and servient tract in one person extinguishes or sus- pends, 107. way as an. 96, 99, 103, 110-112. EDUCATION, trust for, valid, 464. EJECTMENT, ACTION OF, see Condition ; Eviction, against coparceners, 770, 771. against joint tenants, 727, 730. against tenant at will, 336, 337, 342. against tenant by sufferance, 344r-346. against tenant for life, 206. against tenant for years, 329, 372. against tenants in common, 756, 758. building on land of another recoverable in, 21. building or part thereof recoverable in, 21. by coparceners, 770, 771. by joint tenants, 727, 730. by mortgagor, for land mortgaged, 537. by mortgagee, for land mortgaged, 560. INDEX. 875 [The figures refer to sections.] EJECTMENT, ACTION OF— Continued, by tenants in common, 756, 758. by trastee, for cestui que trust, 432, 433. damages for detention of dower recoverable in, 313. damages recoverable in, 34-1-346. defended by equitable title, when, 432. dower recoverable In, 311, 312. equitable estoppel as defense to, 432. profits recoverable as damages In, 346. riglit of entry when necessary for, 311. supported by equitable title when, 432. trustee to defend cestui's title in, 433. ELECTION, by beneficiary that equitable conversion shall not occur, 18. by widow, between dower and jointure, 289, 290. See Dower ; Jointure. by widow to take dower in exchanged lands, 267. to take dower In land or rent, 264. ELEGIT, land subjected to debts under writ of, 154. tenant by, has term for years, 817. ELOPEMENT, of wife bars dower, 280. EMBLEMENTS, are fructus industriales, 37, 41. See Fructus Industriales. assignee entitled to, when, 46. away-going crops, 45. crop not planted by tenant, 47. definition of, 42. disseisor not entitled to, 42. license to enter and cultivate, 42. mortgaged land, foreclosed, 48. not prevented by judgment lien, 48. preparation of land for planting, 47. requisites for, 43-48. rent for premises planted, 42. tenant at will, entitled to, when, 42, 46, 339, 342. tenant by the curtesy entitled to, 44. tenant by sufferance not entitled to, 42. tenant during coverture or widowhood, 42, 44, 46. tenant for life entitled to, 42, 44, 192. tenant for life of another entitled to, 42, 44. tenant for years entitled to, when, 42, 44, 45, 331. tenant in dower entitled to, 44, 268. tenant may hold to end of current year of tenancy, when, 44. termination by title paramount, 48. termination of tenant's estate by his own act, 46. termination unexpected, 44, 45. EMINENT DOMAIN, dower barred by exercise of, 269, 278. franchise subject to, 64. 876 INDEX. [The figures refer to sections.] ENTIRETIES, joint tenants hold by, 724, 725. tenants by, 744^747. ENTRY, assignment of right of, 476, 477, 993. by one co-tenant inures to all, 727. conveyance by exchange requires, 969. covenant for right of, 372. curtesy In right of, 213, 216. descent tolls, 135, 819. dower, before assignment, not a right of, 298, 299. dower in right of, 243. for breach of condition, 473. See Condition ; Re-entry. right of, distinguished from seisin, 131. upon tenant by sufferance, when necessary, 344. EQUITABLE CONVERSION, arises when, 18, 420. based on maxim that equity considers that done which ought to be done, 18. curtesy in, 223. dower in, 244, 258, 259. in case of contract of sale, 18, 420. of devise, 18, 420. of option to buy land, 420. of partnership land, 19. vendee's assignment of his interest, 420. vendee's interest is land by, 18. vendor's interest is personalty by, 18. EQUITABLE ESTATE, see Contract to Convey; Trust; Trustee, curtesy in, 223, 224. dower In, 257-263, 273, 274. EQUITABLE JOINTURE, bars dower, 290. See Jointure. EQUITABLE MORTGAGE, see Mortgage. EQUITABLE POWER, 1041. see Power. EQUITABLE SEPARATE ESTATE, see Separate Estate, condition restraining alienation annexed to, 519. conveyance of, by wife, 865, 866. curtesy in, 224. curtesy initiate In, 227. debts chargeable on, 865. EQUITABLE WASTE, 387-389, 393, 394. see Waste. EQUITY, compensation in, for mistake, 953. contract to convey creates title in, 18, 420. See Contract to Convey Land ; Specific Performance. INDEX. 877 , [The figures refer to sections.] EQUITY— Continued, damages for dower in, 313. dower recovered in, 311, 312. easement arising in, 93. escheat of equitable title in, 785. foreclosure proceedings in, 561, 562. forfeitures relieved against in, 528-531. jurisdiction in, though land lie outside state, when, 953. legal title, prevails over an equal, 575, 579, 582. what constitutes an equal, 575. married woman's separate estate in, 865. See Equitable Separate Estate, oral compromise of boundary good- in, 835. penalties relieved against in, 528-531. power coupled with trust enforced in, 1046. power defectively exercised aided In, 1054. power fraudulently exercised in, 1055. power taking effect in, 1041. See Power, prior in time, prevails over later superior, 575. what constitutes a superior, 575. rescission of deed in, for mistake, 953, 955. sale of infants' lands in, 860. trusts cognizable in, 406. See Trust, waste remediable in, 387-389, 394. EQUITY OF REDEMPTION, see Deed of Trust; Mortgage, a resulting trust, 536. a title in equity, not a mere tnlst. 535, 537. barred by lapse of 20 years, 550, 5.56. cognizable in equity only, 537. conditions of redemption, 551-554. contrasted with legal title, 537. creditors may subject, 537. See Creditor, curtesy in, 223. descendible, 537. dower in, 260-263, 537. exercisable within reasonable time, 550. future advances, 554. inseparably incident to mortgage, 536. mortgage of, 579. nature of, 535. origin of, 535. perpetual, in Welsh mortgage, 550. reasons for, 535. tacking of debt as condition of redemption, 552-554. ERASURE, in deed, 957-959. in executory contract, 958, 959. in will, 1021, 1024. ESCHEAT, alien's land liable to, 785. arises partly by act of law, partly by act of parties, 785. attainder of treason or felony subjects land to, when, 785. 878 INDEX. [The figures refer to sections.] ESCHEAT— Continued, corporation's land liable to, 785, 869, 879. decedent's land liable to, when, 785. equitable title liable to, 785. fee simple liable to, 156, 785. heirs of half blood, 785. incident to feudal tenure, 13. inquest of office, 785. trustee's legal title liable to, 445. ESCROW, delivery of deed in, 925. ESTATE, classification, 137. community of interests, in general, 717. distinguished from title, 128. in expectancy, 589. in possession, 589. in rent granted depends on agreement, 82. in rent reserved measured by tenant's, in land, 82. maximum, in rent service, 83. meaning of, 128. voidable, subject to confirmation, 988. r; STATE AT WILL, see Estate from Tear to Tear ; Landlord and Tenant ; JJease. assignee of, a tenant by sufferance, 337. assignment of, terminates, 337. attempt to surrender, terminates, 980. converted into estate from year to year, 335, 347. emblements incidental to, 339, 342. See Emblements. estovers incidental to, 338. See Estovers, expressly created, at will of both parties, 335. at will of one party only, 336. how created, 335. implied, upon permissive occupation, 335. incidents of, 338. lease determinable at option of one party, 336. nature of, 335. not a freehold, 33.5. notice to quit not necessary, 342. option to terminate exercised, 342. permissive waste an Incident of, 340, 342, 391. reasonable time to remove effects, 342. remainder cannot be limited after, 592. rent, 341, 342. See Rent, sublease of, 337. surrender of, terminates, 980. termination of, 342. waste, 340, 342, 391. widow's quarantine an, 300. ESTATE BY ENTIRETIES, 744r-747. see Entireties. INDEX. 879 [The figures refer to sections.] ESTATE BY SUFFERANCE, see Estate from Year to Year; Landlord and Tenant, acceptance of rent converts, into estate from year to year, 346. assignment of, terminates, 344. conversion of, into estate from year to year, 343, 347. demand of possession necessary to action against tenant of, 344. entry upon, by landlord, 344. estate at will converted into, upon assignment or sublease, 337. estate for years converted into, by tenant holding over, 343. estate from year to year converted into, 347. forcible expulsion from, exposes landlord to action, 345. nature of, 343. not properly an "estate," 343. profits of, recoverable as damages in ejectment, 346. rent as incident to, 346. tenant of, not a trespasser, 343, 344. not to be forcibly expelled, 345. ESTATE FOR LIFE, see Freehold ; Life Estate. ESTATE FOR YEARS, see Conveyance ; Landlord and Tenant ; Lease, alienation of, 329. assignment of, 329. chattel interest, 315. commencement of, 325. commencing in futuro, 326, 327. condition implied in, 329, 467. condition restraining alienation annexed to, 329, 525. contingent remainder of freehold preceded by,' good as executory limita- tion, 592, 602. contract for lease of, by parol, 321, 882. distinguished from lease of, 327. in writing, 321, 327, 883, 884; covenant of renewal in lease of, 317. created, by contract to lease, 321, 327. by estoppel, 322. by lease, 317, 320, 327, 882-884. date of lease creating, 325. deed necessary for, when, 320, 321, 882-884. definition of, 316. delivery of lease creating, 325. descends to personal representative, 315. distinguished from "lodgings," 323, 324. emblements incident to, when, 331. See Emblements, entry, constructive under statute of uses, 320. necessary to consummate, 318.' equitable title to, under contract to lease, 321. estate from year to year an, 347. estate under writ of elegit an, 317. estoppel creating, 322. estovers incident to, 330. See Estovera 880 INDEX. [The figures refer to sections.] ESTATE FOR YEARS— Continued, exclusive possession of tenant of, 334. executory limitation In, 315, 326, 327. fee tail in, 315. fixed duration necessary to, 317. future estates in, 315, 326, 327. in after-acquired title, 322. incidents of, 328. indenture not necessary to creation of, by estoppel, 322, In incorporeal property, 323. in part of house, 323. in rents, 82. interesse termini, 318. lease creating, 317, 320, 321, 327, 882-884. life estate in, 315. "lodger" distinguished from tenant of, 323, 324. merger of, 333. See Merger. modes of creating, 319. nature of, 315, 316. origin of, 315. parol lease creating, 320, 321, 882-SS4. part performance of contract to lease, 321. remainder after, 592. remainder in, 315. repairs, 332. statute of frauds applied to, 320, 321, 882-884. sublease of, 329. "term" explained, 318. tortious alienation of, 329. trespass by landlord, 334. trespass by tenant of, 334. waste, 332, 391, 393, 395. See W writing to create, 321, 327, 882-884. ESTATE FROM YEAR TO XEAK, see Estate at Will; Estate by Sufferance; Landlord and Tenant; Lease, acceptance of rent creates, 347. arises, from estate at will, 335, 337, 342, 347. from estate by sufferance, :>43, 346, 347. classified as an estate for years, 347. converted into estate by sufferance, 347. from month to month, 347, 348. from quarter to quarter, 347, 348. Incidents of, same as estates for years, 347. nature of, 347. notice to quit, 342, 347-349. origin of, 347. repairs, 347. waiver of notice to quit, 349. ESTATE IN FEE SIMPLE, see Fee Simple. INDEX. 881 [The figures refer to sections.] ESTATE OF INHERITANCE, see Pee Qualified; Fee Simple; Fee Tall, coparcener's estate always an, 765. curtesy in any, 2(J8. dower in any, 237, 248, 249. prescriptive title limited to, So4. ESTATE PUR AUTER VIE, see Freehold; Life Estate; Occupancy, descendible, by statute, 189. ESTATE TAIL, see Fee Simple; Fee Tall. ESTOPPEL, after-acquired title transferred by, 915, 10ti2-1066. arising from ancient warranty, 897, 899. arising from representations, land transferred by, 1067. contingent remainder transferred by, 058, 1064^1066. covenant of title transfers land by, 915, 10t>2-1066. dower barred by, 295. easement created by, 102. feoffment transfers land by, 1004. fine transfers land by, 1004. lease transfers land by, 322, 1005. of debtor to set up equity against assignee of mortgage, 566. of married woman, by covenant in deed of statutory separate estate, 866. of tenant to deny landlord's title, 195, :ir>l. of warrantor's heirs, 897, 899. of warrantor to claim land warranted, 897, 899. power extinguished by, 1000. subsequent title acquired by one as trustee, 915. ESTOVERS, common of, 69, 70. incident, to estate at will, 338. to estate for life, 193. to estate for years, 330. to estate from year to year, 330, 347. nature of, in general, 39. ESTREPEMENT, WRIT OP\ 394. EVICTION, see Disseisin; Title Paramount. actual or constructive, 373. apportionment of rent upon tenant's, 84, 366, 373. constructive, 373. curtesy upon wife's, by title paramount, 219. damages for, upon ancient warranty, 897, 898. upon covenants of title, 914. See Covenant. dower upon husband's, by title paramount, 242, 2.j0. exchange implies a condition against, 909. also a warranty, 969. of tenant, by landlord, 358, 366, 373. by third person, 358, 300. warranty against, 897, 898, 914, 909. See Covenant; Warranty. Minor & W.Rkal Prop.— 56 882 INDEX. [The figures refer to sections.] EVIDENCE, see Parol, acknowledgment as, for purpose of registry, »26. for other purposes, t>24. alteration of writing by parol, 536, 9!*8. burden of proving grantor insane, 85S. consideration for deed proved by parol, 998. declarations as, of intent to deliver deed, 923. deed absolute on face, shown to be a mortgage by parol, 536. deed an, of conveyance, not itself one, S85. general expressions in writing as, of intent to exercise a power, 1050. handwriting as, for registry, 926. indirect trust, established by parol, 413, 414, 416, 421, 422, 425. rebutted by parol, 421, 422. lost will as, of revocation, 1024. of acceptance of dedication, 1070. of birth of child alive for curtesy, 226. of death of husband for dower, 255. of dedication, 1069. of fraud, see Fraud. of Infants' repudiation of conveyance, 859. of insanity to avoid a deed or will, 858, 1005, 1006. of mistake of fact, 955. of witnesses, to authenticate writing, 924, 926, 1074, 1079. to prove will, 1017, 1018. power of attorney strictly construed, 888. way by necessity inferred from uselessness of land without way, 96, 99. EXCEPTION, construed as reservation, 94. distinguished from reservation, 94. easement created by, 94. fixture severed by, upon transfer of land, become personalty, 34. fructus naturales severed by, become personalty, 40. "heirs" need not be used in, 144. life estate created by, 185. meaning of, 94. EXCHANGE, a common-law conveyance, 969. condition implied in, against eviction, 969. conveyance pui'porting to be an. good as a grant, 969. deed indented necessary to, when, 969. distinguished from transfer by mutual conveyances, 969. distress for rent granted upon an, 81. dower in lands passing by, 267. entry required for, 969. equality of estates passing by, 969. livery of seisin not necessary for, 969. nature of, 267, 969. of infant's land by statute, 860. power of sale does not authorize an, 1037. requisites for, 969. warranty implied in an, 969. word "exchange" necessary to an, 969. INDEX. 883 [The figures refer to sectlona.] EXECUTION, fructus naturales not subject to, 38. growing crops. If mature, subject to, 41. real fixtures not subject to, a4. EXECUTOR, arrears of rent go to, 364. estate for years passed to, 315. land devised to, with power to sell, 1033. power coupled with a trust given to, exercised by successor or coexecutor, 1047, 1048. power in, is coupled with a trust when, 1046. to sell land at common law, 1039. to sell land for payment of debts, not exercisable if there are no debts, 103S. power in joint, exercisable severally, 1048. resignation, refusal to qualify, death, etc., of one, 1048. to pay off mortgage, 564. to receive payment of mortgage, 563. EXECUTORY UMITATION, abeyance of freehold, 676. adverse possession against one claiming by, 841. alternative, 692, 693. any number of, may succeed each other, 710. classes of, 675-682. conditional limitation, 680, 681. contingent, 679-681. contingent remainder following term for years good as an, 592, 602, 603. created under statutes of uses and wills, 673, 675, 686, 996. cross, 643, 693. curtesy in, 233, 688. definite failure of issue, etc., 70<5. definition of, 673. destruction of, 687. disposition of title to, pending contingency, 713, 714. distinguished from remainder, 683-689. See Remainder, dower in, 233, 256, 688. failure of first estate to take effect, 690. failure or regular termination of ulterior limitation, 691. if one limitation in writing be, all subsequent are also, usually, 709. in chattels, 315, 682, 685. indefinite failure of issue, etc., 705-707. in estate for years, 315. liability of, for debts, 715. limitation In derogation of preceding estate good as an, 650. limitations by way of, see Limitation, must not cease as to part, and vest and revest, 711. no limitation once good as remainder can be, 674. origin. 589. power taking effect as, 1041. See Power, preceding estate dispensed with in case of, 684. remainder void as such good as an, 592, 602, 603, 650, 674. rule against perpetuities applied to, 694-707, 709, 710, 712, 716. See Rule Against Perpetuities. 884 INDEX. [The Si;ures refer to sections.] EXECUTOR.X LIMITATION— Continued, rule in Shelley's Case not applicable to, 689. See Rule In Shelley's Case, shifting, 680, 681. always contingent, 681. preceding estate vested or contingent, 681. springing, 676-679. construed to be vested if possible, 677. contingent, 678. to a class, vested, 678. vested, 677, 678. statutes which give rise to, 673, 675, 686, 996-198, 329, 467. See Condition, for felony, 155, 785. for treason, 155, 785. for waste, 392. of preceding estate for breach of Implied condition defeats contingent remainder when, 636, 637. See Contingent Remainder; Remainder, waiver of, for breach of condition, 498. Bee Waiver. INDEX. 889 IThe figures refer to sections.] FRANCHISE, canal, 63. creation of, by prescription, 843, 844. See Prescription. " definition of, 63. dower In, 264. eminent domain applied to, 64. excluslveness of, 65. ferry, 63. gristmill, 63. Impairment of contract of, 64. misuser of, 64. monopoly not favored, 65. nonuser of, 64. police power applied to, 64. real property only when connected with land, 63. rescission of, 64. FRAUD, see Fraudulent Conveyance. advantage taken of pecuniary difficulties as, 946. agreement in, of a power not specifically enforceable, 1055. agreement to return part of wife's portion as, 947. antenuptial conveyance in, of curtesy or dower, 271, 947. appointment in, of a power relieved against In equity, 1055. badge of, inadequate consideration, 952. by concealment, 943. by misrepresentation, 943. by persons in confidential relations, 945. considerations involving, 941-952. See Fraudulent Conveyance. constructive trust raised by, 428. conveyance voluntary as badge of, 952. See Voluntary Conveyance. deed misread to grantor as, 917, 942. dower barred by wife's, when, 295. dower in land conveyed by husband and wife, which Is void for hus- band's, 284. dower in land obtained by, 244. drunliard's deed voidable for, 861. equity assumes jurisdiction of, though land lies outside state, 953. equity relieves against appointment in, of power, 1055. equity relieves against nonexecution of power due to, 1054. estoppel arising from, gives title to land when, 295, 1067. estoppel of tenant to deny landlord's title, how affected by, 3.j7. evidence of, in general, 944. greater ratio secured to one creditor for assenting to deed of assign- ment as, 947. Inadequacy of consideration as evidence of, 944, 952. in esse contractus, 942. mental wealiness as evidence of, 944, 945. must be clearly shown, 943. never to be presumed, 943. no right deducible from a, 943. partition avoided by, 741. party to, cannot impeach transaction, 948. signing wrong paper as, 942. 890 INDEX. IThe figures refer to sections.] FRAUD— -Continued, suggestio falsi as, 943. suppressio veri as, 943. undue influence as, 944, 945. FRAUDS, STATUTE OF, see Statute of Frauds. FRAUDULENT CONVEYANCE, see Fraud, badge of fraud, inadequate consideration, 952. catchmg bargains with heirs and ottier expectants, 946. constructive trusts created by, 42^. conveyances in fraud of curtesy or dower, 271, 947. dower In, 269, 284. effect of voluntary conveyance, 952. See Voluntary Conveyance. English statutes of, 948. evidence of fraud in general, 943. form of transfer, 950. fraud against creditors and purchasers, 948-952. fraud against third persons generally, 9i7. fraud as between the parties, 942-945, 948. fraud in esse contractus, 942. fraudulent representations and concealments, 943. grantee, participation of in grantor's fraud, 951. grantor, Intent of, 949. inadequacy of price as evidence of fraud, 944. inequitable bargains, 944. intent Of grantor, 949. joinder of wife in husband's, 284. mental weakness as proof of fraud, 945. FREE BENCH, CUSTOM OF, 6. FREEHOLD, abeyance of, 136, 398, 399. act of law creates no estate less than, 315. cannot be carved out of chattel interest, 129. classification of estates as, and less than, 137. contingent remainder of, to be preceded by, 592. curtesy requires possession of, 220, 249. curtesy requires seisin of Inheritance, without intervening estate of, 220, 221, 249, 252, 253. deed necessary for conveyance of, when, 882-884. See Deed; Statute of Frauds, definition of, 129. descendible, distinguished from fee qualified, 159. disseisin of, 135. See Adverse Possession; Disseisin, dower assigned by tenant of, 306. dower released to tenant of, 283. dower requires possession of, 220, 249. dower requires seisin of inheritance, without intervening estate of, 220, 221, 240, 252, 2.j3, 276. in one, inheritance in another. 130. Interpolated, prevents dower of curtesy, when, 221, 252, 253. prevents merger, when, 252, 253, 670. INDEX. 891 [The figures refer to sections.] FREEHOLD— Conttnued, livery of seisin, necessary to create, when, 132, 133, 134. See Livery of Seisin, to particular tenants, in case of remainder of, 592 meaning of, 129, ISO. rent, 73, 82, 83. See Rent. torn in removing fixture, 26. See Fixture; Waste. FRUCTUS INDUSTRIALES, after maturity and before severance, land for some purposes, 41. for otlier purposes personalty, 41. after severance, always personalty, 41. before maturity, part of land, 41. distinguislied from fructus naturales, 37. emblements, 42-48. See Emblements. sale of, within statute of frauds, 41. FRUCTUS NATURALES, distinguished from fructus industriales, 37. nature of, 38. part of the land, 38. pass to the heir, 38. pass with land, when, 38. sale of, within statute of frauds, 40. severance of, 40. FUTURE ADVANCES, mortgage to secure, 554. FUTURE ESTATES, see Executory Limitation; Remainder; Reversion. G GAME, license to remove, implied from license to hunt, 122. GAS, NATURAL, rights In, 61. GAVELKIND TENURE, 6. GIFT, see Voluntary Conveyance. a common-law conveyance, 966. creates a fee tail, 966. GOVERNMENT SURVEY, description of land by, 930. See Description. GRAND SERGE AN TY, tenure by, 6. GRANT, a common-law conveyance, 968. appointee under power, though not within consideratloH, may take by, 1045. deed always required for, 968. deed invalid and an exchange sustained as a, 969. deed invalid as a surrender sustained as a, 984. 892 INDEX. [The figures refer to sectiona.] GEANT— Continued, easements lie in, 93. See Easement. easements of light and air acquired by, 118. feoffment contrasted witti, 9S8. future estates created by, 9BS. land now passes by, 132, 844, 908. livery of seisin contrasted with, 132. See Livery of Seisin. no consideration needed for, 968. of easement, 93, 118, 968. of Incorporeal hereditament, 93, 111, 132. of profit a, prendre, 66. See I'rolit a Jr'rendre. of rent, 72, 73. See Rent. of reversion, 132, 361, 378. of use, 398. of vested remainder, 132, 657. See Remainder; Vested Remainder. prescriptive title supposes lost, 844. applies only to property lying In, 844. See i'rescriptlon. surrender by, without livery, 983. takes place of livery, when that Is Impossible, 968. GRANTEE, see Assignee; Purchaser, capacity of, 870-881, 889. See Capacity of Grantee in Deed. dead at date of deed, 872. description of, see Description; Premises, uncertainty of, avoids deed, 871. GRANTOR, capacity of, 858-869, 889. See Capacity of Grantor In Deed, description of, see Description; Premises. Intent to defraud creditors, 949. GRASS, as part of land, see Fructus Industrlales ; Fructus Naturales. GRAVEYARD, burial rights in, 121. GRISTMILL, a franchise, 63-65. GROUND RENT, 82, 83. see Rent. GROWING CROPS, see Emblements; Fructus Industrlales. GROWING FRUIT, TREES, ETC., see Estovers; Fructus Naturales. GUARDIAN, dower assigned by, 306. sale of Infants' lands by, 860. H HABENDUM CLAUSE IN DEED, function of, to limit grantee's estate, 893. may lessen, enlarge, explain, or qualify estate given In premises, 893. INDEX. 893 [Th9 figures refer to sections.] HABITABLE, landlord's obligation that premises be, 355. HABITUAL DRUNKAKD, deed by, 861. HACLTJCINATION, effect of, on will, 1006. HEIRLOOMS, descendible to heirs, 16. HEIRS, see Child; Descent; Heirs of Body; Issue; Words of Limitation, •action does not lie by, for waste done tiy ancestor, 390. nor for waste done in ancestor's time, 898. alienage of, causes escheat when, 785. ancient warranty binds, when, 897-899. annuity, when limited to, descendible to, 16, 62. apparent and presumptive distinguished, 796. assignment of dower by, 306. attainder of treason or felony corrupts blood of, 155, 156, 785. canons to ascertain, at common law, 797-804. catching bargains with, when fraudulent, 946. collateral, as well as lineal, may inherit, 189, 802-804. collaterals of half blood as, 785, 803. construed as "heirs of body," when, 173. contribution of, with widow's dower, to pay incumbrances, 301. corody, when limited to, descends to, 16, 62. creditor of ancestor to subject land in hands of, 154. curtesy in husbands of, who have assigned dower to ancestor's widow, 220. deed by dead man's, 892. deed to dead grantee and his, void, 872. deed to dead grantee or his, 872. deed to dead man's, 892. devise to testator's, after death of wife, gives wife life estate, 184. devise to testator's, to take as, void, 1010. donees in gift originally, 139. dower assigned by, 306. dower exonerated out of land in hands of, 301. dower in lands in hands of, before assigned out of land sold, 309. dower of widows of, as against ancestor's widow, 220, 250, 251. dower valued in suit against, 303, 313. entry by one of the, inures to all, 837. entry tolled by descent upon disseisor's, 135, 819. equity of redemption descends to mortgagor's, 537. escheat for want of, 13, 156, 785. See Escheat, estate of inheritance, in reservation, 144, 149. in use. 4tK_). estates of inheritance created by use of word, 140-149. See Words of Limitation, fee simple descendible to general, 152. though limited to certain class of, 152. female, postponed to male, when, 799, 804. talie all together, when, 799. 894 INDEX. [The figures refer to sections.] HEIRS— Continued, fruetus industrlales descend to, when, 41. fructus naturales descend to, 38. heirlooms descendible to, 16. indefinite succession of, embraced by word, 141. lineal ancestors take as, when, 7^8. lineal descendants only included originally in word, 139. lineal descendants take as, 798-801. money secured by mortgage does not go to mortgagee's, 563. of blood of first purchaser, 802. of half blood, 785, 803. ^ of infant grantor may repudiate conveyance, 859, 870. of insane grantor may plead grantor's insanity, 858. of living person are unascertained, 602, 604. of mortgagor liable for mortgage debt, when, 564. of person in adverse possession may tack possessions, 828. partnership land converted into personalty as against dead partner's, 19. personalty descendible to, 16. presumptive and apparent distinguished, 796. presumptive divested of Inheritance in favor of nearer, 796. primogeniture amongst, 800. property descending to, a hereditament, 16. purchaser from testator's, takes good title, when, 1032. real fixtures descend to, 31, 34. See Fixture, release by lessor's, 976. remainder to, see Limitation; Remainder; Rule In Shelley's Case, rent reserved to grantor and his, 77, 360, 363. rent reserved to, when it should have been reserved to personal rep- resentative, and vice versa, 363. representation among, 801. resulting trust for testator's, 1014. seisin in law of, 131, 213, 215. special occupancy created by mention of, 188, 808. take per capita, when, 801. take per stirpes, when, 801. taking jointly, coparceners, see Coparcener, use descendible to, 398. valuation of lands of, for dower, 303. words of limitation, 139-142, 149. See Words of Limitation, words qualifying, effect of, 141. HEIRS OF THE BODY, see Child ; Heirs ; Issue ; Words of Limitation, children, equivalent to, when, 143. descendants, eqnivnlent to, 143. fee tail created by use of words, 169. "heirs" construed as, 173. Issue, equivalent to, when, 143. sons, equivalent to, when, 143. words of limitation, 140-142, 149, 169. See Words of Limitation. HEREDITAMENT, corporeal, 16-61. See Building ; Land. incorporeal, 16, 62-121. See Easement; Incorporeal Hereditament. INDEX. 895 [The figures refer to sectloiu.] HIGHWAY, 111, 112. acceptance of dedication of, 1070. as boundary to property, see Description ; Navigable Waters. dedication of, 1068. See Dedication. not within covenant against incumbrances, 909. HOLOGRAPH WILL, 1014, 1016. see Will of Land. HOTCHPOT, advancements thrown into, 783. See Advancement at common law, 782. in the United States by statute, 783. HOUSE, see Building, meaning of, 16. HUNT, LICENSE TO, 122. ICE, rights in, 60. IGNORANCE OF FACT OR LAW, 953-955. see Mlstalie. ILLEGAL CONDITIONS, 504. ILLEGAL CONSIDERATIONS, 940. ILLUSORY APPOINTMENTS, 1036. IMMORAL CONDITIONS, 505. IMMORAL CONSIDERATIONS, 940. IMPLIED CONDITIONS, 195-198, 329, 467. IMPLIED ESTATE TAIL, see Fee Tall. IMPLIED GRANT OF EASEMENT, 96, 97. IMPLIED LIFE ESTATE, 184. IMPLIED RESERVATION OF EASEMENT, 98-100. IMPLIED TRUST, 413, 419-423. see Trust. IMPOSSIBLE CONDITIONS, 485, 499-503. IMPKOVEMENTS, assignee of tenant cannot recover for, 202. belong to owner of land when, 202. mortgagee credited with, 551. tenant cannot recover for, 202. INADEQUACY OF CONSIDERATION, see Consideration ; Fraud. INCHO.^T:" DOWER, 269. see L.. .,er. 896 INDEX. [The figures refer to sections.] INCORPOREAL HEREDITAMENTS, annuities, 62. See Annuity. commons, 66-70. See Common ; Profit 3, Prendre. corodies, 62. See Cbrody. curtesy In, 289. See Curtesy. dower in, 264. See Dower. easements, 85-121. See Easement. estate for years in, 323. franchises, 63-65. See Franchise. lease of, 323. See Estate for Years ; Lease. occupancy of, 809, 810. See Occupancy. profit a, prendre, 66-70. See Common ; Profit a Prendre. rent, 71-84. See Rent. cannot issue out of, 76. reserved in reddendum clause of deed, 895. seisin of, 131. seisin of, in law, when sufficient for curtesy in, 215. title to, created by grant, 93, 132, 968. See Grant. title to, created by prescription, 843, 844. See Prescription. INCUMBRANCES, see Attachment; Deed of Trust; Dower; Easement; Judgment; Mechanic's Lien : Mortgage ; Tacking ; Vendor's Lien. classes, 532. covenant against, 909. broken as soon as made, 913. not equivalent to warranty, 912. defined, 909. existence of, not a breach of covenant of seisin, 906. life tenant to pay principal and interest of, 203. notice of, by grantee, 909. INDENTURE, see Deed Indented. INFANT. conveyance by, 859, 860. See Capacity of Grantor In Deed. conveyance by married woman who is, 286. conveyance to. 870, 963. disagreement of, to deed, 963. dower assigned by, 306. exchange of lands by, 860. heirs of, may repudiate conveyance by, 850. may repudiate conveyance to, 870. lease by, 860. mortgage by, 860. period of adverse possession prolonged in favor of, 821, 822. power of sale conferred on trustee for, 1033. sale of lands of, 859, 800. will of, 1004, 1007. INHERITANCE, see Coparceners ; Descent ; Heirs, classification of estates of, 137. estate of, prescriptive title limited to, 854. See Estate of Inheritance, words of, see Words of Limitation. INDEX. 887 [The figures refer to sections.] INJUNCTION, to restrain waste, 394. to restrain wrongful use of land dedicated to public, 1070. INSANE PERSON, conveyance by. 858. See Capacity of Grantor in Deed. conveyance by married woman who is, 286. conveyance to, 870, 963. disagreement of, to deed, 963. dower assigned by, 306. evidence that testator is, 1006. period of adverse possession prolonged in favor of, 821, 822. power of sale conferred on trustee for, 1033. will of, 1005, 1006. INSURANCE MONEY, life tenant's right to, 202. IXTERESSE TERMINI, 318. see Estate for Years ; Lease. INTEREST, chargeable against trustee, 447. license coupled with an, 123, 124, 126, 127. life tenant's duty to pay, on incumbrance, 203. power coupled with an, 1033, 1047, 1048, 1050, 1060. See Power. power of attorney coupled with an, 888. INTERLINEATION, 957-959. see Alteration. INTERLOCK, adverse possession of, 840. See Adverse Possession. INTOXICATION, of grantor in a deed, 861. INVESTMENT, of property by trustee, 450, 451. IRRIGATION, 53. ISLAND, title to newly formed, 816. ISSUE, as word of limitation to create fee tail, 143, 170, 171. before birth of, husband's estate in wife's land, 227. curtesy initiate after, 227. curtesy requires birth of. alive during coverture, 226. dower does not require birth of, 254. equivalent in will to "heirs of body," 143. for curtesy or dower, must be capable of inheriting as heirs of wife, 222, 254. need not be the only heirs of wife, 226. legitimation of, affects curtesy, 226. will revoked by birth of, when, 1027. word of purchase in deed, 143. MiNOB & W.Real Peop. — 57 898 INDEX. [Th« figures refer to ^^ctions.] JOINDEIR, see Deed ; Dower, of grantors in grunting part of deed, 892. of infant or insane wife, 286. of wife in husband's contract to convey, specific performance of, 287. of wife in tiusband's conveyance, 283-287. of wife in husband's deed of trust or mortgage, 285. effect of, 2G2-203, 302. of wife in husband's void conveyance, 284. of wife releases dower, but passes nothing, 269. JOINT DONEES, exercise of power by, 1048. See Power. JOINT EXECUTORS, acts of, may be several, 453. power in, exercisable severally, 1048. survivorship upon death of one of, 1048. JOINT TENANCY, see Joint Tenants, existence of, as breach of covenant of seisin, 906. modes of creating, 719. nature of, 718. properties of, 720-724. JOINT TENANTS, accountable for profits, 731. action by or against, must be joint, 730. advantages of dissolving jointure, 743. adverse possession not prevented by disabilities of one of, 821. adverse possession of one, against another, 838. cannot transfer or charge estates of co-tenants, 729. compulsory partition between, 742. See Partition. convey to each other by release, or by deed, 728, 975. conveyance of, by metes and bounds. 720. curtesy in land of, 214, 217. deed necessary for voluntary partition between, 740. dower assigned by, 306. dower assigned to widow of one of, 310. dower in land of, 240, 273. easement not extinguished by union of dominant and servient tracts in case of, 107. effect of voluntary partition, 741. entry by, 727. estate of, must be same, 722. must vest at same time, 723. exchange by, 969. incidents of, 725-732. Interest of, must be same, 722. lapse of devise to, on death of one of, In testator's lifetime, 1030. lease by, reserving rent, 726. livery of seisin to, 727. modes of creating relation of, 719. INDEX. »a» [The figures refer to sections.] JOINT TENANTS— Continued, modes of terminating relation of, 733-742. must be created by same act, 721. must claim under same conveyance, 723. must not defeat or injure co-tenant's estate, 729. nature of relation, 718. notice to, 727. owners of surface and of minerals below surface not, 17. partition between, 739-742. See Partition. not compellable at common law, 739. possession of, 724, 727. purchasing outstanding claims against co-tenants, constructive trustees, 427. rent reserved to, 3.59, 363, 726. seised of whole jointly and of nothing separately, 724, 729. surrender to, 727. survivorship between, 217, 246, 273, 732, 1030. trust and confidence of, in each other, 727. unity of estate or interest, 722, 736, 737. unity of possession, 724. 739-742. See Partition, unity of time, 723, 738. unity of title, 721, 734, 735. voluntary partition of estate of, 739-742. See Partition, waste by, 393, 731. JOINT TRUSTEES, acts of. should usually be joint. 4.53. power in, exercisable severally, 1048. survivorship uix)n death of one of, 1048. JOINTURE, see Dower ; Joint Tenants, advantages of over dower, 293. election between dower and, 289, 290, 389. equitable, 290. law determining what is a, 291. loss of, 292. origin of, as bar to dower, 288. requisites for, under English statute, 289. JUDGMENT FOR LAND, against husband, effect of, upon dower, 242. in case of dower, equivalent to assignment of dower, 251. recordation of, 1071. JUDGMENT, LIEN OF, against vendee, priority of, over vendee's assignee, 420. creditor secured by, has no priority over defective first mortgage, 578. not a purchaser, .532. recordation of, 1071. See Recordation ; Registry, tacking of, to incumbrance, 579. tenant of land sold under, entitled to emblements, 48. JUS ACCRESCENDI, see Survivorship. ^00 INDEX. [The figures refer to sections.] JUS DISPONBNDI, see Alienation, in fitst talier avoids subsequent executory limitation, 7081 K KNIGHT SERVICE, TENURE BY, 6, 14. L LAKE, description of, in conveyance, 17. LAND, building, 21. corporeal property only embraced in, 16., curtilage, 16. equitable conversion, 18, 19. See Equitable Conversion. fixtures, 22-36. See Fixture. fructus industriales, 37, 41-48. See Emblements; Fruetus Industriales. f ruetus naturales, 37^0. See Estovers ; Fructus Naturales. gas, 61. house, 16. ice, 60. license not an interest in, 122, 124. llgbt from above surface of, 17. limb of tree overhanging, 17. messuage, 16. minerals and mines, 49. See Minerals; Mine. of corporation, 20. oil, 61. ownership of surface of, and of things below, separable, 17. partnership, 19. See Partnership Land. party wall on another's, 116. prescriptive title to, arises when, 843, 844. single s.tory or apartment, 21. telegraph, etc., wires over, 17. title to, see Title. water and water rights. .50-60. See Water Rights. LAND, ABOVE AND BELOW SURFACE OF, 16, 17. buildings upon, part of, 21. See Building, corporation's, stockholders' interest in, 20. LANDLORD AND TENANT, see Estates; Lease, adverse possession as between, 832, 838. concealed defect in leased building, 355. covenants in lease, .^r)G-.372, 375-378. See Covenant; Lease. cutting down of undergrowth by tenant, 39, 382. emblements, 42^8. See lilmblenients. entry upon tenant by sufferance, 344. estoppel of tenant to deny landlord's title, 357. estovers, 39. See Estovers, eviction of tenant, 358, 366, 373. INDEX. 901 [The figures refer to sections.] LANDLORD AND TENANT— Continued, forcible entry upon tenant by sufferance, 345. fraud as affecting tenant's estoppel to deny title, 357. habitable premises, 355. mines on premises when workable, 265, 384. See Mine. mistake as affecting tenant's estoppel to deny title, 357. nuisance on leased premises, 350. obligations of lessee to strangers, 351-354. obligations of lessor to strangers, 350. occupancy of premises by tenant, after end of lease and before harvest, 42. possession of tenant protected by lessor, 358, 368. rent, 359-366, 369, 373. See Kent. repairs, 356, 370, 379, 386. surrender, as affecting tenant's estoppel to deny lessor's title, 357. use of premises by tenant, 527, 1065. waste, 356, 379-396. See Waste. LAPSED DEVISE, effect of, upon res'duary clause, 1031. in case of devise, in exercise of power, 1049. to joint devisees, 1030. to tenants in common, 1030. nature of, 1030. void, 1030, 1031. LEASE, a common-law conveyance, 967. acceptance of new, implies surrender of old, 985. after-acquired title by estoppel under, 1065. assignment distinguished from, 967, 901. assignment of, see Assignment ; Condition ; Covenant. beginning "from" such a date construed, 325. by .loiut tenants, 726. condition, clause in, 896. See Condition. condition in, destroyed by surrender, 986. confirmation of estate under, 859, 987, 988. contract to, 321, 327. distinguished from present or future, 326, 327. covenant, already broken not destroyed by surrender, 986. for re-entry, 372. for rent, 366, 369. not to assign, 371. not to commit waste, 396. of renewal, 317. of title, 358. 368, 904. running with land, 375-.377. See Covenant. running with reversion, 378. to repair, 370. creates estate at will, for life, or for years, 317, 320, 327, 335, 967. creates estate from year to year, when, see Estate from Tear to Year, date of, 325. deed when necessary to create a, 882-884. See Deed ; Statute of Frauds, delivery of, 325. distinguished from contract to, 326, 327. from "letting of lodgings," 323, 324. 902 INDEX. [The figures refer to section^.] LEASE— Continued, dowress cannot enter for breach of condition in husband's, 314. future, 326, 327. gas, 61, 384. •Invalid under statute of frauds may create estate at will or from year to year, 335, 347. » mining, 61, 384. of apartments, 323, 324. of infants' lands. 859, 860. oil, 61, 384. operating by estoppel, 322, 1065. option of one party to terminate, 336. parol, 320, 321. power of life tenant to make, extinguished by assignment of life estate, 1060. See Power, reddendum clause in, 895. registry of, 1074. renewal of, b.y trustee in his own name, 426. reversion in grantor essential to, 967. surrender of ijossession under, 357, 979-986. See Surrender, tenant from year to year holds under terms of expired, or invalid, 347. writing required for contract to, when, 883, 884. LEASE AND RELEASE, conveyance by, at common law, 1000. under statute of uses, 1000. LEASEHOLD, see Estate for Years ; Landlord and Tenant ; Lease, LETTER, taking effect as a will, 1014. LEX DOMICILII, controls intent to create jointure, when, 291. LEX SITUS, of land, controls conveyance, etc., 856. LICENSE, assignability of, 125. confers a personal trust or confidence, 122. unless coupled with an interest, 123, 124, 126, 127. coupled with an interest. 123, 124, 126, 127. dedication, until accepted, a mere, 1070. distinguished from easement, 00. from sale of interest in land, 90. easement granted by parol construed as a, 93. granted in form of, 93. obstructed by dominant owner's is extinguished, 108. executed and executory, 123. express, 122. implied from a grant of profit a prendre, 66. in favor of grantee of way to enter to repair way, 112. in favor of purchaser of g;rowing timber, 40. in favor of tenant entitled to emblements, 42. where express grant otherwise nugatory, 122. INDEX. 903 [The figures refer to sections.] LICENSE— Continued, Irrevocable, when, 127. may be oral, 124. nature of, 122. uesligence in exercise of, 122. not an interest in land, 90, 124. rebuts prescriptive user, 852, 853. revocation of, 126, 127. tenant's liability for injury to one entering under, 353. to attach fixtures to another*s land, 25. to do acts on another's land, 122. to do acts on one's own land, 122. to mine, distinguished from conveyance of minerals in place, 49. LI EX, see Creditors ; Mortgage ; Priority. classes, 532. covenant against incumbrances embraces, 909. covenant of seisin does not protect against, 906. curtesy in surplus after satisfying, 223. dower in land subject to, 245, 301, 302. dower in surplus after satisfying, 262-263. dowress to contribute to pay off, 314. emblements for tenant of land sold under, 48. See Emblements. equitable, 584^588. judgment, see Judgment Lien. life tenant's duty to pay principal and interest of, 203. mortgage under lien theory, 538. rent granted as a, 78. See Rent. statutory, 532. vendee's, for purchase money paid, 588. vendor's, for unpaid purchase money, 586, 587. See Vendor's Lien. LIFE ESTATE, a freehold, 182. apportionment of rent in case of sublease by tenant of, 207. See Rent. commuted value of, 204. condition restraining alienation annexed to, 525. created by act of law, 183. by act of parties, 182, 184. by exception, 185. by implication in wills, 184. by reservation, 185. by will or conveyance without words of inheritance, when, 140, 143, 149, 169-173, 184. curtesy a, 182. See Curtesy, defense of title by tenant of, 206. dower a, 182. See Dower, emblements, 192. See Emblements, estate tail after possibility of issue extinct a, 179, 182. estovers, 193. See Estovers, fixtures removable by tenant of, when, 200. forfeiture for breach of Implied condition, 195-198. for life of another, 187-189. doctrine of occupancy, 188, 189. See Occupancy. 904 INDEX. [The figures reler to sections.] LIFE ESTATE— Continued, for tenant's own life, 186. greater than estate for another's life, 186, 201. granted to assignee of land subject to mortgage, 574. implied conditions annexed to, 196-198, 329, 467. improvements by tenant of, 202. in chattel, 315. incidents of, 191. incumbrances to be paid by tenant of, 203, 574. in estate for years, 315. in habendum following fee in premises, 893. in incorporeal property, 184. in rents, 82, 83. insurance money goes to tenant of, when, 202. livery of seisin to create, at common law, 182, 184. merger of, 201. See Merger, nature of, 182. no curtesy nor dower in, 220, 249. power conferred on unborn tenant of, void, 1042. power in tenant of, to make long leases, 1040. See Power. power of alienation attached to, 708, 1044. raised by implication to fee tail, 171, 172. repairs by, 202. taxes to be paid by tenant of, 205. waste complained of by tenant of, when, 393, 395. waste renders tenant of, liable, 199, 390-391. See Waste. LIGHT, EASEJIBNT OF, see Easement, arises by estoppel, when, 102. by express grant, 118. not by implied grant or reservation, 97, 118. not by natural right, 118. not by prescription. 853. extinguishment of, 108. LIMITATION, common-law, lor special, 479, 511, 523, 526. See Special Limitation, conditional, see Conditional Limitation; Executory Limitation, words of, see Words of Limitation. LIMITATION BY WAY OF REMAINDER OR EXECUTORY LIMITATION, to A. and B. as tenants in common in fee simple, but if both die with- out issue (or under 30) to Z. in fee, 643. to A. and B. as tenants in common in tail, and if both die without issue to Z. in fee, 643. to A. and B. during their joint lives, remainder to Z. for life, remainder to heirs of A., 622. to A. and B. during their joint lives, remainder to Z. for life, remainder to heirs of A. and B., 623. to A. and B. for life as tenants in common, remainder to heirs of Z. (A. dying in Z.'s lifetime), 636. to A. and B. for their joint lives, remainder to heirs of B. (or to heirs of survivor), 024. to A. and his children, 172. INDEX. 905 [The figures refer to sections.] LIJIITATION BY WAY OF REMAINDBIl OR EXECUTORY LIMITA- TION— Continued, to A. and his tieirs, and if A. should not leave issue living at his death to B. for life, remainder to C. in fee, 709. to A. and his heirs, and if he die without a son living at his death then in fee to first son of B. who reaches 21, and if he has no son then in fee to his first daughter who reaches 21, and if no daughter then to C. in fee, 710. to A. and his heirs as long as Z. has heirs, remainder to B. and his heirs, 595. to A. and his heirs, hut if A. die under 25 (or If B. die leaving no issue at his death, or if A. marry W., etc.), to Z. and his heirs, 680, 681. to A. and his heirs, remainder to B. and his heirs, 595. to A. and the heirs of his body, and if he die leaving no heirs of the body then living, so much as A. shall be possessed of at his death to B., 708. to A., B., and C. for their lives, remainder to survivors or survivor, G40. to A., B., and C. in fee, and if they die without Issue to Z. in fee, 693. to A. for life after death of B., remainder after A.'s death to 0. In fee, 709. to A. for life, and after his death to such of his children as shall be- come 21, 674. to A. for life, and after one year from A.'s death to Z. in fee, 594. to A. for life, and after one year from A.'s death to Z. in fee, if he sur- vives C, 674. to A. for life, and after his death to my children in tail, and in default of my issue to J. H. in fee (testatrix leaving an infant daughter, who soon died), 709. to A. for life, and if A. marry W. then at once to B. in fee, 680. to A. for life, and if A. marry W. then to B. in fee, 680. to A. for life, and If A. survive B. remainder to A.'s heirs, 627. to A. for life, and if he die without issue to B., 171. to A. for life, and if he have a son to such son in fee, and if he have-,' no son to B. in fee, 639. to A. for life, and if Z. die before X. remainder to W., 599. to A. for life, and if Z. marry W. then remainder to B., 650. to A. for life, and if Z. return from abroad remainder at once to W.'s unborn son (or to \V. in fee), 6."i, 636. to A. for life, remainder to A.'s first and other sons in tail, remainder to B. for life, remainder to B.'s first and other sons In tail, 652. to A. for life, remainder to A.'s lieirs, &J'2, 601). to A. for life, remainder to A.'s sons for life, remainder to (unborn) sons- of C, 713. to A- for life, remainder to A.'s surviving children, 600, 604. to A. for life, remainder to A.'s unborn son or child, 604, 636. to A. for life, remainder to B., C, and D. (testator's children), and if anj' of these die before A. his share to go to the survivors, 600. to A. for life, remainder to B. for lite, remainder to heirs of A., 620. to A. for life, remainder to B. for lite, remainder to heirs of A. and B.., 625. to A. for life, remainder to B. if he live to reach 21, and if he fall to reach 21 then to U., 600. to A. for life, remainder to B. If he survive C, 636, 674. to A. for life, remainder to B. in fee (A. being incapable of taking), 638- to A. for life, remainder to B. in fee, but if B. die during A.'s lifetime B.'s estate to go to his children, 600. to A. for life, remainder to B.'s children (or heirs, or brothers, or any- designated class of persons), 606, 636. to A. for life, remainder to B.'s heirs (or heirs of the body, or issue, etc.), 604, 613, 651. ' to A. for life, remainder to C. tor life, 506. to A. for life, remainder to C. for life, remainder to X. in fee (C. dying during life of A. and X.), 638. to A. for life, remainder to first and other sons of A. in tail, remainder to future sons of B. for life (A. dying before testator without issue, and B. having no sons at testator's death, but having some later), 674. to A. for life, remainder to heirs of A. and B., 613. to A. for life, remainder to heirs of A. and the heirs male of the hody of such heirs, 615. to A. for life, remainder to heirs of A.'s body living at his death, or born within 10 months thereafter, 615. to A. for life, remainder to heirs of A. who shall then have reached 21, 615. to A. for life, remainder to heirs of body of A. and his wife, 613. to A. for life, remainder to heirs of grantor, 607. to A. for life, remainder to her (unbegotten) bastard child. 64S. to A. for life, remainder to his eldest son living at A.'s death (A. having no son at time), 604. to A. for life, remainder to his eldest son (unborn), 604. to A. for life, remainder to his issue, and If he have no issue, or if, in case he have issue, such issue die under 21, then over to B.. 692. to A. for life, remainder to his issue male and his heirs forever, and if he die without issue male, remainder to B. in fee, 653. to A. for life, remainder to his unborn child for life, remainder to eldest son (or issue, etc.,) of such unborn child, 171, 646, 647. to A. for life, remainder to next heir male of A., and to the heir male of of the body of such next heir male, 628. to A. for life, remainder to sons of A. and their heirs, 615. INDEX. 90T [The figures refer to sectldns.] LIMITATION BY WAY OF REMAINDER OR EXECUTORY LXMITA- TIDN— Continued, to A. Jor life, remainder to sucli of A.'s ctHldren as become 21 after A.'s deatn, 674. to A. for life, remainder to such of his children as reach 21, 604. to A. for life, remainder to such persons as shall at A.'s death answer the description of A.'s heirs, 615. to A. for life, remainder to testator's surviving children, 600. to A. for life, remainder to the now living heirs of W., 608. to A. for lite, remainder to unborn children of Z., 636. to A. for life, remainder to Z. for life if he should survive W., remainder to A.'s heirs, 626. to A. for life, remainder to Z. in tee, 594. to A. for life, remainder to Z.'s eldest son (unborn) in fee, 594. to A. for life, remainder to Z.'s heirs, and if A. die, living Z., to W. and his heirs, 595. to A. for life, with power to appoint in tee, and in default of appoint- ment to B. in fee, t?o3. to A. for life, with power to sell or use at A.'s discretion and what re- mains undisposed of at A.'s death to B., 70S. to A. for 90 years, remainder to Z. for 1 year, 592. to A. for 100 years if he shall so long live, and after A.'s death to W. In fee, 603. to A. for 10 years, remainder to heirs of B., 674. to A. for 3 years, remainder to B. in fee, 592. to A. for 21 years if he shall so long live, and after his death to Z. in fee, 602, 603. to A. in fee after a total failure of the heirs male of B.'s body, 701. to A. in fee, but if B. marry C. then to B. for life (B. marrying C), 691. to A. in fee, but if he die leaving issue at his death then to such issue,, if he die leaving no issue at his death then to B. in fee, 692. to A. in fee, but if he die under 25 to B. In fee (A. never coming into ex- istence, or dying under 25 and before testator), 690. to A. in fee, but if he die without heirs, etc., living at his death, to B. in fee, 707. to A. in fee, but if he die without heirs, etc., to B. in fee, 707. to A. in fee, but if he leaves no son over 25 to B. in fee, 703. to A. in fee, but if he shall leave no son who shall reach 25 to B. in fee, 703. to A. in fee, but upon failure of A.'s heirs to B. in fee, 702, 705. to A. in fee, but upon failure of A.'s heirs, etc., at his death, to B. in fee,. 706. to A. in fee in trust until B. reaches 2], and if B. should reach 21 or have issue then to B. and the heirs of his body, but if B. die before 21 or without issue remainder to S., 709. to A. in fee, to commence 6 months after my death, 713. to A.'s children (or brothers, or nephews, or any other designated class of persons), 678. to A.'s eldest son (unborn) in fee, but if A. have no son to B. in fee at A.'s death, 692. to A.'s eldest son (unborn) in fee, but if he die under 30 to B. in tee, 6S1. to A.'s eldest son (unborn) for life, remainder to his children, 171. 908 INDEX. [The figures refer to sections.] MMITATION BY WAY OF REMAINDER OR EXECUTORY LIMITA- TrON— Continued, to A. (testator's son) for life, remainder to A.'s first and other sons toy any future wife In tail, provided that if A. should afterwards marry any one akin to his present wife, M., the foregoing limitations to the issue of such future marriage to cease, and the land to pass to testa- tor's nephews, 654. to A. until B. reaches 21, and when B. reaches 21 then to B. and his heirs, 601. to A. until he marries Y., then at once to Z., 597. to A. until Z. returns from abroad, then to W. in fee, 5t>y, 650. to A. upon the marriage of B., 679. to a grandson (unborn) of testator who shall reach 21, 697. to D. for life, and at her death to be equally divided among her chil- dren, should any survive her, 597. to D. for life, and at her death to be equally divided among her chil- dren, should any survive her; if she die without issue, or if her sur- viving child or children should die before becoming of age, then to be divided among testator's heirs at law according to laws of Virginia, "604, 653. to first son of A. who reaches 21, 704. to first son of A. who reaches 25, 704. to H. and W. during their joint lives, remainder to survivor for life, remainder to first and other sons in tail, remainder to daughters in tail, remainder to heirs of H., 700. to L. for life, remainder in fee to children of L. living at L.'s death, 602, 604. to my sisters E. and M. until the death of the husband of my sister S., and in case S. should then be living to my three sisters severally for their lives, remainder severally to their first and other sons in tail, remainder over (S. dying in husband's lifetime), 654. "to my two daughters and their heirs, equally to be divided between them, and if they die without issue I will give all to my nephew," 642. "to my two sons, one part to one and his heirs, and the other part to the other and his heirs; I will that the survivor of them shall be heir to the other, if either die without Issue," 642. to my wife for life, upon this express condition only, that If she marr.v again the property to go forthwith to my eldest son in tail, remainder over (the wife dying without marriage again), 656. to such children of A. (living) as may be living at a certain period (too remote), 69«. to such children of A., after A.'s death, as reach 25 (A. dying before tes- tator), 701. to such of A.'s children as shall reach 21, 679. to such of A.'s sons as shall take holy orders, 704. to such of my grandchildren as shall reach 22, 704. to such of my grandchildren as reach 21, 704. to the child of which my wife is enceinte, and if such child die imder 21 then over (the wife not being pregnant), 690. to the heirs of A. (who is yet living), 676. to the heirs (or heirs of the body, or issue, or unborn child, etc.) of B. (a living person), 679. to the surviving children of A. after death of B., 677. to the unborn son of A., 676. INDEX. 909 [The figures refer to sections.] LIMITATION BY WAY OF REMAINDER OR EXECUTORY LIMITA- TION— Continued, to trustees for 11 years, remainder to first and otlier sous (unborn) of B. in tail, provided they talce my surname; If not or should they die without issue, remainder to first son of 0., remainder over (B. never having a son, and C. having a sou at time of devise), 655. to trustees in trust to cause the income to be accumulated during the lives of all my sons and of all my grandsons living at my death or then en ventre sa mere, then to be divided, etc., 716. to use of A. for life, and after his death to such uses as Z. shall appoint (Z. appointing to heirs of A), 631. to use of feoffor for life, remainders to use of feoffees for 80 years if N. S. and E. S., his wife, so long live, and If E. S. survives N. S. then to her for life, and after her death to B. S. in tail, and in default of issue to E. N., D. S., and P. S., and the heirs of their bodies, remainder to heirs of feoffor, 652. to X. and Y. for life, remainder to the survivor, 597, 602, 6(M. to Z. for 10 years, then to W. for life, and after W.'s death to X. in fee, 590. to Z. for 20 years, then to W. for SO years, 590. LIMITATIONS, STATUTE OF, see Adverse Possession; Statute of Limitations. LINEAL DESCENDANTS, as heirs, see Descendants ; Heirs. LINEAL WARRANTY, 897-899. see Warranty, Ancient. LIQUIDATED DAMAGES NOT A PENALTY, 531. LIS PENDENS, recordation of, 1071. LIVERY OF SEISIN, assignment of freehold requires, 992. confirmation by way of enlargmeut requires no, 989. constructive, under statutes of uses and wills, 132, 884, 996. continual claim, lo4. contrasted with grant, 132, 996. dispensed with under statutes of grants, 968. exchange requires no, 969. freehold transferred by, 132, 965, 968. grant now takes place of, 132, 884, 968. In deed and in law, 134. lease of freehold requires, 132. nature of, 4, 132-134. origin of, 4, 133. partition of freehold between tenants in common requires, 970. release, enlarging estate requires no, 976. passing a right requires no, 974. surrender requires no, 983. to one joint tenant inures to all, 727. to particular tenant in case of freehold remainder, .j02. uses transferred without, 398, 399. lodging contrasted with estate for years, 323, 324. 910 INDEX. [The figures refer to sections,] LOW-WATER MARK, as boundary line, 56. LUNATIC, see Insane Person. M MAINTENANCE, choses in action unassignable at common law for fear of, 565. right of re-entry not reserved to stranger because of danger of, 475. MANIA, effect of, on will, 1006. MANSION HOUSE, meaning of, lis. right of widow to, by virtue of quarantine, 300. MANURE, as part of realty, 31. MAP, dedication by, showing streets, etc., 1069. description of land by reference to, 931. estoppel to prevent vendee's use of streets, etc., appearing on, 102, 1069. recordation of, 931. MARRIAGE, a valuable consideration, 1076. brocage contracts, 508. conditions in restraint of, 507-514. consideration in restraint of, 940. conveyance as reward for securing, 508, 947. in consideration of, 938. curtesy requires a, 211, 212. divorce from, affects curtesy and dower, 212, 240, 279. dower requires a, 240. incident of feudal tenure, 11. legitimation by subsequent, affects curtesy, 226 settlement, as means of preserving entail, 178. as origin of jointure, 288. as origin of rule against perpetuities, 700. will revoked by testator's, when, 1019, 1026. MARRIED WOMAN, as grantee in conveyance, 870. common recovery to convey laud of, 282, 864. conveyance by, at common law, 282, 863, 864. In the United States, 866. conveyance disagreed to by, 963. conveyance of equitable separate estate of, 86r>, 866. conveyance of statutory separate estate of, 866. covenant in, 866. curtesy initiate in lands of, 227. curtesy in lauds of, see Curtesy, dower as separate estate of, 866. dower of, see Uower. INDEX. 911 [The figures refer to sectiona.] MARRIED WOMAN— Continued, equitable separate estate of, 224, 227, 519, 865, 866. See Equitable Sep- arate Estate, estoppel of, 866. fine to convey land of, 2S2, 864. husband's interest, in crops planted by, 47. in land of, before birth of issue, 227. infant, may repudiate conveyance, 859. joinder of, in husband's deed, 269, 281-287. See Joinder. in husband's release, 244. period of adverse possession prolonged in favor of, 821. power of sale conferred upon trustee for, 1033. See Power, release by, of dower operates by extinguishment, 269, 977. statutory separate estate of, 866. See Separate Estate of Married Wo- man, surrender of dower by, before assignment, 980. will of, 1004. See Will of Land. MBASURE OF DAMAGES, for breach of covenant, 358, 914. MECHANIC'S LIEN, recordation of , 1071, MERGER, conditions of, 666-671. covenant prevented from running with reversion by, 378. depends on intention, 333, 670. estate for life subject to, 201. estate for years subject to, 333. estates, not mere rights, must meet In same person, 666. estate tail not subject to, 179. greater estate held upon condition subsequent, 201. nature of, 665. of consort's freehold in possession by inheritance necessary for curtesy or dower, 221, 249, 252, 253. of equitable estate in legal, 431, 671. of estate for years in freehold, 333. of estates held in same right, 668. of estate in possession by reversionary estate, 833, 607. of estates limited by same instruments, 669. of lesser estate in greater, 201, 333, 667. of preceding estate destroys contingent remainder when, 636, 637, 669. presumption of, stronger in case of reversion than of remainder, 333. prevented by interpolation of freehold remainder, 220, 221, 249, 252, 253, 333. relieved against in equitj', 333. surrender may cause a, 333, 636, 637, 981, 980. MESSUAGE, meaning of, 16. MBTTETS AND BOUNDS, DESCRIPTION BY, 932. see Description. MILLDAM, a franchise, 63-65. obstructing flow of stream, 55. 912 INDEX. [The figures refer to sections.] MINE, 49. see Minerals, construction of lease of, 384. definition of "open," 265, 384. dower in, 265. tenant's right to work, 384. MINERALS, common of, 69, 70. See Common. conveyance of, distinguislied from profit a prendre in, or license, 49. distinguished from oil or gas, 49. grantee of, not to injure surface owner, or vice versa, 49. ownership of surface embraces, when, 17, 49. profit a prendre in, 66, 69. See Common; Profit a Prendre. MISREPRESENTATIONS, effect of, upon a conveyance, 943. estoppel by, creates title to land when, 1(JB7. MISTAKE OF FACT, as to title, 954. building placed on another's land by, 21. compensation in equity for, 953. considerations involving, 953-955. effect of upon tenant's estoppel to deny landlord's title, 357. in boundaries gives rise to adverse possession, 835. in case of judicial sales, 955. jurisdiction in equity for, though land outside state, 953. requisites of, 955. rescission for, 953, 955. revocation of will based upon, 1021. MISTAKE OP LAW, 954. MISUSER, of franchise, ground of rescission, 64. MONOMANIA, avoids will, 1006. MONOPOLY, not favored, 65. MONUMENTS, COURSES, AND DISTANCES, description of land by reference to, 932. See Description. "edge" and "center" of, 932. meaning of, 932. measure of distance, 932, 933. MORTGAGE, action for money by mortgagee, 539, 555, 559. action of ejectment, by mortgagee, 560. by mortgagor, 537. adverse possession as between grantor and grantee in, 832, 838. agreement under, to set profits against Interest, 551. application of payments upon, 583. assignment of debts secured by, 565-569. of land subject to, 570-574. assumption of, by purchaser, 302, 539, 570, 571, 900. INDEX. 913 [The figures refer to sections.] MORTGAGE— Continued, building placed by third person upon land subject to, 21. chattels annexed to land subject to, 34. chattels subject to, annexed to lana, 25. common-law theory, .j84-.'joT. conditional sale distinguished from, 540-544. conditions of redemption of, 551-554. contract to convey land as security for debt an equitable, 585. covenant against Incumbrances embraces, 009. creditor secured by, a purchaser, 1070. irops on land subject to, 41. curtesy in land subject to, 223. deed absolute on face, construed a, when, 536. fraudulent as to creditors, 950. defeasance formerly a mode of creating, 995. defect in first, aids second, when, 578. discharge of, 538, 539, 569. distinguished from conditional sale, 540-544. from deed of trust, 545. from pawn or pledge, 537. from vivum vadium, 537. dower, in land subject to, 245, 26tl-203, 301, 302. in surplus after paying, 2(J2-2li3. not allowed to widow of mortgagee, 244. not allowed to widow of trustee, in deed of trust, 244, 584. dowress to contribute to pay off, 314. emlilements in case of land subject to, 48. equal equities, 575, 579, 582. equity of redemption incident to, 53.5-537, 550-554, 556. See Equity of Redemption, equity superior to legal title, if latter acquired with notice, 575, 579, 582. estate of mortgagee after default, 5.")8. of mortgagee before default, 538. 557. of mortgagor after default, 549. of mortgagor before default, 537, 538, 548. fixture made subject to, apart from land, 34. foreclosure of, 5.38. .545, 561, 562. fraudulent as to creditors, 9.10. fructus n.Tturales attached to land subject to, 38. severed from land by, become personalty, 40. Implied from deposit of title deeds, 584. implies a personal obligation on mortgagor's part, 555. joinder of wife in, as bar to dower, 285. later in time, aided by le^al title, prevails, 575, 577-579, 582. later superior, by reason of failure to record first, .581, 582. by reason of misconduct of prior mortgagee, 580. legal title prevails as between e(]ual equities, 575, 579, 582. lien theory, 538. life estate carved out of land subject to, 574. life tenant to pay principal and interest of, when, 203. mortgagee, a creditor of mortgagor, 555. may recover deficit by personal action against mortgagor, 555. to account for rents and profits, 551, 555. Minor & W.Real I'hop. — 58 914 INDEX. [The figures refer to sections.] MOETGAGEJ— Continued, to be credited with improvements, 551. to be credited with taxes paid, 551. to foreclose, 561, 5f>2. nature of, 533-538. negotiability of, 567. negotiable notes, etc., secured by, assigned, 567. nonnegotiable notes, etc., secured by, assigned, 566. not affected by fact that debt is barred, 556. notice of, see Notice; Purchaser, of equitable interests, 585. of infants' land, 859, 860. origin of, 534. payment of debt, discharges, 538. with interest essential to redemption of, 551. personal liability of mortgagor, 539, 655. power of attorney to creditor authorizing sale, 585. power of life tenant to, extinguished by assignment of life estate, 1060. See Power, power of sale does not authorize a, 1037. power of sale reserved to mortgagee, 546, 547. power to appoint in fee authorizes a, 1037. prior in time prevails over equal equity, 575. priority of, 575-582, 1076. See Priority, promise to execute a, 585. proper parties to bill to foreclose, 562. purchase of land subject to, 261, 539. record as notice of execution of power of sale contained in instrument, 1078. redeemed by any one interested, 536, 551. redemption of, 535-537, 550-554, 556. See Equity of Redemption, registry of, 569, 575, 579, 581, 582, 1074. See Registry ; Priority, release of debt secured by, 539, 569. release of, discharges, 569. does not discharge debt, 569.' to be entered on records, 569. sale under power reserved to mortgagee, 546, 547. satisfaction of, 569. presumed after 20 years, 550, 556. simultaneous alienations of land subject to, 573. statute of limitations applicable to, 539, 556. strict foreclosure, 538. successive assignments, of debts secured by, 568. of land subject to, 572. tacking debts to, as condition of redemption, 552, 553, 554. tacking third to first, so as to squeeze out second, 579. title deeds aid later, 577. title deeds deposited imply, 584. to secure future advances, 554. Welsh, 550. who entitled to money on mortgagee's death, 563. who liable for money on mortgagor's death, 564. MORTMAIN, STATUTES 01', 874-879. INDEX. 915 [The figures refer to sections.] MOTION, assignment of dower upon heir's or devisee's, 306. MUNICIPAL CORPORATION, bound to support adjacent land, wnen grading streets, 113. condemnation, see Condemnation, dedication, see Dedication. MUTUAL MISTAKE, »53-»55. see Mistake. N NATURAL G'AS, rights in, 01. NAVIGABLE WATERS, see Public Waters; Water Rights. NECESSITY, easements by, 96, 99. NEGLIGENCE, in executing license, 122. in infringing easement of support immaterial, 113. waste by, 379, 386, 391, 395, 396. See Waste. NEMO EST H.ERES VIVENTiS, 602, 604. NONUSER, of franchise, 64. NOTE, assignment of, secured by mortgage, 566, 567. may take effect as a will, 1014. NOTICE, actual, 435, 1073. arising from . registry, 1072, 1073, 107H-10S0. affects only those subsequently acquiring title from same source, 1076. effect of destruction of record, 1076. effect of mistake of officer, lOSO. from what time, 1080, 1081. of facts outside subsequent purchaser's chain of title, 1078. us affecting advances made under mortgage to secure future advances, 554. constructive, 435, 1073, 1078-1080. estate at will requires no, to terminate, 342, 344, estate from year to year requires, 347-349. from failure to inquire, 1073, 1078. from possession, 1073. from registry, 1073, 1078-1080. See Registry. ^ of fraud, 948, 951. See Fraud; Fraudulent Conveyance, of matters referred to in known writing, 1077. purchaser without, 948, 951, 1076. See Purchaser, quitclaim deed as, of defective title, 978. to one co-tenant inures to all, 727. waiver of, in case of estate from year to year, 349. NUISANCE, landlord's liability for, on leased premises, 350. NULLUM TEMPUS OCCURRIT RKGl, SSJ, 916 INDEX. [The figures refer to sections.] OCCUPANCY, see Adverse Possession; Possession, title by, 188, 189, 807-810. arises in case of estate pur autre vie, 188, 189, 807. general, 188, 189, 808, 809. general, abolished in United States, 189. general, personal representative succeeds, in place of occupant, by stat- ute, 189. in incorporeal property, 809. mention of "heirs" makes special, 808. nature of, 807. special, 188, 808, 809. special, in United States, 810. OIL, property rights in, 61. OLD AGE, effect of, on will, 1005. OPTION, equitable conversion under, 420. See Contract to Convey Land ; Equitable Conversion. ORNAMENTAL FIXTURES, 31!. see Fixture. PARAMOUNT TITLE, see Title Paramount. PARCENER, see Coparcener. PARK, dedication of land for, loe>8-1070. See Dedication; Easement. PAROL, see Evidence, assignment by, 992. bargain and sale by, 998. constructive trusts by, 418, 4i;5. conveyance by, when valid, 320, 413, 421, 425, 8*2, 884. See Conveyance; Statute of Frauds ; Trust, deed absolute ou face shown to be mortgage by, 536. mortgage by, in case of deposit of title deeds, 584. resulting trusts by, 418, 414, 421. surrender by, 984. terms of written will cannot be qualified by, 1014. writing altered by, 536, 998. PAROL AGREEMENTS, STATUTE OF, see Statute of Frauds. PAROL EVIDENCE, see Evidence; Parol. INDEX. 917 [The figures refer to sections.] PARTITION, a common-law conveyance, when, 970. advancements thrown into hotchpot upon, 7S2, 783. See Hotchpot, as between coparceners, 77B, 780, 781, 970. as between joint tenants, 739-741', 970. as between tenants by entireties, 747. as between tenants in common, 763, 970. compulsory, 739, 776, 970. contract for, suffices in equity, 740. deed necessary for, when, 740, 970. distress for rent granted for owelty of, 81. dower in land sold under decree for, 24(J. equal, among appointees, in case of appointment set aside as Illusory, 1036. in case of power coupled with a trust, 1046. fraud in, avoids, 741. Inequality in, does not avoid, 741. voluntary, 739-742, 763, 780, 781, 970. warranty implied in, 781. PARTNERSHIP LAND, curtesy in, 19. dower in, 19, 247. equitable conversion of, 19, 247, 422, 476. as between heir and personal representative of dead partner, 19. as to dower of dead partner's widow, 19, 247. as to firm creditors, 19. duration of conversion, 19. Implied trust in, 422. PART PERFORMANCE, of contract to lease, 321. of oral compromise of boundary line, 835. of oral grant of easement, 93. takes oral contract to convey out of statute of frauds, 321. PARTY WALL, see Support, contribution for building and maintenance of, 116. may be built partly on land of each, with mutual easements of support, 110. may belong to one, with easement in another, 116. may be property of one or both without any easement, 116. nature of adjoining owner's Interest in, 115, 116. use of, 116. PASTURE, common of. 68, 70. PAWN, distinguished from mortgage, 537. PAYMENTS, application of, to mortgage, 583. PEDrS POSITIO, needful for actual seisin, 131. See Adverse Possession ; Disseisin ; Seisin. 918 INDEX. [The figures refer to sections.] PENALTY, relief In equity against, 52S-531. See Condition. PERCOLATING WATER, 59. see Water Rights. PERMISSIVE WASTE, 379, 386, 391, 305, 396. see Waste. PERPETUITIES, RULE AGAINST, see Rule Against Perpetuities. PERSONAL FIXTURE, see Fixture. PERSONAL PROPERTY, see Chattels, may become realty, and vice versa, 22. See Fixture. rent cannot issue out of, 76, 78. See Rent. PERSONAL REPRESENTATIVE, see Executor. PETIT SERGEANTY, tenure by, 6. PETROLEUM OIL, rights in, 61. PEW, easements in, 121. See Easement. PISCARY, common of, 69, 70. See Common ; Profit ft Prendre. PLAT OR MAP, dedication of streets, etc., marked on, 1069. S-ie Dedication. description of land by reference to, 931. See Description, estoppel to prevent vendee's use of streets marked on, 102. See Estoppel, recordation of, 931. PLEDGE OR PAWN OF CHATTELS, 587. POLICE POWER, franchise sub,iect to, 64. POLLUTION, see Easement ; Water Rights, of air, 96, 118. of percolating water, 59, 96. of subterranean streams, 58, 96. of surface streams, 53, 54, 96. of surface water, 96, 119. POND, description of in conveyance, 17. POSSESSIO FRATRIS, doctrine of, 795. POSSESSION, aMverse, see Adverse Possession ; Disseisin, notice of title of one in, 1073. See Notice, of joint tenants, 724, 727, 732. of one co-tenant inures to all, 727. INDEX. 919 [The figures refer to sections.] POSSIBILITY OF REVERTER, always contingent, 660, 672. upon fee conditional, 164, 165, 672. upon fee on condition subsequent, 477, 672. upon fee qualified, 160, 672. POST NUPTIAL SETTLEMENT, as bar to dower, 204. POWER, appendant or appurtenant, 1344. appointee under, not bound by covenant in lease, 376. takes under instrument creating, 1041, 1045. within the consideration, 1041, 1045. appointee under statutory, takes under statute, 1040. appointment under, defined, 1034. due to prejudice, 1055. to estates partly within, and partly beyond, 1053. to persons not within, 1053. to uses, 1041. appointment violative of condition precedent, 1053. arising at common law, 1039. by executory limitation, 1041. by implication, 708, 1044. in equity, 1041. under statutes, 1040, 1041, 1043. assignment of, coupled with an interest, 993. naked or bare, 993. circumstances prescribed by instrument creating must be followed, 1049. collateral, 1060. compulsory execution of, 1046, 1052, 1054. condition precedent to exercise of, 1038, 1053, 1059. contingent Interests under, 1046, 1052. coupled with an interest, 1033, 1047, 1048, 1050, 1060. a trust, 1046, 1052, 1061. covenant appropriate in deed under, 907. creditor may subject land to donee's debts when, 1035. death, etc., of one of several donees of, 1048. defective execution of, aided in equity, 1054. void at law, 1049. definition of, 1034. delegation of, 1047. d6nee and donor of, 1034. donee of, estopped to exercise. IflflO. may appoint, to whom, 1035. may delegate, when, 1047. may release, when, 1061. equitable, 1041. estoppel of donee to exercise, 1060. exclusive, 1035. executory limitation created under, 1041. See Executors' Limitation, exercise of, i by deed, 1049. See Deed. by joint donees, 1048. by will, 1049. See Will of Land. 920 ' INDEX. [Tlie figures refer to sections.] POWER— Continued, compelled in equity, when, 1046, 1052, 1054. coupled with an interest, 1033, 1047, 1048, 1050, 1060. coupled with a trust, 1046, 1047, 1052, 1061. defective, 1049, 1054. dependent on donee's intent, 1050. excessive, 1053. fraudulent, 1055. in accord with terms of, 1045. omitted, 1052. postponed, 1051. extinguishment of, 1056-lOGl. formalities of exercise of, 1049, 1054. general, appointees under, unlimited, 1035. conditions of exercise of, 1038, 1050. defined, 1035. donee's creditors may subject land held under, 1035. interest to be created under, 1037. may be delegated, 1047. rule against perpetuities applied to, 1042. See Rule Against Perpe- tuities, illusory appointment under, 1036. in gross, 1060. intent to exercise, how shown, 1050. joint, to be jointly exercised when, 4.53, 1048. lapse of will in exercise of, 1049. See Lapsed Devise, mode of exercising, 1049, 1054. naked or bare, 994, 1033, 1048, 1050, 1060, 1061. nature of, 1033, 1034. nonexclusive, 1035. of alienation, see Alienation; Assignment. annexed to life estate creates fee, when, 186, 708, 1044. of appointment. arising under statute of uses, etc., 399, 400, 1041. carries power to create lesser freehold or mortgage, 1037. dower defeated by exercise of, 275. joinder of wife not needful to exercise of, 275. release of, 977, 1061. seisin of donee defeated by exercise of, 1045. of attorney, 888. See Agent ; Power of Attorney, of dividing estate, 1037, 1046, 1052, 1058. of executor or administrator, 1033, 1039, 1040, 1046-1048, 1058. of making leases under statute, 1040. of revocation, 399, 400, 1043. of sale. authorizes conveyance, 1037. but not mortgage nor exchange, 1037. conferred upon mortgagee, 546, 547. for division which is otherwise made, 1058. implied in will, 1044. in executor, etc., 1033, 1039, 1046, 1048. in trustee, 1033, 1039, 1046, 1048, 1058. record of instrument as notice of execution of power, 1078. INDEX. 921 [The figures refer to sections.] POWER— Continued, to pay debts, not exercisable if no debts, 1038. to support one who dies, 1058. person taking in default of appointment has legal title till exercise of, 1035. release of, by donee, 977, 1061. rule against perpetuities applied to, 1042. scope of, 1085-1038. seisin of donee defeated by exercise of, 275, 1045. shares to be taken under exercise of, 1046, 1049, 1052. simply collateral, 1060-1061. special. appointees under, restricted, 1035. conditions and purposes of, limited, 1038. coupled with a trust, 1046. defined, 1035. delegation of, 1047, 1048. excessive exercise of. 1053. extinguishment of, 1056-1061. failure to exercise, 1052. fraudulent exercise of, 1055. Interests to be created under, 1037. mode of appointment under, 1035, 1049, 1050. release of, 977. 1061. rule against perjietuities applied to, 1042. statutory, 1040. survivorship between joint donees ojf, 1048. suspension of, 1056-1061. time of exercise of, 1051. to executor, etc., in official capacity, 1047, 1048. vested interests under, when, 1046, 1052. POWER OF ATTORNEY, see Agent, conveyance made under, 888. death of principal revokes, 888. registry of, 1074. revocation of, 888. to be construed strictly, 888. to convey distinguished from authority of real estate agent, 888. to creditor authorizing sale, equivalent to equitable mortgage, 5S5. to execute sealed instrument must be under seal, 888. PRECATORY TRUST, 462. see Trust. PREFERE^XE OF CREDITORS IN ASSIGNMENT, see Fraudulent Conveyance. PREMISES CLAUSE IN DEED, consideration contained In, 892. function of, 892. grantor and grantee described in, 892, 893. habendum clause may qualify, 893. See Habendum, recitals contained in, 892. 922 INDEX. [The figures refer to sections.] PRESCRIPTION, allowance of disabilities for, 846. applies only to estates of inheritance, 854. applies only to property lying in grant, 844. continuity of user necessary for, 848. criterion of title by, 852, 853. distinguished from adverse possession, 843. easement acquired by, 101, 118, 843, 844. See Easement. arising by, extends how far, 101, 847. extinguished by, when, 106. effect upon, of protests by owner, 848, 849. exclusiveness of enjoyment under, 851. hostile character of, 852, 853. notoriousness of user under, S-jO. period of, 845, 846. protests of owner affect, 849. right under, arises to extent of customary user, 101, 847. tacking of adverse users, 848. what may be claimed by prescribing in a que estate, and by prescribing in one's self and one's ancestors, 855. PRETENSED TITLE, STATUTE OF, 857. PRETERMITTED CHILD, will revoked in favor of, 1027. See Will of Land. PRINCIPAL AND AGENT, see Agent ; Power of Attorney. PRIORITY, as between dower and husband's debts, 301, 302, 314. as between dower and husband's lessee, 240, 314. as between dower of vendee's widow and vendor's lien, 259. See Dower> as between judgment creditor and purchaser, 1076. as between lien creditor and purchaser, 1076. as between mortgagee and assignee of mortgage debt, 566-560. as between mortgagee of land and mortgagee of chattels annexed there- to, 25. as between mortgagor and assignee of land, assuming mortgage debt, 570, 571. as between mortgagor and assignee of land, not assuming mortgage debt^ 570, 571. as between mortgagor and assignee of part of land, 571. as between purchaser from husband and his heir or devisee, in respect of widow's dower, 300. as between purchasers of same tract of land, 1076, 1081. as between purchasers of successive parcels of land in respect of widow's dower, 309. as between simultaneous assignments of ijarts of land subject to mort- gage, 573. as between successive assignees of parts of mortgaged land, 572. as between vendor of land and dower of vendee's widow, 259. created by failure to record prior mortgage, 581, 582. by misconduct of prior mortgagee, 580. in recording, 1081. of creditors, under registry laws, 1077. INDEX. 923 [The figures refer to sections.] PRIORITY— Continued, of grantee in nnrecorcled deed, over a volunteer, 1076. over purchaser with notice, 1076. of judgment creditor of vendee of land as against vendee's assignee, 420. of later mortgage, if aided by legal title, 577-579. if aided by title deeds, 577. over defective first mortgage, 578. of legal title over one having equal equity, 575, 579, 582. of purchasers from grantor over grantee in unrecorded deed, 1076, 1083. of purchasers from heir over devisee in unrecorded will, 1032. of superior equity, over inferior equity, 575. over legal title, 575. of time controls as between equal equities, 575. tacking of third mortgage to first, so as to squeeze out second, 579. PRI'S'STE WATERS, as boundaries, 932. ownership of, 57. PRIVATE WAT, see Way. PRIVITY, adverse possession of one beginning his estate in, with owner, 832, 838. PRIVITY OF CONTRACT, one in, bound by covenants though land be assigned, 377, 378. PRIVITY OF ESTATE, for covenants running with land prevented by exercise of power, 1045. necessary to confirmation by enlargement, 989. to covenants running with land, 376, 901, 903. to covenants running with reversion, 378. to release by enlargement, 976. to release passing an estate, 975. to surrender, 982. to tack one possession to another under statute of limitations, 827- 830. not necessary to confirmation making sure a voidable estate, 988. PRIVY EXAMINATION OF WIFE, 282. I'ROBATB OF WILL, 1032. see Will of Land. PROCESS, see Due Process of Law. PROFIT A PRENDRE, apportionment of, 70. See Common. appurtenant, passes with land, 936. appurtenant to land, 67. conveyance of minerals in place distinguished from, 49. created by grant, 06. by prescription, 843, 844. See Prescription, easement distinguished from, 66, 89. extent of right limited by needs of land, 67. grant of, carries all rights necessary to enjoyment of, 66. in gross, 67. 92i INDEX. [The figures refer to sections.] PROFIT A PRENDRE— Continued, may be exclusive or in common, 66. nature of, 66. rent cannot issue out of a, 76. PROMISE, see Contract. PROMISSORY NOTE, see Note. PROOF, see Evidence. PROSPECT, easement of, 118. See Easement . PRO TURPI CAUSA, conditions, 505. considerations, 940. PUBLICATION, of notice of will, 1028. PUBLIC ENEMY, in.iuries to inheritance by, not waste, 379, 396. PUBLIC USE, land dedicated to, 1068-1070. See Dedication. land taken for, see Condemnation ; Eminent Domain. PUBLIC WATERS, accretions in, 812. See Accretion. alluvion, 812, 818, 814. See Alluvion. as boundaries to property, 932. at common law, 56. belong to state, 56. held in trust for people, 56. In United States, 56. islands arising in, 816. limit of state's dominion over, 56. riparian owner's interest in, 56. PUR AUTRE VIE, ESTATE, see Freehold ; life Estate ; Occupancy. PURCHASE MONEY, see Consideration ; Lien ; Mortgage ; Vendee's Lien ; Vendor's Lien. paid in installments, not rent, 75. PURCHASER, action by, of land along polluted stream, with notice of pollution, 54. assignment to, by vendee under contract of sale, 420. assuming mortgage debt, 302, 539, 570, 571, 909. dower as against, assuming mortgage, 302. dower assigned by, 306. dower assigned in land in inverse order of alienation, 309. dower is estate which is void as to, 242. dower of wife of, as against vendor's wife, 250, 251. See Dower, equity aids a, taking under defective execution of a power, 1054. See Power. INDEX. 925 [The figures refer to sections.] PUECHASEE^Contlnued, estoppel transferring after-acquired title affects subsequent, of same title from grantor, 1066. See Estoppel. evidence of fraud unavailing against, for value and without notice, 948, 951. See Fraud ; Fraudulent Conveyance, fixture transferred effects a severance as against, witli notice, 34, 38. for value and without notice, of property conveyed in fraud of creditors, 948. fraud of grantor as to creditors, effect, 948, 951. participation in by grantee, 951. grantee of profit a, of part of servient land causes an apportionment of profit, 70. heir talcing as special occupant, does not take as, 188. infant's conveyance repudiated as against, without notice, 859. instruments to be recorded as against, 1074. issue of marriage taking as, bars curtesy and dower, 222, 254. See Cur- tesy ; Dower, joinder of wife In conveyance to, operates only in favor of, or his privies, 269. measure of damages against, for withholding dower, 313. mortgage implied from deposit of title deeds as against. ."84. notice to, arising from registry, 1072. 1073, 1076, 1078-1080. obligation of, to see purchase money applied, 436-442. of cemetery lot, 121. of debts secured by mortgage. 56.5-569. of land subject to attachment lien, 578, 579. to dower. 242, 250, 251, 302, 306, 309. to mortgage, 263, 539, 570-574. assuming mortgage debt, 302, .539, 570, 571, 909. when mortgage is to secure future advances, 554. to vendor's lien, 586. of pew in a church, 121. of trust subject, 456-^59. quasi easements converted into easements In favor of, when, 97, 100. quitclaim deed as notice of defective title to, 978. real estate agent's duty to procure a, 888. recordation of instruments as against, 1076. effect of mistake. 1080. effect as notice of facts outside chain of title, 1076. recordation of transactions as against creditors as well as, 1077. .See Rec- ordation ; Registry, rent apportioned if lessor becomes a, of part of land out of which rent issues, 84. rent reserved to grantor's "son" Is a reservation to a, and is bad, 77. See Rent, servient tract transferred to, without notice of easement, extinguishes it, 109. See Easement, subrogation in favor of, of land subject to mortgage, 570, 571. trustee as a, of trast subject, 456-459. See Trust; Trustee, valuation of lands iri hands of, for dower of grantor's widow, 304. with notice of trust, himself a trustee, 4.34, 1033. without notice of trust, not bound by trust, 429, 433-435. 926 INDEX. [The figures refer to sections.] PURCHASE, TITLE BY, arises by act of parties, 784, 806. distinguished from title by descent, 784, 786, 787, 806. words of, contrasted with words of limitation, 140-141>. Q QUARANTINE, WIDOW'S, 300. see Dower. QUARRY, dower in, 265. See Minerals ; Mine. QUASI EASEMENTS, 88, 97, 100. see Easement. QUASI REVERSION, 160, 660, 672. see Possibility of Reverter; Reverter. QUIA EMPTORES, STATUTE OF, 5, 12. QUIET ENJOYMENT, COVENANT OF, 90S. see Covenant. QUITCEAIM DEED, contains no covenants of title, 978. contrasted with release, 978. excludes implication of good title in grantor, 978. grantee under, need not be in possession, 978. ipso facto notice of defective title, 978. notice to purchaser of outstanding claims though unrecorded, 978. no transfer of after-acquired title by estoppel in case of, 1066. words of limitation in, 148. QUO WARRANTO, deed of corporation when impeachable by, 869, 879. R i;eal estate agent, authority of, 888. commissions of, 888. duty of, when performed, 888. •;EAL FIXTURES, see Fixture. REAL PROPERTY, see Land, may become personalty, and vice versa, T2. REBUTTER, ancient warranty operating by way of, 897, 899. See Warranty, Ancient. RECITALS, contained in premises of deed, 892. See Deed. of good title in deed ground for passing after-acquired title by estoppel, 1066. See Estoppel, record of instrument as notice of recitals contained therein, 1078. INDEX. 927 ' [The figures refer to sections.] admission to, see Admission to Record; Kegistry. Interest arising by matter ot, cannot arise by prescription, 844. RECORDATION, see Registry, mistalce in, 1080. mistake of recording officer, liability for, 1080. of contract to convey land, 1074. of deed, 1074. of deed of trust, 1074. of judgment, 1071. of lease, 1074. of lis pendens, 1071. of mechanic's lien, 1071. of mortgages, 1074. See Mortgage; Kegistry. of power of attorney, 1074. of will of land, as against purchaser from heir, 1032. time of, 1081. unauthorized, effect as notice, 1079. REDDENDUM CLAUSE IX DEED OK LEASE, 895. easements, etc., reserved in, 895. See Easement, rent reserved in, 895. See Rent. REDEMPTION PROM MORTGAGE, see Equity of Redemption ; Mortgage. RE-ENTRY, see Condition ; Entry, for breach of express condition, 473—478. of implied condition, 196, 329, 467. REGISTRY, authentication of writings for, 1074. creditors protected by, 1077. efeect of, as between parties, 927, 1075. as constructive notice, 1073, 1078-1080. as to creditors and purchasers, 1076, 1077. as to facts outside chain of title of purchaser, 1078. when unauthorized, 1079. effect of destruction of record, 1076. laws In United States, 1071. mistake in recording instrument, 1080. nature of, 1071. notice under laws of, 1078-1080. from time of filing or of actual record of instrument, 1080. of contract to convey land, 1074. of conveyance of land, 1074. of deed of trust, 1074. of judgment, 1071. of lease, 1074. of lis pendens, 1071. of map or plat, 931. of mechanic's Hen, 1074. 928 INDEX. [The figures refer to sections.] REOrSTRT— Continued, of mortgage, 1074. to secure future advances, 554. of power of attorney, 1074. of will of lands, 1032, 1071. origin of, 1071. parties as to whom, necessary, 1075-1077. priority in recording, 1081. priorities under laws of, 1075-1077. 1081. See Priority. purchasers who are protected by, 1076. must be for value, 1076. must be subsequent purchasers, 1076. must be without notice, 1076, 1078. who is a purchaser under laws of, 1076. purposes of, 1072. time within .which to be made, 1081. to what instruments applicable, 1074. RELATIONSHIP. degrees of, 789-793. RELEASE, a secondary conveyance at common law, 971. contingent remainder transferred by, 658, 977. contrasted with surrender, 979. covenant of title not subject to, by one who has parted with possession, 913. enlarging an estate, 976. practically identical with confirmation by enlargement, 989. essentials of, enlarging estate, 976. from disseisee to disseisor, 974. to disseisor's life tenant. 974. from lessor to disseisor of life tenant. 977. from one coparcener to another, 97."). from one joint tenant to another, 727. 975. inuring by extinguishing a right, 977. by passing estate, !)7.'). by passing right, 974. livery of seisin when unnecessary, 976. nature of, 972-977. of debt secured by mortgage is, of mortgage, .569. of dower, 269, 283-287, 977. before assignment, 299. operates only as to grantee and his privies, 269, 283-285. operates to extinguish dower, but passes no interest, 251, 269, 283. of easement, by deed, extinguishes it, 104, 108. of mortgage, does not discharge mortgage debt, 569. of powers, 977, 1061. of rent causes aijporfcionment when, 84. of sealed instrument must be under seal, 569. possession in releasee when, 976, 978. privity of estate when necessary to, 975, 976. quitclaim deed contrasted with, 978. INDEX. 929 [The figures refer to sections.] RELEA SE— Continued, to tenant of freehold, 974. trustee's wife need not unite in deed of, 244. words of limitation when necessary to, 148, 975, 976. RELICTION, apportionment of, 814. nature of, 811, 813. title by, 811, 813, 814. RBLIE'F, incident to feudal tenure, 8. RELIGIOUS PURPOSES, dedication of land for, 1068. See Dedication, trust for, 4G4. REMAINDER, accelerated when. 638. action for waste by him in, 393. adverse possession against one entitled by, 841. See Adverse Possession. after fee simple or fee qualified void, 592, 595. alternative, 595, 639. attachment of, 664. awaits regular expiration of preceding estate, 592, (550. catching bargains with one entitled in, when fraudulent. 946. construed as vested, and not contingent, 592, 601, 603, 606, 608. contingent, 597-634. See Contingent Remainder. creditor may subject, when, 6.59, 664. cross, express, 602, 640, 641. implied in will, 642, 643. shares of survivors in case of, 641. curtesy barred by interpolated, 220, 221, 249, 252, 253. curtesy in, 220. 688. definition of, 590. distinguished from reversion, 590. dower barred by interpolated, 220, 221, 249, 252, 253. dower in, 249, 688. eifect upon of illegality of contingency, 648, 649. entry for breach of implied condition by him in, 467. essential characteristics of, 591-59."i. estate once good as, can never take effect as executory limitation, 674. freehold contingent, must be preceded by freehold, 592. gap between, and preceding estate, destroys, when, 594. impossibility of, generally makes vested, 594. possibility of, makes contingent, 594. in chattel, 315, 682. in estate for years, 315. liability of, for debts, 659, 604, limitations by way of, see Limitation, limited on breach of express condition, not good, 592, 650. of implied condition, good, 276. llvei"y of seisin to particular tenant inures to him in, when, 592. MiNOK & W.Real Prop. — 59 930 INDEX. [The figures refer to sections.] REMAINDER— Continued, must vest in right during continuance of preceding estate or tlie moment it terminates, 594, 645, 650. no, after fee simple or fee qualified, 595. no contingent freehold, after term for years, 592. no, in derogation of preceding estate, 592, 650. not contingent, merely because enjoyment of possession is uncertain, 590. on a contingency in a double aspect or on a double contingency, 595. preceding particular estate, at will, not sufficient to support, 592. essential to, 592. for years, cannot be followed by contingent freehold, 592. must arise by same instrument and at same time as, 593. must be less than fee simple, 592, 595. must continue till vesting of, 594, 645. must terminate regularly, 592, 650. subsequent destruction of, avoids, when, 592, 593, 635-638. void in its creation defeats, 593. presumed not to be Intended to take effect in derogation of preceding estate, if possible, 650. presumed to be vested rather than contingent, 592, 606, 608. release by him in, 976. release of power to him in, 1061. rent may issue out of a, 76. to a class of persons. 606. to heirs, issue, descendants, etc.. 602, 604. after preceding freehold In ancestor, 609-634. See Rule In Shelley's Case. of grantor or testator, a reversion, 607. with qualifying words, 608. to one not a party to deed, 887. to "surviving children," etc., 600. to unbegotten bastard invalid, 648. transfer of, 657, 658. vested, 596, 600, 601, 606, 608, 636. See Vested Remainder, words construed as importing time of ^enjoyment and not contingency, if possible, 601. REMOTENESS, limitations void for, see Rule Against Perpetuities. RENT, different meanings, 71, 72. RENT GRANTED, action of debt for arrears of a freehold, 73. annuity distinguished from. 62. apportionment of, S4. a right to a certaiu profit, 74. arrears of, 71, 73. charged with distress, 79-81. definition of, 72. distress to recover, 70-81. estate in, depends on agreement, 82. INDEX. 931 [The figures refer to aectiona.] RENT GRANTED— Continued, in lieu of dower, 295, 310. less favor sbown to, tljan to rent reserved, 84. must issue periodically, 75. out of lands or tenants corporeal, 76. nature of. 72. 74. not a return for land, usually, 77, 78. seek, 79-81. tax upon, a tax upon land, 73. transaction not good as a, may be good as a contract, 72. REXT RESERVED, see Landlord and Tenant, acceptance of, creates estate from year to year, 346, 347. action of debt for arrears of, 73. apportionment of, 84, 207, 365, 366. arrears of, 71, 73, 364. assignee of lease liable for, 366, 994. assignment of, 361. of remedies for, 361. of reversion carries, 361, 366. by Joint tenants, 359, 726. cannot issue out of incorporeal property, 76. out of personalty, 76, 78. charged with distress, 79-81. covenant for re-entry for default in payment of, 372. covenant to pay, 366, 369. See Covenant, curtesy in, 220, 234. seisin in law sufficient for, when, 215. death of lessor or lessee between rent days, 207, 365. definition of, 72. destruction of land or buildings affects, 366. dower in, 234, 249, 264. widow to elect between dower in land or, 264. due when, 207, 362, 365, 366. estate in, measured by tenant's estate in land leased, 82. eviction of tenant affects, 366, 373. See Eviction. exception, in lease, of land or growths thereon, not a, 74. extinguished when, 366, 369, 373. fee farm, 82. freehold, sued for, 73. ground, 82, 83. in arrear to whom payable, 207, 364-366. incident to estate at will, 341, 342. to estate by sufferance, 346. to reversion, 661. increase of, upon tenant's transfer, makes transfer a sublease, not aft assignment, 375, 991. in reddendum clause of lease, 895. maximum estate In, 83. may issue out of remainder or reversion, 76. mode of reserving, 359. must be a right to certain profit, 72, 74. 932 INDEX. [The figures refer to sections.] RENT RESERVED— Continued, must issue in return for land that passes, 72, 77, 78. out of lands or tenements corporeal, 72, 7G. periodically during term, 75. payable on leased premises, 3B2. to him wlio has reversion, 303, 30(3. to lessor alone, creates lite estate, in, to lessor and his heirs, not to third person, 77, 360, 363. to wrong person, 363. when, 362. relief in equity against forfeiture tor nonpayment of, 529. rent seek, not charged with distress, 79-81. rent service, 79, 80, 81, 83. several, meanings of rent, 71. several premises embraced by one lease, 359. sublessee of dead life tenant to pay, when, 44, 207, 365. surrender by tenant of premises to landlord affects, 366. ■tax upon, a tax on land, 73. tenant entitled to emblements must pay, for premises planted, 42. transaction not good as a, may be good as a contract, 72, 77, 78. widow's right to, for premises occupied as her quarantine, 300. RENTS AND PROFITS, accounting for, in action of ejectment, 346. in foreclosure proceedings, 551. cestui que trust entitled to, 433. coparceners liable to each other for, when, 773. joint tenants liable to each other for, when, 731. mortgagee liable for, 551. mortgagee's agreement to set, against interest, 551. of equitable separate estate usually personalty, 865. of estate by sufferance, recoverable as damages, in ejectment, 346. tenants in common liable to each other for, when, 757. REPAIR, covenant to, 202, 370. to keep in good, 370. to leave in good, 370. to return in good, 370. to surrender in good, 370. estovers for purposes of, 39. lessor, in absence of covenant, not bound to, 356, 370. tenant, In absence of covenant, not b-aiud to, save to prevent wnste, 202, 332, 347, 356, 370, 379, 386. See J^andiord and Tenant; Waste, tenant not entitled to compensation for making, 202. EEPRESENTATIONS, title by estoppel arising from, 1350, 1066, 1067. See Estoppel. REPUBLICATION OF WILL, 1028, 1029. see Will. REPUDIATION, of infants' conveyance, 859. See Capacity of Grantor in Deed. INDEX. 833 [The figures refer to sections.] REPUGNANCY, between premises and habendum, 893. between provisions in will, see Will of Land. condition void for, 515-5-'7, G49. in restraint of alienation, 51t5-525. restricting liability of premises granted for debts, 52G. restricting use of premises granted, 527. RESCISSION, mistake, when ground for, 9r)i!, 955. See Mistake. RESERVATION, contrasted with exception, 94. defined, 94. easement arising by, 94, 98-lUU, 118. easement arising by implied, 98-100, 118. fixture severed by, upon transfer of land, becomes personalty, 34. fructus naturales severed by, become personalty, 40. life estate arising by, 185. of rent, see Rent Reserved. of title in vendor. 418. contrasted with vendor's lien, 418. of vendor's lien, 58(j. words of limitation necessary to, for estate of Inheritance, 144, 149. RESIDUARY DEVISE, effect of lapse upon, 1031. See Lapsed Devise ; Will of Land. RESTRAINT OF ALIENATION, condition in, 516-525. RESTRAINT OF MARRIAGE, condition in, 507-514. RESTRAINT OP TRADE, condition in, 506. See Condition. RESULTING TRUST, 413^19. see Trust; Trustee. REVERSION, adverse possession against one in, 841. after fee tail, 165, 166. always vested, 660. arises by act of law, 660. assignee of, to sue and be sued upon covenants, 378, 994. catching bargain with one In, when fraudulent, 946. covenants running with, 378, 994. creditor may subject, 664. curtesy in, 220. distlnguishment from remainder, 590, 660, 662-664. distress lies for rent where lessor has, 80, 81. dower in, 249, 250, 264. fealty Incident to, 661. lease requires in grantor, 967. See Landlord and Tenant; Lease. liability of, for grantor's debts, 664. merger of particular estate In, 665-671. See Merger. nature of, 660. 934 INDEX. [The figures refer to sections.] REVEBSION— Continued, prescriptive title as against one in, 853. See Prescription. quasi, 160, 660, 672. See Possibility of Reverter; Reverter. re-entry for condition broken passes vcitli, 476. iSee Condition. release of power to one in, 1061. See Power. remainder to grantor's or testator's lieirs, is a, 607. rent follows, 360, 361, 363, 366. rent Incident to, 661. rent may issue out of a, 76. rent reserved by one in, is a rent service, 80. See Rent Reserved. REVERTER, possibility of, after fee conditional, 164, 660, 672. after fee qualified, 160, 660, 672. after fee upon condition, 160, 660, 672. assignable, 477, 672. rule against perpetuities applied to, 672. right of, in dedicator upon abandonment of public easement, 1070. such possibilities and rights always contingent, 672. REVOCATION, of license, 126, 127. of offer to dedicate, 1070. of power of attorney, 888. of will, 1002, 1019-1029. See Will of Land. in exercise of power of appointment, 1049. revival of revoked will, 1028, 1029. power of, in a conveyance, 1043. See Power. RIPARIAN OWNER, see Water Rights. RIVER, see W.nter Rights. ROAD, see Easement ; Highway ; Way. RULE AGAINST PERPETUITIES, applied to alternative limitations, 702. to appointment under a power, 1041. to contingent limitations only, 695, 696, 699. to contingent remainders, 647. to limitation to a class, 704. to limitation upon a dying without heirs, etc., 707. to limitation upon an indefinite failure of heirs, etc., 705-707. to possibilities of reverter, 672. to powers of appointment, 1041. 1042. to shifting limitations, 702, 703, 70.5-707. to springing limitations, 697, 698, 701, 704. circumstances at time of testator's death determine application of, 701. considerations leading to adoption of period prescribed by, 700. effect of remoteness under, 702. failure of one of several limitations under, does not affect validity of those that do vest, 699. gestation included in "life in being," 697. INDEX. 935 [The figures refer to sections.] RULE AGAINST PERPETUITIES— Continued, improbability tbat limitation will take effect beyond period of, Immaterial, 698. limitation too remote, to be separated into two contingencies wben, 703. limitation to posthumous sou of posthumous son within, 697. meaning of "life in being" within, 697. necessity for, 694. period prescribed by, 696. adopted from marriage settlement, 700. estimated from what date, 701. precise terms of, 695. probability that limitation will never vest immaterial, 698. separation of contingencies, to uphold limitation under, 703. subsequent change of circumstances immaterial, 701. two periods of gestation may be included, 697. ulterior limitations may be valid though following after others too re- mote, 702. RULE IN DUMPOR'S CASE, 497. RULE IN SHELLEY'S CASE, applied in wills, 633. to executed trusts, (334. to executory trusts, 634. to personal property, 632. both estates legal, or both equitable, 634. circumstances necessary for, 611-61.5. ■"heir," etc., must be used in technical sense, 615. "heirs," etc., named under power of appointment, 1045. instances of application of, 622-634. limitation to "heirs," etc., must be such as would ordinarily create con- tingent remainder, 612. limitation must be to "heirs," etc., of preceding tenant and of none other, 613. not applicable to executory limitations, 689. policy of, 616. precise terms of, 610. reasons for, 617-G21. s SALE, by trustee under deed of trust, 4.52. See Deed of Trust ; Mortgage, chattel annexed to land passes on, of land, 34. conditional, 540-544. equitable title to land by, see Contract to Convey Land; Specific Per- formance, fructus naturales pass on, of land, 38. severed from land by, become personalty, 40. mortgage distinguished from conditional, 540-544. of chattels on land implies license to enter and remove them, 127. See License, of fixture operates a severance from land, 34. of growing crop, a sale of personalty wben, 41. of growing trees, etc., a sale of land, when, 40. 936 INDEX. [The figures refer to sections.] SALE— Continued, of infant's land, 859, 830. of insane person's land, 858. of land by the acre, 935. carries growing crop, though mature, 41. on which license to be exercised revolies license, 126. of servient tract to purchaser without notice extinguishes easement, 109. of trust subject under decree of court, 446. power of, see Power. carries power to make conveyance, 1037. does not authorize exchange, 1037. does not authorize mortgage, 1037. extinguished when, 1038, 1058. implied when, 1044. in joint executors, 1048. in joint trustees, 1048. In life tenant, 151, 1051. reserved to mortgage, 546, 547. statutory, 1040. to pay debts not to be exercised if no debts, 1038. quasi easements converted into easements by. of dominant tract, 97. of servient tract, 100. tenant cannot cut timber on leased premises for, 39. SAND, AS PROFIT 1 PRENDRE, 69, 70. SATISFACTION, \ of deed of trust or mortgage, 556. presumed after 20 years, 550, 556. SCHOOL, dedication of land for, 1068-1070. See Dedication. SCINTILLA JURIS, 402. SCROLL, affixed by way of seal, 921. See Seal. SCUTAGE, 6. SEAL, authority of agent to execute instrument under, must be under, when, 888. See Power of Attorney, of real estate agent need not be under, 888. breaking off or defacing, 900. nature of, 920, 921. necessary to a deed, 885, 919. not necessary to a will, 1015. origin of, 917. power calling for writing under, no delivery necessary, 1049. release of instrument under, must be under, 569. scroll equivalent to, when, 921. SEISIN, actual, 131, 213, 906. constructive, 131, 213, 906. > INDEX. 937 [The figures refer to sections.] SEISIN— Continued, covenant of, broken, if at all, as soon as made, 906. embraces constructive, as vs^ell as actual, 906. measure of damages for breach of, 906, 914. nearly equivalent to covenant of right and power to convey, 907. not broken hy existence of liens, 906. recovery upon, bars dower, 269, 284. destruction of, or disseisin, see Adverse Possession ; Disseisin, distinguished from right of entry or action, 131, 213. husband's, for dower, 241-247. See Dower. • in fact or in deed, 131, 213. usually necessary for curtesy, 214. In law, 131, 213, 794. sufBcient for dower, 241. when sufficient for curtesy, 21.5. livery of, 132-134. See Livery of Seisin, meaning and nature of, 129, 130. of donee of power defeated by its exercise, 1045. of freehold estate only, 130, 315, 318. See Freehold, of heir, 794. of Incorporeal property, 131, 215. principles of, not applicable to equitable estates, 429. to use of another, 402. See Statute of Uses ; Trust ; Use. wife's sole, for curtesy, 217. wife's unlawful, affects curtesy, 219. See Curtesy. tfBNinTY, effect of, upon a will, 1005. See Will of Land. SEPARATE ESTATE OF MARRIED WOMAN, equitable, see Equitable Separate Estate. alienation of, may be restrained, 519, 865. chargeable with debts, 865. conveyance of, independently of statute, 865. under statute, 866. creature of equity, 865. curtesy in, 224. may be conveyed to husband direct, 865. statute to be substantially followed, 866. statutory. conveyance of, 866. covenant in conveyance of, 866. curtesy in, 225. dower is, when, 866. power to convey by deed, as authorizing conveyance by attorney, 860. SERVIENT TRACT, see Easement; Profit k Prendre; Common. SEVERANCE, of fixtures from land, 34. accidental, 34. actual, 34. constructive, 34. 938 INDEX. [The figures refer to sections.] SEVERANCE— Continued, of fructus industriales from land, 41. of fructus naturales from land, 40. actual or constructive, 40. SHELLEY'iS CASE, RULiE IN, see Rule in Shelley's Case. SIGNATURE, cancellation or destruction of testator's^ revokes vpill vi'lien, 1024. , mere, by one of several joint grantors not sufficient, 892. necessity of, for deed, 919. of attesting witness to deed, as proof of delivery, 924. of attesting witness to will, must appear at end of will, 1017. of testator under statute of wills, 1015, 1017. SOCAGE, military tenure converted into, 14. tenure in free and common, 6, 14, 15. tenure in villein, 6. SPECIAL LIMITATION, distinguished from conditional limitation, 479, 480. distinguished from condition subsequent, 158, 190, 479, 511, 523, J526. fee qualified, an estate upon, 158. life estate may be an estate upon, 190. marks utmost limit of estate and does not terminate it prematurely, 479,- 511, 523, 526. restraining alienation, 523. marriage, 511. subjection of land to debts, 526. SPECIFIC PERFORMANCE, of contract to convey land, wherein wife has not united, 287. See Con- tract to Convey Land, of contract to lease land, 321. of covenant for further assurance, 910. SPENDTHRIFT TRUST, 430, 526. SPOLIATION, see Alteration. SPRING, cutting off percolating water from, 59. See Water Rights. STATE, statute of limitations does not usually run against, 823. See Adverse Possession ; Statute of Limitations. STATUTE DE DONIS CONDITIONALIBUS, annuities and corodies not within, 62. applies only to lands and tenements, 16.5-167. .fee conditional converted into fee tail by, 165, 168. substance of, 165. three estates created by, 165. STATUTE OF CONVEYANCES, see Statute of Frauds. INDEX. 939 [The figures refer to sections.] STATUTE OF DESCENTS, see Descent; Heirs. STATUTE OF FRAUDS, applies to assignmeut of lease, 992. contracts to convey or lease land, 8S3, 884. conveyance of land, 335, 347, 883, 884. by one in adverse possession, 829. See Adverse Possession, by one joint tenant to another, 728. by tenants in common to eacb other, 761. leases, when, 320, 821, 883, 884. mortgage implied from deposit of title deeds, 584. oral compromise of boundary line, 835. oral grant of easemeiit, 93. transfer of fructus industriales, 41. of fructus naturales, 40. of real fixtures, 34. voluntary partition, between coparceners, 780. between joint tenants, 740. between tenants in common, 761. assignment of dower not within, 307. conveyance or lease invalid under, may create estate at will, or from year to year, 335-347. dedication not within, 1069. licence not within, 124. purchase of burial lot not within, 121. specific performance of contract within, see Specific Performance, voluntary partition not within, when, 780. STATUTE OF LIMITATIONS, see Adverse Possession, acknowledgment of claimant's title stops running of, 839. adverse possession under, 824-840. applied, as between landlord and tenant, when, 832, 838. to deeds of trust, 556. to mortgages, 539, 556. to vendor's lien, 556. a source of legal title, 820. continual claim as prolonging period of, 818. coverture as prolonging period of, 821. debt barred by, does not discharge mortgage, 556. disabilities of claimant as prolonging period of, 821, 822. disability of one co-tenant does not inure to others, 821. Infancy as prolonging period of, 821. Infant's repudiation of conveyance must occur within period of, 859. Insanity as prolonging period of, 821. nature of claimant's entry to stop running of, 842. new right or title acquired by claimant, 841. nullum tempus occurrit regi, 823. origin of, as applied to land, 817. period prescribed by, 821. runs not, against state, 823. against widow, before dower assigned, 299. until a right of action has accrued, 841. 940 INDEX. [The figures refer to sections.] STATUTE OF LIMITATIONS— Continued, tacking of disabilities of claimants, 822. tacking of possessions of occupants, 82T-830. STATUTE OF MORTMAIN, 874-879. see Corporation, annuities and corodies not within, 62. STATUTE OF PAROL AGREEMENTS, see Statute of Frauds. STATUTE OF PRETENSED TITLES, 857. STATUTE OF QUIA EMPTORES, 5, 12, 83, 151. STATUTE OF REGISTRY, see Recordation ; Registry. STATUTE OP USES, abeyance of freehold under, 136. alien seised to use under, 402. bargain and sale under, 401. See Bargain and Sale. circumstances necessary to operation of, 402—404. converts use into legal title, 401. conveyance by liusband to wife under, 403. conveyances under, 401. covenant to stand seised under, 401. See Covenant to Stand Seised. devise to uses under, 401. disseisor seised to use under, 402. estate conveyed under, 402. executes use, when, 401, 403, 409-412. executory limitations arising under, 675. See Executory Limitation. feoffment to uses under, 400, 401. gist of, 401^04. power of appointment under, 1041. See Power. of revocation under, 1043. seisin to use under, 402. tenants for years cannot be seised to use, 412. uses unexecuted by, are direct trusts, 407-412. STATUTE OF WILLS, see Executory Limitation ; Wills, abeyance of freehold permitted under, 136. executory limitations arising under. 675. formalities of wills required by, 1013-1018. power of appointment under, 1041. See Power. of revocation under, 1043. of sale under, see Sale, revocation of will under, 1019-1027, 1029. STATUTORY POWER, 1040. see Power. STIPULATED DAMAGES, not a penalty, 531. STOCKHOLDERS, interest of, in corporation land is personalty, 20. INDEX. 941 [The figures refer to sections.] STRANGER, alteration of instrument by, 958. condition not to be performed by, 483. delivery of deed in escrow to, 923. delivery of deed to, 923. lessee's obligation to, 351-354. lessor's obligation to, 350. limitation in deed to, not a party thereto. 887. redemption of land from mortgage by, 483, 551. tenant liable for waste by, 3S6. STREAM, RIGHTS IN, see Water Rights. STREET, ■ condemnation of, see Condemnation, dedication of, 1068-1070. See Dedication, description of lots by reference to, 933. See Description, vendor estopped to prevent vendee from using, described as bounding lot sold, 102. See Estoppel. SUBINFEUDATION, 5, 151. SUBLESSEE, covenants do not run in favor of or against, 376. See Covenant. distinguished from assignee, 374. 370. emblements in favor of life tenant's, 44, 47. See Emblements. not in privity with lessor, 374, 376. of estate at will, 337. by sufCerance, 344. for years, 329. SUBROGATION, of purchaser paying off mortgage to rights of mortgagee, 570, 571. SUBSEQUENT LEGITIMATION OF BASTARD, see Bastard, effect of, upon curtesy, 226. SUBSEQUENT PURCHASER, see Purchaser. SUBSTITUTION OF TRUSTEE, 446, 461. see Trust; Trustee. SUBTERRANEAN STREAM, rights in, 58. See Water Rights. SUPPORT, not subject of prescription, 853. of buildings. by land, 114. by other buildings, 100, 114. of land, see Easement. acquired by natural right, 92, 113. by adjacent land, 113. by subjacent land, 113. power to be exercised for, cannot be exercised till necessity arises, 1038. ceases on death of person supported, 1058. 942 INDEX. [The figures refer to sections.] SURETY, covenantor becomes, upon assignment, 377. mortgagor becomes, wiiere purchaser of mortgaged land assumes mort- gage, 539, 570, 571. SURFACE WATER, see Water Rights, contrasted with water running in defined channel, 119. drainage of, a natural easement, 92, 119, 120. See Easement, drip from eaves of house, 120. lower proprietor not entitled to unobstructed flow of, 119. lower proprietor's right to throw back, upon upper land, 119. civil law rule, 119. common-law rule, 119. In case flow of, is aided by ditches, etc., 119. upper proprietor must not pollute, 119. SURPLUS, AFTER SATISFYING LlJliM, see Equity of Redemption, dower in, 262, 263. SURRENDER, apportionment of rent upon a, 366. See Rent, a secondary conveyance at common law, 964, 971. conditions cease to operate upon, 986. contrasted with release, 979. covenants broken not discharged by, 986. covenants cease to operate upon, 986. deed required for, when, 984. definition of, 979. effect of, on tenant's estoppel to deny landlord's title, 357. See Estop- pel; Landlord and Tenant, grant by way of, suttices, 983. in law, 985. livery of seisin not essential to, 983. merger as result of, 981, 986. See Merger, privity of estate necessary to, 982. surrenderee must be the immediate remainderman or reversioner, 981. surrenderor must be in possession, 980. to one Joint tenant inures to all, 727. SURVIVORSHIP, between joint devisees, in case of lapse, 1030. between joint tenants, 732. curtesy affected by, 217. dower affected by, 246. between joint trustees or executors, power affected by, 1045. between tenants by entireties, 746. executory limitation dependent upon, 677. no, between coparceners, 768. no, between tenants in common, 760. remainders dependent upon, 600, 602. See Remainder. SUSPENSION, see Extinguishment, of easement, 107. See Easement, of powers, 1060. See Power, of rent, 36G, 373. See Rent. INDEX. 943 [The figures refer to sections.] TACKIXa, by way of mortgage to secure future advances, 554. of debts to mortgage as condition ot redemption, 552, 553. of disabilities, in adverse possession, S'SI. in prescription, 845, 840. of possessions In adverse possession, 827-830. of third to first mortgage, so as to squeeze out second, 579. TALTARUM'S CASE. fee tail first barred, in, 170. TAXES, covenant to pay, runs witti land, 375. life tenant's duty to pay, 205. mortgagee credited with, 551. upon reut are, upon land, 73. TENANT, see Landlord and Tenant. attornment of, 4. under feudal system, 1-15. TENANT AT WILL, see Estate at Will. annexation of fixture by, presumed not permanent, 35. See Fixture. entitled to emblements, when, 42. See Emblements. fixture removable by, when, 35. TENANT BY ENTIRETIES, see Entireties. TENANT BY SUFFERANCE, see Estate by Sufferance, not entitled to emblements, 42. TENANT FOR LIFE, see Life Estate, acceptance of new lease by. a surrender in law of old one, when, 985. apportionment of rent upon death of landlord who is, 305. See Reut. confirmation by reversioner of lease by, 987. disseised, cannot surrender to reversioner before re-entry of, 980. duties of, in general, 191. emblements for, when, 42, 44, 46. See Emblements, estovers for, when, 39, 382. See Estovers, fixtures removable by, when, 36. See Fixture. license by, to lessor to enter for specific purpose not a surrender, 985. power of, to lease or mortgage extinguished by transfer of his own estate, 1060. power to lease or sell conferred upon, 1033. See Power, reversioner of, cannot release to sublessee of, but may confirm, 988. rights of, in general, 191. with unlimited jwjwer of disposition, becomes fee simple owner, 186. TENANT FOR YEARS, see Estate for Years ; Landlord and Tenant ; Lease, acceptance of new lease by, a surrender in law of old one, when, 985. cannot surrender before entry, 980, 981. See Surrender. 944 INDEX. [The figures refer to sections.] TENANT FOR TEARS— Continued, confirmation may enlarge estate of, 987. emblements for, when, 42, 44, 45. See Emblements. fixtures removable by, when, 35. See Fixture. license by, to lessor td enter for specific purposes, not a surrender, 985. may surrender to reversioner for years, 981. no release to, by way of passing a right, 974. ousted, cannot surrender to lessor before re-entry, 980. power to lease or sell conferred upon, 1033. See Power. release to, by way of enlargement, 976. See Release. TENANT FROM YEAR TO YEAR, see Estate from Year to Year ; Landlord and Tenant. TENANT IN COMMON, action by or against, joint or several, 756. adverse possession of one, against another, 758, 832, 838. of purchaser from, as against grantor's co-tenants, 833. conveyance to co-tenant by, 761. covenant of seisin violated by existence of, 906. created by breaking up of joint or coparcenary estates, 753. by express limitation, 750. by grant of undivided portion of one's land to stranger, 751. by limitation to several "to be equally divided," etc., 752. cross-executory limitation to, see Executory Limitation, cross-remainder to, see Remainder, curtesy in land held by wife as, 217. disability of one, does not prevent running of statute of limitations against another, 821. dower in land held by husband as, 246. dower to wife of, assigned in undivided portion, 310. exchange by, 969. incidents of estate of, 75.5-701. lapse of devise to, dying during testator's life, 1030. modes of creating estate of, 740. nature of estate of, 748. of party wall, 116. owner of surface not a, with owner of lower strata, 17. partition of estate of, 763, 970. See Partition, possession by wife's, is wife's possession for purpose of curtesy, 214. of one, inures to all, 758. properties of estate of, 754-761. redemption by, of land mortgaged, 536, 551. release not proper to convey share of one, to another, 975. rents and profits accounted for by, 757. repair of premises belonging to, 7.59. survivorship not an incident of estate of, 700. termination of estate of, 762, 7ij3. union of all shares in one. terminates estate, 762. of dominant and servient tract in hands of, does not extinguish easement, 107. waste by, 393, 757. TENANT IN COPARCENARY, see Coparcener. INDEX. 945 [The figures refer to sections.] TENANT IN PEE SIMPLE, see Fee Simple. TENANT IN TAIL, see Fee Tail. TENANT PUR AUTRE VIE, 187-189. see Life Estate, emblements for, 42, 44. See Emblements. TENDER, of performance of condition, 494. TENEMENT, annuity not a, 62. corody not a, 62. distinguished from modern, 16. embraces incorporeal as well as corporeal property, 16. meaning of, 4, 16. statute de donis embraces only, 165-167. statute of uses eiUbraces only. 410. TENENT>UM CLAUSE IN DEED, 894, TENURE, allodial, 2. 3. feudal, 1-15. nature of, 4, 6. TERM FOR TEARS, see Estate for Years ; Landlord and Tenant ; Lease. TESTAMENT, see Will of Land. TESTATOR. see Will of Land. seal of, not necessary to will, 1015. signature of, 1015. of another for, 1015. THEOLOGICAL SEMINARY, trust for, 464. TIMBER, see Estovers ; Pructus Naturales. dower in, upon wild land, 266. sale of growiug, implies license to cut and remove, 127. severed by stranger, belongs to landlord, 334. waste in, 382, 387. See Waste. TITLE, liy accretion, see Accretion. by adverse possession, see Adverse Possession. by alluvion, see Accretion; Alluvion. by avulsion, see Accretion ; Alluvion. by contract to convey, see Contract to Convey Land; Specific Perform- ance. by conveyance, see Conveyance ; Deed ; Statute of Frauds. by dedication, see Dedication. by dereliction, see Accretion; Alluvion. Htnor & W.Real Prop.— 60 9^6 INDEX. [The figures refer to sections.] TITLB^Coutinued, by descent, see Descent. by devise, see Devise ; Will of Land. by eminent domain, see Condemnation; Eminent Domain. by escheat, see Escheat. by estoppel, see Estoppel. by exception, see Exception. by exercise of power of appointment, see Appointment ; Power. by Inheritance, see Descent. by lease, see Landlord and Tenant ; Lease. by occupancy, see Occupancy. by prescription, see Prescription. by reliction, see Accretion ; Avulsion. by reservation, see Reservation. by sale, see Contract to Convey Land ; Specific Performance. by will, see Devise; Will of Land. covenants of, see Covenant. disclaimer of, by devisee, 1011. by grantee, 962. distinguished from estate, 128. examination of, see Description ; Lien ; Recordation ; Registry, landlord's right to defend tenant's, 358. life tenant's duty to defend, 206. mistake of law as to, 954. quitclaim deed excludes implication of good, 978. registry of, see Recordation ; Registry. transfer of after-acquired, by estoppel, 1066. See Estoppel, vendor of chattels annexed to land reserving, may remove them, 25. TITLE DEEDS, equitable mortgage implied from deposit of, 584. TITLE PARAMOUNT, see Condition; Re-entry, curtesy barred by, 219, 232. dower defeated by, 232, 242, 278. emblements denied, if tenant's estate terminates by, 48. jointure of widow lost by, 292. rent apportioned upon eviction of tenant by, 366. See Rent reversioner by, not bound by covenants in lease, 378. TOLL ROAD, a franchise, 63-65. TOMB, ill a church, 121. TORTIOUS CONVEYANCE, alienation of estate for life by, 196. of estate for years by, 329. of fee tail by, 524, 649, 650. as breach of implied condition, 196, 329, 467. bargain and sale not a, 998. common recovery a, 196, 998. covenant to stand seised not a, 998. disseisor might pass prima facie title by, 135. INDEX. 947 [The figures refer to sections.] TORTIOUS CONVEYANCE— Continued, donee' of power in gross, -transferring his own interest by, extinguislies power, 1060. See Power, feoffment a, 196, 965, 99S. fine a, 196, 998. grant not a, 997. lease and release not a, 998. TRADE, condition in restraint of, 506. See Condition, fixtures, 29. See Fixture. TREASON, blood tainted by, causing escheat, 156. fee tail forfeitable for, when, 1T4, 177, 179. forfeiture of land for, 155. grantee in deed attainted of, 880. grantor in deed attainted of, 867. heir attainted of, 785. TREES, see Estovers ; Fructus Naturales ; Timber. TRESPASS, by landlord upon tenant's land, 334. by stranger upon tenant's land, 334. coparcener liable to co-tenant for, 772. removal of fixtures by tenant, 85, 36: tenant liable to one guilty of, when, 354. TROVER, lies for building on land of another, when, 21. TRUST, see Equitable Estate ; Trustee. active use converted into direct, 411. agent dealing with subject of agency creates a constructive, 427. application of purchase money of, 436-442. arising from presumed intention, 413-423. banls account of trustee, 449. cemetery, 464. cestui to receive rents and profits of, 433. charitable, 464. condition may create a, 475, 902. confirmation by cestui of trustee's purchase of, 459. consideration paid by another than grantee raises an implied, 421-423. constructive, 413, 424-428, 456-459. conveyance upon, which falls to take effect, 417. conveyance without consideration or declaration of, a resulting, 415. co-tenant buying outstanding claims against estate creates a constructive, 427. covenant may create a, 902. curtesy In a, 223, 224. custody of, by trustee, 449. death of trustee, 1048. declared as to part, but silent as to rest, 416. deed of, see Deed of Trust ; Mortgage. 9i8 INDEX. [The figures refer to sections.] TRUST— Continued, definition of, 406. depreciated currency accepted by trustee, 451. direct, 407-412. disclaimer of, by trustee, 460. duties of trustee, 44? educational, 464. ejectment supported or defended by equitable title, when, 432. equitable conversion an implied, 420. See Equitable Conversion, equity of redemption a resulting, 536. escheat of legal estate, 445. for accumulation, 716. fraud may create a constructive, 428. See Fraud; Fraudulent Convey- ance, implied, 413, 419^23. indemnification of cestui by trustee, 448. of trustee by cestui, 455. Indirect, 413-428. In favor of vendee under contract to convey, 18. See Contract to Con- vey Land ; Equitable Conversion ; Specific Performance, interest chargeable against trustee, 447. Investment of, funds by trustee, 450, 451. joint acts of trustees, 453. joint grantees, one of w^hom pays more than his share, raises an implied, 423. joint powers In trustee, 1048. joint receipts by tnistees, 453. joint sales by trustees, 453. jurisdiction of. In equity, though land Is outside state, 953. lease renewed in his own name by trustee a constructive, 426. literary, 464. local jurisdiction over, 465. merger of, in legal title, 431, 671. modes of creating, 407-^28. nature of, 405, 407. notice to purchaser of, direct or constructive, 435. See Notice, origin of, 405, 407. parol evidence, to establish Indirect, 413, 414, 416, 421, 422, 425. to rebut indirect, 421, 422. partnership realty an instance of implied, 422. power coupled with, or in nature of, 1046. iSee Power. creates vested or contingent interest In members of class, when, 1046. power not exercised, resulting, when, 1052. precatory, 462. purchase of subject of, by trustee, 456-459. See Purchaser, purchaser of subject of, must be complete purchaser, 435. See Complete Purchaser, purchaser with notice of, himself a trustee, 434. purchaser without notice of, not bound by, 429, 433-435. record of deed on Its face in fraud of, as notice, 1078. religious, 464. resale of subject of, bought by trustee, at upset price, 458. INDEX. 949 [The figures refer to sections.] ^.'RUST— Continued, resulting, 413^19. I'ules governing, in general, 429-432. sale of, under order of court, 446. seisin and its principles not applicable to, 429. spendthrift, 430, 526. statute of limitations applied to, 832, S3S. subject to cestul's debts and charges, 430. to trustee's debts, when, 444. substitution of trustee, 446, 461. suit in equity to substitute trustee, 461. termination of, extinguishes power of sale in trustee, 1058. trustee dealing with subject of, for his own benefit, creates a construct- ive, 427, 447, 456. trustee paying for land with funds of, creates a constructive, 425. trustee purchasing outstanding claims creates a constructive, 427. trustee responsible as a bailee, 443, 449. trustee's compensation, 454. trustee's duties, 443. trustee's sale under deed of trust, 452. See Deed of Trust, trustee's security for defeft-ed payments, 451. trustee to defend title, 433. trustee to execute conveyances as directed by cestui, 433. use declared upon possession of a term of years a direct, 412. use to legal grantee, 409. use unexecuted a direct, 407. use upon a use a direct, 410. vague and indefinite, void, 463, 464. vendor's lien a resulting, 418. See Vendor's Lien. TRUSTEE, see Deed of Trust; Trust, adverse possession as between, and cestui, 832, 838. after-acquired title does not pass to, by estoppel, 915, 1066. compensation of, 454. creditor of, cannot subject trust estate, 425. dealing with trust subject for his own benefit a constructive, 881. one Intended to take only as a, cannot talie beneficially under a will, 1014. pow^er coupled with a trust In, may be exercised by successor or co-trustee, 1047, 1048. power in joint, exercisable severally when, 1048. power of sale in, 1033. implied, when, 1044. terminated by cessation of trust, 1058. to divide proceeds Is a power coupled with a trust, 1046, to pay debts. Is a power coupled with a trust, 1046. not exercisable If there are no debts to be paid, 1038. statutory power of sale In, under deed of trust, 1040. to preserve contingent remainder, 637. See Contingent Remainder, under disabilities, doubts, etc., 440. vacancy in trusteeship, how filled, 461. widow of, not entitled to dower, 244. See Dower, words of limitation in deed to, 147. See Words of Limitation. 950 INDEX. [Th9 figures refer to sections.] TURBARY, common of, 69, 70. See Common ; Profit k Prendre. TURNPIKE, a franchise, 63-65. u UNBORN PERSON, see Limitation, estate tail created by grant to, with remainder to child of, 171. See Fee Tail, executory limitation to, when valid, 712. See Executory Limitation, power conferred on life tenant who is, void, 1042. remainder to, 604, 636. See Remainder, to children, heirs, etc., of, void, 646. UNCERTAINTY, of trust, 463, 464. See Trust ; Trustee. UNDERGROUND WATEUS, 58. see Water Rights. UNDUE INFLUENCE, 1008. see Fraud ; Will of Land. UNINCORPORATED ASSOCIATION, deed to, when invalid, 464, 871. devise to, when invalid, 464. UNLAWFUL DETAINER, see Action ; Ejectment. UNNAVIGABLE WATERS, see Private Waters. UPSET PRICE, 458. see Trust ; Trustee. USE, see Statute of Uses; Trust, active, not executed, 405, 411. appointment to future, 399, 400, 1041. See Appointment; Power. assignable by deed or will, 398. bargain and sale creates, 401, 996-1000. See Bargain and Sale, cestui que, must be within consideration, 998. needful to operation of statute of uses, 403. consideration sufficient to raise, 997-999. converted into legal estate by statute of uses, 399-401. covenant to stand seised creates. 401, 996-1000. created by actual transmutation of possession, 996. without transmutation, 401, 996-1000. curtesy in, 398. declared upon possession of term for years, not executed by statute of uses, 412. descendible to heirs, 398. devisable, 398. dower not allowed in, 398. feoffment to, 400, 401. flexibility of, 399. INDEX. 951 [The figures refer to sections.] USE— Continued, future freehold by way of, 399. history and origin, 397. in esse necessary, 404. liability of, to debts, 398. to feudal burdens, 398. livery of seisin not needed to transfer, 398, 399. love and affection, a consideration to support, 400. nature of, 397. person seised to, 402. power of appointment to, 399, 400. of revocation of, 399, 400, 1043. taking effect as a, 1041. See Power, revocation of, 399, 400, 1043. seisin to serve, 402. shifting, 399. springing, 399. statute of uses executes, 399. 400, 998. See Statute of Uses, iipon a. not executed, 410, 998. valuable consideration to support bargain and sale, 400, 401, 997-999. words of limitation to create 'inheritance in, 400. See Words of Limita- tion. USEE, ADVERSE, see Prescription. ISES, STATUTE OF, see Statute of Uses. VAGUE DESCRIPTION, see Description. VALUABLE CONSIDERATION, see Consideration. VAULT, in church for burial, 121. VENDEE. see Contract to Convey Land ; Conveyance ; Purchaser ; Sale ; Statute of Frauds ; Trust ; Vendor, adverse possession of, as against vendor, 832, 838. assignee of, bound by judgment against, when, 420. chattels annexed to la,nd pass with land to, 34. See Fixture, dower of widow of, as against vendor's widow, 250, 251. See Dower. Interest of, becomes land by equitable conversion, 18. See Equitable Con- version, lien of, for purchase money partly paid, 588. title of, under contract of sale, see Contract to Convey Land; Specific Performance. VENDOR, see CJontract to Convey Land ; Conveyance ; Sale ; Statute of Frauds ; Trust; Vendee, authority of real estate agent extends to bring, in touch with vendee, 888. See Real Estate Agent. 952 INDEX. [The figures refer to sections.] VENDOR — Continued, dower of widow of, as against vendee's widow, 250, 251. in land contracted to be sold, 244. See Dower, interest of, in land sold, becomes personalty by equitable conversion, 18. See Equitable Conversion, lien of, for unpaid purchase money, see Vendor's Lien, reservation in, of title to chattels annexed to land, 25. See Fixture. of title to land sold, 418. rights of, to unpaid purchase money as against dower of vendee's wid- ow, 259. See Dower; Priority. VENDOR'S LIEN, an equitable lien, 5SG. binds land, 586. dower in land subject to, 245. in surplus after payment of, 262-263. See Dower, express, 418, 586. implied, 418, 586. a resulting trust, 418. doctrine rejected or abolished in some states, 418, 586. presumption of satisfaction of, after 20 years, 556. waiver of, 587. VERBAL, see Parol. VESTED INTEREST, see Executory Limitation ; Remainder ; Reversion ; Vested Remain- der, after-acquired title by estoppel prevented by, in lessor, 1063. power coupled with trust, in default of appointment, creates, in class, when, 1046. power released to one holding, 1061. waste sued for by one holding, 393. VESTED REMAINDER, see Limitation ; Remainder ; Vested Interest, acceleration of, 638. contingent remainder may become, 597. while others earlier in order remain contingent, 652. See Contingent Remainder, creditor may subject to debts, 659. See Creditor, criterion to ascertain, 594, 596. curtesy barred by interpolated, 220, 221. defeasible upon condition subsequent, 600. defeated If preceding estate is void in its creation, 593. definition of, 596. dower barred by interpolated, 249, 252, 2.53, 276. limitations by way of, see Limitation, nature of, .596. subsequent destruction of particular estate does not affect, 636. to a certain person, 596, 606, 608. to a class of persons, 606. to designated heirs of living person, 60S. to surviving children, etc., 600. transfer of, 657. INDEX. 953 [The figures refer to sections.] VESTED REMAINDER— Continued, where there is a practical certainty that condition precedent will occur dnriug particular estate, 603. words construed as creating, rather than contingent, if possible, 600, 601. as importing time of enjoyment and not contingency, 601. VIEW, easement of, 118. See Easement. VILLEINAGE, tenure in, 6. VILLEIN SOCAGE, tenure in, 6. VIVUJI VADIUM, 537. VOLUNTARY CONVEYANCE, as between the parties, 938. as evidence of fraud, 952. as to existing creditors, 952. as to subsequent creditors, 952. recital of payment of consideration In, 939. resulting trust created by, when, 415. VOLUNTARY WASTE, 380-385. see Waste. w WAIVER, of forfeiture for breach of condition, 498. of notice to terminate estate from year to year, 349. of performance of condition, 496, 497. of vendor's lien, 587. WARDSHIP, incident to feudal tenure, 10. WARRANTY, ANCIENT, collateral, 897. commencing by disseisin, 897. compensation for breach of, 897, 898. covenants supplying place of, 90f>. creation of, 897. distinguished from personal covenants, 897. effect of, upon warrantor, 897-899. upon warrantor's heirs, 897-899. estoppel by, of waxrantor's claims, 897, 899. express, 897. feoffment containing, transfers after-acquired title by estoppel, 1034. implied, 307, 781, 897, 969. lineal, 897. rebuttal by, of claims of warrantor or his heirs, 897, 899. WARRANTY, COVENANT OF, see Covenant, broken by eviction, 912. contrasted with covenant against Incumbrances. 912. 954 INDEX. [The figures refer to sections.] WARRANTY, COVEiNANT OF— Continued, ^ eviction, actual or constructive, 912. distinguislied from a trespass or disseisin, 912. See Eviction, general, 912. liability of remote grantors upon, 913. measure of recovery upon, 914. operation of, by way of estoppel, 915, 1066. See Estoppel, special, 911. WASTE, action for, survives, 393. actions for, 395, 396. assumpsit for, 396. , ■ by coparceners, 393, 772. by joint tenants, 393, 731. by life tenant, 199, 390, 391. by mob, 386. by stranger, 386. by tenant at will, 340, 342, '391. by tenant by curtesy, 390, 391. by tenant cutting more estovers than necessary, 39. by tenant for years, 332, 356, 370, 391. by tenant in common, 393, 757. by tenant in dower, 390, 391. by tenant in fee simple, wben, 390. by tenant in tall after possibility of issue extinct, not punishable, 180. by tenant in tall, not punishable, 179, 390. by tenant removing fixtures, 35-36. See Fixtures. changing course of husbandry as, 383. covenant lies for, when, 396. covenant not to commit, 396. damages for, 392. in equity, 394. definition of, 379. destruction by act of God, when, 379. equitable, 387-389, 394. equitable owner may complain of. 389. 393, 394. estrepement, as a remedy for, 394. fee simple owner may complain of, when, 393, 395. fire injuries, when, 379, 381. forfeiture for, '392. heir may complain of, when, 393. in agricultural land, 383. in buildings, 381. in equitable estates, 389, 393, 394. in fixtures, 35-36, 385. injunction lies for, 394. in mines, quarries, etc., 384. See Minerals ; Mine, in ornamental and shade trees, 387, 394 in timber, 382, 387. life tenant may complain of, 393, 395. malicious, by tenant dispunishable for, 391, 394. nature of, 379. negligent, 379, 386, 391. INDEX. 955 [The figures refer to sectiona.] WASTE— Continued, pending suit, 394. permissive, 379, 386, 391. punishment for, 392. quasi, 393, 395. remainderman may complain of, when, 393. repairs by tenant to avoid, 379, 386. reversioner may complain of, 393. tenant for years may complain of, 393, 395. tenants punishable for, 390. treble damages for, when, 392, 395. trespass on case for, 393, 395. voluntary, 380-385. terminates estate at will, 391. who entitled to complain of, 393. writ of, 393-395. wajste land, adverse possession of, 832. dower in, 266. WATER, description of, in conveyance, 17. rights, see Water Rights. title to land formed by action of, 811-816. 'See Accretion. WATER RIGHTS, see Easement ; Public Waters ; Surface Water, action for breach of, 53-55, 853. appropriation of water by upper proprietor, 53, 59, 119. as corporeal rights, 50-59. as easements, 92, 119. See Easement ; Surface Water, assignment of, to others not riparian owners, 53. created by transfer of quasi dominant tract, 97. of quasi servient tract, 100. diversion of stream, 53. excessive appropriation of water by lower proprietor not a prescriptive right, 853. extend only to riparian proprietors, 53. flow of surface water not a prescriptive right, 8.53. general nature of, in running water, 51, 58, 59. in surface water, 92, 119. See Surface Water, mill acts, 55. obstruction of flow by lower proprietor, 55. overflowing streams, 55. percolating waters, 59, 853. pollution of water, 53, 54,, 58, 59, 96. private waters, 57. public waters, 56. See Public Waters, subterranean streams, 58. wharf rights, 56. WAX, an easement, 110. See Basement, arising by estoppel, 102. by grant, 93, 95. 956 INDEX. [The figures refer to sections.] WAX— Continued, by necessity, 96, 99. by prescription, 847-849. See Prescription, by reservation, 94, 98, 99. See Reservation, cart, 111. common. 111. * drive, or drift, 111. extent of, measured by express terms of grant, 93. measured by needs of dominant tract, 87. wlien arising by prescription, 847. extinguishment of, 103-109. foot, 111. horse, 111. interruption of, by owner of land affects prescriptive title to, 848, 849. over adjacent land, when, 112. private. 111, 112. public. 111, 112. See Highway, rent cannot issue out of a, 76. repair of, 112. vendor describing land as bounded on street estopped to deny right of, 102. WELL, cutting off percolating water from, 59. pollution of, 59. WELSH MORTGAGE, 537, 550. WIFE, see Dower ; Married Woman. love for, suflScient consideration to support covenant to stand seised, 999. WILD LAND, adverse possession of, 832. dower in, 266. WILD'S CASE, RULE IN, 172. WILL, ESTATE AT, see Estate at Will. WILL OF LAND, see Devise. actual disposition of property In, necessary, 1014. after-acquired land included in, 1012. ambulatory, 1002. attesting witnesses to, 1017, 1018. See Attesting Witness to Will, bond may be good as a, 1014. by local custom, 6, 1003. canceling of, revokes, 1024. capacity to be devisee, 1009, 1010. capacity to execute, 1004, 1008. competency of witnesses to, 1018. confirmation of infant's, 1007. consists of all testamentary papers, not inconsistent with last written, 1014. construction of, 184, 1032. See Limitation, deaf and dumb person as maker of, 1005. INDEX. 957 [The figures refer to sections.] WILL OF LAND— Continued, deed taking effect as, 1014. description of property devised in, 1012. destruction of, revokes, when, 1024. disclaimer by devisee under, 1011. disinheritance of relatives, not proof of testamentary incapacity, 1006. distinguished from declaration revoking, 1023. eccentricity not proof of incapacity, 1005. fee tail, created in, by implication, 171-173. not alienable by, 177, 178. force affects validity of, 1008. formalities of, 1013-1018. fraud affects validity of, 1008, 1014. fructus industriales pass under, 41. fructus naturales pass under, 38. habitual drunkenness affects capacity to make, 1005. holograph, 1016. lack of attesting vi^itnesses does not defeat, 1016. imbecility affects capacity to make, 1005. in exercise of power, 1049. defectively executed, aided in equity, 1054. iSee Power, infancy of testator as affecting capacity, 1007. insanity affects capacity to make, 1005, 1006. lapse of, 1030, 1031. See Lapsed Devise, letter taking effect as, 1014. nature of, 1002. origin of, 1003. power conferred by, see Power. to be executed by deed, may be, when, 1049, 1054. to be executed by, may be by deed, when, 1049. presumption of revocation from loss or mutilation of, 1024. probate of, 1032. property devisable by, 1012. publication of, 1028, 1029. registry of, 1032, 1071. republication of, 1028, 1029. residuary devise in, 1031. revival of revoked, 1028, 1029. revocation of, 1002, 1019-1029. dependent relative, 1021. express, by cancellation, etc., 1024. by declaration in form of, 1023. by subsequent will or codicil, 1022. Implied, from subsequent alienation, 1020, 1025. from subsequent birth of children, 1027. from subsequent marriage, 1026. parol evidence to show intent to refoke, 1021. revocation of revoking act, 1029. seal not required for, 1015. signature of attesting witnesses to, 1017. at end of paper, 1017. signature of testator to, 1015-1017. in presence of attesting witnesses, 1017. 938 INDEX. [The figures refer to sections.] WILX OF LAND— Continued, intended to sliow finality of Intent, 1015, 1016. must be intended as such, 1015. spealvs as of testator's deatli, 1012. tacking of possession by devisee of one in adverse possession, 828. testator's mark a sufficient signature, 1015. to be qualified by verbal instructions only to prevent fraud, 1014. under burgage and gavelkind tenure, 6. use passes under, at common law, 398. wbole, to be in writing, 1014, 1016. words of limitation not essential in, 143. WILLS, STATUTE OF, 1003, 1004, 1013. see Statute of Wills; Will. WITNESS, see Attesting Witness to Deed ; Attesting Witness to WiU ; Eridence ; Will of Land, authentication of writing for registry by, 926, 1074, 1079. called to prove will distinguished from attesting, 1017. to deed, 924, 926. to will, 1017, 1018. See Attesting Witness to WUl. in exercise of i>ower, 1049, 1054. WORDS OP LIMITATION, any words showing intent suffice in will, 143. children as, 170-172. contrasted with words of purchase, 140-149. descendants as, 170. heirs as, 140, 141, 143. "heirs" as word of purchase, 141. heirs includes all future generations, 141. heirs of body as, 169. implied in will, 171-173. In common-law conveyances, 139, 140, 169, 184. in deed, of confirmation, 988. referring to another deed containing, 145. to corporation, 146. to trustee, 147. in exception, 144. in quitclaim deed, 148. in release by enlargement, 148, 976. passing an estate, 148, 975. in reservations, 144, 149. issue as, 170-172. rule in Wild's Case, 172. to create estates of inheritance, 139-149. fee tail, 169-173. inheritance in use, 400. WRITING, acknowledgment of, for registry. See Acknowledgment; Registry. attesting witness to, see Attesting Witness to Deed; Attesting Witness to Will, license need not be in, 124. See License, parol evidence to vary, 536, 998. See Evidence; Parol. INDEX. 959 [Tlie figures refer to sections.] WRITI]S*G— Continued, registry of, see Recordation; Registry. signature to, see Signature. under seal, see Conveyance ; Deed ; Seal ; Statute of Frauds. win to be in, 1014. See Will of Land. WRIT OF DOWER UNDB NIHIL HABBT, 311. see Dower. WRIT OF ELEGIT, 154. WRIT OP ESTREPEMENT, 394. WRIT OF RIGHT, 311. WRIT OF RIGHT OF DOWER, 311. see Dower. WRIT OF WASTE, 395. see Waste. triBT PUBLISHINS CO., fBIHTBBB, ST. PAUL, MrHH.