Gornell Gaw Schonl Hibrary ‘ornell University Libra: Tim A CONCISE SUMMARY OF THE PRINCIPLES AND DECISIONS RELATING TO REALTY PRACTICE, IN PENNSYLVANIA AND ADJOINING STATES. BY f Pbk OF THE PITTSBURG BAR. 1899: PITTSBURG, PENNA. aes sk ys ae Entered according to Act of Congress, 1808, By J. T. Donty, Pirrspure, Pa. pe SS «Be Mication.... TO THE JUDGES AND ATTORNEYS OF THIS COMMONWEALTH WHO HAVE BY ERUDITION ADDED LUSTRE TO THE PROFESSION, WHO HAVE ENTERTAINED NO RESPECT OF PERSONS IN JUDGMENT, USED NOT FALSEHOOD, NOR DELAYED ANY CAUSE FOR LUCRE OR MALICE, AND HAVE THUS MAGNIFIED THEIR OFFICE ’ AND MADE IT HONORABLE, IS THIS WORK DEDICATED. PREFACE, One object in preparing this work was to embody and collect into comparatively small compass, a wide range of primary and practicable principles of realty practice, to lop off many of the less important branches which, although important, can be dispensed with in this work content with calling the attention of the stu- dent, in few words, to many indispensible principles of the subject, which, discussed minutely, would require vol- umes. Subjects that are here set out in a single chapter, for example, the chapter on Blackstone’s “Things Real” directs the attention of the learner of law directly to the cardinal points of the Second Book of his commentaries —to the trunk and main branches of the tree that has borne such luscious legal fruit for the last century. The collection of the statutes of Pennsylvania from the adoption of the Constitution of 1874 to the session of 1899, inclusive, though severely abridged as to the cir- cumlocution used in the original acts, retains the essence of these acts, and in the main, the verbatim text in about one-half the volume of the acts themselves. The chapter on Haamination of Titles preserves the same epitomized manner of pointing out requisites for a carefully prepared abstract of title to lands and _ tene-. viii ments, and so with the other subjects herein briefly dis- cussed. Because “of the making of many books there is no end, and much study is a weariness to the flesh,” it be- hooves the writer, as a rule, to summarize the principles of law rather than enlarge upon them. A book that in a few words imparts to the profession the gist of the act or decision and points as an index to the authority or case where a full discussion of the point sought for may be found, is of more value to the lawyer than vol- umes to be searched through for the real points of law, which but a few of well arranged pages may contain. In this day of business and bustle, when many cases in our courts are disposed of in a day, the attorney and much less the judge will not, in ordinary cases, consume the time to read or hear read a whole discourse or opinion on finely spun theories of law. Our judges and lawyers grasp more and more at the real and intrinsic points of a case rather than to gather up all the odds and ends thereof, which latter method tends often to confuse the mind rather than assist it to arrive at the ends of justice. It is not without expression of gratitude for the valuable aid of the learned authors herein so extensively quoted . and also the valuable assistance rendered by members of the bar in reading of proofs and correcting the manu- script that this volume is presented to the profession and students of law. While with thought and considerable labor, this treatise has been prepared it is with a con- ix sciousness that mistakes and imperfections will be found herein, a work which cannot, of course, do justice to so large a general subject as that concerning Realty Prac- tice, for the discourses and especially the ramifications into which the main channels diverge. “If we speak of them, they cannot be numbered; if we count them, they are as the sand for multitude.” Albeit, this book may still serve as a beacon light, in its humble way, to point some learner of the law to a shorter, if not better, route to a knowledge of these branches. If this be accom- plished it will, in a great measure, be a reward for the toil that led us up to this end. PitrspurG, JULY 15, 1899. SUBJECTS TREATED IN THIS WORK. Chap. L. Chap. I. Chap. III. Chap. IV. Chap. Vv. Chap. VI. Chap. VIL Chap. VIII. Chap. IX. Chap. X. Chap. XI. Ademption, Advancements, Assignees, Boroughs and Corporations. Easements, subterraneous and lateral sup- port, light and air, escheats, execution and forestry reservations. Ejectment, Acts concerning, common use of action, principles, pleadings, etc. Ground rents, Principles discussed under various decisions. Incidents attending the transfer of realty. International law governing realty prac- tice. Judgments, Scire Facias to revive, Mar- ried Women’s Property act, etc. Mechanic’s Liens, Before and After the Act of 1836. Mortgages in Pennsylvania and adjoining states. Notaries Public. Orphans’ Court, Separate Orphans’ Court; Acts relating thereto. Chap. XII. Partition of Lands, by act of the parties, and by legal proceedings. Chap. XIII. Chap. XIV. Chap. XV. Chap. XVI Chap. XVII. Chap. X VIII. Chap. XIX. Chap. XX. Chap. XXI. xii Recording Acts. Public use of Private Property. Things Real, Sorts or Kinds, Estates con- sidered in a three fold view. Titles, Examination of, Abstracts, inci- dents thereto, etc. Trusts and trustees. Waters Navigable, Alluvion, Shores, Ports, Harbors, Eminent Domain. Wills. Shelly’s Case, Rule in. Actual Practice. INTRODUCTORY CHAPTER. Realty, or real estate practice, is the manner of con- ducting suits or cases concerning landed property. In the early history of the world, when the Creator had en- dowed man with supremacy over the earth and caused it to be fruitful and long before the Christian era, even at the time when there was “strife between Abraham’s herdmen” and those of Lot, disputes were engendered concerning the possession of lands and the rights appur- tenant thereto; when the different continents were but thinly inhabited, large rivers, lakes, seas and the ocean, the Almighty’s great land marks, separated and often kept family and family, tribe and tribe, state and state, from disputes and collision, But when cities were built, and states became populous, artificial monuments, boun- daries and limits were established for smaller subdivi- sions demarking not only the land surface, but as well the minerals under it; and not alone were the boundaries of real estate the occasion of dispute, but the right of the citizen to take possession of realty, his right to hold the same when in possession, if the right existed, when did it acerue? from what source, and how long could it le- gally continue? These, and many other questions requir. xiv ing the best skill and judgment of the jurist were con- stantly being raised, and hence in the remotest period of English jurisprudence, rules concerning the descent and purchase of real property, were formulated as shown by the reports of the decisions of the courts ‘construing these rules, till in our day there comes down to us a sys- tem of laws well defined fraught with forensic discussion the adjudication of which though not without those de- fects so common to human attainments, yet replete with the learning and wisdom of the ages bestowed upon these later generations, like the counsel of a father ripe in vears and ripened by experience. In preparing this work, it has been our aim to em- body in it the principles of realty practice now most com- monly brought into requisition by the profession and to treat concerning those forms or kinds of actions most fre- quently used in practice ainong those notably are the actions of ejectment, Orphans’ Court proceedings, me- chanics’ liens, partition proceedings, the law relating to things real, judgments, mortgages, wills and statutory provisions relating to the subjects embraced in this work; also important and late decisions of our Courts of Appellate Jurisdiction. The principles discussed in the other chapters of the book not being directly but indirectly connected with the subject are indispensible to a thorough understanding of the laws of realty practice. xV To meet in some measure the wants of our brothers in the profession, and especially students of law, as de- duced from above suggestions, we have selected a few of the divisions common to the subject set forth in the title of this work, and treated them in as few words as prac- ticable in order to retain the main points intended to be discussed, recalling to the memory and notice even of the well read lawyer, acts and decisions by him neglected passed by, sometimes forgotten, or peradventure yet un- learned, desiring that the critic dissenting from our opinions and the way of presenting quoted authorities “may at least respect the sincerity with which they are cherished and avowed.” *INDEX—ALPHABETICAL. BSPRACT Of tiles aks age ieaiecatiiesiceoneneantens ee aa Abstract, plan of... Accouritants, liens Of. .cccsscssecssececessetecvsersecrsawenes és Accountants, amount due from, lien municipal.............:0008 §42 Acknowledgments, before what authority taken............ eee 458 ACKnOwled gnients s,s One trade or profession, afterwards called ‘ winiversities,’ ’ whole out of many—or vollegia, ‘‘ gathered together ’’— also were soon established ecclesiastical corporations ; but by the laws of England there was another form introduced called corporations sole. These institutions, for the con- yenience and welfare of religious and secular business in- terests, have been handed down to us almost free from the mutations of the centuries that have come and gone since they were first formulated and incorporated in the common law. (Blackstone’s Com., Bk. 1, 468.) We here briefly mention corporations especially as affecting the acquisition of realty. First. As to what RELATING TO REALTY PRACTICE. 11 Corporations. they were in Pennsylvania before the adoption of the Constitution of 1790. Second. From that time until the adoption of our present Constitution of 1874. The first of these divisions is only adverted to in this chapter. Before the ‘‘Revolution’’ of 1776, laws regarding corporations were confined mostly to those statutes and common law rules derived from Great Britain. At common law, and by the older statutes, there were several forms of corporations which, at least by name, are creatures of the past, and exist, as to our State, only in history. But the one general feature incident to all corporations aggregate is unity of pur- pose. Such body, alike a ‘‘State,’’ consists in a plurality of individuals united for their safety and convenience, and intending to act together as one man. ‘‘ What is a State but a large corporation?’ or a nation or union of States but a great body politic, with its magna charta or constitution for its charter? a system borrowed from the Roman laws and those of England, and which at length came into use in our several States. (See Wharton’s Dic. Societies; also Act 1781, first vol., Bioren, 250.) The statute of 1791 provides that when a number of citizens of Pennsylvania are associated or intend to associate together for literary, charitable or religious purposes, ‘‘it shall be lawful for them to prepare an instrument in writing specifying the objects, articles, conditions, name 12 PRINCIPLES AND DECISIONS Corporations. and style or title under which they mean to associate, present the same to the Attorney General,’? who is required to examine said instrument and transmit it, with his opinion, to the State Supreme Court; and said Court, after examination of the articles, conditions, etc., is, in turn, to transmit the same to the Gov- ernor, and if certified to be lawful by said Court and the Attorney General, then the Governor shall cause said instrument to be enrolled, after which time said cor- poration is empowered to act in said capacity. By the early statutes of Pennsylvania, corporations were not specially empowered to hold lands and tenements, but by the statute of April Sth, 1833, (P. L. 288,) it was provided ‘‘that corporations and their successors respectively shall be able and capable in law according to the terms and conditions of the instrument upon which the said corporations respectively are, as aforesaid, formed and established to take, receive and hold all manner of lands, tenements, rents, annuities, franchises and hereditaments ;’’ and the fourth section of said Act provides ‘‘that the corporations established by this Act (1791) and their successors shall be capable in law ac- cording to the terms and conditions of the instrument upon which they are formed of taking and holding all manner of lands, tenements, rents, annuities, franchises and hereditaments, to be employed according to condi- tions of the same instrument upon which they were RELATING TO REALTY PRACTICE. 13 Corporations. formed, provided that the yearly income from same shall not exceed five hundred (500) pounds.’’ Also the Act of February 20th, 1854, (P. L. 90), made it lawful for any association of citizens authorized to obtain a charter from Court to hold real estate in their corporate capacity, but not exceeding a yearly in- come of five thousand (5,000) dollars. By Act of May 7th, 1855, (P. L. 477), corporations established under the Act of 1791, and its several supplements, were empow- ered to take by purchase or otherwise, and hold all manner of lands and tenements in the same manner and subject to the same limitations as to quantity and value as provided by law. As one object in creating corporations was perpetuity or continued succession and permanency, it was almost a necessity that they should also be empowered to take and hold real estate, and as the primary moving object was to establish perma- nent religious, charitable and social institutions among men, and these could not flourish, and in some in- stances hardly exist, without the acquisition and holding of lands, our law-making power at a comparatively early date thus enlarged the powers of bodies _ politic, enabling them, in a short period of our history as a people, to assume the mammoth proportions that they now enjoy of extent and power. How far these franchises are abused and fall short of their original design is not to be discussed here. Suffice it 14 PRINCIPLES AND DECISIONS Corporations. to say that millions of acres of land, mines, corporeal and incorporeal hereditaments, the value of which is almost incalculable, are owned by large syndicates, whose power and influence encompass the land and the sea, and their standards are raised in every nation, state and clime. The Act of 1840-41, (P. L. 5), gave Courts of Com- mon Pleas power to grant charters for charitable and religious purposes, if not injurious to society, on the proper presentment of articies and conditions thereof ; and said Court shall direct notice by publication, ete., to be given as required by law, and at the next term decree said association a corporation on recording of said charter under the name, style and title set forth in said instrument. By Act of April 380, 1544, P. L., 532, it is enacted that, ‘‘In all cases where the real estate of a corporation shall be sold at sheriff’s sale for payment of bona fide debts, purchasers shall receive their title discharged from right of forfeiture to the Commonwealth by reason of misnomer, limitation or defect of power in said corporation to pur- chase and hold said lands, and the purchase-money shall be distributed according to priority among the hen creditors, as in other cases.’’ ‘No corporation other than such as shall have been incorporated under the laws of this State, nor any for- eign government, potentate or power, shall hereafter acquire RELATING TO REALTY PRACTICE. 15 Corporations. and hold any real estate within this commonwealth directly, in the corporate name or by or through any trustee or other device whatsoever, unless specially authorized to hold such property, by the laws of this commonwealth ; prorided, That the residence without the limit of this state of a portion of the members of any religious, literary, charitable or beneficial society or assucia- tion otherwise qualified to hold real or personal estate within this state, shall not incapacitate such society or association from taking and holding such property, not exceeding the value limited by law.’’? Act of 26th April, 1855, P. L. 328, see. 5. The act of 21st April, 1858, P. L. 412, conferred upon insurance and trust companies, saving funds and building associations incorporated under or by any law of this commonwealth, the power to purchase, hold, sell, and convey ground rents; and making effectual sales made prior to said act. By the act of 9th April 1856, P. L. 295, the Courts of Common Pleas shall have power to dissolve a corporation on petition of said corporation under its seal. If said Court is satisfied that said prayer may be granted without prejudice to the public welfare or the interest of the corporators ; provided, That said surrender of power shall not in any wise remove any limitation or restriction in such charters; and that accounts of such dissolved company shall be settled and approved by the Court and dividends made among corporations as in assignees’ and 16 PRINCIPLES AND DECISIONS Corporations. trustees’ accounts, and no property devoted to religious, literary or charitable uses shall be diverted from the objects for which they were or are granted, provided also that a copy of the decree shall be filed and recorded in the office of the Secretary of the Commonwealth before said decree shall go into effect. This act (1856) does not restrict the power of any particular class of corporations. (Conmonwealth v. Slifer 58 Pa. 71) The Court has power to decree the dissolution of corporations other than those incorporated by Courts (Credit Mobilier 10 Phila, 2—10 L. . Bar 37). Without such decree the property of a cor- poration cannot be divided among its members (Riddle v. Harmony Fire Ins. Co., 8 Phila. 310). Where a cor- poration shall be in asuit, act of 1817, P. L. 6 Smiths Laws 439, before a Court or magistrate, all proceedings, except by said act, shall be the same as in similar cases and rules of reference and all notices may be served on the president or other principal officer, or cashier or secretary or chief clerk of such corporation (Bk. of Pgh. v. Whitehead 10 W. 402.) The Act of 1836, P. L. 577, Service of sum- mons on corporations aggregate, except townships, is sufficient if made upon the president, cashier, treasurer, secretary, or chief clerk, but must be served in the place in which the corporation is located (Brobst v. Bk. 5 Woand 8.379.) A public municipal corporation can only be sued in the Courts of the County where it is situated, by Act of 18386, (P. L. 579.) In actions for trespass or injury (Lehigh RELATING TO REALTY PRACTICE. 17 Corporations. Co. v. Kleckner & W. and S. 181) by a corporation, if its officers reside in the county in which the injury was committed, the summons may be served on any officer or agent of the corporation at any office or place of busi- ness of the corporation within the county, or if there be no such office or place of business, it shall be lawful to serve the summons upon the president or other prin- cipal officer, cashier, treasurer, secretary, or chief clerk, in any county or place where they may be found (Combs v. Bk. Bright 68). See Purdon, 2 Vol., p. 355. Under the Constitution of Pennsylvania adopted at Philadelphia, November 38, 1873, a radical change was wrought in regard to the creation and regulation of corporations. In article III of the same: ‘‘The General Assembly shall not pass any local or special law incor- porating cities, towns or villages, or changing their charters, creating corporations, or amending, renewing or extending the charters thereof.’’ Pursuant to, and in accordance with, said constitution the legislature passed the general act concerning corpora- tions, approved 22nd April, 1874, viz: That corporations may be formed under the provisions of said act by an association of five or more persons for the purposes and in the manner designated by said act with powers inter alia as follows: First. To have succession by a corporate name. Second. To maintain and defend judicial proceedings. 18 PRINCIPLES AND DECISIONS Corporations. Third. To have a common seal. Fourth. To hold, purchase and transfer realty, ete. Fifth, To appoint and remove subordinate officers and agents and allow them compensation. Sixth, To make by-laws not inconsistent with law for the management of its property and affairs, transfers of stock, etc. The purposes for which corporations are formed shall be of two classes, corporations not for profit and those for profit. The most important perhaps of the former being those for the support of religious worship, and for the support of benevolent, charitable, educational or missionary undertakings, and among the second class notably are those of building and loan associations, life insurance, bridge companies, telegraphic lines, ice and water companies, gas companies, associations for the purchase of real estate, etc. Sec. 3 of this act provides that the charter of an intended corporation must be sub- scribed by five or more persons, three at least, citizens of Pennsylvania; the purpose, business, etc., for which the same is formed; by said act as the requisites will more fully and minutely appear by reference to said act, and in section 385 of said statute it is provided that the capital stock of corporations for the purchase and sale of real estate shall consist in the aggregate at no time of more than Two Hundred Thousand Dollars and be divided into shares of fifty ($50) dollars each; the said cor- RELATING TO REALTY PRACTICE. 19 Corporations. poration shall have the right to purchase real estate and may imprave and sell the same in such parts and parcels and on such terms as to time of payment as they may determine ; provided, That the quantity of real estate held at any one time in cities and _ boroughs, shall not exceed fifty acres and outside thereof shall not exceed three thousand acres.’’ This class of corporations under the act of (1874 P. L. 73) granted as they are by the governor has lessened the work and volume of legislation, and it may be also the fraudulent mani- pulations of corporate schemes by which unjust. bills were hurried through the committees and passed without a full knowledge of their real import. Act of 13 June, 1874, (P. L. 283,) Provides that in cases of damages assessed against a corporation or individuals vested with the privilege of taking private property for public use, whether such assessment was by viewers or otherwise than upon trial in Court and an appeal is not provided for by pre-existing laws, an appeal may be taken by either party to the Court of Common Pleas within 80 days from the time damages are ascertained or after filing report thereof in Court and not afterward. The appeal is to be signed by the parties taking the same or their agent or attorney with affidavit that game is not taken for delay but that injustice has been done. Act of April 17, 1876, P. L. 41, Provides that all conveyance of lands made by Savings Fund and Building & Loan associations after the term for which it was 20 PRINCIPLES AND DECISIONS Corporations. incorporated shall have expired, shall be as good and effectual, for passing title to lands, as though executed during the period of its chartered existence. Act 6, June, 1887, p. 350. Where conveyance of real estate is made by an alien, or foreign corporation of this or an other state to a citizen of the United States or to any corporation, chartered in Pennsylvania, author- ized to hold real estate before any inquisition shall have been taken against the real estate so held to escheat the same, such citizen, or corporation, granted as aforesaid, shall hold any real estate and may convey such title and estate indefeasibly as to any right of escheat in this commonwealth, by reason of such realty having been held by an alien or corporation not authorized to hold the same under the laws of this commonwealth. The act 9th June, 1891, P. L. 249, amends the act of 6th June, 1487, P. L. 350, so that the act not only provides that where an alien or foreign corporation has granted real estate to a person or corporation author- ized to take a conveyance, such person or corporation (before escheat) may convey the same indefeasibly, but further provided that where the estate is conveyed to such person or corporation by the officers of a foreign corporation after dissolution or expiration of its charter, still said grantee shall receive an indefeasible title to said realty. Act, 9th June, 1891, P. L. 252. Title to realty RELATING TO REALTY PRACTICE. 21 Corporations. now held by or in trust for a foreign corporation acquired by judicial sale under execution on judgment recovered by said corporation on mortgage binding said lands, is hereby confirmed to the same effect as if said realty had been purchased, held or owned under this act. Amending Act of 1887 so as to read in effect that title to such realty now held in trust for foreign corporations and acquired by judicial sale is hereby confirmed to the same effect as if said realty had been purchased, held or owned under the pro- visions of this act. Act of 8th June, 1891, P. L. 211, makes it lawful for corporations under our state laws or of any State of the United States to hold real estate given or devised to them to be used for religious and charitable purposes but not to relieve such estate from taxation and such estate shall be sold within 5 years from time the right of possession by said corporation accrued. Act of 15th April, 1891, P. L. 15, amends the first section of act of 25th June, 1885, which provides when a corporation is dissolved, owning land, the Court of Common Pleas, on petition of one or more share-holders or corporators and notice to interested parties, may authorize sale of the realty on terms designated by the Court by a trustee who shall give good security for faithful application of the proceeds of said sale; said proceeds to be distributed to creditors of defunct corporation, as the Court . may adjudge entitled and if the corporation had sold but 22 PRINCIPLES AND DECISIONS Corporations. not conveyed said realty, Court may decree specific execution of the contract; but striking out by said amend- ment the proviso in said act of 1885 limiting the pre- senting of said petition to one year and the decree to three years after dissolution except in cases of dissolution before said act of 1885. Act of 18th May, 1893, P. L. 88 amends the act of 26th May, 1887, which provides that the time during which corporations are authorized to hold and convey real estate acquired under execution for, or satisfaction of debts, extending the same to all property heretofore bought and held by said corporation for a further period of five years from expiration of time during which they were then authorized to hold and convey the same sv that said act of 1893 now reads in effect that said act is hereby revived for a still further period of five years from and after the time for which they are authorized to hold the same. Act of 1893, P. L. p. 415. Where an easement on land is acquired under condemnation proceedings by a corpora- tion with the right of eminent domain and the same has been vacated by the corporation for fifteen years, said easement shall be deemed terminated and the original owner, his heirs and assigns, shall hold the title to said lands divested of said easement, the act, however, not to apply to a case where the fee is vested in said corporation, nor to alter the act of 1872 relating to straightened lines of R. R. When persons, natural or artificial, are in possession of lands or tenements, claim- RELATING TO REALTY PRACTICE. 23 Corporations. ing them by any right or title, the same being disputed by another, he may apply by bill or petition to the Court of Common Pleas, where land is situated, setting forth the facts of such claim, and a denial thereof by persons named therein, and the Court shall thereupon grant a rule on persons disputing said title or possession, to show cause why an issue shall not be framed by the Court, between said parties to settle the dispute with 20 days notice of the same and if on hearing of such rule, it appears to the Court that the facts of the petition are true, an issue shall be framed to settle said dispute and a verdict of a jury shall have the same effect as a verdict in ejectment on an equitable title; Where persons denying said title are not residents, the Court may make an order as to service of notice of said rule, etc., on such persons at their residence or place of business, out- side of said County or State where the lands lie, the same as in summons in personal actions. With 20 days notice of such hearing and neglect to appear at the return day with notice, or, not joining issue after appearance, the Court may wroceed with the issue the same as if said parties had appeared and judgment on said issue shall be as valid as though issue had been joined. If on return of the rule any of the persons served, disclaim, by writing filed, any right, or title, to said land (or interest therein) all further proceeding as to such persons shall cease and said disclaimer shall forever bar such persons from claiming the same. If the Court refuse such rule or issue, the matter may be appealed to the Supreme 24 PRINCIPLES AND DECISIONS Corporations. Court by either party. Act of 21st May, 1895, P. L. 89. When action is brought to recover damages caused owner of lands by reason of appropriation of right of way or easement under right of eminent domain, by corporation, if owner and such corpora- tion cannot agree as to amount due to said owner for said appropriation, parties may, by agreement, waive the right to have damages assessed as by law required and owner may file his claim in the Court of Common Pleas and rule defendant to plead thereto in 15 days from notice of rule and said suit shall proceed the same as if award of viewers had been filed and appeal had been taken therefrom and either of said parties to said action shall have right on motion, to demand and have jury selected to try said cause, visit and view pre- mises over or through which right of way or easement afore- said may extend before rendering verdict in the cause. Act of 29th May, 1895, P. L. 127 amends 4th sec. of an act to provide for corporations to insure owners of real estate from loss by defective titles, liens and encumbrances, approved 9th May, 1889, so as to read as follows: ‘‘To act as assignees, receivers, guardians, executors, administrators, and to take, accept, and execute trusts of every description not inconsistent with the laws of this State or United States and to receive deposits of money and other personal pro- perty and issue their obligation therefor, to invest their funds in the purchase of real and personal securities. That the Court into which moneys may be paid by parties or brought by RELATING TO REALTY PKACTICE. 25 Corporations. order or judgment may, by order. direct the same to be deposited with any such corporation.”’ Act of 24th June, 1895, P. L. 264. Where conveyances of real estate in this State is made by aliens, foreign corpora- tion or corporations of another, or this state, to a citizen of the United States or to a corporation under our laws, author- ized to hold realty before any inquisition is taken against the real estate so held to escheat the same, such citizen or corporation, grantee as aforesaid, shall hold and may convey such title and estate indefeasably as to any right of escheat in this Commonwealth by reason of such real estate having been held by an alien or corporation not authorized to hold the same by laws of this State. The Act of 20th April, 1897, (P. L. 28,) amended the Act of May 18th, 1893, so as to extend the provisions of the last named Act, (which related to the holding and conveying by corporations of real estate acquired by them under execu- tion, or in satisfaction of debts, for five years,) so that the same shall extend to ull property, bought and now held by them; and also extended the time for such holding and conveying an additional term of five years. CHAPTER II, EASEMENTS. An easement is a privilege without profit which one has for the benefit of his land in the land of another ( Webster, Easement). The law of easements and servitudes relates exclusively to lands and has no application to chattels (Mason v. Shrewsbury Ry. Co, L. BR. 6, Q. B. 678). The right of pasturage is an easement. The reservation of grass, herbage, feeding and pasturage creates an easement in the grantor to enter and depasture the granted land (Rose v. Bunn 21, N. Y. 276). The right to use the wall of a building as a sign space is an easement that carries with it the right of such access to the wall as is necessary to make the right of value; a contract for such use of the wall for a stipulated term is not a lease, and the use of the wall under the contract 1s not a possession under a lease (Gunning Co. v. Cusack 50 Ill, App 290). An easement is not a right to the soil of the land or to any corporeal interest init. Thus a right of way is a right to the Yeasonable enjoyment of the land in which the right exists, asa road or way. Nota right to use the land for any other purpose; nor is it a right to use every part of the surface of the land for that purpose (Clifford v. Hoare 48 L. J. Com. Pleas 226). There may be RELATING TO REALTY PRACTICE. 27 Easements. an easement of ventilation which may be protected by injunction (Bass v. Gregory 26, Q. B. D. 481). An ease- ment is appurtenant when for benefit of grantees’ estate and passes in such case with the estate to all subsequent grantees (Ackroyd v. Smith 10 C. B. 164). Conveyance of a mill or mill site carries, as a necessary incident to the grant, water privileges necessary for its use (Jones on Easments 17), An easement is distinguished from a license, though often difficult to make out whether a particular case is the one or the other (Jones on Easements 50). An easement must be created by a writing or by prescription, while a license may , be by parol. An easement or servitude may be created by a covenant or condition, if it were the intention of the parties to create such right for the benefit of the grantor’s other land, and the covenant is such that it may be made appurtenant; but covenants in restraint of trade cannot be annexed as appurtenant to land, or regarded as an easement in favor of one tenement imposing a servitude upon another (Jones on Easements 84-5). Where acontinuous and apparent servitude is imposed upon land a lessee of the servient property in the absence of an express reservation or agreement takes the land subject to the servitude (Friend v. Oil Well Supply Co. 179 Pa. 290). It is a general rule of real property, says Pingery, that the owner of the surface is entitled to absolute support, and not an easement or right depending on a supposed grant; but asa proprietory right at common law (Brainbridge Mines, Min. 488-4) and where there is an ab- 28 PRINCIPLES AND DECISIONS Kusements. solute right of support it is not material that the surface owner ig ignorant or cognizant of the state of the mines or the mode of working them, or that the mine owner has shown the utmost skill and prudence in working the mine. In the absence of an express agreement an owner of mines can- not work them so as to injure the surface (Bill vy. Reed,1 W. V. @. 70) yet the owner of both surface and mines may so grant the right as to give the owner of the mines the right to excavate the same though by so doing he may injure the surface. Mining property is subservient to the surface . to the extent of sufficient support to sustain it. To control the common law rule, a usage to mine without observing this duty must be so ancient and uniform in the particular place, as to amount to a custom time out of mind, and hardly pre- tended in the United States. It has been held where plaintiff and defendant owned adjoining lots, defendant dug down a portion of his lot below the grade of the plaintifi’s land and in order to prevent plaintifi’s ground from falling over into his own lot erected a retaining wall along the line of plaintifi’s property. This wall fell and left plaintifi’s ground abutting upon it in a dangerous condition so as to constitute a nuisance. Plaintiff sought redress against defendant on the ground that he owed him lateral support. Statement by plaintiff, affidavit of defence by defendant; also rule for judgment for want of sufficient affidavit of defence. Rule made absolute on the point being raised as to liability of defendant on the facts above stated, upon the rule of law RELATING TO REALTY PRACTICE. 29 Easements. that an adjoining proprietor is entitled to such lateral support from his neighbor's land as will sustain his own land in its natural state. Goddard in his law of easement says : In America the prevailing rule seems to be that if the land and buildings of the plaintiff both fall into an excavation, wrongfully made by the defendant, for want of lateral sup- port, if the plaintiff has only the natural right of support for his soil and has not acquired any more extensive right for support of buildings he can recover only such damages to his land as the amount the land itself received and cannot include any loss for buildings, or improvements on the land, such as fences, trees, shrubs, etc. (Gillmore v. Discoll 122 Mass. 199). The correctness of this rule seems question- able as a plaintiff has not only remedy for natural rights in land, but also those acquired by reasonable use and occupa- tion. Where two adjoining lot owners fronting on a public street are required by city ordinance to lower their sidewalks to the established street grade, and one grades his whole lot to conform to that of the street, and the other only grades his side walk : Is the latter liable to the owner who grades his whole lot up to his line for the injury from fall of earth from ungraded lot upon said excavated lot? or contrari- wise does the owner of the graded lot owe the owner of the ungraded lot lateralsupport? Under the decision (Atwater vy. Woods 1, W. N. C. 23) the owner who reduced his lot to the street grade would be liable for any injury caused thereby to the owner who left his lot ungraded and as a consequence the 30 PRINCIPLES AND DECISIONS Easements. latter would owe the former nothing for damages caused by his own wrong in removing the latteral support from the ungraded lot. The mandate of the city to grade the side- walk does not compel the owner to grade his whole lot ‘‘he can do what he will with his own’’ if it does not interfere with the rights of others he can leave it as nature formed it or dig it down, but the very principle will compel him to so use his rights as not to injure his neighbor or take away his lateral support without compensation. The general rule in the United States, observes Pingery, is that an easement in the unobstructed passage of light over an adjoining close cannot be acquired by prescription. Light and air are common property of all, the owner of the lot cannot be pre- sumed to have assented to an encroachment thereon if he has permitted the light and air to pass over it into the windows of his neighbor’s house situate upon an adjoining lot. The law of implicd grants and implied reservations based upon necessity or use alone, shall not be applied to easements for light and air over the premises of another (Haverstickh v. Sipe 83 Pa. 868). In New Jersey and Virginia without American authority Courts have held the English doctrine, viz: The easement of ancient lights in England is a right which under certain circumstances has been recognized to be enjoyed by the owner of one tenement, that is the light and air which naturally reach it from and across the land of an adjacent owner. The extent of the easement therefore depends upon the amount of enjoyment derived RELATING TO REALTY PRACTICE. 31 Easements. from it during the period of prescription (Myers v. Gimmel, 10 Barb. 587). The law of implied grants and implied reservations based upon necessity or use alone should not be applied to easements for light and air over the premises of another, and it follows that a landlord will not be liable for obstructing his tenant’s window by building on the adjoining close in the absence of any covenant or agreement in the lease forbidding him so to do. Of course all authorities agree that the right to have the light and the air enter the windows of a building over adjacent lots may exist by express grant or by virtue of express covenant or agreement. In Donnelly v. Krosskop 19 W. N. C. 658, plaintiff bought from Hon. Chas. Mackey lot 695, Oil City, 15th May, 1886, on which was erected the National Hotel, built in 1871. About that time the then owner of said lot purchased an adjoining lot 700 with purpose of protecting the hotel property by entrance from Sycamore Street to the hotel, and also leave an open court for storage, light, air, etc. On part of lot 700 was a two story building the full width of the lot extending toward the rear end of the hotel, leaving a space between the hotel and said building about twenty feet wide and twenty-two feet long. Mr. Mackey sold this lot to defendant, who now proposes to erect a building on lot 700, twenty feet wide by twenty feet high leaving only about three feet space between the rear end of the said building and the rear end of the hotel and extending the full breadth of the lot. From the time the hotel was 32 PRINCIPLES AND DECISIONS Easements. built there has been at least seven windows and a door, over- looking this twenty-three feet of open space on lot 700. The rooms abutting on said space were kitchen, bed rooms, laundry, etc. The question raised by the bill, answers, and affidavits in this case was whether an easement for light and air would be implied under the circumstances of this case so as to prevent defendant from erecting his proposed build- ing. Witnesses on the part of the plaintiff testified that the full space twenty-three feet is essential as a source of light and air for the hotel and if the space is filled up there is no other source by which said rooms can be supplied and will render it practically useless. On the other hand sixteen witnesses stated that the hotel can be supplied with light and air from other sources. The Pennsylvania cases cited were: Maynard v. Esher 17 Pa, 222; Hazlett v. Powell 80 Pa.293; Haverstick v. Sipe 38 Pa. 868; Renison’s Appeal 94 Pa. 147 and Kay v. Stallman 2W. N.C. 648. §S. 8. Mehard, P. J., thirty-fifth Judicial District presiding, dissolved the injunction to restrain the erection of the new building, partly on the grounds stated in Renison’s Appeal, ‘‘That no implication of a grant of the right to light and air arises upon a sale of one of two adjacent lots having a house on it with windows overlooking the land of the grantor, the grantor by such sale is not estopped from enjoyment of his retained lot by building on it, though it darkens the windows of his vendee, and excludes light and air from such windows, the limitations of these two propositions upon the fact whether such windows RELATING TO REALTY PRACTICE. 33 Escheats. are a real necessity for enjoyment of grantee’s property; and if they be, then the implication of the grant of easement of. light and air will be sustained, but if they be not, or can be substituted at a reasonable cost with a view to the purposes of the dominant tenement, then, such implication will be denied and rejected’’ (Renison’s Appeal opinion of court below affirmed by Supreme Court). In Haverstich vy. Sipe (33 Pa. 371) Lowrie, C. J., says: ‘It never has been considered in this state that a contract for the privilege of light and air over another man’s ground, could be implied from the fact that such a privilege has been long enjoyed, or that on the sale of a house and lot, such contract could be implied from the character of the improvements on the lot sold and on adjoining lots. We do not say that there can be no possible case in which such an implication can arise.” ESCHEATS. Act of 2nd May, 1889, (P. L. 66). If any person who at death was seized of realty, shall die intestate without heirs or known kindred, a widow, or surviving husband, such estate shall escheat to the Commonwealth subject to legal demands on the same, and when any Trustee is seized of real estate in a fiduciary capacity and shall file an account of the same and when the cestui que trust has been unknown for seven years, then the property which belonged to said celrui que trust shall escheat subject to legal demands and when the Auditor General is informed that said realty has or is supposed to have escheated, he shall appoint some suitable 3 34 PRINCIPLES AND DECISIONS Eescheats, person of the county where escheated property is situate to act as escheator of said property. When escheat occurs, or is supposed to occur by reason of the death of an intestate without heirs or kindred, widow or surviving husband, the Orphan’s Court of the county where he died resident, or if not resident within the Commonwealth at his death, then in the Orphans’ Court of the county where the greater part of said property is situate shall have jurisdiction; and when occurring of property in custody of any court, the owner be- ing unknown, the court where such property is shall have jurisdiction in such cases; letters of administration are to be granted by the Register of Wills to escheator, and escheator shall petition said court and set forth his appointment, character of alleged escheat, location and amount of pro- perty alleged to have escheated, names and address of those possessed of same, and the court shall have power to issue citation to any administrator or other depository of the court to show cause why they should not file an account of said alleged escheated property, and if no cause be shown to the contrary the court shall direct said administrator etc. to file his account, and order such administrator etc. to file a statement of the realty of which the decedent died seized, describing the same, and on filing of said account or state- ment the court to audit the same, and inquire whether or not there has been an escheat and if so the manner, cause, etc. and value of the property escheated with due notice to persons in possession, and summon and examine persons RELATING TO REALTY PRACTICE. 35 Escheats. who have any knowledge touching any matter or interest in the premises, and make such orders as shall best serve to inform all parties interested therein, and in case of dispute shall frame an issue to determine the same. When escheat begins in Supreme Court, said issue shall be certified to and tried by the court of common pleas designated by the Supreme Court. And every court having jurisdiction shall file of record a finding which shall set forth: 1st. Whether or not escheat has occured. 2nd. What manner and for what cause it has occured, name of intestate, if any, and persons last seized. 8rd. What estate hath escheated and value thereof. 4th. Where situate and in whose possession. Aud if said estate has escheated the same shall be awarded to the escheator for and on behalf of the Commonwealth ; said adjudication is subject, however, to exceptions of in- terested parties in like manner as in other cases concerning accounts of administrators and trustees; such exceptions are ‘to be acted upon as in other cases with the right of parties agerieved to appeal to the Supreme Court upon the deter- mination of escheat proceedings. The escheator, however, is required to give bond to the Commonwea!th for the faith- ful account of the proceeds of said property upon the final determination of escheat proceedings. A copy thereof to be transmitted to the Auditor General; also filing of same in court after thirty days from final adjudication. Court may on application by escheator direct sale of land so escheated with approved security taken for faithful application of pur- 36 PRINCIPLES AND DECISIONS Escheats. chase money as by decree of court on sale. Title to said realty shall be indefeasible as to said escheated lands and discharged of liens on same. When escheated lands lie in another county from that in which proceedings were com- menced, the Court of Common Pleas of said other county shall direct sale of said property in same manner as heretofore directed; but not until a certified copy of the original proceed- ings and adjudication of escheat are filled therein. Said sale not to invalidate title previously acquired under sale for un- paid taxes, or authorize the redemption of said realty. The escheator shall immediately pay all monies received by him in said behalf into the State Treasury. Persons inter- ested not having notice of proceeding under this act may, with- in three years after final adjudication, traverse the same, and said traverse shall be tried in court with the right of writ of error to Supreme Court, and if found that property had not escheated and persons filing traverse are entitled thereto, they shall have delivered back to them again all prop- erty not sold or if sold the proceeds of said sale, less expenses. Insane persons and minors, whether they have received actual notice or not appearing by committee, guardian or attorney, may within three years traverse the same after recovering mind or attaining full age as hereinbefore provided. Persons first informing the Auditor General in writ- ing properly witnessed that escheat has occurred and shall prosecute escheat with effect shall have one-third the price said property shall produce, upon giving refunding bond to the : RELATING TO REALTY PRACTICE. 37 Hxecutious. Commonwealth to be of force in case of successful traverse of said proceedings. In case of dispute as to which of two or more persons should receive said one-third of proceeds of sale, court to determine the said matter of dispute by issue, which money shall be paid according to final determination of said issue. Property being escheated for a period of twenty-one years and no proceedings had, Commonwealth shall forever be debarred from claiming the same by escheat. Fees to escheator, five per cent. on monies paid to State Treasurer from sales with expenses by him incurred and fees to court officers same as similar cases to be paid from State Treasurer by warrant from Auditor Genera] in customary manner. This act repealing former law inconsistent herewith. EXECUTIONS. Act of 23rd March, 1877 (P. L. 29). Where defendant in execution against said estate shall consent to a condem- nation, as by act of 16th June 1836 (P. L. 769), and where in- quisition is not necessary in law. Sheriff is to summon inquest of six men who shall go upon the premises and under oath appraise land and return the same to court and if execution shall issue for sale of the same and if it cannot be sold for two-thirds of valuation, the Sheriff shall not sell said land but make return to court and proceedings shall be stayed for one year; the same practice is prescribed by Sec. 2 of this Act for cases of estates for life or for years. (Expired by limitation. ) a8 PRINCIPLES AND DECISIONS Jnqiisition, Act of 11th June, 1879 (P. L. 122). That hereafter any writs of Fi Fa issued within seven days of the term of court next succeeding the issue thereof, may at the option of the plaintiff be made returnable to the second term after the date of issuing thereof, and the Sheriff may proceed to levy and sell any personal property and levy upon real estate, hold inquisition on the same without alias writ; and also the duty of the Sheriff to summon an inquest of six men to see if the rents and profits beyond reprises will, within seven years, satisfy the judgment so issued on with interest and costs of suit, and make due return to court. Inconsistent acts repealed. (Amended 1881.) Act of 1895 (P. L. 420) amends 63 sec. of act 1836 relating to executions so as to require officers in charge of them to give notice of sale by advertisement describing real estate to be sold, with time and place of sale in at least two newspapers, one of which, except in Philadelphia County, may, and in counties having a population of 150,000 or more, shall be a German paper. If there be no such paper published in such county, then in newspaper printed nearest thereto, once a week during three successive weeks previous to such sale, under penalty of $50 to the party aggreived, to be recovered as debts of like amount are by law recoverable, but party aggrieved may recover damages actually sustained by reason of such neglect. INQUISITION. As the law now stands in regard to real estate taken in RELATING TO REALTY PRACTICE. 39 Inquisition. execution, we practice as a rule under the act of 16th June, 1836 (P. L. 755) and its supplements, viz: When land is taken in execution by the Sheriff, if defendant has not waived inquisition and extention upon Lev. Fa. and sale on real estate by giving a promisory note (generally contain- ing power to enter judgment thereon by attorney) which also waives defendant’s right to extension, etc., and agrees to a condemnation of said property without an inquest (this practice being very common now) except when waived as aforesaid, it is the Sheriff’s duty to summon an inquest to see whether the rents and profits of such estate beyond all reprises (that is beyond that which is taken from it) clear of judgments and mortgages, is sufficient to satisfy within seven years the judgment upon which execution was issued with interest and cost of suit, and return the same in due form of law to court with the writ; but the defendant, owner of said realty, may by writing filed waive said inquisition and authorize Sheriff to sell same on fi fa, as if waiver had been incorporated in the bond, note or other instrument on which judgment was had, or confessed without other writ. If not so waived Sheriff shall give at least five days’ notice of time and place of inquisition to defendant. If not found in the county to his attorney or agent, and if said attorney or agent be not known to him give notice by hand bills fixed on the premises and at his or Prothonotary’s office as customary and inquest is to be held on premises if so re- quired by defendant. If not so required may be in Sheriff’s 40 PRINCIPLES AND DECISIONS Inquisition, office. Duty of inquest, viz: (six good and lawful men of the bailawick) to take into consideration amounts of minerals rent from ore, coal, oil, or other minerals mined from the land, and ascertain whether or not there are with other rents sufficient in seven years to satisfy debt as aforesaid. If said lands be found to extend, the same shall be assessed, appraised and returned to court, and plaintiff may have Laberari Facias for delivery of land to him at valuation and ap- praisement to be held by him or assigns, etc. till the judgment is satisfied, and return same to court. On execution of said writ the Sheriff shall put the plaintiff or his agent in possession of defendant’s land. Land to be extended according to priority of judgments so that prior judgments be paid off first, and when so extended shall not be affected by subsequent writs of Liberari Facias on other judgments. If during time of extent other debt be recovered against the same defendant which, with what remains due, cannot be satisfied out of said rents or yearly profits in seven years, the Sheriff to certify same by inquisition and court may award writ of Vend Ex to sell the same. If property be sold before the expiration of extent, residue of judgment shall be paid to him with costs and interest as in other cases. In case of eviction of plaintiff from land delivered under Lnberari Facias before he has received all of his debt, interest and costs, said plaintiff shall have Sv Fa on such judgment against defendant to show cause why plaintiff should not have execution for the residue. The Act of 13th October, RELATING TO REALTY PRACTICE. 41 Inquisition. 1840-41 (P.L. 2). Plaintiff on return of Fi Fa with inquisition assessing yearly rents may permit defendant to retain possession at the annual valuation so made by the inquest, and signify his election, to permit defendant to remain in possession of premises, to the Sheriff at any time after inquisi- tion and the Sheriff shall notify defendant within ten days after said notice shall be given to him by the plaintiff; and also defendant shall, within thirty days after notice to him, notify Sheriff of his willingness to keep said realty at the valuation in pursuance of said act of 1836 and on neglect or refusal so to do, plaintiff may have writ of Vend Ex to sell said estate to satisfy his debt. Defendant who retains premises under this act shall pay said annual valuations in half yearly installments until whole debt interest and costs are paid. If defendant fail so to pay said debt for thirty days on affidavit Vend Ex to issue (Black v. Aber 2 Gir. 206; Myers v. Harris 3 Luz. L. Obs. 294). Court shall have power to direct manner of distribution of said installments among lien creditors according to their priority of liens. Where defendant accepts realty under inquisition said act does not permit a second or third inquisition or extent pending the first on a judgment at date of said inquisition; but the same may be collected as provided in the fourth section of said act of 1840. If the inquest find that the clear profits will not be sufficient to satisfy debt and damages in seven years, plain- tiff may have his writ of Vend Ex and sell the real estate towards satisfaction of his judgment; but not without due 42 PRINCIPLES AND DECISIONS , Trupwisition. notice by Sheriff of said sale as directed by law under penalty of $50 to party aggrieved. Nothing in said act shall debar party aggrieved from recovering his actual damage sustained. Where purparts are sold or delivered on execution to a person, such person shall enjoy the same in severalty, or as tenant in common, and not as joint tenant. Act of 1705 (1 Sm. Laws 32). Court in cases of life estates yielding rents shall on application of lien creditors award writ to sequester said rents and appoint a Sequestrator to carry the same into effect. Lev. Ma. on mechanic’s liens is within the act. Sales of life estates yielding profits may be made as in cases of inheritance where some lien creditor shall not on or before return day of first writ of Vend Er have procured a sequestrator to be appointed, but life estate cannot be sold under Fi Fa (Commonwealth v. Allen 30 Pa. 49). No vend. exponas can issue for sale of a life estate unless by order of the proper court on ten days previous notice of the application for such writ to the tenant for life. By act of 1836 (P. L. 778, sec. 94) officer making sale of real estate under execution shall make return endorsed on said wat and give buyera deed duly acknowledged after proclama- tion in open court. If the officer by whom real estate is taken in execution die, resign, or be removed from office, or his term of office expire before any deed shall be executed by him, court shall have power upon petition of plaintiff in execution or of purchaser at said sale by order to direct RELATING TO REALTY PRACTICE. 43 Inquisition. the Sheriff for the time being to execute the deed to the purchaser, and by act of 1879 (P. L. 122) writs of Fi Fa may be issued within seven days of the next term, or may at the option of the plaintiff, be made returnable on the second term after date of issue. The deed of the Sheriff following the sale on execution against real estate shall be recorded in the Prothonotary’s office as by act of 1893 (24 May, P. L. 127) and certified copies be evidence in all cases where the original deeds would be evidence. By the 104th section of the act relating to executions ‘‘The several courts aforesaid shall have the like power to compel the Sheriff or Coroner making sale as aforesaid, to perfect the title of purchasers in cases of de- fetive or inforinal execution of Sheriff's or Coroner’s deeds and they may grant relief in the manner, and upon the terms and conditions aforesaid and with like effect.”’ A Sheriff is only bound to deliver to a purchaser, such title as the defendant or the person, as whose property said land or interest was sold had, and no greater; but he is bound by this section to deliver such title, whatever that may be, unimpaired by any laches on his part or of defects caused by, or defective proceedings in his ministerial duties. If the late Sheriff executed a deed which was defectively acknowledged his successor cannot make a new deed; but the late Sheriff may reacknowledge it though out of office. The act of 1836, an act relating to executions, although over three score years have passed away, stands comparatively 44 PRINCIPLES AND DECISIONS Forestry Reservations. speaking unimpaired. Fifty-seven out of its one hundred and twenty sections relate to real estate, and most of them without amendment are the law to-day. This valuable act, like the act passed the same year relating to mechanic’s liens and other wholesome laws of the early history of our state, seems to verify the old proverb that ‘‘Times change, and men sometimes change with them, principles never.’’ The laws of that year and of the previous years of our Common. wealth’s history were not the thought of a single decade, but the accumulated thought of centuries. FORESTRY RESERVATIONS. Act of 30th March, 1897 (P. L. 11). From Jan- uary Ist, 1898, when unseated lands shall by existing law become liable to be sold by county treasurers or county commissioners for nonpayment of taxes, it shall be the duty of said officers to publish notice six weeks in two news- papers within the county where said lands lie, and if none be published in said county, then in the county nearest the same. The notice shall contain the names of the owners when known, the warrant, numbers, names of warranties, when known, number of acres, township where located, sums due on each tract for taxes,and the same shall immediately upon publication be sent to the Commissioner of Forestry and Secretary of Agriculture, to each ten copies; said Commis- sioner, in case such lands are so located as to be desirable to the state for forestry reservation, shall have power to purchase the same for the Commonwealth at tax sale, RELATING TO REALTY PRACTICE. 45 Forestry Reservations. subject to redemption, the price not to exceed amount of taxes and costs. And if not so redeemed said lands to vest in the Commonwealth and be part of the forestry reservation. Act of 25th May, 1897 (P. L. 88). Land owners hav- ing forest of timber trees, not less than fifty trees to the acre, not less than eight inches in diameter at a height of six feet above the surface of the ground, and no portion of said land cleared, shall on making due proof be entitled to receive annually from the commissioners of their respective counties, while said forests are thus maintained, 80 per cent of taxes annually assessed on said forest land and paid, or so much of said percentum as shall not exceed the sum of forty-five cents per acre, provided that no property owner shall receive said sum on more than fifty acres. By act 25th’ May, 1897 (P. L. 86) The Governor shall appoint a commission composed of the Chairman of State Board of Health, Deputy Secretary of International Affairs, and two others, one of whom shall be a lawyer or convey- ancer of ten years professional experience, and the other a practical surveyor; said conimissioners to locate and report to the Governor or to the legislature if in session. ‘The following forestry reservations, one of not less than 40,000 acres upon waters which drain mainly into the Delaware River, one not less than 40,000 acres, upon waters which drain mainly into the Susquehanna River, one not less than 40,000 acres upon waters which drain mainly into the Ohio River. Said lands to be suited to growth of trees, and fifty 46 PRINCIPLES AND DECISIONS Forestry Reservations. per cent of area of 500 feet attitude above sea level. The said commission shall have power to take these lands under right of eminent domain and said commission shall serve without compensation except having their general salaries continued while acting in this capacity, expenses of travel, etc. By act 26th May, 1897 (P. L. 101) It shall be the duty of the Secretary of Internal Affairs to ascertain as far as possible the owners of lands against which liens are entered under the act of 1864, and enforce collection of amounts due the state by reason of unpaid purchase money, interest and fees where lands were sold by the Commonwealth which now remain unpatented, by reason of unsettled accounts against such lands. If persons owning such unpatented lands against which liens are entered, refuse or neglect longer to pay said lien, or the portion applying to the part which such person owns, itshall be the duty of the Secretary of Internal Affairs to take action on the same, and in case of refusal of the owner to pay the amount due, certify the claim to the Attorney General, who shall proceed by Sci. Fa. sur. liens, directed to the Sheriff of the county where the lands lie, also the clerk of the Board of Property to make a list of said liens, said monies to be paid into the state treasury, when paid satis- faction to be entered on record of docket. The act of 23rd April, 1889 (P. L. 46) amends section 3 of act 14th April, 1874, which is an act relative to issuing war- rants of survey of vacant lands which provides after filing their RELATING TO REALTY PRACTICE. 47 Forestry Reservations. application for warrant and depositing purchase money with Surveyor General, shall give thirty days notice by publication and which provides that if caveat is entered against the issuing of such warrant, warrant shall not he issued till directed by Board of Property, and if said Board decide against the issuing thereof said purchase money shall be returned to the applicant. Said act of 1889 amends this act directing said purchase money to be deposited with the Secretary of Internal Affairs, and directs that caveats presented by claimants, by virtue of settle- ment and improvements, shall not be received unless caveator deposit purchase money, interest, warrant, and patent fees which money shall be retained until decision had as to respective rights of the parties. If decision is against Caveator, money to be refunded to him on applica- tion, provided, that settlement and improvement rights shall only be acquired and recognized as such by actual entry on vacant land, with manifest intention to make it a place of abode and actual improvement by clearing and tillage to gain support thereby and having said lands surveyed. CHAPTER Ill. EJECTMENT. An American author says, ‘‘The desire to acquire and ‘hold property is one of the strongest of human feelings. It might, perhaps, be better called a passion; so deeply rooted is it, so ardent and engrossing. To gratify it, hardships are patiently endured, dangers cheerfully braved, and even life risked and sometimes sacrificed.’?’ This emotion is founded partly on necessity which renders some acquisition indispensible, and partly from love of power aad influence which such possessions confer. While this impulse is toward all material things, it is most with civilized man towards the fixed and immovable forms of property, as lands, tenements and hereditaments, because these are least perishable, minister most perma- nently to the wants and gratification of mankind, and can be transmitted to remote posterity. To gratify this desire for permanent property, disputes have been engendered, suits at law instituted and posses- sion of lands taken, sometimes by stealth or open force and even by violence. But it is only the former of these methods we here dis- cuss, viz., suits at law to recover rightful possession, as well as to try the title to lands, and for purchase money and the like, and further the means of obtaining possession by RELATING TO REALTY PRACTICE. 49 Ejectinent. peaceably ejecting or turning out the wrongful possessor of the premises. The common law action of ejectment was originally in- cumbered with fictitious parties, leases, entries, and ousters, which have become almost obsolete in Pennsylvania and the old forms of action abolished. While the right to recover possession of real estate wron g- fully withheld still remains the same as at common law, a new system of practice more in keeping with modern times has grown up, and for the purposes of this chapter, a history of the old forms of ejectment is deemed unimportant and therefore omitted. Ejectment was not originally designed for trying the title to land. As to the last named mode of obtaining possession, viz. obtaining redress by the act of the parties wronged, independent of a suit at law, where posses- sion may be obtained without a breach of the peace, the remedy is simple and sometimes easily applied; but often it is far better to resort to a suit at law than engender quarrels, strife and assaults, and thereby endanger the security of property and perhaps life itself. The civilization and development of a state, like the compensating pendulum, regulate not only the political and commercial affairs of a people, but regulate also the multi- plicity and diminution of real and personal actions at law. A high state of civilization and social culture brings as a re- sult the institution of many suits for damages to reputation, viz. actions for words spoken, written or published, actions 4 50 PRINCIPLES AND DECISIONS Fyectment. for assault and battery, suits for alienation of affections, dam- ages for injury done to the feelings and for bodily suffering, cruelty to children, cruelty to animals, etc., which in a ruder state of society would never have been thought of. While on the other hand, kidnapping, the multiplicity of suits that grew out of the institution of slavery and concern- ing the rights of minors bound to a master in apprenticeship, forcible entry, squatter settlements, and for ejectment from lands and tenements have become less and less frequent in proportion to the inhabitants than in former times. In the early history of Pennsylvania when large tracts of land were apportioned and sold by the Penns and afterwards by agents of the State and again subdivided into smaller lots or pieces of ground, this action of ejectment was common in our courts, and was a fruitful source of business and profit to the old-time lawyers of Pennsylvania, especially as the es- tates in lands became valuable and difficulties began to arise as to the meets and bounds of real property; the landmarks and monuments were removed by necessity, decay or other causes, and as the surface of land with the timber was then the chief source of wealth, the lines that divided lands were guarded with religious scrutiny, but for almost half a cen- tury in many parts of this Commonwealth, the lines, especi- ally in rural districts, are so well settled and demarked that litigation seldom arises from a dispute concerning boundary lines; but where lands are laid out and incorporated into boroughs, cities, etc., and larger tracts become divided into RELATING TO REALTY PRACTICE. dl Ejectment. — Pennsylrania Statutes. small parcels, suits of ejectment are yet frequently brought ; and furthermore this action is still resorted to in order to com- pel the payment of purchase money, obtain possession of lands leased for a term of years and for other causes. Back, as far at least, as 1705 (I. Smith L. 48) there was some legislation in Pennsylvania relating to ejectment from lands. In that year it was enacted as a statute of repose “That seven years of quiet possession of lands which were first entered on upon equitable right shall forever give an unquestionable title to the same against all during the estate whereof they are or shall be possessed, except in cases of in- fants, married women, lunatics and persons not residing within this province or territories.’’ And much later by the act of April 2, 1803 (4 Sm. L. 89, Sec. 2) when any ejectment shall be depending in the Supreme, Circuit, or Court of Com- mon Pleas, it shall be lawful for the Prothonotary, or Clerk of the Court in which such suit is depending, on affidavit of the plaintiff (or person knowing the fact) filed in the office of said officer, setting forth that the tenant or defendant in such ejectment has committed, or is committing waste, to issue a writ of estrepment as of course to prevent the same without motion and in vacation. PENNSYLVANIA STATUTES, \ The act of March 21, 1806 (4 Sm. L. 332) prescribed a form for all writs of ejectment which has been followed ever since, and if the precipe for said writ is in proper form as by PRINCIPLES AND DECISIONS Sy we Hjectment.—Pennsylvania Statutes. said act described, fully defining the boundaries of the land, number of acres, etc. declaring title to be in the plaintiff and not in defendant, the plaintiff needs no other declara- tion. The rules of court generally provide that it shall be the duty of the plaintiff to file on or before the first return day of the term to which the writ is returnable an abstract of the title on which he relies, and the defendant shall plead “not guilty’’ and enter his defense, or the officer enter said plea, if any, before the next term and file a statement contain- ing an abstract of his title or the facts on which he relies for defense, whether the same be in writing or otherwise, and if a matter of record, a reference thereto, with a specification of so much of the plaintiff’s title as he denies and so much thereof as is not denied shall be deemed admitted, and in answer thereto it is plaintifl’s duty (generally in 20 days) after notice to file specifications traversing so much of de- fendant’s title as he denies, and so much thereof as is not denied shall be admitted, and the case may then by rule be ordered on the issue docket. Failure to comply with the above rule by the plaintiff subjects himself to a non pros as of course, and a like failure of defendant to make denial vis- its upon him such judgment as the court may deem just in the premises (Allegheny county rules of court C. P. 39). Following the said act of 1806 was the act of April 13, 1807 (Sec. I. 4 Sm. L. 476) which provided that the writ of ejectment prescribed in the act to which this is a supple- ment shall issue in all cases where lands etc. are claimed RELATING TO REALTY PRACTICE. 53 Ejcetment.— Pennsylvania Statites. and gives a remedy as full and effecual as in ejectments in the form heretofore used; and all parties having an undivided interest in the lands whether as joint tenants, coparceners, or tenants in common may join therein and recover according to their interest and title; that minors may sue by their guardians asin other cases, and the defendant may defend upon his own title or that of a third person, and the landlord as hereto- fore may be admitted as defendant and on the trial may admit himself in possession also. If it appear to the Sheriff that other persons not named in the writ are in possession he can add their names to such writ and serve them, and the Prothonotary shall enter such additional defendants to the action who also shall be parties, and on failure after legal service judgment may be entered by default against such parties (in default) as do not appear for such part of the land as they are possessed of (but such judgment for de- fault should be taken in open court) as also a writ of pos- session against said parties so in default, and the trial may proceed for the residue against the other defendants; again, such writ shall not abate by reason of the death of plaintiffs or defendants, but parties next in interest may be substi- tuted in place of the plaintiffs or defendants who shall have died pending the suit; and, again, the said act provides that where two verdicts shall be given in any writ of ejectment between the same parties in succession for either the plain- tiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought, but where there may be a verdict 54 PRINCIPLES AND DECISIONS Hjectment. —Penasylounia Statutes. against verdict, between the same parties and judgment thereon, a third ejectment in such case and verdict and judgment thereon shall be final and conclusive and bar the right. The plea in ejectment shall be ‘‘not guilty.” Thus by the acts of 1806 and 1807, the cumbrous pro- ceedings of fictitious parties were done away with, and a simple mode of proceedure instituted, and our courts are fully empowered to make such rnles in said action as may be deemed beneficial without the aid of the Legislature. The most common use, perhaps, of this action is that of obtain- ing possession of the land; and in Pennsylvania it is al- most the only action for trying title (Morris v. Vanderen, I. Dallas 71, overruled in part by Jordan v. Stewart, 28 Pa. 249). But it is not the proper remedy in a court of common pleas for trying the action for the recovery of a widow’s dower ( Prin- gle v. Gaw, 5 S and R. 585). In such case an action in dower is the proper remedy. Ejectment will not lie before assignment. Ejectment is also a remedy to enforce the specific performance of a contract, either by the recovery of the land itself or the money instead of the land. It enforces the equity of a plaintiff relative to land, and compels the pay- ment of money charged on land where there is no common law remedy (Gause v. Wiley, 4 8S. & R. 528). It has been held that ejectment lies on a mortgage, because the act which provides a Sci Fa gives no remedy where the object is not to turn the land into money (Knaub v. Esstek, 2 Watts, 282). The remedy for Sci Fa does not exclude the remedy RELATING TO REALTY PRACTICE. 55 Hjectment.—Pennsylvania Decisions. by ejectment on a mortgage, because they are different in their objects and results (Marten v. Jackson, 27 Pa. 504). Ejectment also gives a remedy for the recovery of demised premises by a landlord (Alden v. Lee, I Yeates, 160) when in cases where a notice to quit does not apply under the landlord and tenant acts and where the lease has expired (Stofflet v. Troxel, 8 W. & S. 840). Where the lease is for a definite period, to end without notice at its expiration, he may bring this action whether or not he has given notice to quit within three months (Hvans v. Hastings, 9 Barr, 273). Ejectment on an equitable title is in substance a bill for specific performance, and is therefore governed by the gen- eral principles of equity (Deitzler v. Mishler, 87 Pa. 82). A vendee of land who has fulfilled his portion of the contract by payment or tender may obtain possession by this form of action. One ejectment verdict settles the title in equitable ejectment. PENNSYLVANIA DECISIONS. But in Pennsylvania specific enforcement of a contract by ejectment depends upon the equity and justice of the case, and it may sometimes happen, even where the agree- ment was sound and good, and mutually obligatory upon the parties, that nevertheless, specific performance will not be enforced (Remington v. Irwin, 14 Pa. 143). Ejectment as a rule will only lie for things whereof possession may be de- livered. But it seems ejectment is not the proper remedy or form of action to recover a legacy charged on land, and 6 PRINCIPLES AND DECISIONS Hjectment.— Pennsylvaiia Decisions. it is well settled that in all actions for the recovery of a leeacy, which is a charge upon the land, neither the action of ejectment nor any other form of action at common law is the proper mode of procedure to recover the same,; but the proper way is to go into the Orphan’s Court which has exclusive jurisdiction, where the said legacy is charged on the land. As before stated the statu- tory plea in ejectment is ‘‘not guilty’’ (Gallagher v. Mc- Nutt, 8S. & R. 408). Authorities upon the question as to whether ejectment will lie for encroachments upon the pos- session of another by projecting cornices, overhanging eaves, and gutters, leaning walls etc. are far from being harmonious throughout the different states, but the general rule that these interruptions of the owner’s possession are more in the nature of nuisances which may be abated as such, either by an action at law or in equity, or by the act of the party himself than unlawful disscisin for which action of ejectment will lie, seem to be supported by the weight of authority (Aiken v. Benedict, 89 Barb 400—Vrooman v. Jack- son, 6 Hun. 826). In Murphy v. Bolger (60 Vt. 723) a differ- ent rule was laid down. ‘‘ We can find no reason why for the projection by one party of a portion of his building over the land of another he may not be liable in ejectment.’’ It was held by the supreme court in 1843 that the ven- dee of plaintiff in ejectment cannot be substituted so as to enable him to recover, In order that a plaintiff may be entitled to recover in RELATING TO REALTY PRACTICE. 57 Hjectment.— Pennsylvania Decisions. ejectment, he must be able to show title in himself (Cowvert v. Irwin, 3 8S. & R. 283) that is the means by which he should have the just possession of his property, and he must recover upon the strength of his own title and not upon the weakness of that of his adversary (Lane v. Reynard, 28. & R. 66). But if the defendant has fraudulently induced the plaintiff to purchase a bad title, he is estopped from setting up the rules against the plaintiff (Jdid). Naked possession (the lowest degree of title) is a good title to recover against one who put the plaintiff out of possession and can show no better title (Walker v. Coulter Addison, 891— Woods v. Lane, 28. & R. 52). A plaintiff in ejectment cannot recover upon a legal title obtained from defendant in pursuance of a contract the consideration of which had entirely failed, and which, if the title had not been actually made, it would have been against common justice to enforce (Bishop v. Reed OW. & S. 261). If the plaintiff has not a regular paper title, it is sufficient to show a right of entry (JMillegan v. Dickson, [. Peters C. CL R. 433). Tt is not necessary to show a title from the Commonwealth, where both plaintiff and de- fendant derive title from the same person (Patton v. Golds- borough, 9 S. & R. 47) and the said plaintiff need not go further back in deducing his title in the first instance, than a valid will of a person under whom he claims, who died seized of the land. The law presumes a fee simple in the cle- visor unless the contrary is shown (Wes! v. Pine, 4 W. CC. R. 693). Where both plaintiff and defendant claim under 58 PRINCIPLES AND DECISIONS Hjectment.—Pennsyleania Decisions. the same title, the plaintiff is not bound to trace back his title beyond the common source of their right. If there be an adverse right it lies on the defendant to show it (Riddle v. Murphy, 7 S.& R. 234). Tf the defendant opposes to plaintifl’s title, a superior out-standing title in a third per- son under whom he does not claim, it must be a subsisting and an available title on which the asserted owner might re- cover in ejectment (2homas v. Wright, 9 S. & R. 87). If such a title is barred by the statute of limitations or by de- cent cast, defendant cannot avail himself of it to protect his mere possession, he being a perfect stranger to the title. ‘There is no better rule,’’ says Justice Kennedy, ‘‘than that if a better title be shown on the trial of a cause, than the plaintifi’s, whether it be a third person or in the defend- ant, the plaintiff cannot recover’ (Kennedy v. Skeer, 3 Watts 97). Where the plaintiff had shown a title which would have entitled him to a verdict unless that of defendant was better, held error to instruct the jury that they were not called upon to decide the validity of the defendant’s title, the only question being how far plaintiff had made out his own (Jack v. Dougherty, 3 Watts 151). But if defendant give no evidence and relies on the insufficiency of the plain- tiff’s title, it is not error for the Court to instruct the jury that the plaintiff is, upon the whole case, entitled to recover (Foust v. Ross, 1 W. and 8. 501). The rule that plaintiff must recover on the strength of his own title seems to be grounded in part at least upon the principle that it is not for RELATING TO REALTY PRACTICE. 59 Ejectment.—Pennsylvania Decisions. any plaintiff that chooses to set up a legal right to show that the defendant has no right to the land, while he shows by his own case that he is upon no better footing than the defendant, and as arule, being out of possession, has, with- out showing a right in himself, no right to disturb the tenant in possession, although like him, except possession, has no title to the same. The defendant is not called on to yield up the land till a real owner comes and ejects him, which through neglect or other cause may never happen, and then as between the plaintiff and defendant he, the defendant, would have the better right. Again, if defendant can show a better outstanding title in a third person on the trial than plaintiff, he has the right to avail himself of it, and need not give up the possession till suit is brought and judgment entered by the outstanding claimant. A defendant who had set up an old title in a third person was permitted to show the record of a recovery by such third person against the plaintiff, not to prove that the stranger had the better title, but to rebut a presumption from lapse of time of his having abandoned it. A plaintiff must show a complete title at the commencement of the suit, and the defendant may show that plaintifi’s right to the land had failed to exist in him from any cause at the time of trial (Galbraith v. Elder, 8 Watt's R. 101). The right, however, to set up an outstanding title in a third person, as a defense is subject to several restric- tions. If the tenant in possession entered under the plaintiff, or has recognized his title, he cannot set up an outstanding 60 PRINCIPLES AND DECISIONS Hjectment. —Pennsylvania Decisions, title in a third person (Jackson v. Brown, 14 Johns 224, Jack- son v. Scott, 18 Johns 94). Lessees cannot in ejectment impeach the title of their lessors, except for fraud upon themselves or the Commonwealth (Boyer v. Smith, 5 Watts 55). Nor can a tenant resist his landlord’s recovery by virtue of an adverse title acquired during the lease (Caufman v. Church, 6 Binn 62—Addison 357). A landlord may recover against a tenant without showing any other title than such relation and the termination of the tenant’s rights under the lease, and in such case the plaintiff may recover, notwithstanding the existence of an outstanding title in a third person. An out- standing title in the Commonwealth furnishes a tenant no right to dispute his landlord’s right of possession (Kline v. Johnson, 12 H. 72). But he may show the landlord seized of a life estate which had terminated by death before suit by the heirs, or that lessor’s estate had expired or was trans- ferred (Heccart v. McKee, 5 Watts 285). Of course there are exceptions to the rule that a lessee cannot controvert his landlord’s title, as where he was induced to take the lease by fraud or misrepresentation (Miller v. McBrier, 14 8S. and R. 881). When the action of ejectment is placed at issue, the same general proceedings are had to bring the case to trial as in other civil cases. The case may be ruled out for arbitra- tion. If done within the time authorized by law and the rules of court, depositions may be taken by either party, or testimony taken abroad by commission and interrogatories as in other actions. If the defendant quit possession after RELATING TO REALTY PRACTICE. 61 Ljectment.— Pennsylvania Devisions. service of the writ, it does not relieve him from the pay- ment of damages and costs. The action of ejectment being a possessory one, the plaintiff cannot recover in this form, land of which he is in actual possession at the time ( Avibbs v. Downing, 25 Pa., 1 C. 899). Tf the defendant be in pos- session as a mere intruder, it is only necessary to show the prior possession of the plaintiff without showing the legal title in him (Turner v. Reynolds, 23 Pu., 11 H. J99). A purchaser at Sheriff’s sale, under judgment against persons claiming the equitable title with notice of the outstanding legal title, cannot set up an unrecorded equity against the legal title (Dougan v. Blocher, 24 Pu. 28). A landlord cannot maintain an ejectment against a tenant for years until the lease expires (Stofflit v. Troxell, 8 W. and S. $40) but as soon as the lease expires may maintain it without notice to quit (Evans v. Hastings, 9 Barr 273). The lease, however, in such a case must be for a definite term (Jones v. Whiti- head, 1 Pars Eq. Cases 804) the tenant having agreed to give up the possession at the appointed time (Bedford v. AlcHl- herron, 2.8. and R. 949; Thomas v. Wright, 9S. and R. 87). If the defendant, after service of the writ, quit the pos- session of the land for which ejectment was brought, such act does not affect the plaintiff’s right to proceed to a verdict for costs (Zeigler v. Fisher heirs, 3 Barr 305). If the termination of the lease is uncertain as from year to year, and the landlord wishes to determine the lease, he must give notice three months prior to the expiration of the 62 PRINCIPLES AND DECISIONS Ejectment. — Pennsylvania Decisions. year. A notice given on New Year’s day is too late where the lease expires on April 1st (Logan v. Herron, 8 S. and R. 459). But if he lets the year expire without such notice he cannot regain his lost possession by a notice in the first month of the new year. Such notice is illegal, and the tenant (Boggs v. Black, 1 Binn 333; Fahnestock v. Faustenaur, 58. and R. 173) has a right to hold for that year. Only a tenant is entitled to notice ; a mere intruder is not. If the term is definite and the tenant holds over, the landlord may treat him either as a tenant from year to year or as a tres- passer. Opinions as to the effect of two verdicts in eject- ment on the equitable title (ejectment being used to try two kinds of titles, legal and equitable), caused in Pennsylvania conflicting legislation and adjudication (Beck's Execu- tors v. Graybill, 28 Pa. 4 © 66). In 1840, in Seitzinger v. Ridgway (9 Watts 496) it was announced that one verdict with judgment in an ejectment brought by a vendee to compel the specific performance of articles of agreement touching the sale of land was conclusive between the parties and a bar to subsequent action on the ground that when ejectment takes the place of a bill in chancery it must accord with the rule of that court, which makes one judgment there given under similar circumstance as to specific performance conclusive between the same parties, and those claiming under them. Before this there were no cases making any distinction between ver- dicts on equitable and legal titles. To counteract this RELATING TO REALTY PRACTICE. 68 Hjectment.—Statute of Limitations in. Pennsylvama. decision the Act of 5th May, 1841 (P. L. 446, Sec. 5) was passed making the provisions of the Act of 1807 extend to both legal and equitable ejectments, whether brought as a substitute for a bill in equity or for other object or purpose. Then following was the Act of 21st April, 1846 (Sec. 1, P. L. 424) in all actions of ejectment to enforce payment of pur- chase money wherein time becomes of the essence in the find- ing of the jury, or in a judgment by confession by fixing a time for such payment, one verdict and judgment thereon unre- versed, ora judgment in such case by confession shall be conclu- sive between the parties, and a failure to pay the money within the time so fixed shall be deemed a recision of the contract between the parties and shall render the judgment absolute. However, the Act of 1850, though not published in pamphlet form, repealed the fifth section of said Act of 1841 (Peterson v. Huling, 31 Pa. 435) restoring the doctrine laid down in Seitzinger v. Ridgway, thus ending a vexed question. Lewis, C. J., afterward said : ‘‘ The judgment was certainly a decree in favor of defendant’s equitable title.’ It was pronounced in an action brought after the passage of the Act of 1850, the object of which was to restore the rule established in Sei/zinger v. Ridgway. (Acts of 26th April, 1850, Sec. 4 P. L. 591; also Act of 8th May, 1850, Sec. 18 P. L. 716). STATUTE OF LIMITATIONS IN PENNSYLVANIA. The statute of limitations is a very common defense to the action of ejectment which may he set up if pleaded by a 64 PRINCIPLES AND DECISIONS Hjectment.—Statiute of Limitations in, Pennsylvania. defendant. It may also be set up by a plaintiff to make the title on which he relies to recover from a defendant who cannot show title from a source of strength equal to it; but it is of the statute as a defense of which we now speak. By the Act of 26th March, 1785 (2 Sm. L., 300) ‘‘ From hence- forth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued ; nor maintain any writ of right or any other real or possessory writ of action for any manor, lands, tenements or heredita- ments of the seisin or possession of him, her or themselves, his, her, or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her, or them- selves, his, her, or their ancestors or predecessors, than within twenty-one years next before such writ, action, or suit so thereafter to be sued, commenced or brought’’; pro- vided, if the person having said right or title at the time it first descended or accrued be within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, or from without the United States they may bring their action within ten years after such disability is removed, but not after, and in case of death of any such person within said ten years, his heirs shall have the same benefit that such person could have had by living until the disability should have ceased or been removed. The Act of 11th March, 1815 (6 Sm. L., 803) repealed so much of the said RELATING TO REALTY PRACTICE. 65 Hjectment.—Pennsylounia Cases. Act of 1785 as provided for an exception from the twenty- one years limitation persons beyond the seas or out of the United States. The Act of April 14, 1851 (P. L. 615) limits any suit being brought, whether under disability or not _after forty years, and where there has been continuous pos- session for thirty years it shall be presumed as between parties litigant, other than the Commonwealth, that the State has parted with the title (Act of 4th May, 1851, P. L. 570). A party cannot avail himself of successive disabilities. If the title accrued to a female infant and she marry, the period of ten years is counted from the time of her attaining her majority, and not from the death of her husband (Thompson y. Smith, 7S. & B., 209). PENNSYLVANIA CASES. Ifa person under disability die before it ceased, his heirs have the same time to make entry or bring suit as he would have had if he had survived the disability (Henry v. Carson, 59 Pa., 297). The statute does not begin to run against children till the end of the term of disability and a subse- quent adverse holding by the tenant. The statute of limitations does not apply to one who makes entry more than twenty years after his right of action accrued, if there has not been an adverse holding by the defendant, or those under whom he claimed for twenty- one years. In-order to make the bar of the statute available against the plaintiff and in favor of the defendant, there 5 66 PRINCIPLES AND DECISIONS HMectment.—- Pennsylvania Cases, must not only be a failure by plaintiff to make entry or sue for the statutory time but a concurrent claimancy and ad- verse possession by the defendant for twenty-one years in order to the gaining of a title by the defendant under the statute. If a plaintiff claims title by twenty-one years’ adverse possession, he must prove every element necessary to constitute a, title under the statute. Otherwise it is the duty of the Court to instruct a jury that there is not suffi- cient evidence. to entitle him to recover (DeHaven v. Landell, 31 Pa., 7 C. 120). In an action of ejectment after thirty years from the agreement of substitution, it is too late for his heirs to object that the administrators had not been for- mally substituted by Se: Fa (Foster v. Gray, 10 Harris 9). The rights of the Commonwealth are unaffected alike by the statute of limitations and by those that authorize the sale of land for unpaid taxes (Trautman v. May, 33 Pa., 9 C. 455). One who enters on land as a trespasser, clears it, builds a house and lives in it acquires something which he may transfer by deed or descent; and if the possession of such person and others claiming under him added _ together amount to twenty-one years, and was adverse to him who had the legal title, the statute is a bar to a recovery (Over- field v. Christie, 7 S. and R. 172). Acomplete title is gained by a trespasser by the statute of limitations in twenty-one years (IVatson v. Gregg, 10 W295) which is not only suffi- cient to support a defense, but to recover as plaintitf in ejectment ( Pedcrick v. Searle, 5 Sound R. 236), Possession RELATING TO REALTY PRACTICE. 67 Ejectment. — Pennsylvania Cases. must be adverse, actual, exclusive and notorious. Residence is not uecessary to make an adverse possession within the statute (Johnston v. Irwin, 3 8. and R 290). By the Act of 1851 (Ante) no person shall make entry or sue for lands after forty years from the time their right of action descended or accrued. The Act of 1855 provides that where there has been continuous possession of lands for thirty years it shall be presumed between the parties litigant other than the Commonwealth that the title thereof shall have been parted with by the Commonwealth (Act 27th April, 1855, Sec. 6 P. L. 369— Wilson v. Horner, 59 Pa. 166) and whenever title to real estate might have been claimed by the Commonwealth as unlawfully held by a corporation and has passed into the hands of a purchaser, who shall have held the same for twenty-one years without inquisition made on the part of the Commonwealth, the title of such purchaser shall be deemed indefeasible as to any such claim by the Commonwealth (bid). By Act of 22d April, 1856 (Sec. 1, P. L. 5382) no exception in any act respecting said Jimitation in favor of persons non compos mentis, imprisoned, femme covert, or minors shall extend so as to permit any person to maintain any action to recover lands after thirty years, since the right of entry accrued to any person within the excep- tions aforesaid. Any one affected with a trust by reason of his fraud the limitation begins to run only from the discov- ery thereof, or when by reasonable diligence the party defrauded might have discovered the same. When the 68 PRINCIPLES AND DECISIONS Hyectment.— Pennsylvania Cases. holder of title subject to a resulting trust permits the benefi- clary to occupy the land as owner, he shall derive no benefit from the lapse of time (Douglass v. Lucas, 63 Pa. 13). But no bona fide purchaser from him shall be affected thereby or be deprived of the protection of said limitation. By Act of 13th April, 1859 (Sec. 1, P. L. 603) no entry upon lands shall arrest the running of the statute of limitations, unless an action of ejectment be commenced therefor within one year thereafter, nor shall such entry and action, without recovery therein, arrest the running of the statute in respect to another eject- ment, unless it be brought within a year after the first shall have been non-suited, arrested, or decided against the plain- tiff therein. Tilghman, C. J., says in Pipher v. Lodge (48. and R. 315): ‘“ After a sale and before conveyance of the legal title the general rule is that the vendor is a trustee for the vendee, and while his possession can be reasonably supposed to be in accordance with the trust, it should be construed for the benefit of the cestwi qui trust, and consequently the act of lim- itations would have no operation, but where he who was the trustee openly disavows the trust, the case is different ; and especially where the vendor, after having delivered pos- session to the vendee, makes a lease to a third person in opposition to the title of the vendee, and the lessee enters and holds the possession. This is notice to the vendee that his title is denied, and if he suffers twenty-one years to elapse without prosecuting the claim, I see no reason why RELATING TO REALTY PRACTICE. 69 Kjectinent. — Pennsylvania Cases. the jury should not presume a disseisin in consequence of which the act of limitations would take effect.’? In McCoy v. Dickinson College (4S. and R. 304) Tilghman, C. J., says: “Title by warrant and survey has all the principal attri- butes of a legal estate, saving the right of the proprietaries and of the Commonwealth who succeed to them; it will sup- port an ejectment; it descends as real estate; it is to be con- veyed as real estate; it is subject to the rights of dower, and tenancy by the courtesy, but not to impair the rights of the Commonwealth. Until the patent issues, the legal title is in the State, and against the State or Commonwealth the statute of limitations has no force. From the nature of the case those who hold unpatented lands do not hold them adverse to the Commonwealth. This holding is under and with the consent of the Commonwealth, but as to all private persons the case is different, and would cause incalculable mischief if twenty-one years undisturbed possession should confer title and safety on holders of patented lands, but be of no avail where there is no patent.’’ As to a contest not between the Commonwealth and a defendant claiming under this statute, but between a private person plaintiff and a defendant with or without a warrant and survey in pursuance thereof, it has been held competent for the defendant to prove on the trial of the ejectment twenty-one years’ adverse possession. In Pederick vy. Searl, the defendant offered to show that he had built a house and barn, cultivated the land, raised grain, etc., and had fields within fence more than twenty-one years 70 PRINCIPLES AND DECISIONS Hjectment.— Entry on Land Barred by Statute. before the suit; evidence rejected by the Court below. The Supreme Court said: ‘‘The right of possession is acquired by twenty-one years’ possession, and this right is not only sufficient to support a defense, but is a positive title under which one may recover as plaintiff in ejectment. Why then was not defendant’s evidence received’’ (Pederick v. Searl, & S. and R. 289)? ENTRY ON LAND BARRED BY STATUTE. The Act of 1785, enacting that no entry can be made into lands nor suit brought after twenty-one years, must be construed in a confined or restricted sense. It seems certain if the holder of the legal title owns lands claimed by no one else he could make entry into the same not only after twenty-one years, but after fifty years, or for any unlimited time, but in order to be barred of his right, the right of some- one else must be set up as adverse to his right. In Overfield v. Christie (7 S. and R. 173-6) the Supreme Court says: ‘‘ If aman enters without pretense or title of any kind into land which he knows is appropriated, there is considerable reason to suppose that he does not mean to deny the title of the owner, but merely to occupy the land; but this presumption may be rebutted by proof that he set the owner at defiance. As to privity of trespassers, if one enters and commits a trespass, then goes off and another comes after him, I grant there is no privity between these persons, nor can the pos- session be said to be transferred and continued from one to RELATING TO REALTY PRACTICE. 7 jectuent.—The Llements of Adverse Possession. another.’? To make the statute available the possession must be in the person or a continuity of possession of differ- ent persons claiming from each other as grantee from grantor, or lessee from lessor, son from father, etc. It will not be available for the claimant under the statute to rely on a tacked possession of different intruders or trespassers to make up the twenty-one years’ adverse possession. Again, it is clear that as long as this claimant acknowledges any right or ownership of the holder of the legal title, his pos- session is not adverse, as he must hold against him and the world; and not a scrambling possession, but peaceable, yet hostile, with an ostensible intention to defend his pre- tended right, notorious, which is known to the world, or could be easily ascertained, that he claimed lordship over this domain. Tilghman, C. J., says: ‘‘ When possession has been continued for a number of years and has passed from hand to hand for valuable consideration, or by descent from parent to child, it has something respectable in it.’? Argu- ment of the plaintiff leads to this, that limitations can never avail in favor of a defective title unless one man lives twenty- one years, because everyone who enters under a defective title is a trespasser, and so being cannot by this doctrine transfer his possession to another or transmit by descent to his heir. If that be the case, there is little use in the act of limitations (Overfield v. Christie, Ibid). THE ELEMENTS OF ADVERSE POSSESSION. Again, the essential elements of adverse possession are an 72 PRINCIPLES AND DECISIONS Hjectment.—The Elements of Adverse Possession. actual, open, continuous and visible appropriation and occu- pation of the lands, intentionally hostile to and inconsistent with the rights and interests of the real owner (Blanchard v. Moulton, 63 Me. 434). When entry is made and the ouster of the real owner is complete, and the occupancy is replete with the essential elements of an adverse possession, then the statute of limitations begins to run (Thomas v. Marshfield, 13 Pickering’s 250) but not till then. It is set- tled law that when the statute commences to run against persons entitled to possession, the adverse possession of occu- pant begins, and the progress of the statute is not arrested by any devolution of ownership, or by any disability of the per- sons entitled to the possession occurring after the statute had begun torun. The limitation having unlawfully commenced against their alleged predecessor in the estate, its progress was not arrested by the devolution of ownership in case any occurred (DeMill v. Moffat, 49 Mich. 130). An occupant may hold adversely as to some and not to others. Possession cannot be adverse as to persons having no present right of entry (Portis v. Hill, 14 Texas 59). So the estate of a tenant for life may be acquired by adverse possession against a life tenant, which possession might not be adverse to the remainderman, because before the expira- tion of the life estate no right of possession would accrue to the remainderman. There could be no laches on his part, and when the life estate is gone he can still recover within the statutory period against a subsequent adverse holder of RELATING TO REALTY PRACTICE. 73 Hjectment.—Nothing Can Stop Running of Statute. the estate (Hall v. Vandegrift, 8 Binn 874). It may be stated in general that the possession of one tenant in com- mon is the possession of all, and one in actual possession cannot hold adversely to his co-tenant. Nevertheless it was held in Frederick v. Gray (10 8. and R. 182) ‘‘When one tenant in common enters on the whole and takes the profits of the whole and claims the whole exclusively for twenty- one years the jury ought to presume an actual ouster, though none be proven.’’ NOTHING CAN STOP RUNNING OF STATUTE. When the statute has once begun to run it shall never stop. The force of this maxim obtains by virtue of English authorities, and the Act (Pa.) of 1785 (2 Sm. L. 300) which statute in substance declares that no person shall have the right of action for real property after twenty-one years from the time his or her title to the same first descended or accrued, except as in said act provided. If the person is under no disability when the right to sue descended to him or her, then no subsequent disability, such as marriage, insanity, etc., arising afterward could stop the running of the statute thus started torun. Tilghman, C. J. (/Zall v. Vander- grift, § Binn 874) says: ‘It is the spirit of the act of lim- itations to allow twenty-one years from the time that a person might make entry to support an action, understand- ing always when the twenty-one years once begin to run they shall not be suspended by infancy, coverture or any 74 PRINCIPLES AND DECISIONS Hjectment.— Nothing Can Stop Running of Statute. other circumstance.’? This principle of law was settled as far back asthe twentieth year of Queen Elizabeth. In Stowell v. Zenah (Plowd, 356) the running of the statute is to be counted from the time of the ceasing or removing of the dis- ability which existed when the title first accrued ( Thompson v. Smith, 7S. and R. 210). If other disabilities accruing afterwards were to be regarded, as the descent of title upon infant females, and their marriage under age, in such cases they might succeed each other ad infinitum; the right of action might be saved for centuries. It was to prevent such results that the above principle of law was established at an early date, and for the same reason it is to-day followed in Pennsylvania. It is not necessary to show an actual occupancy by a defendant claiming in adverse possession under the statute. Possession may be (as in other cases) by tenants, agents or servants (Elliott v. Dycke, 78 Ala. 155). The occupancy of the land should be such as the nature of the premises will admit, and must be made apparent by some public act or notice inconsistent with his adversary’s ownership of the lands (Stephenson v. Wilson, 50 Wis. 95). Occupancy of land for mining and quarrying is in general sufficient to constitute an adverse possession the same as cultivation of the soil ; but occasional trespasses by persons avowing inten- tion to make adverse claim, disconnected trespass as cutting timber, stripping bark and the like is not sufficient to gain title by adverse possession (Rifener v. Bowman, 53 Pa. 319). RELATING TO REALTY PRACTICE. 75 Kjectment.— Estrepment to prevent Waste. When a usurper enters upon land he acquires pos- session inch by inch of the part which he occupies, and that the mere naked possession without color of title is adverse only to the extent of the enclosed land. Extent of possession of a person holding adversely under color of title is limited to the land described in the instrument under which he holds, if the description is correct and definite (Bristol v. Carroll, 95 ill. 93) otherwise his possession is limited to the land actually occupied (Jackson v. Woodruff, 1 Cow. N. Y. 276) but where the person is not holding under color of title, but relying on naked possession, his possession cannot be extended by construction beyond the boundaries of the land actually occupied by him, and is adverse only to the extent of his inclosure. In such a case the question as to the extent of the possession is often difficult of solution and depends to a large extent on the circumstances and nature and use of the lands in question. As to what are enclosures, rivers, mountains, ledges of rocks forming natural barriers, other sides being enclosed, have been held enclosures within the statute. ESTREPMENT—TO PREVENT WASTE. There are two other remedies incident to the action of ejectment, and which being closely connected therewith can be pursued in our courts during the pendency of the same; estrepment and actions for mesne profits. ‘¢Waste,’’ says Wharton, ‘‘ Vastum, a spoil made either in houses, woods, lands, etc., by a tenant for life or years to 76 PRINCIPLES AND DECISIONS Hjectment.— Estrepment to prevent. Waste. the prejudice of the heir or of the reversioner or remainder- man. Whatever does a lasting damage to the freehold or inheritance is waste. It is either voluntary or actual, which is an act of commission, as pulling down of houses, or it is permissive or negligent, which is a matter of omission only, as by suffering it to fall for want of necessary reparations.’’ To furnish relief for persons aggrieved by the destruc- tion of, or injury to real property, the Legislature has provided remedies for the redress of these wrongs. The writ of estrep- ment to stay waste, pending an action for the recovery of the premises, was given by the Statute of Gloucester, and then back as far as 1803 the General Assembly (in Pennsylvania) enacted, when ejectment shall be pending the Prothonotary or Clerk of Court in which action is pending, upon affidavit of plaintiff or persons knowing the facts that defendant is com- mitting waste, shall issue a writ of estrepment to prevent the same, without motion and in vacation (Act of 2d April, 1808, 4 Sm. L. 89, Sec. 2). By Act of 1883 (P. L. 79) when petroleum is produced from land in controversy in an action of ejectment, the Court (or law judge at chambers) where action is pending, on application of the plaintiff, may direct a writ of estrepment against defendant ; but before order is made affidavit and bond to indemnify defendant shall be presented to the court for approval. The Act of 1891 makes it lawful for persons having a contingent interest in realty, not in possession, to prosecute suit to prevent waste (Act of 8th June, 1891, P. L. 208). The Act of 1853 (P. L. RELATING TO REALTY PRACTICE. 77 jectment.—Estrepment to prevent Waste. 99, Sec. 3) provides that quarrying and mining and acts that do lasting injury to premises shall be considered waste. No writ of estrepment shall as aforesaid issue where mines were opened before institution of suit for recovering pos- session thereof until the next succeeding term to that which the writ of ejectment was returnable or until plaintiff shall have filed in the office of the Prothonotary an affidavit that the title or right of possession or part thereof of the premises is vested in him, provided that the Court shall have power to dissolve said writ on the defendant giving security to indem- nify the plaintiff against damage or loss. It was held in Dickinson v. Nicholson that a writ of estrepment for waste does not issue of course but must be grounded on an affidavit of actual waste done or permitted (Dickinson v. Nicholson, 2 Yeates 281). By the Act of 2d March, 1522 (Sec. 1, 7th, Sm. L. 520) it was made lawful for the owners of lands leased at any time during the con- tinuance, or after expiration of such demise and due notice to tenants to leave the same to apply to the Court of Common Pleas of said county in session or to a judge thereof in vacation for a writ of estrepment to prevent waste. This should be by petition presented to Court, or a judge thereof, verified by affidavit as to the acts of waste or despoilation (Heil v. Strong, 44 Pa. 264). And upon this petition the Court may grant the writ or arule to show cause why it should not be granted. During the early history of petroleum, and before the new mining enterprise had 78 PRINCIPLES AND DECISIONS Ejectment. —Mesne Profits. attained any significance, one Louis Peterson had leased a lot of ground owned by him in Allegheny County, adjoining the old Pennsylvania Canal, for the purpose of drilling for and manufacturing salt. The lease had been made in 1837, and about 1845 carbon oil or petroleum arose in the well in con- nection with the salt water, and the question before the Supreme Court in part was, were the lessees, Kiers e¢ al., who leased the premises for the production of salt only (giv- ing to lessor one-twelfth royalty) guilty of waste in severing the petroleum from the freehold. As remarked by Justice Woodward: ‘‘Since it was an inseparable consequence from the right granted to them from the landlord, their actual possession therevf of the severed chattel was in every sense a rightful possession, and because no right of possession existed in Peterson at the moment of severance trover will not lie. Iam for reversing the judgment. I hold Peterson entitled to compensation for the value of his oil, and I sup- pose a bill in equity for an account would be his most natural and efficacious remedy’’ (Kier v. Peterson, 41 Pa. 263). MESNE PROFITS. Another concurrent remedy here mentioned, viz., action for mesne profits, or profits that should have accrued to the plaintiff in the meantime since his right of action accrued, or for six years prior to the bringing of the suit, the bar of the statute of limitations preventing recovery back of that time. This action being defined by Wharton as ‘‘ An action RELATING TO REALTY PRACTICE. 79 Eyectment.— Mesne Profits. of trespass which is brought to recover profits derived from land whilst the possession of it has been improperly withheld, that is the yearly value of the premises’? (Wharton L. Dic). It was formerly brought after judgment in ejectment for plaintiff, the damages being nominal in eject- ment, except between landlord and tenant. But now by the Act of 1889 ‘‘ Whenever action of ejectment is pending for the recovery of real estate, the plaintiff or plaintiffs therein, or any person having such right of action, may as well before as after the termination of such action of ejectment institute an action for mesne profits against the defendant or defendants in such action of ejectment, or against any other person or persons who may be liable to such plaintiff or plaintiffs or other person having such right of action for such profits, but such action or actions for mesne profits shall not be proceeded with to trial, until the plaintiff or plaintiffs shall have recovered possession of the real estate in contro- versy (Act of Feb. 28, 1889, Sec. 3, P. L. 8). This suit is commenced in the same manner as other personal actions. Any tenant in common who has recovered in ejectment may maintain action for mesne profits against his co-tenant (3 Wills 118, 2 W. Bl. 1007). The legal right of action for mesne profits accrued during the action of ejectment was formerly lost by the death of the defendant and did not sur- vive, as the plaintiff had no remedy against his estate after the defendant’s death, because ejectment is a suit to eject him, and as there could be no ejectment by suit against him 80 PRINCIPLES AND DECISIONS Hyectment. —Mesne Profits. after his death the suit for mesic profits fell. But not so as to the death of the plaintiff. By the Act of 15th April, 1807 (Sec. 3, P. L. 511) ejectment does not abate by the death of either party, and it is now ruled that mesic profits can also be recovered. In this action the general issue as in all actions of tres- pass is ‘‘not guilty.’’ The statute of limitations bars all recovery beyond what profits accrued within six years pre- vious to the commencement of the action of ejectment, bar- ring disability. In this case the court says where the party is limited to a particular form of action or adopts it, all the general incidents of that action must attach. Upon any other construction it would follow that the case would be without limitation at all. lf the statute bars an action of tres- pass after six years in the case of mesne profits, there cannot be arecovery for more than six years (Hill v. Myers, 46 Pa. 15). In ejectment for land purchased at Sheriff’s sale on a judgment against the husband in whom was the legal record title, and the wife of the defendant in the execution is in possession and claims the land on the ground that she had furnished the purchase money under agreement with her husband that the deed should be made to her ; that he had subsequently made a deed of the property to her, which she had destroyed, and had agreed to make another deed to her in consideration of money which she had furnished for improvements, evidence to sustain defendant’s contention must be clear and convincing ; and if the judge be of opinion RELATING TO REALTY PRACTICE. 81 Hyectment.— Pennsylvania Statutes, — Miscellaneous. that it is insufficient to prevail against the legal title he should give binding instructions to the jury to find for the plaintiff (Williams v. Milligan, 183 Pa. 886). PENNSYLVANIA STATUTES. —MISCELLANEOUS. Act of 22d May, 1878 (P. L. 98). When an action is brought for purchase money of realty in the Common Pleas of a county, other than the one in which said real estate is situate it shall be lawful for the defendant on filing an affidavit that the question at issue involves inquiry into and adjudication of the title, boundaries, location, condition or value of said realty to apply to the said Court for a change of venue to the county in which said land lies, and it shall be the duty of the Court to grant said application as a matter of right, certi- fying the same in manner of like cases without delay to the proper county for trial. Act of 11th June, 1879 (P. L. 127). In all cases where real estate is sold by the Sheriff, Treasurer or Commissioners of any county in this Commonwealth, and any person other than the defendant as whose property the same may have been sold shall claim the title thereto and shall be in pos- session of the premises by occupancy, lease, coverture or otherwise, and shall desire to settle his right to said claim against the Sheriff’s vendee, it shall be lawful for such claim- ant to present his petition to the Court of Common Pleas of the county where the premises lie or to a law judge in vaca- tion setting forth that the petitioner or petitioners claim title to the premises in controversy: whereupon a rule shall be 6 82 PRINCIPLES AND DECISIONS Ejectment. —Pennsylvania Statutes. — Miscellaneous. granted upon the purchaser or purchasers at said respective sales, or on any person holding said Sheriff's, Treasurer’s or Commissioners’ title under such purchasers to bring an action of ejectment within ninety days from the service of said rule upon them or show cause why the same cannot be brought—returnable to any term or return day of such Court, to be served as a summons, returned and entered of record; also indexed with ejectments. When purchasers and inter- ested parties are resident without the county and the residence can be found the rule may be served by the Sheriff or any Constable in the county where said purchaser, etc., may reside, and when his residence is without the Common- wealth and cannot be found affidavit of said non-residence shall be filed of record, and then said rule shall be served by publication in weekly newspapers published within the county where said realty is situate for four weeks prior to the return day, and to be the same as personal service, and on failure of such purchaser to appear within ninety days after service and show cause as aforesaid, judgment to be entered against him or them, and no action thereafter for said premi- ses in said matter to be had. The Act of 24th June, 1885 (P. L. 152) amends the Act of 1879, which relates to the commencement of ejectment upon titles acquired by Sheriff's, Treasurer’s or Conmis- sioners’ sales, limiting the time within which such actions may be brought to ninety days from the time a rule to show cause why such action cannot be brought is made absolute, RELATING TO REALTY PRACTICE. 83 Hjectment.— Pennsylvania Statutes. —Miscellancous. instead of ninety days from the service of said rule upon such vendees as by the former act stipulated. PENNSYLVANIA STATUTES. MISCELLANEOUS. The Act of 2ist May, 1881 (P. L. 24) amends the Act of 14th December, 1863 so that in case where there has been one verdict and judgment thereon, or verdict and judgment against verdict and judgment between the same parties and the party in possession is desirous to have said suit ended, the parties remaining in possession of said controverted premises may enter a rule on the adverse party claiming the title, requiring said party to commence his sec- ond or third action within six months thereafter instead of two years as by the Act of 1863, or show cause why the same cannot be brought. Rule to, be entered of record in the case last tried between the parties and served and returned by the Sheriff as writs of summons are served. When the adverse party resides without the county wherein the premises are situate and his residence can be found, the said rule may be served by the Sheriff within the county where the said adverse party may reside, but if his residence be without the Commonwealth the parties entering the rule and an affidavit of non-residence of record shall cause pub- lication of the substance of the said rule in a weekly news- paper in the said county where the premises lie for four weeks prior to the return day of said rule, and notice thereof shall be served on said non-resident, and shall have the same 84 PRINCIPLES AND DECISIONS Hjectment.— Pennsylvanta Statutes. — Miscellaneous. effect as personal service, and so returned by the Sheriff; also provided that where the said adverse parties are non- residents or without the Commonwealth, the Court must be satisfied that they have had notice in fact of the said rule in time to appear and answer the same before judgment will be entered or rule made absolute. And if the said party be a corporation the notice is to be served on the president or other chief officer; and if said parties fail to bring said suit or show cause in six months after service of said rule, the Court to enter judgment or make the rule absolute against said defaulting party, which judgment shall be final and with the same effect as the second or third judgment and verdict would be if regularly rendered upon trial. The Act of 25th May, 1893 (P. L. 181) amends Act of 8th March, 1889 providing when persons notin possession of real estate claiming title, it shall be lawful for any person in pos- session to apply to the Court of Common Pleas, and a rule shall be granted on the person not in possession to bring ejectment in six months from service of rule upon him, or show cause why it cannot be brought returnable to any term or return day and served asa summons. When said claimants out of possession reside without the county where the land is, but within this State, the Sheriff of the county where the writ issues may execute the same, and when said claimants reside out of the State any person may serve notice of said application on such parties, and on affidavit and proof of such service the Court may proceed as effectually as if service RELATING TO REALTY PRACTICE. 85 Ejectment. — Pennsylvania Statutes. —Miscellancous. had been regularly made by the Sheriff and entered of record. The Act of 26th June, 1895 (P. L. 345) amends Act of 13th April, 1858 relative to service of writs in certain suits in ejectment, so as to extend the same to cases where claimants and mortgagees desire to bring ejectment suits for unseated or unoccupied lands when the adverse claimant or mortgagor does not reside in the county where the land lies, having no known agent having charge of such lands in said county. But before trial or ejectment it shall appear to the Court that the defendant had notice in fact of the suit in time to appear and defend, and if the defendant be a cor- poration the notice may be given to the president or other chief officer thereof. This supplement shall not apply to actions of equitable ejectment against vendees to enforce specific performance of agreements for the sale of land. By Act of 5th June, 1893 (Sec. 1 and 2, P. L. 79), when petroleum is produced from the land in controversy in an action of ejectment the Court, or law judge in chambers, in which said action is pending on application of the plaintiff may direct a writ of estrepment against the defendants and parties claiming under them to prevent further production from said land, the plaintiff te present with said application an affidavit showing the facts relied on and a bond approved by the Court or judge conditioned to indemnify the defend- ant for damages sustained by reason of such writ; to be dis- solved by the Court on application of interested party when 86 PRINCIPLES AND DECISIONS Ejectment.—Pennsylvania Statutes. —Miscellaneors. deemed proper and on conditions fixed at the discretion of the Court. Act of 13th June, 1888 (Sec.1 P. L. 89). Writ of estrepment to issue when unseated lands have been sold for taxes on petition of purchasers and affidavit that the own- ers, etc., have committed or have threatened to commit waste on the same at the discretion of the Court, that such writ may be dissolved at any time during the period estab- lished by law for the redemption by the owners on payment of redemption money, costs of writ, etc. The Act of 8th June, 1891 (P. L. 208) makes it lawful for persons having a contingent interest in real estate, but not being in possession of the same to commence and prose- cute suit either in law or equity to prevent waste to such estate or recover damages therefor, the same as he might or could do was said interest vested, and the person or persons having such interest in actual possession of the same ; pro- vided, that before any suit in law or in equity is commenced persons having such contingent interest shall apply to the Court of Common Pleas of the county where the land is situate for the appointment of a suitable person to take and receive the moneys that may be so received in any suit or suits, which person shall after recovery of judgment and before any money or property passes give such bond with surety as may be approved by the Court, and shall hold such money subject to the order of the Court. Such Receiver RELATING TO REALTY PRACTICE. 87 Ejectment. —Pennsylvania Statutes—Recapitulation. shall receive such compensation for his services as the Court may allow. Act of 2d May, 1876 (P. L. 95, Sec. 1). It shall be lawful for the plaintiff not less than fifteen days before trial to give notice to the defendant or his attorneys that he pro- poses to claim damages or mesne profits up to date of trial, and at which the plaintiff may recover so much as is not barred by the statute of limitations to time of trial as may be warranted by the law and evidence. Act of 11th June, 1879 (P. L. 125). Whenever an ejectment suit is pending for the recovery of real estate, the plaintiffs may, before or after termination of said ejectment, bring an action for mesne profits against any person or per- sons or predecessors in the title of defendants in said eject- ment, but such action for mesne profits shall not proceed to trial and judgment until the plaintiff shall have secured possession of the real estate in controversy. PENNSYLVANIA STATUTES—RECAPITULATION. Herein is given in recapitulation briefly some provisions by Pennsylvania statutes concerning ejectment suits prior to and since the Constituation of 1874: A tenant served must give notice to the landlord who may join as defendant. On failure of appearance judgment may be entered (Act of 1806, 4 Sm. L. 352). Also joint tenants and tenants in common may join as plaintiffs as in other cases (Act of 13th April, 1807, Sec. 8, 4 Sm. L. 476). 88 PRINCIPLES AND DECISIONS Ejectment.— Pennsylvania Statutes—Recapitulation. Ejectment for land sold for taxes on which no person resides may have writ served on purchaser of said lands. If he be not found in the county then notice may be given by pub- lication (Act of 29th March, 1824, 8 Sm. L. 291). In ejectment for land claimed adversely by any person or corporation not resident and not within the county where land lies the plaintiff may have writ served on any person within the county having charge of the land; but it must appear on trial that the defendant had notice in fact in time to appear (Act of 18th April, 1853, P.L. 467). If the adverse claimant of vacant land is out of the county and has had actual notice before trial it is sufficient; but not to apply to equit- able ejectment against vendees to enforce the specific per- formance of a contract (Act of 26th June, 1895, P. L. 345). When the title of the plaintiff in ejectment has changed by assignment after action is brought, the purchaser or assignee may prosecute said suit and the judgment enure to him, and such purchaser may be substituted of record by motion (Act of 6th April, 1850, Sec. 4, P. L. 591). But a purchaser of the title at judicial sale cannot compel the former plaintiff to retire from the suit, this act being only permissive (Longbine v. Piper, 70 Pa. 378). Ina pending suit executors and administrators, where the object is to enforce the payment of purchase money on land contracts, may sustain the action in their own names the same as the testator or intestate could do if living (Act of 9th April, 1849, Sec. 5, P. L. 526). This does not apply to the executor RELATING TO REALTY PRACTICE. 89 Ejectinent.—Pennsylvania Statutes—Recapitulation. of a vendee, and an action will not lie against the executor in his own name, but only applies to the executor of the vendor (Thompson v. (dams, 55 Pa. 479). On non-suit or verdict for defendant he may have a rule on the plaintiff to sue out a writ of error in one year or be forever barred from suing out a writ of error or other writ on such order of non- suit, verdict or judgment thereon, and also the defendant may have a rule to show cause why the plaintiff should not bring a second action of ejectment in one year, and if no good cause of delay be shown the rule may be made absolute, and in such case upon expiration of one year the plaintiffs to be barred from further action on same title (Act of 8d April, 1872, P. L. 33). Claimants in possession may rule purchaser at judicial sales to bring ejectment in ninety days from the time the rule is made absolute (Act of 11th June, 1849, P. L. 127). Where an action is brought for purchase money in a differ- ent county from that in which the land is situate that gave rise to the suit, on affidavit that the suit will involve adjudi- cation of the title, boundaries, value, etc., of said land, the venue may be changed to the county where the land is situate for trial (Act of 22d May, 1878 P. L. 98). When any other than the defendant claims title and is in possession who desires to settle his claim against the Sheriff’s vendee, he may petition the Court setting forth his claim, and a rule shall be granted on the purchaser to bring an action of eject- ment in ninety days, or to show cause why the same cannot 90 PRINCIPLES AND DECISIONS Ejectment.—Pennsylvania Statutes—Recapitulation. be brought, and on proper notice by personal service or pub- lication, as the case may require, if the purchaser fail to appear and show cause as aforesaid (Act of 11th June, 1879, P. L. 127) the Court to make the rule absolute and the judg- ment final. Of course if the Sherifi’s vendee brings his suit he can answer that he has brought suit and the rule should be discharged. Act of 1879 as before seen was so far amended by Act of 24th June, 1885 (P. L. 152) that the time for bringing ejectment does not expire till ninety days after the rule on said purchasers becomes absolute. And the Act of 8th June, 1891 (P. L. 208) makes it lawful for persons having a contingent interest in realty and not in pos- session to commence suit to prevent waste the same as if in possession, but before bringing suit said person having such contingent interest shall make application to the Court for a Receiver of any moneys recovered in consequence of such suit and to hold the same subject to the order of Court. The Act of 25th March, 1893 (P. L. 1381) amends the Act of 8th March, 1889 (P. L. 11) regarding a rule on a person not in possession to bring an ejectment suit in six months, as to service, so that when claimants out of pos- session reside out of the county, but in the State, the Sheriff of the county where the writ issues may execute the same, but if such claimants reside out of Pennsylvania any person may serve the notice of said application, and on affidavit and proof of such service the Court may proceed as if the same had been regularly made; also as to service of eject- RELATING TO REALTY PRACTICE. 91 Kjyectment.— Trustees Outside of Pennsylvania. ment writs the Act of 20th June, 1895 (P. L. 345) amends the Act of 13th April, 1858 and extends the same to cases where claimants desire to bring ejectment for unseated lands, when adverse claimant is out of the county where the land is and has no agent in charge, if the claimant had actual notice before trial of suit. TRUSTEES OUTSIDE OF PENNSYLVANIA. Ejectment cannot be maintained by a trustee appointed by the Court of another State in the room of a deceased trustee to whom land in Pennsylvania had been conveyed. In Williams v. Maus (6 Watts 278) this principle has been applied. In this case James West a citizen of Maryland, claiming the ownership of land in Columbia County, Penn- sylvania, in 1805, assigned and conveyed it to Pierce and McDonald of Baltimore for the purpose of selling it for payment of his debts. The defendant in this suit being in possession for a considerable time claimed it by adverse possession against said Pierce and McDonald, and they brought this ejectment in Columbia County where the land lies. Pending the action both plaintiffs died and on application to the Courts of Baltimore by creditors, Nathaniel Williams of that city was appointed trustee in place of the deceased trustees, declaring said trust property to be vested in him and the death of former trustees was suggested on the records of said suit and said Williams sub- stituted in the place, agreeably to the Act of Assembly pro- viding, that the writ of ejectment sha!] not abate by reason 92 PRINCIPLES AND DECISIONS Hyectment. — Trustees Outside of Pennsylvania. of the death of either plaintiff or defendant. On the trial the plaintiff showed patent from the Commonwealth and divers deeds, subsequent legal title in James West and his transfer to Pierce and McDonald, and then offered in evid- ence exemplification of the proceedings had in the Baltimore County Court duly authenticated showing the above stated deaths and the proceedings declaring legal title of said land to be in Nathaniel Williams as trustee. The defendant’s objection to the same being read in evidence was sustained by Louis, President Judge, and a bill of exceptions sealed. In the Supreme Court Kennedy J. said: ‘‘The evidence offered here was objected to on the ground that a Court of the State of Maryland had no authority to entertain such proceedings in regard to lands lying beyond her territorial limits, and therefore could make no order or decree that would affect the title thereto, or transfer it from him in whom it then remained to any other. It would certainly seem that no Sovereignty could lawfully claim to bind or change the right to real or any immovable estate lying with- out its territorial limits and had therefore no reason to expect that such a decree if made would be regarded by the Tribunals of the State Rei Site ; in short, it cannot be treated otherwise than as a mere nullity by those tribunals, consist- ently with a proper respect for their own authority, and the obligation which they owe to their own Sovereignty to maintain all its rights unimpaired.’’ The Court further declared that by the laws of Pennsylvania the title to realty RELATING TO REALTY PRACTICE. 93 Ejectment. — Trustees Outside of Pennsylvania. cannot be transferred even by the owner without writing made by him and signed by himself or his agent, lawfully authorized to act, except a sale made by the proper officers under judicial process, such as execution for payment of debts, or by a Court’s decree for special purpose authorized bv stat- ute, etc. Butinno case is any Court without the State author- ized to supply the place of a trustee of real estate lying within the State who has ceased to exist or is incapable of acting and of executing the trust from that or any other cause. ‘‘The title here transferred by West to Pierce and McDonald upon the death of Pierce became wholly vested in McDonald by right of survivorship and upon his death descended to his heir at law where it would seem to remain now.’’ Judgment affirmed. The laws of the State in which the land is situate con- trol exclusively its descent, alienation and transfer, and the effect and construction of instruments intended to convey it (Brine v. Insurance Co., 96, U. S. 627). In this case Justice Miller says : ‘‘On the other hand it is said that the effect of the sale and conveyance made by the Commissioner is to transfer the title of the real estate from one person to another and that all the means by which the title to real property is transferred, whether by deed, by will, or by judicial pro- ceedings are subject to and may be governed by the Legisla- tive Will of the State in which it lies, except where the law of the State on that subject impairs the obligation of. contracts. 94 PRINCIPLES AND DECISIONS Ejectment.—New York Decisions. We are of opinion that the propositions last mentioned are sound.”’ When two corporations of different States become by the co-operating legislation of those States a consolidated corporation, such consolidated corporation when acting in its corporate capacity in either of the States acts under the authority of the charter of that State, and the legislation of the other State has no operation beyond its territorial limits (Pittsburg State Line R. R. Co. v. Roschilds 4 Cen. Rep. 107; Watts v. Waddle 6 Peters 389; Watkins v. Halman 16 Peters 25). NEW YORK DECISIONS. Ejectment can only be maintained to recover possession of land wrongfully withheld (.V. 1. GC. & H.R. Co. 29 N.Y. St. Rep. 475). Ejectment will lie for the unauthorized use of land as provided in the deed (R. Church v. Schoolcraft 65 NV. Y. 134) and the action will lie when a right of entry exists and the interest is of such a character as can be held and enjoyed and possession delivered in execution of a judg- ment for its recovery (Rowan v. Nelsey 18 Barb 484). Where the right of entry exists and the interest is tangible so that possession can be given, ejectment lies (Jackson v. Buel 9 Johns 298) also ejectment lies against a city for land used ag a street under aclaim that the owner of the fec has no private right in the land (Strong v. City of Brooklyn 68 N.Y. 1). Notwithstanding that a lease for years is a chattel interest which goes to the personal representatives, ejectment RELATING TO REALTY PRACTICE. 95 Ejectment.— New York Decisions, lies to recover possession of the land demised (Olendorf v. Cook 1 Lansing 37). A clause ina lease, providing for its termination at lessor’s election upon default in payment of rent is a condition, and upon breach thereof, lessors may have ejectment to recover possession though no right of entry is reserved (Horton v. N. Y. RR. Co. 12 Abb. N. C30). Land subject to an easement or servitude may be recovered in ejectment ( Westlake v. Koch 29 N. Y. St. Rep. 283). This action will also lie for land under water granted by Com- missioners of the Land Office for the purpose of erecting docks, etc. (Champlain St. L. Co. v. Valentine 19 Barb 484) and for land encroached upon by waters of a mill dam (Beals v. Stewart 6 Lansing 408). But in general the action cannot be maintained for things lying merely in grant and not capable of being delivered as rents, water course, or a mere grant of privilege to erect a machine, the place being unde- fined (North T. P. Co. v. Smith 15 Barb 855). The thing must be tangible of which possession may be delivered by the Sheriff. An easement is not a title to land, nor an interest in land within the meaning of the statute (Child v. Chappell 9 N. Y. 246) and this action cannot be sustained against a person who builds upon the line of his property in such a manner that the eaves or gutters project over his neighbor’s land (Aiken v. Benedict 39 Barb 400; and see Vroom v. Jackson 6 Hun. 326) nor will it lie for a mere ease- ment or right to flow the land (JVilklow v. Lane 37 Barb 244). Tn an action to remoye a cloud from the title, as by havine 96 PRINCIPLES AND DECISIONS Ejectment. —New York Decisions. Receiver’s deed set aside, the remedy is ejectment (Bockes v. Lansing 18 Hun 88 and see 74. N.Y. 487). To recover under a purchase at Sherifi’s sale upon a judgment for debt, it is enough to show that the defendant was in possession at the time of the recovery of the judgment against him, and a continued possession in him from that time to the com- mencement of the suit, and that the plaintiff acquired the title of defendant under the Sheriff’s sale (Kellogg v. Kellogy 6 Barb 116; Dickenson v. Smith 25 Barb 102). The plaintiff must prove the existence of the judgment by production of a judgment roll duly filed (Townsend v. Wasson 4 Duer 342; Dickson v. Smith 26 Barb 103). Where by the terms of the will a devise is void the heirs at law may bring ejectment (Post v. Hover 33 N.Y. 593, aff. y. 80 Barb 312). That plaintifis may recover as devisees under a will, they must establish title in the testator even if defendants were without title. A possession for eight or ten years under color of title will entitle plain- tiffs to recover against a mere intruder (Jbid, and see Clute v. Voirs 81 Barb 511). The committee of the estate and person of a lunatic cannot bring in his own name an action to recover real estate belonging to the lunatic, before the committee’s appointment (Burnett v. Bookstaver 10 Hun 481). In ejectment a collateral relative claiming to be the heir of an intestate must show the descent of the intestate and him- self from a common ancestor, and the extinction of all those lines of descent which could claim before him. If a grantor RELATING TO REALTY PRACTICE. 97 Ejectment.—New York Decisions. conveys land to another, excepting a portion included in a highway, he may maintain ejectment against the grantee for encroaching upon the highway or exclusively occupying it (Etz. v. Daily 20 Barb 32). A person owning land, and also the fee of the adjacent street to the centre of the street, may maintain ejectment against a railroad company, which has intruded thereon, for his land and the adjacent street to the centre thereof, subject to the easement of the public (Gas Tight Co v. RR. R. Co. 11 Civ. Pro RR. 239). Possession of realty is prima facia evidence of the highest estate in the property, viz: seisin in fee (Hill v. Draper 10 Barb 454). Prior possession, though less than twenty years, under a claim of right is prima facia evidence of right and sufficient to put the tenant on his defense (Smith v. Lorillard 10 Johns 838). A plaintiff may recover upon proof of prior occupation and use without any proof of paper title in him- self and ouster by defendant, if defendant is in possession under an invalid title, or void tax sale (Hopkins v. Mason 42 How. 115; 61 Barb 469). In this action the defense of ad- verse possession must be pleaded ; it cannot be shown under a general denial (Hansce v. Mead 27 Hun. 162). One in possession of land under a contract to purchase the same may maintain ejectment against a stranger to the title who wrongfully enters and withholds possession (Murphy vy. Loomis 26 Hun. 659) but under a naked contract to pur- chase, silent on the subject of possession, purchaser acquires no right to the possession and no right of entry follows 7 98 PRINCIPLES AND DECISIONS Ejectment.—New York Decisions. (Kellogg v. Kellogg 6 Barb 116). Personal representatives having an estate in the land and being entitled to the possession may maintain ejectment for the same (Mosher v. Yost 83 Barb 277). An action of ejectment founded only upon adverse possession may be maintained even against the true owner (Barnes v. Light 116 N. Y. 34). As plaintiff must recover on the strength of his own title, he can take nothing by reason of defect in his adversary’s title ( Wallace v. Swinton 64 N. Y. 188). He may not recover upon a mere equitable title (Peck v. Newton 46 Barb 173; Murray v. Walker 31 N. Y. 899). A married woman who had actual possession of land held by her for her separate use, and who has been wrong- fully ejected may maintain an action in her own name to recover possession without joining her husband (Darby v. Callaghan 16 N. Y. 71) and her lessee also may maintain ejectment against the husband ( Vandervoost v. Gould 3 Trans. App. 57). An equitable title cannot prevail against the legal estate (Potter v. Sisson 2 Johns Cas. 321). The legal title must pre- vail at law against one having but an equitable interest (Jackson v. Chase 2 Johns 84). The legal estate will support an ejectment against a defendant who claims under an executory agreement to convey ( Whitbeck v. Dyo 3 Johns 422). An equitable mortgage cannot be set up to defeat the legal title (Lowell v. Parkhurst 4 Wend. 369). Under the Code it is sufficient to state in the complaint that the plaintiff has lawful title to the premises as owner in fee simple, and that RELATING TO REALTY PRACTICE. 99 Bjectment.—New York Decisions. the defendant has the possession and unjustly withholds the same from the plaintiff. It is not necessary to set forth the plaintif’s title (Walter v. Lockwood 28 Barb 228) that a certain person died seized in fee, in possession, and that the plaintiffs are his heirs at Jaw; that the defendant wrongfully withholds possession under claim of title is deemed sufficient under the Code (Garner v. Manhattan B. & L. Asso., 6 Duer 589). An answer which denies the defendant’s possession, or any demand by the plaintiff, or any withholding thereof, does not put in issue the title nor raise the question of adverse possession (Ford v. Sanvpson, 80 Barb 183). An adverse possession for twenty-one years must be specially pleaded (Hansee v. Mead, 27 Hun. 162). H 777 Yl nn 0 yh YM ee A (ZZ “Bee ae 3417 YOS ANG ADNVLINIHN! ID iy f z RY ay YY YEW |a70H a Me Y- — FELEL ayy) oe gor ~. KY (ONS G > Dn TOI ed ne ‘ NG INI9 4 3, The reader’s attention is ieee to the fact that the above diagram embodies the very pith of essence of the Second Book of Blackstone. RELATING TO REALTY PRACTICE, 517 Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common Next in order is the title to “things real” (Blac., B. II, Chap. XTII., 545). It is the means whereby the owner of lands hath the just possession of his property. The low- est degree of the title is the mere naked possession with- out any apparent right or pretense of right to continue such possession, which may happen when one invades the possession of another, by surprise or force, turn the lat- ter ont and occupy the land, termed disseizin, or after the death of the owner and before the entry of the lawful heir, remainderman, or reversioner by contrivance gets into possession and keeps out him who had right to enter, and drives him to his action to recover possession, or sometimes holds the possession adversely so long that the title which at first was nothing more than the mere possession of a squatter or intruder, by the running of time, the neglect of the true owner, and the bare asser- tion of the ownership by the new claimant, ripens into a perfect title in him who at first had no title at all. “The next step,” sayfs the learned commentator, “to good title is the right of possession,” which, though act- ual possession be lost, if the right still remains he may exert it by peaceably turning out the intruder, and tak- ing again possession of the land. Again, there may be in a person the mere right of property, the Jus. Proprietatus, without possession or even the right of possession; it may be on account of his own negligence, an act of his ances- 518 PRINCIPLES AND DECISIONS Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Copareenary and Tenancy in Common tor, or determination of a Court of Justice, by which the presumptive evidence of that right is strongly in favor of his antagonist who obtains at last the absolute right of possession, and this often obtained from the rightful owner of the tenement sleeping on his rights while the statute of limitations ran against him. Note.—In Pennsylvania an intruder who has held continuous, open, notorious and hostile possession for twenty-one years has good title except as against the Commonwealth, and after such possession for thirty years it is sufficient to establish title out of the Common. wealth as between the private litigants; but not as against the Commonwealth. But it is a maxim of law that no title is completely good unless the right of possession be joined to the right of property which is denominated a double right, and when to this double right the actual possession is also united, then there is according to the expression of Fleta juris et seisinae conjunctio, then only is title completely legal. Next we consider how title may be lost or acquired, for if one man gains a title it must be by another losing it,-as where the heir acquires by descent, the ancestor has first lost or abandoned his estate by death (Black- stone’s Com., 11 B., 198). Where the State gains land by escheat, the decedent has first lost by extinction of RELATING TO REALTY PRACTICE. 519 Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common hereditary blood. Where a man gains by occupancy, the former owner previously relinquished his right of posses- sion. Where one claims by immemorial usage, another has either, if the claim be just, parted with his right, a now forgotten grant, or has forfeited it by supine neg- lect by himself or his ancestors. The losing on the one hand, and acquiring on the other title to estates in things rea] are reduced by our laws (in general terms) to but two ways or methods, viz.: Descent, investiture by opera- tion of law; and purchase, where the title is vested in one by his own act or agreement; or in case of a will by his tacit agreement. The former is where a man (or per- son) on the death of his ancestor acquires his estate by right of representation, or by the intestate laws, as his heir at law, the heir being one on whom “the law casts the estate immediately on the death of the ancestor,” and so descending to the heir “‘is called the inheritance” (Blac., B. IL, Chap. XIV., 548). Bearing in mind that there is in the purely legal sense but two ways of acquiring realty, viz., by descent and purchase, the right to take lands by descent (as heir) depends upon the relationship by the blood of the ances- tor. This relationship is divided by law writers into two kinds, called lineal and collateral relations or kindred, to both of these classes of kindred the estate descends from the same stock or common ancestor, but the man- 520 PRINCIPLES AND DECISIONS Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common ner of descent differs in this, that the lineal inheritance descends in a direct line from the ancestor, or one from another, as from father to son or grandfather to grand- child, etc., while a collateral inheritance, although de- scending from the same common stock, or ancestor, and all have a portion of his blood in their veins, as brothers or sisters, nephews or nieces, does not descend in a direct line from the ancestor, and the kindred do not take the . one from the other. Without discussing at length the different canons of descent laid down by the common law we will mention but four of the seven rules mentioned therein which alone are in force by our statutes, the other three relat- ing to males being preferred to females and the eldest son being admitted before the younger, and that in col- lateral inheritances, male stocks shall be preferred to females, being the three rules’ last named, are not in force as law in Pennsylvania and so omitted. Of the other four rules still in force amorg our statutes is the first rule: That inheritances shall lineally descend to the issue of the person who last died actually seized, in infi- nitum, but shall never lineally ascend (there, however, being exceptions to this rule in our statutes). The fourth rule “being that lineal descendants, 7m infinitum, of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the per- RELATING TO REALTY PRACTICE. 521 Blackstone’s Things Real-—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common son himself would have stood had he been living.” The fifth rule being, “that on failure of lineal descendants or issue, of the person last seized, the inheritance shall de- scend to his collateral relations, being of the blood of the first purchaser, and the sixthrule being (subject to ex- ceptions of our statutes) that the collateral heir of the person last seized must be his next collateral kinsman of the whole blood (Blac., B. I1., Chap. XIV., 555-580). Besides title by descent we have as well, title by purchase as by escheat, by occupancy, by prescription, by forfeiture; and fifth, by alienation, this being the most common mode of conveying lands, or of acquiring title by purchase. As to the evidences that marks the manner and form that soleminizes alienations we mention that of conveyance by deed. A deed being a writing signed, sealed aud delivered by the parties, its requisites are parties able to contract and be contracted with, for the purposes intended by the deed. The deed must be founded upon good and sufficient . consideration. It must be written or printed, on paper or parch- ment. The matter must (or should be) legally and orderly set forth, with words sufficient to specify the agree- ment, and bind the parties, with First, the premises which may be used to set forth the number and names 522 PRINCIPLES AND DECISIONS Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common of the parties, and description of the property aliened, and Second, the habendum, which may determine what estate or interest is granted by the deed. Next follow the terms of stipulation, if any, upon which the grant is made, the reservation, whereby the grantor reserves some new thing to himself out of what he had before granted as the rendering the yearly sum of ten pounds or the like. Another of the terms on which the grant may be made is a condition which is a clause of contingency, on the hap- pening of which the estate granted may be defeated, as if the mortgagor pay the mortgage on the day fixed by the mortgagee for the payment of the mortgage debt, then the whole estate granted shall determine. Next follows the clause of warranty; whereby the grantor and his heirs warrants to the grantee the estate so granted. There are two kinds of warranty mentioned in Black- stone, now but seldom mentioned in our late works, viz.: Lineal warranty, and collateral warranty; but under our practice we have but two kinds in general use, to-wit: General and Special warranty; the former being a war- rant and a proffered defense of the title to the land against the grantor and his heirs, and against every other person lawfully claiming, or to claim the same or any part thereof; while a special warranty, is only a cove- naut to warrant and defend the title against the grantor’s RELATING TO REALTY PRACTICE. 523 Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common claim, or any person claiming by, through, or under him or them. It has been declared by the Courts of our State, that in case the title fails, or the grantor is made liable to the grantee by virtue of his warranty, the grantor can only be held for a sum equal to the real consideration paid for the realty, with interest, reasonable costs, expenses, dam- ages, etc., incurred in the necessary legal proceedings in the premises. Lastly follows covenants, and conclusion, the latter mentions the execution, and sometimes the date, but usually the date is at the commencement of the instrument, and last of all the signing, sealing, acknowl- edging and delivering of the indenture. A general warranty of title, if warantor does not have the title, is broken when made; but warranty of quiet and peaceable possession is not broken until the possession is disturbed, deeds being then writings, sign- ed, sealed, and delivered by the parties, and principally such writings as serve to convey realty from one person to another, are commonly called conveyances, which are either conveyances at common law or by force of statute. Conveyances at common law are either original convey- ances, which are the means whereby the estate first arises, or derivative (secondary) whereby the estate is originally created, enlarged, restrained, transferred or extinguished; original conveyances are feoffment, gift, 524 PRINCIPLES AND DECISIONS Blackstone’s Things Real—Tenants in Severalty, Joint Tenancy, Coparcenary and Tenancy in Common. grant, lease, exchange, partition. Derivative are release, confirmation, surrender, assignment and defeasance. Of the nature of these it is not our purpose in this chapter to speak and mention them here merely to maintain the order of the subjects of this discussion, bonds, recogni- zances, and defeasance, being deeds or obligations to en- cumber lands or to discharge such encumbrances. Again, there was also alienation by matter of record, as fines and common recovery, and, lastly, is that of alienation by devise or disposition by last will and testa- ment, which not being by descent, must, in a strictly legal sense, be by purchase. CHAPTER XVI. RULES OF PRACTICE IN EXAMINATION OF TITLES, LIENS, ETC. AS TO PROPERTY REAL. Although known in general to the profession of the law, are not always readily remembered or followed. Search, examine and inquire from source of title down to date of search for patents, deeds, agreements and other evidences of purchase or descent. See if these are so linked as to form a complete chain. First. Examine instruments as follows: Whether the deed or other papers were properly signed, acknowl- edged and attested, especially in case vendor or devisor executed by his mark, where the conveyance bears but a single Christian name, this, in general, is sufficient, as the law knows but one Christian name. Second. Whether the signature is same as in body of instrument, and attested by a subscribing witness. Third. Whether, when there has been no probate of will and the deed purports to be signed by the heirs or all of the heirs of a decedent, are the signatures really those of the heirs or all of the heirs at law? Fourth. Whether the instrument purporting to be executed in pursuance of a power of attorney, is sup- ported by a power shown of record. If it be a trustee 526 PRINCIPLES AND DECISIONS Rules of Practice in Examination of Titles, Liens, Etc., as to Property Real. who conveys through a letter or power, does that letter or power delegate a general discretion in the person receiving it contrary to law. Act 14 March, 1850 (P. L. 195). If the recital in the instrument shows a power of attorney to be of record or as being recorded, examine and see that it is actually recorded. A power to release the lien of a mortgage being of higher import and granting a larger discretion, than a power of attorney to satisfy it, should not be taken as included in a power simply to satisfy a mortgage. Fifth. If the deed is executed by a corporation, whether the corporate seal is affixed thereto, “it being,” says Blackstone, “an invisible body, cannot manifest its intentions; it speaks only by its common seal.” Signing of members shows only the assent of the persons signing; nevertheless the paper should be signed by the president and secretary of said body who ew officio affix said com-: mon seal thereto. Sixth. Whether wives or husbands (as the case may require) living at time of search, properly joined in conveyance made by such husband or wife. If one per- son alone signed deed, is such person unmarried? If wife signed deed, was she examined separate from hus- band, and does the acknowledgment show this? An acknowledgment by a married woman is a necessary RELATING TO REALTY PRACTICE. 527 Rules of Practice in Examinations of Titles, Liens, Htc.— as to Property Real—Description. part of the execution of her deed in Pennsylvania even as between the parties to it. Seventh. Whether there are erasures and interline- ations of material matters not noted and signed before delivery, by those against whose interest said changes were made. See if Notary or other officer affixed his of- ficial seal thereto and was the acknowledgment taken in the proper form, and where no official seal is used see that said officer sign and witnesses in his official ca- ‘pacity. DESCRIPTION. First. Whether description of land sought to be conveyed or encumbered corresponds with or is embraced by all conveyances or devises in line of title giving ade- quate data for a draft, and showing a complete enclosure. Where there is no plan on record from which the number of the lot can be obtained, in writing the descrip- tion in a deed, care and exactness should be exercised; First, as to the starting point, which should be so defi- nitely fixed that the same would clearly appear to inter- ested parties who go upon the ground to erect buildings or establish the monuments thereon: i. e. It would be too indefinite to say, “Beginning at a point forty feet from the southwest corner of Smith farm,” but should recite the direction from said corner, and also on what public road, street, alley, stream, or line, as the case 528 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Description. may be, said point of beginning was placed or located. Again, equal care should be taken in tracing the courses from the beginning. Thus it would generally be inaccu- rate to say, “thence in a westerly direction seventy-six feet to a point;” better that the deed read, “thence in a westwardly direction along said Vance avenue seventy- six feet to a point.” This would circumscribe the course within the bounds intended by the conveyance, while the former would give a latitude to the line of nearly ninety degrees variation, and instead of having a sure measurement of seventy-six feet, intended measure, as the width of the lot requires, it would perhaps fall far short of it where there was no mark on the ground to fix the terminus of said course. And so with the re maining boundaries of the lot. It would also be an im- perfect description if the deed should read, “fronting seventy-six feet on Vance avenue, thence in northerly direction preserving the same width of seventy-six feet, three hundred feet to Kelly alley,” even if the location of this front line could be definitely fixed. There must, as in the other example, be a lateral boundary to show how much the line varies. All these defects may be of small account where a plan is on record, but even then in subdivisions of lots in a plan these suggestions may become important, although the student may be familiar with the requisites herein named. Still, because matters RELATING TO REALTY PRACTICE. . 529 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Description of Lines in Deeds. well known are often neglected and not only students but old practitioners not caring to take the time or pains to be accurate, so indefinitely describe a tract or lot of ground that serious entanglements and often disputes follow, and for this cause we make the suggestions above mentioned, having regard also to monuments, courses, distances, and quantity of ground. In cases of dispute this rule in general obtains, to-wit: That quantity is never allowed to control courses and distances, nor courses and distances, monuments, and natural objects also referred te in the description, But when monu- ments disappear and the places they occupied cannot be found, then courses and distances, if plain, must govern; and where boundaries are doubtful, then quantity may in some cases suffice. (Warvell on Abstracts, 162; 55 Cal. 53.) DESCRIPTION OF LINES IN DEEDS. Lines of survey travel either north or south, due east or due west; or so many degrees or minutes or sec- onds either east or west of the due north or south line, running in a northerly or southerly direction. So in running a line or tracing it in a deed which is in an east- erly direction but not due east, it would be improper to write, “beginning thence east five degrees south,” but the deed should read, for exainple, “thence south 85 degrees east,” and in a line nearly due west, or in any course in 34+ 530 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Etc.— as to Property Real—Description of Lines in Deeds. a westerly direction it would likewise be incorrect to write in a deed, for example, “then west 2 degrees north,” but it should read, thence north 8&8 degrees west. Words “more or less” is in law understood to apply only to small excesses or deficiencies caused by varia- tions of compass, etc., “known as,” “all buildings there- on,” “to his or their proper use and behoof,” have no cumulative signification and left out of a deed as a rule deduct nothing from its force (Benson v. Humphreys, 12 Reporter, 591). Proprietors bordering on streams not navigable, unless restricted by the terms of the grant, hold to cen- ter of said streams; but bordering on navigable rivers by title from the United States hold only to the stream. bounded by roads, streets and alleys, hold to middle of said highway, subject, however to public easement in the same, Second. General and special warranty; the former being a warranty and offer by grantor to defend grantee and his heirs against every person who may afterwards claim by paramount title; and the latter special war- ranty being a covenant of non-claim as to himself, grant- or and those claiming by, through or under him. The words “grant, bargain and sell” by virtue of Act of 28th of May, 1715 (Sec. 6, 1 Sm., 95) are a covenant of seisin for quiet enjoyment and against encumbrances. RELATING TO REALTY PRACTICE. 531 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Wills, Deeds, Ejectments, Htc. Encumbrances are of two sorts: First: Such as affect title; and Second: Those which affect only the physical! condition of property. If the first exist when this cove- nant (“grant, bargain and sell’) is made, it is broken as soon as made, and the grantor is liable under it. But where, however, there is a servitude imposed upon the land visible to the eye, and which effects not title, but physical condition, although it may injure and decrease value of same, he, the purchaser, must be taken to have seen it, fixed his price in accordance with the encum- brance, and such covenants will, in such a case, be of no avail as against covenantor (Memmert v. McKean, 112 P.S., 815). WILLS, DEEDS, EJECTMENTS, ETC. First. Ascertain whether the estate was all parted with by the devisor, or whether a part descended to the heirs at law by failure of testator legally to express his intentions in the will. The rule that estates devised to surviving husbands or wives subject to defeasance in case of second mar- riage, as conditions in general restraint of marriage re- garded in law as against public policy, and therefore void, does not extend to special restraint as marriage to a particular person, or before reasonable age, or without consent, nor has it ever been extended to case of second 532 PRINCIPLES AND DECISIONS, ules of Practice in Examinations of Titles, Liens, Ete—- as to Property Real—Wills, Deeds, Ejectments, Etc. marriage of a woman, viz.: conditioned that widow shall not marry (Warvel on Abstracts, 264). In Commonwealth v. Stauffer (10 Barr, 355) Gibson, J., reversing the Court below in substance says: It would be extremely difficult to say why a husband should not be at liberty to leave a homestead to his wife, “without being compelled to let her share it with a successor to his bed” and strangers to his blood. Preambles in wills dedicating souls to God averring strength or weakness of mind or body are of no legal force. Whether testator, at the time of making his will, was of the age of twenty-one years, and the will signed or at- tested by testator by his mark at the end thereof, or by some person in his presence, and by his authority and express direction, proved hy the oaths or affirmations of two or more competent witnesses (Act April 8, 1833, P. L. 249). Second. Whether will or a deed was made to a body politic or to any person in trust for a religious or charitable use, one calendar month before decease of testator or alienor (Act April 26th, 1855, P. L. 332, Sec. 11). Third. Search for Sheriff’s sales; for County Treas- urer’s sales. RELATING TO REALTY PRACTICE. 533 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Wills, Deeds, Ejectments, Etc. Where paper title is doubtful or wanting, examine and inquire as to the possession, adverse, etc., payment of taxes, improvements, etc. As to whether adverse claimant depends on a tacked title, viz.: of possession of intruders adverse to each other tacked together to make up statutory period. Fourth. Adverse conveyances from present owner and all. former owners while any of these owned the land. Where there are two deeds of different dates from same grantor to different persons, and neither deed re corded within six months, the deed first recorded takes priority. Fifth. Ejectment suits against all the owners pres- ent and prior of said land while they owned it, back to time indefinite. Sixth. Inquire and ascertain if land was sold by grantor to other than present purchaser within ninety days prior to present sale or incumbrance, as every pur- chaser has ninety days in which to record his deed, and a prior bona fide purchaser without notice, although his deed was recorded last, but within ninety days, would take the title against the second purchaser (Act 19 May, 1893, P. L. 108). Search in U. 8. District Court for bankruptcy pro- ceedings against vendor or mortgagor, and search for bankruptcy proceedings under the Bankruptcy Act ap- 534 PRINCIPLES AND DECISIONS Rules of Practice in Hxraminations of Titles, Liens, Hte.— as to Property Real—Wills, Deeds, Ejectments, Ete. proved July 1, 1898. The trustee’s title relates back to the date of the adjudication and accrues as of that date (Conner v. Long, 104 U. 8., 228; 1 Sawy., 268). Deeds executed out of the Commonwealth of Penn- sylvania shall be recorded in Pennsylvania within six months from the execution thereof or otherwise ad- judged fraudulent against subsequent purchasers or mortgagors (Act 18 May, 1898, P. L. 109). Ifa deed be recorded in a city of Pennsylvania, from the first till the sixth class inclusive, see if the deed was registered by the City Engineer prior to the recording of the same by Acts 1887 (P. L. 204) and 1889 (P. L. 277). Exanine and inquire as to competency of parties to deeds or wills, with respect to infancy, coverture, alienage, mental capacity, disability and fraud. A deed executed by a person incompetent to contract or convey passes no title, even as against a purchaser for value without no- tice. So, also, a conveyance or devise to an alien enemy. The purchaser can only ascertain the competency of the parties by inquiries in pais and as to whether grantor has previously, within ninety days under our recording act, conveyed to another, is a pertinent inquiry for the grantee. In case where there is only a shadow of sus- picion of frand it is the safest way, for, even if there be no intention to deceive, an unrecorded prior deed made with but nominal consideration and thought to be can- RELATING TO REALTY PRACTICE, 535 Rules of Practice in Heaminations of Titles, Liens, Hte.— as to Property Real—Tax Titles. celled, may spring up and be recorded within the time limited by the statute to the injury and damage of the grantee. But such inquiry, although in the presence of witnesses, made of a fraudulent grantor who is insolvent would avail grantee no better return or satisfaction than a prosecution and possible conviction of the grantor for a misdemeanor in the Criminal Court (See Recording Acts and Maupin on Marketable Title to Real Estate, 181). Seventh. Search for surface, coal, oil or other mineral leases. TAX TITLES. Eighth. Whether land was at any time sold for taxes. Where title is acquired through sale for taxes, great care should be exercised, and all the proceedings that led up to the sale, carefully scanned to see if the law has been strictly complied with. But if all the proceedings are regular, time of re- demption gone, etc., a Treasurer’s sale gives some advan- tages to purchaser that other modes of acquiring title do not, viz.: That from its very nature a tax title has nothing to do with a previous chain, nor does it connect itself with it; the purchaser need go no further back than to his tax deed, as the former title can neither assist nor prejudice him, as the sale operates and takes 536 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Etc.— as to Property Real—Charges on Land and Liens. the land by a new created, paramount title, extinguigh- ing the old and all equities dependent upon it (News- wanger v. Gwynne, 13 Ohio, 74; 15, Ohio, 67). Examine tax duplicates or assessment rolls. See in whose name the real estate is, or was assessed. This may be important, especially where the title is claimed by adverse possession as well as in cases of lien searches, but as it often happens the name of the real owner does not appear in the tax duplicates it may then be necessary to search in the names of former owners, heirs, etc. If land is assessed in the name other than the real owner ascertain his name and search for unpaid, delinquent and other taxes on the land charged against him, and also for tax judgments and liens against the realty en- tered against, or appearing in the name of the person thus assessed. CHARGES ON LAND AND LIENS. First. A charge created on land by a testator or alienor must be either expressly declared, or fairly in- ferred, from ihe language of the will or other instrument. Mere directions to pay legacies and debts are not suffi- cient. But where land is devised, “after payment of legacies and debts,” or directing that these debts and legacies be first paid out of the real estate, such debts, etc., are charged upon the land and they become a lien. RELATING TO REALTY PRACTICE. 537 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Charges on Land and Liens. Sjace it is not the policy of law to encourage continuing liens monies directed to be paid by devises, are not a charge on the land unless testator clearly shows it in his will (Cable's Appeal, 91 Pa., 327). Second. If title comes through Orphans’ Court, whether there is surviving widow whose interest is charged upon the land, or if she be dead, have those legally entitled to recover the principal of her interest been fully paid? And is the uncollected dower due at the death of the widow also fully paid to the legal rep- resentatives or heirs? By Act 28th April, 1899, it is provided: That when by proceeding in Orphans’ Court, money has been charged upon real estate and interest on which is paya- ble to a widow, she may as often as the same becomes due and payable, apply by bill or petition to said Court for payment, whereupon such Court having caused due notice to be given to the owner of such realty proceed to make such decree for its payment out of the realty as shall be just and proper, provided, if the real estate be sold on a judgment de terris for recovery of said interest such sale shall not divest the lien of the dower. Third. Covenants running with land which are engagements by a grantee in a deed or lease to do. some- thing upon the land, respecting a thing in existence as part of the thing conveyed, viz.: An engagement to 538 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—E ceptions and Reservations. keep buildings let, in repairs, which bind all persons sub-letting (with notice,) the premises during continu- ance of original lease (Curwin on Abstracts, 63). EXCEPTIONS AND RESERVATIONS. Although of different legal effect, there being “no magic in words;” the words exception and reservation are often used as synonyms, but the former without any enabling words in the new conveyance retains all the strength of the old grant, while the latter, a reservation, depends entirely upon the enlarging terms of its creation to give it strength and force, an exception being a part of the old right kept back and not parted with, while a reservation is a new right created and taken back by the grantor at the time of the conveyance (Lilibridge v. Coal Co., 143 Pa., 298). An exception is always a part of the thing granted, but it is the whole of the part excepted. A reservation of all the oil would be an exception, while an exception of one-fourth of the oil would be a reservation (Kiser v. Reeser, 98 Pa., 1). Fourth. Charges or liens arising from partition in Common Pleas and partition by agreement, where by such agreement, owelty is charged on the land. ' Fifth. Recognizances in the Orphans’ Court to se- cure owelty in partition, look back to time indefinite or RELATING TO REALTY PRACTICE. 539 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Liens. at least twenty years; see if lien is divested by judicia! sale for payment of debts, etc. (Trickett on Liens). LIENS. First. Search for mortgages against each persou through whom title passed during time he owned land. Search for mortgages against the heirs of a decedent, who were living at his death, from decedent’s demise to time of search, as his heirs (or some of them) may have mortgaged their interest in the land of which their an- cestor died seized. Search and inquire for taxes against real estate sold at Sherifi’s sale or at Orphans’ Court or other judicial sale, and give notice to the officers or other per- sons selling the land, of the amount of taxes against the same, that the lien of these taxes may be discharged from the land and that the taxes may come out of the fund brought into Court for distribution (Act 22 May, 1895, P. L. 111). “No county, city, borough, township or school tax levied or assessed shall remain a lien on real estate for a longer period than three years from the first day of January in the year next succeeding that in which such taxes are due, unless the same be entered of record in the Prothonotary’s office of the proper county in which such real estate is situated.” No lien so entered or municipal 540 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete— as to Property Real—Liens. improvement claim shall remain a lien on realty longer than five years from entry unless revived by scire facias within that period and prosecuted to judgment, and no lien entered prior to May 4th, 1889, shall remain a lien on same longer than three years from date of passage of the amended Act of 1889 unless revived within same period (Act 4th June, 1897, P. L. 128). Agreements to mortgage, made upon sufficient con- sideration, on specified property, creates an equitable lien upon such property, and takes precedence of claims of subsequent purchasers and incumbrances, with notice of the lien (Jones on Liens, V. I, 52). Purchase money mortgages, although not recorded for sixty days, are a lien upon land mortgaged from the date of delivery, but lose their lien if not recorded within sixty days. Second. Search for judgments against vendor (or mortgagor) five years back if said person so long owned the land, if not, then five years back against all former owners within five years, But by Act of 1834 all judg- ments which at death of a decedent are a lien on his real estate shall so continue to bind such estate during term of five years from his death without revival. The lien of judgments rests on the constant construc- tion of the statute of Westminister II (C., 18) which made lands in England liable to execution, and from which RELATING TO REALTY PRACTICE, 541 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Liens. ° conclusion it was adjudged that the judgment itself was a lien, and by successive Acts of Assembly lands in Penn- sylvania are subject to execution, and here, as in Eng. land, the judgment is uniformly held to be a_ lien (Trickett on Liens, V. I., 203). Third. Search for judgments in U. S. District Court. But no judgment in this Court shall be a lien on realty in any county of Pennsylvania unless entered in - the Court of Common Pleas of county where land is situ- ate (Act 24th June, 1895, P. L. 247). The constitution- ality of this act is doubted. Fourth. Search for judgments in U. S. Circuit Court. Fifth. Search for judgments in Supreme Court. Liens in Supreme Court are rare, but may arise when process issues from itself. In such case the judg- ment, though the record be not remitted, is a lien on lands in the county whence it came (37 Leg., Int., 226). Sixth. Search for Mechanics’ liens. If there be buildings on land, inquire for such liens, not yet filed, six months back, which have preference to liens filed subsequent to commencement of building, if filed within six months from time work shall have been finished or materials furnished (Act 16 June, 1836, P. L. 695). Alse, whether sci. fu. on same has issued there- on, within three months from date of filing. 542 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Award of Arbitrators. AWARD OF ARBITRATORS. Seventh. Awards of Arbitrators are a lien on land from time of entry until reversed by appeal or satisfied (Act 1836, P. L., 722). But where plaintiff appeals from an award in his favor and recovers a verdict and judg- ment more favorable to himself, the lien of such judg- ment has no relation to the date of the award (Lentz v. Lamplugh, 12 Pa., 844). Eighth. Search for Municipal Liens. Extracts of amounts due from an accountant in any trust filed in the Prothonotary’s office, or office in which same is tiled, are made liens against the accountant from time of-entry till payment (Act 29th of March, 1832). Ninth. Liens of Commonwealth, embracing taxes due the State of Pennsylvania from a corporation, tax and fees due from Prothonotaries; taxes, collected by a County Treasurer, taxes collected by Sheriff, due to said Commonwealth, which are liens against sureties of these officers, although judgment only appears against princi- pals, are made liens by Act 30th of March, 1811, and its supplements. Tenth. Unsecured debts of decedent within two years after the decease of the debtor (Act 8th June, 1893, P. L. 392). RELATING TO REALTY PRACTICE. 543 Rules of Practice in Examinations of Titles, Liens, Ete— as to Property Real—Lis Pendens—Resulting Trust. LIS PENDENS Eleventh. It will be understood that the rule that a party purchasing pendente lite, is, in general, regarded as a purchaser with notice subject to all the equities of the person under whom he claimed and bound by decree made against the person from whom he derived title. But such rule applies only where such purchaser derives title from one of parties litigant, but cannot bind if he "claims by title paramount and in proceedings to which he is neither party nor privy, and by Act of 1856, to effect purchasers and mortgagees, names of parties, defendant must appear in ejectment indexes (Act 22d April, 1856, P. L. 532, Sec. 2). Twelfth. Search for collateral inheritance tax. RESULTING TRUST. First. A resulting trust, properly so called, says Gibson, J., arises where the purchaser of land pays the purchase money but takes the conveyance in another person’s name. Such trust may be established by parol, but clear and distinct proof is always required to over- turn the legal conveyance. Part of purchase money paid by another is a charge pro tanto on the land so de mised (Wallace v. Duffield, 2 8S. & R., 528). 544 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Htc.— as to Property Real—Money Paid Prior to Con- veyance—Recognizances of Sheriff. MONEY PAID PRIOR TO CONVEYANCE. First. Money paid prematurely by a vendee or be- fore receiving conveyance is charged upon estate in the hands of vendor. Liens for permanent improvements from mistake of occupant, and neglect of owner when labor of former has inured to benefit of latter who stands by, suffering the person in possession to make improvements and gives no notice of his title, he, the owner, by his ac- quiescence in the same gives rise to a lien on the land (Jones on Liens, 51-78). Act Sth June, 1881, empowers Court of Common Pleas to release lien against Sheriff’s or Coroner’s sure- ties lands on sale of the same if said Court is satisfied that sureties remaining after lien is released is sufficient after lien shall have been released (Act 1881, P. L. 81). RECOGNIZANCES OF SHERIFF. First. Recognizances of Sheriff as affecting land against sureties, look seven years down from date of recognizances for suits entered against said sureties (Act of 1803; Act of 1883, P. L. 168). Recognizances forfeited in Criminal Court liens also of costs, restitution, etc. Judgments entered same day. RELATING TO REALTY PRACTICE. 545 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Policies of Insurance— United States Special Tas. While, as between judgments entered on the same day there is no priority, the day being without fractions; but as between a judgmeut and deed, priority depends upon proof (Ladly v. Creighton, 70 Pa., 490). FOLICIES OF INSURANCE. Made payable to mortgagee in case of loss.—Exam- ine conditions of policy as to forfeiture in case of trans- fer, increase of hazard, ete. In cities and boroughs where water, gas, or electric light is consumed on the premises, purchaser should see that rent of same is paid before purchase. UNITED STATES SPECIAL TAX Examine each instrument required by the “War Revenue Law of 1898” to be stamped, which has been executed since July 1st, 1898, and see if the proper stamp properly cancelled, has been affixed to the deed or other document. Sec. 16 of said act provides that no such in- strument shall be held invalid for want of a particular kind of stamp, provided a legal documentary stamp de- noting a tax of equal amount shall have been duly af- fixed and used thereon. Schedule “A” provides that the tax on a deed, instrument, or writing where any lands, tenements or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to, or vested in the 35 546 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Lunacy. purchaser or other person by his, her, or their direction when the consideration or value exceeds one hundred dollars, and not over five hundred dollars shall be fifty cents, for a lease memorandum, or contract for hire, use or rent of land not exceeding one year twenty-five cents; exceeding one year and not over three years, fifty cents; exceeding three years one dollar. Mortgages, etc., ex- ceeding one thousand dollars and not over fifteen hun- dred dollars, twenty-five cents; on each five hundred dol- lars or fraction over fifteen hundred dollars, twenty-five cents on each assignment of such instrument same as for original; but Building and Loan mortgages are exempt from this special tax; for power of attorney to sell real estate twenty-five cents; and by schedule “B,” Sec. 30, War Rev. Law, the tax duty aforesaid shall be a lien or charge upon the property of every person who may die as aforesaid, for twenty years or until the same, within that time, shall be fully paid to and be discharged by the United States. LUNACY. In New York, upon the institution of proceedings to determine the insanity of a party, both the person and the estate of the party are considered to be within the exclusive custody and jurisdiction of the Court, and it follows that conveyances thereatter executed by the RELATING TO REALTY PRACTICE. 547 Rules of Practice in Examinations of Titles, Liens, Etc-— as to Property Real—Lunacy. supposed lunatic to one having notice of the lunacy pro- ceedings will, in such proceedings result in a determina- tion of lunacy, be absolutely void, and where one pur- chased real estate and took conveyance thereof with full knowledge that proceedings had been instituted in the Court of Chancery against the grantor as an habitual drunkard, and that a commission had been issued to in- quire as to his incapacity to manage his affairs, and that the Sheriff was then summoning a jury to try the inquisi- tion, the conveyance was set aside, with costs on bill filed by the committee of the person and estate of the drunkard (Griswald v. Miller, 15 Barb., 250). So a con- tract for sale of real estate executed by a person who has been, upon inquisition, found to be a lunatic and of whose person and estate 4 committee has been duly ap- pointed, being absolutely void, no action can be main- tained thereon by the committee, nor can the latter, by any act of his in ratifying or adopting it, without the authority and direction of the Court, make such a con- tract good (Fitsburg v. Wilcor, 12 Bush, 235). Generally, in New York, the deeds of insane persons executed before office found will be held to be voidable only and not void (Jackson v. Burchin. 14 Johns 124). As to conveyances executed by the lunatic or drunk- ard before the suing of the commission and which are over-reached by the retrospective finding of the jury, the 548 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Lunacy. inquisition is only presumptive, but not conclusive evi- dence of incapacity. Where the conveyance to a pur- chaser is so over-reached, the Court, upon good cause shown, may permit the purchaser to traverse the finding of the inquisition, upon his stipulation to be bound by the final decision upon the traverse. In Gensemer’s Estate, Davidson’s Appeal (170 Pa., 96) Joseph Gense- mer being owner of a farm in Lancaster County, joined by his wife, Susanna, April 1, 1878, conveyed it to Geo. Withers subject to a charge of $3,700 in favor of the grantors, interest to be paid annually to Joseph Gense- mer during his life and after his death to his widow during her life, then the principal to enter into and form a part of his estate. This charge thus remained for sev- eral years, when on 20th Aug., 1886, by deed duly exe- cuted and recorded, the husband and wife assigned the security to their grandson, Joseph Miller and his assigns. Sept. 20th, 1886 (one month after) on petition of Margaret Miller, danghter of Gensemer, proceedings swere commenced to have him declared a lunatic; a com- mission on decree of the Court issued to J. W. Denlinger, Commissioner. Here the proceedings stopped. On April 23, 1889, Joseph G. Miller, by deed, duly acknowledged, transferred to Sarah Davidson the charge on the land for consideration equaling its face value. Some time after this date, the wife, Susanna Gensemer, died. After- RELATING TO REALTY PRACTICE. 549 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Lunacy. wards Margaret Miller, without moving further in first proceeding, July 9, 1891, presented another petition averring her father to be a lunatic aud incapable of man- aging his business affairs. Court, same day, directed commission to issue to W. H. Roland, Esq. Inquisition found Gensemer a lunatic and that he had been such for five years prior to date of this finding, which was Aug. 6, 1891, and that he held no lucid intervals. On January 8 John Fry was appointed committee and gave bond. May 3, following, Sarah K. Davidson, with leave of Court, filed traverse to the inquisition; issue was of Oct. 10, 1892 framed, between her as plaintiff and commit- tee as defendant. June 6, 1894, rule to show cause awarded why traverse should not be quashed. Two days after, on motion of Counsel for Mrs. Davidson, rule on Committee to show cause why both Commissions and all proceedings thereunder should not be set aside. After hearing, second inquisition was stayed by Court, but Court declined to set aside inquisition as to first proceed- ings. As to first proceeding, no return day having been directed when commission issued and no return having been made thereto, Court considered it abandoned. From this decree quashing the traverse of second inqui- sition, Mrs. Davidson appealed. The ground of traverse by Mrs. Davidson was that according to the finding the insanity of Gensemer autedated the transfer of the se- 550 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Lunacy. curity to Miller and consequently was prima facie evi- dence against her right which depended upon the validity of Gensemer’s transfer to Miller. A material part of the finding is as to the length of time the incapacity existed. Statutory command to inquisitors was to inquire whether he was a lunatic; if so, how long. Finding that he was a lunatic and had been so five years back of the transfer to Miller prejudicially affecting it. This gave Mrs. Davidson standing as suitor to contest the finding. Every person aggrieved may traverse the same. She adopted remedy provided by the act and issue was framed; then Gensemer died. By no default of hers, it became impossible to proceed to judgment in that issue. Statute made no provision for the contingency, death ends inquiry because inquiry would be purposeless. We think Court right in holding that it had no further jurisdiction to proceed with traverse after death of al- leged lunatic. As it stood, prima facie, transfer to Miller was by a lunatic, a party not competent to make it.” Decree affirmed and appeal dismissed (170 Pa., 96). In Hoope’s Estate (174 Pa., 373) upon the probate of a will where the testator is shown to have executed it after he had been declared a lunatic, the burden is on the proponents to show that the will was executed at a lucid interval and when the testator had understanding and capacity to execute the will. RELATING TO REALTY PRACTICE. 551 Rules of Practice in Examinations of Titles, Liens, Etc.— as to PropertyReal—General and Special Warranties. Where, at the time of the execution of a mortgage, the mortgagor was weak, both bodily and mentally, but the evidence showed that he knew what he was doing, and two witnesses who testified against his competency, signed the mortgage as subscribing witnesses, the Su -preme Court sustained the finding that the mortgagor was competent to execute the mortgage. (Dahlem’s Estate, 175 Pa., 454, affirming S. C., 43 P. L. J., 34). GENERAL AND SPECIAL WARRANTIES. In Loyd v. Farrell (48 Pa., 78) a case in which Thos. Farrel, in July, 1854, in execution of an agreement exe- cuted a deed to G. L. Loyd of a tract of land in Blair County. One thousand dollars was paid in hand and Loyd’s judgment taken for the remaining sum of $5,000. Mr. Loyd alleged failure of the consideration, support- ing the judgments and the same were opened and Loyd let into a defence, the issue was as to whether considera- tion of judgment wholly or in part failed. The averred failure of consideration rested on alleged failure of title to the extent of two undivided thirds. This was denied and it was further answered, that if title were shown to have failed, as alleged, Mr. Loyd agreed to take the risk of title and therefore was not entitled to relief. The deed to Loyd from Farrell contained no general, but only 552 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Dte-— as to PropertyReal—General and Special Warranties. a special warranty and the usual words, “Grant, bar- gain and sell.” Under this state of facts, the Court be- low admitted oral testimony to show that Loyd bought the land at his own risk. Strong, J., says: “This testi- mony the Court submitted to the jury in connection with the agreement, and the fact that the deed was after- wards taken with only a special warranty, as evidence from which they might inquire whether Loyd had agreed to take the land at his own risk, and thereby precluded himself from setting up a defect of title as a defence to plaintifi’s claim on the bonds given some months afterwards for the purchase money. The agreement ex pressly negatived such assumption and the fact that the deed contained no more than a covenant of special war- ranty was no evidence of it, for such a covenant is all that the purchaser of a perfect title can claim. This fact should not, therefore, have been presented to the jury, as tending to prove an undertaking by the grantee to run the hazard of the title.’ Testimony was in direct con- tradiction of the written covenant with no evidence or allegation of mistake or fraud. Still more apparent it is that the case should not have been submitted to the jury when it is considered that the real consideration of the defendant’s bond was not the agreement, but the deed given in July afterwards That standing by itself pur- ports to assume a title, it is a grant of the land, not an RELATING TO REALTY PRACTICE 553 Rules of Practice in Examinations of Titles, Liens, Etc.— as to PropertyReal—General and Special Warranties. uncertain right in the land.” From above we infer a spe- cial warranty is good against equivocal oral proof and that a special warranty rebuts the presumption of inten- tion of purchaser to take the risk of the title as to words, “Grant, bargain and sell” in a deed in law, are made to imply a covenant that the vendor has not done or suf- fered any act whereby the estate granted by him may be defeated. In Lehman v. Given (177 Pa., 584) Sarah Given in 1879, had conveyed 400 acres of land to Paxton with general warranty and Paxton suld 305 acres of same to J. C. Lehman who, in part payment, gave a note for $720, which note was transferred to Mrs. Sarah Given. Before note matured, it was known that part of this land was claimed by another and Lehman refused to pay note and suit was brought on covenant contained in an agree- ment to refund if the title is defective. Supreme Court says, Mrs. Given’s deed of the Jand to Paxton contained a warranty of title and the protection it afforded extend- ed to his alienee. The note which Mrs. Given held repre- sented the price of 144 acres and $1,525 was the price of the whole of it. Mrs. Given wanted the money called for by the note and Lehman wanted protection to the amount of it against the claim of Griswald heirs. Under these circumstances the agreement was executed and note paid. If, prior to this transaction, there had been a re- covery by the Griswald heirs for half the land, such re- 554 PRINCIPLES AND DECISIONS ules of Practice in Heaminations of Titles, Liens, Ete. as to PropertyReal—General and Special Warranties. covery would have constituted a complete defence to action on the note, Without the agreement he might have recovered in an action on the warranty of title, the price of the land taken from him. The agreement was in the nature of a warranty of title and (Codwalader v. Tryin, 87 Pa., 322) may be regarded as a substitute for it with a restriction of liability to the amount paid on ; the faith of it. We conclude, therefore, that the plaint- iff was entitled to recover for the loss of the seventy- seven and one-half acres, the same that he would have recovered in an action for the breach of a formal war- ranty of title” A general covenant of warranty runs with the land and a remote grantee may recover against ° the covenantor in case of a breach (De Chanmont v. For- sythe, 2 P. & W., 507; Williams v. Beeman, 2 Dev. L.,483). A grantee in a deed containing general warranty, may recover from his grantor, the ratable value of that por- tion of the land, the title to which has subsequently failed, together with interest thereon (McClure v. Gam- ble, 27 Pa., 288; Hood’s App., 7 All. Rep., 137; Steinhausner y. Witman, 1 8S. &R., 437; Youngman v. Linn, 52 Pa., 416; Cor v. Henry, 32 Pa., 18). Even a parol agreement by vendor to refund purchase money on failure of title is enforcable by action (Close v. Zell, 141 Pa., 390). The detention of purchase money en account of breaches of the vendor’s covenant, is a mode of defence that is pecu- RELATING TO REALTY PRACTICE. 555 Rules of Practice in Examinations of Titles, Liens, Ete.— as to PropertyReal—General and Special Warranties. liar to our Pennsylvania Jurisprudence. Where there is a known defect, but no covenant nor fraud, the vendee can avail himself of nothing, being presumed to have been compensated for the risk in the collateral advan- tages of the bargain (Wilson v. Cochran, 46 Pa., 230). If it be a covenant of warranty it binds the grantor to defend the possession against every claimant of it by right and is consequently a covenant against rightful eviction. To maintain an action for breach of it, an evic. tion must be laid and proved not necessarily by judicial process or physical force, but by the legal force of an irresistible title until eviction. The covenant is part ot the consideration of the purchase money he agreed to pay and holding the covenant, he may not withhold the purchase money, but after eviction he has a right to have his damage deducted from the purchase money (Wood- ward, J., in Wilson v. Cochran, 46 Pa., 231). In Brown v. Dickinson (2 Jones, 12 Pa., 872) it was held, from authority by Bender v. Formbesger (4 Dall., 436) that the measure of damages in action on a covenant of warranty is the value of the land at the time of making the contract or the price paid for it. Sherwood, J., says, (Terriza v. Drabenstadt, 68 Pa., 402) “the rule laid down clearly appeared to have been that the jury should find for the plaintiff the value of the life interest of the widow, estimating the fee simple by the purchase money. 506 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to PropertyReal—General and Special Warranties. In Patterson v. Stewart (6 W. & S., 527) action on breach of covenant against incumbrances. (Error to District Court of Allegheny County). Plaintiff contended that the measure of damages should be the purchase money and interest since date of deed as the covenant against incumbrances was broken the moment it was made. But the Court, Greer (President), held, that the incumbrance was contingent as to any actual injury to plaintiff. It did not divest him of the possession or title of the prop- erty until final judgment was obtained. Previous to that time, the damage was merely nominal, but when the Sheriff’s deed was made, the title was absolutely di- vested and the damage no longer contingent, the plaint- iff was not bound to incur the expense of an ejectmen! and might easily abandon all claim to the property. From that time, then, he is entitled to interest on the purchase money. (Per Curiam.)” We think the prin- ciple of the District Court right, and we adopt it. By the breach of a covenant against encumbrances, the pur- chase money became instantly revendicable with interest except for any time during which purchaser may have been in the perception of profits, actual or potential, which could not be recovered by him. The conveyance vested exclusive ownership in the purchaser till divested by sale on the encumbrance and to profits in the mean- time, but purchaser’s possession was extinguished by the RELATING TO REALTY PRACTICE. 557 Rules of Practice in Examinations of Titles, Liens, Etc.—- as to Property Real—Collateral Inheritance Tax. Sheritf’s conveyance along with his seisin. From that time the use of the purchase money in the hands of the vendor, was without an equivalent; and the origina] vendee became entitled to interest for it in the shape of damages. Judgment A ffirmed. COLLATERAL INHERITANCE TAX. By the Act of 1887 (P. L. 79, Sec. 1) all estates, real, personal and mixed in Pennsylvania, whether the person die domiciled in the State or not, and all such estates situate in another -State or Territory, if such person dying seized thereof shall have his domicil within said State, which may pass either by will or under the intes- tate laws of said State or any part of such estate or in- terest therein, transferred by deed or grant made to take effect after death of the grantor to any person or corpo- ration in trust or otherwise, other than to or for the use of father, mother, husband, wife, children and lineal de- scendants born in lawful wedlock, or the wife or widow of the son of the person dying seized or possessed thereof, shall be and they are hereby made subject to a tax of $5 on every hundred dollars of the clear value of such es- tates, and at and after the sanie rate for any less amount to be paid to the use of the Commonwealth. Owners of such estates, executors, administrators, and sureties are only freed from liability for the amount of such liabili- 558 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Hte.— as to Property Real—Collateral Inheritance Taz. ties on settlement of their accounts by paying the same, but an estate of value less than $250 shall not be subject to this tax. The form of this Section is much the same as in the Act 1826 (9 Sm., 146) but essentially changed in this, that both by the Act of 22 April, 1846 (P. 489) and by our late Act of 1887 the rate or duty is now $5 instead of $2.50 on every $100 clear value of such estates as are liable to this tax. Under the Act of 1849 (P. L. 571) a father or widow enjoying a life estate with remainder over to collateral heirs at the decease of the life tenant was liable to an inheritance tax, the life estate was re- quired to be appraised and after deducting the value of the life estate the collateral inheritance tax on the re- mainder became immediately due and payable over to the Register of Wills. Ostensibly this act was passed with the end in view of preventing beneficiaries from de- frauding the state out of this tax by making the same sure while in the hands of the life tenant, but as the origi- nal design of these acts was not to impose the burden of a collateral inheritance tax on those in a direct line of relationship with the decedent, as imported by the word “collateral inheritance tax,’ the mischief of the act was greater than the remedy. This tax became at once pay- able, a lien on the land and interest producing long be- fore the remainderman derived any benefit therefrom. To cure this hardship came the aid of above named Act RELATING TO REALTY PRACTICE. 559 Rules of Practice in Haxaminations of Titles, Liens, Htce.— as to Property Real—Collateral Inheritance Tax. of 1887 providing that where there has been, or shall be, devise, descent or bequest to collateral relatives or stran- gers liable to such tax to take effect after the expiration of one or more life estates, or a period of years, “The tax on such estate shall not be payable nor interest begin to run thereon until the persons liable for the same shall! come into actual possession of such estate, by the termi- nation of the estate for life or years, and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid.” But the owner can pay the tax at any time before his taking possession on basis of value of the estate at time tax shall be paid, after deducting value of the life estate or estate for years and provided that the tax on real es- tate shall remain a lien on the real estate on which the same is chargeable until paid and owner shall make re- turn to Register of Wills within one year from death of decedent (Act 1887, P. L., 80). By Act 22 March, 1899 (P. L.) “In all cases where a collateral inheritance tax has heretofore been paid, or may hereafter be paid to the Register of Wills of the proper county for the use of the Commonwealth, and it shall afterwards be made to appear in the proper Courts that the estate is not subject to a collateral inheritance tax on account of lineal heirs being subsequently discov- ered, it shall be lawful for the State Treasurer to refund 560 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Form of Abstract. and pay over to the executor, administrator, or person who may have heretofore paid or may hereafter pay such collateral inheritance tax erroneously, the amount of such tax paid into the treasury.” FORM OF ABSTRACT. No. 1. A lot of ground in the 59th Ward of Pittsburg, Pa., beginning at a point on the north line of Esplen street, distant 50 feet from the easterly line of Primrose avenue. Smith plan, 59th Ward, Pittsburg, Pa., thence in an easterly direction along said line 50 feet to the cor- ner of lot No. 10 of said plan; thence in a northerly direc- tion along the line dividing lots Nos. 10 and 11 and par- allel with Primrose avenue 100 feet to an alley; thence in a westerly direction along south side said alley 50 feet to the dividing line between lots No. 11 and 12: and thence in a southerly direction in a line parallel with Primrose avenue 100 feet to said Esplen street, the place of beginning—being lot numbered 11 of said plan. (This abstract being made in pursuance of a written agreement for the sale of said lot from J. Williams to Jas. White, consideration $1,000, deed to be made when RELATING TO REALTY PRACTICE. 561 Rules of Practice in Examinations of Titles, Liens, Hte.— as to Property Real—Form of Abstract. the title to the same is examined and passed by compe- tent attorney or other duly qualified person). Plan shown at No. 8 below. No. 2. Commonwealth of | Enrolled Pat. Bk. 7, p. 198. Pennsylvania | Dated Sept. 24, 1772. To ‘Consideration 57 pounds. Abner Brown. Recorded Sept. 30, 1772. For 100 acres (and allowance for roads 6 per cent.) in .... Tp., Allegheny County. “Cantos Run Tract,” and includes No. 1 in this abstract. No. 3 Deed Book A, p. 104. Dated Feb. 1, 1797. Abner Brown Consideration $1,000. To Habendum, whole in fee simple, August Zoon. Warranty, general. Acknowledgment, single, Feb. 2, 1797. Recorded Feb. 14, 1797. Conveyssameas in No. 2 and includes lot described in No. 1 of this abstract. Query—Was Abner Brown mar. ried or single? 36 562 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Form of Abstract. No. 4. ) Will Bk. 1, p. 5. Will dated 5 Sept., 1828. August Zoon Death, August Zoon, Sept. 28, 1828 By Will Probate of will, Oct. 1, 1828. To Devise, “I give and devise unto my : r two children, Peter and Margaret Peter Zoon Zoon, being my only children now and living, all my farm on which I now Margaret Zoon. live, in Allegheny Co., Pa., of about 100 acres.” See partition at O. C. No. 2, Sept. T., 1837. No.5 (Partition Proceedings). Orphans’ Court of Allegheny In Re Partition of County. the estate of August No. 2, Sept. T., 1887. Zoon, deceased. 1 J Partition Dkt., Vol. 2, p. 29. The petition of Peter Zoon was presented reciting August Zoon’s death, September 28, 1828, leaving no widow, but two children of full age, Peter and Margaret Zoon, being all of the heirs of the said August Zoon, showing that the said August Zoon died seized in fee sim- ple of the tract of land described at No. 2 of this ab- stract. RELATING TO REALTY PRACTICE. 563 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Form of Abstract. Prayer of petition granted ; inquest awarded return- able next term, and appraisement of said tract and the purparts into which the same was divided. Notice of in- quisition duly served on Margaret Zoon by the Sheriff. Return of inquest dividing the land into two purparts showing thenumberof acres(50 acres more or less) in each, and value of each—viz.: “A” $1,600 and “B,” $2,200, sign- ed by a jury of twelve men and the Sheriff. Order of Court confirming inquisition and return Nisi and order- ing it to be filed, by the Court. Also diagram showing purparts. Heirs agree to the absolute confirmation of in- quest and return and waive issuing and service of rule to come into Court and accept or refuse the real estate at the valuation by said inquest and that the purparts shall be allotted by the Court to each of the heirs as fol- lows: To Peter Zoon, purpart “A,” 50 acres more or less, awarded at valuation of $1,600, and purpart “B” awarded Margaret Zoon at valuation of $2,200, she to enter into recognizance to pay said Peter -Zoon $300 difference in valuation of said purparts so as to make them equal and hereby accepting the same, etc. Final decree confirming partition, costs and owelty receipted for.. 564 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Form of Abstract. No. 6. Deed Book, Vol. 4, B, p. 482. Quit Claim Deed. lc Dated Dec. 12, 1844. Peter Zoon and Sarah, his a . Consideration, one dollar. H d i . et + Gowash abendum, a fee simple estate (Nee Zoon). Acknowledged properly by husband and wife Dec. 13, 1844. J Recorded Dec, 18, 1848. Quit claim to the 50 acres south end of said farm being part of the August Zoon farm and the same purpart which was allotted to the said Margaret Zoon, since in- termarried with Sowash. No. 7. ]} Deed Book Vol. 450, p. 389. Dated June 6, 1881. Consideration, $4,000. | Habendum, “To him and his heirs Margaret Sowash and John Sowash, her husband, forever.” To Warranty, general. James Smith. | Acknowledged legally by said wife | and husband June 6, 1881. J Recorded June 6, 1881. Conveys a tract adjoining the Forty-second Ward, Pittsburg, Pa., beginning at southeast corner of said Zoon RELATING TO REALTY PRACTICE. 565 Rules of Practice in Examinations of Titles, Liens, Htce.— as to Property Real—Form of Abstract. tract, thence north 2 degrees, east along jine of said farm 250 feet to a point on Hart Alley, thence westerly along said alley 450 feet to the line of other lands of first party, thence south 2 degrees west along said tract to Moss Al- ley, and thence in an easterly direction along said alley 450 feet, more or less, to southeast corner of said tract, the place of beginning, being part of the same tract which Peter Zoon et ux by quit claim deed recorded in D. B. Vol. B. 4, p. 432, granted and conveyed to Margaret So- wash. Query—Does the conveyance at No. 7 include all of lot No. 11 as shown in plan as recorded. 566 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Hie.— as to Property Real—Form of Abstract. = CeO Sin 2 ates, LUE <7 REA 3 NA eS oy ir Sey SSS < a yw wn % Fas 7s 8)" ]E taal 4 n& KY Wes EY SOW Bs ewe TH, ie 8 2) sO OD x Qa = F9PLEN &FT ry gor «ry : = 5 I - t 2, 18/2. Rdhe| 7 | 93 |- I. z . 8 ~»|"o | ‘|: a eee ee & >| A. : Scarce Roo-/" Ste WEY Q eee wrk oe ' ser WARD ee OB ABTA pirrs ; Tan of lots 59th Wd, Pittsburgh, Po., showing J. Williams lot No. 11 to be poppet Te bee White, to whom abstraot of title to said lot is furnished as above. RELATING TO REALTY PRACTICE. 567 Rules of Practice in Examinations of Titles, Liens, Etc.— as to Property Real—Form of Abstract. Jaimes Smith, et ux, To Eli Jones. No. 9. Deed Book 482, p. 69. Dated Sept. 21, 1890. Consideration, $1,500. Habendum, “To him and his heirs forever.” Warranty, general. Acknowledged properly by said hus band and wife Sept. 21, 1890. Registered in Pittsburg, Sept. 25, 1890. Recorded Oct. 1, 1890. Conveys lots 11 and 12 in J. Smith plan, Fifty-ninth Ward, Pittsburg. Eli Jones | To J. Williams. | J No. 10. Mort. Book 653, p. 482. Dated April 21, 1891. Acknowledged 23 April, 1891. Recorded 23 April, 1891. Amount, $1,000. Interest, 6 per cent., payable quar- terly with 15 day Sci.Fa. Due April 21, 1892. Covers lots 11 and 12, J. Smith P. Fifty-ninth Ward, Pittsburg, Allegheny Co., Pa., being the same property 568 PRINCIPLES AND DECISIONS Rules of Practice in Hxaminations of Titles, Liens, Ete.— as to Property Real—Form of Abstract. which James Smith et wx, by deed dated Sept. 21, 1890, recorded in deed book 482, p. 69, granted to Eli Jones. No. 11. J. Williams | Sci. Fa. Sur. mortgage v. | No. 520, Sept. T., 1891. Eli Jones. J Mortgage recorded M. B. V. 653, p. 432. Returnable to first Monday of August, 1891. Sci. Fa. served on defendant and appearance July 15, 1891. Affi- davit of claim filed and notice served on defendant’s at- torney and uo affidavit of defence having been filed, judgment entered August 30,1891. Sec. Reg. No. 12. Lev. Fa. No. 205, Dec. T., 1891. J. Williams Sur. No. 520, Sept. T., 1891. ve Real debt balance, $878.50. Eli Jones. Interest from June —, 1891. Costs, $53.05. Certified by Sheriff of said County, that he, by virtue of above writ after public notice, according to law, of the time and place of sale did, on Monday, Dec. 1, 1891, at 10 o’clock, A. M., at the Court House said city, expose said described premises to sale by public vendue or outcry and then and there sold the same to J. Williams for $64 which sum he has applied to taxes $10.95 and costs $53.05. | RELATING TO REALTY PRACTICE. 569 Rules of Practice in Examinations of Titles, Liens, Ete— as to Property Real—Judgments and Certificates. No. 18. ‘) Court Common Pleas No. 1. Jas, F. Richards, Sheriff’s D. B. V. 6, p. 523. Sheriff, Date of Judgment, Aug. 30, 1891. To Acknowledged Dec. 10, 1891. J. Williams, Recorded Jan. 1, 1892. Consideration $64. Sold as the property of Eli Jones and conveys lots 11 and 12, J. Smith plan, Fifty-ninth Ward, Pittsburg, Pa. Plan Book Vol. 10, p. 184. De@bt wseatice esac wteeen $878.50 Sold on Lev. Fa. No. 205, Sept. T., 1891. SCHEDULE “C,” Part 1. JUDGMENTS AND CERTIFICATE. Court Common Pleas, Allegheny Co., Nos. 1, 2 and 8 J. Williams, judgments against for five years prior to June 1, 1898. Plaintiff, Peter Smith, D. S. B. No. 5 Jan. Term, 1892, date 23 Dec., 1891, $500. Satisfied. Plaintiff, Alex. Beech, D. 8. B. No. 185, Feb. Term, 1896, date 2 Jan., 1896, $6057. Satisfied. 570 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Etc.— as to Property Real—Judgment Certificate. Plaintiff, Wm. Kramer, No. 148, Dec. Term, 1897, date 2 Nov., 1897, $1,262.12. Satisfied. Part 2. J. Williams, judgments Court Q. S., five years last past. Commonwealth v. J. Williams. No. 4, Sept. Sessions, 1894, recognizance $300. Said J. Williams having paid amount recognizance $300 into Q. S. Court, same is satisfied in full. Part 3. J. Williams, judgments, Orphans’ Court. No. 6, June T., 189—date July, 189—$144.02. This judgment satisfied in full. Part 4. J. Williams, judgment in U. S. District Court five years past, None Found. Part 5. J. Williams, judgments in U. 8. Circuit Court. five years past, None Found. JUDGMENT CERTIFICATE. I do hereby certify that having made a careful search in the general indices for judgments in Nos. 1, 2 and 3, Common Pleas of Allegheny County...... and in Court RELATING TO REALTY PRACTICE. 571 Rules of Practice in Examinations of Titles, Liens, Htc.— as to Property Real—Judgment Certificate. Q. 8., in Orphans’ Court, in U. S. District Court, and in Circuit Court of U.S. for five years last past against J. Williams I find no judgment unsatisfied except as in above schedule set forth. J. 8. B., Atty. SCHEDULE “D.” Part I. Adverse Conveyances by “Abner Brown,” from Sept. 24, 1772 to Feb. 14, 1797, and six months after. Deed Book Vol. Grantee. Property. A. Page 104. August Zoon—100—‘A.—Tp. Land in chain. Mortgages by same for same time. None open and unsatisfied. Sheriff’s deeds and ejectments vs. same for same time. None affecting our property. 572 PRINCIPLES AND DECISIONS Rules of Practice in Examinations of Titles, Liens, Ete— as to Property Real—Judgment Certificate. Adverse Conveyances by “August Zoon,” from Feb 1, 1797, to Sept. 28, 1828. No deeds; property in chain conveyed by will of August Zoon to Peter and Margaret Zoon. Mortgages by same for same time. None open and unsatisfied. Sheriff’s deeds and ejectments vs. same for same time. None affecting our property. Adverse Conveyance by “Peter Zoon,” from Sept. 28, 1828, to Dec. 13, 1848, and six months after. Deed Bk., Vol. B. 4, page 482. Margaret (Zoon) Sowash. 50—A.—Tp., includes property in chain. Mortgages by same for same time. None open and unsatisfied. Sheriff’s deeds and ejectments vs. same for same time. None affecting our property. Adverse Conveyances by “Margaret Zoon,” “Margaret Sowash” and “John Sowash,” from Sept. 28, 1828, to June 6, 1881, and six months after. D. B. Vol. 450, page 389, James Smith, 6 A. in— Tp. includes property in chain. Mortgages by same for same time. None open and unsatisfied. Sheriff’s deeds and ejectments vs. same for same time. None affecting our property. “RELATING TO REALTY PRACTICE. 573 Rules of Practice in Examinations of Titles, Liens, Ete.— as to Property Real—Judgment Certificate. Adverse Conveyances by “James Smith,” from June, 1881, to Oct. 1, 1890, and six months after. D. B. Vol. 482, page 69, Eli Jones. Lots 11 and 12 in J. Smith plan, Pittsburg, formerly —— Tp. includes property in chain and other conveyances not. affecting our title. Mortgages by same for same time. None open and unsatisfied. Sherifi’s deeds and ejectments vs. same for same time. None affecting our property. Adverse Conveyances by “Eli Jones,” from Sept. 1890, to April 21, 1892. No deeds, property in chain sold by Sheriff. Mortgages by same for same time. M. B. Vol. 653, page 432, J. Williams, amount $1,000 —Default having been made in payment of interest, said mortgage was foreclosed and property covered by same was sold to plaintiff. Sheriff’s deeds and ejectments vs. same for same time. None except in chain. 574 PRINCIPLES AND DECISIONS Rules of Practice in Haaminations of Titles, Liens, Hte.— as to Property Real—Certificate. Adverse Conveyances by “J. Williams,” from Sept. 1891, to date. No deeds during this time affecting our property. Mortgages by same for same time. None open and unsatisfied. Sheriff’s deeds and ejectments vs. same for same time. None affecting our property. For Judgments, see Judgment Certificate. CERTIFICATE. I do hereby certify that I have made a careful exam- ination of the indices to the records in the offices of Regis- ter, Recorder and Prothonotary in and for the County of Allegheny, Pennsylvania, for the respective periods of time and I find no adverse conveyances, no unsatisfied mortgages, no Sheriff’s deeds nor ejectments affecting the title to the property described at Number I. of this Abstract, except those set forth in above certificate. CHAPTER XVII. TRUSTS AND TRUSTEES OF REALTY, The term trust means “A thing committed to one’s faithfulness,” or “An obligation upon a person arising out of a confidence reposed in him to apply property faithfully and according to such confidence.” “In its | popular and broadest sense,” says Perry, “it embraces a multitude of relations, duties and responsibilities—- Thus, executors, administrators, guardians of infants and lunatics, assignees in insolvency, bailees, factors, agents, commission merchants and common carriers as well as the officers of public and private corporations all of whom exercise a kind of trust. Trusts were derived from the Fidei Commissum of the Romans and under the earlier Roman law, the dis- charge of duty by the trustee depended wholly on his faith or honor, but in the time of Justinian, some prog- ress was made in the direction of holding the haeres fiduciarius to a proper accountability. “The origin of trusts or rather the adaptation of them to the English law,” says Mr. Lulin, “May be traced in part, at least, to the ingenuity of fraud. By the interposition of a trustee, the debtor thought to withdraw his property out of the reach of his creditor, the freeholder to intercept the fruits of tenure from the lord of whom the lands were held, 576 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty. and the body ecclesiastic to evade the restrictions di- rected against the growing wealth of the Church by the Statutes of Mortmain,’ and also the natural anxiety of mankind to acquire that free power of alienation and settlement of their estates which, by the narrow policy of the common law, they had hitherto been prevented from exercising.” “The parents of uses and trusts were fraud and fear, and a court of conscience was the nurse” (Lulin on Trusts, 1). A trust is merely what a use was before the statute of uses. It is an interest resting in conscience and equity and the same rules apply to trusts in chancery (equity) now which were formerly applied to uses (Fisher v. Fields, 10 Johns, 505) both terms are fre- quently used. The party holding the thing is called the trustee and the party for whose benefit the right is held is called the Cestui que trust or by a better term, the bencficiary. Sometimes the equitable title of the benefi- ciary, sometimes the obligation of the trustee, and again, the right held is called the trust, but the right of the ben- eficiary is the trust. The obligation of the trustee re- sults from the trust and the right held is the subject mat- ter of the trust, neither of these is the trust itself. Al- together they constitute the trust (2 Bouv. L. Dic., 753 Trust). Trusts are divided into several sorts or kinds—- Active or special trusts are those in which the trustee has some duty to perform so that the legal estate must remain in him or the trast be defeated. Express trusts, RELATING TO REALTY PRACTICE. 577 Trusts and Trustees of Realty. those created in express terms in the deed, writing or will. Implied trusts, those which without being ex. pressed, are deducible from the nature of the transaction as matters of intent or which are superinduced upon the transaction by operation of law as matters of equity in- dependently of the peculiar intention of the parties. The term is used in this general sense, including constructive and resulting trusts, and also in a more restricted sense excluding those classes. Constructive trusts are those which arise purely by implication of equity and are en- tirely independent of any actual or presumed intention of the parties. Such trusts have not technically any ele- ment of fraud in them (Bispham’s Eq., Sec 91, p. 150). A passive or dry or simple trust, is one which requires the performance of no duty by the trustee to carry out the trust but by force of which the mere legal title rests in, or. by the statute of uses, vests in the trustee (Bouv. L. Dic., Trusts). It being the design of this work to con- fine the different branches here discussed to law relating to realty practice, we here speak of trusts as they are affected and affect the practice concerning things real. Formerly, under English law, a feme covert was able to create a trust of real estate only by the consent of her husband unless the property had been settled to her sep- arate use (Lulin Trusts, Chap. 3, Sec. 1). In several states the common law gave the husband almost absolute control of the property of the wife, but by subsequent oe 578 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty. legislation,in many of the states,including Pennsylvania, the disabilities of married women have, to a great ex- tent, been removed. By Pennsylvania Act June 8, 1893 (P. L. 844) “Every married woman shall have the same right as an unmarried person to acquire, own, possess, control, use, lease, sell or dispose of any property, real, personal and mixed, in possession or expectancy and ex- ercise said right in the same manner and extent as an unmarried person, and implied by this act as was ex- pressed in the Act of 1887 hereby repealed, that she may act without the intervention of any trustee. Provided, however, that a married woman may not become en- dorser, maker, guarantor or security for another and shall have no power to mortgage or convey her real estate un- less her husband join in such mortgage or conveyance. ’ As to a marriage settlement by a female infant, a deed executed by her in consideration of marriage does not bind her real estate, unless on coming of age, and after the death of her husband, she confirms the act (Jfilner v. Harewood, 18 Vessey, 258; Wilson v. McCullough, 19 Pa.. 77). Any person competent to make a will or a contract, may create a trust. Any person who may legally hold or make a contract may create a trust. Any person who may legally hold property, whether real or personal, may create a trust for the disposal of it. If his right to hold or control property is limited, his right to create a trust is limited to the same extent (Hill on Trustees, 71). An- RELATING TO REALTY PRACTICE. 579 Trusts and Trustees of Realty. other class of trusts that often affect the rights of mar- ried women, is that of resulting trusts defined as those trusts that arise by operation of law whenever a benefi- cial interest is not to go along with the legal title, as where a conveyance is taken in the name of one person and the consideration is advanced by another (Ander- son’s Law Dic.). It arises by law, from the presumed intention of the parties and from the natural equity that he who furnishes the means for the acquisition of the property, shall enjoy its benefits. It does not obtain where an obligation legal or moral, exists to provide for the grantee, as husband for wife, or parent for child; for in such cases arise the contrary presumption of an ad- vancement for the grantee’s benefit. There must be au actual payment of the purchase money (Story’s Eq. Jurisp., Vol. I., 64) or a liability incurred for it on the part of the Cestui que trust made or incurred as part of the original transaction of purchase and not pursuant toa subsequent arrangement. Parol evidence which may be offered to overcome the presumption in favor of the legal owner, must be clear, full and satisfactory. If an agent purchases land with his principal’s money and takes a deed in his own name, a resulting trust exists in favor of the principal (Eshle- man vy. Lewis, 49 Pa., 410; Bratton y. Mitchell, 3 Pa., 44). No such trust is raised by a subsequent payment of pur- chase money (Nixon's Appeal, 63 Pa., 279; Barnet v. 580 PRINCIPLES AND DECISIONS Trusis and Trustees of Realty. Dougherty, 3 Pa., 871). To establish this trust in favor of a wife as against her husband’s creditors, the proof that she advanced money must be clear (Kline’s Appeal, 39 Pa., 463; O’Hara v. Dilworth, 72 Pa., 397). Parol evidence adduced to raise a resulting trust may be rebutted by parol. September 10, 1888, the ac- count of the administrators of the insolvent estate of J. Young, who died in 1886, was referred to R. Gillan to re. port upon exceptions filed and to distribute balance. The widow made claim to one-fifth of purchase money of land sold by administrators of decedent by reason of the trust in her favor arising as alleged from the fact that her separate estate had furnished one-fifth of the pur- chase money when decedent took title thereto. The facts shown were that in 1848, J. Newswander, Mrs. Young’s father, conveyed the land in which the trust was claimed, to Jacob Young, then husband of claimant, by a deed re- citing a consideration of $5,000. Of this consideration, Young paid $4,000 and $1,000 was left in the land as was claimed for Mrs. Young, and was never paid to the grantor, who died in 1887, leaving a family book wherein was entry charging Mrs. Young with $1,000 cash as of the year 1848, and that, in settlement of her father’s estate, Mrs. Young was charged with this $1,000 as an advance- ment. After this long delay the evidence was held insuf- ficient to sustain the widow’s claim (Young’s Estate, 137 Pa., 435). KELATING TO REALTY PRACTICE. 581 Trusts and Trustees of Realty—Holding Legal Property for Another. HOLDING LEGAL PROPERTY FOR ANOTHER. Where a defendant holding the legal title to real es- tate, agrees to hold it subject to certain interests of plaintiff, and account as set out in his written agreement, he thereby constitutes himself a trustee, and becomes liable to account in any Court having jurisdiction over him even if the land is in another county (Clark v. Clark, 180 Pa., 186). In Jeremy's Appeal (178 Pa., 477) by olo- graphic will, Mr. Jeremy inter alia provided, Third, I give, devise and bequeath all the rest, residue and re- mainder of my estate both real and personal, to my be- loved wife, Kate Jeremy, for and during her natura] life. Fourth, after the death of my wife, Kate Jeremy, the es- tate to be held in trust for my two nieces, Bessie and June Jeremy, daughters of my brothers, Will M. and Al- fred H. Jeremy, share and share alike, to be held in trust until both are of legal age.” Mr. Jeremy was not learned in the law. He left a widow, Kate Jeremy, since deceased; and one son who was not mentioned in the will, and who insisted that Bessie and June had no beneficial interest beyond their majority, and that consequently there was intestacy in respect to the remainder after their arrival at majority. Orphans’ Court of Allegheny County, Pennsylvania, say in an opinion sustained by the Supreme Court: “Had 582 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Holding Legal Property for Another. this testator’s disposition of his residuary estate stopped with the words “Share and share alike” there could have been no doubt but that his nieces would have taken an absolute beneficial interest in the remainder. His de- clared purpose was to dispose of ‘“‘all” his residuary es- tate and therefore of “all” that he had, both in quantity and quality (Bushby v. Bushby, 1st Dal., 226). “I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal (said testator) to my beloved wife, Kate Jeremy, for and during her natural life and after the death of my wife, the estate to be held in trust for my two nieces, “Share and share alike.” This plainly made a complete disposition of all the residuary estate. No active trust having been expressly imposed upon the trustees, nor implied after both Cestuis Que Trust had attained majority, the trust must have be- come executed and the legal and equitable estate vested in them. There is no mention of ulterior object. No mention of the beneficial use intended for these nieces and no intestacy. Had any limitation been intended, there was the appropriate place, and a slight change would have made it; but the clause was left absolute in its terms. Did testator intend, by the following clause, to cut down the estate so given to an interest during the minority of both nieces? If so, they may never realize any benefit whatever, for the widow might survive the RELATING TO REALTY PRACTICE. 583 Trusts and Trustees of Realty—Resulting Trusts. minority of both. Testator cannot be supposed to have intended so glaring an absurdity. There was not only bequest in trust till majority withcut gift over but fol- lowed by distinctly announced intention to dispose of his whole estate. It is apparent there was no intestacy and distribution must be made accordingly. Decree affirmed by Supreme Court. RESULTING TRUSTS. Mr. Beech, in treating of Resulting Trusts, says: “Resulting trusts are that class of implied trusts, or trusts arising by operation of law, in which, from the supposed intention of the parties or from the nature of the transaction, the beneficial interest results or reverts to the equitable owner.” “A resulting trust arises by operation of law whenever a beneficial interest is not to go along with the legal title,” as conveyance taken in the name of one person and the consideration advanced by another. Where owner of both legal and equitable es- tates makes conveyance of the former, not intending to convey the latter a trust results in his favor. If this in- tention is not expressed or clearly implied in the instru- ment of conveyance, it is a matter to be determined in Court. It may appear from the circumstances of the transaction or be proved by other evidence in writing or by parol (Barnes v. Taylor, 27 N. Y. Eq., 265; Cook v. Hutchinson, 1 Kan.). The onus probandi is on those seek- 584 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Resulting Trusts. ing to establish the trust. If there is no positive evidence that it was the intention not to convey the equitable es- tate, no trust will result to the grantor (Provost v. Gratz, 1 Pet. C. C., 864; Jenkins v. Pye, 12 Pet. 241). In Thomp- son v. T'honpson, T., a man nearly 80 years of age, de- sired a loan on land. Agent objected on the ground of his age and suggested that the land be conveyed to J., son of T., who could procure the loan and give the secur- ity. It was held that conveyance to J. was not absolute, but to enable him te effect the loan, and J. would be compelled to reconvey, subject to the security for the loan (Thompson v. Thompson, 30 Nev., 489; 46 W. Rep., 388). By fraud, the circumstances which would constitute a resulting trust in the person who advanced the purchase money of land may fail of their intended purpose, as where real estate is purchased and the purchase money paid by a father, but by his direction the conveyance is made to the son for the purpose of defrauding his cred. itors, no trust will result to the father in consideration of the payment of the purchase money; but as between the father and son and those claiming under the father, such conveyance is absolute, and vests in the son the en- tire legal and equitable estate. Where there is a conveyance to a wife or child, the presumption will be, in case of a wife, that it is not in trust, but a provision for her support, and in case of a child that it is an advance- ment. In regard to principles governing confidential re- RELATING TO REALTY PRACTICE. 585 Trusts and Trustees of Realty—-Resulting Trusts. lations, it may be said a devise to a spiritual or medical advisor or even to an attorney, who. had drawn the will of his client will be sustained if there is no evidence of a mistake, misapprehension, or undue influence. Where realty is purchased for partnership purposes and on partnership account, it is wholly immaterial in the view of a Court of Equity in whose name or names the purchase is made and the conveyance taken, whether in the name of one partner or of all the partners; whether in the name of a stranger alone or of a stranger jointly with one partner. In all these cases, let the legal title be vest- ed in whom it may, it is, in equity, deemed partnership property, not subject to survivorship, and the partners are deemed the Cestuis Que Trust thereof. A Court of law may, nay, must, in general, view it only according to the state of the legal title, and, if the legal title is vested in one partner or in a stranger, a bona fide pur- chaser of real estate from him having no notice either ex- press or constructive of its being partnership property, will be entitled to hold it free from any claim of the part- nership, but if he has such notice, then, in equity, he is clearly bound by the trust, and he takes it cum onere, exactly like every other purchaser of a trust estate (Howie v. Carr, 1 S., 182-3; Hindson v Witherill, 5 De G. M. & G., 301; Procius v. McIntire, 5 Barb., 425; Bayard v. Hoffman, 4 Johns, Ch. 45). 586 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Resulting Trusts. Where trustees, acting in good faith in discharge of their duty, purchase an estate with trust funds and take title in their own names without declaration of trust, a resulting trust arises in favor of the beneficiaries. It is really a purchase by the beneficiaries (Beech on Trusts, 1 Vol. 324). Where an agent is employed to purchase an estate and takes title in his own name, he thereby becomes trustee for the principal (@assey v. Bk. of New Orleans, 9 Paige, 619). Where an estate is purchased, and the title taken in the name of a wife or child it is an open question whether a resulting trust arises in favor of the purchaser. The presumption is against him, but evidence may be introduced to show aither that there was some deception, accident or misapprehension in exe- cution of the instrument of conveyance; but proof of this character must be such as to leave no reasonable ground for doubt, and it must relate to facts that were antece- dent to the purchase, or in connection with it. Where husband pays consideration and has conveyance made to his wife, presumption is that a gift was intended and a resulting trust will not arise in his favor from such pay- ment. The proof which shall overcome the presumption of a gift to the wife must be of facts antecedent to or con- temporaneous with the purchase or immediately after, so as, in fact, to be part of same transaction. It must be equally satisfactory and explicit with the proof required RELATING TO REALTY PRACTICE. 587 Trusts and Trustees of Realty—Resulting Trusts. to establish a resulting trust (Reed v. Huff, 40 UM. J., Eq., 229; Sawyer’s Appeal, 16 N. H., 414). Where land was bought and paid for by a son and the title taken in the name of his mother, it was held that a resulting trust arose in favor of the son (Champlin v. Champlin, 1891, 136 Ills., 303). Touching the question whether a trust will arise in favor of a mother who purchases an estate in the name of a child “The decisions,” says Beech, “Are not in entire accord.” In the earlier English decisions, the doctrine that the mother is not under obligation to provide for a child, and that, in consequence, a trust arises in such a case in favor of the mother or of her representative, seems to be favored. It is well established that a resulting trust may be proved by parol. The party seeking relief may prove the acts and declarations out of which it is claimed that a trust arises by parol evidence. This may be done, even in opposition to the recitals of the instru- ment of conveyance. The vital points are payment of the consideration and intention of the parties in regard to the beneficial interest. The claimant of trust must show he paid the purchase money or that it was paid by an- other in his interest and that it was the intention that the equitable interest should be retained by him (Barren v. Bellow, 24 Vt., 375). 588 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Guardian not to Convert Infants Personal Property into Realty. GUARDIANS NOT TO CONVERT INFANT'S PERSONAL PROPERTY INTO REALTY. As arule, a guardian or trustee will not be allowed to convert an infant’s personalty into realty (Roger's ' App. 11 Pa., 346) for wards, on arriving at age, may elect to receive their personal property and trustees or guardians may be called to account and pay it over to the wards (J/iller’s Estate, 1 Pa., 326; Hassard v. Rowe, 11 Barb., 22) so it has been held that to use part of the infant’s personalty in making permanent improvements upon the realty is a conversion of the personal estate and is unauthorized and will not be allowed to the trustee or guardian (Hassard vy. Rowe, Ibid.) bunt if the directions in the will by the testator directed said improvements to be made out of the personal estate which would otherwise go under the devise to the wards, the rule would be dif- ferent and where the enlargement of a tenement upon the ward’s land greatly increased the rents, the trustee was allowed credit for expenditure (Jiller’s Estate, 1 Pa., 226). It has been said, in case of necessity, guardian or trustee may purchase land with the personalty of an infant (Roger’s App., 11 Pa., 36; Billing’s App., 3 Rawle, 55; Bon- sall’s Appeal, 1 Rawle, 273). But as a rule, except by plain direction of the testator, the proper course is to ap- ply to the Court having jurisdiction of the ward’s estate, for leave to make such investment of infant’s money. RELATING TO REALTY PRACTICE. 589 Trusts and Trustees of Realty—Guardian not to Convert Infant’s Personal Property into Realty. In proper cases, trustees or guardians have power to con- vert their ward’s personalty into real estate but they can- not safely convert the ward’s real estate into personalty by sale without order, decree, or license of Court. If such a sale is already made (except private contract of sale authorized by statute) the Court will refuse to sanc- tion it (Worth y. Curtis, 3 Shep., 228). Where infant’s lands are sold by order of Court, the proceeds remain rea] estate so far as guardian and infant are concerned until he is of age (Loyd v. Hart, 2 Pa., 473; Shumway v. Coop- er, 16 Barb., 556; Fidler v. Higgins, 21 N. J. Eq., 138). Where timber is cut upon an infant’s estate, proceeds and the accumulation thereof remain real estate if the infant is tenant in fee (Tullet v. Tullet, 1 Dick., 352). , A father being bound to maintain his infant children if he has sufficient ability, a trustee cannot apply any part of the income ef an infant’s estate to its maintenance without the order of Court (lfatter v. Kane, 2 Barb., Ch. 875; McKnight v. Walsh, 23 N. J., Eq., 136). A stepfather is not compelled to maintain his wife’s children (Booth v. Smeath, 2 Strob. Eq., 31). Held, a mother is not, as a rule, legally obliged to support her children, whether liv- ing with the husband by whom she had the children, nor is a widow, nor even if she is married to a second hus- band, and so they are entitled to maintenance out of the income of the trust find (Whipple v. Don, 2 Mass., 415; 590 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Charitable Gifts. Daws v. Howard, 4 Mass., 97). “Where two infant daugh- ters were entitled to a large fortune on coming of age and had an income of $4,000 per year, their father not being able to keep a house in accordance with their expecta- tions and future prospects, an allowance of $2,500 per year was made to him that he might keep up an establish- ment proper for his daughters and educate them at home, although the expenses at a boarding school would not have exceeded $1,200 per year” (Perry on Trusts, 2 Vol., 250). It has been well said by Mr. Perry, that trusts for charitable uses form a large and important class of trusts, but in the small space of this chapter, this class can be little more than alluded to. The word “Charity,” in its widest sense, denotes all good affections men ought to bear toward each other, restricted, relief or alms to the poor. A bequest in trust for the poor inhabitants of a parish or town, is a charitable trust for the poor not re- ceiving parochial or municipal aid, or relief as paupers. CHARITABLE GIFTS. If it was applied to the maintenance of those support- ed by a parish, town or county, it would relieve wealthy taxpayers and not materially aid the poor (McIntire v. Zanesville, 17 Ohio St., 352). The following gifts for the poor have been held charitable within the letter or spirit of the law of charities of several states. A gift to the poor indefinitely (Haward v. American Peace Soc., 49 RELATING TO REALTY PRACTICE. 591 Trusts and Trustees of Realty—Public Charities and Mixed Trusts. _ Me., 288) to a particular parish or place (Atty. Gen. v. Trinity Church, 9 Allen, 422) or to the most deserving poor of the city (Heskath v. Murphy, 35 N. J. Eq., 23) or to dis- tribute groceries, clothing, fuel and alms among the poor (Grandon’s Hstate, 6 W. é& S., 537). Education and schools of learning, and almost all gifts for educational purposes are held to be charitable (Straus v. Goldsmith, 8 Sim.,, 614). PUBLIC CHARITIES AND MIXED TRUSTS. “As a further classification of trusts, Mr. Perry di- vides trusts into simple and special trusts. “A simple trust is a simple conveyance of property to one upon trust for another, without further specification or directions.” The law regulates the trust. Cestui que trust has the right of possession and of disposing of the property and may require trustee to execute such conveyance of the legal estate as is necessary. A special trust is where special duties are pointed out to be performed by trustee. He is not a mere passive agent, but has active duties to perform, as when given him to sell and from proceeds to pay debts (Perry on Trusts, 1 Vol.,13). Also a mixed trust and power as where the outline of the trust is sketched and details left to be settled and carried into effect according to the best judgment of the trustee. Again, trusts are said to be legal or illegal. Legal when for an honest purpose, as to pay debts. Illegal, when for 592 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Public Charities and Miaed Trusts. purposes of immorality, vice, or of defrauding creditors or contravening some statute, or are contrary to public policy. In such case a Court of Equity will not give its aid in carrying them into execution (Bacon on Uses, 9) or they may be private concerning individuals or families for private convenience and support, or public for public charities or general public good. They concern the gen- eral and indefinite public. These private trusts are lim- ited in duration; being for individuals. They must be certain, and the individuals must be identified within a limited period. Can endure only for a life or lives (Crooke v. King’s Co., 97 N. Y.. 421). A constructive trust is one that arises when a person clothed with some fidu- ciary character, by fraud or otherwise gains some advan- tage to himself. Courts construe this to be an advantage to the beneficiary or a constructive trust (Perry on Trusts, 1 Vol. 16). Implied trusts are those that Courts imply from the words of the instruments where no express trust is declared, but where words are used from which the Court infers a purpose to create a trust. Resulting trusts being spoken of elsewhere in this chapter, we but say here that they are such as are presumed by the Courts to arise out of the transaction of parties as where a man pays for land but the deed is taken in another’s name. A trust may be created either by private or public author ity. Asin law, every person sui juris and of proper age RELATING TO REALTY PRACTICE. 593 Trusts and Trustees of Realty—Public Charities and Miaed Trusts. is capable of disposing of his property in the way and manner as he may see fit, not incompatible with the gen- eral good of humanity, every person competent to enter into a contract, or make a will or to deal with the legal title to property, may make such disposition as he thinks fit and annex such conditions and limitations to its en- joyment as may, to him, seem meet, and vest the property in trustees to carry out his intention, and corporations which are but individuals in their aggregate capacity can subject their charter powers, appoint trustees and declare in what manner their property shall be enjoyed. Under this head, contracts of married womenand infants, in gen- eral, are not absolutely void, being voidable only (2 Kent, 235) may create a trust. As it was a maxim of the com- mon law that no man of full age could be allowed to stul- tify himself; but this maxim never prevailed in the United States, neither is it now the law of England, but under the authority (Allis v. Billings, 2 Met., 415) a con- veyance by a lunatic is not absolutely void, but voidable by himself and also by his friends and representatives; but after inquisition declaring him incompetent, all his contracts are void till restored to control of his property. The King, a republic or state acting in its sovereign capacity may grant or create a trust. As equity never wants for a trustee if a trust is one properly created incompetency, disability, death or non-appoint- 38 594 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Public Charities and Mixed Trusts. ment of a trustee shall not defeat it (Story Eq. Jur., Sec. 98, 976). Property once charged with a valid trust will be followed in equity into whose- soever hands it comes and he will be charged with the ex- ecution of it unless he is a purchaser for value and with- out notice (Shepherd v. McEvers, 4 John, Ch. 136). The holder of the legal title may convert himself into a trus- tee by making a valid declaration of trust upon good con- sideration (Note Woullam v. Heame, 2 Lead. Cas. Eq., 404). In equity, the absolute interest in the trust fund is vested in the beneficiary and the trustee is a mere instrument, and a power or authority in the trustee must have the character of a power simply collateral (Drummond vy. Tracy, 1 Johns, 608). As a general rule, equity follows the law, and all persons who are capable of taking the legal title to property, may take the equitable title as cestuis que trust through the medium of a trustee (Lulin on Trusts, 35). Asarule, it has been held that the bene- ficial donee of property cannot take as cestuis que trust if he is prohibited from taking the legal title to the prop- erty. But in charitable trusts, the cestwis que trust is not, and need not, be capable of taking the legal title, as when property is given in trust for the poor of a parish, or for the education of youth or for pious uses, or for any charitable purpose, the beneficiaries are generally unknown, uncertain, changing, and incapable of taking RELATING TO REALTY PRACTICE. 595 Trusts and Trustees of Realty—Public Charities and Miaed Trusts. or dealing with the legal title; but such trusts are held valid in equity and Courts of Equity will administer them and protect the rights of the cestwis que trust” (Perry on Trusts, 1 Vol. 45). Every kind of valuable, assignable property, real and personal, may be the subject matter of a trust and every kind of vested right which the law recognizes as valuable, may be transferred in trust such as receipe for a medicine (Green v. Falgum, 1 Sim. and St., 398). Copyright of book (Sims v. Marryal, 17 Q. B., 281). A. trade secret (orrison v. Moat, 6 Eng., L. and Eq., 14). Patent right (Russell’s Patent, 2 De G. & Ton., 130). Where trustees are in possession of real estate and have the management of the estate, they must pay all rates and taxes and protect the estate from tax sales. They may insure, and good management would demand it, but they are not generally bound to do so (Burr v. Me- Ewen Bald. W. C. C., 154). Where they have the man- agement they must use due diligence in collecting rents, and when they are charged with the payment of annuities, debts or legacies or any other sums out of the estate, but have no power of sale, they have an implied power of leasing upon the ordinary terms or custom of the state or town in which the land is situated (Newcomb v. Ketteltas, 19 Barb., 608). If the trust property consists of farming lands, the trustee can grant ordinary farming leases; if of houses in a city, he can grant the ordinary leases of 596 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Simple or Dry Trusts. such property. Under the general implied powers of leasing, trustees can only grant a lease in possession and cannot grant a lease in reversion (Sussex v. Worth, Cro. Eloiz., 5). It is the duty of the trustee to renew all leases. where trusts property consists of leasehold estates at the regular periods, where an express trust is created for that purpose. In absence of such a trust, the duty may be implied by expressions used, or from the whole scope of the instrument (Curtis v. Lukin, Beav., 147). , SIMPLE OR DRY TRUSTS, As before hinted at, a trust is a simple or dry trust when property is vested in one person in trust for another and the nature of the trust not being set out in the in- strument creating it, is left to the construction of law. In such case the beneficiary is entitled to actual posses- sion and enjoyment of the property and to dispose of it and ask trustee to convey the same as he directs. The powers of the dry trustee are few and simple—usually said to be three fold, viz.: To allow beneficiary income and profits of the estate; to execute the conveyances or dispose of the property as directed by the beneficiary and to protect and defend the title or allow his name to be used for the purpose. The dry trustee cannot manage or dispose of the estate though the cestui que trust is an in- fant, married woman, lunatic or otherwise incapable of controlling the estate. But, if he, being in possession, RELATING TO REALTY PRACTICE. 597 Trusts and Trustees of Realty—Where Testator’s Bounty is Supposed Benefit to Himself or His Soul—No Prerogative will Apply Gift to Another Purpose. convey the estate for a valuable consideration paid to a purchaser who has no notice of the trust, the title of the purchaser will prevail (Bovey v. Smith, 1 Vern., 149). “But such a transaction under our recording acts would be al- most impossible as the recording of the trust deed would seem to be sufficient notice of said trust. So impersonal are the relations of dry trustees to the cestui que trust that it is said they may purchase the estate of the beneli- ciary” (Perry on Trusts, 2 V., 58). WHERE TESTATOR’S BOUNTY IS SUPPOSED BENEFIT TO HIM- SELF OR HIS SOUL—NO PREROGATIVE WILL APRLY GIFT TO ANOTHER PURPOSE. If the object of the testator’s bounty is not a public benefit or charity, but some supposed private benefit to himself or his own soul, even the prerogative of the crown will not be interposed to apply such a gift to an other purpose, but the bequest will fall into the residue (Atty. Gen. v. Oxford, 4 Ves., 432) or if the gift was for a particular purpose only and with no general charitable intention, the Court cannot, by construction, apply the gift Cy Pres. Where the original purpose was such as to build a church at W. and this purpose cannot be carried out, the gift must go to the next of kin (Ibid). The inten- tion of the donor is the point steadily aimed at by the 598 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Where Testator’s Bounty is Supposed Benefit to Himself or his Soul—No Prerogative will Apply Gift to. Another Purpose. Courts and the doctrine of Cy Pres is only a liberal rule of construction to ascertain intention. Any arbitrary rule that would substitute conjectures of the Court where there was but one intention of a testator, that would seem possible, would be an outrage in the country gov- erned by established laws; but, as a rule, the principles of this doctrine are simple and the Courts can apply this rule without usurping any prerogative powers, such as if testator makes a gift in trust to invest in U. 8. bonds and pay the income to his wife, and there are no bonds by reason of the payment of the public debt the Court would say that the trust for the wife being the principal intention of the bequest, the particular manner of the in- vestment of the funds is incidental and the particular di- rection having failed an investment will be ordered Cy Pres the original direction of the will. So if a fund is given in trust for a charity with a direction to accumu- late beyond the legal period, or with any other illegal or impossible direction as to the incidental management of the fund, the Court will direct a management that is le- gal and possible Cy Pres. (As near as can be. Ander. son’s Law Dic.) the original direction, this on the ground that donor did not intend his charity to fail because one of the incidental directions could not be carried out (Phila.v. Girard, 45 Pa., 27; Chamberlain v. Brackett, L. R. RELATING TO REALTY PRACTICE. 599 Trusts and Trustees of Realty—-Trusts for Bond Holders, Ratlroads, Ete. Ch). By Act 26th May, 1876 (Ph. Laws of Pa., 211) when realty by gift or devise is vested in trustees for the purpose of applying the income for maintenance of a designated class of persons, which class shall be- come extinct so there is no one left to derive benefit from said income and if there be no heirs to claim said fund, trustee may apply to Court of Common Pleas for authori- ty to apply said income to the benefit of some other class of persons similarly situated as near as may be to those for whose benefit the trust was originally created. If court is satisfied as to correctness of same it shall have power to decree that trustee thenceforth shall apply said income to benefit or support of the new class or classes of persons mentioned in said petition (See Maners v. Phila. L. Co., 98 Pa., 165). TRUSTEES FOR BOND HOLDERS, RAILROADS, ETC. Mr. Perry, in Chapter XXIV,, of his work on trusts, says: “Within the last few years it has become common in this country to create trusts for bondholders. The de- velopment of railways has been rapid, and to operate and extend them often requires large sums of money in excess of their capital stock, or their ordinary floating debt as it is impossible to obtain these large sums in the ordinary course of business from one source and without security, the bonds of the corporation are issued under authority 600 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Trusts for Bond Holders, Railroads, Hte. of the legislature and sold on the market, and the fran- chise and property of the corporation conveyed in mort. gage to one or more persons in trust to secure the pur- chasers and holders of the bonds. The bonds may amount to millions of dollars scattered throughout the country, and even in foreign lands; but the trustees hold the conveyance of the property in trust for all who have the bonds described or referred to in the mortgage.” The bonds are issued by the corporation with a promise con- tained therein to pay principal and interest at the time and times therein named. The trustees have but little to do so long as the corporation pays the interest and principal as agreed. The general principles of the law of trusts apply to them (Sturgis v. Knapp, 31 Vt). They hold the security in trust for the bondholders as cestuis que trust and must act bona fide for all, see that property is not wasted or rendered worthless as security, and should not place themselves in relations antagonistic to the interests of the bondholders. In England, the prac- tice usually is to mortgage only tolls, accruing profits or future calls of the corporation (8 & 9 Vict., C. 16). When a mortgage to trustees is made by a railway cor- poration of its franchise and all its property, it has been determined in some cases that the rolling stock, such as cars and locomotives is accessory to the roadbed, station- houses and franchise, and belongs to the real estate or RELATING TO REALTY PRACTICE. 601 Trusts and Trustees of Realty—Trusts for Bond Holders, Railroads, Ete. roadbed of the corporation as fixtures and cannot be seized and taken in execution against the company, sold or removed (Hunt v. Bullock, 23 Ill., 320). In other cases, personal property of the railroad, although necessary to operate the road, is held to be mere personal property in no way attached or accessory to the roadbed or to the franchise and can be taken in execution and sold like any other personal property (Stevens v. Buffalo & N.Y. R., 31 Barb., 590). An executor or administrator, in order to be justified in selling the trust estate, should either have authority conferred on him to sell, express or implied by the terms contained in the instrument of trust. If there is ng such power thus conferred, he can only sell with or under the permission of, or by decree of Court on cause shown after due notice to all parties interested. A trustee cannot delegate the trust or power of sale to a third person (St. Louis v. Prest., 88 Mo., 612) unless the trust deed permits the delegation (Hess v. Dean, 66 Tex., 666) especially if it is a naked power, coupled with no in- terest (Black v. Erwin, Harp. L., 411). A sale executed by such delegated agent is void (Pearson v. Jamison, 1 Me- Lean, 197). Nor can one trustee delegate his power to his co-trustee (Berger v. Duff, 4 Johns. Ch., 368) but such trus- tees for sale may employ a solicitor or agent according to usage of business if they use proper prudence (Gillespie y. Smith, 29 Ill, 473; Sinclair v. Jackson, 8 Cow., 582). 602 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Trusts for Bond Holders, Railroads, Ete. Sale at public outcry or auction after due public notice, is always the safest way for one acting in capacity of trus- tee, for then, as a rule, no question can thereafter be raised as to the adequacy of price (Watterman v. Spalding, 51 Ill., 425). When money is received by a trustee from sale of trust property, great care is necessary as to the depositing and investment of the same. [If the trust in- strument stipulates in what bank or with what person the same is to be deposited if the condition of things remain the same as when the instrument was made, as a rule, it would be safe thus to deposit it. When there is no such direction, then such care, at least, devolves upon the trustee as a prudent, discreet person would ex- ercise in regard to his own affairs; but the safer way, as a rule, is to deposit the funds under the direction of the Court. Ifa person holds money or other property in his hands belonging to another, he cannot discharge himself from liability, except by transferring the property or money to the true owner. At law, the trustee is the true owner of the property that is vested in him, but in equity the beneficiary is the true owner. Courts of Equity, therefore, require that the vouchers for purchase money be signed by the rightful owner, or the purchase money must be properly applied to his use according to the terms of his trust or there can be no such conveyance of RELATING TO REALTY PRACTICE. 603 Trusts and Trustees of Realty—Trusts for Bond Holders, Railroads, Etc. the estate as to bar his beneficial interests (Wetherly v. St. Georgio, 2 Hare, 624). If no power of sale is contained in the instrument, Courts of Equity upon cause shown may decree sale. In such cases, all parties in interest should have notice (Bush v. Bush, 2 Duv., 269). By Act (Penna.), 18 Apr., 1853 (P. L., 508, Sec. 1) where realty is acquired by de- scent or will the Orphans’ Court, and in all other cases the Courts of Common Pleas may decree sale, etc., when the realty is owned or held for or by minors, lunatics or habitual drunkards, use of married women, religious, charitable societies, by corporations or by trustees for public or private trust. Under the law above referred to, the only safe way it would seem for the grantee from a trustee or of a trust estate in general is either to require a direction of aliena tion in the trustee from all the cestuis que trust or to have the sale made through, and under the direction and sanction either of the Orphans’ Court or Court of Com- mon Pleas as the case under this Act may require. In Short v. Mangst (8 W. & S., 55) the Court says, It is objected that Gress could not convey without the consent of the cestui que trust, but the power to convey passed by grant to Brown and Gress, their heirs and as- signs; and “Gress” being the survivor, could, in the ab- 604 PRINCIPLES AND DECISIONS Trusts and Trustees of Realty—Trusts for Bond Holders, Railroads, Ete. sence of any proceedings to control him, assign to an- other trustee. The general power of a trustee to sell and convey the estate is co-extensive with his ownership of the legal title and this general power over the legal title is entirely dis- tinct from the execution of a special power given in re- spect to the sale of an estate (Perry on Trusts, V. I., 437). Where a trust is expressly created by a written instru- ment, every sale in breach or controvention of the trust is declared absolutely void (Cruger v. Jones, 18 Barb., 468). A trustee is seldom justified in selling the trust es- tate without an express or implied authority conferred upon him by the instrument of trust. If no power of sale is contained in the instrument, Courts of Equity up- on cause shown may decree a sale (Perry on Trusts, 2 V. 401, Sec. 764). Under ordinary circumstances, the power of sale can- not be exercised unless it is conferred by the instrument by which the trust is created, or by decree of Court (Beach on Trusts, Etc., 449). A power of sale may be conferred in an instrument creating a trust by implica- tien (Ibid, Sec. 450). If the deed of trust confers no power of sale upon the trustee, he cannot sell (Caldwell’s Appeal, 7 Atlan., 271). RELATING TO REALTY PRACTICE. 605 Trusts and Trustees of Realty—Trusts for Bond Lolders, Railroads, Ete. Where a trustee purchases from his cestui que trust his interest in the estate, the trustee will take no title if it appear that at the time the assignment was made the cestui que trust did not fully understand what his rights were (Neely’s Estate, 155 Pa., 133). A trustee in order to make public sale of real estate cannot bind the trust estate by an agreement with real estate agents to procure purchasers. Such agreement is at his own risk (Kuhn’s Estate, 88 P. L. J., 378). A trustee purchasing trust property at a sheriff’s sale, is bound to communicate all his knowledge to his cestui que trust before making use of it himself, otherwise the profit of purchase belongs to the beneficiary (Mullen v. Doyle, 147 Pa., 512). CHAPTER XVIII. WATERS NAVIGABLE AND NON-NAVIGABLE. The air, running water, the sea, and consequently the shores of the sea, by the laws of nature and of nations, are common to all mankind. “No man is prohibited from approaching the sea shore. The ocean does not admit of property therein; it is not capable of occupancy; it has no boundaries; it is not constrained by shores for it en- compasses the land, continents, and islands, and is not compassed by the land; therefore incapable of appropria- tion ” (Rutherford’s Inst. Nat. Law, Chap. 5, Sec. 1). No power can tame it, save that of the Almighty “who gath- ereth the waters of the sea together as a heap,” who spake and its waves were still. Next in importance to the ocean for the navigation and commerce by water in the United States (excepting it may be our great lakes and bays) is the Mississippi River. Before Iowa was admitted into the Union, Con- gress provided that said river shall be forever a public highway, free to the people of that state as well as to all other citizens of the United States, without tax, impost or toll; therefore in 5th Statutes at Large (742, 3 Art.) and Jay Treaty of 1794, it was stipulated that the Mississippi River shall be entirely free to both parties and all ports on the eastern side to whichsoever belonging may be RELATING TO REALTY PRACTICE. 607 Waters Navigable and Non-Navigable—Alluvion. used by the parties in as ample a manner as any of the Atlantic ports, or places of His Majesty in Great Britain. Rivers, in legal parlance, are of two kinds—naviga- ble and non-navigable. Navigable rivers are those large streams as in England, where the tide ebbs and flows, or as in the United States, such large rivers as are in fact, navigable and by national and state legislation are, in law, declared so to be. A navigable water or river is one that belongs, as a highway, to the public, while a water or stream not navigable, is private property and belongs to the owner of the land under or abutting thereon on each side or on both sides thereof. ALLUVION. Alluvion is defined as the imperceptible increase of earth made to land by force of waters of the sea or a river, by a current or by waves, and at common law the owners of land abutting or bounded by the sea or a river take title to the accretions of soil on the grounds, as Black- stone says, “That owners of land being often loosers by the breaking in of the sea or being at charges to keep it out, have thus a public gain as a reciprocal consideration for their charges or loss.” But to the right of land owners claiming such alluvial soil, there are exceptions and it was held in England that where a corporation had a right .to the whole territory of a burg vested by charter, the grantee of land on the shore has no right to follow the 608 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Alluvion. sea or take the land acquired from it. The appellant possessed a small inclosure in Dundee bounded by sea floods, the water receded by cause of embankments and a tract of land was left between the sea and the appellant’s inclosure. He claimed it, but it was decided that the boundary by those floods was made use of as a term of description and that the description in question was con- sidered accurate only as to date of first conveyance and the decision was against the alluvial claimant (Mason v. Burg of Dundee, 8 Brown’s Cases, 119). Both in the civil and common law, the waters of the sea and the shores are subject to public use and no persons can hinder another from approaching or navigating the sea. By the civil law the property of such water and shores is in no one. At common law, the ownership resides in the sovereign. In New York the Supreme Courts hold that the Hudson River being navigable, the land upon its banks below or- dinary high water mark belongs to the people of the state in their sovereign capacity and that where defendants, in pursuance of a charter from the state legislature auth- orizing construction of a railroad from New York to Al- bany entered upon the Hudson River in front of plaintiff’s farm and between ordinary high and low water mark, raised embankments and tran cars thereon without per- mission of plaintiff, or giving him compensation for dam- ages sustained by him, held, that the legislature had not transcended its authority in making the grant to the com- RELATING TO REALTY PRACTICE. 609 Waters Navigable and Non-Navigable—Allwvion. pany and no action would lie. Says the learned Judge, “He has no property in the river as riparian owner, which entitles him to this action. Defendant’s railroad was constructed by the authority of the people of the state, the sovereign power. The rights of plaintiff are held in common with the public and subservient to the will of the public. He can enjoy them until public necessity or convenience renders it expedient that he should be de- prived of them. This the public may do. It is not in. consistent with the power lodged in the sovereign (Gold v. Hudson River R. R. Co., 2 Seldon, 522). As purchases from the United States are bounded by mathematical metes and bounds, and where lands are purchased thus bounded, and lines runs, corners established, these evi- dently must govern, and in Saulet v. Shepherd (4 Wallace, 508) the Court says, “Before there can be any right of accession or accretion, there must be an estate to which the accession can attach.” Alluvion can never attach to land neither bounded by the sea nor other body of water, but by mathematical lines. Water cannot add anything to property which it does not touch. In those cases such lands are denominated, in law, the limited field or a tract of land conveyed by artificial lines of mensuration, or fixed boundaries. Whether contents are set forth or not, whatever lies between the limited field and the riv- er this belongs either to the public or some individual and in neither case adds anything to the ager limitatus 39 610 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Allwvion. (Houck on Nav. Rivers, 163). Inland rivers of the Unit- ed States being navigable and excepted from survey in the state carved out of territories of the Union and de- clared public highways, the proprietary of adjoining lands is limited by the top of the bank, and surveys on its mar- gin and in case these surveys cannot be found he is limit- ed by the banks, they being the great land mark and that a plaintiff has not title to the land bounded by a naviga- ble stream (as the Mississippi) between high and low wa- ter so as to enable him to maintain action for taking the same, and in case these cannot be found by the bank, it ‘being the great land mark (Principles discussed in Mc- Manus v. Carmichael, 3 Iowa, 1-55). A contrary doctrine has been held in Illinois and Mississippi. From these principles we conclude’ that navigable waters belong to the state with a right of way for the general public over the same. That the land under the bed of the stream belongs to the sovereign power of the state through which the river passes or on which the water is located that the shore between high and low water mark belongs as well to the state or public, and so the accretion to the banks unless, by law, the doctrine of alluvion prevails in which case the soil goes to the owner abutting the stream or water, and in the case of islands arising in the rivers or waters as the water and land under their bed belong to the state and as the doctrine of alluvion could not apply, such islands are the property of the state also avulsions RELATING TO REALTY PRACTICE. 611 Waters Navigable and Non-Navigable—Deeds and Deserip- tion of Land. (z. ¢.) where soil of one man’s estate is suddenly by force of the water carried to the land of another, the owner does not thereby loose his title therein. So if part of the territory of the state, should suddenly be transferred by change of a river to another state, it would still belong to the state from which it was thus severed (See Vattell’s Law of Nations, Sec. 270). DEEDS AND DESCRIPTION OF LAND, Lands may be bounded in grants by natural objects or by mathematical lines. By the former mode land may be described as bounded by the ocean, lake, pond or other visible thing; and also may have description by ranges, townships, section and quarter sections, both methods are used. Mathematical lines to establish the boundary, visible monuments to attest and point out with accuracy, the lines and corners already established. Description of western townships and corners of townships are marked by progressive numbers from beginning; each a distance of one mile between the corners shall be also distinctly marked with marks different from the corners, one-half of the township taking them alternately, shall be sub-divided into sections containing, as near as may be, 640 acres each by running through the same each way parallel lines at the end of every twe miles and by mark- ing a corner at each of the lines at the end of every mile. 612 PRINCIPLES AND DECISIONS Waters Navigable und Non-Navigable—Deeds and Descrip- tion of Land. The sections shall be numbered respectively, beginning with No. 1 in north east section and proceeding west and east alternately through the township with progressive numbers till the 36th be completed. (See plan post). Counties are divided into ranges; ranges into townships and townships into sections, fourth sections and frac- tions thereof. Where a section (640 acres) is divided in- to quarter section and sold off in smaller sub-divisions, forty acres each, the lot or piece of land sold is usually described, i. ¢. in this manner: “Being the north east quarter of the south east quarter of section three, Town- ship No. five North; Range No. six, East—County, Iowa,” or the north half of Section No. ten, Township No. six, South, Range two West, or any other division that the case may require. In these cases the primary division of the state into ranges, townships and sections controls and governs the metes and bounds saving as a rule fur- ther description. The division of lands on mathematical principles, without reference to natural objects as the tests as to lines is by far a more accurate system than the old Eng- lish method of natural objects, either on the ground that the latter are liable to change, obliteration, or removal. The former, it is true, are subject to some variations in the magnetic needle, but these are slight and can be com- pensated for with great accuracy. This latter method RELATING TO REALTY PRACTICE. 613 Waters Navigable and Non-Navigable—Deeds and Descrip- tion of Land. had its origin away back in the primitive days of surveys and navigation, as the original conception of dividing lands on mathematical principles and are therefore cor- rect (Houck on Nav. Rivers, Sec. 132-133) but as mis- takes sometimes occurred, and to avoid confusion and prevent disputes as far as possible, the law contemplates that where a survey has been made and returned, it shall be held to be mathematically true as to the lines run and marked, the corners established and the con- tents returned. Thus each section would be inde- pendent of any other section in the township, and be gov- erned by its marked and established boundaries. Should these be removed or lost, recourse must then be had to evidence to show their former situation. The purchaser of land from the United States takes by metes and bounds whether the actual quantity exceeds or falls short of the amount estimated by the surveyor. In our west- ern surveys, if, in running the lines of a section a large navigable river should intervene, the survey stops at that point and does not cross the river, and the fraction thus made is complete in itself. From the above, it would ap- pear that the mathematical boundaries primarily estab- lished by the United States and returned with corners marked and shown on the ground, must govern though found to be not entirely accurate and that resurvey which would change such boundaries would not be permitted. 614 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Deeds and Descrip- tion of Land. Again, it has been adjudged that alluvion, accretions of soil, and receding of waters adjoining the owner of the ager limitatus cannot innure to his benefit or increase his domain, while the case would be different if his land was not demarked by artificial monuments, but only bound- ed by the sea or other water. In establishing a lost sur- vey as hereinafter stated, course and distance must yield to fixed monuments and all ascertained surrounding monuments must be allowed their due weight in deter- mining the locality of an unascertained corner. We therefore conclude that the lands of the United States are conveyed by fixed boundaries and artificial lines of measurement, and that an exact quantity of acres is sold by the acre, and never in gross. Such grants constitute what, in law, is called ager limitatus, or the limited field and purchaser cannot claim beyond the lines and the number of acres of his grant (Briton v. Ferry, 14 Mich., 71). As to boundaries along navigable streams, the de- cisions of the Courts are conflicting. In states formed since the Revolution and surveyed under Act of 1796, the weight of authority seems to be that lines running along the tops of banks of rivers traversing those states, limit the rights of owners of fractional sections. The pur- chasers of fractional sections on the border of navigable rivers in this country are not riparian proprietors if those lines mean anything. In Iowa, Alabama, Michigan and RELATING TO REALTY PRACTICE. 615 Waters Navigable and Non-Navigable—Deeds and Descrip- tion of Land. by the Supreme Court of the United States and of course in states where grants of land are bounded by water courses and where there are no statute regulations on the subject or exceptions in the grants, questions arise as to the extent of proprietor’s right on the margin, whether the water is sea, navigable stream or not navigable is, in such cases, material in determining the extent of the grant and as well, whether the right extends to the high, low, or ordinary water mark or to the center or often the thread of the river (Houck Nav. Rivers, Sec. 170). It is settled, where a man’s land abuts or adjoins a river not navigable, he owns to the center of the river or stream. not so where the stream is navigable. Under the land grants(Actsof Congress,1796) dividinglandsintosections N. W. of the Ohio River, etc., owners along such streams own only to the survey returned. As to other navigable streams in general, it is decided that owners of lands bounded by a navigable stream own to the water’s edge, viz.: to high water mark when the tide or water is high and to low water mark when the tide or water is low (Houck on Nay. Rivers, 116-117-118). Lands on shore of a river are not in law, the property of the land owner abutting on said stream, but as a rule belong to the state through which the river runs, but if the river is not navi- gable and there are owners on both sides thereof, each adjoiner owns the land of the shore and under the stream 616 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable — United States Surveys. to the middle of it, if land of both sides of the stream is owned by one man, he, of course, owns all of the water and its shores; where the state owns lands on both sides of a water course, not navigable and grants lands on one side bounded thereby, such grant carries with it title to the moiety of the water course. It has been held that islands cannot be claimed as alluvion because the land of the proprietor, in order to entitle him to alluvion, must abut on the river and allu- vial acquisitions become attached thereto. As above stated, lands of the United States are con- veyed by fixed boundaries and artificial lines, and the land is sold by the acre and never in gross. If it were sold in gross as an exact quantity, and in survey by the definite boundaries, and the number of acres fell short of the amount bargained for, the grantee would be defraud. ed, while if sold at a price agreed upon per acre and the survey disclosed a less quantity, grantee would only be compelled to pay for the land actually conveyed at the price stipulated. UNITED STATES SURVEYS. By the United States system of surveys, a whole state is divided into small squares, each of them six miles square, varying from this size and shape only when the large rivers or lakes make a variation from this rule RELATING TO REALTY PRACTICE. 617 Waters Navigable and Non-Navigable — United States Surveys. necessary. First: Before such a survey and subdivision can be methodically accomplished, there must be fixed points established; usually some natural land marks se- lected and a record made of their latitude and longitude. The primary lines starting from this point are of two kinds, those runniog north and south called principal meridians, and those running east and west called base lines. The small squares above named, are called town- ships, but are of uniform size and shape, irrespective of the irregularity of county lines or small streams or other minor natural land marks or obstructions. The tiers of townships running north and south parallel with the pri- mary meridian line are called ranges and are numbered thus, the range immediately east of said meridian line being range No. 1 east, and the second tier range No. 2 east, etc., and all the tiers of townships west of said line are numbered ranges 1, 2, 3, etc, west. Again, com- mencing at the primary base line and measuring north from it, six miles apart are lines fixing the number of the townships north of this base line, to-wit: In the first tier running east from established meridian, all the town- ships would be township No. 1, north, and if in the Four- teenth tier, counting the ranges north of the established base line, the conveyance description would be township No. 1, north, range No. 14, east, and conversely all town- 618 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable— United States Surveys. ships south of the base line wculd be township No. 1, 2, 3, etc., south. Under this system it will be seen that if the township north of the base line and its range east or west from the principal meridian are known, it is easy to find its exact locality and the number of the section and its subdivisions north, south, etc., are pointed out and de- fined. Each township, six miles square, contains 23,040 acres of land and is again divided into 36 smaller squares called sections, each of which contains 640 acres, and the sections are subdivided into quarter sections of 160 acres each ; also into one-half of a quarter section, or eighty acres, and lastly the smallest subdivision recognized by this system of surveys is one-quarter of a quarter section containing forty acres of land. RELATING TO REALTY PRACTICE. 619 Waters Navigable and Non-Navigable—Plan Showing United States Method of Survey. " | g 44 } Wrertieces = ba 9 3 3 9 nH . - ; Ss : ' ' M ; ! Pian 8 ; 2 ~ S| 6 4 Z 5 6 4,0 2 L é 5 & | y/o se 8 0 12 = q ul 78 6K 74 18 7} 14 v ag ake — = = 2 Q xX a OG 20 22 24 20 ee 24 = 2 = T2 S & : g a 390 we 26 50 28 4 a 7 zr 32 34 36 32 34 36, & me OR K = & K S sei el eiel elels ¢ eyr du o. 8 > o q ‘ Ple|lglwolu|n 8 10 we, = q oe N 8 a ee 16 gpa /# 19| 20 | 21 | 22 | 23 | 24 20 | 223 4 30| 29 | 28 | 27| 26} 25) 305 28 26 Rance ties] 37 | 32 | 39! 34) 95 | 36 | ¢ | 32 4 36 | panoe ni Eade RawGe / EAST ' RANGE “East Jo Daviess Co. /LtINo18 lm Berne North East Quarter of Sout last Qusrrer0/Stels Scace of MILES Townsnip | North RANGE 2. £AST (esos pe 2] LAafaveTre County : STATE OF WISCONSIN moe” West Quarterof SeclS lowasip I North Range 2 Last LAFAYETTE, County WIS, Plan showing U.S. method of surveys from Principal Meridian and base lines dividing large tracts of land into townships, sections, quarter sections, etc., in Wisconsin and other States. 620 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable— United States Surveys. As seen by this chapter, it is often a question to be determined, what land or realty signifies in a strictly legal sense, also to what. proportion the state, the private owner of the soil to which accretion, fossils, minerals, etc., attach themselves or to the person who first dis- covers and appropriates the same, which of these is the true owner. The word “Land” is practically synonymous with realty, and as such, it includes not only soil but every- thing attached to it, or growing or imbedded in it, extend- ing upward and downward, therefore the owner may cut off the limbs of trees that hang over his boundary line without committing a tort (Countryman vy. Lighthill, 24 Hun., 406) but has no right to fruit on trees overhanging his land. If the fruit of the owner of the tree overhang his neighbor’s land, can said owner enter without tres- pass and take the fruit? When a tree standing on one man’s land, sends roots into the soil of an adjoining pro- prietor, the one on whose land the trunk stands owns all the tree and its fruits (Masters v. Pallie, 2 Rawle, 141). When the tree stands on the line, they are tenants in common as to it (Griffin v. Bicly, 12 N. H., 454). Again, land in a limited sense, means soil of the earth and the water upon it, but running waters are not owned by those who own the land over which they flow. These riparian owners have only an easement in such waters, such rights RELATING TO REALTY PRACTICE. 621 Waters Navigable and Non-Navigable— United States Surveys. in waters are treated as real property. Standing water and percolations beneath the surface belong to owner of soil (Ocean Grove v. Asbury Park, 40 N. J. Eq., R. 450). Ice belongs to the owner of the land over which it is formed, but ice formed on public waters belongs to the one first appropriating it (See Appeal of Stoughton, 88 Pa., 198; Bradstow Ice Co. v. Rockport Co., 77 Me., 100; Wood v. Fowler, 26 Kan., 682). Minerals, metals and fos- sils, are realty and belong to owner of land as part there. of; also an aerolite which falls on land. In England, right to gold and silver is in the crown, but not so in the United States, where the government only owns mines as it owns other property, that is the same as private per- sons and not by reason of sovereignty (See Boggs v. Min- ing Co., 14 Cal., 279). But grants by Commonwealth of Pennsylvania and perhaps other states, reserve a percent- age of the gold and silver to the state. Following in this line of adjudication, viz., that min- erals, etc., belong to the land to which they are attached and are realty is the case of Godart v. Winshell (86 Iowa, 71). John Godart, in 1857 and at time of suit, Oct., 1892, was owner in fee of the north half of Sec. No. 3, Tp. 98, range 25, Winnebago Co., Iowa. On May 2d, 1890, an aerolite passed over northern and northwestern Iowa. A fragment of the same, weighing, when replevied and pro- duced in Court, about sixty pounds, fell on said Godart’s 622 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable— United States Surveys. (plaintiff’s) land and buried itself in the ground three feet. On the day after said aerolite fell, it was dug out of the ground with a spade by Peter Hoagland, in the pres- ence of a tenant named Elickson. The District Court also found the fact that Hoagland took it to his house and claimed to own same for the reason that he had found and dug it up; also that on May 5, 1890, Hoagland sold said aerolite in suit to defendant, H. V. Winchell, for $105, who held possession of the same till taken under re- plevin writ; that defendant knew at time of purchase, that it was an aerolite and fell on the prairie south of Hoagland’s land; that it was of a black, smoky color, showing the effects of heat; that it fell from the heavens 2d May, 1890, and that a member of Hoagland’s family saw the aerolite fall and directed him to it. Under this state of facts an action in replevin was brought to recover said property by said John Godart against H. V. Winch- ell, the vendee, from Hoagland, of the aerolite. In the District Court, the cause was tried without the aid of a jury and judgment given for plaintiff on whose land this stone fell, and in its conclusions of law the Court found that the aerolite became part of the soil on which it fell and that the act of Hoagland was wrongful, an appeal being taken to Supreme Court and therein an opinion de- livered by Granger, J., the Court says: “A scientist of note has said that from six to seven hundred of these RELATING TO REALTY PRACTICE. 623 Waters Navigable and Non-Navigable—Ports and H arbors. stones fall to our earth annually. If they are departures from other planets of the solar system, there is this inter- change bearing evidence of material composition. Upon what principle of reason or authority can we say a de- posit thus made shall not be of that class that it would be if originally of this planet. If these changes have been going on through the countless ages of our planet- ary system, who shall attempt to determine what part of the rocks of value to scientists resting upon the earth, are of meteoric acquisition and of the class of property designated in the argument as “Unknown things” to be property of the fortunate finder instead of the owner of the soil if the rule contended for is to obtain. The Court further say no similar question has, to our knowledge, been determined in a Court of last resort. Our conclu- sions arise, not so much from application of known rules as from want of defined rules for these cases. Our con- clusions seem nearest analogous to accepted rules of kin- ‘dred questions. Judgment affirmed. PORTS AND HARBORS. Private individuals can erect a wharf or dock for their own respective uses, says the Court in Baltimore wharf case: Any individual holder of the shore of a nav- igable river, or haven may use it for the purpose of land- ing his goods, which are not chargeable with any duty or he may suffer another to do so, upon any terms he may 624 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Ports and Harbors. think proper to impose. But no goods which are charge- able with a duty can be landed in any other place, than a public port. Land covered by navigable water may be granted by the State to an individual, and hence if the land covered by navigable water of a public port, was held as private property by an individual, he might have the right to demand and receive a reasonable toll for an- chorage in the ports. But the right to collect toll always presupposes a stronger right than the mere ownership of the soil along the shore. No toll can be collected by any one except it be either by prescription or by virtue of a franchise granted by the sovereign power. An incorpo- rated town or city, having laid out by authority vested in it by the State, a road to a navigable water as trustee for the public, has the right to use said highway to its full width to such water. It seems the Court would, in gen- eral, hold that it could even erect a wharf, or do anything thereon contemplated in its charter. Ferries, tolls, ets—Ferries being agencies whereby persons or things are carried over rivers or other waters, and the right to establish and conduct them being as a rule only enjoyed by virtue of a charter from the State, the doctrine that no one on a public navigable water can set up and conduct a ferry without prescription or char- ter is fundamental and undisputed (2 Rol. Abr., 140; Lan- sing v. Smith, 4 Wend., 21). Nor can even a riparian proprietary, though he owns the land on both sides of the RELATING TO REALTY PRACTICE. 625 Waters Navigable and Non-Navigable—Ports and Harbors. river, without consent of the State, set up and operate a public ferry and collect tolls (Young v. Harrison, 6 Ga., 130) there being no ferry rights appendant and appurte- nant to land, the proprietor of land on rivers may have right of ferry, but this right if it be so called is simply the exclusive right to land and the use of his own soil and if a right at all simply a right of private ferry. Ferry franchises are not limited either in England or this coun- try to ownership of land on margin of stream. It was decided that the dedication of a public road gave no right to defendants, the owners of a ferry, to land upon or re- ceive freight from plaintifi’s freehold on the banks of a navigable river (Charles River Bridge v. Warren Bridge, IT. Peters, 420). Ch. J. Taney held that the grant by statute to said plaintiff's company of the right to build a bridge over that river and take tolls, contained no engagement by the State of Massachusetts that privilege to erect another bridge contiguous thereto and on same line of travel and which might diminish or destroy the income of the form- er, should not be granted within the period of the opera- tion of the grant; the grant not being exclusive, by ex. press words, none was intended to be conférred. In the United States, Admiralty Jurisdiction, {t seems, has been extended to all navigable waters without reference to tide. In England, during a succession of “ages, admiralty jurisdiction was limited and circum- 40 626 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Ports and Harbors. scribed and the Courts shorn of a jurisdiction necessary to commerce by rival and victorious Courts. Thus the ’ admiral’s jurisdiction was hemmed in by locality which was the boundary of jurisdiction, but in this country it is not so. Admiralty Courts have restored to them those functions which they are peculiarly fitted to perform. “The gradual expansion of admiralty jurisdiction over all the great inland waters of this continent capable of bearing commerce without reference to tide is an instruc- tive lesson in the history of jurisprudence.” By Act of Congress, navigable waters leading into the Mississippi and St. Lawrence and carrying places be- tween the same, shall be common highways forever free both to the inhabitants of the territory and the citizens of the United States without tax, impost or duty. The Act of Congress, of 1789, makes the jurisdiction of Admiralty Courts to-depend upon the navigable char- acter of the water and not upon the ebb and flow of the tide. If the water is navigable, it is deemed public, and if the public is within the legitimate scope of admiralty jurisdiction conferred by the Constitution. Thus many technical tests of the navigability of waters have been, by legislation, modified and abolished. In the treaties between the United States, France, Great Britain and Spain all these powers recognized the navigability of the Mississippi and stamped upon it the characteristics of an inland sea and its ports RELATING TO REALTY PRACTICE. 627 Waters Navigable and Non-Navigable—Ownership of Soit of Rivers. are spoken of in the same sense as those of the Atlantic coast, or of rivers where tide ebbs and flows, and which are declared at common law to be navigable and Con- gress has followed the spirit of those treaties in admit- ting new states and declaring said river, the St. Law- rence and others, navigable. OWNERSHIP OF SOIL OF RIVERS In England, the soil in public navigable rivers be- longs to the sovereign. In the United States, the shores of navigable waters and the soil under them belong to the State in which they are situated, in its sovereign capacity. And the State is deemed to possess the origi- nal and ultimate property in all lands within its juris- diction. Chief Justice Taney says when the Revolution took place the people of each State became themselves sovereign and in that character hold the absolute right to all the navigable waters and soils under them for their own benefit, subject only to the right since surrendered by the Constitution of the General Government. In Polard v. Hagan (8 How., 212) Supreme Court holds this principle that the sovereign jurisdiction and right to the soil in a State resides in the State and not in the United States, except for temporary purposes, and to execute trusts created by Act of the Legislature and the rights of eminent domain occasioned by necessity. And for 628 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—Docks and United States Buildings. public safety for which necessity in case of insurrection or rebellion the sovereign power of the United States sits supreme and as sovereign holds its ownership of pub- lic lands for arsenals, etc. DOCKS AND UNITED STATES BUILDINGS. The government of the District of Columbia, for special use of the government, and the territories not admitted into the Union, by the Constitu- tion of the United States, and the laws under it, are committed to the general government. But the right of eminent domain over shores and soils under navi- gable waters for all municipal, not federal purposes, be- longs exclusively to the States and they only have the constitutional power to exercise it. It seems settled by the highest tribunal of our country, First, that the shores of navigable waters and soils under them were not grant- ed to the United States, but reserved to the State; Second, that new States have the like rights as the original States; and Third, that the right of Congress to appro- priate lands tor public necessity, conferred no power to grant shores and soils under navigable rivers (Houck on Nay. Rivers, 83). In Illinois, City of St. Louis attempt- ed to erect a dike from west shore of the State to “Bloody Island” and in Mississippi River, but within the State limits, and thus destroy navigable channel on Illinois RELATING TO REALTY PRACTICE. 629 Waters Navigable and Non-Navigable—State Has Power to Change Currents. side; injunction was applied for against the city on behalf of the people of Tlinois to restrain the work; the injunc- tion was granted on the ground that the work was car- ried on without authority from the State. However, the Court says while rivers must be free and open to citizens of other States vet where no material obstructions are erected by States within whose limits the rivers run, citi- zens of other States cannot complain that a State within its jurisdiction may do as it pleases with a river so long as it does not violate the rights of others (City St. L. v. People, 5 Gilman, 550-575). STATE HAS POWER TO CHANGE CURRENTS. This power is necessary for the proper management of the affairs of the State, and has been exercised since the foundation of our government. It can change cur- rents of rivers or even stop up some of its channels, when necessary to its well being, taking care to leave free nav- igation to those who have the right to navigate (8 How- ard’s R. S., ©. W. S., 212-231). In 1771 in Pennsylvania an act was passed to regulate fisheries so as to be consist- ent with individual ownership of the river. In New Jer- sey free navigation in all rivers, creeks, or streams where navigation can be carried on is secured. In Alabama, the law provides that navigable waters are public high- ways. In California the law, after declaring certain riv- 630 PRINCIPLES AND DECISIONS Waters Navigable and Non-Navigable—State Has Power to Change Currents. ers navigable, prohibits all persons from building dams and bridges across the same (Laws of Cal., 1850-1853, 248). By the act admitting Mississippi as a State there was a stipulation on the part of the United States that the Mississippi River and navigable waters leading into it or to the Gulf of Mexico shall be common highways and forever free (Houck on Nav. Rivers, 69). Sir Matthew Hale says fresh rivers of common right belong to the soil, but rivers where the tide ebbs and flows may by serving public interest be public as the Thames and Severn, as well above as below tide water. CHAPTER XIX. WILLS. The definition of a last will and testament by the old Roman lawyers rendered in English, is “The legal decla- ration of a man’s intentions which he wills to be perform- ed after his death (Blackstone 2 Book). By 7th Sec. (7 Wm. IV.) “No will made by any person under the age of twenty-one years shall be valid,” and by our Pennsylvania Act of 8 April, 1833 (P. L. 249, Sec. 3) “No will shall be effectual unless the testator were, at the time of making the same, of the age of twenty-one years or upwards, at which age the testator may dispose of real as well as personal or mixed property, if in other respects compe- tent to make a will.” By the same act, every person com- petent to make a will as aforesaid, being the father of any minor child, unmarried, may devise the custody of such child during its minority or for a shorter period.” A grand-father may devise an estate to his grand-children on condition that a certain person be their guardian, and commit the management of the estate to him. The Or- phany’ Court cannot appoint a guardian of a minor while there is a testamentary guardian who has neither re- signed nor been removed (Robinson v. Zollinger, 9 Watts. R.). Pears, 269 4 awacdaw mo nansvamarns veviaw ook, LO6 City of St. Lawrence v. People, 5 Gilman, 550 ............ 629 Clark v. Henry, 2 Cow., 324 ................ SE laa aores SGML Clark v. Jacobs. 56 Howe Pr., 519 ..... 0... . cee eee eee 652 Claris vy; Lyneh, 46 Barbs, 68) ss2 0824s eek ste eee oie ee 24 ewes 655 Clark v; Clark; 180 Pa; 186) ssesacs0. 50555 Cae oes tee aa te SS 581 Clifford v. Hoare, 48, L. J. Com. P., 225 .................. 26 Clippinger v. Miller, 1 P. & W., 64-71 ........... 0.000200, 195 Close v, Zell, 141 Pa., 390 2.0... 0... cc cece eens 554 Ghuté: v0 VOits;, 81 Barbs, SLL. cd esa Sse ob. 6 ered ede weg 9 Bee 96 45 706 TABLE OF CASES. Coates v. Hughes, 3 Binn., 493 ... 0.0... eee ee 6438 Cobb vy. Biddle, 14 Pa., 444 ..... ccc cece ee een enee 108 Code W. Va., 3 Wid., 597 to 699 2.0... cee eee 104 Code: We: Viav,, 3) Wds; 100) so2ss@e ress pena etumcd-coaeanes sede's LOT Coffin v. Coffin, 28 N. Y., 9 2... cece eee eee ee ees 650 COKE: Litt; 50) taeicoing gna. sth tg kak wien ge AOS Sees Nea wes 154 COG RA AG Sct eceeeareiac slg whos bianod ap theuncia' ae & aitage ine Rpade QS ates 165 Coke's Appi, 23° Pay 186). ccna race et dieade ahee ees 274 Coke’s Rep., Vol. 1, 106 ...... ilo Sede tiecesece aetbels Cactoeldetesg Stee OOD. Coke:on Littleton, 175 Bo. oie wig cece we echare ew aed awe tiene be 408 Cole v. Hughes, 54 N. Y., 444 2.0.0... ee ee eee 168 Collyer v. Collyer, 110 N. Y., 481 ............. 0. 0000000.2.. 652 Cowibe o Lame. 1) ee 2a) a cevs ay ohoess Ge vee eeyvnsaes 108 Gombs Vv; Bank, Bright, 63 4 .cuveayerseecaei aeveveresaneecs LF Com: ‘Vv; ‘Slifer, 3. Pais. Tl seresss ocadee strane sberecrencess 16 Com. v. Stauffer, 10 Barr, 355 ....... 0... eee ee eee ee BBZ Com, v. Shindle, 19 C. C., 258 2.0.0.0... cee ee ee ees B25 Com. vi Williams, 13) Pas 29.402. estos ce eeiee sae goss 151 Con. v. Allen, 30° Pans 40). asees salen beac on Shae Gated ae oes 42 Com, v. Wilson, 34 Pa., 68-7 ...... Hie cde Lea ewe nee cee Com. v. Vanderslice & B., 8 8. & R., 452 . 2 igiused Ge ara hae Rane. 195 Cone. v. Hartford, 28: 'Con., 863) 2 cc 04 cece sc eee oe Beas One 48& Gonklin, v,-Meyer, 1: (Gs (Bij 23) sia ghieren daa aati nc sidiaala rey 155 Congham yv. King, Cro., Car, 221 . ‘ Aosemese ses 16T Conner v. Long. 104 U. S., 228; 1 ‘Sawy. er, 268 eis gre taecbieoninas 584 Coulter y. Arnold, 161 Pa., 820 .................0.0.0.0.. 687 Conrad’s App.; 338 Pais 4T vacances sea e sd ges ed wees en tee cee 110 Cook vy. Neilson, 10 Pa., 41 avidin tut tain Ra we na hs Sinlare eal LOU, Cooke vy. Odd, F. F. W., 49 Hun., 23 te dormer etn ty hee aint er OO Cox Vi Henny,;32 Pan: AS: oo ese sceeans Ses awd a eae ¥ EEK ERS 554 Cooke v. Hutchison, 1 Kan., 50 .......................... 583 Costla vy. Whitehead, 20 La., Am., 341 .................... 494 Corp. v. Wallace, 3 Rawle, 165 ............. 0.0.0. c cece ees 115 Countrymen y. Lighthill, 24 Hun., 406 .................. 620 Convert v. Irwin, 3 8S. & R., 288 ...........2.............. BT County v. Brahenhurst, 16 Pa., 458 ...................... 429 Gratt’s: Ustate, 164 Pai. 520 so newasda cess deo oa4 wie SHAS RA SES 648 Craig v. Dale, 1 W. & S:, 809 oss gc ceaaeevs ca nwenas ves oe odd Crawford v. Boyer, 14 Pa., 880 .......................... 276 Credit Mobilier; 10°-Phil., 20 coca ae ceaw aves se ddis 825 Kee BERS 16 Credit Mobilier, 10 L. Bar., 87 ......... 0.0.2.0... ......2.... 16 Crooke vy. King’s C., 97 N. Y.. 421 2.0.0.0... ............. 592 Crnuger v Jones, 18 Barb., 468 ....... 0.0.0.0... 00.002 ee BOF Crosby v. Wendell, 2 Paige. 548 ........................ 653 Croswell Tel. & Telephone, 202-86 ..................... .488-7-9 TABLE OF CASHES. Crossman v. Crossinan, 95 N. Y., 145 .................... 649 Crouse vy. Murphy; 140 (Pa... 385. s ace 349 Heckart v. McKee, 5 Watts, 385.......... ccc eee ee eee eens 60 Heil & Lauri’s Appeal, 40 Pa., 453....... Dialers auch co uptaudes 196 Heil v. Strong, 44 Pa., 264.......... cece eee ee ee ee TT Heilbrun v. Hammond, 138 Hun., 474...................4.. 304 Hemphill v Tevis, 4 W. & S., 585...............00..-2-000- 429 Helser: Vv; Pott, 3 Barr; 19% iciccc ee ereaae gees deer etaed in aes 120 Hemphill v. Flynn, 2 Pa., 404....... 0.0.0.0 eee eee eee eee 430 Henderson v. Brooks, 3 S. C., 445.... 0.0... eee eee eee eee 202 Henderson yv. Sturgis, 1 Daly, 336............ 0.0.00. ee eee 260 Flenry: Vz Carson, 59). Pa, 2972. cewsoncn ode des dae vane aern ans 65 Herbert v. Tuthill, Sax., 141.......... 0.0... .... 00.0 e eee 318 Herbert v. Alexander, 2 Call. 508; 34 W. Va., 186............ 107 Herr ‘v:. Herr;-5 Pa; 428. 2: s20rcssies saa vadiwiadend savesas 353 Heroy v. Hendricks, 4 Ed. Sm., 768...................004, 258 Heskath v. Murphy, 35 N. Y., Hq., 23..................... 591 Hess v. Dean, 66 Tex., 666....-.. 0.0... cee eee eee 601 712 TABLE OF CASES. Hewitt v Hewitt, 5 Red’f., 271. ...... 0.0... ccc cece ee 651 Heysham y. Dettre, 89 Pa., 506....... 00... cee cc cee eee ee 156 Hiester v. Yerger, 166 Pa., 445 2.0.02... eee eee 676 Higgins v. Mgleton, 34 N. Y. Sup., 225........... 0.0.0.0 0 129 Hight v. Wilson, 1 Dallas, 102......... 0.0.0... cee cee eee ee 633 Hindson vy. Witherill, 5 De. G. M. & G, 301............... 585 Hitner Vv. Nge, 25 Pa., 808. cisco s csaasiaeenesiees oa ives 507 Hilderbrand’s Appeal, 39 Pa., 183......... 0.0.00. c eee eee 339 Hills: Aim.. Code L473; Sl tics csiscccas age eqns oon grossa aca bite 665 EEG oni SE PUSteeS : Maevinae cies han payee slew oie oe dae 578 Hill v. McDowell, 2 Harris, 14 Pa., 175........ 0.00.0 000000 5 246 Fal, “Vs Miy ers, AG Pas, 1b is sap ce’s cave gee sarin ss ae Bele ede Re 80 Hill v. Draper, 10 Barb., 454............ wether WAN oor eyeatlen 97 Hille, Hobart, 16 Min 100. oeiiae so o4he nce ede adeven dese 129 Fill ‘vy ‘Sewald,:53: Pai. 20 esns gee een sae we nes 26 Cores. 157-162 Bill 3. Hill. 43) Pa 52hy aeieeeweveeaggyseaodeas eae etenes 158 Hillerman vy. Ingersoll, 5 Phil., 148................22.0.005 123 Hitesman v. Donel, 40 O. .S., 287......... 0.0.02 2 ee ee eee _ 318 Hoffman v. Ryan, 21 W. Va., 415....................000005 316 Hogg v. Bramhall, 4 C. H. Gr, 74.0.0... 0.2.0.0... 0.2 cee eee 318 Holden v. Winslow, 18 Pa., 160...................0...0005 237 Holmes v. Coghill, 12 Ves., 206.......... 2... ... cece eee eee 152 Hood’s App. 7 Ill. Rep., 187.... 0.0... 0... cece ee eee 554 Hoops v. Parsons, 2 Miles, 241................ 00. ..000055 236 Hoop’s Estate, 174 Pa., 878... 0... 000 ce eee eee eens 550 Hopkin’s Real Prop., 10-11-22-24-137-323 ..... 152-155-163-164-167 Hopkins v. Meison, 42 How., 115; 61 Barb, 469............. 97 Horton v N. Y. R. R. Co., 12 Abb. N. G., 30......... 0.000000. 95 Hornwite «. Norris, 49 Pa. G16 a4 ces snc cea cua den ces dawens 161 Hotchkiss v. Auburn R. R., 386 Barb., 600.........0...0..... 100 Houseman v. Girard et al., 81 Pa., 256......... 0.0 ...0...00. Zie Houck on Nav. Rivers, 163-132-133-170............... .610-13-15 Houck on Nav. Rivers, 116-7-8...1........0 0000 cc cece eee 615 Houck on. Nav. Rivers, 69-88... ..654 ces we cee endo cane ennee 630-628 PLOW APG 183) 212: io cccuniysi ou ha ane deslaaromoniass elGaten fume n ate 629 Howell v. Eldridge, 21 Wend., 678.................00 00005 100 Homie vi Carr, 1. Ss, 182-3 ssdcse cous oh seer sawn eee oaks 585 Hoy ‘vi Holt, 91 Pais, SB. sea eecasiaee a ae winnie Waele! baled BR wRS 439 Hucker v. Cozzlivs, 92 Pa., 46.2... 0.00... cc cee eee 126 Hudson River Tel. Co. v Turnpike Co., 185 N. Y., 398...... 483 Hughes v. Parker, 8 M. & W., 224.000... 0.0.0.0 c ccc eee 1382 Flully; Sprat, 1 Hun, 298) cies sa dees craked as on adlaadddea avon 203 Hundu v. Anderson, 152 Pa., 386.......... 0.00000. c ee cee 164 Hunt-v:i Laguire, 5: Cow... 220. scsicin sawaedsiowews ks on 4283044 655 Hunt v. Bullock, 28 TIL, 320........ 0... 0c. ccc cee cee eee eae 601 TABLE OF CASES. 713 Huntingdon v. Huntingdon, 9 Civ. Pro., 182................. 420 Hurst’s Hstate, 147 Pa., 319.........0 ccc cee ee eee 164 Hurst v. Rodney, 1 Wash., C. ©. Rep., 875................. 165 Hutcheson v. Brooks, 31 Miss., 480.......... 000000000 ee eee 134 Hutcheson’s Appeal, 92 Pa., 186 .........0. 00 cc cece eee 197 Idings v. Nagle, 2 W. & S., 25.....00.. 0 cece eee 155 Ingals v. Hahn, 47 Hun., N. Y.. 104....... 0.0.0... cece eeee 130 Ind, R. R. Co. v III. R. R. Co., 118 TIL, 156... 2... 479 Ingrham vy. Meade, 3 Wal. Jr., 82.......... 0.0.00. ccceeee 152 Inhabitants Plymouth v Carver, 16 Pick., 183 Ins. Co. v. Thackera, 10 W. N. C., 104; 8. C., 11 Ibd., 391 .... 156 Irwin v. Nixon, 11 Pa., 419.....00 0.000.000 cc cece eee eee 188 Irwin vy. Hovey. 16 Leg. Int., 147........0. 000.000... cea ee 229 Irwin vy. Bank, U. 8., 1 Burr, 849............... eee en 112 In Re White’s Estate, 10 C. E. Gr., 501...............0.0.. 657 In Re Melon St., 182 Pa., 397........ eMule sea cmaren ect ite. 695 ) Jack v. Dougherty, 3 W., 151.......0 0000.0 eee 58 Jackson vy. Burchin, 14 Johns, 124...... Dacia tie hee Gee ear oes 7 Jackson v. Buel, 9 Johns, 298..........00000 0.0 cece eee ee 94 Jackson v. Woodruff, 1 Cow. (N. Y.), 276. ........0..0...... 15 Jackson v. Jackson, 89 N. Y., 158....................004. 650 Jackson v. Brown, 14 Johns, 224 (3 Johns, 459)........... 60-408 Jackson v. Scott, 18 Johns, 94.......... 0.2 cece eee 60 Jackson vy. Chase, 2 Johns, 84...... 0... 0 ccc cece ee eee nee 98 Jackson v Myers, 14 Johns, 358. ...0.. 0.000. e cece cee eee 408 Jackson v. Vrooman, 13 Johns.......... 02... cee eee eee ees 408 Jackson v. Brown, 8 Johns, 459 2.0... . eee ee eee 408 Jacksonville v. Jacksonville, 67 Til., 540.................... 477 James v. Morey, 2 Cow., 246.0... .. 0... cc ccc cee cee eee ee eee 305 Jamison v. James, 13 Wh., 456...... 0.0... eee eee eee ee 466 Jarechi v. Society, 79 Pa., 4038. ...... 0... cece ce eee eee 160 Jassey v. Bk. of New Orleans, 9 Paige, 619................. 586 Jenkins v. Smith. 1 N. ¥., 90......... cece eee ene eee eee 153 Jenkins. v. Pyé, 12: Pet., 241]. vicicsecc ica vse dens ee wanes acs 584 Jenkins vy. Schaak, 3 Paige, 242 2.0... 0. ee eee 420 Jennings v. Jenkin, 9 Ala., 285-291.....................000. 133 Jennings v. Conboy, 73 N. Y., 230....... 0... cece 151 Jenny vy. Zehnder, 101 Pa., 296....... 0... 0.0... cee eee eee ee 196 Jeremy’s App., 178 Pa., 477... 0.0 cece eee eee tenes 581 Jones ¥;. Bolton, 12: Pa., B39 s0 cies scale sa sein gee odie ces wsie ges 236 714 TABLE OF CASES. Johnson y. Stag., 2 Johns, 510 ........... 0.0.0... 00 eee 305-473 Jobnson v. Thweatt, 18 Ala., 741.002.000.020... cece eee 143 Johnson vy. Irwin, 3S. & R., 290...... 00.0 ce ee eee 67 John and Cherry St., 19 Wend., 659.................00-5 308-311 Jones’ Hstate, 27 Pa. S86 on wsaccss sei. ss gaint see nea came oad 197 Jones v. Whitehead, 1 Pars. Ep. Cases, 304................. 61 Jones v. Kroll, 1 Crumm, 85........ 00... cee cece ee eee eee 430 Jones on Liens, 52 (Vol. 1)... 1. eee cc eee eee 540 Jones on Hasements, 17-50-84-5 2.1.0... cece ce eee 27 Jones on Easements, 711-515-3386 ...............02 00 eee 492-34 Jones v. Gundrim, 3 W. & B&., 581.......-. 6. eee eee eee 120-427 Jones on Mortgages, 2, Sec. 1,647......... 06. cee ee eee eee 1382 Jordan v. Posey, 1 How. Pr., 123. .......00 0c eee eee cence eens 204 Jordan: y. Stewart, 28 Pa., 249 ese y sae ce wcaiine dem one wewan ¢ 54 Ikane v Sanger, 14 Johns, 89 .......... 0. cece eee 309 Kay v. Stallman, 2 W. N. C., 648........ 0.2... cc cece ee ees 32 Keating v. Condon, 68 Pa., T5...... ce cee ees 164 Kechol y. Traction Go., 187 Pa., 474..... 0.0.0.0... 002 c ee eee 692 Keir v. Peterson, 41 Pai, 68....... ccc cee en cee cee een eeeenes 78 Keichline v. Keichlime, 54 Pa., 75......... 0... cece eee eee 3826 Kkellog v. Kellog, 6 Barb., 116.......... 0.2.0.0... 002s eee 96-8 Kelly’s Estate, 1 W. N. C., 10... .. cee eee eee 339 Kent Coin, ch, Ad) cantons aed Pham camden ae aniane eas irked Sado 186 Weert. 25 235 eis vein ansiateres a) fdas cd samesuihlon megane Oe 593 Kenege v. Elliott, 9 Watts, 258 ......... 6... eee ee eee eee 118 Wenttedy: *v.. ‘SEGEH. Bo Wey. Oise wavecsecodovcnelenws wachenns) Qdauer-odeee 58 Kennedy v. Tucker, 8 Mass., 148.......... 00.00.00 eee eee 4 Kerly Ve Daly. 4B IN Vg. 84a cee ceainsine een eteuenan 256 Kesley v. McConachy, 1 Rawle, 447-344....’........-.2-505- 427 Kile, Sheriff v. Giebner, 114 Pa., 381...................---- 160 Kilpatrick v. Johnson, 15 N. Y., 822...................005- 654 Rime wv. Cride:. 20 0. ©. Big 20s easinonciscees cx eed en odes sax 261 King v. Wilcomb, 7 Barb., 263........ 0... eee e eee eee eee 512 King v. Gunnison, 4 Pa., 172...... 0... cee eee cece eee eee 1384 Kingsley v. Holbrook, 45 N. H., 318............-.00 eee eee 158 Kingsley vy. Blanchard, 66 Barb., 817.......-..-.. +... eee 651 Kinley v. Knox, 6 Dist. Rep., 617. ...... 50... e eee eee eee eee 124 Kiser vi. Reeser, 98: (Pa. Los csoanvss mawens oe wears eee 538 Klampworth v. Dressler, 2 Beas., 62-3.................55. nis Kilineh: ‘vin PriGé; “Woe “Viale, Bisiscacs, ccscaesiele ess estes sce atsunpdierend gostev aes ols Kline ‘vy; Johnson, 12: VAETIS, TQ. seco acs ba attire wince > 60 Kline's: Anpiy. 89) Pay 468 nce gs ou aed caw toe oeeaanheagiuewe de 580 Knabb’s App., 10 Barr, 186.2... 0.0.5. cee eee cee eee ee eee 230 TABLE OF CASES. 715 Knapp v. Baily, (Me.), 9 Atlan. Reporter, 122.............. 271 Knapp v. Reilly, 8 Dem., 427.......... 0c ccc cece eee ceeeee 651 Knaub v. Esstek, 2 Watts, 282......00..0.0...0.. ccc cece 54 Korn v. Browne, 14 P. F.S., 55.0.0... cee cece cece eee eee 112 Kribbs v. Downing, 25 Pa. (1 Casey), 399...............0.. 61 Kuhn’s Hstate, 38 P. L. J., 878. ...... 0... cee ee cece e aes 605 La Bau vy. Vanderbilt, 3 Ret’d., 384....................... 648 Laftin v. Griffiths, 85 Barb., 58............00 0.0 ccc cece ee eeee 158 Landell v. Harrison, 40 L. L, 4.0.0... 0.00. c cece e eee cece eee 156 Ladley v. Creighton, 70 Pa., 490.......... 0.0.0.0 cece eee eee 545 Lane y. Shears, 1 Wend., 4838...... 0.0.0.0... ccc cece cece eee 270 Lane v. Reynard, 28. & R., 66...... 0... cece eee eee ee eee 57 Dane ‘v, Late, 95 .N, Yi, 4945 oss ses esa dee bev abies dh ceanees G51 Langdon vy. Astor’s Ex.,:16 N. Y. Court of App., 34.......... 8 Lansing v. Smith, 4 Wend., 21.........0......0... 0.2 ceca ee 624 Larkin v. Dyer, 1 Del., 888 ....... 00... cece ee eee eee 156 Latham y, Atwood, Cro. Car, 515 .............0.....000. 154 Lauman’s App., 8 Barr., 472.-...... 0.0.0 cece cee ccc cee ceee 246 Law v. Patterson, 1 W. & S., 184......0....0 0.00.00. c eee 406 Laws of California, 1850-53, 248........ 0.00... cee eee eee 630 Lee v. Feemaster, 21 W. Va., 108............ 0.00.0... 005. 317 Leemer v. Miles, 4 Watts, 330........... 0.0... .0...c000e 160-162 Tee Einitay Bile L2GU eed tecnica’ cous ane Sede seashell erga nd Cee uimene 541 Lehigh Co. v. Kleckner, 5 W. & S., 181..........000..0...... if Lehman v. Given, 177 Pa., 584 2.0.0... eee 5d3 Lemon v. Slaats, 1 Cow., 592.......... 2.0.0.0 2 cee aee ere 204 Lentz v. Lamplugh, 12 Pa., 344 ......... cee eee 542 Leonard vy. Reynolds, 7 Hun., 73.......... 0000 c eee ee eee eee 256 Leroy vs; Forsyth, 2.P. & Ws; 514: sce ccaueasssaee tenes es 173 Lesher v. Gillingham, 17 S. & R., 123.................0.. 190 Leslie ‘v.. Randolph, & Ri. L285 se. candevesdedten seapes acces 421 Leving Will, 1 Dall, 458. .n.ccccec seit eh ee desde eee cane en BIB Lewis vy. White, 16 Ohio State, 444.....................005. 180 Lewis on Eminent Domain, Sec. 287.................0005 478 Lewlin on Trust, 1 Ch., 3 See. Li... ce ee ee ee ec ce ee ee DUT Life Ins. Co. v.. Bank, 57 Pais 8920400 esa sas nss wd reese eee deae 268 Lillibridge v. Coal Co., 148 Pa., 208............. 0.00 ee eee 538 Lineberger v. Newkirk, 179 Pa., 117...................04-. 212 Linn y. Alexander, 59 P. F. S., 481.......... 0.20... ..0 0005 679 Lattle’s Appeal, 117 Pa., V4: ..0.2.4.sesavcasen as eate caeger ne 680 Live Stock Co. v. Coal Co., 2 C. P., 117.......... 02.0.0... 157 Lockhart v. Power, 2 Watts, 371............ 2... ee ee eee 408 Lockhart v. Ry. Co., 189 Pa., 419.... 0.0... 0. cee cee ee eee 487 716 TABLE OF CASES. Logan y. Herron, 8S. & R., 459 oo. ee eee 62 Longbine v. Piper, 70 Pa., 378. ... 0.0... ccc cc ee eee 88 Leura Binal, 21 Pan 80 ea edi cased ead bee ne eee dees 116 Lowell v. Parkhurst, 4 Wend., 869...............0000 ues 98 Louis v: Jones, 17 Baz,-5 Fs; 2620 acs esaaniens daca eee ie ea peice 154 Loyd v. Hart, 2 Pa., 478...... 0.0 eee e eee cee teens 589 Loyd. ¥. Farrell, 48 Pa.; 193 cc. :00 ses cee bia sucess tha cenamss 551 Loy v. Kennedy, 1 W. & S., 396....... 0... cee ee eee eee 633 Lewin. On: “LEUSts: 648 Westcott vy. Cady, 5 Johns Ch., 334....... 0.0... 0.2 e eee 652 Weston v. Arnold, L. R. 8 Ch., 1084, per James L. J....... 493 Westbrook v. Gleason, 89 N. Y., 641; 79 N. Y., 23.......... 306-7 West Va. Code, 1891, Ch. 71, Sec. 11.............. 0.2.02 005 665 West v. Pine, 4 W. C. C. B., 698. ..... ccc cc cee cee cee cee ees 57 Western S. F. Soc. v. Phil’a, 31 Pa., 175 ...............008 476 Westlake v. Koch, 29 N, Y. St. Rt, 288..................0. 95 West Jersey R. R. Co. v. Camden Ry. Co., 26 Atl. Rep., 423.. 486 728 TABLE OF CASES. Wetherly v. St. Georgio, 2 Hare, 624..................0005 603 Wharton's Law Die as.cisseae seeiees des 11-637-444-79-186-431 Wheaton Int. Nat. Law, Vol. 1, See. 27 ................182-505 Wheaton Int. Nat. Law, Vol. 2, Sec. 16 .................... 175 Wheeler v. Conrad, 6 Phil., 209................. 000 cee eeae 508 Wheelwright v. DePeyster, 4 Ed. Ch., 232............... .. 47f White’s Will, 10 C. C. Gr., 501 2.0... ce ee ODT Whipple v. Don, 2 Mass., 415 2.0... eee ee ce eee 589 Whittaker v. Brown, 10 Wright, 197...................0002 111 White v. Leslie, 54 How., 394........ 0.0... 000. cece eee ee 307 White v. Arndt, 1 Whart., 91.0... 0.0... 0. cece eee 163 Whitehill v. Gottwalt, 3 P. & W., 318 .................... 173 Whitbeck v. Dyo, 3 Johns, 422....... 0.0... c ce cee eee eee 98 Whiting v. Pgh. Opera Co., 88 Pa., 100.................0.. 508 Wickersham v. Young, 1 Miles, 395................. 0.0000 407 Wickley v. Eyster, 58 Pa., 502....... 00.0... cee cee cee eee nee 434 Wier v. St. P. R. R. Co., 18 Minn., 155............. 0.20.00. 478 Wilder v. Davenport, 58 Vt., 642....... 0.00.00. 0c eee eee 166 Will of Crumb, 6 Dem., 478 ........ (66o4 deee ned eBay ta wees 650 Williams v. Controllers, 6 Harris, 275..............0.00005 2) Williams v. Maus, 6 Watts. 278....... 0.0.0.0... cee cece eee 91 Williams Real Prop., 450........ cc cece cece cece eee e neces 140 Willams v. Reaman, 2 Dev. Li, 488.0... 0.0000 ccvewevascaas St Williams v. Short, 155 Pa., 480........... 0... ....0000005 170 Williams v. Milligan, 188 Pa., 386...................02005 81 Williams v. Miller, 6 Wend., 228.......... 0.0... cece eens 419 Williams v. Brook. Hlec. Ry. Co., 126 N. Y., 96............. 481 Wilson vy. Horner, 59 Pa., 166 ....... 0.0... eee eee eee 67 Wilson v. Shoenberger, 31 Pa., 295....... 0.0.0.0 0c eee 213 Wilson v. Forder, 30 Pa., 129.... 0... 0... cee cee eee eee eee i Wilson v. Freeman, 7 W. N. C., 38....... 20.00.0000 cee ee eens 155 Wilson v. Giddings, 28 O. S., 554. ...... 0.0... 0c cee eee 313 Wilson v. Cochran, 46 Pa., 280. ..... 0.0.0.0. c ee ee eee en eee 555 Wilson v. McCullough, 19 Pa., 77....... 0.0.0. ccc eee cee eee 578 Wilson’s Case, 8 Wis., 171. ... 0... cc cc ccc cee eee tee eee ees 144 Wilklow v. Lane, 37 -Barb., 244....... 0.0.0... c ccc eee eee 95 Wimer’s Apps. 1 Why. 96iececceeie ccs ate eves ees sawee ee bec 332 Wisner v. Teed, 9 How. Pr., 148......... 0.0.00. ce eee 208 Witherly v. Dunn, 32 Cal., 106......... 0.0... cee eee 827 Wolf v. Shelly, Coke’s Rep., 1, 94-106....... 0.2.0.0... 02.0005 666 Woeckner v. Motor Co., 187 Pa., 206.......... 0.0... e eee 691 Wood vy. Goodridge, 6 Cushing, 117. ...... 0.0.0... cece ee eee 148 Wood v, Bach, 64 Barb. 194646644.466- 0000» ee bee deed eevee $21 Woods v, Tang 2S. & Ka Blase csenpewed wag eeseee wea yearn 5T Wood s. Towler 26 Wan, 682. .0.c6.ce088s sie¥ eee ee edews « 621 TABLE OF CASES. 729 Wood v. Reynolds, 7 W. & 8., 406............. 00.000. e eee 197 Worth vy. Curtis, 8 Shep., 228 0... ... cc. ccc cee ee cee res teces 589 Woullam vy. Hearne, 2 Lead. Cases Hq., 404............... 594 Wright v. Wright, 41 N. J. Eq., 882. ........ 0.0... eee eee 151 Wright v. Vicker’s Adm’r, 81 Pa., 122; 98 Pa., 493; 59 Pa., 118 entiete atateyatasceaas Amaee a See te ie dane acheter ahh cea ae noe 267-298 Wyllie v. Pallen, 87 L. J. N. S. Ch., 782....... 0.00.00. c eee 272 Yale--v.. Seely; 15) Vit.: 22). od cacca cow cea eaws meas jive» 158 Yearworth v. Pierce, AleynD, 31........ 00... cece eee eee 158 York “Bk. App:; 36 Pay; 458i 0.2 .ceues scaeevs cee erea doues es 197 Youngman y. Lynn, 52 Pa., 416................ apg anal Maas 554 Young v. Wilson, 27 N. Y., 351. ........ 0... e eee eee 304 Young v. Harrison, 6 Ga., 181.......... 6... e eee eee eee 625 Young’s Wstate, 187 Pa., 485........ 0.0. e ee eee eee 580 Young v. Lynch, 4 P. L. J., 289.2... 2. cee eee eee 212 Zigler v. Fisher, 3 Barr., 365......... 00.00. c ee eee eee eee 61 Zigler’s App., 11 Casey, 173 (85 Pa.)........ ec eee eee eee eee 277 STATUTES TABULATED. Bi@t: ALTOS; Ga Sih, AB cs ccauns.b svacdis ca. avon 824s Wises Welangawsieurctaa saw ecs 51-121 AGE 1105 yA Sie Tae BD asters tials Gee ih east hem tllle eicWoniaes mutes 42 Act 28 May, 1715, 1 Sm., 95.................. 530-111-445-446-462 Act 24 Feb., 1721, 1 Sm. L., 124.... 0.0.0... ccc cee ce eee 491 Act 1731, 1 Bioren, 250, 1 Sm. L., 192..................0208- 11 act 21 March, 1772, 1 Sm. L., 870.......... cee eee eee 432 Act 21 March, 1772, 2 Bioren, 65, 1 Sm. L., 878............. 508 Aet 10 (2. Sitois, B 10k. 6 ee sa tiewerhskeehes ete dew as ead, 113-482 Act 1775,..1. Stns Lis 424.4 sces cc cses cs eere desea vss Hervarees 463 Act 14 March, 1777, 1 Sm. L., 448.......... 0.2 cece eee eee 463 Act 27 Noy., 1719, 2. Sm, Dis, 419 cessed esos aaieas aut ha ales 109 AOCt 1CT9,. Te Sim.. Ley ASOD ceed wa ytaras here wawas owe wees 109 Act 22 March, 1785, 2 Sm., 300....... 0... cc cece eee cee eee 64-73 Act 1791, 8 Sm., 7-6 (5 Mar)... . cc. ccc cee cece cent eeee 323-4-5 Act 13 April, 1791, 3 Sm., 80...... 0... cee ccc eect eee 833 AG 1192: Br Sites Toscan ci eaiew sine ocho goa eas ane sales 296 Act 19 April, 1794 (8 Bioren, 147), 3 Sm. L., 147, Sec. 9...... 2 Act 4 April, 1798, 8 Sm., 331, Sec. 2-3.......... 00.0.2 .008- 188-94 Act 11 April, 1799, 8 Sm. L., 886............. 0... cee eee eee 406 Act 1 April, 1803, 4 Sm. L., Table Repealed Acts.......... 219 Act 2 April, 1808;. 4Sm.,. 89.00 6.cac caida doew ties wae and ae 51-76 Act 17 March, 1806, 4 Sm. L., 800 ......... 2. eee 219-243 Act 28 March, 1806, 4 Sm., 386 ............. 22... 406 Act 21 March, 1806, 4 Sm., 352....... 0.0... ec e eee e ee 51-87 Act 7 April, 1807, Partition of Lands, 4 Sm. L., 400.......... 404 Act 7 April, 1807, 4 Smith, 398............ 0.2... 00 eee eee 411-414 Act 1806, 4 Sm. L., 338, note.... 2... . ee ee eee eee 87 Act 18 April, 1807, 4 Sm., 476. ....... cc ccc ce ec ce cece es 52-87 Act 15 April, 1807, See. 3, 4 Sm. L., 477.................... 80 Act 28 March, 1808, 4 Sm. L., 528, See. 1.................--. 220 Act 30 March, 1811, 5 Sm. L., 231, See. 12 .............. 269-542 Act 8136.6: Say Taig 2 5 tes ee he aaah cies ae ee alee aves 221 Act: 1 March, 1815, 6 Sm. Li; 250: see ec su ces dese eg cevive ses 221 Act 11 March, 1815, 6 Sm., 308................-. 2.0 -0005- 64 Act: 13) March, 1815,, 6: Si. Ts., 290s sisi cee Saldana iecere neve Tw oece 390 Act 22 March, 1817, 6 Sm. L., 445...........0..002 0 eens “, 221 Act 1817, 6 Sm. L., 439... a ailas gr qorsbs Pavat graels alate aongtch Sedeate Spe 16 Act 24 March, 1818, 7 Sm. L., 119.......... 0. cece ee eee 222 Act 28 March, 1820, 7 Sm. L., 808........ 0.00... eee eee 462 Act 2 March, 1822, See. 1, 7 Sm. L., 520.................... 77 Act 29 March. 1824, 8 Sm., 291. ........... cc cece ee eee eee 88 732 STATUTES TABULATED. AcE 1826.9 Sui TG vnsnsye ea teas eases Ses ob HOR PERO REE 558 Act 26 March, 1827, (9 Sm. L., 308, Sec. 1.)................ 189 ACE IS30, Bs iy 298s ae vcn ches thee eid dae Sao 266-292 Act 1830: PB. Ws TST ea ka ences dtintenediads Amie 266-430 ANGE April, 18380) Py ng 298. 2 oad Jes wa amuse esau smencadanE Me 297 Ace 1831, Py Aa; 248 24 inti ead e earned eae RNS RAY 222-234 Act 15: March 1882) P, Ls 1890. ca ec sida icnaae ence wns ee 3356 Act 29 March, 1832, P, Le 191. 2.5 ese a cane peitenes 299-341-542 Act 29 March, 1832, Sec. 54, P. L. 2U8....... 0.0... cece ee 346 AGE 1882. PW. DoOucrestakginesas forbes gauss alesse s 223 AG T8382) Pi Tay Bla aes slate aan eke oe oe de ae tele 415 AGE TRB? “SEG: BS. i, dd Rad.acuiatacnaed undies ash neue baad doe 343 AGt T8832, Ses: S59 Py Tay 190 ee caccas econ Taian aide aso mieten wade 342 Act April, 1933). (Ps Wb; 20s «aw sues sa ngue slew dine 8 22a ASA be BAS 353 Act 20 Mareh,. 1833, (Ps Tas. 99.5 exsews Weve cd ne es oo eee cede 7 Act.8 April, 1833. P. Gi: 288% casas eas ced cae cover es wabera kes 12 ACE 1833. Ps Th. 250 nd sscaeesddine tached ewes dances cuales 642 Act § April, 1838, P. L, 249...............048. 532-631-633-634-645 Act 8 April, 1883, (Pi Ta. SECs ssen wave aies 8 44 ddctedtadsa dene aacacneiece 351 Act § April, 1833, P. L. 318, also 319............. » 2-852-354-8355 Act 24 Feb., 1834, Sec. 25, P. L. 77, Sec. 1, P. L. 73-76-84. ..... digialaaacaue ates P Gh ne atari es weet cee eee ee ee ee -190-837-340-375 Act 24 Feb., 1834, P. L. 73, Sec. 12........... 0... ...0005 337-346 Act: 1885,. Ps: Toy, WQO 218 a celsa. sis iass. ee Socal 5 su ee ON poe aes REAP 223 Act 11 April, 1835, P. L. 199......... cee ee eee 407 Act 11 April, 1835, P. L. 200......... 0... cee eee eee 402-409-412 ACt: 1836; (Bi Tos STCS19) ssi icnadwasera wad ie ses dei ames sade 16 Act 18 Tune, 1886, Py Li 542iccccs cece cs eeu sci saceevasinss 385 Act 13 June, 1836, Sec. 82, P. L. 587......... 0.0.0.0 .000 000 410 Act 16 June, 1836, P. L. 695-769-755. ............... 37-39-541-223 Act 16 June, 1886. P. L. 722....... 0... cece ee eee 542 Aet: 1886; ‘See, 04, Ps Loy T18 soca soa Hews sae athe, wipes oe ea wera 42 Act 16 March, 1838, Sec. 34, P. L. 684............0....0.00. 242 AOt 27 HG: TR88, Po dig Oi Ges es saves ck seas cer wus de dawe awn 462 Act 8 April, 1840, P. L. 249.0... 0.0... cece ee ee ee 124 Act 14 April, 1840, P. L. 384 2.0... cee eee 324 Act 28 April, 1840, P. L. 474, See. 24....................... 218 Act Act Act Act Act Act Act Act 3 June, 1840, See. 1, P. L. 598 ...........0.......... 409 13 OGt, TS40=41,. Pe Ta 22h casas sis arayaee cas: teens a asesnniven bate 14-41 5 May, 1841, P. L. 446, See. 5.0... eee eee cee ee eee 63 12° March; 18425 “Py Ts, OG is eyoscaiwatete segs: paey Rage slaves ie hard 246 30: April), 1844, Py Diy, 5825s ajas cad ade goewee ee anlenwwass 14 16 April, 1845, Sec. 5, P. L. 588. ..... 0... 0.0... ee eens 246 21 April, 1846, See. 1, P. Li. 424-426............ 0.0008. 63-407 1 Aprils 1846) Py L124 vats oo is bane aGuls Mea tee anes 68-445 STATUTES TABULATED. 733 Act 22 April, 1846, P. L. 489...........000.000. 0. eee 558 ACU ASHE Pt Vi 2A Oi steed uiue cate enue Omelet Hed tase aehate 446-447 Ace 27 Fat... VS848), Pe We WG i. eis ccd cae ewes dow Bead ahs dhs ent 632 Act 11 April, 1848, P. L. 587........... 0... ....008.. 634-635-645 Act 9 April, 1849, P. L. 526-7...... 0.0... ccc cc ee ee 88-446 Act 10 April, 1849, BP. Le STL sscsinecc sees cecteese cadena cae 558 Act 24 March, 1849, P. L. 675 ....... 00... c eee ee ee PAB Act: TL. Sine; 1899. Ps Tis WOT vtincs ate gui Gav nce tenes A Aneta 89 et T8490" (See: "D) P2 Te 26 ica es Weve Mages eoau eeblibnsy 88 Act 14: Mareh, 1850;. Pi Di W906 ces ss ised cas Gaver age ceyaeeasy 526 Act 6 April, 1850, See. 4, P. L. 591.2... 0.2.0... 0.0.0. eee ee 88 Act 22 April, 1850, P. L. 575-553-549 .............. 108-116-446 AGE 25 April, 1850, “Pe. Loy GTA css sean one wad een eeu 116-126 Act 26 April, 1850, Sec. +, P. L. 581-591.............0..... 63-446 Act 1850, P. L. 575, See. 88, P. L. 575.......... 0.0.00 ee 235-446 Act 8 May, 1850, Sec. 18, P. L. 716........ 0.2... 0.0 ee ee ee 63 Met: 3 April, 1851. Pe Wie BOD: ia eos neti here lee eae ea ogee tee 348-346, Act 14: April, S51, “Py Di. GL5 i wo scarica ec egsee a mnd o@ b we ae bee 65 Act 4 May, 1851). Py Ta. S10, aicac cas cad avis Saw 8 Lee ee Rhee 65 Act 4 May, 1852, PB. L. 615... 2c eee teen eee 88 Act 18 April, 1853, P. L. 504, also 503 .............. 111-302-603 Act 18 April, 1858, P. L. 464-467. 2.0.0.0... 0... cee eee eee 88 ACE 20: WED. 1854.2 L. OO. pati ca cede tet alent atuavica emt asians Soe 13 Act 14 April, 1855, P. L. 238,. 0.0.0... 6.0 ce eee 243-247-252 Aet-26 April, 1855, P. Ta 828, See, Dac. ss. nee osu cannes war ace 15 Act 26 April, 1855, See. 11, P. L. 3382....... 0.0.0... eee eee ee 530 Act 27 April, 1855, P. Ls. 369. ....0.. 2.0 e ee eee 67-120-401-414-415 Act 27 April, 1855, P. L. 368. ... 00... 66 cee ee eee 123-506 Bett May; 1855, Be ATs wis og eials hae ena edie sd eae ee 13 Act 7 July, 1885, P. L. 259.000... ccc cece cece eee eee Lee. 648 Act, 1855, P. I. 368, See. 2.225 scnksaeie-neuecu wens 358-120-108 ACE ASD) BL Ta S48O es ivied sete eee bes Ves ee dee eta hae ae 646 Act 4 Feb.. 1856, P. L. 21....... 0.0.0... cee eee ees 824-330 Act 21 April, 1856, P. L. 496....... 0.0... eee eee ce ees 247 Act 22 April, 1856, P. LL. 582, Sec. 1-2 ...........0-..-5- 67-548 Act 9 April, 1856, P) Tis 20854 oscne ess caeicad sence ene a ees 15 Act 21 April, 1856, P. L. 496 ........ cee ee ee eee ee ee eee 247 Act 14 Feb., 1857, P. L. 88 2.2... . 2 cece cee eee eee 406 Act 21, April, 1858, P) Dy 412... ssac sews cee nea eee aiens 15 Act 13: April, 1859, PB. Li, 6086 <0 vee +s de cea idee omen ieu Rae 68 Act 11 April, 1862, P. Li. 484-478.......-.......0-00- 194-256-257 Act 22 April, 1863, P. L. 548, Sec. 1.0... eee eee ee eee 82S ACC 1863, Py Ve VIDS. secs scott end a a ew eh caine ek eeu ae eae aoe 422 Wet W868) (Ps Te 029 sau saa side kaise nage sew eG ruele eath de 245 Act 19 April, 1862, P. L. 402. ...... 6... eee ee eee 247 734 STATUTES TABULATED. Act: 10 Aug,,; 1864, BP. Le. 962). wictits ca cinta cea ae ade sea 3825-330 Het, W860; Ps Thx: AGO Gs. ive. desie~s b tetaid ok dete soard: Muaer ee Been ORG MeO 245 ACt 27 Nov.,, 1865, PB. Te, 1227 eck cece ecu ee eet s we aed psa 339 ACt 22) Mareh,, 1865, BP. hi S086 se ssnawy vee eas cme asie nanos 326 Act Feb. 28, 1866, P. L. 127 «0.0.00... 00. cee ee eee eee 245 Act 17 May; 1866, .P.. Tu, 1096 3..2. ova cess ce eees wate enin ees 364 Act (23 March; 1867; Pe Ti: 44. sc45 20ssers oss easess ee sees © 275-293 Act 2 April, 1868, P. L. 9........ iu cde bins eee neewe eee s doe es 472 Act. 14 -Ajiril,. 1868. Pe Wa OT ss ciao ee paelid eked hedioceens 365 Act 1 Aug., 1868, Sec. 2 P. L. 1168..............0......20.. 243 ACt-15 April, 1869, Pe Ves 40 esis ee ee eona ie See Pes goa ae Blew ee 122 ACt TT April; 1869; Py Ti. 69!) 2 scsi say heleiidwe whens HS 433 Act 4 Mareh, 1870). Ps Ti. 80s sccsc. oe eyes hex oe o5% ¥en da eons os 434 Act 3 April, 1872; Ps Vis 385 seo5 essed one ew soca awa dica 89 Act I8%8. By Ta SGt-cs setiecs iad soumine sansa geiedaldhde geeog 324 Act: 9 April, US72) Be Tai 40 scien hea ie ace ddiess soe iaevaieeduand 250 Act 19 May, 1874, P. L. 206-7......... 0... ce nee 360--362 ACt 21. May 1874, (Pe Lis 2216 cas a cgeryenea ahedaneaion a eawAceapateete © 369 Act 26 May, 1874, P. L. 229............: Scab iaceers Gaye we Meee oy 447 Aet 13: June; 1874; Pe Ui, 28386escsccgax cecges ¢oisawetadeetea 19 Act 18 March, 1875, PB. Li. 82... cb i ci cee cece eee neues 447 Acti dt? Meb. 1816, Pe Ta. 04. aac calcd wa nevis oa bake nhelas ove a 219 ACh IG March; I816, Pe TAT sas wa euche eee aeanaa ocean aka ee 324-4 Ae 14 March A816) 25 Mie Gost Sale gitintias als sausalan soe eee oe 448 Act 28 April, 1876, P. L. 50.............. Te RMS Jade Sie se Cadet S tts 366 ACEAT April, 1876; Ps Le A vcseyianaacvawied oeiwewewetancas 19) Act 27 April, 1876, P. L. 49, Sec. 1..............20.-.0005. 329 Aet 2 May; 1876) PTs. Gb soosie cahece a o Hhae edd eonge elmer 208 87 ACE AST Os: Res: Mie VAs icschdiat ds eis Sabu gd, ne eteuid &, Sa wieyachtnc A Shaun Soe 433 Act: 13: May, 876, Ps Ds 102 oes ccas goede anid aaee ea ne eae 364 Act 23 March, 1877, P. L. 26-29................ 87-280-281-288-289 Act 24 March, 1877, P. L. 39-40......... 0.0... cee ee eee 367 Act’3 Mays A878) (Pe Bie 48) coaen cans nace na see cba aeeed 448 ACh 22) May: ‘ISI8; PP: Li Sbkeres vs cotes tawveee ASS ee tah 3 142-367 Act 22 May; 1878, P. TL. 98 ois coves. ees esas cess ay 81-89-4489 Act 24 May, 1878, Pi Us (BIT. awake ti wsternaeiueseiecee OT Act 24 May, 1878, 188.....00 00 cece cece ceceesececeneeeeees 449 Act 25 May, 1878, PB. L. 149......... 0. cece cece cece ee ee eee 450 Act 25 May, 1878, P. L. 152-154 0.0.0.0... cece eee . 213 Act 12 Jume, 1878, P. L. 205. .... 0.0... cee cee ee ee 2G1-126 Act. 6 March, 1879, P. Li. 4.00 cece eee ci wer ewe taeesesa cee ATL Aet 13: Mareh, 1879; Bs Ta: Poss soa e ee te hadek taeda eee ay ye gas 390 Act 1: April) W819, Be uly ccs nets ee oak ae pose S eee 368 Act: 1 May, 1879, P.. Ta. 40. o5 scan neck kseeecsennets anaes 2239 417 Act 18 May, 1879, P. L. 55.0.0... ec eee eee 390 STATUTES TABULATED. 735 Act 4 June, 1879, P. L. 79, See. 2... cece ee ce ee ee ee 386 Act 11 June, 1879, P. L. 122-186.............. 88-48-248-451-252 Act 11 June, 1879, P. L. 127-151. 2.2... 00... eee eee 81-90-389 Ach dd June, 1879, Py Ti 184s ccs oe cee ee een ed alae ease ee 451 Act T881. Pe Diy 842 acs ccaeie enya ianee dese alee ns gine ee 282 Act 5: May: 1881, Pi ts Wie ceca ad ci saeeca wees sates eas ee nes 362 Aét 10) Mays 1880, P Ta 8s cesieds tees aacins cies cet wewes 201 AGE 2 May, USSh, Pe Di 24. son eid w dgesiace datheveda had Menor we 83 Act 26 May; 1881, P. Ds 85. cc ccan ce wsewes oniwecanawacinnees 453 Act 2 June, 1881, Py. Ti, 45) iis occa access vanes earn ras 296-391 Act 8 June, 1881, P. L. 56-81-84............. .248-252-282-289-544 Aet 10 Jane, 1881, P.. To. 9lacvessacss. gtav savas onssas sas 282-290 Act 10 June, 1881, P. L. 102-6............. f suid andes iad: ayae tou Oe 6 AGE A Wune, 28835 Bs Ge Dbsiccicscasss co tieswanteregannss 393 Act: 5 June, 1888) “Ps Tas 886 os visi og cigcae ge sass aa ais we wens 856-370 Act 5 June, 1888, Sec. 1 & 2, P. Lr 79... 0... cece ce eee eee 76 AGL IS Tune; 1883, Bo Le 89 cccencsddad eves saisivacse cag. 86 Act 18 June, 1888, P. L. 97-98 ........... eee eee eee 8-363 Ace 13 June, 1883). BP; Ti LIS ss. ess cee sasawes ce eee dacs 9 Act Tune; 1888. 88s ae win oe dia gence card saa ca ee eeadacem wea 3640s 356 Act 20 June, 1883, P. DL. 181 2.2... eee e eee ee eee ene e s B56 Act 20 June, 1888, P. L. 188-130-1.................--4-- 284-369 Act 20 June, 1883, P. L. 186........ 6. cece eee eee 286-453 Act 27 June, 1888, P. L. 163 sane Rk Lelae oh beens eae exe s202-Od4 Act 27 April, 1885, P. Tu. 161......... 0... e ee ee eee 273 Act 11 June, 1885, P. L. 108... 6.6... ee eee es 823 Act 28 May, 1885, P. L. 24....... cece cece eee eee) 45 Act 3 June, 1885, P. L. Tl... 6. ee eee eee ee 393 Act 11 June, 1885, P. L. 108... 6.6... ee eee eee 823 Act 24 June, 1885, P. L. 152....... 2 eee eee eee ee eee 82-90 Act 24 June, 1885, P. L. 157. .... 66. ee ee eee 284 Act 24 June, 1885, P. U. 160-1 ...........-.4-5- .125-285-291-452 Act 25 June, 1885, P. L. 178... 0... eee eee ee ees 21 Act 30 June, 1885, P. L. 251... .... 0. see ee ee ee eee ees 370 Act 22 March, 1887, P. L. Ciccidlda antici sueneehy oekg geo eer Act 18 April, 1887, P. L. 22-58.........0- +. ese eee 856-362-370 Act 28 April, 1887, P. L. 72-75 2.2... . eee ee eee ere 363-388 Act 6 May, 1887, P. L. 80.....-. 6. e cence ete e teers 559 Act 18 May, 1887, P. L. 118.....-..- +. sees eee 245-249-253 Act 24 May, 1887, P. L. 202......-. 0s cere rece ree rete 387 Act 25 May, 1887, P. L. 261-263-264......--.---+---- .857-387-647 Act 25 May, 1887, P. L. 270..... 26s ee eee eens 286 Act 1887, P. L. T9..... cece eee ee eee ener terete rennet 557 Act 6 Tune, 1887, P. L. 350..... 6.0. eee eee teeters 20 Act 1887, BP. L. 204 2.0... eee cee eee tenets 534. 736 STATUTES TABULATED. Aet 1. June; 1887,.P: Th; 289% c206 ees gas ceaciee teas we deus wine 201 Act 3 Jime, 1887, P. Lu. 332-8387. .... 00... eee ee eee 218-250-253 Act 24 May, 1887, P. L. 188 ..... 0. eee ne 442 Act 6 June, 1887, P. L. 868... 0... cece cece ce ee eee 393 Act6. June, 1887) Be Diy: 350 cs iwessies wa ee ee adedws sede canes 20 Aeti23 Web. 1889, (Polis Sie sateats one aacnsosiecad. vn 6 Sees ake BESS 79 Act 8 March, 1889, P. L. 10-11........... 0... eee ce eee 84-90 Act 4 April, 1889; Py Ubi 28334005 casaay ba ceeds oe ees Oe wees 3871 Act 23 April, 1889, BP. Li. 4G. cca secsuaces ec dees cole sd eeesne « 46 Act 2° Maty,. 1889, (Ps Ta, 6G) sv isisea venat at wale enacts sane ee eat 33 AGt 4 May, 1889, Pi Di, 88 sis vied ee cee ewes eetae yee HE 393 Act 9 May, 1889, P. L. 175-166........................24-124-455 abet 4: May 1889) Ps Tis 19: ocsovwse vasa ae aiavad ac pace eet 394 Act 9 °May,; 1889)) Po Tn T4aGs..i:c paca see pave ae aeae aoe waged DaL NS 371 Act. 23 “May, 1889, Pe it 290 x gue view ed's ceunseeeorseeeiaes 534 Act 9 May, 1889, P. Gi. 182) s ccanseceesaecceaaaiee nes seen: O45 Act 23 May: 1889). Py Lis 20 Tis secdiscectse gos dan eiamcteaaa a wales 491 Act 15 April, 1891, P. L. 15-18........... 0... ccc ccc eee 21-322 Act 22 April, 1891) Py TQ) ages oem Ros gaps s pa Tae see 214 ACE 12 Maye TSO Ps TS. SB Bis searcaig gl taltd a anaieldgaliers ian ane ec wate x 456 Aet 20 Ma ys 1891: Pe Ws O8isanwag ene ee Yea e Wesese wich he send 45€ Act 1 June, 1891, P. L. 159... 0.0.0... 0 cee ce eee cee nee 457 Act 2: June, 1801, Ps Vis 168s sce ceca ees yew cnn ews ge cwe pie 458 Aew& June, 1891; Pi Ds. 2O8is6 csevcaaaues sc eae oe eon eee 76-86-90 Act 8 June, 1891, P. L. 211-225..........00.00.0.00...... 21-254 Act 8 June, 1891, P. L. 244....... 0... 00 ccc eee eee 456 Aet -O Tine; 18915. Ps Ty. 249 oeseiecs aanive od wide aaa a Oey eee oh 20 Act 9) June, 1891; PP: 2b 2 eaexe arate ae HOM ewe ut os Ae eee 20 Act 14 April, 1893, P) Wi. 166 2. vice cneg es aceon eek eoenvna 328 Aet 18 May, 1893). Py. Ti. 88 auc ay waes ca deeds kaa oodeee ees 22 Act 19 May, 1898, P. LL. 108-9-10 Act 24 May, 1893, P. L. 127-8......... 0... ccc cece 7-43-459 Ack 25 May, 1898, Bi LicI8ds sass ic eis ce sci ewes ca denen 84-90 Act 25 May, 1893, P. L. 186. ......... 0. cece ce ee ee es 329-830 Ae? 1893, (PS Te 108 Oeil vival dacnta ewe sen eee x ese ees We ee ais 534 Act 5 June, 1898, See. 1 & 2, P. L. 79...................... 85 Act. 6 June, I893; Pi Vis 82854 22540 ees geese was Gens ees 329 Act 8 June, 1898, P. L. 344. ........ 0... cee ee eee ee eee BIE Act S Sune, 189385 P eT BOCs ii sa sal esis 9 aens hwt-gtguende gua seas & 374 Act 8 Tune, 1898, Pe Thy 892s vase ccc aa eck aaniace soem eae 873-542 Act 10 Jume, 1898, P. L. 415... ccc cee ce ee eee eee 22 Act 12 June, 1898, P. L. 461........... 00.000 ee ee BA53B 74 Act 16) June, 1893; (PEs: 64g aa sy gigas ease ne 6 a ees eases 374 Act 16 May, 1895, P. L. 84. 2.0... ccc cece cee ee eee 250-254 STATUTES TABULATED, 737 ACE 21. Mays, W8955.2Fs Tos, BQ isc soins eatin aoe Wie lslaens wee 4 Kaine 24 Aebi22) May. A895) Ps Aa: MOGs. tee aigsma on auavarcneacs aan eens anh erent 322 Act 22 May; 1895; Ps Tis Ts wiser wets dies ccc ccnieanave mabe 394-539 AGt 22 Maly, 1895). PT TA, cena wa wu aanitcnens aie eats 346 ACt 28. May. 1895, Ps Ts, 124 0c os aaceecanidwen eens cdeweeees 459 Act: 29: May: 1895; Pi Ly ALS 5 cee ecg capes sagan Seeee anes 24 Aet 18 June, 1895; P. Te 197 ccwovs co nescseeeasaa ee nuwicd x OID Act 20 June, 1895, Ps Tus B45 6s. ke cette s nee wees wean ane 91 Act 24 June, 1895, P. L. 264............. 000... cece eee 25 Act 24 June, 1895, P. L. 241..... 20... 0... cee eee 330 Act 24> June, 1895) -P. Wh, QBT sa acsa weve asisadie ctequeeaqennnes 417 Act 24 June, 1895, P. L. 247-264....... 0.0... cece ee eee 460-541 Act 25 June, 1898 P. L. 282-805..........0000.00..0.20.. 434-645 Act, 26 June; 1895, Po Tas Ba Gece sc ee ccoctdcca scavsisve.a anda we waiavel ol 85-88 Act 26 June, 1895, P. L. 369.........0 00.000 c eee eee ee 251-254 Act 2 dnaly, 1895; Ds Th AQ Ovannde cieisno Anevinay wigtelnae euoleunass 38 Act 10 Marchy 897, Pi TiS) occ. ctaielsndtemenassmise a aemusants 397 Act 30 Mareh; 1897, Bi Ls Paws cs eer cn ncsenk te eens wees ss 44 Act 29° April, 1897,. P:. Tu: :352-qee82s or aeisen acs tamanseacs 363-364 Wet. 20 April, TOT, TR Mi 2B bos sci seco as ye sehad a anecb tenes west Meas weaeattas 25 Act 12 May, 1897, P. L. 58, See. 5.2.2.0... ce eee eee 372 Mek 19: Maye T89% Tes diy GC. cokes y candies marca adeh a takorees 695 Act 25: May; 1897). Pe Soy S8ica sc aserancnodaegatanvsatnecoess 216 Act 25 May, 1897, P. L. 81-86-88. ............ 0... eee eee 45-461 Act (26 May, 1897; Bi Tue: VOD aca ssc a ccs trees cin Raeunvcnad Rantlden, og 46-462 Act 26 May, 1897, P. L. 94......... eee eee ee ene 202 ACH 14 June, 189T,, Bs Tis TAQ «vce sarseiscece wrist snacaiena renee Mundane een 126 Act 14 June, 1897, P. L. 142, Seca. 1............... 0.0000. 356-359 Met. OT uly, TSO. Ps. Wi 212 isons s susie af etna daar Doma 216 Aet 15 June, 1897, Po Th. W5s.25 excess caeersapeessergnrseee 252 AGE 15 June, 1897,, P.. Ts. 159, SEG. Des. doce cscecsieernigee wren ine § 872 AGt: 23 Jute; 1897; PDs. 200, oe ence scsi aed bree esas aoRdnern 2 andes 647 Act'9 July; 189% Be Tis 219 sawascncawoes ta. nvee a anneniaangargts 395 Act 22 March, 1899, P. Te. 20....... ccc ee cece cee eens 559 Aci 24 March, 1899, B.. L. 20s... c00v sarees ee vacareaeeies 461 Act 10 April, 1899, P. DL. 84.... 0... ce cece cee eee eee eee 462 Act 19 April, 1899, BP. Ta, 61.0.0... cee eee ee eee eens 471 Act 28 April, 1899, P. I. 120, 123, 61, 120, 157. .470-471-472-537-647 Act 6 May, 1899, P. L. 257. ...... cc cece ee eee ee eens 471 Act 28 April, 1899, P. DL. 117.20... cece ee ees 433 4+7 CONTENTS. CHAPTER I ADEMPTION. Definition of ademption. The taking away of a legacy...... Where testator bequeaths a legacy but alienates the subject of it, it is ademption........... 00... cece ccc eee ees Ademption is always in cases of testacy..............2c0 eee ADVANCIOMENT. Advancement is an irrevocable gift from parent to child.... Doctrine of advancement reasserted in Pennsylvania by act OE “S38 's ae saps hy ah sie iy a BE Ra MORE ele cataera sess Gas Advancement is applied in causes of intestacy............... Both in advancement and ademption oral proof is admitted to confirm or deny the same@............. cc cece cee e ce aes Opinion of court in Minor v. Alerton, doctrine discussed.... If a child be advanced equal to part of his share it is ad- vaneement Pro TAnt0's civ secs ed eee eee 88 pate oe eles Oral testimony resorted to in determining if gift was an ad- VANCEMENL. 1.20245 sete save-mtonaOsiinlonaue A Sle aaah amadentele te Whi. An advancement may only be Pro Tanto...............04. Advancement to be accounted for from time received...... Value of land advanced, the amount paid for it.. fens If testator gives legacy by will and sells, subject of it is cs (2.000) 800) | ee ce at Where parent, etc., bequeaths to child and afterward makes provision for it—ademption............... 20. cee eens ASSIGNEES. Act 10 June, 1881, Duties of assignees in certain cases...... Act 1898, Court to order sale of assigned property in certain BOROUGHS. Law as to dividing lines between two townships..\........ Law as to dividing lines between boroughs................ Jurisdiction of U. S. over lands in tp., ward or city........ 3-4 34 740 CONTENTS. CORPORATIONS. One object of corporations successive holding of lands, etc. .9-25 Invention of bodies, politic belong to the Romans.......... 10 Corporations under and prior to the constitution of 1790... .10-11 Powers under Acts prior to constitution of 18738............ 11-12 Powers conferred by acts 1840, 1844, 1858 and other acts... .10-17 Radical change in creating corporations by the Constitution AGOPtE, In, AST. a-sccisiens. a4 agence egies <6 Wadiede wales o nines 17 Acts pursuant thereto; general provisions of the law........ 17-25 CHAPTER II. Easements. Subterraneous support.....................27-28 Hasements. Lateral support..... 2.0.0.0... 0. cee ee ee es 29-88 ‘Easements. Light and air................0.0. 00.00.0000. 30-31 Easements. Ancient HEhtS: cvagi saree hee se RS ore Ree hese 30-31 Easements cases discussed ..........0 .2 cece e eee ee eee eee 32-33 Escheats Acts of 1889 relative thereto .................... 33-37 Execution, Acts relative to...........0.0. cece ee eee flake 37-38 Inquisitions, Acts of 1836, 1840 and others ................38-44 Forestry Reservations, Statutes concerning................ 44-47 CHAPTER III. EJECTMENTS. Desire to acquire and hold real property gave rise to this ; ACTON: 60 Nenise- 246 Mechanic’s Lien against building erected by contract valid.. 246 Mechanic’s Lien on coal mines, machinery, etc .....---+++++ 247 Mechanic’s Liens, amendments of lien authorized.........-- 247 Contracts waiving Mechanic’s Lien law to be filed in Pro- thonotary’s Office ......e eee cece es cece ener eee teenees 251 Mechanic’s Lien law extending to electric fixtures and wiring. 252 N. Y. LAW. . Decisions relating to liens against public buildings erected..256-61 OHIO STATUTES. Méchanic’s Lien ACts .ccccss cewesiaweas eee css ods sseaden 261-263 748 : CONTENTS. N. J. LAW. Claim to be proceeded with within one year from time work OTS asian a aie ae (aie, hetdesews Widde(nitie Nh wi ae MAN Neeew. Kelana 263 CHAPTER IX. MORTGAGES. Irormerly mortgages in England were treated as estates in the: Lan: sess vis waeee noes eRe Rae eeRD DET REA EEE was 264 But long since held to be not estates, but only securities. . .265-6 Defeasance may be in mortgage or in separate writing....... 270 Notice of mortgage divided into four classes ............270-1 Recorded notice under recording Acts ..............-000005 270 ATG ACUTE] MOTICR: ross scciroiece, ulecehe apie oleate ten asa lone wiatatnece Gaara 270 Presumption of payment of mortgage................ eee eee 272 Lien of mortgage when prior to all other liens............. 273-4 Divestiture of mortgage. Dien, yess s osteniess agua todas LTE Recording of mortgage disctissed ......... 6.6. ee cece eee eee 275 Acts concerning mortgages since 1878................. 279 to 297 MORTGAGES. N. Y. Mortgages ONLY SECUTITY . cscs ceeisce se cn a ciee boo Glare wa wl eee eters 308 Valid if defectively acknowledged in certain cases......... 304 Recording not necessary as against mortgagor.............. 305 Registry SAME: AS NOMCO oa wc cscnagercas sinters peGldwens weurers © 305 Slight error in spelling name not to invalidate.............. 305 Prior unrecorded mortgage has priority over second unre- COrded MOTtLAVeSs isewerys sseavcine Sade vensaus sé eae s 306 Two mortgages given same time, neither has priority...... 307 Mortgage covers improvements in certain cases........... 308 Mortgage to secure note security for renewals.............. 310 Conveyance intended asi mortgage. Court will decree a TECONVEVANCE: cccasasin niin vata rtawmiuny wow males s 310-12 MORTGAGES IN OHIO. Conveyance with lease back, mortgage ................4.. 312 Mortgage good inter partes. without record................ 314 Mortgage only effectual when delivered for record......... 314 Mortgage duly indexed in Deed Book valid................ 314 Remedy for not indexing shall be against the Recorder.... 314 CONTENTS. 749 MORTGAGES WEST VA. Deed may be shown to be a mortgage............. ec veces 316 Written contract to pledge realty constitutes a mortgage.... 316 MORTGAGES N. J. Everything subject to contract may be mortgaged.......... 317 Mortgagor deemed seized against all but mortgagee or his BIBSILS cg ecs cis apes aasctee rapes! Cam avetele bias” MGunsgues mane ee aeees 318 CHAPTER X. NOTARIES PUBLIC. Authenticity of acts in other states and countries ........ 320 Notaries’ duties defined 2.0... .e. cee eee eee cece eee 3820 To keep record proceedings, protests of notes, bills of ex- GHADSEY OU wei vesuauance, ied Ssigeraies- Geaele he Ale caw ees RSS 320 Also to keep record of acknowledgments of instruments, names of parties, addresses, etc., so as to trace deception BN LLAUG: sake Oia “Eee Re 530-1 Wills, where whole estate is not devised................08- 5381 Devises or bequests in restraint of marriage..... ... 531 Preambles when treated as surplusage............. 532 Testamentary age fixed by statute............... 532 Made in trust for religious society less than a month before Gesgth’ os cecg vessel, ee eeay secs: we bees 532 Searches for Sheriff’s and County 'reasurer’s sales........ 532 Where paper title is doubtful .................... 533 For adverse CODVeyaNnces...... fee eee cee ee eee 533 For ejectment: Sults: 232 oe se vealsa aa eae agate es 533 And inquiry for prior conveyances not yet recorded less than 90 days from search; also bankruptcy proceedings, infancy, etc.............. seeeeee 533 For coal, oil, and other leases...............0 2005 535 POP tak) SAS: 4 sated a nue ees dead eee he cas eels oa 535 For charges on land, and covenants running with Van sete? anu ee waaGekeds ee, pyeteaws! Sasededeaned 536-7 For exceptions and reservations.............-.04- 538 For mortgages and agreements to mortgage, etc. .539-40 For judgments in Common Pleas, U. S. District Court and Circuit Court, and Supreme Court... 541 For Mechanic’s Liens, awards of arbitrators, other lien, Us: Pendetts vaca cae cannes ese cee eis cee s 541-3 for recognizances of sheriff .......... 0... ce eee eee 544 For insurance policies, U. 8. special tax........... 545 For lunacy proceedings, habitual drunkards, etc. .546-51 General and special warranticS ....... 0. cee eee cence eee 551 Grantee in deed of general warranty, purchase price of the land only recovered .........e eee eee cee eee eee ee 551-55 Measure of damages for breach of this covenant price paid for Tealty .. 6. cece eee eee eee ce eee tee etet eens 555 Incumbrances contingent as to actual injury to plaintiff.... 556 Search for collateral inheritance taxX............ eee eee eee 557 Estates other than those which pass to father, mother, or lineal descendants is taxed .........e eee eee eres 557-8-9 Amount of said tax, $5 on every $100. clear profits.......... 558 Estates of less value than $250 not taxed..........---++-+- 558 Lieng of resulting trustS.......... cece eee eee ee eee tee tees 5438 Abstracts of titles, plan and form of.......-.--+-++++es> 560-74 756 CONTENTS. CHAPTER XVII. TRUSTS AND TRUSTEES OF REALTY. rusts denned xeuGdscerewincd eid es Whew oiee Qeaedes st ase 5TD Adaptation of trusts originated in part from ingenuity of PV ANIG) «ziccareceees pc cancetierosein Secieteua ertite deeds ten webs eens. be araaias aphoSutaabars 575 Active and passive or dry trusts .......... 0... cece eee eee 576-7 Feme covert can create a trust........... cee eee ee ee eee 517 Any person competent to make a will can create a trust.... 578 Resulting trusts defined ............ cece eee eee cee eee 579-583 Parol evidence may be offered to overcome legal title. .. .579-80 Defendant holding legal title and agreeing to hold, subject to interest of plaintiff is a trustee....................00.. 581 Conveyance to a wife raises a presumption that it is not a EUS Sasige. Soegaetta at em eeaoe, demas tie wally Rosati se arthereteecs 584 Conveyance to one partner is, in equity, conveyance to the ATM: Glove. odag nieiwgainad aku saaetiewtieshipoas Ghumwaniee ees 585 Agent employed to purchase realty, in his own name, is trustee for principal ............ 0. eee ce eee eee 586 Guardian, as a rule, not permitted to convert personalty into TEACH te. oss dG Giana sik sae a danced ise.) amuse ems Aer y 588 Infant’s lands sold by order‘ of Court, proceeds remain realty 589 A father, if able, is bound to maintain his infant children.. 589 Simple and special trusts defined—mixed trusts............ 591 Legal or illegal trusts. Illegal where for purposes of vice, TPA UC: Ct Cais s srcariawiale a: celend Gat. Biles: etesspgeausd « Sie tae st rove sedann Ne aia 591 Implied trusts, such as are implied from the words of the instrument asccsiicdeie Sac heehe da Bassoons ee wv Paes 592 Incompetency or disability not to defeat a trust as equity never wants for a trustee ...... 6. ce eee eee eens 593 Trustee must pay all rates and taxeS.......... ee eee eee eee 595 Trustee can grant ordinary farming leases, but not a rever- SION. GA craiewicte tear caitlownelS dala 2 SATS RSE ROO ReeE eT AS 595 Charitable bequests or deviseS ......... cee ee ee ee ee ee eee 590 Doctrine of cy pres discussed ........-.-. see ee eee eee 597-8 Trusts relating to bond-holders of R. R., ete .........-..-- 599 Mortgages by R. R. companies to trustees, rolling stock..... 600 Care to be used in depositing in banks by trustees........ 602 CONTENTS. 757 CHAPTER XVII. WATERS NAVIGABLE AND WATERS NOT NAVIGABLHE. Definition of navigable rivers.......... 0.0. 607 ATMUVION GOHMeG was ears os eee eee WEse IS EER dulelaaa diodes 607 Rights of the state in navigable rivers.................00. 610 Banks and shores of riverS ........ 0.0.0. c ccc cece eee eens 610 Description of land and lines of survey.................0. 611 SOSt-aSUlViGY S! 4s oa bcmdctgce, eke auaadie Gabe dapiskea at 618 Ports and NaLrporss 4 ccesks ose a acledee ad ewnasqeesacae eee 8 623 P'OYTIOS! os wees cessed aha, Bids alee maar Aad Swe AW ONE: SEAT ee ate 624 Ownership of the soil of rivers........... 00.00. cee cee eee ee 627 Docks and U. 8. right of eminent domain.................. 628 Lands may be bounded in grants by natural objects or mathematical lines .......... cee ccc cee ee eee teens 611 Lands may be bounded by ocean, lake or other visible thing. 611 Mathematical lines may éstablish boundary .........:.... 611 Visible monuments may attest with accuracy points estab- NIShEG: qscseSegesia Wesssaees Bbes4 ask wind ywAet eee. 611 Description of townships in some states is by sections and EPAGHONG oisicaecacceeoe amanda Behe Ao earn isetya rants, Ae reed 611-12 Sections of 640 acres sub-divided into quarter-sections...... 618 Purchaser from U, S. takes by metes and bounds ........ 613 By this range system the section survey does not cross river. 613 Land by the U. S. method is sold by the acre and never in Such U. S. grants constitute what is called in law ager TM TMS aves eee eee SENS Se Bs SR eRe SRS eke 614 Purchasers of fractional sections not riparian proprietors.... 614 Persons adjoining a river not navigable are owners to centre Of StKOAM) tec dacnd, siedewsy Keegan, Gang eee 615 As to navigable streams, in general, abutting owner owns to the water's edge: «a4 se¢s4 ses coy Reese eetas ee eeraee ye 615 Plan showing division of lands into twps.. secs., quar. secs., EO coi cg sacs an CtB Le AP a Sea en CR lab Anaahat bate fat anmesce eae AEN 619 758 CONTENTS, CHAPTER XIX. WILIS. Will must be signed by testator or be directed by him to be SUSTIOG, veces strates Guards irons eee alneldnds WLR Qe everett »+» 6382 Will, as a rule, must be proved by two witnesses.......... 632 A married worman may bequeath or devise property....... 635 Revocation, Of Wills: cise eee sien eo a Hass Gal Se a We wanien ee aie 636-41 Olographie “wills s.4 sscie's cca so Ghee sages 8% See Se ea ee 641 Acts relating to wills and principles discussed............ 642-8 WILLS—NEW YORK. Burden of proving mental capacity on the one propounding £OE PrOD ate svscccsswaas vy sauiese tale WE-eals sud ease aw aeasies 648 Substance, not form, determines the force of a will......... 648 Mutual wills from one person to the other valid........... 649 Wills in pursuance of agreement irrevocable................ 649 Photographing of Wills 2.2. .scsescacec cae vee ceeee eee nes 649 Chemical tests of wills permitted ................. ee eee 649 Request to attest will, publication............. 0... cece eee 650 Signing mark or cross valid........... ce eee ee ee ee eee ee 650 Testator’s name may be written by another................ 650 Acts of testator sufficient if speech be defective........... 651 Technicality not to defeat intention of testator ........... 652 Testator’s mistake not to defeat his intention............... 654 “Descendants” includes but issue of the body............ 654-5 Word “Issue” generally means children................+4-. 655 WILLS—NEW JERSEY. A man cannot have two wills ................ hole Bie LODE Widow may hequeath her CropS ....... eee eee ee eee eee nee 657 Provision for wife enciente......... ccc ee cee ee ee ee ee eee 657 Children born after will made .......... cece eee eee ee eee 657 “Die without issue" OXPlGiINed cae. .avaesass ess 2a4 cna saeus 658 Contingent legacies, provision ...... 6... eee e eee e eee eee 658 CONTENTS. 759 WILLS—OHIO. The term “will” includes the codicil., sivas seg eee eet 659 Devises to religious corporations, law relating thereto .... Gov Wills may be kept in probate office ................... 659-60 Penalty for refusing custody of will ...........--..0.0-08- 660 Two years allowed in which to contest will .............. 660 Last or spoiled wills, provisions made ...........--++.+05: 660 Title of purchasers not defeated, in certain cases ........ 661 Rule where estate is taken from one devisee to pay the debt Of the Others ccicdwew eve eed dase. Ghee aE Kaas 662 CHAPTER XX. RULE IN SHELLY’S CASE. History of the case entered Trinity Term, 23 Bliz., A. D, 1581 D tei naate, dahertars SEs Mat ke ht edeh eas Se eaa dyson Mesos 664-66 Principles involved in the rule .......... cee cece ce eee eee 667 The antiquity of the rule applied long before the case itself Was tried! scan 2 saw eee eee We GSS ae es a wMNderes sass 664 Case of Wolf v. Shelly, which gave the rule a name...... 666 Facts of the case stated—special verdict .................. 666-7 Arguments of counsel for plaintiff and defendant ........ 668 Lord Coke atty. for the defendant ...................... 668 Decision of the Court after great deliberation .............. 669 The Queen’s great interest in the case ........... cece ee eee 668 Rule in force in Pennsylvania ............... 0. ee eee eee 665 Abolished in N. Y. as to wills and deeds .................. 665 Abolished in N. J. as to wills ....... 0... .. 0. ee ee ee ee eee 665 Abolished in Washington as to wills ...................0.. 665 The rule discussed under the general heads descent and pur- CHASE accesses 2 Geteudnhe sahara Pen ease HEE EO EES 670 Example given to illustrate the rule .................... 670 Guthrie’s Appeal, opinion of Strong, J—the rule is law in PenNSylVaNIa. wsexca ser scswe eases Moyws eee yoe s ... 671-2 Shoup v. DeLong, discussed in which rule the applied ...... 676 In Heister v. Yerger, testator, though not her intention de- Vised (A. £00: sdeow shea ge RGR EA RS Oe RS A eRe Cee 676 760 CONTENTS. Taylor v. Same, word “Issue” in general construed a word of JIMUAtiON) sey eikickees Weebnbees@ GUERK een wen wee 677 Sheelly v. Niedhamer, discussed, citing Duer v. Boyd, ete ..678-9 Construction of an Instrument in harmony with rule may de- feat intention of testator .......... ccc cece c eee ee eee 680 CHAPTER XXI. PRACTICE—ACTUAL. Preparation of a case for trial .....................0005. 681 Concerning the trial and its incidents .................... 682 The trial, selection of jury, etc ............. 2 eee ee eee 683 Opening of case to jury, care to be used .................. 683 As to record and other evidence to be offered ............ 684 Propositions, divisions and order of presenting ............ 685 Fxamination in chief, rules to be observed .............. 688 Cross-examination, rules to be observed ................ 688 Preparation of points to be answered by Court............ 690 Summing up to the jury. cscs cossgceca dae eevanaveundadesees 691 Time and manner of excepting to change of Court ........ 693 Practice in trial of forcible entry ........ ........2..0005- 696 Good reputation of defendant substantive evidence ...... 697 Reserved points, when exception to be taken .............. 698 INDEX CLASSIFIED. ADVANCEMENTS AND ADEMPTIONS. Advancements and Ademptions— Principles governing euch nearly the same ........ Advancement an irrevocable gift ................ Ademption taking away a legacy ................ Doctrine of advancement in Penna. Act. 1833 ...... Doctrine of said Act applies where decedent dies in- HOSTHLC Co a kelsiiawe aki ws, o ema eer tuk aeeetes Doctrine of adeuentian apeties ane aeeeient dies: INCOStA LE jen scrtig ccd doe wien Sie igiicie Baeble Gane 3 Fact of intestate settling estate on child, prima facia evidence of full share ............ .....ee eee Same doctrine of Act of 1883 promulgated by Act of IOS Ww dean ioe hee edottacs ska toewees Child advanced equal to part of his share, takes no share to said amount. L. 1794 .............. No other evidence necessary to show conveyance .. Orphan’s Court has jurisdiction of advancements. . Presumption of advancement overthrown by oral PROC hawidnweie Kigateeia eenetag nwa’ Heir claiming advancement can introduce oral proof Admissions of child shown against his claim of no advancement .......... 2.200 e ce eee eee eens Advancements pro tanto value of land time of na vancement Shown ......... cece eee e eee ee Advancement accounted for by child without in- terest ........ tates a aan Hoes se Melee As Ademption takes place only where suarenit bequeath tO: A CHING oi ais vst diss: Seana Mie teed Hosea dain Hele If testator having given legacy alienates, it is ademption ..... Nplate tea okey bP eee BEG S's Doctrine of English Court concerning ademption.... If person bequeaths to child and after makes pro- vision for {t—ademption..........-..+...6-- Seals ft fet we to to Go 7 762 INDEX CLASSIFIED. BOROUGHS. When dividing line passes through house on land, owner to Choose Tesidence. . Lay (Sis cicie oe soe nalnw desea nist gas eens . 73 When dividing lines between adjoining boroughs separate lands Court can change. L. 83 ........... 00-0... 0005. 8-9 Jurisdiction ceded to the state parcels of 2 acres in boroughs 9 Sma MWe RSD cea Mas oray aa eR yeddva agp Seeae awl Seek Curae dp ace eae hud Sek 9 CORPORATIONS. Principal object of corporations successive holding and en- JOVIME “PLODSLUY: -srccsa's 6. Gwin lees ieakea es, Gceest eee es Reaves orand.avepone’ ece 9 Privileges, estates, etc., once vested, except by dissolution, is VOStEd: LOPEVER sock cnscise sa Siete Se oree ea eRe ee « 9 Antiquity of bodies politic dates back to Roman law....... 10 ‘Ecclesiastical corporations were at early date established.. 10 One general feature of corporation is unity of purpose...... a Practice in formulating corporations under Act, Pa., 1791.... 11 By earliest statutes of Penna., corporations not especially empowered to hold lands ............. 2. c eee eee eee 12 Holding of lands by a corporation, authorized in 1791...... 13 Also Act of 1854 enabling bodies politic to obtain charter to TOT OAICy a3 aiace ak aes doa Wea ign lacs ae and Guha Sees 13 But corporations not to hold real estate of greater value than $5,000 yearly income ............ ce eee eee eee 13 Increase of the powers of corporations. ................... 18 Sheriff’s sales to pay debts under stat. 1844................ 14 Power to hold and sell realty conferred on Ins. Co.’s, Build- ins ASSOClAtONSy w.saiomlaadn- ylang wed’ ecendaae’aees 15 Court has power to decree dissolution in those not created by BT! COME ieee israel uencendves oe Cage's Reisen dees arelevensaee, Seopa ncs Smeedat sae 15 Act of 1836 regulating service of summons on corporations AOBTCPALE c0she a isa deen adignwidnedun Bias Hy hes Womans 16 Service to be made on presiding odicer, ‘caaliien, “gregurer, secretary or chief clerK ............. cece cee cee ee ees 16 Where to be served, viz., in place said body is located...... 16 Municipal corporation to be used in Courts where same is Sim ated) wis bee's +E ane hese wae Rea ees son Seen 16-17 In actions of trespass, summons how served.............. 16-17 Acts under Constitution of 1878. ......... 0.0 c ee ee eee ee 18 Act 1874, corporations to be formed by associations of five OF MOLE PCTSONS v6 i. gees Soka! Bae RAS e Ms DRS eee dee 18 To have suecession by corporate name, common seal and HGIG-TEAIEY® scsae ceased alee eee Rh -aione ee oa tecak Guan tas 18 INDEX CLASSIFIED. 763 To make by-laws not inconsistent with law................ 18 Damages assessed against corporations, under Act of 1874, or individuals for taking private property appeal by eMther Partly ss pees cs ehkek doe? Gaaiathee ebaw abl ea aein 19 Act 1876 providing all conveyance of lands made by B. & Loan Associations after term expired shall be valid.... 19 Act 1887, where conveyance is made by an alien or foreign corporation to citizen of the U. S. or corporation right of CSCheal wie: sea es. pied Goecaee cw eames) Rees ee ake 20 Amended said Act of 1887, where officers of said corporation, after expiration of charter, convey; grantee shall receive VAG HUG e386. cise Sea Aas Gaels ain). MaMa nes awash aee wale 20 Act 1891, title to realty held for foreign corporation acquired by. JUGICIAN Sale. 5 aSrtawdce gg.) aiads siete aia ah salalin lal ens hola oles anon 21 Act 1891, corporations under state laws or U. 8S. to take by GeVISGs-ahcecaee eee woes eee ees ke Gher bens 3 4eNee saag 21 Act 1891, when corporation is dissolved owning land, Court may decree specific execution of contract ............. 22 Act 1893, extending time corporation may hold realty to five years from time authorized to hold same.............. 22 Act 1893, as to easements under condemnation proceedings.. 22 Act 1895, regulating practice in action brought to recover lands under eminent domain ........... 0. cee eee ce ees 24 Act 1895, amendment Act of 1889 concerning insurance and TOS iaicchan dea te, doe ee S EGGS: GHEE YES otllep tears 24 Act 1895, conveyance of realty by aliens and corporations TOD ULATEGy oeccse cence a eule Oa ae cles egand dis dngelliay mays eal BSG ells 25 COVENANTS RUNNING WITH UAND: Running with land, covenant extends to the thing in esse.... 164 Performance or non performance must affect quality or value Ot SPAIN: soit asians ete, ANS KERNS ateiie acd eeelgubab a d-oudeahave bar teaue 165 Not necessary covenant should be performed on the land.... 165 Sufficient if it tend to increase or diminish its value........ 165 Rent a covenant runs with the land ...................46. 165 When performance of covenant is made a charge, it binds ASSIONICES - ssccoiee veal: ROSE RA RNase es wad dad Eales ae 165 Runs in favor of successive assignees if it affects value of VATIG: cose vee ected teres Ra, ASAE EES ae, bp ale Sicdncalie, ee ata 166 When it runs in favor of assignee he can sue covenantor in his OW: DAM! » saa wawsw dd ho meee ease) Seatepe ee esgiga aus sides 166 Covenant to permit the removal of buildings from land..... 167 This covenant must have for its object something concerning TOA VEY uaciesare avsperd aa Gfae ease Bw Grane hE Gus el dasa Gleus Geredaneeleessodes 167 764 INDEX CLASSIFIED. There must be privity of estate between covenantur und COVEDANICE: scisecve anne @¥e REE EGEH Yee eda dee aoe ae 167 Assignees not bound by personal covenants between original DATLIES \ oh gcse SRA iis ee ahaa es Reon and. Ghiglee ued, 8A ktawes tone 167 Obligation of contracts ordinarily limited to persons who AVAICS) THON, 2 a ccssvesel cco Godvis Shiva dcentae a ade selaeeacwad Bk 169 If privity of contract be wanting, absence must be supplied DY DIIVItY Of CStAtE caus dea senen cdma eee yeee eb ee 169 Assignee bound only by covenants which concern the land itself ....... TET TEED beeen eee eee eee 169 Knowledge of assignee that assignor assumed to bind others does not Dind DIM ss. sassy aaieesa a Sessa Soueew ede 169 Covenant by son to maintain sister gives her no interest in the land conveyed by father ........... 0.0.0.0 c cee eeeee 170 Covenant to pay oil royalty runs with the land............. 170 A burden on land such as 4 lien or servitude not in conflict WAC Ae POG: Aces scien tine eee eiee Magar stapes ese ices Me cae 170-1 A building restriction fastened on title affects market value. 171 Court will refuse liquor license if covenant against selling ON PLreMISeS so. eek exes csc dew PELE RES REG MR SS Kae dadeice 6 172 Covenant to repair runs with land and binds assignee if not NAME, asic ss rqeaie 2s Gin wis erases ar svenen ttshe aes etarae bee 173 General covenant of warranty rung with land ............ 173 A remote grantee may recover against covenantor for breach. 1738 Tn law assignee of heir is assignee of ancestor .............. 178 A purchaser who has notice of defect in title and does not take covenant, is without remedy unless he avail himself of covenants of prior grantors ...................08.. 1738 EASEMENT OF SUPPORT, ETC. Owner of property entitled to absolute support............. 27 Mining property subservient to surface for support........ 28 Where adjoining owner of lot lower grade by ordinance en- LItIED TOWUPPOLE: seis. sisctuwricae Gare aise cee alee aaa he MEW 29 Hasement of light and air cannot be acquired by prescrip- TOD agp cacawiaatus Sy seeeeesaes Secaduaee Syewe xeeaks 30 Windows—easement of light and_ air not implied in a grant. .31-32 New Jersey holds to English doctrine of ancient lights...... 30 Landlord not liable for obstructing window unless by COVENANE: caisus cemiitre mone 46a eee ee ee. Aiea me's 80-31 Donnelly vy. Krosskop, case discussed ..............-..05. 31-2 INDEX CLASSIFIED. ESCHEAT, Trustee when cestuique trust is unknown for 7 years, land to 765 escheat, O. C. to appoint escheator ........ eae Oo Escheat of lands lying in more than one Co., caalieaten ap- pointed where most of the land lies.............. Ssaneete 34 Escheator to be granted letter of administration by register Of WINS sed cede adlendn) oii gabe seees. Seetsdwsaed 34 Escheator can be cited to file an account .................. 34 Escheator to file statement of realty seized of by decedent.. 384 '‘Escheat Court to examine persons touching matters in premi- SOS’ csisakiw west eGa bs aedeeeeeG saath cae aka ele ne 34 Escheat Court to frame issue to determine facts............ 35 Escheat Court to determine whether escheat has occurred. . 35 Escheat—aggrieved parties may appeal. ............ 00. eeee 35 Bscheator to give bond ....... cece cee cee cee cee tee cence 35 Escheator, Traverse proceedings ......... cece eee ee eee eee 3 Bscheator, insane persons and minors by committee may TTAVELSO: asec Rae Gale en Die Mee eg A ee Geko ee ae Ae, Oe 36 Persons first informing auditor general of escheat shall have one-third price of property ........... cee eee eee eee eens 36 Court to determine in case of dispute as to which shall re- ceive one-third proceeds ......-. ccc cee cee eee eee eee 37 Property being escheated 21 years and no proceedings had Commonwealth barred .......... cece eee cece eee eens 37 EJECTMENTS Ejectment, Common law action of .........-.- sanabaasiteeecrs wos 49 Boundary lines defined ..... Uviesier eee woe eee . +. 00-1 Of frequent occurrence till within late years ...... 49-50 D105 secede aves Suda s teers Pains, slana ah ae ~. 51 Ti, 1806 cei ckdnaee Shee e Sl. ge wd nekinete's esses O1-2 Preacipe for and description of ....... 6... eee neees 51-2 Rules of Court, abstracts of titles, ete .....-.....- 52 Deft. to plead before next term ........ .---sseees 52 Title not denied is admitted .........-..- ee eeeee 52 Th ASOT: oe el See cd sade s cee eet MEAT aa tS 52-3 Undivided interest in lands, tenants in common, etc. 58 Landlord admitted as deft ..........2-. eee eens 53 Judgment in default against parties not appearing. . 53 Trial to proceed for residue against other defts .... 53 766 INDEX CLASSIFIED Hjectment— Shall not abate by death of plfg ...............06- 53 Two verdicts between same parties, new ejectment not to be brought ......... Rise nance mu a ya 53-4 Verdict against verdict between same yards and third ejectment final ........ ... ce cece eee wee 53-4 Act of 1806 abolished fictitious parties ............ 54 Used to obtain possession of land . a x 54 Not proper remedy in Common Pleas _ teylae: GOWER i: vies Gee) ke Raat a Cea ae oe wee 54 Remedy for specific performance ................ 54 Enforces equity of plft. relative to land .......... 54 Compels payment of charges on land ............ 54 Lies OD; A WOTtPALe <.e08 eevee es esas esis gesisinee 55 Gives remedy to recover demiscd premises when notice to quit does not apply ................ 5d In substance, a bill for specific performance ...... 55 As a rule only lies where possession may be deliv- ered ........ Lavaser. Womans Maley Matus Gn ake anenne 55 Not the proper notion tore ene otinteed on land.. 56 Plf must show title in himself............ See Ewer S "56-7 Fee. simple, presumed in devisor unless the contra- ry be shown ......... io Gee OF Deft. permitted to show ouieuiine ‘title. a a eeGI RS 58 Plaintiff must recover on strength of his own title.. 58 Deft not to yield land until real owner ejects him.. 59 Deft. may show title in third person or a stranger.. 59 Notice given on ‘“‘New Year’s” too late where lease expires April 1 ........ aman -- 62 One verdict with judgment euncineee in catia CAS@S ......0. sp meceeaatantensne do iensaeGeueeetae-